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2018 (4) TMI 1751 - ITAT DELHIAssessment u/s 153A - disallowance made u/s 14A - HELD THAT:- We find that there is no mention of any incriminating material found during the course of search with respect to the unexplained advertisement expenses. Further with respect to the disallowance made u/s 14A of the income tax act there is no reference of any incriminating material found during the course of search. In view of this it is apparent that both the disallowance u/s 14A as well as the disallowance on account of unexplained expenditure on advertisement expenses were made without there being any incriminating material found during the course of search. Hence, respectfully following the decision of CIT versus Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] wherein it has been held that completed assessments can be interfered with by the assessing officer while making assessments u/s 153A only on the basis of some incriminating material unearthed during the course of search which was not produced or not disclosed or made known in course of original assessment. Therefore, in the present case the impugned assessment year 2009 – 10, which is a concluded assessment, cannot be disturbed without any incriminating material. For both the above additions the AO as well as the Ld. CIT (A) and the Ld. DR could not show us any incriminating material. In view of this we without going into the merit of the disallowances, direct the Ld. assessing officer to delete as they are not based on any incriminating material found during the course of the search. Addition u/s 14A - HELD THAT:- In the instant case the assessee has made an investment in the shares of foreign companies, income from which cannot be exempt as per the provisions of the Income Tax Act. Even otherwise the assessee on its own has disallowed a sum of ₹ 5767092/- only on the assumption that the provisions of section 14A read with Rule 8D is automatic and mandatory. Even otherwise the Ld. assessing officer has not recorded any satisfaction with regard to the disallowance offered by the assessee on its own. Without recording such satisfaction the AO proceeds to make any disallowance invoking rule 8D of the income tax rules is bad in law. In view of above facts we dismiss ground No. 2 of the appeal of the revenue and also dispose the cross objection filed by the assessee involving the grounds relating to disallowance under section 14A Unexplained advertisement expenses - HELD THAT:- In the present case the assessee has produced the complete details of the expenditure incurred by it in assessment and sales promotion expenditure. No fault can be found with the assessee if the parties do not respond to the notice under section 133 (6) of the income tax act. More so in the identical situation in case of assessee for years including assessment year 2010-11 the CIT (A) has deleted the disallowance after considering the overall facts and circumstances of the case. The revenue has accepted that order and therefore there is no reason to challenge the same on identical issue before the coordinate bench in absence of any change in the facts and circumstances of the case. No such change in the facts and circumstances of the case was brought on record before us
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