TMI Blog2019 (4) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is something different to argue that nothing incriminating was found during the search and, therefore, it is not open for the AO to make any addition qua the assessee. We, therefore, reject the first contention of the assessee. Assessment Years 2010-11 - Except jewellery, no material much less incriminating material was found during the search that took place on 16/1/2013. It is, therefore, clear that after the search, Ld. AO sought to reopen the concluded assessment for the Assessment years 2010-11 and 2011-12. In view of the decision of the Hon’ble judicial High Court in the cases of Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT]; Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT]; and Lata Jain [2016 (5) TMI 1273 - DELHI HIGH COURT] no assessment could be framed and section 153A of the Act in the absence of any incriminating material recovered during the search qua the assessee qua the assessment years. We are, therefore, of the considered opinion that the additions made for the Assessment Years 2010-11 and 2011-12 made in the absence of any incriminating material is bad under law and cannot be sustained. No notice u/s 143(2) was issued till 20.9.2014 beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search and seizure action under section 132 of the Act was conducted on Vatika group of cases and in that process search was carried out at 2 lockers held in the name of the assessee at a Metropolis Vault Private Limited;the premises of Metropolis Vault Private Limited was subjected to search and that an order under section 132(3) of the Act restraining the operation of locker Nos. 722 and 875 standing in the name of the assessee was issued and not on the assessee. The vault was owned by the company, so also the premises belong to such company. Assessee, therefore, contends that merely restraining the assessee from operating the locker by passing an order under section 132(3) of the Act is not enough in law to hold that Search has been initiated against the assessee under section 132(1) of the Act. 5. Insofar as the legality of the additions are concerned, the contention of the Ld. AR is that for the assessment years 2010-11, 201112 and 2012-13 the assessee filed the returns of income on 30/7/2010, 11/7/2011 and 31/8/2012 respectively and the aforesaid returns were not scrutinised as no notice under section 143(2) of the Act was issued and, therefore, it is clear that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issuance of notice under section 153A of the Act is bad under law is concerned, it is necessary for us to look into the order under section 133 (2) in respect of locker nos. 722 and 875 at Metropolis Vault Private Limited and the Punchnama prepared at the time of operation of locker No. 722 along with Annexures. 9. Page numbers 35 36 of the paper book are comprised of the order under section 132(3) of the Act restraining the lockers No. 722 and 875 of the assessee with the Metropolis Vault Private Limited. It is clearly mentioned therein that lockers No. 875 and 722 in the name of Suneel Bhalla, r/o: 161/1C, W3 lane, Western Avenue, Sainik forms, New Delhi at Metropolis Vault, Aurbindo Marg, Hauz Khas, New Delhi or any other locker/save/vault in his name or in the name of any other person who is the authorised signatory etc. Further page 25 to 34 of the paper book is a copy of Punchnama prepared at the time of operation of locker No. 722 which also contains the entry warrant in the case of: locker No. 722, in the name of Sh. Sunil Bhalla at Metropolis vault private limited . This Punchnama is prepared in the presence of the assessee and he is one of the signatories t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively, and the due date for issuance of notice under section 143(2) of the Act was 30/9/2011, 30/9/2012 and 30/9/2013 respectively. Further, it is also not in dispute that no notice under section 143(2) of the Act was issued till date of search in respect of any of these years. It could, therefore, be seen from the record that for non-issuance of notice under section 143(2) of the Act by the respective due dates, the assessments for assessment years 2010-11 and 2011-12 stood concluded. 12 It is an admitted fact that except jewellery, no material much less incriminating material was found during the search that took place on 16/1/2013. It is, therefore, clear that after the search, Ld. AO sought to reopen the concluded assessment for the Assessment years 2010-11 and 2011-12. In view of the decision of the Hon ble judicial High Court in the cases of Kabul Chawla (supra);Meeta Gutgutia (supra); and Lata Jain (supra,) no assessment could be framed and section 153A of the Act in the absence of any incriminating material recovered during the search qua the assessee qua the assessment years. We are, therefore, of the considered opinion that the additions made for the Assessment Years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial substantiating the claim of the assessee on record, Ld. Assessing officer proceeded to treat the income from house property offered by the assessee as income from other sources and denied the standard deduction of 30% claimed by the assessee. 16. Before the Ld. CIT(A) also assessee did not produce any evidence whatsoever and on the other hand contended that by producing the rent agreement the assessee discharged his onus and Ld. AO could not have decided the issue against the assessee without any independent exercise to disprove the submissions made by the assessee. 17. Learned CIT(A) on a careful consideration of the contentions raised before him by the assessee held that the persons who claim the benefit under the provisions of the Act has to prove before the authorities that he is entitled to the benefit by placing proper and sufficient material to that effect but in so far as this case is concerned, the so called rent agreement is a self serving one signed by the assessee alone and not verified by the other party, and in the absence of any address of the tenant being given, it is not possible for the department also to make any enquiry. Learned CIT(A), therefore, fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before us is that for this year the assessee filed their return of income on 30.9.2014 declaring a total income of ₹ 13,17,925/- and the due date for issuance of notice u/s 143(2) was 30.9.2014. it is submitted that no notice u/s 143(2) was issued till 20.9.2014 beyond the period provided u/s 143(2) of the Act. 24. Learned AR submitted that the service of notice u/s 143(2) of the Act on the assessee within the period provided under proviso to Section is mandatory and in the absence of such notice being served within the stipulated period, the assessment proceedings come to an end and any assessment made in violation of this provision is without jurisdiction. He placed reliance on the decision reported in HarsingarGutkha p. Ltd.vs CIT, 336 ITR 90 of the Hon ble Allahabad High Court and CIT Bangalore vs M/s Pai Vaibhav Hotels P. Ltd. dated 5.4.2010 by the Hon ble Karnataka High Court for this proposition. 25. Learned DR placed reliance on the orders of the authorities below in so far as this aspect is concerned who submitted that in the statement of oath u/s 132(4), the assessee claimed that the jewellery found during search was recorded in wealth tax returns filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanna vs. CIT (2002) 255 ITR 220 (P H), CIT vs. Bhan Textiles (P) Ltd. (2006) 287 ITR 370 (Del), CIT vs. Lunar Diamonds Ltd. (2006) 281 ITR 1 (Del), and Dy. CIT vs. Mahi Valley Hotels Resorts (2006) 287 ITR 360 (Guj), held that perusal of the provisions of s. 143(2) of the Act shows that the service of the notice on the assessee within the period provided under the proviso is mandatory. In the absence of the notice being served within the stipulated period under s. 143(2) of the Act, the assessment proceeding comes to an end and is deemed to have become final. 29. The Hon ble Karnatka High Court in the case of M/s s Pai Vaibhav Hotels P. Ltd. Ltd. (supra)had held in paras 5 to 7 as under: 5. During the course of arguments, the learned counsel for the respondent has raised the question of limitation by drawing our attention to proviso to section 143(2) of the Income Tax Act by contending that the notice issued u/s 143(2) of the Act, in the instant case was beyond the prescribed period mentioned in the said proviso. In the instant case the date of filing of the return was on 4.5.1999 and that the notice was issued on 9.8.2002 which is beyond one year from the end of the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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