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2016 (9) TMI 745 - ITAT DELHI

2016 (9) TMI 745 - ITAT DELHI - TMI - Assessment u/s 153A - Addition u/s 68 - Held that:- Respectfully following the binding precedents of the Hon’ble Jurisdictional High Court in CIT vs. Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) and in Principal Commissioner of Income Tax v/s. Kurele Paper Mills P. Ltd. (2015 (9) TMI 115 - DELHI HIGH COURT ) we dismiss appeal of Revenue, as the addition u/s. 68 of the I.T. Act, 1961 as unexplained investment in the share application money was not made, .....

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against the Order dated 17.2.2014 passed by the Ld.CIT(A)-IV, New Delhi for Assessment Year 2006-07 on the following grounds: 1. That the CIT(A) has erred in law and on facts of the case in treating the addition made to be beyond the scope of section 153A of the I.T. Act. 2. That the CIT(A) erred in law and on facts of the case in holding that the original assessment cannot be disturbed as there was no incriminating material found during search. 3. That the CIT(A) erred in law and on facts of t .....

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ent in share application money u/s. 68 of the I.T. Act, 1961. For the sake of convenience, all the grounds of appeal are taken up together , as they are inter-related. The brief facts of the case are that assessee company was incorporated on 1.10.1999 as Bhim Polymers Pvt. Ltd. and subsequently its name was changed to 'Mahagun Technologies Pvt. Ltd.' It is one of the group companies of Mahagun Group of Companies. In this case Survey u/s 133A of the I.T. Act was conducted at the business .....

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ong with the questionnaire was issued by the AO on 13.08.2010 in which the Ld. AO has asked the assessee to explain the contents of certain pages seized during the search on 27.08.2008. In response to the same, the assessee filed the reply and participated in the assessment proceedings. Ld. AO completed the assessment u/s. 153A read with section 143(3) of the I.T. Act, 1961 vide his order dated 28.12.2010 and made the addition of ₹ 46,24,000/- u/s. 68 of the I.T. Act, 1961 as unexplained i .....

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t the time of hearing, the assessee was not represented by any authorized representative. We have heard the Ld. DR and also perused the material on record. The Ld. DR supported the order of Ld. AO. However on perusal of the order of Ld. CIT(A), we find that Ld. CIT(A) vide para no. 6.5 at page no. 13 he has stated that there is no dispute by the AO that as on the date of search on 26.8.2008 (on the basis of which the Ld. AO issued notice u/s. 153A), no assessment was pending for the year under c .....

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vs. DCIT (137 ITD 287) ii) Mumbai, ITAT Bench in the case of ACIT vs. Pratibhs Industries Ltd. order dated 29.12.2012. iii) Mumbai ITAT Bench in the case of Gurinder Singh Bawa vs. DCIT (2012) Taxmann.com 328. iv) ITAT, Delhi Bench decision in the case of Kusum Gupta vs. DCIT (ITA No. 4873/Del/2009, 2510, 2532, 2833/Del/2011) vide order dated 28.3.2013. In this case it was held that addition on account of alleged non-genuine gifts could not be made in the assessments made u/s. 153A when no incr .....

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ion. Ld. CIT(A) held that addition made by the AO to be erroneous as they were beyond the scope of Section 153A and in view of that, he directed the addition to be deleted. 3.2 Thus, we find that learned CIT(Appeals) has given a specific finding of fact that no incriminating material was found or seized during the course of search and seizure operation u/s. 132 of the Act in the case of the assessee; as far as addition of ₹ 46,24,000/- u/s 68 of I.T. Act is concerned : and further, that as .....

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73 (Delhi) wherein the Hon ble jurisdictional High Court held as under:- 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned ITA Nos. 707, 709 and 713 of 2014 of decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six Ays i .....

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s in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that .....

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he word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only o .....

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