9911796707
TMI Blog2017 (3) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... here is, understatement of sale consideration to the extent of difference of market price and sale price. If the AO alleges any on-money transaction in respect of this sale of shares, then the onus lies on the AO to prove that the assessee had actually earned any undisclosed higher price on sale of these shares than the rate as disclosed by assessee. The AO's conclusion of manipulation of share price and thereby earning, undisclosed receipts on sate of shares is highly presumptuous - Decided against revenue X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds raised by the revenue in the present appeal. 4. Per contra, Ld. DR did not make any distinction on law or on facts of the above cases and the case of the assessee. 5. We have gone through the orders passed by the lower authorities as well as by the Tribunal in aforementioned cases. The brief background is that search was carried out on 6.10.10 in the case of M/s. ARSS Infrastructure Pvt. Ltd. and its group concerns. The assessee was also covered under the search and eventually assessment order was passed u/s 153A. 6. In ground No.1 the revenue is aggrieved with the action of the Ld. CIT(A) in deleting the addition made by the Assessing Officer on account of loans received from Shri Suresh Gaggar of ₹ 10 lacs, and Garnet International Ltd. of ₹ 6,25000/-. Ld. CIT(A) deleted the addition by observing under:- "I have carefully examined the facts of the case, the observations by the A.O. in the assessment order, the grounds of appeal, the statement of facts, the written submissions and documents submitted during the appellate proceedings filed by the appellant during the hearing proceedings. The above facts clearly indicate that, the AO has failed to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Ld. Assessing Officer made addition on the basis of perusal of schedule 4 to the balance-sheet. There is no reference to any incriminating material having been found during the course of search. It is noted that search has been made on in this case on 6.10.10 whereas time limit for issue notice u/s 143(2) had expired on 30.9.2009. Thus, the assessment had attained finality when the search was carried out. Under these circumstances Ld. Counsel has submitted that no addition can be made in assessment u/s 153A in absence of any incriminating material having been found during the course of search in view of the following decisions:- "All Cargo Global Logistics [374 ITR 645 (Bom)] CIT v. Gurinder Singh Bawa [386 ITR 483 (Bom)] CIT v. Kabul Chawla [380 ITR 573 (Del)] Dy. CIT v. Shri Ramakant Gaggar in ITA Nos 1287 to 1291/Mum/2015 for A.Y.s 2006-07 to 2009-10 dated 21.12.2016 (Pg 69- 80 of P.B.) DCIT v. Smt. Indra Gaggar in ITA Nos 808, 1295, 1294/Mum/2015 for A.Y.'s 2006-07 to 2008-09 dated 30.11.2016 (Pg 102 - 113 of P.B.) Narpat Mehta v. ACIT CC 4(1), Mumbai in ITA Nos. 2151 and 2153/Mum/2015 for A.Ys. 2005-06 and 2008-09 dated 30.09.2016". 8. Further our attention was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had discharged onus u/s 68 and substantiated the loans received by Shri Suresh Gaggar and M/s. Garnet International Ltd. Nothing wrong has been pointed out in the well reasoned findings of Ld. CIT(A). Thus, viewed from any angle, no interference is called for in the order of Ld. CIT(A), and thus same is upheld. Ground No.1 is dismissed. Ground No.2 10. In this ground the revenue is aggrieved by the action of Ld. CIT(A) in deleting addition on account of unexplained receipt on sale of shares of ARSS Infrastructure Private ltd. amounting of ₹ 2,44,54,330/-. The brief facts in this regard are that during the course of assessment proceedings it was noted by the AO that assessee had sold shares of ARSS Infrastructure Private Ltd. The AO noted that sale price of shares has been suppressed as compared to its market value and accordingly addition was made of the differential amount. During the course of hearing, it was brought to our notice that identical issue has been decided by the Tribunal in other cases of the same search group, the names of which have been mentioned above and therefore, the issue is squarely covered with the aforesaid orders of the Tribunal. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sale consideration to the extent of difference of market price and sale price. If the AO alleges any on-money transaction in respect of this sale of shares, then the onus lies on the AO to prove that the assessee had actually earned any undisclosed higher price on sale of these shares than the rate of Rs-13-33 as disclosed by assessee. The AO's conclusion of manipulation of share price and thereby earning, undisclosed receipts on sate of shares is highly presumptuous. The AO's reference to observations of Hon'ble Supreme Court in McDowell's case and some other cases has no relevance to the issue at hand. The decision of Hon'ble Supreme Court in McDwell's case is not universally applicable, as has been held in the following cases Union of India Vs. Azadi Bachao Andolan 263 ITR 706(SC) CWT Vs Arvind Narottarn 173 ITR 479 (SC). Banyan & Berry Vs. CIT 222 ITR 831 (Guj). Mathuram Agarwal Vs. State of Madhya pradesh 8 SCC 667. We also found that the documents filed by the assessee along with case laws were forwarded by CIT(A) for remand report to the AO vide letter dated 16-12-2013 and vide letter dated 31-12-2013, the AO sent his remand report. Copy of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the consideration received by the assessee is more than what is shown in the return of income. Since the AO has failed to bring any cogent material on record to substitute the actual sale consideration received by the assessee, there is no justification for the addition made by disregarding the actual sale consideration received by the assessee. From the record we found that assessee had shown the shares as investment, therefore, profit or loss arising on their sale are liable to be taxed under the head of capital gain rather than business income, therefore, the contention of Id. DR that since the addition has been made u1s68, the question of taking actual sate consideration does not arise. In view of the above discussion, we do not find any infirmity in the order of CIT(A). We had also carefully gone through the seized documents to which our attention was invited by Id. DR and found that seized papers are draft MOU and agreement in the name of Devan Mehta, which shows that he was indulged in the business of providing services for listing of shares on various stock exchanges, which is not an illegal, no cogent material was there to indicate that Devan Mehta was engage ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
