The ACIT, Central Circle-2(1), Ahmedabad V. Shri Dipak Ajitkumar Thakkar, Ahmedabad

ITSSA 320/AHD/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3394 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-07-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 02-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Set aside
• Section: 131; 68; 132; 139; 143(3); 153A; 201; 143(2)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “B” BENCH Before: Shri P.M. Jagtap, Vice President And Shri Siddhartha Nautiyal, Judicial Member Th e ACIT, Central Circle-2(1), Ah medabad -3 80009 (Appellant) Vs Shri Dipak Ajitku mar Thakkar, 30, Sh ivalik Villa, B/H, Rajpath Club, Ambli, Ah med aba d (Resp ondent) Asses see b y : Shri Biren Shah, A. R. Revenue by : Shri J ames Kurian, CIT-D. R. Date of hearing : 25-07 -2022 Date of pronouncement : 29-07 -2022 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These three appeals have been filed by the Revenue against the orders of Ld. CIT(Appeals) dated 25-03-2019 for assessment years 2008-09, 2009- 10 & 2010-11. Since, identical issues are involved in appeals for all the years, the same are being disposed of by a common order. IT(SS)A Nos. 319, 320 & 321 /Ahd/2019 Assessment Year 2008-09, 2009-10 &2010-11 I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 2 2. The revenue has raised the following grounds of appeals:- IT(SS)A No. 319/Ahd/2019 (Assessment Year 2008-09) “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in -law and on facts in not appreciating the provisions of Section 153A of the I.T. Act, 1961 which requires the total income to be brought under tax without any restrictions. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in holding that such assessment or re- assessment u/s.153A of the I.T. Act, 1961 is to be restricted to the incriminating material found during the search. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,76,08,642/- on account of unexplained unsecured loan u/s.68 of the Act, ignoring the fact that M/s.Sankalp Enterprise was not traceable thereby the three legs of Section 68, i.e. identity creditworthiness and genuineness of transactions were not satisfied. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,76,08,642/- on account of unexplained unsecured loan u/s.68 of the Act, in holding that the transactions done by Dev Arcade Pvt. Ltd. (erstwhile name of Dev Procon Ltd.) with Sankalp Enterprise have been accepted by Settlement Commission as there is no mention of such transactions in the order passed by Settlement Commission. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 6. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent. Overall tax effect Rs. 2,63,79,180/- I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 3 IT(SS)A No. 320/Ahd/2019 (Assessment Year 2009-10)_ “1. On the facts and in the circumstances of the case and in law, the Lid. CIT(A) has erred in law and on facts in not appreciating the provisions of Section 153A of the I.T. Act, 1961 which requires the total income to be brought under tax without any restrictions. 2. On the facts and in the circumstances of the case and in law, the Lid. CIT(A) has erred in law and on facts in holding that such assessment or re-assessment u/s.!53A of the I.T. Act, 1961 is to be restricted to the incriminating material found during the search. 3. On the facts and in the circumstances of the case and in law, the Ltd. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,46,74,017/- on account of 3 unexplained unsecured loan u/s.68 of the Act, ignoring the fact that M/s. Sankalp Enterprise was not traceable thereby the three legs of Section 68, i.e. identity creditworthiness and genuineness of transactions were not satisfied. 4. On the facts and in the circumstances of the case and inlaw, the Ltd. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,46,74,017/- on account of unexplained unsecured loan u/s.68 of the Act, in holding that the transactions done by Dev Arcade Pvt. Ltd.(erstwhile name of Dev Procon Ltd.) with Sankalp Enterprise have been accepted by Settlement Commission as there is no mention of such transactions in the order passed by Settlement Commission. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 6. It is therefore prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent. Overall tax effect Rs. 2,53,81,700/-” I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 4 IT(SS)A No. 321/Ahd/2019 (Assessment Year 2010-11) “1. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in law and on facts in not appreciating the provisions of Section 153A of the I.T. Act, 1961 which requires the total income to be brought under tax without any restrictions. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in holding that such assessment or re-assessment u/s. 153A of the I.T. Act, 1961 is to be restricted to the incriminating material found during the search. 3. On the facts and in the circumstances of the case and in law, the Ld. GIT (A) has erred in law and on facts in deleting the addition of Rs. 9, 31, 57, 589/- on account of unexplained unsecured loan u/s.68 of the Act, ignoring the fact that M/s. Sankalp Enterprise was not traceable thereby the three legs of Section 68, i.e. identity creditworthiness and genuineness of transactions were not satisfied. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 9,31, 57, 589/- on account of unexplained unsecured loan u/s.68 of the Act, in holding that the transactions done by Dev Arcade Pvt. Ltd. (erstwhile name of Dev Procon Ltd.) with Sankalp Enterprise have been accepted by Settlement Commission as there is no mention of such transactions in the order passed by Settlement Commission. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 6. It is therefore prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent. Overall tax effect Rs. 2,87,85,700/-” I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 5 3. We shall first deal with assessment year 2008-09. The brief facts of the case are that the search action u/s 132 of the Act was carried out in the group cases of Dev Group on 03.01.2013. Two search warrants of authorization u/s 132 of the Act were executed (i) jointly in the name of the assessee and M/s Dev Procon Ltd. on 03.01.2013 and (ii) jointly in the name of the assessee and Shri Mukesh Shantilal Shah on 08.01.2013. Consequent to search, notice u/s 153A of the Act was issued by the Assessing Officer on 24.05.2013. In response to said notice, Return of Income was filed by the assessee on 16.06.2014 declaring total income of Rs. 25,42,660/- which is similar to Return of Income originally filed u/s 139 of the Act. The AO passed Assessment Order for year under consideration after making addition of unexplained unsecured loan of Rs. 7,76,08,642/-. While making addition of unsecured loan AO has observed that Appellant has failed to prove genuineness of the transaction and identity as well as creditworthiness of the creditor as required under section 68 of the Act. 4. During the course of appellate hearing before Ld. CIT(A), the Appellant argued that on the date of search, due date for issuance of notice under Section 143(2) had as already expired prior to the date of search and hence AO cannot make any additions which are not supported by incriminating material found during the course of search. The assessee relied upon various decisions in support of such claim. The Ld. CIT(A) on perusal of Remand Report received from the AO observed that the AO in Remand Report has accepted at Para no 1.6 that addition in the present case is not based on any incriminating material found during the course of search. The Appellant relied upon various decisions to the effect that completed I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 6 assessments can be interfered with by Assessing Officer while making assessment under section 153A only on basis of some incriminating material unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment. Further, since in the instant facts, in the Remand Report, Ld. Assessing Officer has himself accepted that no incriminating material was found on the basis of which assessment u/s 153A of the Act was completed, the same is liable to be set aside in view of various decisions, including the one rendered by the jurisdictional High Court. The assessee contended that though while passing the Assessment Order and Remand Report, AO has referred to various loose papers found during the course of search but additions made in present Assessment Year are not based upon such incriminating material which is accepted by Assessing Officer in Remand Report. 5. The Ld. CIT(A) in his order observed that the search action u/s132 of the Act was carried out in the group cases of Dev Group on 03.01.2013. It is an undisputed fact that Appellant has already filed his return of income on 30-09-2008 which is prior to the date of search and time limit for issuing notice under Section 143(2) has already expired. It is also found that prior to the date of search; assessment order u/s143(3) has been passed in the case of appellant on 13-12-2010 wherein returned income was accepted as such. The AO therefore issued notice on 24-05-2013 and passed Assessment Order for year under consideration u/s 143(3) r.w.s. 153A of the Act after making addition of unsecured loan of Rs. 7,76,08,642/- and while passing the Assessment Order, he has not referred to any loose paper/material found during the course of search. Contrary to such fact, addition is made based I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 7 upon entries already recorded in books of account. The contention raised by Appellant that addition made in Assessment Order is not based upon incriminating material found during the course of search is accepted by AO at para 1.6 of Remand Report. Thus, Ld. CIT(A) observed that the AO has agreed with the legal contention raised by the Appellant in his remand report and he has agreed to the fact that addition made in present case is not based on incriminating material. Accordingly, Ld. CIT(A) set aside the assessment order with the following observations: “From above discussion it is clear that jurisdictional High Court in catena of decisions have consistently held that AO cannot make addition while passing Assessment Order under Section 143(3) if same are not based on incriminating material and on the date of search, time limit for issuance of notice under Section 143(2) has expired. As twin conditions referred by various decisions are duly complied with by Appellant along with the observation of AO in Remand Report that such addition are not based upon incriminating material, the addition made in Assessment Order passed under Section 153A is deleted.” 5.1 Further, even on the merits of additions made u/s 68 of the Act, Ld. CIT(A) gave complete relief to the assessee with the following observations: “3.6 It is observed that during the year under consideration, AO has made addition u/s 68 of the Act for Rs.7,76,08,642/- which mainly includes addition of Rs.6,59^'63,364/-being loan received from Sankalp Enterprise. It is observed that appellant has submitted confirmation, PA Number, bank statement of Appellant as well as depositor. The appellant has also submitted tabular chart showing sources of funds received by such proprietorship firm of Mr Ajit Thakkar. It is observed that appellant has received loan of Rs 12,71,92,000/- from such firm and repaid Rs.6,12,28,636/- during the I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 8 year and such repayment has been accepted by AO in assessment order. It is pertinent to note that AO has made addition without appreciating the fact that he himself vide order dated 31/03/2015 in case of Ajit Thakkar wherein he has accepted returned income as assessed income. The AO at para 2.3 of his order has observed that Devdip Malls Developers & other group entities has purchased material and other items through Sankalp Enterprise and such firm has facilitated the group in purchasing material and other items through different suppliers but such fact does not mean that transaction entered with appellant is non genuine more particularly when such loan is received from proprietary concern of appellant's father and his returned income is accepted as such by same AO. It is further observed that appellant has even given sources of loan given by Sankalp Enterprise and major funds are received by him from Dev Group companies as mentioned in tabular chart reproduced herein above at para 3.3 of written submission. The major funds are received by Ajit Thakkar, Proprietor concern of Sankalp Enterprise are received from Dev Arcade Pvt Limited ( Dev Procon Limited) and Devdip Malls Developers and transactions by such concerns with Sankalp Enterprise are accepted by Hon'ble Settlement Commission in Its 245D(4) order dated 29/09/2016. The AO has also made addition on the ground that settlement application filed by such concerns were not finalised at the time of assessment proceedings but now such application are finalised wherein such transactions are accepted and no adverse action in case of such concerns are made hence such observation of AO that loan received from Sankalp Enter prisfi is non-genuine cannot be accepted. It is pertinent to note that ARs of appellant has filed specific submission filed by Dev Procon Limited on 15/09/2016 regarding their loan given to Sankalp Enteprise for Rs 3 crore which in turn is given by such firm to appellant and such submission was filed with specific query of PCIT regarding funds transactions by Dev Procon Limited in Settlement Hearing and after considering appellant's reply, no adverse action is taken for such transaction in Dev Procon Limited. From records, it appears that department has accepted the final finding of Hon'ble Settlement Commission. Once sources of sources of such loan are accepted to be correct by Hon'ble Settlement Commission, no adverse action is called for in present case of appellant. Even decisions referred in subsequent paras also support the contention of I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 9 appellant that no addition u/s 68 can be made for loan received from Sankalp Enterprise. 3. 7 With regards to other loans received from remaining 8 parties as referred in assessment order, appellant has already submitted confirmation, PA Number, bank statement of Appellant as well as depositor was submitted. It is observed that out of remaining loan considered u/s 68 by AO for Rs.1,16,45,278/-, major loan of Rs 75,00,000/- is received from Techno Enterprise, appellant has submitted all the details as stated supra and even return of income of said depositor reflects returned income of Rs.93. 10 lacs and even such loan is already repaid in A. Y. 201 0-11 and such transactions are accepted to be correct by AO while passing the assessment order u/s 153A for said assessment year. The provisions of Section 68 apply to all the credits during the year provided Appellant does not discharge his liability cast under such Section. When AO has accepted partial transactions to be correct and even repayment has been accepted, no addition under Section 68 can be made in the hands of Appellant. It is material fact that bank statement of such party clearly prove that there is sufficient credit before giving advance to Appellant and there is no material on record to prove that Appellant has repaid cash against loan taken by him. It is not the observation of AO that alleged entry has been taken from shell companies but depositor is assessed to tax and Appellant has provided all the documents as stated herein above to prove the genuineness of the transaction as envisaged in Section 68 of the Act. While passing the Assessment Order there is no allegation of AO that prior to giving any cheque to Appellant there is any cash deposit in the hands of depositors or Joan has been given out of alleged cash given by Appellant prior to the date of search.” 