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2022 (8) TMI 680 - AT - Income TaxAssessment u/s 153A - Deduction u/s 80IA - whether any incriminating was found in any particular order and all of the relevant years? - HELD THAT:- We observe that for assessment year 2005-06, return of income was filed on 31-10-2005 declaring total income wherein deduction u/s 80-IA has been claimed. The regular assessment for the captioned year was also completed on 31-12-2007. Subsequently, a search action under section 132 of the Act was carried out at the premises of the assessee company and on 24-05-2010, disallowing the deduction claimed under section 80IA(4) - From the facts placed on record, we observe that there was no incriminating material found during the course of search on the basis of which deduction claimed under section 80IA(4) was disallowed by the Ld. Assessing Officer and also confirmed by Ld. CIT(Appeals). Similarly, for assessment year 2006-07, return of income was filed on 13-11-2006 declaring total income wherein deduction u/s 80-IA of Rs. 2,62,16,961/- has been claimed. The regular assessment for the captioned year was also completed on 22-12-2008. Subsequently, a search action under section 132 of the Act was carried out at the premises of the assessee company and on 24-05-2010, disallowing the deduction claimed under section 80IA(4)-. From the facts placed on record, we observe that there was no incriminating material found during the course of search on the basis of which deduction claimed under section 80IA(4) was disallowed by the Ld. Assessing Officer and also confirmed by Ld. CIT(Appeals). The Department has not been able to produce any material to suggest / substantiate that the assessment order was passed on the basis of any incriminating material found during the course of search. Therefore, in view of well settled proposition of law that completed assessment can be interfered by the Assessing Officer while making assessment u/s. 153A only on the basis of some incriminating material unearthed during the course of search documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made in the course of original assessment, we are of the considered view that in the instant facts, the Ld. CIT(A) has erred in facts and in law in upholding the additions for assessment years 2005-06 and 2006-07. Since we have set aside the assessment order on the issue of jurisdiction itself, we are not separately discussing the merits of the case.
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