TaxTMI 
TaxTMI 
2016 (11) TMI 875
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....re capital and share premium. The AO issued notice u/s.153C to the assessee on 15-12-2009 and 7-12-2010 for A.Y.2002-03 to 2007-08 commencing the proceedings u/s.153C of the I.T.Act. In the assessment framed u/s.153C r.w.s.143(3), the AO made addition in the assessment year 2005-06 amounting to Rs. 56,70,000/- on account of share premium. However, no additions were made in any of other years covered under the search. 4. By the impugned order, CIT(A) confirmed the action of the AO, against which assessee is in further appeal before us and has raised following grounds :- 1) Learned AO erred in making assessment U/s 143(3) rws 153C. Assessment U/s 143(3) can be made only when the Return of Income has been made by the assessee. If assessee has not filed Return of Income then assessing officer can make an assessment 'of the total income to the best of his judgment U/s 144. Thus when no return of income is filed by the assessee then no assessment can be done U/s 143(3). Learned AO erred in not considering this comprehensive scheme of assessment and wrong in passing order U/s 143(3) even when no return of Income and no explanations etc are filed by the Assessee. &n....
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....red in giving benefit of doubt to the AO instead of giving it to Appellantwho is ready to make statement on oath about non service of any notice U/s 153C etc. Had the notice U/s 153 C dated 15-12-2009 been served on the assessee it must be in the case record' called by CIT Appeals .ClT Appeals does not found any such notice dated 15-12~2009 in the case record called by her neither AO denied the statement of fact made by assessee about non service of notice U/s 153 C etc. In the case record called CIT Appeals found notice dated 7*12 2010 has been served on some V. Jain who is neither the Director nor the principal officer nor the employee of the Company and fact is known to department. CIT appeals erred in not considering that as per procedure prescribed, service of the notice can be said to be valid only if it is served on principal officer of the Company. Normally notice U/s 153 C gives 30 days time period to file return of income but in this case assessment order was said to be passed within 13 days of notice said to be issued on 7-12-2010 and never served. ; 5) CIT appeals erred in not considering the fact that if notice U/s 153 C was served on 15-12-2009, then no ....
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....ut fallowing the principals laid down by judgements various courts. Honable Supreme Court in Manish Maheshwari V Asstt.CIT (2007) 289 ITR 341 held that recording of satisfaction is must. Honable Delhi High Court (2010) 321 ITR 485 in CIT Vs. Anupam sweets also ,held that recording of satisfaction by the AO, having jurisdiction over :he searched person is mandatory. Hon.Delhi High Court in ITA 582/2008-CIT Vs. Radhey Shyam Bansal also held that the recording. of satisfaction by assessing officer of the searched person is a condition precedent. Thus Learned CIT erred in to hold that recording of satisfaction is not required. 8) Learned CIT Appeals erred in considering that by recording the reasons the AO of appellant (instead of the satisfaction of the AO of the person searched C.Kochar) has taken cognizance of the facts of the case in its totality and proceed to take action as per the right section under the income tax act. Receipt of information or document from any AO other than AO of personsearched may give valid ground to initiate proceedings u/s 148 but in no case gives ground to initiate proceedings U/s 153 C as per provisions of that section and various judgments....
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....od transferred from ITO 6(3)(2) to ACIT 6(3) by order dated 23/07/2010 of the CIT 6 Mumbai in exercise of powers conferred by the CBDT by notification no.267 of 2001 dated 17-09-2001. No such notification is available to the assessee at the sight of Department. The order dated 23-07-2010 was never served on the assessee. It is said during course of hearing by CIT Appeals that by notification nO.267 of 2001 dated 17-09-2001, no assessment u/s 153 A can be done by officer below the rank of ACIT and hence the case of assessee is validly transferred by order dated 23-07-2010 but copy of said order was not given and even not shown when demanded during course of appeal hearing by the appellant. The Section 153 A has been inserted from June 1 2003. Hence there cannot be a notification dated 17-09-2001 stating that no assessment U/s 153 A can be done by any officer below the Rank of ACIT. Thus it is clear that the reason for transferring case of assessee from ITO 6(3)(2) does not exists. Learned CIT Appeals erred in non considering submission of the assessee that in case of transfer of case in the same city, the opportunity of hearing in section 127(1) and (2) has been dispensed with....
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....ant had fully disclosed with all necessary documents the receipt of Share application money during course of regular scrutiny assessment for A.Y.2005-06 by I.T.O.6(3)(2). Assessee during course of regular scrutiny assessment filed details of Share applicant there confirmation letters and full addresses, their PAN numbers Copy of Return of Income and Balance sheets and Bank Account statements of share applicant and these papers are always available in case record. Appellant also filed his Bank statement and reconciled the share money received with the Bank statements of-Share Applicants filed during course of Regular Assessment U/s 143(3). Assessee not only filed detailed Bank, statement of Share Applicant but had also filed the Bank statement from where these share applicants had received cheques. Thus assessee had not only given details of receipt of share. money but also filed details of source from where those share applicant had received money. Assessee had thus during original assessment not only proved the source of share money received by it but also proved the source of the source. I.T.0.6(3)(2) 'after" making detailed enquiries accepted the details of share money....
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.... and void. Reliance was placed on the decision of the Supreme Court in the case of Manish Maheshwari 289 ITR 341. Our attention was also invited to application dated 9-4-13, 16-4-13, filed u/s.6 of RTI Act to ACIT-6(3) asking for copy of documents received u/s.153C and the satisfaction recorded u/s.153C transferring the records to the AO of the assessee for all the years. We found that in reply to the RTI application the department has supplied copy of letter of assessee itself dated 23-12-10, however, no proof of any satisfaction having been recorded u/s.153C was supplied to the assessee nor produced before us during the course of hearing. We found that on a further enquiry through RTI the department has supplied copy of the correspondence between Central Circle Nagpur, reason for the reopening u/s.147, postal acknowledgement of letter sent to Central Circle Nagpur and copy of notice u/s.153C dated 14-12-09. 7. We found that the CIT appeals has mentioned in his order that it is not explicitly mentioned in section 153C that the satisfaction is to be recorded by their AO in writing. 8. We have considered rival contentions. The Hon'ble Supreme Court in the case of....