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TMI Blog2021 (1) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2013 is filed by the assessee and ITA. No. 1405 (Del) of 2013 is filed by the ld. Assistant Commissioner of Income Tax , Central Circle-23, New Delhi [ The ld AO] against the order of the ld Commissioner of Income Tax ( Appeals) -XXXIII, New Delhi [ Ld CIT (A) ] dated 17.12.2012 for the Assessment Year 2007-08 02. The grounds of appeal raised in both these appeals are as under:- ITA. No. 1751 (Del) of 2013 [By Assessee]: "1. That on the facts and circumstances of the case and in law the CIT(A) erred in rejecting appellant's contention that assessment order made by Assessing Officer was bad in law and void ab-initio on the ground that it ought to have been made u/s 153C of the Income Tax Act, and not, as was done u/s 143(3) of the Income Tax Act. 2. That without prejudice, on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the action of the Assessing Officer in relying upon the material seized in the case of search on M/s BPTP group of cases despite:- i) that such material had no nexus/relevance with the case of the appellant and, ii) that, the CIT(A) himself holding that such material did not belong to the appellant. 3. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup. It filed its return of income on 23.10.2007 declaring 'NIL' income. The assessment under Section 143(3) of the Income Tax Act, 1961 (the Act) was passed on 29.12.2009 determining the total income of the assessee at ₹ 4,23,52,990/-. The ld. Assessing Officer made an addition of a. ₹ 4,02,21,741/- on account of interest on post-dated cheques and b. ₹ 21,31,249/- on account of disallowance of additional payment. 05. The assessee-preferred appeal before the ld. CIT (Appeals) who held that in case of post dated cheques' interest; the AO is directed to re-compute interest of the post dated cheques after six months from the date of issue of such cheques. Regarding the additional payments of ₹ 21,31,249/-, he held that the additional payment is made by the Appellant company to the seller of land on account of enhanced rate of land at the time of realization of post dated cheques. However, he held that additional payment made to the owner of the land or to his relatives who have some legal claim over such land paid by way of account payee cheque is allowable as expenditure under Section 37 of the Act. With respect to other payment, he held that if any leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered u/s 153A. Therefore, such income is to be assessed in normal provision of Act either u/s 143(3) or 147 of I.T. Act, 1961. If any evidence is found, though not belonging to other person, but income but income has to be assessed in the hands of other person. To strengthen my view, I rely on the judgment of Hon'ble apex court in the case of Pooran Lal Vs. CIT (1974) 093 ITR 0505 (SV) where Hon'ble Supreme Court has held that material obtained from search even where search is made in contravention of provision can be used for making assessment. Therefore, the emphasis of Hon'ble Supreme Court is assess income from the material seized as a result of search. Entire argument and judicial pronouncement relied upon by Ld AR is that A.0. should have invoked Sec 153C without which no addition can be made on the basis of seized material. In my view, these judicial pronouncements is not applicable on the case where seized material is not belonging to other persons but inference can be drawn for generation income either direct or deemed or disallowance of expense in the hand of other person. Therefore, as discussed above, the argument of ld. AR is not accepted on challenging jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhay Kumar Shroff Vs. CIT 162 Taxman 429 (Jharkhand) also. Therefore, he submitted that the assessment requires to be annulled in this case. He further relied upon the decision of the Hon'ble Delhi High Court in Ssp Aviation Ltd. Vs. DCIT (supra). He also relied upon the decision of the co-ordinate bench in ITA. No. 1468 (Del) of 2013 dated 5.09.2014 wherein in para 6 the co-ordinate bench noted that when on materially identical set of facts similar relief granted by the CIT (Appeals) was accepted by the Revenue authorities and the matter reached finality by not challenging the same in appeal closes the issue in favour of the assessee. He submitted that no orders of the ld. CIT (Appeals) were challenged before the co-ordinate bench on this issue. He further submitted the copies of the orders of the CIT (Appeals) at page Nos. 197 to 228 of the paper book. In view of this, he submitted that on this jurisdictional ground the appeal of the assessee should be allowed. 10. He also referred from his submission as under :- "5. The CIT(A) upheld the assessment made u/s 143(3) by giving the following solitary reason in paras 5.2.2 & 5.3:- Para 5.2.2 "Undoubtedly AO has utilized th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been extended" There is inadvertent mistake on the part of CIT(A) in mentioning about the cheques issued by Shalimar Town Planners Pvt. Ltd which are at pages 14 & 15 as against cheques issued by several other companies like assessee., M/s Glitz Builders and Promoters Pvt Ltd, M/s Countrywide Promoters Pvt. Ltd, M/s Dynasty Construction Pvt. Ltd, M/s Fragrance Construction Pvt. Ltd. Copies of these seized documents are at pages 116-119 of Paper Book. Nevertheless the CIT(A) has noted in para 5.3(xx) in respect of Page 14 which, page inter alia, contains the copy of cheque issued by M/s Glitz Builders and Promoters Pvt. Ltd, which means that he has taken cognizance of this seized document. However inadvertently mentioned to have been issued by M/s Shalimar Town Planners Pvt. Ltd instead of various other companies including assessee. Beside seized document Page 14, Annexure-A-1, Party BO-III, the AO has used, referred and relied upon the following seized documents in assessment order which mention name of appellant. Page 70, Annexure-A-1, Party BO-I of the seized document is at page 93 of Paper Book." 11. The ld. DR vehemently submitted that in case of a group concern Remar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the ld. AO after recording all the seized material in the body of the assessment order stated that there are number of other seized documents, which proves that assessee has made payment of interest to the beneficiaries. In para 2.4 of the assessment order also the ld. AO noted that though assessee has denied that there are no incriminating documents seized for payment of interest on post dated cheques, the ld. AO has materially tabulated that there are incriminating documents in the form of post dated cheques based on which the addition is made. Some of these cheques are found during the course of search in case of a third party. Therefore, apparently the assessment is required to be made under the provisions of Section 153C of the act. 14. Before us the learned authorised representative has placed copies of the order of CIT - A in case of Anjali Promoters And Developers Private Limited for assessment year 2007 - 08 in appeal number 525/09 - 10/313 dated 27/05/2013, Appeal Number 438 - 0809 - 234 dated 28/11/2012 in case of Poonam Promoters And Developers Private Limited for assessment year 2006 - 07, order of the learned CIT - A in appeal number 436/08/09/232 dated 28/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same question cannot be subsequently agitated." One of the decisions referred to by the Full Bench was the case of Hoystead vs. Commissioner of Taxation (1926) AC 155 (PC). Speaking for the Judicial Committee, Lord Shaw stated: "Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of a setting to rest rights of litigants, applies to the case where a point, fundamental to the decision taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken." These observations we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approve the same"
16. Thus, when revenue has not challenged the order of the learned CIT - A on identical facts and circumstances in case of other assessees of the same group, the revenue cannot say that the order of the learned CIT - A is incorrect as it has already accepted by the revenue is correct by not filing an appeal before the coordinate bench.
17. Accordingly ground number [1] of the appeal of the assessee contesting that the assessment order made by the assessing officer was bad in law and void ab initio on the ground that it was to have been made u/s 153C of the income tax act and not, as was u/s 143 (3)/147 of the income tax act 1961 is allowed.
18. As we already allowed ground number one of the appeal of the assessee, ground number 2 - 5 of the appeal are not required to be adjudicated.
19. In the result ITA number 1751/del/2013 filed by the assessee is allowed.
20. In view of our decision in ground number [1] of the appeal of the assessee, ITA number 1405/del/2013 filed by the learned assessing officer is dismissed.
21. In the result, appeal of assessee is allowed and appeal of Ld AO is dismissed.
Order pronounced in the open court on: 27/01/2021. X X X X Extracts X X X X X X X X Extracts X X X X
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