ACIT, Jaipur V. SHRI KALYAN BUILDMART PVT. LTD., Jaipur

ITA 517/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3575 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 09-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Assessee Lawyers: S R SHARMA; R K BATRA C AS
• Keywords: Search and seizure; Document seized; Tangible material; Block assessment; Condonation of delay; Reason to believe; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 143(1); 150(1); 147; 131; 148; 63; 132; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 152 & 153/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2007-08 & 08-09. M/S. KALYAN BUILDMART PVT. LTD., D-44, SUBHASH MARG, C-SCHEME, JAIPUR. CUKE VS. THE ACIT, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAKCS 1090 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 517 & 518/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2007-08 & 08-09. THE ACIT, CENTRAL CIRCLE-1, JAIPUR. CUKE VS. M/S. KALYAN BUILDMART PVT. LTD., D-44, SUBHASH MARG, C-SCHEME, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAKCS 1090 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.R. SHARMA AND SHRI R.K. BATRA (C.AS.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15.05.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 28/06/2018. VKNS'K@ ORDER PER BENCH : THESE TWO SETS OF CROSS APPEALS ARE DIRECTED AGAIN ST TWO SEPARATE ORDERS OF LD. CIT (APPEALS) BOTH DATED 31 ST MARCH, 2017 FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 RESPECTIVELY. THERE IS A DELAY OF 240 DAYS IN FILING BOTH THE APPEALS BY THE 2 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ASSESSEE. THE ASSESSEE HAS FILED THE APPLICATIONS FOR CONDONATION OF DELAY WHICH ARE SUPPORTED BY THE AFFIDAVIT. THE REASONS GIVEN IN T HE APPLICATION FOR CONDONATION OF DELAY ARE IDENTICAL FOR BOTH THE APPEALS. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R ON CONDONATION OF DELAY IN FILING THE APPEALS BY THE ASSESSEE. THE ASSESSEE H AS EXPLAINED THE CAUSE OF DELAY IN FILING THE APPEALS THAT THE LD. CIT (A) HAS DECIDED THE APPEALS OF THE ASSESSEE IN DELETING THE ADDITION MADE BY THE AO ON PROTECTIVE BASIS AND, THEREFORE, SINCE THE LD. CIT (A) HAS GIVEN A FINDING IN FAVOUR OF THE AS SESSEE ON MERITS OF THE ISSUE, THE ASSESSEE DID NOT FILE THE APPEALS AGAINST THE IMPUG NED ORDERS OF THE LD. CIT (A). HOWEVER, WHEN THE ASSESSEE RECEIVED THE NOTICE OF T HE APPEALS BY THE REVENUE, THE ASSESSEE HAS CONSULTED ITS CHARTERED ACCOUNTANT AND AFTER THE ADVISE OF THE COUNSEL, THE ASSESSEE PREFERRED THESE CROSS APPEALS WHEREIN THE VALIDITY OF REOPENING OF THE ASSESSMENTS IS CHALLENGED. THE LD. A/R OF THE ASSE SSEE HAS SUBMITTED THAT THE LD. CIT (A) HAS NOT ADJUDICATED THE GROUNDS OF THE ASSE SSEE CHALLENGING THE VALIDITY OF REOPENING OF THE ASSESSMENT BY GIVING THE REASON TH AT SINCE THE APPEALS ON MERITS WERE DECIDED IN FAVOUR OF THE ASSESSEE, THEREFORE, THE LEGAL GROUND RAISED BY THE ASSESSEE BECOMES INFRUCTUOUS. HENCE THE LD. A/R HA S PLEADED THAT ONCE THE REVENUE PREFERRED THE APPEALS AGAINST THE IMPUGNED ORDERS OF THE LD. CIT (A), THE ASSESSEE ALSO FILED THESE CROSS APPEALS AND RAISED THE ISSUE OF VALIDITY OF REOPENING OF THE ASSESSMENT. IT IS PLEADED THAT THE DELAY IN FILING THE APPEALS MAY BE CONDONED AS IT WAS NEITHER WILLFUL NOR DELIBERATE B UT DUE TO THE FACTS AND CIRCUMSTANCES AS EXPLAINED. 3 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. 2.1. ON THE OTHER HAND, THE LD. D/R HAS VEHEMENTLY OPPOSED THE CONDONATION OF DELAY IN FILING THE APPEALS AND SUBMITTED THAT THER E IS INORDINATE DELAY OF 240 DAYS IN FILING THE APPEALS AND, THEREFORE, THE ASSESSEE CAN NOT BE ALLOWED TO FILE THE APPEALS AS AND WHEN THE ASSESSEE THINKS OR DECIDE TO FILE T HE APPEALS IGNORING THE LIMITATION PROVIDED UNDER SECTION 253 (3) OF THE IT ACT. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE LD. CIT (A) HAS DELETED TH E PROTECTIVE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE WHILE PASSING THE I MPUGNED ORDERS AND CONSEQUENTLY DID NOT PROPOSE TO ADJUDICATE THE GROU NDS RAISED BY THE ASSESSEE AGAINST THE VALIDITY OF REOPENING OF THE ASSESSMENT S FOR THE ASSESSMENT YEARS UNDER CONSIDERATION. THE ASSESSEE INITIALLY DID NOT PREFE R APPEALS AGAINST THE IMPUGNED ORDERS OF THE LD. CIT (A) AS THE SAME WERE DECIDED IN FAVOUR OF THE ASSESSEE EXCEPT NON ADJUDICATION OF THE LEGAL ISSUES. SINCE THE REV ENUE HAS FILED THE APPEALS AGAINST THE IMPUGNED ORDERS OF THE LD. CIT (A), THE ASSESSE E ALSO FILED THE CROSS APPEALS AFTER RECEIVING THE NOTICE OF THE APPEALS FILED BY THE REVENUE. THUS THERE IS A DELAY OF 240 DAYS IN FILING THESE TWO APPEALS BY THE ASSE SSEE. IT IS PERTINENT TO NOTE THAT AS PER THE PROVISIONS OF SECTION 253(4) EVEN IN CA SE THE ASSESSEE OR ASSESSING OFFICER MAY NOT HAVE APPEALED AGAINST THE ORDER OF THE LD. CIT (A) BUT ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE IMPUGNED ORDER OF THE LD. CIT (A) HAS BEEN PREFERRED BY THE OTHER PARTY, HE MAY FILE A MEMORAN DUM OF CROSS OBJECTION WITHIN A PERIOD OF 30 DAYS OF RECEIPT OF NOTICE. FOR READY REFERENCE WE QUOTE SECTION 253(4) AS UNDER :- 4 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. SEC. 253(4) : THE ASSESSING OFFICER OR THE ASSESSEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE C OMMISSIONER (APPEALS), HAS BEEN PREFERRED UNDER SUB-SECTION (1) OR SUB-SECTION (2) BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MA Y NOT HAVE APPEALED AGAINST SUCH ORDER OR ANY PART THEREOF, WI THIN THIRTY DAYS OF THE RECEIPT OF THE NOTICE, FILE A MEMORANDUM OF CRO SS-OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER, AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS), AND SUCH MEMORANDUM SHALL B E DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE AN APPEAL P RESENTED WITHIN THE TIME SPECIFIED IN SUB-SECTION (3). SUCH MEMORANDUM OF CROSS OBJECTION SHALL BE DISPOSE D OFF BY THE TRIBUNAL AS IF IT WAS AN APPEAL PRESENTED WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 253 OF THE IT ACT. THEREFORE, THE ASSESSEE COULD HAVE V ERY WELL FILE THE CROSS OBJECTION AFTER RECEIVING THE NOTICE OF APPEALS FILED BY THE REVENUE AGAINST THE IMPUGNED ORDERS OF THE LD. CIT (A). THE LD. CIT (A) HAS NOT ADJUDICATED THE GROUNDS RAISED BY THE ASSESSEE REGARDING VALIDITY OF REOPENING ON THE REASON THAT THE ISSUE OF QUANTUM HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AS OBSER VED AT PAGE 73 OF THE IMPUGNED ORDER :- FURTHER, IT VIEW PRINCIPLE OF PIERCING THE CORPOR ATE VEIL TO BOOK BEHIND IT, NO ADDITION REQUIRED TO BE MADE IN THE HANDS OF THE ASSESSEE M/S. SHRI KALYAN BUILDMART PVT. LTD. AS ADDITIONS (SUPRA ) ARE REQUIRED TO BE MADE IN THE HANDS OF (I) SH RAJENDRA KR. JAIN, (II) SH NAVRATTAN KOTHARI, (III) SH VIMAL CHAND SURANA & (IV) SH KUSH AL CHAND SURANA. FURTHER, NO ADDITION IS ALSO REQUIRED TO BE MADE ON PROTECTIVE BASIS IN THE HANDS OF SH MADAN MOHAN GUPTA. 5 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. AS ISSUE OF THE QUANTUM HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THE ISSUE PERTAINING TO RE-OPEN U/S 147 OF THE ACT, HAS BECOME ACADEMIC IN NATURE, HENCE NOT ADJUDICATED. HENCE, IF THE ASSESSEE HAS PREFERRED THE PRESENT AP PEALS INSTEAD OF FILING THE CROSS OBJECTIONS THEN THE DELAY IN FILING THESE APPEALS A RE ONLY BECAUSE OF THE TECHNICAL REASON OF NOT PREFERRING THE CROSS OBJECTIONS AND F URTHER SINCE THE ISSUE ON MERITS WAS DECIDED BY THE LD. CIT (A) IN FAVOUR OF THE ASS ESSEE, THEN TO PROTECT ITS INTEREST THE ASSESSEE HAS PREFERRED THESE CROSS APPEALS. AC CORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT FILING THE APPEALS BELATEDLY THE ASSESSEE COULD NOT ACHIEVE ANY ULTERIOR PURPOSE IN UNDER-HAN D WAY. HENCE WE CONDONE THE DELAY OF 240 DAYS IN FILING OF BOTH THESE APPEALS. 4. THE ASSESSEE HAS RAISED COMMON GROUNDS IN THESE TWO APPEALS AS UNDER :- ITA NO. 152/JP/2018 A.Y. 2007-08 : 1. THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS ERRED IN NOT ADJUDICATING THE GROUND THAT T HE LD. ASSESSING OFFICER HAS ERRED IN ISSUANCE OF NOTICE U NDER SECTION 148 OF THE INCOME TAX ACT, 1961 (THE ACT) AND MAKIN G ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE A CT. THE LD. ASSESSING OFFICER FAILED TO APPRECIATE THAT CONDITI ONS FOR REOPENING THE ASSESSMENT AS MENTIONED IN FIRST PROV ISO TO SECTION 147 OF THE ACT ARE NOT FULFILLED BEFORE ISS UANCE OF NOTICE UNDER SECTION 148 OF THE ACT. 2. THAT THE INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT IN CASE OF THE APPELLANT BY LD. ASSESSING OFFICER IS OTHERWISE ALS O WRONG AND BAD IN LAW IN AS MUCH AS FOR INITIATING PROCEEDINGS UNDER SECTION 147 OF THE ACT THE LD. ASSESSING OFFICER CONSIDERED THE DOCUMENTS SEIZED IN SEARCH ACTION UNDER SECTION 132 OF THE ACT ON A THIRD PARTY WHICH LD. ASSESSING OFFICER HELD T HAT IT BELONGS TO OR INFORMATION CONTAINED THEREIN RELATES TO THE APPELLANT AND 6 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. THUS ON THESE FACTS OF THE CASE THE LD. ASSESSING O FFICER IN LAW COULD ONLY INITIATE ACTION UNDER SECTION 153C OF TH E ACT. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL HEREIN AND TO SUBMIT STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDERED NECESSARY EITHER AT OR BEFORE HEARING OF APPEAL. THE REVENUE HAS ALSO RAISED COMMON GROUNDS EXCEPT T HE DIFFERENCE OF QUANTUM IN THESE APPEALS AS UNDER :- ITA NO. 517/JP/2017 A.Y. 2007-08 : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (A) WAS RIGHT IN DELETING THE ADDITION OF RS. 5,00.00.000/- MADE BY THE AO ON PROTECTIVE BASIS AN D, IN NOT ISSUING DIRECTIONS U/S 150(1) OF THE I.T. ACT F OR TAXING THE SAID AMOUNT IN THE HANDS OF SH. MADAN MOHAN GUP TA AND SMT. SHASHIKALA GUPTA WHO WERE THE SHARE HOLDER S OF THE ASSESSEE COMPANY, AS THE LAND RIGHTS WERE TRANSFERRED THROUGH SALE OF SHARES OF ASSESSEE COMP ANY. THE APPELLANT CRAVE LEAVE OR RESERVES THE RIGHT TO AMEND MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEA L AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 5. FOR THE ASSESSMENT YEAR 2007-08 THE ASSESSEE HAS NOT PRESSED GROUND NO. 2. THE LD. A/R OF THE ASSESSEE HAS STATED AT BAR THAT SINCE THE ASSESSMENT YEAR 2007- 08 IS BEYOND THE PERIOD OF SIX YEARS FROM THE DATE OF SEARCH, THEREFORE, THE ASSESSEE DOES NOT PRESS GROUND NO. 2 AND THE SAME MAY BE DIS MISSED AS NOT PRESSED. THE LD. D/R HAS RAISED NO OBJECTION AS THE GROUND NO. 2 OF THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2007-08 IS DISMISSED AS NOT PRESSED . 7 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. GROUND NO. 1 OF THE ASSESSEES APPEAL IS REGARDING VALIDITY OF REOPENING THE ASSESSMENT. 6. THERE WAS A SEARCH AND SEIZURE OPERATION UNDER S ECTION 132 OF THE IT ACT IN CASE OF SHRI RAJENDRA JAIN GROUP AND HIS ASSOCIATES GROUP MEMBERS ON 23 RD MAY, 2013. DURING THE COURSE OF SEARCH AND SEIZURE OPER ATION CERTAIN INCRIMINATING MATERIALS WERE FOUND AND SEIZED INCLUDING A DIARY F ROM POSSESSION OF SHRI MADAN MOHAN GUPTA. THE SAID DIARY ALLEGEDLY CONTAINED TR ANSACTIONS OF CASH DEALING IN RESPECT OF LAND SITUATED AT VILLAGE CHAINPURA, BEHI ND ENTERTAINMENT PARADISE, TEHSIL SANGANER, JAIPUR (RAJASTHAN). THE STATEMENT OF SHR I MADAN MOHAN GUPTA WAS RECORDED DURING THE SEARCH AND POST SEARCH ENQUIRY WHEREIN HE STATED THAT THE LAND IN QUESTION WAS PURCHASED BY SHRI RAJENDRA KUMAR JA IN THROUGH HIM. THE DEAL WAS STATED TO BE FINALIZED AT RS. 12,43,27,000/- ON WHI CH DISCOUNT OF 1% WAS ALLOWED FOR REGISTRATION OF LAND. THEREFORE, A NET PAYABLE AMOU NT OF RS. 12,30,84,000/- WAS AGREED BY THE PARTIES. LATER ON, THIS LAND WAS SOLD TO SHRI K.G. KOTHARI BY WAY OF TRANSFER OF SHARES OF M/S. KALYAN BUILDMART PVT. LT D. IN THE LAND WHICH WAS ORIGINALLY PURCHASED. THUS SHRI MADAN MOHAN GUPTA STATED THAT HE PURCHASED THE LAND ON BEHALF OF SHRI RAJENDRA JAIN. SUBSEQUENTLY, THE LAN D WAS STATED TO HAVE BEEN SOLD TO SHRI NAVRATAN KOTHARI, SHRI VIMAL CHAND SURANA HUF AND SHRI KUSHAL CHAND SURANA BY WAY OF SALE DEED/TRANSFER OF SHARES OF M/S. KALY AN BUILDMART PVT. LTD. ON THE BASIS OF THE SEIZED MATERIAL FOUND DURING THE SEARC H CONDUCTED ON 23 RD MAY, 2013 AND STATEMENT OF SHRI MADAN MOHAN GUPTA, THE A.O. P ROPOSED TO REOPEN THE ASSESSMENT BY ISSUING THE NOTICE UNDER SECTION 148 DATED 27 TH MARCH, 2014 TO ASSESS THE INCOME OF RS. 5,00,00,000/- BEING ON MO NEY PAID IN RESPECT OF PURCHASE 8 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. OF LAND VIDE SALE DEED DATED 24 TH AUGUST, 2006. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 147 READ WITH SECTION 143(3) ON 27 TH MARCH, 2015 BUT MADE THE ADDITION OF THE SAID AMOUNT OF RS. 5,00,00,000/- IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AS THE ADDITION ON SUBSTANTIVE BAS IS HAS BEEN MADE IN THE CASE OF SHRI MADAN MOHAN GUPTA. THE ASSESSEE CHALLENGED TH E ACTION OF THE AO BEFORE LD. CIT (A) AND ALSO CHALLENGED THE VALIDITY OF REOPENI NG. THE LD. CIT (A) DELETED THE ADDITION MADE BY THE AO ON PROTECTIVE BASIS AND, TH EREFORE, DID NOT PREFER TO ADJUDICATE THE ISSUE OF VALIDITY OF REOPENING ON TH E GROUND THAT IT BECOMES ACADEMIC IN NATURE. 7. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 20 TH FEBRUARY, 2008 AND THE SAID RETURN WAS PROCESSED UNDER SECTION 143(1). HE HAS FURTHER CON TENDED THAT THE REASONS RECORDED BY THE AO FOR REOPENING OF THE ASSESSMENT DO NOT REVEAL ANY INCOME ASSESSABLE TO TAX IN THE HANDS OF THE ASSESSEE ESCA PED ASSESSMENT. THE ASSESSEE HAD DULY RECORDED THE TRANSACTION OF PURCHASE OF LA ND IN ITS BOOKS OF ACCOUNT AND ALSO SHOWN IN THE BALANCE SHEET AS ON 31 ST MARCH, 2007. THEREFORE, IN THE ABSENCE OF ANY MATERIAL OR EVEN IN THE ABSENCE OF ANY ALLEG ATION IN THE STATEMENT OF SHRI MADAN MOHAN GUPTA THAT THE ASSESSEE HAS PAID ANY MO NEY OVER AND ABOVE SHOWN IN THE SALE DEED AND DULY RECORDED IN THE BOOKS OF ACCOUNTS, THE AO WAS HAVING NO BASIS TO FORM THE BELIEF THAT THE ALLEGED INCOME OF RS. 5,00,00,000/- HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. THE LD. A /R HAS FURTHER CONTENDED THAT THERE MUST BE SOME MATERIAL ON RECORD TO ENABLE THE AO TO ENTERTAIN BELIEF OR FOR INITIATING REASSESSMENT PROCEEDINGS. THE MATERIAL ON RECORD SHOULD BE SUCH AS TO 9 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. LEAD TO THE INFERENCE THAT INCOME HAS ESCAPED ASSES SMENT. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF HONB LE SUPREME COURT IN CASE OF ITO VS. LAKHMANI MEWAL DAS, 103 ITR 437 (SC) AND SUBMIT TED THAT THERE SHOULD BE A RATIONAL CONNECTION/DIRECT NEXUS OR LIVE LINK BETWE EN THE MATERIAL AND THE BELIEF. IN THE ABSENCE OF RATIONAL AND INTELLIGIBLE NEXUS BETW EEN THE MATERIAL AND THE BELIEF, THE AO COULD NOT HAVE REASON TO BELIEVE THAT ANY PA RT OF THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. THE LD. A/R HAS FURTHER CO NTENDED THAT THE ASSESSEE COMPANY WAS INCORPORATED ON 21.08.2006 AND THE TRAN SACTION OF PURCHASE OF THE LAND IN QUESTION WAS DONE VIDE SALE DEED DATED 24.0 8.2006. THEREFORE, THERE IS NO QUESTION OF ASSESSEE JUST ON THE DATE OF INCORPORAT ION COULD HAVE ANY UNDISCLOSED INCOME. THE REASONS FOR FORMING OF BELIEF DO NOT H AVE A RATIONAL CONNECTION WITH THE RELEVANT MATERIAL AS THE BASIS OF REOPENING OF THE ASSESSMENT. THE LD. A/R HAS FURTHER CONTENDED THAT THE REASSESSMENT PROCEEDINGS CANNOT BE INITIATED TO MAKE A PROTECTIVE ASSESSMENT AS DID BY THE AO IN THE CASE OF THE ASSESSEE. THEREFORE, THE AO WAS NOT HAVING ANY REASONABLE AND RATIONAL BASIS TO BELIEVE THAT THE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT. HE HAS R ELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF DHLF VENTU RE CAPITAL FUND VS. ITO, 358 ITR 471 (BOM.). 7.