Dy CIT Central-1, Bhopal V. M/s. NikitaMultitrade (P) Ltd. , Mumbai

ITSSA 202/Ind/2019

AI Insights

The case involves an appeal by the Deputy Commissioner of Income Tax (Central)-1, Bhopal against M/s Nikita Multitrade Pvt. Ltd. The core issue was the deletion of an addition of Rs. 4,76,50,000 made by the Assessing Officer (AO) on account of unexplained share application money under section 68 of the Income Tax Act, 1961. The CIT(A) had deleted this addition on the grounds that no incriminating material was found during the search and seizure operation relevant to the assessment years in question. The Revenue contended that the CIT(A) erred in deleting the addition without any basis, while the assessee argued that the addition was unjustified in the absence of incriminating material.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122626 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-02-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 16-09-2019
• Other Referred Cases: CIT vs. Kabul Chawla, CIT vs. Anil Kumar Bhatia, CIT vs. Smt. Surai Devi, CIT vs. Naveen Gera, CIT vs. Mahesh Kumar Gupta, Pr CIT V. Meeta Gutgutia, Pr CIT VS Saumya Construction (P) Ltd., Pr CIT Vs Jignesh P. Shah, Pr CIT Vs Deepak Kumar Agarwal, Omprakash Gupta Vs ACIT, MCS Trading Company Pvt. Ltd. Vs DCIT(Central)-1 Indore, Best Infrastructure India (P) Ltd &Ors. Vs ACIT & Ors., ACIT Vs Ram Mehar Garg &Anr., Sainath Colonisers Vs ACIT(Central)-II, Bhopal, Anant Steels P Limited, Shri Anil Kataria, CIT vs. Vegetable Products
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Question of law; Block assessment; Onus to prove; Set aside
• Section: 147; 68; 148; 132; 143(3); 153A; 143(1); 143(2); 139(1); 43; 153; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH: DB : INDORE BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER IT (SS) A No.202/Ind/2019 Assessment Year: 2008-09 The DCIT (Central)-1, Bhopal vs. M/s Nikita Multitrade Pvt. Ltd., Sumit Nema Advocate, Flat No. 303, Princess Vally, South Tukoganj, Nath Mandir Road, Next to Hotel, Princess Place, Indore (M.P) PAN AACCN7334F (Appellant) (Respondent) For Revenue : Shri P.K. Mishra, CIT(DR) For Assessee : Shri Sumeet Neema, CA Shri G.Tiwari, Advocate Date of Hearing : 16.11.2022 Date of Pronouncement : 10.02.2023 ORDER PER CHANDRA MOHAN GARG, J.M. This appeal filed by the Revenue is directed against the order dated 27.06.2019 of the Ld. CIT(A), Indore, relating to Assessment Year 2008-09. 2. The grounds of appeal raised by the revenue read as under:- 1. On the fact and in the circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 4,76,50,000/- made by the A.O. on account of unexplained share application money u/s. 68 of the Income Tax Act, 1961. 3. Learned CIT-DR pressing into service sole ground of revenue submitted that the Ld. CIT(A) has erred in deleting the addition made by the AO on account of unexplained share application money u/s. 68 of the Act. On the sole premise that there was no incriminating material found during the search and seizure operation relevant A.Y. 2008-09. The learned CIT-DR submitted that the AO was right in making hands of the assessee by invoking provisions of section 68 of the Act and the Ld. CIT(A) has granted relief to the assessee without any basis therefore impugned first appellate order may kindly be set aside by restoring that of the AO. He also pointed out that the enquiries conducted by the assessee clearly show that the identity and creditworthiness of the creditors/investors were not establish due to non-existence of their office or business premises on the given address and they were found to have no capacity and purpose to invest by way of share application money in the assessee company. Therefore the AO was right in making addition by invoking provisions of section 68 of the Act and the Ld. CIT(A) has deleted the same on technical ground of non availability of the incriminating material therefore impugned first appellate order may kindly be set aside by restoring that of the AO. 4. Replying to the above the learned AR as per various judgments of Hon’ble various High Court and order of the various co-ordinate Benches of Tribunal including judgment of Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla in ITA 707 of 2014 reported as 380 ITR 573 (Del) in the case where on the date of search assessment order was passed or the prescribed time limit for issuance of notice u/s. 143(2) of the Act, had already been expired on the date of search then no sustainable addition can be made in the hands of assessee in absence of any incriminating material pertaining to such assessment year. He finally submitted that in the case of completed or non abated assessment years no addition can be made in the hands of assessee in absence of incrementing material found and seized during the course of search operation u/s. 132(4) of the Income Tax Act 1961. Therefore the Ld. CIT(A) was right in deleting the addition made by the AO as the prescribed time for issuance of notice u/s. 143(3) of the Act had already been expired for A.Y. 2008-09 on the date of search i.e. 20.06.2012. Therefore the Ld. CIT(A) was right in granting relief to the assessee by deleting the addition in absence of any incriminating documents. 5. On a careful consideration of rival submissions we observe that the Ld. CIT(A) has granted relief to the assessee with the following observations and findings:- 6.1 Ground No. 1 &3 for A. Ys. 2008-09 to 2010-11:-Through these grounds of appeal, the appellant has challenged that no incriminating material was found during the course of search, therefore, the order passed by the AO is bad in law. The AO has made addition on account of unexplained share application money. The addition had been made when no incriminating document were found and seized during the course of search. The search and seizure operation was carried out at the business premises of the appellant and the residential premises of the Director on 20.06.2012. The appellant filed regular return of income for AY 2008-09 on 16.09.2008for A.Y. 2009-10 on 15.09.2008 and for AY 2010-11 on 24.09.2010. The time limit for issuing notice u/s 143(2) for AY 2008-09 was 30.09.2009 for A.Y. 2009-10 was 30.09.2009 and for AY 2010-11 was 30.09.2011 and search has been carried out on 20.06.2012. The original assessment order has been passed u/s 143(3) for AY 2008-09 to 2010-11. Therefore, it is clear that these assessment years are non-abate assessment years. The AO made the addition without incriminating documents. The A simply made addition on account of unexplained share application money. 6.1.1 It is settled position of law that no addition/ disallowance can be made to the total income of the appellant in absence of any incriminating documents in the case of non-abate assessment year. Accordingly, the scope of assessment w/s.153A would be restricted to incriminating material found during the course of search. However, in the instant case under appeal the assessing officer has made addition on account of share capital and share premimum, fully recorded in books of accounts, which in any case ie on legal and on merits not justifiable. 6.1.2 The legal prononument in this respect are as under-: CIT v/s Kabul Chawla of Delhi High Court in ITA No. 707/2014 dated 28.08.2015.- 380 ITR 573 (Del): “Summary of the legal position” 37. In a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under:- I) Once a search takes place under section 132 of the Act, notice u/s 153A(1) will have to be mandatorily issued to the persons searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. II) Assessments and reassessments pending on the date of the search shall abate. The total income for such ATs will have to be computed by the AOs as a fresh exercise. III) The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the total income' of the aforementioned six years in separate assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax IV) Although Section 153A does not say that additions should be strictly made on the basis of evidence found in the course of search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment " can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. " V) In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153A is relatable to abated proceedings (ie those pending on the date of search.) and the word 'reassess' to completed assessment proceedings. VI) In so far as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment Under Section 1534 merges into one. Only one assessment shall be made separately for each A. Y on the basis of findings of the search and any other material existing or brought on the record of the AO. VII) Completed assessments can be interfered with by the A0 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. That Hon'ble Delhi High Court in the case of CIT vs Anil Kumar Bhatia Appeal Nos. 1626, 1632, 1998, 2006 ,2019 ,2020/2010 dt 07-08-20121 had discussed the similar issue in detail in para 20 and 23 and held that: " 20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. For this purpose, the fetters imposed upon the Assessing Officer by the strict procedure to assume jurisdiction to reopen the assessment under Sections 147 and 148, have been removed by the non obstante clause with which sub section (1) of Section 153A opens. The time-limit within which the notice under Section 148 can be issued, as provided in Section 149 