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Sanjay Aggarwal, 23/05,. Shakti Nagar, New Delhi v. Dcit, Central Circle-5, New Delhi .

Income Tax Appellate Tribunal

Jun 16, 2014

Judgment

CaseIQ

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Factual and Procedural Background

This appeal by the assessee arises from the order of the Commissioner of Income Tax (Appeals) dated 30.03.2013 in relation to assessment year 2003-04. A search and seizure under section 132 of the Income-tax Act, 1961 was conducted on 31.07.2008 in connection with the Rajdarbar Group. Pursuant to notices under section 153A, the assessee filed returns including a declared long-term capital loss of Rs. 5,87,272 on the sale of a flat in DLF, Gurgaon.

The assessee claimed the property was inherited from his father who originally purchased it for Rs. 14,32,674; the assessee sold it for Rs. 9,90,050. The Assessing Officer observed absence of conveyance deed and noted that the plot was sold prior to 15.06.2002; he held the property was held for less than 36 months and rejected the long-term classification. The AO concluded that the transaction was fabricated to introduce unaccounted funds and made an addition of Rs. 9,90,050 under section 68. The CIT(A) sustained that addition. The assessee appealed to the Tribunal and additionally raised for the first time a legal ground that no incriminating material relating to this transaction was found at the time of search and therefore no addition under section 153A was called for.

Legal Issues Presented

Whether an assessing officer may make additions under section 153A for an assessment year in respect of which the assessment was already completed on the date of search, when no incriminating material relating to the impugned item (here, the sale of property) was found during the search?
Whether the Tribunal may admit and decide, for the first time, a pure question of law (that no incriminating material was found to justify additions under section 153A) though that ground was not raised before the AO or CIT(A)?

Arguments of the Parties

Appellant's (Assessee's) Arguments

The addition could not have been made under section 153A for the assessment year in question because no incriminating material relating to the sale of the property was found during the search, and the assessment for AY 2003-04 was not pending on the date of search.
The additional legal ground was a pure question of law and, in light of authoritative precedent, the Tribunal had jurisdiction to admit and decide it even though it was not raised before the lower authorities.
Relied upon decisions of the Tribunal (including a Special Bench in All Cargo Global Logistics Ltd. and Asstt. CIT v. Pratibha Industries Ltd.) that held no addition can be made in respect of concluded assessments on the date of search unless incriminating material was discovered in the search.

Respondent's (Revenue's) Arguments

Opposed admission of the additional ground as belated and not raised before the AO or CIT(A).
Contended that section 153A does not require additions to be correlated to incriminating material found during the search and relied on several decisions of the Delhi High Court (including SSP Aviation Ltd., Chetan Das Lachman Das, and Anil Kumar Bhatia) to support the proposition that the AO may reassess completed assessments under section 153A.
Argued that Tribunal decisions relied upon by the assessee should give way to contrary views of the jurisdictional High Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
National Thermal Power Co. Ltd. v. Commissioner Of Income Tax [1998] 229 ITR 383	Tribunal's jurisdiction to examine a question of law for the first time where it arises from facts found by lower authorities and affects tax liability.	The Tribunal relied on this Supreme Court decision to admit the assessee's additional ground (a pure legal question) even though it was not raised before the AO or CIT(A).
All Cargo Global Logistics Ltd. v. Dy. CIT [2012] 137 ITD 287 (Special Bench, Mum)	Special Bench holding that no addition can be made in respect of concluded assessments on the date of search unless incriminating material is found during the search.	The Tribunal followed and treated this Special Bench decision as binding on division benches; adopted its principle that additions for non-pending (completed) assessment years require incriminating material.
Asstt. CIT v. Pratibha Industries Ltd. [2013] 141 ITD 151 (Mum)	Supportive Tribunal authority aligned with All Cargo Special Bench view on limitation of additions in completed assessments.	Cited by the assessee to reinforce the proposition that completed assessments cannot be disturbed under section 153A unless search-derived incriminating material exists; treated as persuasive support.
SSP Aviation Ltd. v. Deputy Commissioner Of Income Tax [2012] 346 ITR 177 (Delhi)	Interpretation of satisfaction required under section 153C where seized material belongs to a person other than the searched person; no requirement that seized books/documents must conclusively reflect undisclosed income.	The Tribunal held reliance on this High Court decision was misplaced because SSP Aviation concerned section 153C and satisfaction in relation to a person other than the searched person, not the present issue under section 153A for the person searched.
Commissioner Of Income Tax-VII v. Chetan Das Lachman Das [2012] 211 Taxman 61 (Delhi)	Para 11 observed that an assessment under Chapter XIV-B (search provisions) has to be made on the basis of seized material.	The Tribunal found para 11 supportive of the principle that completed assessments should not be reopened under section 153A to include items not based on seized/incriminating material; used this to justify limiting additions for non-pending years to search-based material.
CIT v. Anil Kumar Bhatia [2012] 211 Taxman 453 (Delhi)	Held that AO may reopen completed assessments under section 153A and reassess total income where undisclosed income is unearthed during search.	The Tribunal read this decision as permitting reassessment of completed years only where incriminating material is unearthed; noted the court's observations as obiter dicta that support limiting additions to search-derived incriminating material for completed assessments.
State of Kerala v. Mathai Verghese [1986] 4 SCC 746	Principle cited: tax statutes admit of no equity; courts cannot reframe legislation (as relied upon by Revenue).	The Tribunal acknowledged the principle but distinguished the present exercise as interpretation of section 153A rather than legislation; did not accept the Revenue's submission that the Tribunal was legislating.
Commissioner Of Income Tax, Gujarat v. Keshavlal Lallubhai Patel, AIR 1965 SC 866	Similar principle that tax laws should be applied as enacted and courts must not rewrite statutes.	Cited by Revenue; Tribunal noted the principle but proceeded to interpret the statutory language of section 153A to conclude that completed assessments cannot be disturbed except on the basis of incriminating material.
Kabul Chawla v. Asstt. CIT [IT Appeal No. 779 (Delhi) of 2013, dated 23-5-2014]	Decision consistent with the Special Bench position limiting additions in completed assessments without incriminating material.	Noted as a followed authority by the Tribunal (one member was party to that decision); used as further support for the interpreted position of section 153A.
CIT v. Tollaram Hassomal [2008] 298 ITR 22 (MP)	Authority relied upon to support remand/restoration to the Assessing Officer for further factual determination.	The Tribunal relied on this High Court precedent to justify restoring the matter to the AO because the assessment order lacked clarity on whether the AY was pending on date of search and whether any incriminating material was found.
CIT v. Sahara India (2012) 347 ITR 331	High Court view similar to Tollaram Hassomal on procedural handling of such matters.	Used to fortify the Tribunal's decision to remit the matter to the AO for clarification and fresh decision in light of legal principle developed in the order.

Court's Reasoning and Analysis

The Tribunal proceeded in two distinct stages: (1) admissibility of the additional ground and (2) substantive interpretation of section 153A and application to the facts.

1. Admission of Additional Ground:

The Tribunal found the additional ground to be a pure question of law regarding the legal basis for making the addition under section 153A in the absence of incriminating material. Relying on the Supreme Court decision in National Thermal Power Co. Ltd. v. CIT, the Tribunal held it had jurisdiction to examine such a question of law for the first time if it arises from the facts found by lower authorities and bears on tax liability. Accordingly, the additional ground was admitted.

