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2012 (4) TMI 324 - AT - Income TaxValidity of the order passed u/s 153A r.w.s 143(2) - Search and seizure - held that - the warrant is issued in the name of the assessee and the address of the premises searched is also the official address of the assessee viz. E-127, Industrial Area, Bhiwadi. The panchnama is prepared for the search operation conducted at this premises and the name of the assessee very much appears in the panchnama. In view of these facts, it is clear that a valid search and seizure operation has been conducted u/s 132 and the order u/s 153A passed by the A.O is as per law. - it is not disputed by the assessee company that search warrant was not issued against the assessee company. A single search warrant can be issued in the name of number of concerns. Once search warrant has been issued then the AO is required to pass the assessment order u/s 153A read with Section 143(3) of the Act. Tax evasion - Fluctuation of share price - Indo-Mauritius DTAA - held that - The shareholders having the shares as on 17-07-2006 have offered the gain arising from sale of shares by treating the sale consideration at Rs. 318/- per share. Hence, it is not the case that there is a tax evasion. The entities which purchased the shares before 17-07-2006 and has offered the profit. It is not the case of the revenue that such entities have given back profit to the persons from whom such shares were purchased before 17-07-2006. Hence, it is not the case of tax evasion.
Issues Involved:
1. Validity of the order passed under Section 153A read with Section 143(3) of the Income Tax Act. 2. Recognition of the sale of equity shares and the confirmation of additions made by the Assessing Officer (AO). 3. Determination of the transfer of shares to the correct party and the working out of Short Term Capital Gain (STCG) on the sale of land. 4. Charging of interest under Section 234B(3) of the Income Tax Act. Issue-wise Detailed Analysis: 1. Validity of the order passed under Section 153A read with Section 143(3) of the Income Tax Act: The assessee contended that no physical search was conducted at its premises and no incriminating documents were seized, thereby challenging the validity of the proceedings initiated under Section 153A. The Tribunal dismissed this ground, stating that a search warrant was indeed issued against the assessee and that a single search warrant can be issued in the name of multiple entities. Once a search warrant is issued, the AO is required to pass the assessment order under Section 153A read with Section 143(3). Hence, the ground challenging the validity of the order was dismissed. 2. Recognition of the sale of equity shares and the confirmation of additions made by the AO: The assessee argued that the sale of 35,000 equity shares of M/s. Blossom Automotives Pvt. Ltd. was genuine and duly recorded in the books of accounts. The AO, however, treated the sale of 25,000 shares as a sham transaction aimed at avoiding STCG, thereby making an addition of Rs. 54,43,750/-. The Tribunal found that the shares were sold to M/s. Yuthika Commercial Pvt. Ltd. before the MOU dated 17-07-2006, and the consideration was received through banking channels. It was held that there was no evidence to suggest that the assessee received any consideration over and above what was recorded. The Tribunal concluded that the AO was not justified in making the addition, and thus, the ground was decided in favor of the assessee. 3. Determination of the transfer of shares to the correct party and the working out of STCG on the sale of land: The AO contended that the shares were ultimately transferred to M/s. Techpro System Ltd. at Rs. 318 per share, treating the transaction as a sale of land and computing the STCG accordingly. The Tribunal observed that the sale was of shares and not of the asset (land) itself. The sale consideration was correctly recorded, and there was no evidence of any additional consideration received. The Tribunal held that the transfer of shares was to M/s. Yuthika Commercial Pvt. Ltd. and not M/s. Techpro System Ltd., thus deciding the ground in favor of the assessee. 4. Charging of interest under Section 234B(3) of the Income Tax Act: The assessee argued against the charging of interest under Section 234B(3). The Tribunal noted that the charging of interest is mandatory and directed that the assessee be given consequential relief based on the final outcome of the appeal. Separate Judgments: The Tribunal also considered similar appeals for M/s. Singhal Securities Pvt. Ltd. and M/s. SNR Rubbers Pvt. Ltd., where similar issues were raised. The Tribunal dismissed the ground challenging the validity of the order under Section 153A for both these cases as well. It allowed the grounds related to the recognition of the sale of shares and the determination of the transfer to the correct party, thereby deleting the additions made by the AO. The ground related to the charging of interest under Section 234B(3) was held to be consequential in nature. Conclusion: The appeals of the assessee were partly allowed, with the Tribunal ruling in favor of the assessee on the grounds related to the recognition of the sale of shares and the determination of the transfer to the correct party, while dismissing the challenge to the validity of the order under Section 153A. The charging of interest under Section 234B(3) was held to be mandatory, with consequential relief to be provided.
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