Deputy Commissioner of Income Tax, Circle- 3, Guwahati V. M/s. Satyam Ispat (North East) Limited, Banderdewa

ITA 84/GTY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6076 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M HAOKIP J
• Assessee Lawyers: RAMESH GOENKA; AMIT GOENK A
• Keywords: Bogus Share capital; Search and seizure; Additional evidence
• Section: 143(3); 153A; 32; 68; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 83 & 84 / GAU / 2017 ASSESSMENT YEARS :2006-07 & 2007-08 DCIT, CIRCLE-3 AYAKAR BHAWAN, 7 TH FLOOR, G.S. ROAD, GUWAHATI-781005 V/S . M/S SATYAM ISPAT (NORTH EAST) LTD., NH-52, BANDERWA, DIST. PAPUMPARE, ARUNACHAL PRADESH-791123 [ PAN NO.AAICS 9640 K ] /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI RAMESH GOENKA, SR. ADVOCATE & SHRI AMIT GOENKA, ADVOCATE /BY RESPONDENT SHRI M. HAOKIP, JCIT-DR /DATE OF HEARING 05-07-2019 /DATE OF PRONOUNCEMENT 02-08-2019 / O R D E R PER BENCH:- THESE TWO REVENUES APPEALS FOR ASSESSMENT YEAR(S) 2006-07 & 2007- 08 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (AP PEALS)-2 GUWAHATIS SEPARATE ORDERS ALL DATED 23.02.2017 PASSED IN CASE NO. GUWA-140, 141/2013-14, INVOLVING PROCEEDINGS U/S 143(3) R.W.S 153C OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 2 2. BOTH THE LEARNED REPRESENTATIVES ARE FAIR ENOUGH DURING THE COURSE OF HEARING THAT ALL ISSUES RAISED IN THE INSTANT APPEA L(S) ARE IDENTICAL IN NATURE EXCEPT AMOUNT VARIANCE. WE HAVE HEARD THE INSTANT LIS TOGETHER. THE SAME IS DISPOSED OF BY OUR DETAILED ADJUDICATION. 3. THE REVENUES IDENTICAL FIRST AND SECOND SUBSTAN TIVE GRIEVANCES CHALLENGE CORRECTNESS OF CIT(A)S ORDER REVERSING A SSESSING OFFICERS ACTION DELETING SHARE CAPITAL / SHARE APPLICATION MONEY OF RS.8,00,000/-, RS.1,72,41,870 IN FORMER AND LATTER CASE OF RS.10,4 3,47,500 AND RS.4,43,47,500/- (ASSESSMENT YEAR-WISE); RESPECTIVE LY VIDE FOLLOWING DETAILED DISCUSSION:- 4.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT BEFORE ME. I HAVE ALSO PERUSED THE ASSESSMENT ORDER AS WELL AS THE RE MAND REPORT SENT BY THE ASSESSING OFFICER ON THIS ISSUE. IN HIS REMAND REPO RT THE ASSESSING OFFICER HAS SIMPLY STATED THAT THE ADDITION WAS MADE ON THE BAS IS OF FINDINGS RECORDED IN THE ASSESSMENT ORDER. HE HAS FURTHER STATED THAT HE HAS NO OBJECTION TO THE ADMISSION OF ANY FRESH OR ADDITIONAL EVIDENCE IF IT IS CONSIDERE D TO BE RELEVANT FOR DISPOSAL OF THE ISSUE. APART FROM THIS, THE ASSESSING OFFICER HAS N OT GIVEN ANY COMMENT ON CERTAIN LEGAL ISSUES RAISED BY THE APPELLANT IN ITS WRITTEN SUBMISSIONS. 