TMI Blog2022 (6) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 27-4-2022 - SHRI AMARJIT SINGH, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER Assessee by : Ms. Arati Aggarwal Shri Mahavir Jain Department by : Shri T. Shankar ORDER PER S. RIFAUR RAHMAN ( AM ) 1. These appeals are filed by the assessee against different orders of the Learned Commissioner of Income Tax (Appeals)-21, Mumbai [hereinafter in short Ld. CIT(A) ] dated 28.06.2019 for the A.Ys. 2010-11 and 2011-12. 2. Since the issues raised in both these appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed off by this consolidated order. We are taking Appeal in ITA. No. 6429/MUM/2019 for Assessment Year 2010-11 as a lead case. 3. The assessee has e-filed the return of income on 28.09.2010 declaring total income of ` NIL after claiming current year loss of ₹ 64,986/- the return was processed u/s. 143(1) of the Income-tax Act, 1961 (in short Act ) on 14.04.2011. Subsequently information was received from ACIT-CC-2(4), Ahmadabad that during the course of search on 15.10.2013 at the premises of M/s. Dharmadev Infrastructure Ltd., a total of 36 bena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271E without appreciating the fact that no addition has been made with respect to the reasons recorded for reopening of assessment, as such, the reassessment order is bad in law and liable to be quashed. 6. Your appellant craves leave to add to, amend or N.A alter or delete any of the above grounds of appeal. 5. Assessee also filed additional ground of appeal which is as under:- That on the facts and circumstances of the case and in law, the department has erred in reopening the assessment u/s. 147 of the Act without appreciating the fact that information was received from the office of the ACII, Central Circle - 2(4) in connection with the search conducted at the premises of M/s. Dharmadev Infrastructure Ltd., accordingly, notice u/s. 153C ought to have been issued, as such, the reopening is void-ab-initio, without jurisdiction and liable to be quashed. 6. At the time of hearing, Ld. AR submitted that as under:- Whether AO right in invoking 148 instead of 153C: At the outset we would like to draw your attention to the relevant portion of the Reason to believe issued by the Ld. A.O. in AY 10-11 viz. DCIT-13(3)(1) which is reproduced as below: Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause i.e. 'Notwithstanding anything contained in Section 139. Section 147, section 148, section 151 and section 153....', whenever any books of accounts or documents seized are handed over to the assessing officer of the persons other than the searched person, the AO of the other person can issue notice only under section 153C. In the appellant's case, since search was conducted on M/s. Dharamdev Infrastructure and the alleged incriminating material found there is the basis of reopening, the exact section which applies on your appellant is section 153C of the Act and not section 147 of the Act. Accordingly, the Ld. AO ought to have issued the notice u/s. 153C not u/s. 148 of the Act. Hence, reopening is bad in law, without jurisdiction and liable to be quashed. In support of our contention, we rely on the following decisions of co ordinate benches which clearly lays down that the nonobstante clause in section 153C bars the A.O. to re-open such matters u/s. 148 and the facts of these cases are similar to that of the appellants case. Bachan Singh and Ors. v. Dy. Commr. of Income Tax, Central Circle-1 and Ors. ITA Nos. 16, 15 and 87 (Asr)/2015 14. ....... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m such a business has not been returned by the assessee. As we do not have the liberty to examine these reasons on the basis of any other material or fact, other than the facts set out in the reasons so recorded, it is not open to us to deal with the question as to whether the assessee could be said to be engaged in any business; all that is to be examined is whether the fact of the deposits, per se, in the bank account of the assessee could be basis of holding the view that the income has escaped assessment, lite answer, in our humble understanding, is in negative. The Assessing Officer has opined that an income of Rs. 10,24,100 has escaped assessment of income because the assessee has Rs. 10,24,100 in his bank account but then such an opinion proceeds on the fallacious assumption that the bank deposits constitute undisclosed income, and overlooks the fact that the sources of deposit need not necessarily be income of the assessee. Of course, it may be desirable, from the point of view of revenue authorities, to examine the matter in detail, but then reassessment proceedings cannot he resorted to only to examine the facts of a case, no matter how desirable that he, unless there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause that specifically excludes the applicability of Section 147/148. Where, pursuant to a search conducted under Section 132, the Assessing Officer has in his possession books of account or other documents or evidence, which reveal that income, represented in the form of asset, or any part of such income generally, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate over the relevant assessment years then the Assessing Officer may either assess/reassess for each of the preceding 6 Assessment Years immediately preceding the Assessment Year, in which, search has been conducted and for the relevant Assessment Year/years. Section 153C shall apply to cases where, pursuant to a search or requisition under Section 132 132A, the assessing Officer is satisfied that any money bullion jewellery or other valuable article or thing seized or requisitioned, belongs to or any books of accounts or documents pertains or pertain to a person other than the person referred to in Section 153A, then the material must be handed over the Assessing Officer having jurisdiction over such other person and the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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