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TMI Blog2021 (9) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate debited by the assessee in its books of account. There is no reference of any incriminating material found during the course of search in case of 3rd party. The assessment is also passed by issuance of notice u/s 153A of the Act and not u/s 153C - there is no search in case of the assessee but there was only a survey u/s 133A of the Act. There is no reference of any incriminating material by the ld AO in the whole of the assessment order. The ld DR also could not show us whether any incriminating material was found during the course of search. Admittedly the addition was made only on the basis of survey report.- Decided in favour of assessee. - ITA No. 5536 And 5537/Del/2017 - - - Dated:- 16-9-2021 - Shri Kul Bharat, Judicial Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .CIT(A) has erred in quashing the order u/s 143(3) r.w.s. 153A for assessment year 2010-11. 3. On the facts and circumstances of the case, the Id.CIT(A) has erred in relying on the order of Hon'ble Delhi High Court in case of Sh. Kabul Chawla as Section 153A does not restrict the assessment of incriminating documents. 4. Brief facts of the case shows that the a search was conducted on 29.12.2015 on Sanjay Duggal, Rajneesh Talwar and others and simultaneously, survey u/s 133A of the Act was also conducted on various premises of the assessee. Based on the survey report the ld AO noted that there is a discrepancy in rebate and discount in the books of account of the assessee and in the ledger account of the assessee in the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4.2 as under:- 4.2 In ground no. 02 the appellant has challenged the assessment made u/s 153A of the Act on the ground that the reassessments in all the above two assessment years were completed and not abated and therefore reassessments u/s 153A of the Act could not have been made since no incriminating document/information belonging to the appellant and related to the issues considered for assessment/addition was found from the premises of the searched person at the time of search u/s 132 of the Act. 4.2.2 The fact of the case are that a search seizure operation was conducted in the Jaiswa1 Group cases including the appellant company on 06.05.2014. The return of income of the appellant was filed originally u/s 139(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fa India, M/s Alpine India and M/s KCC Enterprises) to the bank accounts of the Duggal and Talwar family members from where cash had been withdrawn by them. He has further observed that the receipts in bank accounts of the above three concerns were on account of sale proceeds of liquor to the (major) distributors of Haryana while the account of these parties in the books of the appellant company were balanced through journal entries by way of transfer of balance from the account of other (minor) distributors but neither has the AO brought out in the assessment order as to whose accounts had been adjusted, nor the details of the transactions involved and how did the respective transaction impact the accounts, and profitability/income, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial relevant to the additions made by the AO. 4.2.3 Thus, from the reassessment orders it is observed that there is no reference of any seized material, least incriminating documents, in the reassessment order, and the additions made as per (ii) (iii) above in the order u/s 153A of the Act were already disclosed in the original return of income, and the addition is not based on any seized material, least incriminating documents. In CIT (C)-lll vs. Kabul Chawla (Delhi) [2015] 61 taxmann.com 412 (Delhi), 234 Taxman 300 the Hon ble jurisdictional High Court of Delhi have held that an assessment has to be made under this section only on the basis of seized material and in absence of any incriminating material, the completed assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en submission, it is held that the AO was not within the jurisdiction bestowed on him by law to make the impugned additions as per (ii) (iii) of para-4.2.2 above in the assessment u/s 153A of the Act, and therefore the impugned additions made in the assessment order cannot be sustained. The re-assessment orders under reference for both the assessment years are accordingly quashed. 7. We also found that for Assessment Year 2009-10 assessment has already been made u/s 143(3) of the Act on 02.09.2011. Search took place on the other party on 06.05.2014 and survey u/s 133A of the Act took place on the assessee s premises on that date. The ld AO in para No. 5.1 referred to the show cause notice issued on 23.03.2016 has stated that on per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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