JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Standing Counsel Mr. Karan G. Sanghani for the appellant. 2. This appeal is preferred under section 260A of the Income Tax Act, 1961 (For short “the Act”) raising the following substantial questions of law arising out of order dated 17.10.2022 passed by the Income Tax Appellate Tribunal, Surat Bench, Suart (For short “the Tribunal”) in IT(SS)A No.49/SRT/2021 for Assessment Year 2009-2010: “a) Whether in the facts and circumstances of the case and in law, the learned ITAT is justified in upholding the decision of the Ld. CIT(A) by relying on the judgment of this Hon'ble Court in the case of Saumya Construction (P) Ltd? (b) Whether in the facts and circumstances of the case and in law, the learned ITAT is justified in dismissing the appeal of the Revenue in respect of addition of Rs.6,65,00,000/- made on account of unaccounted cash credit u/s 68 of the Income tax Act and confirming the order of the CIT(A) in which it was observed that the addition was not based on any incriminating documents recovered or seized from the assessee despite the fact that that such accommodation entry in form of share Capital was arranged by the assessee from the Kolkata based entry providing companies, which was accepted by the directors of the entry providing companies before the Investigation Wing and based on incriminating data in the form of computer back-ups were found and seized during the course of search and the Assessing Officer has made a detailed analysis of the same and also correlated the same with the addition is made in the assessment order? (c) Whether in the facts and circumstances of the case and in law, the learned ITAT is justified in dismissing the appeal of the Revenue, by holding that any addition/disallowance during the assessment under section 153A has to be confined to the incriminating material found during the course of search under section 132(1) of the Act, even though there is no stipulation in section 153A of the Act? (d) Whether in the facts and circumstances of the case and in law, the ld. (d) Whether in the facts and circumstances of the case and in law, the ld. ITAT is justified in not appreciating that Sec. 153A requires a notice to be issued requiring the assessee to furnish his return of income in respect of each assessment year falling within six assessment years and to assessee or re-assess the total income of those six assessment years, and that the scheme of assessment or re-assessment of the total income of a person searched could be brought to tax, if no addition is allowed to be made for those six assessment years in the absence of any seized incriminating material? (e) Whether in the facts and circumstances of the case and in law, the ld. ITAT is justified in dismissing the appeal of the Revenue and affirming the decision of the Ld. CIT (A) relying upon the decision of this Hon'ble Court in the case of Saumya Construction Pvt. Ltd. (387 ITR 529) without appreciating the fact that in this case for the year under consideration no scrutiny assessments were made till the date of search and therefore there are no "completed assessments" in this case for the year under consideration within the observations made by the Hon'ble Courts of justice?” 3. The respondent assessee filed the return of income on 29.09.2009 declaring total income of Rs.25,58,570/- for the Assessment Year 2009-2010. 4. A search action under section 132 of the Act was conducted at the business premises of the respondent on 19.02.2015 and some incriminating documents were found during the course of search. 5. The Assessing Officer after recording the reasons selected the case of the respondent assessee for scrutiny by issuing notice under section 153A of the Act on 30.12.2015. 6. The Assessing Officer made an addition of Rs.256,79,99,218/- in the assessment order on the ground that the respondent assessee did not account for the job-work of the said amount in the books of account of the respective concerns and therefore, the Assessing Officer was of the view that group concerns of Sumeet Industries Ltd. were engaged in generating unaccounted income and such unaccounted income generated was brought back to the books of account without paying any income tax by adopting numerous methods and techniques by routing the same in the books of accounts in disguised form as loan or share capital. 7. 7. The Assessing Officer on verification of the financial data of the group concerns of Sumeet Industries Ltd. noticed that Sumeet Group had received huge funds in shape of share capital with huge premium/share application money and certain companies of Sumit Group allotted share capital directly to Kolkata based paper companies with huge premium and within one year or less, shares of these such paper companies were bought back at par value or below par value. It was alleged by the Assessing Officer that the respondent assessee received share capital of Rs. 6,65,00,000/- from Kolkata based company who made investment in 665000 equity shares of face value of Rs.10/- each at a premium of Rs.90/- per share in Financial Year 2008-2009 and such shares were transferred by Kolkatta based companies to the respondent assessee at a rate of Rs. 2/- per share but the respondent assessee could not prove the identity, creditworthiness and genuineness of the transactions of such companies and accordingly, show cause notice dated 28.08.2017 was issued to show cause as to why the said amount should not be treated as unaccounted money in form of bogus share premium under section 68 of the Act. 8. The Assessing Officer after considering the submissions made by the respondent assessee with regard to proving the identity of its shareholders on the ground that they are corporate entities who are registered with ROC and are having PAN and are filing income-tax return, held that no company can come into existence without obtaining registration under the Companies Act and the Income Tax Act. Therefore, the Assessing Officer noted that all corporate entities have a common requirement to prove genuineness and identity. On the basis of the facts on record, it was held that companies from which respondent assessee bought back the shares were not genuine as only PAN or ROC registration details were submitted. The Assessing Officer therefore, made addition of Rs.6,65,00,000/- received by the respondent assessee as income under section 68 of the Act. 9. Being aggrieved, the respondent assessee preferred an appeal before the CIT(Appeals) who deleted the addition made by the Assessing Officer. 10. The appellant Revenue therefore, challenged the order passed by the CIT(Appeals) before the Tribunal. The Assessing Officer therefore, made addition of Rs.6,65,00,000/- received by the respondent assessee as income under section 68 of the Act. 9. Being aggrieved, the respondent assessee preferred an appeal before the CIT(Appeals) who deleted the addition made by the Assessing Officer. 10. The appellant Revenue therefore, challenged the order passed by the CIT(Appeals) before the Tribunal. The Tribunal by relying upon the decision in case of Principal Commissioner of Income Tax v. Saumya Construction P. Ltd. (2016) 387 ITR 529 (GUJ) of this Court confirmed the order passed by the CIT(Appeals) by observing as under: “10. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We find merit in the submission of ld Counsel for the assessee, as he pointed out that in assessee's case under consideration, the assessment year involved is 'assessment year 2009-10', wherein the time limit to issue notice for scrutiny under section 143(2), is 31.09.2009 and after completion of assessment for the assessment year 2009-10, the search and seizure action was conducted on 19.02.2015, therefore assessment year 2009-10 is unabated assessment. We note that in case of unabated assessment, no addition should be made without the aid of incriminating material. In the assessment order, the assessing officer made addition based on the unaccounted job work receipts and no any incriminating material was used by the assessing officer to make addition on account of share capital/share premium. The issue of share capital and share premium have already been examined by the assessing officer in the original assessment proceedings, therefore, since the Department has failed to demonstrate the incriminating material in the assessee's case under consideration. xxx 11. Thus, the judgment of the Jurisdictional Gujarat High Court in the case of Saumya Construction Pvt. Ltd (supra) clearly says that no addition should be made without the aid of incriminating material in case of unabated assessment. The ld CIT(A) observed that assessee filed regular return of income on 30.09.2009 for the year under consideration. On the date of search i.e. 19.02.2015, there was no assessment proceedings pending, which got abated. The ld CIT(A) observed that assessee filed regular return of income on 30.09.2009 for the year under consideration. On the date of search i.e. 19.02.2015, there was no assessment proceedings pending, which got abated. In the assessment order, there is no mention of any documentary evidence found or any oral evidence in the form of statement of anyone, which was made basis for the addition made by the assessing officer. Therefore, Id CIT(A) rightly noted that addition made in the assessment order passed u/s 153A of the Act cannot be sustained, if these are not based on any incriminating material found during the course of search. 12. We note that assessee's case has been squarely covered by the judgment of Hon'ble High Court of Gujarat, in the case of PCIT vs Saumya Construction Pvt. Ltd. (2016) (387) ITR 529 (Guj) (Supra) in which it has been held that addition made in the assessment order passed u/s 153A of the Act cannot be sustained, if these are not based on any incriminating material found during the course of search. The cases of the assessee are also covered by the following orders of Higher Judicial authorities. (I) CIT vs. Rameshbhai Jeevrajbhai Desai, (2021) 271 ???mann.com 154(Guj) (II) All Cargo Global Logistics Ltd. & others vs. DCIT, (2012) 74 DTR (Mum) (III) CIT vs. Kabul Chawla, (2016) 380 ITR 573 (Del) (IV) Jain Steal (India) Jodhpur vs. ACIT, (2013) 573 CTR 281 (Raj) 13. Hence, at the cost of repetition, we state that no assessment proceedings was pending on the date of search i.e. 19.02.2015 in this case and the additions have been made without finding of any incriminating material during the course of search, therefore ld CIT(A) has rightly deleted the addition. That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue is dismissed.” 11. Learned Senior Standing Counsel Mr. Karan Sanghani for the appellant tried to distinguish the facts of the case to contend that same is not covered by the decision of this Court in case of Saumya Construction P. Ltd. (supra) as held by the Tribunal. Learned Senior Standing Counsel Mr. Karan Sanghani for the appellant tried to distinguish the facts of the case to contend that same is not covered by the decision of this Court in case of Saumya Construction P. Ltd. (supra) as held by the Tribunal. It was submitted that in similar group concern matter in case of The Principal Commissioner of Income Tax Central, Surat v. Betex India Ltd (order dated 29.01.2024 rendered in Tax Appeal No. 84 of 2024), this Court has admitted similar question and therefore, this appeal is also required to be admitted so far as addition made by the Assessing Officer of Rs.6,65,00,000/- which was deleted by CIT(Appeals) and the Tribunal relying upon the decision of this Court in case of Saumya Construction P. Ltd. (supra). 12. It was further submitted that the case of the petitioner would fall within paragraph no.14(iii) of the decision of Hon’ble Apex Court in case of Principal Commissioner of Income Tax v. Abhisar Buildwell P. Ltd. (2023) 454 ITR 212 (SC) as incriminating material was found during the course of search regarding unaccounted job work which was routed back into the books of account by the respondent assessee by investment in bogus share capital. It was therefore, submitted that the appeal requires consideration on the proposed question of law. 13. Having considered the submissions made by learned Senior Standing Counsel Mr. Sanghani for the appellant Revenue and the concurrent findings of fact arrived at by CIT(Appeals) and Tribunal to the effect that there is no incriminating material available with the Assessing Officer as no assessment proceedings were pending during the course of search on 19.02.2015 for the year under consideration, no interference is required to be made in the impugned order. 14. We are of the opinion that the Tribunal has rightly applied the decision in case of Saumya Construction P. Ltd. (supra) to the facts of the case as it is concurrent finding of fact that no addition is required to be made without the aid of incriminating material in case of unabated assessment for the year under consideration. 15. 14. We are of the opinion that the Tribunal has rightly applied the decision in case of Saumya Construction P. Ltd. (supra) to the facts of the case as it is concurrent finding of fact that no addition is required to be made without the aid of incriminating material in case of unabated assessment for the year under consideration. 15. It is also held by both the CIT(Appeals) and the Tribunal that the respondent assessee filed regular return of income on 30.09.2009 for the year under consideration and when search was conducted on 19.02.2015 in Sumeet Group of companies no incriminating material was available as there was no assessment proceedings pending so far as Assessment Year 2009-2010 was concerned which got abated. It is also pertinent to note that in the assessment order, the Assessing Officer has failed to mention about any documentary evidence found or any oral evidence in form of statement of anyone which was made the basis for addition of Rs.6,65,00,000/-.CIT(Appeals) and Tribunal therefore, rightly held that the addition made in the assessment order cannot be sustained if these are not based on any incriminating material found during the course of search. 16. Reliance placed by learned Senior Standing Counsel Mr. Sanghani for the appellant Revenue on decision of Hon’ble Apex Court in case of Abhisar Buildwell P. Ltd. (supra) would also not be applicable to the facts of the case as the Hon’ble Apex Court has held in paragraph no. 14 as under: “14. In view of the above and for the reasons stated above, it is concluded as under: (i) That in case of search under Section 132 or requisition under Section 132 -A, the AO assumes the jurisdiction for block assessment under Section 153-A; (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 the jurisdiction to assess or reassess the “total income” taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns.…” 17. On perusal of above dictum of law laid down by Hon’ble Apex Court and applying the same to the facts of the case, we are of the opinion that in absence of any incriminating material or any other material available with the Assessing Officer, no addition could have been made as the Assessing Officer could not have assumed the jurisdiction under section 153A of the Act in absence of any incriminating material during the course of search for the year under consideration which is admittedly an unabated assessment as held by this Court in case of Saumya Construction P. Ltd. (supra) as under: “ 15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is linked with search and requisition under sections 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub-section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub- section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub-section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the Legislature is clear, viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of Section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under Section 153A of the Act.” 18. For the foregoing reasons, we are of the opinion that the impugned order passed by the Tribunal does not suffer from any legal infirmity so as to give rise to a question of law much-less any substantial question of law warranting interference by this Court. 19. Appeal therefore, fails and is accordingly dismissed.