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2022 (9) TMI 1176 - AT - Income TaxAssessment u/s 153A - addition of LTCG on sale of shares as bogus u/s 68 - incriminating material or documents or information found during the course of search or not? - HELD THAT - We find that on the date of search i.e. 31.10.2010, the assessment for the AY 2006-07 had already attained finality and in terms of section proviso to section 153A, it was unabated assessment. Admittedly, the addition on account of LTCG on sale of shares is not based any incriminating material or documents or information found during the course of search, albeit it was on the basis of computation of income and the information already given in the income tax return which already stood assessed. It is now well settled law where the assessment has attained finality and stands concluded at the time of search and are not abated, then no addition can be made in absence of any incriminating material or documents found during the course of search. Accordingly, the addition made by the AO u/s 68 is unsustainable on the ground that it is beyond the scope of assessment u/s 153A. Accordingly, the ground of the appeal raised by the revenue is dismissed. - Decided in favour of assessee.
Issues Involved:
1. Deletion of the addition of Rs. 57,86,609/- made by the AO under Section 68 in respect of LTCGs on the sale of shares as bogus. 2. Deletion of the addition of Rs. 2,89,330/- made by the AO on account of unaccounted expenditure towards commission paid for obtaining bogus purchases. Detailed Analysis: Issue 1: Deletion of Addition of Rs. 57,86,609/- under Section 68 Facts: - A search and seizure operation under Section 132 was conducted on 13.10.2010. - The assessee had filed a return for AY 2006-07, showing total income of Rs. 52,86,860/-, which was processed under Section 143(1) on 14.07.2007. - The assessment for AY 2006-07 was considered "unabated" as it stood concluded on the date of the search. - A notice under Section 153A was issued, and the assessee declared total income at Rs. 88,86,856/- including additional income of Rs. 36 lakhs. Assessment Officer's (AO) Findings: - The AO noted that the assessee claimed LTCG of Rs. 57,86,609/- on shares of "Asahi Infrastructure Ltd." and "Om Metal Ltd." as exempt. - The AO found the shares were purchased from Mahasagar Securities Pvt. Ltd., which was known for providing accommodation entries. - The AO disallowed the LTCG exemption, treating the transactions as bogus based on the modus operandi and lack of substantial evidence. CIT(A)'s Observations: - The CIT(A) found the AO's reasons irrelevant or immaterial, noting discrepancies in the AO's understanding of the facts. - The CIT(A) highlighted that the shares were dematerialized and sold through proper channels, and the transactions were supported by bills and demat statements. - The CIT(A) emphasized that the AO did not provide the assessee with the opportunity to cross-examine Mahasagar Securities Pvt. Ltd. or establish the documents as sham/bogus. Tribunal's Findings: - The Tribunal noted that the assessment for AY 2006-07 was concluded and no incriminating material was found during the search. - It was established law that no addition could be made under Section 153A in the absence of incriminating material if the assessment had attained finality. - The Tribunal cited various judgments supporting this view, including CIT vs. Continental Warehousing Corporation and CIT vs. SKS Ispat & Power Ltd. - The Tribunal concluded that the addition of Rs. 57,86,609/- under Section 68 was unsustainable and dismissed the revenue's ground of appeal. Issue 2: Deletion of Addition of Rs. 2,89,330/- on Account of Unaccounted Expenditure - Since the Tribunal had already deleted the major addition on legal grounds, the issue of Rs. 2,89,330/- became academic and was not separately addressed in detail. Conclusion: - The appeal filed by the revenue was dismissed, and the order pronounced in the open court on 18.05.2022. The Tribunal upheld the CIT(A)'s decision to delete the additions made by the AO, emphasizing the lack of incriminating material and the legal principles governing assessments under Section 153A.
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