NAVEEN SHIVHARE,GWALIOR V. A.C.I.T., CIRCLE-3, GWALIOR

ITA 380/AGR/2018

AI Insights

The case involves multiple appeals by the assessee, Shri Naveen Shivhare, against the quantum additions and penalties imposed for the Assessment Years 2003-04 to 2006-07. The appeals were heard by the Income Tax Appellate Tribunal, Agra, which considered the legal arguments presented by both the assessee's counsel and the Departmental Representative. The primary contention was whether the additions made by the Assessing Officer and the subsequent enhancements by the CIT(A) were valid, given that these years were unabated and no incriminating material was found during the search operations conducted on the assessee. The Tribunal referenced the decision of the Hon'ble Apex Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. to support its decision to allow the appeals.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 126597 (ITAT-AGRA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Other Referred Cases: Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (149 Taxmann.com 399)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR YADAV LD.
• Assessee Lawyers: RAJENDRA SHARMA; LD
• Keywords: Business income; Commissioner; Abated Assessments; Commissioner of Income Tax; Deleted; 153A; Consequential penalty; Abated; Section 132; Survive
• Section: 143(3); 271(1)(c); 132; 153A

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “DB” BENCH, AGRA BEFORE HON’BLE SHRI SATBEER SINGH GODARA, JM AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM 1. आयकरअपील सं. / ITA No.381/Agr/2013 (िनधाŊरणवषŊ / Assessment Year: 2003-04) & 2. आयकरअपील सं. / ITA No.382/Agr/2013 (िनधाŊरणवषŊ / Assessment Year: 2004-05) & 3. आयकरअपील सं. / ITA No.383/Agr/2013 (िनधाŊरणवषŊ / Assessment Year: 2005-06) & 4. आयकरअपील सं. / ITA No.384/Agr/2013 (िनधाŊरणवषŊ / Assessment Year: 2006-07) & 5. आयकरअपील सं. / ITA No.318/Agr/2018 (िनधाŊरणवषŊ / Assessment Year: 2003-04) & 6. आयकरअपील सं. / ITA No.319/Agr/2018 (िनधाŊरणवषŊ / Assessment Year: 2004-05) & 7. आयकरअपील सं. / ITA No.380/Agr/2018 (िनधाŊरणवषŊ / Assessment Year: 2005-06) & 8. आयकरअपील सं. / ITA No.381/Agr/2018 (िनधाŊरणवषŊ / Assessment Year: 2006-07) Shri Naveen Shivhare M-40, Gandhi Nagar, Gwalior. बनाम/ Vs. ACIT, Circle-3, Gwalior. ̾थायीलेखासं./जीआइआरसं./PAN/GIR No. AEMPG-8216-Z (अपीलाथŎ/Appellant) : (ŮȑथŎ / Respondent) अपीलाथŎकीओरसे/ Appellant by : Sh. Rajendra Sharma, Adv. – Ld. AR ŮȑथŎकीओरसे/Respondent by : Dr. Arun Kumar Yadav – Ld. CIT-DR 2 सुनवाईकीतारीख/Date of Hearing : 19-02-2025 घोषणाकीतारीख /Date of Pronouncement : 23-04-2025 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid quantum appeals as well as penalty appeals by assessee for Assessment Years (AY) 2003-04 to 2006-07 arises out of separate orders of first appellate authority. First, we take up quantum appeal ITA No.381/Agr/2013 for AY 2003-04 which arises out of an order passed by learned Commissioner of Income Tax (Appeals), Gwalior [CIT(A)] on 22- 11-2013 in the matter of an assessment framed by Ld. Assessing Officer [AO] u/s. 153A r.w.s. 143(3) of the Act on 20-12-2010. 2. The Ld. AR argued that this year is unabated year and the impugned additions are not based on any incriminating material as found during search. Therefore, the impugned additions are not sustainable as per recent decision of Hon’ble Apex Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (149 Taxmann.com 399). The Ld. CIT-DR controverted the arguments of Ld. AR. Having heard rival submissions and upon perusal of case records, our adjudication would be as under. 3. It emerges that the assessee filed return of income on 26-12-2003 which was processed u/s 143(1). The assessee was subjected to search on 12-05-2008 and admittedly, no assessment proceedings were pending against the assessee for this year. Accordingly, this year was an unabated year. In the assessment order, Ld. AO made addition of cash deposit in bank account for Rs.5.51 Lacs, addition of low household personal expenses for Rs.0.30 Lacs and estimated business income of Rs.5 Lacs. The Ld. CIT(A) not only confirmed the assessment but also 3 enhanced income by adding LIC premium and opening capital balance. Aggrieved, the assessee is in further appeal before us. 4. It is quite clear that the impugned additions are not based on any incriminating material as found during the course of search on assessee. This is unabated year. This being so, the ratio of cited decision of Hon’ble Apex Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (149 Taxmann.com 399) would squarely apply to the fact of this case. In this decision, it was held that in respect of completed assessments / unabated assessments, no addition could be made by Assessing Officer in the absence of any incriminating material found during course of search under section 132 or requisition made under section 132A. Respectfully following the same, we delete the impugned addition as made by Ld. AO and also the enhancement as made by Ld. CIT(A). The appeal succeeds on this foremost legal ground alone. 5. It is admitted position that the nature of additions in AYs 2004-05 to 2006-07 are quite similar. All these years are unabated years. Therefore, taking the same view, we delete the impugned additions for all these years as well. All these appeals stand allowed. 6. Against quantum additions, the assessee has been saddled with consequential penalty u/s 271(1)(c) in all the four years. Since we have deleted quantum additions, these penalties would not survive. The assessee succeeds in the penalty appeals as well. 4 7. All the appeals stand allowed in terms of our above order. Order pronounced u/r 34(4) of Income Tax (Appellate Tribunal) Rules, 1963. Sd/- Sd/- (SATBEER SINGH GODARA) (MANOJ KUMAR AGGARWAL) Ɋाियक सद˟ /JUDICIAL MEMBER लेखा सद˟ /ACCOUNTANT MEMBER Dated: 23-04-2025 आदेश की Ůितिलिप अŤेिषत / Copy of the Order forwarded to : 1. अपीलाथŎ/Appellant 2. ŮȑथŎ/Respondent 3. आयकरआयुƅ/CIT 4. िवभागीयŮितिनिध/DR 5. गाडŊफाईल/GF ASSISTANT REGISTRAR ITAT AGRA "