TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 985
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....ed on 24.04.2023 have not been considered properly by the Ld. CIT(A) and, as such, since no incriminating evidence was found during the course of search of the assessee and hence the addition of Rs. 99,16,874/-was not called for. 3. That the Ld. CIT(A) has confirmed the order of Assessing Officer by relying upon the statement of one Sh. Sunil Kumar Kayan and Sh. S.K. Khemka, which was recorded by the Investigation Wing, Kolkata on 13.03.2015 and not during the course of search of the assessee and, thus, the same could not be said to be the 'incriminating evidence' as found during search. 4. That the finding of the Ld. CIT(A) about the meaning of 'incriminating material' by relying upon certain article is without any basis and substance and it has been held in various judgments of Hon'ble High Courts/ Tribunals that the mere statement cannot be held to be incriminating material found during search and further, the assessee concerned had never conceded during the course of search, that such claim of long term capital gain was bogus. 5. That the reliance by the Ld. CIT(A) on the statement of S.K. Khemka, recorded at the back of the assessee and without provid....
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.... carried out at the residential and business premises of M/s Jain Amar Clothing Pvt. Ltd. Group of cases on 26/02/2016 and the assessee premises were also searched on the said date. Thereafter, the case of the assessee was centralized and notice under section 153(A) dt. 28/09/2016 was issued to the assessee. In response to the notice, the assessee filed his return of income on 31/12/2016 declaring total income of Rs. 40,93,500/- as originally declared under section 139(1) of the Act. 3.2 During the course of assessment proceedings, the AO stated that the assessee has claimed exemption of LTCG of Rs. 99,16,874/- during the A.Y. 2013- 14 in respect of sale of shares of M/s Access Global Limited and in order to verify the genuineness of the assessee's claim of exemption, he has examined the seized records, appraisal report of the documents as furnished by the DDIT, conducted independent field enquiries and investigation during the assessment proceedings which led to the fact that the claim of LTCG on equity shares has been found to be bogus and the gist of the inquiry so conducted were confronted to the assessee in terms of show cause notice dt. 14/09/2017. 3.3 In the show cause dat....
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....treated as bogus and added under Section 68 of the Act. 3.7 In response to show cause notice, the assessee submitted as under: * That he has purchased 850 equity shares of M/s Maple Goods (P) Ltd. in F.Y. 2010-11 through share broker S.K. Khemka. * That M/s Maple Goods (P) Ltd. was later on amalgamated with M/s Access Global Ltd. in November 2011 and as per the amalgamation scheme approved by the Hon'ble Calcutta High Court, against 1 share of M/s Maple Goods (P) Ltd., 47 equity shares of M/s Access Global Ltd. were allotted. * That the shares of M/s Access Global ltd. were received in D-MAT account of the assessee. * That the shares of M/s Access Global Ltd. were sold during the F.Y. 2012-13 through broker Shri Sunil Kumar Kayan. * That the statement of Shri Suresh Kumar Khemka, Shri Sunil Kumar Kayan, Shri Ashish Kumar Aggarwal, Shri Naval Jalan, Shri Ashok Kumar Kayan, Shri Harshvardhan Kayan relates to F.Y. 2014-15 whereas assessee has earned capital gain in F.Y. 2012-13. * That there is no incriminating material which was found during the course of search in case of the assessee with respect to the LTCG claimed. 3.8 Regarding first four points raised by the asses....
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....of the Act. 4. Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A). 4.1 During the course of appellate proceedings, it was submitted that the assessee has made investment in shares of M/s Maple Goods (P) Ltd. in A.Y. 2011-12 and the shares were purchased through Shri S.K. Khemka and the copy of the account with Shri S.K. Khemka was placed on record. It was submitted that payment against the purchase of shares was made to Shri S.K Khemka through saving bank account maintained with HDFC Bank and copy of the bank statement was also placed on record. 4.2 It was further submitted that after gap of a year, there was amalgamation of M/s Maple Goods (P) Ltd. with M/s Access Global Limited which was approved by the Hon'ble Calcutta High Court and in terms of the record date of 30/11/2011, the share holder of M/s Maple Goods (P) Ltd. were given 47 shares of M/s Access Global Limited against 1 share of M/s Maple Goods (P) Ltd. and copy of the order of the Hon'ble Court approving the scheme of amalgamation was also placed on record. 4.3 It was further submitted that the shares of M/s Access Global Limited were traded on Calcutta Stock Exchange and the assessee ....
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....chart and the return of income which has been duly filed in accordance with law. It was submitted that the said broker was an authorized broker of Calcutta Stock Exchange and duly registered with SEBI and all these facts are on record. The AO has not denied these facts. It was submitted that all the transactions have been transacted through Calcutta Stock Exchange for the sale of shares. Hence the contention of the AO is purely an allegation on assumption basis which is not permitted in the eyes of law. It was further submitted that the copies of share certificates which have been seized from the locker are issued by M/s Maple Goods (P) Ltd. against the purchases made through banking channels and through the broker. Even on the backside of these certificates, it can be seen that these shares have been transferred in the name of the assessee and relates to the assessee. It was submitted that the AO has not uttered a single word regarding purchases of shares of M/s Maple Goods (P) Ltd. which were purchased in the A.Y. 2011-12 whereas the AO is dealing and considering the same in the A.Y. 2013-14. It was submitted that the same is clearly illegal and bad in the eyes of law, since no a....
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....allotted to the assessee as per the Calcutta High Court orders. The shares were received by the assessee in Demat Account. This fact has been admitted by the AO. d) The shares were sold through the broker by the assessee through Calcutta Stock Exchange. This fact has been admitted by the AO. e) The payments against the sale of shares were received from the broker and this fact has not been contradicted by the AO. f) The complete details of saving bank account number xxxxxxx along bank statement with HDFC Bank for purchase of shares has been verified by the AO. Similarly, the complete details of payments received in this saving account against the sale of shares have not been doubted and were also verified during the proceedings. g) There is no contradiction made by the AO on the all the above issues in point no (a) to (f) in the assessment order, hence additions have been made u/s 68 arbitrarily. These are actual long term capital gains earned by the assessee. h) All the documents in the shape of share certificates issued by Maple Goods Pvt. Ltd. which are part of annexure A containing 1 to 182 pages have been doubted under the words Character of Certificates, inspite of ....
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....urchased through broker Shri S.K. Khemka is clear from the seized record. It was stated that given the nature of the whole scheme being managed, these documents are of incriminating nature as these were issued by broker to make the scheme appearing to be falling within the four corners of law and these documents are incriminating in nature as they have direct bearing on the assessment of correct income of the assessee. Moreover as per the case of Sumati Dayal Vs. CIT 214 ITR 801(SC) even the circumstantial evidence based on pre-ponderance of probability constitute incriminating material enough to make an assessment of income. 5.2 It was further stated by the AO in his remand report that the statement of Shri Suresh Khemka through which the assessee purchased the shares was recorded on oath on 13/03/2015 by the Investigation wing, Kolkata and in his statement, he has admitted that he has issued kachha panna (purchase contract notes) of M/s Maple Goods (P) Ltd. which later on got amalgamated with M/s Access Global Ltd. and for which many persons claimed LTCG and the list of such persons including the name of the assessee. It was stated by the AO that it is therefore a case of pre-ar....
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....A.Y 2011-12 stood completed wherein no adverse inference has been drawn in this respect and therefore no material much less any incriminating material has been found to allege that any consideration has been passed on or received outside books of accounts. It was accordingly submitted that being a case of unabated assessment in absence of any incriminating material found as a result of search in the case of the assessee the whole of the proceedings under section 153A r.w.s 143(3) is bad in law. 6.3 It was submitted that it is a trite law that incriminating material must be detected as a result of search on the applicant and such incriminating material should be qua the addition proposed to be made against the applicant and in the present case there is no such incriminating material unearthed during the search and therefore the contention of the AO that the share certificate are of the incriminating material as found during the course of search is devoid of any valid consideration. 6.4 It was further submitted that the contention of the AO that the purchase and the sale of the shares are a managed affair and therefore these documents are incriminating in nature and relied on the d....
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....riminating material is found during the course of search, the AO can assess the total income of the assessee on the basis of incriminating material as well as any other material in knowledge or possession of the AO including the total income declared in the returns. Hence the contention of the assessee that no incriminating material was found on the basis of which the said assessment has been framed was held without basis and rejected. Further, on merits as well, various contentions raised by the assessee were rejected and the findings and order of the AO was confirmed. 8. Against the said findings and the directions of the Ld. CIT(A), the assessee is in appeal before us. 9. During the course of hearing, the Ld. AR referred to the grounds of appeal taken by the assessee namely Ground No. 2, 3 and 4 and it was stated that the Ld. CIT(A) has failed to appreciate that it is a case of unabated assessment, and during the course of search on the assessee, no incriminating material/evidence has been found in respect of long term capital gains on shares which have been duly offered in the original return of income and the decision of Hon'ble Supreme Court in case of PCIT-III Vs. Abhisar ....
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....e statement recorded during the course of search has no evidentiary value and cannot be said to be incriminating evidence by itself as found during the course of search as held in various decisions and in this regard, reliance was placed on the decisions of Hon'ble Delhi High Court in case of Pr. CIT Vs. Best Infrastructure India Pvt. Ltd. 397 ITR 82 (Del), CIT Vs. Harjeev Aggarwal 290 CTR 263 (Del), Jaipur Benches of the Tribunal in case of DCIT Vs. A M Exports 69 ITR (Trib)16 (Jaipur Trib), and Delhi Benches in case of Brahmaputra Finlease P. Ltd. Vs. DCIT 51 CCH 796(Del Trib) and Rathi Steel Ltd. Vs. ACIT 56 CCH 102 (Del Trib). 9.5 Regarding the findings of the Ld. CIT(A), it was submitted that the purchased documents of the share cannot be considered as incriminating documents, rather these documents would support the stand of the assessee that the share purchase are genuine and are backed by proper documents. And the assessee has already taken the effect of the same at the time of sale of shares in the computation of income while filing the return of income much prior to the date of search and therefore it cannot be said that the assessee has not disclosed the relevant facts.....
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....aterial has been found during the course of search in terms of share certificates and the contract notes. It was submitted that both the AO as well as the Ld. CIT(A) have recorded a categorical finding that the incriminating material has been found and seized during the course of search. In this regard our reference was drawn to the show cause issued by the AO wherein he has specifically referred to pages no. 35 to 51 and 177,178 &179 of Annexure-A sized from Locker No. 194, HDFC Bank, Ludhiana. It was submitted that the contents of the documents so found and seized from the Locker clearly shows that the assessee has purchased the shares of M/s Maple Goods (P) Ltd. through the broker Shri S.K. Khemka. It was further submitted that Shri Suresh Kumar Khemka in his statement recorded on oath by the investigation wing, Kolkata has admitted that he has issued Katccha Panna (Purchase Contract Note) of M/s Maple Goods (P) Ltd. which later on got amalgamated with M/s Access Global and for which many persons claimed LTCG and list of such persons includes the name of the assessee. It was accordingly submitted that these documents so found and seized are of incriminating nature as these were ....
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.... by the Coordinate Bench in absence of any incriminating material found during the course of search. 11. We have heard the rival contentions and perused the material available on the record. Admittedly and undisputedly, the facts and circumstances of the case are identical and the matter is thus squarely covered by the decision of Coordinate Bench in case of Shri Ashish Jain & Others Vs. DCIT (Supra) wherein it was held as under: "12. We have heard the rival contentions and perused the material available on the record. In case of Pr. CIT Vs. Abhisar Buildwell (P) Ltd. (supra), the question for consideration before the Hon'ble Supreme Court was whether in respect of completed / unabated assessment, any addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A or not. The relevant discussions and the legal preposition so laid down by the Hon'ble Supreme Court are contained in para 5 to 14 of its judgment which read as under: "5. We have heard learned counsel for the respective parties at length. The question which is posed for consideration in the present set of appeals is, as t....
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....rched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO 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 each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under....
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....s evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. However, instead of the earlier regime of block assessment whereby; it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year, falling within such six assessment years. The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub-section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated u....
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....ld include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that 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." 8. For the reasons stated hereinbelow, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra), taking the view that no addition can be made in respect of completed assessment in absence of any incriminating material. 9. While considering the issue involved, one has to consider the object and purpose of insertion of Section 153A in the Act, 1961 and when there shall be a block assessment under section 153A of the Act, 1961. 9.1 That prior to insertion of Section 153A in the statute, the relevant provision for block assessment was under section 158BA of the Act, 1961. The erstwhile scheme of block assessment under section 1....
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....a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132-A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred ....
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....eassessment proceedings shall abate and the AO would assume the jurisdiction to assess or reassess the 'total income' for the entire six years period/block assessment period. The intention does not seem to be to re27 open the completed/unabated assessments, unless any incriminating material is found with respect to concerned assessment year falling within last six years preceding the search. Therefore, on true interpretation of Section 153A of the Act, 1961, in case of a search under section 132 or requisition under section 132A and during the search any incriminating material is found, even in case of unabated/completed assessment, the AO would have the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material collected during the search and other material which would include income declared in the returns, if any, furnished by the assessee as well as the undisclosed income. However, in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act, subject ....
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....ve, it is concluded as under: (i) that in case of search under section 132 or requisition under section 132A, the AO assumes the jurisdiction for block assessment under section 153A; (ii)all pending assessments/reassessments shall stand abated; (iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and (iv)in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under sections 147/148 of the Act,....
