TMI Blog2013 (11) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as is also evident from the assessment orders for the all the concerned six assessment years, copies whereof have been placed on record, no addition was called for in the assessment u/s 153A of the Act – Decided against the Revenue. - ITA No. 4016/Del/2011 - - - Dated:- 7-11-2013 - Shri S. V. Mehrotra And Shri A. D. Jain,JJ. For the Petitioner : Shri Salil Agarwal Shri Shailesh Gupta, Advocates For the Respondent : Smt. Veena Joshi, CIT, DR ORDER Per A. D. Jain, Judicial Member: This is Department's appeal for Assessment Year 2002-03 against the order passed by the ld. CIT (A)-III, Delhi, dated 09.06.2011, taking the following grounds of appeal:- "1. On the facts and in the circumstances of the case, the CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, search was carried on 14.02.2008 at the residential premises of the assessee and notice u/s 153A of the Act was issued on 15.01.2009. In compliance, a return of income was filed by the assessee on 09.02.2009 declaring income of Rs.11,12,890/-. However, the AO vide assessment order u/s 143(3)/153A dated 29.12.2009 determined the income of the assessee at Rs.29,19,678/-. 3. By virtue of the impugned order, the ld. CIT (A) deleted the additions made by the AO, holding them to have been made in the absence of any material found as a result of search. This action of the ld. CIT (A) has brought the department in appeal before us. 4. The fate of Ground Nos.1-3, i.e., the additions on merits, depends on the outcome of the legal issue r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uka vs. DCIT', 346 ITR 106 (AP), wherein, it has been held that the effect of insertion of Section 158BI in the IT Act w.e.f. 01.06.2003 is that the various provisions of Chapter XIV-B of the Act are made inapplicable to proceedings u/s 153A of the Act and thereby, for the purposes of Section 153A of the Act, the AO can take into consideration material other than what was available during the search for making an assessment of the undisclosed income of the assessee. 6. The ld. Counsel for the assessee, on the other hand, has placed strong reliance on the impugned order. It has been contended that in the present case, the assessment year involved is A.Y. 2002-03; that a search was admittedly conducted on the assessee on 14.02.2008; that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was issued on 15.01.2009. On 09.02.2009, in compliance, the assessee filed a return of income, declaring income as earlier returned. 8. The department contends that the assessment u/s 153A of the Act has been correctly made, whereas it is maintained by the assessee that since no incriminating material was found in the search, such assessment is bad in law. 9. As noted by the Delhi Bench of the Tribunal in 'Kusum Gupta' (supra), in 'Anil Bhatia' (supra), the Hon'ble High Court did not lay down any clear ratio to the effect that in the absence of any material found during the search, no addition can be made u/s 153A of the Act, where assessment has already been framed u/s 143 (3) of the Act or where the return filed u/s 139 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment had been completed u/s 143(1) and time limit for issuance of notice u/s 143(2) had expired on the date of search, there was no assessment pending and as such, there was no question of abatement of assessment an addition in assessment u/s 153A could be made only on the basis of incriminating material found during search [following the Special Bench decision in 'Alcargo' (supra) and that of the Bombay Bench of the Tribunal in 'Gurinder Singh Bawa' (supra) and 'Kusum Gupta' (supra)]. 10. In 'Kusum Gupta' (supra), the Tribunal noted that following the Special Bench decision in 'Alcargo', the Bombay Bench of the Tribunal in 'Gurinder Singh Bawa' (supra) held that in search assessment pertaining to the six immediately preceding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incriminating material was recovered during the search against the assessee, as is also evident from the assessment orders for the all the concerned six assessment years, copies whereof have been placed on record before us by the ld. Counsel for the assessee, no addition was called for in the assessment u/s 153A of the Act. 12. 'Gopal Lal Bhadruka' (supra) also does not further the case of the department. That decision is not applicable to the facts of the present case. Therein, it has been held that for the purposes of Section 153A of the Act, the AO can take into consideration material other than that found during the search, for making assessment of the undisclosed income of the assessee. In that case, there was evidence of payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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