G.MOHAN,MADURAI vs. ACIT CENTRAL CIRCLE I, MADURAI

ITA Nos.2869 & 2872/Chny/2017 are appeals filed by the Assessee against the consolidated order of the learned Commissioner of Income Tax (Appeals)-19, Chennai in appeal Nos. & 173/16-17 dated 26.09.2017 for the Assessment Years 2015-16 & 2011-12 respectively. As both the appeals relate to the same assessee, they are being disposed off by this common order. & 2872/Chny/2017 :- 2 -:

Mr. T. Banusekar, Chartered Accountant represented on behalf of the Assessee and Ms. R. Anita, JCIT represented on behalf of the Revenue. the appeal of the assessee, it was submitted by the learned Authorized Representative that the assessee is the Proprietor of Sri Amman Jewellers at Madurai. On 01.03.2015, one Mr. J. Sivaram Subramanium was intercepted by the Inspector of Police, Nadu Vattam Police Station, Nilgiris and an amount of Rs.18,11,000/- was seized from him. The said Mr. Sivaram Subramanium claimed to be travelling from Bangalore to Koodalur. He also claimed to be a relative of the assessee herein. It was also informed that the said money belonged to the assessee herein. It was a submission by the learned Authorized Representative that these are undisputed facts. It was further a submission that admittedly the amount of Rs.18,11,000/- found with Mr. Sivaram Subramanium belonged to the assessee. Consequently, a requisition u/s.132A was served on the Inspector of Police, Nadu Vattam Police Station, Nilgiris requisitioning the amount of Rs.18,11,000/- seized from Mr. Sivaram Subramanium. There was also a survey on the business premises of the assessee on 02.03.2015. It was a submission that the assessee had filed his return of income for the Assessment Year 2011-12 on 26.09.2011 and the return had been processed u/s.143(1). No further action had been taken and no assessment proceedings were pending for the Assessment Year 2011-12. & 2872/Chny/2017 :- 3 -: 3.1 As a consequence of the requisition made on the Inspector of Police, notice u/s.153A came to be issued on the assessee for the Assessment Year 2011-12. The assessee had e-filed his return of income in response to the notice u/s.153A disclosing an income of Rs.3,48,820/-, which was the same income offered originally. It was a submission that the assessment was completed u/s.143(3) r.w.s.153A on 28.12.2016, wherein the credit appearing in the account of the assessee to an extent of Rs.19,90,000/- representing loans taken from one Shri G. Janagan had been treated as a bogus loan and was assessed by invoking the provision of Section 69A of the Income Tax Act, 1961 as unexplained money of the assessee. It was a submission that no incriminating documents or evidences had been found in the course of the requisition done u/s.132A relating to the Assessment Year 2011-12 and consequently the notice issued u/s.153A was unsustainable. For this proposition, he placed reliance on the decision of the Hon’ble Supreme Court in the case of Principal Commissioner of Income Tax vs. Meeta Gutgutia reported in [2018] 96 taxmann.com 468 (SC) wherein it has been held as follows: “I. Section 153A of the Income-tax Act, 1961 – Search and seizure (General Principles) – Assessment Years 2001-02 to 2003-04 and 2004-05 – High Court in impugned order held that invocation of section 153A to re-open concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment year – Whether SLP against said decision was to be dismissed – Held, yes [para 2] [In favour of assessee]”. & 2872/Chny/2017 :- 4 -: It was a submission that consequently the assessment order based on the invalid notice u/s.153A may be quashed.

In reply, the Departmental Representative vehemently supported the order of the learned Assessing Officer and the learned CIT(A).

It was a submission by the learned Departmental Representative that the provision of Section 153A did not talk about the requirement of any incriminating material for the purpose to issue notice u/s.153A.

We have considered the rival submissions and perused the material available on record.

The facts in the present case clearly shows that a requisition u/s.132A has been issued by the Assessing Officer to the Inspector of Police, Nadu Vattam Police Station, Nilgiris for the purpose of requisitioning cash seized from Mr. Sivaram Subramanium, which has been claimed to belong to the assessee. Nothing else has been found as consequence of the requisition u/s.132A. The requisition dated 02.03.2015 clearly relates to the Assessment Year 2015-16. No documents, books of accounts or incriminating materials has been found relating to the Assessment Year 2011-12 as a consequence of the requisition u/s.132A. 7.1 Once the Hon’ble Supreme Court lays down a proposition of law, it is deemed that the law is in existence right from the beginning. The Hon’ble Supreme Court has in very categorical terms held by dismissing the SLP that & 2872/Chny/2017 :- 5 -: invocation of the provision of Section 153A to reopen the concluded assessments of the Assessment Years earlier to the year on search is not justified in the absence of incriminating materials found during search qua each such earlier Assessment Years. In the present case, no such incriminating material has been found qua the Assessment Year 2011-12.

This being so, respectfully following the principles laid down by the Hon’ble Supreme Court in the case of Principal Commissioner of Income Tax vs. Meeta Gutgutia referred to supra, it is held that the notice issued u/s.153A for the Assessment Year 2011-12 is unsustainable in law and consequently the assessment passed as a consequence of the said notice issued u/s.153A stands quashed. In the result, the appeal of the assessee in stands allowed. appeal relates to the Assessment Year 2015-16 being the assessment year in which the requisition was served on the Inspector of Police, Nadu Vattam Police Station, Nilgiris requisitioning the cash seized of an amount of Rs.18,11,000/- from Shri. J. Sivaram Subramanium belonging to the assessee herein.

It was submitted by the learned Authorized Representative that for the assessment year being 2015-16, the assessee has filed the original return of income on 01.10.2015 and the intimation u/s.143(1) had been issued on 02.06.2016. It was a submission that the time limit for the issuance of the & 2872/Chny/2017 :- 6 -: notice u/s.143(2) expired on 30.09.2016. It was a submission that the notice u/s.143(2) had been issued on 09.11.2016. It was a submission that the notice issued u/s.143(2) was beyond the time prescribed and consequently the assessment is liable to be anulled. It was further a submission that the notice u/s.142(1) dated 29.06.2016 had been issued on the assessee asking the assessee to prepare true and correct return of the assessee’s income for the assessment year 2015-16. It was a submission that the assessee had admittedly filed his return in response to the notice issued u/s.142(1) on 29.072016. It was a submission that perusal of the provision of Section 142(1) clearly showed that a notice u/s.142(1) can be issued on the assessee calling for his return of income only if the assessee has not filed his original return within the time prescribed u/s.139(1) of the Income Tax Act, 1961. It was a submission that the original return for the relevant assessment year had been filed by the assessee on 01.10.2015 and that was a return u/s.139(1) and therefore the notice issued u/s.142(1) itself calling for the return of the assessee was an invalid notice. It was further a submission that as the notice u/s.143(2) had been issued beyond the prescribed time limit prescribed under the Act, consequently the assessment is liable to be annulled. It was a submission by the learned Authorized Representative that this was a legal ground which is being raised for the first time before the Tribunal and no new facts were required to be verified in so far as the requisite facts were emanating from the assessment order itself. & 2872/Chny/2017 :- 7 -: 11. In reply, the learned Departmental Representative vehemently supported the order of the learned Assessing Officer and the learned CIT(A).

It was a submission that the said legal ground was a fresh ground and the same is not liable to be entertained.

We have heard the rival submissions and perused the materials available on record.

The assessee is entitled to raise the legal ground at any point of time. The only restriction to the raising of the legal ground is that no new or fresh facts should be required to be brought into the proceedings or determined through the proceedings.

In the present case, all the facts are emanating clearly from the assessment order and no new facts have been produced by the assessee nor are being called for determination in the present proceedings. Consequently, the legal ground is liable to be admitted and we do so. A perusal of the provision of Section 142(1) clearly shows that the Assessing Officer can issue a notice u/s.142(1) calling upon the assessee to file his return of income only when the assessee has not filed his original return of income under the provision of Section 139(1). In the present case, the assessee has filed his original return on 01.10.2015 which is a return u/s.139(1) and the said return has also been processed u/s.143(1) on 02.06.2016. The notice u/s.142(1) issued on 29.06.2016 asking the assessee to file the return of income consequently is an invalid notice and is liable to be quashed and we do so.

In the result, the two appeals of the assessee in & 2872/Chny/2017 stand allowed.