TaxTMI 
TaxTMI 
2022 (5) TMI 1220
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder u/s 263 of the Act subsequently setting aside the order passed u/s 153A rws 143(3) rws 153D of the Act for examining the allowability of deduction u/s 80IB of the Act, when there was no scope for making any disallowance by the Assessing Officer in the order passed by him u/s 153A rws 143(3) rws 153D of the Act, since no incriminating documents whatsoever was found during search operations u/s 132 of the Act on the appellant. The action taken by the Ld. Pro CIT, is ab-initio-void and accordingly order passes u/s 263 of the Act is liable to be quashed. 3. The Ld. Pri.CIT, erred in coming to prima-facie conclusion that the appellant is not eligible to claim deduction under section 80IB of the Act. The action of the Ld. Pri. CIT, in coming to such conclusion was not justified in the facts of the case. 4. The ld. PCIT failed to appreciate that the assessment u/s 143(3) for the AY 2012-13 was already completed verifying the 80IB claim of the appellant. 5. There is no incrementing material found during the time of search with regard to the claim of 80IB. 6. That in the facts and circumstances of the case, the order passed by Learned Assessing Officer u/s 153A rws 143(3) rws 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aka High Court in the case of IBC Knowledge Park Private Limited v. CIT reported in 385 ITR 346 had held that unless the material seized during the course of search show undisclosed income and are incriminating in nature, jurisdiction u/s 153C of the Act cannot be assumed. The ratio of the above decision would apply to section 153A of the Act also. The latest judgment of the Hon'ble jurisdictional High Court in the case of Pr.CIT v. M/s.Delhi International Airport Pvt. Ltd. in ITA No.322/2018 & Ors. (judgment dated 29th September, 2021) also followed the judgment of the Hon'ble Karnataka High Court in the case of IBC Knowledge Park Pvt. Ltd. v. CIT (supra). The relevant finding of the Hon'ble jurisdictional High Court in the case of Pr.CIT v. M/s.Delhi International Airport Pvt. Ltd. (supra), reads as follow:- "30. Thus, it is clear that the Assessing Officer while passing the order under Section 153A read with Section 143(3) of the Act, ordinarily cannot disturb the assessment / reassessment order which has attained finality, unless the materials gathered in the course of the proceedings establishes that the finalized assessments are contrary to the material unearthed during the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 A Y on the basis of the findings of the search and any ether material existing or brought on the record of the AO. vi. 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 during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 6.2 The Hon'ble jurisdictional High Court in the case of Pr.CIT v. M/s.Delhi International Airport Pvt. Ltd. (supra) had also referred to the judgment of the Hon'ble Delhi High Court in the case of CIT v. Kabul Chawla (supra) (Refer para 20 of the Karnataka High Court judgment). From the above judicial pronouncements, cited supra, it is clear that the assessments which are not pending and hence doe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of incriminating material in an assessment u/s 153A of the Act. It has been so held in the following decisions: a) CIT v. Sinhgad Technical Education Society 397 ITR 344 (SC) b) CIT Vs IBC Knowledge Park P. Ltd 385 ITR 346 (Kar) c) ACIT Vs Cornerstone Properties Pvt Ltd (ITA No. 1714 to 1717/Bang/2013) d) CIT Vs Kabul Chawla 380 ITR 573 (Del) e) Sree Lakshmi Venkateshwara Minerals v. DCIT 186 ITD 695 (Bang) (Para 31) 9. The Hon'ble Karnataka High Court in the case of Canara Housing Development Co., (2014) 49 taxmann.com 98 in a case relating to proceedings under section 153A of the Act held that once there is a search all past assessment orders will not subsist and it is only the order passed u/s.153A of the Act that will survive. The Hon'ble Karnataka High Court in the case of IBC Knowledge Park (2016) 385 ITR 346 (Karn.), after considering the decision in the case of Canara Housing Development Co., (supra) took the view that any proceedings under section 153C of the Act additions cannot be made without there being incriminating material found during the course of search based on which the addition is made. Recently, the Hon'ble Karnataka High Court in the case of M/s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t would be disturbed without there being any basis for doing so which is impermissible in law. Even in case of a searched person, the same reason would hold good as in case of any other person. As observed by us, detection or the existence of incriminating material is a must for disturbing the assessment already made and concluded. But, at the same time, such am be at three stages: one, at the stage when the reassessment is initiated, the second, at the stage during the course of reassessment and third, at u sage where the reassessment is altered by a different assessment in respect of searched person or in. respect of third party. In this regard, reference may be made to the decision of Apex Court in case of M/s. Calcutta Knitwear (supra) and based on the said decision, the CB DT has also issued circular dated 31.12.2015 vide No.24/ 2015.The relevant extract of the circular for ready reference can be extracted as under: '.........................." As regards the pending assessments are concerned only one assessment shall be made separately for each assessment year on the basis of the income unearthed during search and any other material existing or brought on the record of th....