TMI Blog2015 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration would fall in the category of unabated assessments or not? - Held that:- In the instant cases, we have noticed earlier that both the assessees have not filed the return of income for the year under consideration under regular provisions of the Act. There should not be any dispute that the question of assessment shall arise only if the assessees have filed returns of income or if the assessing officer passes any assessment order to the best of his judgement u/s 144 of the Act. Hence, in the absence of return of income filed for the year under consideration and also in the absence of any other proceeding leading to passing of the assessment order, in our view, it cannot be said that there was any proceeding concluded/completed by the revenue for the year under consideration. In the absence of any proceeding, the question of the same becoming concluded also does not arise. In that view of the matter, the question of abatement or otherwise of the proceeding relating to AY 2006-07 also does not arise. Both the assessees have failed to furnish the details relating to the gifts received by them. The gift receipts fall under the category of cash credits falling within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,10,200/- (b) Ms.Vinti Lodha - ₹ 1,04,100/-. The AO sought explanation with regard to the gifts received by both the parties. Mrs.Sheetal Abinandan Lodha stated that she received the gift at the time of her marriage on 22.1.2006 from her relatives and friends. However, she could not provide the details of the persons from whom the gifts were received. Hence, the AO assessed the gift amount of ₹ 2,10,200/- as her income. Ms. Vinti Abhishek Lodha also could not furnish the details relating to the gift receipt of ₹ 1,04,100/- and hence the AO assessed the same as her income. 4. Before the ld. CIT(A), both the assessees contested the validity of addition of gift receipts by raising a legal ground, viz., the AO could not have made the additions, since the revenue did not unearth any incriminating materials relating to the gift receipts. According to the assessees, the assessment relating to the assessment year 2006-07 falls under the category of concluded proceedings and hence it would not abate as per the provisions of sec. 153A of the Act. In the following cases, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of gifts and hence the AO was not justified in assessing the gift receipts as income of the assessees herein. 7. The assessee was specifically asked by the Bench as to whether these assesses had filed return of income earlier u/s 139 of the Act for the assessment year under consideration, the ld. AR fairly admitted that they have not filed return of income u/s 139 of the Act. He also conceded that the return of income filed in response to the notice issued u/s 153A of the Act is the first return of income filed by the assessees. It is also pertinent to note that the AO had also not initiated any proceeding on his own to assess the income of the assessees for the year under consideration. He also submitted that there was no necessity for the assessees to file return of income, since the total income of these assessees was less than the non taxable limit prescribed for the relevant year. He submitted that non-filing of the return due to lower income level will not disentitle the assessee from applying the ratio laid down by the Special Bench of the Tribunal in the case of ALL CARGO GLOBAL LOGISTICS LTD(supra). He invited our attention to the second proviso to sec. 153A(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the date of initiation of search. Hence, the question of abatement of assessment does not arise in the instant cases. 10. The next question that arises is whether the assessment year under consideration would fall in the category of unabated assessments or not? In the instant cases, we have noticed earlier that both the assessees have not filed the return of income for the year under consideration under regular provisions of the Act. There should not be any dispute that the question of assessment shall arise only if the assessees have filed returns of income or if the assessing officer passes any assessment order to the best of his judgement u/s 144 of the Act. Hence, in the absence of return of income filed for the year under consideration and also in the absence of any other proceeding leading to passing of the assessment order, in our view, it cannot be said that there was any proceeding concluded/completed by the revenue for the year under consideration. In the absence of any proceeding, the question of the same becoming concluded also does not arise. In that view of the matter, the question of abatement or otherwise of the proceeding relating to AY 2006-07 also does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, any item of receipt/income disclosed in the return of income filed in response to the notice issued u/s 153A of the Act cannot be considered to have been assessed prior to the date of initiation of search. Hence, in our view, the question of application of answer (b) given by the Special bench also is not applicable to the facts of the instant cases. 13. Accordingly, we are of the view that the assessees could not place reliance on the decision rendered by the Special bench, referred above, in the absence of any proceeding concluded prior to the date of initiation of search. In that case, in our view, the assessing officer is entitled to scrutinize the return of income filed for the first time in pursuance to the notice issued u/s 153A of the Act, since none of the issues arising out of that return of income can be considered to have been concluded as on the date of initiation of search. 14. In view of the foregoing discussions, we are unable to agree with the contentions of the assessees on the legal issue urged by them. Accordingly we uphold the conclusion reached by the Ld CIT(A) that the ratio of the Special bench, referred above, shall not apply to the facts preva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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