TaxTMI 
TaxTMI 
2015 (6) TMI 1120
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....reciated that original assessment order passed u/s. 143(3) of the Act has neither been abated nor merged with order passed u/s. 153A of the Act. 3. The Ld. CIT has erred in facts and in law in not appreciating that the Assessing Officer, while passing the assessment order u/s. 153A of the Act, had no jurisdiction to disallow the additional depreciation on windmill and, hence, the Commissioner is not justified in revising the order in this regard. 4. The Ld. CIT has erred in facts and in law in holding that the Assessing Officer did not consider the issue of eligibility of additional depreciation on windmill and the same has resulted in loss of revenue. 5. The Ld. CIT has failed to appreciate that the additional depreciation on windmill has been correctly claimed as per the provisions of the Act and rightly allowed by the Assessing Officer. 2. It was submitted by Ld. AR that essentially Ground No.1 is relevant to dispose of the present appeal and the same may be considered for adjudication. Ld. AR pointed out that the chronology of the events, which has been submitted alongwith paper book at page-1 and for the sake of convenience the same is reproduced below: S.No. Date Ev....
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.... which for the sake of convenience is reproduced below: 12. It is further contended by the assessee that the proceedings are not based on the seized material found during the course of search and therefore no addition could have been made by the present AO on merits as well. I have carefully examined the contention of the assessee in this connection as well as the case laws cited by the assessee. In this regard, it is seen that the said issue has not attained finality before the Apex Court and therefore, contradictory judgement of different High Courts on the issue of taxability of other items as well. In fact it is not be out of place to mention that Kamataka High Court in the case of Canara Housing Development Co. [ ITA No. 38/2014 dated 25/07/2014] has considered several judgments on this issue and still held the issue in favour of the revenue. I am therefore, unable to accept this contention of the assessee and accordingly, in order to keep the issue alive till the decision of the Honourable Apex Court, constrained to hold that the citations, cited by the assessee, are sub-judice. In view of the same, this objection of the assessee is not found tenable at this juncture" 2.3 ....
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.... etc. which led to prolonged litigation. To overcome that difficulty, the legislature by Finance Act 2003, decided to discard Chapter XIV B provisions and introduce Sections 153A, 153B and 153C in the IT Act. 9) What Section 153A contemplates is that, notwithstanding the regular provisions for assessment/reassessment contained in the IT Act, where search is conducted under Section 132 or requisition is made under Section 132A on or after 31/5/2003 in the case of any person, the Assessing Officer shall issue notice to such person requiring him to furnish return of income within the time stipulated therein, in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made and thereafter assess or reassess the total income for those assessment years. The second proviso to Section 153A provides for abatement of assessment/reassessment proceedings which are pending on the date of search/requisition. Section 153A (2) provides that when the assessment made under Section 153(A)(1)is annulled, the assessment or reassessment that stood abated shall stand revived. 10) Thus on a plain reading o....
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....t case, there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceedings which would show that the relief under Section 80 HHC was erroneous. In such a case, the A.O. while passing order under section 153A read with Section 143(3) could not have disturbed the assessment order finalized on 29.12.2000 relating to Section 80 HHC deduction and consequently the CIT could not have invoked jurisdiction under Section 263 of the Act. ............................................................................................................ 37. We do not see as to how while allowing the appeal of the assessee and setting aside the order of Commissioner under section 263 could the judgment be said to be laying down a proposition as canvassed by Mr. Pinto. True it is that the assessee which has to be made in pursuance of the notice in relation to the six years. An order will have to be made in that regard. While making the order the income or the return of income filed for all these assessment years is to be taken into account. A reference will have to be made to the income disclosed therein. However, the scope of enquiry, though not c....