TMI Blog2022 (2) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... as been made by the assessee during recording of statement. Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] held that in case of completed assessment no addition can be made under Section 153A of the Act when no incriminating material was found. Now this issue is no longer a res integra have been decided by various High Courts on the principle that no addition under Section 153A and 153C of the Act in the absence of no incriminating material found in the search - addition merely on the basis of a bald statement under Section 153A of the Act, hence order to be deleted - Decided in favour of assessee Unexplained investment in purchasing 50,000 equity shares - HELD THAT:- In order to make addition Assessing Officer has not relied upon any incriminating material alleged to have been seized during the search and seizure operation nor any such incriminating material was there to make such addition. So we are of the considered view that the addition made by the Assessing Officer and confirmed by the ld. CIT (Appeals) is not sustainable in the eyes of law, hence order to be deleted. Consequently, ground No. 6 is also decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no separate addition of ₹ 50,000/- in the hands of assessee is sustainable, hence order to be deleted. - I.T.A. Nos. 4443, 4444 & 4445/Del/2018 - - - Dated:- 7-2-2022 - Shri G.S. Pannu, President And Shri Kuldip Singh, Judicial Member For the Assessee : Shri Vinod Kumar Bindal, C. A.; And Ms. Rinky Sharma, ITP.; For the Department : Shri J. K. Mishra [CIT] D.R.; ORDER PER BENCH : The captioned appeals bearing identical question of law and facts are being taken up for disposal by way of composite order to avoid repetition of discussion. 2. Appellant Shri Hitesh Mittal (hereinafter referred to as the assessee by filing aforesaid appeals sought to set aside the impugned orders dated 11.03.2016, 16.03.2018 and 16.03.2018 passed by Commissioner of Income Tax (Appeals) 2, Gurgaon [hereinafter referred to CIT (Appeals)], for assessment years 2011-12, 2012-13 and 2014-15 respectively by partly allowing the appeals filed by the assessee on the grounds, inter alia, that: ITA. No. 4443/Del/2018 (assessment year : 2011-12) : 1. The ld. CIT (A) erred in law and on facts in passing the appellate order on CF6/03/2018 thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the premises at the time of search; and Thus the addition made on surmises and presumptions by ignoring the settled principles of law and confirmed by the CIT (A) must be deleted. 6. The learned CIT(A) erred in law and on facts in confirming an addition of Rs. ; 10,00,000/- towards unexplained investment made in acquiring 50,000 equity / shares of M/s Indian Treat (P) Ltd. when no incriminating material was found j in the search and the source of the said investment was from the regular bank accounts / audited balance sheet declared in the return of income filed earlier under section 139 of the Act. Thus the addition made on surmises and presumptions by ignoring the settled principles of law and confirmed by the CIT (A) must be deleted. 7. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing. ITA. No. 4444/Del/2018 (assessment year : 2012-13) : 1. The learned CIT(A) erred in law and on facts in passing the appellate order on 16/03/2018 though she was undertaking appellate proceedings in the case of the appellant till 26/03/2018 by issuing query letters and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year : 2014-15) : 1. The learned CIT(A) erred in law and on facts in passing the appellate order on 16/03/2018 though she was undertaking appellate proceedings in the case of the appellant till 26/03/2018 by issuing query letters and seeking information, the replies of which do not find place in the appellate order. Thus, the appellate order is totally void ab initio and illegal, rather calls for a vigilance enquiry in the case as how and why this happened as this is not the first time as earlier} also in the penalty proceedings the same methodology was adopted by the same CIT(A). Necessary directions should be issued for the same. 2. The learned CIT(A) erred in law and on facts in confirming the best judgment assessment u/s 144 alleging non-cooperation of the assessee and non-furnishing of the desired information; which is not correct as the assessee duly participated in the assessment proceedings and also furnished all the desired details / documents sought by the Department. Thus the assessment so framed must be annulled being bad in law. 3. The learned CIT(A) also erred in law and on facts by not appreciating the facts and adverse recording in the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e: on the basis of search and seizure operation conducted under Section 132 of the Income Tax Act, 1961 (for short the Act) at the residential and business premises of M/s. Shri Vishnu Overseas Pvt. Ltd. and Shri Vishnu Eatables India Ltd. group of cases and bank lockers of the assessee on 17.01.2014, notice was issued to the assessee who has filed return of income on 19.10.2015, 30.11.2015 for assessment years 2011-12 and 2012-13, whereas no return has been filed by the assessee for assessment year 2014-15. In spite of numerous opportunities allegedly given by the Assessing Officer to the assessee to file reply to the notice issued under Section 142(1) of the Act, none appeared nor filed any required information and consequently the Assessing Officer proceeded to make addition of ₹ 8,33,333/- on account of renovation of the house made by the assessee out of his undisclosed income and made addition of ₹ 10,00,000/- on account of purchasing 50,000 shares @ ₹ 10/- (face value) plus premium of ₹ 10/- being unexplained investment for assessment year 2011-12. 3.1 Assessing Officer also made addition of ₹ 20,64,300/- on account of investment made as a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. It is settled principal of law that when no incriminating material is found during the year under consideration, particularly when assessment for the year under consideration is completed one, no addition can be made. 8. More particularly when we examine the statement of Shri Hitesh Mittal available at page 50 of the paper book, it does not support the Revenue, because neither the flat was purchased during the relevant period nor any declaration has been made by the assessee during recording of statement. Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla (2016) 380 ITR 573 (Del.) held that in case of completed assessment no addition can be made under Section 153A of the Act when no incriminating material was found. Now this issue is no longer a res integra have been decided by various High Courts on the principle that no addition under Section 153A and 153C of the Act in the absence of no incriminating material found in the search. 9. So in view of the matter we are of the considered view that the Assessing Officer as well as the ld. CIT (Appeals) have erred in making addition merely on the basis of a bald statement under Section 153A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t situated at Goodwill Apartments, Mumbai, it is not made on the basis of any incriminating material nor any such incriminating material was seized. So it is settled principle of law that when addition made during framing of assessment under Section 153A of the Act is not on the basis of any incriminating material it is not sustainable in the eyes of law. 15. While arguing on merits, the ld. AR for the assessee contended that the details of the property purchased by the assessee qua addition of ₹ 20,64,300/-has been made, is duly given in the return of income and property has been purchased by making payment from a regular account maintained with HDFC Bank and drew our attention towards page Nos. 48, 49 and 52 of the paper book. However, ld. DR for the Revenue relied upon order passed by the ld. CIT (Appeals). 16. We have examined the financials of assessee available at page 47 to 50 of the paper book. Bank account of the assessee available at page 47 and 48 of the paper book shows that complete narration for making investment in purchasing the property in question is made and the entire money paid is appearing in the ledger account maintained by the HDFC Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brother, sister-in-law and wife at the time of search, the father of the assessee offered an undisclosed value of jewellery to the tune of ₹ 1,28,03,044/- (which includes the value of ₹ 80,81,217/- of the jewellery not seized as per Circular No. 1916 dated 11.05.1994 at the time of search as per return of income filed by Shri Subhash Chandra Mittal, father of the appellant available at page 23 of the paper book and computation of income at page 24 of the paper book. 23. The ld. DR for the Revenue in order to repel the arguments addressed by ld. AR for the assessee contended that when Shri S. C. Mittal, father of the assessee has offered an undisclosed income of ₹ 2,25,00,000/- for 2014-15 for tax during the course of search and seizure proceedings, but filed the return for ₹ 1,47,00,000/-, the amount of ₹ 52,32,179/- added to the income of the assessee on account of jewellery seized from his residence at Mumbai is not included in the same. 24. The ld. AR for the assessee relied upon a decision rendered by the Tribunal in the case of Pallavi Mittal in appeal bearing No. 1794/Del/2018 dated 21.09.2021, which was part of the search and seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Silver - - - Pallavi Mittal Value Seized Released (Joint with other 8 family members) cash - - Jewellary - - - Silver - - - Pallavi Mittal (Locker No. 6A UBI Kaithal) Jewellary 4148174 1414638 2733536 SHRUTI MITTAL Value Seized Released (Locker No. 4 KOTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search was belonging to his uncle, Shri Yogesh Mittal, who had duly shown the same in his return of income filed for assessment year 2014-15 being part of his additional income of ₹ 77,00,000/-. Ld. AR for the assessee taken us to the statement of assessee recorded during the search and seizure operation available at page 74 of the paper book wherein he has categorically stated that the cash amount of ₹ 50,000/- seized belongs to his uncle, Shri Yogesh Mittal. 28. Perusal of the Panchnama available at page 79 to 83 of the paper book categorically shows that Shri Yogesh Mittal has declared income of ₹ 77,00,000/- in assessment year 2014-15 which includes cash of ₹ 6,00,000/- and this Panchnama does not disclose any such cash attributed to the assessee. 29. When the statement made by assessee during search and seizure operation that the cash of ₹ 50,000/- belongs to his uncle, Shri Yogesh Mittal, which stood corroborated from the fact of additional income declared by Shri Yogesh Mittal on account of search and seizure operation in assessment year 2014-15 to the tune of ₹ 77,00,000/- including cash of ₹ 6,00,000/-, no separate a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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