TMI Blog2023 (6) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... riminating material found during the course of search for assessment years 2011-12 to 2015-16 in respect of making addition made towards unsecured loans under section 68 of the Act and consequential disallowance of interest on such loans. Hence, the earlier assessment years for assessment years 2011-12 to 2015-16 cannot be disturbed at all by learned AO while framing the search assessments under section 153A of the Act. This issue is no longer res integra in view of the recent decision of the Hon ble Supreme Court in case of PCIT Vs. Abhisar Buildwell Pvt. Ltd [ 2023 (4) TMI 1056 - SUPREME COURT] wherein the decision of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] has been upheld by the Hon ble Apex Court. Hence, in view of the same, all the additions made by learned AO in the search assessments for assessment years 2011- 12 to 2015-16 are hereby directed to be deleted. In view of our earlier observations made that the revised returns filed by the assessee for the assessment years 2011-12 to 2015-16 on 13.12.2018 are invalid and non-est, the income to be determined for assessment years 2011-12 to 2015-16. - ITA No. 199 to 204/DDN/2019 - - - Dated:- 23-6-2023 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery group of cases. The premises of the assessee was also covered under search operation under the authorization of warrant dated 23.11.2016 issued by Principal Director of Income Tax (Investigation), Kanpur, authorizing to search premises situated at 28, Feet Road, Dehradun Pahadi Gali, Vikas Nagar, Dehradun. During the course of search, cash amounting to Rs. 27,54,530/- was found. The assessee was able to explain the found cash out of withdrawals made from his bank account to the tune of Rs. 4,12,000/-. The remaining sum of Rs. 23,42,530/- become unexplained for the period 01.04.2016 to 01.12.2016 (date of search). The assessee based on this worked out the unaccounted income at Rs. 74,96,096/- and agreed to offer the same as unaccounted income for assessment year 2017-18 and pay taxes thereon. The assessee also gave a statement under section 132(4) of the Act to this effect. Notice under section 153A of the Act was issued on 20.12.2017. The due date granted to the assessee for filing return in response to notice issued under section 153A was 22.01.2018. The assessee, however, filed return of income in response to notice under section 153A of the Act only on 13.06.2018. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revised returns filed on 13.12.2018. 8. Learned AO did not agree to the contentions of the assessee in distributing the unaccounted income of Rs. 74,96,096/- to various years. Having not agreed, the learned AO still completed the assessment by taking into account the revised return filed on 13.12.2018 [which includes the distributed portion of unaccounted income as tabulated(supra)] for assessment years 2011-12 to 2016- 17 and made further additions in respect of certain unsecured loans borrowed by the assessee from various parties together with disallowance of interest paid on such loans. 9. The learned CIT(A) summarily dismissed the appeals of assessee for assessment years 2011-12 to 2016-17 as not maintainable on the ground that the assessee had not paid the taxes and interest due as per the revised return filed by him on 13.12.2018. Aggrieved, the assessee is in appeals before us for assessment years 2011-12 to 2016-17. 10. We find that the learned CIT(A) had grossly erred in dismissing the appeals of the assessee as not maintainable. It is a fact on record that the assessee had, indeed, sought to adjust the refunds that would arise in assessment year 2017-18 with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai Tribunal in the case of ACIT Vs. V.N. Devadoss, in ITA No.1219 1221/Mad/2012, dated 04.02.2013 and ACIT Vs. V.N. Devadoss (HUF) in ITA No.1220,1222 1223/Mds/2012, dated 04.02.2013. The relevant operative portion of the said judgment is as under: 31. The issue is to be examined in the above background. Valid returns sustainable in law are the returns filed by the assessees in response to notices issued by the Assessing Officer under section 153A of the Act, consequent to the search action carried out under section 132 of the Income-tax Act, 1961. 32. How the requirement of section 139(1) is satisfied by filing a return under section 153A? This is assumed in the light of section 153A(1)(a), where it is stated that where a search is initiated under section 132, the Assessing Officer shall issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years in the prescribed form and verified in the prescribed manner and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od or on project completion method. Therefore, it was not certain to hold that the assessees were liable at all to file returns under section 139(1). Whether the assessees had recognized their income for the impugned assessment years is also not clear. The returns were filed after search made under section 132 but before the issue of notice under section 153A. Those returns were belated returns. Therefore, those returns are non est in law. The emerging picture is that the assessees had filed returns for the first time only in response to notices issued under section 153A. They were filed within the time. Law has not prescribed any time limit for issue of notice under section 153A or for filing of the return in I response to notice issued under section 153A. Law provides that an assessee shall file his return in pursuance of the notice issued under section 153A within the time stipulated in the notice. But it is also available in the hands of the Assessing Officer to extend the period of time to file the return. In these cases the assessees have filed returns within the extended time. Therefore, it is to be held that these returns were filed by the assessees under section 153A withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exactly like the provisions of law stated in section 80AC. In spite of that, the Tribunal in the above stated case of Mr. Faisal Abbas has held that the assessee is still entitled for carry forward and set off of business loss as the return filed by the assessee under section153A has to be treated as a return filed under section 139(1). The same principle has been followed by the Income-tax Appellate Tribunal, Mumbai G-Bench in the case of DCIT vs. Ms. Eversmile Construction Co. Pvt. Ltd.in ITA No.4238/Mum/2010 dated 30-8-2011. 42. In view of the above discussion and relying on the above mentioned decisions of the Income-tax Appellate Tribunal, Mumbai Benches, we hold that the returns filed by the assessees under section 153A are to be treated as returns filed under section 139(1) by virtue of the law stated in section 153A(1)(a). As such, the assessees are entitled for the deduction available under section 80IB(1). The rider provided in section 80AC does not apply to the present cases, as the returns filed by the assesees under section 153A have been considered as returns filed under section 139(1) within time. 43. Therefore, we uphold the decision of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity fastens on the assessee to file the return within the reasonable time specified in the relevant notice. This principle has been duly addressed by the Coordinate Bench of Chennai Tribunal referred to supra. 16. Considering the issue in dispute before us in the light of the aforesaid observations and the decision of Chennai Tribunal, it could be safely concluded that the revised return filed by the assessee for the assessment years 2011-12 to 2016-17 are invalid returns and have to be declared non-est, for the reason that these are nothing but revising of belated returns filed on 13.06.2018. Hence, the entire additional incomes offered by the assessee in the revised returns filed on 13.12.2018 for assessment years 2011-12 to 2016-17 cannot be taxed at all in the relevant assessment years as it had been offered in the invalid and non-est revised return. We would also like to make a passive observation, at this stage, in the interest of justice and fair play, that the additional income of Rs 74,96,096/- offered by the assessee in assessment year 2017-18 in the returns filed on 13.06.2018 shall have to be sustained and added. This would meet the ends of justice and avoid double ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of search 01.12.2016 21. Hence, from the above, it could be concluded that assessment years 2011-12 to 2015-16 are concluded assessments and the assessments thereon could be disturbed by learned AO only when he has in possession of any incriminating material found during the course of search relatable to those assessment years qua the additions made by learned AO. Admittedly, there is absolutely no incriminating material found during the course of search for assessment years 2011-12 to 2015-16 in respect of making addition made towards unsecured loans under section 68 of the Act and consequential disallowance of interest on such loans. Hence, the earlier assessment years for assessment years 2011-12 to 2015-16 cannot be disturbed at all by learned AO while framing the search assessments under section 153A of the Act. This issue is no longer res integra in view of the recent decision of the Hon ble Supreme Court in case of PCIT Vs. Abhisar Buildwell Pvt. Ltd reported in 149 taxmann.com 399 (SC) dated 24.04.2023, wherein the decision of Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla reported in 380 ITR 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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