TMI Blog2017 (9) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... 33/Del/2014, C.O. No. 92, 93, 94, 95, 96/Del/2017 - - - Dated:- 30-8-2017 - Shri G.D. Agrawal, Hon ble President And Shri Sudhanshu Srivastava, Judicial Member Appellant by : Smt . Pramita Tripathy, CIT DR Respondent by : Shri R.S. Singhvi, CA ORDER Per Sudhanshu Srivastava, Judicial Member These are a group of five appeals filed by the department and the corresponding C.O.s filed by the assessee. Since the issues involved were common, they were heard together and are being disposed of through this common order. 2. At the outset, the ld. AR sought to file revised grounds for the C.O.s filed by the assessee which we accept and take on record. Since all the appeals and C.O.s have identical issues, it was agreed by both the parties that I.T.A. No. 4026/Del/2014 and its corresponding C.O. bearing no. 92/Del/2016 will be taken as the lead case. Accordingly, I.T.A. 4026 and C.O. 92 are taken as the lead case. 3. The grounds of appeal in ITA No.4026/D/2014 are as under:- 1. On the facts and in the circumstances of the case, the CIT (A) has erred in deleting the addition of ₹ 1,51,78,387/- made by AO on account of derived benefit in terms of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch and seizure operation u/s 132 of the Income Tax Act, 1961 was carried out on 21.01.2011 in the M/s Dharampal Satyapal group of cases. During the year under consideration, the return of income in the case of Shri Rajiv Kumar i.e. the assessee in ITA 4026 and CO 92 was filed declaring an income of ₹ 72,85,091/-. The assessee had income from salary, house property, income from business/ profession, income from capital gain and income from other sources. Further on 28.4.2004, the assessee had received 1,34,907 shares of M/s Dharampal Satyapal Ltd. of ₹ 10/- face value at the price of ₹ 10/- per share from M/s Global Ltd., a company where his wife was a Director and was also holding 11.24% of the shares. The assessee was also holding 16.27% shares of M/s Baba Global Ltd. The Assessing Officer was of the opinion that the book value of shares of M/s Dharampal Satyapal Ltd., as on the date of transfer was much higher, and since the wife of the assessee was a Director in M/s Baba Global Ltd, the benefit obtained by the assessee was in the nature of income as defined under section 2(24)(iv) of the Income Tax Act. Therefore, the assessee was issued a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(24)(iv) and clubbed u/s 64 of the Act. 6.5 Further, the Assessing Officer also made an addition of ₹ 1,90,14,190/- in the case of Shri Ritesh Kumar and of ₹ 1,90,14,190/- in the case of Shri Raghav Kumar under similar circumstances. 6.6 All these assessees approached the first appellate authority who deleted the additions in the case of all the five assessees by holding that no benefit u/s 2(24)(iv) can be said to have been obtained by purchase of unquoted shares at face value under a business re-arrangement between the family members and approved by the Hon'ble Delhi High Court and combined with the fact that the shares could not be sold to outsiders. 6.7 The ld. CIT(A), however, dismissed the assessees legal ground regarding the validity of proceedings u/s 153A. 7. Now, before the ITAT, the assesses are challenging the validity of the proceedings u/s 153A by way of C.O.s and all the five appeals preferred by the department challenge the deletion by the ld. CIT(A). 8. The Ld. AR submitted that while making the additions, the Assessing Officer has not made reference to any incriminating material found during the search regarding transfer of shares. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on should be given to the facts of the case. Ld. CIT DR also referred to the provisions of section 2(24)(iv) and submitted that under this section, even future benefits are covered. She also referred to page 4 of the assessment order and submitted that during the assessment proceedings, the assessee had cooperated in determination of the share value and had offered the value of ₹ 95.67 per share as the book value. She also submitted that the case laws relied upon by the ld. CIT (A), while deleting the addition, were factually different and, therefore, his reliance on the same was misplaced. 10. We have heard the rival submissions and carefully perused the relevant material placed on record. It is undisputed that the transfer of shares was done in pursuance to a restructuring of the family business and scheme of restructuring was duly approved by the Hon'ble Delhi High Court. The order u/s 394 of the Companies Act 1956 was passed by the Hon'ble Delhi High Court on 7.8.2003. It is also undisputed that the shares transferred were amongst the family members of the family held companies and no shares were sold to the outsiders. It is also undisputed that the buyers/asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med or otherwise withheld from the assessment an addition under Section 153A was warranted - based on the proposition taught by this Court in judgment dated 28.08.2015 in ITA 707/2014 titled: CIT vs Kabul Chawla. Therefore, we concur with the ITAT s opinion in this regard. The search and seizure proceedings in such cases are undoubtedly meant to bring to tax amount that are to be determined on the basis of materials seized in the course of such searches; permitting anything over and above that would virtually amount to letting the Revenue have a third or fourth opinion as it were. Searches - to quote the view of Attorney-General (NSW) vs Quin (1990) HCA 21 in another context are not the key which unlocks the treasury of the Revenue s jurisdiction in regard to matters that had attracted attention in the regular course of assessment. 10.2 In the appeals before us, it is not the case of the department that any material disclosing the issue of transfer of shares was withheld from the assessment and was found and seized during the course of search. It is also not the case of the department that any other incriminating material which could point out to such transfer of shares was ..... 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