TMI Blog2021 (7) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Member For the Assessee : Sh. H.K.Choudhary, CIT(DR) For the Revenue : Shri Ved Jain, CA ORDER PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, Asst. Commissioner of Income Tax, New Delhi (hereinafter referred to as the revenue ) by filing the present appeal sought to set aside the impugned order dated 24.11.2016 passed by the Commissioner of Income-tax (Appeals)-23, New Delhi qua the assessment year 2012-13 on the grounds inter alia that : 1. The order of Ld. CIT(A) is not correct in law and facts. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of ₹ 9,78,54,242/- made by the Assessing Officer on account of gain on sale of investment. 3. The appellant craves, leave to add, amend any/ all grounds of appeal before or during the course of hearing of the appeal. 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : On the basis of search and seizure operations conducted on 03.10.2013 u/s 132 of the Act in Jakson Group of companies, statement of assessee was recorded and consequently proceedings u/s 153A were initiated. In response to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/Del./2017, ACIT Vs. Sameer Guptab dated 31.07.2018 23.08.2017 which has been further confirmed by Hon ble High Court vide order passed in ITA No. Pr. Commissioner of Income Tax (Central)-1 Vs. Sameer Gupta dated 02.02.2018, ITA No. 169/2018 CM Appl. 5356/2018 dated 12.02.2018. This factual position has not been controverted by Ld. DR for the revenue. 7. Ld. CIT(A) decided the issue in favour of the assessee by following his own order passed in case of Sameer Gupta by returning findings as under :- Ground nos. 02, 03, 04, 05 09 are similar to that taken in the appeals in the \ case of Sh. Sameer Gupta, brother of appellant, in AYs 2011-12 2012-13 and have been considered by me at paras- 4.1 to 4.4 in my order dt. 23.11.2016 in A.Nos. 180 188/16-17 wherein on similar facts I have held that the impugned re-assessment orders cannot be sustained and I have quashed the re-assessment order in those cases. The facts of the matter in this case in both the years are the same/similar and therefore reiying on my order in the case of Sh. Sameer Gupta (supra) I hold similarly injhese two appeals as well. 4.3 The facts of the matter taken in ground no. 08 relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith section 143(3) of the Act in the light of the fact that no incriminating material was found during the search operation, the entire addition has been made by the AO is on the basis of post search inquiry. There is not an iota of material nor any such ground raised by the revenue if any incriminating material was found and the entire case is based upon the sole statement of Sandeep Gupta, the Ld. CIT(A) has rightly decided the issue in favour of the assessee by following decision rendered by Hon ble Delhi High Court in case of CIT vs. Kabul Chawala cited as 21 taxmann.com 412. Otherwise all the transaction relating to capital gain arisen during the year under consideration have already been recorded in the books of accounts. So, in these circumstances in the absence of any incriminating material found in the course of search in the case of completed assessments no addition can be made u/s 153A read with section 143(3). 9. Coordinate bench of Tribunal while deciding case of Sameer Gupta, son of assessee arisen out of same search proceedings and key person of M/s. Jakson Group decided the identical issue in favour of the assessee by returning following findings : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of search . Therefore, the said decision in our opinion is not applicable to the facts of the present case. 26. It has come to our notice subsequent to the hearing that the Hon'ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia reported in 2017 (5) TMI 1224 has held that addition cannot be made in absence of any Incriminating material and the decision in the case of Smt. Dayawanti Gupta has been duly considered. So far as the decision of Hon'ble Kerala High Court in the case of E. N. Gopal Kumar (supra) relied by the Ld. Dr is concerned, we find the said decision is of a non-jurisdictional High Court and the Tribunal is bound by the decision of the Jurisdictional High Court. Since the Hon'ble High Court in a number of cases recently has held that addition cannot be made in order passed u/s. 153A r.w.s. 143(3) in absence of any incriminating material found during the course of search in the case of completed assessments, therefore, we do not find any infirmity in the order of the CIT(A) deleting the addition in absence of any incriminating material found during the course of search. 27. We further find the revenue has not challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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