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TMI Blog2016 (9) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... making disallowance of a sum of Rs. 14,19,644/- under provisions of the section 40A(3) of Income Tax Act, 1961. ii. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction to pass impugned assessment order under section 153A, more so in making impugned disallowance which ought not to have been made under the law. iii. That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. A.O in making the impugned disallowance and framing the impugned assessment order is contrary to law and facts, void ab initio, beyond jurisdiction and the same is not sustainable on various legal and factual ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2013, pronounced on 10/06/ 2016. 3. The learned Commissioner of Income Tax (Departmental Representative) relied on the orders of the lower authorities, however, he could not controvert the facts that no assessment proceedings were pending as on the date of search and no incriminating material has been found during the course of search. 4. We have heard the rival submissions and perused the material on record. In the case of the assessee, search and seizure operation under section 132 of the Act was carried out on 21/01/2011 and consequently notice under section 153A of the Act was issued on 09/01/2012, asking the assessee to file the return of income. In response, the assessee filed a letter stating that return filed originally under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay Infrastructure Private Limited (supra) has also followed the findings of the Hon'ble jurisdictional High Court in the case of Kabul Chawla (supra). 6. Respectfully following the ratio laid down in above decisions, when we examine the facts of the present case, we find that original return of income under section 139(1) of the Act was filed on 17/09/2009 and no notice under section 143(2) of the Act was issued within the statutory period available, which expired on 30/09/2010. Since in the case of the assessee search was conducted on 21/01/2011, no assessment was pending as on the date of the search. This fact has not been disputed by the learned CIT (DR). Further, we find from the assessment order that in the addition made for disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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