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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI AMIT SHUKLA & SHRI RAMIT KOCHAR
ITA No. : 441/Mum/2010 (Assessment year: 2005-06) Smt. Manisha A Doshi, Vs ACIT, 101, Meeras Apartment, 51st Central Circle 12, TPS Road, Borivali (West), Aayakar Bhavan, Mumbai -400 092 Mumbai �थयी लेखा सं.:PAN: AAJPK 7809 C अपीलाथ� (Appellant) ��यथ� (Respondent) Appellant by Shri Abani Kanta Nayak : Respondent by : Dr. P Daniel सुनवाई क� तार�ख /Date of Hearing : 02-11-2015 घोषणा क� तार�ख /Date of Pronouncement : 30-11-2015 आदेश ORDER अिमत शु�ला, �या. स.: PER AMIT SHUKLA, JM: The above appeals have been filed by the two different assessees against separate impugned orders of even dated 09.11.2009, passed by the CIT(A) -37, Mumbai, for the quantum of assessment passed u/s 153A r.w.s. 143(3) for the assessment year 2005-06.
2 Smt. Neeta R Doshi, Smt. Manisha A Doshi
Since the issues involved in both the appeals are common arising out of identical set of facts, therefore, they were heard together and is being disposed off by way of this consolidated order.
In the grounds of appeal, in the case of both the assessees various grounds have been raised for challenging the addition made u/s 68 by treating the sale proceeds of shares as income from undisclosed sources, instead of long term capital gain shown by the assessee. Apart from the grounds raised on merits of the addition, the assessee has raised legal ground by way of additional ground in both the appeals through separate petition dated 25th October, 2013. The said additional grounds in both the cases are same except for variation in figures. For the sake of ready reference, additional ground in the case of Smt. Neeta R Doshi is reproduced here under:- “That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the addition of Rs. 79,40,648/- in the assessment u/s 153A of the I.T. Act as no relevant or incriminating material or evidence was found or seized during the course of search reflecting undisclosed income”.
4. For the sake of convenience, brief facts qua the legal issue raised vide additional ground in the case of Smt. Neeta R Doshi is that, a search and seizure action u/s 132(1) was carried out in the case of Doshi Group and connected persons on 17.01.2007. The assessee’s premise was also covered under the said search. The AO in his order has noted that the main allegation against the assessee and the group/family members was that, they have obtained accommodation entry of artificial capital gain by manipulating the share transactions. It was on account of this allegation that has lead to search and seizure action in the case of the assessee.
5. The assessee had filed her return of income for assessment year 2005-06, u/s 139(1) on 26.08.2005, declaring total income of 3 Smt. Neeta R Doshi, Smt. Manisha A Doshi Rs.22,77,047/-, which was accepted u/s 143(1) on 24.01.2006. The said return of income had attained finality as no notice u/s 143(2) was issued, the time limit of which had expired on 31.08.2006. When the search and seizure action had taken place on 17.01.2007, the assessment for the assessment year 2005-06 was not pending, that is, it has attained finality and was unabated in terms of 2nd proviso to section153A. In pursuance of notice u/s 153A, the assessee filed her return of income on 07.03.2008 declaring total income of Rs. 22,88,190/-. In pursuance thereof, the assessment has been completed after making the addition of Rs. 79,41,000/- which consisted of unexplained income from undisclosed sources of Rs. 75,65,522/- on account of bogus long- term-capital-gain and unexplained expenditure u/s 69C on account of alleged remuneration towards purchasing of long-term- capital gain of Rs. 3,78,126/-.
