Geetha Jayamurugan, CHENNAI V. DCIT, CHENNAI

ITA 2264/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7853 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 14-12-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: N QUADIR HOSEYN; L NATARAJAN
• Section: 143(3); 54F; 153A; 234B; 132

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI G. PAVAN KUMAR , JUDICI AL MEMBER I.T.A.NO S . 2262, 2263, 2264, 2265, 2266, 2267 AND 2268 /MDS/2015 ASSESSMENT YEAR S : 20 07 - 08, 20 08 - 09, 20 09 - 10, 20 10 - 11, 20 11 - 12, 20 12 - 13 & 20 13 - 14 SMT. GEETHA JAYAMURUGAN, OLD NO. 20, NEW NO. 4, CHITTARANJAN ROAD, TEYNAMPET, CHENNAI 600 018. [PA N: A A GPG9419F ] VS. THE DEPUTY COMMISSIONER OF INCOME TAX , C ENTRAL CIRCLE 2 ( 1 ), CHENNAI. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI N. QUADIR HOSEYN , ADVOCATE & SHRI L. NATARAJAN, C.A. / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT / DATE OF HEARING : 16.02.2016 / DATE OF P RONOUNCEMENT : 04 .0 3 .201 6 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER : ALL THE ABOVE APPEALS OF THE SAME ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX ACT (APP EALS) 18, CHENNAI DATED 09.10.2015 RELEVANT TO THE ASSESSMENT YEARS 2007 - 08, 2008 - 09, 2009 - 10, 2010 - 11, 2011 - 12, 2012 - 13 AND 2013 - 14. THE ISSUES INVOLVED IN ALL THESE APPEALS ARE COMMON IN NATURE, HEARD TOGETHER AND BEING DISPOSED OF BY THIS COMMON ORDER F OR THE SAKE BREVITY. I.T.A. NOS. 2262 - 2268/M/15 2 2. BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SEARCH CONDUCTED UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] IN THE BUSINESS PREMISES OF THE ASSESSEE I.E. HOTEL ANITHA TOWERS ON 15.05.2012. CONSEQUENT TO THIS, NOTI CE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 15.03.2013. FOR THE ASSESSMENT YEAR 2007 - 08, THE ASSESSEE HAS REPLIED VIDE HER LETTER DATED 12.04.2013 THAT THE RETURN FILED ON 14.05.2008 BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153 A OF THE ACT. FOR THE ASSESSMENT YEAR 2008 - 09, IT WAS STATED VIDE HER LETTER DATED 12.04.2013 THAT THE RETURN FILED ON 11.12.2009 BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT. FOR THE ASSESSMENT YEAR 2009 - 10, IT WAS ST ATED VIDE HER LETTER DATED 12.04.2013 THAT THE RETURN FILED ON 15.02.2010 BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT. FOR THE ASSESSMENT YEAR 2010 - 11, IT WAS STATED VIDE HER LETTER DATED 12.04.2013 THAT THE RETURN FI LED ON 01.04.2011 BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT. FOR THE ASSESSMENT YEAR 2011 - 12, IT WAS STATED VIDE HER LETTER DATED 12.04.2013 THAT THE RETURN E - FILED ON 30.09.2011 BE TREATED AS RETURN FILED IN RESPON SE TO THE NOTICE UNDER SECTION 153A OF THE ACT. FOR THE ASSESSMENT YEAR 2012 - 13, IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE HAS FILED THE RETURN ON 11.03.2014 DECLARING INCOME OF .9,79,49,860/ - . FOR THE ASSESSMENT YEAR 2013 - 14, SHE HAS FILED THE RETURN ON 06.12.2013 DECLARING INCOME OF .3,71,63,300/ - . I.T.A. NOS. 2262 - 2268/M/15 3 3. SUBSEQUENTLY, THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT DATED 01.08.2014 AND ALSO NOTICE UNDER SECTION 143(1) OF THE ACT ON 18.11.2014 FOR ALL TH ESE ASSESSMENT YEARS. THE ASSESSING OFFICER FRAMED THE ASSESSMENT FOR EACH ASSESSMENT YEAR AS FOLLOWS: 01. ASSESSMENT YEAR 2007 - 08 TOTAL INCOME AS RETURNED BY THE ASSESSEE . 