TMI Blog2019 (6) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the proceeding U/s 153A - Appeal of the Revenue is dismissed. - ITA No. 136/JP/2017 - - - Dated:- 17-6-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Rajeev Sogani (CA) And Shri Rohan Sogani (CA) For the Revenue : Shri B.K. Gupta (JCIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the Revenue is directed against the order dated 23.12.2016 of CIT(A), Jaipur for the assessment year 2009-10. The Revenue has raised the following ground:- 1. Whether on the facts and in the circumstances of the case the CIT(A) was justified in deleting the addition of ₹ 65,00,000/- made by A.O. on account of unexplained cash credit U/s 68 of the Income Tax Act, 1961. 2. Whether on the facts and in the circumstances of the case the CIT(A) was right in allowing the appeal of the assessee holding that in absence of any incriminating material, the completed assessment cannot be interfered with by the AO while making assessment U/s 153A only on the basis of some incriminating material unearthed during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not based on any incriminating material or documents found or seized during the course of search and seizure action in case of the assessee. The ld. CIT(A) deleted the addition made by the AO on this legal issue and aggrieved by the impugned order of the ld. CIT(A) the Revenue has filed the present appeal. 3. Before us, the ld. DR has submitted that as per the provisions of Section 132 r.w.s 153A of the Act the AO is bound to issue the notice for initiation of proceedings U/s 153A of the Act to assess or reassess to the total income of 6 assessment years immediately preceding assessment year, relevant to the previous year in which such search is conducted or requisition is made. The ld. DR has thus contended that the proceeding U/s 153A are mandatory in nature and there is no escapement of the assessment or reassessment proceedings pursuant to the search and seizure action U/s 132 of the Act. There is no prejudice if the AO made the addition U/s 68 of the Act in the proceeding U/s 153A based on the information received from Investigation Wing, Mumbai disclosing the fact that the share application money shown by the assessee is nothing but accommodation entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1753/Del/2014. He has also relied upon the decision dated 16.05.2019 of this tribunal in case of Smt. Aruna Sankhla vs. DCIT in ITA No. 483/JP/2016. Thus, the ld. AR has contended that the ld. CIT(A) has deleted the addition by following various decisions on this point including the decision of Hon ble jurisdictional High Court in case of Jai Steel India vs. ACIT 259 CTR 281. 5. We have considered the rival submissions as well as the relevant material on record. There is no quarrel on the point that in view of the binding precedents of Hon ble High Courts the AO in the proceeding U/s 153A of the Act in respect of the assessment year which is not pending as on the date of search cannot make addition in the absence of any incriminating material found during the course of search and seizure U/s 153A of the Act. Section 153A gives the power to the taxing authority to reopen 6 assessment years relevant to the previous year in which the search took place. Though the assessment or reassessment of these six years is mandatory in nature pursuant to the search and seizure action however, in case of completed assessment as on the date of search no addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, based on the information with the investigation department, statement recorded u/s 132(4) of Shri Praveen Jain and various incriminating documentary evidence found from the search and seizure carried out by investigation wing, Mumbai on the said group on 01.10.2013, and the existence of nexus as briefed above cannot be considered as a co-incidence specially when Shri Praveen Jain has categorically admitted that his group was indulged in providing accommodation entries of bogus unsecured loans and advances through BENAMI CONCERNS operated and managed by him and Others. Thus, under such facts and circumstances M/s Ansh Marchandise Pvt. Ltd. (New Planet Trading Co P. Ltd.) is nothing but a Benami Concern of Shri Praveen Jain Group. From the above case laws and discussion, it is crystal clear that- (a) The primary onus is on the aasessee to establish the genuineness of the transaction. (b) If the investigation done by the department leads to doubt regarding the genuineness of the transactions it is incumbent on the assessee to produce the parties along with necessary documents to establish the genuineness of the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee then the Assessing Officer legally cannot make the addition based on the information and evidence received from the Investigation Wing, Mumbai and consequently ought to have completed the reassessment U/s 153A of the Act without making any addition. But at the same time he could initiate the proceeding U/s 147/148 of the Act to reassess the income of the assessee on the basis of the information and evidence received from the Investigation Wing, Mumbai. Accordingly, in view of the various decisions on this point as relied upon by the ld. AR of the assessee, we do not find any error or illegality in the impugned order of the ld. CIT(A) in deleting the addition made by the AO while passing the order U/s 153A of the Act. It is always open to the AO to initiate the proceeding U/s 147/148 of the Act if the time limit for initiation of the said proceedings was still available as on the date of passing the order U/s 153A of the Act. We find that even on the date of assessment order passed U/s 153A of the Act on 31.03.2015 the time limit for issuing the notice U/s 148 of the Act was still available with the AO. Therefore, even if the AO had no jurisdiction to make the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
