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TMI Blog2019 (7) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... r.w.s.143(3) of the Act, 1961, all dated 26.12.2017, for the assessment years 2010-2011 to 2015-2016 in the case of assessee- Dr. Sukanta Chandra Mallick and for the assessment years 2014-2015 to 2016-2017 in the case of Dr. Sambeet Kumar Mallick, respectively. 2. Since the sole issue involved in all these appeals is identical, except difference in figures, therefore, with the consent of both the parties, all the above appeals have been taken for hearing en masse and disposed off by this consolidated order. For the sake of convenience, we shall take into consideration the facts mentioned in assessee's appeal for the assessment year 2010-2011 in IT(SS)A No.86/CTK/2018 in the case of Dr. Sukanta Chandra Mallick , wherein the assessee has raised grounds as under :- "1. That the order passed by the learned CIT(A) is arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-II, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssees are in further appeals before the Tribunal agitating the additions made by the AO and upheld by the CIT(A) for the respective assessment years under consideration, are not sustainable in absence of incriminating materials. 6. Ld. AR, before us, submitted that the CIT(A) has erred in not accepting the claim of the assessees that there was no incriminating material found during the course of search conducted u/s.132 of the Act on 12.03.2016 and further the additions made in respect of all the assessment years under consideration are not sustainable as they are unabated. It was also the contention of ld. AR before us that being the appellate authority, the CIT(A) is bound to follow the legal hierarchy of applicability of decisions of higher forums. Even the CIT(A) has not considered the judicial pronouncements favouring the assessees in the very same issue, relied upon by the assessees, which have been reproduced by the CIT(A) in para 6.2 at page 4 of its order for the assessment year 2010-2011. The ld. AR strenuously supported his case relying on plethora of judicial decisions placed in the paper book and prayed for allowing the appeals of both the assessees for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the books of accounts seized relating to the group of the cases as a whole. For the completeness of our order, we would like to reproduce the para 2 of the assessment order, which reads as under :- "02. Notice u/s.153A was issued on 31.01.2017. The A.R. of the Assessee, Ms. Swati Kejirwal, FCA appeared and submitted a copy of the Return u/s.153A filed on 10.03.2017 showing a Total income at ₹ 2,05,420/-. Here Total Income u/s.153A is equal to that shown in the Return u/s.139(1). Accordingly, notices us/s.143(2) & u/s.142(1) are issued and served. The A.R., Ms. Swati Kejirwal, FCA appeared from time to time and the case is discussed with her with reference to the facts in the return of income and also with reference to the books of accounts seized relating to the group of the cases as a whole." 9. Further, the ld. AR drew our attention to the Panchanama filed in the paper book at pages 8 to 23 and submitted that no such books of accounts has been seized neither any incriminating material is found during the course of search to enable the AO to invoke the provisions of Section 153A of the Act. Accepting the contention of ld. AR, we have gone through the panchanama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating search material and no addition dehors the search material can be made. 11. Undisputedly, in the instant case, the assessment for the assessment years in question have already been completed on the date of search in the cases of both the assessees and since no incriminating material was unearthed during the search, as is evident from the panchanama prepared during the course of search, no additions can be made to the income already assessed. To support our view, we shall rely on the decision of Hon'ble Delhi High Court in the case of Kabul Chawla, [2015] 61 taxmann.com 412 (Delhi), wherein the Hon'ble High Court has held as under :- "On a conspectus of section 153A(1), read with the provisos thereto, and in the light of the law explained in various decisions, the legal position that emerges is as under: (i) Once a search takes place under section 132, notice under section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six assessment years immediately preceding the previous year relevant to the assessment year in which the search takes place. (ii) Assessments and reassessments pending on the date of the search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. [Para 38] The revenue's appeals are accordingly dismissed.[Para 40]" 12. In the present case, we find that there is nothing on record to suggest that any material was found in the course of search which would show any connection on addition made by AO with the seized material which is the subject matter of dispute in assessment order. Nothing is found contrary to the stated position of the assessee. We also find that there is no material referred to by the AO to say that any incriminating material was unearthed during the search. Therefore, in the factual background, we do not find any justification for the AO to make the impugned additions/disallowance in an assessment finalized u/s 153A of the Act in the absence of any incriminating material having been found during the course of search, qua the impugned additions made in assessment order. Respectfully, following the ratio of decision of the Hon'ble Delhi High Court in the case of Kabul Chawla (supra), wherein, the Hon'ble High Court after detail analysis concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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