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TMI Blog2015 (8) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee cannot revise the income in respect of an item of income which has already been declared in the original return of income at a higher figure and which has also been processed u/s 143(1). This is simply for the reason that proceeding initiated u/s 153A is for assessing undisclosed income unearthed as a result of search operation along with other income, which have escaped assessment. In case of CIT Vs. M/s Sun Engg. Works P. Ltd. (1992 (9) TMI 1 - SUPREME Court ), the Hon’ble Supreme Court while holding that the provision of section 147 is for the benefit of department and not for the benefit of assessee, also held that a particular claim of assessee, if already has been considered at the time of original assessment, or assessee has not raised that claim either in the original return of income or during the original assessment proceeding, he cannot raise the same in the return filed in response to notice issued u/s 148. The principle laid down clearly applies to proceeding initiated u/s 153A of the Act., as AO has been empowered u/s 153A to also reassess the income of assessee for the preceding six AYs. In the aforesaid view of the matter, we hold that assessee having alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cern M/s AVJ Transport as well as rental income. Besides, assessee and her husband are the founder trustees of M/s Sree Educational Society, which is running engineering college. A search and seizure operation u/s 132 of the Act was conducted in case of society as well as the trustees on 10/09/09. Originally, assessee had filed return of income declaring total income of ₹ 25,58,349 including land lease rent of ₹ 15,30,000. The said return of income was processed u/s 143(1) on 21/06/09 accepting the income returned. Subsequently, in response to the notice issued u/s 153A of the Act, consequent upon search, assessee filed her return of income on 29/09/10 declaring total income of ₹ 12,57,850. During the assessment proceeding, AO while examining the original return as well as return filed in response to the notice issued u/s 153A of the Act, noticed that while in the original return assessee has shown land lease rent received from M/s Sree Educational Society at ₹ 15,30,000, however, in the return filed in response to the notice issued u/s 153A of the Act, assessee has shown land lease rent from M/s Sree Educational Society at ₹ 2,29,500. When AO called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be considered to be an assessment order so as to conclude that assessment of a particular item of income in case of assessee having been concluded, assessee cannot modify such income in the return filed in response to the notice issued u/s 153A. As far as AY 2009-10 is concerned, it was submitted by assessee that for AY 2009-10, assessee in response to the notice issued u/s 153A has filed return of income showing lease rental income of ₹ 2,29,500. The TDS certificate issued by lessee mentions lease rental income of ₹ 2,29,500. Therefore, since assessee has not received excess rent at ₹ 13,00,500, AO was totally wrong in adding that amount to the lease rental income. 5. Ld. CIT(A) after considering the submissions of assessee in the context of facts and materials on record, observed that for AY 2008-09, assessee filed original return of income on 30/09/08 and search took place on 10/09/09. She also observed that return in response to the notice issued u/s 153A was filed on 29/09/10. Therefore, if at all there was a lease deed modification agreement between assessee and the society on 28/09/06, it would be logical and reasonable to accept that in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Brokers Pvt. Ltd., (Appeal (civil) No. 2830 of 2007, dated 23/05/07). Further, distinguishing the decision in case of CIT Vs. M/s Sun Engineering Works P. Ltd. (supra), ld. AR submitted, the principle laid down therein is in the context of reopening of assessment u/s 147 of the Act, hence, will not apply to the assessment proceeding u/s 153A. Ld. AR referring to the verification provided in the return of income as well as the scope of total income as provided in section 5 of IT Act, submitted that assessee is required to give true and correct position of his income for a particular AY. He submitted, since the amount of ₹ 15,30,000 is neither the rent receivable nor received in view of the modified agreement, the same cannot be brought to tax. He, further submitted, even the society noticing the mistake had reversed the excess rent paid in its books of account in the next FY. Thus, it was submitted by ld. AR, assessee having not received lease rental of ₹ 15,30,000, but, having actually received the amount of ₹ 2,29,500, it is entitled to revise the same in the return filed in response to the notice issued u/s 153A. As far as AY 2009-10 is concerned, ld. AR subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Ld. AR has submitted that there being no assessment u/s 143(1) of the Act, it cannot be held that an item of income having already considered in a concluded assessment, cannot be subject matter in proceeding u/s 153A. 8.1 In view of the aforesaid rival contentions, it needs to be examined whether assessee can revise the income already shown in the original return of income to a lesser figure. For this purpose, it is necessary to look into the provisions contained u/s 153A of the Act. On careful reading of the said provision, it is very much clear that the said provision empowers the AO to assess or reassess the total income in respect of six assessment years immediately preceding AY in which search action was initiated. Further, it is also evident that the powers conferred u/s 153A is exclusive and overriding power which over rides sections 139, 147, 148, 149, 151 and 153. It is very much pertinent to mention here that as per section 153A, AO has been given power to reassess the income relating to preceding six AYs. While exercising the power to reassess AO can assess income which has escaped assessment by result of omission or failure on the part of AO in the original ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question in separate assessment orders. This means that there can be only one assessment order in respect of each of the six assessment years, in which both the disclosed and the undisclosed income would be brought to tax. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under section 143(1)(a) or section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the AO is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. For this purpose, the fetters Imposed upon the AO by the strict procedure to assume jurisdiction to reopen the assessment under sections 147 and 148, have been removed by the non obstante clause with which sub-section (1) of section opens. The time limit within which the notice under section 148 can be issued, as provided In section 149 has also been made inapplicable by the non obstante clause. section 151 which requires sanction to be obtained by the AO by issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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