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2019 (3) TMI 568 - ITAT PUNEAssessment u/s 153A - Clubbing of income of minor son in the hands of the assessee as Short Term Capital Gain - whether case of non-abated assessment? - HELD THAT:- It is an undisputed fact that no incriminating material was found during the course of search that would have resulted in any addition in income returned by the assessee. It is also an uncontroverted fact that assessment consequent to the return of income filed u/s.139 of the Act for the assessment year 2006- 07 was completed. Thus, on the date of search, no assessment was pending which could have abated. In other words, it is a case of non-abated assessment. It is a well settled law that no addition can be made in respect of assessments which have become final if no incriminating material is found during search. Addition of interest on Public Provident Fund (PPF) accounts - AO made addition on the ground that the assessee is having multiple PPF accounts and whereas, the assessee can claim benefit of deduction in respect of only one such PPF account - HELD THAT:- The addition has been made by the Assessing Officer merely on change of opinion. The return of the assessee filed u/s.139 of the Act was subject to scrutiny assessment. The assessment order u/s.143(3) of the Act was passed on 29.12.2009 i.e. much prior to the date of search. Thus, it is a case of nonabated assessment. No incriminating material, whatsoever, was found during search and seizure action that could have resulted in addition during the impugned assessment year. Therefore, following the detailed reasons given while adjudicating appeal of Revenue assessment year 2006-07, the present appeal of the Revenue for assessment year 2007-08 is dismissed being devoid of any merit. Addition of investment in plot of land - undisclosed investment - HELD THAT:- We find that the plot in question has been disclosed in the list of immovable properties as on 31.03.2001. Since the purchase of asset has already been reflected in the Balance Sheet for the financial year ending in which the asset was purchased, mere seizure of some documents pertaining to the said property would not make the documents incriminating. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in deleting the addition. Accordingly, the impugned order is upheld and the appeal of Revenue for the assessment year 2008-09 is dismissed being devoid of any merit. Change of head of income - assessee disclosed gain from trading in shares under the head “capital gains” but AO changed the head of income to “Business Income” - Held that:- It is an undisputed fact that there was no pending assessment and no incriminating material was found during search. Thus, it is a case of non-abated assessment. The Assessing Officer cannot make addition by merely changing head of income in assessment proceeding u/s.153A of the Act, without there being any incriminating material in a case of closed assessment. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in deleting the addition. - Decided against revneue
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