TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 95
X X X X Extracts X X X X
X X X X Extracts X X X X
....h were not raked up before the ld. AO. 2.2 That the Ld. CIT(A) made false averments in para 4.3 that the ld. AO had referred various documents and valuables like jewellery found and seized from the premises of the assessee. 2.3 That the Id. CIT(A) even mentioned a wrong fact in para 4.3 that appellant had the agricultural income or not is purely a question of fact. In fact, assessee had no issue of agricultural income which was pending for adjudication before ld. CIT(A). 2.4 That the ld. CIT(A) in para 4.7 rejected the additional grounds for A.Y 2007-08 which was never the year covered u/s 153A assessments. 3. That the Ld. CIT(A) has erred in ignoring the judgement of jurisdictional Hon'ble Delhi High Court in the case of CIT v Kabul Chawla [2016] 380 ITR 573 (Delhi) whereby it was held that completed assessments can be interfered with by the Ld. AO while making addition u/s 153A only on the basis of some incriminating material found during search. 4. That the Ld. CIT(A) has erred in directing the Ld. AO to restrict the addition of Rs. 6,00,000/- made u/s 2(22) (e) of the Income Tax Act to the extent of accumulated profits. By doing so, Ld. CIT(A) has exceeded his jur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssee in marriage of his daughter. This adition was made by the Assessing Officer on protective basis in the hands of the assessee, whereas substantive addition was made in the hands of Sh Ashok Chowdhary in assessment year 2009-10. The addition of Rs. 6 lakh was made holding the sum received by the assessee from company M/s Rosemary properties Private Limited as deemed dividend in terms of section 2(22)(e) of the Act. 2.1 Aggrieved with the additions made, the assessee filed appeal before the Ld. CIT(A) and challenged legality of the additions made by way of filing additional ground. The assessee also challenged additions on merit. The Ld. CIT(A) did not admit the additional ground of the assessee and upheld addition of deemed dividend following his own order for assessment year 2013-14 and 2014-15. The addition of Rs. 3.3 crore made on protective basis by the Assessing Officer was held by the Ld. CIT(A) on substantive basis in the hands of the assessee. 3. Before us, Ld. Counsel of the assessee referred to ground No. 3 of the appeal and submitted that in view of the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (2016) 380 ITR 573 (Delhi), completed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cipal CIT Vs. Jignesh P. Shah (2018) 9999 taxmann.com 111 (Bombay) held that no addition of deemed dividend could be made in assessment order passed under section 153A of the Act in absence any incriminating material. Accordingly, we set aside the finding of the Ld. CIT(A) on the issue in dispute and direct the lower authorities to delete the addition under section 2(22)(e) amounting to Rs. 6 lakh. The ground No. 3 of the appeal is accordingly allowed. 4. Since we have already granted relief on the issue of addition under section 2(22)(e) of the Act while deciding the ground No. 3 of the appeal the other ground challenging the addition under section 2(22)(e), i.e., ground no. 1 to ground no. 2.4 and ground No. 4 & 5 are rendered merely academic, and are not required to adjudicate upon. 5. In ground No. 6.2 of the appeal, the assessee has challenged addition of Rs. 3.30 crores on the ground that the document relied upon for making the addition was found from the premises of the third party and thus, the addition could have only been made under section 153C of the Act. 5.1 Brief facts qua the issue in dispute are that during the search proceeding at the premise of Sh. Ashok Chowdh....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../Del/2015](pronounced on 19.03.2019) * DCIT Vs. Vikas Jain [ITA No.4075/Del/2014] (pronounced on 19.03.2019) * Pavitra Realcon (P) Ltd. Vs. ACIT [2017] 87 taxmann.com 142 (Del. - Trib.) * Krishna Kumar Singhania Vs. DCIT [2017] 88 taxmann.com 259 (Kol- Trib) * CIT Vs. Pinaki Misra [2017] 88 taxmann.com 521 (Delhi-HC) 5.3 Before us, the Ld. DR relied on the decision of the Hon'ble Delhi High Court in the case of Sh. Vinod Kumar Gupta in ITA No. 1003/2017, wherein addition on the basis of statement of the third party during the course of such was held as validly made. 5.4 We have heard the rival submissions of the parties and also perused copy of Panchnama through which the document in dispute was seized. On perusal of the Punchnama, we find that the said search warrant was issued in the case of Shri Ashok Chaudhri and the Panchnama is not containing name of the assessee. Therefore, it is evident that the material relied upon for making addition was not found from the premises of the assessee. 5.5 We also find that during relevant period, i.e., FY: 2014-15, for using any material found from the premises of the third party during the course of the search in assessment proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en provision of section 153C of the Act would be applicable and have to be adhered to. Thus, in the instant case, the Assessing Officer was required to first complete the proceedings under section 153A in hand, which were initiated by way of notice dated 30/06/2014 and thereafter, he was at liberty to take action under section 153C of the Act for bringing the material found from the premise of Sh. Ashok Chaudhri to tax in the hands of the assessee. 5.7 In the case of Shivani Mahajan(supra), identical question was raised before the Tribunal as under: "9. We have carefully considered the arguments of both the sides and perused the material placed before us. After considering the facts of the case and the rival submissions, we find that in these appeals, following two questions arise for our consideration: (i) Whether any material found in the search of any other person than the assessee in appeal can be considered in the assessment under 153A of the assessee. 5.8 The Tribunal after considering arguments of the parties held as under: "14. From a reading of the above decisions of Hon'ble Jurisdictional High Court, it is evident that completed assessment can be interfered wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cuments, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly, Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We, respectfully following the above decisions of Hon'ble Jurisdictional High Court, hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person." 5.9 The facts of the case of Vinod Kumar Gupta (supra) are distinguishable with the facts of the instant case. In the case of Vinod Kumar Gupta (supra) material found from Sh. S.K. Gupta was used in assessment proceeding under section 153A of the Act in the case of Sh. Vinod Kumar Gupta. But in that case warrant in fact was issued in the name of Sh. SK Gupta, Gaurav Gupta, Sh. Vinod Kumar Gupta, Ms. Veena Gupta, Sh. Vikas Gupta, and Ms. Madhu Gupta. The Panchnama drawn was also signed by both the assessee (Sh. Vinod Kumar Gupta) and SK Gupta. T....