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TMI Blog2013 (5) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ") for the assessment year 2005-06. We first take up assessee's appeal in ITA no.8917/Mum./2010, for the assessment year 2005-06, vide which, following grounds have been raised:- (i) In ground no.1, the assessee has challenged that no addition could have been made while completing the assessment made under section 153C as the assessment for assessment year 2005-06, stood completed and no material was found as a result of search so as to make any addition on account of undisclosed income; (ii) In ground no.2, the assessee has challenged the addition of Rs. 10,00,000 on account of gift received by the assessee during the year under section 68; and (iii) In ground no.3, the assessee has challenged disallowance of Rs. 1,01,300 under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income filed by the assessee has attained finality and no assessment was pending, such an assessment cannot be abeted in view of the provisions of section 153A and in such a situation, once no incriminating material has been found, during the course of search, no addition can be made over and above the return of income which has attained finality. In support of his contentions, he relied upon the Mumbai Special Bench decision of the Tribunal in All Cargo Global Logistic Ltd. v/s DCIT, [2012] 137 ITR 287 (SB) (Mum.) and the co-ordinate bench decision of the Tribunal, Mumbai Bench, in Gurinder Singh Bawa v/s DCIT, [2012] 28 Taxman.com 328 (Mum.). Copy of these case laws is placed on record. Thus, he submitted that neither the addition of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and the findings of the Assessing Officer and the learned Commissioner (Appeals), we find that there is no reference to any seized material or any incriminating documents so as to suggest that addition made in the assessment order are based on any incriminating material found at the time of search. Once that is so and also that the assessment for the assessment year 2005-06 has attained finality before the date of search, then no addition can be made under section 153A. The Mumbai Special Bench decision of the Tribunal in All Cargo Global Logistic Ltd. (supra), after analyzing the relevant provisions of the Act, came to the following conclusion and ratio:- "(a) In assessment that are abated, the Assessing Officer retains the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 153A, in all cases, where search is conducted under section 132 of the Act, AO is empowered to assess or reassess total income of six assessment years preceding the assessment year in which search was conducted. The section also provides that assessment or reassessment relating to any assessment year falling within period of six assessment year if pending on the date of initiation of search shall abate. There have been divergent views regarding scope of application of section 153A in cases where no incriminating material was found indicating any undisclosed income. Some of the Tribunal Benches had taken the view that in case no incriminating material was found AO had no jurisdiction to make assessment or reassessment under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the assessment had been completed under summary scheme under section 143(1) and time limit for issue of notice under section 143(2) had expired on the date of search. Therefore, there was no assessment pending in this case and in such a case there was no question of abatement. Therefore, addition could be made only on the basis of incriminating material found during search." Thus, on the facts of the case, we hold that the additions made by the Assessing Officer with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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