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2017 (6) TMI 1

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....Tax Act, 1961 (hereinafter the Act). 2. During hearing, Shri Girish Dave, ld. Counsel for the assessee, contended that the quantum addition on the basis of which, penalty was imposed has been decided in favour of the assessee vide order dated 14/01/2016 (ITA No.7282 to 7284 and 7405/Mum/2013). The ld. Counsel also filed the copy of the aforesaid order dated 14/01/2016. This factual assertion of the assessee was not controverted by the ld. DR, Shri Rajesh Kumar Yadav. 2.1. We have considered the rival submissions and perused the material available on record. In view of the above, we are reproducing hereunder the relevant portion from the aforesaid order dated 14/01/2016 for ready reference and analysis:- "7. There are four appeals under c....

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....s not covered u/s 132 of the Act by drawing an assessee's specific. There was survey action u/s 133 of the Act. Further, he informed that in all these assessment years, AO made assessments u/s 143(3) r.w.s 153C of the Act without having seized any documents from the premises of the search person implicating the assessee on the issue of unaccounted income. Referring to the documents seized namely the 'gift' relating transaction between Mr. Shivlal and the assessee and the statement showing payment for purchase of plot (para 'c' of page '7' of the CIT (A)'s order is relevant), which are seized from the search premises, ld Counsel for the assessee demonstrated that the 'gift' in question was an accounted one, duly declared in the return of inc....

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....each of the assessment order and the additions made by the AO, Ld Counsel for the assessee demonstrated that there is no reference to the seized material in any of the additions made by the AO. In support of his contention that when there is finding or discussion about the any incriminating material seized during the search, the assessment order passed u/s 153A r.w.s 143(3) of the Act is not tenable in law, Ld Counsel for the assessee filed written submissions and also relied on following decisions viz., (i) CIT vs. Smt Shaila Agarwal, 346 ITR 130; (ii) All Cargo Global Logistics Ltd vs. DCIT [18 ITR 106] (Mum.) (SB); (iii) Spacewood Furnishers Pvt Ltd Ors vs. DGIT & Ors. [340 ITR 393 (Bom)] (iv) Shri Govind Agarwal v. ACIT being ITA No: 33....

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....g the factual matrix of the case as well considering the above settled legal position of the issue that in the absence of any incriminating material found during search, additions made on the assessed income are unsustainable in law, we are of the considered opinion that the additions made in the instant case are not sustainable and accordingly, we delete the same." 2.2. We find that the Tribunal, in the aforesaid order, on quantum addition, quashed the notices issued u/s 153/153C of the Act were held to be invalid, resultantly the assessment orders passed u/s 143(3) r.w.s 153C dated 29/12/2008 were cancelled. Identically, for Assessment Year 2001-02 and 2003-04 in the case of assessee itself, the Tribunal vide order dated 02/01/2017 (ITA....