TMI Blog2022 (9) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2010-11 was the year of completed assessment or unabated assessment. On being specifically asked from the CIT-DR, CIT-DR did not dispute the above noted facts and could not point out any incriminating material in the hands of the AO supporting the additions made by him in the assessment order dated 29.12.2017 passed u/s 153A r.w.s 143(3) - We are compelled to hold that the ld.CIT(A) was right in granting relief to the assessee by following the judgement of Kabul Chawla (supra) wherein their Lordships, speaking for the jurisdictional High Court, categorically held that when, on the date of search, the assessment already stood completed, therefore, no new incriminating material was unearthed during the search, no additions could have been made to the income already assessed in the hands of the assessee for AY 2010-11. Grounds of the Revenue are dismissed. - ITA No.5110/Del/2019 - - - Dated:- 30-8-2022 - SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER Assessee by: Shri Ved Jain, CA Ms Supriya Mehta, CA Revenue by: Ms Sapna Bhatia, CIT, DR ORDER PER C.M. GARG, JM: This appeal has been filed by the Revenue again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1962 and in deleting the addition made on account of unsecured loan in spite of the failure of the assessee to establish the genuineness of the unsecured loan during the assessment as well as remand proceedings. The ld. CIT-DR submitted that the AO has made addition by taking right recourse and legal premise which was deleted by the ld.CIT(A) without any basis and reasoning. Therefore, the impugned first appellate order may kindly be set aside by restoring that of the AO. 4. Replying to the above, the ld. Counsel of the assessee submitted a written submission and reiterated the same and submitted that the issue is squarely covered in favour of the assessee by the judgement of the Hon ble jurisdictional High Court of Delhi in the case of CIT vs. Kabul Chawla (supra) and other subsequent judgements and, therefore, the first appellate order may kindly be upheld. The ld. Counsel also submitted that the ld.CIT(A) has not admitted any new or additional evidence in violation of Rule 46A of the Rules, and, as such, the ground No.3 of the Revenue being misconceived, all the grounds of the Revenue including ground No.3 may kindly be dismissed by confirming the first appellate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s 153A/143((3) of the Act. 4. Hon ble Delhi High Court in the case of CIT v. Kabul Chawla in ITA No. 707, 709 and 713/2014, pronounced on 28.08.2015, has held as under: 37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A. (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in the present case is with respect to deletion of addition by the Ld. CIT(A) by holding that in the absence of any incriminating material, the completed assessment could not be interfered with. We find that the Hon ble Delhi High Court and the Delhi Benches of the Tribunal by following the decision of Hon ble Delhi High Court in the case of CIT vs., Kabul Chawla (supra), has been consistently holding that in absence of any incriminating material, no addition could be made when the assessment orders have attained finality. Considering the totality of the facts and circumstances of the case and in absence of any contrary binding decision of jurisdictional High Court we find no reason to interfere with the order ofLd. CIT(A) and thus, we dismiss the ground raised by the Revenue. 6. The above judgement is recently followed by Hon ble Delhi High Court in the case of PCIT vs Shri Rathi Steels (Dakshin) Limited bearing ITA No. 74/2020 dated. 20.01.2022 wherein Hon ble Court dismissed the appeal filed by the department and has held as under: 5. This Court in the case of Principal Commissioner of Income Tax vs. Bhadani Financiers Pvt. Ltd., 2021 SCC OnLine Del 4430 has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he result, the appeals of the Revenue in ITAs No. 4971/Del/2017 and 4972/Del/2017 concerning Assessment Years 2009-10 and 2010-11 are dismissed. 8. The ratio laid down in the judgment of Kabul Chawla (Supra) has consistently been followed by the following judicial pronouncements as under: PRINCIPAL COMMISSIONER OF INCOME TAX, DELHI-20 VERSUS MR. SHIV KUMAR AGARWAL - 2022 (8) TMI 268 - DELHI HIGH COURT - Dated.- July 28, 2022 DCIT CENTRAL CIRCLE - 15, NEW DELHI VERSUS SUDHA NAGAR - 2022 (8) TMI 381 - ITAT DELHI - Dated.- August 5, 2022 AGM PROPERTIES P. LTD. VERSUS ACIT, CENTRAL CIRCLE 14, NEW DELHI. - 2022 (8) TMI 255 - ITAT DELHI - Dated.- July 19, 2022 UNIFIED INFRASTRUCTURE PVT. LTD. VERSUS ACIT CENTRAL CIRCLE - KARNAL HARYANA - 2022 (5) TMI 1156 - ITAT DELHI - Dated.- May 23, 2022 SANJAY JAIN C/O. RAJIV SAXENA AND CO. (ADVOCATE SOLICITORS) VERSUS DCIT CENTRAL CIRCLE-1 NEW DELHI - 2022 (5) TMI 1101 - ITAT DELHI - Dated.- May 20, 2022 9. Thus, in view of the facts prevailing in assessee s case and considering the various judicial pronouncements in this regard, the addition made by the AO which is not based on any incriminating mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this legal position. It is clear from the assessment orders as well as submissions of the appellant that search and seizure action 132(1) of the Act was undertaken by the Department in the case of appellant as on 08.07.2015 and on that date, assessment of A.Y. 2010-11 was completed assessments as the time period to issue notices u/s 143(2) for aforesaid years had already expired. The assessments/reassessments were not abated in this assessment year upon issue of notice u/s 153A. Thus this assessment was completed assessment in all respects. 7. The ld. CIT-DR could not show us, from the first appellate order, which piece of evidence which was not before the AO was considered by the ld.CIT(A) while granting relief to the assessee in violation of Rule 46A of the IT Rules. Therefore, ground No.3 of the Revenue being devoid of merits is being dismissed. 8. So far as the challenge of the Revenue to the findings of the ld.CIT(A), wherein he granted relief to the assessee by following the judgement of the jurisdictional High Court of Delhi in the case of Kabul Chawla (supra) is concerned, undisputedly, the assessee filed return of income for AY 2010-11 on 30.09.2010 and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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