9911796707
TMI Blog2013 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.01.2008.Thereafter, the proceedings u/s. 153C read with section 153A were initiated and after considering the material available on record and submissions of the assessee, the AO made additions on account of income from house property on determining the Annual letting value of the property at 7% of the investments and made the additions of Rs. 77,433/-. It may be noted here that in assessment year 2004-05, the AO also made addition of Rs. 5,00,000/- on account of unexplained gift, which has been deleted by the ld. CIT(A) vide order dated 05.03.2012. Nothing is brought to our notice if department have challenged this finding of the ld. CIT(A) in any appeal. 4. The assessee challenged initiation and validity of proceedings u/s. 153C and addition on merits before the ld. CIT(A).The written submission of the assessee is incorporated in the appellate order in which the assessee briefly explained that no action u/s. 132 of the IT Act has been taken in the case of assessee. The assessee's source of income is mainly income, which is assessed under the head 'income from other sources'. Search was conducted and Panchnama was drawn in the name of her husband, father-in-law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the orders of the authorities below. 6. We have considered the rival submissions and the material available on record and find that the issue is squarely covered in favour of the assessee by order of ITAT, Agra Bench in the case of ACIT Circle I, Gwalior vs. M/s. Global Estate in ITA No. 144 to 149/2011, assessment years 2003-04 to 2008-09 dated 30.11.2012, in which on the identical issue, departmental appeal has been dismissed. The findings in para 9 to 9.7 of this order are reproduced as under : "9. We have considered the rival submissions and the material available on record. Section 153A, 153B and 153C of the IT Act provides :- "Assessment in case of search or requisition. 153A. Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall-- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (a) or clause (b) of this sub- section or one year from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having Provided further that in the case where the last of the authorisations for search under section 132 or for requisition under section 132A was executed during the financial year commencing on the 1st day of April, 2004 or any subsequent financial year,-- (i) the provisions of clause (a) or clause (b) of this sub-section shall have effect as if for the words "two years" the words "twenty- one months" had been substituted; (ii) the period of limitation for making the assessment or re- assessment in case of other person referred to in section 153C, shall be the period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed or nine months from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accounts audited under sub- section (2A) of section 142 and ending on the day on which the assessee is required to furnish a report of such audit under that sub- section; or (iii) the time taken in reopening the whole or any part of the proceeding or in giving an opportunity to the assessee of being re- heard under the proviso to section 129; or (iv) in a case where an application made before the Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the Commissioner under sub-section (2) of that section, 55[or] [(v) the period commencing from the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of section 245Q and ending with the date on which the order rejecting the application is received by the Commissioner under sub- section (3) of section 245R, or (vi) the period commencing from the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of section 245Q and ending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year-- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub- section (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A."] 9.1 Hon'ble Supreme Court in the case of Manish Maheshwari vs. ACIT and others, 289 ITR 341 considering the earlier provisions of section 158BD of the IT Act (analogous to sec.153C of IT Act) held that - "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h conducted against a third person it was found that the assessee had utilized undisclosed income for making contributions to certain unregistered chits conducted by the said person. Thereafter, a survey was conducted in the business premises of the assessee which indicated certain real estate transactions carried on by the assessee and profits derived thereon had not been disclosed to the Department. The Assessing Officer included under section 158BB the undisclosed income found during the survey made under section 133A. The Commissioner (Appeals) excluded that portion which had been included based on the material found during the survey on the premises that in respect of block assessment under section 158BB material collected during the survey under section 133A could not be taken into consideration. This was confirmed by the Tribunal. On appeal contending that the material gathered in the course of survey under section 133A could also be regarded as a material for the purpose of block assessment under section 158BB: Held accordingly, dismissing the appeal, that the Commissioner (Appeals) and the Tribunal having decided the issue in accordance with the statutory provisions, it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts or documents seized or requisitions belongs or belong to a person other than the person referred to in sec. 153A. 3. The books accounts or documents or assets seized or requisitioned shall be handed over to the AO having jurisdiction over such other person. 4. The AO has proceeded u/s 153C against such other person. 9.5 As is noted above, there are certain distinguished features in earlier provisions of law in Chapter XIV-B contained u/s sec. 158BA, 158BB and 158BC as compared to sec. 153A but the provisions contained u/s 158BD are more or less similar to provisions contained in sec. 153C of the IT Act except "undisclosed income" which is mentioned in sec. 158BD, however, in sec. 153C, it is mentioned any money, bullion, jwellery or other valuable articles or things or books accounts or documents seized or requisitions. The conditions precedent for invoking provisions u/s 158BD as is held by Hon'ble Supreme Court in the case of Manish Maheshwari (supra) are therefore same as are provided u/s 153C of the IT Act. It is admitted fact that no search warrant was executed in the case of the present assessee u/s 132(1) of the IT Act, therefore, provisions of sec. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for quashing of proceedings u/s 153C of the IT Act. No material is produced before us to prove that the AO in the case of person searched was satisfied that any money, bullion, jwellery or other valuable articles or things or books accounts or documents seized or requisitioned belongs to or belong to a person other than the person referred to in sec. 153A. No material is produced before us to show if any satisfaction was recorded by the AO in that case that the seized material belongs to any person other than the person with respect to whom search was made u/s 132 of the Act. Ld. DR did not produce any material before us to show if any such satisfaction as required u/s 153C was recorded by the AO in the case of person searched. No material is produced in reference to above requirement. No material is also produced before us to show that books accounts or documents or assets seized had been handed over to the AO having jurisdiction over such other person. In the absence of any adequate material produced by ld. DR, we find the contention of ld. counsel for assessee was justified that in this case, the AO has not recorded any satisfaction that any seized document or material belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or things or books of account or documents seized or requisition belongs to or belonging to a person other than the person referred to in section 153A. No material is produced before us to show if any satisfaction was recorded by the AO in that case that the seized material belongs to any person other than the person with respect to whom search was made u/s. 132 of the IT Act. The ld. DR was directed to file copy of the satisfaction note recorded by the AO for initiating the proceedings u/s. 153C of the IT Act. However, the ld. DR did not produce any satisfaction note u/s. 153C or any material before us to show if any such satisfaction as required u/s. 153C was recorded by the AO in the case of person searched. No material is produced in reference to the above requirement. No material is also produced before us to show that the books of account or documents or assets seized had been handed over to the AO having jurisdiction over such other person. In the absence of any material produced before us, we find the contention of the ld. counsel for the assessee was justified that in this case the AO has not recorded any satisfaction that any seized 17 ITA No. 369, 339, 340 & 341/Agra/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
