TMI Blog2022 (1) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... This appeal filed by the Revenue is directed against the order dated 3rd November, 2017 of the CIT(A)-26, New Delhi, relating to assessment year 2010-11. 2. The assessee has filed the CO against the appeal filed by the Revenue. For the sake of convenience, these were heard together and are being disposed of by this common order. 3. Facts of the case, in brief, are that the assessee is a company and belongs to MM Aggarwal Group of cases and is engaged in the business of preparation, manufacturing, packing and sale of soft drinks on the basis of concentrate and other raw material procured from Coca Cola in the capacity of bottler and distributor of Coca Cola products in India. It filed its original return of income on 08.09.2010 declaring an income of ₹ 1,96,490/-. A search action u/s. 132 of the Act was conducted in the case of M.M. Aggarwal group of cases on 28th March, 2015 during which the case of the assessee was also covered. During the course of search carried out at different premises located in India in M.M. Aggarwal group of cases, documents and data storage devices, etc., belonging to the assessee were found and seized. In response to the notice u/s. 153A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PBT 44,60,694.50 21,27,987.11 Share Capital 3,27,75,000.00 4,26,10,000.00 6. The AO, therefore, asked the assessee to substantiate with evidence to his satisfaction regarding the identity and credit worthiness of the investor companies and genuineness of the transactions. The AO also referred to the statement recorded of Shri Narender Kumar Jain, recorded u/s. 132(4) of the Act on 28.03.2015, the statement of Shri M.M. Aggarwal, director of the flagship company of MM group M/s. Moon Beverages Ltd., Shri Krishan Kumar, GM (Finance) of M/s. Moon Beverages Ltd., the statement of Shri Sanjiv Agrawal, promoter of M/s. M.M. Group and asked the assessee to establish the identity and credit worthiness of the investors who have subscribed to the share capital in the assessee company and genuineness of the transaction. 7. The assessee filed the details like confirmation, ITR, assessment particulars, MOA, audited financial results, bank statements, MCA site data, extract of all such investor companies to establish th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of the assessee u/s. 68 of the IT Act. 9. Before the CIT(A), the assessee, apart from challenging the addition on merit, challenged the validity of assessment u/s. 153A on the ground that no incriminating materials were found at the time of search. Regarding the share application money, it was argued that as on the date of search, no assessment proceedings was pending as notice u/s. 143(2) was not issued with respect to the original return. It was accordingly argued that no addition could be made on this issue in view of various decisions of the Tribunal and jurisdictional High Court. 10. So far as the merit of the case is concerned, it was argued that confirmation from all the five investors along with various documents such as statement of their bank account, share application form duly filled by the investor companies, confirmation in respect of allotment of equity shares, copy of PAN card of the investor companies, memorandum and articles of association of the investor companies depicting their corporate identity number, copies of share certificates issued by the assessee company, copies of acknowledgement of the IT return filed for AY 2010-11 by the investor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction u/s. 153A to utilize such material arising consequent to the search operation. The material so found and seized and thereafter relied upon and utilised thereon in the assessment of assessee leading the AO to conclude that the share application/capital received by the appellant are unexplained. But it is undisputed fact that the department found information in respect of the share certificates and the counterfoils thereof and other significant related material during the course of search operation that upon collating with the information received by the department lead to specific inputs in respect of doubtful nature on genuineness of equity infused in the companies of the group. The material so gathered is prima facie incriminating in its nature and substance so as to attract the provisions of S. 153A of the Act in the case of the appellant. The overall scheme that emerges therefrom indicates that there was prima facie material available in this regard to enable the AO to initiate the proceedings u/s. 153A. The assessee contentions in this regard as under- a) In respect of share certificate found during the course of search in respect of companies mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, these grounds of appeal are not sustainable. The ground no. 4(a) and 4(b) are therefore dismissed. 