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TMI Blog2021 (3) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... t of search, but, the same is based on post search enquiries made by the AO. It is also pertinent to mention that the AO while making the addition has relied on the enquiries conducted for examining investments made in the case of M/s Vikas Telecom Ltd and in M/s DD Resorts Pvt. Ltd. since the companies who have made investment in the assessee company have also made investments in the above two companies - no seized document was referred to by the AO in the body of the assessment order. Be that as it may, the addition in the instant case is not based on any incriminating material and based on post search enquiries which is evident from the assessment orders as well as the orders of CIT(A) for both the years. Under these circumstances, we have to see whether such addition can be sustained in unabated assessment completed u/s 153A of the Act. As in the case of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] has held that in the absence of any incriminating material found during the course of search, no addition can be made u/s 153A of the Act in case of a completed assessment. Appeals filed by the assessee are allowed. - ITA Nos.1337 And 1338/Del/2014 - - - Dated:- 17-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. The issue of introduction of share capital through Kolkata based companies was referred to the Investigation Wing, Kolkata in the case of M/s Vikas Telecom Ltd. and M/s DD Resorts Pvt. Ltd. in which the share application money was received from Kolkata based companies and extensive enquiries were made. The AO noted that as per the gist of investigation conducted at Kolkata about the above mentioned companies, it was found that most of the concerns did not exist in the given addresses. Efforts were also made to serve the summons u/s 131 of the Act through Inspectors, but, most of these companies could not be located. Therefore, the genuineness and the identities of these concerns are doubtful. He further noted that wherever the authorized representatives of these concerns appeared and confirmed the investments, the credit worthiness of the said concerns could not be proved as only little profits were being made by these companies. In view of the above and in view of the inability of the assessee to substantiate with evidence to his satisfaction regarding the identity and credit worthiness of the share applicants and the genuineness of the transactions, the AO, relying on vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no new facts are required to be investigated. Relying on the decisions of the Hon ble Supreme Court in the case of NTPC Ltd. vs. CIT, 229 ITR 383, Jute Corporation of India Ltd. vs. CIT, reported in 187 ITR 688 and various other decisions, he submitted that the additional ground raised by the assessee should be admitted. 9. The ld. DR, on the other hand, heavily opposed the admission of the additional ground so raised by the assessee. She submitted that this additional ground has been raised by the assessee after a lapse of more than five years from finalization of assessment and, therefore, the same should not be admitted. She submitted that although this issue was raised before the CIT(A) as a ground, however, the same was not pursued by the assessee before the CIT(A), therefore, the additional ground raised by the assessee now should not be admitted. 10. We have considered the rival arguments made by both the sides on the issue of admission of additional ground. Since the additional ground raised by the assessee is purely a legal ground, therefore, the same is admitted for adjudication. 11. The ld. Counsel for the assessee submitted that for A.Y. 2003-04 the assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO in the case of M/s Vikas Telecom Ltd., using similar language. Referring to the order of the AO as well as the order of the CIT(A) in the case of Vikas Telecom Ltd., he drew the attention of the Bench to the order of the CIT(A) where he has asked the AO to point out the seized material which was used for making additions. In the remand report, which has been quoted by the CIT(A) at para 3.5 of his order, the AO has accepted that the additions were not based on any incriminating material seized. Accordingly, the ld.CIT(A) deleted the additions on the ground that such additions were made without any seized documents and, therefore, cannot be sustained. He submitted that the Revenue challenged the order of the CIT(A) before the Tribunal and the Tribunal, vide ITA No.6683/Del/2013, order dated 2nd July, 2018, dismissed the appeal filed by the Revenue by following the decision of the Delhi High Court in the case of CIT vs. Kabul Chawla, 380 ITR 573 (Del). Relying on various other decisions, he submitted that since the addition in the instant case is not based on any incriminating material found during the course of search, therefore, the order of the CIT(A) sustaining the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made use of in the assessment. However, extensive enquiries have been made during assessment proceedings regarding the accommodation entries. Thus, in that case also no seized document was referred to by the AO in the body of the assessment order. Be that as it may, the addition in the instant case is not based on any incriminating material and based on post search enquiries which is evident from the assessment orders as well as the orders of CIT(A) for both the years. Under these circumstances, we have to see whether such addition can be sustained in unabated assessment completed u/s 153A of the Act. 15.1 The Hon ble Delhi High Court in the case of Kabul Chawla (supra) has held that in the absence of any incriminating material found during the course of search, no addition can be made u/s 153A of the Act in case of a completed assessment. Similar view has been taken by the jurisdictional High Court in the case of PCIT vs. Meeta Gutgutia, reported in 395 ITR 526, PCIT vs. Ms Lata Jain reported in 384 ITR 543, PCIT vs. Best Infrastructure reported in 392 ITR 82, PCIT vs. Dharampal Premchand Ltd., reported in 2017-TIOL-1649-HC-DEL, in the case of PCIT vs. Subhash Khattar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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