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TMI Blog2021 (9) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... te of search, there were no assessments pending or were abated due to search. In CIT vs. Kabul Chawla, [ 2015 (9) TMI 80 - DELHI HIGH COURT] has held that the assessment cannot be arbitrary or made without any relevance or nexus with the seized material and an assessment has to be made under this section only on the basis of seized material - completed assessments can be interfered with by the AO while making the assessment u/s 153A only on the basis of some incriminating material unearthed during the course of search or the documents requisitioned or undisclosed income/property discovered in the course of search. - Decided in favour of assessee. - ITA Nos. 6367 & 6368/Del/2016 C.O. No.71 & 72/Del/2020 - - - Dated:- 9-9-2021 - SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessments were complete by orders dated 31.03.2016 for both the years at an income of ₹ 1,67,50,770/- for the assessment year 2008-09 and ₹ 8,47,12,580/- for the assessment year 2010-11 by making addition of ₹ 1.65 crores for the assessment year 2008-09 and ₹ 8.41 crores for the assessment year 2010-11 on account of unexplained credits in the books of account u/s. 68 of the Act. 4. Aggrieved by such additions, the assessee preferred appeals before the ld. CIT(A), who by way of the impugned orders deleted the additions holding that the addition was made by relying upon the statement of Mr. Brijesh Bhagat recorded on 16.03.2016 without having any proof or corroborative evidence to establish the transaction to be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable. Learned CIT(A) observed that in view of the fact that the relief was given to the assessee on merits, deciding this question of law is academic in nature and therefore, he left it open. 6. Challenging the deletion of the addition, Revenue preferred ITA No. 6367 and 6368/Del/2016 for the assessment years 2008-09 and 2010-11 respectively, whereas the assessee, aggrieved by the findings of the ld. CIT(A) that the validity of reopening proceedings in the absence of any incriminating material in respect of a concluded assessment need not be decided, the assessee filed cross objections No. 71 72/Del/2020 for both the years respectively. 7. It is argued by the ld. DR that one Mr. Brijesh Bhagat, director of the assessee company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that absolutely there was nothing found during the search with regard to the alleged bogus investments by the search team. He, therefore, prayed that the cross objections made be allowed by returning a finding that in view of the decision of jurisdictional High Court in the case of Kabul Chawla (supra), the notice u/s. 153A of the Act and consequential assessment proceedings are bad under law. 9. We have gone through the record in the light of submissions made on either side in the appeal and the cross objections. It remains an undisputed fact that the ld. Assessing Officer placed heavy reliance on the statement of Mr. Brijesh Bhagat recorded on 16.03.2016 despite the fact that the said person retracted the same by way of an affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins an admitted fact that the returns of income for the assessment years 2008-09 and 2010-11 were filed on 27.09.2008 and 25.09.2010 respectively whereas search operation took place on 07.03.2014. Admittedly, the returns of income for both the assessment years were processed u/s. 143(1) of the Act. Long prior to the search, the time period permissible for issuance of notice u/s. 143(2) by proviso thereunder expires. It leaves no doubt that as on the date of search, there were no assessments pending or were abated due to search. In CIT vs. Kabul Chawla, Hon ble jurisdictional High Court has held that the assessment cannot be arbitrary or made without any relevance or nexus with the seized material and an assessment has to be made under this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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