TMI Blog2018 (5) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued and the AO made assessment for the year in question qua the sums declared by the assessee as gifts treating them as cash credit covered under section 153 of the Act. The Hon’ble Bombay High Court applied the view taken in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT). We, therefore, respectfully following the ratio laid down by the Hon’ble Bombay High Court, direct the AO to delete all the additions made in this year - Decided in favour of assesse - ITA Nos.467 And 468/M/2015 - - - Dated:- 14-5-2018 - SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Assessee : Shri Rahul K. Hakani, A.R. For The Revenue : Shri Anadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the supporting to ascertain the expenses incurred for the purpose of the business of the firm. 3. The Id. CIT (A) -38 erred in holding that the expenses are incurred for of f icial of the public sector bank and further erred in holding that the payment were made to off icials of public sector banks, disregarding the fact that none of the payments were made to of f icial s of the publ ic sector banks and the entire amount of expenditure incurred on Business Promotion Expenses and Entertainment Expenses is allowable as business expenses. 4. The Ld. DCIT Central Circle 40 erred in al lowing credit for tax deducted at source of ₹ 49,11,702/- from brokerage income of ₹ 6,65,40,557/- (Net of Service Tax) as against c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity as no notice under section 143(2) of the Act was issued and served upon the assessee and also there being no incriminating material found during the course of search and thus the order passed under section 143(3) read with section 153A of the Act was bad in law. 5. The facts in brief are that the assessee filed the return income on 06.10.2009 declaring an income of ₹ 4,23,76,130/-. The search action u/s. 132(1) of the Act was conducted at the office and residential premises of Bliss GVS Pharmaceutical Group on 16.11.2010. The assessee being associated member of the group and assessee s premises was also covered under the search and seizure action. Therefore, notices u/s 153A was served to the assessee on 28.05.2012 which was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of search. The Ld. A.R. submitted that the law provides that the only pending assessment on the date of search abated and not the assessment which stands completed on the date of search. The Ld. A.R. further contended that in case of abated assessment the jurisdiction of the AO is same as under the normal assessment proceedings under section 143(3) of the Act whereas in respect of unabated assessment i.e. already completed assessment on the date of search cannot be disturbed except on the basis of information/material incriminating in nature found during the search and seizure. The Ld. A.R. submitted that it is undisputed that no incriminating material/evidences were found during the search. Therefore, no addition could have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that the return was filed on 06.10.2009 whereas the search was conducted on 16.11.2010. Thus the time period for issue of notice u/s 143(2) of the Act expired on 30.09.2010 meaning thereby that the assessment attained finality on the date of search as the time limit for issue of notice u/s 143(2) has already expired. The Ld. CIT(A) has simply dismissed the ground of the assessee on this legal issue by holding that there was no assessment framed under section 143(3) of the Act prior to the date of search and therefore the AO has the powers which are co-extensive to powers in the normal assessment proceedings under section 143(3) of the Act and thus justified the addition made by the AO. In our opinion, as per the provision of section 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Bombay High Court applied the view taken in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015) 374 ITR 645 (Bom). We, therefore, respectfully following the ratio laid down by the Hon ble Bombay High Court, direct the AO to delete all the additions made in this year as the same are not based on the incriminating material. 10. In the result, the appeal of the assessee is partly allowed. ITA No.468/M/2015 (for A.Y. 2010-11) 11. At the outset, the Ld. A.R. submitted vide letter 02.03.17 requesting the Bench that the ground Nos.4 5 are not pressed as the assessee has got relief in the order giving effect to the order of Ld. CIT(A) and accordingly the same are dismissed. 12. In ground No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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