2022 (9) TMI 477

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.... by the Income Tax Appellate Tribunal, Lucknow Bench 'B', Lucknow. Amongst various substantial questions of law framed in the memo of appeal, learned counsel for the appellant-Income Tax Department submits that the following substantial questions of law are arising for consideration in the present appeal:- (i) Whether assessment or re-assessment under Section 153-A of the Income Tax Act, 1961, can be framed only on the basis of incriminating material found during the course of search under Section 132 of the Act. (ii) Whether assessment or re-assessment under Section 153-A of the Income Tax Act can be framed where no incriminating material has been found in the search under Section 132 of the Act. Learned cou....

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....ssee not only for the undisclosed income, which was found during the search operation but also with regard to the material that was available at the time of original asseessment. (2) Whether in view of the law laid down by this Hon'ble Court in the case of CIT Vs. Raj Kumar ( supra), the Assessing Officer would be competent to re-open the assessment proceedings already made and determine the total income of the assessee ; the Assessing Officer, while exercising the power under Section 153A of the Act, would make assessment and compute the total income of the assessee including the undisclosed income, notwithstanding the assessee had filed the return before the date of search which stood processed under Section 143(1)(a) of the ....

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....een held as under :- "Consequently, even though an assessment order has been passed under Section 143(1) (a) or under Section 143(3) of the Act, the Assessing Officer would be required to reopen these proceedings and reassess the total income taking notice of undisclosed income even found during the search and seizure operation. The fetter imposed upon the Assessing Officer under Sections 147 and 148 of the Act have been removed by the non obstante clause under Section 153A of the Act. Consequently, we are of the opinion that in cases where the assessment or reassessment proceedings have already been completed and assessment orders have been passed, which were subsisting when the search was made, the Assessing Officer woul....

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.... the learned counsel for the appellant states that the present appeal arises out of the same search and seizure operations under Section 132(1) of the Act, 1961 carried out on 27.11.2015 which was subject matter of consideration in the bunch of Income Tax Appeals decided vide judgment and order dated 4.7.2022. Learned counsel for the respondent-assessee does not dispute the factual and legal position as stated by the learned counsel for the appellant-Income Tax Department as noted above. In view of the aforesaid, the substantial questions of law involved in this appeal having been conclusively answered with the decision of this Court in the Income Tax Appeal No. 270 of 2014 (Commissioner of Income Tax Central Kanpur vs. Kesarwani Zard....