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TMI Blog2015 (9) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) Grounds of Appeal (Without prejudice to each other) 1. In law and in the facts and circumstances of the appellant's case, the CIT(A) erred in dismissing the assessee's appeal. 2. On the facts and in the circumstances of the case, the CIT(A) erred in not accepting the Assessee's plea that it was not at all a fit case for invoking the provisions of Section 153A and he further erred in upholding the validity of impugned Assessment Order under Section 153A, dated 21st December, 2010. 3. Without prejudice, on the facts and in the circumstances of the case the CIT(A) should have realized that the Assessing Officer was not justified in embarking upon the processing and scrutiny of the assessment in a fashion which was permissible in a regular assessment under Section 143(3) but in this particular case it was not permissible under Section 153A/153C. 4. Without prejudice, the CIT(A) should have held that in an assessment made in pursuance of section 153A, none of the two adjustments made in the aforesaid Assessment Order were required to be made. 5. Without prejudice, on the facts and in the circumstances of the case, the CIT(A) erred in upholding total disallowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound at the time of search. He submitted that this issue of legality of assessment u/s.153A of the Act be decided first before deciding the other grounds on merits. He submitted that the issue is squarely covered in favour of the assessee by the decision of the Hon'ble ITAT Mumbai Bench (Special Bench) rendered in the case of All Cargo Global Logistics Ltd. vs. Dy. CIT, Central Circle-44, reported at (2012) 23 taxmann.com 103(Mum.)(SB)::137 ITD 287, dated 06/07/2012. He further submitted that the view of the Special Bench has been affirmed by the Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. reported at (2015 58 taxmann.com 78 (Bombay). The ld.counsel for the assessee submitted that the AO has nowhere stated that the impugned additions have been made on the basis of the material found during the course of search. Therefore, the appeal was taken up for hearing to decide the legality of the assessment passed u/s.153A of the Act. Further, the ld.counsel for the assessee reiterated the submissions made in the statement of facts. 4.1. On the contrary, ld. CIT-DR supported the orders of the authorities below and submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agriculture income from various parties. However he failed to justify the expenses incurred at lower side. Accordingly it will be reasonable to estimate the expenses incurred @20% of the Agriculture Income. Therefore the assessee might have incurred the difference of Rs. 223861/- (20% of Rs. 1119304 Less expenses of Rs. 50000/- already claimed) from his undisclosed income for the year under consideration and therefore the same is added to the total income. Penalty proceedings u/s.271(1) (c) of the income tax Act are initiated separately for furnishing inaccurate particulars of income." 5.1. Before the ld. CIT(A), the arguments of the assessee were in the following manner:- "1. Regarding order being bad in law 1.1 At the very outset, the appellant vehemently challenges the validity of the assessment made u/s 153A of the Income-tax Art. The reassessment framed by the Id. Assessing Officer u/s 153A is bad in law and is, therefore, liable to be quashed. 1.2 The appellant submits that during the course of search no incriminating materials in the form of books of accounts/documents or any unexplained money, bullion, jewellery or any other valuable asset was found. This proves that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - CIT(A) partly allows the appeal - Assessee argues before the Tribunal that since no material is found as a result of search no addition could be made - Held that the additions made by the AO are not based on the material found as a result of search and hence the same are deleted - Assessee's appeal allowed. (v) Decision of Mumbai ITAT in case of Helios Food Additives P Ltd. vs. DCIT wherein Hon'ble Mumbai ITAT vide its order dated 16/07/2010 in ITA No.3900 & 3901/Mum/2009 held as under: "If the assessment u/s 153A is equated with the regular assessment to be made u/s 143(3) then that is against the legislative spirit as in the case of search and seizure operation, the Income tax authorities have physical access to the assessee's places; business or residential places and the revenue can grab the evidence against the assessee in respect of the undisclosed income if any. If there is no evidence found during the course of search and seizure operation then no forcible addition or disallowance can be made in respect of any deduction or claim of the assessee which otherwise made in regular return in respect of which no assessment proceedings pending." In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The ITAT, 'C' Bench, Delhi in the case of Ms. Shyam Lata Kaushik -vs.- ACT, Central Circle, Faridabad reported in [2008] 114 ITD 305(Delhi) held as under:- "The contentions of the assessee could not be accepted. There is no requirement for an assessment made under section 153A being based on any material seized in the course of search. Further, under the second proviso to section 153A, pending assessment or reassessment proceedings in relation to any assessment year falling within the period of six assessment years referred to in section 153A(b) shall abate. Thus the Assessing Officer gets jurisdiction for six assessment years referred to in section 153A(b) for making an assessment or reassessment. It was not the complaint of the assessee that any income, which was already subjected to assessment under section 143(3) or under section 148 completed prior to the search in respect of six assessment years referred to in section 153A(b) and in the second proviso to section 153A had also been included in the assessment framed under section 153A. In such circumstances, the plea of the assessee could not be accepted". 8.1. It is also pertinent to note that the assessee na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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