Jasjit Singh, New Delhi V. ACIT, New Delhi

ITA 1436/DEL/2012

• Counselvise Citation: 143620114 RSA 2012
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Depreciation; Search and seizure; Document seized; Additional evidence; Documents seized
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER & SHRI I.C. SUDHIR, JUDICIAL MEMBER ITA NO. 1436/DEL/2012 ASSESSMENT YEAR: 2009-10 JASJIT SINGH, VS. ACIT, 29/56, PUNJABI BAGH WEST, CENTRAL CIRCLE-11, NEW DELHI. NEW DELHI. ABHPS1536P (APPELLANT) (RESPONDENT) & ITA NO. 1707/DEL/2012 ASSESSMENT YEAR: 2009-10 ACIT VS. JASJIT SINGH, CENTRAL CIRCLE 11, 29/56, PUNJABI BAGH WEST, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PRAKASH CHAN D YADAV, ADV. & SH. SACHIN JAIN, CA RESPONDENT BY : MS. SULEKHA VERMA, DR ORDER PER I.C. SUDHIR, J.M. IN THE APPEALS REFERRED BY THE ASSESSEE AGAINST T HE FIRST APPELLATE ORDER ON THE REGULAR GROUNDS THAT THE LD. CIT(A) HA S ERRED IN (I) SUSTAINING THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 54F, (II) NOT GIVING THE CREDIT OF TDS, AND (III) SUSTAINING THE TREATMENT OF EXPENSES INCURRED ON TELEPHONE, VEHICLE, DEPRECIATION AND CONVEYANCE TO THE EXTENT OF 15% AS PERSONAL IN NATURE. BESIDES, TWO MORE ADDITIONAL GROUNDS (NUMB ERED AS 4 AND 5) HAVE BEEN RAISED. VIDE ORDER DATED 01/05/2014 THE TRIBUNAL HAS ALLOWED ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 2 ADDITIONAL GROUND NUMBERED AS GROUND NO. 4 FOR THE ADJUDICATION. THIS ADDITIONAL GROUND READS AS UNDER: THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , AN ASSESSMENT ORDER PASSED BY THE LD. AO U/S 143(3) OF THE INCOME TAX ACT, 1961 IS ILLEGAL AND NON MAINTAINABLE SINCE THE SAME HAS TO BE PASSED U/S 153C AND NOT U/S 143(3) OF THE ACT. 2. SINCE THE ISSUE RAISED IN THE ABOVE ADDITIONAL G ROUND IS LEGAL IN NATURE AND GOES TO THE ROOT TO THE MATTER, WE PREFE RRED TO ADJUDICATE UPON IT FIRST. 3. HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY T HE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL A VAILABLE ON RECORD AND THE DECISIONS RELIED UPON. 4. THE FACTS IN BRIEFS ARE THAT THE ASSESSEE, AN IN DIVIDUAL IS DOING THE BUSINESS OF IMPORT AND EXPORT, PRIOR TO THE YEAR UN DER CONSIDERATION I.E. A.Y. 2009-10. THE ASSESSEE HAD BEEN FILING ITS RET URN OF INCOME WITH WARD 25(3) UNDER THE RESIDENT STATUS BUT FOR THE FI RST TIME HE FILED HIS RETURN OF INCOME UNDER THE STATUS OF NON RESIDENT INDIAN(NRI). A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE C ASE OF KOUTONES GROUP ON 19/02/2009. IT HAS BEEN ALLEGED THAT DOCU MENTS BELONGING TO ASSESSEE WERE FOUND IN THE SAID SEARCH. AS A RESU LT, THE ASSESSMENTS OF THE ASSESSEE WERE CENTRALIZED BY THE LD. CIT(A)-X O N 16/06/2009 AND JURISDICTION OF THE ASSESSEE WAS TRANSFERRED FROM W ARD 25(3) TO ACIT, CENTRAL CIRCLE XI, WHICH IS THE PRESENT AO. THE AO COMPLETED THE ASSESSMENT OF THE ASSESSMENT YEAR 2009-10 UNDER CON SIDERATION UNDER NORMAL PROVISIONS OF SECTION 143(3) TREATING THE YE AR 2009-10 AS THE YEAR OF SEARCH AND REOPENED THE ASSESSMENTS FOR THE ASSE SSMENT YEARS OF 2008-09 TO 2003-04. AGGRIEVED WITH THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) WHO HAS ALLO WED THE APPEAL PARTLY. STILL AGGRIEVED WITH THE ACTION OF THE LD. CIT(A) T HE ASSESSEE HAS FILED ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 3 PRESENT APPEAL BEFORE THE TRIBUNAL RAISING THE ADDI TIONAL GROUND IN QUESTION, BESIDES THREE REGULAR GROUNDS. 5. IN SUPPORT OF THE ISSUE RAISED IN THE ADDITIONAL GROUND, THE LD. AR SUBMITTED THAT PROVISIONS U/S 153C(1) SPEAKS THAT A SSESSMENT OR REASSESSMENT OF INCOME OF ANY OTHER PERSON U/S 153C THAN THE PERSON SEARCHED, WILL BE MADE IN ACCORDANCE WITH THE PROVI SIONS OF THE SECTION 153A. SECTION 153A(1) CLEARLY SUGGEST THAT THE AO WILL ISSUE NOTICE CALLING FOR THE RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED AND ASSESSED OR REASSE SSED THE TOTAL INCOME OF THE ASSESSEE. THUS, IT IS EVIDENT FROM T HIS PROVISION THAT IN THE SEARCH YEAR REGULAR ASSESSMENT HAS TO BE MADE AND I N THE PRECEDING SIX YEARS ACTION U/S 153C READ WITH SECTION 153A HAS TO BE TAKEN BY THE AO. THE LD. AR SUBMITTED THAT THE DOCUMENTS PERTAINING TO THE ASSESSEE WERE HANDED OVER TO THE AO AFTER 15/16/06/2009 (THE DATE OF CENTRALIZATION OF THE CASE) AND AS PER THE PROVISIONS OF SECTION 153C PROVISO 1, THE DATE OF SEARCH WOULD BE 15/06/2009 WHICH FALLS UNDER A.Y. 2 010-11 AND THE SIX PREVIOUS YEARS WOULD BE FROM A.Y. 2004-05 TO 2009-1 0 AND NOT FROM A.Y. 2003-04 TO 2008-09 AS DONE BY THE AO. IN THIS REGA RD HE PLACED RELIANCE ON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN T HE CASE OF V.K. FISCAL IN ITA NOS. 5460 TO 5466/2012 AND IN THE CASE OF DSL P ROPERTIES ITA NO. 1344/DEL/2012. 6. THE LD. AR ALSO EMPHASIZED THE DECISION OF HONB LE JURISDICTIONAL DELHI HIGH COURT ON THE ISSUE IN THE CASE OF SSP AV IATION LIMITED VS. DCIT IN W.P.C. NO. 309/2011 DATED 29/03/2012 (PARA NOS. 13, 14 & 15). 7. TAKING STRENGTH FROM THE RATIO LAID DOWN IN THE ABOVE CITED DECISIONS THE LD. AR SUBMITTED THAT PROVISO 1 TO SE CTION 153C IS ONLY IN RESPECT OF ABATEMENT OF PROCEEDINGS AND NOT IN RESP ECT OF ASSESSMENT OF ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 4 PROCEEDINGS. HE POINTED OUT THAT IN THE CASE OF AS SESSEE THERE WAS NO PENDING PROCEEDINGS AS ON THE DATE OF SEARCH HENCE THERE WAS NO QUESTION OF ABATEMENT OF PROCEEDINGS. 8. THE LD. AR SUBMITTED FURTHER THAT WHILE INTERPRE TING THE PROVISIONS LAID DOWN U/S 153A AND 153C THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DSL PROPERTIES (SUPRA) HAS HELD THAT HARMONIOUS INTERPRETATION SHOULD BE GIVEN TO THE PROVISIONS OF CLAUSE (B) AND PROVIS O TO SECTION 153C OF THE ACT. HE SUBMITTED THAT BY VIRTUE OF FIRST PROVISO, EMBEDDED WITH SECTION 153C, THE DATE OF HANDING OVER THE DOCUMENTS WOULD BECOME THE DATE OF SEARCH IN THE CASE OF OTHER PERSON AND PREVIOUS SIX YEARS PERIOD WOULD HAVE TO BE RECKONED FROM THIS DATE WHICH MEANS THE RELEVANT ASSESSMENT YEAR OF SEARCH IN THE CASE OF ASSESSEE WOULD BE 16/ 06/2009 WHICH FALLS UNDER A.Y. 2010-11 AND NOT A.Y. 2009-10 AND SIX PRE VIOUS YEARS WOULD BE 2009-10 TO 2003-04. 9. THE LD. AR SUBMITTED THAT AS PER THE SUB-RULE 5 OF RULE 6F IT RULES, 1962, EVERY ASSESSEE UNDER THE INCOME TAX HA S TO MAINTAIN THE ACCOUNT OF SIX PREVIOUS YEARS FOR THE PURPOSE OF IN COME TAX. NOW SUPPOSING A SEARCH IS CONDUCTED IN ONE YEAR AND DOC UMENTS OF THE OTHER PERSON ARE HANDED OVER TO THE AO OF OTHER PERSON OR TO THE AO WITH WHOM JURISDICTION IS CENTRALIZED, AFTER TWO YEARS F ROM THE DATE OF SEARCH, THEN FOR WHICH SIX YEARS THE OTHER PERSON WOULD SHO W HIS ACCOUNTS, WHETHER FOR THE YEARS WHICH ARE APPLICABLE FOR SEAR CHED PERSON OR FOR THOSE YEARS WHICH ARE GOVERNED BY THE PROVISO. HE SUBMITTED THAT OBVIOUSLY FOR THOSE YEARS WHICH ARE GOVERNED BY THE PROVISO, BECAUSE THE INCOME TAX RULES SAY SO. AND THAT IS WHY THE LEGIS LATURE IN THEIR WISDOM BY VIRTUE OF PROVISO HAS SUBSTITUTED THE DATE OF SE ARCH WITH THE DATE OF RECEIVING OF THE DOCUMENT PERTAINING TO SUCH OTHER PERSON. OTHERWISE PROVISIONS OF RULE 6F WOULD BE REDUNDANT AND THE AO CAN ASK FOR RECORDS OF THOSE YEARS ALSO FOR WHICH AN ASSESSEE IS NOT OB LIGED TO MAINTAIN ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 5 RECORDS. IN THE PRESENT CASE HOWEVER, THE AO FRAMI NG THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION (2009-10) AS A YEAR OF SEARCH HAS REOPENED THE ASSESSMENTS OF A.Y. 2008-09 TO A.Y. 2003-04. T HEREFORE, THE ASSESSMENT FRAMED BY THE AO U/S 143(3) OF THE ACT F OR THE YEAR UNDER CONSIDERATION IS VOID AB INITIO AS THE SAME HAS BEEN FRAMED WITHOUT FOLLOWING THE MANDATORY PROVISIONS OF SECTION 153C OF THE ACT. IN OTHER WORDS, IN THE PRESENT CASE THE AO HAS OVERLOOKED TH E PROVISIONS OF PROVISO TO SECTION 153C AND PRESUMED THAT THE DEEME D DATE OF SEARCH IN THE CASE OF ASSESSEE WOULD BE 19/02/2009 WHICH FALL S UNDER A.Y. 2009- 10 AND HENCE WITHOUT ISSUING ANY NOTICE OF SECTION 153C AND WITHOUT RECORDING ANY SATISFACTION THE AO HAS FRAMED THE AS SESSMENT UNDER THE PROVISIONS OF SECTION 143(3) OF THE ACT. 10. THE LD. AR SUBMITTED FURTHER THAT IF WE APPLY T HE MANDATE OF THE PROVISO OF SECTION 153C READ WITH 153A(1) AND PRINC IPLE OF LAW AS LAID DOWN BY THE TRIBUNAL IN THE CASE OF DSL PROPERTIES LTD. (SUPRA) THEN THE SIX YEARS WHICH WERE TO BE COVERED ARE ASSESSMENT Y EARS 2009-10, 2008- 09, 2007-08, 2006-07, 2005-06 AND 2004-05 AND NOT 2 008-09 TO 2003-04. HE SUBMITTED THAT PROVISIONS OF SECTION 153C ARE MA NDATORY HENCE NOTICE OF SECTION 153C AND RECORDING OF SATISFACTION IS SINE QUA NON FOR ASSUMING JURISDICTION OF A YEAR WHICH AS PER THE PROVISIONS OF PROVISO FALLS UNDER THE PERIOD OF SIX YEARS AS HELD BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF JINDAL STAINLESS LIMITED VS. ACIT, 120 ITD 301 (DEL.). WITH THE ASSISTANCE OF THESE SUBMISSIONS THE LD. AR PRAYED T HAT THE ASSESSMENT SHOULD BE DECLARED AS NULL AND VOID, IN THE RESULT, THE APPEAL OF THE ASSESSEE SHOULD BE ALLOWED AND APPEAL OF THE REVENU E SHOULD BE DISMISSED. 11. LD. CIT(DR) ON THE OTHER HAND, SUBMITTED THAT R EFERENCE OF PROVISO 1 TO SECTION 153C IS ONLY IN RELATION TO SECOND PRO VISO TO SUB-SECTION (1) OF SECTION 153A WHICH SPEAKS ABOUT THE ABATEMENT OF TH E PENDING ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 6 PROCEEDINGS OF SIX ASSESSMENT YEARS AND NOT REGARDI NG THE ASSESSMENT OF THE PRECEDING SIX ASSESSMENT YEARS WHICH WILL BE THE SAME AS IN SECTION 153A AS WELL AS IN SECTION 153C OF THE ACT. IN SUPPORT SHE PLACED RELIANCE ON THE JUDGMENT DATED 29/03/2012 OF THE HO NBLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. VS. DCIT, W. P.C. NO. 309/2011. SHE SUBMITTED FURTHER THAT THE DELHI BENCH OF THE T RIBUNAL IN THE CASE OF V.K. FISCAL SERVICES PVT. LTD., ITA NOS. 5460 TO 54 65/DEL/2012 DATED 27/11/2013 HAS FOLLOWED ITS DECISION DATED 22/03/20 13 IN THE CASE OF DSL PROPERTIES P. LTD. ITA NO. 11349/D/2012 AND THE ORD ER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. V S. DCIT (SUPRA) PRONOUNCED ON 29/03/2012, SHOULD HAVE BEEN FOLLOWED . SHE FURTHER SUBMITTED THAT THE APPEAL PREFERRED BY THE REVENUE IN THE CASE OF DSL PROPERTIES P. LTD. (SUPRA) HAS BEEN ADMITTED BY THE HONBLE DELHI HIGH COURT. 12. THE LD. AR REJOINED WITH THE SUBMISSION THAT WH ILE ADMITTING THE APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER O F THE TRIBUNAL IN THE CASE OF DSL PROPERTIES P. LTD. (SUPRA), THE HONBLE HIGH COURT HAS NOT STAYED THE OPERATION OF THE DECISION OF THE TRIBUNA L IN THE SAID CASE, HENCE THE TRIBUNAL IS BOUND TO FOLLOW ITS EARLIER O RDER ON AN IDENTICAL ISSUE. 13. WE FIND THAT THERE IS NO DISPUTE ON THE RELEVAN T FACTS OF THE CASE THAT SEARCH AND SEIZURE OPERATION U/S 132 OF THE AC T IN THE CASE OF KOUTONS WAS CONDUCTED ON 19/02/2009 WHICH IS RELEVA NT TO THE F.Y. 01/04/2008 TO 31/03/2009 AND THE RELEVANT ASSESSMEN T YEAR IS 2009-10. IT IS ALSO UNDISPUTED THAT THE CASE OF THE ASSESSEE WAS CENTRALIZED BY LD. CIT U/S 127 OF THE ACT AND THE JURISDICTION OF THE ASSESSEE FROM WARD 25(3) TO CENTRAL CIRCLE 11 WAS TRANSFERRED ON 16/06 /2009, HENCE PREVIOUS YEAR WOULD BE 01/04/2009 TO 31/03/2010 AND THE A.Y. WILL BE 2010-11. ON THE BASIS OF THESE FACTS THE CONTENTION OF THE A SSESSEE IN THE ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 7 ADDITIONAL GROUND IS THAT THE ASSESSMENT ORDER FRAM ED U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR IN QUESTION IS NOT VALI D AND NOT MAINTAINABLE. AS PER HIM, THE DATE OF SEARCH IN THE CASE OF THE P RESENT ASSESSEE WOULD BE THE DATE I.E. 16/06/2009 WHEN DOCUMENTS BELONGIN G TO THE ASSESSEE (FOUND DURING THE COURSE OF SEARCH) WERE HANDED OVE R AND JURISDICTION FOR FRAMING THE ASSESSMENT WAS TRANSFERRED TO THE AO HA VING JURISDICTION FOR THE ASSESSMENT ON THE ASSESSEE. TAKING INTO ACCOUN T THE DATE 16/06/2009 AS DATE OF SEARCH IN THE CASE OF THE ASS ESSEE, THE CONTENTION OF THE LD. AR REMAINED THAT THE SEARCH YEAR IN THE CASE OF ASSESSEE WOULD BE A.Y. 2010-11 AND SIX PREVIOUS ASSESSMENT YEARS W OULD BE 2009-10 TO 2003-04. IN OTHER WORDS, THE REGULAR ASSESSMENT U/ S 143(3) OF THE ACT IN THE PRESENT CASE SHOULD HAVE BEEN FRAMED FOR THE AS SESSMENT YEAR 2010- 11 AND THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION SHOULD HAVE BEEN FRAMED U/S 153C READ WITH 143(3) O F THE I.T. ACT. IN SUPPORT THE ABOVE CITED DECISIONS WERE RELIED UPON BY THE LD. AR. 14. THE CONTENTION OF THE LD. CIT(DR) ON THE CONTRA RY REMAINED THAT THE REFERENCE OF PROVISO 1 OF SECTION 153C IS ONLY IN RELATION TO THE SECOND PROVISO TO SUB-SECTION 1 OF SECTION 153A WHICH SPEA KS ABOUT THE ABATEMENT OF THE PENDING PROCEEDINGS OF SIX ASSESSM ENT YEARS AND NOT REGARDING THE ASSESSMENT OF THE PRECEDING SIX ASSES SMENT YEARS WHICH WILL BE THE SAME AS IN SECTION 153A AS WELL AS IN S ECTION 153C OF THE ACT. IN THIS REGARD SHE PLACED RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. VS. DCIT (SU PRA). 15. WE FIND THAT AN IDENTICAL ISSUE HAS BEEN DECIDE D BY DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DSL PROPERTIES P. LT D. (SUPRA) IN FAVOUR OF THE ASSESSEE ACCEPTING THE SIMILAR CONTENTION OF TH E ASSESSEE. SIMILAR VIEW HAS BEEN EXPRESSED BY THE DELHI BENCH OF THE T RIBUNAL IN THE CASE OF V.K. FISCAL (SUPRA) HOLDING THAT THE DATE OF REC EIVING OF THE SEIZED DOCUMENTS WOULD BECOME THE DATE OF SEARCH AND SIX Y EARS PERIOD WOULD ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 8 BE RECKONED FROM THIS DATE. FOR A READY REFERENCE PARA NO. 19, 21, 22 & 23 OF THE DECISION OF DELHI BENCH OF THE TRIBUNAL I N THE CASE OF DSL PROPERTIES (SUPRA) ARE BEING REPRODUCED HEREUNDER: 19. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. PROVISO TO SECTION 153C READS AS UNDER: PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE RE FERENCE TO THE DATE OF INITIATION OF THE SEARCH U/S 132 OR MAKING OF REQUISITION U/S 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITIONED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSO N. 20. THE ABOVE PROVISO REFERS TO SECOND PROVISO TO S UB-SECTION (1) OF SECTION 153A. THAT SECTION 153A(1) AND ITS FIRST AND SECOND PROVISIONS READ AS UNDER: - 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED I N SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INIT IATED U/S 132 OR BOOKS OF ACCOUNT, SECTION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE AO SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNI SH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETT ING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED U/S 139; (B) ASSE3SS OR REASSESS THE TOTAL INCOME OR SIX ASSESSM ENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE AO SHALL ASSESS OR REASSESS THE T OTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS [SUB-SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S 132 OR MAK ING OF REQUISITION U/S 132A, AS THE CASE MAY BE, SHALL ABA TE. 21. FROM THE ABOVE, IT IS EVIDENT THAT AS PER CLAUS E (B) OF SUB- SECTION (1) OF SECTION 153A AND SECOND PROVISO, THE AO CAN BE ISSUE NOTICE FOR ASSESSMENT OR REASSESSMENT OF TOTA L SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED. AS PER PROVISO TO SECTION 153C, THE DATE OF SEARCH IS TO BE SUBSTITUT ED BY THE DATE OF ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 9 RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSE TS SEIZED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. LD. DR HAS STATED THAT SINCE THE AO OF THE PERSON SEARCHED AND THE AO OF SUCH OTHER PERSON WAS THE SAME, NO HANDING OVER OR TAKIN G OVER OF THE DOCUMENT WAS REQUIRED. THAT SECTION 153C(1) AND IT S PROVISO HAVE TO BE READ TOGETHER IN A HARMONIOUS MANNER. W HILE INTERPRETING SECTION 153C, WE HAVE ALREADY HELD THA T FOR INITIATING VALID JURISDICTION U/S 153C, EVEN IF THE AO OF THE PERSON SEARCHED AND T HE AO OF SUCH OTHER PERSON IS THE SAME, HE HA S TO FIRST RECORD THE SATISFACTION IN THE FILE OF THE PERSON SEARCHED AND THEREAFTER, SUCH NOTE ALONGWITH THE SEIZED DOCUMENT/BOOKS OF AC COUNT IS TO BE PLACED IN THE FILE OF SUCH OTHER PERSON. THE DATE ON WHICH THIS EXERCISE IS DONE WOULD BE CONSIDERED AS THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENT BY THE AO HAVING JURIS DICTION OVER SUCH OTHER PERSON. THOUGH WHILE EXAMINING THE FACT S OF THE ASSESSEES CASE WE HAVE ARRIVED AT THE CONCLUSION T HAT NO SUCH EXERCISE HAS BEEN PROPERLY CARRIED OUT AND, THEREFO RE, INITIATION OF PROCEEDINGS U/S 153C ITSELF IS INVALID, HOWEVER, SI NCE BOTH THE PARTIES HAVE ARGUED THE ISSUE OF PERIOD OF LIMITATI ON ALSO, WE DEEM IT PROPER TO ADJUDICATE THE SAME. SINCE IN THIS CA SE SATISFACTION IS RECORDED ON 21 ST JUNE, 2010 AND NOTICE U/S 153C IS ALSO ISSUED ON THE SAME DATE, THEN ONLY CONCLUSION THAT CAN BE DRA WN IS THAT THE AO OF SUCH OTHER PERSON HAS TAKEN OVER THE POSSESSI ON OF SEIZED DOCUMENT ON 21 ST JUNE, 2010. ACCORDINGLY, AS PER SECTION 153(1), THE AO CAN ISSUE THE NOTICE FOR THE PREVIOUS YEAR I N WHICH SEARCH IS CONDUCTED (FOR THE PURPOSE OF SECTION 153C THE D OCUMENT IS HANDED OVER) AND SIX ASSESSMENT YEARS PRECEDING SUC H ASSESSMENT YEAR. NOW, IN THIS CASE, THE PREVIOUS YEAR IN WHIC H THE DOCUMENT IS HANDED OVER IS 1 ST APRIL, 2010 TO 31 ST MARCH, 2011. THE ASSESSMENT YEAR WOULD BE A.Y. 2011-12. SIX PRECEDI NG PREVIOUS YEARS AND RELEVANT ASSESSMENT YEAR WOULD BE AS UNDE R: PREVIOUS YEAR ASSESSMENT YEAR 1.4.2009 TO 31.3.2010 2010-11 1.4.2008 TO 31.3.2009 2009-10 1.4.2007 TO 31.3.2008 2008-09 1.4.2006 TO 31.3.2007 2007-08 1.4.2005 TO 31.3.2006 2006-07 1.4.2004 TO 31.3.2005 2005-06 22. THE AO HAS ISSUED NOTICE U/S 153C FOR A.Y. 2004 -05 WHICH IS CLEARLY BARRED BY LIMITATION. THEREFORE, ISSUE OF NOTICE U/S 153C ISSUED BY THE REVENUE CANNOT BE SUSTAINED ON BOTH T HE ABOVE COUNTS, I.E., IT IS LEGALLY NOT VALID AS CONDITIONS LAID DOWN U/S 153C HAS NOT BEEN FULFILLED AND IT IS BARRED BY LIMITATI ON. IN VIEW OF THE ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 10 ABOVE, WE QUASH THE NOTICE ISSUE DU/S 153C AND CONS EQUENTLY, THE ASSESSMENT COMPLETED IN PURSUANCE TO SUCH NOTICE, I S ALSO QUASHED. 23. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER ITSE LF, THE ADDITIONS CHALLENGED BY THE ASSESSEE BY WAY OF OTHE R GROUNDS OF APPEAL DO NOT SURVIVE, AND, THEREFORE, DO NOT REQUI RE ANY ADJUDICATION. 16. WE THUS, FIND THAT THE ISSUE RAISED IN THE ADDI TIONAL GROUND HAS BEEN ANSWERED IN FAVOUR OF THE ASSESSEE, BY THE COO RDINATE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DSL PROPERTIES (SUPR A). 17. SO FAR AS DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. VS. DCIT (SUPRA) RELIED UPON BY THE L D. CIT(DR) IS CONCERNED, WE FIND THAT IT IS NOT HELPFUL TO THE RE VENUE AS IN THAT CASE ALSO IN PARA NO. 14 OF THE JUDGMENT IT HAS BEEN HELD AS UNDER: 14. NOW THERE CAN BE A SITUATION WHEN DURING THE S EARCH CONDUCTED ON ONE PERSON U/S 132, SOME DOCUMENTS OR VALUABLE ASSETS OR BOOKS OF ACCOUNT BELONGING TO SOME OTHER PERSON, IN WHOSE CASE THE SEARCH IS NOT CONDUCTED, MAY BE FOUN D. IN SUCH CASE, THE AO HAS TO FIRST BE SATISFIED U/S 153C, WH ICH PROVIDES FOR THE ASSESSMENT OF INCOME OF ANY OTHER PERSON, I.E., ANY OTHER PERSON WHO IS NOT COVERED BY THE SEARCH, THAT THE B OOKS OF ACCOUNT OR OTHER VALUABLE ARTICLE OR DOCUMENT BELONGS TO TH E OTHER PERSON (PERSON OTHER THAN THE ONE SEARCHED). HE SHALL HAN D OVER THE VALUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENT TO THE AO HAVING JURISDICTION OVER THE OTHER PERSON. THEREAFTER, TH E AO HAVING JURISDICTION OVER THE OTHER PERSON HAS TO PROCEED A GAINST HIM AND ISSUE NOTICE TO THAT PER5SON IN ORDER TO ASSESS OR REASSESS THE INCOME OF SUCH OTHER PERSON IN THE MANNER CONTEMPLA TED BY THE PROVISIONS OF SECTION 153A. NOW A QUESTION MAY ARI SE AS TO THE APPLICABILITY OF THE SECOND PROVISO TO SECTION 153A IN THE CASE OF THE OTHER PERSON, IN ORDER TO EXAMINE THE QUESTION OF PENDING PROCEEDINGS WHICH HAVE TO ABATE. IN THE CASE OF TH E SEARCHED PERSON, THE DATE WITH REFERENCE TO WHICH THE PROCEE DINGS FOR ASSESSMENT OR REASSESSMENT OF ANY ASSESSMENT YEAR W ITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS SHALL ABATE, IS THE DATE OF INITIATION OF THE SEARCH U/S 132 OR THE REQUISITION U/S 132A. FOR INSTANCE, IN THE PRESENT CASE, WITH REFERENCE TO TH E PURI GROUP OF COMPANIES, SUCH DATE WILL BE 5.1.2009. HOWEVER, IN THE CASE OF THE OTHER PERSON, WHICH IN THE PRESENT CASE IS THE PETITIONER HEREIN, ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 11 SUCH DATE WILL BE THE DATE OF RECEIVING THE BOOKS O F ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITION BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. IN THE CASE O F THE OTHER PERSON, THE QUESTION OF PENDENCY AND ABATEMENT OF T HE PROCEEDINGS OF ASSESSMENT OR REASSESSMENT TO THE SI X ASSESSMENT YEARS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE . 18. IN VIEW OF THE ABOVE FINDING, THE ASSESSMENT FR AMED U/S 143(3) OF THE ACT FOR THE A.Y. 2009-10 IN THE PRESENT CASE IS NOT VALID. RESPECTFULLY FOLLOWING THE ABOVE CITED DECISIONS ON AN IDENTICAL ISSUE, THE ADDITIONAL GROUND NO. 4 IN THE PRESENT CASE IS DECIDED IN FAVO UR OF THE ASSESSEE AND IN THE RESULT THE ASSESSMENT ORDER IS QUASHED AS VO ID. 19. SINCE IN THE ABOVE FINDING ON THE ISSUE RAISED IN ADDITIONAL GROUND NO. 4 WE HAVE QUASHED THE ASSESSMENT ORDER ITSELF, THE ADDITIONS QUESTIONED BY THE ASSESSEE BY WAY OF OTHER GROUNDS OF THE APPEAL DO NOT SURVIVE AND, THEREFORE, DO NOT REQUIRE ANY ADJUDICA TION. 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ITA NO. 1707/D/2012 : 21. IN THIS APPEAL THE REVENUE HAS QUESTIONED THE F IRST APPELLATE ORDER ON THE RELIEF GIVEN TO THE ASSESSEE BY LD. CIT(A) A ND THE ADMISSION OF ADDITIONAL EVIDENCE ALLOWED BY HIM. 22. IN VIEW OF THE ABOVE FINDING HOLDING THE ASSESS MENT ORDER IN QUESTION AS INVALID, THE GROUNDS OF THE PRESENT APP EAL HAVE BECOME INFRUCTUOUS AND DO NOT NEED ANY ADJUDICATION. THE APPEAL IS ACCORDINGLY DISMISSED. 23. IN SUMMARY THE APPEAL PREFERRED BY THE ASSESSEE IS ALLOWED AND THAT FILED BY THE REVENUE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05/11/2014 SD/- SD/- (S.V. MEHROTRA) (I.C. SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05/11/2014 ITA NOS. 1436 & 1707/D/2012 JASJIT SINGH 12 *KAVITA, P.S. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR