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TMI Blog2023 (11) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as incriminating material and could be basis of making the impugned assessment u/s 153A and, therefore, the ratio laid down in the case of Abhisar Buildwell [ 2023 (4) TMI 1056 - SUPREME COURT] squarely apply wherein it has been held that assessment u/s 153A of the Act can be framed only on the basis of incriminating material found at the time of search. Thus the impugned assessment order deserves to be set aside as devoid of any incriminating material. Addition u/s 68 - There is no dispute in so far as movement of goods is concerned. There is also no dispute in respect of corresponding purchases. Stock details have been accepted as such. Therefore, we fail to understand how the AO could invoke the provisions of section 68 for making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, the assessee furnished complete details of opening and closing stock, month-wise details of sales and purchases, alongwith names and addresses of the sellers and the buyers. 5. While scrutinizing the details of sales and drawing support from the statement of the CA, Shri Nirmal Sarda and his brother Shri Anil Sarda, the Assessing Officer formed a belief that the sales made to (1) Shree Chamunda Enterprises (2) Innovative Tradevision Ltd and (3) K.G. Enterprises are bogus and treated the entire sales as unexplained cash credit u/s 68 of the Act and made addition of Rs. 12,18,19,644/- in A.Y 2012-13 and Rs. 6,61,83,639/- in A.Y 2013-14. 6. Assessment was challenged before the ld. CIT(A) wherein it was vehemently argued that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound and seized which further corroborate the fact that the individuals of the Bajaj group had given unaccounted cash to Shri Nirmal Sarda C.A. and his younger brother Shri Anil Sarda C.A. in order to obtain accommodation entries of equal amount from shell concerns controlled by Shri Nirmal Sarda C.A. From the mobile phone of Shri Vikram Bajaj, an SMS confirming the receipt of cash by Shri Anil Sarda C.A. was found. 10. In our considered opinion, there is no reference to any incriminating material found from the premises of the assessee though reference to electronic conversation may be incriminating, but the same has no reference whatsoever with the assessee. The entire assessment is based upon the statement of Shri Nirmal Sarda and his br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preferred by the assessee M/s Kesarwani Zarda Bhandar Sahson, Allahabad are concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned assessment order deserves to be set aside as devoid of any incriminating material. 13. Coming to the merits of the case, there is no dispute that out of total sales, the Assessing Officer has singled out only sales made to three parties mentioned elsewhere. There is no dispute in so far as movement of goods is concerned. There is also no dispute in respect of corresponding purchases. Stock details have been accepted as such. Therefore, we fail to understand how the Assessing Officer could invoke the provisions of section 68 of the Act for making the impugned addition. 14. We further fail to understand that when the ld. CIT(A) has accepted the profit margin for rest of the sales, then why he has applied a different profit margi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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