TMI Blog2019 (8) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... Objection by the assessee against the impugned order dated 24.02.2015 passed by Pr. CIT (OSD), Gurgaon u/s.153B(1)/143(3) for the Assessment Year 2012-13. 2. Though, the Revenue has challenged the addition of ₹ 38,61,24,029/- made on account of Short Term Capital Gain, whereas in the Cross Objection the assessee has challenged the very validity of assessment framed u/s.153B(1)/143(3) on the following grounds: 1. The order of AO as sustained by the CIT (A) is bad in law. 2. On the facts and under the circumstances of the case the Assessment order passed under section 153B(1)(b)/143(3), considering the impugned year as year of search, ignoring the date of receipt of material from the AO of searched person, is bad in law in terms of the Ist proviso of section 153C of the Act. a) The AO has erred in assuming and assessing the impugned yearas year of search, ignoring that the year of search for the present assessee would be AY 2014-15, as the documents pertaining to present assessee were received on 29.08.2013, as is evident from the assessment order. b) On the facts and under the circumstances of the case the assessment of the impugned year without foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 737 equity shares at the rate of ₹ 1,57,517/- per share as calculated above comes to ₹ 43,11,24,029/-. However, the assessee has taken the sale consideration for 2737 equity shares as ₹ 4,50,00,000/- which is not acceptable. Hence, the difference of the sale consideration which comes to ₹ 38,61,24,029/- is added to the returned income of the assessee. Hence, an addition of ₹ 38,61,24,029/- is made to the returned income of the assessee for the year. 4. Though, validity of assessment was not challenged before the ld. CIT(A), however, in Cross Objection, assessee has raised this issue and has also filed application under Rule 27 of the ITAT Rules. 5. Before us, ld. counsel for the assessee had submitted following dates and sequence of events with reference to assessment order: - DATE Sequence of event Page no of PB 09.11.2011 Search and seizure action occurred in the case of Krrish Group. It is alleged that some documents belonging to assessee were found from Krrish Reality Nirman Pvt Ltd located at 406 Tower, Elegance Tower,Jasola Distt. Centre S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the following three judgments. (i) M/s. Ambawatta Build well Pvt. Ltd., ITA No.2592/Del/2015, (ii) M/s. BNB Investment Properties Ltd., ITA No.504/Del/2015 (iii) M/s. Commitment Mortality Vision Education Society, 3980 3981/Del/2017 7. He further pointed out that in the case of BNB Investment (supra) the same too was in pursuance of same search of Krrish Group and Assessing Officer was also the same, and in that case the Tribunal for the same Assessment Year 2012-13 has held the assessment void ab initio and without jurisdiction. 8. On the other hand, ld. CIT-DR submitted that assessment has been framed u/s.153A(1)(b) which provides that Assessing Officer has to assess or re-assess the total in all the six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted. Nowhere the section contains the words the date of initiation of search which are referred in the 1st proviso to Section 153C. The 1st proviso to Section 153C is only referring to the abatement of existing proceedings as mentioned in the 2nd proviso to Section 153A(1). 1st proviso further clarifies this point by usage of wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transmitting the documents along with his satisfaction note to the AO of the other person, make a note in the file of the searched person that he has done so. But this is for administrative convenience. The failure by the AO of the searched person, after preparing and despatching the satisfaction note and documents to the AO of the other person, to make a noting to that effect in the file of the searched person will not vitiate the proceedings under Section 153C against the other person. (iv) Where the AO of the searched person and the other person is the same, such a satisfaction note qua the other person has to be recorded by the AO of the searched person prior to the initiation of the proceedings against the other person. This is a sine qua non for triggering the proceedings against the other person under Section 153C of the Act. (v) There do not have to be two separate satisfaction notes prepared by the AO of the searched person even where he is also the AO of the other person. In such event, the AO need make only one satisfaction note. That satisfaction note is qua the other person. Further it is sufficient that such satisfaction note is placed in the file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner: Sub-section (1) of section 153C of the Income-tax Act, 1961 provides that the assessment or reassessment of the income of the other person would be in accordance with the provisions of section 153A. The first proviso to sub section (1) of section 153C further states that, in case of such other person, the reference to the date of initiation of search in the second proviso to section 153A(l) shall be construed as reference to 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 . In terms of section 153A(l)(b) of the Act the Assessing Officer shall assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted. The second proviso to sub-section (1) of section 153A of the Act states that assessment or reassessment relating to any assessment year falling within the period of six assessment years referred to in the said sub-section pending on the date of initiation of the search under section 132, would abate. In CIT v. RRJ Securities Ltd. [2016] 380 ITR 612 (Delhi), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Year 2012-13 in the case of BNB Investment (supra), wherein the Tribunal after referring to the Hon ble Jurisdictional High Court judgment and also catena of other Tribunal decision, finally observed and held as under: It is not in dispute that search was conducted on Krrish Group of cases on 09.11.2011. The impounded documents have been received by the A.O. on 29.08.2013. The satisfaction under section 153C have been recorded on 03.10.2013. The A.O. passed the assessment order under section 153B(l)(b) of the I.T. Act, considering the assessment year under appeal i.e., A.Y. 2012-2013 to be the year of search. However, the First Proviso to Section 153C of the I.T. Act provides that the 06 assessment years for which assessments or re-assessments could be made under section 153C of the I.T. Act, would also have to be construed with reference to the date of handing-over of the assets or documents to the A.O. of the assessee. Therefore, the 06 assessment years under section 153C of I.T. Act in the case of assessee would be A.Y. 2008-2009 to 2013-2014. The A.O, therefore, shall have to pass the assessment order under section 153C of the I.T. Act. However, A.O. has not issued any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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