Income Tax Appellate Tribunal - Chandigarh
M/S Green View Land & Buildcon Ltd., ... vs Dcit, Chandigarh on 21 March, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCHES 'A', CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER&
Ms. ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No.46/Chd/2013
Assessment Year: 2004-05
M/s Greenview Land &Buildcon Vs. The ACIT, Central Circle-II,
Pvt Ltd., SCO 854, NAC, Chandigarh
Manimajra, Chandigarh
PAN No. AACCG3524C
ITA No.47/Chd/2013
Assessment Year: 2006-07
M/s Greenview Land &Buildcon Vs. The ACIT, Central Circle-II,
Pvt Ltd., SCO 854, NAC, Chandigarh
Manimajra, Chandigarh
PAN No. AACCG3524C
ITA No.808/Chd/2016
Assessment Year: 2004-05
M/s Greenview Land &Buildcon Vs. The ACIT, Central Circle-II,
Pvt Ltd., SCO 854, NAC, Chandigarh
Manimajra, Chandigarh
PAN No. AACCG3524C
(Appellant) (Respondent)
Appellant By : Sh. Neeraj Jain, Advocate
Respondent By : Sh. Gulshan Raj, CIT DR
Date of hearing : 21.03.2018
Date of Pronouncement: 21.03.2018
ITA Nos. 46 & 47/Chd/2013 & 808/Chd/2016
Greenview land &BuildconPvt ltd..
2
ORDER
Per Sanjay Garg, Judicial Member:
These appeals have been preferred by the assessee against the separate orders of C o m m i s s i o n e r o f I n c o m e T a x ( A p p e a l s ) , [ h e r e i n a f t e r referred to as CIT(A)]-Central,Gurgaon dated 12.12.2016 and CIT(A)-3 Gurgaon dated 29.4.2016
2. ITA Nos. 46& 47/Chd/2013 are the appeals filed by the assessee agitating therein the confirmation of quantum additions u/s 153A read with Section 153Cof the Income-tax Act, 1961 (in short 'the Act') whereas ITA No. 808/Chd/2013 is relating to levy of penalty u/s 271(1)(c) of the Act in relation to the quantum additionsrelevant to assessment year 2004-05.
3. First we take up the appeals challenging the quantumadditions. ITA No. 46/Chd/2013 for assessment year 2004-05 is taken as a lead case for the purpose of narration of facts.
4. The brief facts relating to the issue are that a search and seizure operation was conducted at the premises of one Shri Sandeep Bansal and along with thata survey action was also carried out on the premises of the assessee during the search on 16.1.2009. Two agreements showing certain advance payments made by the assessee for the purchase of certain immovable property was found and seized from the premises of Shri Sandip Bansal. Hence, the proceedings u/s 153C of the Act were initiated in the case of the assessee. Accordingly, the assessments for six years from the date of search were reframed. During the assessment proceedings for assessment year 2004-05, the Assessing officer noticed that the ITA Nos. 46 & 47/Chd/2013 & 808/Chd/2016 Greenview land &BuildconPvt ltd..
3 assessee during the year had received share application money amounting to Rs. 8 lacs. The case of the assessee was that assessee had explained the sources of said deposits / share application money whereas the Assessing officer was of the opinion that the assessee could not explain the sources / genuineness of the transactions. He, therefore, made addition of Rs. 8 lacs into the income of the assessee. The assessee unsuccessfully contested the appeal before the CIT(A).
5. Before us, Ld. Counsel for the assessee has taken a legal ground that the assessments for six years prior to date of search were framed u/s 153A read with section 153C of the Act. He has submitted that so far as the assessments for assessment years 2004-05 was concerned, the original assessments in already stood competed as on the date of search. He has invited our attention to the assessment record and has submitted that for assessment year 2004-05, the return of income was furnished on 31.10.2004. The notice u/s 143(2) of the Act could have been issued b y the Assessing officer up to 31.10.2005. However, the search action in the premises of Shri Sandeep Bansal was carried on out 16.1.2009 and as explained above, no incriminating material relating to the share application money was found during the search action. The Ld. counsel has further invited our attention to the assessment order for assessment year 2009-10 to show that even for the searched year, no addition had been made into the income of the assessee on account of share application money. The Ld. counsel, therefore, relied upon the decisions of the Hon'ble Bombay High Court in the case of 'CIT Vs. Murli Agro Products Pvt Ltd', (2014) 49 taxman.com 172 (Bom.), ITA No.36 of 2009 and in the case of 'CIT Vs. ITA Nos. 46 & 47/Chd/2013 & 808/Chd/2016 Greenview land &BuildconPvt ltd..
4 Continental Warehousing Corporation' ITA No. 523 of 2013 reported in (2015) 279 CTR 0389 (Bombay) and on the case of Hon'ble Delhi High Court in the case of 'CIT Vs. Kabul Chawla' 234 Taxman 300 (Delhi) and subsequent decision of the Delhi High Court in the case of 'Principal CIT Vs. MeetaGutgutia Prop M/s Ferns 'N' Petals", ITA 306/2017 and others decided vide order dated 25.5.2017, and has submitted that since the original assessment for the aforesaid years stood completed as on the date of search and no incriminating material was found so far as the assessment years under consideration were concerned, hence, the Assessing officer was precluded from making any addition or opening up an issue, in relation to already concluded assessment proceedings.
6. The Ld. DR, on the other hand, has relied on the findings of the lower authorities and has submitted that the additions have been rightly made by the lower authorities into the income of the assessee for the aforesaid assessment years.
7. We have heard the rival contentions. Admittedly, the assessment for the aforesaid assessment years 2004-05 stood completed on the date of search. No incriminating material whatsoever inrelation to the share application money was found either relevant to assessment year searched i.e. for assessment year 2009-10 or in relation to the assessment year under consideration i.e. assessment year 2004-05. Even no additions have been made in thesearched year on account of any share application money. It has been time and again held by the various High Courts that if no incriminating material is found during the search action, the addition in the case of already concluded assessment cannot be made while framing ITA Nos. 46 & 47/Chd/2013 & 808/Chd/2016 Greenview land &BuildconPvt ltd..
5 assessment u/s 153A of the Act. Reliance in this respect can be placed in the case of 'CIT Vs. Continental Warehousing Corporation' ITA No. 523 of 2013 reported in (2015) 279 CTR 0389 (Bombay) and of the Hon'ble Delhi High Court in the case of 'CIT Vs. Kabul Chawla' 234 Taxman 300 (Delhi).
8. We find that the case of the assessee is squarely covered by the aforesaid decisions. The aforesaid decisions have been further affirmed b y the decision of the Delhi High Court in the case of 'Principal CIT Vs. MeetaGutgutia Prop M/s Ferns 'N' Petals", ITA 306/2017 and others decided vide order dated 25.5.2017. The aforesaid case laws can be well applied to the facts and circumstances of the case in hand. In view of this, we do not find any justification on the part of the lower authorities for making additions on account of share application money so far as the assessment year 2004-05 is concerned.
9. As far as the assessment year 2006-07 is concerned, the Ld. Counsel for the assessee has explained that in the said assessment year, the additions have been made at Rs. 54,000/- and 7,50,000/- u/s 40(a)(ia) of the Act and that the said issue has no relation to any incriminating material found during search action. That for assessment year 2006-07, the return was furnished on 30.11.2006. The notice u/s 143(2) could have been issued by the Assessing officer on 30.11.2007 whereas the search action was carried out on 16.1.2009. Hence, the assessment for assessment year 2006-07 stood completed on the date of search and no incriminating material was found during search action at the premises of Shri Sandeep Bansal in this respect. In view of our findings given above, the additions ITA Nos. 46 & 47/Chd/2013 & 808/Chd/2016 Greenview land &BuildconPvt ltd..
6 made by the Assessing officer while framing assessment u/s 153A read with section 153C are not sustainable in the eyes of law so far as the assessment year 2006-07 is concerned.
10. Now coming to ITA No. 808/Chd/2016, which is in relation to lev y of penalty u/s 271(1)(c) of the Act on the basis addition made into the income of the assessee for assessment year 2004-05. Since, in view of findings given above, we have already deleted the quantum addition for the assessment year 2004-05, hence, the impugned penalty levied u/s 271(1)(c) of the Act has no legs to stand, the same is accordingly ordered to be deleted.
In view of this, the captioned appeals of the assessee are hereby allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 21.03.2018 Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR