The ITO, Ward-6(4), Surat V. Shri Vijay M.Vimawala, Surat

ITSSA 237/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1867 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-01-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 23-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Assessee Lawyers: RASESH SHAH
• Keywords: Reopening of assessment; Loose papers; Validity of assessment; Assessment record; Documents seized
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHM EDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI S. S. GOD ARA, J.M.) ( , !' !#!#$% , &' ) IT(SS)A NO: 237/AHD/2012 (ASSESSMENT YEAR: 1999-2000) INCOME-TAX OFFICER, WARD-6(4), ROOM NO.613, AAYAKAR BHAVAN, MAJURA GATE, SURAT VS. SHRI VIJAY M. VIMAWALA 88-SOMESHWAR ENCLAVE, UDHANA-MAGDALLA ROAD, DIST: SURAT 395017 PAN: ADPTV4980A (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. VIBHA BHALLA, CIT D.R. RESPONDENT BY : SHRI RASESH SHAH, A.R. DATE OF HEARING : 16-03-201 6 DATE OF PRONOUNCEMENT : 06 -04-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-IV, SURAT, DATED 20.01.2012 FOR A.Y. 1999-2000. 2. FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER: 3. A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED O UT AT THE RESIDENCE OF SHRI SUBODH SANGHVI ON 22.12.2004 WHEREIN TWO AGREEMENTS RELATING TO LAND IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 2 TRANSACTIONS PERTAINING TO ASSESSEE WAS FOUND AND S EIZED AND IN VIEW OF WHICH NOTICE U/S 153C WAS ISSUED TO ASSESSEE ON 8.11.2006 AND SERVED ON ASSESSEE AND IN RESPONSE TO WHICH ASSESSEE FILED RETURN OF INCOME O N 9.10.2007 DECLARING TOTAL INCOME OF RS.33,21,267/-. THEREAFTER ASSESSMENT W AS FRAMED U/S 143(3) R.W.S. 153C VIDE ORDER DATED 30.11.2007 AND THE TOTAL INCO ME WAS DETERMINED AT RS. 1,34,78,290/-. AGGRIEVED BY THE ORDER OF AO, ASSES SEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER DTD. 14.3.2008 GRANTED PARTIA L RELIEF TO THE ASSESSEE. THEREAFTER, AGAINST THE ORDER OF CIT(A), REVENUE AN D ASSESSEE PREFERRED APPEAL BEFORE TRIBUNAL. BEFORE TRIBUNAL, ASSESSEE ALSO RA ISED A GROUND WITH RESPECT TO VALIDITY OF ASSESSMENT AND CONTENDED THAT AO COULD ONLY REOPEN THE ASSESSMENT OF A.Y. 2001-02 AND NOT OF PRIOR YEARS AND THEREFORE T HE ASSESSMENT FOR A.Y. 1999- 2000 WAS INVALID IN VIEW OF THE PROVISO TO S. 153C OF THE ACT. TRIBUNAL VIDE CONSOLIDATED ORDER DATED 5.6.2009 (IN ITA NO. 141/A HD/2009 & ORS.) AFTER CONSIDERING THE SUBMISSIONS HELD THAT THE ASSESSMEN T FOR A.Y. 1999-2000 WAS BARRED BY LIMITATION, BUT SINCE THE ISSUE WAS RAISE D BEFORE TRIBUNAL FOR THE FIRST TIME, IT REMITTED THE ISSUE TO THE FILE OF CIT(A) W ITH A DIRECTION TO VERIFY THE DATE WHEN THE RELEVANT DOCUMENTS WERE HANDED OVER BY THE A.O. OF THE PERSON SEARCHED TO THE A.O. OF THE PRESENT ASSESSEE. FOR READY REF ERENCE THE OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER: 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIALS AVAILABLE ON RECORD. THE FACTS AS AVAILABLE ON RECORD REMAIN TH AT SEARCH IN THE CASE OF SHRI SUBODH SANGHVI WAS CARRIED OUT ON 20-12-2004. THE STATEME NT OF THE ASSESSEE U/S132 OF THE ACT WAS RECORDED ON 12-1-2005 AND INTIMATION ABOUT THE RECOVERY OF THE DOCUMENTS PERTAINING TO THE ASSESSEE WERE SENT TO THE AO OF T HE PRESENT ASSESSEE ON 3-11-2006. IF IT IS PRESUMED THAT THERE IS NO OTHER CORRESPONDENCE B ETWEEN THE AO OF THE PERSON SEARCHED AND THE AO OF THE PRESENT ASSESSEE THEN HA NDING OVER OF DOCUMENTS TO THE AO OF THE PRESENT ASSESSEE COULD HAVE TAKEN PLACE ON OR A FTER 3-11-2006. IN THE BACKDROP OF ABOVE FACTS LET US EXAMINE THE PROVISIONS OF SECTIO N 153C AND PROVISO THEREOF WHICH READS AS UNDER: 153C. ASSESSMENT OF INCOME OF ANY OTHER PERSON.( 1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION-139, SECTION 147, SEC TION 148, SECTION 149, SECTION IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 3 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SU CH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN A CCORDANCE WITH THE PROVISIONS OF SECTION 153A. PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE RE FERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUIS ITION UNDER SECTION 132A IN THE SECOND PROVISO TO @SUB-SECTION (1) OF SECTION 1 53A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACC OUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON.' 14. THE MAIN THRUST OF SECTION 153C OF THE ACT IS T O EMPOWER THE AO OF THE. PERSON SEARCHED TO HAND OVER THE MONEY, GOLD, JEWELLERY OR OTHER RELEVANT ARTICLES/THINGS OR BOOKS OF ACCOUNT OR DOCUMENTS BELONGING TO THE OTHE R PERSON TO THE AO OF THAT OTHER PERSON AND THE AO OF THAT OTHER PERSON IS EMPOWERED TO PROCEED AGAINST SUCH OTHER PERSON TO ASSESS UNDISCLOSED INCOME RESULTING FROM SUCH MONEY, BULLION, JEWELLERY AND VALUABLE ARTICLES OR THINGS, (BOOKS OF ACCOUNT OR O THER DOCUMENTS. 15. THE PROVISO INTRODUCED BY FINANCE ACT, 2005 W.E .F. 1ST JUNE, 2003 MAKES A CHANGE IN THE DATE FOR RECKONING THE INITIATION OF ASSESSMENT PROCEEDINGS OF EARLIER YEARS IN THE CASE OF OTHER PERSON. IN THE CASE OF PERSON SEARCHED PROVISIONS OF S. 153A OF THE ACT ARE APPLICABLE. PROVISIONS OF SUB-S. (1)(B) EMP OWERS THE AO TO ASSESS OR REASSESS TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PR ECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUC TED OR REQUISITION IS MADE. ACCORDINGLY, THE AO CAN ISSUE NOTICE UNDER S. 153 A OF THE ACT FOR SIX PRECEDING ASSESSMENT YEARS FOLLOWING PRIOR TO THE PREVIOUS YE AR IN WHICH SEARCH IS CONDUCTED. IN