2016 (8) TMI 1278 - HC - Income Tax

Court dismisses appeals challenging ITAT order for AY 2001-02 & 2002-03. Section 153A applies only post valid search.

The Commissioner of Income Tax Versus M/s. Balaji Yarn Ltd.

The High Court dismissed both appeals challenging the common order of the Income Tax Appellate Tribunal for Assessment years 2001-02 and 2002-03. The ... Assessment u/s 153A - Tribunal quashing the Assessment Order passed by AO u/s 153A - Held that:- Initiation of a valid search as contemplated under section 132 in the case of a person is a prerequisite to issue notice for making assessment / reassessment under section 153A of the Income tax Act, 1961 in respect of such person. No substantial question of law. Non considering provisions of section 292BB - Held that:- Although normally in law a defect or an omission to serve notice would not be fatal in view of Section 292BB of the Act, the same would not apply in the present facts. This is for the reasons that the Assessing Officer had no jurisdiction to issue notice so as to assess the Respondent Assessee under Section 153A of the Act. Therefore, Section 292BB of the Act would not apply. No substantial question of law. Issues:1. Challenge to the common order of the Income Tax Appellate Tribunal dated 23 May 2013 for Assessment years 2001-02 and 2002-03.2. Validity of quashing the Assessment Order under Section 153A of the Income Tax Act.3. Consideration of provisions of section 292BB of the Income Tax Act, 1961.Analysis:1. The appeals challenged a common order of the Income Tax Appellate Tribunal related to Assessment years 2001-02 and 2002-03. The main contention raised was regarding the justification of quashing the Assessment Order passed by the Assessing Officer under Section 153A of the Income Tax Act and the consideration of the provisions of section 292BB of the Act.2. The Assessing Officer had passed an order under Section 143(3) read with Section 153A of the Act for both Assessment Years. The Commissioner of Income Tax (Appeals) upheld the order, but on further appeal before the Tribunal, it was pointed out that there was no search under Section 132 of the Act but only a survey under Section 133A. The Tribunal held that for the exercise of powers under Section 153A, a search as per Section 132 or requisition under Section 132A is mandatory. Since no search was conducted on the Assessee, the assessment orders were deemed without jurisdiction and bad in law.3. The Tribunal emphasized that Section 153A of the Act applies only to persons in respect of whom a search has been initiated under Section 132 or documents requisitioned under Section 132A. The decision of the Orissa High Court supported this interpretation, stating that the initiation of a valid search as per Section 132 is a prerequisite for issuing a notice for assessment/reassessment under Section 153A.4. Regarding the consideration of provisions of section 292BB, it was noted that while normally a defect or omission in serving notice would not be fatal due to this section, in this case, the Assessing Officer lacked jurisdiction to issue the notice for assessing the Assessee under Section 153A. Therefore, Section 292BB was deemed not applicable in this context.5. Consequently, the High Court dismissed both appeals, as the questions raised did not give rise to any substantial question of law. No costs were awarded in the matter.