TMI Blog2014 (7) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrate as to how the addition in respect of those very issues, which have received finality earlier and in respect of which no new or incriminating material is found, can be taken upon the course of proceedings u/s 153A on the basis of the search – the order of the CIT(A) is upheld – Decided against Revenue. - I.T.A. No.: 92/Agra/2014 - - - Dated:- 4-7-2014 - Bhavnesh Saini JM and Pramod Kumar AM,JJ. For the Appellant : Waseem Arshad For the Respondent : Prarthana Jalan ORDER Per Pramod Kumar: 1. This appeal, filed by the Assessing Officer, is directed against the order dated 11th October 2013, passed by learned CIT(A) in the matter of assessment under section 153 A of the Income Tax Act, 1961, for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to travel beyond the power vested to him as per I.T. Act. 7. That the order of the Ld. CIT(A) being erroneous in law and on facts which needs to be vacated and the order of the A.O. be restored. 8. That the appellant craves leave to add or amend any one or more of the ground of appeal as stated above as and when need for doing so may arise. 3. To adjudicate on this appeal, only a few material facts need to be taken note of. A search was conducted on the assessee s premises on 24th February 2010. The present assessment order was passed as a result of these search proceedings. On the basis of certain entries, the Assessing Officer noted that the assessee has made investments of ₹ 58,25,000 in certain properties. When Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut discussing any fresh evidence found during the second search operation. In the order under appeal passed u/s 153A which is passed after second search operation conducted on 24.02.2010, no finding of the AO has been given with respect to any material found during the second search operation on the basis of which, he has again made the similar addition, which have already been made in the second assessment order passed u/s 147/143(3). As per the second proviso of section 153A, only the assessment or reassessment pending on the date of initiation of search u/s 132 shall abate. In this case, the search has taken place on 24.02.2010 much after the date of passing of the first search assessment order dated 29.12.2006 and the reopening was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miliarization with law and another case of CIT Vs. Sun Engineering Works (P) Ltd. (1992) 198 ITR 297 (SC), in which, it was held that the scope of reassessment is only with regard to the income escaping assessment and the matter which have attained finality in original assessment cannot be re-agitated in reassessment proceeding and then after relying on these two decisions, it has been held by the Hon'ble Tribunal that if the assessee is precluded from re-agitating the issue in. reassessment proceeding, in similar fashion, the AO is also precluded from reagitating the issue which has attained finality in original assessment proceedings. The original assessment proceedings are subject to further appeals. Therefore, as per section 153A, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) on merits as well. No doubt, as reproduced above, learned CIT(A) has decided the issue on jurisdictional issue, in favour of the assessee, but he did not leave it at that. In the end, and without prejudice to this decision, he decided the matter on merits in favour of the assessee as well. In these circumstances, and without a specific challenge to action of the CIT(A) on merits, the very appellate exercise is an exercise in futility. The appeal filed by the Assessing Officer must fail for this reason alone. In any event, the issue in appeal, on jurisdictional issue, seems to be covered in favour of the assessee by a coordinate bench of this Tribunal in the case of ACIT Vs KS Food Products ( ITA No. 519/Agra/2012; order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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