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TMI Blog2013 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... me or property disclosure in the course of search - The AO cannot make any other regular additions as done in the original assessment in the course of reassessment u/s 153A unless there is fresh material found during the course of search relevant to the assessment years under consideration – There was no reference to any specific seized document which has a direct relevance for the year under consideration which means that there was no incriminating material against the appellant for this assessment year that can prompt the AO to re-agitate the issues which was otherwise settled in the regular assessment completed earlier - Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the assessment order made u/s 143(3) in respect of the assessment years. Since Assessee's books of account were not available, the AO referred the matter for special audit u/s 142(2A) of the Act and the special auditor did not submit any report as no books of account and details were furnished. The AO completed the assessments by disallowing mainly 50% of the sub-contract payments made in respect of the assessment years under consideration thereby making addition for AY 2003-04 of ₹ 1,54,00,000/-, for AY 2004-05 of ₹ 2,22,00,000/-, for AY 2005-06 of ₹ 5,16,00,000/- and for AY 2006-07 of ₹ 22,00,000/- & ₹ 1,86,37,627/- to Bharath Infrastructure. In addition, in AY 2003-04, the AO disallowed unexplained share application money of ₹ 1,75,000/- and disallowed depreciation on certain assets for an amount of ₹ 43,625/-, in AY 2004-05 ₹ 1,33,594/-, and in AY 2005-06 ₹ 2,72,000/-. For AY 2006-07, the AO also made disallowance of ₹ 67,010/- u/s 40(a)(ia) of the Act and disallowance of expenditure of ₹ 4,86,26,000/- in the guise of diversion of funds. 5. Assessee contested before the CIT(A) that the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basically referred to a seized document "pages 144 to 150 of Annexure AI AMRCL/02 found and seized during the course of search, which has been formed as a part of the assessment order. I have gone through the same and I find that the said seized papers relating to certain accounting adjustments for the year 2008. The Assessing Officer has also referred to a tabular statement which forms part of the Asst. order as Annexure-II. However, the said tabular statement giving a list of different persons is undated and unsigned. The Assessing Officer has not given any specific finding that any of the entries in the tabular statement as in Annexure-II of the asst. order is for the year 2003-04. The asst. order indicates that the additions have been made basically relying on the, findings of the postsearch investigations for the AYs 08-09, 09-10 etc. 6.3 It is also not disputed that the assessment for the AY under consideration was earlier completed u/s 143(3) of the I.T.Act vide order dated 28.11.2005. In the said order dated the Assessing Officer has clearly mentioned that the AR of the assessee had filed the information called for from time to time. After examining the details, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon'ble Jharkhand High Court in the case of Abhay Kumar Shroff at Para 16 of the order as below: 16. The Hon'ble Jharkhand High Court in the case of Abhay Kumar Shroff (supra), has held recently that there shall be assessment of undisclosed income of six assessment years preceding that in which search was conducted under the new scheme of assessment. [Emphasis supplied]. 6.6 A similar view was also expressed in the case of Sun City Alloys (ITAT, Jodhpur), wherein it was held that the submission of the assessee's counsel as to scope of section 153A assessment being de novo in nature is not acceptable and submission of the Ld. DR that scope of section 153A assessment is qua such material deserves to be accepted. It was also held that issuance of notice u/s 153A for all six assessment years does not entitle altogether a fresh exercise of making fresh assessment and that necessarily only undisclosed income after defraying expenses for earning the same is taxable when interpreted in specific context of section 153A. ITAT Ahmadabad in the case of Meghmani Industries Ltd and Meghmani Organics Ltd, wherein the Ld. Counsel for the appellant submitted that mainly bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22, 1623, 573 to 576/Hyd/2008, the Hon'ble ITAT, Hyderabad B-Bench at Para NO.6 has observed as under: " .... the present assessment is made u/s 143(3) r.w.s. 153A rws 153C of the Act. The second proviso of sub section 1 to section 153A provides that if assessment for any of the assessment year falling within in a period 6 years mentioned in clause (b) of Section 153A (1) is pending on the date of search, it shall abate. The present assessment year is 1999-2000 which is falling within the period of 6 years but its assessment is complete and hence the proceedings do not abate. In other words the original assessment was made u/s 143(3) has become final and is not affected by the second proviso to section 153A. Of course, the present assessment is a case falling u/s 153C, but then, as per sub section (2) of section 153C, this assessment was also to be done in the manner provided in section 153A. Therefore, the second proviso to section 153A applies equally to the cases falling u/s 153C. What follows is that the assessment now to be done is to be confined to the material found in the course of search only. The additions/disallowances made in the regular assessment cannot be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before me for consideration, it is a fact not disputed that the assessments for the year under consideration, was already completed earlier u/s 143(3) vide order dated 28.11.2005. It is also a fact not disputed that the AO has not specifically pointed out any material found during the course of search based on which the additions have been made in the assessment years which is under appeal. This is further strengthened by the fact that there is no reference to any specific seized document which has a direct relevance for the year under consideration which means that there was no incriminating material against the appellant for this assessment year that can prompt the AO to re-agitate the issues which was otherwise settled in the regular assessment completed earlier. Thus, as per the view held by the latest decision of the Special Bench, Mumbai, referred to supra, the assessment for the year under consideration which was already completed shall not be subjected to assessment again u/s 153A/153C Thus, relying on the decision of Hon'ble ITAT, Hyderabad, B-Bench in the cases referred to above as also the plethora of decisions referred to earlier including the latest decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rim period and there was admission by the parties that they were following similar modus-operandi in other years and on those facts, the Hon'ble High court have agreed that additions can be extended to the other period. Whereas in Assessee's case, there is no incriminating material for any of the impugned assessment years and further in the absence of incriminating material completed assessments cannot be re-agitated. He relied on various case law, on which reliance was placed by the learned CIT(A) to contend that assessments passed by the AO is bad in law. 9. After considering rival contentions and examining the record, we do not find any reason to interfere with the order of learned CIT(A) on legal principles. In fact, in all the four years, the assessments have been completed u/s 143(3) after examining the books of account. Since the issues have been crystallized in the respective assessment years, no appeals were filed in those cases, therefore, the orders would not get abated. The Hon'ble Special Bench of ITAT, Mumbai in the case of All Cargo Global Logistics Ltd. Vs. DCIT, 147 TTJ 513 has held that in the assessments that are pending, the AO retains original jurisdiction as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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