9911796707
TMI Blog2017 (7) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... ennai 35 on 15.5.2012 as evidenced by the warrant issued in the assessee's case. Subsequently, notice under section 153A of the Act was issued on 15.03.2013 for all the above assessment years In response to notice under section 153(A) of the Act, the assessee filed its return of income for the assessment year 2007-08 admitting "NIL" income on 16.04.2013. For the assessment year 2008-09, vide letter dated 16.04.2013, the assessee has stated that the original return filed on 30.09.2008 admitting total loss of Rs..(-)22,85,402/- may please be treated as return of income filed in response to the notice under section 153A of the Act. For the assessment year 2010-11, vide letter dated 15.04.2013, the assessee has stated that the original return filed on 15.10.2010 admitting total loss of Rs..(-)24,90,980/- may please be treated as return of income filed in response to the notice under section 153A of the Act. Thereafter, notice under section 143(2) dated 01.08.2014 and notice under section 142(1) of the Act dated 10.11.2014 were issued and served on the assessee. After considering the details filed by the assessee, the assessment was completed by assessing total income of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observing as under: "5. I have gone through the assessment orders, the grounds raised, written submissions made by AR and materials available on record. As can be seen from the assessment orders for all the AYs in appeal the AO made an addition towards unsecured loan alleged to have been obtained from one of the directors of the appellant company. The AO's observation, more or less, common for all the AYs, is as under: "In this AY the assessee received Rs .... as unsecured loan from one of the directors Mr.Surali Narayan Swami. In this regard vide notice u/s.142(1) .. the assessee was asked to produce the details of source for Mr. Surali Narayan Swami along with necessary evidence and ledger of him in the book of the assessee for the unsecured loan. There was no response from the assessee .... On 20.2.2015 the assessee filed only the ledger of Mr. Surali Narayan Swami and no evidence for source was furnished. Again on 7.3.2015, the assessee was asked to produce proof for source for Mr.Surali Narayan Swami to ascertain creditworthiness and genuineness of transaction. For this assessee filed .... PAN and address of Mr. Surali Narayan Swami and stated that as Mr. Surali Narayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ABS Sanjjay vs. ACIT ITA No.1691 to 1693/Mds/2013 ii) Jai Steel (India) vs. ACIT [2013] 88 DTR 1 (Raj.) iii) Marigold Merchandise Pvt. Ltd. vs. DCIT ITA No.2666 & 2667/Del/2013 iv) AB Sudarsanam vs. ACIT ITA No.1694 & 1695/Mds/2013 v) MGF Automobiles Ltd. vs. ACIT ITA No.42l2 & 4213/Mds/2014 vi) Gurinder Singh Bawa vs. DCIT ITA Nos.2075 & 2669 (Mum) of 2010 vii) Rm.K. Viswanatha Pillai & Sons vs. DCIT ITA No. 1065, 1066 & 1067/Mds/2014 viii) AR Murugadoss vs. ACIT ITA No. 559, 560, 561, 562, 563 & 564/Mds/20l4 ix) Joseph Prince and Others vs. ACIT ITA No.2739, 2740 & 2741/Mds/2014 x) Jignesh P. Shah vs. DCIT ITA No. 1553 & 3173/Mum/2010 In all the above judgments, invariable decision is that no additions or disallowances can be made to the income returned in case of assessments which have been completed and in case where no incriminating materials have been found during the course of search. As the very existence of the assessments has become farce, the other grounds raised in all the AYs in appeal, relating to addition on account of unsecured loan becomes infructuous and hence are dismissed". 7. The assessee has mainly relied on the recent decision of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also to be noted that the assessment as well as reassessment are possible in the case of pending assessment. Further, when the assessments are already completed and no assessments are pending at the time of issue of notice under section 153A, reassessment can be made only if any incriminating material found during the course of search and item concluded in earlier assessment cannot be considered in the reassessment under section 153A of the Act. In other words, the scope of assessment under section 153A can be summarized diagrammatically as under: 7. Thus, as seen from the above chart, when nothing incriminating is found in the course of search or requisition, then the question of reassessment of already completed assessment does not arise. The underline purpose of making assessment of a total income under section 153A of the Act is therefore, to assess the income, which was not disclosed or would not have been disclosed. The second proviso to section 153A of the Act provides for abatement of assessment or reassessment only for the reason that there cannot be two assessments for a single assessment year. The reassessment is permitted in an assessment under section 153A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of Gurinder Singh Bawa v. DCIT [2012] 28 Taxman.com 328 (Mum.). The relevant observation of the Tribunal is reproduced herein below:- "6. We have perused the records and considered the rival contentions carefully. The dispute raised is regarding legal validity of addition made by AO under section 153A of the Act. Under the provisions of section 153A, in all cases, where search is conducted under section 132 of the Act, AO is empowered to assess or reassess total income of six assessment years preceding the assessment year in which search was conducted. The section also provides that assessment or reassessment relating to any assessment year falling within period of six assessment year if pending on the date of initiation of search shall abate. There have been divergent views regarding scope of application of section 153A in cases where no incriminating material was found indicating any undisclosed income. Some of the Tribunal Benches had taken the view that in case no incriminating material was found AO had no jurisdiction to make assessment or reassessment under section 153A while some other Benches held that jurisdiction under section 153A was automatic to reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing incriminating material is found on account of search of search or requisition then the question of reassessment of concluded assessment does not arise. If any books of account or other documents relevant to the assessment has not been produced in the course of original assessment and found in the course of search, such books of account or other documents are to be taken into consideration while assessing or reassessing the total income under the provision of section 153A of the Act. The requirement of assessment or reassessment under section 153A had to be read in the context of section 132 or under section 132A of the Act in as much as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of concluded assessment does not arise, which would require more reiteration and it is only in the context of abated assessment under second proviso, which is required to be assessed. Thus, it is apparent from the above that (a) the assessment or reassessments, which stand abated in terms of second proviso to section 153A of the Act, the Assessing Officer acts under his original jurisdiction for which assessments, have to be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are unearthed or any statement made by the assessee during the course of search under section 132 and no materials are received for the afore specified period of six years, the assessee is bound to file a return, is the scheme of the pro vision. Even though the second proviso to section 153A speaks of abatement of assessment or reassessment pending on the date of the initiation of search within the period of six assessment years specified under the provision that will also not absolve the assessee from his liability to submit returns as provided under section 153A(1)(a). This being the scheme of the provisions of the Act, the Appellate Tribunal ought to have considered the issue with specific reference to the facts involved in the case and as provided under section 153A." In the light of the judgment of this court, the aforesaid conclusion of the Tribunal cannot be sustained." 9. Respectfully following the above decision of the Hon'ble Kerala High Court, we set aside the order of the ld. CIT(A) and direct him to adjudicate the grounds raised by the assessee on merits in accordance with law after allowing sufficient opportunities of being heard to the assessee. Accordingly all ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
