JITENDER JAIN,NEW DELHI vs. ITO WARD - 39(3), NEW DELHI

1. 1. With this appeal the assessee has challenged the correctness of the order of the CIT(A)-13, New Delhi dated 28.03.2019 pertaining to A.Y. 2009-10.

Briefly stated the facts of the case are that an information was received from the office of DDIT (Investigation), Unit -5 (1), Delhi by which the AO came to know that during the course of search and seizure action u/s. 132 of the Act carried out on 27.06.2013 in Santosh Group of Institutions and Doctor P. Mahalingam, Ghaziabad certain documents were seized from which it came to the notice that the assessee has paid capitation fees/ donation for the admission of Deepali Jain and in all likely hood the source of such payment is from undisclosed sources of the assessee.

Accordingly the assessment was reopened. During the course of the assessment proceedings the assessee was confronted with the documents. It was brought to the notice of the assessee that the documents seized indicates that regular fees of Rs.18.12. lacs and capitation of Rs. 12 lacs totalling to Rs. 29.12 lacs were paid in respect of daughter of the assessee Deepali Jain.

The assessee strongly denied the transaction found to be recorded in the seized documents and stated that all the fees have been paid through banking channel. The contention of the assessee was dismissed by the AO who was of the firm belief that the assessee has failed to produce any evidences against the documents seized during the course of search and seizure action u/s. 132 of the Act. Accordingly the addition of Rs. 24.08 lacs was made.

Assessee carried the matter before the CIT(A) but without any success.

Before me the counsel for the assessee vehemently stated that the entire assessment has been framed on the basis of the documents seized during the course of search and seizure operation conducted on M/s. Santosh Group of Institutions. It is the say of the counsel that since the documents belong to the assessee the AO should have initiated the proceedings u/s. 153 C of the Act. The counsel strongly relied upon the decision in the case of Girish Chand Sharma in and pointed out that on identical set of facts the assessment was framed u/s. 147 of the Act which was set aside by the Tribunal holding that the assessment should have been framed u/s. 153 C. 8. Per contra the DR strongly supported the findings of the AO. 9. It is the say of the DR that provisions of section 153 C of the Act do not apply on the facts of the case as no documents were seized and only information was found in the seized documents which were used for reopening the assessment and, therefore, the assessment framed u/s. 147 r.w.s 143 (3) of the Act is validly made and deserves to be upheld. 10. I have carefully considered the orders of the authorities below and have given a thoughtful consideration to the rival submissions. At the very outset I have to say that it is incorrect to say that no documents were seized during the course of search and seizure proceedings. I find following documents were used during the course of the assessment proceedings of the assessee -:

These documents belong to the assessee and, therefore, the AO should have framed assessment u/s. 153 C of the Act.

I find that on identical set of facts were there in the case of Girish Chand Sharma in wherein similar reasoning were given for reopening of the assessment. I further find that similar set of facts were there in the case of Sushil Gaur in ITA No.1500/Del/2018 which decision was used in the case of Girish Chand Sharma (supra). The relevant findings of the coordinate Bench read as under :-

On finding parity of facts I do not find any reason to differ from the findings of the coordinate bench (supra) and following the findings of the coordinate bench I am inclined to hold that the notice issued u/s. 148 and the assessment framed u/s. 147 of the Act is void-ab-initio.

Since the assessment has been quashed I do not find it necessary to dwell into the merits of the case. Accordingly, the appeal filed by the assessee is allowed.

In the result, the appeal filed by the assessee is allowed.