Samanthapudi Lavanya Vs ACIT (ITAT Visakhapatnam)
Conclusion: Since no fresh information was collected by AO or no information had come to the notice of AO in normal course, other than the information collected during the course of search from searched person therefore, as provided under sections 153A and 153C, search assessments was required to be made under section 153A or section 153C, but not under section 147.
Held: The issue arose for consideration was whether AO was right making the assessments u/s 147 instead of invoking the jurisdiction u/s 153C. In the instant case, AO issued notice u/s 148 to reopen the assessment. Therefore, in view of the non-abstante clause begin with section 153A, AO had no jurisdiction to issue notice u/s 148 reopen the assessment of those six assessment year which fell within the exclusive jurisdiction of section 153A. There was no dispute that the joint receipt was seized during the course of search as mentioned by AO in the assessment order as well as the remand report and the assessment was made u/s 147 on the basis of statement recorded u/s 132(4), appraisal report and the joint receipt. All of them were directly related to the information found from the searched person consequent to the search u/s 132. Therefore, as provided u/s 153A and 153C, all the search assessments required to be made u/s 153A or 153C, but not u/s 147. No fresh information was collected by AO or no information had come to the notice of AO in normal course other than the information collected during the course of search from the searched person. Thus, assessee’s case was squarely covered by the decision of this Tribunal in G.Koteswara Rao. Department had not brought any other evidence to establish that the joint receipt was not seized during the search/s 132. Thus, the assumption of jurisdiction by AO u/s 147 was bad in law and the order of CIT(A) and the assessments framed u/s 147 r.w.s. 143(3) were quashed.
FULL TEXT OF THE ORDER OF ITAT VISAKHAPATNAM
These appeals are filed by the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-3, Visakhapatnam in common order dated 31.05.2018 for the Assessment Year (A.Ys.) 2009-10 to 20 11-12. Facts of the case are identical in all the appeals, hence all the appeals are clubbed, heard together and disposed off in a common order for the sake of convenience. The facts of the case are extracted from I.T.A. No.725/Viz/2019 and the same are applicable in all the appeals except the change in amounts.
1. Condonation of Delay: These appeals are filed by the assessees with the delay of 492 days and the assessees have filed the condonation petitions stating that the assessees have received the appeal orders from the Ld.CIT(A) on 31.05.2018 and the appeals ought to have been filed on or before 30.07.2018, but the appeals were filed on 31.12.2019 resulting in delay of 492 days. The assessees have filed the petition for condonation of delay along with the affidavits. In their petition for condonation the assessees have stated that the income tax related matters were looked after by Shri A.Murali Mohana Raju, Accountant and he has collected all the necessary papers for filing the appeal from the Advocate and got it signed by the assessees and fell sick for 10 days and later on forgot the issue completely and the assessees were under the bonafide impression that the appeals were filed. The assessees have realized the fact of non-filing of appeals, only when the department has pressed for payment of the demand. On realizing the mistake the assessees have taken immediate steps for filing the appeals and accordingly appeals were filed with the delay of 492 days and hence, requested to condone the delay. During the appeal hearing, ld.AR submitted that there was no malafide intention and it was the bonafide belief of the assessee that the appeals were filed by the Ld.Accountant. The Ld.A.R relied on the decision of the Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF) vs Assistant Commissioner of Income tax in civil appeal No.667 1 – 6676 of 2010, dated 7th November 2019, wherein Hon’ble Supreme Court had condoned the delay of 1754 days on similar conditions.
2. The Ld.DR vehemently objected for condoning the delay.
3. We have heard both the parties and find that the assessees have established their case that due to the mistake of the Ld. Accountant appeals could not be filed which caused the delay. The department has not placed any material to show that the submissions made by the assessees are wrong or malafide. The assessees are not going to get any benefit by delaying the appeal and it is not the case of deliberate attempt or the intention of the assessee to file the appeal belatedly. Hon’ble High Court of Telangana in the case of Thunuguntla Jagan Mohan Rao vs DCIT, Circle(2)1, Hyderabad, in ITTA No.20 of 2020 dated 13/08/2020 relied upon by the Ld.A.R condoned the delay of 154 days and held that while condoning the delay, the court should be liberal and show utmost consideration to the suitor if the explanation does not smack of malafide or it is not put forth as part of dilatory strategy. The Hon’ble Supreme Court on similar facts of having no knowledge of passing the order, in the case of Senior Bhosale Estate (HUF) (supra) condoned the delay of 1754 days. We extract the relevant part of the order of Hon’ble Apex court in Senior Bhosale Estate (HUF) [2019] 112 taxmann.com 134 (SC) which reads as under:
3. The appellant(s) had asserted that they had no knowledge about passing of order dated 29.12.2003, until they were confronted with the auction notices in June 2008 issued by the competent authority.
4. Soon thereafter, the appellant(s) filed appeal(s) accompanied by the subject application(s) on 19.07.2008. Notably, the respondent(s) did not expressly refute the stand taken by the appellant (s) – that they had no knowledge about passing of order dated 29.12.2003 until June, 2008. Unless that fact was to be refuted, the question of disbelieving the stand taken by the appellant(s) on affidavit, cannot arise and for which reason, the High Court should have shown indulgence to the appellant(s) by condoning the delay in filing the concerned appeal(s). This aspect has been glossed over by the High Court.
5. Accordingly, these appeals are allowed. We set aside the impugned order of the High Court and relegate the parties before the High Court, by allowing the civil application(s) filed by the appellant(s) for condonation of delay in filing the concerned appeal.
In the instant case the assessee was under the bonafide impression of having filed the appeal by the Ld.Accountant, but came to know the fact of not having filed the appeal when there was pressure from the department for payment of demand. Therefore, following the orders of the Hon’ble Supreme Court, the Hon’ble High Court of Telangana (supra) and the principles laid by Hon’ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC), we find it justifiable to condone the delay and admit the appeal of the assessee in the interest of justice. Accordingly the appeals are admitted.
4. The assesses are individuals and filed the Returns of income for the A.Ys 2009-10 to 2011-12 as under:
