9911796707
TMI Blog2023 (3) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ree days of the date of search. Even otherwise on legal grounds also since no incriminating material has been referred to by ld. AO which has a direct nexus with the assessee nor is there any material which could throw any light that the assessee has parked its unaccounted funds with the Siddha Group as loans and advances/booking money of the Siddha Projects the proceedings carried out u/s 153A of the Act deserves to be quashed since for AY 2014-15 AY 2015-16 the original returns were duly submitted on 11.06.2014 21.08.2015 and the time limit for issuance of notice u/s 143(2) of the Act stood expired and no proceedings u/s 143(3)/147 of the Act were pending on the date of search, therefore, both the assessment years were completed assessment years which cannot be abated and for such completed assessment year, no additions can be made unless until supported by incriminating material found during the course of search belonging/pertaining to the assessee - Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 153A of the Act was issued and in response, the assessee filed the return for the year under appeal i.e. AY 2014-15 on 27.11.2018 declaring the same income i.e. 2,64,100/- as declared in the original return of income. This was followed by serving of notices u/s 143(2) & 142(1) of the Act. During the course of search, documents bearing ID-PB/1, PB/2 & PB/3 were found and seized which contain the details of different project of details Group. Ld. AO observed that the assessee is a partner in many projects of Siddha Group. In the assessment order ld. AO referred to various loan transactions taken by Siddha Infradev LLP and other concerns of Siddha Group and has also referred to booking money received by Siddha Group. Ld. AO also observed that though the assessee is one of the partners in many Siddha Projects but in his books, no amounts were shown as investment. 5. It was stated by the assessee before ld. AO that unsecured loan/booking money was given through companies which have separate legal identity and the unsecured loan/booking money invested in Siddha Group are duly recorded in the books of accounts of respective companies and their sources were duly explained. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration. Penalty proceeding u/s 271(1)(c) of the I T Act initiated for concealment of income." 6. Accordingly, against the returned of Rs. 2,64,100/-, income for AY 2014-15 assessed at Rs. 7,32,64,100/- and for AY 2015-16 against the returned income of Rs. 2,17,875/- income assessed at Rs. 13,62,81,160/-. 7. Aggrieved, the assessee preferred appeal before ld. CIT(A). During the course of appellate proceedings, the assessee filed complete details stating that no incriminating material was found indicating any undisclosed income in the name of the assessee and all the other documents which ld. AO has referred in the assessment order only provides the details of unsecured loan and booking money taken by Siddha Group in companies for various projects. Ld. CIT(A) was satisfied with this contention and came to a conclusion that all the alleged loans taken by Siddha Group are duly disclosed in the regular books of accounts of the related companies which are separate legal entities and are assessed to tax and the fate of such unsecured loans/booking money can be considered only in the hands of the respective companies receiving such investments/booking money. Ld. CIT(A) also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of notice u/s 143(2) was September 2016. No proceedings u/s 143(3) or 147 of the Income Tax Act was pending on the date of search being 12.09.2017. Therefore, since no proceedings were pending and the assessment was already completed this was an unabated assessment. In view of judicial pronouncements relied upon in the written submissions filed in paper book no addition or disallowance can be mad u/s 153A other than based upon any incriminating materials found during the search and since the addition is purely on suspicion & surmises without reference to any incriminating materials, the addition made by AO is bad in law. Points on merits 1) The assessee produced documents to substantiate that loan I booking advance to Siddha Group was granted by independent entities from their own funds reflected in their Balance Sheets and no part of such loan or booking advance was funded by the assessee or any entity acting on behalf of the assessee. Thus, the allegation of AO in the assessment order that assessee had advanced loans, booking advances through his undisclosed sources was merely based on suspicion, surmises and conjecture, and addition made u/s 69 was not justified. 2) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked in the hands of assessee. The additions based on surmises and conjectures must be deleted." 