9911796707
TMI Blog2015 (6) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT) the AO would not have jurisdiction to bring such issue in the assessment completed u/s. 153A r.w.s 143(3) and non-consideration thereof in the assessment order would not make the assessment order passed under section 143(3) r.w.s. 153A as erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee under section 132 of the Act. In pursuance, search notice under section 153A of the Act was received on 9/4/2012, in response to which return of income was filed on 5/7/2012 and assessment order dated 30/3/2013 was passed under section 143(3) r.w.s. 153A of the Act. In such order also AO did not disallow the additional depreciation on Wind Mill. Subsequent to passing the order, Ld. CIT issued show cause notice dated 2/3/2015 under section 263 on the ground that additional depreciation has wrongly been allowed to the assessee and, therefore, assessment order passed by AO dated 30/3/2013 under the provisions of section 143(3) r.w.s. 153A of the Act was erroneous as well as prejudicial to the interest of Revenue, as to that extent there is a loss of Revenue. 2.2 It was further submitted by Ld. AR that it was pleaded before Ld. CIT that assessment order passed under section 153A cannot be considered to be erroneous as well as prejudicial to the interest of Revenue as AO did not have jurisdiction to enter into the question of allowability or otherwise of the additional depreciation on Wind Mill as the question of allowability or otherwise of additional depreciation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 respectively has confirmed the view by following the earlier decision of Mumbai High Court dated 29/10/2010 in the case of CIT, Central, Nagpur vs. Murli Agro Products Ltd. in Income Tax Appeal No.36 of 2009 has held that Division Bench in the case of Murli Agro Product Ltd., does not require reconsideration and it has laid down correct principle of law. Ld. AR while contending so has relied upon para 28 and 37 of the said order, copy of which was placed on our record and was also given to Ld. DR. For the sake of convenience those para are reproduced. 28. In dealing with those arguments, the Division Bench outlined the ambit and scope of the powers conferred by section 153A and observed thus : 8. We find it difficult to accept the above contention raised on behalf of the revenue. The object of inserting Sections 153A, 153B and 153C by Finance Act, 2003 by discarding the existing provisions relating to search cases contained in Chapter XIV B of the Income-tax Act, as stated in the Memorandum explaining the provisions in the Finance Bill 2003 (see 260 ITR (St) 191 at 219) was that under the existing provisions relating to search cases, often disputes were raised on the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153A (1) what stands revived is the pending assessment/reassessment proceedings which stood abated as per section 153A(1). 11) In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for assessment year 1998-99 was finalised on the 29-12- 2000 and search was conducted thereafter on 3-12- 2003. Therefore, in the facts of the present case, initiation of proceedings under Section 153A would not affect the assessment finalised on 29-12-2000. 12) Once it is held that the assessment 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 153A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order passed by AO under section 143(3) r.w.s. 153A was neither erroneous nor prejudicial to the interest of the Revenue. Therefore, it was pleaded by Ld. AR that section 263 has wrongly been invoked by Ld. CIT and his order should be quashed. 3. On the other hand, Ld CIT-DR relied upon the order passed by Ld. CIT. 4. We have heard both the parties and their contentions have carefully been considered. Relevant portion of the order of Ld. CIT(A) has already been reproduced in which he has dealt with the contention of the assessee that assessment order cannot be considered to be erroneous and prejudicial to the interest of Revenue as AO did not have jurisdiction to the make addition on the impugned issue as the same is not based on seized material. Such contention has been rejected only on the ground that there are conflicting views rendered by various High Courts and the contention of the assessee has not been rejected on the ground that the impugned addition is based on seized material. Also there is no material on record to suggest that issue regarding additional depreciation on Wind Mill was based on seized material. Therefore, certainly, this issue is other than the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
