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TMI Blog2018 (1) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, Revenue has raised the following Grounds of appeal:- "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition of on money of Rs. 2,70,60,000/- received on sale of flats relying on the decision of the Bombay High Court in the case of All Cargo Global Logistic Ltd. (ITA No. 523 of 2013) without appreciating the facts that the above said decision of the High Court has not been acceptable by the department and SLP has been filed in the Supreme Court and the same is admitted by the Supreme Court. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition of on money of Rs. 2,70,60,000/- received on sale of flats relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the manner in which CIT(A) has deleted the addition, based on the ratio of the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd., 374 ITR 645 (Bom), deserves to be affirmed. 4. The ld. CIT-DR has not controverted the factual matrix asserted by the learned representative, but pointed out that there was a contrary view also, as manifested by the judgments of the Hon'ble Kerala High Court in the case of CIT vs. St. Francis Clay Decor Tiles, 385 ITR 624 (Kerala), CIT vs. Dr. P. Sasikumar, 387 ITR 8 (Kerala) and E.N. Gopakumar vs. CIT, 390 ITR 131 (Kerala). It was also pointed out that presently the SLP against the order of the Hon'ble Delhi High Court in the case of MGF Automobiles Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Sec. 153A of the Act, in the absence of assessment being pending, the original assessment did not abate. As a consequence, following the ratio of the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra), an addition could only be made in the ensuing assessment u/s 153A r.w.s. 143(3) of the Act, either based on or connected to incriminating material found and seized in the course of search. Further, the factual finding of CIT(A) is that the impugned addition is not relatable to any material or evidence found in the course of search, and in that context, she has made the following observations in para 5.1.5 :- "5.1.5 As noted earlier, the case of the appellant for A.Y 2009-10 was not a 'pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Group), Mr. Paresh Panchlotiya (Office Assistant/Liaison Officer) did not make any specific mention of receipt of on-money by the appellant company. In this background, the addition made on account of on-money, not emanating from the material yielded by search, cannot be upheld. Therefore considering the facts of the case and the judicial pronouncements cited above, it is evident that the impugned assessment is not based on any incriminating material pertaining to the appellant seized during the search. For these reasons, the addition of on money made in the assessment order being beyond the scope and ambit of assessment under section 153A is deleted and the grounds no. 1 and 2, raised by the appellant are allowed." Following the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al appeal by the Hon'ble Bombay High Court and had decided the issue. In our opinion, her order does not suffer from any legal or factual infirmity." 7. Quite clearly, the reference to the statement of employees, etc. collected at the time of search, which has been referred to in the stated Grounds of appeal before us, has already been considered by our co-ordinate Bench in its order dated 02.05.2017 (supra) and it has been held that the same does not justify the inclusion of impugned addition in an assessment made u/s 153A r.w.s. 143(3) of the Act having regard to the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra). In view of the similarity of facts, in the instant case also, we hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X
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