The DCIT, Circle 1(1), V. Shri Sushil Kumar Jain,

ITSSA 54/IND/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9618 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-01-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-12-2009
• Assessment Year: misc
• Appeal Filed On: 01-05-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K SINGH
• Assessee Lawyers: RAVI SARDA
• Keywords: Principle of natural justice; Block assessment; Reassessment proceedings
• Section: 143(3); 142(1); 153A; 147; 148; 6; 132; 11; 139

Judgement Text

PAGE 1 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : N.A. I.T(SS)A.NO.54/IND/2007 A.Y. : 2004-05 DY. CIT, SHRI SUSHIL KUMAR JAIN, CIRCLE 1(1), VS 04, NAYAPURA, UJJAIN UJJAIN APPELLANT RESPONDENT APPELLANT BY : SHRI K.K. SINGH, CIT DR RESPONDENT BY : SHRI RAVI SARDA, ADV. DATE OF HEARING : 17.12.2009 O R D E R PER V.K. GUPTA, A.M. THIS APPEAL, FILED BY THE REVENUE, ARISES OUT OF OR DER OF THE LD. CIT(A), UJJAIN, DATED 26.02.2007, FOR THE ASSESSMEN T YEAR 2004-05. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. IN THIS APPEAL, THE REVENUE IS AGGRIEVED BY THE DE CISION OF THE LD. CIT(A) IN HOLDING THAT ASSESSMENT FOR ASSESSMEN T YEAR 2004-05 BEING THE YEAR IN WHICH SEARCH TOOK PLACE COULD NOT BE MA DE U/S 153A OF THE INCOME-TAX ACT, 1961, AND, THEREFORE, ANNULLING THE SAME. PAGE 2 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 4. THE FACTS, IN BRIEF, ARE THAT THERE WAS A SEARCH O PERATION U/S 132(1) AGAINST THE ASSESSEE ON 25.9.2003. THE A.O. ISSUED NOTICE U/S 153A REQUIRING THE ASSESSEE TO FILE RETURN OF INCOM E FOR ASSESSMENT YEAR 2004-05, TO WHICH THE ASSESSEE REPLIED THAT AS PER PROVISIONS OF SECTION 153A, RETURNS OF INCOME FOR SIX PRECEDING ASSESSMEN T YEARS TO THE ASSESSMENT YEAR IN WHICH SEARCH HAD BEEN CONDUCTED HAD TO BE FILED. HOWEVER, THE ASSESSEE ALSO MENTIONED IN THE SAID R EPLY THAT RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 HAD ALREADY BEEN FILED U/S 139 OF THE INCOME-TAX ACT, 1961, THEREFORE, THE SAME COULD BE CONSIDERED AS A RETURN OF INCOME FOR THE PURPOSE OF MAKING AN ASSESSMENT. THE A.O., HOWEVER, RELYING ON THE PROVISIONS OF SECTION 153B(1)(B) OF THE INCOME-TAX ACT, 1961, HELD THAT TIME LIMIT FOR COMPLETING THE ASSES SMENT FOR THIS YEAR WAS 31 ST MARCH, 2006, AND THE SAME COULD NOT BE OBSERVED UN LESS THE RETURN OF INCOME WAS REQUIRED UNDER THE SPECIAL PROVISIONS RE LATING TO SEARCH CASES. HE FURTHER HELD THAT THE LANGUAGE USED IN SECTION 1 53A AND 142(1) WAS NOT DIFFERENT. ACCORDINGLY, HE REJECTED THE RELEVAN T CONTENTIONS OF THE ASSESSEE. THE A.O., ACCORDINGLY, ISSUED NOTICE U/S 143(2) ON 6 TH MARCH, 2006, AND PROCEEDED FOR COMPLETING THE ASSESSMENT I N TERMS OF PROVISIONS OF SECTION 153A & 153B READ WITH OTHER PROCEDURAL P ROVISIONS OF THE ACT AND COMPLETED THE ASSESSMENT BY DETERMINING TOTAL I NCOME AT RS. 13,93,323/- AS AGAINST INCOME RETURNED BY THE ASSES SEE AT RS. 4,31,530/-. PAGE 3 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER INTO APPEAL BEFORE THE LD. CIT(A), WHEREIN THE ASSESSEE CHALLENGED THE ACT ION OF A.O. ON LEGAL GROUND AS WELL AS ON MERITS. THE ASSESSEE, IN THE C OURSE OF SUCH PROCEEDINGS, SUBMITTED THAT AS PER PROVISIONS OF SE CTION 153A OR 153C ONLY SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVA NT TO PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED WERE COVERED AND, THEREF ORE, FOR ASSESSMENT YEAR 2004-05, ASSESSMENT COULD BE MADE ONLY IN ACCO RDANCE WITH THE PROVISIONS OF SECTION 143(3) OR 144 AND NOT BY INVO KING SECTION 153A. THE ASSESSEE ALSO PLEADED THAT RETURN OF INCOME HAD BEEN FILED ON 1.11.2004, HENCE, THE NOTICE U/S 143(2) COULD BE SE RVED ONLY UP TO 30/11/2005, AND SINCE THE SAME HAD BEEN SERVED ON 6 .3.2006, HENCE, THE ASSESSMENT MADE BY THE ASSESSING OFFICER WAS INVALI D FOR THIS REASON ALSO. THE LD. CIT(A) HELD THAT THE A.O. MADE A PATE NT AND OBVIOUS MISTAKE BY APPLYING PROVISIONS OF SECTION 153A AS F OR THIS YEAR NO RETURN WAS REQUIRED TO BE FILED U/S 153A, NOR ANY NOTICE W AS REQUIRED TO BE ISSUED UNDER THAT SECTION FOR SUCH YEAR AND, THEREF ORE, NO ASSESSMENT WAS POSSIBLE FOR SUCH YEAR U/S 153A. ACCORDINGLY, HE AN NULLED THE ASSESSMENT PASSED BY THE ASSESSING OFFICER. HE FURTHER HELD TH AT SINCE NOTICE U/S 143(2) HAD NOT BEEN SERVED WITHIN 12 MONTHS AND, TH EREFORE, THE ASSESSMENT WAS INVALID EVEN U/S 143(3) OF THE ACT. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. PAGE 4 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 5. THE LD. DEPARTMENTAL REPRESENTATIVE NARRATED THE FA CTS AND CONTENDED THAT THE ACT HAD PROVIDED PROCEDURE FOR A SSESSMENT AND EVEN IN CASE OF SPECIAL SITUATIONS LIKE BLOCK ASSESSMENT OR NEW PROCEDURE FOR MAKING ASSESSMENT IN SEARCH CASES, THE PROVISIONS O F SECTION 143/144, WERE CARDINAL. HE FURTHER CONTENDED THAT AS COMPARE D TO BLOCK ASSESSMENT PROCEEDINGS FALLING UNDER CHAPTER XIV, THE NEW SCHE ME OF ASSESSMENT IN CASE OF SEARCH BROUGHT ON STATUTE BY WAY OF SECTION S 153A, 153B AND 153C, THE INCOME HAD TO BE ASSESSED AS PER THE NORM AL PROVISIONS OF THE ACT AND SUCH NORMAL PROVISIONS WERE TO APPLY TO THE EXTENT POSSIBLE AS PER THE PROVISIONS OF SECTION 153A(1)(A). HE FURTHE R CONTENDED THAT EVEN IF PROVISIONS OF SECTION 143(2) WERE TO BE PUT INTO OPERATION, TIME LIMIT PRESCRIBED THEREIN WAS NOT TO APPLY AND, THEREFORE, THE ASSESSMENT ORDER COULD NOT BE TERMED AS INVALID FOR THE REASON THAT NOTICE U/S 143(2) HAD BEEN SERVED BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH SUCH RETURN WAS FURNISHED. HE FURTHER CONTEND ED THAT ABSURDITY HAD TO BE AVOIDED AND IF A LITERAL CONSTRUCTION RESULTE D INTO SUCH A SITUATION THEN IT WAS PREFERABLE TO MAKE A PURPOSIVE CONSTRUC TION TO FURTHER THE OBJECTS OF THE ACT. FOR THIS PROPOSITION, HE PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF J.H. GO LTA AS REPORTED IN 156 ITR 323, AND IN THE CASE OF SHRI SAJJAN MILLS LIMIT ED, 156 ITR 585. PAGE 5 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 6. THE LEARNED COUNSEL, ON THE OTHER HAND, CONTENDED T HAT THE PROVISIONS OF SECTION 153A, PROVIDED FOR ASSESSMENT /RE-ASSESSMENT OF TOTAL INCOME OF EACH OF SIX ASSESSMENT YEARS IMMEDI ATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH WAS CONDUCTED. HENCE, ASSESSMENT YEAR 2004-05, BEING TH E SEARCH YEAR WAS NOT AT ALL COVERED UNDER THE PROVISIONS OF SECTION 153A. IN THIS REGARD, HE PLACED RELIANCE ON THE FOLLOWING :- (I) CIRCLULAR NO.7 OF 2003 DATED 5 TH SEPT.,2003, REPORTED IN 263 ITR (ST)62 PAGE 1-4. (II) CIRCULAR NO.3 OF 2006 DT27TH FEB.,2006, REPORTED IN 281 ITR (ST.)222, PAGE 5 8. (III) ARTICLE IN 272 ITR (ST) 17 TO 23. (IV) ARTICLE IN 281 ITR (ST) 9 TO 24 PAGE 9 15. (V) COMMENTARY OF SAMPATH IYENGAR,(2006) 10 TH EDITION PART 5 PAGE 8475 TO 8479 PAGE 16-20 7. HE FURTHER CONTENDED THAT NOTICE U/S 153A WAS MANDA TORY. HENCE, A VALID ASSESSMENT COULD NOT BE MADE UNLESS THERE WAS A SERVICE OF THE NOTICE U/S 153A AND IN VIEW OF THE FACT THAT SECTION 153A CONTEMPLATED ISSUE OF NOTICE FOR SIX YEARS PRECEDIN G THE SEARCH, NO RETURN WAS TO BE FILED FOR THE YEAR OF SEARCH U/S 153A AND , THEREFORE, NO ASSESSMENT COULD BE POSSIBLE UNDER THAT SECTION. TH E LEARNED COUNSEL, PAGE 6 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN THEREAFTER, DREW OUR ATTENTION TO RELEVANT PORTION OF THE MATERIAL RELIED ON BY HIM. ON A QUERY FROM THE BENCH REGARDING THE NAT URE AND SCOPE OF PROVISIONS OF EXPLANATION 1 TO SECTION 153A AND PRO VISIONS OF SECTION 153B(1)(B), THE LEARNED COUNSEL CONTENDED THAT THES E PROVISIONS WERE RELATED TO PROCEDURE OF COMPLETION OF ASSESSMENT U/ S 153A READ WITH OTHER PROVISIONS OF THE ACT AND, THEREFORE, THESE C OULD NOT EXTEND THE SCOPE OF THE PROVISIONS OF SECTION 153A INDIRECTLY. THE LD COUNSEL ALSO CONTENDED THAT DIRECTION BY THE LD. CIT(A) TO THE A O TO TAKE ACTION U/S 147, IF ANY HAD ESCAPED ASSESSMENT WERE NOT CORRECT IN LAW AND FOR THIS HE MAINLY RELIED ON THE DECISIONS OF THE HONBLE SUPRE ME COURT IN THE CASE OF CIT VS. GREE WORLD CORPORATION 13TTJ 509 SC AND IN THE CASE OF RAJENDRA NATH VS. CIT AS REPORTED IN 120ITR 14(SC) APART FROM TWO OTHER DECISIONS OF THE TRIBUNAL. 