TaxTMI 
TaxTMI 
2025 (11) TMI 412
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....ities below. The assessee filed return of income on 19.12.2015 declaring income of Rs. 10,14,890/- and the return was processed u/s 143(1) on 04.01.2016. Search and seizure operations were carried out u/s 132 of the Act on 19.12.2019 in the Stonex Group of cases, accordingly, warrant under 132 was duly executed on the assessee's locker no.679 held in HDFC Bank jointly with his wife M/s Manju Devi Aggarwal in Union Bank of India. Subsequently, assessment u/s 153A was made on 30.09.2021 making addition of Rs. 19,20,877/- u/s 68 of the Act, denying long term capital gain claimed by the assessee u/s 10(38) of the Act in his return of income. 3. On appeal the Ld. CIT(Appeals) deleted the addition on the ground that the addition was not made b....
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..../- was made by the AO u/s 68 as unexplained credit. 7.1 In the grounds of appeal, as well as the written submissions, appellant has claimed that the case of the appellant is that of an unabated assessment and on the date of search no assessment proceedings were pending. It was further submitted by the appellant that no incriminating material was found during the course of search and the present addition has been made solely on the basis of claim made in the return of income. 7.2 The appellant has also sought to place reliance upon the order of Hon'ble Supreme of PCIT Vs Abhisar Build well Pvt. Ltd. in Civil Appeal No. 6580 of 2021 dated 24.12.2023 wherein it was held that if no assessment proceedings are pending as on the ....
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....uring search on this issue. In this connection it is significant to make reference to the decision of Hon'ble Supreme Court in the case of M/s Abhisar Buildwell Pvt. Ltd., the relevant extract of which is reproduced as under: "11. As per the provisions of Section 153A, in case of a search under Section 132 or requisition under Section 132A, the AO gets the jurisdiction to assess or reassess the 'total income' in respect of each assessment year falling within six assessment years. However, it is required to be noted that as per the second proviso to Section 153A, the assessment or reassessment, if any, relating to any assessment year years pending on the date of initiation of the search under Section 132 or making of requisition und....
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....lude 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 147/148 of the Act, subject to fulfilment of the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy. Therefore, even in case of block assessment under section 153A and in case of unabated/ completed assessment and in case no incriminating material is found during the search, the power of the Revenue to have the reassessment under sections 147/148 of the Act has to b....
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....ng the said provisions, which is not permissible under the law. 13. For the reasons stated hereinabove, 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) and the decisions of the other High Courts taking the view that no addition can be made in respect of the completed assessments in absence of any incriminating material. 14. In view of the above and for the reasons stated above, 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 assessme....
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....terial found during the course of search or requisition of documents. Thus, presence of incriminating for each assessment year is a sine qua non for framing an assessment under section 153A of the Act. In the present case the assessment has been framed in spite the fact that there was no incriminating material qua the year under consideration which is against the settled position of' law that additions u/s 153A of the Act can be made only on the basis of incriminating material etc. found during the course of search as laid down by the Honorable Supreme Court. There is no concrete material or any detail in the assessment order which support the stand of AO that M/s Alankit Ltd. is a penny stock company. The addition seems to have been ma....