TMI Blog2017 (2) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... Court further held that no addition can be made in respect of unabated assessments which have become final if no incriminating material is found during search. The facts of the assessee are identical to one as has decided by the co-ordinate Bench of the Tribunal in assessee’s husband case [2015 (1) TMI 658 - ITAT MUMBAI] where the search was conducted simultaneously and the fact are identical. We, therefore, respectfully following the decision of the Co-ordinate Bench of the Tribunal and set aside the order of ld.CIT(A) and direct the AO to delete the addition made u/s 68 of the Act. - Decided in favour of the assessee - ITA NO.3832/Mum/2012, ITA NO.4334/Mum/2014 - - - Dated:- 24-2-2017 - SHRI MAHAVIR SINGH, JM AND SHRI RAJESH KUMAR, AM For The Assessee : Shri Vipul Joshi Ms.Keyuri Desai For The Revenue : Shri N P Singh PER RAJESH KUMAR, A. M: The appeal bearing ITA No.3832/Mum/2012 filed by the assessee against the order dated 29.2.2012 passed by the ld.CIT(A), 39, Mumbai and the Appeal bearing ITA No.4334/Mum/2014 is also filed by the assessee against the order dated 3.3.2014 passed by the ld.CIT(A) against the penalty imposed by the AO u/s 271(1)( c ) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making addition of ₹ 23,78,000/- on account of gift received and disallowance of ₹ 1,08,238/- u/ s.14A in the assessment u/s 153A of the IT Act as no relevant or incriminating material or evidence was found or seized during the course of search reflecting undisclosed income. 2. That on the facts and in the circumstances of the case, the addition of ₹ 23,78,000/- and disallowance of ₹ 1,08,238/- by the AO being without any basis deserves to be deleted 4. The FAA dismissed the legal ground raised by the assessee by holding that certain documents were found with regard to alleged gift and statement was recorded of the appellant s husband during the course of search which proved the gift to be non-genuine. The ld. AR vehemently submitted before us that the return of income was filed by the assessee on 29.10.2004, whereas the search was conducted on 17.1.2008. The ld. AR submitted that the assessment was completed under section 143(1) of the Act and therefore in terms of section 153A of the Act the assessment as on the date of search the assessment was already complete and attained finality and has abated. The ld. AR further submitted that in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions u/s 132 of the Act on 17.01.2008 in the hands of Edit II Group of cases and the assessee was also subjected to search operations. Consequent thereto these the assessments under consideration were completed by the assessing officer u/s 143(3) r.w.s. 153A of the Act. The additions made by the assessing officer in these three years, having been confirmed by Ld CIT(A), the assessee has preferred these three appeals before us. 3. We shall first take up the appeal filed for AY 2003-04. For this year, the assessee had originally filed return of income on 25.10.2002 and the assessment was completed u/s 143(3) on 30-01-2006. Hence, as on the date of search, the AY 2003-04 falls in the category of concluded assessment and hence it would not be abated u/s 153A of the Act. In the financial year relevant to this assessment year, the assessee had received a sum of ₹ 50.00 lakhs as gift from a Dubai National, who happened to be his non-relative. This gift amount had already been declared in the original return of income. In sec. 153A proceedings, the assessing officer assessed the above said gift of ₹ 50.00 lakhs as income of the assessee and the same was also confirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any incriminating material:- (a) CIT Vs. M/s Murli Agro Products Ltd (ITA No.36 of 2009 dated 29-10-2010) (b) Smt Lakshmi Singh Vs. DCIT (ITA No.113/PNJ/2014 dated 09-12-2014) 7. We have heard the rival contentions and perused the record. The admitted facts are that the assessee had duly disclosed the receipt of gift of ₹ 50.00 lakhs in the original return of income filed for this year well before the date of search. It is also an undisputed fact that the assessing officer, during the course of original assessment proceedings, has made enquiries about the gift not only with the assessee, but also with the donor directly. Both the assessee as well as the donor has duly replied to the queries raised by the AO. Having satisfied with the genuineness of the gift, the assessing officer did not make any addition. 8. During the course of search proceeding, the department has found the gift confirmation letter and the AO has proceeded to examine the same on the basis of this document. In this regard, we agree with the contentions of the Ld A.R that this gift confirmation letter cannot be considered to be an incriminating material warranting an examination, sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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