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TMI Blog2014 (12) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out in the group cases of Jindal Group on 30.08.2007. A search warrated of authorization u/s 132 was issued in the name of Assessee. Thereafter in accordance with provisions of Section 153A of the Act, a notice was issued on 05.03.2009 and in response to which Assessee filed return of income for A.Y. 03- 04 on 03.11.2009 declaring total income of Rs. 51,63,830/-. Therafter the Assessment was framed under Section 153A r.w.s. 143 (3) vide order dated 11.12.2009 and the total income was determined at Rs. 58,09,590/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who vide order dated 19.08.2010 granted partial relief to the Assessee. Aggrieved by the aforesaid order of CIT(A) Assessee is now in appeal before us. Before us Assessee raised various grounds which were later modified and the concise grounds reads as under:- 1. On the facts and in the circumstances of the case, the CIT(A) erred in upholding the assessment framed under section 153A read with section 143(3). 2. Without prejudice, on the facts and in the circumstances of the case, the CIT(A) erred in upholding the adjustments made by the Assessing Officer in regard to the assessee's clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seized. In other words, the assessment u/s. 153A/153C can be made only in respect of seized material. Only in respect of pending assessments other issues can be considered besides the seized documents. In other words, there needs to be two assessments order for completed assessments - one regular and other based on seized documents. With due respect, this interpretation is not correct as the basic scheme of search assessments u/s. 153A/153C was introduced w.e.f. 2003 to overcome the two assessments theory i.e. block assessments u/s. 158BC/158BD based on seized material and regular assessment u/s. 143(3). Section 153A presupposes making of the assessment of 6 years irrespective of whether any incriminating document is seized or not. 5.3 Further, if the decisions are considered as good law then no remedial action is possible in respect of completed assessments u/s. 143(3) or returns accepted u/s, 143(1) by resorting to the provisions of section 154 or 147 or 153A of the Act. For example, if in a case the completed assessment years are 2003-04 and 2004-05 and regular assessment for A.Y. 2005-06 is pending as on the date of search and the assessment for A.Y. 2002-03 was re-opened an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer was not competent to do so in assessment u/s. 153A of the Act. We, therefore, cancel the assessment framed u/s. 153A of the Act for all the years. " Therefore, the ratio of the decisions of the IT AT will not be applicable in this case. The assessment order passed u/s. 153A is therefore upheld. The first ground of appeal of the appellant is dismissed. 7As regards the second ground regarding the merit of the disallowance u/s. 80HHC on DEPB licence, the decision of Hon'ble Mumbai High Court in the case of Kalpataru Colours and Chemicals squarely covers the action of the AO. The head notes of the decision as appearing in IT AT online.org is reproduced as under: CIT vs. Kalpataru Colours and Chemicals (Bombay High Court) Saturday, July 10th, 2010 DEPB sale proceeds cannot be bifurcated into "profits" and "face value". The entire amount is "profits" for s. 80HHC r.w.s. 28(iiid) S. 28 (iiid) provides that "any profit on the transfer" of the DEPB shall be business profits. Under Explanation (baa) to s. 80HHC, 90% of "the sum referred to in s. 28(iiid)" has to be reduced from the business profits. Under the third Proviso to s. 80HHC (3), in the case of an assessee having an exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.w.s. 153A on 11.12.2009 wherein the reduction on account of deduction u/s 80HHC was made by A.O. ld. A.R. further submitted that in case of search and seizure proceedings no incriminating material or undisclosed assets were discovered. He therefore submitted that since in the case of Assessee, the assessment proceedings had already been completed and the orders were subsisting at the time when the search was made there was no question of any abatement of the assessments since no proceedings were pending. Ld. A.R. further submitted that CIT(A) had relied on the decision of Bombay High Court in the case of Kalpatru Colours and Chemicals for upholding the action of A.O but however the Hon'ble Apex Court in the case of Topmen Exports vs. CIT (2012) 342 ITR 49 (SC) has overruled the decision in the case of Kalpatru Colours (supra). The ld. A.R. further submitted that Hon'ble Gujarat High Court in the case of Avani Exports vs. CIT (2012) 23 Taxman.com 62 (Guj.) has held the amendment made to Section 80HHC by adding 3 and 4 proviso to Section 80HHC (3) by amendment of taxation laws second amendment Act, 2005 with retrospective effect to be ultra vires. He therefore submitted that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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