Shri Ali Hassan, Dehradun V. ITO, Dehradun

ITA 1573/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3105 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KUMAR SAROHA
• Assessee Lawyers: GIRISH SHUKLA
• Keywords: Principle of natural justice
• Section: 143(3); 153A; 148; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI. BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND DR. M.L. MEENA, ACCOUNTANT MEMBER ITA NO.1571/DEL./2015 (ASSESSMENT YEAR : 2007-08) SHRI MEER HASSAN, VS. ITO, WARD 2 (1), VILLAGE AJABPUR KALAN, DEHRADUN. PO AJABPUR, DEHRADUN. (PAN : ACGPH0056B) ITA NO.1573/DEL./2015 (ASSESSMENT YEAR : 2007-08) SHRI ALI HASSAN, VS. ITO, WARD 2 (1), VILLAGE AJABPUR KALAN, DEHRADUN. PO AJABPUR, DEHRADUN. (PAN : AHJPH7860F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GIRISH SHUKLA, ADVOCATE REVENUE BY : SHRI ASHOK KUMAR SAROHA, CIT DR DATE OF HEARING : 04.02.2019 DATE OF ORDER : 28.02.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ITA NOS.1571 & 1573/DEL./2015 2 SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOS ED OF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. THE APPELLANTS, SHRI MEER HASSAN & SHRI ALI HASS AN (HEREINAFTER REFERRED TO AS THE ASSESSEES) BY FIL ING THE PRESENT APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDERS BO TH DATED 23.12.2014 PASSED BY LD. CIT (APPEALS), DEHRADUN Q UA THE ASSESSMENT YEAR 2007-08 ON THE IDENTICAL GROUNDS IN TER ALIA THAT :- 1. THAT THE NOTICE ISSUED UNDER SECTION 148 AND TH E ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 ARE I LLEGAL, BAD IN LAW & WITHOUT JURISDICTION. 2. THAT IN VIEW OF THE FACTS & CIRCUMSTANCES OF THE CASE THE CIT (APPEAL) HAS ERRED ON FACTS & IN LAW IN DISMISS ING THE APPEAL OF THE ASSESSEE AND IN UPHOLDING THE ORDER P ASSED BY THE AO. 3. THAT THE INCOME HAS BEEN WRONGLY & ILLEGALLY ASS ESSED AT RS.51,10,000/- AS AGAINST RS.80,890/- IN CASE OF ME ER HASSAN AND RS.50,33,640/- AGAINST RS.97,950/- IN CASE OF A LI HASSAN, DECLARED BY THE ASSESSEE. 4. THAT THE ADDITION OF LONG TERM CAPITAL GAIN HAS BEEN WRONGLY & ILLEGALLY MADE AND IT IS WRONGLY UPHELD B Y CIT (APPEAL). 5. THAT THE ADDITION HAS BEEN MADE & THE ORDER HAS BEEN PASSED WITHOUT GIVING PROPER & REASONABLE OPPORTUNI TY TO THE ASSESSEE. 6. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE CASE THE CIT (APPEAL) HAS ERRED ON FACTS & LAW IN UPHOLD ING THE ADDITION OF RS. 50,29,110/- AND RS.49,35,600/- IN C ASE OF MEER HASSAN AND ALI HASSAN RESPECTIVELY ON ACCOUNT OF AL LEGED ITA NOS.1571 & 1573/DEL./2015 3 UNDISCLOSED SALE CONSIDERATION RECEIVED BY ASSESSEE & HAS ALSO ERRED IN RELYING ON DOCUMENT FOUND FROM THIRD PARTY . 7. THAT THE CIT (APPEAL) HAS FAILED TO APPRECIATE T HAT THE ALLEGED SALE CONSIDERATION WAS NEVER ACCRUED NOR RE CEIVED BY THE ASSESSEE, HENCE THE ADDITION IS ILLEGAL & BAD IN LA W. 8. THAT THE ADDITIONS MADE BY THE AO AND UPHOLDING THE CIT (APPEAL) ARE UNJUST, UNLAWFUL AND ARE BASED ON NEAR SURMISES AND CONJUNCTURES AND ALSO HIGHLY EXCESSIVE . THE ADDITIONS CANNOT BE JUSTIFIED BY ANY MATERIAL ON RE CORD. 9. THAT THE EXPLANATION GIVEN AND MATERIAL AVAILABL E ON RECORD HAS NOT BEEN PROPERLY CONSIDERED & THE ADDIT ION HAS BEEN MADE AGAINST THE PRINCIPLE OF NATURAL JUSTICE. . 10. THAT THE INTEREST U/S 234A, 2348, 234C HAS BEEN WRONGLY AND ILLEGALLY CHARGED BY A.O. AND THE SAME IS HIGHL Y EXCESSIVE. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF SEARCH AN D SEIZURE OPERATION AT THE PREMISES OF M/S. R.B. ENTERPRISES BELONGING TO SHRI RAKESH BATTA GROUP OF CASES WHEREIN CERTAIN LO OSE PAPERS MARKED AS LP-103 A-1 PAGES 30 WAS SEIZED SHOWING TH E FACT THAT M/S. R.B. ENTERPRISES HAS PURCHASED LAND FROM MEER HASSAN AND ALI HASSAN, ASSESSEES IN THESE CASES, FOR A TOTAL S ALE CONSIDERATION OF RS.52,43,720/-. ON THE BASIS OF THESE EVIDENCES , ASSESSING OFFICER ISSUED A SHOW-CAUSE NOTICE TO THE ASSESSEES ; THAT AS AGAINST THE SALE CONSIDERATION OF RS.52,43,720/- SHOWN IN T HE SALE DEED, THE PROPERTY IN QUESTION WAS ACTUALLY SOLD FOR RS.2,53, 60,140/- AND WHY IT SHOULD NOT BE PRESUMED THAT THE ASSESSEES HA VE RECEIVED A ITA NOS.1571 & 1573/DEL./2015 4 SUM OF RS.2,01,16,420/- IN CASH OVER AND ABOVE THE SALE PROCEEDS MENTIONED IN THE SALE DEED. DECLINING THE CONTENTI ONS RAISED BY THE ASSESSEE THAT THEY ALONG WITH THEIR FAMILY MEMBERS GOT THE SALE CONSIDERATION AS PER SALE DEED AND NO AMOUNT OTHER THAN MENTIONED IN THE SALE DEED WAS EVER PAID TO THEM AND MEMORAND UM OF UNDERSTANDING ANNEXURE LP-103 A-1 PAGES 30 IS AN IR RELEVANT DOCUMENT, AO PROCEEDED TO COMPUTE THE CAPITAL GAIN OF THE ASSESSEE BY TAKING INTO CONSIDERATION THE TOTAL SAL E CONSIDERATION AT RS.2,53,60,140/- AND CALCULATED THE CAPITAL GAINS A T RS.51,06,435/- & RS.50,29,105/- IN CASE OF MEER HASSAN & ALI HASSA N RESPECTIVELY AND THEREBY ASSESSED THE INCOME OF ME ER HASSAN & ALI HASSAN AT RS.51,10,000/- & RS.50,33,640/- PLUS AGRICULTURAL INCOME OF RS.1,54,510/- EACH RESPECTIVELY. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF APPEALS WHO HAS CONFIRMED THE ADDITION BY DISMISSIN G THE APPEALS. FEELING AGGRIEVED, THE ASSESSEES HAVE COME UP BEFOR E THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.1571 & 1573/DEL./2015 5 6. ASSESSEES BY MOVING APPLICATION DATED 13.09.2018 SOUGHT TO RAISE THE ADDITIONAL GROUND NO.1A WHICH IS TO THE F OLLOWING EFFECT :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW, THE A.O. HAS ERRED IN INITIATING PROCEEDIN GS ON THE BASIS OF INCRIMINATING MATERIAL OF APPELLANT FO UND IN SEARCH OF OTHER PERSONS U/S 147 OF THE ACT AND C IT (APPEALS) IN UPHOLDING SUCH ASSESSMENT, WHEN PROVISIONS OF SECTION 153C FOR ASSESSMENT ONLY WERE APPLICABLE AND NOT OF SECTION 147 & SECTION 148. 7. IT IS CONTENDED BY THE LD. AR FOR THE ASSESSEE T HAT THIS ADDITIONAL GROUND COULD NOT BE RAISED DUE TO INADVE RTENCE WHICH WAS NEITHER WILLFUL NOR INTENTIONAL. THE LD. DR FO R THE REVENUE OPPOSED THE APPLICATION FOR ADDITIONAL GROUND ON TH E GROUND THAT THE ASSESSEE HAS FIRST TIME RAISED THIS GROUND WHIC H IS NOT PERMISSIBLE UNDER LAW. LD. DR FOR THE REVENUE ALSO RELIED ON THE JUDGMENTS IN CASES OF CIT VS. MANISH BUILDWELL (P.) LTD. (2011) 16 TAXMANN.COM 27 (DELHI), KESHAV MILLS CO. LTD. VS . CIT (1965) 56 ITR 365 AND GOETZE INDIA LTD. VS. CIT 2006-TIOL- 198-SC-IT . 8. HOWEVER, WE ARE OF THE CONSIDERED VIEW THAT THIS GROUND WAS VERY MUCH RAISED BY THE ASSESSEE AS GROUND NO.3 BEF ORE THE LD. CIT (A) WHO HAS DETERMINED THE SAME VIDE IMPUGNED ORDER . MOREOVER, LEGAL GROUND CAN BE RAISED BY THE PARTIES TO THE LI S AT ANY STAGE. MOREOVER, ASSESSEE HAS ALREADY TAKEN THIS GROUND AS GROUND NO.1 BEFORE THE TRIBUNAL BUT HE HAS SOMEHOW MOVED THIS A PPLICATION TO ITA NOS.1571 & 1573/DEL./2015 6 MAKE THE GROUND MORE FORMAL AND SPECIFIC IN THE FOR M OF ADDITIONAL GROUND. 9. NO DOUBT, HONBLE SUPREME COURT IN GOETZE INDIA LTD. (SUPRA) HELD THAT THE JURISDICTION CAN BE CHALLENGE D WITHIN LIMITED TIME PERIOD MAXIMUM ONE MONTH FROM THE DATE OF RECE IPT OF THE RELEVANT NOTICE BUT, IN THE INSTANT CASE, THIS JURI SDICTIONAL ISSUE WAS CATEGORICALLY RAISED BY THE ASSESSEE BEFORE THE AO AS IS EVIDENT FROM PAGE 13 OF THE ASSESSMENT ORDER AS WELL AS BEF ORE LD. CIT (A) AS GROUND NO.3. SO, THE CONTENTIONS RAISED BY THE LD. DR IS MISCONCEIVED BEING AGAINST THE FACTS ON RECORD AND THE JUDGMENTS RELIED UPON ARE NOT APPLICABLE TO THE FACTS AND CIR CUMSTANCES OF THE CASE. THUS, ADDITIONAL GROUND SOUGHT TO BE RAISED BY THE ASSESSEE IS ALLOWED BEING NECESSARY FOR COMPLETE ADJUDICATION O F THE CONTROVERSY AT HAND. 10. WE WOULD LIKE TO DECIDE THE ADDITIONAL GROUND N O.1A WHICH IS A LEGAL ISSUE FIRST. 11. UNDISPUTEDLY, AO INITIALED THE PROCEEDINGS U/S 147 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ON THE B ASIS OF ONE LOOSE PAPER FOUND AND SEIZED, MARKED AS LP-103 A-1 PAGES 30, WHICH IS A MEMORANDUM OF UNDERSTANDING CONTAINING DETAILS OF SALE CONSIDERATION QUA THE LAND SOLD BY BOTH THE ASSESSE ES IN FAVOUR OF M/S. R.B. ENTERPRISES. IT IS ALSO NOT IN DISPUTE T HAT ORIGINALLY, ITA NOS.1571 & 1573/DEL./2015 7 ASSESSMENT WAS COMPLETED U/S 153C READ WITH SECTION 153A OF THE ACT VIDE ORDER DATED 30.12.2011 ON THE BASIS OF SAM E SEIZED MATERIAL LP-103 A-1 PAGES 30. IT IS ALSO NOT IN DI SPUTE THAT ASSESSMENT ORDER DATED 30.12.2011, AVAILABLE AT PAG ES 20 TO 30 OF THE PAPER BOOK, PASSED U/S 153C READ WITH SECTION 1 53A WAS ANNULLED BY LD. CIT (A) VIDE ORDER DATED 29.08.2012 , AVAILABLE AT PAGES 31 TO 38 OF THE PAPER BOOK. IT IS ALSO NOT I N DISPUTE THAT THE LD. CIT (A) VIDE ORDER DATED 28.08.2012 OBSERVED TH AT ON THE BASIS OF SOURCE OF INFORMATION I.E. DOCUMENT LP-103 A-1, PROCEEDING U/S 147 OF THE ACT WAS REQUIRED TO BE INITIATED. 12. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRC UMSTANCES OF THE CASE, THE FIRST QUESTION FOR DETERMINATION IN T HIS CASE IS :- AS TO WHETHER ON THE BASIS OF ALLEGED INCRIMINATIN G MATERIAL SEIZED DURING SEARCH AT THE PREMISES OF M/ S. R.B. ENTERPRISES ON 04.03.2009, AO AS WELL AS CIT ( A) HAVE ERRED IN INITIATING THE PROCEEDINGS U/S 147 OF THE ACT. 13. THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMP UGNED ORDER CONTENDED THAT WHEN THE AO HAS SPECIFICALLY RELIED UPON MATERIAL/ DOCUMENTS LP-103 A-1 PAGES 30 SEIZED DURING THE SEA RCH OPERATION CONDUCTED AT THE PREMISES OF M/S. R.B. ENTERPRISES, HE HAD THE AUTHORITY TO ASSESS THAT PERSON U/S 153C OF THE ACT AS THE PROVISIONS CONTAINED U/S 153C ARE NON-OBSTANTE PROVISIONS WHIC H SPECIFICALLY ITA NOS.1571 & 1573/DEL./2015 8 EXCLUDE THE OPERATION OF SECTION 147 OF THE ACT AND AS SUCH, ASSESSMENT FRAMED IN THIS CASE U/S 147 IS NOT SUSTA INABLE IN THE EYES OF LAW. 14. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVE NUE RELIED UPON THE ORDER PASSED BY THE LD. CIT (A). 15. FOR FACILITY OF REFERENCE, PROVISIONS CONTAINED U/S 153C ARE EXTRACTED FOR READY PERUSAL AS UNDER :- 153C. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , WHERE THE ASSESSING OFFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR R EQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINE D THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A , THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTH ER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A , IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR D OCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON TH E DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON 17 [FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE AND] FOR THE RELEVANT ASSESSMEN T YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A : PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REF ERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB- SECTION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON : ITA NOS.1571 & 1573/DEL./2015 9 PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES 18 MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, S PECIFY THE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON , IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NO TICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX A SSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUI SITION IS MADE 19 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS AS R EFERRED TO IN SUB-SECTION (1) OF SECTION 153A ] EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS S EIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER S UB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN M ADE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A . 16. BARE PERUSAL OF THE PROVISIONS CONTAINED U/S 15 3C WHICH IS A NON-OBSTANTE PROVISION SHOWS THAT WHEN THE ASSESSME NT ORDER SHOWS THAT THE ASSESSMENT PROCEEDINGS WERE TO BE IN ITIATED ON THE BASIS OF INCRIMINATING MATERIAL FOUND IN SEARCH OF A THIRD PARTY, AS IN THE PRESENT CASE, THE PROVISIONS CONTAINED U/S 1 53C ARE ITA NOS.1571 & 1573/DEL./2015 10 APPLICABLE WHICH SPECIFICALLY EXCLUDES APPLICATION OF SECTIONS 147 & 148 OF THE ACT. 17. IN THE INSTANT CASE, UNDISPUTEDLY, ORIGINALLY A SSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE PRESENT ASSE SSEES U/S 153C READ WITH SECTION 153A OF THE ACT WHICH WAS COMPLET ED VIDE ORDER DATED 30.12.2011 BUT THE SAME WERE ANNULLED BY LD. CIT (A) VIDE ORDER DATED 28.08.2012 ON THE GROUND THAT PROPER CO URSE IN THIS CASE WAS TO INITIATE PROCEEDINGS U/S 147 OF THE ACT AND MAKE ASSESSMENT ACCORDINGLY. THE SAID ASSESSMENT U/S 15 3C READ WITH SECTION 153A WAS COMPLETED ON THE BASIS OF SOME SEI ZED MATERIAL/DOCUMENT LP-103 A-1 PAGES 30, WHICH IS A M EMORANDUM OF UNDERSTANDING ALLEGED TO HAVE BEEN ENTERED INTO BETWEEN THE ASSESSEES AND M/S. R.B. ENTERPRISES. 18. SO, WE ARE OF THE CONSIDERED VIEW THAT WHEN PRO VISIONS CONTAINED U/S 153C ARE APPLICABLE IN THIS CASE TO I NITIATE ASSESSMENT PROCEEDINGS ON THE BASIS OF SEIZED MATERIAL SEIZED IN CASE OF SOME THIRD PARTY, NOTICE ISSUED U/S 148 OF THE ACT AND S UBSEQUENT ASSESSMENT FRAMED U/S 147 OF THE ACT IS VOID AB INI TIO AND AS SUCH, ASSESSMENT FRAMED U/S 147/143(3) OF THE ACT IS LIAB LE TO BE QUASHED. 19. IDENTICAL ISSUE HAS BEEN DECIDED BY THE COORDIN ATE BENCH OF THE TRIBUNAL IN CASE CITED AS RAJAT SHUBRA CHATTERJI VS. ACIT ITA NOS.1571 & 1573/DEL./2015 11 ITA NO.2430/DEL/2015 ORDER DATED 20.05.2016 BY RETURNING FOLLOWING FINDINGS :- 7. ON HAVING GONE THROUGH THE DECISIONS CITED ABOV E ESPECIALLY THE DECISION OF AMRITSAR BENCH IN THE CA SE OF ITO VS. ARUN KUMAR KAPOOR (SUPRA), WE FIND THAT IN THAT CAS E AS IN THE PRESENT CASE BEFORE US, REASSESSMENT WAS INITIATED ON THE BASIS OF INCRIMINATING MATERIAL FOUND IN SEARCH OF THIRD PAR TY AND THE VALIDITY OF THE SAME WAS CHALLENGED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) AND THE LEARNED CIT(APPEALS) V ITIATED THE PROCEEDINGS. THE SAME WAS QUESTIONED BY THE REVENUE BEFORE THE ITAT AND THE ITAT AFTER DISCUSSING THE CASES OF THE PARTIES AND THE RELEVANT PROVISIONS IN DETAILS HAS COME TO THE CONCLUSION THAT IN THE ABOVE SITUATION, PROVISIONS OF SEC. 153C WER E APPLICABLE WHICH EXCLUDES THE APPLICATION OF SECTIONS 147 AND 148 OF THE ACT. THE ITAT HELD THE NOTICE ISSUED UNDER SEC. 148 AND PROCEEDINGS UNDER SEC. 147 AS ILLEGAL AND VOID AB I NITIO. IT WAS HELD THAT ASSESSING OFFICER HAVING NOT FOLLOWED PRO CEDURE UNDER SEC. 153C, REASSESSMENT ORDER WAS RIGHTLY QUASHED B Y THE LEARNED CIT(APPEALS). IN THE PRESENT CASE BEFORE US , IT IS AN ADMITTED FACT, AS ALSO EVIDENT FROM THE REASONS REC ORDED AND THE ASSESSMENT ORDER THAT THE INITIATION OF REOPENING P ROCEEDINGS WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF INFOR MATION RECEIVED FROM THE DIRECTORATE OF INCOME-TAX (INV.) ON THE BASIS OF SEARCH & SEIZURE OPERATION CONDUCTED AT THE PREMISE S OF ROCK LAND GROUP OF CASES AND THE DOCUMENTS RELATED TO TH E ASSESSEE FOUND DURING THE COURSE OF SEARCH WERE MADE AVAILAB LE TO THE ASSESSING OFFICER OF THE PRESENT ASSESSEE. WE THUS RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE ITAT IN THE CASE OF ACIT VS. ARUN KAPUR 140 TTJ 249 (AMRITSAR ) HOLD THAT PROVISIONS OF SEC. 153C OF THE ACT WERE APPLICABLE IN THE PRESENT CASE FOR FRAMING THE ASSESSMENT, IF ANY, WHICH EXCL UDES THE APPLICATION OF SEC. 147 OF THE ACT, HENCE, NOTICE I SSUED UNDER SEC. 148 OF THE ACT AND ASSESSMENT FRAMED IN FURTHERANCE THERETO UNDER SEC. 147 READ WITH SECTION 143(3) OF THE ACT ARE VOID AB INITIO. THE REASSESSMENT IN QUESTION IS ACCORDINGLY QUASHED. THE GROUND NO.1 IS ACCORDINGLY ALLOWED. 20. SIMILARLY, COORDINATE BENCH OF THE TRIBUNAL IN CASE CITED AS ITO VS. ARUN KUMAR KAPOOR (2011 140 TTJ 249 HAS UPHELD THE REASSESSMENT ORDER QUASHED BY THE LD. CIT (A) BY RE TURNING FOLLOWING FINDINGS :- ITA NOS.1571 & 1573/DEL./2015 12 REASSESSMENT-VALIDITY-REASSESSMENT ON THE BASIS OF INCRIMINATING MATERIAL FOUND IN SEARCH OF THIRD PAR TY-PROVISIONS OF S. 153C ARE APPLICABLE WHICH EXCLUDE THE APPLICA TION OF SS. 147 AND 148 HENCE NOTICE ISSUED UNDER S. 148 AND PROC EEDINGS UNDER S. 147 ARE ILLEGAL AND VOID AB INITIO AO H AVING NOT FOLLOWED PROCEDURE UNDER S. 153C, REASSESSMENT ORDE R WAS RIGHTLY QUASHED BY THE CIT (A). 21. FOLLOWING THE MANDATE OF SECTION 153C AND ORDER S PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL IN CASES OF RAJAT SHUBRA CHATTERJI VS. ACIT AND ITO VS. ARUN KUMAR KAPOOR (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT ASSESSMENT FRAMED I N THIS CASE U/S 147/143 (3) OF THE ACT ON THE BASIS OF INCRIMINATIN G MATERIAL UNEARTHED IN CASE OF A THIRD PARTY IS NOT SUSTAINAB LE, HENCE ORDERED TO BE QUASHED WITHOUT ENTERING INTO THE MERITS OF T HE CASE. SO, OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS. CONSEQUENTLY, BOTH THE APPEALS FILED BY THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 28 TH DAY OF FEBRUARY, 2019. SD/- SD/- (DR. M.L. MEENA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 28 TH DAY OF FEBRUARY, 2019 TS ITA NOS.1571 & 1573/DEL./2015 13 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), DEHRADUN. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.