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TMI Blog2025 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... THE IT ACT, 1961 OF Rs. 73,17,110/-. 5. THAT THE APPELLANT HAS RIGHTLY CLAIMED THE GAIN FROM SALE OF SECURITUES AS LONG TERM CAPITAL GAIN UNDER THE RELEVANT SECTION 10(38) OF THE IT ACT, 1961. 6. THAT THE ALLEGED BOGUS SHARE TRANSACTION CANNOT BE TAXED U/S 69 AS THE APPELLANT HAS GIVEN THE DOCUMENTARY EVIDENCE OF SALE AND PURCHASE AT PREVAILING MARKET RATE ON STOCK EXCHANGE. 7- THAT THERE HAS BEEN NO EVIDENCE AS TO THE WHY THE GAIN FROM THE SALE OF SECURITIES BE TREATED AS UNEXPLAINED WS 69 OF THE ACT WHEN THE TRANSACTION HAS BEEN EXPLAINED BY COMPLETE DOCUMENTARY EVIDENCE AND ACCORDINGLY SHOWN U/S 10(38) OF THE ACT BEING GAIN FROM SALE OF SECURITIES TRANSACTION AND PRIMARY ONUS CASTED UPON THE APPELLANT HAS BEEN DISCHARGED. 8- THAT THE LD.CIT(A) AND LD.AO HAS FAILED TO ESTABLISH ANY NEXUS OR MATERIAL EVIDENCE TO ESTABLISH THE ALLEGED INVOLVEMENT OF APPEALLANT OTHER THAN BEING MERELY AN INVESTOR. 9- THAT THE TRANSACTION CANNOT BE DOUBTED AND BURDENED UPON THE APPELLANT WHEN THE PURCHASE AND SALE OF THE SHARES WHICH HAS BEEN TRADED ON EXCHANGE AT PREVAILING MARKET RATE AND DULY DISCLOSED BY THE DOCUMENT AND NOT BARRED BY THE SEBI. MOREOVER WHEN NO COLLUSION HAS BEEN ESTAB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see was rejected vide letter dated 16.10.2018 of the Assessing Officer, relying on the aforesaid case of Rajkumar Arora (supra). 2.1 During the appellate proceedings in ITAT, two paper books containing the following particulars were filed from the assessee's side: - SI No Particulars 1 Copy of status of return for the A.Y. 2014-15 on the Income tax Portal 2 Copy of written submission filed before the Ld. Commissioner of Income Tax (Appeals)-IV, Kanpur dated 28.02.2020 3 Copy of Demat Account for the period of 01.04.2013 to 31.03.2014 4 Copy of ledger account of UPSE Securities in the books of Shiv Kumar Paliwal for the period of 01.04.2013 to 31.03.2014 5 Copy of Bank statement of Shiv Kumar Paliwal for the period of 01.07.2013 to 17.04.2014 6 Copy of UPSE Securities Statement 7 Copy of Contract Note 8 Copy of Demat Account for the period of 01.07.2012 to 31.07.2012 9 Copy of ledger account of UPSE Securities in the books of Shiv Kumar Paliwal for the period of 01.04.2011 to 31.03.2012 10 Copy of Bank statement of Shiv Kumar Paliwal for the period of 01.04.2011 to 17.04.2012 11 Copy of ITR-V along with Computation of income for the A.Y. 2014-15. 12 Copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending in the cases of the assessee at the time of search conducted on 08/07/2016 in the case of the assessee, u/s 132 of the IT Act. Further, as no assessment proceedings were pending at the time of search & seizure operation u/s 132 of the Act on 08/07/2016, the case of the assessee falls in the category of unabated/completed assessments within the meaning of orders passed by Hon'ble Supreme Court in the cases of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra) and within the meaning of order passed in the case of Kabul Chawla 380 ITR 573 (Delhi), which stands approved by Hon'ble Supreme Court by dint of orders of Hon'ble Supreme Court in the case of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra). Further, in paragraph 14 of the aforesaid order of Hon'ble Supreme Court in the case of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra), the Hon'ble Supreme Court concluded as under: "14. In view of the above and for the reasons stated above, it is concluded as under: (i) that in case of search under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147/148 of the IT Act. Thus, although the powers of the Assessing Officer u/s 147/148 of the IT Act were saved by Hon'ble Supreme Court in the cases of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra), subject to fulfillment of conditions envisaged u/s 147/148 of the IT Act; it has been categorically held that in respect of completed/unabated assessments, no additions can be made u/s 153A or under section 153C of the Act if incriminating material was not found / unearthed during the course of search u/s 132 of the IT Act in respect of the additions made. (C.2) The issue whether additions can be made in assessment orders passed u/s 153A or u/s 153C of IT Act in cases falling under unabated/completed assessments, when no incriminating material was found at the time of search u/s 132 of the IT Act, was a disputed issue in the past. While a view in favour of assessee was taken, for example, in cases such as CIT vs. Kabul Chawla (supra), Pr. CIT vs. Saumya Construction 387 ITR 523 (Guj), CIT vs. Continental Warehousing 374 ITR 645 (Bom.), Smt. Jami Nirmala vs. Pr.CIT 437 ITR 673 (Orissa), CIT vs. Veerprabhu Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra) and by the aforesaid instruction No. 1 of 2023 of CBDT, which is binding on Revenue authorities. Accordingly, we direct the Assessing Officer to delete the additions made amounting to a total of Rs. 2,24,81,900/- for assessment year 2015-16 and addition amounting to Rs. 44,25,000/- for assessment year 2016-17. (C.2.2) Since we have directed that the aforesaid additions be deleted, the other issues regarding merits of the additions made in the aforesaid two years, become merely academic in nature and do not require any adjudication. Therefore, we decline to make any order with regard to the merits of the various additions made." 3. In view of the foregoing, and respectfully following the orders of the Hon'ble Supreme Court in the cases of Abhisar Buildwell (P.) Ltd (supra) and DCIT vs U.K. Paints (Overseas) Ltd (2023) 150 Taxmann.com 108 (SC), and further relying instruction of Central Board of Direct Taxes (CBDT) [Instruction No.1 of 2023 (F. No.279/Misc./M-54/2023-IT)] directing the field authorities to implement the aforesaid orders of Hon'ble Supreme Court in the cases o ..... 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