9911796707
TMI Blog2023 (7) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ARAT HIGH COURT] as well as Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] dismissed the appeal filed by the appellant Revenue as held that no addition can be made in respect of completed assessment in absence of any incriminating material - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction under Section 80IA(4) of the Act. 4.2. The assessee challenged the said order passed by the Assessing Officer by filing an appeal before the CIT (A). However, the CIT(A) dismissed the appeal filed by the assessee. 4.3. Against the order passed by the CIT (A), the assessee preferred an appeal before the Tribunal. However, the Tribunal vide impugned order dated 26.08.2022, allowed the appeal filed by the assessee and therefore the appellant Revenue has preferred present appeal under Section 260A of the Act. 5. In both the appeals, the appellant Revenue has proposed the following substantial questions of law: (i) Whether the Hon'ble Tribunal has erred in upholding that any addition during the assessment u/s. 153A has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arified that the u/s. 153A of the Act the assessment needs to be made for both disclosed and undisclosed income? 6. Learned Standing Counsel appearing for the appellant referred the observations made by the Tribunal while passing the impugned order and submitted that the Tribunal has placed reliance upon the decision rendered by this Court in the case of Principal Commissioner of Income Tax-4 vs. Saumya Construction, reported in (2016) 387 ITR 529 (Gujarat). It is submitted that at the relevant point of time, the SLP filed by the Revenue before the Hon'ble Supreme Court against the said order was pending. However, learned Standing Counsel appearing for the appellant Revenue has fairly submitted that now the SLP preferred by the Revenue ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of the hearing, however, learned advocate fairly conceded that the issue represented in the substantial questions of law is answered by the supreme court in Principal Commissioner of Income Tax, Central- 3 vs. Abhisar Buildwell P. Ltd. being Civil Appeal No. 6580 of 2021 and other group of appeals decided on 24th April, 2023. They were the group of appeals filed by the Revenue as well as the assessee respectively. The issue involved in the said appeals before the supreme court was about the scope of assessment under section 153A of the Act. According to the case of the Revenue, the Assessing Officer is competent to consider all the material available on record including the material found during the search and make assessment of 'total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Kabul Chawla (supra), which has been subsequently followed and approved by the other High Courts, referred to hereinabove. One another lead judgment on the issue is the decision of the Gujarat High Court in the case of Saumya Construction (supra), which has been followed by the Gujarat High Court in the subsequent decisions, referred to hereinabove. Only the Allahabad High Court in the case of Pr. Commissioner of Income Tax v. Mehndipur Balaji, 2022 SCC Online All 444 : (2022) 447 ITR 517 has taken a contrary view." (para 7) 4.4 The Kabul Chawla (supra) was quoted for its ratio as under, "In the case of Kabul Chawla (supra), the Delhi High Court, while considering the very issue and on interpretation of Section 153A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search ..... X X X X Extracts X X X X X X X X Extracts X X X X
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