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TMI Blog2024 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... eturned income and income as per certificate issued by M/s Naveen Aggarwal Associates - In the present case under appeal before us, admittedly. Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person. Under the circumstances, we are of the considered view, that in the present case, assessment proceedings must be initiated under Section 153C rather than Section 153A of the Act, after the satisfaction was being arrived in the assessment proceedings of M/S Golden Tulip Hospitality Pvt. that the material found and seized during search pertain to appellant. We, therefore, hold that the assessment order passed under Section 153A by the AO is without jurisdiction and the same is as such quashed. - DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER For the Appellant: Sh. Rohit Kapoor, C. A. Sh. V. S. Aggarwal, ITP For the Respondent: Smt. Balvinder Kaur, CIT-DR ORDER Per Dr. M. L. Meena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s heard and disposed off. 3. Grounds of appeal in ITA No. 276/Asr/2023 1. On the facts and circumstances of the case, the Ld. CIT(A) vide order u/s 250(6) dated 10.05.2022 has erred in confirming the addition to the tune of Rs. 648720/- as against returned income of Rs. 287730/-. 2. That order passed by Ld. AO u/s 153A dated 08.04.2021 and further order passed by Ld. CIT(A) u/s 250(6) dated 10.05.2022 confirming the addition made by the AO are bad in law in as much as while passing the impugned orders the material relied upon/taken from are found from the premises of M/s Golden Tulip Hospitality during search which could have been only imported in assessee's case as per procedure prescribed u/s 153C which is not at all followed in instant case. 3. That order passed by Ld. AO u/s 153A dated 08.04.2021 and further order passed by Ld. CIT(A) u/s 250(6) dated 10.05.2022 are bad in law as the same has been confirmed by applying the provisions of 69A, taking into consideration the CA certificate. The AO and the CIT(A) have erred in not appreciating the facts that the provisions of section 69A can only be invoked when the assessee is found to be the owner of any money, bullion, jewell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment on condonation of delay by coordinate Bench (supra) reads as under: a) IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH. AMRITSAR M.K. Hotels Resorts Ltd. Distt. Shopping Complex. Ranjit Avenue. Amritsar V/s Assistant Commissioner of Income Tax, Circle-1. Amritsar 6.1 We find that the assessee has a sufficient cause for non-submission of the appeal within due time. The merit was also not considered in appeal stage as it is I.T.A. No.57/Asr/2021 Assessment Year: 2010-11 decided in limine. Therefore, we remit back the issue to the Id. CIT(A) and direct to pass the order on merits, denovo. Needless to say, the assessee should get a reasonable opportunity of hearing in set-aside proceeding. 7. In the result, the appeal of the assessee bearing ITA No. 57/Asr/2021 is allowed for statistical purposes. b) Hon'ble Supreme Court in the case of Senior Bhosale Estate (HUF) v. ACIT [20191 112 taxmann.com 134 (SC):I.T.A. No.57/Asr/2021 Assessment Year: 2010-11 Held that where revenue did not expressly refute stand taken by assessee that they had no knowledge about passing of order of Tribunal, dated 29-12-2003, until June, 2008, assessee's delay of 1754 days in filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In ground no. 6 and 7 the appellant challenged the decision of the Ld. CIT(A) in confirming the addition of Rs. 454706/- without bringing on record any incriminating material found during the course of search and that confirming the addition of Rs. 454706/- on surmises and conjectures and without bringing on record any material to prove that the appellant was in receipt of any income other than business income from the restaurant business. 9. The Ld. AR submitted that nothing incriminating was found during the course of search and that the additions made by Assessing Officer were not based on any incriminating materials/paper seized during search operation. The whole case has been framed on the basis of bank statement submitted in reply submitted in response to questionnaire issued by the AO as per para no 4 of the assessment order (APB, page no 14). He contended that it is an established law that no addition can be made u/s 153A otherwise than on the basis of incriminating document. As such, the additions made by the AO and sustained by the Hon ble CIT(A) being not based upon any document found during the course of search, deserves to be deleted. In support of arguments, he fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificates could not be treated as incriminating - High Court also held that since assessees were denied opportunity to cross-examine 'R', despite a specific request, said statement needed to be excluded and could not be relied upon as a piece of evidence to make any addition - Whether since issue was covered by judgment of Supreme Court in Pr. CIT v. Abhisar Buildwell (P.) Ltd. [2023] 149 taxmann.com 399/293 Taxman 141/454 ITR 212 (SC), special leave petition to be disposed of in terms of said judgment - Held, yes [Para 2] [In favour of assessee] b) [2023] 149 taxmann.com 399 (SC) SUPREME COURT OF INDIA Principal Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd. Section 153A, read with sections 132 and 143, of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (Conditions precedent) - Whether object of section 153A is to bring under tax undisclosed income which is found during course of search or pursuant to search or requisition; therefore, only in a case where undisclosed income is found on basis of incriminating material, Assessing Officer would assume the jurisdiction to assess or reassess total income for entire six years block a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon any document found during the course of search, would be liable to be deleted. 12. In the present case, since no incriminating material had been found during search nor brought on record by Assessing Officer and thus, the issue is squarely covered by judgment of Supreme Court in the case of Pr. CIT v. Abhisar Buildwell (P.) Ltd. [2023] 149 taxmann.com 399/293 Taxman 141/454 ITR 212 (SC). 13. Accordingly, we delete the addition of Rs. 454706/- made by Assessing Officer in absence of any incriminating material found during course of search under section 132 of the act. 14. Next, we take up the appeal in ITA No 276/Asr/2023 for adjudication. 15. In ground no. 2, the appellant challenge the validity of the assessment order passed by Ld. AO u/s 153A dated 08.04.2021 and the order passed by Ld. CIT(A) u/s 250(6) dated 10.05.2022 confirming the addition made by the AO are bad in law in as much as while passing the impugned orders the material relied upon/taken from are found from the premises of M/s Golden Tulip Hospitality during search which could have been only imported in assessee's case as per procedure prescribed u/s 153C which is not at all followed in instant case. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns upon the A.O. of the person searched that on being satisfied that books of account seized belongs to or pertain to some other persons, then, to handover the books of account to the AO having jurisdiction over such other person. Thereafter, the second AO, on being satisfied that the books of account and documents received have a bearing on the determination of the total income of the other person, should assume jurisdiction under section 153C of the Act, which is not the scenario in the present case. In this regard, relevant part of section 153C is produced as under: - 153C(1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that, (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A. then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded under 132(4) of the Act). As noted above, the Assessee had no opportunity to cross-examine the said witness, but that apart, the mandatory procedure under section 153C has not been followed. No perversity in the view taken by the ITAT. - Decided in favour of assessee. b) 2019 (3) TMI 1196 - ITAT DELHI - DEPUTY COMMISSIONER OF INCOME TAX, NEW DELHI VERSUS SMT. SHIVALI MAHAJAN, SMT. RINKU MAHAJAN, SHRI JATIN MAHAJAN, SHRI NITIN MAHAJAN, SMT. ANILA MAHAJAN, SHRI LALITMAHAJAN AND (VICE-VERSA) Assessment u/s 153A - addition based on excel sheet found during the course of search and also the statement of assessee during the course of search - addition in the case of various family members as unexplained investment in the acquisition of space in Indirapuram Habitat Centre - Whether any material found in the search of any other person than the assessee in appeal can be considered in the assessment under Section 153Aof the assessee? - Whether the addition can be made only on the basis of statement given by the assessee during the course of search? - HELD THAT:-When during the course of search of an assessee any books, document or money bullion. jewellery etc. is found which relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the document being treated incriminating material was discovered do not belong to the assessee. 19. As per the mandate of Section 153C, if this statement was to be construed as an incriminating material belonging to or pertaining to a person other than person searched as referred to in Section 153A then the only legal recourse available to the department was to proceed in terms of Section 153C of the Act by handing over the same to the AO who has jurisdiction over such person. When during the course of search of an assessee any books, document or money bullion. jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. 20. In the present case under appeal before us, admittedly. Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X
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