2. Statutory interpretation of section 153A and interplay with search material:

The Tribunal acknowledged arguments that Chapter XIV-B provisions (such as section 158BB) and certain High Court decisions support broad AO powers in search cases, but confined the analysis to the language of section 153A itself.
It examined section 153A(1), particularly clauses (a) and (b) and the provisos. The Tribunal emphasised that section 153A casts a duty on the AO to "assess or reassess the total income" of six preceding assessment years once returns are called for and filed following a search.
The Tribunal focused on the second proviso to section 153A(1), which provides that any assessment or reassessment pending on the date of search shall abate. The Tribunal reasoned that if both pending and completed assessments were intended to be treated identically, there would have been no need for that proviso. The presence of the proviso therefore showed legislative intent to differentiate between pending (which abate and require fresh determination) and completed assessments.
From this statutory reading, the Tribunal concluded that for assessment years that were not pending on the date of search (i.e., completed assessments), the scope of reassessment under section 153A is limited to items supported by incriminating material found during the search. In short: completed assessments may be reopened/reassessed under section 153A only insofar as the reassessment is based on material unearthed in the search that points to undisclosed income.
The Tribunal analysed relevant authorities: it distinguished SSP Aviation (which concerned section 153C and a different factual matrix) and relied on Chetan Das and Anil Kumar Bhatia to interpret the interplay between seized material and reassessment under section 153A. It considered All Cargo (Special Bench) as authoritative precedent for the proposition that no addition should be made in respect of completed assessment years unless incriminating material is found in the search; the Tribunal regarded the Special Bench decision as binding on division benches in the absence of contrary High Court or Supreme Court decisions on the same question.
Finally, the Tribunal noted that the impugned assessment order was silent on two crucial factual questions: (i) whether AY 2003-04 assessment was pending on the date of search; and (ii) whether any incriminating material was found relevant to the addition made. Because these factual points were not addressed below (and had not been contested earlier), the Tribunal considered it appropriate in the interests of justice to set aside the order and remit the matter to the AO for fresh consideration in light of its legal conclusions.

Holding and Implications

Holding:

DISPOSED OF — The Tribunal allowed the appeal for statistical purposes by setting aside the impugned order and restoring the matter to the Assessing Officer for fresh consideration on the specific factual questions identified by the Tribunal.

Immediate consequences for the parties:

The impugned order of the CIT(A) is set aside insofar as it sustains the addition; the matter is remanded to the AO to determine: (a) whether the assessment for AY 2003-04 was pending on the date of search and (b) whether any incriminating material was found during the search that bears on the addition of Rs. 9,90,050 made under section 68.
If the AO finds that the AY in question was not pending on the date of search and that no incriminating material relating to the transaction was found in the search, then, following the Tribunal's legal conclusion, no addition for that item should be made under section 153A. Conversely, if the AO finds relevant incriminating material, reassessment for that item would be permissible under section 153A.

Broader implications and precedent status:

The Tribunal articulated a principle in line with the Special Bench of the Tribunal (All Cargo) that completed assessments may not be disturbed under section 153A unless incriminating material in the search justifies additions for those years. The Tribunal treated the Special Bench decision as binding on division benches in the absence of contrary authority from a High Court or the Supreme Court on the same question.
The Tribunal emphasised that it was interpreting section 153A rather than legislating; it rejected the Revenue's argument premised on general principles that courts should not "rewrite" tax laws, asserting that the interpretation followed arises from the statutory text and applicable precedents.
The order did not purport to overrule any High Court or Supreme Court decision and expressly stated that Special Bench decisions bind division benches unless there is a contrary decision of a High Court or the Supreme Court on the same question.

Result: The appeal is allowed for statistical purposes; the Tribunal remitted the matter to the Assessing Officer to decide afresh whether the assessment for AY 2003-04 was pending on the date of search and whether any incriminating material was found that would justify the impugned addition under section 153A.

Show all summary ...

ORDER

R.S. Syal, Accountant Member - This appeal by the assessee arises out of the order passed by the CIT(A) on 30.03.2013 in relation to the assessment year 2003-04.

2. Briefly stated, the facts of the case are that a search and seizure operation u/s 132 of the Income-tax Act, 1961 (hereinafter also called 'the Act') was carried out in this case along with other cases of Rajdarbar Group on 31.07.2008. Pursuant to notice issued for filing the returns u/s 153A, the assessee filed his returns inter alia for the year under consideration declaring long term capital loss of Rs. 5,87,272/- on sale of flat at DLF, Gurgaon. The assessee was called upon to furnish details of purchase cost and sale consideration of the property. The assessee claimed that this property was inherited by him from his father and his father originally purchased it for a sum of Rs. 14,32,674/- which was subsequently sold by the assessee in this year for a sum of Rs. 9,90,050/- resulting into capital loss as shown in the return. In the absence of any Conveyance deed, etc. filed, the AO noticed that the plot was sold prior to 15.06.2002. As the assessee applied cost indexation by showing that the plot was acquired in financial year 2000-01, the AO held that the said plot was held for less than 36 months and there was no question of computing any long-term capital gain or loss. Since the assessee did not file Conveyance deed, etc., the AO held that the whole matter was a story made up by the assessee to introduce his own unaccounted funds as sale of the property. This led to an addition of Rs. 9,90,050/- made u/s 68 of the Act. The ld. CIT(A) upheld the assessment order. The assessee is aggrieved against the sustenance of such addition.

3. The ld. Counsel for the assessee raised an additional ground to the effect that since no incriminating evidence was found at the time of search relating to this transaction, the resultant addition so made was not called for u/s 153A of the Act. The ld. AR was fair enough to concede that this issue was not taken up before the authorities below and that is why it was raised before the Tribunal as additional ground for the first time. It was prayed that this additional ground be admitted and disposed of on merits. The ld. DR strongly opposed to the raising of this ground at this belated stage before the Tribunal. He submitted that it was too late in the day for the assessee to come out with such a ground before the Tribunal which was neither raised before the ld. CIT(A) nor the AO.

4. We are not convinced with the arguments put forth by the ld. DR that the additional ground so raised before us cannot be admitted. It is clear from the ground itself that the assessee has taken up a question of law in support of not making this addition because no incriminating material was found during the course of search on this score and further, no assessment was pending. The Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. Commissioner Of Income Tax [1998] 229 ITR 383 , has held that the Tribunal has jurisdiction to examine a question of law for the first time which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee, notwithstanding the fact that the same was not raised before the lower authorities. In view of the above verdict given by the Hon'ble Supreme Court, we are inclined to admit the additional ground raised on behalf of the assessee, which is a pure legal ground.

5. On the merits of this additional ground, the ld. AR contended that no assessment for the AY 2003-04 was pending on the date of search, which could abate and empower the AO to compute total income even without any incriminating material found during the course of search. It was submitted that in the absence of any such incriminating material relating to the transaction of sale of property resulting into capital loss, there was no reason to make any addition. Relying on certain decisions including the Special Bench order in the case of All Cargo Global Logistics Ltd. v. Dy. CIT [2012] 137 ITD 287/23 taxmann.com 103 (Mum) and Asstt. CIT v. Pratibha Industries Ltd. [2013] 141 ITD 151/[2012] 28 taxmann.com 246 (Mum) , the ld. AR contended that the Special Bench of the Tribunal has held in unequivocal terms that no addition can be made in respect of concluded assessments on the date of search unless some incriminating material was found during the course of search. The ld. DR opposed this contention by relying on certain decisions including Ssp Aviation Ltd…. v. Deputy Commissioner Of Income Tax [2012] 346 ITR 177/207 Taxman 260/20 taxmann.com 214 (Delhi) ; Commissioner Of Income Tax-Vii v. Chetan Das Lachman Das [2012] 211 Taxman 61/25 taxmann.com 227 (Delhi) and CIT v. Anil Kumar Bhatia [2012] 211 Taxman 453/24 taxmann.com 98 (Delhi) . In the light of the above decisions rendered by the Hon'ble jurisdictional High Court, the ld. DR submitted that the Tribunal orders relied on by the ld. AR were required to be discarded and the view taken by the Hon'ble jurisdictional High Court followed.

