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TMI Blog2019 (1) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961. 3. Brief facts of the case are that the assessee has filed her return of income on 28.9.2008 declaring total income at Rs. 12,50,860/-. A search under section 132 of the Income Tax Act was conducted in the case of Sewani Group on 20.12.2011. Notice under section 153A was issued and served upon the assessee. In response to the notice, the assessee has filed her return income on 28.1.2013 declaring total income atRs.12,66,480/-. The AO found that the assessee has wrongly deducted income tax expenses and refund from the total income instead of adding back the same to the total income. When this fact was brought to the assessee, she admitted the same and addition of Rs. 4,34,488/- was made. The assessee realized her mistake and did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Papers, 380 ITR 571 (Del) iii) CIT Vs. Lata Jain, 384 ITR 543 (Del) 5. On the other hand, the ld.DR relied upon the orders of the Revenue authorities. He contended that both the items which have been claimed as deduction were inadmissible to the assessee. There is no demonstrative evidence, how this mistake has happened. It is very difficult to accept that it was a human error. It can be a deliberate act for claiming undue benefit. With regard to second fold of contention, he submitted that the assessee has not taken any such plea before the Revenue authorities, and therefore, she is precluded from taking such plea. 6. We have considered rival submissions and gone through the record. Hon'ble Delhi High Court in the case of CIT Vs. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 153 A 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 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, when the limit for framing the assessment as provided under section 153 was about to expire, the notice has been issued in the present case seeking to make the proposed addition of Rs. 11,05,51,000/- on the basis of the material which was not found during the course of search, but on the basis of a statement of another person. In the opinion of this court, in a case like the present one, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt interprets a provision, it decides as to what is the meaning of provision and effect of the words used by the legislature. It is a declaration regarding the statute. In other words, judgment declares as to what is the legislative intent at the time of proclamation of law. The declaration is .... "This was the law, this is the law and this is how provision shall construe." Four decisions referred by the ld.counsel for the assessee (supra) are subsequent to the orders of the ld.CIT(A). Scope of section 153A has been explained in these four decisions therefore, it is incumbent upon us to take cognizance all these decisions and take note of additional legal point raised in appeal. 10. In the light of the above judgments, if facts are being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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