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TMI Blog2023 (10) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... taken for the sake of brevity) on the grounds inter-alia that :- "1. Whether on the facts and circumstances of the case and in law, the Ld CIT(A)-48. Mumbai is right in holding that no incriminating material was found to sustain the addition. 2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A)-48, Mumbai is right in deleting the entire additions of Rs. 6,79,16,278/- made in the assessment order only on the ground that no incriminating material was found to sustain the addition without appreciating the facts that the assessment order was passed after carefully analysing the seized material." 3. Briefly stated facts necessary for consideration and adjudication of the issues at hand are : the assessee being a proprietary concern in the name and style of M/s. Dev Engineers who is a major partner in the same to the extent of 80% shares in the firm covered under the search and seizure operation carried out under section 132 of the Income Tax Act, 1961 (for short 'the Act') in case of Pratap Uttam Purohit group on 16.02.2017. During the search and seizure operation, statement of assessee was recorded under section 132(4) of the Act on the basis of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A) the Revenue has come up before the Tribunal by way of filing present appeals. 5. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. 6. Undisputedly in the aforesaid appeals for A.Y. 2012-13, 2013-14 & 2015-16 assessment was already framed under section 143(3) of the Act. It is also not in dispute that on the basis of search and seizure operation carried out in case of assessee on 16.02.2017 notice under section 153A was served upon the assessee and in response thereto the assessee filed return of income declaring the same income as filed in the original return of income. It is also not in dispute that for A.Y. 2012-13, 2013-14 & 2014-15 the Ld. CIT(A) has deleted the addition by deciding the additional legal ground raised by the assessee that in the absence of any "incriminating material" in these cases no addition is sustainable particularly in case of completed assessment. 7. In the backdrop of the aforesaid undisputed facts the Ld. D.R. for the Revenue challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Gurinder Singh Bawa vs. DCIT (2012) 28 Taxmann.com 328 (Mumbai-Trib) and the decision rendered by the Hon'ble Rajasthan High Court in case of Jai Steel (India) Ltd. vs. ACIT (2013) 36 taxmann.com 523 (Rajasthan). 11. Hon'ble Bombay High Court in case of Continental Warehousing Corporation (supra) has dealt with the identical issue and held that when the assessment has already attained finality the same cannot be disturbed by the AO by passing assessment order under section 153A of the Act unless some "incriminating material" has come on record qua the years under consideration. It is contended by the Ld. D.R. for the Revenue that since SLP filed by the Department in case of Continental Warehousing Corporation (supra) has already been admitted by the Hon'ble Supreme Court the same cannot be relied upon. However, we are of the considered view that when the operation of the decision rendered by the Hon'ble Bombay High Court has not been stayed it is binding on one and all. This issue has also been decided in case of Alcargo Global Logistics Ltd. (supra) by the Special Bench of the Tribunal that unless there is independent "incriminating material" qua the years under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2022 has been discussed or relied upon while making the addition during the years under consideration whereas in case of B. Kishore Kumar (supra) there was specific finding that loose sheets and notings on telephone diaries concerning assessee were found during the search on the basis of which the assessee has admitted unaccounted income. Whereas in the cases at hand none of such "incriminating material" has been brought on record by the assessee during the assessment as well as remand proceedings. 16. Hon'ble Delhi High Court in case of PCIT vs. Shiv Kumar Agarwal (2022) 143 taxmann.com 55 (Delhi) has held that addition solely made by relying on the disclosure made by the MD of a company the addition is not justified. Hon'ble Delhi High Court in case of Best Infrastructure India Pvt. (supra) discussed at length the decision rendered in case of PCIT vs. Meeta Gutgutia (2017) 82 taxmann.com 287 (Delhi) and Smt. Dayawanti Gupta vs. CIT (2016) 390 ITR 496 (Delhi) and further relying on the decision of CIT vs. Kabul Chawla (2016) 380 ITR 573 (Delhi) and CIT vs. Continental Warehousing Corpn. (Nhava Sheva) Ltd. 374 ITR 645 (Bom.) and held that statement recorded under section 132(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of Rs. 34,52,932/- qua which specific query was raised by calling the details from the assessee. However, except some detail of the land holding and some cash receipt the assessee has expressed his inability to furnish the information called by the AO. It is a fact on record that assessee's agricultural land is located in district Jellore, Rajasthan. The AO to decide the issue in question by relying upon the order passed by the AO in assessee's own case for A.Y. 2014-15 and also considered the agricultural income brought on record by way of field verifications which are not reconciling with the assessee's details filed during the assessment proceedings. Assessee's income during the earlier years is as under: S.No. A.Y. Agricultural Income 1 2011-12 16,74,990 2 2012-13 13,73,025 3 2013-14 20,24,900 4 2014-15 34,85,200 21. The AO by applying the principle of extrapolation laid down by the Hon'ble Supreme Court in case of Eusafali 90 ITR 271 (SC) proceeded to estimate the income in the hands of the assessee and thereby excess income of the assessee of Rs. 17,67,596/- has been treated as unexplained income under section 68 of the Act. 22. Similarly, the AO also made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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