ACIT, New Delhi V. Sh. Empire Casting Pvt. Ltd., New Delhi

ITA 4018/DEL/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3323 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-03-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Search and seizure; Document seized; Question of law; Block assessment; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 80IB; 147; 148; 263; 132; 139

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH B, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 4018/DEL./2011 ASSESSMENT YEAR: 2003-04 A.C.I.T., CENTRAL CIRCLE 2, NEW DELHI. (APPELLANT) VS. EMPIRE CASTING PVT. LTD., H-17, UDYOG NAGAR, PEERA GARHI CHOWK, NEW DELHI. PAN AABCE 0380K (RESPONDENT) C.O. NO. 207/DEL./2012 (IN ITA NO. 4018/DEL./2011) ASSESSMENT YEAR: 2003-04 EMPIRE CASTING PVT. LTD., H-17, UDYOG NAGAR, PEERA GARHI CHOWK, NEW DELHI. (APPELLANT) VS. A.C.I.T., CENTRAL CIRCLE 2, NEW DELHI. (RESPONDENT) REVENUE BY MS. RACHNA SINGH, CIT/DR ASSESSEE BY SH. ANIL JAIN, C.A. ORDER PER L.P. SAHU, A.M.: THE APPEAL AT THE INSTANCE OF REVENUE AND CROSS-OBJ ECTION AT THE INSTANCE OF THE ASSESSEE ARISE OUT OF THE ORDER OF THE LD. CIT(A)-III, NEW DELHI DATED 7.6.2011 PERTAINING TO ASSESSMENT YEAR 2003-0 4 ON THE FOLLOWING GROUNDS : DATE OF HEARING 14.11.2017 DATE OF PRONOUNCEMENT 21 .11.2017 ITA NO. 4018/DEL/2011 & CO 207DEL./2012 2 GROUNDS IN REVENUES APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT PROCEEDINGS INI TIATED U/S 153C OF THE INCOME TAX ACT, 1961 ARE BARRED BY LIMITATION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THERE WAS NO PHYSICAL HANDOVER OF SEIZED MATERIAL IN THIS CASE AS THE ASSESSING OF FICER OF THE MAIN PARTY AND THE ASSESSING OFFICER OF THE OTHER PERSON IN THIS C ASE ARE THE SAME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT IN THE ABSENCE OF ANY MATERIAL FOUND DURING SEARCH, NO ADDITION/ DISALLOWANCE CAN BE MAD E IN THE ASSESSMENT U/S 153 A OR 153C OF THE ACT IN A CASE WHERE THE AS SESSMENT IS NOT PENDING. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT (A) HAS NOT CORRECTLY INTERPRETED THE PROVISIONS OF SECTION 153 C R.W.S. 153A OF THE INCOME TAX ACT, 1961. 5. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARIN G OF THE APPEAL. GROUNDS OF CROSS-OBJECTION: 1. THAT IN VIEW OF THE FACTS & CIRCUMSTANCES OF TH E CASE AND IN LAW THE CIT (A) HAS ERRED IN NOT HOLDING THAT THE NOTICE ISSUED U/S 153C AND THE ASSESSMENT ORDER PASSED U/S 153C/143(3) ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THAT THE DOCUMENTS FOUND DURING SEARCH PROCEEDIN GS, AS REFERRED TO IN THE SATISFACTION NOTE, DO NOT BELONG TO ASSESSEE. HENCE, THE NOTICE ISSUED U/S 153C, BASED ON SAID DO CUMENTS, IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 3. THAT ADMITTEDLY, AS RECORDED IN THE SATISFACTION NOTE, NO SEIZED ITA NO. 4018/DEL/2011 & CO 207DEL./2012 3 DOCUMENT RELATED TO THE RELEVANT ASSESSMENT YEAR WA S FOUND AND NO ADDITION HAS BEEN MADE ON THE BASIS OF THE SEIZE D PAPER REFERRED IN THE SAID SATISFACTION NOTE AND NO INCRIMINATING MATERIAL WAS FOUND WHICH CONTAIN SATISFACTION TOWARDS ANY UNDISC LOSED INCOME HENCE THE NOTICE ISSUED U/S 153C AND ADDITION/DISAL LOWANCES MADE ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 4. THAT THE ADDITIONS ON ACCOUNT OF UNSECURED LOAN & INCREASE IN SHARE CAPITAL, DISALLOWANCE OF EXP. AND DISALLOWANC E OF DEDUCTION U/S 80IB ARE ILLEGAL, UNJUST, BAD IN LAW AND ARE HI GHLY EXCESSIVE AND THE SAME CAN NOT BE JUSTIFIED. 5. THAT THE RESPONDENT RESERVES THE RIGHT TO ADD/AME ND/ALTER THE GROUNDS OF CROSS OBJECTION. 2. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT ON M/S WINGS PHARMACEUTICAL PVT . LTD. AND ITS GROUP CASES ON 14.2.2008. THE ASSESSEE WAS PART OF M/S WINGS P HARMACEUTICAL PVT. LTD. GROUP AND NOTICE U/S 153A WAS ISSUED ON 13.1.2009. THE ASSESSMENT ORDER DATED 23.12.2009 PASSED U/S 143(3)/153C OF THE INCO ME TAX ACT MENTIONS THAT NOTICE U/S 153A WAS ISSUED ON 13.01.2009 INADV ERTENTLY IN THE CASE OF THE ASSESSEE WHICH WAS DROPPED LATER WITH PRIOR APPROVA L. THE AO FURTHER OBSERVED THAT DURING VERIFICATION OF THE SEIZED MAT ERIAL, DOCUMENTS OF M/S WINGS PHARMACEUTICAL PVT. LTD. AS WELL AS DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND ACCORDINGLY, PROCEEDINGS U/ S 153C OF THE ACT WERE INITIATED IN THE CASE OF THE ASSESSEE COMPANY. IN RESPONSE TO THE NOTICE U/S 153C, THE ASSESSEE FILED ITS RETURN OF INCOME ON 11 .11.2009 DECLARING INCOME ITA NO. 4018/DEL/2011 & CO 207DEL./2012 4 OF RS. 60,268/- AS WAS DECLARED IN THE ORIGINAL RE TURN OF INCOME FILED ON 24.11.2003. ASSESSMENT YEARS 2002-03 TO 2007-08 WE RE COVERED U/S 153C OF THE INCOME TAX ACT AND THE ASSESSMENT FOR ASSESSMEN T YEAR 2003-04 I.E. THE YEAR UNDER CONSIDERATION WAS COMPLETED AT RS. 28,35 ,120/- U/S 143(3) R/W SECTION 153C OF THE ACT. 2.1 IN APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE C HALLENGED THE VALIDITY OF THE PROCEEDINGS INITIATED U/S 153C AS WELL AS THE A SSESSMENT ON MERITS. THE ASSESSEE ALSO TOOK AN ADDITIONAL GROUND BEFORE THE LD. CIT (A) THAT THE INITIATION OF PROCEEDINGS FOR THE YEAR UNDER CONSID ERATION WAS TIME-BARRED. THE LD. CIT (A) ALLOWED THE ADDITIONAL GROUND OF TH E ASSESSEE AND HELD THAT THE INITIATION OF PROCEEDINGS FOR ASSESSMENT YEAR 2 003-04 WERE BARRED BY LIMITATION AND, THEREFORE, THE ASSESSMENT ORDER PAS SED U/S 153C WAS A NULLITY AND THE ASSESSING OFFICER WAS DIRECTED TO DELETE TH E ADDITIONS. NOW AGGRIEVED, THE DEPARTMENT HAS APPROACHED THE ITAT BY WAY OF TH IS APPEAL AND THE ASSESSEE HAS ALSO FILED THE C.O. SUPPORTING THE ORD ER OF THE LD. CIT (A). 3. LD. CIT DR, AT THE OUTSET, PLACED RELIANCE ON TH E ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE DATE OF SEARCH WAS 1 4.2.2008 AND SINCE THE ASSESSING OFFICER OF THE SEARCHED PARTY AS WELL AS THE ASSESSEE WAS THE SAME, THERE WAS NO PHYSICAL HANDING OVER OF THE SEIZED DO CUMENTS AND, THEREFORE, ALTHOUGH THE RECORDING OF SATISFACTION WAS DONE ON 2.11.2009, THE ASSESSMENT ITA NO. 4018/DEL/2011 & CO 207DEL./2012 5 YEARS FALLING WITHIN THE PURVIEW OF SECTION 153C WO ULD BE SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH I.E. 14.2.2008 A ND NOT 2 ND NOVEMBER, 2009 AS HAD BEEN HELD BY THE LD. CIT(A). IT WAS SUBMITT ED THAT PROVISIONS OF SECTION 153C AND SECTION 153A(1)(B) HAVE TO BE READ TOGETHE R AND, THEREFORE, ASSESSMENT YEAR 2003-04 WOULD ALSO BE COVERED U/S 1 53C. 3.1 THE LD. CIT DR SUBMITTED THAT THERE WAS NO AMBI GUITY IN THE SAID PROVISION AND THE ISSUE HAD BEEN CONFUSED BY RELATI NG IT TO THE DATE OF HANDING OVER OF THE DOCUMENTS RATHER THAN BY RELATING IT TO THE DATE OF SEARCH. IT WAS ALSO SUBMITTED THAT THE DOMINANT PURPOSE OF INTERPR ETATION OF ANY STATUTORY PROVISION WAS TO ASCERTAIN THE INTENTION OF THE LEG ISLATURE BUT THE NEED FOR INTERPRETATION WOULD ARISE ONLY WHEN THE WORDS USED IN THE STATUTE WERE AMBIVALENT AND DID NOT MANIFEST THE INTENTION OF TH E LEGISLATURE. IT WAS ALSO SUBMITTED THAT THE RULE OF INTERPRETATION WOULD COM E INTO PLAY ONLY IF THERE WAS ANY DOUBT WITH REGARD TO THE EXPRESS LANGUAGE U SED. THE LD. CIT DR REFERRED TO CIRCULAR NO. 3/2006 DATED 27.2.2006 WHI CH CONTAINS EXPLANATORY NOTES TO FINANCE ACT 2005 AND SUBMITTED THAT AFTER THE AMENDMENT BROUGHT IN SECTIONS 153B AND 153C RETROSPECTIVELY FROM 1 ST JUNE 2003, THE POSITION WHICH EMERGES IS:- I) PERIOD OF ASSESSMENT YEAR FROM THE END OF THE FINAN CIAL YEAR IN WHICH BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS SEIZ ED OR REQUISITIONED ARE HANDED OVER, THE AO HAVING JURISD ICTION OVER ITA NO. 4018/DEL/2011 & CO 207DEL./2012 6 SUCH OTHER PERSON SHALL BE AVAILABLE FOR THE PURPOS ES OF MAKING ASSESSMENT OR REASSESSMENT U/S 153A; II) ANY ASSESSMENT OR REASSESSMENT IN ANY ASSESSMENT YE AR FALLING WITHIN A PERIOD OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE PENDING ON THE DATE ON WHICH BOOKS OF ACCOUNT OR ASSETS SEIZED OR REQUISITIONED ARE RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON SHALL ABATE. 3.2 IT WAS FURTHER SUBMITTED THAT AS PER EXPLANATOR Y NOTES, THE DATE HAS TO BE RECKONED FROM THE DATE ON WHICH THE ASSESSING OFFIC ER HAVING JURISDICTION OVER SUCH OTHER PERSON RECEIVES THE BOOKS OF ACCOUNTS O R DOCUMENTS AND SINCE IN THE PRESENT CASE, THE ASSESSING OFFICER OF THE SEAR CHED PERSON AS WELL AS THE ASSESSEE WAS THE SAME, THE DATE OF SEARCH WILL BE T HE DATE ON WHICH THE DOCUMENTS/BOOKS OF ACCOUNTS WERE SEIZED. THE LD. CI T DR ALSO SUBMITTED THAT THE CIRCULARS ISSUED BY THE CBDT AS WELL AS THE FIN ANCE MINISTERS SPEECH BEFORE THE PARLIAMENT WHILE INTRODUCING A BILL CAN BE RELIED UPON TO THROW LIGHT ON THE OBJECT AND PURPOSE OF A PARTICULAR PROVISION . IT WAS SUBMITTED THAT IN THE LIGHT OF THE EXPLANATORY NOTES AS REFERRED TO B Y HER, JURISDICTION U/S 153C WAS NOT TIME BARRED FOR THE YEAR UNDER CONSIDERATIO N, AS WAS HELD ERRONEOUSLY BY THE LD. CIT (A). LD. CIT D.R. ALSO PLACED RELIA NCE ON THE FOLLOWING JUDICIAL PRECEDENTS IN SUPPORT OF HER SUBMISSIONS:- I) APOORVA EXTRUSION PVT. LTD. IN I.T.A. 3308/D/2010 ( ITAT DELHI) ITA NO. 4018/DEL/2011 & CO 207DEL./2012 7 II) ANIL KUMAR BHATIA 24 TAXMANN.COM 98 (DELHI HIGH COU RT) III) FILATEX INDIA LTD. IN I.T.A. NO. 269/2014 (DELHI HI GH COURT) IV) RAJ KUMAR ARORA IN I.T.A. NO. 56/2011 (ALLAHABAD HI GH COURT) 3.3 LD. CIT DR ALSO PLACED RELIANCE ON THE ORDER OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION AND ALSO IN THE C ASE SARVESH KUMAR AGARWAL. SHE ALSO REFERRED AT LENGTH TO THE SATISFACTION NOT E OF THE ASSESSING OFFICER DATED 2.11.2009 AND SUBMITTED THAT IN THE PRESENT A PPEAL, INCRIMINATING MATERIAL HAD BEEN FOUND DURING THE COURSE OF SEARCH AND, THEREFORE, THE FACTS OF THE CASE WERE DISTINGUISHABLE FROM THE FACTS OF THE CASE IN KABUL CHAWLA (DELHI HIGH COURT). IT WAS ALSO SUBMITTED THAT THE CASE LAWS RELIED UPON BY THE LD. CIT (A) WERE DISTINGUISHABLE ON FACTS. SHE ALS O SOUGHT TO PLACE ON RECORD WRITTEN SUBMISSIONS, WHICH READ AS UNDER:- SUBMISSIONS OF REVENUE THE REVENUE REITERATES THAT THE PROVISIONS OF SECTI ON 153C UNAMBIGUOUSLY STATE THAT 153C. ASSESSMENT OF INCOME OF ANY OTHER PERSON.- (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SEC TION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OF FICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG S 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 REQUISITIO NED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH 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 ITA NO. 4018/DEL/2011 & CO 207DEL./2012 8 153(1) (B) CLEARLY STATES THAT IN SUCH A CASE THE A SSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO F URNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF IN COME (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTA L INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS. FROM A BARE READING OF THE PROVISIONS OF 153 A & 15 3 C IT IS CLEAR THAT THE BASIC PRE-REQUISITE TO ISSUE NOTICE UNDER SECTION 153C IS THAT THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUAB LE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION : TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A. IF THE A.O IS SO SATISFIED HE SHALL ASSESS AND REASSESS SUCH INCOME. IN SUCH A CASE THE A.O SHALL ASSESS OR REASSESS R ASSESSMENT YEARS IMMEDIATELY PRECEDING T HE ASSESSMENT YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION MADE: SO THE A.O IS EMPOWERED BY THE INCOME TAX ACT AND IT S PROVISIONS UNDER SECTION: - 153A TO ASSESS THE 'TOTAL INCOME' OF THE ASSESSEE WHICH INCLUDES UNDISCLOSED INCOME. THE REVENUE'S CLAIM THAT ASSESSMENT U/S 153A/153C NE ED NOT NECESSARILY BE BASED ON INCRIMINATING MATERIAL FINDS SUPPORT FR OM VARIOUS DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT OF DELHI/ OTHER H IGH COURTS AND HON'BLE ITAT DELHI. HIGHLIGHTS OF THE CASE OF ANIL KUMAR BHATIA 24 TAXMA NN.COM 98 DATED 07.08.2012 OF HON'BLE DELHI HIGH COURT JURISDICTION OF ASSESSING OFFICER U/S 153A AND PR OCEDURE THEREON 'A PERUSAL OF SECTION 153A SHOWS THAT IT STARTS WIT H A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHIC H IS COVERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER 31.5.200' 3. THESE SECTIONS, THE APPLICABILITY OF WHICH HAS BEEN ITA NO. 4018/DEL/2011 & CO 207DEL./2012 9 EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSES SMENT PROVISIONS. PRIOR TO, THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS CHAPTER XIV-B OF THE ACT WHICH 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 PRO VIDED FOR A SINGLE ASSESSMENT TO BE MADE IN RESPECT OF A PERIOD OF A BLOCK OF TEN ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEAR IN WH ICH THE SEARCH WAS MADE. IN ADDITION TO THESE TEN ASSESSMENT YEARS , THE BROKEN PERIOD UP TO THE DATE ON WHICH THE SEARCH WAS CONDU CTED 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 DIFFERENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HAD TO BE MADE IN A SINGLE ASSESSMENT ORDER. TH E BLOCK ASSESSMENT SO MADE WAS INDEPENDENT OF AND IN ADDITI ON TO THE NORMAL ASSESSMENT PROCEEDINGS AS CLARIFIED BY THE E XPLANATION BELOW SECTION 158BA (2). AFTER THE INTRODUCTION OF THE GROUP OF SECTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASS ESSMENT CONCEPT WAS GIVEN A GO-BY. UNDER THE NEW SECTION 153A, IN A CASE WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR REQUISITIO N OF BOOKS OF ACCOUNT, DOCUMENTS OR ASSETS IS MADE UNDER SECTION 132A AFTER 31.5.2003, THE ASSESSING OFFICER IS OBLIGED TO ISSU E NOTICES CALLING UPON THE SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. THE OTHER DIFFERENCE IS THAT THERE IS NO BROKE N PERIOD FROM THE FIRST DAY OF APRIL OF THE FINANCIAL YEAR IN WHICH T HE SEARCH TOOK PLACE OR THE REQUISITION WAS MADE AND ENDING WITH THE DAT E OF SEARCH/REQUISITION. UNDER SECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE AO IS REQUIRED TO EXERCISE THE NO RMAL ASSESSMENT POWERS IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE.' (PARA 18) ASSESSING OFFICER IS BOUND TO ISSUE NOTICES TO TH E ASSESSEE TO FURNISH RETURNS FOR 6 ASSESSMENT YEARS. ASSESSING OFFICER I S EMPOWERED TO ASSESS OR RE-ASSESS THE TOTAL INCOME INCLUDING UNDI SCLOSED INCOME OF THE ASSESSEE 'UNDER THE PROVISIONS OF SECTION 153A, AS WE HAVE A LREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT ITA NO. 4018/DEL/2011 & CO 207DEL./2012 10 YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WA S MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASS ESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARL IER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 15 3A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSES S OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUEST ION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONL Y ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEAR S, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX.'(PARA 19) ASSESSING OFFICER IS EMPOWERED TO REOPEN THE PROCEE DINGS U/S 143(L)(A) OR U/S 143(3) TO RE-ASSESS THE TOTAL INCO ME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY. THE ASSESSING OFFICER IS ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME O F AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING RE- ASSESSMENTS 'A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO B E ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESP ECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1), OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN E XISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF TH E SEARCH/REQUISITION OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AN D REASSESS TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF A NY, UNEARTHED THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICT ION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN RE MOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF S ECTION 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MA DE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTIC E TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED F OR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS AL SO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH A LL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS ITA NO. 4018/DEL/2011 & CO 207DEL./2012 11 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 REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE.'(PAR A 20) THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY TH E UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIAT ED 'NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND PROVISO TO SUB SECTION (1) OF SE CTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT FA R TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE ASSESSM ENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CO NSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'T OTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SA ME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF TH E SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION O F THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB S ECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSES SMENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATIO N OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEE DINGS ABATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PAS S ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL I NCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLAR ED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UN DISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT WHERE ASSESSMENT OR REASSESSMENT P ROCEEDINGS ARE PENDING COMPLETION WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE MAKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASES WHERE T HE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETE D AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL ITA NO. 4018/DEL/2011 & CO 207DEL./2012 12 INCOME AND SUCH ORDERS ARE SUBSISTING AT THE TIME W HEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF AN Y ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREAD Y MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE ORDERS P ASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESS MENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDIN GS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH W AS INITIATED OR THE REQUISITION WAS MADE.'(PARA 21) 'IN THE LIGHT OF OUR DISCUSSION, WE FIND IT DIFFICU LT TO UPHOLD THE VIEW OF THE TRIBUNAL EXPRESSED IN PARA 9.6 OF ITS ORDER THAT SINCE THE RETURNS OF INCOME FILED BY THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDERATION BEFORE THE SEARCH TOOK PLACE WERE PROCESSED UNDER S ECTION 143(L)(A) OF THE ACT, THE PROVISIONS OF SECTION 153A CANNOT BE I NVOKED. THE ASSESSING OFFICER HAS THE POWER UNDER SECTION 153A TO MAKE ASSESSMENT FOR ALL THE SIX YEARS AND COMPUTE THE TO TAL INCOME OF THE ASSESSEE, INCLUDING THE UNDISCLOSED INCOME, NOTWITH STANDING THAT THE ASSESSEE FILED RETURNS BEFORE THE DATE OF SEARCH WH ICH STOOD PROCESSED UNDER SECTION 143(1) (A).'(PARA 22) HIGHLIGHTS OF THE CASE OF FILATEX INDIA LTD., ITA N O. 269/2014 AND CM NO. 10077/2014 DATED 14.07.2014 OF HON'BLE DELHI HIGH C OURT THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE O F FILATEX INDIA LTD. (269/2014 AND CM NO. 10077/2014) BY HON'BLE DELHI H IGH COURT VIDE ORDER DATED 14-07-2014. THE QUESTION OF LAW REFERRED BEFORE HON'BLE DELHI HI GH COURT IN THIS CASE IS AS UNDER:- 'WHETHER THE TRIBUNAL ERRED ON FACTS AND IN LAW IN N OT HOLDING THAT RE- ITA NO. 4018/DEL/2011 & CO 207DEL./2012 13 COMPUTATION OF BOOK PROFIT, DE-HORS ANY MATERIAL FO UND DURING THE COURSE OF SEARCH, IN THE ORDER PASSED UNDER SECTION 153A OF THE ACT WAS WITHOUT JURISDICTION, BEING OUTSIDE THE SCOPE OF PR OCEEDINGS UNDER THAT SECTION' THE HON'BLE DELHI HIGH COURT HAS DECIDED IN PARA 2 THAT 'THE CONTENTION RAISED BY THE APPELLANT-ASSESSEE IS THAT THE ADDITION, WHICH IS THE SUBJECT MATTER OF QUESTIONS NO.(II) AND (HI), W AS/IS NOT JUSTIFIED IN THE ASSESSMENT ORDER UNDER SECTION 153A, AS NO INCR IMINATING MATERIAL WAS FOUND CONCERNING THE ADDITION UNDER SECTION 115 JB OF THE ACT. THE SAID ARGUMENT HAS NO SUBSTANCE AND HAS TO BE REJECT ED. UNDER SECTION 153A OF THE ACT, THE ADDITIONS NEED NOT BE RESTRICT ED OR LIMITED TO THE INCRIMINATING MATERIAL, WHICH WAS FOUND DURING THE COURSE OF SEARCH. THERE CANNOT BE MULTIPLE ASSESSMENTS, ONCE SECTION 1 53A OF THE ACT IS APPLICABLE. SECTION 153A (1) POSTULATES ONE ASSESSM ENT, COMPUTING THE TOTAL INCOME OF SIX ASSESSMENT YEAR. IMMEDIATELY PR ECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. TOTAL INCOME IS A SSESSED OR REASSESSED N THE ORDER UNDER SECTION 153A OF THE AC T AND THE SECTION APPLIES NOTWITHSTANDING SECTIONS 139, 147, 148, 149 , 151 AND 153 OF THE ACT .' FURTHER HON'BLE DELHI HIGH COURT HAS CLARIFIED THE DECISION OF CHETAN DASS, LAXMAN DASS DECIDED EARLIER BY OBSERVING IN P ARA 3 THAT 'LEARNED COUNSEL FOR THE APPELLANT ASSESSEE HAS RELIED ON TH E DECISION OF THIS COURT IN CIT VS. CHETAN DASS LAXMAN CLASS, (2012) 254 CTR ( DEL) 392. THE SAID DECISION NOTICES INSERTION OF SECTION 153A BY FINAN CE ACT, 2003, ITS PURPOSE AND OBJECT, HAD THE EARLIER PROCEEDINGS FOR BLOCK ASSESSMENT UNDER CHAPTER XIVB, THE DIFFICULTIES AND THE LEGAL ISSUES WHICH HAD ARISEN ON THE DIFFERENCE BETWEEN REGULAR ASSESSMENT AND BLOCK ASSESSMENT. IT IS IN THIS CONTEXT THAT IN THE CASE OF CHETAN DASS LAXMAN DASS (SUPRA), THE DIVISION BENCH, [TO WHICH ONE OF US (SANJIV KHANNA, J) WAS A PARTY], HAS OBSERVED THAT SECTION 153A (1) (B ) PROVIDES FOR ASSESSMENT OR RE-ASSESSMENT OF THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. IT WAS EMPHASI ZED THAT THERE IS NO CONDITION IN THIS SECTION THAT THE ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF TH E SEARCH OR OTHER POST SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A SSESSING OFFICER, RELATED TO THE EVIDENCE FOUND. SUBSEQUENT OBSERVATI ON TO THE EFFECT THAT THE ASSESSMENT UNDER SECTION 153A SHOULD NOT BE ARB ITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL, IS BASICALLY ITA NO. 4018/DEL/2011 & CO 207DEL./2012 14 CLARIFICATORY THAT THE ASSESSMENT UNDER SECTION 153 A EMANATES AND STARTS ON THE FOUNDATION OF THE SEARCH, WHICH IS TH E JURISDICTIONAL PRECONDITION.' AFTER THAT HON'BLE DELHI HIGH COURT HAS DISCUSSED T HE CASE OF ANIL KUMAR BHATIA DECIDED BY HON'BLE DELHI HIGH COURT EARLIER AND QUOTED FROM PARA 18 & 22 OF THIS ORDER (MENTIONED SUPRA) AND FINELY DECIDED IN PARA 4 OF THIS ORDER THAT AFTER EXAMINATION OF SECTION 153A THE SU BMISSION/CONTENTION OF THE APPELLANT HAS NO MERIT. HIGHLIGHTS OF THE CASE OF RAJ KUMAR ARORA, ITA NO. 56/2011 DATED OF HON'BLE ALLAHABAD HIGH COURT THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE OF RAJ K UMAR ARORA, ITA NO. 56/2011 BY HON'BLE ALLAHABAD HIGH COURT VIDE ORDER DATED 11-07-2014. THE QUESTION OF LAW REFERRED BEFORE HON'BLE ALLAHABA D HIGH COURT IN THIS CASE IS AS UNDER:- 'WHETHER ITAT HAS ERRED IN LAW IN DISMISSING THE APP EAL OF THE DEPARTMENT AND HOLDING THAT NO ADDITION CAN BE MADE FOR GIFT I N ASSESSMENT COMPLETED UNDER SECTION 153A UNLESS SOME INCRIMINATING MATERI AL WAS FOUND DURING THE COURSE OF SEARCH, THUS IGNORING THE PROVISIONS OF LAW AS CONTAINED IN SECTION 153A WHICH REQUIRED THE ASSESSING OFFICER T O ASSESSEE OR REASSESS THE TOTAL INCOME AS DEFINED IN SECTION 2(45) OF THE INCOME TAX ACT; 1961. WHETHER THE ORDER OF THE ITAT IS PERVERSE IN AS MUCH AS IT HAS IGNORED THE PROVISIONS OF LAW AS CONTAINED IN PROVISO (C) OF SU B-SEC(L) 153A WHICH REQUIRED THE ASSESSING OFFICER TO ASSESSEE OR REASS ESS THE TOTAL INCOME.' HON'BLE ALLAHABAD HIGH COURT HAS DECIDED AT THE END IN FAVOUR OF REVENUE WHICH IS REPRODUCED AS UNDER:- 'CONSEQUENTLY WE ARE OF THE OPINION THAT IN CASES W HERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETE D AND ASSESSMENT ORDERS HAVE BEEN PASSED, WHICH WERE SUBSISTING WHEN THE SEARCH WAS MADE, THE ASSESSING OFFICER WOULD BE COMPETENT TO R EOPEN THE ASSESSMENT PROCEEDING ALREADY MADE AND DETERMINE THE TOTAL INC OME OF THE ASSESSEE. ITA NO. 4018/DEL/2011 & CO 207DEL./2012 15 THE ASSESSING OFFICER, WHILE EXERCISING THE POWER UN DER SECTION 153A OF THE ACT, WOULD MAKE ASSESSMENT AND COMPUTE THE TOTAL IN COME OF THE ASSESSEE INCLUDING THE UNDISCLOSED INCOME, NOTWITHSTANDING T HE ASSESSEE HAD FILED THE RETURN BEFORE THE DATE OF SEARCH WHICH STOOD PR OCESSED UNDER SECTION 143(L)(A) OF THE ACT. IN THE LIGHT OF THE AFORESAID , THE REASONS GIVEN BY THE TRIBUNAL THAT NO MATERIAL WAS FOUND DURING THE SEARC H CANNOT BE SUSTAINED SINCE WE HAVE HELD THAT THE ASSESSING OFF ICER HAS THE POWER TO REASSESS THE RETURNS OF THE ASSESSEE NOT ONLY FOR T HE UNDISCLOSED INCOME, WHICH WAS FOUND DURING THE SEARCH OPERATION BUT ALS O WITH REGARD TO THE MATERIAL THAT WAS AVAILABLE AT THE TIME OF THE ORIG INAL ASSESSMENT. WE FIND THAT THE TRIBUNAL DISMISSED THE APPEAL WHILE RELYING UPON THE DECISION OF A COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ANIL KUMAR BHATIA VS. ACIT (2010) 1 ITR (TRIB.) 484 (DELHI). WE FIND THAT THE SA ID DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL WAS SET ASIDE BY TH E DELHI HIGH COURT IN COMMISSIONER OF INCOME TAX VS. ANIL KUMAR BHATIA (2012) 24 TAXMANN.COM 98(DELHI). WE FIND THAT THE TRIBUNAL ONL Y DISMISSED THE APPEAL ON THIS LEGAL ISSUE AND HAD NOT CONSIDERED T HE MATTER ON MERITS. FOR THE REASONS STATED AFORESAID, THE TRIBUNAL HAS COMMI TTED AN ERROR IN DISMISSING THE APPEAL OF THE REVENUE. WE, ACCORDING LY, SET ASIDE THE ORDER OF THE TRIBUNAL AND REMIT THE MATTER BACK TO THE TRIB UNAL TO RECONSIDER THE APPEAL OF THE DEPARTMENT AFRESH ON MERIT. THE QUESTI ON OF LAW IS ANSWERED ACCORDINGLY.' HIGHLIGHTS OF THE CASE OF CANARA HOUSING DEVELOPMEN T COMPANY, ITA NO. 38/2014 DATED 25.07.2014 OF HON'BLE KARNATAKA H IGH COURT - THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE O F CANARA HOUSING DEVELOPMENT COMPANY, ITA NO. 38/2014 BY HON'BLE KAR NATAKA HIGH COURT VIDE ORDER DATED 25-07-2014. IN THIS CASE THE HON'BLE COURT HAS ALSO OBSERVED THAT THE DECISION OF HON'BLE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTIC LTD. DATED 06/07/2012 IS NOT CORRECT. THE QUESTION OF LAW REFERRED BEFORE HON'BLE KARNATAK A HIGH COURT IN THIS CASE IS AS UNDER:- 'WHEN ONCE THE PROCEEDINGS UNDER SECTION 153A OF TH E ACT IS INITIATED, WHETHER THE COMMISSIONER OF INCOME TAX CAN INVOKE TH E POWER UNDER SECTION 263 OF THE ACT TO REVIEW THE ORDER OF ASSES SMENT PASSED BY THE ASSESSING AUTHORITY ?' ITA NO. 4018/DEL/2011 & CO 207DEL./2012 16 AT THE END THE HON'BLE COURT HAS DECIDED IN PARA 11 THAT 'THE TRIBUNAL HAS PROCEEDED ON THE ASSUMPTION BY VIRTUE OF THE JU DGMENT OF THE SPECIAL BENCH OF THE MUMBAI, THE SCOPE OF ENQUIRY U NDER SECTION 153A IS TO BE CONFIRMED ONLY TO THE UNDISCLOSED INCOME UNEA RTHED DURING SEARCH AND IF THERE IS ANY OTHER INCOME WHICH IS NOT THE S UBJECT MATTER OF SEARCH, THE SAME CANNOT BE TAKEN INTO CONSIDERATION . THEREFORE, THE REVISIONAL AUTHORITY CAN EXERCISE THE POWER UNDER S ECTION 263. IN THE ENTIRE SCHEME OF 153A OF THE ACT, THERE IS NO PROHI BITION FOR THE ASSESSING AUTHORITY TO TAKE NOTE OF SUCH INCOME. ON THE CONTR ARY, IT IS EXPRESSLY PROVIDED UNDER SECTION 153A OF THE ACT THE ASSESSIN G OFFICER SHALL ASSESSEE OR REASSESS THE 'TOTAL INCOME' OF SIX ASSE SSMENT YEARS WHICH MEANS THEY SAID TOTAL INCOME INCLUDES INCOME WHICH WAS RETURNED IN THE EARLIER RETURN, THE INCOME WHICH WAS UNEARTHED DURI NG SEARCH AND INCOME WHICH IS NOT THE SUBJECT MATTER OF AFORESAID TWO INCOME. IF THE COMMISSIONER HAS COME ACROSS ANY INCOME THAT THE AS SESSING AUTHORITY HAS NOT TAKEN NOTE OF WHILE PASSING THE EARLIER ORD ER, THE SAID MATERIAL CAN BE FURNISHED TO THE ASSESSING AUTHORITY AND THA T ASSESSING AUTHORITY SHALL TAKE NOTE OF THE SAD INCOME ALSO IN DETERMINI NG THE TOTAL INCOME OF THE ASSESSEE WHEN THE EARLIER PROCEEDINGS ARE REOPE NED AND THAT INCOME ALSO SHALL BECOME THE SUBJECT MATTER OF SAID PROCEE DINGS.' RECENTLY SAME VIEW IS ALSO EXPRESSED BY HON'BLE DEL HI BENCH IN THE CASE OF APOORVA EXTRUSION PVT. LTD., ITA NO. 3308/DEL/2010 FOR THE A.Y. 2002-03, VIDE ORDER DATED 09.10.2014. THE RELEVANT PORTION IS MENTIONED AS BELOW:- '5. IN ORDER TO ANSWER WHETHER THE QUASHING OF THE INITIATION OF ASSESSMENT FOR THE YEAR UNDER CONSIDERATION ON THE GIVEN COUNT IS VALID OR NOT, WE NEED TO CONSIDER THE MANDATE OF THE RELEVANT PART OF SUB -SECTION (1) OF SECTION 153C, WHICH READS AS UNDER:- ' NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHER E THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISI TIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH OTHER PERSON AND ISSUE SUCH OTHER PERSON IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 153A' ITA NO. 4018/DEL/2011 & CO 207DEL./2012 17 6. A BARE PERUSAL OF THE ABOVE PROVISION INDICATES THA T WHERE THE AO IS SATISFIED THAT ANY ' BOOKS OF ACCOUNT OR DOCU MENT ' APART FROM MONEY, BULLION OR JEWELLERY ETC., SEIZED FROM THE P ERSON SEARCHED BELONG TO A PERSON OTHER THAN THE PERSON SEARCHED U/S 153A , THEN SUCH BOOKS OF ACCOUNT OR DOCUMENTS ETC. SHALL BE HANDED OVER TO T HE AO HAVING JURISDICTION OVER SUCH OTHER PERSON AND THE AO OF S UCH OTHER PERSON SHALL PROCEED TO ' ASSESS OR REASSESS INCOME OF SUCH OTHE R PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THUS , THE EFFECT OF SUB- SECTION (1) OF SECTION 153C IS THAT WHERE ALL THE N ECESSARY INGREDIENTS OF THIS SUB-SECTION ARE SATISFIED, THE MATTER OF MAKIN G ASSESSMENT OR RE- ASSESSMENT GOES BACK TO SECTION 153A. SINCE THE ASS ESSMENT OR REASSESSMENT OF SUCH OTHER PERSON HAS TO BE DONE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, LET US EXAMINE THE PRES CRIPTION OF THE RELEVANT PARTS OF SECTION 153A(1), WHICH IS AS UNDE R 'NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SEC TION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSO N WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OT HER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER T HE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (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 ASS ESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE ( B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETT ING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR RE ASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE A SSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE:' 7. ON CIRCUMSPECTION OF THE CLAUSE (A) OF THE ABOVE PR OVISION, IT IS AMPLY CLEAR THAT THE AO SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASS ESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS AS REFERRED TO IN CLAUS E (B) AND, THE LATTER CLAUSE, PROVIDES THAT THE ASSESSING OFFICER SHALL ' ASSESSS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEAR IMMEDIATELY PRE CEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SE ARCH IS CONDUCTED OR REQUISITION IS MADE.' WHEN WE READ SECTION 153C IN CONJUNCTION WITH SECTION 153A OF THE ACT, THE POSITION WHICH FOLLOWS IS THAT IF THE BOOKS OF ACCOUNT OR DOCUMENT ETC. BELONGING TO ASSESSMENT OR RE-ASSESSMENT OF SUCH ITA NO. 4018/DEL/2011 & CO 207DEL./2012 18 OTHER PERSON IS REQUIRED T O BE MADE OF 'SIX ASSESS MENT YEARS IMMEDIATELY PRECEDING ASSESSMENT YEARS RELEVANT TO PREVIOUS YEA R' IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. SECTION 153C I S A JURISDICTIONAL PROVISION, WHICH ON THE FULFILMENT OF THE STIPULATE D CONDITIONS, ENABLES THE MAKING OF ASSESSMENT OR REASSESSMENT OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THERE IS NATURA LLY NO SEPARATE PROVISION UNDER THE ACT NOR THERE DO ANY FOR MAKING THE ASSESSMENT OF SUCH OTHER PERSON FOR THE REASON OF THE BODILY LIFTING O F THE PROVISIONS OF SECTION 153A IN SECTION 153C OF THE ACT FOR THIS PURPOSE. S INCE SECTION 153A SPECIALLY PROVIDES FOR ASSESSMENT OR RE-ASSESSMENT OF SIX- ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH, AND IN VIEW OF SECTIO N 153C ADOPTING THE PROVISIONS OF SECTION 153A, THERE CAN BE NO QUESTIO N OF RESTRICTING THE JURISDICTION OF THE AO TO ANY LESSER NUMBER OF YEAR S FOR WHICH THE INCRIMINATING MATERIAL IS FOUND. WHEN WE READ SECTI ON 153C IN A HOLISTIC MANNER, IT BECOMES EVIDENT THAT THE TRIGGERING POIN T FOR ASSUMING JURISDICTION ON THE PERSON OTHER THAN THE PERSON SE ARCHED U/S 153C IS THE FINDING OF ANY MONEY, BULLION, JEWELLERY OR BOOKS O F ACCOUNT OR DOCUMENT FROM THE PERSON SEARCHED. ONCE ANY MONEY, BULLION, JEWELLERY OR BOOKS OF ACCOUNT OR DOCUMENT SEIZED OR REQUISITIONED FROM TH E PERSON SEARCHED ARE FOUND TO BE BELONGING TO THE OTHER PERSON, THEN, TH E ASSESSMENT OR REASSESSMENT OF SUCH OTHER PERSON IS TO BE NECESSAR ILY COMPLETED IN TERMS OF SECTION 153A. WHICH IN NO UNCERTAIN TERMS REFERS TO SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. FURTHER, THE USE OF THE WORD 'SHALL' IN SECTION 153A IMMEDIATELY BEF ORE CLAUSE (A) HAS LEFT NOTHING TO DOUBT THAT THE ASSESSMENT IS REQUIRED TO BE MADE FOR ALL THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. AS THE LEGISLATURE HAS NOT MADE THE MAKING OF SUCH ASSESSMENT OR REASSESSMENT FOR ALL THE SIX ASSESSMENT YEARS SUBJE CT TO ANY CONDITION OF FINDING OF ANY INCRIMINATING MATERIAL OR OTHERWISE, WE ARE UNABLE TO ACCEPT SUCH CONTENTION OF THE LD. AR WHICH, IF ACCE PTED, WOULD LEAD TO LEGISLATING A PROPOSITION WHICH IS OBVIOUSLY NOT TE NABLE. 8. WE CAN REJECT THE CONTENTION OF THE ASSESSEE FROM A NOTHER ANGLE AS WELL. IT IS RELEVANT TO NOTE THAT THE EXPRESSION 'B OOKS OF ACCOUNT OR DOCUMENTS' EMPLOYED IN SECTION 153C (1) IS ACCOMPAN IED BY THE WORKS 'MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICL ES OR THINGS'. IT IS AXIOMATIC THAT 'MONEY OR JEWELLERY' ETC. BELONGING TO THE OTHER PERSON FOUND FROM THE PREMISES OF THE PERSON SEARCHED CANN OT PER SE BE RELATED TO ITA NO. 4018/DEL/2011 & CO 207DEL./2012 19 A PARTICULAR ASSESSMENT YEAR. IF WE TEST THE CONTEN TION OF THE LD. AR ON THE TOUCHSTONE OF 'MONEY OR JEWELLERY' ETC., BELONGING TO THE ASSESSEE FOUND FROM THE PERSON SEARCHED, THEN IT WILL BE VERY DIFF ICULT AT THE STAGE OF INITIATION OF ASSESSMENT OR REASSESSMENT OF THE OTH ER PERSON TO RELATE IT TO A PARTICULAR YEAR, THERE BY JEOPARDIZING THE WHOLE SC HEME OF ASSESSMENT PURSUANT TO SEARCH OR REQUISITION. TO A SPECIFIC QUE RY IT WAS CANDIDLY ACCEPTED BY THE LD. AR THAT IN ITEMS OF SECTION 153 A. THE INITIATION OF ASSESSMENT OR REASSESSMENT FOR ALL THE SIX ASSESSME NT YEARS IN THE CASE OF PERSON SEARCHED IS NOT DEPENDENT ON THE FINDINGS OF ANY INCRIMINATING MATERIAL. IT IS BEYOND OUR COMPREHENSION THAT WHEN SUCH A COURSE OF ACTION IS PERMISSIBLE U/S 153A IN THE CASE OF PERSON SEARC HED, THEN HOW CAN THERE BE ANY BAR ON THE INITIATING OR MAKING OF ASSESSMEN T OR REASSESSMENT FOR SOME OF THE YEARS OF OTHER PERSON, MORE SO. WHEN SE CTION 153C('L) HAS BEEN EXPRESSLY MADE TO ACCORD WITH THE PROVISIONS OF SEC TION 153A. WE, THEREFORE, JETTISON THE CONTENTION URGED ON BEHALF OF THE ASSESSEE AS SANS MERIT. RECENTLY SAME VIEW IS ALSO EXPRESSED BY HON'BLE ITA T BANGLORE BENCH IN THE CASE OF NANDINI DELUX VS ACIT, 54 TAXMANN.COM 162 VIDE ORDE R DATED 05.12.2014. THE RELEVANT PORTION OF PARA 6.3. 9 OF THE ORDER IS MENTIONED AS BELOW:- 'RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT CO. (SUPRA), WE HOLD THAT ONCE THE ASSESSMENT IS REOPENED, THE ASSE SSING OFFICER CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RETURN, ANY UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH AND ALSO ANY OTHE R INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OF INCOME OR WHICH IS NOT UNEARTHED IN THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT, IN O RDER TO FIND OUT AND DETERMINE WHAT IS THE 'TOTAL INCOME' OF EACH YEAR A ND THEN PASS THE ORDER OF ASSESSMENT. THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE AT S. NOS. 2 TO 5 ARE ACCORDINGLY DISMISSED FOR ALL FOUR ASSESSMENT YEARS 2005-06 TO 2008- 09.' SAME VIEW IS ALSO EXPRESSED BY HON'BLE HIGH COURT O F ANDHRA PRADESH IN THE CASE OF GOPAL LAI BHADRUKA VS. DCIT 346 ITR 106 D ATED 15.12.2011, WHERE HON'BLE HIGH COURT HAS HELD AS UNDER (PAGE NO .17 TO 21 OF PAPER BOOK NO. 3): THE QUESTION OF LAW AGITATED BEFORE THE TRIBUNAL WAS WHE THER, FOR THE PURPOSE OF COMPUTING INCOME UNDER SECTION 153A/153C , THE ASSESSING OFFICER WAS REQUIRED TO CONFINE HIMSELF ONLY TO THE MATERIAL FOUND DURING ITA NO. 4018/DEL/2011 & CO 207DEL./2012 20 THE COURSE OF SEARCH OPERATIONS. THE TRIBUNAL HELD A GAINST THE ASSESSEES. HELD THAT BY VIRTUE OF SECTION 158B-I THE VARIOUS P ROVISIONS OF CHAPTER XIV- B ARE MADE INAPPLICABLE TO PROCEEDINGS UNDER SECTIO N 153A/153C. THE EFFECT OF THIS IS THAT WHILE THE PROVISIONS OF CHAP TER XIV-B LIMIT THE INQUIRY BY THE ASSESSING OFFICER TO THOSE MATERIALS FOUND D URING THE SEARCH AND SEIZURE OPERATION, NO SUCH LIMITATION IS FOUND INSO FAR AS SECTION 153A/153C IS CONCERNED. THEREFORE, IT FOLLOWS THAT FOR THE PUR POSES OF SECTION 153A/153C THE ASSESSING OFFICER CAN TAKEN INTO CONS IDERATION MATERIAL OTHER THAN WHAT WAS AVAILABLE DURING THE SEARCH AND SEIZURE OPERATION FOR MAKING AN ASSESSMENT OF THE UNDISCLOSED INCOME OF THE ASSESSEE.' RECENTLY HON'BLE ITAT HYDERABAD BENCH IN THE CASE OF SMT. M. VIJAYA & ORS. VS. DCIT DATED 06.06.2014 HAS FOLLOWED THIS ORD ER AND HELD THAT EVEN IF THERE IS NO INCRIMINATING MATERIAL TO INDICATE ANY UNDISCLOSED INCOME OR INCOME ESCAPED ASSESSMENT DURING THE ORIGINAL ASSES SMENT COMPLETED U/S 143(3), THE AO IS BOUND TO MAKE ASSESSMENT U/S 153A FOR ALL THESE ASSESSMENT YEARS. ON THE BASIS OF THE ABOVE JUDGMENTS/DECISIONS BY HO N'BLE COURTS/TRIBUNAL THE PLEA OF THE APPELLANT THAT U/S 153A ADDITION ON LY ON ACCOUNT OF SEIZED MATERIAL HAS TO BE MADE DESERVES TO BE DISMISSED. DECISIONS IN FAVOUR OF REVENUE OF ITAT APOORVA EXTRUSION PVT. LTD. - ITA NO. 3308/DEL/201 0(DELHI A-BENCH) DATED 09.10.2014 (PARA 8) 1. NANDINI DELUX (BANGLORE C-BENCH) [2015] 54 TAXMANN. COM 162 (PARA 6.3.9) 2. HEAVY HEARTS HOSPITALS LTD. VS. ASSTT. CIT [2010] 1 30 TTJ 700 (CHENNAI BENCH) (PARA 2.12). RELIANCE IS ALSO PLACED ON THE FOLLOWING RECENT ORD ERSTHAT STRENGTHEN THE CASE OF REVENUE: 1. SMT DAYAWANTI V CIT [2016] 75 TAXMANN.COM308 (DELHI ) REFERENCE TO HEAD NOTES & PARA 23. CASE OF CIT V KAB UL CHAWLA [380 ITR 573] HAS ALSO BEEN DISCUSSED. 2. E.N GOPAKUMAR V CIT(CENTRAL) [2016] 75 TAXMANN.COM 215 (KERELA) REFERENCE TO HEAD NOTES. ITA NO. 4018/DEL/2011 & CO 207DEL./2012 21 3. CIT V ST FRANCIS CLAY DECOR TILES [2016] 70 TAXMANN. COM 234 (KERELA) 4. REPUDIATING THE ARGUMENTS OF THE LD. CIT DR, T HE LD. AR SUBMITTED THAT THE ASSESSEES CASE WAS COVERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT-VII VS RRJ SECURITIES LTD. VIDE ORDER DATED 30.10.2015 IN I.T.A. NO. 164/2015 AND 175/2015. IT WAS SUBMITTED THAT THE HON'BLE DELHI HIGH COURT HAS HELD THAT REFERENCE TO THE DATE OF S EARCH UNDER THE SECOND PROVISO U/S 153A OF THE ACT HAS TO BE CONSTRUED AS THE DATE OF HANDING OVER THE ASSETS/DOCUMENTS BELONGING TO THE ASSESSEE (BEI NG THE PERSON OTHER THAN THE ONE SEARCHED) TO THE ASSESSING OFFICER HAVING J URISDICTION TO ASSESS THE SAID ASSESSEE. IT WAS SUBMITTED THAT THE HON'BLE D ELHI HIGH COURT HAS HELD THAT FURTHER PROCEEDINGS BY VIRTUE OF SECTION 153C(1) OF THE ACT WOULD HAVE BEEN IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REF ERENCE TO THE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION WHICH WOULD MEAN THAT SIX ASSESSMENT Y EARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE U/S 153C WO ULD HAVE TO BE CONSTRUED WITH REFERENCE TO THE DATE OF HANDING OVE R OF THE ASSETS/DOCUMENTS TO THE ASSESSING OFFICER OF THE ASSESSEE. LD. AR A LSO SUBMITTED THAT AS IN THE PRESENT APPEAL, IN THE CASE OF RRJ SECURITIES ALSO, THE ASSESSING OFFICER OF THE SEARCHED PERSON AS WELL AS THE OTHER PERSON WERE TH E SAME AND, THEREFORE, THE ITA NO. 4018/DEL/2011 & CO 207DEL./2012 22 ASSESSEES CASE IS IDENTICAL TO THE FACTS OF THE CA SE IN RRJ SECURITIES. IT WAS ALSO SUBMITTED THAT THE CASE OF SSP AVIATION LIMITED, RE LIED UPON BY THE DEPARTMENT, HAS ALSO BEEN CONSIDERED BY HON'BLE DEL HI HIGH COURT IN THE CASE OF RRJ SECURITIES WHEREIN THE HON'BLE DELHI HIGH CO URT HAS HELD THAT THE DECISION IN SSP AVIATION CANNOT BE UNDERSTOOD TO ME AN THAT THE ASSESSING OFFICER HAS JURISDICTION TO MAKE A REASSESSMENT IN EVERY CASE WHERE SEIZED ASSETS OR DOCUMENTS ARE HANDED OVER TO THE ASSESSIN G OFFICER. THE LD. AR ALSO REFERRED TO THE SATISFACTION NOTE AND SUBMITTED THA T AS PER THE SATISFACTION NOTE, THERE IS NO CLEAR FINDING THAT THE DOCUMENTS SEIZED BELONGED TO THE ASSESSEE AND, AS SUCH, EVEN ON THIS COUNT, THE JURI SDICTION U/S 153C COULD NOT BE ASSUMED. 4.1 THE LD. AR ALSO PLACED RELIANCE ON THE ORDER OF THE ITAT DELHI BENCH IN THE CASE OF GOVERDHAN FINANCIAL SERVICES LTD. IN I. T.A. NO. 1720 & 943/D/2013 WHICH IS ALSO A GROUP COMPANY OF M/S WINGS PHARMACE UTICAL PVT. LTD. I.E. THE SEARCHED PARTY. A NOTICE U/S 153C OF THE ACT WAS S ERVED UPON THIS COMPANY FOR ASSESSMENT YEARS 2002-03 TO 2007-08 AND THE ITA T ON IDENTICAL FACTS HELD THAT ASSESSMENT/REASSESSMENT IN RESPECT OF ASSESSME NT YEARS 2002-03 AND 2003-04 WAS BEYOND THE PERIOD OF SIX ASSESSMENT YEA RS AS COMPUTED WITH REFERENCE TO THE DATE OF SATISFACTION RECORDED BY T HE ASSESSING OFFICER OF THE SEARCHED PERSON. RELIANCE WAS ALSO PLACED ON ANOTH ER JUDGMENT OF HON'BLE ITA NO. 4018/DEL/2011 & CO 207DEL./2012 23 HIGH COURT IN THE CASE OF PR. CIT VS LATA JAIN IN I .T.A. 214/2016 AND 276/2016 WHEREIN THE HON'BLE DELHI HIGH COURT VIDE ORDER DAT ED 29.4.2016 HELD THAT WHERE NO INCRIMINATING MATERIAL FOR THE ASSESSEE IS FOUND, THE ASSESSMENT FRAMED U/S 153C WAS NOT LEGALLY TENABLE. 5. WE HAVE HEARD THE RIVAL SUBMISSION ON THIS ISS UE AND ALSO PERUSED THE JUDGMENT DATED 30 TH OCTOBER, 2015 OF THE HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF CIT VS RRJ SECURITIES IN ITA NO. 164/20 15 AND ITA NO. 175 TO 177/2015. FOR READY REFERENCE, THE RELEVANT PARA OF THE JUDGMENT IS REPRODUCED AS UNDER: 24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVIS O TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH U NDER THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTR UED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE A SSESSEE (BEING THE PERSON OTHER THAN THE ONE SEARCHED) TO THE AO H AVING JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER P ROCEEDINGS, BY VIRTUE OF SECTION 153C(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REFERENCE TO T HE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSES SMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE UNDER SECTION 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WIT H REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE. IN THIS CASE, IT WOULD BE THE DATE OF THE RECORDING OF SATISFACTION UNDER SECTION 153C OF THE ACT, I.E., 8 TH SEPTEMBER, 2010. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF AS SESSMENT YEAR 2003-04 AND 2004-05 WOULD BE BEYOND THE PERIOD OF S IX ASSESSMENT YEARS AS RECKONED WITH REFERENCE TO THE DATE OF REC ORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. IT I S CONTENDED BY THE REVENUE THAT THE RELEVANT SIX ASSESSMENT YEARS WOUL D BE THE ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEAR RELEV ANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. IF THIS ITA NO. 4018/DEL/2011 & CO 207DEL./2012 24 INTERPRETATION AS CANVASSED BY THE REVENUE IS ACCEP TED, IT WOULD MEAN THAT WHEREAS IN CASE OF A PERSON SEARCHED, ASS ESSMENTS IN RELATION TO SIX PREVIOUS YEARS PRECEDING THE YEAR I N WHICH THE SEARCH TAKES PLACE CAN BE REOPENED BUT IN CASE OF ANY OTHE R PERSON, WHO IS NOT SEARCHED BUT HIS ASSETS ARE SEIZED FROM THE SEA RCHED PERSON, THE PERIOD FOR WHICH THE ASSESSMENTS COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEARS. THIS IS SO BECAUSE T HE DATE OF HANDING OVER OF ASSETS/DOCUMENTS OF A PERSON, OTHER THAN TH E SEARCHED PERSON, TO THE AO WOULD BE SUBSEQUENT TO THE DATE O F THE SEARCH. THIS, IN OUR VIEW, WOULD BE CONTRARY TO THE SCHEME O F SECTION 153C(1) OF THE ACT, WHICH CONSTRUES THE DATE OF REC EIPT OF ASSETS AND DOCUMENTS BY THE AO OF THE ASSESSEE (OTHER THAN ONE SEARCHED) AS THE DATE OF THE SEARCH ON THE ASSESSEE. THE RATIONAL E APPEARS TO BE THAT WHEREAS IN THE CASE OF A SEARCHED PERSON THE A O OF THE SEARCHED PERSON ASSUMES POSSESSION OF SEIZED ASSETS/DOCUMENT S ON SEARCH OF THE ASSESSEE; THE SEIZED ASSETS/DOCUMENTS BELONGING TO A PERSON OTHER THAN A SEARCHED PERSON COME INTO POSSESSION O F THE AO OF THAT PERSON ONLY AFTER THE AO OF THE SEARCHED PERSON IS SATISFIED THAT THE ASSETS/DOCUMENTS DO NOT BELONG TO THE SEARCHED PERS ON. THUS, THE DATE ON WHICH THE AO OF THE PERSON OTHER THAN THE O NE SEARCHED ASSUMES THE POSSESSION OF THE SEIZED ASSETS WOULD B E THE RELEVANT DATE FOR APPLYING THE PROVISIONS OF SECTION 153A OF THE ACT. WE, THEREFORE, ACCEPT THE CONTENTION THAT IN ANY VIEW O F THE MATTER, ASSESSMENT FOR AY 2003-04 AND AY 2004-05 WERE OUTSI DE THE SCOPE OF SECTION 153C OF THE ACT AND THE AO HAD NO JURISD ICTION TO MAKE AN ASSESSMENT OF THE ASSESSEE'S INCOME FOR THAT YEAR. 5.1 THE FACT THAT SATISFACTION U/S 153C OF THE ACT IN THE CASE WAS RECORDED ON 2 ND NOVEMBER, 2009, IS NOT DISPUTED BY BOTH THE PARTIE S. IN THE JUDGMENT CITED ABOVE, THE HONBLE HIGH COURT HAS HELD THAT W HEN THE ASSESSING OFFICER OF SEARCHED PERSON AND SUCH OTHER PERSON IN WHOSE C ASE PROCEEDINGS UNDER SECTION 153C ARE INITIATED, IS THE SAME OFFICER, TH EN THE DATE OF RECORDING OF SATISFACTION WOULD BE CONSTRUED AS THE DATE OF HAND ING OVER OF THE SEIZED RECORDS BY THE ASSESSING OFFICER OF SEARCHED PERSON TO THE ASSESSING OFFICER OF ITA NO. 4018/DEL/2011 & CO 207DEL./2012 25 SUCH OTHER PERSON IN WHOSE CASE PROCEEDINGS UNDER S ECTION 153C ARE INITIATED. SINCE THE HONBLE HIGH COURT HAS ALREAD Y CONSTRUED THE RELEVANT PROVISIONS, WE DO NOT CONCUR WITH THE ARGUMENTS ADV ANCED BY THE LD. CIT DR ON THIS COUNT. RESPECTFULLY FOLLOWING THE ABOVE JUD GMENT OF THE HONBLE HIGH COURT IN RRJ SECURITIES (SUPRA) THE DATE OF HANDING OVER OF SEIZED MATERIAL/ RECORD BY THE ASSESSING OFFICER OF SEARCHED PARTY T O THE ASSESSING OFFICER OF THE ASSESSEE WOULD BE 2 ND NOVEMBER, 2009. FURTHER, FOLLOWING THE JUDGMENT, THE SIX ASSESSMENT YEARS FOR WHICH ASSESSMENT/RE-AS SESSMENT COULD BE MADE U/S 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED AS FROM THE REFERENCE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE ASS ESSING OFFICER OF THE ASSESSEE. IN THE CASE IN HAND, IT WOULD BE THE DATE OF RECORDING SATISFACTION UNDER SECTION 153 OF THE ACT I.E. 2 ND NOVEMBER, 2009, AND THEREFORE, SIX ASSESSMENT YEARS WHICH WOULD ELIGIBLE FOR ASSESSMEN T/RE-ASSESSMENT WOULD COMMENCE FROM ASSESSMENT YEAR 2004-05 TO ASSESSMENT YEAR 2009-10. THE ASSESSMENT/RE-ASSESSMENT IN RESPECT OF ASSESSMENT Y EAR 2003-04 WOULD, THUS, BE BEYOND THE PERIOD OF SIX ASSESSMENT YEAR A S RECKONED WITH REFERENCE TO THE DATE OF SATISFACTION RECORDED BY THE ASSESSI NG OFFICER OF THE SEARCHED PERSON. WE, THEREFORE, HOLD THAT THE LEARNED CIT(A) WAS QUITE JUSTIFIED IN CONSIDERING THE ASSESSMENT FOR ASSESSMENT YEAR 2003 -04 AS OUTSIDE THE SCOPE OF SECTION 153C OF THE ACT, BEING BARRED BY LIMITAT ION AND WITHOUT JURISDICTION. ITA NO. 4018/DEL/2011 & CO 207DEL./2012 26 ACCORDINGLY, THE IMPUGNED ASSESSMENT ORDER IS LIABL E TO BE QUASHED. WE DECIDE ACCORDINGLY. 5.2 AS WE HAVE ALREADY QUASHED THE ASSESSMENT, THE OTHER GROUNDS RAISED BY REVENUE ARE RENDERED MERELY ACADEMIC AND, THEREF ORE, WE ARE NOT REQUIRED TO ADJUDICATE ON THOSE GROUNDS AT THIS POINT OF TIM E. ACCORDINGLY, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. 6. AS ALREADY DISCUSSED, SINCE THE IMPUGNED ASSESSM ENT STANDS QUASHED, BEING WITHOUT JURISDICTION AND THE ORDER OF THE LD. CIT(A) STANDS UPHELD, THE CROSS-OBJECTION FILED BY THE ASSESSEE IN SUPPORT OF THE IMPUGNED ORDER, IS RENDERED AS INFRUCTUOUS AND DESERVES TO BE DISMISSE D. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AND C.O . FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.11.2017. SD/- SD/- (BHAVNESH SAINI) (L.P. SA HU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21.11.2017 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI