TaxTMI 
TaxTMI 
2020 (3) TMI 495
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....peal raised by the assessee are as follows: 1.1 The order passed u/s.250 on 27.1.2017 for A.Y.2008-09 by CIT(A)-7, Abad upholding the validity of proceedings u/s.153A of the Act as well as the addition of Rs. 1,82,49,065/- as unaccounted profit in respect of land transactions is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned addition. 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2008- 09, though the conditions precedents were not fulfilled. Therefore, the notice as well as proceedings u/s.153A(1) were wholly illegal and unlawful in view of no incriminating material found during the course of search for this year. 2.3 That in the facts and circumstances of the case as well as in law, the Ld.ClT(A) ought not to have upheld the validity of proceedings as well as notice U/S.153A dated 19.11.2013 for A.Y.2008-09. 3.1 The Ld.CI....
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....incriminating material found in respect of the unabated proceedings. Therefore no additions can be made. The Ld. AR accordingly argued in respect of assessment year under consideration being unabated assessment, the Ld. AO has made the addition, for which absolutely no incriminating materials were found during the course of the search. Hence he prayed for deletion of addition made for assessment year under consideration. He placed reliance on the decisions of the Hon'ble Bombay High Court in the case of CIT vs. Continental warehousing corporation (Nhava Shiva) Ltd. and All Cargo Global Logistics ltd. reported in 374 ITR 645 and Hon'ble Gujarat High Court in the case of Pr. CIT Vs. Saumya Construction reported in 387 ITR 529. 7. In view of the above, the learned AR accordingly claimed that there cannot be any addition on account of sale of the land as discussed above as there was no incriminating document found during the search. 8. The Ld. DR, on the other hand, argued vehemently on the validity of the assessment completed u/s 153A/143(3) of the Act by placing reliance on the orders of the subordinate authorities. 9. We have perused the case record, analyzed the facts and ....
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....ction 153A read with section 143(3) cannot disturb the assessment order" 11. We also place reliance on the judgment of Hon'ble Bombay High Court in the case of CIT vs. Gurinder Singh Bawa reported in 79 taxmann.com 398 wherein it was held as under: "7. In view of the above, on issue of jurisdiction itself the issue stands concluded against the revenue by the decision of this Court in Continental Warehousing Corpn. (Nhava Sheva) Ltd. (supra). In the appeal before us, the revenue has made no grievance with regard to the impugned order of the Tribunal holding that in law the proceedings under Section 153A of the Act are without jurisdiction. This in view of the fact that no assessment were pending, so as to abate nor any incriminating evidence was found. The grievance of the revenue is only with regard to finding in the impugned order on the merits of the individual claim regarding gifts and deemed dividend. However once it is not disputed by the revenue that the decision of this Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings....
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....t the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act." 13. Once the proceeding u/s 153A of the Act is initiated which are special proceedings, the legislature provides different treatments for abated and unabated assessments. However, in respect of unabated assessments the legislature has conferred powers on the Ld. AO to just follow the assessments already concluded unless incriminating materials are found in the course of search. 14. That for the reasons stated above and on basis of various judicial pronouncements, we hold that the impugned addition for the Assessment year under consideration which was unabated/concluded assessment as on date of search cannot be made in the search assessments in the absence of any incriminating material found in the course of search and accordingly the impugned addition is directed to be deleted. Since the legal issues are addressed, we refrain to give our findings on merits of additions under the provisions of the Act. Accordingly, the ground raised by the assessee is allowed. 15. In the result, the appeal of th....
