SANGEETA KAPOOR,NEW DELHI vs. DCIT, CENTRAL CIRCLE- II, FARIDABAD

O R D E R PER PRASHANT MAHARISHI, A. M. 1. This appeal is filed by the assessee against the order dated 30.01.2018 passed by the ld. Commissioner of Income Tax (Appeals)-2, Gurgaon, for assessment year 2010-11 raising the following grounds of appeal:-

“ 1. That having regard to the fact and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction and issuing of notice u/s 153 A of the Act.

2. That in any case and in any view of the matter, the assessment framed under section 153A(l)(a) of the Act, is bad in law and against the facts and circumstances of the case.

5. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in passing the impugned order without giving adequate opportunity of being heard.”

3. The assessee preferred an appeal before the learned CIT(A). The ld CIT(A) noted that the facts of the case are similar to the assessment year 2008 – 09 and therefore he confirmed the disallowance of ₹ 329,000 on account of cash deposited in the bank account as alleged income from undisclosed sources. Accordingly, appeal of the assessee was dismissed. Before the learned CIT(A) the case was also fixed for assessment year 2008-09 whereas the issue of cash deposit of ₹ 247,240 were the challenge to the assessment order passed u/s 153A was also made which was dismissed by him. 4. The learned Authorised Representative submitted a detailed paper book stating that return of income has been filed by the assessee u/s 139 (1) on 06/08/2010 for assessment year 2010-11 and subsequently the return was also filed u/s 153A of the income tax act on 09/10/2010 for assessment year 2010-11. He further relied heavily on the decision of the Hon’ble Delhi High Court in case of CIT Vs. Kabul Chawla 380 ITR 573 as well as the decision in case of CIT Vs. Meeta Gutgutia 257 taxman 441 of Hon’ble Supreme Court as well as of the Hon’ble Delhi High Court reported in 395 ITR 526. He further relied on the decision of the coordinate bench in case of Sh. Bishan Bansal Vs. DCIT in ITA number 1187/Del/2017 dated 28.02.2020 and Praveen Kumar Kapoor Vs. DCIT in – 2658/Del/2018 dated 26th July 2021, he further relied upon the decision of the Hon’ble Delhi High Court in case of Cintel India Ltd. Vs. DC 397 ITR 416. His main contention was that where notice u/s 143(2) was not issued within a period of six months from date of filing of the return, the return filed would become final and no scrutiny proceedings could be started in respect of the said return; and therefore, the assessment pursuant to the search would have been made only on unearthing any incriminating document found during the course of search. He submitted that Page | 2 in the assessment order as well as in the order of the ld CIT(A) there is no mention of any incriminating material found during the course of search. He submitted that the bank account and his regular books of account which was not found during the course of the search but was perused during the course of assessment proceedings and therefore the addition made by the learned Assessing Officer deserves to be deleted. He further, referred to the order of the learned CIT(A) stating that before him this argument was raised but he rejected the contention that the decision of the Hon’ble Delhi High Court was only with the respect when the assessment proceedings has awaited. Therefore, he held that when the assessment is not abated the assessment u/s 153A can only be done on the basis of incriminating material found during the course of search. In the present case, according to him as no assessment has been completed earlier therefore, the appellant case is not covered by the decision of the Hon’ble Delhi High Court in case of CIT Vs. Kabul Chawla (supra) and it would not apply to the facts of this case.