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Gahoi Chemicals Pvt. Ltd. Versus Asstt. Commissioner of Income Tax, New Delhi

2017 (12) TMI 346 - ITAT DELHI

Addition u/s 153A - absence of incriminating material found during the course of search - unexplained share capital - Held that:- AO asked the assessee about the increase in the share capital and categorically stated that the assessee was asked to furnish the confirmation from all six persons but whom shares were allotted year by year alongwith the copies of their bank statement, audited account and ITRs for the year under consideration which were furnished by the assessee. The AO was satisfied .....

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10,00,000/- which was included in the above said amount and already added on account of shares allotted to M/s Jeevandhara Waters Pvt. Ltd. It is, therefore, clear that no fresh incriminating material was found during the course of search which took place on 19.01.2009. - Thus we delete the addition made by the AO in the absence of incriminating material found during the course of search held on 19.01.2009, by passing the assessment u/s 153A r.w.s. 143(3) of the Act on 29.12.2010, which wa .....

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d together so these are being disposed off by this consolidated order for the sake of convenience and brevity. 3. At the first instance, we will deal with the appeal in ITA No. 3049/Del/2013 for the assessment year 2005-06. Following grounds have been raised in this appeal: 1.1 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 1.1 of the appeal being BECAUSE the appellant cannot be held to be a "person" subjected to valid search and seizure under .....

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ook into the validity of search operation and it was his legal obligation to look into and adjudicate upon the same.' 1.3 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 1.3 of the appeal being 'BECAUSE valid search operation is the foundation for invoking the provisions of section 153A and the assessment order passed without looking into and adjudicating upon this basic issue is liable to be declared as void ab-initio.' 1.4 BECAUSE the Ld. C .....

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director / officer / employee of the appellant company as evident from the punchnama drawn. 2.1 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 2.1 of the appeal being 'BECAUSE apart from the inherent lack of jurisdiction on the grounds mentioned herein fore, the notice under section 153A has neither been validly issued nor served in accordance with the provisions of law and the assessment order passed in pursuance thereof, is liable to be declared a .....

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void ab-initio. 2.3 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi erred in law in dismissing the appeal and holding that Validity of search' can only be questioned before Hon'ble High Court or Hon'ble Supreme Court under Writ Jurisdiction and that other proceeding such as drawing a separate Punchnama, separate search warrant etc. do not vitiate the validity of search and that in any case the validity of search and its procedures cannot be a matter of adjudication under section 250 of I.T .....

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n 153A. 3.2 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 3.2 of the appeal being 'BECAUSE on a due consideration of facts and circumstances of the case, appreciation of submissions made by the appellant at all stages of the assessment proceedings, the learned Assessing Officer should have accepted the appellant's return and no further tax/interest should have been levied on him in the impugned assessment.' 3.3 BECAUSE the Ld. CIT(A)-XXXIII .....

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arch carried out on the group as a whole. 3.4 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 3.4 of the appeal being 'BECAUSE under the facts and circumstances of the case addition made to the returned loss are beyond the scope of provisions of section 153A of the Act.' 4.1 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi erred in law in dismissing the Ground No. 4.1 of the appeal that BECAUSE the Ld. Assessing Officer has erred in law and on facts in r .....

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rbhi Resources Private Limited ₹ 15,00,000/- M/s. Wellfit Traders Private Limited ₹ 20,00,000/- M/s. Amichem Petro Product Pvt. Ltd. ₹ 10,00,000/- M/s. Madan Real Estate Pvt. Ltd. ₹ 10,00,000/- M/s. Shree Leasing & Finance Limited ₹ 20,00,000/- M/s. Gauraj International Pvt. Ltd. ₹ 20,00,000/- TOTAL Rs. 95,00,000/- as unexplained under section 68 of the Act.' 5.2 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi erred in law in dismissing the Ground No. 5.2 of .....

