TaxTMI 
TaxTMI 
2018 (2) TMI 1830
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....ce u/s.148 was issued. 03. In the assessment order it was mentioned that during the course of survey on 13.06.2011 the assessee was confronted with the document marked as AK/PDP/17 seized from the residence of Adelne Kagoo, related to one Dr. Dayanand Pai.The said document was confronted to the assessee during the course of survey as there is a description of giving an amount of Rs. 2.60 to the assessee. In response thereto, the assessee has submitted that he has not given an amount of Rs. 2.60 crores as written in the document seized but his relative has given an amount of Rs. 1.85 crores at various point of time to Dr. Dayanand Pai for short-term deposits and the said amount was received back after some time. However the AO was not convinced with the reasoning given by the assessee and accordingly made addition for an amount of Rs. 65 lakhs for the AY 2010-11 and an amount of Rs. 1.30 lakhs for AY 2011-12 and Rs. 12 lakhs as long-term capital gains for AY 2011-12. Feeling aggrieved by the order assessee filed appeal before the CIT (A). The CIT (A) had examined this issue and had held as mentioned in para 3.8 to 3.10, as under : 3.8 I hav e car e ful l y cons ide r ed ....
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....jurisdictional High Court in the matter of Gudwill Housing Ltd v. ITO [(2014) 45 taxmann.com 144] wherein in paras 5 & 6 the Hon'ble jurisdictional High Court has held as under : 5. It is true that Section 158BD states that where the Assessing Officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under Section 132, then the books of accounts, other documents or assets seized shall be handed over to the Assessing Officer having jurisdiction over such other person and that the Assessing Officer shall proceed under Section 158BC against such other person and the provisions of these Chapter shall apply accordingly. This provision by itself, in our opinion, is not sufficient to hold that the Assessing Officer, on the facts and in the circumstances, as occurred in the present case, could not have proceeded against the assessee under Section 147 by issuing notice under Section 148 of the Act. This provision fell for consideration of the Delhi High Court and the Allahabad High Court. The Allahabad High Court in CIT v. Abhyudaya Builders (P.) Ltd. [2012] 340 ITR 310/20 taxmann.com 851 was considering not o....
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....l, the assessee did not make any grievance whatsoever. Even before the Tribunal, though the ground of jurisdiction was raised, it was not seriously pressed by learned counsel appearing for the assessee and in this view of the matter, the Tribunal proceeded to consider merits of the case. In the present appeal, the appellant chose to confine its challenge only on the ground of jurisdiction and did not raise challenge on merits. In this backdrop, we find no reason to interfere with the order passed by the Tribunal. We are satisfied that the Assessing Officer has option to proceed against the assessee by issuing notice under Section 148 of the Act in a situation as occurred in the present case. Hence, we answer the substantial questions of law as formulated by this Court vide order dated 29.01.2008 against the assessee and in favour of the Revenue. 05. Per contra the Ld. AR has brought to our notice the decision rendered by the Delhi Tribunal in the matter of Rajat Shubra Chatterji v. ACIT [ITA.2430/Del/2015, dt.20.05.2016] in para 7 the Tribunal has held as under : 7. On having gone through the decisions cited above especially the decision of Amritsar Bench in the case of....
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....dy noted hereinabove that the documents were seized during the search under s. 132 of the Act and the same were sent to the assessee's AO at Amritsar by the officer at Delhi in our view, the learned CIT(A) has correctly observed that only the provision in which any assessment could be made against the assessee in the IT Act was s. 153C r/w s. 153A of the Act. It is also apparent from the record that the officer at Delhi has mentioned in his letter that the necessary action may be taken as per law under s. 153C/148 of the Act. Hence, notice issued under s. 148 of the Act and proceedings under s. 147 of the Act by the AO are illegal and void ab initio. In view of the provisions of s. 153C of the Act, s. 147/148 stands ousted. In the instant case, the procedure laid down under s. 153C has not been followed by the AO and, therefore, assessment has become invalid. We also observe that the CIT(A) was justified in following the ratio laid down by the Hon'ble Supreme Court in the case of Manish Maheshwari v. Asstt. CIT [2007] 289 ITR 341 / 159 Taxman 258 wherein it has been held that if the procedure laid down in s. 158BD is not followed, block assessment proceedings would be illeg....
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....the finding of the CIT(A) is in accordance with law, as the proceeding should have been initiated under section 153C of the Act, as it were based on material found during the search from the premises of searched person other than assessee and not under section 148 of the Act. Further we are of the opinion that this issue raised by the parties is no more res integra as the coordinate bench in the matter of G. Koteshwara Rao v. DCIT [(2015) 64 taxmann.com 159] in para 11 to 14 has held as under : 11. A careful study of section 153A to 153C and also the circular issued by the CBDT explaining the procedure of assessment in search cases, it shows that these are separate provisions independent of other provisions relating to reassessment, because of the non obstante clause begins with the said sections. The language used in these sections, i.e. 'notwithstanding anything contained' in section 139, section 147, section 148, section 149, section 151 and section 153 made it clear that provisions of these sections are not made applicable to the assessments covered by the provisions of section 153A. Prior to the introduction of these three sections, there was a separate chapte....
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....nt, other documents or any other asset are requisitioned under section 132A. Therefore, we are of the opinion that though, the Assessing Officer from both sections empowered to tax the income escaped from tax, both are works in a different situations, i.e. section 147 comes in to operation where there is an escapement of income chargeable to tax and section 153A comes in to operation where there is search u/s 132. 13. Under the provisions of section 153A, the Assessing Officer is bound to issue notice to the assessee to furnish the returns of income for each assessment years falling within the six assessment years immediately preceding the assessment year in which search or requisition is made. Another significant feature of this section is that the Assessing Officer is empowered to assess or reassess the total income of the aforesaid period which includes disclosed and undisclosed income. Therefore, the new provisions has given wide powers to the Assessing Officer to assess or reassess the total income of six assessment years falling within the period of those six assessment years immediately preceding the assessment year in which search is conducted. Under the new provis....