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TMI Blog2022 (7) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. Further, the section 153A provides that an assessment has to be made under the said section only on the basis of seized material u/s 132 or 132A, in the absence of such details in the notice issued under the said section, the assessee is not in a position to appreciate which return of income should be filed in response to the notice issued u/s 153A, whether the original return of income filed or revised return of income. Thus we are inclined to accept the submissions of the Ld. AR that notice issued u/s. 153A is bad in law and assessment made by issue of improper notice is also bad in law. Assessment made u/s. 143(3) r.w.s. 153A of the Act is bad in law - No merit of additions made by the Assessing Officer u/s. 2(22)(e) - Decided in favour of assessee. - SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, HON'BLE JUDICIAL MEMBER For the Assessee by : Shri Jitendra Jain Shri Ravikanth Pathak For the Department by : Smt. Shailja Rai ORDER PER S. RIFAUR RAHMAN (AM) 1. These cross appeals are filed by the assessee and revenue against the order of the Learned Commissioner of Income Tax (Appeals)-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Ld. CIT(A) and before the Ld. CIT(A) assessee also raised separate ground on the issue of Assessing Officer making the addition without there being any incriminating documents found during the course of search. Ld. CIT(A) however, decided the issue of incriminating material against the assessee and dismissed the same. 6. Further, assessee has filed additional grounds of appeal before us for the sake of clarity it is reproduced below: - 1. The Commissioner of Income Tax (Appeals)- 54, Mumbai, erred in confirming the action of the AO in issuing notice u/s 153A of the Income Tax Act, 1961 (Act) without mentioning therein the incriminating materials found during the course of search at the premises of the Appellant. The Appellant submits that notice issued u/s 153A of the Act without mentioning therein the incriminating materials found during the course of search at the premises of the Appellant is without jurisdiction; hence, the notice issued u/s 153A as well order passed u/s 143(3) r.w.s. 153A of the Act shall be quashed and set aside. 2. In the alternative and without prejudice to the above, the CIT(A) ought to have held that section 2(22)(e) of the Act does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the notice dated 29th November 2018, which is impugned in this petition, should have mentioned whether the seized material was under Section 132 or books of account, other documents or any assets are requisitioned under Section 132A. The notice is absolutely silent as could be seen from above. The notice says you are required to prepare true and correct return of income and setting forth such other particulars . Petitioner had filed their returns for the Assessment Year in question, which they thought was the true and correct return of income and that it contained all other particulars as prescribed. If respondent felt that was not enough and petitioner should file a fresh true and correct return of income because of the search, then respondent should certainly indicate in its notice what were the seized material under Section 132 or books of accounts or other documents or any assets requisitioned under Section 132A. Otherwise an assessee would file a copy of what it had filed earlier, which respondent anyways had in its file. Petitioner has also been seeking from respondent to make available copy of the alleged incriminating material found/seized during the search based on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the contention of the Revenue that if the order u/s. 143(1) is passed then the decision in the case of Continental Warehousing would not apply has been rejected. The said decision also considers and distinguishes Rajesh Jhaveri's case. (ii). CIT v. SKS Ispat Power Ltd., (2018) 99 taxmann.com 424 (Bom). The said decision also deals with a case wherein a distinction was sought to be made between assessment order u/s. 143(3) and intimation u/s. 143(1) qua 153A, which has been rejected as no longer res integra. (iii). CIT v. Gurinder Singh Bawa, (2017) 79 taxmann.com 398 (Bom). This decision also considers a case wherein the return was processed u/s. 143(1) and no incriminating material was found regarding gifts in the course of search and seizure. (iv ). Pr.CIT v. Vikas Gutgutia, (2017) 88 taxmann.com 605 (Delhi). (v). Pr.CIT v. Saumya Construction (P.) Ltd., (2017) 81 taxmann.com 292 (Guj). The said decision threadbare analyses all the decisions on the issue under consideration and the scheme of 153A assessment and other regular assessments. (vi). Pr.CIT v. Ram Avtar Verma, (2017) 88 taxmann.com 666 (Delhi). The said decision also considers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relied on the following decisions: - [A] On the issue of addition being made in Search Assessments even in the absence of Incriminating Material (i). Commissioner of Income-tax, Central, Kanpur v. Raj Kumar Arora [2014] 52 taxmann.com 172 (Allahabad) (ii). EN. Gopakumar v. Commissioner of Income-tax (Central) [2016] 75 taxmann.com 215 (Kerala) (iii). M/S Canara Housing Development... vs The Deputy Commissioner Of Income Tax Karnataka High Court) on 25 July, 2014 ITA No. 38/2014 (iv). CIT VS Shri KP Ummer Kerala High court's order dated 19/02/2019 in ITA No. 174 of 2013 [B] List of few cases wherein the SLP filed by the Revenue, against the orders of High Courts given in favour of the assessee on the issue of addition being made in Search Assessments even in the absence of Incriminating Material, are admitted (i). Principal Commissioner of Income Tax v. Gahoi Foods (P) Ltd [2020] 117 taxmann.com 118 (SC) (ii). Principal Commissioner of Income-tax v. Param Dairy Ltd. [2021] 133 taxmann.com 148 (SC) (iii). Principal Commissioner of Income-tax v. Gaurav Arora (2021) 133 taxmann.com 293 (SC) (iv). Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing prevented the revenue from mentioning in the notice the basis for issuing the notice u/s 153A so that the assessee could comply with the same as prescribed. 17. Therefore, the issue under consideration is exactly similar to the issue raised in the case of Underwater Services (supra), hence the notice issued u/s 153A is bad in law and the assessment made by issue of improper notice is also bad in law, accordingly we follow the direction of the Hon ble Jurisdictional High Court decision and accordingly we hold the assessment made u/s 143(3) r.w.s 153A is bad in law. Therefore, the additional ground raised by the assessee is allowed. 15. Respectfully following the above said decision, we are inclined to accept the submissions of the Ld. AR that notice issued u/s. 153A is bad in law and assessment made by issue of improper notice is also bad in law. Accordingly, we follow the directions of the Hon'ble Bombay High Court and accordingly, we hold that assessment made u/s. 143(3) r.w.s. 153A of the Act is bad in law. With regard to submissions made by Ld.DR and the cases relied by him, we observe that the cases referred by him are not of this jurisdiction and further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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