The Issue Involved In This Appeal Is Squarely Covered By Thedecision Of The Hon’ble Supreme Court In The Case Of Principalcommissioner Of Income Tax, Central-3 v. “14. In View Of The Above And For The Reasons Stated Above, It Isconcluded As Under

OD – 6 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/157/2023IA NO: GA/2/2023PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 2 KOLKATAVSM/S. SALARPURIA PROPERTIES PVT LTD. KOLKATA BEFORE:-THE HON'BLE THE CHIEF JUSTICE T. S. SIVAGNANAM -A N D-HON'BLE JUSTICE HIRANMAY BHATTACHARYYADATE : 2 AUGUST, 2023. Appearance :Ms. Smita Das De, Adv.…for appellantMr. J.P. Khaitan, Sr. Adv.Mr. Akhilesh Gupta, Adv.Mr. Indranil Banerjee, Adv.…for respondent The Court :- This appeal by the revenue filed under Section260(A) of the Income Tax Act, 1961 (the Act) is directed against theorder dated May 10, 2022 passed by the Income Tax AppellateTribunal “A” Bench, Kolkata (the Tribunal) in I.T.A. No.2094/Kol/2017 for the assessment year 2010-11. The revenue has raised the following substantial question of lawfor consideration :- “Whether in the facts and in the circumstances of the case theTribunal was justified in law in deleting the addition madeunder Section 14A read with Rule 8D(2) of the said Act by holding that no addition can be made under Section153A/143(3) of the said Act since no incriminatingdocuments/materials were found or seized during the search ?”We have heard Ms. Smita Das De, learned standing counsel forthe appellant/revenue and Mr. J.P. Khaitan, learned Senior Counselduly assisted by Mr. Akhilesh Gupta and Mr. Indranil Banderjee,learned Advocates appearing for respondent. The issue involved in this appeal is squarely covered by thedecision of the Hon’ble Supreme Court in the case of PrincipalCommissioner of Income Tax, Central-3 vs. Abhisar Buildwell [P] Ltd.,reported in [2023] 149 taxxmann.com 399 . The Hon’ble SupremeCourt had summarized the legal position in paragraph 11 of thejudgement and in paragraph 13 the Hon’ble Supreme Court has heldthat it is in agreement with the view taken by the Delhi High Court inthe case of the Commissioner of Income Tax Vs. [Central] –III vs.KabulChawla, reported in [2016] 380 ITR 573 [Delhi] and that of High Courtof Gujarat in the case of Principal Commissioner of Income Tax-4 Vs.Saumya Construction reported in [2016] 387 ITR 529 [Gujarat]. Theconclusion has been recorded in paragraph 14 of the judgement whichis quoted hereinbelow :- “14. In view of the above and for the reasons stated above, it isconcluded as under: i] that in case of search under Section 132 or requisition underSection 132A, the AO assumes the jurisdiction for block assessmentunder section 153A; ii] all pending assessments/reassessments shall stand abated;iii] in case any incriminating material is found/unearthed, even,in case of unabated/completed assessments, the AO would assume thejurisdiction to assess or reassess the ‘total income’ taking intoconsideration the incriminating material unearthed during the searchand the other material available with the AO including the incomedeclared in the returns; and iv] in case no incriminating material is unearthed during thesearch, the AO cannot assess or reassess taking into consideration theother material in respect of completed assessments/unabatedassessments. Meaning thereby, in respect of completed/unabatedassessments, no addition can be made by the AO in absence of anyincriminating material found during the course of search under Section132 or requisition under Section 132A of the Act, 1961. However, thecompleted/unabated assessments can be re-opened by the AO inexercise of powers under Sections 147/148 of the Act, subject tofulfilment of the conditions as envisaged/mentioned under sections147/148 of the Act and those powers are saved. The question involved in the present set of appeals and reviewpetition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. Nocosts.” The question involved in the present set of appeals and reviewpetition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. Nocosts.” Before the learned Tribunal the assessee had substantiallyraised the contention that the Commissioner of Income Tax (Appeals)CIT(A) erred in not adjudicating the validity of an order under Section153A read with Section 143(3) of the Act in view of the facts andcircumstances of the case, more particularly, when there was noincriminating material found during the course of search. Further,before the learned Tribunal the assessee contended that the CIT(A)erred in directing the assessing officer to follow adjudication of theappeal in the original order under Section 143(3) when the issue insuch an order under Section 143(3) had merged with the order sopassed under Section 153A read with Section 143(3) and in view of thefacts and circumstances of the case. After taking note of thesubmissions on either side the Tribunal on facts has recorded thatthere is no reference at all by the assessing officer to anyincriminating material found during the search and the variousadditions were undisputably made on the basis of the observations ofthe assessing officer during the assessment proceedings for whichthere were no incriminating materials found during the search.Furthermore, the Tribunal held that it is the settled legal position thatin order to make addition in an unabated assessment on the date ofsearch, there has to be incriminating material found during thesearch. Thus, the learned Tribunal rightly decided the issue in favour of the assessee and granted relief and we find no grounds tointerfere with the order passed by the learned Tribunal. Accordingly, the appeal is dismissed and the substantialquestion of law is answered against the revenue. Consequently, the stay application being GA/2/2023 isdismissed. (T. S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA,J.) SN/GH.