DCIT, Chandigarh V. Smt. Mohinder Kaur, Chandigarh

ITA 418/CHANDI/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9196 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-03-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 16-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH CHADHA
• Keywords: Period of limitation; Difference of opinion; Block assessment; Bogus loan; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 147; 148; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SH. PRASHANT MAHARSHI, ACCOUNTANT MEMBER ITA NOS. 418 TO 421/CHD/2013 ASSESSMENT YEAR: 2001-01 TO 2003-04 THE DCIT, VS SMT. MOHINDER KAUR, CENTRAL CIRCLE II, W/O LATE SHRI TARANJIT SINGH, CHANDIGARH. HOUSE NO. 694, SECTOR 8, CHANDIGARH. PAN: AFDPS0823G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ MISHRA RESPONDENT BY : SHRI ASHISH CHADHA DATE OF HEARING : 04.08.2016 DATE OF PRONOUNCEMENT : 10.08.2016 O R D E R PER BHAVNESH SAINI, JM ALL THE APPEALS BY REVENUE ARE DIRECTED AGAINST TWO DIFFERENT ORDERS OF LD. CIT(APPEALS) CENTRAL, GURGA ON DATED 14.02.2013 FOR ASSESSMENT YEAR 2000-01 AND 2001-02 TO 2003-04. 2. IN ALL THE APPEALS, REVENUE CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN QUASHING THE PROCEEDINGS INITIATED UNDER SECTION 147 OF THE INCOME TAX ACT. 2 3. SINCE COMMON ISSUES ARE INVOLVED IN ALL THE APPE ALS, THEREFORE, ALL WERE HEARD TOGETHER. THE PARTIES MA INLY ARGUED IN ITA 418/2013. THIS APPEAL IS, THEREFORE, DECIDED AS UNDER. ITA 418/2013 (A.Y. 2001-01) 4. THE ASSESSEE BEING PROPRIETOR OF M/S LADA LIQUOR FILED ITS RETURN OF INCOME OF RS. 2,69,274/- ON 04. 05.2007 IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT ISSUED ON 26.03.2007. 5. THE SEARCH & SEIZURE OPERATION WAS CARRIED OUT A T THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE O N 23.05.2002. THE HUSBAND OF THE ASSESSEE SHRI TARAN JIT SINGH EXPIRED ON 19.04.2000, WAS IN THE LIQUOR BUSI NESS IN CHANDIGARH AND PANCHKULA DISTRICTS FOR MANY YEARS. THE BUSINESS WAS TAKEN OVER BY HIS WIFE SMT. MOHINDER K AUR AFTER HIS DEMISE. THE IMPUGNED ORDER FURTHER ELABORATES THAT NO PROPER BOOKS OF ACCOUNT WERE MAINTAINED AND THE HUG E UNACCOUNTED MONEY EARNED FROM THESE BUSINESS ACTIVI TIES WERE INVESTED IN IMMOVABLE PROPERTIES BESIDES ROLLI NG BACK INTO THE BUSINESS AS BOGUS LOAN. THE ASSESSIN G OFFICER PASSED THE ORDER UNDER SECTION 147/143(3) O F THE ACT DATED 28.12.2007 FOR ASSESSMENT YEAR UNDER APPE AL 2000-01. THE ASSESSING OFFICER MENTIONED THE FACT OF CARRYING OUT SEARCH IN THE CASE OF THE ASSESSEE AND MADE CERTAIN ADDITIONS COMPUTING THE TOTAL INCOME OF THE ASSESSEE AT RS. 2,49,62,045/-. THE 3 ASSESSING OFFICER IN THE ASSESSMENT ORDER ALSO NOTE D THAT ADDITIONS MADE AS PER DISCUSSION IN PARAS 3.1 TO 3. 6 ABOVE ARE MADE ON PROTECTIVE BASIS AS THE ISSUES WE RE COVERED IN BLOCK PERIOD ASSESSMENT AND ARE BEING CONTESTED BY THE DEPARTMENT IN SECOND APPEAL BEFORE ITAT BENCH. IT WAS, THEREFORE, CLEAR THAT ALL THE ADDIT IONS MADE IN THE RE-ASSESSMENT ORDER REMAINED SUBJECT MA TTER IN THE BLOCK ASSESSMENT IN WHICH THE APPEALS WERE PENDING BEFORE THE TRIBUNAL. THE ASSESSEE CHALLENG ED THE RE-OPENING OF THE ASSESSMENT BEFORE LD. CIT(APPEALS ) ALONGWITH ADDITIONS ON MERITS. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED IN THE APPELLATE ORDER WHIC H READ AS UNDER : THE PRESENT APPEALS PERTAIN TO THE CHALLENGE TO THE ASSESSMENT ORDERS FRAMED BY THE ID. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRDE-2, CHANDIGARH U/S 147/143(3) OF THE INCOME TAX ACT. THE ASSESSMENT YEARS IN QUESTION FORM PART OF THE B LOCK PERIOD FROM 01/04/1996 TO 23/05/2002 FOR WHICH THE ASSESSMENT W AS SEPARATELY FRAMED UNDER SECTION 158BC AND THE ADDITIONS MADE U/S I158 BC HAVE BEEN SUBSTANTIALLY DELETED BY THE LD. CIT(A), CENTRAL CI RCLE, LUDHIANA. THE DEPARTMENT IS IN APPEAL AGAINST THE SAID ORDER OF T HE LD. CIT(A) AND THE MATTER IS NEXT LISTED FOR CONSIDERATION BEFORE THE HON'BLE TRIBUNAL ON 07/02/2013. THE INCOME OF THE BLOCK ASSESSMENT COMPRISED OF FRO M 01/04/1996 TO 23/05/2002 WAS COMPLETED ON TOTAL UNDISCLOSED INCOM E AT RS. 9,10,72,290/~ IN THE CASE OF SMT. MOHINDER KAUR MOHINDER KUAR FIL ED AN APPEAL AGAINST THE ORDER OF THE LD. ASSESSING OFFICER BEFORE WORTHY CI T(A), LUDHIANA WHO APPRECIATED TRUTHFULNESS OF DECLARED VERSION OF THE ASSESSEE. IT IS RESPECTFULLY SUBMITTED THAT THE REASONS GIVEN FOR REOPENING OF T HE ASSESSEE'S CASE U/S 147/148 OF THE INCOME TAX ACT, ARE SIMILAR TO THE G ROUNDS OF CHALLENGE RAISED BY THE DEPARTMENT IN THE APPEAL PENDING BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. THE ENTIRE MATERIAL REFERRED TO BY THE LD. ACIT, CENTRAL CIRCLE, CHANDIGARH FOR REOPENING THE CASE OF THE AS SESSEE WAS AVAILABLE AND 4 HAS BEEN ADJUDICATED UPON IN THE PROCEEDINGS U/S 15 8BC OF THE INCOME TAX ACT. AS THE LD. CIT (A) HAS DELETED SUBSTANTIAL ADDITION S MADE ON THE GROUNDS OF THE REASONS TAKEN FOR REOPENING, THE ACTION U/S 147/148 OF THE ACT IS NOT SUSTAINABLE. IN ANY CASE, THE SAME ISSUES ARE PENDING CONSIDERAT ION BEFORE THE HON'BLE ITAT AND CANNOT BE RE-AGITATED BY INVOKING THE PROVISION S OF SECTION 147/148 OF THE INCOME TAX ACT. JUDGMENTS OF DIFFERENT HON'BLE COURTS INCLUDING HON 'BLE SUPREME COURT OF INDIA REFERRED AS FOLLOWS:- (1964) 51 ITR 557 (SC) GHANSHYAMDAS VS. REGIONAL AS STT. CST& ORS. (2006) 206 CTR (BOM) 581 : (2006) 286 ITR 618 (BOM) METRO AUTO CORPORATION VS. INCOME TAX OFFICER & ORS. CARGO CLEARING AGENCY (GUJARAT) VS. JOINT COMMISSIO NER OF INCOME TAX, (2008) 218 CTR (GUJ) 541 : (2008) 307 I TR 1 : (2008) 12 DTR 50 SMT. MIRA ANANTA NAIK & ORS. VS. DEPUTY COMMI SSIOENR OF INCOME TAX (INVESTIGATION) & ORS. (2009) 221 CTR ( BOM)149 : (2009) 183 TAXMAN 40 : (2008) 15 DTR 8 WESTERN INDIA BAKERS (P) LTD. VS. DEPUTY COMMISSION ER OF INCOME TAX, (2004) 84 TJ (MUMBAI) 223: (2003) 87ITD 607. ASSISTANT COMMISSIONER OF INCOME TAX VS. RAMESH CHA ND SONI, (2006) 105 TTJ (]D) 262, IT IS SETTLED LAW THAT THE PROVISIONS OF SECTION 14 7/148 CANNOT BE APPLIED IN THE CASE OF BLOCK ASSESSMENT MADE UNDER CHAPTER XIV'-B. IT MAY FURTHER BE RELEVANT TO MENTION HERE THAT THE PROCEEDINGS U/S 147/148 ARE INITIATED FOR INCOME ESCAPING ASSESSMEN T. AS IN THE CASE OF THE ASSESSEE, THE SEARCH HAVING RESULTED IN BLOCK ASSES SMENT AND THE DEPARTMENT HAVING RESORTED TO SECTION 158BC, IT CANNOT BE SAID THAT ANY INCOME ESCAPED ASSESSMENT. IT IS A MATTER OF RECORD THAT THE ID. C IT(A) AHS DELETED SUBSTANTIAL ADDITIONS MADE U/S 158BC. NOW, MERELY BECAUSE THE B LOCK ASSESSMENT HAS NOT BEEN UPHELD, THE DEPARTMENT CANNOT BE PERMITTED TO INVOKE SECTION 147. REFERENCE IN THIS REGARD MAY BE MADE TO THE JUDGMEN T O HON'BLE BOMBAY HIGH COURT REPORTED AS (2009) 221 CTR (BOM). 149 REPRODU CED ABOVE. IT IS SETTLED LAW THAT AN INCOME TAX OFFICE R ACQUIRES JURISDICTION TO REOPEN AN ASSESSMENT U/S 147 ONLY IF, ON THE BASIS OF SPEC IFIC RELIABLE AND RELEVANT INFORMATION COMING TO HIS POSSESSION SUBSEQUENTLY, HE HAS REASON - WHICH HE MUST RECORD TO BELIEVE THAT BY REASON OF OMISSIONS OR FAILURE ON THE PART OF THE ASSESSEE TO MAKE A TRUE AND FULL DISCLOSURE OF ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT DURING CONCLUDED ASSESSMENT PROCEEDINGS, ANY PART OF HIS INCOME, PROFIT OR GAINS CHARGEABLE TO INCOME TAX HAS ESCAPE D ASSESSMENT. HE MAY START 5 REASSESSMENT PROCEEDINGS EITHER BECAUSE SOME FRESH FACTS COME TO LIGHT WHICH WERE NOT PREVIOUSLY DISCLOSED OR SOME INFORMATION W ITH REGARD TO THE FACTS PREVIOUSLY DISCLOSED COME INTO HIS POSSESSION WITHS TANDS TO EXPOSE THE UNTRUTHFULNESS OF THOSE FACTS. IN THE ABSENCE OF TH E SAME, IT WOULD BE A CASE OF MERE CHANGE OF OPINION OR THE DRAWING OF A DIFFEREN T INFERENCE FROM THE SAME FACTS AS WERE EARLIER DRAWING OF A DIFFERENT INFERE NCE FROM THE SAME FACTS AS WERE EARLIER AVAILABLE WHICH CANNOT BE PERMITTED. R EFERENCE IN THIS REGARD MAY BE MADE TO THE DECISION OF HON'BLE SUPREME COUR T REPORTED AS (1993) 203 ITR 456(SC). THE JURISDICTION OF AN INCOME TAX OFFI CER U/S 147 IS CONFINED ONLY TO SUCH INCOME WHICH HAS ESCAPED TAX OR HAS BEEN UN DER - ASSESSED AND DOES NOT EXTEND TO REVISING, REOPENING OR RECONSIDERING THE WHOLE ASSESSMENT. REFERENCE MAY BE MADE TO THE CASES REPORTED AS (1992) 198 ITR 297 (SC), (2002) 255 ITR 220 (P& H). IN THE ABSENCE OF THE SAME, THE INCOME TAX OFFICER CANNOT BE SAID TO HAVE ASSUMED VALID JURISDICTION FOR INVOKING THE PROVISIONS OF SECTION 147/148 OF THE INCOME TAX ACT AND THE ASSESSMENT FR AMED U/S 147 IN THE ABSENCE OF SATISFYING THE AFORESAID TWIN CONDITIONS WOULD BE BAD IN LAW. PERMITTING THE INCOME TAX OFFICER TO INVOKE THE PROVISIONS OF SECTION 147 WITHOUT COMPLIANCE OF THE AFORESAID TWIN CONDITIONS WOULD BE LIKES SAYING THAT AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APP LICATION OF MIND WOULD ITSELF CONFER JURISDICTION UPON THE ASSESSING OFFIC ER TO REOPEN THE PROCEEDINGS WITHOUT ANYTHING FURTHER. THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTION TO TAK E BENEFIT OF ITS OWN WRONG. HENCE IT IS CLEAR THAT H SECTION 147 OF ACT DOES NO T POSTULATE CONFERMENT OF PER UPON THE ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDINGS UPON A MERE CHANGE OF OPENING. REFERENCE IN THIS REGARD MAY BE MADE TO THE DECISION REPORTED AS (2002) 266 ITR L(DEL)(FB). IN THE PRESENT CASE, ALL THE FACTS AND REAS ONS GIVEN FOR REOPENING OF THE ASSESSMENT WERE AVAILABLE BEFORE THE ASSESSING OFFI CER AT THE TIME OF FRAMING OF ORIGINAL ASSESSMENT U/S 158BC. REFERENCE IN THIS RE GARD MAY BE MADE TO THE DECISION REPORTED AS (2002) 75 TTJ (]OD - TRI.) 16, (2002) 258 ITR 183 (BOM), (2006) 284 TTR 542 (BOM). IT IS NOT THE CASE OF THE DEPARTMENT THAT THE ASSESSEE FAILED TO DISCLOSE FULLY OR TRULY ALL MATERIAL FACT S NECESSARY FOR HIS ASSESSMENT FOR THE ASSESSMENT YEAR IN QUESTION. IN ANY CASE, T HE MATERIAL FACTS SHOULD BE DEEMED TO HAVE BEEN BROUGHT TO THE NOTICE OF THE AS SESSING OFFICER WHILE FRAMING THE ASSESSMENT U/S 158BC THAT: WAS INITIATED IN THE CASE OF ASSESSEE AS A RESULT OF SEARCH AS THE DEPARTMENT HAS FAILED TO ESTABLISH THAT THE ASSESSEE DID NOT DISCLOSE FULLY OR TRULY ALL MATERIAL FACTS NECESSAR Y FOR HIS ASSESSMENT, THE MANDATORY REQUIREMENT OF SECTION 148 CANNOT BE SAID TO HAVE BEEN SATISFIED AND THE NOTICE U/S 148 IS, THEREFORE, LIABLE TO BE QUASHED FOR THAT REASON ALONE. 6 IT IS A CASE OF REASSESSMENT ON PROTECTIVE BASIS. T HE ASSESSING OFFICER HIMSELF WAS NOT CLEAR WHETHER THE INCOME, HE PROPOSES TO AD D TO THE ALREADY ASSESSED INCOME IS CORRECT OR NOT AND ALSO THE REASONS RECOR DED FOR REOPENING OF THE CASE ARE LEGITIMATE WITHIN THE JURISDICTION AND CORRECT ON FACTUAL MERITS. THAT IS WHY, HE MADE PROTECTIVE ASSESSMENT. MORE INTEREST IN THE FACTS OF THE CASE I S THAT THE REASONS RECORDED FOR REOPENING OF THE CASE ARE NO DIFFERENT THAN THE GRO UND OF APPEAL AGITATED BY THE DEPARTMENT IN APPEAL BEFORE THE HON'BLE ITAT. I N THIS WAY, THE EFFORTS OF THE DEPARTMENT TANTAMOUNT TO DOUBLE EXERCISE OF THE SAME FACTS, ONE BEFORE THE HON'BLE TRIBUNAL IN APPEAL AND SECOND DURING IN ITIATING AND DEALING WITH REASSESSMENT PROCEEDINGS. IT ANY NOT BE OUT OF PLACE TO RESPECTFULLY SUBMIT THAT THE CONCERNED AUTHORITIES COULD NOT ARR IVE AT REASONABLE, JUST END FAIR CONCLUSION IN REASSESSMENT PROCEEDINGS. TH AT IS WHY, THEY INVOKED TO THE COMPLETION OF ASSESSMENT ON PROTECTIVE BASIS. IN VIEW OF THE AFORESAID AND THE SUBMISSIONS FURNIS HED EARLIER BOTH BEFORE YOUR HONOUR AND ID. ASSISTANT COMMISSIONER O F INCOME TAX, COPIES OF WHICH ARE ENCLOSED HEREWITH, IT IS MOST RESPECTF ULLY PRAYED THAT THE IMPUGNED ORDERS MAY KINDLY BE QUASHED. IN THE ALTER NATIVE, IT IS RESPECTFULLY SUBMITTED THAT SINCE THE ISSUE S INVOL VED IN THE PRESENT CASE ARE PENDING CONSIDERATION BEFORE THE HON'BLE ITAT IN TH E APPEAL ARISING OUT OF SECTION 158BC PROCEEDINGS, THE PROCEEDINGS IN THE P RESENT CASE MAY BE ADJOURNED SINCE-A-DIE TO AWAIT DECISION OF THE APPE AL PENDING BEFORE THE HON'BLE ITAT. 6. THE LD. CIT(APPEALS), CONSIDERING THE SUBMISSION S OF THE ASSESSEE IN THE LIGHT OF THE PROVISIONS OF LAW, QUASHED THE RE-OPENING OF THE AT UNDER SECTION 147 OF THE I NCOME TAX ACT AND ALSO DELETED THE ADDITION AND ALLOWED T HE APPEAL OF THE ASSESSEE. THE FINDINGS OF LD. CIT(AP PEALS) IN PARAS 7 TO 9 OF THE IMPUGNED ORDER ARE REPRODUCED A S UNDER : 7. ON A CONSIDERATION OF THE ABOVE FACTS AND CIRCUMSTANCES, AT THE OUTSET I PROCEED TO ADJUDICATE THE GROUNDS OF APPEA L NOS. 1 AND 4 WHICH ARE REPRODUCED AGAIN. 7 1. THAT THE IMPUGNED ORDER IS AGAINST FACTS AND LAW AND INITIATION OF REASSESSMENT PROCEEDINGS IS WITHOUT JURISDICTION AN D CONSEQUENTLY THE IMPUGNED ASSESSMENT ORDER DESERVES TO BE INVALIDATE D. 4. THAT ID. AO, HAS FRAMED ASSESSMENT ON PROTECTIVE BASIS WHEN THE SUBSTANTIVE ASSESSMENT HAD ALREADY BEEN COMPLETED T HEREFORE THE PRESENT ASSESSMENT WAS UNWANTED AND HENCE DESERVES TO BE IN VALIDATED, QUASHED AND ANNULLED. IN THESE TWO GROUNDS, THE ASSESSEE HAS CHALLENGED T HE REASSESSMENT PROCEEDINGS AS ALSO THE FRAMING OF THE ASSESSMENT O N PROTECTIVE BASIS WHEN THE SUBSTANTIVE ASSESSMENT STOOD COMPLETED. IT IS T HE ASSESSEE'S CONTENTION THAT THE ASSESSMENTS SO FRAMED WERE PART OF THE BLO CK PERIOD 01.04.1996 TO 23.05.2003 FOR WHICH ASSESSMENT WAS SEPARATELY FRAM ED U/S 153BC ON 22.8.2005. FURTHER THE ADDITION MADE U/S 158BC WAS SUBJECT TO APPEAL AND THE CIT(A), LUDHIANA VIDE ORDER DATED 12.09.2005 HA D ALLOWED THE APPEAL OF THE ASSESSEE. IT WAS ALSO STATED THAT THE DEPART MENT WAS IN APPEAL AGAINST THE SAID ORDER OF CIT (APPEALS) BEFORE THE HON'BLE ITAT CHANDIGARH. RELYING ON SEVERAL DECISIONS ASSESSEE, ARGUED THAT MERELY BECA USE THE BLOCK ASSESSMENTS NOT BEEN UPHELD, THE DEPARTMENT CANNOT BE PERMITTED TO INVOKE SECTION 147. 