TaxTMI 
TaxTMI 
2022 (10) TMI 1060
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....during the course of search pertaining to different assessment years. 3. He further states that the ITAT has erred in not appreciating that the statements of Mr. Vishesh Gupta recorded under Section 132(4) of the Income Tax Act 1961 ('the Act') during the course of search proceedings, in the absence of any other material, would in itself constitute 'incriminating material'. 4. He also states that the ITAT has committed an error in overlooking the legal position that the possession of incriminating material is prerequisite condition only for those assessment years in which the assessments were completed under Section 143(3) of the Act and not in those years wherein no scrutiny assessment was carried out. 5. He submits that the ITAT has erred in relying on the judgement of this Court in CIT vs Kabul Chawla 380 ITR 573 (Del) without considering that this issue is pending before the Supreme Court. 6. A perusal of the paper book reveals that both CIT(A) and ITAT have given concurrent findings of fact that no incriminating material or corroborative material with respect to the statement of Mr. Vishesh Gupta was brought on record by the Department and that no assessment for the years ....
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....same. This finding of fact, based on evidence calls for no interference, as we cannot re-appreciate evidence while exercising jurisdiction under section 260A of the Act. 8. Next, we find that, the assessment has been framed undersection 153A, consequent to the search action. The scope and ambit of section 153A is well defined. This court, in CIT v. Kabul Chawla, concerning the scope of assessment under Section 153A, has laid out and summarized the legal position after taking into account the earlier decisions of this court as well as the decisions of other High Courts and Tribunals. In the said case, it was held that the existence of incriminating material found during the course of the search is a sine qua non for making additions pursuant to a search and seizure operation. In the event no incriminating material is found during search, no addition could be made in respect of the assessments that had become final. Revenue's case is hinged on the statement of Mr. Jindal, which according to them is the incriminating material discovered during the search action. This statement certainly has the evidentiary value and relevance as contemplated under the explanation to section 132(....
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....can be used in evidence for making a block assessment only if the said statement is made in the context of other evidence or material discovered during the search. A statement of a person, which is not relatable to any incriminating document or material found during search and seizure operation cannot, by itself, trigger a block assessment. The undisclosed income of an Assessee has to be computed on the basis of evidence and material found during search. The statement recorded under Section 132(4) of the Act may also be used for making the assessment, but only to the extent it is relatable to the incriminating evidence/material unearthed or found during search. In other words, there must be a nexus between the statement recorded and the evidence/material found during search in order to for an assessment to be based on the statement recorded." (emphasis supplied) 10. Though, the issue involved in Kabul Chawla (supra) has been challenged and is pending adjudication before the Supreme Court, yet there is no stay of the said judgment till date. 11. Consequently, in view of the judgments passed by the Supreme Court in Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 S....
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....oods i.e. refined led. It is undisputed that the company is dealing in different types of items such as led, tin, selenium, aresnic etc. Naturally even under each of these items there are so many qualities having wide price fluctuation therefore, naturally this cannot be any justification of adopting a uniform gross profit rate. Further, in case of large quantities the gross profit earned therein is naturally less compared to smaller quantity sold. This is also demonstrated by assessee before CIT - A and therefore the CIT - A has held that the assessing officer has made a comparison between two incomparable products and of different lots of trading. The fact also shows that in subsequent to the completion of assessment for assessment year 2005 - 06 to assessment year 2011 - 12 the assessing officer has accepted the gross profit ratio of the assessee ranging between 8.22% to 11.85%. 38. The claim of the DR that when the assessee has not produced the books of accounts before the assessing officer as well as before the learned CIT - A, the CIT - A could not have deleted the addition, we find that the only addition made by the assessing officer is with respect to the gross profit rat....