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TMI Blog2021 (9) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... s 153A was issued. At the time of search the assessment for the assessment year 2008-09 has attained finality and accordingly in terms of second proviso to section 153A such an assessment is to be treated as unabated and without any reference to any seized material or incriminating evidence found during the course of search. In the impugned proceedings, we find that the additions made by the Assessing Officer on account of valuation of the property are not based on any material found and seized during the course of search and seizure action. The fact of which has not been disputed by the revenue. 4. Before us, none appeared on behalf of the assessee and the matter is being adjudicated on hearing the arguments of ld. DR and based on the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the seized material. He relied upon the judgment of Hon'ble High Court in the case of CIT vs. Anil Kumar Bhatia. 7. After considering the aforesaid submissions and on perusal of the orders before us, we find that it is an admitted fact that the time for completion of original assessments has ended and the assessment proceedings attained finality at the time of search for these years. It is also undisputed that additions made by the AO is not based on incriminating material found during the course of search, albeit it is based on the assessment record only. 8. In such a situation, additions made are beyond the scope of 153A proceedings. This proposition of law has been well settled and reiterated by the Hon'ble Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y if during the course of search under Section 132 incriminating material justifying the re-opening of the assessments for six previous years is found that the invocation of Section 153A qua each of the AYs would be justified. 57. The question whether unearthing of incriminating material relating to any one of the AYs could justify the reopening of the assessment for all the earlier AYs was considered both in Anil Kumar Bhatia (supra) and Chetan Das Lachman Das (supra). Incidentally, both these decisions were discussed threadbare in the decision of this Court in Kabul Chawla {supra). As far as Anil Kumar Bhatia (supra) was concerned, the Court in paragraph 24 of that decision noted that "we are not concerned with a case where no incrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case there admittedly was none. Secondly, it is plain from a careful reading of the said two decisions that they do not hold that additions can be validly made to income forming the subject matter of completed assessments prior to the search even if no incriminating material whatsoever was unearthed during the search. 32. Recently by its order dated 6th July 2015 in ITA No. 369 of 2015 (Pr. Commissioner of Income Tax v. Kurele Paper Mills P. Ltd.), this Court declined to frame a question of law in a case where, in the absence of any incriminating material being found during the search under Section 132 of the Act, the Revenue sought to justify initiation of proceedings under Section I53A of the Act and make an addition under Section 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incriminating material; and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made." 16. Thus, the Hon'ble High Courts after detail analysis concluded that, whence there is no incriminating material qua each of the assessment year roped in under section 153A, then, no addition can be made while framing the assessment under section 153A. 17. The aforesaid principle and ratio are clearly applicable on the facts of the present case also, as admittedly no incriminating material relating to these assessment years or as a matter of fact for any of the assessment years were found during the course of search. 18. In the result, the appeal of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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