TaxTMI 
TaxTMI 
2015 (9) TMI 188
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....ssessee submitted that, with the benefit of finding judicial precedents non available, this appeal can be disposed of on the short legal ground that when no incriminating material is found during search operations, assessment framed earlier cannot be disturbed in the course of proceedings under section 153A. It is submitted that if this plea of the assessee is upheld, all other issues raised in the appeal will be rendered academic. We are thus urged to take up this issue first. Learned Departmental Representative leaves it to the bench as to whether this issue can be taken up first, though he has arguments to make on this issue. It is in this backdrop that we take up this issue first. 3. Briefly stated, the relevant material facts are like....
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....of the Assessing Officer, on the jurisdictional issue, by observing as under: "4.4 In the instant case, it is not denied that a search has taken place. In view of the above, it is clear that the notice issued u/s 153A of the IT Act, 1961, was valid and assessment made thereafter cannot be held to be illegal on the ground that there no incriminating material in relation to the disallowance made was surfaced in the course of search. 4.5 The reliance of the appellant on the decision of the decision of the Gujarat High Court in the case of Meghmani Organics Ltd. is misplaced. In that case the AO had initiated proceedings u/s 153C and not u/s 153 A. In the case of the AO invoking the provisions of section 153C it is incumbent on him to receiv....
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.... Delhi High Court in the case of CIT vs. Anil Kumar Bhatia dated 7th August, 2012 (supra)." 4. The assessee is not satisfied and is in further appeal before us. 5. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 6. We have noted that, as learned counsel fairly accepts, the grievance of the assesse is not against framing of the assessment under section 153A but is confined to making of any additions or disallowances other than on the basis of incriminating material found during search operations. In effect thus, additions cannot be made other than on the basis of incriminating material found during search operations. That plea stands ....
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.... :- "20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. ..." 13. The above extracted observations of the Hon'ble High Court, which are though obiter dicta, make the point clear that where an assessment order has already been passed for a year(s) within the relevant si....
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.... 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 assessment is not pending, then the 'total income' would be determined by considering the originally determined income plus income emanating from the incriminating material found during the course of search, in the other scenario of the assessments pending on the date of search which would abate in terms of second proviso to sec. 153A(1), the total income shall be computed afresh uninfluenced by the fact whether or not there is any incriminat....