4.3 IN ITS WRITTEN SUBMISSIONS THE APPELLANT HAS RA ISED A LEGAL ISSUE REGARDING THE NATURE OF ADDITIONS THAT COULD BE MADE IN AN ASSESS MENT THAT IS TO BE MADE U/S.153A/153C READ WITH SECTION 143(3) OF THE INCOM E TAX ACT, 1961 IN THE CASE OF A ' NON ABATED ASSESSMENT '. ACCORDING TO THE APPELLANT IT IS NOW A WELL SETTLED PROPOSITION THAT IN RESPECT OF NON- ABATED ASSESSMENT, I.E. WHERE THE PROCEEDINGS HAVE REACHED FINALITY, THE ASSESSMENTS U/S.153A READ WITH SECTION 143(3) OF TH E ACT, HAS TO BE MADE AS WAS ORIGINALLY MADE/ASSESSED AND IN CASE WHERE CERTAIN INCRIMINATING DOCUMENTS HAVE BEEN FOUND INDICATING UNDISCLOSED INCOME, THEN THE ADDITION SHALL ONLY BE RESTRICTED TO THOSE DOCUMENTS/INCRIMINATING MATERIAL AND CLUBB ED ONLY TO THE ASSESSMENT FRAMED ORIGINALLY. IT IS SUBMITTED THAT THE APPELLA NT'S ASSESSMENT FOR THE YEAR UNDER APPEAL HAD ALREADY ATTAINED FINALITY AND HENCE IT W AS A ' NON ABATED ASSESSMENT '. HENCE, THE ADDITION SHOULD HAVE BEEN CONFINED TO AN Y INCRIMINATING MATERIAL FOUND DURING THE SEARCH. IN SUPPORT OF ITS CONTENTION, TH E APPELLANT HAS RELIED UPON THE FOLLOWING CASE LAWS:- I) ALL CARGO GLOBAL LOGISTICS LTD. V/S. DCIT (2012) 137 I.T.D. 287 (MUMBAI)(S.B.) (II) C.I.T. V/S. CONTINENTAL WAREHOUSING CORPN. (NG AVA SHEVA) LTD. (2015) 374 ITR 645 (BOM.) (III) MARIGOLD MERCHANDISE PVT. LTD. V/S. D.C.I.T. (2014)164 TTJ 448 (DELHI 'F' BENCH) (IV) JAI STEEL (INDIA) V/S. A.C.I.T. (2013) 259 CTR 281 (RAJASTHAN) ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 3 (V) A.C.I.T. V/S. PRATIBHA INDUSTRIES LTD. (2013) 1 41 I.T.D. 151 (MUMBAI) (VI) A.C.I.T. V/S. KAMAL KUMAR S. AGARWAL (2010) 13 3 TTJ 818 (NAGPUR) (VII) C.I.T. V/S. KABUL CHAWLA (2016) 380 I.T.R. 57 3 (DEL.) (VIII) JAIPURIA INFRASTRUCTURE DEVELOPERS (P) LTD. V/S. A.C.I.T. I.T.A. NOS. 5522 & 5523/DEL/2015 DECIDED BY HON'BLE ITAT, DELHI BENC H 'B', DELHI ON 27-06- 2016 (IX) PRINCIPAL C.I.T. V/S. KURELE PAPER MILLS (P) L TD. (2016) 380 I.T.R. 571 (DELHI) (SLP FILED BY THE DEPARTMENT AGAINST THIS J UDGMENT DISMISSED (2016) 380 I.T.R. ST.64) IT IS FURTHER SUBMITTED BY THE APPELLANT THAT NO IN CRIMINATING DOCUMENT/MATERIAL RELATING TO THE SHARE CAPITAL/SHARE PREMIUM WAS FOU ND AND/OR SEIZED IN THE CASE OF THE APPELLANT. THE ASSESSING OFFICER HAS NEITHER RE FERRED TO NOR RELIED UPON ANY SUCH DOCUMENT WHILE MAKING THE ASSESSMENT. 4.4 AS FAR AS MERITS OF THE CASE IS CONCERNED, THE APPELLANT HAS SUBMITTED THE FOLLOWING DOCUMENTS WITH A PRAYER UNDER RULE 46A OF THE INCOME TAX RULES 1962 FOR ADMISSION OF THESE DOCUMENTS AS ADDITIONAL EVIDENCE S: (I) CHART SHOWING NAME AND ADDRESS OF THE SHAREHOLD ERS/APPLICANTS, NO. OF SHARES APPLIED FOR/ALLOTTED FACE VALUE OF SHARES, P REMIUM PAID, MODE OF PAYMENT, PAN NO., CIN NOS. OF THE APPLICANT COMPANI ES. (II) COPIES OF THE APPELLANTS STATEMENTS WITH THE F OLLOWING BANKS SHOWING THE RECEIPT OF SHARE CAPITAL/APPLICATION MONEY: (A) HDFC BANK, H.B. ROAD, GUWAHATI (B) HDFC BANK, GUWAHATI (C) STANDARD CHARTERED BANK, GUWAHATI (III) COPIES OF MEMORANDUM & ARTICLES OF ASSOCIATIO N AND AUDITED BALANCE SHEET IN RESPECT OF CORPORATE SHAREHOLDERS/APPLICANTS. (IV) COPIES OF ANNUAL RETURN FILED BY THE APPELLANT SHOWING THE LIST OF SHAREHOLDERS. 