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ecord and so also without confronting the same to the assessee, no such addition could have been made by the learned Assessing Officer.' 5.4 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi erred in law in dismissing the Ground No. 5.4 of the appeal that 'BECAUSE all the evidences in relation to the aforesaid share application / share capital raised during the year were furnished by the appellant and no infirmity was found therein or pointed out by the Assessing Officer, therefore, addition is b .....

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h material relating to stock for other assessment years.' 6. BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 6 of the appeal being 'BECAUSE interest under various sections could not have been included in the computation of tax demand.' 7. BECAUSE the order appealed against is contrary to fact, law and principles of natural justice. 4. From the aforesaid grounds, it is gathered that the main grievance of the assessee in this appeal relates to .....

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he assessee belongs and the assessee s case was centralized from Kanpur to Delhi. A notice u/s 153A of the Act was issued to the assessee. In response to the said notice, the return showing a loss of ₹ 4,17,123/- (same as in the original return) was filed on 10.05.2007. However, the assessment u/s 153A r.w.s. 143(3) of the Act was completed at an income of ₹ 5,83,177/- vide order dated 28.12.2007. Thereafter, a search and seizure operation was again carried out at the premises of the .....

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id up share capital of ₹ 1,06,02,000/-. The assessee submitted the details of paid up share capital as under: S. No. Name of shareholders Amount Documentary evidence in order to substantiate the identity, creditworthiness and genuineness of the transactions. 1. M/s. Surbhi Resources Private Limited ₹ 15,00,000 Copy of Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 2. M/s. Wellfit Traders Private .....

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, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 5. M/s. Jeevandhara Waters Pvt. Ltd. ₹ 10,00,000 Copy of Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 6. M/s. Shree Leasing & Finance Limited ₹ 20,00,000 Copy of. Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 7. M/s. Gauraj .....

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. The AO asked the assessee to produce the Directors of the share applicant companies for personal deposition. In compliance, the assessee attended the proceedings and furnished a letter dated 25.12.2010. The AO did not find merit in the submission of the assessee and observed that the letter dated 25.12.2010 was nothing but the repetition of facts given in the earlier letter dated 06.12.2010. He also observed that the assessee had shown its inability to produce the parties on the pretext that t .....

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the matter to the ld. CIT(A) and furnished the written submission which is summarized by the ld. CIT(A) in para 5.2 of the impugned order, as under: (i) During the year under appeal appellant filed its return of income in response to notice u/s 153A of the Income Tax Act, 1961 on 15-02-2010 declaring a loss of ₹ 14,28,183/-. Against this Return of Income assessee is assessed at the income of Rs.l,00,83,177/- vide order passed u/s 153A / 143(3) of the Income Tax Act, 1961 29.12.2010. In th .....

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wing documents/ evidences to support the entries of share applicants :- The details of share applicants Company are as per followings: * M/s. SURBHI RESOURCES PRIVA TE LIMITED OLD ADDRESS - KESAR APARTMENT, B-4, JHOTAWALA ROAD, KOLKATA -700059 NEW ADDRESS - 67B, BALLYGUNGE CIRCULAR ROAD, PARK TOWER, 4TH FLOOR, ROOM NO. B-12, KOLKATA - WEST BENGAL 700019 INDIA PAN-AAHCS9873M Presently assessed under - Area Code WBG, Jurisdiction ITO-WD-10(4), Calcutta Building - 3, Govt. Place West, Calcutta. We .....

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e are investments of the Company to the tune of ₹ 2,68,85,000/- which includes share application money paid to us. The Company is of substantial worth. We further enclosed therewith the Extract from the record of MCA of Government of India Portal to evidence the change of address. * M/S. WELLFIT TRADERS PRIVATE LIMITED OLD ADDRESS- 7, GRANT LANE, ROOM NO. 217, KOLKATA-700012. NEW ADDRESS-B-4, KESHAR APARTMENT, JHOWTALA ROAD, KOLKATA , WEST BENGAL-700059. PAN- AAACW4232D Presently assessed .....

