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TMI Blog2016 (12) TMI 1787X X X X Extracts X X X X X X X X Extracts X X X X ..... elatable to unabated assessments in the facts and circumstances of the case. 3. The brief facts of this issue is that there was a search and seizure operation conducted u/s 132 of the Act on 6.10.2010 in the various premises / offices of the group. The group is primarily engaged in the business of manufacturing and trading of iron & steel and generation of power. Consequent to the search, notices u/s 153A of the Act was issued and assessments were framed u/s 153A of the Act for the Asst Years 2007-08 to 2009-10 by making the following disallowances :- (a) Disallowance of Employees Contribution to PF for the Asst Years 2007-08 (Rs. 4,05,634/-) ; 2008-09 (Rs. 9,31,738/-) and 2009-10 (Rs. 2,13,129/-) (b) Disallowance u/s 14A of the Act for the Asst Years 2008-09 (Rs. 3,12,770/-) and 2009-10 (Rs. 3,25,700/-) 4. The assessee stated that the original assessments for the Asst Years 2007-08 & 2008- 09 were completed u/s 143(1) of the Act and time limit for issuance of notice u/s 143(2) of the Act had expired as on the date of search. Hence those years would fall under the category of unabated assessments and hence the income assessed originally thereon could not be disturbed unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niously with section 153A of the Act. There are three conditions based on which a search action could be initiated u/s 132 of the Act on an assessee. They are :- Section 132(1) - If the concerned authority has in consequence of information in his possession, has reason to believe that - (a) where a person fails to produce the books of accounts and other documents in response to notice u/s 142(1) or summons issued u/s 131(1) of the Act ; or (b) where a person fails to comply with the requirements of summons issued u/s 131(1) of the Act ; or (c) where a person is in possession of any money, bullion, jewellery or other valuable article or thing and such assets represents either wholly or partly income or property which has not been , or would not be, disclosed for the purposes of the Act (hereinafter referred to as the undisclosed income or property) ; then the officer , so authorized could conduct a search and proceed as per the requirements laid down in the said section. He argued that the aforesaid three primary conditions for invoking search proceedings cannot be given a go by while framing section 153A assessments and the instant case falls under section 132(1)(c ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A of the Act which would have a bearing on the determination of total income by considering all the aspects, wherein the existence of incriminating materials does not have any relevance. However, in respect of unabated assessments, the legislature had conferred powers on the ld AO to just follow the assessments already concluded unless there is an incriminating material found in the search to disturb the said concluded assessment. In our considered opinion, this would be the correct understanding of the provisions of section 153A of the Act , as otherwise, the necessity of bifurcation of abated and unabated assessments in section 153A of the Act would become redundant and would lose its relevance. Hence the arguments advanced by the ld DR in this regard deserves to be dismissed. Respectfully following the aforesaid decision, we hold that the additions made in the assessments framed u/s 153A of the Act for the Asst Years 2007-08 and 2008-09 in the absence of incriminating materials found in the course of search relatable to those assessment years, deserve to be deleted. Accordingly, the Ground No. 1 for Asst Years 2007-08 and 2008-09 raised by the assessee are allowed. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribution beyond due date was deductible by invoking the amended provisions of section 43B of the Income Tax Act, 1961 and thus, the issues stand covered in favour of the assessee. It is to be noted that the jurisdictional court while passing the judgement in CIT vs Vijay Shree (supra) had followed the judgement in CIT vs Alom Extrusions Ltd : 319 ITR 306 (SC) wherein it was held that amendment to the second proviso to section 43B of the act as introduced by Finance Act, 2003 was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Mr.Khaitan submits save and except the judgement in CIT vs Gujarat State Road Transport Corporation : 223 Taxman 398 (Guj) wherein a different view has been taken, all other High Courts have taken a view similar to the judgment passed by the Calcutta High Court. Since we find that the issues stand covered by the judgment of the jurisdictional court in CIT vs Vijay Shree (supra) , the question no. 1 is answered in the negative, in favour of the respondent and against the appellant. The question no. 2 is answered in the affirmative, against the appellant and in favour of the respondent. The appeal is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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