M/s. A One Infra Projects Pvt. Ltd., , Raniganj V. DCIT, Central Circle - 4(3), , Kolkata

ITSSA 91/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4385 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 14-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Accommodation entries
• Section: 153A; 131; 68; 132; 139

Judgement Text

I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.(S.S.)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED,............ .............................APPELLANT A/67, BY LANE GURU TEJ BAHADUR MARG, NSB ROAD, SCHOOL MORE, RANIGANJ, WEST BENGAL-713 347 [PAN: AAHCA 2642 N] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,...... .........RESPONDENT CENTRAL CIRCLE-4(3), KOLKATA APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, FOR THE APPELLANT SHRI A.K. NAYAK, CIT (D.R.), FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MARCH 25, 2019 DATE OF PRONOUNCING THE ORDER : MAY 10, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 27.07.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.15,00,000/- MADE BY THE ASSESSING OFFICER AND CO NFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION BY TRE ATING THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INC OME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH BELONGS TO BHALOTIA GROUP. A SEARCH AND SEIZURE ACTION UNDER S ECTION 132 WAS CONDUCTED ON 01.12.2015 IN THE CASES BELONGING TO B HALOTIA GROUP INCLUDING THE CASE OF THE ASSESSEE. IN PURSUANT TO THE SAID ACTION, NOTICE UNDER SECTION 153A WAS ISSUED BY THE ASSESSING OFFI CER, IN RESPONSE TO WHICH THE RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION WAS FILED BY I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 2 THE ASSESSEE ON 15.02.2017 DECLARING THE SAME TOTAL INCOME OF RS.59,660/- AS DECLARED IN THE RETURN OF INCOME ORI GINALLY FILED ON 29.12.2012 UNDER SECTION 139 OF THE ACT. DURING THE COURSE OF SEARCH AND SEIZURE ACTION, CERTAIN BANK ACCOUNTS WERE FOUND WH ICH REVEALED THAT THE ASSESSEE-COMPANY HAD RECEIVED SHARE APPLICATION MON EY OF RS.15,00,000/- DURING THE YEAR UNDER CONSIDERATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPO N BY THE ASSESSING OFFICER TO PROVE THE IDENTITY AND CAPACITY OF THE C ONCERNED SHARE APPLICANTS AS WELL AS THE GENUINENESS OF THE RELEVA NT TRANSACTIONS. NOTICES UNDER SECTION 131 WERE ALSO ISSUED BY THE A SSESSING OFFICER TO THE SHARE SUBSCRIBERS FOR CROSS EXAMINATION. THE SA ID NOTICES, HOWEVER, EITHER RETURNED UN-SERVED OR REMAINED UN-COMPLIED W ITH. THE ASSESSEE ALSO COULD NOT PRODUCE THE CONCERNED SHARE APPLICAN TS FOR EXAMINATION BEFORE THE ASSESSING OFFICER WHEN AN OPPORTUNITY IN THIS REGARD WAS GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER. IN THE WR ITTEN SUBMISSION MADE ON 22.12.2017, IT WAS STATED BY THE ASSESSEE THAT T HE CONCERNED SHARE APPLICANTS COULD NOT APPEAR BEFORE THE ASSESSING OF FICER BECAUSE OF SOME INCONVENIENCE. IT WAS ALSO SUBMITTED THAT THE TRANS ACTIONS INVOLVING THE PAYMENT OF SHARE APPLICATION MONEY WERE ROUTED THRO UGH BANKING CHANNEL AND THE COPIES OF BANK STATEMENTS OF SHARE APPLICANTS WERE PRODUCED BEFORE THE ASSESSING OFFICER TO SUPPORT AN D SUBSTANTIATE THE SAID SUBMISSION. IT WAS FURTHER SUBMITTED BY THE AS SESSEE THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE O F SEARCH, WHICH COULD SHOW THAT THE TRANSACTIONS INVOLVING RECEIPT OF SHA RE APPLICATION MONEY WERE NOT GENUINE. THESE SUBMISSIONS MADE BY THE ASS ESSEE WERE NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER FOR THE F OLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER:- (I) MERE FILING OF DOCUMENTS THAT THE TRANSACTIONS WERE ROUTED THROUGH BANKING CHANNELS WOULD NOT SUFFICE T O PROVE THE GENUINENESS OF THE TRANSACTIONS. A TRANSACTION, PRIMA FACIA, MAY APPEAR GENUINE. BUT ONE SHOULD HAVE TO UNDERSTAND THE MOTIVE BEHIND SUCH TRANSACTIONS. I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 3 (II) THE ASSESSEE COMPANY HAD NO BUSINESS OR INCOME GENERATION ACTIVITY IN THE YEAR UNDER CONSIDERATION AS WELL AS THE PRECEDING YEARS. (III) NO ANSWER HAS BEEN GIVEN BY THE ASSESSEE TO T HE QUESTION WHY THE SUBSCRIBERS HAVE PAID MONEY FOR TH E EQUITIES OF A CLOSELY HELD COMPANY THAT HAD LITTLE INCOME GENERATION ACTIVITY AND THAT TOO AT A PREMIUM OF UP TO RS.90/- PER SHARE. (IV) THE SHARE SUBSCRIBERS HAVE ALSO FAILED TO REPL Y WHY THEY HAD INVESTED IN THE EQUITIES OF THE ASSESSEE COMPAN Y AT A HIGH PREMIUM OF UP TO RS.90/- PER SHARE. (V) NO PRUDENT PERSON WOULD PUT HIS MONEY AT STAKE IN THE EQUITIES OF A CLOSELY HELD COMPANY WHICH HAD LITTLE BUSINESS ACTIVITY AND FROM WHICH HE WOULD GET NO RETURN. (VI) IN SUCH CASES, THE AGREEMENT ABOUT REAL TRANSA CTIONS TAKES PLACE IN SECRET AND DIRECT EVIDENCE ABOUT SUC H DIRECT TRANSACTION/AGREEMENT WOULD NOT BE AVAILABLE TO THE DEPARTMENT IN NORMAL CIRCUMSTANCES. (VII) THE RESULT OF THESE TRANSACTIONS ARE DESIGNED IN A WAY THAT UNACCOUNTED MONEY OR CASH WAS BROUGHT IN THE B OOKS OF THE ASSESSEE COMPANY EITHER IN THE FORM OF EQUITIES OR UNSECURED LOAN THROUGH MULTIPLE LAYERS. (VIII] EVERY SINGLE CREDIT ENTRY IN THE BANK ACCOUN TS OF THE SHARE SUBSCRIBERS IS FOLLOWED BY A CORRESPONDING DE BIT ENTRY OF EQUIVALENT AMOUNT ON THE VERY SAME DAY. THE ASSE SSEE HAS CONTENDED THAT THIS ISSUE IS IRRELEVANT. BUT THIS I SSUE IS VERY MUCH RELEVANT. THIS ISSUE COUPLED WITH THE FACT THA T ALL THE SHAREHOLDER COMPANIES HAD MEAGRE INCOME, CLEARLY PR OVES THAT THESE COMPANIES WERE MERELY USED AS FRONTS TO ROUTE UNACCOUNTED MONEY OF THE ASSESSEE IN THE GARB OF EQ UITIES THROUGH MULTIPLE LAYERS, (IX) MERE FILING OF COPIES OF ITRS / BANK STATEMENT S/ ACCOUNTS OF THE SUBSCRIBERS WOULD NOT ABSOLVE THE A SSESSEE FROM THE COMPLICITY OF INTRODUCING UNACCOUNTED MONE Y IN HIS BOOKS IN THE GARB OF EQUITIES. (X) THE ASSESSEE WAS GIVEN REASONABLE AND SUFFICIEN T OPPORTUNITIES TO PRODUCE ALL THE SHAREHOLDERS, WHIC H HE FAILED TO DO. THE ASSESSEE HAD FAILED TO EXPLAIN TH E INCONVENIENCE IN PRODUCING THE SHARE A PPLICANTS FO R VERIFICATION OF GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE APPLICANTS. (XI) IT IS TRUE THAT WHEN TRANSACTIONS ARE THROUGH CHEQUES, IT LOOKS LIKE REAL TRANSACTIONS. BUT ONE SHOULD LOOK B EHIND THE I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 4 TRANSACTIONS AND FIND OUT MOTIVE BEHIND TRANSACTION S, MERE RECEIPT OF SHARE APPLICATION MONEY, THROUGH CHEQUE DOES NOT RENDER A TRANSACTION GENUINE. (XII) THE ASSESSEE HAS NOT EXPLAINED THE REASONS FO R NON- SERVICE OF LETTERS/SUMMONS TO THE SHAREHOLDING COMP ANIES WHICH WERE DESPATCHED AT THEIR REGISTERED OFFICE. I T SHOWS THAT THESE COMPANIES ONLY EXIST ON PAPER AND THEY H AVE NO BUSINESS ACTIVITY AT ALL. IT RAISED QUESTION MARK O VER THE GENUINENESS OF THE TRANSACTIONS AND CREDITWORTHINES S OF THE SHAREHOLDERS, (XIII) THE ASSESSEE WAS GIVEN A REASONABLE AND FAIR OPPORTUNITY TO PRODUCE THE SHAREHOLDERS, BUT HE HAS FAILED TO PRODUCE ANY OF THEM CITING INCONVENIENCE. THE ASSES SEE HAS NOT EXPLAINED WHAT INCONVENIENCE IT WOULD HAVE IN P RODUCING THE SHARE APPLICANTS. THE ASSESSEE HAS THEREFORE, F AILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDERS. (XIV) THE SHARE APPLICANTS/ SHARE HOLDERS M/S BGS C REDIT PVT. LID., M/S. SUBHRASHI DEALCOM PVT. LTD., M/S. T OPLAKE COMMERCIAL PVT. LTD. AND M/S. YASH COMMOSALES PVT. LTD. HAVE BEEN IDENTIFIED US SHELL COMPANIES BY THE INVE STIGATION WING OF THE DEPARTMENT. FOR THE REASONS GIVEN ABOVE, THE ASSESSING OFFICER HELD THAT THE SHARE APPLICATION MONEY OF RS.15,00,000/- RECEIVED DURING THE YEAR UNDER CONSIDERATION WAS NOT SATISFACTORILY EXPLAINED BY T HE ASSESSEE IN TERMS OF SECTION 68 AND AN ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SHARE APPLIC ATION MONEY AS UNEXPLAINED CASH CREDIT IN THE ASSESSMENT COMPLETED UNDER SECTION 153A/143(3) OF THE ACT VIDE AN ORDER DATED 27.12.20 17. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 153A/143(3), AN APPEAL WAS FILED BY THE ASSESSEE BE FORE THE LD. CIT(APPEALS) AND SINCE THE SUBMISSIONS MADE BY THE ASSESSEE IN SUPPORT OF ITS CASE THAT THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 WAS NOT SUSTAINABLE, WERE NOT FOUND ACCEPTABLE B Y THE LD. CIT(APPEALS), HE PROCEEDED TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68, INTER ALIA, FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER:- I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 5 I HAVE CAREFULLY CONSIDERED THE ACTION OF THE LD. AO IN MAKING AN ADDITION OF RS.15,00,000/-, AS UNEXPLAINED CREDI T U/S 68 OF THE INCOME TAX ACT, 1961. AFTER AN EXHAUSTIVE DISCU SSION AND ELABORATING THE FACTUAL AND LEGAL MATRIX, I FIND TH AT THE LD. AO HAS HELD THAT THE CLAIM OF THE APPELLANT OF HAVI NG RAISED SHARE APPLICATION MONIES WAS TO BE DENIED TO THE AS SESSEE- COMPANY, AND WAS TO BE ASSESSED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I T ACT. THE LD. AO HAS PLACED ON REC ORD THE ENTIRE GAMUT OF FINDINGS, AND THERE IS, IN MY CONSI DERED VIEW NO FURTHER REQUIREMENT FOR ELABORATION FROM THIS FO RUM. IN VIEW OF THE FACTS THERE ARE ELABORATE AND DIRECT EV IDENCE TO CLEARLY INDICATE THAT AT THE ENTIRE TRANSACTIONS UN DERTAKEN BY THE APPELLANT WERE MERELY ACCOMMODATION ENTRIES TAK EN FOR THE PURPOSE OF FIVING A LEGAL FACADE TO THE MONEYS WHICH WERE ENTERING THE APPELLANT'S BOOKS OF ACCOUNTS IN THE G RAB OF SHARE APPLICATION MONEY. I ALSO AGREE WITH THE LD. AO THAT THE FINDINGS OF THE ASSESSMENT WERE BASED ON INCRIMINAT ING DOCUMENTS AS THE ENTIRE MODUS OPERANDI OF THE ACTIV ITIES OF THE ASSESSEE-COMPANY WAS LOCATED ON THE BASIS OF TH E SEARCH ACTION, AND THEREFORE THE FINDINGS OF THE LD. AO AR E ALSO BASED ON INCRIMINATING DETAILS FOUND DURING THE COURSE OF THE SEARCH OPERATION. THEREFORE NONE OF THE JUDICIAL PRECEDENT S RELIED UPON BY THE APPELLANT IN SO FAR AS STATING THAT NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURS E OF THE SEARCH TO WARRANT ANY ADDITIONS COME TO THE ASSISTA NCE OF THE APPELLANT. THESE ARGUMENTS ARE ACCORDINGLY REJECTED . I ALSO HAVE TO RECORD THAT THE FACTUAL MATRIX OF TH E CASE CLEARLY POINTS OUT THAT THE CONTRIBUTIONS RECEIVED BY THE ASSESSEE-COMPANY FROM THE CONTRIBUTORS OF SHARE CAPITAL/SHARE PREMIUM WERE FROM PERSONS WHO DID NOT HAVE THE MEANS TO BE CREDITWORTHY, AND COULD NOT ESTABLI SH THEIR CREDITWORTHINESS. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(APPEALS) IN CONFIRMING THE ADDITION OF RS.15,00 ,000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 153A IN CASE OF THE UNABATED ASSESSMENT WHEN NO INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH. IN SUPPORT OF THIS GROUND, THE LD. COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS REGULARLY FILED BY THE ASSESSEE UNDER SECTION 139 ON 29.12.2012 AND SI NCE NO NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE ASSESSING OFFICER WITHIN THE PRESCRIBED TIME LIMIT, WHICH ENDED ON 30.09.2013, THE ASSESSME NT FOR THE YEAR UNDER I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 6 CONSIDERATION HAD BECOME FINAL BEFORE THE DATE OF S EARCH I.E. 01.12.2015. HE CONTENDED THAT THE SCOPE OF UNABATED ASSESSMENT FOR THE YEAR UNDER CONSIDERATION UNDER SECTION 153A OF THE ACT WAS CON FINED TO ASSESSMENT OF UNDISCLOSED INCOME OF THE ASSESSEE AS DETECTED O N THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AND SINCE THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH, WHICH COULD FORM THE BASIS OF THE ADDITION OF RS.15,00,00 0/- MADE BY THE ASSESSING OFFICER BY TREATING THE SHARE APPLICATION MONEY AS UNEXPLAINED CASH CREDIT UNDER SECTION 68, THE SAME IS NOT SUSTA INABLE. IN SUPPORT OF THIS CONTENTION, HE RELIED, INTER ALIA, ON THE DECI SION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PCIT VS.- KURELE PAPER M ILLS PVT. LIMITED [380 ITR 571] AS WELL AS THE DECISION OF THE HONBLE CAL CUTTA HIGH COURT IN THE CASE OF PCIT VS.- SALASAR STOCK BROKING LIMITED (I TAT NO. 264 OF 2016 DATED 25.08.2016). 5. THE LD. D.R., ON THE OTHER HAND, CONTENDED THAT THE BANK ACCOUNTS FOUND DURING THE COURSE OF SEARCH REVEALED THE SHAR E APPLICATION MONEY RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONS IDERATION AND SINCE THE IMPUGNED ADDITION BY TREATING THE SHARE APPLICA TION MONEY AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 WAS MADE B Y THE ASSESSING OFFICER ON THE BASIS OF THE SAID BANK ACCOUNTS FOUN D DURING THE COURSE OF SEARCH, THE SAME IS VERY MUCH WITHIN THE SCOPE OF A SSESSMENT MADE UNDER SECTION 153A. HE CONTENDED THAT THE ASSESSEE COULD NOT ESTABLISH THE IDENTITY AND CAPACITY OF THE CONCERNED APPLICANTS A S WELL AS ALSO FAILED TO ESTABLISH THE GENUINENESS OF THE RELEVANT TRANSACTI ONS INSPITE OF SUFFICIENT OPPORTUNITY AFFORDED BY THE ASSESSING OF FICER IN THIS REGARD. HE CONTENDED THAT THE PRIMARY ONUS THAT LAY ON THE ASS ESSEE THUS WAS NOT DISCHARGED AND THE ADDITION MADE BY THE ASSESSING O FFICER BY TREATING THE SHARE APPLICATION MONEY AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 WAS RIGHTLY CONFIRMED BY THE LD. CIT(APPEALS). I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 7 6. IN THE REJOINDER, THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE BANK ACCOUNT FOUND DURING THE COURSE OF SEARCH WAS DULY DISCLOSED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND EVEN THE SHARE APPLICATION MONEY REFLECTED IN THE SAID ACCOUNT WAS DULY SHOWN BY THE ASSESSEE IN THE BALANCE-SHEET FILED ALONG WITH THE REGULAR RETURN O F INCOME. HE CONTENDED THAT THE SAID BANK ACCOUNT, THEREFORE, DID NOT CONS TITUTE ANY INCRIMINATING MATERIAL AND IN THE ABSENCE OF ANY OT HER INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THE ADD ITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) BY TREATING THE SHARE APPLICATION MONEY AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 IS NOT SUSTAINABLE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOW WE LL SETTLED THAT WHEN THE ASSESSMENT ORIGINALLY COMPLETED FOR THE RELEVANT YE AR HAS BECOME FINAL BEFORE THE DATE OF SEARCH, THERE IS NO ABATEMENT OF THE SAID ASSESSMENT AND THE SCOPE OF ASSESSMENT UNDER SECTION 153A WHIC H IS MADE IN PURSUANT TO THE SEARCH IS LIMITED TO ASSESSING THE UNDISCLOSED INCOME OF THE ASSESSEE AS FOUND/DETECTED ON THE BASIS OF INCR IMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IN THE CASE OF K ERELE PAPER MILLS PVT. LIMITED (SUPRA) CITED BY THE LD. COUNSEL FOR THE AS SESSEE, NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUE WAS FOUND D URING THE COURSE OF SEARCH AND KEEPING IN VIEW THE SAME, THE ADDITION M ADE BY THE ASSESSING OFFICER BY TREATING THE SHARE CAPITAL AS UNEXPLAINE D CASH CREDIT UNDER SECTION 68 WAS HELD TO BE UNSUSTAINABLE BY THE HON BLE DELHI HIGH COURT. IN THE CASE OF SALASAR STOCK BROKING LIMITED (SUPRA ), IT WAS HELD BY THE HONBLE CALCUTTA HIGH COURT THAT INCRIMINATING MATE RIAL IS PRE-REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED UNDER SECTIO N 153A AND THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DISCLOSE ANY INCRIMINATING MATERIAL. I .T.(SS)A. NO. 91/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. A ONE INFRA PROJECTS PVT. LIMITED 8 8. IN THE PRESENT CASE, THE ADDITION OF RS.15,00,00 0/- BY TREATING THE SHARE APPLICATION MONEY AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 WAS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT COM PLETED UNDER SECTION 153A OF THE ACT ON THE BASIS OF BANK ACCOUNT FOUND DURING THE COURSE OF SEARCH AND SINCE THE SAID BANK ACCOUNT AS WELL AS T HE TRANSACTIONS REFLECTED THEREIN WERE DULY DISCLOSED BY THE ASSESS EE IN ITS RETURN OF INCOME ORIGINALLY FILED FOR THE YEAR UNDER CONSIDER ATION, WE FIND OURSELVES IN AGREEMENT WITH THE CONTENTION OF THE L D. COUNSEL FOR THE ASSESSEE THAT THE SAME CANNOT BE TREATED AS INCRIMI NATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THE ADDITION OF RS.15, 00,000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 AND CONFIRMED BY THE LD. CIT(APPEALS) THUS WAS NOT BASED ON ANY INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH AND THE SAME, IN OUR OPINION, IS NOT SUST AINABLE BEING OUTSIDE THE SCOPE OF SECTION 153A OF THE ACT. WE, THEREFORE , DELETE THE SAID ADDITION AND ALLOW THIS APPEAL OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 10, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 10 TH DAY OF MAY, 2019 COPIES TO : (1) M/S. A ONE INFRA PROJECTS PVT. LIMITED, A/67, BY LANE GURU TEJ BAHADUR MARG, NSB ROAD, SCHOOL MORE, RANIGANJ, WEST BENGAL-713 34 7 (2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(3), KOLKATA (3) COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.