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TMI Blog2025 (1) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... ake of convenience, the grounds as well as the facts narrated in IT(SS)A No.78/Rjt/2023, for assessment Year 2016-17, in case of Chintan Kumar Rameshbhai Patel, have been taken into consideration for deciding the above appeals en masse. 3. The grounds of appeal raised by the assessee as per 'lead case' in IT(SS)A No. 78/Rjt/2023, for assessment year (AY).2016-17, are as follows: "1. That the learned A.O. has grievously erred in law and on facts in passing the assessment order u/s 153C of the Act, after the end of time limit for completion of assessment u/s 153C of the Act, as specified u/s 153B of the Act and hence the assessment order is bad and illegal being barred by limitation. 2. That the learned CIT(Appeals) has grievously erred in law and on facts in rejecting the ground of the assessee that assessment order is time barred as no tax payable is determined as well as no notice of demand u/s 156 of the Act is served to the assessee and hence assessment order is bad and illegal being barred by limitation or otherwise. 3. That the learned CIT(Appeals) has grievously erred in law and on facts in upholding the action of the learned A.O. even in taxing the alleged unexplain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing the appeal before this Hon'ble Bench. Hence, this application of the condonation of delay. 2. The period of limitation for filling the appeal under section 253(3) of the Income Tax Act, 1961 is sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Principal Commissioner or commissioner as the case may be. 3. It is submitted that order of the CIT(A) u/s 250 of that Act dated 03.03.2023, which is the order appealed against is not served on the registered email address namely [email protected] of the assessee and therefore assessee was not aware of the fact that order u/s 250 is passed. Even in the appeal memo form no.35, the email address namely [email protected] is stated for communication. Despite that the said order is served only on the old email address namely [email protected] which is of earlier consultant. (Copy of the screenshot of the portal showing registered email address namely [email protected], copy of the form no.35 and screenshot of the portal showing the service of the said order on an old email address namely [email protected] of earlier consultant ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mail.com' which is of earlier consultant. (Copy of the screenshot of the portal showing registered email address namely [email protected], copy of the form no.35 and screenshot of the portal showing the service of the said order on an old email address namely [email protected] of earlier consultant were filed by the assessee before the Bench.). The Ld. Counsel for the assessee argued that assessee has explained the sufficient cause/reason in the petition for condonation of delay and therefore, in the interest of justice, the delay may be condoned. The Ld. Counsel for the assessee argued that reasons mentioned in the petition for condonation of delay are sufficient to condone the delay, therefore, the minor delay, in all these appeals, may be condoned. 7. On the other hand, Learned Commissioner of Income-tax - Departmental Representative (Ld. CIT-DR) opposed the prayer of the assessee to condone the delay and stated that delay should not be condoned on such flimsy reasons. The assessee, has explained only one reason stating that order passed by the learned CIT(A) was delivered, on the email-id of old tax consultant, who in turn, did not inform the assessee, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Dignesh Patel, a satisfaction note was recorded, considering all the facts of the case. Again, a satisfaction also recorded, in accordance to the provision of the Income Tax Act 1961, by the jurisdictional assessing officer and notice u/s 153C was issued, which were duly served upon the assessee. Copy of the satisfaction note and Seized documents have also supplied to the assessee. Notice u/s 153C of the Act was issued on 18.03.2021, which was duly served upon the assessee through registered e-mail. The return of income was required to be filed within 7 days of the receipt of the notice. In response to the notice u/s 153C of the Act, assessee has filed his return of income, on 30.03.2021, showing therein income of Rs. 3,21,950/-. Further detailed questionnaire was issued on 25.03.2021, along with notices issued u/s 142(1) of the Act. A notice u/s 143(2) of the Act was issued on 12.04.2021, which was served upon the assessee. 11. In response to the above notice/questionnaire, the assessee has submitted his submissions, before the assessing officer. During the assessment proceedings, the assessing officer noticed that the assessee is a 10% partner in a Limited Liability Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 69C or section 69D, the income-tax payable shall be the aggregate of- (a) the amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent, and (b) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a). (2) Notwithstanding anything contained in this Act, no deduction in respect of any expenditure or allowance shall be allowed to the assessee under any provision of this Act in computing his income referred to in clause (a) of sub-section (1)." Therefore, please show cause on or before 12.04.2021 as to why the sum of Rs. 35,367/- should not be charged to tax at a special rate as per the provisions of section 115BBE of the Act as reproduced hereinabove." 12. In response to the above, said show-cause notice, the assessee furnished following reply: 1.0 Return of income in response to notice u/s 153C of the Income Tax Act, 1961 ['the Act') for A.Y.2011-12 to 2017-18 have been filed on 30.03.2021. In the Return of Income, I have considered an income of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gital data was extracted from the I-phone 6S of Shri Dignesh Patel. On analysis of the said digital data, it was noticed that the partners on behalf of firm M/s. V. R. Infosystem LLP, had incurred cash expenses of Rs. 3,60,240/-. When the transaction mentioned in the seized digital data were matched with the books of account of the said firm, it was noticed that expense of Rs. 3,53,670/- for A.Y.2016-17 and Rs. 10,55,095/- for A.Y.2017-18 were not recorded in the books of the account of M/s. V. R. Infosystem LLP. It is also noticed that Shri Dignesh Rajeshbhia Patel & the assessee Shri Chintan R. Patel were the partner of 35% & 10% respectively in the firm M/s. V. R. Infosystem LLP. Accordingly, notice u/s.153C of the Act was issued to the assessee, on 18.03.2021 and the assessee had filed return of income in response to the notice u/s 153C of the Act on 30.03.2021 showing total income of Rs. 3,21,950/- including voluntary disclosed additional income of Rs. 35,367/- (10% of total unexplained investment of Rs. 3,53,670/-). The AO had also noticed that the CIT(A) had confirmed the addition of Rs. 1,23,784/- (35% of Rs. 3,53,670/-) for A.Y.2016-17 and Rs. 3,69,283/- (35% of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the source of the said unexplained investment in cash was filed. Therefore, it is a clear-cut case of concealment of income in the form of additional income and the same should be treated as unexplained Investment u/s.69B of the Act in place of income from other source. 7.3.1 Reliance is placed on the decision of the Hon'ble Supreme Court of India in the case of MAK Data Pvt. Ltd. vs. Commissioner of Income tax [2014] 1 SCC 674 wherein Hon'ble court observed that "the AO, in our view, shall not be carried away by the plea of the assessee like 'voluntary disclosure', 'buy peace', 'avoid litigation', 'amicable settlement etc., to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income." 7.4 It is necessary to discuss about the section 115BBE of the Income Tax Act. Section 115BBE has been introduced in the statute by the Finance Act, 2012 with effect from 1.4.2013. In other words, the provisions of Section 115BBE are applicable with effect from assessment year 2013-14. Section 115BBE is a Section contained in Chapter X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 10. The ground of appeal no. 7 is general in nature, hence dismissed. 11. Additional ground of appeal-: During the course of appellate proceedings, the assessee has taken additional ground of appeal, which is reproduced as under: - "The assessment order is time barred as no tax payable is determined by the AO within the time prescribed under section 153A of the Act. As the tax payable on assessed income is not determined and served within prescribed assessment became time barred on this ground. The CIT(A) prayed to consider the assessment time- barred on this ground." 11.1 In this regard, the assessee has stated that the said grounds could not be included in original grounds of appeal as the assessee was not aware about the complicated legal provisions and he come know about correct position only recently. 11.2 In this regard, it is observed that the claim of the assessee is not correct because on perusal of column of 2(b) of the form 35 [prescribed form for filing appeal before the CIT(A)], it is clearly seen that the assessee has clearly written the date of order is 24.04.2021 and similarly, on perusal of column of 2(c) of the form 35, the assessee has clearly w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court in the case of National Thermal Power Company Ltd., vs. CIT (1998) 229 ITR 382 (SC), we admit the additional grounds raised by the assessee in all these four appeals. Arguments of Learned Counsel for the assessee, on additional ground. 19. Shri Fenil H. Mehta, Learned Counsel for the assessee, at the outset, argued before us, that assessing officer has not passed the order u/s 153C of the Act, in case of all these assessees, within the time limit, prescribed under section 153B the Act. The Ld. Counsel for the assessee took us through sub- section (1) of section 153B of the Act and the proviso thereof and contended that as per the proviso, 9 months period is available and as per clause (a) and clause(b), 21 months period is also available, therefore, whichever period is later, should be considered, for passing the assessment order. The ld Counsel stated that assessment order was passed by the assessing officer, under section 153C read with section 143(3) of the Act, on 21.04.2021. The assessment order ought have been passed on 31.12.2020. Therefore, number of days of delay in passing the assessment order comes at 111 days, hence, assessment order, its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed; (b) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A, within a period of twenty-one months from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed: Provided that in case of other person referred to in section 153C, the period of limitation for making the assessment or reassessment shall be the period as referred to in clause (a) or clause (b) of this sub-section or nine months from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other person, whichever is later: ........................" 23. Therefore, the first proviso to sub-section (1) of section 153B of the Act, clearly states that assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order as per the conditions mentioned in section 153B of the Act, etc. have been stated, which is reproduced below for ready reference: 25. We have examined the facts stated in the above chart and noted that in all the appeals, the similar and identical issues were involved, and in case of every appeal, noted above, the assessment order is time barred, therefore, the assessment order, passed by the assessing officer under section 153C read with section 143(3) of the Act, needs to be quashed. 26. Article 265 of the Constitution of India lays down that, "No tax shall be levied or collected except by authority of law". The Hon'ble Supreme Court of India has held that the this provision under Article 265 of the Constitution of India is applicable not only for levy but also for the collection of taxes and the expression "assessment" within its compass covers both the aspects carried out by the executive functionary. Chottabhai Vs. Union of India 1962 SCR Supl.2 1006. Therefore, it is required that whole of the process of taxation must follow the procedures which are valid under the law and must adhere to law i.e. substantive one as well as procedural one too. Therefore, in other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (Nazir Ahmed v. King Emperor AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma [2004] 2 SCC 759 and Indian Bank's Association v. Devkala Consultancy Service AIR 2004 SC 2615). Similar view has been expressed in the Orissa Rural Housing Development Corpn. Ltd, 343 ITR 316(Orissa). We note that Ld. CIT-DR for the Revenue relied on the judgement of Hon'ble Supreme Court in suo motu writ petition in MA No. 21 of 2022 (SC- - Suo Motu Writ Petition-COVID period) and stated that in assessee's case assessment order was framed by the assessing officer, beyond the time limit prescribed under section 153B of the Act, because Covid-19 period was involved, where everybody was working with safety, therefore assessment order was framed late, due to COVID-19 pandemic, hence as per the judgment of Hon'ble Supreme Court (supra), there should not be any delay in framing the assessment order. 28. We do not agree with the above, stand taken by the Ld. DR for the revenue, as the judgement of Hon'ble Supreme Court in suo motu writ petition in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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