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2018 (12) TMI 523 - AT - Income TaxAssessment u/s u/s.153A - addition u/s 68 - unabated assessment - Held that - The assessment is unabated as the return of income u/s.139 of the Act filed on 30.09.2009 whereas the time limit for issue of notice u/s.143(2) of the Act is on 30.09.2010 and the date of search u/s.132 of the Act dated 06.08.2014 and at the time of search the assessment was completed and no incriminating material was found as per record. Therefore we having considered the facts of the case and also the observations of both the lower authorities and the decision of the coordinate bench of the Tribunal referred above are of the substantive opinion that the assessment is unabated and the Tribunal is bound by the judicial precedence and hence applying the ratio of decision to the present case we allow the cross objections filed by the assessee.
Issues Involved:
1. Whether the addition of ?75,00,000 as unexplained share capital and share premium under Section 68 of the Income Tax Act was justified. 2. Whether the CIT(A) erred in not accepting the assessee's claim that no incriminating material was found during the search, making the addition for the unabated year unsustainable. Issue-wise Detailed Analysis: 1. Addition of ?75,00,000 as Unexplained Share Capital and Share Premium: The assessee, engaged in real estate and rental business, filed its original return of income on 25.09.2010, disclosing a total income of ?15,26,487. The case was selected for scrutiny, and the assessment was completed with a total income of ?15,98,810, including additions for maintenance charges and donations. A search operation under Section 132 was conducted on 06.08.2014. Subsequently, a notice under Section 153A was issued, and the assessee filed a return disclosing the same income as the original return. The AO completed the assessment, adding ?75,00,000 as unexplained share capital and share premium under Section 68. The CIT(A) allowed the assessee's appeal, directing the AO to delete the addition. The Revenue appealed against this order, while the assessee filed a cross objection, arguing that no incriminating material was found during the search, and the addition was not sustainable for the unabated year. 2. No Incriminating Material Found During Search: The assessee contended that no incriminating material was found during the search, and the addition made under Section 68 was not justified. The assessee's AR argued that the CIT(A) overlooked the jurisdictional ITAT's order and other judicial decisions supporting the assessee's case. The AR emphasized that the AO had already verified the share allotment details in the original assessment under Section 143(3). The DR, however, argued that the order was based on seized material and relied on the CIT(A)'s observations, which considered judicial decisions from the Kerala and Allahabad High Courts. The DR contended that the seized material identified in the paper book justified the addition. Tribunal's Findings: The Tribunal noted the assessee's argument that no incriminating material was found during the search. The Tribunal referred to the original assessment proceedings, where the AO had verified the share allotment details and found that all transactions were routed through banks. The Tribunal observed that the AO, in the proceedings under Section 153A, made the addition based on the same share allotment details already verified in the original assessment. The Tribunal emphasized that the CIT(A) should have accepted the decisions of higher judicial authorities, as highlighted by the Supreme Court in Asst. Collector of Central Excise Vs. Dunlop India Ltd. & Ors. The Tribunal referred to the coordinate bench's decision in Midas Capital Pvt. Ltd. Vs. ACIT, which held that in the absence of incriminating material, no addition could be made for unabated assessments under Section 153A. The Tribunal concluded that the assessment was unabated, and no incriminating material was found during the search. Therefore, the addition made under Section 68 was not justified. The Tribunal allowed the assessee's cross objections and dismissed the Revenue's appeals. Conclusion: The Tribunal held that the addition of ?75,00,000 as unexplained share capital and share premium under Section 68 was not justified, as no incriminating material was found during the search. The Tribunal emphasized the importance of following higher judicial authorities' decisions and allowed the assessee's cross objections while dismissing the Revenue's appeals.
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