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TMI Blog2021 (1) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... housing Corporation (Nahava Seva)LTD. And All Cargo Global Logestic LTD. (2015) 374 ITR 645 and reaffirmed in the recent judgment CIT-20 vs Deepak Kumar Agarwal ITA NO, 1709 of 2014 dated 11th September 2017 no addition could be made for items for which there is not incriminating material. 2. The learned Assessing officer and the CIT(A)-50 erred in not providing the statement of Gyanchand B. Jain Proprietor of Simran Gems under section 132(4) though the same was sort both at the assessment and appeal stage in violation of grounds of natural justice. 3. The learned Assessing officer and CIT(A)-50 erred in not providing the assessee an opportunity to cross examine the party who had given evidence against the assessee in violation of grounds of natural Justice 4. On the facts and circumstances of the Appellant's case and in law the learned assessing officer and CIT(A) -50 erred in making addition u/s 68 of the Income Tax Act 1961 amounting to Rs. 25,00,000/- on account of alleged unexplained cash credit on the basis of surmises and conjectures. 5. On the facts and circumstances of the appellant's case and in law the learned assessing officer and CIT(A) erred in making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly accommodation entries. At the time of search, no evidence of any actual business activity was found. All the persons responsible for control of above concerns could not reply to even basis questions which a person engaged in the business of diamond is suppose to know and also could not produce basic documents which a person engaged in the business of diamond has to keep. Statement given by Shri Rakesh Kothari before Enforcement Directorate is another evidence to prove that these persons had given only accommodation loan entries. Hence, retraction made by the accommodation entry providers is an afterthought and without any corroborative evidence and contrary to the evidences gathered as discussed above and hence the retraction filed by them is rejected hereby. 29. The above discussion establish beyond doubt that the assessee company had taken accommodation loan entry from various entry providers. Hence, the loans shown by the assessee in its books of account on account of loans taken from various accommodation entry providers arc added u/s.68 of the Income Tax Act, 1961 The assessee had taken following loans from accommodation entry providers:- Sr. no. A.Y. Name of the Len ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the statements obtained upon survey of various parties. He also referred to as Catena of case laws. He upheld the addition under section 68 by observing that the financials of the lenders were not sufficient. However he did not address the assessee's challenge to jurisdiction of assessment under section 153A was without reference to search material nor he dealt with the Hon'ble Bombay High Court decision referred by the assessee in this regard. 8. Against the above order assessee is in appeal before us. We have heard both the parties and perused the records. Learned counsel of the assessee at the outset reiterated his challenge that the addition and the consequent assessment under section 153A are not sustainable as the addition is without reference to any material foundering search. He submitted that all these assessments are unabated in as much as earlier assessment was completed under section 143(1) and there was no further time remaining to complete the assessment under section 143(3). In this regard he referred to several decisions from Hon'ble Bombay High Court which were also referred before the CIT(A). Learned counsel of the assessee reiterated that the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cash transactions. He submitted that this is not at all the material on which the addition is made. He submitted that the addition is on the basis of loans which are recorded in the regular books of accounts of the assessee. Hence he submitted that addition on the basis of regular books of accounts without reference to any search material is not sustainable under section 153A on the touchstone of various decisions referred above. 12. Upon careful consideration we find that addition in the present case has been made under section 153A on the basis of statements of various parties obtained under survey and search. The addition of unsecured loan has been made on the basis of entries in the regular books of accounts duly reflected in the assessee's financial accounts. There is no reference to material found in search with reference to the addition made. It is also undisputed that these assessments are unabated. The law for assessment under section 153A in case of unabated assessment has been duly laid down by the Hon'ble Bombay High Court in the case of continental warehousing as under:- "On a plain reading of section 153A, it becomes clear that on initiation of the proceedings u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 153A cannot be done without reference to incriminating seized material. Hon'ble Jurisdictional High Court has clearly mentioned that it is those assessments which are unabated, that is not pending, to which the above said ratio will apply. Assessments which are not pending are not only those which have been completed under section 143(3) but also those for which the time for issuing notice under section 143(2) have already elapsed. In other words the reference is to those assessments in whose case assessment under section 143(3) cannot now be done. It is not at all the case of the revenue that in the appeals which have been claimed as unabated here there was time for assessment under section 143(3). In this view of the matter, in our considered opinion, the submission of the learned counsel of the assessee succeeds that addition in the case of unabated assessment without reference to incriminating seized material for assessment u/s.153A is not sustainable on the touchstone of above said Hon'ble Jurisdictional High Court decision. 14. It may not be out of place here to mention that it is specifically provided in section 153A "that assessment or reassessment if any re ..... 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