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2019 (4) TMI 954

ELD THAT:-  It is settled legal position that in case of unabated assessment u/s 153A(1)(b), unless such assessment is based upon incriminating documents seized/impounded during the course of search, no addition can be made, no infirmity can be found in the impugned order passed by the Tribunal in upholding the order passed by the Commissioner (Appeals)  -  No substantial question of law - R/TAX APPEAL NO. 1394 of 2018 With R/TAX APPEAL NO. 1395 of 2018 With R/TAX APPEAL NO. 1396 of 2018 - 12-2-2019 - MS HARSHA DEVANI AND DR A. P. THAKER, JJ. For The APPELLANT : MRS MAUNA M BHATT (174) ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. All these appeals under section 260-A of the Income Tax Act, 1961 (hereinafter ref .....

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/-. The Assessing Officer framed assessment under section 143(3) of the Act determining the total income at ₹ 39,63,985/-. Subsequently, a search action under section 132 of the Act came to be conducted at the premises of the assessee, pursuant to which proceedings under section 153A(1)(b) of the Act came to be initiated. In response to the notice under section 153A of the Act, the assessee filed return of income on 2.7.2013 declaring total income at ₹ 39,63,985/-. The proceedings culminated into assessment order dated 20.11.2014 under section 153A(1)(b) of the Act determining the total income at ₹ 44,09,219/- after disallowing interest of ₹ 4,45,234/-under section 36(1)(iii) of the Act. 3.2 Being aggrieved, the asse .....

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herefore, this is not a case where pending the proceedings had abated on account of initiation of proceedings under section 153A of the Act. 7. The Commissioner (Appeals), inter alia, placed reliance upon a decision of this court in the case of Principal Commissioner of Income Tax v. Saumya Construction Pvt. Ltd., (2016) 387 ITR 529, wherein the court has held that an assessment under section 153A in the case of unabated assessment should be connected with something found during the course of search or requisition, namely, incriminating material which reveals undisclosed income. The Tribunal has concurred with the view adopted by the Commissioner (Appeals) and has dismissed the appeal. 8. In the facts of this case, it is an admitted positio .....

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uasi-judicial authority, and hence, would be unlawful. In view of the above, the Special Auditors have not placed reliance upon the material found during the course of search in the report submitted by them. Thus, in actual fact the Special Auditors in the report under section 142(2A) of the Act have not considered the incriminating documents seized/impounded during the course of the search proceedings and hence, the submission made on behalf of the revenue that the Special Auditors have considered the documents seized/impounded during the course of search proceedings, lacks any factual basis. 9. In the opinion of this court considering the fact that it is settled legal position that in case of unabated assessment under section 153A(1)(b) o .....

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