M/S OASIS DISTILLERIES LTD.,INDORE vs. DCIT, CC-II, LUDHIANA
In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that if no incriminating material is found during a search, additions cannot be made under section 153A for an already concluded assessment. The lower authorities' decision to make additions was not justified.
What were the facts?
The assessee's assessment for the year 2009-10 was completed. A search action was conducted, but no incriminating material was found. Subsequently, additions were made under section 153A based on share capital.
What were the issues?
Whether additions can be made under Section 153A when no incriminating material is found during a search for an already concluded assessment year.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(3)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. Kabul Chawla3,235 citing234 Taxmann 300 · 2016 · HC · Read judgment
- CIT v. Murli Agro Products Ltd.331 citing49 Taxmann.com 172 · 2014 · HC
- CIT v. Continental Warehousing Continental Warehousing Corporation44 citing279 CTR 389 · 2015 · HC
Income Tax Appellate Tribunal, DIVISION BENCH, CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee
against the order dated 19/06/2017 of the Commissioner of
Income Tax (Appeals)-5, Ludhiana [hereinafter referred to as
CIT(A)].
The assessee has raised the following grounds:- 1. That the Ld. CIT(A) has erred in confirming the addition of Rs. 10,00,000/- in respect of share capital u/s 68 as per para 4.2 of the order.
That the Ld. CIT(A) has failed to adjudicate the legal ground of appeal as taken before him during the course of hearing that since no incriminating
ITA No.1349/Chd/2017- M/s Oasis Distilleries Ltd., Indore 2
material had been found during the course of search conducted on 21/22 October, 2010 and, as such, the addition of Rs. 10 lacs as confirmed on account of unsecured loan is not called for.
That the Ld. CIT has failed to appreciate the judgement of the jurisdictional ITAT, Chandigarh Bench and of the various High Courts including the case of Kabul Chawla and others and if no incriminating material found during the course of search, then, the addition cannot be made. \ 4. Notwithstanding the above said ground of appeal, the ld CIT(A) has erred in confirming the addition of Rs. 10 lacs as per para 4.2 of the order.
That the confirmation of addition as made by the CIT(A) is against the facts and circumstances of the case.
At the outset, the Ld. Counsel for the assessee has
submitted that the facts and issue involved in this appeal are
relating to the additions made which were not based on any
incriminating material found during the search are squarely
covered by the decision of the Tribunal in the own case of the
assessee relating to assessment year 2007-08 in ITA No.
643/Chd/2015 & others.
The Ld. Counsel for the assessee has submitted that the
original return in this case was processed u/s 143(1) of the Act.
Thereafter, a search action was carried out at the premises of
the assessee u/s 132 of the Income-tax Act, 1961 (in short 'the
Act') on 21.10.2010 but no incriminating material was found
during the search. Thereafter, the assessment proceedings were
ITA No.1349/Chd/2017- M/s Oasis Distilleries Ltd., Indore 3
carried out u/s 153A of the Act and the Assessing officer has
made the impugned additions but not based on any incriminating
material found during the search action. The Ld. counsel, has
submitted that since the original assessment proceedings already
stood completed in this case on the date of search and that since
no incriminating material was found during the search action,
the Assessing officer was precluded from making any addition
or opening up an issue, in relation to already concluded
assessment proceedings and, hence, no additions were warranted
in the year under consideration in the assessment proceedings
carried out u/s 153A of the Act. He in this respect has relied
upon various judicial decisions including the decision of the in
the Hon'ble Bombay High Court in the case of ‘CIT Vs. Murli
Agro Products Pvt Ltd’, (2014) 49 taxman.com 172 (Bom.), ITA
No.36 of 2009 and in the case of ‘CIT Vs. Continental
Warehousing Corporation’ ITA No. 523 of 2013 reported in
(2015) 279 CTR 0389 (Bombay) and of the Hon'ble Delhi High
Court in the case of ‘CIT Vs. Kabul Chawla’ 234 Taxman 300
(Delhi) and subsequent decision of the Delhi High Court in the
case of ‘Principal CIT Vs. Meeta Gutgutia Prop M/s Ferns ‘N’
Petals”, ITA 306/2017 and others decided vide order dated
25.5.2017.
The Ld. DR has also been fair enough to admit that no
incriminating material was found in the case during the search
ITA No.1349/Chd/2017- M/s Oasis Distilleries Ltd., Indore 4
action and that the facts and issue involved are squarely covered
by the aforesaid decisions.
We find force in the contention of the Ld. AR.
Admittedly, the assessment for the year under consideration
stood completed on the date of search. No incriminating
material whatsoever in relation to the share application money
was found. It has been time and again held by the various
High Courts that if no incriminating material is found during
the search action, the addition in the case of already concluded
assessment cannot be made while framing assessment u/s 153A
of the Act. Reliance in this respect can be placed in the case of
‘CIT Vs. Continental Warehousing Corporation’ ITA No. 523 of
2013 reported in (2015) 279 CTR 0389 (Bombay) and of the
Hon'ble Delhi High Court in the case of ‘CIT Vs. Kabul Chawla’
234 Taxman 300 (Delhi).
We find that the case of the assessee is squarely covered
by the aforesaid decisions. The aforesaid decisions have been
further affirmed by the decision of the Delhi High Court in the
case of ‘Principal CIT Vs. Meeta Gutgutia Prop M/s Ferns ‘N’
Petals”, ITA 306/2017 and others decided vide order dated
25.5.2017. The aforesaid case laws can be well applied to the
facts and circumstances of the case in hand. In view of this, we
do not find any justification on the part of the lower authorities
for making addition on account of share application money for
the year under consideration.
ITA No.1349/Chd/2017- M/s Oasis Distilleries Ltd., Indore 5
In view of this, the appeal of the assessee is hereby allowed
Order pronounced in the Open Court
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 11.05.2018 Rkk
Copy to: • The Appellant • The Respondent • The CIT • The CIT(A) • The DR
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