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TMI Blog2019 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... as been made by the Assessing Officer merely on change of opinion. The return of the assessee filed u/s.139 of the Act was subject to scrutiny assessment. The assessment order u/s.143(3) of the Act was passed on 29.12.2009 i.e. much prior to the date of search. Thus, it is a case of nonabated assessment. No incriminating material, whatsoever, was found during search and seizure action that could have resulted in addition during the impugned assessment year. Therefore, following the detailed reasons given while adjudicating appeal of Revenue assessment year 2006-07, the present appeal of the Revenue for assessment year 2007-08 is dismissed being devoid of any merit. Addition of investment in plot of land - undisclosed investment - HELD THAT:- We find that the plot in question has been disclosed in the list of immovable properties as on 31.03.2001. Since the purchase of asset has already been reflected in the Balance Sheet for the financial year ending in which the asset was purchased, mere seizure of some documents pertaining to the said property would not make the documents incriminating. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search and seizure action was carried out at the premises of Kotecha Group of Jalgaon on 09.08.2011. The assessee being one of the family members of Kotecha group was covered under search action. The assessee is engaged in trading of shares, trading in Futures and Options and commodity trading. The assessee also earns interest income on fixed deposits. The assessee s minor son Siddharth Kotecha derived Short Term Capital Gain on sale of shares which was clubbed with income of the assessee. The assessee in her return of income had declared income from trading of shares, futures and options under the head capital gains, whereas, the Assessing Officer treated the income from sale of shares as business income . The Assessing Officer in assessment proceedings consequent to the search, made certain additions in the hands of the assessee for the assessment years under appeal. 4. Aggrieved by the assessment order passed u/s.143(3) r.w.s. 153A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for the respective assessment years, the assessee filed appeals before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) after examining the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-abated assessment. The Assessing Officer could not have made any addition in absence of any incriminating material. The ld. AR in support of his submissions, placed reliance on the decision of Hon'ble Bombay High Court in the case of CIT Vs. Continental Warehousing Corporation (Nhava Sheva) reported as 374 ITR 645 and the decision of Pune Bench of the Tribunal in the case of Leelavati Vijay Kumar Kotecha in ITA Nos.1294 to 1297/PUN/2016 for the assessment years 2007-08 to 2012-13. The ld. AR pointed that all the additions were made by Assessing Officer without incriminating material, on mere change of opinion. 7. On the other hand, Shri Abhishek Meshran representing the Department vehemently defended the assessment order and prayed for reversing the findings of Commissioner of Income Tax (Appeals). 8. We have heard the submissions made by representatives of rival sides and have perused the orders of the Authorities below. It is an undisputed fact that no incriminating material was found during the course of search that would have resulted in any addition in income returned by the assessee. It is also an uncontroverted fact that assessment consequent to the return of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department. Without there being any incriminating material, in the case of completed assessments, neither any addition can be made nor there can be any change of opinion, be it change of head of income. Hence, we find merit in the submissions of the ld. AR, accordingly, appeal filed by the assessee for the assessment year 2006-07 is allowed. 12. In the result, appeal of the assessee for the assessment year 2006-07 is allowed. ITA No.384/PUN/2016 (By Revenue) ITA No.2459/PUN/2016 (By Assessee) Assessment Year 2007-08 13. The Revenue in ITA No.384/PUN/2016 has assailed the findings of Commissioner of Income Tax (Appeals) by raising following grounds: i) On the facts and circumstances of the case, the ld. CIT(A) was not justified in deleting the addition of ₹ 26,414/- made on interest of PPF account, since the assessee has multiple PPF accounts. ii) The appellant craves to add, amend or delete any grounds of appeal. 14. The Revenue has assailed the order of Commissioner of Income Tax (Appeals) on the solitary issue of deleting addition of ₹ 26,414/- on account of interest on Public Provident Fund (PPF) accounts. The Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. On perusal of the record, we find that it is a case of non abated assessment and no incriminating material was found during search. Therefore, no addition can be made in the case of the assessee. A change of head of income under such circumstances is also not permissible. Once the return of income filed u/s.139 of the Act by the assessee has been subjected to scrutiny assessment and has been accepted by the Department, without there being any incriminating material and being the case of non-abated assessment, neither any addition can be made nor there can be any change of head of income. Hence, we find merit in the submissions of the ld. AR and allow the appeal of assessee for assessment year 2007-08. 19. In the result, appeal of the assessee for the assessment year 2007-08 is allowed. ITA No.385/PUN/2016 (By Revenue) Assessment Year 2008-09 20. The Revenue in ITA No.385/PUN/2016 has assailed the order of Commissioner of Income Tax (Appeals) by raising following grounds: i) On the facts and circumstances of the case and in law, the ld. CIT(A) was not justified in considering that the additions which are not based on the material gathered during the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition arising out of trading in shares by the assessee and her minor son. The additions were made merely on change of opinion without there being any incriminating material. 21.3 In respect of ground No.(iv), the ld. AR submitted that addition was made in respect of investment in plot of land comprising in Gat No.105, Plot No. 36, Mauje: Nimkhedi Dist. Jalgaon. The ld. AR submitted that the assessee had acquired the said plot of land in the year 2001 and the same was reflected in the Balance Sheet for the Financial Year 2001-02. The addition was made by the Assessing Officer merely for the reasons that the agreement for purchase of the said plot of land was found during search. The Commissioner of Income Tax (Appeals) deleted the addition by observing that the land was purchased on 02.03.2001 and the transaction was recorded in the books of account. There was no evidence that any unexplained investment was made by the assessee in respect of purchase of land during the year under consideration. 21.4 With regard to ground No.(v), relating to interest on PPF account, the ld. AR submitted that this ground is identical to ground No.(iii) raised in assessment year 2006-07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Revenue for the assessment year 2008-09 is dismissed being devoid of any merit. 24. In the result, appeal of the Revenue for the assessment year 2008- 09 is dismissed. ITA No.386/PUN/2016 (By Revenue) Assessment Year 2009-10 25. The Revenue in ITA No.386/PUN/2016 has assailed the order of Commissioner of Income Tax (Appeals) by raising following grounds: i) On the facts and circumstances of the case and in law, the ld. CIT(A) was not justified in considering that the additions which are not based on the material gathered during the search are beyond the scope of assessment u/s.153A without appreciating that the additions made by the AO was as a result of search and the issues directly or indirectly emerged only after the search action and evidences gathered during the assessment proceedings and hence cannot be seen in isolation from search. ii) On the facts and circumstances of the case, the ld. CIT(A) erred in deleting the addition of ₹ 1,19,98,381/- as business income and treating the same as Long Term Capital Gain. iii) The appellant craves to add, amend or delete any grounds of appeal. 26. The ld. AR for the assessee submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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