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TMI Blog2019 (4) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the assessee was accepted by the Assessing Officer. There was no pending assessment when search and seizure action was carried out by the Department. It is a well settled law that when there is no incriminating material, no addition can be made where original assessments have not abated. The Hon'ble Jurisdictional High Court in the case of CIT Vs. Continental Warehousing Corporation (Nhava Sheva) [2015 (5) TMI 656 - BOMBAY HIGH COURT] has held that no addition can be made in respect of assessments which have become final if no incriminating material is found during search. As decided in M/S. MURLI AGRO PRODUCTS LTD.[2010 (10) TMI 1052 - BOMBAY HIGH COURT] once it is held that the assessment finalized has attained finality, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. The ld. Counsel filed a request letter to withdraw appeal in ITA No.1175/PUN/2015. 3. Shri S.B. Prasad representing the Department raised no objection in assessee s withdrawal of appeal. 4. In view of the request made by ld. Counsel for the assessee, the appeal of the assessee in ITA No.1175/PUN/2015 is dismissed as withdrawn. ITA No.1241/PUN/2015 (By Department) Assessment Year 2005-06 5. Brief facts of the case as emanating from records are: The assessee is a Civil Engineer and Mechanical Contractor. A search and seizure action u/s.132 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) was carried out at the premises of the assessee on 15.06.2010. Notice u/s.153A(a) of the Act was issued to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, no other addition was made in the hands of the assessee for the assessment year 2005-06. 6. Aggrieved by the assessment order dated 07.03.2013 passed u/s. 143(3) r.w.s.153A(b) of the Act, the assessee filed appeal before the Commissioner of Income Tax (Appeals) challenging the addition on two grounds: a. No incriminating material was found during the search for the assessment year 2005-06, therefore, no addition can be made. b. Original assessment for assessment year 2005-06 was completed before date of search. Since the assessee had claimed deduction u/s.80IA(4) in the return of income filed u/s.139 of the Act, the issue had reached finality, therefore, cannot be raked up again in assessment proceedings u/s.153A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in response to notice u/s 153A can be assessed or reassessed by the AO u/s 153A(b) of the Act. 2) On the facts and the circumstances of the case and in law. the Ld. CIT(A) has erred in propounding that availability of incriminating material was prelude to assess u/s.153A once assessments had been completed for the impugned Assessment Years. 3) On the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in accepting the assessee s contention that completed assessments could not be revisited whereas as per Section 153A(2) of the Act has given the mandate to revisit cases annulled by higher judicial authorities. 4) On the facts and the circumstances of the case and in law, the Ld.CIT(A)has erred whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating material is found. 10. On the other hand, Shri S.B. Prasad representing the Department vehemently defended the action of Assessing Officer in disallowing assessee s claim u/s.80IA(4) in respect of miscellaneous receipts. The ld. DR in support of his submissions placed reliance on the decision of Hon'ble Kerala High Court in the case of E.N.Gopakumar Vs. CIT-Central, 75 taxmann.com 15 (Kerala). 11. We have heard the submissions made by the representatives of rival sides and have perused the orders of the Authorities below. The un-rebutted facts in the instant case are: - No incriminating material was found during the course of search and seizure action carried out by the Department against the assessee for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Section 153A of the Income-tax Act establish that the reliefs granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of 153 A proceedings. 14. The ld. DR has placed reliance on the decision of Hon ble Kerala High Court in the case of E.N. Gopakumar Vs. CIT- Central (Supra.). We are of considered view that the aforesaid decision would not support the cause of Revenue, as there is binding decisions of Hon'ble Jurisdictional High Court directly on the issue in hand. In view of the facts of the case and the decisions of the Hon'ble Bombay High Court, we do not find any infirmity in the order of the Commissioner of Income Tax (Appeals), resultantly the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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