TMI Blog2017 (2) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment'' as defined in Section 158B, included the period up to the date of commencement of search or date of requisition in the previous year, the said search was conducted or requisitioned or made, but this is missing in Section 153A. Thus assessment under Section 153A for A.Y. 2006-07 is not sustainable. Question no.1 is therefore answered by holding that mere mention of a wrong provision will not deny jurisdiction to the authority, if it otherwise has, but this aspect has no application to the present case. Question no.2 is answered against appellant. - INCOME TAX APPEAL No. 25 of 2010, INCOME TAX APPEAL No. - 26 of 2010, INCOME TAX APPEAL No. - 27 of 2010 - - - Dated:- 28-2-2017 - Sudhir Agarwal and Ravindra Nath Mishra-II, JJ. For The Appellant : D.D.Chopra,Alok Mathur For The Respondent : Rakesh Garg, Mudit Agarwal JUDGMENT Hon'ble Sudhir Agarwal,J. Hon'ble Ravindra Nath Mishra-II,J. 1. Heard Sri Alok Mathur, learned counsel for the appellant and Sri Mudit Agarwal for the respondent. 2. All these appeals have been filed under Section 260-A of Income Tax Act, 1961 (hereinafter referred to as the Act, 1961 ) arising from a common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18.10.2007 stating that his original return filed on 31.10.2006 may be treated as return in response to notice under Section 153A. 7. Total income in the Assessment Year 2006-07 shown in the return along with computation of income by Assessee is ₹ 4,98,450/- and Agricultural income ₹ 24,500/-. Assessing Officer served a notice under Section 143(2) on 25.10.2007. A questionnaire in the form of notice dated 02.11.2007 under Section 142 (1) was also served upon Assessee on 05.11.2007. Another notice dated 15.11.2007 was issued under Section 142(1) calling for certain further details, which were supplied on 26.11.2007. Thereafter show cause notice was issued on 10.12.2007 as to why additions based on material on record should not be made to the income of Assessee. Thereafter he(Raj Kumar Jaiswal) filed replies dated 04.12.2007, 10.12.2007 and 13.12.2007. Assessment order was passed on 28.12.2007 by Assistant Commissioner of Income-tax, Central Circle, Lucknow (hereinafter referred to as ACIT ) after obtaining approval of Additional Commissioner of Income Tax, Central Range, Lucknow (hereinafter referred to as Addl. CIT (CR) ) vide letter dated 28.12.2007 and tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared with the help of challan received with the material and in the financial books, entries are made with the help of bills/invoices. Thus, it is not necessary that entry is made in the both the records simultaneously. In view of the above, particularly in view of the fact that in the statement recorded at the time of the search it was clearly stated that stock belonging to family concerns, who live together and share common kitchen, were kept in the premises of other concerns, and the value of stock in the books of the family concerns is more than that of found during the search/survey action, the addition made by the Assessing Officer is directed to be deleted. 9. CIT(A) also answered a more formidable question that the search having been conducted on 10.11.2005, assessment for A.Y. 2006-07 could not have been made under Section 153A. CIT (A) considered Section 153A in the light of Central Board of Direct Taxes Circular no. 07/03 dated 05th September, 2003, observing that notice under Section 153A is to be issued to Assessee to furnish return of income in respect to each A.Y. falling within 06 Assessment Years referred to in Clause (b). Section 153A (1) (b) of Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.--For the removal of doubts, it is hereby declared that,-- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dass and others Versus Prescribed Authority etc and Another 1978 (4) ALR 753. 16. However the above proposition has no application for the reason, when a power is exercised under a particular provision and in the manner,it is so contemplated in such substantive provision, then this defence is not open that it may be treated as a mere mistake of wrong provision of the statute. Notice was specifically served under Section 153A. Assessment order clearly says that it is being passed under Section 153A. Moreover, jurisdiction for making assessment under Section 153A read with Section 153C apparently is quite different than requirement of notice under Section 143(2) of Act, 1961 and assessment made under Section 143(3). 17. We find that this aspect has also been discussed by Tribunal and it has observed as under: 16................The provisions of section 153A read with section 153C empower the AO to proceed with the assessment in search cases mentioned therein meaning thereby that the AO gets jurisdiction to proceed for making assessment in search cases covered by these provisions, whereas provisions of section 143(2) subject to limitation provided under proviso to the sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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