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TMI Blog2023 (8) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... found during the course of search place of the assessee. So far as the present case on hand is concerned, this Court would consider the decisions of Abhisar Buildwell (P) Ltd. [ 2023 (4) TMI 1056 - SUPREME COURT ] and in the case of Principal Commissioner of Income Tax, Vadodara-3 Vs. Narmada Chematur Petrochemicals Ltd [ 021 (12) TMI 1081 - GUJARAT HIGH COURT ] X X X X Extracts X X X X X X X X Extracts X X X X ..... income of those six assessment years, and that the scheme of assessment or re-assessment of the total income of a person searched could be brought to tax, if no addition is allowed to be made for those six assessment years in the absence of any seized incriminating material? (c) Whether in the facts and circumstances of the case and in law, the Hon'ble ITAT has erred in dismissing the appeal of the Revenue and affirmed the decision of the Ld.CIT(A) wherein the Ld.CIT(A) in his appeal order has stated that no disallowance of the exemption of LTCG could be made as the same was part of the books of accounts and no incriminating material to the same was found during the course of search and relied upon the judicial pronouncement in the case of Pr.CIT Vs. Saumya Construction Pvt. Ltd., despite the fact that Department has not accepted the decision and Review Petition filed by the Department before the Hon'ble Supreme Court is still pending? (d) Whether in the facts and circumstances of the case and in law, the Hon'ble ITAT has erred in deleting the addition of Rs.22,89,898/- made on account of claim of bogus LTCG u/s 10(38) of the Act, by erroneously observing that no incriminati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding non discriminating material/documents found during the course of search place of the assessee. [9] So far as the present case on hand is concerned, this Court would consider the decisions of the Hon'ble Supreme Court as well as the Co-ordinate Bench of this Court in the case of Principal Commissioner of Income-tax, Central-3 Vs. Abhisar Buildwell (P) Ltd. reported in (2023) 149 taxmann.com 399 (SC) and in the case of Principal Commissioner of Income Tax, Vadodara-3 Vs. Narmada Chematur Petrochemicals Ltd in Tax Appeal No.165 of 2021 decided on 14.07.2021. [10] In the case of Principal Commissioner of Incometax, Central-3 Vs. Abhisar Buildwell (P) Ltd., the Hon'ble Supreme Court has observed in para-7 as under:- "7. At the outset, it is required to be noted that as such various High Courts, namely, Delhi High Court, Gujarat High Court, Bombay High Court, Karnataka High Court, Orissa High Court, Calcutta High Court, Rajasthan High Court and the Kerala High Court have taken the view that no addition can be made in respect of completed/unabated assessments in absence of any incriminating material. The lead judgment is by the Delhi High Court in the case of Kabul Chawla (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment 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." 7.2 Thereafter in the case of Saumya Construction (supra), the Gujarat High Court, while referring the decision of the Delhi High Court in the case of Kabul Chawla (supra) and after considering the entire scheme of block ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is set aside. Thus, any proceeding of assessment or reassessment falling within the, six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A, of the Act. Similarly, sub- section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of, the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the, section can be regarded as a key to the interpretation of the operative portion of, the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning From the heading of section 153, the intention of the Legislature is clear, viz, to provide for assessment in case of search and requisition. When, the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insisting on the statement of substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Court is not empowered to generally decide the appeal under Section 260A without adhering to the procedure prescribed under Section 260A. Further, the High Court must make every effort to distinguish between a question of law and a substantial question of law. In exercise of powers under Section 260A, the findings of fact of the Tribunal cannot be disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in Section 260A must be strictly fulfilled before an appeal can be maintained under Section 260A. Such appeal cannot be decided on merely equitable grounds. 15. An appeal under Section 260A can be only in respect of a 'substantial question of law'. The expression 'substantial question of law' has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial prono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... palpably absurd the question would not be a substantial question of law." 19. Similarly, in Santosh Hazari Vs. Purushottam Tiwari (2001)3 SCC 179 a three judge Bench of this Court observed that: "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, AIR 1962 SC 1314 (2001) 3 SCC 179 and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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