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TMI Blog2017 (2) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act on 25.09.2007 and assessment was completed accepting the returned income. 2.2 Pursuant to the search on 13.10.2010, notice under section 153A of the Act was issued to the assessee on 04.08.2011 and in response thereto, the assessee filed a return of income for A.Y. 2006-07 on 15.09.2011 declaring the same total income of Rs. 2,51,382/- as was declared in the original return. The Assessing Officer (AO) completed this assessment under section 143(3) r.w.s. 153A of the Act vide order dated 25.03.2013, wherein the income of the assessee was determined at Rs. 38,72,630/- in view of the following additions: - (i) LTCG treated as unexplained cash credit Rs. 34,49,139/- (ii) Bogus commission Rs. 1,72,107/- 3. Aggrieved by the order of assessment dated 25.03.2013 for A.Y. 2006-07 passed under section 143(3) r.w.s. 153A of the Act, the assessee preferred an appeal before the CIT(A)-33, Mumbai. The learned CIT(A) vide the impugned order dated 30.05.2014 allowed the assessee's appeal. The learned CIT(A), following the decision of the Special Bench of the ITAT, Mumbai in the case of All Cargo Global Logistics Ltd. 18 ITR 106 (Mumbai) (SB), held that in the case on hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences while he was overwhelmed, influenced and prejudiced by irrelevant considerations and factors." Revenue's appeal for A.Y. 2006-07 5. Ground No. 1 & 2 - (i) LTCG treated as Bogus & (ii) Commission paid on bogus LTCG 5.1 At the onset, we observe that the averments in two grounds are factually incorrect. In the impugned order, at para 10 thereof the learned CIT(A) has stated that having decided the appeal on the validity of the additions made by the AO; as being beyond the scope of his powers as per the provisions of section 153A of the Act, she is not adjudicating the other grounds 2 and 3 raised on the merits of these additions. 6. Ground No. 3 - Validity of the additions made in the assessment order under section 143(3) r.w.s. 153A 6.1 We have heard the rival submissions of the learned D.R. for Revenue and the learned A.R. of the assessee and perused and carefully considered the material on record; including the judicial pronouncements cited. 6.2 The learned D.R. placed strong reliance on the order of the Assessing Officer as being in order on this issue. 6.3.1 The learned A.R. of the assessee reiterated the submissions made in this regard before the learned CIT(A), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the transactions are disclosed in the regular books of account prior to search and no incriminating documents have been found as a result and as such this issue is beyond the scope of the assessment to be made under s. 153A. Section 153A provides that where a search is initiated under s. 132 the AO shall "assessee or reassess the total income of six assessment. years immediately preceding the assessment year" relevant to the previous year in which. the search is conducted or requisition is made. The 1st Proviso states that the AO shall "assess or reassess the total income in respect of each assessment year falling within such six assessment years" while the 2nd Proviso states that the assessment or reassessment relating to the said six assessment years "pending" on the date of initiation of the search under 132 shall "abate". In the assessee's case, search action was initiated and assessment under s.153A were framed for six assessment years making various additions. The additions were not tenable as regular returns had been filed where the particulars relating to the additions had been disclosed and the same had been accepted u/s. 143(1) or 143(3) and also that no material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to avoid two assessments for the same year. Therefore, proper construction would be that in respect of completed assessments, the assessment shall be made only if incriminating documents etc. are found. Therefore, the term assess and reassess appearing in section 153A(1)(b) means that assessment shall be made in case of pending assessments and reassessments shall be made in respect of completed assessments where incriminating material is found." 6.3.2 The learned A.R. placed reliance on the following judicial pronouncements in support of the arguments put forth: - (i) All Cargo Global Logistics Ltd. vs. DCIT (137 ITD 287) (SB-ITATMumbai). (ii) CIT vs. Anilkumar Bhatia [24 taxmann.com 98 (Del)] 6.3.3 On an appreciation of the facts of the case on hand, the submission/ contentions put forth by both parties, the orders of the authorities below and judicial pronouncements cited, it is not disputed that the issue on which the AO made addition in the post search order of assessment passed under section 143(3) r.w.s 153A of the Act for A.Y. 2006-07, i.e. LTCG treated as bogus cash credit - Rs. 34,49,139/-, has already been accepted by the AO in the regular order of assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 153A. Section 153A provides that where a search is initiated under s. 132 the Assessing Officer shall "assess or reassess the total income of six assessment years immediately preceding the assessment year" relevant to the previous year in which the search is conducted or requisition is made. The 1st Proviso states that the Assessing Officer shall "assess or reassess the total income in respect of each assessment year falling within such six assessment years" while the 2nd Proviso states that the assessment or reassessment relating to the said six assessment years "pending" on the date of initiation of the search under 132 shall "abate". While under the 1st Proviso, the Assessing Officer is empowered to frame assessment for six years, under the 2nd Proviso, only the assessments which are pending on the date of initiation of search abate. The effect is 'that completed assessments do not abate. In the instant case the return had been processed under s. 143(1); no proceedings were "pending" on the date of search; the time to issue notice under s. 143(2) had expired and no material was found during the search as regards the addition made with regard to the impugned transaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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