TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 234
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....013 for the assessment year 2003-04 were levied by the Assistant Commissioner of Income-tax CC 17 and 18 under section 271(1)(c) of the Act vide his orders of even date March 21, 2012. 2. The only common issue in all these eleven quantum appeals of the assessees is as regards to the order of the Commissioner of Income-tax (Appeals) confirming the action of the Assessing Officer in treating the gift received as unexplained and assessed as income from other sources despite the fact that no incriminating material/evidence were found during the course of search under section 132 of the Act on the premises of the assessees and the original assessment was not abated. The following are the details of these eleven appeals : Sl. No. Name of the assessee I. T. A. No. Income added/issue in dispute 1. Nenshi L Shah 3577/Mum/2011 Addition of Rs. 10 lakhs with regard to the gift received from Mr. Gayanchand Jain 2. Shantaben Shah 3581/Mum/2011 'do' 3. Shantilal Shah 3584/Mum/2011 'do' 4. Sonalben Shah 3583/Mum/2011 'do' 5. Subhas Shah 3580/Mum/2011 'do' 6. Hitesh Shah 3575/Mum/2011 'do' 7. Lalji K Shah (HUF) 3582/Mum/2011 'do' 8. Talakshi L Nandu 3735/Mum/....
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....e Act. But the Assessing Officer assessed the gifts as income from undisclosed sources of the assessees and the Commissioner of Income-tax (Appeals) also confirmed the same. Aggrieved, all the assessees came in second appeal before the Tribunal. 5. In view of the above given facts, the learned counsel for the assessees argued that the issue of assumption of jurisdiction by the Assessing Officer and making addition while framing the assessment under section 153A read with section 143(3) of the Act, the assessment is without jurisdiction in respect of assessment of gifts already disclosed. Now, before us the learned Commissioner of Income-tax-Departmental representative could not support the orders of the Commissioner of Income-tax (Appeals) or on a query from the Bench could not produce any seized material pertaining to this assessment year relatable to the assessee in regard to the additions made by the Assessing Officer. Once this is the position, the issue is squarely covered in favour of the assessee by the decision of the hon'ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 374 ITR 645 (Bom) 6. We find that this iss....
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....of search. The relevant portion of the judgment reads as under (page 661 of 374 ITR) : "We, therefore, hold that the Special Bench's understanding of the legal provision is not perverse nor does it suffer from any error of law apparent on the face of the record. The Special Bench in that regard held as under (pages 144 to 148 of 18 ITR (Trib) : 'The provision under section 153A is applicable where a search or requisition is initiated after May 31, 2003. In such a case the Assessing Officer is obliged to issue notice under section 153A in respect of 6 preceding years, preceding the year in which search etc. has been initiated. Thereafter he has to assess or reassess the total income of these six years. It is obligatory on the part of the Assessing Officer to assess or reassess total income of the six years as provided in section 153A(1)(b) and reiterated in the first proviso to this section. The second proviso states that the assessment or reassessment pending on the date of initiation of the search or requisition shall abate. We find that there is no divergence of views in so far as the provision contained in section 153A till the first proviso. The divergence starts fr....
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....sment made under sub-section (1) is annulled in appeal etc., then the abated assessment revives. However, if such annulment is further nullified, the assessment again abates. The case of the learned counsel is that this provision further shows that completed assessments stand on a different footing from the pending assessments because appeals, etc. proceedings continue to remain in force in case of completed assessments and their fate depends upon subsequent orders in appeal. On consideration of the provision and the submissions, we find that this provision also makes it clear that the abatement of pending proceedings is not of such permanent nature that they cease to exist for all times to come. The interpretation of the learned counsel, though not specifically stated, would be that on annulment of the assessment made under section 153(1), the Assessing Officer gets the jurisdiction to assess the total income which was vested in him earlier independent of the search and which came to an end due to initiation of the search. The provision contained in section 132(1) empowers the officer to issue a warrant of search of the premises of a person where any one or more of conditions me....
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....her words pending proceedings will not be proceeded with thereafter. The assessment has now to be made under section 153A(1)(b) and the first proviso. It also means that only one assessment will be made under the aforesaid provisions as the two proceedings i.e. assessment or reassessment proceedings and proceedings under this provision merge into one. If assessment made under sub-section (1) is annulled in appeal or other legal proceedings, then the abated assessment or reassessment shall revive. This means that the assessment or reassessment, which had abated, shall be made, for which extension of time has been provided under section 153B. The question now is-what is the scope of assessment or reassessment of total income under section 153A(1)(b) and the first proviso ? We are of the view that for answering this question, guidance will have to be sought from section 132(1). If any books of account or other documents relevant to the assessment had not been produced in the course of original assessment and found in the course of search in our humble opinion such books of account or other documents have to be taken into account while making assessment or reassessment of total incom....