TMI Blog2018 (3) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... search, as such, nothing was abated on the date of search, and hence in the absence of any incriminating material found from the premises of the assessee, additions made in both the years were outside the scope of Section 153A - Decided against revenue - ITA No. 5051/DEL/2014, ITA No. 5052/DEL/2014, C.O No. 175/2017 And C.O No. 171/2017 - - - Dated:- 23-3-2018 - SHRI N. K. SAINI, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER For The Respondent : Ms. Shefali Swroop. Sr. DR For The Applicant : Sh. Rajiv Saxena, Adv, M/s Sumangala Saxena, Adv ORDER PER SUCHITRA KAMBLE, JM This appeals and cross Objections are filed by the Revenue and Assessee against the orders dated 20/06/2014 passed by CIT(A)-XXX1, New Delhi. 2. The grounds of appeal are as under:- ITA No. 5051/DEL/2014 ( A.Y 2004-05) l. The Commissioner of Income Tax (Appeals) has erred in law and on facts as well in deleting the addition of ₹ 3,08,00,000/- made by the A.O on account of unexplained cash credit u/s 68 of the Income Tax Act, 1961. 2. The Commissioner of Income Tax (Appeals) has erred in law and on facts as well in not invoking her power u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the assessee was centralized u/s 127 of the Act vide order dated 17.08.2011 and the jurisdiction over the assessee s case was assigned to the Assessing Officer, Central Circle- 16, New Delhi. Thereafter, a notice u/s 153A of the Act dated 5.9.2011 was issued calling upon the assessee to prepare and file a true and correct return of its total income assessable for the assessment year under consideration. Since the assessee did not comply with this notice, therefore, the Assessing Officer issued a notice u/s 142(1) of the Act dated 28.9.2011 alongwith a detailed questionnaire calling for the various information and documents. In response to this also, the assessee neither filed its return of income for the assessment year under consideration nor any information or document till the date of compliance i.e. 7.10.2011. However, subsequently on 12.12.2011, the assessee filed a reply stating that its return already filed for the assessment year 2004-05 be treated as return in compliance to the notice u/s 153A of the Act. Accordingly, the Assessing Officer treated this return as return filed in compliance to the notice u/s 153A of the Act wherein the assessee declared a loss o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made in the order of the assessment was beyond the scope of section 153A of the Act was dismissed by the CIT(A). The Ld. AR relied upon the decision of the Hon ble Delhi High Court in case of CIT vs. Kabul Chawla (2016) 380 ITR 573 wherein the Hon ble High Court held that in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The Ld. AR further submitted that since none of the additions made by the Assessing Officer was based on any incriminating material found as a result of search, as, such, the additions made is outside the scope of section 153A of the Act and, as such, it is prayed that the appeal of the revenue be dismissed and cross objections filed by the assessee be allowed. The Ld. AR further submitted that the CIT(A) after calling the remand report of the Assessing Officer admitted the additional evidences and after considering the same deleted the additions and there was no material brought by the revenue to infer that the findings of the CIT(A) are perverse. 7. We have heard both the parties and perused the material available on records. The CIT(A) held as under:- 16. I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant under Rule 46A, the facts are now apparent on record which establish the identity and creditworthiness of the creditors and prove the genuineness of the transactions. Therefore, the addition made by the Assessing Officer u/s 68 in respect of share capital and share premium received by the appellant cannot be sustained as the appellant has discharged its onus of proving the identity of the subscribers, creditworthiness of the subscribers and genuineness of the transactions by filing of their confirmations, copies of share application forms, copies of share certificates issued, copies of income tax returns, copies of bank statements etc. The case laws relied upon by the appellant also support its case. There was no material brought on record by the Assessing Officer to support his addition or any material evidence contrary to that of the appellant. Accordingly, considering all the facts and circumstances of the case, I hold that the amount of ₹ 3,08,00,000/- raised by the appellant during the year under consideration, as share capital and share premium stands explained and, therefore, the addition of this amount made by the Assessing Officer u/s 68 is deleted. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 power to assess and reassess the total income of the aforementioned 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 AYs in which both the disclosed and the undisclosed icnoem would be brought to tax iv. Although Section 153A 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 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 153A is relatable to abated procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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