6. The Department is in appeal before us against the aforesaid order passed by Ld. CIT(A) deleting the additions made u/s 68 of the Act, both on jurisdiction as well as on merits of the case. The Ld. Departmental Representative has placed reliance on the order passed by Ld. Assessing Officer u/s 153A r.w.s. 143(3) of the Act. In response, Ld. Counsel for the I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 10 assessee reiterated the arguments taken before Ld. CIT(A) in appeal proceedings. Ld. Counsel for the assessee relied on various judicial precedents to argue that since additions in the order u/s 153A of the Act were not based on any incriminating material found during search, in light of various judicial precedents, including the one passed by jurisdictional High Court, no additions can be made in respect of completed/ unabated assessments and hence the assessment order is liable to be set aside. 7. We have heard the rival contentions and perused the material on record. In the case of PCIT v. Meeta Gutgutia [2018] 96 taxmann.com 468 (SC), Supreme Court held that invocation of section 153A to re-open concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment year. In the case of Pr. CIT v. Saumya Constructions 81 Taxman.com 292 (Gujarat), the Gujarat High Court held that under section 153A, an assessment has to be made in relation to search or acquisition, namely, in relation to material disclosed during search requisitioned. If no incriminating material was found during search, no addition can be made on basis of material collected after the search. The Delhi High Court in the case of Kabul Chabla (2015) 380 ITR 573 (Delhi High Court) has held that completed assessment can be interfered by the Assessing Officer while making assessment u/s. 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 ware not produced or not already disclosed or made in the course of original assessment. The SLP filed by the Revenue I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 11 against the above decision of Delhi High Court was dismissed by the Hon'ble Supreme Court vide SLP(C)No.018651/2016.The Gujarat High Court in the case of Pr. CIT v. Sunrise Finlease 89 Taxman.com 1 (Gujarat) has held that where no incriminating evidence against assessee was found or seized during the course of search so as to attract provisions of section 153A proceedings, no additions could be made on the basis of statement of director of assessee company which were recorded under section 131 much later after search. The Gujarat High Court in the case of PCIT v. Dipak Jashvantlal Panchal [2017] 88 taxmann.com 611 (Gujarat) held that only undisclosed income and undisclosed assets detected during search can be brought to tax in assessment under section 153A of the Act. In the case of PCIT v. Desai Construction (P.) Ltd. [2017] 81 taxmann.com 271 (Gujarat), the Gujarat High Court held that in absence of any incriminating material found during search, Assessing Officer, in assessment under section 153A, would not be entitled to interfere with assessee's claim for deduction under section 80-IA, which was part of original assessment proceedings and such assessment had abated. The ITAT Rajkot Bench in the case of a Rajat Minerals v. DCIT 114 Taxman.com 536 (Ranchi-Trib) held that where no incriminating evidence against the assessee was found or seized during course of search, invocation of provisions of section 153A and making additions/disallowances on basis of tax evasion petition found much after search was unjustified. The Delhi High Court in the case of Pr. CIT v. Jaypee financial services Ltd 127 Taxman.com 419 (Delhi), held that where AO during the course of post search proceedings under section 153A against assessee-share trader found certain evidences showing client code modification done by assessee which I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 12 were not for genuine reasons and, accordingly, made addition on account of such client code modification, since impugned addition was not made by AO based on any incriminating material found during search against assessee and assessment was not pending on date of search, impugned addition was unjustified and same was to be deleted. 7.1 In the instant case, we observe that search was carried out on 03-01- 2013 and assessee had already filed his original return of income for assessment year 2008-09 on 30-09-2008. Prior to date of search, original assessment order was passed in case of the assessee on 13-12-2010. It is observed that the assessment order was passed u/s 143(3) r.w.s. 153A of the Act after making addition of unsecured loan of Rs. 7,76,08,642/- and while passing the assessment order, Ld. Assessing Officer has not referred to any loose paper/ material found during the course of search. The contention raised by the assessee that addition made in Assessment Order is not based upon incriminating material found during the course of search is accepted by AO at para 1.6 of Remand Report referred. The AO has not made additions in assessment year 2009-09 based upon any incriminating material found during the course of search. Therefore, in view of well settled proposition of law that completed assessment can be interfered by the Assessing Officer while making assessment u/s. 153A only on the basis of some incriminating material unearthed during the course of search documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made in the course of original assessment, we are of the considered view that in the instant facts, the Ld. CIT(A) has not erred in facts and in law in deleting the additions for I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 13 assessment years 2008-09 by relying on various decisions on this issue. Since we have set aside the assessment order on the issue of jurisdiction itself, we are not separately discussing the merits of the case. 8. In the result, the appeal of the revenue is dismissed for assessment year 2008-09. IT(SS)A No. 320/Ahd/2019 (Assessment Year 2009-10) 9. We note that the facts of the instant year are similar to that in assessment year 2008-09 and hence our findings for assessment year 2008- 09 will apply to assessment year 2009-10 as well. Just to restate, search action u/s 132 of the Act was carried out in the group cases of Dev Group on 03-01-2013. It is an undisputed fact that Appellant has already filed his return of income for assessment year 2009-10 on 30-09-2009 i.e. prior to the date of search. The assessment u/s 143(3) of the Act was already completed on 19-12-2011 i.e. before the search was conducted. The AO has passed Assessment Order u/s 143(3) r.w.s. 153A of the Act for year under consideration after making addition of unsecured loan of Rs.7,46,74,017/- and while passing the Assessment Order he has not referred to any loose paper/material found during the course of search. Contrary to such fact, addition is made based upon entries already recorded in books of account. The contention raised by Appellant that addition made in Assessment Order is not based upon incriminating material found during the course of search is accepted by AO at para 1.6 of Remand Report . In our view, the AO has not made additions in assessment year 2009-10 based upon any incriminating I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 14 material found during the course of search. Therefore, in view of well settled proposition of law that completed assessment can be interfered by the Assessing Officer while making assessment u/s. 153A only on the basis of some incriminating material unearthed during the course of search documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made in the course of original assessment, we are of the considered view that the instant facts, the Ld. CIT(A) has not erred in facts and in law in deleting the additions for assessment years 2009-10 by relying on various decisions on this issue. Since we have set aside the assessment order on the issue of jurisdiction itself, we are not separately discussing the merits of the case. 10. In the result, the appeal of the revenue is dismissed for assessment year 2009-10. IT(SS)A No. 321/Ahd/2019 (Assessment Year 2010-11) 11. We note that the facts of the instant year are similar to that in assessment year 2008-09 and assessment year 2009-10 and hence our findings for the above assessment years will apply to assessment year 2010- 11 as well. Just to restate, search action u/s 132 of the Act was carried out in the group cases of Dev Group on 03-01-2013. It is an undisputed fact that Appellant has already filed his return of income for assessment year 2010-11 on 29-02-2012 i.e. prior to the date of search. The time limit for issuing notice u/s 143(2) had already expired, before the search was conducted. The I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 15 AO has passed Assessment Order for year under consideration u/s 143(3) r.w.s. 153A of the Act after making addition of unsecured loan of Rs.9,31,57,589/- and while passing the Assessment Order he has not referred to any loose paper/material found during the course of search. Contrary to such fact, addition is made based upon entries already recorded in books of account. The contention raised by Appellant that addition made in Assessment Order is not based upon incriminating material found during the course of search is accepted by AO at para 1.6 of Remand Report. The AO has not made additions in assessment year 2010-11 based upon any incriminating material found during the course of search. Therefore, in view of well settled proposition of law that completed assessment can be interfered by the Assessing Officer while making assessment u/s. 153A only on the basis of some incriminating material unearthed during the course of search documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made in the course of original assessment, we are of the considered view that the instant facts, the Ld. CIT(A) has not erred in facts and in law in deleting the additions for assessment years 2010-11 by relying on various decisions on this issue. Since we have set aside the assessment order on the issue of jurisdiction itself, we are not separately discussing the merits of the case. 12. In the result, the appeal of the revenue is dismissed for assessment year 2010-11. I.T(SS).A Nos. 319, 320 & 321/Ahd/2019 A.Y. 2008-09 to 2010-11 Page No. ACIT vs. Shri Dipak Ajitkumar Thakkar 16 13. In the combined result, the appeals of the revenue are dismissed for assessment years 2008-09, 2009-10 and 2010-11. Order pronounced in the open court on 29-07-2022 Sd/- Sd/- (P.M. JAGTAP) (SIDDHARTHA NAUTIYAL) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad : Dated 29/07/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद