IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `G', NEW DELHI
BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER
AND
SH. KULDIP SINGH, JUDICIAL MEMBER
ITA No.4905/Del/2016
Assessment Year: 2012-13
Seema Jain Vs. ACIT
12, Dayanand Vihar Circle 59 (1)
Delhi-10092 New Delhi
PAN No.AAFPJ6460J
(APPELLANT) (RESPONDENT)
Appellant by Sh.Raj Kumar, CA
Sh. Sumit Goel, CA
Respondent by Sh. S. S Rana, CIT DR
Date of hearing: 05/12/2019
Date of Pronouncement: 17/02/2020
ORDER
PER R.K PANDA, AM:
This appeal filed by the assessee is directed against the
order dated 04.07.2016 of the CIT(A)-19, New Delhi relating to
A.Y.2012-13.
2. The grounds of appeal are as under :-
1. That under the facts and circumstances, the impugned
Asstt. framed U/s. 153 C is illegal and without jurisdiction
in the absence of issuance of mandatory statutory notice
U/s. 153 C, which fact stands admitted as per RTI reply
dtd. 20.05.2016.
2.That without prejudice, under the facts and
circumstances, as no Asstt. proceedings were pending for
A.Y. 2012 - 2013 as on the date of search, hence, the
Asstt. Proceedings were unabated in view of second
proviso to Sec. 153 A (1), consequently the AO exceeded
his jurisdiction in examining the issue of addition of Rs. 1
1,08,034/- which is not emanating from any material /
incriminating material found / seized during search.
3.That without prejudice, under the facts and
circumstances, addition of Rs. 11,08,034/- on the basis of
alleged less declared intt. income as per Form - 26 AS is
un - sustainable in law as well as on merits.
3. The Ld. Counsel for the assessee at the time of hearing did
not press ground of appeal No.1 for which the Ld. DR has no
objection. Accordingly ground of appeal No.2 filed by the assessee
is dismissed as not pressed.
4. So far as the ground of appeal No.1 is concerned, the facts
of the case, in brief, are that the assessee is an individual and
filed her return of income on 28.07.2012 declaring total income at
Rs.28,02,620/- which was processed u/s. 143 (1). Subsequently
the case was selected for scrutiny through CASS and notice u/s.
143 (2) and 142 (1) were duly issued and served on the assessee.
As per the assessment order, a search and seizure operation u/s.
132 (1) of the IT Act 1961 was carried out by the Investigation
Wing, Ghaziabad on 19.10.2011 at the premises of Agarwal
Associates and Jainco Group of cases comprising M/s. Jainco
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Promoters (P) Ltd. & Others. The material seized during the
search and seizure contained certain documents that relates to
Mrs. Seema Jain w/o Sh. Praveen Kumar Jain. The AO completed
the assessment u/s. 143 (3) r.w.s. 153 C and 153 A of the Act on
31.03.2015 determining the total income at Rs.45,98,654/-
wherein he made addition of Rs.11,08,034/- on account of
undisclosed interest income and Rs.6,70,000/- being unsecured
loan received from two parties.
5. Before CIT(A) the assessee, apart from challenging the
addition on merit, challenged the validity of the assessment order
on account of invoking of provisions of section 143 (3) r.w.s. 153C
and 153 A. The Ld. CIT(A) deleted only the addition of
Rs.6,70,000/- but sustained addition of Rs.11,08,034/- on
account of undisclosed interest income.
6. Aggrieved with such order of the CIT(A), the assessee is in
appeal before the Tribunal.
7. The Ld. Counsel for the assessee while arguing the ground
of appeal No.1 referred to the reply obtained from the Income Tax
department under RTI Act, copies of which are placed at paper
book page No.1 and 2. He submitted that no notice u/s. 153C
was issued for A.Y.2012-13 as admitted by the department,
therefore, in absence of issue of notice u/s. 153C the assessment
order passed u/s. 143 (3) r.w.s. 153 A/ 153 C is void ab initio. He
submitted that when the assessment order has been framed u/s.
153A/153C, therefore, without issuing mandatory notice u/s.
153C, the AO could not have assumed jurisdiction, since such
proceedings were initiated on the basis of receipt of documents by
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the AO of the assessee from the AO of the searched person on
06.03.2014. Relying on the following decisions he submitted that
the assumption of the jurisdiction by the AO in the instant case is
not in accordance with law since no mandatory notice u/s. 153 C
was issued by the AO.
1. DLF Properties (P) Ltd. Vs. DCIT 60 SOT 88 (Delhi-Trib.)
2. Pavitra Realcon (P.) Ltd. Vs. ACIT [2017] 87
taxmann.com 142 (Delhi-Trib.)
8. The Ld. DR on the other hand submitted that this case was
selected for scrutiny on 28.07.2012 through CASS and notice
u/s. 143 (2) was issued on 06.08.2013 which was duly served on
the assessee on 08.08.2013. He submitted that it is a case of
scrutiny and mention of section 143 (3) r.w.s. section 153 C/ 153
A of the IT Act, 1961 is a typographical error which may kindly be
ignored in view of the provisions of section 292 B.
8.1 The Ld. Counsel for the assessee in his rejoinder submitted
that the CIT(A) in the order passed in A. Y.2006-07 vide ITA No.
29/2015-16 order dated 27.05.2016 has held that the relevant
six years in the case of the assessee should be from the A. Y.
2008-09 to 2013-14. Therefore, assessment for this year has to
be u/s. 153C and not u/s.143 (3).
9. We have considered the rival arguments made by both the
sides, perused the orders of the authorities below and the paper
book filed on behalf of the assessee. We have also considered the
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various decisions cited before us. We find the AO at para-2 of the
order has mentioned as under :-
"2. In the instant case, a Search and Seizure operation u/s 132(1) of the I.T. Act, 1961 was
carried out by the Investigation Wing, Ghaziabad on 19.10.2011 at the premises of Agarwal
Associates & Jainco Group of cases comprising M/s Jainco Promoters (P) Ltd others at G-10,
Plot No.6, Aditya Commercial Complex, Preet Vihar, Delhi-110092 & 12, Dayanand -Vihar,
Delhi. The material seized during the search & seizure contained certain documents that
relates to Mrs. Seema Jain w/o Sh. Praveen Kumar Jain."
10. We find from the copy of the assessment order that the AO
at page-1 and at page-3 has mentioned that the assessment has
been completed u/s. 143 (3) r.w.s. 153 C / 153A of the IT Act.
1961. A perusal of the reply received from the Income Tax
department by the assessee under RTI Act shows that the AO has
categorically given a reply that no notice u/s. 153 C was issued
for A. Y. 2012-13.
11. A perusal of the order of the CIT(A) for A. Y. 2006-07 shows
that the ld. CIT(A) in assessee's own case for A.Y.2006-07 vide
appeal No. 29/15-16 order dated 27.05.2016 at para 7 of the
order has annulled the assessment by observing as under :
"Although the proviso to section 153C considers the date of receipt of
documents as the date of initiation of search only for the purpose of second
proviso to section 153 A which deals only with the abatement of pending cases,
the Hon'ble Delhi High Court has held that date of receipt of documents and
books of accounts shall also be considered as the date of search for the purpose
of counting the six years for which the assessments have to be carried out, Since
the relevant six years in the case of appellant should be from Assessment Year
2008-09 to 2013-14. being bound by the decision of Jurisdictional High Court,
the Assessment Year 2006-07 has to be treated as beyond the period of six years
and the assessment is annulled. Since the assessment has been held to be invalid,
the other grounds are not being discussed.
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12. Since the order of the CIT(A) has attained finality as
nothing contrary brought to our notice, therefore, the assessment
for A.Y. 2012-13 has to be u/s. 153C/153A of the IT Act. Since
the AO has not issued the mandatory notice u/s. 153 C as
admitted by the AO in his reply to the information obtained by the
assessee under RTI Act, therefore, the mandatory procedure
prescribed u/s. 153 C has been violated and, therefore,
assessment order so passed by the AO is not in accordance with
law. Hence, the same has to be quashed. We accordingly hold
that the assessment order framed by the AO u/s. 143 (3) / 153 C
and 153 A is void ab initio and, therefore, has to be quashed. The
ground raised by the assessee is accordingly allowed.
13. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on 17.02.2020.
Sd/- Sd/-
(KULDIP SINGH) (R.K PANDA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
*Neha*
Date:- 17.02.2020
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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Date of dictation 05.02.2020
Date on which the typed draft is placed before the dictating 05.02.2020
Member
Date on which the approved draft comes to the Sr.PS/PS 17.02.2020
Date on which the fair order is placed before the Dictating 17.02.2020
Member for Pronouncement
Date on which the fair order comes back to the Sr. PS/ PS 17.02.2020
Date on which the final order is uploaded 17.02.2020
on the website of ITAT
Date on which the file goes to the Bench Clerk 17.02.2020
Date on which file goes to the Head Clerk.
The date on which file goes to the Assistant Registrar for
signature on the order
Date of dispatch of the Order
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