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TMI Blog2016 (10) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act which was levied on the addition made in the quantum order framed by the AO. 3. The appellant craves leave for addition, modification, alteration, amendment of any of the grounds of appeal. 3. The grounds raised in ITA No. 833/Del/2014 (AY 2007-08) read as under:- 1. That on the fact and circumstances of the case the order passed by Ld. CIT(A) is bad in law and nature and therefore it is liable to be quashed. 2. That on the facts and circumstances of the case the Ld. CIT(A) grossly erred in confirming the penalty of Rs. 3,17,45,629/- levied u/s. 271(1)(c) of the Act which was levied on the addition made in the quantum order framed by the AO. 3. The appellant craves leave for addition, modification, alteration, amendment of any of the grounds of appeal. 4. The facts narrated by the Revenue Authorities are not disputed by both the parties, therefore, the same are not repeated here for the sake of convenience. 5. At the time of hearing, Ld. Counsel of the Assessee, Ms. Sumangla Saxena, Advocate stated that in the quantum proceedings on which the penalty has been imposed has already been decided by the ITAT, Delhi Bench in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the assessment were made on 24/12/2009 or by 11.2.2009 (as the case may be) in pursuance to the search conduced on 21/3/2007 on the basis of authorization dated 20/13/2007. In the case of Shri Anil Kumar Bhatia & ors (supra) revenue had preferred appeal before the Hon'ble High Court against the order of the Tribunal and the issue raised before the Hon'ble High Court was as to whether even if assessment order had already been passed in respect of any of those 6 assessment years either U/S 143(1) (a) or Section 143(3) prior to intimation of search requisition, still Assessing Officer is empowered to reopen those proceedings uls 153A without any fetters and reassess total income taking note of undisclosed income, if any, unearthed during the search. The expression "unearthed during the search is very significant to indicate that in respect of completed or non-pending assessments the Assessing Officer is duty bound to assess or reassess the total income but to the extent of income "unearthed during the search" It was answered by the Hon'ble High Court in affirmative and in favour of the Revenue. In that case, the Hon'ble High Court has been pleased to hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed fact that no addition was made based on the incriminating material found during the course of search. The other decision relied upon by the Ld. CIT-DR having distinguishable facts are also not helpful to the revenue. If the decision in the case of CIT vs. Chetan Das Lachman Das (supra) relied upon by the Ld. CIT-DR is gone through iIl its totality, it help the assessee. In para 11 it has been made clear that an assessment has to be made under section 153A only on the basis of seized material. We thus respectfully following the ratio laid down in the above cited decisions especially the decision of Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd Vs. CIT (Supra) and the decision of Bombay Bench of the Tribunal in the case of ACIT vs. Pratibha Industries Ltd. (supra) and others of Delhi Benches I we hold that in absence of incriminating material found during the course of search the AO was having no jurisdiction in the case of present assessees to frame assessment U/S 153A of the Act. The assessment in question are thus not valid in the eyes of law. The same are quashed as such. The ground is thus allowed in favour of the assessees. 13. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, after discussing the earlier decisions of the IT AT and the High Courts, noted that mere passing of a restraint order would not extend the time limit available for completion of the assessment pursuant to the search. It has been noted that Section 132(3) of the Act for passing a restraint order can be only resorted to if there is any practical difficulty in seizing the item which is liable to be seized. If all actions of the search were completed and nothing was left to be done by the search party, then the action of the authorized officer under Section 132(3) would be illegal and consequently any panchnama prepared on the extended date of search, after lifting the restraint, would be of no consequence, for the purposes of computation of limitation under Section 153B of the Act. In particular, the IT AT referred to the decision of this Court in V.L.S. Finance v Ltd. Vs. CIT 289 ITR 286 (Del). 8. The ITAT correctly concluded that where there are various authorisations issued and various panchnama prepared, it would be the last panchnama prepared in respect of the last authorisation which would be relevant for computing the limitation period . 9. In the present case, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in CIT v. Kabul Chawla (2015) 234 Taxman 300, which holds that in the absence of any incriminating material found in the course of search the framing of assessment under Section 153A or 153 C of the Act, as the case may be, would not be valid. 13. It may be mentioned here that in the case of JH Finvest Pvt. Ltd., the Revenue has not even urged a question regarding the absence of any incriminating material having been found against the said Assessee invalidating the assessment. 14. No substantial question of law arises from the impugned order of the ITAT in these cases. The appeals are accordingly dismissed." 9. Keeping in view of the facts and circumstances of the case as explained above, we find that penalty in dispute will not survive. Accordingly, we set aside the orders of the authorities below and delete the penalty in dispute by allowing the Appeal No. 832/Del/2014 (AY 2003-04) filed by the Assessee. 10. Following the consistent view, as taken in ITA No. 832/Del/.2014 (AY 2003-04), the ITA No. 833/Del/2014 (AY 2007-08) also stand allowed. 11. In the result, both the appeals filed by the Assessee stand allowed. Order pronounced in the Open Court on 07/10/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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