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TMI Blog2023 (6) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... in cash of Rs. 2.00 Crores for admission of students in Medical College at Kolhapur. 2.2. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) is justified in deleting the addition made on account capitation fee/donation in cash of Rs. 2.00 crores without appreciating the fact that the AO has made addition on the basis of facts/statements of the employees/evidences gathered during the course of search and assessment proceedings. CO No. 58/MUM/2022 (ITA No. 2293/MUM/2021) Assessment Year: 2011-12 1. That the notice issued U/s 153C and/the assessment order passed u/s 153C r.w.s. 143(3) of the Income Tax Act ('Act') is illegal, bad in law, without jurisdiction and barred by time limitation. 2. That the Commissioner of Income Tax (Appeal)-49 Mumbai (CIT(A)) has grossly erred in law and on facts in upholding the assessment order passed by the Assessing officer us 153C r.w.s. 143(3) of the Act. 3. That the Learned Assessing Office as well as Ld CIT(A) erred in law and not appreciating the facts that the addition is not sustainable in a non- abated assessment year without any incriminating document found during the course of search." 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andemic and hence, appeals are admitted for adjudication. 5. The Ld. Counsel of the assssee has filed an application of additional ground, which is reproduced as under: 1. The Ld. AO has erred in law an d in facts is not appreciating that the impugned assessment ought to have been made u/s 153A of the Act and not u/s 143(3) of the Act and therefore the assessment made by the AO is bad in law and invalid. 6. We have heard submissions of the parties on the issue of admissibility of additional ground. In view of the decision of Hon'ble Supreme Court in the case of NTPC v. CIT 229 ITR 383 (SC), being legal issue raised and no fresh investigation of fact required, the additional ground is admitted for adjudication. 7. Before the Ld. CIT(A), the assessee contended that under the provisions of section 153C of the Act, the six years which could have been reopened are six years prior to the year in which books of account or seized documents are handed over to the Assessing Officer of the assessee by the Assessing Officer of the searched person. It was submitted that since the seized material was handed over to the Assessing Officer of the assessee on 18.09.2018 and therefore, the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs u/s. 153C of the Act, the reference to the date of search in Section 153A of the Act shall be the date on which the Assessing Officer of the other person has received the books of account or documents or assets seized etc from the Assessing Officer of the person searched. Placing reliance on the judicial decisions referred to in the submissions of the assessee, as reproduced previously, it was claimed that the date of receiving of books of account or documents in the case of Assessing Officer of the assessee concerned would be the date of recording of satisfaction by the AO of the person searched and the date on which such books of accounts or documents were handed over to the Assessing Officer of the third person. As the books of account and other documents were noted to have been received on 18.09.2018, and the AO had noted his satisfaction on the same date as AO of the assessee and issued notices us 153C on 19.09.2018, the assessment years for which the notice us. 153C of the Act should have been issued are A.Y. 2013-14 to A.Y. 2018-19. It was, therefore, contended that the Id. AO should have issued notice issued us 153C of the Act for the year under reference which is AY 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted, it would mean that whereas in case of a person searched, assessments in relation to six previous years preceding the year in which the search takes place can be reopened but in case of any other person, who is not searched but his assets are seized from the searched person, the period for which the assessments could be reopened would be much beyond the period of six years. This is so because the date of handing over of assets/documents of a person, other than the searched person, to the AO would be subsequent to the date of the search. This, in our view, would be contrary to the scheme of Section 153C(1) of the Act, which construes the date of receipt of assets and documents by the AO of the Assessee (other than one searched) as the date of the search on the Assessee. The rationale appears to be that whereas in the case of a searched person the AO of the searched person assumes possession of seized assets/documents on search of the Assessee; the seized assets/documents belonging to a person other than a searched person come into possession of the AO of that person only after the AO of the searched person is satisfied that the assets/documents do not belong to the searche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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