10. We have heard rival contentions and perused the records placed before us. The Revenue is aggrieved with the finding of ld. CIT(A) deleting the additions made by ld. AO u/s 69 of the Act towards undisclosed investment in various group companies of Siddha Group. We observe that the assessee is a practicing-chartered accountant and is partner of M/s. P. Beria & Associate. He was subjected to search in the course of proceedings carried out u/s 132 of the Act dated 12.09.2017 in GPT Group of cases. During the course of search, certain documents were found in the possession of the assessee which contained the details of the unsecured loan taken by Siddha Group of companies which mainly included Siddha Real Estate Developer, Siddha Infradev LLP, Siddha Happyville LLP, Siddha Waterfront LLP, SREDPL-Lakeville etc. In all these details name of the assessee is not appearing and only the transactions of unsecured loan and booking money received by Siddha Group are appearing. Ld. AO mainly harped upon the statement given by the assessee during the course of search that he is engaged in the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of any incriminating document found in the course of Search and Seizure proceedings conducted u/s 132 of the Income Tax Act, 1961. The brief facts of this case are that the appellant, a practising Chartered Accountant, had filed his return of income for the impugned assessment year on 11.06.2014 as per the order of assessment dated 30.12.2019. Thereafter, a search and seizure operation was conducted on 12-09-2017 under section 132 of the I.T Act, 1961 in the GPT group of cases, the appellant along with his family members was also covered in the same search, on the same day, by execution of search warrant, details being summarised as under: Sl.No Address of Promise Date of operation Covered Under Details of seized/ impounded material 1. Rameshwar Apartment Flat- No-3D, 19A, Sarat Bose Road, Kolkata- 700020 12-09-2017 132 PB/1, PB/2, PB/3 2. Unit No-202, 2nd floor, 22 Sarat Bose Road, Kolkata - 700020 12-09-2017 133A BA/1 to BA/3, BA/HD/1 and BA/Mobile/1 The other family members who were subjected to Search and seizure were (i) Sri Purushottam Beria (Father) (ii) Smt. Pushpa Beria (Mother) (iii) Smt. Julie Beria (Wife) (iv) Sri Prawesh Beria (Brother) (v) Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had not already been duly disclosed by the appellant in his books of account. In fact the impugned transactions were duly recorded in the books of the transacting entities also and nothing extra was fund during search. Proceeding further, in this matter, it is also recorded by the AO that in the course of assessment proceedings, he received some information from the Assessing Officer of Siddha Group that large amount of unsecured loan and Booking advance money was received by the SIDDHA GROUP from various companies details of which have been mentioned in page nos 3 to 5 of the Assessment order, however that the that the information received was already part of and contained in the seized documents PB-1 to PB-3 as already explained in the above paragraph. In paragraph 7.1 of his order, the AO has further recorded that the documents seized from the premises of the appellant, bearing ID No. PB-1, PB-2 and PB-3 had also mentioned details of various projects of the Siddha group. It was based upon these documents that the AO proceeded to make enquires from the appellant about investments that had been made by the appellant's group companies into the various projects of the Siddha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 153C read with section 153A. In the case before us, the asses assessing sing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances." 2. Calcutta High Court in the case of PCIT VS. Salasar Stock Broking Ltd. (ITAT No. 264 of 2016 dated 24.08.2016 expressed its decision as under:- "In this case, the Honourable High Court observed that the Ld. ITAT, Kolkata was of the opinion that the assessing officer had no jurisdiction u/s 153A of the I.T. Act to reopen the concluded cases when the search & seizure did not disclose any incriminating material. In taking the aforesaid view, the Ld. ITAT relied upon the judgments of Delhi High Court in the case of CIT(A) Vs. Kabul Chawla in ITA No. 707/2014 dated 28.08.2014 28.08.2014. The Court also observed that more or less an identical view has been taken by this Bench in ITA No. 661/2008 in the case of CIT Vs. Veerprabhu Marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which required to be made if the return was selected for regular assessment u/s. 143(3) or u/s. 147 of the I.T. Act could not be made u/s. 153A of the I. T. Act? While disposing appeal the Hon'ble High Court held: "We are in agreement with the views expressed by the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances. We find no infirmity in the aforesaid act of the learned Tribunal. The appeal is, therefore, dismissed." 4. In the case of Pr. CIT vs. Salasar Stock Broking Ltd ITAT No. 264 of 2016 dated 24/08/2016, Hon'ble Calcutta High Court took the same view and held: "Subject matter of challenge is a judgment and order dated 18th December, 2015 by which the learned Tribunal dismissed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action Note and the material which was disclosed therein was culled out and it showed that the same belongs to Assessment Year 2004-05 or thereafter. After taking note of the material in para 9 of the order, the position that emerges therefrom is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred." The Hon'ble Mumbai ITAT in the case of All Cargo Global Logistics Ltd. vs. DCIT [2012] 23 taxmann.com 103 (Mum) (SB), has categorically held that the assessment u/s 153A has to be strictly restricted only to the incriminating material found during search. The view was confirmed by the Hon'ble Bombay High Court reported in 374 ITR 675 (Bom) while adjudicating the case along with the appeal of CIT vs. Continental Warehousing Corporation. The questions before the Hon'ble High Court were as follows: "(i) Whether on the facts and in the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined as follows: "(a) In assessments that are abated, the AO retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A for which assessments shall be made for each of the six assessment years separately; (b) In other cases, in addition to the income that has already been assessed, the assessment u/s 153A will be made on the basis of incriminating material, which in the context of relevant provisions means- (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search" 5. In the case of Kabul Chawla (2016) 380 ITR 573, Hon'ble Delhi High Court had summarized the legal position in respect of proceedings u/s Section 153A of the IT Act in paragraph 37 and conclusion of the case in paragraph 38, which are reproduced below:- "Summary of the legal position. 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: - i. Once a search takes place under Section 132 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 38. The present appeals concern AYs 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed." Conclusion 6. Pr. CIT v. Meeta Gutgutia Prop. Ferns 'N' Petals [2017] 82 taxmann.com 287/248 Taxman 384/395 ITR 526 (Delhi), wherein the Hon'ble Delhi High Court has held as under: "56. Section 153A of the Act is titled "Assessment in case of search or requisition". It is connected to section 132 which deals with 'search and seizure'. Both these provisions, therefore, have to be read together. Section 153A is indeed an extremely potent power which enables the Revenue to re- open 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 reopening of the assessments for six previous years is found that the invocation of section 153A qua each of the AYs would be justified." It is also pertinent to mention here that the SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )." The Supreme Court has dismissed the special leave petition filed by the Department against this judgment [2016] 380 ITR 64(St.) In the present facts and circumstances, therefore I find that the factual matrix of the instant appeal necessitates the applicability of the afore-discussed proposition of law in this case. It is clear from the above discussions that the only addition that could have been made in the instant case has to emanate from incriminating material found during search. The only matter that needs to be examined is whether there was any incriminating material at all that necessitated and/or led to the additions challenged in this appeal. The above discussion has clearly brought to the fore the fact that even though there indeed was some seized material emanating from the search, it had no bearing upon the financials of the appellant; it is equally true that this material had been shown to the appellant and whose claim that all the material so-seized had already been included in the books of account of the appellant as well as of the concerns mentioned therein was accepted by the AO. It has been noted earlier in this order that the AO has not opposed this pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived by SIDDHA group details of which are embossed at pages 3 to 5 of the assessment order. The AO observed that tie unsecured loans were initially advanced to SIDDHA group through appellant's various concern as unsecured loans. These loans were subsequently refunded and again the money was given to other concerns of SIDDHA group as booking advance by appellant's concerns. Based on this factual finding the AO issued a Show cause notice dated 14.12.2019 to the appellant seeking appellant's explanation as to why these unsecured loans and booking advances given by the appellant's concern to SIDDHA group companies should not treated as appellant's undisclosed investments. In response to the show cause notice of the AO, the appellant vide its reply dated 19.12.19 explained that unsecured loans/booking money has been given through separate companies who have their own legal identity and they have their own books of accounts and are separately assessed to income tax. It was also explained that the unsecured loans/booking advances invested in SIDDHA group were duly recorded in the respective books of accounts of respective companies and their source of funds were also explained and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these companies. It is also pointed out that all the investments by way of unsecured loans/booking advances have been treated as genuine both in the hands of all the entities. The AO did not even make any enquiries from the AO's of the respective companies to verify the investments. The entire addition is based on allegations which are far from truth and hence do not have legs to stand upon. It is also pointed out that the AO did not share the information received by him from the AO of the SIDDHA Group for giving any rebuttal by the appellant. The AO has failed to bring any evidence on record to prove that the appellant had any earnings outside his books of accounts in cash which has been brought in the books through various companies for making investments in SIDDHA group. The AO has completely ignored the explanations filed by the appellant in course of assessment proceedings. Thus it is re iterated that the addition has to be made on the basis of hard facts or on corroborative evidences and not just on pure suspicion & surmises. Reliance is placed upon the decision of Hon'ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd vs CIT reported in 26 ITR 775 and the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loans/advances, these loans/advances have been accepted. Assessment orders of these concerns have been filed during appeal. The only reason given by the AO for adding these advances/loans in the hands of the appellant is that the appellant was a partner in several projects of Siddha group and this would necessitate some investment being made by the appellant into this group. Therefore, as per the AO, it was at the behest of the appellant that these investments were made by concerns controlled by him or his family members, as a means of making investment in Siddha Group in the form, perhaps, of his capital share since he was a partner in Siddha Group. There are various defects in the reasoning given by the AO in this regard. The first is that he has not established that the appellant indeed was a partner in some concerns of the Siddha Group. The AO has not specified or brought anything on record to show into which projects of the Siddha group or which concerns of the Siddha group the appellant was alleged to be a partner. If indeed such a partnership did exist, then the terms of such a partnership were not brought on record. The AO has not specified whether the appellant was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts having himself examined the seized material in his possession. After accepting these facts, it is not clear as to how the AO can go ahead with assessing these advances of money in the hands of the present appellant. The procedures followed during any assessment or related proceedings clearly stipulate that the person who is furthering or asserting a point of fact has to adduce concrete evidence and/or cogent arguments to establish his propositions. The appellant has discharged this onus sufficiently before the AO. The AO, in turn, has accepted the fact that the said advances of money to Siddha Group were made by concerns controlled by him. He has explained that this has been duly declared in the books of Siddha as well as of the concerns, with the sources also having been explained. If the AO was not satisfied with these explanations, then the onus lay upon him to bring on record the objections, both, legal and/or factual for not agreeing with the appellant. This has not been done by the AO. The AO has also not taken the next step - that of establishing his own proposition the burden of proving which lay upon the AO. This proposition was that the moneys so advanced by indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant and the partner of a firm duly registered with the Institute of Chartered Accountants of India. The only evidence which ld. AO had was the statement given by the assessee during the course of search which has been retracted within three days himself and therefore, there remains no sanctity to refer/rely on such a statement which has been retracted within three days of the date of search. Even otherwise on legal grounds also since no incriminating material has been referred to by ld. AO which has a direct nexus with the assessee nor is there any material which could throw any light that the assessee has parked its unaccounted funds with the Siddha Group as loans and advances/booking money of the Siddha Projects the proceedings carried out u/s 153A of the Act deserves to be quashed since for AY 2014-15 & AY 2015-16 the original returns were duly submitted on 11.06.2014 & 21.08.2015 and the time limit for issuance of notice u/s 143(2) of the Act stood expired and no proceedings u/s 143(3)/147 of the Act were pending on the date of search, therefore, both the assessment years were completed assessment years which cannot be abated and for such completed assessment year, no additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial or documents whatsoever was found during the course of search under section 132 of the Act and since the time limit for issuing notice u/s 143(2) of the Act for A.Y. 2006-07 stood expired as on the date of search i.e., 22/09/2011, the said assessment falls under the category of completed assessment and additions could be made in such completed assessments only if they are supported with any incriminating material found during the course of search. Therefore, the Assessing Officer has no jurisdiction whatsoever to frame assessment under section 153A/143(3) of the Act with reference to the issue for which no incriminating evidence or documents was found. It is by now well settled in law that in case of unabated assessments, only when any incriminating material or evidence is gathered in the course of search that the assessment can be framed u/s 153A of the Act in respect of income assessable with reference to such material. The assessment was completed under section 143(3) of the Act and no proceedings were pending when the search was conducted against the appellant. Assessment u/s 153A can be conducted only where any proceedings were pending at the time of search and got abated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not earlier made. As per Section 153(c) of the I. T. Act assessment is to be made afresh and Income to be assessed or reassessed. The meaning of reassessment is that there is no need to resort to Section 147 of the I. T. Act and to consider the disallowance in the assessment to be made under section 153 of the I.T. Act? 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is correct in misinterpreting the CBDT's Circular NO.7 as the same applies to assessments made u/s.143(3), 144 or 147 of the I. T. Act where appeals or rectification application will not abate? 2. Whether on the facts and in the· circumstances of the case, the Income Tax Appellate Tribunal is correct in law for the fact that the decision of Jharkhand High Court (2901TR 114) has not been properly interpreted as the same does not deal with a situation where assessment are made u/s. 143(1) of the I. T. Act and there is no proposition laid down that disallowance which required to be made if the return was selected for regular assessment u/s. 143(3) or u/s. 147 of the I. T,. Act could not be made u/s. 153A of the I. T. Act? While disposing appeal the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances" In that view of the matter, we are unable to admit the appeal. The appeal is, therefore, dismissed." d) In the case of PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA VERSUS M/S. RASHMI INFRASTRUCTURE PVT. LTD., 2020 (2) TMI 1463 the Hon'ble Calcutta High Court took the same view and held: ''The question is whether the assessee had unexplained cash credit in their books which could be charged to income tax in the previous year in question? We find on scrutiny of paragraphs 10 and 10.2 of the order of the tribunal that questions of fact and evidence were discussed and adjudicated upon by it. We set out paragraphs 10 and 10.2 of the impugned order of the tribunal is as follows: "10. Coming to the alleged cash 'trail, none of the material gathered by the Assessing Officer by way of bank account copies of various companies supposed to be part of the chain of companies was not confronted to the assessee. The alleged statements that wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (Supra), assessee's appeal on ground no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit. " The tribunal is the final fact finding authority. A plausible adjudication on facts has been made. We cannot reopen the facts any more in this jurisdiction. No questions of law far less any substantial question of law is involved. For those reasons, the appeal (ITAT NO.99 of 2019) and the connected application (GA No.1211 of 2019) are dismissed." e) In the case of M/s Shree Sai Builders, 43, R.R. Archade, Zone-II, M.P. Nagar, Bhopal -vs- ACIT (Central)-II, Bhopal in I.T.(SS).A. No. 245 to 249/Ind/2017 & ITA No. 631/Ind/2017 for Assessment Years : 2008-09 to 2011-12 & 2013-14 to 2014-15 Income Tax Appellate Tribunal, Indore Bench, Indore by its order dated 30.05.2019 held as follows : 8. We have heard rival contentions and perused the records placed before us and gone through the decision referred and relied by the Ld. Counsel for the assessee. For Assessment Year 2008-09 assessee has raised two grounds of appeal. Ground No.1 challenges the addition on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Appellate Tribunal "A" Bench, Kolkata by its order dated 26.07.2022 held as follows : "8. We have duly considered rival contentions and gone through the record carefully. Before adverting to the facts and alleged seized material considered by the ld.AO for making the addition in the hands of the present assessees, we deem it appropriate to bear in mind the position of law propounded in various authoritative judgments expounding scope of section 153A of the Act. We are of the view that in this regard, there were large numbers of decisions. First, we refer to the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon'ble Delhi High Court after detailed analysis has summarized the following legal position: 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: (i) Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision. Thereafter, the Tribunal has specifically held that serial no.(iv) of the above proposition, the Hon'ble Delhi High Court has specifically held that assessment under section 153 A of the Act has to be specifically made on the basis of seized material. ITAT Delhi Bench was considering an aspect whether the evidence in the shape of books of accounts, money, bullion, jewellery found during the course of search relates to other person than the searched person, can that be considered while making assessment under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench's order. It reads as under: "15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under any other provision of law, but certainly, not wider Section 153A. This goes to the root of the matter." 9. Hon'ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153 A of the Act. 10. Hon'ble Gujarat High Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): "[A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A which is different from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers [ITA 23/2021 & others (Delhi High Court) 9. DCIT -vs.- Bhavya Merchandise (P) Ltd. [2020] 121 taxmann.com 112 (Kolkata Trib.) 10. Sarva Priya Holdings Pvt. Ltd. -vs.- DCIT [IT(SS)A Nos. 97 & 98/KOL/2014 11. Purulia Metal Casting -vs.- DCIT [ITA No. 1217/KOL/2019) 12. DCIT -vs.- Shri Ram Realcon Pvt. Ltd. [IT(SS)A No. 14 & 15/KOL/2017 13. Vikram Financial Services Ltd. -vs.- DCIT [IT(SS)A No. 81/KOL/2010 14. DCIT -vs.- M/s. Bohra G. & NN Brothers Pvt. Ltd. [IT(SS)A No. 89/KOL/2017 14. A perusal of the above finding would indicate that the Assessing Officer has nowhere made reference to any seized material in the assessment order. The Assessing Officer has been examining the matter as if he is passing a regular assessment order u/s 143(3) or 147 of the Act. Under the scheme of assessment as propounded in the various judgments of the Hon'ble High Courts referred above, an addition can only be made if some incriminating material regarding receipt of bogus share application money was found during the course of search. The Assessing Officer did not make reference to this effect. The ld. CIT(A) is on the same line. The ld. CIT(A) has discussed the issue on merits but di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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