Case Law Details
Common ground raised by the assessee in this case is that the Assessment is vitiated on account of lack of jurisdiction.
The ld. Authorised Representative for assessee submitted that the Commissioner of Income Tax (Appeals) erred in not noting that the impugned assessment had been passed in the absence of proper and valid authorization. The proceedings were thus wholly invalid and liable to be quashed as such. The assessments are based only on surmises, presumptions and assumption and no incriminating document was found at the time of search, warranting the proceedings in terms of Sec. 153A of the Act.
In the absence of any evidence found in the course of search, the impugned assessment are wholly devoid of jurisdiction and liable to be cancelled. The Commissioner of Income Tax (Appeals) ought to have noted that the search on 05.10.2006 had not resulted in the seizure of any material, asset or books of account. The cash that was found at the time of search has been properly explained by the assessee. The amount of 1 Crore found and seized by the department from the assessee on 25.10.2006 at the Chennai Airport has also been properly explained. The impugned assessment are thus wholly devoid of jurisdiction and merits and liable to be quashed. The ld. Authorised Representative for assessee relied on the order of Special Bench in the case of All Cargo Global Logistics Ltd. Vs. DC1T, Central Circle-44, Mumbai 137 lTD 257 wherein it was observed in assessments that are abated, the Assessing Officer retains the original jurisdiction as well as jurisdiction conferred on him u/s.153A for which assessments shall be made for each of the six assessment years separately. The ld. Authorised Representative for assessee submitted that for the assessment years 2001-2002, 2002- 2003 assessment was processed u/s.143(1) and further for the assessment year 2003-2004, assessment was completed u/s.143(3) of the Act and for the assessment years 2004-05 to 2007-08 assessment was pending. Thus, he submitted that for the assessment 2003-2004, the assessment was already completed u/s.143(3) of the Act. Being so, there is no incrementing material found during the course of search for this assessment year. The ld. Authorised Representative also relied on the judgment of Bombay High Court in the case of CIT Vs. (1) Continental Warehousing Corporation (NHA VASHE VA) Ltd, and (2) All Cargo Global Logistics Ltd in 374 1TR 645 (Bombay) wherein it was held if there was no incriminating material found during the course of search/s.132 of the Act, power u/s.153A being not expected to be exercised routinely, should be exercised if the search revealed any incriminating material.
The ld. Departmental Representative submitted that there is seized material found during the course of search action u/s. 132 of the Act and the same was used for the purpose of framing assessment u/s.153A of the Act. There is no illegality in framing the assessment. He relied on sec.153A(b) of the Act.
We have heard both the parties and perused the material on record. As seen from the facts of the case there was search in the residence of the assessee on 05.10.2006. Further, there was also a search on 25.11.2006 at Chennai Airport that a sum of 1 Crore was seized from the assessee. Consequent to this, notice u/s.153A was issued to the assessee on 16.10.2007. The assessee filed return of income for the assessment years 2001-2002 to 2005-2006 on 24.10.2008 and on 11.11.2008 for the assessment year 2006-2007. Being so, we find no merit in the argument of the ld. Authorised Representative for assessee. This ground of the appeals of the assessee is rejected.
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