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2015 (10) TMI 1761 - BOMBAY HIGH COURT

2015 (10) TMI 1761 - BOMBAY HIGH COURT - [2016] 386 ITR 483 - Gifts received from family members - Could not be proved to be genuine by the Assessee - whether income related to incriminating documents found during the search u/s 132 could be assessed u/s 153A even though the provisions of Section 153A mandate that the Assessing Officer assess or reassess the Total Income of the Assessee searched u/s 132? - ITAT deleted the addition - Held that:- On issue of jurisdiction itself the issue stands c .....

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uted by the revenue that the decision of this Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under Section 153A of the Act. The occasion to consider the issues raised on merits in the proposed questions becomes academic. No substantial question of law. - Decided against revenue. - Income Tax Appeal No. 1839 of 2013 - Dated:- 5-10-2015 - M S Sanklec .....

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facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition of ₹ 93,72,310/- made by the Assessing Officer and confirmed by the CIT(A) being gifts received from family members which could not be proved to be genuine by the Assessee, by holding that only income related to incriminating documents found during the search u/s 132 could be assessed u/s 153A of the Act even though the provisions of Section 153Amandate that the Assessing Officer ass .....

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the respondent-assessee was processed under Section 143(1) of the Act. Admittedly, no notice under Section 143(2) of the Act has been issued. Thereafter on 5 January 2007, a search was conducted on the respondent-assessee under Section 132 of the Act. Consequent thereto, proceedings under Section 153A of the Act were initiated. During the assessment proceedings for A.Y. 2005-06, the Assessing Officer added an amount of ₹ 93.72 lakhs (declared as gifts) as being covered by Section 68 of th .....

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ores. 4. In appeal, the CIT(A) held that the addition of an amount of ₹ 43.67 lakhs as deemed dividend has to be deleted. This on the ground that there were no accumulated profits available with M/s K.P. Developers (P) Ltd. to distribute amongst it's shareholders. However, so far as the addition in respect of the unexplained gifts aggregating to ₹ 93.70 lakhs is concerned, the CIT(A) did not disturb the finding of the Assessing Officer. 5. On further appeal before the Tribunal, t .....

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ncriminating material was found during the course of the search. Thus the entire proceedings under Section 153A of the Act were without jurisdiction and therefore the addition made had to be deleted on the aforesaid ground. The impugned order also thereafter considered the issues on merits and on it also held in favour of the respondent-assessee. 6. Mr. Kotangale, the learned Counsel for the revenue very fairly states that the decision of the Special Bench of the Tribunal in AlCargo Global Logis .....

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