TMI Blog2017 (3) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-05 it is observed that intimation under section 143(1) was processed by the assessing officer on the basis of the original returns filed by and time limit for issuance of notice under section 143(2) has passed in case of both assessment years. Under such circumstances assessments had not abated as on the date of search and in the absence of any incriminating material a completed assessment cannot be interfered with, by the assessing officer while completing assessment under section 153A. In a peculiar case like this the additions has to be based on some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search, which was not produced. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on facts as well as in law in holding that the assessment order in the name of the appellant u/s 153 A is not illegal inspite of the fact that there was no separate search warrant in the name of the appellant, there being search warrant only in the joint name of the appellant and her husband Shri Vinay Puri. 2. The Ld. CIT(A) has grossly erred on facts as well as in law in holding that the assessment order u/s 153A is not illegal inspite of the fact that no incriminating material was found during the search to enable the AO to frame reassessment u/s 153A against the already completed assessment. 3. The appellant craves leave to add, alter, modify and withdraw any ground of appeal before or during the appellate proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(3) of the Act for both the assessment years under consideration. 5. Aggrieved by the orders of assessing officer assessee preferred an appeal before Ld. CIT (A). It was argued before Ld. CIT (A) that the additions made by Ld. AO are not based on any incriminating material that has been unearthed during the search proceedings. As assessment for the years under consideration has not abated there must be incriminating material for making any addition in the hands of assessee. Assessee argued that the assessment made by Assessing Officer is bad in law and without jurisdiction. Ld. CIT(A) however, decided the appeal against assessee. 6. Aggrieved by the orders of Ld. CIT (A), assessee is in appeal before us now. 7. Ld. AR sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. Ld. DR places reliance upon the orders passed by the authorities below and submitted that the assessment made by the assessing officer may be upheld. 9. We have perused the submissions advanced by both the sides in the light of the records placed before us. 10. On perusal of the assessment order for both assessment years under consideration we agree with the contentions of Ld. AR that the additions made by the assessing officer is based on the details that is available on record that is from documents like balance sheet, profit and loss account, returns filed by the assessee. It is also observed that no material has been ceased from the premises of assessee, or elsewhere, that is belonging to assessee, which could be a basis of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of CIT vs. Vegetable Products Ltd., 88 ITR 192. Following the above fundamental rule declared by the Hon ble Supreme Court, we have to follow the judgment of the Hon ble Delhi High Court also being the jurisdiction High Court, which is in favor of the assessee. Accordingly, we hold that assessing officer did not have jurisdiction to frame assessment for the years under consideration. Consequentially, we hold the assessment orders passed with reference to section 153A of the Act are unsustainable in law. Accordingly, the grounds raised by the assessee for assessment year 2001-02 and 2004-05 are allowed In the result appeal filed by the assessee for assessment year 2001-02 and 2004-05 stands allowed. Order pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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