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TMI Blog2015 (10) TMI 2305X X X X Extracts X X X X X X X X Extracts X X X X ..... abate in terms of the second proviso to Section 153A(1) of the Act. Therefore, the ratio of the judgment of Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava-Sheva) (2015 (5) TMI 656 - BOMBAY HIGH COURT) is clearly attracted and the impugned addition could not have been made in respect of an unabated assessment which had become final in the absence of any incriminating material having been found in the course of search, qua the impugned gift. Thus, we set aside the order of CIT(A) and direct the Assessing Officer to delete the addition as the same is purported to be beyond the scope and ambit of an assessment envisaged under section 153A of the Act. - Decided in favour of assessee. - ITA Nos. 8027 & 5139/M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I as unexplained cash credit u/s.68 of the Income Tax Act, 1961. 3. Briefly put, the relevant facts are that the appellant is an individual, who alongwith his family members was subject to a search action by the Department under section 132 of the Act on 12/9/2007. Pursuant to search, a notice under section 153A of the Act was issued on 24/7/2008 calling for a return of income. In response, the assessee filed a return of income on 24/8/2009 declaring a total income of ₹ 10,89,125/- as against an income of ₹ 5,77,443/- declared in the return of income originally filed under section 139(1) of the Act on 01/09/2004. The return of income filed by the assessee was subject to a scrutiny assessment under section 143(3) r.w.s. 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the residence of the assessee no incriminating documents, jewellery, cash or unaccounted bank account etc. was found and, therefore, there was no seizure except some loose papers which were appropriately explained in the course of assessment proceedings and no addition has been made in respect of such loose papers. It was pointed out that in the context of the original return filed u/s. 139(1) of the Act, since no notice under section 143(2) of the Act was issued within the prescribed period, the assessment stood completed and in any case on the date of search i.e. on 12/09/2007, the assessment for the impugned assessment 2004-05 was not pending. Therefore, the assessment for the year under consideration did not abate in terms of the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Departmental Representative the AO was duty bound to assess or reassess 'total income' of such assessment years and, therefore, the impugned addition was justifiably made as it involves application of Section 68 of the Act. The Ld. Departmental Representative pointed out that the gifts received by the assessee from the two persons was scrutinized in the context of the ingredients of section 68 of the Act and the Assessing Officer concluded that the assessee could not establish the creditworthiness of the donor or the genuineness of the transaction. 7. We have carefully considered the rival submissions. Section 153A of the Act postulates the assessment in cases of search or requisition under section 132 or under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Nhava-Sheva) 58 Taxmann.Com 78 (Bom) wherein the scope of an assessment under section 153A of the Act has been considered. One of the points addressed by the Hon'ble High Court was whether the scope of assessment under section 153A of the Act envisages additions, which are otherwise not based on any incriminating material found during the course of search. As per Hon'ble High Court, no addition could be made in respect of the assessment that had become final in the event no incriminating material was found during the course of search. The Hon'ble High Court also noticed its earlier judgment in the case of Murali Agro-products Ltd. (supra) and has elaborately culled out the scope and ambit of the assessment and reassessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pamani were also furnished by the assessee. Before us, the Ld. Representative for the assessee also referred to page 29 of the Paper Book, wherein is placed a copy of an Article published in the magazine containing a write-up about the financial and business interest of the two donors, which prima-facie show the creditworthiness of the donees. Be that as it may, we are not presently dealing with the merits of the efficacy of the ingredients of section 68 of the Act, but we are only trying to ascertain as to whether any incriminating material was unearthed during the course of search which would show that the gifts were ingenuine. On this aspect, we find that there is no material referred to by the Revenue to say that any incriminating mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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