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TMI Blog2024 (7) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... e ACIT/DCIT, Central Circle - 18, New Delhi under Section 147 read with Section 143(3) of the Act for Assessment Years 2016-17 & 2017-18 respectively. 2. Since both the matters relate to the same assessee, these are heard analogously and are being disposed of by this common order. ITA No.3651/Del/2023 for A.Y. 2017-18 : 3. The assessee having a proprietary business in the name of M/s. Vijay Enterprises in retail trading of cable wire, remotes, stabilizers, converters, set top box etc. originally filed its return of income for the Year 2017-18 on 30.10.2017 declaring total income at Rs. 24,63,080/- under the head income from Profit and Gains of Business of Profession (PGBP). 4. The brief facts leading to this case is this that a search a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal data and the name of the assessee being the Prop. of Vijay Enterprises found to have appeared in both ERP database and IVMS data base. The department was of the view that as per ERP, the sales made to the assessee was far less than actual sale made as recorded in IVMS software. On 09.01.2018, a further survey was conducted at M/s. Vijay Enterprises, Shop No.48, Lajpat Rai Market, Delhi wherein fact of making cash purchases from Laxmi Group was admitted by one Shri Vijay Kumar said to the key person of M/s Vijay Enterprises. Anomalies in record to actual sales were found; these figures were out of books and not accounted for. No books of accounts were maintained by Vijay Enterprises. In fact, the fact of sale of stocks by Laxmi Group to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction by the Learned AO is void ab initio also raised before the Learned CIT(A). However, the same was rejected by the Learned CIT(A). 8. In the instant case, the search was conducted on Laxmi Remote India Pvt. Ltd. on 21.08.2017 and the assessment under Section 153C should have been completed by 31.12.2019. During the course of hearing, it was submitted by the Learned AR that the provision of Section 148 to 153 of the Act were amended w.e.f 01.04.2021 by Finance Act, 2021 and simultaneously, the provisions of Section 153A and 153C of the Act relating to search assessment was omitted and made inapplicable w.e.f 01.04.2021 meaning thereby the assessment in relation to the search initiated "before" 31.03.2021 will be governed by prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee on 05.07.2019 for A.Y. 2016-17. Page 15 contains the objection raised by him to the ACIT. Page 16 is the notice issued to the assessee under Section 148 of the Act dated 09.03.2021 for A.Y. 2016- 17. Page 17 contains the notice under Section 142(1) of the Act issued to the assessee dated 30.11.2021 for A.Y. 2016-17. Page 19 contains the final show-cause notice to the assessee dated 14.01.2021 for A.Y. 2016- 17 and page 20 is the return filed by the assessee for A.Y. 2016-17 filed on 23.02.2022. 10. Under these circumstances, it was vehemently argued by the Learned AR that the assessment should have been framed under section 153C of the Act and not under Section 148 of the Act. He has further relied upon the judgement passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial jurisdiction and not the jurisdiction exercised by the Assessing Officer in terms of the statutory provision. It is also a settled principle of law that a legal ground can be raised by the party aggrieved, at any stage even before the Apex Court. 11. We further note that so far as the contentions raised by the assessee that in the case of the brother of the assessee proceedings was initiated under Section 153C of the Act and not under Section 148 of the Act as in the case of the assessee due to the reason that at the very first instance the AO was of the opinion that proceedings should have been initiated under Section 153C of the Act and only upon realizing that the time limit for completion of assessment under Section 153C of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to the ratio laid down by the Hon'ble Apex Court in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. (supra) such reassessment proceeding initiated under Section 148 of the Act impugned before us found to be unacceptable. Thus taking into consideration the entire aspect of the matter such assessment, therefore, not maintainable void ab inito, illegal, arbitrary and, thus, quashed. 14. In the result, appeal of the assessee in ITA No.3651/Del/2023 is allowed. 15. The issue involved in ITA No.3650/Del/2023 for A.Y. 2016-17 is identical to that of the issue already been dealt with by us and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, this appeal preferred by the assessee is also allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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