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TMI Blog2018 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... he letter dated 08/10/2006 and the affidavit executed on 01/01/2008 which were scanned by us and found that there was no indication of any financial transaction leading to understatement of income except the mention of purchase of property on 05/02/2004 which is relevant to the Assessment Year 2004-05 and are not relevant to the assessment years under consideration. Therefore, the said documents cannot be held to be the incriminating material for the purpose of initiating the proceedings under section 153C of the Act. Earlier the assessments in this case are completed, since, the time limit for issue of notice u/s 143(2) got expired before the date of search, the AO did not make any addition in the assessment orders on the basis of the seized material. - Decided in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... e and also argued that no addition can be made u/s 153C without the incriminating material. Ld. AR submitted before the ld. CIT(A) that since the time limit for issuance of notice u/sec. 143(2) got expired, by the time, search was conducted. The assessment needs to be treated as completed assessment and the notice issued under section 153C without the incriminating material is invalid and required to be quashed and the addition made in the orders to be deleted. The ld. CIT(A) not being convinced with the argument of the assessee placing heavy reliance on the two loose sheets found during the course of search which were annexed to the appellate order, upheld the validity of issuance of notice. 6. Aggrieved by the order of the Assessing Officer, the assessee is in appeal before the Tribunal and again challenged the validity of notice under section 153C of the Act and the additions made without incriminating material. 7. Ld. counsel for the assessee reiterated the submissions made before the ld. CIT(A). 8. Per contra, ld. Departmental Representative relied on the order of the ld. CIT(A). 9. We have heard both the sides, perused the material available on record. 10. A search under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05/1. Dated 24-6-2006 and government memo. . . . . . . . . . . . . . . dated 4-7-2006 copies enclosed). In the above circumstances you to exempt the levy or 10% open place charges and permission given to reconstruction/redevelopment the building as per the revised plansubmitted to your on date _____2006. (b) Affidavit We independently and jointly purchased sites at Jawahar Streer, Kakinada relating to Door No. 27-4-7. The adjacent sites purchased by Sri Rajesh Kumar, W/o. Shantilal, Smt. Lalitha, W/o. Bhawarlal and Smt. VasanthiBai, W/o. babulaiji, Sri Vikram Kumar Jam, Sb. Shantilal and sujitkumar Sb. Babulal. For the sake of convenience, we got approved a consolidated plan by the Municipal Corporation, Kakinada under BA No. 129/06/G2. Dated 29-12-2006. Sri Vikramkumarjain, Sujit Kumar, Smt. Lalitha and Smt. Vasanthi Bai have separated their site to the extent of 985 sq. yards (from out of the site covered under the plan) and they propose to sell away the same to different persons. We have no objection. If they sell their property of the said 985 sq. yards where a building consisting of flats under the name Rajendra towers which is under construction. We have no right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference we extract the relevant part the proviso to section 153C which reads as under: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to section 153A shall be construed as reference to 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. 13. As per the provisions of section 153C of the Act the A. O. is required to initiate the proceedings and issue the notice only on the basis of money, bullion, jewellery, other article or thing seized or requisitioned belonged to or any books of accounts or documents seized or requisitioned pertains to or pertain to the assessee. For ready reference we extract section 153C of the Act, which reads as under:- "153C(1) Not withstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the position that emerges there from is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred. 19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years 2000-01 and 2001-02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy. 20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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