JCIT CENT. CIR. - 1(4), MUMBAI V. GRASIM INDUSTRIES LTD, MUMBAI

ITA 1559/MUM/2018

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7464 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 02-04-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 08-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Invalid notice; Depreciation; Search and seizure; Additional depreciation; Accommodation entries; Documents seized; Reassessment proceedings
• Section: 132; 143(3); 153A; 250; 274; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 1055/MUM/2018 Assessment Year: 2010-11 Grasim Industries Limited, Corporate Finance Division, A-2, Aditya Birla Centre, S.K. Ahire Marg, Worli, Mumbai-400030. Vs. The DCIT CC-1(4), Room No. 902, 9 th floor, Old CGO Building, M.K. Road, Mumbai-400020. PAN No. AAACG 4464 B Appellant Respondent ITA No. 1559/MUM/2018 Assessment Year: 2010-11 JCIT (OSD), Central Circle- 1(4), Room No. 902, Pratishtha Bhavan, 9 th floor, Old CGO Building Annexe, Mumbai-400020. Vs. Grasim Industries Limited, A-Wing, 2 nd floor, Aditya Birla Centre, S.K. Ahire Marg, Worli, Mumbai-400030. PAN No. AAACG 4464 B Appellant Respondent Assessee by : Mr. Yogesh Thar & Mr. Chaitanya Joshi Revenue by : Dr. Kishor Dhule, CIT-DR Date of Hearing : 03/04/2024 Date of pronouncement : 29/04/2024 PER OM PRAKASH KANT, AM These cross appeals by the assessee and the Revenue were heard and adjudicated however, same have been recalled by the Tribunal vide order passed in Miscellaneous Application No. 620 & 621/M/2023 for assessment year 2010 adjudication. These appeals are arising from the order of the Ld. Commissioner of Income dated 26.12.2017. 2. The grounds raised by the Revenue are reproduced as under: 1. "On the facts and the circumstances of the case and in law the Ld. CIT(A) erred in granting relief to the assessee stating that no disallowance u/s 153C of the Act is called for as there are no incriminating materials found during the search and the assess has reached its finality and was not abated at the initiation proceedings u/s. 132(1) of the Income Tax Act, 1961". 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred, in holding that no addition can be made us 153C the Act, once the assessment has reached to finality u/s 143(3) of the Act, and no in the case of the assessee during the course of search and seizure action relying upon the decision of the jurisdicti Court decision in the case of Continental Warehousing Corpn. and M/s Murli Agro Products without appreciating that the revenue has not accepted the decision and has filed Court" 3. "On the facts and circumstances of CIT(A) erred in deleting the disallowance of Rs. 62,28,18,348/ account of additional Spill Over Depreciation by treating the assessment as flawed in light of the judgements which are subjudice before Apex and Bombay High Co ITA Nos. 1055 & 1559/Mum/2023 ORDER PER OM PRAKASH KANT, AM These cross appeals by the assessee and the Revenue were and adjudicated earlier by the Tribunal on 31.05.2023, owever, same have been recalled by the Tribunal vide order passed in Miscellaneous Application No. 620 & 621/M/2023 for 010-11 on 16.01.2024 , thus before us for . These appeals are arising from the order of the Ld. Commissioner of Income-tax (Appeals) [in short ‘the Ld. CIT(A)’] The grounds raised by the Revenue are reproduced as under: "On the facts and the circumstances of the case and in law the Ld. CIT(A) erred in granting relief to the assessee stating that no disallowance u/s 153C of the Act is called for as there are no incriminating materials found during the search and the assess has reached its finality and was not abated at the initiation proceedings u/s. 132(1) of the Income Tax Act, 1961". 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred, in holding that no addition can be made us 153C the Act, once the assessment has reached to finality u/s 143(3) of and no incriminating documents have been found and seized in the case of the assessee during the course of search and seizure action relying upon the decision of the jurisdictional Bombay high Court decision in the case of Continental Warehousing Corpn. and M/s Murli Agro Products without appreciating that the revenue has not accepted the decision and has filed SLP in the Hon'ble Apex 3. "On the facts and circumstances of the case and in law the Ld. CIT(A) erred in deleting the disallowance of Rs. 62,28,18,348/ account of additional Spill Over Depreciation by treating the assessment as flawed in light of the judgements which are subjudice before Apex and Bombay High Court. Besides this issue has not Grasim Industries Ltd. 2 ITA Nos. 1055 & 1559/Mum/2023 These cross appeals by the assessee and the Revenue were by the Tribunal on 31.05.2023, owever, same have been recalled by the Tribunal vide order passed in Miscellaneous Application No. 620 & 621/M/2023 for , thus before us for . These appeals are arising from the order of the Ld. tax (Appeals) [in short ‘the Ld. CIT(A)’] The grounds raised by the Revenue are reproduced as under: "On the facts and the circumstances of the case and in law the Ld. CIT(A) erred in granting relief to the assessee stating that no disallowance u/s 153C of the Act is called for as there are no incriminating materials found during the search and the assessment has reached its finality and was not abated at the initiation 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred, in holding that no addition can be made us 153C of the Act, once the assessment has reached to finality u/s 143(3) of incriminating documents have been found and seized in the case of the assessee during the course of search and seizure onal Bombay high Court decision in the case of Continental Warehousing Corpn. and M/s Murli Agro Products without appreciating that the revenue has SLP in the Hon'ble Apex the case and in law the Ld. CIT(A) erred in deleting the disallowance of Rs. 62,28,18,348/- on account of additional Spill Over Depreciation by treating the assessment as flawed in light of the judgements which are subjudice Besides this issue has not been examined and tested in the assessment and/or the Appellate Authorities." 4. "On the facts and circumstances of the case and in law the Ld. CIT(A) erred in allowing the additional Spill Over Depreciation relying upon the judicial pronouncement in the case of CIT vs Continental Warehousing Corpn. [374 appreciating that the revenue has not accepted the aforesaid judicial pronouncement and SLP is pending before the Hon'ble Supreme Court for adjudication". 2.1 The grounds raised by the assessee are reproduced as under: 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in validating the action of the Assessing Officer ('AO') in issuing an invalid notic order dated 29.03.2016 u/s 153C r.w.s. 2. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in upholding the action of the AO in adopting lower opening written depreciation allowance and ought to have directed the AO to re compute depreciation allowance allowable to the Appellant for the year adopting correct opening written down value consequent to withdrawal of dep 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the AO in disallowing depreciation allowance of Rs.29,56,250/ buildings. 3. Briefly stated facts of the case are that the assessee company is engaged in manufacturing of fiber, chemical, cement and iron etc. For the year under consideration, the assessee filed its original return of income on 29.09.2010 which was further revised on 21.03.2012. The assessment u/s 143(3) of the Income 1961 (in short ‘the Act’) was completed on 24.02.2014 a search u/s 132 of the Act was carried out at the premises Aditya Birla Management Corp wherein material pertaining/belonging to the assessee was seized. ITA Nos. 1055 & 1559/Mum/2023 been examined and tested in the assessment and/or the Appellate 4. "On the facts and circumstances of the case and in law the Ld. CIT(A) erred in allowing the additional Spill Over Depreciation relying judicial pronouncement in the case of CIT vs Continental Warehousing Corpn. [374 ITR 645]- Hon'ble Mumbai HC, without appreciating that the revenue has not accepted the aforesaid judicial pronouncement and SLP is pending before the Hon'ble Supreme or adjudication". The grounds raised by the assessee are reproduced as under: On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in validating the action of the Assessing Officer ('AO') in issuing an invalid notice u/s 153C of the Act and in passing order dated 29.03.2016 u/s 153C r.w.s. 143(3) of the Act. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in upholding the action of the AO in adopting lower opening written down value of the block of assets for allowing depreciation allowance and ought to have directed the AO to re compute depreciation allowance allowable to the Appellant for the year adopting correct opening written down value consequent to withdrawal of depreciation allowance in the earlier years. 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the AO in disallowing depreciation allowance of Rs.29,56,250/- stated facts of the case are that the assessee company is engaged in manufacturing of fiber, chemical, cement and or the year under consideration, the assessee filed its original return of income on 29.09.2010 which was further revised on 21.03.2012. The assessment u/s 143(3) of the Income 1961 (in short ‘the Act’) was completed on 24.02.2014 u/s 132 of the Act was carried out at the premises Aditya Birla Management Corporation Pvt. Ltd. on 16.10.20 wherein material pertaining/belonging to the assessee was seized. Grasim Industries Ltd. 3 ITA Nos. 1055 & 1559/Mum/2023 been examined and tested in the assessment and/or the Appellate 4. "On the facts and circumstances of the case and in law the Ld. CIT(A) erred in allowing the additional Spill Over Depreciation relying judicial pronouncement in the case of CIT vs Continental Hon'ble Mumbai HC, without appreciating that the revenue has not accepted the aforesaid judicial pronouncement and SLP is pending before the Hon'ble Supreme The grounds raised by the assessee are reproduced as under: On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in validating the action of the Assessing Officer e u/s 153C of the Act and in passing On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in upholding the action of the AO in adopting down value of the block of assets for allowing depreciation allowance and ought to have directed the AO to re- compute depreciation allowance allowable to the Appellant for the year adopting correct opening written down value consequent to 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the AO in on other stated facts of the case are that the assessee company is engaged in manufacturing of fiber, chemical, cement and sponge, or the year under consideration, the assessee filed its original return of income on 29.09.2010 which was further revised on 21.03.2012. The assessment u/s 143(3) of the Income-tax Act, 1961 (in short ‘the Act’) was completed on 24.02.2014 . Thereafter, u/s 132 of the Act was carried out at the premises of M/s oration Pvt. Ltd. on 16.10.2013, wherein material pertaining/belonging to the assessee was seized. The said material containing cash book, along with page No. 28, 32, 40 of annexure A-1 pertaining to the assessee were Assessing Officer of the assessee Consequently, notice u/s 153C of the Act r.w.s. 153A was issued and assessment was completed u/s 153C r.w.s. 143(3) of the Act on 29.03.2016. 4. On further appeal before the Ld. CIT(A), the assessee challenged the validity of the reassess addition. 