TMI Blog2023 (5) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or investigation was carried in case of investing companies without referring to incriminating document found from the premises of the assessee in this regard which would have made basis for the addition in the assessment. Accordingly, we hold that there cannot be any addition of the regular items which were disclosed by the assessee in the regular books of accounts. - IT (SS) A No. 11/AHD/2021 - - - Dated:- 17-5-2023 - SHRI WASEEM AHMED , ACCOUNTANT MEMBER And SHRI SIDDHARTHA NAUTIYAL , JUDICIAL MEMBER For the Revenue : Shri A. P. Singh , CIT D. R. For the Assessee : Shri Biren Shah , A. R. ORDER PER WASEEM AHMED ACCOUNTANT MEMBER : The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-5, Ahmedabad (in short Ld. CIT(A) ) dated 18.09.2020 arising in the matter of assessment order passed under s. 143(3) r.w.s. 153A(1)(b) of the Income Tax Act, 1961 (here-in -after referred to as the Act ) relevant to the Assessment Year 2008-2009. 2. The only effective issue raised by the Revenue is that the learned CIT(A) erred in deleting the addition of Rs. 15 crores ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, the earlier assessment would have to be reiterated. 4.7 The above decisions have categorically dealt with both the arguments as were raised by AO in assessment order and binding decisions need to be followed. The AO in assessment order has not referred to any incriminating material found during the course of search which can justify addition u/s 68 of the Act. The AO has not brought anything on record which can prove that during the course of search any cash trail was found from the premises of appellant which can prove that appellant has made cash payment against cheques received by it from both the concerns. On the contrary, AO himself has observed that seizure of incriminating material is not precondition for invoking above provisions of the Act which also support the contention of appellant that no incriminating material was found during the course of search which can justify addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act for the assessment year 2007-08 was framed on 28.03.2014. Certain additions in terms of business income were made in such assessment. The Tribunal by the impugned judgment set aside the assessment on the ground that there was no incriminating material found during the search which would permit the Assessing Officer to make the additions. The Tribunal noted that the return filed by the assessee in the ordinary course was accepted without a scrutiny and the time limit for scrutiny assessment was over. Essentially therefore what the Assessing Officer had done was to realign the income from capital gain to business income. Since this was without the aid of any material unearthed during the search, the Tribunal reversed the assessment order as confirmed by the Commissioner of Income Tax (Appeals). 3. As per the settled law, the approach before the Tribunal cannot be faulted particularly when the Revenue is unable to dispute the factual findings of the Tribunal. We notice that there are additional questions raised by the Revenue which pertained to the actual additions. However, when we hold the main issue against the Revenue, it is not necessary to enter into the subsidiary q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of share application money and premium thereon for Rs. 15 Crores. On appeal by the assessee the learned CIT (A) deleted the addition made by the AO on technical ground by holding that there was no material of incriminating nature found in the course of the search with reference to year under consideration. Therefore, the year under consideration being unabated/completed assessment year, no addition should be made in absence of incriminating material. The learned DR before us vehemently argued that there is no provision under section 153A of the Act which restricts the assessment or reassessment in case of search to the extent of incriminating material only. 11. In this regard, we find that it has been settled by various Hon ble Courts including Hon ble Jurisdictional High Court that the completed assessment cannot be disturbed in the absence of any incriminating material/ documents found in the course of the search whereas the assessment/ reassessment can be made with respect to abated assessment years. The word 'assess' in Section 153A/153C of the Act is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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