TMI Blog2017 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... owards any income in the absence of seized materials for the assessment years which are concluded as on the date of search. Accordingly, we direct the A.O. to delete additions made for the assessment year 2003-04, 2004-05 & 2006-07. Additions towards cash found during the course of search for the assessment year 2009-10 we find force in the arguments of the assessee for the reason that the assessee has filed necessary evidences in the form of the confirmation letter from the debtor who has confirmed repayment of advance of Rs. 7 lakhs. We further observed that the debtor Shri P.N. Raju has given the deposition before the A.O., wherein he has confirmed that he has repaid the advance. The A.O. made additions by stating that the assessee has failed to prove the genuineness of transactions and creditworthiness of the debtor. We find no merits in the findings of the A.O., for the reason that once the debtor repaid the amount in the capacity as debtor to the assessee, the necessity of proving the creditworthiness, identity and genuineness is not on the assessee as it is only amount received back out of advance made in the earlier period and shown in the return. The CIT(A) without app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A of the Act, on 30.12.2010. In the assessment, the A.O. has made additions towards cash deposits in various bank accounts, unexplained loans and advances and unexplained credits in capital account. 4. Aggrieved by the assessment orders, the assessee preferred an appeal before the CIT(A). Before the CIT(A), the assessee has challenged the initiation of proceedings u/s 153A of the Act. The assessee also challenged various additions made by the A.O. The CIT(A) after considering the explanations of the assessee, rejected the claim of the assessee with regard to validity of search proceedings, however, for a detailed discussion in his order dated 17.7.2013, partly allowed appeal filed by the assessee for the assessment year 2003-04 to 2009-10. Aggrieved by the CIT(A) order, the assessee is in appeal before us. 5. The assessee has filed common grounds for all the four assessment years. From these grounds of appeal, the assessee has challenged validity of search proceedings and consequent assessment proceedings u/s 153A of the Act, on the ground that the warrant is issued in the name of one Shri G. Manoj Kumar, whereas the proceedings are initiated in the name of the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal ground raised by the assessee and dispose off the appeal. 8. During the course of hearing, the Ld. A.R. for the assessee submitted that he did not press the legal grounds raised, challenging validity of search proceedings and consequent assessment proceedings u/s 153A of the Act, for all the four assessment years. We therefore, dismiss legal ground raised by the assessee, challenging validity of assessment as not pressed for all the assessment years. Thus, effective grounds remains for our adjudication are (1) additional ground raised by the assessee, challenging the validity of additions made by the A.O. in the concluded assessments for the assessment year 2003-04 to assessment year 2006-07 on the ground that there is no incriminating material, as such the A.O. cannot make additions in the assessment u/s 143(3) r.w.s. 153A of the Act. (2) Challenging the additions sustained by the CIT(A) in respect of unexplained cash deposits in bank account, unexplained credits in capital account and unexplained loans and advances. 9. The first issue that came up for our consideration is whether on the facts and in the circumstances of the case, the A.O. is right in making additions to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -opened, the assessing authority can take note of the income disclosed in the earlier return, any undisclosed income found during the search or and also any other income, which is not disclosed in the earlier return or which is not unearthed during the search, in order to find out what is the total income of each year and then pass the assessment order. Therefore, there is no merits in the contention of the assessee that the A.O. is having no jurisdiction to make additions in the concluded assessments. In support of his arguments, relied upon the decision of Hon ble A.P. High Court in the case of Gopal Lal Vs. DCIT (2012) 346 ITR 106 and CIT Vs. Smt. Godavari Devi Saraf (1978) 113 ITR 589. 11. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. The only issue that arises for our consideration is whether on the facts and in the circumstances of the case, the A.O. is right in making additions, in respect of assessment year for which the assessment proceedings has been concluded as on the date of search, in the absence of incriminating materials. The Ld. A.R. for the assessee, submitted that the issue has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment had already been reached a finality, such assessment could not be made u/s 153A of the Act unless there was seized materials. 20. The A.O. has passed reassessment orders u/s 153A/153C of the Act for all the six assessment years immediately preceding the year in which search was conducted. According to the A.O., as per the provisions of section 153A of the Act, there is no limitation or restriction provided in the new procedure of search assessments on the powers of A.O. for making assessment/reassessment and the A.O. is not required to confine his assessments on the material found during the course of search as was the case in the old procedure of block assessments. The new procedure of block assessment was explained by way of provisions of section 153A of the Act. As per section 153A of the Act, the A.O. shall assess or reassess the total income of the specified six assessment years irrespective of the fact that the assessment of the said years were completed or pending as on the date of search. Therefore, the A.O. has reassessed the income of six assessment years and recomputed the profits afresh after considering the relevant facts available on record. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The time limit for issue of notice u/s 143(2) of the Act has been expired. On further verification of the documents available on record, we find that there was no incriminating documents found during the course of search in respect of assessment year 2004-05 to 2007-08. Therefore, we are of the opinion that the A.O. was not correct in reassessing the total income of the assessment year 2004-05 to 2007-08 in the absence of any seized materials. Accordingly, we direct the A.O. to delete the additions made for the assessment year 2004-05, 2005-06 2007-08. 23. It is pertinent to discuss herein the case laws relied upon by the assessee. The assessee has relied upon the ITAT, special bench decision in the case of All Cargo Global Logistics Ltd. Vs. DCIT (2012) 137 ITD 287. The coordinate bench of this Tribunal, while deciding the issue in favour of the assessee held as under: In assessments that are abated, the AO aretains the original jurisdiction as well as jurisdiction conferred on him u/s 153A for which assessments shall be made for each of the six assessment years separately. In other cases, in addition to the income that has already been assessed, the assessment u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in the case of concluded assessments on the basis of incriminating materials is also based upon the decision rendered by Honble supreme Court in the case of Parashuram Pottery works Co. Ltd (supra). 23. We have earlier noticed that the Hon'ble jurisdictional Andhra Pradesh High Court has also upheld by the orders passed by the Tribunal by following the decision rendered by the Special bench in the case of All Cargo Global logistics Ltd (supra) in the following cases:- (a) Sree Lalitha Constructions (J1TA No 368 of 2014) (b) M/s. Hyderabad House Pvt Ltd (ITTA No.266 of 2013) (c)M/s. AMR India ltd (FITA No.357 /v/2014) Further we agree with the contentions of the assessee that the decision rendered by the jurisdictional High Court in the case of Gopal Das Bhadruka (supra) have been rendered on the facts prevailing in those cases, since the issue relating to concluded assessments and pending assessments was not before the I1on'ble Andhra Pradesh High Court On the contrary, the above said three decisions of the jurisdictional High Court comes to the support of the assessee's contentions with regard to the legal proposition agitated before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The time limit for issue of notice under sec. 143(2) has been expired. Therefore, the A.O. has no jurisdiction to reassess the income for the assessment year 2004-05 to 2007-08 in the absence of any incriminating materials. Hence, we delete the additions made by the A.O. for the assessment year 2004-05, 2005-06 2007-08. Accordingly, the ground raised by the assessee is allowed. 12. In this case, the assessment for the assessment year 2003-04, 2004-05 2006-07 are already concluded and there is no proceedings pending for those assessment years. The time limit for issue of notice u/s 143(2) of the Act has been expired. The A.O. has made additions towards unexplained cash deposits found in the bank account, unexplained loans and advances and unexplained credits in capital account without any incriminating materials. Therefore, we are of the view that the A.O. has no jurisdiction to make additions for the assessment years 2003-04, 2004-05 2006-07 in the absence of any incriminating materials. In this case, the A.O. has made additions towards unexplained cash credits, unexplained advances and unexplained credits in capital accounts based on the books of accounts which were a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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