Appeal details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 8556 (ITAT-GUWAHATI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-07-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2011-2012
Appeal Filed On
15-12-2017
Judgement Text
] \ ' \ ' , ' , IN THEINCOMETAXAPPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRIS.S.GODARA,JUDICIALMEMBER AND DR. A.L. SAINI, ACCOUNTANTMEMBER ITA NO. 235 - 238 / GAU / 2017 ASSESSMENT YEARS :2011-12 TO 2014-15 SMT. MOUMITA SAHA, KASARIPATTI, AGARTALA SADAR, WEST TRIPURA- 799001 [ PAN NO.DBVPS 1316 G ] V/S . ACIT, CIRCLE- AGARTALA AGARTALA, TRIPURA \ ' /APPELLANT .. / RESPONDENT ] ' J /BYASSESSEE SHRI SANJAYMODI, FCA J /BYRESPONDENT SHRI M.HAOKIP,JCIT-DR& SHRI K. BHARDWAJ, ADDL.CIT-DR ' _ /DATEOFHEARING 08-07-2019 /DATEOFPRONOUNCEMENT 12 -07-2019 / ORDE R PERBENCH:- THESE FOUR ASSESSEES APPEALS FOR ASSESSMENT YEAR(S) 2011-12 TO 2014-15 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-SHILLONGS SEPARATE ORDERS DATED 21.09.2017 AND 22.09.2017 PASSED IN CASE NOS. CIT(A)/SHG/10229, 16232, 10234 & 10263/2016-17, INVOLVING PROCEEDINGS U/S 153CR.W.S.143(3)OF THEINCOMETAXACT, 1961;INSHORTTHE ACT. HEARD LEARNED COUNSEL, SHRI SANJAY MODI REPRESENTING THE ASSESSEE AND SHRI A.K. BHARDWAJ AND MR. M. HAOKIP APPEARING AT THE REVENUES BEHEST. CASE FILE(S) PERUSED. ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE2 2. IT EMERGES DURING THE COURSE OF HEARING THAT THE ASSESSEES FOUR APPEAL(S) IN ITA NO.235 TO 238/GAU/2017 CHALLENGE VALIDITY OF THE LOWER AUTHORITIES ACTION INITIATING SEC. 153C PROCEEDINGS IN ABSENCE OF ANY SATISFACTION RECORDED THAT THE SEARCH ITS ISSUE HAD LED TO ANY MONEY, BULLION JEWELLERY OR OTHER SPECIFIED ASSET IS TO BE BELONGING OR PERTAINING OR RELATING TO THIS TAXPAYER. WE ARE TAKEN TO ASSESSING OFFICERS IDENTICAL SATISFACTION INITIATINGTHEIMPUGNEDPROCEEDINGSREADINGASUNDER:- ORDER SHEET NAMEOF THE ASSESSEE:MOUMITA SAHA PAN:DBVPS 1316B ASSESSMENTYEAR:2011-12 DATE:02-11-2015 A SEARCH AND SEIZURE WAS CONDUCTED IN THE PREMISES OF MOUMITA SAHA ON 25.03.2015 . APPRAISAL OF THE CASE HAS ALREADY BEEN RECEIVED FROM THE DDIT, GUWAHATI. IT IS A CONSEQUENTIAL CASE OF SUSHANTA SAHA . ACCORDINGLY A NOTICE U/S. 153A READ WITH SECTION 153C IS ISSUED TO THE ASSESSEE CALLING RETURN FOR THE ASST. YEAR 2011-12 BEING ONE OF THE SIX ASSESSMENT YEARS PRECEDING TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED) IN THE PRESCRIBED FORMAT AND BE DULY VERIFIED IN PRESCRIBED MANNER AND TO BE SUBMITTED TO THEOFFICEOFTHEUNDER SIGNED BY03-12-2015 . PREPAREDBY DCIT SD/- ILLEGIBLE SD/-RITA SEN STENOGRAPHER (RITASEN) OFFICESUPERINTENDENT O/OTHE JCIT,AGARTALA THE ASSESSEE THEN QUOTES THIS TRIBUNALS DECISION IN THE VERYSEARCH RELATING TO GROUP ENTERPRISE JOYRAM ENTERPRISE VS. ACIT IN ITA NO. 260 TO 266/GAU/2017 QUASHING THE IDENTICAL OF PROCEEDINGS IN ABSENCE OF A VALID SATISFACTION ON IDENTICALLINES ASREPRODUCED ASUNDER:- 2. AS THE FACTS AND ISSUE INVOLVED IN THESE APPEALS ARE IDENTICAL, THEY ARE BEING DISPOSED OFFTOGETHER BYTHIS CONSOLIDATEDORDER. 3. THE GROUNDS RAISED IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-2010 ARE ASUNDER:- 1. FOR THAT THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOMETAX(APPEALS)[CIT(A)] ISBAD IN LAW,FACTSAND PROCEDURE. 2 FOR THAT THE LD. CIT(A) ERRED IN NOT QUASHING THE ORDER OF ASSESSMENT PASSED BYTHELD. AOWHICH IS BARREDBYLIMITATION. 3. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER PASSED BY THE LD. AO AS THE INITIATION OF PROCEEDINGS U/S. 1563C OF THE ACT IN THE INSTANT ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE3 CASE IS WITHOUT SATISFACTION OF PRE-REQUISITE CONDITIONS AND CONSEQUENTLY, WITHOUTJURISDICTIONAND BAD IN LAW. 4. FOR THAT IN ABSENCE OF ANY VALID NOTICE U/S. 153C BEING SERVED UPON THE APPELLANT ALSO,THE IMPUGNED ORDER IS WITHOUTJURISDICTION AND BADIN LAW. 5. FOR THAT THE IMPUGNED ORDER WAS PASSED BY THE LEARNED CIT(A) IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD AND HENCE, THE SAME IS BAD IN LAW AND IS LIABLE TO BEQUASHED. 6. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ARBITRARY ADDITION OF RS.33,873/-. 7. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ARBITRARY ADDITION FORRS.4,86,411/- 8. FOR THAT THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE CHARGE OF INTEREST U/S. 234C AT RS.5,948/- IS BAD IN LAWAND UNTENABLE. 9. FOR THAT YOUR APPELLANT CRAVES LEAVES OF YOUR HONOURS TO TAKE ADDITIONAL GROUND OR GROUNDS AND/OR TO MODIFY ANY GROUND(S) OF APPEAL AT OR BEFORE THE TIME OF HEARING. 4. THE AR OF THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT HE WILL BE ARGUING GROUND NO.3 OF THE APPEAL, WHICH IS DIRECTED AGAINST THE ASSESSING OFFICER INITIATING PROCEEDINGS U/S 153C OF THE ACT WHERE THE PROCEEDINGS WERE INITIATED BY HIM WITHOUT RECORDING SATISFACTION WHICH IS A PRE-REQUISITE CONDITIONS FOR INITIATING PROCEEDINGS U/S 153C OF THE ACT AND WITHOUT WHICH THE AO DOES NOT DERIVE JURISDICTION TO MAKE ASSESSMENT AND, THEREFORE, THE ORDER PASSED BY HIM U/S 153C OF THE ACT IS WITHOUT JURISDICTION AND BADIN LAW. 5. HE SUBMITTED THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI SUSHANTA SAHA ON 25.03.2015. SHRI SUSHANTA SAHA IS A PARTNER IN THE ASSESSEE FIRM, FROM WHERE CERTAIN DOCUMENTS WERE FOUND AND SEIZED IN THE SEARCH OPERATION, THEREFORE, PROCEEDINGS U/S. 153C OF THE ACT WAS INITIATED AGAINST THE ASSESSEE FOR THE SIX YEARS UNDER CONSIDERATION AND CONSEQUENTLY AN ORDER CAME TO BE PASSED U/S. 153C R.W.S. 143(3) OF THE ACT ON 26.12.2016. THE PROCEEDINGS WAS STARTED U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION OF THE NATURE SPECIFIED IN SECTION 153C OF THE ACT AND, THEREFORE, IS INVALID AND BAD IN LAW. FOR THIS, HE PLACED RELIANCE ON THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. M/S SHETTYS PHARMACEUTICALS & BIOLOGICALS LTD. IN ITAT NO.662 OF 2014 DATED 26-11-2014 AS WELL AS DECISION OF HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI SATYANARAYAN AGARWAL VS ASST. CIT, ITA NO.1764/HYD/2013 , DATED 08.01.2016, WHERE IT WAS HELD THAT INITIATION OF PROCEEDINGS U/S 153C OF THE ACT WITHOUT RECORDING SATISFACTION BYTHE ASSESSING OFFICEROFTHESEARCHEDPERSON AND BY THE ASSESSING OFFICER OF THE OTHER PERSON AGAINST WHOM PROCEEDINGS U/S 153C OF THE ACT ARETAKEN UP,THEPROCEEDING IS INVALID AND BAD IN LAW. 6. THE DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, REFERRED TO THE SECTION 124(3)(C) OF THE INCOME-TAX ACT AND CONTENDED THAT NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER IN A CASE WHERE AN ACTION HAS BEEN TAKEN U/S. 132 OR U/S. 132A OF THE ACT AFTER THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED WITH A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 153A OF THE INCOME-TAX ACT OR SUB-SECTION (2) OF SECTION 153C OF THE INCOME-TAX ACT OR AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. HE SUBMITTED THAT THE OBJECTION WHICH IS NOW BEING RAISED BY THE ASSESSEE THAT THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT IS BAD IN LAW, SHOULD HAVE BEEN RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WITHIN ONE MONTH OF THE INITIATION OF PROCEEDINGS BY HIM AND AS THIS WAS NOT DONE, IN VIEW OF THE PROVISIONS OF SECTION 124(3)(C)OF THE ACT, THE SAME CANNOT BERAISEDNOW BEFORETHETRIBUNAL. 7. IN THE REJOINDER, THEN COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 124(3)(C) OF THE ACT WHICH PROVIDES THAT NO PERSON SHALL BE ENTITLED TO CALL IN ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE4 QUESTION THE JURISDICTION OF AN ASSESSING OFFICER AFTER THE EXPIRY OF ONE MONTH FROM THE DATE OF SERVICE OF NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 153A OR SUB- SECTION (2) OF SECTION 153C OF THE INCOME-TAX ACT OR AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER, WAS INSERTED W.E.F. 01.06.2016, WHEREAS THE PROCEEDING IN THE CASE OF ASSESSEE U/S. 153C OF THE ACT WAS INITIATED ON 02.11.2015 AND, HENCE, THE PROVISIONS ARE NOT APPLICABLE TO THE ASSESSEE. HE FURTHER CONTENDED THAT IN PRESENT APPEAL BEFORE THE TRIBUNAL, THE JURISDICTION OF THE AO IS NOT CHALLENGED PER SE BUT THE VALIDITY OF THE ACTIN OF AO TO INITIATE PROCEEDINGS U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION WHICH IS A SINE QUA NON IS CHALLENGED AND, THEREFORE, THE SAID PROVISIONS ARE NOT APPLICABLE IN THECASEOFTHE ASSESSEE. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEFLY THE FACTS RELATED TO ALL THE SIX YEARS UNDER APPEAL I.E. ASSESSMENTYEARS 2009- 2010 TO 2014-2015 ARE THAT A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI SUSHANTA SAHA ON 25.03.2015. THE SAID SHRI SUSHANTA SAHA IS A PARTNER IN THE ASSESSEE FIRM AND DOCUMENTS RELATED TO THE ASSESSEE FIRM WERE ALSO FOUND AND SEIZED DIN THE COURSE OF SEARCH OPERATION. CONSEQUENTLY, THE ASSESSMENT PROCEEDINGS U/S 153C OF THE ACT WAS INITIATED AGAINST THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDERATION AND ASSESSMENT U/S. 153C R.W.S 143(3) OF THE ACT WAS COMPLETED ON 26.12.2016. THE ASSESSEE CONTENDED BEFORE US THAT THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT IN THE INSTANT CASE IN ABSENCE OF RECORDING OF SATISFACTION OF THE NATURE SPECIFIED IN SECTION 153C OF THE ACT, IS INVALID AND BAD IN LAW. THE AS HAS FILED PAPER BOOK BEFORE US WHEREIN COPY OF ORDER SHEET ENTRIES FOR ALL THE SIX YEARS UNDER CONSIDERATION ARE FILED AT PAGE NOS. 1 TO 14 OF THE PAPER BOOK. THE FIRST RECORDING IN THE ORDER SHEET OF THE ASSESSEE IS MADE BY TD HE AO ON 02.11.2015 I.E. THE VERY SAME DATE ON WHICH NOTICE U/S. 153C OF THE ACT WAS ISSUED. THE RECORDING MADE ON 02.11.2015 IN THE ASSESSMENT YEAR 2009-2010 READS AS UNDER:- ORDER SHEEET NAME OFTHE ASSESSEE: JOYRAMENTERPRISE PAN: AAGFJ6548 N ASSESSMENT YEAR: 2009-10 DATE:02.11.2015 A SEARCH AND SEIZURE WAS CONDUCTED IN THE PREMISES OF JOY RAM ENTERPRISE ON 25.03.2015 . APPRAISAL OF THE CASE HAS ALREADY BEEN RECEIVED FROM THE DDIT, GUWAHATI. IT IS A CONSEQUENTIAL CASE OF SUSHANTA SAHA . ACCORDINGLY A NOTICE U/S. 153A READ WITH SECTION 153C IS ISSUED TO THE ASSESSEE CALLING RETURN FOR THE ASST. YEAR 2009-10 ) BEING ONE OF THE SIX ASSESSMENT YEARS PRECEDING TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED) IN THE PRESCRIBED FORMAT AND BE DULY VERIFIED IN PRESCRIBED MANNER AND TO BE SUBMITTED TO THE OFFICE OF THE UNDER SIGNED BY 03.12-2015 . SD/- DCIT 9. THE RECORDINGS MADE FOR ALL OTHER YEARS UNDER CONSIDERATION ARE ALSO EXACTLY THE SAME, EXCEPT CHANGE OF ASSESSMENT YEAR. THUS, IT IS OBSERVED THAT NOWHERE IT STATES RECORDING OF ANY SATISFACTION IN THE CASE OF SEARCHED PERSON WHICH HAVES BEEN PLACED IN THIS FILE OF THE ASSESSEE NOR ANY RECORD OF SATISFACTION TO THE EFFECT THAT BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED HAVE A BEARING ON THE TOTAL INCOME OFTHE ASSESSEEFORTHERELEVANT ASSESSMENT YEARS. 10. SECTION 153C OFTHEACT ASWAS INFORCE ATTHE MATERIALTIME,READS ASUNDER:- 1 53C.(1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICERIS SATISFIEDTHAT,- (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGSTO;OR ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE5 (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUISITIONED, PERTAINS OR PERTAINTO,ORANYINFORMATION CONTAINEDTHEREIN,RELATES TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL, INCOME OF SUCH OTHER PERSON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A 11. WE FIND THAT THE HON ANDHRA PRADESH HIGH COURT IN THE CASE OF SHETTYS PHARMACEUTICALS & BIOLOGICAL LTD. IN ITTA NO.662 OF 2014 DATED 26.11.2014, HAS CONSIDERED SIMILAR FACTS AND ANALYSED THE ABOVE PROVISIONS OF SECTION 153C OF THE ACT AND UPHELD THE DECISION OF THE TRIBUNAL THAT INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT WAS INVALID AND CONSEQUENTLY AND CONSEQUENTLY, THE ORDER PASSED U/S. 153C WAS BAD IN LAW. THE HONBLE ANDHRA PRADESH HIGH COURT ON A READING OF SECTION 153C OFTHEACT, HASHELD AS UNDER:- . .. IT IS THEREFORE CLEAR THAT FIRSTLY SATISFACTION HAS TO BE RECORDED BY THE ASSESSING OFFICER WHO CONDUCTED SEARCH, THAT ANY MONEY, BULLION, JEWEELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT. THEREAFTER, THE ASSESSING OFFICER HAVING JURISDICTION OVER THIRD PARTYON RECEIPT OF THE SEIZED MATERIAL OR BOOKS OF ACCOUNTS OR DOCUMENT BEING HANDED OVER TO HIM SHALL RECORD HIS OWN SATISFACTION AFTER EXAMINING THE SAME INDEPENDENTLY WITHOUT BEING INFLUENCED BY THE SATISFACTION OF THE SEIZING OFFICER. IN OTHER WORDS IT IS NOT AN AUTOMATIC ACTION. WE FINDSATISFACTION OF TWO OFFICERS ISMISSING.IN THIS CONNECTION WE SET OUT THETEXT OF THEORDEROF THE ASSESSING OFFICERWHICH IS ASFOLLOWS:- SEARCH AND SEIZURE OPERATION U/S 132 WAS CARRIED OUT IN THE GROUP CASE OF DR. T. YADHAIAH GOUD AND OTHERS ON 25.3.2010. DURING THE COURSE OF SEARCH OPERATION DOCUMENTS BELONGING TO SHETTY PHARMACEUTICALS & BILOOGICAL LTDD., HAS BEEN SEIZED. HENCE IT IS CONSIDERED TO INITIATE PROCEEDING U/S 153C OF THEIT ACT. THE AFORESAID SECTION MANDATES RECORDING OF SATISFACTION OF THE ASSESSING OFFICER(S) IS A PRE-CONDITION FOR INVOKING JURISDICTION AND IT IS NOT A MERE FORMALITY BECAUSE RECORDING OF SATISFACTION POSTULATES APPLICATION OF MIND CONSCIOUSLY AS THE DOCUMENTS SEIZED MUST BE BELONGING TO THE ANY OTHER PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153-A OF THE ACT. IT IS CONTENDED THAT THE SAME ASSESSING OFFICER IS INVOLVED IN THE MATTER. THIS FACT DOES NOT DISPENSE WITH ABOVE REQUIREMENT. IT IS SETTLED POSITION OF LAW THAT WHEN A THING IS TO BE DONE IN ONE PARTICULAR MANNER UNDER LAW THIS HAS TO BE DONE IN THAT MANNER ALONE AND NOT OTHER WAY (SEE NAZIR AHEMD V. KIND EMPEROR). WE THINK THE LEARNED TRIBUNAL HAS CORRECTLY FOLLOWED THE PRINCIPLE.WEDO NOTFINDANYELEMENT OF LAWTO BEDECIDED. 12. THE ABOVE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT WAS FOLLOWED BY THE HYDERABAD TRIBUNAL IN THE CASE OF SRI SATYANARAYAN AGARWAL VS. ASST. CIT, ITA NO. 1764/HYD/2013 DATED 08.01.2016. TO THE SAME EFFECT IS ALSO THE DECISION OF DELHI ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE6 BENCH OF THE TRIBUNAL IN THE CASE OF TANVIR COLLECTIONS PVT. LTD. VS ACIT IN ITA NO.2421/DEL/2014 , ORDER DATED 16.01.2015. THE CBDT ALSO VIDE ITS CIRCULAR NO.24/2015, DATED 31.12.2015 HAS ACCEPTED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. CALCUTTA KNITWEARS, [2014] 362 ITR 673( SC), WHEREIN IT WAS HELD THAT RECORDING OF A SATISFACTION IS SINE QUA NON FOR TAKING AN ACTION AGAINST A PERSON U/S. 158BD OF THE ACT I.E. A PERSON IN WHOSE CASE SEARCH WAS NOT CONDUCTED AND ALSO ACCEPTED THAT THIS DECISION IS SQUARELY APPLICABLE IN CASE COVERED BY SECTION 153C OF THE ACT AND ALSO FURTHER DIRECTED THAT IN PENDING LITIGATION WITH REGARD TO RECORDING OF SATISFACTION NOTE U/S.158BD/153CSHOULD BE WITHDRAWN/NOTPRESSED,IF IT DOES NOT MEET THE GUIDELINES LAID DOWN BY THE HONBLE APEX COURT. IN THE CIRCUMSTANCES, IN THE INSTANT CASE, WE FIND THAT BOTH THE TWO SATISFACTIONS WHICH WERE REQUIRED TO BE RECORDED BY THE ASSESSING OFFICER AS PER PROVISIONS OF SECTION 153C, ONE IN CAPACITY AS THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE OTHER IN THE CAPACITY OF THE AO OF THE ASSESSEE ( OTHER PERSON ), BOTH ARE MISSING. HENCE, WE HAVE NO HESITATION IN HOLDING THAT THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT, IN THE INSTANT CASE, IS BAD IN LAW AND WITHOUT JURISDICTION AND CONSEQUENTLY, THE ORDERS PASSED BY THE AO U/S 153C R.W.S. 143(3) FOR ALL THE SIX ASSESSMENT YEARS UNDER CONSIDERATION ARE LIABLE TO BE CANCELLED. 13. THE LD. DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO THE PROVISIONS OF SECTION 124(3)(C) OFTHEINCOME-TAX ACT,WHICH PROVIDES THAT NO PERSONSHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER AFTER EXPIRY OF ONE MONTH FROM THE DATE OF SERVICE OF NOTICE UNDER SECTION 153C OF THE INCOME-TAX ACT OR AFTER THE COMPLETION OF ASSESSMENT, WHICHEVER IS EARLIER, TO CONTEND THAT THE CHALLENGE TO THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT, NOW AT THIS STAGES, IS NOT VALID. WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE LD. DR. FIRSTLY, THIS SECTION 124(3)(C) OF THE INCOME-TAX ACT, WAS INSERTED IN THE STATUE W.E.F. 01.06.2016, WHEREAS IN THE INSTANT CASE, THE PROCEEDINGS U/S. 153C WAS INITIATED ON 02.11.2015. MOREOVER, IN THE INSTANT APPEALS, THE JURISDICTION OF THE AO IS NOT CHALLENGED PER SE BUT THE VALIDITY OF THE ACTION OF AO TO INITIATE PROCEEDINGS U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION WHICH IS A SINE QUA NON, IS CHALLENGED. IT IS NOT THE CASE OF THE ASSESSEE THAT THE ACIT, CIRCLE-AGARTALA HAD NO JURISDICTION TO MAKE ASSESSMENT IN THE CASE OF THE ASSESSEE. FURTHER, THE ISSUE INVOLVED BEING A LEGAL ISSUE, THE SAME CAN BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL IS A SETTLED POSITION OF LAW IN VIEW OF THE DECISION OF HONBLE, WHEREIN IT HAS BEEN HELD THAT NOTHING PREVENTED THE TRIBUNAL TO CONSIDER THE QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER. WE, THEREFORE, HEREBY CANCEL THE ORDERS OF LOWER AUTHORITIES FOR ALL THE SIX ASSESSMENT YEARS UNDER CONSIDERATION AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 14. IN VIEW OF OUR ABOVE DECISION, THE ISSUE RAISED IN OTHER GROUNDS OF APPEAL HAVE BECOME INFRUCTUOUSANDTHEREFORE,THE SAMEARENOT ADJUDICATED. 3. WE AFFORD ADEQUATE OPPORTUNITY TO THE DEPARTMENT TO REBUT THIS CLINCHING FACT OF ASSESSING OFFICER HAVING NOT RECORDED A VALID SATISFACTION AS PRESCRIBED U/S 153C OF THE ACT. THERE IS NO SUCH REBUTTAL FORTHCOMING FROM THE DEPARTMENT MADE DURING THE COURSE OF HEARING. WE THEREFORE ADOPT THE ABOVE EXTRACTED DETAILED REASONING MUTATIS MUTANDIS TO QUASH THE IMPUGNED PROCEEDINGS ON ACCOUNT OF ASSESSING OFFICERS FAILURE IN NOT RECORDING A VALID SATISFACTION U/S. 153C OF THE ACT. THE IMPUGNED ASSESSMENT(S) ARE ITA NO.235-238/GAU/2017 A.YS.11-12 TO14-15 SMT., MOUMITA SAHA VS. ACIT CIR-AGARTALA PAGE7 ACCORDINGLY QUASHED. THE ASSESSEES OTHER GROUNDS ON MERITS ARE RENDERED INFRUCTUOUS 4. THESEFOUR ASSESSEESAPPEALSAREALLOWED. ORDERPRONOUNCEDINTHEOPENCOURT 12/07/2019 SD/- SD/- ( ' ) ( ' ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP ' ' - 12/07 /201 9 ' \ / COPY OF ORDER FORWARDED TO:- 1 . /ASSESSEE-SMT. MOUMITA SAHA,KASARIPATTI,AGARTALA SADAR,WEST TRIPURA-799001 2. /REVENUE-ACIT, CIRCLE-AGARTALA,TRIPURA 3. - ' ] ] ' /CONCERNEDCIT GUWAHATI 4. ] ] - / CIT (A) GUWAHATI 5. ' ' ' , ] \ ' \ ' , ' ' / DR,ITAT,GUWAHATI 6. ' [ /GUARDFILE. BYORDER/ , /TRUECOPY/ SR. PRIVATE SECRETARY(ONTOUR) ] \ ' \ ' ,
