TMI Blog2022 (4) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - CALCUTTA HIGH COURT] we are of the view that additions are not sustainable. We allow these grounds of appeal and delete the additions because they are added without any seized material available pertaining to these assessment years. Decided in favour of assessee. - I.T.(SS)A. Nos. 26 & 27/Kol/2021 - - - Dated:- 18-4-2022 - Shri Rajpal Yadav, Vice-President(KZ) And Shri Rajesh Kumar, Accountant Member For the Appellant Shri A.K. Tibrewal, FCA Shri Amit Agrawal, Advocate For the Respondent Smt. Sucheta Chattopadhyay Roy, CITDR ORDER Per Shri Rajpal Yadav, Vice-President: The present two appeals are directed at the instance of assessee against the separate orders of Ld. CIT(A) dated 17.09.2021 passed in AYs. 2013-14 2014-15 respectively. 2. The assessee has taken 11 grounds of appeal in both the assessment years. However, the ld. Counsel for the assessee at the very outset submitted that solitary substantial ground of appeal involving in both the years is, whether additions can be made in the assessments passed u/s 153A without any incriminating material found during the course of search relating to these two assessment years. 3. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered 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 the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon'ble Delhi High Court after detailed analysis has summarized the following legal position: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench's order. It reads as under: 15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly, Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 153A of the Act. 10. Hon'ble Gujrat High Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): [A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A which is different from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incriminating material found during the course of search' which are not there in section 153A? [C] Whether the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Found-Nil Seized-Nil In assessment proceedings, the assessee was asked to explain the ownership source of cash/jewellery/other valuable found during the course of search and seizure operation. In reply, the assessee submitted that out of the total cash found Rs. 24,572/- belongs to the assessee which was withdrawn from bank for office expenses. 4.B. Bank Accounts: In course of search and seizure proceedings, in different premises as well as in different survey spots, different bank accounts were found and inventories. In course of assessment proceedings, different assessees were asked in this regard and reply of which is available in the assessment record of respective assessees. In the case of M/s GPT Sons Pvt. Ltd., assessee has submitted that the details of bank accounts inventories during the search survey operation are disclosed in the regular books of accounts of respective persons of the GPT Group of cases in their assessment. 4.C. Books of Accounts and other incriminating documents: During the course of Search Seizure operation, several documents were seized pertaining to the various concerns of the Group. These seized docum ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
