TMI Blog2021 (7) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... C1T (Appeals) on 26 th April 2013 but CIT (Appeals) has passed an Ex- Parte order by confirming the demand of Ld. A. O. on 02.02.2017 without taking into consideration the reasons due to which the appellant could not provide the necessary documents and evidence and could not attend the hearings before the CIT (Appeals). Some of the reasons are provided below:- (a) That Mr. Abhieshek Tewari, Appellant was himself suffering from various illnesses and had also been fractured in body of right scapula and his elder brother Mr. Anand Tiwari of the suffering from a chronic liver disease for the past 5 -6 years. On account of his severe illness he has been admitted/ treated in various hospitals in India as well as abroad on innumerable occasions and has been bed- ridden for most of the time during these years. (b) That Mr. Abhieshek Tewari, appellant was himself suffering from various illnesses and had also been incarcerated during the relevant time. Due to financial crisis, the company had started making defaults in paying installments to various banks and also in fulfilling other financial obligation. Consequently, the banks had filed false frivolous complaints with the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits instead of being thrown out on account of non representation. (h) The appellant did everything within its power by engaging professionals to represent it before the respondent but the said professionals failed to perform their duty by not advising the company in the matter and by not representing it in bona- fide manner. (i) That the appellant sought a number of adjournments and tried to present its case. (j) That due to lack of funds and non availability of documents as explained above, the company, inspite of taking many adjournments, was not able to defend its case before CIT (Appeals). (k) That no reasonable opportunity was provided to the Company to present its case and to justify the grounds for quashing the impugned order of the learned A.O. (l) That the impugned order, confirming the order of A.O., was passed by the CIT (Appeals) without considering the grounds provided by the appellant or the documents or evidences to be provided on part of the Company and the order was passed ex parte. (m) That the appellant has valid grounds and will be able to establish that the impugned order passed by the learned A.O. was bad in law and was based onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 19.12.2006 ₹ 18,25,675 3. 2007-08 21.10.2007 ₹ 27,64,972 4. 2008-09 21.10.2008 ₹ 34,93,607 5. 2009-10 06.02.2010 ₹ 59,35,868 5. Later on, a search and seizure operation was carried u/ s 132 on 11.03.2011 on M/s Century Communication Group (M/s Mahuaa Media Group) and accordingly, a notice u/ s 153 A was issued. At the time of search the assessment for the assessment years 2005-06, 2006-07, 2007-08, 2009-10 and 2010-11 respectively has attained finality and accordingly in terms of second proviso to section 153A such an assessment is to be treated as unabated and without any reference to any seized material or incriminating evidence found during the course of search. In the impugned proceedings, we find that the additions made by the Assessing Officer are not based on any material found and seized during the course of search and seizure action. The fact of which has not been disputed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search, albeit it is based on the assessment record only. 11. In such a situation, additions made are beyond the scope of 153A proceedings. This proposition of law has been well settled and reiterated by the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla reported in [2016] 380 ITR 573 (Delhi) and has been reiterated in the case of Pr. CIT vs. Meeta Gutgutia reported in [2017] 152 DTR 153 (Delhi). 12. In the case of CIT vs. Kabul Chawla (supra), the Hon' ble High Court, after discussing various judgments and analyzing section 153 A, have laid down the following legal proposition: i. Once a search takes place under Section 132 of the Act, notice under Section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 153 A of the Act is titled Assessment in case of search or requisition . It is connected to Section 132 which deals with ' search and seizure'. Both these provisions, therefore, have to be read together. Section 153A is indeed an extremely potent power which enables the Revenue to reopen at least six years of assessments earlier to the year of search. It is not to be exercised lightly. It is only if during the course of search under Section 132 incriminating material justifying the re-opening of the assessments for six previous years is found that the invocation of Section 153A qua each of the AYs would be justified. 57. The question whether unearthing of incriminating material relating to any one of the AYs could justify the reopening of the assessment for all the earlier AYs was considered both in Anil Kumar Bhatia (supra) and Chetan Das Lachman Das (supra). Incidentally, both these decisions were discussed threadbare in the decision of this Court in Kabul Chawla {supra). As far as Anil Kumar Bhatia (supra) was concerned, the Court in paragraph 24 of that decision noted that we are not concerned with a case where no incriminating material was found durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), the Court referred to the decision of the Rajasthan High Court in Jai Steel (India) v. Assn. CIT [2013] 36 taxmann.com 523 /219 Taxman 223. The said part of the decision in Kabul Chawla (supra) in paras 33 and 34 reads as under: 33. The decision of the Rajasthan High Court in Jai Steel (India), Jodhpur v. A CIT (supra) involved a case where certain books of accounts and other documents that had not been produced in the course of original assessment were found in the course of search. It was held where undisclosed income or undisclosed property has been found as a consequence of the search, the same would also be taken into consideration while computing the total income under Section 153 A of the Act. 18. The Court then explained as under: 22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132 A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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