TaxTMI 
TaxTMI 
2022 (3) TMI 245
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....to add to, alter, amend and /or delete all or any of the foregoing grounds of appeal. 4. The appellant prays before the Hon'ble Tribunal to delete the addition made by the AO to the extent confirmed by the Ld. CIT(A). 3. With regard to Ground Nos. 3 and 4 as the grounds are general in nature, accordingly, these grounds are dismissed. 4. With regard to Ground No. 1 relevant facts are, during the assessment proceedings Assessing Officer observed that assessee has taken unsecured loans from Jayesh K. Sheth and no confirmations in respect of the unsecured loans were submitted in respect of the certain parties. Assessing Officer also issued notice u/s. 133(6) of the Act to these parties. In response, no reply and submissions were received accordingly, he proceeded to make the addition of Rs..32,79,900/- u/s. 68 of the Act with the observation that when the assessee offers no explanation about the nature and sources of the same or explanation is not satisfactory then the said sum is required to be considered as income of the assessee in the previous year. 5. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed detailed submissions. After considering the....
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....om the record that there is no independent finding or material available on record to show that the above said party has lent the money to the assessee as unsecured loans and since Assessing Officer has issued show cause notice u/s.133(6) of the Act for which no response or any confirmations submitted by the assessee before the Assessing Officer, therefore, we direct the assessee to file the confirmations from Jayesh K. Sheth for receipt of Rs..30 lakhs as advance for the flat. At the same time, we direct the Assessing Officer on receipt of confirmation of the above said advance, we direct the Assessing Officer to delete the addition since it is not an unsecured loan and on submission of the above confirmation it proves that assessee has proved the genuineness of the receipt of the above said advance. Accordingly, Ground raised by the assessee is allowed for statistical purpose. 9. With regard to Ground No. 2 the brief facts of the case are that, during the assessment proceedings Assessing Officer observed that assessee has filed return u/s. 139 of the Act and it has declared its income at Rs..3,00,970/-. However, while filing return u/s. 153A of the Act assessee has declared it....
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....d the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (Emphasis Supplied) (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 cases 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 reassessi....
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....under provisions of Section 153A/ 153C of the Act is no more assessment of 'undisclosed income' as was the case under erstwhile Chapter XIVB of the Act. As per the provisions of section 153A/ 153C of the Act, the AO is bound to assess the 'total income' of six assessment years immediately preceding the assessment year relevant to the previous year, in which, search is carried out. Therefore, it is open for an assessee to claim a new deduction while filing return u/s. 153A/ 153C of the Act, even if the deduction was not claimed in the regular assessment/original return. 53. Further, the assessment proceedings u/s. 153A/ 153C of the Act are de novo assessment proceeding. Therefore, irrespective of any claim pertaining to income, expenditure or deduction made in the original return filed u/s. 139 of the Act, the AO or assessee is free to determine/claim the same in the years, for which a notice under Section 153A/ 153C of the Act has been issued and a return has been furnished in response thereto. 54. It is submitted that while passing the order u/s.153A/ 153C r.w.s. 143(3) of the Act, the AO has overlooked the above facts viz, provisions of section 1....
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....y item, which was earlier disallowed, counters the very concept of fresh assessment of total income." 58. Reliance is next placed on the decision of Hyderabad Bench of Hon'ble ITAT in the case of DCIT, Central Circle - 7 v/s M/s. AB Holding Company. In this case the Appellant made fresh claim while filing Return of Income u/s. 153C of the Act. The Assessing Officer disallowed fresh claim on the ground that it was a fresh claim and fresh claim is not allowed and passed the order. Hon'ble Tribunal held that a fresh claim made in the course of assessment u/s. 153A/ 153C of the Act is allowed on merit basis and the merit of the claim has to be examined by the AO. However, neither the Id. CIT (A) has given any specific finding on the merit of the assesse's claim nor has he directed the AG to verify the same on merit. Therefore, Hon'ble ITAT restored the matter to the file of the AG for limited purpose. Hence from the above decision it is abundantly clear that while examining claims made in the course of assessment/Return of Income u/s. 153A/ 153C of the Act, the merits have to be examined afresh by the AG and the claim cannot be denied only on the ground that such c....
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....on 28-09-2009, however, no capital gain on account of such sale of land was declared in the original return. The assessee in the return filed in response to notice u/s.153A declared the long term capital gain and simultaneously claimed deduction of Rs. 31,20,000/- u/s.54F on account of purchase of a flat. 12. We are of the considered opinion that the character of the income remains "long term capital gain" and the assessee can make a new claim in the pending assessment which has not abated. Since the assessee otherwise fulfils the conditions laid down in provisions of section 54F of the I. T. Act, therefore, we are of the considered opinion that the assessee is entitled to claim deduction u/s.54F to the extent of Rs. 31,20,000/-. In this view of the matter we set aside the order of the CIT(A) and allow the appeal filed by the assessee. 13. In the result, the appeal filed by the assessee is allowed Pronounced in the open court on 22-05-2015." 61. We would further like to rely upon decision of Mumbai bench of Hon'ble ITAT in case of Shweta Avarsekar, Mumbai vs AsstCit Cen Cir 8(2) (ITA No.1090/PN/2013). In this case, the assessee is aggrieved by the dec....
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....d above, it is reiterated that the assessment proceedings under section 153A/ 153C of the Act are de novo assessment proceeding. Therefore, irrespective of any claim pertaining to income, expenditure or deduction made in the original return filed u/s. 139 of the Act, the AO or assessee is free to determine/claim the same in the years, for which a notice under Section 153A/ 153C of the Act has been issued and a return has been furnished in response thereto. 64. Accordingly, we most humbly request your Goodself to kindly allow the loss claimed by the Appellant Company while filing return u/s. 153A of the Act and oblige." 10. After considering detailed submissions of the assessee, Ld.CIT(A) dismissed the ground raised by the assesse with the observation that the claim of the assessee is not tenable as per provisions of section 153A, it cannot take advantage of a search operation mounted on it for detecting the undisclosed income and make a fresh claim in the return of income filed u/s. 153A of the Act. 11. Aggrieved assessee is in appeal before us and at the time of hearing Ld. AR submitted that the issue involved is covered in favour of the assessee and she brought to ....