2015 (1) TMI 780 - AT - Income Tax

Maintainability of the assessment order passed by the AO u/s 143(3) instead of Section 153C of the Act - Held that - As per clause (b) of subsection (1) of section 153A and second proviso, the AO can be issue notice for assessment or reassessment of total six assessment years immediately preceding the assessment year relevant to previous year in which search is conducted. As per proviso to section 153C, the date of search is to be substituted by the date of receiving the books of account or documents or assets seized by the AO having jurisdiction over such other person. For initiating valid jurisdiction u/s 153C, even if the AO of the person searched and the AO of such other person is the same, he has to first record the satisfaction in the file of the person searched and thereafter, such note alongwith the seized document/books of account is to be placed in the file of such other person. The date on which this exercise is done would be considered as the date of receiving the books of account or document by the AO having jurisdiction over such other person. Also as per section 153(1), the AO can issue the notice for the previous year in which search is conducted (for the purpose of Section 153C the document is handed over) and six assessment years preceding such assessment year. Therefore, issue of notice u/s 153C issued by the Revenue cannot be sustained on both the above counts, i.e., 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 issue du/s 153C and consequently, the assessment completed in pursuance to such notice, is also quashed. - Decided in favour of assessee.

Summary

Issues Involved:
1. Maintainability of the assessment order under Section 143(3) vs. Section 153C.
2. Validity of the assessment order due to procedural lapses.
3. Sustaining of addition on account of undisclosed cash receipt.
4. Addition on account of interest paid for loan taken to buy shares.

Issue-Wise Detailed Analysis:

1. Maintainability of the Assessment Order under Section 143(3) vs. Section 153C:
The core legal issue raised was the validity of the assessment order passed under Section 143(3) instead of Section 153C of the Income Tax Act, 1961. The facts revealed that a search and seizure operation under Section 132 was conducted on 19.02.2009, and an MOU related to the sale of share capital was seized. The assessee declared income from Long Term Capital Gain during post-search proceedings. The assessment was framed under Section 143(3) at an income of Rs. 14,10,20,905, which was contested on the grounds that it should have been framed under Section 153C.

The Tribunal found that the facts of the present case were identical to those in the case of Shri Jasjit Singh, where it was held that the date of receiving the seized documents is considered the date of search for the purposes of Section 153C. Consequently, the assessment should have been framed under Section 153C read with Section 143(3), not under Section 143(3) alone. The Tribunal held the assessment framed under Section 143(3) to be invalid and set it aside.

2. Validity of the Assessment Order Due to Procedural Lapses:
The assessee challenged the assessment order on several procedural grounds: not being signed by the AO, bias, lack of recorded satisfaction, denial of cross-examination, reliance on defective instruments, and statements of third parties not provided to the assessee, and improper enquiry. However, since the Tribunal set aside the entire assessment order on the primary ground of it being framed under the wrong section, these procedural lapses were not adjudicated further.

3. Sustaining of Addition on Account of Undisclosed Cash Receipt:
The assessee contested the addition of Rs. 478,03,345 on account of undisclosed cash receipts. However, due to the setting aside of the assessment order under the primary issue, this specific addition was not separately adjudicated.

4. Addition on Account of Interest Paid for Loan Taken to Buy Shares:
The assessee also contested the addition of Rs. 61,56,251 on account of interest paid for a loan taken to buy shares. Similar to the issue of undisclosed cash receipts, this addition was not separately adjudicated because the entire assessment order was set aside.

Conclusion:
The Tribunal concluded that the assessment order should have been framed under Section 153C read with Section 143(3) and not under Section 143(3) alone. Consequently, the assessment order was set aside, and the appeal of the assessee was allowed, while the department's appeal was dismissed. This rendered the need to adjudicate other issues raised by both parties unnecessary.