4.5 A PERUSAL OF THE CASE LAWS RELIED UPON BY THE A PPELLANT SHOW THAT IN THE CASE OF A NON-ABATED ASSESSMENT I.E. WHERE THE ASSESSMEN T PROCEEDINGS HAVE REACHED FINALITY, THE ASSESSMENTS U/S.153A/153C READ WITH S ECTION 143(3) OF THE INCOME TAX ACT, 1961 HAS TO BE MADE AS WAS ORIGINALLY MADE/ASS ESSED AND IN CASE WHERE CERTAIN INCRIMINATING DOCUMENTS HAVE BEEN FOUND IND ICATING UNDISCLOSED INCOME, THEN THE ADDITION SHALL ONLY BE RESTRICTED TO THOSE DOCUMENT/INCRIMINATING MATERIAL AND CLUBBED TO THE ASSESSMENT MADE ORIGINALLY. THUS , THE SCOPE OF ADDITIONS TO BE MADE IN THE CASE OF A NON-ABATED ASSESSMENT IS WELL DEFINED. 4.6 IN THE CASE OF C.I.T. V/S. KABUL CHAWLA (SUPRA) , HON'BLE DELHI HIGH COURT HELD AS FOLLOWS: AT PAGE 589, 590 'SUMMARY OF THE LEGAL POSITION 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 T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUE D TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATE LY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES P LACE. ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 4 II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS I N RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A O WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSES SMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY O N THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD ASSESS' IN SECTION 153 A IS RELATABLE TO ABATE D PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. LNSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SE CTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY F OR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIA L EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' WHILE SO HOLDING, HON'BLE DELHI HIGH COURT HAS TAKE N NOTE OF THE JUDICIAL PRONOUNCEMENTS MADE IN ALL CARGO GLOBAL LOGISTICS L TD. V/S. DCIT (SUPRA), C.I.T. V/S. CONTINENTAL WAREHOUSING CORPN. (NGAVA SHEVA) L TD. (SUPRA), JAI STEEL (INDIA) V/S. ACIT (SUPRA) AND PRINCIPAL C.I.T. V/S. KURELE PAPER MILLS (P) LTD. (SUPRA) AND A NUMBER OF OTHER CASE LAWS. 4.7. IN THE CASE OF PRINCIPAL C.I.T. V/S. KURELE PA PER MILLS (P) LTD. (SUPRA), HON'BLE DELHI HIGH COURT HELD AS FOLLOWS:- AT PAGE 572 1. THE REVENUE HAS FILED THE APPEAL AGAINST AN ORD ER DATED 14.11.2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN 3761/DEL/2011 PERTAINING TO THE ASSESSMENT YEAR 2002-03. THE QUES TION WAS WHETHER THE LEARNED CIT (APPEALS) HAD ERRED IN LAW AND ON THE F ACTS IN DELETING THE ADDITION OF RS.89 LACS MADE BY THE ASSESSING OFFICE R UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 ('ACT') ON BOGUS SHARE CAPITAL . BUT, THE ISSUE WAS WHETHER THERE WAS ANY INCRIMINATING MATERIAL WHATSO EVER FOUND DURING THE SEARCH TO JUSTIFY INITIATION OF PROCEEDINGS UNDER S ECTION 153A OF THE ACT. 2.THE COURT FINDS THAT THE ORDER OF THE CIT (APPEAL S) REVEALS THAT THERE IS A FACTUAL FINDING THAT 'NO INCRIMINATING EVIDENCE REL ATED TO SHARE CAPITAL ISSUED ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 5 WAS FOUND DURING THE COURSE OF SEARCH AS IS MANIFES T FROM THE ORDER OF THE AO.' CONSEQUENTLY, IT WAS HELD THAT THE AO WAS NOT JUSTIFIED IN INVOKING SECTION 68 OF THE ACT FOR THE PURPOSES OF MAKING AD DITIONS ON ACCOUNT OF SHARE CAPITAL. 3. AS FAR AS THE ABOVE FACTS ARE CONCERNED, THERE I S NOTHING SHOWN TO THE COURT TO PERSUADE AND HOLD THAT THE ABOVE FACTUAL D ETERMINATION IS PERVERSE. CONSEQUENTLY, AFTER CONSIDERING ALL THE FACTS AND C IRCUMSTANCES OF THE CASE, THE COURT IS OF THE OPINION THAT NO SUBSTANTIAL QUE STION OF LAW ARISES IN THE IMPUGNED ORDER OF THE ITAT WHICH REQUIRES EXAMINATI ON. 4.THE APPEAL IS, ACCORDINGLY, DISMISSED.' HON'BLE SUPREME COURT HAS DISMISSED THE SPECIAL LEA VE PETITION FILED BY THE DEPARTMENT AGAINST THIS JUDGMENT AS REPORTED AT (20 16) 380 I.T.R. (ST.) 64. 5.8 IN THE CASE OF JAIPURIA INFRASTRUCTURE DEVELOPE RS (P) LTD. V/S. ACIT (I.T.A. NOS. 5522 & 5523/DEL/2015) WHICH WAS DECIDED BY HON 'BLE ITAT, BENCH 'B' DELHI ON 27-06-2016, HON'BLE TRIBUNAL HAS HELD AS FOLLOWS:- '21. HOWEVER, IN THE BACKDROP OF AFORESAID UNDISPUT ED FACTS DISCUSSED IN THE PRECEDING PARAS AND LAW LAID DOWN BY HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE CITED AS KABUL CHAWLA (SUPRA), WE ARE OF THE C ONSIDERED VIEW THAT COMPLETED ASSESSMENT INTERFERED WITH BY THE AO U/S. 153A AND CONFIRMED BY THE ID. CIT (A) ARE NOT SUSTAINABLE IN THE EYES OF LAW FOR THE FOLLOWING REASONS:- (I) THAT IN THE INSTANT CASE, UNDISPUTEDLY THE AO H AS NOT MADE ASSESSMENT ON THE BASIS OF INCRIMINATING MATERIAL U NEARTHED DURING SEARCH AND SEIZURE OPERATION CONDUCTED U/S.1 32 RATHER PROCEEDED U/S 153A OF THE ACT ON THE BASIS OF SOME PRE- SEARCH ENQUIRIES TO MAKE AN ADDITION AS HAS SPECIFI CALLY BEEN RECORDED IN PARA 6 OF THE ASSESSMENT ORDER THAT, 'P RE SEARCH ENQUIRIES REVEALED THAT MIS JAIPURIA INFRASTRUCTURE DEVELOPERS PVT. LTD., THE FLAGSHIP COMPANY INVOLVED IN THE REA L ESTATE BUSINESS OF THE S.K. JAIPURIA GROUP IS INDULGED IN INFLATING THE COST OF THE PROJECT BY DEBITING BOGUS EXPENSES BY R AISING BILLS FROM THE NON-EXISTING PARTIES OR THE ENTRY PROVIDER S.' (II) THAT THE RATIO OF THE JUDGMENT IN CASE OF KABU L CHAWLA (SUPRA) IS REQUIRED TO BE EXTRACTED BY PERUSING THE JUDGMEN T IN ENTIRETY AND NOT BY PICKING UP THE FAVOURABLE SENTENCES AND BY I GNORING THE UNFAVORABLE ONE. HIGHLIGHTED