TMI Blog2019 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... he head short-term capital gain on sale of shares whereas the learned assessing officer treated the same as income from other sources, the above addition has already been deleted in the quantum of appeal of the assessee for assessment year 2005 06 as the addition was not made on the basis of the incriminating material found during the course of search, the penalty on this issue now do not survive. Accordingly ground number 1 of the appeal of the assessee challenging the levy of the penalty u/s 271 (1) (C) of the act is allowed. - ITA No. 5696/Del/2014 And 3128/Del/2016, ITA No. 5982/Del/2014 And 2216/Del/2014 - - - Dated:- 5-11-2019 - Ms Suchitra Kamble, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Shri Ved jain, Advocate For the Revenue : Shri Samar Bhadra CIT ORDER PER PRASHANT MAHARISHI, A. M. 1. These are the bunch of four appeals pertaining to one assessee for two assessment years i.e. assessment year 2005 06 and 2006 07, therefore they are disposed of by this common order. 2. ITA number 5696/del/2014 for assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h these additions have been made which are contested in the appeal of the assessee as well as in the appeal of the learned assessing officer. He therefore submitted that in view of the decision of the honourable Delhi High Court in case of CIT vs. Kabul Chawla [ 2016] 380 ITR 573 (Del) in concluded assessment no addition can be made without any incriminating material found during the course of search. He extensively read the orders of the learned assessing officer as well as the learned CIT A and stated that both these additions have been made without reference to any incriminating material found during the course of search. Therefore, such additions could not have been made by the learned assessing officer in the 1st place itself. 5. The learned departmental representative relied upon the order of the learned assessing officer and the learned CIT A and submitted that no such ground has been raised by the assessee before the lower authorities and therefore now the assessee cannot challenge the same. He submitted the copy of the panchanama and submitted that there are certain documents found in search. 6. We have carefully cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted assessment can be reiterated and the abated assessment or reassessment can be made. The word assess in section 153A is relatable to abated pro ceedings (i.e., those pending on the date of search) and the word reassess to the completed assessment proceedings. (vi) In so far as the pending assessments are concerned, the jurisdic tion to make the original assessment and the assessment under section 153A merges into one. Only one assessment shall be made separately for each assessment year on the basis of the findings of the search and any other material existing or brought on the record of the Assessing Officer. (vii) Completed assessments can be interfered with by the Assessing Officer while making the assessment under section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 7. Thus, completed assessments can be interfered with by the assessing officer only based on some incriminating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Kabul Chawla (supra), all the three additions made by the learned assessing officer in the concluded assessment for assessment year 2005 06 were without any incriminating material found during the course of search. Therefore, all these three additions deserve to be deleted. The learned CIT A has already deleted the addition of INR 2,500,000 under section 68 as well as the addition of INR 6,500,000 on account of deemed dividend on merits against which the learned assessing officer is in appeal before us. With respect to the addition of INR 3 525645/ , the learned CIT A has upheld the addition and held that the benefit of long-term capital gain will not be available to the assessee on the sum of INR 3 525645/- to the assessee and the above sum should be taxed under the head income from other sources. Against the confirmation of this addition, the assessee is in appeal. As the addition is involved in the appeal of the assessee as well as in the appeal of the learned assessing officer are not made on the basis of any incriminating material found during the course of search, all these 3 additions deserves to be deleted. Accordingly, we allow ground number 1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he particulars of true income and also furnishing inaccurate particulars of income and therefore the penalty proceedings were initiated in the assessment proceedings. Consequent to that, as addition with respect to INR 3 525645/ was upheld, the penalty proceedings on the same were also initiated. Therefore the learned joint Commissioner of income tax (OSD), central circle, passed an order u/s 271 (1) (C) of the act on 23/3/2012 levying penalty u/s 271 (1) (C) of the act after considering explanation by the assessee. While levying the penalty the learned AO noted that assessee has furnished inaccurate particulars of his income and also concealed the particulars of his income and thereby has committed an offence within the meaning of section 271 (1) (C) of the act. 14. Assessee aggrieved with the order of the learned assessing officer preferred an appeal before the Commissioner of income tax (appeals) IV, Kanpur who passed an order dated 17/3/2016 dismissing the appeal of the assessee and thus confirming the penalty levied by the learned assessing officer. 15. As the penalty has been levied on the addition of INR 3 525645/ being disclosure made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before us. 18. The learned authorised representative at the time of commencement of hearing made an application under rule 27 of The Income Tax Appellate Tribunal Rules, 1963 stating that though the assessee has got relief before the learned CIT A and therefore it has not referred any appeal against the order of the learned CIT A, But, as the revenue has come in appeal, the assessee intends to support the order of the learned CIT A invoking the provisions of rule 27 on the ground that in absence of any incriminating material being found during the course of search for the assessment year under consideration, the assessing officer could not have made the additions which have been deleted by the learned CIT A. He further submitted that the above issue is squarely covered by the decision of the honourable jurisdictional Delhi High Court in case of CIT vs. Kabul Chawla in ITA number 707 dated 28/8/2015. He further supported his argument that in the present case as assessee has not filed any appeal but he is entitled to support the decision of the CIT A on any ground but he is not entitled to raise a ground which will work adversely to the appellant. He f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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