17,19,84,270 DISALLOWANCE OF AGRICULTURAL INCOME . 5,00,000 TOTAL ASSE SSED INCOME . 17,24,84,270 02. ASSESSMENT YEAR 2008 - 09 TOTAL INCOME AS DETERMINED VIDE ORDER UNDER SECTION 143(3) DATED 06.12.2010 . 18,92,24,108 DISALLOWANCE OF AGRICULTURAL INCOME . 5,00,000 DISALLOWANCE UNDER SECTION 40(A)(III) . 80,000 TOTAL ASSESSED INCOME . 18,98,04,108 03. ASSESSMENT YEAR 2009 - 10 TOTAL INCOME AS DETERMINED VIDE ORDER UNDER SECTION 143(3) DATED 09.12.2011 . 2,67,33,355 DISALLOWANCE OF AGRICULTURAL INCOME . 6,00,000 TOTAL ASSESSED INCOME . 2,73,33,35 5 04. ASSESSMENT YEAR 2010 - 11 TOTAL INCOME AS RETURNED BY THE ASSESSEE . 30,78,70,181 DISALLOWANCE OF AGRICULTURAL INCOME . 10,88,850 TOTAL ASSESSED INCOME . 30,89,59,031 I.T.A. NOS. 2262 - 2268/M/15 4 05. ASSESSMENT YEAR 2011 - 12 TOTAL INCOME AS RETURNED BY THE AS SESSEE . 15,78,60,816 DISALLOWANCE OF AGRICULTURAL INCOME . 7,50,000 TOTAL ASSESSED INCOME . 15,86,10,816 06. ASSESSMENT YEAR 2012 - 13 TOTAL INCOME AS RETURNED BY THE ASSESSEE . 9,79,49,860 DISALLOWANCE OF AGRICULTURAL INCOME . 4,30,200 WITHDRAWAL OF EXEMPTION UNDER SECTION 54F . 80,30,421 TOTAL ASSESSED INCOME . 10,64,10,481 07. ASSESSMENT YEAR 2013 - 14 TOTAL INCOME AS RETURNED BY THE ASSESSEE . 3,71,63,300 DISALLOWANCE OF AGRICULTURAL INCOME . 4,82,050 TOTAL ASSESSE D INCOME . 3,76,45,350 4. NOW, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT OUT OF THE ASSESSMENT YEARS 2007 - 08 TO 2013 - 14, THE ASSESSMENT FOR THE ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 WERE COMPLETED UNDER SECTION 143(3) OF THE ACT. HENCE, THE ASSESSMENTS, WHICH ARE ALREADY COMPLETED, EITHER UNDER SECTION 143(1) OR UNDER SECTION 143(3) OF THE ACT, CANNOT BE REOPENED. IN OTHER WORDS, IT WAS SUBMITTED THAT IF AN ORDER ALREADY IN EXISTENCE, HAVING OBVIOUSLY PASSED PRIOR TO INCISION OF SEARCH/R EQUISITION, THE ASSESSING OFFICER, IF EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTE TO THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSMENT REOPENED FOR THE ASSESSMENT YEARS I.T.A. NOS. 2262 - 2268/M/15 5 2007 - 08 TO 2010 - 11 CANNOT BE SURVIVE AS THERE WAS NO INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH RELATING TO THESE ASSESSMENT YEARS. THE ADDITION MADE ON THESE ASSESSMENT YEARS IS ONLY AN AD - HOC ADDITION BY TREATING THE AGRICULTURAL INCOME AS NON - AGRICULTURAL INCOME IN ARBITRARY BASIS WITHOUT REFERENCE TO ANY SEIZED MATERIAL OR INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH AND THE ASSESSMENTS ARE NOT PENDING AS ON THE DATE OF SEARCH AND DUE TO LAPSE OF TIME TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT IS ALREADY OVER. 5. ON THE CONTRARY, THE LD. DR HAS SUBMITTED DURING THE COURSE OF SEARCH OPERATION, THE MATERIAL GATHERED