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TMI Blog2025 (3) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... such contention or fact put-forth either by the ld.Pr.CIT or even ld. DR before us. Therefore, it is clear that applying the ratio laid down by the Hon'ble Apex Court in Abhisar Buildwell P. Ltd. (supra) this issue could not have been considered by the AO during the assessment proceedings.
We have no hesitation in setting aside the order of the ld.Pr.CIT finding the error noted by him, to be not an error at all. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of the order of the ld.Pr.CIT reveals that from the records of the assessment framed in the case of the assessee under section 153A of the Act, consequent to search action undertaken, he found that the AO had failed to make inquiries pertaining to an investment made by the assessee in purchase of a land which was neither disclosed in his return of income nor in his books of accounts. The ld.Pr.CIT noted the records to reveal that the assessee had purchased agriculture land for a consideration of Rs. 38,96,000/- and paid stamp duty of Rs. 8,57,500/-. He also noted that the assessee to have paid a premium amount of Rs. 69,98,400/- on behalf of the seller for the conversion of the land from new tenure to old tenure. He further noted that while the sale consideration paid by the assessee for the land was Rs. 38.96 lakhs, however, by reverse calculation based on the stamp duty value of the property, the consideration/ fair market value of the property came to Rs. 1,74,96,000/-. Noting that no inquiry/verification had been made by the AO with regard to the investment made by the assessee in such property, which was neither disclosed in the books of accounts of the assessee nor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, he stated that the information available with the AO that the assessee had made investment in agriculture land, which was not disclosed either in the return of income filed by the assessee or its books of accounts, tantamounted to incriminating material. He further distinguished all the case laws referred to by the assessee before it, including that of jurisdictional High Court in the case of Pr.CIT Vs. Saumya Construction P.Ltd., 81 taxmann.com 292 (Guj) wherein the Hon'ble jurisdictional High Court had categorically held that search assessments carried out under section 153A of the Act for six years prior to the year in which search conducted have to be passed only on the basis of incriminating material found during the search, for these years, where the assessments are unabated, distinguishing the said case on facts. 6. As for the contention of the assessee that the provisions of section 56(2)(vii)(b) were not attracted in the impugned year, the ld.Pr.CIT stated that the error noted by him was not in relation to the transaction being hit by the provisions of section 56(2)(vii)(b) of the Act, but on the contrary, the error was in relation to the source of investment in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 8. He, therefore, stated that the ld.Pr.CIT's contention that the AO could have been considered all material while framing the assessment under section 153A of the Act of the impugned year, was incorrect. He further pointed out that the ld.Pr.CIT had held that the material/ information now in the possession of the AO of the assessee having made investment in the immovable property, which were not disclosed either in the return of income or books of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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