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TMI Blog2016 (6) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, the order passed by the Ld. CIT (Appeal) is bad both in the eyes of law and on facts as the assessment order passed u/s 153A itself is invalid and liable to be quashed as there was no incriminating material found during search and no proceedings were abated. 3. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the addition of Rs. 2,34,50,000/- by disallowing the genuine business expenditure. 4. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the addition of Rs. 2,34,50,000/- by disallowing the genuine business expenditure despite the fact that no material is found during search and seizure, suggesting escapement of income and no proceedings were abated. 5. That the impugned appellate order is arbitrary, illegal, bad in law and in violation of rudimentary principles of contemporary jurisprudence. 6. That the Appellant craves leave to add/alter any/all grounds of appeal before or at the time of hearing of the Appeal." ITA No.5523/Del/2015 (AY 2006-07) "1. That on facts and circumstances of the case, the order passed by the Ld. CIT (Appeal) is bad both in the eyes of law and on facts. 2. That on facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Buildtech Pvt. Ltd., H-3, 2nd Floor, Shivaji Park, Punjabi Bagh, Delhi. v. M/s. Roshan Buildtech Pvt. Ltd., 19/20-1, Moti Bagh, Sarai Rohilla, Delhi. vi. M/s. Gautam Buddha Buildtech Pvt. Ltd., 203, 2nd Floor, Laxmi Nagar, Delhi. vii. M/s. Rupayan Developers Pvt. Ltd., C - 383, Health Club, Bank Street, Munirka, Delhi. viii. M/s. Lotus Buildwell Pvt. Ltd., WZ-14, Janak Puri A-2, New Delhi. 5. Assessee was called upon to furnish the details of the transactions with the aforesaid parties along with supporting documents viz. agreements, copies of bills, details of site and nature of work executed, etc. to prove the genuineness of the transactions and the assessee accordingly filed the details of transactions as under :- Sl. No. Name of concern Amount claimed by Jaipuria Infrastructure Developers Pvt. Ltd. as expense F.Y.2005-06 F.Y.2006-07 i. M/s. Matrix Buildcon Pvt. Ltd. - 1,51,00,000 ii. M/s. Anupam Buildmart Pvt. Ltd., - 1,21,00,000 iii. M/s. B.P. Buildtech Pvt. Ltd. - 1,20,00,000 iv. M/s. Naman Buildtech Pvt. Ltd. - 1,60,00,000 v. M/s. Roshan Buildtech Pvt. Ltd. 93,75,000 57,50,000 vi. M/s. Gautam Buddha Buildtech Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch/postsearch enquiry, it has come on record that assessee company is involved in the real estate business of S.K. Jaipuria group and is indulged inflating the cost of project by debiting bogus expenses by raising bill from non-existing parties or entry providers, namely:- i. M/s. Matrix Buildcon Pvt. Ltd., D-6, Gali No.4, Ganga Vihar, Delhi. ii. M/s. Anupam Buildmart Pvt. Ltd., E-7A, 1st Floor, Friends Complex, Jawahar Park, Laxmi Nagar, Delhi. iii. M/s. B.P. Buildtech Pvt. Ltd., 9/1934, Gali No.2, Kailash Nagar, Delhi iv. M/s. Naman Buildtech Pvt. Ltd., H-3, 2nd Floor, Shivaji Park, Punjabi Bagh, Delhi. v. M/s. Roshan Buildtech Pvt. Ltd., 19/20-1, Moti Bagh, Sarai Rohilla, Delhi. vi. M/s. Gautam Buddha Buildtech Pvt. Ltd., 203, 2nd Floor, Laxmi Nagar, Delhi. vii. M/s. Rupayan Developers Pvt. Ltd., C - 383, Health Club, Bank Street, Munirka, Delhi. viii. M/s. Lotus Buildwell Pvt. Ltd., WZ-14, Janak Puri A-2, New Delhi. 10. Assessee was called upon to furnish the details of the transactions with the aforesaid parties along with supporting documents viz. agreements, copies of bills, details of site and nature of work executed, etc. to prove the genuineness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material was unearthed to make reassessment, the assessment order is not sustainable and relied upon the judgment cited as CIT vs. Kabul Chawla - 380 ITR 173 (Del.). 15. However, on the other hand, ld. DR to repel the contentions raised by the ld. AR also relied upon Kabul Chawla (supra) by specifically emphasizing its paras 37 (iv), (vi) and (vii), reproduced for ready reference at para no.18 of this order, and also contended that provisions contained u/s 153A is enabling provisions having inherent powers with the AO to make an assessment on the basis of post-search material or information already available with him which could be related to the evidence found. 16. Undisputed facts necessary to adjudicate upon the controversy at hand, are inter alia that the return of income was filed by the assessee company qua the AY 2006-07 on28.11.2006, which was processed u/s 143(1) and no notice u/s 143(2) was issued till the date of search i.e. 27.03.2012; that assessment qua the AY 2007-08 was completed u/s 143(3) on 29.12.2009; that the assessment orders under challenge bear no reference of material, if any, unearthed during the search operation. 17. In the backdrop of the aforesaid un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 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 153 A 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viders." (ii) that the ratio of the judgment in case of Kabul Chawla (supra) is required to be extracted by perusing the judgment in entirety and not by picking up the favourable sentences and by ignoring the unfavourable one. Highlighted portion of para 37 (iv), (v), (vi) & (vii) of Kabul Chawla (supra) is crux of the issue involved which is applicable to the facts and circumstances of the case; (iii) that the ratio of the judgment Kabul Chawla (supra) is that in all circumstances, completed assessment can be interfered with by the AO u/s 153A only on the basis of incriminating material unearthed during the course of search; (iv) that not only this, the addition in this case has been made by the AO u/s 153A on the sole ground that assessee has failed to produce the parties with whom the assessee company has transacted during the year under assessment who have failed to turn up despite the issue of notice u/s 133 (6) of the Act; (v) that the contention of the ld. DR that the assessment qua the AY 2006-07 was pending as on date of search as mere issuances of acknowledgement by the ministerial staff does not imply that assessment has been completed, is not tenable in the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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