TMI Blog2017 (8) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... the department. Unless the Assessing Officer or the CIT(A) examine the search folder, it is difficult to conclude that that there was no incriminating material found during the search. Since the lower authorities did not had an occasion to examine the additional ground raised by the assessee challenging the validity of search proceedings in the light of claim of the assessee, we deem it appropriate to set aside the issue to the file of the CIT(A) for his consideration and direct him to admit the additional grounds raised by the assessee and adjudicate the issue as per law. Since we have set aside the issue to the file of the CIT(A) for adjudicating the additional grounds raised by the assessee on the legal issue of validity of search pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediately proceeding to the assessment year in which search action has been taken place. In response to the notice, the assessee has filed return of income on 12.6.2008. The case was selected for scrutiny and accordingly, notices u/s 143(2) and 142(1) were issued. Since there was no response from the assessee, a show cause notice dated 14.9.2009 of the Act was issued as to why the assessment should not be completed u/s 144 of the I T Act as per the information available on record. After considering the relevant materials on record, the assessment was completed u/s 144 r.w.s 153A of the Act on 31.12.2009 determining the total income of ₹ 3,48,094/-; inter-alia, making certain additions towards income from house property, income from sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and not on bona fide grounds, the Consequential block assessment proceedings are also illegal. 3. The assessing officer also failed to consider that there was no material or evidence found at the time of search disclosing any undisclosed income for the appellant for the assessment periods. The proceedings initiated u/s 153A are, therefore, ab-initio void. 4. For the above Assessment Year, the Assessing Officer has illegally added ₹ 70,0001- as income under other sources. This addition is illegal and unsustainable. It is humbly prayed that the Hon'ble Income Tax Appellate Tribunal, Cochin Bench, Cochin, may kindly be pleased to consider the above grounds of appeal along with the grounds of appeal al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds. Therefore, the same may be admitted and adjudicate the issue as per law. In support of his arguments, he relied the decision of the Hon ble Supreme Court in the case of NTPC Ltd vs CIT reported in (1998) 229 ITR 383 (SC. The assessee has also relied upon the decision of the Hon ble Kerala High Court in the case of CIT vs Promy Kuriakose reported in (2016) 386 ITR 597. 7.1 On the other hand, the ld DR strongly opposed for admission of the additional grounds raised by the assessee. The ld DR further submitted that the assessee has not taken all these legal plea in time before the lower authorities and hence, the additional grounds raised by the assessee shall not be admitted for adjudication. 8 We have heard the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other relevant material on record, we find that the assessee has taken a legal plea on the validity of the search proceedings initiated u/s 132 of the Act, on the ground that the search was carried in violation of provisions of section 132 of the Act as there was no material or evidence was seized at the time of search showing any undisclosed income. Since the legal issue raised by the assessee is emanates from the facts already on record, we deem it appropriate to admit the additional grounds raised by the assessee for adjudication. This view was supported by the decision of the Hon ble Supreme Court in the case of NTPC Ltd (supra) wherein it was held that there is no reason to restrict the power of the Tribunal u/s 254 of the Act only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additions made by the Assessing Officer on merits has not been consider at this juncture. 11 In the result, the appeal filed by the assessee is allowed for statistical purpose. ITA Nos.8 to 13/Coch/2015 ITA Nos. 14 to 20/Coch/2015 ITA Nos 257 to 259/Coch/2017 12 The issues involved in other appeals are akin to the issue considered by us in ITA No. 7/Coch/2015 in the preceding paras. Therefore, for the same reasons, we set aside the additional grounds raised by the assessee challenging the validity of the search proceedings in all the other appeals, consequently not adjudicated other issues on merits. 13 To sum-up, all the appeals filed by the assessees are allowed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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