TMI Blog2016 (6) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 153C, sections 147/148 stand ousted; and that since the procedure provided u/s 153C had not been followed by the AO, the assessment had become invalid and the ld. CIT(A) was fully justified in quashing the reassessment order. As it is evidence from the Appraisal Report in the case of Sh. Neeraj Puri, as noted hereinabove, that the sale deed of the assessee was found only during the search in the case of Sh. Neeraj Puri. That being so, the provisions of section 153C of the Act are directly applicable. To reiterate, the Hon ble Supreme Court, in the case of Manish Maheshwari [ 2007 (2) TMI 148 - SUPREME COURT] has laid down that if the procedure in section 158BD is not followed, block assessment proceedings would be illegal. It is irrefutable that the provisions of section 153C of the Act are in pari materia with those of section 158BD. Therefore, as taken note of, if the procedure laid down in section 153C is not followed and recourse is not taken to section 158BD, the same would be bad in law. Arun Kumar Kapoor [ 2012 (6) TMI 403 - ITAT AMRITSAR] is also to the same effect. In accordance therewith, we hold that the proceedings u/s 148 of the Act, as rightly contended o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 7. That while sustaining the capital gain stated above the CIT(A) has wrongly restricted the deduction claimed by the assessee u/s 54B amounting to Rs.2,15,62,656/- to Rs.1,01,45,000/- on the grounds that the value of land purchased is to be taken as per the registration deed and not as per the agreement to sell under which the total consideration paid for the purchase of land amounts to Rs.2,15,62,656/-. 8. That the ld. CIT(A) failed to appreciate the facts as per additional evidence relied upon the assessee. He clearly over-looked the withdrawals made by the assessee from his bank account and correlate the same with the agreement to sell for determination of the cost of land purchased by the assessee. 3. As per Ground no.5, though the assessment was required to be framed u/s 153C of the Act, it has wrongly been framed u/s 143(3) of the Act. In this regard, the brief facts of the case, as per the record, are that the AO observed that the jurisdiction in this matter initially lay with the ITO Ward-IV(2), Jalandhar. Vide order dated 13.06.2013 passed under section 127 of the Act, it was transferred to the ACIT, Central Circle-1, Jalandhar. The completed assessment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital Gain. The AO has commented in the remand report that the assessee had claimed to have invested an amount of Rs.2,15,62,656/- on the purchase of agricultural land out of the sale consideration received by him but the perusal of registration deed shows that the amount paid is only Rs.1,01,45,000/-. The AR with reference to this fact made submission that amount mentioned in the registration deed should be ignored and the amount mentioned in the agreement to sell should be taken as amount invested in the purchase of agricultural land. The AR placed reliance on the judgment of Hon ble Madhya Pradesh High Court in the case of CIT vs. Ajit Singh Khajanchi (2007) 211 CTR (MP) 403. I have perused judgment relied upon by the AR and it is quite apparent that facts of the case do not support the interpretation of AR in this regard. The issue in the said case was that whether the assessee should be owner of property for the purposes of section 54 or not and whether registration was in evidence of purchase or there could be other evidences of purchases as well. This is not the issue under consideration at this point of time as agreement to sell without registration has been accepted as evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Rs.20 lacs as on 1.4.1981 for working out the indexation. In this context, it is submitted as under: That the value adopted by assessee as on 1.4.1981 for working out indexation has been Rs.20 lacs which gives a rate per marla @ Rs.2923/- as on 1.4.1981 (Rs.20,00,000/684). To justify the land rate as on 01.04.1981 @ Rs.2923/- per marla kindly find enclosed the certificate of lmbardar of the Village which ingter lia states that the land rate per acre of land at Vill. Samsatpur was Rs.4,50,000/- to Rs.5,00,000/- per acre. If we take the value at Rs.5,00,000/- per acre the per marla value comes to Rs. 3125/- (Rs.5,00,000/160). He has further mentioned in the certificate the following facts: i) That the land falls on the main G.T. Road, National Highway No. 1, i.e. Jalandhar Pathankot Road. ii) That location is 12th mile stone from Jalandhar. iii) Kishan Garh Chowk is 1 KM from the present location. iv) The main Hoshiarpur Road passes from the back and the distance from the place is 1 KM app. And v) The D.A.V. University has been set up because of locational advantage. That to support the above version of the certificate your honours at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e came into the knowledge of the department in search proceeding of Mr. Neeraj Puri group. After the search a detailed appraisal report was prepared by the ADI and he recorded his satisfaction that the assessee has not disclosed these sale deeds and therefore on page 14 of the paper book in para 1.7 of the appraisal report the ADI has given a finding that The following table gives the particulars of various assessees of this sub group, who may be covered u/s 153C or u/s 147/148 of the Income Tax Act, 1961 upon the satisfaction of the AO. In the meanwhile the ADI referred the matter to the concerned AO i.e. Ramji Dass ITO IV(2) Range IV, Jalandhar and the ITO recorded the reasons for issuing a notice u/s 148 copy of the reasons recorded is available on page no.152 of the paper book. After recording the reasons a notice u/1 48 was issued on 24.04.2012 and served on the assessee on 27.04.2012 as is clear from the assessment order. Thereafter the complete appraisal report was made by the ADI and perusal to the appraisal report the jurisdiction of case of the assessee was transferred by an order u/s 127 dated 13.06.2013 available on page 109 to 115 of the paper book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Puri Prop. Of Bhagwati Agriculture Farms Jalandhar during the course of search. Notice u/s 153C of the I.T.Act, 1961 were issued. In view of the same as a matter of consistency the same AO could not have resorted to two different sections one u/s 153C which is a correct action in the case of other assesses and the other u/s 147/148 against the assessee. (A) The bench of ITAT must follow the judgment of co-ordinate Bench delivered earlier. In case of disagreement the matter must be referred to the Larger Bench. i) ACIT vs. Victory Aqua Farm Ltd. (20130 280 CTR (SC) 32 ii) S.S. Roop Lal Anothers vs. Lt. Governor AIR 2000 (SC) 594 (b) Consistent view taken in favour of assessee on questions court will not take different view without very convincing reasons. iii) CIT vs. Excel Industries Ltd. Mafat Lal (P) Ltd.(2013) 358 ITR (SC) 295. In view of the same, it is prayed that the assessment framed by the AO u/s 143(3) r.w.s. 144 in pursuance of notice issued u/s 148 may kindly be quashed. 6. Thus, the grievance of the assessee is that the search having been conducted on the premises of Sh.Neeraj Puri and not on those of the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and section 153, where the Assessing Officer is satisfied that .(a) any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs; or (b) any books of account or documents or assets seized or requisitioned pertaining or pertains to or any information contained therein, relates to a person other than the person referred to in section 153A, then the books of account, or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that the Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for the relevant assessment year or years referred to in sub-section (1) of section 153A. 9. In Arun Kumar Kapoor (supra), a search was conducted in the case of T . During the course of that search, certain incriminating documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove) to reopen the completed assessment of the assessee do not make mention of either the search conducted on the premises of Sh. Neeraj Puri, nor of the appraisal report in that case. The reason recorded is that the information was in the possession of the AO of the assessee. Now, obviously, it cannot be disputed that this information came to the AO from the Investigation Wing of the Department. In this regard, the appraisal report in the case of Sh. Neeraj Puri becomes all relevant. Though production thereof as additional evidence has been opposed by the Department, we find that to decide the issue at hand, at this juncture, it may be observed that the issue as to whether the assessment framed u/s 148 of the Act, ought, in fact, to have been framed, rather, under section 153C, is a pure question of law. Though, the Department says that this issue does not emanate from the impugned order, the factual matrix of the case, as discussed in the foregoing paragraphs, makes it amply clear that it is an issue directly connected with the assessment of the assessee. Therefore, we are allowing this issue to be raised for the first time. Coming back to the Appraisal Report, a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Arun Kumar Kapoor (supra) is also to the same effect. In accordance therewith, we hold that the proceedings u/s 148 of the Act, as rightly contended on behalf of the assessee, are not sustainable, in view of the presence of section 153C, which obliterate to the operation of the provisions of sections 147/148 of the Act, in given circumstances, which exist in the case of the present assessee also. 15. It may be noted that though vide order dated 17.10.2014, the relevant portion whereof has been reproduced in the preceding portion of this order, the ld. CIT(A) allowed the appeal of the assessee, vide order dated 10.11.2014, the said earlier appeal order was rectified by passing the following rectification order: The AO is directed to substitute above figure of Capital Gain at Rs.72,85,000/- instead of Rs.3,14,16,437/-. 15. In view of the above, finding the grievance of the assessee to be justified, the same is accepted. The assessment framed u/s 148 of the Act is quashed. 16. In the result, the appeal is allowed. 17. Now, we take up the appeal of the assessee in ITA No.15(Asr)/2015, for the assessment year 2009-10, in the case of Sh. Gurnam Singh. The facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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