TMI Blog2019 (10) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee by: Shri Sunil Ganoo Revenue by: Shri Vishwas Munde ORDER PER D. KARUNAKARA RAO, AM: There are two appeals under consideration filed by two different assessees involving same assessment year 2003-04. The appeal in ITA No.1427/PUN/2011 pertains to Late Shri Babanlal B. Agarwal (Shri Anil B. Agarwal is a legal heir) filed against the order of CIT(A)-II, Nashik dated 28.09.2011 for the Assessment Year 2003-04. Further, the appeal in ITA No.300/PUN/2014 pertains to Anil Babanlal Agrawal (Individual) and it is filed against the order of CIT(A)-II, Nashik dated 03.01.2014 for the Assessment Year 2003-04. 2. Before us, at the outset, ld. Counsel for the assessee submitted that in these two appeals, the facts are identical and the legal issues involved are common. Mentioning the facts of these two appeals, the ld. Counsel submitted that a search action u/s 132 of the Act was conducted in the case of Chhoriya group on 22.08.2008. The said search action resulted the seizure of incriminating material by way of a diary containing various entries. Such entries relate to both the two ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are bad in law, null and void ab initio and without jurisdiction and hence the impugned reassessment order and the impugned appellate order may please be annulled. 2. Without prejudice to other grounds of appeal and by way of an alternate submission it is submitted that, the learned Assessing Officer ought to have framed the assessment order u/s 153C of the I.T. Act 1961 and having failed to do so, the impugned reassessment order is bad in law, null and void ab initio and without jurisdiction and hence the impugned assessment order and the impugned appellate order may please be annulled. 3. Since the impugned reassessment order is passed in utter disregard and violation of the principles of natural justice the same is bad in law and null and void and the learned C.I.T.[A] ought to have annulled the same. It is requested that the impugned assessment order may please be annulled. 4. The learned C.I.T.[A] has grossly erred in confirming the various additions made by the learned Assessing Officer on the basis of documents seized from Chhoriya Group of cases during search and seizure action, having complete disregard to the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emraj Choudhari (supra) and (ii) Shri V.L. Khandge (supra). For the sake of completeness, the contents of para 7 to 10 of the order of the Tribunal in the case of Jayant Hemraj Choudhari (supra) are extracted hereunder :- 7. Before me, at the outset, ld. Counsel for the assessee brought my attention to the above extracted additional ground no.1 and submitted that this a case of issuing notice u/s 153C of the Act as the information relating to the assessee was found from the documents seized belonging to Sinhagad Technical Education Society (STES). Further, bringing my attention to the amended provisions of section 153C by the Finance Act, 2015 w.r.e.f. 01.06.2003 (A.Y. 2004-05), ld. Counsel submitted that the amended provisions are in existence at the time of issue of notice u/s 148 of the Act dated 21.04.2016 whereby the law makers have widen scope of provisions of section 153C of the Act for taxing such income of ₹ 15 lakhs in this case. The ld. Counsel submitted that this is a clear case of information pertaining to the assessee emanating belonging from the documents to Sinhagad Technical Education Society (STES). Both these expressions fall in the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he residential premises of Shri Ganesh Khandge on 12.02.2013. During the course of search proceedings, it was found that Shri Vasant Laxman Khandge i.e. assessee before us, father of Shri Ganesh Khandge, along with his brother Shri Dattatreya Laxman Khandge had sold land situated at Talegaon to Namrata Developers. The transaction related to assessment year 2006-07. The Assessing Officer while recording reasons for reopening the assessment mentioned that the assessee had declared income from long term capital gains on the sale of said land in the return of income. Secondly, from the evidences seized / impounded, it was observed that the assessee and his brother had entered into Joint Venture Agreement with Namrata Developers to evade tax on sale of land, since on the said land Namrata Developers developed 80IB(10) project and claimed deduction on the entire project. Thereafter, the Assessing Officer has raised various issues in respect of suppression and short computation of long term capital gains by increasing cost of acquisition and / or suppression the sale consideration. Reference is also made to the statement of Shri Ganesh Khandge, the person searched, which was recorded unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as mentioned above including sections 147 / 148 of the Act. In other words, where the provisions of section 153C of the Act are attracted in given set of facts and the documents impounded during the course of search, then the proceedings have to be initiated under section 153C of the Act as per prescribed procedure and no proceedings can be initiated under section 147 / 148 of the Act. The said proposition has been held by the Pune Bench of Tribunal in the case of Joshi Wadewale Hadapsar Vs. DCIT in ITA Nos.105 106/PUN/2016, relating to assessment years 2009-10 2010-11 with lead order in the case of Mrs. Vasundhara Shailesh Joshi Vs. DCIT in ITA Nos.95 96/PUN/2016, relating to assessment years 2009-10 2010-11, vide consolidated order dated 27.03.2018. The relevant findings of the Tribunal are as under:- 28. The first issue which arises is whether the assessment in such circumstances was to be made under section 153C or 148 of the Act and connected issue is whether such an issue of assessment being completed under a particular section was valid or not, can be raised while deciding the issue of levy of penalty under section 271(1)(c) of the Act against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of section 143 has been served and limitation of serving the notice under subsection (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before 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, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A. 29. Section 153C of the Act very clearly lays down that notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 153 of the Act, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing seized or requisitioned, belongs to; or any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, such books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 147 / 148 of the Act are thus, not correctly initiated. 9. The issue raised in the present appeal is squarely covered by the issue before the Tribunal in Joshi Wadewale Hadapsar Vs. DCIT (supra) and following the same parity of reasoning, we hold that re-assessment proceedings initiated against the assessee under section 147 / 148 of the Act are not warranted. The Assessing Officer after receipt of information belonging to the assessee should have invoked provisions of section 153C of the Act and not section 147 / 148 of the Act. Accordingly, we hold so. Consequently, re-assessment order passed of the Act does not stand. under section 148 The Assessing Officer is thus, directed to cancel the same. Consequently, the additional ground of appeal raised by the assessee is allowed and we hold that assessment framed by the Assessing Officer is null and void. Consequently, the issue raised on merits by the assessee and the Revenue becomes academic in nature and the same are dismissed. 10. The facts and issues in ITA Nos.1972/PUN/2014 2056/PUN/2014 are identical to the facts and issues in ITA Nos.1971/PUN/2014 2057/PUN/2014 and our decision i ..... 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