8. I HAVE CAREFULLY CONSIDERED THE COMMON SUBMISSIO N OF THE ASSESSEE, THE POSITION OF LAW AND THE IMPUGNED ASSESSMENT ORDER. I HAVE ALSO PERUSED THE REASONS RECORDING FOR INITIATING PROCEEDINGS U/S 14 8 (PB 54-57) AS WELL AS THE BLOCK ASSESSMENT DATED 22.8.2005 AND THE ORDER OF T HE CIT (A), LUDHIANA DATED 12.09.2005 (PB 61-87). FROM THE COPIES OF THE REASO NS RECORDED IT IS EVIDENT THAT THE SAME CORRESPONDS TO THE BLOCK PERIOD 01.04.1996 TO 23.05.2002 I.E. RELEVANT TO AY 2000-01, AY 2001-02, 2002-03 AND 2003-04 (UPTO 2 3.05.2002]. THIS RELEVANT YEAR IS ASSESSMENT OF THE ASSESSEE AS LEGAL HEIR. I N OTHER WORDS THE REASSESSMENT PROCEEDINGS WHICH STATES AS.... AS PER INFORMATION RECEIVED FROM DDI(INV), CHANDIGARH ARE BASED ON THE SAME INFORMATION AVAIL ABLE WITH THE AO WHILE FRAMING THE BLOCK ASSESSMENT U/S 158BC. FURTHERMORE THE IMPUGNED ASSESSMENT ORDER(S) ITSELF MAKES A REFERENCE TO THE SEARCH ACT ION CONDUCTED ON THE ASSESSEE ON 23.05.2002. ON A CLOSE PERUSAL IT IS ALSO SEEN T HAT THE ADDITIONS MADE IN THE IMPUGNED ORDERS CORRESPOND TO THE ADDITION MADE IN THE BLOCK ASSESSMENT. IMPORTANTLY THESE ADDITIONS IN THE BLOCK ASSESSMENT WERE ADJUDICATED IN APPEAL WHEREIN THE SAME WERE DELETED. THE DATE OF APPELLAT E ORDER IS 12.09.2005 WHILE 8 THE DATE OF RECORDING THE REASONS FOR INVOKING SECT IONS 148 IS 26.03.2007. THUS IT IS CRYSTAL CLEAR THAT REASSESSMENT PROCEEDI NGS WERE INITIATED AFTER THE PASSING THE APPELLATE ORDER. IN OTHER WORDS IT CAN BE SAFELY STATED THAT THE REASSESSMENT PROCEEDINGS U/S 148 TANTAMOUNT TO MERE CHANGE OF OPINION WITH NO NEW FACTS/ INFORMATION COMING TO THE KNOWLEDGE OF T HE AO. THUS, RELYING ON THE APEX COURT DECISION IN THE CASE OF CIT (V) KELVINAT OR OF INDIA LTD. [2010] 320 ITR 561 (SC) I HAVE NO HESITATION IN HOLDING THAT THE REASSESSME NT PROCEEDINGS IS BAD IN LAW AND DESERVE TO BE QUASHED. 8.1 THE OTHER GRIEVANCE OF THE ASSESSEE PERTAINS TO THE ISSUE OF PROTECTIVE ASSESSMENT. FROM THE IMPUGNED ORDER AT PAGE 10, THE AO HAS CLEARLY NOTED THAT ....THE ADDITIONS AS PER DISCUSSION IN PARA 3.L TO 3.6 ABOVE ARE MADE ON PROTECTIVE BASIS AS THE ISSUES WERE COVERED IN BLOCK ASSESSMEN T AND ARE BEING CONTESTED BY DEPARTMENT IN 2 ND APPEAL BEFORE THE HON'BLE BENCH OF ITAT. HENCE IT I S VERY APPARENT THAT THE ADDITIONS MADE IN THESE IMPUGNED ORDERS HAD BEEN ALREADY CONSIDERED AND DELETED BY CIT(APPEALS) WHILE ADJUDI CATING THE APPEAL OF THE ASSESSEE AGAINST THE BLOCK ASSESSMENT. THEREFORE AS THE ISSUES STAND ADJUDICATED IN THE FI RST APPEAL, THEY WERE NOT OPEN TO RE-ADJUDICATION OR RECONSIDERATION BY THE A O NOR BY ME. BESIDES, THE DEPARTMENT IS ALREADY IN APPEAL BEFORE THE HON'BLE ITAT AGAINST THE FIRST APPELLATE ORDER. THEREFORE FOR REASONS STATED ABOVE THE GROUNDS OF APPEAL 1 AND 4 ARE DECIDED IN FAVOUR OF ASSESSEE. 8.2 SINCE THE APPEAL IS BEING ALLOWED TO THE ASS ESSEE BY HOLDING THE RE- ASSESSMENT PROCEEDINGS AS INVALID ON THE BASIS OF G ROUND OF APPEAL NO. 1, THERE IS NO REQUIREMENT IN ADJUDICATING ON THE OTHER GROUNDS OF APPEAL TAKEN ASSESSEE RELATING TO THE VARIOUS ADDITIONS MADE IN THE IMPUG NED ORDER AS IT WILL BE MERELY ACADEMIC. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. DR ALSO FILED WRITTEN SUBMISSIONS. THE LD. DR SUBMITT ED THAT AFTER SEARCH WAS CONDUCTED, BLOCK ASSESSMENT ORDER WAS 9 PASSED ON 22.08.2005. HOWEVER, THE LD. CIT(APPEALS ) DELETED THE ADDITIONS VIDE ORDER DATED 12.09.2005. THE REVENUE AS WELL AS ASSESSEE PREFERRED THE APPEALS B EFORE THE TRIBUNAL. THE ASSESSMENT UNDER SECTION 158BC W AS KNOCKED DOWN BY THE ITAT CHANDIGARH BENCH VIDE ORDE R DATED 26.04.2012 ON THE GROUND THAT NAME OF THE ASS ESSEE WAS NOT IN THE WARRANT OF AUTHORIZATION UNDER SECTI ON 132(1). THE LD. DR SUBMITTED THAT ASSESSING OFFICER , ACCORDINGLY, REOPENED THE ASSESSMENT THEREAFTER UND ER SECTION 148 OF THE ACT AND MADE THE PROTECTIVE ASSESSMENTS AS THE ISSUES WERE COVERED IN THE BLOCK ASSESSMENT ORDER. THE LD. DR SUBMITTED THAT THERE IS NO CHANGE OF OPINION AND REVENUE IS WELL WITHIN ITS RI GHT TO BRING TO TAX THE INCOME WHICH HAS ESCAPED ASSESSMEN T AND HAS SUBMITTED THAT RE-ASSESSMENT UNDER SECTION 147/148 IS VALID. 7(I) THE LD. DR RELIED UPON DECISION OF HON'BLE SUP REME COURT IN THE CASE OF POORAN MAL 93 ITR 505 IN WHICH THE PRINCIPLE LAID DOWN IS THAT EVEN WHERE A SEARCH ACTION TAKEN IS IN CONTRAVENTION TO THE LAW, THE EVIDENCE AND MATERIAL COLLECTED ARE LIABLE TO BE USED AGAINST TH E PERSON IN A LEGITIMATE PROCEEDINGS PROVIDED UNDER THE STAT UTE , DECISION OF HON'BLE SUPREME COURT IN THE CASE OF NA ND LAL TAHILIANI 172 ITR 627 IN WHICH IT WAS HELD THAT EVEN WHERE SEARCH PROCEEDINGS ARE HELD TO BE BAD IN LAW, HOWEVER, IT IS OPEN TO THE INCOME TAX AUTHORITIES T O TAKE SUCH OTHER PROCEEDINGS AGAINST THE ASSESSEE AS ARE 10 AVAILABLE UNDER THE ACT AND FOR THAT PURPOSE AND DECISION OF GAUHATI HIGH COURT IN THE CASE OF PEERCHAND RATA NLAL BAID (HUF) 226 CTR 189 IN WHICH IT WAS HELD THAT PROVISIONS OF SECTION 147/148 WILL APPLY TO AN ASS ESSMENT FOR BLOCK PERIOD. 7(II) ON THE OTHER HAND, LD. COUNSEL FOR THE ASS ESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT WHERE THE MATERIAL ON BASIS OF W HICH ASSESSING OFFICER SOUGHT TO REOPEN AN ASSESSMENT, W AS MATERIAL PERTAINING TO SEARCH UNDER SECTION 132, SU CH SEIZED MATERIAL COULD BE SUBJECT TO BLOCK ASSESSMEN T ONLY AND CANNOT BASIS FOR RE-OPENING OF THE ASSESSMENT. IN SUPPORT OF THE CONTENTION, HE HAS RELIED UPON ORDER OF ITAT AGRA BENCH IN THE CASE OF ACIT VS VIDIT KUMAR AGARWAL 55 SOT 48 (26 TAXMAN.COM 185) IN WHICH IT W AS HELD AS UNDER : WHERE MATERIAL ON BASIS OF WHICH ASSESSING OFFICER SOUGHT TO REOPEN A REGULAR ASSESSMENT WAS MATERIAL PERTAINING TO REQUI SITION UNDER SECTION 132A, SUCH MATERIAL COULD BE SUBJECT TO ONLY BLOCK ASSESSMENT AND IT COULD NOT FORM BASIS FOR REOPENING AN ASSESSMENT. 7(III) DECISION OF ALLAHABAD HIGH COURT IN THE CA SE OF VISHWANATH PRASAD ASHOK KUMAR SARRAF VS CIT 327 ITR 190 IN WHICH IN PARA 12, IT WAS HELD AS UNDER : FURTHER, UNDER SECTION 147 OF THE ACT THE ASSESSING AUTHORITY CAN ASSESS OR REASSESS ONLY THAT INCOME WHICH HAS ESCAPED ASSESSM ENT, INASMUCH AS FOR TAKING THE ACTION THERE MUST BE A R EASON TO BELIEVE THAT SUCH INCOME HAS ESCAPED ASSESSMENT WHICH COMES TO HIS NO TICE SUBSEQUENTLY. IN THE INSTANT CASE THE AMOUNTS, WHIC H ARE ALLEGED AS AN ESCAPED INCOME, HAVE BEEN DULY CONSIDERED IN THE BL OCK 11 ASSESSMENT. IN THE BLOCK ASSESSMENT, SUCH AMOUNTS H AVE BEEN ASSESSED TO TAX AS UNDISCLOSED INCOME. IN APPEAL, THE TRIBUNAL HAS HELD THAT SUCH AMOUNTS ARE NOT UNDISCLOSED INCOME. ONCE THE T RIBUNAL HAS ARRIVED TO THE CONCLUSION THAT THE ALLEGED AMOUNTS ARE NOT THE UNDISCLOSED INCOME, IT CANNOT BE TREATED AS THE ESC APED INCOME, CHARGEABLE TO TAX, UNDER THE PROVISION OF SECTION 147 OF THE A CT. IT IS NOT OPEN TO THE ASSESSING AUTHORITY TO CIRCUMVENT THE O RDER OF THE TRIBUNAL AND TO TAKE A DIFFERENT VIEW. THE ORDER OF THE TRIBUNAL IS BINDING ON THE ASSESSING AUTHORITY. MOREOVER, ONCE THE ALLEGED AMOUNT HAS BEEN CONSIDERED IN THE BLOCK ASSESSMENT, IT CANNOT BE TR EATED AS THE ESCAPED INCOME, CHARGEABLE TO TAX. 7(IV) DECISION OF GUJRAT HIGH COURT IN THE CASE O F PRAKASH JEWELLERS V ACIT 28 TAXMAN.COM 8 (261 CTR 1 95) IN WHICH IT WAS HELD AS UNDER : RE-OPENING OF ASSESSMENT IN RELATION TO A MATTER W HICH IS SUBJECT MATTER OF BLOCK ASSESSMENT, IS WITHOUT JURISDICTION . 8. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE LD. CIT(APPEALS) IN BLOCK ASSESSMENT HAS DELETE D ALL THE ADDITIONS ON WHICH RE-OPENING OF THE ASSESSMENT IS MADE. THE TRIBUNAL DISMISSED THE DEPARTMENTAL APPE AL AND ALLOWED CROSS OBJECTION OF THE ASSESSEE BECAUSE NO WARRANT OF AUTHORIZATION UNDER SECTION 132(1) WAS I SSUED IN THE NAME OF THE ASSESSEE SMT. MOHINDER KAUR. CO PY OF THE ORDER OF THE TRIBUNAL IN CASE OF THE ASSESSEE D ATED 26.04.2012 IS FILED ON RECORD. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT SEARCH WAS CONDUCTED ON 23.05.2002 IN THE CASE OF THE ASSESSEE AND BLOCK ASSESSMENT ORDER UND ER SECTION 158BC WAS PASSED ON 22.08.2005 MAKING THE ADDITIONS ON WHICH THE ASSESSING OFFICER REOPENED T HE 12 ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT. THE LD. CIT(APPEALS), HOWEVER, VIDE ORDER DATED 12.09.2 005 DELETED ALL THE ADDITIONS. THE REVENUE AS WELL AS ASSESSEE PREFERRED APPEAL/CROSS OBJECTION BEFORE THE TRIBUNA L AND THE TRIBUNAL DISMISSED THE DEPARTMENTAL APPEAL AND ALLOWED CROSS OBJECTION OF THE ASSESSEE BECAUSE NO WARRANT OF AUTHORIZATION UNDER SECTION 132(1) WAS I SSUED IN THE NAME OF THE ASSESSEE. THE ASSESSING OFFICER IN THE RE-ASSESSMENT ORDER IN COMPUTATION OF INCOME HAS MENTIONED THAT ALL THE ADDITIONS MADE IN THE ASSESS MENT ORDER ARE MADE ON PROTECTIVE BASIS AS ISSUES WERE C OVERED IN BLOCK PERIOD ASSESSMENT AND ARE BEING CONTESTED BY DEPARTMENT IN SECOND APPEAL BEFORE THE TRIBUNAL. I T IS, THEREFORE, VERY CLEAR THAT ALL THE