TaxTMI 
TaxTMI 
2021 (3) TMI 1124
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.... 573 (Del.). 2. The Ld. CIT(A) has erred on facts and in law in deleting the addition of Rs. 3,84,01,375/- made by the AO on account of disallowance under Section 14A. 3. That the appellant craves for the permission to add, delete or amend grounds of appeal before or at the time of hearing of appeal. (ii) Grounds of Cross Objection of the assessee: 1. In law and in the facts and circumstances of the case, the learned CIT (A) has grossly erred by not adjudicating on the ground raised by the respondent challenging the initiation of proceedings u/s 153 A when no search has been conducted on the respondent, as a) the respondent was merely joint owner of the searched lockers namely, 733 and 852 of Corporation Bank and was not intimated about search, even no copy of Panchnama was served on completion of the search, b) no inquiry of any nature, during the period from 30.01.2013(date of search) to 10.03.2015(service of notice u/s 153A), has been carried out either by the Investigating Division or by the Assessing Officer, till the initiation of proceedings u/s 153 A of the Act. 2. In law and in the facts and circumstances of the case, t....
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....oceedings were pending in the relevant assessment year and the proceeding under section 147 which have been claimed to be pending by the Assessing Officer, were actually initiated on 23/10/2013 i.e. beyond the date of the search. The Ld. CIT(A) has also observed that there is no reference of any incriminating material as far as addition under section 14A of the Act is concerned. Accordingly, the learned CIT(A) allowed the appeal of the assessee. Aggrieved, the Revenue is before the Tribunal by way of this appeal and the assessee has also raised its cross objections. 3. Before us, the parties appeared through Video Conferencing facility and filed documents electronically. 4. The learned DR relied on the order of the Assessing Officer. She referred to the remand report as reproduced in para 3.7 of Ld. CIT(A), where the Assessing Officer has mentioned the date of the search as 23/01/2016. She submitted that in case search is conducted on 23.01.2016, the reassessment proceedings initiated on 14/11/2013 are validly pending as on date of search, and therefore ratio in the case of Kabul Chawala (supra) would not be applicable over the facts of the instant case. 5. On the other ha....
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....s 148 after the date of search was ab-initio void. From the facts discussed above, it is evident that the search pertaining to which the assessment u/s 153A has been initiated in this case was conducted on 30/01/2013. The appellant has contended that on this date no proceedings u/s 143(2) or 148 were pending and in these circumstances, the notice u/s 148 issued on 23/10/2013 is abinitio avoid. To examine the appellant's contention, it may be relevant to refer to the second proviso to section 153 A which reads as under:- "Provided further that assessment or re-assessment, if any, relating to any assessment year falling within the period of six AYs referred to in this subsection pending on the date of initiation of search u/s 132 or making of requisition u/s 132A, as the case may be shall abate. b. The plain reading of the aforesaid proviso shows that for any proceedings I of assessment or re-assessment to abate as the consequence of search u/s 132, the same should be pending on the date of initiation of search. In the appellant's case, it is undisputed fact on record that no proceedings were pending u/s 143(2) or u/s 148 on the date of search i.e. 30/01/2013. There....
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....e Supreme Court vide order dated 07/12/2015 (2016) 380 ITR (St) 64 - Ed. 3.8 Keeping in view the aforesaid factual and legal position the disallowance made by the AO is deleted. This ground of appeal is allowed." B. The facts for the current year i.e. AY 2009-10 are the same as the proceedings u/s 153A relate to the same search. Keeping in view the factual and legal position discussed above, the addition made by the AO is deleted" 6.4 We have perused the Panchnama of search operation in the case of the locker in the joint name of the entity merged with the assessee and it is evident from said Panchanama that the search was conducted on 30/01/2013. Since the notice under section 148 was issued on 23/10/2013, which is after the date of the search, it is evident that as on the date of the search no assessment/ reassessment proceedings were pending in the instant assessment year. The Learned Assessing Officer has wrongly considered the pendency of the assessment proceeding on the date of the issue of the notice under section 153A of the Act. 6.5 The Tribunal in the case of the assessee in assessment year 2008-09 in ITA No.5558/Del/2017 has deleted the identical ....