9911796707
TMI Blog2021 (12) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional high court as cited above. And further, with reference to the order of assessment or even going by the order of learned CIT (A), the learned CIT DR was not able to point out any single document which was not disclosed by assessee prior to search proceedings and neither the judgments so relied by counsel of assessee were rebutted or contradicted by learned CIT DR. We have no hesitation to hold that firstly, none of the documents mentioned in the order of assessment more specifically the copy of flowchart, email and share certificates are incriminating in nature out of which any adverse inference can be drawn as to any undisclosed income, relating to assessee-company have been unearthed during the course of search and; since, the impugned assessment year from 2008-09 to 2011-12 were not pending, as the assessment stood completed prior to the date of search, therefore, we hold that without any incriminating material, concluded assessments cannot be tinkered with and no addition can be made without there being any incriminating material for the impugned assessment year. Accordingly, we hold that the additions made by the Assessing Officer are beyond the scope of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesh Gupta, Advocate For the Revenue : Shri Sanjay Singh, CIT DR ORDER PER BENCH: The aforesaid sixteen appeals filed by Revenue pertains to seven assessee s namely; i) M/s Jay Auto Components Ltd, ii) M/s Jay Iron Steel Ltd., iii) M/s JPM Tools Ltd., iv) M/s Jay Fe Cylinders Ltd., v) M/s Jay Ace Technologies Ltd., vi) M/s JJF Casting Ltd. and vii) M/s Jay Nikki Industries Ltd. In all the aforesaid cases, the order of CIT (A) though separate and independent but is identical and is of even date 19.09.2017, passed by CIT (Appeals)-XXVI. 1. The brief facts of the case are that, search and seizure operation under section 132(1) of the Income Tax Act was carried out on Minda group of cases group of cases on 20.09.2013. The assessee s being part of Minda Group was also subjected to search. As such, notices u/s 153A dated 08.06.2015 of the Income Tax Act were issued to the assessee s, after which assessments were made by learned assessing officer vide order dated 30.03.2016. Here too also it is important to note that even though the assessing officer has passed separate and independent orders for all the aforesaid assessee s, but, his observations/ enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts and in law in not even considering the statements of directors of the investing companies admitting that the investing companies in which they are directors, are actually paper companies meant for providing accommodation entries. 5. The appellant craves the leave to add, amend any/ all the grounds of appeal before or during the course of hearing of the appeal. 5. That further, the assessee company has also filed applications under Rule 27 of ITAT Rules in as many as twelve appeals. The break up of said appeals along with ground taken in Rule 27 application is extracted below: Assessee s Appeals involving legal issues under section 153A of the Act, as the assessments were final on date of search and additions are not based on incriminating material i) M/s Jay Iron Steel Ltd. AY 2008-09: ITA No. 6626/Del/2017 AY 2009-10: ITA No. 6639/Del/2017 AY 2010-11: ITA No. 6628/Del/2017 AY 2011-12: ITA No. 6629/Del/2017 ii) M/s JPM Tools L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssments framed under section 153A of the Act are beyond the scope of assessment, as the assessments were final on date of search and additions are not based on incriminating material 1. t the outset, it is most humbly submitted that the assessee appellant has filed Rule 27 application on 24.07.2021 vide email with regards to 12 appeals, which involves consideration of legal issue and it is further submitted and prayed that M/s Jay Iron Steel Ltd. may be taken as lead matter. As it contains all appeals which falls under Category 1 and 2. For instance, if appeal for AY 2008-09 is argued on legal and merits both, it will take care of 16 appeals falling in Category 1 and Category 2. That, if appeal for AY 2014-15 is argued, then the same will cover 5 appeals falling in Category 3. Thus, all in all, 21 appeals will be covered if M/s Jay Iron Steel Ltd. is taken as the lead matter. As such, the chronological sequence of events with regards to the matter of M/s Jay Iron Steel Ltd. for AY 2008-09, is as below: Sr. No. Particulars Date i) Date of search u/s 132 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Five Vision Planners Pvt. Ltd. in ITA No. 4460/Del/2014. h) Judgment of High Court of Delhi in the case of PCIT vs M/s Dreamcity Buildwell Pvt. Ltd. in ITA No. 1152/2017. i) Order of ITAT Delhi M/s TDI Infrastructure Ltd. vs DCIT in ITA No. 5580, 4409, 4410 and 5072/Del/2012. j) Order of ITAT Delhi ACIT vs Realtech Construction Pvt. Ltd. (ITAT Delhi) in ITA No. 6569/Del/2016. 