2022 (3) TMI 1341 - AT - Income Tax

Assessment u/s 153A - Addition u/s 68 - HELD THAT - Admittedly, in the instant case no assessment was pending as on the date of search and the addition under consideration is not emanating from any incriminating material seized during the course of search and seizure operation as it clearly reflects from the assessment order, hence, the addition under challenge in any sense is un-sustainable and cannot stand in the eyes of lawon legal aspect as well as per judgment of the Jurisdictional High Court in the case of CIT Vs. Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT wherein it was held that that if on the date of search, the assessment proceedings already stood completed and no incriminating material unearthed during the search, then no addition can be made to the income already assessed.‟ The said dictum of the Hon'ble High Court was confirmed by the Hon'ble Apex Court in the case of Pr. Joint CIT vs. Meeta Gutgutia 2018 (7) TMI 569 - SC ORDER - Decided in favour of assessee.

Issues:
1. Addition made under section 68 of the Income Tax Act, 1961 based on share capital and share premium.
2. Interpretation of proviso 1 of section 68 regarding the onus of explaining the source of source for listed public companies.
3. Validity of assessment proceedings under section 153A in the absence of incriminating material.
4. Deletion of addition by the Commissioner and subsequent appeals by the Revenue Department and the Assessee.

Issue 1: Addition under section 68:
The case involved the addition of ?2,04,90,000 to the income of the Assessee under section 68 of the Income Tax Act, 1961. The Assessing Officer added this amount due to the issuance of equity shares by the Assessee to certain companies during the relevant period. However, the Commissioner, while acknowledging the issuance of shares, deleted the addition by invoking section 68 and proviso 1, which excludes listed public companies from the onus of explaining the source of source. The Commissioner found that the addition was not sustainable as it did not arise from incriminating material found during a search and seizure operation.

Issue 2: Interpretation of proviso 1 of section 68:
The Revenue Department contended that the Commissioner erred in interpreting proviso 1 of section 68, arguing that the exemption for listed public companies applies only to those seeking share capital from the public at large. However, the Assessee argued that the addition made by the Assessing Officer was not based on incriminating material and was thus unsustainable. The Commissioner upheld the deletion of the addition, citing precedents and legal principles.

Issue 3: Validity of assessment proceedings under section 153A:
The Assessee challenged the validity of the assessment proceedings under section 153A, claiming that they were initiated without any incriminating material found during the search. The Commissioner dismissed the cross-objection, noting that the addition was already deleted and that the proceedings were unsustainable due to the lack of incriminating material.

Issue 4: Deletion of addition and subsequent appeals:
The Revenue Department appealed the deletion of the addition, arguing that the Commissioner's decision was contradictory and legally flawed. However, the Commissioner's decision was based on the lack of incriminating material and the application of legal principles regarding section 68. The Assessee's cross-objection was dismissed as the addition had already been deleted, rendering the objection infructuous.

In conclusion, the Appellate Tribunal upheld the Commissioner's decision to delete the addition made under section 68, emphasizing the importance of incriminating material and legal principles in such cases. The appeals by both the Revenue Department and the Assessee were dismissed, affirming the Commissioner's order.

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