5. The Ld. CIT(A) though up u/s 153C of the Act however, held that under the proceedings of section 153C of the Act in the case of non no addition could b material. The Ld. CIT(A) observed that there was no seized material qua the additions made by the Assessing Officer and therefore, accordingly he deleted the addition except the addition of disallowance of depreciati which was held to be based on purchase addition to the buildings. 6. Aggrieved with the above finding of the Ld. CIT(A) both the Revenue and the assessee are before the Tribunal grounds reproduced above. ITA Nos. 1055 & 1559/Mum/2023 The said material containing cash book, along with page No. 28, 32, 1 pertaining to the assessee were forwarded Assessing Officer of the assessee following due procedure of law Consequently, notice u/s 153C of the Act r.w.s. 153A was issued and assessment was completed u/s 153C r.w.s. 143(3) of the Act on On further appeal before the Ld. CIT(A), the assessee challenged the validity of the reassessment as well as merit of the The Ld. CIT(A) though upheld the validity of the notice issued u/s 153C of the Act however, held that under the proceedings of section 153C of the Act in the case of non-abated assessment year no addition could be made without the aid of incriminating material. The Ld. CIT(A) observed that there was no seized material qua the additions made by the Assessing Officer and therefore, accordingly he deleted the addition except the addition of disallowance of depreciation of Rs.29,56,250/- on other building held to be based on incriminating material i.e. purchase addition to the buildings. Aggrieved with the above finding of the Ld. CIT(A) both the Revenue and the assessee are before the Tribunal by way of raising grounds reproduced above. Grasim Industries Ltd. 4 ITA Nos. 1055 & 1559/Mum/2023 The said material containing cash book, along with page No. 28, 32, forwarded to the rocedure of law. Consequently, notice u/s 153C of the Act r.w.s. 153A was issued and assessment was completed u/s 153C r.w.s. 143(3) of the Act on On further appeal before the Ld. CIT(A), the assessee ment as well as merit of the held the validity of the notice issued u/s 153C of the Act however, held that under the proceedings of abated assessment year, e made without the aid of incriminating material. The Ld. CIT(A) observed that there was no seized material qua the additions made by the Assessing Officer and therefore, accordingly he deleted the addition except the addition of on other building incriminating material i.e. the bogus Aggrieved with the above finding of the Ld. CIT(A) both the by way of raising 7. In the grounds raised by the Revenue that ld CIT(A) has erred in there was no incriminating AO including the addition of additional spill over depreciation in view of the decision of the Hon’ble Supreme Court in the case of CIT v. Continental Warehousing Corporation raised by the Revenue, the only has not accepted the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation SLP filed was pending before the Hon’ble Supreme Court. We find that the Ld. CIT(A) after considering the decision of the Hon’ble Bombay High Court in the case of CIT v. Continen Corporation and Murli Agro Products Ltd. (supra) has held that no addition could have been made in proceedings u/s 153C without aid of the incriminating material. The relevant finding of the Ld. CIT(A) in reproduced as under: “16.0 I have carefully considered the findings of the AO, the submissions made by the Appellant Company and the other materials on record, on this issue. 16.1 The Appe completed u/s 143(3), before the issuance of notice u/s 153C and hence didn't abate. It is seen from the facts of the case that the regular assessment for the current assessment year under consideration w completed by the A.O. u/s 143(3) on 24.02.2014. The appeal filed by the Appellant against the assessment order was decided by the CIT(A) vide order dated 11.03.2016. It is evident from the assessment order passed u/s 153C that the AO computed taxable in assessed in regular assessment order u/s 143(3) and ignored the order passed by the CIT(A). 16.2 In the assessment order u/s 153C dated 29.03.2016, the AO has held that fresh assessment of total income is to be made and repeate ITA Nos. 1055 & 1559/Mum/2023 In the grounds raised by the Revenue, a common that ld CIT(A) has erred in deleting the addition on the ground that incriminating material qua the additions made by the the addition of additional spill over depreciation in view of the decision of the Hon’ble Supreme Court in the case of CIT v. Continental Warehousing Corporation (supra). In the grounds nue, the only contention is that the Department has not accepted the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation SLP filed was pending before the Hon’ble Supreme Court. We find . CIT(A) after considering the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation and Murli Agro Products Ltd. (supra) has held that no addition could have been made in proceedings u/s 153C without e incriminating material. The relevant finding of the Ld. CIT(A) in reproduced as under: 16.0 I have carefully considered the findings of the AO, the submissions made by the Appellant Company and the other materials on record, on 16.1 The Appellant's claims is that the proceedings were already completed u/s 143(3), before the issuance of notice u/s 153C and hence didn't abate. It is seen from the facts of the case that the regular assessment for the current assessment year under consideration w completed by the A.O. u/s 143(3) on 24.02.2014. The appeal filed by the Appellant against the assessment order was decided by the CIT(A) vide order dated 11.03.2016. It is evident from the assessment order passed u/s 153C that the AO computed taxable income starting from income as assessed in regular assessment order u/s 143(3) and ignored the order passed by the CIT(A). 16.2 In the assessment order u/s 153C dated 29.03.2016, the AO has held that fresh assessment of total income is to be made and repeate Grasim Industries Ltd. 5 ITA Nos. 1055 & 1559/Mum/2023 common legal issue is the addition on the ground that material qua the additions made by the the addition of additional spill over depreciation in view of the decision of the Hon’ble Supreme Court in the case of CIT . In the grounds that the Department has not accepted the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation (supra) and SLP filed was pending before the Hon’ble Supreme Court. We find . CIT(A) after considering the decision of the Hon’ble tal Warehousing Corporation and Murli Agro Products Ltd. (supra) has held that no addition could have been made in proceedings u/s 153C without e incriminating material. The relevant finding of the Ld. 16.0 I have carefully considered the findings of the AO, the submissions made by the Appellant Company and the other materials on record, on llant's claims is that the proceedings were already completed u/s 143(3), before the issuance of notice u/s 153C and hence didn't abate. It is seen from the facts of the case that the regular assessment for the current assessment year under consideration was completed by the A.O. u/s 143(3) on 24.02.2014. The appeal filed by the Appellant against the assessment order was decided by the CIT(A) vide order dated 11.03.2016. It is evident from the assessment order passed come starting from income as assessed in regular assessment order u/s 143(3) and ignored the order 16.2 In the assessment order u/s 153C dated 29.03.2016, the AO has held that fresh assessment of total income is to be made and repeated all the disallowances made in the regular assessment on the ground that the order of the CIT(A) is not accepted by the Department and appeal has been filed before ITAT. It is evident from the assessment order passed u/s 153C that the AO computed taxable as assessed in regular assessment order u/s 143(3) and has ignored the order passed u/s 250 giving effect to the order of the CIT(A). 16.3 I agree with the contentions of the Appellant that completed assessment shall not aba 153A of the Act and has attained finality, unless the material gathered in the course of search establishes that the income computed under the finalized assessment is contrary to the facts unearthed during the of search. It is also passed by the A.O. disallowance has been made by 16.4 The Section 153(1) starts with a non the normal provisions of the assessment prescribed under the Act in the case of a search operation carried out u/s 132 of the Act. By virtue of clause (a) of section 153(1), the AO is required to issue notice requiring the assessee to prior to date of search. The further consequences of a search carried out u/s 132 are mentioned in clause (b), whereby the A.O. is required to assess or reassess the total income of those six years. As has no option but to make an assessment in respect of all the concerned six years. He has to bring the proceedings to a logical conclusion by making an assessment of the returns filed for all the six years. It may be noted that the provisions procedure prescribed in Section 153A of the Act. Accordingly, I am of the considered opinion that the AO has rightly proceeded with the assessment of 6 assessment years u/s 153C of the Act. 16.5 Having sa what issues can be taken up for assessment u/s 153C of the Act, in a case where at the time of the search operation, the original assessment was already completed. 16.6 In such a scenario, the seco that any assessment or reassessment falling with the period of six assessment years pending on the date of initiation of search under section 132 or requisition of books under section 132A as the case may be, shall abate. In this regard, the relevant proviso is reproduced below: S. 153A. "......Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year years referred to in this subsection pending on initiation of the under section 132A, ITA Nos. 1055 & 1559/Mum/2023 the disallowances made in the regular assessment on the ground that the order of the CIT(A) is not accepted by the Department and appeal has been filed before ITAT. It is evident from the assessment order passed u/s 153C that the AO computed taxable income starting from the income as assessed in regular assessment order u/s 143(3) and has ignored the order passed u/s 250 giving effect to the order of the CIT(A). 16.3 I agree with the contentions of the Appellant that completed assessment shall not abate, as per the provisions of Section 153C r.w. 153A of the Act and has attained finality, unless the material gathered in the course of search establishes that the income computed under the assessment is contrary to the facts unearthed during the is also observed from the impugned assessment order passed by the A.O. u/s 153C for AY 2010-11 that no addition or disallowance has been made by the AO based on the seized material. 16.4 The Section 153(1) starts with a non-obstante clause and disregards the normal provisions of the assessment prescribed under the Act in the case of a search operation carried out u/s 132 of the Act. By virtue of (a) of section 153(1), the AO is required to issue notice requiring the assessee to file the return of income for the six assessment years prior to date of search. The further consequences of a search carried out u/s 132 are mentioned in clause (b), whereby the A.O. is required to assess or reassess the total income of those six years. As has no option but to make an assessment in respect of all the concerned six years. He has to bring the proceedings to a logical conclusion by making an assessment of the returns filed for all the six years. It may be noted that the provisions of section 153C of the Act also refers back to the procedure prescribed in Section 153A of the Act. Accordingly, I am of the considered opinion that the AO has rightly proceeded with the assessment of 6 assessment years u/s 153C of the Act. 16.5 Having said so, the next question, which needs to be addressed is what issues can be taken up for assessment u/s 153C of the Act, in a case where at the time of the search operation, the original assessment was already completed. 