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT THERE IS NO DISPUTE THAT THE LAND IN QUESTION WAS PURCHASED BY THE ASSESSEE VIDE SALE DEED DATED 24.08.2006. THE SEIZED MATERIAL AND PARTICULARLY THE DIARY CONT AINS THE TRANSACTIONS OF CASH PAYMENT AGAINST THE PURCHASE OF THE LAND IN QUESTIO N AND, THEREFORE, THE PRIMA FACIE TANGIBLE MATERIAL WAS CAME TO THE NOTICE OF THE AO WHICH REVEALED THAT AN INCOME 10 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ASSESSABLE TO TAX IN THE HANDS OF THE ASSESSEE HAD ESCAPED ASSESSMENT. THE LD. D/R HAS FURTHER CONTENDED THAT WHEN THE PURCHASE TR ANSACTION IS NOT IN DISPUTE THEN ALL OTHER CONNECTED TRANSACTIONS OF THE PURCHASE OF THE LAND ARE ALSO DONE ON BEHALF OF THE ASSESSEE AND THE INCOME RESULTING IN THE TRA NSACTIONS OF PAYMENT OF CASH HAS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE. AT T HE TIME OF REASSESSMENT PROCEEDINGS, THE AO IS NOT REQUIRED TO ESTABLISH TH E CORRECTNESS OF THE REASONS TO BELIEF BUT IF ON THE BASIS OF THE MATERIAL AVAILABL E WITH THE AO A PRIMA FACIE REASONABLE BELIEF CAN BE FORMED THAT AN INCOME ASSE SSABLE TO TAX HAS ESCAPED ASSESSMENT THEN THE INITIATION OF REASSESSMENT PROC EEDINGS ARE VALID AND JUSTIFIED. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE COMP ANY HAD PURCHASED THE LAND IN QUESTION VIDE SALE DEED DATED 24.08.2006. THE SAID TRANSACTION OF PURCHASE OF LAND WAS DULY RECORDED IN THE BOOKS OF ACCOUNTS OF THE A SSESSEE AND ALSO REFLECTED IN THE BALANCE SHEET AS ON 31 ST MARCH, 2007. THE ORIGINAL RETURN OF INCOME WAS FI LED BY THE ASSESSEE ON 20 TH FEBRUARY, 2008 WHICH WAS PROCESSED UNDER SECTION 1 43(1) BY THE AO. THE REOPENING OF THE ASSESSMENT IS BASED O N THE SEIZED MATERIAL AND STATEMENT RECORDED UNDER SECTION 132(4) OF SHRI MAD AN MOHAN GUPTA PURSUANT TO THE SEARCH UNDER SECTION 132 OF THE ACT ON 23 RD MAY, 2013 IN THE CASE OF SHRI RAJENDRA JAIN GROUP. SINCE THIS ASSESSMENT UNDER C ONSIDERATION IS BEYOND THE PERIOD OF SIX YEARS FROM THE DATE OF SEARCH, THEREF ORE, IT WAS NOT FALLING IN THE SCOPE OF SECTION 153A/153C OF THE ACT AND CONSEQUENTLY TH E AO REOPENED THE ASSESSMENT BY ISSUING THE NOTICE UNDER SECTION 148 ON 27 TH MARCH, 2014. THE REASONS RECORDED BY THE AO FOR REOPENING OF THE ASSESSMENT ARE AS UN DER :- 11 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. DURING THE COURSE SEARCH AND SEIZURE OPERATION IN THE CASE OF RAJENDRA JAIN GROUP DOS 23-05-2013 AND SURVEY PROCE EDINGS AT THE BUSINESS PREMISES OF SHRI MADAN MOHAN GUPTA, CERTAI N INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED WHICH WERE INVENTOR IES AS EXHIBIT 1 TO 5 OF ANNEXURE-AS AND EXHIBIT 1 TO 8 OF ANNEXURE- A. THE DOCUMENTS FOUND AND SEIZED FROM THE RESIDENCE AND BUSINESS PR EMISE OF SHRI MADAN MOHAN GUPTA DURING THE COURSE OF SEARCH PROCE EDINGS REVEALED THAT ON VARIOUS PAGE OF EXHIBIT-1, 2 & 5 OF ANNEXUR E A AS WELL AS EXHIBIT-1 OF ANNEXURE AS, SOME DATE WISE AMOUNTS HA VE BEEN WRITTEN IN THE NAME OF KGK. THESE TRANSACTIONS TOTAL UP T O RS. 5,00,00,000/-. IT IS FURTHER SEEN THAT THESE TRANSACTIONS ARE IN R ESPECT OF THE REGISTERED SALE DEEDS MADE IN FAVOUR OF SHRI KALYAN BUILDMART ON 24.08.2006 FALLING IN FY 2006-07 I.E. AY 2007-08. T HE DETAILS OF CASH PAYMENT ARE IN RESPECT OF THE REGISTERED SALE DEED MENTIONED ABOVE. THE ASSESSEE HAS FAILED TO SATISFACTORILY EXPLAIN T HE TRANSACTIONS RECORDED ON THIS PAGE. I HAVE THUS REASON TO BELIEV E THAT INCOME TO THE EXTENT OF RS. 5,00,00,000/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT, 1961. THUS THE REOPENING IS BASED ON CERTAIN INCRIMINATIN G DOCUMENTS FOUND AND SEIZED DURING THE SEARCH AND SEIZURE OPERATION DATED 23 RD MAY, 2013 AS WELL AS THE STATEMENT OF SHRI MADAN MOHAN GUPTA RECORDED DURING THE SEARCH PROCEEDINGS. THE AO PROPOSED TO REASSESS THE INCOME OF RS. 5,00,00,0 00/- IN THE HANDS OF THE ASSESSEE BEING THE CASH PAYMENT IN RESPECT OF THE T RANSACTION OF PURCHASE OF LAND VIDE SALE DEED DATED 24.08.2006. IT IS PERTINENT T O NOTE THAT THE ASSESSEE COMPANY WAS INCORPORATED ON 21.08.2006 AND THERE WAS NO BUS INESS ACTIVITY BETWEEN 21.08.2006 TO 24.08.2006. THEREFORE, THE PAYMENT O F ALLEGED ON MONEY OF RS. 5,00,00,000/- CANNOT BE IMPUTED IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INCOME WHEN THE ASSESSEE ITSELF HAS CAME INTO EXIST ENCE ONLY ON 21.08.2006. THIS FACT OF INCORPORATION OF THE ASSESSEE ON 21.08.2006 WAS VERY WELL EXPLAINED BY SHRI 12 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. MADAN MOHAN GUPTA WHO IS THE PROMOTER OF THE ASSESS EE COMPANY ALONG WITH HIS WIFE AND SUBSEQUENTLY THE SHARES OF THE ASSESSEE CO MPANY WAS SOLD/TRANSFERRED TO SHRI NAVRATAN KOTHARI, SHRI VIMAL CHAND SURANA HUF AND SHRI KUSHAL CHAND SURANA. THE DOCUMENTS WERE FOUND AND SEIZED FROM SHRI MADAN MOHAN GUPTA AND IN HIS STATEMENT IT WAS EXPLAINED THAT THE TRANSACTIONS RE CORDED IN THE DIARY PERTAINS TO CASH DEALINGS REGARDING THE PURCHASE OF LAND IN QUE STION ON BEHALF OF ONE SHRI RAJENDRA JAIN. HENCE, EXCEPT THE ACTUAL TRANSACTIO N OF PURCHASE OF LAND BY THE ASSESSEE VIDE SALE DEED DATED 24.08.2006 WHICH IS D ULY RECORDED IN THE BOOKS OF ACCOUNTS, THERE IS NO MATERIAL OR DOCUMENT FOUND AN D SEIZED DURING THE SEARCH AND SEIZURE ACTION WHICH REVEALS OR INDICATES PAYMENT O F ANY CASH BY THE ASSESSEE. THE TRANSACTIONS RECORDED IN THE SEIZED MATERIAL WERE E XPLAINED BY SHRI MADAN MOHAN GUPTA AS THE AMOUNT RECEIVED FROM SHRI RAJENDRA JAI N AND, THEREFORE, IN THE ABSENCE OF ANY ALLEGATION OR ANY FACT RECORDED IN T HE SEIZED DOCUMENT OR REVEALED IN THE STATEMENT MADE BY SHRI MADAN MOHAN GUPTA THAT T HE ALLEGED PAYMENT WAS MADE BY THE ASSESSEE, THERE IS NO RATIONAL IN FORMI NG THE BELIEF THAT AN AMOUNT OF RS. 5,00,00,000/- WAS ASSESSABLE TO TAX IN THE HAND S OF THE ASSESSEE HAS ESCAPED ASSESSMENT PARTICULARLY KEEPING IN VIEW THE FACT TH AT THE ASSESSEE ITSELF WAS INCORPORATED ON 21.08.2006. THE HONBLE BOMBAY HIG H COURT IN CASE OF DHLF VENTURE CAPITAL FUND VS. ITO (SUPRA) HAS HELD IN PA RA 18 AND 19 AS UNDER :- 18. A PROTECTIVE ASSESSMENT AS THE LEARNED AUTHOR INDICATES IS REGARDED AS BEING PROTECTIVE BECAUSE IT IS AN ASSESSMENT WHICH IS MADE EX ABUNDANTI CAUTELA WHERE THE DEPARTMENT HAS A 'DOUBT AS TO THE PERSON WHO IS OR WILL BE DEEMED TO BE IN RECEIPT OF THE INCOME'. A DEPARTMEN TAL PRACTICE, WHICH HAS GAINED JUDICIAL RECOGNITION, HAS EMERGED WHERE IT A PPEARS TO THE ASSESSING 13 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. OFFICER THAT INCOME HAS BEEN RECEIVED DURING THE RE LEVANT ASSESSMENT YEAR, BUT WHERE IT IS NOT CLEAR OR UNAMBIGUOUS AS TO WHO HAS RECEIVED THE INCOME. SUCH A PROTECTIVE ASSESSMENT IS CARRIED OUT IN ORDE R TO ENSURE THAT INCOME MAY NOT ESCAPE TAXATION ALTOGETHER PARTICULARLY IN CASE S WHERE THE REVENUE HAS TO BE PROTECTED AGAINST THE BAR OF LIMITATION. BUT EQU ALLY WHILE A PROTECTIVE ASSESSMENT IS PERMISSIBLE A PROTECTIVE RECOVERY IS NOT ALLOWED. HOWEVER, SUCH AN EXERCISE WHICH IS PERMISSIBLE IN THE CASE OF A R EGULAR ASSESSMENT MUST NECESSARILY YIELD TO THE DISCIPLINE OF THE STATUTE WHERE RECOURSE IS SOUGHT TO BE TAKEN TO THE PROVISIONS OF SECTION 148 . PROTECTIVE ASSESSMENTS HAVE EMERGED AS A MATTER OF DEPARTMENTAL PRACTICE WHICH HAS FOUN D JUDICIAL RECOGNITION. ANY PRACTICE HAS TO NECESSARILY YIELD TO THE RIGOUR OF A STATUTORY PROVISION. HENCE, WHEN RECOURSE IS SOUGHT TO BE TAKEN TO THE PROVISIO NS OF SECTION 148 , THERE HAS NECESSARILY TO BE THE FULFILMENT OF THE JURISDICTIO NAL REQUIREMENT THAT THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. TO ACCEPT THE CONTENTION OF THE REVENUE IN THE PRESENT CASE WOULD BE TO ALLOW A REOPENING OF AN ASSESSMENT UNDER SECTION 148 ON THE GROUND THAT THE ASSESSING OFFICER IS OF THE OPINION THAT A CONT INGENCY MAY ARISE IN FUTURE RESULTING AN ESCAPEMENT OF INCOME. THAT WOULD, IN O UR VIEW, BE WHOLLY IMPERMISSIBLE AND WOULD AMOUNT TO A REWRITING OF TH E STATUTORY PROVISION. MOREOVER, THE RELIANCE WHICH IS SOUGHT TO BE PLACED ON THE PROVISIONS OF EXPLANATION 2(A) TO SECTION 147 IS MISCONCEIVED. EXPLANATION 2 PROVIDES A DEEMING DEFINITION OF CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND CLAUSE (A) INCLUDES A CASE WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS INCOME OR TH E INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE EXCEEDS THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO TAX. AS THE REASONS WHIC H HAVE BEEN DISCLOSED TO THE ASSESSEE WOULD INDICATE, THIS IS NOT A CASE WHE RE AN ASSESSEE HAS NOT FILED A RETURN OF INCOME SIMPLICITER. THE WHOLE BASIS OF TH E REOPENING IS ON THE HYPOTHESIS THAT IF THE PROVISIONS OF SECTIONS 61 TO 63 ARE ATTRACTED AS HAS BEEN CLAIMED BY THE ASSESSEE, AND THE INCOME OF RS.32.83 CRORES WHICH HAS BEEN CLAIMED BY THE ASSESSEE TO BE EXEMPT IS TREATED AS EXEMPT, IN THAT EVENT AN ALTERNATE BASIS FOR TAXING THE INCOME IN THE HANDS OF THE AOP OF THE CONTRIBUTORIES IS SOUGHT TO BE SET UP. FOR THE REAS ONS ALREADY INDICATED, THE ENTIRE EXERCISE IS ONLY CONTINGENT ON A FUTURE EVEN T AND A CONSEQUENCE THAT MAY ENURE UPON THE DECISION OF THE TRIBUNAL, THAT A GAIN IF THE TRIBUNAL WERE TO HOLD AGAINST THE REVENUE. A REOPENING OF AN ASSESSM ENT UNDER SECTION 148 CANNOT BE JUSTIFIED ON SUCH A BASIS. THERE HAS TO BE A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 'HAS ESCAPED ASSESSM ENT' INDICATES AN EVENT WHICH HAS TAKEN PLACE. TAX LEGISLATION CANNOT BE RE WRITTEN BY THE REVENUE OR THE COURT BY SUBSTITUTING THE WORDS 'MAY ESCAPE ASS ESSMENT' IN FUTURE. WRITING LEGISLATION IS A CONSTITUTIONAL FUNCTION ENTRUSTED TO THE LEGISLATURE. 19. IN THE VIEW WHICH WE HAVE TAKEN IT HAS NOT BEEN NECESSARY FOR THE COURT NOR IS IT APPROPRIATE FOR THIS COURT TO ENTER UPON THE MERITS OF THE OTHER ISSUES RAISED BY THE LEARNED SENIOR COUNSEL APPEARING ON B EHALF OF THE ASSESSEE. THE APPEAL BEFORE THE TRIBUNAL IS STILL PENDING AND HEN CE, IT WOULD NOT BE PROPER FOR THIS COURT TO EXPRESS ANY OPINION THEREON. WE C LARIFY THAT WE ARE ALLOWING THIS PETITION ON THE GROUND THAT THE JURISDICTIONAL REQUIREMENT FOR REOPENING AN 14 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ASSESSMENT UNDER SECTION 147 FOR ASSESSMENT YEAR 2008-09 HAS NOT BEEN FULFILLED. THEREFORE, WHEN THE AO FINALLY FOUND THAT THE MATER IAL ON THE BASIS OF WHICH THE PROCEEDINGS FOR REASSESSMENT WERE INITIATED WERE NO T SUFFICIENT TO ASSESS THE INCOME AND ONLY MADE A PROTECTIVE ASSESSMENT THEN SUCH AN EXERCISE OF THE AO IS NOT PERMISSIBLE TO TAKE A CHANCE BY RESORTING TO THE PR OVISIONS OF SECTION 147/148 OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, FACTS AND CI RCUMSTANCES OF THE CASE AND THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F DHLF VENTURE CAPITAL FUND VS. ITO (SUPRA), WE HOLD THAT THE REOPENING OF THE ASSE SSMENT IS NOT VALID AND CONSEQUENTLY WE QUASH THE REOPENING AND REASSESSMEN T MADE BY THE AO. GROUND NO. 2 FOR THE ASSESSMENT YEAR 2008-09. 9. APART FROM CHALLENGING THE VALIDITY OF REOPENING IN GROUND NO. 1 AS COMMON, THE ASSESSEE HAS ALSO CHALLENGED THE REOPENING ON T HE GROUND THAT WHEN THE REOPENING IS BASED ON THE SEIZED MATERIAL, THEN THE ONLY COURSE AVAILABLE WITH THE AO IS TO INITIATE THE PROCEEDINGS UNDER SECTION 153 C READ WITH SECTION 153A OF THE IT ACT AND NOT UNDER SECTION 147/148 OF THE ACT. 10. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/ R. THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 1 ST OCTOBER, 2008. SUBSEQUENTLY, ON THE BASIS OF THE SEIZED MATERIAL AND STATEMENT OF SHRI MADAN MOHAN GUPTA IN PURSUANT TO THE SEARCH AND SEIZURE UNDER SECTION 132 ON 23 RD MAY, 2013 THE AO REOPENED THE ASSESSMENT BY RECORDING THE REASONS AS UNDER :- 15 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. DURING THE COURSE SEARCH AND SEIZURE OPERATION IN THE CASE OF RAJENDRA JAIN GROUP DOS 23-05-2013 AND SURVEY PROCE EDINGS AT THE BUSINESS PREMISES OF SHRI MADAN MOHAN GUPTA, CERTAI N INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED WHICH WERE INVENTOR IES AS EXHIBIT 1 TO 5 OF ANNEXURE-AS AND EXHIBIT 1 TO 8 OF ANNEXURE- A. THE DOCUMENTS FOUND AND SEIZED FROM THE RESIDENCE AND BUSINESS PR EMISE OF SHRI MADAN MOHAN GUPTA DURING THE COURSE OF SEARCH PROCE EDINGS REVEALED THAT ON VARIOUS PAGE OF EXHIBIT-1, 2 & 5 OF ANNEXUR E A AS WELL AS EXHIBIT-1 OF ANNEXURE AS, SOME DATE WISE AMOUNTS HA VE BEEN WRITTEN IN THE NAME OF KGK. THESE TRANSACTIONS NOTED ON P AGE NO. 28, 43, 69 AND 73 OF EXHIBIT-1 OF ANNEXURE-A TOTAL UP TO RS.14 ,24,12,650/-. IT IS FURTHER SEEN THAT THESE TRANSACTIONS ARE IN RESPECT OF THE SALE DEED MADE IN FAVOUR OF SHRI KALYAN BUILDMART PVT. LTD. M ADE ON 24.08.2006. HOWEVER, THE CASH TRANSACTIONS DETAILED ABOVE HAVE BEEN MADE DURING FY 2007-08 I.E. AY 2008-09. THE ASSESSEE HAS FAILED TO SATISFACTORILY EXPLAIN THE TRANSACTIONS RECORDED ON THIS PAGE. I H AVE THUS REASON TO BELIEVE THAT INCOME TO THE EXTENT OF RS. 14,24,12,6 50/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT, 1961. THUS IT IS CLEAR THAT THE REOPENING IS BASED ON THE INCRIMINATING DOCUMENTS SEIZED DURING THE SEARCH AND SEIZURE ACTION AND WERE INVEN TORIZED AS EXHIBIT 1-5 OF ANNEXURE AS AND EXHIBIT 1-8 OF ANNEXURE-A. WHEN TH E AO HIMSELF HAS INITIATED THE PROCEEDINGS OF REASSESSMENT ON THE BASIS OF THE SEI ZED MATERIAL, THEN A QUESTION ARISES WHETHER INVOKING OF PROVISIONS OF SECTION 14 7/148 BY THE AO WAS RIGHT AND LEGAL COURSE OR NOT. AT THE OUTSET, WE NOTE THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN CASE OF SHRI NAVRATAN KOTHARI V S. ACIT VIDE ORDER DATED 13.12.2017 IN ITA NO. 425/JP/2017 IN PARA 6 AS UND ER :- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE MATTER REVOLVES AROUND THE TRANSACTI ON OF PURCHASE AND SALE OF LAND SITUATED AT VILLAGE CHAINPURA, TEHSIL SANGA NER (BEHIND OF ENTERTAINMENT PARADISE) JAIPUR. THE SAID LAND WAS P URCHASED BY M/S SHRI 16 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. KALYAN BUILDMART PVT. LTD. ON 24.08.2006. THEREAFT ER THE ASSESSEE PURCHASED 8,000 SHARES M/S SHRI KALYAN BUILDMART PVT. LTD. FR OM SHRI MADAN MOHAN GUPTA AND HIS WIFE SMT. SHASHI KALA GUPTA. THERE IS NO DISPUTE THAT THIS TRANSFER OF PURCHASE OF SHARES OF M/S SHRI KALYAN B UILDMART PVT. LTD. WAS DULLY REFLECTED IN THE BOOKS OF ACCOUNTS AS ON 31.03.2008 AND ALSO BROUGHT BEFORE THE ASSESSING OFFICER IN THE COURSE OF INITIATION A SSESSMENT COMPLETED U/S 143(3) R.W.S. 153A ON 31.03.2013. THEREAFTER THE AO PROPOSED TO REOPEN THE ASSESSMENT TO ASSESS THE CONSIDERATION PAID BY THE ASSESSEE FOR ALLEGED PURCHASE OF LAND BY ISSUING NOTICE U/S 148 ON 25.03 .2014. THE AO RECORDED THE REASONS FOR REOPENING OF THE ASSESSMENT AS REPR ODUCE AT PAGE 4 OF THE ASSESSMENT ORDER ARE AS UNDER:- DURING THE COURSE SEARCH AND SEIZURE OPERATION IN THE CASE OF RAJENDRA JAIN GROUP DOS 23-05-2013 AND SURVEY PROCE EDINGS AT THE BUSINESS PREMISES OF SHRI MADAN MOHAN GUPTA, CERTAI N INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED WHICH WERE INVENTOR IES AS EXHIBIT 1 TO 5 OF ANNEXURE-AS AND EXHIBIT 1 TO 8 OF ANNEXURE- A. THE DOCUMENTS FOUND AND SEIZED FROM THE RESIDENCE AND BUSINESS PR EMISE OF SHRI MADAN MOHAN GUPTA DURING THE COURSE OF SEARCH PROCE EDINGS REVEALED THAT ON VARIOUS PAGE OF EXHIBIT- 1,2 & 5 OF ANNEXUR E-A AS WELL AS EXHIBIT-1 OF ANNEXURE-AS, SOME DATE WISE AMOUNTS HA VE BEEN WRITTEN IN THE NAME OF KGK. THESE TRANSACTIONS NOTED ON P AGE NO. 28,43,69 AND 73 OF EXHIBIT-1 OF ANNEXURE-A TOTAL UP TO RS. 1 4,24,12,650/-. THE ASSESSEE HAS FAILED TO SATISFACTORILY EXPLAIN THE T RANSACTIONS RECORDED ON THIS PAGE. I HAVE THUS REASON TO BELIEVE THAT IN COME TO THE EXTENT OF RS. 14,24,12,650/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147OF THE I.T. ACT, 1961. THUS, IT IS CLEAR THAT THE BASIS OF REOPENING OF TH E ASSESSMENT IS THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZ URE OPERATION IN THE CASE OF RAJENDRA JAIN GROUP AND THE STATEMENT OF SHRI MA DAN MOHAN GUPTA RECORDED U/S 132(4) AND 131 OF THE ACT. THE ASSE SSING OFFICER ANALYZED THE STATEMENT AND THE SEIZED MATERIAL FOR HIS SATISFACT ION AS RECORDED IN PARAS 4 AND 5 OF THE ASSESSMENT ORDER AS UNDER:- 17 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. 4. IN HIS STATEMENTS, RECORDED DURING THE COURSE O F SEARCH/POST SEARCH PROCEEDINGS, SHRI MADAN MOHAN GUPTA SUBMITTED THAT THE FOLLOWING PAGERS OF VARIOUS EXHIBITS ARE RELATED TO LAND TRAN SACTIONS AT CHAINPURA BEHIND ENTERTAIN PARADISE, JAIPUR. SR. ANNEXURE NO. & EXHIBIT NO. PAGE NO. FOUND/SEIZED FROM 1 ANNEXURE A EXHIBIT - 1 15 TO 24,27,38,43,44, AND 69 TO 74 RESIDENTIAL PREMISES 2 ANNEXURE A EXHIBIT - 2 47 AND BACK SIDE OF 48, 50 TO 54 RESIDENTIAL PREMISES 3 ANNEXURE A EXHIBIT - 5 1 TO 77 RESIDENTIAL PREMISES 4 ANNEXURE AS EXHIBIT - 1 1 TO 3,7,9,10 OFFICE PREMISES 5. FURTHER IN THE STATEMENTS OF SHRI MADAN MOHAN GU PTA, HE SUBMITTED THAT ON THE ABOVE PAGE, DETAILS W.R.T. A LAND TRANS ACTIONS AT VILLAGE CHAINPURA BEHIND ENTERTAINMENT PARADISE, JAIPUR HAS BEEN RECORDED WHICH WAS PURCHASE BY SHRI RAJENDRA KUMAR JAIN RE SIDENT OF D-25, LAL BAHADUR NAGAR, JAIPUR, THROUGH HIM I.E. SHRI MA DAN MOHAN GUPTA. THE DEAL WAS FINALIZED AT RS. 12,43,27,000/- OUT OF WHICH DISCOUNT OF RS. 1% WAS ALLOWED FOR REGISTRATION OF LAND. THEREF ORE, RS. 13,30,84,000/- WERE NET PAYABLE TO THE SELLER AND T HE DETAILS OF THE SAME HAVE BEEN RECORDED ON PAGE NO. 15-18 OF EXHIBI T-1 OF ANNEXURE- A, FOUND AND SEIZED FROM HIS RESIDENCE. LATER ON TH IS LAND WAS SOLD TO SHRI K.G. KOTHARI. SHRI MADAN MOHAN GUPTA FURTHER S UBMITTED THAT THIS LAND WAS PURCHASED IN THE NAME OF M/S KALYAN BUILDM ART PVT. LTD. IN WHICH HE WAS A DIRECTOR ALONG WITH HISWIFE SMT. SHA SHIKALA GUPTA. THIS LAND WAS PURCHASED DURING THE YEAR 2006-07 AND SOLD TO K G. KOTHARI, PRITHVIRAJ ROAD, C-SCHEME, JAIPUR AND SHIR VIMAL CH AND SURANA IN THE MONTH OF MARCH, 2007 AND THE DETAILS OF THE SAME HA VE BEEN RECORDED ON PAGE NOS. 27 & 28 OF EXHIBIT OF ANNEXURE-A. DURI NG THE COURSE OF STATEMENT, SHRI MADAN MOHAN GUPTA ADMITTED THAT THE AMOUNTS MENTIONED AGAINST DATES HAVE BEEN RECORDED IN CODED FORM SUCH AS RS. 1.00 CRORE HAVE BEEN WRITTEN AS 1=00 AND RS. 50 .00 LACS HAVE BEEN WRITTEN AS .50. THIS SALE TRANSACTIONS WERE FI NALIZED FOR RS. 20,83,39,232/- AND THE PAYMENTS TO THE SELLERS WERE MADE THROUGH SHRI RAMESHWAR PRASAD SHARMA RESIDENT OF BARKAT NAG AR, TONK PHATAK, JAIPUR. SHRI MADAN MOHAN GUPTA FURTHER ADMI TTED THAT HE GOT RS. 8.00 LACS AS HIS REIMBURSEMENT FROM THIS LAND T RANSACTION. 18 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. THUS IT REVEALS FROM THE ASSESSMENT ORDER THAT AFTE R THE INITIAL ASSESSMENT U/S 143(3) R.W.S. 153A THE AO GOT THE ALLEGED INCRIMINA TING MATERIAL IN THE SHAPE OF DIARY AND TRANSACTIONS RECORDED THEREIN FOUND AN D SEIZED IN THE SEARCH AND SEIZURE OPERATION IN CASE OF RAJENDRA JAIN GROUP. A CCORDINGLY, THE AO PROCEEDED TO REASSESS THE INCOME OF THE ASSESSEE U/ S 147 OF THE ACT. THE ENTIRE DECISIONS OF THE AO TO REASSESS THE INCOME O F THE ASSESSEE IS BASED ON THE SEIZED MATERIAL AND STATEMENT OF SHRI MADAN MO HAN GUPTA RECORDED U/S 132(4) OF THE ACT FOR WHICH THE SPECIFIC REMEDY IS PROVIDED U/S 153C OF THE ACT. FOR READY REFERENCE WE QUOTE SECTION 153C AS U NDER:- 153C. 79 [(1)] 80 [NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , WHERE THE ASSESSING OFFICER IS SATISFIED THAT, ( A ) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING, SEIZED OR REQUISITIONED, 81 BELONGS TO; OR ( B ) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUIS ITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A , THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON] 82 [AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A , IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PERSON 82A [ FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND ] FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A ] :] 83 [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO 84 [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF REC EIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON :] 85 [ PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES 86 MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, SPECIFY THE CLASS OR CLASS ES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRE D TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEA RS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS 19 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. MADE 86A [ AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS AS RE FERRED TO IN SUB-SECTION (1) OF SECTION 153A ] EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMEN T HAS ABATED.] 87 [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED 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 ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR ( A ) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHE R PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR ( B ) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB- SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTIC E UNDER SUB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR ( C ) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MADE, 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 . THIS SECTION BEGINS WITH NON-OBSTANTE CLAUSE AND TH EREFORE, HAS AN OVERRIDING EFFECT ON THE SECTIONS 147&148 OF THE ACT. AS PER T HE SCHEME AND OBJECT OF SECTION 153C R.W.S 153A THE AO HAS NO DISCRETION OR CHOICE TO INVOKE THE PROVISIONS OF SECTION 147/148 INSTEAD OF SECTION 15 3C R.W.S. 153A OF THE ACT. ONCE THE CASE OF REASSESSMENT IS MADE OUT BY THE AO WHICH FALLS IN THE PREVIEW OF SPECIFIC PROVISIONS OF SECTION 153C OF THE ACT, THE AO CANNOT RESORT TO INVOKE THE PROVISIONS OF SECTION 147/148 OF THE ACT TO ASS ESSEE OR REASSESS INCOME OF THE ASSESSEE. THE ACTION OF THE AO TO INITIATE THE PROCEEDINGS UNDER SECTION 147/148 OF THE ACT VITIATES THE ENTIRE REASSESSMENT PROCEEDINGS AND THE ASSESSMENT ORDER. ONCE, THE AO IS SATISFIED THAT TH E DOCUMENTS SEIZED BELONG TO THE PERSONS OTHER THAN THE SEARCHED PERSON, THE ASS ESSING OFFICER SHALL PROCEED AGAINST SUCH OTHER PERSONS AND ISSUED NOTICE U/S 15 3C AND ASSESSEE OR REASSESS INCOME OF SUCH OTHER PERSONS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE ACT. THEREFORE, IT IS MANDATORY FOR THE AO T O PROCEED U/S 153C IF HE IS SATISFIED THAT THE SEIZED MATERIAL REVEALS THE INCO ME OF SUCH OTHER PERSONS TO BE 20 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ASSESSED OR REASSESSED. THE AMRITSAR BENCH OF THIS TRIBUNAL IN CASE OF ITO VS. ARUM KUMAR KAPOOR (SUPRA) WHILE DECIDING AN IDENTIC AL ISSUE OF VALIDITY OF INITIATION OF PROCEEDINGS U/S 147/148 ON THE BASIS OF SEIZED MATERIAL HAS HELD IN PARAS 7.2 AND 8 AS UNDER:- 7.2 . THE UNDISPUTED FACTS ARE THAT A SEARCH WAS CONDUC TED UNDER S. 132 OF THE ACT IN THE CASE OF M/S. TODAY HOMES & INFRAS TRUCTURE (P.) LTD. ON 28TH MARCH, 2006, DURING THE COURSE OF WHICH CERTAI N INCRIMINATING DOCUMENTS WERE ALLEGEDLY SEIZED. IT IS ALSO A MATTE R OF RECORD THAT THE DY. CIT, CENTRAL CIRCLE-22, NEW DELHI INTIMATED THE AO OF THE ASSESSEE ABOUT SEIZURE OF CERTAIN DOCUMENTS PERTAINING TO THE ASSE SSEE DURING SEARCH AND ENCLOSED COPY OF THOSE DOCUMENTS REQUESTING HIM TO TAKE APPROPRIATE ACTION UNDER S. 153C/148 OF THE ACT. IT IS AFTER TH AT THAT DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE CIT(A) THE ASSE SSEE TOOK AN ADDITIONAL GROUND OF APPEAL TO THE EFFECT THAT THE REASSESSMEN T PROCEEDINGS INITIATED BY THE AO UNDER S. 148 ARE ILLEGAL AND VOID AB INIT IO. IN THE INSTANT CASE, THE LEARNED CIT(A) HAS CORRECTLY OBSERVED THAT THE AO SHOULD HAVE ISSUED NOTICE UNDER S. 153C OF THE ACT AND SHOULD HAVE FRA MED THE ASSESSMENT UNDER S. 153C R/W S. 153A OF THE ACT. SEC. 153C OF THE ACT READS AS UNDER : '153C. NOTWITHSTANDING ANYTHING CONTAINED IN S. 139 , S. 147, S. 148, S. 149, S. 151 AND S. 153, WHERE THE AO IS SATISFIED T HAT ANY MONEY, BULLION OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN S. 153A, THEN THE BO OKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL B E HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON A ND THAT AO SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SU CH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF S. 153A.' 8. ON A PERUSAL OF THE ABOVE PROVISIONS, IT WOULD BE CLEAR THAT THE PROVISIONS OF S. 153C OF THE ACT WERE APPLICABLE, WHICH SUPERS EDES THE APPLICABILITY OF PROVISIONS OF SS. 147 AND 148 OF THE ACT. AS WE HAV E ALREADY NOTED HEREINABOVE THAT THE DOCUMENTS WERE SEIZED DURING T HE SEARCH UNDER S. 132 OF THE ACT AND THE SAME WERE SENT TO THE ASSESSEE'S AO AT AMRITSAR BY THE OFFICER AT DELHI IN OUR VIEW, THE LEARNED CIT(A) HA S CORRECTLY OBSERVED THAT 21 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ONLY THE PROVISION IN WHICH ANY ASSESSMENT COULD BE MADE AGAINST THE ASSESSEE IN THE IT ACT WAS S. 153C R/W S. 153A OF T HE ACT. IT IS ALSO APPARENT FROM THE RECORD THAT THE OFFICER AT DELHI HAS MENTI ONED IN HIS LETTER THAT THE NECESSARY ACTION MAY BE TAKEN AS PER LAW UNDER S. 1 53C/148 OF THE ACT. HENCE, NOTICE ISSUED UNDER S. 148 OF THE ACT AND PR OCEEDINGS UNDER S. 147 OF THE ACT BY THE AO ARE ILLEGAL AND VOID AB INITIO. I N VIEW OF THE PROVISIONS OF S. 153C OF THE ACT, S. 147/148 STANDS OUSTED. IN THE I NSTANT CASE, THE PROCEDURE LAID DOWN UNDER S. 153C HAS NOT BEEN FOLLOWED BY TH E AO AND, THEREFORE, ASSESSMENT HAS BECOME INVALID. WE ALSO OBSERVE THAT THE CIT(A) WAS JUSTIFIED IN FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUP REME COURT IN THE CASE OF MANISH MAHESHWARI V. ASSTT. CIT [2007] 289 ITR 341 / 159 TAXMAN 258 WHEREIN IT HAS BEEN HELD THAT IF THE PROCEDURE LAI D DOWN IN S. 158BD IS NOT FOLLOWED, BLOCK ASSESSMENT PROCEEDINGS WOULD BE ILLEGAL. THE CIT(A) HAS CORRECTLY OBSERVED THAT THE PROVISIONS OF S. 153C A RE EXACTLY SIMILAR TO THE PROVISIONS OF S. 158BD OF THE ACT IN BLOCK ASSESSME NT PROCEEDINGS. THUS, CONSIDERING THE ENTIRE FACTS AND THE CIRCUMSTANCES OF THE PRESENT CASE, WE HOLD THAT THE CIT(A) WAS FULLY JUSTIFIED IN QUASHIN G THE REASSESSMENT ORDER. WE ALSO DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT DURING THE COURSE OF SEARCH, IT WAS FOUND AT PREMISES OF M/S. TODAY HOMES & INFRASTRUCTURE (P.) LTD. PERTAIN ING TO M/S. P.R. INFRASTRUCTURE LTD. AND NOT THE ASSESSEE. IN THIS R EGARD, WE MAY POINT OUT THAT THE CONTENTION RAISED BY THE LEARNED DEPARTMEN TAL REPRESENTATIVE IS FACTUALLY INCORRECT AND CONTRARY TO THE AVAILABLE R ECORDS OF SEIZED DOCUMENTS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER DT. 30TH DEC, 2008. IN VIEW OF THE ABOVE FACTUAL DISCUSSION, WE DO NOT FIND ANY ME RIT AND SUBSTANCE IN THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. THEREFORE, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE GROUND NOS. 1 TO 4 OF THE APPEAL. A SIMILAR VIEW WAS TAKEN BY THE VISAKHAPATNAM BENCH OF THIS TRIBUNAL IN CASE OF G. KOTESWARA RAO VS. DCIT (SUPRA) IN PARA 11 TO 17 AS UNDER:- 11. A CAREFUL STUDY OF SECTION 153A TO 153C AND ALSO T HE CIRCULAR ISSUED BY THE CBDT EXPLAINING THE PROCEDURE OF ASSESSMENT IN SEARCH CASES, IT SHOWS THAT THESE ARE SEPARATE PROVISIONS INDEPENDENT OF O THER PROVISIONS RELATING TO REASSESSMENT, BECAUSE OF THE NON ABSTANTE CLAUSE BE GINS 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 TH ESE SECTIONS ARE NOT MADE 22 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. APPLICABLE TO THE ASSESSMENTS COVERED BY THE PROVIS IONS 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 GOVER NS THE SEARCH ASSESSMENTS WHICH IS POPULARLY KNOWN AS BLOCK ASSES SMENT. THE EARLIER PROVISIONS PROVIDES FOR SINGLE ASSESSMENT TO BE MAD E IN RESPECT OF UNDISCLOSED INCOME OF BLOCK PERIOD CONSISTING OF 10 ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH TOOK PLACE AND THE BROKEN PERIOD OF UP TO THE DATE OF SEARCH WAS A LSO INCLUDED IN THE BLOCK PERIOD. AFTER THE INTRODUCTION OF NEW SECTIONS, I.E . SECTION 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT WAS DONE WAY WITH T HE NEW SCHEME OF ASSESSMENT OF SEARCH CASES WHERE THE ASSESSING OFFI CER IS TO ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THE ASSESSMENT YEARS FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDIN G THE ASSESSMENT 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 TO OK PLACE. FROM THESE FACTS, ONE THING IS CLEARLY EMERGED THAT BOTH I.E. EARLIER CONCEPT OF BLOCK ASSESSMENT AND THE NEW SCHEME OF ASSESSMENT IS SEPARATE PROVIS IONS CREATED FOR ASSESSMENT OF SEARCH CASES WHERE THE SEARCH IS COND UCTED U/S 132 OR REQUISITION WAS MADE U/S 132A OF THE ACT. 12. UNDER THE PROVISIONS OF SECTION 147, THE ASSESSING OFFICER IS HAVING POWER TO RE-OPEN THE ASSESSMENT, IF HE IS OF THE OP INION THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. BEFORE DO ING SO, THE ASSESSING OFFICER SHOULD SATISFY HIMSELF THAT, THERE IS MATER IAL WHICH SUGGESTS THAT THERE IS AN ESCAPEMENT OF INCOME. THE AO CAN EXERCISE THE SE POWERS WITH A REASONABLE BELIEF COUPLED WITH SOME MATERIAL WHICH SUGGEST THE ESCAPEMENT OF INCOME. ONCE THE CONDITIONS PRECEDENT FOR ASSUMP TION OF JURISDICTION TO COMMENCE THE REASSESSMENT PROCEEDINGS, HE HAS TO CR OSS THE HURDLES ATTACHED WITH REASSESSMENT BY WAY REASONS FOR REOPE NING OF ASSESSMENT, TIME LIMIT FOR ISSUE OF NOTICE AND PROVISION FOR OB TAINING SANCTION OF HIGHER AUTHORITY IN CERTAIN CIRCUMSTANCES. UNDER THE PROVI SIONS OF SECTION 153A TO 153C THESE HURDLES ARE CLEARED BY USING THE NON ABS TANTE CLAUSE IN THE SAID SECTION. IN OTHER WORDS, UNDER THE NEW PROVISIONS O F SECTION 153A, THE AO IS NOT REQUIRED TO SATISFY THESE CONDITIONS BEFORE ISS UE OF NOTICE. THE ONLY REQUIREMENT IS THAT THERE SHOULD BE A SEARCH ACTION U/S 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY OTHER ASSET ARE REQ UISITIONED UNDER SECTION 132A. THEREFORE, WE ARE OF THE OPINION THAT THOUGH, THE ASSESSING OFFICER FROM BOTH SECTIONS EMPOWERED TO TAX THE INCOME ESCA PED FROM TAX, BOTH ARE WORKS IN A DIFFERENT SITUATIONS, I.E. SECTION 147 C OMES IN TO OPERATION WHERE 23 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. THERE IS AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX AND SECTION 153A COMES IN TO OPERATION WHERE THERE IS SEARCH U/S 132. 13. UNDER THE PROVISIONS OF SECTION 153A, THE ASSESSIN G OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH THE RETURNS OF INCOME FOR EACH 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 INCOME. TH EREFORE, THE NEW PROVISIONS HAS GIVEN WIDE POWERS TO THE ASSESSING O FFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS F ALLING WITHIN THE PERIOD OF THOSE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING TH E ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. UNDER THE NEW PROVISIONS OF SECTION 153A, THE STATUTE IS PROVIDES WIDE POWERS TO THE ASSESSING OF FICER IN RESPECT OF ASSESSMENTS ALREADY COMPLETED U/S 143(1) OR 143(3). IF SUCH ORDERS IS ALREADY IN EXISTENCE PRIOR TO THE INITIATION OF SEA RCH, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, FOUND DURIN G THE COURSE OF SEARCH. FOR THIS PURPOSE, THE RESTRICTIONS IMPOSED ON THE ASSES SING OFFICER BY WAY OF SECTIONS 148 TO 153 TO REOPEN THE ASSESSMENT U/S 14 7 HAS BEEN REMOVED BY THE NON ABSTANTE CLAUSE USED IN SECTION 153A. 14. IN THE PRESENT CASE ON HAND, ADMITTEDLY, THE ASSES SING OFFICER HAS REOPENED THE ASSESSMENT BASED ON A SEARCH CONDUCTED IN A THIRD PARTY CASE. THE AO FORMED THE OPINION BASED ON THE STATEMENT RE CORDED FROM THE ASSESSEE, CONSEQUENT TO POST SEARCH PROCEEDINGS TAK EN UP BY THE DDIT(INV), WHICH SHOWS UNDISCLOSED INCOME WHICH IS THE VERY BA SIS OF REOPENING THE ASSESSMENT. THE SEARCH IS CONDUCTED ON 22-8-2008 WH ICH COMES UNDER THE ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER REOP ENED THE ASSESSMENT YEAR 2008-09, WHICH IS FALLING WITHIN THOSE SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CO NDUCTED. THE ASSESSEE CASE FALLS WITHIN THE PROVISIONS OF SECTION 153C, A S THE INCRIMINATING DOCUMENT SEIZED IN THE CASE OF SEARCH IN ANOTHER CASE. THE A SSESSING OFFICER, ON SATISFYING THE ABOVE CONDITION IS UNDER OBLIGATION TO ISSUE NOTICE TO THE PERSON REQUIRING HIM TO FURNISH THE RETURN FOR THE SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS TO OK PLACE. THEREAFTER, THE ASSESSING OFFICER HAS TO ASSESS OR REASSESS THE TOT AL 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 ISSUE N OTICE AND PROCEED THEREAFTER TO ASSESS OR REASSESS THE TOTAL INCOME. IN THE INSTANT CASE, THE 24 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. ASSESSING OFFICER ISSUED NOTICE U/S 148 TO REOPEN T HE ASSESSMENT. THEREFORE, IN VIEW OF THE NON-ABSTANTE CLAUSE BEGIN WITH SECTI ON 153A, THE ASSESSING OFFICER HAS NO JURISDICTION TO ISSUE NOTICE U/S 148 REOPEN THE ASSESSMENT OF THOSE SIX ASSESSMENT YEAR WHICH FALLS WITHIN THE EX CLUSIVE JURISDICTION OF SECTION 153A. THOUGH, BOTH PROVISIONS OF THE ACT EM POWERS THE ASSESSING OFFICER TO ASSESS OR REASSESS THE INCOME ESCAPED FR OM ASSESSMENT, BOTH SECTIONS ARE DEALING WITH DIFFERENT SITUATIONS. SEC TION 147 COMES INTO OPERATION WHEN, THE ASSESSING OFFICER BELIEVES THAT THERE IS AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX, EITHER FROM THE RETURN AL READY FILED OR THROUGH SOME EXTERNAL MATERIAL EVIDENCE CAME TO HIS KNOWLED GE, WHICH SHOWS THE ESCAPEMENT OF INCOME. WHEREAS, SECTION 153A COMES I NTO OPERATION WHEN THERE IS SEARCH U/S 132 OR BOOKS OF ACCOUNTS, OR AN Y OTHER ASSET OR OTHER DOCUMENTS REQUISITIONED U/S 132A. IF ASSESSING OFFI CER JUSTIFIED IN PROCEEDING WITH SECTION 147 TO REOPEN THE ASSESSMENT, THEN THE RE WOULD 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 USING THE WORD SH ALL 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 REASS ESS THE TOTAL INCOME, WHERE SEARCH IS CONDUCTED U/S 132 OR REQUISITION IS MADE U/S 132A. THEREFORE, IN OUR OPINION, THE AO IS NOT JUSTIFIED IN REOPENING THE ASSESSMENT U/S 147 AND HIS ORDER IS ILLEGAL AND ARBITRARY. 