TaxTMI 
TaxTMI 
2009 (6) TMI 626
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....n law, the CIT(A) ought to have upheld the order of the AO." 2. The assessee has filed the cross-objections against this raising the following grounds: "1. The learned CIT(A) grossly erred in treating the income as undisclosed income instead of long-term capital gain. 2. The learned CIT(A) further erred in confirming the sale value at Rs. 1.34 crore instead of Rs. 93,72,555. 3. The learned CIT(A) further erred in confirming the disallowance of claim of deduction under s. 54F of the Act. 4. The learned CIT(A) further erred in confirming the disallowance of improvement cost of land. 5. The learned CIT(A) further erred in confirming addition of Rs. 60,000 on account of household expenses." 3. Thereafter the assessee came forward to file independent appeal in ITA No. 141/Ahd/2009 raising the following grounds: "1. On the facts and circumstances of the case as well as law on the subject, the learned AO has erred passing order under s. 153C when no satisfaction was recorded by the AO of the person searched. 2. On the facts and circumstances of the case as well as law on the subject the learned CIT(A) has not entertained the ground regarding the validity of proc....
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....e for issue of notice under s. 153C was not provided. (6) Assessee being a retired person didn't have regular source of income and therefore assessee did not pay the demand. On account of continuous pressure of IT Department for the recovery of demand, assessee approached another firm of chartered accountant namely Rasesh Shah & Associates in the month of January to conduct the appellate proceedings before Hon'ble Tribunal and to file stay application before Hon'ble Tribunal. (7) The partner of Rasesh Shah & Associates, Shri Rasesh Shah, chartered accountant advised assessee to file an appeal before Hon'ble Tribunal raising also the legal ground regarding the validity of assessment made under s. 153C on seeing that notice issued under s. 153C referred satisfaction made by AO of the assessee instead of satisfaction required to be recorded by AO of the person searched. Therefore it was advised by the new chartered accountant firm namely Rasesh Shah & Associates to file belated appeal before Hon'ble Tribunal. (8) Assessee being a retired person and not conversant with the intricacies of the law therefore did not file an appeal initially on the advise of previous chartered acc....
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....as passed for larger area, the consideration would be adjusted accordingly and if it was for less area the transferee will get the benefit, of consideration. As per the first Satakhat the payment was made as per the details mentioned on p. 3. The second Satakhat mentioned the consideration of Rs. 1,17,00,000 against payment were mentioned as per details of p. 3 of the order. The appellant in his statement under s. 131 recorded on 12th Jan., 2005 stated that Satakhat was for Rs. 1,34,00,000 whereas due to dispute in area the consideration agreed was of Rs. 70,27,500. This statement was recorded on 12th Jan., 2005. The appellant had explained that the property was purchased for Rs. 17 lakhs in financial year 1985-86 and accordingly the capital gain was worked out at Rs. 38 lakhs, after considering indexation cost. It is mentioned by the AO that in the course of assessment proceedings the appellant had submitted that the consideration received was of Rs. 93,72,555 and the long-term capital gain was offered at Rs. 33,02,974, after considering the cost of indexation and also deduction under s. 54F. The AO has not accepted this and stated in para 11 of the order that this variation ma....
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....ound and seized, page Nos. 28 to 31 of Annex. A/3 contained Satakhat in respect of sale of plot No. 169 of T.P. Scheme No.4 admeasuring 1,800 sq. yds. As per the Satakhat, the land was to be sold by Shri Vijaybhai M. Vimawala to Shri Subodhbhai M. Sanghvi for a total consideration of Rs. 1,17,00,000. As per the said Satakhat, Shri Vijaybhai M. Vimawala has received, payment of Rs. 70,27,500 on various dates as against the agreed amount of Rs. 1,17,000. 3. Since the documents pertaining to your assessee has been found and seized, necessary action under s. 153C of the Act may be taken at your end. Sd/- ....
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....proceedings for the asst. yr. 1999-2000 is invalid because if reckoned from 23rd Nov., 2006 when the AO of the present assessee was intimated about seizure of documents, then the AO of the present assessee is empowered only to reopen the assessment of the asst. yr. 2001-02 and not of prior assessment years. He invited our attention to s. 153C of the Act and proviso thereof according to which assessment in the case of other person can be reopened as provided under s. 153A of the Act but the date for reckoning of six prior assessment years would be the date when books of account and document were handed over by the AO of the person searched to the AO of the other person in respect of whom books of account/documents/money/bullion/jewellery or valuable articles/things were found. As contrast, the date of reckoning for accounting six prior assessment years would be the date of search in the case of the person searched. 11. According to him the reopening of the assessment under s. 153C of the Act is, therefore, invalid. 12. On the other hand, the learned Departmental Representative submitted that the fact as to when the books of account or documents relating to the present assessee....
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....to the other person to the AO of that other person and the AO of that other person is empowered to proceed against such other person to assess undisclosed income resulting from such money, bullion, jewellery and valuable articles or things, books of account or other documents. 15. The proviso introduced by Finance Act, 2005 w.e.f. 1st June, 2003 makes a change in the date for reckoning the initiation of assessment proceedings of earlier years in the case of other person. In the case of person searched provisions of s. 153A of the Act are applicable. Provisions of sub-s. (1)(b) empowers the AO to assess or reassess total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. Accordingly, the AO can issue notice under s. 153A of the Act for six preceding assessment years following prior to the previous year in which search is conducted. In the present case search in the case of Shri Subodh Sanghvi was conducted on 20th Dec., 2004, then in his case, the AO is empowered to initiate the proceedings for assessment/reassessment for the asst. yrs. 2004-05, 2003-04, 2002-03, 2001-02,....