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TMI Blog2021 (7) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... kered with. As already held that share certificates as well as the share transfer forms found during the course of search on AKruti Hotels Ltd does not pertain to the assessee and therefore same can also not be an incriminating material, which has a bearing on the income of the assessee. Thus, there cannot be any addition in the hands of assessee on this count. In view of this, the ground raised by the assessee by invoking Rule 27 of ITAT Rules succeeds. In the result, on this issue the appeal of the department fails. The issue on the merits of the case with respect to the addition u/s 68 of the Act is left open. X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 10/- each and has collected share premium of ₹ 4,90,00,000/-. Thus, the total share capital was issued of ₹ 5 crores. He noted that the assessee company has just been incorporated, yet to start its operation but has received huge premium per share of ₹ 490/ - from 10 companies, which are based at Kolkata. The ld AO issued letters to all these companies u/s 133(6) of the Act asking for the audited accounts, audited report, source of investment, details of business and reasons for investment along with bank statement. The letters were either not replied or remained unserved. Therefore, assessee was asked to submit all these details. Assessee was also asked to produce all the Directors for their personal examination to verify identity, creditworthiness, and genuineness of the transaction. The assessee submitted the requisite details and the ld AO noted that the companies are showing meager profit, based at Kolkata, Guwahati, not engaged in any business, does not have any legitimate income for source of this investment and no bank statement was furnished. Therefore, the ld AO issued show cause notice that why the above sum of ₹ 5 crores should not be add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was not given any opportunity stating that notices have not been served on which shareholder. He further held that declaration of small profit of shareholder does not say that investment is not genuine as the investments are disclosed in the balance sheet, which explained the source of such investment. He held that the assessee has already filed the balance sheet of the investors. In view of this, he deleted the addition u/s 68 of the Act as according to him assessee discharged its onus by proving identity, creditworthiness, and genuineness of the new shareholders. Thus, on the issue of jurisdiction he decided against the assessee and on the merits, he deleted the addition. Therefore, the ld AO has filed this appeal before us contesting the deletion of addition of ₹ 5 crores u/s 68 of the Act. 8. At the time of hearing the assessee has invoked the provision of Rule 27 of the ITAT Rules contesting that the issue of jurisdiction is decided against the assessee wherein, the ld CIT (A) relying upon the decision of the Hon'ble Delhi High Court in case of Anil Bhatia has held that addition can be made in the hands of the assessee in concluded assessment despite no in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that these are incriminating documents. She further referred to page No. 15 of the order of the ld CIT (A) wherein, categorically share certificate in name of certain shareholder and share transfer form were found. She stated that when the assessee has issued share to Kolkata based company at a hefty premium finding from share certificate and share transfer form clearly shows that those are incriminating documents. Such documents coupled with the low income of the shareholder makes it an incriminating documents based on which the ld AO correctly assumed jurisdiction u/s 153A of the Act. She submitted that all these documents are all with respect to the shareholder and therefore, it has been correctly used to invoke provisions of section 153A of the Act. 11. She also submitted that on the merits the genuineness of the parties who introduced share capital is in series doubt and the ld CIT(A) have not given any reason that even if the assessee failed to produce the share holders before the ld AO the addition is deleted. She submitted that the ld CIT (A) has grossly erred in deleting the addition u/s 68 of the Act. She relied on plethora of judicial precedents wherein, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court in case of Shri Anil Bhatia in [2012] 24 taxmann.com 98 (Delhi)/[2012] 211 Taxman 453 (Delhi)/[2013] 352 ITR 493 (Delhi that the jurisdiction of the assessing officer u/s 153A is to assess total income for the year and not restricted to seized material Where it has been held that even if for one assessment year, there are seized documents, the relatable to addition, the assessing officer can be made addition for all the assessment years covered u/s 153A. Therefore, accordingly on jurisdictional grounds the grounds of appeal are dismissed for both the assessment years. Therefore apparently he decided on this issue against the assessee and therefore the assessee is entitled to challenge this issue as it has been decided against the assessee by invoking provisions of rule 27 of the Income Tax Appellate Tribunal Rules. The arguments of the assessee are also supported by the decision of the honourable Delhi High Court in Sanjay Sawhney V PCIT [2020] 116 taxmann.com 701 (Delhi)/ [2020] 273 Taxman 332 (Delhi) [2020] 116 taxmann.com 701 (Delhi)/ [2020] 273 Taxman 332 (Delhi). Therefore we now proceed to decide the issue whether the additions on the basis of the seized ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be tested whether the documents found during the course of search on Akruti Hotels limited are pertaining to the assessee or not. In the present case the documents found are at page 49 on Annexure A-11 is share certificate in the name of Raj Nand Hela. Page no. 51 is share transfer form of certificate No. 15 in the name of Raj Nand Hela. Both these documents are the property of Mr. Raj Nand Hela and therefore, there cannot be said to be the pertain to the assessee. Similarly page No. 51 and 52 the share certificate in the name of Response Overseas Ltd and share transfer form were found. These share transfer forms also did not belong to the assessee but to the shareholder. The share certificate shows that those investors are holding share in the assessee company. Therefore, the property of this share certificate does not remain with the assessee but with the shareholder whose name appears on those share certificates. Anyway, these shares are issued by the assessee in the name of those persons, which is part of the details of shareholders as well as the books of account of the assessee wherein share capital is shown. If it is to be believed that these documents found during th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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