11.1. He however, deleted the addition on merit by observing as under:- 5.4 Regarding the merit, as per grounds of appeal no. 3, I have gone through the assessment order passed by and A.O. and verified the material placed on paper book and was part of the assessment records also. The summons were issued and duly delivered. Also necessary information and documents were requisitioned to verify the identity, genuineness of the transaction and credit worthiness of the investors by issuing notices u/s. 133(6) of the Act which were duly submitted by the respective investors. The notice u/s. 133(6) was given to:- a) M/s. Competent Infoways Private Limited b) M/s. Passion IT Solutions Private Limited c) M/s. Prince IT Solutions Private Limited d) M/s. Sterling Foils Limited e) M/s. Sidhbhoomi Alloys Limited 5.5 And information And documents requisitioned u/s. 133(6) were as under: i) Relevant extracts Statement of bank account statement of the investors showing payments made towards share application money. ii) Copies of allotment letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares application money. Reliance is also placed on the judgments in CIT v. Lovely Exports Pvt. Ltd. 319 ITR (ST.) 5 (SC), CIT v. Divine Leasing Finance Ltd. 299 ITR 268 (Del.), [SLP rejected by Hon'ble SC vide order dated 21.01.2008], CT=It vs Five Vision Promoters Pvt. Ltd. 65 taxmann.com 71 (Delhi HC), CIT v. Vrindavan Farms Pvt. Ltd. (ITA 71/2015) (Delhi HC), CIT V. Kamdhenu Steel Alloys Ltd. [2004] 361 ITR 0220 (Del HC). 5.8. It is pertinent to refer to the recent judgment dated 01st August 2017 in the case of Principal Commissioner of Income Tax, Delhi - 2 vs Best Infrastructure India Pvt. Ltd. ITA No. 13/2017 covers the case of the appellant on the facts. Relevant Para of the judgment is extracted below:- 31. In Principal Commissioner of Income Tax Central - 2, New Delhi v. Meeta Gutgutia (supra), this court had considered the entire gamut of case law on the assumption of jurisdiction under Section 153A of the Act. In Principal Commissioner of Income Tax Central-2, New Delhi v. Meeta Gutgutia (supra) this Court had the occasion to extensively discuss the decision in Smt. Dayawanti Gupta v. CIT (supra) to point out why the said decision was distinguishable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment years, preceding the year of search is a separate and distinct assessment. It was further held in the said decision that If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of power under section 153A of the Act and the earlier assessment shall have to be reiterated. 38. Before the learned CIT(A), the assessee had produced the copy of bank account of all share applicant companies. The CIT(A) has admitted the same as, additional evidence and has called for the remand report from the Assessing Officer. There is no cash deposit in the bank Account of any of the share applicant before the issue of cheque for share application money to the group companies of the assessee. On the other hand, the credit is by way of transaction. During remand proceedings, the Assessing Officer has made necessary verification from the bank of the share applicant and no adverse finding is recorded by him in the remand report. Therefore, the facts on record are contrary to the allegation of the Revenue that the assessee gave cash to Shri Tarun Goyal and he, after depositing the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is in appeal before the Tribunal by raising the following grounds:- 1. On the facts circumstances of the case the CIT(A) has erred in deleting the addition of ₹ 1,65,00,000/- made by AO on account of unexplained Share Capital and Share Premium u/s. 68 of the I.T. Act 1961. 2. On the facts circumstances of the case the CIT(A) has erred in holding the source of share capital genuine when it was specifically established that investor companies are paper companies. 3. The CIT(A) has erred on facts and in law in observing that requisite details and evidences filed by the assessee were sufficient to prove the genuineness of the transaction related to share capital/premium whereas the assessee failed to discharge the primary onus case upon it u/s. 68 of the IT act 1961 of proving identity, satisfactorily explaining the creditworthiness and genuineness of these transactions. 4. The Ld. CIT(A) has erred on facts and in law in not even considering the statements of directors of the investing companies admitting that the investing companies in which they are directors, are actually paper companies meant for providing accommodation entries. 5. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any incriminating material found during the course of search, such assessments framed u/s. 153A/143(3) is not in accordance with the law. 15. Referring to the order of the CIT(A) at para 5.2, he submitted that the ld. CIT(A) has held that the assessment proceedings were pending at the time of search and was abated and, therefore, the legal ground objected to by the appellant was not valid as such the same is bound to be rejected is factually incorrect since no proceedings were pending on the date of search. He submitted that identical findings were also given by the CIT(A) in the case of group companies. Referring to page 534-536 of the paper book, he submitted that identical finding was there in the order of the CIT(A) for AY 2013-14 in the case of M/s. Moon Beverages Ltd., where he has held as under:- Since assessment proceedings were pending at the time of search and was abated, the legal ground objected by the appellant is not valid as such, the same is bound to be rejected. 