IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "I", MUMBAI
BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND
DR. S.T.M. PAVALAN, JUDICIAL MEMBER
ITA No. 5174/Mum/2007
Assessment Year: 2000-01
Monoplan Securities Pvt. Ltd. DCIT Cen Cir-22
C/o. SSKI Securities Pvt. Ltd. Aayakar Bhavan, M.K. Road
Vs.
803/804, Tulsiani Chambers, Mumbai- 400 020
Nariman Point,
Mumbai- 400 021
(Appellant) (Respondent)
Permanent Account No. :-AAACS 6162 L
Assessee by : Shri Hiro Rai
Revenue by : Shri Kishan Vyas
Date of hearing : 23.09.2014
Date of Pronouncement : 23.09.2014
ORDER
PER DR. S.T.M. PAVALAN, JM:
This appeal filed by the Assessee is directed against the order of the
Ld.CIT(A)-4, Mumbai dated 29.06.2007 for the Assessment Year 2000-01.
2. In this appeal, the assessee has agitated the decision of the Ld.CIT(A) in
confirming the action of the AO disallowing the business loss and the bad debts
written off claimed by the assessee. Also, the assessee vide an application dated
30.09.2013, has filed the additional ground of appeal which relate to the validity of
the assessment made u/s 153A of the Income Tax Act. After going through the
additional ground filed by the assessee, it is noted that the same is a legal ground
which does not require any new facts to be brought on record. In view of the
decision of the Hon'ble Apex Court in the case of National Thermal Power Company
Ltd. Vs. CIT (1998) 229 ITR 383, the legal ground raised by the assessee is
admitted.
3. Having heard both the sides and perused the material on record, it is a matter
of fact that search and seizure action u/s 132 of the Act has been carried out in the
SSKI group on 02.08.2003 and the assessee has also been covered under search,
ITA No. 5174/Mum/2007
2 Monoplan Securities Pvt. Ltd.
Assessment Year: 2000-01
which has been concluded on 03.08.2003. It is observed that in respect of the
original return of income filed by the assessee on 30.11.2000 for the Assessment
Year under consideration, the intimation u/s 143(1) of the Act has been issued,
however, no notice u/s 143(2) of the Act has been served by the AO. It is pertinent
to mention that the assessment for the said assessment year has attained finality
before the date of search hence the assessment in the case does not abate. It is
pertinent to mention that the Special Bench of the Tribunal in the case of All Cargo
Global Logistic Ltd. Vs. DCIT 137 ITD 287 (Mum)(SB) has held that the crucial facts
to be recorded in such cases is that whether assessment or re-assessment has been
pending at the time of search carried out or in the course of assessment proceedings
initiated u/s 153A. Applying the said test to the case in hand, the assessment for the
year under consideration has attained finality and therefore the AO does not have
any jurisdiction to review the assessments which have attained finality. Further, the
Rajasthan High Court in the case of Jai Steel (India) Vs. ACIT 88 DTR (Raj) has held
that in case nothing incriminating is found on account of search or requisition, the
question of reassessment of the concluded assessment does not arise. It has further
been held that the underlying purpose of making assessment of total income u/s
153A is to assess income which is not disclosed or would not have been disclosed.
Second proviso to section 153A providing for abatement of assessment or
reassessment, which is applicable only in proceedings pending on the date of search
or requisition for the reason that there cannot be two assessments for a single
assessment year. The same view is fortified by the decision of the Hon'ble Bombay
High Court in the case of CIT Vs. M/s Murali Agro Products vide its order dated
29.10.2010 in IT appeal No 36 of 2009. It is also a settled position of law that
reassessment is permitted in an assessment u/s 153A, only if incriminating material
is found during the course of search. In the case in hand, the question is whether
any incriminating material has been found in the course of search relating to the
additions made. The Revenue could not show any incriminating material found in the
course of search which would warrant the impugned additions. Therefore, we are of
the considered opinion that there is no justification for the authorities below to
consider the issues in the assessment passed u/s 153A. In view of that matter, both
the additions made in the impugned assessment order are not justified.
ITA No. 5174/Mum/2007
3 Monoplan Securities Pvt. Ltd.
Assessment Year: 2000-01
Consequently, the orders of the authorities below making/confirming the
disallowances made in respect of the assessment year under consideration stands
quashed.
4. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on this 23rd day of September, 2014.
Sd/- Sd/-
(B.R. BASKARAN) (Dr. S.T.M. PAVALAN)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 23.09.2014.
*Srivastava
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT(A) Concerned, Mumbai
The DR "I" Bench
//True Copy//
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.
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