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TMI Blog2016 (11) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... erentiate the Judgments cited and relied upon by learned AR. Therefore considering the factual position as well as settled legal position, we hold that the additions could be made only on the incriminating material found during search and since no incriminating material found during search therefore additions made were unsustainable in the eyes of law. Accordingly we delete the additions - Decided in favour of assessee - I.T.A. No. 3522/Mum/2014, I.T.A. No. 3523/Mum/2014 - - - Dated:- 21-9-2016 - Shri Jason P. Boaz (AM) and Shri Sandeep Gosain (JM) For The Assessee : Shri J.P. Bairagra For The Department : Shri G.M. Doss ORDER Per Sandeep Gosain, JM :- Both these appeals are filed by the assessee against the order of learned CIT(A) for A.Y. 2004-05 2008-09. 2. Brief facts of the case are that both the appeals have been filed against the orders passed by the Assessing Officer u/s. 143(3) read with section 153A. The assessee is a wife of Shri Viren Ahuja who is the main director of Bermaco/Flemingo group of companies. The assessee running her own proprietorship firm in the name and style of Venus Designs which is engaged in the business of export of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of search. The Special Bench further held that in case assessment is abated, the AO retains the original jurisdiction as well as jurisdiction u/s 153A for which assessment shall be made for each assessment year separately. It was submitted that thus in case where assessment has abated the AO can make additions in the assessment, even if no incriminating material has been found. But in other cases the Special bench held that the assessment u/s.153A can be made on the basis of the incriminating material which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the assessment had been completed under summary scheme u/s 143(1) and time limit for issue of notice u/s 143(2) had expired on the date of search. Therefore, there was no assessment pending in this case and in such a case there was no question of abatement. Therefore, addition could be made only on the basis of incriminating material found during search. For this proposition we have relied on the latest decision of:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search, etc. which led to prolonged litigation. To overcome that difficulty, the legislature by Finance Act 2003, decided to discard Chapter XIV B provisions and introduce Sections 153A, 153B and 153C in the IT Act. (9) that Sect ion 153A contemplates is that, notwi thstanding the regular provisions for assessment/reassessment contained in the IT Act, where search is conducted under Section 132 or requisition is made under Section 132A on or af ter 31/5/2003 in the case of any person, the Assessing Off icer shall issue notice to such person requiring him to furnish return of income within the time stipulated therein, in respect of six assessment years immediately preceding the assessment year relevant to the previous year in 'which the search is conducted or requisition is made and thereafter assess or reassess the total income for those assessment years. The second proviso to Section 1 53A provides for abatement of assessment/reassessment proceedings which are pending on the date of search/requisition. Section 153A (2) provides that when the assessment made under Section 153(A)(1)is annulled, the assessment or reassessment that stood abated shall stand revived. (10) Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 153 A proceedings. (13) In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceedings which would show that the relief under Section 80 HHC was erroneous. In such a case, the A.O. while passing order under Section 153A read with Section 143(3) could not have disturbed the assessment order finalised on 29.12.2000 relating to Section 80 HHC deduction and consequently the C.I.T. could not have invoked jurisdiction under Section 263 of the Act. 7. We have also considered the Judgment rendered by Hon'ble Jurisdictional High Court in the case of Murli Agro Products Ltd. (49 taxmann.com 172), wherein it was held that section 153A, read with section 263 of the Income-tax Act, 1961 - Search and seizure - assessment in case of search or requisition (Deduction wrongly allowed) - assessment year 1998-99 - Whether where there was nothing on record to suggest that any material was unearthed during search or during proceedings initiated under section 153A showing that certain relief in form of deduction was wrongly allowed to assessee, Commissioner could not invoke jurisdiction under section 263 on ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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