TMI Blog2023 (3) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to by ld. AO which has a direct nexus with the assessee nor is there any material which could throw any light that the assessee has parked its unaccounted funds with the Siddha Group as loans and advances/booking money of the Siddha Projects the proceedings carried out u/s 153A of the Act deserves to be quashed since for AY 2014-15 AY 2015-16 the original returns were duly submitted on 11.06.2014 21.08.2015 and the time limit for issuance of notice u/s 143(2) of the Act stood expired and no proceedings u/s 143(3)/147 of the Act were pending on the date of search, therefore, both the assessment years were completed assessment years which cannot be abated and for such completed assessment year, no additions can be made unless until supported by incriminating material found during the course of search belonging/pertaining to the assessee - Decided against revenue. - I.T.(S.S.)A. Nos.: 35 & 36/KOL/2022 - - - Dated:- 20-2-2023 - DR. MANISH BORAD, ACCOUNTANT MEMBER AND SONJOY SARMA, JUDICIAL MEMBER Sh. G.H. Sema, CIT (DR), appeared on behalf of the Revenue. Sh. Manish Tiwari, FCA, appeared on behalf of the Assessee. ORDER Per Manish Borad, Accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 153A of the Act was issued and in response, the assessee filed the return for the year under appeal i.e. AY 2014-15 on 27.11.2018 declaring the same income i.e. 2,64,100/- as declared in the original return of income. This was followed by serving of notices u/s 143(2) 142(1) of the Act. During the course of search, documents bearing ID-PB/1, PB/2 PB/3 were found and seized which contain the details of different project of details Group. Ld. AO observed that the assessee is a partner in many projects of Siddha Group. In the assessment order ld. AO referred to various loan transactions taken by Siddha Infradev LLP and other concerns of Siddha Group and has also referred to booking money received by Siddha Group. Ld. AO also observed that though the assessee is one of the partners in many Siddha Projects but in his books, no amounts were shown as investment. 5. It was stated by the assessee before ld. AO that unsecured loan/booking money was given through companies which have separate legal identity and the unsecured loan/booking money invested in Siddha Group are duly recorded in the books of accounts of respective companies and their sources were duly explained. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year under consideration. Penalty proceeding u/s 271(1)(c) of the I T Act initiated for concealment of income. 6. Accordingly, against the returned of Rs. 2,64,100/-, income for AY 2014-15 assessed at Rs. 7,32,64,100/- and for AY 2015-16 against the returned income of Rs. 2,17,875/- income assessed at Rs. 13,62,81,160/-. 7. Aggrieved, the assessee preferred appeal before ld. CIT(A). During the course of appellate proceedings, the assessee filed complete details stating that no incriminating material was found indicating any undisclosed income in the name of the assessee and all the other documents which ld. AO has referred in the assessment order only provides the details of unsecured loan and booking money taken by Siddha Group in companies for various projects. Ld. CIT(A) was satisfied with this contention and came to a conclusion that all the alleged loans taken by Siddha Group are duly disclosed in the regular books of accounts of the related companies which are separate legal entities and are assessed to tax and the fate of such unsecured loans/booking money can be considered only in the hands of the respective companies receiving such investments/booking money. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015-16. The last date for issue of notice u/s 143(2) was September 2016. No proceedings u/s 143(3) or 147 of the Income Tax Act was pending on the date of search being 12.09.2017. Therefore, since no proceedings were pending and the assessment was already completed this was an unabated assessment. In view of judicial pronouncements relied upon in the written submissions filed in paper book no addition or disallowance can be mad u/s 153A other than based upon any incriminating materials found during the search and since the addition is purely on suspicion surmises without reference to any incriminating materials, the addition made by AO is bad in law. Points on merits 1) The assessee produced documents to substantiate that loan I booking advance to Siddha Group was granted by independent entities from their own funds reflected in their Balance Sheets and no part of such loan or booking advance was funded by the assessee or any entity acting on behalf of the assessee. Thus, the allegation of AO in the assessment order that assessee had advanced loans, booking advances through his undisclosed sources was merely based on suspicion, surmises and conjecture, and additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are verifiable and hence section 69 cannot be invoked in the hands of assessee. The additions based on surmises and conjectures must be deleted. 