TaxTMI 
TaxTMI 
2022 (12) TMI 1579
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....w, the Id. CIT(A) has erred in holding that any addition during the assessment u/s. 153C has to be confined to the incriminating material found during the course of search u/s. 132(1) of the Act, even though, there is no such stipulation in sec. 153C of the Act. 2. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in not appreciating that sec. 153C requires a notice to be issued requiring the assessee to furnish his return of income in respect of each assessment year falling within six assessment years and to assess or reassess the total income of those six assessment years, and that the scheme of assessment or reassessment of the total income of a person searched will be brought to naught if no addition is allowed to be made for those six assessment years in the absence of any seized incriminating material. 3. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in not appreciating that while computation of undisclosed income of the block period U/S.158BB was to be made on the basis of evidence found as a result of search or requisition of books of accounts, there is no such stipulation in sec....
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....ned CIT(A) erred in holding that the assessment/reassessment framed under section under section 153A/153C of the Act is limited to the extent of incriminating materials found in the course of search. 4. The facts in brief are that the assessee is an individual and deriving income from different sources. The assessee is an owner of a residential unit bearing bungalow number 29, having land area of 254 Sq. Mtrs. and buildup area of 209 Sq. Mtrs. at erstwhile society namely Raj Villa Co-operative Housing Society also known as "Shahjanand Bungalow" located at Thaltej Ahmedabad. In the FY 2015-16, the assessee along with all the other members of erstwhile society "Shahjanand Bungalow" sold their bungalow including land to "Shaligram Infrastructure LLP" in which the assessee is a partner. As per registered document, the assessee sold his unit for Rs. 1.4 crore only. 4.1 Subsequently, there was a search and seizure action under section 132 of the Act dated 06-03-2018 was carried at the premises of Shaligram, Satyam and Sangani group of concern and the residence of assessee was also covered under such search action. As a result of search, the proceedings under section 153A of the Act....
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.... There is no mentioned of his name or any information in relation to the transaction carried out by him. The AO initiated proceeding under section 153A of the Act in his case merely on the basis of assumption, surmises and conjecture. The AO without any material on record and without considering the fact that transaction carried by the him is independent transaction assumed that if "Shri Ashwin B Dudhat" has received on money then the assessee should also have received on money. Therefore, the assessment made under section 153A of the Act is based on assumption and surmises and being completed/ unabated assessment year, the same needs to be quashed. The Assessee in support of its contention placed his reliance on the judgment of Hon'ble Gujarat High Court in case of Saumya Construction (2016) 387 ITR 529 (Guj.) and judgment of Hon'ble Delhi High Court in case of Kabul Chawla reported in 61 taxmann.com 412. 7. The learned CIT(A) after considering the facts in totality quashed the assessment order framed under section 153A read with section 143(3) of the Act by observing as under: 7.12 The appellant has challenged the addition made by the AO relying upon the various judgm....
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...., found that there was no material of incriminating nature found in the course of the search with reference to year under consideration. Therefore, the year under consideration being unabated/completed assessment year any addition made in the absence of incriminating material is not justified. 11.1 In this regard we find that it has been settled by various Hon'ble Court including Hon'ble Jurisdictional High Court that the completed assessment cannot be disturbed in the absence of any incriminating material/ documents whereas the assessment/ reassessment can be made with respect to abated assessment years. The word 'assess' in Section 153A/153C of the Act is relatable to abated proceedings (i.e. those pending as on the date of search) and the word 'reassess' to the completed assessment proceedings. The Hon'ble Gujarat High Court in the case of Saumya Construction (supra) has held that there cannot be any addition of regular items shown in the books of accounts until and unless there were certain materials of incriminating nature found during the course of search. The word incriminating has not been defined under the Act but it refers to those materials/ documents/....