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2022 (12) TMI 639 - AT - Income TaxAssessment u/s. 153A r.w.s. 153C - Incriminating material available on records found or not ? - HELD THAT:- We hold that there is no incriminating material available on records which were found during the course of search which could have been used by the assessee for disturbing the returned income of the Assessee for AY 2010-11. Accordingly, we allow Ground no 1 of the Appeal. Resultantly, all additions made in the order do not survive. Non issue of notice u/s 143 (2) in case of assessment u/s 153C - HELD THAT:- As we note that these discussions by the CIT(A) are beside the point inasmuch as in the submissions before us, the assesse has submitted that assessee has received notice u/s. 143(2) issued by AACIT, Circle 42, Mumbai to the assessee. Hence, this argument by the assessee before the CIT(A) that notice u/s. 143(2) has not been issued is not factually correct. Hence, the said issue by the assessee is dismissed. Correct head of income - sale of land and development rights - capital gain shown by assessee on sale of land and development rights, treated by it its computation of income as income chargeable to tax under the Head “capital gains" but learned AO considered it as “income from Business and Profession” - HELD THAT:- Neither the AO, nor the ld. CIT (A) and ld. DR before us could not show above any incriminating material found during the course of search. In absence of incriminating material, we hold that orders of the ld. Lower Authorities are non-sustainable in view of the decision of honorable supreme court in case of Sinhgad Technical education society [2015 (4) TMI 190 - BOMBAY HIGH COURT] . Hence we allow ground no 4 and 5 of the Appeal. Addition of on money income on account of sale of car parking - taxation of on money on sale of flats - HELD THAT:- We find that both this issues were discussed by the coordinate bench in the case of the assessee for AY 2011 -12 [2022 (2) TMI 808 - ITAT MUMBAI] and held that there is no incriminating material available for making such addition in the hands of the assessee in case of a concluded assessment. Before us also same document andstatements are relied up on by the lower authorities as well as the ld. DR. Judicial Discipline demands that unless, there is manifest error, same needs to be followed. No infirmities werepointed before us by the ld. DR in the order of coordinate bench, therefore, there is no reason to deviate from the same. On careful analysis, we find that in the order of CIT (A) in appeal before us is identical to Para no 13 of the decision of the coordinate bench where the addition of unaccounted on money on sale of flats was confirmed by him [ the Ld. CIT (A) for AY 2011-12] . When the findings of ld. CIT (A) are ad verbatim for this appeal compared to AY 2011-12, where the coordinate bench has deleted the addition, we have no reason to differ from the same. Accordingly,ground no 6 & 7 of the appeal are allowed
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