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2017 (12) TMI 300 - AT - Income TaxAssessment under section 153A - Held that - Assessing Officer was not correct in law in making the addition in the assessment made under section 153A read with section 143(3) when no incriminating material was found during the course of the search in respect of the addition made by him. We note that the search happened on 11th February, 2010 i.e. A.Y 2010-11 and it is not the case of AO that assessments under question were pending before the AO on the date of search. So, as per the decision of the Hon ble Delhi High Court in the case of Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT wherein it was held that no addition can be made without incriminating material seized during search, which is not the fact in the present case before us. - Decided in favour of assessee.
Issues Involved:
1. Jurisdiction, legality, and validity of actions taken under Section 132(1) of the Income Tax Act. 2. Seizure and recovery of money from the appellant's bank account. 3. Validity of the assessment order under Section 143(3)/153A of the Income Tax Act. 4. Addition of ?1,20,000 under Section 68 of the Income Tax Act on account of share application money. Detailed Analysis: 1. Jurisdiction, Legality, and Validity of Actions Taken Under Section 132(1): The appellant challenged the jurisdiction and legality of the action taken under Section 132(1) of the Income Tax Act, arguing that no search warrant was issued or served on the appellant company. The appellant also contended that no prohibitory order under Section 132(3) was issued concerning the bank account, and the seizure of the bank account was done without the appellant's presence or signature. However, these grounds were not pressed by the appellant during the hearing. 2. Seizure and Recovery of Money: The appellant contested the seizure of money from its Axis Bank account, arguing that the money was legally accounted for and recorded in the books. The appellant provided documentary evidence, including bank statements and balance sheets, to support its claim. Despite this, the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] upheld the seizure based on the findings from a survey and search operation conducted on Shri Santosh Kumar Shah, who was allegedly involved in providing accommodation entries. 3. Validity of the Assessment Order Under Section 143(3)/153A: The appellant argued that the assessment order under Section 143(3)/153A was invalid as it was based on an invalid search. The AO had made additions based on statements from Shri Santosh Kumar Shah and his relative, who were found to be involved in providing accommodation entries. The appellant contended that it was not given an opportunity to cross-examine these statements and that no incriminating material was found during the search related to the share capital and share premium. 4. Addition of ?1,20,000 Under Section 68: The main grievance of the appellant was the addition of ?1,20,000 under Section 68, treating the share application money as bogus. The AO made this addition based on the statements of Shri Santosh Kumar Shah and his relative, who admitted to providing accommodation entries. The appellant provided comprehensive details, including share applications, bank statements, PAN details, and IT returns of the share applicants, to prove the genuineness of the transactions. The CIT(A) upheld the AO's addition, citing the statements made during the search and post-search enquiries. However, the Income Tax Appellate Tribunal (ITAT) noted that the AO did not allow the appellant to cross-examine the statements of Shri Santosh Kumar Shah. The ITAT also observed that the appellant had submitted all necessary documents to prove the identity, genuineness, and creditworthiness of the share applicants. Furthermore, the ITAT referred to its earlier judgment in the appellant's case for Assessment Years 2005-06 and 2006-07, where it was held that no addition could be made under Section 153A in the absence of incriminating material found during the search. Conclusion: The ITAT concluded that the AO was not correct in making the addition under Section 153A read with Section 143(3) as no incriminating material was found during the search. The ITAT deleted the addition of ?1,20,000 for both Assessment Years 2004-05 and 2007-08, allowing the appeals filed by the appellant. Order pronounced in the open court on 29/11/2017.
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