To make additions under Section 153A of the Income Tax Act, the presence of incriminating materials during a search is essential; without such, completed assessments cannot be altered.

JUDGMENT

Manmohan, J. (Oral)--The hearing has been done by way of video conferencing.

BACKGROUND

1. Present appeals have been filed under Section 260A of the INCOME TAX ACT , 1961 (for short `the Act') challenging the order dated 30th April, 2019 passed by the Income Tax Appellate Tribunal (for short `ITAT') for Assessment Years 2008-09, 2009-10 and 2010-11.

2. Appellant seeks framing of substantial questions of law that are proposed in the present appeals. As the questions of law are similar in all the appeals, the questions of law proposed in one of the appeals being ITA 81/2020 are reproduced hereinbelow:-

"A. Whether, on the facts and the circumstances of the case and in law, the Ld. ITAT has erred in confirming the order of the Ld CIT(A) in directing the AO to delete the addition made u/s 68 on account of unexplained credits and u/s 69C on account of unexplained expenses?

B. Whether on the facts and circumstances of the case and in law, the Ld ITAT has erred in dismissing the appeal of the Revenue and deleting the additions made by the AO u/s 68 and 69 of the INCOME TAX ACT relying only upon the decision of Hon'ble Delhi High Court in the case of CIT vs Kabul Chawla (2016) 380 ITR 573, without adverting to the merit of the case?

C. Whether on the facts and in circumstances of the case and in law, the Ld. ITAT has erred in deleting the additions made by the AO in the assessment framed u/s 153A of the Act without appreciating the fact that the decision of Hon'ble High Court of Delhi in the case CIT vs Kabul Chawla (supra), was not accepted by the Department and SLP filed in the Hon'ble Supreme Court was dismissed due to low tax effect and not on merit?

D. Whether, on the facts and circumstances of the case and in law that the Tribunal was legally justified in not appreciating that Revenue has filed SLPs in various cases against the issues arising out of the decision of the Hon'ble High Court of Delhi in the case of CIT vs Kabul Chawla in Apex Court and the decisions are still pending and hence, the issue has not attained finality?

E. Whether, on the facts and in circumstances of the case and in law, the Ld. ITAT has erred in restricting the applicability of the section u/s 153A of the Act in respect of completed assessment as in the present case, only to undisclosed income and assets detected during search u/s 132 of the Act ?

F. Whether, on the facts and in circumstances of the case and in law, the Ld. ITAT failed to consider the mandatory provision of section 153A of the Act that the AO has to assess the total income of six assessment years u/s 153A of the Act and this cannot be done if the scope of Section 153A is limited to only undisclosed income?"

ARGUMENTS ON BEHALF OF APPELLANT/REVENUE

3. Learned counsel for the appellant/Revenue states that the ITAT has erred in confirming the orders of the Commissioner Income Tax (Appeal) and directing the Assessing Officers to delete the additions made under Section 68 of the Act on account of unexplained credits and under Section 69C of the Act on account of unexplained expenses. He submits that the impugned orders are perverse and passed without independently analyzing the decision of this Court in the case of CIT vs Kabul Chawla, (2016) 380 ITR 573 and without adverting to the merits of the cases. He emphasises that the ITAT has erred in deleting the additions made by the AO in the assessments framed under Section 153A of the Act without appreciating the fact that the decision of this court in the case of CIT v. Kabul Chawla (supra) had not been accepted by the department and the Special Leave Petition preferred by the department had b