TMI Blog2022 (9) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional High Court decision in the case of A.R. Safiulla (supra), we uphold the order of CIT(A) quashing the assessment framed u/s.153A of the Act by the CIT(A). Hence, this issue of the Revenue appeal is dismissed. - ITA No. 56/Chny/2022, CO No. 9/Chny/2022 in ITA No. 56/Chny/2022, ITA No. 57/Chny/2022, CO No. 10/Chny/2022 in ITA No. 57/Chny/2022 and ITA No. 58/Chny/2022, CO No. 11/Chny/2022 in ITA No. 58/Chny/2022 - - - Dated:- 3-8-2022 - SHRI MAHAVIR SINGH , VICE PRESIDENT AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER Appellant by : Shri M. Rajan , CIT Respondent by : Shri Y. Sridhar , FCA ORDER Per Mahavir Singh, Vice President These three appeals of Revenue and three cross objections by different assessee's are arising out of three different orders of Commissioner of Income Tax (Appeals)-18, Chennai in Appeal No. 155, 157 310/19-20/CIT(A)-18 all even dated 29.11.2021. Assessments were framed by the ACIT, Central Circle-1(3) u/s. 153A r.w.s.143(3) of the Income-tax Act, 1961 (herein after referred to as 'the Act') for all the three assessee's, for the AY 2008-09, vide three different orders and all of even date 27.12.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or part thereof relates to such year or years. 2.3. The Ld. CIT(A) ought to seen from the Explanatory Notes, that the intention of the amendment is only to reopen those four years preceding the six years already provided in section 153A . 2.4. The Ld. CIT(A) failed to note that going by the Circular; where income escaping assessment in the form of an asset exceeding Rs. 50 lakh is found, notice u/s. 153A can be issued for 6 years (prior to the assessment year relevant to search year) and 4 years prior to that and in effect, a total of 11 years will be covered by this amendment viz., (i) Assessment year relevant to the financial year in which search was conducted - covered by issue of notice u/s. 143(2) and not covered by section 153A, (ii) Six years immediately preceding the asst. year relevant to search year. (iii) Four years preceding the six years already covered by 153A. 2.5. The Ld. CIT(A) ought to have appreciated that the intention of the amendment specified in the Explanatory Notes may also be seen from the fact that the departmental portal, ITBA, allows issue of notice u/s. 153A in the manner described in the Explanatory Notes (Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The search was conducted on 05.10.2017 and hence the relevant assessment year in which search was conducted is A.Y. 2018-19. Counting backwards, we have calculated 10 years as below: Year Assessment Year 1 2018-19 2 2017-18 3 2016-17 4 2015-16 5 2014-15 6 2013-14 7 2012-13 8 2011-12 9 2010-11 10 2009-10 3.1. The Assessing Officer stated that the assessment framed u/s. 153A r.w.s. 143(3) with regard to this assessment year 2008-09 is well within the ambit of the provisions and he rejected the objections of the assessee by noting in the assessment order as under: Another objection raised by the assessee is the year of search being 2017-18, notice u/s. 153A can be issued only up to AY 2009-10 and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as binding force on the undersigned as per the provisions of Article 227 of the Constitution. In the instant case, the search was conducted on 05.10.2017 and the assessment year relevant to the previous year in which search is conducted is 2018-19. The tenth assessment year counted from this assessment year 2018-19, is AY 2009-10. Hence, following the analogy of the decision of the Hon'ble High Court (Supra), no notice u/s. 153A could be issued for the AY 2008-09 and accordingly, the ground of the assessee is allowed. 4. Before us, Ld. CIT(DR) Shri M. Rajan, argued on Para 80 of the Explanatory notes to the Finance Act, 2017 and explaining the provisions vide Circular No. 2/2018 dated 15.02.2018, wherein it has stated that in order to protect the interest of revenue in cases where tangible evidences are found during the course of search and the same is represented in this form of undisclosed investment in any asset, the provisions of section 153A of the Act relating to search assessment, has amended, to provide that notice u/s. 153A can be issued for an assessment year or years beyond six assessment year already provided up to the tenth assessment year. He explained with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2013-14 8th year 2012-13 9th year 2011-12 10th year 2010-11 The case on hand pertains to A.Y. 2009-10. It is obviously beyond the ten year outer ceiling limit prescribed by the statute. The terminal point is the tenth year calculated from the end of the assessment year relevant to the previous year in which search is conducted. The long arm of the law can go up to this terminal point and not one day beyond. When the statute is clear and admits of no ambiguity, it has to be strictly construed and there is no scope for looking to the explanatory notes appended to statute or circular issued by the department. 10. In the case on hand, the statute has prescribed one mode of computing the six years and another mode for computing the ten years. Section 153A(1)(b) states that the assessing officer shall assess or reassess the total income of six years immediately preceding the assessment year relevant to the previous year in which search is conducted. Applying this yardstick, the six years would go up to 2013-14. The search assessment year, namely, 2019-20 has to be excluded. This is because, the statute talks of the six years preceding the search assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Shri D. Gunasekaran and ITA No. 58/Chny/2022 in the case of Shri D. Gunasekaran (Legal heir of Ms. D. Amsaveni). Since, we have adjudicated the issue of assumption of jurisdiction by the AO in the case of V. Durai in ITA No. 56/Chny/2022, taking a consistent view we dismiss these two appeals of Revenue also exactly on identical findings. 8. Coming to three cross objections filed by three different assessees in CO No. 9/Chny/2022 in the case of V. Durai, CO No. 10/Chny/2022 in the case of Shri D. Gunasekaran and CO No. 11/Chny/2022 in the case of Shri D. Gunasekaran (Legal heir of Ms. D. Amsaveni), it is noted that these cross objections are time barred by 15 days. Assessee has filed condonation petitions stating the reason which reads as under: 3. I wish to state that my father Mr. V. Durai (PAN: AGXPD8930B) was diagnosed for acute IPWMI with RVMI and complete heart block and is still bed-ridden with paramedical support. In view of this, the entire family issues including income tax matters are being solely managed by me after the demise of my mother Amsaveni in November 2019 [PAN: CMUPA5959E]. 4. In this circumstances, there was a delay of 16 days in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