6. Before us, Ld. Counsel submitted that, during the course of extensive search and seizure action, nothing incriminating material was found relating to such alleged bogus long-term-capital-gain. Once, no such incriminating materials have been found then under such circumstances, no addition can be roped in the assessment made u/s 153A. In support of his contention, he strongly relied upon the decision of ITAT Special Bench in the case of All Cargo Global Logistics Ltd. vs DCIT, reported in 137 ITD 237 which has now been affirmed by the jurisdictional High Court in the same case now reported in 374 ITR 645. He further submitted that in the return of income field for the earlier years, the assessee has duly disclosed the purchase of shares; transfer of share certificate in the name of the assessee; date of dematerialization; and various dates of sale of shares along with the documentary evidences. Thus, right from the stage of purchase of shares to the stage of sale of shares, all the material facts stood duly disclosed in the return of income. Nothing incriminating have been found 4 Smt. Neeta R Doshi, Smt. Manisha A Doshi during the course of search so as to remotely suggest that these share transactions were bogus or sham. During the course of search, a statement on oath of assessee’s husband, Shri Rajesh R. Doshi was recorded, wherein he was told about the names of various companies and was required to tell, whether he or his family members have dealt in the script of the said companies or not. In answer to that, he accepted that shares of M/s Robinsons Impex were traded in the name of his wife, Neeta R Doshi. When he was further confronted that the brokers through whom he has transacted with, have stated that they were issuing bogus bills, the assessee’s husband in response stated that if that is so, then in order to buy peace, he will declare the said gain on account of capital gain as income of the said year. He drew our attention to Q. No. 8, 9 and 10 of the Statement recorded on 18.01.2007. However, he submitted that such a statement cannot lead to an interference that there is an incriminating material, because there is no specific physical evidence or material found during the course of search, except for statement of the assessee’s husband that the scripts in which the assessee had transacted through the brokers were stated to be bogus by the Search party. Ld. Counsel further brought to our notice that in a subsequent statement recorded on oath of her husband, Shri Rajesh Doshi on 22.02.2007 by the Investigation Wing itself, he categorically denied that such a transaction of shares was not sham or bogus, rather was purely a genuine transaction and has stated that he has all the bills, contract notes and documents to prove the genuineness of the transaction and therefore, the said gain on shares will not be offered as income. He referred to the said statement which is appearing at pages 194 to 195 of the Paper book. Thus, he submitted that in wake of such a rebuttal and the statement, now it cannot be held that there is any evidence which can be said to have been found during the course of search. Thus, the addition 5 Smt. Neeta R Doshi, Smt. Manisha A Doshi ITA No 441/Mum/2010 made by the AO should be deleted being beyond the scope of section 153A.
7. On the other hand, Ld. DR submitted that, there was specific information gathered during the course of search of Mukesh Choksi and group about the bogus transaction of shares which has led to search and seizure in the case of the assessee and the assessee has admitted at the time of search to surrender the LTCG. Even if the said statement has been rebutted later on, that does not mean, that there was no material found during the course of search and therefore, such an addition cannot be deleted on the ground that the same does not relate to any material or evidence found during the course of search.
We have heard the rival contentions and perused the relevant material placed on record qua the legal issue raised vide additional ground raised
by the assessee. Since, the additional ground is purely a legal ground arising out of facts and materials on record and which goes to the very root of the additions made, therefore, such an additional ground is being admitted for adjudication. It is an undisputed fact that, assessee had filed her return of income for the AY 2005-06 on 26.8.2005, which was accepted u/s 143(1) on 21.04.2006. The last date of issuance of notice u/s 143(2) for framing the scrutiny assessment had also expired on 31.08.2006 and thus, in this manner as on 1st September, 2006 the assessment of the assessee for the AY 2005-06 had attained finality. On the date of search on 17.01.2001, the said assessment cannot be held to be abated in terms of second proviso to section 153A, as the same was not pending. Now, it is trite law especially within the jurisdiction of Hon’ble Bombay High Court that, if the assessment of the assessment year falling within six years in terms of section 153A, has attained finality, that is, it does not abate at the time of search, then no addition can be made in the assessment framed
