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TMI Blog2018 (5) TMI 1727X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in the business of investments and the return of income was originally filed by the assessee on 13.10.2017 declaring nil income, which was processed u/s. 143(1) of the IT Act. Subsequently, on the basis of some documents impounded on the search and seizure operation carried out on Brahmputra Group of cases u/s. 132 on 28.09.2010, notice u/s. 153C was issued to the assessee requiring it to file the return of its income. In response, the assessee vide letter dated 28.01.2013 submitted that the return already filed may be deemed to have been filed in response to notice u/s. 153C of the IT Act. Further in response to notices u/s. 143(2)/143(1) of the Act, the assessee filed requisite details and complete books of account, which were examined by the Assessing Officer. From the details so submitted, the Assessing Officer noticed that the assessee raised share capital money worth ₹ 10,00,000/- from the following companies based in Kolkata/Howarah. Sl. No. Name of the Company No. of Shares Nominal value of share (Rs) Premium paid per share (Rs) Date of allotment 1 Midnight Agencies Pvt. Ltd. 3,000 30,000 (Rs. 10 per share) 2,70,000 (Rs 90 per share) 31.03.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal and the identical additions have been deleted by the Tribunal in both the above cases vide orders dated 29.12.2017 and 23.04.2018. It was next contended on behalf of the assessee that none of the documents/papers pointed out by the Assessing Officer in the assessment order belong to the assessee and therefore, the notice issued u/s. 153C itself is invalid. Reliance is placed on the following decisions : (i). Pr. CIT vs. Vinita Chaurasia, 394 ITR 758 (Del.) (ii). CIT vs. Arpit Land (P) Ltd., 393 ITR 276 (Bom) (iii). Canyon Financial Services Ltd. vs. ITO, 399 ITR 202 (Del) (iv). CIT vs. Renu Construction (P) Ltd. , 399 ITR 262 (Del.) (v). Pepsi Foods Pvt. Ltd. vs. ITO, 367 ITR 112 (Del), SLP dismissed by Supreme Court in Appeal © No. 4659/2015 dated 04.12.2017 (vi). M/s. Pepsico India Holding Pvt. Ltd. vs. ACIT, 370 ITR 295 (Del) (vii). CIT vs. Lavanya Land (P) Ltd., 397 ITR 246 (Bom) 4. It was next contended that none of the documents referred to by the Assessing Officer are the material, much less incriminating material, to denote any income or share capital and share premium and therefore, the notice issued u/s. 153C is legally invalid, having been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee that the above documents neither go to suggest any undisclosed income of the assessee nor any nexus with the share capital declared by the assessee. In fact, the Assessing Officer has derived inferences/presumptions on the basis of above papers found in the search without proving them as belonging to the assessee or their nature being incriminating to the assessee. Therefore, the assessment order confirmed by the ld. CIT(A) is not found fit to support, having been passed without proving the primary ingredients of section 153C of the Act. It is worthwhile to note that the very same papers, as listed above, were also taken against the other group companies, i.e., Brahmaputra Finlease (P) Ltd. and M/s. Brahmaputra Realtors (P) Ltd. for the assessment year 2007-08 and similar additions were made in those cases also based on the same search and same papers. However, the ITAT Delhi Bench in the case of Brahmaputa Finlease (P) Ltd. (ITA No. 3332/Del./2017) vide order dated 29.12.2017 has examined the same documents and deleted the addition by quashed the assessment order as under : 4.10 Another argument, made by the Ld. CIT(DR) in support of her claim of incriminating material w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding was related to the addition in question made in respect of alleged unexplained share capital. She only stated that said recording on the page reflected accommodation entry obtained by the 'Brahmaputra Group' and but no documentary evidence regarding the claim that the document was incriminating qua the addition, are filed. In respect of the Items No. (ii) to (v), the Ld. counsel has submitted that additions in respect of the amounts mentioned in the document has been made in the case of another company namely "M/s Brahmaputra Infrastructure Ltd" in assessment year 2009-10. This fact was not controverted by Ld. CIT(DR). Thus, we find that no incriminating material qua the addition made is found during the course of search from the premises of the assessee. Accordingly, above contention of Ld. CIT(DR) are rejected. She also submitted that during the course of search, hard disks of computers and others material were also seized which contained incriminating material. The Ld. CIT(A) failed to substantiate the claim either by the impugned assessment order or through any other documentary evidence. In the assessment order, there is no mention that any incriminating material is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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