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TMI Blog2023 (10) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... st the person other than the searched person under Section 153C of the Act. Therefore, the right provision of law is also required to be applied in the instant case. Instead the provision laid down under Section 148 of the Act was followed by the Ld. AO in reopening assessment against the assessee. Such wrong initiation of proceeding by issuing notice under Section 148 of the Act culminating into the order of addition under Section 147 of the Act, is, therefore, found to be without any jurisdiction and hence, the same is liable to be set aside. We, therefore, set aside the entire proceeding. It is a trite law that in such a situation it is the duty incumbent upon the Ld. AO to initiate the assessment proceeding under Section 153C of the Act and not under Section 147 of the Act. Thus, initiation of proceeding under Section 148 of the Act in the present fact and circumstances of the case suffers from jurisdictional error. - Shri Chandra Poojari, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Assessee : Shri V. Chandrashekar, Advocate. For the Revenue : Shri. Subramanian. S, JCIT. ORDER PER MADHUMITA ROY, JUDICIAL MEMBER The instant two appeals filed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred appeal before the Hon ble High Court at Karnataka and by and under an order dated 28.10.2022, Hon ble Jurisdictional High Court has been pleased to remit the jurisdictional issue to the file of the Ld. ITAT for adjudication of the same with the following observations: 6. Undisputed facts of the case are, based on the agreement found during the search in the premises of M/s Davanam Jewellers Pvt. Ltd., the assessment was reopened for A.Y 2006-07. The assessment order does not Indicate the procedure followed in re-opening the assessment. In addition protective assessment for A.Y 2007- 08 has also been completed. 7. We have perused the agreement. Shri Chandrashekar is right in his submission that though the agreement is undated, the stamp paper bears the date of purchase as October 9th, 2009. In paragraph 2 of the agreement, the details of the payments are shown. In paragraph 9 of the agreement, it is stated that the possession of the land shall be handed over after execution of the sale deed. In the facts of this case, in the absence of details in the assessment order with regard to the procedure followed and want of reasons whether assessment could be done under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed fact that the Ld. AO relying upon the documents found and impounded during the search conducted under Section 132 of the Act in the case of M/s. Davanam Jewellers Pvt. Ltd. on 02.09.2010 and not search in case of the assessee issued notice under Section 148 of the Act dated 22.03.2013. It is a trite law that in such a situation it is the duty incumbent upon the Ld. AO to initiate the assessment proceeding under Section 153C of the Act and not under Section 147 of the Act. Thus, initiation of proceeding under Section 148 of the Act in the present fact and circumstances of the case suffers from jurisdictional error. On this respect, we have carefully considered the judgment relied upon the assessee in the case of ITO vs. Vikram Sujitkumar Bhatia (supra). While dealing with this particular aspect of the matter, the Hon ble Court has been please to observe as follows: 10.8 Insofar as the submission on behalf of the respective respondents assessees that by way of amendment to Section 153C by Finance Act, 2015, it brings into its fold, the assessees persons, who were not so far covered by it and, therefore, it affects the substantive rights of the assessees and, hence, it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, i.e., Whether the amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of amendment? , is answered in favour of the Revenue and against the assessees and is answered accordingly. Therefore, it is observed and held that the amendment brought to Section 153C of the Act, 1961 vide Finance Act, 2015 shall be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of the amendment. The impugned common judgment and order passed by the High Court, therefore, deserves to be quashed and set aside and is accordingly quashed and set aside. However, as before the High Court respective assessment orders were challenged mainly on the aforesaid issue, which is now answered in favour of the Revenue as above, we reserve the liberty in favour of the respective assessees to challenge the assessment orders before CIT (A) on any other grounds which may be available and it is observed that if said appeals are preferred within four weeks from today, the same be considered in accordance with law and on their own m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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