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TMI Blog2018 (3) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) is erroneous and not tenable in law and on fact." GROUNDS OF CROSS OBJECTION (C.O No. 175/Del/2017) 1. That the Ld. Commissioner of Income Tax (Appeals) has grossly erred in upholding the addition made in the order of assessment framed u/s 153A of the Act failing to appreciate that since no incriminating material was found as a result of search as such, addition made was outside the scope of Section 153A of the Act as such, initiation of proceedings u/s 153A of the Act as well as the addition made in the order of assessment were without jurisdiction. ITA No. 5052/DEL/2014 ( A.Y 2006-07) "l. The Commissioner of Income Tax (Appeals) has erred in law and on facts as well in deleting the addition of Rs. 2,44,70,000/- made by the A.O on account of unexplained cash credit u/s 68 of the Income Tax Act, 1961. 2. The Commissioner of Income Tax (Appeals) has erred in law and on facts as well deleting the addition of Rs. 5,62,00,000/- made by the A.O on account of unexplained cash credit u/s 68 of the Income Tax Act, 1961. 3. The Commissioner of Income Tax (Appeals) has erred in law and on facts as well in not invoking her power u/s 250(4) to cause an enquiry on the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or vide notice u/s 142(1) dated 28.9.2011. In response to the same, the AR of the assessee attended the assessment proceedings and filed information and explanations which were considered by the Assessing Officer and the case was discussed. Thereupon, the assessment was completed in terms of an order u/s 153A/143(3) dated 30.12.2011 at a total income of Rs. 3,07,67,210/- as against the returned business loss of Rs. 32,795/- wherein the Assessing Officer made an addition of Rs. 3,08,00,000/- u/s 68 of the IT Act, 1961. 4 Being aggrieved by this, the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 5. The Ld. DR relied upon the order of the Assessing Officer. The Ld. DR submitted that the CIT(A) did not appreciate the fact the assessee did not file any details before the Assessing Officer despite giving ample opportunity. The Ld. DR relied upon the decisions of the Hon'ble Delhi High Court in case of Smt. Dayawanti vs. CIT (2017) 390 ITR 496, CIT vs. Anil Kumar Bhatia 252 ITR 493, Filatex India Ltd. vs. CIT 49 taxmann.com 465 and Ashok Chaddha vs. ITO 337 ITR 399. 6. The Ld. AR submitted that the original return of income was filed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws relied upon by the appellant in support of its case. In the instant case, during the course of appeal proceedings, the appellant filed following additional evidences in support of the share capital and share premium received during the year: ........ The above evidences could not be filed during the course of assessment proceedings for the reasons explained by the appellant in its application under Rule 46A. All these evidences, alongwith written submissions of the appellant were sent to the Assessing Officer for his examination and to offer his comments. In his remand report, the Assessing Officer did not give any adverse comments on these additional evidences. The Assessing Officer merely repeated the contents of the assessment order on this issue in his remand report. The documents filed as additional evidences gave complete details of the subscribers and the Assessing Officer could have made enquiries and verified the identity and creditworthiness of the subscribers and genuineness of the transactions. What was least expected from the Assessing Officer was to conduct an enquiry from the department's own sources to verify the veracity of the additional evidence with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subscribers and it is pertinent to note that the Assessing Officer has not at all made any effort to make enquiries and verify the authenticity of the same. Merely rejecting the documents does not amount that assessee has not prove the identity, genuineness and creditworthiness of subscribers. In fact, the assessee has given all the details as per the requirement of the identity, genuineness and creditworthiness of subscribers. The CIT(A) has given a detailed findings and there is no need to interfere with the same. The Ld. DR relied upon the several jurisdictional High Court decisions, but the facts in the present case are different than the decisions relied upon by the Ld. DR. In the present case, there is no incriminating material found and besides that there additional evidence has prove the case of the assessee which was not verified by the Assessing Officer in Remand Report and therefore, the CIT(A) has rightly taken cognizance of these evidences and passed a just and proper order. The issues contested in appeal for A.Y. 2006-07 are also similar. Thus, the appeals of the Revenue are dismissed. 8. As relates to cross objection, since none of the additions made by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed." Thus, on the date of search, assessment or reassessment for both the years was not pending on the date of search, as such, nothing was abated on the date of search, and hence in the absence of any incriminating material found from the premises of the assessee, additions made in both the years were outside the scope of Section 153A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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