2023 (6) TMI 79

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....ether and disposed off in this consolidated order. 2. At the outset, the Ld. Authorized Representative brought to our notice that in all these appeals there is a delay of 270 days in filing the appeal before the Tribunal. Further, the Ld. AR drew our attention to the petition dated 4/5/2022 filed by the assessee seeking condonation of delay and read out the contents of the petition which is extracted herein below for reference: "1. With respect to the above the appellant submits that the order of the Hon'ble CIT(A)-3 dismissing appellant's appeal was received on 31/3/2021 and the time limit for preferring an appeal in Hon'ble ITAT-Visakhapatnam expired on 30/05/2021. However, the appeal was filed on 24.2.2022. In this process there was a delay of 270 days. 2. In this regard, the appellant relies on the decision of the Hon'ble Supreme Court dated 10/01/2022. Para 5(I) of the order mentions that period from 15/3/2020 till 28/2/2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Further, para 5(III) of the order reads as under:- "In cases where the limitation ....

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....tions, it was noticed that M/s. Apex Frozen Foods Ltd., has paid an insurance premium of Rs. 9,92,856/- on the life of the employee under the Employer Employee Scheme (EES). The Ld. AO considered the premium paid by the company on the life of the assessee as a taxable perquisite in the hands of the assessee and added it to the total income of the assessee. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT(A). Considering the facts of the instant case and the submissions made by the Ld. AR and the provisions of section 17(2)(v) of the Act, the Ld. CIT(A) upheld the order of the Ld. AO. Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us. 7. The assessee has raised originally 8 grounds of appeal and later revised to 4 grounds of appeal as extracted below: "1. The order of the Ld. CIT(A) is contrary to the facts and also the law applicable to the facts of the case. 2. The notice issued U/s. 153C of the Act is invalid. 3. The Ld. CIT(A) is not justified in sustaining the addition of Rs. 9,92,856/- made by the Assessing Officer U/s. 17(2)(v) of the Act towards insurance premium paid by the employer. 4. Any other g....

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....ceedings to be initiated are by way of issue of notice U/s. 153A of the Act. In the instant case, the documents were seized from the residential premises of the assessee and therefore the Ld. AO ought to have issued notice U/s. 153A of the Act instead of notice U/s. 153C of the Act. Further, we find from the written submissions made by the Ld. AR regarding the satisfaction note recorded by the Ld. AO wherein the Ld. AO proposed to issue notice U/s. 153C of the Act. Therefore, the initiation of proceedings U/s.153C of the Act in the case of the assessee who is the person searched is not valid. It is not out of place to mention that any defects in notices U/s. 153A / 153C of the Act, whereby the Assessing Officer assumes jurisdiction, are not curable U/s. 292BB of the Act even though the assessee participated in the assessment proceedings without objection. Therefore, it can be safely concluded that in the instant case, since the issue of notice U/s. 153C is invalid and consequently, the assessment order passed U/s. 143(3) r.w.s 153C is bad in law and void ab initio. The decision quoted by the Ld. DR is distinguishable on the facts, although in that case the heading of the said notic....

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....ved that the assessee has advanced a sum of Rs. 16,00,000/- @ 12% per annum and the borrower has repaid the same along with interest which worked out to Rs. 16,80,000/- and the same was not admitted by the assessee in the return of income. In the absence of any proper explanation by the assessee, the Ld. AO made addition of Rs. 16 lakhs under unexplained loan advance. Further, the Ld. AO observed that the assessee admitted capital gain of Rs. 26,80,572/- in the return of income in response to the notice U/s. 153A against the admitted short term capital gain of Rs. 8,65,521/-. Therefore, the Ld. AO made addition of Rs. 26,80,572/- under the head undisclosed profit on sale of shares. During the search operations, it was noticed that M/s. Apex Frozen Foods Ltd., has paid an insurance premium of Rs. 8,43,632/- on the life of the employee under the Employer Employee Scheme (EES). The Ld. AO considered the premium paid by the company on the life of the assessee as a taxable perquisite in the hands of the assessee and added it to the total income of the assessee. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT(A) contesting the additions of Rs 16,00,0....