THE PRESENT CASE SEARCH IN THE-CASE OF SHRI SUBODH SANGHVI WAS CONDUCTED ON 20TH DEC, 2004, THEN IN HIS CASE, THE AO IS EMPOWERED TO INIT IATE THE PROCEEDINGS FOR ASSESSMENT /REASSESSMENT FOR THE ASST. YRS. 2004-05, 2003-04, 2002-03, 2001-02, 2000-01 AND 1999- 2000. IT IS BECAUSE THE ASSESSMENT YEAR RELEVANT TO PREVIOUS YEAR IN WHICH SEARCH TOOK PLACE IS ASST. YR. 2005-06 (PREVIOUS YEAR 200405). BUT WHEN WE APPLY PROVISIONS OF PROVISO TO S, 153C OF THE ACT THEN DATE OF SEARCH I S SUBSTITUTED BY DATE OF HANDING OVER OF THE DOCUMENTS BY THE AO OF THE PERSON SEARCHED TO T HE AO OF THE OTHER PERSON (PRESENT ASSESSEE). THIS DATE IS 3RD NOV., 2006 WHICH FALLS IN THE PREVIOUS YEAR 2006-07 AND RELEVANT ASSESSMENT YEAR IS 2007-08. THE AO NOW CAN REOPEN THE ASSESSMENT FOR SIX ASSESSMENT YEARS PRECEEDING THIS ASSESSMENT YEAR. T HEY ARE ASST. YRS. 2006-07, 2005-06, 2004-05, 2003-04, 2002-03 AND 2001-02. THUS, ASSESS MENT FOR ASST. YR. 1999-2000 IS BARRED BY LIMITATION SO FAR AS THE PRESENT ASSESSEE IS CONCERNED. IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 4 16. IN ANY CASE, THIS ISSUE IS RAISED FOR THE FIRST TIME BEFORE US NOT BEEN EXAMINED BY THE LEARNED CIT(A). WE RESTORE THE MATTER TO HIS FI LE FOR CONSIDERING THE DATE WHEN THE RELEVANT DOCUMENTS WERE HANDED OVER BY THE AO OF TH E PERSON SEARCHED TO THE AO OF THE PRESENT ASSESSEE. 3.1 PURSUANT TO THE DIRECTIONS OF TRIBUNAL, CIT(A) VIDE ORDER DATED 20.01.2012 (IN APPEAL NO CAS-IV/78/2010-11) HELD AS UNDER: 3. THE APPEAL WAS DECIDED BY THE CIT(A)II, AHMEDA BAD VIDE HIS ORDER DATED 14.03.2008 WHEREBY THE APPEAL OF THE ASSESSEE WAS P ARTLY ALLOWED. THE MATTER TRAVELLED TO THE HONBLE ITAT. THE HONOURABLE ITAT VIDE ITS ORDER DATED 05/06/2009 RESTORED THE MATTER TO THE FILE OF CIT(A) FOR DECIDING THE ISSUE FIRSTLY ON THE BASIS OF LEGALITY & THEN ON MERITS. THE FACTS OF THE CASE ARE THAT SEARCH ACTIO N U/S 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENCE OF SHRI SUBODH M. SANGHVI ON 22/12/20 04. DURING THE COURSE OF SEARCH, TWO AGREEMENTS RELATING TO LAND TRANSACTIONS PERTAI NING TO ASSESSEE WERE FOUND AND SEIZED FROM THE RESIDENCE OF SHRI SUBODH M. SANGHVI & IN VIEW OF THESE FACTS, NOTICE U/S 153C WAS ISSUED ON ASSESSEE. THEREAFTER, ASSESSMENT FOR A.Y 1999-2000 IN ASSESSEE'S CASE WAS COMPLETED U/S 143(3) R.W.S. 153C OF THE AC T ON 30/11/2007 DETERMINING TOTAL INCOME OF ASSESSEE AT RS.1,34,78,290/-. AGAINST THE ABOVE ASSESSMENT ORDER, ASSESSEE FILED AN APPEAL BEFORE CIT(A)-II, AHMEDABAD WHICH W AS PARTLY ALLOWED VIDE ORDER DATED 14/03/2008. AGAINST THE SAID ORDER, BOTH DEPARTMENT AS WELL AS ASSESSEE FILED AN APPEAL BEFORE HONOURABLE ITAT. IN APPELLATE PROCEEDINGS BE FORE HONOURABLE ITAT, ASSESSEE TOOK THE PLEA THAT ASSESSMENT FOR A.Y 1999-2000 