TMI Blog2021 (3) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... based on incriminating material discovered as a result of search operation in assessee s case but not on the recorded statements. Thus since no incriminating material found in the course of search in the premises of assessee, assessment made making addition by the Assessing Officer in respect of long term capital gain is bad in law. Thus,direct the Assessing Officer to delete the addition made in respect of long term capital gain - Decided in favour of assessee. - ITA NO. 982/MUM/2020 (A.Y. 2011-12) - - - Dated:- 9-2-2021 - SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER Assessee by: Ms. Dinkle Hariya Department by: Shri Sanjay J. Sethi ORDER PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against order of the Learned Commissioner of Income Tax (Appeals) 48, Mumbai [hereinafter in short Ld.CIT(A) ] dated 29.11.2019 for the A.Y. 2011-12. 2. Assessee in her appeal raised following grounds: - 1. NATURAL JUSTICE 1.1 The Learned Commissioner of Income - tax (Appeals) - 48, Mumbai [ Ld. CIT (A) ] erred in not granting proper, sufficient and adequate opportunity of being heard to the Appellant while framing the appellate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extraneous considerations; and (iii) Ignoring relevant material and considerations as submitted by the Appellant. 4.3 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for. 4.4 Without prejudice to the above, assuming - but not admitting - that some addition was called for, it is submitted that the computation of the addition made by the A.O. is arbitrary, excessive and not in accordance with the law. LIBERTY 5. The Appellant craves leave to add, alter, delete or modify all or any the above ground at the time of hearing. 3. Ld. Counsel for the assessee at the time of hearing submitted that Ground No. 1 of grounds of appeal which is relating to natural justice before the Ld.CIT(A) is not seriously pressed. In view of the submission Ground No.1 is not adjudicated and dismissed as not pressed. 4. Coming to Ground No. 2 of grounds of appeal, Learned Counsel for the assessee submitted that the assessment made u/s. 153A is bad in law as there is no incriminating material found in the course of search and the assessment is not abated. Learned Counsel for the assessee submitted that assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Smt. Aarti Singal v. DCIT in ITA.Nos. 706, 707, 709/Chd/18, order dated 07.02.2020. 8. Ld. DR vehemently supported the orders of the authorities below. 9. Heard rival submissions, perused the orders of the authorities below. In this case assessee filed return on 20.07.2011 and the same was processed u/s. 143(1) of the Act on 21.09.2011 and time limit for issue of notice u/s. 143(2) lapsed on 30.09.2012 and no assessment or re-assessment proceedings were pending as on the date of search. Therefore, admittedly in this case the assessment is unabated on the date of search i.e. 25.07.2013 since there were no pending proceedings either u/s. 143(3) or 148 of the Act. 10. Hon'ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation (supra) held that In a case where pursuant to issue of notice under section 153A assessments are abated. Assessing Officer retains original jurisdiction as well as jurisdiction conferred on him under section 153A for which assessments shall be made for each of six assessment years separately. No addition can be made in respect of unabated assessments which have become final if no incriminating material is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while making assessment under section 153A only on basis of some incriminating material unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment. Pursuant to search carried out in case of the assessee, a notice under section 153A(1) was issued. In course of assessment, Assessing Officer made addition to assessee's income in respect of deemed dividend. It was undisputed that assessment for assessment years in question had already been completed on date of search. Since no incriminating material was unearthed during the search, no additions could have been made to income already assessed. Consequently, the impugned addition was to be deleted . 14. The Hon'ble Delhi High Court followed this decision in the case of CIT v. RRJ Securities Ltd., [380 ITR 612]. 15. The Hon'ble Delhi High Court in the case of Pr.CIT v. Meeta Gutgutia (supra) held that invocation of section 153(A) to reopen concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment years. 16. In all the above decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to cross-examine was not afforded to the assessee. In our opinion, it cannot be said that those statements on the basis of which impugned additions were made by the AO, were incriminating material found during the course of search. As we have already noted that no incriminating material was found during the course of search and the additions were made by the AO while framing the assessments u/s 153A of the Act, the said additions need to be restricted or limited only to incriminating material found during the course of search. However, in the present case, no such incriminating material was found during the course of search from the possession of the assessee. . 121. In the present case also, the AO made the additions on the basis of the statements of third parties recorded u/s 132(4)/133A of the Act and third parties evidences/documentation. However, no live nexus with the incriminating material found in the course of search in the case of the assessee was established. The statements of the third parties were recorded behind the-back of the assessee but the opportunity of cross-examination of such parties was not allowed to the assessee, even the statements were retrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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