TMI Blog2018 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... shar, Adv For The Respondent : Sh. Vijay Varma, CIT DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 10/01/2013 passed by CIT (A)-1, New Delhi for Assessment Year 2004-05. 2. At the time of hearing it was found that the assessee has filed condonation of delay application for 589 days for which the assessee has filed through its Director, the affidavit along with the affidavit of the clerk because of whom the delay has been occurred. The application for condonation of delay is as under:- 1. The applicant has filed an appeal before the Hon ble Tribunal against the CIT(A) order dated 10/01/2013 which was received on 14/02/2013 for the assessment year 2004-05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a delay in filing the appeal by 589 days. 12. Even otherwise, assessee s case is squarely covered by the decision of the Jurisdictional High Court in the case CIT vs. Kabul Chawla [2016] 380 ITR 573 as well as in the case of assessee s group concern, CIT vs. Jakson Engineers Ltd. ITA no.910-913/2015 dated 07/12/2015. In the case of Jakson Engineers Ltd., Hon ble High Court has quashed the assessment made by the AO, whereby similar additions u/s 14A was made. 13. That as explained above, it is humbly submitted that the delay in filing the appeal was unintentional and by reason beyond the control of the applicant. Accordingly, it is prayed that the delay in filing the appeal be condoned and appeal be heard on merit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the assessee along with the Affidavit of the clerk because whom the delay was caused, it will be appropriate in the interest of justice to condone the delay. We, therefore, condone the delay and proceed with the hearing of the appeal. 3. The grounds of appeal are as under:- 1. On the facts and circumstances of the case, the order passed by the Learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, the Ld.CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the order passed by the Learned A.O u/s 153A is bad and liable to be quashed as the same has been framed consequent to search which itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /6/2011. The notices were complied with and the income of the assessee was assessed at ₹ 6,59,60,630/- which included an addition of ₹ 7,36,244/- under Rule 8D being expenses relating to exempt income. 5. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A) and the CIT(A) partly allowed the appeal of the assessee. 6. At the time of hearing, the Ld. AR submitted that the assessee involved in the present appeal is squarely covered by the judgment of the Hon'ble Jurisdictional High Court in case of CIT Vs. Kabul Chawla (2016) 380 ITR 573 in which it was held that no addition can be made u/s 153A we have heard both the parties and perused the material available on record not incriminating ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in holding that the issuance of notice under Section 153(1)(a) of the Act was invalid, it is not in dispute that qua the Respondent Assessee no incriminating material was found during the search so as to justify the addition made in the assessment order passed pursuant to the issuance of such notice. As held in several decisions including Kabul Chawla (supra), no assessment can be framed in terms of the Section 153A of the Act in the absence of the any incriminating material found during the search. Consequently, the net result is that the assessment order will in any event have to remain quashed. The Ld. AR relied on the decision of the CIT vs. Kabul Chawla (2016) 380 ITR 573 wherein it is held as under: 37. On a conspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 153A 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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