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Smt. Sunita Gupta, Delhi Versus DCIT, Central Circle 15, Jhandewalan, New Delhi

2016 (8) TMI 362 - ITAT DELHI

Nature of assessment - seizure operation u/s 132 - whether, the order ostensibly passed u/s 143(3) of the Act, should be considered as that which is actually passed u/s 153C/u/s 153A r.w.s. 143(3)? - Held that:- The impugned order passed by the A.O. was only u/s 153A r.w.s. 143(3) of the Act or 143C of the Act. As the search in the case of the assessee had taken place on 10th April, 2006, the A.Y. of search is 2007-08 and not the impugned A.Y. 2006-07. - During the impugned A.Y. 2006-07, the .....

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essment have to be deleted for the reason that, the same are not based on any incriminating material or assets seized during the search. As in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ) wherein it is laid down that no addition can be made in the assessment being framed u/s 153A, when there is no incriminating material or assets seized during the course of search. - The appeals of the assessee have to be allowed for the reason that the assessment cannot be taken as an asse .....

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of assessee - ITA No. 3828/Del/2010 - Dated:- 28-6-2016 - SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER For The Appellant : Shri A.K.Jain, C.A. For The Respondent : Sh. Ravi Jain, CIT, D.R. ORDER PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER This is an appeal filed by the Assessee directed against the order dated 26.5.2010 of Ld.CIT(A)-II, Delhi pertaining to the Assessment Year (hereinafter referred to as the A.Y.) 2006-07. 2. Facts in brief:- A search and seizure op .....

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uing ₹ 1,49,000/- was found from the locker No.517 with Canara Bank. Thus in total 631.89 gms jewellery was found valuing ₹ 12,31,074/-. The A.O. noted that the jewellery appearing at S.No.7 and 8 in the valuation report was worth ₹ 4,25,080/-. No evidence/source of acquisition of these two items was explained during the course of search. Accordingly these two items of jewellery valuing ₹ 4,25,080/- were seized. Not only that, in the statement dated 3/5/2006 Shri Abhay Gu .....

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vidence was filed as to which assessee gifted and on what occasion etc. Considering this fact and also the fact that there was a disclosure of ₹ 4,25,000/- towards jewellery, the A.O. added an amount of ₹ 4,25,080/- to the total income of the appellant for the year. Against this action of A.O. these three grounds have been raised. 3. Aggrieved the assessee carried the matter in appeal. The First Appellate Authority (F.A.A.) upheld the order of the Assessing Officer (hereinafter refer .....

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The Ld.CIT(A) on the ground that it was admitted that the jewellery was purchased from undisclosed sources, the addition was upheld. 4. Further aggrieved, the assessee is in appeal before us. 5. We have heard Shri A.K.Jain, the Ld.Counsel for the assessee and Shri Ravi Jain, the Ld.Sr.D.R. on behalf of the Revenue. 6. The Ld.Counsel for the assessee submitted that: (a) Search was carried out at the residence of the family of the assessee on 22nd March, 2006 and that there was no warrant in the .....

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s to be passed u/s 153A of the Act. He relied on the order of the Ld.CIT(A) for the A.Y. 2001-02 wherein it was held that, as no search on the assessee was conducted on 22.3.2006 initiation of assessment proceedings u/s 153A of the Act for the A.Y. 2000-2001 is bad in law, as it was beyond the period of 6 years. (c). He further argued that as there was a limited warrant issued against the assessee for operating of the bank locker on 10.4.2006, the assessment should have been framed u/s 153A of t .....

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locker. (e). He further submitted that the addition in question was based only on the statement of Shri Abhay Gupta and the benefit of telescoping should be given as surrender was made to the tune of ₹ 3,50,000/-. 7. The Ld.D.R. on the other hand opposed the contentions of the assessee and submitted that there is no concept of limited warrant in the Income Tax Act. He submitted that search had taken place on 22.3.2006 and certain gold and jewellery was seized. He submitted that the assesse .....

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en place on 22.3.2006 in the premises of Shri Ajay Gupta, Shri Anup Gupta, Shri Abhay Gupta, M/s Balaji Perfumes and M/s Assam Supari Traders. There is no warrant on the said date against the assessee. An order u/s 132(3) of the Act was passed on locker no.517 at Canara Bank in the name of Mrs.Sunita Gupta, Deepika Gupta. Consequently warrant was issued in the name of Mrs. Sunita Gupta and Locker no.517 with Canara Bank, Tagore Park, Model Town I, Delhi was searched and a Panchanama was drawn on .....

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ange II, New Delhi communicated vide order no.389 dt. 31.12.2007 as required u/s 153D of the Act. 12. Under such circumstances, we refer to the decision of Hon ble Delhi High Court in ITA 568/2015 in the case of Pr.CIT-2 vs. Natural Products Biotech Ltd. order dated 29th September,2015 wherein it was held as under. The question sought to be urged is whether the ITAT was correct in upholding the order of the CIT(A) that since the requisites of S.153 C of the Act were not satisfied and the assessm .....

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on 153C of the Act. 4. Learned counsel for the Respondent/Assessee on the other hand drew the attention of this Court to para 9 of the Assessment Order which states that it has been passed with the prior approval of the Addl. CIT Central Range-Ill, New Delhi vide his letter dated 28th December, 2010. He submits that this was the prior approval that was required, in terms of Section 153 D of the Act, to initiate proceedings under Section 153 C of the Act. 5. The learned Counsel for the Revenue st .....

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rises for determination by this Court. The appeal is dismissed. 13. Applying the propositions laid down in the above cases, to the facts of the case on hand, we have to hold that the impugned order passed by the A.O. was only u/s 153A r.w.s. 143(3) of the Act or 143C of the Act. As the search in the case of the assessee had taken place on 10th April, 2006, the A.Y. of search is 2007-08 and not the impugned A.Y. 2006-07. 13.1. During the impugned A.Y. 2006-07, the assessment may have been framed .....

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