TMI Blog2020 (1) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... s made only on that basis. Therefore, there was no justification for the A.O. to have been initiated proceedings under section 147/148. The correct course of action would have been to proceed against the assessee under section 153C. Therefore, initiation of re-assessment proceedings under section 147/148 is wholly invalid, void and bad in Law. Since the correct procedure have not been adopted by the A.O. and there is no justification to initiate the re-assessment proceedings against the assessee, we set aside the Orders of the authorities below and quash the reopening of the assessment. Resultantly, all additions stands deleted. Appeal of Assessee allowed. - ITA.No.777/Del./2019 - - - Dated:- 14-1-2020 - Shri Bhavnesh Saini, Judicial Member And Shri N.K. Billaiya, Accountant Member For the Assessee : Shri Ashwani Kumar, C.A., Shri Rohit Jain, Advocate, Shri Deepesh Jain, C.A. And Shri Arpit Goel, C.A. For the Revenue : Shri Ved Prakash Mishra, Sr. DR ORDER PER BHAVNESH SAINI, J.M. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-27, New Delhi, D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l return of income filed on 09.12.2010. PB-1 is notice under section 148 Dated 12.02.2015. PB-9 is letter of the A.O. extracting the reasons for notice under section 148. PB-10 is reply of the assessee denying giving any loan to Shri Naresh Sabharwal supported by the affidavit which was filed during the assessment proceedings in the case of Shri Naresh Sabharwal. PB-25 is copy of the loan agreement provided by the Department. PB-27 is assessment order in the case of Shri Naresh Sabharwal under section 153A r.w.s. 143(3) Dated 21.03.2014. PB-32 is reasons for reopening of the assessment. Learned Counsel for the Assessee submitted that since Shri Naresh Sabharwal as well as assessee have denied giving of any cash loan and that no evidence have been found giving loan by assessee to Shri Naresh Sabharwal, therefore, reopening of the assessment is bad in law. Further the loan agreement was found during the course of search in the case of Shri Naresh Sabharwal and assessment under section 153A have been completed in his case, therefore, assessment in the case of assessee should have been made under section 153C only which is a special provision. Therefore, re-assessment in the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 145 DLT 280 [DB] [Del.] [HC]. 05. Commissioner of Income Tax vs., Lubtec India Ltd., [2009] 311 ITR 175 [Del.] [HC]. 06. Order of ITAT, Delhi C-Bench, Delhi in the case of Amarjit Singh Bakshi (HUF) vs., ACIT [2003] 86 ITD 13 [Del.] [TM]. 07. Order of ITAT, Guwahati Bench, Guwahati in the case of M/s. Fantastic Buildcon Pvt. Ltd., Guwahati vs., ITO, Ward-2(1), Guwahati in ITA.No.104/Gau/2011 SP.No.09/Gau/2011, Dated 07.02.2012. 08. Order of ITAT, Mumbai D-Bench-T.M. Mumbai in the case of S.P. Goyal vs., DCIT [2002] 82 ITD 85 [Mum.]. 09. Judgment of Hon ble Supreme Court in the case of Commissioner of Income Tax vs., Smt. P.K. Noorjahan [1999] 237 ITR 570 [SC]. 7. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and submitted that reassessment proceedings have been rightly initiated based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the reasons A.O. has mentioned that search was conducted in the case of Shri Naresh Aggarwal [wrongly mentioned the name] and that during the course of search it was found that assessee has given cash loan of ₹ 1 crores to Shri Naresh Sabharwal on 17.12.2009. Copy of the agreement is filed at page-25 of the PB. A.O. has also mentioned in the reasons that both the parties have denied to have given or taken any cash loan. Thus, Shri Naresh Sabharwal has never agreed that he has taken any cash loan from the assessee. Copy of the agreement is filed in the paper book which is signed by 02 witnesses, but, none have been examined by the A.O. to confirm the genuineness of the transaction in the matter. No original agreement have been brought on record or examined by the A.O. No report of hand-writing expert have been obtained by the A.O. before recording the reasons for reopening of the assessment. Thus, only photo copy have been taken on record without examining the validity of the same agreement. Since Shri Naresh Sabharwal has denied to have taken any loan from the assessee, therefore, before recording the reasons, it is the duty of the A.O. to bring some concrete and corroborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edial action in the matter. It is well settled Law that in the case of assessment made on assessee consequent to the search in another case, A.O. is bound to issue notice under section 153C and thereafter proceed to assess the income under section 153C and if A.O. had proceeded with re-assessment under section 147/148 of the I.T. Act and passed the Order under section 143(3)/148 of the I.T. Act, the same would be illegal and arbitrary and without jurisdiction. We rely upon the Order of ITAT, Visakhapatnam Bench in the case of G. Koteswara Rao (supra). In the case of ITO vs., Arun Kumar Kapoor [2011] 140 TTJ 249 (ASR-ITAT) [Paper Book at Page- 71], the ITAT, Amritsar Bench held as under : On a perusal of section 153C, it would be clear that the provisions of this section are applicable, which supersedes the applicability of provisions of sections 147 and 148. In the instant case, the documents were seized during the search under section 132 and the same were sent to the Assessing Officer of the assessee and, thus, the Commissioner (Appeals) has correctly observed that only the provision in which any assessment could be made against the assessee was section 153C, r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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