TMI Blog2020 (2) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-11are directed against the orders of Ld. Commissioner of Income Tax (Appeals)-I (in short Ld.CIT(A) ], Indore dated 04.06.2018 which is arising out of the order u/s 153(C) r.w.s.143(3) of the Act dated 28.03.2016 framed by ACIT-2(1), Indore. 2. As the issues raised in these appeals are common they were heard together and are being disposed off by this common order for the sake of brevity and convenience. 3. Assessee has raised following grounds of appeal:- Appeal (SS)No.108/Ind/2018 Assessment Year 2009-10 1. 1] That on the facts and in the circumstances of the case and in law the Ld CIT(A) erred in maintaining addition of ₹ 2,20,500/- to the income of the assessee on account of client code modification by the broker in the assessment proceeding U/s 153C of the Act even when nothing incriminating was found from the premises of the person search. 1.2] That on the facts and in the circumstances of the case the Ld CIT[A] erred in maintaining addition of ₹ 2,20,500/- to the income of the assessee in the nonabate assessment in absence of any incriminating documents found during the course of search. 1.3] That on the facts and in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case the Ld CIT[A] erred in maintaining addition of ₹ 2,72,226/- to the income of the assessee on account of change in code by the broker even when no such reason was recorded by the assessing officer of the person searched and also by the assessing officer of the assessee prior to the issuance of the notice U / s 153C of the Act. 2] That on the facts and in the circumstances of the case and in law the Ld CIT[A] erred in adding an amount of ₹ 2,72,226/- to the income of the assessee on account of change in client code by the broker without properly appreciating the facts of the case and submission made before him 3] That on the facts and in the circumstances of the case and in law the Ld CIT[A] erred in maintaining the addition of ₹ 2,72,226/- to the total income of the assessee on account of Change in client modification code even when no such loss was actually claimed by the assessee in his return of total 4) That the appellant reserves its right to add, alter and modif'y the grounds of appeal as taken. 4. Brief facts of the case as culled out from the records are that the assessee is an indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was re-opened U / s 153C of the Income Tax Act. That as per provision of section 153C of the Act where the Assessing officer is satisfied that,- (a) any money, bullion, jewellery or other valuable article or thing seized or requisitioned, belongs to ; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing officer having such other person and that Assessing officer having jurisdiction over such other person in accordance with the provisions of section 153A, if, that assessing officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for the relevant assessment year or years referred to in sub-section (1) of Section 153A. 1.4.2] That it is now settled position of law that addition in the case of the assessee U/s 153C r.w.s 153A of the Income Tax Act can be made only on the basis of incriminating docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng additional requirement needs to be fulfilled, the same is listed as under:- S.No. List of additional requirement 1 During the course of search person certain incriminating documents related to the other person must be found. 2 On the basis of documents as found during the course of search related to the other person, reason was recorded by the assessing officer of the person searched. 3 The assessing officer of the person searched, after recording of the reason, handed over the documents to the assessing officer of the other persons 4 The assessing officer of the other person on the basis of documents as received from the assessing officer of the person searched, make necessary inquiry at his end and recorded his independent satisfaction regarding incriminating mature of documents and then issued notice U/s 153C of the Income Tax Act. 5 The assessee in response to the notice as issued U/s 153C of the Act filed its return of tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity Services P. Ltd ITA Nos 3498 and 3499/Mum/2012. 7. Per contra Ld. Departmental Representative vehemently argued supporting orders of both the lower authorities and also submitted that the arguments of Ld. Counsel for the assessee relying on wrong quote were not independently it was submitted by Ld. Departmental Representative that a mistake may happen once but it cannot happen on multiple occasions. 8. We have heard rival contentions and perused the records placed before us. Common issues have been raised for both the Assessment Years 2009-10 and 2010-11. We will first take up the legal issue raised by the assessee submitting that no incriminating material was found during the course of search for the years under appeal and the additions made by the Ld. A.O are only on the basis of enquiries conducted in the assessment proceedings. The assessment proceedings u/s 153C of the Act deserves to be quashed being without jurisdiction. 9. We observe that search in the case of M/s Dilip Buildcon Limited was conducted on 20.6.2012 and also at the residential premises of Shri Sanjay Mehta, Indore. From the residential premises of Shri Sanjay Mehta some documents relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:- We have heard both the sides. We have also gone through the case laws relied upon by both the sides. We have also considered various relevant facts of the case. It is a settled legal position that once a search and seizure action has taken place u/ s 132 of the Act or a requisition has been made u/ s 132A, the provisions of section 153A trigged and Assessing Officer is bound to issue notice u/ s 153A of the Act. Once notices are issued u/ s 153A of, the Act then assessee is legally obliged to file return of income for six years. The assessment and reassessment for six years shall be finalised by the Assessing Officer. It is also held by various Courts that once notice u/ s 153A of the Act issued, then assessment for six years shall be at large both for Assessing Officer and assessee have no warrant of law. It has been also held that in the assessment years where assessments have been abated in terms of second proviso to section 153A then Assessing Officer acts under original jurisdiction and one assessment is made for total income including the addition made on the basis of seized material. But where there is no abatement of assessments and assessments were com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Hon'ble Apex Court, we dismiss the ground of appeals of the Revenue. Departmental appeals are disposed accordingly. The decision in the case of Kalani Bros. has again been followed by the Hon'ble ITAT Indore Bench, Indore in the case of M/s Anant Steel Pvt. Ltd., Indore in IT(SS)A No. 31, 28, 29 30/Ind/2010 vide order dated 18.1l.2015. The Hon'ble ITAT Indore Bench, Indore while arriving at the above decision has taken note of all the recent decisions on the issue of validity of assessment proceedings u/s 153A of the Income Tax Act, 1961 wherein assessments were made without reference to any incriminating documents/material/evidences found during the course of search and held that it is a settled legal position that when two views are possible on a particular issue then the view favourable to the assessee should be followed as held by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products, 88 ITR 192. On perusal of the assessment order in the case it is seen that the additions made by the AO have been made without any reference to any evidences/ documents/material found as a result of search action. The appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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