ACIT, CC-I, Lucknow V. M/s. Lucknow Developers Pvt. Ltd., , Lucknow

ITSSA 239/LKW/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3502 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 20-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PERTAINING TO ASSESSMENT YEARS
• Assessee Lawyers: ARE SIMILAR IN BOTH APPEAL S
• Keywords: Document seized; Question of law; Tax effect; Documents seized
• Section: 153A; 260A; 64; 13; 153; 153C; 148; 132; 15

Judgement Text

I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW (THROUGH VIRTUAL HEARING) BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER I.T.(SS)A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2010-11 & 11-12 A.C.I.T., CENTRAL CIRCLE-1, LUCKNOW. VS. M/S LUCKNOW MALL DEVELOPERS PVT. LTD., 426, T.G. CIVIL LINES, NEW HYDERABAD, LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE A GAINST THE SEPARATE ORDERS OF LEARNED CIT(A), DATED 03/06/2020 AND 17/06/2020 PERTAINING TO ASSESSMENT YEARS 2011-12 & 2012-13 RE SPECTIVELY. BOTH THE APPEALS WERE HEARD TOGETHER THEREFORE, FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. TH E GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE SIMILAR IN BOTH THE APPEAL S. FOR THE SAKE OF COMPLETENESS, THE GROUNDS TAKEN BY THE REVENUE IN I .T.A. NO.239/LKW/2020 ARE REPRODUCED BELOW: 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD CIT(A) HAS ERRED IN ANNULLING THE ASSESSMENT O RDER FRAMED U/S 153C IN CASE OF 'OTHER PERSON' (NON-S EARCHED PERSON) ON GROUNDS THAT UNDER SECTION 153C, THE REL EVANT PERIOD OF SIX PRIOR ASSESSMENT YEAR(S) IS TO BE APPELLANT BY SMT. SHEELA CHOPRA, CIT, D.R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 02 /0 9 /20 21 DATE OF PRONOUNCEMENT 12 / 10 /20 21 I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 2 RECKONED FROM THE YEAR OF RECORDING SATISFACTION / HANDING OVER OF SEIZED MATERIAL, WITHOUT APP RECIATING THAT U/S 153C(1) ITSELF IT IS CLEARLY PROVIDED T HAT THE ASSESSMENT CAN BE MADE IN RESPECT OF 'OTHER PERSO N' FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SU B-SECTION (1) OF SECTION 153A WHICH INTER ALIA PROVIDES TO RE CKON THE PERIOD OF SIX ASSESSMENT YEARS W.R.T TO THE PREVIOU S YEAR IN WHICH SEARCH IS INITIATED. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD. CIT(A) WHILE ANNULLING THE ASSESSMENT ORDER FRAMED U/S 153C IN CASE OF OTHER PERSON FAILED TO APPRECIATE THAT SECTION 153C(1) HAS BEEN AMENDED W.E.F. 1.4.2017 TO CLARIFY THAT THE RELEVANT PERIOD OF SIX PRIOR ASSESSMENT YE AR(S) IS TO BE RECKONED FROM THE YEAR OF INITIATION OF SEARCH O NLY AND SINCE THE NOTICE U/S 153C WAS ISSUED AFTER 1. 4.2017 AND ASSESSMENT COMPLETED THEREAFTER, THE ABOVE AMENDMEN TS WERE SQUARELY APPLICABLE AND THAT THE DECISION OF D ELHI HC IN RRJ SECURITIES RENDERED PRIOR TO AMENDMENT WAS INAP PLICABLE. 3. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD. CIT(A) ERRED IN RELYING UPON THE EXPLANATORY MEMORANDUM CIRCULATED VIDE CBDT CIRCULAR NO 2/2018 EXPLAINING AMENDMENTS TO SECTION 153C BY FINANCE AC T 2017 WITHOUT APPRECIATING THAT THE EXPRESSION 'SIX ASSTT YEARS IMMEDIATELY PRECEDING THE ASSTT YEAR RELEVANT TO TH E PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED...' WAS ALREADY A PPEARING IN 2ND PROVISO TO 153C ALSO W.E.F. 1/7/2012 ITSELF AND HENCE THE SAME EXPRESSION INSERTED U/S 153C(1) W.E.F. 1/4/201 7 COULD NOT BE INFERRED TO BE APPLICABLE PROSPECTIVELY BASE D ON CBDT CIRCULAR AS IT IS SETTLED THAT IN CASE OF ANY CONFL ICT BETWEEN STATUTE AND CBDT CIRCULAR, THE FORMER SHALL TAKE TH E PRECEDENCE BECAUSE SIMILAR EXPRESSION APPEARING AT TWO PLACES IN SAME SECTION CANNOT HAVE TWO DIFFERENT DA TES OF APPLICABILITY. 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C IT(A) ERRED IN CONCLUDING THAT THE AMENDMENT WAS APPLICAB LE ONLY FOR SEARCHES CONDUCTED AFTER 1/4/2017 WITHOUT APPRE CIATING THAT THE AMENDMENT U/S 153C(1) INSERTING THE EXPRES SION SIX ASSTT YEARS IN WHICH SEARCH IS CONDUCTED. . WAS ONLY TO PROVIDE A MACHINERY PROVISION WITHOUT IMPOS ING ANY I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 3 NEW CONDITIONS DENYING ANY ACCRUED RIGHTS OR IMPOSI NG DISABILITIES AND INTENDED TO ONLY CURE THE ABSURD C ONSEQUENCES BY APPLICATION OF 1 ST PROVISO TO THE EXTENT OF THE CLARIFYING THE RECKONING OF THE SIX ASSESSMENT YEARS U/S 153C(1) W HICH ALREADY EXISTED PRIOR TO AMENDMENT ALSO. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT WH ILE INTERPRETING A MACHINERY/CURATIVE PROVISIONS, THEY SHOULD BE INTERPRETED IN SUCH WAY THAT IT WOULD GIVE MEANING TO THE CHARGING PROVISIONS AND THAT THE MACHINERY PROVISIO NS ARE LIBERALLY CONSTRUED AS HELD BY APEX COURT IN CASE O F CIT VS M/S CALCUTTA KNITWEARS 362 ITR 673(SC). THEREFORE, AMEN DMENT BROUGHT ON STATUTE ON 1.4.2017 WAS W.R.T TO THE MAC HINERY PROVISION ONLY TO THE EXTENT IT WAS ONLY CLARIFICA TORY/CURATIVE IN NATURE, AND HENCE NEEDS TO BE GIVEN A CONSTRUCTI ON SO AS TO GIVE THE A PURPOSIVE MEANING THEREBY IMPLYING THAT THE INSERTION OF EXPRESSION '...SIX ASSTT YEARS...... IN WHICH SEARCH IS CONDUCTED...' U/S 153C(1) WOULD ALWAYS BE APPLIC ABLE TO ALL PENDING CASES WHERE THE DATE OF RECORDING SATISFACT ION/ HANDING OVER OF SEIZED MATERIAL/ISSUE OF NOTICES U/ S 153C WAS AFTER 1.4.2017 IRRESPECTIVE OF THE YEAR OF SEARCH, AS IN THE PRESENT CASE. 6. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE LD CIT(A) ERRED IN NOT APPRECIATING THAT EVEN AFTER TO AMENDMENT U/S 153C(1) W.E.F. 1/4/2017, THE 1ST PROV ISO WHICH HAD BEEN HEAVILY RELIED BY THE HON'BLE DELHI HC IN RRJ SECURITIES HAS NOT BEEN AMENDED CLEARLY IMPLYING TH EREBY THAT 1ST PROVISO HAD NO RELEVANCE TO THE RECKONING AYS F OR PURPOSES OF MAKING ASSTT U/S. 153C(1). AS SUCH THE DECISION OF DELHI HC IN RRJ SECURITIES (SUPRA) CANNOT BE SAI D TO HAVE LAID DOWN THE CORRECT LAW IN VIEW OF THE SUBSEQUENT AMENDMENT BROUGHT U/S 153C (1) W.E.F. 1/4/2017. 7. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE D EPARTMENT DID FILE THE SLP AGAINST THE DECISION OF HC IN RRJ SECURITIES, BUT THE SAME GOT DISMISSED DUE TO INCORRECT TAGGING WITH ANOTHER CASES; WITH DIFFERENT QUESTION OF LAW AND N O REVIEW WAS FILED BECAUSE TAX EFFECT WAS BELOW THE MONETARY LIMITS AS PRESCRIBED BY THE CBDT FOR FILLING SLP AS EVIDENT F ROM THE CBDT LETTER F. NO. ADG (L&R)-II/SCC/FT5 NO. 200304/2015/2019-20/4638 DATED 25.09.2019. HENCE THE I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 4 DECISION OF DELHI HC IN RRJ SECURITIES HAD NOT REAC HED FINALITY AND WAS NOT A BINDING PRECEDENT IN THE STATE OF UP. 8. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LEARNED CIT(A) ALSO ERRED IN NOT APPRECIATING THAT THE PLEA THAT IMPUGNED AY WAS BEYOND THE SCOPE OF 6AYS U/S 1 53C WAS RAISED BEFORE CIT(A) FOR THE FIRST TIME ONLY AN D THEREFORE CIT(A) OUGHT TO HAVE GIVEN OPPORTUNITY TO THE AO AL SO BY CALLING FOR THE REMAND REPORT IN VIEW OF THE RATIO OF DECISION IN CASE OF CIT VS BRITISH INDIA CORPORATION LTD 337 IT R 64 (ALLD.). 2. LEARNED CIT, D.R., AT THE OUTSET, SUBMITTED THAT THE LEARNED CIT(A) HAS WRONGLY ALLOWED RELIEF TO THE ASSESSEE BY HOLDI NG THAT THE ASSESSMENT YEARS INVOLVED, IN THESE APPEALS, WERE BEYOND THE P ERIOD OF SIX ASSESSMENT YEARS, WHICH WERE REOPENED U/S 153A OF THE ACT. IT WAS SUBMITTED THAT KEEPING IN VIEW THE AMENDMENT WITH EFFECT FROM 01/0 4/2017, THE LEARNED CIT(A) SHOULD HAVE HELD THAT THE BLOCK OF SIX ASSES SMENT YEARS IN THE CASE OF SEARCHED PERSON AS WELL AS IN THE CASE OF OTHER PERSON WILL REMAIN THE SAME WHICH HE HAS OMITTED TO HOLD BY WRONGLY HOLDIN G THAT THE SAID AMENDMENT IS APPLICABLE ONLY FOR SEARCHES CONDUCTED AFTER 01/04/2017 AND WHILE HOLDING SO HE HAS IGNORED AN IMPORTANT ASPECT THAT IN THESE APPEALS THE NOTICES WERE ISSUED AFTER 01/04/2017 AND THEREF ORE, THE AMENDED PROVISIONS WERE APPLICABLE. IT WAS FURTHER SUBMITT ED THAT LEARNED CIT(A), WHILE ALLOWING WRONG RELIEF TO THE ASSESSEE, HAS NO T CONSIDERED THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CI T VS. CALCUTTA KHITWEARS [2014] 362 ITR 673 (SC) WHEREIN IT HAS BE EN HELD THAT THE AMENDMENT TO ANY CHARGING PROVISION HAS TO BE LIBER ALLY CONSTRUED AND HAS TO BE HELD CLARIFICATORY ONLY AND HENCE IS TO BE AP PLIED RETROSPECTIVELY. LEARNED CIT, D.R., FURTHER SUBMITTED THAT THIS ISSU E OF NOT FALLING THESE YEARS WITHIN THE SIX ASSESSMENT YEARS WAS TAKEN FOR THE FIRST TIME BEFORE LEARNED CIT(A) AND, THEREFORE, KEEPING IN VIEW THE RATIO OF DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. BRITISH INDIA CORPORATION I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 5 LTD. [2011] 337 ITR 64 (ALL), THE LEARNED CIT(A) SH OULD HAVE GIVEN OPPORTUNITY TO THE ASSESSING OFFICER TO ADJUDICATE ON THIS GROUND. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, IT WAS ARGUED THAT L EARNED CIT(A) HAS WRONGLY ALLOWED RELIEF TO THE ASSESSEE AND THEREFOR E, IT SHOULD BE REVERSED AND THAT OF ORDER OF ASSESSING OFFICER BE UPHELD. 3. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, HEAVILY PLACED RELIANCE ON THE ORDERS OF LEARNED CIT(A) AND ARGUED THAT WHILE GIVING RELIEF TO THE ASSESSEE THE LEARNED CIT(A) HAS PLACED RELIA NCE ON THE ORDER OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RRJ SECURITIES LTD. [2016] 380 ITR 612 (DEL) WHEREIN HON'BLE COURT HAS CLEARLY HELD THE PROVISIONS PREVAILING BEFORE THE AMENDMENT OF 01/04/2017 WILL BE APPLICABLE IN THE CASE OF THE ASSESSEE AS THE SEARCH WAS CONDUCTED BE FORE 01/04/2017. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT BESIDES THE ABOVE CASE LAW, THE LEARNED CIT(A) HAS ALSO RELIED ON AN ORDER OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SANJAY THAKUR VS. DCIT IN I.T.A. NO.3559/DEL/2015 AND HAS ALSO RELIED ON CBDT CIRCUL AR NO. 2/2018 DATED 15/02/2018 WHEREIN THE CBDT ITSELF HAS CLARIFIED TH AT THE ABOVE AMENDMENT IS VALID FOR THE SEARCHES CONDUCTED ON OR AFTER 01/ 04/2017 AND THEREFORE, IT WAS ARGUED THAT THE RELIANCE PLACED ON THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS M/S CALCUTTA KNITW EARS (SUPRA), IN THE GROUNDS OF APPEAL, IS NOT RELEVANT AS THE CBDT ITSE LF HAS CLARIFIED THE ISSUE. REGARDING THE ISSUE OF PROVIDING OPPORTUNITY TO THE ASSESSING OFFICER, LEARNED COUNSEL FOR THE ASSESSEE ARGUED THAT THE LE GAL ISSUE CAN BE TAKEN AT ANY STAGE OF PROCEEDINGS WHICH HAS BEEN CLARIFIED M ANY TIMES BY THE VARIOUS HON'BLE HIGH COURTS AND HON'BLE SUPREME COU RT AND IN THIS RESPECT RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE SUPR EME COURT IN THE CASE OF NTPC LTD. VS. CIT 229 ITR 383 (SC). LEARNED COU NSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO A PETITION FILED BY THE AS SESSEE UNDER RULE 27 I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 6 WHEREIN THE ASSESSEE HAS TAKEN THE GROUND OF APPROV AL BY JT. CIT U/S 153D OF THE ACT BUT IT WAS SUBMITTED THAT HE WILL NOT BE PRESSING THE SAME AND THE SAME MAY BE DISMISSED AS NOT PRESSED. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS UNDISPUTED FACT THAT A SEARCH TOOK PLACE ON SEARCHED PERSON ON 24/04/2016 WHICH IS BEFORE THE DATE OF 01 /04/2017 WHEREIN THE AMENDMENT TOOK PLACE. WE FURTHER FIND THAT IN THES E CASES THE ASSESSEE IS OTHER PERSON AND DATE OF RECORDING OF SATISFACTION U/S 15 3C FOR ISSUE OF NOTICE U/S 153C IS 30/11/2018 AS NOTED BY LEARNED CIT(A) IN HIS ORD ER VIDE PARA 5.1. FOR THE SAKE OF COMPLETENESS, THE SATISFACTION NOTE RECORDED U/S 153C, PLACED AT PAGES 14 & 15 OF THE PAPER BOOK, HAS BEEN MADE PART OF THIS ORDER AND IS REPRODUCED BELOW: I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 7 I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 8 4.1 THE PROVISIONS OF SECTION 153C, BEFORE THE AMEN DMENT WITH EFFECT FROM 01/04/2017, READS AS UNDER: SECTION 153C. ASSESSMENT OF INCOME OF ANY OTHER PERSON. NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFOR MATION CONTAINED THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 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 TH AT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH O THER 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 REQUISITIO NED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PERSON [FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECE DING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND] FOR THE RE LEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A]:] [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH U NDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF SECTION 153A] SHALL BE CONSTRUED AS REFERENCE TO THE DATE O F RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSE TS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON:] 4.2 THE ANALYSIS OF THE ABOVE PROVISIONS OF THE ACT DEMONSTRATES THAT IN THE CASE OF OTHER PERSON, THE DATE OF INITIATION OF SEARCH WILL BE TAKEN TO BE I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 9 THE DATE OF RECEIVING OF DOCUMENTS OR ASSETS BY THE ASSESSING OFFICER OF THE OTHER PERSON. IN THE PRESENT CASES, THE SEARCH TOO K PLACE ON THE SEARCHED PERSON ON 21/04/2016 AND ASSESSING OFFICER OF THE S EARCHED PERSON RECORDED A SATISFACTION ON 30/11/2018 THAT CERTAIN DOCUMENTS FOUND DURING THE COURSE OF SEARCH OF SEARCHED PERSON RELATED TO THE OTHER PERSON AND ASSESSING OFFICER OF BOTH SEARCHED PERSON AND OTHER PERSON BEING SAME, ON THE SAME DATE HE RECORDED A SATISFACTION TO ISSUE N OTICE TO OTHER PERSON I.E. THE PRESENT ASSESSEES U/S 153C OF THE ACT. SINCE TH E ASSESSING OFFICER, IN THE CASE OF SEARCHED PERSON AND OTHER PERSON I.E. A SSESSEE, WAS SAME, THEREFORE, THERE WAS NO NEED TO TRANSFER ANY ASSET OR DOCUMENTS PHYSICALLY AND THEREFORE, THE DATE OF RECORDING OF SATISFACTIO N I.E. ON 30/11/2018 WILL BE TREATED AS THE DATE OF SEARCH IN THE CASE OF OTH ER PERSON WHICH IS THE ASSESSEE IN THE PRESENT APPEALS. THE HON'BLE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES VIDE ORDER DATED 30/10/2015 HAS H ELD THAT WHERE THE ASSESSING OFFICER OF SEARCHED PERSON AND OTHER PERS ON IS SAME, THE DATE ON WHICH SATISFACTION IS RECORDED, WOULD BE REGARDED A S DATE ON WHICH ASSESSING OFFICER ASSUMES POSSESSION OF SEIZED DOCU MENTS/ASSETS IN HIS CAPACITY AS ASSESSING OFFICER OF OTHER PERSON. THE ASSESSING OFFICER, IN THESE CASES, HAS RECORDED SATISFACTION ON 30/11/201 8 AND THEREFORE, HAS ASSUMED JURISDICTION ON ASSESSEES ON 30/11/2018 AND THEREFORE, THE YEAR DURING WHICH SATISFACTION HAS BEEN RECORDED, WILL B E CONSIDERED AS SEARCH YEAR IN THE CASE OF ASSESSEES. SINCE THE DATE OF S EARCH IN THE PRESENT YEARS FALLS IN FINANCIAL YEAR 2018-19 CORRESPONDING TO AS SESSMENT YEAR 2019-20, SIX ASSESSMENT YEARS PRECEDING THIS ASSESSMENT YEAR , WERE REQUIRED TO BE REOPENED FOR THE PURPOSE OF MAKING ASSESSMENTS U/S 153C OF THE ACT. THE ASSESSMENT YEARS WHICH COULD HAVE BEEN REOPENED U/S 153C ARE ASSESSMENT YEARS 2018-19, 2017-18, 2016-17, 2015-16 , 2014-15 AND 2013- 14. THE APPEALS UNDER CONSIDERATION RELATE TO ASSE SSMENT YEARS 2011-12 AND 2012-13 WHICH DO NOT FALL IN THE ABOVE BLOCK PE RIOD OF SIX YEARS I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 10 THEREFORE, ARE BEYOND THE SCOPE OF PROVISIONS OF SE CTION 153C OF THE ACT. THE HON'BLE DELHI HIGH COURT IN THE CASE OF PRINCIP AL COMMISSIONER OF INCOME TAX VS. SARWAR AGENCY (P.) LTD. [2017] 85 TA XMANN.COM 269 (DELHI), VIDE ORDER DATED 17/08/2017, HAS CONSIDERE D SIMILAR SITUATION AND HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLD ING AS UNDER: 1. THE REVENUE HAS FILED THIS APPEAL UNDER SECTION 260A OF THE INCOME TAX ACT, 1961 (ACT) AGAINST THE ORDER DATED 1ST JULY 2016 PASSED BY THE INCOME TAX APPELLATE TRIBUN AL (ITAT) IN ITA NO. 6039/DEL/2014 PERTAINING TO THE ASSESSMENT YEAR (AY) 2006-07. 2. THE QUESTION SOUGHT TO BE URGED BY THE REVENUE I S WHETHER THE ITAT WAS JUSTIFIED IN HOLDING THAT THE NOTICE ISSUED TO THE ASSESSEE UNDER SECTION 153C OF THE AC T FOR THE AY IN QUESTION, I.E. 2006-07, IS WITHOUT JURISDICTI ON SINCE THE SAID AY IS BEYOND THE PURVIEW OF ISSUANCE OF NOTICE IN TERMS OF THE SAID PROVISION. 3. THE FACTS, IN BRIEF, ARE THAT A SEARCH UNDER SEC TION 132 OF THE ACT TOOK PLACE ON 11TH NOVEMBER 2010 IN THE TIN NA GROUP OF CASES. THE DOCUMENTS PERTAINING TO THE ASSESSEE WERE FORWARDED ALONG WITH A SATISFACTION NOTE BY THE AO OF THE SEARCHED PARTY TO THE AO OF THE ASSESSEE ON 3RD JAN UARY 2013. THE AO OF THE ASSESSEE ISSUED NOTICE TO THE A SSESSEE, WHICH QUA THE SEARCHED PARTY WAS THE 'OTHER PERSON' , UNDER SECTION 153C ON 4TH JANUARY 2013. 4. SUB-SECTION (1) OF SECTION 153 C PROVIDES THAT T HE ASSESSMENT OR RE- ASSESSMENT OF THE INCOME OF THE ' OTHER PERSON' WOULD BE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153 A. THE FIRST PROVISO TO SUB-SECTION (1) OF SECT ION 153 C FURTHER STATES THAT, IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF SEARCH IN THE SECOND P ROVISO TO SECTION 153 A(1) SHALL BE CONSTRUED AS REFERENCE T O THE DATE OF RECEIVING THE BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON. 5. IN TERMS OF SECTION 153 A(1) (B) OF THE ACT, THE AO SHALL ASSESS OR RE- ASSESS THE TOTAL INCOME OF SIX AYS IM MEDIATELY I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 11 PRECEDING THE AY RELEVANT TO THE PREVIOUS YEAR IN W HICH THE SEARCH WAS CONDUCTED. THE SECOND PROVISO TO SUB-SEC TION (1) OF SECTION 153 A OF THE ACT, STATES THAT ASSESSMENT OR RE- ASSESSMENT RELATING TO ANY AY FALLING WITHIN THE PE RIOD OF SIX AYS REFERRED TO IN THE SAID SUB-SECTION PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132, WOULD A BATE. 6. THE CASE OF THE REVENUE IS THAT THE FIRST PROVIS O TO SECTION 153 C REFERS ONLY TO THE SECOND PROVISO TO SECTION 153 A(1) OF THE ACT, WHICH ONLY INDICATES THAT ANY ASSESSMENT R ELATING TO ANY AY FALLING WITHIN THE PERIOD OF SIX AYS WHICH I S PENDING AS OF THE INITIATION OF SEARCH SHALL ABATE. THEREFORE, THE SECOND PROVISO TO SECTION 153C IS ALSO CONCERNED ONLY WITH THE ASPECT OF ABATEMENT OF PENDING ASSESSMENTS. ACCORDING TO T HE REVENUE, THIS MAKES NO DIFFERENCE TO THE COMPUTATIO N OF THE BLOCK OF SIX YEARS PRECEDING THE AY RELEVANT TO THE PREVIOUS YEAR /IN WHICH THE SEARCH WAS CONDUCTED. IN OTHER W ORDS, ACCORDING TO THE REVENUE, THE BLOCK PERIOD FOR BOTH THE SEARCHED PERSON AND THE 'OTHER PERSON' WOULD REMAIN THE SAME NOTWITHSTANDING THAT THERE MAY BE SOME DELAY I N TRANSMITTING THE DOCUMENTS RECOVERED DURING THE SEA RCH WHICH BELONG OR PERTAIN TO THE 'OTHER PERSON' TO TH E AO OF SUCH OTHER PERSON. 7. THE CASE OF THE ASSESSEE, ON THE OTHER HAND, IS THAT SINCE IN THE CASE OF THE 'OTHER PERSON' THE AO ISSUES NOT ICE ONLY SUBSEQUENT TO THE NOTICES ISSUED UNDER SECTION 153 A TO THE SEARCHED PERSON, THE STARTING POINT FOR COMPUTATION OF THE BLOCK PERIOD WOULD BE THE DATE ON WHICH, BASED ON T HE SEIZED DOCUMENTS, NOTICE IS ISSUED TO THE 'OTHER PERSON' U NDER SECTION 153C OF THE ACT. THUS IN THE PRESENT CASE, THE SIX YEAR PERIOD PRIOR TO AY 2012-13 I.E. AY 2007-08 TO AY 20 12-13. THUS NO NOTICE COULD BE ISSUED UNDER SECTION 153 C OF THE ACT TO REOPEN THE ASSESSEE'S ASSESSMENT FOR AY 2006-07. RELIANCE IS PLACED ON THE DECISION OF THIS COURT IN COMMISSI ONER OF INCOMETAX-7 V. RRJ SECURITIES LTD. [2016] 380 ITR 612 (DEL) WHERE THIS VERY QUESTION WAS EXAMINED AND ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 8. IN RRJ SECURITIES (SUPRA), THE COURT AFTER NOTIC ING THE DECISION IN SSP AVIATION LTD. V. DEPUTY CIT [2012] 346 ITR 177 (DEL), HELD AS FOLLOWS: I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 12 21. AS DISCUSSED HEREINBEFORE, ONCE THE AO OF THE SEARCHED PERSON IS SATISFIED THAT THE SEIZED ASSETS/DOCUMENTS BELONG TO ANOTHER PERSON AND THE SAID ASSETS/DOCUMENTS HAVE BEEN TRANSFERRED TO THE AO OF SUCH OTHER PERSON, THE PROCEEDINGS FOR ASSESSMENT/REASSESSMENT OF INCOME OF THE OTHER PERSON HAS TO PROCEED IN ACCORDANCE WITH PROVISIONS OF SECTION 153A OF THE ACT. SECTION 153A REQUIRES THAT WHERE A SEARCH HAS BEEN INITIATED UNDER SECTION 132 OF THE ACT, THE AO IS REQUIRED TO ISSUE NOTICE REQUIRI NG THE NOTICEE TO FURNISH RETURNS OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS RELEVANT TO THE SIX PREVIOUS YEARS PRECEDING THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED. AS DISCUSSED HEREINBEFORE, BY VIRTUE OF SECOND PROVISO TO SECTION 153A, THE ASSESSMENT/ REASSESSMENT PENDING ON THE DATE OF INITIATION OF S EARCH ABATE. IN THE CONTEXT OF PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE REFERENCE TO THE DATE OF INITI ATION OF THE SEARCH IN THE SECOND PROVISO TO SECTION 153A HAS TO BE CONSTRUED AS THE DATE ON WHICH THE AO RECEIVE S THE DOCUMENTS OR ASSETS FROM THE AO OF THE SEARCHED PERSON. THUS, BY VIRTUE OF SECOND PROVISO TO SECTIO N 153A OF THE ACT AS IT APPLIES TO PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE ASSESSMENT/REASSESSMEN T PENDING ON THE DATE ON WHICH THE ASSETS/DOCUMENTS A RE RECEIVED BY THE AO WOULD ABATE. IN RESPECT OF SUCH ASSESSMENTS WHICH HAVE ABATED, THE AO WOULD HAVE TH E JURISDICTION TO PROCEED AND MAKE AN ASSESSMENT. HOWEVER, IN RESPECT OF CONCLUDED ASSESSMENTS, THE A O WOULD ASSUME JURISDICTION TO REASSESS PROVIDED THAT THE ASSETS/DOCUMENTS RECEIVED BY THE AO REPRESENT OR INDICATE ANY UNDISCLOSED INCOME OR POSSIBILITY OF A NY INCOME THAT MAY HAVE REMAINED UNDISCLOSED IN THE RELEVANT ASSESSMENT YEARS..... 24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVISO TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH UNDER THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTRUED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE ASSESSEE (BEING T HE PERSON OTHER THAN THE ONE SEARCHED) TO THE AO HAVIN G JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER PROCEEDINGS, BY VIRTUE OF SECTION 153C(1) OF THE AC T, I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 13 WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REFERENCE TO THE DATE OF SEARCH WOU LD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE O F RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSESSMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENT S COULD BE MADE UNDER SECTION 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WITH REFERENCE TO THE DAT E OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE.' 9. THE SAID DECISION IN RRJ SECURITIES (SUPRA) HAS BEEN FOLLOWED BY THIS COURT SUBSEQUENTLY IN ARN INFRASTR UCTURE INDIA LTD. V. ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCULE-28, NEW DELHI [2017] 394 ITR 569 (DEL.). 10. MR. SALIL AGGARWAL, LEARNED COUNSEL FOR THE ASS ESSEE, HAS DRAWN THE ATTENTION OF THE COURT TO THE RECENT AMEN DMENT MADE IN SECTION 153 C OF THE ACT BY THE FINANCE ACT , 2017 WITH EFFECT FROM 1ST APRIL 2017. THIS AMENDMENT IN EFFECT STATES THAT THE BLOCK PERIOD FOR THE SEARCHED PERSO N AS WELL AS THE 'OTHER PERSON' WOULD BE THE SAME SIX AYS IMMEDI ATELY PRECEDING THE YEAR OF SEARCH. THIS AMENDMENT IS PRO SPECTIVE. 11. MR. ASHOK MANCHANDA, LEARNED SENIOR STANDING CO UNSEL FOR THE APPELLANT, SOUGHT TO PURSUE THIS COURT TO R ECONSIDER ITS VIEW IN RRJ SECURITIES (SUPRA). THE COURT DECLINES TO DO SO FOR MORE THAN ONE REASON. FIRST, FOR REASONS BEST KNOWN TO IT, THE REVENUE HAS NOT CHALLENGED THE DECISION OF THIS COU RT IN RRJ SECURITIES (SUPRA) IN THE SUPREME COURT. THE SAID D ECISION HAS BEEN CONSISTENTLY FOLLOWED BY THE AUTHORITIES UNDER THIS COURT AS WELL AS BY THIS COURT. THIRDLY, THE RECENT AMEND MENT TO SECTION 153 C(1) OF THE ACT STATES FOR THE FIRST TI ME THAT FOR BOTH THE SEARCHED PERSON AND THE OTHER PERSON THE P ERIOD OF REASSESSMENT WOULD BE SIX AYS PRECEDING THE YEAR OF SEARCH. THE SAID AMENDMENT IS PROSPECTIVE. 12. CONSEQUENTLY, NO SUBSTANTIAL QUESTION OF LAW AR ISES FROM THE IMPUGNED ORDER OF THE ITAT. THE APPEAL IS, ACCO RDINGLY, DISMISSED. 4.3 WHILE DISMISSING THE APPEAL OF REVENUE, HON'BL E DELHI HIGH COURT HAS HEAVILY PLACED RELIANCE ON THE ORDER OF HON'BLE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES (SUPRA) WHEREIN THE AMENDMEN T BY THE FINANCE ACT, I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 14 2017 HAS BEEN HELD TO BE PROSPECTIVE. THE GROUNDS O F APPEAL RAISED BY THE REVENUE ARE PRIMARILY BASED ON THE AMENDMENT, WHICH TOOK PLACE ON 01/04/2017 AND THE CRUX OF THE ARGUMENTS OF LEARNED CIT, D.R. IS THAT BY THIS AMENDMENT THE PROVISIONS OF SECTION 153C GETS AMENDED RETROSPECTIVELY AND BLOCK PERIOD OF SIX YEARS IN TH E CASE OF SEARCHED PERSON AND THAT OF OTHER PERSON WILL REMAIN SAME. HOWEVER, WE ARE NOT IN AGREEMENT WITH THE ARGUMENT OF THE DEPARTMENT. THE CBDT, VIDE CIRCULAR NO. 2/2018 DATED 15/02/2018, REPRODUCED BY LEARNED CIT(A) IN HIS ORDER, HAS CLEARLY HELD THAT SUCH AMENDMENT IS APPLICABLE IN CASES OF SEARCHES CONDUCTED ON OR AFTER 01/04/2017. THE CONTENTS OF SUCH CIRCULAR, REPRODUCED BY LEARNED CIT(A), ARE REPRODUCED BELOW: 80. RATIONALISATION OF PROVISIONS OF THE INCOME DE CLARATION SCHEME, 2016 AND CONSEQUENTIAL