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2018 (9) TMI 2003 - AT - Income TaxAssumption of jurisdiction u/s 153A - as argued no incriminating material was detected as a result of search and the addition was made on the basis of post-search enquiries and statements recorded u/s 132(4) - addition u/s 68 - HELD THAT:- Addition made by the Assessing Officer u/s 68 of the Act is not based on any incriminating material and is based on statements recorded during search u/s 132(4) and post-search enquiries. Addition of ₹ 39 lacs was not made on the basis of any incriminating material, but is based on statements recorded during the search u/s 132(4) and post-search enquiries. It has been held in various decisions that completed assessments cannot be disturbed u/s 153A in absence of any incriminating material. We shall refer to the leading cases on this aspect. The Hon’ble Delhi High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] has held that the completed assessment can be interfered with by the Assessing Officer while making the assessment u/s 153A only on the basis of some incriminating material found on or during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or not known in the course of original assessment. Since in the instant case addition of ₹ 39 lacs was made on the basis of statements recorded u/s 132(4) and post-search enquiry and no incriminating material was found/seized during the course of search, therefore, following the decisions cited we hold that no addition could have been made u/s 153A since the assessment was not abated in the instant case. In view of the above, we hold that the ld. CIT(A) was not justified in upholding the action of the Assessing Officer in assuming jurisdiction u/s 153A - Decided in favour of assessee. Addition applying provisions of section 56(2)(viib) - Provisions under section 56(2)(viib) of the Act cannot be made applicable to the case of the assessee inasmuch as the amount was received in the years earlier to the year under consideration. On this score the assessee succeeds. We accordingly answer the grounds in favour of the assessee and hold that the addition cannot be sustained.
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