TMI Blog2017 (7) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... e search and therefore, in absence of any incriminating material relating to gift found during the course of search, we hold that such an addition cannot be roped in while completing the reassessment u/s 153A. Above finding given in the AY 2004-05 will apply mutatis mutandis and accordingly, appeal for assessment year 2005-06 is allowed in favour of assessee. In the appeal for the AY 2001-02, the addition relates to opening balance as on 01.04.2001 as reflected in Balance Sheet. For this addition also, from the perusal of the assessment order, it is quite apparent that no incriminating material has been found during the course of search that the opening balance as shown in the balance sheet as on 31.03.2001 in the form of cash in hand or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of the appellant U/S 153A 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 Smt. Shashi 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. 3. At the outset, the ld. Counsel for the assessee submitted that so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess any such income emanating from either the seized material or the return of income. 5. We have heard the rival contentions and perused the relevant finding given in the impugned orders. Here in this case, original return of income was filed on 14.02.2005 wherein the gifts amounting to ₹ 19,17,443/- was duly disclosed and such a return of income had attained finality at the time of search which took place on 28.02.2007. Thus, in view of the second proviso to section 153A, such assessment will not get abated, because no assessment or reassessment was pending on the date of initiation of search. Admittedly no incriminating material qua the gifts was found during the course of search so as to tinker with already completed assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 153 A only on the basis of 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 were not produced or not already disclosed or made known in the course of original assessment. [ Emphasis added is ours] Moreover, we find that on similar fact and on same issue in the case of Shashi Puri (wife of late Shri Vinay Puri), the Tribunal has reached to a similar conclusion. Thus, we hold that in absence of any incriminating material found during the course of search qua the gifts disclosed in the original return of income, no addition can be made in the assessment made u/s 153A. 6. In the result, the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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