TaxTMI 
TaxTMI 
2014 (7) TMI 254
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....hased it for a sum of Rs. 14,32,674/- which was subsequently sold by the assessee in this year for a sum of Rs. 9,90,050/- resulting into capital loss as shown in the return. In the absence of any Conveyance deed, etc. filed, the AO noticed that the plot was sold prior to 15.06.2002. As the assessee applied cost indexation by showing that the plot was acquired in financial year 2000-01, the AO held that the said plot was held for less than 36 months and there was no question of computing any long-term capital gain or loss. Since the assessee did not file Conveyance deed, etc., the AO held that the whole matter was a story made up by the assessee to introduce his own unaccounted funds as sale of the property. This led to an addition of Rs. 9,90,050/- made u/s 68 of the Act. The ld. CIT(A) upheld the assessment order. The assessee is aggrieved against the sustenance of such addition. 3. The ld. Counsel for the assessee raised an additional ground to the effect that since no incriminating evidence was found at the time of search relating to this transaction, the resultant addition so made was not called for u/s 153A of the Act. The ld. AR was fair enough to concede that this issue wa....
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....posed this contention by relying on certain decisions including SSP Aviation Ltd. vs. DCIT (2012) 252 CTR (Del) 291; CIT vs. Chetan Das Lachman Das (2012) 254 CTR (Del) 392 ; and CIT vs. Anil Kumar Bhatia (2013) 352 ITR 493 (Del). In the light of the above decisions rendered by the Hon'ble jurisdictional High Court, the ld. DR submitted that the Tribunal orders relied on by the ld. AR were required to be discarded and the view taken by the Hon'ble jurisdictional High Court followed. 6. We have absolutely no doubt in our mind that the superior wisdom of Hon'ble High Court overrides the inferior Tribunal opinion. It goes without saying that when a particular issue is decided by the Hon'ble High Court, contrary view taken by the Tribunal should bow down to give way to the opinion expressed by the Hon'ble High Court. The only caveat in this regard is that the question for consideration by both the judicial forums must be same. If the Hon'ble High Court has decided another aspect of the matter which is different from that decided by the Special Bench of the Tribunal, then, obviously, there can be no occasion for the Division benches of the tribunal in throwing to the winds the decision....
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.... of SSP Aviation Ltd. (supra) was altogether different from the one which is under our focus in the extant appeal. Presently, we are not required to determine as to whether any satisfaction was properly recorded in the case of person other than the person searched. On the contrary, we are dealing with assessment u/s 153A, being the assessment in the case of person searched. In that view of the matter, we find that the reliance of the ld. DR on this judgment is misplaced. 8. Now we turn to the other judgment relied by the ld. DR in the case of Chetan Das Lachman Das (supra). Referring to para 11 of this judgment, the ld. DR contended that the condition precedent for computing undisclosed income on the basis of incriminating material found during the course of search was in the context of Chapter XIV-B of the Act which envelopes a special procedure for assessment of search cases. The ld. DR contended that section 153A which provides for an assessment in the case of search, does nowhere stipulate that a search assessment has to be made on the basis of evidence found as a result of search, etc. He emphatically relied on several judgments including State of Kerala VS. Mathai Verghese (....
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....ided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate : ..............' 10. A careful perusal of the above provision brings to light that where a search is initiated u/s 132 of the Act etc., the A.O shall issue a notice requiring the person searched etc. to furnish his return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. Once such returns are filed, the Assessing Officer has to assess or reassess the total income of such assessment years. The decisive words used in the provisions are to 'assessee or reassess the total income'. Thus, it is manifest that a duty has been cast on the Assessing Officer to determine the 'total income' of the assessee for such six assessment years. Obviously 'total income' refers to the sum total of income in res....
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....uch a provision in the Act. We find this contention as bereft of merits. The major reason for our this decision is that we are not trying to legislate by inserting such a provision in the language of section 153A. In fact, the special bench of the tribunal in holding so has interpreted the provision in its existing form in this way so as to prohibit the making of any addition in the assessment for those years the assessment of which was not pending on the date of search. This view has been followed in several cases including Kabul Chawla (ITA No. 779/D/2013), to which one of us, namely , the AM is party, Thus, we do not find any merit in the contention raised on behalf of the Revenue that the tribunal should not legislate. As it is a case of interpretation of the provision and not that of legislating, we find no force in the contention advanced on behalf of the Revenue. The same is jettisoned. 12. The next judgment relied on by the ld. AR is Anil Kumar Bhatia (supra). In that case, the Hon'ble High Court held that even if assessment order had already been passed in respect of one or any of the six relevant assessment years either u/s 143(1)(a) or 143(3) prior to the initiation of ....
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....#39;total income' in respect of the assessment years for which the assessments are already completed on the date of search, shall not be influenced by the items of income other than those based on the material unearthed during the course of search. There is not and cannot be any quarrel over the proposition that the Assessing Officer has no option but to determine the total income of the assessee in respect of the relevant six assessment years. However, the scope of such determination of total income is different in respect of the years for which the assessments are pending vis-vis the years for which assessments are non-pending. In respect to the assessment years for which the original assessments have already been completed on the date of search, the total income shall be determined by restricting additions only to those which flow from incriminating material found during the course of search. If no incriminating material is found in respect of such completed assessment, then the total income in the proceedings u/s 153A shall be computed by considering the originally determined income. If some incriminating material is found in respect of such assessment years for which the a....