TMI Blog2019 (11) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... y all those additions are directed to be deleted. Since the legal issues are addressed, we refrain to give our findings on merits of additions under the provisions of the Act. Accordingly, the grounds raised by the assessee for Assessment Years 2006-07, 2007-08, 2008-09 and 2009-10 are allowed. - ITA Nos. 4635-4637 & 4641/MUM/2017 - - - Dated:- 6-11-2019 - Shri Waseem Ahmed, Accountant Member And Shri Ramlal Negi, Judicial Member For the Assessee : Shri M.M. Golvala, A.R For the Revenue : Lakshmi Vara Prasad Gode, CIT.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeals have been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-54, Mumbai dated 21/03/2017, (in short Ld.CIT(A) ) arising in the matter of assessment order passed under s. 143(3) r.w.s. 153A of the Income Tax Act, 1961 (here-in-after referred to as the Act ) dt. 07/03/2014 relevant to the Assessment Years ( 2006-2007 to 2009-2010). Since, common issues are arising in all the appeals and facts being identical, we dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income Tax (Appeals) erred in upholding the jurisdiction of the Assessing Officer to make an addition on the basis of an offer made by the appellant during assessment, ignoring the fact that appellant made a conditional offer, which was not accepted by the Assessing Officer. 4. Without prejudice the learned Commissioner of Income Tax (Appeals) erred in directing the Assessing Officer to adopt the ALV of property at Lonavala at ₹ 60,000/- and that of flat in building called Kalpana at ₹ 41,000/-. The appellant submits the ALV adopted is excessive and arbitrary. 5. The appellant submits the Assessing Officer be directed to adopt the rateable value fixed by the Municipal Corporation as the Annual Letting Value. The Appellant craves leave to add to, amend, alter modify or withdraw any or all the Grounds of Appeal before or at the time of hearing of the Appeal, as they may be advised from time to time, 4. In ITA No. 4636/MUM/2017 for A.Y. 2008-09 the Grounds of appeal are as follows: 1. The learned Commissioner of Income Tax(Appeals) erred in upholding the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. Without prejudice the learned Commissioner of Income Tax (Appeals) erred in directing the Assessing Officer to adopt the ALV of flat in building called Kalpana at ₹ 41,000/-. The appellant submits the ALV adopted is excessive and arbitrary. 5. The appellant submits the Assessing Officer be directed to adopt the rateable value fixed by the Municipal Corporation as the Annual Letting Value. The Appellant craves leave to add to, amend, alter modify or withdraw any or all the Grounds of Appeal before or at the time of hearing of the Appeal, as they may be advised from time to time, 6. The preliminary issue to be decided in all these appeals is as to whether in respect of unabated assessments (no pending proceedings) as on the date of search, the AO could frame the search assessment u/s 153A of the Act by making certain additions without any incriminating materials found during the course of search. 7. The brief facts appearing in this case are that there was a search and seizure operation conducted u/s 132(1) of the Act at J.M. Baxi co., a partnership firm dated 20-03-2012 in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-09 23(1) ₹ 1,05,000/- -On account of deemed rent 4 2009-10 23(1) ₹ 45,000/- -On account of deemed rent 9.1 The Ld. AR accordingly argued in respect of assessment years 2006- 07, 2007-08, 2008-09 2009-10 being unabated assessments, the Ld. AO has made the addition, for which absolutely no incriminating materials were found during the course of the search. Hence he prayed for deletion of disallowance made for assessment years 2006-07, 2007-08, 2008-09 2009- 10. He placed reliance on the decisions of the Hon ble Bombay High Court in the case of CIT vs. Continental warehousing corporation (Nhava Shiva) Ltd. and All Cargo Global Logistics ltd. reported in 374 ITR 645. 9.2 The ld. AR also argued that the fact that there was no incriminating document found during the search was also admitted by the ld. CIT-A in his order. However, he(CIT(A)) made the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced below: Once it is held that the assessment has attained finality, then the Assessing Officer while passing the independent assessment order under section 153A read with section 143 (3) could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under section 153A establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of 153A proceedings. If there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceedings, the Assessing Officer while passing order under section 153A read with section 143(3) cannot disturb the assessment order 11.2 We also place reliance on the judgment of Hon ble Bombay High Court in the case of CIT vs. Gurinder Singh Bawa reported in 79 taxmann.com 398 wherein it was held as under: 7. In view of the above, on issue of jurisdiction itself the issue stands concluded against the revenue by the decision of this Court in Continental Warehousing Corpn. (Nhava Sheva) Ltd. (supra). In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982] 136 ITR 355(Bom.). 32. If particular levy is not permitted under the Act, tax cannot be levied applying the doctrine of estoppel. (See Dy. CST v. Sreeni Printers [1987] 67 SCC 279. 33. This Court in the case of Nirmala L. Mehta v. A. Balasubramaniam, CIT [2004] 269 ITR 1 has held that there cannot be any estoppel against the statute. Article 265 of the Constitution of India in unmistakable terms provides that no tax shall be levied or collected except by authority of law. Acquiescence cannot take away from a party the relief that he is entitled to where the tax is levied or collected without authority of law. In the case on hand, it was obligatory on the part of the Assessing Officer to apply his mind to the facts disclosed in the return and assess the assessee keeping in mind the law holding the field. 11.5 That for the reasons stated above and on basis of various judicial pronouncements, we hold that the addition made for the Assessment years i.e. 2006-07, 2007-08, 2008-09 2008-09, which were unabated/concluded assessments as on date of search cannot be made in the search assessments in the absence of any incriminat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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