Sachin A. Mehta, Kolkata V. D.C.I.T., Cir-13, Kolkata, Kolkata

ITA 1939/KOL/2008

• Counselvise Citation: 193923514 RSA 2008
• Duration Of Justice: 6 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 20-08-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 17-10-2008
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA LD
• Assessee Lawyers: A K TIBREWAL FCA LD
• Keywords: Search and seizure; Question of law
• Section: 147; 131; 148; 132; 139; 153A

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA ( ) , , BEFORE HON BLE SRI MAHAVIR SINGH, JM & HON BLE SRI SHAMIM YAHYA, AM I.T.A NO. 1 939 & 1940 /KOL/20 08 A.Y S 200 1 - 02 & 2003 - 04 SACHIN A. MEHTA VS. D.C.I.T, CIR - 43 /13 , KOLKATA PAN: A JPPM7857D [ APPELLANT ] [ R ESPONDENT ] APPELLANT BY : SHRI A .K. TIBREWAL, FCA, LD.AR RESPONDENT BY : SHRI VARINDER MEHTA, LD.CIT /SR.DR /DATE OF HEARING : 03 - 12 - 2014 /DATE OF PRONOUNCEMENT: 16 - 12 - 2014 / ORDER , SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER TH ESE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF T HE LD.CIT(A) PERTAINING TO ASSESSMENT YEAR S 200 1 - 02 AND 2003 - 04 RESPECTIVELY. SINCE THE ISSUES ARE CONNECTED, THESE APPEALS WERE HEARD TOGETHER AND THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ISSUE S RAISED IN B OTH THE APPEALS FOR THE ASSESSMENT YEARS 2001 - 02 AND 2003 - 04 ARE AS UNDER: - ITA NO.1939/KOL/08 A.Y 2001 - 02 (BY THE ASSESSEE) : - 1 . FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1,79,47,462/ - MADE BY THE AO CONSIDERING THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE ON ACCOUNT OF THE VALUE OF SEIZED PRECIOUS STONES. 2 . FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.6,9 8,880/ - MADE BY THE AO TREATING THE SAME AS UNEXPLAINED INCOME OF THE ASSESSEE ON ACCOUNT OF THE SEIZED CASH FROM THE PREMISES OF THE ASSESSEE. ITA NO.19 40 /KOL/08 A.Y 200 3 - 04 (BY THE ASSESSEE) : - 1 . FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1, 50,000/ - MADE BY THE AO BY WRONGLY ASSESSING THE ADVANCE RECEIVED ON SALE OF CAR AS UNDISCLOSED INCOME. ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 2 3. APART FROM THE ABOVE , THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS AND PRAYED BEFO RE US FOR ADMISSION OF THE SAME : - 4. ADDITIONAL GROUND AND THE PRAYER RAISED IN ITA NO S . 1939 & 1940 /K/08 A.Y 2001 - 02(BY THE ASSESSEE) ARE AS UNDER: - 2 ) THAT DUE TO INADVERTENCE THE FOLLOWING LEGAL GROUNDS WAS NOT TAKEN IN THE SAID APPEAL. A) THAT, IN T HIS CASE, THE SEARCH HAVING BEEN INITIATED AND ASSETS REQUISITIONED ON 28 TH FEBRUARY 2001 UNDER SEC. 132/SEC. 132A OF THE INCOME TAX ACT, 1961 I.E. BEFORE 31 ST MAY 2003, THE LD.ASSESSING OFFICER ERRED IN ASSUMING JURISDICTION UNDER SEC. 153A FOR ISSUE OF A NOTICE REQUIRING THE ASSESSEE TO FURNISH A RETURN OF INCOME UNDER THAT SECTION. B) THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER UNDER SEC. 143(3)/153A ON 28 TH DECEMBER 2006 IS WITHOUT JURISDICTION, ILLEGAL AND VOID AN - INITIO . 3) THAT THE APPELLANT FURTHER SUBMITS THAT ALL FACTS NECESSARY FOR ADJUDICATION OF THE AFORESAID ADDITIONAL GROUNDS ARE BORNE OUT BY RECORD OF THE ASSESSING OFFICER AND THE SAID GROUNDS GO TO THE ROOT OF THE MATTER AND GIVE RISE TO PURE QUESTION OF LAW REQUIRING NO NEW FACTS TO BE BROUGHT ON RECORD. 4) IT IS FURTHER SUBMITTED THAT IT HAS BEEN INTER - ALIA HELD BY THE BOMBAY HIGH COURT IN THE CASE OF B.R BAMASI VS. CIT [83 ITR 225] THAT THE ASSESSEE WOULD BE ENTITLED TO RAISE A NEW GROUND, PROVIDED IT WAS A GROUND OF LAW AND DID NOT NECESSITATE ANY FRESH EVIDENCE TO BE BROUGHT ON RECORD. IN THIS CONTEXT THE APPELLANT MAY ALSO BE PERMITTED TO REFER TO THE FOLLOWING DECISIONS OF THE HON BLE SUPREME COURT. A ) JUTE CORPORATION OF INDIA LTD VS. CIT 187 ITR 688] B ) NATIONAL THERMAL POWER CO. LTD VS. CIT [229 ITR 383] THE AFORESAID TWO DECISIONS HAVE BEEN FOLLOWED BY DIFFERENT HIGH COURTS AND THE TRIBUNALS THROUGH OUT THE COUNTRY. THE PETITIONER MAY BE PERMITTED TO REFER TO THE FOLLOWING DECISIONS: - A ) CIT VS. MOHD. IQBAL & ORS (1996) 221 ITR 481 (MP) B ) GORAKHPUR PETRO OILS LTD VS. CIT (2005) 95 TTJ 489 (ALL) TM) 5 ) IN VIEW OF WHAT HAS BEEN STATED HEREINABOVE THE APPELLANT CRAVES LEAVE OF THE HON BLE INCOME TAX APPELLATE TRIBUNAL, KOLKATA FOR ALLOWING THE APPELLANT TO TA KE THE AFORESAID ADDITIONAL GROUND IN THE APPEAL PENDING FOR ADJUDICATION BEFORE YOUR HONOUR. THE APPELLANT, THEREFORE, RESPECTFULLY PRAYS THAT YOUR HONOURS WOULD BE GRACIOUSLY PLEASED TO: A ) A DMIT THE AFORESAID ADDITIONAL GROUND; B ) A DJUDICATE THE SAME IN THE INTEREST OF JUSTICE; AND C ) P ASS SUCH ORDER OR ORDERS AS YOUR HONOURS MAY DEEM FIT AND ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 3 PROPER. 5 . WE HAVE HEARD BOTH THE LD. COUNSEL AND PERUSED THE RECORD . ON THE ISSUE OF ADMISSION OF ADDITIONAL GROUNDS FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE IS ASSAILING THE JURISDICTION ASSUMED BY THE AO U/S. 153A OF THE ACT. THE ISSUE INVOLVED IS PURELY A LEGAL MATTER. ON THE AN VIL OF HON BLE APEX COURT S DECISION IN THE CASE OF NTPC (SUPRA) , WE ADMIT THE ADDITIONAL GROUNDS AND ADJUDICATE TH E SAME. 6 . THE FACTS PERTAINING TO ASS UMPTION OF JURISDICTION IN THIS CASE A S C U LLED OUT FROM THE ASSESSMENT ORDER OF THE AO FOR THE ASSESSMENT YEAR 2001 - 02 ARE THAT A SEARCH WAS CONDUCTED BY THE COMMISSIONER OF CUSTOM, WEST BENGAL, KOLKATA ON 16 - 09 - 2000 IN THE PREMISES OF SRI SACHIN A MEHTA AT 14, MUKTARAM BABU STREET, KOLKATA - 7 , WHICH WAS HIS BUSINESS UNIT FOR POLISHING PRECIOUS AND SEMI PRECIOUS STONES. THERE WAS A SEIZURE OF PRECIOUS AND SEMI PRECIOUS STONES VALUING OF RS.1,79,47,462/ - AND CAS H OF RS.6,98,880/ - FROM THE SAID PREMISES. THEREAFTER, CUSTOM AUTHORITIES INFORMED THE I.T DEPARTMENT VIDE THEIR LETTER NO.VIII(10)/127 /P&I /WB/2000/453( C ) DATED 16 - 10 - 2000. THE INCOME - TAX DEPARTMENT ISSUED WARRANT UPON THE CUSTOM AUTHORITIES AND SEAR CH WARRANT WAS ISSUED ON 28 - 02 - 2001 AND IT WAS SERVED REQUISITIONING THE SEIZED ITEMS LYING IN THE CUSTODY OF THE CUSTOM DEPARTMENT. THE CASE WAS PURSUED WITH CUSTOM AUTHORITIES BY THE DEPARTMENT, WHICH HAD ULTIMATELY HANDED OVER THE SEIZED STONES AT RS .1,79,47,462/ - ON 9.9.2004 AND A BANK DRAFT OF RS.6,98,880/ - ON 16.12.2004 . 7. IT MAY ALSO BE NOTED THAT THE ABOVE FACTS ARE UNDISPUTED THAT THE ASSESSEE AND REVENUE BOTH HAVE ACCEPTED THE SAME. 8 NOW, THE SUBMISSIONS OF THE LD . COUNSEL OF THE ASSESS EE IS THAT THE AO IN THIS CASE HAS ASSUMED HIS JURISDICTION WHEN INCOME - TAX DEPARTMENT ISSUED WARRANT UPON THE CUSTOM AUTHORITIES ON 28 - 02 - 2001 AND IT WAS SERVED REQUISITIONING THE SEIZED ITEMS LYING IN THE CUSTODY OF THE CUSTOM DEPARTMENT . THE LD. COUNS EL FOR THE ASSESSEE CONTENDED THAT AT THAT POINT OF TIME ACTION COULD HAVE BEEN TAKEN BY THE REVENUE ONLY UNDER CHAPTER XIVB OF THE I.T ACT, WHICH PROVIDED A SPECIAL PROCEDURE FOR ASS UMPTION OF SEARCH CASES. THE LD. COUNSEL SUBMITTED THAT THIS PRO VISION CANNOT BE APPLIED WHERE SEARCH IS INITIATED U/S. 132 OF THE ACT O R BOOKS OF ACCOUNT AND OTHER DOCUMENTS OR ANY ASSET ARE ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 4 REQUISITIONED U/S. 132A OF THE ACT AFTER 31 - 05 - 2003 . THE LD. COUNSEL SUBMITTED THAT FOR A SSESSMENT IN CASE OF SEARCH OR REQUISITION AFTER 31 - 05 - 2003 PROVISIONS OF SECTION 153 A APPLIES. HENCE, HE SUBMITTED THAT IN THE PRESENT CASE ASS UMPTION OF JURISDICTION U/S. 153A BY THE AO IS LIABLE TO BE QUASHED. HE FURTHER SUBMITTED THAT THE DATE ON W HICH THE SEIZED ITEMS / PRECIOUS STONES AND THE BANK DRAFT WERE HANDED OVER TO THE DEPARTMENT ARE NOT AT ALL MATERIAL, WHICH JUSTIFIED THE ASS UMPTION OF JURISDICTION BY THE AO U/S. 153A OF THE ACT. IN THIS REGARD THE LD. COUNSEL OF THE ASSESSEE HAS PLA CED HIS RELIANCE ON THE DECISION S OF THE HON BLE DELHI HIGH COURT IN THE CASE OF SANJAY GUPTA VS. CIT REPORTED IN (2014) 366 ITR 18 (DEL) AND IN THE CASE OF MDL R RESORTS ( P ) LTD UNDER W RIT P ETITION (CIVIL) NO S .8 23 OF 2013 & ORS VIDE ORDER DATED DEC 20,2013. 9. IN THE LIGHT OF ABOVE, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ON THE FACTS OF THE CASE THE AO SHOULD HAVE ISSUED NOTICE UNDER THE CHAPTER XIVB OF THE ACT . SINCE THE AO HAS ASSUMED HIS JURISDICTION U/S. 153A THE ASSUMPTION OF JURIS DICTION IS BAD IN LAW AND THE SAME IS LIABLE TO BE QUASHED. 10. THE LD.DR , ON THE OTHER HAND , COULD NOT COGENTLY CONTROVERT THE ABOVE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE . 11 . WE HAVE HEARD BOTH THE LD. COUNSEL AND PERUSED THE RECORDS. UPON CAR EFUL CONSIDERATION IN THIS CASE, WE NOTE THAT SEARCH AND SEIZURE OPERATION IN THIS CASE WERE CONDUCTED BY THE CUSTOM DEPARTMENT. THE INCOME - TAX DEPARTMENT HAS ISSUED WARRANT UPON CUSTOM AUTHORITIES AND SEARCH WARRANT WAS ISSUED ON 28 - 02 - 2001 . IT WAS S ERVED REQUISITIONING THE SEIZED ITEMS LYING IN THE CUSTODY OF THE CUSTOM DEPARTMENT . THE CUSTOM DEPARTMENT HAD ULTIMATELY HANDED OVER THE SEIZED STONES AT RS. 1,79,47,462/ - ON 9 - 9 - 2004 AND A BANK DRAFT OF RS.6,98,880/ - ON 16 - 12 - 2004 . THE ABOVE FACTS AR E NOT DISPUTED. NOW THE ISSUE UNDER CONSIDERATION IS WHE N THE AO ASSUMED HIS JURISDICTION , WHEN THE INCOME TAX DEPARTMENT ISSUED SEARCH WARRANT ON 28 - 02 - 2001 , WHICH WAS COMMUNICATED ON 5 - 3 - 2001 OR WHETHER THE AO HAS ASSUMED JURISDICTION ON 9 - 9 - 04 W HEN THE SEIZED MATERIALS WERE HANDED OVER TO THE INCOME TAX DEPARTMENT . IN THIS CONNECTION SINCE THE NOTICE IN THIS CASE HAS BEEN ISSUED U/S. 132 A , WE MAY GAINFULLY REFER TO THE PROVISIONS OF SECTION 132A. ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 5 11. SECTION 132A: POWER OF SURVEY. 16 133A. (1) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, AN INCOME - TAX AUTHORITY MAY ENTER (A) ANY PLACE WITHIN THE LIMITS OF THE AREA ASSIGNED TO HIM, OR (B) ANY PLACE OCCUPIED BY ANY PERSON IN RESPECT OF WHOM HE EXERCISES JURISDICTION, 17 [OR] 17 [(C) ANY PLACE IN RESPECT OF WHICH HE IS AUTHORISED FOR THE PURPOSES OF THIS SECTION BY SUCH INCOME - TAX AUTHORITY, WHO IS ASSIGNED THE AREA WITHIN WHICH SUCH PLACE IS SITUATED OR WH O EXERCISES JURISDICTION IN RESPECT OF ANY PERSON OCCUPYING SUCH PLACE,] AT WHICH A BUSINESS OR PROFESSION IS CARRIED ON, WHETHER SUCH PLACE BE THE PRINCIPAL PLACE OR NOT OF SUCH BUSINESS OR PROFESSION, AND REQUIRE ANY PROPRIETOR, EMPLOYEE OR ANY OTHER PER SON WHO MAY AT THAT TIME AND PLACE BE ATTENDING IN ANY MANNER TO, OR HELPING IN, THE CARRYING ON OF SUCH BUSINESS OR PROFESSION (I) TO AFFORD HIM THE NECESSARY FACILITY TO INSPECT SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS HE MAY REQUIRE AND WHICH MAY B E AVAILABLE AT SUCH PLACE, (II) TO AFFORD HIM THE NECESSARY FACILITY TO CHECK OR VERIFY THE CASH, STOCK OR OTHER VALUABLE ARTICLE OR THING WHICH MAY BE FOUND THEREIN, AND (III) TO FURNISH SUCH INFORMATION AS HE MAY REQUIRE AS TO ANY MATTER WHICH MAY BE U SEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT. EXPLANATION. FOR THE PURPOSES OF THIS SUB - SECTION, A PLACE WHERE A BUSINESS OR PROFESSION IS CARRIED ON SHALL ALSO INCLUDE ANY OTHER PLACE, WHETHER ANY BUSINESS OR PROFESSION IS CARRIED ON THEREIN O R NOT, IN WHICH THE PERSON CARRYING ON THE BUSINESS OR PROFESSION STATES THAT ANY OF HIS BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY PART OF HIS CASH OR STOCK OR OTHER VALUABLE ARTICLE OR THING RELATING TO HIS BUSINESS OR PROFESSION ARE OR IS KEPT. (2) AN I NCOME - TAX AUTHORITY MAY ENTER ANY PLACE OF BUSINESS OR PROFESSION REFERRED TO IN SUB - SECTION (1) ONLY DURING THE HOURS AT WHICH SUCH PLACE IS OPEN FOR THE CONDUCT OF BUSINESS OR PROFESSION AND, IN THE CASE OF ANY OTHER PLACE, ONLY AFTER SUNRISE AND BEFORE SUNSET. (3) AN INCOME - TAX AUTHORITY ACTING UNDER THIS SECTION MAY, (I) IF HE SO DEEMS NECESSARY, PLACE MARKS OF IDENTIFICATION ON THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS INSPECTED BY HIM AND MAKE OR CAUSE TO BE MADE EXTRACTS OR COPIES THEREFROM, 18 [(IA) IMPOUND AND RETAIN IN HIS CUSTODY FOR SUCH PERIOD AS HE THINKS FI T ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS INSPECTED BY HIM: PROVIDED THAT SUCH INCOME - TAX AUTHORITY SHALL NOT (A) IMPOUND ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS EXCEPT AFTER RECORDING HIS REASONS FOR SO DOING; OR 19 [(B) RETAIN IN HIS CUSTODY ANY SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS FOR A PERIOD EXCEEDING TEN D AYS (EXCLUSIVE OF HOLIDAYS) WITHOUT OBTAINING THE APPROVAL OF THE CHIEF COMMISSIONER OR DIRECTOR GENERAL THEREFOR, AS THE CASE MAY BE,]] (II) MAKE AN INVENTORY OF ANY CASH, STOCK OR OTHER VALUABLE ARTICLE OR THING CHECKED OR VERIFIED BY HIM, ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 6 (III) RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT. (4) AN INCOME - TAX AUTHORITY ACTING UNDER THIS SECTION SHALL, ON NO ACCOUNT, REMOVE OR CAUSE TO BE REMOVED FROM THE PLACE WHEREIN HE HAS ENTERED, 20 [***] ANY CASH, STOCK OR OTHER VALUABLE ARTICLE OR THING. (5) WHERE, HAVIN G REGARD TO THE NATURE AND SCALE OF EXPENDITURE INCURRED BY AN ASSESSEE, IN CONNECTION WITH ANY FUNCTION, CEREMONY OR EVENT, THE INCOME - TAX AUTHORITY IS OF THE OPINION THAT IT IS NECESSARY OR EXPEDIENT SO TO DO, HE MAY, AT ANY TIME AFTER SUCH FUNCTION, CER EMONY OR EVENT, REQUIRE THE ASSESSEE BY WHOM SUCH EXPENDITURE HAS BEEN INCURRED OR ANY PERSON WHO, IN THE OPINION OF THE INCOME - TAX AUTHORITY, IS LIKELY TO POSSESS INFORMATION AS RESPECTS THE EXPENDITURE INCURRED, TO FURNISH SUCH INFORMATION AS HE MAY REQU IRE AS TO ANY MATTER WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT AND MAY HAVE THE STATEMENTS OF THE ASSESSEE OR ANY OTHER PERSON RECORDED AND ANY STATEMENT SO RECORDED MAY THEREAFTER BE USED IN EVIDENCE IN ANY PROCEEDING UNDER TH IS ACT. (6) IF A PERSON UNDER THIS SECTION IS REQUIRED TO AFFORD FACILITY TO THE INCOME - TAX AUTHORITY TO INSPECT BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TO CHECK OR VERIFY ANY CASH, STOCK OR OTHER VALUABLE ARTICLE OR THING OR TO FURNISH ANY INFORMATION OR T O HAVE HIS STATEMENT RECORDED EITHER REFUSES OR EVADES TO DO SO, THE INCOME - TAX AUTHORITY SHALL HAVE ALL THE POWERS UNDER 21 [SUB - SECTION (1) OF SECTION 131 ] FOR ENFORCING COMPLIANCE WITH THE REQUIREMENT MADE : 22 [ PROVIDED THAT NO ACTION UNDER SUB - SECTION (1) SHALL BE TAKEN BY AN ASSISTANT DIRECTOR OR A DEPUTY DIRECTOR OR AN ASSESSING OFFICER OR A TAX RECOVERY OFFICER OR AN INSPECTOR OF INCOME - TAX WITHOUT OBTAINING THE APPROVAL OF THE JOINT DIRECTOR OR TH E JOINT COMMISSIONER, AS THE CASE MAY BE.] EXPLANATION. IN THIS SECTION, 23 [(A) INCOME - TAX AUTHORITY MEANS A COMMISSIONER, A JOINT COMMISSIONER, A DIRECTOR, A JOINT DIRECTOR, AN ASSISTANT DIRECTOR OR A DEPUTY DIRECTOR OR AN ASSESSING OFFICER, OR A TAX RECOVERY OFFICER, AND FOR THE PURPOSES OF CLAUSE (I) OF SUB - SECTIO N (1), CLAUSE (I) OF SUB - SECTION (3) AND SUB - SECTION (5), INCLUDES AN INSPECTOR OF INCOME - TAX;] (B) PROCEEDING MEANS ANY PROCEEDING UNDER THIS ACT IN RESPECT OF ANY YEAR WHICH MAY BE PENDING ON THE DATE ON WHICH THE POWERS UNDER THIS SECTION ARE EXERCIS ED OR WHICH MAY HAVE BEEN COMPLETED ON OR BEFORE SUCH DATE AND INCLUDES ALSO ALL PROCEEDINGS UNDER THIS ACT WHICH MAY BE COMMENCED AFTER SUCH DATE IN RESPECT OF ANY YEAR.] 12. NOW, WE ALSO REFER TO THE PROVISIONS OF SECTION 153A. SECTION 153A: [ ASSES SMENT IN CASE OF SEARCH OR REQUISITION. 153A. 15A [ (1) ] NOTWITH STA NDING 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 SEC TION 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 NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 7 (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDI NGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECT ION 139 ; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS 15B [ 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. 15C [ (2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB - SECTION (1 ) HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION (1) OR SECTION 153 , THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB - SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE O RDER OF SUCH ANNULMENT BY THE COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE. ] EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTIO N, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESS MENT OR REASSESSMENT 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. 13. A READING OF THE ABOVE, MAKES IT CLEAR THAT THE SECTION 153A POSTULATES THAT WHEN THE ASS ETS ARE REQUISITIONED U/S. 132A OF THE ACT AFTER 31 - 05 - 2003 , T HE AO SHALL ISSUE NOTICE U/S. 153A . OF THE ACT. IN THE PRESENT CASE, WE NOTE THAT THE INCOME - TAX DEPARTMENT HAS ISSUED REQUISITION U/S. 132A ON 28 - 02 - 2001, WHICH WAS COMMUNICATED TO T HE CUSTOM DEPARTMENT ON 5 - 3 - 2001. SINCE NONE OF THE SE EVENTS OCCURRED AFTER 31 - 05 - 2003 ADMITTEDLY AS PER PROVISIONS OF THE INCOME - TAX ACT, THE ASS UMPTION OF JURISDICTION U/S. 153A OF THE ACT IS NOT SUSTAINABLE. IN THIS REGARD, WE AGREE WITH THE LD. COUNSEL OF THE ASSESSEE THAT SECTION 158BC OR SECTION 158BD WAS APPLICABLE UNDER CHAPTER XIVB OF THE ACT IN THIS CASE . T HE AO COULD HAVE ONLY ASSUMED THE JURISDICTION UNDER THAT CHAPTER XIVB . SECTION 158BI OF THIS CHAPTER PROVIDED THAT PROVISION OF THIS C HAPTER WAS NOT APPLIED WHERE SEARCH WAS INITIATED U/S. 132 ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 8 OR BOOKS OF ACCOUNT AND OTHER DOCUMENT OR ANY ASSETS ARE REQUISITIONED U/S. 132A AFTER 31 - 05 - 2003. FROM THE ABOVE , IT IS AMPLY CLEAR THAT THE PROVISIONS OF SECTION UNDER CHAPTER XIVB OF TH E ACT WERE APPLICABLE WHERE REQUISITIONS HAVE BEEN MADE U/S. 132A UPTO 31 - 05 - 2003 . IN THIS CASE SINCE REQUISITION WAS MADE ON 28 - 02 - 2001 , ADMITTEDLY, THE PROVISIONS OF SECTION UNDER CHAPTER XIV B OF THE ACT WE R E APPLICABLE. HENCE, ASS UMPTION OF JURISD ICTION OTHERWISE THAN BY RECOURSE TO CHAPTER XIVB IS NOT SUSTAINABLE /APPLICABLE AS PER LAW. 14. THUS O N PLAIN READING THE PROVISIONS OF SECTION 132A, 153A, 158BI OF THE ACT , IT IS CLEAR THAT THE ASSUMPTION OF JURISDICTION DEPEND S ON THE DATE OF REQUISI TION U/S. 132A . I N THE ACT IT HAS NOWHERE BEEN PROVIDED THAT ASSUMPTION OF JURISDICTION DEPEND S ON SUPPLY OF REQUISITIONED MATERIALS. IN THIS REGARD, WE FIND SUPPORT FROM THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF SANJYA GUPTA (SUPR A). P ARA 20, 24 AND ,25 OF THE SAID ORDER ARE REPRODUCED HEREUNDER: - PARA 20 FOLLOWING THE RULE OF INTERPRETATION AS APPLIED BY THE COURTS IN THE AFORESAID DECISIONS AND ON A PLAIN READING OF SECTION 158B(A) AND EXPLANATION 2 TO SECTION 158BE , ONE WOULD HAVE DIFFICULTY IN ACCEPTING THAT THE EXPRESSION REQUISITION WAS MADE MUST BE READ TO MEAN THE SAME AS AUTHORIZATIONS FOR REQUISITION WAS EXECUTED . NOTWITHSTANDING, OUR RESERVATIONS IN READING TWO EXPRESSIONS IN A GIVEN STATUTE IN THE SAME MANNER AS POINTED OUT ABOVE, IT MUST BE ACCEPTED THAT IN GIVEN CASES IT MAY BE NECESSARY TO READ DIFFERENT EXPRESSION TO CONVEY THE SAME MEANING OR TO DEPART FROM THE NATURAL MEANING OF THE LANGUAGE. HOWEVER, IN ORDER TO DO SO ONE MUST FIND THE LANGUAGE OF THE STATUTE TO BE AMBIGUOUS O R THE CONTEXT OF THE STATUTE SUCH THAT IT COMPELS AN INTERPRETATION THAT DEPARTS FROM THE GENERAL RULE. WE THEREFORE MUST EXAMINE WHETHER THERE IS ANY AMBIGUITY IN THE LANGUAGE OF SECTION 158B(A) OR WHETHER THE SCHEME OF THE STATUTORY PROVISIONS WARRANTS READING THE EXPRESSION REQUISITION WAS MADE TO MEAN WHEN ASSETS/BOOKS OF ACCOUNTS ARE RECEIVED BY THE AUTHORIZED OFFICER. PARA 24. GIVEN THE SPECIFIC PURPOSE OF EXPLANATION 2 TO SECTION 158BE , WE CANNOT ACCEPT THE CONTENTION THAT THE SAME MUST BE EXTENDED TO INTERPRET THE MEANING OF BLOCK PERIOD AS DEFINED BY CLAUSE OF (A) SECTION 158B OF THE ACT. PARA 25. IN OUR VIEW, THE ORDINARY, NATURAL MEANING OF THE WORDS USED UNDER SECTION 158B(A) NEED NOT BE DEPARTED FROM. THERE IS, FIRST OF ALL, NO AMBIGUITY IN THE LANGUAGE. SECONDLY, THE DEFINITION OF THE EXPRESSION BLOCK PERIOD AS UNDERSTOOD BY THE PLAIN LANGUAGE OF SECTION 158B(A) ALSO CONFORMS TO THE SCHEME OF CHAPTER XIVB OF THE ACT. WE, THEREFORE, FIND NO REASON TO READ THE EXPRESSION REQUISITION WAS MADE TO NOT MEAN THE DATE ON WHICH THE AUTHORIZED OFFICER MADE THE REQUISITION BUT TO MEAN THE DATE WHEN HE RECEIVED THE RECORDS/ASSETS PURSUANT THERETO. ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 9 15. ON THE ANVIL OF ABOVE , IT IS AMPLY CLEAR THAT PURSUANT TO TH E REQUISITION U/S. 132A ON 28.2.2001 THE JURISDICTION C OULD HAVE BEEN ASSUMED ONLY UNDER CHAPTER XIVB I.E FROM THE DATE ON WHICH THE AUTHORIZED OFFICER HAS MADE THE REQUISITION AND NOT THE DATE WHEN HE RECEIVED THE RECORDS/ ASSETS PURSUANT THERETO . IN THIS REGARD, WE MAY ALSO GAINFULLY REFER TO THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF MDR RESORTS P.LTD (SUPRA) . T HE EXPOSITION BY THE HON BLE DELHI HIGH COURT HELD IN PARA 17, WHICH IS REPRODUCED HEREUNDER: - PARA 17 WHAT IS NOTICEABLE THAT THE MANDATE AND LANGUAGE SECTION 153A (1) DOES NOT MAKE ANY REFERENCE TO PANCHNAMA OR THE DATE OF PANCHNAMA. IT DOES NOT STATE THAT THE PANCHNAMA IS A PRE - CONDITION FOR INVOKING THE SAID SECTION. THE WORDS USED BY THE LEGISLATURE ARE SE ARCH IS INITIATED UNDER SECTION 132 THE WORD INITIATE MEANS TO COMMENCE OR START. THE SECTION IS INVOKED AND APPLICABLE WHEN THE SEARCH IS INITIATED . IN OTHER WORDS, THE SECTION TICKS OF AND COMES INTO PLAY WHEN THE SEARCH COMMENCES OR IS UNDER TAKEN AGAINST A PERSON. THE EXPRESSION NITIATE HAD COME UP FOR INTERPRETATION BEFORE THE KARNATAKA HIGH COURT IN CIT V WIPRO FINANCE LTD [2010] 323 ITR 467/[2009] 176 TAXMAN 233 IN RELATION TO SECTIONS 158BC , 158BD ETC. AND IT WAS OBSERVED THAT AS PER THE DICTIONARY MEANING, THE SAID WORD REFERS TO BEGINNING, COMMENCEMENT OR START OF PROCEEDINGS. REFERENCE WAS MADE TO THE DECISION OF THE SUPREME COURT IN OM PRAKASH JAISWAL V D.K MITTAR AIR 2000 SC 1136, WHEREIN EXPRESSION INITIATE ANY PROCEEDINGS FO R CONTEMPT IN SECTION 20 OF THE CONTEMPT OF COURTS ACT 1971 , WAS INTERPRETED. IT WAS HELD THAT THE WORD NITIATE MEANS INTRODUCTORY STEPS OR ACTION OR FIRST MOVE. BLACK S LAW DICTIONARY WAS REFERRED TO AND IT WAS OBSERVED THAT INITIATION OF CONTEMPT PROCEEDINGS TAKES PLACE WHEN THE COURT APPLIES ITS MIND TO ALLEGATION AND DECIDES TO DIRECT THE ALLEGED CONTEMNOR UNDER SECTION 17 TO SHOW - CAUSE AS TO WHY HE SHOULD NOT BE PUNISHED. THEREAFTER, REFERENCE WAS MADE TO DIFFERENT FACTUAL SITUATIONS, 15.1 FROM THE ABOVE , IT IS EVIDENT THAT AO ASSUMED JURISDICTION ON 28.2.2001 WHEN REQUISITION WAS ISSUED. S ECTION 153A ALSO POSTULATES THAT ACTION SHOULD BE INITIATED AS PER THIS SECTION FROM THE DATE ON SEARCH U/S. 132 OR SECTION 132A BY REQUISITIO N. IN THE PRESENT CASE, SINCE REQUIS ITION WAS MADE PRIOR TO 31 - 05 - 2003 WHEN SECTION 153 A WAS NOT IN EXISTENCE , THE ASSUMPTION OF JURISDICTION U/S. 153A OF THE ACT BY THE AO IS BAD IN LAW AND THE SAME IS LIABLE TO BE QUASHED. 16. IN THE BACKGROUND OF AFORESAID DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT THE AO WAS NOT CORRECT IN ASSUMING HIS JURISDICTION U/S. 153 A OF THE ACT INASMUCH AS THE REQUISITION U/S. 132A WAS MADE IN THIS CASE PRIOR TO 31 - 05 - 2003. SINCE WE HAVE ALREADY ITA NO S . 1939 & 1940/KOL/08 - B - AM SACHIN A.MEHTA, KOL 10 QUASHED THE ASS UMPTION OF JURISDICTION, THE ADJUDICATION ON MERITS ON OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOW ACADEMIC IN NATURE. HENCE, WE ARE NOT DEALING WITH THE SAME. 17. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED AS STATED ABOVE. THE ORDER PRO NOUNCED ON 16/12/2014 SD/ - SD/ - [ , ] [ , ] [ MAHAVIR SINGH , JUDICIAL MEMBER] [ SHAMIM YAHYA, ACCOUNTANT MEMBER / DATED 16 - 1 2 - 2014 / COPY OF THE ORDER FORWARDED TO: 1 . /APPELLANT - SACHIN A MEHTA 14 MUKTARAM BABU ST., KOL - 7. 2 / RESPONDENT : DCIT,CIR - 43 /13 , 40 STRAND ROAD, 5 TH FL., KOL - 1 3 . / CIT, 4 . ( )/ CI T(A), 5 . / DR, KOLKATA BENCHES, KOLKATA *PP/SPS [ / TRUE COPY] / BY ORDER, /ASSTT REGISTRAR