2021 (7) TMI 380 - AT - Income Tax

Assessment u/s 153A - Addition u/s 68 on unexplained share capital and premium - search was conducted on another assessee - HELD THAT - The case before us is there is no material found pertaining to the assessee in search on third party. As no incriminating documents are found during the course of search - we do not agree with the contentions of the revenue that share certificates in the name of Response Overseas Private Limited and Raj Nand Hela along with the transfer forms pertains to the assessee company. The Hon ble Supreme Court in CIT vs Sinhgad Technical Education Society 2017 (8) TMI 1298 - SUPREME COURT clearly held that in case of the person other than searched person, concluded assessment can be tinkered with only if incriminating material is found in those assessment years. Therefore, in the present case it is apparent that no incriminating material found during the course of search and therefore, the concluded assessment year i.e. 2009-10 cannot be tinkered with. As already held that share certificates as well as the share transfer forms found during the course of search on AKruti Hotels Ltd does not pertain to the assessee and therefore same can also not be an incriminating material, which has a bearing on the income of the assessee. Thus, there cannot be any addition in the hands of assessee on this count. In view of this, the ground raised by the assessee by invoking Rule 27 of ITAT Rules succeeds. In the result, on this issue the appeal of the department fails. The issue on the merits of the case with respect to the addition u/s 68 of the Act is left open.

Summary

Issues Involved:
1. Jurisdictional validity of the order under section 153A of the Income Tax Act.
2. Deletion of addition of ?5,00,00,000/- made under section 68 of the Income Tax Act on account of unexplained share capital and premium.
3. Whether the documents found during the search were incriminating in nature.

Detailed Analysis:

1. Jurisdictional Validity of the Order under Section 153A:
The primary issue raised by the assessee was the jurisdictional validity of the order under section 153A of the Income Tax Act. The assessee argued that the order was invalid as the satisfaction note under section 153C was not recorded in the file of the person searched but in the file of the assessee. The CIT(A) rejected this argument, relying on the Delhi High Court's decision in the case of Anil Bhatia, which upheld the action under section 153A. The tribunal noted that the search took place in the case of Akruti Hotels Pvt Ltd, and the documents found pertained to the shareholders of the assessee company. The tribunal concluded that the jurisdiction assumed by the AO under section 153A was not valid as the documents found were not incriminating and did not pertain to the assessee.

2. Deletion of Addition of ?5,00,00,000/- under Section 68:
The AO made an addition of ?5,00,00,000/- under section 68 of the Income Tax Act, citing unexplained share capital and premium. The CIT(A) deleted this addition, holding that the assessee had discharged its initial onus by submitting evidence such as shareholder application forms, income tax returns, share certificates, bank statements, and other documents. The CIT(A) observed that many shareholders had responded to notices under section 133(6) and that the declaration of small profits by shareholders did not imply that the investment was not genuine. The tribunal upheld the CIT(A)'s decision, noting that the assessee had provided sufficient evidence to prove the identity, creditworthiness, and genuineness of the shareholders.

3. Incriminating Nature of Documents Found During Search:
The tribunal examined whether the documents found during the search were incriminating in nature. The documents included share certificates and share transfer forms in the names of certain shareholders. The tribunal concluded that these documents did not pertain to the assessee but to the shareholders, and thus, could not be considered incriminating. The tribunal relied on the Supreme Court's decision in CIT vs. Sinhgad Technical Education Society, which held that concluded assessments could only be reopened if incriminating material was found during the search. Since no incriminating material was found, the tribunal held that the concluded assessment for AY 2009-10 could not be reopened.

Conclusion:
The tribunal dismissed the appeal filed by the AO, upholding the CIT(A)'s decision to delete the addition of ?5,00,00,000/- under section 68 and ruling that the jurisdiction assumed by the AO under section 153A was invalid due to the absence of incriminating material. The tribunal emphasized that share certificates and transfer forms found during the search did not pertain to the assessee and could not be used to justify the addition.