9911796707
TMI Blog2024 (10) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... a Gupta [ 2024 (7) TMI 1133 - ITAT DELHI] Therefore the assessment order passed u/s 143(3) of the Act is bad in law and liable to be quashed and quashed accordingly. Appeal of assessee is allowed. - Sh. S. Rifaur Rahman, Accountant Member And Sh. Sudhir Kumar, Judicial Member For the Appellant : Sh. Ved Jain, Advocate, Sh. Aman Garg, CA For the Respondent : Ms. Sapna Bhatia, CIT DR ORDER PER SUDHIR KUMAR, JM: This appeal by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)/NFAC, Delhi [hereinafter referred to as CIT(A) ] vide order dated 20.02.2024 pertaining to A.Y. 2021-22 arises out of the assessment order dated 27.12.2022 under section 143(3) of the IT Act, 1961 of the Income Tax Act 1961 [hereinafter referred as the Act ]. 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 learned CIT(A) has erred, both on facts and in law, in confirming the action of the AO despite the fact that order passed by the AO under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) That the abovesaid addition has been confirmed rejecting the detailed submissions and explanations along with the evidences brought on record by the assessee in this regard. 9. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the abovesaid addition despite the fact that the same has been made by the AO on the basis of image extracted from the whatsapp chats between the third parties and not related to the assessee. 10. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the documents relied upon by the AO does not contain the signatures and is a dumb and shall not be relied upon. 11. The appellant craves leave to add, amend or alter any of the grounds of appeal. 3. The assessee has raised additional grounds of appeal :- 1. The applicant has filed the above said appeal No. 1334/Del/2024 on 26th March, 2024 against the order dated 20.02.2024 passed by the learned Commissioner of Income Tax (Appeals)-30, New Delhi under Section 250 of the Income Tax Act. 2. That while filing the appeal, the applicant has raised 11 grounds of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction will be the deemed date for the possession of the seized documents, which is 30.06.2022 in the present case and the date of search and six years period would be reckoned from this date 1.0.30.06.2022. Therefore, there is merit in the submission of the assessee that the assessment year relevant for previous year in which search was conducted in the case of the assessee will be AY 2023-24 and the six assessment years immediately preceding the assessment year relevant for the previous year in which search was conducted for initiating proceeding u/s 153C of the Act will be AY 2018-19 to 2022-23. Therefore, respectfully following the decision of the cited case, it is held that in the present case, the assessment for AY 2021-22 should have been carried out by issuing notice u/s 153C of the Act and not u/s 143(2) of the Act as done by the AO in this case. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. 11. Firstly, we take up the additional ground for adjudication which goes to the root of the matter as it challenges the legality of the order u/s. 143(3) dated 29-12-2022 of the Act. These additional grounds were not raised before the Ld CIT(A) nor the similar plea was taken before the AO but the additional grounds are purely legal and all the facts of the case are on record, therefore, the same is admitted in view of the decision of the Hon ble Apex Court in the case of National Thermal Power Corporation {1998} 229 ITR 383 (SC) and is hereby adjudicated. 12. On perusal of the satisfaction note it reveals that same was recorded on 10-10-2022 by the AO after giving the findings that the seized assets and documents /digital data and information relates to assessee and it is a fit case for initiating proceedings u/s 153C r.w.s153A of the Act for the A.Y. 2015-16 to 2020-21. The AO has issued the notice u/s. 143(2) of the Act. On the similar facts, the coordinate Bench of the Tribunal in the case of Jasjit Singh (supra), it was held that the date of receiving of the seizes documents would become the date of search and six years period would be reckoned from this date. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section) pending on the date of initiation of the search u/s 132 or making of requisition u/s 132A, as the case may be, shall abate. 21. From the above, it is evident that as per clause (b) of subsection (1) of section 153A and second proviso, the AO can be issue notice for assessment or reassessment of total six assessment years immediately preceding the assessment year relevant to previous year in which search is conducted. As per proviso to section 153C, the date of search is to be substituted by the date of receiving the books of account or documents or assets seized by the AO having jurisdiction over such other person. Ld. DR has stated that since the AO of the person searched and the AO of such other person was the same, no handing over or taking over of the document was required. That section 153C(1) and its proviso have to be read together in a harmonious manner. While interpreting section 153C, we have already held that for initiating valid jurisdiction u/s 153C, even if the AO of the person searched and the AO of such other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground has been answered in favour of the assessee, by the Coordinate Delhi Bench of the Tribunal in the case of DSL Properties (supra). 17. So far as decision of Hon'ble Delhi High Court in the case of SSP Aviation Ltd. vs. DCIT (supra) relied upon by the Id. CIT(DR) is concerned, we find that it is not helpful to the revenue as in that case also in para no. 14 of the judgment it has been held as under. 14. Now there can be a situation when during the search conducted on one person u/s 132, some documents or valuable assets or books of account belonging to some other person, in whose case the search is not conducted, may be found. In such case, the AO has to first be satisfied u/s 153C, which provides for the assessment of income of any other person, Le., any other person who is not covered by the search, that the books of account or other valuable article or document belongs to the other person (person other than the one searched). He shall hand over the valuable article or books of account or document to the AO having jurisdiction over the other person. Thereafter, the AO having jurisdiction over the other person has to proceed against him and issue notice to that person in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
