ADITYA PLAZA MAKERS PVT LTD,KOLKATA vs. DCIT, KOLKATA

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ITSSA 48/KOL/2023Status: DisposedITAT Kolkata31 January 2025AY 2018-194 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the impugned addition is not sustainable and ordered its deletion. The primary reasoning was that there was no reference to any incriminating material found during the search action. Furthermore, the assessment for the year under consideration (AY 2018-19) stood completed and was not abated on the date of the search. The Tribunal found that this issue was squarely covered in favor of the assessee by the decision of the Hon'ble Supreme Court in the case of Pr. CIT Vs. Abhisar Buildwell Pvt. Ltd. (supra). Therefore, based on the absence of incriminating material and the non-abated status of the assessment, the addition made by the AO and confirmed by the CIT(A) was deemed unsustainable. The Tribunal did not expressly leave any issue undecided.

What were the facts?

The assessee, Aditya Plaza Makers Pvt. Ltd., is in appeal against the order of the Commissioner of Income Tax (Appeal)-Kolkata-21 for Assessment Year 2018-19. The appeal arises from an addition of Rs. 4,89,00,000/- made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, which was confirmed by the CIT(A). A search and seizure action under Section 132 of the Act was conducted in the assessee's case on January 13, 2022. Consequently, assessments for preceding years were reopened, and an assessment order was passed under Section 153A. The AO noted that the assessee had availed loans totaling Rs. 4,89,00,000/- during the year and demanded evidence of identity, creditworthiness of creditors, and genuineness of the transactions. The assessee provided details, stating loans were received through banking channels and repaid, and creditors had responded to notices under Section 133(6). The AO remained unsatisfied and made the addition.

What were the issues?

1. Whether the addition made by the Assessing Officer to the tune of Rs.4,89,00,000/- under Section 68 of the Income Tax Act, 1961, is sustainable in the absence of any incriminating material, considering the assessment for the year under consideration stood completed and not abated as on the date of search? Assessee's contentions: - The assessment for AY 2018-19 stood completed and was not abated at the time of the search. - No incriminating material was found during the search, thus the AO could not make the addition under Section 153A. - Relied on the Hon'ble Supreme Court decision in Pr. CIT Vs. Abhisar Buildwell Pvt. Ltd. [2013] 454 ITR 212 (SC). - On merits, creditors confirmed the loan transactions in response to Section 133(6) notices and during remand proceedings. - Bank statements and ledgers proved receipt and repayment of loans through banking channels. - Repayment of loans was established in subsequent assessment years without adverse inference. Revenue's contentions: - The judgment records that the Assessing Officer observed the assessee failed to prove identity, creditworthiness, and genuineness of transactions. - The CIT(A) upheld the AO's order, observing loans were carried forward year after year without repayment.

Which sections of the Income-tax Act were involved?

Section 68,Section 132,Section 153A,Section 133(6),Section 250

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA

Before: SRI SANJAY GARG & SHRI RAJESH KUMAR

For Appellant: Shri Bisweswar Ghosh, AR
For Respondent: Shri P. N. Barnwal, CIT, DR

आयकर अपीलीय अिधकरण कोलकाता 'B' पीठ, कोलकाता म� IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA Before SRI SANJAY GARG, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER I.T.(SS)A. No.: 48/KOL/2023 Assessment Year: 2018-19

Aditya Plaza Makers Pvt. Ltd. ………….. Appellant 41, Kanak Building, Chowringhee Square, West Bengal-700071. (PAN: AADCA9691H) Vs. DCIT Central Circle-3(1), Kolkata .............. Respondent

Appearances: Appellant represented by: Shri Bisweswar Ghosh, AR Respondent represented by: Shri P. N. Barnwal, CIT, DR Date of concluding the hearing : January 12, 2025 Date of pronouncing the order : January 31, 2025 ORDER Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 17.02.2023 of the Commissioner of Income Tax (Appeal)-Kolkata- 21 [hereinafter referred to as ld. ‘CIT (A)’]passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) for Assessment Year (AY) 2018- 19. 2. The assessee in this appeal has taken following grounds of appeal: “1. The Ld. CIT(A)-21, Kolkata erred in confirming the addition made by the Assessing Officer to the tune of Rs.4,89,00,000/- u/s. 68 of the Income Tax Act, 1961, which was made in the absence of any incriminating material.

I.T(SS).A. No.: 48/KOL/2023 Aditya Plaza Makers Pvt. Ltd., AY: 2018-19

2.

The Ld. CIT(A)-21, Kolkata passed the order without appreciating the fact that the conditions as laid down under section 68 of the Act were all satisfied by the appellant. 3. The appellant craves leave to supplement, substitute, add, alter, amend, cancel or modify all or any grounds at the time of hearing.”

3.

A perusal of the above grounds of appeal would reveal that the assessee is aggrieved by the action of the Ld. CIT(A) in confirming the addition made by the Assessing Officer of Rs.4,89,00,000/- u/s. 68 of the Act by treating the loan amount received by the assessee as income of the assessee from unexplained sources. 4. Brief facts of the case are that the assessee filed its return of income for the year under consideration i.e. AY 2018-19 on 31.10.2018. Thereafter, a search and seizure action u/s. 132 of the Act was conducted in the case of the assessee on 13.01.2022. Consequent to the search action, the assessments for the preceding six assessment years were reopened and the assessment order was passed u/s. 153A of the Act. During the assessment proceedings the Assessing Officer noted that the assessee during the year had availed loans of Rs.4,89,00,000/-. He asked the assessee to furnish the necessary evidences to prove the identity and creditworthiness of the creditors and genuineness of the transaction. The assessee furnished various details and evidences and pleaded that the loans were received by the assessee through banking channel and further the assessee had already repaid all the loan amounts. That all the creditors had responded and filed replies in compliance to the notices issued u/s. 133(6) of the Act. However, the Assessing Officer did not get satisfied with the reply and evidences furnished by the assessee and made the impugned addition. 5. Being aggrieved by the said order, the Ld. CIT(A) confirmed the addition so made by the Assessing Officer. Aggrieved, assessee is now in appeal before us. 6. We have heard rival contentions and gone through the records. The Assessing Officer in this case, has made the impugned addition observing that the assessee had failed to prove the identity and creditworthiness of the Page 2 of 4

I.T(SS).A. No.: 48/KOL/2023 Aditya Plaza Makers Pvt. Ltd., AY: 2018-19

creditors and genuineness of the transaction. That even the said creditors had filed reply to the notice issued u/s. 133(6) of the Act. The Ld. CIT(A) upheld the order of the Assessing Officer by further observing that even the loans were being carried forward year after year without being paid back. 6.1. Whereas the contention of the Ld. Counsel for the assessee is that the assessment for the year under consideration stood completed and not abated as on the date of search and further that no incriminating material was found during the course of search action and, therefore, the Assessing Officer was not supposed to make the impugned addition. He, in this respect, has relied on the decision of the Hon’ble Supreme Court in the case of Pr. CIT Vs. Abhisar Buildwell Pvt. Ltd. [2013] 454 ITR 212 (SC) wherein the Hon’ble Supreme Court has held that in case of non-abated/completed assessment, no addition can be made by the Assessing Officer in an assessment carried out u/s. 153A of the Act in the absence of any incriminating material found during the course of search action. 6.2. Even on merits, ld. Counsel for the assessee has brought our attention to the copies of the replies furnished by the creditors in response to the notices of the Assessing Officer issued u/s. 133(6) of the Act and has submitted that all the creditors had duly filed replies and confirmed the loan transactions. He has also relied on paper book pages 177 to 182 to submit that even during the appellate proceedings, the remand report was called and during the remand proceedings all the creditors had again filed replies confirming the loan transactions with the assessee. He has further submitted that pursuant to the search action, the Assessing Officer had made assessment for seven assessment years and the factum of repayment of loan was established during the subsequent assessment years and the Assessing Officer had not made any adverse inference regarding that. The Ld. Counsel has also relied upon the bank statement and the ledgers which are at pages 125 to 176 to prove that all the loans were received and paid back Page 3 of 4

I.T(SS).A. No.: 48/KOL/2023 Aditya Plaza Makers Pvt. Ltd., AY: 2018-19

through banking channel. He has also referred to a tabular format attached at page 83 of the paper book in this respect. 7. A perusal of the assessment record as well as the appellate order would reveal that there is no reference to any incriminating material found during the course of search action. The assessment for the year under consideration stood completed and not abated on the date of search action. Therefore, the issue is squarely covered in favour of the assessee by the decision of the Hon’ble Supreme Court in the case of Pr. CIT Vs. Abhisar Buildwell Pvt. Ltd. (supra) . In view of this, the impugned addition is not sustainable and the same is ordered to be deleted. 8. In the result, the appeal filed by the assessee stands allowed. Order pronounced in the open Court on 31st January, 2025.

Sd/- Sd/- [Rajesh Kumar] [Sanjay Garg] Accountant Member Judicial Member Dated: 31.01.2025 J.Dey (Sr. P.S.) Copy of the order forwarded to: 1. Appellant : Aditya Plaza Makers Pvt. Ltd. 2. Respondent : DCIT, CC-3(1), Kolkata 3. CIT(A), Kolkata-21. 4. CIT 5. DR, ITAT, Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata

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