TMI Blog2021 (8) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessee : Shri Vijay Mehta For the Department : Shri Rahul Raman ORDER PER SHAMIM YAHYA (AM) :- This appeal by the Revenue is directed against the order of learned CIT(A)-47 dated 20.09.2019 and pertains to Assessment Year 2012-13. 2. The grounds of appeal read as under : 1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was right in allowing the appeal filed by the assessee by relying on the decision of the Hon'ble Bombay High Court ignoring the fact that issue same as of this appeal is pending before the Hon'ble Supreme Court of India in various other appeals. 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was correct in narrowing down the scope of assessment u/s, 153A in respect of completed assessments by holding that only undisclosed income and undisclosed assets detected during the search could be brought to tax. 3. Whether on the facts and circumstances of the case and in law, the Ld.CIT (A) was correct 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 inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- on 31sr March, 2013. Hence, the last date for issuance of notice u/s. 143(2) of the Act was 30th September, 2013. However, no notice u/s 143(2) of the Act had been issued to the Appellant, within the prescribed mandatory time limit of six months from the end of the Financial Year in which the return had been filed. 11.1 It is pertinent to note that the search operation in the case of the Appellant Company was conducted on 28th January, 2015. Hence, as on the date of search, no assessment proceedings were pending for the A.Y. 2012-13. Further, even the time limit for issuing notice u/s. 143(2) of the Act had expired, as on the date of search. Thus, this is a case of already concluded and completed assessment and as such, the Assessing Officer is empowered to make addition in the proceedings u/s 153A of the Act, only on the basis of incriminating material found during the course of search operation carried out on the Appellant. No Incriminating Material found during Search Operation on the Appellant: 12.0 During the course of appellate proceedings, the Appellant has filed the copies of the Panchanama dated 28.01.2015 and 26.03.2015 drawn in the name of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of search operation. 13.14 In the case referred, supra, the Hon'ble Bombay High Court has upheld the following observations of Hon'ble ITAT:- i. On a plain reading of Section 153A of the Income-tax Act, it becomes clear that on initiation of the proceedings under Section 153A, it is only the assessment / reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalized for those assessment years covered under Section 153A of the Act. ii. By a circular No. 8 of 2003 dated 18-9-2003 (See 263 ITR (St) 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalized assessment/ reassessment shall not abate. It is only because, the finalized assessments/reassessments do not abate, the appeal revision or rectification pending against finalised assessment/reassessments would not abate. iii. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal revision or rectification proceedings against finalized assessment/reassessment shall not abate. It is only because, the finalized assessments/reassessments do not abate, the appeal, revision or rectification pending against finalized assessments/reassessments would not abate. Therefore, the argument of the revenue, that on initiation of proceedings under Section 153A, the assessments/reassessments finalized for the assessment years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153A(1) what stands revived is the pending assessment/reassessment proceedings which stood abated as per section 153A(1). 11. In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for the assessment year 1998-99 was finalized on 29-12-2000 and search was conducted thereafter on 3-12-2003. Therefore, in the facts of the present case, initiation of proceedings under Section 153A would not affect the assessment finalized on 29-12-2000. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the course of search. 11.1 A.Y. 2012-13 relates to the jurisdiction of the Assessing Officer in making addition in an assessment framed u/s 153A of the Act in an unabated case, where no incriminating material has been found, during the course of search operation. This issue is covered in favour of the Appellant by the decision of the Hon'ble ITAT, Mumbai in the case of M/s. Geetanjali Space Pvt. Ltd. reproduced above, which is on similar facts and circumstances. In view of the order of the Hon'ble ITAT and also the binding precedents of the various Hon'ble Courts referred supra, it is held that no addition can be made u/s. 153A of the Act in an unabated case, where no incriminating material has been found or seized during the course of search operation. Accordingly, Ground of Appeal Nos. 1 to 3 for A.Y. 2012-13 raised by the Appellant are allowed. 8. Ld.CIT(A) further also held that addition is to be deleted on merits also by observing as under:- 11.3 The Ground Nos.5 to 13 of AY 2012-13 are in relation to addition made by the Assessing Officer on account of unsecured loans u/s.68 of the Act. This issue is covered in favour of the Appellant by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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