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Income Tax Appellate Tribunal, DELHI BENCH ‘A’, NEW DELHI
Before: SH. N. K. BILLAIYA & SH. YOGESH KUMAR US
PER N. K. BILLAIYA, AM: and 4796/Del/2018 are appeals by the assessee preferred against common order of the CIT(A)-4, Kanpur dated 15.05.2018 pertaining to A.Y. 2011-12 and 2012-13. 2. Since common grievance is involved in both the appeals they are disposed of by this common order for the sake of convenience and brevity. 3. The common grievance read as under :-
Representatives of both the sides were heard at length. Case record carefully perused.
Briefly stated the facts of the case are that a search and seizure operation u/s. 132 of the Act was conducted on 27.11.2014 in the case of Maconnns, Meenu and Yadav Singh Group Noida covering its business premises and residences of Director, their family members and other business associates concern and other key persons. 6. During the course of search operation at the residence of Abhay Maheshwari, a laptop was found and seized. From the scanning of seized data it was found that M/s. Golf Link Hospitality Private Limited has obtained unsecured loan, share application money and share capital from various doubtful entities, the assessee M/s. BMA Infotech Pvt. Ltd. is one of them. 7. Notice u/s. 153C of the Act was issued on 20.04.2015 and the AO started the assessment proceedings. 8. During the course of the scrutiny assessment proceedings the AO found that the assessee has raised money through share application amounting to Rs.1,22,80,000/-. The assessee was asked to furnish details, creditworthiness as well as genuineness of the transaction. On receiving no plausible reply the AO made addition u/s. 68 of the Act. 9. The assessee challenged the assessment before the CIT(A) on the legal ground that provisions of section 153 C of the Act do not apply on the facts of the case, the appeal of the assessee on this ground was dismissed by the CIT(A). It was also contended before the CIT(A) that no incriminating material was found during the course of the search and, therefore, in the light of the ratio laiddown by the Hon’ble Supreme Court in the case of Sinhgad Technical Education Society 397 ITR 344 the assessment is bad in law. This plea of the assessee was also dismissed by the CIT(A).
A perusal of the record show that following satisfaction note was recorded for initiation of proceedings u/s.153C of the Act in respect of the assessee :-
The above mentioned satisfaction note has to be considered in the light of the provision of section 153 C of the Act as it stood at the relevant assessment year and the same read as under :-
“75. Substituted for “Nothwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assests seized or other person” by the Finance Act, 2015 w.e.f. 1.06.2015.”
A bare perusal of the aforementioned provision show that nothing belonging to the assessee was found at the time of search at the premises of Abhay Maheshwari. The laptop was found from the premises of Abhay Maheshwari and as per the provisions of section 132 (4A) (i) and 292 C of the Act the presumption is that the document and assets found in the course of search from premises of a person it may be presumed that such item belong to the person whose premises are searched. It can be seen from the satisfaction note there is no reference to any laptop found at the time of search and as mentioned here in above whatever was found at the time of search belonged to Abhay Maheshwari.
The Hon’ble High court of Gujarat in the case of Anilkumar Gopikishan Aggarwal 418 ITR 25 has held that section 53C as amended w.e.f. 01.06.2015 would not be applicable to cases where search is initiated prior to the date. In the present case since the search was conducted on 27.11.2014 the un-amended provision as mentioned elsewhere would apply.
A bare perusal of the assessment order would show that there is no reference to any incriminating material for the addition made by the AO, therefore, the ratio laiddown by the Hon’ble Supreme Court in the case of Singhad Technical Education Society (supra) squarely apply.
Considering the legal issues from all possible angle. In our considered opinion the assessment order is bad in law and is liable to be quashed. We, therefore, quash both Assessment Orders and allow the appeals.
Decision announced in the open court in the presence of both the parties on 24.02.2022.