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TMI Blog2022 (8) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A of the Act, firstly, the assessment proceedings should be pending as of the date of the search and secondly, there should be incriminating material for making the addition, are not fulfilled. - Decided in favour of assessee. - ITA No. 6121/MUM/2018 And ITA No. 6122/MUM/2018 - - - Dated:- 12-8-2022 - Shri Om Prakash Kant (Accountant Member) And Shri Sandeep Singh Karhail (Judicial Member) For the Assessee : Mr. Rushabh Mehta, AR For the Revenue : Mr. Manoj Kumar, CIT-DR ORDER PER OM PRAKASH KANT, AM These two appeals by the assessee are directed against two separate orders both dated 21/08/2018, passed by the Ld. Commissioner of Income-tax (Appeals)-50, Mumbai [in short the Ld. CIT(A) ] for assessment year 2008-09 and 2009-10 respectively. As common grounds have been raised in these appeals, therefore same were heard together and disposed off by way of this consolidated order for convenience. ITA No. 6121/MUM/2018 Assessment Year: 2008-09 2. Firstly, we take up the appeal for assessment year 2008-09. The grounds of the appeal are reproduced as under: 1. On facts and circumstances of the case, the Ld. CIT(A)-50, Mumbai erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, ground No. 1 to 4 of the appeal are dismissed as infructuous. 5.1 Regarding ground No. 5 to 7 the Ld. counsel submitted that additions made are not based on any incriminating material found or seized during the course of the search. He submitted that in view of the decision of the Hon ble Delhi High Court in the case of CIT v. Kabul Chawala (2016) 380 ITR 573 (Delhi), if no assessment proceedings are pending as on the date of the search than no addition can be made without basis of incriminating material. The Ld. counsel submitted that time limit for issuing notice under section 143(2) of the Act had already expired prior to the date of the search and even no notice under section 148 of the Act was issued before initiation of the search, therefore, it can be concluded that return of income of the assessee have been accepted and attained finality. Hence, no assessment or reassessment was pending as on the date of the initiation of search. According to him both the conditions of the decision of the Hon ble Delhi High Court in the case of Kabul Chawala (supra) stands fulfilled and thus no addition can be made without link of any incriminating material found during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove that the appellant has indulged in taking giving cash unaccounted loans / advances. Further, even accommodation entries of loans have been taken by the Appellant from the bogus concerns of Gautam Bhanwarlal Jain Group. During the course of the search and survey operation on the Appellant, substantial incriminating material has been found, relating to accommodation entries taken by the Appellant, which has already been discussed in great details in the earlier part of the appellate order. The same is not repeated here for the sake of brevity, but it is relied upon to prove that there is incriminating material on record to hold that the appellant has taken accommodation entries by paying entry charges. 7.2 We find that there is no specific reference of any incriminating material for sustaining the addition in dispute of ₹32,50,000/- which was made by the Assessing Officer under section 68 of the Act. 7.3 In view of above, both the conditions of the decision of the Hon ble Delhi High Court (supra) in the case of Kabul Chawal (supra) that for making addition under section 153A of the Act, firstly, the assessment proceedings should be pending as of the date of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Kabul Chawala (supra), the addition need to be deleted. The Ld. DR on the other hand relied on the orders of the lower authorities. 11. We find that assessment under section 143(3) of the Act for the year under consideration was completed by the Assessing Officer on 15/12/2011. This fact has been mentioned by the Assessing Officer in para 5 of the impugned assessment order. Thus there was no pendency of the assessment as on date of the search. The addition under section 68 of ₹38,75,000/- has been made by the Assessing Officer observing as under: 6. The assessee has claimed following loans taken during the year under consideration other than those from family members or close relatives: Sr. No. Name of the Party Amount (₹) 1. Rajesh Jain 1,00,000/- 2. Swami Samarth Medical 35,00,000/- 3. Chandadevi Ranmal 1,00,000/- 4. Sukhidevi Ranmal 1,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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