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TMI Blog2015 (8) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... 72-A (2) (b) (i) of the Act. The court enquired from Mr. Sahni whether there is any indication anywhere in the assessment orders that the information regarding the land of CML having been sold by the Assessee during the AY 2007-2008 was obtained as a result of any material gathered during the search or any information obtained during the search. Mr. Sahni candidly answered in the negative. The inescapable conclusion is that the AO proceeded to frame assessments under Section 153 A of the Act relying on some information not unearthed during the search. Further, whatever was recovered during the search having been destroyed in a fire was not available with the AO when he framed the assessments. Consequently, the assessment orders passed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for a minimum period of five years from the date of amalgamation at least three fourths of the book value of fixed assets of the amalgamating company acquired in a scheme of amalgamation. 4. For AY 2004-05 returns were to be filed on or before 30th October 2004. The Assessee filed its return on 30th October 2004 under Section 139 (1) of the Act declaring Nil income. For the AY 2005-06, it filed its return on 27th October 2005 declaring an income of ₹ 50,04,700. The last dates by which the Revenue could resort to Section 143(3) of the Act were 31st March, 2007 and 31st March 2008 respectively. In the return for AY 2004-05, the Assessee had set off the losses of CML to the extent of Rs.l,65,09,929.93 against the Assessee.s busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A (7) (aa) of the Act. Secondly, the Assessee failed to retain three-fourths of the book value of the fixed assets as required by Section 72 A (2) (b) (i) of the Act since it had during AY 2007-2008 sold the land of CML valued at ₹ 37,93,375. 8. The Commissioner of Income Tax (Appeals) [CIT (A)], by orders dated 18th July 2011 for each of the two AYs, dismissed the Assessee.s appeals. 9. The ITAT has by the impugned order dated 28th June 2013 allowed the Assessee.s appeals. Relying on the decision of this Court in CIT v. Anil Kumar Bhatia (2013) 352 ITR 493 (Del) and of the Rajasthan High Court in Jai Steel (India) Jodhpur v. Asst. Commissioner of Income Tax (2013) 36 taxmann.com 523 (Raj), the ITAT came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted in Assessee's premises on 12th September 2007, in respect of its claims? (ii) Were the additions made by the AO which were directed to be deleted by the ITAT and are stated to be based on post search enquiries, warranted in the circumstances of the case? 11. This Court has heard the submissions of Mr. N.P. Sahni, learned Senior Standing Counsel for the Revenue and Mrs. Prem Lata Bansal, learned Senior counsel for the Respondent Assessee. 12. To begin with, what is striking is the fact that nowhere in the Assessment Orders for the AYs in question has the AO noted the stark fact that the material purportedly seized by the Revenue during the search was completely and irretrievably destroyed in a fire that took place on 6th O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ML during AY 2007-08. The Court considers the said submission to be hypothetical since the fact remains that the Revenue has thought it fit to resort to a search in terms of Section 132 of the Act followed by proceedings under Section 153A(1) of the Act. As far as the Court is concerned, in these proceedings, it is called upon to decide the legality of the assessment orders passed under Section 153A of the Act. 15. The inescapable conclusion therefore is that the AO proceeded to frame assessments under Section 153 A of the Act relying on some information not unearthed during the search. Further, whatever was recovered during the search having been destroyed in a fire was not available with the AO when he framed the assessments. Consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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