6. We have absolutely no doubt in our mind that the superior wisdom of Hon'ble High Court overrides the inferior Tribunal opinion. It goes without saying that when a particular issue is decided by the Hon'ble High Court, contrary view taken by the Tribunal should bow down to give way to the opinion expressed by the Hon'ble High Court. The only caveat in this regard is that the question for consideration by both the judicial forums must be same. If the Hon'ble High Court has decided another aspect of the matter which is different from that decided by the Special Bench of the Tribunal, then, obviously, there can be no occasion for the Division benches of the tribunal in throwing to the winds the decision of the Special Bench of the Tribunal. That is precisely an aspect of the judicial discipline in so far as the tribunal benches are concerned.

7. Let us examine the judgments of the Hon'ble jurisdictional High Court relied on by the ld. DR. The first is that in the case of SSP Aviation Ltd. (supra). The ld. DR accentuated on para 15 of this judgment to canvass the view that addition can be made u/s 153A de horse any incriminating material found in the course of search. This para reads that the satisfaction required to be reached by the AO having jurisdiction over searched person is that the valuable articles or books, etc., seized during the search belong to a person other than the searched person. The later line on which the ld. DR forcefully emphasized is that: "there is no requirement in Section 153A (1) that the AO should also be satisfied that such valuable articles or books of account or documents belonging to the other person must be shown to conclusively reflect or disclose any undisclosed income." It is relevant to note the factual matrix of that case, in which a search was carried out in the P group of companies. In the course of search, certain documents were found showing that the assessee acquired certain development rights from P group of companies. A satisfaction was recorded by the AO in the case of the assessee u/s 153C. Thereafter, the proceedings were initiated against the assessee u/s 153A and the assessee was directed to file returns for the six assessment years. Assessments were completed u/s 143(3) read with section 153C. As the appeals were pending before the CIT(A), the assessee filed Writ petition contending that the AO had illegally assumed jurisdiction u/s 153C read with section 153A and that there was no undisclosed income to be assessed in the assessee's hands. Dismissing the petition, the Hon'ble High Court held that the satisfaction that is required to be reached by the AO having jurisdiction of the assessed person is that the valuable articles or books of account, etc., seized during the search belong to a person other than the assessed person and there was no requirement in section 153C(1) that the AO should also be satisfied that such valuable articles or books of account, etc., belonging to the other person must conclusively reflect or disclose any undisclosed income. Thus, it is apparent that the issue raised in the case of SSP Aviation Ltd. (supra)was altogether different from the one which is under our focus in the extant appeal. Presently, we are not required to determine as to whether any satisfaction was properly recorded in the case of person other than the person searched. On the contrary, we are dealing with assessment u/s 153A, being the assessment in the case of person searched. In that view of the matter, we find that the reliance of the ld. DR on this judgment is misplaced.

8. Now we turn to the other judgment relied by the ld. DR in the case of Chetan Das Lachman Das (supra). Referring to para 11 of this judgment, the ld. DR contended that the condition precedent for computing undisclosed income on the basis of incriminating material found during the course of search was in the context of Chapter XIV-B of the Act which envelopes a special procedure for assessment of search cases. The ld. DR contended that section 153A which provides for an assessment in the case of search, does nowhere stipulate that a search assessment has to be made on the basis of evidence found as a result of search, etc. He emphatically relied on several judgments including State of Kerala v. Mathai Verghese [1986] 4 SCC 746 and Commissioner Of Income Tax, Gujarat v. Keshavlal Lallubhai Patel . AIR 1965 SC 866 to put forth that there is no room for any intendment and there is no equity about tax. It was emphasized that the courts cannot reframe the legislation. He summed up his contention that since the legislature in its wisdom has considered it inappropriate to base addition only on the incriminating material found during the course of search, the same cannot be read by the tribunal in the provision.

