TMI Blog2015 (6) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... bring such issue in the assessment completed u/s. 153A r.w.s 143(3) and non-consideration thereof in the assessment order would not make the assessment order passed under section 143(3) r.w.s. 153A as erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee. - ITA No. 1872/MUM/2015 - - - Dated:- 24-6-2015 - I. P. Bansal (Judicial Member) And N. K. Billaiya (Accountant Member) For the Appellant : Vijay Mehta For the Respondent : S. Padmaja ORDER I. P. Bansal (Judicial Member) This is an appeal filed by the assessee and it is directed against order passed by Principal Commissioner of Income Tax, Central-4, Mumbai dated 11/3/2015 for assessment year 2006-07 under the provisions of section 263 of the Income Tax Act, 1961(the Act). Grounds of appeal read as under: Following grounds of appeal are without prejudice to each other: 1. On the facts in the circumstances of the case, the Ld. CIT has erred in facts and in law in holding that the Assessment order u/s. 143(3) r.w.s. 153A of the Income Tax Act, 1961 ( the Act ) is erroneous and has erred in setting aside the said order u/s. 263 of the Act. 2. The Ld. CIT has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by CIT 9. 11-03-2015 Order passed u/s. 263 of the Act. 2.1 It was pointed out that originally the assessment was framed vide order dated 31/12/2008 passed under section 143(3) of the Act, in which no disallowance of the impugned claim which is subject matter of section 263 (claim of addition depreciation on Wind Mill amounting to ₹ 61,33,667/-), was made by the AO. Thereafter, on 6/10/2010 search was conducted in the case of the assessee under section 132 of the Act. In pursuance, search notice under section 153A of the Act was received on 9/4/2012, in response to which return of income was filed on 5/7/2012 and assessment order dated 30/3/2013 was passed under section 143(3) r.w.s. 153A of the Act. In such order also AO did not disallow the additional depreciation on Wind Mill. Subsequent to passing the order, Ld. CIT issued show cause notice dated 2/3/2015 under section 263 on the ground that additional depreciation has wrongly been allowed to the assessee and, therefore, assessment order passed by AO dated 30/3/2013 under the provisions of section 143(3) r.w.s. 153A of the Act was erroneous as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT has made specific reference to decision of Hon ble Karnataka High Court in the case of Canara Housing Development Co.(supra). He submitted that it for this reason Ld. CIT has rejected such contention. 2.4 It was further submitted by Ld. AR that in the latest decision of Hon ble Bombay High Court dated 21/4/2015 in the case of CIT vs. Continental Warehousing Corporation(Nhava Sheva) Ltd. and CIT vs. All Cargo Global Logistics Ltd. in Income Tax Appeal No.523 of 2013 and in Income Tax Appeal No.1969 of 2013 respectively has confirmed the view by following the earlier decision of Mumbai High Court dated 29/10/2010 in the case of CIT, Central, Nagpur vs. Murli Agro Products Ltd. in Income Tax Appeal No.36 of 2009 has held that Division Bench in the case of Murli Agro Product Ltd., does not require reconsideration and it has laid down correct principle of law. Ld. AR while contending so has relied upon para 28 and 37 of the said order, copy of which was placed on our record and was also given to Ld. DR. For the sake of convenience those para are reproduced. 28. In dealing with those arguments, the Division Bench outlined the ambit and scope of the powers conferred by section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalised assessment/reassessment shall not abate. It is only because, the finalised assessments/reassessments do not abate, the appeal revision or rectification pending against finalised assessment/reassessments would not abate. Therefore, the argument of the revenue, that on initiation of proceedings under Section 153A, the assessments/reassessments finalised for the assessment years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153A (1) what stands revived is the pending assessment/reassessment proceedings which stood abated as per section 153A(1). 11) In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for assessment year 1998-99 was finalised on the 29-12- 2000 and search was conducted thereafter on 3-12- 2003. Therefore, in the facts of the present case, initiation of proceedings under Section 153A would not affect the assessment finalised on 29-12-2000. 12) Once it is held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that reference in para-28 and 37 is made by their Lordships to the earlier decision of Hon ble Bombay High Court in the case of CIT vs. Murali Agro Products Ltd.(supra). It was submitted by Ld. AR in view of the aforementioned decision of Hon ble Bombay High Court the assessment order passed by AO under section 143(3) r.w.s. 153A was neither erroneous nor prejudicial to the interest of the Revenue. Therefore, it was pleaded by Ld. AR that section 263 has wrongly been invoked by Ld. CIT and his order should be quashed. 3. On the other hand, Ld CIT-DR relied upon the order passed by Ld. CIT. 4. We have heard both the parties and their contentions have carefully been considered. Relevant portion of the order of Ld. CIT(A) has already been reproduced in which he has dealt with the contention of the assessee that assessment order cannot be considered to be erroneous and prejudicial to the interest of Revenue as AO did not have jurisdiction to the make addition on the impugned issue as the same is not based on seized material. Such contention has been rejected only on the ground that there are conflicting views rendered by various High Courts and the contention of the ..... 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