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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: MS SUCHITRA KAMBLE & DR. B. R. R. KUMAR
ORDER
PER SUCHITRA KAMBLE, JM
This appeal is filed by the Revenue against the order dated 24/11/2016 passed by CIT(A)-23, New Delhi for assessment year 2012-13.
The grounds of appeal
s are as under:- “1. The order of Ld.CIT(A) is not correct in law and facts.
2. On the facts and circumstances of the case, the Ld.CIT(A) has erred in law in deleting the addition of S. 95,16,400/- made by the Assessing Officer on account of gain on sale of investment.”
3. The assessee is an individual and earned income from house property and other sources during the relevant Assessment Year. The original return u/s 139(1) was filed by the assessee on 30/03/2013 declaring total income of Rs. 7,50,310/-. Search and seizure operation was conducted on Jackson Group of cases u/s 132 of the Act on 3/10/2014. The group is headed by Shri Satish Kumar Gupta (Chairperson) and the assessee Shri Bhawna Gupta, the wife of Sh. Sameer Gupta who is Managing Director of M/s Jackson Group of Companies . Correspondingly, the assessment u/s 153(A) initiated in case of assessee. Notice u/s 153A (1) of the Act was served upon the assessee and the assessee filed original ITR in response to same. Notice u/s 132(1) along with questionnaire we have heard both the parties and perused the material available on record served upon the assessee and the assessee through its authorized representative attended the proceedings from time to time and filed necessary details and produce books of accounts. The Assessing Officer assess the income at Rs. 1,18,89,120/- as against income of Rs. 9,08,750/- as per order u/s 153A/143(3) dated 30/03/2016, thereby making addition of Rs. 1,09,80,369/- on account of bogus exempt long term capital gain
Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) allowed the appeal of the assessee.
The Ld. DR submitted that the CIT(A) erred in law in deleting the addition of Rs. 95,16,400/- made by the Assessing Officer on account of gain on sale of investment. The Ld. DR relied upon the Assessment Order.
The Ld. AR relied upon the order of the CIT(A) and further submitted that the CIT(A) passed the order in favour of the assessee as the similar findings for Assessment Year 2011-12 & 2012-13 wherein the CIT(A) has quashed the reassessment order for both the Assessment Years relying upon the order passed in case of son of the assessee Shri Sameer Gupta. The Department has also filed an appeal for Assessment Year 2011-12 in Late Smt. Bhawna Gupta through legal heir Sh. Sameer Gupta bearing before the Tribunal and the same was dismissed by the Tribunal on the context that in the case of son of the assessee Sh. Sameer Gupta. The Hon'ble High Court has confirmed the decision of the Tribunal wherein these additions were deleted in absence of any incriminating material found during the course of search in case of completed assessments relying upon the decision of Jurisdictional High Court in case of CIT Vs. Kabul Chawla 61 Taxman.com 412. The Ld. AR further submitted that in present assessee’s case as well no incriminating material was found during the course of search. Thus, the reassessment made by the Assessing Officer is invalid and assessee’s case is squarely covered by the order of the Tribunal in assessee’s own case for Assessment Year 2011-12 as well as order passed by the Jurisdictional High Court in case of Son of the assessee Sh. Sameer Gupta . The Ld. AR relied upon the following judgments:-
� Principal CIT Vs. Best Infrastructure India Pvt. Ltd. 397 ITR 82 � Principal CIT Vs. Baba Global Ltd. 2017 (2) TMI 346 � Principal CIT Vs. Dharam Pal Pem Chand Ltd. 2017 (8) TMI 958
We have heard both the parties and perused the material available on record. It is pertinent to note that in assessee’s case for Assessment Year 2011- 12 the Tribunal has deleted these very addition as per the search and seizure conducted at Jackson Group of cases. The Tribunal in case of Son of the assessee herein held as under :-
“24. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee in the instant case has filed his original return of income on 30th March, 2012 declaring total income of Rs. 3,92,11,220/-. In response to notice u/s 153A of the IT Act, the assessee filed return in response to notice u/s 153A on 5th January, 2015 declaring the same income. The assessee in his return of income had claimed exemption of long term capital gain of Rs. 5,62,61,726/-. The assessment order was passed u/s 143(3) read with section 153A by making addition of the long term capital gain as bogus. From the order of the assessing officer, we find nowhere it is mentioned that any incriminating material was found during the course of search. The entire addition made by the AO is based on post search inquiries. There is also no ground by the revenue that any such incriminating material was found other than the statement of Shri Sundeep Gupta at the time of search. Under these circumstances, we have to adjudicate as to whether the CIT(A) has erred in deleting the addition made by the AO in absence of any incriminating material.
We find the Id. CIT(A) while deleting the addition has relied on various decisions including the decision of the Hon'ble Jurisidictional High Court in the case of CIT vs. Kabul Chawala reported in 21 taxman.com 412 (234 taxman 300). Finding of the CIT(A) on this issue has already been reproduced in the presiding paragraphs. So far as the reliance by the Ld. DR in the case of Smt. Dayawanti vs. CIT (supra) is concerned, we find the facts of that case are completely different from that of the facts of the present case. In that case the son of the assessee had categorically admitted that there were unaccounted purchase and sale of various items in Supari from different parties. He had also admitted that certain purchases are unaccounted and accordingly he had surrendered certain income. However, in the present case there is no unaccounted transaction found during the course of search. The capital gain that arose from the sale of shares are already recorded in the books of accounts and no incriminating material whatsoever was found during the course of search . Therefore, the said decision in our opinion is not applicable to the facts of the present case.
It has come to our notice subsequent to the hearing that the Hon'ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia reported in 2017 (5) TMI 1224 has held that addition cannot be made in absence of any Incriminating material and the decision in the case of Smt. Dayawanti Gupta has been duly considered. So far as the decision of Hon'ble Kerala High Court in the case of E. N. Gopal Kumar (supra) relied by the Ld. Dr is concerned, we find the said decision is of a non-jurisdictional High Court and the Tribunal is bound by the decision of the Jurisdictional High Court. Since the Hon'ble High Court in a number of cases recently has held that addition cannot be made in order passed u/s. 153A r.w.s. 143(3) in absence of any incriminating material found during the course of search in the case of completed assessments, therefore, we do not find any infirmity in the order of the CIT(A) deleting the addition in absence of any incriminating material found during the course of search.
We further find the revenue has not challenged the vital legal ground on which the Ld. CIT(A) has deleted the addition. Since the Hon'ble Jurisdictional High Court has clearly held that addition in order passed u/s 143(3)/ 153A cannot be made In absence of any incriminating material and since in the instant case, there is no evidence whatsoever on record that any incriminating material was found during the course of search and since the addition was made on the basis of certain inquiries conducted subsequent to the search on the basis of return already filed, therefore, on this issue itself addition has to be deleted. We, therefore, uphold the order of the CIT(A) and dismiss the ground raised by the revenue.”
The Hon’ble High Court in the said case held as under :-
“In this case the search took place in the premises on 03.10.2013. A notice under Section 153A was issued to the assessee which re-affirmed its earlier returns. The Assessing Officer completed the Section 153A assessment by adding amounts under Section 60A to the tune of ?5,62,61,726/- for AY 201 1-12. The CIT (A) and the ITAT concurrently granted relief to the assessee in the appellate proceedings holding that no fresh incriminating material was seized warranting the additions during the search. Both the appellate authorities relied upon the judgment of this Court in CIT v. Kabul Chaw la, 380 ITR 573. In these circumstances, the Court is of the opinion that no question of law arises as the ratio in Kabul Chawla (supra) applied. The appeal is, therefore, dismissed.”
In the present case also there is no unaccounted transaction found during the course of search. The capital gain that arose from the sale of shares are already recorded in the books of accounts and no incriminating material whatsoever was found during the course of search. Since the Hon'ble Jurisdictional High Court has clearly held that addition in order passed u/s 143(3)/ 153A cannot be made In absence of any incriminating material and since in the instant case, there is no evidence whatsoever on record that any incriminating material was found during the course of search and since the addition was made on the basis of certain inquiries conducted subsequent to the search on the basis of return already filed, therefore, on this issue itself addition has to be deleted. The issue in the present case is identical with that of the decision given by the Tribunal as the same is son of the assessee herein. In fact, now the son is representing the assessee after her death. The CIT(A) has taken proper cognizance of the same and allowed the appeal of the assessee on legal issues as well as on merit. Thus, appeal of the Revenue is dismissed.
In result, the appeal of the Revenue is dismissed. Order pronounced in the Open Court in presence of both the parties on this 17th Day of February, 2021.