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2016 (9) TMI 1147 - AT - Income TaxValidity of proceeding under section 153A - no notice under section 143(2) issued within the statutory period available - disallowance under section 40A(3) - existence of incriminating material - Held that - Original return of income under section 139(1) of the Act was filed on 17/09/2009 and no notice under section 143(2) of the Act was issued within the statutory period available, which expired on 30/09/2010. Since in the case of the assessee search was conducted on 21/01/2011, no assessment was pending as on the date of the search. This fact has not been disputed by the learned CIT (DR). Further, we find from the assessment order that in the addition made for disallowance under section 40A(3) of the Act, there is no reference of any incriminating material found during the course of search. Thus, on the date of search, undisputedly no assessment was pending for abetment and it is also an undisputed fact of the present case that no incriminating material was found during the course of search. Thus, we find that on fulfillment of these two conditions i.e. no incriminating material was found during the course of search and no assessment was pending as on the date of the search, no addition could have been made in the proceeding under section 153A of the Act in the case of the assessee. We, thus, respectfully following the ratio laid down in the case of decision of the Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ), we hold that no addition could have been made in the case of the assessee for the year under consideration. - Decided in favour of assessee.
Issues Involved:
1. Disallowance under section 40A(3) of the Income Tax Act, 1961. 2. Jurisdiction to pass assessment order under section 153A. 3. Charging interest under section 234B of the Income Tax Act, 1961. Analysis: Issue 1: Disallowance under section 40A(3) of the Income Tax Act, 1961: The appellant contested the disallowance of a sum under section 40A(3) by the Assessing Officer (AO), challenging the jurisdiction under section 153A. The appellant argued that no notice under section 143(2) was issued within the statutory period, indicating no pending assessment during the search. Citing the case of CIT Vs. Kabul Chawla, it was emphasized that no incriminating material was found during the search. The Tribunal upheld that without incriminating material, completed assessments cannot be interfered with, as per the legal position outlined by the Hon'ble jurisdictional High Court. Consequently, the addition made under section 40A(3) was deemed unjustified, and the appeal was allowed in favor of the assessee. Issue 2: Jurisdiction to pass assessment order under section 153A: The appellant challenged the jurisdiction of the AO to pass the assessment order under section 153A, arguing that no incriminating material was found during the search, and no pending assessment existed at that time. Relying on legal precedents, including the case of Kabul Chawla, the Tribunal concluded that without incriminating material and pending assessment, no additions could be made under section 153A. The Tribunal held that the appellant's contentions were valid, and the appeal was allowed in favor of the assessee. Issue 3: Charging interest under section 234B of the Income Tax Act, 1961: The appellant raised concerns regarding the charging of interest under section 234B by the AO. However, due to the Tribunal's findings on the primary issues of disallowance under section 40A(3) and jurisdiction under section 153A, the matter of interest under section 234B became inconsequential and was disposed of as infructuous. Consequently, the appeal of the assessee was allowed based on the findings related to the primary issues raised during the proceedings. In conclusion, the Tribunal's decision, pronounced on 16th August 2016, favored the assessee by allowing the appeal based on the lack of incriminating material, absence of pending assessment during the search, and the consequent invalidity of the disallowance under section 40A(3) and jurisdiction under section 153A.
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