6. Smt. Neeta R Doshi, Smt. Manisha A Doshi u/s 153A, unless some incriminating material or evidence is found during the course of a search qua that addition over and above the income which has already stood assessed. Here in this case, we have to examine whether there is any material or evidence found during the course of search relating to the addition made, that is, the transaction of shares on which long term capital gain has been shown has been found to be bogus or sham. Admittedly, during the course of search and seizure action in the case of the assessee, no physical evidence or material was found from the premises of the assessee, which can be said to be “incriminating” so as to suggest that the transaction of shares of M/s Robinson Impex is sham or there was any accommodation entry given by the broker company. The only material or evidence which can be said to have been gathered, was in the form of a “statement” of assessee’s husband, Shri Rajesh R Doshi, who while answering to question No. 8, 9 & 10 had stated as under :-
Q.8 I am showing you names of 26 Companies ie. Q Robinson World Ltd 2) Database Finance Ltd. 3) Fast Track Entertainment Ltd. 4) WSL Ltd. 5) G Tech Info Trading Ltd. 6)Mantra Online Ltd 7) Herald Commerce Ltd. 8) Rashel Agrotech Ltd 9) Praneta Industries Ltd 10) Inter World Com Ltd. 11) Mega Corporation Ltd. 12) Suryadeep Salt & Chemical Ltd. 13) Shakun Construction 14) Kailash Ficom Ltd. 15) Kokan Tyres Ltd. I 6)Foto Quick India Ltd. 17) Osial LPG Bottling Ltd.18) TSL Industries Ltd. 19)Baffia Engg. Projects Ltd. 20)Bolton Properties Ltd. 21)Prime Capital Ltd.22)Hindustan Stockland Ltd. 23)Highland Industries Ltd, 24) Pushpanjali Floriculture Ltd. 25) Offshore Finvest Ltd.26)Somplast Leather Indo Pvt Ltd. Please state whether you or your family members have dealt in the scrips of the above stated companies in the last six years. Ans.: Yes. In the Financial Year 2004-05 I have earned capital gain to the tune ofRs.40,93,071/- and my wife Smt. Neeta R Doshi earned capital gain of Rs.74,85,933/- on the sale shares of M/s Robinson Impex.
QNo.9 Please give the name of the party/broker from whom you have purchased the shares M/s. Robinson Impex and also state the consideration you have paid for these shares.
7 Smt. Neeta R Doshi, Smt. Manisha A Doshi Ans.: I have purchased 25000 shares paying the consideration amount of Rs.38,000/- and my wife has purchased 50000 shares paying the consideration of Rs.76,000/- Name of the broker DPS Share and Stock Broker, Stock Exchange building, Fort, Mumbai.
Q No. 10 Do you know the broker DPS the name you have stated has stated in his statement on oath that he has issued BOGUS BILL to the party on their request, no genuine transactions was ever done. Please comment.
Ans.: I was not aware about the above fact. If it is so to buy peace of mind I along with my wife shall be declaring Rs. 40,93,071/- and Rs. 74,85,933/- as our income for the said year”
From the above statement it can be inferred that the revenue is not referring to any physical evidence while putting up the question to the assessee’s husband, but has merely informed him that the brokers through whom he had purchased the shares had admitted that they have issued bogus bills and no genuine transaction was done. In response, the assessee’s husband had stated that if that is so, then in order to buy peace he will offer the income of the said year. There is no admission by assessee’s husband on the basis of any material found during the course of search the shares purchased or sold were sham. Now, in any case, such a statement given has no evidentiary value to be reckoned as incriminating material as the same has been rebutted in the second statement recorded on oath by the Investigation Wing on 22.01.2007. In this statement the assessee’s husband has denied the earlier statement and he categorically stated that, the transactions of the shares are completely genuine. The said question and answer for the sake of ready reference are reproduced below:- Q.No.4. In answer to Q.No.8 of your statement recorded on 19.1.2007, you had stated that you have earned capital gain to the tune of Rs.40,93,071/- and your wife Srnt. Neeta R. Doshi earned capital gain of Rs.74,85,533/- on the sale of shares of M/s. Robinson Impex Ltd. Is it true? Ans.: Yes.
8 Smt. Neeta R Doshi, Smt. Manisha A Doshi Q.No.5. How do you came to know about this company and what prompted you to purchase the shares of this company? Ans.: I came to know about this company from the market.
Q.No,6. What you came to know about this company? Ans. : The share was available for throwaway price of Rs.1.50/- against the book value of Rs.11/- per share.
Q.No.7. What evidence you have got to show that the book value was Rs.11/- which prompted you to purchase the shares? - Ans.: I had visited the website bseindia.com or any financial website referred at %\that time from which I came to know about the book value. Q.No.8. How you have purchased the shares ? Ans : I have purchased the shares from M/s. DPS Shares of Robinson Impex Ltd.?
Q.No.9. How do you know them? Ans : I know them through my brother, Mr. Ajay Doshi.
Q.No.10. Have you given advice to other people also for buying the shares of Robinson Impex Ltd.? Ans : I had given the suggestion of the information available and discussed with my brother. Mr. Brijesh Shah.
Q.No.11. In M/s. DPS Shares & Securities Pvt. Ltd with whom have you contacted? Ans.: I have contacted through my brother Ajay Doshi.
Q.No.12. What was the method of purchasing the shares. Please Explain in detail. Ans.: I had purchased physical shares through Off market operations on 4.4.2003.
Q.No.13. Who gave you delivery of shares and when ? Please produce the proof. Ans.: I got delivery of shares from Broker on 6.4.2003. I had received bill along with the delivery of shares.
Q.No.14. As informed to you on 19.1.2007, during the course of search action at your residence, there was a survey action on M/s. DPS Shares & Securities Pvt. Ltd on 18.1.2007. During the course of action; they have stated on oath that they have issued only bogus bills for accommodation in the case of Robionson Impex Ltd; they have not handed over any shares to anybody, that they have no contact with any of the beneficiaries. What do you have to say since you have stated that you have received shares from M/s DPS Shares & Securities Pvt Ltd and payment has been given to them? Ans.: I deny his statement 9 Smt. Neeta R Doshi, Smt. Manisha A Doshi Q.No.15. When you are denying the statement of M/s. DPS Shares & Securities Pvt. Ltd, the suns of proving your innocence lies on you ? How are you going to prove your innocence? Ans. : To prove my innocence, I have bills and contract notes from M/s. DPS Shares & Securities Pvt. Ltd. Q.no.16. Mr. Rajesh Doshi, you are repeatedly telling the same old story. I have told you, I have shown you the statement on oath given by M/s. DPS Shares & Securities Pvt. Ltd as under: "as stated above, these transactions were - only accommodation bills, given by us in the name of ultimate beneficiaries as required by Shri. Naresh Saboo and Shri Naresh Jam. We have never handed over these bills to the beneficiaries directly. In fact, we won't be able to recognize the beneficiaries to whom we have issued the bills. We are not in a position even to give the distinctive numbers of the shares as in reality, no transaction was done on the B5E Further, in answer to Q.No.15, MIs. DPS Shares & Securities Pvt. Ltd. has stated that they have not accepted or paid any cash regarding the whole operation from anybody except for the commission @ 1 paise per share in cash from Shri Naresh Saboo. Considering the above submission, I am asking you once again about the correct position of your transaction and your comments. Ans.: I comment that these transactions were genuine.
Q.No.17. What is the criteria to find out whether a transaction is genuine or not? Since you are in the market for the last 12 years, I expect a reasonable answer from you. Ans.: The criteria of genuineness of transaction is contract bills and shares.
Q.No.18. Mr. Doshi, I am talking about the same contract notes and bills which has been stated by M/s. DPS Shares & Securities Pvt. Ltd who have issued the same and stated that they have bogus bills. I am once again asking you if you are considering the bills and contract notes are the criteria to determine the genuineness of a transaction, in the above context, what you have to say. Ans.: I have got nothing to comment other than those stated above.