AMENDMENT TO SECTION 153A AND 153C. 69 80.1 THE PROVISIONS OF CLAUSE (C) OF THE SECTION 19 7 OF THE FINANCE ACT, 2016 PROVIDE THAT WHERE ANY INCOME HAS ACCRUED, ARISEN OR BEEN RECEIVED OR ANY ASSET HAS B EEN ACQUIRED OUT OF SUCH INCOME PRIOR TO COMMENCEMENT O F THE INCOME DECLARATION SCHEME, 2016 (THE SCHEME), AND N O DECLARATION IN RESPECT OF SUCH INCOME IS MADE UNDER THE SCHEME, THEN, SUCH INCOME SHALL BE DEEMED TO HAVE A CCRUED, ARISEN OR RECEIVED, AS THE CASE MAY BE, IN THE YEAR IN WHICH A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 OR SUB- SECTION (2) OF SECTION 143 OR SECTION 148 OR SECTION 153A OR SE CTION 153C OF THE INCOME-TAX ACT IS ISSUED BY THE ASSESSING OF FICER, AND PROVISIONS OF THE SAID ACT SHALL APPLY ACCORDINGLY. 80.2 IN VIEW OF THE VARIOUS REPRESENTATIONS RECEIVE D FROM STAKEHOLDERS, SECTION 197 OF THE FINANCE ACT, 2016 HAS BEEN AMENDED SO AS TO OMIT CLAUSE (C) OF THE SAID SECTIO N. 80.3 APPLICABILITY: THIS AMENDMENT TAKES EFFECT RETROSPECTIVELY FROM 1ST JUNE, 2016. 80.4 HOWEVER, IN ORDER TO PROTECT THE INTEREST OF T HE REVENUE IN CASES WHERE TANGIBLE EVIDENCE(S) ARE FOUND DURIN G A SEARCH I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 15 OR SEIZURE OPERATION (INCLUDING SECTION 132A CASES) AND THE SAME IS REPRESENTED IN THE FORM OF UNDISCLOSED INVE STMENT IN ANY ASSET, SECTION 153A OF THE INCOME-TAX ACT RELAT ING TO SEARCH ASSESSMENTS HAS BEEN AMENDED TO PROVIDE THAT NOTICE UNDER THE SAID SECTION CAN BE ISSUED FOR AN ASSESSM ENT YEAR OR YEARS BEYOND THE SIXTH ASSESSMENT YEAR ALREADY P ROVIDED UP TO THE TENTH ASSESSMENT YEAR IF (I) THE ASSESSING OFFICER HAS IN HIS POSSESSION BOO KS OF ACCOUNTS OR OTHER DOCUMENTS OR EVIDENCE WHICH REVEA L THAT THE INCOME WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO FIFTY LAKH RUPEES OR MORE IN ON E YEAR OR IN AGGREGATE IN THE RELEVANT FOUR ASSESSMENT YEARS(FAL LING BEYOND THE SIXTH YEAR); (II) SUCH INCOME ESCAPING ASSESSMENT IS REPRESENTED IN THE FORM OF ASSET; (III) THE INCOME ESCAPING ASSESSMENT OR PART THEREO F RELATES TO SUCH YEAR OR YEARS. 80.5 APPLICABILITY: THE AMENDED PROVISIONS OF SECTI ON 153A OF THE INCOME-TAX ACT SHALL APPLY WHERE SEARCH UNDER S ECTION 132 OF THE INCOME-TAX ACT IS INITIATED OR REQUISITI ON UNDER SECTION 132A OF THE INCOME-TAX ACT IS MADE ON OR AF TER THE 1ST DAY OF APRIL, 2017. 80.6 SECTION 153C OF THE INCOME-TAX ACT HAS ALSO BE EN AMENDED TO PROVIDE A REFERENCE TO THE RELEVANT ASSE SSMENT YEAR OR YEARS AS REFERRED TO IN SECTION 153A OF THE INCOME-TAX ACT. 80.7 APPLICABILITY: THESE AMENDMENTS TAKE EFFECT FR OM 1ST APRIL, 2017. 4.4 THE LUCKNOW BENCH OF THE TRIBUNAL IN I.T.A. NO. 97 & 98, VIDE ORDER DATED 06/04/2021 HAS ALREADY TAKEN A VIEW IN FAVOUR OF ASSESSEE BY FOLLOWING THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RRJ SECURITIES [2016] 380 ITR 216 (DEL). I.T.A. NOS.239 & 240/LKW/2020 ASSESSMENT YEARS:2011-12 & 12-13 16 4.4 THEREFORE, THE ARGUMENTS OF THE REVENUE DO NOT HAVE ANY FORCE AND IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND FO LLOWING THE JUDICIAL PRECEDENTS, THE GROUNDS OF APPEAL, TAKEN BY THE REV ENUE, ARE DISMISSED. THE PETITION MOVED BY THE ASSESSEE UNDER RULE 27 OF THE I.T. RULES ALSO STANDS DISMISSED. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE S TAND DISMISSED AND THE PETITION FILED BY ASSESSEE UNDER RULE 27 IS ALS O DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/2021) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:12/10/2021 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR