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2017 (8) TMI 1544 - AT - Income TaxAssessment u/s 153A - no incriminating material being available against assessee in search u/s 132 on basis of which notice was issued u/s 153(A)(1)(a) - HELD THAT:- We find the assessee in the instant case has filed his original return of income on 30th March, 2012 declaring total income of ₹ 3,92,11,220/-. In response to notice u/s. 153A of the IT Act, the assessee filed return in response to notice u/s 153A on 5th January, 2015 declaring the same income. The assessee in his return of income had claimed exemption of long term capital gain of ₹ 5,62,61,726/-. The assessment order was passed u/s 143(3) read with section 153A by making addition of the long term capital gain as bogus. From the order of the assessing officer, we find nowhere it is mentioned that any incriminating material was found during the course of search. The entire addition made by the AO is based on post search inquiries. There is also no ground by the revenue that any such incriminating material was found other than the statement of Shri Sundeep Gupta at the time of search. Under these circumstances, we have to adjudicate as to whether the CIT(A) has erred in deleting the addition made by the AO in absence of any incriminating material. Hon’ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] has held that addition cannot be made in absence of any incriminating material and the decision in the case of Smt. Dayawanti Gupta has been duly considered Since the Hon’ble Jurisdictional High Court has clearly held that addition in order passed u/s 143(3)/ 153A cannot be made in absence of any incriminating material and since in the instant case, there is no evidence whatsoever on record that any incriminating material was found during the course of search and since the addition was made on the basis of certain inquiries conducted subsequent to the search on the basis of return already filed, therefore, on this issue itself addition has to be deleted. We, therefore, uphold the order of the CIT(A) and dismiss the ground raised by the revenue.
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