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TMI Blog2018 (5) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2003-04. Since both the appeals involved identical issues, they were heard together and they are being disposed of through this common order for the sake of convenience. 2. The brief facts of the case are that for assessment year 2003- 04, the return of income was filed declaring an income of Rs. 54,15,681/-. The return of income was filed on 21.11.2003. There was a search and seizure operation in the case of the assessee on 01.06.2006 persuant to which notice u/s 153A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") was issued. During the course of assessment proceedings the assessee was asked to file details with regard to the loan received from M/s. KVF Securities Pvt. Ltd. and the assessment was completed vide o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. and interest thereon amounting to Rs. 15,534/-. 2.4 Aggrieved by the re-assessment order passed u/s 147/143(3) of the Act, the assessee filed an appeal before the Ld. CIT (A) which was dismissed by the Ld. CIT (A) vide order dated 15.07.2013 against which the assessee has now approached the ITAT. 2.5 In assessment year 2004-05 the dispute is regarding an amount of Rs. 1,03,936/- which pertains to interest paid on loan received from M/s. K.V.F. Securities Pvt. Ltd amounting to Rs. 12,00,000/- and added to the income of the assessee in assessment year 2003-04 as mentioned in the preceding paragraphs. This addition was also upheld by the Ld. CIT (A) and against this also the assessee is before the ITAT challenging this addition also. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the reassessment order the earlier proceedings u/s 153A of the Act, which were restored to the file of the Ld. CIT (A) by the ITAT, were still pending before the Ld. CIT (A) and was on similar issue. It was submitted that it is a settled legal position that two parallel proceedings on the same subject matter cannot be sustained. Our attention was also drawn to Para 9 of the ITAT's order for assessment year 2003-04 in ITA No. 2676/Del/2010 wherein, vide order dated 08.08.2013, ITAT had restored the issue to the file of the Ld. CIT(A) for re-adjudication on the issue de novo . The Ld. Authorized Representative submitted that in Para 9, the ITAT has observed that as per statutory scheme of provisions of the Act during the pendency of procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appeals that since the parallel proceedings u/s 153A/ 153C and u/s 148 are not permitted any undisclosed income which meets the tests of Section 147/148 (that is excluding routine and legal addition) has to be made u/s 153A/153C only, as Section 153A starts with non obstante clause "Notwithstanding anything contained in Section 139, 147, 148 ........". 3. It was in the above background that a request for constitution of a Special Bench was made in several cases including the present appeals for the following question of law: "Whether the AO can issue a notice u/s 148 in respect of escapement of income, during the pendency of proceedings u/s 153A/153C, which comes to his knowledge from a source other than the evidence found during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowered to issue notice u/s 147/148" and therefore remitted the matter back to the CIT(A) for decision on merits vide order dated 08.08.2013." 7. The decisions under dispute in orders u/s 153A may fall in three categories: a. Additions related to the evidence found during the search. b. Additions on the basis of information received from any source other than search which meets the tests of Section 147/ 148. c. Other additions 8. None of the decisions except the decision in the case of Parag Dalmia has dealt with the additions of the nature falling in category 'b'. The Revenue on merits had also relied on the decision in the case of Mukundray K.Shah reported at 290 ITR 433 in the case of Parag Dalmia (supra)." 9. The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject matter. In the case of Nilofer Hameed vs. ITO reported in 235 ITR 161 (Kerala) the Hon'ble Kerala High Court after referring to a number of judgments of other Hon'ble High Courts held, "if an assessment is pending either by way of original assessment or by way of re-assessment proceedings, the assessing officer cannot issue a notice u/s 148 but if no proceedings are pending either by way of original assessment or by way of re-assessment, he can issue a notice u/s 148 within the time mentioned." This judgment of the Hon'ble Kerala High Court was also followed by the Hon'ble Delhi High Court in the case of CIT vs. Sanjay Kumar Garg in ITA Nos. 92 to 96/2012 vide order dated 02.09.2015. A similar view has been taken by the Hon'ble Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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