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2021 (8) TMI 235 - AT - Income TaxAssessment u/s 153A - absence of incriminating material found during the course of search - time limit for issuance of notice under section 143(2) - HELD THAT:- The additions made by Assessing Officer in assessment for AY 2011-12 are not based on any evidence, belonging to the assessee found during the search. All the additions are based on the copy of drafts of Statakhat (agreement) of different lands which were impounded during the course of survey under section 133A from the premises of A Sai Leela Associate, 302, SNS House-3 Athwalines, Surat. - no addition made on the basis of document which were believed to belonging to the assessee while recording satisfaction. There is no dispute that the assessee filed his return of income for AY 2011-12 on 27.03.2013 under section 139(4). The time limit for issuing notice under section 142(3) was expired on 30.092013. The assessing officer after recording satisfaction, issued notice under 153C dated 16.09.2014. Admittedly, no assessment for AY 2011-12 was pending when notice under section 153C was served on the assessee. Additions made by Assessing Officer in assessment for AY 2011-12 are not based on any evidence, belonging to the assessee found during the search. It is settled law that no addition can be made in the unabated assessment in absence of evidence found during the search. During the hearing before us, no evidence or material was brought to our notice that any of the addition either on substantive or on protective is based on evidence found during the search. We further find that the order of ld CIT(A) is in consonance with the decisions of Jurisdictional High Court in Saumya construction (P) Ltd. [2016 (7) TMI 911 - GUJARAT HIGH COURT], Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Continental Warehousing (Nhava Sheva) Ltd [2015 (5) TMI 656 - BOMBAY HIGH COURT] which we affirm. Thus, in view of the aforesaid discussions, we do not find any merits in the grounds of appeal raised by the revenue. LTCG - year of assessment - capital gain in the hand of other coowners - Transfer of asset u/s 2(47) - AO while passing the assessment order for AY 2011-12 withdrew the LTCG and directed to tax it in AY 2013-14 - revenue vehemently submitted that no performance of transfer of land in AY 2011-12 as held by CIT-A and that the sale deed of the impugned land was executed during the period falls in AY 2013-13 - HELD THAT:- DRB Ravani builder stared project on the land introduced by the assessee and his co-owners and Ravani family. During the search the partner of the DRB Ravani Developer undisclosed income and paid due tax on the said discloser. The revenue accepted the discloser and accepted the tax in assessment order dated 22.03.2013. DRB Ravani Builder also had shown the land in their books of account, which is neither doubted nor disturbed by the revenue. Further all the co-owner of the assessee also offered similar Capital gain in AY 2011-12, which was accepted by the revenue. The revenue has not made re-opening of any of those co-owners, which has attained finality. Thus, in view of the aforesaid discussions, we accept the submission of the ld CIT(A), in addition to affirm the order of ld CIT(A) on this issue. Year of assessment/ taxability - sale deed of the impugned land was executed during the period falls in AY 2013-13 and that the assessee cannot choose the year of taxability as per his choice - Considering the facts that the revenue has accepted the capital gain in the hand of other coowners in AY 2011-12, the possession of the land was handed over on 01.11.2010, the land was introduced as capital contribution in the Firm. The Firm started its development activities and offered income for taxation. The assessee received part consideration in AY 2011-12. Further, the assessee and his co-owners were prevented from executing the sale deed in favour of the purchaser, due to injunction of Civil Court. Thus, the land was substantially transferred to the purchasers in AY 2011-12.
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