TMI Blog2019 (6) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... s before us, no addition/disallowance can be made without the aid of incriminating materials unearthed during search qua these assessment years. - Decided in favour of assessee. - I.T(SS)A Nos. 92 to 94/Kol/2017 - - - Dated:- 3-6-2019 - Shri A. T. Varkey, JM And Dr. A. L. Saini, AM For the Appellant : Shri A. K. Singh, CIT, DR For the Respondent : Shri B. C. Jain, FCA Shri Rakesh Jain, FCA ORDER PER SHRI A.T.VARKEY, JM These are three appeals of the Revenue against the order of the CIT(A) 20, Kolkata dated 27.04.2017 for Assessment Years 2010-11, 2012-13 2013-14. 2. Appeals of revenue are time barred by 17 days and a condonat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y incriminating materials and the very concept of incriminating materials is alien to the scheme of the search proceedings u/s. 153A of the Act. However, during the hearing before us, we asked to Ld. CIT DR the pointed question as to whether the AO has made any addition on the basis of incriminating materials and the Ld. CIT, DR could not point out from the assessment order any incriminating material unearthed during search on the basis of which the assessment was framed by the AO. Thus we take note that the AO did not take the aid of any incriminating materials unearthed during search qua these assessment years to make the addition. We note that undisputedly these assessment years were not pending before the AO on the date of search and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the AO could have only reiterated the return filed / assessment made under 143(1) / 143(3) of the Act. In the light of the aforesaid facts, we requested the Ld. CIT DR to carefully go through the assessment orders qua those respective assessment years to find out as to whether the AO has made any addition with the aid of any incriminating materials unearthed during search qua those assessment years and fixed the appeal on 31.01.2019. 3. With the aforesaid background, on 31.01.2019 we asked the Ld. CIT DR as to whether the assessment years 2009-10 to 2013-14 was pending before the AO on the date of search which he answered as not pending before the AO on the date of search. On our next query as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AYs before us were not pending so without incriminating materials unearthed during search, no addition can be made as held by Hon ble Delhi High Court in Kabul Chawla (supra) wherein their Lordships held as under: Summary of legal position 37. On a conspectus of Section 153A(1) of the Act, read with provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, 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 other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Hon ble Calcutta High Court in the case of Veerprabhu Marketing Ltd. has held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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