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TMI Blog2023 (10) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... 746 - DELHI HIGH COURT] has held that the return filed would become final if no notice u/s 143(2) of the Act was issued within the limitation period prescribed for issuing the same. Accordingly, the AY 2012- 13 would also fall under the category of unabated/completed assessment . The additions made by the Assessing Officer in both the years under consideration are not based upon any incriminating material found during the course of search operations. Since both the years under consideration fall under the category of unabated assessment years , the Assessing Officer could not have made addition in both years in the absence of any incriminating material relating to the same. The above said decision of ours is based upon the decision rendered in the case of Abhishir Buildwell P Ltd [ 2023 (5) TMI 587 - SUPREME COURT] as held no addition can be made in respect of completed assessments in absence of any incriminating material. Accordingly, the AO could not have made the impugned additions in the assessment completed u/s 153A of the Act, since no incriminating material relating to both the years under consideration was found during the course of search. Thus we are of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 14A of the Act. The learned CIT(A) upheld the addition relating to the alleged commission payment. With regard to the disallowance made under section 14A of the Act, the learned CIT(A) directed the Assessing Officer to restrict the disallowance to the amount of exempt income earned by the assessee which was Rs. 78,890/-. The revenue has filed the appeal challenging the decision rendered by the learned CIT(A) in giving relief in respect of disallowance made under section 14A of the Act. The assessee has filed the appeal challenging the additions confirmed by the learned CIT(A). 5. It is the submission of the assessee that both the years under consideration fall under the category of unabated/completed assessment years. It is the case of the assessee that all the additions made by the AO in both the years are not based on any incriminating materials found during the course of search and hence all the additions made in both the years are liable to be deleted. 6. We noticed earlier that the Ld CIT(A) has deleted the additions in AY 2010-11 on the basis of legal contention referred above. However in AY 2012-13, the assessee did not raise this legal contention bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stained. With regard to the disallowance made out of interest expenses, the Ld D.R submitted that the books of accounts revealed that the assessee has given interest free advances to the concerns from whom the assessee had taken accommodation entries. Hence the AO has estimated interest disallowance on the amount so given, since the said parties have given only accommodation entries. Accordingly, the Ld D.R submitted that the disallowance of interest expenditure is also based on incriminating material only. With regard to the disallowance made u/s 14A of the Act, the Ld DR submitted that the assessee has not complied with the provisions of the Act in making disallowance and hence the AO has made disallowance in AY 2012-13. She further submitted that the Ld CIT(A) was not justified in restricting the disallowance to the amount of exempt income. In support of her contentions, the Ld DR placed her reliance on certain case laws. We shall deal with the same later. 9. Learned AR, on the contrary submitted that the survey operation has taken place on 20.1.2014 and the Assessing Officer has not initiated any action on the basis of statement taken during the course of survey operation. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey operations can be used for making block assessment under section 158BD of the Act. On the other hand, in the instant case, the survey operation was conducted in the hands of the assessee in January, 2014 and the search operation was also conducted in the hands of the assessee only in the month of June 2014. During the course of search operation, no incriminating material relating to the two years under consideration was found. The material used by the AO were admittedly certain statements taken during the course of survey operations and subsequent thereto, but prior to search operations. 11. Accordingly, it has to be held that the additions made by the Assessing Officer in both the years under consideration are not based upon any incriminating material found during the course of search operations. Since both the years under consideration fall under the category of unabated assessment years , the Assessing Officer could not have made addition in both years in the absence of any incriminating material relating to the same. The above said decision of ours is based upon the decision rendered by Hon'ble Supreme Court in the case of Abhishir Buildwell P Ltd (Civil Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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