9911796707
TMI Blog2023 (10) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue has following common grounds for three assessment years: 1. The order of the learned Commissioner of income Tax (Appeals) is erroneous on fact of the case and in law. 2. The Ld.CIT(A) erred in not adjudicating the merits of the case holding that the notice u/s. 153A issued for this assessment year is without jurisdiction in view of the fourth proviso to Sec. 153A(1) and the consequent assessment framed u/s. 143(3) r.w.s.153A of the Act is void ab initio. 2.1 The Ld .CIT(A) erred in failing to appreciate that the assessee had generated cash exceeding Rs. 50,00,000/- in this assessment year by overpricing of purchases of bottles and cartons purchases from M/s.Sri.Sai Enterprises and M/s.Sri Sai Cartons Unaccounted income is gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of beverages and supplier to TASMAC, the state-owned monopoly for supplying liquor in Tamil Nadu. A search and seizure operation under section 132 of the Income Tax Act, 1961 ["Act" in short] was conducted in the assessee's premises on 09.11.2017. A notice under 153A of the Act was issued by the Assessing Officer requiring the assessee to file return of total income within 7 days. In response to the notice, the assessee filed its return of income online on 0-4.12.2019. A notice under section 142(1) of the Act was issued on 04.12.2019. Subsequently, a notice under section 143(2) of the Act was issued on 16.12.2-19. In response to the notices, the assessee had filed reply vide letter dated 20.12.2019, furnishing the details called for and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of the word "Asset" as per Explanation 2 above can only be interpreted in the context of the words accompanying it and cannot be interpreted to bring within its ambit completely different meaning such as unexplained income/expenditure, etc. The aforesaid loose-sheets and sworn statement can at best be classified as a source of information to deduce the alleged suppression of income and do not have any monetary value of its own. Hence, as per the above explanation, the aforesaid loose sheets and sworn statement cannot be brought under the definition of "Asset" for the purpose of the 4th proviso to sub-section (1) of the section 153A of the Act. Therefore, I hold that assumption of jurisdiction of the initiation of assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and cartons. The Assessing Officer issued notice under section 153A of the Act on the pretext that the income which had escaped assessment represented in the form of unaccounted cash paid for the acquisition of various assets by the assessee company. For better clarity, the relevant 4th proviso to subsection (1) of section 153A of the Act reads as under: "Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless - (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sits in bank account. Moreover, in the assessment order, the Assessing Officer 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. 6.1 Similar issue was subject matter in appeal before the Mumbai Benches of the Tribunal in the case of Viraj Profiles Limited v. DCIT (supra), wherein, the Tribunal has observed and held as under: 4.3 We have heard rival contentions on this legal issue and perused the record. We have extracted the fourth proviso to Sec. 153A of the Act in the preceding paragraph. A careful perusal of the above said proviso would reveal that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot shown that the income, if any, generated out of these two disallowances is represented in the form of asset. Hence, we are of the view that the AO could not have invoked the fourth proviso to Sec. 153A of the Act in order to reopen the assessment of AY 2011-12 and accordingly hold that the said reopening is not in accordance with the law and is liable to be quashed. Accordingly, we quash the orders passed by the tax authorities for AY 2011-12. 6.2 In view of the above facts and circumstances as well as case law relied on by the assessee in the case of Viraj Profiles Limited v. DCIT (supra), we are of the considered opinion that the ld. CIT(A) has rightly held that the notice issued under section 153A of the Act is without jurisdiction a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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