16.6 In such a scenario, the second proviso to Section 153(1) specifies that any assessment or reassessment falling with the period of six assessment years pending on the date of initiation of search under section 132 or requisition of books under section 132A as the case may ate. In this regard, the relevant proviso is reproduced below: S. 153A. "......Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year years referred to in this subsection pending on initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate". Grasim Industries Ltd. 6 ITA Nos. 1055 & 1559/Mum/2023 the disallowances made in the regular assessment on the ground that the order of the CIT(A) is not accepted by the Department and appeal has been filed before ITAT. It is evident from the assessment order passed income starting from the income as assessed in regular assessment order u/s 143(3) and has ignored the order passed u/s 250 giving effect to the order of the CIT(A). 16.3 I agree with the contentions of the Appellant that completed te, as per the provisions of Section 153C r.w. 153A of the Act and has attained finality, unless the material gathered in the course of search establishes that the income computed under the assessment is contrary to the facts unearthed during the course observed from the impugned assessment order 11 that no addition or based on the seized material. lause and disregards the normal provisions of the assessment prescribed under the Act in the case of a search operation carried out u/s 132 of the Act. By virtue of (a) of section 153(1), the AO is required to issue notice requiring file the return of income for the six assessment years prior to date of search. The further consequences of a search carried out u/s 132 are mentioned in clause (b), whereby the A.O. is required to such, the AO has no option but to make an assessment in respect of all the concerned six years. He has to bring the proceedings to a logical conclusion by making an assessment of the returns filed for all the six years. It may be of section 153C of the Act also refers back to the procedure prescribed in Section 153A of the Act. Accordingly, I am of the considered opinion that the AO has rightly proceeded with the id so, the next question, which needs to be addressed is - what issues can be taken up for assessment u/s 153C of the Act, in a case where at the time of the search operation, the original assessment nd proviso to Section 153(1) specifies that any assessment or reassessment falling with the period of six assessment years pending on the date of initiation of search under section 132 or requisition of books under section 132A as the case may ate. In this regard, the relevant proviso is reproduced below:- S. 153A. "......Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year or years referred to in this subsection pending on the date of search under section 132 or making of requisition as the case may be, shall abate". 16.7 Further, in Para 65.5 of the CBDT Circular No. 7/2003 dated 05.09.2003 giving explanatory notes on the provisions relating to direct taxes in the Finance Act, 2003, the CBDT has clarified as under: "65.5 The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified t the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate. Save as otherwise provided in the proposed section 153A, section 153B and section 153C, all other provisions Act shall apply to the assessment or reassessment made under section 153A. It is also clarified that assessment or reassessment made under section 153A shall be subject to interest, penalty and prosecution, if applicable. In the assessment or reas made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 16.8 The word 'abate' means to stop or to put an end. The objective of the above proviso is clearly reassessment proceedings, which are pending on the date of search or requisition of records, as the case may be, and which are now required to be undertaken afresh in view of section 153A / 153C of the Act. 16.9 The word 'pending' occurring in the second proviso to Section 153A of the Act, is also significant. It is qualified by the words 'on the date of initiation of the search', which makes it clear that on initiation of the proceedings u/s. 153A or 153C, as assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under section 132A of the Act, stand abated. As reassessments alrea referred to in section 153A of the Act are to be considered final and cannot be altered. 16.10 The Special Bench of Hon'ble Mumbai ITAT in the case of All Cargo Global Logistics Ltd vs DCIT(2012) 147 TTJ 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 (SB) has observed as under: "52. The provision comes into operation if a search or requisition is initiated after 31.5.2003. On satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income of six years immediat the year of search. The word used is "shall" and, thus, there is no option but to issue such a notice. Thereafter he has to assess or reassess total income of these six years. In this respect also, the word used is "shall" and, therefore, the ITA Nos. 1055 & 1559/Mum/2023 16.7 Further, in Para 65.5 of the CBDT Circular No. 7/2003 dated .2003 giving explanatory notes on the provisions relating to direct taxes in the Finance Act, 2003, the CBDT has clarified as under: "65.5 The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified t the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate. Save as otherwise provided in the proposed section 153A, section 153B and section 153C, all other provisions Act shall apply to the assessment or reassessment made under section 153A. It is also clarified that assessment or reassessment made under section 153A shall be subject to interest, penalty and prosecution, if applicable. In the assessment or reas made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 16.8 The word 'abate' means to stop or to put an end. The objective of the above proviso is clearly to eliminate the multiplicity of assessment or reassessment proceedings, which are pending on the date of search or requisition of records, as the case may be, and which are now required to be undertaken afresh in view of section 153A / 153C of the Act. .9 The word 'pending' occurring in the second proviso to Section 153A of the Act, is also significant. It is qualified by the words 'on the date of initiation of the search', which makes it clear that on initiation of the proceedings u/s. 153A or 153C, as the case may be, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under section 132A of the Act, stand abated. As a corollary, the assessments / assessments already completed and falling within the six years period referred to in section 153A of the Act are to be considered final and cannot be altered. 16.10 The Special Bench of Hon'ble Mumbai ITAT in the case of All Cargo Global Logistics Ltd vs DCIT(2012) 147 TTJ 0513 (SB) : (2012) 74 DTR 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 (SB) has observed as under: "52. The provision comes into operation if a search or requisition is initiated after 31.5.2003. On satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income of six years immediat the year of search. The word used is "shall" and, thus, there is no option but to issue such a notice. Thereafter he has to assess or reassess total income of these six years. In this respect also, the word used is "shall" and, therefore, the AO has no option but to Grasim Industries Ltd. 7 ITA Nos. 1055 & 1559/Mum/2023 16.7 Further, in Para 65.5 of the CBDT Circular No. 7/2003 dated .2003 giving explanatory notes on the provisions relating to direct taxes in the Finance Act, 2003, the CBDT has clarified as under:- "65.5 The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified that the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate. Save as otherwise provided in the proposed section 153A, section 153B and section 153C, all other provisions of this Act shall apply to the assessment or reassessment made under section 153A. It is also clarified that assessment or reassessment made under section 153A shall be subject to interest, penalty and prosecution, if applicable. In the assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such 16.8 The word 'abate' means to stop or to put an end. The objective of the to eliminate the multiplicity of assessment or reassessment proceedings, which are pending on the date of search or requisition of records, as the case may be, and which are now required to be undertaken afresh in view of section 153A / 153C of the Act. .9 The word 'pending' occurring in the second proviso to Section 153A of the Act, is also significant. It is qualified by the words 'on the date of initiation of the search', which makes it clear that on initiation of the the case may be, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under section a corollary, the assessments / dy completed and falling within the six years period referred to in section 153A of the Act are to be considered final and 16.10 The Special Bench of Hon'ble Mumbai ITAT in the case of All Cargo 0513 (SB) : (2012) 74 DTR 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 (SB) has "52. The provision comes into operation if a search or requisition is initiated after 31.5.2003. On satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income of six years immediately preceding the year of search. The word used is "shall" and, thus, there is no option but to issue such a notice. Thereafter he has to assess or reassess total income of these six years. In this respect also, the AO has no option but to assess or reassess the total income of these six years. The pending proceedings shall abate. This means that out of six years, if any assessment or reassessment is pending on the date of initiation of the search, it shall abate. In proceedings will not be proceeded with thereafter." 16.11 It has been categorically observed in the above mentioned judgment that only the pending proceedings, as on the date of search shall abate meaning thereby that the completed pro finality. 16.12 Now a question arises, as to what is the scope of assessment/ reassessment under the provisions of section 153A/153C of the Act for the assessments/reassessments which have abated and those which have attained finality. 16.13 The use of the phrase 'so far as may be' in section 153(1)(a) implies that all the provisions of the IT Act as contained under Chapter AV prescribing the procedure for assessment or under any other Chapter of the aractea respect to the return of income applicable to the of the Act. The with the provisions of section 153A are restricted by the use of the phrase 'so far as 16.14 As such, for the assessments proceedings which are abated, the AO gets all the powers prescribed under the law, as if the assessment is being made for the first time. Thus, if the assessment is made for the first time, all the provisions of assessment u/s. 143(3) shall be applicable. In the case of re the principles pertaining to assessment u/s 147/148 of the Act shall become applicable. 16.15 As far as the assessments/reassessments, which do which have attained finality, the principle of time barring rule comes into play. The assessee acquires a right as to the finality of proceedings. Quietus of the completed assessments can be disturbed, only in a case, where incriminating seize search operation u/s 132 of the Act. 16.16 Further, as observed above, the objective behind the second proviso to section 153(1) is to eliminate multiplicity of proceedings. In such cases it is only the seized emanating out of the search proceedings, which is relevant for the purpose of assessment. 16.17 The Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation [374 TR 645),has held that when the assessment has attained finality, then the A while passing the independent assessment order u/s 153A of the Act can't disturb the assessment / reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s 1 ITA Nos. 1055 & 1559/Mum/2023 assess or reassess the total income of these six years. The pending proceedings shall abate. This means that out of six years, if any assessment or reassessment is pending on the date of initiation of the search, it shall abate. In other words pending proceedings will not be proceeded with thereafter." 16.11 It has been categorically observed in the above mentioned judgment that only the pending proceedings, as on the date of search shall abate meaning thereby that the completed proceedings attains 16.12 Now a question arises, as to what is the scope of assessment/ reassessment under the provisions of section 153A/153C of the Act for the assessments/reassessments which have abated and those which have attained finality. 13 The use of the phrase 'so far as may be' in section 153(1)(a) implies that all the provisions of the IT Act as contained under Chapter AV prescribing the procedure for assessment or under any other Chapter of the aractea respect to the return of income filed Us. 139 shall be applicable to the returns filed pursuant to notice issued u/s. 153A/153C of the Act. The applicability of those provisions which are inconsistent with the provisions of section 153A are restricted by the use of the phrase 'so far as may be'. 16.14 As such, for the assessments proceedings which are abated, the AO gets all the powers prescribed under the law, as if the assessment is being made for the first time. Thus, if the assessment is made for the first time, all the provisions of assessment, relevant for making of an assessment u/s. 143(3) shall be applicable. In the case of re the principles pertaining to assessment u/s 147/148 of the Act shall become applicable. 16.15 As far as the assessments/reassessments, which do which have attained finality, the principle of time barring rule comes into play. The assessee acquires a right as to the finality of proceedings. Quietus of the completed assessments can be disturbed, only in a case, where incriminating seized material is found, during the course of the search operation u/s 132 of the Act. 16.16 Further, as observed above, the objective behind the second proviso to section 153(1) is to eliminate multiplicity of proceedings. In such cases it is only the seized material and undisclosed income emanating out of the search proceedings, which is relevant for the purpose of assessment. 16.17 The Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation [374 TR 645),has held that when the essment has attained finality, then the A while passing the independent assessment order u/s 153A of the Act can't disturb the assessment / reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s 1 Grasim Industries Ltd. 8 ITA Nos. 1055 & 1559/Mum/2023 assess or reassess the total income of these six years. The pending proceedings shall abate. This means that out of six years, if any assessment or reassessment is pending on the date other words pending 16.11 It has been categorically observed in the above mentioned judgment that only the pending proceedings, as on the date of search ceedings attains 16.12 Now a question arises, as to what is the scope of assessment/ reassessment under the provisions of section 153A/153C of the Act for the assessments/reassessments which have abated and those which 13 The use of the phrase 'so far as may be' in section 153(1)(a) implies that all the provisions of the IT Act as contained under Chapter AV prescribing the procedure for assessment or under any other Chapter of filed Us. 139 shall be s. 153A/153C applicability of those provisions which are inconsistent with the provisions of section 153A are restricted by the use of the 16.14 As such, for the assessments proceedings which are abated, the AO gets all the powers prescribed under the law, as if the assessment is being made for the first time. Thus, if the assessment is made for the first assessment, relevant for making of an assessment u/s. 143(3) shall be applicable. In the case of re-assessment, the principles pertaining to assessment u/s 147/148 of the Act shall 16.15 As far as the assessments/reassessments, which do not abate or which have attained finality, the principle of time barring rule comes into play. The assessee acquires a right as to the finality of proceedings. Quietus of the completed assessments can be disturbed, only in a case, d material is found, during the course of the 16.16 Further, as observed above, the objective behind the second proviso to section 153(1) is to eliminate multiplicity of proceedings. In material and undisclosed income emanating out of the search proceedings, which is relevant for the 16.17 The Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation [374 TR 645),has held that when the essment has attained finality, then the A while passing the independent assessment order u/s 153A of the Act can't disturb the assessment / reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s 132 of the Act establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of search operation. 6.18 In the case referred, supra, the Hon'ble Bombay High Court has upheld of the follo "i. On a plain reading of Section 153A of the Income becomes clear that on initiation of the proceedings under Section 153A, it is only the assessment / reassessment proceedings that are pending on the date o or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalised for those assessment years covered under Section 153A of the Act. ii. By a circular No. 8 of 2003 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalised assessment/ reassessment shall not abate. assessments/reassessments do not abate, the appeal revision or rectification pending against finalised assessment/reassessments would not abate. iii. Therefore, the argument of the revenue, that on initiation of proceeding assessments/reassessments finalised for the assessment years covered under Section 153A of the Income cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is t assessment/reassessment proceedings which stood abated as per section 153A(1)." 16.19 A similar view has been taken by the Hon'ble Bombay High Court (Nagpur Bench) in case of Murli Agro Products Ltd Vs. CIT 49 Taxman.com 172 initiation of proceedings U/s. 153A, it is only the assessment proceedings that are pending on the date of conducting search U/s. 132 or making requisition U/s. 132A of the Act that stand abated and not the assessments al reproduced hereunder: "9. What Section 153A contemplates is that, notwithstanding the regular provisions for assessment/ reassessment contained in the IT Act, where search is conducted under Secti is made under Section 132A on or of of any person, the Assessing Officer shall issue notice to such person requiring him to stipulated therein, in respect of six ass preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made and thereafter assess or reassess the total income for those ITA Nos. 1055 & 1559/Mum/2023 establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of search operation. In the case referred, supra, the Hon'ble Bombay High Court has the following observations of Hon'ble ITAT:- "i. On a plain reading of Section 153A of the Income becomes clear that on initiation of the proceedings under Section 153A, it is only the assessment / reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalised for those assessment years covered under Section 153A of the Act. ii. By a circular No. 8 of 2003 dated 18-9-2003 (See 263 ITR (St) 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalised assessment/ reassessment shall not abate. It is only because, the finalised assessments/reassessments do not abate, the appeal revision or rectification pending against finalised assessment/reassessments would not abate. iii. Therefore, the argument of the revenue, that on initiation of proceedings under Section 153A, the assessments/reassessments finalised for the assessment years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is t assessment/reassessment proceedings which stood abated as per section 153A(1)." 16.19 A similar view has been taken by the Hon'ble Bombay High Court (Nagpur Bench) in case of Murli Agro Products Ltd Vs. CIT 49 172 in ITA No 36 of 2009, wherein it has been held that on initiation of proceedings U/s. 153A, it is only the assessment proceedings that are pending on the date of conducting search U/s. 132 or making requisition U/s. 132A of the Act that stand abated and not the assessments already finalised. The relevant excerpts of the judgment are reproduced hereunder:- "9. What Section 153A contemplates is that, notwithstanding the regular provisions for assessment/ reassessment contained in the IT Act, where search is conducted under Section 132 or requisition is made under Section 132A on or of after 31/5/2003 in the case of any person, the Assessing Officer shall issue notice to such person requiring him to furnish return of income within the time stipulated therein, in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made and thereafter assess or reassess the total income for those Grasim Industries Ltd. 9 ITA Nos. 1055 & 1559/Mum/2023 establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during In the case referred, supra, the Hon'ble Bombay High Court has "i. On a plain reading of Section 153A of the Income-tax Act, it becomes clear that on initiation of the proceedings under Section 153A, it is only the assessment / reassessment proceedings that f conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalised for those assessment years covered under Section 153A of the Act. 2003 (See 263 ITR (St) 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalised assessment/ It is only because, the finalised assessments/reassessments do not abate, the appeal revision or rectification pending against finalised iii. Therefore, the argument of the revenue, that on initiation of s under Section 153A, the assessments/reassessments finalised for the assessment years tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is the pending assessment/reassessment proceedings which stood abated as 16.19 A similar view has been taken by the Hon'ble Bombay High Court (Nagpur Bench) in case of Murli Agro Products Ltd Vs. CIT 49 , wherein it has been held that on initiation of proceedings U/s. 153A, it is only the assessment proceedings that are pending on the date of conducting search U/s. 132 or making requisition U/s. 132A of the Act that stand abated and not the ready finalised. The relevant excerpts of the judgment are "9. What Section 153A contemplates is that, notwithstanding the regular provisions for assessment/ reassessment contained in the on 132 or requisition after 31/5/2003 in the case of any person, the Assessing Officer shall issue notice to such furnish return of income within the time essment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made and thereafter assess or reassess the total income for those assessment years. The second proviso to Section 153A for abatement of assessment/reassessment proceedings which are pending on the date of search/requisition. provides that when the assessment made under Section 153(1) is annulled, the assessment or reassessment that stood abated shall stand revived. 