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TMI Blog2017 (9) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... 477 OF 2017, 483 OF 2017, 566 OF 2017, 914 OF 2017, 1169 OF 2014, 1178 OF 2014,1194 OF 2017, 1169 OF 2014,1197 OF 2017,11 - - - Dated:- 11-9-2017 - S. C. DHARMADHIKARI PRAKASH D. NAIK, JJ. Mr. Abhay Ahuja for the Appellant in ITXA/1709/2014, ITXA/1780/2014 and ITXA/131/2015. Mr. Naresh Jain i/b. Agrud Partners for the Respondent in all the Appeals. Mr. Arvind Pinto for the Appellant in ITXA/1178/2014, ITXA/1169/2014, ITXA(L)/468/2017, ITXA(L)/472/2017 ITXA(L)/483/2017. P.C. : 1. The Revenue has filed these Appeals challenging the order of the Income Tax Appellate Tribunal. 2. We would take the facts from Income Tax Appeal No.1709 of 2014. 3. Though the name of the respondent assessee is distinct in each of these Appeals, it is agreed that the Revenue is proposing similar questions in all of them. These Appeals of the Revenue arise out of the order passed by the Tribunal and taking a view that the grounds raised are covered, in majority of the cases, by the earlier order of the Tribunal. 4. A reference is also made to the same in as much as a Special Bench of the Tribunal was constituted so as to deal with similar grounds as were raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that assessment u/s. 153A can be made only on the basis of incriminating material found in the search and no other issue can be taken following the Special Bench order in the case of All Cargo Global Logistics Ltd. , when the SB decision of Hon'ble ITAT, Mumbai has been disapproved by Hon'ble Karnataka High Court in the case of Canara Housing Development Co. Vs. DCIT (unreported)? 6.2 Whether on the facts and in the circumstances of thecase and in law, the Hon'ble ITAT was justified in deleting the addition made u/s.68 of the IT Act of unexplained gift received, which could not be proved to be genuine by the assessee, by not going into the merits of the case, but by holding that only income related to incriminating documents found during the search u/s. 132 of the IT Act can be considered in assessment u/s. 153A of the IT Act and it is beyond the scope of section 153A of the IT Act, 1961? 11. Mr. Ahuja would submit, inter alia, that the two Sections of the Income Tax Act, namely, Section 68 and Section 153A have not been interpreted in their correct perspective. 12. The argument of Mr. Ahuja is that the view taken by the Tribunal based on its Special Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 487 (Calcutta). 18. On the other hand, the argument of the respondent throughout is that the Special Bench decision of the Tribunal has now been upheld by this Court in Continental Warehousing Corporation and All Cargo Global Logistics (supra). The question proposed, namely, the first question is not a substantial question of law. 19. As far as the second question as well, the Tribunal has not committed any error because the addition made under Section 68 of the IT Act deserves to be deleted. 20. At the outset, and since heavy reliance is placed by the Revenue on the Supreme Court judgment in Rajesh Jhaveri Stock Brokers Private Limited (supra), it would be proper to note the facts in the same. 21. There, the Assistant Commissioner of Income Tax challenged the correctness of the decision rendered by a Division Bench of the Gujarat High Court. That Division Bench judgment allowed the Writ Petition/Special Civil Application of the assessee. 22. The respondent assessee, a private limited company, filed its return of income for the assessment year 2001- 2002 on October 30, 2001, declaring total loss of ₹ 2,70,85,105/ . That return was proposed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the legal position. There was thus no assessment under Section 143(1)(a) and therefore, the question of change of opinion did not arise. A reference to Section 147 therefore, was made in the context of the Assessing Officer being authorized and permitted to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. Before us, such is not the position, and even if this judgment of the High Court had been brought to the notice of the Division Bench deciding the Continental Warehousing Corporation and All Cargo Global Logistics (supra), there would not have been any difference. 26. The argument before the Income Tax Appellate Tribunal in this case was that the order passed by the Commissioner of Income Tax, Mumbai, confirming the assessment order under Section 143(3) read with Section 153A of the IT Act is both, bad in law and on facts. No addition could have been made while completing assessment under Section 153A of the IT Act in the case of completed assessment if no undisclosed income was determinable from the material found as a result of search. 27. As far as the addition under Section 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record by the Revenue, then, the earlier view of this Court binds the Revenue even on this addition. Thus, even this question cannot be termed as substantial question of law in the light of the two judgments of this Court in Continental Warehousing Corporation and All Cargo Global Logistics (supra) followed by M/s. SKS Ispat Power Limited (supra). 35. As a result of the above discussion and the question being common to all the Appeals, we dismiss all the Appeals of the Revenue. There will be no order as to costs. 36. In dismissing the same, we also take notice of the reliance on the Division Bench judgment of the Calcutta High Court. The Calcutta High Court was considering the case of the assessee introducing share capital and most of the share applicants were from rural areas of Burdwan District in West Bengal. The Assessing Officer proceeded to verify the genuineness of such huge share capital introduced. He issued summons under Section 131 of the IT Act to several shareholders. They appeared and during their examination, the Assessing Officer found the materials based on which he added the total amount of ₹ 29,54,000/ under the head Income from undisclosed sour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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