SHOWS THAT THE ASSESSEE, WITHOUT HAVING NO AGRICULTURAL INCOME OR THE ASSESSEE HAS IN FLATED THE AGRICULTURAL INCOME AND AS SUCH, PRIMA FACIE , THE AGRICULTURAL INCOME WAS TREATED AS NON - AGRICULTURAL INCOME AND BROUGHT TO TAX WHILE FRAMING ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MAT ERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, THERE WAS A SEARCH AT THE ASSESSEE S PREMISES ON 15.05.2012. CONSEQUENT TO THIS, NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 15.03.2013. FOR THE ASSESSMENT YEARS 2007 - 0 8 TO 201 1 - 12 , THE ASSESSEE HAS STATED THAT THE RETURNS ALREADY FILED WERE TO BE TREATED AS RETURN FILED AGAINST THE NOTICE UNDER SECTION 153A OF THE ACT. ACCORDINGLY, THE ASSESSMENT WAS COMPLETED FOR THE ASSESSMENT YEARS 2007 - I.T.A. NOS. 2262 - 2268/M/15 6 08. IN THE COURSE OF ASSESSMEN T, THE ASSESSING OFFICER MADE ADDITION, PRIMA FACIE, DISALLOWING CERTAIN AGRICULTURAL INCOME AS NON - AGRICULTURAL INCOME AND ALSO DISALLOWANCE UNDER SECTION 40(A)(III) OF THE ACT. NOW, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE ASSESSMEN T FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 ALREADY COMPLETED EITHER UNDER SECTION 143(1) OR 143(3) AND THERE IS NO PENDENCY OF ASSESSMENT SO AS TO ABATE THE ASSESSMENT. FURTHER, WHERE, THERE IS NO SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH, THE ASSESSMENT UNDER SECTION 153A BE FRAMED ONLY ON THE BASIS OF ORIGINAL ASSESSMENT, WHICH IS UNDER SECTION 143(1) OR 143(3) OF THE ACT. ADMITTEDLY, IN THESE ASSESSMENT YEARS, THE SEARCH TOOK PLACE ON 15.05.2012. AS ON THIS DAY, THE ASSESSEE HAS ALREADY FILED RETURN OF INCOME FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. IT IS ALSO ON RECORD THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 WAS COMPLETED UNDER SECTION 143(3) AND THE ASSESSING OFFICER ACCEPTED AGRICULTURAL INCOME IN THESE ASSESSME NT YEARS. THE TIME LIMIT FOR ISSUING NOTICE FOR OTHER ASSESSMENT YEARS HAS ALREADY EXPIRED BY THIS TIME AND THEREBY, THE ASSESSMENT S STATED TO BE REACHED FINALITY BY OPERATION OF LAW FOR THE ASSESSMENT YEARS 2007 - 08 TO 201 1 - 1 2 AS ON THE DATE OF SEARCH AS T HE TIME LIMIT TO ISSUE NOTICE FOR THESE ASSESSMENT YEARS IS ALREADY OVER. BEING SO, NO ASSESSMENT OR REASSESSMENT OR PENDING ASSESSMENT AT THE TIME OF SEARCH CARRIED OUT ON 15.05.2012. IN RESPECT OF THESE ASSESSMENT YEARS, SECTION 153A EMPOWERS THE ASSESSI NG OFFICER TO COMPLETE THE ASSESSMENT FOR 6 CONSEQUENT ASSESSMENT YEARS CONSEQUENT TO I.T.A. NOS. 2262 - 2268/M/15 7 SEARCH ACTION UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A OF THE ACT. IT IS ALSO TO BE NOTED THAT THE ASSESSMENT AS WELL AS REASSESSMENT ARE POSSIBLE IN THE CASE OF PENDING ASSESSMENT. FURTHER, WHEN THE ASSESSMENTS ARE ALREADY COMPLETED AND NO ASSESSMENTS ARE PENDING AT THE TIME OF ISSUE OF NOTICE UNDER SECTION 153A, REASSESSMENT CAN BE MADE ONLY IF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND I TEM CONCLUDED IN EARLIER ASSESSMENT CANNOT BE CONSIDERED IN THE REASSESSMENT UNDER SECTION 153A OF THE