DCIT, CENTRAL CEICLE-1(4), KOLKATA, KOLKATA vs. JUPITER INTERNATIONAL LIMITED, KOLKATA

At the outset, we observe from the appeal folder that there is a delay of 37 days in filing the appeal by the department and in support of this a condonation petition was filed. It was stated in the condonation petition that the delay has occurred due to obtaining the administrative approval from the competent authorities, which took quite a long time

After hearing the rival contentions and perusing the materials available on record, we find that a search action was conducted on the assessee on 24.03.2015 and the assessment year involved is 2009-10. Apparently, no proceedings were pending on the date of search and the time period to issue u/s 143(2) of the Act has also expired. Therefore, the assessment in unabated assessment on the date of search and in terms of provisions of Section 153A of the Act, the ld. AO has jurisdiction to make any addition to the income of the assessee only on the basis of sized incriminating material and not otherwise. In the present case, the ld. AO has referred to the statement of the Alok Garodia for making the statement by treating the same as incriminating material whereas as a matter of fact the incriminating material cannot be in the form of statement of the third party. Now, the issue has been settled by the Hon'ble Apex Court decision in the case of Abhisar Buildwell P. ltd. (Supra), wherein the Hon'ble Apex Court has settled once and for all that in an unabated assessment year, the ld. AO has no jurisdiction to make the addition unless there is incriminating material found and seized during the course of search qua the said addition. In our opinion, the ld. CIT (A) has passed a very reasoned and speaking

In the result, the appeal of the Revenue is dismissed.