TMI Blog2013 (5) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... am P. Mali, filed for assessment years 2001-02 2002-03, respectively (i.e.ITA Nos.786 787/Mum/2013). The assessee has filed modified/amended grounds which are almost similar to the grounds taken originally, therefore, the grounds are taken on record for both of the years i.e. 2001-02 2002-03, respectively. 4. Learned counsel of the assessee in its appeals raised objection in regard to confirming the addition of ₹ 1,00,002/- made under Section 69 of the Act for these two years respectively. The assessee has also objected that the additions made by the AO, which is confirmed by the CIT(A) under Section 153A of the Act, is illegal as it is neither based on any incriminating material nor based on any books of accounts and other d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and their creditworthy remained unproved, therefore, he admitted the genuineness of the creditworthiness of the donors. Accordingly, he treated the amount of gift received by the assessee as his own money and added the same under Section 69A of the Act. 6. Being aggrieved with the order of the AO, the assessee preferred appeals before the learned CIT(A). Detailed submissions were filed before him. However, learned CIT(A) was also not satisfied with the contention of the assessee. In his view also, the assessee failed to prove the genuineness of the loan and creditworthiness of the amount received under the garb of gift. Learned CIT(A) also placed reliance in the case of Subhash Chandra Sekri Vs. DCIT, reported in 290 ITR 300 (P H) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that no incriminating documents except gift deeds were found during the course of search, neither there was any books of accounts found which were not produced before original assessment proceeding. Therefore, addition made under Section 153A is not justified and liable to be deleted. 8. Attention of the Bench was drawn on relevant portion of the order of the Special Bench in case of All Cargo Global Logistics Ltd. (supra). It was further submitted that in case of original assessment certain other additions were made which was agitated before the CIT(A) and then before the Tribunal. Attention of the Bench was also drawn on the copy of the order of the Tribunal, which is placed in the paper book. Accordingly it was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk statement placed in the compilation filed on behalf of the assessee. In bank statement, it is clearly shown that the amount of gift which was taken by the assessee through cheque was credited in respect of donors few days earlier only, otherwise there was no bank balance in the respective account of the donors. 11. I have heard rival submissions and considered them carefully. After examining the submissions and the case laws, I found that the assessee deserves to succeed in its appeal for both of the years. I noted that the assessment for assessment year 2002-03 was completed under Section 143(3) and for assessment year 2001-02, the assessment was completed under Section 143(1). During the assessment proceeding for assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search. 12. From the finding of the Special Bench, it becomes clear that in case of assessment already completed, no addition can be made further while completing the assessment under Section 153A, if there is no incriminating material, which in the context of relevant provision, means (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search. 13. In the present case, neither any incriminating m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other assessee i.e. Samrathmal P. Mali filed for the assessment year 2001-02 (i.e ITA No.318/Mum/2013). 16. Similar ground has been raised in this appeal also. The assessee is objecting in confirming the income of ₹ 1,00,002/- under Section 69A while completing the assessment under Section153A. 17. Identical facts are involved in the case of this assessee also. The assessment was completed under Section 143(3) and all the details in respect of gift received by this assessee was filed. No addition was made by the AO while completing the assessment under Section 143(3).Thereafter while completing the assessment under Section153A, the impugned additions were made as treating the gift as non-genuine. Learned CIT(A) has confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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