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2014 (1) TMI 1228 - ITAT MUMBAIValidity of assessment and assumption of jurisdiction under section 153A r.w. 143(3) of the Act – Addition made on entrance fee collected - Held that:- The decision in Jai Steels India, Jodhpur v/s ACIT [2013 (6) TMI 161 - RAJASTHAN HIGH COURT] followed - If no incriminating material has been found, then no addition can be made in the assessment completed under section 153A which has not been abated - The assessments were not pending and had attained finality and thus, the assessments completed in the assessment years will not get abated - Once that is so, the legal position as of now is that the additions over and above the assessed income cannot be made dehors the incriminating material found at the time of search while completing the assessment under section 153A. Incriminating material - Whether the statement recorded under section 132(4) or the Annexure-B which has been referred to by the learned Departmental Representative can be said to be incriminating material – Held that:- The assessee has clearly stated that it has claimed the membership fee as capital receipt based on the decision of the Hon'ble Jurisdictional High Court and such a claim has also been accepted by the Assessing Officer in scrutiny proceedings - Neither in the question nor in the answer thereto, there is any reference to any document or seized material, much less any incriminating material to show that the assessee's claim which was allowed by the Department has been negated - this claim is purely based on legal principle as upheld by the Hon'ble Jurisdictional High Court. The statement as such cannot be said to be incriminating material so as to infer that any addition is warranted on this issue while completing the assessment under section 153A, when the earlier assessments have attained finality at the time of search - the document does not show that the assessee's claim for capital receipts will automatically be inferred as revenue receipt - The period of membership of 25 years also is a part of the record and no new information or material can be said to have come into picture as a result of search - Thus, neither the statement recorded under section 132(4) nor the document mentioned at Annexure-B can be inferred as incriminating material for the purpose of making addition under section 153A – Decided in favour of Assessee.
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