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2024 (1) TMI 792 - ITAT MUMBAIAssessment u/s 153C/153A - disallowing spill-over additional depreciation u/s 32(1)(iia) - incriminating material found/unearthed during the course of search or not? - HELD THAT:- We note that the aforesaid claim was considered and allowed by the AO in the original assessment order u/s 143(3)/144C(13). In such a scenario, the AO ought not to have reversed the decision of his predecessor, without the aid of any incriminating material found/unearthed during the course of search to suggest that the action of AO in the first round was vitiated/obtained by fraud/bogus claim. Assessment u/s 153C/153A when no case was pending for the related assessment year - un-abated assessment - HELD THAT:- That is not the case of AO/Ld. DR, therefore, having found that for AY. 2008-09, the original assessment was passed u/s 143(3)/144C(13) of the Act on 21.11.2012, it has become final and not pending before AO (on date of search/centralization of assessee’s case), therefore, for the purpose of assessment u/s 153C/153A of the Act, AY. 2008-09 is an un-abated assessment and therefore the action of AO reversing/withdrawing the claim allowed in the original assessment on same set-off facts without any incriminating/seized materials qua assessee qua assessment year is not legally sustainable and therefore we uphold the action of Ld. CIT(A) on the legal issue and hold that the AO’s action of making disallowance of spill over depreciation is legally unsustainable. See Abhisar Buildwell (P.) Ltd [2023 (4) TMI 1056 - SUPREME COURT] and Singhad Technical Education Society [2017 (8) TMI 1298 - SUPREME COURT] Decided in favour of assessee.
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