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Evershine Resorts Private Limited, ... vs Dcit, Central Circle-2, Chandigarh on 31 October, 2023 cites

Commissioner Of Income Tax (Central) ... vs Kabul Chawla on 29 March, 2016

8. Apropos Ground No. 3 and Additional Ground Nos. 3 and 5 (Additional Ground No.5 being to the effect that in the absence of any reliable or cogent evidence during the course of search stated to have been unearthed that any amount of unexplained cr edits i n the bank accounts, the impugned addition made in the hands of the assessee company were not sustainable in law or on facts), rai sed before him, the ld. CIT(A) observed that on this ground, the assessee had stated that additions made in the order u/s 153A of the Act could not be sustained in the absence of any incriminating mat erial found during the search proceedings, and it had relied on the decision of the Hon'ble Delhi High Court in the ITA 33 &146/CHD/2023 & ITA 739/CHD/2022 8 case of "CIT Vs Kabul Chawla"; that from the facts of the case, it was observed that in this case, the return u/s 139 of the Act was filed on 31.08.2017; that therefore, as on the date of search, i.e., 16.02.2018, proceedings in this case were not completed as time to issue noti ce u/s 143(2) of the Act had not expired; that therefore, the ratio of the decision of the Hon'ble Delhi Hi gh Court in the case of "Kabul Chawla" was not applicable to the facts of the case; that therefore, the AO was not to restrict the addi tions subject to the incrimi nating seized material; that moreover, it had been noted that in terms of the provisions of Section 153A(1)(b), the AO was r equired to assess/re-assess the total income in the year under consideration; that it has been held by the Hon'ble Kerala High Court in the case of "CIT Vs K.P.Ummerthat" that w hen a notice u/s 153A is issued, it enables the Departm ent to carry out assessment/re- assessment with r espect to six imme diate pri or years and this does not require any incr iminating material referred during search r elating to those prior years in which there is no time left on the date of search for an assessment u/s 143(3); that the same view has been upheld by the Hon'ble Allahabad High Court in the case of "Raj kumar Arora", 367 ITA 33 &146/CHD/2023 & ITA 739/CHD/2022 9 ITR 517 (All), the Hon'ble Kerala High Court in the case of "C.N. Gopakumar Vs CI T", (2016) 75 taxmann.com 215 (Ker) and the Hon'ble Allahabad High Cour t in the case of "CIT Vs Kesarwani Zerda Bhandar", I TA No. 270/2014; and that keeping in view the provisions of the Act and the ratio of the decisions mentioned, it had been observed that the AO was having jurisdicti on to assess the income of the assessee on the basis of the material available at the time of assessment and he was not to restrict the addi tions subject to the incriminating material found during the cour se of the search. With these findings, the ld. CIT(A) dismisse d Ground of appeal No.3 and Additional G rounds of appeal Nos. 3 and
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