CAN NOT BE REOPENED IN ASSESSEE'S CASE SINCE, IN ASSESSEE'S CASE THE DATE WHICH IS REQUIRE D TO BE TAKEN INTO CONSIDERATION FOR REOPENING THE ASSESSMENT IS THE DATE OF HANDING OVE R OF DOCUMENTS BY THE A.O OF PERSON SEARCHED TO THE AO OF OTHER PERSON (I.E. ASSESSEE) IN VIEW OF PROVISO TO SECTION 153C. ASSESSEE CONTENDED THAT DOCUMENTS HAVE BEEN HANDED OVER BY AO OF THE PERSON SEARCHED TO THE AO OF ASSESSEE ONLY ON 03/11/2006 & ACCORDIN GLY, A.O OF ASSESSEE IS EMPOWERED TO REOPEN ASSESSMENT FROM A.Y 2001-02 ONLY & NOT OF PRIOR ASSESSMENT YEARS. THE ASSESSEE ALSO FILED LETTER OF A.O INFORMING HIM ABO UT THE INTIMATION RECEIVED FROM A.O OF SHRI SUBODH M. SANGHVI & BOTH THE LETTERS I.E. LETT ER OF A.O OF ASSESSEE & INTIMATION RECEIVED FROM A.O. OF SHRI SUBODH M. SANGHVI HAS BE EN REPRODUCED BY HONOURABLE ITAT AT PAGE NO. 8 & 9 OF ITS ORDER. AFTER CONSIDERING T HE ARGUMENTS OF ASSESSEE & PROVISIONS OF SECTION 153C(1) READ TOGETHER WITH THE PROVISO, HONOURABLE ITAT AGREED WITH THE CONTENTION OF ASSESSEE THAT A.O IN THE INSTANT CASE CAN REOPEN ASSESSMENTS ONLY FROM A.Y 2001-02 & ASSESSMENT FOR A.Y 1999-2000 IS BARRED BY LIMITATION SO FAR AS PRESENT ASSESSEE IS CONCERNED. HOWEVER, AS THIS ISSUE WAS R AISED FOR THE FIRST TIME BEFORE HONOURABLE ITAT, THE MATTER HAS BEEN RESTORED TO TH E FILE OF CIT(A) FOR CONSIDERING THE DATE AS TO WHEN RELEVANT DOCUMENTS WERE HANDED OVER BY THE A.O OF PERSON SEARCHED TO THE A.O OF PRESENT ASSESSEE. IN ADDITION, HONOURABL E ITAT HAS ALSO DIRECTED TO VERIFY THE RECORDING OF SATISFACTION BY THE A.O OF PERSON SEAR CHED (MR. SUBODH M. SANGHVI) THAT THE DOCUMENTS BELONGED TO THE APPELLANT AND THAT IT REP RESENTED UNDISCLOSED INCOME OF ASSESSEE APPELLANT. PURSUANT TO THE ABOVE ORDER OF HONOURABLE ITAT, IN ORDER TO VERIFY THE ACTUAL DATE OF TRANSFER OF SEIZED MATERIALS TO THE A.O OF ASSESSEE , ASSESSING OFFICER WAS VIDE LETTER DATED IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 5 30 06/20011 ASKED TO SPECIFY THE SAME & ALSO THE RE CORDING OF SATISFACTION BY A.O OF THE PERSON SEARCHED. A.O VIDE LETTER DATED 07/07/2011 S UBMITTED HIS REPORT, RELEVANT PORTION OF THE SAME ARE REPRODUCED HEREUNDER:- 'IN THIS CONNECTION, IT IS TO REPORT THAT A SEARCH ACTION U/S.132 OF THE I.T. ACT WAS CARRIED OUT AT THE RESIDENCE OF SHRI SUBODH M. SAN GHVI ON 22.12.2044. DURING THE COURSE OF SEARCH, TWO DOCUMENTS WERE FOUND IN W HICH TRANSACTIONS WERE CARRIED OUT BY THE ASSESSEE, SHRI VIJAY M. VIM AWALA. DURING THE COURSE OF SEARCH, CERTAIN LOOSE PAPERS WERE FOUND AND SEIZED, WHICH WERE EXHIBITED AT PAGE NO.28 & 31 OF ANNEXURE-A3 CONTAINING SATAKHAT IN RE SPECT OF SALE OF PLOT NO. 1/69 OF T.P. SCHEME NO.4 ADMEASURING 1800 SQ. FTS. TO SHRI VIJAY M. VIMAWAL. THEREAFTER, THE ACIT, CENTRAL CIRCLE-1, SWAT PAS SED ON AN INTIMATION TO THE ACIT, CENTRAL CIRCLE-3, SURAT REGARDING THE DOCUMEN TS FOUND AND SEIZED REQUESTING HIM TO TAKE ACTION U/S 153C OF THE ACT W HICH ARE MARKED AT FLAG 1 OF THE CASE RECORDS. IT WAS ONLY AFTER THE RECEIPT OF THIS INTIMATION THAT PROCEEDINGS IN THE CASE OF THE ASSESSEE COULD BE INITIATED, SIN CE THE RELEVANT DOCUMENTS WERE IN THE POSSESSION OF THE ACIT, CENTRAL CIRCLE-1, SU RAT. THE THEN AO, ACIT, CENTRAL CIRCLE-3, SURAT COMMUNICATED THE REASONS TO THE ASSESSEE VIDE HIS LETTER NO ACIT/CC-3/MISC/2009-10 DATED 04/05/2009 WHICH IS EXHIBITED AT FLAG 2 OF THE ASSESSMENT RECORD. THE THEN AO, ACIT, CENTRAL CIRCL E-3 ON THE BASIS OF LETTER DATED 03.11.2006 ALONG WITH RECEIPT OF THE RELEVANT DOCUMENTS ON THE BASIS OF WHICH THE ASSESSMENT WAS COMPLETED 143(3) R.W.S. 15 3C ON 30.11.2007 _ _ _ _ _ _ _. 3. IT IS EVIDENT FROM THE FLAG MARKED 'A ' THAT TH E IMPOUNDED/SEIZED MATERIAL HAS NOT BEEN TRANSFERRED TO THIS OFFICE AT THE TIME OF TRANSFER OF CASE RECORDS.' 3.1. AFTER GOING THROUGH ABOVE REMAND REPORT OF ASS ESSING OFFICER, IT IS CLEAR THAT INTIMATION REGARDING SEIZURE OF CERTAIN LOOSE PAPER S AND DOCUMENTS RELATED TO ASSESSEE WAS COMMUNICATED TO A.O OF ASSESSEE ALONG WITH COPY OF SEIZED MATERIALS ONLY VIDE LETTER DATED 03/11/2006. PROVISO TO SECTION 153C(1) OF THE ACT PROVIDES THAT IN CASE OF OTHER PERSON, REFERENCE TO THE DATE OF INITIATION OF SEAR CH SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNTS OR OTHER DO CUMENTS SEIZED BY A.O HAVING JURISDICTION OVER SUCH OTHER PERSON. ACCORDINGLY, IN VIEW OF THE REPORT OF THE A.O. & THE INTERPRETATION ON PROVISIONS OF SECTION 153C(1) REA D TOGETHER WITH ITS PROVISO MADE BY HONOURABLE ITAT, A.O COULD REOPEN ASSESSMENTS IN AS SESSEE'S CASE BY ISSUING NOTICE U/S153C OF THE ACT ONLY FROM A.Y 2001-02 & ONWARDS AS DATE OF TRANSFER OF SEIZED MATERIALS IS 03/11/2006. CONSEQUENTLY, REOPENING OF ASSESSMENT FOR A.Y 1999-2000 IS NOT VALID & THEREFORE, ASSESSMENT ORDER PASSED U/S 143( 3) R.W.S. 153C OF THE ACT FOR A.Y 1999-2000 IS WITHOUT JURISDICTION AND HENCE QUASHED . AS ASSESSMENT ORDER ITSELF DOES NOT SURVIVE, NO DISCUSSION IS MADE ON THE MERITS OF THE CASE. 4. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 6 4.1 BEFORE US LD. D.R. SUPPORTED THE ORDER OF A.O. AND ALSO SUBMITTED THE WRITTEN SUBMISSIONS DATED 07.10.2015 WHICH READS AS UNDER: THE HON'BLE ITAT VIDE IT'S ORDER DATED 05/06/2009 HAS RESTORED THE MATTER TO THE FILE OF CIT(A) FIRSTLY ON THE BASIS OF LEGALITY AND ON MERI TS. THE ID.CIT(A) HAS PASSED THE ORDER AS UNDER: 'AFTER GOING THROUGH ABOVE REMAND REPORT OF ASSESSI NG OFFICER, IT IS CLEAR THAT INTIMATION REGARDING SEIZURE OF CERTAIN LOOSE PAPER S AND DOCUMENTS RELATED TO ASSESSEE WAS COMMUNICATED TO A.O. OF ASSESSEE ALONG WITH COPY OF SEIZED MATERIALS ONLY VIDE LETTER DATED 03/11/2006. PROVIS O TO SECTION 153C(1) OF THE ACT PROVIDES THAT IN CASE OF OTHER PERSON, REFERENCE TO THE DATE OF INITIATION OF SEARCH SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECE IVING THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS SEIZED BY A.O. HAVING JURISDICTION OVER SUCH OTHER PERSON. ACCORDINGLY, IN VIEW OF THE REPORT OF THE A.O. & TH E INTERPRETATION OF PROVISIONS OF SECTION 153C(1) READ TOGETHER WITH ITS PROVISO MADE BY HONOURABLE ITAT, A.O. COULD REOPEN ASSESSMENTS IN ASSESSEE'S CASE BY ISSU ING NOTICE U/S. 153C OF THE ACT ONLY FROM A.Y.2001-02 & ONWARDS AS DATE OF TRANSFER OF SEIZED MATERIALS IS 03/11/2006. CONSEQUENTLY, REOPENING OF ASSESSMENT F OR A.Y.1999-2000 IS NOT VALID AND THEREFORE, ASSESSMENT ORDER PASSED U/S.14 3(3) R.W.S.153C OF THE ACT FOR A.Y.1999-2000 IS WITHOUT JURISDICTION AND HENCE QUA SHED. AS ASSESSMENT ORDER ITSELF DOES NOT SURVIVE, NO DISCUSSION IS MADE ON T HE MERITS OF THE CASE.' 2. THE LD.CIT(A) RELYING UPON THE PROVISO TO SECTIO N 153C(1) OF THE ACT, HAS HELD THAT ASSESSMENT COULD BE REOPENED IN ASSESSEE'S CAS E BY ISSUING NOTICE U/S.153C ONLY FROM A.Y.2001-02 ONWARDS AS DATE OF TRANSFER OF SEI ZED MATERIALS IS 03/11/2006. PROVISO TO SECTION 153(C)(1) IS REPRODUCED AS UNDER: 'PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE RE FERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SECTION ( 1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON.' 3. AS PER THE ABOVE PROVISION, IN THE CASE OF ASSES SMENT U/S.153C, THE DATE OF INITIATION OF SEARCH, FOR THE PURPOSE OF SECOND PRO VISO TO SUB-SECTION (1) OF SECTION 153A SHALL BE DATE OF RECEIVING OF THE BOOKS OF ACCOUNTS BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE CASE. THE ASSESSMENT/REASSESS MENT OF SIX ASSESSMENT YEARS HAS BEEN PROVIDED IN SECTION 153A(1)(B) IN WHICH IT HAS BEEN STATED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX AS SESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THEREFORE, THE SIX ASSESSMENT YEARS HAVE TO BE CONSIDERED FROM THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED. IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 7 4. THE PROVISO TO SECTION 153C REFERS TO DATE OF IN ITIATION OF SEARCH FOR THE PURPOSE OF SECOND PROVISO TO SECTION 153A WHICH IS IN REGAR D TO ABATEMENT OF PAST PROCEEDINGS. THE INTENTION OF SECOND PROVISO TO SECTION 153A IS ONLY TO AVOID DUPLICITY OF THE PROCEEDINGS. SO FAR AS THE ASSESSMENTS/REASSESSMENT S ARE CONCERNED, IT IS TO BE DETERMINED FROM THE PREVIOUS YEAR IN WHICH THE SEAR CH WAS CONDUCTED. 5. THE ABOVE PROVISION IS ALSO CLEAR FROM THE EXPLA NATORY NOTES ON THE FINANCE ACT 2005 (CIRCULAR NO.3/2006). 