TMI Blog2022 (9) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in these cases is not based on seized material. In case of assessment year 2011-12, the assessment was pending and notice under section 143(2) of the Act was issued on 24.09.2012. Since the assessment abates again notice under section 153C of the Act was required to be issued. The assessment framed in this case by the AO under section 144 of the Act is not sustainable as the same was required to be framed under section 153C read with section 153A of the Act, hence ordered to be quashed without entering into merits of this case. Consequently, appeals filed by the assessee are allowed and appeal filed by the Revenue is hereby dismissed. - ITA No.7682/M/2019 And ITA No.7680/M/2019 And ITA No.7603/M/2019 - - - Dated:- 22-9-2022 - Shri Kuldip Singh, Judicial Member And Shri S. Rifaur Rahaman, Accountant Member For the Assessee : Shri Hari S. Raheja, A.R. For the Revenue : Shri Hoshang B. Irani, D.R. ORDER PER : KULDIP SINGH, JUDICIAL MEMBER: For the sake of brevity aforesaid interconnected appeals bearing common question of law and facts are being taken up for disposal by way of composite order. 2. The appellant, M/s. Global Paper Impex Ltd. (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax (Appeal) erred in not allowing the additional grounds of appeal on the ground that the assessment order is passed on the normal provisions of the Act, based on notice issued under section 143(2) without accepting the fact that notice u/s 153C was issued in the case of the Appellant and based on the date of initiation of search on the basis of satisfaction note, the year falls within the period of six years from die date of initiation of search and order should have been passed under section 153C r.w.s. 153A and not under section 144/143(3) of the Income Tax Act, 1961 on the ground or grounds as stated in the Appellate Order or otherwise. 2. On the facts and circumstances of the case and in Law the Ld. Commissioner of Income Tax (Appeals) (referred as CIT(A) ) erred in confirming the ex-parte order passed by the Assessing Officer (AO) by invoking the provision of section 144 without calling any information from the AO on the ground or grounds as contained in the appellate order or otherwise. 3. On the facts and circumstances of the case and in law the Ld. CIT (A) erred in confirming the addition of G.P @7 % based on order in some other case, and thereby confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment under section 144 of the Act. 4. AO proceeded to assess the income of the assessee on estimation basis by taking sales turnover of the assessee of the previous year and extrapolating the sales turnover by 10% of the previous years which amounts to Rs.9,57,30,405/-. AO by considering the extrapolating the turnover by extra 10% which comes to Rs.1,05,30,34,458/- proceeded to compute the income of the assessee at Rs.29,48,49,648/- being 28% of the total turnover i.e. Rs.1,05,30,34,458/- as discussed in the preceding para. AO also made adhoc addition of Rs.55,00,000/- under section 68 as unexplained cash credit on his failure to submit the bank statements after repeated requests and thereby framed the assessment at the total income of Rs.29,98,49,650/- under section 144 of the Act. 5. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has partly allowed the same. Feeling aggrieved assessee as well as Revenue have come up before the Tribunal by way of filing present cross appeals for A.Y. 2010-11. 6. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.03.2018. 9. This issue was decided by the Ld. CIT(A) against the assessee on the sole ground that the entire argument of the assessee is on the assumed date of satisfaction note under section 153C of the Act i.e. 19.11.2012. 10. However, on the other hand, the Ld. D.R. for the Revenue relied upon the order passed by the Ld. CIT(A). 11. On the basis of grounds raised by the assessee, argument addressed by the Ld. Counsels for the parties to the aforesaid appeals the sole legal issue to be decided in this case is: as to whether assessment for both the years i.e. A.Y. 2010-11 2011-12 undisputedly being the part of last six assessment years from the date of search were required to be framed under section 153C read with section 153A of the Act and not under section 144 read with section 143(3) of the Act.? 12. When we examine aforesaid issue in the light of the fact that undisputedly assessment proceedings in case of the assessee for A.Y. 2010-11 2011-12 were initiated on the basis of search and seizure operation carried out in case of Reliable Paper (I) Pvt. Ltd. under section 132 of the Act during period 23.02.2010 and 20.04.2010 wherein incriminating docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessment in this case was to be framed under section 153C of the Act for assessment years 2006-07 to 2011-12 (including A.Y. 2010-11 2011-12 the years under consideration) 15. Co-ordinate Bench of the Tribunal in case of Shri Meer Hassan vs. ITO ors. in ITA No.1571/Del./2015 ors. vide order dated 28.02.2019 decided the identical issue by holding that provisions contained under section 153C of the Act are applicable to initiate the assessment proceedings on the basis of seized material, seized in case of some third person, initiation of assessment proceedings under section 147 of the Act is void abinitio by returning following findings: 12. In the backdrop of the aforesaid facts and circumstances of the case, the first question for determination in this case is :- as to whether on the basis of alleged incriminating material seized during search at the premises of M/s. R.B. Enterprises on 04.03.2009, AO as well as CIT (A) have erred in initiating the proceedings u/s 147 of the Act. 13. The ld. AR for the assessee challenging the impugned order contended that when the AO has specifically relied upon material/ documents LP-103 A-1 pages 30 seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made 19[and for the relevant assessment year or years as referred to in sub-section (1) of section 153A] except in cases where any assessment or reassessment has abated. (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated for the preceding six assessment years i.e. 2006-07 to 2011-12. As on 19.11.2012 the assessment for assessment year 2010-11 was not pending. The AO has undisputedly issued the notice under section 142(1) and no notice under section 143(2) of the Act was ever issued, which vitiates the entire assessment proceedings framed under section 144 of the Act, particularly when addition made in these cases is not based on seized material. 17. At the same time, in case of assessment year 2011-12, the assessment was pending and notice under section 143(2) of the Act was issued on 24.09.2012. Since the assessment abates again notice under section 153C of the Act was required to be issued. 18. In view of what has been discussed above, we are of the considered view that the assessment framed in this case by the AO under section 144 of the Act is not sustainable as the same was required to be framed under section 153C read with section 153A of the Act, hence ordered to be quashed without entering into merits of this case. Consequently, appeals filed by the assessee are allowed and appeal filed by the Revenue is hereby dismissed. Order pronounced in the open court on 22.09.2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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