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utta. This has been duly disclosed in the Schedule - 3 of Investment to the Balance Sheet. There are investments of the Company to the tune of ₹ 3,22,50,000/- which includes share application money paid to us. The Company is of substantial worth. We further enclosed therewith the Extract from the record of MCA of Government of India Portal to evidence the change of address. * AMICHEM PETRO PRODUCTS PRIVATE LIMITED REGD. OFFICE-4, BALLAV DAS ST 4TH FLOOR JORASANKO, KOLKATA, WEST BANGAL - 70 .....

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From this Company we have received Share Application Money of ₹ 10,00,000/- vide Cheque No. 408381 dated 22.07.2004 drawn on ABN AMRO BANK BR. ROAD, KOLKATA. This has been duly disclosed in the Schedule - D of Investment to the Balance Sheet of share Applicant Company. This is also disclosed in PORTFOLIO statement - entry dated 22.7.2004. There are investments of the Company to the tune of ₹ 7,60,14,600/- which includes share application money paid to us. The Company is of substanti .....

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Application Money of ₹ 10,00,000/- vide Cheque No. 470101 dated 20.07.2004 drawn on IDBI Bank, Park Street, Calcutta. This has been duly disclosed in the Schedule - C of Investment to the Balance Sheet of share Applicant Company. There are investments of the Company to the tune of ₹ 2,65,01,500.00 which includes share application money paid to us. The Company is of substantial worth. We further enclosed therewith the Extract from the record of MCA of Government of India Portal to ev .....

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Director's Report, Auditors Report, Balance Sheet, Profit & Loss Account with Annexures F. Y. 2004-05. From this Company we have received Share Application Money of ₹ 10,00,000/-vide Cheque No. 038546 dated 20.7.2004 drawn on ABN Amro Bank Br. Road, Kolkata. This has been duly disclosed in the Schedule - C of Investment to the Balance Sheet. There are investments of the Company to the tune of ₹ 5,18,44,000/- which includes share application money paid to us. The Company is o .....

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D-2/Berhampur, Building - Beherampur, Orissa. We enclosed therewith copy of Acknowledgement of IT Return for A. Y. 2005-06, Copy of Bank Statement, Director's Report, Auditors Report, Balance Sheet, Profit & Loss Account with Annexures F. Y. 2004-05. From this Company we have received Share Application Money of ₹ 20,00,000/- vide Cheque No. 626659 dated 20.07.2004 drawn on IDBI Bank, Brabourne Road, Calcutta. This has been duly disclosed in the Schedule - D of Investment to the Bal .....

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IT-CIRCLE-10, Calcutta, Building - 3, Govt. Place West, Calcutta. We enclosed therewith copy of Acknowledgement of IT Return for A.Y. 2005-06, Copy of Bank Statement, Director's Report, Auditors Report, Balance Sheet, Profit & Loss Account with Annexures F. Y. 2004-05. From this Company we have received Share Application Money of ₹ 20,00,000/- vide Cheque No. 556979 dated 27.7.2004 drawn on IDBI Bank, Brabourne Road, Calcutta. This has been duly disclosed in the Schedule - 3 of Inv .....

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mpany is duly mentioned. All the Companies are duly appearing in the Portal of Ministry of Corporate Affairs. The shares against share application money has been allotted vide resolution of board of directors and due form has been submitted to the Registrar of Companies, through MCA portal. (iii) The assessing officer in original assessment has accepted the submission of the appellant company and no addition was made while passing the original assessment order dated 31-12-2008 which was filed be .....

