9911796707
TMI Blog2021 (7) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... ious illnesses and had also been fractured in body of right scapula and his elder brother Mr. Anand Tiwari of the suffering from a chronic liver disease for the past 5 -6 years. On account of his severe illness he has been admitted/ treated in various hospitals in India as well as abroad on innumerable occasions and has been bed- ridden for most of the time during these years. (b) That Mr. Abhieshek Tewari, appellant was himself suffering from various illnesses and had also been incarcerated during the relevant time. Due to financial crisis, the company had started making defaults in paying installments to various banks and also in fulfilling other financial obligation. Consequently, the banks had filed false & frivolous complaints with the Central Bureau of Investigation (C.B. I.). The C.B. I. officials had started making inquiries not only from the directors, but also from the family/staff members etc. The C.B. I. officials had also started calling not only the directors, but also the staff members, to their office. The C.B. I. officials had started making visits to the office of the company. Mr. P. K. Tiwari was incarcerated in connection with the CBI cases from July, 2012 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of documents as explained above, the company, inspite of taking many adjournments, was not able to defend its case before CIT (Appeals). (k) That no reasonable opportunity was provided to the Company to present its case and to justify the grounds for quashing the impugned order of the learned A.O. (l) That the impugned order, confirming the order of A.O., was passed by the CIT (Appeals) without considering the grounds provided by the appellant or the documents or evidences to be provided on part of the Company and the order was passed ex parte. (m) That the appellant has valid grounds and will be able to establish that the impugned order passed by the learned A.O. was bad in law and was based only on presumptions, if a reasonable opportunity is provided to the appellant. (n) That the grounds provided by the appellant in the appeal before the CIT (Appeals) which were not considered by it before confirming the impugned order of learned A.O. are provided below. 2. That the assessment order dated 18.03. 2013, passed by the Ld. A.O. U/ s 144 r. w.s. 153A, is bad in law. 3. That the assessment order dated 18.03.2013 passed u/ s 144 r.w. s. 153A, deserves to be quashed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of search. In the impugned proceedings, we find that the additions made by the Assessing Officer are not based on any material found and seized during the course of search and seizure action. The fact of which has not been disputed by the revenue. 6. Before the Ld. CIT (A), the assessee has challenged that the said additions, however, the ld. CIT (A) confirmed the action of the Assessing Officer as the hearings have been defaulted by the assessee. 7. Before us, none appeared on behalf of the assessee and the matter is being adjudicated on hearing the arguments of ld. DR and based on the record available before us. On perusal of the record, we find that it is an admitted fact that no addition has been made in any of the years which was based on incriminating material or evidence was found during the course of search. 8. Thus, no addition can be twined in the present proceedings u/ s 153A. We have examined the findings of the AO and Ld. CIT(A) and find that it is an undisputable fact that the addition made by the AO is not based on seized material / documents found during the course of search. In such a situation, addition is beyond the scope of section 153A and we rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs " in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). As far as Anil Kumar Bhatia (supra) was concerned, the Court in paragraph 24 of that decision noted that "we are not concerned with a case where no incriminating material was found during the search conducted under Section 132 of the Act. We therefore express no opinion as to whether Section I53 A can be invoked even under such situation". That question was, therefore, left open. 15. As far as case law Chetan Das Lachman Das is concerned, in para 11of the decision it was observed: "11. Section 153A (1) (b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or Information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section ..... 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