9. We are fully convinced with the argument advanced by the ld. DR in so far as the non-applicability of section 158BB to section 153A of the Act is concerned. Obviously, Chapter XIV-B of the Act deals with computation of undisclosed income, whereas section 153A, etc., provides for the computation of 'total income.' However, we find that the language of section 153A has been structured in such a way so as not to permit the making of addition for the assessment year of which the assessment is not pending as on the date of search, without there being any incriminating material found during the course of search. At this stage, it would be appropriate to consider the relevant parts of section 153A of the Act, as under:—

'153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall—

(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;

(b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made :

Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years:

Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate : ………'

10. A careful perusal of the above provision brings to light that where a search is initiated u/s 132 of the Act etc., the A.O shall issue a notice requiring the person searched etc. to furnish his return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. Once such returns are filed, the Assessing Officer has to assess or reassess the total income of such assessment years. The decisive words used in the provisions are to 'assessee or reassess the total income'. Thus, it is manifest that a duty has been cast on the Assessing Officer to determine the 'total income' of the assessee for such six assessment years. Obviously 'total income' refers to the sum total of income in respect of which a person is assessable. It covers not only the income emanating from declared sources or any material placed before the Assessing Officer but from all sources including the undeclared ones, or unplaced material before the AO. The position which emerges on a reading of clauses (a) or (b) of sec. 153A(1) along with the first proviso is that the Assessing Officer is supposed to determine the 'total income' of the assessee in respect of the relevant six assessment years. Second proviso to sec. 153A(1) eclipses the afore discussed determination of 'total income'. Such proviso mandates that any pending assessment or reassessment relating to any assessment year falling within the period of six years referred to in sub-sec. (1) on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. The effect of the second proviso is that any pending assessment or reassessment on the date of search for any assessment year falling within the period of relevant six assessment years shall abate and a fresh determination of 'total income would be required. Now a question arises that what is the effect of second proviso on the assessments for any assessment years falling within the period of six assessment years, which are not pending on the date of search. We are unable to accept the contention urged on behalf of the Revenue for the reason that if both the pending and completed assessment were to be taken on same pedestal, then there was no need to enshrine second proviso to sec. 153A(1) providing that the pending assessments within the period of six assessment years shall abate. The effect of the second proviso in the entire setting of section is that the assessment for any assessment year which is not pending as on the date of search cannot include an item of income for which no incriminating material was found. Our view finds support from para no. 11 of the judgment in Chetan Das Lachman Das (supra), in which it has been held that : "Obviously an assessment has to be made under this section only on the basis of seized material."

11. This brings us to the next contention put forth on behalf of the Revenue that since there is no specific mention of correlating addition with the incriminating material found during the course of search, the tribunal should not venture to make such a provision in the Act. We find this contention as bereft of merits. The major reason for our this decision is that we are not trying to legislate by inserting such a provision in the language of section 153A. In fact, the special bench of the tribunal in holding so has interpreted the provision in its existing form in this way so as to prohibit the making of any addition in the assessment for those years the assessment of which was not pending on the date of search. This view has been followed in several cases including Kabul Chawla v. Asstt. CIT [IT Appeal No. 779 (Delhi) of 2013, dated 23-5-2014], to which one of us, namely , the AM is party, Thus, we do not find any merit in the contention raised on behalf of the Revenue that the tribunal should not legislate. As it is a case of interpretation of the provision and not that of legislating, we find no force in the contention advanced on behalf of the Revenue. The same is jettisoned.

12. The next judgment relied on by the ld. AR is Anil Kumar Bhatia (supra). In that case, the Hon'ble High Court held that even if assessment order had already been passed in respect of one or any of the six relevant assessment years either u/s 143(1)(a) or 143(3) prior to the initiation of search, still the AO is empowered to reopen those proceedings u/s 153A without any fetters and reassess total income taking note of undisclosed income, if any, unearthed during the search. It is clear that the Hon'ble High Court dealt with a situation in which some incriminating material was found in respect of a non-pending assessment. It was in that background that the Hon'ble High Court held that sec. 153A applies if incriminating material is found even if assessments are completed. The question as to whether any addition can be made in respect of completed assessments when no incriminating material was found, was apparently left open. However, we find that there are sufficient indirect hints given by the Hon'ble Delhi High Court in the case of Anil Kumar Bhatia (supra)about not making of any addition in respect of an assessment year for which the assessment is already completed unless some incriminating material is found during the course of search. This can be seen from the following observations of the Hon'ble High Court :—

"20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. ..."