PORTION OF PARA 37 (IV ), (V), (VI) & (VII) OF KABUL CHAWLA (SUPRA) IS CRUX OF THE ISSUE INVOLVED WHICH IS APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE; (II) THAT THE RATIO OF THE JUDGMENT KABUL CHAWLA (S UPRA) IS THAT IN ALL CIRCUMSTANCES, COMPLETED ASSESSMENT CAN BE INTE RFERED WITH BY THE AO U/S 153A ONLY ON THE BASIS OF INCRIM INATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH; (IV) THAT NOT ON THIS, THE ADDITION IN THIS CASE HA S BEEN MADE BY THE AO U/S 153A ON THE SOLE GROUND THAT ASSESSEE HAS FAILE D TO PRODUCE THE PARTIES WITH WHOM THE ASSESSEE COMPANY HAS TRANSACT ED DURING THE YEAR UNDER ASSESSMENT WHO HAVE FAILED TO TURN UP DE SPITE THE ISSUE OF NOTICE U/S 133 (6) OF THE ACT; (V) THAT THE CONTENTION OF THE ID DR THAT THE ASSES SMENT QUA THE AY 2006-07 WAS PENDING AS ON DATE OF SEARCH AS MERE IS SUANCES OF ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 6 ACKNOWLEDGEMENT BY THE MINISTERIAL STAFF DOES NOT I MPLY THAT ASSESSMENT HAS BEEN COMPLETED, IS NOT TENABLE IN TH E FACE OF UNDISPUTED FACT THAT WHEN WITHIN THE PRESCRIBED PER IOD, NO NOTICE U/S 143 (2) HAS BEEN ISSUED PRIOR TO THE DATE OF SEARCH , ASSESSMENT IS DEEMED TO BE COMPLETED; (VI) THAT THERE IS NOT AN IOTA OF MATERIAL WITH THE AO TO INITIATE PROCEEDINGS U/S 153A WHAT TO TALK OF INCRIMINATING SEIZED MATERIAL; (VII) THAT THE ID. CIT (A) AFFIRMED THE ASSESSMENT ORDER BY RELYING UPON THE DECISIONS RELIED UPON BY HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE CITED AS FILATEX INDIA LTD. VS. CIT-IV - (2014 ) 49 TAXMAN.COM 465(DELHI) WHICH HAS BEEN DISTINGUISHED IN THE KABU L CHAWLA (SUPRA) ON THE GROUND THAT IN THE SAID CASE, THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH WHEREAS IN THE INSTANT CASE THERE IS ADMITTEDLY NO INCRIMINATING MATERIAL UNEARTHED DURI NG THE SEARCH TO PROCEED U/S 153A. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT WITHOUT ENTERING INTO THE MERITS OF THIS CASE, ADDITION MADE IN BOTH THE CASES U/S 153A READ WITH SECTION 143(3) IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE DELETED. CONSEQUENTLY, BOTH THE APPEALS FILED BY THE ASSESSEE ARE HEREBY, ALLOWED.' 4.9 AN ANALYSIS OF THE ABOVE CASE LAWS RELIED UPON BY THE APPELLANT CLEARLY SHOW THAT THE COMPLETED ASSESSMENTS I.E. THE NON-AB ATED ASSESSMENTS CAN BE TINKERED WITH ONLY ON THE BASIS OF ANY INCRIMINA TING MATERIAL FOUND DURING THE COURSE OF SEARCH AND NOT OTHERWISE. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE ADDITIO NS OF RS.6,69,71,870/-, RS.11,95,78,050/- AND RS.7,24,50,080/- MADE ON ACCO UNT OF SHARE CAPITAL, SHARE PREMIUM AND SHARE APPLICATION RESPECTIVELY AR E NOT SUSTAINABLE IN THE EYES OF LAW. HENCE, THESE ARE DELETED. 5. EVEN ON THE MERITS ALSO, I FIND THAT THE ADDITIO N MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. 5.1 I FIND THAT THE APPELLANT HAD SUBMITTED THE DET AILS OF SHARE CAPITAL AND SHARE PREMIUM IN COURSE OF THE ASSESSMENT PROCEEDIN GS VIDE ITS LETTER DATED 18.02.2015. THIS FACT HAS BEEN NOTED BY THE ASSESSI NG OFFICER IN PARA 11(A) OF HIS ORDER. THE APPELLANT COULD NOT SUBMIT THE DO CUMENTS IN SUPPORT OF SHARE CAPITAL/PREMIUM AS THESE WERE NOT READILY TRA CEABLE AT THE TIME OF ASSESSMENT PROCEEDINGS. THE APPELLANT HAS FURTHER C ONTENDED THAT IT WAS NOT GIVEN PROPER AND MEANINGFUL OPPORTUNITY OF BEING HE ARD TO PRODUCE THE DOCUMENTS IN SUPPORT OF SHARE CAPITAL/PREMIUM. THE APPELLANT HAS SUBMITTED BEFORE ME THE FOLLOWING DETAILS/DOCUMENTS IN SUPPOR T OF THE SHARE CAPITAL /PREMIUM: - (I) CHART SHOWING NAME & ADDRESS OF THE SHAREHOLDER S/APPLICANTS, NO. OF SHARES APPLIED FOR/ALLOTTED FACE VALUE OF SHARES, P REMIUM PAID, MODE OF PAYMENT, PAN NO., CIN NOS. OF THE APPLICANT COMP ANIES. (II) COPIES OF THE APPELLANT'S STATEMENTS WITH THE FOLLOWING BANKS SHOWING THE RECEIPT OF SHARE CAPITA [/APPLICATION MONEY: - (A) HDFC BANK, GUWAHATI ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 7 (III) COPIES OF MEMORANDUM & ARTICLES OF ASSOCIATIO N AND AUDITED BALANCE SHEETS IN RESPECT OF CORPORATE SHAREHOLDERS/APPLICA NTS, BANK STATEMENTS ETC. (IV) COPIES OF ANNUAL RETURN FILED BY THE APPELLANT SHOWING THE LIST OF SHAREHOLDERS. A PRAYER UNDER RULE 46A OF THE INCOME TAX RULES, 19 61 WAS MADE BY THE APPELLANT FOR ADMISSION OF THESE DOCUMENTS AS ADDITIONAL EVID ENCE. THESE DOCUMENTS WERE SENT TO THE ASSESSING OFFICER WHILE CALLING FOR HIS REMAND REPORT. AS STATED ABOVE, THE ASSESSING OFFICER HAS NOT OBJECTED TO THE ADMISSION OF THESE ADDITIONAL EVIDENCES. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , I ADMIT THE ADDITIONAL EVIDENCES NOW PRODUCED BY THE APPELLANT AS THESE ARE REQUIRED TO BE ADMITTED FOR DOING SUBSTANTIAL JUSTICE IN THE MATTER. 5.2 THE APPELLANT HAS FILED COMPLETE DETAILS OF SHA REHOLDER COMPANIES VIZ. - THEIR NAMES & ADDRESSES, NO. OF SHARES APPLIED FOR/ALLOTT ED, FACE VALUE OF SHARES, PREMIUM PAID, MODE OF PAYMENT, THEIR PAN NO., CIN NO., COPI ES OF MEMORANDUM & ARTICLES OF ASSOCIATION, AUDITED BALANCE SHEETS AND COPY OF RET URN OF ALLOTMENT. A PERUSAL OF THE BANK STATEMENTS FILED BY THE APPELLANT SHOW THAT AL L THE TRANSACTION HAVE TAKEN PLACE THROUGH BANKING CHANNELS. ON EXAMINATION OF THESE D ETAILS/DOCUMENTS, I DO NOT FIND ANY REASON TO DOUBT THE IDENTITY OF THE SHARE HOLDE RS, THEIR CREDIT WORTHINESS AND THE GENUINENESS OF THE TRANSACTIONS. IT IS SETTLED LAW THAT ONCE AN ASSESSEE PROVIDES DE TAILS REGARDING IDENTITY OF THE SHARE APPLICANTS/HOLDERS, THEIR PERMANENT ACCOUNT NUMBERS , BANK DETAILS, BALANCE SHEETS, A/D RECEIPT IN SUPPORT OF FILING OF INCOME TAX RETU