8. THE LD. DEPARTMENTAL REPRESENTATIVE, IN THE REJOIND ER, CONTENDED THAT IF THE ASSESSMENT OF THE PREVIOUS YE AR, IN WHICH THE SEARCH HAD BEEN CONDUCTED, HAD NOT TO BE MADE AS PER THE P ROVISIONS OF SECTION 153A/153B, THEN THERE WAS NO REQUIREMENT OF BRINGIN G THE PROVISIONS OF SECTION 153B(1)(B) ON STATUTE, AS THE TIME LIMIT FO R COMPLETING SUCH ASSESSMENT COULD HAVE BEEN TAKEN CARE OF BY THE PR OVISIONS OF SECTION 153 ONLY. PAGE 7 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 9. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 10. THE ISSUES, WHICH REQUIRE ADJUDICATION BY US, CAN B E SUMMARIZED AS UNDER : (I) WHETHER ASSESSMENT FOR THE PREVIOUS YEAR IN WHICH SEARCH IS INITIATED U/S 132 OR REQUISITION U/S 132A IS MADE HAS TO BE DONE IN ACCORDANCE WITH THE PROVISIO NS OF SECTION 153A/153B OF THE ACT. (II) IF SO, THEN WHETHER TIME LIMIT FOR SERVICE OF NOTIC E U/S 143(2) OF THE ACT SHALL ALSO APPLY AND HOW SUCH TIM E LIMIT SHALL BE DETERMINED. 11. BEFORE PROCEEDING FURTHER, WE CONSIDER IT RELE VANT TO REPRODUCE RELEVANT PROVISIONS OF SECTION 153A & 153 B AS UNDER :- 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFF ICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM A ND PAGE 8 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139 ; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING T O ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS 88 [SUB-SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE. 89 [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN AN NULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING A NYTHING CONTAINED IN SUB-SECTION (1) OR SECTION 153 , THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECO ND PROVISO TO SUB- SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM T HE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER: P ROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF S UCH ORDER OF ANNULMENT IS SET ASIDE.] PAGE 9 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN EXPLANATION . FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO T HE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESP ECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL B E CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. TIME LIMIT FOR COMPLETION OF ASSESSMENT UNDER SEC TION 153A 153.B (1)NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 153 , THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT, (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WIT HIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B) OF 89 [SUB-SECTION (1) OF] SECTION 153A , WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SE ARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED; (B) IN RESPECT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A , WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED : 12. IF WE ANALYZE THE PROVISIONS OF SECTION 153A AGAIN , THEN, IT EMERGES THAT THIS SECTION OPERATES IN THE FOLLOWING FIELDS :- 1. IT GIVES JURISDICTION TO THE A.O. TO ISSUE NOTICE F OR SIX BACK ASSESSMENT YEARS AND TO ASSESS OR RE-ASSESS TO TAL INCOME OF SUCH SIX ASSESSMENT YEARS. PAGE 10 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 2. THE A.O. HAS TO ASSESS OR RE-ASSESS THE TOTAL INCOM E IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. 3. THE PENDING ASSESSMENT OR RE-ASSESSMENT RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SU CH SIX ASSESSMENT YEARS SHALL ABATE. 4. THE TAX IS TO BE CHARGED AT THE RATE OR RATES AS APPLICABLE TO SPECIFIC ASSESSMENT YEAR FALLING IN S UCH BLOCK. 5. SAVE AS OTHERWISE PROVIDED IN SECTION 153A, 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THE ACT S HALL APPLY. 