15. A SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE T HE SPECIAL BENCH OF THIS TRIBUNAL AND THE SPECIAL BENCH HAD AN OCCASION TO D EAL WITH THE INTERPRETATION OF SECTION 153A OF THE ACT IN THE CASE OF ALL CARGO GL OBAL LOGISTICS LTD. V. DY. CIT [2012] 137 ITD 287/23 TAXMANN.COM 103 (MUM) (SB) . THE SPECIAL BENCH AFTER CONSIDERING THE PROVISIONS OF SECTION 153A AN D CBDT CIRCULAR HAS HELD AS UNDER: '52. THE PROVISION COMES INTO OPERATION IF A SEARCH OR REQUISITION IS INITIATED AFTER 31.5.2003. ON SATISFACTION OF THIS CONDITION, THE AO IS UNDER OBLIGATION TO ISSUE NOTICE TO THE PERSON REQUIRING HIM TO FURN ISH THE RETURN OF INCOME OF SIX YEARS IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE WORD USED IS 'SHALL' AND, THUS, THERE IS NO OPTION BUT TO ISSUE SUCH A N OTICE. THEREAFTER HE HAS TO ASSESS OR REASSESS TOTAL INCOME OF THESE SIX YEARS. IN THIS RESPECT ALSO, THE WORD USED IS 'SHALL' AND, THEREFORE, THE AO HAS NO OPTION BUT TO ASSES OR REASSESS THE TOTAL INCOME OF THESE SIX YEARS. THE P ENDING PROCEEDINGS SHALL ABATE. THIS MEANS THAT OUT OF SIX YEARS, IF ANY ASS ESSMENT OR REASSESSMENT IS PENDING ON THE DATE OF INITIATION OF THE SEARCH, IT SHALL ABATE. IN OTHER WORDS PENDING PROCEEDINGS WILL NOT BE PROCEEDED WITH THER EAFTER. THE ASSESSMENT 25 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. HAS NOW TO BE MADE U/S 153A (1)(B) AND THE FIRST PR OVISO. IT ALSO MEANS THAT ONLY ONE ASSESSMENT WILL BE MADE UNDER THE AFORESAI D PROVISIONS AS THE TWO PROCEEDINGS I.E. ASSESSMENT OR REASSESSMENT PROCEED INGS AND PROCEEDINGS UNDER THIS PROVISION MERGED INTO ONE. IF ASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR OTHER LEGAL PROCEEDING S, THEN THE ABATED ASSESSMENT OR REASSESSMENT SHALL REVIVE. THIS MEANS THAT THE ASSESSMENT OR REASSESSMENT, WHICH HAD 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) AND THE FIRST PROVISO ? WE ARE OF THE VIEW THAT FOR ANSWERING THIS QUESTION, GUIDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1). IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF O RIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO ACCOUNT WHILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL INCOME UNDER THE AFORESAID PR OVISION. SIMILAR POSITION WILL OBTAIN IN A CASE WHERE UNDISCLOSED INCOME OR U NDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF SEARCH. IN OTHER WOR DS, HARMONIOUS INTERPRETATION WILL 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 I NTO ONE AND ONLY ONE ASSESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MADE S EPARATELY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIA L EXISTING OR BROUGHT ON THE RECORD OF THE A.O. (B) IN RESPECT OF NON-ABATED ASSESSMENTS, THE ASSES SMENT WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS NO T PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF S EARCH, AND UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVERED IN THE CO URSE OF SEARCH.' 58. THUS, QUESTION NO. 1 BEFORE US IS ANSWERED A) A S UNDER (A) IN ASSESSMENTS THAT ARE ABATED, THE A.O. RETAIN S THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM UNDER S. 1 53A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY ;' 16. IN YET ANOTHER CASE, THE ITAT MUMBAI BENCH, IN THE CASE OF STATE BANK OF INDIA V. DY CIT [2013] 22 ITR (TRIB.) 609, HAD CONS IDERED THE ISSUE. THE MUMBAI BENCH AFTER CONSIDERING THE RELEVANT SECTION S AND CBDT CIRCULAR HAS HELD AS UNDER: 26 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. '18. A PERUSAL OF SECTION 153A SHOWS THAT IT STARTS WITH A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHICH IS CO VERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEARCHES M ADE AFTER 31.5.2003. THESE SECTIONS, THE APPLICABILITY OF WHICH HAS BEEN EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS. PR IOR TO, THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS CHAPTER XIV- B OF T HE ACT WHICH TOOK CARE OF THE ASSESSMENT TO BE MADE IN CASES OF SEARCH AND SE IZURE. SUCH AN ASSESSMENT WAS POPULARLY KNOWN AS BLOCK ASSESSMENT BECAUSE THE CHAPTER PROVIDED FOR A SINGLE ASSESSMENT TO BE MADE IN RESP ECT OF A PERIOD OF A BLOCK OF TEN ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEA R IN WHICH THE SEARCH WAS MADE. IN ADDITION TO THESE TEN ASSESSMENT YEARS, TH E BROKEN PERIOD UP TO THE DATE ON WHICH THE SEARCH WAS CONDUCTED WAS ALSO INC LUDED IN WHAT WAS KNOWN AS BLOCK PERIOD. THOUGH A SINGLE ASSESSMENT O RDER WAS TO BE PASSED, THE UNDISCLOSED INCOME WAS TO BE ASSESSED IN THE DI FFERENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HAD TO BE MADE IN A SINGLE ASSESSMENT ORDER. THE BLOCK ASSESSMENT SO MADE WAS INDEPENDENT OF AND IN ADDITION TO THE NORMAL ASSESSMENT PROCEEDINGS AS CLARIFIED BY THE E XPLANATION BELOW SECTION 158BA(2). AFTER THE INTRODUCTION OF THE GROUP OF SE CTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT WAS GIVEN A GO-BY. UNDER THE NEW SECTION 153A, 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 ASSESSING OFFICER IS OBLI GED TO ISSUE NOTICES CALLING UPON THE SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED OR REQUISITION WAS M ADE. THE OTHER DIFFERENCE IS THAT THERE IS NO BROKEN PERIOD FROM T HE FIRST DAY OF APRIL OF THE FINANCIAL YEAR IN WHICH THE SEARCH TOOK PLACE OR TH E REQUISITION WAS MADE AND ENDING WITH THE DATE OF SEARCH/REQUISITION. UNDER S ECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE AO IS REQUIRED TO EXERCISE THE NORMAL ASSESSMENT POWERS IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. 19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HAV E ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS O R REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICA NT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSME NT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCE EDINGS WERE PRESERVED, 27 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. 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 QUESTION IN S EPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSES SMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT T O BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A ) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVI NG OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEA RTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSE SSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSE SSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF SECTION 153A OPENS. THE TIME-LIMIT W ITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SEC TION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTI ON 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCL UDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMP LETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PUL LED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS C OVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, I F NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN T HE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF TH E SIX ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, TH E SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDI NGS 'SHALL ABATE'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THER E IS NO ROOM FOR MULTIPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE 'SIX ASS ESSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICE R HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE TOTAL 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 OR DER TO ENSURE THIS STATE OF 28 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSME NT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE S EARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB SECTION (1) OF SECTION 153A T HAT ANY PROCEEDINGS FOR 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 ABATE, THE DECKS ARE CLEARED, FOR THE A SSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETER MINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DE CLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UNDIS CLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POS ITION THUS EMERGING IS THAT WHERE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE PE NDING COMPLETION WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE , THEY WILL ABATE MAKING 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 COMPLETED AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE S TOTAL INCOME AND SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINC E NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OF FICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY 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 15 3A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TO TAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT E SCAPED ASSESSMENT 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 PROCEEDINGS FOR ASSESSMEN T OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESS MENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED OR THE REQUISI TION WAS MADE. 20. APPLYING THE RATIO OF THE ABOVE DECISIONS TO TH E FACTS OF THE PRESENT CASE, WE FIND THAT THERE IS NO DISPUTE THAT THE ORIGINAL ASSESSMENT FOR THE A.Y. 2001-02 WAS COMPLETED U/S 143(3) ON 13-2-2004 DETER MINING THE TOTAL INCOME AT RS. 26354942360/-. THEREAFTER, A SEARCH A ND SEIZURE ACTION WAS INITIATED IN ASSESSEE'S CASE BY THE DEPARTMENT ON 2 -7-2005 ON WHICH DATE THE ASSESSMENT FOR THE A.Y. 2001-02 WAS NOT PENDING. TH EREFORE, IN VIEW OF THE NON- OBSTINATE CLAUSE WITH WHICH SUB SECTION (1) OF SECTION 153A OPENS, THE A.O. HAS NO JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT IN RESPECT OF THOSE 29 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. SIX ASSESSMENT YEARS WHICH FALLS WITHIN THE EXCLUSI VE JURISDICTION OF SECTION 153A OF THE ACT AND ACCORDINGLY THE A.O. WAS NOT JU STIFIED IN ISSUING NOTICE U/S 148 ON 28-8-2006 AND IN COMPLETING THE IMPUGNED ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT ON 31-10-2006. THE A.O. INSTE AD OF COMPLYING WITH THE REQUIREMENT OF SECTION 153A PROCEEDED WITH THE PROV ISIONS OF SECTION 147/148 WHICH ARE NOT APPLICABLE IN THE ASSESSMENT U/S 153 A OF THE ACT, THEREFORE, THE IMPUGNED ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT IS A NULLITY 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 CAS E AND ALSO APPLYING THE RATIOS OF THE ABOVE MENTIONED DECISIONS, 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 ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE. THE PERIOD UNDER CONSIDERATION FALLS WITHIN T HE EXCLUSIVE DOMAIN OF SECTION 153A. IN THE INSTANT CASE, SINCE THE ASSESS MENT IS MADE CONSEQUENT TO SEARCH IN ANOTHER CASE, THE ASSESSING OFFICER IS BO UND TO ISSUE NOTICE U/S 153C AND THEREAFTER PROCEED TO ASSESS OR REASSESS TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER, INSTEAD OF COMPLYIN G WITH THE PROVISIONS OF SECTION 153C, PROCEEDED WITH THE REASSESSMENT UNDER SECTION 147/148 WHICH IS NOT APPLICABLE TO SEARCH CASES. THEREFORE, THE IMPU GNED ASSESSMENT ORDER PASSED U/S 143(3), R.W.S. 147 OF THE INCOME TAX ACT , 1961 IS ILLEGAL, ARBITRARY AND WITHOUT ANY JURISDICTION. HENCE, THE ASSESSMENT ORDER DATED 31-12-2010 PASSED U/S 143(3) R.W.S. 147 IS QUASHED. THUS, IT IS CLEAR THAT THE TRIBUNAL HAS TAKEN A CON SISTENT VIEW ON THIS ISSUE AND FURTHER THE DELHI BENCHES OF THIS TRIBUNAL IN CASE OF RAJAT SHUBRA CHATTERJI VS. ACIT (SUPRA) HAS HELD IN PARA 7 AS UNDER:- 7. ON HAVING GONE THROUGH THE DECISIONS CITED ABOVE ESPECIALLY THE DECISION OF AMRITSAR BENCH IN THE CASE OF ITO VS. A RUN KUMAR KAPOOR (SUPRA), WE FIND THAT IN THAT CASE AS IN THE PRESEN T CASE BEFORE US, REASSESSMENT WAS INITIATED ON THE BASIS OF INCRIMIN ATING MATERIAL FOUND IN SEARCH OF THIRD PARTY AND THE VALIDITY OF THE SA ME WAS CHALLENGED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) AND TH E LEARNED CIT(APPEALS) VITIATED THE PROCEEDINGS. THE SAME WAS QUESTIONED BY THE REVENUE BEFORE THE ITAT AND THE ITAT AFTER DISC USSING THE CASES 30 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. OF THE PARTIES AND THE RELEVANT PROVISIONS IN DETAI LS HAS COME TO THE CONCLUSION THAT IN THE ABOVE SITUATION, PROVISIONS OF SEC. 153C WERE APPLICABLE WHICH EXCLUDES THE APPLICATION OF SECTIO NS 147 AND 148 OF THE ACT. THE ITAT HELD THE NOTICE ISSUED UNDER SEC. 148 AND PROCEEDINGS UNDER SEC. 147 AS ILLEGAL AND VOID AB 8 INITIO. IT WAS HELD THAT ASSESSING OFFICER HAVING NOT FOLLOWED PROCEDUR E UNDER SEC. 153C, REASSESSMENT ORDER WAS RIGHTLY QUASHED BY THE LEARN ED CIT(APPEALS). IN THE PRESENT CASE BEFORE US, IT IS AN ADMITTED FA CT, AS ALSO EVIDENT FROM THE REASONS RECORDED AND THE ASSESSMENT ORDER THAT THE INITIATION OF REOPENING PROCEEDINGS WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTORATE OF INCOME-TAX (INV.) ON THE BASIS OF SEARCH & SEIZURE OPERATION CONDUCTE D AT THE PREMISES OF ROCK LAND GROUP OF CASES AND THE DOCUMENTS RELAT ED TO THE ASSESSEE FOUND DURING THE COURSE OF SEARCH WERE MAD E AVAILABLE TO THE ASSESSING OFFICER OF THE PRESENT ASSESSEE. WE THUS RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE ITAT IN THE CASE OF ACIT VS. ARUN KAPUR 140 TTJ 249 (AMRITSAR) HOLD T HAT PROVISIONS OF SEC. 153C OF THE ACT WERE APPLICABLE IN THE PRESENT CASE FOR FRAMING THE ASSESSMENT, IF ANY, WHICH EXCLUDES THE APPLICAT ION OF SEC. 147 OF THE ACT, HENCE, NOTICE ISSUED UNDER SEC. 148 OF THE ACT AND ASSESSMENT FRAMED IN FURTHERANCE THERETO UNDER SEC. 147 READ W ITH SECTION 143(3) OF THE ACT ARE VOID AB INITIO. THE REASSESSMENT IN QUESTION IS ACCORDINGLY QUASHED. THE GROUND NO.1 IS ACCORDINGLY ALLOWED. THEREFORE, IN CONJOINT READING OF PROVISIONS OF SEC TION 153A, 153C AND 147/148 OF THE ACT AS WELL AS A CONSISTENT VIEW TAK EN BY THIS TRIBUNAL IN A SERIES OF DECISION CITED (SUPRA) WE HOLD THAT THE A SSESSMENT OR REASSESSMENT OF INCOME OF THE PERSON OTHER THAN SEARCH PERSONS B ASED ON SEIZED MATERIAL CAN BE ONLY BE MADE U/S 153C R.W.S. 153A AND THE PR OVISIONS OF SECTION 147/148 OF THE ACT ARE NOT APPLICABLE IN SUCH CASES . NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE. ACCORDINGLY, WE HOLD TH AT INITIATION OF PROCEEDINGS U/S 147/148 BY THE AO TO REASSESS THE INCOME IS ILL EGAL BEING WITHOUT JURISDICTION AND CONSEQUENTLY THE REASSESSMENT ORDE R PASSED U/S 147 R.W.S. 143(3) IS ALSO ILLEGAL AND VOID ABINITIO AND IS LI ABLE TO BE QUASHED. FOLLOWING THE EARLIER DECISION OF THIS TRIBUNAL, WE HOLD THAT THE REOPENING UNDER SECTION 147/148 OF THE ACT IS NOT VALID WHEN THE PR OPER COURSE OF ACTION WAS ONLY TO INITIATE THE PROCEEDINGS UNDER SECTION 153C/153A OF THE ACT. SINCE WE HAVE 31 ITA NOS. 152, 153/JP/18 & 517, 518/JP/17. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. QUASHED THE INITIATION OF THE REOPENING OF THE ASSE SSMENT AS WELL AS CONSEQUENT REASSESSMENT ORDER FOR BOTH THE YEARS, THEREFORE, T HE GROUND RAISED BY THE REVENUE ON THE MERITS OF THE ADDITION ON PROTECTIVE BASIS B ECOMES INFRUCTUOUS. 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED AND APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/06/2018 . SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/06/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-M/S. SHRI KALYAN BUILDMART PVT. LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ACIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 152, 153/JP/2018, 517 & 518 /JP /2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR