2019 (2) TMI 1828 - AT - Income Tax

Reopening of assessment u/s 147 or assessment u/s 153A - Validity of Reassessment on the basis of incriminating material found in search of third party - Provisions of s. 153C applicability which exclude the application of section147 and 148 - HELD THAT - In the instant case, undisputedly, originally assessment proceedings were initiated against the present assessee u/s 153C read with section 153A of the Act which was completed vide order dated 30.12.2011 but the same were annulled by ld. CIT (A) vide order dated 28.08.2012 on the ground that proper course in this case was to initiate proceedings u/s 147 of the Act and make assessment accordingly. The said assessment u/s 153C read with section 153A was completed on the basis of some seized material/document LP-103 A-1 pages 30, which is a memorandum of understanding alleged to have been entered into between the assessees and M/s. R.B. Enterprises. When provisions contained u/s 153C are applicable in this case to initiate assessment proceedings on the basis of seized material seized in case of some third party, notice issued u/s 148 of the Act and subsequent assessment framed u/s 147 of the Act is void ab initio and as such, assessment framed u/s 147/143(3) of the Act is liable to be quashed. Following the mandate of section 153C and orders passed by the coordinate Bench of the Tribunal in cases of Rajat Shubra Chatterji vs. ACIT 2016 (7) TMI 258 - ITAT DELHI and ITO vs. Arun Kumar Kapoor 2012 (6) TMI 403 - ITAT AMRITSAR , assessment framed in this case u/s 147/143 (3) of the Act on the basis of incriminating material unearthed in case of a third party is not sustainable, hence ordered to be quashed without entering into the merits of the case. - Decided in favour of assessee.

Issues Involved:
1. Legality and jurisdiction of notice issued under Section 148 and assessment order under Section 143(3) read with Section 147.
2. Errors in dismissing the appeal and upholding the assessment order.
3. Incorrect assessment of income.
4. Incorrect addition of long-term capital gains.
5. Lack of proper and reasonable opportunity given to the assessee.
6. Incorrect addition based on alleged undisclosed sale consideration.
7. Non-accrual and non-receipt of alleged sale consideration.
8. Unjust and unlawful additions based on surmises and conjectures.
9. Violation of principles of natural justice.
10. Incorrect and excessive interest charged under Sections 234A, 234B, and 234C.

Issue-wise Detailed Analysis:

1. Legality and Jurisdiction of Notice and Assessment Order:
The appellants challenged the legality of the notice issued under Section 148 and the assessment order passed under Section 143(3) read with Section 147, asserting they were "illegal, bad in law & without jurisdiction." The Tribunal noted that the proceedings were initiated based on a loose paper seized during a search at a third party's premises, which indicated a higher sale consideration than declared. The Tribunal held that the correct procedure should have been under Section 153C, which specifically excludes the application of Sections 147 and 148. Thus, the assessment framed under Section 147 was deemed void ab initio and quashed.

2. Errors in Dismissing the Appeal and Upholding the Assessment Order:
The Tribunal found that the CIT (Appeals) erred in dismissing the appeal and upholding the assessment order. The Tribunal emphasized that the assessment should have been initiated under Section 153C due to the involvement of incriminating material from a third party, rendering the proceedings under Section 147 invalid.

3. Incorrect Assessment of Income:
The appellants contended that their income was wrongly assessed at significantly higher amounts than declared. The Tribunal acknowledged that the assessment was based on the alleged higher sale consideration found in the seized document, which was not corroborated by other evidence. Since the assessment under Section 147 was invalid, the income assessment was also deemed incorrect.

4. Incorrect Addition of Long-Term Capital Gains:
The appellants argued that the addition of long-term capital gains was incorrect and upheld wrongly by the CIT (Appeals). The Tribunal noted that the addition was based on the alleged higher sale consideration, which was not substantiated. Consequently, the addition of long-term capital gains was invalidated along with the assessment order.

5. Lack of Proper and Reasonable Opportunity:
The appellants claimed that the assessment order was passed without giving them proper and reasonable opportunity. The Tribunal did not specifically address this issue separately but implied that the entire assessment process was flawed due to the incorrect application of Sections 147 and 148 instead of Section 153C.

6. Incorrect Addition Based on Alleged Undisclosed Sale Consideration:
The Tribunal found that the addition based on the alleged undisclosed sale consideration was incorrect. The seized document indicating a higher sale consideration was not sufficient evidence to justify the addition, especially when the correct procedural route under Section 153C was not followed.

7. Non-Accrual and Non-Receipt of Alleged Sale Consideration:
The appellants argued that the alleged sale consideration was neither accrued nor received by them. The Tribunal noted that the assessment was based on an uncorroborated document and thus invalidated the addition.

8. Unjust and Unlawful Additions Based on Surmises and Conjectures:
The appellants contended that the additions were unjust, unlawful, and based on surmises and conjectures. The Tribunal agreed, emphasizing that the assessment was not based on solid evidence and was procedurally flawed.

9. Violation of Principles of Natural Justice:
The appellants claimed that the principles of natural justice were violated as their explanations and the material available on record were not properly considered. The Tribunal implied that the incorrect procedural approach under Sections 147 and 148 contributed to this violation.

10. Incorrect and Excessive Interest Charged:
The appellants argued that the interest charged under Sections 234A, 234B, and 234C was incorrect and excessive. The Tribunal did not address this issue separately but implied that since the assessment itself was invalid, the interest charges based on it were also incorrect.

Conclusion:
The Tribunal quashed the assessment framed under Section 147/143(3) due to the improper initiation of proceedings based on incriminating material found in a third party's search, which should have been dealt with under Section 153C. Consequently, the other grounds of appeal became infructuous, and the appeals were allowed. The order was pronounced on February 28, 2019.

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