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TMI Blog2024 (4) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded u/s. 132[4] of the Act and without taking note of the Retraction Affidavit filed by the assessee with relevant evidences. This issue is already dealt by us in paragraph nos.7 to 7.5 of this order, which is squarely applicable to the facts of the present case also. Therefore, the reassessment order passed by the AO is without jurisdiction and bad-in-law, consequently the same is hereby quashed. In the result, the appeal filed by the assessee is hereby allowed. - Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member For the Assessee : Shri Darshan Gandhi, A.R. For the Revenue : Shri Kamlesh Makw ana, CIT-DR ORDER PER BENCH: - These bunch of eight appeals are filed by the Assessee as against separate appellate orders passed by the Commissioner of Income Tax (Appeals)-12, Ahmedabad arising out of the assessment orders passed under section 153A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to the Assessment Years 2014-15 to 2019-20 and reassessment order passed under section 147 of the Act relating to Asst. Year 2013-14. 2. The brief facts of the case is that the assessee is an individual and working as an Accountant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee. 4. Aggrieved against the same, the assessee is in appeal before us raising the following Grounds of Appeal in IT(SS)A No. 32/Ahd/ 2023 relating to the Asst. Year 2014-15 [common Grounds with only change in figures for other Asst. Years]: 1. The ld. AO has erred in passing assessment order u/s. 153A r.w.s. 143(3) of the Income Tax Act, 1961. The order passed is badin- law, null, void and without jurisdiction. 2. The ld. CIT(A) has erred in confirming addition of wife's income in the hands of appellant, whereas, no incriminating documents found and seized in search. The addition is not in spirit of provisions of section 153A, therefore, it is prayed that addition of Rs. 1,48,890/- may kindly be deleted. 3. The ld. CIT(A) has erred in confirming addition of wife's income in the hands of appellant, merely on the basis of statement in search, which was recorded under duress, fear and not in proper state of mind. The statement was retracted by filing Retraction Affidavit. Therefore, it is prayed that addition of Rs. 1,48,890/- may kindly be deleted. 4. The ld. CIT(A) has erred in law and on facts by confirming addition of Rs. 40,000/- earned by Appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of completed assessment/un-abated assessment, the jurisdiction of the Assessing Officer to make assessment is confined to incriminating material found during the course of search under section 132 of the Act or the requisition under section 132A and whether additions made by the Assessing Officer in absence of any incriminating material found during the search, could be sustained or not. 4.2 The Supreme Court confirmed the view taken by this court in Pr. CIT v. Saumya Construction (P.) Ltd. [2017] 81 taxmann.com 292/[2016] 387 ITR 529 well as that of Delhi High Court in CIT v. Kabul Chawla [2015] 61 taxmann.com 412/234 Taxman 100/[2016] 380 ITR 573, which were in favour of the assessee. The Supreme Court held that no addition can be made in respect of completed/unabated assessment in absence of any incriminating material. 4.3 The Supreme Court observed in Abhisar Buildwell (P.) Ltd. (supra) thus, .The lead judgment is by the Delhi High Court in the case of Kabul Chawla (supra), which has been subsequently followed and approved by the other High Courts, referred to hereinabove. One another lead judgment on the issue is the decision of the Gujarat High Court in the case of Saum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 4.5 The decision of Saumya Construction (supra) of Gujarat High Court was also quoted for its paragraph Nos. 15 and 16 to held that the case of completed assessment/unabated assessment in absence of any incriminating material will not permit making of addition by the Assessing Officer and that the Assessing Officer has no jurisdiction to reopen the completed assessment. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law and on facts by confirming addition of Rs. 1,45,000/- earned by Appellant's wife from Accounting Work done by her for the appellant's client, whereas, the appellant's wife possesses qualification and knowledge to execute such accounting work. Therefore, it is prayed that addition of Rs. 1,45,000/- may kindly be deleted. 5. The ld. CIT(A) has erred in law and on facts by confirming addition of Other Incomes of Rs. 67,239/-, which was earned by wife from bank FDR interest, saving bank interest, Post Office Interest, Bond Interest, dividend, etc. which are appellant's wife's personal incomes. Therefore, it is prayed that addition of Rs. 67,239/- may kindly be deleted. 6. Your appellant also reserves its right to submit details in connection with the aforesaid additions/disallowances as fresh evidence as per Rule 46A of the I.T. Rules, 1962 at the time of hearing of this appeal. 7.1. As observed in the preceding paragraphs, impugned additions were made solely on the basis of Statement recorded under Section 132(4) of the Act. The Ld AO has not considered the Returns of Income filed by the assessee s wife and son under section 139[1] within the prescribed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or addition - Held, yes - Whether Tribunal had rightly reduced additions made by Assessing Officer - Held, yes [Paras 5 and 6][In favour of assessee] 7.4. In the case of ACIT Vs JKD Pearl India Developers (P) Ltd (ITAT Jaipur) in ITA No. 324/ JP/2017 dated 09/09/2020 held as follows: We are of the considered view that the mere admission is not conclusive as to the truth of the matter. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances in which it is made. It can be shown to be erroneous or untrue. Therefore, addition made merely and solely on the basis of confession without any corroborative evidence was not sustainable in law and moreover the said confession made by the assessee was subsequently retracted and since the addition was not supported by any cogent, convincing independent documentary evidence, therefore, the same was correctly found to be not sustainable by the Id. CIT(A). Hence, we uphold the same. 7.5. Respectfully following the above judicial precedents, the asst. years 2019-20 to 2020-21 being abated assessments and in the absence of any incriminating material seized from the assessee s premises but based only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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