TMI Blog2020 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Jayaben Ratilal Sorathia [ 2013 (7) TMI 850 - GUJARAT HIGH COURT] wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the AO can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. - Decided against revenue. - R/Tax Appeal No. 195 of 2020 - - - Dated:- 18-9-2020 - Honourable The Chief Justice Mr. Vikram Nath And Honourable Mr. Justice J.B. Pardiwala For the Appellant(s) : Mrs Mauna M Bhatt, Senior Standing Counsel ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. This Tax Appeal under Section 260A of the Income Tax Act, 1961 (for short the Act, 1961 ) is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal, Ahmedabad C Bench dated 17.01.2020 in IT(SS) A No. 108/Ahd/2017 for A.Y. 2009-10. 2. The Revenue proposed the following substantial question of law for the consideration of this Court:- Whether the Appellate Tribunal is right in law and on facts in ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land transactions 6t bad debts of ₹ 94,14,513/- is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regtard to the impugned addition. 2.1 The CIT(A) has grievously erred in law and on facts in confirming the validity of proceedings as well as noticve u/s. 153A dated 19.11.2013 for A.Y. 2009-10, though the conditions precedents were not fulfilled. Therefore, the notice as well as proceedings u/s. 153A(1) were wholly illegally and unlawful in view of no incriminating material found during the course of search for this year. 2.1 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the validity of proceedings as well as notice u/s. 153A dated 19.11.2013 for A.Y.2009-10. 3.1 The Ld.CIT(A) has grievously erred in law and on facs in confirming the addition of ₹ 3,83,40,000/- as unaccounted profit in respect of land transactions with M/s Raj Corporation as unaccounted profit in respect of land transactions. 3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 to 19, which read thus: 15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132Aof the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish thereturn of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is linked with search and requisition under sections 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition.However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur v. Assistant Commissioner of Income Tax(supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state thatthe scope and ambit of the assessment would include any order which the Assessing Officer could have passed under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion of this court, in a case like the present one, where an assessment has been framed earlier and no assessment or reassessment was pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collectedby the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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