AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 399
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.... Tax (Appeals) erred in confirming and the learned Assessing Officer erred in passing the assessment order u/s 153A and the same is without jurisdiction and ban in law. 2. The learned Commissioner of Income Tax (Appeals) erred in confirming and the learned Assessing Officer erred in making addition of Rs. 1,69,68,750/- u/s 2(22)(e) in assessment order u/s 143(3) r.w.s. 153A and the same is without jurisdiction and bad in law. 3. The learned Commissioner of Income Tax (Appeals) and Assessing Officer erred in determining amount of deemed dividend at Rs. 1,69,68,750/- 4. The appellant prays that: i) assessment order u/s 143(3) r.w.s. 153A may be cancelled as without jurisdiction and bad in law, ii) addition of s.1,69,68,750/- u/s 2(22)(e) may be deleted as being without jurisdiction and bad in law, iii) any other relief your honours may deem fit." 3. Since the aforesaid additional grounds raised by the assessee are purely legal grounds arising out of facts and material on record and does not require any investigation or verification of facts therefore, in view of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd. Vs. CIT reported in (19....
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.... search relating to the transaction of deemed dividend. The Ld. AO he has noted the facts about receiving of the payments by the assessee from M/s. Lotus investment, which was a division of M/s. La-fin Financial Services Pvt. Ltd. in which the assessee held 50% of share, from the balance sheets and records already filed along with the return of income. Since the assessment for the A.Ys. 2002-03 & 2004-05 had attained finality before the date of search and does not get abated in view of second proviso to section 153A, therefore, without there being any incriminating material found at the time of search, no addition over and above the income which already stood assessed can be made. This proposition he said, is squarely covered by the decision of All Cargo Global Logistics Ltd. Vs. DCIT reported in (2012) 137 ITD 287 (SB) (Mum). Even the Hon'ble jurisdictional (Bombay) High Court in the case of CIT Vs. M/s. Murli Agro Products Ltd. ITA No. 36 of 2009 order dated 29.10.2010, has clearly held that, once the assessment has attained finality before the date of search and no material is found in the course of proceedings u/s 132(1), then no addition can be made in the proceedings u/s 153A....
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....y be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to 'be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided 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:..................... 8. From the perusal of the aforesaid provision, it is evident that, where search has been initiated u/s 132 or requisition has been made under section 132A, it is incumbent upon the assessing officer to issue notices requiring the person searched to file return of income in respect of each assessment year falling within six assessment ye....
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.... Thus on a plain reading of Section 153A of the Income-tax Act, it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalized for those assessment years covered' under Section 153A of the Act. By a circular No.8 of 2003 dated 18-9-2003 (See 263 ITR (St) 61 at 107) the CBDT has clarified that on / initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings finalized assessment/ against reassessment shall not abate. It is only because, the finalized assessments/reassessments do not abate, the appeal, revision or rectification pending against finalized assessments/reassessments would not abate. Therefore, the argument of the revenue, that on initiation of proceedings under Section 153A, the assessments/reassessments finalized for the years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153....
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....s income which was not disclosed or would not have been disclosed. The purpose of second proviso is also very clear, in as much as once an assessment or reassessment is 'pending' on the date of initiation of search or requisition and in terms of s. 153A a return is filed and the AO is required to assess the same, there cannot be two assessment orders determining the total income of the assessee for the said assessment year and therefore, the proviso provides for abatement of such pending assessment and reassessment proceedings and it is only the assessment made under s. 153A of the Act that would be the assessment for the said year. 23. The necessary corollary of the above second. proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and. such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In such cases, where the assessment already stands completed, the AO can reopen the assessments or reassessments already made without following the provis....