TaxTMI 
TaxTMI 
2024 (5) TMI 1582
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...., violative of principles of natural justice and void-ab-initio. 2. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in law and on facts in initiating revisionary proceedings u/s 263 of the Act against an invalid and void-ab-initio assessment order u/s 153A of the Act as the Ld. PCIT (Central) cannot exercise powers u/s 263 of the Act to revise an assessment order which is non est in the eyes of law. 3. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in law in invoking provisions of Sec. 263 of the Act totally against the principles of natural justice and without any merit as there is/was no occasion to initiate the revisionary proceedings u/s 263 of the Act. 4. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in directing the Ld. AO to adjudicate the alleged cash loan amounting to Rs. 2,00,00,000/- based on mere surmises, conjectures and on his own whims & fancies vide order dated 30.03.2024 u/s 263 of the Income Tax Act. 5. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in law in assu....
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....sessment order which is non est in the eyes of law. 3. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in law in invoking provisions of Sec. 263 of the Act totally against the principles of natural justice and without any merit as there is/was no occasion to initiate the revisionary proceedings u/s 263 of the Act. 4. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in directing the Ld. AO to adjudicate the alleged fund transfer amounting to Rs. 10,53,99,925/- based on third party averments without any corroborative material or evidence on record as well as without providing the opportunity of cross examination to the appellant to rebut the wrong testimony of the third party. 5. That on the facts and in the circumstances of the case, the Ld. PCIT (Central) has erred in law in assuming jurisdiction u/s 263 of the Act beyond the reasonable period of time and without properly satisfying & demonstrating as to how the twin conditions for invoking the provisions of Sec. 263 of the Act were met as prescribed u/s 263 of the Act. 6. That on the facts and in the circumstances o....
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.... the Income Tax Act, 1961 for AY 2009-10 to AY 2019-20 vide his orders all dated 23-04-2021 in case of the assessee. The assessee has preferred appeals before the Ld. CIT (A) against all the said orders framed u/s 153A of the Act for AY 2009-10 to AY 2019-20 and the said appeals are pending for adjudication. Subsequently, on 15.03.2024, Ld. PCIT initiated proceedings u/s 263 of the Act for AY 2013-14 and AY 2015-16 and thereafter, passed orders u/s 263 r.w.s. 153A of the Act on 30.03.2024 by deeming the order passed u/s 153A of the Act by the Assessing Officer as erroneous and prejudicial to the interests of revenue against which orders, the assessee is in appeal before us. 5. At the time of hearing, the Ld AR submitted before us that the order u/s 153A of the Act was passed by the Ld. Assessing Officer without having a valid jurisdiction as there was no warrant of search issued in the case of the assessee rather only the residential premises of the assessee was searched on the strength of the Warrant No. 7263 dated 06.02.2019 issued in the names of "Avtar Singh Kochar, Gagandeep Singh Kochar, Hari Singh Kochar, M/s. H.L. Forex Pvt. Ltd." and not in the case of the assessee hims....
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....eproduced herein below: - 45. "There also the search warrants are in the name of Shri Sandeep Bansal only and are not in the name of the appellant-company. Thus, prerequisite condition of search being initiated in the case of appellant is not fulfilled............. There may be a valid search in the case of said Shri Sandeep Bansal but assessment under section 153A could be made only in his hands and not in the case of appellant.................. Such defect in framing the assessment is a jurisdictional defect which cannot be cured and assessment has to be held to be invalid because the Assessing Officer did not have any jurisdiction to assess the appellant." Further held at Para 73 (i): "To sum up our conclusions are:- (i) That the assessments framed on the appellant under section 153A are invalid assessments as discussed in the body of this order. ......................................" 7. The Ld. AR also brought on record that no material or document was found during the course of search which pertains to or relates to or belongs to the aforementioned parties in whose names Warrant no. 7263 was in fact issued, i.e....
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....sed u/s 263 of the Act) based on the said non-est order are also non-est, bad in law and void-ab-initio. 11. The Ld.AR further relied by placing reliance on another decision of the coordinate Bench in the case of M/s Shahi Exports Pvt. Ltd v. PCIT in ITA Nos. 2170-71/DEL/2017 whereby the Bench vide Para 16 of the said judgement held that the assumption of jurisdiction u/s 263 of the Act in respect of an assessment which is non-est is also bad in law as a non-est order cannot be erroneous and prejudicial to the interest of the Revenue. An order framed u/s 263 of the Act for both the A.Ys 2008-09 and 2010-11 are accordingly quashed on the principle of Sublato Fundamento Cadit Opus, meaning thereby, that in case the foundation is removed, the super structure falls. Since the foundation, i.e. the order u/s 153C has been removed, the super structure i.e. the order u/s 263 must fall. 12. The Ld.AR further prayed before us that since the order u/s 153A of the Act is non-est in the eyes of law then order framed u/s 263 of the Act on the strength of the said non-est order is also bad in law and void ab initio in view of the settled law. 13. On the other hand, the Ld. CIT (DR) had m....
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....sessee now before the Hon'ble Bench definitely constitute 'additional evidence' for the purpose of instant proceedings before Hon'ble Tribunal within the meaning of Rule 29 of ITAT Rules. 2. In of this regard, it would be pertinent to go through Rule 29 of ITAT Rules dealing with production additional evidence, which is reproduced below: "Production of additional evidence before the Tribunal. 29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause. or. if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by the, the Tribunal. for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit wo be filed or may allow such evidence to be adduced." As per the above rule, none of the parties to the appeal is entitled to produce additiona....
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....to why the assessee did not enclose the aforesaid documents (copy of Warrant of authorisation and Panchnama) while filing its submissions before learned PCIT. There is nothing on the record to suggest that the assessee was not having both these documents at the time of making such submissions before Learned PCIT and he was afforded multiple opportunities of being heard by Learned PCIT. It is also strange to note that assessee maintained complete silence on this issue/point in subsequent submissions filed on 27.03.2024 and 28.03.2024 before learned PCIT. It is well accepted principal in law that onus to substantiate an assertion is on the person who makes such an assertion unless statute provides otherwise. The assessee failed to discharge such onus. In this regard, one thing is evident from the records that assessee chose not to substantiate its assertion before learned PCIT despite having above referred documents in his possession at the time of making submissions before learned PCIT. It is also apparent from facts of the case as discussed above that due to some reasons, the assessee did not want to highlight and contest the issue of non-issuance of warrant and panchnama in its na....
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....t this stage to the said issue only. Further submission will be made by the undersigned if and when Hon'ble bench decides to hear the appeal on merit and other points." 14. In summary, the Ld. CIT (DR) argued that the assessee has challenged the entire proceedings framed u/s 263 of the Act on the basis of a Search Warrant bearing no. 7263 which may have not found a place in the records of the Ld. PCIT while examining the assessment records and he may have started examining the issue from the assessment order u/s 153A of the Act upfront in presumption that the Ld. Assessing Officer must have appropriately dealt with the matter of jurisdiction. 15. The Ld. DR further argued that the assessee has brought the issue that no warrant of search was issued in the name of the assessee only before the Hon'ble Bench and has not taken up this issue during the course of proceedings u/s 263 of the Act before the Ld. PCIT and therefore, the Warrant of Search and Panchnama so placed before the Hon'ble Bench by the assessee are additional evidences for the Ld. PCIT and therefore, the matter should be remanded back to the file of Ld. PCIT to examine the Warrant no. 7263 dated 06.02.2019 and....
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....at the documents which form part & parcel of the assessment records and that too very much in the possession of the Ld. Assessing Officer himself as well as available before the Ld. PCIT are being described as the additional evidences put forward by the appellant which documents are the creation of the department itself and not a new material or evidence which have been brought on record. In fact, these are the documents which are the basis of the entire proceedings which took place in case of the appellant. The appellant has just pointed out the relevant material which was lying in their own records and which was available to both the Ld. AO while framing the assessment u/s 153A of the Act and to the Ld. PCIT while examining the records u/s 263 of the Act. The Ld. CIT DR by his aforementioned argument is just praying before the Hon'ble Bench to give the Ld. PCIT an opportunity to examine their own records in the interest of natural justice - Quite a lame & shallow argument. How a document obtained by the appellant from the revenue authorities can be termed as an additional/new evidence for the revenue authorities itself. It is sheerly an attempt of the L....
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....e any warrant which was issued in the name of the appellant. ,,,, It is again reiterated that no warrant of search was issued in the name of the appellant and all the arbitrary additions made while framing assessment u/s 153A of the Act have been made based on the material seized during the course of search action conducted at the residential premises of the appellant at 17/71, Punjabi Bagh West, New Delhi - 110026 under Warrant no. 7263 dated 06.02.2019 which was issued in the name of "Avtar Singh Kochar, Gagandeep Singh Kochar, Hari Singh Kochar, M/s. H.L. Forex Pvt. Ltd." to search the premises of the appellant as there was no warrant of search issued in case of the appellant in his individual capacity/ in his own case. In view of the above, the third argument of the Ld. CIT (DR) is also devoid of any merit, baseless, vague and invalid in toto." 18. In summary, during the course of hearing as well, the Ld. AR has submitted that the assessee has duly highlighted the said fact that no warrant of search was issued in the name of the assessee during the course of proceedings u/s 263 of the Act before the Ld. PCIT vide his letter dated 26.03.2024 which f....
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....ed in the name of very such person, i.e., to invoke the provisions of Sec. 153A, initiation of search u/s 132 in case of the said person is a prerequisite. The person referred under Sec.153A and Sec. 132 is one & the same person. It is an undisputed & undeniable fact that there must be an issuance of a valid warrant of authorization of search in the name of the very person u/s 132 of the Act in whose case proceedings u/s 153A of the Act are initiated. In the case of the assessee, the Warrant of Authorization, Warrant no. 7263 on Form 45, was issued in the names of "Avtar Singh Kochar, Gagandeep Singh Kochar, Hari Singh Kochar, M/s. H.L. Forex Pvt. Ltd." And not in the name of the assessee, i.e., Sh. Sanjay Jain. 23. Therefore, we find merit in the argument of the Ld. AR that when no Warrant of Authorization has been issued u/s 132 of the Act in the name of the assessee then the assessment proceedings & orders cannot be framed u/s 153A of the Act in case of the assessee. Hence, the orders framed u/s 153A of the Act in case of the assessee are non est, invalid, void-ab-initio, illegal and unlawful. Further, the facts of the instant case of the assessee are also similar to the case....
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....AR has drawn the attention of the Ld. PCIT vide their reply dated 26.03.2024 that "no Search Warrant has been issued in the name of the appellant and therefore, no legally tenable proceedings arises u/s 263 r.w.s. 153A of the Act which is a matter emanating from the facts on record". However, the Ld. PCIT failed to go through the case records and erroneously proceeded with proceedings u/s 263 of the Act based on a non est, invalid, voidab-initio, illegal and unlawful order u/s 153A of the Act which is bad in law. 27. In view of the above discussion, since the orders u/s 153A of the Act are held to be non-est, invalid, void-ab-initio, illegal and unlawful, the consequent orders passed by the Ld. PCIT u/s 263 of the Act for AY 2013-14 and AY 2015-16 are hereby quashed on the principle that in case the foundation is removed (i.e., assessment orders u/s 153A of the Act), the super structure (i.e., orders u/s 263 r.w.s. 153A of the Act) must fall. 28. As the subject orders u/s 263 r.w.s. 153A of the Act are itself quashed, therefore, no adjudication is required for other grounds raised by the assessee. 29. In the result, the appeals preferred by the assessee are allowed. Ord....
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.... valuable article or thing; (c) to place identification marks on such books of account and documents as may be found in the course of the search and as you may consider relevant to or useful for the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (d) to examine such books of account and documents and make, or cause to be made, copies or extracts from such books of account and documents (e) to seize any such books of account, documents, money, bullion, jewellery or other valuable article or thing found as a result of such search and take possession thereof; (f) to make a note of an inventory of any such money, bullion, jewellery, or other valuable article or thing: (g) to convey such books of account, documents, money, bullion, jewellery, or other valuable article or thing to the office of the Deputy Commissioner of Income-tax or any other authority not below the rank of the Income-tax Officer employed in the execution of the Income-tax Act, 1961: and (h) to exercise all other powers and perform all other functions under section 132 of the Income-tax Act, 1961, and the rules relating thereto. You may requis....
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..... 59,94,232/- Watches released to the party valued of Rs. 59,94,232/- Watches Seized - Nil 6. in the course of the search the authorised officer Sh. Sohail Malik, DDIT(Inv.), Unit - 1(2), New Delhi recorded the statement(s) of Sh. Sanjay Jain, Smt. Neena Jain and Sh. Pranav Jain on solemn affirmation/oath, in our presence. No coercion, threat, inducement, promise or other influence was brought to bear on the above deponent. The statement was read over/explained in the local language viz. English/Hindi to the deponent who signed the statement in token of having understood its content and of agreeing that it has been correctly recorded. The deponent has made a statement under Explanation 5 to Section 271 (1) (c) of I.T. Act/48-(+)(e)-of W.T. Aet about unaccounted assets and income of Rs. - 7. The following other important persons were present in the place of search and either took an active part in or helped in the search proceedings: Relationship Name - 1 10.02.2019 Dr. SCHAIL MALIK Say Pas 10/2119 Sun's 10/02-114 1 .- 249 Document 5 Date of Search: 06.02.2019 Annesure: A Page 1 of 3 Team KG-7 LISTINVENTORY OF BOOKS OF ACCOUNT/DOCUMEN....
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....apers I to 77 Annexure-A-3 4 Loose Papers I to 97 Annexure-A-4 5 Loose Papers 1 to 165 Annexure.A.5 6 Loose Papers 1 to 156 Annexure A-6 7 Loose Papers I to 82 Annexure-A-7 8 Loose Papers 1 to 74 Annexure-A-8 Loose Papers 1 to 65 Annexure-A-9 10 Loose Papers I to 100 Annexure-A-10 11 Loose Papers 1 to 93 Annexure-A-11 12 Loose Papers I to 110 Annexure-A-12 13 Loose Papers I to 150 Annexure-A-13 14 Loose Papers 1 to 190 Annexure-A-14 15 Loose Papers 1 to 131 Annexure-A-15 16 Loose Papers 1 to 62 Annexure-A-16 17 Loose Papers 1 to 104 Annexure-A-17 18 Hoy pain Loose Papers 1 to 91 Annexure-A-18 19 Loose Papers 10/2/19 1 to 9 Annexure-A-19 20 Loose Papers 1 to 62 Annexure-A-20 21 Loose Papers 1 to 190 Annexure-A-21 22 One Brown Diary 1 to 43 Annexure-A-22 23 One Neelgagan Account Book .(Note Book) 1 to 42 Annexure-A-23 24 One Red Diary 1 to 152 Annexure-A-24 Hoy pain 10.02. 2019 101219 Signature of Party (with name and position) Signature of Officers authorised to search/survey (with name and designation) Signature of Panchas (in case of search only) Dr. SOHAIL MALIK Dy. Director of Income Tax (Ine.) Un....
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....579058 afbcee223e733a78e Description 26.03.24 AY 2013-14.pdf Letter 26.03.2024 b292c8a3f8a689432 31ffc36b05c1d2a8f 500cba32ef07a Attachment Letter 26.03.2024 Document 9 PCIT(Central)-3, Delhi. E-Mail :- [email protected] 26.03.2024 Respected Sir, Reg .: Show Cause Notices issued u/s 263 of the Income Tax Act, 1961 dated 21.03.2024 & 15,03.2024 for AY_2013-14 in case of Sh. Sanjay Jain (PAN: AAGPJ1847C) This is in reference to the captioned matter. Your good-self has issued notice dated 21.03.2024 u/s 263 of the Act desiring the assessee to reply to the show cause notice dated 15.03.2024 on 26.03.2024 at 05:00 PM irrespective of the adjournment request made by the assessee on 20.03.2024 for adjourning the matter for 15-20 days' time as the assessee is out of station due to some medical exigency of his family member. At the outset, it is hereby submitted that the search was conducted at my premises namely, 17/71, Punjabi Bagh, New Delhi though the warrant was issued in the name of some third person, therefore, no legally tenable proceedings arises u/s 263 r. w. s. 153A of the Act. Further, it is most respectfully submitted th....