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TMI Blog2022 (6) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the AO issuing notice u/s 148 for reopening such assessment as the said concept is repugnant to the special scheme of assessment of undisclosed income for the block period. The first proviso u/s 158BC(a) of the Act specifically provides that no notice u/s 148 of the Act is required to be issued for the purpose of proceedings under Chapter XIV-B. - Therefore, the assessment order is hereby quashed. - SH. KUL BHARAT, JUDICIAL MEMBER For the Appellant : Sh. Ashwani Kumar, CA Sh. Bhavesh Jindal, CA For the Respondent : Sh. Manpreet Singh Duggal, Sr, DR ORDER PER KUL BHARAT, JM: Both the appeals by the assessee are directed against the order dated 02.09.2013, passed by the Ld. Commissioner of Income Tax (Appeals), Bathinda, pertaining to the Assessment Year 2006-07. 2. The assessee has raised the following grounds of appeal: 1. That the order passed u/s 250(6) of the Income Tax Act, 1961 is against law and facts on the file in as much as the Ld. Commissioner of Income Tax (Appeals), Bathinda was not justified to arbitrarily uphold the validity of issuance of notice under section 148 of the Income Tax Act, 1961. 2. That the order passed u/s 250(6) of the Income Tax Act, 1961 is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/Chd/2018 and in the case of Income Tax Officer v. Arun Kumar Kapoor in ITA No. 147 (Asr) of 2010. Further, the Ld. counsel for the assessee submitted that the Hon ble High Court of Chhattisgarh has also taken a similar view. Ld. counsel submitted that the Assessing Officer was required to frame assessment u/s 153C as the Assessing Officer has himself stated in the assessment order that during the course of search at the premises of Sh. Rajan Setia, certain incriminating documents related to sale transaction was gathered. Therefore, the assessment made under section 147 of the Act is illegal and unjustified. 7. On the contrary, the Ld. Departmental Representative supported the orders of the authorities below. He submitted that assessee has never taken such objection before the authorities below. He submitted that the assessee participated into the assessment proceeding, therefore, he was aware of the fact that on what basis the assessment was being made. 8. I have heard the rival contention and perused the material has gone through the orders of the authorities below. I find under the identical facts, the Division Bench of this Tribunal in the case of Sh. Sanjay Singhal (HUF) v. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under section 148 of the Act is required to be issued for the purpose of proceedings under Chapter XIV-B. 17.2 On a similar issue the Coordinate Bench of ITAT Delhi Bench A in the case of Shri Adarsh Aggarwal Delhi Vs. ITO, Ward-61, Delhi in ITA No. 777/Delhi/19 for the A.Y. 2010-11 vide order dt. 14/01/2020 by following the decisions of ITAT Bench Visakhapatnam in the case of G. Koteswar Rao and ITAT Amritsar Bench in the case of ITO Vs. Arun Kumar Kapoor (2011)140 TTJ 249 (Asr) held in para 8.2 8.3 as under: 8.2. Since Shri Naresh Sabharwal has retracted from the fact of taking any loan from assessee and genuineness of the agreement is itself in doubt which was found during the course of search and is not corroborated by any evidence or material on record, therefore, such photo copy of the agreement cannot be relied upon by the A.O. for the purpose of initiating the re-assessment proceedings in the case of the assessee. It is an admitted fact that in the present case the agreement in question was found during the course of search in the case of Shri Naresh Sabharwal and proceedings under section 153A have been initiated against him. Therefore, the agreement in question have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, the Commissioner (Appeals) was fully justified in quashing the reassessment order. 8.3. The other decisions relied upon by the Learned Counsel for the Assessee are on the same proposition. Considering the facts of the case in the light of above decisions, it is clear that loan agreement was found during the course of search in the case of Shri Naresh Sabharwal which is handed-over to the A.O. of the assessee and addition is made only on that basis. Therefore, there was no justification for the A.O. to have been initiated proceedings under section 147/148 of the I.T. Act. The correct course of action would have been to proceed against the assessee under section 153C of the I.T. Act. Therefore, initiation of re-assessment proceedings under section 147/148 of the I.T. Act is wholly invalid, void and bad in Law. Since the correct procedure have not been adopted by the A.O. and there is no justification to initiate the re-assessment proceedings against the assessee, we set aside the Orders of the authorities below and quash the reopening of the assessment. Resultantly, all additions stands deleted. 18. In the present case also if any material was found relating to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of such other person in accordance with the provisions of section 153A. 8. On a perusal of the above provisions, it would be clear that the provisions of section 153C of the Act were applicable, which supersedes the 10 applicability of provisions of sections 147 and 148 of the Act. As we have already noted hereinabove that the documents were seized during the search under section 132 of the Act and the same was sent to the assessee s A.O. at Amritsar by the Officer at Delhi. In our view, the learned CIT(A) has correctly observed that only the provisions in which any assessment could be made against the assessee in the Income tax Act was section 153C read with section 153 of the Act. It is also apparent from the record that the Officer at Delhi has mentioned in his letter that the necessary action may be taken as per law under section 153C/148 of the Act. Hence, notice issued under section 148 of the Act and proceedings under section 147 of the Act by the AO are illegal and void ab initio. In view of the provisions of section 153C of the Act, section 147/148 stand ousted. In the instant case, the procedure laid down under section 153C has not been followed by the A.O. and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, 1961 is against law and facts on the file in as much as the Ld. Commissioner of Income Tax (Appeals), Bathinda was not justified to arbitrarily uphold the addition of Rs. 385775/- on account of purchase of land. 2. That the Ld. CIT(A) failed to adjudicate on the ground that the assessment deserved to be quashed as while framing assessment, principles of natural justice were grossly violated. 4. That the Ld. CIT(A) was not justified to pass an order without allowing the appellant an opportunity to cross-examine the persons, Sh. Rajan Satia, Bawa Yadwinder Singh, S. Surjit Singh, Sh. Baldev Raj and Sh. Kishore Chand, on the basis of statement of whom the impugned order of assessment has been framed. 11. The assessee has also taken additional grounds of appeal: That very initiation of proceedings u/s 148 is bad in law in as much as action has been taken on the basis of a document found at the premises of a third party, thus proceedings if at all, were required to be initiated under the provisions of Section 153C of the Act. 12. At the outset Ld. counsel for the assessee submitted that the facts are identical to the facts of ITA No. 744/Asr/2013. He submitted that in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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