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TMI Blog2025 (3) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... le perused. 6. As noticed above, after search and seizure action u/s 132 of the Act was carried out on 29.03.2018 at the residential premises of the appellant and that of her husband Deepak Samtani; and business premises of the husband of the assessee, and also his family members, , a notice u/s 153A of the Act was issued on 16.07.2019, whereupon the assessee submitted her return of income on 21.09.2019, declaring income of Rs. 1,80,220/-. It was thereafter that notices u/s 143(2) and 142(1) of the Act were issued, and the assessee submitted certain documents as find mentioned in para 4 of the impugned order. 7. Ultimately, the addition was made u/s 68 of the Act on account of the unexplained credits. Arguments & Discussion 8. One of the contentions raised by Ld. AR for the appellant is that since search was carried out only in the case of her husband of the assessee and no search and seizure proceedings u/s 132 of the Act were carried out in the case of the assessee, , the Assessing Officer could not proceed with assessment proceedings u/s 153A of the Act. At the same time, it has been submitted that, at the most, the Assessing Officer could proceed with assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search was conducted s. 153C is to be resorted to-Notice under s. 148 is therefore liable to be quashed" 1.2.3 Principal CIT vs. Saumya Construction (2017) 297 CTR (Guj) 387: (2016) 387 ITR 529 (Guj) 1.2.4 In the case of Dy. CIT vs. Smt. Shivali Mahajan & Ors. (ITA No. 5585/Del/2015), the Tribunal was considering whether books of accounts, money, bullion, jewellery found during the course of search relates to other person than the searched person, can be considered or not while making assessment under s. 153A of the Act (Like in the present appeals, simultaneous searches were carried out at the premises of the other person namely, Shri Deepak Samtani). However, the Tribunal has specifically held that the material recovered from the premises of other persons cannot be used in the hands of the searched person (here the assessee) and for that purpose assessment could be made only under s. 153C or 147. It held as under: "15. Thus, 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 AO of the person searched shall hand over such books of account, documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed payment received by assessee during year under consideration in cash-Assessing Officer had stated that such payments had been made out of undisclosed income of assessee and made addition under section 68-Assessee pleaded that as no document was found from assessee, assessment under section 153A did not stand-Whether since addition had been made on assessee under section 153A assessment on basis of documents found from a separate search at third party, assessment should have been done under section 153C and not under section 153A Held, yes Whether assessment having been made under section 153A and not under section 153C, this being a fatal error in 6/29/24, 7:08 PM 2/14 assessment order which was not curable, order of authorities below was to be set aside Held, yes [Para 26) [In favour of assessee)" 1.2.7 In the case of DCIT vs. BSR Builders Engineers & Contractors in ITA Nos. 732, 733, 734/CHNY/2023, it has been held: "7. After going through the judicial precedents and particularly the decision of Hon'ble Delhi High Court in the case of Anand Kumar Jain, supra, we are of the view that as per the mandate provided by the provisions of section 153C of the Act, the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dy. CIT, (2017), 297 CTR (Del) 574/397ITR 416 (Del): "S. 153A, read with S. 143, of the Income-tax Act, 1961-Assessment in case of search on requisition (General)-Assessment year 2008-09-whether where notice under S. 143(3) was not issued within period of six month from filing of return, return filed would become final and no scrutiny proceedings could be started in respect of said return-Held, yes [para21] [in favour of assessee]" 11. Learned DR has submitted that she stands by the reasons and finding recorded in the order passed by Learned CIT(A) and the impugned assessment. 12. As regards, the ledger seized during search action at the residence i.e. 29, Shindhu Nagar, Bhilwara, and business premises of her husband, Ld. AR for the appellant has submitted that the ledger pertained to M/s Mohan Broker Agency, relating to assessment year 2017-18 i.e. proprietorship concern of her husband, to which she had no concern at all. 13. As per assessment order, the Assessing Officer found from certain documents that the assessee had received a sum of Rs. 50,000/- on 08.05.2014 Rs. 1,90,000/- on 09.05.2014 and Rs. 4,65,000/- on 02.06.2014, from the said proprietorship concern; and that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction to any AO that there is scope of undisclosed income in respect of the third party assessable u/s 153C of the Act. Accordingly, the legal grounds raised in all these appeals of the assessee relating to the validity of the notice u/s 1530 of the Act are allowed in favour of the assessee in respect of all the AYs under consideration. Further, we are of the considered opinion that the adjudication of the other grounds relating to the other legal and merit-oriented issues is merely an academic exercise. Therefore, the relevant grounds in all the four appeals are dismissed as academic." 3.3.1 There are umpteen number of cases including the case of CIT vs. Kabul Chawla (2015) 281 CTR (Del) 45/ (2016) 380 ITR 573 (Del), wherein the Hon'ble Delhi High Court after detailed analysis, has summarized legal position, and the relevant extracts therefrom are extracted herein below: "(v) In absence of any incriminating material, the completed assessment can be reiterated, and the abated assessment or reassessment can be made. The word 'assess' in s. 153A is relatable to abated proceedings (i.e. those pending on the date of search) and the word reassess' to completed assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is required to be assessed. 20. The necessary corollary of the above second proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and, such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In such cases, where the assessments already stand completed, the AO can reopen the assessments or reassessments already made without following the provisions of S.s 147, 148 and 151 of the Act and determine the total income of the assessee." 3.3.3. The law on this aspect is no more Res Integra in as much as very recently the Hon'ble Apex Court in the case of PCIT vs. Abhisar Builders (2023) 332 CTR (SC) 385 has held as under: "13. For the reasons stated hereinabove, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra) and the decisions of the other High Courts taking the view that no addition can be made in respect of the comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it is ledger of M/s Mohan Broker Agency relevant to A. Y. 2017-18 which is a concern of her husband and she is not related with the same. But the relevant documents reflects that on 08.05.2014, 09.05.2014 and 02.06.2014, she had received cash from M/s Mohan Broker Agency respectively of an amount of Rs. 50,000/- Rs. 1,90,000/- and Rs. 4,65,000/-. Out of the earlier given amount by her of Rs. 2,90,000/- during F.Y. 2012-13, she has received back Rs. 8,20,000/- from this concern for which there is no disclosure in her return. The assessee's A/R simply brushed aside the issue by saying that this is only related to M/s Mohan Broker Agency (a concern of her husband, Shri Deepak Samtani), but ignored this issue that she is in receipt of substantial amount of Rs. 8,20,000/ which includes her earlier loan given to this concern of Rs. 2,90,000/- during F.Y. 2012-13. There is no disclosure of these transactions in the return of the assessee filed for A.Y. 2015-16 and the unexplained credits of the balance sum of Rs. 5,30,000/- (Rs. 8,20,000 Rs. 2,90,000) is treated as unexplained cash credit u/s 68 and liable to be added to the income of the assessee for A.Y. 2015-16. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 10.12.2019 by the husband of the assessee, submitted to the Assessing Officer confirming that a sum of Rs. 5,30,000/- was due from him, the proprietor of Mohan Broker Agency, to his wife. 23. Having regard to the subject transactions recorded in the books of accounts of the husband of the appellant and also in the bank statement pertaining to the account of the assessee-appellant, it can safely be said that concerned transactions had already been recorded in the said record. It is not in dispute that after the husband of the assessee-appellant had furnished Income Tax Return in the concerned assessment year, no such step was taken by the Assessing Officer for scrutiny or reassessment. In other words, previously the income disclosed by the husband of the assessee-appellant was not doubted, including the said transactions, which have subsequently been picked up after search and seizure action. There is no explanation from the Department as to why no scrutiny was made regarding the said assessments while processing the ITR furnished by the husband of the assessee-appellant at the relevant time or within the prescribed period of limitation. 24. In the given facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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