TMI Blog2021 (11) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... REME COURT ] also apply on the facts of the case wherein it has been held that if there is no incriminating material relating to a particular year, assessment of that year could not be reopened. This view has been reiterated by the Hon'ble Jurisdictional High Court in the case of PCIT Vs. SMC Power Generation Ltd. [ 2019 (7) TMI 1393 - DELHI HIGH COURT ] Assuming that there is a substantial time gap between the date of advance received and date of cancellation of the bookings, this fact may raise a strong presumption on cessation of liability, but even this presumption cannot justify the assessment u/s 153C of the Act which has to be based upon incriminating material found at the time of search as per the ration laid down by the Hon'ble Supreme Court and the Hon'ble Jurisdiction High Court of Delhi [supra]. We, therefore, do not find any error or infirmity to interfere with the findings of the ld. CIT(A). Ground raised by the Revenue stand dismissed. - ITA No. 5154/DEL/2016 - - - Dated:- 8-11-2021 - Shri N.K. Billaiya, Accountant Member, And Ms. Suchitra Kamble, Judicial Member For the Assessee : Dr. Rakesh Gupta, Adv., Shri Somil Agarwal, Adv For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount Date of Cancellation 1 A-74SF Yoginder R/ o Post office Tigaoti, Distt Faridabad, Haryana 28,95,500 1-May-08 2,75,000 25-Jul-09 10-Sep-08 1,90,000 19-Dec-08 1,90,500 12-May- 3,95,000 12-May- 8,95,000 12-May- 9,50,000 2 A-19 GF Avtar Singh R/o Post Office Tigaoti, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 D-20SF Pooja Thakur R/ o Plot No 100, pkt 2 Sector 4,85,000 6-]un-08 2,30,000 31-Aug-09 9-Nov-08 2,55,000 7 D-21SF Sonu Kumar R/ o Village jonapur, Mehrauli, Delhi 5,70,000 10-Jun-08 1,72,000 31-Aug-09 15-Jul-08 1,60,000 13-Nov-0 8 2,38,000 8 D-22GF Virender Singh R/ o Village Kot, Distt. 8,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-Apr-09 7,70 700 12 B-51 SF Raj Kumar R/ o Village Dumoli Kburd, 7,20,000 10-Sep-08 1,90,000 25-Apr-09 5-Oct-08 2,40,000 22-Dec-08 2,90,000 13 B-58 SF Suni! Kumar R/ o G-20/52, Sector 7 Robini, 5,20,000 10-Sep-08 1,90,000 25-Apr-09 22-Dec-08 3,30,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-Jun-09 7,35,000 18 D-13 SF Surender R/ o Village Rehlpa, Gurgaon Haryana 7,70,000 10-Sep-08 1,90,000 25-Apr-0 9 27-Dec- 3,90,000 13-Jan- 1,90,000 19 D-17 SF Sanjay R/ o Village Madan Pur, 7,35,000 10-Sep-08 1,90,000 25-Apr-09 29-Sep- 2,10,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to various judicial decisions, the ld. CIT(A) held as under: 4.1.5 In this case the return of income was originally filed on 15.10.2010 u/s 139 of the Act and the notice u/s 153C was issued on 05.02.2015 in response to which the appellant vide letter dt. 16.02.2015 stated that the return filed u/s 139 be treated as return filed in response to notice u/s 153C of the Act. Since notice u/s 143(2) could be issued in response to the original return of income by 30.09.2011, as on 05.02.2015 the original assessment stood completed in terms of the judgment of the Hon ble Delhi High Court in the above cases and in CIT Central-Ill vs. Kabul Chawla [2015] 61 taxmann.com 412 (Delhi), 234 Taxman 300, CIT (Central)-I Vs Jakson Engineers Ltd. 2015 TIOL 2789 HC DEL IT order dated 07.12.2015 in ITA Nos.910 to 913/2015, CIT vs Continental Warehousing Corporation (374 ITR 645) (2015), (2015) 58 taxmann.com 78 (Bom) and All Cargo Global Logistics Ltd. vs DCIT in ITA No. 1969 of 2013 etc. This stand has been accepted by the CBDT as clarified in the Circular No. 24/2015 dt. 31.12.2015 wherein following the judgment of the Hon ble Supreme Court in M/s Calcutta Knitwears in Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 as reproduced at para-5 of the assessment order. The AO, observing that the bookings were cancelled as the parties were unable to complete the formalities and make balance payments, held that the said amount not refunded thus stand forfeited though the reply of the assessee quoted in the assessment order states that the said amount was refundable and the appellant had offered those persons space/flats in other projects, and while the AO has stated that neither during search/post-search proceedings nor assessment proceedings the assessee has furnished any documentary evidence to show that it has not forfeited the above amount upon cancellation he has not brought on record in the assessment order any adverse material found during the search which could suggest that the said booking amounts in respect of cancelled flats had been forfeited by the appellant. Thus, even otherwise the addition is based on assumptions and not on seized or any other material evidence which could be termed incriminating and suggestive of unaccounted transactions or concealment of income, and therefore the additions could not have been made in the reassessment u/s 153C of the Act in terms of jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and did not abate. 18. The ratio laid down by the Hon'ble Jurisdictional High Court of Delhi in the cases of Kabul Chawla and Meeta Gutgutia [supra] squarely apply which means that the addition could be made only in respect of the issue in respect of which incriminating material was found. 19. Even if we consider the list of allottees whose bookings were cancelled as mentioned elsewhere, the date of advance received mentioned therein do not pertain to the A.Y under consideration. We are of the considered view that the decision of the Hon'ble Supreme Court in the case of Singhad Technical Education Society 397 ITR 343 also apply on the facts of the case wherein it has been held that if there is no incriminating material relating to a particular year, assessment of that year could not be reopened. 20. This view has been reiterated by the Hon'ble Jurisdictional High Court in the case of PCIT Vs. SMC Power Generation Ltd in ITA No. 406/2019 order dated 23.07.2019. 21. Assuming that there is a substantial time gap between the date of advance received and date of cancellation of the bookings, this fact may raise a strong presumption on cessation of liability, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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