DEPUTY cOMMISSIONER OF iNCOME TAX, Bangalore V. SRI Gali Janrdhan Reddy, Bangalore

MA 149/BANG/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6164 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V ARVIND SENIOR STANDIN G
• Assessee Lawyers: MAYANK JAIN
• Keywords: Search and seizure; Documents seized
• Section: 153A; 132; 144; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNANT MEMBER [M.P. NO. 149/B/2016 (IN ITA NO. 1450/ (BANG) 2014)] (ASSESSMENT YEAR : 2011 12) SHRI GALI JANARDHANA REDDY, NO. 8, ASHOKNAGAR, HAVAMABAVI, SURUGUPPA ROAD, BELLARY 583101. PAN. AFBPR9737D APPELLANT VS THE DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE 1 (3), BANGALORE. RESPONDENT AND [M.P. NO. 152/B/2016 (IN ITA NO. 1457/(BANG) 2014)] (ASSESSMENT YEARS : 2011 12) SMT. G. LAKSHMI ARUNA, NO. 8, ASHOKNAGAR, HAVAMABAVI, SURUGUPPA ROAD, BELLARY 583101. PAN. AFJPA5974P APPELLANT VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1 (3), BANGALORE. RESPONDENT ASSESSEE BY : SHRI MAYANK JAIN, ADVOCATE REVENUE BY : SHRI K. V. ARVIND, SENIOR STANDIN G COUNSEL DATE OF HEARING : 05-01-20 18 DATE OF PRONOUNCEMENT : 06-03-2018 O R D E R PER BENCH: THESE TWO M. PS. ARE FILED BY THE REVENUE ALLEGING CERTAIN APPARENT MISTAKES IN TWO SEPARATE TRIBUNAL ORDERS PASSED IN THE CASES OF THESE TWO DIFFERENT BUT M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 2 CONNECTED ASSESSEES. THESE TWO M. PS. WERE HEARD TO GETHER AND ARE BEING DISPOSED BY WAY OF THIS COMMON ORDER FOR THE SAKE O F CONVENIENCE. 2. THE COMMON CONTENTION RAISED BY THE REVENUE IN B OTH THESE M. PS. IS THIS THAT THE ASSESSMENT YEAR 2011 12 IN BOTH THESE CASES I S PERTAINING TO FINANCIAL YEAR IN WHICH, THE SEARCH WAS CARRIED OUT AND NO PR OCEEDINGS CAN BE INITIATED U/S 153A OR 153C IN RESPECT OF THIS YEAR AND THEREF ORE, THERE IS APPARENT MISTAKE IN BOTH THESE TRIBUNAL ORDERS IN RESPECT OF THIS YEAR BECAUSE IN THESE TWO TRIBUNAL ORDERS, IT WAS HELD THAT THE ASSESSMEN T ORDER FOR THIS YEAR ALSO ALONG WITH THE ORDERS FOR SIX PRECEDING YEARS ARE B AD IN LAW AND WERE QUASHED FOR THIS REASON THAT THE A. O. HAS NOT RECORDED SAT ISFACTION AS REQUIRED U/S 153C IN HIS CAPACITY OF A.O. OF THE SEARCHED PERSON. 3. LEARNED DR OF THE REVENUE HAS MADE WRITTEN SUBMI SSIONS BEFORE US. IN THE SAME, IT IS SUBMITTED THAT THE SEARCH HAS TAKEN PLA CE U/S 132 ON 25.10.2010 IN THE CASE OF SHRI K. RAGHAVACHARYULU AND PROCEEDINGS U/S 153C WERE INITIATED IN THESE TWO CASES FOR A. YS. 2005 06 TO 2010 1 1 BUT THE ASSESSMENT PROCEEDINGS FOR A. Y. 2011 12 I.E. THE YEAR OF SE ARCH WERE COMPLETED U/S 144 R.W.S. 153D OF I T ACT. IT IS SUBMITTED THAT SETTI NG ASIDE THE ASSESSMENT FOR THIS YEAR ON THIS BASIS THAT SATISFACTION U/S 153C WAS N OT RECORDED BY THE A.O. OF THE SEARCHED PERSON IS AN APPARENT MISTAKE AND IT S HOULD BE RECTIFIED U/S 254 (2) OF I T ACT. RELIANCE HAS BEEN PLACED ON A JUDGM ENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF SSP AVIATION LTD. AS REPORTED IN 346 ITR 177 AND IN PARTICULAR, PARA 14 OF THIS JUDGMENT WAS REPRODU CED IN THE WRITTEN SUBMISSIONS. WE ALSO REPRODUCE THE WRITTEN SUBMISSI ONS FILED BY THE LEARNED DR OF THE REVENUE FOR READY REFERENCE. THIS READS A S UNDER:- 1. SEARCH UNDER SECTION 132 WAS CONDUCTED ON 25/10 /2010 IN THE CASE OF SHRI.K.RAGHAVACHARYULU. PURSUANT TO THE SEA RCH, PROCEEDINGS UNDER SECTION 153C OF THE ACT WERE INIT IATED IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 TO 2010-11 AFTER RECORDING SATISFACTION REQUIRED UNDER SECTION 153C OF THE ACT. ASSESSMENTS WERE COMPLETED UNDER SECTION 153C OF TH E ACT FOR THE ASSESSMENT YEAR 2005-06 TO 2010-11. THE ASSESSMENT YEAR 2011-12 BEING THE YEAR OF SEARCH, ASSESSMENT PROCEEDINGS WE RE COMPLETED UNDER SECTION 144 R.W.S 153D OF THE ACT. M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 3 2. THE ASSESSMENT ORDERS FOR ASSESSMENT YEAR 2005-0 6 TO 2011-12 WAS SUBJECT MATTER OF APPEAL BEFORE THE COMMISSIONE R OF INCOME TAX - APPEALS. THE ASSESSEE BEING AGGRIEVED AGAINST THE ORDER OF APPELLATE COMMISSIONER PREFERRED APPEALS BEFORE THI S HONBLE TRIBUNAL FOR ASSESSMENT YEAR'S 2005-06 TO 2011-12. THIS TRIBUNAL BY COMMON ORDER DATED 17/10/2016 SETASIDE THE ASSESSME NT ORDERS FOR THE ASSESSMENT YEAR'S 2005-06 TO 2011-12 ON THE GRO UND THAT SATISFACTION UNDER SECTION 153C OF THE ACT WAS NOT RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON. THE ASSES SMENT FOR THE ASSESSMENT YEAR 2011-12 WAS REGULAR ASSESSMENT AND NO PROCEEDINGS WERE INITIATED UNDER SECTION 153C OF TH E ACT. HENCE SETTING ASIDE OF THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011-12 ON THE GROUND THAT SATISFACTION UNDER SECTION 153C OF THE ACT WAS NOT RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED P ERSON WAS MISTAKE APPARENT ON THE RECORD. THE ABOVE PETITION HAS BEEN FILED SEEKING RECTIFICATION OF THE ABOVE MISTAKE AND TO C ONSIDER THE SAME ON MERITS. 3. SECTION 153A(1)(B) OF THE ACT PROVIDES FOR ASSES S OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PR ECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SUCH SEARCHES CONDUCTED REQUISITION IS MADE. THE DATE OF SEARCH R ELEVANT FOR THE PRESENT CASE IS 25/10/2011 AND ASSESSMENT YEAR 2011 -12 RELEVANT TO THE FINANCIAL YEAR IN WHICH SEARCH WAS CONDUCTED IS EXCLUDED FOR THE PURPOSE OF COMPUTING SIX ASSESSMENT YEARS IN TERMS OF SECTION 153A(1)(B) OF THE ACT. 4. FIRST PROVISO TO SECTION 153A OF THE ACT PROVIDE S FOR ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESS MENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. THE REFERENCE TO 'SUCH SIX ASSESSMENT YEARS IS WITH REFERENCE TO 6 ASSESSMENT YEARS REFERRED TO IN SECTION 153A(1)(B) OF THE ACT. 5. SECOND PROVISO TO SECTION 153A OF THE ACT PROVID ES FOR ABATEMENT OF PENDING ASSESSMENTS AS ON THE DATE OF SEARCH. TH E EFFECT OF THE SECOND PROVISO IS THAT ANY ASSESSMENT PENDING AS ON THE DATE OF SEARCH WITH REFERENCE TO 6 ASSESSMENT YEARS REFERRE D TO IN 153A(1)(B) OF THE ACT WOULD GET ABATED. 6. SECTION 153C OF THE ACT PROVIDES FOR ASSESSMENT IN THE CASE OF OTHER PERSON AND ISSUE OF NOTICE AND ASSESS OR REAS SESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE ACT SUBJECT TO CONDITIONS CONTEMPLATED THERE IN. 7. FIRST PROVISO TO SECTION 153C OF THE ACT REFERS TO SECOND PROVISO OF SECTION 153A(1) OF THE ACT FOR DETERMINATION OF ABA TEMENT OF ASSESSMENTS IN THE CASE OF PROCEEDINGS BEING INITIA TED UNDER SECTION 153C OF THE ACT. THE DATE OF SEARCH FOR THE PURPOSE OF ABATEMENT REFERRED TO IN SECTION 153A OF THE ACT IS PROVIDED TO BE THE DATE OF M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 4 RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSE T SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON. THE EFFECT OF THE FIRST PROVISO IS TH AT THE ASSESSMENTS PENDING IN RESPECT OF THE SIX ASSESSMENT YEARS REFE RRED TO IN SECTION 153A(1)(B) OF THE ACT WOULD GET ABATED ON THE DAY O F RECEIPT OF BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSET SEIZED BY THE ASS ESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. 8. ON A COMBINED READING OF SECTION 153A(1)(B), FIR ST AND SECOND PROVISO TO SECTION 153A OF THE ACT, SECTION 153C AN D THE FIRST PROVISO TO SECTION 153C OF THE ACT WOULD MANDATE THAT PERIO D OF SIX ASSESSMENT YEARS FOR THE PURPOSES OF SECTION 153A A ND 153C OF THE ACT IS ONE AND THE SAME AND WOULD NOT ALTER IN RESP ECT OF BOTH THE PROVISIONS. THE ABOVE UNDERSTANDING IS FURTHER STRE NGTHENED BY THE LANGUAGE OF SECTION 153C(1) OF THE ACT WHEREIN ISSU E OF NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON I N ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE ACT IS PROVID ED. EVEN IF THE PROCEEDINGS UNDER SECTION 153C OF THE ACT ARE INITI ATED, THE PROCEDURE IS CONTEMPLATED UNDER SECTION 153A OF THE ACT. IN VIEW OF THE ABOVE, PERIOD OF SIX ASSESSMENT YEARS FOR THE P URPOSE OF SECTION 153A OF THE ACT REFERRED TO IN CLAUSE (B) TO SECTIO N 153A(1) OF THE ACT WOULD EQUALLY APPLY TO SECTION 153C OF THE ACT. 9. THE ABOVE ISSUE HAS BEEN CONSIDERED BY THE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD 346 ITR 177 WHEREIN AT PARA-14 HELD AS UNDER: '14. NOW THERE CAN BE A SITUATION. WHEN DURING THE SEARCH CONDUCTED ON ONE PERSON UNDER SECTION 132, SOME DOC UMENTS OR VALUABLE ASSETS OR BOOKS OF ACCOUNT BELONGING TO SOME OTHER PERSON, IN WHOSE CASE THE SEARCH IS NOT CONDUCTED, MAY BE FOUND. IN SUCH CASE, THE ASSESSING OFFICER HAS TO F IRST BE SATISFIED UNDER SECTION. 153C, WHICH PROVIDES FOR T HE ASSESSMENT OF INCOME OF ANY OTHER PERSON, I.E., ANY OTHER PERSON WHO IS NOT COVERED BY THE SEARCH, THAT THE B OOKS OF ACCOUNT OR OTHER VALUABLE ARTICLE OR DOCUMENT BELON GS TO THE OTHER PERSON (PERSON OTHER THAN THE ONE SEARCHED). HE SHALL HAND OVER THE VALUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENT TO THE ASSESSING OFFICER HAVING JURISDICTI ON OVER THE OTHER PERSON. THEREAFTER, THE ASSESSING OFFICER HAV ING JURISDICTION OVER THE OTHER PERSON HAS TO PROCEED A GAINST HIM AND ISSUE NOTICE TO THAT PERSON IN ORDER TO ASSESS OR REASSESS THE INCOME OF SUCH OTHER PERSON IN THE MANNER CONTE MPLATED BY THE PROVISIONS OF SECTION 153A. NOW A QUESTION MAY ARISE AS TO THE APPLICABILITY OF THE SECOND PROVISO TO SE CTION 153A IN THE CASE OF THE OTHER PERSON, IN ORDER TO EXAMINE T HE QUESTION OF PENDING PROCEEDINGS WHICH HAVE TO ABATE. IN THE CASE OF THE SEARCHED PERSON, THE DATE WITH REFERENCE TO WHICH T HE PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF ANY A SSESSMENT M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 5 YEAR WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS SHALL ABATE, IS THE DATE OF INITIATION OF THE SEARCH UNDER SECTI ON 132 OR THE REQUISITION UNDER SECTION 132A. FOR INSTANCE, IN TH E PRESENT CASE, WITH REFERENCE TO THE PURI GROUP OF COMPANIES , SUCH DATE WILL BE 5.1.2009. HOWEVER, IN THE CASE OF THE OTHER PERSON, WHICH IN THE PRESENT CASE IS THE PETITIONER HEREIN, SUCH DATE WILL BE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITION BY THE ASSESSING OF FICER HAVING JURISDICTION OVER SUCH OTHER PERSON. IN THE CASE OF THE OTHER PERSON, THE QUESTION OF PENDENCY AND ABATEMENT OF T HE PROCEEDINGS OF ASSESSMENT OR REASSESSMENT TO THE SI X ASSESSMENT YEARS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE.' 10. THE RELIANCE OF THE ASSESSEE ON THE JUDGEMENT O F THE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES LTD IS INCORREC T AND THE SAME HAS NOT DEALT WITH THE PROPOSITION CANVASSED ABOVE. THE DELHI HIGH COURT HAS NOT CONSIDERED THE LIMITED PURPOSE OF SEC OND PROVISO TO SECTION 153A AND FIRST PROVISO TO SECTION 153C OF T HE ACT, WHICH MANDATES THE POINT OF ABATEMENT WITH RESPECT TO PER IOD OF SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A(1)(B) OF THE ACT. FURTHER THE DELHI HIGH COURT HAS NOT CONSIDERED THE IMPLICATION OF REFERENCE MADE TO SECTION 153A OF THE ACT IN SECTIO N 153C OF THE ACT ENABLING ISSUE OF NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF S ECTION 153A OF THE ACT. 11. FURTHER THE DELHI HIGH COURT HAS NOT SPECIFICAL LY HELD THAT THE PERIOD OF SIX ASSESSMENT YEARS WOULD BE DIFFERENT F OR THE PURPOSE OF SECTION 153A AND 153C OF THE ACT. 12. ASSUMING WITHOUT ADMISSION IF THE CONTENTION OF THE ASSESSEE THAT PERIOD OF SIX YEARS HAS TO BE RECORDED WITH RE FERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR A SSET SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON, THE SAME WOULD AMOUNT TO REWRITING OF SECTION 153C OF THE ACT WHICH IS SPECIFICALLY DISAPPROVED BY APEX C OURT AND VARIOUS HIGH COURTS. 13. IF THE CONTENTION OF THE ASSESSEE IS TO BE ANAL YSED, THAT PROCEEDINGS UNDER SECTION 153C OF THE ACT CAN BE IN ITIATED ON THE ASSESSING OFFICER BEING SATISFIED THAT ANY MONEY, B ULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCO UNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERS ON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT FROM READING OF THE ABOVE PROVISION IT IS CLEAR THAT PROCEEDINGS CAN BE INITIATED UNDER SECTION 153C OF THE ACT ON THE BASIS OF THE ABOVE M ATERIAL FOUND IN THE SEARCHED PREMISES BELONGING TO THE OTHER PERSON . PROCEEDINGS UNDER SECTION 153C OF THE ACT WOULD ALWAYS BE POST SEARCH UNDER M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 6 SECTION 132 OF THE ACT IN THE CASE OF THE SEARCHED PERSON. WHEN THE SEARCHED PERSON IS SUBJECTED TO PROCEEDINGS UNDER S ECTION 153A OF THE ACT WITH RESPECT TO 6 ASSESSMENT YEARS RELEVANT TO PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED, PROCEEDINGS INITIATED UNDER SECTION 153C BEING ON THE BASIS OF THE MATERIAL FOUND BELON GING TO THE OTHER PERSON IN THE COURSE OF SEARCH, THE PERIOD OF SIX A SSESSMENT YEARS CANNOT BE AFTER THE SIX ASSESSMENT YEARS OF THE SEA RCHED PERSON OR PERIOD AFTER THE DATE OF SEARCH. IN ANY EVENT IN VI EW OF THE SPECIFIC LANGUAGE OF SECTION 153A AND 153C OF THE ACT, THE P ERIOD OF PROCEEDINGS UNDER SECTION 153A AND 153C OF THE ACT WOULD NOT AND SHALL NOT COVER BEYOND THE PERIOD EXCLUDING THE FIN ANCIAL YEAR IN WHICH SEARCH IS CONDUCTED. IN OTHER WORDS THE OTHER PERSON UNDER SECTION 153C OF THE ACT CANNOT BE PLACED IN A WORSE /DISADVANTAGE POSITION THAN THE PERSON SUBJECTED TO SEARCH UNDER SECTION 132 OF THE ACT AND WHERE THE PROCEEDINGS UNDER SECTION 153A OF THE ACT BEING INITIATED. 14. WITHOUT PREJUDICE TO THE ABOVE CONTENTIONS, IT IS SUBMITTED THAT THE ISSUE OF THE PERIOD OF SIX ASSESSMENT YEARS FOR THE PURPOSES OF SECTION 153C OF THE ACT BEING THE FRESH GROUND RAIS ED IN THE COURSE OF HEARING OF THE MISCELLANEOUS PETITION, THE SAME CANNOT BE ENTERTAINED. EVEN IF SUCH A FRESH GROUND IS TO BE E XAMINED BY THIS HON'BLE TRIBUNAL, THE ORDER DATED 17/10/2016 REQUIR ES TO BE RECALLED AND THE FRESH GROUND HAS TO BE EXAMINED IN THE APPE AL ON RESTORATION. CONSIDERATION OF THE FRESH GROUND IN T HE APPLICATION UNDER SECTION 254(2) OF THE ACT THAT TO ESPECIALLY IN THE APPLICATION FILED BY THE REVENUE WOULD BE BEYOND THE JURISDICTI ON OF THIS HONBLE TRIBUNAL. 15. WITHOUT PREJUDICE TO THE ABOVE CONTENTIONS, FOR THE SAKE OF ARGUMENT IF THE CONTENTION OF THE ASSESSEE IS TO BE ACCEPTED, THE REASONS ASSIGNED BY THIS HON'BLE TRIBUNAL IN THE CO MMON ORDER DATED 17/10/2016 FOR THE ASSESSMENT YEAR 2005-06 AN D 2006-07 WOULD BE INCORRECT AND CONTRARY TO THE STAND TAKEN BY THE ASSESSEE. WHEREFORE, IT IS RESPECTFULLY PRAYED THAT THIS HON' BLE TRIBUNAL MAY BE PLEASED TO ALLOW THE MISCELLANEOUS PETITION, RES TORE THE APPEAL FOR THE ASSESSMENT YEAR 201112 AND ADJUDICATE THE MATTE R ON MERITS IN THE INTEREST OF JUSTICE AND EQUITY. 4. IT IS ALSO SUBMITTED THAT THE RELIANCE PLACED BY THE LEARNED AR OF THE ASSESSEE ON A JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. RRJ SECURITIES LIMITED AS REPORTED IN 380 ITR 612 IS IN CORRECT BECAUSE IN THAT CASE, THE LIMITED ISSUE UNDER CONSIDERATION WAS SECOND PR OVISO TO SECTION 153A AND FIRST PROVISO TO SECTION 153C IN RESPECT OF POINT O F ABATEMENT. IT IS ALSO SUBMITTED THAT HONBLE DELHI HIGH COURT HAS NOT SPE CIFICALLY HELD THAT THE PERIOD M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 7 OF SIX ASSESSMENT YEARS WOULD BE DIFFERENT FOR THE PURPOSE OF SECTION 153A & 153C OF I T ACT. 5. ONE MORE SUBMISSION IS MADE BY THE LEARNED DR OF THE REVENUE THAT UNDER SECTION 153C, THE SATISFACTION TO BE RECORDED BY TH E A.O. OF THE SEARCHED PERSON IS THIS THAT ANY MONEY, BULLION, JEWELLERY O R OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISIT IONED BELONGS TO A DIFFERENT PERSON. IT IS SUBMITTED THAT ADMITTEDLY, THE PERIOD OF SIX YEARS AS PER THE PROVISIONS OF SECTION 153A IN RESPECT OF THE SEARCH ED PERSON IS SIX YEARS RELEVANT TO THE PRECEDING YEARS OF THE SEARCH YEAR. HE SUBMITTED THAT HOW THE SAID PERIOD OF SIX YEARS CAN INCLUDE ANY PERIOD AFT ER THE SAID SIX YEARS INCLUDING THE PERIOD AFTER THE DATE OF SEARCH. THE LAST CONT ENTION RAISED IS THIS THAT THE ISSUE IN RESPECT OF PERIOD OF SIX ASSESSMENT YEARS FOR THE PURPOSE OF SECTION 153C IS A FRESH GROUND AND IT CANNOT BE RAISED IN T HE M. P. PROCEEDINGS U/S. 254 (2). 6. LEARNED AR OF THE ASSESSEE HAS PLACED RELIANCE O N A JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. RR J SECURITIES LIMITED AS REPORTED IN 380 ITR 612 AND SUBMITTED THAT AS PER T HIS JUDGMENT, THE SIX ASSESSMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENT S COULD BE MADE UNDER SECTION 153C OF THE ACT HAVE TO BE CONSTRUED WITH R EFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE A SSESSEE. IN THIS REGARD, HE HAS DRAWN OUR ATTENTION TO PARA 5.1 OF THIS JUDGMEN T IN RESPECT OF FACTS OF THAT CASE AND PARAS 23 & 24 IN RESPECT OF THE DECISION. HENCE, WE REPRODUCE THESE PARAS FOR THE SAKE OF READY REFERENCE. THE SAME ARE AS UNDER:- 5.1 SEARCH AND SEIZURE OPERATIONS WERE UNDERTAKEN UNDER SECTION 132 OF THE ACT IN THE CASE OF SH. B.K. DHINGRA, SMT . POONAM DHINGRA AND M/S MADHUSUDAN BUILDCON PVT. LTD. (HERE AFTER ALSO REFERRED TO AS SEARCHED PERSONS) ON 20TH OCTOBER, 2008. CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE COMPANY AND A C OMPUTER HARD DISK CONTAINING SOFT COPIES OF WORKING PAPERS, BALA NCE SHEETS AND DATA FOR INCOME TAX FILINGS, WERE SEIZED DURING THE SEARCH. THE AO OF THE SEARCHED PERSONS RECORDED A SATISFACTION NO TE ON 8TH SEPTEMBER, 2010 TO THE EFFECT THAT THE DOCUMENTS SE IZED AND THE DATA CONTAINED IN THE HARD DISK BELONGED TO THE ASSESSEE AND, HENCE, M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 8 SECTION 153C WAS INVOKEABLE. ON THE AFORESAID BASIS , PROCEEDINGS WERE INITIATED UNDER SECTION 153C AND A NOTICE DATE D 8TH SEPTEMBER, 2010 FOR THE AYS 2003-04 TO 2008-09 WAS ISSUED TO T HE ASSESSEE. 23. IN THE PRESENT CASE, THE ASSESSEE HAD CLAIMED T HAT THE ASSESSMENTS FOR THE CONCERNED ASSESSMENT YEARS WERE NOT PENDING ON THE DATE OF RECORDING OF SATISFACTION BY THE AO AND, THEREFORE, WOULD NOT ABATE BY VIRTUE OF THE SECOND PROVISO TO SECTION 153A OF THE ACT. FURTHER, THE PERIOD OF SIX YEARS WOULD ALS O HAVE TO BE RECKONED WITH RESPECT TO THE DATE OF RECORDING OF S ATISFACTION NOTE THAT IS, 8TH SEPTEMBER, 2010 AND NOT THE DATE OF SEARCH. 24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVISO TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH UNDE R THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTR UED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE A SSESSEE (BEING THE PERSON OTHER THAN THE ONE SEARCHED) TO THE AO H AVING JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER P ROCEEDINGS, BY VIRTUE OF SECTION 153C(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REFERENCE TO T HE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSES SMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE UNDER SECTION 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WIT H REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE. IN THIS CASE, IT WOULD BE THE DATE OF THE RECORDING OF SATISFACTION UNDER SECTION 153C OF THE ACT, I.E., 8 TH SEPTEMBER, 2010. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF AS SESSMENT YEAR 2003-04 AND 2004-05 WOULD BE BEYOND THE PERIOD OF S IX ASSESSMENT YEARS AS RECKONED WITH REFERENCE TO THE DATE OF REC ORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. IT I S CONTENDED BY THE REVENUE THAT THE RELEVANT SIX ASSESSMENT YEARS WOUL D BE THE ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEAR RELEV ANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. IF THIS INTERPRETATION AS CANVASSED BY THE REVENUE IS ACCEP TED, IT WOULD MEAN THAT WHEREAS IN CASE OF A PERSON SEARCHED, ASS ESSMENTS IN RELATION TO SIX PREVIOUS YEARS PRECEDING THE YEAR I N WHICH THE SEARCH TAKES PLACE CAN BE REOPENED BUT IN CASE OF ANY OTHE R PERSON, WHO IS NOT SEARCHED BUT HIS ASSETS ARE SEIZED FROM THE SEA RCHED PERSON, THE PERIOD FOR WHICH THE ASSESSMENTS COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEARS. THIS IS SO BECAUSE THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS OF A PERSON, OTHER THAN THE SEARCHED PERSON, TO THE AO WOULD BE SUBSEQUENT TO T HE DATE OF THE SEARCH. THIS, IN OUR VIEW, WOULD BE CONTRARY TO THE SCHEME OF SECTION 153C(1) OF THE ACT, WHICH CONSTRUES THE DAT E OF RECEIPT OF ASSETS AND DOCUMENTS BY THE AO OF THE ASSESSEE (OTH ER THAN ONE SEARCHED) AS THE DATE OF THE SEARCH ON THE ASSESSEE . THE RATIONALE APPEARS TO BE THAT WHEREAS IN THE CASE OF A SEARCHE D PERSON THE AO OF THE SEARCHED PERSON ASSUMES POSSESSION OF SEIZED M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 9 ASSETS/DOCUMENTS ON SEARCH OF THE ASSESSEE; THE SEI ZED ASSETS/DOCUMENTS BELONGING TO A PERSON OTHER THAN A SEARCHED PERSON COME INTO POSSESSION OF THE AO OF THAT PERSO N ONLY AFTER THE AO OF THE SEARCHED PERSON IS SATISFIED THAT THE ASS ETS/DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON. THUS, THE DATE O N WHICH THE AO OF THE PERSON OTHER THAN THE ONE SEARCHED ASSUMES T HE POSSESSION OF THE SEIZED ASSETS WOULD BE THE RELEVANT DATE FOR AP PLYING THE PROVISIONS OF SECTION 153A OF THE ACT. WE, THEREFOR E, ACCEPT THE CONTENTION THAT IN ANY VIEW OF THE MATTER, ASSESSME NT FOR AY 2003-04 AND AY 2004-05 WERE OUTSIDE THE SCOPE OF SECTION 15 3C OF THE ACT AND THE AO HAD NO JURISDICTION TO MAKE AN ASSESSMEN T OF THE ASSESSEES INCOME FOR THAT YEAR. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D FORCE IN THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE BECAUSE WE FIND THAT THE JUDGMENT CITED BY THE LEARNED AR OF THE ASSESSEE IS A LATER JUDGMENT BEIN G DATED 30.10.2015 AND THE JUDGMENT CITED BY THE LEARNED DR OF THE REVENUE IS DATED 29.03.2012. THIS JUDGMENT CITED BY THE LEARNED DR OF THE REVENUE HAV ING BEEN RENDERED IN THE CASE OF SSP AVIATION LTD. (SUPRA) WAS CONSIDERED BY HONBLE DELHI HIGH COURT IN THE LATER JUDGMENT RENDERED IN THE CASE OF CIT V S. RRJ SECURITIES LIMITED (SUPRA) ON WHICH, RELIANCE HAS BEEN PLACED BY THE L EARNED AR OF THE ASSESSEE. IN THIS CASE ALSO, THIS CONTENTION WAS RAISED BY TH E REVENUE BEFORE HONBLE DELHI HIGH COURT THAT THE RELEVANT SIX ASSESSMENT Y EARS WOULD BE THE ASSESSMENT YEARS PRIOR TO THE ASSESSMENT YEAR RELEV ANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. BUT THIS WAS HELD B Y HONBLE DELHI HIGH COURT THAT IF THIS INTERPRETATION AS CANVASSED BY THE REV ENUE IS ACCEPTED, IT WOULD MEAN THAT WHEREAS IN THE CASE OF A PERSON SEARCHED, THE REOPENING WILL BE FOR SIX YEARS BEING PRIOR TO YEAR OF SEARCH BUT IN CASE OF THE OTHER PERSON WHO WAS NOT SEARCHED BUT HIS ASSETS WERE SEIZED FROM THE SE ARCHED PERSON, THE PERIOD FOR WHICH THE ASSESSMENT COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEARS FROM THE DATE OF HANDING OVER OF THE A SSETS/DOCUMENTS. 8. IN THE PRESENT CASE, ALTHOUGH THE SEARCH HAS TAK EN PLACE ON 25.10.2010 BUT THE SATISFACTION NOTE WAS RECORDED ON 14.12.2012, (RELE VANT TO A. Y. 2013 14) BY THE AO OF THE ASSESSEE IN HIS CAPACITY OF AO OF THI S ASSESSEE AND NOT IN THE CAPACITY OF THE AO OF THE SEARCHED PERSON ALTHOUGH THE AO IS SAME OF THIS ASSESSEE AND OF THE SEARCHED PERSON AS NOTED BY THE TRIBUNAL IN PARA 7 OF THE M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 10 TRIBUNAL ORDER IN THE CASE OF SHRI GALI JANARDAN RE DDY IN ITA NOS. 1444 TO 1450/BANG/2014 DATED 17.10.2016 AND IN PARA 3 OF TH E TRIBUNAL ORDER IN THE CASE OF SMT. G. LAKSHMI ARUNA IN ITA NOS. 1451 TO 1 457/BANG/2014 DATED 18.10.2016. HENCE, AS PER THIS JUDGMENT OF HONBLE DELHI HIGH COURT, THE RELEVANT SIX YEARS IN THESE TWO CASES FOR SECTION 1 53A/153C ARE A. Y. 2007 08 TO 2012 13. HENCE, THE PRESENT ASSESSMENT YEAR 2011 12 IS ALSO COVERED BY SECTION 153A/153C AND THEREFORE, THERE I S NO APPARENT MISTAKE IN THESE TWO TRIBUNAL ORDERS. 9. REGARDING THIS CONTENTION OF THE LEARNED DR OF T HE REVENUE RAISED IN PARA 14 OF THE WRITTEN SUBMISSIONS REPRODUCED ABOVE THAT THE I SSUE OF THE PERIOD OF SIX ASSESSMENT YEARS FOR THE PURPOSE OF SECTION 153C OF THE ACT IS A FRESH GROUND RAISED BY THE LEARNED AR OF THE ASSESSEE RAISED IN THE COURSE OF HEARING OF THE M. P., WE FIND THAT THIS IS NOT A FRESH GROUND RAIS ED BY THE LEARNED AR OF THE ASSESSEE RAISED IN THE COURSE OF HEARING OF THE M. P. IN FACT, THIS IS THE GROUND RAISED BY THE REVENUE IN THESE M. PS. THAT THE PRES ENT YEAR CANNOT BE A PART OF SIX YEARS COVERED U/S 153C AND IN REPLY THERETO, TH E LEARNED AR OF THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGMENT OF HON BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. RRJ SECURITIES LIMI TED (SUPRA) AND IT WAS CONTENDED THAT AS PER THIS JUDGMENT, THE PRESENT AS SESSMENT YEAR 2011 12 IS ALSO COVERED BY SECTION 153A/153C AND THEREFORE, TH ERE IS NO APPARENT MISTAKE IN THESE TWO TRIBUNAL ORDERS. HENCE, THIS CONTENTI ON IS ALSO NOT RENDERING ANY HELP TO THE REVENUE. 10. IN THE LIGHT OF ABOVE DISCUSSION, WE FIND THAT THERE IS NO MERIT IN THESE TWO M. PS. OF THE REVENUE AND THEREFORE, RESPECTFULLY FOLL OWING THIS JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. RR J SECURITIES LIMITED (SUPRA), WE HOLD THAT THE PRESENT ASSESSMENT YEAR 2 011 12 IS ALSO COVERED BY SECTION 153A/153C IN THE FACTS OF THE PRESENT CA SE AND THEREFORE, THERE IS NO APPARENT MISTAKE IN THESE TWO TRIBUNAL ORDERS. M. P. NOS. 149 & 152/(BANG)2016 (IN ITA NOS. 1450 & 1457/BANG/2014) 11 11. IN THE RESULT, BOTH THE M. PS. OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE D A T E D : 06.03.2018 *MS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.