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Smt. Neeru Gupta, H.No.11, Block-5, Roop Nagar, New Delhi. Vs. The ACIT, Central Circle-7, New Delhi-55.
October, 01st 2019

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
                             2
                                             ITA.No.2946/Del./2017
                                       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.
                              3
                                              ITA.No.2946/Del./2017
                                        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
                                 4
                                                    ITA.No.2946/Del./2017
                                              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
                                5
                                                ITA.No.2946/Del./2017
                                          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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