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TMI Blog2016 (11) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies. The assessee running her own proprietorship firm in the name and style of Venus Designs which is engaged in the business of export of home furnishings and sale of handicrafts. The search and seizure action u/s. 132 was carried out at the residence and business premises of Bermaco/Flemingo group on 31.10.2009. However, no incriminating material or any other papers relating to the assessee were found during the course of search. However assessment order u/s. 153A read with section 143(3) of I.T. Act was passed vide order dated 29.12.2011. 3. Aggrieved by the assessment order the assessee preferred an appeal before learned CIT(A) for A.Y. 2004-05 & 2008-09. Since ground in both the appeals are identical hence we reproduce grounds fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into operation if a search or requisition is initiated after 31/05/2003 and on satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income for six years immediately preceding the year of search. The Special Bench further held that in case assessment is abated, the AO retains the original jurisdiction as well as jurisdiction u/s 153A for which assessment shall be made for each assessment year separately. It was submitted that thus in case where assessment has abated the AO can make additions in the assessment, even if no incriminating material has been found. But in other cases the Special bench held that the assessment u/s.153A can be made on the basis of the incrimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Hon'ble Jurisdictional High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (58 taxmann.com 78) has held that Section 153A of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (Scope of) - Whether in a case where pursuant to issue of notice under section 153A1 assessments are abated, Assessing Officer retains original jurisdiction as well as jurisdiction conferred on him under section 153A for which assessments shall be made for each of six assessment years separately - Held, yes -Whether no addition can be made in respect of unabated assessments which have become final if no incriminating material is found during search - Held, yes in favour of assessee. Relevant para No. 28 read as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iately preceding the assessment year relevant to the previous year in 'which the search is conducted or requisition is made and thereafter assess or reassess the total income for those assessment years. The second proviso to Section 1 53A provides for abatement of assessment/reassessment proceedings which are pending on the date of search/requisition. Section 153A (2) provides that when the assessment made under Section 153(A)(1)is annulled, the assessment or reassessment that stood abated shall stand revived. (10) Thus on a plain reading of Section 153A of the Income-tax Act, it becomes clear that on initiation of the proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment finalised on 29.12.2000 has attained finality, then the deduction allowed under section 80 HHC of the Income-tax Act as well as the loss computed under the assessment dated 29-12-2000 would attain finality. In such a case, the A.O. while passing the independent assessment order under Section 153A read with Section 143 (3) of the I.T. Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section I53A of the Income- tax Act establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of 153 A proceedings. (13) In the present case, there is nothing on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if no incriminating has been found. But in other cases the Special Bench held that the assessment u/s. 153A can be made on the basis of the incriminating material which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the assessment had been completed under summary scheme u/s. 143(1) and time limit for issue of notice u/s. 143(2) expired before the date of search. Therefore, there was no assessment pending in this case and in such a case there was no assessment pending in this case and in such a case there was no question of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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