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TMI Blog2018 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... vit along with the affidavit of the clerk because of whom the delay has been occurred. The application for condonation of delay is as under:- 1. "The applicant has filed an appeal before the Hon'ble Tribunal against the CIT(A) order dated 10/01/2013 which was received on 14/02/2013 for the assessment year 2004-05. 2. Therefore, the last date of filing the appeal before your honour was 15/04/2013. 3. The said appeal is filed on 25/11/2014, thus late by 589 days. 4. Applicant has filed his return of income for the assessment year 2004-05 in response to notice u/s 153A on 08.04.2011 declaring Rs. 6,52,24,390/- as his income. 5. In the present case, the assessment was concluded u/s 153A at an income of Rs. 6,59,60,630/- vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. That as explained above, it is humbly submitted that the delay in filing the appeal was unintentional and by reason beyond the control of the applicant. Accordingly, it is prayed that the delay in filing the appeal be condoned and appeal be heard on merit." The Affidavit of Clerk is as under:- "AFFIDAVIT" I, Kuwar Kant Jha, aged 34 years, S/O Shri Baidya Nath Jha, residing at Flat No. 41/18, Pocket-7, Sector-82, Noida-201304, hereby solemnly affirm as under:- 1. That I am working as an accountant in Jaksons Limited. 2. That the appeal before Hon'ble ITAST was filed on 25/11/2014 against the Ld.CIT(A) order dated 10/1/2013 which was received on 14/2/2013. 3. That the last date for filing the appeal before Hon'ble ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in law in rejecting the contention of the assessee that the order passed by the Learned A.O u/s 153A is bad and liable to be quashed as the same has been framed consequent to search which itself was unlawful and invalid in the eye of law. 3. On the facts and circumstances of the case, the Ld.CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the proceedings initiated u/s 153A/143(3) are in violation of the statutory conditions of the Act and the procedure prescribed under the law and as such the same is bad in the eye of law and liable to be quashed. 4. On the facts and circumstances of the case, the proceedings initiated u/s 153A are bas in law in the absence of any incriminating mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 380 ITR 573 in which it was held that no addition can be made u/s 153A we have heard both the parties and perused the material available on record not incriminating mater was found during the course of search. The Ld. AR submitted that there was no incriminating material found which was pointed out by the Ld. AR through the decision of the Tribunal in case of the assessee for Assessment Year 2006-07 being ITA No. 383/Del/2013 order dated 27/5/2015 wherein the same search operation which was conducted on 10/02/2010 was under challenge. There is a finding of the Tribunal that there was no incriminating material found during the search which is confirmed by the Hon'ble Delhi High Court in assessee's own case being ITA 910 to 913/2015 order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to remain quashed." The Ld. AR relied on the decision of the CIT vs. Kabul Chawla (2016) 380 ITR 573 wherein it is held as under: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned ITA Nos. 707,709 and 713 of 2014 of decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatory issued to the person searched requiring him to file returns for six Ays immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 153A 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 incriminati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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