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.... prayed that the addition of Rs. 1,41,12,238/-and Rs. 48,793/- and validity u/s.153A(1) upheld by the CIT(A) may kindly be deleted. 17. The assessee in the 1st and 2nd ground of appeal has challenged the validity of the assessment proceedings framed under section 143(3)/ 153A of the Act as the additions were made without any incriminating materials found during the course of search. 18. The ld. AR before us has challenged the assessment proceedings framed under section 153A of the Act in ground no. 1 & 2 on the reasoning that the addition made by the AO in the assessment year under consideration represents the items of the regular assessments which was disclosed in the income tax return. Therefore he was of the view that no addition can be made as there was absolutely no incriminating materials were found during the course of the search. Hence he prayed for deletion of addition made for assessment year under consideration. 19. The Ld. DR, on the other hand, argued vehemently on the validity of the assessment completed u/s 153A/143(3) of the Act by placing reliance on the orders of the subordinate authorities. 20. We have perused the case record, analyzed the facts an....
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....s found during the course of the search. The issue is answered in negative. The identical issue, we have already decided in favour of the assessee in his own case pertaining to the assessment year 2008-09 vide ITA No. 104/AHD/2017 in paragraph No. 9 to 14 of this order. For the detailed discussion, please refer to the relevant paragraph. Thus for parity of the reasons, we allow the ground of appeal raised by the assessee. 22. The question also arises whether the draft deed found during the search under section 132 of the Act represents the incriminating document. In the present case a draft deed was found representing the purchase of land by the assessee from the parties namely Laxmanji Punaji Thakor, Bhagvatiji Punaji Thakor and Vikramji. Punaji Thakor. As per the deed the consideration was decided at Rs. 4,800/- per square meter. However the assessee claimed to have purchased the lands described in the draft deed through Bakakhat dated 14-05-2010 from Shri Sanjay Jayntilal Patel, Dhirajbhai Bharatkumar Patel and Urmilbhai Gandhibhai Patel. This fact can also be verified from the statement of Shir Sanjay Jayantilal Patel recorded under section 131 of the Act. Accordingly, the a....
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....ands further passed on to his legal heirs namely Smt. Madhuben Punaji Thakor (wife), Laxmanji Punaji Thakor, Bhagvatiji Punaji Thakor and Vikramji. Punaji Thakor 28. Thereafter, the legal heir Smt. Madhuben Punaji thakor sold her share of land to Shri Shabbir V. Qureshi through register deed dated 20-11-2009 for Rs. 4,90,000/- only. 29. Similarly the legal heirs namely Laxmanji Punaji Thakor, Bhagvatiji Punaji Thakor and Vikramji. Punaji Thakor along with Sarkarji Thakor has sold their part share of the land through Banakhat dated 28-5-2009 to Shri Sanjay Shri Sanjay Jayntilal Patel, Dhirajbhai Bharatkumar Patel and Urmilbhai Gandhibhai Patel. etc. for Rs. 30,85,000/- Subsequently Shri Sanjay Jayntilal Patel, Dhirajbhai Bharatkumar Patel and Urmilbhai Gandhibhai Patel sold the impugned pieces of land to the assessee through Banakhat dated 14-05-2010 for Rs. 1,30,84,800/- 30. In the meantime the assessee also purchased piece of land from Shri Shabbir Qureshi at Rs. 11 lacs through registry dated 4-6-2010. 31. However, during the course of search a draft deed was discovered between the assessee and Laxmanji Punaji Thakor, Bhagvatiji Punaji Thakor and Vikramji. Punaji Thak....
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....sion of purchase price, is confirmed. Ground of appeal no 3 is dismissed. 34. Being aggrieved by the order of the learned CIT (A) the assessee is in appeal before us. 35. The learned AR before us submitted that the impugned draft deed was a dump document which was not executed at all. Therefore, there cannot be any addition on account of such draft deed. 36. On the other hand the learned DR before us vehemently supported the order of the authorities below. 37. We have heard the rival contentions of both the parties and perused the materials available on record. In this regard, we note that there was no material available with the revenue suggesting that there was any payment of cash made by the assessee to the concerned parties as discussed above. It is also pertinent to note that the AO during the assessment proceedings has not verified the veracity of the impugned draft deed from the parties namely Laxmanji Son, Bhagvatiji and Vikramji. As such the land in dispute was purchased by the assessee from the other parties namely Shri Sanjay Jayntilal Patel, Dhirajbhai Bharatkumar Patel and Urmilbhai Gandhibhai Patel. Thus in our considered view there cannot be any addition ....
