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TMI Blog2010 (1) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the assessee - IT. (SS) A. Nos. 133 to 135/Ind/2008 - - - Dated:- 27-1-2010 - ORDER PER BENCH This bunch of 34 appeals belong to the same assessee group and involve common issues. These appeals were heard together and these are being disposed of through this consolidated order for the sake of convenience. 2. First, we shall take up appeals in I.T.A.Nos. 133 to l35/Ind/2008 and cross objection Nos. 91 to 93/Ind/2008. In these cross objections, the common issue involved is as under;- "On the facts and in the circumstances of the case, the Ld. CIT(A) was not correct in holding that assessment proceedings were validly initiated and further holding that the assessment order was not illegal and invalid. 3. The Learned counsel at the very beginning submitted that in all the cross objections, this identical issue was involved. Similarly, in all the Revenue's appeals, the issue of suppressed undisclosed sale consideration was involved. 4. The facts, in brief, are that search u/s 132(1) and survey operation u/s 133A were carried out on 16.9.2005. Certain documents related to assessee firm were found during the course of said search, hence, notice u/s 153C read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order passed without issuing a valid notice u/s 143(2) was an illegal order, and, therefore, a nullity. He further contended that the Ld. CIT(A) also admitted that there was some irregularity in issuing notice u/s 143(2), however, he treated such irregularity as a curable one, which was not a correct position in law, hence, the order of the Ld. CIT(A) was not correct in this regard. He further contended that the provisions of section 292BB were brought on statute with effect from 1.4.2008 and were of prospective nature, hence, the same could not also be of any help to the cause of Revenue. 6. The Ld. Departmental Representative, first of all, pointed out the approach of the assessee in adopting the dilly delaying tactics. Thereafter, he contended that notice issued u/s 143(2) on 31.8.2007, was valid notice and referred to page 91 of the paper book. The Bench, on reading the contents of said notice, required the Department to clarify on the aspect whether the assessee had filed any return of income prior to issue of such notice as in para 1 of the said notice, the A.O, had staled that there were certain points in connection with the return of income submitted by you for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2007 and notice u/s 143(2) was issued before that date, hence, assessment proceedings were not valid. He further contended that Department had several options for enforcing the assessee to file the return before the lime limitation for passing the assessment and also had powers within law to make a best judgment assessment u/s 114 on the basis of material available on record and, therefore, the action of the assessee in filing return in October, 2007, could not result into an adverse inference against the assesses. He further contended that, in this case, the return had been filed nearly one and a half months before the time barring period and not on the last date for passing assessment order. Hence, the relevant the contentions of the Id. CIT DR had to be rejected. 8. The Id. CIT DR, at this stage, submitted that matter could be heard on merits as well. Accordingly, he took up the issue of deletion of addition of Rs. 32,73,930/- made by the Assessing Officer on account of undisclosed sale proceeds. The Ld. CIT DR, thereafter narrated the facts and look us through the assessment order as well as seized documents to support the order of the A.O. 9. The Learned counsel, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then such letter filed by the assessee has got no legal consequence, especially when the assessee had filed separate return, though subsequently, which has been acted upon by the Assessing Officer. Accordingly, we reject this contention of the Revenue that such letter should be treated as deemed return. Before deciding the core issue involved in this ground, we state that the Revenue Authorities have been given ample powers to compel the assessee to file the returns and in case the assessee does not comply with the notices issued by the Assessing Officer, in this regard, then penal provision exists, which can be invoked to penalize the assessee. The assessee can also be made liable to pay interest for the period of failure. Apart from that Assessing Authorities can make an assessment u/s 144 read with section 142(1). Hence, we do not find any merit in the contention of the Revenue that the assessee by not filing the return in accordance with the notice issued by the Assessing Officer can cause prejudice to the interests of the revenue. In this regard, it is further noteworthy that the A.O. issued notice u/s 153A read with section, 153C on 22.3.2006 and, thereafter, till 31.8.2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to filing of return, is non-est in law. In this regard, we are further of the view that provisions of section 143(2), not only a case of procedural provision but these also give jurisdiction to the A.O. to compute the total income in a particular manner and, thus, not an empty formality. Therefore, failure to comply with such provisions cannot be taken lightly and the action of the A.O. cannot be justified, merely because no prejudice has been caused to the assessee as held by the Ld. C1T(A). We also find that provisions of section 292BB, are of prospective nature, particularly having regard to the proviso thereto, hence, do not come to the rescue of the Revenue. On the contrary, in our view, the very enactment of this provision makes it clear that legislature does not treat such nature and scope of section 143 merely as a formality and that is why the assessee has been given an opportunity even u/s 292BB to raise such plea before the completion of assessment. 14. It is also noteworthy that prior to such new procedure of assessment in search cases, the undisclosed income found as a consequence of search had to be assessed in accordance with the provisions of sections 158BC/15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of section 143(2), in the manner as prescribed by law, is necessary. 16. Now, we shall dispose of ground no. l of Revenue's appeal in I.T.A. No. 133/Ind/2008, in respect of which facts and contentions of both the parties have already been narrated herein before, 17. We have considered the submissions made by both the sides, material on recoid and the orders of the authorities below. 18. It is noted that in the course of search, certain documents were found as regard to the construction of certain commercial/residential projects. The A.O. from the nothings made therein inferred that the assessee was indulged in receiving on money, which was not disclosed in the books of account. However, from the perusal of such seized documents and the assessment order, it is evident that the A.O, has reached to this conclusion on his own without making necessary enquiries in regard to actual consideration of similar properties of other builders nor he has made any inquiry from the buyers of such properties. It is further noted that the A.O. has not given total effect to the seized documents by adding only 25 % of the quantum of undisclosed sales consideration arrived by him and no basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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