ITO WARD -2(1), KOOLKATA V. UNICORN LAND DEVELOPERS PVT LTD, KOLKATA

ITA 688/KOL/2025

AI Insights

The case involves cross appeals by the Income Tax Officer (ITO) and Unicorn Land Developers Pvt. Ltd. against the order of the Commissioner of Income-tax (Appeals), Kolkata, which had deleted an addition of 1,15,00,000 made by the Assessing Officer (AO) on account of unexplained cash credit. The addition was based on the issuance of equity shares at a premium, which the AO deemed unexplained due to non-compliance with summons issued under section 131 of the Act. The CIT(A) reversed the AO's decision, citing the absence of incriminating material during the search and that the assessment was unabated at the time of the search. The Tribunal upheld the CIT(A)'s decision, referencing a Supreme Court decision and a similar case involving the same assessee.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 829161 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2026
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Kolkata
• Assessment Year: misc
• Appeal Filed On: 02-04-2025
• Other Referred Cases: PCIT v. Abhisar Buildwell P. Ltd. (2023) 454 ITR 212 (SC)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S.B. CHAKRABORTHY
• Assessee Lawyers: SIDDHARTH JHAJHARIA
• Keywords: Unexplained cash credit; Document seized; Documents seized
• Section: 143(3); 132; 153A; 68; 131

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM ITA No. 688/KOL/2025 (Assessment Year: 2012-13) ITO Ward 2(1) Aaykar Bhawan, P-7, Chowringhee Square, 7th Floor, Kolkata-700069, West Bengal Vs. Unicorn Land Developers Pvt. Ltd. 2A, Ganesh Chandra Avenue, 2nd Floor, Commerce House, Kolkata-700013, West Bengal (Appellant) (Respondent) PAN No. AAACU9332Q CO No. 51/KOL/2025 (Arising in Ita No. 688/KOL/2025 for A.Y. 2012-13) Unicorn Land Developers Pvt. Ltd. 2A, Ganesh Chandra Avenue, 2nd Floor, Commerce House, Kolkata-700013, West Bengal Vs. ITO Ward 2(1) Aaykar Bhawan, P-7, Chowringhee Square, 7 th Floor, Kolkata-700069, West Bengal (Appellant) (Respondent) Assessee by : Shri Siddharth Jhajharia, AR Revenue by : Shri S.B. Chakraborthy, DR Date of hearing: 25.08.2026 Date of pronouncement: 16.01.2026 O R D E R Per Rajesh Kumar, AM: These are cross appeals by the assessee and the Revenue against the order of the Commissioner of Income-tax (Appeals), Kolkata-21, (hereinafter referred to as the “Ld. CIT(A)”] dated 21.02.2025 for the AY 2012-13. Printed from counselvise.com Page | 2 ITA No. 688/KOL/2025 & CO No. 51/KOL/2025 Unicorn Land Developers Pvt. Ltd.; A.Y. 2012-13 2. The Revenue has raised the issue against the deletion of ₹1,15,00,000/- by the ld. CIT (A) as made by the ld. AO on account of unexplained cash credit u/s 68 of the Act on the basis of seized documents with ID Mark UPPL/3, being incriminating material. The assessee has filed cross objection supporting the order of ld. CIT(A). 3. The facts in brief are that a search action u/s 132 of the Income-tax Act, 1961 (the Act) was conducted on “Uniglobal Group” of cases on 09.09.2015 and subsequent dates. The assessee being a group company was also covered under the said search and notice u/s 153A of the Income-tax Act, 1961 (the Act), was issued and duly served upon the assessee. In response to the notice assessee company filed the return of income declaring total income of ₹6,49,610/- on 28.08.2017. Thereafter, the statutory notices along with questionnaire were issued and served upon the assessee. Pertinent to note that the assessee filed the original return of income on 20th August, 2012, declaring total income of ₹6,30,090/-. Assessment u/s 143(3) was framed vide order dated 02.03.2015, assessing the total income at ₹2,50,30,642/-. The assessee replied the questionnaire issued by the ld. AO with all evidences. The ld. AO on the basis of the evidences filed by the assessee and on the basis of audited accounts observed that the assessee has issued equity share of ₹10/- each at a premium of ₹40/- to various entities thereby raising ₹1,15,00,000/- during the instant financial year. The ld. AO also issued summons u/s 131 of the Act to the shareholders to ascertain the identity and creditworthiness of the subscribers and genuineness of the transactions. However, the summons was not complied with. Finally, the ld. AO added the said amount as unexplained cash credit to the income of the assessee. Printed from counselvise.com Page | 3 ITA No. 688/KOL/2025 & CO No. 51/KOL/2025 Unicorn Land Developers Pvt. Ltd.; A.Y. 2012-13 4. In the appellate proceedings, the ld. CIT (A) allowed the appeal of the assessee by relying on the decision of Hon'ble Supreme Court in case of PCIT v. Abhisar Buildwell P. Ltd. (2023)454 ITR 212(SC), by holding that this being an unabated assessment on the date of search and there being no incriminating material seized during the course of search, therefore, the ld. AO has no jurisdiction to make the addition. Accordingly, the appeal of the assessee was allowed. 5. After hearing the rival contentions and perusing the materials available on record, we find that the assessment has not abated on the date of search as the search was conducted on 09.09.2015 and on the date of search no proceedings were pending as the assessment u/s 143(3) of the Act was already framed on 02.03.2015. We note that during the course of search assessment proceedings, the ld. AO relied mainly on the books of account and evidences furnished by the assessee to make the addition and has not referred to any incriminating material seized during the search. The ld. CIT (A) appreciating the said facts correctly, deleted the addition by relying on the decision of Hon'ble Apex Court in the case of Abhisar Buildwell P. Ltd. (supra). We also note that the case is squarely covered by assessee’s own case in ITA No. 2221/KOL/2014, for A.Y. 2011-12, which was also covered in the same search vide order dated 15.01.2025, wherein the co-ordinate Bench has held as under:- “5. After hearing the rival contentions and perusing the material available on record, we find that the return of income was filed u/s 139(1) of the Act on 15.07.2011. A search action u/s 132(1) was conducted on the assessee on 09.09.2015. So, on the date of search there were no pending proceedings before the AO qua this assessment year and also that the time limit for issuing notice u/s 143(2) had already expired. Therefore, the impugned assessment was unabated on the date of search or had attained finality in terms provisions of section 153A of the Act. Now the issue before us for adjudication is whether the AO has jurisdiction to make additions without there being any incriminating Printed from counselvise.com Page | 4 ITA No. 688/KOL/2025 & CO No. 51/KOL/2025 Unicorn Land Developers Pvt. Ltd.; A.Y. 2012-13 materials seized during the search. In our opinion the addition in case of unabated assessment can only be made with reference to incriminating materials seized during search and not otherwise. We note that in the appellate order, Ld. CIT(A) has clearly recorded a finding of fact that AO has not referred to any incriminating materials found during the course of search qua the share application . Accordingly, we are in agreement with the Ld. CIT(A) that addition in case of unabated assessment year can only be made on the basis of search material found and seized during search. The case of the assessee is squarely covered by the decision of Hon’ble Supreme Courtin the case of “Pr. CIT Vs. Abhiser Buildwell (P) Ltd.” [2023] 149 taxmann.com 399 (SC), wherein the Hon’ble Supreme Court has held that in the case of nonabated/completed assessments, no addition can be made by the Assessing Officer in an assessment carried out u/s.153A of the Act in the absence of any incriminating material found during the search action which has been respectfully followed by the ld. CIT(A) while deleting the additions. The order passed by the ld. CIT(A) appears to be correct and therefore the appeal of the revenue is dismissed by upholding the order of ld. CIT(A). 6. The issues raised in the other appeal in ITA No.2222/Kol/2024 for A.Y. 2011-12 are substantially similar as decided by us in ITA No. 2221/Kol/2024 A.Y. 2011-12, therefore our decision in ITA No. 2221/Kol/2024 would apply, mutatis mutandis, to other appeal as well. Accordingly, both the appeals of the revenue are dismissed.” 5.1. We therefore respectfully following the decision of the co-ordinate Bench in assessee’s own case and also the decision of Hon'ble Apex court, dismiss the appeal of the Revenue. Since we have upheld the order of ld. CIT(A), the cross objection filed by the assessee in support of appellate order becomes infructuous and is also dismissed. 6. In the result, CO and the appeal of the Revenue are dismissed. Order pronounced in the open court on 16.01.2026. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:16.01.2026 Sudip Sarkar, Sr.PS Printed from counselvise.com Page | 5 ITA No. 688/KOL/2025 & CO No. 51/KOL/2025 Unicorn Land Developers Pvt. Ltd.; A.Y. 2012-13 Copy of the Order forwarded to: BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. Printed from counselvise.com "