M/s. Moidu's Medicare Private Ltd(National hospital), Calicut V. The DCIT, Calicut

MA 72/COCH/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9572 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-09-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 19-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Charitable institution; Period of limitation; Additional evidence; Question of law; Block assessment; Documents seized; Set aside
• Section: 142(1); 133A; 153A; 254(2); 148; 132; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJAR I, AM & SHRI GEORGE GEORGE K, JM M A NO. 67 / COCH/201 9 : ASST.YEAR 2006 - 2007 (ARISING OUT OF ITA NO.62/COCH/2016) M A NO. 68/ COCH/201 9 : ASST.YEAR 2007 - 2008 (ARISING OUT OF ITA NO.63/COCH/2016) M A NO. 6 9 / COCH/201 9 : ASST.YEAR 200 8 - 200 9 (ARISING OUT OF ITA NO.6 4 /COCH/2016) M A NO. 70 / COCH/201 9 : ASST.YEAR 200 9 - 20 1 0 (ARISING OUT OF ITA NO.6 5 /COCH/2016) M A NO. 7 1 / COCH/201 9 : ASST.YEAR 20 10 - 20 11 (ARISING OUT OF ITA NO.6 6 /COCH/2016) M A NO. 72 / COCH/201 9 : ASST.YEAR 20 11 - 20 12 (ARISING OUT OF ITA NO.67 /COCH/2016) M A NO. 7 3 / COCH/201 9 : ASST.YEAR 2012 - 20 13 (ARISING OUT OF ITA NO.68 /COCH/2016) M/S.MOIDUS MEDICARE PRIVATE LIMITED, INDIRA GANDHI ROAD, KOZHIKODE PAN : AABCM5655P . VS. THE DY.COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 2 KOZHIKODE. ( APPLICANT ) (RESPONDENT) APPLICANT BY : SRI.SURENDRANATH RAO RESPONDENT BY : --- NONE --- DATE OF HEARING : 06.09 .2019 DATE OF PRONOUNCEMENT : 20 .09.2019 O R D E R PER CHANDRA POOJARI, AM : THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE U/S 254(2)OF THE I.T.ACT, AGAINST THE COMMON ORDER OF THE TRIBUNAL DATED 10.04.2019 ON THE ACTION OF THE TRIBUNAL IN REFUSING TO ADMIT ADDITIONAL GROUND FILED BEFORE IT. M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 2 2. THE FACTS OF THE CASE AR E THAT T HE ASSESSEE IN THESE CASES, CAME IN APPEALS BEFORE THE TRIBUNAL , FILED COMMON ADDITIONAL GROUND FOR THE IMPUGNED ASSESSMENT YEARS AS FOLLOWS: - THE ASSESSING OFFICER SHOULD HAVE APPRECIATED THAT IT IS MANDATORY TO RECORD THE SATISFACTION IN THE CASE OF ASSESSMENT OF A CONNECTED PERSON U/S. 153C. HE SHOULD HAVE KNOWN THAT, NO INCRIMINATING DOCUMENTS OR ANY MONEY BULLION, JEWELLERY OR VALUABLE ARTICLE OR THINGS OR BOOKS OF ACCOUNTS OR DOCUMENTS BELONGING TO THE APPELLANT FOR THE ASSESSMENT YEAR WAS SEIZED OR REQUISITIONED. HE SHOULD HAVE APPRECIATED THAT NOTHING HAS BEEN BROUGHT ON RECORD BY THE A O AND NO REFERENCE HAS BEEN MADE TO SUCH MATERIAL RELATING TO THE APPELLANT FOR THE ASSESSMENT YEAR BEING UNEARTHED. IN THE ABSENCE OF ANY INCRIMINATING EV IDENCE OR ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THINGS ETC. THE ASSESSMENT U/S. 153A R.W.S. 153C IS NOT VALID 3. THE TRIBUNAL VIDE ITS COMMON ORDER DATED 10.04.2019 DISPOSED OF THE APPEALS BY OBSERVING AS UNDER: - 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN THIS CASE, HERE WAS A SURVEY U/S. 133A OF THE ACT ON 31/10/2011 IN THE CASE OF M/S. KUNHITHARUVAI MEMORIAL CHARITABLE TRUST, CALICUT. THE SEARCH REVEALED THAT THE ASSESSEE WAS RECEIVING TRAINING CHARGES FO R COLLEGE OF NURSING WHICH IS AN INSTITUTION UNDER KMCT. A NOTICE U/S. 153A(A) R.W.S. 153C WAS ISSUED TO THE ASSESSEE FOR A.Y. 2006 - 07 TO 2011 - 12 ON 31/05/2012 AND NOTICE U/S. 142(1) DATED 08/08/2012 WAS ISSUED FOR A.Y. 2012 - 13 FOR FURNISHING THE RETURN OF INCOME. NOTICES WERE ISSUED TO THE ASSESSEE ON 05/06/2012 AND 14/08/2012 RESPECTIVELY. THE ASSESSEE VIDE LETTER DATED 09/07/2012 INFORMED THAT THEY COULD NOT FINALIZE THEIR ACCOUNTS FOR THE PREVIOUS YEAR ENDED 31/03/2006 TILL NOW AND REQUESTED FOR AN EXTE NSION OF TIME FOR FURNISHING THE RETURN OF INCOME TILL 16TH AUGUST 2012. 8.1 A REMINDER WAS ISSUED TO THE ASSESSEE ON 19/09/2012 AND 24/09/2012 DUE TO NON - COMPLIANCE OF THE NOTICE U/S. 153A(A) OF THE ACT. HOWEVER, THE ASSESSEE ONCE AGAIN REQUESTED FOR TI ME TO FILE THE RETURN OF INCOME UPTO 30/11/2012. FINALLY, THE ASSESSEE FILED THE RETURN OF INCOME ON 06/12/2012. 