TaxTMI 
TaxTMI 
2022 (8) TMI 950
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.... As to the second addition, no relief was allowed and the addition of Rs. 56,264/- was sustained. 6. In this case original return of income was filed on 10.10.2006 as per the assessment order and thus as on the date of search i.e. 14.03.2012, the said assessment attained finality and hence addition in the assessment order passed u/s. 153A could not have been made in the absence of incriminating material found as a result of search & seizure operations. ITA No. 1806/Del/2017: A.Y. 2007-08: 7. The only effective issue in the present appeal is against the part relief allowed by Ld. CIT(A). 8. The addition was made in the assessment order passed u/s. 153A, i.e. Rs. 3,65,031/- on account of interest income from HSBC Bank Account. The Ld. CIT(A) upheld the addition to the extent of Rs. 2,41,816/-. In this case original return of income was filed on 11.10.2007 as per the order u/s. 143(1) and thus as on the date of search i.e. 14.03.2012, the said assessment attained finality. ITA No. 1807/Del/2017: A.Y. 2008-09: 9. The only effective issue in the present appeal is against the part relief allowed by Ld. CIT(A). 10. The addition was made in the assessment order passed u/s. 153A i.e.....
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....original assessment. 3. CIT Vs. Kesarwani Zarda Bhandar Sahson Alld. [ITA No. 270 of 2014] (Allahabad) where Hon'ble Allahabad High Court held that Assessing Officer has power to reassess returns of assessee not only for undisclosed income found during search operation but also with regard to material available at time of original assessment. 4. DR. A.V. Sreekumar Vs. CIT Kerala High Court 90 taxmann.com 355 (Kerala) Where pursuant to search and enquiry unaccounted consideration from purchaser had been unearthed, it could not be said that other material already available with Department had been relied upon in proceedings. 5. CIT Vs. St. Francis Clay Decor Tiles (385 ITR 624) where Hon'ble Delhi Kerala Court held that notice issued under section 153A-return must be filed even if no incriminating documents discovered during search. 6. Vinod Kumar Gupta Vs. DCIT ITA No. 1003 of 2017 where Hon'ble Delhi High Court upheld addition made on the basis of statements made by his brother Sh. Suresh Kumar Gupta and the materials seized from his brother's premises, given that the premises were separate, though a common warrant under Section 132 of the Income Tax Act, 196....
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..... CIT vs. Meeta Gutgutia (2017) 395 ITR 526 in paras 69 to 72 has held as under: "69. What weighed with the Court in the above decision was the "habitual concealing of income and indulging in clandestine operations" and that a person indulging in such activities "can hardly be accepted to maintain meticulous books or records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission. 70. The above distinguishing factors in Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. Conclusion 72. To conclude: (i) Question (i) is answered in ....
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....-Subsequently, merged entity allotted further bonus shares to Assessee and thereafter it was listed on Bombay Stock Exchange--Assessee sold these shares on stock exchange and earned a huge profit which was claimed as exempt income on account of being long term capital gain--A search was conducted u/s. 132--Assessing officer framed assessment order detailing modus operandi as to how cash is provided to accommodation entry operator in lieu of allotment of shares of a private company--Thereafter when matter was carried up in appeal before CIT(A), findings of AO were affirmed--However, in further appeal before ITAT, said findings were set aside--Held, Assessment has been framed under section 153A, consequent to search action--Scope and ambit of section 153A is well defined--In event no incriminating material is found during search, no addition could be made in respect of assessments that had become final." 12. Hence, following the view of the Hon'ble High Court of Delhi, we hereby hold that no addition is called for in the absence of any incriminating material found and seized during the search & seizure operation conducted u/s. 132 of the Income Tax Act, 1961. 13. With regard to....