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TMI Blog2025 (1) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in confirming the assessment order despite the fact the same is null and void as the same has been passed in violation of CBDT Circular No. 10/2019 requiring mandatory DIN in the body of the assessment order. 3. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of the assessee that the assessment proceedings initiated and consequently assessment order passed under section 153A of the Act by the learned AO is bad and liable to be quashed in the absence of any search action under section 132 of the Act on the assessee. 4. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law. in rejecting the contention of the assessee that the notice issued under section 153A of the Act and consequential order has been passed by the learned AO is invalid and barred by limitation as the impugned assessment year does not fall within the definition of 'relevant assessment year as defined under Explanation 1 to fourth proviso to section 153A(1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alter any of the grounds of appeal." 3.1 Following grounds have been raised by the assessee in the AY 2009-10: - 1. "On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in confirming the assessment order despite the fact the same is null and void as the same has been passed in violation of CBDT Circular No. 19/2019 requiring mandatory DIN in the body of the assessment order. 3. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of the assessee that the assessment proceedings initiated and consequently assessment order passed under section 153A of the Act by the learned AO is bad and liable to be quashed in the absence of any search action under section 132 of the Act on the assessee. 4. (i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the notice issued under section 153A of the Act by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in confirming the above addition despite that the same has been made merely by relying on the statements recorded at the back of the assessee, without giving assessee an opportunity to cross examine the same. 11. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the above addition despite that the same has been made on the basis of material collected at the back of the assessee without giving assessee an opportunity to rebut the same. 12. The appellant craves leave to add, amend or alter any of the grounds of appeal." 3.2 In nutshell, the assessee has challenged the quantum of additions and the assumption of jurisdiction by the Assessing Officer (hereinafter the 'AO'). ITA No. 2899/Del/2024, AY 2008-09 4. At the outset, the Ld. Counsel raised the issue of jurisdiction. He challenged the issuance of notice under section 153A of the Income Tax Act, 1961 (hereinafter, the 'Act')for AY 2008-09 on the reasoning that the said notice had been issued beyond the period of limitation. Hence, the same was illegal and invalid. Placing emphasis on the Explanation 1 to section153A of the Act, it was submitted that the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated from the end of the assessment year relevant to the previous year in which search is conducted. The long arm of the law can go up to this terminal point and not one day beyond. When the statute is clear and admits of no ambiguity, it has to be strictly construed and there is no scope for looking to the explanatory notes appended to statute or circular issued by the department. 10. In the case on hand, the statute has prescribed one mode of computing the six years and another mode for computing the ten years. Section 153 A(1)(b) states that the assessing officer shall assess or reassess the total income of six years immediately preceding the assessment year relevant to the previous year in which search is conducted. Applying this yardstick, the six years would go up to 2013-14 The search assessment year, namely, 2019-20 has to be excluded. This is because, the statute talks of the six years preceding the search assessment year. But, while computing the ten assessment years, the starting point has to be the end of the search assessment year. In other words, search assessment year has to be including in the latter case. It is not for me to fathom the wisdom of the parliament. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 153A of the Act cannot be sustained in the absence of any incriminating material found during the search proceedings. The appellant has placed reliance upon the decision of Hon'ble Supreme Court in the case of Abhisar Buildwellin Civil Appeal no. 6580/2021 dated 24.04.2023. In view of the detailed findings discussed in above paras of this order, it is erred that the appellant is a paper company which has been used by the Oswal group for routing their own unaccounted funds. The said findings have been made after thorough examination of various adverse findings/ material unearthed during the course of search proceedings u/s 132 of the Act carried out on 22.01.2018. Enough material has been brought on record, which has been unearthed during the course of search proceedings, to show that the transactions done by the appellant are not real. It is also pertinent to mention that the appellant company was not found at the address shown in the ITR. The said address was found pertaining to one Shri Mittar Sain whose statement was recorded u/s 131 (1A) of the Act wherein he categorically admitted that he has been residing in the said property along with his family and he has never rente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(4) is evidence for making an assessment as held by Apex Court in B. Kishore Kumar v. Dy. CIT [2015] 62 taxmann.com 215/234 Taxman 771 and even a statement U/s 132(4) shall also constitute incriminating material to dislodge any earlier finding for the purpose of making an assessment U/s 153A. The aforesaid list is subjective and shall change, in the nature of each case. In the appellant's case, the incriminating finding could be unearthed during the course of search at the premises given in the ITR that the appellant is a paper company. Hence, it is proved that there is an existence of an incriminating finding or evidence allowing the AO to frame assessment with in the purview of section 153A of the Act. in view of these facts, the ratio of the decision of Hon'ble Supreme Court in the case of Abhisar Buildwell is not applicable to the facts of the present case as the additions on this issue in the case of the appellant for the year under consideration, has been made on the basis of incriminating evidences unearthed during the course of search proceedings. Accordingly, Grounds of appeal no. 5-7 are dismissed." 10. At the outset, the Ld. Counsel categorically submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agaland, Mizoram & Arunachal Pradesh) in CIT V. M/s Goldstone Cements Ltd. (ITA No. 10 of 2022); CIT V. M/s Goldstone Cements Ltd. (ITA No. 7 of 2022); CIT V. M/s Goldstone Cements Ltd. (ITA No. 9 of 2022). In particular, Para 9.9 the judgment was highlighted, wherein portion of Hon'ble ITAT defining "incriminating material" has been reproduced as below - "Para 9.9....... it is first relevant to understand as to the meaning of the expression "incriminating material" or evidence. There can be several forms of incriminating material or evidence. In order to constitute an incriminating material or evidence, it is necessary for the AO to establish that the information, document or material, whether tangible or intangible, is of such nature, which incriminates or militates against the person from whom it is found. Some common forms of incriminating material, inter alia, are for instance, where the search action u/s. 132 of the Act reveals information (oral or documentary) that the assets found from the possession of the assessee in form of land, building, jewellery, deposits or other valuable assets etc. do not corroborate with his returned income (which includes earlier AY's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks or documents maintained in ordinary course of business." It may please be noted by this Hon'ble Bench that the above decision was relied upon only for the limited purpose of and to stress upon the scope of 'incriminating material"- and facts of this decision should not be imported to the facts of the present case before this Hon'ble Tribunal. Further, the issue of incriminating material has also been dealt by the Ld. CIT (A) in his order vide Para 8, Pg. 106- 109 wherein it has been held that the 'incriminating material need not be limited to documents; it can also include the absence of previously claimed facts that become apparent during a search and seizure, such as the absence of claimed office/business premises. In this case, both the AO and the CIT(A) found that the assessee was not present at the business premises or address listed in the ITR, which constituted incriminating material justifying the AO's jurisdiction under Section 153A. As has been brought out by both the AO & the CIT (A), in this case, the existence of assessee at its business premises as well as address in ITR was proved to be in negative during the search action & it was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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