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Income Tax Appellate Tribunal, DIVISION BENCH, ‘A’ CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the Revenue against
the order dated 31/3/2017 of the Commissioner of Income Tax
[hereinafter referred to as CIT(A)]-3, Gurgaon.
Though number of grounds have been taken by the Department
in its appeal, but the Revenue is mainly aggrieved by the action of
the CIT(A) in deleting the addition made by the Assessing officer in
the assessment proceedings carried out u/s 153A of the Income-tax
Act, 1961 (in short 'the Act') on the ground that no incriminating
material was found during search action carried out at the premises
of the assessee on 26.5.2011 u/s 132 of the Act.
ITA No.993/Chd/2017- Sh. AKJ Portfolio P. Ltd 2
At the outset, Ld. Counsel for the assessee has submitted that
the issue raised in this appeal of the Department is covered in favour
of the assessee by numerous decisions of the High Courts. He, in
this respect has brought our attention to the copy of the ‘Panchnama’
to say that no incriminating material warranting any addition was
found during the search action.
On the last date of hearing, the Ld. DR was directed to confirm
from the Assessing officer as to whether any incriminating material
was found during search action, to which the Ld. DR has relied upon
a letter dated 29.3.2018, which has been received from the Assessing
officer, wherein, it has been confirmed that the assessment u/s 153A
of the Act in this case is not based on any incriminating documents
found during the survey. The Ld. Counsel for the assessee has further
invited our attention to the impugned order of the CIT(A) and has
stated that the Ld. CIT(A) had deleted the addition so made by the
Assessing officer observing that pursuant to the filing of the return
by the assessee, the original assessment proceedings already stood
concluded on the date of search and that no assessment / re-
assessment was pending on the date of search. The Ld. CIT(A) has
relied upon the decision of the Coordinate Bench of the Tribunal in
the case of ‘M/s Mala Builders Pvt Ltd Vs. ACIT’ ITA Nos. 433 to
437/Chd/2014, wherein the Tribunal has further relied upon the
decision of 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)
ITA No.993/Chd/2017- Sh. AKJ Portfolio P. Ltd 3
279 CTR 0389 (Bombay) and on the case of Hon'ble Delhi High
Court in the case of ‘CIT Vs. Kabul Chawla’ 234 Taxman 300 (Delhi)
wherein the Hon'ble High Courts have been unanimous to hold that in
the absence of any incriminating material found during the search
action, when there was no pending assessment which can be said to
have abated on the date of search, the additions cannot be made.
When Ld. DR was confronted to the above findings made by the Ld.
CIT(A), the Ld. DR has been fair enough to admit that no
incriminating material was found during the search action and that
the original assessment proceedings stood completed on the date of
search
The issue, thus, is squarely covered in favour of the assessee
by the decision of the Hon'ble Delhi High Court in the case of ‘CIT
Vs. Kabul Chawla’ [2016] 380 ITR 573 (Del) and further in the case
sof ‘Principal CIT Vs. Meeta Gutgutia’ [2017] 395 ITR 506, Hon'ble
Bombay High Court in the case of ‘CIT Vs. Continental Warehousing
Corporation’ [2015] 374 ITR 645 (Bom.), Hon'ble Calcutta High
Court in the case of PCIT Vs. Salasor Stock Broking Ltd 2016 (8)
TMI 1131 and the decision of the Hon'ble Delhi High Court in the
case of ‘Kabul Chawla’ (supra) has also followed by the Hon'ble
Gujarat High Court in the case of case of ‘PCIT Vs. RSA Digi Prints’
2017 (9) TMI 530. The Ld. Counsel has also referred to various
decisions of the coordinate Benches of the Tribunal on this issue.
Respectfully following the decisions of the higher courts, we
do not find any infirmity in the order of the CIT(A) in holding that in
ITA No.993/Chd/2017- Sh. AKJ Portfolio P. Ltd 4
the case of concluded assessments, in the absence of any incriminating material found during the search action, the impugned additions were not warranted. The appeal of the Revenue is, therefore, dismissed.
Order pronounced in the Open Court
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 24.04.2018 Rkk
Copy to: • The Appellant • The Respondent • The CIT • The CIT(A) • The DR