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2018 (12) TMI 1673 - ITAT AHMEDABADAssessment u/s 153A - whether in respect of unabated assessments (no pending proceedings) as on the date of search, the AO could frame the search assessment u/s 153A of the Act by making certain additions without any incriminating materials found during the course of the search? - HELD THAT:- The scheme of the Act provides for abatement of pending proceedings as on date of search. It is not in dispute that the assessment for the assessment year from 2008-09 to 2011-12 falls under the ambit of unabated assessment as on the date of search. There is no differentiation as found in the intent of the legislature to differentiate whether the assessments were originally framed u/s 143(1) or 143(3) or 147 of the Act. Therefore, if any incriminating material is not found during the course of search related to those concluded years, the Act does not confer any power on the AO to disturb the finding given thereon and income determined thereon as finality has already been reached and no proceedings were pending on the date of search. In respect of abated assessments, fresh assessments are to be framed by the AO u/s 153A of the Act which would have a bearing on the determination of the total income by considering all the aspects, wherein the existence of incriminating materials do not have any relevance. However, in respect of unabated assessments, the legislature has conferred powers on the AO to follow the assessments already concluded unless incriminating materials are found in the course of the search. Disallowances made for the Assessment years i.e. 2008-09, 2009-10, 2010-11 & 2011-12, which were unabated/concluded assessments as on date of search cannot be made in the search assessments in the absence of any incriminating material found in the course of search and accordingly all those additions are directed to be deleted. Since the legal issues are addressed, we refrain from giving our findings on the merits of disallowances under the provisions of the Act. Accordingly, grounds raised by the assessee for Assessment Years i.e. 2008-09, 2009-10, 2010-11 & 2011-12, are allowed. Addition on account of dividend income - Year of assessment - HELD THAT:- Dividend income was not received by the assessee in the year ending 31-3-2012 and accordingly the same was not liable to be taxed in the year under consideration, i.e. AY 2012-13. The assessee has declared the dividend income pertaining to the assessment year 2012-13 in the assessment year 2013-14 amounting to 15,29,220.00 which was duly accepted by the Revenue. AO has enquired the credit entries in the bank by issuing a common notice u/s 142(1) wherein he asked assessee to furnish the details of entries of dividend reflecting for each year. Further, in reply of the same notice assessee submitted details of each year dividend received. However, even in reply assessee did not submit detail of any dividend for the year ending 31st March 2012. Once assessee contended that she has not received any dividend for the year and submitted all the relevant details the onus was on AO to establish that assessee had received dividend income. The controversy also arises regarding the amount determined by the AO for the dividend income in the year under consideration. In this regard we find that the AO has taken the amount of dividend i.e. 43,12,165 for the year ending 31-3-2012 as recorded in the dividend warrant dated 27-9-2012 which was mentioned in Sri-Lankan currency. Thus the AO has also erred in treating the amount recorded in Sri-Lankan currency in dividend warrant as dividend income of the assessee - thus addition made on account of dividend income for the year under consideration is on without any basis and documentary evidence. Once we have held that the assessee has not received any dividend income in the year under consideration - appeal of the assessee is allowed. Time limit for completing the assessment under section 153A - HELD THAT:- The maximum time limit as per section 153B to complete the assessment for the assessment year 2013-14 was 31/03/2016. It is evident from the assessment order that AO has passed the order on 23/12/2016 which is beyond the due date. This fact was also brought to the notice of the ld. DR, however, he also could not bring anything record to justify the delay in passing the assessment order as per the time limit given under the statute. Therefore as per the above, as the AO could not pass the assessment order under the given time limit, the order passed by the AO is invalid and bad in the eyes of the law. Accordingly, we allow the grounds of appeal raised by the assessee on legal ground and refrain ourselves to adjudicate the issue raised on other ground and on the merit.
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