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TMI Blog2018 (11) TMI 1614X X X X Extracts X X X X X X X X Extracts X X X X ..... position in this case, the very foundation of the additions ceases to be sustainable in law. That is precisely what the learned CIT(A) has held. We approve the conclusions arrived at by the learned CIT(A) and decline to interfere in the matter. - Decided against revenue. - IT(SS)A Nos. 49 & 50/Ahd/2017 - - - Dated:- 16-11-2018 - Justice P P Bhatt, President and Pramod Kumar, Vice President For the Appellant : Vinod Talwani For the Respondent : S N Soparkar ORDER 1. These two appeals, filed by the Assessing Officer, are directed against the consolidated order dated 2nd November 2016 passed by the CIT(A) in the matter of assessment under sections 143(3) r.w.s. 153A(1)(b) of the Income Tax Act, 1961, for the assessment years 2008-09 and 2010-11. 2. Grievances raised in these appeals are common, but for difference in the figures, and are as follows: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and/or on facts in not appreciating the provisions of section 153A of the I.T. Act which requires the total income to be brought under tax without any restrictions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2008-09, made additions of ₹ 2,14,50,000, on account of share capital having been treated as unexplained credits, and of ₹ 1,07,250 as commission paid for the alleged bogus capital. In the assessment year 2010-11, similar additions were made for ₹ 4,65,00,000 and ₹ 2,32,500 respectively. Aggrieved by the additions so made in the course of impugned assessment proceedings under section 153A r.w.s. 143(3), the assessee carried the matter in appeal before the CIT(A). Grievances were raised, inter alia, in respect of jurisdiction of the Assessing Officer to disturb the completed assessment on basis other than incriminating material found during the search operations. Accepting this plea, the CIT(A) quashed the impugned additions by observing as follows: 6.1 The search was carried out on 13/10/2011. The time limit for issuance of notice u/s 143(2) for these two assessment years under appeal, therefore, had indisputably expired as per column 4, much before the date of search. The Ld. AR is therefore right, which of course has also not been disputed by the AO, that the assessment for the year under reference had attained finality as on the date of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear under reference to enquire/make addition, the AO is duty-bound merely to reiterate the concluded assessment which had attained finality before the date of search. I would only quote from these decisions of Hon. Tribunal and Hon. High Court in the case of Saumya Construction: Saumya Construction Pvt Ltd. IT(SS)A. No. 3/Ahd/2014 Dated:- 21-8-2015 ......6. We have noted that, as teamed counsel fairly accepts, the grievance of the assesses is not against framing of the assessment u/s 153A but is confined to making of any additions or disallowances other than on the basis of incriminating material found during search operations. In effect thus, additions cannot be made other than on the basis of incriminating material found during search operations. That plea stands approved by a coordinate bench of the tribunal, in the case of Sanjay Aggarwal Vs. DCIT 1(2014) 47 taxmann.com 210 (Del)], by observing as follows: 13. The above extracted observations of the Hon. High Court, which are though obiter dicta, make the point clear that where an assessment order has already been passed for a year (s) within the relevant six assessment years, then also the AO i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore not sustainable in law. In view of this, and respectfully following the Jurisdictional High Court mandate, I have no hesitation in deleting the additions as under: AY Additions deleted 2008-09 ₹ 2,15,57,250/- 2010-11 ₹ 4,67,32,500/- 8. The appellant would get relief of equivalent amount. Legal ground no.(ii) is thus allowed for both the years under appeal. 4. The Assessing Officer is aggrieved of the relief so granted by the CIT(A) and is in appeal before us. 5. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 6. The question that really calls for our consideration is whether, in the absence of any incriminating material found during the search operations as a result of which the assessments under section 153A are framed, the completed assessments can be disturbed by making the additions on the basis of material other than incriminating material found during t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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