9911796707
TMI Blog2024 (7) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... No other contrary facts or decision was brought on record by the Ld. DR Therefore, it is held that the assessment order dated 29.12.2022 passed u/s 143(3) of the Act by the issuance of notice u/s 143(2) of the Act dated 30.06.2022 is bad in law and hence the notice u/s 143(2) of the Act, dated 30.06.2022 and the consequent assessment order dated 29.12.2022 passed u/s 143(3) of the Act are hereby quashed. The additional grounds filed by the assessee are allowed. - Shri Challa Nagendra Prasad, Judicial Member And Shri Brajesh Kumar Singh, Accountant Member For the Assessee : Shri Ved Jain, Adv. And Shri Aman Garg, CA For the Revenue : Shri Prakashnath Barnwal, CIT-DR ORDER PER BRAJESH KUMAR SINGH, AM, This appeal by the assessee is directed against the order of the Ld. Commissioner of Income Tax-(Appeals)-23 (in short CIT(A) ), New Delhi, dated 13.09.2023 pertaining to Assessment Year 2021-22. 2. The assessee has raised following grounds of appeal:- 1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that the assessee has made the payment of commission on account sale of property and treating the same as unexplained expenditure invoking the provisions of section 69C read with the section 115BBE of the Act. (ii) That the abovesaid addition has been confirmed despite the nothing has been brought on record by the AO on record in support of the allegation made against the assessee. 8. On the facts and circumstances of the case, the learned CIT(A), NFAC has grossly erred both on facts and in law in confirming the above additions by indulging in surmises without bringing on any direct evidence against the assessee, only on the basis of presumption and assumption. 9. On the facts and circumstances of the case, the learned CIT(A), NFAC has grossly erred both on facts and in law in confirming the above additions ignoring the fact that the addition has been made by the AO relying upon the statements of third parties recorded at the back of the assessee without providing the opportunity of cross examination of those statements. 3. The assessee has also raised additional ground vide letter dated 19.03.2024, being ground nos.11, 12 and 13, which are reproduced as under:- 1. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Jain s mobile were seized. In this clone data, a Kachi Parchi was found from where the AO found evidence of receipt of unaccounted cash of Rs. 94 lakhs and payment of commission of Rs. 2.50 lakhs in respect of sale of a property situated at E-92, 2nd Floor, Preet Vihar, Delhi-110092 by the assessee to Ms. Navita Malhotra and Shri Gurdeep Singh. This property was registered on 28.01.2021. After considering the submissions of the assessee, the Assessing Officer passed an assessment order u/s 143(3) of the Act on 29.12.2022 determining total income at Rs. 1,60,17,760/- after making an addition of Rs. 94,00,000/- towards undisclosed sales consideration and Rs. 2.50 lakhs as unexplained expenditure. 5. Aggrieved with the order, the assessee filed an appeal before the ld. CIT(A). The Ld. CIT(A) noted that various notices of hearing were issued to the assessee, in response to which, the assessee filed only adjournment letters and no reply was furnished in respect of any ground of appeal. The ld. CIT(A) observed that prima facie, it was evident that the assessee was not interested in pursuing the present appeal. However, it is noted that the ld. CIT(A) in para-15 observed that he had go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cited case, the AR submitted that for assessment proceedings u/s 153C of the Act, the period of six years immediately preceding the assessment year relevant for the previous year, in which search was conducted has to be reckoned from the date of receipt of the documents by the AO of the assessee which is 30.06.2022 and accordingly assessment years relevant for the previous year in which search was conducted is AY 2023-24 and the six assessment years immediately preceding the assessment year, relevant for the previous year in which search was conducted will be AY 2018-19 to 2022-2023. He further submitted that in the present case assessment proceedings for AY 2021-22 should have been framed u/s 153C of the Act after issuance of notice u/s 153C of the Act. The ld. AR submitted that however in the present assessment year i.e. AY 2021-22, it was wrongly framed under section 143(3) of the Act by the issue of notice u/s 143(2) of the Act on 30.06.2022 along with notice u/s 153C for Assessment years 2015-16 to 2020-21. 7.3. The Ld. DR supported the orders of the authorities below 8. We have considered the rival submissions and perused the material available on record. We find merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Tribunal in the case of DSL Properties (supra) are being reproduced hereunder: 19. We have carefully considered the rival submissions. Proviso to section 153C reads as under: Provided that in case of such other person, the reference to the date of initiation of the search u/s 132 or making of requisition u/s 132A in the second proviso to [sub-section (1) off section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the AO having jurisdiction over such other person. 20. The above proviso refers to second proviso to sub-section (1) of section 153A. That section 153(1) and its first and second provisions read as under: - 153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated u/s 132 or books of account, section 132A after the 31st day of May, 2003, the AO shall - (a) Issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of proceedings u/s 153C itself is invalid, however, since both the parties have argued the issue of period of limitation also, we deem it proper to adjudicate the same. Since in this case satisfaction is recorded on 21st June, 2010 and notice u/s 153C is also issued on the same date, then only conclusion that can be drawn is that the AO of such other person has taken over the possession of seized document on 21st June, 2010. Accordingly, as per section 153(1), the AO can issue the notice for the previous year in which search is conducted (for the purpose of Section 153C the document is handed over) and six assessment years preceding such assessment year. Now, in this case, the previous year in which the document is handed over is 1st April, 2010 to 31st March, 2011. The assessment year would be A.Y. 2011-12. Six preceding previous years and relevant assessment year would be as under: Previous Year Assessment Year 1.4.2009 to 31.3.2010 2010-11 1.4.2008 to 31.3.2009 2009-10 1.4.2007 to 31.3.2008 2008-09 1.4.2006 to 31.3.2007 2007-08 1.4.2005 to 31.3.2006 2006-07 1.4.2004 to 31.3.2005 2005-06 22. The Assessing Officer has issued notice u/s 153C for A.Y. 2004-05 which is clearly barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 132 or the requisition u/s 132A. For instance, in the present case, with reference to the Puri Group of Companies, such date will be 5.1.2009. However, in the case of the other person, which in the present case is the petitioner herein, such date will be the date of receiving the books of account or documents or assets seized or requisition by the AO having jurisdiction over such other person. In the case of the other person, the question of pendency and abatement of the proceedings of assessment or reassessment to the six assessment years will be examined with reference to such date. 18. In view of the above finding, the assessment framed u/s 143(3) of the Act for the A.Y. 2009-10 in the present case is not valid. Respectfully following the above cited decisions on an identical issue, the additional ground no. 4 in the present case is decided in favour of the assessee and in the result the assessment order is quashed as void. 19. Since in the above finding on the issue raised in additional ground no. 4 we have quashed the assessment order itself, the additions questioned by the assessee by way of other grounds of the appeal do not survive and, therefore, do not require any adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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