10. We have heard rival contentions and perused the records placed before us. The Revenue is aggrieved with the finding of ld. CIT(A) deleting the additions made by ld. AO u/s 69 of the Act towards undisclosed investment in various group companies of Siddha Group. We observe that the assessee is a practicing-chartered accountant and is partner of M/s. P. Beria Associate. He was subjected to search in the course of proceedings carried out u/s 132 of the Act dated 12.09.2017 in GPT Group of cases. During the course of search, certain documents were found in the possession of the assessee which contained the details of the unsecured loan taken by Siddha Group of companies which mainly included Siddha Real Estate Developer, Siddha Infradev LLP, Siddha Happyville LLP, Siddha Waterfront LLP, SREDPL-Lakeville etc. In all these details name of the assessee is not appearing and only the transactions of unsecured loan and booking money received by Siddha Group are appearing. Ld. AO mainly harped upon the statement given by the assessee duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being passed by the AO, u/s 153A of the Income Tax Act, 1961, in the absence of any incriminating document found in the course of Search and Seizure proceedings conducted u/s 132 of the Income Tax Act, 1961. The brief facts of this case are that the appellant, a practising Chartered Accountant, had filed his return of income for the impugned assessment year on 11.06.2014 as per the order of assessment dated 30.12.2019. Thereafter, a search and seizure operation was conducted on 12-09-2017 under section 132 of the I.T Act, 1961 in the GPT group of cases, the appellant along with his family members was also covered in the same search, on the same day, by execution of search warrant, details being summarised as under: Sl.No Address of Promise Date of operation Covered Under Details of seized/ impounded material 1. Rameshwar Apartment Flat- No-3D, 19A, Sarat Bose Road, Kolkata- 700020 12-09-2017 132 PB/1, PB/2, PB/3 2. Unit No-202, 2nd floor, 22 Sarat Bose Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already been incorporated in the regular books of account for which admittedly the returns had been filed. Once again the AO has not controverted these statements nor brought anything on record to suggest that the averments of the appellant in this regard were incorrect and that there indeed was some incriminating material found during the search - material that had not already been duly disclosed by the appellant in his books of account. In fact the impugned transactions were duly recorded in the books of the transacting entities also and nothing extra was fund during search. Proceeding further, in this matter, it is also recorded by the AO that in the course of assessment proceedings, he received some information from the Assessing Officer of Siddha Group that large amount of unsecured loan and Booking advance money was received by the SIDDHA GROUP from various companies details of which have been mentioned in page nos 3 to 5 of the Assessment order, however that the that the information received was already part of and contained in the seized documents PB-1 to PB-3 as already explained in the above paragraph. In paragraph 7.1 of his order, the AO has further record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court. Some of these decisions from the jurisdictional High Court are: 1. CIT Vs. Veerprabhu Marketing Ltd. [2016] 73 taxmann.com 149 (Calcutta), the Hon ble Calcutta High Court expressed the following views: - We are in agreement with the views of the Karnataka High Court that incriminating material is a pre pre-requisite requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the asses assessing sing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances. 2. Calcutta High Court in the case of PCIT VS. Salasar Stock Broking Ltd. (ITAT No. 264 of 2016 dated 24.08.2016 expressed its decision as under:- In this case, the Honourable High Court observed that the Ld. ITAT, Kolkata was of the opinion that the assessing officer had no jurisdiction u/s 153A of the I.T. Act to reopen the concluded cases when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification application will not abate? 3. Whetheron the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is correct in law lor the fact that the decision of Jharkhand High Court (290ITR 114) has not been properly interpreted as the same does not deal with a situation where assessment are made u/s. 143(1) of the I. T. Act and there is no proposition laid down that disallowance which required to be made if the return was selected for regular assessment u/s. 143(3) or u/s. 147 of the I.T. Act could not be made u/s. 153A of the I. T. Act? While disposing appeal the Hon ble High Court held: We are in agreement with the views expressed by the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments which were seized did not establish any co-relation, document-wise, with these four Assessment Years. Since this requirement under Section 153C of the Act is essential for assessment under that provision, it becomes a jurisdictional fact. We find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act. Para 9 of the order of the ITAT reveals that the ITAT had scanned through the Satisfaction Note and the material which was disclosed therein was culled out and it showed that the same belongs to Assessment Year 2004-05 or thereafter. After taking note of the material in para 9 of the order, the position that emerges therefrom is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred. The Hon'ble Mumbai ITAT in the case of All Cargo Global Logistics Ltd. vs. DCIT [2012] 23 taxmann.com 103 (Mum) (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings of the search and any other material existing or brought on the record of the AO, (b) in respect of non-abated assessments, the assessment will be made on the basis of books of account or other documents not produced in the course of original assessment but found in the course of search, and undisclosed income or undisclosed property discovered in the course of search. Further in the said judgment, the words incriminating material was defined as follows: (a) In assessments that are abated, the AO retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A for which assessments shall be made for each of the six assessment years separately; (b) In other cases, in addition to the income that has already been assessed, the assessment u/s 153A will be made on the basis of incriminating material, which in the context of relevant provisions means- (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search 5. In the case of Kabul Chawla (2016) 380 ITR 573, Hon'ble Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 153A only on the basis of some incriminating material unearthed 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 made known in the course of original assessment. 38. The present appeals concern AYs 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. Conclusion 6. Pr. CIT v. Meeta Gutgutia Prop. Ferns 'N' Petals [2017] 82 taxmann.com 287/248 Taxman 384/395 ITR 526 (Delhi), wherein the Hon'ble Delhi High Court has held as under: 56. Section 153A of the Act is titled Assessment in case of search or requisition . It is connected to section 132 which deals with 'search and seizure'. Both these provisions, therefore, have to be read together. Section 153A is indeed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) revealed that there was a factual finding that no incriminating evidence related to share capital issued was found during the course of search as was manifest from the order of the Assessing Officer. Consequently, it was held that the Assessing Officer was not justified in invoking section 68 for the purposes of making additions on account of share capital. There was nothing to show that the factual determination was perverse.(AY. 2002- 2003). The Supreme Court has dismissed the special leave petition filed by the Department against this judgment [2016] 380 ITR 64(St.) In the present facts and circumstances, therefore I find that the factual matrix of the instant appeal necessitates the applicability of the afore-discussed proposition of law in this case. It is clear from the above discussions that the only addition that could have been made in the instant case has to emanate from incriminating material found during search. The only matter that needs to be examined is whether there was any incriminating material at all that necessitated and/or led to the additions challenged in this appeal. The above discussion has clearly brought to the fore the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o treat the unsecured loan and Booking Advance money received by various concerns of Siddha Group as undisclosed Investment of the appellant without bringing on record any credible or material evidence on record. Facts relating to this addition, as narrated by the appellant are: In course of assessment proceedings the AO received an information from another AO who held jurisdiction over cases of SIDDHA group informing that large amount of unsecured loan booking money was received by SIDDHA group details of which are embossed at pages 3 to 5 of the assessment order. The AO observed that tie unsecured loans were initially advanced to SIDDHA group through appellant s various concern as unsecured loans. These loans were subsequently refunded and again the money was given to other concerns of SIDDHA group as booking advance by appellant s concerns. Based on this factual finding the AO issued a Show cause notice dated 14.12.2019 to the appellant seeking appellant s explanation as to why these unsecured loans and booking advances given by the appellant s concern to SIDDHA group companies should not treated as appellant s undisclosed investments. In response to the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of AO has any truth behind it. It is a settled law that suspicion how so ever strong it may be cannot partake the character of evidence thus the action of AO is bad in law. This is neither probable nor possible. It is a fact that the unsecured loans granted by the companies were refunded to a large extent by SIDDHA Group and then the Money s were given to SIDDHA group as Booking Advance. But that does not prove that the appellant has infused his unaccounted money into SIDDHA group through these companies. It is also pointed out that all the investments by way of unsecured loans/booking advances have been treated as genuine both in the hands of all the entities. The AO did not even make any enquiries from the AO s of the respective companies to verify the investments. The entire addition is based on allegations which are far from truth and hence do not have legs to stand upon. It is also pointed out that the AO did not share the information received by him from the AO of the SIDDHA Group for giving any rebuttal by the appellant. The AO has failed to bring any evidence on record to prove that the appellant had any earnings outside his books of accounts in cash which has been br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot doubted that the said amounts were advanced not by the appellant himself, but by the concerns of the appellant. He has not commented upon whether the fact of these advances/loans having come from the various concerns from which they had admittedly come, had been accepted in the assessment of the recipient concerns of the Siddha Group or In the cases of the concerns which had admittedly advanced these amounts. As a matter of fact during the scrutiny assessments of these concerns that had made these loans/advances, these loans/advances have been accepted. Assessment orders of these concerns have been filed during appeal. The only reason given by the AO for adding these advances/loans in the hands of the appellant is that the appellant was a partner in several projects of Siddha group and this would necessitate some investment being made by the appellant into this group. Therefore, as per the AO, it was at the behest of the appellant that these investments were made by concerns controlled by him or his family members, as a means of making investment in Siddha Group in the form, perhaps, of his capital share since he was a partner in Siddha Group. There are various defects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, it