2026 (4) TMI 53

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....bunal. Learned Counsel on behalf of the Appellant-Revenue contends that the only difference in these appeals is that in some assessment years, the assessment orders are passed under Section 143(1) of the Act and in some years the assessment orders are passed under Section 143(3) of the Act. However the issue and questions of law remain the same. Illustratively, as the questions of law, as raised on behalf of Revenue are common, we quote the questions of law in the lead Appeal No.939 of 2019, which reads thus: "QUESTION OF LAW i. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in directing the AO to delete the additions which were made by the AO on account of ALP adjustment of Rs. 19,53,522/-, deduction u/s. 10B of Rs. 10,69,98,599/- and exceptional items written off of Rs. 33,27,68,000/-, relying on the decision of Bombay High Court in the case of All Cargo Logistics Ltd. (374 ITR 645) without appreciating the fact that the case for A.Y. 2008-09 was never selected for scrutiny for regular assessment u/s 143(3) of the I.T. Act and therefore the question of its abatement never arose. ii. Whether on the fact....

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....he Tribunal disposing of the Revenue's appeals made the following observations : "5. We have heard both the parties and perused the records. It is not disputed by the revenue that on the aforesaid items of addition, no incriminating material was found during search. Assessment order under section 143(3) was already passed for assessment year 2007-08 prior to the search and notice. The period for issuing notice under section 143(2) was also over for assessment year 2008-09 and 2009-10 by the time of search and notice. In such circumstances it is evident that these are not abated assessments. In such circumstances the decision of honourable Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra) and Continental Warehousing Ltd. (supra) clearly mandate that the addition cannot be done under section 153A without any incrementing material found during search. The Revenue submits in grounds of appeal that they have not accepted the Hon'ble Bombay High Court decision and SLP has been filed before Hon'ble Supreme Court. This is no reason for us to not follow Hon'ble Jurisdictional High Court exposition. Hence in our considered opinion there is no infir....

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....ration (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under Section 153A of the Act. The occasion to consider the issues raised on merits in the proposed questions becomes academic." 6. Similar view is also taken in the case of Commissioner of Income Tax Vs. SKS Ispat & Power Limited (2018) 99-taxmann.com-424, in which also reference to the decision in the case of CIT Vs Gurinder Singh Bawa (supra) is made. The relevant extract of which reads thus : "4. Even in the case of CIT Vs. Gurinder Singh Bawa (2017) 79 taxmann.com 398 (2016) 386 ITR 483 (Bom) decided by this Court, the assessment was under section 143(1) of the Act. The learned advocate relied on the judgment of this court in Gurinder Singh Bawa (supra) and another judgment of this Court in the case of CIT Vs. Continental Warehousing Corpn. (Nhava Sheva) Ltd. (2015) 58 taxmann.com 78/232 Taxman 270/374 ITR 645 (Bom). 5. We have considered the arguments canvassed by the learned counsel for the respective parties. On perusal of section 153A of the Act, it is manifest that it does not make any distincti....

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....ct to fulfilment of the conditions as envisaged/ mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs." 8. We may also refer to a decision of this Court on a batch of petitions in Principal Commissioner of Income Tax, Central-1 Vs. Speciality Paper Limited Income Tax Appeal No.16 of 2019 and batch, decided on 14-8-2024 7374 ITR 645 (Bom.), in which in similar circumstances also referring to the decision of this Court in CIT Vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) as also decision of Supreme Court in Principal Commissioner of Income-tax, Central-3 Vs. Abhisar Buildwell (P.) Ltd. (supra), the Court made the following observations: "2. Before the Tribunal, disputes had arisen from the order passed by the Commissioner of Income Tax (Appeal) taking a view that in the absence of any incriminating material found in the course of search, no additions are permissible in the assessments made under Section 153 (C) of the Act in y....

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....3A of the IT Act, then, each of the above conclusions rendered by the Division Bench would bind us. 30. Even otherwise, we agree with the Division Bench when it observes as above with regard to the ambit and scope of the powers conferred under section 153A of the Act. Since we are not required to trace out the history and we can do nothing better than to reproduce the observations and conclusions as above that we are not repeating the same. Even if the exercise of power under section 153A is permissible still the provision cannot be read in the manner suggested by Mr. Pinto. Not only the finalised assessment cannot be touched by resorting to those provisions, but even while exercising the power can be exercised where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after 31st March, 2003. There is a mandate to issue notices under section 153(1)(a) and 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. Thus, the crucial words "search" and "requisition" appear ....