9911796707
TMI Blog2014 (1) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 11-12-2013 - Shri P. M. Jagtap And Shri Amit Shukla,JJ. For the Petitioner : Mr. Vijay Mehta For the Respondent : Mr. Rajesh Ranjan Prasad ORDER Per Amit Shukla, J.M. The present appeal has been preferred by the assessee challenging the impugned order dated 4th December 2009, passed by the learned Commissioner (Appeals)-37, Mumbai, for the quantum of assessment passed under section 143(3) r/w section 153A of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2003-04, inter-alia, on the following grounds of appeal:- 1. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in passing the order u/s. 250 of the Act. 2. The learned CIT(A) has erred in law and in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed by the learned Commissioner (Appeals). 3. At the outset, the learned Counsel, Mr. Vijay Mehta, on behalf of the assessee, submitted that during the course of search and seizure, no material whatsoever relating to NRI gift of "SBI Resurgent India Bond" was found and, therefore, such an addition cannot be sustained in the order passed under section 153A. He submitted that from a bare perusal of the assessment order passed under section 153A, it can be seen that it was from the details submitted by the assessee that the Assessing Officer has added the gift. Once the issue of gift has already been subject matter of scrutiny in the original assessment order passed under section 143(3), then no addition can be made in the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s found or seized qua this gift, which is evident from the fact discussed by the Assessing Officer in Para-5.1. Once no material has been found at the time of search and the earlier assessment order has attained finality, then no addition can be made in the assessment order passed under section 153A. This proposition is clear from the Special Bench decision of the Tribunal in All Cargo (supra), wherein it has been held that where any addition to the income that has already been assessed, the assessment under section 153A, will be made on the basis of incriminating material found in the course of search but not produced in the course of original assessment. In other words, if the material has been considered in the course of original assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the addition of Rs. 5,90,538 cannot be sustained. 6. Now coming to the decisions as relied upon by the learned Departmental Representative. From the issues and ratio discussed in these judgments, it is seen that the Hon'ble Delhi High Court has held that once there is a search, the Assessing Officer is required to call upon the assessee to file return of income for earlier six years, in response to the notice under section 153A and the assessment has to be completed for these six years. In the present case, the issue is entirely different as there is no dispute that notice under section 153A cannot be issued or no assessment can be made. The main issue involved is, whether the addition can be made in the order passed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
