THE DY. COMMISSIONER OF INCOME TAX, CENRAL CIRCLE-5(1), MUMBAI vs. NITIN RAJMAL SHAH, MUMBAI

2. Briefly stated, facts of the case are that in this case the Briefly stated, facts of the case are that in this case the Briefly stated, facts of the case are that in this case the Assessing Officer has passed Assessing Officer has passed two assessment order assessment orders u/s 153A dated dated dated 30.09.2021. 30.09.2021. 30.09.2021. The The The First First First order order order was was was having having having document document document identification No. DIN ITBA/AST/S/153A/2021 identification No. DIN ITBA/AST/S/153A/2021-22/1036093516(1) 22/1036093516(1), was uploaded on the Income uploaded on the Income-tax portal and the second order and the second order having document identification number as document identification number as DIN ITBA/COM/S/91/21 DIN ITBA/COM/S/91/21- 21/1036656245(1) which were issued physically. The Ld. CIT(A) 6245(1) which were issued physically. The Ld. CIT(A) 6245(1) which were issued physically. The Ld. CIT(A) after a detailed finding on the issue after a detailed finding on the issue-in-dispute held the first order dispute held the first order passed u/s 153A, where no addition was made by the Assessing where no addition was made by the Assessing where no addition was made by the Assessing Officer, as valid. The relevant finding of the Ld. CIT(A) on the issue . The relevant finding of the Ld. CIT(A) on the issue- . The relevant finding of the Ld. CIT(A) on the issue in-dispute is reproduced as under: dispute is reproduced as under:

Nitin Rajmal Shah 3 ITA No. 2782/M/2022 “4.1 During the appellate proceedings, the AR of the 4.1 During the appellate proceedings, the AR of the 4.1 During the appellate proceedings, the AR of the appellant has raised an objection that in the case of the appellant has raised an objection that in the case of the appellant has raised an objection that in the case of the appellant for A.Y. 2019 appellant for A.Y. 2019-20, the assessment order u/s. 20, the assessment order u/s. 153A rws 143(3) was passed on 30.09.2021 and it was 153A rws 143(3) was passed on 30.09.2021 and it was 153A rws 143(3) was passed on 30.09.2021 and it was uploaded in the ITBA system and received by the ded in the ITBA system and received by the ded in the ITBA system and received by the appellant on 30.09.2021. The order us. 153A ws 143(3) appellant on 30.09.2021. The order us. 153A ws 143(3) appellant on 30.09.2021. The order us. 153A ws 143(3) dated dated dated 30.09.2021 30.09.2021 30.09.2021 was was was passed passed passed having having having DIN DIN DIN ITBA/AST/S/153A/2021 ITBA/AST/S/153A/2021-22/1036093516(1) 22/1036093516(1) dated dated 30.09.2021. Subsequently, another order u/s. 153A rws 30.09.2021. Subsequently, another order u/s. 153A rws 30.09.2021. Subsequently, another order u/s. 153A rws 143(3) was passed by t 143(3) was passed by the AQ manually on 30.09.2021 he AQ manually on 30.09.2021 which was physically received by the AR of the appellant. which was physically received by the AR of the appellant. which was physically received by the AR of the appellant. In the first order dated 30.09.2021, the A accepted the In the first order dated 30.09.2021, the A accepted the In the first order dated 30.09.2021, the A accepted the returned income amounting to Rs. 4,57,34,580/ returned income amounting to Rs. 4,57,34,580/- shown in shown in the Return of Income filed us. 153A on 04.12.2020 and in the Return of Income filed us. 153A on 04.12.2020 and in the Return of Income filed us. 153A on 04.12.2020 and in the the the notice notice notice u/s. u/s. u/s. 156 156 156 of of of the the the Act, Act, Act, bearing bearing bearing DIN DIN DIN ITBA/AST/S/156/2021 ITBA/AST/S/156/2021-22/1036093558(1) 22/1036093558(1) dated dated 30.09.2021, the A raised a demand of Rs. 3/ 30.09.2021, the A raised a demand of Rs. 3/ 30.09.2021, the A raised a demand of Rs. 3/-. In the second order us. 153A dated 30.09.2021, the demand second order us. 153A dated 30.09.2021, the demand second order us. 153A dated 30.09.2021, the demand notice was issued u/s. 156 dated 30.09.2021 in which a notice was issued u/s. 156 dated 30.09.2021 in which a notice was issued u/s. 156 dated 30.09.2021 in which a démand of Rs: 90,05,182/ Rs: 90,05,182/- was raised for A.Y. 2019 was raised for A.Y. 2019-20.

4.2 There were 2 orders us. 153A ws 143(3) for A.Y. 2019 There were 2 orders us. 153A ws 143(3) for A.Y. 2019- There were 2 orders us. 153A ws 143(3) for A.Y. 2019 20 made by the AO, therefore, a remand report was called 20 made by the AO, therefore, a remand report was called 20 made by the AO, therefore, a remand report was called for from the AO vide letter No: CIT(A) 53/Late Nitin R. for from the AO vide letter No: CIT(A) 53/Late Nitin R. for from the AO vide letter No: CIT(A) 53/Late Nitin R. Shah/Remand Report/2022 Shah/Remand Report/2022-23 dated 12.04.20 23 dated 12.04.2022. In response to that, the AO submitted a remand report/vide response to that, the AO submitted a remand report/vide response to that, the AO submitted a remand report/vide letter DQlf CC 5(1)/Remand Report/2022 letter DQlf CC 5(1)/Remand Report/2022-23 dated 23 dated 18.04.2022 which was forwarded by the Addi.CIT, CR 5, 18.04.2022 which was forwarded by the Addi.CIT, CR 5, 18.04.2022 which was forwarded by the Addi.CIT, CR 5, Mumbai. In the remand report, the AO has stated that Mumbai. In the remand report, the AO has stated that Mumbai. In the remand report, the AO has stated that -

Nitin Rajmal Shah 4 ITA No. 2782/M/2022

3. In respect of remand called for by the Ld. CIT(A), 3. In respect of remand called for by the Ld. CIT(A), 3. In respect of remand called for by the Ld. CIT(A), it is clarified that the order received by the assessee it is clarified that the order received by the assessee it is clarified that the order received by the assessee vide DIN ITBA/COM/S/91/21 vide DIN ITBA/COM/S/91/21-21/1036656245(1) is 21/1036656245(1) is considered as valid order. As per this order, the total onsidered as valid order. As per this order, the total onsidered as valid order. As per this order, the total income of the assessee is determined at Rs. income of the assessee is determined at Rs. income of the assessee is determined at Rs. 6,92,44,580/ 6,92,44,580/- after making addition us 69 of the I.T. making addition us 69 of the I.T. Act, 1961 of Rs. 2.35.10.000/ Act, 1961 of Rs. 2.35.10.000/- as commission as commission income earned on account of unsecured loans. The income earned on account of unsecured loans. income earned on account of unsecured loans. assessee assessee has also filed appeal against the same has also filed appeal against the same order 4.3 The assessment orders passed by the AQ wis. 153A The assessment orders passed by the AQ wis. 153A The assessment orders passed by the AQ wis. 153A rws 143(3) dated 30.09.2021 (uploaded on the system), rws 143(3) dated 30.09.2021 (uploaded on the system), rws 143(3) dated 30.09.2021 (uploaded on the system), another order us. 153A ws 143(3) dated another order us. 153A ws 143(3) dated 30.09.2021 30.09.2021 (passed (passed (passed manually), the submissions made by the manually), manually), the submissions made by the submissions made by the the appellant as well as the remand report of the AO also have nt as well as the remand report of the AO also have nt as well as the remand report of the AO also have been considered. been considered. In the case of the appellant, a search In the case of the appellant, a search was conducted u/s. 132 on 06.11.2019 was conducted u/s. 132 on 06.11.2019 A notice us. 153A A notice us. 153A was issued on 04.12.2020 and in response to that, the was issued on 04.12.2020 and in response to that, the was issued on 04.12.2020 and in response to that, the appellant filed his return of income u/ appellant filed his return of income u/s. 153A showing s. 153A showing

Nitin Rajmal Shah 5 ITA No. 2782/M/2022 total income of Rs. 4,57,34,580/ total income of Rs. 4,57,34,580/-. In one order us. 153A . In one order us. 153A dated 30.09.2021, the AO has accepted the returned dated 30.09.2021, the AO has accepted the returned dated 30.09.2021, the AO has accepted the returned income without making any addition or disallowance and income without making any addition or disallowance and income without making any addition or disallowance and a demand of Rs. 3/ a demand of Rs. 3/- was raised. This order was uploaded was raised. This order was uploaded on on 30.09.2021 30.09.2021 in in the the ITBA ITBA system system with with DIN DIN ITBA/AST/S/153A/2021 ITBA/AST/S/153A/2021-22/1036093516(1) 22/1036093516(1) dated dated 30.09.2021.

Another order us. 153A dated 30.09.2021 for the same Another order us. 153A dated 30.09.2021 for the same Another order us. 153A dated 30.09.2021 for the same assessment year i.e. assessment year i.e. A.Y. 2019-20 was passed by the AO 20 was passed by the AO in which addition of Rs. 2,35,10,000/ in which addition of Rs. 2,35,10,000/- u/s. 69 as u/s. 69 as commission income ear commission income earned on unsecured loans was made unsecured loans was made and a demand of Rs. demand of Rs. 90,05,182 was raised. That order 90,05,182 was raised. That order was communicated communicated to to the the assessee assessee vide vide DIN DIN ITBA/COM/S/91/21 ITBA/COM/S/91/21-21/1036656245(1)Thus, in the case 21/1036656245(1)Thus, in the case of the appellant, 2 orders us. 153A ws 143(3) have been of the appellant, 2 orders us. 153A ws 143(3) have been of the appellant, 2 orders us. 153A ws 143(3) have been passed for the same as passed for the same assessment year i.e. A.Y. 2019 2019-20. In the remand report, the AO has stated that the assessment the remand report, the AO has stated that the assessment the remand report, the AO has stated that the assessment order u/s 153A dated 30.09.2021 communicated to the 153A dated 30.09.2021 communicated to the 153A dated 30.09.2021 communicated to the assessee assessee assessee vide vide vide DIN DIN DIN ITBA/COM/S/91/21- ITBA/COM/S/91/21 ITBA/COM/S/91/21 21/1036656245(1) is a valid order. But the fact is that one 21/1036656245(1) is a valid order. But the fact is that one 21/1036656245(1) is a valid order. But the fact is that one order order us. us. 153A 153A for f A.Y. 2019-20 20 bearing bearing DIN DIN ITBA/AST/S/153A/2021 ITBA/AST/S/153A/2021-22/1036093516(1) passed on 22/1036093516(1) passed on 30.09.2021 30.09.2021 30.09.2021 was was was uploaded uploaded uploaded in in in ITBA ITBA ITBA system system system and and and communicated to the assessee on communicated to the assessee on 30.09.2021.

Another order u/s Another order u/s 153A dated 30.09.2021 for the same 153A dated 30.09.2021 for the same assessment year i.e. assessment year i.e. A.Y. 2019-20 was passed manually 20 was passed manually and and and communicated communicated communicated to to to the the the assessee assessee assessee vide vide vide DIN DIN DIN ITBA/COM/S/91/21 ITBA/COM/S/91/21-21/1036656245(1). 21/1036656245(1). The The DIN DIN

Nitin Rajmal Shah 6 ITA No. 2782/M/2022 sequence clearly indicate that the order which was passed sequence clearly indicate that the order which was passed sequence clearly indicate that the order which was passed manually is the subsequent order. Therefore, for A.Y. manually is the subsequent order. Therefore, for A.Y. manually is the subsequent order. Therefore, for A.Y. 2019-20, the order us. 153 20, the order us. 153A dated 30.09.2021 which was A dated 30.09.2021 which was communicated communicated communicated to to to the the the assessee assessee assessee vide vide vide DIN DIN DIN ITBA/AST/S/153A/2021 ITBA/AST/S/153A/2021-22/1036093516(1) is the first 22/1036093516(1) is the first order and the order and the subsequent order passed manually by the subsequent order passed manually by the AO AO AO u/s. u/s. u/s. 1534 1534 1534 dated dated dated 30.09.2021, 30.09.2021, 30.09.2021, which which which was was was communicated communicated communicated vide vide vide DIN DIN DIN ITBA/COM/S/91/21- ITBA/COM/S/91/21 ITBA/COM/S/91/21 21/1036656245(1) is the second order. 036656245(1) is the second order.

4.4 It is a settled legal position that, for the same 4.4 It is a settled legal position that, for the same 4.4 It is a settled legal position that, for the same assessment year, there cannot be two assessment orders assessment year, there cannot be two assessment orders assessment year, there cannot be two assessment orders under the same section. In the case of the CIT vs. Raj under the same section. In the case of the CIT vs. Raj under the same section. In the case of the CIT vs. Raj Construction Co. [1990] 33 ITD 454 (AHD), the ITAT, Construction Co. [1990] 33 ITD 454 (AHD), the ITAT, Construction Co. [1990] 33 ITD 454 (AHD), the ITAT, Ahmedabad has held that where two different assessment bad has held that where two different assessment bad has held that where two different assessment orders were passed in respect of same assessment year, it orders were passed in respect of same assessment year, it orders were passed in respect of same assessment year, it is second assessment order which could be held invalid. is second assessment order which could be held invalid. is second assessment order which could be held invalid.

In this case, the ITAT has held as under: In this case, the ITAT has held as under:

...In the instant case when the second order was ...In the instant case when the second order was ...In the instant case when the second order was passed, the first order was in existence and the ssed, the first order was in existence and the ssed, the first order was in existence and the second order could not have been passed without second order could not have been passed without second order could not have been passed without setting aside the first order. During the existence of setting aside the first order. During the existence of setting aside the first order. During the existence of the first order the second order could not be passed the first order the second order could not be passed the first order the second order could not be passed and if passed, it was non est. It was of course true and if passed, it was non est. It was of course true and if passed, it was non est. It was of course true that two assessment orders could not be passed but that two assessment orders could not be passed but that two assessment orders could not be passed but what was it that brought about this situation where what was it that brought about this situation where what was it that brought about this situation where there were two assessment orders? The answer there were two assessment orders? The answer there were two assessment orders? The answer was that it was the passing of the second order was that it was the passing of the second order was that it was the passing of the second order

Nitin Rajmal Shah 7 ITA No. 2782/M/2022 which brought about this situation. It was, therefore, which brought about this situation. It was, therefore, which brought about this situation. It was, therefore, the second order which was invalid. The AAC was, econd order which was invalid. The AAC was, econd order which was invalid. The AAC was, therefore, not justified in holding that it was first therefore, not justified in holding that it was first therefore, not justified in holding that it was first assessment order which was invalid. assessment order which was invalid. 4.5 In view of the above facts, the first order passed us. 4.5 In view of the above facts, the first order passed us. 4.5 In view of the above facts, the first order passed us. 153A ws 143(3) dated 153A ws 143(3) dated 30.09.2021 for AY. 2019-20 which 20 which was was communicated commu nicated to to the the assessee assessee vide vide DIN DIN ITBA/AST/S/153A/2021 ITBA/AST/S/153A/2021-22/10360935/16(1) is. a valid 22/10360935/16(1) is. a valid order and the subsequent order passed for the same order and the subsequent order passed for the same order and the subsequent order passed for the same assessment year which was communicated to the assessment year which was communicated to the assessment year which was communicated to the assessee assessee assessee vide vide vide DIN DIN DIN ITBA/COM/S/91/21- ITBA/COM/S/91/21 ITBA/COM/S/91/21 21/1036656245(1) is an invalid order. 21/1036656245(1) is an invalid order.”

Nitin Rajmal Shah 8 ITA No. 2782/M/2022