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2020 (8) TMI 751 - AT - Income TaxValidity of assessment u/s 153A/143(3) - wrong reference to a section under which an order is made - Whether CIT(A) has grossly erred in law and on facts of the case in sustaining the assessment order under section 153A of the Act instead of section 153C made by ACIT when there was no search authorization under section 132 of the Act in the name of the assessee without verifying the record of the revenue? - HELD THAT:- A.O was duly vested with the jurisdiction to frame the assessment under Sec. 143(3) of the Act. We are in agreement with the view taken by the CIT(A), that as held in the case of Isha Beevi [1975 (9) TMI 2 - SUPREME COURT] a wrong reference to a section under which an order is made would not on such standalone basis vitiate the assessment order, but in order to see as to whether an order is valid or not has to be determined by verifying as to whether the A.O had any power at all to make such assessment. As observed by the Hon’ble Supreme Court, if the power is otherwise available with the A.O, the fact that source of such power had been incorrectly described would not vitiate the order passed by him. Now, in the case before us, we find that the A.O who was duly vested with the jurisdiction to frame the assesement under Sec. 143(3), had inadvertently made a mention of Sec. 153A along with Sec. 143(3) of the Act. In our considered view, the aforesaid mistake cannot be stretched to the extent for rendering the assessment framed by the A.O under Sec. 143(3), as invalid and void ab-initio on the said count. Accordingly, finding no substance in the aforesaid claim of the assessee, we decline to accept the same and uphold the view taken by the CIT(A) who had rightly dismissed the same. Addition of value of the 450 grams of gold jewellery under Sec. 69B - unexplained investment - HELD THAT:- Entire value of the 450 grams of gold jewellery which have been held by the A.O as an unexplained investment within the meaning of Sec. 69B of the Act, had been added to the income of the assessee. In our considered view, the very basis for invoking the provisions of Sec. 69B in the case of the assessee before us are found to be seriously amiss viz. (i) that, as the assessee was not maintaining any books of account, therefore, the issue of recording of the investment in the 450 grams of gold jewellery cannot be comprehended; and (ii) that, in the absence of recording of the investment in 450 grams of gold jewellery in the books of account, there could have been no occasion for making of an addition of the excess unrecorded value of such investment under Sec. 69B of the Act. On the basis of our aforesaid deliberations, we are of a strong conviction that in the totality of the facts of the case the A.O could not have made the addition as regards the impugned value of the 450 grams of gold jewellery under Sec. 69B of the Act. As such, we are in agreement with the contention advanced by the Ld. A.R that the impugned addition could not have been made by the A.O under Sec. 69B of the Act. In the backdrop of our aforesaid observations, we herein conclude that the impugned addition of ₹ 13,95,900/- made by the A.O as regards the 450 grams of gold jewellery under Sec. 69B of the Act cannot also be sustained for want of jurisdiction. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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