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2016 (9) TMI 1147 - AT - Income TaxValidity of proceeding under section 153A - no notice under section 143(2) issued within the statutory period available - disallowance under section 40A(3) - existence of incriminating material - Held that:- Original return of income under section 139(1) of the Act was filed on 17/09/2009 and no notice under section 143(2) of the Act was issued within the statutory period available, which expired on 30/09/2010. Since in the case of the assessee search was conducted on 21/01/2011, no assessment was pending as on the date of the search. This fact has not been disputed by the learned CIT (DR). Further, we find from the assessment order that in the addition made for disallowance under section 40A(3) of the Act, there is no reference of any incriminating material found during the course of search. Thus, on the date of search, undisputedly no assessment was pending for abetment and it is also an undisputed fact of the present case that no incriminating material was found during the course of search. Thus, we find that on fulfillment of these two conditions i.e. no incriminating material was found during the course of search and no assessment was pending as on the date of the search, no addition could have been made in the proceeding under section 153A of the Act in the case of the assessee. We, thus, respectfully following the ratio laid down in the case of decision of the Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ), we hold that no addition could have been made in the case of the assessee for the year under consideration. - Decided in favour of assessee.
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