VENKATESAN RAVI,CHENNAI vs. ACIT NON CORPORATE CIRCLE-7(1), CHENNAI

O R D E R

PER V. DURGA RAO, JUDICIAL MEMBER:

by the assessee before the Tribunal is that “the Assessing Officer ought to have been passed assessment order under section 153C of the Income Tax Act, 1961 [“Act” in short] and not under section 144 r.w.s. 147 of the Act. The issue raised before the Tribunal by the assessee has also been raised before the ld. CIT(A). After considering the submissions of the assessee, the ld. CIT(A) has observed and held as under: On perusal of the assessment order, statement of facts, grounds of appeal and written submissions, the appeal is adjudicated as under: The 7 grounds of appeal are condensed into 3 grounds viz.,

1. Legality of reopening u/s 147 of the Act instead of u/s 153C of the IT Act.

2. On merits, whether AO was justified in arriving at the undisclosed income by applying the uniform rate of ₹.500/- per patient.

3. Determination of tax and interest without considering TDS credit as per Form 26AS. a) Issue of notice being issued u/s 147 of the Act and not u/s 153C thereby raising questions of legality of the assessment proceedings. Though both provisions of the Act, viz: Section 147 and Section 153C empower the A.O. to assessment and re-assessment the income escaped from assessment, both section are dealing with different situations. Section 147 comes into operation when the A.O. believes that there is escapement of income chargeable to tax, either from the return already filed or through some external material evidence which come to his knowledge, which shows the escapement of income. Section 153C would come into operation however, in a situation where incriminating documents were seized in the case of a search in another case. In a recent case of CIT vs Sinhgad Technical Education Society [84 Taxmann.com 290(Sc)]2017 Hon'ble Supreme court has held that proceedings u/s 153C of the Act can be initiated against a person only if the seized materials "Belonged" to that person. It is not sufficient for the Revenue to urge that the seized document "pertains to the person". Supreme Court, while affirming the judgment of the Bombay High Court, approved the decision of the Gujarat High Court in Kamlesh bhai Dharamshi Bhai Patel vs CIT-Ill, (2013)263 CTR(Guj)362, that a document seized should "belong to a person other than the person referred to" in Sec 153A of the Act. I find that from the records obtained from the A.O.'s office, the information pertaining to "unaccounted consultation fees collected" by doctors was obtained in the course of Post-Search proceedings in the case of Apollo Main Hospitals and thereafter, forwarded to the concerned assessing officers for further necessary action. Therefore this is not a case where incriminating documents "belonging" to the appellant were found in the Search premises. Hence, I have no hesitation in upholding the A.O.'s action in re-opening the case u/s 147 of the Act, which is held to be in order and as per law. This ground challenging A.O.'s re-opening u/s 147 of the Act therefore stands dismissed.