DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER V. M/S SHRI RAJLAXMI DENIM, BHILWARA

ITA 1134/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3730 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 03-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: O.P. BHATEJA ITP
• Keywords: Search and seizure; Question of law; Block assessment; Notional interest; Reassessment proceedings; Set aside; CHAPTER XIVB
• Section: 147; 68; 148; 132; 139; 143(3); 142(1); 153A; 143(2); 73; 13; 153; 22; 153C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO , JM VK;DJ VIHY LA-@ ITA NO. 1134/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2015-16 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. M/S SHRI RAJLAXMI DENIM, NO. 35, BADAL COMPLEX, BHILWARA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AASCS 5931 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI B.K. GUPTA (CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI O.P. BHATEJA (ITP) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/02/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/03/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 26/7/2018 OF LD. CIT(A), AJMER FOR THE A.Y. 2015-16. THE REVENUE HAS RAISED FOLLOWING GROUNDS: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN QUASHING THE ASSESSMENT ORD ER AND NOT CONSIDERING THE FACTS THAT THE ASSESSEE FILED RETUR N WITH THE ITO, WARD-3, BHILWARA AND THE SAME ITO ISSUED NOTICE U/S 143(2). THEREFORE, NOTICE U/S 143(2) WAS ISSUED VALIDLY BY THE ITO, WARD-3, BHILWARA. SUBSEQUENT TO ISSUE OF NOTICE CASE WAS TR ANSFERRED TO ITO, WARD-4, BHILWARA WHO HAS ULTIMATELY PASSED THE ORDER U/S 143(3) OF THE I.T. ACT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN QUASHING THE ASSESSMENT ORD ER AND IN NOT ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 2 CONSIDERING THE PROVISIONS OF SECTION 124(3) OF THE II ACT WHEREIN IT IS PROVIDED THAT IF AN ASSESSEE QUESTIONS THE JURIS DICTION OF AN ASSESSING OFFICER HE HAS TO RAISE OBJECTION WITHIN ONE MONTH OF THE ISSUE OF NOTICE U/S 143(2). HOWEVER, NO SUCH OBJECT ION WAS RAISED BY THE ASSESSEE AND ASSESSEE FILED REPLY TO QUESTIO NNAIRE BEFORE THE ITO, WARD-3, BHILWARA ON 26.05.2016 AND BEFORE THE ITO, WARD-4, BHILWARA IS ON 27.11.2017. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED QUASHING THE ASSESSMENT ORDER AND IN NOT CONSIDERING THE PROVISIONS OF SECTION 292BB, WHEREI N IT IS PROVIDED THAT IF AN ASSESSEE APPEARING IN PROCEEDINGS AND CO -OPERATED IN ANY INQUIRY TO AN ASSESSMENT AND HAS NOT RAISED ANY OBJECTION ABOUT SUCH ISSUE OF NOTICE THEN HE SHALL BE PRECLUD ED FROM DOING SO LATER ON AFTER COMPLETION OF ASSESSMENT. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN QUASHING THE ENTIRE ASSESSM ENT PROCEEDINGS ON TECHNICAL GROUND WITHOUT GOING IN TO THE MERIT O F THE CASE. 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN ADMITTING AND DECIDING THE APPEAL FILED BY THE ASSESSEE WHEN THE ASSESSEE HAS NOT APPROACHED T HE CIT(A) WITH CLEAN HANDS BY NOT DISCLOSING EITHER BEFORE THE AO OR BEFORE THE CIT(A) THE FACT OF SEARCH & SEIZURE ACTION U/S 132( 1) OF THE INCOME TAX ACT HAVING CARRIED OUT IN THE CASE OF THE ASSES SEE ON 27.08.2017, DURING THE PENDENCY OF ASSESSMENT PROCEEDINGS. 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN NOT DECLARING THAT OWING TO THE SEARCH & SEIZURE ACTION IN THE CASE OF THE ASSESSEE CARRIED OUT ON 27.08.2017, THE PENDING ASSESSMENT U/S 143(3) GOT A BATED IN ACCORDANCE WITH THE PROVISIONS OF 2 ND PROVISO TO SECTION 153A(1) OF THE INCOME TAX ACT. 7. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, IT WAS NOT INCUMBENT UPON THE CIT(A) TO DECIDE THE MER ITS OF THE ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE MADE BY THE ASSESSING OFFICER DESPITE HOLDING THE ASSESSMENT U/S 143(3) T O BE INVALID IN ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 3 THE ABSENCE OF ANY NOTICE U/S 143(2) OF THE INCOME TAX ACT ISSUED BY ITO, WARD-4, BHILWARA. THE APPELLANT CRAVE, LEAVE OR RESERVING THE RIGHT TO AMEND MODIFY, ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE ASSESSEE E-FILED ITS RETURN OF INCOME ON 28/9 /2015 DECLARING TOTAL INCOME OF RS. NIL. THE SAID RETURN WAS FILED BY THE ASSESSEE WITH THE ITO, WARD (3), BHILWARA, ACCORDINGLY, A NOTICE U /S 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSUED BY THE ITO, WARD (3), BHILWARA ON 10/5/2016. A NOTICE U/S 142(1) OF T HE ACT WAS ALSO ISSUED ON 11/5/2016 FIXING THE HEARING OF SCRUTINY ASSESSMENT ON 26/5/2016. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED WRITTEN SUBMISSIONS ON 26/5/2016 THEREAFTER THE CASE WAS TRA NSFERRED TO THE JURISDICTION OF ASSESSING OFFICER I.E. ITO, WARD (4) , BHILWARA, WHO AFTER ISSUING THE NOTICE U/S 142(1) OF THE ACT COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT ON 29/12/2017. WHEREBY AN ADDITIO N OF RS. 20.50 CRORES WAS MADE U/S 68 OF THE ACT ON ACCOUNT OF SHAR E PREMIUM RECEIVED BY THE ASSESSEE COMPANY. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) AND ALSO RAISED AN OBJECTION AGAINST THE VALIDITY OF THE ASSESSMENT FOR WANT OF NOTICE U/S 143(2) OF THE ACT ISSUED BY THE SECOND A.O. I.E. ITO, WARD (4), BHILWARA WHO HAS COMPLETED TH E ASSESSMENT. ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 4 THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSE E AND QUASHED THE ASSESSMENT BY HOLDING THAT IN ABSENCE OF NOTICE ISS UED U/S 143(2) OF THE ACT, THE IMPUGNED ASSESSMENT IS ILLEGAL. THE OTHER G ROUNDS RAISED BY THE ASSESSEE WERE NOT ADJUDICATED BY THE LD. CIT(A). THUS, THE GRIEVANCE OF THE REVENUE IS THAT ONCE THE ASSESSEE HAS FILED RET URN OF INCOME WITH THE ITO WARD (3), BHILWARA WHO HAS DULY ISSUED NOTICE U/S 143(2) OF THE ACT AND WAS ACKNOWLEDGED BY THE ASSESSEE BY FILING THE DE TAILS AND WRITTEN SUBMISSIONS THEN IN ABSENCE OF ANY OBJECTION RAISED BY THE ASSESSEE AGAINST THE JURISDICTION OF THE ITO WARD (3), BHILWA RA, THE SUBSEQUENT TRANSFER OF THE JURISDICTION FROM ONE ITO TO ANOTHE R ITO CANNOT BE CHALLENGED BY THE ASSESSEE. THEREFORE, THE ASSESSME NT PROCEEDINGS WERE TRANSFERRED FROM ONE ITO TO ANOTHER ITO AT THE STAGE WHERE IT WAS PENDING BEFORE THE FIRST ITO AND IT WOULD RESUME FRO M THAT VERY STAGE AS IT WAS PENDING AT THE TIME OF TRANSFER. 4. BEFORE US, THE LD CIT-DR HAS RELIED UPON A SERIE S OF DECISIONS ON THIS POINT AS UNDER: (I) ABHISHEK JAIN VS ITO (2018) 94 TAXMANN.COM 355 (DEL) (II) ELITE PHARMACEUTICALS VS. ITO (2016) 73 TAXMANN .COM 69 (CAL). (III) BAL CHAND JAIN & SONS VS. DCIT (2014) 41 TAXMA NN.COM 524 (ALLAHABAD) ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 5 (IV) KARANDHAI TAMIL SANGAM VS JOINT/ADDL.CIT (2018) 97 TAXMANN.COM 50 (CHENNAI TRIB). THE LD CIT-DR HAS ALSO ADVANCED THE ARGUMENTS AT LEN GTH ON THE POINT THAT ONCE THE NOTICE U/S 143(2) OF THE ACT WAS ISSUE D BY THE ITO WARD (3), BHILWARA THEN NO SECOND NOTICE WAS REQUIRED TO B E ISSUED BY THE ITO WARD (4), BHILWARA ON TRANSFER OF JURISDICTION. 5. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS REITERATED ITS CONTENTION AS RAISED BEFORE THE LD. CIT(A) AND SUBM ITTED THAT WHEN THE ITO WARD (3), BHILWARA WAS NOT HAVING THE JURISDICTIO N OVER THE ASSESSEE AT THE TIME OF ISSUING NOTICE U/S 143(2) OF THE ACT THEN THE ASSESSMENT COMPLETED BY THE ITO WARD (4), BHILWARA WITHOUT ISSUIN G THE FRESH NOTICE U/S 143(2) OF THE ACT IS INVALID FOR WANT OF JURISDI CTION. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE SERIES OF DECISI ONS ON THE POINT THAT AN ASSESSMENT COMPLETED WITHOUT ISSUING NOTICE U/S 1 43(2) OF THE ACT IS INVALID. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. ON CAREFULLY PERUSAL OF THE REC ORD, WE NOTE THAT THERE WAS A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT I N THE CASE OF THE ASSESSEE ON 27/8/2017. THIS FACT IS REVEALED BY THE REVENUE IN GROUNDS NO. 5 AND 6 RAISED IN THIS APPEAL. THE ASSESSEE HAS NOT DISPUTED THE FACT OF SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 27/8/2017. IT IS ALSO ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 6 NOT IN DISPUTE THAT ON THE DATE OF SEARCH ON 27/8/2 017, THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING. THOUGH, THE VALIDITY OF THE ASSESSMENT IS CHALLENGED BY THE ASSESSEE, HOWEVER, O NCE THERE IS A SEARCH U/S 132 OF THE ACT AND ON THE DATE OF SEARCH I.E. ON 27/8/2017, THE ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSI DERATION WERE PENDING AND ASSESSMENT WAS NOT COMPLETED THEN IN VIE W OF THE PROVISIONS OF SECTION 153A READ WITH 2 ND PROVISO TO SUB-SECTION (1) OF SECTION 153A OF THE ACT ANY ASSESSMENT PENDING ON T HE DATE OF INITIATION OF SEARCH U/S 132 OR REQUISITION U/S 132A OF THE AC T, AS THE CASE MAY BE, SHALL ABATE. FOR READY REFERENCE, WE QUOTE SECTION 1 53A OF THE ACT AS UNDER: 153A . 21 [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , IN THE CASE OF A PERSON 22 WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST 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 SP ECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESP ECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REF ERRED TO IN CLAUSE ( B ), IN THE PRESCRIBED FORM AND V ERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRES CRIBED AND THE PROVISIONS OF THIS ACT SHALL, 22 SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETU RN WERE A RETURN REQUIRED 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 PREVIOU S YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASS ESSMENT YEARS 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] : ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 7 PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING T O ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YE ARS 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN THIS 24 [SUB-SECTION] PENDING 25 ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE 25 : 26 [ PROVIDED ALSO THAT THE CENTRAL GOVERNMENT MAY BY RULES 27 MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHALL NOT BE R EQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE 28 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS]:] 28 [ PROVIDED ALSO THAT NO NOTICE FOR ASSESSMENT OR REASSESSMENT SHAL L BE ISSUED BY THE ASSESSING OFFICER FOR THE RELEVANT ASSESSMENT YEAR OR YEARS UNLESS ( A ) THE ASSESSING OFFICER HAS IN HIS POSSESSION BOOKS O F ACCOUNT OR OTHER DOCUMENTS O R EVIDENCE WHICH REVEAL THAT THE INCOME, REPRESENTED IN THE FORM OF ASSET, WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUN T TO FIFTY LAKH RUPEES OR MORE IN THE RELEVANT ASSESSMENT YEAR OR IN AGGREGATE IN THE RELEVANT ASSESSMENT YEARS; ( B ) THE INCOME REFERRED TO IN CLAUSE ( A ) OR PART THEREOF HAS ESCAPED ASSESSMENT FOR SUCH YEAR OR YEARS; AND ( C ) THE SEARCH UNDER SECTION 132 IS INITIATED OR REQ UISITION UNDER SECTION 132A IS MADE ON OR AFTER THE 1ST DAY OF APRIL, 2017. EXPLANATION 1 .FOR THE PURPOSES OF THIS SUB-SECTION, THE EXPRESS ION 'RELEVANT ASSESSMENT YEAR' SHALL MEAN AN ASSESSMENT YEAR PREC EDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE WHICH FALLS BEYOND SIX ASSESSMENT YEARS BUT NOT LAT ER THAN TEN ASSESSMENT YEARS FROM THE END OF THE ASSESSMENT YEAR RELEVANT TO THE PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. EXPLANATION 2 .FOR THE PURPOSES OF THE FOURTH PROVISO, 'ASSET' S HALL INCLUDE IMMOVABLE PROPERTY BEING LAND OR BUILDING OR BOTH, SHARES AND SECURITIES, LOANS AND ADVANCES, DEPOSITS IN BANK ACCOUNT.] 29 [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APPEAL O R ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTION ( 1) OR SECTION 153 , THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHI CH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WIT H EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE 30 [PRINCIPAL COMMISSIONER OR] COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF S UCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION .FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 8 ( I ) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMEN T MADE UNDER THIS SECTION; ( II ) IN AN ASSESSMENT OR REASSESSME NT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. THE LD CIT-DR HAS FILED A LETTER OF THE ASSESSING OF FICER WHEREBY IT HAS BEEN STATED THAT THE PROCEEDINGS U/S 153A OF THE AC T HAS BEEN INITIATED BY ISSUING THE NOTICE ON 31/10/2018 AND THEREFORE, THE ASSESSMENT PROCEEDINGS U/S 153A OF THE ACT ARE PENDING BEFORE THE ASSESSING OFFICER. THE LD COUNSEL FOR THE ASSESSEE HAS NOT DIS PUTED ALL THESE FACTS OF INITIATION OF PROCEEDINGS U/S 153A AND THE ASSES SMENT PROCEEDINGS IN PURSUANT TO THE SEARCH ARE PENDING BEFORE THE ASSES SING OFFICER. THEREFORE, THE QUESTION ARISES WHETHER THE ASSESSMEN T COMPLETED BY THE ASSESSING OFFICER AFTER THE SEARCH AND SEIZURE ACTI ON U/S 132 OF THE ACT ON 27/8/2017 WILL SURVIVE WHEN THE SAID PENDING ASSES SMENT WAS ALREADY GOT ABATED BY VIRTUE OF THE SEARCH. THIS ISSUE WAS I NITIALLY CONSIDERED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA 352 ITR 493 AND HELD IN PARA 22 AS UNDER: 22. IN THE LIGHT OF OUR DISCUSSION, WE FIND IT DIFFIC ULT TO UPHOLD THE VIEW OF THE TRIBUNAL EXPRESSED IN PARA 9.6 OF ITS ORDER THAT SI NCE THE RETURNS OF INCOME FILED BY THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDE RATION BEFORE THE SEARCH TOOK PLACE WERE PROCESSED UNDER SECTION 143(1)(A) OF THE ACT, THE PROVISIONS OF SECTION 153A CANNOT BE INVOKED. THE ASSESSING OFFIC ER HAS THE POWER UNDER SECTION 153A TO MAKE ASSESSMENT FOR ALL THE SIX YEA RS AND COMPUTE THE TOTAL INCOME OF THE ASSESSEE, INCLUDING THE UNDISCLOSED I NCOME, NOTWITHSTANDING THAT THE ASSESSEE FILED RETURNS BEFORE THE DATE OF SEARCH WHICH STOOD PROCESSED UNDER SECTION 143(1)(A). THE OTHER REASON GIVEN BY THE TRIBUNAL IN THE SAME ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 9 PARAGRAPH OF ITS ORDER THAT NO MATERIAL WAS FOUND D URING THE SEARCH IS FACTUALLY UNSUSTAINABLE SINCE THE ENTIRE CASE AND ARGUMENTS B EFORE THE DEPARTMENTAL AUTHORITIES AS WELL AS THE TRIBUNAL HAD PROCEEDED O N THE BASIS THAT THE DOCUMENT EMBODYING THE TRANSACTION WITH MOHINI SHAR MA WAS RECOVERED FROM THE ASSESSEE. WHILE SUMMARIZING THE CONTENTIONS OF THE ASSESSEE IN PARAGRAPH 5 OF ITS ORDER, THE TRIBUNAL ITSELF HAS REFERRED TO THE CONTENTION THAT NO DOCUMENT MUCH LESS INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH OF THE ASSESSEE'S PREMISES, EXCEPT ONE UNSIGNED UNDERTAKIN G FOR LOAN. AGAIN IN PARAGRAPH 10 OF ITS ORDER, WHILE DEALING WITH THE A SSESSEE'S CONTENTION AGAINST THE ADDITION OF RS. 1,50,000/- BEING UNEXPLAINED LO AN GIVEN TO MOHINI SHARMA, THE TRIBUNAL HAS STATED THAT IT HAS ANALYZED 'THE S UBJECT DOCUMENT CAREFULLY, RECOVERED FROM SEARCH' SUGGESTING THAT THE DOCUMENT WAS RECOVERED DURING THE SEARCH FROM THE ASSESSEE. THE TRIBUNAL HAS EVEN PROCEEDED TO DELETE THE ADDITION OF RS. 1,50,000/- AS WELL AS THE NOTIONAL INTEREST ON MERITS, HOLDING THAT THE DOCUMENT WAS UNSIGNED, THAT MOHINI SHARMA WAS NOT EXAMINED BY THE INCOME TAX AUTHORITIES AND THERE WAS NO CORROBO RATION OF THE UNSIGNED DOCUMENT. IF IT IS NOT IN DISPUTE THAT THE DOCUMENT WAS FOUND IN THE COURSE OF THE SEARCH OF THE ASSESSEE, THEN SECTION 153A IS TR IGGERED. ONCE THE SECTION IS TRIGGERED, IT APPEARS MANDATORY FOR THE ASSESSING O FFICER TO ISSUE NOTICES UNDER SECTION 153A CALLING UPON THE ASSESSEE TO FILE RETU RNS FOR THE SIX ASSESSMENT YEARS PRIOR TO THE YEAR IN WHICH THE SEARCH TOOK PL ACE. THERE ARE CONTRADICTIONS IN THE ORDER OF THE TRIBUNAL. WE ARE UNABLE TO APPR ECIATE HOW THE TRIBUNAL CAN SAY IN PARA 9.6 THAT NO MATERIAL WAS FOUND DURING T HE SEARCH AND AT THE SAME TIME IN PARAGRAPH 10 DEAL WITH THE MERITS OF THE AD DITIONS BASED ON THE DOCUMENT RECOVERED DURING THE SEARCH WHICH ALLEGEDL Y CONTAIN THE LOAN TRANSACTION WITH MOHINI SHARMA. THEREFORE, BOTH THE REASONS GIVEN BY THE TRIBUNAL FOR HOLDING THAT THE ASSESSMENTS MADE UNDE R SECTION 153A WERE BAD IN LAW DO NOT COMMEND THEMSELVES TO US. THE RESULT IS THAT THE FIRST SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN THE NEGATIVE, IN FAV OUR OF THE REVENUE AND AGAINST THE ASSESSEE. THEREFORE, IT IS INCUMBENT UPON THE ASSESSING OFFICE R TO ISSUE NOTICE U/S 153A OF THE ACT FOR ALL THE SIX ASSESSMENT YEARS FA LLING WITHIN THE PERIOD AS PRESCRIBED U/S 153A OF THE ACT AND THEREAFTER HA S TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. THE HON'BLE HIGH COURT HAS HELD IN S PECIFIC TERMS THAT IT HAS BEEN PROVIDED IN SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 10 THAT ANY PROCEEDINGS FOR THE ASSESSMENT OR REASSESS MENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATION OF SEARCH OR MAKING REQUISITION SHALL ABATE. THEREFORE, THE ASSESSING OF FICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS RELEVANT TO THE IMMEDIATELY PRECEDING ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. THE TERM ASSESS IN SECTION 153A IS USED IN RESPECT OF THE ASSESSMENTS WHICH ARE PENDING AS ON THE DATE OF SEARCH AND GOT ABATED WHEREAS THE TERM REASS ESS IS USED IN RESPECT OF THOSE ASSESSMENT YEARS WHERE THE ASSESSM ENT WAS ALREADY COMPLETED AND WAS NOT PENDING AS ON THE DATE OF SEAR CH, THEREFORE, IN ORDER TO ENSURE THAT THERE CANNOT BE MORE THAN ONE ASSESSMENT ORDER FOR THE SAME ASSESSMENT YEAR DETERMINING TOTAL INCO ME OF THE ASSESSEE IN RESPECT OF SIX ASSESSMENT YEARS ONLY ONE DETERMI NATION OF TOTAL INCOME HAS BEEN PROVIDED U/S 153A OF THE ACT. THE HONBLE J URISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL (INDIA), JODHPUR VS. ACIT 219 TAXMAN 223 HAD ALSO OCCASION TO CONSIDER THIS ISSUE IN PARA 14 TO 24 AS UNDER: 14. IT WOULD BE RELEVANT TO NOTICE THE PROVISIONS OF S ECTION 153A OF THE ACT, WHICH READS AS UNDER: '153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION. - (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 11 ( A ) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTI CE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSM ENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED T O IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANN ER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PR OVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; ( B ) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVAN T TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS [REFERRED TO IN THIS SUB-SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE: PROVIDED ALSO THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY I T AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASE WHERE ANY A SSESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NO TICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATE LY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. (2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASS ESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APPEAL O R ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SEC TION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSME NT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE CO MMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF S UCH ORDER OF ANNULMENT IS SET ASIDE. EXPLANATION. - FOR THE REMOVAL OF DOUBTS, IT IS HEREBY 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 UNDE R THIS SECTION; ( II ) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RA TE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR.' 15. A PLAIN READING OF THE ABOVE PROVISION WOULD REVEA L THAT IF A SEARCH OR REQUISITION IS INITIATED AFTER 31.05.2003, THE AO IS UNDER AN OBLI GATION TO ISSUE NOTICE TO SUCH PERSON, WHO HAS BEEN SUBJECTED TO SEARCH/REQUISITION TO FUR NISH THE RETURN OF INCOME OF SIX YEARS ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 12 IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE AO IS THEN REQUIRED TO ASSESS OR REASSESS TOTAL INCOME OF THE SAID SIX YEARS AND, OUT OF THE SIX YEARS, IF ANY ASSESSMENT OR REASSESSMENT IS PENDING ON THE DATE OF INITIATION O F THE SEARCH, THE SAME WOULD ABATE I.E. PENDING PROCEEDINGS QUA THE SAID ASSESSMENT YEAR SH ALL NOT PROCEED THEREAFTER AND THE ASSESSMENT HAS TO BE MADE UNDER SECTION 153A(1)(B) OF THE ACT READ WITH THE FIRST PROVISO THEREUNDER. 16. FURTHER PROVISIONS HAVE BEEN MADE CONTEMPLATING A SITUATION WHERE AN ASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR OTHER LEGAL PROCEEDINGS. THE SECTION STARTS WITH A NON OBSTANTE CLAUSE, WHICH RE MOVES THE RESTRICTIONS UPON THE AO FROM ASSUMING JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147, 148 AND 151 ETC. 17. PRIOR TO INTRODUCTION OF SECTIONS 153A TO 153C, CH APTER XIVB OF THE ACT TOOK CARE OF THE ASSESSMENTS TO BE MADE IN CASES OF SEARCH AN D SEIZURE, WHICH WERE CALLED 'BLOCK ASSESSMENT', WHEREBY, A SINGLE ASSESSMENT WAS REQUI RED TO BE IN RESPECT OF A PERIOD OF BLOCK OF TEN YEARS PRIOR TO THE ASSESSMENT YEAR, IN WHICH, THE SEARCH WAS MADE. AFTER THE INTRODUCTION OF SECTIONS 153A TO 153C, A SINGLE BLOCK ASSESSMENT CONCEPT HAS BEEN GIVEN A GO BYE AND NOW THE AO HAS BEEN GIVEN THE PO WER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX YEARS IN QUESTION IN SEPARATE AS SESSMENT ORDERS. 18. TO CONSIDER THE RIVAL SUBMISSIONS MADE AT THE BAR IN THE CONTEXT OF THE PRESENT CASE AND THE SUBSTANTIAL QUESTION OF LAW FRAMED, THE SCO PE OF 'ASSESSMENT AND REASSESSMENT OF TOTAL INCOME' UNDER SECTION 153A(1)(B) AND THE F IRST AND SECOND PROVISO HAVE TO BE CONSIDERED. FURTHER, FOR ANSWERING THE ABOVE ISSUES , GUIDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1) OF THE ACT, AS SECTION 153A OF THE ACT CANNOT BE READ IN ISOLATION, INASMUCH AS, THE SAME IS TRIGGERED ONLY ON ACCOUNT OF ANY SEARCH/REQUISITION UNDER SECTIONS 132 OR 132A OF THE ACT. IF ANY BOOKS OF AC COUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COUR SE OF ORIGINAL ASSESSMENT AND, FOUND IN THE COURSE OF SEARCH, SUCH BOOKS OF ACCOUN T OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO CONSIDERATION WHILE ASSESSING OR REASSES SING THE TOTAL INCOME UNDER THE PROVISIONS OF SECTION 153A OF THE ACT. EVEN IN A CA SE WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENC E OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION. THE REQUIREMENT O F ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF S ECTIONS 132 OR 132A OF THE ACT, INASMUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF T HE CONCLUDED ASSESSMENTS DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABATED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED T O BE ASSESSED. 