9911796707
TMI Blog2021 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee company and also at different places of the group concern including blank lockers and the person related to the assessee company in the business activities. Accordingly, notices u/s. 153A was issued for six years on 06.05.2013 requiring the assessee to furnish the return of income u/s. 153A. In response the assessee has filed its return of income on 17.07.2013. The ld. Assessing Officer without even referring to any seized document or any incriminating material found during the course of search, has proceeded to make the assessment on the basis of perusal of the audited balance sheet as discussed by him in paragraph 3 of the assessment order. He has noted that on perusal of the audited balance sheet of the assessee as on 31.03.2009, it is seen that the assessee has subscribed share capital which has increased to ₹ 3,58,10,060/- from ₹ 27177120/-. During the year under consideration, the assessee has issued 863294/- equity shares of the value of ₹ 10/- at a premium of ₹ 1790/- per share. Thus, the assessee company has shown receipt of ₹ 154,52,96,260/- as security premium. During the course of assessment proceedings, the assessee company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s. 143(2) of the Act could have been served upon the assessee till 30/09/2010 & 30.09.2011 for A Y 2009-10 & 2010-11 respectively as per the law prevailing on the said date, but no such notice was given. Since no assessment was made thereafter u/s. 143(3)/144 of the Act within the time allowed for the same, the assessment thus completed u/s. 143(1) and had became final assessment before the date of search. On taking up proceedings u/s. 153A, the assessments for A.Y. 2009-10 & A.Y. 2010-11 did not abate as per 2nd proviso to Section 153A. Legally speaking, no addition could be made, which was not based on incriminating material seized during search in the case of a concluded assessment. Thus, from the order itself and from records, it is very clear that on the date of search is 22/11/2011 both the assessment years are unabated as per second proviso to section 153A of the Act. 9. During the course of search, admittedly no incriminating documents relating to addition made was found. Therefore, no addition could have been made in the assessment order passed U/s 153A of the Act. Ld. AO has made addition U/s 68 on account of issue of share capital of ₹ 73.47 crore and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record and duly disclosed in the return of income which had attained finality. Ld. counsel has already explained that none of the additions are based on incriminating material/document which has not been rebutted by the ld. CIT-DR also, therefore, these additions needs to be seen whether they can be roped in, e within the scope of section 153A in the light of the judicial principles laid down by the Hon'ble Jurisdictional High Court and Hon'ble Apex Court. Even the ld. CIT(A) has admitted that there was no incriminating material albeit has heavily relied upon the Hon'ble Delhi High Court judgment in the case of Shri Anil Bhatia (supra). 13. In our opinion, Ld. CIT(A) has wrongly interpreted the decision of Hon'ble Delhi High Court in the case of Shri Anil Bhatia (supra). In this case in para 23 the Hon'ble Court itself have clarified this aspect in the following manner: "23. 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 153A can be invoked even in such a situation. That question is therefore left open." T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out there being an incriminating material qua that assessment year which would justify such an addition...the court is unable to accept the submissions of revenue that there was incriminating material other than what has been discussed in the orders of the assessing officer, commissioner (appeals) and the tribunal for the assessment years in question...[paras 38 & 39] It was also noted by the assessing officer - and this has not been disputed by the assessee - that a sum of ₹ 1.10 crores was offered by the assessee as income in the year of search, although it was repeatedly urged by that the documents seized and furnished by pertained to the assessment years other than the year of search, clearly, no such question was put to it should have been easy for the investigating officer to ask 'pa' of the particular assessment year to which the document related to, however, that was not done, therefore, only the statement makes a disclosure about the earlier undisclosed income and stating that the offer of such income was being made "to buy peace of mind", therefore, the statement recorded under section 133A can hardly be said to be incriminating material. [para 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at least six years of assessments earlier to the year of search. It is not to be exercised lightly, it is only if during the course of search under section 132 incriminating material justifying the re-opening of the assessments for six previous years is found that the invocation of section 153a qua each of the assessment years would be justified. [paras 56 & 57] The court is of the view that the tribunal was justified in holding that the invocation of section 153a by the revenue for the assessment years 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those assessment years. [para 71]" 17. Further, Hon'ble Supreme Court in case of CIT Vs. Sinhgad Technical Education Society (397 ITR 344) (SC) wherein exactly similar legal/technical ground was taken for the first time before the ITAT. Further, the Hon'ble Apex Court upheld the order of the Tribunal that addition cannot be made for the assessment years for which there are no incriminating documents found during the course of search in the assessments framed u/s. 153C. The Hon'ble Court upheld the order of the Tribunal in the following manner:- 16) In these appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Years 2000-01 and 2001-02 was even time barred. 19) We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years 2000-01 and 2001-02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy. 18. The sequitur of the judgment which can be culled out is that, seized incriminating material has to pertain to the assessment year in question and have co-relation, document-wise, with the assessment year. 19. Recently, Hon'ble Delhi High Court in case of PCIT Vs. Allied Perfumes P Ltd. (2021) 431 ITR 237 (Delhi) held as under:- "13. Upon reading of the aforesaid extracted portion of the impugned order, it is clearly discernable that the ITAT has given a finding of fact that the assessments make no reference to the seized material or any other material for the years under consideration, that was found during the course of search, in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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