TMI Blog2023 (5) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... t in absence of any incriminating material will not permit making of addition by the AO and that the AO has no jurisdiction to reopen the completed assessment. Decided in favour of assessee. - HONOURABLE MR. JUSTICE N.V.ANJARIA AND HONOURABLE MR. JUSTICE DEVAN M. DESAI MR.VARUN K.PATEL(3802) for the Appellant(s) No. 1 NONE for the Opponent(s) No. 1 ORAL ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. Varun Patel for the appellant department. 2. The present Tax Appeal under section 260A of the Income Tax Act, 1961 arises out of order dated 8.6.2022 of the Income Tax Appellate Tribunal, Ahmedabad in Income Tax (SS) Appeal No. 451 of 2019 in respect of the Assessment Year 2011-2012. 2.1 The Revenue has proposed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of Commissioner of Income Tax (Appeals). 4. While learned advocate for the appellant took the court through the order impugned in the appeal to make various submissions to assail the same and to submit that the aforesaid substantial questions of law arise, in course of the hearing, however, learned advocate fairly conceded that the issue represented in the substantial questions of law is answered by the supreme court in Principal Commissioner of Income Tax, Central-3 vs. Abhisar Buildwell P. Ltd. being Civil Appeal No. 6580 of 2021 and other group of appeals decided on 24th April, 2023. They were the group of appeals filed by the Revenue as well as the assessee respectively. The issue involved in the said appeals before the supreme cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no addition can be made in respect of completed/ unabated assessment in absence of any incriminating material. 4.3 The supreme court observed in Abhisar Buildwell P. Ltd. (supra) thus, .The lead judgment is by the Delhi High Court in the case of Kabul Chawla (supra), which has been subsequently followed and approved by the other High Courts, referred to hereinabove. One another lead judgment on the issue is the decision of the Gujarat High Court in the case of Saumya Construction (supra), which has been followed by the Gujarat High Court in the subsequent decisions, referred to hereinabove. Only the Allahabad High Court in the case of Pr. Commissioner of Income Tax v. Mehndipur Balaji, 2022 SCC Online All 444 : (2022) 447 ITR 517 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 completed 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 proceedings. vi. Insofar as pending assessments are conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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