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M/s SVIL Mines Ltd. (Amalgated Company of Amalgating Company M/s Texefx Marble Industries Ltd.) Versus DCIT, Central Circle-25, New Delhi

2017 (12) TMI 661 - ITAT DELHI

Scope of assessment u/s 153A - Disallowance of deduction u/s. 35D - Disallowance of claim of indexation on the sale of property - Held that:- We find that the additions made by the AO are beyond the scope of section 153A of the Income Tax Act, 1961, because no incriminating material or evidence had been found during the course of search so as to doubt the transactions. It was noted that in the entire assessment order, the AO has not referred to any seized material or other material for the year .....

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gainst the impugned Order of the Ld. CIT(A)-I, New Delhi relevant to assessment years 2005-06. 2. The grounds raised by the Assessee read as under:- 1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in confirming the disallowance of deduction of ₹ 21,611/- claimed u/s. 35D of the Income Tax Act, 1961. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in confirming the disallowance of claim of indexation on the sale of property for ₹ 2,32,06 .....

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require fresh investigation of facts and therefore, the same may be admitted. That Ld. CIT(A) as well as AO erred in law as well as on facts in sustaining or making addition u/s. 153A which was based on no search material. 4. It is well settled that the assessee can raise a legal ground or even fresh legal pleas or such legal questions at any stage of appellate proceedings. In support the appellant seeks to rely on the judgments of the Apex court in the case of CIT vs Varas International Pvt. Lt .....

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ecide or adjudicate this ground which is based on pure question of law. The appellant shall be highly grateful if the aforesaid ground is permitted to be urged which had not been raised on account of appropriate invalid legal advice and these are raising pure question of law and facts are already on record and no fresh material is required to be referred to. 3. Ld. Counsel of the Assessee requested that keeping in view of the decision of the Hon ble Supreme Court of India in the case of NTPC 229 .....

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es, we are of the considered view that in view of the decision of the Hon ble Supreme Court of India in the case of NTPC Limited 229 ITR 383 (Supra) as well as according to decision of the ITAT Special Bench, Mumbai in the case of M/s All Cargo Global Logistics Ltd vs DCIT, ITA Nos 5018 to 5022 & 5059/M/10, the additional grounds raised by the assessee vide its Application placed on record, are purely legal grounds and do not require fresh facts which is to be investigated and goes to the ro .....

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conducted u/s. 132 of the Act on 21.3.2007 in Surya Vinayak Group of cases. The assessee company is one of the Group companies of M/s Surya Vinayak Industries Ltd. The Group is headed by Sh. Sanjay Jain and his brother Sh. Rajiv Jain, resident of I-42, Ashok Vihar, Phase-I, New Delhi. The main allegation against this group was that they had taken a large number of accommodation entries in various group companies by paying cash to the various entry operators. After recording the satisfaction not .....

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se to the statutory notices u/s. 142(1) & 143(2) of the Act and questionnaire, the A.R. of the assessee attended the proceedings from time to time and filed the details. Thereafter the case was assessed at an income of ₹ 3,76,080/- after making certain disallowances vide his order dated 24.12.2009 passed u/s. 153A/143(3) of the I.T. Act, 1961. 7. Against the aforesaid assessment order dated 24.12.2009, assessee preferred an appeal before the Ld. CIT(A), who vide impugned order dated 05 .....

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9.8.2017 of the Hon ble Supreme Court of India in the case of Commissioner of Income Tax-III, Pune vs. Sinhgad Technical Educational Society reported in (2017) 84 taxmann.com 290 (SC) as well as the decisions of the Hon ble Delhi High Court passed in the case Commissioner of Income Tax vs. Kabul Chawla reported (2016) 380 ITR 573 (Del.) and in the case of Principal Commissioner of Income Tax (Central) -2 vs. Index Securities (P) Ltd. wherein the Hon ble High Court has held that if the additions .....

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n the course of search and as such are bad in law being beyond the scope of jurisdiction u/s. 153A of the I.T. Act and therefore stated that assessment order passed by the AO, is bad in law and is liable to be quashed. 9.1 On the other hand, Ld. DR relied upon the order of the authorities below and stated that the provision of section 153A has rightly been applied in the case of the assessee on the material available with them. He relied upon the following judgments of the Hon ble High Courts an .....

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mann.com 311 (Gujarat) - CIT v Classic Enterprises 35 taxmann.com 244 (Allahabad) 10. We have heard both the counsel and perused the relevant records available with us, especially the orders of the revenue authorities and the cases referred by the Ld. Counsel of the Assessee as well as by the Ld. CIT(DR). We find that the additions made by the AO are beyond the scope of section 153A of the Income Tax Act, 1961, because no incriminating material or evidence had been found during the course of sea .....

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d upon conjectures and surmises and hence, the additions made is not sustainable in the eyes of law, because this issue in dispute is now no more res-integra, in view of the decision dated 29.08.2017 of the Hon ble Supreme Court of India in the case of Commissioner of Income Tax-III, Pune vs. Sinhgad Technical Educational Society reported in (2017) 84 taxmann.com 290 (SC) as well as the decisions of the Hon ble Delhi High Court passed in the case Commissioner of Income Tax vs. Kabul Chawla repor .....

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- Whether as per provisions of section 153C, incriminating material which was seized had to pertain to assessment years in question - Held, yes - Whether where loose papers found and seized from residence of President of Assessee, an educational institution, indicating capitation fees received by various institutions run by assessee did not establish co-relation documentwise with assessment years in question, notice issued under section 153C had rightly been quashed and set aside - Held, yes (i .....

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mandatorily issued to the person searched requiring him to file returns for six Ays immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the .....

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vailable with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an ITA Nos. 707, 709 and 713 of 2014 of assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 .....

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an be interfered with by the AO while making the assessment under Section 153 A 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. 38. The present appeals concern AYs, 2002-03, 2005- 06 and 2006-07.On the date of the search the said assessments already stood complet .....

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