ACT. IN OTHER WORDS, THE SCOPE OF ASSESSMENT UNDER SECTION 153A CAN BE SUMMARIZED DIAGRAMMATICALLY AS UNDER: SEARCH SECTION 153A FOR 6 YEARS A SSESSMENT PENDING [ABATED] ASSESSMENT NOT PENDING 153A R.W.S. 143(3) TO BE FRAMED AS PER PROVISION INCRIMINATING MATERIAL FOUND NO INCRIMINATING MATERIAL FOUND ASSESSMENT TO BE FRAMED ASSESSMENT U/S 153A TO BE MADE ONLY AS PER THE ASSESSING THE INCOME UNEARTHED ORIGINAL ASSESSMENT WHETHER U/S UNDER SEARCH + ORIGINAL ASSESSED 143( 1 ) OR 143(3) INCOME ASSESSMENT U/S 153A OR U/S 143(3) I.T.A. NOS. 2262 - 2268/M/15 8 7. THUS, AS SEEN FROM THE ABOVE CHART, WHEN NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF ALREADY COMPLETED ASSESSMENT DOES NOT ARISE. THE UNDERLINE PURPOSE OF MAKING ASSESSMENT OF A TOTAL INCOME UNDER SECTION 153A OF THE ACT IS THEREFORE, TO ASSESS THE INCOM E, WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. THE SECOND PROVISO TO SECTION 153A OF THE ACT PROVIDES FOR ABATEMENT OF ASSESSMENT OR REASSESSMENT ONLY FOR THE REASON THAT THERE CANNOT BE TWO ASSESSMENTS FOR A SINGLE ASSESSMENT YEAR. THE REASS ESSMENT IS PERMITTED IN AN ASSESSMENT UNDER SECTION 153A OF THE ACT WHEN INCRIMINATING MATERIALS ARE FOUND IN THE COURSE OF SEARCH. IN THE PRESENT CASE, FOR THE ASSESSMENT YEAR 2007 - 08 TO 2010 - 11, THERE IS NO REFERENCE OF ANY INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH TO FRAME ASSESSMENT UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER CONSIDERED THE ORIGINAL RETURN ALREADY FILED IN NORMAL COURSE AND REASSESSING THE INCOME OF THE ASSESSEE AND OBSERVING THAT THE ASSESSED AGRICULTURAL INCOME IS EXCESS OVER THERE IS NO INCRIMINATING MATERIAL TO SUGGEST THAT THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE IS EXCESS. FURTHER, IT IS ALREADY CONCLUDED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 WHILE FRAMING ASSESSMENT UN DER SECTION 143(3) OF THE ACT AND ACCEPTED THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE. I.T.A. NOS. 2262 - 2268/M/15 9 8. AT THIS STAGE, IT IS APPROPRIATE TO MENTION THE RATIO LAID DOWN BY THE ORDER OF THE MUMBAI SPECIAL BENCH DECISION OF THE TRIBUNAL IN ALL CARGO GLOBAL LOGISTIC LTD. V/S DCIT, [2012] 137 ITR 287 (SB) (MUM.) , AFTER ANALYZING THE RELEVANT PROVISIONS OF THE ACT, CAME TO THE FOLLOWING CONCLUSION AND RATIO: (A) IN ASSESSMENT THAT ARE ABATED, THE ASSESSING OFFICER RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISD ICTION CONFERRED ON HIM UNDER SECTION 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 UNDER SECTION 153A WILL BE MADE O N THE BASIS OF INCRIMINATING MATERIAL WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 9. IN THIS CASE, THE QUESTION ANSWERED IN CLAUSE (B) WOULD BE APPLICABLE AS THE ADDITION IN THE ASSESSMENT ORDER PASSED UNDER SECTION 153A, CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH IN C ASE WHERE THE ASSESSMENT HAS ALREADY BEEN FINALIZED. THUS, IN THIS CASE, NO ADDITION CAN BE MADE OVER AND ABOVE THE RETURNED INCOME WHICH HAS BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE IS NO MATERIAL FOUND AT THE TIME OF SEARCH. THE AFORESAID MUMBA I SPECIAL BENCH DECISION OF THE TRIBUNAL IN ALL CARGO GLOBAL LOGISTIC LTD. (SUPRA) HAS ALSO BEEN REAFFIRMED AND APPLIED BY THE MUMBAI B ENCH ES OF THE TRIBUNAL IN THE CASE OF GURINDER SINGH BAWA V . DCIT [2012] 28 TAXMAN.COM 328 (MUM.) . THE RELEVANT OBSERVATI ON OF THE TRIBUNAL IS REPRODUCED HEREIN BELOW: I.T.A. NOS. 2262 - 2268/M/15 10 6. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RIVAL CONTENTIONS CAREFULLY. THE DISPUTE RAISED IS REGARDING LEGAL VALIDITY OF ADDITION MADE BY AO UNDER SECTION 153A OF THE ACT. UNDER THE PROVISIONS OF SE CTION 153A, IN ALL CASES, WHERE SEARCH IS CONDUCTED UNDER SECTION 132 OF THE ACT, AO IS EMPOWERED TO ASSESS OR REASSESS TOTAL INCOME OF SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH WAS CONDUCTED. THE SECTION ALSO PROVIDES THAT ASSESSM ENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN PERIOD OF SIX ASSESSMENT YEAR IF PENDING ON THE DATE OF INITIATION OF SEARCH SHALL ABATE. THERE HAVE BEEN DIVERGENT VIEWS REGARDING SCOPE OF APPLICATION OF SECTION 153A IN CASES WHERE NO IN CRIMINATING MATERIAL WAS FOUND INDICATING ANY UNDISCLOSED INCOME. SOME OF THE TRIBUNAL BENCHES HAD TAKEN THE VIEW THAT IN CASE NO INCRIMINATING MATERIAL WAS FOUND AO HAD NO JURISDICTION TO MAKE ASSESSMENT OR REASSESSMENT UNDER SECTION 153A WHILE SOME OTHER BENCHES HELD THAT JURISDICTION UNDER SECTION 153A WAS AUTOMATIC TO REASSESS SIX IMMEDIATE PRECEDING ASSESSMENT YEARS IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL WAS FOUND OR NOT. ANOTHER ASPECT ON WHICH THERE HAD BEEN DIVERGENT VIEWS WAS W HETHER EVEN IF AO HAD JURISDICTION UNDER SECTION 153A, ADDITION CAN BE MADE IN ASSESSMENT/ REASSESSMENT ONLY WHEN SOME INCRIMINATING MATERIAL HAS BEEN FOUND. ALL THESE ASPECTS HAD BEEN REFERRED TO THE SPECIAL BENCH OF THE TRIBUNAL IN CASE OF AL L CARGO GLOB AL LOGISTICS LTD. AND ORDER OF SPECIAL BENCH DATED 6.7.2012 HAS BEEN REFERRED. 6.1 THE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA), HAS HELD THAT PROVISIONS OF SECTION 153A COME INTO OPERATION IF A SEARCH OR REQUISITION IS INITIA TED AFTER 31.5.2003 AND ON SATISFACTION OF THIS CONDITION, THE AO IS UNDER OBLIGATION TO ISSUE NOTICE TO THE PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME FOR SIX YEARS IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE SPECIAL BENCH FURTHER HELD THAT IN CASE ASSESSMENT HAS ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION UNDER SECTION 153A FOR WHICH ASSESSMENT SHALL BE MADE FOR EACH ASSESSMENT YEAR SEPARATELY. THUS IN CASE WHERE ASSESSMENT HAS ABATED THE AO CAN MAKE ADDITIONS IN T HE ASSESSMENT, EVEN IF NO INCRIMINATING MATERIAL HAS BEEN FOUND. BUT IN OTHER CASES THE SPECIAL BENCH HELD THAT THE ASSESSMENT UNDER M/S. GOVIND AGARWAL (HUF) 6 SECTION 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIAL WHICH IN THE CONTEXT OF RELEVAN T PROVISIONS MEANS BOOKS OF ACCOUNT AND OTHER DOCUMENTS FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND UNDISCLOSED INCOME OR PROPERTY DISCLOSED DURING THE COURSE OF SEARCH. IN THE PRESENT CASE, THE ASSESSMENT HAD BE EN COMPLETED UNDER SUMMARY SCHEME UNDER SECTION 143(1) AND TIME LIMIT FOR ISSUE OF NOTICE UNDER SECTION 143(2) HAD EXPIRED ON THE DATE OF SEARCH. THEREFORE, THERE WAS NO ASSESSMENT PENDING IN THIS CASE AND IN SUCH A CASE THERE WAS NO QUESTION OF ABATEMENT. THEREFORE, ADDITION COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. I.T.A. NOS. 2262 - 2268/M/15 11 10. FURTHER, THE COORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF SREE GOPALAKRISHNA FABRICS V. DCIT IN I.T.A. NOS. 788 TO 794/MDS/2015 VIDE ORDER DAT ED 27.11.2015 HAS TAKEN SIMILAR VIEW. 11. MOREOVER, IN THE CASE OF JAI STEEL (INDIA) V. ACIT [2013] 259 CTR 281, THE HON BLE RAJASTHAN HIGH COURT HAS HELD THAT IN CASE NOTHING INCRIMINATING MATERIAL IS FOUND ON ACCOUNT OF SEARCH OF SEARCH OR REQUISITION THEN THE QUESTION OF REASSESSMENT OF CONCLUDED ASSESSMENT DOES NOT ARISE. IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAS NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH, SUCH BOOKS OF ACC OUNT OR OTHER DOCUMENTS ARE TO BE TAKEN INTO CONSIDERATION WHILE ASSESSING OR REASSESSING THE TOTAL INCOME UNDER THE PROVISION OF SECTION 153A OF THE ACT. THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER SECTION 153A HAD TO BE READ IN THE CONTEXT OF SEC TION 132 OR UNDER SECTION 132A OF THE ACT IN AS MUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF CONCLUDED ASSESSMENT DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF ABATED ASSESSMENT UNDER SECOND PROVISO, WHICH IS REQUIRED TO BE ASSESSED. THUS, IT IS APPARENT FROM THE ABOVE THAT (A) THE ASSESSMENT OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT, THE ASSESSING OFFICER ACTS UNDER HIS ORIGINAL JURISDICTION FOR WHICH ASSESSMENTS, HAVE TO BE MADE; (B) REGARDING I.T.A. NOS. 2262 - 2268/M/15 12 OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT AND REASSESSMENT CAN BE MADE. 12. THUS, IN OUR OPINION, THE ASSESSMENT S OF 200 7 - 0 8 TO 201 1 - 1 2 , WHICH ARE NOT BASED ON ANY INCRIMINATING AN D THEREFORE THE ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT CANNOT BE STAND ON ITS OWN LEG, WHICH ARE NOT FRAMED ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATION AND THEY DO NOT CONF O RM THE MANDATE OF SECTION 153A OF THE ACT. ACCORDINGLY, THE ASSESSMENT S FRAMED UNDER SECTION 153A R.W.S. 143(3) FOR THE ASSESSMENT YEARS 2007 - 08 TO 201 1 - 1 2 [F IVE ASSESSMENT YEARS] ARE QUASHED. 1 3 . COMING TO THE ASSESSMENT YEAR 201 2 - 13 AND 201 3 - 1 4 , THERE IS A TIME LIMIT TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND THE PENDING ASSESSMENT WERE ABATED FOR THESE ASSESSMENT YEARS AND FRAMING ASSESSMENT OF THESE ASSESSMENT YEAR S ARE VALID. FURTHER, REGARDING DISALLOWANCE OF AGRICULTURAL INCOME IN 153A ASSESSMENT, WHEN THERE IS NO MATER IAL TO SUGGEST THAT THE ASSESSEE IS HAVING LESSER AGRICULTURAL INCOME, WHAT IS STATED SO AS TO REDUCE IT AND TREAT AS INCOME FROM OTHER SOURCES. M ORE SO IN THE ASSESSMENT YEAR 2008 - 09 VIDE ASSESSMENT ORDER DATED 06.12.2010 AND FOR ASSESSMENT YEAR 2009 - 10 D ATED 09.12.2011, THE ASSESSING OFFICER HAS ACCEPTED THE RETURNED AGRICULTURAL INCOME AND WHEN NO INCRIMINATING MATERIAL FOUND TO I.T.A. NOS. 2262 - 2268/M/15 13 SUGGEST THE AGRICULTURAL INCOME IS NON - AGRICULTURAL INCOME AND ARBITRAR ILY DISALLOWING THE SAME BY THE ASSESSING OFFICER AND THE LD. CIT(A) ARE NOT JUSTIFIED. ACCORDINGLY, THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE HAS TO BE ACCEPTED. 1 4 . REGARDING DISALLOWANCE OF DEDUCTION UNDER SECTION 54F, THE PLEA OF THE LD. DR I S THAT THE ASSESSEE HAS PURCHASED THE COMMERCIAL LAND, AS SUCH, THE ASSESSEE HAS NOT ENTITLED FOR CLAIMING DEDUCTION UNDER SECTION 54F OF THE ACT. THE LD. DR RELIED ON THE JUDGMENT IN THE CASE OF ITO V S . ROHINI REDDY 122 ITD 1. 1 5 . ON THE OTHER HAND, T HE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE PURCHASED THE PLOT FOR THE PURPOSE OF CONSTRUCTING RESIDENTIAL BUILDING AND IT IS IN THE PROCESS OF THE SAME AND THERE IS A TIME LIMIT OF THREE YEARS AFTER TRANSFER OF ASSET TO CONSTRUCT A NEW RESIDENTIAL HOUSE IN ORDER TO AVAIL EXEMPTION UNDER SECTION 54F OF THE ACT AND HE ALSO RELIED ON THE CBDT CIRCULAR NO. 667 DATED 18.10.1983 FOR A PROPOSITION THAT THE COST OF RESIDENTIAL HOUSE ALSO INCLUDES THE COST OF THE PLOTS ALSO. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, IN THE ASSESSMENT YEAR UNDER CONSIDERATION, THE CLAIM OF THE ASSESSEE UNDER SECTION 54F CANNOT BE DENIED AND IF AT ALL IT HAS TO BE DENIED, IT CAN BE ONLY AFTER THE EXPIRY OF THREE YEARS FROM THE DATE OF TRANSFER OF ASSET. 1 6 . WE FIND FORCE IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE. THE I.T.A. NOS. 2262 - 2268/M/15 14 ASSESSEE HAVING PURCHASED THE LAND BY INVESTING CAPITAL GAINS AND THE INTENTION TO CONSTRUCT A RESIDENTIAL BUILDING, FOR WHICH , THE ASSESSEE HAVE A PERIOD OF THREE YEARS TO CONSTRUCT A NEW RESIDENTIAL BUILDING AND IF AT ALL THE ASSESSEE FAIL S TO COMPLY WITH THE REQUIREMENT OF SECTION 54F AS PER PROVISO TO SECTION 54F(1 ) TO ( 4) OF THE ACT , THEN ONLY IT CAN BE DENIED . 17. FURTHER, INTEREST UNDER SECTION 234A IS CHARGEABLE FROM THE DATE OF EXPIRY OF THE NOTICE PERIOD GIVEN UNDER SECTION 153A TO THE DATE OF COMPLETING THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A AS HELD BY THE TRIBUNAL IN THE CASE OF ACIT V. VN. DEVADOSS [93 DTR 73 CHENNAI (TRIB.). THE INTEREST UNDER SECTION 234B IS TO BE LEVIED ONLY ON THE ADDITIONAL TAX LEVIED ON THE ENHANCED INCOME DETERMINED UNDER SECTION 143(3) R.W.S. 153A. THEREFORE, THE PERIOD OF CHARGING OF INTEREST SHOULD BE FROM THE DATE OF DETERMINATION OF INCOME UNDER SECTION 143(1) OR 143(3) TO THE DETERMINA TION OF ENHANCED INCOME UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. 18. ACCORDINGLY, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THE 4 TH MARCH , 2016 AT CHENNAI. SD/ - SD/ - ( G. PAVAN KUMAR ) JUDICIAL MEMBER ( CHANDRA POOJARI ) ACCOUNT ANT MEMBER CHENNAI, DATED, THE 04 . 0 3 .201 6 VM/ - I.T.A. NOS. 2262 - 2268/M/15 15 / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.