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TMI Blog2022 (2) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... finality. Therefore, by following the decision of Singhad Technical Education Society [ 2017 (8) TMI 1298 - SUPREME COURT] and Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] the addition made by the A.O. and sustained by the Ld. CIT(A), in our opinion, is not in accordance with Law. We, therefore, allow the additional grounds raised by the assessee and quash the assessment proceedings initiated under section 153A instead of provisions of Section 153C - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... yment should have been shown as bad debt recovered or loan recovered in the hand of the person i.e. Shri Vishnu Garg and not as unsecured loan in the hands of the assessee-company Moreover, the assessee-company has shown this payment received as a liability in its books of accounts. That liability still exists in book of accounts of the assessee-company as on 31.03.2017. Further as per the Unsecured ledger A/c seized from the premises 17/6, Hansapal Industrial Complex. Mathura Road, Faridabad, entry of ₹ 11,20,000/- is outstanding against SBN Construction as on 31.03.2010. On perusal of balance sheet for the A.Y. 2016-17, he noted that the assessee-company has capitalized interest of ₹ 1,20,000/- on ₹ 10,00,000/- being unsecured loan from SBN Construction in subsequent years which clearly shows that the assessee-company was trying to hide the actual nature of receipt and colouring it with character of liability in its balance sheet. Therefore, the A.O. held that the assessee-company not only failed to prove the identity, genuineness and credit worthiness of the unsecured loan, but also tried to hide the actual nature of the payment in showing it as a liability in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lwan and its re-payment. Moreover, it is mentioned in para 5.3 of the impugned assessment order that the entry of SBN Construction is reflected in the unsecured loan ledger seized from premises 17/6, Hanspal Industrial complex, Mathura Road, Faridabad. Therefore, it is held that there is incriminating material emanating from the search which is related to the impugned addition. Therefore, this ground (No. 2) of the appeal is dismissed". 2.5. So far as merit of the addition is concerned, he upheld the action of the A.O. by observing as under : "5.1. Vide ground No. 3, the appellant has contested the action of the AO in terms of making the addition of ₹ 10,00,000/- by invoking provisions u/s 68. It was contention of the AR that this addition is not maintainable on merits. 5.2. It is a trite that under section 68, the onus is upon the appellant to prove three things namely, i) identity of creditor, ii) credit worthiness of the creditor and iii) genuineness of the transaction. Certainly, there is nothing on record to prove identity and creditworthiness of the creditor, namely, M/s SBN construction. It was never a contention of the AR that i) identity and credit worthiness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress and therefore, there was no search on the assessee firm and the assessment initiated and completed u/s. 153A was bad in law. 5. Learned Counsel for the Assessee referring to the decisions of the Hon'ble Supreme Court in the cases of NTPC Limited vs., CIT [1998] 229 ITR 383 (SC) and Jute Corporation of India Ltd., vs., CIT reported in 87 ITR 688 (SC) submitted that these are legal grounds and no new facts are required to be investigated and, therefore, the same should be admitted for adjudication. 6. After hearing both the sides and considering the fact that the additional grounds raised by the assessee are legal in nature and go to the root of the matter, therefore, the same are admitted for adjudication. 7. Learned Counsel for the Assessee at the outset submitted that no search was conducted at the premises of the assessee and the so-called seized document at Page No.18 was found from premises of 17/6, Hansapal Industrial Complex. Mathura Road, Faridabad which does not belong to the assessee. He submitted that the registered office and business premises of the assessee company is 149A, 1st Floor, Baba House, Kilokari, Opp. Maharani Bagh, New Delhi - 110 014. Since the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aridabad, from where the socalled seized documents Page 46 of Annexure-A-10 was found. Therefore, it is his submission that in the absence of any search taken place at the premises of the assessee, no proceeding under section 153A could have been made. Further it is also his submission that the original return was filed on 16.09.2015 and no notice under section 143(2) of the I.T. Act, 1961 was issued within the stipulated time and, therefore, the assessment has attained finality and, therefore, in the absence of any incriminating material found during the course of search, no addition could have been made in the hands of the assessee. 9.1. We find force in the above arguments of the Learned Counsel for the Assessee. Admittedly, no search has taken place at the premises of the assessee i.e., at 149A, 1st Floor, Baba House, Kilokari, Opp. Maharani Bagh, New Delhi - 110 014. The seized documents Page-46 Annexure-A10 relating to the assessee-company were found from 17/6, Hansapal Industrial Complex. Mathura Road, Faridabad which belong to LV Rustore Appliations Pvt. Ltd., R R Carwell Pvt. Ltd., and Elvi Bardahl India Pvt. Ltd. Therefore, assumption of jurisdiction under section 153A i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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