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TMI Blog2019 (10) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... M AND SHRI VIKAS AWASTHY, JM Assessee by: Shri Sunil Ganoo Revenue by: Shri Vishwas Munde ORDER PER D. KARUNAKARA RAO, AM: There are two appeals under consideration filed by two different assessees involving same assessment year 2003-04. The appeal in ITA No.1427/PUN/2011 pertains to Late Shri Babanlal B. Agarwal (Shri Anil B. Agarwal is a legal heir) filed against the order of CIT(A)-II, Nashik dated 28.09.2011 for the Assessment Year 2003-04. Further, the appeal in ITA No.300/PUN/2014 pertains to Anil Babanlal Agrawal (Individual) and it is filed against the order of CIT(A)-II, Nashik dated 03.01.2014 for the Assessment Year 2003-04. 2. Before us, at the outset, ld. Counsel for the assessee submitted that in these two appeals, the facts are identical and the legal issues involved are common. Mentioning the facts of these two appeals, the ld. Counsel submitted that a search action u/s 132 of the Act was conducted in the case of Chhoriya group on 22.08.2008. The said search action resulted the seizure of incriminating material by way of a diary containing various entries. Such entries relate to both the two assessees. Otherwise, there is no dispute on the fact that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y please be annulled. 2. Without prejudice to other grounds of appeal and by way of an alternate submission it is submitted that, the learned Assessing Officer ought to have framed the assessment order u/s 153C of the I.T. Act 1961 and having failed to do so, the impugned reassessment order is bad in law, null and void ab initio and without jurisdiction and hence the impugned assessment order and the impugned appellate order may please be annulled. 3. Since the impugned reassessment order is passed in utter disregard and violation of the principles of natural justice the same is bad in law and null and void and the learned C.I.T.[A] ought to have annulled the same. It is requested that the impugned assessment order may please be annulled. 4. The learned C.I.T.[A] has grossly erred in confirming the various additions made by the learned Assessing Officer on the basis of documents seized from Chhoriya Group of cases during search and seizure action, having complete disregard to the assessments framed in Chhoriya Group of cases and the treatment given to the contents of the seized papers in the assessments of the said group. The impugned order passed by the learned C.I.T.[A] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee brought my attention to the above extracted additional ground no.1 and submitted that this a case of issuing notice u/s 153C of the Act as the information relating to the assessee was found from the documents seized belonging to Sinhagad Technical Education Society (STES). Further, bringing my attention to the amended provisions of section 153C by the Finance Act, 2015 w.r.e.f. 01.06.2003 (A.Y. 2004-05), ld. Counsel submitted that the amended provisions are in existence at the time of issue of notice u/s 148 of the Act dated 21.04.2016 whereby the law makers have widen scope of provisions of section 153C of the Act for taxing such income of ₹ 15 lakhs in this case. The ld. Counsel submitted that this is a clear case of information "pertaining" to the assessee emanating "belonging" from the documents to Sinhagad Technical Education Society (STES). Both these expressions fall in the scope of the amended section 153C of the Act. Therefore, the Assessing Officer erroneously assumed jurisdiction u/s 147 of the Act with reference to the provisions of section 153C of the Act. Consequently, the order made by the Assessing Officer u/s 147 r.w.s. 143(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction related to assessment year 2006-07. The Assessing Officer while recording reasons for reopening the assessment mentioned that the assessee had declared income from long term capital gains on the sale of said land in the return of income. Secondly, from the evidences seized / impounded, it was observed that the assessee and his brother had entered into Joint Venture Agreement with Namrata Developers to evade tax on sale of land, since on the said land Namrata Developers developed 80IB(10) project and claimed deduction on the entire project. Thereafter, the Assessing Officer has raised various issues in respect of suppression and short computation of long term capital gains by increasing cost of acquisition and / or suppression the sale consideration. Reference is also made to the statement of Shri Ganesh Khandge, the person searched, which was recorded under section 131 of the Act on 12.02.2013. The Assessing Officer thus, held that there was reason to believe that income chargeable to tax had escaped assessment and notice under section 148 of the Act was issued to the assessee. The assessee in reply, submitted that return of income earlier filed may be treated as filed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can be initiated under section 147 / 148 of the Act. The said proposition has been held by the Pune Bench of Tribunal in the case of Joshi Wadewale Hadapsar Vs. DCIT in ITA Nos.105 & 106/PUN/2016, relating to assessment years 2009-10 & 2010-11 with lead order in the case of Mrs. Vasundhara Shailesh Joshi Vs. DCIT in ITA Nos.95 & 96/PUN/2016, relating to assessment years 2009-10 & 2010-11, vide consolidated order dated 27.03.2018. The relevant findings of the Tribunal are as under:- "28. The first issue which arises is whether the assessment in such circumstances was to be made under section 153C or 148 of the Act and connected issue is whether such an issue of assessment being completed under a particular section was valid or not, can be raised while deciding the issue of levy of penalty under section 271(1)(c) of the Act against the income assessed in the hands of assessee. In this regard, the learned Authorized Representative for the assessee has pointed out that the issue stands covered by the ratio laid down in ITO Vs. Shri Shailendra B. Agrawal (supra) and in bunch of appeals with lead order in ACIT Vs. Shamsundar Laxman Jagtap (supra). The relevant provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of such assessment year in the manner provided in section 153A." 29. Section 153C of the Act very clearly lays down that notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 153 of the Act, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing seized or requisitioned, belongs to; or any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, such books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and the Assessing Officer shall proceed against such other person and issue notice and assess or reassess the income of other person in accordance with provisions of section 153A of the Act. Section thus, very clearly lays down the procedure to be followed when during the course of search on a person any money, bullion, jewellery or valuable article or thing, or any books of account or documents or any information contained therein pertains to or relate / relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 153C of the Act and not section 147 / 148 of the Act. Accordingly, we hold so. Consequently, re-assessment order passed of the Act does not stand. under section 148 The Assessing Officer is thus, directed to cancel the same. Consequently, the additional ground of appeal raised by the assessee is allowed and we hold that assessment framed by the Assessing Officer is null and void. Consequently, the issue raised on merits by the assessee and the Revenue becomes academic in nature and the same are dismissed. 10. The facts and issues in ITA Nos.1972/PUN/2014 & 2056/PUN/2014 are identical to the facts and issues in ITA Nos.1971/PUN/2014 & 2057/PUN/2014 and our decision in ITA Nos.1971/PUN/2014 & 2057/PUN/2014 shall apply mutatis mutandis to ITA Nos.1972/PUN/2014 & 2056/PUN/2014. 11. In the result, appeals of assessee are allowed and appeals of Revenue are dismissed." 10. From the above, it is evident that the above decision of the Tribunal (supra) is squarely applicable to the facts of the present case. Therefore, the additional ground no.1 has to be allowed." 5. The amended provisions of section 153C of the Act w.r.e. from 2013, apply to the year under consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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