TMI Blog2022 (11) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... or seized during the course of search nor there was any admission by the Assessee. This Court in Shiv Kumar Agarwal [ 2022 (8) TMI 268 - DELHI HIGH COURT] has held where assessment of the respondent had attained finality prior to the date of search and no incriminating material of document has been found at the time of search, no addition could be made u/s 153A as the case of the respondent was of non-abated assessment. Though the judgment in Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] has been challenged by Revenue in connected matters and is pending before the Hon ble Supreme Court, yet there is no stay of the said judgment till date. Consequently, in view of the judgment passed by the Hon ble Supreme Court in Kunhayammed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied out in the case of the Assessee. During the assessment proceedings it was observed that as per the balance sheet of the Assessee, there was a substantial increase in the share capital and induction of the share premium for the AY under consideration. The Assessee was directed to furnish necessary details in support of the identity of the shareholders. 2.3. The Assessee was issued with an assessment order dated 31st March, 2015 by the Assessing Officer ( AO ) resulting in an addition of Rs. 8,00,00,000/- under Section 68 of the Act. The AO noted that the details submitted by the Assessee was not found to be satisfactory. 2.4. Aggrieved by the assessment order dated 31st March, 2015, the Assessee preferred an appeal before the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry operator Sh. Tarun Goel, these were used only as a starting point for further investigations by the AO and the same lead to be impugned addition. He states that the ITAT failed to appreciate that the scope and meaning of incriminating evidence cannot be restricted to just documentary evidence or admission by the Assessee itself. 4. He further states that the addition under Section 68 was made by the AO as the Assessee has failed to establish the identity, credit worthiness and genuineness of the share capital and premium received by the Assessee. 5. Learned counsel for the respondent relies upon the judgment of this Court in PCIT Vs. Meeta Gutgutia, (2017) 82 taxmann.com 287 (Del) which followed the decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the ld. CIT(A) that the assessment was completed before the date of search and the addition was not based on any incriminating material found during the course of search. The ld. CIT(A) specifically asked the remand report of the AO on the aforesaid contention of the Assessee. In response, the AO in his remand report dated 16.03.2016 admitted that though no documents were found/seized nor there was any admission by the Assessee during the course of search but the addition was made as the Assessee failed to establish the identity, creditworthiness and genuineness of the share capital/premium. From the above observation of the AO, it is crystal clear that no incriminating material was found during the course of search relating to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material 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 complete 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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