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TMI Blog2022 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... order dt.21.12.2014 and issue u/s.263 could not be the matter u/s.143(3) read with 153A. 3. That the order u/s.263 is vitiated in law in as much as there is no payment effected in Asst. year 2014-15 and full payment was effected in Asst. Year 2012-13 itself when the provision of section 56(2)(vii)(b) were not applicable. 4. That the order u/s.263 dt.27.09.2018 is further vitiated in law as on the order u/s.263 on the basis of which demand is raised against the assessee on 20.06.2018 as per E portal of Dept. was already passed. Assessee applied for copy of which is yet to be received as this 263 order is not serve3d on assessee- Appellant. 5. That in any case the order u/s.263 is liable to be cancelled." 2. Succinctly stated, search and seizure proceedings were conducted u/s 132 of the Act at the office premises of Rander Group of cases on 12.02.2015 and the assessee was therein covered. In compliance to notice u/s 153A of the Act, dated 31.08.2015, the assessee e-filed his return of income for the assessment year 2014-15 on 03.07.2016, declaring a total income of Rs. 8,77,340/-. Subsequently assessment was framed by the Assessing Officer vide his order passed u/s.153A r.w.s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated by the Ld. Authorized Representative (for short 'AR'), no incriminating material pertaining to the assessee were found during the course of the search proceedings. Backed by the aforesaid facts, it is the claim of the Ld. AR, that as on the date of initiation of the search proceedings u/s 132 of the Act, i.e, on 12.02.2015, no assessment or re-assessment relating to the assessment year in question, i.e, AY 2014-15 was pending, therefore, it was a case of an unabated assessment in the case of the assessee before us. It was the claim of the Ld. AR that as no incriminating material in the course of the search proceedings relating to the assessee was found, therefore, the Assessing Officer considering the fact that the assessment in the case of the assessee for the year under consideration was unabated on the date of search, thus, remaining well within the realm of his jurisdiction had not made any addition. It was claimed by the Ld. AR that now when the Assessing Officer in the absence of any incriminating material relating to the assessee could not have made any addition as regards the unabated assessment of the assessee for the year under consideration, therefore, the Pr. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Continental Warehousing Corporation (Nhava Sheva) Ltd., ITA No.523 of 2013, dated 21.04.2015. In the aforesaid case following substantial questions of law were, inter alia, raised for consideration of the Hon'ble High Court: "(i) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is correct in narrowing down the scope of assessment u/s 153A in respect of completed assessments by holding that only undisclosed income and undisclosed assets detected during search could be brought to tax ? (ii) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is correct in law in holding that the scope of Section 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income, that comes to the notice of the AO ? (iii) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in limiting the scope of Section 153A only to undisclosed income when as per the section the AO has to assess the total income of the six assessment years?" After relying on its earlier order passed in the case of Commissioner of Income Tax (Central) Nagpur vs. M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Further, proviso to this sub-section says that such SRP 13/61 ITXA523.13.doc revival shall cease to have effect if the order of annulment is set aside. 18. Mr. Dastur would submit that the Revenue is protected completely in this case. The power is of drastic nature and has to be exercised within constitutional parameters. However, though the second proviso to sub-section (1) of section 153A would not apply in the first three years of this case, yet, as far as the second three year period is concerned, the assessments were pending. The proceedings in relation thereto abate. Now the entire assessment in relation to the second phase of three years can be made but the foundation for all this and the action under section 153A is a search under section 132 or requisition of books of account and other assets under section 132A.In the present case, the notice under section 153A is founded on search. If there is no incriminating material found during the search, then, the Special Bench was right in holding that the power un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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