ADDITIONS MADE I N THE RE- ASSESSMENT PROCEEDINGS WERE CONSIDERED AND DECIDED IN THE BLOCK ASSESSMENT ORDERS WHICH HAVE BEEN ULTIMAT ELY DELETED BY THE LD. CIT(APPEALS) AND ORDER OF THE LD . CIT(APPEALS) HAVE BEEN CONFIRMED BY THE TRIBUNAL. HON'BLE GUJRAT HIGH COURT IN THE CASE OF CARGO CLEA RING AGENCY (GUJRAT) V JCIT 307 ITR 1 HELD AS UNDER : WHEN ONE CONSIDERS THE ENTIRE SCHEME RELATING TO TH E PROCEDURE FOR ASSESSMENT/REASSESSMENT AS LAID DOWN IN THE GROUP O F SECTIONS FROM SECTIONS 147 TO SECTION 153 OF THE INCOME-TAX ACT, 1961, AND COMPARES IT WITH THE SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES UN DER CHAPTER XIV-B OF THE ACT IT BECOMES APPARENT THAT THE NORMAL PROCEDU RE LAID DOWN IN CHAPTER XIV OF THE BEEN GIVEN A GO BY WHEN CHAPTER XIV-B OF THE ACT ITSELF LAYS DOWN THAT THE SAID CHAPTER PROVIDES FOR A SPECIAL P ROCEDURE FOR ASSESSMENT OF 13 SEARCH CASES. CLAUSE (F) UNDER SUB-SECTION (1) OF S ECTION 158BB OF THE ACT PROVIDES FOR REDUCING THE AGGREGATE TOTAL INCOME CO MPUTED FOR THE BLOCK PERIOD BY THE AGGREGATE OF THE TOTAL INCOME, IN A C ASE WHERE AN ASSESSMENT FOR UNDISCLOSED INCOME HAD BEEN MADE EARLIER UNDER CLAUSE (C) OF SECTION 158BC, ON THE BASIS OF SUCH ASSESSMENT. IN OTHER WO RDS, IT ONLY MEANS THAT WHERE A PREVIOUS ASSESSMENT HAS BEEN FRAMED UNDER C HAPTER XIV-B OF THE ACT, THE AGGREGATE OF SUCH TOTAL INCOME ASSESSE D FOR THE BLOCK PERIOD IN CASE OF A SEARCH WHERE THE 'BLOCK PERIOD IS A DIFFE RENT BLOCK PERIOD FROM THE EARLIER BLOCK PERIOD, HAS TO BE DEDUCTED WHILE ASSE SSING FOR A SUBSEQUENT BLOCK PERIOD. WHEN THIS PROVISION IS READ IN THE CO NTEXT OF SECTION 158BC, MORE PARTICULARLY THE FIRST PROVISO THEREUND ER, IT BECOMES CLEAR THAT THE LEGISLATURE DOES NOT INTEND TO REOPE N A BLOCK ASSESSMENT. ANY SUCH INTERPRETATION WOULD RUN COUNT ER TO THE LEGISLATIVE INTENT AS NOTED FROM THE CONTEMPORANEOU S EXPOSITION THROUGH THE MEMORANDUM EXPLAINING THE FINANCE BILL AS WELL AS THE VARIOUS CIRCULARS ISSUED BY THE CENTRAL BOARD OF DI RECT TAXES EXPLAINING DIFFERENT AMENDMENTS. IN SECTION 158BA O F THE ACT THERE IS A POSITIVE MANDATE TO THE ASSESSING OFFICER TO A SSESS THE UNDISCLOSED INCOME IN ACCORDANCE WITH THE PROVISION S OF CHAPTER XIV-B OF THE ACT, NOTWITHSTANDING ANYTHING CONTAINE D IN ANY OTHER PROVISIONS OF THE ACT. AS AGAINST THAT, SECTION 158 BH STATES THAT EXCEPT AS OTHERWISE PROVIDED IN CHAPTER XIV-B OF TH E ACT, ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO ASSESSMENT MAD E UNDER CHAPTER XIV-B. THEREFORE, ONCE THE PERIOD OF LIMITATION HAS BEEN PRESCRIBED UNDER SECTION 158BE OF THE ACT THE TIME LIMIT FOR C OMPLETION OF ASSESSMENT OF UNDISCLOSED INCOME HAS TO BE AS PROVI DED UNDER THE SAID SECTION. THE ENTIRE CHAPTER XIV-B OF THE ACT RELATES TO ASSE SSMENT OF SEARCH CASES, VIZ., UNDISCLOSED INCOME FOUND AS A RESULT O F SEARCH. ONE CANNOT ENVISAGE ESCAPEMENT OF UNDISCLOSED INCOME ON CE A SEARCH HAS TAKEN PLACE AND MATERIAL RECOVERED, ON PROCESSI NG OF WHICH UNDISCLOSED INCOME IS BROUGHT TO TAX SECTION 147 OF THE ACT ITSELF INDICATES THAT IT IS IN RELATION TO INCOME ESCAPING ASSESSMENT AND APPLIES IN A CASE WHERE EITHER INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY VIRTUE OF EITHER NON-DISCLOSU RE BY WAY OF NON-FILING THE RETURN, OR NON-DISCLOSURE BY WAY OF OMISSION TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS FOR THE PURPOSE OF ASSESSMENT, OR PROCESSING OF MATERIAL ALREADY AVAIL ABLE ON RECORD, 14 IF IT IS WITHIN THE STIPULATED PERIOD OF LIMITATION THEREFORE, TO CONTEND THAT UNDISCLOSED INCOME HAS ESCAPED ASSESSM ENT DESPITE AN ASSESSMENT HAVING BEEN FRAMED UNDER CHAPTER XIV-B O F THE ACT BY ADOPT- ING THE SPECIAL PROCEDURE PRESCRIBED BY THE SAID CHAPTER IS TO CONTEND WHAT IS INHERENTLY NOT POSSIBLE. IT CANN OT BE A CASE OF NON-FILING OF RETURN CONSIDERING THE PROVISIONS OF SECTION 158BC OF THE ACT. IT CANNOT BE A CASE OF NON-DISCLOSURE OF M ATERIAL FACTS CONSIDERING THE FACT THAT EVERYTHING WHICH WAS UNDI SCLOSED HAS ALREADY BEEN UNEARTHED AT THE TIME OF SEARCH AND TH E DEFINITION OF 'UNDISCLOSED INCOME' ITSELF INDICATES THAT NOT ONLY WHAT HAS BEEN SEIZED OR RECOVERED, BUT EVEN INCOME OR PROPERTY WH ICH HAS NOT BEEN OR WOULD NOT HAVE BEEN DISCLOSED FOR THE PURPO SE OF THE ACT HAS BEEN ROPED IN. FURTHERMORE, SECTION 158BB OF TH E ACT ALSO PROVIDES NOT ONLY FOR REQUISITION OF BOOKS OF ACCOU NT OR OTHER DOCUMENTS, BUT ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH AND SUCH OTHER MATERIALS OR INFORMATION AS ARE AVAI LABLE WITH THE ASSESSING OFFICER, UNDISCLOSED INCOME OF THE BLOCK PERIOD SHALL BE COMPUTED. THEREFORE, EVEN IF ASSUMING THAT SOME INCOME HAS NO T BEEN DISCLOSED IN THE RETURN FURNISHED UNDER SECTIO N 158BC OF THE ACT, THE ASSESSING OFFICER IS BOUND TO ASSESS ALL U NDISCLOSED INCOME AFTER PROCESSING THE ENTIRE MATERIAL AVAILABLE WITH THE ASSESSING OFFICER. THE ASSESSING OFFICER COULD NOT BE HEARD T O STATE THAT UNDISCLOSED INCOME HAS ESCAPED ASSESSMENT BECAUSE T HE OFFICER FAILED TO APPLY HIS MIND TO THE MATERIAL AVAILABLE ON RECORD, THERE BEING NO LACK OF DISCLOSURE. THE PROVISIONS OF CHAPTER XIV-B OF THE ACT, MORE PA RTICULARLY SECTION 158BG OF THE ACT, PROVIDES FOR A SITUATION WHERE AN ORDER OF ASSESSMENT FOR THE BLOCK PERIOD SHALL BE PASSED WIT HOUT THE PREVIOUS APPROVAL OF EITHER THE COMMISSIONER OR DIR ECTOR, AS THE CASE MAY BE, IN RESPECT OF SEARCH CASES. IN OTHER W ORDS, NOT ONLY COULD THE ASSESSING OFFICER NOT BE AN OFFICER BELOW THE RANK OF AN ASSISTANT COMMISSIONER, ETC., BUT THE ORDER OF ASSE SSMENT FRAMED IS SCRUTINIZED BY THE HIGHEST OFFICER IN THE HIERARCHY TO ENSURE THAT : (1) NO UNDISCLOSED INCOME ESCAPES ASSESSMENT, AND ( 2) THERE IS NO HIGH PITCHED ASSESSMENT, ONLY FOR THE SAKE OF MAKIN G AN ASSESSMENT. IT WOULD NOT BE OPEN TO THE REVENUE TO CONTEND THAT DESPITE MATERIAL BEING AVAILABLE ON RECORD THE SAME ESCAPED SCRUTINY AT THE HANDS OF TWO OFFICERS, ONE OF THEM BEING A SUPERIOR OFFICER IN THE HIERARCHY. 15 THE ENTIRE SCHEME FOR BRINGING TO TAX INCOME WHICH HAS ESCAPED ASSESSMENT UNDER SECTION 147 TO 153 OF THE ACT SPEC IFICALLY RELATES TO A SPECIFIC ASSESSMENT YEAR AND DIFFERENT TIME LI MITS ARE PROVIDED AT DIFFERENT STAGES WHICH ARE ALL INTERLINKED AND C OMMENCE FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE DEFINITION OF 'ASSESSMENT YEAR' AS PROVIDED IN SECTION 2(9) OF THE ACT MEANS THE PERIOD OF 12 MONTHS COMMENCING ON THE FIRST DAY OF APRIL EVERY Y EAR. THIS DEFINITION CANNOT BE MADE APPLICABLE TO THE TERM 'B LOCK PERIOD' WHICH HAS BEEN DEFINED BY SECTION 158B(A) OF THE A CT. ON A PLAIN READING THE CONCEPT OF BLOCK PERIOD COULD NOT TAKE WITHIN ITS FOLD THE MEANING OF AN ASSESSMENT YEAR. SIMILARLY, THE T ERM 'ASSESSMENT YEAR' BY ITS VERY DEFINITION, COULD NOT BE READ TO MEAN 'BLOCK PERIOD'. THE ENTIRE SCHEME UNDER CHAPTER XIV OF THE ACT, MOR E PARTICULARLY FROM SECTIONS 147 TO 153 OF THE ACT, PERTAINING TO REASSESSMENT AND THE SPECIAL PROCEDURE FOR ASSESSING THE UNDISCLOSED INCOME OF THE BLOCK PERIOD UNDER CHAPTER XIV-B OF THE ACT ARE NOT ONLY SEPARATE AND DISTINCT FROM EACH OTHER, BUT IF AN EFFORT IS M ADE TO INCORPORATE THE SCHEME UNDER CHAPTER XIV OF THE ACT FOR THE PUR POSE ASSESSMENT OF THE BLOCK PERIOD THERE IS A CONFLICT BETWEEN THE PROVISIONS WHICH BECOMES APPARENT ON A PLAIN READING. IN THE CIRCUMS TANCES, BY THE ESTABLISHED RULES OF INTERPRETATION, UNLESS AND UNT IL A PLAIN READING OF THE TWO STREAMS OF ASSESSMENT PROCEDURE DOES NOT RESULT IN THE PROCEDURES BEING INDEPENDENTLY WORKABLE, THE QUEST ION OF RESOLVING THE CONFLICT WOULD NO ARISE. BUT IN THE LIGHT OF TH E PROVISIONS OF SECTION 158BH OF THE ACT, ONCE THERE IS A CONFLICT BETWEEN THE TWO STREAMS OF PROCEDURE THE PROVISIONS OF CHAP XIV-B OF THE ACT S HALL PREVAIL AND HAVE PRIMACY. ONCE ASSESSMENT HAS BEEN FRAMED UNDER SECTION 158BA OF THE ACT IN RELATION TO UNDISCLOSED INCOME FOR TH E BLOCK PERIOD AS A RESULT OF SEARCH THERE IS NO QUESTION OF THE ASSESS ING OFFICER ISSUING NOTICE UNDER SECTION 148 OF THE ACT FOR REOPENING S UCH ASSESSMENT AS THE SAID CONCEPT IS REPUGNANT TO THE SPECIAL SCHEME OF ASSESSMENT OF UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THE FIRST PROVISO UNDER SECTION 158BC(A) OF THE ACT SPECIFICALLY PROVIDES T HAT NO NOTICE UNDER SECTION 148 OF THE ACT IS REQUIRED TO BE ISSUED FOR THE PURPOSE OF PROCEEDINGS UNDER CHAPTER XIV-B. 16 10. HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF DR. SHIVA KANT MISHRA V CIT 380 ITR 257 HELD AS UNDER : HELD, ALLOWING THE APPEAL, THAT THE ISSUE WAS DISCU SSED IN DETAIL IN THE BLOCK ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFIC ER IN THE ASSESSMENT ORDER PASSED UNDER SECTION 158BC. THIS B LOCK ASSESSMENT ORDER UNDER SECTION 158BC WAS PASSED PRIOR TO THE I SSUANCE OF REASSESSMENT NOTICE UNDER SECTION 148. CONSEQUENTL Y, INFORMATION REGARDING THE LONG-TERM CAPITAL GAINS WAS ALREADY E XISTING ON THE FILE OF THE ASSESSEE AND DID NOT COME UP AS AN ISSUE FOR THE FIRST TIME DURING THE REASSESSMENT PROCEEDINGS UNDER SECTION 1 47. PROTECTIVE ASSESSMENT COULD ONLY BE MADE AT THE STAGE WHEN THE RE WAS ANY DOUBT OR DISPUTE ABOUT THE ASSESSABILITY OF A PARTICULAR SUM EITHER IN RELATION TO THE ASSESSMENT YEAR OR IN RELATION TO THE ASSESS EE. THE AMOUNT WHICH WAS ALLEGED TO HAVE ESCAPED ASSESSMENT WAS DU LY INDICATED BY THE ASSESSEE IN HIS RETURN UNDER SECTION 139 AND WAS ALSO CONSIDERED IN THE BLOCK ASSESSMENT ORDER UNDER SECTION 158BC. IN THE BLOCK ASSESSMENT ORDER, THE ASSESSING AUTHORITY HAD ASSES SED THIS AMOUNT OF LONG-TERM CAPITAL GAINS AS UNDISCLOSED INCOME. THE BLOCK ASSESSMENT ORDER WAS SET ASIDE ON THE GROUND THAT SUCH AMOUNT WAS NOT AN UNDISCLOSED INCOME WHICH FINDING WAS AFFIRMED BY TH E TRIBUNAL. ONCE THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT T HE AMOUNT WAS NOT AN UNDISCLOSED INCOME, WHICH ORDER HAD ATTAINED FIN ALITY, THE AMOUNT COULD NOT BE TREATED AS AN ESCAPED INCOME CHARGEABL E TO TAX UNDER SECTION 147. 11. THE DECISIONS RELIED UPON BY LD. COUNSEL FOR TH E ASSESSEE ARE ALSO ON THE SAME ISSUE HOLDING THAT RE - OPENING OF THE ASSESSMENT IN RELATION TO A MATTER W HICH IS SUBJECT MATTER OF BLOCK ASSESSMENT, IS WITHOUT JURISDICTION. THE MATERIAL ON RECORD CLEARLY PROVE D THAT THE ISSUES HAVE BEEN DISCUSSED IN DETAILED IN BLOCK ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSED UNDER SECTION 1`58BC WHICH 17 REMAINED SUBJECT MATTER IN RE-ASSESSMENT PROCEEDING S. THE BLOCK ASSESSMENT ORDER UNDER SECTION 158BC WAS PASSED PRIOR TO ISSUANCE OF RE-ASSESSMENT NOTICE UN DER SECTION 148, THEREFORE, ALL INFORMATION ON WHICH RE - ASSESSMENT ORDER NOTICE WAS ISSUED WAS ALREADY AVAI LABLE ON THE RECORD OF THE REVENUE AND WAS WITHIN THE KNOWLEDGE OF THE ASSESSING OFFICER. PROTECTIVE ASSESSMENTS WERE MADE BECAUSE PROCEEDINGS WERE PEND ING IN DEPARTMENTAL APPEAL BEFORE THE TRIBUNAL. THE AD DITIONS WHICH ARE SUBJECT MATTER OF RE-ASSESSMENT PROCEEDIN GS WERE CONSIDERED IN BLOCK ASSESSMENT ORDER WHICH HAV E BEEN SET ASIDE, THERE WAS NO QUESTION OF CONSIDERIN G THE SAME TO BE ESCAPED INCOME OF THE ASSESSEE. ONCE TH E BLOCK ASSESSMENT ORDER HAS BEEN KNOCKED DOWN, THERE IS NO REASON TO BELIEVE THAT ANY INCOME ESCAPED ASSESS MENT BECAUSE IT WAS PART OF LEGAL PROCEEDINGS UNDER SECT ION 158BC OF THE ACT. ONCE BLOCK ASSESSMENT ORDER HAS B EEN PASSED UNDER CHAPTER XIV OF THE INCOME TAX ACT IN RELATION TO UNDISCLOSED INCOME FOR THE BLOCK PERIOD AS A RESULT OF SEARCH, THERE IS NO QUESTION OF THE ASSES SING OFFICER ISSUING NOTICE UNDER SECTION 148 OF THE ACT FOR RE- OPENING OF THE ASSESSMENT AS THE SAME WAS CONTRARY TO THE SPECIAL PROVISIONS CONTAINED UNDER CHAPTER XIVB OF THE INCOME TAX ACT. THE ABOVE DECISIONS SQUARELY A PPLY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 12. THE LD. DR RELIED UPON DECISIONS OF HON'BLE SUP REME COURT IN THE CASES OF POORAN MAL AND NAND LAL TEHIL IANI 18 (SUPRA). THESE DECISIONS ARE PRIOR TO THE INSERTIO N OF THE CHAPTER XIVB IN THE ACT W.E.F. 01.07.1995, THEREFOR E, WOULD NOT SUPPORT THE CASE OF THE REVENUE. THE LD. DR ALSO RELIED UPON DECISION OF GAUHATI HIGH COURT IN THE CASE OF PEERCHAND RATTAN LAL BAID, HUF. THIS DECIS ION IS DELIVERED ON 15.05.2009, HOWEVER DECISIONS OF ALLAH ABAD HIGH COURT ABOVE AND DECISION OF GUJRAT HIGH COURT IN THE CASE OF PARKASH JEWELLERS (SUPRA) ARE LATEST DECISI ONS, AFTER DECISION OF THE GAUHATI HIGH COURT. THEREFOR E, THE LATEST JUDGEMENT FAVOURABLE TO THE ASSESSEE SHALL H AVE TO BE GIVEN PREFERENCE. 13. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. RE-OPENING OF THE ASSESSMENT IN RELATION TO THE SAME MATTER WHICH IS SUBJECT MATTER OF THE BLOCK ASSESSMENT, THEREFORE, CORRECTLY HELD TO BE W ITHOUT JURISDICTION. THE LD. CIT(APPEALS), THEREFORE, RIG HTLY QUASHED THE RE-OPENING OF THE ASSESSMENT IN THE MAT TER. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD . CIT(APPEALS). THE DEPARTMENTAL APPEAL STANDS DISMI SSED. 14. IN THE RESULT, ITA 418/2013 IS DISMISSED. ITA 419, 420 & 421/2013 ( A.YS 2001-02 TO 2003-04) 15. THE ISSUE IS SAME REGARDING QUASHING OF THE RE- ASSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE INC OME TAX ACT. THESE YEARS ALSO FALL IN BLOCK PERIOD. T HE LD. 19 CIT(APPEALS) PASSED THE SIMILAR ORDER AS WAS PASSED IN ASSESSMENT YEAR 2000-01. THEREFORE, FOLLOWING THE REASONS FOR DECISION IN ITA 418/2013 (A.Y. 2000-01) , WE DISMISS ALL THE DEPARTMENTAL APPEALS. 16. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARSHI) ( BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH AUGUST,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD