ROSY BLUE SECURITIES P.LTD,MUMBAI vs. ASST CIT CEN CIR 46, MUMBAI

Another issue raised in assessment year 2008-09 is that the ld. Commissioner of Income Tax (Appeals) erred in upholding the order of the ld. Commissioner of Income Tax (Appeals) in the computation of capital gains on the sale of shares of Bombay Stock Exchange.

For both the assessment years, the assessee has raised one additional ground, which reads as under:

We have heard both the counsel and perused the records, with regard to the admission of additional ground. Since the additional ground is an important legal matter, we admit the same. We note that in both the assessment years, the assessment order had already been completed u/s. 143(3) earlier, hence, these assessments have u/s.153A which is an assessment pursuant to search and seizure action, no seized material has been referred to for making of this addition. The Hon’ble jurisdictional High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 374 ITR 645 (Bom) has expounded that in case of an assessment u/s. 153A pursuant to search and seizure action where assessment has already been done earlier, no addition can be made dehorse any seized material. The ld. Departmental Representative could not point out any incriminating material found in search and fairly agreed that the addition in the present case has not been made with reference to any seized material pursuant to search.

Accordingly, since the present assessment u/s. 153A has been done dehorse any seized material and the earlier assessment has already been completed u/s. 143(3), respectfully following the precedent from the Hon'ble jurisdictional High Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra), we hold that the addition is not at all sustainable at the threshold. Accordingly, the additional ground raised by the assessee stands allowed.

Since the assessment has been quashed by allowing the additional ground, the adjudication on the merits of the appeal is now only of academic interest and accordingly we are not engaging into the same.

In the result, these appeals by the assessee stand allowed. प�रणामतः �नधा�रती क� अपील �वीकृत क� जाती है । Order pronounced in the open court on 01.03.2018 Sd/- Sd/- (Ram Lal Negi) (Shamim Yahya) �या�यक सद�य / Judicial Member लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated : 01.03.2018 व.�न.स./Roshani, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. आयकर आयु�त(अपील) / The CIT(A) 3. आयकर आयु�त / CIT - concerned 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6. आदेशानुसार/ BY ORDER,