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TMI Blog2024 (9) TMI 1625X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that order passed by the AO under section 143(3) of the Act is illegal, void and non-est as the same has been passed under section 143(3) of the Act as against the specific provisions under section 153C of the Act. 3. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in confirming the action of the AO despite the fact that the assessment order passed under section 143(3) of the Act is null and void as the same has been passed in violation of CBDT Circular No. 19/2019 requiring mandatory DIN in the body of the assessment order. 4 On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the order passed by the learned AO under Section 143(3) of the Act is bad and liable to be quashed as the same has been framed consequent to a search which itself was unlawful and invalid in the eye of law. 5. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of assessee that the proceedings initiated against the assessee and the assessment framed under section 143(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter case was transferred to the office of DCIT and another notice was served with questionnaire u/s 142(1) of the Act. A search and seizure action were carried out on 06-01-2021 in the case of Hans group with whom the assessee Raja Varshney had entered into unaccounted cash transactions. According to the AO, during the course of search action the mobile of Shri Vaibhav Jain was seized from the office M/s Jainco Ltd G-2 Plot No 5 Sikka Complex Preet Vihar New Delhi. In the whatsapp chats with Thakur an image having details of total sale consideration of Rs 1,54,50,000/- relating to purchase of property at B-132 First Floor Vihar Delhi was found from the mobile phone of Shri Vibhav Jain. The AO was found that property was purchased by the assessee and it was registered at consideration of Rs 4900000/-only and the assessee was involved in cash transaction with regard this property for a consideration of Rs 10550000/-. The AO passed the assessment order u/s 143(3) of the Act determining total income at Rs 20938430/-after making an addition of Rs. 10550000/- towards undisclosed cash investment. 5. Aggrieved with the order, the assessee has filed an appeal before the Ld CIT(A). The Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant for the previous year in which search was conducted will be AY 2018- 20 to 2022-23. He has also submitted that in the present case assessment proceedings for AY 2021-22 should have been framed u/s 153 C of the Act after issuance of notice u/s 153C of the Act. The Ld AR has further submitted that in the present case assessment year i.e. 2021-22, it was wrongly framed u/s 143(3) of the Act by issuing the notice u/s 143(3) of the Act on 30-06-2022 along with notice u/s 153C of the Act for Assessment years 2015-16 to 2021-2022. 9. The Ld DR has submitted that the below authorities have passed the order as per law. He supported the orders of the authorities below. 10. We have the parties and perused the material available on record. 11. Firstly, we take up the additional ground for adjudication which goes to the root of the matter as it challenges the legality of the order u/s.143(3) dated 29-12-2022 of the Act. These additional grounds were not raised before the Ld CIT(A) nor the similar plea was taken before the AO but the additional grounds are purely legal and all the facts of the case are on record, therefore, the same is admitted in view of the decision of the Hon'ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished u/s 139; (b) Assess or reassess the total income or six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the AO shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section) pending on the date of initiation of the search u/s 132 or making of requisition u/s 132A, as the case may be, shall abate." 21. From the above, it is evident that as per clause (b) of subsection (1) of section 153A and second proviso, the AO can be issue notice for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 to 31.03.2006 2006-07 1.4.2004 to 31.03.2005 2005-06 22. The Assessing Officer has issued notice u/s 153C for A.Y. 2004-05 which is clearly barred by limitation. Therefore, issue of notice u/s 153C issued by the Revenue cannot be sustained on both the above counts, ie., it is legally not valid as conditions laid down u/s 153C has not been fulfilled and it is barred by limitation. In view of the above, we quash the notice issued u/s 153C and consequently, the assessment completed in pursuance to such notice, is also quashed. 23. Since we have quashed the assessment order itself, the additions challenged by the assessee by way of other grounds of appeal do not survive, and, therefore, do not require any adjudication. 16. We thus, find that the issue raised in the additional ground has been answered in favour of the assessee, by the Coordinate Delhi Bench of the Tribunal in the case of DSL Properties (supra). 17. So far as decision of Hon'ble Delhi High Court in the case of SSP Aviation Ltd. vs. DCIT (supra) relied upon by the Id. CIT(DR) is concerned, we find that it is not helpful to the revenue as in that case also in para no. 14 of the judgment it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment order itself, the additions questioned by the assessee by way of other grounds of the appeal do not survive and, therefore, do not require any adjudication.
20. In the result, the appeal of the assessee is allowed."
13. From the above discussion the date of recording of the satisfaction will be the deemed date for the possession of the seized documents which is 03-10-2022 and six years would be reckoned from this date. The submission made by Ld AR is tenable that the assessment year relevant for previous year in which search was conducted in the case of the assessee will be AY 2023-24 and six years immediately preceding the assessment year relevant for u/s 153C of the Act will be AY 2018-19 to 2022-23. The assessment for AY 2021-22 should have been carried out by issuing notice u/s 153C of the Act and not u/s 143(2) of the Act. There fore the assessment order dated 29-12-22 passed u/s 143(3) of the Act is bad in law and liable to be quashed and quashed accordingly. The additional grounds filed by the assessee are allowed.
14. In the result, the appeal of assessee is allowed.
Order pronounced in the open court on 26.09.2024. X X X X Extracts X X X X X X X X Extracts X X X X
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