M/s Greenview Land & Buildcon Pvt. Ltd., Chandigarh V. ACIT, Chandigarh

ITA 47/CHANDI/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5154 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GULSHAN RAJ
• Keywords: Search and seizure; Assessment record
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER& MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.46/CHD/2013 ASSESSMENT YEAR: 2004-05 M/S GREENVIEW LAND &BUILDCON VS. THE ACIT, CENTRAL CIRCLE-II, PVT LTD., SCO 854, NAC, CHANDIGARH MANIMAJRA, CHANDIGARH PAN NO. AACCG3524C ITA NO.47/CHD/2013 ASSESSMENT YEAR: 2006-07 M/S GREENVIEW LAND &BUILDCON VS. THE ACIT, CENTRAL CIRCLE-II, PVT LTD., SCO 854, NAC, CHANDIGARH MANIMAJRA, CHANDIGARH PAN NO. AACCG3524C ITA NO.808/CHD/2016 ASSESSMENT YEAR: 2004-05 M/S GREENVIEW LAND &BUILDCON VS. THE ACIT, CENTRAL CIRCLE-II, PVT LTD., SCO 854, NAC, CHANDIGARH MANIMAJRA, CHANDIGARH PAN NO. AACCG3524C (APPELLANT) (RESPONDENT) APPELLANT BY : SH. NEERAJ JAIN, ADVOCATE RESPONDENT BY : SH. GULSHAN RAJ, CIT DR DATE OF HEARING : 21.03.2018 DATE OF PRONOUNCEMENT: 21.03.2018 ITA NOS. 46 & 47/CHD/2013 & 808/CHD/2016 GREENVIEW LAND &BUILDCONPVT LTD.. 2 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THESE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE A GAINST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPE ALS), [HEREINAFTER REFERRED TO AS CIT(A)]-CENTRAL,GURGAON DATED 12.12 .2016 AND CIT(A)-3 GURGAON DATED 29.4.2016 2. ITA NOS. 46& 47/CHD/2013 ARE THE APPEALS FILED B Y THE ASSESSEE AGITATING THEREIN THE CONFIRMATION OF QUANTUM ADDIT IONS U/S 153A READ WITH SECTION 153COF THE INCOME-TAX ACT, 1961 (IN SHORT ' THE ACT') WHEREAS ITA NO. 808/CHD/2013 IS RELATING TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT IN RELATION TO THE QUANTUM ADDITIONSRELEVANT TO ASSESS MENT YEAR 2004-05. 3. FIRST WE TAKE UP THE APPEALS CHALLENGING THE QUA NTUMADDITIONS. ITA NO. 46/CHD/2013 FOR ASSESSMENT YEAR 2004-05 IS TAKE N AS A LEAD CASE FOR THE PURPOSE OF NARRATION OF FACTS. 4. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED AT THE PREMISES OF ONE SHRI SANDEEP BANSAL AND ALONG WITH THATA SURVEY ACTION WAS ALSO CARRIED OU T ON THE PREMISES OF THE ASSESSEE DURING THE SEARCH ON 16.1.2009. TWO AGREE MENTS SHOWING CERTAIN ADVANCE PAYMENTS MADE BY THE ASSESSEE FOR THE PURCH ASE OF CERTAIN IMMOVABLE PROPERTY WAS FOUND AND SEIZED FROM THE PR EMISES OF SHRI SANDIP BANSAL. HENCE, THE PROCEEDINGS U/S 153C OF T HE ACT WERE INITIATED IN THE CASE OF THE ASSESSEE. ACCORDINGLY, THE ASSE SSMENTS FOR SIX YEARS FROM THE DATE OF SEARCH WERE REFRAMED. DURING THE A SSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER NOTICED THAT THE ITA NOS. 46 & 47/CHD/2013 & 808/CHD/2016 GREENVIEW LAND &BUILDCONPVT LTD.. 3 ASSESSEE DURING THE YEAR HAD RECEIVED SHARE APPLICA TION MONEY AMOUNTING TO RS. 8 LACS. THE CASE OF THE ASSESSEE WAS THAT AS SESSEE HAD EXPLAINED THE SOURCES OF SAID DEPOSITS / SHARE APPLICATION MONEY WHEREAS THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCES / GENUINENESS OF THE TRANSACTIONS. HE, THEREFORE, MAD E ADDITION OF RS. 8 LACS INTO THE INCOME OF THE ASSESSEE. THE ASSESSEE UNSUC CESSFULLY CONTESTED THE APPEAL BEFORE THE CIT(A). 