TaxTMI 
TaxTMI 
2021 (3) TMI 323
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.... section 143(3) r.w.s. 153A of the Act. The assessee filed appeals in respect of all these assessment years before the Tribunal in ITA Nos.1576 to 1581/Bang/2016 and the Tribunal vide order dated 14.07.2017 dismissed the appeals after considering the issues in all these assessment years as follows:- 3. "Ground Nos. 1 to 3 are regarding the violation of principle of natural justice for want of proper opportunity of hearing to the assessee. 4. We have heard the learned Authorised Representative as well as learned Departmental Representative and considered the relevant material on record. The learned Authorised Representative of the assessee has submitted that the CIT (Appeals) has not granted proper opportunity of hearing before passing the impugned order. The learned Authorised Representative of the assessee has referred to the page 3 of the impugned order of the CIT (Appeals) and submitted that the CIT (Appeals) has made an observation that the assessee was not serious in prosecuting the appeal whereas the representative of the assessee appeared before the CIT (Appeals) and made representation with submissions on legal grounds and there was compliance of notice in....
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....ector, Mr. Haseen Taj went to the premise of the appellant and served the notice. The report given by Mr. Haseen Taj, ITI is being reproduced below: Inspector's Report on Service of notices in the case of Mr.Peter Caddy As directed by the Assistant Commissioner of Income Tax, Central Circle-2(1), Bengaluru, I have taken the notices of hearing issued by the Commissioner of Income Tax (Appeal)-11, Bengaluru in the case of Mr.Amit Caddy and Mr.Peter Caddy, on 03/06/2016. As the assessee was not present in the office at the time of serving. I enquired with the office receptionist, she said that Mr, Amit Caddy has not come to office from past six months as he is not keeping good health. Later she introduced one Mr.Chandru, Office Caretaker (Mob:-09980506455), who tried calling assessee, but could not reach as the mobile was switched off. Subsequently he called up to the assessee's auditor Mr.Altaf Hussain (Mob:-984505400) and letter agreed to accept the notice of hearing of Mr. Amit Caddy and Mr.Peter Caddy also, as the case was handled by the same auditor. Hence the notices were served in the office wherein Mr.Chandru, received the notices and gave the acknowledgeme....
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....ed on the assessee by the DCIT, Central Circle 2(1), Bangalore calling for return of income. In response to the Notice under Section 153A, the assessee filed his return of income and copies of returns of income earlier filed. The Assessing Officer consequently completed assessment under Section 143(3) r.w.s 153A of the Act and made the addition on account of unexplained investment on the basis of MOU between Mr. Shanta Kumar (vendor) and the assessee along with Mr. Cherian Abraham (purchaser) which was found and seized during the course of search under Section 132 of the Act. The said MOU was seized vide Annexure A/PC-1/5. Except for the Assessment Year 2007- 08, the additions are made by the Assessing Officer on the basis of seized document for all other assessments. The assessee challenged the action of the Assessing Officer before the CIT (Appeals) and raised the issue of validity of proceedings under Section 153A of the Act. The CIT (Appeals) did not accept the contention of the assessee and rejected the said ground of validity of proceedings under Section 153A of the Act. 9. Before us, the learned Authorised Representative of the assessee has submitted that t....
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....nsaction denied the signature on the MOU therefore, the payment for purchase of the land/properties were made by the assessee. He has further contended that when the various incriminating documents were found and seized during the search disclosing the income in the hand of the assessee then it was the burden on the assessee to prove on record that the payment for purchase of the properties under these seized documents were not made by the assessee but by somebody else. In the absence of such material, record or fact brought on record, the document found during the search remain uncontroverted and therefore the Assessing Officer has established the case that undisclosed income in the hand of the assessee was disclosed by the seized material found during the search. He has relied upon the orders of the authorities below. 11. We have considered the rival submissions as well as the relevant material on record. The assessee is challenging the proceedings initiated under Section 153A on two grounds. Firstly, the search and seizure action was not conducted in the case of the assessee and therefore in the absence of satisfaction recorded by the Assessing Officer in the proceeding....
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....e year the assessment was already completed on the date of search the income has to be reassessed under Section 153A whereas, the assessment pending on the date of search shall abate and the assessment under Section 153A will be considered as a regular assessment. Hence for initiating the proceedings under Section 153A the only requirement is a search and seizure action under Section 132 of the Act conducted in the case of the assessee. The seizure of incriminating material is not at all relevant so far as the initiation of proceedings under Section 153A are concerned. However in the case of reassessment of those assessment whether the assessment was already completed on the date of 'search the Assessing Officer cannot reassess the income by making any addition as assessed in the original assessment without any incriminating material found during the search which unearth undisclosed income of the assessee. Hence the relevance of the incriminating material is only for reassessment framed under Section 153 A in respect of those assessment years which were already completed on the date of search. As far as the assessment under Section 153A in respect of the year(supra)) the assess....
