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TMI Blog2016 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Gupta, Adv. For the Petitioner : Sh. Sunil Chander Sharma, CIT(DR) ORDER Per H. S. Sidhu : JM These are the Cross Appeals by the Assessee and Revenue emanating from the common order of the Ld. CIT(A) dated 05.7.2013 relevant to ITA NOS. 5688-5691 6326-6329/Del/2013 2 assessment year 2006-07 to 2009-10. Since the issues involved in these cross appeals are common and identical, hence, these appeals were heard together and are being disposed by this common order for the sake of convenience, by dealing with Assessee s Appeal No. 5688/Del/2013 (AY 2006-07) and Revenue s Appeal No. 6326/Del/2013 (AY 2006-07). 2. The common grounds raised in all the 4 Assessee s appeals read as under:- 1. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in upholding the validity of the order passed by the AO u/s. 153A on 29.10.2002. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in holding that gain/ loss on account of share transaction where the holding period is less than 30 days constitutes business income / loss, as against the capital gain / loss claimed by the appellant. 3. The ld. CIT(A) further erred in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Ld. CIT(A), who vide impugned order dated 05.7.2013 has partly allowed the appeal of the asseseee. 6. Aggrieved with the order of the Ld. CIT(A), the Assessee is in appeal before the Tribunal. 7. At the threshold, Ld. Counsel of the assessee stated that the issue raised vide ground no. 1 relating to upholding the validity of the order of assessment passed u/s. 153A on 29.10.2012, is squarely covered in favor of the assessee by the decision dated 28.8.2015 of the Hon ble Delhi High Court passed in the case CIT(Central)-III vs. Kabul Chawla in ITA No. 707, 709, 713/Del/2014 wherein the Hon ble High Court has held that if the additions are made, but not based on any incriminating material found during search operation, then these additions are not sustainable in the eyes of law. He further stated that the additions have no relation with any incriminating material found and undisclosed income or property discovered in the course of search and as such are bad in law being beyond the scope of jurisdiction u/s. 153A of the I.T. Act. In order to support his case, Ld. Counsel of the assessee draw our attention towards the assessment order pages 1, 2 7 and the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT vs. Kabul Chawla (Supra) the assessment was completed u/s. 143(3) of the I.T. Act and not under section 143(1) of the I.T. Act, because on the date of search the said assessment has already been stood completed. 8. We have heard both the counsel and perused the relevant records available with us, especially the orders of the revenue authorities. We find that the case law viz. ACIT vs. Rajesh Jhaveri (Supra) cited by the Ld. DR is distinguished from the facts of the case in hand, because in the present case the addition was made, without incriminating material found during the search and assessment was completed u/s. 153/143(3) of the Act. However, in the case of ACIT vs. Rajesh Jhaveri (Supra), cited by the Ld. DR, the notice was served u/s. 148 of the Income Tax Act and assessment was completed accordingly. Admittedly in the present case, no incriminating material was found or seized during the course of search and seizure operation u/s. 132 of the Act in the case of the assessee. Under the circumstances, we find that the issue is covered in favour of the assesee and against the Revenue by the decision dated 28.8.2015 of the Hon ble Delhi High Court in the case of CIT vs. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. 9. Respectfully following the precedent of the Hon ble Jurisdictional High Court as aforesaid, we allow the appeal of the Assessee, because AO has completed the assessment and made the addition in dispute without any incriminating material found during the search and seizure operation and the addition in this case was purely based on the material already available on record. Hence, the addition in the case is deleted and the ground raised by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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