TMI Blog2019 (9) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... These are appeals preferred by the Revenue against the order of the Ld. CIT(A) - 21, Kolkata dated 23.03.2017 for AY 2009-10 and AY 2010-11. First we take up IT(SS)A No. 15/Kol/2017 2. Grounds of appeal of the Revenue for AY 2009-10 is as under: That on the facts and in the circumstances of the case the Ld. CIT(A) has erred in allowing assessee s appeal on ground no. 1 without appreciating the fact that the addition made in the order u/s 143(3)/153A. 3. Brief facts of the case as noted by the AO is that a search was conducted on 30.08.2012 in the different premises of DECO Group of companies and the assesseecompany was the flagship company of this group. It was noted by the AO that the assesseecompany was mainly engaged in the business of engineering and mining, site leveling, excavation, evacuation, surface mining, drilling and blasting, transportation or etc. According to the AO pursuant to the notice u/s 153A of the Income Tax Act, 1961 (herein after referred to as the Act ) for the AY 2009-10 assessee filed return disclosing total income of ₹ 3,54,42,880/-. Thereafter in the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome was not assessed have all the right to assess the assessee s income. Therefore, according to the ld. CIT DR, the order of the ld. CIT(A) need to be reversed and the AO s order needs to be upheld. 6. Per contra the ld. AR submitted that the AO has not made any whisper of any incriminating materials unearthed during search qua this assessment year to make the addition. Therefore, as per settled decision of judicial precedents, the ld. CIT(A) has allowed the relief which does not require any interference from our part. 7. At the outset it was brought to our notice that the ld. CIT(A) has taken note of the fact that for this assessment year 2009-10 was an unabated assessment. Since no assessment was pending for this year before the AO on the date of search (30.08.2012) no addition / disallowance can be made without the aid of incrimination material unearthed during search. We note that the assessee had filed the original return of income on 30.09.2009 and thereafter, the AO assessed the assessee u/s 143(3)/153C by an order dated 29.12.2011 which has been annulled by the ITAT vide order dated 09.11.2016. We note that on the date of search on 30.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word reassess to completed assessment proceedings. vi. Insofar as pending assessments are concerned, 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. 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. 8. The aforesaid order has been approved by the Hon ble Calcutta High Court in CIT vs Veerprabhu Marketing Ltd. where the Hon ble High Court held as under: We agree with the view expressed by the Karnataka High Court that incriminating material is pre-requisite before power could have been exercised u/s 153(C) r.w Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding addition of deemed dividend u/s 2(22)(e) as discussed above) 4,54,44,692/- 10. Therefore, it is clear that the AO has not found any incriminating material during search on 30.08.2012 qua this assessment year against the assessee of ₹ 4,54,44,692/-. Therefore, since no assessment was pending on the date of search for AY 2009-10 on 30.08.2012 (date of search), the AO could not have made any addition without the aid of incriminating material unearthed during search qua the assessment year. Therefore, we do not find any infirmity in the order of the Ld. CIT(A) who has deleted the addition wherein the Ld. CIT(A) held as under: I have considered the findings of the AO in the assessment order, different case laws brought on record and appeal orders passed by my predecessors on this legal issue. I find from the assessment order that during the search and seizure operations conducted us 132 of the I.T. Act, 1961, incriminating, documents / papers were not seized. At least, additions made by the AO in the assessment order passed u/s 153A/143(3) are not based on any incriminating doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd.(supra) and Hon ble Apex Court s decision dismissing SLP in the case of Pr. CIT Vs. Korley Paper Mills Pvt. Ltd. (supra). We find that the addition was made by the AO u/s. 68 of the Act of ₹ 1 cr in respect of share application money it had received during this assessment year. In this regard it is noted that the share application money of ₹ 1 cr. is part and parcel of the regular books of audited accounts of the assessee which had already been scrutinized earlier by order dated 29.12.2011. It is noted that the addition is not based on any incriminating documents found during the course of search. The AO has not made any reference to any incriminating material to make the addition of share application money which has already been reflected in the regular books of account of the assessee which has already passed scrutiny assessment on 29.12.2011, therefore, the Ld. CIT(A) s action of deleting the addition is upheld and the Ld CIT(A) has rightly relied upon the decisions of Hon ble Delhi High Court in Kabul Chawla (supra), Hon ble Calcutta High Court in Veeraprabhu Marketing Ltd.(supra) and Hon ble Apex Court s decision dismissing SLP in the case of Pr. CIT Vs. Kurele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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