Referred Sections: Section 132 of the I.T. Act Section 153A of Income Tax Act, Section 2(22)(e) of the Income Tax Act, 1961 (‘Act’)
Referred Cases / Judgments: CIT vs. Kabul Chawla 380 ITR 573 CIT vs. Meeta Gut Gutia 395 ITR 526 (Del.)
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "E": DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND
SHRI O.P. KANT, ACCOUNTANT MEMBER
ITA.No.2946/Del./2017
Assessment Year 2007-2008
Smt. Neeru Gupta, The ACIT,
H.No.11, Block-5, Roop vs. Central Circle-7,
Nagar, New Delhi.
PAN AGZPG6361M New Delhi-55.
(Appellant) (Respondent)
For Assessee : -None-
For Revenue : Shri R.L. Meena, CIT-D.R.
Date of Hearing : 24.09.2019
Date of Pronouncement : 01.10.2019
ORDER
PER BHAVNESH SAINI, J.M.
This appeal by Revenue has been directed against
the Order of the Ld. CIT(A)-24, New Delhi, Dated 27.10.2015
for the A.Y. 2007-2008.
2. Briefly the facts of the case are that assessee is
an individual. A search and seizure operation under section
132 of the I.T. Act was carried-out on M/s Satya Parkash &
Brothers group of cases on 28.10.2010. Warrant of
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Smt. Neeru Gupta, New Delhi.
authorization under section 132 of the I.T. Act, 1961 was
also issued in the name of the assessee. Notice under
section 153A of Income Tax Act, was issued against the
assessee. The Counsel for Assessee filed letter sought
adjournment due to ill health. Thereafter, statutory notices
were issued, but, none have been attended to. In A.Y. 2007-
2008 under appeal, the assessee has filed return of income
declaring income of Rs.1,40,100/-. Since assessee did not
attend the proceedings under section 153A of the I.T. Act,
the A.O. estimated the income of assessee at Rs.5 lakhs and
passed the Order under section 153A r.w.s. 143(3) Dated
28.03.2013. The assessee challenged the addition before the
Ld. CIT(A). The Ld. CIT(A) restricted the addition to Rs.3
lakhs on best Judgment assessment.
3. None appeared on behalf of the assessee. It is
contended in the grounds of appeal that addition is made
without recovery of any incriminating document during the
course of search, therefore, assessment is illegal and
unjustified.
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Smt. Neeru Gupta, New Delhi.
4. The Ld. D.R. however, relied upon the Orders of
the authorities below.
5. After considering the facts of the case, we are of
the view that entire addition is liable to be deleted. In this
case, the assessee filed original return of income and the
A.O. on the basis of the return of income estimated the
income at higher amount, therefore, no incriminating
material was found during the course of search so as to
estimate the income. The Hon'ble Delhi High Court in the
case of CIT vs. Kabul Chawla 380 ITR 573 held as under :
"2. The issue that the Court proposes to address in
these appeals is the same that was considered by
the ITAT viz., "Whether the additions made to the
income of the Respondent-Assessee for the said
A.Ys under section 2(22)(e) of the Income Tax Act,
1961 (`Act') were not sustainable because no
incriminating material concerning such additions
were found during the course of search and further
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Smt. Neeru Gupta, New Delhi.
no assessments for such years were pending on
the date of search ?"
5.1. Further, the Hon'ble Delhi High Court in the
above case as regards completed assessment held as under:
"vii. Completed assessments can be interfered with by
the A.O. while making the assessment under
section 153A only on the basis of some
incriminating material unearthed during the course
of search or requisition of documents or
undisclosed income or property discovered in the
course of search which were not produced or not
already disclosed or made known in the course of
original assessment"
5.2. Similarly in the case of Pr. CIT vs. Meeta Gut
Gutia 395 ITR 526 (Del.) the Hon'ble Delhi High Court held
that invocation of Section 153A to reopen the concluded
assessments of assessment orders earlier to the year of
search was not justified in the absence of any incriminating
material found during the course of search qua each such
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Smt. Neeru Gupta, New Delhi.
earlier assessment orders. This view of the Hon'ble Delhi
High Court have been confirmed by the Hon'ble Supreme
Court by dismissing the SLP of the Department reported in
257 Taxman 441 (SC). In view of the above and following
the above decisions, we set aside the Orders of the
authorities below and delete the entire addition.
6. In the result, appeal of Assessee allowed.
Order pronounced in the open Court.
Sd/- Sd/-
(O.P. KANT) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 01st October, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT "E" Bench
6. Guard File
// BY Order //
Asst. Registrar : ITAT Delhi Benches : Delhi.
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