TMI Blog2016 (3) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of assessee. - ITA Nos.5760 & 5761/Del/2013 - - - Dated:- 19-2-2016 - SHRI N.K. SAINI, AM SMT. BEENA A. PILLAI, JM For The Assessee : Shri Somil Agrawal and Shri Tarun Kumar, Advocates For The Department : Shri O.P. Meena, CIT, DR ORDER PER BEENA A. PILLAI, JM: These appeals by the assessee arise out of the orders passed by the CIT(A)-XXXIII, New Delhi on 26.7.2013 in relation to the assessment years 2007-08 2008-09 on the following grounds:- ITA No.5760/Del/2013 1. On the facts and in the circumstances of the case, the Learned CIT(A) erred in upholding the validity of order passed by the Assessing Officer u/s 153A on 20.07.2012. 2. On the facts and in the circumstances of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of disallowance u/s 40A (3) value of work-inprogress would reduce at the time of conversion. 4. The appellant may kindly be allowed to raise any additional ground in the course of hearing of the appeal. 2. The brief facts of the case as recorded by the ld.AO are as under; 2.1. It is engaged in the business of real estate. A search and seizure operation was conducted u/s.132 of the Act on 23.03.2011 in the case of Group. Consequent upon search and seizure operations under Section 132 of the Income-tax Act, 1961 (for short the Act ) on the Amtek Group, the assessee was covered u/s.132(1) of the Act. A notice u/s.153A was issued to the assesssee on 14.10.2011. In response to the notice, the assessee filed its return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance u/s 40A(3) value of work-in-progress would reduce at the time of conversion. 3. Being aggrieved by the order of CIT(A), the assessee is in appeals for both the assessment years challenging the very jurisdiction of the Assessing Officer to make the assessment under Section 153A in the absence of any seized incriminating material. 3.1. We shall first deal with the very root of jurisdiction of the assessment. The ld. AR contended that there was no seized incriminating material indicating that there were cash payments, attracting the disallowances under Section 40A(3) of the Act. He further submitted that there was no abatement of assessment proceedings, inasmuch as, there is no pending assessment, and when the notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom.) and the decision of the Hon ble Bombay High Court in the case of CIT Vs. M/s. Murli Agro Products Ltd., ITA No. 36/2009, dated 29th October, 2010, has summarized the legal position as under: Summary of the legal position 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 6. Respectfully following the ratio laid down by the Hon ble Jurisdictional Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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