has also been made inapplicable by the non obstante clause. Section 151 which requires sanction to be obtained by the Assessing Officer by issue of notice to reopen the assessment under Section 148 has also been excluded in a case covered by Section 153A. The time-limit prescribed for completion of an assessment or reassessment by Section 153 has also been done away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A by even making reassessments without any fetters, if need be. 23. We are not concerned with a case where no incriminating material was found during the search conducted under Section 132 of the Act. We, therefore, express no opinion as to whether Section 153A can be invoked even in such a situation. That question is therefore left open. That Hon'ble Delhi High Court in the case of CIT Vs SmtSurai Devi reported in 328 ITR 604 has held that Refer Para 7: "7. Moreover, in the present case, no evidence much less incriminating evidence was found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the registered purchase deed. A reading of para 3.4.1 of the A0's order does not disclose that the respondent-assessee had made any admission in her alleged statement under s. 132(4) of Act, 1961. In fact, no such statement has been produced before us. It is also pertinent to mention that no adjustment on account of sales consideration has been made by the Revenue in the case of the seller. Consequently, we find that no substantial question of law arises in the present appeal which, being bereft of merit, is dismissed." That Hon'ble Delhi High court in the case of CIT vs Naveen Gera reported in 328 IT 516 has held that Refer Para 9]: "9. We do not find merit in the submission made by Ms. Suruchii Aggarwal that the concealed income was detected during the course of search or any evidence was found which would indicate such concealment. The seized material containing the sale deeds of the properties, which have been relied upon to make reference to DO, had already been declared to the Revenue by the respondent- assessee under VDIS. We are also in agreement with the submission made by Mr. Piyush Kaushik that it is settled law that in the absence of any incriminating evidence that anything has been paid over and above than the stated amount, the primary burden of proof is on the Revenue to show that there has been an under-statement or concealment of income. It is only when such burden has been discharged, would it be permissible to rely upon the valuation given by the DVO. Further, the opinion of DVO, per se, is not an information and cannot be relied upon in the absence of other corroborative evidence /See K.P. Varghese vs. ITO (1981) 24 CTR (SC) 358 : (1981) 131 ITR 59 (SC). Assit. CIT vs. Dhariya Construction Company, Civil Appeal No. 9468 of 2003 /reported as (2010) 236 CTR (SC) 226.Ed.], decided by the apex Court on 16th Feb., 2010, CIT vs. Smt. ShakuntalaDevi (2009) 224 CTR (Del) 79 : (2009) 316 ITR 46 (Del), CIT vs. AshokKhetrapal (2007) 211 CTR (Del) 576 : (2007) 294 ITR 143 (Del) and CIT vs. ManojJain (2006) 200 CTR (Del) 327 : (2006) 287 ITR 285 (Del)]. (14) That Hon'ble Delhi High Court in the case of Pr CIT V. MeetaGutgutia as reported in 395 IT 526 has held that: "71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. " That Hon’ble Indore Bench of ITAT in the case of MIs Anant Steels P Limited IT ISSIA Nos 31, 28, 29& 30/ Ind/2010 dt 18-11-2015 for the Asst Years 2001-02 to 2004-051 has held refer para 16 & 17 of the order of the bench: "16. We have heard rival contentions of both the parties. We have decided the issue that in absence of any incriminating material or documents seized during the course of search, the Assessing Officer cannot pass order us 153A r.w.s. sec. 143(3) of the I.T. Act in the case of Kalani Bros. in IT(SS)A No.71/Ind/2014 and others. The relevant portion of the order is reproduced hereunder: "8. In respect of 153A bad in law on the ground that original assessment proceedings us 143(3) was completed on 29.12.2006 (hereinafter referred as "original assessment order for ease of reference), the AO treated the said lease transaction as sale transaction and taxed the total security deposit receivable as sale consideration of sale of land. The addition made in the search assessment order pertained to the issue already dealt in the original assessment order i.e. lease transaction categorized as sale transaction. The fact that the aforesaid issue bears no relation to the any of the material/documents/records found and seized during the search action on 16.04.2009. Ld. CIT (A) has relied upon the Circular No. 7 of 2003 which clarifies the position of the pending appeals as on the date of the search. The relevant portion is produced herewith - "The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified that the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate.....” Accordingly, as far as completed assessments are concerned, they do not abate. The AO cannot proceed to make the same addition in the block assessment without any incriminating material found in the course of search. The said view prevents the AO to undo what has already been completed and has become final in the original assessment proceedings. 