TMI Blog2015 (3) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ninfluenced by the fact whether or not there is any incriminating material. As already observed that no incriminating material has been found relating to the year in which the assessee has received gifts. Therefore, in our opinion, no addition on account of the gifts can be sustained. Accordingly, on this basis itself, we delete the addition on account of gifts - Decided in favour of assessee. - ITA NO. 112/PNJ/2014 - - - Dated:- 9-12-2014 - SHRI P.K. BANSAL AND SHRI D.T. GARASIA, JJ. For The Assesssee : P. Dinesh, Adv. For The Revenue : Ratnakar, DR ORDER PER P.K. BANSAL 1. This appeal has been filed by the Assessee against the order of CIT(A), Belgaum dt. 20.8.2013 for A.Y 2005-06 by taking the following effective grounds of appeal : 1. In the facts and in the circumstances of the case, the learned CIT(A) grossly erred in passing the order in the manner which he did. 2. The learned CIT(A) erred in confirming the addition made by AO towards gift received by the Appellant from Sri Harish Wadva (Stating the name of Sri Hasim Mod) by relying on the ratio of the Hon'ble Supreme Court and Hon'ble High Court of Karnataka which are totally di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly contended that the additional grounds taken by the Assessee are legal grounds and relates to the validity of the addition and no further material is required to be investigated. Therefore, these grounds be admitted. Reliance was placed in this regard on the following decisions : Sl.No. Name of the Judgement ITR 1 National Thermal Power Co. Ltd. vs. CIT 229 ITR 383 (SC) 2 Jute Corporation of India Ltd. 187 ITR 688 (SC) 3 Ahmedabad Electricity Co. vs. CIT 199 ITR 351 (Bom) 4 CIT vs. Jay Engineering Works Ltd. 233 ITR 433 (Del) 5 CIT vs. Indian Overseas Bank 239 ITR 335 (Mad) 6 CIT vs. Commonwealth Trust (India) Ltd. 221 ITR 474 (Ker) 7 CIT vs. Mayur Foundation 274 ITR 562 (Guj) 5. The ld. DR on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuineness of the same and assessment was completed u/s 143(1). During the course of the search no new material was found to justify the proceedings u/s 153C. The AO did not record any satisfaction for initiating proceedings u/s 153C. Reliance was placed in this regard on the following decisions : Sl. No. Name of the Judgement ITR 1 CIT vs. Gopi Apartment 107 DTR (All) 217 2 Manish Maheshwari vs. CIT 289 ITR 341 (SC) 3 CIT vs. Calcutta Knitwears 267 CTR(SC) 105 4 CIT vs. Anil Kumar Bhatia ITA No.1626/2010 and others dt. 7.8.2012 5 CIT vs. Radhey Shyam Bansal Ors 337 ITR 217 (Del) 6 P. Sathyanarayanan vs. ACIT 50 SOT (Chennai) (URO) 168 7 Delhi High Court judgement in the case of SSP Aviation Ltd. vs. DCIT - WPC Bo. 309/2011 dt. 29.3.2012 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court in the case of Anil Kumar Bhatia and SSP Aviation Ltd. will be dealt with by us while giving finding whether any addition can be made in the case of the Assessee in the impugned facts of the case. The decision of the Hon'ble Delhi High Court in the case of CIT vs. Radhey Shyam Bansal Ors., 337 ITR 217 relates to the provision of Sec. 158BD and therefore is not applicable to the case of the Assessee. In respect of the other decision, copy of the decision was not placed before us even though the counsel of the Assessee was specifically asked for it. 10. Now, coming to the issue whether any addition can be made on account of gifts received by the Assessee which has already been shown in the regular return filed by the Assessee and for which the regular assessment has already been completed, let us look into the provisions of the section 153A under Chapter 14 under the title Assessment in case of search or requisition?. The provisions of section 153A, 153B 153C were inserted by the Finance Act, 2003 w.e.f 1.6.2003. Originally section 153A of the Act did not have any sub-section. However, sub-section (2) to Section 153A was inserted by the Finance Act, 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year.? Xx xx xx xx 153C.Assessment of income of any other person.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng action u/s.153C of the Act and framing assessment u/s.153A of the Act, the pre-requisite is that the satisfaction of the Assessing Officer that the money, documents and papers, etc belongs to a person other than the person in whose case search is conducted u/s.132 of the Act. 13. It is apparent from the language of section that the section does not require that the documents belonging to the assessee must be incriminating documents. Section 153C gives the jurisdiction to the Assessing Officer once the documents belonging to the assessee are found in the case of the assessee in whose case the search had taken place. 14. We noted that on the issue whether any addition can be made in the assessment made u/s.153A, when no incriminating documents is found during the course of search, a Special Bench was constituted in the case of All Cargo Global Logistics Ltd vs. DCIT, (2012) 137 ITD 287 (SB)(Mum) on the following question: ?Whether, on the facts and in law, the scope of assessment u/s 153A encompasses additions, not based on any incriminating material found during the course of search? Before the Special Bench, Ld Sr. Counsel relied on the decision of LMG International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 20, it has been observed as under: ?even if assessment order had already been passed in respect of one or any of the sixrelevantassessment years either u/s143(1)(a) or 143(3)prior to the initiationofsearch, still the AO is empowered to reopen those proceedings u/s 153A without any fetters and reassess total income taking note of undisclosed income, if any, unearthed during the search. 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 existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search.? 18. The above observations of Hon?ble High Court, which are though obiter dicta, make it point clear that where an assessment order has already been passed for a year or years within the relevant six assessment years, then the AO is duty bound to reopen those proceedings and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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