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TMI Blog2019 (12) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... esentatives of both parties have agreed that the issue involved in both the appeals is identical and, therefore, for sake of convenience, we adjudicate the appeal for the assessment year 2009-2010 and our decision will apply mutatis-mutandis to the assessment year 2010- 2011. 3. In assessment year 2009-2010, the assessee has raised the additional grounds of appeal, which read as under: "1. In the facts and circumstance of the case & in law, the Pr. Commissioner of Income Tax - 4, Kolkata erred in passing order for transfer of jurisdiction from Kolkata to Sambalpur without giving an opportunity to the Appellant before transfer. Which is a clear violation of section 127 of the Income Tax Act. 2. In the facts and circumstance of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing material / documents. Moreover no additions are made in the assessment order based upon these documents." 3. At the outset, ld Representative of the assessee (AR) submitted that he does not want to press additional Ground Nos.1 to 3 of appeal. Hence, we dismiss Ground Nos.1 to 3 of appeal as not pressed. 4. Apropos additional Ground Nos.4 to 6 of appeal, we have heard the arguments of both the sides and careful considered the relevant material on record of the Tribunal including Form No.35 & Form No.36 placed in the appeal file. Ld Counsel for the assessee placing reliance on various decisions including the judgment of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) and submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the seized materials/documents and the subject additions in the impugned assessment order are not based on the seized materials and hence, the impugned order is not maintainable in law. Thus, the same is void abinitio and bad in law. The Sr Counsel vehemently pointed out that the seized documents, as per satisfaction note, as referred therein, are pages 67 to 93 and 94 to 97 of SMLO-05 do not belong to the assessee and in no way related to the assessee. He further contended that the seized documents as per annexure- A of the satisfaction note is IFCI factors satisfaction letter for financial assistance to the assessee and money received by the assessee from Shivom Minerals Ltd., during financial year 2011-12 as per SMLO 52 are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs Pvt Ltd vs ACIT, (2014) 50 Taxmann. Com 299 (Delhi), decision of Hon'ble Bombay High Court in the case of CIT vs. Arpit land pvt Ltd., CIT Vs. M/s. Arpit Land (P) Ltd. 78 taxmann.com 300 (Bombay) and submitted that when seized documents do not belong to the assessee, then addition cannot be held as sustainable. 8. Further, placing reliance on the decision of Hon'ble Bombay High Court in the case of Pr. CIT vs. R.M. Investment & Trading Co. Pvt Ltd., in INCOME TAX APPEAL(IT) NO. 780 OF 2016 and in the case of CIT vs, Continental Warehousing Corporation, order dated 21.4.2015 in INCOME TAX APPEAL NO. 523 OF 2013, ld counsel submitted that when there is no incriminating documents/materials seized during the course of search and seizure ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, same are not sustainable and, hence, we hold so. Accordingly, additional Ground nos.4 to 6 of additional grounds are allowed. 11. Since, no arguments were advanced by both the sides with regard to other grounds of appeal and in view of our decision in the earlier part of this order in additional grounds in Ground Nos.4 to 6 of additional grounds of the assessee, other grounds on merits are not adjudicated. Additional Ground Nos.4 to 6 of appeal in A.Y. 2010-2011. 12. Similar additional grounds Nos.4 to 6 have been taken in assessment year 2010-2011 having identical facts and circumstances and thus in view of our decision in assessment year 2009-2010 (supra) the additional grounds of appeal taken in assessment year 2010-2011 are al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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