TMI Blog2013 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment in the course of reassessment u/s 153A unless there is fresh material found during the course of search relevant to the assessment years under consideration – There was no reference to any specific seized document which has a direct relevance for the year under consideration which means that there was no incriminating material against the appellant for this assessment year that can prompt the AO to re-agitate the issues which was otherwise settled in the regular assessment completed earlier - Decided against Revenue. - ITA Nos.1828, 1829, 1830 & 1831/Hyd/2012 - - - Dated:- 23-10-2013 - B Ramakotaiah And Saktijit Dey, JJ. For the Appellant : Shri Harilal Nayak For the Respondents : Shri Y R Rao AV Raghuram ORDER:- PER : Bench Revenue filed appeals in the name of AMR Constructions Ltd. Assessee filed an affidavit regarding change of name of company to AMR India Ltd. Assessee, therefore, requested that the said changed name AMR India Ltd. may be mentioned in the appeals of Revenue and in the COs filed by Assessee while passing order. 2. Revenue filed four appeals for AY 2003-04 to 2006-07 against separate orders of CIT(A)-VII, Hyderabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,60,920/- 27-12-2007 3,08,20,940/- 2006-07 27-11-06 12-02-08 (revised) 8,63,72,832/- 6,62,28,697/- (Revised) 31-03-2008 6,86,63,938/- Consequent to the search, the AO issued notices u/s 153A and in response to the said notice, Assessee company filed its returns of income on 31-03-2010 declaring assessed income as per the assessment order made u/s 143(3) in respect of the assessment years. Since Assessee s books of account were not available, the AO referred the matter for special audit u/s 142(2A) of the Act and the special auditor did not submit any report as no books of account and details were furnished. The AO completed the assessments by disallowing mainly 50% of the sub-contract payments made in respect of the assessment years under consideration thereby making addition for AY 2003-04 of ₹ 1,54,00,000/-, for AY 2004-05 of ₹ 2,22,00,000/-, for AY 2005-06 of ₹ 5,16,00,000/- and for AY 2006-07 of ₹ 22,00,000/- ₹ 1,86,37,627/- to Bharath Infrastructure. In addition, in AY 2003-04, the AO disallowed unexplain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which include completed assessments, the assessments u/s 153A shall be made on the basis of incriminating material found and seized during the course of search. The appellant had also enclosed the copy of the said decision. 6.2 It is a fact not disputed that there was no specific incriminating material found during the course of search indicating any undisclosed income for the AY under consideration. The Assessing Officer while making the assessment order has basically referred to a seized document pages 144 to 150 of Annexure AI AMRCL/02 found and seized during the course of search, which has been formed as a part of the assessment order. I have gone through the same and I find that the said seized papers relating to certain accounting adjustments for the year 2008. The Assessing Officer has also referred to a tabular statement which forms part of the Asst. order as Annexure-II. However, the said tabular statement giving a list of different persons is undated and unsigned. The Assessing Officer has not given any specific finding that any of the entries in the tabular statement as in Annexure-II of the asst. order is for the year 2003-04. The asst. order indicates that the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment and the provisions of sections 153A to 153C can be resorted to for the assessment of undisclosed income in search cases. All the three procedures of assessment operate in different fields and have different purposes to be fulfilled altogether. The Hon'ble ITAT at Para 18 of the order concluded that the additions made by the Assessing Officer being all relating to regular items are hereby deleted. While deciding the issue the Hon'ble Tribunal has referred to the decision of Hon'ble Jharkhand High Court in the case of Abhay Kumar Shroff at Para 16 of the order as below: 16. The Hon'ble Jharkhand High Court in the case of Abhay Kumar Shroff (supra), has held recently that there shall be assessment of undisclosed income of six assessment years preceding that in which search was conducted under the new scheme of assessment. [Emphasis supplied]. 6.6 A similar view was also expressed in the case of Sun City Alloys (ITAT, Jodhpur), wherein it was held that the submission of the assessee's counsel as to scope of section 153A assessment being de novo in nature is not acceptable and submission of the Ld. DR that scope of section 153A assessment is qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments were reopened by virtue of provisions of section 153A. In such cases, the AO has to complete such assessments without making any further addition. Hence the second issue urged before us is answered in favour of the assessee. It is also not out of place to mention here that the Hon'ble jurisdictional Tribunal ITAT Hyderabad has also made similar observations in some of the recent cases. In the case of ACIT/DCIT, Central Cricle-5 Vs Platina Properties Projects Ltd in ITA No. 1622, 1623, 573 to 576/Hyd/2008, the Hon'ble ITAT, Hyderabad B-Bench at Para NO.6 has observed as under: .... the present assessment is made u/s 143(3) r.w.s. 153A rws 153C of the Act. The second proviso of sub section 1 to section 153A provides that if assessment for any of the assessment year falling within in a period 6 years mentioned in clause (b) of Section 153A (1) is pending on the date of search, it shall abate. The present assessment year is 1999-2000 which is falling within the period of 6 years but its assessment is complete and hence the proceedings do not abate. In other words the original assessment was made u/s 143(3) has become final and is not affected by the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions/disallowances in assessment under section 153A/153C can be made only in respect of material found during the course of search and it is also the view of the judicial authorities that assessment which are already complete earlier prior to the date of search shall not abate and will not be within the purview of section 153A or 153C, unless there is any fresh material found during the search relating to those years and in that case, additions can be restricted to such material only. 6.12 In the appeal before me for consideration, it is a fact not disputed that the assessments for the year under consideration, was already completed earlier u/s 143(3) vide order dated 28.11.2005. It is also a fact not disputed that the AO has not specifically pointed out any material found during the course of search based on which the additions have been made in the assessment years which is under appeal. This is further strengthened by the fact that there is no reference to any specific seized document which has a direct relevance for the year under consideration which means that there was no incriminating material against the appellant for this assessment year that can prompt the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments, income has gone up and has not come down, therefore, the seized paper cannot be considered as bogus entries for claim of sub-contract expenses and further it was submitted that this document only pertains to AY 2008-09 and in nowhere it refers to the years under consideration. Referring to case law relied upon by the learned DR, the learned counsel submitted that they are distinguishable on facts of the case of Assessee on the reason that in those cases there is incriminating material for some of the years for interim period and there was admission by the parties that they were following similar modus-operandi in other years and on those facts, the Hon ble High court have agreed that additions can be extended to the other period. Whereas in Assessee s case, there is no incriminating material for any of the impugned assessment years and further in the absence of incriminating material completed assessments cannot be re-agitated. He relied on various case law, on which reliance was placed by the learned CIT(A) to contend that assessments passed by the AO is bad in law. 9. After considering rival contentions and examining the record, we do not find any reason to interfere w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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