TaxTMI 
TaxTMI 
2018 (12) TMI 1673
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....nsideration having bearing upon the existence of any undisclosed income in the hands of the appellant, there was no valid jurisdiction for legally initiating proceedings u/s. 153A of the Act in the case of the appellant and as such the illegal notice issued u/s. 153A and the consequent order passed are liable to be quashed/annulled or cancelled. 2. Without prejudice to the above, on the facts and in the circumstances of the case as well as in law, the impugned assessment order so passed by the Assessing Officer is liable to be quashed having been passed in violation of set procedure in law inasmuch as that no regular assessment for the year under consideration was pending within the meaning of 2nd proviso to section 153A (1) of the Act. 3. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and sustaining impugned addition of Rs. 17,48,083/- on account of dividend income from Srilankan Company, when the same is wholly unwarranted. 4. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in reject....
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..... On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing concessional rate of tax u/s. 115BBD of the Act on the dividend received from Srilankan company when the same is legally available in the case of the appellant. 6. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing credit of tax paid in Srilanka on dividend under foreign tax credit system of DTAA, when she ought to have allowed such relief." 4. In ITA No.81/Ahd/2018 for A.Y. 2010-11 the Grounds of appeal are as follows: 1. On the facts and in the circumstances of the case as well as in law the assessment order passed by the A.O. is arbitrary, illegal and bad in law in as much as that in absence of any evidence or incriminating material found and seized, for the assessment year under consideration having bearing upon the existence of any undisclosed income in the hands of the appellant, there was no valid ....
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....ssing Officer is liable to be quashed having been passed in violation of set procedure in law inasmuch as that no regular assessment for the year under consideration was pending within the meaning of 2nd proviso to section 153A (1) of the Act. 3. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and sustaining impugned addition of Rs. 18,28,711/- on account of unaccounted investment in shares, when the same is wholly unwarranted. 4. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing concessional rate of tax u/s. 115BBD of the Act on the dividend received from Srilankan company when the same is legally available in the case of the appellant. 5. On the facts and in the circumstances of the case as well as in law the Ld. CIT(A) has grossly erred in rejecting the contention of the appellant and not allowing credit of tax paid in Srilanka on dividend 6. In ITA No.83/Ahd/2018 for A.Y. 2012-13 the Grounds of appeal are as follows: ....
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.... A.Y. 2013-14 the Grounds of appeal are as follows: "1. On the facts and in the circumstances of the case as well as in law the assessment order passed by the A.O. is arbitrary illegal and bad in law in as much as that in absence of any evidence or incriminating material found and seized, for the assessment year under consideration having bearing upon the existence of any undisclosed income in the hands of the appellant, there was no valid jurisdiction for legally initiating proceedings u/s. 153A of the Act, in the case of the appellant and as such the notice issued u/s. 153A and the invalid order passed are liable to be quashed/annulled or cancelled. 2. Without prejudice to the above, on the facts and in the circumstances of the case as well as in law, the impugned assessment order so passed by the Assessing Officer is liable to be quashed having been passed in violation of set procedure in law inasmuch that firstly a notice u/s. 153A was issued on 21/10/2013, secondly a notice u/s. 143(2) was issued on 16/12/2013 referring to ROI filed on 09/12/2013, thirdly a notice u/s. 143(2) was issued on 08/09/2014 referring to ROI filed on 29/09/2013, fourthly in su....
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.... the ld. AO could frame the search assessment u/s 153A of the Act by making certain additions without any incriminating materials found during the course of the search. 11. The brief facts appearing, in this case, are that there was a search and seizure operation conducted u/s 132 of the Act in the Rubamin Group of cases on 26.04.2013 which also includes the premises of assessee. As a result of the search the six assessment years of the assessee were re-opened. 11.1 The details of notices issued by the Revenue and returns filed by the assessee are as under: Assessment year Date of original return of filing Last date to issue notice u/s 143(2) Date of issuance of notice u/s 153A(a) Date of return filing in response tonotice 153A(a) u/s 2008-09 29/09/2008 30/09/2009 21/10/2013 09/12/2013 2009-10 24/09/2009 30/09/2010 21/10/2013 09/12/2013 2010-11 25/09/2010 30/09/2011 21/10/2013 09/12/2013 2011-12 28/09/2011 30/09/2012 21/10/2013 09/12/2013 2012-13 15/09/2012 30/09/2013 21/10/2013 09/12/2013 2013-14 29/09/2013 30/09/2014 21/10/2013 09/12/2013 ....
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.... DR, on the other hand, argued vehemently on the validity of the assessment completed u/s 153A/143(3) of the Act placing reliance on the orders of the subordinate authorities. 15.1 The ld. DR in relation to the AY 2009-10 also requested that the matter for the valuation of shares can be set aside to AO for fresh verification. 16. We have perused the case record, analyzed the facts and circumstances of the case and heard the rival contentions. We find that the legal issue questioning the validity of the Section 153A assessment and additions made thereon, in respect of all the assessment years in the absence of incriminating materials was raised for the first time before this Tribunal. 16.1 We find that the legal grounds raised by the assessee go into the very crux of the matter and does not involve any fresh investigation of facts. Hence we deem it fit and proper to admit the same even though the lower authorities have not appreciated in totality. Reliance in this regard is placed in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC). 16.2 We find that it would be necessary to address the preliminary issue, whether assessme....
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....e 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 relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed....
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....In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act." 19. In respect of abated assessments, fresh assessments are to be framed by the AO u/s 153A of the Act which would have a bearing on the determination of the total income by considering all the aspects, wherein the existence of incriminating materials do not have any relevance. However, in respect of unabated assessments, the legislature has conferred powers on the ld. AO to follow the assessments already concluded unless incriminating materials are found in the course of the search. 19.1 That for the reasons stated above and on the basis of various judicial pronouncements, we hold that the disallowances made for the Assessment years i.e. 2008-09, 2009-10, 2010-11 & 2011-12, which were unabated/concluded assessments as on date of search cannot be made in the search assessments in the absence of any incriminating material found in the course of search and accordingly all those additions are dire....
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....AT has also directed the ld. DR vide order sheet dated 5-9-2018 to find out whether the assessee received dividend income during the year. But the ld. DR failed to bring anything on record on this aspect till the date of hearing. Therefore we proceed to adjudicate the same on the basis of available records. 23.3 In this regard, we note that 'M/s Navam Lanka limited' for the year ending 31st March 2012, has declared the dividend on 27/09/2012, i.e. in next financial year (2012-13) as evident from the warrant placed on page 78 of the paper book. The relevant extract reads as under: NAVAM LANKA LIMITED PLOT 27 VV MEPZ. MIRIGAMA EXPORT PROCESSING ZONE. MIRIGAMA, GAMPAHA Mrs. Asha Mital, 126, Shakti Nagar- -9,Rajasthan, Local : Plot No. 27 A ' MEPZ, Mirigama Process Export Processing Zone Mirigama Date 27/09/2012 Warrant No. 25I12TS002773 Shares 78.403 Dear Sir/Madam, FINAL-DIVIDEND OF RS.55 PER SHARE FOR THE YEAR ENDED 31st (MARCH 2012 We have pleasure i....
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....garding the amount determined by the AO for the dividend income in the year under consideration. In this regard we find that the AO has taken the amount of dividend i.e. 43,12,165 for the year ending 31-3-2012 as recorded in the dividend warrant dated 27-9-2012 which was mentioned in Sri-Lankan currency. Thus the AO has also erred in treating the amount recorded in Sri-Lankan currency in dividend warrant as dividend income of the assessee. The copy of the dividend warrant has already been reproduced above. 24. In view of the above, we are of the view that addition made on account of dividend income for the year under consideration is on without any basis and documentary evidence. 24.1 Once we have held that the assessee has not received any dividend income in the year under consideration, the other grounds of appeal raised by the assessee become academic and do not require any separate adjudication. Accordingly, we direct the AO to delete the addition. Hence the ground of appeal of the assessee is allowed. 25. In the result the appeal of the assessee is partly allowed. 26. Now coming to the ITA No. 84/AHD/2018 for the assessment year ....