K.K BUILDERS,KANNUR vs. DEPUTY COMMISSIONER OF INCOME TAX ,CENTRAL CIRCLE 2, CALICUT. , CALICUT

Being aggrieved, the appellant is in appeal before us in the present appeal.

At the outset there is a delay in filing the appeal by 168 days. The appellant had filed a petition seeing condonation of delay on the ground that it is under the bona fide belief that the CIT(A) would grant relief based on the decision of the Hon'ble Supreme Court in the case of CIT v. Abhisar Buildwell P. Ltd. [2023] 454 ITR 212 (SC) pursuant to the application moved by the appellant u/s. 154 of the Act. After rejection of 154 application on 20.12.2023 appeal was filed immediately on 21.12.2023 before this Tribunal. Thus, it is prayed that the delay had occurred on pursuit of alternative remedy.

On the other hand, the learned Sr. DR vehemently opposed condonation of delay.

We have heard the rival contentions and perused the material available on record. In the present case the order passed by the CIT(A) was served on the appellant on 16.03.2023. The appeal is required to be filed within a period of 60 days, i.e. on or before 15.05.2023 whereas the appeal was filed on 30.10.2023, thus resulting in a delay of 168 days. It is stated before us that the delay had occurred on account of pursuing alternative remedy u/s. 154 of & 759/Coch/2023 K.K. Builders the Act before the CIT. The said application u/s. 154 appears to have been filed on 05.04.2023 vide application dated 03.04.2023. The said application came to be disposed by the learned CIT vide order dated 17.10.2023. No doubt the pursuing other alternative remedy constitutes a reasonable sufficient cause for delay in filing the appeal provided the appellant was prosecuting other proceedings bonafidely and not proceeding with some ulterior motive or negligence in prosecuting other case or was deliberatively delaying the filing of the appeal. In the present case no material was placed before us to establish the bonafide in prosecuting the alternative remedy. The very fact the CIT has dismissed the application u/s. 154 would clearly demonstrate it is a vexatious proceedings. Furthermore, despite pursuing alternative remedy, nothing prevented the appellant from filing the appeal before this Tribunal in time. In this circumstance, we are of the considered opinion that the appellant had not made out sufficient reasonable cause for filing the appeal in time. Accordingly, it is not a fit case for condoning the delay. Therefore, we are inclined to condone the delay. Appeal dismissed on account of delay and latches.

Being aggrieved, an appeal was filed before the CIT(A), contending that in the absence of seized material pertaining to the assessment year under consideration, no notice u/s. 154 can be made. It is further contended that granting of approval by the ld. JCIT u/s. 153D is illegal as it was granted without application of mind. He also challenged the additions on merit. The learned CIT(A) placing reliance on the decision of the Hon'ble Kerala High Court in the case of G.N. Gopakumar v. CIT [2016] 75 traxmann.com 215 upheld the validity of issue of notice u/s. 153A even in the absence of incriminating material. Similarly, the CIT(A) upheld validity of approval granted by CIT u/s. 153D of the Act. The CIT(A) also sustained the addition by holding that the additions were made on the basis of seized material and the statement recorded from the authorised persons.

Being aggrieved, the appellant is in appeal before us in the present appeal.

The learned counsel for the assessee contended that; (i) the issue of notice u/s. 153A is void ab initio for want of incriminating material found in the course of search and seizure proceedings; (ii) granting of approval u/s. 153D by the JCIT is in violation of law as the approval was granted without any application of mind; and (iii)

On the other hand, the ld. CIT-DR vehemently opposed the above submissions and submitted that there was incriminating material found as a result of search and seizure operations and statement of the appellant was recorded u/s. 132(4) of the Act admitting that the appellant was indulged in concealing income. He further submitted that the ratio of the decision in the case of decision of the Hon'ble Supreme Court in the case of Abhisar Buildwell P. Ltd. (supra) has no application to the facts of the present case, inasmuch as, there was very much incriminating material found as a result of search and seizure action.

We have heard the rival contentions and perused the material available on record. The issue that arises for our consideration is whether the AO is justified in making additions in pursuant to the notice issued u/s. 153A of the Act. It is settled position of law that in the absence of incriminating material found as a result of search and seizure action no addition can be made as held by the Hon'ble Supreme Court in the case of Abhisar Buildwell P. Ltd. (supra). In the present case, a mere perusal of the assessment order it would be apparent that the AO made a reference to the sized material as well as the statement recorded from the appellant u/s. 132(4) of the Act.

In the light of the above discussion, the contentions raised by the assessee are devoid of any merit. Accordingly the appeal is dismissed. The appellant had not made any pleadings on the merits of the additions. Therefore, the appeal filed by the assessee deserves to be dismissed.

In the result, the appeals filed by the assessee stand dismissed.