9. We have heard both the sides. We have also gone through the case laws relied upon by both the sides. We have also considered various relevant facts of the case. It is a settled legal position that once a search and seizure action has taken place us 132 of the Act or a requisition has been made us 132A, the provisions of section 153A trigged and Assessing Officer is bound to issue notice ws 1534 of the Act. Once notices are issued us 153A of the Act then assessee is legally obliged to file return of income for six years. The assessment and reassessment for six years shall be finalized by the Assessing Officer. It is also held by various Courts that once notice ws 1534 of the Act issued, then assessment for six years shall be at large both for Assessing Officer and assessee have no warrant of law. It has been also held that in the assessment years where assessments have been abated in terms of second proviso to section 1534 then Assessing Officer acts under original jurisdiction and one assessment is made for total income including the addition made on the basis of seized material. But where there is no abatement of assessments and assessments were completed on the date of search then addition can be made only on the basis of incriminating documents or undisclosed assets, etc. In these cases there was no incriminating document found and seized. No assessment proceedings were abated in these assessees. Thus assessments for these assessment years were completed on the date of search. The assessments were completed us 143(3) of the Act read with section 153A/153C of the Act after the search. There was no abatement of any proceedings in these cases for these assessment years in terms of second proviso to section 153A of the Act. There is no seized material belonging to the assessee which was found and seized in relation to additions made. In a recent decision, Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has held that completed assessments can be interfered with by the Assessing Officer while making assessment w's 153A of the Act, 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 was not produced or not already disclosed or made known in the course of original assessment. In all these cases no assessments were pending on the date of search for these assessment years. No assessments were abated in terms of second proviso to section 153A of the Act. Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has considered various High Court decisions relied upon by the learned DR. The Hon'ble Delhi High Court has considered the cases of Canara Housing Development Co. vs. DCIT; Madugula vs. DCIT; CIT vs. Chetandas Laxmandas and CIT vs. Anil Kumar Bhatia (supra). The only decision of the Hon'ble Allahabad High Court in the case of CIT vs. Raj Kumar Arora; 367 IT 517 relied on by the learned DR was not considered by Hon'ble Delhi High Court while deciding the issue in the case of Kabul Chawla. The Hon'ble Allahabad High Court has reversed the order of the Tribunal and remanded the issue to the Tribunal to consider the appeal of the department on merits. It is a settled legal position that when two views are possible on a particular issue then the view favourable to the assessee should be followed as held by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products; 88 IT 192. Respectfully following the decision of the Hon'ble Apex Court, we dismiss the ground of appeals of the Revenue. Departmental appeals are disposed accordingly. 17. We, respectfully following the same, we allow the appeals on the ground of sec. 153A of the IT. Act wherein we have already held that in absence of any incriminating documents found and seized during the course of search, the Assessing Officer is not justified in making the addition in non-abated assessment order while passing the order us 153A r.w.s. 143(3) of the Act." That Hon'ble ITAT Indore Bench in the case of Shri Anil Kataria [Appeal Nos IT(SS)A Nos 177,178, 179/ Ind/2016| dt 31-05- 2018 has held that: "We find that in the above judgment, the Hon'ble Delhi Court held that completed assessment can be interfered with by the Assessing Anil Kataria IT(SS)A Nos.177 to 179,984, CO 49 & 163 to 165/2017 Officer while making