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TMI Blog2024 (2) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in all these appeals, the same are disposed of by this common order. 2. The Registry has noted that there is a delay of 326 days in filing the quantum appeals and 1 day delay in filing the penalty appeals by the assessee. 3. Ld. Counsel Shri Aseem L. Thakkar brought to our notice to the Affidavit filed by the assessee, wherein it is stated that the assessee is an individual, having small business income. During the seizure of cash from the possession of two persons at State Bus Transport Depot at Valsad, pursuant to that warrant of authorization was executed in the name of the assessee following that notices u/s. 153A was issued to the assessee. In response, the assessee filed his Returns of Income and assessments were completed through his Chartered Accountant Shri R.K. Jindal, making addition on account of unexplained cash credits. 3.1. Aggrieved against the same, the assessee filed appeals before Ld. CIT(A), who dismissed the appeals filed by the assessee. The same was not informed to the assessee by his former Chartered Accountant. It is thereafter, the AO initiated penalty proceedings and passed exparte penalty orders on 07.09.2018. The assessee filed appeals against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... houghtful consideration and perused the materials available on record. As it can be seem from the assessment order, the Chartered Accountant Shri R.K. Jindal appeared before the Assessing Officer while framing the assessment as well as appeared in the quantum appeals before Ld. CIT(A). During the penalty proceedings, none appeared before the Assessing Officer which has resulted in passing an exparte penalty orders as well as appellate orders. It is thereafter, the assessee engaged the present Counsel with the delay of 326 days in filing the quantum appeals and 1 day delay in filing the penalty appeals. It is always to be kept in mind that the condonation of delay is always a double edged sword, which has sharp edges on both sides and to be handled carefully by any party. 6.1. The Madras High Court judgment namely Royal Stitches Pvt. Ltd. (cited supra) relied by the Ld. CIT-DR held as follows: "....It is trite law that where a case has been presented in the Court beyond limitation, the petitioner has to explain the Court as to what was the 'sufficient cause' which means an adequate and enough reason which prevented him to approach the Court within limitation. It is crysta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of Collector Land Acquisition, Anantnag v. Mst. Katiji [1987] 2 SCC 107 ordinarily a litigant does not stand to benefit by lodging an appeal late. It is further observed by the Hon'ble Supreme Court that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 4. Considering the aforesaid principles laid down by the Hon'ble Supreme Court and the facts of the case on hand, we are of the view that learned Tribunal ought to have condoned the delay and ought to have decided and disposed of the appeals on merits rather than dismissing the same on the ground of limitation." 6.4. As held by the Jurisdictional High Court, it is practically not possible for the assessee to collect from the former Tax Consultant explaining his misconduct by way of affidavit to any Authorities. As the assessee could not pursue with the former Tax Consultant for getting such affidavit, rather he pursued the matter with the new Tax Professional for filing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts rendered by the Jurisdictional Gujarat High Court, when an assessment has to be made in relation to the search or requisition under section 153A of the Act, namely, in relation to material disclosed during the course of search or requisition, if in relation to any particular assessment year, at the same time when there is no incriminating material 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. This legal preposition is now settled by the Hon'ble Supreme Court by judgement dated 24-04-2023 in the batch of cases namely PCIT, Central-3 -Vs- Abhisar Buildwell Pvt. Ltd. reported [2023] 149 taxmann.com 399 (SC) holding that in respect of completed assessments/unabated assessments, no addition can be made by Assessing Officer in the absence of any incriminating material found during the course of search under section 132 or requisition made under section 132A of the Act observing as follows: "Section 153A, read with sections 132 and 143, of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (Conditions precedent) - Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the search and the other material available with the AO including the income declared in the returns; and (iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. 11. Respectfully following the above judicial precedents, we have no hesitation in deleting the additions made on account of unexplained cash credit of Rs. 7,50,000/-, Rs. 10,41,000/- and Rs. 10,00,000/- made by the Ld. AO for the respective Asst Years 2009-10, 2010-11 & 2013-14, without any incriminating material found during the course of search from the premises of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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