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2022 (10) TMI 720 - AT - Income TaxValidity of assessment u/s 153C - Whether incriminating material during the course of search and the assessment is not made based on any seized material ? - HELD THAT:- Revenue had submitted before us that the provision of sec 153A cannot be invoked in the present case as the warrant of authorization had not been issued against the assessee before us. In view of the above, we find the contention of the ld.AR that the right recourse was to exercise power u/s 153A is not sustainable. The decision of the Hon’ble Supreme Court in the case of Tapan Kumar Datta [2018 (4) TMI 1375 - SUPREME COURT] is applicable to the facts of the case. The proceeding u/s 153A cannot be invoked in the present case, now we have to examine whether the Assessing Officer was correct in invoking the provisions of sec 153C or not. As mentioned herein above, the recording of satisfaction by the Assessing Officer of the searched person or of the other persons (Assessee) is essential in view of the specific mandate provided u/s 153C - As decided the issue in the case of Super Mall (P) Ltd [2020 (3) TMI 361 - SUPREME COURT] has held that if the Assessing Officer of the searched person and of the other person is same, then recording of satisfaction in the file of one of the persons will not make any difference. The relevant paragraph of the above said judgement had already been reproduced elsewhere. Admittedly, the Tribunal had directed the Revenue to file the copy of the satisfaction note, if any, available in the case record of the assessee to show that the assessment proceedings u/s 153C were initiated after due recording of the satisfaction. On the last date of hearing i.e. on 4.10.2022 the Tribunal had again reiterated its earlier direction. The revenue is not in a position to trace the satisfaction note as of now as the record is not traceable and may be available with the office(s) of the Revenue. We hold additional ground raised by the assessee is admitted. The matter is remanded back to the file of the learned CIT (A) with a direction to decide the additional ground after collecting the documents/record from the offices of the Assessing Officer/Investigation/Central Circle in accordance with law after affording opportunity of being heard to the assessee. Appeals allowed for statistical purposes.
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