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TMI Blog2017 (3) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in partly allowing the appeal as he ought to have fully allowed the appeal. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in not giving a finding that wherever the cash payments did not exceeds Rs. 20,000/-, no disallowance can be made u/s. 40A(3). 4. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in holding that "wherever he land is shown as work in progress, to extent of disallowance u/s. 40A(3), will reduce. This view is in conformity with the decision of the Hon'ble Supreme Court in the case of Attar Singh. In case where land is shown as investment, however, subsequently it is converted into stock-in-trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(A), the Assessee is in appeal before the Tribunal. 5. During the hearing, Ld. Counsel of the assessee has filed a Paper Book containing pages 1 to 37 having the copy of the assessment order of M/s Marichika Properties Pvt. Ltd. for AY 2009-10 dated 3.7.2012; copy of order of Ld. CIT(A) for AY 2009-10 dated 26.7.2013; copy of grounds of appeal filed by the assessee as well as by the Department before ITAT; copy of order passed by the ITAT, Delhi Bench in the case of M/s Marichika Properties Pvt. Ltd., dated 30.10.2015 and stated that the issues in dispute in the present case are exactly similar and identical to the case of M/s Marichika Properties Pvt. Ltd. for AY 2009-10 by the Tribunal on 30.10.2015 wherein the various decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961, because no incriminating material or evidence had been found during the course of search so as to doubt the transactions. It was noticed that as on the date of search i.e. 21.1.2011, no assessment proceedings were pending for the year under consideration and the AO was not justified in disturbing the concluded assessment without there being any incriminating material being found in search. In fact, 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. Therefore, in our considered opinion, the action o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... group on which the search and seizure operation was carried was similar i.e. Amtek Group of Cases.
8. Respectfully following the precedent of the Hon'ble Jurisdictional High Court in the case of CIT vs. Kabul Chawla, as aforesaid, we allow the appeal of the Assessee, because AO has completed the assessment and made the addition in dispute without any incriminating material found during the search and seizure operation and the addition in this case was purely based on the material already available on record. Hence, the addition in the case is deleted and the ground raised by the assessee in the appeal is allowed.
9. In the result, the Appeal filed by the Assessee stand allowed.
Order pronounced in the Open Court on 03/03/2017. X X X X Extracts X X X X X X X X Extracts X X X X
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