2024 (4) TMI 837

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....r passed u/s. 147 of the Income Tax Act, 1961 [the Act] for the AY 2016-17. 2. Briefly stated the facts of the case are that the assessee is an individual and an NRI engaged in Medical Profession in USA and reported that he has no regular income in India. The assessee filed his return of income for the AY 2016-17 on 11/1/2017 admitting a total income of Rs. 8,860/- and claimed a refund of Rs. 2,487/-. Later on it was transpired that the assessee has entered into an agreement on 6/1/2016 with M/s. Yugandhar Housing Pvt Ltd., represented by its Managing Director Sri Muppavarapu Maheswara Reddy for purchase of 31,594 sq yds situated at Vempadu Village of Pedapadu Mandal of West Godavari District for a recorded consideration of Rs. 7,89,85,0....

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....posits in FCNR operated in Canara Bank, Venkateswara Puram, Vijayawada. He advanced amounts to his friend Mr. Muppavarapu Maheswara Reddy and no interest was charged on the same. It was submitted by the assessee that the assessee in order to help his friend entered into an agreement for purchase of site to the extent of 31,594 sq yds for Rs. 7,89,85,000/- for the safety and security and to have commitment from Sri Maheswara Reddy. However, the Ld. AO has observed in his order that the assessee has not clearly explained the monetary transactions worth Rs. 7,89,85,000/- and based on the information transmitted by the Investigation Wing and with respect to the material available on record, the Ld. AO initiated proceedings u/s. 147 of the Act w....

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..... The Ld.CIT(A), considering the explanations of the assessee and after examining the same partly allowed the appeal of the assessee by deleting the addition of Rs. 79,35,000/- and sustained the addition of Rs. 95,00,000/-. However, the Ld. CIT(A) has not adjudicated the legal ground raised by the assessee. Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds of appeal: "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 Ld. CIT(A) ought to have held that the assessment proceedings ought to have been initiated u/s. 153C of the Act and not u/s. 148 of the Act consequently the Ld. CIT(a) ought....

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....sar Buildwell P. Ltd reported in [2023] 454 ITR 0212 (SC) Further, the Ld. AR also relied on the decision of the Hon'ble Rajasthan High Court in the case of Shyam Sunder Khandelwal vs. ACIT reported in [2024] 161 taxmann.com 255 (Rajasthan). The Ld. AR further submitted that the above cases relied upon by him have held that when there is incriminating material seized or requisitioned belonging or relatable to person other than on whom search was conducted, section 153C is to be resorted to. He therefore pleaded that the assessment order passed u/s. 147 of the Act is void-ab-initio and deserves to be quashed. Per contra, the Ld. Departmental Representative [Ld. DR] fully supported the order of the Ld. Revenue Authorities. The Ld. DR al....

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....ts of that case are different from that of the instant case. However, the decision of the jurisdictional Coordinate Bench of the Tribunal at Visakhapatnam in the case of Smt. Samanthapudi Lavanya vs. ACIT and others (supra), wherein the Tribunal by relying on various High Court decisions has held that in the absence of any fresh information collected by the Ld. AO or no information has come to the notice of the Ld. AO in the normal course other than the information collected during the course of search from the search person, the Ld. AO ought to have made the assessment u/s. 153C of the Act and not u/s. 147 of the Act. Further, in a recent decision, the Hon'ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal vs. ACIT (supra) ....

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....as conducted, Section 153C is to be resorted to." 7. The above decision has also considered the decision of the Hon'ble Madras High Court in the case of Saloni Prakash Kumar vs. ITO (supra) relied on by the Ld. DR. Further, the Ld. AR placed relied on the decision of the Hon'ble Supreme Court in the case of Pr. CIT. vs. Abhisar Buildwell P. Ltd (supra) wherein the Hon'ble Supreme Court has held as under: "35. The Supreme Court in the case of Abhisar Buildwell P. Ltd. (supra) while dealing with the provisions of Section 153A held that in case of absence of incriminating material seized during the search, the department is not remediless for reassessing the unabated assessment on the basis of material received from the other sourc....