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IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI
. . , ,
BEFORE SHRI B. R. BASKARAN, AM AND SHRI SANJAY GARG, JM
./I.T.A. No. 8574/Mum/2010
( / Assessment Year: 2003-04)
Mrs. Maniben Chhadwa Asst. CIT, Central Circle-8,
602/B, 3rd Floor, Captain House, Mumbai
Dr. Ambedkar Road, Matunga (CR), /
Mumbai-400 019 Vs.
. / . /PAN/GIR No. AACPC 9095 K
( /Appellant) : ( / Respondent)
/ Appellant by : Shri Vijay Mehta
/Respondent by : Shri S. J. Singh
/ : 13.01.2015
Date of Hearing
/
: 11.03.2015
Date of Pronouncement
/ O R D E R
Per Sanjay Garg, Judicial Member :
The present appeal has been preferred by the assessee against the order of the ld.
CIT(A) dated 14.09.2010. The assessee inter alia has contested the validity of the
additions made by the Assessing Officer (A.O.) pursuant to the assessment u/s.143(3) r/w
s. 153A of the Income Tax Act, 1961 (`the Act' hereinafter).
2. The facts in brief are that a search and seizure action u/s. 132(1) of the Act was
carried out in the group cases of M/s. Sea Lifestyles Pvt. Ltd. including residential
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ITA No. 8574/Mum/2010 (A.Y. 2003-04)
Mrs. Maniben Chhadwa vs. Asst. CIT
premises of the assessee on 11.04.2007. Notice u/s.153A was issued and served upon the
assessee and thereafter the reassessment was done u/s.143(3) r/w s. 153A of the Act. The
A.O. added a sum of Rs.13,08,326/- being gift received by the assessee by way of SBI
Resurgent India Bonds worth US # 20,000/- from one Mr. Minesh Shah. The assessee
had contended before the ld. CIT(A) that the above said addition was not based upon any
incriminating material found during the course of search and that the reassessment of
already concluded assessment in the absence of any incriminating material could not be
done under law. However, the said contention of the assessee was rejected. The A.O. held
that the assessee could not prove with cogent and convincing evidence, the receipt of the
said amount of Rs.13,08,326/- and made the addition u/s.68 of the Act. The ld. CIT(A)
also confirmed the addition so made by the A.O. The assessee has thus came in appeal
before us.
3. At the outset, the ld. AR of the assessee has submitted that no incriminating
material was found during the search action, hence the reassessment in this case of the
already concluded assessment was not valid. He has also relied upon the decision of the
tribunal in the case of family member of the assessee, namely Mrs. Rakesha Chaddwa,
wherein the additions were made on identical facts and pursuant to the same search action
and also in respect of the gift of SBI Resurgent India Bonds, valuing at Rs.6,54,138/-. He
has contended that the tribunal in the case of family member of the assessee, on identical
facts and in relation to the same search action has deleted the addition on the ground that
no incriminating material was found against the assessee during the search action.
4. We have gone through the decision of the tribunal passed in ITA Nos. 8576 and
8577/Mum/2010 order dated 17.10.2014. The tribunal on the identical facts has deleted
the addition in the case of family member of the assessee Mrs. Rakesha Chaddwa,
observing as under:
`5. We have heard the rival contentions and carefully perused the record. There
is no dispute with regard to the fact that both the assessment years under
consideration fall in the category of "concluded assessments". In the various case
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ITA No. 8574/Mum/2010 (A.Y. 2003-04)
Mrs. Maniben Chhadwa vs. Asst. CIT
law relied upon by the Id. AR of the Assessee, it has been held that the AO would
be entitled to make any addition in the case of concluded assessments only on the
basis of incriminating materials found during the course of search, since the
concluded assessments do not abate by virtue of section 153A of the Act. The said
view is also supported by the decision of Mumbai Special bench of IT AT
rendered in the case of All Cargo Global Logistics Ltd (ITA NO.5108 to
5022/Mum/2010 dated 06-07-2012). Further, in the case of Shri Govind Agarwal
(supra) relied upon by the assessee, we notice that the Tribunal has placed reliance
on the decision rendered by the Hon'ble Rajasthan High Court in the case of Jai
Steel (India), Jodhpur Vis ACIT [2013] 36 taxmann.com 523, wherein the Hon'ble
Rajasthan High Court has held that "in case, nothing incriminating is found on
account of such search or requisition, then the question of reassessment of the
concluded assessments does not arise, which would require more reiteration and it
is only in the context of the abated assessment under second proviso which is
required to be assessed". For the sake of convenience, we extract below the
relevant observations made by the Co- ordinate Bench of the Tribunal in the case
of Shri Govind Agarwal (supra):
"17. Rajasthan High Court judgment in the case of Jai Steel (India) (supra),
vide para 18, it is categorically mentioned that "the requirement of
assessment or reassessment under the said section (153A) has to be read in
the context of sections 132 or 132A of the Act, inasmuch as, in case
nothing incriminating is found on account of search or requisition, then the
question of reassessment of the concluded assessments does not arise,
which would more reiteration ...........". Thus, the judgment of Hon'ble
High court in the case of Jai Steel Ltd, supra and above decisions of the
Tribunal are categorical in concluding that, in case of the concluded
assessments like the present one, the additions are made only based on the
incriminating material discovered during the search action. he facts of the
Jai Steel Ltd (supra) are identical to the present one i.e., AO made additions
by reassessing u/s 153A on the completed assessment u/s 143(1) of the Act.
Thus, considering the judgment in the case of the Jai Steel Ltd (supra), the
arguments on the legal issue raised before us stands covered. Therefore,
considering the Rajasthan High Court's judgment in the case of Jai Steels
Ltd, supra, we have no difficulty in (i) upholding the issue of notice u/s
153A of the Act and (2) in disapproving the making of the impugned
additions u/s 68 and 14A of the Act, which are not backed by the
incriminating materials. In the absence of incriminating material, the role of
the AO is only to reiterate the returned income filed in response to the
notice u/s 153A of the Act. Accordingly, in substance, the common legal
issue raised in the grounds for both the appeals of the assessee (ITA Nos.
3389 & 3390/M/2011) is allowed"
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ITA No. 8574/Mum/2010 (A.Y. 2003-04)
Mrs. Maniben Chhadwa vs. Asst. CIT
6. In the instant cases also, there is no dispute with regard to the fact that the
additions made by the AO in assessment years 2003-04 and 2005-06 are not based
upon any incriminating material found during the course of search. Further, both
the above said assessment years fall in the category of concluded assessments.
Hence, by following the consistent view taken by the various benches of Tribunal,
we hold that the impugned additions made in both the years under consideration
are liable to be deleted. Accordingly, we set aside the orders passed by the Id.
CIT(A) in both the years and direct the AO to delete the impugned additions made
in both the years.
7. In the result, the appeals filed by the assessee are allowed.'
5. The facts of the case in hand are identical. Additions in this case have also been
made in relation to gift of SBI Resurgent India Bonds for the identical reasons.
Admittedly no incriminating material was found during the search action against the
assessee. Hence, the reassessment in this case in the absence of any incriminating
material legally could not have been done of the already concluded assessment. Being in
agreement and respectfully following the decision of the tribunal on identical facts in the
case of family member of the assessee, we do not find any justification in the action of
the lower authorities in making the impugned additions. The reassessment in this case is
held to be invalid and the same is set aside. The additions so made pursuant to the
reassessment u/s.153A in this case are, therefore, ordered to be deleted.
6. In the result, the assessee's appeal is hereby allowed.
Order pronounced in the open court on March 11, 2015
Sd/- Sd/-
(B. R. Baskaran) (Sanjay Garg)
/ Accountant Member / Judicial Member
Mumbai; Dated : 11.03.2015
. ../Roshani, Sr. PS
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ITA No. 8574/Mum/2010 (A.Y. 2003-04)
Mrs. Maniben Chhadwa vs. Asst. CIT
/Copy of the Order forwarded to :
1. / The Appellant
2. / The Respondent
3. () / The CIT(A)
4. / CIT - concerned
5. , , / DR, ITAT, Mumbai
6. / Guard File
/ BY ORDER,
/ (Dy./Asstt. Registrar)
, / ITAT, Mumbai
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