TMI Blog2023 (4) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... - BOMBAY HIGH COURT] has held that where there is no pending assessment and no incriminating material is found during search, no addition can be made in assessment proceedings u/s. 153C r.w.s. 143(3) Addition invoking proviso to section 79 in assessment proceedings u/s 153C - Whether CIT(A) has erred in holding that it is a case of unabated assessment? - HELD THAT:- The assessee is a subsidiary of Indiabulls group. A perusal of the assessment order would show that the addition made u/s. 79 of the Act is not based on any incriminating material found and seized during the course of search. In so far as the argument of the ld. Departmental Representative that it is a case of abated assessment, the same is unsubstantiated, hence rejected. In absence of any incriminating material coupled with the fact that it is a case of unabated assessment, no addition could have been made by the Assessing Officer based on any material which was already available on record at the time of regular assessment [Re. CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. [ 2015 (5) TMI 656 - BOMBAY HIGH COURT] Appeal by the Revenue is dismissed - ITA NO. 98/MUM/2022, ITA NO. 102/MUM/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the said interest to tax on accrual basis, hence, the Assessing Officer made addition of the same. The CIT(A) has deleted the aforesaid additions, hence, the present appeal by the Revenue. 6. On the contrary, Shri K. Gopal appearing on behalf of the assessee vehemently supported the findings of CIT(A). The ld. Counsel for the assessee submits that CIT(A) in the impugned order has recorded that, the facts in the case of assessee are identical to the facts involved in the case of M/s. Indiabulls Financial Services Ltd. for Assessment Year 2011-12. The CIT(A) following the decision in the case of M/s. Indiabulls Financial Services Ltd. deleted the addition in respect of unexplained cash u/s. 69 of the Act. In the case of M/s. Indiabulls Financial Services Ltd., the Revenue carried the issue before the Tribunal in ITA No. 1433/Mum/2022 for Assessment Year 2011-12. The Tribunal vide order dated 31/10/2022 upheld the findings of CIT(A). Thus, ground No.1 to 3 of the present appeal by Revenue is covered against the Department by the aforesaid order of Tribunal. 6.1 The ld.Counsel for the assessee further submitted that a perusal of satisfaction note would show that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deleting addition on account of accrued interest on FDR. It is an undisputed fact that on the date of search no assessment was pending for the impugned assessment year. A bare perusal of the assessment order shows that there is no reference to any incriminating material. The Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd., 374 ITR 645(Bom)] has held that where there is no pending assessment and no incriminating material is found during search, no addition can be made in assessment proceedings u/s. 153C r.w.s. 143(3) of the Act. The Department filed SLP against the said judgment. The Hon ble Apex Court after admitting SLP, dismissed the Civil appeal of the Department [Re. CIT vs. Containing Corporation of India Ltd., 93 taxamann.com 31 (SC)]. Similar view was expressed by Hon'ble Bombay High Court in the case of CIT vs. Murli Agro Products Ltd., 49 taxmann.com 172 and CIT vs. Deepak Kumar Agrawal, 398 ITR 586. The Hon ble Delhi High Court in the case of CIT vs. Kabul Chawla, 380 ITR 573 has reiterated the same view as that of Hon'ble Bombay High Court. We have also considered the decisions cited by ld. DR. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is for bonafide reasons. The ld.Counsel for the assessee has also not objected to the condonation of delay in filing of appeal. Taking into consideration entirety of facts, the delay of 130 days in filing of appeal is condoned and the appeal is admitted for adjudication on merits. 16. The Revenue has raised six grounds of appeal. In ground No.1 to 3 of appeal, the Revenue has assailed the findings of CIT(A) in deleting the addition on account of unexplained cash u/s. 69A of the Act. In ground No. 4 to 6 of the appeal, the Revenue has assailed the findings of CIT(A) in deleting the addition made by Assessing Officer invoking the provisions of section 79 of the Act. 17. Both sides are unanimous in stating that in so far as ground No.1 to 3 of appeal are concerned, the facts are identical(except amounts) to Assessment Year 2011-12. We find that the grounds raised by the Revenue are verbatim to the grounds raised in appeal for Assessment Year 2011-12. Thus, the findings given while deciding aforesaid grounds in Assessment Year 2011-12 would mutatis mutandis apply to the of grounds of appeal for the impugned assessment year. For parity of reasons, the ground No. 1 to 3 are di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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