TMI Blog2021 (3) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... held that no proceedings were pending as on the date of the search and, therefore, notice under section 148 issued after the date of the search was avoid ab initio. As perused the Panchnama of search operation in the case of the locker in the joint name of the entity merged with the assessee and it is evident from said Panchanama that the search was conducted on 30/01/2013. Since the notice under section 148 was issued on 23/10/2013, which is after the date of the search, it is evident that as on the date of the search no assessment/ reassessment proceedings were pending in the instant assessment year. AO has wrongly considered the pendency of the assessment proceeding on the date of the issue of the notice under section 153A. In absence of no incriminating material found during the course of the search and no assessment/reassessment proceedings pending as on the date of the search, the ratio in the case of decision of the Hon ble Delhi High Court in the case of Kabul Chawal (supra) is squarely applicable on the facts of the case and accordingly, no addition could have been made in the instant assessment year. The addition made by the Assessing Officer has rightly been delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at on the facts and in the circumstances of the case the learned CIT(A) has erred in upholding the validity of assessment order dated 30.03.2015 u/s 153A/143(3) passed of the Assessing Officer, which is void-ab-initio. 4. That the respondent craves leave to add, alter, amend, substitute, and forgo any or all the grounds of appeal before or at the time of hearing. 2. Briefly stated facts of the case are that a search and seizure action under section 132 of the Income-tax Act, 1961 (in short the Act ) was carried out in respect of Locker No. 852, maintained with Corporation bank, Gurgaon (Haryana), which was held by M/s Oris Infrastructure Private Limited and M/s DLF Retail Developers Ltd. jointly. The Assessing Officer in the assessment order has reported that the warrant for search of said locker was conducted on 30/01/2013. 2.1 M/s DLF Retail Developers Ltd. later on merged with the assessee, i.e., M/s DLF Universal Ltd., and therefore, the Assessing Officer issued notice under section 153A of the Act asking the assessee to file return of income under 153A proceedings. In response, the assessee submitted that the return filed originally, which was further revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also supported the date of conduct of the search by way of Panchnama of search proceedings in case of locker. The assessee submitted that the ratio in the case of Kabul Chawala (supra) has been validly applied by the Learned CIT(A). He further submitted that in the assessment year 2008-09, also the Tribunal has deleted the addition made under section 153A proceedings, without any incriminating material found from the premises of the assessee, applying the ratio in the case of Kabul Chawla (supra). 6. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In the case the Ld. CIT(A) has deleted the addition applying the ratio in the case of Kabul Chawal (supra) that no addition could be made under 153A proceedings under absence of any incriminating material, in case of completed assessments. Thus, for invoking the ratio of Kabul Chawla (supra), the two conditions are required to be satisfied. Firstly, no incriminating material has been found during the course of the search. Secondly, no assessment/reassessment proceedings were pending in the relevant assessment year as on the date of the search. 6.1 As far as first con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment or re-assessment of the income in respect of each assessment year falling within six assessment years prior to the date of search has to be made by the AO u/s 153A. In these circumstances, the issue of notice u/s 148 by the AO after date of search is void-ab-initio. B. Keeping in view the aforesaid factual and legal position, the proceedings u/s 148 in this case are held to be bad in law. 6.3 In view of finding, the Ld. CIT(A) held that no addition under section 14A could be made under section 153A proceedings observing as under: II The validity of addition u/s 14A vide order u/s 153A/143(3) A. In this regard, the appellant has contended that as the proceedings u/s 148 were bad in law, no assessment or re- assessment proceedings were pending when the notice u/s 153A was issued and in these circumstances, any addition may be made only on the basis of incriminating documents found during the course of search. Similar issue was decided by me in the appellant s own case for AY 2008-09 in Appeal No. 140/15-16. In this case, vide order dated 23/06/2017, I held as under:- 3.7 It is seen from the facts recorded in the assessment order and the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial seized in the search and seizure proceedings to form a basis for addition u/s. 14A read with Rule 8D of the Rules. It is not in dispute that as on the date of assumption of jurisdiction by the Assessing Officer u/s. 153A, the assessment for the assessment year 2008-09 was a concluded one and therefore, it does not get abated. It is settled principle of law that in terms of decision of Hon'ble jurisdictional High Court in the case of Kabul Chawla (supra), Chintels India Ltd vs. DCIT, 397 ITR 416 (Del), PCIT vs. Best Infrastructure (India) Ltd., 397 ITR 82 (Del), PCIT Vs. Meeta Gutgutia, 395 ITR 526 (Del), Ld. PCIT vs. Ms Lata Jain, 384 ITR 543 (Del), the assessments and reassessments pending on the date of the search shall abate and the total income for such assessment years will have to be computed by the Assessing Officers as a fresh exercise; and that although Section 153A of the Act does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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