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TMI Blog2025 (1) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [ 2023 (10) TMI 278 - GAUHATI HIGH COURT ] and reasoning therein emphasized by the Ld. CIT-DR, are of the considered view that there was incriminating material and information on the record before the AO. Accordingly, we decline to interfere in the finding of the Ld. CIT(A). Hence, the assessment order completed in pursuance of section 153A of the Act, notice is held valid in the eyes of law. Nothing has been brought on the record by the Ld. Counsel to contradict the finding of the Ld. CIT(A). Decided against assessee. - Shri Vikas Awas Thy, Judicial Member And Shri Avdhesh Kumar Mishra, Accountant Member For the Appellant : ShriVed Jain, Advocate, Shri Aman Garg, CA And Ms. Ishika Dua, CA For the Respondent : Ms. Jaya Choudhary, CIT-DR and Shri Om P arkash, Sr. DR ORDER PER AVDHESH KUMAR MISHRA, AM Common grounds and facts arise in the above captioned appeals of the assessee; therefore, the same were heard together and are being disposed off by this common order. 2. Both appeals for the Assessment Years (hereinafter, the AY ) 2008- 09 and 2009-10 respectively filed by the assessee are directed against the orders dated 27.05.2024, passed by the Commissioner of Income Tax (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing found during the course of the search. 8. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law, confirming the action of the AO despite the fact that the order passed by the AO without obtaining valid prior approval under section 153D of the Income Tax Act. 9. (i) On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the addition of Rs. 1,74,00,000/- on account of share capital and share premium received by the assessee. (ii) That the above addition has been confirmed rejecting the detailed submission/explanations along with the evidences brought on record by the assessee to prove the identity and creditworthiness of the investors as well as genuineness of the transactions. 10. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the above addition despite that the same has been made merely by relying on the statements recorded at the back of the assessee, without giving assessee an opportunity to cross examine the same. 11. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the assessment order passed under section 153A is illegal and bad in law as the same has been passed without having valid jurisdiction. 7. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the additions made by the AO under Section 153A are bad in law in the absence of any incriminating material belonging to the assessee being found during the course of the search. 8. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law, confirming the action of the AO despite the fact that the order passed by the AO without obtaining valid prior approval under section 153D of the Income Tax Act. 9. (i) On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the addition of Rs. 78,00,000/- on account of share capital and share Premium-received by the assessee. (ii) That the above addition has been confirmed rejecting the detailed submissions and explanations along with the evidences brought on record by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: - S. No. Assessment Year 1. 2018-19 2. 2017-18 3. 2016-17 4. 2015-16 5. 2014-15 6. 2013-14 7. 2012-13 8. 2011-12 9. 2010-11 10. 2009-10 4.2 In view of above, it was argued that the AY 2008-09 was beyond the ten-year outer ceiling limit prescribed by the section 153A of the Act. Hence, he prayed that the assessment order passed by the AO, being illegal and bad in law, should be quashed. 4.3 For the above contention/argument, the Ld. Counsel placed reliance on the decision of the Delhi High Court in the case of Ojjus Medicare Pvt. Ltd. and Others, 2024 (4) TMI 268, order dated April 3, 2024, Shri Durai Gunasekaran (Legal Heir Representing Late Ms. Durai Amsaveni), 2022 (9) TMI 7,0-ITAT Chennai, order dated August 3, 2022 and A.R.Safiullah 2021(6) TMI 8670 Madras High Court, order dated March 24, 2011. 5. On the other hand, the Ld. CIT-DR placed emphasis on the finding of the CIT(A) and contended that the impugned order should be sustained. 6. We have heard both the parties and have perused the material available on record. In view of the decision of the Hon ble Delhi High Court in the case of Ojjus Medicare Pvt. Ltd. (Supra) wherein it was categorically held as under: - The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uentially, the assessment order passed under section 153A of the Act is held invalid in the eyes of law. Hence, we quash the assessment order. 8. In the result, the appeal of AY 2008-09 is allowed. ITA No. 2900/Del/2024, A.Y. 2009-10 9. The issue in dispute is confined to share capital and share premium aggregating to Rs. 1,74,00,000/-. The brief facts of the case giving rise to this appeal are that the search had taken placed on Oswal Group cases including the assessee on 22.01.2018. Certain incriminating materials were seized during the said search operations. The relevant A.Y. was in respect of unabated assessment. The notice, dated 05.11.2019, issued under section 153A of the Act was challenged by the assessee on the reasoning that no incriminating material was seized from the assessee s premises/possession; therefore, the initiation of proceedings under section 153A of the Act were not valid in the eyes of the law. However, the AO completed the assessment taxing share capital and share premium aggregating to Rs. 1,74,00,000/- as unexplained. In appeal, the Ld. CIT(A) confirmed the addition on merit. The assessee also raised the issue of incriminating material before the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th name of the company was found at the premises. Thus, the interpretation of the word 'incriminating cannot be narrowed down in the given facts of circumstances of the case. Moreover, as per oxford dictionary, 'incriminating' means 'that seems to show that somebody has done something wrong or illegal . 8.1 'Incriminating material' can be in any form such as evidence in the nature of the following: (a) a document, content of any document; (b) an entry in books of account; (c) an asset; (d) a statement given on oath; (e) absence of any fact claimed earlier but coming to notice during search; (f) absence of books being found during search; (g) absence of the office/business premises as claimed during returns filed or any other documents;_________________________ (h) any of the documents/material seized from a different person and not from the assessee, etc. In short, any fact/evidence which could suggest that the documents/transactions claimed or submitted in any earlier proceedings were not genuine, being only a device/make belief based on non-existent facts or suppressed/misrepresented facts, fulfilling the ingredients of undisclosed income, would constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement alone in absence of any corroborative material. In support of his contention, the Ld. Counsel placed reliance on the following decisions:- i. Sh. Vikram Dhirani, 2023(4) TMI 742-ITAT Delhi, dated April 17, 2023 ii. Satish Dev Jain, Sajan Kumar Jain, 2021(3) TMI 8, dated 12.2.2021 iii. Harjeev Aggarwal, 2016(3) TMI 329, dated 10.03.2016 iv. Best Infrastructure (India) Pvt. Ltd. 2017(8) TMI 250, dated 01.08.2017 12. The Ld. CIT-DR, vide Letter No. DR/ITAT/G-Bench/2024-25/136 dated 24.09.2024, submitted as under:- 1. The above-captioned assessee appeal came up for hearing today before the Hon'ble Bench, with arguments presented by the undersigned on behalf of the Department regarding Ground No. 7, which pertains to scope of incriminating material with respect to the assessment made under Section 153A of the Income Tax Act, 1961. 2. The undersigned vehemently countered the arguments made by the Counsel of the Assessee concerning Ground No.7 of the appeal. The arguments and decisions relied upon by the counsel of the assessee were mainly to the effect that the incriminating material can only be in the form of a 'document' or 'statement'. 3. The undersigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent from the one recorded in the books or documents maintained in ordinary course of business, only when it is found to affect the veracity of the entries made in the books of the assessee and thus lead to the conclusion that the entries made regularly/maintained by the assessee do not represent true and correct state of affairs. Rather the evidence unearthed or found in the course of search would go on to show that the real transaction of the assessee was something different than what was recorded in the regular books and therefore the entries in the books did not represent true and correct state of affairs i.e. the assessee has undisclosed income/expense outside the books or that the assessee is conducting income earning activity outside the books of accounts or all the revenue earning activities are not disclosed to the tax authorities in the books regularly maintained or the returns filed with the authorities from time to time is not true etc. The nature of the evidence or information gathered during the search should be of such nature that it should not merely raise doubt or suspicion but should be of such nature which would prima facie show that the real and true nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enclosing the judgment for the Hon'ble Bench's perusal. 5. It is also humbly submitted that this Hon'ble Tribunal may please deal with the above arguments of the Department while deciding this ground of appeal in writing. 13. She, placing emphasis on the finding of CIT(A) on the issue of incriminating material, submitted that the appellant/assessee was a paper company and it never existed at its registered place. She contended that what was apparent was not real and what real was not apparent. In case the search would had not taken place in the Oswal Group of cases, the truth would have never revealed. It was contended that non-existence of the appellant/assessee was itself a crucial fact and incriminating in nature. What else was required to corroborate the fact that the appellant/assessee was a paper company and its financial details were not true. Further, the CIT-DR categorically mentioned that the Ld. Counsel failed to bring any corroboratory material on the record to contradict the finding of the CIT(A) on merit of additions. Accordingly, she prayed for dismissal of this appeal. 14. We have heard both the parties at length and have perused the material available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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