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TMI Blog2015 (12) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no material found at the time of search which can be said to be an incriminating material to justify the impugned additions and it is also not the case of the Revenue that the additions have been made on the basis of the materials found at the time of search. No reason/justification in making the impugned additions. Order of the Ld. CIT(A) is accordingly set aside. The AO is directed to delete the impugned additions. Notice issued u/s. 143(2) - Held that:- We have given a thoughtful consideration to the chronological event relating to the filing of original return of income, revised return of income and notice issued u/s. 143(2) of the Act. Admittedly, the revised return of income was filed on 30.6.2006. As per the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years under consideration i.e. 2004-05 and 2005-06, these appeals were heard together and disposed of by this common order for the sake of convenience. ITA No. 5077/M/2010 2004-05 2. Briefly stated the facts of the case are that the original return of income was filed on 31.10.2004. A survey action was conducted on 5.1.2006. During the course of which the assessee surrendered additional income and accordingly the return of income was revised on 29.3.2006. The assessment was completed u/s. 143(3) of the Act vide order dated 29.12.2006. 2.1. Subsequently a search and seizure operation u/s. 132 of the Act was carried out on 10.10.2007 pursuant to which notice u/s. 153A was issued and served upon the assessee. In response to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the additions have been made without any reference to any incriminating material found during the course of the search operations, therefore, assessment made u/s. 153A of the Act is bad in law. Reliance was placed on the decision of the Hon ble High Court of Delhi in the case of Kabul Chawla in ITA No. 707/2014 with 709/2014 dated 28.8.2015. It is the say of the Ld. Counsel that since the assessments have been made without any incriminating material found during the course of the search, the order is bad in law. 5. Per contra, the Ld. Departmental Representative could not bring any distinguishing decision in favour of the Revenue nor the DR could point out any addition based upon any incriminating material found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon ble High Court had an occasion to consider the following questions of law: 1. Whether on the facts and in the circumstances of the case, the Hon ble ITAT is correct in narrowing down the scope of assessment u/s. 153A in respect of completed assessments by holding that only undisclosed income and undisclosed assets detected during search could be brought to tax? 2. Whether on the facts and in the circumstances of the case, the Hon ble ITAT is correct in law in holding that the scope of Sec. 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income, that comes to the notice of the AO.? 3. Whether on the facts and in the circumstances of the case, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned additions. Order of the Ld. CIT(A) is accordingly set aside. The AO is directed to delete the impugned additions. 9. In the result, the appeal filed by the assessee is allowed. ITA No. 6123/M/2010- A.Y-2005-06 10. Facts of this year are that the original return was filed on 25.10.2005. Pursuant to survey operation conducted on 5.1.2006, additional income was offered for taxation by filing a revised return of income on 30.6.2006. A notice u/s. 143(2) of the Act was issued but no assessment made pursuant to this notice issued u/s. 143(2) of the Act. 10.1. A search and seizure operation was conducted on 10.10.2007 and accordingly statutory notices were issued, the return of income was filed and the assessment was comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted as such u/s. 143(1) of the Act which also means that a completed assessment can be opened only when some incriminating material was found during the course of the search. 15.2. We have discussed this issue at length in ITA No. 5077/M/2010 (supra). Drawing support from our own findings given therein, we set aside the order of the First Appellate authority and direct the AO to delete the impugned additions. 16. In the result, the appeal filed by the assessee is allowed. ITA No. 5197/M/2013 A.Y. 2005-06 17. This appeal by the assessee is against the levy of penalty u/s. 271(1)(c) of the Act. 18. Since we have held the assessment made u/s. 143(3) r.w. Sec. 153A of the Act is bad in law in ITA No. 6123/M/2010 of even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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