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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 ..... als 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 the present Appeals. 5. In fact, the Tribunal has done nothing except reproducing relevant paragraphs of the order of the Special Bench and its earlier view based on that Special Bench order. 6. In Income Tax Appeal No. 1709 of 2014, the assessee is an individual deriving income from other sources. The assessee filed his return of income on 2nd August, 2004 declaring total income at Rs. 24,05,800/. A search and seizure action under Section 132(1) of the Income Tax Act, 1961 (for short, "the IT Act") was conducted on 3rd January, 2008 in the case of Evershine Group and in the case of the assessee warrant of authorization under Section 132 of the IT Act was executed on the same day. The assessment proceedings under Section 153A of the IT Act were initiated. The Assessing Officer made several additions to the total income and passed an order un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond 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 Bench decision in the case of All Cargo Global Logistics Ltd. v. Deputy Commissioner of Income-tax, Central Circle44, [2012] 23 Taxman.Com 103 (Mum.) (SB) cannot be said to be correct. 13. During the course of the arguments, Mr. Ahuja has tendered a chart of the questions proposed by the Revenue for the assessment years 2005-2006 and which he states were proposed based on the lead matter, namely, Income Tax Appeal No. 1178 of 2014 for the assessment year 2002-2003. The other question based on the Special Bench decision is common to Income Tax Appeal No.1709 of 2014 for the assessment year 2004-2005 and the Income Tax Appeal No. 1780 of 2014 for the assessment year 2005-2006. 14. We have already taken this chart on record, but we formally mark it as "X" for identification. 15. Mr. Ahuja's argument is that though the assessee is heavily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench 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 Rs. 2,70,85,105/. That return was proposed under Section 143(1) of the IT Act accepting the loss returned by the respondent. A notice was issued under Section 148 of the IT Act on the ground that the claim of bad debts as expenditure was not acceptable. On 12th May, 2004, a return of income declaring the loss at the same figure as declared in the original return was filed by the respondent assessee under protest. A copy of the reasons recorded was furnished by the Revenue on the request of the assessee sometime in November, 2004. The assessee raised various objections, both on jurisdiction and the merits of the subject matter recorded in the reasons. The Revenue disposed of these objections on 4th February, 2005 holding that the initiation of reassessment proceedings was valid and it had jurisdiction to undertake such an exercise. The notice under Section 148 of the IT Act dated 12th May, 2004 was challenged by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on account of unexplained gifts received from the family members of Mr. B. R. Agarwal, the arguments have been noted. 28. The Special Bench order in the case of All Cargo Global Logistics Ltd. (supra) has been referred in the impugned order at the internal page 8 (running page 70 of the paper book). 29. The relevant paragraphs of the same have been reproduced. 30. The Tribunal concluded that the arguments relating to the validity of the notice under Section 153A and though that provision could have been invoked in the given facts and circumstances, but the additions made by the Assessing Officer were in the absence of any incriminating material. Therefore, they are not sustainable and they came to be deleted. 31. We do not think that any view other than the one taken by the Division Bench of this Court in the case of The Commissioner of Income Tax, Central-IV vs. M/s. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced. 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 Rs. 29,54,000/ under the head "Income from undisclosed sources" under Section 68 of the IT Act. The Commissioner deleted this addition but the Tribunal upheld the order of the Assessing Officer. That is how, the assessee approached the High Court. The concurrent finding of fact is that no one could form an opinion that the subscribers to the share capital had any income exigible to income tax. In other words, such persons from rural background having no taxable income, could not have subscribed to the share capital of the assessee company. It is in these circumstances that the whole deal was found to be not genuine but bogus. We do not see how this judgment has any relevance because the view taken by the Calcutta High Court is essentially on facts. 37. Therefore, we are of the opinion that the Appeals of the Revenue are without any merit. They are dismissed, but in the circumstances, there will be no order as to costs. 38. In view of dismissal of the Appeals, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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