TMI Blog2019 (4) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... addition so made is therefore directed to be deleted. - Decided in favour of assessee. - ITA No.238/Chd/2014 - - - Dated:- 29-3-2019 - Shri Sanjay Garg, Judicial Member And Smt. Annapurna Gupta, Accountant Member For the Assessee : Shri Neeraj Jain, CA For the Revenue : Shri K.K. Mittal, CIT DR ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER The present appeal has been preferred by the assessee against the order dated 9.10.2013 of the Commissioner of Income Tax (Appeals)(Central), Gurgaon [hereinafter referred to as CIT(A)], passed u/s 250(6) of the Income Tax Act,1961(hereinafter referred to as Act ). 2. Briefly stated, search operation u/s 132(1) of the Act was carried out on the Mittal group of cases on 16.1.2009 in which the residential premises of the assessee was also covered. Thereafter notice u/s 153A of the Act was issued to the assessee in response to which return declaring income of ₹ 2,08,940/- was filed by the assessee. Notices were issued thereafter for assessing the income of the assessee u/s 142(1) and 143(2) of the Act alongwith detailed questionnaire. Meanwhile it was seen that the accounts of the group concern and the seized d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 5,00,000/- on account of unexplained cash credit u/s 68 on the basis of Bank statement. As in replied by the assessee that section 68 did not apply to assessee, along with supporting documentary evidence, but Ld. CIT (A) ignored it. So, this addition is highly unjustified. Therefore, the addition of ₹ 5,00,000/- is prayed to be deleted. 5. Charging interest under section 234 A, 234 B and 234 C are not warranted due to the facts of the case. 5. The assessee has also raised additional ground before us which reads as under: That the Ld. CIT (A) is not justified in confirming the additions / disallowances in assessment made u/s. 153A (1) (b) r.w.s. 143 (3) of the I. T. Act, 1961 in the absence of incriminating material found during the course of Search as no assessment was pending for the A. Y. 200607 on the date of initiation of search. 6. Vis a vis the same it was contended that since the issue raised in the additional ground was a legal issue and further since no new fresh facts were required to be considered for adjudicating the same, it may be admitted for adjudication. In support the assessee relied upon the decision of the Hon'ble Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and its solitary argument against the same was that no incriminating material relating to these additions was found during the course of search and that it was simply based on documents procured during the course of post search enquiry when the copies of bank accounts were submitted and it was noted therefrom that there were cash deposits and unsecured loans taken by the assessee in the bank accounts, the explanation of which was sought from the assessee and found to be unsatisfactory. The Ld.Counsel for the assessee thereafter pointed out that there was no pending assessment relating to the impugned year as on the date of search and, therefore, in view of the above facts and in view of various judicial decisions in this regard, no addition unconnected with any material seized during the course of search could have been made in the hands of the assessee. Our attention was drawn to paras 6, 7 and 8 of the assessment order wherein the additions on account of cash deposits in the bank and unsecured loan found deposited in bank was discussed and made. The Ld. counsel for assessee also drew our attention to the fact that the assessment year involved in the impugned case was assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where earlier assessment was completed, addition can be made only on the basis of incriminating material found during search there is no dispute. In fact courts have time and again in the cases of CIT Vs. Continental Warehousing Corporation in ITA No. 523 of 2013 reported in (2015) 279 CTR 0389 (Bombay), CIT Vs. Kabul Chawla, 234 Taxman 300 (Delhi). Principal CIT Vs. MeetaGutgutia Prop M/s Ferns N Petals , ITA 306/2017 and others (Delhi) held that if no incriminating material is found during the search action, the addition in the case of already concluded assessment cannot be made while framing assessment u/s 153A of the Act. The only dispute is whether the addition made u/s 68 of the Act was based on any incriminating material or not. 14. The fact that the information relating to the impugned additions emanated from bank accounts and bank book of the assessee is not disputed. Further we find that the assessment order does not mention the same having been found during search, nor has the Ld.DR been able to establish the said fact before us. In fact the Ld.DR has admitted that the said documents were not found during search but the information was obtained in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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