9911796707
TMI Blog2022 (5) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... 06. Grounds of Assessee's appeal: ITA No.637/Del/2016 Assessment Year: 2005-06 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction to assess the appellant u/s. 153A of the Act. 2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned Assessment Order u/s. 143(3)/153A without issuing and serving the jurisdictional notice u/s. 143(2) of the Act. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the addition to the extent of Rs.40,00,000 out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tworthiness of these creditors nor the genuineness of transactions were established as submitted by the AO in Assessment Order and Remand Report. 2. That on the facts and circumstances of the case, the CIT(A) erred in holding that the onus of the assessee is discharged without appreciating the judgment of the jurisdictional High Court given in case of CIT v. Nova Promoters (2012) 342 ITR 169 (Delhi) wherein the Hon'ble Court has held that by merely filing confirmations, ITRs etc. the identity, creditworthiness and genuineness of transaction are not established and the evidences adduced by the assessee has to be examined not superficially but in depth and having regard to the test of human probabilities and normal course of human conduct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,220/- was filed on 20/12/2012. During the course of assessment proceedings, it was found by the A.O that, the assessee has failed to establish the genuineness of transaction of share application money/share capital and also fail to providing creditworthiness of the alleged subscribers to the share capital. The share capital of Rs. 2,89,50,000/- received by the assessee Company has been treated as income of the assessee on account of unexplained cash credit u/s 68 of the Act, accordingly, passed assessment order on 28/03/2013. As against the assessment order dated 28/03/2013, the assessee has preferred an appeal before the CIT(A). The Ld.CIT(A) has sustained the addition only to the extent of Rs. 40,00,000/- u/s 68 of the Act and the balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned addition. The said fact has been also accepted by Ld.CIT(A) at Para No. 8.9 of the order of CIT(A) read as under: "8.9 Perusal of the Assessment Order shows that a Search & Seizure operation u/s 132(1) of the Income Tax Act, 1961 had been carried out on 11/03/11 in the Paramount Group (of which the Assessee Company is a part) along with Gulshan Group and Ajnara Group. Once a Search had been conducted, it was to be expected that some incriminating material could have been found or at least some indication towards the evasion could have been found. However, perusal of Para 4 on Page 1 of the Assessment Order dated 28.03.13 shows that it was only during the assessment proceedings, the mater relating to receipt of Share Capital was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 income would be brought to tax". iv. Although Section 153 A 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment Year 2006-07 vide order dated 09/12/2021. In the light of the above decision of the Jurisdictional High Court and the decision of the Tribunal which are binding precedent, we allow the appeal filed by the assessee and delete the addition made by the A.O which was sustained by CIT(A). Accordingly, we allow the Assesssee's Grounds of appeal.
11. In view of the allowing the Grounds of appeal of the assessee, the Grounds of Appeal of the Revenue has become infructuous.
12. In the result, Appeal of the Assessee in ITA No. 637/Del/2016 is allowed and appeal of the Revenue in ITA No. 1391/Del/2016 is dismissed for having become infructuous.
Order pronounced in the open court on 19th May, 2022. X X X X Extracts X X X X X X X X Extracts X X X X
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