2016 (6) TMI 51 - AT - Income Tax

Assessment u/s 144 or 153C - nature of assessment - Held that - Material belonging to the assessee, which was seized in the search proceedings of Dhingra Group of cases was handed over to the AO of the assessee on the date on which satisfaction note was recorded by the AO of the searched person i.e. 5th July, 2010 and accordingly the six preceding assessment years from the assessment year relevant to the previous year in which the seized material was handed over to the AO of the assessee would be assessment year 2005-06 to 2010-11. We, accordingly, hold that the relevant assessments which could be reassessed as per section 153C r.w.s. 153A(1) in the case of the assessee would be from AYs 2005-6 to 2010-11, thus the assessment completed under section 144 of the Act for the year under consideration i.e AY 2009-10, is illegal and invalid as same should have been completed under section 153C of the Act. Since we have already held the entire proceedings under section 144 of the Act as illegal, we do not propose to adjudicate other grounds of the assessee. - Decided in favour of assessee

Issues Involved:
1. Legality of the assessment order under section 144.
2. Time-barred notice under section 143(2).
3. Admission of additional evidence.
4. Rejection of book results by CIT(A).
5. Sustaining additions as unexplained investment/expenditure.
6. Alleged cash payment as unexplained/unaccounted investment.
7. Jurisdiction under section 153C.

Issue-wise Detailed Analysis:

1. Legality of the Assessment Order under Section 144:
The assessee contended that the assessment order passed by the Assessing Officer (AO) under section 144 was illegal, bad in law, and violated principles of natural justice. The Tribunal found that the assessment should have been completed under section 153C and not section 144, as the proceedings were initiated based on documents seized during a search on a third party. Consequently, the assessment under section 144 was held illegal and invalid.

2. Time-barred Notice under Section 143(2):
The assessee argued that the notice issued under section 143(2) was time-barred and not served correctly, making the assessment order illegal. The Tribunal admitted the additional ground challenging the jurisdiction under section 144/143(3) and found that the assessment should have been under section 153C, thus invalidating the notice under section 143(2).

3. Admission of Additional Evidence:
The assessee claimed that the CIT(A) erred in not admitting additional evidence such as Cash Flow Statement, Ledger, Cash Book, Bank Book, etc. The Tribunal did not specifically address this issue after holding the entire proceedings under section 144 as illegal.

4. Rejection of Book Results by CIT(A):
The CIT(A) held that the audited books and transactions through the bank were artificial and sham, yet relied on these books for calculating/confirming an addition. The Tribunal did not delve into this issue further after declaring the assessment under section 144 invalid.

5. Sustaining Additions as Unexplained Investment/Expenditure:
The assessee challenged the addition of ?43,684/- as unexplained investment/expenditure. The Tribunal, having quashed the entire proceedings under section 144, did not adjudicate this specific ground.

6. Alleged Cash Payment as Unexplained/Unaccounted Investment:
The CIT(A) concluded that the alleged cash payment of ?80,000/- was unexplained/unaccounted. The Tribunal did not address this issue separately after invalidating the assessment under section 144.

7. Jurisdiction under Section 153C:
The Tribunal emphasized that the AO should have completed the assessment under section 153C, considering the documents seized during the search on a third party. The Tribunal referenced multiple cases, including Sh. Jasjeet Singh and Aakash Arogya Mandir Private Limited, affirming that the six assessment years for reassessment under section 153C should be from the assessment year in which the satisfaction note was recorded. Consequently, the assessment for AY 2009-10 under section 144 was held illegal and invalid.

Separate Judgments Delivered:
The Tribunal delivered separate judgments for the cross appeals of the assessee and the Revenue, consolidating the issues due to their identical nature. The appeals of the assessee were allowed, and those of the Revenue were dismissed, primarily due to the invalidity of the assessment under section 144 and the non-maintainability of Revenue's appeal based on the CBDT circular regarding tax effect limits.

Summary:
The Tribunal quashed the assessment orders under section 144 for being illegal and invalid, as the correct procedure under section 153C was not followed. The Tribunal admitted the additional grounds of appeal and referenced relevant case laws to support its decision. The appeals filed by the assessee were allowed, while those by the Revenue were dismissed due to the invalidity of the assessments and non-maintainability based on tax effect limits.

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