TMI Blog2019 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax (Appeals)-12, Ahmedabad under section 143(3) r.w.s 153A(1)(b) of the Income Tax Act, 1961 (in short the Act ) arising out of the order dated 30.03.2014 passed by the Deputy Commissioner of Income Tax, Central Circle 2(3), Ahmedabad for the Assessment Year 2009-10. 2. The facts leading to this case is this that in the case of Jayesh Steel Group, search operation u/s 132 of the Act was conducted on 13.10.2011. The assessee s case was also covered in the said search action. Subsequently, notice u/s 153A was served upon the assessee upon which return of income on 27.12.2013 for A.Y. 2009-10 was filed declaring total income at ₹ 28,240/- and book profit under Section 115JB of the Act at ₹ 28,240/-. Notice dated 17.09.2013 u/s 143(2) was served upon the assessee followed by a further notice u/s 143(2) dated 02.12.2013 and 142(1) along with a questionnaire. The AO during the assessment proceeding observed that the share capital of the assessee has increased by ₹ 1,79,25,000/- (₹ 20,00,000/- for A.Y. 2010-11). The details/evidences were called upon from the appellant with regard to the same and after considering the same the Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proviso to section 153A. The AO's reliance on Shivanath Red Harnarain (India) Ltd., 117ITD 74 (Del) in his report dated 21/10/2016, is, in my considered opinion, totally misplaced in view of the same remaining no longer a good law as emphatically ruled by both Delhi HC in Kabul Chawala and Gujarat HC in Saumya Construction (supra). The AR is thus right that the AO erred in interfering with assessments which remained unabated as on the date of search. As such, when the examination of seized material by the AO did not lead him to any incriminating document/entry for the year under reference, he was indeed duty-bound to reiterate the total income which had attained finality before the date-of search, and he indeed exceeded his jurisdiction in firstly taking up the roving enquiries unfounded on incriminating seized documents, and secondly, in making the impugned additions. This view in Kabul Chawla (supra) has been reiterated by Ahmedabad Bench of Tribunal in Saumy a Construction (supra), which in turn, and eventually, has also now been approved and reiterated by the Hon. Gujarat High Court. In Saumya Construction, Ahmedabad Tribunal disapproved the AO's action of making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f additions in such assessment, being the items of income 'unearthed during the search'. In other words, the determination of 'total income; in respect of the assessment years for which the assessments are already completed on the date of search, shall not be influenced by the items of income other than those based on the material unearthed during the course of search................. . 7. We see no reasons to take any other view of the matter than the view so taken by the coordinate bench. Respectfully following the same, and having noted that the additions of ₹ 11,05,51,000/- is not based on any incriminating material found during search operations on the assessed, we delete the said addition..... Saumya Construction ITA No.24/2016 dated 14/3/2O16 (Gujarat HC) ....18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the controversy involved in the present case stands concluded by the decision of this court in the case of Commissioner of Income-tax-1 v. Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 1S3A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some Incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails: and is, accordingly, dismissed. 7. In view of the above, arid in view of by now settled legal position as enunciated by Jurisdictional HC, the AO, in re-assessments of any of unabated and finally concluded assessments framed u/s 153A/153C, is not. authorized to 'interfere except on the basis of and except having been prompted by incriminating sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the order passed by the Hon ble Tribunal in the case of ACIT-vs-The Jayesh Steel Pvt. Ltd. in IT(SS)A No.49 50/Ahd/2017 for A.Y. 2008-09 2010-11 in which the search proceeding was conducted on 13.10.2011 and the assessee is also covered in the said search action. The relevant portion of the said judgment in deciding the issue is as follows: 7. This issue is no longer res integra. Upholding the stand of this Tribunal that during the post search assessment proceedings under section 153 A in respect of completed assessments additions cannot be made other than on the basis of incriminating material found during search operations , Hon ble jurisdictional High Court, in the case of PCIT Vs Saumya Constructions Pvt Ltd [(2016) 387 ITR 529 (Guj)] has observed as follows: .it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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