TaxTMI 
TaxTMI 
2019 (11) TMI 628
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....sessment year 2005-06 on the grounds inter alia that :- "1. On the facts and in the circumstances of the case, the CIT(A) has erred in not holding the income on account of surrender of tenancy rights of Rs. 1.10 Crores as income from other sources, as held by the AO instead of income from long term capital gain, as shown by the assessee. 2. On the facts and in the circumstances of the case, the CIT(A) has erred in allowing deduction u/s 54F as claimed by the assessee and disallowed by the AO by treating the above income as income from other sources. 3. The order of the CIT(A) is erroneous and is not tenable on facts and in law." 2. Briefly stated the facts necessary for adjudication of the issues raised by the ....
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....d to delete the addition by quashing the assessment on the ground that the assessment in this case was not abated and no incriminating evidences were found in the search and seizure operation conducted u/s 132 of the Act. 7. Undisputedly, assessment in this case and in case of Shri Gobind Gulati (supra), father of the assessee was framed u/s 153A/143(3) of the Act vide order dated 18.12.2009. It is also not in dispute that the addition has been made by holding income on account of surrender of tenancy rights of Rs. 1,10,00,000/- as income from other sources qua the same land measuring 2823 sq.yds. situated in Village Sarhaul, Tehsil & Distt. Gurgaon, Haryana jointly owned by the assessee and his family members, namely, Shri Gobind Gulati....
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....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. Therefore, it is apparent that there is no incriminating material seized in the hands of the appellant company as a result of search action u/s 132 of l.T. Act. Ld. AR has relied upon various decisions of hon'ble ITAT, Delhi cited supra even after considering the decision of Hon'ble High Court of Delhi in the case of Anil Bhatia cited supra, where Hon'ble ITAT has held that no addition can be made u/s 153A in respect of assessment which were not pending at the time of initiation of search. I hav....
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....lying 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 found as a result of search and seizure operation u/s 132 of the IT Act, Accordingly, the addition made is hereby deleted. Grounds of appeal are allowed." 5. After hearing both the parties, we find that on the date of search, i.e., 15.11.2007, the assessment for the Assessment Year 2005-06 was not pending and hence it cannot be reckoned as abated assessment in terms of 2nd proviso to Section 153A. It is now a well settled law by the Hon'ble Jurisdictional High Court that in case of unabated ass....