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TMI Blog2015 (1) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... ) erred in deleting the additions by following the ratio laid down in the case of All Cargo Global Logistics 137 ITD 287 without going into the merits of the issues. 2. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored." 3. As facts are more or less identical in all these appeals, for the sake of brevity, we will deal with the facts as involved in ITA No. 1071/Hyd/14 for AY 2003-04. 4. Briefly the facts are, assessee a company is engaged in the business of manufacturing and trading of granite slabs, processed blocks and marble slabs/tiles, etc. For the AY under consideration, assessee filed its return of income originally on 29/10/2012 declaring loss of Rs. 67,54,270. Assessment in case of assessee was also completed u/s 143(3) vide assessment order dated 24/03/2005 determining the total income at Rs. 1,07,09,372. It is also mentioned by AO in the assessment order that assessee preferred appeal against the said assessment order before ld. CIT(A) and being unsuccessful there has gone in further appeal before the ITAT, which is still pending. Be that as it may, a search and seizure operation u/s 132 of the Act was cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is satisfied that any money, bullion, jewellery or ( her valuable article or thing or books of account or documents seized or requisitioned 1 .longs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153 A.] [Provided that n case of such other person, the reference to the date of initiation of the search under section 32 or making of requisition under section 132A in the second proviso to [subsection (1) of section 153A] shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person.] [Provided further that the Central Government may by rules made by it and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A should be derived from the incriminating material found during the course of search. The assessment proceedings u/s. 153C are also considered as proceeding u/s. 153A, since 153C is read with Sec. 153A. 4.7 (i) In the case of LMJ International Ltd., Hon'ble ITAT Kolkata, observed t at the items of regular additions cannot be taken up in the assessrnent u/s. 153A/153C. The head note in the case read as under: 'Section l53C, read with Section 153A, of the Income-tax Act,1 961, search and seizure - assessment of income of any other person - assessment year 1990-00 - whether items of regular assessment can be added back in proceedings under section 153C - Held, no - whether only undisclosed income detected in course of search of searched person or any other person can be added and charged to tax under section 153C - Held, yes." While deciding the issue the Hon'ble Tribunal referred to the decision of Hon'ble HigH Court of Jharkhand in the case of Abhay Kumar Shroff Vs. CIT (290 ITR 114) ii) In the case of KG Exports Vs. JCIT (ITA No. 494/V/2007), Hon'ble ITA , was of the view that only undisclosed income can be assessed u/ . 153A of the Income-tax Act. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tains the original jurisdiction as well as jurisdiction conferred on him u/s. 153A for which assessments shall be made for each of the (b) In other cases, in addition to the income that has already been assess I d, the assessment u/s. 153A will be made on the basis of incriminating material, which in the context of relevant provisions means (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search." 4.8 Further, on the said issue similar views were echoed from the following decisions of various Tribunals and High Courts. (i) Jai Steels (P) Ltd. Vs. CIT (88 ITR 1 (Raj.) (2013) (ii) ACIT Vs. Prathibha Industries ( 28 Taxmn.com 246 ITAT, Bom) In the case of ACIT Vs. Prathibha Industries Ltd. (supra), the decision of Special Bench, Bombay, in the case of All Cargo Global Logistics Ltd was followed, and it has been held that in cases where assessments are completed or time limit for issue of notices u/s. 143(3) have expired and no incriminating material has been found, the assessments have to be completed at NIL income. This view was also ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A) for AYs. 2004-05 to 2008-09 also. 8. Being aggrieved of the aforesaid decision of ld. CIT(A), revenue is before us. 9. We have heard the parties and perused the orders of the revenue authorities as well as other materials on record. It is clearly evident from the assessment order passed for the assessment year 2003-04 as well as other assessment years under appeal also, AO has initiated proceeding u/s 153A of the Act in all cases. However, as can be seen from the impugned orders of ld. CIT(A), though, in the cause title as well as while discussing the facts, ld. CIT(A) has mentioned that the assessment orders were passed u/s 143(3) read with section 153A, but, while recording his finding, ld. CIT(A) has proceeded as if the assessment proceedings were initiated u/s 153C of the Act. Therefore, to remove the confusion, ld. DR was asked to clarify on the issue. On the query made by Bench, ld. DR submitted before us that actually no search operation u/s 132 of the Act was conducted, but, only a survey u/s 133A was conducted in assessee's case. In this regard, ld. AR placed before the bench a letter dated 16/12/2014 received from DCIT, Central Circle - 2(5), Hyderabad and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) in holding that AO could not have made the additions. Accordingly, we uphold the order of ld. CIT(A) by dismissing grounds raised. As facts and issues are identical in the other appeals, they are also dismissed. 10. In the result, all the appeals of the Department are dismissed. 11. Now we will adjudicate assessee's appeal in ITA Nos. 1278 to 1283/Hyd/2014. 12. Though it is a fact that ld. CIT(A) has held assessments to be invalid in absence of incriminating material in all the aforesaid assessment years, but, assessee has still preferred appeals on the ground that ld. CIT(A) should have decided additions on merits also. However, considering the fact that we have upheld the order of ld. CIT(A) by dismissing the appeals of revenue for AYs 2003-04 to 2005-06 and 2007-08 hereinbefore and considering the fact that the department has not preferred appeal against the orders of ld. CIT(A) for AYs 2006-07 and 2008-09, issues raised by assessee in its appeals are reduced to mere academic interest, hence, there is no need to adjudicate them. In the aforesaid view of the matter, grounds raised by assessee have become infructuous. 13. In the result, appeals in ITA No. 1278 to 1283 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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