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TMI Blog2013 (12) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing grounds have been raised in this appeal. "1] That on the facts and in the circumstances of the case, the Ld. CIT(A) ought to have cancelled the assessment order passed by the learned Assessing Officer u/s 143(3) read with section 153C in the individual name of the appellant particularly when the warrant of authorization to search was issued in the joint names of several persons. 2] That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in sustaining an addition in the agriculture income particularly when no material was found in the search which justify such addition. 3] That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in sustaining the addition of Rs. 95,231/- made by the Assessing Officer in respect of agricultural income shown by assessee in the regular return of income filed u/s 139(1) treating the same as income from other sources particularly when no material was found as a result of search which disproves such claim. 4] That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in sustaining the addition which is outside the purview of Section 153A/153B of the Act. 5] That on the facts and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions, the learned D.R. supported the orders of the authorities below. 9. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, it is an admitted fact that the assessee filed the original return of income u/s 139(1) of the Act by showing the agricultural income at Rs. 95,231/- and the income disclosed in the said return was accepted by the 6 department. Later on, a search u/s 132 of the Act was carried out on 25/3/2008. However, no incriminating document or material was found during the course of search but the Assessing Officer while framing the assessment u/s 153C of the Act considered the agricultural income shown by the assessee in the original return of income, as "income from other sources". A similar issue has been decided by this Bench of the Tribunal in the aforesaid referred to case of Shri Vishal Dembla Vs. DCIT wherein by following the judgment of the Hon'ble jurisdictional High Court in the case of M/s Jai Steel (India) Vs. ACIT (2013) 259 CTR (Raj.) 281, it has been held that in the absence of recovery of any document or incriminating evidence in the course of search, gifts al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the assessment for the said year. The necessary corollary of the second proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and, such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. The argument raised by the counsel for the assessee to the effect that once a notice under s. 153A is issued, the assessments for six years are at large both for the AO and assessee has no warrant in law. From a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under ss. 132 and 132A, it is apparent that : (a) the assessments or reassessments, which stand abated in terms of second proviso to s. 153A, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what has been concluded by the High Court. Any interpretation which leads to such conclusion has to be repelled and/or avoided. Consequently, it is held that it is not open for the assessee to seek deduction or claim expenditure which has not been claimed in the original assessment, which assessment already stands completed, only because an assessment under s. 153A in pursuance of search or requisition is required to be made--Suncity Alloys (P) Ltd. vs. Asstt. CIT (2009) 124 TTJ (Jd) 674 : (2009) 27 DTR (Jd)(Trib) 139 affirmed; CIT vs. Smt Shaila Agarwal (2012) 246 CTR (All) 266 : (2012) 65 DTR (All) 41 : (2012) 346 ITR (All) relied on; K.P. Varghese vs. ITO (1981) 24 CTR (SC) 358 : (1981) ITR 597 (SC) applied. Conclusion : In an assessment under s. 153A, it is not open to the assessee to seek deduction or claim relief not claimed by it in the original assessment which already stands completed before the date of initiation of the search or making of requisition." 2.9 Therefore, by respectfully following the above judgment, we allow ground No. 2, in all the years, in favour of the assessee. The gifts already disclosed by the assessee in the returns of income, which have attained f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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