TaxTMI 
TaxTMI 
2019 (7) TMI 1537
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....r the sake of convenience, we shall take into consideration the facts mentioned in assessee's appeal for the assessment year 2010-2011 in IT(SS)A No.86/CTK/2018 in the case of Dr. Sukanta Chandra Mallick , wherein the assessee has raised grounds as under :- "1. That the order passed by the learned CIT(A) is arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-II, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 3. That on the facts and in the circumstances of the case the addition of Rs. 3,66,311 on account of difference between Bank loan amount as per the Balance sheet and as per the bank account statement made by the Ld. ACIT, Central Circle-II, Bhubaneswar without basing on any seized materials is liable to be deleted....
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.... not sustainable as they are unabated. It was also the contention of ld. AR before us that being the appellate authority, the CIT(A) is bound to follow the legal hierarchy of applicability of decisions of higher forums. Even the CIT(A) has not considered the judicial pronouncements favouring the assessees in the very same issue, relied upon by the assessees, which have been reproduced by the CIT(A) in para 6.2 at page 4 of its order for the assessment year 2010-2011. The ld. AR strenuously supported his case relying on plethora of judicial decisions placed in the paper book and prayed for allowing the appeals of both the assessees for the assessment years under consideration. To support his contentions, ld. AR relied on the following judicial decisions :- i) CIT Vs. Kabul Chawla, [2015] 61 taxmann.com 412 (Delhi); and ii) CIT Vs. Sinhgad Technical Education Society, [2017] 84 taxmann.com 290(SC) 7. Defending to the arguments of ld. AR, before us, ld. DR relied on the order of both the authorities below in respect of confirming the addition made by the AO and submitted that there were no details furnished by the assessees to substantiate their claim during the course of asse....
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....are issued and served. The A.R., Ms. Swati Kejirwal, FCA appeared from time to time and the case is discussed with her with reference to the facts in the return of income and also with reference to the books of accounts seized relating to the group of the cases as a whole." 9. Further, the ld. AR drew our attention to the Panchanama filed in the paper book at pages 8 to 23 and submitted that no such books of accounts has been seized neither any incriminating material is found during the course of search to enable the AO to invoke the provisions of Section 153A of the Act. Accepting the contention of ld. AR, we have gone through the panchanama filed by the assessee in the paper book running from pages 8 to 23 and we found that in the panchanama prepared on 12.03.2016 in para No.5(a)(i), it is mentioned that books of accounts and documents were found and seized as per annexure 'A' (01 sheets) and in Annexure-1 filed at page 10 of the paper book, contaiing list/inventory of a/c books etc. found/seized, it is mentioned that bunch of loose sheet found/seized and marked as SCMR-01. Similarly, in the panchanama prepared on 14.03.2016 & 17.03.2016, in para (i) of Sl.No.5(a), with regard ....
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.... of Kabul Chawla, [2015] 61 taxmann.com 412 (Delhi), wherein the Hon'ble High Court has held as under :- "On a conspectus of section 153A(1), read with the provisos thereto, and in the light of the law explained in various decisions, the legal position that emerges is as under: (i) Once a search takes place under section 132, notice under section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six assessment years immediately preceding the previous year relevant to the assessment year in which the search takes place. (ii) Assessments and reassessments pending on the date of the search shall abate. The total income for such assessment years will have to be computed by the Assessing Officers as a fresh exercise. (III) The Assessing Officer will exercise normal assessment powers in respect of the six years previous to the relevant assessment year in which the search takes place. The Assessing Officer has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of eac....
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....n of the assessee. We also find that there is no material referred to by the AO to say that any incriminating material was unearthed during the search. Therefore, in the factual background, we do not find any justification for the AO to make the impugned additions/disallowance in an assessment finalized u/s 153A of the Act in the absence of any incriminating material having been found during the course of search, qua the impugned additions made in assessment order. Respectfully, following the ratio of decision of the Hon'ble Delhi High Court in the case of Kabul Chawla (supra), wherein, the Hon'ble High Court after detail analysis concluded that, where there is no incriminating material qua each of the assessment year roped in under section 153A of the Act, then, no addition can be made while framing the assessment under section 153A of the Act. The aforesaid principle and ratio are clearly applicable on the facts of the present case also, as admittedly no incriminating material relating to these assessment years or as a matter of fact for any of the assessment years were found during the course of search and accordingly, we set aside the orders of both the authorities below an....