6. . THE HON'BLE ITAT, DELHI 'B' BENCH IN ITAT NO.1 344/DEL/2012 FOR A.Y.20004-05 IN THE CASE OF DSL PROPERTIES PVT.LTD. VS. DCIT, CENTR AL CIRCLE-8 HAS OBSERVED AS UNDER: 'AS PER PROVISO TO SECTION 153C, THE DATE OF SEARCH IS TO BE SUBSTITUTED BY THE DATE OF RECEIVING THE BOOKS OF ACCOUNTS OR DOCUMENT S OR ASSETS SEIZED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON.' THE INTERPRETATION OF THE HON'BLE BENCH IS ERRONEOU S AS THE PROVISO TO SECTION 153C SUBSTITUTES THE DATE OF INITIATION OF SEARCH B Y DATE OF RECEIVING THE BOOKS OF ACCOUNTS AND THAT TOO ONLY FOR THE PURPOSE OF SECON D PROVISO TO SUB-SECTION (1) OF SECTION 153A WHICH DEALS WITH ABATEMENT OF PENDING CASES. T HE PREVIOUS YEAR IN WHICH SEARCH HAS BEEN CONDUCTED AS PROVIDED IN SECTION 153A(1)(B ) HAS NOT BEEN ALTERED BY THE PROVISO TO SECTION 153C. IN VIEW OF THE ABOVE, THE JUDGMENT OF THE HON'BLE DELHI TRIBUNAL NEEDS RECONSIDERATION. 6. THE LD.CIT(A) HAS NOT COMPLIED WITH THE DIRECTIO N OF HON'BLE ITAT, 'B' BENCH, AS HE HAS NOT ADJUDICATED THE MERITS OF THE APPEAL. IT IS , THEREFORE, PRAYED THAT ORDER OF THE CIT(A) BE SET ASIDE. 4.2 LD. A.R. ON THE OTHER HAND SUPPORTED THE ORDER OF CIT(A) AND FURTHER SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNA L IN ORDER DATED 5.6.2009 HAS ALREADY HELD THAT THE ORDER PASSED FOR A.Y. 1999-20 00 WAS BARRED BY LIMITATION AND THE MATTER WAS ONLY REMITTED TO CIT(A) FOR VERIFICA TION OF THE DATE OF HANDING OVER OF THE DOCUMENT BY THE A.O. OF THE SEARCHED PERSON TO THE A.O. OF THE ASSESSEE. HE THUS SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CO-ORDINATE BENCH VIDE ORDER DATED 05.06.2009 HAS HELD THAT THE ASSESSMENT FOR A.Y. 1999-2000, BEING THE IMPUGNED A SSESSMENT, IS BARRED BY LIMITATION. WE FURTHER FIND THAT CIT(A) IN THE SET ASIDE PROCEEDINGS AND AFTER IT(SS)A NO .237/AHD/2012 (ITO VS. SHRI VIJAY M. VIMAWALA) A.Y. 1999-2000 8 CONSIDERING THE REMAND REPORT FROM A.O. HAS ALSO GI VEN A FINDING OF FACT THAT THE DATE OF TRANSFER OF SEIZED MATERIAL BY THE A.O. OF THE SEARCHED PERSON TO THE A.O. OF THE ASSESSEE WAS 03.11.2006 AND THEREFORE THE ASSES SMENT FOR A.Y. 1999-2000 WAS BARRED BY LIMITATION. BEFORE US, REVENUE HAS NOT PL ACED ANY MATERIAL ON RECORD TO SHOW THAT AGAINST THE AFORESAID ORDER OF THE TRIBUN AL, IT HAD PREFERRED APPEAL TO HIGH COURT OR THE ORDER OF THE TRIBUNAL HAS BEEN ST AYED BY HONBLE HIGH COURT. IN VIEW OF THE AFORESAID FACTS AND IN THE ABSENCE OF A NY CONTRARY BINDING DECISION, WE FIND NO REASON TO INTEREFERE WITH THE ORDER OF CIT( A) AND THUS THIS GROUND OF REVENUE IS DISMISSED. 6. IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON 06-04- 2016. SD/- SD/- (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED. 06/04/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD