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M/s. Shiv Associates 7, Nadiad Versus DCIT, Central Circle-2, Baroda

2015 (11) TMI 1123 - ITAT AHMEDABAD

Validity of notice issued u/s. 153C - Held that:- Assessing Officer of assessee did not record any satisfaction prior to issue of notice u/s 153C. The so-called satisfaction recorded in the notice u/s 153C is totally vague. It has not specified which valuable articles/things/books of accounts/documents were found from Shri Rameshbhai B, Shah which belongs to the assessee. In the assessment order the Assessing Officer has mentioned that in the laptop of Shri Rameshbhai B. Shah the data pertaining .....

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- IT(SS)A No: 27/AHD/2012 - Dated:- 30-10-2015 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER For The Appellant : Shri P.M Mehta with G.M. Thakor, AR For The Respondent : Shri R.I. Patel, CIT/ D.R. PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. This appeal filed by the Assessee is against the order of CIT(A)-IV, Ahmedabad dated 25.11.2011 for A.Y. 2008-09. 2. The relevant facts as culled out from the material on record are as under. 3. Assessee is a partnership firm .....

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nically filed its return of income declaring total income of ₹ 6,93,780/- after claiming brought forward losses of earlier years. Thereafter assessment was framed u/s. 153C r.w.s. 153A vide order dated 30.12.2010 and the total income was determined at ₹ 26,73,280/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 25.11.2011 dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal .....

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The appellant's elaborate submissions before him, in the right perspective; (b) that, as he had himself recalled in the impugned Appellate Order, the search warrant u/s. 132 had been issued in the joint names of Shri Rameshbhai B. Shah and his son Shri Amit R. Shah and that, therefore, the search in pursuance of Section 132 could not permit valid assessments in their individual cases, far less, in cases of all those entities in which they were involved in their capacities other than their j .....

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ant was engaged in the business of developing and building of a project at Nadiad in Gujarat; (b) The appellant had offered the entire amount undisclosed income pertaining thereto viz. ₹ 15,50,000, in A.Y. 2008-09; (c) that especially considering that the appellant's project was at the Nadiad town which could not be compared with such projects in the bigger cities in Gujarat such as Ahmedabad, Baroda, Rajkot or Surat, the additional income offered, as thus returned by the appellant was .....

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e rate of 25% in that case was not adopted as net profit rate to be applied to turnover outside the books but for making a disallowance out of what had been proved to be bogus purchases of oil cakes from 33 parties; 3.2 In law and in the facts and circumstances of the appellant's case, the learned CIT(A) ought not to have upheld the Assessing Officer's action of estimating a larger amount of undisclosed income of ₹ 35,29,500 than ₹ 15,50,000 disclosed by the appellant especia .....

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₹ 2,30,91,000/- for the assessment years 2003-04 to 2009-10. The petition of the applicant has been admitted by the Settlement Commission. One of major portion of disclosure relates to amounts received from partnership firms out of profit from operations. Thus, ShriRameshbhai B. Shah has offered income on account of share in unaccounted receipts of the firms.-" 3.3 The appellant therefore, prays that this Hon'ble Tribunal may be pleased to order.that the learned CIT(A) ought not .....

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ed, inter alia, that the appellant had challenged the very levy of interest and that even as the levy under those provisions may be mandatory, it was not universal and in the peculiar facts and circumstances of the appellant's case, the levy deserved to be cancelled. 5 In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in dismissing Ground No. 8 of the appellant's appeal challenging initiation of penalty proceedings u/s. 271(1)(c) .....

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sed various grounds but the only issue is with respect to challenging the validity of assessment order passed u/s. 153C of the Act and therefore only ground no. 1 needs to be adjudicated. He further submitted that the issue in the present appeal is squarely covered by the decision of Hon ble ITAT in the case of its group where the issue was identical and on account of the same search and therefore the issue needs to be decided in its favour. 7 Before us, ld. A.R. submitted that the basic conditi .....

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submitted that the notice u/s. 153A r.w.s. 153C dated 29.08.2008 is identically worded as that of group cases which has already been decided by the Tribunal in Assessee s favour and in the group cases the Co-ordinate Bench of Tribunal has held that since the notice issued u/s. 153C was invalid, the assessment orders framed u/s. 153C r.w.s. 153A were also quashed. He placed on record the copy of the Tribunal decision in the group cases passed in IT(SS)A No. 68/A/2012 & Ors. order dated 11.09. .....

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s of the case are identical to that of the group cases, the assessment order passed u/s. 153C dated 30.12.2010 be quashed. Ld. D.R. on the other hand supported the order of A.O and ld. CIT(A). 8 We have heard the rival submissions and perused the material on record. Before us, ld. A.R. interalia submitted that the notice issued u/s. 153C was invalid and therefore the assessment order framed u/s. 153C r.w.s. 153A also needs to be quashed in view of the decision of the Co-ordinate Bench in group c .....

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was considered by the ITAT along with IT(SS)A.No.68/Ahd/2012 and others. The Tribunal has reproduced the satisfaction note. The finding of the Tribunal on this issue reads as under: "NOTICE UNDER SECTION 153 r.w.s. 153A OF THE INCOME TAX ACT, 1961 Date : 29.08.2008 PAN : AACFP 3995 R AY 2003-04 To M/s. Parshwa Corporation Jaldhara Apartment Opp. Maha Gujarat Hospital, College Road, Nadiad A search u/s 132 of the Income-tax Act was conducted/requisition made u/s 132A of the Income-tax Act in .....

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f Section 153A r.w.s. 153C of the Act. You are, therefore, required to furnish hour return of income under Section 153C of the Income-tax Act, 1961 for A.Y. 2003-04 being one out of the above six assessment years in respect of which you are assessable under the Income-tax Act, 1961. The return should be filed in the appropriate form as prescribed in Rule 12 of the Income-tax Rules, 1962. It should be duly verified and signed in accordance with the provisions of Section 140 of the Said Act and de .....

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s/things/books of accounts/documents were found from Shri Rameshbhai B, Shah which belongs to the assessee. In the assessment order the Assessing Officer has mentioned that in the laptop of Shri Rameshbhai B. Shah the data pertaining to the assessee were found and on that basis notices u/s 153C have been issued. However, in the notice u/s 153C, wherein the Assessing Officer is claimed to have been recorded the satisfaction for issue of the notice, there is no mention about such laptop or the all .....

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eturn of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conf .....

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er, before issuing of notice u/s 153C, the satisfaction of the Assessing Officer of the person searched is essential for assuming the jurisdiction u/s 153C by the Assessing Officer of such other person. Therefore, in the absence of satisfaction by the Assessing Officer of the person searched, the Assessing Officer of the present assesses does not get any jurisdiction to issue such notice. Accordingly, notice u/s 153C issued by the Assessing Officer of the person searched lacks jurisdiction which .....

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