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TMI Blog2015 (10) TMI 2569X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- 1) "On the facts and circumstances of the case and in law, the learned CIT(A) erred in not appreciating the fact that the additions for this year has to be res t r ic ted on the bas i s of evidence found in the books and documents found during the search as per the decision of the ITAT Mumbai ,Special Bench in the case of 'All Cargo Global Logistics Ltd' [23 taxmann.com 1 0 3 (Mum)SB] , wh i ch has now been upheld by the Bombay High Court by their decision delivered on 21st April 2015, in appeal No ITX 1969 of 2013. 2) On the facts and circumstances of the case and in law, the learned CIT(A) erred in upholding the Assessment order as the PAN was not transferred to the new jurisdiction even on the date of the order." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act was completed on 19/12/2008 and, therefore, on the date of search i.e. on 10/01/2011, assessment stood completed, and in any case as on the date of search, the assessment for impugned assessment of 2006-07 was not pending. The aforesaid factual matrix has been referred to by the Ld. Representative for the assessee to explain that the assessment for the year under consideration did not abate in terms of the second proviso to section 153A(1) of the Act. Accordingly, it is sought to be canvassed that the impugned addition could not be made in the impugned assessment proceedings unless some incriminating material was found during the course of search in connection with the impugned issue. In support of the said proposition, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction. In order to appreciate the controversy, it is pertinent to observe that Section 153A of the Act postulates the assessment in cases of search or requisition under section 132 or under section 132A of the Act respectively. The said section envisages that the Assessing Officer shall assess or reassess the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted. The second proviso to section 153A(1) of the Act also prescribes that assessment or re-assessment, if any, relating to any assessment year falling within the period of six years referred to in subsection( 1) of section 153A of the Act, which is pending on the date of initiation of search or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble High Court also noticed its earlier judgment in the case of Murali Agro-products Ltd. (supra) and elaborately culled out the scope and ambit of the assessment and reassessment of total income under section 153A(1) of the Act read with the proviso thereof. The Hon'ble Bombay High Court in Continental Warehousing Corporation (supra) has ruled that an unabated assessment under section 153A(1) would not encompass an addition, if no incriminating material is found during the course of search, because in such a case, the original assessment had become final. This proposition has been canvassed by the Ld. Representative for the assessee before me in order to assail the addition of Rs. 75,600/- made by the Assessing Officer. 5.1 More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other postsearch material or information available with the AO which can be related to the evidence found, it does not mean that the assessment " can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava-Sheva) (supra) as also the judgment of the Hon'ble Delhi High Court in the case of Kabul Chawla (supra), the impugned addition could not have been made in respect of an unabatable assessment which had otherwise become final, in the absence of any incriminating material having been found in the course of search, qua the impugned addition. Accordingly, I set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition of Rs. 75,600/- as the same is purported to be beyond the scope and ambit of assessment envisaged under section 153A of the Act. Thus, on this aspect, the assessee succeeds. 6. In the result, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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