6. NO TIME LIMIT HAS BEEN PRESCRIBED FOR ISSUE OF NOTI CE U/S 153A NOR ANY TIME LIMIT HAS BEEN PRESCRIBED FOR FILING OF RETURN IN PURSUANCE TO NOTICE ISSUED U/S 153A. HOWEVER, SUCH NOTICE MAY PRESCRIBE THE TIME FRAME WITHIN WHICH THE RETURN IS REQUIRED TO BE FURNISHED . 7. THE RETURN SO FURNISHED SHALL BE TREATED AS WERE REQUIRED TO BE FILED U/S 139. 8. THE PROVISIONS OF SECTION 143 ARE NOT OVERRIDDEN. 13. THUS, THERE CAN BE THREE SITUATIONS FOR MAKING AN A SSESSMENT U/S PAGE 11 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 153A I.E., FIRSTLY, THE REASSESSMENT OF ALL COMPLET ED ASSESSMENTS FALLING UNDER THE PERIOD OF SIX ASSESSMENT YEARS ; SECONDLY , THERE COULD BE PENDING ASSESSMENT OR REASSESSMENT OF ANY ASSESSME NT YEAR FALLING IN SUCH PERIOD AND IN THAT CASE, SUCH PENDING ASSESSME NT SHALL ABATE AND THE ASSESSEE WOULD BE REQUIRED TO FILE A FRESH RETURN U /S 153A AND ASSESSMENT OR RE-ASSESSMENT OF SUCH YEAR SHALL BE DONE U/S 153 A; THIRDLY, ASSESSMENT FOR THE YEAR IN WHICH SEARCH IS CONDUCTED (WHICH HA S BEEN DISPUTED IN THE PRESENT APPEAL). AS FAR AS FIRST TWO ASPECTS ARE CO NCERNED, THE PROVISIONS ARE ABSOLUTELY CLEAR. HOWEVER, THE SCOPE OF OPERATI ON OF THE PROVISIONS OF SECTION 153A, MAY BE DIFFERENT IN FIRST TWO SITUATI ONS, BECAUSE IN THE CASE OF COMPLETED ASSESSMENT/RE-ASSESSMENT, THE RE-ASSES SMENT WOULD BE LIMITED IN SCOPE HAVING REGARD TO THE FACT THAT JUR ISDICTION U/S 153A IN SUCH SITUATION IS A RESULT OF AN ACTION AS PER THE PROVISIONS OF SECTION 132 AND 132A I.E. THE INCOME ALREADY ASSESSED PLUS UNDI SCLOSED INCOME/UNDISCLOSED ASSETS PERTAINING TO A SPECIFIC YEAR WOULD BECOME THE TOTAL INCOME FOR SUCH YEAR. IN THE SECOND SITUATION I.E. IN THE CASE OF PROCEEDINGS IN RELATION TO AN ABATED ASSESSMENT, TH E SCOPE OF PROVISIONS OF SECTION 153A WOULD BE LITTLE WIDER IN A SENSE TH AT THERE HAS TO BE ONE ASSESSMENT /RE-ASSESSMENT FOR SUCH YEAR AND, THEREF ORE, IN ADDITION TO THE UNDISCLOSED INCOME/ASSETS, THE OTHER CLAIMS OF THE ASSESSEE, WHICH MAY NORMALLY FALL WITHIN THE SCOPE OF PROVISIONS OF SEC TION 143, SECTION 143 PAGE 12 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN READ WITH SECTION 144 OR SECTION 143 READ WITH SECT ION 147, WOULD ALSO BE COVERED. SIMILARLY, THE SCOPE OF ASSESSMENT U/S 153-A FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH TOOK PLACE OR REQUISITION WAS MADE WOULD BE WIDER I.E. IT WOUL D ALSO COVER THE MATTERS OF SECTION 143 OF THE ACT. THUS, IN NUT-SHE LL, SECTION 153A CAN BE SUMMARIZED AS A COMBINATION OF SECTION 143, SECTION 147 AND FACTUALLY FOR ASSESSMENT OR RE-ASSESSMENT OF TOTAL INCOME IN RESPECT OF CASES COVERED BY SECTION 132 OR SECTION 132A. 14. IT IS FURTHER PERTINENT TO NOTE THAT NEW SCHEME OF ASSESSMENT IN RESPECT OF SEARCH CONDUCTED AFTER MAY 31, 2003, IS MATERIALLY DIFFERENT FROM SPECIAL PROCEDURE OF SEARCH ASSESSMENT CONTA INED IN CHAPTER XIV- B WHICH WAS ABANDONED AS TO CONTROVERSIES SPRUNG UP QUESTIONING TREATMENT OF PARTICULAR INCOME AS UNDISCLOSED AND W HETHER THERE WAS ANY MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABL E THERETO. IN THIS BACKGROUND, WHEN WE READ THE PROVISIONS OF SECTION 153A, IT IS NOTED THAT IT STARTS WITH A NON-OBSTANTE CLAUSE OVERRIDING THE PROVISION OF SECTION 139,147,148,149,150,151 AND 153. IT IS ALSO NOTED T HAT RETURN U/S 153A HAS TO BE IN PRESCRIBED FORM. THE OTHER IMPORTANT E FFECT OF PROVISION OF SECTION 153A(1) IS THAT IT GIVES A JURISDICTION TO THE A.O. TO INITIATE ASSESSMENT PROCEEDINGS BY ISSUING NOTICE UNDER THIS SECTION. THIS SECTION ALSO CREATES AN OUTER LIMIT OF THE SIX BACK ASSESSM ENT YEARS FOR WHICH AN PAGE 13 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN ASSESSMENT/REASSESSMENT COULD BE DONE UNDER THIS SE CTION IN CASE OF SEARCH/REQUISITION MADE U/S 132/132A. HOWEVER, IN O UR VIEW, THERE CAN NOT BE A MANDATORY JURISDICTION FOR SIX BACK YEARS, EVEN FOR THOSE ENTITIES, WHICH WERE NOT IN EXISTENCE IN ALL SUCH SIX YEARS A ND WHICH IS ALSO SO BECAUSE OF THE FACT THAT JURISDICTION U/S 153A IS F OR ASSESSMENT OR REASSESSMENT OF TOTAL INCOME OF EACH YEAR FALLING I N SUCH PERIOD. THUS, SCOPE OF SECTION 153A, IF VIEWED IN THIS MANNER, CA NNOT BE INTERPRETED TO MEAN THAT ASSESSMENT IN RESPECT OF PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED OR REQUISITION WAS MADE, CANNOT BE MADE I N ACCORDANCE WITH PROVISIONS OF SECTION 153A READ WITH SECTION 153B O R 153C AS CONTENDED BY THE ASSESSEE. IT IS FURTHER NOTEWORTHY THAT CONC EPT OF BROKEN PERIOD IN THE YEAR OF SEARCH APPLICABLE FOR BLOCK ASSESSMENT IS NOT PRESENT UNDER THE NEW SCHEME, HENCE, THE A.O. HAS TO WAIT TO EXERCISE THE ASSESSMENT POWERS AFTER THE RELEVANT FINANCIAL YEAR DURING WHI CH SEARCH TOOK PLACE AND SUCH PROCEDURE, IN FACT, PROVIDES AN OPPORTUNIT Y TO ASSESSEE TO DISCLOSE UNEXPLAINED ASSETS/INCOME IN SUCH RETURN A ND AVOID PENALTY. IT IS ALSO PERTINENT TO MENTION HERE THAT NOTICE U/S 153A REQUIRING THE ASSESSEE TO FILE RETURN FOR SUCH IS, GENERALLY, NOT TO BE IS SUED FOR THE PREVIOUS YEAR OF SEARCH OR REQUISITION PRECISELY FOR THE REASON T HAT THE ASSESSEE IS REQUIRED TO FILE RETURN FOR THE SUCH PREVIOUS YEAR OF SEARCH IN NORMAL PAGE 14 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN COURSE AND, IN CASE OF FAILURE OF THE ASSESSEE TO D O SO, THE A.O. CAN ISSUE NOTICE U/S 142(1) OF THE ACT TO FILE THE RETURN U/S 139(4). 15. THUS, ABSENCE OF REQUIREMENT OF ISSUE OF NOTICE U/ S 153A FOR THE YEAR OF SEARCH, IN OUR OPINION, DOES NOT RESULT INTO AN INFERENCE THAT ASSESSMENT OF PREVIOUS YEAR OF SEARCH IS TO BE MADE AS PER THE NORMAL PROVISIONS OF THE ACT, SPECIALLY WHEN STATE OF PROV ISIONS OF SECTION 153A IS NOT DIFFERENT FROM SCOPE OF PROVISIONS OF SECTIO N 143 FOR MAKING ASSESSMENT OF TOTAL INCOME OF SUCH YEAR. WE MAY FU RTHER ADD THAT, IN CASE, ANY NOTICE U/S 153A IS ISSUED IN CASE OF SUCH PREVIOUS YEAR, THE SAME SHOULD BE CONSTRUED AS ISSUED U/S 142(1) AS TH E SCOPE OBJECT OF THESE TWO PROVISIONS ON THE ASPECT OF REQUIRING THE ASSES SEE TO FILE THE RETURN IS SAME. EVEN OTHERWISE, UNDER THE NEW SCHEME, TOTAL I NCOME HAS TO BE COMPUTED AS PER THE NORMAL PROVISIONS OF THE ACT AN D TAX, INTEREST AND PENALTY ALSO IS TO BE LEVIED AS PER THE GENERAL PRO VISIONS OF THE ACT APPLICABLE TO SUCH ASSESSMENT YEAR, HENCE, THERE CA NNOT BE ANY PREJUDICE TO THE ASSESSEE MERELY BECAUSE AN A.O. PROCEEDS TO MAKE AN ASSESSMENT IN CASE OF YEAR OF SEARCH AS PER THE PROVISIONS OF SECTION 153A READ WITH SECTION 153B, PARTICULARLY WHEN TIME LIMIT OF SERVI CE OF NOTICE U/S 143(2), SUBJECT TO PROVISIONS OF SECTION 153B, WOULD ALSO B E APPLICABLE (REASONS ON THIS ASPECT ARE GIVEN LATER IN THIS ORDER). PAGE 15 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 16. WE ALSO FIND THAT AS PER EXPLANATION (I), TIME LIMI T PRESCRIBED U/S 153B FOR COMPLETION OF ASSESSMENT U/S 153A IS T O OVERRIDE THE TIME LIMIT PROVIDED FOR COMPLETION OF ASSESSMENT U/S 143 OR 144 IN SECTION 153 OF THE ACT. WE FURTHER FIND THAT THE HEADING OF SEC TION 153B IS TIME LIMIT FOR COMPLETION OF ASSESSMENT U/S 153A. IT I S A SETTLED PRINCIPLE THAT HEADING OF A PARTICULAR SECTION ALSO INDICATES ABOU T NATURE AND SCOPE OF SUCH PROVISION AND IF VIEWED IN THIS PERSPECTIVE, THEN, IT WOULD AGAIN BE CLEAR THAT ASSESSMENT OF THE PREVIOUS YEAR, IN WHIC H SEARCH TOOK PLACE, IS REQUIRED TO BE COMPLETED AS PER THE PROVISIONS OF S ECTION 153A READ WITH SECTION 153B OF THE ACT. IN THIS REGARD, MEMORANDUM EXPLAINING THE FINANCE BILL 2000 AS REPORTED IN 260 ITR (ST)219 -2 21, ALSO MENTIONS THAT PROVISIONS OF SECTION 153A, 153-B AND 153C WERE INS ERTED TO PROVIDE FOR ASSESSMENT IN THE CASE OF SEARCH OR MAKING REQUISIT ION. 17. THE LEARNED CIT DR HAS ALSO CONTENDED THAT AS AGAI NST THE LITERAL CONSTRUCTION, THE CONSTRUCTION WHICH RESULT ED INTO ATTAINMENT OF THE OBJECTS OF THE ACT, HAS TO BE PREFERRED. IN THIS R EGARD, WE ARE OF THE VIEW THAT THE SETTLED POSITION OF LAW IS THAT IF THERE I S NO AMBIGUITY THEN, LITERAL CONSTRUCTION SHOULD BE GIVEN EFFECT AS SUCH ALTHOUG H WHICH MAY RESULT INTO HARDSHIP. HOWEVER, IN THE CONTEXT OF PRESENT DISPUTE, IN OUR HUMBLE OPINION, THE PROVISIONS OF LAW DO NOT APPEAR SO CLE AR OR UNAMBIGUOUS AS IS EVIDENT FROM THE DISCUSSION MADE HEREINBEFORE. IN THIS REGARD, WE MAY PAGE 16 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN FURTHER POINT OUT THAT IF THE ASSESSEES VIEW THAT THE ASSESSMENT FOR THE FINANCIAL YEAR WHEREIN SUCH SEARCH UNDER SECTION 13 2 TOOK PLACE OR REQUISITION WAS MADE UNDER SECTION 132A, HAS TO BE COMPLETED AS PER THE NORMAL PROVISIONS OF THE ACT, THEN PROVISIONS OF SE CTION 153B(1)(B) WOULD BECOME REDUNDANT. FURTHER, THERE WOULD ALSO A RISE A POSSIBILITY OF SUCH ASSESSMENT BEING TREATED AS TIME BARRED U/S 15 3B(1)(B) BECAUSE AS PER THE PROVISIONS OF SECTION 153, THE TIME LIMIT F OR COMPLETION OF ASSESSMENT UNDER SECTION 143(3) IS MORE THAN THE NO RMAL TIME LIMIT AVAILABLE TO THE ASSESSING OFFICER FOR COMPLETING T HE ASSESSMENT UNDER SECTION 153A READ WITH SECTION 153B OF THE ACT. FUR THER, IF THE ASSESSMENT OF SEARCH YEAR IS TO BE COMPLETED UNDER SECTION 143 AS SUCH, THEN, THERE APPEARS NO REASON AS TO WHY SUCH ASSESS MENT SHOULD BE COMPLETED WITHIN THE TIME LIMIT PRESCRIBED UNDER SE CTION 153B(1)(B) AND NOT WITHIN THE TIME LIMIT PRESCRIBED UNDER SECTION 153. ACCORDINGLY, WE AGREE WITH LD CIT DR THAT A PURPOSIVE AND HARMONIOU S CONSTRUCTION OF THESE PROVISIONS SHOULD BE DONE. 18. FURTHER, THE PROVISIONS OF SECTION 153C(2) ALSO PR OVIDE FOR COMPLETION OF ASSESSMENT IN RESPECT OF THE PERSON O THER THAN THE PERSON REFERRED TO IN SECTION 153A IN THE MANNER PROVIDED IN SECTION 153A. NO DOUBT, THE PROVISIONS OF SECTION 153C(2) PROVIDE FO R SPECIFIC SITUATIONS WHEREIN THE ASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR RELATING TO THE PAGE 17 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SE CTION 132 OR REQUISITION IS MADE UNDER SECTION 132A HAS TO BE MA DE IN THE MANNER PROVIDED IN SECTION 153A. HOWEVER, IN OUR OPINION, WHERE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON RECEIVES THE BOOKS OF ACCOUNT OR DOCUMENTS, ETC. BEFORE THE DUE DATE OF F URNISHING THE RETURN OF INCOME FOR SUCH ASSESSMENT YEAR, THEN ALSO, THE ASS ESSMENT WOULD BE COMPLETED IN THE MANNER PROVIDED UNDER SECTION 153A OF THE ACT BECAUSE IN THAT CASE, THE AO CAN ASSESS/RE-ASSESS U/S 153C( 1) IN ROUTINE COURSE. WE ARE, ACCORDINGLY, OF THE VIEW THAT IF UNDER SPEC IFIC CIRCUMSTANCES AS PROVIDED U/S 153C(2) ASSESSMENT OF A PERSON COVERED UNDER SECTION 153C HAS TO BE COMPLETED IN THE MANNER PROVIDED IN SECTI ON 153A OF THE ACT, THEN, THERE SHOULD NOT BE ANY NO DOUBT THAT THE ASS ESSMENT IN CASE OF A SEARCHED PERSON FOR THE YEAR OF SEARCH HAS TO BE CO MPLETED UNDER SECTION 153A READ WITH SECTION 153B OF THE ACT. 19. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE LD. CIT(A) WAS NOT CORRECT IN LAW IN HOLDING THAT ASSESSMENT F OR THE PREVIOUS YEAR IN WHICH SEARCH TOOK PLACE OR REQUISITION WAS MADE HAD TO BE COMPLETED UNDER THE NORMAL PROVISIONS OF THE ACT. 20. NOW, WE SHALL DEAL WITH THE SECOND ISSUE. THE LD. DEPARTMENTAL REPRESENTATIVE HAS CONTENDED THAT THOUGH THE NOTICE U/S 143(2) WAS REQUIRED TO BE SERVED, HOWEVER, TIME LIMIT OF 12 MO NTHS WAS NOT PAGE 18 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN APPLICABLE. WE ARE UNABLE TO ACCEPT THIS CONTENTION FOR THE REASON THAT THE PROVISIONS OF EXPLANATION (I) TO SECTION 153A ARE U NAMBIGUOUS AND WHICH PROVIDE THAT SAVE AS OTHERWISE PROVIDED IN SE CTION 153A, 153B OR 153C ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY T O THE ASSESSMENT MADE UNDER THIS SECTION. IT IS FURTHER NOTED THAT AS PER THE PROVISIONS OF SECTION 153A(1)(A) OF INCOME TAX ACT, 1961,, THE ASSESSING OFFICER GETS JURISDICTION BY ISSUING A NOTICE AND AS PER THE PRO VISIONS OF THIS CLAUSE, THE PERSON RECEIVING SUCH NOTICE IS REQUIRED TO FUR NISH RETURN OF INCOME IN RESPECT OF SUCH SIX ASSESSMENT YEARS WITHIN SUCH PE RIOD AS MAY BE SPECIFIED IN THE SAID NOTICE. IT IS ALSO PROVIDED THAT THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS I F SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 OF THE ACT. THUS , NO MINIMUM OR MAXIMUM TIME LIMIT HAS BEEN PRESCRIBED U NDER CLAUSE (A) OF SUB-SECTION (1) OF SECTION 153A FOR ISSUE OF NOTICE AND FILLING OF RETURN. IF THIS LEGAL POSITION IS FURTHER ANALYZED THEN, IN OU R HUMBLE OPINION, THE TIME LIMIT SPECIFIED IN SUCH NOTICE WOULD BE EQUIVA LENT TO TIME LIMIT PRESCRIBED UNDER SECTION 139(1) OF THE ACT, MEANING THEREBY THAT IF THE ASSESSEE DOES NOT FILE A RETURN IN RESPONSE TO NOTI CE ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSING OFFICER MAY ISSUE NO TICE UNDER SECTION 142(1) AND IN THE EVENT OF THE ASSESSEE DOES NOT FI LE ANY RETURN EVEN THEN, THE AO MAY COMPLETE THE ASSESSMENT UNDER SECTION 15 3A BY APPLYING PAGE 19 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN PROVISIONS OF SECTION 144 READ WITH SECTION 143(2) OF THE ACT. ACCORDINGLY, IN OUR OPINION, THE WORDS SO FAR AS M AY BE USED IN SECTION 153A(1)(A) OPERATE IN A DIFFERENT FIELD I.E COVER T HE STAGE UPTO FILING OF RETURN AND CONSEQUENCES OF NON-FILING OF RETURN AND PROVISIONS OF EXPLANATION (I) GOVERN THE FIELD RELATING TO MAPING OF ASSESSMENT AND LEGAL CONSEQUENCES THEREOF. THUS, WE DO NOT FIND AN Y MERIT IN THE CONTENTION OF THE LEARNED CIT DR THAT THE TIME LIMI T PRESCRIBED UNDER SECTION 143(2) FOR SERVICE OF NOTICE WOULD NOT APPL Y. IN THIS REGARD, WE ARE FURTHER OF THE VIEW THAT THE CONTENTION OF THE LEARNED CIT DR THAT ALL ASSESSMENTS ARE TO BE CONSIDERED AS COMPLETED UNDER SECTION 143/144 ONLY, IS NOT CORRECT IN LAW, BECAUSE SECTION 143 OP ERATES IN TWO DIFFERENT FIELDS I.E. FIRSTLY, IT GIVES ORIGINAL JURISDICTION TO THE A.O. TO ASSESS THE TOTAL INCOME OF AN ASSESSEE AS PER PROVISIONS OF LA W AND, SECONDLY, IT REQUIRES THAT IN DOING SO, THE A.O. SHALL FOLLOW TH E PRINCIPLES OF NATURAL JUSTICE BY GIVING DUE OPPORTUNITY TO THE ASSESSEE B EFORE COMPLETING THE ASSESSMENT AND, THEREFORE, WHEN REASSESSMENT IS MAD E U/S 147, THEN ONLY THE SECOND ASPECT OF THE PROVISIONS OF SECTION 143 COMES INTO PLAY. WE ARE FURTHER OF THE VIEW THAT THE SECOND ASPECT AS M ENTIONED ABOVE RATHER MAKES IT OBLIGATORY ON THE PART OF THE A.O. TO SERV E THE NOTICE U/S 143(2) WITHIN THE TIME LIMIT PRESCRIBED THEREUNDER AS THER E IS NO EXEMPTION FROM SUCH REQUIREMENT IN SECTION 153A, 153B AND 153C OF THE ACT. WE ARE PAGE 20 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN FURTHER OF THE VIEW THAT THE PROVISIONS OF EXPLANAT ION (I) TO SECTION 153A ARE MATERIALLY DIFFERENT FROM THE PROVISIONS OF SEC TION 158BC(B) AS IN THAT SECTION, THE WORDS SO FAR AS MAY BE EXISTED AND SUCH WORDS ARE NOT USED BY THE LEGISLATURE IN SUCH EXPLANATION. HAVIN G STATED SO, IT IS ALSO IMPORTANT TO NOTE THAT IN CASE OF BLOCK ASSESSMENT U/S 158BC INSPITE OF HAVING A DIFFERENT WORDINGS, JUDICIAL OPINION WAS T HAT NOTICE U/S 143(2) WAS REQUIRED TO BE SERVED IN THE MANNER AS SPECIFIE D IN SECTION 143(2) TO PASS A LEGAL VALID ORDER U/S 158BC. IN THIS REGARD, A REFERENCE MAY BE TAKEN OF THE LATEST DECISION OF THE HON'BLE DELHI H IGH COURT IN THE CASE OF CIT VS. PAWAN GUPTA AS REPORTED IN 318 ITR 322. THU S, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 153A & 153B, WHIC H ARE MORE APPARENT IN THIS REGARD, WE CANNOT ACCEPT THIS CONTENTION OF THE REVENUE. THE LEARNED CIT DR HAS ALSO TRIED TO ARGUE THAT THERE W OULD ARISE SOME INCONSISTENCY/ABSURDITY, IF SUCH REQUIREMENT WAS EN VISAGED IN CASE OF SEARCH ASSESSMENTS. IN THIS REGARD HE HAS CITED TH E PROVISIONS OF SECTION 139(4) AND ITS CONSEQUENTIAL IMPACT AS REGARDS THE TIME LIMITATION. WE ARE, HOWEVER, NOT CONVINCED WITH THIS ARGUMENT OF T HE LEARNED CIT DR AS WELL FOR THE REASON THAT AS PER THE PROVISIONS OF S ECTION 139(4) THE RETURN CAN BE FILED BY AN ASSESSEE BEFORE EXPIRY OF ONE YE AR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F ASSESSMENT, WHICHEVER IS EARLIER. HENCE, WHEN THE TIME LIMIT F OR COMPLETION OF PAGE 21 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN ASSESSMENT AS PER THE PROVISIONS OF SECTION 153B IS LESS, THEN NATURALLY THE ASSESSEE CAN FILE RETURN UNDER SUCH SECTION BEF ORE COMPLETION OF SUCH ASSESSMENT ONLY. TO PUT IT DIFFERENTLY, THE EXTEND ED TIME LIMIT UNDER THE NORMAL CIRCUMSTANCES WOULD NOT BE AVAILABLE TO AN A SSESSEE IN WHOSE CASE ASSESSMENT IS TO BE COMPLETED UNDER SECTION 15 3A/153C READ WITH SECTION 153B OF THE ACT. THUS, IN SUM AND SUBSTANCE ALL OTHER PROVISIONS OF THE ACT, SAVE AS OTHERWISE PROVIDED IN SECTIONS 153A, 153B AND 153C, HAVE TO BE NECESSARILY APPLIED AND, THEREFORE, TIME LIMIT OF SERVICE OF NOTICE U/S 143(2) SHALL ALSO APPLY. ACCORDINGLY, WE REJECT THIS CONTENTION OF THE REVENUE. 21. NOW, OTHER ASPECT INVOLVED IS THAT HOW SUCH TIME L IMIT SHALL BE DETERMINED. IN THE PRESENT CASE, NOTICE U/S 143(2) HAS BEEN ISSUED ON 6.3.2006 AFTER ISSUE OF NOTICE U/S 153A WAS ISSUED , AND IN RESPONSE TO WHICH THE ASSESSEE VIDE ITS LETTER DATED 12.11.2005 HAS STATED THAT RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05, FILED U/S 13 9 OF THE INCOME-TAX ACT, 1961 FILED ON 1.11.2004 COULD BE TREATED AS RE TURN FILED IN RESPONSE TO NOTICE U/S 153A. THUS, IN OUR HUMBLE OPINION, TH E TIME LIMIT FOR SERVICE OF NOTICE U/S 143 (2) SHOULD BE CONSIDERED FROM THE DATE OF SAID LETTER FILED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSUED U/S 153A AND NOT FROM THE 1.11.2004 WHEN RETURN FOR A.Y 2004-2005 HAD BEE N FILED BY THE ASSESSEE. PAGE 22 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN 22. WE FURTHER ADD THAT THE TIME PERIOD OF 12 MONTHS F OR SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS THE OUTER LIMIT FOR MAKING AN ASSESSMENT UNDER SECTION 143(3) AS SUCH OR UNDER SE CTION 143(3) READ WITH SECTION 147 OF THE ACT. HENCE, SUCH TIME LIMI T HAS TO BE EXERCISED IN A MANNER SO AS THE ASSESSING OFFICER CAN COMPLETE T HE ASSESSMENT U/S 153A OR U/S 53C R.W.SECTION 153A WITHIN THE TIME LI MIT PRESCRIBED UNDER SECTION 153B(B) OF THE ACT. TO PUT IT DIFFERENTLY, TIME LIMIT PRESCRIBED U/S 143(2) FOR SERVICE OF NOTICE CANNOT EXTEND THE TIME LIMIT PRESCRIBED FOR COMPLETION OF ASSESSMENT UNDER SECTION 153B(1)(B) O F THE ACT. THIS IS ALSO SO BECAUSE AS PER EXPLANATION (I) TO SECTION 1 53A, THE TIME LIMIT PRESCRIBED FOR COMPLETION OF ASSESSMENT PROCEEDINGS U/S153 B(1)(B)WOULD PREVAIL OVER THE LIMIT PRESCRIBED AS P ER THE PROVISIONS OF SECTION 143(2) OF THE ACT. ACCORDINGLY, WE HOLD THA T CONDITION OF TIME LIMIT FOR SERVICE OF NOTICE U/S 143(2) SHALL ALSO A PPLY TO ASSESSMENT/REASSESSMENT PROCEEDINGS CONTEMPLATED U/ S 153A AND IT WOULD START FROM THE END OF THE MONTH IN WHICH RETU RN IS FILED IN RESPONSE TO NOTICE ISSUED U/S 153A/142(1) AND, IN CASE, NO S UCH NOTICE HAS BEEN ISSUED, THEN, IT SHALL BE CONSTRUED FROM THE END OF MONTH IN WHICH RETURN WAS FILED. 23. IN THE RESULT, THE LD. CIT(A)S ORDER IS REVERSED IN RESPECT OF BOTH THE ASPECTS. SINCE THE LD. CIT(A) HAS NOT DECI DED THE ISSUE OF PAGE 23 OF 23 - I.T.A.NO. 54/IND/2007 SUSHIL KUMAR JAIN, UJJAIN ADDITION OF RS. 9,61,793/- MADE BY THE ASSESSING OF FICER U/S 69-C ON MERITS, IN VIEW OF HIS DECISION ON LEGAL GROUNDS RA ISED BY THE ASSESSEE, HENCE, WE DIRECT THE LD. CIT(A) TO DECIDE THE ISSUE ON MERITS. ACCORDINGLY, WE FIND NO NECESSITY TO EXPRESS ANY OP INION ON THE DIRECTIONS/OBSERVATIONS BY THE LD. CIT(A) IN THE IM PUGNED APPELLATE ORDER REGARDING A.OS FREEDOM TO INITIATE ACTION U/ S 147/148, BECAUSE THE SAME WOULD BE TAKEN CARE OF BY THE DECISION OF THE LD. CIT(A) ON MERITS AND FURTHER IN VIEW OF THE FACT THAT DOUBLE ADDITIO N OF SAME INCOME CAN NOT BE MADE. 24. IN THE RESULT, THE APPEAL FILED BY THE REVENUE ST ANDS ALLOWED IN TERMS INDICATED ABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPE N COURT ON 20 TH JANUARY, 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20 TH JANUARY, 2010, CPU* 7D15.1