AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 1074
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....d not, as was done u/s 143(3) of the Income Tax Act. 2. That without prejudice, on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the action of the Assessing Officer in relying upon the material seized in the case of search on M/s BPTP group of cases despite:- i) that such material had no nexus/relevance with the case of the appellant and, ii) that, the CIT(A) himself holding that such material did not belong to the appellant. 3. That on the facts and circumstances of the case and in law the CIT(A) erred in holding to quote, 'that seized documents definitely prove that interest is paid on PDC' despitei. that the seized record on the basis of which above finding was given, even according to his own finding by the CIT(A), did not belong to the appellant and, ii. that no enquiries were made from any of the alleged recipients of the interest and none was confronted with relevant document(s). 3.1 That the finding of the CIT(A) is based on mere surmises and conjectures without proof and corroboration by independent evidence. 3.2 That without prejudice the CIT(A) erred in upholding the addition of interest for the period for ....
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.... held that the additional payment is made by the Appellant company to the seller of land on account of enhanced rate of land at the time of realization of post dated cheques. However, he held that additional payment made to the owner of the land or to his relatives who have some legal claim over such land paid by way of account payee cheque is allowable as expenditure under Section 37 of the Act. With respect to other payment, he held that if any legal right does not support such payments over the land, it is not allowable, and he confirmed disallowance of such payment. 06. Before the ld. CIT (Appeals) assessee also challenged against the assumption of jurisdiction for passing assessment order under Section 143(3) of the Act. The claim of the assessee is that Assessing Officer has utilized the documents seized at the premises of BPTP Group during search proceedings under Section 132 of the Act, which are belonging to the assessee. Therefore, the right course of action that should have been to invoke the provisions of Section 153C of the Act instead of passing an assessment order under Section 143(3) of the Act. The assessee further supported the same with the decision of the Hon'b....
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....ould have invoked Sec 153C without which no addition can be made on the basis of seized material. In my view, these judicial pronouncements is not applicable on the case where seized material is not belonging to other persons but inference can be drawn for generation income either direct or deemed or disallowance of expense in the hand of other person. Therefore, as discussed above, the argument of ld. AR is not accepted on challenging jurisdiction of A.O. for making assessment u/s 143(3). Accordingly this ground is dismissed." 07. Therefore, now assessee and Revenue both are in appeal before us. 08. First coming to the appeal of the assessee wherein Ground No. 1 challenges that the action should have been taken under Section 153C and not u/s 143(3) of the Act. The ld. AR submitted that a search under Section 132 was carried out on 15.11.2007 on BPTP Company. However, no search was carried out on the assessee. The assessee filed its return of income for Assessment Year 2007-08 on 23.10.2007. He referred to para Nos. 5.2 and 5.3 of the order of the ld. CIT (Appeals) wherein it has been held that the ld. AO has utilized the documents seized in the course of that search. CIT (Appea....
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.... this issue. He further submitted the copies of the orders of the CIT (Appeals) at page Nos. 197 to 228 of the paper book. In view of this, he submitted that on this jurisdictional ground the appeal of the assessee should be allowed. 10. He also referred from his submission as under :- "5. The CIT(A) upheld the assessment made u/s 143(3) by giving the following solitary reason in paras 5.2.2 & 5.3:- Para 5.2.2 "Undoubtedly AO has utilized the document seized from the premise of BPTP Ltd and Group companies. However, the assessment order nowhere mentions that any part of the seized material belong to the appellant company" Para 5.3 "Nowhere finding has been given by the Assessing Officer that certain seized material belongs to the appellant company" 6.1 The CIT(A), it is respectfully submitted, went totally incorrect on facts as we shall demonstrate in some details hereunder: 6.2 The appellant filed copies of all seized documents used, referred and relied by Assessing Officer before CIT(A) during the course of first appellate proceedings. 6.3 The CIT(A) has dealt with each and every document which relates to issue of interest paid on PDCs in para 6.3 of his o....
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....by M/s Shalimar Town Planners Pvt. Ltd instead of various other companies including assessee. Beside seized document Page 14, Annexure-A-1, Party BO-III, the AO has used, referred and relied upon the following seized documents in assessment order which mention name of appellant. Page 70, Annexure-A-1, Party BO-I of the seized document is at page 93 of Paper Book." 11. The ld. DR vehemently submitted that in case of a group concern Remarkable Estate Pvt. Ltd., the ITAT decision dated 15.02.2017 clearly covers the issue against the assessee wherein identical ground was raised and it was dismissed. 12. The ld AR in rejoinder submitted that in ITA. No. 1747 (Del) of 2013 for Assessment Year 2006-07 though identical ground was raised, however, it were not challenged and, therefore, it does not lay down any precedence. 13. We have carefully considered the rival contentions and orders of the learned that lower authorities. Admittedly, assessment in challenge before us has been passed under the provisions of Section 143 (3) of the income tax act. According to provisions of Section 153C of the act, it is provided that where the assessing officer is satisfied that any books of account....
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....t. 14. Before us the learned authorised representative has placed copies of the order of CIT - A in case of Anjali Promoters And Developers Private Limited for assessment year 2007 - 08 in appeal number 525/09 - 10/313 dated 27/05/2013, Appeal Number 438 - 0809 - 234 dated 28/11/2012 in case of Poonam Promoters And Developers Private Limited for assessment year 2006 - 07, order of the learned CIT - A in appeal number 436/08/09/232 dated 28/11/2012 in case of Countrywide promoters private limited for assessment year 2006 - 07 and order of the learned CIT - A in appeal number 490/09 - 10/279 dated 27/5/2013 in case of Super Belts private limited for assessment year 2007 - 08. In all these cases the learned CIT - A has held that the assessment should have been passed u/s 153C of the income tax act instead of u/s 143 (3) of the act. These orders have been passed by the same Commissioner of income tax (appeals) who passed the order in case of the assessee holding an altogether different view that on the similar documents seized, the assessment has correctly been made by the learned assessing officer u/s 143 (3) of the act. It is stated before us that the revenue against the orders of t....
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....same principle-namely, that of a setting to rest rights of litigants, applies to the case where a point, fundamental to the decision taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken." These observations were made in a case where taxation was in issue. This Court in Parashuram Pottery Works Co. Ltd. vs. ITO 1977 CTR (SC) 32: (1977) 106 ITR 1 (SC) stated: "At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasijudicial controversies as it must in other spheres of human activity." Assessments are certainly quasi-judicial and these observations equally apply. 9. We are aware of the fact that, strictly speaking, res judicata does not apply to IT proceedings. Again, each assessment year being a unit, what is decided in one year may not apply....