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2017 (12) TMI 674 - HC - Income TaxAddition under section 153A - addition u/s 68 - Held that:- In the facts of the present case, the Tribunal has recorded a finding of fact to the effect that no incriminating material had been found during the course of the search proceedings and that the statement of the director which is stated to have been recorded during the course of search under section 131 of the Act, and which forms the basis for the impugned addition, was recorded much later on 7.12.2009. In the light of the cited decision Principal Commissioner of Income Tax v. Saumya Construction P. Ltd., [2016 (7) TMI 911 - GUJARAT HIGH COURT] it was not permissible for the Assessing Officer to make any addition under section 153A of the Act when no incriminating material had been found during the course of the search. Lack of approval under section 153D - Whether it would invalidate the assessment order and was not a curable defect? - Held that:- In the facts of the present case, as the assessment order has been passed by an Income Tax Officer, the requirement of obtaining the prior approval of the Joint Commissioner under section 153D of the Act was absolute. The Tribunal, however, has recorded a finding of fact that there is nothing on record to indicate that the prior approval of the Joint Commissioner was obtained. As a natural corollary therefore, in the absence of the requirement of prior approval of the Joint Commissioner being satisfied, the whole proceeding would stand invalidated. The Tribunal was, therefore, wholly justified in holding that the impugned order of assessment would stand vitiated in view of non-compliance of the provisions of section 153D of the Act. On this count also, therefore, the appeal, does not merit acceptance.
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