10. Thus on a plain reading of Section 153A of the Inocme it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of conducting search or making requisition under Section 132A of the Act stand abated and not the assessment/reassessments already finalized for those assessment years covered under Section 153A of the Act. By a circular No.8 of 2003 dated 18 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalized assessment/reassessment shall not abate. It is only because, the finalized assessments/reassessments do not abate, the appeal, revision or rectification pending against finalized assessments/reassessments would not abate. argument of the revenue, that on initiation of proceedings Section assessment years covered under Section 153A of the Income Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is the pending assessment/reassess abated as per section 153(1). 11. In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for the assessment year 1998-99 was finalized on 29 thereafter case, initiation of proceedings under Section affect the assessment finalized on 29 12. Once it is held that the assessment finalized on has attained finality, then the 80HHC of the Income the assessment dated 29 case, the A.O. while passing the independent assessment order under Section 153A read with Sect not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section 153A of the Income establish that the reliefs granted und assessment/reassessment were contrary to the facts unearthed during the course of 153A proceedings. 13. In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the 153A ITA Nos. 1055 & 1559/Mum/2023 assessment years. The second proviso to Section 153A for abatement of assessment/reassessment proceedings which are pending on the date of search/requisition. Section provides that when the assessment made under Section 153(1) is annulled, the assessment or reassessment that stood abated l stand revived. 10. Thus on a plain reading of Section 153A of the Inocme it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessment/reassessments already finalized for those assessment years covered under Section 153A of the Act. By a circular No.8 of 2003 dated 18-9-2003 (See 263 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalized assessment/reassessment shall not abate. It is only because, the alized assessments/reassessments do not abate, the appeal, revision or rectification pending against finalized assessments/reassessments would not abate. Therefore, the argument of the revenue, that on initiation of proceedings 153A, the assessments/reassessments finalized for the assessment years covered under Section 153A of the Income Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is the pending assessment/reassessment proceedings which stood abated as per section 153(1). 11. In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for the assessment year 99 was finalized on 29-12-2000 and search was thereafter on 3-12-2003. Therefore, in the facts of the present case, initiation of proceedings under Section 153A would not affect the assessment finalized on 29-12-2000. 12. Once it is held that the assessment finalized on has attained finality, then the deduction allowed under section 80HHC of the Income-tax Act as well as the loss computed under the assessment dated 29-12-2000 would attain finality. In such a case, the A.O. while passing the independent assessment order under Section 153A read with Section 143(3) of the IT. Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section 153A of the Income establish that the reliefs granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of 153A proceedings. 13. In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the 153A Grasim Industries Ltd. 10 ITA Nos. 1055 & 1559/Mum/2023 assessment years. The second proviso to Section 153A provides for abatement of assessment/reassessment proceedings which Section 153(2) provides that when the assessment made under Section 153(1) is annulled, the assessment or reassessment that stood abated 10. Thus on a plain reading of Section 153A of the Inocme-tax Act, it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessment/reassessments already finalized for those assessment years covered under Section 153A of the Act. 2003 (See 263 ITR (St) 61 at 107) the CBDT has clarified that on initiation of proceedings under Section 153A, the proceedings pending in appeal, revision or rectification proceedings against finalized assessment/reassessment shall not abate. It is only because, the alized assessments/reassessments do not abate, the appeal, revision or rectification pending against finalized Therefore, the argument of the revenue, that on initiation of proceedings under ssments/reassessments finalized for the assessment years covered under Section 153A of the Income-tax Act stand abated cannot be accepted. Similarly on annulment of assessment made under Section 153(1) what stands revived is ment proceedings which stood 11. In the present case, as contended by Shri Mani, learned counsel for the assessee, the assessment for the assessment year 2000 and search was conducted 2003. Therefore, in the facts of the present 153A would not 12. Once it is held that the assessment finalized on 29.12.2000 deduction allowed under section tax Act as well as the loss computed under 2000 would attain finality. In such a case, the A.O. while passing the independent assessment order ion 143(3) of the IT. Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section 153A of the Income-tax Act er the finalized assessment/reassessment were contrary to the facts unearthed 13. In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceed HHC was erroneous. In such a case, the A.O. while passing the assessment order under Section 153A read with Section 143(3) could not have disturbed the assessment order finalised on 29.12.2000 relating consequently the C.I.T. could not have invoked jurisdiction under Section 263 of the Act." 16.20 In the above mentioned judgment, the Hon'ble Bombay High Court has held that no addition can be made in respect of assessments have become final, if no incriminating material is found during the course of search. It has been held that once the original assessment has attained finality, then the Assessing Officer while passing the assessment order U assessment/ reassessment order which has attained finality, unless the material gathered during the course of the search proceedings establishes something contrary to it. If there is nothing on record to suggest that any incriminating mater search, the AO, while passing order Us. 153C r.w.s.143(3) cannot disturb the original assessment order passed U/s. 143(3) of the Act. 16.21 On this issue the Special Bench of Hon'ble Mumbai ITAT in the case of All Cargo Global (2012) 74 DTR 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 (SB)has also observed as under: "58. Thus, question No.1 before us is answered as under: a) In assessments that are abated, the AO reta 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; b) In other cases, in addition to the income that has already been assessed, the assessment incriminating material, which in the context of relevant provisions means - of search but not produced in the course of original assessment, and (ii) undisclo search." 16.22 The Hon'ble Mumbai Tribunal in the case of Guruprerana Enterprises v. ACIT (57 DTR 465), has held that only the assessments pending before the AO for completion shall abate u/s. 153A and the issues decided in the assessment cannot be reconsidered and re adjudicated, unless there is some fresh material found during the course of search in relation to such points. 16.23 In the case of Viraj Forgings Ltd. vs. DCIT [ITA No. 1948/M/2008] and Viraj Impoexpo Ltd. vs. DCIT in (ITA No. 1949/M/2008, the Hon'ble Mumbai ITAT has held as follows: ITA Nos. 1055 & 1559/Mum/2023 proceedings which would show that the relief under Section 80 HHC was erroneous. In such a case, the A.O. while passing the assessment order under Section 153A read with Section 143(3) could not have disturbed the assessment order finalised on 29.12.2000 relating to Section 80 HHC deduction and consequently the C.I.T. could not have invoked jurisdiction under Section 263 of the Act." 16.20 In the above mentioned judgment, the Hon'ble Bombay High Court has held that no addition can be made in respect of assessments have become final, if no incriminating material is found during the course of search. It has been held that once the original assessment has attained finality, then the Assessing Officer while passing the assessment order U/s. 153A r.w.s. 143(3) cannot disturb the assessment/ reassessment order which has attained finality, unless the material gathered during the course of the search proceedings establishes something contrary to it. If there is nothing on record to suggest that any incriminating material was unearthed during search, the AO, while passing order Us. 153C r.w.s.143(3) cannot disturb the original assessment order passed U/s. 143(3) of the Act. 16.21 On this issue the Special Bench of Hon'ble Mumbai ITAT in the case of All Cargo Global Logistics Ltd vs DCIT(2012) 147 TTJ 0513 (SB) : 74 DTR 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 (SB)has also observed as under:-- "58. Thus, question No.1 before us is answered as under: a) In assessments that are abated, the AO 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; b) In other cases, in addition to the income that has already been assessed, the assessment u/s 153A will be made on the basis of incriminating material, which in the context of relevant provisions - (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search." 16.22 The Hon'ble Mumbai Tribunal in the case of Guruprerana v. ACIT (57 DTR 465), has held that only the assessments pending before the AO for completion shall abate u/s. 153A and the issues decided in the assessment cannot be reconsidered and re adjudicated, unless there is some fresh material found during the course of search in relation to such points. 16.23 In the case of Viraj Forgings Ltd. vs. DCIT [ITA No. 1948/M/2008] Impoexpo Ltd. vs. DCIT in (ITA No. 1949/M/2008, the Hon'ble Mumbai ITAT has held as follows:- Grasim Industries Ltd. 11 ITA Nos. 1055 & 1559/Mum/2023 ings which would show that the relief under Section 80 HHC was erroneous. In such a case, the A.O. while passing the assessment order under Section 153A read with Section 143(3) could not have disturbed the assessment order finalised on 80 HHC deduction and consequently the C.I.T. could not have invoked jurisdiction under 16.20 In the above mentioned judgment, the Hon'ble Bombay High Court has held that no addition can be made in respect of assessments which have become final, if no incriminating material is found during the course of search. It has been held that once the original assessment has attained finality, then the Assessing Officer while passing the not disturb the assessment/ reassessment order which has attained finality, unless the material gathered during the course of the search proceedings establishes something contrary to it. If there is nothing on record to ial was unearthed during the search, the AO, while passing order Us. 153C r.w.s.143(3) cannot disturb the original assessment order passed U/s. 143(3) of the Act. 16.21 On this issue the Special Bench of Hon'ble Mumbai ITAT in the Logistics Ltd vs DCIT(2012) 147 TTJ 0513 (SB) : 74 DTR 0089 (SB) : (2012) 137 TD 0287 (SB) : (2012) 18 ITR 0106 "58. Thus, question No.1 before us is answered as under: ins 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 b) In other cases, in addition to the income that has already been u/s 153A will be made on the basis of incriminating material, which in the context of relevant provisions (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, sed income or property discovered in the course of 16.22 The Hon'ble Mumbai Tribunal in the case of Guruprerana v. ACIT (57 DTR 465), has held that only the assessments pending before the AO for completion shall abate u/s. 153A and the issues decided in the assessment cannot be reconsidered and re- adjudicated, unless there is some fresh material found during the course 16.23 In the case of Viraj Forgings Ltd. vs. DCIT [ITA No. 1948/M/2008] Impoexpo Ltd. vs. DCIT in (ITA No. 1949/M/2008, the Hon'ble "4.2 We have perused the records and considered the rival contentions carefully. The legal dispute raised in this ground is whether issues considered and decided assessment can be re initiated under section 153A. In case of search, the AO under section 153A is empowered to issue notices to the searched person requiring him to furnish the return of income in re each assessment year immediately preceding the previous year in which search is Further the second proviso to section 153A also provides tha assessment or re falling within the period of six assessment years referred to above pending on the date of initiation of search under section 132 or making of requisition under section 132A as the case may be shall abate. Normally, the assessments which are pending in appeal or in revision cannot be said to be complete and therefore assessment/re to be considered as pending on the date of search but the CBDT in the circular No.7 of 2003 dated 5.9.2003 has clarified that appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 will not abate. In other words, only the assessments pending before the Assessing Officer for completion shall abate. In this case there is no dispute that on the date of search, the assessment in the case of assessee had already been completed by the AO and in terms of the circular of the CBDT, the regular assessment made in case of the assess issues decided in the assessment cannot be re proceedings under section 153A unless there is some fresh material found during the course of search in relation to such points/ issues." 16.24 The Hon'ble Delhi High Court in the case of CIT vs. RRJ Securities (2016] 380 ITR 612, has clearly held that in the absence of any incriminating material, the concluded assessments could not be interfered U/s. 153A of the Act. In the facts of that cas the documents seized has no reference to the income of the assessee for relevant assessment year and, thus, the AO has no jurisdiction to make the re-assessment U/s. 153A. 16.25 The Hon'ble Delhi High Court in the case of Pr. CIT vs. La (ITA 274 and 276 of 2016), considering the ratio laid down in the case of CIT vs. Kabul Chawla [2016] 380 ITR 573, has held that section 153A assessment cannot be made for the assessment years in which incriminating material is may be recovered for other years in the block of 6 years. 16.26 The Hon'ble Delhi High Court in a recent decision in the case of Pr. CIT vs. Meeta Gutgutia [2017 view that no addition can ITA Nos. 1055 & 1559/Mum/2023 "4.2 We have perused the records and considered the rival contentions carefully. The legal dispute raised in this ground is whether issues considered and decided in the regular assessment can be re-considered in an assessment proceedings initiated under section 153A. In case of search, the AO under section 153A is empowered to issue notices to the searched person requiring him to furnish the return of income in re each assessment year »falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. Further the second proviso to section 153A also provides tha assessment or re-assessment relating to any assessment year falling within the period of six assessment years referred to above pending on the date of initiation of search under section 132 or making of requisition under section 132A as the case may be hall abate. Normally, the assessments which are pending in appeal or in revision cannot be said to be complete and therefore assessment/re-assessment pending in appeal/revision could also to be considered as pending on the date of search but the CBDT e circular No.7 of 2003 dated 5.9.2003 has clarified that appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 will not abate. In other words, only the assessments pending before the Assessing for completion shall abate. In this case there is no dispute that on the date of search, the assessment in the case of assessee had already been completed by the AO and in terms of the circular of the CBDT, the regular assessment made in case of the assessee will not abate. Therefore in our view the points/ issues decided in the assessment cannot be re-considered in the proceedings under section 153A unless there is some fresh material found during the course of search in relation to such points/ issues." 6.24 The Hon'ble Delhi High Court in the case of CIT vs. RRJ Securities (2016] 380 ITR 612, has clearly held that in the absence of any incriminating material, the concluded assessments could not be interfered U/s. 153A of the Act. In the facts of that case, it was held that the documents seized has no reference to the income of the assessee for relevant assessment year and, thus, the AO has no jurisdiction to make assessment U/s. 153A. 16.25 The Hon'ble Delhi High Court in the case of Pr. CIT vs. La 274 and 276 of 2016), considering the ratio laid down in the case of Kabul Chawla [2016] 380 ITR 573, has held that section 153A assessment cannot be made for the assessment years in which incriminating material is not recovered even though incriminating material may be recovered for other years in the block of 6 years. 16.26 The Hon'ble Delhi High Court in a recent decision in the case of Pr. CIT vs. Meeta Gutgutia [2017-TIOL-1000-HC-DEL-IT], has affirmed the view that no addition can be made for a particular assessment year Grasim Industries Ltd. 12 ITA Nos. 1055 & 1559/Mum/2023 "4.2 We have perused the records and considered the rival contentions carefully. The legal dispute raised in this ground is in the regular considered in an assessment proceedings initiated under section 153A. In case of search, the AO under section 153A is empowered to issue notices to the searched person requiring him to furnish the return of income in respect of »falling within the six assessment years assessment year relevant to the conducted or requisition is made. Further the second proviso to section 153A also provides that assessment relating to any assessment year falling within the period of six assessment years referred to above pending on the date of initiation of search under section 132 or making of requisition under section 132A as the case may be hall abate. Normally, the assessments which are pending in appeal or in revision cannot be said to be complete and therefore assessment pending in appeal/revision could also to be considered as pending on the date of search but the CBDT e circular No.7 of 2003 dated 5.9.2003 has clarified that appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 will not abate. In other words, only the assessments pending before the Assessing for completion shall abate. In this case there is no dispute that on the date of search, the assessment in the case of assessee had already been completed by the AO and in terms of the circular of the CBDT, the regular assessment made in case of ee will not abate. Therefore in our view the points/ considered in the proceedings under section 153A unless there is some fresh material found during the course of search in relation to such 6.24 The Hon'ble Delhi High Court in the case of CIT vs. RRJ Securities (2016] 380 ITR 612, has clearly held that in the absence of any incriminating material, the concluded assessments could not be e, it was held that the documents seized has no reference to the income of the assessee for relevant assessment year and, thus, the AO has no jurisdiction to make 16.25 The Hon'ble Delhi High Court in the case of Pr. CIT vs. Lata Jain 274 and 276 of 2016), considering the ratio laid down in the case of Kabul Chawla [2016] 380 ITR 573, has held that section 153A assessment cannot be made for the assessment years in which hough incriminating material 16.26 The Hon'ble Delhi High Court in a recent decision in the case of Pr. IT], has affirmed the be made for a particular assessment year without there being an incriminating material that relates to the said assessment year which would justify such an addition. 16.27 The Memorandum explaining the provisions of Finance Bill 2003, stated that the then relating to block assessment prescribing single assessment of undisclosed income for block period, were introduced for avoidance of disputes, early finalisation of such assessments and reduction in multiplicity of proceedings. However, there were parallel proceedings carried on namely regular assessment proceedings as well as block assessments for undisclosed income resulting into multiplicity of proceedings. In order to rectify this anomaly, a scheme of single assessment was introduced by inserting section 153A to Section 153D in the IT Act. 16.28 The purpose behind the introduction of section 153A/153C will get defeated, if the AO is allowed to assess/reassess the total income again in respect of completed asse proviso, except for the undisclosed income on the basis of incriminating material. If the view of the A.O. is accepted then the same will not only multiply assessment proceedings, but will also multiply the appella proceedings and create fictitious demands. 16.29 The Revenue's interest is entirely safeguarded in view of the fact that all appeal, revision or rectification proceedings in respect of assessments completed prior to the date of search shall continue in normal course. either by the assessee or the Revenue will continue to hold its ground and can be decided additions/ disallowances again in the r.w.. 153A of the IT Act is unwarranted. 16.30 In view of the aforesaid detailed discussion and judicial precedents, 1 am of the view that assessments which are completed Us 143(3) do not abate. Further, proceedings Us. 153C empower the AO to re material is found in the course of search which has some connection with the said issues. The assessing authority cannot disturb the assessment order which has attained course of search, establishes that the income computed in the finalized assessment was not in accordance with the facts unearthed during the course of search. 16.31 Respectfully following these binding deci completed proceedings u/s 143(3) will not abate and the AO is directed to follow the order of the CIT(A) and consider the same, while computing taxable income u/s 153C. The proceedings u/s 153C are not parallel proceedings and do Accordingly, this ground of appeal is decided in favour of the Appellant. ITA Nos. 1055 & 1559/Mum/2023 without there being an incriminating material that relates to the said assessment year which would justify such an addition. 16.27 The Memorandum explaining the provisions of Finance Bill 2003, stated that the then existing provisions contained in Chapter XIVB relating to block assessment prescribing single assessment of undisclosed income for block period, were introduced for avoidance of disputes, early finalisation of such assessments and reduction in of proceedings. However, there were parallel proceedings carried on namely regular assessment proceedings as well as block assessments for undisclosed income resulting into multiplicity of proceedings. In order to rectify this anomaly, a scheme of single assessment was introduced by inserting section 153A to Section 153D in 16.28 The purpose behind the introduction of section 153A/153C will get defeated, if the AO is allowed to assess/reassess the total income again in respect of completed assessments, in contradiction with the second proviso, except for the undisclosed income on the basis of incriminating material. If the view of the A.O. is accepted then the same will not only multiply assessment proceedings, but will also multiply the appella proceedings and create fictitious demands. 16.29 The Revenue's interest is entirely safeguarded in view of the fact that all appeal, revision or rectification proceedings in respect of assessments completed prior to the date of search shall continue in normal course. This indicates that the matters, which are being agitated either by the assessee or the Revenue will continue to hold its ground and can be decided course in the usual manner. As such, making same disallowances again in the proceedings under section 153C r.w.. 153A of the IT Act is unwarranted. 16.30 In view of the aforesaid detailed discussion and judicial precedents, 1 am of the view that assessments which are completed Us 143(3) do not abate. Further, proceedings Us. 153C r.w.s. 153A do not empower the AO to re-adjudicate the same issues again, unless fresh material is found in the course of search which has some connection with the said issues. The assessing authority cannot disturb the assessment order which has attained finality, unless the material gathered during the course of search, establishes that the income computed in the finalized assessment was not in accordance with the facts unearthed during the course of search. 16.31 Respectfully following these binding decisions, it is held that the completed proceedings u/s 143(3) will not abate and the AO is directed to follow the order of the CIT(A) and consider the same, while computing taxable income u/s 153C. The proceedings u/s 153C are not parallel proceedings and do not give power to the AO to re-adjudicate the issues. Accordingly, this ground of appeal is decided in favour of the Appellant. Grasim Industries Ltd. 13 ITA Nos. 1055 & 1559/Mum/2023 without there being an incriminating material that relates to the said 16.27 The Memorandum explaining the provisions of Finance Bill 2003, existing provisions contained in Chapter XIVB relating to block assessment prescribing single assessment of undisclosed income for block period, were introduced for avoidance of disputes, early finalisation of such assessments and reduction in of proceedings. However, there were parallel proceedings carried on namely regular assessment proceedings as well as block assessments for undisclosed income resulting into multiplicity of proceedings. In order to rectify this anomaly, a scheme of single assessment was introduced by inserting section 153A to Section 153D in 16.28 The purpose behind the introduction of section 153A/153C will get defeated, if the AO is allowed to assess/reassess the total income again ssments, in contradiction with the second proviso, except for the undisclosed income on the basis of incriminating material. If the view of the A.O. is accepted then the same will not only multiply assessment proceedings, but will also multiply the appellate 16.29 The Revenue's interest is entirely safeguarded in view of the fact that all appeal, revision or rectification proceedings in respect of assessments completed prior to the date of search shall continue in the This indicates that the matters, which are being agitated either by the assessee or the Revenue will continue to hold its ground course in the usual manner. As such, making same proceedings under section 153C 16.30 In view of the aforesaid detailed discussion and judicial precedents, 1 am of the view that assessments which are completed Us r.w.s. 153A do not adjudicate the same issues again, unless fresh material is found in the course of search which has some connection with the said issues. The assessing authority cannot disturb the assessment finality, unless the material gathered during the course of search, establishes that the income computed in the finalized assessment was not in accordance with the facts unearthed during the sions, it is held that the completed proceedings u/s 143(3) will not abate and the AO is directed to follow the order of the CIT(A) and consider the same, while computing taxable income u/s 153C. The proceedings u/s 153C are not parallel adjudicate the issues. Accordingly, this ground of appeal is decided in favour of the Appellant.” 7.1 We find that the ratio in the case of CIT v. Continental Warehousing Corporation (supra) has been upheld by the Hon’ble Supreme Court in the case of PCIT v. Abhisar Buildwell P. Ltd. (149 taxmann.com 399) (SC). In view of the decision of the Hon’ble Supreme court (supra) The ground Nos. 1 and 2 of the appeal of the Revenue are accordingly dismissed. 8. In ground Nos. 3 and 4 of the raised the same issue that the spill Ld. CIT(A) following the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing justified because the Revenue before the Hon’ble Supreme Court. The finding of the Ld. CIT(A) on the issue in dispute as under: “24.0 I have carefully considered the contentions of the AO, the submissions made by the Appellant Company and other materials on record, on the issue. 24.1 I find that the claim of spill over additional depreciation was allowed by the been withdrawn, while completing assessment u/s 153C. It is seen that the reason given for withdrawal by the AO is not at all related to any seized material found during the course of search operation. 24.2 While deciding the Ground No. 2 of this appeal, following the decision of the jurisdictional High court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), I have held that while making an assessment u/s 153C, the AO cannot disturb th proceedings, unless the material gathered in the course of search establish that the relief granted under the finalized assessment were contrary to the facts unearthed during the course of search operation. Thus, the action of the AO in withdra depreciation allowance is bad in law. ITA Nos. 1055 & 1559/Mum/2023 We find that the ratio in the case of CIT v. Continental Warehousing Corporation (supra) has been upheld by the Hon’ble preme Court in the case of PCIT v. Abhisar Buildwell P. Ltd. (149 taxmann.com 399) (SC). In view of the decision of the Hon’ble (supra), the contentions of the Revenue are rejected. . 1 and 2 of the appeal of the Revenue are ordingly dismissed. . 3 and 4 of the appeal, the Revenue has again d the same issue that the spillover depreciation deleted by t the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing the Revenue has challenged the said decision before the Hon’ble Supreme Court. The finding of the Ld. CIT(A) on te as under: 24.0 I have carefully considered the contentions of the AO, the submissions made by the Appellant Company and other materials on record, on the issue. 24.1 I find that the claim of spill over additional depreciation was allowed by the AO while completing assessment u/s 143(3), which has been withdrawn, while completing assessment u/s 153C. It is seen that the reason given for withdrawal by the AO is not at all related to any seized material found during the course of search operation. While deciding the Ground No. 2 of this appeal, following the decision of the jurisdictional High court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), I have held that while making an assessment u/s 153C, the AO cannot disturb the completed proceedings, unless the material gathered in the course of search establish that the relief granted under the finalized assessment were contrary to the facts unearthed during the course of search operation. Thus, the action of the AO in withdrawing the spillover additional depreciation allowance is bad in law. Grasim Industries Ltd. 14 ITA Nos. 1055 & 1559/Mum/2023 We find that the ratio in the case of CIT v. Continental Warehousing Corporation (supra) has been upheld by the Hon’ble preme Court in the case of PCIT v. Abhisar Buildwell P. Ltd. (149 taxmann.com 399) (SC). In view of the decision of the Hon’ble of the Revenue are rejected. . 1 and 2 of the appeal of the Revenue are the Revenue has again over depreciation deleted by the the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing (supra) is not has challenged the said decision before the Hon’ble Supreme Court. The finding of the Ld. CIT(A) on 24.0 I have carefully considered the contentions of the AO, the submissions made by the Appellant Company and other materials on 24.1 I find that the claim of spill over additional depreciation was while completing assessment u/s 143(3), which has been withdrawn, while completing assessment u/s 153C. It is seen that the reason given for withdrawal by the AO is not at all related to any seized material found during the course of search operation. While deciding the Ground No. 2 of this appeal, following the decision of the jurisdictional High court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), I have held that while making e completed proceedings, unless the material gathered in the course of search establish that the relief granted under the finalized assessment were contrary to the facts unearthed during the course of search operation. wing the spillover additional 24.3 I also find that on merits the claim of the Appellant is supported by the followings decisions: a) High Court of Karnataka b) Mumbai ITAT 791/Mum/2014) c) CIT, Madurai Vs. Shri T.P.Textiles (P.) Ltd. (246 High Court) d) MITC Rolling Mills P. Ltd. us. ACIT (Order dated 13.05.2013 No. 2789/Mum/2012) (Mumbai ITAT) e) Apollo Tyres Ltd Vs ACTT (64 SOT 203) (Cochin ITAT) f) DCIT Vs Cosmos Films Ltd (139 ITD 628)(Delhi ITAT) g) AMIT Vs SIL Investments Ltd. (148 TTJ 213)(Delhi ITAT) h) Century Enka Limited Vs DCIT (154 ITD 426)(Kolkatta 24.4 In view of the above discu decision of Jurisdictional High Court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), this ground of appeal is decided in favour of the Appellant. Thus, the AO is directed not to withdraw the sp allowed in the original assessment u/s 143(3) of the Act. 8.1 We have heard rival submission of the parties and perused the relevant material on record. of the appeal of the Revenue, Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation (supra) Supreme Court in the case of Abhisar Buildwell P Ltd. (supra) ,therefore, the contention of the Revenue raised ground Nos. 3 and 4 of the appeal of the Revenue are dismissed. 