TaxTMI 
TaxTMI 
2024 (11) TMI 1031
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.... defiance of the provision of sec 153C of IT Act as the assessment order has been passed taking adverse view of the material found in the course off search on the third person and the assessment year under consideration was not the year of search in view of the provision to sec 153C(1) of IT Act and the assessment was not an abated assessment. 3. The Ld.CIT(A) has erred in confirming the addition of Rs. 97,37,300/- under the head long term capital gain on the basis of the digital evidences found from the digital devices of other individuals without appreciating the fact that same were not found corroborated from the facts on record and the digital evidences shared were not backed by a valid certificate of authentication required u/s 65B of Indian Evidence Act. 4. The assessment order under appeal is unsustainable in law as the same has been passed taking cognizance of the so called incriminating material found from a third person without the third person and also the counter party i.e. buyer in the deal of sale of flat, examined by the Ld.AO with reference to the material adversely relied upon and without providing opportunity of cross examination of the said witn....
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....2 of the grounds of appeal and pointed out that this Ground is essentially in the nature of additional ground. An application for admission of ground, treating the same as additional ground was referred. It was submitted that the aforesaid ground seeks to challenge the jurisdiction of the AO assumed u/s 143(2) of the Act in the light of decision rendered by the Hon'ble Delhi High Court in the case of Pr.CIT & Anrs vs Ojjus Medicare P.Ltd. & Ors. in ITA No.52/2024 dated 03.04.2024. The Ld. Counsel for the assessee pointed out that the ground raised is legal ground for which, relevant facts are available on record and thus, urged for admission thereof in the light of judgements rendered in the case of National Thermal Power Co.Ltd. vs CIT 229 ITR 383 (SC) and Jute Corporate of India Ltd. vs CIT 187 ITR 688 (SC). 7. The issue raised as per additional ground touches the jurisdictional aspects and thus, goes to the root of the matter. The relevant facts are stated to be emanating from records and do not call for examination of any fresh facts. Hence, additional grounds are admitted for adjudication purposes. 8. The assessee essentially raised following grounds: [i] "non-c....
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....faction u/s 153C of the Act and thereafter, the AO of the assessee was required to issue a notice u/s153C calling the assessee to file return of Income after considering the impact of the material found in the case of the person searched. In the present case although both the AO's have recorded separate satisfaction u/s 153C of the Act but the AO of the appellant failed to issue a notice u/s 153C of the Act without which assessment u/s 153C could not be completed and has not been completed. [iv] that the Hon'ble Jurisdictional Delhi High Court in the case of Pr CIT & Anrs vs Ojjus Medicare P Ltd & Ors in ITA No.52/2024 dated 03.04.2024 came across the identical issue. Your Kind attention is invited to para 119(D) to (F) of the decision which is reproduced in the decision of M.D. Overseas P Ltd vs Dy CIT W.P.(C) 3092/2023 (Del) and same is extracted as under: "PARA 119..... D. The First Proviso to Section 153C introduces a legal fiction on the basis of which the commencement date for computation of the six year or the ten-year block is deemed to be the date of receipt of books of accounts by the jurisdictional AO. The identification of the starting....
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....the expression "from the end of the assessment year" while speaking of the ten-year block." Taking cue from the above decision of Hon'ble Jurisdictional Delhi High Court and also relying on the decision of ITO vs Vikram Sujit Kumar Bhatia 453 ITR 417 (SC), CIT vs Jasjit Singh CA No.6566 of 2023 (SC) dated 26.09.2023, CIT vs RRJ Securities Ltd 380 ITR 612 (Del) and SSP Aviation vs DCIT 346 ITR 177 (Del), the legal proposition emerging is that relevant AY's for the purpose of issue of notice u/s 153C will be counted backward taking the assessment year of the search under proviso to sec 153C as the starting point. If period of six years computed from AY 2022-23 being the year of search as per proviso to sec 153C(1), the present assessment year i..e AY 2021-22 will fall in the block assessment year for which assessment year is required to be completed on the basis of material found in the case of searched person by taking recourse to section 153C of IT Act despite recording satisfaction as per requirement of 153C but without issuing notice to invoke provision of sec 153C of IT Act. The present issue was identically covered in the decision of Santosh Hospital P Ltd vs D....
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....gned order. The request for approval was made by the assessing officer to Addl CIT, Central Range-08, New Delhi vide communication dated 29.12.2022 (PB 63) and the above communication shows that approval has been sought under section 119 of IT Act in accordance Board's order dated 15.07.2022 under above section. Accordingly, the above authority granted approval dated 30.12.2022 (PB 62) and the approval was accorded u/s 119 of IT Act in accordance with CBDT order dated 15.07.2022. The important facts emerging from above details are as under: 1. There is no authority/power/mechanism of granting approval in the provision of sec 119 of IT Act which provision merely deals with the condonation/relaxations/clarifications to mitigate hardship to the taxpayers in the taxation administration. No burden of compliance is added through the circular/notification issued under above section. There is no CBDT order found from the research done by the appellant under which approval is mandated to be taken by the AO under any CBDT order. As a matter of no CBDT order of above file number was found in the public domain. Without prejudice, the fact remains that the department has taken appr....
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....ial found in the case of search on other assessee, the assessment is clearly the assessment covered by section 1538(1)(b) of the Act requiring prior approval u/s 153D of the Act and absence of such approval invalidates the assessment order impugned in the present appeal. The appellant has requested number of times to the AO about the circular on the basis of which approval has been obtained u/s 119 before passing of the order. But the Ld AO is unable to provide such circular and appellant is unable to find such circular." 11. The Ld. Counsel for the assessee then contended that the assessment order giving rise to present appellate proceedings, is not sustainable in law on both Courts. 12. The Ld.Sr.DR for the Revenue, on the other hand, relied upon the actions taken by the AO and the Ld.CIT(A). On the additional ground raised by the assessee, challenging the jurisdiction assumed towards regular assessment instead of proceedings u/s 153C of the Act, the Ld.Sr.DR for the Revenue pointed out that the provision of section 143(2) r.w.s 143(3) of the Act entitles the AO to make regular assessment subject to available time limit for invoking such jurisdiction. The jurisdiction avail....
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.... (ii) Date of above panchnama 10.01.2021 (iii) Address of the place/premises from where asset/paper was seized/impounded G-2, Plot No.5, Sikka Complex, Preet Vihar, New Delhi-110092. (iv) Description of relevant asset/paper(s) During the course of search u/s 132 of the Act conducted at G-2, Plot No.5, Sikka Complex, Preet Vihar, New Delhi-110092 following assets/ documents/digital data were seized. Cloned data of Vaibhav Jain's mobile marked as Annexure A-4 containing images of kachchi parchi of whatsapp chat between Vaibhav Jain and thakur having the details of total sale consideration of the property at B-132, First Floor, Preet Vihar, in which unaccounted cash amounting to Rs. 1,05,50,000/- received by Smt. Mukul Rani Thakur. (v) The brief reasons on the basis of which the AO reached to the conclusion that the relevant seized asset/paper belongs to the other persons (use Annexure if required). While examining the seized assets and seized documents/digital data and the data seized and Smt. Mukul Rani Thakur i.e. the person other than the searched person. the basis of the documents/digital data seized and information....
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....ained therein, it is observed that the assessee i.e. Smt. Mukul Rani Thakur has purchased the above mentioned property in which huge.cash component involved thereof. After examining the documents/digital data and information contained therein, I am satisfied that documents/digital data and information contained therein, also relate to Smt. Mukul Rani Thakur and have a bearing on the determination of total income of this person. In view of the same, I am further satisfied that it is a fit case for initiating proceedings u/s 153C of the Income Tax Act. 1961 for the A.Ys. 2015-16 to 2020-21. Proceeding u/s 143(3) of the Income Tax Act, 1961 is also being initiated for A.Y. 2021-22 by issuance of notice u/s 143(2) of the Act. 3. Accordingly, notices u/s 153C for the A.Ys. 2015-16 to 2020-21 and notice u/s 143(2) for AY 2021-22 are being issued as per provisions of the income Tax Act, 1961." 13.3. On perusal of the satisfaction note of the searched person, it is observed that Assessment Year involved is shown to be 2015-16 to Assessment Year 2021-22. The AO of the assessee, in turn, framed the satisfaction note for initiation of proceedings u/s 153C of the Act for Assessment....