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.... addition not based on any incriminating material found during the course of search. It was held by the Bombay High Court that no addition can be made in respect of the assessment that has become final in the absence of incriminating material found during the course of search. The Bombay High Court referred to its earlier decision in case of CIT Vs. Murli Agro Products Ltd. (ITA No. 36 of 2009 dated 29/10/2010) and expressed its agreement with the earlier decision holding that the crucial words "search" and "requisition" appear in substantive provisions of section 153A and that would through light on the applicability of the provisions which is being enacted to a search or requisition and that its construction has to be read and understood accordingly. The Hon'ble Bombay High Court further affirmed the decision of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. Vs. DCIT [2012] 18 ITR (Trib) 106 (Mumbai) wherein it was held that the "incriminating material" in the context of the relevant provision means books of account, other documents found in the course of search but not produced in the course of original proceedings and secondly, the undisclosed income or pr....
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....he six years as provided in section 153A(1)(b) and reiterated in the 1st proviso to this section. The second proviso states that the assessment or reassessment pending on the date of initiation of the search or requisition shall abate. We find that there is no divergence of views in so far as the provision contained in section 153A till the 1st proviso. The divergence starts from the second proviso which states that pending assessment or reassessment on the date of initiation of search shall abate. This means that an assessment or reassessment pending on the date of initiation of search shall cease to exist and no further action shall be taken thereon. The assessment shall now be made u/s 153A. The case of Ld. Counsel for the assessee is that necessary corollary to this provision is that completed assessment shall not abate. These assessments become final except in so far and to the extent as undisclosed income is found in the course of search. On the other hand, it has been argued by the Ld. Standing Counsel that abatement of pending assessment is only for the purpose of avoiding two assessments for the same year, one being regular assessment and the other being assessment u/s 153....
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....e total income which was vested in him earlier independent of the search and which came to an end due to initiation of the search. 50. The provision contained in section 132 (1) empowers the officer to issue a warrant of search of the premises of a person where any one or more of conditions mentioned therein is or are satisfied, i.e. - (a) summons or notice has been issued to produce books of account or other documents but such books of account or documents have not been produced, (b) summons or notice has been or might be issued, he will not produce the books of account or other documents mentioned therein, or (c) he is in possession of any money or bullion etc. which represents wholly or partly the income or property which has not been and which would not be disclosed for the purpose of assessment, called as undisclosed income or property. We find that the provision in section 132 (1) does not use the word "incriminating document". Clauses (a) and (b) of section 132(1) employ the words "books of account or other documents". For harmonious interpretation of this provision with provision contained in section 153A, all the three conditions on satisfaction of which a warrant of sea....
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.... in the course of original assessment and found in the course of search in our humble opinion such books of account or other documents have to be taken into account while making assessment or reassessment of total income under the aforesaid provision. Similar position will obtain in a case where undisclosed income or undisclosed property has been found as a consequence of search. In other words, harmonious interpretation will produce the following results:- (a) In so far as pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s 153A merge into one and only one assessment for each assessment year shall be made separately on the basis of the findings of the search and any other material existing or brought on the record of the AO, (b) in respect of non-abated assessments, the assessment will be made on the basis of books of account or other documents not produced in the course of original assessment but found in the course of search, and undisclosed income or undisclosed property discovered in the course of search. 54. It may be mentioned here that Ld. Counsel for All Cargo Global Logistics Ltd. was questioned about the scope of pendi....
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....132 of the Act in the case of Hubtown Limited is incriminating or otherwise has to be tested based only on the satisfaction note recorded by the Assessing Officer/s. The contents of the said satisfaction note are the only item/material to be looked at in this regard and respondent cannot seek to augment, supplement or add to materials recorded to support the claim that incriminating material has been found. Further respondent cannot refer to any other documents or material to establish such a claim. We find support in (i) Ananta Landmark Pvt. Ltd. (Supra) and (ii) Jainam Investments (Supra), where the Courts have held that the question of the Assessing Officer's jurisdiction to undertake proceedings has to be tested/examined only on the basis of reasons recorded at the time of issuing a notice under Section 148 of the Act seeking to reopen an assessment. These reasons cannot be improved upon and/or supplemented much less substituted by affidavit and/or oral submission; (e) In the instant case, the satisfaction note dated 13th July 2021 (common for all Assessment Years) insofar it relates to Assessment Year 2017-2018 only records that: (i) an account of petitioner in the books o....
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....ly or partly the income or property which has not been disclosed for the purpose of assessment and discovered in the course of search. It can thus be stated that in case of unabated assessment, the reassessment can be made on the basis of the satisfaction note pursuant to which the search has been initiated and books of account or other documents not produced in the course of original assessment but found in the course of search which indicate undisclosed income or undisclosed property, and secondly, the reassessment can be made on the basis of the undisclosed income or undisclosed property which is physically found and discovered in the course of search. 18. Applying the aforesaid legal proposition in the instant case, we find that it is a case of completed/unabated assessment wherein the original return of income filed on 29/09/2012 stood processed under section 143(1) and accepted in absence of any notice under section 143(2) and statutory period of issuance of such notice stood expired well before the date of search which was conducted on 26/02/2016. 19. As per section 153A of the Act, once a search and seizure action is carried out, the AO has to assess or reassess the tot....
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....esn't have any access or possession thereof, it can be safely concluded that no documents or material has been found during the course of search either from the premises or the possession of the assessee and what to talk about any incriminating nature of such material found and seized. What has been found and seized is from the possession of third persons, who no doubt are part of the assessee's family and covered as part of the same search proceedings, but the same cannot be held as found during the course of search in case of the assessee. 21. Where the documents have been found from the locker of third persons during the course of search but belongs to the assessee, the satisfaction note of the Assessing officer of the third persons so searched assumes significance as the same alone will indicate the incriminating nature of such material so found belonging to the assessee during the course of search as held by the Bombay High Court in case of Ashok Commercial (supra) wherein it was held that the contents of the said satisfaction note are the only statement/material to be looked at and the Revenue cannot seek to augment, supplement or add to the material recorded to support the....
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....g the search. 24. Further, it is noted that during the financial year 2010-11 relevant to assessment year 2011-12, the assessee had purchased the shares wherein the payment had been made through normal banking channel and the transaction is duly reflected and disclosed in the bank statement of the assessee. The proceedings for Assessment Year 2011-12 were also reopened u/s 153A pursuant to search action and the reassessment proceedings have been completed u/s 153A r/w 143(3) vide order dated 29/12/2017 where the AO has not recorded any adverse findings regarding the aforesaid purchase of shares of M/s Maple Goods (P) Ltd even though the documents found and seized from the locker were in the knowledge of the Assessing officer and a specific show-cause notice dated 14/09/2017 regarding bogus LTCG has been issued by the AO and considering the submissions of the assessee, the transaction of purchase of the shares of M/s Maple Good (P) Ltd through the broker Shri S.K Khemka has been duly accepted by the AO. Therefore, where for assessment year 2011-12, the documents so found and seized from the locker have not been found as incriminating in nature by the Assessing officer and in that ....
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....inating in nature are not borne out of record and infact, the said documents corroborate and confirm the disclosed transaction of purchase of shares of Maple Good (P) Ltd by the assessee. Further, the fact that these documents have a direct bearing on the estimation of correct income of the assessee doesn't make them incriminating in nature as so held by the ld CIT(A). 26. Now, coming to statement of Shri S.K Khemka from whom assessee had purchased shares of Maple Good (P) Ltd, admittedly, the said statement was recorded on 13/03/2015 by the Investigation Wing, Calcutta in context of some other proceedings well before the date of search in case of the assessee which happened on 26/02/2016. As per the AO, the statement of Shri S.K Khemka is highly relevant to assessee's case as the assessee has purchased shares through the said broker. There is a difference between relevancy of material and incriminating nature of material found during the course of search. The material which could be relevant doesn't necessarily be held as incriminating in nature. In case of unabated assessment, what is required to be seen is whether there is any incriminating material unearthed during the course....
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....d statement of Shri S. K Khemka at the time of recording of the satisfaction whereby the authorization has been issued and the search warrant was issued whereby the search has been initiated in case of the assessee. Therefore, the statement of Shri S.K Khemka is availability of other material/documentation which has come in the knowledge and possession of the AO for the first time during the course of reassessment proceedings and therefore can't be referred to and relied upon by the AO to augment, supplement and add to the material found during the course of search in terms of the share certificates and contract notes and in terming the same as incriminating material found during the course of search in case of the assessee. The contents advanced by the ld CIT/DR therefore cannot be accepted. 29. In view of the aforesaid discussion and in the entirety of facts and circumstances of the case and respectfully following the dicta laid down by the Hon'ble Supreme Court, Hon'ble Delhi and Bombay High Court as well as Special Bench of the Tribunal, we are of the considered view that the addition of Rs 87,04,733/- made by the AO during the reassessment proceedings completed u/s 153A is n....