TaxTMI 
TaxTMI 
2017 (1) TMI 944
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....order u/s. 143(3) r.w.s. 153A. 2. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs. 29,46,650/- on the basis of loose slip found during the course of search at appellant's brother's premises, without appreciating that the said transaction never materialized. 3. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs. 82,075/- being differential value of the amount invested in Mutual Fund and the redemption value when the major income was exempt from tax being Long Term Capital Gain." 2.2 By way of letter dated 07.08.2015, the assessee submits that ground No. 1 of the revised g....
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....page 1 of the order of assessment that the AO initiated assessment proceedings on a factually erroneous basis, i.e. that a search and seizure action under section 132 of the Act was carried out on, among others, the assessee also on 24.02.2009. It is submitted that the correct factual position is that no search under section 132 of the Act was carried out on the assessee's premises on 24.02.2009, but only a survey action under section 133A of the Act was carried out at the assessee's premises on that day. It is contended by the learned A.R. of the assessee that in view of these undisputed facts on record, the AO's assumption of jurisdiction by issue of notice under section 153A of the Act was invalid and therefore it follows that the conseq....
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....in the case of CIT vs. Ramesh D. Patel (2014) 42 taxmann.com 540 (Gujarat), which is stated to be on similar facts. It is prayed that in the light of the admitted and uncontroverted fact that no search under section 132 of the Act was conducted on 24.02.2009 in the case on hand, the notice issued under section 153A of the Act lacking legal sanction, was an invalid notice and order of assessment passed consequent thereto under section 143(3) r.w.s. 153A of the Act for A.Y. 2008-09 is invalid and is to be quashed. 3.2 Per contra, the learned D.R. for Revenue placed reliance on the order of the AO in this regard. It was also contended that in view of the provisions of section 292BB of the Act, even though admitting that issue of the notice un....
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....tion 153A of the Act dated 05.10.2010; which were invalid and required to be quashed. 3.3.2 It is seen from the records before us that the Bench offered Revenue ample/sufficient opportunities to produce the warrant of authorisation issued for conducting search under section 132 of the Act in the case on hand on 24.02.2009 as stated by the AO in the impugned order of assessment. We find that despite these opportunities, revenue failed to produce the same and in report dated 30.11.2016, the AO has only confirmed that as per the Appraisal Report, survey action under section 133A of the Act was carried out at the assessee's business premises on 24.02.2009 and a statement of the assessee was recorded on that day. In this factual matrix of the c....
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.... not. In the absence of any warrant of authorisation to search the assessee's premises under section 132 of the Act, on 24.02.2009, the AO had no jurisdiction to issue the notice under section 153A of the Act dated 05.10.2009 issued by him; thereby rendering it invalid and consequently the orders of assessment passed under section 143(3) r.w.s. 153A of the Act for assessment year 2008-09 subsequent to the issue of that notice under section 153A of the Act could not have been passed and the same is also held to be void abinitio and accordingly cancelled. In coming to this finding we draw support from the decisions of the Hon'ble Gujarat High Court in the case of CIT vs. Ramesh D. Patel (2014) 42 taxmann.com 540 (Gujarat), which is on sim....
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....g contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." From a plain reading of Section 292BB (supra), it is clear that it provides for certain circumstances in which a notice is deemed to be valid. These are where a notice for assessment/reassessment was: (i) not been served upon the assessee; (ii) not been served upon him in time; (iii) served upon him in an improper manner. As per this section, the assessee is precluded from raising any objection in this regard in any proceeding under the Act, if the assessee has appeared in or cooperated in such assessment/inquiry proceeding. This proposition, however, is triggered and holds good/becomes app....