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TMI Blog2024 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... incriminating material, AO would not assume the jurisdiction to assess or reassess total income of the appellant in the present case. As such, the additions made by the AO and sustained by the Ld. CIT(A) are liable to be deleted. Thus, ground of assessee is allowed. Assessment u/s 153A or 153C - addition has been made on the basis of material seized during search conducted on a person other than the assessee (i.e., an independent search warrant was issued) - AY 2018-19 - HELD THAT:- It is admitted facts on record that in the present case, the assessment proceedings were imitated and completed u/s 153A of the Act, based on material seized during search conducted on a person other than the assessee. In the present case, in our view, the assessment proceedings could only be initiated u/s 153C and not 153A of the act, and that to only after satisfaction was so arrived in the case of proceedings of M/S Golden Tulip Hospitality Pvt. that the material found and seized during search were being pertains to the appellant. Thus, the CIT (A) has failed to appreciate the fact that the searched premises from where the ledger was found does not belong to the assessee, and therefore, the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before the appeal is heard and disposed off. 2.1 Considering the Medical History of appellant with AIIMs, New Delhi duly supported with Affidavit, the delay of 451 days in filing appeal is condoned and the appeal is admitted to be heard on merits of the case. 3. There are common issues on similar facts in ITA No 282 and 283/Asr/2023 and therefore both the appeals are adjudicated together for brevity. 4. Apropos ground no. 7, the appellant challenged that the Ld. CIT(A) has erred in confirming the addition without bringing on record any incriminating material found during the course of search. 5. At the outset, the ld. Counsel submitted that a search and seizure operation u/s 132 was carried out at the premises of Sh. Mohammad Nayeem Khan and the related parties who are the directors of M/S Golden Tulip Hospitality Pvt. Ltd i.e. She Nasir Ahmad Dar, Sh. Muzaffar Ahmad Dar [The appellant] and She Ishtiaq Ahmad Dar on 27.02.2019. The AR further submitted that it is a matter of record that nothing incriminating was found during the course of search and as such, the additions made by Assessing Officer were not based on any incriminating materials/paper seized during search operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [2023] 149 taxmann.com 399/293 Taxman 141/454 1TR 212 (SC), special leave petition to be disposed of in terms of said judgment - Held, yes [Para 2] [In favour of assessee. b) 23] 149 [email protected] 399 (SC) SUPREME COURT OF INDIA Principal Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd. Section 153A, read with sections 132 and 143, of the Income-tax Act, 1961 Search and seizure - Assessment in case of (Conditions precedent) - Whether object of section 153A is to bring under tax undisclosed income which is found during course of search or pursuant to search or requisition; therefore, only in a case where undisclosed income is found on basis of incriminating material, Assessing Officer would assume the jurisdiction to assess or reassess total income for entire six years block assessment period even in case of completed/unabated assessment- Held, yes - Whether in case of search under section 132 or requisition under section 132A, Assessing Officer assumes jurisdiction for block assessment under section 153A and that all pending assessments/reassessments shall stand abated Held, yes Whether in respect of completed assessments/unabated assessments no addition can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asr/2023 is allowed. 8. Since, the appellant gets relief on legal issue in ground no.7 in both the appeals in ITA Nos. 282 and 283/Asr/2023 and hence, the other grounds rendered academic and do not require adjudication. ITA No. 284/Asr/2023 (2018-19): 1. On the facts and circumstances of the case, the Ld. CIT(A) vide order u/s 250(6) dated 10.05.2022 has erred in confirming the addition to the tune of Rs. 657790/- over and above the returned income of Rs. 243560/-. 2. That order passed by Ld. AO u/s 153A dated 10.04.2021 and further order passed by Ld. CIT(A) u/s 250(6) dated 10.05.2022 confirming the addition made by the AO are bad in law in as much as while passing the impugned orders the material relied upon/taken from are found from the premises of M/s Golden Tulip Hospitality during search which could have been only imported in assessee's case as per procedure prescribed u/s 153C which is not at all followed in extant case. 3. That order passed by Ld. AO u/s 153A dated 10.04.2021 and further order passed by Ld. CIT(A) u/s 250(6) dated 10.05.2022 are bad in law as the same has been confirmed by applying the provisions of 69A, taking into consideration the CA certificate. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could have been only imported in assessee's case as per procedure prescribed u/s 153C of the Act. He argued that the Ld. CIT(A) has erred in confirming the addition of Rs. 657790/- made u/s 69A by the learned AO on account of difference in returned income and income as per certificate issued by M/S Naveen Aggarwal Associates on 14.04.2018 without considering the fact that the document relied upon by the AO was found from the premises of M/S Golden Tulip Hospitality which were subject to search u/s 132 and as such the assessment proceedings had to be initiated vide notice u/s 153C of the I.T. Act. 11. The Ld. AR contended that the Ld. A.O. has completed the assessment under section 153A for the Assessment Year 2018-19 which is bad in law, since the addition has been made on the basis of material seized during search conducted on a person other than the assessee (i.e., an independent search warrant was issued). The AR argued that in the present case, the assessment proceedings can only be initiated u/s 153C and not u/s153 of the Act, after satisfaction was being arrived in the assessment proceedings of M/S Golden Tulip Hospitality Pvt. that the material found and seized du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person. 12. The Ld. DR rely on impugned order. However, he failed to rebut the contentions of the counsel. 13. We have heard the rival contention, perused the material on record, impugned order and case law cited before us. It is admitted facts on record that in the present case, the assessment proceedings were imitated and completed u/s 153A of the Act, based on material seized during search conducted on a person other than the assessee. In the present case, in our view, the assessment proceedings could onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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