TaxTMI 
TaxTMI 
2025 (3) TMI 1265
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....olding the AO's action in treating the long term capital gain exempted u/s 10(38) as undisclosed income. 3. That on the facts and circumstances of the case, both the AO and ld. CIT (A) erred in rejecting the documentary evidences found and seized during the course of search from which it was clearly manifest that the assessee certainly purchased and sale equity shares of scripts Sun Asian. No incriminating documents found during the course of search proceedings. 4. That on the facts and circumstances of the case, both the AO and ld. CIT (A) erred have not brought on record any concrete material on record before holding the LTCG claimed at Rs. 48,92,782/- u/s 10(38) of the Act as bogus and entire addition is based on hypothetical presumption. Thus, the addition so made deserves to be deleted. 5. The appellant craves leave to add or to amend the foregoing ground of appeal, if it becomes necessary to do so in the interest of justice. 3. The brief facts of the case are that the assessee is an Individual who had filed his original return of income under section 139(1) of the Income Tax Act, 1961 on 31.07.2014 for the assessment year 2014-15 declaring total ....
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....ound relates to passing the order under section 153A read with section 143(3) of the IT Act, 1961 without appreciating true and correct facts of the case and documentary evidences brought on record by the assessee. 5. Aggrieved from the order of the ld. CIT(A) the assessee has preferred this appeal before us on the grounds as reiterated in para 2 above. In support of the grounds of appeal the ld. AR of the assessee has relied upon the following written submission:- "That search actions were carried out at the residential as well as business premises of assessee and his family on 17.12.2015. (AY 2016-17). The impugned order of assessment dated 28.12.2017 passed by the Assessing Officer is wholly incorrect in law as well as facts and circumstances of the case and without jurisdiction, therefore, the same is liable to be cancelled. The appellant respectfully submits that the observations, findings and/or allegations made by the Assessing Officer in his order of assessment and the inferences and conclusions drawn by him based on these findings are factually incorrect, patently erroneous, based on mere assumptions and presumptions, surmises and conjectures, pure gue....
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....ent has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in the exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In the present case, no certain incriminating documents or loose papers related to the appellant were found and seized during the course of search. In case of assessment under section153A, the addition or disallowance can only be made from the materials found during the time of search. It is in violation of the principles of natural justice, arbitrary, mechanical and without any independent application of mind and the AO has not discharged the burden of proof, proving that the income determined and sought to be taxed were not from the materials seized during the time of search. Since in the instant case, no incriminating materials were seized during the time of search and therefore, no addition or disallowance can be made in an assessment under section 153A of the Act and, therefo....
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..../unabated assessments can be reopened by Assessing Officer in exercise of powers under section 147/148 subject to fulfillment of conditions as envisaged/mentioned under section 147/148 and those powers are saved - Held, yes [Paras 8, 12 to 14] [In favour of assessee]" b. CIT v. continental Warehousing Corpn. Ltd. [2015] 58 taxmann.com 78/232 Taxman 270/374 ITR 645 (Bom.) The Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra), wherein considering the judgment of the Special Bench of the Mumbai Tribunal in the case of All Cargo Global Logistics 137 ITD 287 (SB) (Mum.), considered this issue that, once assessment has attained finality, then the assessing officer while passing independent assessment order under section 153A/143(3) of the Act could not disturb the assessment order which has attained finality unless the material gathered in the course of search under section 132/153A of the Act established that the finality attained in the assessment were contrary to the facts unearthed during the course of search. c. CIT vs. Kabul Chawla [2015] 61 taxmann.com 412/234 Taxman 300/[2016] 380 ITR 573 (Delhi) ....
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....itions of Rs. 48,49,782/- made during the course of assessment proceedings; without any incriminating documents, may be held as erroneous and the same needs to be reversed." 6. On the other hand, the ld. DR relied on the order of the ld. CIT (A). The ld. D/R in his written submission at para 4 submitted as under :- "4. It is noted that CIT (A) has not recorded his specific findings on the ground raised before him regarding the proceedings u/s 153A." He, further, cited the following case laws for consideration : Smt. Asha Rajendra Gupta vs. ACIT In ITA No. 7712/Mum/2019 Aakruti Ketan Mehta vs. ITO dated 31.01.2024 Meenu Ajay Pathak vs. ITO dated 18.07.2023. ITO 24(2)(1), Mumbai, Piramal vs. Kailash Chandra Gupta (HUF) In ITA No. 4013/Mum/2023 dated 26.07.2024. 7. We have heard the rival contentions, perused the material available on record and gone through the orders of the lower authorities and the case laws cited by both the parties. Before us, the ld. A/R for the assessee has contended that the impugned assessment order is nullity, being without jurisdiction, in as much as, even when no incriminating ma....
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....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, subject to fulfillment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved." Further, following the decision of Apex Court, the Coordinate Bench of Tribunal Jodhpur in the case of Pradeep Soni, Pushpa Devi Soni, Leela Devi, Parvati vs. DCIT, CENTRAL CIRCLE-01, JODHPUR {2024 (2) TMI 1162 - ITAT JODHPUR} {ITA Nos. 530/Jodh/2023, 531/Jodh/2023, 532/Jodh/2023 and 533/Jodh/2023} has held that: "Merely the statement cannot be made base to make the addition and the decision of the apex court that in search assessment u/s 153A, AO cannot assess or reassess the total income filed under s. 153A of the Act unless some incriminating material was found during the search. Revenue has not demonstrated the nature of material found in the course of search which led to impugned additions in the absence of any incriminating material. The cost of land incurred and recorded in the books has been duly accepted and reduced from the fair value derived by the valuer in the order passed under sect....
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.... 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 this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending asses....