9911796707
TMI Blog2018 (12) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... y undisclosed income in the hands of the appellant, there was no valid jurisdiction for legally initiating proceedings u/s. 153A of the Act in the case of the appellant and as such the illegal notice issued u/s. 153A and the consequent order passed are liable to be quashed/annulled or cancelled. 2. Without prejudice to the above, on the facts and in the circumstances of the case as well as in law, the impugned assessment order so passed by the Assessing Officer is liable to be quashed having been passed in violation of set procedure in law inasmuch as that no regular assessment for the year under consideration was pending within the meaning of 2nd proviso to section 153A (1) of the Act. 3. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and sustaining impugned addition of Rs. 17,48,083/- on account of dividend income from Srilankan Company, when the same is wholly unwarranted. 4. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing concessional rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in rejecting the contention of the appellant and not allowing concessional rate of tax u/s. 115BBD of the Act on the dividend received from Srilankan company when the same is legally available in the case of the appellant. 6. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing credit of tax paid in Srilanka on dividend under foreign tax credit system of DTAA, when she ought to have allowed such relief." 4. In ITA No.81/Ahd/2018 for A.Y. 2010-11 the Grounds of appeal are as follows: 1. On the facts and in the circumstances of the case as well as in law the assessment order passed by the A.O. is arbitrary, illegal and bad in law in as much as that in absence of any evidence or incriminating material found and seized, for the assessment year under consideration having bearing upon the existence of any undisclosed income in the hands of the appellant, there was no valid jurisdiction for legally initiating proceedings u/s. 153A of the Act in the case of the appellant and as such the illegal notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding within the meaning of 2nd proviso to section 153A (1) of the Act. 3. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and sustaining impugned addition of Rs. 18,28,711/- on account of unaccounted investment in shares, when the same is wholly unwarranted. 4. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing concessional rate of tax u/s. 115BBD of the Act on the dividend received from Srilankan company when the same is legally available in the case of the appellant. 5. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing credit of tax paid in Srilanka on dividend 6. In ITA No.83/Ahd/2018 for A.Y. 2012-13 the Grounds of appeal are as follows: "1. On the facts and in the circumstances of the case as well as in law the assessment order passed by the A.O. is arbitrary, illegal and bad in law in as much as that in absence of any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny evidence or incriminating material found and seized, for the assessment year under consideration having bearing upon the existence of any undisclosed income in the hands of the appellant, there was no valid jurisdiction for legally initiating proceedings u/s. 153A of the Act, in the case of the appellant and as such the notice issued u/s. 153A and the invalid order passed are liable to be quashed/annulled or cancelled. 2. Without prejudice to the above, on the facts and in the circumstances of the case as well as in law, the impugned assessment order so passed by the Assessing Officer is liable to be quashed having been passed in violation of set procedure in law inasmuch that firstly a notice u/s. 153A was issued on 21/10/2013, secondly a notice u/s. 143(2) was issued on 16/12/2013 referring to ROI filed on 09/12/2013, thirdly a notice u/s. 143(2) was issued on 08/09/2014 referring to ROI filed on 29/09/2013, fourthly in supersession of the earlier notice a notice u/s. 143(2) was issued on 11/09/2014 referring to ROI filed on 09/12/2013 & the assessment order was framed on 23/12/2016 u/s. 153A r.w.s 143(3) of the Act, rendering the impugned order barred by limitation u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act in the Rubamin Group of cases on 26.04.2013 which also includes the premises of assessee. As a result of the search the six assessment years of the assessee were re-opened. 11.1 The details of notices issued by the Revenue and returns filed by the assessee are as under: Assessment year Date of original return of filing Last date to issue notice u/s 143(2) Date of issuance of notice u/s 153A(a) Date of return filing in response tonotice 153A(a) u/s 2008-09 29/09/2008 30/09/2009 21/10/2013 09/12/2013 2009-10 24/09/2009 30/09/2010 21/10/2013 09/12/2013 2010-11 25/09/2010 30/09/2011 21/10/2013 09/12/2013 2011-12 28/09/2011 30/09/2012 21/10/2013 09/12/2013 2012-13 15/09/2012 30/09/2013 21/10/2013 09/12/2013 2013-14 29/09/2013 30/09/2014 21/10/2013 09/12/2013 11.2 It is evident from the above table that on the date of search, i.e., 26/04/2013, first four assessment years, i.e., 2008-09 to 2011-12 became unabated. However, the time limit for the issuance of notice under section 143(2) in respect to the assessment year 2012-13, & 2013-14 was not expired at the time of the search. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , analyzed the facts and circumstances of the case and heard the rival contentions. We find that the legal issue questioning the validity of the Section 153A assessment and additions made thereon, in respect of all the assessment years in the absence of incriminating materials was raised for the first time before this Tribunal. 16.1 We find that the legal grounds raised by the assessee go into the very crux of the matter and does not involve any fresh investigation of facts. Hence we deem it fit and proper to admit the same even though the lower authorities have not appreciated in totality. Reliance in this regard is placed in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC). 16.2 We find that it would be necessary to address the preliminary issue, whether assessment could be framed u/s 153A of the Act in respect of concluded proceeding without the existence of any incriminating materials found during the course of the search. The scheme of the Act provides for abatement of pending proceedings as on date of search. It is not in dispute that the assessment for the assessment year from 2008-09 to 2011-12 falls under the ambit of unabated asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 18. We also find that the Hon'ble Jurisdictional Gujarat High Court in the case of Principal Commissioner of Income Tax vs. M/s. Saumya Construction Pvt. Ltd. reported in 387 ITR 529 has decided the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total income by considering all the aspects, wherein the existence of incriminating materials do not have any relevance. However, in respect of unabated assessments, the legislature has conferred powers on the ld. AO to follow the assessments already concluded unless incriminating materials are found in the course of the search. 19.1 That for the reasons stated above and on the basis of various judicial pronouncements, we hold that the disallowances made for the Assessment years i.e. 2008-09, 2009-10, 2010-11 & 2011-12, which were unabated/concluded assessments as on date of search cannot be made in the search assessments in the absence of any incriminating material found in the course of search and accordingly all those additions are directed to be deleted. Since the legal issues are addressed, we refrain from giving our findings on the merits of disallowances under the provisions of the Act. Accordingly, grounds raised by the assessee for Assessment Years i.e. 2008-09, 2009-10, 2010-11 & 2011-12, are allowed. 20. Coming to the ITA No. 83/AHD/2018 21. At the outset, the learned counsel for the assessee submitted that he had been instructed not to press gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, i.e. in next financial year (2012-13) as evident from the warrant placed on page 78 of the paper book. The relevant extract reads as under: NAVAM LANKA LIMITED PLOT 27 VV MEPZ. MIRIGAMA EXPORT PROCESSING ZONE. MIRIGAMA, GAMPAHA Mrs. Asha Mital, 126, Shakti Nagar- -9,Rajasthan, Local : Plot No. 27 A ' MEPZ, Mirigama Process Export Processing Zone Mirigama Date 27/09/2012 Warrant No. 25I12TS002773 Shares 78.403 Dear Sir/Madam, FINAL-DIVIDEND OF RS.55 PER SHARE FOR THE YEAR ENDED 31st (MARCH 2012 We have pleasure in forwarding a warrant for the above dividend issue on the Ordinary Shares held by you as shown below. Please ensure that you retain this notice carefully for your income tax purposes as duplicates cannot be Issued. Endorsement of the warrant will be sufficient receipt. We hereby certify that Dividend tax shown .in cage 2 (B) has been paid to the Commissioner General of Inland Revenue. Note: Net dividend is the equivalent of (A)- (B) NAVAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 24. In view of the above, we are of the view that addition made on account of dividend income for the year under consideration is on without any basis and documentary evidence. 24.1 Once we have held that the assessee has not received any dividend income in the year under consideration, the other grounds of appeal raised by the assessee become academic and do not require any separate adjudication. Accordingly, we direct the AO to delete the addition. Hence the ground of appeal of the assessee is allowed. 25. In the result the appeal of the assessee is partly allowed. 26. Now coming to the ITA No. 84/AHD/2018 for the assessment year 2013-14. At the outset, the learned counsel for the assessee submitted that he had been instructed not to press ground No. 1 and 3. Therefore we dismiss the same as not pressed. The ground No. 2 raised in the original grounds of appeal has been substituted as discussed above which bears the resemblance with the original grounds of appeal raised by the assessee. As such we find that the issue raised in the amended ground of appeal is arising from the order of authorities below and there is no need to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
