9911796707
TMI Blog2024 (8) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... ome. We find that the documents seized during the search are not in the nature of incriminating documents, because these were duly recorded in the books of account of the Company. The assessment year 2010 11 is undisputedly an unabated assessment year. Even upon a meticulous examination of the statement under section 132(4) of the Act and in the assessment order, there is no reference to any document that has been seized from the assessee upon which the addition has been made. As decided in Murli Agro Products Ltd. [ 2010 (10) TMI 1052 - BOMBAY HIGH COURT] wherein it was held that once the assessment has attained finality before the date of search and no material is found in the course of proceedings under section 132 of the Act, then, no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- under the head short term capital gain of Income Tax Act, 1961. (3). Whether the Ld.CIT(A) is justified in law as well as fact in treating advance of Rs. 82,00,000/- given by the company to the appellant as deemed dividend under Sec 2(22)(e) of the Income Tax Act. (4). Whether the Ld. CIT(A) is justified in law and facts in holding that the land in question was not the agricultural land and thus treating sale as short term capital gain. (5). The assessee pleas to add/amend/alter/change any ground of appeal during the course of appellate proceeding. 3. The learned A.R., upon her argument by pointing out that the addition is not permissible in line with the judgment of the Hon ble Supreme Court in PCIT v/s Abhisar Buildwell Pvt. Ltd., [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Assessing Officer both on legality as well as on merits. Aggrieved, the assessee is in further appeal before the Tribunal. 6. We have heard the rival arguments, perused the material available on record and gone through the orders of the authorities below. Before us, the learned A.R. invited the attention of the Bench to the Panchanama statement under section 132(4) of the Act as well as assessment order. She vociferously submitted that there was no whisper in the assessment record or in the questionnaire under section 132(4) of the Act that any material has been unearthed to prove that there was any undisclosed income or property. She vehemently stated that purchase deed of the land was obtained from M/s. Unijules Life Science Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emise to justify the addition. The learned Departmental Representative suggested that these documents are incriminating in nature and this points out escapement of income. Even if these have been recorded in the return of income, the addition is sustainable because there is non adherence to the provisions of computation. At this juncture, we gainfully refer to Para 14 of the judgment of the Hon ble Supreme Court in Abhisar Buildwell Pvt. Ltd. [2023] 454 ITR 212 (SC) and for better appreciation of the impugned issue, the same is reproduced below: 14. In view of the above and for the reasons stated above, it is concluded as under: (1) that in case of search under section 132 or requisition under section 132A, the AO assumes the jurisdiction f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the documents seized during the search are not in the nature of incriminating documents, because these were duly recorded in the books of account of the Company. The assessment year 2010 11 is undisputedly an unabated assessment year. Even upon a meticulous examination of the statement under section 132(4) of the Act and in the assessment order, there is no reference to any document that has been seized from the assessee upon which the addition has been made. The learned D.R. failed to controvert this issue and submitted that the addition is justified. The Hon ble Supreme Court has rightly concluded that in case the addition is made in the absence of any incriminating material, then the assessment can only be re opened under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of proceedings under section 132 of the Act, then, no addition can be made in the proceedings under section 153A of the Act and deleted the additions made on account of deemed dividend. Relying on the judgments of the Hon ble Jurisdictional High Court binding upon us, we do not find any merit to sustain the addition. 9. Thus, we are in complete agreement that no incriminating materials were unearthed by the Revenue during the course of search irrespective of unabated assessment and hence no addition can be made by the Assessing Officer in the absence of any incriminating material. Accordingly, there is no merit in both the additions made by the Assessing Officer and confirmed by the learned CIT(A). Thus, the assessee succeeds on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
