TaxTMI 
TaxTMI 
2019 (4) TMI 695
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....d in not considering the provisions of section 124(3) of the II Act wherein it is provided that if an assessee questions the jurisdiction of an assessing officer he has to raise objection within one month of the issue of notice u/s 143(2). However, no such objection was raised by the assessee and assessee filed reply to questionnaire before the ITO, Ward-3, Bhilwara on 26.05.2016 and before the ITO, Ward-4, Bhilwara is on 27.11.2017. 3. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified quashing the assessment order and in not considering the provisions of section 292BB, wherein it is provided that if an assessee appearing in proceedings and co-operated in any inquiry to an assessment and has not raised any objection about such issue of notice then he shall be precluded from doing so later on after completion of assessment. 4. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in quashing the entire assessment proceedings on technical ground without going in to the merit of the case. 5. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in admitting and deciding t....
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....nd quashed the assessment by holding that in absence of notice issued U/s 143(2) of the Act, the impugned assessment is illegal. The other grounds raised by the assessee were not adjudicated by the ld. CIT(A). Thus, the grievance of the revenue is that once the assessee has filed return of income with the ITO Ward (3), Bhilwara who has duly issued notice U/s 143(2) of the Act and was acknowledged by the assessee by filing the details and written submissions then in absence of any objection raised by the assessee against the jurisdiction of the ITO Ward (3), Bhilwara, the subsequent transfer of the jurisdiction from one ITO to another ITO cannot be challenged by the assessee. Therefore, the assessment proceedings were transferred from one ITO to another ITO at the stage where it was pending before the first ITO and it would resume from that very stage as it was pending at the time of transfer. 4. Before us, the ld CIT-DR has relied upon a series of decisions on this point as under: (i) Abhishek Jain Vs ITO (2018) 94 taxmann.com 355 (Del) (ii) Elite Pharmaceuticals Vs. ITO (2016) 73 taxmann.com 69 (Cal). (iii) Bal Chand Jain & Sons Vs. DCIT (2014) 41 taxmann.com 524 (Allahabad....
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....2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years 23[and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, 22so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made 23[and for the relevant assessment year or years] : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years 23[and for the relevant assessment year or years] : Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years 23[and....
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.... 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the 30[Principal Commissioner or] Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year. The ld CIT-DR has filed a letter of the Assessing Officer whereby it has been stated that the proceedings U/s 153A of the Act has been initiated by issuing the notice on 31/10/2018 and therefore, the assessment proceedings U/s 153A of the Act are pending before the Assessing Officer. The ld counsel for the assessee has not disputed all these facts of initiation of proceedings U/s 153A and the ass....
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....the unsigned document. If it is not in dispute that the document was found in the course of the search of the assessee, then Section 153A is triggered. Once the Section is triggered, it appears mandatory for the Assessing Officer to issue notices under Section 153A calling upon the assessee to file returns for the six assessment years prior to the year in which the search took place. There are contradictions in the order of the Tribunal. We are unable to appreciate how the Tribunal can say in Para 9.6 that no material was found during the search and at the same time in Paragraph 10 deal with the merits of the additions based on the document recovered during the search which allegedly contain the loan transaction with Mohini Sharma. Therefore, both the reasons given by the Tribunal for holding that the assessments made under Section 153A were bad in law do not commend themselves to us. The result is that the first substantial question of law is answered in the negative, in favour of the Revenue and against the assessee." Therefore, it is incumbent upon the Assessing Officer to issue notice U/s 153A of the Act for all the six assessment years falling within the period as prescribed....
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....ion 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years [referred to in this sub-section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate: Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in case where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. (2) If any ....
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....s made. After the introduction of Sections 153A to 153C, a single block assessment concept has been given a go bye and now the AO has been given the power to assess or reassess the 'total income' of the six years in question in separate assessment orders. 18. To consider the rival submissions made at the Bar in the context of the present case and the substantial question of law framed, the scope of 'assessment and reassessment of total income' under Section 153A(1)(b) and the first and second proviso have to be considered. Further, for answering the above issues, guidance will have to be sought from Section 132(1) of the Act, as Section 153A of the Act cannot be read in isolation, inasmuch as, the same is triggered only on account of any search/requisition under Sections 132 or 132A of the Act. 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, such books of account or other documents have to be taken into consideration while assessing or reassessing the total income under the provisions of Section 153A of the Act. Even in a case where undisclosed inc....
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....ch and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. Though such a claim by the assessee for the first time under Section 153A of the Act is not completed, the case in hand, has to be considered at best similar to a case where in spite of a search and/or requisition, nothing incriminating is found. In such a case though Section 153A of the Act would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the same would in that case not result in any addition and the assessments passed earlier may have to be reiterated. 23. The reliance placed by the counsel for the appellant on the case of An....
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....ompletion of an assessment or reassessment by Section 153 has also been done away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. 21. Now there can be cases where at the time when the search is initiated or requisition is made, the assessment or reassessment proceedings relating to any assessment year falling within the period of the six assessment years mentioned above, may be pending. In such a case, the second proviso to sub-section (1) of Section 153A says that such proceedings "shall abate". The reason is not far to seek. Under Section 153A, there is no room for multiple assessment orders in respect of any of the six assessment years under consideration. That is because the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the 'total income' of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the sam....
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....erms holds that the reassessment of the total income of the completed assessments have to be made taking note of the undisclosed income, if any, unearthed during the search and the income that escaped assessments are required to be clubbed together with the total income determined in the original assessment and assessed as the total income. The observations made in the judgment contrasting the provisions of determination of undisclosed income under Chapter XIVB with determination of total income under Sections 153A to 153C of the Act have to be read in the context of second proviso only, which deals with the pending assessment/reassessment proceedings. The further observations made in the context of de novo assessment proceedings also have to be read in context that irrespective of the fact whether any incriminating material is found during the course of search, the notice and consequential assessment under Section 153A have to be undertaken. Thus, the Hon'ble High Court has concurred with the view of Hon'ble Delhi High Court in the case of CIT Vs. Anil Kumar Bhatia (supra) and held that the assessment or reassessment which stand abated in terms of second proviso to Section 1....
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....Ys will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is rela....