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TMI Blog2015 (9) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri Shankarlal Meena, CIT.D.R. ORDER PER PRAMOD KUMAR, A. M.: By way of this appeal, the assessee appellant has challenged correctness of learned CIT(A) s order dated 29th November, 2013, in the matter of assessment under section 143(3) r.w.s. 153A(1)(b) of the Income Tax Act, 1961 ( the Act hereinafter) for the Assessment Year 2006-07. 2. When this appeal was called out for hearing, learned counsel for the assessee submitted that, with the benefit of finding judicial precedents non available, this appeal can be disposed of on the short legal ground that when no incriminating material is found during search operations, assessment framed earlier cannot be disturbed in the course of proceedings under section 153A. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee did seek cross examination of these persons but as these were stated to have gone out of station, the cross examination could not be offered of the assessee. There was no incriminating material found during the search which was used in the assessment proceeding for the making the additions in impugned assessment. Aggrieved by the assessment so framed, assessee carried the matter in appeal before the CIT(A) who confirmed the action of the Assessing Officer, on the jurisdictional issue, by observing as under: 4.4 In the instant case, it is not denied that a search has taken place. In view of the above, it is clear that the notice issued u/s 153A of the IT Act, 1961, was valid and assessment made thereafter cannot be held to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earched which belong to the other person, before the AO of such other person can invoke the provisions of section 153C. Most of the other cases relied by the AR of the appellant are also related to section 153C and not 153A. Only a few cases have been cited in respect of cases where search was conducted. The decision in these cases is that of the ITAT benches. Such cases cannot be relied upon and are not good law in view of the decision of Hon ble Delhi High Court in the case of CIT vs. Anil Kumar Bhatia dated 7th August, 2012 (supra). 4. The assessee is not satisfied and is in further appeal before us. 5. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating material was found, was apparently left open. However, we find that there are sufficient in direct hints given by the Hon'ble Delhi High Court in the case of Anil Kumar Bhatia (supra) about not making of any addition in respect of an assessment year for which the assessment is already completed unless some incriminating material is found during the course of search. This can be seen from the following observations of the Hon'ble High Court :- 20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years. However, the scope of such determination of total income is different in respect of the years for which the assessments are pending vis-vis the years for which assessments are non-pending. In respect to the assessment years for which the original assessments have already been completed on the date of search, the total income shall be determined by restricting additions only to those which flow from incriminating material found during the course of search. If no incriminating material is found in respect of such completed assessment, then the total income in the proceedings u/s 153A shall be computed by considering the originally determined income. If some incriminating material is found in, respect of such assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar u/s 153A, the assessment for which is not pending on the date of search, unless any incriminating material is found in the course of search. 7. We see no reasons to take any other view of the matter than the view so taken by the coordinate bench. Respectfully following the same, and having noted that the additions of ₹ 11,05,51,000/- is not based on any incriminating material found during search operations on the assessee, we delete the said addition. 8. We may add that the impugned addition was also assailed before us on merits, inter alia, on the ground that it is unsustainable in law in the light of Hon ble Jurisdictional High Court s judgment in the case of DCIT vs. Prarthana Constructions Pvt. Ltd. (ITA No. 79 of 2000; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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