M/s. Jayanti Agro Products Pvt. Ltd., , Raniganj V. DCIT, Central Circle - 4(3), , Kolkata

ITSSA 92/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4386 (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: 2010-2011
• Appeal Filed On: 14-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Keywords: Unexplained cash credit; Search and seizure
• Section: 153A; 68

Judgement Text

I .T.(SS)A. NOS. 92 & 93/KOL/2018 ASSESSMENT YEAR: 2010-2011 & 20 11-2012 M/S. J AYANTI AGRO PRODUCTS 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. NOS. 92 & 93/KOL/2018 ASSESSMENT YEARS: 2010-2011 & 2011-2012 M/S. JAYANTI AGRO PRODUCTS PVT. LIMITED,........... ..........................APPELLANT B-3, MANGALPUR INDUSTRIAL COMPLEX, BAKTARNAGAR, RANIGANJ, WEST BENGAL-713347 [PAN: AACCJ 2274 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) :- THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST TWO SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)- 21, KOLKATA, BOTH DATED 27.07.2018 WHEREBY HE CONFI RMED THE ADDITION OF RS.33,41,000/- AND RS.9,21,000/- MADE BY THE ASSESS ING OFFICER IN ASSESSMENT YEARS 2010-11 AND 2011-12 RESPECTIVELY B Y TREATING THE SHARE APPLICATION AMOUNT RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT UNDER SECT ION 68 IN THE ASSESSMENT COMPLETED UNDER SECTION 153A/143(3) OF T HE INCOME TAX ACT, 1961. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE COMMON ISSUE INVOLVED IN THIS CASE IN BOTH THE YEARS UNDER CONSIDERATION RELATING TO THE ADDITIONS MADE UNDER SECTION 68 IS SIMILAR T O THE ONE INVOLVED IN I .T.(SS)A. NOS. 92 & 93/KOL/2018 ASSESSMENT YEAR: 2010-2011 & 20 11-2012 M/S. J AYANTI AGRO PRODUCTS PVT. LIMITED 2 THE CASE OF THE OTHER ASSESSEE BELONGING TO THE SAM E GROUP NAMELY M/S. A-ONE INFRA PROJECTS PVT. LIMITED, INASMUCH AS, IN THE UNABATED ASSESSMENTS COMPLETED UNDER SECTION 153A OF THE ACT , ADDITIONS WERE MADE BY THE ASSESSING OFFICER UNDER SECTION 68 BY T REATING THE SHARE CAPITAL AMOUNTS RECEIVED BY THE ASSESSEE DURING THE YEARS UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT ON THE BAS IS OF BANK ACCOUNT FOUND DURING THE COURSE OF SEARCH, WHICH WAS ALREAD Y DISCLOSED BY THE ASSESSEE AND THERE WAS NO INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH ON THE BASIS OF WHICH THE SAID ADDITIONS WERE MADE. BY OUR ORDER OF EVEN DATE PASSED IN THE CASE OF A-ONE INFR A PROJECTS PVT. LIMITED [I.T.(SS)A. NO. 91/KOL/2018], WE HAVE DELETED THE S IMILAR ADDITION MADE BY THE ASSESSING OFFICER FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPHS NO. 7 & 8 OF THE ORDER:- 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOW WELL SETTLED THAT WHEN THE ASSESSMENT ORIGINALLY CO MPLETED FOR THE RELEVANT YEAR HAS BECOME FINAL BEFORE THE DATE OF SEARCH, THERE IS NO ABATEMENT OF THE SAID ASSESSMENT AND TH E SCOPE OF ASSESSMENT UNDER SECTION 153A WHICH IS MADE IN PURS UANT TO THE SEARCH IS LIMITED TO ASSESSING THE UNDISCLOSED INCOME OF THE ASSESSEE AS FOUND/DETECTED ON THE BASIS OF INCRIMIN ATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IN THE CASE OF KERELE PAPER MILLS PVT. LIMITED (SUPRA) CITED BY TH E LD. COUNSEL FOR THE ASSESSEE, NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUE WAS FOUND DURING THE COURSE OF SEARCH AND KEEPING IN VIEW THE SAME, THE ADDITION MADE BY THE ASSESSING OFFICER BY TREATING THE SHARE CAPITAL AS UNEXPLAINE D CASH CREDIT UNDER SECTION 68 WAS HELD TO BE UNSUSTAINABLE BY TH E HONBLE DELHI HIGH COURT. IN THE CASE OF SALASAR STOCK BROK ING LIMITED (SUPRA), IT WAS HELD BY THE HONBLE CALCUTTA HIGH C OURT THAT INCRIMINATING MATERIAL IS PRE-REQUISITE BEFORE POWE R COULD HAVE BEEN EXERCISED UNDER SECTION 153A AND THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A TO REOPEN TH E CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DISCLOSE ANY INCRIMINATING MATERIAL. 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 O FFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 153A OF THE ACT ON THE BASIS OF BANK ACCOUNT FOUND DURING THE COURSE OF SE ARCH AND SINCE THE SAID BANK ACCOUNT AS WELL AS THE TRANSACT IONS REFLECTED THEREIN WERE DULY DISCLOSED BY THE ASSESS EE IN ITS RETURN OF INCOME ORIGINALLY FILED FOR THE YEAR UNDE R I .T.(SS)A. NOS. 92 & 93/KOL/2018 ASSESSMENT YEAR: 2010-2011 & 20 11-2012 M/S. J AYANTI AGRO PRODUCTS PVT. LIMITED 3 CONSIDERATION, WE FIND OURSELVES IN AGREEMENT WITH THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE SAME CANNOT BE TREATED AS INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH. THE ADDITION OF RS.15,00,000/- MA DE BY THE ASSESSING OFFICER UNDER SECTION 68 AND CONFIRMED BY THE LD. CIT(APPEALS) THUS WAS NOT BASED ON ANY INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE SAME, IN OUR OPINION, IS NOT SUSTAINABLE BEING OUTSIDE THE SCOPE OF SECTI ON 153A OF THE ACT. WE, THEREFORE, DELETE THE SAID ADDITION AN D ALLOW THIS APPEAL OF THE ASSESSEE. 3. AS THE COMMON ISSUE INVOLVED IN THE PRESENT CASE AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO AND THE ARGUMENTS R AISED BY BOTH THE SIDES ARE SIMILAR, WE FOLLOW OUR CONCLUSION DRAWN I N THE CASE OF A-ONE INFRA PROJECTS PVT. LIMITED AND DELETE THE ADDITION S MADE BY THE ASSESSING OFFICER UNDER SECTION 68 AND CONFIRMED BY THE LD. CIT(APPEALS) FOR BOTH THE YEARS UNDER CONSIDERATION. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. 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. JAYANTI AGRO PRODUCTS PVT. LIMITED, B-3, MANGALPUR INDUSTRIAL COMPLEX, BAKTARNAGAR, RANIGANJ, WEST BENGAL-713347 (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.