SH. NAVEEN SHIVHARE, ,GWALIOR vs. ITO.,-WARD-3(2), GWALIOR
Facts
The assessee filed returns which were processed under section 143(1). A search was conducted, and since no assessment proceedings were pending, the year was considered unabated. The Assessing Officer (AO) made additions based on bank deposits, household expenses, and estimated business income. The CIT(A) confirmed and enhanced these additions.
Held
The Tribunal held that the impugned additions were not based on any incriminating material found during the search. Following the Supreme Court's decision in Pr. CIT vs. Abhisar Buildwell Pvt. Ltd., it was ruled that for unabated assessments, additions cannot be made without incriminating material. Therefore, the additions made by the AO and enhancement by the CIT(A) were deleted.
Key Issues
Whether additions made in an unabated year, in the absence of incriminating material found during search, are sustainable.
Sections Cited
153A, 143(3), 143(1), 271(1)(c)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “DB” BENCH, AGRA
Before: HON’BLE SHRI SATBEER SINGH GODARA, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
IN THE INCOME TAX APPELLATE TRIBUNAL “DB” BENCH, AGRA BEFORE HON’BLE SHRI SATBEER SINGH GODARA, JM AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM 1. आयकरअपील सं. / ITA No.381/Agr/2013 (िनधा�रणवष� / Assessment Year: 2003-04) & 2. आयकरअपील सं. / ITA No.382/Agr/2013 (िनधा�रणवष� / Assessment Year: 2004-05) & 3. आयकरअपील सं. / ITA No.383/Agr/2013 (िनधा�रणवष� / Assessment Year: 2005-06) & 4. आयकरअपील सं. / ITA No.384/Agr/2013 (िनधा�रणवष� / Assessment Year: 2006-07) & 5. आयकरअपील सं. / ITA No.318/Agr/2018 (िनधा�रणवष� / Assessment Year: 2003-04) & 6. आयकरअपील सं. / ITA No.319/Agr/2018 (िनधा�रणवष� / Assessment Year: 2004-05) & 7. आयकरअपील सं. / ITA No.380/Agr/2018 (िनधा�रणवष� / Assessment Year: 2005-06) & 8. आयकरअपील सं. / ITA No.381/Agr/2018 (िनधा�रणवष� / Assessment Year: 2006-07) Shri Naveen Shivhare बनाम/ ACIT, Circle-3, M-40, Gandhi Nagar, Gwalior. Gwalior. Vs. �थायीलेखासं./जीआइआरसं./PAN/GIR No. AEMPG-8216-Z (अपीलाथ�/Appellant) : (��थ� / Respondent) अपीलाथ�कीओरसे/ Appellant by : Sh. Rajendra Sharma, Adv. – Ld. AR ��थ�कीओरसे/Respondent by : Dr. Arun Kumar Yadav – Ld. CIT-DR
सुनवाईकीतारीख/Date of Hearing : 19-02-2025 घोषणाकीतारीख /Date of Pronouncement : 23-04-2025 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid quantum appeals as well as penalty appeals by assessee for Assessment Years (AY) 2003-04 to 2006-07 arises out of separate orders of first appellate authority. First, we take up quantum appeal ITA No.381/Agr/2013 for AY 2003-04 which arises out of an order passed by learned Commissioner of Income Tax (Appeals), Gwalior [CIT(A)] on 22- 11-2013 in the matter of an assessment framed by Ld. Assessing Officer [AO] u/s. 153A r.w.s. 143(3) of the Act on 20-12-2010. 2. The Ld. AR argued that this year is unabated year and the impugned additions are not based on any incriminating material as found during search. Therefore, the impugned additions are not sustainable as per recent decision of Hon’ble Apex Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (149 Taxmann.com 399). The Ld. CIT-DR controverted the arguments of Ld. AR. Having heard rival submissions and upon perusal of case records, our adjudication would be as under. 3. It emerges that the assessee filed return of income on 26-12-2003 which was processed u/s 143(1). The assessee was subjected to search on 12-05-2008 and admittedly, no assessment proceedings were pending against the assessee for this year. Accordingly, this year was an unabated year. In the assessment order, Ld. AO made addition of cash deposit in bank account for Rs.5.51 Lacs, addition of low household personal expenses for Rs.0.30 Lacs and estimated business income of Rs.5 Lacs. The Ld. CIT(A) not only confirmed the assessment but also
enhanced income by adding LIC premium and opening capital balance. Aggrieved, the assessee is in further appeal before us. 4. It is quite clear that the impugned additions are not based on any incriminating material as found during the course of search on assessee. This is unabated year. This being so, the ratio of cited decision of Hon’ble Apex Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (149 Taxmann.com 399) would squarely apply to the fact of this case. In this decision, it was held that in respect of completed assessments / unabated assessments, no addition could be made by Assessing Officer in the absence of any incriminating material found during course of search under section 132 or requisition made under section 132A. Respectfully following the same, we delete the impugned addition as made by Ld. AO and also the enhancement as made by Ld. CIT(A). The appeal succeeds on this foremost legal ground alone. 5. It is admitted position that the nature of additions in AYs 2004-05 to 2006-07 are quite similar. All these years are unabated years. Therefore, taking the same view, we delete the impugned additions for all these years as well. All these appeals stand allowed. 6. Against quantum additions, the assessee has been saddled with consequential penalty u/s 271(1)(c) in all the four years. Since we have deleted quantum additions, these penalties would not survive. The assessee succeeds in the penalty appeals as well.
All the appeals stand allowed in terms of our above order. Order pronounced u/r 34(4) of Income Tax (Appellate Tribunal) Rules, 1963.
Sd/- Sd/- (SATBEER SINGH GODARA) (MANOJ KUMAR AGGARWAL) �ाियक सद� /JUDICIAL MEMBER लेखा सद� /ACCOUNTANT MEMBER Dated: 23-04-2025 आदेश की �ितिलिप अ�ेिषत / Copy of the Order forwarded to : 1. अपीलाथ�/Appellant 2. ��थ�/Respondent 3. आयकरआयु�/CIT 4. िवभागीय�ितिनिध/DR 5. गाड�फाईल/GF ASSISTANT REGISTRAR
ITAT AGRA
