TMI Blog2016 (6) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... on this preliminary ground alone, the additions made by the Assessing Officer/confirmed by the Ld. Commissioner of Income Tax (Appeal) stands deleted. - ITA NO.4332/Mum/2012, ITA NO.5389/Mum/2012 - - - Dated:- 28-6-2016 - Shri Joginder Singh, Judicial Member, and Shri Ashwani Taneja, Accountant Member For The Assessee : Shri Vijay Mehta For The Revenue : Shri B.B. Rajendra Prasad-DR ORDER Per Joginder Singh (Judicial Member) The assessee as well as Revenue is in cross appeal against the impugned order dated 12/06/2012 of the Ld. First Appellate Authority, Mumbai. The only effective ground agitated by the ld. counsel for the assessee is that the ld. First Appellate Authority erred in not holding that the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate) and Mr. Asharam Mundra (Executive Director-Finance) on 12/08/2009. Thereafter, notice u/s 153C dated 13/12/2010 was issued to the assessee after recording the reasons. In response to the notice, the assessee filed its return declaring total income at ₹ 1,71,87,230/-, on 21/02/2011. Notices u/s 143(2) and 142(1) of the Act along with questionnaire were served upon the assessee to which the assessee attended the proceedings. During the assessment year 2008-09, the assessee company purchased 99.75% shares of another company namely M/s B.R. Machine Tools Pvt. Ltd. (hereinafter in short BRMTPL) vide agreement dated 02/04/2007, thus, becoming the holding company. The company acquired by the assessee did not carry on any business dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company fulfills the following conditions:- BRMTPL is not a company in which public are substantially interested. The assessee holds more than 10% voting power in BRMTPL. An advance or loan amounting to Rs. l6,67,00,000/- is given by BRMTPL to the assessee company during the year. The accumulated profits of BRMTPL was ₹ 20,07,20,638/-. Money lending is not at all a part of business of BRMTPL - as seen from its Balance Sheets of previous 4 years. 2.3. It is also noted that even in the impugned order, there is a finding (para 1.2) that it was claimed by the assessee that having carried out search, there is no specific evidence found relevant to this assessment as per section 153A, it does not au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Return of income filed u/s 139(1) 29.10.2007 16.09.2008 Date of search 12.08.2009 12.08.2009 Relevant date of issuance of notice u/s 153C 17.08.2010 17.08.2009 Last date of issuance of notice u/s 143(2) 31.10.2008 30.09.2009 he submitted that at the time of issuance of notice u/s 153C, there was no pending assessment for the assessment year 2007-08 2008-09 and therefore, they do not get abated in terms of second proviso to section 153A. In such a situation, he submitted that unless any incrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is so, no addition over and above returned income can be made, unless any incriminating document/material or information is unearthed/gathered at the time of search. This proposition has now been upheld by the Hon ble Bombay High Court in the case of Allcargo Global Logistic Ltd vs CIT, reported in 374 ITR 645 (Bom). Thus, on this preliminary ground alone, the impugned additions made by the Assessing Officer and confirmed by the CIT(A) stands deleted. 5. In the result, appeals of assessee for both the years are treated as allowed. Considering the totality of facts and the ratio laid down in the aforesaid order of the Tribunal, the only issue before us is in the absence of any incriminating material found during search, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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