TaxTMI 
TaxTMI 
2019 (3) TMI 568
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....ment year in ITA No.2459/PUN/2016. The appeals filed by the Revenue in ITA Nos. 385 & 386/PUN/2016 are directed against the order of Commissioner of Income Tax (Appeals) for the assessment years 2008-09 & 2009-10, respectively. There are no cross appeals by the assessee for the said two assessment years. 2. Since the issue raised in all these appeals are common and are arising from same set of facts, these appeals are taken up together for adjudication and are being disposed of vide this common order. 3. The brief facts germane to these appeals are: A 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....
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....tion claimed under LTCG. iii) On the facts and circumstances of the case, the Id. CIT(A) was not' justified in deleting the addition of Rs. 21,680/- made on interest on PPF account, since the assessee has multiple PPF accounts. The appellant craves to add, amend or delete any grounds of appeal." 6. Shri Hari Krishan appearing on behalf of the assessee submitted that during the course of search, no incriminating material was found and there was no pending assessment for the assessment year 2006-07. Thus, it is a case of 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,....
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....come may please be deleted. 2) The appellant hereby reserves the right to add, amend, alter, delete or raise any additional ground/s on or before the date of hearing." 11. A perusal of the record reveals 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 the assessee has been subjected to assessment and has been accepted by the 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....
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....rred in confirming the treatment of Long Term Capital Gain Rs. 13,11,006/- on sale of shares of Listed Companies as profits and gains of business on the grounds that the appellant is trading in shares. The appellant hereby prays that the Long Term Capital Gain of Rs. 13,11,006/- may please be restored and addition as normal business income may please be deleted. 3) The appellant hereby reserves the right to add, amend, alter, delete, or raise any additional grounds on or before the date of hearing." 18. 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 assess....
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....R further submitted that no incriminating material, whatsoever, was found during search action. The Assessing Officer in assessment proceedings consequent to notice issued u/s.153A of the Act made addition merely on presumption and assumption and change of opinion. 21.1 The ld. AR submitted that ground Nos. (i) and (vi) are general in nature. 21.2 The ld. AR further submitted that in ground Nos. (ii) and (iii), the Revenue has assailed the action of Commissioner of Income Tax (Appeals) in deleting 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 sear....
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....e 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 deleting the addition. Accordingly, the impugned order is upheld and the appeal 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 a....