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TMI Blog2023 (12) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2011-12 was finalized on 20.01.2012 and no notice under Section 143(2) of the Act was issued, as such no assessment was pending on the date of search action i.e. 29.10.2013. Also admittedly, in the present case, during the search action against the respondent/assessee no incriminating material was found and the material in the form of statement of Shri B.P. Singh now sought to be relied upon by the appellant/revenue was recorded subsequent to the search action. Therefore, the proposed question of law cannot be admitted as substantial question of law. - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MR. JUSTICE GIRISH KATHPALIA For the Appellant Through: Mr Ruchir Bhatia, Sr. Standing Counsel with Ms Deeksha Gupta, Advocate. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was engaged in development of Special Economic Zone (SEZ) for information technology enabled services in Noida, U.P. On 30.09.2011, the respondent/assessee filed its return of income for the Assessment Year 2011-12 and the same was processed under Section 143(1) of the Act. Thereafter, on 29.10.2013, search and seizure action under Section 132 of the Act was carried out at the premises of the respondent/assessee and accordingly, notice dated 11.11.2014 under Section 153A of the Act was issued, calling upon the respondent/assessee to file return of income consequent to the search action. On 22.03.2016, the respondent/assessee requested the appellant/revenue to treat the original return of income as the return filed in response to notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Tribunal, which appeal was dismissed by way of the impugned order. Hence, the present appeal. 4. As mentioned above, in the course of preliminary hearing learned counsel for the appellant/revenue did not press the proposed question No. 2.1 and opted to confine this appeal only to the extent as to whether the decision of this court in the case titled CIT vs Kabul Chawla, (2015) 61 taxmann.com 412 (Del) would apply also to a case where fresh material or information is received after the date of search and consequently sufficient to reopen the assessment under Section 153A of the Act as laid down in the case titled Dr. A.V. Sreekumar vs CIT, (2018) 90 taxmann.com 355 . On this aspect, learned counsel for appellant/revenue submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment . 7. After examining the views of different High Courts, the Supreme Court in the case of Abhisar Buildwell (supra) approved of the view taken by this court in the case of Kabul Chawla (supra) and held thus: 22. For the reasons stated hereinabove, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra) and the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd those powers are saved . 8. The case of Dr. A.V. Sreekumar (supra), relied upon heavily by the appellant/revenue is completely distinguishable in the sense that in the said case, the material considered in addition to the material unearthed during search action was the documents received by the revenue through Tax Evasion Petition (TEP), filed prior to the search; and that one of the contentions was that the said documents received by the revenue through Tax Evasion Petition could not be relied upon to make additions since the same were not seized in the search conducted. The Kerala High Court in the said case, expressing agreement with the aforesaid legal proposition laid down by this court, observed that the case before it stood on dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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