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TMI Blog2023 (5) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal, Rajkot in Income Tax (SS)A No. 154 of 2016 in respect of the Assessment Year 2007-2008. 2.1 The Revenue has proposed the following questions to be arising as substantial questions of law in the appeal, "(i) Whether on the facts and circumstances of the case, the Hon'ble Tribunal has erred in holding that addition during the assessment u/s 153A has to be confined to the incriminating material found during the course of search u/s 132(1) of the Act ? (ii) Whether the Hon'ble Tribunal has erred in law and on facts in upholding the order of the CIT(A) on the issue of deletion of the addition made on account of dis-allowance of power & fuel expenses of Rs. 81,47,598/- during the assessment u/s 153A of the Act by holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1) of the Act, even though, there is no such stipulation in Section 153A of the Act ? (vi) Whether the Hon'ble Tribunal has erred in law and on facts in upholding the order of the CIT(A) on the issue of deletion of the addition made on account of dis-allowance of interest u/s 36(1)(iii) of Rs. 1,60,56,198/- though the assessee had made interest free advances out of interest bearing funds during the assessment u/s 153 of the Act by holding that additions have to be confined to the incriminating material found during the course of search u/s 132(1) of the Act, even though, there is no such stipulation ?" 3. The facts in brief are that on 20.11.2014, the Assessing Officer passed assessment order under section 143(3) read with section 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhisar Buildwell P. Ltd. being Civil Appeal No. 6580 of 2021 and other group of appeals decided on 24th April, 2023. They were the group of appeals filed by the Revenue as well as the assessee respectively. The issue involved in the said appeals before the supreme court was about the scope of assessment under section 153A of the Act. According to the case of the Revenue, the Assessing Officer is competent to consider all the material available on record including the material found during the search and make assessment of 'total income'. While some High Courts had agreed with the said proposition, other High Courts took the view that if no assessment proceedings are pending on the date of initiation of search, the Assessing Officer can cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saumya Construction (supra), which has been followed by the Gujarat High Court in the subsequent decisions, referred to hereinabove. Only the Allahabad High Court in the case of Pr. Commissioner of Income Tax v. Mehndipur Balaji, 2022 SCC Online All 444 : (2022) 447 ITR 517 has taken a contrary view." (para 7) 4.4 The Kabul Chawla (supra) was quoted for its ratio as under, "In the case of Kabul Chawla (supra), the Delhi High Court, while considering the very issue and on interpretation of Section 153A of the Act, 1961, has summarised the legal position as under: Summary of the legal position 38. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e., those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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