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2019 (11) TMI 997 - AT - Income TaxAssessment u/s 153A - Validity of search u/s 132 - HELD THAT:- In pursuance of warrant of authorization issued by DIT(Inv.), Patna and Addl. DIT(Inv.), Ranchi, a search and seizure operation was carried out on 03.07.2014 at the business premises of the appellant-assessee situated at Joda, Banaikela, Barbil, Orissa. Accordingly, the CIT(A) rejected the plea of the assessee that no search was carried out in the case of the assessee. In our opinion, this issue must have been raised by the assessee before the constitutional bench. In the present case, we also noted that this issue has not been raised before the AO. However, when raised before the CIT(A), the CIT(A) on receiving remand report from the AO confirmed that the search was duly conducted in the premises of the assessee. So far as our considered opinion, the Tribunal has no power to hear the validity of search. In the totality of facts and circumstances of the case, we decline to accept the ground No.1 taken by the assessee regarding validity of search proceedings. Therefore, this ground of appeal is dismissed. Assessee has not received notice u/s.143(2) at his registered office or place of search - HELD THAT:- It is clear from the above observations of the CIT(A) that there was no mandatory to issue notice u/s.143(2) of the Act and served to the assessee for completion of assessment u/s.153A of the Act. The provisions of Section 153A of the Act is a special provision to unearth the escaped income by the assessee. Ld.CIT(A) has decided this issue after relying on the various judgments as quoted by him, which are applicable in the present case also. The ld AR was also unable to controvert the findings recorded by the CIT(A) in this regard. He just submitted that issuance of notice u/s.143(2) of the Act is mandatory for assuming jurisdiction for completion of assessment. It is also settled position of law that there is no mandatory requirement of issuance of notice under section 143(2) of the Act in respect of assessment proceedings u/s.153A of the Act as decided in TARSEM SINGLA VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [2016 (7) TMI 703 - PUNJAB AND HARYANA HIGH COURT] .Thus issuance of notice under section 143(2) of the Act in respect of assessment proceedings u/s.153A Assessment u/s 153A - Assessee has contested that during the course of search no any incriminating material/document whatsoever was found relating to the assessee - HELD THAT:- In the instant case, on perusal of the assessment order, it was noticed that the AO has not disallowed any specific amount of expenses on account of any incriminating materials found at the time of search. It is pertinent to note that the assessee had filed the return of income on the basis of audited trading profit and loss account and balance sheet. AO has made addition only on the basis of tax evasion petition filed by somebody else. Copy of the tax evasion petition is placed on record at page Nos.102 to 107. It is pertinent to mention here that completed assessments can be interfered with by the Assessing Officer while making the assessment under section 153A of the Act 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. In the case in hand, the AO has not referred to any incriminating material found during the course of search while framing the assessment. Section 153 A of the Act, 1961 provides for the scheme of assessment of income in case of a searched person. Assessing Officer, while framing assessment under section 153A of the Act cannot make the addition/disallowance dehors any ‘incriminating’ material. No reasonable opportunity of hearing provided to assessee - Assessment years 2013-2014 to 2015-2016 - HELD THAT:- The search was conducted on 3rd July, 2014 and for selection of scrutiny u/s.143(2) of the Act was not expired on the date of search, therefore, this year’s assessment would be completed as a regular assessment u/s.143(3) of the Act. The ld. AR of the assessee was also unable to controvert that on the date of search, the assessment for the impugned year has been completed. Our this view is supported by plethora of judicial decisions. Accordingly, on perusal of the assessment order and considering the request of the ld. AR of the assessee, to which ld. DR has not objected, we are of the considered opinion that the assessee in this case was deprived of reasonable opportunity of hearing. Therefore, we remit the matter back to the file of AO for making de novo assessment after depth examination as per provisions of Income Tax Act, 1961 after providing reasonable opportunity of being heard to the assessee. The assessee is also directed to cooperate with the department for early disposal of the case and also directed to not to seek any adjournments because the assessee has been given many opportunities of being heard by the AO during the original assessment proceeding. Thus, the grounds of appeal of the assessee for A.Y.2013-2014 are allowed for statistical purposes.
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