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS TAKE N A LEGAL GROUND THAT THE ASSESSMENTS FOR SIX YEARS PRIOR TO DATE OF SEAR CH WERE FRAMED U/S 153A READ WITH SECTION 153C OF THE ACT. HE HAS SUBMITT ED THAT SO FAR AS THE ASSESSMENTS FOR ASSESSMENT YEARS 2004-05 WAS CONCER NED, THE ORIGINAL ASSESSMENTS IN ALREADY STOOD COMPETED AS ON THE DAT E OF SEARCH. HE HAS INVITED OUR ATTENTION TO THE ASSESSMENT RECORD AND HAS SUBMITTED THAT FOR ASSESSMENT YEAR 2004-05, THE RETURN OF INCOME WAS F URNISHED ON 31.10.2004. THE NOTICE U/S 143(2) OF THE ACT COULD HAVE BEEN ISSUED BY THE ASSESSING OFFICER UP TO 31.10.2005. HOWEVER, T HE SEARCH ACTION IN THE PREMISES OF SHRI SANDEEP BANSAL WAS CARRIED ON OUT 16.1.2009 AND AS EXPLAINED ABOVE, NO INCRIMINATING MATERIAL RELATING TO THE SHARE APPLICATION MONEY WAS FOUND DURING THE SEARCH ACTION. THE LD. C OUNSEL HAS FURTHER INVITED OUR ATTENTION TO THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2009-10 TO SHOW THAT EVEN FOR THE SEARCHED YEAR, NO ADDITIO N HAD BEEN MADE INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF SHARE APPLICAT ION MONEY. THE LD. COUNSEL, THEREFORE, RELIED UPON THE DECISIONS OF TH E HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS PVT LTD, (2014) 49 TAXMAN.COM 172 (BOM.), ITA NO.36 OF 2009 AND IN THE CASE OF CIT VS. ITA NOS. 46 & 47/CHD/2013 & 808/CHD/2016 GREENVIEW LAND &BUILDCONPVT LTD.. 4 CONTINENTAL WAREHOUSING CORPORATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AND ON THE CASE OF HON 'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 234 TAX MAN 300 (DELHI) AND SUBSEQUENT DECISION OF THE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETAGUTGUTIA PROP M/S FERNS N PETALS, ITA 3 06/2017 AND OTHERS DECIDED VIDE ORDER DATED 25.5.2017, AND HAS SUBMITT ED THAT SINCE THE ORIGINAL ASSESSMENT FOR THE AFORESAID YEARS STOOD COMPLETED AS ON THE DATE OF SEARCH AND NO INCRIMINATING MATERIAL WAS FOUND S O FAR AS THE ASSESSMENT YEARS UNDER CONSIDERATION WERE CONCERNED, HENCE, TH E ASSESSING OFFICER WAS PRECLUDED FROM MAKING ANY ADDITION OR OPENING U P AN ISSUE, IN RELATION TO ALREADY CONCLUDED ASSESSMENT PROCEEDINGS. 6. THE LD. DR, ON THE OTHER HAND, HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES AND HAS SUBMITTED THAT THE ADDITI ONS HAVE BEEN RIGHTLY MADE BY THE LOWER AUTHORITIES INTO THE INCOME OF TH E ASSESSEE FOR THE AFORESAID ASSESSMENT YEARS. 