TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1463
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....s of the case. 3. The order of assessment passed by the learned assessing officer under Section 143[3] r.w.s 147 of the Act is bad in law for want of requisite jurisdiction for the following reasons: (a) The very initiation of proceedings u/s 147 is bad in law in as much as the assessment proceeding, if warranted, ought to have been initiated u/s. 153C of the Act under the facts and circumstances of the case; (b) Proceedings u/s 147 are commenced based on borrowed satisfaction; (c) The notice issued by the learned assessing officer u/s 148 of the Act proposing to 'Reassess" income of the Appellant is bad in law under the facts Et circumstances of the case, consequently rendering the assessment void ab initio; (d) Even reassessment proceedings in search cases where incriminating material is found, the same has to be taken up under the provisions of 153A not u/s 147 of the Act. (e) No speaking order disposing off the objections to Reasons Recorded has been passed; (f) The Reasons to Reopen are merely Reasons to Suspect Et not Reasons to Believe on the facts and circumstances of the Appellant's case; (g) Order is passed without giving reasonable opportunity to the ....
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....the AO for reopening are available on page no. 8 of the paper book as per which it is stated by the AO that information was received from The Deputy Commissioner of Income Tax, Central Circle, Noida vide letter dated 29.03.2016 to the effect that in course of assessment proceedings u/s. 153A of the IT Act in the case of Shri Rajinder Paul Jindal, it came to notice that Shri Ashok Kumar Garg has made payment of Rs. 12 Lakhs in cash to M/s. Aishwarya Home Developers & Builders vide receipt dated 07.08.2008 and on the basis of this, the AO has stated that he has reason to believe that income escaped assessment. He further submitted that the copy of the said letter dated 29.03.2016 issued by DCIT, Central Circle, Noida is available on page no. 5 of the paper book and on page no. 6 of the paper book is the photocopy of the receipt issued by M/s. Aishwarya Home Developers & Builders. He submitted that under these facts, the Tribunal order rendered in the case of ACIT Vs. Shri Srinivas Rao Hoskote in ITA Nos. 1154 & 1155/Bang/2015 dated 21.02.2018 is applicable and my attention was drawn to para no. 6 of this Tribunal order and it was pointed out that in this para, the Tribunal has consid....
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.... the documents seized in the present case i.e. the receipt regarding cash payment by the assessee available on page no. 6 of the paper book is not belonging to the assessee. In my considered opinion, this observation of the AO is not correct because if the sale deed is belonging to the buyer, then the receipt issued by any receiver is belonging to the payer and not to the receiver and hence, in the facts of present case, the seized material is belonging to the present assessee. 7. Now I examine the applicability of this Tribunal order rendered in the case of ACIT Vs. Shri Srinivas Rao Hoskote (supra). Para 6 of this Tribunal order is relevant and hence, the same is reproduced hereinbelow for ready reference. "06. We have heard the rival contentions and perused the record. In our view the scope of Section 153C and 148 are clear from the bare reading of the two provisions insomuch as Section 153C it starts with 'Notwithstanding nothing containing in Section 139, 147, 148, 149, 151 and 153'. Thus if there is any contradiction between Sections 153C and 148 ,in that eventuality, Section 148 shall give way to Section 153C. There is a reason for saying so because if a notice u/....
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....o assess or reassess the total income of each of the assessment years falling within the period of six assessment years immediately preceding the assessment year in which the search is conducted. Therefore, under the new scheme, the Assessing Officer is required to exercise the normal assessment powers in respect of the previous year in which the search took place. From these facts, one thing is clearly emerged that both i.e. earlier concept of Block assessment and the new scheme of assessment is separate provisions created for assessment of search cases where the search is conducted u/s 132 or requisition was made u/s 132A of the Act. 12. Under the provisions of section 147, the Assessing Officer is having power to re-open the assessment, if he is of the opinion that the income chargeable to tax has escaped assessment. Before doing so, the Assessing Officer should satisfy himself that, there is material which suggests that there is an escapement of income. The AO can exercise these powers with a reasonable belief coupled with some material which suggest the escapement of income. Once the conditions precedent for assumption of jurisdiction to commence the reassessment proceedin....
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....Assessing Officer has reopened the assessment based on a search conducted in a third party case. The AO formed the opinion based on the statement recorded from the assessee, consequent to post search proceedings taken up by the DDIT(Inv), which shows undisclosed income which is the very basis of reopening the assessment. The search is conducted on 22-8-2008 which comes under the assessment year 2009-10. The Assessing Officer reopened the assessment year 2008- 09, which is falling within those six assessment years immediately preceding the assessment year in which search is conducted. The assessee case falls within the provisions of section 153C, as the incriminating document seized in the case of search in another case. The Assessing Officer, on satisfying the above condition is under obligation to issue notice to the person requiring him to furnish the return for the six assessment years immediately preceding the assessment year in which search is took place. Thereafter, the Assessing Officer has to assess or reassess the total income of those six assessment years. The word "shall" used in section 153A made it clear that the Assessing Officer has no option, but to issue notice and....