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TMI Blog2022 (8) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was A.Y. 2014-15 for present assessee i.e. other person and, therefore, the AO was in treating the present assessment year as year of the search for the other person and thereby the AO was not required to issue u/s. 153C of the Act to the assessee in the present case. We are not in agreement with the contention of the Ld. CIT (DR) that present A.Y. 2014-15 should be taken as year of search for the other person also, therefore, there was no requirement of issuing u/s. 153C of the Act to the assessee before initiating assessment proceedings for A.Y. 2014-15. Thus, impugned assessment as well as first assessment order dated 30.03.2018 and first appellate order dated 14.10.2019 are not sustainable and thus we quash the same accordingly. Ground No. 3 of assessee s appeal is allowed. Impugned assessment year is invalid and without jurisdiction as the said assessment has been completed without complying mandatory legal requirement provision u/s. 143 (2) and, therefore, such assessment is void-ab-initio and liable to be quashed - In the present case we are satisfied that at the time of issuing notice u/s.143 (2) of the Act on 26.10.2015, the AO was only having copy of acknowledgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 the same are admitted for adjudication which read as under : - 1. The impugned assessment is invalid and without jurisdiction as the said assessment is completed without complying with mandatory legal requirements of the provisions of section 143 (2) of the Income Tax Act therefore such assessment is void ab initio and liable to be quashed. 2. On the facts and circumstances of the case and also in law, the impugned assessment order passed by the Ld. AO u/s. 143 (3) of the Act is invalid and void-ab-initio for want of valid notice u/s. 143 (2) as per law as evident from fact that when return in response to notice was admittedly filed on 26.10.2015, the notice u/s. 143 (2) is issued on very same day i.e. 26.10.2015 which shows non application of mind in issuing notice u/s. 143 (2) 3. The impugned assessment order passed is bad in law and void-ab-initio as the same has been passed u/s. 143 (3) of IT Act without complying with provisions of sec 153C of IT Act. 4. The Ld. AO has erred both in law and in facts of the case in not allowing suo moto the deduction of the prior period expenses amounting to Rs. 11,05, 027/- when there is no dispute on the allowability of the same except the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal High Courts of Delhi in the case M/s. BNB Investment Properties Vs. DCIT Ors. reported in 68 ITR 567 (Del.) following the judgment of Delhi High Court in the case of RRJ Securities Ltd. 380 ITR 612 (Delhi) and Pr. CIT Vs. Server Agency Pvt. Ltd. Ors. 397 ITR 400 (Delhi). 11. Replying to the above the Ld. CIT DR submitted that satisfaction u/s. 153 C is required for A.Y. 2008-09 to 2013-14 and not for the impugned A.Y. 2014-15. Further, there is no reliance of any seized documents on the basis of which u/s. 153C satisfaction was recorded. Therefore, the impugned assessment year is a regular assessment year u/s. 143 (3) as there is no reference of any seized documents while making the addition. Therefore, General Power of AO to assess u/s. 143 (3) is not taken away by provision of section 153C, as addition u/s. 153C will be restricted to incriminating documents mentioned in satisfaction Note as propounded by Hon ble Apex Court in the case of CIT III Pune Vs. Sinhgad Technical Education (Supreme Court). Appeal No. 25257 of 2015, 25258 of 2015, 11082 and 11083 of 2017 [(84 taxman.com 290 (SC)]. According, it is prayed that relief should not be given to the assessee on jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment years, therefore, the AO could have assume valid jurisdiction to frame assessment u/s. 143 (3) r.w.s. 153C of the Act only after issuing u/s. 153C of the Act. Therefore, since admittedly no notice u/s. 153C of the Act has been issue by the AO in the present case. The Ld. CIT (DR) in the written submissions has stated that the satisfaction u/s. 153C was from A.Y. 2008-09 to 2013-14 and not for the impugned assessment year 2014-15 and there was no reliance was placed by the AO on any seized document on the basis which u/s. 153C satisfaction was recorded for the impugned assessment year, therefore, impugned year is a regular assessment year u/s. 143 (3) of the Act and therefore, there is no reference in the assessment order to any seized document while making addition are not relevant because it not a case of the assessee that assessment order/ additions should be quashed because the same are not based on any incriminating material. 14. On consideration of argument of the Ld. CIT (DR) we may note that it is not a case of the assessee that the assessment order void in absence of any incriminating material but the legal contention of assessee are of two fold first assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act to the assessee before initiating assessment proceedings for A.Y. 2014- 15. 18. In the case of CIT Vs. Mapsa (supra) in para-6 the coordinate Bench of the Tribunal on the judgment of jurisdictional High Court of Delhi in the case of RRJ Securities Limited (supra) and Pr. CIT Vs. Server Agency Pvt. Ltd. Ors. (Supra) categorically held that in the case of other person the six assessment years for which assessment / reassessment could be made u/s. 153 C of the Act also have to be construed with reference to the date of handing over of the assets / documents to the AO of the assessee i.e. 22.09.2015 in the present case, therefore, present A.Y. 2014-15 would obviously fall within the block period of six years of commencing from A.Y. 2010-11 to 2015-16, therefore, we are compelled to hold that before initiating assessment proceedings for A.Y. 2014-15 the mandatory requirement for the AO was to issue u/s. 153C of the Act to the assessee which is not complied by the AO, therefore, the AO did not assume valid Jurisdiction to pass assessment order for A.Y. 2014-15. 19. Consequently, impugned assessment as well as first assessment order dated 30.03.2018 and first appellate order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no opportunity to apply his mind u/s. 143 (2). But in the present case the AO was having the copy of the return, before issuing notice u/s. 143 (2) of the Act dated 26.10.2015, therefore, the benefit of said judgment is not available for the assessee in the present case 22. Placing rejoinder to the above, the Ld. AR again drew our attention to the page No. 40 of assessee paper book and submitted that the assessee on 26.10.2015 only filed copy of acknowledgment of E-filing of E-return on 29.12.2014 and no copy of return was placed before the AO on 26.10.2015. Thus, the AO without having benefit of perusal and application of mind to the return of income the AO issued u/s. 143(2) of the Act, immediately on the same date on 26.10.2015, therefore, benefit of proposition rendered by the Hon ble Supreme Court in the case of Society for Worldwide Interbank Financial Telecommunications (supra) is available for the assessee in the present case which is on the higher pedestal as in that case the copy of return was given by hand to the AO and immediately the AO gave notice u/s. 143 (2) to the same AR who handed over copy of the return to the AO but in the present case the AO was only having A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim ... (ii) notwithstanding the aforesaid, if the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, he may serve the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, an); evidence on which the assessee may rely in support return. 11. The provisions of section 143(2) make it clear that the notice can only be served after the Assessing Officer has examined the return filed by the assessee. Whereas what paragraph 3.4 indicates is that when the assessee came to file the return, the notice under section 143(2) was served upon the authorized repre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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