TMI Blog2022 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ions sought to be made and must be relevant for the belief formed regarding income having escaped assessment. We are of the view that completed assessment can be interfered with by the AO while making assessment under section 153A of the Act only on the basis of some incriminating material unearthed during the course of search which was not produced or not already disclosed or made known in the course of original assessment. We, therefore, are of the view that invocation of section 153A of the Act by the Revenue for assessment year 2007-08 was without any legal basis as there was no incriminating material qua the assessment order under appeal. Assessing Officer was not justified in making the addition on account of long-term capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong-Term Capital Gain (LTCG) at ₹ 9 Lacs instead of ₹ 7, 55, 401/-and the difference of ₹ 1, 44, 599/-was added to the declared income of the assessee, apart from disallowing the claim of deduction under section 80 C of the Act. 4. Assessee preferred appeal before the Ld. CIT(A) and the Ld. CIT(A) confirmed the addition. Thereupon, the assessee carried the matter in appeal to the Tribunal and the Tribunal by order dated 12/5/2016 set aside the assessment order to the file of the learned Assessing Officer to passed the assessment order de novo, after providing reasonable opportunity of being heard. 5. Subsequent thereto, in the second round, learned Assessing Officer issued notice under section 142 (1) of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition could be made under section 153A of the Act. 7. Ld. CIT(A), by way of impugned order observed that having gone through the observations/directions of the ITAT, he found that the direction was given to the learned Assessing Officer to provide reasonable opportunity of being heard to the assessee to decide the case but inasmuch as nothing new was submitted by the assessee, learned Assessing Officer had no option but to make the addition which was made during the earlier assessment proceedings and confirmed by the Ld. CIT(A) in the first round of litigation. Ld. CIT(A) therefore, held that in the absence of any new material, there were no grounds to interfere, and accordingly upheld the additions and disallowances. 8. Assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under section 143(3) of the Act, and as a matter of fact the plea taken by the assessee on this aspect was noted by the Ld. CIT(A) at paragraph No. 5 of his order at page No. 5. Ld. CIT(A) however did not advert to this vital aspect which impacts the assumption of jurisdiction of the learned Assessing Officer to make any addition, in a concluded assessment, in the absence of any incriminating material found during the subsequent search. 11. The Hon'ble Delhi High Court in the case of Pr. CIT vs. Sunny Infra Projects Ltd., (ITA.Nos.502, 503, 505 506/2016 dated 24.04.2017) held as under : 13. Consequently, the Court is of the view that the above document could not constitute incriminating material which could justify the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment 13. In the case of Pr. CIT vs. MeetaGutgutia (supra) Hon'ble Delhi High Court held at paras 69 to 72 as under : 69. What weighed with the Court in the above decision was the habitual concealing of income and indulging in clandestine operations and that a person indulging in such activities can hardly be accepted to maintain meticulous books or records for long. These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relevant for the belief formed regarding income having escaped assessment. 15. In view of the above, we are of the view that completed assessment can be interfered with by the Assessing Officer while making assessment under section 153A of the Act only on the basis of some incriminating material unearthed during the course of search which was not produced or not already disclosed or made known in the course of original assessment. We, therefore, are of the view that invocation of section 153A of the Act by the Revenue for assessment year 2007-08 was without any legal basis as there was no incriminating material qua the assessment order under appeal. Assessing Officer was not justified in making the addition on account of long-term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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