M/s. Gambhir Silk Mills, Surat V. The ACIT., Cent.Circle-1, Surat

CO 257/AHD/2007

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4413 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 28-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Document seized; Retrospective amendment; Validity of assessment; Block assessment; Reason to believe; Documents seized
• Section: 143(3); 80HHC; 153A; 234B; 147; 263; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B (CAMP AT SURAT ) BEFORE SHRI DEEPAK R. SHAH, ACCOUNTANAT MEMBER AN D SHRI D.T. GARASIA, JUDICIAL MEMBER DATE OF HEARING : 08/01/2010 DRAFTED ON: 02/02 /2010 APPEALS/COS BY SL.NOS ITA NOS/ CO NOS. ASST.YEAR APPELLANT/ APPLICANT RESPONDENT 1. 2684/AHD/2007 1999- 2000 ASST. CIT CENTRAL CIRCLE-I SURAT M/S.GAMBHIR SILK MILLS 3012-3017, ASHOKA TOWER RING ROAD, SURAT PAN : AACFG 2279E 2. CO.254/AHD/07 ( O/O ITA 2684/AHD/07 ) -DO- ASSESSEE REVENUE 3. 2685/AHD/2007 2000-01 REVENUE ASSESSEE 4. CO.255/AHD/07 ( O/O ITA 2685/AHD/07 ) -DO- ASSESSEE REVENUE 5. 2686/AHD/2007 2001-02 REVENUE ASSESSEE 6. CO.256/AHD/07 ( O/O ITA 2686/AHD/07 ) -DO- ASSESSEE REVENUE 7. 2687/AHD/2007 2002-03 REVENUE ASSESSEE 8. CO.257/AHD/07 ( O/O ITA 2687/AHD/07 ) -DO- ASSESSEE REVENUE 9. 2688/AHD/2007 2003-04 REVENUE ASSESSEE 10. CO.258/AHD/07 ( O/O ITA 2688/AHD/07 ) -DO- ASSESSEE REVENUE ASSESSEE(S) BY : SHRI RAJESH KUMAR SHAH REVENUE BY: SHRI SIDDHARTH MUKHERJEE, CIT-D.R. O R D E R PER SHRI DEEPAK R.SHAH, AM: ALL THESE APPEALS BY THE REVENUE AND CROSS OBJECTI ONS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF THE LD. CIT(APPEALS)-II, ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 2 AHMEDABAD DATED 29/03/2007 IN APPEALS AGAINST ASSE SSMENT FRAMED U/S.143(3) R.W.S. 153-C OF THE I.T. ACT. IN THE C ROSS OBJECTIONS, THE ASSESSEE HAS RAISED A LEGAL PLEA AS TO THE VALIDITY OF ASSESSMENT FRAMED U/S.153-C OF THE I.T. ACT, 1961. 2. WHEN SIMILAR PLEA WAS RAISED BEFORE THE LEARNED CIT(APPEALS) AND VARIOUS DECISIONS WERE CITED, THE LEARNED CIT(APPEA LS) HELD THAT THERE IS VAST CHANGE IN PROVISION RELATING TO FRAMING ASSES SMENT UNDER SECTIONS 153C AND 158BD OF THE I.T. ACT, 1961. HE HELD TH AT THERE WAS A SEARCH AT THE GROUP PREMISES AS NOTED BY THE ASSESSING OFF ICER AND, HENCE, PROCEEDINGS U/S.153C OF THE I.T. ACT, 1961 WERE JU STIFIABLY INITIATED AND THE CASE LAWS RELIED UPON ARE NOT APPLICABLE TO TH ESE CASES. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SEARCH WARRANT WAS ISSUED IN THE NAME OF SHRI SUBHASH GAMBHIR SURAT. ONLY A SURVEY WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE. NEITHE R DURING THE SEARCH AT THE PREMISES OF SHRI SUBHASH GAMBHIR NOR DURING THE COURSE OF SURVEY AT THE PREMISES OF THE ASSESSEE ANY VALUABLE ARTICLES OR BOOKS OF ACCOUNT OR DOCUMENT REVEALING UNDISCLOSED INCOME WERE EITHER F OUND OR SEIZED. NO VALUABLE ARTICLES OR THING OR ANY BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 3 REQUISITION BELONGS TO THE PRESENT ASSESSEE AND, HE NCE, MERELY BECAUSE THERE WAS A SEARCH IN THE GROUP CASES ACTION U/S.15 3-C CANNOT BE INVOKED SO AS TO FRAME ASSESSMENT U/S.153-A OF THE I.T. ACT , 1961. HE FURTHER SUBMITTED THAT FOR INVOKING THE PROVISION OF SECTION 153C, IT IS A CONDITION PRECEDENT THAT THE ASSESSING OFFICER MUST HAVE SATI SFACTION THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR TH ING OR BOOKS OF ACCOUNT SEIZED OR REQUISITIONED BELONGS TO SOME PERSON OTHE R THAN ONE WITH RESPECT TO WHOM SEARCH HAS BEEN INITIATED UNDER SECTION 132 . HOWEVER, SUCH SATISFACTION IS ONLY A PRIMA FACIE SATISFACTION THAT IN THE SEARCH OPERATION SOME MATERIAL HAS BEEN FOUND WHICH SHOWS THAT ANY S EIZED OR ACQUISITIONED ASSET OR BOOK OF ACCOUNTS IS RELATED TO THIRD PERSON. BEFORE ISSUING NOTICE OR BEFORE STARTING PROCEEDINGS UNDER SECTION 153A, THERE MAY NOT BE ANY FIRM OR CONCLUSIVE SATISFACTION. SUC H SATISFACTION SHOULD HOWEVER BEEN BASED ON MATERIALS GATHERED DURING COU RSE OF SEARCH OR REQUISITION. FURTHER, SUCH SATISFACTION SHOULD BE A N OBJECTIVE SATISFACTION RATHER THAN MERELY A SUBJECTIVE SATISFACTION. THUS THE POWER OF THE ASSESSING OFFICER UNDER SECTION 153C CANNOT BE INVO KED IN A LIGHT AND ARBITRARY MANNER AND WITHOUT COMPLYING WITH BASIC P RE-REQUISITES SPECIFIED IN SECTION 153C . THE OBJECT UNDERLYING THE PROVISIONS OF SECTION ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 4 153C IS NOT TO GIVE UNBRIDLED POWER TO THE ASSESSIN G OFFICER TO PROCEED AGAINST ANY PERSON WITHOUT REACHING SATISFACTION IN AN OBJECTIVE MANNER BASED ON THE COGENT MATERIAL/DOCUMENT SEIZED AT THE TIME OF SEARCH. THE SATISFACTION OF THE ASSESSING OFFICER IS NOT A MERE FORMALITY BUT IT SHOULD BE POSITIVE SATISFACTION THAT THE SEIZED MATERIAL PERT AINS TO THE OTHER PERSON AND REVEALS UNDISCLOSED INCOME OF THAT OTHER PERSON . THE PROVISION OF SECTION 153C SHOWS THAT THE SEARCH PROVISIONS CAN B E INVOKED ONLY IF THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO SOME PERSON OTHER THAN THE ONE WITH RESPECT TO WHOM SEAR CH WAS MADE UNDER SECTION 132, SUCH SATISFACTION MUST BE ARRIVED AT B Y THE ASSESSING OFFICER BEFORE INVOKING THE PROVISIONS OF SECTION 153C ON T HE BASIS OF MATERIAL FOUND IN THE COURSE OF SEARCH OF OTHER PERSON AND A NY MATERIAL COMING INTO THE COURSE OF SEARCH OF OTHER PERSON AND ANY MATERI AL COMING INTO THE POSSESSION OF THE ASSESSING OFFICER AFTER INVOKING THE SECTION 153C CANNOT BE CONSIDERED FOR EXERCISING SUCH JURISDICTION. IN THE ABSENCE OF SUCH SATISFACTION, THE ASSESSMENT MADE ON ANY OTHER PERS ON WOULD, BE ILLEGAL AND VOID AB INITIO SINCE JURISDICTION TO ASSESS OTHER PERSON CAN BE E XERCISED VALIDLY ONLY IN ACCORDANCE WITH PROVISION OF SECTIO N 153C OF THE I.T. ACT, 1961. ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 5 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE FINDING OF THE LEARNED CIT(APPEALS). HE ALSO FILED BEFORE US A COPY OF NOTICE ISSUED U/S.153-C OF THE I.T. ACT, 19 61 FOR INITIATING ACTION U/S.153-A OF THE I.T. ACT, 1961. A QUERY HAS RAIS ED FROM THE BENCH AS TO WHETHER ANY MONEY, BULLION, JEWELLERY OR ANY OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR RE QUISITION BELONGED TO THE PRESENT ASSESSEE WHICH HAS BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THE PRESENT ASSESSEE. TH E LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT FROM THE ASSESSMENT O RDER IT CANNOT BE SAID THAT ANY SUCH MATERIAL BELONGING TO THE ASSESSEE WA S EITHER SEIZED OR HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDI CTION OVER THE ASSESSEE. 5. WE HAVE CAREFULLY CONSIDERED THE RELEVANT FACTS AND ARGUMENTS ADVANCED. 6. ALMOST IDENTICAL ISSUE AROSE BEFORE THE ITAT AHM EDABAD BENCH A IN ITA NOS.2938 TO 2942/AHD/2008 DATED 16/01/20 09 IN THE CASE OF ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 6 MEGHMANI ORGANICS LTD. VS. DCIT TO WHICH ONE OF US (ACCOUNTANT MEMBER) WAS A PARTY. THE TRIBUNAL IN THE SAID CASE HELD AS UNDER:- 9. WE HAVE CAREFULLY CONSIDERED THE RELEVANT FACTS , ARGUMENTS ADVANCES AND THE DECISIONS CITED. PROVISIONS OF SECTION 153A, 153B A ND 153C WERE INSERTED BY THE FINANCE ACT 2003 WITH EFFECT FROM 1-6-2003. ORIGINA LLY SECTION 153A OF THE ACT DO NOT HAVE ANY SUB-SECTION. HOWEVER, SUB-SECTION (2) TO S ECTION 153A WAS INSERTED BY FINANCE ACT 2008 WITH RETROSPECTIVE EFFECT FROM 01- 06-2003. SECTION 153A PROVIDES FOR ASSESSMENT IN CASE OF A PERSON IN WHOSE CASE A SEAR CH IS INITIATED U/S 132 OF THE ACT OR DOCUMENTS OR ASSETS ARE REQUISITIONED U/S 132A OF T HE ACT AFTER 31-5-2003. SECTION 153B PROVIDES FOR TIME LIMIT FOR COMPLETION OF ASSE SSMENT U/S 153A AND 153C OF THE ACT. SECTION 153C PROVIDES FOR ASSESSMENT OF INCOME OF PERSON OTHER THAN A PERSON IN RESPECT OF WHOM WARRANT OF AUTHORISATION IS ISSUED U/S 132 OF THE ACT. SECTION 153A AND 153C ARE EXTRACTED HEREIN SECTION 153A [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 13 2 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM A ND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH PARTICULAR S AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN R EQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS; PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING T O ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX YE ARS REFERRED TO IN THIS (SUB SECTION) PENDING ON THE DATE OF INITIATION OF THE S EARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CA SE MAY BE, SHALL ABATE. ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 7 [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OR AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APP EAL OR ANY OTHER LEGAL PROCEEDINGS, THEN, NOTWITHSTANDING ANYTHING CONTAIN ED IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATIN G TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SE CTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER. PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF SUCH O RDER OF ANNULMENT IS SET ASIDE.] EXPLANATION. - FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RES PECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SH ALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE T O SUCH ASSESSMENT YEAR. SECTION 153C [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWEL LERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED T O IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDI CTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EA CH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSE SS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTIO N 153A:] PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON.] [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN REC EIVED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 8 YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMEN T YEAR - (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH O THER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECT ION (2) OF SECTION 143 HAS BEEN EXPIRED , OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MA DE, BEFORE THE DATE RECEIVING THE BOOKS OF ACCOUNT OR D OCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTI CE AND ASSESS OR REASSESS TOTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMEN T YEAR IN THE MANNER PROVIDED IN SECTION 153A.] 10. THE ASSESSING OFFICER ASSUMES JURISDICTION FOR FRAMING ASSESSMENT U/S 153C OF THE ACT WHERE THE ASSESSING OFFICER IS SATISFIED TH AT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF ACCOU NT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS TO OR BELONG TO A PERSON OTHE R THAN THE PERSON IN WHOSE CASE SEARCH IS CONDUCTED U/S 132(1) OF THE ACT. THEREFOR E, FOR INITIATING ACTION U/S 153C OF THE ACT FOR FRAMING ASSESSMENT U/S 153A, THE PRE-RE QUISITE IS THAT THE SATISFACTION OF THE ASSESSING OFFICER THAT THE MONEY ETC. AND DOCUMENTS ETC. BELONGS TO A PERSON OTHER THAN THE PERSON SEARCHED U/S 132 OF THE ACT. THE AS SESSING OFFICER IN THE ASSESSMENT ORDER HAS CATEGORICALLY HELD THAT PAGES 87 TO 91 OF ANNEXURE A 4 SEIZED FROM LALIT K PATEL ARE HIS OWN HAND WRITTEN ESTIMATE FOR THE PRO POSED WORK OF THE ASSESSEE. THEREFORE, THOUGH THESE DOCUMENTS MAY REFER TO FOR THE WORK PROPOSED ON BEHALF OF THE ASSESSEE, THE SAME CANNOT BE CONSIDERED AS DOCUMEN TS BELONGING TO THE ASSESSEE. IF A PERSON MAKES SOME JOTTINGS/NOTES ETC. FOR HIS OWN PURPOSE AND WHICH HAS NOT NEXUS TO HOLD THAT IT BELONGS TO OTHER PERSON AND ALSO DO ES NOT CONTAIN A MATERIAL WHICH REVEALS ANY INCOME THEREIN, CANNOT BE USED SO AS TO INITIATE ACTION U/S 153 C OF THE ACT. SIMILARLY, PAGES 84 TO 86 OF ANNEXURE A 4 SEIZED FR OM THE RESIDENCE OF LALIT K PATEL ARE RECORD MAINTAINED BY LALIT K PATEL FOR HIS OWN PURPOSE. THE SAID DOCUMENTS DO NOT BELONG TO THE ASSESSEE THOUGH IT MAY REFER TO T HE WORK CARRIED ON BEHALF OF THE ASSESSEE. IF THE ASSESSEE HAS ENGAGED THE SERVICES OF A PROFESSIONAL AND IF THE PROFESSIONAL MAINTAINS HIS OWN RECORD FOR THE PURPO SE OF RENDERING HIS SERVICES, THE DOCUMENTS CANNOT BE SAID TO BE BELONGING TO SUCH OT HER PERSON. SHRI LALIT