ITO, WARD -13(1), KOLKATA, KOLKATA V. ADHIRA VINICOM PVT. LTD., HOWRAH

ITSSA 128/KOL/2024

AI Insights

The case involves appeals by the Revenue against Adhira Vinicom Pvt. Ltd. concerning the assessment years 2012-13 and 2013-14. The primary issue was the deletion of an addition of \\u20b950 crore by the Commissioner of Income-tax (Appeals), which had been initially made by the Assessing Officer under section 68 of the Income Tax Act, relating to unexplained share capital and share premium. The Tribunal noted that the assessments were unabated at the time of the search, and no incriminating material was found during the search operation. The Tribunal relied on the decision of the Hon'ble Apex Court in PCIT v. Abhisar Buildwell P. Ltd. to conclude that the additions made by the Assessing Officer were not permissible in the absence of any incriminating material.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474021 (ITAT-KOLKATA)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-02-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Other Referred Cases: PCIT v. Abhisar Buildwell P. Ltd. (2023)454 ITR 212(SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHENDU DATTA
• Keywords: Bogus Share capital
• Section: 143(2); 153A; 68; 133(6)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM IT(SS)A Nos. 128 & 129/KOL/2024 (Assessment Years:2012-13 & 2013-14) ITO, Ward-13(1), Office of the ITO, Ward-13(1), Aaykar Bhavan Poorva, 7 th Floor, 110 Shantipally, E.M. Bypass, Kolkata-700107, West Bengal Vs. Adhira vinicom Pvt. Ltd. 52/1, 2nd Floor, Sanatan Mistry Lane, Near Oriya para Mandir, Howrah-711011, West Bengal (Appellant) (Respondent) PAN No. AAHCA4935E Assessee by : None Revenue by : Shri Subhendu Datta, DR Date of hearing: 10.02.2025 Date of pronouncement : 24.02.2025 O R D E R Per Rajesh Kumar, AM: These are appeals preferred by the Revenue against the orders of the Commissioner of Income-tax (Appeals) (hereinafter referred to as the “Ld. CIT(A)”] even dated 05.03.2024 for the AYs 2012-13 & 2013-14. 02. At the outset, we note that there is a delay in filing the appeal by the Revenue by 160 days in A.Y. 2012-13 and 159 days in A.Y. 2013-14 for which the Revenue has filed condonation petitions. In the condonation petitions, the Revenue has stated that the delay in filing the appeal was on account of time taken in taking administrative approvals and therefore, may be condoned. After considering the rival contentions and the reasons stated in the condonation petition, we Page | 2 IT(SS)A Nos. 128 & 129/KOL/2024 Adhira vinocom Pvt. ltd.; A.Ys. 2012-13 & 13-14 find that the delay in filing the appeals is for genuine and bonafide reasons and accordingly, the same is condoned by admitting the appeals for adjudication. 128/KOL/2024 for A.Y. 2012-13 03. The only issue raised by the Revenue is against the deletion of addition of ₹5 crore by the ld. CIT (A) as made by the ld. AO u/s 68 of the Act in respect of unexplained share capital and share premium. 04. The facts in brief are that the search action u/s 133 of the Act was conducted on the business and residential premises of M/s Devkabai Velji group of cases and key personnel located at Ranchi on 20.11.2015 and subsequent dates and the case of the assessee was also covered in the search as it belonged to some group. The notice u/s 153A of the Act was issued on 18.08.2017, which was duly served upon the assessee and in compliance the assessee filed the return of income on 29.0.2017, declaring total income of ₹(-) 16,328/-. Thereafter the statutory notices were issued along with questionnaire and duly served upon the assessee. In compliance, the assessee filed various documents / details before the ld. AO from time to time. Thereafter the ld. AO framed the assessment by making addition of ₹5 crores on account of share capital/ share premium on the basis of information contained in the balance sheet of the assessee which reveals that during the instant financial year, the assessee received share capital/ share premium amounting to ₹5 crores. The ld. AO also issued notice u/s 133(6) of the Act to various subscribers and the ld. AO stated that the subscribers furnished incomplete reply. 05. In the appellate proceedings, the ld. CIT (A) allowed the appeal of the assessee by following the decision of Hon'ble Apex Court in the case of Page | 3 IT(SS)A Nos. 128 & 129/KOL/2024 Adhira vinocom Pvt. ltd.; A.Ys. 2012-13 & 13-14 PCIT v. Abhisar Buildwell P. Ltd. (2023)454 ITR 212(SC) on the ground that this being unabated assessment on the date of search and there was no incriminating material found during the course of search. 06. After hearing the rival contentions and perusing the materials available on record, we find that the instant assessment year was unabated assessment on the date of search and also time limit to issue notice us/ 143(2) of the Act had also expired. We note that during the course of search no incriminating material was found qua the share capital/ share premium collected by the assessee during the impugned financial year and the ld. AO has only, on the basis of information contained in the balance sheet filed by the assessee ,initiated the enquiries and called for information from the assessee besides issuing notice u/s 133(6) of the Act to the subscribers also which were duly replied by them. However, the ld. AO noted that the replies were incomplete. In our opinion the ld. AO has no jurisdiction to make any addition(s) in an unabated assessment where there is no seized incriminating material supporting the additions. In the present case the ld. CIT (A) has rightly appreciated the factual matrix that there was no incriminating material found during the course of search and the ld. AO relied only on the documents filed by the assessee to make the additions. Accordingly, we do not find any infirmity in the order of the ld. CIT (A) which has been passed after following the decision of Hon'ble Apex Court in the case of PCIT v. Abhisar Buildwell P. Ltd. (supra). Accordingly, we dismiss the appeal of the Revenue by upholding the order of the appellate order. 129/KOL/2024 for A.Y. 2013-14 07. The issue raised in this appeal is similar to one as decided by us in IT(SS)A No. 128/KOL/2024 for A.Y. 2012-13. Accordingly, our Page | 4 IT(SS)A Nos. 128 & 129/KOL/2024 Adhira vinocom Pvt. ltd.; A.Ys. 2012-13 & 13-14 decision would apply mutatis mutandis to this appeal of revenue in IT(SS)A No.129/KOL/2024 for A.Y. 2013-14. Hence, the appeal of Revenue in IT(SS)A No. 129/KOL/2024 is dismissed. 08. In the result, both the appeals of the Revenue are dismissed. Order pronounced in the open court on 24.02.2025. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 24.02.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "