2022 (9) TMI 1141 - AT - Income Tax

Assessment u/s 153C r.w.s. 153A OR u/s 144 r.w.s. 143(3) - whether assessment for both the years i.e. A.Y. 2010-11 2011-12 undisputedly being the part of last six assessment years from the date of search were required to be framed under section 153C read with section 153A of the Act and not under section 144 read with section 143(3)? - HELD THAT - 1st and 2nd proviso to section 153C and 153A of the Act make it clear that the AO acquires jurisdiction on the date on which satisfaction note has been recorded, which ought to be date of search, and in this case date of recording satisfaction has come on record as 19.11.2012, then proceedings under section 153C are required to be initiated for the preceding six assessment years i.e. 2006-07 to 2011-12. As on 19.11.2012 the assessment for assessment year 2010-11 was not pending. AO has undisputedly issued the notice under section 142(1) and no notice under section 143(2) of the Act was ever issued, which vitiates the entire assessment proceedings framed under section 144 of the Act, particularly when addition made in these cases is not based on seized material. In case of assessment year 2011-12, the assessment was pending and notice under section 143(2) of the Act was issued on 24.09.2012. Since the assessment abates again notice under section 153C of the Act was required to be issued. The assessment framed in this case by the AO under section 144 of the Act is not sustainable as the same was required to be framed under section 153C read with section 153A of the Act, hence ordered to be quashed without entering into merits of this case. Consequently, appeals filed by the assessee are allowed and appeal filed by the Revenue is hereby dismissed.

Summary

Issues Involved:
1. Validity of assessment under section 144 instead of section 153C read with section 153A.
2. Confirmation of ex-parte order by the CIT(A).
3. Rejection of books of account under section 145(3).
4. Addition of gross profit based on a comparable case.
5. Reduction of gross profit percentage by the CIT(A).
6. Deletion of addition of Rs. 50,00,000 by the CIT(A).

Detailed Analysis:

1. Validity of Assessment under Section 144 Instead of Section 153C Read with Section 153A:
The primary issue was whether the assessments for AY 2010-11 and 2011-12 should have been framed under section 153C read with section 153A due to the search and seizure operation carried out in the case of Reliable Paper (I) Pvt. Ltd. The Tribunal noted that the assessments were initiated based on the search, and the Assessing Officer (AO) recorded satisfaction on 19.11.2012. According to the Tribunal, the assessments for AY 2010-11 and 2011-12 should have been framed under section 153C, as the satisfaction note was recorded on 19.11.2012, covering six assessment years from 2006-07 to 2011-12. The Tribunal quashed the assessments framed under section 144, as they were not based on seized material and were not in compliance with the procedural requirements of section 153C.

2. Confirmation of Ex-parte Order by the CIT(A):
The assessee contended that the CIT(A) erred in confirming the ex-parte order passed by the AO under section 144 without calling for any information from the AO. The Tribunal noted that the AO proceeded with the assessment under section 144 due to non-compliance by the assessee with notices issued under section 142(1). However, since the Tribunal quashed the assessment under section 144, this issue became moot.

3. Rejection of Books of Account under Section 145(3):
The CIT(A) confirmed the rejection of the books of account under section 145(3). The Tribunal did not delve into the merits of this issue as the entire assessment under section 144 was quashed.

4. Addition of Gross Profit Based on a Comparable Case:
The AO made an addition of gross profit at 28% for AY 2010-11 and 7% for AY 2011-12 based on a comparable case, M/s. Shruti Arts Pvt. Ltd. The CIT(A) reduced the gross profit rate from 28% to 25% for AY 2010-11. The Tribunal did not address the merits of this issue due to the quashing of the assessments under section 144.

5. Reduction of Gross Profit Percentage by the CIT(A):
The Revenue challenged the reduction of the gross profit percentage by the CIT(A). The Tribunal did not address this issue on merits as the assessments under section 144 were quashed.

6. Deletion of Addition of Rs. 50,00,000 by the CIT(A):
The CIT(A) deleted an addition of Rs. 50,00,000, which the AO had made on an ad-hoc basis as unexplained cash credit under section 68. The Tribunal did not address this issue on merits due to the quashing of the assessments under section 144.

Conclusion:
The Tribunal concluded that the assessments for AY 2010-11 and 2011-12 should have been framed under section 153C read with section 153A, not under section 144. Consequently, the assessments were quashed, and the appeals filed by the assessee were allowed, while the appeal filed by the Revenue was dismissed. The Tribunal did not enter into the merits of the individual additions and rejections due to the procedural lapse in framing the assessments.