Income Tax Appellate Tribunal - Kolkata
M/S. Jayanti Agro Products Pvt. Ltd., , ... vs Dcit, Central Circle - 4(3), , Kolkata on 10 May, 2019
I.T.(SS)A. Nos. 92 & 93/KOL/2018
Assessment Year: 2010-2011 & 2011-2012
M/s. Jayanti Agro Products Pvt. Limited
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. J ayanti Agro Products Pvt. Limited,. ....................................Appellant
B-3, Mangalpur Indu strial Complex,
Baktarnagar, Raniganj,
West Bengal-713347
[PAN: AACCJ 2274 N]
-Vs.-
Deputy Commissioner of Income Tax,............................................... .Respondent
Central Ci rcle-4 (3), Kolkata
Appearances by:
Shri Somnath Ghosh, Advocate, for the Appellant
Shri A.K. N ayak, CIT (D.R.), for the Respondent
Date of concluding th e 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 directed against two separate orders passed by the ld. Commissioner of Income Tax (Appeals)- 21, Kolkata, both dated 27.07.2018 whereby he confirmed the addition of Rs.33,41,000/- and Rs.9,21,000/- made by the Assessing Officer in assessment years 2010-11 and 2011-12 respectively by treating the share application amount received by the assessee during the year under consideration as unexplained cash credit under section 68 in the assessment completed under section 153A/143(3) of the Income Tax Act, 1961.
2. We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the common issue involved in this case in both the years under consideration relating to the additions made under section 68 is similar to the one involved in 1 I.T.(SS)A. Nos. 92 & 93/KOL/2018 Assessment Year: 2010-2011 & 2011-2012 M/s. Jayanti Agro Products Pvt. Limited the case of the other assessee belonging to the same 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 treating the share capital amounts received by the assessee during the years under consideration as unexplained cash credit on the basis of Bank account found during the course of search, which was already disclosed by the assessee and there was no incriminating material found 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 Infra Projects Pvt. Limited [I.T.(SS)A. No. 91/KOL/2018], we have deleted the similar addition made by the Assessing Officer for the following reasons given in Paragraphs no. 7 & 8 of the order:-
"7. We h ave co nsidered the rival submissions and also perused the relevant material avail able on reco rd. It is now well settled that when the assessment o riginally completed for the relevant year has beco me final before the date of search, there is no abatement of the said assessment and the scope of assessment under section 153A which is made in pursuant to the search is limit ed t o assessing the undisclosed income of the assessee as fo und/ detected on the basis of incriminating material found during the course of search . In the case of Kerele Paper Mills Pvt. Limited (supra) cit ed by the ld. Counsel for the assessee, no incriminating evidence rel ated to share capit al issue was found during the course of search and keeping in view the same, th e addition made by the Assessing Officer by t reating th e sh are capital as unexplaine d cash credit under section 68 was held to be unsust ainable by the Hon'ble Delhi High Court. In t he case of Sal asar St ock Broking Limit ed (supra), it was held by the Hon'ble C alcutta High Court that incriminating material is pre-requisit e before powe r co uld h ave been exercised under sectio n 153A and t he Assessing Officer had no jurisdiction under section 153A to reopen the concluded cases when the search and seizure did not disclose any incriminating material.
8. In the present case, the additio n of Rs.15,00,000/- by treat ing the share applicat ion money as unexpl ained cash credit under section 68 was made by the Assessing Officer in the assessment co mpl eted under sectio n 153A of the Act on th e basis of Bank account found during th e course of search and since th e said Bank account as well as the t ransactions reflected therein were duly disclosed by the assessee in it s return of income originally filed for the year under 2 I.T.(SS)A. Nos. 92 & 93/KOL/2018 Assessment Year: 2010-2011 & 2011-2012 M/s. Jayanti Agro Products Pvt. Limited consideration, we find o urselves in agreement with the contention of the ld. Counsel for the assessee th at the same cannot be treated as incriminating material found during the course of search. The additio n of Rs.15,00 ,000/- made by the Assessing Officer under sectio n 68 and confirmed by the ld.
CIT(Appeals) thus was not based on any incriminating material found during th e course of search and the same, in our o pinion, is not sustainable being outside the scope of section 153A of the Act . We, therefore, delete the said addition an d allow this appeal of th e assessee".
3. As the common issue involved in the present case as well as all the material facts relevant thereto and the arguments raised by both the sides are similar, we follow our conclusion drawn in the case of A-One Infra Projects Pvt. Limited and delete the additions 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 t h day of May, 2019
Copies to : (1) M/s. J ayanti Agro Products Pvt. Limited,
B-3, Mangalpur Indu strial Complex,
Baktarnagar, Raniganj,
West Bengal-713347
(2) Deputy Commissioner of Income Tax,
Central Ci rcle-4 (3), Kolkata
(3) Commissioner of Inco me T ax (Appeals)-21, Kolkata, (4) Commissio ner of Income Tax- , (5) The Depart ment al Represent ative (6) Guard File By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. 3