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TMI Blog2024 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order 2. On facts and circumstances of the case and in law, the Ld. CIT(A) has erred in relying the judgment of Apex Court in the case of PCIT Central-3 vs. Abhisar Buildwell Pvt. Ltd and other in the Civil Appeal No. 6580 of 2021 dated 24.04.2023, whereas the Apex court in the case of PCIT Central-3 vs. Abhisar Buildwell Pvt. Ltd has discussed the case of M/s Kesarwani Zarda Bhandar Sahson, Allahabad wherein it has been observed that the AO has the power to reassess the return of assessee not only for the undisclosed income which was found during the search operation but also with regard to material that was available at the time of original assessment. 3. That the appellant craves leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 3. The brief fact of the case is that the assessee society is registered u/s.12A of the Act and had applied more than 85% of its receipts for charitable purposes. The society runs an educational Institute in the name of Hi-Tech Institute of Engineering & Technology at Delhi Hapur Bypass, Ghaziabad. 3.1 A search and seizure operation u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the remaining amount of Rs 1,76,00,000/- the assessee has stated that these advances were received against Land at Khichra village and the advances were returned back to the parties (6 entities), in subsequent financial year as no deal could materialize. Ld. AO states that the assessee has furnished the ledger accounts and his bank statement showing the receipt of advances, however, no confirmation and documentary evidences have been furnished to prove that the amounts received from these 6 parties are advances against land. Ld. AO further states that no agreement to sell or cancellation agreement has been furnished, therefore it is hard to believe that such huge amounts were received and given back by the assessee without any paperwork like agreement. In view of this, Ld. AO concluded that the appellant failed to establish link between the advance of Rs. 1,76,00,000/-rеceived by it as advance against land and the amounts shown to be received in its bank account from the 6 parties. Thus Ld. AO observed that the appellant failed to prove genuineness of the transaction and thus amount of Rs. 1,76,00,000 was considered an unexplained in terms of section 68 of IT Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant submitted the confirmed copies of accounts from all the parties containing their name, address and PAN details before the Ld. AO. Ld. AR submits that from these details, it can be seen that the transactions held amongst the parties are genuine. He further submits that in addition to these copies of the supporting documents ie confirmations, copies of ITR and bank statements of parties have also been enclosed to prove the identity and creditworthiness of the parties as well as genuineness of the transactions. 6.7 In the remand report the assessing officer submits that during the assessment proceedings, the assessee failed to furnish documentary evidences with respect to the advances of Rs. 1,76,00,000/-, hence the same were treated as unexplained and added to the total income of the assessee. He submits that during appellate proceedings, the assessee appellant has furnished additional evidences in form of confirmation of accounts and submitted that amount of Rs. 1,76,00,000/- was received from 6 parties as advance against land at Khichra Village and that these advances were repaid on account of non materialization of the deal. Ld. AD states that the documents/ eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assume the jurisdiction to assess or reassess the total income taking into consideration the incriminating material unearthed 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. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 15. Insofar as the aforesaid Civil Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be framed u/s 153A of IT Act. 6.10 Looking to the facts and circumstances of the case and latest decision of Hon'ble Supreme Court in case of PCIT Central-3 vs Abhisar Buildwell Pvt Ltd. and others in the Civil Appeal no. 6580 of 2021 and connected appeals filed by the Revenue as well as various other assessee in the judgment delivered on 24.04.2023 (Hon'ble Judges Sh. M R Shah and Sh. Sudhanshu Dhulia), I am of the opinion that the addition le. Rs. 1,76,00,000/- made u/s 68 of IT Act cannot be sustained. Hence the same is deleted and relief is allowed to the appellant. The concerned ground of appeal is adjudicated accordingly. 6.11 In the ground of appeal no. (iii) the appellant submits that Ld. AO has erred in initiating penalty proceeding u/s. 271 (1) (c) of the IT Act. In this regard, it is observed that no appeal lies against initiation of penalty proceedings, hence the submission of appellant is not tenable, therefore, the concerned ground of appeal is dismissed. 4. We have heard the rival submissions and perused the relevant material available on record. 5. The Ld. DR has submitted that the Ld CIT(A) has failed to explain the income which was found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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