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lahabad in the case CIT(c) Vs. Kanpur Vs. Suit Shaila Aggarwal (2011) 16 Taxmann .com 232 (All.), Meghmani Organics Ltd. Vs. DCIT, Ahmedabad (2010) 6 ITR (Trib) 360 (Ahm.), LMJ International Ltd. (2008) 119 TTJ 214 (Calcutta). 8. The ld. CIT(A) after considering the submissions of the assessee observed that the jurisdiction of the Assessing Officer u/s 153A of the Act is to assess total income for the year and not restricted to seized material. The reliance was placed on the judgment of the Hon .....

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the Act. The ld. CIT(A) held that the AO had the jurisdiction to assess total income including addition u/s 68 of the Act for share capital or share application money, even though no addition was made in original assessment proceedings. The ld. CIT(A) observed that on the basis of documents provided by the assessee, the AO made fresh enquiry by issuing summons u/s 131 of the Act calling for various details in support of genuineness of transaction and that all the summons were not either complied .....

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ansaction and credit worthiness of the creditors. The reliance was placed on the judgment of the Hon ble Delhi High Court in the case of CIT Vs M/s N. R. Portfolio Pvt. Ltd. in ITA No. 134 of 2012 order dated 21.12.2012. The ld. CIT(A) confirmed the addition made by the AO by observing as under: In view of above Judicial pronouncement. I think, once the assessing officer has doubted the documents furnished by appellant and conducted enquiry which creates doubts about genuineness of the transacti .....

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ssessing officer has conducted enquiry by issuing summons which remains uncomplied. Hence, the present addition is just not on same facts. In view of the above, & considering facts & circumstances of the case, I confirm the addition made by A.O. u/s 68 & dismiss the ground of appeal. 9. Now the assessee is in appeal. The ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the issue relating to receipt of share applicati .....

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are applicants. It was stated that although assessment order was made u/s 153A of the Act, however, no reference was made to any incriminating material found during the course of search. As such, the addition made by the AO and sustained by the ld. CIT(A) was not justified. The reliance was placed on the following case laws: CIT Vs Lancy Constructions (2016) 237 Taxman 728 (Kar.) CIT Vs Kabul Chawla (2016) 380 ITR 573 (Del.) CIT Vs Anil Kumar Bhatia (2013) 352 ITR 493 (Del.) CIT Vs Chetan Das La .....

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(2016) 47 CCH 159 (Del. Trib.) CIT Vs Nova Promoters & Finlease (P) Ltd. 342 ITR 169 (Del.) CIT Vs Gangeshwari Metal (P) Ltd. (2014) 361 ITR 10 (Del.) CIT Vs Orissa Corporation (P) Ltd. (1986) 159 ITR 78 (SC) Pr. CIT Vs Softline Creations (P) Ltd. (2016) 387 ITR 636 (Del.) CIT Vs Meeta Gutgutia (2017) 395 ITR 526 (Del.) 10. The ld. Counsel for the assessee also stated that additions on account of stock were made for the assessment year 2007-08 but the ld. CIT(A) deleted those additions and f .....

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ted the observations made by the authorities below and strongly supported the impugned order passed by the ld. CIT(A). It was further submitted that as a result of search and seizure documents were seized on the basis of which additions had been made on account of unaccounted stock for other assessment years i.e. assessment years 2007-08 and 2008-09 u/s 153A of the Act. Therefore, the seized material can be relied upon to draw the inference that there can be similar transactions throughout the p .....

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information could be in the form of statement recorded or inventory made or noticing of circumstances or in any other form. It was further stated that a single piece of information may not be incriminating individually but when put in juxtaposition of other informations or circumstances, it very well becomes incriminating and that in the present piece of information (material) put in juxtaposition of the fact that none of the so-called share holder companies complied with the summons u/s 131 of .....

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ter the summons u/s 131(1) of the Act remained non-complied, assessee refused to produce the shareholder and penalty proceedings culminated into levying of penalty as the assessee could not put up any plausible defense, there was certainly fresh material to form reason to believe that income had escaped assessment and it is a case of otherwise disturbing completed assessment but for on-going proceedings u/s 153A of the Act. The reliance was placed on the following case laws: CIT-VII Vs Chetan Da .....

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om 60 (Kol-Trib.) NIIT Vs CIT (2015) 60 Taxmann.com 313 (Del.-Trib.) 12. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that a search in the Kurele Group to which the assessee belonged was carried out first time on 01.09.2005 and the assessment u/s 153A of the Act was framed on 28.12.2007 which is evident from page nos. 14 to 16 of the assessee s paper book. The AO discussed the i .....

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ons to whom shares were allotted during the year along with copies of their bank statements, audited accounts for the year under consideration and ITR s for the year under consideration. In response to that the assessee has furnished the same. On perusal of the details furnished in respect of paid-up share capital, it has been noticed that during the year under consideration the assessee company has allotted 100,000 shares of ₹ 10/- each to Jeewandhara Waters (P) Ltd. 1.2 On perusal of the .....

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lance sheet of Jeewandhara Waters (P) Ltd. is Loans & Advances. The schedule of Loan & Advances also did not contain the name of the assessee company. Thus, the amount of ₹ 1,000,000/-, which the assessee has shown to have received from Jeewandhara Waters (P) Ltd. on account of share capital is not reflected in the balance sheet of Jeewandhara Waters (P) Ltd. as on 31.3.2005. Under these circumstances the claim of the assessee regarding issue of share capital to Jeewandhara Waters .....

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nitiated separately. (addition of ₹ 1,000,000/-) 13. On perusal of the aforesaid assessment order, it is crystal clear that the AO asked the assessee about the increase in the share capital and categorically stated that the assessee was asked to furnish the confirmation from all six persons but whom shares were allotted year by year alongwith the copies of their bank statement, audited account and ITRs for the year under consideration which were furnished by the assessee. The AO was satisf .....

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377; 10,00,000/- which was included in the above said amount and already added on account of shares allotted to M/s Jeevandhara Waters Pvt. Ltd. It is, therefore, clear that no fresh incriminating material was found during the course of search which took place on 19.01.2009. It is also noticed that the ld. CIT(A) in the impugned order at page no. 17 noted as under: In appellant s case, a result of search & seizure, documents were seized on the basis of which addition has been made on unaccou .....

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notings also, it is clear that no incriminating material was found during the course of search for the assessment years 2005-06 and 2006-07 which are under consideration. The ld. CIT(A) stated in the impugned order that the addition had been made on account of unaccounted stock for the assessment years 2007-08 and 2008-09. Therefore, it is an admitted fact that there was no incriminating material as regards to unaccounted stock, if any, for the years under consideration. In the present case, the .....

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d during the course of search held on 19.01.2009 still the impugned additions were made for the years under consideration. 15. On a similar issue the Hon ble Jurisdictional High Court in the case of CIT Vs Kabul Chawla reported at (2016) 380 ITR 573 held as under: The legal position that emerges on a perusal of section 153A and section 132 of the Income-tax Act, 1961, is as under : (i) Once a search takes place under section 132 of the Act, notice under section 153A(1) will have to be mandatoril .....

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the six years previous to the relevant assessment year in which the search takes place. The Assessing Officer has the power to assess and reassess the "total income" of the six years 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 assessment years in which both the disclosed and the undisclosed income would be brought to tax. (iv) Although section 153A does not say that additions should be st .....

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eiterated and the abated assessment or reassessment can be made. The word "assess" in section 153A is relatable to abated proceedings (i.e., those pending on the date of search) and the word "reassess " to completed assessment proceedings, (vi) In so far 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 assessment year on the basis .....

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original assessment. It has further been held as under: On the date of the search the assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed." 16. Similarly, in the case of Pr. CIT Vs Meeta Gutgutia Prop. M/s Ferns and Petals (2017) 395 ITR 526 (Del.), the Hon ble Jurisdictional High Court by distinguishing the decision in the case of Smt. Dayawanti Gupta Vs CIT reported at (2016) .....

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