SH. MUKESH MITTAL,PANCHKULA vs. ACIT, CC-II, CHANDIGARH

Per Bench:

The present appeals have been preferred by the assessee against the separate orders of the CIT(A) (Central), Gurgaon dated 04.10.2013. 2. All the appeals are time barred by 397 days. Separate applications for condonation of delay have also been filed. It has been pleaded in the applications for condonation of delay that the impugned orders of the CIT(A) were received by the assessee on 15.01.2015 which were further given/forwarded to the old counsel of the assessee for filing further appeals to this Tribunal. The assessee was under bonafide belief that the old counsel of the assessee had already filed the appeals.

However, the then counsel of the assessee neither

informed the assessee about the non filing of the appeals

nor given any other information in this respect. Then,

thereafter the assessee changed his counsel. The new

counsel engaged by the assessee looked into the matter

and found that the appeals for the aforesaid assessment

years have not been filed. The assessee, thereafter

contacted his old counsel but the old counsel did not give any information in this respect to the assessee.

Thereafter, it was verified by the new counsel that the appeals for the aforesaid assessment years i.e. 2005-06,

2006-07 and 2007-08 remained to the filed. It has,

therefore, been pleaded that non filing of the appeals

within the statutory limit was not intentional but due to the aforesaid non-cooperative attitude of the old counsel

of the assessee.

our attention to an order dated 10.11.2017 of this Tribunal passed in assessee's own case in M.A.No.

11/CHD/2017 & orts. whereby the appeals dismissed ex-

parte of the assessee for assessment year 2008-09 and 2009-10 were recalled. The plea taken in the Miscellaneous Application was that a dispute was going

on between the assessee and his old counsel and that is why he did not appear on the date of hearing in those

appeals. Thereafter, the assessee engaged his new

counsel and in view of the above submissions which were supported by the affidavit of the assessee, the ex-parte

dismissal order in appeals dated 18.11.2015 was recalled

vide order dated 10.11.2017. In view of this, we are convinced that the delay in filing the appeals for the assessment years under consideration is un-intentional

but due to the aforesaid factors as pleaded above. In view of this, the delay in filing of these appeals is hereby

condoned and we proceed to decide the appeals on merits.

were made by the Assessing Officer in the course of assessment proceedings carried out u/s 153A read with Section 143(3) of the Act pursuant to search action

carried out at the premises of the assessee by the Income

Tax authorities on 16.01.2009. It has been further

pleaded that on the date of search, the original

assessment proceedings already stood completed and the assessment for none of the above noted assessment years

was pending. Even the limitation for issuing of separate

notices u/s 143(2) of the Act had expired. No incrimination material was found during the search

action and hence, no additions were warranted under the assessment carried out u/s 153 of the Act. He in this respect has relied upon various judicial decisions

including the decision of the in the Hon'ble Bombay High

Court in the case of ‘CIT Vs. Murli Agro Products Pvt Ltd’, (2014) 49 taxman.com 172 (Bom.), ITA No.36 of 2009 and in the case of ‘CIT Vs. Continental Warehousing Corporation’

ITA No. 523 of 2013 reported in (2015) 279 CTR 0389

(Bombay) and of the Hon'ble Delhi High Court in the case of ‘CIT Vs. Kabul Chawla’ 234 Taxman 300 (Delhi) and subsequent decision of the Delhi High Court in the case of ‘Principal CIT Vs. Meeta Gutgutia Prop M/s Ferns ‘N’ Petals”,

ITA 306/2017 and others decided vide order dated 25.5.201. 5. The Ld. DR has also been fair enough to admit that no incriminating material was found in the case during

the search action and that the facts and issue involved

are squarely covered by the aforesaid decisions.

Admittedly, the assessment for the year under consideration

stood completed on the date of search. No incriminating

material whatsoever in relation to the share application

money was found. It has been time and again held by the various High Courts that if no incriminating material is found during the search action, the addition in the case of already concluded assessment cannot be made while framing

assessment u/s 153A of the Act. Reliance in this respect can

be placed in the case of ‘CIT Vs. Continental Warehousing

Corporation’ ITA No. 523 of 2013 reported in (2015) 279 CTR

0389 (Bombay) and of the Hon'ble Delhi High Court in the case of ‘CIT Vs. Kabul Chawla’ 234 Taxman 300 (Delhi).

by the aforesaid decisions. The aforesaid decisions have been further affirmed by the decision of the Delhi High Court in the case of ‘Principal CIT Vs. Meeta Gutgutia Prop M/s Ferns

‘N’ Petals”, ITA 306/2017 and others decided vide order dated

the impugned additions made/confirmed by the lower

authorities for one assessment year under consideration are hereby, ordered to be deleted.

Order pronounced in the Open Court. ( डा. बी.आर.आर. कुमार) ( "ी संजय गग" ) (Dr. B.R.R.KUMAR ) (SANJAY GARG) लेखा सद"य/ Accountant Member "या"यक सद"य/ Judicial Member Dated: 05.11.2018 ‘Poonam’ Copy to: