ACIT, New Delhi V. M/s. Mapsa Tapes Pvt. Ltd., New Delhi

ITA 1216/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4930 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAMITA M BISWAS
• Keywords: Search and seizure; Document seized; Revised return; Documents seized; Set aside
• Section: 143(3); 133A; 153A; 195; 13; 153; 153C; 132; 15

Judgement Text

ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER . . /. I.T.A NOS.1216 & 1217/DEL/2017 / ASSESSMENT YEARS:2008-09 & 2009-10 ACIT CENTRAL CIRCLE-19, ROOM NO. 104, 1 ST FLOOR, ARA CENTRE, JHANDEWALAN EXTN. NEW DELHI. VS. MAPSA TAPES PVT. LTD. 4 TH FLOOR, PP TOWER, PLOT NO. C-1, C-2, C-3, NETAJI SUBHASH PLACE, PITAMPURA, NEW DELHI. PAN NO. AAAACM6345H APPELLANT / RESPONDENT /REVENUE BY MS. PRAMITA M. BISWAS, CIT DR /ASSESSEE BY SHRI C.S. AGGARWAL, SR. ADV. SHRI GAUTAM JAIN, ADV. / DATE OF HEARING: 17 .0 2 .20 20 /PRONOUNCEMENT ON 2 1 .0 2 .20 20 /O R D E R PER BHAVNESH SAINI, J.M. 1. BOTH THE APPEALS BY REVENUE ARE DIRECTED AGAINST TH E ORDER OF LD. CIT(APPEALS)-28, NEW DELHI DATED 15.12.2016 FOR AYS 2008-09 AND 2009-10 ON THE FOLLOWING GROUNDS: 1) THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN A NNULLING ORDER PASSED BY THE ASSESSING OFFICER AND IS HELD T O BE NULL AND VOID, WITHOUT PROPERTY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 2 2) ASSESSMENT YEAR IN RESPECT OF PROCEEDINGS U/S 153C OF THE ACT TO BE SAME 6 YEARS IN THE CASE OF OTHER PERSON, FOR WHICH THE PROCEEDINGS U/S 153A IS INITIATED IN THE CASE OF CO NNECTED SEARCHED PERSON. 3) (A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT T ENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURS E OF THE HEARING OF THE APPEAL. 2. IN THIS CASE, SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT ON 20.01.2014 IN THE CASE OF M/S MAPSA LOGISTIC S PVT. LTD., M/S MAPSA INFRA PVT. LTD. AND IN CASE OF SHRI PYARE LAL GUPTA , MRS. VEENA GUPTA AT D- 28, MODEL TOWN, DELHI. DURING THE COURSE OF SEARCH OPERATION AT THE ABOVE SAID PREMISES CERTAIN DOCUMENTS/HARD DISK PERTAININ G TO THE ASSESSEE WERE FOUND AND SEIZED. ACCORDINGLY, NOTICE U/S 153C OF THE ACT WAS ISSUED AND IN COMPLIANCE RETURN WAS FILED DECLARING INCOME OF RS. 41,13,310/- AND RS. 55,47,180/- FOR BOTH THE YEARS RESPECTIVELY. ASSES SMENTS U/S 153C/143(3) WERE COMPLETED ON 31.03.2016 BY MAKING ADDITIONS ON ACCOUNT OF SHARE CAPITAL/PREMIUM AND COMMISSION. 3. ASSESSEE CHALLENGED THE ADDITION AS WELL AS ASSESSM ENT ORDER TO THE ILLEGAL AND WITHOUT JURISDICTION. IT WAS SUBMITTED THAT AO HAD NO JURISDICTION TO MAKE ASSESSMENT U/S 153C OF THE ACT AS NO RELEVANT MATERIAL BELONGING TO THE ASSESSEE WAS FOUND DURING THE COURSE OF SEARCH. IN ABSENCE OF ANY INCRIMINATING MATERIAL, PROCEEDIN GS U/S 153C OF THE ACT COULD NOT BE INITIATED. IN ADDITION, IT WAS SUBMIT TED THAT EVEN OTHERWISE, ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 3 THE PROCEEDINGS IN RESPECT OF ASSESSMENT YEARS 2008 -09 & 2009-10 WERE BEYOND THE PERIOD OF SIX YEARS FROM THE END OF FINA NCIAL YEAR PRECEDING THE YEAR IN WHICH SEIZED MATERIAL IN QUESTION PERTAININ G TO ASSESSEE WAS HANDED OVER TO THE AO OF THE ASSESSEE FROM THE AO O F THE SEARCHED PERSON AND, THUS, OUTSIDE THE SCOPE OF SECTION 153C OF THE ACT. IT WAS SUBMITTED THAT SINCE SATISFACTION WAS RECORDED U/S 153C ON 23 .02.2016, THEREFORE, RELEVANT ASSESSMENT YEAR FOR INITIATING PROCEEDINGS U/S 153C WOULD BE ASSESSMENT YEARS 2010-11 TO 2015-16 AND, AS SUCH, N O ASSESSMENTS WOULD BE FRAMED U/S 153C OF THE ACT FOR ASSESSEE UNDER AP PEALS. THE ASSESSEE RELIED UPON THE JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS. RRJ SECURITIES LTD. 380 ITR 612. 4. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF THE A SSESSEE IN THE LIGHT OF THE ABOVE JUDGMENT, QUASH THE PROCEEDINGS U/S 153C OF THE ACT. THE FINDINGS OF LD. CIT(A) IN PARA 3 TO 3.4 ARE REP RODUCED AS UNDER: 3. I HAVE CAREFULLY CONSIDERED THE FACT OF THE CA SE AND THE SUBMISSION OF THE LD. AR. IN THE CASE UNDER CONSID ERATION THE ASSESSING OFFICER OF M/S MAPSA LOGISTICS PVT. LTD., M/S MAPSA INFRA PVT. LTD. SRI PYARE LAL GUPTA AND MRS. VEENA GUPTA RECORDER HIS SATISFACTION ON 23.02.2016 THAT CERTAI N DOCUMENT PERTAINING TO THE ASSESSEE M/S MAPSA TAPES PVT. LTD . HAS BEEN SEIZED DURING THE SEARCH AND SEIZURE OPERATION CARR IED OUT IN THE PREMISES OF M/S MAPSA LOGISTICS PVT. LTD., M/S MAPSA INFRA PVT. LTD. AT C1-3 NETAJI SUBHASH PLACE, PRITAMPURA, DELHI, AND IN THE CASE OF SHRI PYARE LAL GUPTA, MRS. VEENA GUP TA AT D-28, MODEL TOWN, DELHI. SUBSEQUENTLY, THE ASSESSING OFF ICER OF THE APPELLANT M/S MAPSA TAPES PVT. LTD. ALSO RECORDED H IS SATISFACTION NOTE ON 23.02.2016 FOR INITIATING PROC EEDING U/S 153C R.W.S. 153A OF THE ACT AND, ACCORDINGLY, NOTIC E U/S 153C DATED 23.02.2016 WAS ISSUED. 3.1 THERE IS NO AMBIGUITY THAT FOR INITIATION OF PR OCEEDINGS U/S 153C OF THE ACT, THE AO OF THE SEARCHED PERSON TO BE SATISFIED THAT THE ASSETS OR DOCUMENTS SEIZED BELON G TO OTHER ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 4 PERSON (BEING A PERSON OTHER THAN THE SEARCHED PERS ON) AND ACCORDINGLY THE SAME HAS TO BE HANDED OVER TO THE A O OF THE OTHER PERSON. SUBSEQUENTLY, THE AO OF THE OTHER PE RSON, ON RECEIVING THE DOCUMENTS AND THE ASSETS SEIZED, WOUL D HAVE JURISDICTION TO COMMENCE PROCEEDINGS U/S 153C OF TH E ACT. SECTION 153C(1) OF THE ACT CLEARLY POSTULATES THAT ONCE THE AO OF A PERSON, OTHER THAN THE ONE SEARCHED, HAS RECEI VED THE ASSETS OR THE DOCUMENTS, HE IS TO ISSUE A NOTICE TO ASSESS/RE- ASSESS THE INCOME OF SUCH PERSON THAT IS, THE ASS ESSEE OTHER THAN THE PERSON SEARCHED IN ACCORDANCE WITH PROVI SIONS OF SECTION 153A OF THE ACT. 3.2 THE PROVISO TO SECTION 153C(1) OF THE AT EXPRES SLY INDICATES THAT REFERENCE TO THE DATE OF INITIATION OF SEARCH FOR THE PURPOSES OF SECOND PROVISO TO SECTION 153A SHAL L BE CONSTRUED AS A REFERENCE TO THE DATE ON WHICH VALUA BLE ASSETS OR DOCUMENTS ARE RECEIVED BY THE ASSESSING OFFICER OF AN ASSESSEE (OTHER THAN A SEARCHED PERSON). HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RR J SECURITIS LTD. 380 ITR 612 (DEL) HAS HELD THAT THE DATE IN TE RMS OF PROVISO TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH UNDER THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTRUED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE ASSESEE (BEING TH E PERSON OTHER THAN THE ONE SEARCHED) TO THE AO HAVING JURIS DICTION TO ASSESS THE SAID ASSESSEE. FURTHER THE REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS AND ACCORDINGLY TH E DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION BY THE ASSESSING OFFICER OF THE SEARCHED PERSON. FURTHER THE RELEVANT ASSESSME NT YEARS FOR ISSUE OF NOTICE U/S 153C HAS TO BE RECKONED WIT H REFERENCE TO THE DATE OF RECORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. 3.3 IN THE CASE UNDER CONSIDERATION THE DATE OF THE RECORDING OF SATISFACTION U/S 153C OF THE ACT, IS 2 3 RD FEBRUARY, 2016. IT WOULD FOLLOW THAT THE SIX ASSESSMENT YEAR S FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE U/S 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO T HE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE A SSESSEE I.E. 23.02.2016. IN THIS CASE, THE DOCUMENTS SEIZE D PURSUANT TO THE SEARCH WERE DEEMED TO BE HANDED OVER TO THE AO OF THE ASSESSEE ON 23 RD FEBRUARY, 2016, BEING THE DATE OF RECORDING OF SATISFACTION AND, THEREFORE, SIX YEARS WHICH COULD BE ASSESSED U/S 153C OF THE ACT WERE THE PRECEDING PREVIOUS YEA RS FROM 1 ST APRIL, 2009 TO 31 ST MARCH, 2015 BEING RELEVANT TO AYS 2010-11 TO 2015-16. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF AY 2008-09 WOULD BE BEYOND THE PERIOD OF SIX YEARS. IN VIEW ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 5 OF THE ABOVE, ASSESSMENT FOR AY 2008-09 WERE OUTSID E THE SCOPE OF SECTION 153C OF THE ACT AND THE AO HAD NO JURISDICTION TO MAKE AN ASSESSMENT OF THE ASSESSEE S INCOME FOR THE YEAR IN QUESTION. HENCE, RESPECTIVELY FOLL OWING THE DECISION OF THE JURISDICTION HIGH COURT, IT IS HELD THAT THE ORDER IN QUESTION PASSED BY THE AO IS NOT IN ACCORDANCE W ITH THE PROVISION OF THE INCOME TAX ACT, 1961. ACCORDINGLY , THE ORDER PASSED BY THE ASSESSING OFFICER IS HELD TO BE NULL AND VOID AND, ACCORDINGLY, IT IS ANNULLED. 3.4 SINCE THE ORDER UNDER CONSIDERATION HAS BEEN HE LD TO BE NULL AND VOID, THE OTHER GROUND TAKEN BY THE APPELL ANT BECOME ACADEMIC. IN RESULT, THE APPEAL IS ALLOWED. 5. LD. DR RELIED UPON THE ORDER OF THE AO AND SUBMITTE D THAT VIEW OF THE CIT(A) HAVE NOT BEEN ACCEPTED BY THE DEPARTMENT . ON THE OTHER HAND, LD. COUNSEL FOR ASSESSEE REITERATED THE SUBMI SSIONS MADE BEFORE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NO T IN DISPUTE THAT SEARCH WAS CONDUCTED ON 20.01.2014 IN THE CASES OF M/S MAPSA LOGISTICS PVT. LTD. & ORS. AND SATISFACTION U/S 153C WAS RECO RDED ON 23.02.2016 THAT THE DOCUMENTS PERTAINING TO ASSESSEE HAVE BEEN SEIZ ED DURING THE COURSE OF SEARCH. THE AO, ACCORDINGLY, ISSUED NOTICE U/S 153C ON 23.02.2016. THE ISSUE IS, THEREFORE, COVERED BY JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES LTD. (SUPRA) AS IS CO NSIDERED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. THE SIX ASSESSMENT YEARS FO R WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE U/S 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO THE DATE OF HANDING OVER OF THE ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE I.E. 23. 02.2016. THEREFORE, THE RELEVANT ASSESSMENT YEARS FOR INITIATING PROCEE DINGS U/S 153C WOULD BE ASSESSMENT YEARS 2010-11 TO 2015-16. THEREFORE, THE ASSESSMENT YEARS ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 6 UNDER APPEAL I.E. 2008-09 & 2009-10 WOULD BE BEYOND THE PERIOD OF SIX YEARS. THE SAME VIEW IS CONSIDERED BY ITAT DELHI A BENCH IN THE CASE OF M/S BNB INVESTMENT & PROPERTIES VS. DCIT & ORS. REP ORTED IN 68 ITR 567 (DEL.) FOLLOWING THE JUDGMENT OF DELHI HIGH COURT I N THE CASE OF RRJ SECURITIES LTD. AND PR. CIT VS. SERVER AGENCY PVT. LTD. & ORS. 397 ITR 400. THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED AS UNDE R: IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES A : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.504/DEL./2015 ASSESSMENT YEAR 2012-2013 M/S. BNB INVESTMENT & PROPERTIES LTD., GROUND FLOOR, SOLTAIRE PLAZA, M.G. ROAD, GURGAON, HARYANA. PAN AAACB3800A VS THE DCIT, CENTRAL CIRCLE-1 FARIDABAD. (APPELLANT) (RESPONDENT) ITA.NO.503/DEL./2015 ASSESSMENT YEAR 2012-2013 SHRI RANJAN GUPTA, W-40, G.K.-II, NEW DELHI. PAN AAGPG8809F VS THE DCIT, CENTRAL CIRCLE-1 FARIDABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI RAJ KUMAR GUPTA, C.A. FOR REVENUE : SHRI RAVI KANT GUPTA, SR. D.R. DATE OF HEARING : 25.05.2018 DATE OF PRONOUNCEMENT : 27.06.2018 ORDER PER BHAVNESH SAINI, J.M. BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTE D AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A)-3, GURGAON, DATE D 09 TH DECEMBER, 2014, FOR THE A.Y. 2012-2013. 1.1. BOTH THE PARTIES MAINLY ARGUED IN ITA.NO.504/DE L./2015 IN THE CASE OF M/S. BNB INVESTMENTS & PROPERTIES LTD., AND SUBM ITTED THAT THE ISSUE IS SAME IN THE REMAINING APPEAL. ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 7 1.2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH T HE PARTIES AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE FINDINGS OF THE AUTHORITIES BELOW. FOR THE PURPOSE OF DISPOSAL OF B OTH THE APPEALS, WE DECIDE THE APPEAL IN THE CASE OF M/S. BNB INVESTMENTS & PROPERTI ES LTD., AS UNDER. ITA.NO.504/DEL./2015 M/S. BNB INVESTMENTS & PROPERTI ES LTD., A.Y. 2012- 2013 : 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE, A SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON M/S KRRISH GROUP OF CASES ON 09.11.2011. A SURVEY U/S 133A OF THE ACT WAS ALSO CARRIED OUT O N THE BUSINESS PREMISES OF THE ASSESSEE. ASSESSEE EARNED INCOME FROM BUSINESS AND OTHER SOURCES. THE ASSESSEE FILED ITS ORIGINAL RETURN DECLARING TOTAL INCOM E OF RS.2,08,95,242/- ON 28.09.2012. IN RESPONSE TO NOTICE UNDER SECTION 153 A(1) (A] R.W.S 153C, ASSESSEE FILED REVISED RETURN DECLARING TOTAL INCOM E OF RS. 2,22,43,593/-. ASSESSMENT WAS FRAMED AT RS. 5,22,43,593/- BY MAKING ADDITION OF RS.3 CRORES AS SURRENDERED AMOUNT NOT INCORPORATED IN THE RETUR N OF INCOME. ASSESSEE CHALLENGED THE VALIDITY OF THE ASSESSMENT PROCEEDIN GS AS WELL AS ADDITION ON MERIT BEFORE THE LD. CIT(A). HOWEVER, APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 3. ASSESSEE IN THE PRESENT APPEAL, CHALLENGED THE VALIDITY OF THE PROCEEDINGS UNDER SECTION 153C OF THE I.T. ACT AND ADDITION OF RS.3 CRORES. THE ASSESSEE ALSO MOVED AN APPLICATION FOR ADMISSIO N OF ADDITIONAL GROUNDS IN WHICH ASSESSEE RAISED THE FOLLOWING ADDITIONAL GROUN DS : 1. ADDITIONAL GROUND NO. 1 THAT UNDER THE FACTS AND CIRCUMSTANCES, IN THE ABS ENCE OF ISSUANCE AND SERVICE OF NOTICE U/S. 153 C R/W. SEC. 153A OF THE I.T.ACT, THE JURISDICTION FOR FRAM ING THE IMPUGNED ASSTT. HAS BEEN WRONGLY ASSUMED, HENCE, TH E IMPUGNED ASSTT. IS WITHOUT JURISDICTION, ILLEGAL AND UNSUSTAINABLE IN LAW. ADDITIONAL GROUND NO. 2 THAT WITHOUT PREJUDICE, AS THE SEIZED DOCUMENTS IN SEARCH OF A 3 RD PARTY HAVE BEEN RECEIVED BY THE AO OF THE ASSESSEE ON 29.08.2013, THEREFORE, IN VIEW OF S EC. 153C(1) (FIRST PROVISO), THE SEARCH YEAR IS A.Y. 2014-2015 AND NOT IMPUGNED A.Y. 2012-2013, HENCE, IN CASE, IF IMPUGNED ASSTT. HAS BEEN FRAMED U/S. 153 B (1) ( B) TREATING A.Y. 2012-2013 AS THE SEARCH YEAR, THE WHOLE ASSTT. PROCEEDINGS STAND S VITIATED IN LAW AND UNSUSTAINABLE BECAUSE THE A.Y. 2012-2013 FALLS WITH IN PERIOD OF PRECEDING 6 ASSTT. YEARS AS PROVIDED IN SEC.153A (1)(B), THEREF ORE, THE ASSTT. OF A.Y. 2012- 2013 WAS TO BE FRAMED ONLY U/S. 153C AND THAT TOO A FTER ISSUANCE AND SERVICE OF ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 8 NOTICE U/S. 153C R/W. SEC. 153A OF THE I.T.ACT WHIC H HAS NEVER BEEN ISSUED AS ADMITTED BY AO IN RT1 REPLY. 2. THAT BOTH THE ABOVE GROUNDS ARE PURE LEGAL GROUNDS WHICH GOES TO THE ROOT OF THE MATTER WHICH CAN BE TAKEN AT ANY STAGE OF PROCEEDIN GS BEFORE HONBLE ITAT. 3. THAT, FURTHER, NO NEW FACTS ARE REQUIRED TO BE INVESTIGATED OR PLA CE ON RECORDS FOR ADJUDICATING THESE GROUNDS WHICH ARE ALREADY AV AILABLE ON RECORDS. 4. THAT UNDER ABOVE MENTIONED FACTS AND CIRCUMSTANCES AND AS PER THE FOLLOWING AUTHORITIES, THESE ADDITIONAL GROUNDS DESERVES TO B E ADMITTED:- NATIONAL THERMAL POWER COMPANY LTD. 229 ITR 383 (SC) GEDORE TOOLS PVT. LTD., 238 ITR 268 (DEL.) 5. THAT WITHOUT PREJUDICE, THE ISSUES COVERED IN THESE ADDITIONAL GROUNDS ARE COVERED IN G.N. 1 AND G. N. 2, AS TAKEN INITIALLY I N FORM - 36 ALSO, HOWEVER, THESE HAVE BEEN TAKEN SPECIFICALLY ONLY AS A MATTER OF AB UNDANT PRECAUTION AND TO MEET OUT THE SITUATION IN CASE THE HONBLE COURT IS OF THE OPINION THAT THE SAME ARE NOT COVERED IN GROUND NOS. 1 & 2 AS INITIALLY T AKEN. 3.1. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T ADDITIONAL GROUNDS ARE LEGAL IN NATURE AND NO NEW FACTS SHALL HAVE TO BE CONSIDERED. HE, THEREFORE, SUBMITTED THAT ADDITIONAL GROUNDS MAY BE ADMITTED. HE HAS RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF NATIONAL THERMAL POWER CO. LTD., (1998) 229 ITR 383 (SC) AND GEDORE TOOLS PVT. LTD., 238 ITR 268 (DEL.). 4. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT ADDI TIONAL GROUNDS HAVE NO MERIT AND THE SAME MAY BE REJECTED. THE ASSESSMEN T HAS BEEN RIGHTLY FRAMED UNDER SECTION 153A(1)(B) OF THE I.T. ACT, 1961. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE ADDITIONAL GROUNDS ARE LEGAL IN NATURE AND NO N EW FACTS SHALL HAVE TO BE CONSIDERED. THE ADDITIONAL GROUNDS GO TO THE VALIDI TY OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 153C OF THE I.T. ACT, THER EFORE, THE SAME SHOULD BE ADMITTED FOR DECIDING THE APPEAL. THE HONBLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF VMT SPINNING CO LTD., VS. CIT (2016) 389 ITR 326 (P & H) CONSIDERING VARIOUS DECISIONS INCLUDING THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD ., (1998) 229 ITR 383 (SC) HELD THAT THE TRIBUNAL COULD DECIDE THE APPEAL ON A GROUND NEITHER TAKEN IN THE MEMORANDUM OF APPEAL NOR BY SEEKING ITS LEAVE. THE ONLY REQUIREMENT WAS THAT THE TRIBUNAL COULD NOT REST ITS DECISIONS ON ANY OTHER GROUND UNLESS THE PARTY WHO MIGHT BE AFFECTED HAD SUFFICIENT OPPO RTUNITY OF BEING HEARD ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 9 GIVEN ON THAT GROUND. THEREFORE, THE TRIBUNAL OUGHT TO HAVE EXERCISED ITS DISCRETION IN VIEW OF THE FACT THAT ASSESSEE INTEND ED RAISING ONLY A LEGAL ARGUMENT WITHOUT REFERENCE TO ANY DISPUTED QUESTION OF FAC TS. 5.1. CONSIDERING THE ISSUE IN THE LIGHT OF THE FACT THAT ADDITIONAL GROUNDS ARE LEGAL IN NATURE AND SHALL HAVE BEARING ON THE VALIDITY OF THE ASSESSMENT PROCEEDINGS, THEREFORE, THE SAME IS ADMI TTED FOR THE PURPOSE OF DISPOSAL OF THE APPEAL. 5.2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T SEARCH WAS CONDUCTED IN THE CASE OF M/S KRRISH GROUP OF CASES ON 09.11.2011. A SURVEY U/S 133A OF THE ACT WAS ALSO CARRIED OUT ON 22.11.2 011 AT THE BUSINESS PREMISES OF THE ASSESSEE-COMPANY AND ITS DIRECTOR. THE SEIZED/IMPOUNDED DOCUMENTS IN THE GROUP WERE RECEIVED BY THE A.O. ON 29.08.2013. THESE FACTS ARE MENTIONED IN THE ASSESSMENT ORDER. HE HAS REFER RED TO PB-161 WHICH IS SATISFACTION NOTE RECORDED UNDER SECTION 153C OF TH E I.T. ACT IN THE CASE OF ASSESSEE DATED 03.10.2013. THE SATISFACTION NOTE WA S, THEREFORE, RECORDED IN THE A.Y. 2014-2015 IN THE CASE OF THE PERSON SEARCH ED. PB-190 TO 195 ARE THE NOTICES ISSUED UNDER SECTION 153A R.W.S.153C OF THE I.T. ACT IN THE CASE OF THE ASSESSEE FOR A.YS. 2006-2007 TO 2011-2012. HE HAS S UBMITTED THAT NO NOTICE UNDER SECTION 153C HAVE BEEN ISSUED FOR ASSESSMENT YEAR UNDER APPEAL I.E., 2012-2013. HE HAS REFERRED TO PB-160 WHICH IS A REP LY FILED UNDER RTI ACT DATED 01.11.2016 BY DCIT, CC-1, GURGAON, IN WHICH, A.O. H AS REPORTED THAT NO NOTICE UNDER SECTION 153C WAS ISSUED FOR A.Y. 2012- 2013 AS IT WAS A SEARCH YEAR. HENCE, NOTICE UNDER SECTION 143(2)/142(1) WER E ISSUED. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. ACCORDINGL Y DID NOT PASS ANY ASSESSMENT ORDER UNDER SECTION 153C OF THE I.T. ACT AND PASSED THE ASSESSMENT ORDER UNDER SECTION 153B(1)(B) OF THE I. T. ACT BEING A SEARCH YEAR. HE HAS SUBMITTED THAT FIRST PROVISO TO SECTION 153C IS APPLICABLE IN THE CASE OF THE ASSESSEE BECAUSE NO SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE. THE AMENDMENT IN SECTION 153C CAME W.E.F. 01.04.201 7 WHICH IS PROSPECTIVE IN NATURE. ASSESSMENT IN A.Y. 2012-2013 UNDER APPEA L SHOULD HAVE BEEN COMPLETED UNDER SECTION 153C BEING 5 TH YEAR IN THE BLOCK OF 06 TH YEAR. THE FIRST PROVISO TO SECTION 153C(1) PROVIDES THAT IN C ASE OF SECTION 153C, THE DATE OF RECEIVING OF BOOKS OF ACCOUNT BY THE JURISD ICTIONAL A.O. SHALL HAVE TO BE CONSTRUE AS DATE OF INITIATION OF SEARCH. SINCE THE BOOKS OF ACCOUNT/IMPOUNDED DOCUMENTS HAVE BEEN RECEIVED BY T HE A.O. ON ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 10 29.08.2013, THEREFORE, A.Y. 2014-2015 WILL BE THE Y EAR OF SEARCH AND ASSESSMENTS UNDER SECTION 153C OF THE I.T. ACT SHOU LD HAVE BEEN COMPUTED FOR A.YS. 2008-2009 TO 2013-2014. SINCE, NO NOTICE UNDER SECTION 153C HAVE BEEN ISSUED FOR ASSESSMENT YEAR IN APPEAL, THEREFOR E, THE ASSESSMENT ORDER IS ILLEGAL, VOID AND BAD IN LAW. HE HAS RELIED UPON TH E JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. SARWAR AGENCY P. LTD., (2017) 397 ITR 400 (DEL.), ORDER OF ITAT, DELHI, B-BENCH IN TH E CASE OF ACIT VS. EMPIRE CASTING PVT. LTD., NEW DELHI IN ITA.NO.4018/DEL./20 11 AND C.O.NO.207/DEL./2012 DATED 21.11.2017 AND ORDER OF ITAT, DELHI, C-BENCH IN THE CASE OF PAVITRAREALCON PVT. LTD., NEW DELHI VS. ACIT, CENTRAL CIRCLE-32, NEW DELHIIN ITA.NOS. 3185, 3186 & 3253/DEL./2015 DA TED 04.10.2017. HE HAS ALSO REFERRED TO MEMORANDUM EXPLAINING FINANCE BILL 2017 IN WHICH IT IS PROVIDED THAT AMENDMENT IN SECTION 153C SHALL APPL Y IN RESPECT OF SEARCH CONDUCTED OR REQUISITION MADE ON OR AFTER 1 ST DAY OF APRIL, 2017. 6. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT SECT ION 153A(1) DEALS WITH THE YEARS OF REOPENING IN THE CASE OF SEARCH P ROCEEDING AND AS PER SECTION 153C(1) AFTER THE SATISFACTION, THE A.O. SH ALL PROCEED IN ACCORDANCE WITH PROVISIONS OF SECTION 153A(1) OF THE I.T. ACT. SECTION 153A(1)(B) IS VERY CLEAR THAT A.O. SHALL ASSESS OR RE-ASSESS THE TOTA L INCOME OF 06 ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED.NO WHERE THE SEC TION CONTAINS THE WORD DATE OF INITIATION OF THE SEARCH WHICH ARE REFERR ED TO BY THE FIRST PROVISO TO SECTION 153C OF THE I.T. ACT. HENCE, THE FIRST P ROVISO TO SECTION 153C OF THE I.T. ACT IS ONLY REFERRING TO THE ABATEMENT OF THE EXISTING PROCEEDINGS MENTIONED IN THE SECOND PROVISO TO SECTION 153A(1) OF THE I.T. ACT, AS CLEARLY MENTIONED IN THE FIRST PROVISO AND FURTHER CLARIFIE D BY USAGE OF WORDS THE DATE OF INITIATION OF SEARCH WHICH ARE NO WHERE MENTION ED IN SECTION 153A(1) OF THE I.T. ACT. EVEN AFTER THE AMENDMENT IN SECTIO N 153C, THE FIRST PROVISO STANDS AS IT IS IN THE STATUTE WHICH MAKES IT FURTH ER CLEAR THAT FIRST PROVISO TO SECTION 153C ALWAYS REFERRED TO ABATEMENT OF PROCEE DINGS AS MENTIONED IN THE SECOND PROVISO SECTION 153A(1) OF THE I.T. ACT, OTHERWISE, THE CURRENT 153C SHALL HAVE MAJOR INCONGRUITY AS TO WHETHER SIX YEARS WOULD BE RECKONED FROM THE DATE OF SEARCH AS MENTIONED IN THE AMENDED SECTION 153C(1) OR FROM THE DATE OF HANDING OVER OF THE DOCUMENTS AS MENTIO NED IN THE FIRST PROVISO OF SECTION 153C WHICH REMAINED UNAMENDED. HE HAS, T HEREFORE, SUBMITTED ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 11 THAT ASSESSMENT HAVE BEEN RIGHTLY FRAMED UNDER SECT ION 153A(1)(B) OF THE I.T. ACT, 1961. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. SECTI ON 153C OF THE I.T. ACT, 1961, AS IS APPLICABLE TO ASSESSMENT YEAR UNDER APPE AL READS AS UNDER : 153C.ASSESSMENT OF INCOME OF ANY OTHER PERSON.- (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFI ED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERS ON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCO UNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESS ING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A : PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REF ERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUIS ITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A S HALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DO CUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON. [PROVIDED FURTHERTHAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, SPECIFY THE CLAS S OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE ASSESSING OFFICER S HALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOM E FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE EXCEPT I N CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED.] [(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 TH E DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT T O THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITIO N IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT 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 ISSUE D TO HIM, OR ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 12 (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 SERVE D AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS EXP IRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MA DE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND A SSESS OR REASSESS TOTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MA NNER PROVIDED IN SECTION 153A. 7.1. THE HONBLE DELHI HIGH COURT IN THE CASE OF PR . CIT VS. SARWAR AGENCY P. LTD., (2017) 397 ITR 400 (DELHI.) (HC) (S UPRA), CONSIDERING THE IDENTICAL ISSUE HELD AS UNDER : SUB-SECTION (1) OF SECTION 153C OF THE INCOME-TAX ACT, 1961 PROVIDES THAT THE ASSESSMENT OR REASSESSMENT OF THE INCOME OF THE 'OT HER PERSON' WOULD BE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THE FIRST PROVISO TO SUBSECTION (1) OF SECTION 153C FURTHER STATES THAT, IN CASE OF SUC H OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF SEARCH IN THE SECOND PROV ISO TO SECTION 153A(L) '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'. IN TERMS OF S ECTION 153A(1)(B) OF THE ACT. THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A OF THE ACT STATES THAT ASSESSMENT OR REASSESSM ENT RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THE SAID SUB-SECTION PENDING ON THE DATE OF INITIAT ION OF THE SEARCH UNDER SECTION 132, WOULD ABATE. IN CIT V. RRJ SECURITIES LTD. [20 16] 380 ITR 612 (DELHI), THE COURT HELD THAT IN THE CONTEXT OF PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH I N THE SECOND PROVISO TO SECTION 153A HAS TO BE CONSTRUED AS THE DATE ON WHICH THE A SSESSING OFFICER RECEIVES THE DOCUMENTS OR ASSETS FROM THE ASSESSING OFFICER OF T HE SEARCHED PERSON, THAT FURTHER PROCEEDINGS, BY VIRTUE OF SECTION 153(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REF ERENCE TO THE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW' THAT THE SIX ASSESSM ENT YEARS FOR WHICH ASSESSMENTS OR REASSESSMENTS COULD BE MADE UNDER SECTION 153C O F THE ACT WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO THE DATE OF HANDING AVER OF ASSETS OR DOCUMENTS TO THE ASSESSING OFFICER OF THE ASSESSEE. ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 13 THE AMENDMENT IN SECTION 153C OF THE ACT BY THE FIN ANCE ACT, 2017 WITH EFFECT FROM APRIL 1, 2017 TO THE EFFECT THAT THE BLOCK PER IOD FOR THE PERSON IN RESPECT OF WHOM THE SEARCH WAS CONDUCTED AS WELL AS THE 'OTHER PERSON' WOULD BE THE SAME SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE YEAR OF SEARCH IS PROSPECTIVE. A SEARCH UNDER SECTION 132 OF THE INCOME-TAX ACT, 1 961 TOOK PLACE ON NOVEMBER 11,2010 IN THE T GROUP OF CASES. THE DOCUMENTS PERT AINING TO THE ASSESSEE WERE FORWARDEDALONG WITH A SATISFACTION NOTE BY THE ASSE SSING OFFICER OF THE PARTY IN RESPECT OF WHICH THE SEARCH WAS CONDUCTED TO THE AS SESSING OFFICER OF THE*ASSESSEE ON JANUARY 3, 2013. THE ASSESSING OFFI CER OF THE ASSESSEE ISSUED NOTICE TO THE ASSESSEE UNDER SECTION 153C OF THE AC T ON JANUARY 4,2013 FOR THE ASSESSMENT YEAR 2006-07. THE TRIBUNAL HELD THAT THE NOTICE ISSUED TO THE ASSESSEE UNDER SECTION 153C OF THE ACT FOR THE ASSESSMENT YE AR 2006-07, WAS WITHOUT JURISDICTION SINCE THE ASSESSMENT YEAR WAS BEYOND T HE PURVIEW OF ISSUANCE OF NOTICE IN TERMS OF THE PROVISION UNDER SECTION 153C OF THE ACT. ON APPEAL: HELD ACCORDINGLY, DISMISSING THE APPEAL, THAT THE T RIBUNAL WAS JUSTIFIED IN HOLDING THAT THE NOTICE ISSUED TO THE ASSESSEE UNDER SECTIO N 153C OF THE ACT FOR THE ASSESSMENT YEAR 2006-07 WAS WITHOUT JURISDICTION SI NCE THE ASSESSMENT YEAR WAS BEYOND THE PURVIEW OF ISSUANCE OF NOTICE IN TERMS O F THE PROVISION. 7.2. THE ITAT, DELHI, B-BENCH IN THE CASE OF ACIT, C.C.-2, NEW DELHI VS. EMPIRE CASTING PVT. LTD., NEW DELHI (SUPRA), HELD IN PARAS 5 AND 5.1 AS UNDER: 5. WE HAVE HEARD THE RIVAL SUBMISSION ON THIS ISS UE AND ALSO PERUSED THE JUDGMENT DATED 30TH OCTOBER, 2015 OF THE HON'BLE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RRJ SECURITIES IN ITA NO. 164/2015 A ND ITA NO. 175 TO 177/2015. FOR READY REFERENCE, THE RELEVANT PARA OF THE JUDGM ENT IS REPRODUCED AS UNDER: '24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVIS O TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH UNDER THE SECON D PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTRUED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE ASSESSEE (BEING THE PERSON OTHER THAN THE ONE SEARC HED) TO THE AO HAVING JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER PROCEEDINGS, B Y VIRTUE OF SECTION 153C(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 15 3A OF THE ACT AND THE REFERENCE TO THE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS TH E REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSESSME NT YEARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE UNDER SECTI ON 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE. IN THIS CASE, IT WOULD BE T HE DATE OF THE RECORDING OF SATISFACTION UNDER SECTION 153C OF THE ACT, I.E., 8TH SEPTEMBER, 2010. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF ASSESSMENT YEAR 2003-04 AND 2004 -05 WOULD BE BEYOND THE PERIOD OF ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 14 SIX ASSESSMENT YEARS AS RECKONED WITH REFERENCE TO THE DATE OF RECORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. IT IS CONTENDED B Y THE REVENUE THAT THE RELEVANT SIX ASSESSMENT YEARS WOULD BE THE ASSESSMENT YEARS PRIO R TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED . IF THIS INTERPRETATION AS CANVASSED BY THE REVENUE IS ACCEPTED, IT WOULD MEAN THAT WHER EAS IN CASE OF A PERSON SEARCHED, ASSESSMENTS IN RELATION TO SIX PREVIOUS YEARS PRECE DING THE YEAR IN WHICH THE SEARCH TAKES PLACE CAN BE REOPENED BUT IN CASE OF ANY OTHE R PERSON, WHO IS NOT SEARCHED BUT HIS ASSETS ARE SEIZED FROM THE SEARCHED PERSON, THE PER IOD FOR WHICH THE ASSESSMENTS COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEARS. THIS IS SO BECAUSE THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS OF A PERSON, OTHER THAN THE SEARCHED PERSON, TO THE AO WOULD BE SUBSEQUENT TO THE DATE OF THE SEARCH. T HIS, IN OUR VIEW, WOULD BE CONTRARY TO THE SCHEME OF SECTION 153C(1) OF THE ACT, WHICH CONSTRUES THE DATE OF RECEIPT OF ASSETS AND DOCUMENTS BY THE AO OF THE ASSESSEE (OTHER THAN ONE SEARCHED) AS THE DATE OF THE SEARCH ON THE ASSESSEE. THE RATIONALE APPEARS TO BE THAT WHEREAS IN THE CASE OF A SEARCHED PERSON THE AO OF THE SEARCHED PERSON ASSUM ES POSSESSION OF SEIZED ASSETS/DOCUMENTS ON SEARCH OF THE ASSESSEE; THE SEI ZED ASSETS/DOCUMENTS BELONGING TO A PERSON OTHER THAN A SEARCHED PERSON COME INTO POSSE SSION OF THE AO OF THAT PERSON ONLY AFTER THE AO OF THE SEARCHED PERSON IS SATISFIED TH AT THE ASSETS/DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON. THUS, THE DATE ON WHICH THE AO OF THE PERSON OTHER THAN THE ONE SEARCHED ASSUMES THE POSSESSION OF THE SEIZED ASSET S WOULD BE THE RELEVANT DATE FOR APPLYING THE PROVISIONS OF SECTION 153A OF THE ACT. WE, THEREFORE, ACCEPT THE CONTENTION THAT IN ANY VIEW OF THE MATTER, ASSESSMENT FOR AY 2 003-04 AND AY 2004-05 WERE OUTSIDE THE SCOPE OF SECTION 153C OF THE ACT AND TH E AO HAD NO JURISDICTION TO MAKE AN ASSESSMENT OF THE ASSESSEE'S INCOME FOR THAT YEAR.' 5.1. THE FACT THAT SATISFACTION U/S 153C OF THE AC T IN THE CASE WAS RECORDED ON 2ND NOVEMBER, 2009, IS NOT DISPUTED BY BOTH THE PAR TIES. IN THE JUDGMENT CITED ABOVE, THE HON'BLE HIGH COURT HAS HELD THAT WHEN TH E ASSESSING OFFICER OF SEARCHED PERSON AND SUCH OTHER PERSON IN WHOSE CASE PROCEEDINGS UNDER SECTION ARE INITIATED, IS THE SAME OFFICER, THEN TH E DATE OF RECORDING OF SATISFACTION WOULD BE CONSTRUED AS THE DATE OF HAND ING OVER OF THE SEIZED RECORDS BY THE ASSESSING OFFICER OF SEARCHED PERSON TO THE ASSESSING OFFICER OF SUCH OTHER PERSON IN WHOSE CASE PROCEEDINGS UNDER SECTION 153C ARE INITIATED. SINCE THE HON'BLE HIGH COURT HAS ALREADY CONSTRUED THE RELEVA NT PROVISIONS, WE DO NOT CONCUR WITH THE ARGUMENTS ADVANCED BY THE LD. CIT D R ON THIS COUNT. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF THE HON'BLE HIGH CO URT IN RRJ SECURITIES (SUPRA) THE DATE OF HANDING OVER OF SEIZED MATERIAL/ RECORD BY THE ASSESSING OFFICER OF SEARCHED PARTY TO THE ASSESSING OFFICER OF THE ASSE SSEE WOULD BE 2ND NOVEMBER, 2009. FURTHER, FOLLOWING THE JUDGMENT, THE SIX ASSE SSMENT YEARS FOR WHICH ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 15 ASSESSMENT/RE-ASSESSMENT COULD BE MADE U/S 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED AS FROM THE REFERENCE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE ASSESSING OFFICER OF THE ASSESSEE. IN THE CASE IN HAND, IT WOULD BE THE DATE OF RECORDING SATISFACTION UNDER SECTION 153 OF THE ACT I.E. 2ND NOVEMBER, 2009, AND THEREFORE, SIX ASSESSMENT YEARS WHICH WOULD ELIGIBL E FOR ASSESSMENT/RE- ASSESSMENT WOULD COMMENCE FROM ASSESSMENT YEAR 2004 -05 TO ASSESSMENT YEAR 2009-10. THE ASSESSMENT/RE-ASSESSMENT IN RESPECT OF ASSESSMENT YEAR 2003-04 WOULD, THUS, BE BEYOND THE PERIOD OF SIX ASSESSMENT YEAR AS RECKONED WITH REFERENCE TO THE DATE OF SATISFACTION RECORDED BY T HE ASSESSING OFFICER OF THE SEARCHED PERSON. WE, THEREFORE, HOLD THAT THE LEARN ED CIT(A) WAS QUITE JUSTIFIED IN CONSIDERING THE ASSESSMENT FOR ASSESSMENT YEAR 2 003-04 AS OUTSIDE THE SCOPE OF SECTION 153C OF THE ACT, BEING BARRED BY LIMITATION AND WITHOUT JURISDICTION. ACCORDINGLY, THE IMPUGNED ASSESSMENT ORDER IS LIABL E TO BE QUASHED. WE DECIDE ACCORDINGLY. 7.3. THE ITAT, DELHI, C-BENCH, IN THE CASE OF PAVIT RA REALCON PVT. LTD., NEW DELHI VS. ACIT, C.C.32, NEW DELHI (SUPRA) UNDER THE SAME CIRCUMSTANCES HELD THAT ASSESSMENT COMPLETED UNDER SECTION 143(3 ) IS INVALID. THE RELEVANT PARA-16 OF THE ORDER IS REPRODUCED AS UNDER : 16. WE FIND THE YEAR FOR WHICH THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED U/S 143(3) IS FOR ASSESSMENT YEAR 2011-12. THIS YEA R FALLS WITHIN THE PERIOD OF SIX YEARS WHEN COUNTED FROM THE DATE OF RECORDIN G OF SATISFACTION NOTE U/S 153/153C OF THE I.T. ACT WHICH IS DEEMED DATE O F SEARCH. THE ACT HAS BEEN AMENDED RECENTLY BY THE FINANCE ACT, 2017 WITH PROSPECTIVE EFFECT I.E., FROM ASSESSMENT YEAR 2018-19. THUS, THE PERI OD IS SAME NOW ONLY FOR THE SEARCHED PARTIES AS WELL AS THE OTHER PERSON AS PER THE AMENDED PROVISIONS OF THE SAID SECTION. IN VIEW OF THE ABOV E, WE HOLD THAT THE ASSESSMENT COMPLETED U/S 143(3) IS INVALID. 8. IT IS NOT IN DISPUTE THAT SEARCH WAS CONDUCTED ON KRRISH GROUP OF CASES ON 09.11.2011. THE IMPOUNDED DOCUMENTS HAVE B EEN RECEIVED BY THE A.O. ON 29.08.2013. THE SATISFACTION UNDER SECTION 153C HAS BEEN RECORDED ON 03.10.2013. THE A.O. PASSED THE ASSESSMENT ORDER UN DER SECTION 153B(1)(B) OF THE I.T. ACT, CONSIDERING THE ASSESSMENT YEAR UNDER APPEAL I.E., A.Y. 2012- 2013 TO BE THE YEAR OF SEARCH. HOWEVER, THE FIRST P ROVISO TO SECTION 153C OF THE I.T. ACT PROVIDES THAT THE 06 ASSESSMENT YEARS FOR WHICH ASSESSMENTS OR RE-ASSESSMENTS COULD BE MADE UNDER SECTION 153C OF THE I.T. ACT, WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO THE DATE OF HANDING-OVER OF THE ASSETS OR DOCUMENTS TO THE A.O. OF THE ASSESSEE. THEREFORE , THE 06 ASSESSMENT YEARS ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 16 UNDER SECTION 153C OF I.T. ACT IN THE CASE OF ASSESSEE W OULD BE A.Y. 2008-2009 TO 2013-2014. THE A.O, THEREFORE, SHALL HAVE TO PAS S THE ASSESSMENT ORDER UNDER SECTION 153C OF THE I.T. ACT. HOWEVER, A.O. H AS NOT ISSUED ANY NOTICE UNDER SECTION 153C OF THE I.T. ACT BEFORE INITIATIN G THE PROCEEDINGS AGAINST THE ASSESSEE WHICH IS ALSO ADMITTED BY THE A.O. IN REPLY TO THE ASSESSEE UNDER RTI ACT. THE AMENDMENT IN SECTION 153C OF THE I.T. ACT BY THE FINANCE ACT, 2017, W.E.F. 01.04.2017 TO THE EFFECT THAT BLOCK PE RIOD FOR THE PERSON IN RESPECT OF WHOM THE SEARCH WAS CONDUCTED AS WELL AS THE OTHER PERSONWOULD BE THE SAME SIX ASSESSMENT YEAR IMMEDI ATELY PRECEDING THE YEAR OF SEARCH IS PROSPECTIVE IN NATURE. THE ISSUE HAVE BEEN DEALT IN DETAIL BY THE HONBLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF PR. CIT VS. SARWAR AGENCY P. LTD., (SUPRA) AND BY ITAT, DELHI, B-BENCH , IN THE CASE OF EMPIRE CASTING PVT. LTD., NEW DELHI VS. ACIT, C.C.2, NEW D ELHI AND PAVITRA REALCON PVT. LTD., NEW DELHI VS. ACIT, C.C.32, NEW DELHI (S UPRA). THE A.O, THEREFORE, SHOULD HAVE FRAMED THE ASSESSMENT UNDER SECTION 153 C OF THE I.T. ACT IN THE CASE OF THE ASSESSEE AND AT THE TIME OF INITIATING THE PROCEEDING AGAINST THE ASSESSEE, SHOULD HAVE ISSUED NOTICE UNDER SECTION 1 53C OF THE I.T. ACT WHICH HAVE NOT BEEN DONE IN THIS CASE. THE ISSUE OF NOTIC E UNDER SECTION 153C IS MANDATORY AND A CONDITION PRECEDENT FOR TAKING ACTI ON AGAINST THE ASSESSEE UNDER SECTION 153C OF THE I.T. ACT. THE ASSESSMENT ORDER, THEREFORE, VITIATE, VOID, ILLEGAL AND BAD IN LAW AND CANNOT BE SUSTAINE D. THE CONTENTIONS OF THE LD. D.R. HAVE ALREADY TAKEN CARE IN THE ABOVE JUDGMENTS. 9. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMST ANCES OF THE CASE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AN D QUASH THE SAME AND ALLOW THE ADDITIONAL GROUNDS OF APPEALS. RESULTANTL Y, ALL ADDITIONS STANDS DELETED. SINCE THE ASSESSMENT ORDER IS SET ASIDE ON LEGAL GROUNDS, THEREFORE, THERE IS NO NEED TO DECIDE THE ADDITION ON MERIT WH ICH HAS BEEN LEFT WITH ACADEMIC DISCUSSION ONLY. 10. IN THE RESULT, ITA.NO.504/DEL./2013 OF THE ASSESSEE IS ALLOWED. ITA.NO.503/DEL./2015 SHRI RANJAN GUPTA A.Y. 2012-2 013 11. IN THIS APPEAL, THE FACTS AND ISSUE IS IDENTIC AL. THE ASSESSEE ALSO MOVED FOR ADMISSION OF THE ADDITIONAL GROUNDS AS HA VE BEEN CONSIDERED IN THE CASE OF M/S. BNB INVESTMENT AND PROPERTIES LTD. FOL LOWING THE REASONS FOR DECISION IN THE CASE OF M/S. BNB INVESTMENT AND PRO PERTIES LTD., (SUPRA), WE ADMIT THE ADDITIONAL GROUNDS OF APPEAL, SET ASIDE T HE ORDERS OF THE ACIT VS. MAPSA TAPES PVT. LTD./ I.T.A.NOS.1216 & 12 17/DEL/2017/A.YS.2008-09 & 200-10 17 AUTHORITIES BELOW AND QUASH THE SAME. RESULTANTLY, DELETE THE ENTIRE ADDITION. 12. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 13. TO SUM-UP, BOTH THE APPEALS OF THE ASSESSEES ARE ALL OWED.' ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 27 TH JUNE, 2018 7. IN VIEW OF THE ABOVE, IT IS CLEAR THAT LD. CIT(A) CORRECTLY QUASH THE ASSESSMENT ORDERS U/S 153C TO BE NULL AND VOID. NO INFIRMITY HAS BEEN POINTED OUT IN THE ORDER OF LD. CIT(A). THEREFORE, THERE IS NO MERIT IN BOTH THE APPEALS OF REVENUE. SAME ARE ACCORDINGLY DISMISSED. 8. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST FEBRUARY, 2020 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI.