ITO 2(2)(5), Etawah V. SHRI KAMLESH KUMAR YADAV, Kanpur

MA 4/AGR/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2083 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-05-2024
• Assessment Year: 2007-2008
• Appeal Filed On: 17-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Documents seized
• Section: 132; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER (Applicant) Income-tax Officer, Ward 2(2)(5), Etawah. SHRI P.C. YADAV, JUDICIAL MEMBER 2. M.A. No. 04/Agrl2019 (in ITA No. 86/Agr/2017) Assessment Year: 2007-08 Revenue by Assessee by AND Date of hearing PER P.C. YADAV, JM: versuS Date of pronouncement: ORDER Shri Kamlesh Kumar Yadav, Income Tax Housing Society, Vinayakpur, Kanpur-209024. PAN:AFWPY3086M (Respondent) Sh. Anubhav Singh, Sr. DR None 03.05.2024 The present Miscellaneous Application filed by the Revenue is arising from the order of Hon'ble Income Tax Appellate Tribunal dated 31.08.2018 rendered in ITA No. 86/Agr/2018 for the assessment year 2007-08. Learned DR has contended that there is a mistake in the order of ITAT dated 31.08.2018, inasmuch as, the Coordinate Bench has erred in affirming the view of Ld. CIT(Appeals), holding that in the present case, the Assessing Officer has wrongly invoked the provisions of section 147 of the Income Tax Act instead of section 153C of the Act. The main contention of the Revenue in the present Miscellaneous Application is that the ITAT has overlooked the fact that in this case during the course of search, no incriminating material "belongs or belong to" the assessee has been found during the cOurse of search and hence, the Assessing Officer has correctly invoked the provisions of section 147 of the Act and the ITAT has failed to appreciate the expression "belong to" as used in the then provisions of section 153C of the Income Tax Act. 3. Learned Sr. DR in support of his arguments has relied upon the decision in the case of Pepsico India Holdings vs. PCIT, (2014) SSC Online-Del-4155 / 370 ITR 295 (Del), delivered by Hon'ble Delhi High argued that unless incriminating material actually belonging to the third party is found during the course of search, provisions of section 153C cannot be invoked. The Ld. Sr. DR also places reliance on the judgment of Hon'ble Delhi High Court in the case of CIT vs. Renu Construction, 399 ITR 262 for the same M.A. No. 04/Agr/2019 Court and proposition. Ld. Sr. DR also pointed out that the SLP of the Revenue in the cases of Pepsico India Holdings (supra) and Renu Construction (supra) have been dismissed by the Hon'ble Apex Court. 4. Even after the service of notice, nobody has appeared on behalf of the assessee. However, since the matter is very old, we deem it appropriate to decide the present miscellaneous application in accordance with law. M.A. No. 04/Agr/2019 5 After considering the arguments of the ld. Sr. DR and the material on record and the order of the ITAT, We are of the firm view that there is no mistake in the order of the ITAT for the following reasons: (a). As evident from the reasons recorded, extracted by the ITAT in original order, it is abundantly clear that the material on the basis of which the reasons are recorded was found in search and related to the assessee. (b). Section 153C when inserted in the Statute in 2003 was worded as under: 453C.- Assessment of income of any other person. Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the 6. M.A. No. 04/Agr/2019 Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned, belongs or belong to a person other than the person referred to in Section 153-A, then, the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Oficer having jurisdiction over such other person and that Assessing Officer shall proceed against each other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A." 7. By Finance Act, 2015, the legislature has amended the provision of section 153C and mandated as under : 153C.Assessment of income of any other person. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that, (a) any money, bullion, jewellery or other valuable 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 information contained therein, relates to," When we read provisions of section 153C(b) then it is clear that under the amended provisions, there are two ingredients of Clause (b) of sec. 153C - (a) 153C can be invoked where any books of account or documents seized or requisitioned pertaining to a third person has been found; and, second ingredient provides that 153C can be invoked where any information contained in any books of M.A. No. 04/Agr/2019 account or document seized relating to 3 party is unearthed during the course of search. In the case of Pepsico India Holdings (supra), relied on by Ld. DR, Hon'ble Delhi High Court considering the un-amended provisions of section 153C, as extracted above, has held that unless the material found in search belonged to the third person, the Revenue cannot trigger the provisions of section 153C of the Act. Thereafter, so many High Courts have followed the same view. Then the Legislature has amended the provisions of section 153C reproduced above and the Legislature has replaced the expressions "belongs to" with the expressions "pertains to" or "relates to". 9. Recently, Hon'ble Apex Court has interpreted the newly inserted provisions with respect to the applicability of these provisions even prior to the searches conducted on or before 01.06.2015. In simply words, Hon'ble Apex Court in the case of ITO vs. Vikram Sujit Kumar Bhatia (Civil Appeal No. 911 of 2022- SLP (C) No. 29096 of 2019) has decided whether newly inserted provision of section 153C are retrospective or prospective. After considering the entire law and also the decision of Hon'ble Delhi High Court in Pepsico India M.A. No. 04/Agr/2019 Holdings (supra) Hon'ble Apex Court has held that the provisions of newly inserted section 153C are retrospective and hence, the concept of belongs to or belong to a person is no more a good law. Hon'ble Apex Court in para 39 has observed as under: "39. As observed hereinabove, in the pre-amended Section 153C, the words used were "belongs or belong to' a person other than the searched person. In the case of Pepsico lndia Holdings Private Limited (supra), the Delhi High Court interpreted the expression "belong to" and observed and held that there is a difference and distinction between "belong to" and "pertain to". It was observed and held that on the basis of the registered sale deed seized from the premises of the searched person, it cannot be said that it "belongs to" the vendor. Therefore, the High Court view gave a very narrow and restrictive meaning to the expression / word "belongs to and held that the ingredients of Section 153C have not been satisfied. To remove the basis of the observation made by the Delhi High Court in the case of Pepsico India Holdings Private Limited (supra), now, Section 153C came to be amended w.e.f. 01.06.2015 by substituting the words "belongs or belong to" with the words "pertains or pertain to' insofar as the books of account and documents are concerned. Thus, having found that the observation made by the Delhi High Court in the case of Pepsico India Holdings a situation where, though Private Limited (supra) led to incriminating material pertaining to third party was found during the search proceedings under Section 132, the Revenue could not proceed against the third parties, it was observed that the said observation made by the Delhi High Court in the aforesaid decision was coming in the way of suppressing the very mischief which the suppress, which necessitated the legislature intended to amendment in Section 153C. Thus, it is a case of substitution of the words by way of amendment." 40. 41. 6 42. As observed hereinabove, Section 153C has been amended by way of substitution whereby the words "belongs or belong to have been substituted by the words "pertains or pertain to". As observed and held by this Court in the case of Shamrao v. Parulekar (supra) that amendment by substitution has the effect of M.A. No. 04/Agr/2019 wiping the earlier provision from the statute book and replacing it with the amended provision as if the unamended provision never existed. In the subsequent decision in the case of Zile Singh (supra), it is observed in paras 24 and 25 as under: 24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. "Substitution has to be distinguished from supersession" or a mere repeal of an existing provision. 25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC 645], State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 601, Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael [AIR 1963 SC 933]. In West U.P. Sugar Mills Assn. case [(2002) 2 SCC 645] a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case [(1996) 5 SCC 60] this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case [(1969) 1 SCC 255] a three Judge Bench of this Court emphasised the distinction between "supersession of a rule and "substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place." 10. At last, Hon'ble Apex Court has held that amended provisions of section 153C are retrospective. M.A. No. O04/Agr/2019 11. In view of the above recent development of law as propounded by Hon'ble Apex Court in the case of Vikram Sujit Kumar Bhatia (supra), which is binding on every Court of India in terms of Article 141, we are of the firm view that ITAT in the present case has rightly held that the provisions of section 153C ought to have been invoked by the Assessing Officer instead of 147 and hence, all the arguments of the ld. Sr. DR, as narrated above, are not acceptable. 12. Apart from the above, it is worthwhile to mention here that only those mistakes, which are apparent from the record, are rectifiable under the provisions of section 254(2) of the IT Act. Such mistakes, which require reappraisal of facts or law under long-drawn process of arquments and detailed discussion on the debatable issue are not rectifiable under these provisions of the Act. Reference can be made to the decision of CIT Vs. Vardhman Spinning (1997) 226 ITR 296 (Punjab) and CIT Vs. Model Mig. Co. (P) Ltd. 111 CTR-216 (Calcutta). 13. In the result, Miscellaneous Application filed by the Revenue is dismissed. (RAMIT KOCHAR) ACCOUNTANT MEMBER Dated: 13.05.2024 *aks/ Copy forwarded to: Appellant Respondent 1. 2 Order pronounced in the open court on 13" May, 2024. 3 5 CIT CIT(Appeals) DR: ITAT Draft dictated Draft placed before author Approved Draft comes to the Sr.PS/PS Order signed and pronounced on Date of uploading on the website File sent to the Bench Clerk Date on which file goes to the AR M.A. No. 04/Agr/2019 9 Date on which file goes to the Head Clerk. Date of dispatch of Order. Sd/ (P.C. YADAV) JUDICIAL MEMBER Assistant Registrar ITAT Agra 03.05.2024 06.05.2024 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 Concurring Order Having gone through the order of my ld. Brother Judicial Member, I most respectfully agree and concur with the conclusion of my ld. Brother, JM in dismissing the MA filed by the Revenue, but I am giving my own reasons vide this order, while dismissing the MA filed by the Revenue. My ld. Brother has held that the ITAT has rightly held in present case that the provisions of Section 153C ought to have been invoked by the Assessing Officer instead of Section 147. My ld. Brother, JM heavily relied upon the judgment and order of Hon'ble Apex Court in the case of Vikram Sujit Singh Bhatia in Civil Appeal No. 911 of 2022-SLP(C) No. 29096 of 2019 while arriving at the aforesaid decision in dismissing the MA filed by Revenue, wherein in Vikram Sujit Singh Bhatia(supra) ,Hon'ble Supreme Court has held that provisions of newly inserted Section 153C are retrospective in nature. Before proceeding further, it will be pertinent to mention that there was amendment in Section 153C by Finance Act, 2015 w.e.f. 01.06.2015, which my learned Brother has reproduced in para 5 and 6 of his order, and the same are not repeated. The Hon'ble Supreme Court has specifically referred to in the judgment and order in the case of Vikram Sujit Singh Bhatia(supra), that the search took place in that case u/s 132 on the searched person on 04.09.2013 i.e. prior to amendment in Section 153C by Finance Act, 2015, while when the satisfaction was recorded by the AO of the searched person on 25.04.2017 as wellI by the AO of the respondent i.e. non searched person on 04.05.2018, Section 153C as amended by Finance Act, 2015 w.e.f. 01.06.2015 was in force and became applicable. Section 153C came to be amended by Finance Act,2015 w.e.f. 01.06.2015 and the words "belongs or belong to" came to be substituted by the words "pertains or pertain to". In 1 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 the judgment and order of Hon'ble Supreme Court in the case of Vikram Sujit Kumar Bhatia(supra), Hon'ble Supreme Court has clearly stated that in light of aforesaid facts, the question of law, which arises for consideration of this Court is " Whether amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of amendment " is required to be considered.The Relevant para's of the judgment and order of Hon'ble Supreme Court is reproduced hereunder: length. "6. We have heard the learned counsel appearing on behalf of the respective parties at 7. The guestion of law that arises for consideration of this Court is: "Whether the amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before O1.06.2015, i.e., the date of amendment?" 8. While considering the aforesaid question and the submissions made on behalf of the respective parties, a few facts, which are necessary for determination of the question are required to be referred to, which are as under: (i) That a search under Section 132 of the Act, 1961 was conducted at the various premises of one H.N. Safal Group on 04.09.2013. When the search came to be conducted, Section 153C as it stood then (pre amendment 2015) was applicable. (ii) Section 153C as it stood then provided that "Notwithstanding anything contained in Sections 139, 147, 148, 149, 151 and 153, where the Assessing officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned "belongs or belong to" a person other than the person referred to in Section 153-A, then, the books of account or documents or assets seized or requisitioned shall be 2 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and issue such other person notice and aSsess or reassesS income of such other person in accordance with the provisions of Section 153A. It also further provided that in case of such other person, the reference to the date of initiation of the search under Section 132 or making of requisition under Section 132-A in the second proviso to sub-section (1) of Section 153-A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person. (ii) During the course of search, various incriminating material / documents were found and seized. Upon verification of such seized material, it was noticed that certain documents pertained/ related to the respondent herein, who is other than the searched person. Accordingly, satisfaction to that extent was recorded by the Assessing officer of the searched person with respect to the respondents - assessees (other than the searched person) on 25.04.2017. That the said satisfaction note alongwith the incriminating material was forwarded to the Assessing Officer of the non-searched person on 25.04.2017. That, thereafter, the Assessing Officer of the respondents -assessees (non searched persons) after verifying the seized material, found certain incriminating material against them and the cash entries, which were not declared in the original return filed. Accordingly, the Assessing Officer of the respondents recorded his independent satisfaction and issued notice under Section 153C on 04.05.2018. (iv) At this stage, it is required to be noted that in the meantime, Section 153C came to be amended by Finance Act, 2015 w.e.f. 01.06.2015 and the words "belongs or belong to" came to be substituted by the words "pertains or pertain to". (v) Thus, at the time when the satisfaction note came to be recorded by the Assessing oficer of the searched person on 25.04,2017 as well as by the ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 assessees (non-searched persons) on Assessing Officer of the respondents 04.05.2018, Section 153C (as amended by Finance Act, 2015 w.e.f. 01.06.2015) became applicable. The notice under Section 153C against the non-searched persons on the basis of the material seized during the search conducted at the various premises of H.N. Safal Group (searched person) and the assessment orders were the subject matter of appeal before the High Court. 9. In light of the aforesaid facts, the question of law, which arises for consideration of this Court is, "Whether amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i. e., the date of amendment", is required to be considered. 10. While considering the aforesaid question, the reason and the object and purpose of the amendment to Section 153C introduced vide Finance Act, 2015 w.e.f. 01.06.2015 is required to be considered." (Emphasis supplied by me) As could be seen that the Hon'ble Supreme Court was conscious of the fact that they are answering the question of law based on the fact that whether amended provisions of Section 153C shall be applicable to searches conducted prior to 01.06.2015 wherein satisfaction was recorded by the AO of the searched person as well of the AO of the person other than the searched person to whom the information therein pertains, after the document, books of accounts amendment to Section 153C came into force i.e. 01.06.2015 and the notices u/s 153C were issued post amendment w.e.f. 01.06.2015 when the amended law carne into force. This is clearly a distinguishing feature in the instant case before us, as the searches u/s 132(1) were conducted by Revenue on 27.06.2013 in the case of Santosh Medical College which was prior to amendment in Section 153C by Finance Act, 2015 wW.e.f. 01.06.2015. Information was passed on by Dy 4 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 Director of Income Tax(Inv)-V(1), New Delhi on 19.03.2014 regarding donation/capitation fee paid over and above the regular course fees to Santosh Medical College, Ghaziabad for A.Y. -2007-08 by Shri Kamlesh Kumar Yadav for MBBS Course w.r.t. his daughter on 03.03.2006 amounting to Rs. 21,00,000/- . During search and seizure operations conducted by Revenue u/s 132 on 27.06.2013 in the case of Santosh Medical College, Ghaziabad certain books of accounts/documents were seized from the main administrative block of the College. From the receipts it was revealed that the Institution was charging donation/capitation fees over and above the regular course fees from the students. When the same was confronted to the Chairman of the trust Dr. P. Mahalingam, he had categorically admitted of accepting the donation/ capitation fees in cash and offered the unaccounted money so received for taxation in the relevant year. Thus, it became clear to Revenue in their view that the fees paid in cash by the assessee was the unaccounted money in the hands of the assessee. Notice u/s 148 dated 27.03.2014 was issued by the AO after taking statutory approvals. Thus, the notice u/s 148 of the 1961 Act was issued prior to the amendment made by Finance Act, 2015 in Section 153C w.e.f. 01.06.2015. The reassessment order u/s 147 read with Section 143(3) was passed by the AO on 18.03.2015, which is again prior to the amendment made by Finance Act, 2015 w.e.f 01.06.2015. It is well settled that material found during search can always be used in proceedings u/s. 147/148 of the 1961 Act against the person whose income has escaped assessment. In the instant case, during search proceedings u/s 132 against Santosh Medical College, the account ledger of Santosh Medical Trust revealed that the assessee had agreed for payment of Rs. 35,00,000/-out of which Rs. 10,01,944/-were paid through cheque/DD and rest amount of Rs. 25,00,000/-on which signatures of his 5 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 daughters are available, was paid in cash. The reassessment proceedings were concluded on 27.03.2015 i.e. Prior to amendment in Section 153C. In the instant case the incriminating material which was found from the person searched were in the form of student register in which there were allegedly some entries related to cash payment of Rs. 25,00,000/- made by the assessee at the time of admission in MBBS course in Financial Year 2006-07 of Ms. Deepti Yadav D/0 Mr. Kamlesh Kumar Yadav. Based on seizure of aforesaid document from the the reassessment person searched namely Santosh Medical College proceedings u/s 148 were initiated against the assessee. This documents belonged to the person searched wherein alleged entries containing information about alleged undisclosed cash payments to the tune of Rs. 25,00,000/- in the aforesaid documents pertain to the assessee. It is well settled that incriminating material seized during the search can be used by Revenue even if the search is declared invalid. The Hon'ble Supreme Court has itself noted in the judgment and order in the case of Vikram Sujitkumar Bhatia(supra) that they are deciding the matter keeping in view the fact situation that search were conducted prior to amendment made by Finance Act, 2015 in Section 153C effective from 01.06.2015, but the satisfaction was recorded by the AO after the amendment in Section 153C and also that notice u/s 153C was issued after the amendment in Section 153C effective from 01.06.2015. While adjudicating SLP in the case of Vikram Sujitkumar Bhatia(supra), Hon'ble Supreme Court observed that the Hon'ble Delhi High Court in the case of Pepsico India Holding Private Limited(Supra) interpreted the words "belong to" restrictively and /or narrowly and which led to a situation where, though incriminating material pertaining to a third party/person was found during search proceedings u/s 132 the Revenue could not proceed against such a third party, which necessitated the 6 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 legislature/Parliament to clarify by "substituting" the words "belongs or belong to" to the words "pertains or pertains to" and to remedy the mischief that was noted pursuant to the judgment of Delhi High Court. The Hon'ble Supreme Court observed in Vikram Sujit Kumar(supra) that amendment by substitution has the effect of wiping the earlier provision from the statute book and replacing it with the amended provision as if the unamended provision never existed. The Hon'ble Supreme Court observed that Section 153C is a machinery provision, and the courts would interpret a provision in sucha way that it would give meaning to the charging provisions and that the machinery provisions are liberally construed. The Hon'ble Supreme Court observed that even unamended provision Section 153C pertains to the assessment of income of any other person. The object and purpose of Section 153C is to address the persons other than the searched person. Even as per unamended Section 153C, the proceedings against other persons(other than the searched person) was on the basis of the seizure of books of accounts or documents seized or requisitioned "belongs or belong to" a person other than the searched person. The Hon'ble Supreme Court observed that if the submissions on behalf of the assessee that despite the fact that the incriminating materials have been found in the form of books of account or documents or assets relating to the persons other than searched from the premises of the searched persons, still then may not be subjected to the proceedings u/s 153C solely on the ground that the search was conducted prior to amendment, is accepted, in that case the very object and purpose of the amendment to Section 153C, which is by way of substitution of the words "belongs or belong to" to the words "pertains or pertain to" shall be frustrated. Hon'ble Supreme Court observed that as observed hereinabove, any interpretation, which may frustrate the very object and purpose of the 7 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 Act/Statutes shall be avoided by the Cout. The Hon'ble Supreme Court further observed that if the interpretation as canvassed on behalf of the assessee is accepted, in that case, even the object and purpose of Section 153C namely, for assessment of income of any other person (other than the searched person) shall be frustrated. The Hon'ble Supreme Court held that the amendment brought to Section 153C vide Finance Act, 2015 would be applicable to searches conducted u/s 132, before 01.06.2015. i.e. the date of amendment. The facts before Hon'ble Supreme Court in the aforesaid case of Vikram Sujitkumar Bhatia(supra)were that the searches were conducted u/s 132 prior to the amendment in Section 153C w.e.f. 01.06.2015, while satisfaction note were recorded by the AO and notices u/s 153C were issued by the AO in the case of persons other than searched person after the amendment to Section 153C by Finance Act, 2015 came into force w.e.f. 01.06.2015. While in the instant case before us, the searches were conducted by Revenue in the case of searched person u/s 132 prior to amendmnent in Section 153C by Finance ACt, 2015 w.e.f. 01.06.2015, reasons were recorded by the AO u/s 147 prior to amendment in Section 153C as well notices were issued by A0 u/s 148 prior to aforesaid amendment as also reassessment u/s 147/148 were concluded prior to amendment in Section 153C by Finance Act, 2015 effective from 01.06.2015. In this case the incriminating material found during searches conducted by Revenue in the case of Santosh Medical College is by way of seizure of the account ledger of Santosh Medical Trust which revealed that the assessee had agreed for payment of Rs. 35,00,000/- out of which Rs. 10,01,944/- were paid through cheque/DD, and rest amount of Rs. 25,00,000/- on which signatures of his daughters are available was paid in cash. There was no documents 8 belonging to the assessee which was seized during searches conducted by ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 Revenue on Santosh Medical College, but however, the document belonged to in which there was Santosh Medical trust by way of student register incriminating information pertaining to the assessee having paid fee in cash of Rs. 25,00,000/-towards admission fee for MBBS course being persued by daughter of the assessee over and above regular fee. This issue whether w.r.t. searched conducted prior to 01.06.2015 when no document, books of accounts etc. belonging to a person other than the searched person were found and seized from the person searched, and where the documents, books of accounts etc. found and seized from the person searched carries the incriminating information pertaining to person other than person searched and the reasons u/s 147 were recorded prior to amendment in Section 153C, notices u/s 148 have been issued prior to amendment in Section 153C by Finance Act, 2015 w.e.f. 01.06.2015 and reassessment concluded prior to aforesaid amendment, the question in the light of above differentiating facts has not been decided by Hon'ble Supreme Court in Vikram Sujitkumar Bhatia(supra) and it is also not specified by Hon'ble Supreme Court as to whether all such concluded reassessments prior to amendment in Section 153C by Finance Act, 2015 w.e.f 01.06.2015 shall stand quashed/nullified or are saved wherein no books of accounts, documents, assets belong to person other than searched persons were found during search conducted by Revenue on searched person and only incriminating information as to person other than searched persons were found during searched conducted on the searched perons, as the facts before Hon'ble Supreme Court in Vikram Sujitkumar Bhatia(supra)were there where although searches were conducted by Revenue u/s 132 prior to amendment while satisfaction note was prepared by A0 as well notices u/s 153C were issued by the AO after the aforesaid amendment to Section 153C by Finance Act, 2015 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 W.e.f. 01.06.2015. The adjudication of this issue whether all the reassessments concluded by Revenue wherein reasons were recorded u/s 147 in the case of persons wherein incrimination information pertaining to person other than searched person were found from the premises of the searched person, prior to amendment in Section 153C, notices u/s 148 were issued prior to amendment in Section 153C as well reassessment were concluded prior to aforesaid amendment may require detailed hearing on the matter. We are presently in MA proceedings where the scope of interference u/s 254(2) is very limited to mistakes apparent on records, and presently we are not hearing an Income Tax Appeal. There is no power vested with tribunal to review its own order within the limited scope u/s 254(2). Thus, I am refraining to give my decision on this issue. However, I am in agreement with my ld. Brother, JM vide in para 12 of his order that only those mistakes which are apparent from records can be covered u/s 254(2) of the Act, and Section 254(2) did not give power to ITAT to review its own decision. The Tribunal has given its decision in CO No. 07/Agra/2017 arising in ITA No. 86/Agra/2017 dated 31.08.2018 vide order passed u/s 254(1) that in the instant case reasons recorded by the AO u/s 147 of the 1961 Act and all proceedings pursuant thereto, culminating in the order under appeal, are quashed. The Tribunal has held that the AO ought to have invoked provisions Section 153C in the instant case, and not the reassessment provisions u/s 147/148.The Tribunal followed the decision of SMC Bench of ITAT, Delhi in ITA No. 1500 & 1501/Del/2017 in Sushil Gaur and Shelly Agarwalv. ITO , Vide order dated 08.08.2017 to arrive at its aforesaid decision. The Tribunal noted that Sushi Gaur(supra) relied upon ACIT v. Arun Kapur, 140 TTJ 249(Asr) and Rajat Shubra Chatterji v. ACIT, order dated 20.05.2016, passed by the Delhi ITAT, in ITA No. 2430/Del/2015. The Tribunal specifically held that the decision relied 10 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 upon by ld. DR in the case of Hon'ble Supreme Court judgment and order dated 29.08.2017 in Civil Appeal No. 11080 of 2017 in CIT v. Sinhgad Technical Education Society as well Judgment and order of Hon'ble Karnataka High Court in the case of Gudwill Housing Limited v. ITO, 45 taxmann.com 144(Kar.), ACIT V. Shri Vidit Kumar Agarwal, 26 taxmann.com 185 Agra and Honda Motors Private Limitedv. ACIT dated 20.07.2016 passed by Hon'ble Allahabad High Court does not deal with the issue at hand. Thus, the Tribunal has passed a detailed and well reasoned order. Presently, we are in MA proceedings. The scope u/s 254(2) is limited. In the instant case, the Revenue is not remedyless. The Revenue, if aggrieved by the order of the Tribunal u/s 254(1), has other remedy of filing an appeal with Hon'ble jurisdictional High Court u/s 260A. In the instant case, ITAT vide order dated 31.08.2018 has taken a decision to quash reasons recorded u/s 147 and all the proceedings pursuant thereto , culminating in the order under appeal, after detailed deliberation and reasoning by following the earlier orders of the Tribunal. The said order passed by ITAT dated 31.08.2018 is challengeable before Hon'ble High Court u/s 260A, while scope u/s 254(2) is limited to mistake apparent from record and it does not give power to ITAT to review its own order within limited scope of Section 254(2). Thus, There is no mistake apparent from record in the order passed by the Tribunal in ITA dated 31.08.2018. Thus, I concur with my ld. Brother, JM that MA of Revenue needs to be dismissed, for the reasons recorded in this order. I order accordingly. Sd/ (Ramit Kochar) 27.05.2024 AM, ITAT, Agra Bench Agra 11 Both orders are pronounced in open court on 30.05.2024. Order of JM dated 13.05.2024 & order of Hon'ble AM dated 27.05.2024 are pronounced in open court on 30.05.2024. Sd/-30.05.24 ITO 2(2)(5), Etawah v. Kamlesh Kumar Yadav MA No. 04/Agr/2019 Arising out of ITA No. 86/Agra/2017 Assessment Year: 2007-08 (RAMIT KOCHAR) Accountant Member Sd/-30.05.2024 (P.C. YADAV) Judicial Member 12