AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 1276
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....nces of the case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by ignoring the fact that merely quoting a wrong section will not render assessment order void ab initio and that such mention of a wrong section is a defect curable u/s 292 B of I.T. Act, 1961. ii. Whether on the facts and circumstances of the case, ITAT was justified in dismissing appeal of Revenue by ignoring relevant provision of Section 153(B) (1) (b) where time limit for completion of search assessment for current year i.e. assessment year relevant for the Previous Year in which search is conducted, is laid down which clearly shows that authority to assess or reassess the total income of current assessment year is also derived from provision of Section 153A of I.T.Act, 1961." 4. The facts in brief are that a search and seizure operation under Section 132 of Act, 1961 was conducted on 10.11.2005 at the premises of Sri Raj Kumar Jaiswal, R.D. Associates, Sri Radhey Shayam Jaiswal, Sri Arun Jaiswal, Sri Ravi Jiaswal and Sri Ram Dayal Jaiswal at 28-Joppling Road,Lucknow. Simultaneously, survey under Section 133A of Act, 1961 was also conducted on 10.11.2005 at the premises of M/s Jaisw....
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....h was also deleted observing that total aggregate amount of cash found during search at different places was at Rs. 8,71,695/-, though as per books of account, aggregate comes to Rs. 8,95,391/-. Since there was a difference of only Rs. 23,696/-, which was a petty amount and it cannot be said that any unaccounted cash was available. In fact, cash as per books of account was more than, found actually during search, hence it was deleted. Then Rs. 3,91,831/- claimed to be paid to labours was also deleted, in the light of capital account of Sri Ram Dayal Jaiswal shown to the authority concerned verifying cash withdrawal of Rs. 3,55,000/-. Forth addition was Rs. 48,502/-, which was also found incorrect and CIT (A) did not approve ACIT's findings that said payments were not verified. It held that the expenditure was recorded in the books of accounts and hence addition was bad. However, addition of Rs. 6832/- was confirmed. Then comes the major amount of Rs. 39,21,435/-, which was added on account of un-explained stock. This addition was also deleted by CIT (A) recording following observations: "15.3 I have carefully considered the material available on record. Mainly, it has been sub....
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.... to be quashed since Assessing Officer has no jurisdiction to pass order under Section 153A of Act,1961. 10. Aggrieved by order passed by CIT (A), Revenue filed three appeals before Tribunal i.e. ITA no. 238/Luc/2009, ITA no. 243/Luc/2009 and 234/Luc/2009, which have been decided by impugned judgment. 11. The basic issue raised before Tribunal was jurisdiction of ACIT to make assessment order with respect to A.Y. 2006-07, whether impermissible under Section 153A or not. Tribunal relying on its earlier decision in ITA no. 232/Luc/2009 for the A.Y. 2006-07 decided on 29.05.2009 upheld the view taken by CIT (A) and dismissed Revenue's appeal. 12. Section 153A, as it was applicable when search was carried out on 10.11.2005, reads as under: "153A. Assessment in case of search or requisition.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to ....
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....ceding the assessment year relevant to the preceding year in which such search is conducted or requisition is made. It brings in period from Assessment Years 2000-01 to 2005-06. Earlier, special procedure for assessment of such cases was given in Chapter XIV-B. It is deleted by virtue of Section 158 (BI) inserted by Finance Act, 2003, w.e.f. 01.06.2003. The provisions of Chapter XIV-B have been made inapplicable where search is initiated under Section 132 or books of account, document or any assets are requisitioned under Section 132A after 31.05.2003. Therein concept of ''block assessment' as defined in Section 158B, included the period up to the date of commencement of search or date of requisition in the previous year, the said search was conducted or requisitioned or made, but this is missing in Section 153A. Thus assessment under Section 153A for A.Y. 2006-07 is not sustainable. 14. Learned counsel for appellant is right in saying that mere mention of wrong provision will not take away power, if otherwise vested in authority. In Collector of Central Excise Versus Pradyumna Steel Limited, (1996) 82 ELT 441 (SC) it was said : "It is settled that mere mention of a w....
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....hat provisions of section 143(2) of the Act did not give jurisdiction to make an assessment under section 143(3) but make it obligatory to comply with these provisions before making assessment under section 143(3) or section 144 as the case may be. In view of this difference between the purpose and the result of taking recourse to provisions of section 153A read with section 153C on one hand and issuance of notice under section 143(2) of the Act on the other hand, we are unable to accept the plea advanced by the Ld. D.R. 17. Coming to the merits of the case, we, after having considered the provisions of section 153A, 153B and 153C, are of the opinion that though the provisions 153B(1) (b) provide the limitation for completing the assessment for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A of the Act, but there being no provision as to under which provision of law, the assessee can be called upon to furnish its return for that assessment year only under the provisions of section 139 and it is only in case of failure of the assessee to furnish the return under section 139 that the AO can ca....