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TMI Blog2015 (11) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... TANT MEMBER SHRI S.S. GODARA, JUDICIAL MEMBER For The Appellant : Shri P.M Mehta with G.M. Thakor, AR For The Respondent : Shri R.I. Patel, CIT/ D.R. PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. This appeal filed by the Assessee is against the order of CIT(A)-IV, Ahmedabad dated 25.11.2011 for A.Y. 2008-09. 2. The relevant facts as culled out from the material on record are as under. 3. Assessee is a partnership firm stated to be engaged in construction business. A search action u/s. 132 of the Act was conducted in the case of Shri Rameshbhai Babulal Shah and group of cases on 03.04.2008 and during the course of search a Lenovo make Laptop was found and seized in which Rameshbhai Shah had maintained books of accounts in respect of 65 entities including that of Assessee. Accordingly, proceedings u/s. 153C were initiated and notice u/s. 153C r.w.s. 153A(a) were issued and in response to which Assessee electronically filed its return of income declaring total income of ₹ 6,93,780/- after claiming brought forward losses of earlier years. Thereafter assessment was framed u/s. 153C r.w.s. 153A vide order dated 30.12.2010 and the total income was determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer to arrive at an ad hoc amount of undisclosed income by applying 25% as the rate of net profit on undisclosed turnover relying on the decision of the Hon'ble ITAT in Vijay Proteins Ltd. v. ACIT (58 ITD 428) even though it related to an entirely different business of crushing oilseeds which was not at all comparable with the appeifant's business; that further, and pertinently, the rate of 25% in that case was not adopted as net profit rate to be applied to turnover outside the books but for making a disallowance out of what had been proved to be bogus purchases of oil cakes from 33 parties; 3.2 In law and in the facts and circumstances of the appellant's case, the learned CIT(A) ought not to have upheld the Assessing Officer's action of estimating a larger amount of undisclosed income of ₹ 35,29,500 than ₹ 15,50,000 disclosed by the appellant especially when at para 5.9 of the Appellate Order, he had himself appreciated the fact that a major portion of the undisclosed income disclosed by ShriRameshbhai B. Shah in his Settlement Petition had come from the income generated by the operations of various partnership firms including the present appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. He further submitted that the issue in the present appeal is squarely covered by the decision of Hon ble ITAT in the case of its group where the issue was identical and on account of the same search and therefore the issue needs to be decided in its favour. 7 Before us, ld. A.R. submitted that the basic condition for issuance of notice u/s. 153C was not satisfied in the case of Assessee and therefore the notice issued was invalid and therefore the assessment framed to be quashed. He submitted that no satisfaction was recorded by the A.O of the persons searched and the so called satisfaction is totally vague and has not specified as to whether any money, bullion, jewellery or other valuable article or thing or books of accounts belonging to the Assessee was seized from Shri Rameshbhai Shah. He further submitted that the notice u/s. 153A r.w.s. 153C dated 29.08.2008 is identically worded as that of group cases which has already been decided by the Tribunal in Assessee s favour and in the group cases the Co-ordinate Bench of Tribunal has held that since the notice issued u/s. 153C was invalid, the assessment orders framed u/s. 153C r.w.s. 153A were also quashed. He placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur income of six assessment years immediately preceding the assessment year relevant to previous year in which the aforesaid search was conducted was made i.e., from A.Ys. 2003-04 to 2008-09 is required to be assessed/re-assessed, in accordance with the provisions of Section 153A r.w.s. 153C of the Act. You are, therefore, required to furnish hour return of income under Section 153C of the Income-tax Act, 1961 for A.Y. 2003-04 being one out of the above six assessment years in respect of which you are assessable under the Income-tax Act, 1961. The return should be filed in the appropriate form as prescribed in Rule 12 of the Income-tax Rules, 1962. It should be duly verified and signed in accordance with the provisions of Section 140 of the Said Act and delivered at my office as mentioned above within forty five days from the service of this notice. Sd/- (ILA PARMAR) Asstt. Commissioner of Income tax, Central Circle-2, Baroda 18. From the above, it is clear no satisfaction is recorded by the Assessing Officer of person searched. The Assessing Officer of assessee did not record any satisfaction prior to issue of notice u/s 153C. The so-called satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer of the present assesses does not get any jurisdiction to issue such notice. Accordingly, notice u/s 153C issued by the Assessing Officer of the person searched lacks jurisdiction which is not curable by virtue of provision of Section 292B. In view of above, we respectfully following the decision of Hon'ble Apex Court in the case of Manish Maheshwari (supra) and decision of Hon'ble jurisdictional High Court in the case of Lalitkumar M. Patel (supra), hold that the notices issued u/s 153C were invalid-accordingly the same are quashed. Consequently, the assessment orders framed u/s 153C r.w.s. 153A are also quashed. Since the assessment order itself has been quashed, the other grounds of the assessee's appeal which is with regard to determination of the income of the assessee needs no adjudication. 8. We find that the satisfaction note in other cases as well as recorded in the case of assessee are verbatim same except the assessment years. A perusal of the satisfaction note would indicate that it is totally vague. It does not disclose what is the material found during the course of search, which belonged to the assessee. There is no reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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