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TMI Blog2011 (11) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, are also liable to be restored to the file of the Assessing Officer to consider the additions in the assessments under Section 153 A, as well. The Tribunal further observed that in the event the search is declared illegal by any Court, or assessment under Section 153A is held invalid, the appeal in relation to regular assessment will revive at the instance of the department, on an application to the Tribunal. 3. The appeal was admitted on the questions of law as follows:- "Whether on the facts and in the circumstances of the case, the Hon'ble Income tax Appellate Tribunal was justified in law in setting aside the case and restore to the file of A.O. without appreciating that as per provisions of section 153 A, "only assessment pending" as on the date of search are abated and not the "assessment completed" or 'appeal pending'?" 4. Brief facts given to this income tax appeal are as follows:- 5. The assessee filed a return for the assessment year 2002-03 on 31.12.2002 declaring income of Rs. 3,66,438/-. The case was selected for scrutiny, on which a notice under Section 143 (2) of the Act was issued. On 10.11.2004 the assessee was required to produce the donors along with evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations made above. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 31.10.2007." 9. Shri Bharat Ji Agrawal appearing for the department submits that the assessment was completed, the assessment order was passed on 31.3.2005. The appeal was also decided by CIT (A) on 22.5.2006 much before the initiation of search under Section 132 on 17.10.2006. The proceedings for assessment or reassessment were not pending on 17.10.2006 and thus according to the second proviso of Section 153A, only the pending assessment or reassessment is to abate. The assessments, which had become final are not liable to abate. The second appeal filed before the ITAT is not continuation of the proceedings of assessment. He submits that in pursuance to the assessment order under Section 143 (3) a penalty of Rs. 97,85,925/- was imposed under Section 271 (1) (c) of the Act. If the interpretation given by the ITAT is to be accepted, the entire proceedings of penalty will also abate giving an unreasonable advantage to the assessee, insptie of adverse findings inviting penalty. 10. Shri Bharat Ji Agarwal submits that the order of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable accounting period beginning after the 31st day of March, 1947, such sum as may be fixed by the annual Finance Act. [Business Profits Tax Act (21 of 1947), S.2 (1)] Removal or destruction, (as) of a nuisance; failure; premature end, suspension or diminution, (as) of an action or of a legacy. The action of abating; being abated. {O.XXII, R.1, CPC (5 of 1908)]; decrease [S.12 (3) (b) (i), Specific Relief Act (47 of 1963)]. Of An Action Or Suit: In civil law an abatement of a suit is a complete termination of it. Abatement of a matter or cause is caused by the same becoming defective on account of the death of the parties materially interested. (Ency. of the Laws of England) A suspension or termination of proceedings for want of proper parties or due to some technical defect. The abatement of the main action abates proceedings ancillary or collateral to it. In Criminal Law: Abatement of proceedings connotes their termination without any decision on merits and without the assent of the prosecutor. (Ency. of the Laws of England) In Revenue Law: Abatement is a deduction from or refunding of duties on goods damaged during importation or in store." 13. The word 'abatement' i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified that the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate. Save as otherwise provided in the proposed section 153A, section 153B and section 153C, all other provisions of this Act shall apply to the assessment or reassessment made under section 153A. It is also clarified that assessment or reassessment made under section 153A shall be subject to interest, penalty and prosecution, if applicable. In the assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 18. In State of Rajasthan v. Khandaka Jain Jewellers [2007] 14 SCC 339 the Supreme Court reiterating the principles of interpretation of taxing statutes held in para 24 as follows:- "A taxing statute has to be construed as it is all these contingencies that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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