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TMI Blog2015 (12) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... to the quantum additions are similar in both the assessment years under consideration i.e. 2004-05 and 2005-06, these appeals were heard together and disposed of by this common order for the sake of convenience. ITA No. 5077/M/2010 - 2004-05 2. Briefly stated the facts of the case are that the original return of income was filed on 31.10.2004. A survey action was conducted on 5.1.2006. During the course of which the assessee surrendered additional income and accordingly the return of income was revised on 29.3.2006. The assessment was completed u/s. 143(3) of the Act vide order dated 29.12.2006. 2.1. Subsequently a search and seizure operation u/s. 132 of the Act was carried out on 10.10.2007 pursuant to which notice u/s. 153A was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made without any incriminating material found during the course of the search, the order is bad in law. 5. Per contra, the Ld. Departmental Representative could not bring any distinguishing decision in favour of the Revenue nor the DR could point out any addition based upon any incriminating material found during the course of the search. 6. We have given a thoughtful consideration to the rival submissions. We have carefully perused the orders of the authorities below. Undisputedly, the case in hand before us relates to the assessments made u/s. 153A of the Act pursuant to search and seizure operations u/s. 132 of the Act and it is now a settled proposition of law that such assessments have to be considered in the light of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Hon'ble ITAT is correct in law in holding that the scope of Sec. 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income, that comes to the notice of the AO.? 3. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in limiting the scope of Sec. 153A only to undisclosed income when as per the section the AO has to assess the total income of the six assessment years?"- and the Hon'ble High Court of Bombay finally held as under: " We, therefore, dismiss the Revenue's appeal and answer the substantial question of law against the Revenue and in favour of the assessee". 8. If the facts of the case in hand are considered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.6.2006. A notice u/s. 143(2) of the Act was issued but no assessment made pursuant to this notice issued u/s. 143(2) of the Act. 10.1. A search and seizure operation was conducted on 10.10.2007 and accordingly statutory notices were issued, the return of income was filed and the assessment was completed u/s. 143(3) r.w. Sec. 153A of the Act. 11. The assessee carried the matter before the Ld. CIT(A) strongly contending that no incriminating documents/material was found during the course of the search and therefore the assessment made u/s. 153A is bad in law. The claim of the assessee did not find any favour with the Ld. CIT(A) who confirmed the assessment order. 12. Aggrieved by which the assessee is before us. 13. The Ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee is allowed. ITA No. 5197/M/2013 -A.Y. 2005-06 17. This appeal by the assessee is against the levy of penalty u/s. 271(1)(c) of the Act. 18. Since we have held the assessment made u/s. 143(3) r.w. Sec. 153A of the Act is bad in law in ITA No. 6123/M/2010 of even date and since we have directed the AO to delete the impugned additions, drawing support from the maxim Sublato fundaments credit Opus meaning - in the case the foundation is removed, super structure falls. Since the foundation i.e. assessment order has been removed, the super structure i.e. penalty falls. Appeal filed by the assessee is allowed. 19. In the result, all the appeals filed by the assessee are allowed. Order pronounced in the open court on 11th Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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