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TMI Blog2024 (7) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 153C as elapsed, AO resorted to issuing notice un/s 148 of the Act, DR failed to controvert the same. Moreso, the proceeding against the brother of the assessee initiated under Section 153C of the Act has been finally dropped as it appears from the record. Thus the fact of initiation of proceeding u/s 153C of the Act against the assessee s brother has made prior to the reassessment proceedings initiated against the assessee under Section 148 of the Act demands consideration. Such 153C proceedings initiated against the said brother Vijay Kumar was further dropped. The contention made by Learned AR is, therefore, found to be acceptable having regard to this particular facts and circumstances of the case. Thus only on the basis of the incriminating materials found and seized during the search conducted upon Laxmi Remote India Pvt. Ltd., the reassessment proceeding was initiated against the assessee before us u/s 148. But having regard to the ratio laid down in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. [ 2023 (4) TMI 1056 - SUPREME COURT] such reassessment proceeding initiated under Section 148 of the Act impugned before us found to be unacceptable. Thus taking in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her details of expenses incurred at the unit. The other IVMS software contained the details of cash sales made the said private limited company. According to the Revenue, the IVMS software was hidden from normal access and was hosted on a cloud server. Apart from that during the search, one of the directors of the said Laxmi Remote Group namely Shri Prakash Sachdeva made a statement under Section 132(4) of the Act that unaccounted sales was made by using IVMS software as alleged. 5. A list of top sales parties as per such IVMS & ERP software were prepared for the seized digital data and the name of the assessee being the Prop. of Vijay Enterprises found to have appeared in both ERP database and IVMS data base. The department was of the view that as per ERP, the sales made to the assessee was far less than actual sale made as recorded in IVMS software. On 09.01.2018, a further survey was conducted at M/s. Vijay Enterprises, Shop No.48, Lajpat Rai Market, Delhi wherein fact of making cash purchases from Laxmi Group was admitted by one Shri Vijay Kumar said to the key person of M/s Vijay Enterprises. Anomalies in record to actual sales were found; these figures were out of books and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A , 153C of the Act and in case of search conducted "after" 01.04.2021 reassessment proceeding would be initiated under Section 148 of the Act only. It was further pointed out by the Learned AR that though in the case of the assessee, notice under Section 148 of the Act issued, even on the basis of the searched documents, seized during the course of search of Laxmi Remote India Pvt. Ltd., the brother of the assessee namely Vijay Kumar was issued with the notice under Section 153C of the Act by the department itself. More so, the tax department did not take any further action in the case of brother of the assessee after receiving the objection made by him and dropped the proceedings. 9. On the basis of the above facts, it was categorically submitted before us that issuance of notice under Section 153C of the Act upon the brother of the assessee prior to the assessee substantiates that Learned AO was of the firm belief at the first instance that the assessment should be made under Section 153C of the Act. It was further contended by him that once the department realized that the time limit for completion of assessment under Section 153C of the Act as elapsed the, Learned AO resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio laid down therein to the instant case in view of the particular reason that the said matter dealt with the issue of territorial jurisdiction and not the jurisdiction exercised by the Assessing Officer in terms of the statutory provision. It is also a settled principle of law that a legal ground can be raised by the party aggrieved, at any stage even before the Apex Court. 11. We further note that so far as the contentions raised by the assessee that in the case of the brother of the assessee proceedings was initiated under Section 153C of the Act and not under Section 148 of the Act as in the case of the assessee due to the reason that at the very first instance the AO was of the opinion that proceedings should have been initiated under Section 153C of the Act and only upon realizing that the time limit for completion of assessment under Section 153C of the Act as elapsed, the Learned AO resorted to issuing notice under Section 148 of the Act, the Learned DR failed to controvert the same. Moreso, the proceeding against the brother of the assessee initiated under Section 153C of the Act has been finally dropped as it appears from the record. 12. Thus the fact of initiatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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