Q.No.19. In your statement on 19.1.2007, a question was put at Q.Nc.10 as under "Do you know the broker M/s. DPS Shares & Securities Pvt. Ltd, the name you have stated has stated in his statement on oath that he has issued bogus bill to the party on their request, no genuine transaction was ever done. Please comment." You have answered as under :- I was not aware about the above facts. If it is so to buy peace of mind, I along with my wife shall be declaring 10 Smt. Neeta R Doshi, Smt. Manisha A Doshi Rs.40,93,0711- and Rs.74,85,933/- as our income for the said year." Now, please tell me exactly how you have determined the transactions are genuine since you were in doubt as on 19.1.2007. Ans.: I had no doubt on 19.1.2007 also. I had gone through my transactions which was found to be genuine as I had purchased these shares, received bills, contract notes, shares transferred in my name, shares have also been dematerialized into my account for approximately six months which proves my genuineness.
Q.No.20. I have repeatedly told you that the contract note and bill you have produced of M/s. DPS Shares & Securities Pvt. Ltd and I elaborately explained to you and even shown their sworn statement wherein they have categorically told that they have issued any bogus accommodation bills to the beneficiaries to whom they are not even directly knowing. They have also denied having handed over any shares to any beneficiary or even acceptance of cash whereas lnspite of my repeated questions you are not able to produce concrete proof as to whom you have made the payments and how you have received the snares. In the circumstances, I 11•• am giving one more chance either to prove with proof the genuineness of the transaction or prove with any other method what you have stated above is true, instead-of simply making statements. Ans.: For further proof. I will be submitting the photocopy of shares transferred in my name.
Q.No.21 Kindly explain to me the content of a bill and the content of a contract note if it is a genuine transaction. This question is put to you because you are in this trade for more than 10 years? Ans.: The contents of a bill are scrip name, date, quantity, rate, amount. The contents of a contract note are Order No., Trade No., Trade Time, quantity, scrip name, net rate and other charges.
Q.No.22. Please explain what is order no., what is trade No., and Trade time and how this data is obtained/created?. Ans : Order number is the serial Number of the transaction. Trade No. represents serial number of the transaction taken place at the Exchange. Trade time represents the time at which this transaction takes place.
Q.No.23 Do you agree that this information will be available when the transactions have taken place genuinely through Exchange, since the details are meant for identification of the dealing struck at Exchange. Ans.: Yes.
Q.No.24. Now, I would request you to go through the alleged contract note and bill produced by you and emphatically 11 Smt. Neeta R Doshi, Smt. Manisha A Doshi stated by you as genuine after a gap of one month i.e. from 19.1.2007 to 22.2.2007 and please state in your case which is an off market operation, how could these details appear in the bill/contract. You may consider the answer to Q.No.22 while replying this question? Ans.: The said details should not been in off market contract. I do not know how it appeared”.
Date Particulars Debit Credit Balance 08/04/03 Bill no. G/007/000027 38044.52 38044.52 08/04/03 Bill No. 18.28 G/007/000031 38026.24 15/04/200 Vatav Kasar Ans: yes. This is our ledger copy”.
Now, from this statement it is amply evident that the assessee has not only rebutted the earlier statement but has shown how the transactions of shares are genuine and nothing is bogus. After such a statement Investigation wing has not confronted to the assessee or referred to any material or evidence during the statement that what has been stated is contrary to the material found. If the earlier statement of the assessee’s husband was not backed by or corroborated by any evidence and later on such a statement have been retracted or rebutted categorically before the same authority, then it completely loses its evidentiary value, unless there is some material to show that such a retraction or rebuttal is not correct. Hence, adverse presumption on basis of first statement cannot be drawn against the assessee qua the scope of assessment and addition made therein on assessments which are unabated. After retraction or rebuttal of statement the onus shifts upon the revenue to show that such a retraction is not correct and is contrary to the material or evidence found during the course of search. Here in this case, admittedly, there is no evidence or material which has been gathered during the course of search to point out that the purchase and sale of shares undertaken by the assessee were sham or bogus. In any case, the purchase and sale of shares have already been disclosed in the return of income alongwith all the evidences, and therefore, to 12 Smt. Neeta R Doshi, Smt. Manisha A Doshi doubt the genuineness of the transaction in subsequent years, one has to prove on the basis of certain evidences found that these transactions are bogus. Thus, we agree with the contention of the Ld. Counsel that there was no incriminating material or evidence found during the course of search qua the addition made by the AO, therefore, such an addition is beyond the scope of section 153A.
If we read the relevant provisions of section 153A along with the provisos thereto it can be seen that the second proviso carves out an exception or puts a condition that the pending assessment or reassessment relating to any assessment year following within the period of six years on the date of search, the same will get abated. In other words, the assessments which have not attained finality and are pending on the date of search, then the same does not gets abated. The assessments which have abated, fresh determination of total income would be required which can be made on the basis of material already on record as well as material gathered during the course of search. However, the assessments which have already attained finality and do not get abated, then they have to be assessed on the same income and cannot include any type of income or addition for which no incriminating material has been found. The reason being that the assessments which are pending and get abated, the entire income has to be determined which includes material already on record and also the material found as a result of search. However, statute has carved out the exception to those assessments which have attained finality, because those assessments do not get abated. In such a situation, the income which has already been assessed, the same cannot be disturbed unless some incriminating information or material is found suggesting that the income which already stood assessed requires to be reassessed on the basis of new material found. This proposition has been upheld and clarified by the Hon’ble 13 Smt. Neeta R Doshi, Smt. Manisha A Doshi jurisdictional High Court in the case of Murli Agro Products Ltd. in the following manner:- “10). Thus on a plain reading of Section 153A of the Income tax Act, it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalized for those assessment years covered' under were contrary to the facts unearthed during the course of 153 A proceedings. 13) In the present case, there is nothing on record' to suggest that any material was unearthed during the search or during the 153A proceedings which would show that the relief under Section, 80HHC was erroneous. In such a case, the A.O. while passing the assessment order under Section 153A read with Section 143(3) could not have disturbed the assessment order finalized on 29.12.2000 relating to Section 80 HHC deduction and consequently the CIT could not have invoked jurisdiction under section 263 of the Act.” The principle and the ratio reiterated in para 12 of the aforesaid order makes it abundantly clear that, the assessing officer while passing the assessment order u/s 153A cannot disturb the assessments/reassessment order which had attained finality, unless material gathered in the course of search establishes that the earlier assessment finalized is contrary to the fact.
This principle has again been reiterated by the Hon’ble Rajasthan High Court, wherein Lordships after analyzing the entire provision of section 153A, held and concluded as under :-
“22. The underlying purpose of making assessment of total income under s. 153A of the Act is, therefore, to assess income which was not disclosed or would not have been disclosed. The purpose of second proviso is also very clear, in as much as once an assessment or reassessment is 'pending' on the date of initiation of search or requisition and in terms of s. 153A a return is filed and the AO is required to assess the same, there cannot be two 14 Smt. Neeta R Doshi, Smt. Manisha A Doshi assessment orders determining the total income of the assessee for the said assessment year and therefore, the proviso provides for abatement of such pending assessment and reassessment proceedings and it is only the assessment made under s. 153A of the Act that would be the assessment for the said year.
The necessary corollary of the above second. proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In such cases, where the assessment already stands completed, the AO can reopen the assessments or reassessments already made without following the provisions of ss. 147, 148 and 151 of the Act and determine the total income of the assessee.
The argument raised by the counsel for the appellant to the effect that once a notice under s. 153A of the Act is issued, the assessments for six years are at large both for the AO and assessee has no warrant in law.
In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under ss. 132 and 132A of the Act, it is apparent that :- (a) the assessments or reassessments, which stand abated in terms of second proviso to s. 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made.”
Earlier, the ITAT Special Bench in the case of All-Cargo Global Logistic Ltd, reported in [2012] 18 ITR (Trib) 106 has reiterated this proposition. Now, this decision of the Special Bench has now been upheld by the Hon’ble Bombay High Court since reported in [2015] 374 ITR 645, wherein, the Hon’ble Bombay High 15 Smt. Neeta R Doshi, Smt. Manisha A Doshi Court held that if there was no incriminating material found during the course of search, then within the scope of section 153A no addition can be made where the assessment are not abated and only pending assessment are open for all kind of additions including the materials found during the course of search and also otherwise. Thus, respectfully following the ratio laid down by the Hon’ble jurisdictional High Court, we hold that the addition made by the Assessing Officer and confirmed by the CIT(A) cannot be sustained because, admittedly, as discussed above no incriminating material has been found qua the addition made by the Assessing Officer in the impugned assessment year, the assessment of which had not abated. In view of our finding the adjudication on merits have become purely academic, hence we refrain from adjudicating the same.
In the result, appeal of the assessee is allowed.
In the case of Smt. Manisha A. Doshi, also, the return of income u/s 139(1) was filed on 31.08.2005, which was accepted as u/s 143(1) on 24.01.2006. The last date of issuance of notice u/s 143(2) for selection of scrutiny had expired on 31.08.2006. Hence, on the date of search i.e. on 17th January, 2007, the assessment for the assessment year 2005- 06 in the case of the assessee had attainted finality i.e. it was not pending on the date of search in terms of Second proviso to section 153A. Here in this case also, during the course of search and seizure action, nothing incriminating was found relating to transactions of shares pertaining to similar scrips of Robinson Impex India Ltd. Though the search may have been carried out the search on the basis of some information gathered from different search of unrelated person that there were share transactions which were not genuine. However, during the course of the search and seizure action in the case of the assessee, no such evidence or 16 Smt. Neeta R Doshi, Smt. Manisha A Doshi ITA No 441/Mum/2010 material have been found to show that the share transactions already disclosed in the return of income along with documentary evidences are either bogus or sham. Here in this case, there is no reference by the AO in the assessment order that assessee had admitted during the course of search that such share transaction is bogus as was in the case of Smt. Neeta R Doshi nor there is any reference of seized material found during the course of search qua the transactions of shares. Once, it has not been rebutted that no incriminating material has been found during the course of search relating to the addition made here in this case, then such an addition cannot be roped in the assessment framed u/s 153A, in view of the settled position of law reiterated by the Hon’ble Bombay High Court which has been discussed above in detail that in cases where the assessment are not abated, then addition can only be made on the basis of material or evidence found during the course of search. Thus, in this case also, the impugned addition cannot be made in the assessment passed u/s 153A r.w.s. 143(3), as no incriminating material or evidence was found during the course of search that the share transaction undertaken by the assessee was bogus or not genuine.
Since the facts and circumstances as decided in the order of Smt. Neeta R Doshi are similar to the facts and issues involved in this appeal also, therefore, following the same reasoning and legal proposition discussed therein, we decide the additional ground raised
by the assessee in favour. Consequently, the other grounds on the merits of the addition have been rendered academic.
17. In the result, both the assessees appeal stands allowed. Order pronounced in the open court on 30th November, 2015.
Sd/- Sd/- (रिमत कोचर) (अिमत शु�ला) लेखा सद�य �याईक सद�य (RAMIT KOCHAR) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER 17 Smt. Neeta R Doshi, Smt. Manisha A Doshi Mumbai, Date: 30th November, 2015 ��त/Copy to:- 1) अपीलाथ� /The Appellant. 2) ��यथ� /The Respondent. 3) The CIT(A) -33, Mumbai. 4) The CIT– 22, Mumbai. 5) िवभागीय �ितिनिध “जी”, आयकर अपीलीय अिधकरण, मुंबई/ The D.R. “G” Bench, Mumbai. 6) गाड� फाईल \ Copy to Guard File. आदेशानुसार/By Order / / True Copy / /