TMI Blog2016 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessment in question was not valid and it was void ab initio. The same is quashed as such. - Decided in favour of the assessee. - ITA No. 5297/Del/2013 - - - Dated:- 10-6-2016 - SHRI I.C. SUDHIR AND SHRI PRASHANT MAHARISHI Assessee by: Dr. Rakesh Gupta Sh. Somil Aggarwal, Adv. Department by: Smt. Renuka Jain Gupta, CIT (DR) ORDER PER I.C. SUDHIR: JUDICIAL MEMBER The assessee has questioned first appellate order on the following grounds: 1. That having regard to the facts and circumstances of the case, Learned CIT(Appeals) has erred in law and on facts in confirming the action of the Ld. A.O. in framing the impugned assessment order u/s. 153A/143(3) without assuming jurisdiction as per law and without obtaining requisite approval as per law and without complying with the other mandatory condition envisaged under the Act, more so when no incriminating material have been found as a result of search. 2. That having regard to the facts and circumstances of the case, Learned CIT(Appeals) has erred in law and on facts in making disallowance of ₹ 27,20,000 u/s. 40A(3) and too without considering the submissions/evidences of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 (Del.) and the hearing is being adjourned since long on one basis or the other. He submitted further that no such objection was raised by the Learned CIT(DR) while seeking adjournment on 7.6.2016. He submitted that the acknowledgement of return of income filed on 14.11.2007 does not bear any signature in the acknowledgement of receipt by the Revenue since it is computer generated. He pointed out that it is in public domain on the available site of the department which can be verified on the basis of Electronically Digitalized Code given at the bottom of the acknowledgement. The Learned AR submitted that he is still trying to procure some more documents to support his submission that return of income under sec. 139(1) of the Act was filed on 14.11.2007, which will be furnished during the course of hearing of the appeal itself. He contended that the acknowledgement of return of income has been issued by the Revenue itself. In the acknowledgement of the return, electronically filed, data of return of income is transmitted electronically without digital signature under Rule 12 of the Income-tax Rules, 1962. He referred the assessment order wherein in para No.2, the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been able to corroborate this fact that return of income under sec. 139(1) of the Act for the assessment year under consideration was filed by the assessee on 14.11.2007. The parties were thus directed to advance their respective arguments on the validity of assessment framed under sec. 153A/143(3) of the Act. 6. The Learned AR reiterated the above contention that on the date of search, no incriminating material was found relating to the assessee and on that date no assessment was pending for the abatement. In this regard, he referred orders of the authorities below wherein nothing incriminating has been mentioned found during the course of search. The disallowance under sec. 40A(3) of the Act in the assessment has been made not on the basis of any incriminating material found during the course of search. He placed reliance on the above cited decision of the Hon'ble jurisdictional High Court of Delhi in the case of Kabul Chawla (supra) with this further submission that in that case also return was filed and processed under sec. 143(1) of the Act and no notice under sec. 143(2) was issued within the prescribed time limit. The Learned CIT(Appeals) has decided the issue against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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