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TMI Blog2023 (10) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... invoicing of purchase cost of bottles cannot be considered as an asset for the reason that the word asset is explained in Explanation 2 to fourth proviso to Sec. 153A which means any investment of the assessee towards land or building or both, share and securities, loan and advances, deposits in bank account. Moreover, in the assessment order, AO did not mention any evidence to corroborate his claim that the unaccounted cash was paid by the assessee for purchase of its assets or there were any unexplained asset/investment which had been purchased from the alleged unaccounted cash. As relying on Viraj Profiles Limited case [ 2023 (5) TMI 358 - ITAT MUMBAI ] we are of the considered opinion that the ld. CIT(A) has rightly held that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of asset is inclusive one. 2.2 The Id.CIT(A) failed to appreciate that Shri.K.Karthikeyan, Director of the assessee company, admitted in the Sworn statement recorded on 29/12/2017, that overpricing of bottles and cartons was done in the case of purchases from Sri Sai Enterprises and Sri Sai Cartons and unaccounted cash was received by M/s.Midas Golden Distilleries Pvt Ltd. Thus the condition laid down in forth proviso to Sub section (1) of Sec. 153A for initiating proceeding u/s. 153A was satisfied . 2.3 The Ld.CIT(A) erred in observing that the loose sheets and sworn statements cannot be brought under the definition of Asset for the purpose of 4th proviso to Sec. 153A(1). Here, the assessing officer has not considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee and by holding that the notice issued under section 153A of the Act is valid, the Assessing Officer has completed the assessment under section 143(3) r.w.s. 153A of the Act dated 30.12.2019 making various additions for the assessment years 2008-09, 2010-11 and 2011-12. 3. The assessee carried the matter in appeal before the ld. CIT(A) challenging the assessment proceedings initiated under section 153A of the Act. After considering the submissions of the assessee and by holding that the notice issued under section 153A of the Act is without jurisdiction and the consequent assessment so framed under section 143(3) r.w.s. 153A of the Act was void ab initio, the ld. CIT(A) has observed as under: 5.6 It can be seen from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law. Therefore, the notice issued u/s 153A of the Act is without jurisdiction and the consequent assessment so framed u/s 143(3) r.w.s. 153A of the Act was also void ab initio. 4. Aggrieved, the Revenue is in appeal before the Tribunal and contended that the ld. CIT(A) has erred in not adjudicating the merits of the case holding that the notice under section 153A of the Act issued for the assessment year is without jurisdiction in view of the fourth proviso to section 153A(1) of the Act and the consequent assessment framed under section 143(3) r.w.s. 153A of the Act is void ab initio on the ground that the unaccounted income generated in the form of cash is an asset and further as per the explanation 2 to fourth proviso to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and (c) the search under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017. (iv) Explanation 182 to sub-section (1) of Section 153A reads as under: Explanation I. For the purposes of this sub-section, the expression relevant assessment year shall mean an assessment year preceding the assessment year relevant to the previous year in which search is conducted or requisition is made which falls beyond six assessment years but not later than ten assessment years from the end of the assessment year relevant to the previous year in which search is cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be shown by the AO that (a) the books of account or other documents or evidence in his possession reveal that the income which has escaped assessment for the relevant assessment year is in the form of asset (b) the quantum of income so escaped amount to fifty lakhs or more in the relevant assessment year or in aggregate in the relevant assessment years. (c) the said income should have escaped assessment for such year or years. (d) the search is initiated on or after 1st day of April, 2017. (e) the relevant assessment year is the year preceding the year of search which falls beyond six preceding assessment years but not later than ten assessment years. Hence, it is required to be shown by the AO that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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