9911796707
TMI Blog2019 (2) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... missing the appeal of the Assessee and in upholding the order passed by the AO. 3. That the income has been wrongly & illegally assessed at Rs. 51,10,000/- as against Rs. 80,890/- in case of Meer Hassan and Rs. 50,33,640/- against Rs. 97,950/- in case of Ali Hassan, declared by the assessee. 4. That the addition of long term capital gain has been wrongly & illegally made and it is wrongly upheld by CIT (Appeal). 5. That the addition has been made & the order has been passed without giving proper & reasonable opportunity to the Assessee. 6. That in view of the facts and circumstances of the case the CIT (Appeal) has erred on facts & law in upholding the addition of Rs. 50,29,110/- and Rs. 49,35,600/- in case of Meer Hassan and Ali Hassan respectively on account of alleged undisclosed sale consideration received by assessee & has also erred in relying on document found from third party. 7. That the CIT (Appeal) has failed to appreciate that the alleged sale consideration was never accrued nor received by the assessee, hence the addition is illegal & bad in law. 8. That the additions made by the AO and upholding the CIT (Appeal) are unjust, unlawful and are based on near s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the facts and circumstances of the case. 6. Assessees by moving application dated 13.09.2018 sought to raise the additional ground no.1A which is to the following effect :- "That on the facts and in the circumstances of the case and law, the A.O. has erred in initiating proceedings on the basis of incriminating material of appellant found in search of other persons u/s 147 of the Act and CIT (Appeals) in upholding such assessment, when provisions of Section 153C for assessment only were applicable and not of section 147 & section 148." 7. It is contended by the ld. AR for the assessee that this additional ground could not be raised due to inadvertence which was neither willful nor intentional. The ld. DR for the Revenue opposed the application for additional ground on the ground that the assessee has first time raised this ground which is not permissible under law. Ld. DR for the Revenue also relied on the judgments in cases of CIT vs. Manish Buildwell (P.) Ltd. (2011) 16 taxmann.com 27 (Delhi), Keshav Mills Co. Ltd. vs. CIT (1965) 56 ITR 365 and Goetze India Ltd. vs. CIT 2006-TIOL-198-SC-IT. 8. However, we are of the considered view that this ground was very mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inating material seized during search at the premises of M/s. R.B. Enterprises on 04.03.2009, AO as well as CIT (A) have erred in initiating the proceedings u/s 147 of the Act." 13. The ld. AR for the assessee challenging the impugned order contended that when the AO has specifically relied upon material/ documents LP-103 A-1 pages 30 seized during the search operation conducted at the premises of M/s. R.B. Enterprises, he had the authority to assess that person u/s 153C of the Act as the provisions contained u/s 153C are non-obstante provisions which specifically exclude the operation of section 147 of the Act and as such, assessment framed in this case u/s 147 is not sustainable in the eyes of law. 14. However, on the other hand, ld. DR for the Revenue relied upon the order passed by the ld. CIT (A). 15. For facility of reference, provisions contained u/s 153C are extracted for ready perusal as under :- "153C. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that,- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisition 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 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." 16. Bare perusal of the provisions contained u/s 153C which is a non-obstante provision shows that when the assessment order shows that the assessment proceedings were to be initiated on the basis of incriminating material found in search of a third party, as in the present case, the provisions contained u/s 153C are applicable which specifically excludes applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons recorded and the assessment order that the initiation of reopening proceedings was made by the Assessing Officer on the basis of information received from the Directorate of Income-tax (Inv.) on the basis of search & seizure operation conducted at the premises of Rock Land Group of Cases and the documents related to the assessee found during the course of search were made available to the Assessing Officer of the present assessee. We thus respectfully following the decision of Co-ordinate Bench of the ITAT in the case of ACIT vs. Arun Kapur - 140 TTJ 249 (Amritsar) hold that provisions of sec. 153C of the Act were applicable in the present case for framing the assessment, if any, which excludes the application of sec. 147 of the Act, hence, notice issued under sec. 148 of the Act and assessment framed in furtherance thereto under sec. 147 read with section 143(3) of the Act are void ab initio. The reassessment in question is accordingly quashed. The ground No.1 is accordingly allowed." 20. Similarly, coordinate Bench of the Tribunal in case cited as ITO vs. Arun Kumar Kapoor - (2011 140 TTJ 249 has upheld the reassessment order quashed by the ld. CIT (A) by returning ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