K PATEL WAS ENGAGED BY THE ASSESSEE AND HE WAS EXPECTED TO VERI FY THE BILLS RAISED BY INDEPENDENT CONTRACTORS SO AS TO CERTIFY THAT THE BILLS RAISED ARE IN ACCORDANCE WITH THE TERMS OF CONTRACT AND ALSO CONTAIN DEDUCTIONS FOR MATERIALS SUPPLIED BY THE ASSESSEE. THIS BEING THE DOCUMENTS MAINTAINED BY LALIT K PATEL FOR HIS P ERSONAL PURPOSE, THOUGH MAY BE REFERRABLE TO THE ASSESSEE, CANNOT BE CONSIDERED AS BELONGING TO THE ASSESSEE. IT IS ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 9 ALSO ADMITTED BY THE ASSESSING OFFICER THAT THE SEI ZED DOCUMENTS DO NOT REVEAL ANY SPECIFIC UNDISCLOSED INCOME. IT IS ALSO ADMITTED FA CT THAT NONE OF THE ASSESSMENTS IN THE PRESENT APPEALS WERE PENDING ON THE DATE OF INITIAT ION OF ACTION U/S 153C OF THE ACT I.E. ON 14-04-2006. THOUGH THE APPEALS BEFORE THE COMMIS SIONER (APPEALS) OR TRIBUNAL WERE PENDING, THE SAME DO NOT COME WITHIN THE PARAM ETERS OF SECOND PROVISO TO SECTION 153C AS THOSE ASSESSMENTS SHALL NOT ABATE. ONLY THE ASSESSMENT OR REASSESSMENTS WHICH ARE PENDING BEFORE THE ASSESSIN G OFFICER ON THE DATE OF INITIATION OF SEARCH SHALL ABATE. THE C. B. D. T. IN ITS CIRCU LAR NO.7/2003 IN PARA 65.5 CLARIFY AS UNDER: 65.5 THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSESSMENT OR REASSESSM ENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. IT I S CLARIFIED THAT THE APPEAL, REVISION OR RECTIFICATION PROCEEDINGS PENDING ON TH E DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION SHALL NOT ABATE . SAVE AS OTHERWISE PROVIDED IN THE PROPOSED SECTION 153A, SECTION 153B AND 153C, A LL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT OR REASSESSMENT M ADE UNDER SECTION 153A SHALL BE SUBJECT TO INTEREST, PENALTY AND PROSECUTI ON, IF APPLICABLE. IN THE ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN AS SESSMENT YEAR UNDER THIS SECTION, THIS TAX SHALL BE CHARGEABLE AT THE RATE O R RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. (EMPHASIS SUPPLIED) 11. THE ASSESSEE HAS FILED A CHART FOR ALL THE YEAR S. IT DEMONSTRATES THAT THE ORIGINAL ASSESSMENTS WERE COMPLETED PRIOR TO INITIATION OF A CTION U/S 153C OF THE ACT. THE FOLLOWING TABLE WILL REVEAL THE SAID FACT: ASSESSMENT YEAR ORIGINAL ORDER PASSED ON 2001-02 04-03-2003 2002-03 09-06-2003 2003-04 29-03-2003 2004-05 30-11-2005 2004-05 17-11-2004 IN THE PRESENT ASSESSMENT ORDERS NO ADDITION HAS BE EN MADE ON ACCOUNT OF DOCUMENTS STATED TO BE PERTAINING TO THE ASSESSEE. HOWEVER, D EDUCTION CLAIMED U/S 80 HHC AND 80IA OF THE ACT HAVE BEEN RECALCULATED. FROM THE T ABLE FILED IN ALL THE YEARS, WE FIND THAT THE DEDUCTIONS U/S 80HHC OF THE ACT WAS REDUCE D ON THE FOLLOWING GROUNDS: (I) INCLUSION OF EXCISE DUTY AND SALES TAX ETC. IN TOTA L TURNOVER (II) IGNORING LOSS FROM EXPORT TRADE WHILE COMPUTING DED UCTION U/S 80 HHC ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 10 (III) ELIGIBILITY OF DEDUCTION U/S 80 HHC OF THE ACT QUA THE ASSESSEE AND NOT UNIT WISE (IV) DEDUCTION U/S 80 HHC IN ACCORDANCE WITH PROVISIONS OF SECTION 80 IA (9) OF THE ACT AND (V) AS REGARDS DEDUCTION U/S 80 IA OF THE ACT, THE SAME WAS REDUCED BY EXCLUDING DUTY DRAW BACK, PREMIUM ON SALE OF LICENS E ETC. IN ELIGIBLE PROFITS ALL THESE ISSUES WERE SUBJECT MATTER OF EARLIER PRO CEEDINGS IN ORIGINAL ASSESSMENT AND WERE IN FURTHER LITIGATION BEFORE THE CIT(A) AND TR IBUNAL. THOUGH ALL THESE ASSESSMENTS HAVE BEEN DECIDED IN FURTHER APPEAL AND SETTLED BY CIT(A) OR TRIBUNAL, THE SAME ARE SUBJECT MATTER OF THE LITIGATION. IN OUR OPINION TH E ASSESSING OFFICER COULD NOT HAVE DONE SO SINCE ALL THESE ASSESSMENTS HAVE NOT BEEN A BATED. AS PER SECOND PROVISO TO SECTION 153C OF THE ACT ONLY THOSE ASSESSMENTS OR R EASSESSMENTS FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN SUB S ECTION (1) OF SECTION 153A OF THE ACT AND PENDING ON THE DATE OF INITIATION OF SEARCH SHA LL ABATE. SINCE, THE ORIGINAL ASSESSMENTS WERE NOT PENDING THE SAME HAVE NOT BEEN ABATED. THE ASSESSING OFFICER WAS NOT COMPETENT TO ASSUME JURISDICTION