DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(3), KOLKATA, KOLKATA vs. RAJA SHELTERS PRIVATE LIMITED, KOLKATA

Per Pradip Kumar Choubey, Judicial Member:

Both the captioned appeals have been preferred by the revenue for the assessment years 2009-10 & 2013-14 against separate orders dated
21.02.2025 and 25.02.2025 of the Commissioner of Income Tax
(Appeals)-27, Kolkata [hereinafter referred to as ‘CIT(A)’] passed u/s 250
of the Income Tax Act (hereinafter referred to as the ‘Act’) respectively.
Since, the issues involved in both the appeals are common and relate to the same assessee, therefore, these appeals have been heard together and are being disposed of by this consolidated order.
ITA
No.1173/Kol/2025 is taken as lead case for narration of facts.
2. ITA No.1173/Kol/2025 – Brief facts of the case are that the assessee filed its original return of income u/s 139 of the Act on 27.03.2010 declaring total income of Rs. NIL/-. Later, a/search and seizure operation u/s 132(1) of the Act and survey operation u/s 133A of ITA Nos.1173 & 1175/Kol/2025
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the Act were conducted in respect of 'Goldern Goenka group of assessees on 17.03.2015 and on subsequent dates. This group was engaged in the business of financing, trading and investment in commodities and shares, mutual funds, real estates, and beverages. Being one of the entities of the said group, the assessee was also covered under this search & seizure operation conducted on 17.03.2015. During the course of search & seizure operation, documents (containing bank details of the assessee) were found and seized from the office premise of the assessee.
These documents were inventoried under ID Marks GG/3. Consequent upon the search & seizure operation, 'Golden Goenka group of cases'
were centralized to the Central Circle 4(3), Kolkata for post search assessment proceedings. Subsequently, juri iction of this case was transferred to the charge of Central Circle 4(3), Kolkata vide order u/s 127 of the Act dated 16.12.2015 of the Pr. CIT-1, Kolkata. Thereafter, assessment proceeding u/s 153A of the Act was initiated and notice u/s 153A of the Act was issued for furnishing of return of income. In response to the said notice, the assessee furnished its return on 08.03.2017 declaring income to Rs. 1,500/-. Subsequently. notices u/s 143(2) & u/s 142(1) of the Act were issued on 12.04.2017 and 18.08.2017 respectively. In response to these notices, the AR of the assessee appeared and explained the return of income and also furnished the financial statements of the company for the relevant assessment year. The assessee also furnished the details of shares allotment to the subscriber entities and application money (including share premium) received from those share subscribers'.
These submissions/details, as made by the assessee, are perused by the AO and placed on in record. In consideration to the reply and explanation furnished by the assessee, order u/s 153A of the Act was passed by the AO on 29.12.2017 at assessed income of Rs. 15,01,500/-. From the assessment order, it is observed that the AO had made single addition of ITA Nos.1173 & 1175/Kol/2025
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Rs. 15,00,000/- for unexplained cash credit u/s 68 of the Act on account of amount received by the assessee in terms of share application money.

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5. The ld. AR supports the impugned order thereby submitting that there is no infirmity in the impugned order as the assessee’s case falls under the category of unabated assessment. The assessee was already assessed u/s 143(1) of the Act and prescribed time limit for issuance of notices u/s 143(2)/148 of the Act were already expired and there were no incriminating materials/documents found during the search. The ld. AR further submits that the assessee submitted all the documents to substantiate the identity and creditworthiness of the subscribers as well as the genuineness of the transaction in respect of the receipt amount of Rs.15,00,000/- in the F.Y 2008-09. 6. Upon hearing the submissions of the counsels of the respective parties and on perusal of the order of the ld. CIT(A) and find that the assessee is a company registered under the Companies Act and engaged in the business of real estate and investment. The assessee filed return of income for the assessment year 2009-10 declaring total income of Rs.1,500/- which was accepted in processing u/s 143(1) of the Act. On perusal of the impugned order, the following facts has been emerged being tabulated hereunder:
1
Date of filing of Return u/s 139(1) of the IT Act
27.03.2010
2
Time limit within which notice to be issued u/s 143(2) of the IT Act
(No such notice was issued)
30.09.2010
3
Date of Search conducted u/s 132 of the IT Act

Rs. 15,00,000

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6.1
In the present case, the amount received from share subscription for Rs.15,00,000/- was added u/s 68 of the Act as unexplained cash credit. It is not in dispute that in the search proceedings, no incriminating material relating to issuance of share subscription was found. It appears from the record that no assessment was pending on the date of search and no proceedings were abated from the date of search.
We have gone through the order passed by the ld. CIT(A) and the relevant portion of the order of the ld. CIT(A) is reproduced hereinbelow:
“5.2. Discussions & Decision:-
5.2.1. I have gone through the assessment order as well as the submission
& rejoinder of the assessee. On perusal of the same, it is found that a search & seizure action was conducted in the case ‘Golden Group of cases’
on 17.03.2015 and the assessee was also covered under this operation. In the course of search & seizure operation, documents (containing bank details of the assessee) were found and seized with ID Marks GG/3. Subsequently, Golden Goenka group cases were centralized to the Central
Circle 4(3), Kolkata and juri iction of the assessee was also transferred to the charge of the Central Circle 4(3), Kolkata. Thereafter, assessment proceeding u/s 153A of the Act was initiated and notice u/s 153A of the Act and was issued to the assessee. In the course of assessment proceeding, statutory notices u/s 142(1), 143(2) and show cause notices were also issued by the AO. In response to these notices, the assessee furnished the financial statements of the company for the relevant assessment year. The assessee also furnished the details of share allotment and application money (including share premium) received from those share subscribers. These submissions/allotment details are perused by the AO and the assessee was asked to prove the genuineness of the transactions (amount received during the relevant year in terms of share application money) involved with the allotment of such shares during the period of AY 2009-10. Further, it is observed from the assessment order that the assessee, in its reply to the AO, has laid emphasis on the point that there was no evidence or material found in course of search and no assessment proceeding was pending in this case on the date of initiation of search, so, completed assessment u/s 143(1) could not be disturbed u/s 153A of the Act. In this regard, the AO viewed that the issue of judicial pronouncement has not yet reached the finality and further opined that the assessee had not proved the genuineness of the transaction and credit worthiness of share applicants/ shareholders. Thereafter, the Assessing Officer passed the order u/s 153A of the Act at assessed income of Rs. 15,01,500/- wherein

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addition of Rs. 15,00,000/- was made u/s 68 of the Act for unexplained cash credit.
5.2.2. Upon perusal of the submissions made in the course of appellate proceeding, it is observed that the appellant mainly contested on technical issue of the case and contended that the assessment year under consideration i.e. 2009-10 relates to year in which the assessment was not abated/completed, so, any disallowance/addition can be made only based on incriminating evidences found in the course of search. The assessee Further, the assessee, relying upon the judgment of the Hon’ble
[2023], the assessee submitted that no incriminating material relating to issuance of share subscription was found and also the addition made in the assessment order is not based on any incriminating evidence found in the course of search action and hence no addition can be made in the assessment order passed u/s 153A of the Act.
5.2.3. It is noticed that while making the said addition, assessing officer failed to link the above issues with any of the incriminating material found during the search & seizure operation from the premise of the appellant. I find force in the argument made by the appellant vide his written submission that AO failed to link the addition made by him with any of the incriminating material found during the course of search proceedings. The Hon’ble Apex court in the case of ‘Principal Commissioner of Income-tax,
Central-3 vs. Abhisar Buildwell (P.) Ltd [2023] 149 taxmann.com 399 (SC)’
clearly stated that any addition made by the assessing officer without any incriminating material for the year which is unabated as per the provision of the Act is bad in law and should be quashed immediately. In the present case, the AO added Rs. 15,00,000/- without linking the said issue of share application money with any of the incriminating material which is pre requisite for making any addition while framing the assessment order under section 153A of the IT Act, 1961, failure of which will make the addition void.
The relevant portion of the judgement of the Hon’ble Apex Court in the case of ‘Principal Commissioner of Income-tax, Central-3 vs. Abhisar Buildwell
(P.) Ltd [2023] 149 taxmann.com 399 (SC)’ is reproduced as under for ready reference:
“13. For the reasons stated hereinabove, we are in complete argument with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujrat High Court in the case of Saumya Construction (supra) and the decisions of the other High Courts taking the view that no addition can be made in respect of the completed assessments in absence of any incriminating material.
14. In view of the above and for the reasons stated above, it is concluded as under:

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i) that in the case of search under section 132 or requisition under section 132A, the Assessing Officer assumes the juri iction for block assessment under section 153A; ii) all pending assessments/reassessments shall stand abated; iii) in case of any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the juri iction to assess or reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and iv) in case no incriminating material unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed or unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However the completed/unabated assessments can be reopened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved.”
Hence, in view of the principle laid down by the Apex court in the above judgement, no addition can be made in respect of the unabated completed assessments in absence of any incriminating material. Hence, the addition made by the AO without any incriminating material cannot be accepted.
However, the Hon’ble Supreme Court stated that the completed/unabated assessments can be reopened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act.
Reliance is placed on the case of ‘Bhagya Kalita vs. ACIT, Central Cir-1,
Guwahati, ITA 120 to 124/GTY/2024, dated 27.09.2024’, where the Hon’ble ITAT, Guwahati Bench, Kolkata had held that AO can consider the possibilities of invoking provisions of section 148/149 r.w.s. 150 of the Act.
The relevant portion of the citation is as under:
“4.1. Respectfully following the directions in the extracted portion of the above judgment (para 14 (supra), it deserves to be recorded in this order that the Id. AO needs to consider appropriate action u/s 147/148 of the Act keeping in view the express provisions contained in Section 150 of the Act. For the sake of reference, the said section deserves to be reproduced as under:
"(1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an ITA Nos.1173 & 1175/Kol/2025
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assessment or reassessment or recomputation in consequence of or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision or by a Court in any proceeding under any other law.
(2) The provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or recomputation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or recomputation may be taken."
4.2. At this juncture, it deserves to be mentioned that Section 150 of the Act intends to lift the embargo of period of limitation u/s 149 of the Act to enable the Income Tax Authorities to reopen assessments not only on the basis of orders passed in proceedings under the Act but also on orders of appellate authorities. In considering the action u/s 147/148 of the Act the ld. AO would be advised to refer to Instruction No. 1/2003 dated
23.08.2023, which was issued by CBDT to give effect to the case of Abhisar Buildwell (P.) Ltd. (supra). Needless to say, directions u/s 150(1) of the Act would need to be followed strictly and will need to be read in conjunction with the appropriate provisions contained u/s 147/148/149 of the Act.”
5.2.4. In view of the above discussion and judicial pronouncements, the additions made without linking up to incriminating materials is not sustainable. Hence, the additions made without incriminating material cannot be upheld. Therefore, this ground of appeal raised by the assessee is allowed. However, the AO may examine the possibilities of invoking provisions u/s 147/148 r.w.s. 150 of the Income Tax Act, 1961.”
6.2
Going over the order passed by the ld. CIT(A) and considering the facts of the case of the assessee, we do not find any infirmity in the impugned order. Accordingly, the appeal of the revenue in ITA
No.1173/Kol/2025 is hereby dismissed.
7. ITA No.1175/Kol/2025 - Since the facts and issues involved in both the appeals are identical, therefore, our findings/directions given above in ITA No.1173/Kol/2025 will mutatis mutandis apply to ITA No.
1175/Kol/2025. Hence, ITA No. 1175/Kol/2025 is also dismissed.

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8. In the result, both the captioned appeals of the revenue are dismissed.
Kolkata, the 18th September, 2025. [Rajesh Kumar]

[Pradip Kumar Choubey]
Accountant Member

Judicial Member

Dated: 18.09.2025. RS

Copy of the order forwarded to:
1. Appellant -
2. Respondent -
3. CIT(A)-
4. CIT- ,

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By order