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2022 (6) TMI 1402 - AT - Income TaxAssessment u/s 153A - Bogus exempt LTCG on sale of shares - incriminating material was found or not? - contention of the assessee is this that during the course of search no incriminating material was found from the premises of the appellant - CIT-A quashed proceedings initiated against assessee - HELD THAT - We find that the assessee s main contention of not having any incriminating material in the possession of the Ld. AO found during the course of search of the premises of the assessee which ought to have been the main basis of reopening of an unabated assessment and on the contrary addition has been made without due process of law has been taken into consideration in its proper perspective. The ratio laid down in the case of Saumya construction 2016 (7) TMI 911 - GUJARAT HIGH COURT and CIT vs. Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT has been applied rightly by the CIT(A) in the case in hand keeping in view of the particular fact that even the Ld. AO admitted the fact of not having any incriminating material found during the search of the assessee s premises. Quashing of the proceeding by the Ld. CIT(A) initiated u/s 153A against the assessee applying the ratio laid down by the judicial forums as indicated hereinabove is just and proper so as to warrant interference.Decided against revenue.
Issues Involved:
1. Addition of Rs. 94,33,504/- on bogus exempt long-term capital gains on sale of shares. 2. Deletion of commission charge of Rs. 2,54,130/- for obtaining accommodation entries of Long Term Capital Gain. 3. Legality of reassessment proceedings under Section 153A in the absence of incriminating material. Detailed Analysis: Issue 1: Addition of Rs. 94,33,504/- on Bogus Exempt Long-Term Capital Gains on Sale of Shares The Revenue challenged the deletion of the addition of Rs. 94,33,504/- made by the AO under Section 68 of the Income Tax Act, 1961, as cash credit. The AO alleged that the long-term capital gains (LTCG) on the sale of shares of Shree Ganesh Spinners Ltd. (SGSL) were bogus, based on documents seized from third parties during a search operation. The AO concluded that the transactions were non-genuine, controlled by Shirish Chandrakant Shah (SCS), and constituted accommodation entries. However, the CIT(A) deleted the additions, and the Tribunal upheld this deletion, emphasizing the absence of incriminating material found during the search at the assessee's premises. The Tribunal referenced the judgments in PCIT vs. Saumya Construction Pvt. Ltd. and CIT vs. Kabul Chawla, which established that additions in completed assessments could only be based on incriminating material found during the search. Issue 2: Deletion of Commission Charge of Rs. 2,54,130/- for Obtaining Accommodation Entries of Long Term Capital Gain The AO added Rs. 2,54,130/- under Section 69C of the Act as commission charges for arranging LTCG accommodation entries. This addition was also deleted by the CIT(A) and upheld by the Tribunal. The Tribunal reiterated that without incriminating material found during the search at the assessee's premises, such additions could not be sustained. The Tribunal's decision was rooted in the same legal principles applied in Issue 1, emphasizing the requirement of incriminating material for additions in reassessment proceedings under Section 153A. Issue 3: Legality of Reassessment Proceedings Under Section 153A in the Absence of Incriminating Material The Tribunal extensively discussed the legal framework governing reassessment proceedings under Section 153A. It referred to the Delhi High Court's decision in CIT vs. Kabul Chawla and the Gujarat High Court's decision in Pr.CIT vs. Saumya Construction Pvt. Ltd., which clarified that in the absence of incriminating material found during the search, completed assessments could not be disturbed. The Tribunal noted that the AO had admitted the absence of incriminating material in the assessment order. Consequently, the Tribunal concluded that the reassessment proceedings initiated under Section 153A were invalid, and the additions made were unsustainable. Conclusion: The Tribunal dismissed the appeals filed by the Revenue, upholding the CIT(A)'s deletion of the additions. The Tribunal's decision was heavily influenced by the absence of incriminating material found during the search at the assessee's premises and the established legal principles governing reassessment proceedings under Section 153A. The Tribunal's reliance on precedents from higher judicial authorities reinforced the requirement for incriminating material to justify additions in completed assessments.
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