“7. We have carefully considered the rival contentions and also perused the order of the ld CIT(A) wherein, vide para No. 50 he had rejected the additional ground raised by the assessee holding that there is no requirement of any incriminating material during the course of search for making an assessment. It was further held by him that nature of assessment proceedings cannot be restricted to make assessment only of undisclosed income. Therefore, it is apparent that this issue is decided against the assessee. Admittedly, assessee has not filed any appeal against such finding of the ld CIT(A). However, according to Rule 27 of the Income Tax Appellate Tribunal Rules the assessee can support the order of the ld CIT(A) on the issues decided against him even if same is not agitated in appeal. Rule 27 provides that the assessee though he may not have appeal may support the order against on any of the grounds decided against him. This rule coins the fundamental principle that a person might not have been aggrieved by the order of the court and therefore, might not have filed appeal against such order, however, he is free to defend the order before the appellate forum on all grounds including the ground which may have decided against him by the court whose order is otherwise in his favour. In view of this we agree with the counsel that no addition can be made in the hands of the assessee in absence of incriminating material in a concluded assessment. The present assessment year before us is Assessment Year 2007-08 whereas the search took place on 15.06.2011 and originally the order u/s 143(3) of the Income Tax Act has already been made on 12.11.2008. Therefore, in concluded assessments it is apparent that u/s 153A proceedings if any addition is required to be made has to be on the basis of incriminating material found during the course of search. Before us the ld . D.R. could not show that any of the additions which are contested by the revenue in this appeal are arising out of any incriminating material or post search enquiry conducted by the revenue. We have also perused the contention of the lower authorities on all these additions, however, we also could not find any of the addition agitated before us are based on any incriminating material found during the course of search. The Hon'ble Delhi High Court in 380 ITR 573 in CIT Vs. Kabul Chawla has confirmed the above view vide para No. 37 of the order of the Hon'ble High Court. Therefore, as none of the addition is based on any incriminating material unearthed during the course of search all the grounds of appeal of the revenue are dismissed.”
