TMI Blog2017 (12) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A)-I, New Delhi relevant to assessment years 2001-02 2002-03 respectively. Since the issues involved in these appeals and cross objections are common, hence, the appeals and cross objections were heard together and are being disposed of by this common order for the sake of brevity. 2. The grounds raised by the Revenue in ITA No. 3171/Del/2011 (2001-2002) read as under:- 1. The order of the Ld. CIT(A) is not correct in law and facts. 2. Whether in the facts and circumstances of the case, the Ld. CIT(A) erred in deleting the addition of ₹ 3,27,60,00/- made u/s. 68 of the Income Tax Act, 1961 by the AO in respect of share application money introduced during the year. 3. Whether in the facts and circumstances of the case, the Ld. CIT(A) erred in deleting the addition of ₹ 19,67,163/- made u/s 68 of the I.T. Act by the AO in respect of unsecured loans. 4. The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of hearing of appeal. 3. In other appeal of the Revenue, the grounds are identical, except the difference in the figures, hence, the grounds of other appeals are not reproduced for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings from time to time and filed the details. Thereafter the case was assessed at an income of ₹ 2,28,13,060/- after making certain disallowances vide his order dated 24.12.2009 passed u/s. 153C/143(3) of the I.T. Act, 1961. 5. Against the aforesaid assessment order dated 24.12.2009, assessee preferred an appeal before the Ld. CIT(A), who vide impugned order dated 25.3.2011 has partly allowed the appeal of the asseseee. 6. Aggrieved with the order of the Ld. CIT(A), Revenue is in appeal and assessee is in Cross Objection before the Tribunal. 7. At the threshold, Ld. Counsel of the assessee has stated that the Cross Objection filed by the assessee has involved the legal issue and therefore, the same may be first decided. Hence, we first deal with the Assessee s Cross Objection and adjudicate upon the legal issue. 8. Ld. Counsel of the assessee further draw our attention towards the impugned order as well as assessment order and stated that the issues in dispute relating to upholding the validity of the order of assessment passed u/s. 153C/143(3) of the I.T. Act, 1961 on 25.3.2011, is squarely covered in favor of the assessee by the decision dated 29.8.2017 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO 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 law, because this issue in dispute is now no more res-integra, in view of the decision dated 29.08.2017 of the Hon ble Supreme Court of India in the case of Commissioner of Income Tax-III, Pune vs. Sinhgad Technical Educational Society reported in (2017) 84 taxmann.com 290 (SC) as well as the decisions of the Hon ble Delhi High Court passed in the case Commissioner of Income Tax vs. Kabul Chawla reported (2016) 380 ITR 573 (Del.) and in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly 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 word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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