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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 ..... ed in the residential premises of the assessee on 28.01.2020 and concluded on 29.01.2020. Due to ill health, the assessee was not in sound state of mind, hence he had admitted of taking accounting charges in his wife's name and part of salary in his son's name. Immediate after the search action, due to heart attack, the assessee was admitted in Zydus Hospital on 18.02.2020 and under gone coronary artery disease and Stents were implanted. 2.1. The assessee's wife namely Mrs. Shruti R. Patel is a B.Com. Graduate with Advanced Accounting, Auditing and having good knowledge in writing of books of accounts on tally system as part time job work basis and filed her Return of Income u/s. 139(1) of the Act as follows: Asst. Years Date of Filing Total Income 2013-14 26/07/2013 1,66,550/- 2014-15 21/07/2014 1,48,890/- 2015-16 24/08/2015 1,68,240/- 2016-17 27/07/2016 1,85,250/- 2017-18 17/07/2017 1,99,520/- 2018-19 19/07/2018 1,40,450/- 2019-20 28/07/2019 2,12,240/- 2.2. Similarly, assessee's son Shri Maulesh Raju Patel was filed his original Return of Income as follows: Asst. Years Date of Filing Total Income 2015-16 28/08/2015 1,78,790/- 2016-17 27/07/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification and knowledge to execute such accounting work. Therefore, it is prayed that addition of Rs. 40,000/- may kindly be deleted. 5. The ld. CIT(A) has erred in law and on facts by confirming addition of Other Incomes of Rs. 1,08,894/-, 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. 1,08,894/- 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. Your appellant craves liberty to add, to alter, to modify, to amend or to withdraw/delete any of the grounds of appeal at any time, on or before the hearing of appeal. 6. We have heard the rival submissions extensively and perused the materials available on record including the Paper Book filed by the assessee. Since Assessment Years 2014-15 to 2018-19 are unabated assessment years and No incriminating material was seized during the course of search by the Revenue from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions, referred to hereinabove. Only the Allahabad High Court in the case of Pr. Commissioner of Income-tax v. Mehndipur Balaji, 2022 SCC Online All 444 : (2022) 447 ITR 517 has taken a contrary view." (para 7) 4.4 The Kabul Chawla (supra) was quoted for its ratio as under, "In the case of Kabul Chawla (supra), the Delhi High Court, while considering the very issue and on interpretation of Section 153A of the Act, 1961, has summarised the legal position as under: Summary of the legal position 38. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under section 132 of the Act, notice under section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi High court in Kabul Chawla (supra) and of this Court in Saumya Construction (supra) laying down the law that no addition can be made in respect of completed assessment in absence of any incriminating material. The supreme court in laying down the proposition considered the object and purpose of insertion of section 153A of the Act. 6. In view of the above decision of the supreme court in Abhisar Buildwell (P.) Ltd. (supra), there is no gain saying that the issue sought to be raised and the substantial questions of law ought to be put forth in that context, are answered. 7. No case is made out in this appeal. No question of law much less any substantial question of law could be said to be arising in view of law laid down by the supreme court in Abhisar Buildwell (P.) Ltd. (supra). The appeal stands dismissed accordingly." 6.3. Respectfully following the above judicial precedents, the asst. years 2014-15 to 2018-19 being unabated assessments and in the absence of any incriminating material seized from the assessee's premises, these assessment orders are without jurisdiction and bad-in-law and are hereby quashed. In the result the appeals filed by the assessee in IT(SS)A Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 2.2 and 2.3 of this order. But based on the statement of the assessee's son recorded u/s. 132[4] of the Act and also without considering the Retraction Affidavits filed by the assessee, his wife and his son with relevant material evidences. 7.2. It is appropriate to quote the CBDT's Circular No.286/2/ 2013, which prohibits the department i.e. search party to take any confession in the search. The CBDT is of the view that often officials used to obtain confession from the assessee and stop further recovery of material. Such confessions have been retracted and then the addition could not withstand the scrutiny of higher authorities, because no material was found supporting such addition. Keeping in view the above principle, the Board has restrained the Search Authorities from taking confession under section 132(4) of the Income Tax Act. There are a large number of decisions which suggest that without corroborating evidence, addition ought not to be made on the basis of a declaration made under section 132(4) of the Income Tax Act. 7.3. It is settled Principle of Law that the disclosure or admission made under section 132(4) of the Act during the search proceeding is admissible ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2[4] of the Act and without taking note of the Retraction Affidavit with relevant evidences filed by the assessee. Therefore the assessment orders are without jurisdiction and bad-in-law, the same are hereby quashed. In the result the appeals filed by the assessee in IT(SS)A Nos.37/Ahd/2023 and IT(SS)A No.99/Ahd/2023 are hereby allowed. 8. The Grounds of Appeal raised by the Assessee in ITA No. 280/ Ahd/2023 for Asst. Year 2013-14 reads as under: 1. The ld. AO has erred in passing assessment order u/s. 147 r.w.s. 143(3) of the Income Tax Act, 1961. The order passed is bad-in-law, null, void and without jurisdiction. Therefore, the assessment order may kindly be quashed. 2. The ld. CIT(A) has erred in law in confirming notice u/s. 147, whereas, the income earned by appellant wise from accounting charges is of Rs. 70,000/- and other incomes are belonging to her own earned incomes from other sources. Therefore, the notice issued for escaped income of Rs. 70,000/- is against the provisions of law. Therefore, the assessment order may kindly be quashed as notice is bad and illegal. 3. The ld. CIT(A) has erred in confirming AO addition of wife's income in the hands of appellant ..... 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