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TMI Blog2017 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... : These appeals of Revenue are directed against a common order dated 22/05/2015 passed by the Commissioner of Income Tax (Appeals)-30, New Delhi [in short the CIT-(A) ] in relation to assessment years 2008-09 and 2009-10 respectively. Being identical issues involved in both the appeals, same were heard together and disposed off by way of this consolidated order. The Grounds of appeal in both the assessment years being identical, we are reproducing the grounds of appeal raised in ITA No. 5002/Del/2015 for assessment year 2008-09 as under: 1 . On the facts circumstances of the case, the Ld . CIT ( A ) has erred in law on facts by not appreciating the facts in its entirety as brought on record in the case of Sh . Anil Bhatia by the jurisdictional High Court . 2 . On the facts and in the circumstances of the case, the Ld . CIT ( A ) has in law and on facts in arriving at the conclusion that the words total income as used in Section 153A would only mean undisclosed income discovered from seized / incriminating material . 3 . On the facts and in the circumstances of the case, the Ld . CIT ( A ) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings under section 153A of the Act for the assessment years 2008-09 and 2009-10, the Assessing Officer disallowed the claim of interest paid to customers amounting to ₹ 3,76,90,967/- and ₹ 13,09,87,789/- respectively on the ground that it should be part of project in progress account and that too the assessee failed to substantiate with evidences. Before the learned CIT-(A), the assessee challenged jurisdiction assumed under section 153C of the Act and raised the issue that no addition could have been made in completed assessment in absence of any incriminating material found during the course of search with regard to the addition made. The Ld. CIT-(A) after considering the submission of the assessee allowed the appeals for both the assessment years, in favour of the assessee on the ground of jurisdiction, with finding as under: I have considered the assessment order, written submission and oral arguments of Ld . AR . I have perused the assessment made u / s 153C read with section 153A for all assessment year . There is no addition on the basis of any evidence or incriminating material found during the search . I have peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven opinion for the scope of assessment u / s 153A where no incriminating documents have been seized . Hon able ITAT SMC Delhi, in the case of parivar Properties Pvt . Ltd New Delhi, vs . DCIT, CC - 12, New Delhi has decided that addition can be made without incriminating documents in only in the case of open assessment u / s rebated assessment 153A / 153C Ld . AR relied upon the decision of SSP Aviation Ltd . Vs . DCIT ( 2012 ) 346 ITR 0177 ( Del ) , LMJ International Ltd . ( 2008 ) 22 SOT 315 Kol, MGF Automobiles Ltd . Vs . ACIT CC - 7, New Delhi ( ITA Nos . 4212 4213 / Del / 2011, ITAT E Bench, New Delhi . Ld . AR further argued that in the amendment in Budget - 2014 u / s 153C required that the paper on the basis of which satisfaction is recorded must bearing on the determination of income . I have considered entire judicial pronouncements relied by Ld . AR . As I have held earlier that there is no incriminating documents relied upon in the satisfaction note recorded u / s 153C, in present case, in my view no addition can be made under this circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion he relied on the decision of Hon ble Supreme Court in the case of CIT-III, Pune Vs. Singhad Technical Education Society, (2017) 84 taxmann.com 290 (SC). He further submitted that no addition could have been made in completed assessments in absence of any incriminating material as held by the Hon ble Delhi High Court in the case of PCIT Vs. Metta Gutgutia in ITA No. 306/2017, wherein the Hon ble High Court has upheld the finding in the case of CIT versus Kabul Chawla (2016) 380 ITR 573 (Del). 6. We have heard the rival submissions and perused the relevant material on record. In the instant case the learned CIT-(A) has given the finding that as on the date of search no assessment was pending in both the assessment years involved. The learned CIT-(A) has also given the finding that no incriminating material was found or seized in relation to the assessment years involved and the Assessing Officer has not relied on the incriminating or seized material for making additions in the both the assessment years involved. Before us, the Ld. CIT(DR) failed to rebut these factual finding of the Ld. CIT-(A). 7. The Hon ble Delhi High Court in the case of Meeta Gutgutia (supra) has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all assess or reassess the total income in respect of each assessment year falling within such six assessment years . The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub - section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate . Subsection ( 2 ) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub - section ( 1 ) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived . The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside . Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act . Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act . Xxx 19 . On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of an the six assessment years . In the opinion of this court, the said contention does not merit acceptance, inasmuch as . the assessment in respect of each of the six assessment years is a separate and distinct assessment . Under section 153A of the Act, assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition . If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated . In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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