TMI Blog2011 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of cash. No detail has been filed about the land sought to be purchased by him. In these circumstances, the Tribunal was right in holding that the claim made by Shri Sudhir Chadha is an afterthought to accommodate the assessee. Had the money really belonged to him, he would have made the claim soon after its seizure. - Decided in favor of assessee. - ITA No.271/2011 - - - Dated:- 27-7-2011 - A.K. Sikri and M.L. Mehtam JJ Shashi M. Kapila, Siddhartha Kapila and Pravesh Sharma, Advs. for the APPELLANT Kiran Babu, Sr. Standing Counsel, Adv. for the Income Tax Department JUDGMENT M.L. Mehta, J 1. This is an appeal under Section 260A of the Income Tax Act (hereinafter referred to as 'the Act') directed against the order dated 17.09.2010 of the Income Tax Appellate Tribunal (hereinafter, 'the Tribunal' for short) pertaining to assessment year 2004-05. The following issues arise for our consideration: "(a) Whether the issue of notice under Section 143(2) of the Income Tax Act is mandatory for finalization of assessment under Section 153A? (b) Whether the findings of the authorities below upholding addition of Rs.10 lac of cash seized from Mr. D.S. Rawat in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly denied that it belonged to him and that it belonged to his nephew. There is no supporting evidence for this explanation. Since the matter is still pending adjudication before the Railway Magistrate, Bhopal, it is not possible to hold that Shri Sudhir Chadha is the real owner. It is no possible to hold that the cash belonged to Sri Sudhir Chadha and not to the Appellant. The addition of Rs.10,000/- made by the AO u/s. 69A of the I.T. Act is confirmed". 5. Aggrieved from the order of CIT(A), the assessee preferred an appeal before the Tribunal. The Tribunal did not find any fault in the findings recorded by CIT(A) regarding framing of assessment under Section 153A on the alleged ground of non-issuance of notice under Section 143(2) of the Act. With regard to the addition of Rs.10 lakh also, the tribunal rejected the plea of assessee and observed as under: "...It becomes clear from this conduct of the Thana Prabhari that Shri Rawat held out before him that the money belongs to the assessee. Thereafter, the money was taken over by the Income Tax Department under section 132A. The assessee or Shri Sudhir Chadha did not do anything further in the matter till the passing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired under section 143 (2). Therefore, once the assessee has been put to notice and given opportunity to attend the office, the requirement of section 143 (2) is complete whether notice is issued in proforma "ITNS-33" or in any other format. In the present case, the AO had communicated his intention to scrutinize the return by way of two letters and afforded opportunity to the assessee to produce necessary accounts, documents or evidence. Therefore, the requirement, if any, of section 143 (2) has been satisfied. 8. Admittedly, the assessee was issued a notice under section 153A of the Act, in response to which he had filed a return of income. Thereafter, two detailed questionnaires were issued to the assessee before the completion of assessment. Section 153 A of the Act provides procedure for assessment in case where a search is initiated or documents are requisitioned. The relevant portion of Section 153A is reproduced here under: "Section 153A - Assessment in case of search or requisition [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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee was that of the Tribunal, wherein, a view was taken that if a return filed under Section 148 of the Act is sought to be scrutinized, the compliance of provision contained in proviso under Section 143(2) of the Act is mandatory. The issue of requirement of notice under section 143(2) for an assessment under section 147 came up for consideration before this court recently in CIT v. Madhya Bharat Energy Corpn., ITA No. 950/08 decided on 11-07-2011. In that case also, this court has held that in the absence of any specific provision under Section 147 of the Act, the issuance of notice under Section 143 (2) cannot be held to be a mandatory requirement. 11. It is also to be noted that Section 153A provides for the procedure for assessment in case of search or requisition. Sub section (1) starts with non-obstante clause stating that it was 'notwithstanding? anything contained in sections 147, 148 and 149, etc. Clause(a) thereof provides for issuance of notice to the person searched under Section 132 or where documents etc are requisitioned under Section 132(A), to furnish a return of income. This clause nowhere prescribes for issuance of notice under Section 143(2). Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the assessee further assails the order of the Tribunal and contends that it has erroneously upheld the addition of Rs.10,00,000/- found by the Railway police in the possession of Dilbar Singh Rawat despite evidences being filed to demonstrate that the assessee's nephew has claimed ownership of the monies and filed an application of claim before Railway Magistrate, Bhopal. He contends that the matter is sub-judice before the Railway Magistrate and in the absence of any findings by the Magistrate, the findings given by the Tribunal are un-warranted and unjustified. 16. In this regard, learned counsel for the revenue argues that no doubt an application dated 23.01.2008 has been filed by Shri Sudhir Chadha whereby he has claimed ownership of the seized money. However, it is noted that the amount was seized on 20.04.2003 as seen from the telegram sent by Thana Prabhari, GRP, Bhopal, whereas the claim of ownership was made on 23.01.2008, much after the date of seizure. No steps were taken by the assessee or Shri Sudhir Chadha for almost 5 years. It was only when the assessment order came to be passed on 31.12.2007, that Shri Sudhir Chadha submitted a claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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