9911796707
TMI Blog2024 (10) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be initiated u/s 148/147 of the Act in respect of the assessment years covered u/s 153A of the Act. The Hon ble Rajasthan High Court in the case of Shyam Sunder Khandelwal [ 2024 (4) TMI 196 - RAJASTHAN HIGH COURT] held that assessment/reassessment in Section 153A, 153C in cases of search or requisition has an overriding effect to the regular provisions for assessment or reassessment under Sections 139, 147, 148, 149, 151 153. In the case of Aditi Constructions [ 2023 (5) TMI 281 - BOMBAY HIGH COURT] has held that the specific provisions of section 153C would prevail over the general provisions of section 147. Decided in favour of assessee. - Shri Shamim Yahya, Accountant Member And Shri Sudhir Kumar, Judicial Member For the Appellant : Sh. Amit Goel, CA For the Respondent : Mr. Javed Akhtar, CIT(DR) ORDER PER SHAMIM YAHYA, AM : The Revenue has filed the instant appeal against the order dated 03.02.2020 of the Ld. CIT(A)-4, New Delhi relating to assessment year 2011-12 on the following grounds:- 1. The Ld. CIT(A) erred in law in cancelling the assessment, ignoring the fact that, as per the ratio of decision of the Delhi High Court in the case of PCIT vs. Meeta Gutgutia (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded before issue of notice u/s 148 of the Act by the AO for assuming jurisdiction u/s 147/148 of the Act and the assessment made is based upon the evidences found during search operation u/s 132 of the Act. It is seen that the said reasons are based on a statement recorded u/s 132(4) during search operations. The AO has made additions of Rs. 13,30,94,093/- and Rs. 1,32,03,892/-. The addition of Rs. 13,30,94,093/- has been made on account of investment in share of a company Unnati Vinimoy Pvt Ltd and another addition of Rs. 1,32,03,892/- has been made on account of unexplained investment u/s 69 of the Act which is also related to the investment in 'shares'. 6.2 The chronology of the events in the instant case is as follows. A search operation was carried out u/s 132 of the Act at the premises of the appellant (G.D. Goenka Group) on 26.07.2017. Notice u/s 148 of the Act for the instant assessment year was issued on 30.03.2018. Return of Income in response to the notice was filed on 08.10.2018. The reasons recorded before issue of notice u/s 148 were provided to the appellant on 17.10.2018. Notice u/s 143(2) was issued on 04.12.2018 and the assessment was completed on 25.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta 288 ITR 347 had an occasion to examine the provisions of section 148 and section 153A of the Act. The Hon'ble Court held that in order to decide the legality and validity of the notice issued under section 148 of the Act, it is necessary to see as to whether the conditions precedent provided in section 148 are satisfied or not. Once the conditions prescribed under section 148 are found present in the notice issued, in that event, the notice has to be upheld having been issued in conformity with the requirement of section 148. The only fetter put on the powers of the AO in taking recourse to section 148 is that it cannot be issued in relation to those assessment years which are defined in section 153A. In all other cases and for all other assessment years, section 148 can always be resorted to subject of course to the condition that it must satisfy the requirement specified in section 148 of the Act. 6.8 Hon'ble ITAT, Mumbai in the case of State Bank of India versus Deputy Commissioner of Income-Tax (2013) 22 ITR 609, held that in view of the non obstante clause with which sub-section (1) of section 153A opens, the AO has no jurisdiction to issue notice under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the judicial authorities cited above, I am of the considered view that proper course of action available before the AO was notice u/s. 153A and not 148. Therefore, I hold that the AO is not justified in issuing notice under section 148 and in completing the assessment under section 143(3) r.w.s 147 of the Act. The AO instead of complying with the requirement of section 153A of the Act proceeded with the provisions of section 147/148 which are not applicable in the assessment under section 153A of the Act, therefore, the assessment completed under section 143(3) read with section 147 of the Act is a nullity and as such the assessment order passed u/s 143(3) r.w.s. 147 of the Act is illegal and without jurisdiction. The legal ground raised by the appellant is, thus, allowed. 4. Aggrieved with the aforesaid decision of the Ld. CIT(A), Revenue is in appeal before us. 5. We have heard both the parties and perused the relevant records. 6. At the time of hearing, Ld. DR relied upon the order passed by the AO and reiterated the grounds of appeal raised by the Revenue. 6.1 Per contra, at the outset, Ld. AR for the assessee submitted that in the instant case notice under section 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati Vinimoy Pvt Ltd. It was the further contention that further addition of Rs. 1,32,03,892/- made by the AO on account of alleged unexplained investment u/s 69 of the Act is also related to the investment in shares . The AO on Page no. 15 of the assessment order has himself held that it is clear that it is not a case of mere confession as made by the assessee as share transfer documents of M/s Unnati Vinimoy Pvt. Ltd. were found during the search and duly and annexurized and substantiated by modus operandi employed and which were further corroborated by the statement of entry operator and of the Dummy Director. The facts as discussed above clearly held at the assessee has made available excess amount which was paid from his unaccounted income. Thus, it is evident that the AO has made the addition on the basis of documents found during the course of search. Accordingly, the AO was required to take recourse in provision of section 153A and not to section 148 of the Act. He further submitted that in view of the above, it is clearly established that even if it is presumed that for the year under consideration, the AO was justified in initiating the reassessment proceedings and pass th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued u/s 148 and the consequent assessment order passed are liable to be quashed, hence, he submitted that Ld. CIT(A) has rightly annulled the assessment. 6.3 However, with regard to grounds of appeal filed by the revenue, reliance has been placed on the decision of Hon ble Delhi High Court in the case of PCIT v. Meeta Gutgutia 2017 (5) TMI 1224. In this regard, it was submitted by the Ld. AR that in the said case the Hon ble Delhi High Court held that invocation of provisions of section 153 A for AY 2000-01 to AY 2003-04 was not justified because of following facts in the case of Meeta Gutgutia (Supra) The statement recorded was u/s 133A and not u/s 132(4) of the Act. Therefore, the decision of Meeta Gutgutia(supra) is not applicable to the case of the assessee because in the case of the assessee, the statement recorded was u/s 132(4) of the Act. In the case of PCIT v. Meeta Gutgutia, there was no incriminating material found during the course of search for AY 2000-01 to AY 2003- 04. In the case of the assessee, the AO has himself mentioned that during the course of search share transfer document of Unnati Vinimoy Pvt Ltd were found. In the case of PCIT v. Meeta Gutgutia, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rs. 13,30,94,093/- has been made on account of alleged income escaping assessment which is alleged to be represented by an asset i.e investment in share of a company Unnati Vinimoy Pvt Ltd. Further addition of Rs. 1,32,03,892/- made by the AO on account of alleged unexplained investment u/s 69 of the Act is also related to the investment in shares . The AO at Page no. 15 of the assessment order has himself held as under:- Hence, in view of the above, it is clear that it is not a case of mere confession as made by the assessee as share transfer documents of M/s Unnati Vinimoy Pvt. Ltd. were found during the search and duly and annexurized and substantiated by modus operandi employed and which were further corroborated by the statement of entry operator and of the Dummy Director. The facts as discussed above clearly held at the assessee has made available excess amount which was paid from his unaccounted income. 7.1 On perusal of the aforesaid, it is clear that the AO has made the addition on the basis of documents found during the course of search. Accordingly, the AO was required to take recourse in provision of section 153 A and not to section 148 of the Act. Even if it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment in Section 153A, 153C in cases of search or requisition has an overriding effect to the regular provisions for assessment or reassessment under Sections 139, 147. 148, 149, 151 153. 7.5 The Hon ble Bombay High Court in the case of Aditi Constructions V. DCIT (2023) (5) TMI 281 has held that the specific provisions of section 153C would prevail over the general provisions of section 147. 7.6. The Hon ble Karnataka High Court in the case of Sri Dinakara Suvarna V. DCIT (2022) (7) TMI 800 has held that proceeding should have been initiated u/s 153C and not u/s 147 where it was based upon material found during the course of search in case of a third party. 7.7 The Hon ble Madhya Pradesh High Court in the case of Ramballabh Gupta V ACIT (2005) 149 Taxman 451 (MP) has held that due to non- obstante clause in section 153 A notice u/s 148 cannot be issued in relation to those years which are defined in section 153A of the Act. 7.8 In the case of State Bank of India vs. DCIT 2013 (12) TMI 187 - ITAT Mumbai Tribunal has held that Applying the ratio of the above decisions to the facts of the present case, we find that there is no dispute that the original assessment for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent lacuna affecting his /its jurisdiction, the same cannot be cured by having resort to section 292B. If the facts of the case under appeal are considered in light of the above discussion, it becomes clear that the provisions of section 292B are not applicable. In the cross objections the AO wants us to treat us the assessment completed u/s. 148 as assessment finalised u/s. 153 A of the Act. In our opinion, both the sections deal with different situations and notice issued under one section cannot be treated notice under another section nor can be assessment made under a particular section can be treated as finalised under another section. Section 147-148 deal with re-assessing of income for a particular AY that escapes taxation because of the failure of the assessee or otherwise. Section 153A deals with the matters where action has been taken u/s. 132 or 132A of the Act. Each and every section of the Act has been included in the statue with a specific intention and purpose. The Legislature in its wisdom has introduced various section to regulate the tax collection. So, to assume that one section is re-placable by another is not a logical or legal conclusion. Each section, each ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
