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2018 (2) TMI 506

Assessment u/s 153A - Additions on account of alleged investment in jewellery - Held that:- As considered very facts from that case and variation in the gold jewellery in his case was to the extent of 269.10 grams. Similarly, variation in silver articles was of 13.43 kg. This was excess jewellry found at the time of search than the one disclosed in the wealth-tax returns filed by the assessees viz. Ganapat L. Chowdhary. Similarly, in the case of Smt.Parvati S. Chowdhary variation was of only 41. .....

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re directed at the instance of different assessees against common order of the ld.CIT(A)-12, Ahmedabad dated 22.12.2014 passed for the assessment year 2009-10. 2. Solitary grievance of the assessees is that the ld.CIT(A) has erred in confirming additions in respective hands of the assessees on account of alleged investment in jewellery. 3. With the assistance of the ld.representatives, we have gone through the record carefully. It emerges out from the record that the ld.CIT(A) has decided the ap .....

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upporting evidences, date of acquisition of jewellery along with details of jewellery including weight, nature etc., confirmation from donors who have gifted to the assessees, source of purchase of jwellery. All these assessees have filed detailed replies which have been reproduced by the AO in the respective assessment orders. In short, the case of the assessee is that they have filed their returns of wealth-tax showing possession of jewellery. There is a minor variation in the details of jewel .....

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e of Sampatraj Lalchand Chowdhary, in ITA No.32 and 33/Ahd/2015 reads as under: 1. IT(SS)A Nos. 32 & 33/Ahd/2015 are appeals by two different Assessees preferred against the very same order of the Ld. CIT(A)-12, Ahmedabad dated 22.12.2014 pertaining to A.Y. 2009-10. 2. Since the First Appellate Authority has disposed of these appeals by a common order, therefore, both these appeals were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. At the .....

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ur Co- operative Bank- Anand nagar locker no. 11 434 31.10.2011 2858.75 21 77.30 130.30 - Tamilnad bank- Locker no. 39 09.11.2011 3295.50 2640.35 16.78 - Sub Total 9792.75 6806.95 259.42 81.26 Kalupur Co- operative Bank- Anand nagar locker no. 243 14.11.2011 728.30 565.30 2.76 - Total 10521.05 7372.25 262.18 81.26 a. Firstly, it is submitted that during the course of proceedings under section 132, the follower jewellary / ornaments and valuable of my family were found at our residence and bank l .....

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ewellary purchased during the year under consideration, total Jewellary is as under: Name of the Assessee Gold Quantity- Gross Gold Quantity-Net (Gram) Diamond Jewellary (Ct) Silver Quantity (KGs) (gram) Sampatraj L. Chowdhary 1704.5 1632.27 56.01 10.5 Pushpadevi Chowdhary 2412.35 1756.5 8.08 0 Shreepal Chowdhary 498.1 498.12 26.62 37.8 Yamini 1588.3 1714.918 53.13 0 Shrenik Chowdhary 1542.9 1293.6 21.4 24.3 Archana Chowdhary 2137.4 1685.2 13.13 4.5 Sampatraj L. Chowdhary -HUP 827.2 781.7 44.119 .....

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urces of acquisition of jewellery in question. The A.O. concluded by making addition of unaccounted gold in the hands of the assessees. 7. Assessee carried the matter before the ld. CIT(A) but without any success. 8. Before us, the ld. counsel for the assessee vehemently stated that the impugned assessment is bad in law inasmuch as no incriminating material was found during the course of the search and seizure operation. It is the say of the ld. counsel that whatever jewellery was found has alre .....

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in favour of the assessee and against the revenue. The relevant findings read as under:- Once it is held that the assessment has attained finality, then the AO while passing the independent assessment order u/s. 153A r.w. s 143(3) of the IT. Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s. 153A of the Income Tax Act establish that the reliefs granted under the finalized assessment/reas .....

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ether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in limiting the scope of Sec. 153A only to undisclosed income when as per the section the AO has to assess the total income of the six assessment years?"- and the Hon ble High Court of Bombay finally held as under:- We, therefore, dismiss the Revenue s appeal and answer the substantial question of law against the Revenue and in favour of assessee. 11. Now, the other issue which has to be decided is wheth .....

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not yield any incriminating material on the basis of which it can be said that assessee was indulgent in debiting bogus land development expenses in its books of account. There is no reference of any material found in the search for making assessment u/s 153A of the Act. Thus the basic controversy before us remains about the scope of assessment u/s 153(A) when the return has been accepted u/s 143(1)(a) and time period for issuing notice u/s 143(2) has elapsed. 8. In our considered view, there i .....

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ment may not be pending even though there is no formal order u/s I43(1)(a). The moment return is filed and acknowledgement or intimation issued, the proceedings initiated by filing the return are closed, unless they are again triggered by issuing notice u/s 143(2) of the IT Act. In the case under consideration, the period for issuing the notice u/s 143(2) elapsed. The process has attained the finality which can only be assailed u/s 148 or 263 of the IT Act. Such proceedings can never be initiate .....

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books, no proceeding is pending, but in the search, material is found indicating incriminating material, the Assessing Officer embarks on a jurisdiction, wherein he has to club the two safe of incomes, the returned income and the unearthed income and arrive at the total income. 12. In the case of Kabul Chawla 380 ITR 573, the Hon ble High Court has summarized the legal position as under:- 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the l .....

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rought 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 assessment has to be made under this Section only on the basis of seized material." v .....

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wn in the course of original assessment. 13. The aforementioned ratio laid down by the Hon ble High Court of Delhi has been followed by the Hon ble High Court of Delhi in the case of Lata Jain in Income Tax Appeal No. 274 & 276 of 2016 wherein the Hon ble High Court held as under:- 5. The short point involved is whether the ITAT was correct in concluding that there had to be incriminating material recovered during the search qua the Assessee in each of the years for the purposes of framing a .....

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f law arises for determination. 14. As mentioned elsewhere, there is not a whisper of any incriminating material found at the time of search which could be considered as the basis for framing assessments u/s. 153A of the Act. 15. Drawing support from the judgments mentioned elsewhere, we do not find any legality in the assessment so made by the A.O. We have no hesitation to set aside the findings of the ld. CIT(A) and direct the A.O. to delete the impugned additions. In our considered opinion, t .....

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