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2016 (10) TMI 847 - ITAT DELHI

2016 (10) TMI 847 - ITAT DELHI - TMI - Validity of assessment u/s 153A - follow of procedures - Held that:- Assessing Officer has not followed the procedure while following the incorrect provisions of law under Section 153A of the Act which is not applicable in the assessee’s case as the assessee was not in existence at the relevant time. As per Section 153A of the Act, assessment u/s 153A of the Act can be completed only in the case of such person where the warrant u/s 132 of the Act has been e .....

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ment will not be treated as estoppel against the law established. As held in case of CIT Vs. Spice Infotainment Ltd. (2011 (8) TMI 544 - DELHI HIGH COURT ) consent cannot confer jurisdiction. It is pertinent to note that CIT(A) has taken into account all the aspects about the proceedings conducted u/s 153A of the Act. Then he has also given the finding in respect of how the proceedings were conducted in assessee’s case. The CIT(A) allowed all the five grounds of the assessee company while holdin .....

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eals is as follows : - 1(a) On the facts and in law and in the circumstances of the case, the Ld.CIT(A) has erred in holding that no valid notice u/s 153A of the I.T Act, 1961 hs been issued and annulling the assessment so made. 2. The order of the Ld.CIT(A) is erroneous and not tenable in law and on facts. 3. A search & seizure action u/s 132(1) of the Act took place on 22/3/2006 at the business premises of M/s Balaji Perfumes group which is in the business of manufacturing and trading of G .....

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nufacturing concerns is as under: i) M/s Balaji Products (a partnership firm of Sh. Ajay Gupta and Sh. Anoop Gupta from 1/4/1995 to 25/11/2000). ii) M/s Balaji Products ( a proprietary concern of Sh. Ajay Gupta from 1/5/1999 to 25/11/2000 and even continued thereafter). iii) M/s Balaji Perfumes (a partnership firm of Sh. Varun Gupta s/o Sh. Abhay Gupta and Smt. Deepta Gupta w/o Sh. Anoop Gupta 5/2/2001 to 27/7/2005). iv) M/s Balaji Perfumes (stated to be a proprietary concern of Sh. Varun Gupta .....

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e u/s 143(2) along with questionnaire fixing the case for hearing on 12/11/2007 but nobody attended on this date. However, subsequently on 4/12/2007 the case was fixed and there had been part compliance. 6. In the same para 8 of the assessment order (for all the years) the A.O has mentioned that photocopy of partnership deed was also filed showing that Smt. Deepa Gupta and Sh. Varun Gupta as partners. He has also mentioned that books of account of M/s Balaji Perfumes were also produced though no .....

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ad with Section 153A cannot be held as valid and thus allowed the appeal of the assessee. 8. The Ld. DR submitted that the assessee has not informed that there is a dissolution of firm, thus warrant of authorities contains the name of Balaji unless and until Department is not known about the dissolution of firm it will proceed as it is. The assessee was never confronted about the CIT(A). 9. The Ld. AR submitted that the CIT(A) has categorically decided the proceedings u/s 153A, he pointed out pa .....

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tion by the amalgamated company in proceedings did not cure the defect because there can be no stipulating law. The assessee also relied on the Hon ble Delhi High Court judgment in case of Spice Infotainment Ltd. Vs CIT (2012) 247 CTR 500 (Del) wherein it is held that mere participation by the appellant would be of no effect as there is no estoppel against law. 11. We have heard both the parties and perused all the records. M/s. Balaji Perfums (Partnership Firm) was dissolved on 27.07.2005. This .....

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n made on the strength of such an invalid search warrant. Balaji Perfumes (Firm) and Balaji Perfumes (Prop. Concern) are two different persons as defined u/s 2(31) of the Income Tax Act, 1961. Both are having different PAN. In the case of Prop. Concern the assessment made in the name of proprietor whereas in the case of Firm, a separate PAN is obtained. Firm being non-existent person, no warrant can be executed on non-existent person. Thus, it was for Prop. Concern and further mentioning the nam .....

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