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TMI Blog2017 (2) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... e no’s 24 to 41 which clearly shows that the donors i.e Smt.Radha Ghosh donated ₹ 2,00,000/- in cash to Assessee, like wise Smt Minati Ghosh donated ₹ 2,00,000/- by cheque, Brindavan Ghosh for ₹ 50,000/-, Sambhu Ghosh for ₹ 50,000/-, Ashwini Ghosh for ₹ 2,00,000/- and Sita Ghosh for ₹ 1,00,000/- and confirmed the said transactions by letter of confirmations. It is observed form the assessment order that the AO had not referred to any incriminating material found during the search based on which addition had been made. - Decided in favour of Assessee. - I.T.A No. 1410/Kol/2014 - - - Dated:- 15-2-2017 - Shri Waseem Ahmed, Accountant Member And Shri S.S. Viswanethra Ravi, Judicial Member Shri Subash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld.AR of the assessee appeared before the AO and expressed his inability to produce the books of accounts of the assesse, but, however, the assessee filed written explanation along with photocopies of the bank accounts of the assessee. According to AO, in absence of any specific evidence, he proceeded to determine the income of the assessee on the basis of documents, records and evidences as available before him by making additions to an extent of ₹ 27,83,520/- by estimating the profit of business, gifts and unsecured loans by an order dated 29-12-06 passed u/s. 153A/144 of the Act. 4. In first appeal, the assessee challenged the assessment as framed u/s. 153A/144 of the Act and relied on the decisions of Co-ordinate Benches of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard rival submissions and perused the material available on record. The dispute raised is regarding legal validity of additions made by AO under section 153A proceedings of the Act. Under the provisions of section 153A, in all cases, where search is conducted under section 132 of the Act, AO is empowered to assess or reassess total income of six assessment years preceding the assessment year in which search was conducted. The section also provides that assessment or reassessment relating to any assessment year falling within period of six assessment years if pending on the date of initiation of search shall abate. There have been divergent views regarding scope of application of section 153A in cases where no incriminating material was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO can make additions in the assessment in a case where assessment has abated, even if no incriminating material has been found. But in other cases the Special Bench held that the assessment under section 153A can be made on the basis of incriminating material which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the Assessee filed his return on 27-03-2002 for the year under consideration at page no-9 of paper book and assessment had been completed under summary scheme under section 143(1) and time limit for issue of notice under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Special Bench (supra), we hold that the AO had no jurisdiction to make additions under section 153A and accordingly, are liable to be deleted. 10. We also find guidance support from the judgment dated 4th August 2016 of Hon ble High Court of Calcutta in the case of CIT Vs. Veerprabhu Marketing limited vide ITA no. 661/2008 placed on record in paper book wherein the Revenue raised a question of law and observation of Hon ble High Court of Calcutta therein relevant to the issue on hand which is reproduced and as under: 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is justified in not holding that all assessments were made under section 143(1) of the I.T.Act, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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