TaxTMI 
TaxTMI 
2024 (11) TMI 1031
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....essment 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 witness to the appellant assessee to link the appellant to so called incrimin....
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.... 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-compliance of section 153C of the Act as per additional ground rendering the assessment order in que....
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.... 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 block for the purposes of computation of the six and the ten year period is governed by the First Proviso to Section 153C, which significantly shifts....
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.... 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 DCIT ITA No.282/Del/2020 dated 03.08.2022. [iv] in view of facts stated above, that assessment under appeal has been framed under incorrect provision of law i.e. 143(3) i....
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.... 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 approval, be it rightly or wrongly but u/s 119 of IT Act not u/s 153D of the Act before passing of the impugned assessment order. 2. In the absence of any such approval taken by the assessing officer prior to passing of order u/s 143(3), the resultant ....
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.... 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 available for making regular assessment u/s 143(2) of the Act is very wide and broader and as long as time limit is available for issuance of notice u/s 143(2) of the Act, the notice issued under section 143(2) of the Act cannot be assailed. There is no statutory bar on the AO to frame the assessment under section....
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....ex, 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 contained therein, I am satisfied that action u/s 153C of I.T. Act, 1961 is required in the case of Smt. Mukul Rani Thakur. Accordingly, the AO holding jurisdiction over the case of Smt. Mukul Rani Thakur is being intimated to take action u/s 153C r.w.s. 153A of the I.T. Act, 1961. 8. Assessment Years involved 2015-16 to 2021-22 13.2. It is further notice....
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....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 Year 2015-16 to 2020-21. With reference to Assessment Year 2021-22 in question, the AO proceeded to invoke the regular assessment proceedings by issuance of notice u/s 143(2) of the Act. In this backdrop, the assessee contends that in the light of provision of section 153C of the Act, data of search stands substituted by the data of handing the documents by the AO of the person searched to the AO of the othe....