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.... which are falling in the category of reassessment due to the reason that the assessment was already completed on the date of initiation of search under Section 132 of the Act the incriminating material is required for making addition / reassessment. The decisions relied upon by the assessee are all on the point that the Assessing Officer cannot make an addition in the reassessment proceedings under Section 153A / 153C of the Act in the absence of incriminating material disclosing the income in the hand of the assessee. Therefore, those decisions are not relevant on the point of validity of initiation of proceedings under Section 153A of the Act. Hence, we do not find any error or illegality in the action of the Assessing Officer in initiating the proceedings under Section 153A and consequently we uphold the impugned order of CIT(Appeals) qua this issue. 16. Ground Nos.7 to 12 are regarding the additions/reassessments made by the Assessing Officer. 17. We have heard the learned Authorised Representative as well as learned Departmental Representative and considered the relevant material on record. The only submission made before us on behalf of the assessee is that....
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....horities below. Even otherwise when the assessee has already filed a petition under section 154 which is pending adjudication then it is up to the wisdom of the CIT(Appeals) to consider the plea of the assessee as made in the petition filed under section 154. We make it clear that our observation in the present order shall have no bearing on the petition filed by the assessee under section 154 of the Act. 20. So far as the Assessment year 2007-08 is concerned, since there is no addition by the Assessing Officer therefore there is no grievance of the assessee on merits. 21. In the result, the appeals of the assessee are dismissed." 3. In the meanwhile the petition filed by the assessee u/s 154 of the Act were pending before the CIT(A), he disposed of the petition filed u/s 154 of the act for these assessment years by deleting the additions made by A.O. in assessment years 2008-09, 2009-10, 2010-11 & 2012-13. Against this the revenue is in appeal before us by way of following grounds and there is only change in figures in respect of each assessment year: 1. In the facts and circumstances of the case, order passed by the CIT(A) u/s 154 of the IT Act is be....
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....addition made by the A.O. is uncalled for and the opportunity to cross-examine of Mr. Cherian was not given to the respondent. Accordingly, the CIT(A) has rightly deleted the addition. 6. For these and other grounds that may be urged at the time of hearing of the appeal the appellant prays that the appeal may be allowed." 5. Further, CIT(A) in assessment year 2012-13 suo-moto recalled his earlier order dated 29.12.2017 by his order dated 29.6.2018 by observing that he had made a mistake in going through the binding order of the Tribunal dated 14.7.2017. Accordingly, he confirmed the additions made by A.O. in his order for assessment year 2012-13 vide order dated 29.6.2018. Against this assessee once again filed appeal before us. Since this issue in all the appeals are common in nature, we heard all these appeals collectively and disposed of these appeals by way of this common order. 6. The contention of the Ld. D.R. is that assessee in earlier occasion came with an appeal before this Tribunal. The Tribunal vide order dated 14.7.2017 decided the issue both on legally and on merit of the additions against the assessee. At that point of time, the assessee's petition fil....
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....vestment Rs. 2.75 crores 2009-10 Unexplained investment Rs. 6.90 crores 2010-11 Unexplained investment Rs. 5.59 crores 2012-13 Unexplained investment Rs. 12.10 crores 10. The assessee challenged the merit of the additions and also validity of the assessment passed u/s 153A of the Act before CIT(A). Before CIT(A) the assessee has not cooperated and as such the CIT(A) decided the issue against the assessee both validity of the assessment u/s 153A of the Act as well as merit of the additions and sustained the order of the A.O. Once again the assessee went in appeal before the Tribunal. The Tribunal also upheld the order of the lower authorities vide order cited (supra). In the first round at the time of hearing before the Tribunal, the assessee made a point that the assessee's petition filed u/s 154 of the Act in these assessment years were pending before the CIT(A). The Tribunal observed that observations of the Tribunal shall not have any bearing in deciding the pending petitions filed by assessee u/s 154 of the Act. In the meanwhile, the CIT(A) in all these assessment years decided the petition filed u/s 154 of the Act in favour of the assessee dele....
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....154 of the Act. Unless it can be said that there is a blatant and apparent mistake that has crept in the order of the CIT(A), purely based on material facts on record. In the garb of proceedings u/s 154 of the Act, it was not open to the assessee to seek reopening of the order of the CIT(A) by re- arguing whole matter on merit. Unless there is a manifest error which is obvious, clear and evident, the provisions u/s 154 of the Act cannot be resorted to. What can be rectified u/s 154 of the Act is a mistake, which is apparent and blatant. The mistake has to be such for which no elaborate reasons or enquiry is necessary. What is not permitted to be done by the statute having been deliberately omitted to confer review jurisdiction on the CIT(A), cannot be indirectly achieved by recourse to rectification proceedings contains in section 154 of the Act. When error was far from self-evident it ceases to be apparent error. The so called inaccuracies or wrong recording of the facts as alleged were not blatant mistakes which constitute sina-qua- non for exercise of power u/s 154 of the Act by CIT(A). Further, it is seen that the powers conferred by the statute u/s 154 of the Act on the CIT(A)....