13. The above extracted observations of the Hon'ble High Court, which are though obiter dicta, make the point clear that where an assessment order has already been passed for a year(s) within the relevant six assessment years, then also the A.O is duty bound to reopen those proceedings and reassess the total income but by 'taking note of the undisclosed income if any, unearthed during the search'. The expression 'unearthed during the search' is quite significant to denote that in respect of completed or non-pending assessments, the Assessing Officer is albeit duty bound to assess or reassess the total income but there is a cap on the scope of additions in such assessment, being the items of income 'unearthed during the search'. In other words, the determination of 'total income' in respect of the assessment years for which the assessments are already completed on the date of search, shall not be influenced by the items of income other than those based on the material unearthed during the course of search. There is not and cannot be any quarrel over the proposition that the Assessing Officer has no option but to determine the total income of the assessee in respect of the relevant six assessment years. However, the scope of such determination of total income is different in respect of the years for which the assessments are pending vis-vis the years for which assessments are non-pending. In respect to the assessment years for which the original assessments have already been completed on the date of search, the total income shall be determined by restricting additions only to those which flow from incriminating material found during the course of search. If no incriminating material is found in respect of such completed assessment, then the total income in the proceedings u/s 153A shall be computed by considering the originally determined income. If some incriminating material is found in respect of such assessment years for which the assessment is not pending, then the 'total income' would be determined by considering the originally determined income plus income emanating from the incriminating material found during the course of search. In the other scenario of the assessments pending on the date of search which would abate in terms of second proviso to sec. 153A(1), the total income shall be computed afresh uninfluenced by the fact whether or not there is any incriminating material. In fact, this is the position which follows when we read the judgment of the Hon'ble Delhi High Court in Anil Kumar Bhatia (supra)in juxtaposition to the special bench order in the case of All Cargo Global Logistics Ltd. (supra).

14. Since the Special Bench has decided this issue in this manner, it is not possible for us to deviate from the same. There has to be some consistency in the view taken by the Tribunal. Once a Special Bench has decided a particular issue in a particular manner, then, that becomes binding on all the division benches across the country unless there is a contrary judgment of the Hon'ble Supreme Court or that of some High Court. As the ld. DR failed to point out any specific and direct judgment rendered by the Hon'ble High Court on the issue which is obtaining in the present appeal, we are disinclined to deviate from the Special Bench order in the case of All Cargo Global Logistics Ltd. (supra). We, therefore, hold in principle that no addition can be made for any assessment year u/s 153A, the assessment for which is not pending on the date of search, unless any incriminating material is found in the course of search.

15. Having held so, we now need to examine the factual position of this case. At this stage, it is relevant to note that the assessment order is silent on both the counts as to whether (i) the assessment for AY 2003-04 was pending as on the date of search; and (ii) whether any incriminating material was found during the course of search having bearing on the addition so made. As this issue was not taken up before the AO/CIT(A), in our considered opinion, the ends of justice would meet adequately if the impugned order is set aside and the matter is restored to the file of the AO. We order accordingly and direct him to decide this issue afresh in the light of the above discussion. Our view in restoring the matter to the lower authorities is fortified by the judgment of the Hon'ble MP High Court in CIT v. Tollaram Hassomal [2008] 298 ITR 22/[2006] 153 Taxman 532 (MP) . Similar view was taken by the Hon'ble Allahabad High Court in the case of CIT v. Sahara India (2012) 347 ITR 331/[2013] 33 taxmann.com 550 .

16. In the result, the appeal is allowed for statistical purposes.

SUNIL