the assessment us 153A of the Act 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 was not produced or not already disclosed or made known in the course of original assessment. Two important aspects come out of this judgment firstly the assessment should have been completed earlier and secondly some incriminating material is found during the course of search relating to that assessment year. In the instant case, we find that there is no dispute to the fact that no incriminating material was found pertaining to assessment year 2007-08 and only the purchase documents in the shape of registered sale deed were found which were duly disclosed in the regular books of accounts. The Assessing Officer could not have reopened the assessment if in case the assessment has been completed earlier u/s 143(3) of the Act for the assessment year 2007-08 but this is not so in the case of the assessee because for the assessment var 2007-08 the return of the assessee was merely processed us 143(1)(a) of the Act which by no canon can be Anil Kataria IT(SS)A Nos.177 to 179,984, CO 49 & 163 to 165/2017 accepted as regular assessment and, therefore, the Assessing Officer had no occasion to examine the related transactions for the assessment year 2007-08. During the course of search, documents were found relating to purchase of property as well as incriminating material for undisclosed investment in construction of property which was sufficient enough for the Assessing Officer to initiate the assessment proceedings for the assessment year 2007-08 to assess the correct income of the assessee. We, therefore, set aside the findings of the learned Commissioner of Income Tax (Appeals) and hold that the assessment for the assessment year 2007-08 w/s 153A r.w.s. 143(3) of the Act was valid. The relevant grounds of the revenue for the assessment year 2007-08 are allowed." That Hon'ble Gujarat High Court in the case of Pr CIT VS Saumya Construction (P) Ltd. as reported in [2017 81 taxmann.com 292 (Gujarat) has held that: "19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment vear, no incriminating material is found, no addition or disallowance can be made in relation to that assessment ear in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of JayabenRatilalSorathia (supra) wherein it has been held that while it cannot be disputed that considering section 1534 of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year." That Hon'ble Bombay High Court in the case of Pr CIT Vs Jignesh P. Shah as reported in [20181 99 taxmann.com 111 (Bombay) has held that: "7. After selling out this principle in great details, the Members of the Tribunal rendered their opinion that factually there was no incriminating material found during the course of search relating to the addition made on account of deemed dividend. The very fact that Section 132 was resorted requiring the Assessing Officer to record the necessary satisfaction, was lacking in this case. The assessment, which had gained finality, in the absence of any material termed as incriminating having thus been subjected to assessment/re-assessment, the Tribunal held in favour of the assessee. We do not think that the Tribunal's understanding of the legal provisions in the backdrop of these peculiar facts suffers from such legal infirmity or perversity necessitating our interference in further Appellate jurisdiction. That Hon' ble Bombay High Court in the case of CIT Vs Deepak Kumar Agarwal as reported in [2017| 86 taxmann.com 3 (Bombay) has held that: "34. There as well, reliance was placed on All Cargo Global Logistic Ltd. (supra) and equally, the conclusion that has been reached that once there is no incriminating material in support of the addition and brought on record by the Revenue, then, the earlier view of this Court binds the Revenue even on this addition. Thus, even this question cannot be termed as substantial question of law in the light of the two judgments of this Court in Continental Warehousing Corpn. and All Cargo Global Logistics Ltd. (supra) followed by SKS Ispat& Power Ltd. (supra)." That Hon'ble ITAT Indore Bench in the case of Omprakash Gupta Vs ACIT [Appeal Nos: IT (SS)A Nos 277 to 281/Ind/2017| vide order dated 28-02-2019 has held that: "11..............Even when the same was pointed out to Ld. D.R., she is not able to establish the fact that additions are based on any incriminating material, therefore we find that the additions made by the A.O. for all the years are not based on any incriminating material found during the course of search. It is only based on subsequent search by issue of notice u/s 153A of the Act calling for the various documents from the assessee additions are made. In so far as the arguments of the Ld. Counsel for the assessee in respect of concluded assessments cannot be reopened, we find that in all the assessment years from 2008-09 to 2012-13, there is no scope for the A.O to issue a notice u/s 143(2) of the Act for the reason that the time limit is already over before the date of search itself i.e. on 29.1.2014. Therefore, in our opinion, all the assessment vears from 2008-09 to 2012-13 are concluded assessments and non abated assessments and any addition has to be made in respect of those assessment years, there must be an incriminating material. In the present case, there is no incriminating material and therefore, the additions made by the A.0. cannot survive. 22. In the interest of justice, the decision of the Hon 'ble Supreme Court in the case of Vegetable Products (Supra) has to be followed. Therefore, we respectively following the decision of Hon'ble Delhi High Court in the case of Kabul Chawla (Supra), Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (supra) and also Hon'ble Gujarat High Court in the case of PCIT Vs. MeetaGutgutia (supra), we hold that no addition can be made in respect of concluded assessments us 153A of the Act unless there is any incriminating material found during the course of search. We would like to make it clear that where the assessment is completed w/s 143(1) or 143(3) of the Act unless A.0. has a time to issue notice u/s 143(2) of the Act, A.0. cannot make an addition us 1534 of the Act, unless there is an incriminating material found during the course of the search. In the case of DCIT(Central)-1 Indore v/s M/s. MCS Trading Company Pvt. Ltd. IT(SS) No. 141, C.O. No. 38/Ind/2016 & ITANO. 353/Ind/2017; The jurisdictional tribunal bench of Indore have held that "We therefore respectfully allowing the above decision and examining the facts of the instant appeal, find that the assessee e-filed its regular return of income us 139(1) on 27.08.20099 declaring income of Rs. 29,39,060/-. The case of the assessee could have been picked up for scrutiny assessment by issuance of notice us 143(2) of the Act latest by 30.09.2010. No such notices u/s 143(2) of the Act MCS Trading Company Pvt Lid IT(SS) No. 141, C.O. No. 38/Ind/2016 & ITAN. 353/Ind/2017 was issued to the assessee. Search ws 132 of the Act conducted on 25.11.10 i.e. after the expiry of the time limit for issuance of notice us 143(2) fo the Act for Assessment year 2009-10. No incriminating material pertaining to Assessment Year 2009-10 was found during the course of search. In these given facts the Assessment vear 2009-10 will come under the category of completed and non abated assessment and the Ld. AO can make additions in such assessments only on the basis of incriminating material found during the course of search. In the case of the assessee as there is no incriminating material found during the course of search Ld. AO could not make any addition on the basis of information called during the course of assessment proceedings and therefore Ld. CIT(A) has rightly held the impugned proceedings us 153A r.ws. 143(3) of the Act as invalid. We uphold the same and dismiss revenue's sole Ground No. I appeal of the revenue for Assessment year 2009-10 stands dismissed. In the case of Best Infrastructure India (P) Ltd &Ors. Vrs. ACIT & Ors. (2016) 47 CCH 0159 it was held that "When issue of share capital was out of purview of assessment us 1534 as assessment for assessment year 2005-06 was not pending on date of search and no incriminating material relating to share capital was found during course of search hence addition made not justified". In the case of ACIT Vs Ram Mehar Garg &Anr. (2016) 47 CCH 0404 it was held that "Provisions of section 153A and 153C are search related provisions and these provisions were applicable only, relating to any undisclosed income on basis of seized documents found in search." In the case of Rawal Das Jaswani Vs. ACIT, (2015) 43 CCH 0606 jurisdictional tribunal bench of Raipur have held that "Where A0 had not referred to any incriminating material found during the course of search based on which addition was made, then the A0 had no jurisdiction to make addition in the assessment framed under s. 153A of the Act". In the case of Sainath Colonisers v/s ACIT(Central)-II, Bhopal ITA(SS) Nos. 289 to 291/Ind/2017; The jurisdictional tribunal bench of Indore have held that "We therefore in the given facts and circumstances of the case and respectfully following the judgments referred and relied by the Id. Counsel for the assessee are of the considered view that no addition disallowance was called for assessment year 2008-09 to 2010-11 as no incriminating material was found during the course of search at the premises of the assessee as the time limit of issuance of notice us 143(2) of te Act stood expired much before the date of conducting search us 132 of the Act. Accordingly all the three appeals of the assessee are allowed." 6.1.3 It has been held in the case of CIT VIs Kabul Chawla (supra) that in absence of any incriminating material, the completed assessment cannot be reopened and reassessment cannot be made. The word 'assess' in section 153A is relatable to abated proceedings and the word 'reassess' to completed assessment proceedings. Completed assessments can be interfered with by the Assessing Officer while making the assessment us. 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. Decision of Kabul Chawla (Supra) has been followed in subsequent decisions in the cases of CIT V/s. Mahesh Kumar Gupta 2016-TIOL-2994-HC-Del and CIT-9 V/s. Ram Avtar Verma in ITA No. 61/2017 & 62/2017 Dtd. 7.02.2017 and Pr.CIT V/s Meeta Gutgutia in ITA No. 306/2017 dt.25.05.2017 (Del). In the case of Pr.CIT vs, Meeta Gutgutia(supra) after considering a catena of judgments on the scope of search assessments u/s. 153A, Hon'ble Delhi High Court has held that Section 153A of the Act is titled "Assessment in case of search or requisition". It is connected to Section 132 which deals with 'search and seizure'. Both these provisions, therefore, have to be read together. Section 153A is indeed an extremely potent power which enables the Revenue to re- open at least six years of assessments earlier to the year of search. It is not to be exercised lightly. It is only if during the course of search under Section 132 incriminating material justifying the re-opening of the assessments for six previous years is found that the invocation of Section 153A qua each of the AYs would be justified. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In a recent decision in the case Pr. CIT (Central)-3 V/s. Dharampal Premchand Ltd. (2017) 99 CCH 0202 Del HC, it has been reiterated that the decision of CIT vs Kabul Chawla is still good law and observed that there was no incriminating material seized qua each of the A. Yrs which were sought to be re-opened, so assumption of jurisdiction for those years was not justified. Further, what was seized did not constitute incriminating material, then essential jurisdictional fact justifying the assumption of jurisdiction us 153A of the Act did not exist. 6.1.4 In view of the above, it is clear that the time for issuance of notice under section 143(2) of the Act had already been expired for the Assessment Year 2008-09 to 2010-11 on the date of search and further the assessment order was passed under section 143(3) of the Act for the AY 2008-09 to 2010-11. The addition has been made by the AO was made on the information provided by the appellant itself. Hence, the assessing officer was not justified in making addition to the total income of the appellant in absence of any incriminating documents. Therefore, the addition made by the AO is not proper. Therefore, the appeal on these grounds is Allowed. 6. Neither the AO nor the Ld. CIT-DR before this bench could controvert the fact that since the date of search was 20.06.2012 and the prescribed time limit for issuance notices u/s. 143(2) of the Act had already been expired for A.Y. 2008-09. From the careful reading of assessment order we find that Assessing Officer proceeded to make addition u/s. 68 of the Act without having any incriminating material in his hand and on specific query from the bench the learned CIT-DR could not point out any observations of the AO in the assessment order to established that there was incriminating material found during the course of search and seizure operation, in the hands of AO at the time of making addition in the hands of assessee for completed/non abated assessment year 2008-09. Therefore we are unable to see any ambiguity perversity or any other valid reason to interfere with the findings arrived at by the Ld. CIT(A) and thus we uphold the same. Accordingly, the sole ground of revenue is dismissed. 7. In the result, appeal of the Revenue is dismissed. Order pronounced in the open court on 10.02.2023. Sd/- Sd/- (BHAGIRATH MAL BIYANI) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 10 th February, 2023. NV/- Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR // By Order // Asstt. Registrar, ITAT, Indore Date 1. Draft dictated on 17.01.2023 2. Draft placed before the author .01.2023 3. Draft placed before the other Member .01.2023 4. Approved Draft comes to the Sr.PS/PS .01.2023 5. Order uploaded on .01.2023 6. File sent to the Bench Clerk .01.2023 7. Date on which file goes to the Head Clerk. 8. Date on which file goes to the AR 9. Date of dispatch of Order.