TaxTMI 
TaxTMI 
2021 (4) TMI 257
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before A.O, but, the A.O. was not satisfied with the explanation of assessee. The A.O. noted that same issue was considered in A.Y. 2012-2013 in which the Ld. CIT(A) has deleted the addition of Rs. 38,61,24,029/- and the appeal of the Department is filed before the Tribunal. The A.O. considering the explanation of assessee, made addition of Rs. 73,86,427/- on account of long term capital gains and also made addition of Rs. 12,45,000/- under section 68 of the I.T. Act on account of agricultural income. The A.O. passed the assessment order under section 143(3) Dated 22.01.2016. The assessee challenged both the additions before the Ld. CIT(A). The Ld. CIT(A) partly allowed the appeal of assessee. 4. The assessee in the present appeal has raised the following additional grounds : a) "The A.O. has erred in assuming and assessing the impugned year as year of search, ignoring that the year of search for the present assessee would be AY 2014-15, as the documents pertaining to present assessee were received on 29.08.2013, as is evident from the assessment order. b) On the facts and under the circumstances of the case the assessment of the impugned year, without following the mandatory....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e has submitted that no satisfaction note have been recorded in the case of the person searched, therefore, assessment order is invalid and bad in Law. He has submitted that it is an admitted fact that documents pertaining to assessee had been transferred to the A.O. of Central Circle on 29.08.2013. Hence, as per the First proviso to Section 153C of the I.T. Act the date of search in the case of assessee would be 29.08.2013 which would fall in A.Y. 2014-2015, therefore, the previous six years period would have to be reckoned from this date which would mean the relevant assessment year of the search in the case of assessee would be from A.Ys. 2008-2009 to 2013-2014. He has submitted that the A.O. instead of passing the Order under section 153C of the I.T. Act passed the assessment order under section 143(3) of the I.T. Act, 1961 which is illegal and bad in Law. He has submitted that the same issue have been considered by ITAT, Delhi G-Bench, Delhi in the case of the same assessee for preceding A.Y. 2012-2013 in ITA.No.2550/Del./2015 and C.O.No.146/Del./2018 vide Order Dated 09.08.2019 and cross-objection of the Assessee has been allowed and Departmental appeal have been dismissed. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to in the written submissions. 9. We have considered the rival submissions and perused the material on record. The A.O. in response to the RTI Application reported to the assessee vide letter Dated 20.05.2020 that as per the record available in his Office the satisfaction note recorded by assuming jurisdiction in the case of the assessee under section 153C in the case of M/s. Venta Realtech Pvt. Ltd., [Formerly known as M/s. Krrish Realty Nirman Pvt. Ltd., ] has not been found. The ITAT, Delhi Bench in the case of the assessee in Departmental Appeal and Cross Objection vide Order Dated 08.09.2019 considered the identical issue and declared the assessment order to be null and void. The Cross Objection of the Assessee is allowed and Departmental Appeal is dismissed. The Order of the Tribunal Dated 09.08.2019 (supra) is reproduced as under : "IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "G" NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI L. P. SAHU, ACCOUNTANT MEMBER I.T.A. No.2550/DEL/2015 Assessment Year: 2012-13 DCIT, Central Circle-1, Faridabad. vs. Vinod Kumar, H. No.267, Ist Floor, Chhatarpur Enclave, Mehrauli, New Delhi. TAN/PAN: AALPK 7391K ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is an individual deriving income from salary, house property and other sources. Return of income for the Assessment Year 2012-13 was filed on 06.10.2012, declaring total income of Rs. 1,12,01,410/-. A search and seizure action was conducted by the Investigation Wing, Chandigarh at Krrish Group on 09.11.2011. Thereafter, a survey action u/s.133A was also carried out on 05.11.2011 at the business premises of the assessee and his company M/s. Ambawata Buildwell Pvt. Ltd. As culled out from the assessment order, the assignment of jurisdiction over the assessee was transferred to CIT, Central Gurgaon, vide order dated 12.08.2013, who transferred the case to Assessing Officer of Central Circle-1, Faridabad and the seized documents were received in the same Central Circle on 29.08.2013. Thereafter, the Assessing Officer in paragraph 2 had taken note of the fact that in the present year the provision of Section 153A(1)(a) r.w.s. 153C of the Act are applicable, treating it to be the year of search. Accordingly, a notice were issued to the assessee u/s.142(1) requiring him to file his return of income in respect of Assessment Year 2012-13, i.e., assessment year pertaining to year in which su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmitted that documents pertaining to assessee were handed over to the Assessing Officer after 29.08.2013. Accordingly, in terms of proviso to Section 153C the date of search in the case of the present assessee would be reckoned from 29.08.2013, which date falls under Assessment Year 2013-14. He further pointed out that by virtue of 1st proviso to Section 153C, the date of handing over the document would become the date of search in the case of other person and previous six years would have to be reckoned from this date which means the relevant assessment year of search in this case would be Assessment year 2013-14, (i.e., from 29.08.2013) and six previous assessment years would start from Assessment Years 2007-08 to 2012-13. Thus, the present assessment framed by the Assessing Officer under provision of the Act is void ab initio as the same has been passed without following the mandatory provision of Section 153C. In support, he strongly relied upon the judgment of Hon'ble Jurisdictional High Court in the case CIT vs. RRJ Securities Ltd. (2016) 380 ITR 612 and Pr. CIT vs. Sarwar Agencies Pvt. Ltd., 340 ITR 400. He pointed out that the same principle has been followed by the co-ordi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the guidance of the Hon'ble Court and hence proper appreciation of law was not done. 9. He further referred to the judgment of Hon'ble Delhi High Court in the case of Ganpati Fincap Services P. Ltd. vs. CIT (2017) 82 taxmann.com 408 (Delhi) wherein their Lordships have summarized the legal position as under: "41. To summarise the legal position: (i) No search under Section 132(1) of the Act can be initiated without a satisfaction note being recorded by the AO of such searched person. This is followed by issuance of a notice to such searched person under Section 153A of the Act. At that stage the AO does not have to record another satisfaction note qua the searched person. (ii) Where proceedings are proposed to be initiated under Section 153C of the Act against the 'other person', it has to be preceded by a satisfaction note by the AO of the searched person. He will record in this satisfaction note that the seized document belongs to the other person. Depending on the nature and contents of the document he may be required to give some reasons for such conclusion. (iii) Where the AO of the searched person is different from the AO of the other person, the AO ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person:]." The 2nd proviso to Section 153A (1) reads as under : "Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this [sub-section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate." 12. The controversy, whether in the wake of 2nd proviso to Section 153C the date of initiation of search u/s.132 should be from the date of receiving of books of account or documents etc. by the Assessing Officer having jurisdiction over such person had come up before the Hon'ble Jurisdictional High Court in the case of R.R. Securities (supra). This judgment has been again reiterated and followed by the Hon'ble Jurisdictional High Court in the case of Pr. CIT vs. Sarwar Agencies (supra) wherein their Lordships have explained the said provisions considering the amendment in section 153C by the Finance Act, 2017 with effect from April 1, 2017, in the following ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....k place on November 11, 2010 in the T group of cases. The documents pertaining to the assessee were forwarded along with a satisfaction note by the Assessing Officer of the party in respect of which the search was conducted to the Assessing Officer of the*assessee on January 3, 2013. The Assessing Officer of the assessee issued notice to the assessee under section 153C of the Act on January 4,2013 for the assessment year 2006-07. The Tribunal held that the notice issued to the assessee under section 153C of the Act for the assessment year 2006-07, was without jurisdiction since the assessment year was beyond the purview of issuance of notice in terms of the provision under section 153C of the Act. On appeal: Held accordingly, dismissing the appeal, that the Tribunal was justified in holding that the notice issued to the assessee under section 153C of the Act for the assessment year 2006-07 was without jurisdiction since the assessment year was beyond the purview of issuance of notice in terms of the provision." 13. The ratio of the judgments of Hon'ble Jurisdictional High Court has been applied in a similar group matters pertaining to the same search for the Assessment Year 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee under section 153C of the I.T. Act. The assessment order, therefore, vitiate, void, illegal and bad in law and cannot be sustained. The contention of the Ld. D.R. have already taken care in the above judgments." 14. The aforesaid findings and the observation of the Tribunal will apply mutatis mutandis in this case also, as the facts and circumstances are pari materia and even the sequence of events. Accordingly following the aforesaid precedent, we hold that the impugned Assessment Year 2012-13 cannot be treated as year of search, and therefore, assessment could not have been framed u/s.143(3) r.w.s. 153B(1) and accordingly, assessment order passed by the Assessing Officer is declared null and void and consequently the Cross Objection of the assessee is allowed. 15. Since, we have already held that assessment order is not in accordance with law, therefore, the issue raised on merits by the Department has become purely infructuous and same is dismissed. 16. In the result, the appeal of the Revenue is dismissed and Cross Objection of the assessee is allowed." 9.1. It is not in dispute from the above facts that search and seizure action was conducted in M/s. Krrish Realty....