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TMI Blog2019 (9) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is proper satisfaction recorded by the AO of the search party as well as AO of the assessee. We set aside the order of CIT(A) and quash the assessment made by the AO u/s 143(3) r.w.s. 147 of the Act. Since the very assessment is quashed, the additions made in such assessment automatically get cancelled. Hence, this appeal of assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Sri Sai Kamal Construction Group. As per the material found during the search, assessee has purchased 10 acres of land at Dargah Inmulnarva Village, Kothur Mandal, Mahaboobnagar and paid an amount of ₹ 1,19,00,000/-. Since the assessment proceedings were initiated mainly on the information found during the search proceedings and it was found that assessee is a party to the transactions and the same material was brought on record to complete the assessment u/s.147 of the Act, however, jurisdiction lies to initiate proceedings u/s.153C of the Act and not u/s.148 of the Act. Even it is not brought on record whether there is proper satisfaction recorded by the AO of the search party as well as AO of the assessee. The issue in this appeal has already been decided by the Coordinate Bench of this Tribunal in ITA No.1695/Hyd/2017 and others in the case of Batta Yadamma and others, dt.29-11- 2018, wherein it was held as under: "7. Considered the rival submissions and perused the material on record. Similar issue was dealt by the Bengaluru Bench of ITAT in the case of Shri Srinivasa Rao Hostake (supra) wherein the coordinate bench has held as under: "06. We have heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment to be made in respect of undisclosed income of Block period consisting of 10 assessment years immediately preceding the assessment year in which search took place and the broken period of up to the date of search was also included in the block period. After the introduction of new sections, i.e. section 153A to 153C, the single block assessment concept was done way with the new scheme of assessment of search cases where the Assessing Officer is to assess or reassess the total income of each of the assessment years falling within the period of six assessment years immediately preceding the assessment year in which the search is conducted. Therefore, under the new scheme, the Assessing Officer is required to exercise the normal assessment powers in respect of the previous year in which the search took place. From these facts, one thing is clearly emerged that both i.e. earlier concept of Block assessment and the new scheme of assessment is separate provisions created for assessment of search cases where the search is conducted u/s 132 or requisition was made u/s 132A of the Act. 12. Under the provisions of section 147, the Assessing Officer is having power to re-open the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce prior to the initiation of search, the Assessing Officer is empowered to reopen those proceedings and reassess the total income taking note of the undisclosed income, if any, found during the course of search. For this purpose, the restrictions imposed on the Assessing Officer by way of sections 148 to 153 to reopen the assessment ITA.1154 & 1155/Bang/2015 Page - 11 u/s 147 has been removed by the non abstante clause used in section 153A. 14. In the present case on hand, admittedly, the Assessing Officer has reopened the assessment based on a search conducted in a third party case. The AO formed the opinion based on the statement recorded from the assessee, consequent to post search proceedings taken up by the DDIT(Inv), which shows undisclosed income which is the very basis of reopening the assessment. The search is conducted on 22-8-2008 which comes under the assessment year 2009-10. The Assessing Officer reopened the assessment year 2008-09, which is falling within those six assessment years immediately preceding the assessment year in which search is conducted. The assessee case falls within the provisions of section 153C, as the incriminating document seized in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision relied upon by the Revenue in the matter of Gudwill Housing Ltd (supra) was a decision on Section 158BD under the old Act. There is a significant difference in the construction, language and content of both the provisions i.e Section 158BD under the old Act and section 153C of new Act of 1961. Section 153C of 1961 Act, starts with a non-obstante clause, whereas this non-obstinate provision was not there in Section 158BD. Therefore in our considered opinion the decision relied upon by the Revenue is not applicable to the facts and circumstances of present case. We hold accordingly." In view of the ratio laid down in the said case, we are of the view that the AO wrongly initiated the proceedings u/s 148 and completed the assessment u/s 143(3) rws 147 of the Act, instead of initiating the proceedings u/s 153C of the Act. Therefore, we set aside the order of CIT(A) and quash the assessment made by the AO u/s 143(3) rws 147 of the Act. Since the very assessment is quashed, the additions made in such assessment automatically get cancelled". 6.1. Respectfully following the said decision of the Co-ordinate Bench, we set aside the order of CIT(A) and quash the assessment m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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