TaxTMI 
TaxTMI 
2016 (4) TMI 126
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.... Consequent to this, notice under section 153A of the Act was issued on 15.03.2013. For the assessment year 2007-08, the assessee has replied vide her letter dated 12.04.2013 that the return filed on 14.05.2008 be treated as return filed in response to the notice under section 153A of the Act. For the assessment year 2008-09, it was stated vide her letter dated 12.04.2013 that the return filed on 11.12.2009 be treated as return filed in response to the notice under section 153A of the Act. For the assessment year 2009-10, it was stated vide her letter dated 12.04.2013 that the return filed on 15.02.2010 be treated as return filed in response to the notice under section 153A of the Act. For the assessment year 2010-11, it was stated vide her letter dated 12.04.2013 that the return filed on 01.04.2011 be treated as return filed in response to the notice under section 153A of the Act. For the assessment year 2011-12, it was stated vide her letter dated 12.04.2013 that the return e-filed on 30.09.2011 be treated as return filed in response to the notice under section 153A of the Act. For the assessment year 2012-13, in response to the notice under section 153A of the Act, the assessee ....
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....the ld. Counsel for the assessee is that out of the assessment years 2007-08 to 2013-14, the assessment for the assessment years 2008-09 and 2009-10 were completed under section 143(3) of the Act. Hence, the assessments, which are already completed, either under section 143(1) or under section 143(3) of the Act, cannot be reopened. In other words, it was submitted that if an order already in existence, having obviously passed prior to incision of search/requisition, the Assessing Officer, if empowered to reopen those proceedings and reassess the total income taking note to the undisclosed income, if any, unearthed during the search. According to the ld. Counsel for the assessee, the assessment reopened for the assessment years 2007-08 to 2010-11 cannot be survive as there was no incriminating documents found during the course of search relating to these assessment years. The addition made on these assessment years is only an ad-hoc addition by treating the agricultural income as non-agricultural income in arbitrary basis without reference to any seized material or incriminating material found during the course of search and the assessments are not pending as on the date of search a....
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....over. Being so, no assessment or reassessment or pending assessment at the time of search carried out on 15.05.2012. In respect of these assessment years, section 153A empowers the Assessing Officer to complete the assessment for 6 consequent assessment years consequent to search action under section 132 or requisition under section 132A of the Act. It is also to be noted that the assessment as well as reassessment are possible in the case of pending assessment. Further, when the assessments are already completed and no assessments are pending at the time of issue of notice under section 153A, reassessment can be made only if any incriminating material found during the course of search and item concluded in earlier assessment cannot be considered in the reassessment under section 153A of the Act. In other words, the scope of assessment under section 153A can be summarized diagrammatically as under: Image No. 1 7. Thus, as seen from the above chart, when nothing incriminating is found in the course of search or requisition, then the question of reassessment of already completed assessment does not arise. The underline purpose of making assessment of a total income under sectio....
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....lready been finalized. Thus, in this case, no addition can be made over and above the returned income which has become final prior to the date of search and there is no material found at the time of search. The aforesaid Mumbai Special Bench decision of the Tribunal in All Cargo Global Logistic Ltd. (supra) has also been reaffirmed and applied by the Mumbai Benches of the Tribunal in the case of Gurinder Singh Bawa v. DCIT [2012] 28 Taxman.com 328 (Mum.). The relevant observation of the Tribunal is reproduced herein below:- "6. We have perused the records and considered the rival contentions carefully. The dispute raised is regarding legal validity of addition made by AO under section 153A of the Act. Under the provisions of section 153A, in all cases, where search is conducted under section 132 of the Act, AO is empowered to assess or reassess total income of six assessment years preceding the assessment year in which search was conducted. The section also provides that assessment or reassessment relating to any assessment year falling within period of six assessment year if pending on the date of initiation of search shall abate. There have been divergent views regarding....
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....ade only on the basis of incriminating material found during search." 10. Further, the Coordinate Benches of the Tribunal in the case of Sree Gopalakrishna Fabrics v. DCIT in I.T.A. Nos. 788 to 794/Mds/2015 vide order dated 27.11.2015 has taken similar view. 11. Moreover, in the case of Jai Steel (India) v. ACIT [2013] 259 CTR 281, the Hon'ble Rajasthan High Court has held that in case nothing incriminating material is found on account of search of search or requisition then the question of reassessment of concluded assessment does not arise. If any books of account or other documents relevant to the assessment has not been produced in the course of original assessment and found in the course of search, such books of account or other documents are to be taken into consideration while assessing or reassessing the total income under the provision of section 153A of the Act. The requirement of assessment or reassessment under section 153A had to be read in the context of section 132 or under section 132A of the Act in as much as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of concluded assessment does not ari....