Case Law Details
Sunil Bhalla Vs ACIT (ITAT Delhi)
It is pertinent to note that it is the emphatic statement made on behalf of the assessee that the assessee does not challenge the search conducted on him but what is being challenged is the assessment made under section 153A of the Act as not in accordance with law on the ground that no search under section 132(1) of the Act was initiated against the assessee. When the search is not under challenge, and when something incriminating is found in the lockers belonging to the assessee, we have a grave doubt in our mind as to whether it is open for the assessee to contend that he does not want to challenge the search but he wants to challenge the consequences of such search. The consequences are inevitable and mandatory when something incriminating in the shape of jewellery, which according to the Revenue remained unaccounted for, was found. Assessee and assessee alone is responsible for the consequences of search when something incriminating is found in the lockers which are admittedly belonging to him and the search against which he does not challenge. With this view of the matter, we do not find any substance in the argument advanced on behalf of the assessee that there is no proper search in this matter by initiating the proceedings under section 132(1) of the Act and, therefore, the initiation of proceedings under section 153A of the Act against the assessee is bad under law. Stretching the logic to the extent of leading to absurd inferences or attributing redundancy to the wisdom of legislature is not permissible. It is something different to argue that nothing incriminating was found during the search and, therefore, it is not open for the learned Assessing Officer to make any addition qua the assessee. We, therefore, reject the first contention of the assessee.
Now coming to the 2nd limb of argument advanced on behalf of the assessee, there is no dispute that by the date of search, the assessee had already filed the returns of income relating to the Assessment Years 2010-11, 2011-12 and 2012-13 by 30/7/2010, 11/7/2011, and 31/8/2012 respectively, and the due date for issuance of notice under section 143(2) of the Act was 30/9/2011, 30/9/2012 and 30/9/2013 respectively. Further, it is also not in dispute that no notice under section 143(2) of the Act was issued till date of search in respect of any of these years. It could, therefore, be seen from the record that for non-issuance of notice under section 143(2) of the Act by the respective due dates, the assessments for assessment years 2010-11 and 2011-12 stood concluded.
It is an admitted fact that except jewellery, no material much less incriminating material was found during the search that took place on 16/1/2013. It is, therefore, clear that after the search, Ld. AO sought to reopen the concluded assessment for the Assessment years 2010-11 and 2011-12. In view of the decision of the Hon’ble judicial High Court in the cases of Kabul Chawla (supra);MeetaGutgutia (supra); and Lata Jain (supra,) no assessment could be framed and section 153A of the Act in the absence of any incriminating material recovered during the search qua the assessee qua the assessment years. We are, therefore, of the considered opinion that the additions made for the Assessment Years 2010-11 and 2011-12 made in the absence of any incriminating material is bad under law and cannot be sustained. On this score the assessee succeeds in respect of Assessment Years 2010-11 and 2011-12.
Now coming to the assessment year 2012-13, the due date for issuance of notice under section 143(2) of the Act was 30/9/2013 and in view of the search that took place on 16/1/2013, it cannot be said that by such date the assessment for the assessment year 2012-13 was a concluded one. Since no notice under section 143(2) of the Act is required to be given in a case of search and section 153A of the Act, in view of the decision of the Hon’ble jurisdictional High Court in the case of Ashok Chadda vs. ITO (2011) 337 ITR 399, it is not open for the assessee now to contend that because notice under section 143(2) of the Act was issued on 12/12/2014, reopening is bad. In respect of the assessments which are not concluded by the date of search, it is open for the Ld. Assessing officer to proceed with the assessment without issuing any notice under section 143(2) of the Act. We, therefore, find that the assessment was rightly proceeded by the learned Assessing officer in respect of the Assessment year 2012-13.
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