Section 143(3) cannot be used to pass an assessment order
Facts and Issue of the case
The facts of the case are that a search and seizure operation was carried out by the Revenue Department on dated 15.10.2013 in the case of Tyagi Group of cases, on the basis of which the alleged satisfaction was recorded in the case of Assessee on dated 12.08.2015 for initiation of proceedings u/s. 153C of the Act. Ultimately the assessment order u/s. 143(3) of the Act was made by the Assessing Officer. The Assessee, being aggrieved, challenged the assessment order before the ld. Commissioner, who vide impugned order sustained the assessment order, while dismissing the appeal of the Assessee, against which the Assessee is in appeal before us.
Observation by the court
The court had heard the parties and perused the material available on record. It appears from the assessment order that a search and seizure operation u/s. 132 of the Act was conducted by the Revenue Department on 15.10.2013 in the premises of Tyagi Group of cases and on the basis of search, the alleged satisfaction was recorded in the case of Assessee on dated 12.08.2015 for initiation of proceedings u/s. 153C of the Act, therefore,notices u/s. 142(1) and 143(2) of the Act were issued against which the Assessee has claimed to have filed return of income on 22.03.2015 wherein the Assessee had declared total income of Rs.3,62,230/- and ultimately, the Assessing Officer has passed the assessment order u/s. 143(3) of the Act but not u/s. 153C of the Act. Therefore, the claim of the Assessee is that the Assessing Officer was under obligation to frame the assessment as per provisions of section 153C of the Act, but not u/s. 143(3) of the Act because the provisions of section 153 of the Act of the Act mandates that the Assessing Officer is required to make an order of assessment or reassessment in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year, in which such search is conducted or requisition made or satisfaction note is prepared which allegedly in the case of Assessee on dated 12.08.2015 for initiation of proceedings u/s. 153C of the Act, being the date of receiving the books of account or documents or asset seized, therefore the instant case as pertains to AY 2014-15 also falls within 6 years.
The Ld. DR at the outset contented that the Assessee did not raise this issue specifically in it grounds of appeal whereas the Assessee claimed that ground no 2 covers this issue squarely. We have considered the said factual position and find that the Assessee vide ground no. 2 specifically challengedthe jurisdiction of the AO and its confirmation by the Ld. Commissioner and therefore the said contention of the ld. DR is untenable.Coming to the issue qua passing the assessment order u/s 143(3) instead of section 153-C of the Act, considering the peculiar facts and circumstances, as the assessment year under consideration falls under six assessment years for the purpose of section 153C, therefore, the assessment order should have been passed as per provisions of section 153C and but not u/s. 143(3) of the Act. Consequently, the assessment order, being void ab initio, is liable to be quashed. Thus, the same stands quashed and impugned order is set aside.
The appeal filed by the Assessee is allowed by the court.Ankit-Gupta-Vs-DCIT-ITAT-Delhi