9911796707
TMI Blog2012 (8) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... d " "1) On the facts and circumstances of the case and in law the assessment completed under S. 143(3) is bad in law and without jurisdiction since assessment year being the year of search under S.132 of the Act the assessment ought to have been completed under S.153-A rws. 153-B of the Act. It be quashed." 3. On the admission of the additional ground, we have heard the parties. We find that the additional ground raised by the assessee is purely a legal ground and same can be decided on the basis of the record available before us. We, therefore, admit the ground respectively following the legal principles laid down in the case of National Thermal Power Co., 229 ITR 383(SC). 4. We first decide the additional ground taken by the assessee. The main thrust of the argument of the Ld Counsel is that the A.O. has passed the assessment order for the A.Y. 2005-06 u/s. 143(3) of the Act when the A.O was legally bound to pass the assessment order u/s. 153A/153B of the Act. He submits that there was a search and seizure action against the assessee u/s. 132 of the Act on 2.2.2005 and the assessment is framed in consequence of search and seizure operation and hence, the A.O. was legally bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dore) 2) M/s. Bahubali Neminath Muttin Vs. ACIT, Belgaum & vice versa, ITA No. 161 & 165(PNJ)/2010 dated 8.7.2011 3. Dr. Mansukh Kanjibhai Shah Vs. ACIT, ITA No. 1358/PN/2007 dt. 13.8.2011 5. We have also heard the Ld CIT D.R. who extensively argued the issue by interpreting provision of Sec. 153A and 153B of the Act. 6. In the case of Sushil Kumar Jain (Supra), there was a search and seizure operation u/s 132(1) of the Act against the assessee on 25/9/2003. The identical issue came for consideration before the Co- ordinate Bench in the said case whether as per the provisions of Sec. 153A or 153C in which 6 years preceding the assessment year relevant to the previous year in which search has been conducted is covered and therefore, for the A.Y. 2004-05, the assessment could be made only in accordance with the provisions of Sec. 143(3)/144 or as per the provisions of Sec. 153A. The Tribunal held as under : "13. Thus, there can be three situations for making an assessment under section 153A, i.e, firstly, the reassessment of all completed assessments falling under the period of six assessment years, secondly, there could be pending assessment or reassessment of any assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-obstante clause overriding the provision of section 139, 147, 148, 149, 150, 151 and 153. It is also noted that return under section 153A has to be in prescribed form. The other important effect of provision of section 153A(1) is that it gives a jurisdiction to the Assessing Officer to initiate assessment proceedings by issuing notice under this section. This section also creates an outer limit of the six back assessment years for which an assessment / reassessment could be done under this section in case of search/requisition made under section 132/132A. However, in our view, there cannot be a mandatory jurisdiction for six back years, even for those entities, which were not in existence in all such six years and which is also so because of the fact that jurisdiction under section 153A is for assessment or reassessment of total income of each year falling in such period. Thus, scope of section 153A, if viewed in this manner, cannot be interpreted to mean that assessment in respect of previous year in which search was conducted or requisition was made, cannot be made in accordance with provisions of section 153A read with section 153B or 153C as contended by the assessee. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is "Time limit for completion of assessment under section 153A". It is a settled * principle that heading of a particular section also indicates about nature and scope of such provision and if viewed in this perspective, then, it would again be clear that assessment of the previous year, in which search took place, is required to be completed as per the provisions of section 153A read with section 153B of the Act. In this regard, memorandum explaining the Finance Bill,* 2000 as reported in 260 ITR (St.) 219 -221, also mentions that provisions of sections 153A, 153B and 153C were inserted to provide for assessment in the case of search or m:aking requisition. 17. The learned CIT DR has also contended that as against the- literal construction, the construction which resulted into atttainment of the objects of the, Act has to be preferred. In this regard, we are of the view that the settled position of law is that if there is no ambiguity then, literal construction should be given effect as such although which may result into hardship. 'Howwever, in the context of present dispute, in our humble opinion, the provisions of law do not appear so dear or unambiguous as is evident fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be any no doubt that the assessment in case of a searched person tor the year of search has to be completed under section 153A read with section 153B of the Act . 19. In view of the above discussion, we hold that the ld. CIT(A) was not correct in law in holding that assessment for the previous year in which search took place or requisition was made had to be completed under the normal provisions of the Act." 7. The above decision has been followed by the ITAT Panjim Bench in the case of M/s. Bahubali Neminath Muttin Vs. ACIT (Supra) by the ITAT "B" Bench, Pune in the case of M/s. Giridhan & Sons (Supra). In the case of Dr. Mansukh Kanjibhai Shah Vs. ACIT (Supra), the Tribunal has examined the applicability of Sec. 153A by holding that before evoking the provisions of Sec. 153A of the Act, it will be necessary to comply with the provisions containing in Sec. 132(1) of the Act. The Tribunal has further held that considering Sec. 153A particularly read with sub-clause (b), it is clear that not only initiation of the search is mandatory but conduct of the search is also material. 8. We find that the contention of the Ld. Counsel is well supported by the decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of cash inward and cash outward were recorded on those papers. The said transactions were for the period from 1.5.2004 to 12.7.2004 with separate page for each day. Those transactions were not recorded in the books of account of the assessee. The details of the transactions as noted by the A.O in the assessment order are as under : S/No. Date Amount Description 1 12-07-2004 200,000 Kadri 2 07-07-2004 185,000 Anil Patil 3 07-07-2004 80,000 Anil Patil 4 13-07-2004 600,000 Kadri 5 13-07-2004 100,000 Gurudeo Patil 6 13-07-2004 90,000 Gurudeo Patil 7 15-07-2004 240,000 Patil 8 10-07-2004 50,000 Hitesh Bhai 9 17-07-2004 60,000 Kadri 10 17-07-2004 700,000 Kadri 11 21-07-2004 1,000,000 Kadri Canvasing 12 21-07-2004 67,000 Kadri Canvasing 13 24-07-2004 800,000 Kadri Canvasing 14 30-06-2004 200,000 Vikas 15 03-07-2004 82,950 Hitesh Bhai Total .. 4,454,950 12. The A.O. sought explanation of the assessee in respect of those transactions. The assessee contended that as regards the cash inward transactions mentioned on page Nos. 7 to 19 of the inventory No. 36, the various persons mentioned there have merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me day. The A.O., therefore, rejected the explanation that there was no reason to send the collection through the third parties/persons. The A.O has also observed that many of the sale transactions are shown on the name of the same persons. In sum and substance, the A.O. pointed out inconsistency in the statement of the assessee. The A.O also held that as per the computerized cash book maintained by the assessee in respect of M/s. Anwar Oils and M/s. Al- Habib Enterprises as on 17-7-2004, it was noticed that on that day, the receipt side was less than the payment side. The A.O has also observed that there was no reason for the assessee to bring cash from residence to MIDC, Gokul Shirgaon and again bring the same cash all the way from Gokul Shirgaon by hands of some third party. The A.O. treated the entire cash transactions found in the seized material was treated as recovery from un-recorded loans/advances from the above mentioned parties by the assessee for the A.Y. 2005-06. 15. So far as transactions of cash outward are concerned, the A.O. referred to page Nos. 17 to 19 of inventory No. 36. Those recorded transactions were also not reflected in the regular books of account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash found recorded in the seized loose papers and made the addition of Rs. 44,54,960/- by holding that to be fair and objective as the two transactions of cash inward and cash outward for same period, it is considered that source of loan given of Rs. 37,97,500/- as recovery of cash loans of Rs. 44,54,960/-. The assessee carried the issue before the Ld CIT(A), but without success as the addition was confirmed. 18. We have heard the rival submissions of the parties and perused the record. The Ld Counsel pleaded for giving the benefit of the peak. We find that the Ld CIT(A) has considered the plea of the assessee on the issue of considering the addition on the peak. As per the statement of the assessee, the cash inwards were related to the sales but the cash outwards were in respect of the money given by the assessee's customers for deposing the same in their Bank Account. As per the own explanation of the assessee, the outward entries of the cash which have the different nature of the transactions. We find that the A.O issued summons to the persons and recorded their statements but the person whose names were appearing denied having either brought cash from MIDC office of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