16. Referring to the decision of the Tribunal in the case of M/s. Moon Beverages Ltd., vide ITA No. 7374/Del/2017 for AY 2013-14 vide order dated 7th June, 2018, copy of which is placed at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, once the entries are recorded in the books of account, the same in our opinion cannot be construed as incriminating in nature..... 18. He submitted that Shri Sanjeev Aggarwal, vide letter dated 29th March, 2015 had made an offer of undisclosed income on behalf of M.M. Aggarwal Group of companies in respect of AY 2007-08 which was retracted by him within a period of two months i.e., 18th May, 2015. He submitted that there was no surrender in respect of the period under consideration, i.e., for AYs 2009-10 to 2015-16. Referring to various decisions in the case law compilation he submitted that when there was no surrender for the impugned assessment year, no incriminating material was found during the course of search and the assessment year is a non-abated assessment year, therefore, no addition could have been made in the order passed u/s. 153A/143(3) and the ld. CIT(A) was not justified in rejecting the legal ground raised before him. 18.1. He submitted that even otherwise also, the document relied upon for making the addition was found from the premises of the third party and, therefore, the addition could have only been made u/s. 153C of the IT Act and not u/s. 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finlease (P) Ltd., 342 ITR 169; (vii) CIT vs. Ultra Modern Exports (P) Ltd., 40 taxmann.com 458 (Del); (viii) CIT vs. NR Portfolio (P) Ltd., 29 taxmann.com 291 (Del); and (ix) CIT vs. Empire Buildtech (P) Ltd., 306 ITR 110 (Del). 20. He submitted that the ld. CIT(A) has incorrectly deleted the addition made by the AO holding that the assessee has proved the identity and credit worthiness of the shareholders and the genuineness of the transaction. Referring to the decision of the Hon'ble Delhi High Court in the case of PCIT vs NDR Promoters 410 ITR 379 and the decision of the Hon'ble Supreme Court in the case of PCIT vs. NRA Iron Steel Ltd., 103 taxmann.com 48, he submitted that mere production of certain papers do not discharge the ingredients of section 68 of the Act. He accordingly submitted that the ld. CIT(A) is not justified in deleting the addition on merit. 20.1. So far as the legal ground raised by the assessee in the CO challenging the validity of the assessment framed u/s. 153A/143(3) of the Act in absence of any incriminating material is concerned, he submitted that the ld. CIT(A) has correctly decided the issue and has held that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement recorded u/s. 132(4) of the Act, therefore, the same cannot constitute incriminating material so as to enable the AO to assume jurisdiction u/s. 153A of the Act. So far as the finding given by the ld. CIT(A) that the Department found information in respect of the share certificates and the counterfoils thereof and other significant related material during the course of search operation is concerned, he submitted that in a corporate office, the company is required to keep the share certificates and the same cannot be construed as incriminating in nature. It is also his submission that the assessee has proved the three ingredients of section 68 based on which the ld. CIT(A) has deleted the addition in the detailed order passed by him which is in accordance with law and, therefore, the grounds raised by the Revenue has to be dismissed. 23. Before deciding the issue on merit, we would first like to decide the legal ground raised by the assessee challenging the validity of assumption of jurisdiction u/s. 153A of the Act in absence of any incriminating material found during the course of search when the assessment was not pending as per ground No. 1 and 1.1 of the CO. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer on the basis of various post search enquiries conducted and statement recorded of various persons u/s. 132(4) and 131 made addition of ₹ 6,46,20,000/- in the hands of the assessee u/s. 68 of the I.T. Act on the ground that the assessee failed to substantiate with cogent evidence to his satisfaction regarding the identity and creditworthiness of the investor and the genuineness of the transaction. According to the Assessing Officer, since the assessee could not produce the directors/principal officers of the investor companies and since the returned income is meager considering the huge investment made by them in the shares of the assessee company with huge premium, therefore, the provisions of section 68 are clearly attracted. We find, in appeal, ld. CIT(A) deleted the addition made by the Assessing Officer on merit, the reasons for which have already been reproduced in the preceding paragraph. He however has dismissed the ground raised by the assessee challengin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is concerned, it is also his submission that statements recorded u/s. 132(4) cannot be construed as incriminating in nature in view of the various decisions cited. 