has been recorded that the appellant had explained that the said advances of moneys had been duly recorded in the books of account of the various concerns involved in the transaction and the sources had duly been explained. The appellant has further submitted that this money was later received back from Siddha Group by these concerns, and later, once again reinvested in other entities of the Siddha Group. In the subsequent paragraph, 8.1, of his order the AO has confirmed the veracity of these facts having himself examined the seized material in his possession. After accepting these facts, it is not clear as to how the AO can go ahead with assessing these advances of money in the hands of the present appellant. The procedures followed during any assessment or related proceedings clearly stipulate that the person who is furthering or asserting a point of fact has to adduce concrete evidence and/or cogent arguments to establish his propositions. The appellant has discharged this onus sufficiently before the AO. The AO, in turn, has accepted the fact that the said advances of money to Siddha Group were made by concerns controlled by him. He has explained that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conjectures. Ld. AO ought to have carried out the exercise in the case of respective companies who gave loan/ booking money to the Siddha Group and the test laid down u/s 68/69 of the Act for the said unsecured loan/ booking money or the investment as the case may be ought to have been carried out in the respective hands of such concerns/entities carrying out the proceedings u/s 153A/153C of the Act. However, by no canon such exercise could have been made in the hands of the assessee who is a practicing-chartered accountant and the partner of a firm duly registered with the Institute of Chartered Accountants of India. The only evidence which ld. AO had was the statement given by the assessee during the course of search which has been retracted within three days himself and therefore, there remains no sanctity to refer/rely on such a statement which has been retracted within three days of the date of search. Even otherwise on legal grounds also since no incriminating material has been referred to by ld. AO which has a direct nexus with the assessee nor is there any material which could throw any light that the assessee has parked its unaccounted funds with the Siddha Group as loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant was confronted with them in the course of search proceedings. (iii) AO has alleged that during the Search Seizure operations, assessee accepted the existence of a/c but stated it was in the name of M/s Masonic Ltd., in which his NRI son, Mr. Amitabh Himatsingka held 600 class-B non- voting equity shares. In the same statement, the Assessee had clarified and subsequently asserted, through filing of affidavits, that he was neither a director nor a shareholder in the said companies. (iv) As no incriminating material or documents whatsoever was found during the course of search under section 132 of the Act and since the time limit for issuing notice u/s 143(2) of the Act for A.Y. 2006-07 stood expired as on the date of search i.e., 22/09/2011, the said assessment falls under the category of completed assessment and additions could be made in such completed assessments only if they are supported with any incriminating material found during the course of search. Therefore, the Assessing Officer has no jurisdiction whatsoever to frame assessment under section 153A/143(3) of the Act with reference to the issue for which no incriminating evidence or documents was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act. b) Similar view was taken by the Hon'ble Calcutta High Court in the case of Veerprabhu Marketing Ltd, ITA No. 661/2008 dated 04108/2016. In this case the question of law was framed as follows: 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is justified in not holding that all assessments were made under section 143(1) of the I. T. Act; therefore, disallowance as per law were not earlier made. As per Section 153(c) of the I. T. Act assessment is to be made afresh and Income to be assessed or reassessed. The meaning of reassessment is that there is no need to resort to Section 147 of the I. T. Act and to consider the disallowance in the assessment to be made under section 153 of the I.T. Act? 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is correct in misinterpreting the CBDT's Circular NO.7 as the same applies to assessments made u/s.143(3), 144 or 147 of the I. T. Act where appeals or rectification application will not abate? 2. Whether on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore or less an identical view was taken by this Bench in ITA 66112008, [CIT vs. Veerprabhu Marketing Ltd] wherein the following views were expressed We are in agreement with the views expressed by the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section153C read with section 153A. In the case before us, the assessing. officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances In that view of the matter, we are unable to admit the appeal. The appeal is, therefore, dismissed. d) In the case of PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA VERSUS M/S. RASHMI INFRASTRUCTURE PVT. LTD., 2020 (2) TMI 1463 the Hon'ble Calcutta High Court took the same view and held: ''The question is whether the assessee had unexplained cash credit in their books which could be charged to income ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in case referred above and the ratio decided by the Hon'ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd. (Supra) in the light of CBDT's decision of not filing SLP in this 'case in the Supreme Court and keeping in view the Apex Court's decision to dismiss SLP on the similar issue in the case of Pr CIT vs Kurele Paper Mills Pvt. Ltd: SLP (C) No. 34554 of 2015 dt. 07.12.2015, I am of this view that in order to maintain judicial continuity on this issue and respectfully following the ratio decided by the Hon'ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (Supra), assessee's appeal on ground no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit. The tribunal is the final fact finding authority. A plausible adjudication on facts has been made. We cannot reopen the facts any more in this jurisdiction. No questions of law far less any substantial question of law is involved. For those reasons, the appeal (ITAT NO.99 of 2019) and the connected application (GA No.1211 of 2019) are dismissed. e) In the case of M/s Shree Sai Builders, 43, R.R. Archade, Zone-II, M.P. Nag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l found during the course of search. Therefore, in the given facts and circumstances of the case and respectfully following the decision of the co-ordinate bench referred above, we direct the Ld. A.O to delete the disallowance of Rs.2,24,326/- and accordingly allow Ground No.1 and consequentially Ground No. 2 of the assessee s appeal for 2008-09 raised in IT(SS)No.245/Ind/2017. f) In the case of Sreedeb Commodities Pvt. Ltd., 158, Lenin Sarani, Kolkata 700013 -vs- DCIT, Central Circle-2(1), Kolkata in I.T.(SS).A. Nos. 15/Kol/2022 for Assessment Year : 2007-08 Income Tax Appellate Tribunal A Bench, Kolkata by its order dated 26.07.2022 held as follows : 8. We have duly considered rival contentions and gone through the record carefully. Before adverting to the facts and alleged seized material considered by the ld.AO for making the addition in the hands of the present assessees, we deem it appropriate to bear in mind the position of law propounded in various authoritative judgments expounding scope of section 153A of the Act. We are of the view that in this regard, there were large numbers of decisions. First, we refer to the decision of Hon'ble Delhi High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought 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 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. ITAT Delhi Bench in the case of DIT Vs. Smt. Shivali Mahajan and others, rendered in ITA No.5585/Del/2015 has considered this aspect in its decision. Thereafter, the Tribunal has specifically held that serial no.(iv) of the above proposition, the Hon'ble Delhi High Court has specifically held that assessment under section 153 A of the Act has to be specifically made on the basis of seized material. ITAT Delhi Bench was considering an aspect whether the evidence in the shape of books of accounts, money, bullion, jewellery found during the course of search relates to other person than the searched person, can that be considered while making assessment under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case anything incriminating has been found when the premises of the Assessee was searched. The answer was in the negative. The entire case against the Assessee was based on what was found during the search of the premises of the AEZ Group. It is thus apparent on the face of it, that the notice to the Assessee under Section 153A of the Act was misconceived since the so- called incriminating material was not found during the search of the Assessee's premises. The Revenue could have proceeded against the Assessee on the basis of the documents discovered under any other provision of law, but certainly, not wider Section 153A. This goes to the root of the matter. 9. Hon'ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153 A of the Act. 10. Hon'ble Gujarat High Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. CIT vs. Kabul Chawla [2015] 61 taxmann.com 412 (Delhi) 2. PCIT vs.- Kurele Paper Mills (P) Ltd. [2017] 81 taxmann.com 82 (Delhi) 3. PCIT vs.- Rashmi Infrastructure Pvt. Ltd. ITAT 99 of 2019, GA No. 1211 of 2019 (Calcutta HC) 4. CIT vs.- Veerprabhu Marketing Ltd. [2016] 73 taxmann.com 149 (Calcutta) 5. PCIT vs.- Salasar Stock Broking Ltd. ITAT No. 264 of 2016, GA No. 1929 of 2016 (Calcutta HC) 6. M/s. Mani Square Ltd. vs.- ACIT [IT(SS)A Nos. 58/KOL/2019 others 7. ACIT vs.- Majestic Commercial (P) Ltd. [2020] 116 taxmann.com 412 (Kolkata Trib.) 8. PCIT vs.- Anand Kumar Jain Others [ITA 23/2021 others (Delhi High Court) 9. DCIT vs.- Bhavya Merchandise (P) Ltd. [2020] 121 taxmann.com 112 (Kolkata Trib.) 10. Sarva Priya Holdings Pvt. Ltd. vs.- DCIT [IT(SS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/2015, as bad in law, and all the additions made therein stands deleted, renders the remaining grounds infructuous. In view of our finding as above, we do not deem it necessary to decide other grounds of appeal. 12. In the result, the appeal is partly allowed. 13. As far as the reliance placed by ld. D/R on the judgment of Hon'ble Supreme Court of India in the case of Param Dairy Ltd. (supra) is concerned we find that it is only with regard to the notice to be issued in the SLP filed by the Revenue against the order of the Hon'ble High Court and there is no discussion on the issue regarding carrying out the assessment proceedings u/s 153A of the Act in absence of incriminating material found during the course of search and therefore, it will not support the contention of ld. D/R. 14. We, therefore, under the given facts and circumstances of the case and respectfully following the decisions referred herein above by ld. CIT(A) as well as the decision of this Tribunal in the case of Aditya Himatsingka (supra) are inclined to hold that ld. CIT(A) has rightly appreciated the facts that the addition made by ld. AO u/s 69 of the Act are merely based on surmises and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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