TMI Blog2020 (5) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act for making the assessment and he cannot devise his own procedure. In our considered opinion, when the case of the assessee is covered under the provision of section 153 of the Act and if reliance is placed on the incriminating material found during the course of search of third-party, then provisions of section 153C of the Act would be applicable and have to be adhered to. Hon ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia [ 2017 (5) TMI 1224 - DELHI HIGH COURT] has held that the invocation of section 153A to re-open concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment year. Also confirmed by SC[ 2018 (7) TMI 569 - SC ORDER] Apparently, in the present case, no incriminating material was found qua the assessment year in question. Therefore, the assessment framed by the Assessing Officer in violation of the procedure provided in the Act is bad in law and void ab initio and cannot be sustained. - Decided in favour of assessee. - ITA No.5216/Del/2015, Cross Objection No.86/Del/ 2019 (Arising out of ITA No.5216/Del/2015) - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (A) also held that the transactions of sale of shares of M/s Costal Power Projects (P) Ltd. were real transactions relating to the assessee company. 2.3 The Department is now in appeal before this Tribunal challenging the adjudication by the Ld. CIT (A). The following grounds have been raised by the Department: 1. Whether on the facts circumstances of the case, the Ld. CIT(A) has erred in law on facts in deleting the addition of ₹ 2,78,43,961/- made by AO on account of disallowances of legal and professional expenses. 2. Whether on the facts circumstances of the case, the Ld. CIT(A) has erred in law on facts in allowing the losses of ₹ 7,03,15,125/- on account of sale of shares of M/s Blue Wing Tours Travels (P) Ltd. 3. Whether on the facts circumstances of the case, the Ld. CIT (A) erred in law on facts by holding that transaction of sale of shares of M/s Costal Power Projects (P) Ltd is a real transaction and relates to the assessee company. 4. Whether on the facts circumstances of the case, the Ld. CIT (A) has erred in law on facts by accepting the transaction of sale of shares of M/s Blue Wing Tours Travels (P) Ltd. as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the assessee in response to the application moved under the Right to Information Act, 2005 by the assessee. The Ld. AR submitted that in response to the details required under Serial No. a.c. in the said reply wherein the details were required regarding any incriminating material relating to or belonging to the assessee found from the premises of the assessee during search u/s 132 of the Act, the response against this query is left blank. He also drew our attention to the reply to assessee s application under Right to Information Act, 2005 wherein the assessee had requested copy of documents found and seized from the premises of the Dharampal Satyapal Group which were considered for the purposes of making disallowances in the assessment order. It was submitted that, as per the reply received, these documents were contained in Pages 1 to 158 of Annexure AA-1 seized from A-85, Sector-2, Noida, being offices of M/s Dharampal Satyapal Ltd. and Pages 1 to 30 of Annexure AA-10 seized from the same address. It was submitted that, thus, it was apparent that third party documents were used for making the impugned assessment. He also drew our attention to the fact that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to record satisfaction as the material belonging to the assessee in terms of section 153C of the Act and was then required to proceed as per the provisions of section 153C of the Act. In the instant case, it is evident that addition in dispute has been made in the assessment completed under section 153A of the Act. The Act has provided separate provisions for making assessments in case of material found in the course of the search from the premises of the assessee as well as the material found in the course of search at the premises of the third party. The Assessing Officer is required to follow the procedure laid down in the Act for making the assessment and he cannot devise his own procedure. In our considered opinion, when the case of the assessee is covered under the provision of section 153 of the Act and if reliance is placed on the incriminating material found during the course of search of third-party, then provisions of section 153C of the Act would be applicable and have to be adhered to. 6.1.1 In the case of Shivani Mahajan (supra), identical question was raised before the Tribunal as under: 9. We have carefully considered the arguments of both the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvocation of section 153A to re-open concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment year. The Revenue s SLP against this order of the Hon ble Delhi High Court was dismissed by the Hon ble Apex Court in the case of Pr.CIT vs. Meeta Gutgutia reported in 257 Taxman 441 (SC) . Apparently, in the present case, no incriminating material was found qua the assessment year in question. Therefore, the assessment framed by the Assessing Officer in violation of the procedure provided in the Act is bad in law and void ab initio and cannot be sustained. Therefore, placing reliance on the above mentioned judicial precedents, we quash the impugned assessment order. Accordingly, the Cross Objection of the assessee stands allowed. 6.3 Since, we have allowed the Cross Objection of the assessee and have quashed the assessment, the appeal of the Department does not survive and it is dismissed as in fructuous . 7.0 In the final result, the Cross Objection of the assessee stands allowed whereas the appeal of the Department stands dismissed. Order pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
