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2016 (8) TMI 362 - ITAT DELHINature of assessment - seizure operation u/s 132 - whether, the order ostensibly passed u/s 143(3) of the Act, should be considered as that which is actually passed u/s 153C/u/s 153A r.w.s. 143(3)? - Held that:- The impugned order passed by the A.O. was only u/s 153A r.w.s. 143(3) of the Act or 143C of the Act. As the search in the case of the assessee had taken place on 10th April, 2006, the A.Y. of search is 2007-08 and not the impugned A.Y. 2006-07. During the impugned A.Y. 2006-07, the assessment may have been framed u/s 153C of the Act, if it is an offshoot of the search at the residence of the family of the assessee on 22nd March, 2006. If it is presumed that the order was passed u/s 153C, then it has to be struck down on the ground that, the requisites of S.153C are not fulfilled. Alternatively if it is presumed that the assessment passed u/s 153A of the Act, as a consequence to a search on the locker of the assessee on 10th April, 2006, the additions made in the assessment have to be deleted for the reason that, the same are not based on any incriminating material or assets seized during the search. As in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ) wherein it is laid down that no addition can be made in the assessment being framed u/s 153A, when there is no incriminating material or assets seized during the course of search. The appeals of the assessee have to be allowed for the reason that the assessment cannot be taken as an assessment passed u/s 143(3) of the Act per se and also for the reason that if the assessment has taken as passed u/s 153C r.w.s. 143(3) of the Act, then it has to be struck down on the ground that the requisite procedures laid down in the Section are not followed or in the alternative if it is taken as assessment passed u/s 153A r.w.s. 143(3) of the Act, the addition has to be deleted for the reason that, the same is not based on the assets founds in the locker of the assessee. - Decided in favour of assessee
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