M/S OSWAL FAB KNITS LTD.,LUDHIANA vs. DCIT, CC- 1,, LUDHIANA

The common issue involved in all the appeals is relating to the addition made by the AO under Section 68 of the Income Tax Act, 1961 treating the share application money received by the assessee as unaccounted income of the assessee.

At the outset, the ld. Counsel for the assessee has brought our attention to the relevant Paper Book pertaining to for assessment year 2009-10 in the & ITA 25/CHD/2022 A.Y. 2009-10, 2010-11 3 case of Oswal Trends P.Ltd. At page 11 of the said Paper Book, there is a copy of the acknowledgement of filing of the return of income. A perusal of the said acknowledgement reveals that the return of income for the said assessment year 2009-10 was filed by the assessee on 01.09.2009.

The ld. Counsel for the assessee has further invited our attention to the relevant acknowledgement of return in the case of the assessees for assessment year 2010-11. The & ITA 25/CHD/2022 A.Y. 2009-10, 2010-11 4 return of income in the case of Oswal Trends (ITA 428/CHD/2021) was filed on 21.09.2010.

Admittedly, search action was carried out in the case of the assessee on 10.05.2012. On the said date of search, the assessment in all the captioned cases was non abated/completed.

A perusal of the assessment order in all these cases would reveal that a common assessment order has been passed by the AO in all these cases. Only the quantum of additions differ for each assessee and assessment year. The additions, as observed above, have been made treating the share application money received by the assessee as unaccounted income of the assessee. These additions have been made by the AO by way of re-appreciating the information and evidences on record. No incriminating ,426,427,428/CHD/2021 & ITA 25/CHD/2022 A.Y. 2009-10, 2010-11 5 material, whatsoever, was found during the course of search action. The issue is squarely covered by the recent decision of the Hon'ble Supreme Court in the case of PCIT Vs Abhisar Buildwell (P) Ltd. (2023) 149 taxmann.com 399, wherein it has been held by the Hon'ble Supreme Court that no addition can be made in the absence of any incriminating material found during the course of the search action in the case of non abated/completed assessment on the date of search. In view of the said law laid down by the Hon'ble Supreme Court, the impugned additions are not sustainable in these cases. is the appeal filed by the Revenue. The AO had deleted the addition of Rs.2,39,40,000/- on account of share application money received by the assessee. It is pertinent to mention here that out of the total addition made by the AO of Rs.5,59,40,000/-, the ld. CIT(A) had sustained the addition to the extent of Rs.3,20,00,000/- and deleted the remaining addition of Rs.2,39,40,000/-. The assessee had filed the appeal against the order of the ld. CIT(A) against the sustenance of the addition whereas the Revenue had come in appeal against the action of the ld. CIT(A) in deleting the addition. ,426,427,428/CHD/2021 & ITA 25/CHD/2022 A.Y. 2009-10, 2010-11 6

In view of our observations above, since no incriminating material was found during the course of search action and the assessment in all these cases stood completed/ non-abated on the date of search action, therefore, the impugned additions made by the AO are not sustainable in view of the law laid down by the Hon'ble Supreme Court in case of PCIT Vs Abhisar Buildwell P.Ltd. (supra).