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2019 (4) TMI 1971 - AT - Income TaxAssessment u/s 153A - whether any assessment order u/s 143 (3) was passed or not before the date of search for deciding this aspect of the matter that the assessment is pending or not on the date of search? - HELD THAT:- In the present case, this is not a case where notice u/s 143 (2) was issued and time is available for passing of order u/s 143 (3). In fact, in the present case, no notice u/s 143 (2) was issued before the date of search for any of these four years. Now we examine as to whether, time was available to the AO to issue notice u/s 143 (2) on the date of search. As per proviso to section 143 (2), no notice shall be issued after expiry of six months from the end of the financial year in which the return was filed. Last return was filed for A. Y. 2011- 12 on 25.09.2011 and therefore, notice u/s 143 (2) for this year could have been issued up to 30.09.2012 and the search has taken place on 11.10.2012. So time was not available to the AO on the date of search to issue notice u/s 143 (2) for any of these four years. Hence, no assessment was pending on 11.10.2012 and hence, no assessment gets abated. As per the judgment of Hon’ble Delhi High Court rendered in the case of Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT], if no incriminating material is found in search and assessment is not abated, such a completed assessment cannot be reopened u/s 153A in the absence of incriminating material having been found in search. SLP filed by the revenue against this judgment of Hon’ble Delhi High Court is dismissed by Hon’ble apex court. But in order to apply the ratio of this judgment, this factual aspect has to be examined as to whether any incriminating material for any of these four assessment years was found or not in search. CIT (A) has not given any finding on this factual aspect because he proceeded on this basis that this is not material as per the judgment of Hon’ble Karnataka High Court rendered in the case of Canara Housing Development Co. [2014 (8) TMI 642 - KARNATAKA HIGH COURT] but we have seen that this judgment is not relevant to decide this aspect as to whether section 153A can be invoked for a year prior to the year of search if no incriminating material is found in search for that year and the assessment is not pending on the date of search. Hence, we feel it proper to restore the matter back to CIT (A) for a fresh decision on this aspect about validity of invocation of section 153A in the light of this judgment of Hon’ble Delhi high Court rendered in the case of Meeta Gutgutia (Supra) against which, SLP is dismissed by Hon’ble apex court after finding out the facts as to whether any incriminating material was found in search or not. If the assessee succeeds on this aspect then nothing remains to be decided on merit but if the assessee fails on this technical aspect then the issues on merit should be decided by CIT (A) afresh because in our opinion, the issue on merit should be decided after deciding the technical issue. Hence, in view of this decision, we do not decide any issue on merit arising out of the appeal of the assessee or revenue. Appeals filed by the assessee and all three appeals filed by the revenue are allowed for statistical purposes.
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