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TMI Blog2017 (8) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the assessee. Revision u/s 263 in respect of expenditure under the head repairs and maintenance - Held that:- It is not permissible to revise the assessment order in the case of search assessments without referring to the incriminating material in the case of completed assessments. In the instant case the assessments were unabated and there is no incrimainating material. Hence we set aside the orders of the Ld.CIT and allow the appeal of the assessee for the A.Y.2006-07 and 2007-08. Admission of additional income during the post search investigation which was not declared in the return of income filed subsequent to search - CIT set aside the assessment order passed by the AO u/s 143(3) r.w.s. 153A with a direction to reexamine the issue - Held that:- As per the statement recorded u/s 131 on 19.03.2010 the assessee has admitted the total income of ₹ 35 lakhs for the assessment year 2010-11 but no admission was given for additional income and accordingly filed the Return of Income. No other incriminating material was placed before us by the Ld.DR evidencing any other additional income. Therefore, there is no error which is prejudicial to the interest of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.11.2005 31.03.2007 No scrutiny 29.12.2011 2006-07 31.10.2006 31.03.2008 31.03.2008 29.12.2011 2007-08 31.10.2007 31.03.2009 30.12.2009 29.12.2011 5. The Ld.A.R argued that the search u/s 132 was conducted in the case of the assessee on 04/02/2010 and by the time the search was conducted the time limit for issue of notice u/s 143(2) has been expired in the case of A.Y.2005-06 and the regular assessments were completed for A.Y.2006-07 and 2007-08. The Ld. AR argued that the completed assessments and the unabated assessments cannot be tinkered without the incriminating material, as per the judicial pronouncements. Only in the case of abated assessments the income is required to be assessed both as per the books of accounts as well as the seized material. In the case of unabated assessments the reassessment can be made only with the incriminating material. In the case of the assessee the reassessment orders u/s 143(3) r.w.s.153A were comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete the assessment. 7.1. During the appeal, the Ld.AR referred the paper book page No.30 which is the closing balance as on 31.03.2005. As per the balance sheet, the capital balance as on 31.03.2005 was ₹ 7,76,810/-.The assessee also enclosed the account copy of the assessee in respect of the capital account which shows the opening balance of ₹ 776810/- as on 01.04,2005 and there was no difference. Therefore, the Ld.AR submitted that the Ld.CIT has committed an error while examing the capital accounts. 7.2. During the appeal hearing the Ld.DR did not controvert the above facts furnished by the Ld.AR and we do not find any difference as observed by the Ld.CIT in his order passed u/s 263. Accordingly, we set aside the order of the Ld.CIT and allow the appeal of the assessee. ITA No.208, 209 (A.Ys.2006-07 and 2007-08) 8. The case for 2006-07 and 2007-08 were taken up for revision u/s 263 in respect of expenditure under the head repairs and maintenance amounting to ₹ 21,98,678/- and ₹ 34,64,552/- respectively. On verification of the details of expenses, the Ld. CIT observed that the expenses were capital in nature and the assessing officer did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in 47CCH 0190. The coordinate bench in the decision cited supra in connection with the taxability of deemed dividend held as under: The Clause (iv) above, the Hon‟ble High Court held that obviously an assessment has to be made under this Section only on the basis of seized material . In clause (v), the same is reiterated by holding In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made . In clause (vii), it is stated Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be reiterated and the abated assessment or reassessment can be made . In clause (vii), it is stated Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search . Thus, in present case the issue of deemed dividend does not arise from the provisions of Section 153A of the Act and there is no seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search. Accordingly filed the revised return of income at ₹ 45,06,025/- which is inclusive of additional income admitted. The Ld.AR submitted that the Ld.CIT misunderstood the issue and taken up the case for revision. Referring to paper book page no.14, question No.13 of the statement recorded u/s 131 on 19.03.2010 stated that the assessee had admitted the additional income of ₹ 17.00 lakhs and filed the revised return accordingly. Therefore, there is no error in the assessment order passed u/s 143 r.w.s. 153A. 12.2. On the other hand, the Ld.DR relied on the order of the Ld.CIT. The DR did not controvert the fact regarding the admission of additional income in the Revised Return filed in response to the notice issued u/s 153A. Therefore, we do not find any error in the order passed u/s 153A r.w.s. 143(3) and we set aside the order of Ld.CIT and allow the appeal of the assessee. ITA No.211, Assessment Year 2010-11 13. The reason for taking up the case for revision for the assessment year was the undisclosed income of ₹ 35 lakhs as per the post search investigation. The Ld.CIT was of the view that the assessee had admitted additional income of S ..... 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