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2023 (6) TMI 721 - ITAT MUMBAIAssessment u/s 153A - search action not undertaken on the appellant but was undertaken on his employer - HELD THAT:- As decided in case of JM trading Corporation [2007 (9) TMI 447 - ITAT MUMBAI] wherein it has been held that is a condition precedent to be satisfied before start of any proceedings against the assessee the search only should not have been merely initiated but conducted. Tribunal is required to verify whether the jurisdictional facts exist before notice can be issued u/s 158BC. In the present case, we find that search warrant is issued in the name of the assessee while opening the locker. The keys of the locker were found from the residential premises of the assessee during the course of search on employers residence of the assessee. Search was initiated as well as conducted on the assessee and therefore it is mandatory to issue notice u/s 153A of the act on the assessee. We find no infirmity in the order of the learned CIT – A in upholding the same. Bogus long-term capital gain - addition in hands of employer v/s employee - No details of the exit providers to the assessee as well as accommodation entry providers with respect to purchase of shares is available in the assessment order. We found that the CIT – A has made an addition u/s 69C as well as u/s 68 of the act in the hands of emploer [Mr Kishan Khaderia] therefore, even if the above long-term capital gain is held to be bogus based on the material available in the mobile phone of the assessee, this addition also cannot be made in the hands of the assessee but has to be made if at all to be made in the hence of Mr Kishen Khaderia. This is the finding of the CIT – A. Therefore, even otherwise, if this addition is required to be made it should be made in the hands of the employer of the assessee and not this assessee. Decided in favour of assessee.
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