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TMI Blog2017 (2) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... are of assessment years 2005-06 to 2008-09 and therefore, this document does not pertain to the year under appeal. On this ground alone, it can be said that no incriminating documents relevant to assessment year under consideration were found. However, we are also of the opinion that this document cannot be said to be incriminating document. A copy of an annexure to the annual return already furnished by the assessee with the Registrar of Companies before the date of search as a part of the annual return which is to be furnished in the statutory form can never be said to be an incriminating document. Moreover, the shares are transferred by one person to another. The assessee is neither transferor nor the transferee. So far as the assessee is concerned, no financial transaction took place by the assessee even during the financial year 2010-11. Thus respectfully following the decision in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) we hold that the additions are beyond the scope of assessment under Section 153A - Decided in favour of assessee. - ITA Nos.2739/Del/2014, 2740/Del/2014, 2741/Del/2014 & 2742/Del/2014, ITA Nos.2743/Del/2014 and 2744/Del/2014 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of unexplained cash credit u/s 68 of the I.T. Act Rs.24600000/- (ii) Addition on account of unexplained expenditure 69C of the IT Act Rs.553500/- 4. The same is sustained by the learned CIT(A). He stated that Hon'ble Jurisdictional High Court in the case of CIT Vs. Kabul Chawla [2016] 380 ITR 573 (Delhi) and CIT Vs. RRJ Securities Ltd. [2016] 380 ITR 612 (Delhi) have taken the view that in the absence of incriminating material, no addition u/s 153A can be made. That, as per Revenue, pages 70 to 74 of Annexure A-1 is the incriminating document which gives the details of transfer of shares by the initial allottees to the promoter group company at 10% of the cost. He submitted that pages 70 to 74 of Annexure A-1 is the annexure to the copy of the annual return filed with the Registrar of Companies. In the annual return to be furnished before the Registrar of Companies, the assessee has to furnish the details of the transfer of shares during the year under consideration. Since there is not sufficient space to mention the details of all the transfer of shares taken place duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The search and seizure operation was carried out at the assessee s business premises on 15th September, 2008. Proceedings u/s 153A were initiated and assessment u/s 153A was completed on 30th December, 2010 in which, the addition of ₹ 3,60,00,000/- for unexplained cash credit was made. The ITAT, vide order dated 31st December, 2016 in ITA No.1698/Del/2014 and others, deleted the addition following the decision of Hon'ble Jurisdictional High Court in the case of Kabul Chawla (supra) and RRJ Securities Ltd. (supra). Another search u/s 132A took place at the assessee s business premises on 28th March, 2011. Again, notice u/s 153A was issued and in pursuance thereto, assessment was completed u/s 153A on 28th March, 2013 in which, the Assessing Officer made the addition of ₹ 2,46,00,000/- for unexplained cash credit which is sustained by learned CIT(A), hence, this appeal by the assessee. 7. The scope of assessment u/s 153A is defined by Hon'ble Jurisdictional High Court in the case of Kabul Chawla (supra), wherein, Hon'ble Delhi High Court, after considering the decisions of other High Courts and Tribunal, has summarized the position in paragraph Nos.37 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Conclusion 38. The present appeals concern AYs 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. 8. Similar view is expressed by their Lordships in the case of RRJ Securities Ltd. (supra). In this case, in paragraph 21, their Lordships held as under :- In respect of such assessments which have abated, the AO would have the jurisdiction to proceed and make an assessment. However, in respect of concluded assessments, the AO would assume jurisidciton to reassess provided that the assets/documents received by the AO represent or indicate any undisclosed income or possibility of any income that may be remained undisclosed in the relevant assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the date of search as a part of the annual return which is to be furnished in the statutory form can never be said to be an incriminating document. Moreover, the shares are transferred by one person to another. The assessee is neither transferor nor the transferee. So far as the assessee is concerned, no financial transaction took place by the assessee even during the financial year 2010-11. In view of the above, we hold as under :- (i) Pages 70 to 74 of Annexure A-1 cannot be said to be incriminating document. (ii) These papers are pertaining to financial year 2010-11 and therefore, not relevant to the assessment year under appeal. 10. In view of the above, respectfully following the decision of Hon'ble Jurisdictional High Court in the case of Kabul Chawla (supra) and RRJ Securities Ltd. (supra), we hold that the additions of ₹ 2,46,00,000/- and ₹ 5,53,500/- are beyond the scope of assessment under Section 153A of the Act. Accordingly, the same are deleted. ITA No.2740 to 2742/Del/2014 Best Infrastructure (India) Pvt.Ltd. AY : 2006-07, 2007-08 2008-09 :- 11. At the time of hearing before us, both the parties agreed that the grounds raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td., then only the documents considered in the case of the assessee i.e., M/s Best City Developers (India) Pvt.Ltd., would be incriminating documents. Both the parties therefore agreed that, in effect, these appeals are consequential because, if documents at pages 70 to 74 of Annexure A-1 are held to be incriminating material in the case of M/s Best Infrastructure (India) Pvt.Ltd., the documents found in the case of the assessee would be incriminating material, otherwise not. 15. We have carefully considered the submissions of both the sides and perused the material placed before us. For ready reference, we deem it proper to reproduce the relevant paragraphs of learned CIT(A) s order wherein he has discussed the seized material in the case of the assessee :- Details of seized documents pertains to parties other than parties which has been searched u/s 132 of the IT Act, 1961 Best City Developers A-1 Page-59, 60, 61 A-2 A-3 Page-41, 42, 43, 64, 66 A-4 Page-72, 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. They have to be read with another important document at pages 70-74 of seized Annexure A- 1 (based on which proceedings u/s 153A in the case of Best Infrastructure (India) Pvt.Ltd. are being upheld). Only then the documents in Annexure-4 become incriminating documents. 16. From the above, it is evident that pages 60 and 61 of Annexure A-1 considered in the case of the assessee is the challan for payment of the fees paid by the assessee to Ministry of Corporate Affairs. Admittedly, these papers cannot be said to be incriminating material. Annexure A-3 pages 41, 42 43 are bank statement of the appellant s account maintained with ICICI Bank, Rohini, Delhi. Page 64 of Annexure A-3 is RTGS transaction request from Axis Bank Ltd. and page 66 is also a letter of the appellant requesting the Branch Manager, ICICI Bank for transfer of funds from their account. Admittedly, none of the above documents is incriminating material. Annexure A-4 page 72 is the ledger account of Diksha Sales Private Limited in the books of the assessee. Page 73 is the letter sent by Diksha Sales Private Limited addressed to ACIT written in response to notice u/s 133(6) for assessment year 2007-08. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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