Bezawada Hariprasada Rao, Hyderabad V. THE DICIT, Visakhapatnam

ITA 401/VIZ/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0235 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-06-2014

Judgement Text

ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , ,, , . . . . , , , , % % % % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER . .. ./ // / I.T.A.NO.400/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) G. KOTESWARA RAO HYDERABAD VS. DCIT CENTRAL CIRCLE-1 VISAKHAPATNAM [ PAN: AGDPG 1141R ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.401/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) B. HARIPRASADA RAO HYDERABAD VS. DCIT CENTRAL CIRCLE - 1 VISAKHAPATNAM [ PAN: AAQPD8958C ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.402/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) N. VINOD KUMAR HYDERABAD VS. DCIT CENTRAL CIRCLE - 1 VISAKHAPATNAM [ PAN: AEYFN 2111F ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 2 . .. . / // / I.T.A.NO.403/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) ARIKATLA RAMANAIH HYDERABAD VS. DCIT CENTRAL CIRCLE-1 VISAKHAPATNAM [ PAN: APVPA 9224N ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.404/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) GOTTIPATI ANJANEYULU HYDERABAD VS. DCIT CENTRAL CIRCLE - 1 VISAKHAPATNAM [ PAN: AGVPG6128J ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.405/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09 ) CHERUKURI RAMBABU HYDERABAD VS. DCIT CENTRAL CIRCLE - 1 VISAKHAPATNAM [ PAN: AKWPC8696G ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.406&407/VIZAG/2014 ( / ASSESSMENT YEAR : 2008-09&2009-10 ) GALLA RAMAKRISHNAIAH HYDERABAD VS. DCIT CENTRAL CIRCLE - 1 VISAKHAPATNAM [ PAN: ACXPG7327F ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 3 , / / APPELLANT BY : SHRI SAMUEL NAGADESHI, AR -., / / RESPONDENT BY : SMT. D. KOMALI KRISHNA, DR / 3 / DATE OF HEARING : 29.09.2015 / 3 / DATE OF PRONOUNCEMENT : 29.10.2015 / O R D E R PER BENCH: THESE APPEALS BY DIFFERENT ASSESSEES ARE FILED AGA INST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME-TAX (APPE ALS)-I, HYDERABAD AND PERTAIN TO ASST. YEAR 2008-09 AND 2009-10. SINC E, THE FACTS ARE IDENTICAL AND ISSUE INVOLVED IS COMMON IN THESE APP EALS, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF BY THIS COM MON ORDER FOR THE SAKE OF CONVENIENCE. 1. BRIEF FACTS EXTRACTED FROM ITA.NO. 406/VIZ/2014 IS THAT THERE WAS A SEARCH OPERATIONS U/S.132 IN THE PREMISES OF SRI. N .SURYANARAYANA REDDY AND IN THE OFFICE PREMISES OF M/S SAI LAKSHMI TOWNSHIP PVT. LTD., VISAKHAPATNAM AND SURVEY OPERATIONS IN ITS BRANCH O FFICES ON 22/08/2008. DURING THE COURSE OF SEARCH, CERTAIN IN CRIMINATING DOCUMENTS WERE SEIZED AND AS PER THE SEIZED DOCUMEN TS, IT WAS NOTICED THAT THE ASSESSEE ALONG WITH OTHERS HAVE INVESTED A N AMOUNT OF RS. 230 LACS FOR PURCHASE OF LANDS SITUATED AT SINGAVARAM V ILLAGE, DENKADA ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 4 MANDAL, VIJAYANAGARAM DISTRICT MEASURING 14 ACRES 8 1 CENTS AND GIVEN TO M/S SAI LAKSHMI TOWNSHIP PVT LTD., FOR DEVELOPME NT AND MARKETING. DURING THE COURSE OF SEARCH PROCEEDINGS, THE ASSESS EES WERE SUMMONED BY THE DEPUTY DIRECTOR OF INCOME-TAX (INV) , VISAKHAPATNAM. IN RESPONSE TO SUMMONS, THE ASSESSEE APPEARED ON 26 -9-2008 AND HIS STATEMENT WAS RECORDED. DURING THE COURSE OF INVEST IGATION PROCEEDINGS, BEFORE THE DDIT(INV) TO A SPECIFIC QUESTION THE ASS ESSEE HAD AGREED THAT HE ALONG WITH OTHER ASSOCIATES HAVE INVESTED A N AMOUNT OF RS. 230 LACS FOR PURCHASE OF 14.81 ACRES LANDS AND FURNISHE D THE SOURCE FOR INVESTMENTS TO THE EXTENT OF RS. 206 LACS AND THE B ALANCE WAS ADMITTED AS UNEXPLAINED INVESTMENTS. THE DDIT(INV) UNIT II I(2), COMPLETED THE INVESTIGATION AND FORWARD A REPORT TO THE ASSESSING OFFICER. 2. THE AO, BASED ON THE REPORT OF THE DDIT(INV) UN IT III(2), WAS OF THE OPINION THAT THE ASSESSEE HAVE MADE INVESTMENTS OF RS. 230 LACS IN THE PREVIOUS YEAR, RELEVANT TO ASSESSMENT YEAR 2008 -09 AND ADMITTED UNEXPLAINED INVESTMENTS OF RS. 24 LACS BEFORE DDIT( INV), THEREFORE, THERE IS AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR 2008-09 WITHIN THE MEANING OF SECTION 147, WHI CH NEEDS TO BE BROUGHT TO TAX. THEREFORE, ISSUED A NOTICE UNDER SE CTION 148 DATED 29-1-2010 TO REOPEN THE ASSESSMENT. IN RESPONSE TO NOTICE U/S 148, THE ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 5 ASSESSEE HAS FILED RETURN OF INCOME. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICE U/S 143( 2) WAS ISSUED ON 4-11-2010 WHICH WAS DULY SERVED ON THE ASSESSEE. IN RESPONSE TO NOTICE, THE ASSESSEE HAS FILED NECESSARY DETAILS. T HE AO HOWEVER, DID NOT ACCEPT THE EXPLANATION OFFERED BY THE ASSESSEE AND COMPLETED THE ASSESSMENT. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) AND CHALLENGED THE VALIDITY OF ASSESSMENT MADE U/S 143(3), R.W.S.147 AND ALSO CONTESTED THE ISSUE ON MERITS. BEFORE LD. CIT(A), THE ASSESSEE QUESTIONED THE VALIDITY OF RE- OPENING OF ASSESSMENT ON THE GROUND THAT THE ASSESSMENT ORDER PASSED U/S 143(3), R.W.S. 147 IS BAD IN LAW, AS THE ASSESSMENT IS FRAM ED CONSEQUENT TO SEARCH PROCEEDINGS CANNOT BE REOPENED U/S 147, BUT, ASSESSMENT CAN BE DONE ONLY U/S 153A OF THE ACT. THEREFORE, ASSESS MENT ORDER PASSED U/S 143(3),R.W.S. 147 IS BAD IN LAW AND LIABLE TO B E QUASHED. HOWEVER, THE CIT(A), DID NOT ADJUDICATED THE ISSUE OF REOPEN ING OF ASSESSMENT, BUT UPHELD THE ASSESSMENT ORDER ON MERITS AND DISMI SSED THE ASSESSEE APPEAL. AGGRIEVED BY THE CIT(A) ORDER, THE ASSESSEE IS IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) TO THE EXTENT CONFIRMING ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 6 THE ORDER OF THE ASSESSING OFFICER UNDER SECTION 14 3(3) READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 IS ERRONEOUS IN LAW AND FACTS OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND FACTS OF THE CASE, IN DIRECTING THE ADDITION OF RS. 62,95,000/- AS UNEXPLAINED INVESTMENT DESPITE THE SAME IS FULLY EX PLAINED WITH REFERENCE TO THE ALL INGREDIENTS AS TO THE IDENTITY, CREDIT W ORTHINESS AND GENUINENESS OF THE SAME AS REQUIRED BY LAW BY PRODUCING CREDIBL E AND VERIFIABLE EVIDENCES AND AS SUCH THE ADDITION MADE BY THE ASSE SSING OFFICER IS PURELY ON SURMISES AND CONJECTURES. 3. THE APPELLANT CRAVE LEAVE TO ADD TO/ALTER/SUBSTI TUTE/DELETE/MODIFY ALL OR ANY OF THE ABOVE GROUNDS. 4. THE LD. AR, AT THE TIME OF HEARING SUBMITTED TH AT IN THIS CASE, THE ASSESSMENT WAS FRAMED CONSEQUENT TO A SEARCH OPERAT ION U/S 132 OF THE ACT, THEREFORE ASSESSMENT ORDER PASSED U/S 143(3), R.W.S.147IS BAD IN LAW AND LIABLE TO BE QUASHED. THE AR FURTHER SUBMIT TED THAT THE AO HAS NO JURISDICTION TO ISSUE NOTICE U/S148 TO RE-OPEN T HE ASSESSMENT IN THE CASE OF A PERSON, WHERE SEARCH IS CONDUCTED U/S 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISIT IONED UNDER SECTION 132A AFTER THE 31 ST DAY OF MAY 2003, THEREFORE, THE ONLY OPTION AVAILA BLE TO THE ASSESSING OFFICER IS TO ISSUE NOTICE U/S 153 C AND ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS I MMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THE AR FURTHER SU BMITTED THAT IN THIS CASE, THE ASSESSMENT IS REOPENED BASED ON THE SEARC H PROCEEDINGS IN THE CASE OF THIRD PERSON, WHERE CERTAIN DOCUMENTS B ELONGS TO ASSESSEE WERE SEIZED WHICH SHOWS INVESTMENTS BY THE ASSESSEE IN LANDS. HE ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 7 FURTHER ARGUED THAT BASED ON THE SAID SEIZED DOCUME NTS, THE DDIT(INV) SUMMONED THE ASSESSEE AND RECORDED HIS STATEMENT AN D FORWARDED A REPORT TO THE ASSESSING OFFICER. THEREFORE, IN THE LIGHT OF THE ABOVE, HE SUBMITS THAT ACCORDING TO SECTION 153C, ANY BOOKS O F ACCOUNT OR OTHER DOCUMENTS SEIZED OR REQUISITIONED PERTAINS TO A PER SON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNTS OR DOCUMENTS SHALL BE HANDED OVER TO THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESS ING OFFICER SHALL PROCEED TO ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A O F THE ACT. THE AR FURTHER SUBMITS THAT IN THIS CASE SEARCH WAS CONDUC TED ON 22-8-2008 AND THE ASSESSMENT YEAR 2008-09 FALL WITHIN THOSE S IX ASSESSMENT YEARS AS REFERRED TO IN SECTION 153A, THEREFORE, THE AO H AS ERRED IN ISSUE OF NOTICE U/S 148 AND COMPLETE THE ASSESSMENT U/S 143( 3), R.W.S. 147. THEREFORE, THE ASSESSMENT ORDER PASSED U/S 147 HAS NO LEGS TO STAND IN THE EYES OF LAW AND THE SAME SHOULD BE QUASHED. 5. REGARDING MERITS OF THE CASE, THE LD. AR ARGUED THAT THE ASSESSING OFFICER HAS MADE ADDITIONS TOWARDS INVESTMENTS IN P URCHASE OF LANDS AS UNEXPLAINED INVESTMENTS DESPITE FURNISHING RELEVANT DETAILS AND VERIFIABLE & CREDITABLE SOURCES FOR THE INVESTMENTS . THE AR SUBMITTED ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 8 THAT THE ASSESSEE HAS GOT RETIREMENT BENEFITS OF RS . 29 LACS AND THE SAID AMOUNT WAS INVESTED IN PURCHASE OF LANDS AND THE BA LANCE AMOUNT WAS UNSECURED LOANS TAKEN FROM FAMILY MEMBERS AND FILED THE NECESSARY EVIDENCES. THE ASSESSING OFFICER ALLEGATION IS THAT THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS ARE NOT PROVED IS UNJUSTIFIED AS THE ASSESSEE HAS FILED THE DETAILS OF SOURCES OF INVEST MENTS BY FILING CONFIRMATION LETTERS FROM THE PARTIES FROM WHOM UNS ECURED LOANS WERE TAKEN ALONG WITH THEIR PAN NUMBERS. THE AR FURTHER SUBMITTED THAT THE ASSESSEE HAD EXPLAINED SOURCES TO THE EXTENT OF RS. 206 LACS WITH COGENT MATERIALS BEFORE THE DDIT(INV) AND ACCEPTED THE BALANCE AMOUNT OF RS. 24 LACS AS UNEXPLAINED INVESTMENTS, W HICH IS EVIDENT FROM THE STATEMENT RECORDED DURING THE POST SEARCH PROCE EDINGS. DESPITE PROVING THE SOURCE FOR INVESTMENTS, THE AO CONSIDER ED THE ENTIRE INVESTMENT AS UNEXPLAINED WHICH IS CONTRARY TO THE EVIDENCES FILED BEFORE THE INVESTIGATION OFFICER. THE AR FURTHER SU BMITTED THAT THE ASSESSEE HAS TAKEN UNSECURED LOANS FROM PARTIES WHO ARE AGRICULTURISTS AND THE ASSESSEE HAS FURNISHED COPIES OF THE DOCUME NTS AND OTHER PROOF AS TO IDENTITY AND CREDITWORTHINESS OF THE CREDITOR S. THE ASSESSEE HAS ALSO PRODUCED CONFIRMATION LETTERS FROM THE RESPECT IVE CREDITORS, THEIR BANK STATEMENTS, PATTADAR PASSBOOKS EVIDENCING THE OWNERSHIP OF AGRICULTURAL LANDS AND THE PASS BOOKS ISSUED BY THE TOBACCO BOARD, A ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 9 STATUTORY BOARD CREATED BY THE GOVT. OF INDIA AS EV IDENCE OF RECEIPT OF AGRICULTURAL INCOME. THE ASSESSING OFFICER FAILED T O GIVE AN IOTA OF EXPLANATION HOW THESE DOCUMENTS CANNOT MEET THE CRE DIBLE EVIDENCE, WITHOUT EVEN A FAIR INQUIRY FROM HIS SIDE. THUS, TH E ASSESSING OFFICER CANNOT ALLEGE THAT THE ASSESSEE HAS NOT PRODUCED CR EDIBLE EVIDENCE. THE AR FURTHER SUBMITTED THAT THE ONUS CAST UPON THE AS SESSEE TO EXPLAIN THE CREDITS BY PROVIDING IDENTITY, CREDITWORTHINESS AND CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION. ONCE, THE INITIAL BURDEN IS PROVED THEN, THE BURDEN SHIFTS TO THE ASSESSING OFF ICER TO PROVE OTHERWISE. THEREFORE, FOR THE REASONS STATED ABOVE HE URGED TO SET ASIDE THE CIT(A) ORDER AND DELETE THE ADDITIONS MADE BY T HE ASSESSING OFFICER. THE AR RELIED UPON THE PLETHORA OF CASE LAWS IN SUP PORT OF HIS ARGUMENTS. 6. THE DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAN D, STRONGLY SUPPORTED THE ORDERS OF ASSESSING OFFICER AND CIT(A ) AND URGED TO UPHELD THE CIT(A) ORDER. THE DR FURTHER SUBMITTED T HAT THE ASSESSING OFFICER IS RIGHTLY REOPENED THE ASSESSMENT U/S 147, BECAUSE IN THIS CASE THERE WAS NO DIRECT SEARCH ACTION U/S 132 IN ASSESS EE OWN CASE, BUT ONLY A CONSEQUENTIAL PROCEEDING HAS BEEN TAKEN UP C ONSEQUENT TO SEARCH IN ANOTHER CASE THEREFORE, THERE IS NO NECES SITY OF INVOKING ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 10 PROVISIONS OF SECTION 153A. REGARDING MERITS OF THE CASE, THE DR ARGUED THAT THE ASSESSEE FAILED TO FURNISH PROOF FOR SOURC E OF INVESTMENTS BEFORE THE ASSESSING OFFICER AS WELL AS CIT(A) WHICH IS EV IDENT FROM THE CONDUCT OF THE ASSESSEE. THE DR FURTHER SUBMITTED T HAT THE ASSESSEE DID NOT SUBSTANTIATE THE SOURCES FOR INVESTMENTS BY FIL ING CREDIBLE EVIDENCES SUCH AS IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE DR FURTHER SUBMITTED THAT JUST BY FILING PROOF OF IDENTITY AND PROOF OF HOLDING LAND IS NOT SUFFICIENT TO PROVE THE UNEXPLA INED CREDITS. IN THIS CASE, THE ASSESSEE EXCEPT, FILING SOME DOCUMENTS SU CH AS PATTADAR PASS BOOKS AND CONFIRMATION LETTERS DID NOT PROVE THE CA PACITY OF THE CREDITOR WITH SUBSTANTIAL EVIDENCE. THEREFORE THE ADDITIONS MADE BY THE ASSESSING OFFICER SHOULD BE CONFIRMED. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE FACTUAL MATRIX OF THE CASE IS THAT THERE WAS A SEARCH ACTIO N U/S 132 IN THE PREMISES OF SRI. N.SURYANARAYANA REDDY AND OTHERS. DURING THE COURSE OF SEARCH, CERTAIN INCRIMINATING DOCUMENTS WERE SEI ZED FROM THE PREMISES OF M/S SAI LAKSHMI TOWNSHIP PVT. LTD., VIS AKHAPATNAM, WHICH INDICATES THAT THE ASSESSEE ALONG WITH OTHERS HAVE INVESTED AN AMOUNT OF RS. 230 LACS FOR PURCHASE OF LANDS. CONSEQUENT T O SEARCH, DURING THE POST SEARCH PROCEEDINGS THE DDIT(INV), SUMMONED THE ASSESSEE. THE ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 11 ASSESSEE APPEARED BEFORE THE DDIT(INV) AND HIS STAT EMENT WAS RECORDED. THE ASSESSEE ADMITTED BEFORE THE DDIT(INV ) THAT HE HAS SOURCE FOR INVESTMENTS TO THE EXTENT OF RS. 206 LAC S AND THE BALANCE AMOUNT OF RS. 24 LACS WAS DECLARED AS UNEXPLAINED I NVESTMENT. THE ASSESSING OFFICER, BASED ON THE ASSESSEE STATEMENT ISSUED NOTICE U/S 148 TO REOPEN THE ASSESSMENT AND COMPLETED THE ASSE SSMENT U/S 143(3), R.W.S. 147. THE ASSESSEE CONTENTION IS THAT THE ASSESSMENT CANNOT BE REOPENED U/S 147 BUT, THE ASSESSING OFFIC ER CAN ISSUE NOTICE U/S 153C R.W.S. 153A AND PROCEED TO ASSESS OR REASS ESS THE TOTAL INCOME OF EACH OF ASSESSMENT YEAR FALLING WITHIN SIX ASSES SMENT YEARS AS REFERRED TO IN SECTION 153A. 8. NOW, THE QUESTION BEFORE US IS (I) WHETHER THE A SSESSING OFFICER IS RIGHT IN REOPENING THE ASSESSMENT U/S 147, WHERE TH E ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISIT IONED BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A. THE INCOME TAX ACT, 1961, BY SECTION 153A, 153B AND 153C PROVI DES FOR NEW SCHEME OF ASSESSMENT OF CASES, WHERE THE SEARCH IS TAKEN P LACE ON OR AFTER 31 ST DAY OF MAY 2003. UNTIL, INSERTION OF SECTION 153A T O 153C, THE SEARCH ASSESSMENTS WAS GOVERNED BY SEPARATE PROVISIONS OF BLOCK ASSESSMENT ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 12 UNDER SECTION 158BC AND AS PER THE SAID PROVISIONS, THE CONCEPT OF BLOCK ASSESSMENT WAS IN FORCE. THE AMENDMENT BROUGHT IN T O THE STATUE W.E.F. 1-6-2003, REPLACES THE EXISTING PROVISIONS WITH THE NEW SECTION, I.E. 153A TO 153C GOVERNED THE NEW SCHEME OF SEARCH ASSE SSMENTS, WHICH ABUNDANTLY CLEAR THAT SEARCH ASSESSMENT ARE SEPARAT E PROVISIONS GOVERNED BY THESE SECTIONS IS INDEPENDENT FROM ANY OTHER PROVISIONS OF THE ACT . 9. THE INCOME TAX ACT, 1961, BY SECTIONS 153A, 153 B AND 153C PROVIDES FOR NEW SCHEME OF ASSESSMENT OF SEARCH CAS ES WHERE THE SEARCH IS TAKEN PLACE ON OR AFTER 31 ST DAY OF MAY 2003. THE RELEVANT PROVISION 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 SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DO CUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG 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 O VER SUCH OTHER PERSON [AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH O THER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON I N ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFICER IS SATISFI ED 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.] 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 REQUISITION U NDER SECTION 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 ASSE TS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS S EIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNI SHING THE RETURN OF INCOME FOR THE ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 13 ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 13 2A 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 ISSUED TO H IM, OR (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 SERVED AND LIMI TATION OF SERVING THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS EXPIRED, 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 ASSESS OR REASSESS TOTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A. 10. SECTION 153C DEALS WITH CASES OF PERSONS OTHER THAN THE PERSONS REFERRED TO IN SECTION 153A. AS PER THE PROVISIONS OF SECTION 153C, WHERE THE ASSESSING OFFICER SATISFIED THAT ANY MONEY, BUL LION, JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR OT HER DOCUMENTS SEIZED OR REQUISITIONED BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNTS OR DOCUMEN TS SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED IN ACCORDA NCE WITH THE PROVISIONS OF SECTION 153A. THE CBDT ISSUED A CIRCU LAR NO.7 OF 2003 DATED 5-9-2003 REPORTED IN 263 ITR 62, EXPLAINED TH E NEW SCHEME OF ASSESSMENT PROCEDURE IN THE FOLLOWING MANNER: 65. THE SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES UNDER CHAPTER XIV-B BE ABOLISHED 65.1 THE EXISTING PROVISIONS OF THE CHAPTER XIV-B PROVID E FOR A SINGLE ASSESSMENT OF UNDISCLOSED INCOME OF A BLOCK PERIOD, WHICH MEANS T HE PERIOD COMPRISING PREVIOUS YEARS RELEVANT TO SIX ASSESSMENT YEARS PRECEDING THE PREV IOUS YEAR IN WHICH THE SEARCH WAS ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 14 CONDUCTED AND ALSO INCLUDES THE PERIOD UP TO THE DA TE OF THE COMMENCEMENT OF SUCH SEARCH, AND LAY DOWN THE MANNER IN WHICH SUCH INCOM E IS TO BE COMPUTED. 65.2 THE FINANCE ACT, 2003 HAS PROVIDED THAT THE PROVISI ONS OF THIS CHAPTER SHALL NOT APPLY WHERE A SEARCH IS INITIATED UNDER SECTION 132 , OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER 31ST MAY, 2003 BY INSERTING A NEW SECTION 158BI IN THE INCOME-TAX ACT . 65.3 FURTHER THREE NEW SECTIONS 153A, 153B AND 153C HAVE BEEN INSERTED IN THE INCOME-TAX ACT TO PROVIDE FOR ASSESSMENT IN CASE OF SEARCH OR MAKING REQUISITION. 65.4 THE NEW SECTION 153A PROVIDES THE PROCEDURE FOR COM PLETION OF ASSESSMENT WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER 3 1ST MAY, 2003. IN SUCH CASES, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH, WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUI SITION WAS MADE UNDER SECTION 132A. 65.5 THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSESSMENT OR REASSESSMENT, IF AN Y, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS P ENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTI ON 132A, AS THE CASE MAY BE, SHALL ABATE. IT IS CLARIFIED THAT THE APPEAL, REVISION OR RECTIFICATION PROCEEDINGS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR R EQUISITION SHALL NOT ABATE. SAVE AS OTHERWISE PROVIDED IN THE PROPOSED SECTION 153A, SE CTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASS ESSMENT OR REASSESSMENT MADE UNDER SECTION 153A. IT IS ALSO CLARIFIED THAT ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153A SHALL BE SUBJECT TO INTEREST, PENALTY AND PROS ECUTION, IF APPLICABLE. IN THE ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN AS SESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. 65.6 THE NEW SECTION 153B PROVIDES FOR THE TIME-LIMIT FO R COMPLETION OF SEARCH ASSESSMENTS. IT PROVIDES THAT THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT IN RESPECT OF EACH ASSESSMENT YEAR, FA LLING WITHIN SIX ASSESSMENT YEARS UNDER SECTION 153A WITHIN A PERIOD OF TWO YEARS FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UND ER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED. 65.7 THIS SECTION ALSO PROVIDES THAT ASSESSMENT IN RESPE CT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH I S CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A SHALL BE COM PLETED WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAS T OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, WAS EXECUTED. 65.8 IT ALSO PROVIDES THAT IN COMPUTING THE PERIOD OF LI MITATION FOR COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT, THE PERIOD DURING WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT; OR T HE PERIOD COMMENCING FROM THE DAY ON WHICH THE ASSESSING OFFICER DIRECTS THE ASSESSEE TO GET HIS ACCOUNTS AUDITED UNDER SUB-SECTION (2A) OF SECTION 142 AND ENDING ON THE D AY ON WHICH THE ASSESSEE IS REQUIRED TO FURNISH A REPORT OF SUCH AUDIT UNDER THAT SUB-SE CTION, OR THE TIME TAKEN IN REOPENING THE WHOLE OR ANY PART OF THE PROCEEDING OR GIVING A N OPPORTUNITY TO THE ASSESSEE OF BEING REHEARD UNDER THE PROVISO TO SECTION 129, OR IN A C ASE WHERE AN APPLICATION MADE BEFORE THE SETTLEMENT COMMISSION UNDER SECTION 245C IS REJ ECTED BY IT OR IS NOT ALLOWED TO BE PROCEEDED WITH BY IT, THE PERIOD COMMENCING ON THE DATE ON WHICH SUCH APPLICATION IS ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 15 MADE AND ENDING WITH THE DATE ON WHICH THE ORDER UN DER SUB-SECTION (1) OF SECTION 245D IS RECEIVED BY THE COMMISSIONER UNDER SUB-SECTION ( 2) OF THAT SECTION, SHALL BE EXCLUDED. IF, AFTER THE EXCLUSION OF THE AFORESAID PERIOD, TH E PERIOD OF LIMITATION AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT OR REASSESSMENT, AS THE CASE MAY BE, IS LESS THAN SIXTY DAYS, SUCH REMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAYS AND THE PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY. 65.9 THE NEW SECTION 153C PROVIDES THAT WHERE AN ASSESSI NG OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG OR BELONGS TO A PERSON 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 ASSESSING OFFICER SHALL PROCE ED AGAINST SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSE SS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. 65.10 AN APPEAL AGAINST THE ORDER OF ASSESSMENT OR REASSE SSMENT UNDER SECTION 153A SHALL LIE WITH THE COMMISSIONER OF INCOME-TAX (APPE ALS). 65.11 CONSEQUENTIAL AMENDMENTS HAVE ALSO BEEN MADE IN SEC TIONS 132, 132B, 140A, 234A, 234B, 246A AND 276CC TO GIVE REFERENCE TO SEC TION 153A IN THESE SECTIONS. 65.12 THESE AMENDMENTS WILL TAKE EFFECT FROM 1ST JUNE, 20 03. 11. A CAREFUL STUDY OF SECTION 153A TO 153C AND ALS O THE CIRCULAR ISSUED BY THE CBDT EXPLAINING THE PROCEDURE OF ASSE SSMENT IN SEARCH CASES, IT SHOWS THAT THESE ARE SEPARATE PROVISIONS INDEPENDENT OF OTHER PROVISIONS RELATING TO REASSESSMENT, BECAUSE OF THE NON ABSTANTE CLAUSE BEGINS WITH THE SAID SECTIONS. THE LANGUAGE USED IN THESE SECTIONS, I.E. NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153 MADE IT CLEAR THAT PROVISIONS OF THESE SECTIONS ARE NOT MADE APPLICABL E TO THE ASSESSMENTS COVERED BY THE PROVISIONS OF SECTION 153A. PRIOR TO THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS A SEPARATE CHAPTER XIV B OF THE ACT, BY SECTION 158BC TO 158BE WHICH GOVERNS THE SEARCH ASS ESSMENTS WHICH IS POPULARLY KNOWN AS BLOCK ASSESSMENT. THE EARLIER PR OVISIONS PROVIDES FOR ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 16 SINGLE ASSESSMENT TO BE MADE IN RESPECT OF UNDISCLO SED INCOME OF BLOCK PERIOD CONSISTING OF 10 ASSESSMENT YEARS IMMEDIATEL Y PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH TOOK PLACE AND THE BROKEN PERIOD OF UP TO THE DATE OF SEARCH WAS ALSO INCLUDED IN THE BLOC K PERIOD. AFTER THE INTRODUCTION OF NEW SECTIONS, I.E. SECTION 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT WAS DONE WAY WITH THE NEW SCHEME OF ASSESSMENT OF SEARCH CASES WHERE THE ASSESSING OFFICER IS TO A SSESS OR REASSESS THE TOTAL INCOME OF EACH OF THE ASSESSMENT YEARS FALLIN G WITHIN THE PERIOD OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSE SSMENT YEAR IN WHICH THE SEARCH IS CONDUCTED. THEREFORE, UNDER THE NEW SCHEME, THE ASSESSING OFFICER IS REQUIRED TO EXERCISE THE NORMA L ASSESSMENT POWERS IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. FROM THESE FACTS, ONE THING IS CLEARLY EMERGED THAT BOTH I.E. EARLIER CONCEPT OF BLOCK ASSESSMENT AND THE NEW SCHEME OF ASSESSMENT I S SEPARATE PROVISIONS CREATED FOR ASSESSMENT OF SEARCH CASES W HERE THE SEARCH IS CONDUCTED U/S 132 OR REQUISITION WAS MADE U/S 132A OF THE ACT. 12. UNDER THE PROVISIONS OF SECTION 147, THE ASSESS ING OFFICER IS HAVING POWER TO RE-OPEN THE ASSESSMENT, IF HE IS OF THE OPINION THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. BE FORE DOING SO, THE ASSESSING OFFICER SHOULD SATISFY HIMSELF THAT, THER E IS MATERIAL WHICH ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 17 SUGGESTS THAT THERE IS AN ESCAPEMENT OF INCOME. THE AO CAN EXERCISE THESE POWERS WITH A REASONABLE BELIEF COUPLED WITH SOME MATERIAL WHICH SUGGEST THE ESCAPEMENT OF INCOME. ONCE THE CONDITIO NS PRECEDENT FOR ASSUMPTION OF JURISDICTION TO COMMENCE THE REASSESS MENT PROCEEDINGS, HE HAS TO CROSS THE HURDLES ATTACHED WITH REASSESSM ENT BY WAY REASONS FOR REOPENING OF ASSESSMENT, TIME LIMIT FOR ISSUE O F NOTICE AND PROVISION FOR OBTAINING SANCTION OF HIGHER AUTHORITY IN CERTA IN CIRCUMSTANCES. UNDER THE PROVISIONS OF SECTION 153A TO 153C THESE HURDLES ARE CLEARED BY USING THE NON ABSTANTE CLAUSE IN THE SAID SECTIO N. IN OTHER WORDS, UNDER THE NEW PROVISIONS OF SECTION 153A, THE AO IS NOT REQUIRED TO SATISFY THESE CONDITIONS BEFORE ISSUE OF NOTICE. TH E ONLY REQUIREMENT IS THAT THERE SHOULD BE A SEARCH ACTION U/S 132 OR BOO KS OF ACCOUNT, OTHER DOCUMENTS OR ANY OTHER ASSET ARE REQUISITIONED UNDE R SECTION 132A. THEREFORE, WE ARE OF THE OPINION THAT THOUGH, THE A SSESSING OFFICER FROM BOTH SECTIONS EMPOWERED TO TAX THE INCOME ESCAPED F ROM TAX, BOTH ARE WORKS IN A DIFFERENT SITUATIONS, I.E. SECTION 147 C OMES IN TO OPERATION WHERE THERE IS AN ESCAPEMENT OF INCOME CHARGEABLE T O TAX AND SECTION 153A COMES IN TO OPERATION WHERE THERE IS SEARCH U/ S 132. 13. UNDER THE PROVISIONS OF SECTION 153A, THE ASSES SING OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH THE RETU RNS OF INCOME FOR EACH ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 18 ASSESSMENT YEARS FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH OR RE QUISITION IS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE AFORESAID PERIOD WHICH INCLUDES DISCLOSED AND UNDISCLOSED INC OME. THEREFORE, THE NEW PROVISIONS HAS GIVEN WIDE POWERS TO THE ASSESSI NG OFFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEAR S FALLING WITHIN THE PERIOD OF THOSE SIX ASSESSMENT YEARS IMMEDIATELY PR ECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. UNDER THE NEW PROVISIONS OF SECTION 153A, THE STATUTE IS PROVIDES WIDE POWER S TO THE ASSESSING OFFICER IN RESPECT OF ASSESSMENTS ALREADY COMPLETED U/S 143(1) OR 143(3). IF SUCH ORDERS IS ALREADY IN EXISTENCE PRIO R TO THE INITIATION OF SEARCH, THE ASSESSING OFFICER IS EMPOWERED TO REOPE N THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTE OF THE UN DISCLOSED INCOME, IF ANY, FOUND DURING THE COURSE OF SEARCH. FOR THIS PU RPOSE, THE RESTRICTIONS IMPOSED ON THE ASSESSING OFFICER BY WAY OF SECTIONS 148 TO 153 TO REOPEN THE ASSESSMENT U/S 147 HAS BEEN REMOVED BY T HE NON ABSTANTE CLAUSE USED IN SECTION 153A. 14. IN THE PRESENT CASE ON HAND, ADMITTEDLY, THE AS SESSING OFFICER HAS REOPENED THE ASSESSMENT BASED ON A SEARCH CONDUCTED IN A THIRD PARTY CASE. THE AO FORMED THE OPINION BASED ON THE STATEM ENT RECORDED FROM ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 19 THE ASSESSEE, CONSEQUENT TO POST SEARCH PROCEEDINGS TAKEN UP BY THE DDIT(INV), WHICH SHOWS UNDISCLOSED INCOME WHICH IS THE VERY BASIS OF REOPENING THE ASSESSMENT. THE SEARCH IS CONDUCTED O N 22-8-2008 WHICH COMES UNDER THE ASSESSMENT YEAR 2009-10. THE ASSESS ING OFFICER REOPENED THE ASSESSMENT YEAR 2008-09, WHICH IS FALL ING WITHIN THOSE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR IN WHICH SEARCH IS CONDUCTED. THE ASSESSEE CASE FALLS WITHIN THE PROVISIONS OF SECTION 153C, AS THE INCRIMINATING DOCUMENT SEIZED IN THE CASE OF SEARCH IN ANOTHER CASE. THE ASSESSING OFFICER, ON SATISFYI NG THE ABOVE CONDITION IS UNDER OBLIGATION TO ISSUE NOTICE TO THE PERSON R EQUIRING HIM TO FURNISH THE RETURN FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS TOOK PLACE. THER EAFTER, THE ASSESSING OFFICER HAS TO ASSESS OR REASSESS THE TOTAL INCOME OF THOSE SIX ASSESSMENT YEARS. THE WORD SHALL USED IN SECTION 153A MADE IT CLEAR THAT THE ASSESSING OFFICER HAS NO OPTION, BUT TO IS SUE NOTICE AND PROCEED THEREAFTER TO ASSESS OR REASSESS THE TOTAL INCOME. IN THE INSTANT CASE, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 TO REOP EN THE ASSESSMENT. THEREFORE, IN VIEW OF THE NON-ABSTANTE CLAUSE BEGIN WITH SECTION 153A, THE ASSESSING OFFICER HAS NO JURISDICTION TO ISSUE NOTICE U/S 148 REOPEN THE ASSESSMENT OF THOSE SIX ASSESSMENT YEAR WHICH F ALLS WITHIN THE EXCLUSIVE JURISDICTION OF SECTION 153A. THOUGH, BOT H PROVISIONS OF THE ACT ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 20 EMPOWERS THE ASSESSING OFFICER TO ASSESS OR REASSES S THE INCOME ESCAPED FROM ASSESSMENT, BOTH SECTIONS ARE DEALING WITH DIFFERENT SITUATIONS. SECTION 147 COMES INTO OPERATION WHEN, THE ASSESSING OFFICER BELIEVES THAT THERE IS AN ESCAPEMENT OF INCOME CHAR GEABLE TO TAX, EITHER FROM THE RETURN ALREADY FILED OR THROUGH SOME EXTER NAL MATERIAL EVIDENCE CAME TO HIS KNOWLEDGE, WHICH SHOWS THE ESCAPEMENT O F INCOME. WHEREAS, SECTION 153A COMES INTO OPERATION WHEN THER E IS SEARCH U/S 132 OR BOOKS OF ACCOUNTS, OR ANY OTHER ASSET OR OTH ER DOCUMENTS REQUISITIONED U/S 132A. IF ASSESSING OFFICER JUSTIF IED IN PROCEEDING WITH SECTION 147 TO REOPEN THE ASSESSMENT, THEN THERE WO ULD BE NO RELEVANCE TO SECTION 153A, WHICH WAS INSERTED IN TO THE ACT T O DEAL EXCLUSIVELY WITH SEARCH CASES. THE LEGISLATORS IN THEIR WISDOM CLEAR LY SPELT OUT THE PROVISIONS OF LAW APPLICABLE TO SEARCH CASES BY USI NG THE WORD SHALL TO BEGIN WITH SECTION 153A, MADE IT MANDATORY THAT THE ASSESSING OFFICER BOUND TO ISSUE NOTICE U/S 153A OR 153C, THEREAFTER PROCEED TO ASSESS OR REASSESS THE TOTAL INCOME, WHERE SEARCH IS CONDUCTE D U/S 132 OR REQUISITION IS MADE U/S 132A. THEREFORE, IN OUR OPI NION, THE AO IS NOT JUSTIFIED IN REOPENING THE ASSESSMENT U/S 147 AND H IS ORDER IS ILLEGAL AND ARBITRARY. ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 21 15. A SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFOR E THE SPECIAL BENCH OF THIS TRIBUNAL AND THE SPECIAL BENCH HAD AN OCCASION TO DEAL WITH THE INTERPRETATION OF SECTION 153A OF THE ACT IN THE CA SE OF ALL CARGO GLOBAL LOGISTICS LTD &ORS. VS DCIT (2012) 137 ITD 287 (MUM ). THE SPECIAL BENCH AFTER CONSIDERING THE PROVISIONS OF SECTION 1 53A AND CBDT CIRCULAR HAS HELD AS UNDER. '52. THE PROVISION COMES INTO OPERATION IF A SEARCH OR REQUISITION IS INITIATED AFTER 31.5.2003. ON SATISF ACTION OF THIS CONDITION, THE AO IS UNDER OBLIGATION TO ISSUE NOTI CE TO THE PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOM E OF SIX YEARS IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE WORD USED IS 'SHALL' AND, THUS, THERE IS NO OPTION BUT T O ISSUE SUCH A NOTICE. THEREAFTER HE HAS TO ASSESS OR REASSESS T OTAL INCOME OF THESE SIX YEARS. IN THIS RESPECT ALSO, THE WORD USED IS 'SHALL' AND, THEREFORE, THE AO HAS NO OPTION BUT TO ASSES O R REASSESS THE TOTAL INCOME OF THESE SIX YEARS. THE P ENDING PROCEEDINGS SHALL ABATE. THIS MEANS THAT OUT OF SIX YEARS, IF ANY ASSESSMENT OR REASSESSMENT IS PENDING ON THE DATE OF INITIATION OF THE SEARCH, IT SHALL ABAT E. IN OTHER WORDS PENDING PROCEEDINGS WILL NOT BE PROCEEDED WIT H THEREAFTER. THE ASSESSMENT HAS NOW TO BE MADE U/S 1 53A (1)(B) AND THE FIRST PROVISO. IT ALSO MEANS THAT ON LY ONE ASSESSMENT WILL BE MADE UNDER THE AFORESAID PROVISI ONS AS THE TWO PROCEEDINGS I.E. ASSESSMENT OR REASSESSM ENT PROCEEDINGS AND PROCEEDINGS UNDER THIS PROVISION ME RGED INTO ONE. IF ASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR OTHER LEGAL PROCEEDINGS, THEN THE ABATED ASSESSMENT OR REASSESSMENT SHALL REVIVE. THI S MEANS THAT THE ASSESSMENT OR REASSESSMENT, WHICH HA D ABATED, SHALL BE MADE, FOR WHICH EXTENSION OF TIME HAS BEEN PROVIDED UNDER SECTION 153B. 53. THE QUESTION NOW IS - WHAT IS THE SCOPE OF ASSE SSMENT OR REASSESSMENT OF TOTAL INCOME U/S 153A (1) (B) AN D THE FIRST PROVISO? WE ARE OF THE VIEW THAT FOR ANSWERIN G THIS QUESTION, GUIDANCE WILL HAVE TO BE SOUGHT FROM SECT ION 132(1). IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOOKS O F ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO AC COUNT WHILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL IN COME UNDER THE AFORESAID PROVISION. SIMILAR POSITION WIL L OBTAIN IN A CASE WHERE UNDISCLOSED INCOME OR ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 22 UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENC E OF SEARCH. IN OTHER WORDS, HARMONIOUS INTERPRETATION W ILL PRODUCE THE FOLLOWING RESULTS :- A) IN SO FAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE ORIGINAL ASSESSMENT AND ASSESSMENT U/S 153A MERGE INTO ONE AND ONLY ONE ASSESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MADE SEPARATELY ON THE BASIS OF THE FINDINGS OF THE SEAR CH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECOR D OF THE A.O. B) IN RESPECT OF NON-ABATED ASSESSMENTS, THE ASSESSMEN T WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OT HER DOCUMENTS NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF SEARCH, AND UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVER ED IN THE COURSE OF SEARCH.' .. . 58. THUS, QUESTION NO.1 BEFORE US IS ANSWERED A) AS UND ER (A) IN ASSESSMENTS THAT ARE ABATED, THE A.O. RETAIN S THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION C ONFERRED ON HIM UNDER S. 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATEL Y ; 16. IN YET ANOTHER CASE, THE ITAT MUMBAI BENCH, IN THE CASE OF STATE BANK OF INDIA VS. DEPUTY COMMISSIONER OF INCOME TAX (2013) 22 ITR 609, HAD CONSIDERED THE ISSUE. THE MUMBAI BENCH AFT ER CONSIDERING THE RELEVANT SECTIONS AND CBDT CIRCULAR HAS HELD AS UND ER: 18. A PERUSAL OF SECTION 153A SHOWS THAT IT STARTS WITH A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHICH IS COVERED BY SECTIONS 139, 147, 14 8, 149, 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER 31.5.2003. THESE SECTIONS, THE APPLICABILITY OF WHI CH HAS BEEN EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS. PRIOR TO, THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS CHAPTER XIV- B OF T HE ACT WHICH ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 23 TOOK CARE OF THE ASSESSMENT TO BE MADE IN CASES OF SEARCH AND SEIZURE. SUCH AN ASSESSMENT WAS POPULARLY KNOWN AS ,,BLOCK ASSESSMENT BECAUSE THE CHAPTER PROVIDED FOR A SINGLE ASSESSMENT TO BE MADE IN RESPECT OF A PERIOD OF A B LOCK OF TEN ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEAR IN WH ICH THE SEARCH WAS MADE. IN ADDITION TO THESE TEN ASSESSMEN T YEARS, THE BROKEN PERIOD UP TO THE DATE ON WHICH THE SEARC H WAS CONDUCTED WAS ALSO INCLUDED IN WHAT WAS KNOWN AS ,, BLOCK PERIOD. THOUGH A SINGLE ASSESSMENT ORDER WAS TO BE PASSED, THE UNDISCLOSED INCOME WAS TO BE ASSESSED IN THE DIFFER ENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HAD TO BE MADE IN A SINGLE ASSESSMENT ORDER. THE BLOCK ASSESS MENT SO MADE WAS INDEPENDENT OF AND IN ADDITION TO THE NORM AL ASSESSMENT PROCEEDINGS AS CLARIFIED BY THE EXPLANAT ION BELOW SECTION 158BA(2). AFTER THE INTRODUCTION OF THE GRO UP OF SECTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASS ESSMENT CONCEPT WAS GIVEN A GO-BY. UNDER THE NEW SECTION 15 3A, IN A CASE WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR REQUISITION OF BOOKS OF ACCOUNT, DOCUMENTS OR ASSET S IS MADE UNDER SECTION 132A AFTER 31.5.2003, THE ASSESS ING OFFICER IS OBLIGED TO ISSUE NOTICES CALLING UPON TH E SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSESSMENT YE ARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. THE OTHER DIFFERENCE IS THAT THERE IS NO BROKEN PERIOD FROM THE FIRST DAY OF APRIL OF THE FI NANCIAL YEAR IN WHICH THE SEARCH TOOK PLACE OR THE REQUISITION W AS MADE AND ENDING WITH THE DATE OF SEARCH/REQUISITION . UNDER SECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE A O IS REQUIRED TO EXERCISE THE NORMAL ASSESSMENT POWERS I N RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE . 19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HAVE AL READY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NO TICE TO THE ASSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEA R FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDI NG THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOW ERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORES AID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EAR LIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROP ED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSM ENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSES SING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASS ESS THE ,,TOTAL INCOME OF THE SIX ASSESSMENT YEARS IN QUEST ION IN ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 24 SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE C AN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND T HE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESS MENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OB VIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUIS ITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROC EEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SE ARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSIN G OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO R EOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEE N REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB S ECTION (1) OF SECTION 153A OPENS. THE TIME-LIMIT WITHIN WH ICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTIO N TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTIC E TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCL UDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCR IBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECT ION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY S ECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, TH E ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESS MENTS WITHOUT ANY FETTERS, IF NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASS ESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEA RS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, TH E SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A S AYS THAT SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT F AR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULT IPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE 'SIX ASS ESSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSE SSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE TOTAL INCOME OF THE ASSESSE E IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIAT ED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SA ME ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 25 ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDI NG THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE S EARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE T OTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FO R ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH AR E PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEEDINGS A BATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETER MINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUD E BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISH ED BY THE ASSESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POS ITION THUS EMERGING IS THAT WHERE ASSESSMENT OR REASSESSM ENT PROCEEDINGS ARE PENDING COMPLETION WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE M AKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL IN COME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASES WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETE D AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE S TOTAL INCOME AND SUCH ORDERS ARE SUBSIST ING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, TH ERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OF FICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MAD E (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVI SIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 14 7, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSE SSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTI ON 153A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAP ED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO Q UESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SI MPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSE SSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH W AS INITIATED OR THE REQUISITION WAS MADE. 20. APPLYING THE RATIO OF THE ABOVE DECISIONS TO T HE FACTS OF THE PRESENT CASE, WE FIND THAT THERE IS NO DISPUTE THAT THE ORIGINAL ASSESSMENT FOR THE A.Y. 2001-02 WAS COMPLE TED ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 26 U/S 143(3) ON 13-2-2004 DETERMINING THE TOTAL INCOM E AT RS. 26354942360/-. THEREAFTER, A SEARCH AND SEIZ URE ACTION WAS INITIATED IN ASSESSEE'S CASE BY THE DEPA RTMENT ON 2-7-2005 ON WHICH DATE THE ASSESSMENT FOR THE A. Y. 2001-02 WAS NOT PENDING. THEREFORE, IN VIEW OF THE NON- OBSTINATE CLAUSE WITH WHICH SUB SECTION (1) OF SECT ION 153A OPENS, THE A.O. HAS NO JURISDICTION TO ISSUE N OTICE U/S 148 OF THE ACT IN RESPECT OF THOSE SIX ASSESSME NT YEARS WHICH FALLS WITHIN THE EXCLUSIVE JURISDICTION OF SECTION 153A OF THE ACT AND ACCORDINGLY THE A.O. WA S NOT JUSTIFIED IN ISSUING NOTICE U/S 148 ON 28-8-2006 AN D IN COMPLETING THE IMPUGNED ASSESSMENT U/S 143(3) R.W.S . 147 OF THE ACT ON 31-10-2006. THE A.O. INSTEAD OF COMPLYIN G WITH THE REQUIREMENT OF SECTION 153A PROCEEDED WITH THE PROVI SIONS OF SECTION 147/148 WHICH ARE NOT APPLICABLE IN THE ASS ESSMENT U/S 153 A OF THE ACT, THEREFORE, THE IMPUGNED ASSESSMEN T COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT IS A NULL ITY AND AS SUCH THE ASSESSMENT ORDER DTD. 31-10-2006 PASSED U/ S 143(3) R.W.S. 147 OF THE ACT IS ILLEGAL, ARBITRARY, WHOLLY WITHOUT JURISDICTION AND, HENCE, THE SAME IS QUASHED. 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO APPLYING THE RATIOS OF THE ABOVE MENTIONED DECISION S, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER, HAS NO JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT TO REOPEN THE ASSESSMENTS IN RESPECT OF THOSE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSE SSMENT YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THE PERIOD UNDER CONSIDERATION FALLS WITHIN THE EXCLUSIVE DOMAIN OF SECTION 153A. IN THE INSTANT CASE, SINCE THE ASSESSMENT IS MADE CONSEQUE NT TO SEARCH IN ANOTHER CASE, THE ASSESSING OFFICER IS BOUND TO ISS UE NOTICE U/S 153C AND THEREAFTER PROCEED TO ASSESS OR REASSESS TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER, INSTEAD OF COMPLYING WITH THE ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 27 PROVISIONS OF SECTION 153C, PROCEEDED WITH THE REAS SESSMENT UNDER SECTION 147/148 WHICH IS NOT APPLICABLE TO SEARCH C ASES. THEREFORE, THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3), R.W.S. 147 OF THE INCOME TAX ACT, 1961 IS ILLEGAL, ARBITRARY AND WITH OUT ANY JURISDICTION. HENCE, THE ASSESSMENT ORDER DATED 31-12-2010 PASSED U/S 143(3) R.W.S. 147 IS QUASHED. 18. SINCE, WE HAVE ALLOWED THE ASSESSEE GROUND ON L EGALITY OF REOPENING OF ASSESSMENT U/S 147 AND QUASHED THE ASSESSMENT OR DER, THEREFORE, WE DO NOT CONSIDER IT APPROPRIATE TO DISCUSS THE OT HER GROUNDS RAISED BY THE ASSESSEE ON MERITS OF THE CASE. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE REJECTED. 19. SINCE, THE FACTS OF THE ABOVE LEGAL GROUND TAKE N BY THE ASSESSEES IS SAME IN ITA.NO.400/VIZ/2014, 401/VIZ/2014, 402/VIZ/ 2014, 403/VIZ/2014, 404/VIZ/2014, 405/VIZ/2014 AND 407/VI Z/2014, IN VIEW OF OUR FINDINGS IN ITA.NO. 406/VIZ/2014, WE HOLD THAT THE IMPUGNED ASSESSMENT ORDERS PASSED U/S 143(3), R.W.S. 147 OF THE INCOME TAX ACT, 1961 IS ILLEGAL, ARBITRARY AND WITHOUT ANY JURISDIC TION. HENCE, THE ASSESSMENT ORDER DATED 31-12-2010 PASSED U/S 143(3) R.W.S. 147 IN ALL THE ABOVE CASES IS QUASHED. ITA NOS.400 TO 407/VIZAG/2014 G. KOTESWARA RAO & OTHERS, HYDERABAD 28 20. SINCE, WE HAVE ALLOWED THE ASSESSEE GROUND ON L EGALITY OF REOPENING OF ASSESSMENT U/S 147 AND QUASHED THE ASSESSMENT OR DER, THEREFORE, WE DO NOT CONSIDER IT APPROPRIATE TO DISCUSS THE OT HER GROUNDS RAISED BY THE ASSESSEE ON MERITS OF THE CASE. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE REJECTED. 21. IN THE RESULT, THE ASSESSEES APPEALS IN ITA.NO . 400/VIZ/2014,401/VIZ/2014, 402/VIZ/2014, 403/VIZ/20 14, 404/VIZ/2014, 405/VIZ/2014, 406/VIZ/2014 AND ITA.NO.407/VIZ/2014 ARE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29 TH OCT15. SD/- SD/- ( (( ( . .. . ) ) ) ) ( (( ( . . . . ) ) ) ) ( (( ( V. DURGA RAO ) )) ) ( (( ( G. MANJUNATHA) / // / JUDICIAL MEMBER / // / ACCOUNTANT MEMBER /VISAKHAPATNAM: 6 / DATED : 29.10.2015 VG/SPS / - 7 / COPY OF THE ORDER FORWARDED TO :8 1. , / THE APPELLANT SHRI SAMUEL NAGADESI, CA, 408, SRI RAMAKRISHNA TOWERS, BESIDES IMAGE HOSPITALS, AMEERPET, HYDERABAD -500073 . 2. -., / THE RESPONDENT THE DCIT CENTRAL CIRCLE-1, VISAKHAPATNAM 3. ; / THE CIT(CENTRAL), HYDERABAD 3. ; () / THE CIT(A)-I, HYDERABAD 4. -, , / // / DR, ITAT, VISAKHAPATNAM 5 . . . . / GUARD FILE / BY ORDER // TRUE COPY // @A ( SR.PRIVATE SECRETARY ) , / // / ITAT, VISAKHAPATNAM