TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 505
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....itampura, New Delhi against Mr. Hemant Kumar Sharma, Director of M/s. Almina Textiles Pvt Ltd. 3. Consequent to that search, it was revealed that property bearing No. 153, Harsh Vihar, Pitampura, New Delhi was sold by Mr. Hemant Kumar Sharma to the assessee for a total consideration amounting to Rs.2,61,70,000/-. It was also revealed during the search proceedings that out of the total consideration received, an amount of Rs.99,50,000/- was received through cheque and a balance amount of Rs.1,62,20,000/- was received in cash. 4. Thereafter, an assessment order dated 30.12.2018 was passed under Section 153A read with Section 144 of the Act in the case of Mr. Hemant Sharma, wherein, an amount of Rs.1,62,20,000/- on account of unexplained money under Section 69A of the Act and Rs.21,12,141/- on account of Long Term Capital Gains was added to the total income. 5. Consequently, assessment proceedings under Section 153C of the Act were initiated against the assessee and the assessee was served a notice on 22.12.2020. In response to the aforenoted notice, an ITR was filed on 26.02.2021 declaring total income at Rs.39,76,440/-. Pursuant thereto, notice under Section 143 (2) of the Act wa....
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....He submitted that this Court ought not to invoke its writ jurisdiction as the assessee has an alternate efficacious remedy available as per law. He further submitted that right from 22.12.2020, the assessee was provided with the opportunity to file her response and participate in the assessment proceedings but the assessee continued to drag the matter to the fag end of limitation. He further argued that the assessment order nowhere suffers from any infirmity as the Assessing Officer ["AO"] has duly applied his mind and passed the assessment order after duly considering the reply filed by the assessee on 21.04.2021. In order to substantiate his arguments, he placed reliance on the decisions of Champalal Binani v. CIT (1971) 3 SCC 20., Titaghur Paper Mills Co Ltd v. State of Orissa (1983) 2 SCC 433., and Shrikrishnadas Tikara v. State Govt. of M.P. 1977) 2 SCC 741. 10. We have heard the learned counsel appearing on behalf of the parties and perused the record. 11. The solitary issue which stands raised before us is whether before passing the impugned order, an opportunity of hearing was given to the assessee and if the answer is in the affirmative, then whether the AO has duly cons....
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....ura, New Delhi and related to Smt. Sunita Gupta, which are enclosed herewith. 3. Further, on the same date search was conducted in the case of Sh. Hemant Kumar Sharma director of M/s Almina Textiles Pvt. Ltd. formerly known as M/s Gulab Chand Hemant Kumar Textiles Pvt. Ltd. situated at 157 Harsh Vihar, Pitampura, New Delhi. During assessment, it is found that Sh. Hemant Kumar Sharma is a brother of Sh. Chandra Mohan Sharma and both have sold a jointly owned property situated at 153, Harsh Vihar. Pitampura, New Delhi in A.Υ. 2014-15 to Smt. Sunita Gupta & M/s Kirtiman Buildtech Pvt. Ltd. During assessment of Sh. Hemant Kumar Sharma u/s 153A of the I.T. Act, 1961, it was established that unaccounted amount of Rs. 1,62,20,000/- was received by Sh. Hemant Kumar Sharma and the same fact was duly accepted by Sh. Aditya Sharma S/o Sh. Hemant Kumar Sharma. All the facts which were utilized to draw conclusion in the case of Sh. Hemant Kumar Sharma have been incorporated in the satisfaction drawn in the case of M/s Almina Textiles Pvt. Ltd. formerly known as M/s Gulab Chand Hemant Kumar Textiles Pvt. Ltd. for A.Y. 2014-15 u/s 153A of I.T. Act. 1961 for the initiation of case of Smt....
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....bers during the year F.Y. 2013-14 (A.Y. 2014-15) wherein property jointly purchased by Smt. Sunita Goel and payment in cash amounting to Rs. 1,62,20,000/- (as per annexure-register-1, page no. 39) was categorically mentioned. 7.1 In response to notice dated 04.03.2021, no reply has been filed by the assessee. Again, a show-cause notice dated 06.04.2021 has been issued to assessee for explaining as to why cash payment of Rs. 1,62,20,000/- should not be added back to her income for A.Y. 2014-15 on or before 08.04.2021. Copy of satisfaction note has been provided to assessee vide email. 7.2 Assessee filed her submission on 14.04.2021 and 21.04.2021 raising the following objections :- 1. Notice u/s 153C has been issued to the assessee on the basis of documents found during search at the place of a third party which at best only showed the tentative/projected purchase consideration without any conclusive evidence of making of any cash payment. In terms of the attached notice, the Assessing Officer has not brought or mentioned even a single word/ satisfaction note to be recorded at the time of issuance of notice u/s 153C by the relevant authorities and relevant permissions obtained....
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....icle documents seized belongs to a person other than the person referred to u/s 153A, the same shall be handed over to the AO having jurisdiction over such other person; and § that AO shall proceed against each such other person, issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that AO is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person (for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and*) for the relevant assessment year or years referred to in sub-section (1) of section 153A. 2. The satisfaction note is valid as per provisions u/s 153C r.w.s. 153A of the I.T. Act, 1961 through ITBA as well as through email wherein copy/image of incriminating material was available. Further, during assessment proceedings of Sh. Hemant Kumar Sharma for AY 2014-15 u/s 153A Sh. Aditya Sharma S/o Sh. Hemant Sharma has categorically admitted vide his statement recorded u/s 131 (1A) of the I.T. Act, 1961 on 06.12.20....
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.....2021, the assessee was provided with an opportunity of hearing. Furthermore, a satisfaction note that alludes to the incriminating material, on the basis of which assessment proceeding under Section 153C was initiated, was also duly provided to the assessee. The recitals of the impugned order would also reflect that the AO has appropriately considered the reply of the assessee filed on 21.04.2021 and then passed the impugned order. 16. Moreover, the reliance placed upon decisions of New Delhi Auto Finance Pvt. Ltd. (supra), Manish Maheshwari (supra) and Kamal Nath (supra) is entirely misplaced and is not beneficial for the case of assessee on the score that present is not a case, wherein, the AO has not recorded his satisfaction before initiating the Section 153C proceedings or the satisfaction note was not provided to the assessee. It is evident from the recitals of the notice dated 04.03.2021 and show cause notice dated 22.12.2020 that the AO has recorded his satisfaction before initiating the Section 153C proceedings and furthermore, on 19.04.2021, the assessee has been duly provided with the satisfaction note. 17. Furthermore, it is relevant to point out that the assessee ch....
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....d to have been proximate to the assessment proceedings. We also recollect the decision of this court in CIT v. Raghubir Singh Garg (I. T. A. No. 1420 of 2010, decided on August 27, 2014) (2015) 4 ITR-OL 256 (Delhi). In that case, the search took place on August 29, 2002, and the satisfaction note was recorded on January 16, 2003, i.e., within a period of four-and-half months. The court was of the opinion that the satisfaction note could be upheld. Following the said decision it is held that there was no delay in issuance of notice under section 158BD in the facts of the case." 18. In light of the aforementioned position of law this court finds that the delay of 5 months in the issuing of notice by the Assessing Officer in the present appeals cannot be unreasonable. Accordingly, the impugned orders of the Income-tax Appellate Tribunal dated April 4, 2008, and April 17, 2009, is set aside on this aspect. The satisfaction note is held to be validly issued and within a reasonable time. In the light of the above observations of the Supreme Court in Calcutta Knitwears, particularly the contextual facts discussed (i.e., completion of the searched party's assessment on March 31, 2005....
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....aw which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must ....