M/S. AVICHAL BUILDCON PVT. LTD.,NEW DELHI vs. DCIT, NEW DELHI

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ITA 3036/DEL/2014Status: DisposedITAT Delhi31 January 2017AY 2007-083 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that Section 153A is applicable only when a search is initiated under Section 132 or requisition is made under Section 132A in the case of the assessee. Since the Revenue failed to provide evidence of such an action against the assessee, the proceedings under Section 153A and the consequential assessment orders were quashed.

What were the facts?

The assessee appealed against the CIT(A)'s order, arguing that proceedings under Section 153A were wrongly assumed as no search was conducted on their premises. The Assessing Officer had mentioned a search in a related group of cases, but not on the assessee.

What were the issues?

Whether proceedings under Section 153A are valid when no search or requisition has been conducted on the assessee's premises, even if a search occurred in a related group of companies.

Which sections of the Income-tax Act were involved?

Section 153A,Section 132,Section 132A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, IN THE INCOME TAX APPELLATE TRIBUNAL

Before: SHRI G.D. AGRAWALG.D. AGRAWAL & AND BEFORE SHRI G.D. AGRAWALG.D. AGRAWAL & AND SHRI KULDIP SINGH SHRI KULDIP SINGHSHRI KULDIP SINGH SHRI KULDIP SINGH

For Appellant: Shri R.S. Singhvi and Shri Satyajeet, Advocates
For Respondent: Shri Ravi Jain, CIT-DR
Hearing: 18.01.2017Pronounced: 31.01.2017

PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP :- PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP These appeals by the assessee for the assessment years 2007- 08, 2008-09, 2009-10 & 2010-11 are directed against the order of learned CIT(A)-XXXIII, New Delhi dated 23rd January, 2014.

2.

The first common ground raised by the assessee in all these appeals reads as under :-

1.

“That having regard to the facts and circumstances of the case, ld.CIT(A) has erred in law and on facts in assuming jurisdiction u/s 153A more so when there was no search u/s 132 of the Income Tax Act, 1961, on the appellant.”

3.

At the time of hearing before us, the learned counsel made a categorical statement that no search proceedings have taken place at the premises of the assessee. There was no search warrant in the case of the assessee, no panchnamas were drawn and, therefore,

2 ITA-3036 to 3039/D/2014 proceedings u/s 153A are void. He also referred to the assessment order and pointed out that the Assessing Officer has mentioned that search and seizure operation u/s 132 was carried out in M/s Dharampal Satyapal Group of cases. There is no mention by the Assessing Officer that the search operation was carried out in the case of the assessee. Learned CIT-DR wanted some time to verify this position. However, both the parties agreed that these appeals can be treated as heard and no order would be pronounced for a period of ten days. In the meanwhile, if the Revenue produces any evidence of search at assessee’s place, the cases would be refixed for hearing on merits.

4.

After the lapse of ten days, no evidence is produced by the Revenue for search at the assessee’s business premises. Therefore, we proceed with the presumption that no search has taken place vis-a- vis the present assessee is concerned. Section 153A reads as under :-

“153A. Assessment in case of search or requisition. 153A. Assessment in case of search or requisition. 153A. Assessment in case of search or requisition.- (1) 153A. Assessment in case of search or requisition. Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall—“

5.

Thus, Section 153A would be applicable in the case of the assessee where a search is initiated u/s 132 or books of account, other documents or any asset are requisitioned u/s 132A. The Revenue has not been able to point out that either the search has taken place at the premises of the assessee or books of account or document or any other asset are requisitioned u/s 132A in the case of the assessee. Merely because the search has taken place in the other group companies would not be a ground for taking action u/s 153A in the case of the assessee. For the purpose of taking recourse to Section 153A, search u/s 132 or requisition of document/asset u/s 132A in the case of the assessee is an essential condition. Since the same is not 3 ITA-3036 to 3039/D/2014 fulfilled, we quash the initiation of proceedings u/s 153A and consequentially, the resultant assessment orders are also quashed.

6.

Before we part with this matter, we may mention that even if later on the Revenue is able to find that search had actually taken place at the assessee’s premises, they would be at liberty to file the application for recalling the order in accordance with law by producing necessary evidence of search having taken place at the premises of the assessee. With these observations, the appeals of the assessee are allowed as above.

7.

In the result, all the appeals of the assessee are allowed as above. Decision pronounced in the open Court on 31.01.2017.

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