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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 ..... record any incriminating material during the course of search which were competed assessment under section 143(3) of the Act addition made is not sustainable in the eyes of law on the ground that there was absolutely no incriminating material on record. Decided in favour of assessee. - SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER Present for: For the Assessee by : Shri Bharat Kumar Purohit, C.A. For the Revenue by : Shri Manoj Kumar Sinha, Sr. A.R. ORDER PER : KULDIP SINGH, JUDICIAL MEMBER: Since common question of law and facts have been raised in these inter-connected appeals, the same are being disposed of by way of composite order to avoid repetition of discussion. 2. The appellant, Asst. Commissioner of Income Tax, Central Circle-2(1), Mumbai (hereinafter referred to as the Revenue ) by filing present appeals, sought to set aside the impugned orders dated 06.06.2022 passed by Commissioner of Income Tax (Appeals), Mumbai [hereinafter referred to as the CIT(A)] qua the assessment years 2012-13, 2013-14, 2014-15, 2016-17 on identically worded grounds except the difference in figure of additions ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses and conveyance expenses for Pratap Uttam Purohit group and after declining the contentions raised by the assessee the AO computed the total income of the assessee for A.Y. 2012-13 (a lead case) as under: Particulars Amount (Rs.) Amount (Rs.) Total income as per order giving effect to the order of the Hon'ble ITAT dated 18.12.2018 19,56,36,030 Add : Cash expenses 7,29,075 Add : u/s. 68 on account of unexplained agricultural income 1,73,025 Add : u/s. 68 on account of unexplained long term capital gain 5,95,53,125 Add : u/s. 69C on account of unexplained expenditure for LTCG 17,86,594 Add : u/s. 69C on account of bogus purchases expenditure 1,52,691 Add : u/s. 69C on account of bogus labour payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Madras in case of B. Kishore Kumar vs. Dy. CIT (2014) 52 taxmann.com 449 (Madras), Hon ble High Court of Delhi in case of CIT vs. Jansampark Advertising Marketing (P.) Ltd. (2015) 56 taxmann.com 286 (Delhi), Hon ble Supreme Court of India in case of V. Jaganmohan Rao vs. CIT (1970) 75 ITR 373 (SC) and the order passed by the co-ordinate Bench of the Tribunal in case of Skyway Infra Projects Pvt. Ltd. in ITA No.2665/M/2022 ors. order dated 28.02.2023. 8. However, on the other hand, the Ld. A.R. for the assessee in order to repel the argument addressed by the Ld. D.R. for the Revenue relied upon the order passed by the Ld. CIT(A) and contended that in case of completed assessment as in case of A.Y. 2012-13, 2013-14 2015-16 no addition can be made in the absence of incriminating material and relied upon the decision rendered by the Hon ble Bombay High Court in case of CIT vs. Continental Warehousing Corporation 374 ITR 0645, Hon ble Delhi High Court in case of PCIT vs. Shiv Kumar Agarwal (2022) 143 taxmann.com 55 (Delhi) and PCIT vs. Best Infrastructure India Pvt. Ltd. (2017) 397 ITR 82 (Delhi). 9. It is an admitted fact on record that no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as incriminating material and further contended that voluntary admission of the assessee qua undisclosed income is also incriminating material as has been held by the Hon ble Madras High Court in case of B. Kishore Kumar (supra). 13. In the entire assessment order there is no reference or discussion if any specific incriminating material was found during the search, even in the remand report no such incriminating material found during the search has brought on record so as to connect the same with the addition made in the assessment years under consideration. Merely on the basis of the fact that the assessee when confronted with facts disclosed by one Shri Sandip Jain particularly question No. 26 in search proceedings in his statement recorded on 19.02.2017, he has agreed that these expenses are booked to inflate expenses, this is not sufficient to fasten the liability of the assessee while framing assessment under section 153A of the Act, particularly when there is no incriminating material found during the search operation. 14. So far as question of applicability of order passed by the coordinate Bench of the Tribunal in case of Skyway Infra Projects Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision rendered by Hon ble Special Bench and confirmed by Hon ble Jurisdictional Bombay High Court, co-ordinate Bench of the Tribunal discussed in the preceding paras, we are of the considered view that when the AO has failed to bring on record any incriminating material during the course of search in case of assessment for A.Y. 2012-13, 2013-14 2015-16, which were competed assessment under section 143(3) of the Act addition made is not sustainable in the eyes of law on the ground that there was absolutely no incriminating material on record. So we find no illegality or perversity in the impugned order passed by the Ld. CIT(A). 19. So far as addition made by the AO for A.Y. 2016-17 under section 153A read with section 153(1) of the Act deleted by the Ld. CIT(A) on the same ground that in the absence of any incriminating material found during search operation no addition can be made, is concerned, it is admitted fact on record that assessment in this case was framed under section 143(1) of the Act on 31.10.2016 and time for issuance of notice for scrutiny qua the year under consideration was up till 30.09.2017 and search in this case was conducted on 16.02.2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found during search, which fact has been accepted by the assessee that cash payment of Rs. 5,00,00,000/- was made to Sadguru Buildspace Pvt. Ltd. and also brought on record relevant extract of document found as under: 23. The AO on the basis of incriminating document held the amount of Rs. 5,00,00,000/- as unexplained investment made by the assessee for purchase of shop No. 1 2 from Sadguru Buildspace Pvt. Ltd. and made addition thereof in A.Y. 2016-17. However, the Ld. CIT(A) has erred in deleting the addition made by the AO by deciding the legal ground in favour of the assessee that in the absence of incriminating material no addition can be made without thrashing the facts of the case, which principle is not applicable to the year under consideration i.e. A.Y. 2016-17 as discussed in the preceding paras. So the issue is required to be decided by the Ld. CIT(A) on merits after providing opportunity of being heard to the assessee. 24. In view of what has been discussed above, aforesaid appeal filed by the Revenue for A.Y. 2012-13, 2013-14 2015-16 are dismissed. However, appeal filed by the Revenue for A.Y. 2016-17 is hereby allowed for statistical purposes to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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