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TMI Blog2019 (6) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... s open to the AO to initiate the proceeding U/s 147/148 of the Act instead of making the addition in the proceeding U/s 153A - Appeal of the Revenue is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) deleted the addition made by the AO on this legal issue and aggrieved by the impugned order of the ld. CIT(A) the Revenue has filed the present appeal. 3. Before us, the ld. DR has submitted that as per the provisions of Section 132 r.w.s 153A of the Act the AO is bound to issue the notice for initiation of proceedings U/s 153A of the Act to assess or reassess to the total income of 6 assessment years immediately preceding assessment year, relevant to the previous year in which such search is conducted or requisition is made. The ld. DR has thus contended that the proceeding U/s 153A are mandatory in nature and there is no escapement of the assessment or reassessment proceedings pursuant to the search and seizure action U/s 132 of the Act. There is no prejudice if the AO made the addition U/s 68 of the Act in the proceeding U/s 153A based on the information received from Investigation Wing, Mumbai disclosing the fact that the share application money shown by the assessee is nothing but accommodation entries provide by Shri Praveen Jain Group when it was opened to the AO to initiate the proceeding U/s 147/148 of the Act at that point of time but due to the mandatory nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this point including the decision of Hon'ble jurisdictional High Court in case of Jai Steel India vs. ACIT 259 CTR 281. 5. We have considered the rival submissions as well as the relevant material on record. There is no quarrel on the point that in view of the binding precedents of Hon'ble High Courts the AO in the proceeding U/s 153A of the Act in respect of the assessment year which is not pending as on the date of search cannot make addition in the absence of any incriminating material found during the course of search and seizure U/s 153A of the Act. Section 153A gives the power to the taxing authority to reopen 6 assessment years relevant to the previous year in which the search took place. Though the assessment or reassessment of these six years is mandatory in nature pursuant to the search and seizure action however, in case of completed assessment as on the date of search no addition in the reassessment proceedings U/s 153A can be made dehors incriminating material found during the search and seizure action. On the contrary where the assessment is pending on the date of search the same shall abate and the proceedings of assessment U/s 153A of the Act would be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecially when Shri Praveen Jain has categorically admitted that his group was indulged in providing accommodation entries of bogus unsecured loans and advances through BENAMI CONCERNS operated and managed by him and Others. Thus, under such facts and circumstances M/s Ansh Marchandise Pvt. Ltd. (New Planet Trading Co P. Ltd.) is nothing but a Benami Concern of Shri Praveen Jain Group. From the above case laws and discussion, it is crystal clear that- (a) The primary onus is on the aasessee to establish the genuineness of the transaction. (b) If the investigation done by the department leads to doubt regarding the genuineness of the transactions it is incumbent on the assessee to produce the parties along with necessary documents to establish the genuineness of the transaction. (c) payment by account payee cheque is not sacrosanct. In light of the various judicial pronouncements and the above discussions it is to be seen whether the assessee was able to establish the genuineness of the transactions claimed by it or it has failed in discharging this onus. The information received from investigation wing and statement of Shri Praveen Jain and group clearly explains the modus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions on this point as relied upon by the ld. AR of the assessee, we do not find any error or illegality in the impugned order of the ld. CIT(A) in deleting the addition made by the AO while passing the order U/s 153A of the Act. It is always open to the AO to initiate the proceeding U/s 147/148 of the Act if the time limit for initiation of the said proceedings was still available as on the date of passing the order U/s 153A of the Act. We find that even on the date of assessment order passed U/s 153A of the Act on 31.03.2015 the time limit for issuing the notice U/s 148 of the Act was still available with the AO. Therefore, even if the AO had no jurisdiction to make the addition U/s 153A however, it was opened to the AO to proceed to initiate the proceeding U/s 148 of the Act. Accordingly, in the facts and circumstances of the case we uphold the order of the ld. CIT(A) in deleting the addition made by the AO due to legal hurdle of making such addition without incriminating material but if the material and evidence received by the AO during the course of reassessment proceedings U/s 153A of the Act which was not available with the AO at the time of passing the assessment U/s 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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