ACIT v. Shri Ram Vessel Scrap (P) Ltd.

Case Laws Analysis
REFERRED Suresh Ranchhodbhai Patel v. ACIT 2020 TaxPub(DT) 3859 (Ahd-Trib)
REFERRED Dy. CIT v. Shayona Land Corporation 2020 TaxPub(DT) 3855 (Ahd-Trib)
REFERRED Principal CIT-4 v. Sunrise Finlease (P) Ltd. 2017 TaxPub(DT) 5548 (Guj-HC)
REFERRED Pr. CIT v. Saumya Construction Pvt. Ltd. 2016 TaxPub(DT) 3466 (Guj-HC)
REFERRED CIT v. RRJ Securities Ltd. 2015 TaxPub(DT) 4278 (Del-HC)
REFERRED CIT v. Continental Warehousing Corpn Ltd. 2015 TaxPub(DT) 2182 (Bom-HC)

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The Tax Publishers2023 TaxPub(DT) 3190 (Ahd-Trib) IN THE ITAT AHMEDABAD WASEEM AHMED, A.M. & SIDDHARTHA NAUTIYAL , J.M. ACIT v. Shri Ram Vessel Scrap (P) Ltd. IT (SS) A No. 11/AHD/2021 17 May, 2023 Revenue by: A. P. Singh , CIT D. R. Assessee by: Biren Shah , A. R. ORDER *Waseem Ahmed A.M.* The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner (Appeals)-5, Ahmedabad (in short Learned Commissioner (Appeals)) dated 18-9-2020 arising in the matter of assessment order passed under s. 143(3) read with section 153A(1)(b) of the Income Tax Act, 1961 (here-in -after referred to as 'the Act') relevant to the Assessment Year 2008-2009. 2. The only effective issue raised by the Revenue is that the learned Commissioner (Appeals) erred in deleting the addition of Rs. 15 crores made under section 68 of the Act on account of unexplained credit of share application money and premium by holding that no assessment can be made in absence of incriminating materials. 3. The facts in brief are that the assessee in the present case is a private limited company and engaged in the business of Ship Breaking. There was a search and seizure operation under section 132 of the Act dated 17-2-2012 carried out at ship breaking group of Bhavnagar. The assessee was also part of such search proceeding. Consequence to the impugned search proceeding, the notice under section 153A of the Act was also issued to the assessee. In the assessment framed under section143(3) read with section 153A of the Act, the assessing officer made an addition of Rs. 15,00,00,000 on account of credit of share application money and its premium being unexplained cash credit under section 68 of the Act. 4. Aggrieved assessee Preferred an appeal before learned Commissioner (Appeals). 5. The assessee before the Learned Commissioner (Appeals) submitted that the proceedings under section 153A of the Act, are a special proceeding which are initiated in consequence to search proceeding under section 132 of the Act. Therefore, no addition can be made in absence of incriminating material found in the search proceeding in connection with the year under the consideration being an unabated assessment year. 6. The learned Commissioner (Appeals) after referring the judgment of Honble Gujarat High Court in case of Pr. CIT v.Saumya Construction Pvt. Ltd. (2016) 387 ITR 529 (Guj) : 2016 TaxPub(DT) 3466 (Guj-HC) deleted the addition made by the assessing officer. The relevant finding of the Learned Commissioner (Appeals) reads as under:-- The Hon'ble Gujarat High court in above referred case has categorically considered decision of Anil Kumar Bhatia (relied upon by ASSESSING OFFICER) and observed that Section 153A bears the heading 'assessment in case of search or requisition'. From the heading of section 153, the intention of the Legislature is clear, viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. Thus, while in view of the mandate of sub-section (1) of section 153A in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition, In case no, incriminating material is found, the earlier assessment would have to be reiterated. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2023 TaxPub(DT) 3190 (Ahd-Trib)

IN THE ITAT AHMEDABAD

WASEEM AHMED, A.M. & SIDDHARTHA NAUTIYAL , J.M.

ACIT v. Shri Ram Vessel Scrap (P) Ltd.

IT (SS) A No. 11/AHD/2021

17 May, 2023

Revenue by: A. P. Singh , CIT D. R.

Assessee by: Biren Shah , A. R.

ORDER

Waseem Ahmed A.M.

The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner (Appeals)-5, Ahmedabad (in short Learned Commissioner (Appeals)) dated 18-9-2020 arising in the matter of assessment order passed under s. 143(3) read with section 153A(1)(b) of the Income Tax Act, 1961 (here-in -after referred to as 'the Act') relevant to the Assessment Year 2008-2009.

2. The only effective issue raised by the Revenue is that the learned Commissioner (Appeals) erred in deleting the addition of Rs. 15 crores made under section 68 of the Act on account of unexplained credit of share application money and premium by holding that no assessment can be made in absence of incriminating materials.

3. The facts in brief are that the assessee in the present case is a private limited company and engaged in the business of Ship Breaking. There was a search and seizure operation under section 132 of the Act dated 17-2-2012 carried out at ship breaking group of Bhavnagar. The assessee was also part of such search proceeding. Consequence to the impugned search proceeding, the notice under section 153A of the Act was also issued to the assessee. In the assessment framed under section143(3) read with section 153A of the Act, the assessing officer made an addition of Rs. 15,00,00,000 on account of credit of share application money and its premium being unexplained cash credit under section 68 of the Act.

4. Aggrieved assessee Preferred an appeal before learned Commissioner (Appeals).

5. The assessee before the Learned Commissioner (Appeals) submitted that the proceedings under section 153A of the Act, are a special proceeding which are initiated in consequence to search proceeding under section 132 of the Act. Therefore, no addition can be made in absence of incriminating material found in the search proceeding in connection with the year under the consideration being an unabated assessment year.

6. The learned Commissioner (Appeals) after referring the judgment of Honble Gujarat High Court in case of Pr. CIT v.Saumya Construction Pvt. Ltd. (2016) 387 ITR 529 (Guj) : 2016 TaxPub(DT) 3466 (Guj-HC) deleted the addition made by the assessing officer. The relevant finding of the Learned Commissioner (Appeals) reads as under:--

The Hon'ble Gujarat High court in above referred case has categorically considered decision of Anil Kumar Bhatia (relied upon by ASSESSING OFFICER) and observed that Section 153A bears the heading 'assessment in case of search or requisition'. From the heading of section 153, the intention of the Legislature is clear, viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. Thus, while in view of the mandate of sub-section (1) of section 153A in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition, In case no, incriminating material is found, the earlier assessment would have to be reiterated.