TMI Blog2022 (8) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A of the Act had to be confined only to material found in the course of search. Since no material on the basis of which the impugned addition has been made was found in the course of search, the addition made by the Ld. AO in the order of the assessment could not have been subject matter of proceedings under section 153A of the Act. Consequently, impugned addition could not be made. - Decided in favour of assessee. - ITA No. 305/Del/2019 - - - Dated:- 19-7-2022 - Shri Anil Chaturvedi, Accountant Member And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Rakesh Gupta, Advocate, Shri Somil Agarwal, Advocate And Shri Deepesh Garg, Advocate For the Department : Shri Ishtiyanque Ahmed, CIT(DR) ORDER PER ASTHA CHANDRA The appeal by the assessee is directed against the order dated 09.11.2018 of the Ld. Commissioner of Income Tax (Appeals)- XXVI, New Delhi ( CIT(A) ) pertaining to the assessment year ( AY ) 2013-14. 2. It is a case of search. Search was conducted on 16.09.2018 in the AMP Group of cases. Warrant of authorisation was issued in the name of M/s. Automobiles Component (India) Ltd., Now known as M/s. AGM Properties Pvt. Ltd. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment; assessment should be made on the basis of incriminating material found during the course of search. If these two conditions are not satisfied, there cannot be any valid assessment under section 153A of the Act. In the case of the assessee there was no pending assessment nor any incriminating material was found. Hence the assessment completed under section 153A is invalid. In any case, there cannot be any addition in the income. iv) Without prejudice to the above, it was also submitted that the assessment by itself is contradicting in as much as the AO himself admits that the assessee company was involved in providing accommodation entries. When it is so, the amount of Rs. 59,98,000/- provided by the assessee as an accommodation entry cannot be its income. Such amount could only be added in the hands of the person who had obtained the accommodation entry from the assessee. v) Reliance was placed on the following judgements:- (a) Meeta Gutgutia 395 ITR 526 (Del) (b) SKS Ispat and Power Ltd. 398 ITR 584 (Bom) (c) Deepak Kumar Agarwal and others 398 ITR 586 (Bom) (D) Best Infrastructure India Pvt. Ltd. 397 ITR 82 (Del) (e) Dipak Jashvantalal Panchal 397 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any addition of any amount when absolutely nothing was found during search was not applicable. 4. On the facts and in the circumstance of the case and in law the CIT(A)was incorrect and unjustified in holding that the judgment of the Hon'ble Delhi High Court as confirmed by the Hon'ble Supreme Court of India in the case of Kabul Chawala in as much as there cannot be any addition of any amount when absolutely nothing was found during search was not applicable to the facts of the case. 5. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect and unjustified in holding that there was a search on the assessee even when there is no Punchnama and no warrant in the case of the assessee. 6. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect and unjustified in holding that the assessee has not made any ground regarding the addition made by the AO since even when a ground has been raised that the assessing officer was unjustified in assessing the assessee at an income of Rs 61,22,800/-. 7. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect and unjustified in holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R relied on the decision of the Delhi High Court in Pr. CIT vs. Anand Kumar Jain (HUF ors.) 432 ITR 384 (Del) wherein the Hon ble Delhi High Court referred to the decisions in the case of CIT vs. Best Infrastructure (India) P. Ltd. (2017) 397 ITR 82 and CIT vs. Harjeet Aggarwal (2016) 290 CTR 263 and held that the statement recorded under section 132(4) of the Act cannot on a stand alone basis, without reference to any other material discovered during search and seizure operations, empower the AO to frame the block assessment. 7. We have given our careful thought to the rival submissions and perused the material available on record. To recapitulate the facts, it is an admitted position that for AY 2013-14 the assessee had originally filed its return of income under section 139(1) of the Act on 15.11.2014 and assessment under section 143(1) of the Act was completed on 15.11.2013. The time limit for issuance of notice under section 143(2) of the Act was upto 30.09.2014 but not notice under section 143(2) of the Act was issued upto 30.09.2014. On expiry of the aforesaid period for issue of notice under section 143(2) of the Act, the assessment for AY 2013-14 is deemed to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 15A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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