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TMI Blog2018 (6) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... .Nos. 1008, 1009 And 1010/MUM/2016 - - - Dated:- 4-6-2018 - SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR, HON'BLE ACCOUNTANT MEMBER For The Assessee : Shri Prateek Jain For The Revenue : Shri Anadi Varma ORDER PER C.N. PRASAD (JM) 1. These three appeals are filed by the assessee against the common order of the Ld. Commissioner of Income-tax (Appeals)-11, Pune dated 21.12.2015 for the Assessment years. 2005-06, 2006-07 2007-08. 2. In all these three appeals the assessee is challenging the order of the Ld. CIT(A) in upholding the action of the Assessing Officer in passing the order u/s.153A without jurisdiction and in the absence of any incriminating materials. 3. Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additions/disallowances were made based on any seized materials. There is no any reference to seized materials whatsoever based on which the additions/disallowances were made. Similarly, though the assessee raised specific ground before the Ld.CIT(A) that the assessments made are bad in law for the reason that Assessing Officer made additions without there being any seized materials pursuant to action u/s. 132 of the Act, we find that the Ld.CIT(A) brushed aside the contentions of the assessee and held that the Books of Accounts inventoried during the search would be like a new materials and the Assessing Officer has to take note of such materials while completing the assessment. U/s. 153A of the Act. This contention of the Ld.CIT(A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 483], decision of the Hon'ble Supreme Court in the case of the CIT v. Calcutta Knitwears [362 ITR 673] and CIT v. Continental Warehousing Corporation [374 ITR 645] held as under: 4. We have heard the rival submissions and perused the orders of the authorities below and the case-laws relied on. The short point for consideration in all these appeals before going into the merits of the disallowance is whether there is any incriminating material found in the course of search and whether the assessments have been abated or not. On a specific query by the Bench to the Ld. Departmental Representative to show the kind of seized material found in the course of search, based on which the impugned addition in the appeal was made and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. Recently, the Bombay High Court in the case of CIT Vs. Gurinder Singh Bawa (supra) considered the question as to whether the addition can be made in non-abated assessments without there being any seized incriminating material and by applying its decision in the case of CIT Vs. Continental Warehousing Corporation reported in 374 ITR 645 (Bom.) held that once an assessment was not pending but had attained finality for a particular year, it could not be subject to proceedings under section 153A of the Act, if no incriminating materials were found in the course of the search. While dealing with the issue, the Jurisdictional High Court also considered the Special Bench decision of the Tribunal in the case of All Cargo Global Logistics Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 43.67 lakhs as deemed dividend has to be deleted. This on the ground that there were no accumulated profits available with M/s. K. P. Developers (P.) Ltd. to distribute amongst it's shareholders. However, so far as the addition in respect of the unexplained gifts aggregating to ₹ 93.70 lakhs is concerned, the Commissioner of Income- tax (Appeals) did not disturb the finding of the Assessing Officer. On further appeal before the Tribunal, the assessee inter alia challenged the validity of the assessment made under section 153A of the Act. This onaccount of the fact that no assessment in respect of the six assessment years were pending so as to have abated. The impugned order accepted the aforesaid submission of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings. In view of the above, on issue of jurisdiction itself the issue stands concluded against the Revenue by the decision of this court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra). In the appeal before us, the Revenue has made no grievance with regard to the impugned order of the Tribunal holding that in law the proceedings under section 153A of the Act are without jurisdiction. This in view of the fact that no assessment was pending, so as to abate nor any incriminating evidence was found. The grievance of the Revenue is only with regard to finding in the impugned order on the merits of the individual claim regarding gifts and deemed dividend. However once it is not disputed by the Revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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