AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 684
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.... the action of the Assessing Officer in passing the order u/s.153A without jurisdiction and in the absence of any incriminating materials. 3. Ld. Counsel for the assessee, at the outset submitted that the Assessment Years under consideration i.e. 2005-06, 2006-07 & 2007-08 were not abated as there is no pending proceeding for all these three assessment years when search took place on 18.10.2010. It was submitted that the time limit for issue of notice u/s 143(2) for all these three Assessment Years was also lapsed on 30.09.2006, 30.09.2007 and 30.09.2008 respectively. It was submitted that when the assessments were not abated the additions can be made only based on the seized material and in the absence of any seized material the disallowa....
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....fficer has to take note of such materials while completing the assessment. U/s. 153A of the Act. This contention of the Ld.CIT(A) is totally misplaced. Admittedly all the three assessments i.e. A.Y.2005-06, 2006-07 & 2007-08 are unabated assessments as there was no pending proceedings and the time limit for issue of notice u/s.143(2) for all these three Assessment Years expired on 30.09.2006, 30.09.2007 and 30.09.2008 respectively. Hence the assessments are unabated. When the assessments are unabated the only course left with the Assessing Officer is to make additions/disallowances pursuant to search proceedings based on the seized materials and complete the assessment u/s. 153A of the Act. 6. The Hon'ble Jurisdictional High Court in t....
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....eized material found in the course of search, based on which the impugned addition in the appeal was made and to show whether these assessments have been abated and there is no pending proceedings, Departmental Representative could not bring any incriminating material on record to suggest that the additions/disallowances were made in the impugned assessments were based on incriminating material. The Revenue also did not dispute before us that all these assessments were non-abated assessments. The decision relied on by the Ld. Departmental Representative in the case of Calcutta Knitwears (supra) has no application to the facts of these cases. The question before the Hon'ble Supreme Court was whether the Assessing Officer has to record sa....
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....t also considered the Special Bench decision of the Tribunal in the case of All Cargo Global Logistics Ltd. Vs. DCIT [2012] 18 ITR (Trib.) 106 (Mum), which was affirmed by the Jurisdictional High Court in CIT vs. All Cargo Global Logistics [374 ITR 645]. The Hon'ble Bombay High Court in Gurinder Singh Bawas (supra) held as under:- 3) For the Assessment Year 2005 -06, the respondent - assessee had filed his return of income declaring an income of Rs. 9.61 lakhs. The return of income as filed by the respondent - assessee was processed under Sec. 143(1) of the Act. Admittedly, no notice under Sec. 143(2) of the Act has been issued. Thereafter on 5 January 2007, a search was conducted on the respondent - assessee under Sec. 132 of the Ac....
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....d. The impugned order accepted the aforesaid submission of the respondent- assessee by inter alia placing reliance upon the decision of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. rendered on July 6, 2012 - [2012] 18 ITR (Trib) 106 (Mum) [SB]. The Tribunal in the impugned order further held that no incriminating material was found during the course of the search. Thus the entire proceedings under section 153A of the Act were without jurisdiction and therefore the addition made had to be deleted on the aforesaid ground. The impugned order also thereafter considered the issues on the merits and on it also held in favour of the respondent-assessee. Mr. Kotangale, the learned counsel for the Revenue very fairly state....
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....med dividend. However once it is not disputed by the Revenue that the decision of this court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under section 153A of the Act. The occasion to consider the issues raised on the merits in the proposed questions becomes academic. 6. Respectfully following the above said decision of the Jurisdictional High Court and the decision in assessee's own case by the Coordinate Bench of this Tribunal, we hold that no disallowance will survive as such disallowance was not made based on any incriminating material found in the course of search and all these assessm....