2018 (5) TMI 1940

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....rcumstances of the case, the CIT(A) has erred in deleting the addition by holding the additions made without any incriminating material found during the course of search are outside the scope of section 153A of the Act, when section 153A mandates the AO to assess or reassess the total income. 2. On the facts and in the circumstances of the case, the CIT(A) has erred in not deciding the issue of addition of Rs. 1.10 crores made in the assessment order on merits. 3. The order of the CIT(A) is erroneous and is not tenable on facts and in law." 2. The facts in brief are that assessee has filed its return of income u/s. 139(1) on 30.03.2006 for the Assessment Year 2005-06. A search and seizure action was carried out on 15.11....

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....ned finality much before the date of search. Reliance was placed on catena of decisions which has been noted by the ld. CIT (A) in the impugned order. Ld. CIT (A) has deleted the addition on the ground that, since there is no incriminating material found in the course of search, therefore, addition cannot be made u/s.153A. The relevant finding of the ld. CIT (A) is reproduced hereunder:- "I have perused the assessment orders. The entire addition is on account of surrender of tenancy right shown as capital gain claimed as exempt u/s.54F of the IT Act, which is assessed as income from other source. Nowhere, there is reference of incriminating material/evidences seized during the action u/s 132 in the assessment order. Theref....

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....overed u/s 153 A. Therefore, the decision in the case of Anil Kumar Bhatia does not empower the assessing officer to make the addition u/s 153A. Hon'ble ITAT, Delhi in series of decision relied by Ld. AR such Parivar Properties (P) Ltd. PACL India Ltd., M/s. Marigold Merchandise (P) Ltd. Cited supra after considering the decision of hon'ble jurisdictional High Court have held that addition u/s 153A cannot be made without incriminating evidences in case of assessment which are not abated. Relying on the decision of Hon'ble ITAT, New Delhi in above cited case, in my view, in present case, addition cannot be made u/s 153A in case where the assessment are not abated or closed assessments, as no incriminating evidences were....