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The DCIT, Central Circle-30, New Delhi Versus Shri Ankush Saluja

2017 (12) TMI 472 - ITAT DELHI

Addition u/s 68 - assessment u/s 153A - Held that:- As the assessee submitted before Ld. CIT(A) that original return of income was filed under section 139(1) of the Act on 30th May, 2008 which was assessed under section 143(3) on returned income of ₹ 4,97,60,866. It is, therefore, clear that prior to the search the assessment under section 143(3) was completed. It is also an admitted fact that during the course of search and seizure no incriminating evidence as regards the addition under s .....

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HRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Revenue : Ms. Rachna Singh, CIT-D.R. For The Assessee : None ORDER PER BHAVNESH SAINI, J.M. This appeal by the Revenue has been directed against the order of the Ld. CIT(A)-30, New Delhi, dated 25th January, 2016, for the A.Y. 2007-2008, challenging the deletion of addition under section 68 of the I.T. Act, 1961, on account of unexplained cash credit. 2. Briefly, the facts of the case are that a search and seizure .....

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me of ₹ 4,97,60,870. The A.O. during the assessment proceedings, found that assessee has taken unsecured loans from different parties. The A.O. after considering the explanation of assessee treated the unsecured loans in a sum of ₹ 11,90,57,300 as unexplained under section 68 of the I.T. Act and made the addition. The assessment was completed under section 153C r.w.s.153A of the I.T. Act, dated 14th March, 2014. 3. The assessee challenged the aforesaid addition before the Ld. CIT(A) .....

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h credit, no addition could be made because no assessment was pending on the date of the search. The Ld. CIT(A) considering the explanation of assessee in the light of material on record, deleted the addition following the decision of the Hon ble Delhi High court in the case of Kabul Chawla (supra). The findings of the Ld. CIT(A) in paras 5.3 and 5.4 of the order are reproduced as under : 5.3 Findings: The findings are as under :- 5.4 I have carefully considered assessment order, written submiss .....

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.2012, no incriminating document was found. It has been further submitted that the earlier assessment u/s 143(3), was completed on 18.12.2009, before initiation of action u/s 132 on 12.01.2012 and therefore, the assessment was not abated at the time of initiation of second search on 12.01.2012, consequence of which, the assessment order passed by the A.O. on 14.3.2014, is challenged in this appeal. (ii) It has been further submitted by the Appellant that subsequent to the search and seizure acti .....

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tted by the appellant that decision of the Hon ble jurisdictional High Court of Delhi, in the case of CIT vs. Kabul Chawla 61 Taxmann.com 412 (Del.), is squarely applicable to the facts of the appellant. CONCLUSION: In view of the above, it is clear that: (a) The original assessment order dated 18.12.2009, passed u/s 143(3), was completed before the initiation of search and seizure action u/s 132, on 12.01.2012. Therefore, I hold that no assessment/ reassessment proceedings, were abated as on 12 .....

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Chawla 61 Taxmann.com 412 (Del), which is squarely applicable to the facts of the appellant. In view of the above, I agree with the arguments of the appellant and therefore, addition made by the A.O. u/s 68, in absence of any incriminating document/evidence, cannot be sustained. Accordingly, ground no. 3 and 8, are hereby, allowed. 4. The Ld. D.R. relied upon the order of the A.O. and also filed written submissions in which it is briefly highlighted that the provisions of Sections 153A/153C are .....

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A.No.56 of 2011, decision of Kerala High Court in the case of E.N. Gopakumar vs. CIT (2016) 75 taxmann.com 215, decision of Allahabad High Court in the case of CIT vs. Kesarwani Zarda Bhandar Sahson ITA.No.270 of 2014, decision of Kerala High Court in the case of CIT vs. St. Francis Clay Décor Tiles 385 ITR 624 and decision of Hon ble Delhi High Court in the case of Smt. Dayawanti Gupta vs. CIT 390 ITR 496. The Ld. D.R. submitted that the department has not accepted the decision of Hon bl .....

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tion 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment 6.1. The Hon ble Delhi High Court in its recent decision in the case of Pr. CIT vs. Meeta Gutgutia 395 ITR 526 considering its earlier decisionS in the case of Kabul Chawla (supra) and Smt. Dayawanti Gupta .....

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ditions of franchisee commission. 70. The above distinguishing factors in Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any .....

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