3. In view of the aforesaid judgments, and also settled position of law, it would be necessary to examine as to whether any incriminating material was found during the course of search with regards to the share capital/ share application money. In this regards, a bare perusal of assessment order would reveal that following documents have been referred by learned AO in the assessment order, which have been found as a result of search: a) Share Certificates were found during the course of search, with regards to allotment of shares by Minda group of companies to various companies (kindly see page 18 of assessment order). These share certificates pertained to 8 companies, namely, M/s JA Builders Ltd, M/s JPM Automobiles Ltd, M/s IBER Medior Ltd, M/s JPM Tsukada Pvt Ltd, M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards to receipt of unsecured loan of ₹ 95 lacs by M/s Jay Ace Technologies Ltd. from M/s Suhana Marketing Pvt. Ltd. and there is no other name which pertains to any of the companies of JPM Group. It is further, submitted that while framing the assessment of M/s Jay Ace Technologies Ltd. for AY 2013-14 (to which the document relates), no addition has been made by learned AO in the assessment under section 153A read with section 143(3) of the Act. Thus, here it is submitted that once the said document has been accepted to be recorded in books of accounts and no addition has been made with regards to the same, in the hands of M/s Jay Ace Technologies Ltd., the same document cannot be treated as incriminating , and that is why, even though the learned AO has referred the said document in the order of assessment, however, no adverse inference has been drawn with regards to the said document in the entire assessment order. Even the learned CIT (A) has recorded a positive finding in favor assessee (kindly see pages 61 to 62 of CIT (A) order). 6. With regards to copy of email seized and marked as Party O 2, Annexure A 4, Page 106, it is submitted that the same is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of search depict undisclosed income, whereas, in the case of assessee, only three set of documents have been seized during the course of search proceedings (as are referred in the assessment order), and beyond these three seized documents, no other document seized as a result of search has been referred or relied by the learned assessing officer in the order of assessment. The nature of these documents so seized and its implication/ bearing on taxable total income of the assessee respondent has been explained by the learned Counsel of assessee, which are summarized as under: With regards to the share certificates of 8 companies seized during the course of search, it was submitted that even the learned AO has not made any adverse observations with regards to the said documents, as the same cannot be said to be incriminating in nature, since the share certificates merely records the details of shares issued and allotted which are duly recorded in the books of accounts prior to the date of search. These share certificates were only the statutory records kept with the companies, to be filed before ROC and the same was kept by the Secretarial department of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the entire assessment order. Even the learned CIT (A) has recorded a positive finding in favor assessee (kindly see pages 61 to 62 of CIT (A) order). With regards to copy of email seized and marked as Party O 2, Annexure A 4, Page 106, it is submitted that the same is only a simple email regarding discussion for future plan of restructuring and does not contain any financial transaction or have a bearing on the income of the assessee group. The said email has no where made any reference to any accommodation entry nor to any transaction with regards to the same. That is why, even though, the learned AO has referred the said document at pages 16 and 17 of his order, however, no adverse inference has been drawn with regards to the said document while making the additions with regards to share capital. Even the learned CIT (A) at page 62 of his order, has recorded that the said email has no financial implication and as such, it is submitted that the said document cannot be termed as incriminating in nature . 9. In support of the aforesaid arguments, the learned counsel placed reliance on following judgments: a) Judgment of the High Court of Delhi in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminating , as the said material did not depict any undisclosed income of the assessee, is not as per the various judicial pronouncements. 11. That Ld. CIT DR Sh. Sanjay Kumar, placed heavy reliance on the order of AO and CIT (A) and argued that the documents so seized more specifically the share certificates had a bearing on total income of the assessee and thus, the same can be termed as incriminating. The learned CIT DR further argued that on the basis of the documents seized, inference has been drawn by learned AO and that is how additions have been made in the order of assessment. He argued that the post search investigations and statement of Sh. Rajesh Agrawal recorded by investigation wing post search, clearly depicted that the assessee s were involved in taking accommodation entries and as such, post search investigations clearly is linked with the seized document would depict that the assessee s have taken accommodation entries to route their undisclosed income in the books of account. 12. That the learned counsel of the assessee in rejoinder submitted that the arguments so made by learned CIT DR are contradictory to the law laid down by Hon ble jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the order of assessment at pages 14 to 17 of assessment order. For the sake of brevity, the said documents are being discussed as under: i) Document seized from M/s Jay Ushin Ltd. marked as Party O 2, Annexure A 1, Page 50, a perusal of the said document, which has been extracted by learned AO at pages 14 to 16 of his order, would show that only transaction related to JPM group is with regards to receipt of unsecured loan of ₹ 95 lacs by M/s Jay Ace Technologies Ltd. from M/s Suhana Marketing Pvt. Ltd. and there is no other name which pertains to any of the companies of JPM Group. We have also, noticed that the said document nowhere mentions about the share capital, rather the said document is with regards to unsecured loan and also while framing the assessment of M/s Jay Ace Technologies Ltd. for AY 2013-14 (to which the document relates), no addition has been made by learned AO in the assessment under section 153A read with section 143(3) of the Act. Thus, here it is observed that once the said document has been accepted to be recorded in books of accounts and no addition has been made with regards to the same, in the hands of M/s Jay Ace Technologies Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recorded in the books of accounts. The learned CIT DR though argued that original share certificates were seized during the course of search, however, the assessee s case all throughout has been that photocopies of share certificates were seized. In any case, even in the remand report which has been extracted by CIT (A) at page 42 of his order, the AO has not been able to place material on record to rebut the contention of assessee that the share certificates were photocopies and not original. Even the Ld. CIT DR during the course of hearing has not been able to place on record any material to establish the factual position as to whether the share certificates seized were original or photocopies. However, on going through the orders of assessment, we have noticed that no addition has been made with regards to the share certificates seized of six companies seized by the Revenue and additions have only been made with regards to two companies i.e. M/s JPM Tools Ltd. and M/s Jay Nikki Industries Ltd., wherein, also the learned AO in the order of assessment has not made the share certificates as a basis to make addition under section 68, rather, he has placed reliance on the post in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing officer cannot refer to any post search investigation or any other outside material to tinker with the assessments which are already final. This principle has been settled by the Hon ble jurisdictional high court in the case of CIT vs Kabul Chawla (supra) and various other judgments of jurisdictional high court along with order of this Tribunal. At this juncture, we would like to refer to decisions cited by the assessee s counsel with reference to the judgment paper book on the aforesaid proposition as under: i) CIT vs Kabul Chawla (Delhi HC) reported in 380 ITR 573. 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order has held that in the audited report filed by the assessee along with the report, cash book, ledger, bank book etc. were mentioned; that the respondent assessee was maintaining books on TALLY Accounting Software which was seized during the search and was being treated as incriminating material; however, regular books of account of the assessee, by no stretch of imagination, could be treated as incriminating material to form basis of framing assessment under Section 153A read with Section 143(3) of the Act. It was further held that assessment for the Assessment Years 2008- 2009 and 2009-2010 were completed under Section 143(3) vide orders dated 28th July, 2010 and 31st May, 2011 respectively and audited books of account were thoroughly examined and details of purchase of milk must have been scrutinized as it was part of audited financial statement of accounts; as per Kabul Chawla supra, completed assessments can be interfered only on the basis of some incriminating material unearth during the search. iii) PCIT vs Jaypee Financial Services Limited (Delhi HC) reported in 280 Taxman 147. Section 153A of the Income-tax Act, 1961 - Search and seizure - Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he distinguishing feature in sections 143(1) and 143(3) has not been considered by the Tribunal in an assessment under section 143(3) of the Act a long drawn inquiry is contemplated. It would also amount to examination of evidence. However, inquiry under section 143(1) of the Act is limited on the basis of return filed. In view of that the judgments relied on would not be applicable. 5. We have considered the arguments canvassed by the learned counsel for the respective parties. On perusal of section153A of the Act, it is manifest that it does not make any distinction between assessment conducted under section 143(1) and 143(3). This court had occasion to consider the scope of section153A of the Act in the case of Gurinder Singh Bawa and in the case of Continental Warehousing Corpn. (Nhava Sheva) Ltd. (referred to supra). It has been observed that section153A cannot be a tool to have a second inning of assessment either to the Revenue or the assessee. Even in the case of Gurinder Singh Bawa (referred to supra) the assessment was under section 143(1) of the Act and the court held that the scope of assessment after search under section153A would be limited to the incriminating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, we are of the considered opinion that when the addition is not based on any incriminating material found as a result of search, no addition can be made u/s 153A/143(3) of the Act. 16. Thus, in view of our aforesaid discussion and also in view of aforesaid judgments, we hold that the concluded assessments cannot be interfered with unless there is incriminating material discovered from the seized documents as a result of search and further, no additions can be made where the assessments are framed u/s.153A for unabated year i.e. where no assessment is pending. The seized documents must at least clearly point out that there is some undisclosed income, which here in this case is completely absent, as is discussed above, and thus, are not in the nature of incriminating material so as to warrant any addition. 17. In so far as the submissions made by ld. CIT-DR, regarding seized documents having bearing on total income becoming incriminating documents automatically, we are not impressed with the arguments of Ld CIT DR, as the same goes contrary to the judgments of jurisdictional high court as cited above. And further, with reference to the order of assessment or eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y 2011-12: ITA No. 7281/Del/2017 iii) M/s Jay Auto Components Ltd. AY 2008-09: ITA No. 6627/Del/2017 AY 2009-10: ITA No. 6622/Del/2017 AY 2010-11: ITA No. 6623/Del/2017 AY 2011-12: ITA No. 6624/Del/2017 iv) M/s Jay FE Cylinder Ltd. AY 2011-12: ITA No. 6640/Del/2017 v) M/s Jay Ace Technologies Ltd. AY 2010-11: ITA No. 6638/Del/2017 22. Since the facts, enquiries made by lower authorities and findings so recorded by lower authorities are identical in all the aforesaid cases and additions in the aforesaid appeals also are not based on any incriminating material found during the course of search and we have already held that the addition made by the AO being not based on any incriminating material, the addition cannot be sustained in the orders passed u/s 153A/143(3) of the Act. Therefore, the applications filed under Rule 27 of the ITAT Rule in all the remaining 11 appeals are allowed. 23. In the result, all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and denial of cross examination by AO during the assessment proceedings or even in the remand proceedings is not fatal, as modus operandi of cash been deposited in companies managed by Sh. Rajesh Agarwal and cheques being issued to assessee company has been established by AO in the order of assessment. 27. The Ld. CIT DR further argued that the learned AO during the course of assessment proceedings issued notices under section 133(6) of the Act to the subscriber companies, which was received back unserved, however, replies were received from the said companies. It was further submitted by the learned CIT DR that the assessee failed to produce the directors of the subscriber companies, which was specifically asked for by the AO during the course of assessment proceedings. 28. LD. CIT DR pointed out that, the assessee companies did not command such huge premium and even the subscriber companies have meager income, which shows that they do not have their own funds to invest in the share capital of the assessee group. The learned CIT DR further placed reliance on the judgments of Hon ble High Court of Delhi in the case of PCIT vs NDR Promoters Ltd. reported in 410 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT (A). The said submissions so filed before learned CIT (A) and findings so recorded by learned CIT (A), on which completed reliance is placed by the assessee group, can be summarized as below: a) JPM group is a leading manufacturer in the country with regards to automotive components and its esteemed customers includes esteemed companies like Maruti Suzuki, Honda, Hyundai etc. That the entire JPM group commanded a turnover of over ₹ 2500 crores in financial year 2014-15 and further, even one of the companies in the group namely, M/s Jay Ushin Ltd. is a listed company with BSE for which the price of shares in open market are being traded at more then ₹ 200. As such, the allegation of learned AO that the group does not command a premium of ₹ 90 is factually incorrect and fallacious (kindly see pages 12 to 16 of CIT (A) s order). Finding of learned CIT (A) is at page 66 of the order, wherein, he has recorded that with regards to valuation of share premium, the provisions of section 56(2)(vii) have been brought in statute from AY 2013-14, thus, the same is not applicable for assessments till AY 2012-13 and further, there is no evidence been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, when the transactions are through account payee cheques and there is no evidence gathered by the learned AO with regards to any collateral payment exchanging hands for issuance of share capital. Reliance is placed on the judgment of Hon ble High Court of Delhi in the case of CIT vs Good View Trading (P) Ltd. reported in 77 taxmann.com 204 (kindly see pages 62 to 63 and 65 to 69 of CIT (A) s order). c) The statement of Sh. Rajesh Aggarwal, alleged accommodation entry operator, was provided to the assessee at the fag end of the assessment proceedings, wherein, immediately assessee demanded for his cross examination, which was denied by learned AO (kindly see pages 50 to 52 of AO s order and 25 to 28 of CIT (A) s order). That further, the statement so provided of Sh. Rajesh Aggarwal, would show that his statement is inconsistent and as such, cannot be relied upon (kindly see page 24 of CIT (A) s order). Finding of learned CIT (A) is at pages 63 to 65 of his order, wherein, it has been held that the learned AO has not provided opportunity to cross examine of Sh. Rajesh Aggarwal to the assessee which statement is also inconsistent at various stages, whereas, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Planner (P) Ltd. f) ITA No. 1125/D/2012 A.Y. 2002-03 dated 01.06.2012 ITO vs. M/s Hi Tech Accurate Communication (P) Ltd. g) ITA No. 1177/D/2012 A.Y. 2001-02 dated 05.10.2012 ITO vs. India Texfab Marketing Ltd. h) ITA No. 4498/D2010 A.Y. 2003-04 dated 30.12.2010 Intimate Jewels (P) Ltd. i) ITA No. 1078/Del/2013 Mithila Credit Services Ltd. vs. ITO j) ITA No. 212/2012 (Del) dated 11.04.2012 CIT vs. Goel Sons Golden Estate (P) Ltd. k) ITA No. 50/Del/2011 ACIT vs. Panchanan International Pvt. Ltd. l) ITA No. 535/Del/2009 dated 31.03.2015 Asst. CIT vs. Lakshmi Float Glass Ltd. m) ITA No. 71, 72 84 of 2015 (Del) dated 12.08.2015 CIT vs. Vrindavan Farms Pvt. Ltd. 14. In light of the aforesaid, it is thus, prayed that all 16 appeals so filed by department on merits since involves consideration of identical issues and in view of our aforesaid submissions the appeals so filed by Revenue be dismissed. 30. The Ld. Counsel for the assessee further argued that about the seizure of the copies of the blank signed share certificates relating to share capital and premium received by the assessee constituting an incriminating m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. The learned Counsel of assessee at the time of hearing was directed to file net worth of these companies placed before the authorities below, which he pleaded at the time of hearing that even all the subscribing companies had sufficient net worth to make investment in the assessee group, which is evident from the audited financial statements submitted by the said companies before the learned AO, however, the learned AO failed to appreciate the said evidence nor contradicted the same. The copy of the statements was filed after the conclusion of hearing as directed by us to verify the same. For the sake of convenience the net worth of subscribers and the investments made by them in M/s Jay Auto Components Ltd., is being tabulated below as submitted before us (similar is the position in all the 16 assessee s): Subscribing Company Net Worth as per Balance Sheet (in Rs) Investment made in share capital (in Rs) M/s Festino Agencies Pvt. Ltd. 2, 83, 00, 000/- 15, 00 , 000/- M/s Eversite Commodities Pvt. Ltd. 2, 65, 84, 00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the balance sheets of the subscriber companies, would have been minutely examined by learned AO, it would have made it clear that the said companies have high net worth to invest in shares of the assessee companies and as such, income returned cannot be the only criteria for the purposes of section 68 of the Act, more so, when the transactions are through account payee cheques and there is no evidence gathered by the learned AO with regards to any collateral payment exchanging hands for issuance of share capital. Reliance was placed on the judgment of Hon ble High Court of Delhi in the case of CIT vs Good View Trading (P) Ltd. reported in 77 taxmann.com 204. 34. The learned counsel for the assessee further stated that the statement of Sh. Rajesh Aggarwal, alleged accommodation entry operator, was provided to the assessee at the fag end of the assessment proceedings, wherein, immediately assessee demanded for his cross examination, which was denied by learned AO in the assessment proceedings and even at the remand proceedings and also by the learned CIT (A) (at pages 50 to 52 of AO s order and 25 to 28 of CIT (A) s order). That further, the statement so provided of Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these parties to corroborate the assessee s explanation and the documents submitted by the assessee to prove the nature and source of credit. Regarding various observations and allegations of the Assessing Officer, the ld. counsel has given a very detailed rebuttal based on documents on record as incorporated above in the foregoing paragraphs. From bare perusal of the explanation duly supported by the documents, we find that whatever so called inquiry which was conducted by learned AO has not lead to any iota of adverse material so as to hold that the transactions are not genuine. Further, we find that nowhere Assessing Officer has made any effort or conducted any investigation to rebut the documentary evidences so filed by the assessee in order to support the genuineness of share capital received from subscribers and even in response to the replies received from subscriber companies to the notices u/s.133 (6) and what extra he wanted to examine, has not been mentioned. 39. Another allegation by the Assessing Officer was that these companies have received funds from other companies before issuance of cheques through the assessee company and also tried to analyze fund trail to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Gajeshwar Sales Pvt. Ltd. 3, 88, 61, 942/- 5, 00, 000/- M/s Matribhumi Commodities Pvt. Ltd. 4, 15, 90, 000/- 5, 00, 000/- M/s Monalisa Commercial Pvt. Ltd. 3, 74, 35, 000/- 16, 00, 000/- Lambodar Commercial Pvt. Ltd. 2, 96, 25, 000/- 8, 00, 000/- Bhavtarani Sales Pvt. Ltd. 3, 76, 50, 000/- 18, 00, 000/- M/s Mukul Mills Pvt. Ltd. 2, 22, 33, 000/- 18, 00, 000/- M/s Mayur Vanijya Pvt. Ltd. 3, 32, 99, 907/- 5, 00, 000/- M/s Octal Commodities Pvt. Ltd. 3, 03, 42, 000/- 15, 00, 000/- M/s Vandana Designs Pvt. Ltd. 1, 65, 05, 000/- 8, 00, 000/- M/s Exotica Commodities Pvt. Ltd. 1, 81, 73, 303/- 7, 00, 000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by such share applicants and did not carry out a deeper analysis or rather chose to ignore it. In these circumstances, the inferences drawn by the CIT (A) are not only factual but facially accurate. 9. Having regard to these circumstances, the Court discerns no question of law, least a substantial question, having regard to the fact that the judgment in Lovely Exports (supra)was cited and applied. 10. For these reasons, there is no merit in the appeal; the same is accordingly dismissed. 42. Further, the learned AO and Ld. CIT DR have also drawn heavy support from the investigation report of the Kolkata Investigation Wing and the statement of Sh. Rajesh Agrawal. On going through the assessment order and the remand report, we find that the statement of Sh. Rajesh Agrawal was provided to the assessee at the fag end of assessment, i.e., on 11.03.2016 and immediately thereafter the assessee vide reply dated 21.03.2016 had sought for the cross examination of Sh. Rajesh Agarwal, which could not be provided to the assessee. The said issue of cross examination was also raised before ld CIT (A) vide written submission which was accepted by ld CIT (A), wherein, the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded by the CIT(Appeals) was factually incorrect. In case, Revenue wanted to contend and show that payment was made by the respondent assessee to brokers etc., then evidence/material should have been filed. This was not done. 9. The tribunal, examined the factual matrix and has upheld the findings recorded by the CIT( Appeals). 10. We do not think that the aforesaid findings are perverse or require any interference in exercise of our jurisdiction under Section 260A of the Act. The factual finding as recorded by the first appellate authority and the tribunal is that the payments were made by the purchasers who had booked plots/flats. While making payment, discounted price was paid by the buyers. In these circumstances, we do not think that Section 194H of the Act can be invoked. Therefore, no substantial question of law arises on the first aspect. 46. We have also noticed that the assessee apart from submitting the various documents related to receipt of share capital and share premium as listed hereinabove, also furnished the workings for share valuations using discounted cash flow method and furnished explanation for issuing shares at a premium taking into a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
