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2018 (8) TMI 1313 - AT - Income TaxProtective assessment u/s 143(3) r.w.s 153C - ITAT cancelled the protective assessment holding that once substantial assessment is made, protective assessment has no legs to stand - purchase of gold and diamonds. - Held that:- In the instant case the AO has not made any addition on the basis of incriminating material belonging to the assessee, found from the searched person u/s 132 of the Act. The addition was made on the basis of entries in the regular books accounts revisiting the same. Therefore, facts of the case are squarely covered by the decision of this tribunal in the case of Lalitha Devi [2018 (4) TMI 337 - ITAT VISAKHAPATNAM] and the decision of Hon’ble Supreme court in the case cited. The notice issued u/s 153C without jurisdiction and is invalid. Thus the consequent additions made in the order is beyond the scope of section 143(3) r.w.s. 153C and are unsustainable. Further, since the AO has made the addition substantively in the hands of HUF, in the year 2009-10 and there was no ambiguity in the mind of the assessing officer with regard to the beneficiary, there is no case for making the protective assessment. Protective assessment is made when there is ambiguity with regard to the actual beneficiary. - having made addition substantively in the hands of HUF, the addition made on protective basis required to be deleted. - Decided against the revenue. Depreciation of windmill and computation of short term capital gains on sale of windmill - Held that:- the sale consideration of wind mill require to be bifurcated towards the land and the windmill but not the wind mill alone. The revenue during the appeal hearing did not place any material to controvert the finding given by the Ld.CIT(A).The AO has not disputed the basis for apportioning of sale price towards the land cost on the basis of indexed cost of acquisition. - The assessee has not claimed any depreciation on the land, therefore we hold that assessee has rightly allocated the sale consideration towards the windmill and the land and did not commit any error in deducting the indexed cost of land from the sale consideration of the wind mill and offering the balance amount towards the sale price of wind mill. - Decided against the revenue. Income from house property - AO observed that assesse has suppressed the receipt toward rental income - Held that:- Having credited the rent to the books of accounts and shown as debit balance, the assessee cannot deny the same for admission of income. In case, the rent is not realised, the assessee is free to claim the same as deduction as and when the same was written off as per law. The assesse also did not furnish any confirmation letter from the lessee to support the rent due - Additions confirmed - Decided against the assessee.
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