TMI Blog2020 (1) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the above, we are of the view that assessment order is illegal and bad in law and cannot be sustained in Law. - Decided in favour of assessee - ITA.No.610/Del./2016 - - - Dated:- 17-1-2020 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Ms. Sweety Kothari, C.A. For the Revenue : Ms. Rakhi Vimal, Sr. DR ORDER PER BHAVNESH SAINI, J.M. This appeal by assessee has been directed against the Order of the Ld. CIT(A)-29, New Delhi, Dated 31.12.2015, for the A.Y. 2012-2013 on the following grounds : 1. The Ld. CITA(A) erred in law and on facts in holding the assessment framed u/s. 143(3) of the Act as valid even when the same should have been framed u/s 153A r.w.s. 153C since the satisfaction note was prepared by the Assessing officer on 29/01/14, which became the substituted date of search u/s 153C and the A.Y. 2012-13 fell within the six preceding assessment years, i.e., from AY 2008-09 to 2013-2014 for the purpose of assessment u/s 153A. Thus, the assessment framed u/s 143(3) is not valid and should be ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3) is not valid and should be annulled. He has submitted that copy of the satisfaction note Dated 29.01.2014 is filed at page-29 of the PB and that in A.Y. 2007-2008 appeal of assessee has been decided by ITAT, Delhi A-Bench in ITA.No.5921/Del./2014, Dated 17.05.2016, copy of which is filed at page-1 of the PB, in which the assessee on the basis of the above contention submitted that assessment framed under section 153A/143(3) for A.Y. 2007-2008 is void abinitio as barred by limitation. The contention of assessee was accepted by the Tribunal and appeal of assessee has been allowed. Learned Counsel for the Assessee also relied upon Order of ITAT, Delhi A-Bench in the case of M/s. BNB Investment and Properties Ltd., vs., DCIT 68 ITR 567 (Delhi-Tribunal). 5. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and submitted that A.O. has correctly passed the order under section 143(3) of the I.T. Act, 1961. 6. We have considered the rival submissions. In A.Y. 2007-2008 assessee contended before the Tribunal that assessment is barred by limitation since the satisfaction contemplated under section 153C of the I.T. Act was record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made except in cases where any assessment or reassessment has abated.] [(2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made under section 153C of the Act would also have to be construed with reference to the date of handing-over of assets or documents to the Assessing Officer of the assessee. The amendment in section 153C of the Act by the Finance Act, 2017 with effect from April 1, 2017 to the effect that the Block Period for the person in respect of whom the search was conducted as well as the other person would be the same six assessment years immediately preceding the year of search is prospective. A search under section 132 of the Income-tax Act, 1961 took place on November 11,2010 in the T group of cases. The documents pertaining to the assessee were forwarded along with a satisfaction note by the Assessing Officer of the party in respect of which the search was conducted to the Assessing Officer of the*assessee on January 3, 2013. The Assessing Officer of the assessee issued notice to the assessee under section 153C of the Act on January 4,2013 for the assessment year 2006-07. The Tribunal held that the notice issued to the assessee under section 153C of the Act for the assessment year 2006-07, was without jurisdiction since the assessment year was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation as canvassed by the Revenue is accepted, it would mean that whereas in case of a person searched, assessments in relation to six previous years preceding the year in which the search takes place can be reopened but in case of any other person, who is not searched but his assets are seized from the searched person, the period for which the assessments could be reopened would be much beyond the period of six years. This is so because the date of handing over of assets/documents of a person, other than the searched person, to the AO would be subsequent to the date of the search. This, in our view, would be contrary to the scheme of Section 153C(1) of the Act, which construes the date of receipt of assets and documents by the AO of the Assessee (other than one searched) as the date of the search on the Assessee. The rationale appears to be that whereas in the case of a searched person the AO of the searched person assumes possession of seized assets/documents on search of the Assessee; the seized assets/documents belonging to a person other than a searched person come into possession of the AO of that person only after the AO of the searched person is satisfied that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te justified in considering the assessment for assessment year 2003-04 as outside the scope of section 153C of the Act, being barred by limitation and without jurisdiction. Accordingly, the impugned assessment order is liable to be quashed. We decide accordingly. 7.3. The ITAT, Delhi, C-Bench, in the case of Pavitra Realcon Pvt. Ltd., New Delhi vs. ACIT, C.C.32, New Delhi (supra) under the same circumstances held that assessment completed under section 143(3) is invalid . The relevant para- 16 of the order is reproduced as under : 16. We find the year for which the impugned assessment order has been passed u/s 143(3) is for assessment year 2011-12. This year falls within the period of six years when counted from the date of recording of satisfaction note u/s 153/153C of the I.T. Act which is deemed date of search. The Act h a s been amended recently by the Finance Act, 2017 with prospective effect i.e., from assessment year 2018-19. Thus, the period is same now only for the searched parties as well as the other person as per the amended provisions of the said section. In view of the above, we hold that the assessment completed u/s 143(3) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stained. The contention of the Ld. D.R. have already taken care in the above judgments. 9. Considering the totality of the facts and circumstances of the case, we set aside the orders of the authorities below and quash the same and allow the additional grounds of appeals. Resultantly, all additions stands deleted. Since the assessment order is set aside on legal grounds, therefore, there is no need to decide the addition on merit which has been left with academic discussion only. 10. In the result, ITA.No.504/Del./2013 of the Assessee is allowed . 6.1. Considering the facts of the case in the light of above decisions, it is clear that the impounded documents have been received by A.O. on 29.01.2014 when satisfaction under section 153C have been recorded. The First Proviso to Section 153C of the I.T. Act provides that six assessment years in which assessment or re-assessments could be made under section 153C of the I.T. Act would also have to be considered with reference to the date of handing over of the assets or documents to the A.O. of the assessee. Therefore, the six assessment years und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