46. It is also the submission of the ld. Counsel for the assessee that the investor companies have responded to the notice issued u/s. 133(6) of the Act by the AO and the same has not been doubted or disputed. Further, the assessee by producing all the relevant materials, has discharged the burden cast on it in terms of section 68 of the Act i.e., the identity and credit worthiness of the share applicants and the genuineness of the transaction. Not only this, the assessee has also proved the source of the source. Therefore, no addition u/s. 68 is called for. 46.1 Before deciding the issue on merit, we would first like to decide the legal ground raised by the assessee challenging the validity of the assumption of jurisdiction u/s. 153A in absence of any incriminating material found during the course of search when the assessment was not pending. As mentioned earlier, the original return was filed on 30th September, 2009 declaring income at ₹ 10,27,91,857/-. The assessment was completed u/s. 143(3) de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) expires on 30.09.2014 i.e. the notice u/s. 143(2) could not have been served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. Therefore, in absence of issue of any notice u/s. 143(2) and since no other proceedings are pending, therefore, it had attained the finality much prior to the date of search on 28.03.2015. Under these circumstances, the finding of the ld. CIT(A) that the assessment proceedings were pending at the time of search and was abated is factually incorrect. 36. We find the ld. CIT(A) at para 5 page 11 of his order has observed as under:- The basis of addition as taken by the A.O. was statement recorded of Shri Sanjeev Agarwal during the course of search wherein he has surrendered an amount of ₹ 88.52 crore out of which a sum of ₹ 30.78 crores were referred to for the assessment year 2008-09 and rest of amount was non descriptive and vague and surrendered subject to cross checking of the facts and to explain after access to the books of accounts. The said statement was retracted by said Shri Sanjeev Agarwal on 18.05.2015 within two months from the date of original statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of jurisdiction under Section 153A of the Act qua the Assessees herein was not justified in law. 39. We find the Hon'ble Delhi High Court in the case of CIT vs. Harjeev Aggarwal reported in 290 CTR 263 has observed as under:- 23. It is also necessary to mention that the aforesaid interpretation of Section 132(4) of the Act must be read with the explanation to Section 132(4) of the Act which expressly provides that the scope of examination under Section 132(4) of the Act is not limited only to the books of accounts or other assets or material found during the search. However, in the context of Section 158BB(1) of the Act which expressly restricts the computation of undisclosed income to the evidence found during search, the statement recorded under Section 132(4) of the Act can form a basis for a block assessment only if such statement relates to any incriminating evidence of undisclosed income unearthed during search and cannot be the sole basis for making a block assessment. 40. The Co-ordinate Bench of the Tribunal in the case of Brahmaputra Finlease (P) Ltd. vide ITA No. 3332/Del/2017 order dated 29.12.2017, following the above decision of the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year i.e. it is not pending then the same cannot be subject to tax in proceedings u/s. 153A of the I.T. Act. This of course would not apply if incriminating materials are gathered in the course of search or during the proceedings u/s. 153A which are contrary to and/or nor disclosed during the regular assessment proceedings. 44. The Hon'ble Delhi High Court again in the case of Pr. CIT vs. Lata Jain reported in 384 ITR 543 has held that in absence of any incriminating material found as a result of search, assumption of jurisdiction u/s. 153A was not in accordance with law. The various other decisions relied on by the ld. counsel for the assessee also supports his case. The Hon'ble Supreme Court in the case of CIT vs. Sinhgad Technical Education Society reported in 397 ITR 344 has upheld the decision of Hon'ble Bombay High Court wherein the Hon'ble High Court had upheld the decision of the Tribunal holding that the incriminating material which was seized has to pertain to the assessment years in question and it is an undisputed fact that the documents which were seized did not establish any co-relation, document-wise, with these four assessment years. 45. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined the documents produced by the Assessee and came to the conclusion that in the assessment framed earlier under Section 143(3) of the Act, the Revenue had accepted the amount received by the Assessee as share capital. It was held that there was no evidence to take a different view in the matter. 6. Aggrieved by the above order, the Revenue filed an appeal before the ITAT and the Assessee filed its cross objections. The cross-objections were on the basis of the decision of this Court in CIT v. Kabul Chawla 2015(380) ITR) 573 wherein it was held that if no incriminating material was found at the time of search the addition would be unjustified. 7. At the outset it is required to be noticed that the Revenue's appeal against the decision of this Court in Kabul Chawla (supra) has been dismissed by the Supreme Court on account of the low tax effect. However, learned counsel for the Revenue states that there are other appeals of the Revenue pending in the Supreme Court questioning the correctness of the said decision. Nevertheless the fact remains that there is no stay of the operation of the decision of this Court in Kabul Chawla (supra) and it continues to hold the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome u/s. 115JB at ₹ 1,19,22,760/-. We find the search took place in the instant case on 28th March, 2015 and on the date of search, the assessment was not pending. It is also an admitted fact that no incriminating material relating to the share application money was found during the course of search and the entire addition of ₹ 3,66,00,200/- is based on pre-search verification or post-search enquiries and statements recorded u/s. 132(4) of the Act. It is also pertinent to mention that the statements recorded u/s. 132(4) relates to either MSG Finance India Pvt. Ltd. or Heritage Beverages Pvt. Ltd. and does not relate to the assessee, i.e., M/s. Versatile Polytech P. Ltd. Therefore, the question that has to be answered is as to whether the addition u/s. 153A in absence of any incriminating material found during the course of search can be sustained. 21. We find an identical issue had come up before the Tribunal in the case of the sister concern, namely, Moon Beverages Ltd. (supra). We find the Tribunal, relying on various decisions held that no addition could have been made u/s. 153A since the assessment was not abated and the addition was made on the basis of stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered all the necessary and relevant proof thereof as such. Since the assessment proceedings were pending at the time of search and was abated, the legal ground objected as such by the appellant was not valid as such the same is bound to be rejected. 37. We further find from the order of the ld. CIT(A) that there was no surrender of income for the impugned assessment year and the surrender was only for the assessment year 2008-09 which too was retracted within two months. He has also observed that the statement was non descriptive and vague and subject to cross checking of fact to be explained after access to books of accounts. We, therefore, find merit in the submissions of the ld. counsel for the assessee that the addition made by the Assessing Officer u/s. 68 of the I.T. Act is not based on any incriminating material and is based on statements recorded during search u/s. 132(4) and post-search enquiries. 38. The Hon'ble Delhi High Court in the case of CIT vs. Best Infrastructure (India) (P) Ltd. reported in 397 ITR 82 has held that statements recorded u/s. 132(4) of the I.T. Act do not by themselves constitute incriminating material. The relevant observation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia) private limited (supra), despite the admission of accommodation entry in statements under section 132(4) of the Act, the court held that the statement do not constitute as incriminating material. In the instant case, neither is there any statement of any accommodation entry operator claiming that any entry was not provided nor any director has admitted that assessee obtained accommodation entry. Thus, the case of the assessee is on better footing then the case of Best Infrastructure (I) P. Ltd. (supra). In such facts and circumstances, respectfully following the decision of the Hon'ble Delhi High Court in the case of best infrastructure (India) private limited (supra), we do not have any hesitation to hold that the statement under section 132(4) of Sh. Sampat Sharma cannot be treated as incriminating material found during the course of search. In the result, we hold that addition of share capital in the year under consideration has been made without relying on any incriminating material found during the course of search. 41. In the light of the above decisions, statements recorded u/s. 132(4) of the I.T. Act, 1961 cannot constitute as incriminating material. 42. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) and post-search enquiry and no incriminating material was found/seized during the course of search, therefore, following the decisions cited (supra), we hold that no addition could have been made u/s. 153A since the assessment was not abated in the instant case. In view of the above, we hold that the ld. CIT(A) was not justified in upholding the action of the Assessing Officer in assuming jurisdiction u/s. 153A of the I.T. Act. Accordingly, the addition made by the Assessing Officer and upheld by the ld. CIT(A) in the 153A assessment proceedings being void ab-initio are deleted. 