ACIT, CENTRAL CIRCLE, PANAJI vs. SHRI AJIT MITTAL, PANAJI

आदेश / ORDER

PER R.S.SYAL, VP :

These two appeals by the Revenue relate to the assessment

years 2015-16 and 2016-17. Since a common issue is raised in these

appeals, we are, therefore, proceeding to dispose them off by this

consolidated order for the sake of convenience.

assessee filed his original return u/s.139(4) on 31-03-2016 declaring

total income at Rs.38,29,660/-. Thereafter, a search and seizure

action was taken u/s.132 upon the assessee on 24-10-2017. The

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Assessing Officer (AO) completed the assessment by making an

addition of Rs.1,35,42,906/- on account of disclosure made by the

assessee in statement u/s.132(4) of the Act. The assessee argued

before the ld. CIT(A) that it was a case of unabated assessment and

in the absence of any incriminating material found during the course

of search, no addition could have been made. The ld. CIT(A) called

for the remand report from the AO. Vide the remand report dated

15-02-2022, as reproduced in the impugned order, the AO admitted

that though the addition was made on the basis of statement of the

assessee u/s.132(4), but no incriminating material was found. He,

however, harped on the fact that assessment u/s.153A can be made

without there being any incriminating evidence against the assessee.

The ld. CIT(A) concurred with the submissions advanced on behalf

of the assessee and ordered to delete the addition. Aggrieved

thereby, the Revenue has come up in appeal before the Tribunal.

relevant material on record, it is seen as an admitted position that

the assessment year under consideration is 2015-16. Return for this

assessment year was filed belatedly u/s.139(4) on 31-03-2016.

Notice u/s.143(2) could have been issued within six months from

the end of the financial year in which the return was filed, namely,

by 30-09-2016. The assessee was subjected to search on

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24-10-2017 and by that time no assessment for the year under

consideration was taken up nor could have been taken up by virtue

of the limitation u/s 143(2) of the Act. Once the position is so and

admittedly no incriminating material was found during the course of

search, the addition in respect of such an unabated assessment year

could not have been made. Our view is fortified by the recent

judgment of the Hon’ble Supreme Court in Pr.CIT Vs. Abhisar

Buildwell (P) Ltd. (2023) 454 ITR 212 (SC) holding that if the

assessment is not pending and no incriminating material is found

during the course of search, no addition can be made in the

assessment u/s.153A of the Act. It has further been observed that

the completed assessment can be reopened by the AO in exercise of

powers u/s.147 subject to the fulfilment of requisite conditions and

those powers are saved. We are instantly concerned with the

assessment u/s.153A of an unabated assessment year for which no

incriminating material was found during the course of search. As

such, the decision of the ld. CIT(A), deleting the addition on this

score, is unexceptionable. However, the AO is at liberty to take

recourse to the appropriate legal provisions in the light of the

decision in of Abhisar Buildwell (supra), if permissible under the

law.

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circumstances of the addition made for the A.Y. 2016-17 and

deleted in the first appeal are mutatis mutandis similar to the

preceding year. Following the view taken hereinabove, we approve

the impugned order on this count.

Sd/- Sd/- (S.S.VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 13th September, 2023 सतीश

आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The respondent 2. 3. The CIT concerned 4. DR, ITAT, Panaji Bench, Panaji गाड� फाईल / Guard file. 5.

आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

5 ITA Nos.69 & 70/PAN/2022 Ajit Mittal

Date 1. Draft dictated on 12-09-2023 Sr.PS 2. Draft placed before author 13-09-2023 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *