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2018 (3) TMI 1975 - AT - Income TaxAssessment u/s 153C - Date of initiation of search or making of requisition - HELD THAT:- It is prescribed that for the purposes of examining the efficacy of the second proviso to Sec.153A(1) - reference to the date of initiation of search or making of requisition contained therein, shall be construed as reference to the date of receiving of books of account or documents or assets seized or requisitioned by the AO having jurisdiction over the other person from the AO of the searched person. In the present case, it transpires that the AO of the searched person, as also the AO of the captioned assessee, who is the ‘other person’, are the same. Onus was on the AO to canvass as to what is the date on which he formed a satisfaction that the material found in the search of M/s. Reliable Paper (India) Ltd. related to the captioned assessee. The said onus obviously has not been discharged by the Assessing Officer inasmuch as it has been canvassed before CIT(A) that he was unable to do so. Be that as it may, under these circumstances, the only option left to the CIT(A) was to take the date of issuance of notice u/s 153C of the Act as the date referred to in the first proviso to Sec 153C(1) - Considered on that basis, CIT(A) concluded that the original assessments for the captioned assessment years did not abate, as the same were not pending on that date. As perused the additions which have been made to the returned income and find that none of them contain any averment by the AO that the same flow out of any incriminating material found in the course of search. This finding has also been arrived at by the CIT(A), and in the absence of any rebuttal by the Revenue, we hereby affirm the same. In this fact-situation, the ratio of the judgment in the case of Continental Warehousing Corporation (Nhava Sheva Ltd) [2015 (5) TMI 656 - BOMBAY HIGH COURT] is squarely attracted, and CIT(A) made no mistake in deleting the additions. The order of CIT(A) is hereby affirmed. Thus, the appeals of the Revenue for AY 2004-05 to 2009-10 are dismissed as above. Insofar as the reliance placed by the Revenue on the judgments of the Hon'ble Kerala High Court in the case of CIT vs. St. Francis Clay Decor Tiles [2016 (6) TMI 378 - KERALA HIGH COURT], CIT vs. Dr. P. Sasikumar [2016 (7) TMI 1227 - KERALA HIGH COURT] and E.N. Gopakumar vs. CIT [2016 (11) TMI 72 - KERALA HIGH COURT], are concerned, in our view, the same are untenable since the judgment is directly available on the point and the same has been justifiably invoked by the CIT(A) to delete the impugned additions, which is hereby affirmed. - Decided against revenue.
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