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TMI Blog2017 (12) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... earch. In the absence of any incriminating material during the course of search, the Ld. CIT(A) was justified in relying upon the decision of the Hon’ble Delhi High Court in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) for the purpose of deleting the addition - Decided in favour of assessee. - ITA.No.2047/Del./2016 - - - Dated:- 7-12-2017 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L . P . SAHU, ACCOUNTANT MEMBER For The Revenue : Ms . Rachna Singh, CIT - D . R . For The Assessee : None ORDER PER BHAVNESH SAINI, J . M . This appeal by the Revenue has been directed against the order of the Ld. CIT(A)-30, New Delhi, dated 25th January, 2016, for the A.Y. 2007-2008, challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case original assessment had already framed under section 143(3) of the I.T. Act. Therefore, in the absence of recovery of any incriminating material of the unexplained cash credit, no addition could be made because no assessment was pending on the date of the search. The Ld. CIT(A) considering the explanation of assessee in the light of material on record, deleted the addition following the decision of the Hon ble Delhi High court in the case of Kabul Chawla (supra). The findings of the Ld. CIT(A) in paras 5.3 and 5.4 of the order are reproduced as under : 5 . 3 Findings : The findings are as under :- 5 . 4 I have carefully considered assessment order, written submissions, case laws relied upon and oral argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by the A . O . , is without any jurisdiction for making such illegal and untenable addition u / s 68 of the Act . In view of the above facts, it is submitted by the appellant that decision of the Hon ble jurisdictional High Court of Delhi, in the case of CIT vs . Kabul Chawla 61 Taxmann . com 412 ( Del .) , is squarely applicable to the facts of the appellant . CONCLUSION : In view of the above, it is clear that : ( a ) The original assessment order dated 18 . 12 . 2009, passed u / s 143 ( 3 ) , was completed before the initiation of search and seizure action u / s 132, on 12 . 01 . 2012 . Therefore, I hold that no assessment / reassessment proceedings, were abat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial during the course of search and relied upon the decision of the Allahabad High Court in the case of Raj Kumar Arora dated 11th July, 2014 in ITA.No.56 of 2011, decision of Kerala High Court in the case of E.N. Gopakumar vs. CIT (2016) 75 taxmann.com 215, decision of Allahabad High Court in the case of CIT vs. Kesarwani Zarda Bhandar Sahson ITA.No.270 of 2014, decision of Kerala High Court in the case of CIT vs. St. Francis Clay D cor Tiles 385 ITR 624 and decision of Hon ble Delhi High Court in the case of Smt. Dayawanti Gupta vs. CIT 390 ITR 496. The Ld. D.R. submitted that the department has not accepted the decision of Hon ble Delhi High Court in the case of Kabul Chawla (supra) and SLP is pending before the Hon ble Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The above distinguishing factors in Dayawanti Gupta ( supra ) , therefore, do not detract from the settled legal position in Kabul Chawla ( supra ) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts . 71 . For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000 - 01 to 2003 - 04 was without any legal basis as there was no incriminating material qua each of those AYs . Conclusion 72 . To conclude : ( i ) Question ( i ) is answered in the negative i . e . , in favour of the Assessee and against the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long to the petitioner . It was not the case of the Revenue that three documents were in hand - writing of the petitioner . In the circumstances, when the condition precedent for issuance of notice was not fulfilled, action taken under section 153C of the Act stood vitiated . 8. In the present case, even no incriminating document was found during the course of search so as to make the addition under section 68 of the I.T. Act on account of unexplained cash credit. The Ld. CIT(A) in view of these findings did not decide the issue on merit. The above discussion clearly show that department has no case for interference. The Ld. D.R. has not pointed out any infirmity in the order of the Ld. CIT(A). 9. In the result, appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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