TMI Blog2020 (11) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... opening is without any basis and does not satisfy the required conditions to be considered as per law. The reopening cannot be quashed on such technicalities as argued by Ld.AR that, assessee falls under the category of other person as per section 153A - reopening notice was issued as assessee failed to include the amount disclosed vide her letter dated 17/09/2010 in the return filed for year under consideration on 29/09/2011.Arguments advanced by Ld.Sr.DR deserves to be upheld. Pursuance to the declaration by assessee that the summon under section 131 was issued based upon the statements recorded therein the reopening has been initiated. We note that reopening notice is issued as assessee failed to include the disclosure made as per statement recorded in the return filed for year under consideration. It is apparently clear that the reopening notice has been issued subsequent to the filing of return for year under consideration by assessee - Decided against assessee. - ITA No. 723/Bang/2016 - - - Dated:- 6-11-2020 - Shri A. K. Garodia, Accountant Member And Smt. Beena Pillai, Judicial Member For the Assessee : Shri. KR. Pradeep CA along with Smt.Girija G.P.CA Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch under section 132 of the Act, in case of M/s. Bharat Mines and Minerals on 19/07/2010. The search also covered Sri.Lakshmipat Dudhoria, being husband of assessee. During the course of search, certain documents were found, which was not belonging to Sri.Lakshmipat Dudhoria. The document was marked as A1/DC at page 32 33 2.1. Assessee gave letter dated 17/09/2010 to DDIT (Inv.) declaring ₹ 1 Crore for assessment year 2010-11 to cover entries in the loose sheet marker A1/DC at pages 32 33 as well as miscellaneous issues such as investment, expenditure etc. This letter was signed by assessee under section 132(4) of the Act. ----This space if left vacant intentionally ---- 2.2. Subsequently, the Investigation Wing summoned assessee u/s131 of the Act and her statement was recorded on 24/09/2010. The relevant portion of statement recorded has been reproduced by Ld.AO in assessment order in para 4.4. 2.3. Based on the statement recorded, Ld.AO had reason to believe that income chargeable to tax has escaped assessment within the meaning of section 147 of the Act and accordingly, after recording satisfaction, notice under section 148 was issued on 28/08/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y addition made, assessee preferred appeal before Ld.CIT(A). 3.1. Before Ld.CIT(A), assessee also challenged proceedings under section 148 of the Act to be bad in law. It was alleged by assessee that, proceedings in assessee s case should have been in accordance with provisions of section 153C since addition is found during search. 3.2. Ld.CIT(A) after considering submissions and the decisions relied by Ld.AR observed as under: 8. As far as issue of notice u/s 148 vis a vis 153C is concerned, the facts are little different in this case. As discussed in earlier paragraphs of this order (para-5.4), there was a search in the case of appellants husband where some documents related to appellant were seized. Subsequent to the search, the appellant has given a letter to Deputy Director of Income Tax (Inv) Unit II(2), Bangalore, on 17.09.2010. In that letter she has promised to offer ₹ 1 crore as her undisclosed income for the Assessment Year 2010-11. This was reiterated in her sworn statement recorded before Deputy Director of Income Tax (Inv) Unit II(2), Bangalore, on 24.09.2010. Hence, when she has not admitted her income in A.Y.2010-11, a notice u/s 148 was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in nature or not, Ld.AO issued notice under section 148 to assessee. Placing reliance on provisions of section 153A/153C, Ld.AR submitted that, assessment based on seized material cannot be made by issuing notice under section 148 of the Act. He submitted that if any proceedings could be initiated shall be only under section 153C read with 153A of the Act, in the case of assessee. He placed reliance on following decisions in support of his contention: Kedarnath Jute Manufacturing Co Ltd vs CIT reported in 82 ITR 363 (SC) Tansukhari Bodulal vs ITU and Ors. Reported in 46 ITR 325 (FB- Assam) Manvy Bros vs CIT reported in Bom HC 93 CCH 40 Smt. Bhagya Nagaraj vs DCIT in ITA No.93-96/Bang/2017 for assessment year 2005-06 to 2008-09 by order dated 25/10/2017 ACIT vs Sh.Srinivas Rao Hoskote in ITA No.1154-1155/Bang/2015 for assessment years 2010-11 and 2011-12 by order dated 21 02/02/2018 Halcrow Group Ltd., vs ADIT in ITA Nos. 5163-5164/D/2010 and 5554/D/2010 for AY 2004-05 and 2005-06 dated 02/07/2018(Del Trib). Rajat Shubra Chatterji vs.ACIT reported in (2016) 47 CCH 0135 (Del Trib.) ITO vs Arun Kumar Kapoor reported in (2011) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148 for year under consideration alleging the validity of reopeaning. Instead she admitted that the documents relates to her and that she would offer ₹ 1Crore to cover up the entries in the loose sheetas well as miscellaneous issue such as expenditure etc. And the statements recorded by Ld.AO during the assessment proceedings are self explainatory regarding the unaccounted money that is discernible from the seized documents owned by assessee herself. Ld.Sr.DR submitted that, the statement recorded under section 132(4) of the Act, have great evidentiary while you and cannot be discarded in a summary manner. Ld.Sr.DR placed reliance on following decisions: Decision by Hon ble Supreme Court in Bannalal Jat Constructions (P.) Ltd vs. ACIT reported in (2019) 106 taxmann.com. AGR investment Ltd reported in 333 ITR 146 (DEL) Safetage International India (P) Ltd reported in 332 ITR 622 (del) Mobius India Ltd (Mad) in WP No. 3354 and 3355 of 2015 by order dated 04/08/2015 Senate vs DCIT reported in (2016) 68 Taxmann.com 223 (Bang) Rameshchandra and Co vs CIT reported in (1987) 35 taxman 153 (BOM) Kunhambu vs CIT reported in (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under section 132/132A of the act. There is nothing on record to show that the DIT(Inv,) requisitioned or seized, any books of account or documents/assets etc., as per section 132/132A of the Act. Further we note that apart from the declaration given by assessee there is nothing to establish that the documents belonged to or even related to assessee. Under such circumstances provisions of section 153A/153C would not be applicable. 6.3. As per the scheme of the Act the year in which search is conducted does not fall within the purview of the provisions either under section 153A or under section 153C. Act allows 6 years period to be computed from the previous year relevant to the year in which the search was conducted. In Present facts the year under consideration is relevant to financial year in which search took place. Further there has been no action on assessee under section 132 or requisition is made under section 132A as per section 153C(2). In the present facts none of these conditions stands satisfied. We therefore find argument advanced by Ld.AR challenging the reopening is without any basis and does not satisfy the required conditions to be considered as per law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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