9. Now we take up the ground as ground No. 1 of the appeal of the assessee is concerned, we ITA Nos. 1055 & 1559/Mum/2023 24.3 I also find that on merits the claim of the Appellant is supported by the followings decisions: a) High Court of Karnataka - CIT v. Rittal India Pot Ltd [380 b) Mumbai ITAT - Grasim Bhiwani Textiles Limited Vs ACIT (ITA 790 & 791/Mum/2014) c) CIT, Madurai Vs. Shri T.P.Textiles (P.) Ltd. (246 Taxman324) (Madras MITC Rolling Mills P. Ltd. us. ACIT (Order dated 13.05.2013 No. 2789/Mum/2012) (Mumbai ITAT) Apollo Tyres Ltd Vs ACTT (64 SOT 203) (Cochin ITAT) DCIT Vs Cosmos Films Ltd (139 ITD 628)(Delhi ITAT) AMIT Vs SIL Investments Ltd. (148 TTJ 213)(Delhi ITAT) Century Enka Limited Vs DCIT (154 ITD 426)(Kolkatta ITAT) 24.4 In view of the above discussion and respectfully following the decision of Jurisdictional High Court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), this ground of appeal is decided in favour of the Appellant. Thus, the AO is directed not to withdraw the spillover additional depreciation allowance already allowed in the original assessment u/s 143(3) of the Act.” We have heard rival submission of the parties and perused the relevant material on record. While adjudicating ground No of the Revenue, we have held that the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental Warehousing Corporation (supra) has been approved by the Hon’ble Supreme Court in the case of Abhisar Buildwell P Ltd. (supra) e contention of the Revenue raised are rejected. The . 3 and 4 of the appeal of the Revenue are dismissed. Now we take up the grounds of appeal of the assessee. As far as ground No. 1 of the appeal of the assessee is concerned, we Grasim Industries Ltd. 15 ITA Nos. 1055 & 1559/Mum/2023 24.3 I also find that on merits the claim of the Appellant is supported by ITR 423] Grasim Bhiwani Textiles Limited Vs ACIT (ITA 790 & Taxman324) (Madras MITC Rolling Mills P. Ltd. us. ACIT (Order dated 13.05.2013 in ITA ITAT) ssion and respectfully following the decision of Jurisdictional High Court in the case of CIT Vs Continental Warehousing Corporation (374 ITR 645), this ground of appeal is decided in favour of the Appellant. Thus, the AO is directed not to illover additional depreciation allowance already We have heard rival submission of the parties and perused the hile adjudicating ground Nos. 1 and 2 the decision of the Hon’ble Bombay High Court in the case of CIT v. Continental approved by the Hon’ble Supreme Court in the case of Abhisar Buildwell P Ltd. (supra) are rejected. The . 3 and 4 of the appeal of the Revenue are dismissed. of appeal of the assessee. As far as ground No. 1 of the appeal of the assessee is concerned, we have already dismissed the ground of the Revenue challenging the additions made u/s 153C proceedings without aid of incriminating material and therefore, this ground therefore, we are not adjudicating upon. 10. As far as ground No. 2 of the appeal of the depreciation allowance consequent to withdrawal of depreciation allowance in earlier years. The finding of ld CIT(A) on the issue in dispute is reproduced as under: “28.0(sic) I have carefully Company and other materials placed on record, on this issue. 28.1(sic) The contention of the Appellant is that the AO has withdrawn spill over additional 10 and while computing allowable depreciation allowance for AY 2010-11 did not give effect of the same"to the opening written down value of the block of assets. The Appellant Company has challenged withdrawal of spill over additional depreciation allowance claim in A.Y. 2008-09 in income tax Appeal No. CIT(A) same is decided by me in favour of the Appellant Company. Also, the Income Tax Appeal No. CIT(A) 2009-10 has been decided in favour of the Appellant on t Thus, the grievance of the Appellant Company on this issue is already addressed. 28.2(sic) Accordingly, Ground No. 6 of the present appeal is dismissed.” (The paragraph numbers have been 34, 34.1 & 34.2 10.1 We find that ld CIT(A) has allowed the issue in favour of the assessee and only mistake committed is that in para erroneously mentioned as ground of the assessee was dismissed, but actually in para decided in favour of the assessee , thus this ground of appeal is non ITA Nos. 1055 & 1559/Mum/2023 y dismissed the ground of the Revenue challenging the additions made u/s 153C proceedings without aid of incriminating material and therefore, this ground is rendered only , we are not adjudicating upon. As far as ground No. 2 of the appeal of the assessee relates allowance consequent to withdrawal of depreciation allowance in earlier years. The finding of ld CIT(A) on the issue in dispute is reproduced as under: I have carefully considered the submissions of the Appellant Company and other materials placed on record, on this issue. The contention of the Appellant is that the AO has withdrawn spill over additional depreciation allowance in AY 2008-09 & AY 2009 le computing allowable depreciation allowance for AY 11 did not give effect of the same"to the opening written down value of the block of assets. The Appellant Company has challenged withdrawal of spill over additional depreciation allowance claim in 09 in income tax Appeal No. CIT(A)-47/840/16-17 and the is decided by me in favour of the Appellant Company. Also, the Income Tax Appeal No. CIT(A)-47/841/16-17 of the Appellant for AY 10 has been decided in favour of the Appellant on t Thus, the grievance of the Appellant Company on this issue is already Accordingly, Ground No. 6 of the present appeal is The paragraph numbers have been wrongly mentioned as ‘para , 34.1 & 34.2’ in the impugned order.) 10.1 We find that ld CIT(A) has allowed the issue in favour of the assessee and only mistake committed is that in para erroneously mentioned as ground of the assessee was dismissed, but actually in para 28.1 as reproduced above , issue has been decided in favour of the assessee , thus this ground of appeal is non Grasim Industries Ltd. 16 ITA Nos. 1055 & 1559/Mum/2023 y dismissed the ground of the Revenue challenging the additions made u/s 153C proceedings without aid of incriminating rendered only academic, assessee relates to allowance consequent to withdrawal of depreciation allowance in earlier years. The finding of ld CIT(A) on the issue in considered the submissions of the Appellant Company and other materials placed on record, on this issue. The contention of the Appellant is that the AO has withdrawn 09 & AY 2009- le computing allowable depreciation allowance for AY 11 did not give effect of the same"to the opening written down value of the block of assets. The Appellant Company has challenged withdrawal of spill over additional depreciation allowance claim in 17 and the is decided by me in favour of the Appellant Company. Also, the 17 of the Appellant for AY 10 has been decided in favour of the Appellant on this issue. Thus, the grievance of the Appellant Company on this issue is already Accordingly, Ground No. 6 of the present appeal is wrongly mentioned as ‘para 10.1 We find that ld CIT(A) has allowed the issue in favour of the assessee and only mistake committed is that in para 28.2 he has erroneously mentioned as ground of the assessee was dismissed, , issue has been decided in favour of the assessee , thus this ground of appeal is non maintainable and dismissed as infructuous. The ground No. appeal is dismissed. 11. The ground no. 3 of the appeal of the assessee relates to depreciation of Rs.29,56,250/ by the ld CIT(A). The Ld. CIT(A) “36.0 I have carefully examined the issue and the submissions made by the Appellant Company. 36.1 In the appeals of the Appellant Company 47/840/16-17 for the AY 2008 17 for AY 2009 Appellant Company and held that the said transactions were just accommodation entries. In view of thi years, the consequential depreciation on such accommodation entries for the current year under consideration, needs to be disallowed. 36.2 Accordingly, the addition of Rs. 29,56,250/ towards depreciation Ground No. 6 of the present appeal is dismissed. 11.1 We have heard rival submission of the parties and perused the relevant material on record. This is the issue of consequential effect of the order of the earl for assessment year 2008 adjudicated by the Tribunal in ITA No. 1053 & 1054/M/2019 dated 31.05.2023 and therefore, the Ld. Assessing Officer give consequent effect has been deleted, then no further disallowance of depreciation is required in the year under consideration. The ground No. 3 of the appeal of the assessee purposes. ITA Nos. 1055 & 1559/Mum/2023 maintainable and dismissed as infructuous. The ground No. 11. The ground no. 3 of the appeal of the assessee relates to .29,56,250/- disallowed by the AO and sustained he Ld. CIT(A) has adjudicated the issue as under: 36.0 I have carefully examined the issue and the submissions made by the Appellant Company. 36.1 In the appeals of the Appellant Company in Appeal No. CIT(A) 17 for the AY 2008-09 and Appeal No. CIT(A)- 17 for AY 2009-10, I have decided the substantive grounds against the Appellant Company and held that the said transactions were just accommodation entries. In view of this conclusive finding in the earlier years, the consequential depreciation on such accommodation entries for the current year under consideration, needs to be disallowed. 36.2 Accordingly, the addition of Rs. 29,56,250/- made by the AO towards depreciation on other buildings is confirmed. Hence, the Ground No. 6 of the present appeal is dismissed.” We have heard rival submission of the parties and perused the relevant material on record. This is the issue of consequential effect of the order of the earlier years 2008-09 and 2009-10. The appeals for assessment year 2008-09 and 2009-10 have already been adjudicated by the Tribunal in ITA No. 1053 & 1054/M/2019 dated 31.05.2023 and therefore, the Ld. Assessing Officer consequent effect. If the disallowance made in respect of assets then no further disallowance of depreciation is required in the year under consideration. The ground No. 3 of the appeal of the assessee is accordingly allowed for statistical Grasim Industries Ltd. 17 ITA Nos. 1055 & 1559/Mum/2023 maintainable and dismissed as infructuous. The ground No.2 of the 11. The ground no. 3 of the appeal of the assessee relates to disallowed by the AO and sustained adjudicated the issue as under: 36.0 I have carefully examined the issue and the submissions made by in Appeal No. CIT(A)- -47/841/16- 10, I have decided the substantive grounds against the Appellant Company and held that the said transactions were just s conclusive finding in the earlier years, the consequential depreciation on such accommodation entries for the current year under consideration, needs to be disallowed. made by the AO on other buildings is confirmed. Hence, the We have heard rival submission of the parties and perused the relevant material on record. This is the issue of consequential effect 10. The appeals 10 have already been adjudicated by the Tribunal in ITA No. 1053 & 1054/M/2019 dated 31.05.2023 and therefore, the Ld. Assessing Officer is required to f the disallowance made in respect of assets then no further disallowance of depreciation is required in the year under consideration. The ground No. 3 of the accordingly allowed for statistical 12. In the result, the appeal of the Revenue is dismissed whereas appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on Sd/ (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 29/04/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// ITA Nos. 1055 & 1559/Mum/2023 n the result, the appeal of the Revenue is dismissed whereas appeal of the assessee is partly allowed for statistical purposes. nounced in the open Court on 29/04/2024. Sd/- Sd/ KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Grasim Industries Ltd. 18 ITA Nos. 1055 & 1559/Mum/2023 n the result, the appeal of the Revenue is dismissed whereas appeal of the assessee is partly allowed for statistical purposes. /04/2024. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai