TMI Blog2014 (7) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by considering the originally determined income - if some incriminating material is found in respect of such assessment years for which the assessment is not pending, then the 'total income' would be determined by considering the originally determined income plus income emanating from the incriminating material found during the course of search - In the other scenario of the assessments pending on the date of search which would abate in terms of second proviso to sec. 153A(1), the total income shall be computed afresh uninfluenced by the fact whether or not there is any incriminating material - no addition can be made for any assessment year u/s 153A, the assessment for which is not pending on the date of search, unless any incriminating material is found in the course of search - The assessment order is silent on both the counts as to whether the assessment for AY 2003-04 was pending as on the date of search and whether any incriminating material was found during the course of search having bearing on the addition so made – the matter is to be remitted back to the AO for fresh adjudication – Decided in favour of Assessee. - ITA No. 3184/Del/2013 - - - Dated:- 16-6-2014 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional ground be admitted and disposed of on merits. The ld. DR strongly opposed to the raising of this ground at this belated stage before the Tribunal. He submitted that it was too late in the day for the assessee to come out with such a ground before the Tribunal which was neither raised before the ld. CIT(A) nor the AO. 4. We are not convinced with the arguments put forth by the ld. DR that the additional ground so raised before us cannot be admitted. It is clear from the ground itself that the assessee has taken up a question of law in support of not making this addition because no incriminating material was found during the course of search on this score and further, no assessment was pending. The Hon ble Supreme Court in the case of National Thermal Power Company Ltd. vs. CIT (1998) 229 ITR 383 (SC), has held that the Tribunal has jurisdiction to examine a question of law for the first time which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee, notwithstanding the fact that the same was not raised before the lower authorities. In view of the above verdict given by the Hon ble Supreme Court, we are incli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us examine the judgments of the Hon ble jurisdictional High Court relied on by the ld. DR. The first is that in the case of SSP Aviation Ltd. (supra). The ld. DR accentuated on para 15 of this judgment to canvass the view that addition can be made u/s 153A de horse any incriminating material found in the course of search. This para reads that the satisfaction required to be reached by the AO having jurisdiction over searched person is that the valuable articles or books, etc., seized during the search belong to a person other than the searched person. The later line on which the ld. DR forcefully emphasized is that: there is no requirement in Section 153A (1) that the AO should also be satisfied that such valuable articles or books of account or documents belonging to the other person must be shown to conclusively reflect or disclose any undisclosed income. It is relevant to note the factual matrix of that case, in which a search was carried out in the P group of companies. In the course of search, certain documents were found showing that the assessee acquired certain development rights from P group of companies. A satisfaction was recorded by the AO in the case of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was emphasized that the courts cannot reframe the legislation. He summed up his contention that since the legislature in its wisdom has considered it inappropriate to base addition only on the incriminating material found during the course of search, the same cannot be read by the tribunal in the provision. 9. We are fully convinced with the argument advanced by the ld. DR in so far as the non-applicability of section 158BB to section 153A of the Act is concerned. Obviously, Chapter XIV-B of the Act deals with computation of undisclosed income, whereas section 153A, etc., provides for the computation of total income. However, we find that the language of section 153A has been structured in such a way so as not to permit the making of addition for the assessment year of which the assessment is not pending as on the date of search, without there being any incriminating material found during the course of search. At this stage, it would be appropriate to consider the relevant parts of section 153A of the Act, as under:- 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer but from all sources including the undeclared ones, or unplaced material before the AO. The position which emerges on a reading of clauses (a) or (b) of sec. 153A(1) along with the first proviso is that the Assessing Officer is supposed to determine the total income' of the assessee in respect of the relevant six assessment years. Second proviso to sec. 153A(1) eclipses the afore discussed determination of 'total income'. Such proviso mandates that any pending assessment or reassessment relating to any assessment year falling within the period of six years referred to in sub-sec. (1) on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. The effect of the second proviso is that any pending assessment or reassessment on the date of search for any assessment year falling within the period of relevant six assessment years shall abate and a fresh determination of 'total income would be required. Now a question arises that what is the effect of second proviso on the assessments for any assessment years falling within the period of six assessment years, which are not pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed income, if any, unearthed during the search. It is clear that the Hon'ble High Court dealt with a situation in which some incriminating material was found in respect of a non-pending assessment. It was in that background that the Hon'ble High Court held that sec. 153A applies if incriminating material is found even if assessments are completed. The question as to whether any addition can be made in respect of completed assessments when no incriminating material was found, was apparently left open. However, we find that there are sufficient indirect hints given by the Hon'ble Delhi High Court in the case of Anil Kumar Bhatia (supra) about not making of any addition in respect of an assessment year for which the assessment is already completed unless some incriminating material is found during the course of search. This can be seen from the following observations of the Hon'ble High Court :- 20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lus income emanating from the incriminating material found during the course of search. In the other scenario of the assessments pending on the date of search which would abate in terms of second proviso to sec. 153A(1), the total income shall be computed afresh uninfluenced by the fact whether or not there is any incriminating material. In fact, this is the position which follows when we read the judgment of the Hon'ble Delhi High Court in Anil Kumar Bhatia (supra) in juxtaposition to the special bench order in the case of All Cargo Global Logistics Ltd.(supra). 14. Since the Special Bench has decided this issue in this manner, it is not possible for us to deviate from the same. There has to be some consistency in the view taken by the Tribunal. Once a Special Bench has decided a particular issue in a particular manner, then, that becomes binding on all the division benches across the country unless there is a contrary judgment of the Hon ble Supreme Court or that of some High Court. As the ld. DR failed to point out any specific and direct judgment rendered by the Hon ble High Court on the issue which is obtaining in the present appeal, we are disinclined to deviate from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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