M/s. Veena Industries Ltd, Pune V. Deputy Commissioner of Income-tax, Central Circle - 2(1), Pune

CO 18/PUN/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4940 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-03-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-10-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Document seized; Earning of tax free income; Documents seized; Rule 8D; Set aside
• Section: 132; 143(3); 153A; 14A; 139(5); 143(1); 139(1); 13

Judgement Text

ITAT-Pune Page 1 of 14 आयकरअपीलीयɊायािधकरण, पुणेɊायपीठ,“बी” बŐचपुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, PUNE BENCH “B”, PUNE BEFORE SHRI SS VISHWANETHRA RAVI, JUDICIAL MEMBER AND SHRI JAMLAPPA D. BATTULL, ACCOUNTANT MEMBER आयकरअपीलसं. / ITA(SS) No. 104/PUN/2017 िनधाŊरणवषŊ / Assessment Year : 2008-2009 Dy Commissioner of Income Tax, Central Circle 2(1), Pune . . . . . . . अपीलाथŎ / Appellant बनाम / V/s. M/s Veena Industries Ltd S-145, MIDC, Bhosari, Pune-411026 (Mh-India) . . . . . . . ŮȑथŎ / Respondent & आयकरअपीलसं. / CO No 18/PUN/2021 M/s Veena Industries Ltd S-145, MIDC, Bhosari, Pune-411026 (Mh-India) . . . . . . . अपीलाथŎ / Appellant बनाम / V/s. Dy Commissioner of Income Tax, Central Circle 2(1), Pune . . . . . . . अपीलाथŎ / Appellant Ȫारा/ Appearances Assessee by : Shri Neelesh Khandelwal Revenue by : ShriSardarsingh Meena सुनवाईकीतारीख / Date of conclusive Hearing :03/03/2022 घोषणाकीतारीख / Date of Pronouncement : 23/03/2022 आदेश/ ORDER PER JAMLAPPA D.BATTULL, AM; The present appealof the Revenue and Cross Objection [for short “CO”] of the assessee areassailed against the consolidatedorderof Commissioner of Income Tax-(Appeals)-12, Pune[for short “CIT(A)”]dt 25/10/2017 passed u/s250of the Income-tax Act, 1961 [for short “the Act”], which in turn unfolded out of theassessment order dt 09/03/2016[for short “Ao”] for the assessment year [for short “AY”] 2008-2009passed by the Assessing Officer [for short “AO”] u/s143(3) r.w.s 153Aof the Act. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 2 of 14 2. The shortest legal controversy under this litigation is that, the assessee defied153A jurisdiction in the absence of incriminating documents as condicio sine qua non,in a case where the concluded assessment on the direction of Income Tax Appellate Tribunal [for short “ITAT/Tribunal”] was remanded back for statistical purposes. 3. Before advancing the matter on facts for adjudication, to break the ice, it is essential to reproduce grounds assailedby the appellant revenue as well the respondent assessee through cross objection, are; A. ITA(SS) No 104/PUN/2017; “1) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs.8,06,02,200/- made by the Assessing officer on account of disallowance of interest despite the fact that the assessee could not establish the utilization of its own funds available along with necessary evidence and the entire submission of the assessee was based on presumption.” “2) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs.1,24,343/- made by the Assessing Officer on account of u/s 14A of the Act, Despite the fact that CBDT New Delhi’s vide Circular dated 11.02.2014 has clarified that Rule 8D r.w.s. 14A of the IT Act, 1961 provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income.” “3) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that during assessment u/s 153A r.w.s. 143(3), it was not open to the AO to make additions without existence of any incriminating documents found and seized during search u/s 132(1).” “4) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that the scope of section 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 Assessing Officer.” “5) The appellant craves leave to add, amend or alter any of the ground/ grounds of appeal which may be necessary.” (Emphasis supplied) B. CO No 18/PUN/2017; “1. On the facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that the first Appellate Authority has erred in holding that respondent is barred from raising any fresh claim which was not made in the concluded proceedings. The deduction of Rs.42,21,691/- on account of insurance charges should be allowed. The respondent be granted just and proper relief as per provisions of law and facts prevailing in the case.” ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 3 of 14 “2.On the facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that the first Appellate Authority has erred in holding that respondent is barred from raising any fresh claim which was not made in the concluded proceedings. The deduction for the claim of preliminary expenses during A.Y. 2012-13 made by the respondent of Rs.12,61,163/- be allowed. The respondent be granted just and proper relief as per provisions of law and facts prevailing in the case.” “3. The respondent prays to be allowed to add, amend, modify, rectify, delete, raise any grounds of appeal at the time of hearing.” (Emphasis supplied) 4. Before setting the ball rolling, let us now sight the facts of the case succinctlyas; 4.1 The assessee is a Limited Company incorporated under the erstwhile Companies Act, 1956 is engaged in the business of manufacturing / assembling of Canopy, Electrical Gensetsetc., and for AY 2008-2009 filed its e-return of income [for short “ITR/ROI”]u/s 139(1) on 30/09/2008, which was revised u/s 139(5) twice on 06/01/2009 with returned income of ₹7,65,76,320/-.Initially the return was summarily processed u/s 143(1) and then was subjected to scrutiny under CASS and the assessment was culminated by an order dt 31/12/2010 assessing the total income of ₹16,20,84,677/-by dislodging 80IB(4) claim of ₹8,55,08,357/-.The first appellate authority echoed the denial of 80IB(4) claim and on its being challenged before this forum, the Tribunal adjudicating the eligibility in favour of the assessee, by an order dt 27/02/2015 remanded the file back to the Ld AO for statistical purpose. In the intervening time, asearch action u/s 132 of the Act dt 17/12/2013 was carried out and pursuant thereto income was reassessed at ₹24,28,11,020/- u/s 143(3) r.w.s. 153A. 4.2 Aggrieved by the aforesaid order of assessment, the assessee company filed an appeal before first appellate authority, whereupon considering the submission, the Ld CIT(A) accorded a partial relief on the ground of jurisdiction to assessee u/s 153A by deleting the impugned additions of ₹1,24,343/- made u/s 14A and ₹8,06,02,000/- toward disallowance of interest expense, however concurred with the views of Ld AO inrejecting the claim of 80IB(4) for ₹8,55,08,357/-on account of ineligibility incurred due to failure to commence the manufacturing activity by the prescribed due date. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 4 of 14 4.3 Unhappywith the relief given to assessee, the Revenue through this appealchallenged the contra legem action of Ld CIT(A) deleting aforesaid two additionson the grounds assailed herein before at Para 3and the assessee preferred a delayed cross objection with an alternate claim for expense thereagainst. 4.4 It is imperative to note that, on a separate appealagainst the rejection of 80IB(4) claim for all the eligible assessment years, this Tribunal vide ITA(SS) No 83/PUN/2017 by a consolidated order dt 04/09/2018 has adjudicated the matter in favour of assessee company, with which the present adjudication is remotely unconnected. 5. After hearing to the rival contentions of both the parties; perused material placed on records and duly considered the facts of the case in the light of settled legal position and the case laws relied upon by the appellant revenue as well the assessee company. 6. From the records and the rival contention vis-à-vis submission of both the parties it transpiredthat; 6.1 The original assessment u/s 143(3) r.w.s. 263 was framed assessing the total income at ₹16,20,84,677/- with a solitary addition of ₹8,55,08,357/-by dislodging the claim made u/s 80IB(4) of the Acton twofold counts that, firstlythe activity undertaken by the assessee company at its Silvassa unit is neither manufacture nor production of any goods or articles as envisaged in section 80IB(4) of the Act and secondlythe assessee has not commenced its manufacturing activity at Silvassa unit on or before prescribed time limit of 31/03/2004. 6.2 Upon confirming the disallowance by the Ld CIT(A) in an appeal before him, the matter travelled before this Tribunalon an earlier occasion with twofold grounds.As regards to first eligibility objection of Ld AO, the Tribunal considering the facts and circumstances and settled law, has by its order dt 27/02/2015 categorically held that the activity of the assessee company squarely falls within the realm of 80IB(4) entitlements,the relevant Para10 of congruity from ITA No 1369/PN/2012 is reproduced hereunder; ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 5 of 14 “In our considered opinion, the aforesaid issue is directly covered by the judgement of the Hon’ble Delhi High Court in the case of Jackson Engineers Ltd. (supra). As per the Hon’ble Delhi High Court, the activity involving assembling of various components and achieving a final product of a generator amounts to manufacture or production of an article or thing within the meaning of section 80-IB of the Act. Moreover, the Hon’ble Bombay High Court in the case of Tata Locomotive And Engineering Company Limited (supra) has also held that assembling of various components which results into a different product which is distinct then the individual components, such an activity amounts to manufacture or production. As a consequence, we therefore do not agree with the first objection of the Assessing Officer to deny assessee’s claim for deduction u/s 80-IB(4) of the Act. Thus, on this aspect assessee succeeds.” 6.3 As regards to second substantive objection raised by Ld AO that, the Silvassa unit of the assessee did not begin to manufacture or produce the Generators before the outer time limit prescribed for beginning manufacture or production so as to entitle the assessee for the benefits of section 80IB(4) of the Act is concern, the Tribunal by its order dt 27/02/2015 remitted the matter back to the file of AO for a limited purpose with a direction to make anorder afresh after allowing the necessary opportunity to the assessee of beingheard. 6.4 Interestingly, during the pendency of aforesaid litigation before the appellate forums, a search action u/s 132 of the Act dt 17/12/2013 was carried out on oneAgrawal Group wherein the case of the assessee company was also covered and as a consequence thereof, the proceedings u/s 153A were triggered and initiated against the assessee company for the block of AYs 2008-2009 to 2013-2014. 6.5 Thus, getting the second wind, the present impugned order of assessment was framedu/s 143(3) r.w.s. 153A to be r.w.s. 254 of the Act, with following three disallowances / additions; a. Disallowance of 80IB(4) claim for sum of ₹8,55,08,357/-. b. Disallowance u/s 14A with sum of ₹1,24,343/- towards expenditure incurred in relation to earning of exempt income, and c. Disallowance of interest expenditure of ₹8,06,02,000/- as ineligible revenue expenditure. 6.6 Confirming the rejection of 80IB(4) claim on the count of disentitlement as the respondent company failed begin to manufacture or produce the Generators before ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 6 of 14 the outer time limit prescribed therein, the Ld CIT(A) overturnedthe action of Ld AO in disturbing the concluded assessmenton the legal ground in the absence of any incriminating material found during the course of search actionvis-a-vison merits of the case. 6.7 Thus, the Revenue by this appeal has challenged the action of Ld CIT(A) both on legal as well on the grounds of merit and the assessee company has filed itscross objection outworthing additional claim thereagainst. 7. Effectively first two grounds of revenue are assailed on merits, whereas the remaining two are legal grounds and if the present case succeeds on legal grounds, the first two grounds of merits would be academic, hence it is apt to adjudicate the legal grounds first. 8. The vexed questions in the instant case are; (a) whether an assessment proceeding remanded back to the file of AO revives from the status of concluded assessment and thereby unlocks the original jurisdiction de-nova? (b) And whether or not any additions can be triggered into such unlocked assessment based on or in the absence of incriminating material unfolded out of search action? 9. Having said so, now in the instant adjudication; 9.1 It is abundantly apparent fact from the records that, the assessment for the year under consideration i.e. AY 2008-2009 was duly concluded u/s 143(3) r.w.s. 263 of the Act on 31/12/2010and was unabated. 9.2 It is also an undoubted fact that,the first order of assessment passed u/s 143(3) r.w.s. 263was by an order of this Tribunal dt 27/02/2015 reminded back to the file of Ld AO for a statistical purpose of verifying whether or not by the prescribed outer time limit, the assessee company has commenced its activity of manufacturing / production so has to entitle for the claim u/s 80IB(4) of the Act. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 7 of 14 9.3 It is also an admitted fact that, prior to aforesaid remittance, a search action dt 17/12/2013 was carried out on one Agrawal Group covering the assessee company on even date and the consequential proceedings u/s 153A in assessee’s case were initiatedfor a block of years covering the assessment year under consideration, whichresulted into present impugned assessment u/s 143(3) r.w.s. 153A to be r.w.s. 254 of the Act. 9.4 In answering part (a) of the vexed question framed in Para 8, we find, it is a settled law that, the scope of the proceedings after remand will necessarily have to be determined with reference to the terms of the order whereby the appellate authority remits the case back to the file of AO and the AO has same powers in making fresh assessment as he had originally when making the assessment order u/s 143 of the Act. However, this power can be used only when the appellate authority set aside the assessment and direct the AO to make a fresh assessment without imposing any restrictions or limitations as to how the fresh proceedings are to be conducted, which means that, as long as no restrictions have been placed by the appellate authority on the scope of the proceedings after remand by directing a fresh assessment to be made the AO is competent to redo the assessment in accordance with law after taking into account all matters and aspects that would be relevant in making the original assessment.Per contra this also means that, it is open to the appellate authority to limit the scope of the inquiry by the AO to any specific aspect or issue. It is well settled law that, an appellate authority while setting aside the case can give directions and lay down limits for the inquiry to be made by the assessing authority andwhen such a direction is made and limits are laid down, the power and jurisdiction of the assessing authority to deal with the case, after remand, shall depend on the specifications of the remand order, which means that the assessing officer has no jurisdiction to enter into any question which falls outside the limits laid down by such directions. 9.5 In defining the scope of assessment in a remand cases, the Hon’ble High Court of Madhya Pradesh had occasion to adjudicate the issue in case of “CIT Vs Hope Textiles ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 8 of 14 Ltd.”reported at 225 ITR 993 (MP),wherein the Hon’ble Lordships have held that,“the appellate authority had in its remand order made a clear direction to the Assessing Officer to reconsider the case only in regard to the matter relating to specific disallowance, whereas the Assessing Officer travelled beyond the specifications of the remand order in making the additions and the appellate authorities were right in deleting the additions. The order of the Tribunal was based on a proper appreciation of the settled legal position and did not, therefore, give rise to any referable question of law”. 9.6 We also find a similar view has been taken by the Hon’ble High Court in the case of “CIT Vs Jawaharlal Nagpal”reported at 171 ITR 136 (MP), in which the Hon’ble Lordships have categorically held that “in the fresh assessment proceedings after the original assessment had been set aside, the ITO had no jurisdiction to tax new sources of income.” 9.7 In short, the scope of the fresh assessment following the appellate order depends on the subject matter of the appeal and the appellate order read as a whole in its proper context. If a subordinate authority refuses to carry out directions or travels beyond the directions given to it by a superior Tribunal in the exercise of its powers, the result will be chaos in the administration of justice and no doubt in order to attract this principle, it is necessary that the order of the superior Appellate authority should be clear, certain and definite in its terms and without any ambiguity, this ratio decidendi can be witnessed in the celebrated judgement laid down by the Hon’ble Apex Court in the case of “Bhopal Sugar Industries Vs ITO”reported at 40 ITR 618. 9.8 In the light of aforestated corpus juris civils, we have considered the order of this Tribunal dt 27/02/2015 and on perusal thereof it clearly showed that, this Tribunal on an earlier occasion, set aside the order of Ld CIT(A) and restored the matter back to the file of the assessing office to make an order afresh on a limited issue of finding out whether or not the assessee company commenced its activity of manufacturing / ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 9 of 14 production within the prescribed outer time limit to entitle itself for 80IB(4) claim, after allowing the necessary opportunity to the assessee of being heard and keeping in mind the aforesaid direction. Thus the directions of this Tribunal for assessment clearly shows that, the assessment were restricted to the disallowance of claim of 80IB(4) on account of failure to satisfy one of the qualifying condition.Per contra, the impugned assessment u/s 143(3) r.w.s. 153Ato be r.w.s. 254 is framed with an additional two items of disallowance, one u/s 14A for sum of ₹1,24,343/- on account of expenditure incurred in relation to earning of exempt income andsecond disallowance of interest expenditure of ₹8,06,02,000/- as ineligible revenue expenditure.This clearly demonstrates that,the Ld AO has travelled beyond the directions given by the Tribunal and failed to carry out the legal duty imposedupon him which has resulted into the destruction of a basic principle of natural justice and such action of the AO is unsustainable in law, consequently this answers the question negatively and in favour of the assessee company. 10. In the light of above; the only question remains whether or not any additions can be carried out in an un-abated assessment pursuant to search action and to answer the question, it is important to reproduce the text of the relevant provision of section 153A of the Act in force at the relevant time as under; 153A. Assessment in case of search or requisition.— (1) Notwithstanding anything contained in ssection139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated u/s 132 or books of account, other documents or any assets are requisitioned u/s 132A after 31st day of May, 2003, the Assessing Officer shall – (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years 3 [and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished u/s 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made 4 [and for the relevant assessment year or years]: ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 10 of 14 Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years 4 [and for the relevant assessment year or years]: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years 1 [and for the relevant assessment year or years] 2 [referred to in this sub-section] pending on the date of initiation of the search u/s 132 or making of requisition u/s 132A, as the case may be, shall abate: [Provided also that the Central Government may by rulesmade by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made 1 [and for the relevant assessment year or years]: [(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation.—For the removal of doubts, it is hereby declared that,— (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year. 11. On a conspectus of Section 153A of the Act, read with the proviso thereto andinthelight of the settled law, the legal positionthat emergesisas under; 11.1 Although Section 153A does not lay that additions should be strictly madeonthebasisofevidence found in the course of the search, or other post-search material or informationavailable with the AO which can be related to the evidence found, it does not also meanthattheassessment “can be arbitrary or made without any relevance or nexus with the seized material, obviously an assessment has to be made under this Section only on the basis of seized material.” ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 11 of 14 11.2 In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section153A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. 11.3 Insofar as the pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one, and only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. 11.4 On the other hand, completed assessments (unabated) can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment.” 11.5 Coming to the facts of the instant case, during the course of proceedings before this Tribunal, the Ld DR, candidly let the cat out of the bag by submitting on records, the clarification / certification obtained from the department to the effect that, no incriminating documents were found during the course of search in the case of assessee company and hence it is vital to quote the exact text from the letter dt 21/02/2022 held on records as; “(a) The assessee company was subjected to action u/s 132 of the I T Act on 17/12/2013. Consequent to the search proceedings, re-assessment proceedings u/s 153A of the I T Act were commenced vide notice u/s 153A of the IT Act issued on 12/05/2014 for 6-year block of AYs 2013-14 to 2008-09. (b) On perusal of the appraisal report and more particularly the discussion contained therein on the seized material, it is seen that none of the seized documents were found to be incriminating with respect to the issues involved in AY 2008-09. (c) Further, on perusal of the assessment order, no incriminating material is found to be discussed in the said order. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 12 of 14 (d) In this background, the seized material was perused and there is no change in the position that none of the seized documents are found to be incriminating for the consideration in AY 2008-09.” 11.6 Adverting the aforesaid letter of clarification, the Ld AR contented that, “the completed assessments cannot be interfered with by the AO while making the assessment under Section 153A in the absence of incriminating materialand in order to drive home theaforesaid contention the Ld AR drawn our attention to plethora of case laws, which has been duly considered 12. The vanilla scenario of the instant case squarely attracts the ratio laid by Hon’ble Jurisdictional High Court of Bombay in the case of “CIT Vs Continental Warehousing (Nava Sheva) Corporation Ltd” reported at 374 ITR 645 (Bom), wherein the Hon’ble Lordships have categorically upheld the views of Special bench of Tribunal constituted in case of “All Cargo Global Logistics Ltd” reported at 137 ITD 287,whereby the argument of the Revenue that, the AO was free to disturb income de hors the incriminating material while making assessment under Section 153A of the Act was specifically rejected as non-lex-lata i.e. on the ground that it was "not borne out from the scheme of the said provision" which was in the context of search and / or requisition. 13. We also find that, a similar view has been fostered by the Hon’ble Delhi High Court in “CIT vs Kabul Chawla”reported at 388 ITR 573,and when ina analogous matter of additions in absentia of incriminating material was assailed by the revenue through special leave petition [for short “SLP”] before the Hon’ble Supreme Court of India in “PCIT Vs Meeta Gutgutia”, the Hon’ble Lordships have dismissed the said SLP in limine. 14. We see eye to eye to the ratio laid down by the Hon’ble High Courts that, the completed assessments could be interfered with by AO while making the assessment under Section 153A only on the basis of concrete incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 13 of 14 15. Keeping in view the aforesaid fact and records, we are of the firm opinion that, the legal ground raised in present appeals have been settled by plethora of judicial precedents discussed herein before, thus the assessment of the respondent company had attained finality prior to the date of search and no incriminating documents or materials had been found and seized at the time of search from the search party,therefore, no addition can be made u/s 153A of the Act, as the cases of respondent assesseeis of non- abated assessments. 16. Thusconsidering the entire conspectus of case, we find that the assessment proceeding suffers from infirmity so far as the additions in the absence of incriminating material are concerned;consequentlywedo not hesitate in echoing the views of Ld CIT(A)as right as rain, ergowe direct for deletion of impugned additions made u/s 14A and disallowance of interest expenditure made in the assessment framed u/s 143(3) r.w.s. 153A of the Act. 17. Thus, the legal ground number 3 and 4are adjudicated in favour of the assessee company and against the revenue,consequently first two grounds of merits raised by the revenue are dismissed as academic and infructuous and the cross objection shall die accordingly. 18. Resultantly, the appeal of the revenue and cross objection of the assesseeare dismissed,with no order as to cost. Order pronounced in the open Court on this Wednesday, 23 rd day of March, 2022. -Sd- -Sd- SS VISHWANETHRA RAVI JAMLAPPA D BATTULL JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे/ PUNE ; िदनांक / Dated :23 rd day of March, 2022. ITA(SS) No. 104/PUN/2017 & CO 18/PUN/2021 AY 2008-2009 ITAT-Pune Page 14 of 14 आदेशकीŮितिलिपअŤेिषत / Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant. 2. ŮȑथŎ / The Respondent. 3. The Pr. CIT, Pune (Mh-India) 4. The CIT(A), Pune (Mh-India) 5. िवभागीय Ůितिनिध,आयकरअपीलीय Ɋायािधकरण,पुणे बŐच, पुणे / DR, ITAT, Pune Bench, Pune. 6. गाडŊफ़ाइल / Guard File. आदेशानुसार / BY ORDER, िनजीसिचव / Private Secretary //True Copy// आयकरअपीलीयɊायािधकरण, पुणे / ITAT, Pune. Sr Event Occurrence Date Attributes 1 Draft dictated on 07/03/2022 - 2 Draft placed before author 15/03/2022 - 3 Draft proposed and placed before the second Member 23/03/2022 Ld JM 4 Draft discussed/approved by second Member 23/03/2022 Ld JM 5 Approved draft comes to the Sr. PS/PS 23/03/2022 PS 6 Kept for pronouncement on 23/03/2022 PS 7 Date of uploading of order PS 8 File sent to Bench Clerk PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the Asstt Registrar 11 Date of dispatch of order