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TMI Blog2016 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 7-7-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For The Appellant : Shri P.M. Mehta, AR For The Respondent : Shri Rajeev Agarwal, CIT/DR PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. The aforementioned captioned bunch of appeals by the respective assessees are directed against separate orders of the Ld. CIT(A)-III, Ahmedabad dated 30.11.2012 pertaining to respective assessment years mentioned in the captioned appeals, have common grounds by which the assessee has challenged the very validity of the assessment order made u/s. 153A r.w.s. 143(3) of the Act. 2. All these appeals were heard together and are being disposed of by this common order for the sake of convenience. 3. Representatives from both sides were heard at length. 4. Briefly stated the facts of the case are that a search action u/s. 132 of the Act was carried out in the group cases of Komal Group on 06.08.2009. Notice u/s. 153A were issued and served upon the assessees and the assessees filed return of income accordingly. Statutory notices u/s. 143(2) and 142(1) of the Act were subsequently issued and served upon the assessee. 5. During th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sudhir Pukhraj Bagrecha 83/Ahd/2013 2004-05 26/10/2004 143(1) 31/10/2005 84/Ahd/2013 2005-06 25.01.2006 143(1) 31.01.2007 Sayarben S Bagrecha 85/Ahd/2013 2004-05 19/10/2004 143(1) 31/10/2005 Pooja Rajesh Bagrecha 86/Ahd/2013 2004-05 22/12/2004 143(1) 31/12/2005 Rajesh Sureshkumar Bagrecha 87/Ahd/2013 2004-05 28/10/2004 143(1) 31/10/2005 9. A perusal of the chart shows that prior to the date of search, the aforementioned assessments stood completed and, therefore, if no incriminating material is found then the concluded assessments could not be reopened. This view is now settled in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue and taking into consideration, records available the following facts emerges as undisputed. The regular return of income was filed on 2.12.2003 and the same was processed u/s 143(1)(a) of the Act. The time period for issuing notice u/s 143(2) of the IT Act for selecting case for security expired on 31.12.2004. The first search was conducted on the premises of assessee on 22.9.2005 and the 2nd search was conducted on 25.8.2006 and in both the searches, no incriminating material, document, unaccounted assets and bogus of accounts were found and seized relating to land development expenses debited in profit and loss account for the year. The both searches on assessee did not yield any incriminating material on the basis of which it can be said that assessee was indulgent in debiting bogus land development expenses in its books of account. There is no reference of any material found in the search for making assessment u/s 153A of the Act. Thus the basic controversy before us remains about the scope of assessment u/s 153(A) when the return has been accepted u/s 143(1)(a) and time period for issuing notice u/s 143(2) has elapsed. 8. In our considered view, there is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation of search under section 132 or requisition of books, no proceeding is pending, but in the search, material is found indicating incriminating material, the Assessing Officer embarks on a jurisdiction, wherein he has to club the two safe of incomes, the returned income and the unearthed income and arrive at the total income. 11. In the case of Kabul Chawla 380 ITR 573, the Hon ble High Court has summarized the legal position as under:- 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(l) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 153 A of the Act? 6. It is not in dispute that in respect of the Respondent Assessee for the AYs in question the initial assessment proceedings took place under Section 143(3) of the Act. Thereafter they were sought to be reopened by issuing notice under Section 147 of the Act and reassessment orders were passed under Section 147 read with Section 143(3) of the Act. During both the aforementioned proceedings the question whether the gold and silver utensils were the capital assets or personal effects of the Assessee was examined. They were held not to be the personal effects. 7. It has been noticed by the ITAT in the impugned order that for the A.Ys in question no incriminating material qua the Assessee was found. 8. In that view of the matter, and in light of the decision of this Court in CIT vs. Kabul Chawla (2016) 380 ITR 573 (Delhi), the Court is of the view that the impugned order of the ITAT suffers from no legal infirmity and no substantial question of law arises for determination. 13. Now, let us examine the aforementioned ratios laid down by the Hon ble High Courts in the light of the documents found at the time of search which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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