IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDITION INCOME TAX APPEAL NO.1691 OF 2014 WITH INCOME TAX APPEAL NO.1737 OF 2014 Commissioner of Income Tax 8 ... Appellant V/s. Shri.Atul Barot ... Respondent ..... Mr.Arvind Pinto, Advocate for Appellant. Mr.Nitesh Joshi with Mr.Atul K. Jasani, Advocate for Respondent. .... CORAM : S.V.GANGAPURWALA & A.M.BADAR JJ. DATED : 12th July 2017. P.C. 1 present Appeals pertain to Assessment year 2006 07 and 2007 08. present Appeals are filed on following grounds : a) Whether on facts and circumstances of case, ITAT is justifeid in law and on facts in drawing upon imagination to hold that return for A.Y. 2006 07 had Gaikwad RD 1/4 ::: Uploaded on - 13/07/2017 ::: Downloaded on - 14/07/2017 09:44:42 ::: (40)ITXANo.1691 1737 2014 been processed u/s.143(1) and limitation period of twelve months for initiation of scrutiny had expired i.e. from end of months in which return for A.Y. 2006 07 had been filed ? b) Whether on facts and circumstance of case, Hon'ble ITAT is justified in ignoring material evidence on record to effect that for A.Y. 2006 07 scrutiny assessment u/s.143(3) was pending on date of search i.e. 19.07.2007, having been initiated earlier by 143(2) notice dated 28.06.2007 (Vide Exhibit 'F') and said proceedings had to abate as per statutory requirement of Section 153A to facilitate initiation of proceedings u/s.153A (Vide Exhibit.'G') that 143(1) processing had been done only on 21.07.2007 (Exhibit H) well after initiation of scrutiny u/s.143(3) ? 2 We have heard learned counsel for respective parties. Upon going through Judgment and arguments canvased by learned counsel for respective parties, it appears that Tribunal has failed to consider that during search and proceeding under Section 153A of Act, Assessment Proceedings under Section 143 of Act had not concluded. In view of that Judgment relied in case of Commissioner of Income Tax v. Continental Warehousing Gaikwad RD 2/4 ::: Uploaded on - 13/07/2017 ::: Downloaded on - 14/07/2017 09:44:42 ::: (40)ITXANo.1691 1737 2014 Corporation (Nhava Sheva) Ltd. reported in [2015] 374 ITR 645 (Bom) would not apply. Assessing Officer would within his right to consider other evidence also. 3 It is not disputed that search had taken place on 19th July 2007 and on said date Assessment Proceedings of both years were not concluded. It would be necessary for Tribunal to consider entire evidence and then to arrive at appropriate conclusion. 4 In light of above, following order : (i) impugned Judgment of Tribunal for Assessment Year 2006 07 and 2007 08 is quashed and set aside. (ii) parties are relegated before Tribunal. They shall appear before Tribunal on 14th August 2017. (iii) Tribunal shall after hearing parties decide matter for Assessment Year of 2006 07 and 2007 08 before it afresh on its own merits considering that on date of search, Assessment Proceedings were not concluded. Gaikwad RD 3/4 ::: Uploaded on - 13/07/2017 ::: Downloaded on - 14/07/2017 09:44:42 ::: (40)ITXANo.1691 1737 2014 (iv) It is made clear that we have not considered factual matrix/evidence on merits in present case and that is left open for Tribunal to consider. (v) Appeals are accordingly partly allowed. (vi) No costs. ( A.M.BADAR J.) ( S.V.GANGAPURWALA J.) Gaikwad RD 4/4 ::: Uploaded on - 13/07/2017 ::: Downloaded on - 14/07/2017 09:44:42 ::: TheCommissionerofIncome-tax-8 v. AtulBarot