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....ssed u/s.250 on 27.12.2016 for A.Y.2008-09 by CIT(A)-7, Abad upholding the validity of proceedings u/s.153A of the Act as well as the addition of Rs. 1,82,49,065/- as unaccounted profit in respect of land transactions is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned addition. 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2008- 09, though the conditions precedents were not fulfilled. Therefore, the notice as well as proceedings u/s.153A(1) were wholly illegal and unlawful in view of no incriminating material found during the course of search for this year 2.3 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2008-09. 3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the addit....
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....tances of the case and in law, the Ld. CIT(A) has erred in law and/or on facts in deleting the disallowance of Interest of Rs. 58,06,303/- paid to Master Developers & Amar Construction. 5. 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 Rs. 38,48,000/- on account of information as per seized material. 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. 50. At the outset we note that the deletion of the additions challenged by the Revenue in the present appeal represents the regular items of assessment for the year under consideration being unabated assessment year. We also find that the ITAT in the group cases of the assessee in ITA 167 to 170/AHD/2017 vide order dated 26-2-2019 involving identical facts and circumstances has deleted the addition made by the AO as these additions were not based on any incriminating documents. The relevant extract of the order is repro....
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.... 4.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the disallowance of bad debts/business loss of Rs. 94,14,513/-. 4.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheldthe disallowance of bad debts/business loss of Rs. 94,14,513/-. It is, therefore, prayed that the addition/ disallowance of Rs. 3,83,40,000/-&Rs. 94,14,513/-and validity u/s.153A(1) upheld by the CIT(A) may kindly be deleted. 54. At the outset we note that the technical issue raised by the assessee in ground 1 & 2 challenging the validity of the assessment framed under section 153A of the Act is identical to the issue raised in the case of Shri Rajnibhai Jivraj Desai in ITA No. 104/AHD/2017 which has been decided by us in favour of the assessee vide paragraph No. 14 & 15 of this order. For the detail discussion please refer the relevant paragraph as discussed above. Therefore respectfully following the same and to maintain parity with the findings, we allow the technical ground raised by the assessee in his favour without going into the merit of the case. 55. In the result the appeal of the assessee is partly....
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....ue raised in the case of Shri Rajnibhai Jivraj Desai in ITA No. 104/AHD/2017 which has been decided by us in favour of the assessee vide paragraph No. 14 & 15 of this order. For the detail discussion please refer the relevant paragraph as discussed above. Therefore respectfully following the same and to maintain parity with the findings, we allow the technical ground raised by the assessee in his favour without going into the merit of the case. 58. In the result the appeal of the assessee is partly allowed. 59. In IT(SS)A No. 111/AHD/2017 for A.Y. 2009-10, the Grounds of appeal raised by the assessee are as follows: 1.1 The order passed u/s.250 on 26.12.2016 for A.Y.2009-10 by CIT(A)-7, Abad upholding the validity of proceedings u/s.153A of the Act as well as the addition of Rs. 5,35,63,900/-as unaccounted profit in respect of land transactions is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned addition. 2.1 The Ld.CIT(A) has grievously err....
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....2.2016 for A.Y.2011-12 by CIT(A)-7, Abad upholding the validity of proceedings u/s.153A of the Act as well as alleged suppressed purchase price of Rs. 1,41,12,238/- in respect of lands at village: Makarba. is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned addition. 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2011- 12, though the conditions precedents were not fulfilled. Therefore, the notice as well as proceedings u/s.153A(1) were wholly illegal and unlawful in view of no incriminating material found during the course of search for this year. 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2011-12. 3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the addition asalleg....