TaxTMI 
TaxTMI 
2018 (11) TMI 1614
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.... in law and/or on facts in holding that such assessment or reassessment u/s 153A is to be restricted only to the incriminating materials found during the search. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that as the ground on legality of additions is allowed, the other grounds on merits are considered not necessary to be adjudicated as the same are purely academic. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and/or on facts in deleting the addition of unexplained cash credit u/s 68 of Rs. 2,14,50,000/- (AY 2008-09) & Rs. 4,65,00,000/- (AY 2010-11). 5. On the facts and in the circumstances of the case and in taw, the Ld. CIT(A) has erred in law and/or on facts in deleting the addition of unexplained expenses u/s 69C of Rs. 1,07,250/- (AY 2008-09) & Rs. 2,32,500/- (AY 2010-11). 6. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 7. It is, therefore, prayed that the order of the Ld. CIT (A) be set aside and that of the A.O. be restored to the above extent." ....
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....bul Chawla (supra) and on jurisdictional High Court decision in Saumya Construction (supra) for the proposition that no addition unfounded on and de hors the incriminating seized documents could have been made by the AO while refraining u/s 153A/ 153C those assessments which had remained unabated within the meaning of second proviso to section 153A. The AO's reliance on Shivnath Rai Hamarain (India) Ltd., 117 ITD 74 (Del) in his report dated 21/10/2016, is, in my considered opinion, totally misplaced in view of the same remaining no longer a good law as emphatically ruled by both Delhi HC in Kabul Chawla and Gujarat HC in Saumya Construction (supra). The AR is thus right that the AO erred in "interfering with" assessments which remained unabated as on the date of search. As such, when the examination of seized material by the AO did not lead him to any incriminating document/entry for the year under reference, he was indeed duty-bound to "reiterate' the total income which had attained finality before the date of search, and he indeed exceeded his jurisdiction in firstly taking up the roving enquiries unfounded on incriminating seized documents, and secondly, in making the i....
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....the search'. The expression 'unearthed during the search' is quite significant to denote that in respect of completed or non-pending assessments, the Assessing Officer is albeit duty bound to assess or reassess the total income but there is a cap on the scope of additions in such assessment, being the items of income 'unearthed during the search'. In other words, the determination of 'total income', in respect of the assessment years for which the assessments are already completed on the date of search, shall not be influenced by the items of income other than those based on the material unearthed during the course of search-...,.... 7. We see no reasons to take any other view of the matter than the view so taken by the coordinate bench. Respectfully following the same, and having noted that the additions of Rs. 11,05,51,000/- is not based on any incriminating material found during search operations on the assessee, we delete the said addition.,...." Saumya Construction TA No.24/2O16 dated 14/3/2O16) (Gujarat HC) "....18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consi....
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....ourt in the case of Jai Steel (India), Jodhpur v. Assistant Commissioner of Income Tax (supra). Besides, as rightly pointed out by the learned-counsel for the respondent, the controversy involved In the present case stands concluded by the decision of this court in the case of Commissioner of Income-tax-1 v. Jayabe Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer com reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed." 7. In view of the above, and in view of by now settled legal position as enunciated by Jurisdictional HC, the AO, in re-assessments of any of unabated and finally concluded as....