22. Therefore, we do not find any infirmity in the order of the CIT(A) in deleting the addition made by the Assessing Officer in the absence of any incriminating material found during the course of search. Even though the Revenue has filed an appeal, the grounds of which are already reproduced in the preceding paragraphs, however, the Revenue has not challenged the order of the CIT(A) deleting the addition in absence of any incriminating material found during the course of search. Therefore, the order of the CIT(A) is upheld on the legal ground. Since the order of the CIT(A) deleting the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the case of the revenue that any notice u/s. 143(2) of the Act was issued or served before the prescribed time limit and, therefore, the assessment on the date of search was not pending. Since the addition made by the Assessing Officer is not based on any incriminating material found during the course of search and addition has been made on the basis of post-search enquiry and on the basis of statements recorded u/s. 132(4) of the Act, therefore, the same cannot constitute incriminating material so as to enable the Assessing Officer to assume jurisdiction u/s. 153A of the Act. 39. Before adverting to the merits of the case, we deem it necessary to deal with the legal ground raised by the assessee challenging the validity of the assumption of jurisdiction u/s. 153A of the Act, in absence of any incriminating material found during the course of search when the assessment was not pending. It is an admitted fact that the original return of income was filed on 26.09.2013 which was processed u/s. 143(1) of the Act. The period for issue of notice u/s. 143(2) expired by 30.09.2014 i.e. the notice u/s. 143(2) could not have been served on the assessee after the expiry of six mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id case, there was a factual finding to the effect that the Assessees were habitual offenders, indulging in clandestine operations whereas there is nothing in the present case, whatsoever, to suggest that any statement made by Mr. Anu Aggarwal or Mr. Harjeet Singh contained any such admission. 39. For all the aforementioned reasons, the Court is of the view that the ITAT was fully justified in concluding that the assumption of jurisdiction under Section 153A of the Act qua the Assessees herein was not justified in law. 42. Further in CIT vs. Harjeev Aggarwal reported in 290 CTR 263 (Del) Hon'ble Court observed that,- 23. It is also necessary to mention that the aforesaid interpretation of Section 132(4) of the Act must be read with the explanation to Section 132(4) of the Act which expressly provides that the scope of examination under Section 132(4) of the Act is not limited only to the books of accounts or other assets or material found during the search. However, in the context of Section 158BB(1) of the Act which expressly restricts the computation of undisclosed income to the evidence found during search, the statement recorded under Section 132(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en stated above, the addition of ₹ 39 lacs was not made on the basis of any incriminating material, but is based on statements recorded during the search u/s. 132(4) and post-search enquiries. It has been held in various decisions that completed assessments cannot be disturbed u/s. 153A in absence of any incriminating material. We shall refer to the leading cases on this aspect. 47. The Hon'ble Delhi High Court in the case of Kabul Chawla reported in 380 ITR 573 has held that the completed assessment can be interfered with by the Assessing Officer while making the assessment u/s. 153A only on the basis of some incriminating material found on or during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or not known in the course of original assessment. Following the above decision, the Hon'ble Jurisdictional High Court in the case of CIT vs. Meeta Gutgutia reported in 395 ITR 526 has taken a similar view and has held that once the assessment has attained finality for a particular year i.e. it is not pending then the same cannot be subject to tax in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court in the case of PCIT vs. M/s. L.T. Foods Pvt. Ltd., vide ITA No. 67/2020 and CM No. 4576-77/2020, order dated 4th February, 2020 wherein the Hon'ble High Court has observed as under:- The Revenue appeals against the order dated 03.07.2019 passed by the Income Tax Appellate Tribunal, Delhi Bench 'D', New Delhi in ITA No. 4162/Del/2013 and ITA No. 4044/Del/2013. The first was an appeal preferred by the assessee and the second was an appeal preferred by the Revenue in relation to the Assessment Year 2005-06. The Tribunal allowed the appeal of the assessee and disallowed the appeal of the Revenue on the premise that the Revenue had not been able to establish that any of the additions made during the course of the assessment proceedings were premised on any incriminating material found during the search of the Dawat Group of Companies - to which the assessee belongs. The Tribunal has held in paragraph 40 of the impugned order as follows: 40. We have carefully considered the rival contention and perused the orders of the lower authorities. It is apparent that on the date of initiation of search on 10/2/2009 the assessment proceedings u/s. /143( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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