TMI Blog2016 (4) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 2005-06 on the following ground:- Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was right in deleting the addition of ₹ 50,19,494/- made by the AO on account of excess depreciation claimed by the assessee without considering the merit of the case and merely taking into account the facts that original assessment was already completed u/s. 143(3) of the Income Tax Act, 1961 2. The brief facts of the case are that a search and seizure operation was carried out on 15.12.2010 covering the residential and business premises of the assessee. In response to notice u/s. 153A, return declaring income of ₹ 33,93,10,591/- was filed on 23.12.2011. The original return of income u/s. 139(1) was filed on 26.10.2005 declaring ₹ 33,93,10,591/-. The assessment was completed at ₹ 34,43,30,085/-, by adding an amount of ₹ 50,19,494/- on account of excess claim of depreciation vide Order dated 31.12.2012 passed u/s. 153A(1)(b)/143(3) of the Income Tax Act, 1961. 3. Against the aforesaid assessment order dated 31.12.2012, assessee preferred an appeal before the Ld. CIT(A), who vide impugned order dated 25.7.2013 has partly al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53A of the Income Tax Act, 1961. Chapter XIV of the Act and provisions of Section 153A were brought in the statute by Finance Act 2003 w.e.f. 1.6.2003. It reads as under:- 153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. In other words, the AO is bound to issue notice to the assessee for each assessment year falling within six assessment year reckoned from the date of search. AO is also empowered to assess or reassess the 'total income' of the aforesaid years. This has been the stand of the Delhi High Court in CIT v Anil Kumar Bhatia (2012) 80 DTR 169. The Hon'hle High Court has also laid down that this amendment has been brought about to avoid multiplicity of assessment. It may be reiterated that the provisions of Section 153A does not provide that the assessment/reassessment should he based on 'incriminating material'. However, one may state that the Delhi High Court (supra) in para 23 has left the issue open. Not without reason, the Hon'ble Andhra Pradesh High Court in Gopal Lal Bhadruka Ors (2012) 77 DTR 146 has observed that Section 15BBI was introduced by the Finance Act, 2003. The said provision also stated that Chapter XIVB did not apply after 315.2003. It has categorically held in para 17 that while the provisions of Charter XIV-B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts Ltd., 8B ITR 192 (SC). 6.3.1. Recently the Hon'ble Rajasthan High Court in Jai Steel (India) v ACIT (2013) 88 DTR (Raj) 1, has rendered a decision on the issue and has held in para 30 (Page 15) as under:- 30. The plea raised on behalf of the assessee that as the first proviso provides for assessment for reassessment of the total income in respect of each assessment year foiling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess' have been used at more than one place in the section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word 'assess' has been used in the context of abated proceedings and 'reassess' has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would also necessarily support the interpretation that/or the completed assessments, the same can be tinkered only hosed on the incriminating material found during the course of search or req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an ITA Nos. 707, 709 and 713 of 2014 of assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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