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TMI Blog2014 (2) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... er has not issued a notice u/s 143(2) as on the date of search, it follows that no proceeding is pending. - As no assessment was pending in the impugned assessment years, there is no abatement. Admittedly, there is no material found during the course of search, much less incriminating material. Under these circumstances, we uphold the order of the first appellate authority who followeds the order of the ITAT in the case of Kusum Gupta (2013 (11) TMI 665 - ITAT DELHI) and held that the addition made by the Assessing Officer is erroneous. - Decided in favour of assessee. - ITA No.4767/DEL/ 2013, ITA No.4770/DEL/ 2013, Cross Objection No. 19/Del/ 2014, Cross Objection No. 21/Del/ 2014 - - - Dated:- 21-2-2014 - SHRI J. S. REDDY AND SHRI RAJP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has received gift of ₹ 15 lac from Mr. Sushil Kumar, ₹ 15 lac from one Shri Gurinder Singh and ₹ 10lac from one Shri Harish Kumar. The Assessing Officer asked to the assessee to discharge the burden of proof u/s 68 of the I. T. Act. 5. In reply the assessee filed a copy of bank statements of the donor s, gift deeds and balance sheet of the donors. The Assessing Officer sent a notice to the donors, which was return back unserved. The Assessing Officer asked the assessee to produce the donors before him. As the assessee failed to produce the donors before the Assessing Officer, he made additions of the gifts as undisclosed income. 6. Aggrieved the assessee carried the matter in appeal, before the Ld. CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed sources is beyond the jurisdiction of section 153A of the Act,1961. 10. The Ld. Departmental Representative submitted that for the assessment year is 2005-06, the last date for filing of the return of Income was 30th June, 2005 ( as the assessee is an individual) and that time for issue of notice u/s 143(2) was 30th June, 2006 and whereas the search had taken place on 23.06.2006 Which means that the Assessing Officer had time to initiate scrutiny proceeding by issue of notice u/s 143(2) and under such circumstances the assessment in question does not abate. He relied on the judgment of Gurinder Singh Bawa vs. DCIT (2012) reported in 28 Taxmann. com 328. He submitted that, as the assessment has not abated, due to reason that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending before the Assessing Officer or any other authority for these assessment years. The Assessing Officer has a right to issue a notice u/s 148 or a notice u/s 143(2) in every case, if the period of limitation permits him to do so, and if the other conditions specified in the Act, are satisfied. Just because an authority has a right of initiating certain proceedings, it does not follow that assessment proceedings are open and are pending as on the date of search. In our view, when the Assessing Officer has not issued a notice u/s 143(2) as on the date of search, it follows that no proceeding is pending. 13. The issue whether it can be said that an assessment is pending in cases where the Assessing Officer has time under the statue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,00,000/- made by the Assessing Officer as alleged income from undisclosed sources was erroneous and liable to be deleted. Ground of Co. No. 21/ Del/ 2014 1. On the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals) should have held that even otherwise on merits, the addition of gifts ₹ 15,00,000/- made by the Assessing Officer as alleged income from undisclosed sources was erroneous and liable to be deleted. 17. The assessee submits that these cross objections are filed only to support the order of the Ld. CIT (A). In view of our finding in the Revenue appeal these cross objections need not to be adjudicated and are disposed off as such. In the result both the revenue appeals as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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