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TMI Blog2014 (12) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 has raised additional ground of appeal, which reads as under : "On the facts and in the circumstances of the case, the reassessment proceedings under s. 153A of the IT Act, 1961 should confine to the material in possession of the AO detected during the course of search and entire assessment is not open before him. As such, the addition made under s. 69A of IT Act, 1961 and sustained by the CIT(A) at Rs. 1,80,000 is without there being any material found in course of search and is beyond the scope of reassessment proceedings under s. 153A. The addition made by the AO and sustained by the learned CIT(A) deserves to he cancelled." 4. As regards the admission of additional ground of appeal, we are of the view that this ground of appeal is purely a legal issue and the relevant facts are already on record and, therefore, we admit this ground of appeal, keeping in view the decision of the Hon'ble Supreme Court in the case of National Thermal Power Ltd. v. CIT: (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC). 5. Briefly stated, the facts of the case are that the assessee is an individual, earning interest income and income from hiring charges. A search and seizure operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 139 of the Act was submitted on 22nd March, 2001. The return was filed prior to search in normal course, suo motu, disclosing particulars of income, which stood accepted by the ITO-l(3), Raipur. The learned counsel for the assessee submitted that the AO has not issued any notice under s. 143(2) of the Act and the time-limit for completion of assessment under s. 143(3) of the Act was upto 31st March, 2003. Therefore, the time-limit for issue of notice under s. 143(2) of the Act and the time-limit for completion of assessment under s. 143(3) had expired before the date of search. Therefore, there was no assessment pending in this case and, as such, in this case, there was no question of abatement. Therefore, addition could be made only on incriminating material found during the search. 9. In view of the above, Shri P.C. Jain Maloo, learned counsel for the assessee submitted that where AO has not referred to any incriminating material found during the search based on which addition was made, the AO has no jurisdiction to make addition in the assessment framed under s. 153A of the Act. 10. In support of the above contention, Shri P.C. Jain Maloo, learned counsel for the assessee r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other cases the Bench held that the assessment under s. 153A can be made on the basis of incriminating material which in the context of relevant provisions means books of account including other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the instant case, the assessment has been completed under s. 143(1) of the Act and the time-limit for issue of notice under s. 143(2) has expired before the date of search. Therefore, there was no assessment pending in this case and in such a case there was no question of abatement. Therefore, addition could be made only on the basis of incriminating material found during the course of search. 13. In the case of CIT v. Murli Agro Products Ltd. (supra), the Hon'ble High Court of judicature at Bombay (Nagpur Bench, Nagpur) held as under : "Once it is held that the assessment finalized on 29th Dec, 2000 has attained finality, then the deduction allowed under s. 80HHC of the IT Act as well as the loss computed under the assessment dt. 29th Dec, 2000 would attain finality. In such a case, the AO while passing the indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nil Kumar Jaswani, ITA Nos. 89/Blpr/2009 and 90/Blpr/2009, the CIT(A) confirmed the additions of Rs. 1,20,000 (wrongly-mentioned Rs. 2,65,000 in the ground of appeal) and Rs. 95,000 for the asst. yRs. 2000-01 and 2001-02 respectively under s. 68 of the Act being the amount of gifts received as unexplained. For the asst. yr. 2000-01 and 2001-02, the assessee filed returns of income with ITO, Ward-1(3), Raipur on 22nd Dec, 2000 and 21st March, 2002 respectively. Limitation under s. 153 of the Act for completion of assessments for these two years expired on 31st March, 2003 and 31st March, 2004 respectively. The search was conducted thereafter on 10th Nov., 2005. 20. In the case of Shri Anil Kumar Jaswani, the AO made addition of Rs. 12,25,000 under s. 68 of the Act on account of unexplained cash credit. The assessee filed the return of income for the asst. yr. 2001-02 on 18th March, 2002 under s. 139 of the Act. The return of income was processed under s. 143(1) of the Act. No notice under s. 143(2) of the Act was issued and the limitation for completion of the assessment expired on 31st March, 2004. Thereafter, search was conducted on 10th Nov., 2005. 21. In these cases also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, was filed before us. in the absence of any supporting evidence, we are of the view that the addition is fully justified. Therefore, we dismiss the appeal being devoid of any merit. ITA No. 88/Blpr/2009 27. This appeal filed by the assessee is directed against the order of learned CIT(A), Raipur dt. 15th May, 2009 relating to asst. yr. 2002-03. 28. In this appeal, the assessee has raised the following grounds- "On the facts and in the circumstances of the case disallowance of Rs. 2,50,000 on account of forfeiture of EMD made by the AO is beyond the scope of s. 153A of IT Act. 1961. The assessment should confine to material gathered during the course of search and therefore, the learned CIT(A) erred in sustaining the disallowance made by the AO. The disallowance is unjustified, unwarranted and uncalled for." 29. Briefly stated, the facts of the case are that the assessee is a partnership firm engaged in the business of manufacturing of various items from MC Wax. Search and seizure operation under s. 132 of the Act was carried out at the business and residential premises of Jaswani group on 10th Nov., 2005 including the residential premises of partners of the firm. The AO has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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