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TMI Blog2019 (10) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of cash deposit alone. Accordingly, we set aside the issue back to Ld. AO for re-computing peak credit, taking into account both deposits as well as withdrawal during relevant period for assessment years under consideration in case of both assessee is before us. Accordingly, grounds raised by assessee s on merits stands allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds of appeal. 10.For the above and other grounds that may be urged at the time of hearing of the appeal, the Appellant, prays that the appeal may be allowed and justice rendered. Grounds raised by assessee in this appeal are as under; ITA No. 784/B/2011 (Assessment year 2004-05) 1. The order of the Authorities below in so far as it is against the Appellant is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant's case. 2.The appellant denies himself liable to be assessed under section 153A r.w.s. 143(3) of the Act under the impugned order on the ground that:- i. search initiated in the case of the appellant is illegal and ultra-vires the provisions of section 132(1)(a), (b) a (c) of the Act; ii. That the search is conducted not on the basis of any prior information or material inducing any belief but purely on the suspicion and therefore, the action under section 132(2) is bad in law [224 ITR 19 (SC) ] and consequent assessment under section 153A is null and void-ab-inito on the parity of the ratio of the decision of the Hon'ble Apex Court in the case of Ajith Jain, reported in 260 ITR 80. iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self liable to be assessed under section 153C r.w.s. 143(3) of the Act under the impugned order on the ground that:- i. The mandatory conditions to invoke jurisdiction under section 153C of the Act, did not exist or having not been complied with and consequently the assessment made is bad in law for want of requisite jurisdiction. ii.The reasons for issue of notice under section 153C of the Act have not been given and the appellant has reason to believe that the same has not been recorded and consequently the assessment made is bad in law. The mandatory conditions to assume jurisdiction is to record reasons and in the absence of the same the assessment made under section 153C of the Act is bad in law and liable to be cancelled. iii.The authorities below have not furnished the reasons recorded, though requested by the appellant asking for reasons if recorded by the learned assessing officer and therefore the assessment requires to be set aside. Reliance is also placed on the parity of reasons of the Apex Court in the case of GKN Driveshafts (India) Ltd. Vs. Income-Tax Officer & Others reported in 259 ITR 19 and Manish Maheshwari Vs. ACIT & Another reported in 289 ITR 341. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isite jurisdiction. ii. The reasons for issue of notice under section 153C of the Act have not been given and the appellant has reason to believe that the same has not been recorded and consequently the assessment made is bad in law. The mandatory conditions to assume jurisdiction is to record reasons and in the absence of the same the assessment made under section 153C of the Act is bad in law and liable to be cancelled. iii. The authorities below have not furnished the reasons recorded, though requested by the appellant asking for reasons if recorded by the learned assessing officer and therefore the assessment requires to be set aside. Reliance is also placed on the parity of reasons of the Apex Court in the case of GKN Driveshafts (India) Ltd. Vs. Income-Tax Officer Et Others reported in 259 ITR 19 and Manish Maheshwari Vs. ACIT Et Another reported in 289 ITR 341. 3.The authorities below failed to appreciate that a valid search is a sine qua non for making a valid assessment under section 153A of the Act on the parity of the ratio of the decision of the Hon'ble Apex Court in the case of Ajit Jain, reported in 260 ITR 80. The issue of notice under section 153C of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and assessment order under section 143(3) read with section 153C of the Act was passed in case of his wife for years under consideration. 2.1 Ld. AO noticed that assessee and his wife deposited cash in bank accounts held by them, for which they could not offer any explanation. It was only submitted that source of deposit was out of sales which has already been offered to tax. Ld.AO not satisfied with explanation worked out peak credits in assessee as well as his wife's case. 3. Aggrieved by addition made by Ld. AO in case of assessee as well as his wife, appeal was filed before Ld.CIT (A). Before Ld.CIT (A) assessee challenged jurisdiction under section 153A and 153C of the Act. Ld.CIT (A) dismissed appeal filed by assessee for years under consideration. 4. Aggrieved by order of Ld.CIT(A), both assessee are in appeal before us now. Common issue alleged by both assessee for years under consideration are in respect of validity, as well as applicability of section 153A and 153C in case of assessee and his wife respectively where it has been alleged that search action under 132 itself was invalid. It has been submitted that search initiated was without assuming jurisdiction to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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