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TMI Blog2018 (2) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciating either the facts and in the circumstances of the case or the provisions of law. He has further erred in passing an order which is bad in law and on facts. 2) On the facts and the circumstances of the case, the Ld. CIT(A) erred in confirming the action of the AO in disallowing the administrative and other expenses to Rs. 55,03,963/-. 3) While doing so, on the facts and circumstances of the case the ld. CIT(A) has erred in assuming that since there was no revenue recognition in r/o Agra Project, hence the administrative expenses incurred for the purpose of business of the assessee company was not allowable. 4) The Ld. CIT(A) has failed to appreciate the difference between setup of business and commencement of business as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on the facts and circumstances of the case, the order of assessment dated 31.12.2010 passed by learned Assessing Officer u/s 143(3) of the Income Tax Act, 1961 is illegal and non maintainable as the same had to be framed u/s 153C of the Act and not u/s 143(3) of the Act. Hence, the same deserves to be quashed as such." 2. During the course of hearing, the learned counsel for the assessee contended that the additional ground raised is a legal ground and all facts necessary to dispose off the said grounds are also on record and, therefore, the same be admitted in terms of judgment of Apex Court in the case of National Thermal Power Corporation vs. CIT reported in 299 ITR 383 [SC]. It was also submitted that identical ground was also rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner of Income Tax, Central Circle 18, New Delhi for assessment years 2003-04 to 2008-09. It was also stated that on 22.10.2010, notice was issued under section 143(2) of the Act and pursuant thereto, an order of assessment dated 31.12.2010 has been framed under section 143(3) of the Act. It was contended that this order of assessment is without jurisdiction as an order of assessment ought to have been framed under section 153C of the Act. Reliance was placed on the following judgments: (i) 380 ITR 612 (Delhi) CIT vs. RRJ Securities Ltd. (ii) ITA No. 1436/DEL/2012 (Del) Jasjit Singh vs. ACIT (iii) ITA No. 337/2015 (Delhi) CIT vs. Jasjit Singh 5. The ld. DR further supported the action of the Assessing Officer. 6. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fit case for issuing notice u/s 153C of the Income Tax Act, 1961 as the seized documents mentioned above belong to M/s Ridgeview Developers Pvt. Ltd. being a person other than a person in whose case the search has been initiated." 7. It is apparent from the above that since the date of satisfaction note is 4.10.2010, the year of search would be Assessment year 2011-12 and as such, based on the said note, six assessment years for framing assessment u/s 153C of the Act would be assessment year 2005-06 to assessment year 2010-11. In the instant case, assessment for Assessment year 2009-10 has been framed by an order dated 31.12.2010 u/s 143(3) of the Act; instead of section 153C of the Act. Accordingly, the Assessing Officer was incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year in question is not valid and not maintainable. As per him, the date of search in the case of the present assessee would be the date i.e. 16/06/2009 when documents belonging to the assessee (found during the course of search) were handed over and jurisdiction for framing the assessment was transferred to the AO having jurisdiction for the assessment on the assessee. Taking into account the date 16/06/2009 as date of search in the case of the assessee, the contention of the ld. AR remained that the search year in the case of assessee would be A.Y. 2010-11 and six previous assessment years would be 2009-10 to 2004-05. In other words, the regular assessment u/s 143(3) of the Act in the present case should have been fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch in the second proviso to Section 153A has to be construed as the date on which the AO receives the documents or assets from the AO of the searched person. Thus, by virtue of second proviso to Section 153A of the Act as it applies to proceedings under Section 153C of the Act, the assessment/reassessment pending on the date on which the assets/documents are received by the AO would abate. In respect of such assessments which have abated, the AO would have the jurisdiction to proceed and make an assessment." 11. Therefore, since facts of the case are pari materia with the aforesaid binding judgments of jurisdictional High Court, it is held that the Assessing Officer ought to have framed the assessment for assessment year 2011-12 under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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