TMI Blog2013 (5) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... SINGH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER For the Appellant: Mr. P.R. Majithia a/w Mr. B.R. Majithia For the Respondent: Mr. D.K. Sinha ORDER PER AMIT SHUKLA, J.M. These cross appeals are directed against the impugned order dated 25th November 2010, passed by the learned Commissioner (Appeals)- XXXXI, Mumbai, for the quantum of assessment passed under section 143(3) r/w section 153C of the Income Tax Act, 1961 (for short the Act ) for the assessment year 2005 06. We first take up assessee s appeal in ITA no.8917/Mum./2010, for the assessment year 2005 06, vide which, following grounds have been raised: (i) In ground no.1, the assessee has challenged that no addition could have been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner (Appeals) confirmed the addition and with regard to disallowance under section 14A, the learned Commissioner (Appeals) directed the Assessing Officer to adopt a reasonable basis for apportioning the expenditure which can be said to be attributable for earning of exempt income after following the judgment of Hon'ble Jurisdictional High Court in Godrej Boyce Mfg. Co. Ltd. v/s DCIT, [2010] 328 ITR 081 (Bom.). 3. Before us, the learned Counsel raised a preliminary objection that once the return of income filed by the assessee has attained finality and no assessment was pending, such an assessment cannot be abeted in view of the provisions of section 153A and in such a situation, once no incriminating material has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y incriminating material. Further, in the entire assessment order, there is no whisper about any such seized material or incriminating documents so as to suggest that the gift received by the assessee during the relevant assessment year was not genuine. 6. We have heard the rival contentions on the preliminary issue as to whether the addition can be made in the present case once the assessment for the assessment year 2005 06 has attained finality and no incriminating material was found during the course of search. On a perusal of the records and the findings of the Assessing Officer and the learned Commissioner (Appeals), we find that there is no reference to any seized material or any incriminating documents so as to suggest that additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final prior to the date of search and there is no material found at the time of search. The aforesaid Mumbai Special Bench decision of the Tribunal in All Cargo Global Logistic Ltd. (supra) has also been reaffirmed and applied by the co ordinate bench in Gurinder Singh Bawa (supra). The relevant observation of the Tribunal is reproduced herein below: 6. We have perused the records and considered the rival contentions carefully. The dispute raised is regarding legal validity of addition made by AO under section 153A of the Act. Under the provisions of section 153A, in all cases, where search is conducted under section 132 of the Act, AO is empowered to assess or reassess total income of six assessment years preceding the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income for six years immediately preceding the year of search. The Special Bench further held that in case assessment has abated, the AO retains the original jurisdiction as well as jurisdiction under section 153A for which assessment shall be made for each assessment year separately. Thus in case where assessment has abated the AO can make additions in the assessment, even if no incriminating material has been found. But in other cases the Special Bench held that the assessment under section 153A can be made on the basis of incriminating material which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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