DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4, JAIPUR, JAIPUR V. ABHISHEK MISHRA, JAIPUR

ITA 1173/JPR/2024

AI Insights

The case involves an appeal by the Revenue against the order of the CIT(A), which had quashed the notice issued under Section 148 of the Income Tax Act for the assessment year 2014-15. The CIT(A)'s decision was based on a precedent set by the Rajasthan High Court, which ruled that in cases where incriminating material belonging to a person other than the one on whom the search was conducted is seized, the proper procedure is under Section 153C, not Section 148. The Revenue's appeal was dismissed as the department had already issued a notice under Section 153C for the same assessment year, rendering the appeal infructuous.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 472754 (ITAT-JAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Other Referred Cases: Deputy Commissioner of Income Tax (Central) Circle 1(2) V/s. M/s. MR. Shah Logistics Private Limited, Sri Dinkara Swarna Vs. Deputy Commissioner of Income Tax, M/s Aditi Constructions Vs. Deputy Commissioner of Income Tax & Ors, Kailash Chand Hirawat in ITA no. 1175/JP/2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P.P. MEENA; THRU
• Assessee Lawyers: ROHAN SOGANI
• Keywords: Documents seized
• Section: 147; 148; 143(3); 153A; 153C; 101

Judgement Text

" vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Mk0 ,l- lhrky{eh]U;kf;dlnL; ,oaJhjkBkSM+ deys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihyla-@ITA. No.1173/JPR/2024 fu/kZkj.ko\"kZ@AssessmentYears : 2012-13 The DCIT Central Circle -4 Jaipur cuke Vs. Shri Abhishek Mishra 506, Geeta Enclave, Vinoba Marg, C-Scheme, Jaipur LFkk;hys[kk la-@thvkbZvkjla-@PAN/GIR No.: AHBPM 7683 D vihykFkhZ@Appellant izR;FkhZ@Respondent C.O. No. 15/JPR/2024 (Arising out of vk;djvihyla-@ITA. No.1173/JPR/2024) fu/kZkj.ko\"kZ@AssessmentYears : 2012-13 Shri Abhishek Mishra 506, Geeta Enclave, Vinoba Marg, C-Scheme, Jaipur cuke Vs. The DCIT Central Circle-4 Jaipur LFkk;hys[kk la-@thvkbZvkjla-@PAN/GIR No.: AHBPM 7683 D vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksjls@Revenue by : Shri P.P. Meena, CIT-DR (Thru: V.H) a fu/kZkfjrh dh vksj ls@Assessee by : Shri Rohan Sogani, C.A. lquokbZ dh rkjh[k@Date of Hearing : 11/03/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 01/04/2025 vkns'k@ORDER PER:RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the Revenue is directed against the order of the ld. CIT(A), Jaipur-5 dated 18-07-2024for the assessment year 2014-15. The assessee has also filed the cross objection. The grounds of appeal 2 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA raised by the Department and the grounds of cross objection filed by the assessee are as under:- Ground of appeal by the Department ‘’(i) Whether the Learned CIT(A) erred in quashing the assessment proceedings based solely on the High Court judgment in DBCWP 18363/2019, without considering the unique facts and circumstances of the present case (ii) Whether on the facts and circumstances of the case and in law, the Hon CIT (A) is justified in holding that notice u/s 148 is not sustainable legally relying upon the order of Hon'ble Rajasthan High Court's order dated 19.03.2024 in D.B. Civil Writ Petition No. 18363/2019 and several other linked petitions wherein wrongly held that once there is incriminating material seized or requisitioned belonging or relatable to the person other than on whom search was conducted, Section 153C is to be resorted to without giving any finding that issuance of notice under section 148 was incorrect. Thus, the CIT (A) is not justified in quashing notice issued u/s 148 of the Act (iii) Whether the Learned CIT(A) erred in overturning the issuance of a notice under Section 148 of the Income Tax Act, 1961, despite the precedent set by the Hon. Supreme Court of India in Deputy Commissioner of Income Tax (Central) Circle 1(2) V/s. M/s. MR. Shah Logistics Private Limited (2022) 14 SCC 101 In light of the Supreme Court's ruling in the aforementioned case. the Learned CIT (A) should have upheld the issuance of the notice under Section 148, unless there were compelling reasons to deviate from the established legal precedent (iv) Whether on facts and circumstances of the case and in law, the Hon. CITIA) is justified holding that the fact of the case are squarely covered with the facts of the case in matter of Sri Dinkara Swarna Vs. Deputy Commissioner of Income Tax and M/s Aditi Constructions Vs. Deputy Commissioner of Income Tax & Ors whereas the facts of the present case are not identical? (v) The appellant craves leave to add, amend or withdraw any of the ground of appeal during the course of appellate proceeding.’’ Ground of appeal by the Assessee in the C.O. 1. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in passing the order, without adjudicating all the contentions raised by the assessee, challenging assumption of jurisdiction by the Id. AO under Section 147 The action of the Id. CIT(A) is illegal, unjustified, arbitrary, and against the facts of the case Relief may please be granted by quashing the order of the Id. AO, considering all the contentions raised by the assessee challenging the reopening of the case. 3 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA 2. In the facts and circumstances of the case and in law, Id CIT(A) has erred in passing the order, without adjudicating on the merits of the case of the assessee, i.e. not deleting the additions made to the income of the assessee, for the year under consideration. The action of the Id. CIT(A) is illegal, unjustified, arbitrary, and against the facts of the case. Relief may please be granted by adjudicating on the merits of the case, apropos additions made to the income of the asseseee and deleting the same, as having been made without any basis.’’ 2.1 Apropos ground of appeal of the Department, it is noticed that the ld. CIT(A) has allowed the appeal of the assessee by observing as under:- ‘’4.2.7 In the above order Hon’ble High Court, Rajasthan has quashed the noticesissued under Section 148 and the resultant assessment orders. As per the above judgement, in cases of the person other than on whom search was conducted but material belonging or relating such person was seized or requisition, the AO has to proceed under Section 153C of the Act instead of section 147/148 of the Act as the proceedings in the relevant cases were initiated based on the incriminating material and documents including Pen Drives seized during the search carried out of in the case of Ramesh Manihar Group and the statements recorded during proceedings Further, as per the order of the Hon'ble High Court Rajasthan, applicability of Section 153C in cases where the seized material related to or belonged to person other than on whom search is conducted or requisition made does not render Section 148 otiose Section 148 shall continue to apply to the regular proceedings and also in cases where no incriminating material is seized during the search or requisition 4.2.8 As per decision of Hon'ble High Court. Rajasthan in the above wit petition, it is clear that the notice issued u/s 148 of the IT Act 1961 and the assessment order in the cases which were reopened on the basis of incriminating documents seized during the course of search in the case of Ramesh Manihar Group are quashed 4.2.9 Considering the facts of the present case, it is noticed that the case of the appellant was also reopened u/s 148 of the IT Act 1961 by the ld AO on the basis of information of advancing of unaccounted cash loans by the appellant through the broker Sh. Ramesh Chand Maheshwari and on the basis of seized material during the course of search proceedings in the Ramesh Manihar Group. 4.2.10 in the light of the above decision, as the facts of the present case are similar hence the above judgement of Hon'ble High Court is squarely applicable in the present case of the appellant. 4 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA 4.2.11 Accordingly the order passed by the AO u/s 147 rws 143(3) of the I.T. Act, 1961 has become ineffective as on date as the Hon'ble High Court Rajasthan has quashed the notice u/s 148 of the IT Act. 1961 and impugned orders in the cases which were re-opened on the basis of seized material during the course of search proceedings in the Ramesh Manihar Group 4.2.12 In these circumstances, the assessment order u/s 147 r.ws 143(3) of the I.T.Act 1961 under challenge in present appeal does not survive, the assessment order passed by the AO has become infructuous. Hence the ground of appeal challenging the legality of notice issued u/s148 of the Act is hereby allowed. In view of the above discussion and the facts of the case the argument of the appellant is acceptable. Thus, the Additional Ground of Appeal & Ground of Appeal No 1 are hereby allowed 5. Since the additions do not survive on technical ground that notice u/s 148 of the Act is not sustainable legally, the other grounds of appeal on the merits of such addition are rendered only academic and do not warrant detailed adjudication In view of the discussion, the subject grounds of appeal no 2 to 6 raised by the appellant are treated as disposed off 6. The last ground of appeal is that the assessee craves his nights to add. amend or alter any of the grounds on or before the hearing. During the course of appellate proceedings, the appellant has filed additional grounds of appeal and the same are considered. 7. In the result, the appeal is treated as allowed.’’ 2.2 During the course of hearing both the parties supported the orders of the lower authority as favavourable to them. 2.3 Ld. AR of the assessee submitted that the after quashing the notice issued u/s. 148 by the ld. CIT(A), the revenue has already issued another notice u/s. 153C of the Act for the year under consideration and this fact is already confirmed by the ld. DR vide his report dated 07.03.2025. Be that it 5 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA may so revenue cannot hold the two remedies for the same year and considering that aspect of the matter the present appeal filed by the revenue deserves to be dismissed and to support this contention he relied upon the decision of coordinate bench of Jaipur in the case of Kailash Chand Hirawat in ITA no. 1175/JP/2024. 2.4 On the other hand ld. DR did not dispute the fact of having issued notice u/s. 153C of the Act after the order of the ld. CIT(A) and this fact is also confirmed by the ld. DR by obtaining the copy of notice issued u/s. 153C of the Act. 2.5 After hearing both the parties and perusing the materials available on record, the Bench noticed that the issue which the revenue has raised has already been decided against the revenue and is covered by the decision dated 06-02-205 of ITAT Jaipur Bench in ITA No. 1175/JP/2024 for the assessment year 2011-12 wherein the Bench has observed as under:- ‘’5. In para 4.2.7 of the impugned order, Learned CIT(A) extracted findings recorded by the Hon’ble High Court. Said para reads as under:- “4.2.6 The findings of Hon'ble High Court, Rajasthan in the above order dated 19.03.2024 in D.B. Civil Writ Petition No.18363/2019 and several other linked petitions are a under: \"23. The reasons supplied in case in hand for initiation of proceedings under Section 147/148 are based on the incriminating material and documents including Pen Drives seized during the search carried out of the Manihar Group and the statements recorded during proceedings. From the information received the AO 6 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA noticed that the loan advanced and interest earned thereon were unaccounted. In other words the basis for initiation of Section 148 proceedings is the material seized relating to or belonging to the petitioner, during the search conducted ofManihar Group. 24. In the case where search or requisition is made, the AO under Section 153A mandatorily is required to issue notices to the assessee for filing of income tax return for the relevant preceding years. The AO assumes jurisdiction to assess/reassess 'total income' by passing separate order for each assessment. 25. In cases of the person other than on whom search was conducted but material belonging or relating such person was seized or requisition, the AO has to proceed under Section 153C. The two pre-requisites are that the AO dealing with the assessee on whom search was conducted or requisition made, being satisfied that seized material belongs or relates to other assessee shall hand over it to AO having jurisdiction of such assessee. Thereafter, the satisfaction of AO receiving the seized material that the material handed over has a bearing for determination of total income of such other person for the relevant preceding years. On fulfillment of twin conditions the AO shall proceed in accordance with the provisions of Section 153A. 26. Special procedure is prescribed under Section 153A to 153D for assessment in cases of search and requisition. There cannot be a quibble with the proposition that the special provision shall prevail over the general provision. To say it differently the provisions of Section 153A to 1530 have prevalence over the regular provisions for assessment or reassessment under Section 143 & 147/148. 27. Section 153A and 153C starts with non-obstante clause. The procedure for assessment reassessment in Section 153A, 153C in cases of search or requisition has an overriding effect to the regular provisions for assessment or reassessment under Sections 139, 147, 148, 149, 151 & 153. 28. The language of explanation 2 to new Section 148 is akin to Section 153A and Section 153C. Corollary being that after seizing of operational period of Section 153A to 153D, the cases being dealt thereunder were circumscribed in the scope of newly substituted Section 148. 29. The Department has not set up a case that for initiating proceedings under Section 148 it had material other than the material seized during the search of Manihar Group. The contention was that though the material with regard to unaccounted loan advanced by the petitioner was received, the earning of interest on unaccounted loan was derivation of the AO from the material received. The submission is that the derived conclusion cannot be acted upon under Section 153C. The submission lacks merit and shall defeat the concept of single 7 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA assessment order for each of relevant preceding years for assessing 'total income' in case of incriminating material found during search or requisition. 30. The argument that by enactment of Section 153A to 153D has not eclipsed Section 148 does not enhance the case of respondent to initiate the proceedings under Section 148. On fulfillment of two conditions for invoking Section 153C the proceeding in accordance with Section 153A are to be initiated. The operating field of and Section 1534 to 153D and Section 148 are different Applicability of Section 153C in cases where the seized material related to or belonged to person other than on whom search is conducted or requisition made does not render Section 148 otiose. Section 148 shall continue to apply to the regular proceedings and also in cases where no incriminating material is seized during the search or requisition. 31. The other aspect of the matter is that under Section 153A and 153C, the total income' is to be assessed. The total income includes returned income (if any), undisclosed income unearthed during the search or requisitioning and information possessed from the other sources. For Illustration: An assessee had returned income of Rs.100, undisclosed Income of Rs.200 is unearthed during search and there is information from annual information statement of non-disclosure of income of Rs. 150/-, The AO under Section 153A and 1530 shall pass order dealing with income of Rs. 100+Rs.200+Rs.150, the total income being Rs.450/-. In cases where there is no unearthing of undisclosed income of Rs.200/-, the department can resort to proceeding under Section 147/148. 32. The argument that Section 153C can be invoked in case there is incriminating material for all the relevant preceding years and otherwise Section 148 is to be resorted to, is misplaced. On satisfaction of the twin condition for proceedings under Section 153C, the AO has to proceed in accordance with Section 153A. Notice is to be issued for filing of the retums for relevant preceding years and thereupon proceed to assessee or reassesses the 'total income'. It is not obligatory on the AO to make assessment for all the years, the earlier orders passed may be accepted. But once there is incriminating material seized or requisitioned belonging or relatable to the person other than on whom search was conducted, Section 153C is to be resorted to. 40. In view of above discussion the notices issued under Section 148 and the impugned orders are quashed. However, the respondents shall be at liberty to proceed against the petitioners in accordance with law.\" 6. In para 4.2.7, while referring to the above said decision by our own Hon’ble High Court, Learned CIT(A) observed that as per said decision, in cases of person other than on whom search was conducted, the material belonging or relating to such person was seized or requisitioned, the AO had to proceed u/s 153C of the Act, instead of section 147/148 of the Act, the reason being that the 8 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA proceedings were initiated on the basis of incriminating material in the form of documents including pen-drives seized during search at the premises of the above named group, as well as statements recorded during said proceedings. 7. Today, when the appeal has been taken up for hearing, Ld. AR for the assessee has submitted copy of notice u/s 153C of the Act issued by Assistant Commissioner of Income Tax, Central Circle-4, Jaipur, relating to the same assessment year 2011-12 whereby the assessee has been required to prepare true and correct return of his total income for the said assessment years. 8. Admittedly, the department has issued notice u/s 153C of the Act. In this situation, it can safely be said that the department has given effect to the decision by our own Hon’ble High Court. The department having complied with and acted upon the above said decision by our own Hon’ble High Court, present appeal by the department can safely be said to have become infructuous. Result 9. As a consequence, this appeal is hereby dismissed as having become infructuous. ‘’ 2.6 On being consistent to the finding so recorded in the decision of the co-ordinate bench as relied upon by the ld. AR of the assessee in the case of Shri Kailash Chand Hirawat(supra), the appeal filed by the revenue is dismissed. 2.7 Since the appeal of the Department is dismissed, therefore, the C.O. of the assessee contending that the ld. CIT(A) has not decided the grounds raised by the assessee on the merits of the dispute become academic in naturewhich means the C.O.of the assessee also stands dismissed as infructuous. 9 ITA NO. 1173/JPR/2024 DCIT, CENTRALCIRCLE-4, VS SHRI ABHISHEK MISHRA 3.0 In the result, the appeal of the Department and C.O. of the assessee are dismissed as indicated hereinabove. Order pronounced in the open Court on 01/04/2025. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh½ ¼ jkBkSM+ deys'kt;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@JudcialMember ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 01 / 04/2025 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1 vihykFkhZ@The Appellant- DCIT, Central Circle-4, Jaipur 1. izR;FkhZ@The Respondent- Shri Abhishek Mishra, Jaipur 2. vk;djvk;qDr@CIT 4. vk;djvk;qDr@CIT(A) 5. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZQkbZy@Guard File {ITA No. 1173& CO No. 15/JPR/2024} vkns'kkuqlkj@By order lgk;diathdkj@Asst. Registrar "