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2017 (2) TMI 1194 - ITAT MUMBAIAssessment u/s 153A - addition u/s 68 - Bogus gift received - unabated assessments - search activities - Held that:- We find from the record that the return of income was filed on 29.10.2004 whereas the search was conducted on 17.1.2008 meaning thereby the assessee for the assessment year 2004-05 had attained finality on the date of search. In terms of section 153A of the Act, the already finalised assessment can only be disturbed if the search team has found some incriminating documents or material and which was relied upon by the AO at the time of framing the assessment or the addition is made in the order passed under section 143(3) r.w.s.153A of the Act by referring to seized material and not otherwise. As in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT ) held that where the assessments have abated upon the issuing the notice u/s 153A of the Act the AO has original jurisdiction as well as jurisdiction under section 153A so far as assessments for six assessment years are concerned. The Hon’ble High Court further held that no addition can be made in respect of unabated assessments which have become final if no incriminating material is found during search. The facts of the assessee are identical to one as has decided by the co-ordinate Bench of the Tribunal in assessee’s husband case [2015 (1) TMI 658 - ITAT MUMBAI] where the search was conducted simultaneously and the fact are identical. We, therefore, respectfully following the decision of the Co-ordinate Bench of the Tribunal and set aside the order of ld.CIT(A) and direct the AO to delete the addition made u/s 68 of the Act. - Decided in favour of the assessee
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