7. WE HAVE HEARD THE RIVAL CONTENTIONS. ADMITTEDLY, THE ASSESSMENT FOR THE AFORESAID ASSESSMENT YEARS 2004-05 STOOD COMPLE TED ON THE DATE OF SEARCH. NO INCRIMINATING MATERIAL WHATSOEVER INRELA TION TO THE SHARE APPLICATION MONEY WAS FOUND EITHER RELEVANT TO ASSE SSMENT YEAR SEARCHED I.E. FOR ASSESSMENT YEAR 2009-10 OR IN RELATION TO THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2004-05. EVEN NO ADDITIONS HAVE BEEN MADE IN THESEARCHED YEAR ON ACCOUNT OF ANY SHA RE APPLICATION MONEY. IT HAS BEEN TIME AND AGAIN HELD BY THE VARIOUS HI GH COURTS THAT IF NO INCRIMINATING MATERIAL IS FOUND DURING THE SEARCH A CTION, THE ADDITION IN THE CASE OF ALREADY CONCLUDED ASSESSMENT CANNOT BE MADE WHILE FRAMING ITA NOS. 46 & 47/CHD/2013 & 808/CHD/2016 GREENVIEW LAND &BUILDCONPVT LTD.. 5 ASSESSMENT U/S 153A OF THE ACT. RELIANCE IN THIS RE SPECT CAN BE PLACED IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPO RATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AN D OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAW LA 234 TAXMAN 300 (DELHI). 8. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARE LY COVERED BY THE AFORESAID DECISIONS. THE AFORESAID DECISIONS HAVE B EEN FURTHER AFFIRMED BY THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETAGUTGUTIA PROP M/S FERNS N PETALS, ITA 306/2 017 AND OTHERS DECIDED VIDE ORDER DATED 25.5.2017. THE AFORESAID C ASE LAWS CAN BE WELL APPLIED TO THE FACTS AND CIRCUMSTANCES OF THE CASE IN HAND. IN VIEW OF THIS, WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE LOWER AUTHORITIES FOR MAKING ADDITIONS ON ACCOUNT OF SHARE APPLICATION MO NEY SO FAR AS THE ASSESSMENT YEAR 2004-05 IS CONCERNED. 9. AS FAR AS THE ASSESSMENT YEAR 2006-07 IS CONCER NED, THE LD. COUNSEL FOR THE ASSESSEE HAS EXPLAINED THAT IN THE SAID ASS ESSMENT YEAR, THE ADDITIONS HAVE BEEN MADE AT RS. 54,000/- AND 7,50,0 00/- U/S 40(A)(IA) OF THE ACT AND THAT THE SAID ISSUE HAS NO RELATION TO ANY INCRIMINATING MATERIAL FOUND DURING SEARCH ACTION. THAT FOR ASSESSMENT YEAR 2006-07, THE RETURN WAS FURNISHED ON 30.11.2006. THE NOTICE U/S 143(2) COULD HAVE BEEN ISSUED BY THE ASSESSING OFFICER ON 30.11.2007 WHERE AS THE SEARCH ACTION WAS CARRIED OUT ON 16.1.2009 . HENCE, THE ASSESSMENT FOR ASSESSMENT YEAR 2006-07 STOOD COMPLETED ON THE DATE OF SEARCH AND N O INCRIMINATING MATERIAL WAS FOUND DURING SEARCH ACTION AT THE PREM ISES OF SHRI SANDEEP BANSAL IN THIS RESPECT. IN VIEW OF OUR FINDINGS GIV EN ABOVE, THE ADDITIONS ITA NOS. 46 & 47/CHD/2013 & 808/CHD/2016 GREENVIEW LAND &BUILDCONPVT LTD.. 6 MADE BY THE ASSESSING OFFICER WHILE FRAMING ASSESSM ENT U/S 153A READ WITH SECTION 153C ARE NOT SUSTAINABLE IN THE EYES O F LAW SO FAR AS THE ASSESSMENT YEAR 2006-07 IS CONCERNED. 10. NOW COMING TO ITA NO. 808/CHD/2016, WHICH IS IN RELATION TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ON THE BASIS AD DITION MADE INTO THE INCOME OF THE ASSESSEE FOR ASSESSMENT YEAR 2004-05. SINCE, IN VIEW OF FINDINGS GIVEN ABOVE, WE HAVE ALREADY DELETED THE Q UANTUM ADDITION FOR THE ASSESSMENT YEAR 2004-05, HENCE, THE IMPUGNED PE NALTY LEVIED U/S 271(1)(C) OF THE ACT HAS NO LEGS TO STAND, THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. IN VIEW OF THIS, THE CAPTIONED APPEALS OF THE ASSES SEE ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21.03.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR