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TMI Blog2018 (12) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Pavan Kumar Gadale, JM For the Assessee : Shri S.K.Tulsiyan, AR For the Revenue : Shri S.M.Keshkamat, CITDR ORDER PER SHRI PAVAN KUMAR GADALE, JM : The Revenue has filed appeals and the assessee has filed cross objections against the order of the CIT(A)-2, Bhubaneswar, dated 14.06.2018 15.06.2018 for the assessment year 2009-2010 2010- 2011. 2. Since issues involved in all the appeals are common, therefore, they are heard and disposed off by this consolidated order. 3. Before going into the appeal of the Revenue, the ld. AR submitted that the Cross Objection is to be heard first and accordingly with the consent of ld. DR, we heard the cross objection of the assessee in the case of M/s Diamond Plaza Pvt. Ltd. in CO No.45/CTK/2018/ arising out of appeal of the Revenue in IT(SS)A No.129/CTK/2018 for the assessment year 2010-2011 along with other appeals of Revenue and cross objections of other assessee-M/s SGBL (India) Ltd. For the sake of convenience, we shall take the facts mentioned in Cross Objections of the assessee for the assessment year 2010-2011. 4. The assessee filed Cross Objection No.45/CTK/2018 for the assessment year 2010-2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .143(2) 142(1) of the Act were issued. In response to the notice, the AR of the assessee appeared from time to time and the case was discussed. Thereafter the AO completed the assessment making addition of ₹ 75,00,000/- shown as share capital including share premium in the books of the assessee u/s.68 of the Act as unexplained and passed order u/s.153A of the Act, dated 28.12.2016. 6. Aggrieved with the order of AO, the assessee preferred appeal before the CIT(A). In the appellate proceedings, the assessee reiterated the submissions made before the AO and after considering the submissions of the assessee and findings of AO, the CIT(A) allowed the appeal of the assessee and directed the AO to delete the addition. However, the CIT(A) has dismissed the additional ground raised by the assessee. 7. Now, the Revenue is in appeal against the aforesaid order of CIT(A) in directing the AO to delete the addition made u/s.68 of the Act and the assessee is in cross objection against dismissal of additional ground raised by the assessee. 8. Ld. AR submitted that the CIT(A) has erred in not accepting the claim of the assessee that there was no incriminating material found dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s objections to emphasize that no incriminating material was found during the course of search and no addition can be made. Ld. AR also emphasized by filing the paper book where the assessee in the original assessment has filed the details in respect of disputed issue of allotment of shares and share premium. The contention of ld. AR is that the CIT(A) though considered the decision of coordinate bench of the Tribunal and other judicial decisions but relied on the decisions of Hon ble Kerala and Allahabad High Courts along with other judicial decisions has dismissed the additional ground raised by the assessee in respect of no incriminating material was found in the course of search and the assessment u/s.153A has to be completed as per the original assessment order. Ld. AR referred in the written submissions, the documentary evidence of audited accounts, Panchnama, statements and seized documents and allotment of shares and assessment order u/s.143(3) of the Act. The ld. AR demonstrated and explained that in the proceedings u/s.143(3) of the Act the AO has called for the information in respect of allotment of shares which has already been considered. In the assessment order at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the substantive material filed in the original assessment proceedings and in the proceedings u/s.153A of the Act and in the appellate proceedings, dealt on this disputed issue of addition of unexplained share capital at pages 5 to 9 and finally observed after consideration of the submissions of the assessee at para 4.4 page 8 has deleted the addition. Now, the question remains that the CIT(A) has not accepted the claim of the assessee that there is no incriminating document and dismissed the additional ground. The ld. AR emphasized on written submissions and raised the vital points that the appellate authority is bound by the decision of Hon ble High Courts and to strengthen the case, ld. AR referred to the observation of the Hon ble Supreme Court in the case of Asst. Collector of Central Excise Vs. Dunlop India Ltd. Ors. 154 ITR 0172 (SC), wherein the Hon ble Supreme Court has observed as under :- We desire to add and as was said in Cassel and Co. Ltd. v. Broome(l) we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to the original return filed by the assessee on 29.9.2011 for the assessment year 2011-12 and on 27.9.2012 for the assessment year 2012-13, respectively expired on 30.9.2012 for the assessment year 2011-12 and on 30.9.2013 for assessment year 2012-13 and no such notice was issued to the assessee by the said dates. Thus, the original return of income became final on 30.9.2011 and 30.9.2012 for the assessment years 2011-12 and 2012-13, respectively i.e. before the date of relevant search. In other words, the assessment years under consideration were not abated. 25. Further, the other related facts which have been noticed are that the assessee received ₹ 9,94,50,000/- by cheques for the assessment year 2011-12 and ₹ 15,00,000/- for the assessment year 2012-13 on account of sale proceeds of investment and credited in the books of account of the assessee in the relevant assessment years. The above facts were disclosed in the return of income filed on 29.9.2011 and 27.9.2012. 26. On the other hand, ld CIT DR is of the view that in a proceeding u/s.153A of the Act even in the case of unabated assessment, addition can be made dehors incriminating search m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess' have been used at more than one place in the section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word 'assess' has been used in the context of an abated proceedings and 'reassess' has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would-also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. (iii) Pr.CIT Vs. Meeta Gutgutia Prop. M/s.Fems N Petals [2017) 395 ITR 526 (Del), wherein it was held that it is only if during the course of search u/s.132 of the Act incriminating material justifying the re-opening of the assessments for six pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) West Line, Economy Advisory Services Pvt Ltd., (xiii)Winall Vinimay Pvt Ltd., (xiv) Winall Electro Cock Fuels Pvt Ltd and (xv) Yogiraj aggregating to ₹ 9,94,50,000/- for the assessment year 2011-12 and ₹ 15,00,000/- for the assessment year 2012-13. 30. In the instant case, we find that the addition was made by the Assessing Officer on the sole ground that amount received on sale of investment of ₹ 9,94,50,000/- for the assessment year 2011-12 and ₹ 15,00,000/- for the assessment year 2012-13 were unexplained cash credit of the assessee. Thus, there is not reference to any search material by the Assessing Officer based on which such additions were made in the hands of the assessee. Therefore, we set aside the orders of lower authorities and delete the addition of ₹ 9,94,50,000/- for the assessment year 2011-12 and ₹ 15,00,000/- for the assessment year 2012-13, respectively and allow the grounds of appeal of the assessee. 13. Ld. AR further explained that the assessment is unabated as the return of income u/s.139 of the Act filed on 30.09.2009, whereas the time limit for issue of notice u/s.143(2) of the Act is on 30.09.2010 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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