SHILAK RAM,HARYANA vs. ITO WARD 4, ROHTAK

taken by the appellant that the assessment year under consideration is an unabated assessment and thus no addition can be made in the absence of any Incriminating documents found during search.

3. That the CIT(Appeals) has failed to adjudicate the 0 ground of appeal taken by the appellant that the order passed u/s 254/153A/143(3) of the IT Act by the AO is vitiated in law as the AO has failed to consider the specific and clear directions given by the Hon'ble ITAT in its set-aside order dated 27.09.2022 that the only issue which is to be examined by the AO is the availability of any incriminating material found during the course of search Vis-a Vis to the addition as per the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla. 3.1 That the CIT(Appeals) was incorrect in holding in the ex-parte appellate order that appellant failed to bring any facts on records to prove the genuineness of entries credited in suspense account without considering the order of the Hon'ble ITAT that only issue which is to be verified by the AO is the availability of any incriminating documents vis-à-vis to the impugned addition and since the AO has failed to pointed out any such incriminating material, no addition can be made pursuant to the directions given by the Hon'ble ITAT.

4. That the appellant craves leave to add, amend, and 0 alter any of the grounds of appeal at the time of hearing or earlier.”

5. At the outset, it is seen that the appeal of the assessee was decided ex-parte by Ld. CIT(A) as the assessee has failed to appear and file the submissions before the Ld. CIT(A). It is further seen that the claim of the assessee was that assessment order was passed without following the directions of Co-ordinate Bench in the first round of proceedings in terms of its order dated 27.09.2022 wherein the Co-ordinate Bench has directed the AO to verify whether the additions made were passed on any incriminating material found as a result of search.

6. Heard the parties and perused the material available on record. From the perusal of the impugned assessment order, we find that the AO has not referred any incriminating material found and seized as a result of search and made the addition towards “suspense account” appearing in the Balance Sheet which were stated to have been prepared on the basis of the bank entries and other assets owned by the assessee. As all none of the assets and bank accounts are not the incriminating material and the Balance Sheet prepared is duly backed by the books of accounts where due to non-availability of the explanation of the credit entries, respective amounts were taken to suspense account. Therefore, admittedly, we find that there was no incriminating material brought on record based on which the additions could be made in hands of the assessee in the order passed u/s 153A of the Act which are non-abated assessment years. We find that the directions of the Co-ordinate Bench given by its order in to 8926/Del/2019 were not followed property. The Hon’ble Supreme Court in the case of PCIT vs. Abhisar Buildwell reported in [2023] 454 ITR 212 (SC) as held 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 assessments/reassessments shall stand abated; (iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and (iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act, 1961. to 13/Del/2025 Dinesh Kumar vs. DCIT However, the completed/unabated assessments can be re- opened by the AO in exercise of powers under sections 147/148 of the Act, subject to fulfillment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs."

taken by the assessee are allowed.

10. In the result appeal of the assessee is allowed. for Assessment Year 2010-11.

11. As admitted by both the parties before us, the facts as in the present appeal are identical to the facts in Assessment Year 2008-09 in ITA No.3311/Del/2025. While deciding the appeal of the assessee for Assessment Year 2008-09 in we have held that no addition could be made in the orders passed u/s 153A without referring to any incriminating material in the assessment year which is non-abated year. In this year also, it is seen that addition of Rs.40,000/- was made by the AO u/s 68 on account of credit entries appearing in the Balance Sheet filed by the assessee. As there was no incriminating material referred for making such addition, thus, by following the decision in assessee’s own case for Assessment Year 2008-09 in ITA No.3311/Del/2025 (supra), which is applied mutatis mutandis towards the present facts and accordingly, we direct the AO to deleted the additions. All the grounds of appeal of the assessee are thus allowed.