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2016 (9) TMI 1561 - AT - Income TaxAssessment u/s 153A - new claim in the return of income filed u/s 153A - HELD THAT:- In the present case before us though the second proviso to sub-section (1) of section 153A would not apply in the first three years of this case, yet, as far as the second three year period is concerned (which are pending before us), the assessments were pending. The proceedings in relation thereto abate. Now the entire assessment in relation to the second phase of three years can be made. The pending assessment in that case may be undertaken u/s 153A of the Act. The abatement of pending assessment is for the purpose of avoiding two assessments for the same year i.e. one being regular assessment and the other being search assessment u/s 153A of the Act. In other words, these two assessments merge into one assessment. It means that completed assessments stand on different footing from the pending assessments. Hence, in so far as pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s 153A of the Act merge into one and in that case only one assessment for the remaining set of years, where assessment is pending, is to be made separately on the basis of search materials and the regular material existing or brought on record before the AO/Revenue. Assessee can make any new claim in the return of income filed u/s 153A of the Act or even during the course of assessment proceedings undertaken u/s 153A of the Act. In our view, and in view of the second proviso to Section 153A (1) of the Act, once assessment get abated it is opened both way i.e. for the Revenue to make any additions apart from seized material even regular items declared in the return can be subject matter if there is doubt about the genuineness of those items and similarly the assessee also can lodge new claim, deduction or exemption or relief which remained to be claimed in regular return of income, because assessment was never made in the case of the assessee in such situation. Hence, we allow this issue of assessee‟s appeal. Disallowance of capital receipt on account of gain on prepayment of VAT / Sales tax - remission or cessation of trading liability u/s. 41(1) - HELD THAT:- As decided in CIT Vs Suzler India Ltd [2014 (12) TMI 267 - BOMBAY HIGH COURT] has decided the issue in favour of the assessee by observing that where the assessee has made pre-mature payment of deferred sales tax on NPV basis of certain amount against the total liability and credited balance amount to its capital reserve account, the credited amount was capital receipt and it cannot be held to be a cessation or remission of a trading liability u/s 41(1) of the Act. Since, none of the authorities below have adjudicated this issue and facts are not available on records, we restore this issue back to the file of the AO - Appeals of the assessee are partly allowed for statistical purposes
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