RNS, COPIES OF MEMORANDUM & ARTICLES OF ASSOCIATION ETC., THE SHARE APPLICATION MONEY/CAPITAL CANNOT BE TREATED AS UNEXPLAINED IN THE HANDS OF THE ASSESSEE. THIS VIEW HAS BEEN TAKEN IN THE FOLLOWING CASES: (I) PRINCIPAL CIT. V/S. SOFT-LINE CREATIONS PVT. L TD. (2016) 387 ITR 636 (DELHI) (II) C.I.T. V/S. KAMDHENU STEEL & ALLOYS LTD. (2014 ) 361 ITR 220 (DELHI) (III) C.I.T. V/S. LOVELY EXPORTS PVT. LTD. (2009) 3 19 ITR (ST.) 5 (S.C.) (IV) C.I.T. V/S. SAMEER BIO-TECH PVT. LTD. (2010) 3 25 ITR 294 (DELHI) (V) C.I.T. V/S. FIVE VISION PROMOTERS PVT. LTD. (20 16) 380 ITR 289 (DELHI) (VI) C.I.T. V/S. DWARKADHISH INVESTMENT PVT. LTD. ( 2011) 330 ITR 298 (DELHI) (VII) C.I.T. V/S. DIVINE LEASING & FINANCE LTD. (20 08) 299 ITR 268 (DELHI) IN VIEW OF THE ABOVE ALSO, THE ADDITION MADE IN RES PECT OF SHARE CAPITAL AND SHARE PREMIUM CANNOT BE SUSTAINED. THIS GROUND OF APPEAL IS, THEREFORE, ALLOWED . 3. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY C ONTENDS DURING THE COURSE OF HEARING THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT SEC. 153A PROCEEDINGS ARISE ONLY IF ANY INCRIMINATI NG MATERIAL HAS BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH IN CASE OF VA RIOUS JUDICIAL PRECEDENTS. HE QUOTES E.N. GOPAKUMAR VS. CIT (2016) 75 TAXMANN.COM 215 (KER) AND CIT VS. KESARWANI ZARDA BHANDER ITA NO.270 OF 2014 (ALLHABAD) THAT SUCH AN ASSESSMENT BAR TO ASSESSEE AS THE SEARCHED ASSES SEES TOTAL TAXABLE INCOME THAN THAT BASED ON THE ALLEGED INCRIMINATING MATERIAL ONLY. WE ARE INFORMED BY BOTH PARTIES VERY FAIRLY THAT HON'BLE J URISDICTIONAL HIGH COURT IS YET ITA NO.83-84/GAU/2017 A.YS. 2006-07 & 2007-08 DCIT, CIR-3 GUWA VS. M/S SATYAM ISPAT (NE) LTD. PAGE 8 TO ADJUDICATED UPON THIS LEGAL ISSUE INVOLVING VARY ING JUDICIAL PREPOSITIONS BY HON'BLE NON-JURISDICTIONAL HIGH COURTS (SUPRA). WE THEREFORE QUOTE HON'BLE APEX COURTS LANDMARK DECISION IN CIT VS. VEGETABLE PRODUCTS (1973) 88 ITR 192(SC) TO DECIDE THIS LEGAL ISSUE IN ASSESSEES FA VOUR. WE REITERATE THAT THE SEARCH HEREIN HAD NOT YIELDED ANY INCRIMINATING MAT ERIAL AGAINST THE ASSESSEE. WE THUS AFFIRM THE CIT(A)S FINDINGS UNDER CHALLENG E ON THE FOREGOING LEGAL ISSUE. 4. THESE TWO REVENUES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(3) OF T HE ITAT RULES BY PUTTING ON NOTICE BOARD ON 02/08/2019 SD/- SD/- ( ) (&' ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP (- 02 / 08 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S SATYAM ISPAT (NORTH EAST) LTD., NH-52 , BANDERDEWA, DIST. PAPUMPARE, ARUNA CHAL PRADESH-791123 2. /REVENUE-DCIT, CIR-3, AAYAKAR BHAWAN, G.S. ROAD, 7 TH FL, GUWAHATI-781005 3. 3 4 9 / CONCERNED CIT GUWAHATI 4. 4- / CIT (A) GUWAHATI 5. < ''3, 3, 9 / DR, ITAT, GUWAHATI 6. B / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) 3,