TMI Blog2017 (12) TMI 1744X X X X Extracts X X X X X X X X Extracts X X X X ..... stantive provision, then this defence is not open that it may be treated as a mere mistake of wrong provision of statute - Decided in favour of assessee. - ITA No. 830/Chd/2017 - - - Dated:- 11-12-2017 - Shri Sanjay Garg, Judicial Member Dr. B.R.R. Kumar, Accountant Member Appellant By : Sh. Ashwani Kumar Respondent By : Sh. Ravi Sarangal ORDER Sanjay Garg, The present appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), [hereinafter referred to as CIT(A)], Bhatinda dated 07.03.2017. 2. The assessee in this appeal has agitated the action of the CIT(A) in upholding the action of the Assessing officer in making add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of search action. The assessee unsuccessfully contested the above said additions before the CIT(A). 4. Before us, the assessee apart from agitating the additions on merits, has taken the additional legal ground, which reads as under:- On the facts and circumstances of the case, the impugned assessment framed u/s 153A deserves to be quashed as assessment for assessment year 2007-08 framed u/s 153A was not valid and void abinitio. The Ld. AR has contended that the assessment in this case was framed u/s 153A of the Act whereas as per the clause (b) of sub section (1) to section 153A, the Assessing officer would assess or re-assess total income of 06 assessment years immediately preceding the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajiv Kumar Vs. ACIT and of the Hon'ble Allahabad High Court, Lucknow Bench in the case of CIT (Central) Vs. Raj Kumar Jaiswal and others (supra) in ITA Nos. 25, 26, 27 of 2010. The Hon'ble Allahabad High Court (supra) while deciding the identical issue on framing of assessment u/s 153A of the Act for the assessment year relevant to the search year has observed that when a power is exercised under a particular provision and in the manner, it is so contemplated in such substantive provision, then this defence is not open that it may be treated as a mere mistake of wrong provision of statute. The relevant part of the observations made by the Hon'ble Allahabad High Court is reproduced as under:- 16. However the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiring the assessee to furnish the return of income or on notice issued under section 148 of the Act, meaning thereby that provisions of section 143(2) of the Act did not give jurisdiction to make an assessment under section 143(3) but make it obligatory to comply with these provisions before making assessment under section 143(3) or section 144 as the case may be. In view of this difference between the purpose and the result of taking recourse to provisions of section 153A read with section 153C on one hand and issuance of notice under section 143(2) of the Act on the other hand, we are unable to accept the plea advanced by the Ld. D.R. 17. Coming to the merits of the case, we, after having considered the provisions of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re answered by holding that mere mention of a wrong provision will not deny jurisdiction to the authority, if it otherwise has, but this aspect has no application to the present case. Question no.2 is answered against appellant. 7. In view of the above, since the legal issue raised in this appeal is squarely covered by the above referred to decisions, hence, respectfully following the same, this issue is decided in favour of the assessee. The assessment framed for the year under consideration is accordingly held to be void and the consequent additions made thereto are accordingly ordered to be deleted. 8. In the result, the appeal of the assessee is hereby allowed. Order pronounced in the Open Court on 11.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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