TMI Blog2017 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... emains alive. There is no statutory provision under the Income Tax Act, 1961, which provides that in case search was conducted/assessment proceeding under Section 153A has been initiated then the tax, which remains unpaid by the assessee for the same period cannot be recovered from the assessee. In the considered opinion of this Court, the ground raised by the petitioner for quashment of complaint by taking into account Section 153A does not arise. The application for stay is rejected and the admission is declined. - WP No. 8001-2016 - - - Dated:- 16-12-2016 - S. C. Sharma And Rajeev Kumar Dubey, JJ. ORDER Parties through their counsel. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of the Writ Petition No.8001/16 are narrated hereunder. Petitioner before this Court is a company under the Companies Act, 1956. It is having manufacturing unit at Pithampur. Petitioner company has filed e-Return in respect of income for the assessment year 2013-14 declaring the total income of ₹ 19,61,04,970/- and total tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1998 (5) SCC 749. A prayer for quashment of criminal case No.09/16 has been made before this Court. On the other hand, the department has filed a reply and the contention of the department is that even after issuance of the notice under Section 153(A) and after filing Return under Section 153 of the Income Tax Act, the income originally declared and demand raised thereon remains alive. It has been stated that there is no clause under the Income Tax Act, 1961 providing that if search was conducted / assessment proceedings under Section 153(A) have been initiated, then the tax which remains unpaid cannot be recovered from the assessee. Ms. Veena Mandlik, learned counsel has vehementally argued before this Court that Section 153(A) deals with the pending assessment only and there is no provision to abate the demand raised on either self assessment demand or demand on completed assessment and reassessment proceedings. Learned counsel has argued that in the present case, assessment proceedings were not pending, therefore, the question of abatement does not arise, hence, the present writ petition be dismissed. Heard learned counsel for that parties at length an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. The aforesaid statutory provision makes it very clear that assessment under Section 153A is different from the required assessment. The section can be attracted only when the search is initiated under Section 132 or books of accounts, other accounts or any assets are requisitioned under Section 132 (A). The provision under Section 153 (A) has to be read in conjunction with the provisions contained under Section 132(1), the reason being that latter deals with the search and seizure and former deals with the assessment in case of search etc., thus, inextricable linked with each other. The provisions of Section 153A starts with non-obstante clause with reference to Sections 139, 147, 148, 151 and 153. Heavy reliance has been placed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer. To abate means to diminish or to take away. The word 'abatement' has been defined in the Concise Law Dictionary (P. Ramanatha Aiyer) as follows: Abatement. Abatement means, in respect of any chargeable accounting period, ending on or before the 31st day of March, 1947 a sum which bears to a sum equal to- (a) in the case of a company, not being a company deemed for the purposes of Section 9 to be a firm, six per cent of the capital of the company on the first day of the said period computed in accordance with Schedule II, or one lakh of rupees, whichever is greater, or (b) in the case of a firm having (i) nor more than two working partners, one lakh of rupees, or (ii) three working partners, one and a half of rupees, or (iii) four or more working partners, two lakh of rupees, or (c) in the case of a Hindu undivided family, two lakhs of rupees, or (d) in any other case, one lakh of rupees,-The same proportion as the said period bears to the period of one year and, in respect of any chargeable accounting period beginning after the 31st day of March, 1947, such sum as may be fixed by the annual Finance Act. [Business Profits Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A, to abate the proceedings, which have been completed, or concluded, and to restore assessment to the file of the Assessing Officer. 16. We do not find force in the submission of Shri Ashish Bansal that where a notice under Section 153A has been given after the search operations under Section 132, for filing assessment for the block period of 6 years, and if such period includes any of the assessment year, the abatement of assessment and re-assessment proceedings, to give way to reassessment considering the additions in the assessment under Section 153A, will also include the assessment or ressessment, which has been completed. If as a result of search, some undisclosed income is found to have escaped assessment, the Assessing Officer, may initiate steps for reassessment after sanction of competent authority, within the prescribed period of limitation. 17. A Circular No. 7 of 2003 dated 5.9.2003 issued by the Commissioner of Income Tax has clarified the position in para 65.5 as follows: The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses and effect in as much as the abatement of the proceedings, takes away all the consequences that arise thereafter. In the present case after deducting bogus gifts in the regular assessment proceedings, the proceedings for penalty were drawn under Section 271(1)(c) of the Act. The material found in the search may be a ground for notice and assessment under Section 153A of the Act but that would not efface or terminate all the consequence, which has arisen out of the regular assessment or reassessment resulting into the demand or proceedings of penalty. In light of the aforesaid, the question of interference by this Court does not arise. The complaint, which has been filed before the learned Magistrate on 29.09.2016 is in fact in respect of Section 278B of the Income Tax Act, which relates to an offence by the company. In the present case, it is true that a notice was issued under Section 153 of the Act. The petitioner was asked to furnish true and correct particulars of income including the income, which was included by the petitioner in the original return while finalizing the total income, meaning thereby, the return filed in response to the notice under Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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