19. THE UNDERLINE PURPOSE OF MAKING ASSESSMENT OF TOTA L INCOME UNDER SECTION 153A OF THE ACT IS, THEREFORE, TO ASSESS INCOME WHICH WAS N OT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. THE PURPOSE OF SECOND PROVISO IS ALSO VE RY CLEAR, INASMUCH AS, ONCE A ASSESSMENT OR REASSESSMENT IS 'PENDING' ON THE DATE OF INITIATION OF SEARCH OR REQUISITION AND IN TERMS OF SECTION 153A A RETURN IS FILED AND THE AO IS REQUIRED TO ASSESS THE SAME, THERE CANNOT BE TWO ASSESSMENT ORDERS DETERMINING T HE TOTAL INCOME OF THE ASSESSEE FOR THE SAID ASSESSMENT YEAR AND, THEREFORE, THE PROVIS O PROVIDES FOR ABATEMENT OF SUCH PENDING ASSESSMENT AND REASSESSMENT PROCEEDINGS AND IT IS ONLY THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT WOULD BE THE ASSESSME NT FOR THE SAID YEAR. ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 13 20. THE NECESSARY COROLLARY OF THE ABOVE SECOND PROVIS O IS THAT THE ASSESSMENT OR REASSESSMENT PROCEEDINGS, WHICH HAVE ALREADY BEEN ' COMPLETED' AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL I NCOME AND, SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUI SITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN SUCH CASES, WHERE THE ASSESSMENTS ALREADY STANDS COMPLETED, THE AO CAN REOPEN THE ASS ESSMENTS OR REASSESSMENTS ALREADY MADE WITHOUT FOLLOWING THE PROVISIONS OF SECTIONS 1 47, 148 AND 151 OF THE ACT AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. 21. THE ARGUMENT RAISED BY THE COUNSEL FOR THE APPELLA NT TO THE EFFECT THAT ONCE A NOTICE UNDER SECTION 153A OF THE ACT IS ISSUED, THE ASSESS MENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND ASSESSEE HAS NO WARRANT IN LAW. 22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN REA DING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHIC H IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: ( A ) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATE D IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDIC TION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; ( B ) REGARDING OTHER CASES, THE ADDITION TO THE INCOME T HAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMI NATING MATERIAL AND ( C ) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST T IME UNDER SECTION 153A OF THE ACT IS NOT COMPLETED, THE CASE IN HAND, HAS TO BE CONSIDER ED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRI MINATING IS FOUND. IN SUCH A CASE THOUGH SECTION 153A OF THE ACT WOULD BE TRIGGERED A ND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRE D TO BE DONE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND T HE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. 23. THE RELIANCE PLACED BY THE COUNSEL FOR THE APPELLA NT ON THE CASE OF ANIL KUMAR BHATIA ( SUPRA ) ALSO DOES NOT HELP THE CASE OF THE ASSESSEE. THE RELEVANT EXTRACT OF THE SAID JUDGMENT READS AS UNDER: '19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HA VE ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSM ENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE O F THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSES S THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FR OM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSES SING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 14 QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSE SSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT T O BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIO USLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TA KING NOTE TO THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEE N REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTI ON 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE IS SUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBST ANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSES SING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED B Y SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED B E. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN T HE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SI X ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND P ROVISO TO SUB-SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABAT E'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULT IPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CO NSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE U NDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESS EE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CAN NOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME O F THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPEC T OF THE SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME , IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB-SECTION (1) OF SECTION 153A T HAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH AR E PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHA LL ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFF ICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOM E OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED D URING THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT THE SEARCH IS IN ITIATED OR REQUISITION IS MADE, THEY WILL ABATE MAKING WAY FOR THE ASSESSING OFFICE R TO DETERMINE THE TOTAL INCOME ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 15 OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOU LD ALSO BE INCLUDED, BUT IN CASE WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDIN GS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE BEEN PASSED DE TERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE N O PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL R EOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE O RDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CU LMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED O R THE REQUISITION WAS MADE.' (EMPHASIS SUPPLIED) 24. THE SAID JUDGMENT ALSO IN NO UNCERTAIN TERMS HOLDS THAT THE REASSESSMENT OF THE TOTAL INCOME OF THE COMPLETED ASSESSMENTS HAVE TO BE MADE TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH AND THE INCOME THAT ESCAPED ASSESSMENTS ARE REQUIRED TO BE CLUBBED TOGETHER WITH THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT AND ASSESSED AS THE TOTAL INCOME. THE OB SERVATIONS MADE IN THE JUDGMENT CONTRASTING THE PROVISIONS OF DETERMINATION OF UNDI SCLOSED INCOME UNDER CHAPTER XIVB WITH DETERMINATION OF TOTAL INCOME UNDER SECTIONS 1 53A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH D EALS WITH THE PENDING ASSESSMENT/REASSESSMENT PROCEEDINGS. THE FURTHER OB SERVATIONS MADE IN THE CONTEXT OF DE NOVO ASSESSMENT PROCEEDINGS ALSO HAVE TO BE READ IN CONTEXT THAT IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL IS FOUND DU RING THE COURSE OF SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAV E TO BE UNDERTAKEN. THUS, THE HON'BLE HIGH COURT HAS CONCURRED WITH THE V IEW OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR B HATIA (SUPRA) AND HELD THAT THE ASSESSMENT OR REASSESSMENT WHICH STAN D ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT, THE A SSESSING OFFICER ACTS IN HIS ORIGINAL JURISDICTION FOR WHICH THE ASSESSMEN T HAS TO BE MADE. IN OTHER WORDS THE JURISDICTION OF THE ASSESSING OFFICE R U/S 153A OF THE ACT IN RESPECT OF THE ASSESSMENTS WHICH WERE PENDING AS ON THE DATE OF SEARCH WOULD BE AS HIS ORIGINAL JURISDICTION FOR FRA MING THE REGULAR ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 16 ASSESSMENT AND NOT AS A REASSESSMENT. THE ONLY CONSE QUENCE OF THE SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT IN RES PECT OF ASSESSMENT PENDING ON THE DATE OF SEARCH IS THAT THE PENDING A SSESSMENT SHALL STAND ABATED AND THERE CANNOT BE TWO ASSESSMENT ORDERS. THE SECOND PROVISO ALSO MAKES IT CLEAR THAT THE ASSESSMENT OR REASSESS MENT IF ANY RELATING TO SIX ASSESSMENT YEARS REFERRED INTO IN SUB-SECTION ( 1) OF SECTION 153A OF THE ACT ON THE DATE OF INITIATION OF SEARCH U/S 132 OR REQUISITION U/S 132A OF THE ACT, AS THE CASE MAY BE, SHALL ABATE AND AS PER SUB-SECTION (2) OF SECTION 153A OF THE ACT IF ANY PROCEEDINGS OR ANY O RDER OF ASSESSMENT OR REASSESSMENT MADE U/S 153A OF THE ACT IS ANNULLED I N APPEAL OR ANY OTHER LEGAL PROCEEDINGS THEN THE ASSESSMENT OR REAS SESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECON D PROVISO WOULD STAND REVIVE. THUS, ANY PROCEEDINGS OF ASSESSMENT OR REASSESSMENT FALLING WITHIN SIX YEARS PRIOR TO THE SEARCH OR ACQU ISITION STAND ABATED, THE TOTAL INCOME OF THE ASSESSEE IS REQUIRED TO BE DETE RMINED U/S 153A OF THE ACT AND NOT UNDER THE PROCEEDINGS U/S 143(3) WHI CH ALREADY STOOD ABATED BY VIRTUE OF SEARCH. 6.1 THE HONBLE DELHI HIGH COURT HAS AGAIN CONSIDERE D THE ISSUE OF ABATEMENT OF PENDING ASSESSMENTS BY VIRTUE OF SEARC H AND SEIZURE ACTION U/S 132 OF THE ACT IN THE CASE OF CIT VS. KABUL CHAWL A 380 ITR 573, THE ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 17 LEGAL PROPOSITION LAID DOWN BY THE HON'BLE HIGH COUR T HAS BEEN SUMMARIZED IN PARA 37 AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, REA D WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTI ONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTIC E UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDI NG THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II . ASSESSMENTS AND REASSESSMENTS PE NDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPU TED BY THE AOS AS A FRESH EXERCISE. III . THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE S EARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX Y EARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE B ROUGHT TO TAX'. IV . ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST- SEARCH MATERIA L OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SEC TION ONLY ON THE BASIS OF SEIZED MATERIAL.' V . IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDI NGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO C OMPLETED ASSESSMENT PROCEEDINGS. VI . INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES I NTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECORD OF THE AO. VII . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH WERE ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 18 NOT PRODUCED OR NOT ALREADY DI SCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. THUS, IT IS A CONSISTENT VIEW TAKEN BY THE HONBLE DE LHI HIGH COURT AS WELL AS THE HONBLE JURISDICTIONAL HIGH COURT THAT T HERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF SIX ASSESSME NT YEARS IN WHICH BOTH THE DISCLOSED AND UNDISCLOSED INCOME WOULD BE B ROUGHT TO TAX. THE ASSESSMENT OR REASSESSMENT PENDING ON THE DATE OF S EARCH SHALL ABATE AND TOTAL INCOME FOR SUCH ASSESSMENT YEARS WILL HAVE TO BE COMPUTED BY THE ASSESSING OFFICER AS A FRESH EXERCISE. IN THE C ASE IN HAND WHEN THE ASSESSMENT PROCEEDINGS WERE PENDING ON THE DATE OF S EARCH ON 27/8/2017 THEN THE SAID PROCEEDINGS INITIATED U/S 1 43(3) STOOD ABATED BY VIRTUE OF SEARCH U/S 132(2) OF THE ACT AND THE I MPUGNED ORDER PASSED BY THE A.O. IS NONEST. CONSEQUENTLY THE ORDER PASSE D BY THE LD. CIT(A) ALSO BECOMES INFRUCTUOUS WHEN THE ASSESSMENT PROCEE DINGS ITSELF GOT ABATED AND THE ONLY COURSE OF DETERMINATION OF THE TOTAL INCOME OF THE ASSESSEE IS IN THE PROCEEDINGS INITIATED U/S 153A O F THE ACT. WE FURTHER NOTE THAT NEITHER THE ASSESSEE NOR THE ASSESSING OF FICER HAS BROUGHT THIS FACT TO NOTICE OF LD. CIT(A) THAT A SEARCH AND SEIZU RE ACTION U/S 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE DURING THE PENDENCY OF THE ASSESSMENT PROCEEDINGS. THEREFORE, THE IMPUGN ED ORDER PASSED BY THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) WOU LD OTHERWISE NOT ITA 1134/JP/2018_ DCIT VS. SHRI RAJLAXMI DENIM 19 SURVIVE BEING NONEST. ACCORDINGLY, THE TOTAL INCOME OF THE ASSESSEE WOULD BE DETERMINED IN THE PROCEEDINGS INITIATED U/S 153A OF THE ACT AND THERE WOULD BE NO CONSEQUENCE OF THE PROCEEDINGS BEF ORE US. SINCE THE ORDER OF THE LD. CIT(A) IS NOT VALID AS THE ASSESSME NT PROCEEDINGS ITSELF STOOD ABATED AND THE QUESTION OF VALIDITY OF THE AS SESSMENT FOR WANT OF NOTICE U/S 143(2) OF THE ACT DOES NOT ARISE. ACCORD INGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AS WELL AS THE ASSESSMENT OR DER PASSED BY THE ASSESSING OFFICER. 7. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH MARCH, 2019. SD/- SD/- JES'K LH 'KEKZ FOT; IKY JKO (RAMESH C SHARMA) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH MARCH, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE DCIT, CENTRAL CIRCLE, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- M/S SHRI RAJLAXMI DENIM, BHILWARA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1134/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR