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TMI Blog2016 (8) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... see on 22nd March, 2006. If it is presumed that the order was passed u/s 153C, then it has to be struck down on the ground that, the requisites of S.153C are not fulfilled. Alternatively if it is presumed that the assessment passed u/s 153A of the Act, as a consequence to a search on the locker of the assessee on 10th April, 2006, the additions made in the assessment have to be deleted for the reason that, the same are not based on any incriminating material or assets seized during the search. As in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ) wherein it is laid down that no addition can be made in the assessment being framed u/s 153A, when there is no incriminating material or assets seized during the course of search. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order are that jewellery weighing 446.89 gms. valuing ₹ 10,82,074/- was found from the room of the appellant and jewellery weighing 185 gms valuing ₹ 1,49,000/- was found from the locker No.517 with Canara Bank. Thus in total 631.89 gms jewellery was found valuing ₹ 12,31,074/-. The A.O. noted that the jewellery appearing at S.No.7 and 8 in the valuation report was worth ₹ 4,25,080/-. No evidence/source of acquisition of these two items was explained during the course of search. Accordingly these two items of jewellery valuing ₹ 4,25,080/- were seized. Not only that, in the statement dated 3/5/2006 Shri Abhay Gupta has also admitted to disclose a sum of ₹ 4,25,000/- as unexplained jewellery acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed sources, the addition was upheld. 4. Further aggrieved, the assessee is in appeal before us. 5. We have heard Shri A.K.Jain, the Ld.Counsel for the assessee and Shri Ravi Jain, the Ld.Sr.D.R. on behalf of the Revenue. 6. The Ld.Counsel for the assessee submitted that: (a) Search was carried out at the residence of the family of the assessee on 22nd March, 2006 and that there was no warrant in the name of the assessee. Nevertheless restraint orders u/s 132(3) of the Act were given against the operation of bank locker of the assessee with regard to locker no.517 with Canara Bank, Tagore Park, Model Town-I, Delhi. On 10.4.2006 a warrant was issued for searching the locker of the assessee. The jewellery found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and submitted that there is no concept of limited warrant in the Income Tax Act. He submitted that search had taken place on 22.3.2006 and certain gold and jewellery was seized. He submitted that the assessee had signed the admission given by Shri Abhay Gupta. He further submitted that the assessee contended that the gold and jewellery was acquired by her by way of gifts on various occasions, but no evidence or details have been filed. He distinguished the case law cited by the assessee. 8. Rival contentions heard. On a careful consideration of the facts and circumstances of the case, perusal of material on record, orders of lower authorities, case law cited, we hold as follows. 9. A search has taken place on 22.3.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings stood vitiated. 2. On 14th August, 2015 this Court passed an order in the present appeal, the relevant portion of which reads as under: 3. The point urged by the Revenue in this Appeal against the order dated 28th November, 2014 of the ITAT in ITA No. 20861 DEL/2013 pertaining to the Assessment Year ( AY ) 2009-10 is that the Assessment itself was framed only under Section 143 (3) of the IT Act and therefore the ITAT was in error in proceeding on the basis that it was under Section 153C of the Act. 4. Learned counsel for the Respondent/Assessee on the other hand drew the attention of this Court to para 9 of the Assessment Order which states that it has been passed with the prior approval of the Addl. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153C, then it has to be struck down on the ground that, the requisites of S.153C are not fulfilled. 13.2 . Alternatively if it is presumed that the assessment passed u/s 153A of the Act, as a consequence to a search on the locker of the assessee on 10th April, 2006, the additions made in the assessment have to be deleted for the reason that, the same are not based on any incriminating material or assets seized during the search. We rely on the decision of Hon ble Jurisdictional High Court in the case of Kabul Chawla reported in 380 ITR 573 (Del.) wherein it is laid down that no addition can be made in the assessment being framed u/s 153A, when there is no incriminating material or assets seized during the course of search. 13.3. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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