U/S 153 C OF THE ACT AS (I) NONE OF THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH OF OTHE R PERSON BELONG TO THE ASSESSEE, (II) THE ORIGINAL ASSESSMENTS HAVE NOT ABATED. WHAT WERE PENDING WERE ONLY THE APPEALS. HOWEVER, SINCE THE APPEALS DO NOT ABATE TH E ORIGINAL ASSESSMENTS SURVIVE AND HENCE CANNOT BE REOPENED U/S 153C PROCEEDINGS. WE, THEREFORE, SET ASIDE ALL THE ASSESSMENTS MADE U/S 153C OF THE ACT. 12. THE PROCEDURE OF ASSESSMENT CONTAINED IN CHAPTE R XIV VISUALISES VARIOUS TYPES OF ASSESSMENTS. SECTION 143(1) PROVIDES FOR ASSESSM ENT ON THE BASIS OF RETURN FILED BY THE ASSESSEE. SECTION 143(3) VISUALISES ASSESSMENT ON THE BASIS RETURN FILED AS SCRUTINISED AND EXAMINED BY THE ASSESSING OFFICER. SECTION 144 VISUALISES BEST JUDGMENT ASSESSMENTS. SECTION 147 PROVIDES FOR REAS SESSMENT WHERE THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARG EABLE TO TAX HAS ESCAPED ASSESSMENT. SECTION 153 A OF THE ACT IS TITLED AS ASSESSMENT IN CASE OF SEARCH OR REQUISITION, WHERE WARRANT OF AUTHORISATION IS ISS UED IN CASE OF SUCH PERSON. SECTION 263 OF THE ACT EMPOWERS THE COMMISSIONER TO REVISE ANY ORDER WHICH IS FOUND TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. THUS, ALL THE DIFFERENT TYPES OF ASSESSMENT ENVISAGE DIFFERENT SI TUATION. 13. THE HON'BLE SUPREME COURT IN THE CASE OF PARSHU RAM POTTERY WORKS CO. LTD. VS ITO, CIRCLE-1, WARD A, RAJKOT 106 ITR 1 (S C) OB SERVED AS UNDER: IT HAS BEEN SAID THAT THE TAXES ARE THE PRICE THAT WE PAY FOR CIVILIZATION. IF SO, IT IS ESSENTIAL THAT THOSE WHO ARE ENTRUSTED WITH T HE TASK OF CALCULATING AND REALISING THAT PRICE SHOULD FAMILARISE THEMSELVES W ITH THE RELEVANT PROVISIONS AND BECOME WELL-VERSED WITH THE LAW ON THE SUBJECT. ANY REMISSNESS ON THEIR PART CAN ONLY BE AT THE COST OF THE NATIONAL EXCHEQ UER AND MUST NECESSARILY RESULT IN LOSS OF REVENUE. AT THE SAME TIME, WE HAV E TO BEAR IN MIND THAT THE ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 11 POLICY OF LAW IS THAT THERE MUST BE A POINT OF FINA LITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI-JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY. 14. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS SUN ENGINEERING WORKS PVT. LTD. 198 ITR 297(S C) HELD THAT THE SCOPE OF REASSE SSMENT IS ONLY WITH REGARD TO THE INCOME ESCAPING ASSESSMENT. THE MATTERS WHICH HAVE ATTAINED FINALITY IN ORIGINAL ASSESSMENT CANNOT BE RE-AGITATED IN REASSESSMENT PR OCEEDINGS. IF THE ASSESSEE IS PRECLUDED FROM RE-AGITATING THE ISSUE IN REASSESSME NT PROCEEDINGS, IN THE SIMILAR FASHION THE ASSESSING OFFICER IS ALSO PRECLUDED FRO M RE-AGITATING THE ISSUE WHICH HAS ATTAINED FINALITY IN ORIGINAL ASSESSMENT PROCEEDING S. THE ORIGINAL ASSESSMENT PROCEEDINGS ARE SUBJECT TO FURTHER APPEALS. THEREFO RE, AS PER SECTION 153A, THE SAME HAS NOT BEEN ABATED. THE ASSESSING OFFICER IS ALSO, THEREFORE, PRECLUDED FROM RE- AGITATING THE ASSESSMENTS THAT HAVE ATTAINED FINALI TY IN ORIGINAL ASSESSMENT PROCEEDINGS, THOUGH PENDING IN FURTHER APPEALS. SO FAR AS THE ASSESSING OFFICER IS CONCERNED, HIS JURISDICTION IS OUSTED AND IS A FUN CTUS OFFICIO SO FAR AS THE ORIGINAL ASSESSMENTS ARE CONCERNED. THEREFORE, RE-AGITATING THE CONCLUDED ISSUES IN 153C PROCEEDINGS WITHOUT ANY DOCUMENTS RELATING THERE TO BELONGING TO THE ASSESSEE CANNOT BE CONSIDERED IN SUCH ASSESSMENT U/S 153 C OF THE A CT. 15. SECTIONS 153A TO 153C OF THE ACT ARE SUBSTITUTE D IN PLACE OF ERSTWHILE CHAPTER XIVB PROVIDING PROCEDURE IN COMPUTATION OF UNDISCLO SED INCOME IN CASE OF SEARCH U/S 132 OF THE ACT. 16. THE HON'BLE FINANCE MINISTER IN HIS BUDGET SPEE CH WHILE INTRODUCING SECTIONS 153A TO 153C OF THE ACT OBSERVED THAT THE EXISTING PROVISIONS OF CHAPTER XIV B WHICH PROVIDE FOR SINGLE ASSESSMENT OF UNDISCLOSED INCOME FOR BLOCK PERIOD WERE INTRODUCED FOR AVOIDANCE OF DISPUTES, EARLY FINALISATION OF SU CH ASSESSMENTS AND REDUCTION IN MULTIPLICITY OF PROCEEDINGS. HOWEVER, SINCE THERE W ERE PARALLEL PROCEEDINGS NAMELY REGULAR ASSESSMENT PROCEEDINGS AS WELL AS ASSESSMEN T OF BLOCK ASSESSMENTS FOR UNDISCLOSED INCOME HAD AMOUNTED TO MULTIPLICITY OF PROCEEDINGS. IN ORDER TO AVOID MULTIPLICITY OF PROCEEDINGS AND HAVE ONLY SINGLE AS SESSMENT AND IN RESPECT OF PENDING ASSESSMENTS, SECTION 153 A TO SECTION 153C OF THE A CT WERE PROPOSED TO BE INTRODUCED. IF THAT BE THE INTENTION, IN ASSESSMENTS U/S 153C T HE ISSUE CAN BE CONSIDERED ONLY IF THE PENDING ASSESSMENT IS ABATED AND NOT OTHERWISE. IF THE ORIGINAL ASSESSMENTS ARE COMPLETED WHICH ARE SUBJECT MATTER OF FURTHER LITIG ATION AND IF THOSE VERY ASSESSMENTS ARE RE-AGITATED U/S 153C PROCEEDINGS THE SAME WILL NOT ONLY MULTIPLY ASSESSMENT PROCEEDINGS BUT WILL MULTIPLY EVEN THE APPELLATE PR OCEEDINGS. THIS CAN NEVER BE THE INTENTION OF THE LEGISLATURE. 17. THE DECISION OF THE ITAT CALCUTTA BENCH IN THE CASE OF LMJ INTERNATIONAL LTD. (SUPRA) RELIED BY THE LEARNED COUNSEL FOR THE ASSES SEE SQUARELY APPLIES. IN THE SAID ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 12 CASE THE ASSESSMENTS WERE SOUGHT TO BE MADE U/S 153 A READ WITH SECTION 153C OF THE ACT. THE TRIBUNAL IN THIS CASE HELD AS UNDER: A READING OF S. 153A REVEALS APPARENT CONTRADICTIO N IN THE FIRST PROVISO AND THE SECOND PROVISO. THE PROVISO PROVIDES THAT THE ASSESSMENT OR REASSESSMENT SHALL BE DONE BY THE A O IN RESPECT OF EACH ASSESSM ENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH. THE SECOND PROVISO, ON THE OTHER HAND, PROVIDES THAT THE ASSESSMENT/REASSESSME NT PENDING ON THE DATE OF SEARCH SHALL ABATE. IN OTHER WORDS, THE ASSESSMENTS WHICH ARE NOT PENDING, SHALL HOLD THE FIELD. THE LANGUAGE OF S. 153A IS NO T UNAMBIGUOUS AND IS NOT SUSCEPTIBLE TO ONLY ONE MEANING. IN THE CIRCUMSTANC ES, THE PRINCIPLE OF LITERAL CONSTRUCTION IS OF NO HELP. IN THE CIRCUMSTANCES, T HE PRINCIPLE OF LITERAL CONSTRUCTION IS OF NO HELP. ONE OF THE SALUTARY RUL E IS RULE OF HARMONIOUS CONSTRUCTION. ACCORDING TO THIS RULE, A STATUE MUST BE READ AS A WHOLE AND ONE PROVISION OF THE ACT SHOULD BE CONSTRUED WITH REFER ENCE TO OTHER PROVISIONS IN THE SAME ACT SO AS TO MAKE A CONSISTENT ENACTMENT. THE MEANING OF ASSESSMENT/REASSESSMENT DOES NOT ALWAYS MEAN TAKING RECOURSE TO THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR COMPUTING THE TA X LIABILITY. IT IS POSSIBLE TO EFFECT RECONCILIATION OF THE TWO PROVISOS APPENDED TO S. 153A BY RESTRICTING THE MEANING OF THE TERM ASSESS OR REASSESS APPEARING IN THE FIRST PROVISO. AFTER THE SEARCH, THE TOTAL INCOME OF THE ASSESSEE IS TO BE RECOMPUTED ON THE BASIS OF THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND THE SAME IS TO BE ADDED WITH THE REGULAR INCOME ASSESSED UNDER S. 143(3) OR COMPUTED UNDER S. 143(1) FOR EACH OF THE SIX PRECEDING ASSESSMENT YEARS. WHE RE ANY PREPAID TAXES ARE THERE, THE SAME ARE REQUIRED TO BE GIVEN CREDIT FOR COMPUTING THE FURTHER TAX PAYABLE BY THE ASSESSEE. THE ASSESSEE IS ALSO REQUI RED TO PAY INTEREST UNDER SS. 234A AND 234B ON THE TAX DUE ON THE BASIS OF NEW CA LCULATION. WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELA TING TO ANY ASSESSMENT YEARS, THE ASSESSMENTS FOR SUCH YEARS CANNOT BE DISTURBED. THE CONSTRUCTION THAT THE DEPARTMENT SEEKS TO PLACE ON THE IMPUGNED PROVISION S WOULD LEAD TO SERIOUS HARDSHIP, INCONVENIENCE, INJUSTICE, ABSURDITY AND A NOMALY. SUPPOSE IN THE COURSE OF A SEARCH, NOTHING INCRIMINATING WAS FOUND . DOES THIS MEAN THAT AN HONEST CITIZEN BE UNDULY HARASSED BY FACING AUTOMAT IC REOPENING OF THE CONCLUDED ASSESSMENTS MERELY BECAUSE THERE WAS SEAR CH ACTION AGAINST HIM? THE ABSURDITY OF THE CONSTRUCTION GETS ALL THE MORE PRONOUNCED WHEN SAY, NO INCRIMINATING MATERIAL IS FOUND RELATING TO THE OT HER PERSON BUT THE MATERIAL FOUND INDICATES DISCLOSED INCOME. SUPPOSE, LOAN CON FIRMATIONS RELATING TO LOANS DULY DISCLOSED IN THE RETURN OF INCOME OF A ARE FOU ND AT THE TIME OF SEARCH IN THE PREMISES OF B. SHOULD THE ASSESSMENTS OF A BE REOPE NED FOR ALL THE SIX PRECEDING YEARS MERELY8BECAUSE SEARCH ACTION HAS BE EN INITIATED AGAINST B? IN SELECTING OUT OF DIFFERENT INTERPRETATIONS, THE COU RTS SHALL ADOPT THAT WHICH IS JUST, REASONABLE AND SENSIBLE RATHER THAN THAT WHIC H IS NONE OF THOSE THINGS. ONE MAY ALSO REFER TO CBDT CIRCULAR NO.7 OF 2003, D T. 15 TH SEPT., 2003. A READING OF THE CIRCULAR CLEARLY INDICATES THAT THE APPEAL, REVISION ETC. ARISING ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 13 OUT OF EARLIER ASSESSMENTS SHALL NOT ABATE. IN OTHE R WORDS, THERE IS NO MERGER OF THE EARLIER ASSESSMENTS WITH THE ASSESSMENTS DONE U NDER THE NEW SCHEME, I.E. S. 153A OR 153C. THE AMENDMENT MADE IN SS. 234A AND 23 4B DOES NOT HELP THE CASE OF THE DEPARTMENT. THE SUBMISSION OF CIT-DEPAR TMENTAL REPRESENTATIVE THAT S. 153A STARTS WITH NON OBSTANTE CLAUSE AND EX CLUDES APPLICATION OF SS. 147 AND 148 RELATING TO REOPENING OF ASSESSMENTS IS TEN ABLE. BUT AT THE SAME TIME IN TERMS OF SS. 139, 142 AND 143, CONCLUDED ASSESSMENT S CAN BE REOPENED AS PER SS. 147 AND 148 IN CASE THE A O HAS REASONS TO BEL IEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND PROVIS IONS OF SS. 153A TO 153C CAN BE RESORTED TO FOR THE ASSESSMENT OF UNDISCLOSE D INCOME IN SEARCH CASES. ALL THE THREE PROCEDURES OF ASSESSMENT OPERATE IN DIFFE RENT FIELDS AND HAVE DIFFERENT PURPOSES TO BE FULFILLED ALTOGETHER. ITEMS OF REGUL AR ASSESSMENT CANNOT BE ADDED BACK IN THE PROCEEDINGS UNDER S. 153C WHEN NO INCRIMINATING DOCUMENTS WERE FOUND IN RESPECT OF THE DISALLOWED AMOUNTS IN THE SEARCH PROCEEDINGS. THE ADDITIONS MADE BY THE A O, BEING ALL RELATING TO RE GULAR ASSESSMENTS ARE HEREBY DELETED. 18. THE ITAT BANGALORE BENCH IN THE CASE OF P. SRIN IVAS NAIK (SUPRA) HELD THAT IF ANY DOCUMENTS FOUND THOUGH PERTAINING TO THE ASSESS EE, IF NOT BELONGING TO SUCH ASSESSEE; THE ACTION U/S 153C READ WITH SECTION 153 A CANNOT BE INVOKED. THE TRIBUNAL IN THIS CASE HELD AS UNDER: 7. WE HAVE HEARD BOTH THE PARTIES. IT IS AN UNDISP UTED FACT THAT BOOKS OF ACCOUNT OR DOCUMENTS DO NOT BELONG TO THE ASSESSEE, AS THESE WERE SEIZED FROM THE PREMISES OF SHRI REDDY. IT IS NOWHERE STATED TH AT THESE BOOKS OF ACCOUNT OR DOCUMENTS SHOWED THAT ALL THE TRANSACTIONS BELONGIN G TO THE ASSESSEE. SUCH BOOKS OF ACCOUNT OR DOCUMENTS CONTAINED THE TRANSAC TIONS RELATING TO THE GROUP CONCERNS OF SHRI REDDY. NO VALUABLE BELONGING TO TH E ASSESSEE HAS BEEN SEIZED DURING THE COURSE OF SEARCH. THE TERM BELONGING, IM PLIED SOMETHING MORE THAN THE IDEA OF CASUAL ASSOCIATION. IT INVOLVES THE NOT ION OF CONTINUITY AND INDICATES ONE MORE OR LESS INTIMATE CONNECTION WITH THE PERSO N OVER A PERIOD OF TIME. THE BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DURING THE COU RSE OF SEARCH HAVE A CLOSE ASSOCIATION WITH THE GROUP CONCERN OF SHRI REDDY. I T RECORDS THE TRANSACTION CARRIED OUT BY THAT GROUP. IT DOES NOT RECORD THE T RANSACTION CARRIED OUT BY THE ASSESSEE. UNDER THE WEALTH-TAX ACT, ASSETS BELONGIN G TO ASSESSEE WERE TAXABLE. THE EXPRESSION BELONGING TO THE ASSESSEE CONNOTES B OTH THE COMPLETE OWNERSHIP AND LIMITED OWNERSHIP OF INTEREST. OF COURSE, BELON GING TO IS CAPABLE CONNOTING, INTEREST, WHICH IS LESS THAN ABSOLUTE PERFECT LEGAL TITLE. HOWEVER, THERE SHOULD BE SOME LIMITED OWNERSHIP OF INTEREST, IF IT IS TO BE PERMITTED THAT THE ASSETS BELONG TO THE ASSESSEE. IN THE INSTANT CASE, DOCUME NTS OR BOOKS OF ACCOUNT FOUND DURING THE COURSE OF SEARCH AND SEIZED CANNOT BE TERMED, TO BE INDICATING ANY LIMITED INTEREST OF THE OWNERSHIP OF THE ASSESS EE IN SUCH BOOKS OF ACCOUNT OR DOCUMENTS. THE LANGUAGE USED IN SECTION 153C IS MATERIALLY DIFFERENT FROM THE LANGUAGE USED UNDER SECTION 158BD. AS PER SECTI ON 158BD, IF ANY ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 14 UNDISCLOSED INCOME RELATES TO OTHER PERSON, THEN AC TION AGAINST SUCH OTHER PERSON CAN BE TAKEN PROVIDED SUCH UNDISCLOSED INCO ME IS REFERABLE TO THE DOCUMENT SEIZED DURING THE COURSE OF SEARCH. HOWEVE R, SECTION 153C SAYS THAT IF VALUABLE OR BOOKS OF ACCOUNT OR DOCUMENTS BELONG ING TO OTHER PERSONS ARE SEIZED THEN ACTION UNDER SECTION 153C CAN BE TAKEN AGAINST THAT PERSON. IN THE INSTANT CASE, WE ARE SATISFIED THAT BOOKS OF ACCOUN T OF DOCUMENTS DO NOT BELONG TO THE ASSESSEE AND, THEREFORE, THE ASSESSING OFFIC ER WAS NOT JUSTIFIED IN INITIATING ACTION UNDER SECTION 153A READ WITH SECT ION 153C OF THE INCOME-TAX ACT. THE ASSESSING OFFICER IS FREE TO TAKE PROPER R EMEDIAL MEASURE AS PER LAW. 19. THE DECISIONS RELIED UPON BY THE LEARNED DR WIL L NOT APPLY IN THIS CASES AS IN BOTH CASES THE THE FACTS ARE THAT THE ASSESSMENTS W ERE FRAMED U/S 153 A OF THE ACT I.E. THE ASSESSEE WAS THE PERSON IN WHOSE CASE SEARCH WA S INITIATED U/S 132(1) OF THE ACT. IT IS ALSO FOUND THAT THE ASSESSMENTS WERE PENDING IN THOSE CASES AND IT WAS ALSO OBSERVED THAT IT IS NOT THE COMPLAINT OF THE ASSES SEE THAT ANY INCOME WHICH IS ALREADY SUBJECTED TO THE ASSESSMENT U/S 143(3)/148 OF THE A CT WHICH WAS COMPLETED PRIOR TO SEARCH HAS ALSO BEEN INCLUDED IN THE ASSESSMENTS FR AMED U/S 153A OF THE ACT. THEREFORE, BOTH THE CASES RELIED UPON BY THE LEARNE D DR WILL NOT HELP THE CASE OF THE REVENUE. IN VIEW OF OUR ABOVE FINDING AND APPLYING THE DECISION OF THE ITAT CALCUTTA BENCH IN THE CASE OF LMJ INTERNATIONAL LTD.(SUPRA), SINCE WE HAVE FOUND THAT THE DOCUMENTS FOUND DURING THE SEARCH AT THE RESIDENTIA L PREMISES OF SHRI LALIT K PATEL AND KANTILAL M PATEL DO NOT BELONG TO THE ASSESSEE THE ASSESSING OFFICER WAS NOT COMPETENT TO INITIATE ACTION U/S 153C OF THE ACT SO AS TO FRAME ASSESSMENT U/S 153A OF THE ACT. WE, THEREFORE, SET ASIDE THE ASSESSMENTS. 20. THE DOUBT RAISED BY LEARNED DR THAT IF THE ORIG INAL ASSESSMENT ABATES AND IF SUBSEQUENTLY THE TRIBUNAL HOLDS THAT EVEN THE ASSES SMENTS U/S 153A OF THE ACT ARE ALSO INVALID, THE ENTIRE ASSESSMENT INCLUDING ORIGINAL A SSESSMENT STANDS CANCELLED. THE DOUBT IS NOW DISPELLED BY AMENDMENT TO SECTION 153A OF THE ACT WHEREBY SUB-SECTION (2) IS INCLUDED BY FINANCE ACT 2008 WITH RETROSPECT IVE EFFECT FROM 01-06-2003. IN SUCH A SITUATION THE ASSESSMENTS SHALL STAND REVIVED WIT H EFFECT FROM THE DATE OF RECEIPT OF ORDER OF SUCH ANNULMENT. THEREFORE, IN THE PRESENT CASE, SINCE WE HAVE HELD THAT ASSESSMENT U/S 153A READ WITH SECTION 153C DO NOT S URVIVE, THE ORIGINAL ASSESSMENT STANDS REVIVED. 7. IN THE PRESENT CASE, IT IS SEEN THAT WHEN THE SE ARCH WAS CONDUCTED AT THE PREMISES OF SHRI SUBHASH GAMBHIR, NO AMOUNT OF MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING OR BO OKS OF ACCOUNT OR ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 15 DOCUMENTS SEIZED BELONGED TO THE PRESENT ASSESSEE. NOTHING IS HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER THE PRESENT ASSESSEE. NO SUCH VALUABLE ARTICLES OR THING OR ANY BOOKS OF ACCOUNT OR DOCUMENTS HAVE BEEN REFERRED EVEN IN THE ASSESSMENT ORDER FOR FRAMING ASSESSMENT U/S.153-C OF THE I.T. ACT, 1961. SINCE FOR ALL THE SE YEARS, THE RETURNS WERE ORIGINALLY FILED AND PROCESSED AND SINCE NO ADDITIO NAL MATERIAL IS FOUND PERTAINING TO THE ASSESSEE WHICH IS HELD TO BE BELO NGING TO THE ASSESSEE, THE ASSESSING OFFICER DO NOT ASSUME JURISDICTION FOR FR AMING ASSESSMENT U/S.153C R.W.S. 153-A OF THE I.T. ACT, 1961. WE, T HEREFORE, CANCEL ALL THE ASSESSMENTS MADE FOR ALL THESE YEARS. SINCE WE HA VE CANCELLED THE ASSESSMENTS, WE DO NOT PROPOSE TO DEAL WITH GROUNDS RAISED BY THE REVENUE IN APPEALS AND GROUND RAISED BY THE ASSESS EE IN COS ON MERITS. 8. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A RE DISMISSED AND ALL THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALL OWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 05/02/2010 SD/- S D/- ( D.T.GARASIA ) ( DEEPAK R.SHAH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 05 / 02 /2010 T.C. NAIR ITA NOS.2684 TO 2688/AHD/2007 AND CO NOS.254 TO 258/AHD/2007 (FOR AYS 1999-2000 TO 2003-04) ACIT VS. M/S.GAMBHIR SILK MILLS - 16 COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT. 2. THE RESPONDENT 3. THE CIT CONCERNED. 4. THE LD. CIT(APPEALS)-II, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD