TMI Blog2017 (1) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... njectures and surmises and hence, the additions made is not sustainable in the eyes of law, because this issue in dispute is now no more res-integra, in view of the decision dated 28.8.2015 of the Hon’ble Delhi High Court in the case of Commissioner of Income Tax vs. Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) - Decided in favour of assessee - I.T.A. No.5196/DEL/2013, C.O. NO. 63/DEL/2014 - - - Dated:- 9-1-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Revenue : Sh. S.S. Rana, CIT(DR) For The Assessee : S h . Gautam Jain, Adv. ORDER PER H.S. SIDHU : JM The Revenue has filed the Appeal and Assessee has filed the Cross Objection against the Order dated 28.6.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that since no money, bullion jewellery or other valuable article or thing or books of accounts or documents belonging to the appellant were seized as a result of search on Gee Ispat Group of cases the assumption of jurisdiction u/s. 153C of the Act was illegal, invalid and unsustainable. It is, therefore, prayed that, it be held that, assumption of jurisdiction to initiate proceedings u/s. 153C of the Act and frame assessment u/s. 153C/143(3) of the Act was not in accordance with law and thus, be held to invalid. 4. The brief facts of the case are that the case of the assessee company was centralized consequent upon an action under section 132 of the Income Tax Act, 1961 on 7.1.2010. Notice under section 153C was issued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax vs. Kabul Chawla reported (2016) 380 ITR 573 (Del.) wherein the Hon ble High Court has held that if the additions are made, but not based on any incriminating material found during search operation, then these additions are not sustainable in the eyes of law. He further stated in the present case the AO has made the addition in dispute in a proceeding under section 153C, without there being any incriminating material found during the course of the search in respect of such addition. He further stated that the additions have no relation with any incriminating material found and undisclosed income or property discovered in the course of search and as such are bad in law being beyond the scope of jurisdiction u/s. 153C of the I.T. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are beyond the scope of section 153C of the Income Tax Act, 1961, because no incriminating material or evidence had been found during the course of search so as to doubt the transactions. It was noted that in the entire assessment order, the AO has not referred to any seized material or other material for the year under consideration having being found during the course of search in the case of assessee, leave alone the question of any incriminating material for the year under appeal. We also find that the case laws cited by the Ld. CIT(DR) are not relevant to the present case. Therefore, in our considered opinion, the action of the AO is based upon conjectures and surmises and hence, the additions made is not sustainable in the eyes of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an ITA Nos. 707, 709 and 713 of 2014 of assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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