TMI Blog2018 (8) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... OUNTANT MEMBER Assessee by : Shri Salil Agarwal, Adv. Sh. Shailesh Gupta, CA Department by : Shri Ravi Kant Gupta, Sr. DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against the order dated 5th May, 2015, passed by the learned CIT(A)-XXVI, New Delhi (in short the CIT(A) ) for assessment year 2007-08, raising the following grounds of appeal: 1. The learned CIT(A) erred on facts and in law is passing exparte order against the assessee for failure on the part of the counsel of the assessee to appear on the date of hearing due to his personal difficulties and without intimation to the assessee company, thereby depriving assessee from the opportunity of being heard and natural justice. 2. The learned CIT (A) erred on facts and in law in confirming the addition of ₹ 93,00,000/- made by learned AO u/s 68, by an ex-parte appellate order on mere technical ground of non-appearance and procedural irregularity by counsel of the assessee and without considering the issue on merits i.e. identity, creditworthiness and genuineness of the following parties evidenced from documents on records: (i) BNB Construction Pvt. Ltd. - ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required and, therefore, the additional ground raised should be admitted. He also referred to the decision of the Hon ble Supreme court in the case of Jute Corporation of India Ltd. Vs. CIT, reported in 187 ITR 688 (SC), wherein it is held that the appellate authority has jurisdiction to permit the appellant to raise an additional ground, if the grounds so raised, could not have been raised when the return was filed or when the assessment was made and the ground became available on account of change of circumstances or law. 2.3 On the contrary, learned CIT (DR) opposed the admission of the additional ground and submitted that the assessee is claiming to nullify the assessment on technical ground which is clearly untenable and shows the shifting of stand of the assessee to wriggle out of payment of taxes by not arguing on merit. 2.4 We have heard the submissions of both the parties on the issue of admission of the additional ground. In our opinion, the facts in respect of date of search and recording of satisfaction note under Section 153C of the Act are available on record and, therefore, the investigation of the new facts is not required. In view of the above, following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A :] Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to 9*[subsection (1) of] section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person :] Assessee has quoted the first proviso to Section 153C for reaching the conclusion that for reopening of 6 years, the relevant date shall be the date of receiving of books of accounts i.e. 29.08.2013. However if one reads the 153C it is very clear in 153C(1) that Assessing Officer shall proceed against each such other person and issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted . No where the section contains the words the date of initiation of the search which are referred to by the first proviso to section 153C. Hence, the first proviso to section 153C is only referring to the abatement of existing proceedings as mentioned in second proviso to Section 153A (1) as clearly mentioned in the first proviso and further clarified by usage of words the date of initiation of the search which are nowhere mentioned else in the Section 153A(1), The fact is further clarified by the Amendment brought by Finance Act 2017 in section 153A for decreasing the time limit of completion of assessment and also increasing the period from 6 to 10 years in relevant cases, the consequential amendment has been done in 153C also which reads as under 153C.(1) -[Notwithstanding anything contained in section 139, sec- tion 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that, - (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x assessment years have to be calculated in accordance with the provisions of Section 153A of the Act. According to section 153A(1)(d), the six assessment years to be assessed or reassessed, are the six assessment years immediately preceding the assessment years relevant to the previous year in which search was conducted. In the case of M/s. Consortium Group a search was conducted on 28.07.2011 and, therefore, accordingly to learned CIT (DR), the six assessment years to be assessed or re-assessed should be from the assessment years 2006-07 to 2012-13. Whereas the learned counsel for the assessee has relied on the decisions of the Hon ble Delhi High Court in the case of RRJ Securities (supra) and Sarwar Agency Pvt. Ltd. (supra). In the case of Sarwar Agency (supra), this issue has been decided as under: 6. The case of the Revenue is that the first proviso to Section 153 C refers only to the second proviso to Section 153 A(1) of the Act, which only indicates that any assessment relating to any AY falling within the period of six AYs which is pending as of the initiation of search shall abate. Therefore, the second proviso to Section 153 C is also concerned only with the aspect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Section 153C of the Act, the reference to the date of initiation of the search in the second proviso to Section 153A has to be construed as the date on which the AO receives the documents or assets from the AO of the searched person. Thus, by virtue of second proviso to Section 153A of the Act as it applies to proceedings under Section 153C of the Act, the assessment/reassessment pending on the date on which the assets/documents are received by the AO would abate. In respect of such assessments which have abated, the AO would have the jurisdiction to proceed and make an assessment. However, in respect of concluded assessments, the AO would assume jurisdiction to reassess provided that the assets/documents received by the AO represent or indicate any undisclosed income or possibility of any income that may have remained undisclosed in the relevant assessment years..... 24. As discussed hereinbefore, in terms of proviso to Section 153C of the Act, a reference to the date of the search under the second proviso to Section 153A of the Act has to be construed as the date of handing over of assets/documents belonging to the Assessee (being the person other than th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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