TMI Blog2016 (10) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... his common order for the sake of convenience, by dealing with ITA No. 832/Del/2014 (AY 2003-04). 2. The grounds raised in ITA No. 832/Del/2014 (AY 2003-04) read as under:- 1. That on the fact and circumstances of the case the order passed by Ld. CIT(A) is bad in law and nature and therefore it is liable to be quashed. 2. That on the facts and circumstances of the case the Ld. CIT(A) grossly erred in confirming the penalty of ₹ 951,245/- levied u/s. 271(1)(c) of the Act which was levied on the addition made in the quantum order framed by the AO. 3. The appellant craves leave for addition, modification, alteration, amendment of any of the grounds of appeal. 3. The grounds raised in ITA No. 833/Del/2014 (AY 2007-08) read as under:- 1. That on the fact and circumstances of the case the order passed by Ld. CIT(A) is bad in law and nature and therefore it is liable to be quashed. 2. That on the facts and circumstances of the case the Ld. CIT(A) grossly erred in confirming the penalty of ₹ 3,17,45,629/- levied u/s. 271(1)(c) of the Act which was levied on the addition made in the quantum order framed by the AO. 3. The appellant craves leave for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes Ltd. vs. DCIT and ITA Nos. 2965, 2966, 29067/Del/2012 (Ayrs. 2003-04, 2004-05, 2007-08) others vide order dated 30.5.2014. The relevant portion of the ITAT order dated 30.5.2014 are reproduced as under:- 12.3 When we examine the facts of the present case in view of the ratio laid down in the above cited decisions, we find that it is an admitted fact in the present case that no addition was made which was based on the incriminating material found during the course of search. It is also an admitted fact that the assessment were made on 24/12/2009 or by 11.2.2009 (as the case may be) in pursuance to the search conduced on 21/3/2007 on the basis of authorization dated 20/13/2007. In the case of Shri Anil Kumar Bhatia ors (supra) revenue had preferred appeal before the Hon'ble High Court against the order of the Tribunal and the issue raised before the Hon'ble High Court was as to whether even if assessment order had already been passed in respect of any of those 6 assessment years either U/S 143(1) (a) or Section 143(3) prior to intimation of search requisition, still Assessing Officer is empowered to reopen those proceedings uls 153A without any fetters and reass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made U/S 153A of the Act. In other words, in absence of finding of any incriminating material during the course of search where assessment has already been framed uls 143(3) of the Act or return filed U/S 139 has already been processed uls 143(1) and no notice uls 143(2) has been issued, addition cannot be made in the assessment framed u/s 153 A of the Act, contended the Ld. AR. The facts of that case before the Hon'ble Delhi High Court were thus different. In the present case before us it is an admitted fact that no addition was made based on the incriminating material found during the course of search. The other decision relied upon by the Ld. CIT-DR having distinguishable facts are also not helpful to the revenue. If the decision in the case of CIT vs. Chetan Das Lachman Das (supra) relied upon by the Ld. CIT-DR is gone through iIl its totality, it help the assessee. In para 11 it has been made clear that an assessment has to be made under section 153A only on the basis of seized material. We thus respectfully following the ratio laid down in the above cited decisions especially the decision of Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sees were included in the panchnama drawn up on 15th May 2007 although no fresh search authorisations qua any of them were issued. The case of the Revenue has been that the search did not conclude on 23rdMarch 2007 but on 15th May 2007. This was on account of the restraint orders claimed to have been validly passed on 23rd March 2007 in peculiar circumstances where either the person searched was not present or the witnesses were not present or the keys of some of the cupboards were not available. 7. The ITAT has in the impugned order, after discussing the earlier decisions of the IT AT and the High Courts, noted that mere passing of a restraint order would not extend the time limit available for completion of the assessment pursuant to the search. It has been noted that Section 132(3) of the Act for passing a restraint order can be only resorted to if there is any practical difficulty in seizing the item which is liable to be seized. If all actions of the search were completed and nothing was left to be done by the search party, then the action of the authorized officer under Section 132(3) would be illegal and consequently any panchnama prepared on the extended date of searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , commenced on 23 rd March 2007, when the search finally concluded . 11. Consequently, the impugned order of the ITAT, holding that the assessments in question were barred by limitation, and therefore liable to be quashed, does not call for any interference. 12. The second ground on which the ITAT has invalidated the assessments is that there was no incriminating material found in the course of the search against any of the Respondents/ Assessees in these appeals. In this context, reference only need be made to a recent decision of this Court in CIT v. Kabul Chawla (2015) 234 Taxman 300, which holds that in the absence of any incriminating material found in the course of search the framing of assessment under Section 153A or 153 C of the Act, as the case may be, would not be valid. 13. It may be mentioned here that in the case of JH Finvest Pvt. Ltd., the Revenue has not even urged a question regarding the absence of any incriminating material having been found against the said Assessee invalidating the assessment. 14. No substantial question of law arises from the impugned order of the ITAT in these cases. The appeals are accordingly dismissed. 9. Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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