8.1.1 NOW, IN ORDER TO UNDERSTAND THE SCHEME OF FRAMING THE ASSESSMENT IN THE CASE OF SEARCH CONDUCTED U/S. 132 OF THE ACT AND DOCUMENTS REQU ISITIONED U/S. 132A OF THE ACT, WE HAVE TO EXAMINE THE PROVISIONS OF M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 3 SECTION 153A TO 153D OF THE ACT BROUGHT ON STATUTE BY THE FINANCE ACT, 2003 W.E.F. 1.6.2003. THESE PROVISIONS HAVE REPLACED THE EARLIER PROVISIONS RELATING TO SPECIAL PROCEDURE FOR ASSESS MENT OF SEARCH CASES IN SECTION 158B TO 158BI OF THE ACT. IN THE INSTANT CASE, THE ACTION WAS TAKEN IN THE HANDS OF THE ASSESSEE U/S. 153C R.W.S. 153A OF THE ACT CONSEQUENT TO THE SEARCH CONDUCTED U/S. 132 OF THE ACT. THEREFORE, PROVISIONS OF SECTION 153C STAND APPLICABLE IN THE CASE OF PRESENT ASSESSEE TO FRAME THE ASSESSMENT. FOR THE SAKE REFERENCE, WE PREFER TO REPRODUCE SECTION 153A TO 153C OF THE ACT HEREUNDER: '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 OFFICER S HALL (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 PRESCRIBE D FORM AND 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, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED 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 WITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING W ITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS [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 : PROVIDED ALSO THAT THE CENTRAL GOV ERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. (2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB - SECTION (1) HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR W HICH HAS ABATED UNDER THE SECOND PROVISO TO SUB - SECTION (1), SHALL M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 4 STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE. EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. 153B. (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 WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B) OF 53[SUB - SECTION (1) OF] SECTION 153A, WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FIN ANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH 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 REQ UISITION 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 : PROVIDED THAT IN CASE OF OTHER PERSON REFERRED TO IN SECTION 153C, THE PERIOD OF LIMITATION FOR MAKING THE ASSESSMENT OR REASSESSMENT SHALL BE THE PERIOD AS REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF THIS SUB - SECTION OR ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH BOOKS OF ACCOU NT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED ARE HANDED OVER UNDER SECTION 153C TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON, WHICHEVER IS LATER: PROVIDED FURTHER THAT IN THE CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARC H UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED DURING THE FINANCIAL YEAR COMMENCING [ON OR AFTER THE 1ST DAY OF APRIL, 2004 BUT BEFORE THE 1ST DAY OF APRIL, 2010], (I) THE PROVISIONS OF CLAUSE (A) OR CLAUSE (B) OF THIS SUBSECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'TWO YEARS' THE WORDS 'TWENTY - ONE MONTHS' HAD BEEN SUBSTITUTED; (II) THE PERIOD OF LIMITATION FOR MAKING THE ASSESSMENT OR REASSESSMENT IN CASE OF OTHER PERSON REFERRED TO IN SECTION 153C, SHALL BE THE PERIOD OF TWENTY - ONE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDE R SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED OR NINE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 5 REQUISITIONED ARE HANDED OVER UNDER SECTION 153C TO THE ASSESSING OFFICER HAVING J URISDICTION OVER SUCH OTHER PERSON, WHICHEVER IS LATER: PROVIDED ALSO THAT IN CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED DURING THE FINANCIAL YEAR COMMENCING [ON OR AFTER THE 1ST DAY OF APRIL, 2005 BUT BEFORE THE 1ST DAY OF APRIL, 2009] AND DURING THE COURSE OF THE PROCEEDINGS FOR THE ASSESSMENT OR REASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB - SECTION (1) OF SECTION 92CA (I) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BU T AN ORDER UNDER SUB - SECTION (3) OF SECTION 92CA HAS NOT BEEN MADE BEFORE SUCH DATE; OR (II) IS MADE ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE PROVISIONS OF CLAUSE (A) OR CLAUSE (B) OF THIS SUB - SECTION SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I) OF THE SECOND PROVISO, HAVE EFFECT AS IF FOR THE WORDS 'TWO YEARS', THE WORDS 'THIRTY - THREE MONTHS' HAD BEEN SUBSTITUTED: PROVIDED ALSO THAT IN CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 1 32A WAS EXECUTED DURING THE FINANCIAL YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2009 OR ANY SUBSEQUENT FINANCIAL YEAR AND DURING THE COURSE OF THE PROCEEDING FOR THE ASSESSMENT OR REASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB - SECTION (1) OF SECTION 92 CA IS MADE, THE PROVISIONS OF CLAUSE (A) OR CLAUSE (B) OF THIS SUB - SECTION, SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I) OF THE SECOND PROVISO, HAVE EFFECT AS IF FOR THE WORDS 'TWO YEARS', THE WORDS 'THREE YEARS' HAD BEEN SUBSTITUTED: PROVIDED ALSO THAT IN CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED DURING THE FINANCIAL YEAR COMMENCING [ON OR AFTER THE 1ST DAY OF APRIL, 2005 BUT BEFORE THE 1ST DAY OF APRIL, 2009] AND DURING THE COURSE OF THE PROCEEDINGS FOR THE ASSESSMENT OR REASSESSMENT OF TOTAL INCOME IN CASE OF OTHER PERSON REFERRED TO IN SECTION 153C, A REFERENCE UNDER SUB - SECTION (1) OF SECTION 92CA (I) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BUT AN ORDER UND ER SUB - SECTION (3) OF SECTION 92CA HAS NOT BEEN MADE BEFORE SUCH DATE; OR (II) IS MADE ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE PERIOD OF LIMITATION FOR MAKING THE ASSESSMENT OR REASSESSMENT IN CASE OF SUCH OTHER PERSON SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (II) OF THE SECOND PROVISO, BE THE PERIOD OF THIRTY - THREE MONTHS 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 OR TWENTY - ONE MO NTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED ARE HANDED OVER UNDER SECTION 153C TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON, WHICHEVER IS LATER: PROVIDED ALSO THA T IN CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 6 DURING THE FINANCIAL YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2009 OR ANY SUBSEQUENT FINANCIAL YEAR AND DURING THE COURSE OF THE PROCEEDING FOR THE ASSESSMENT OR REASSESSMENT OF TOTAL INCOME, IN CASE OF OTHER PERSON REFERRED TO IN SECTION 153C, A REFERENCE UNDER SUBSECTION (1) OF SECTION 92CA IS MADE, THE PERIOD OF LIMITATION FOR MAKING THE ASSESSMENT OR REASSESSMENT IN CASE OF SUCH OTHER PERSON SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (II) OF THE SECOND PROVISO, BE THE PERIOD OF THIRTY - SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDE R SECTION 132A WAS EXECUTED OR TWENTY - FOUR MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED ARE HANDED OVER UNDER SECTION 153C TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PE RSON, WHICHEVER IS LATER. EXPLANATION. IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF THIS SECTION, (I) THE PERIOD DURING WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT; OR (II) THE PERIOD COMMENCING FROM THE DATE ON WHICH THE ASSESSING OFFICER DIRECTS THE ASSESSEE TO GET HIS ACCOUNTS AUDITED UNDER SUB - SECTION (2A) OF SECTION 142 AND . THE FOLLOWING CLAUSE (IX) SHALL BE INSERTED AFTER CLAUSE (VIII) IN THE EXPLANATION TO SECTION 153B BY THE FINANCE ACT, 2013, W.E.F. 1 - 4 - 2016 : (IX) THE PERIOD COMMENCING FROM THE DATE ON WHICH A REFERENCE FOR DECLARATION OF AN ARRANGEMENT TO BE AN IMPERM ISSIBLE AVOIDANCE ARRANGEMENT IS RECEIVED BY THE COMMISSIONER UNDER SUB - SECTION (1) OF SECTION 144BA AND ENDING ON THE DATE ON WHICH A DIRECTION UNDER SUB - SECTION (3) OR SUB - SECTION (6) OR AN ORDER UNDER SUB - SECTION (5) OF THE SAID SECTION IS RECEIVED BY T HE ASSESSING OFFICER, SHALL BE EXCLUDED : PROVIDED THAT WHERE IMMEDIATELY AFTER THE EXCLUSION OF THE AFORESAID PERIOD, THE PERIOD OF LIMITATION REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF THIS 67[SUBSECTION] AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT OR REASSESSMENT, AS THE CASE MAY BE, IS LESS THAN SIXTY DAYS, SUCH REMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAYS AND THE AFORESAID PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY. (2) THE AUTHORISATION REFERRED T O IN CLAUSE (A) AND CLAUSE (B) OF SUB - SECTION (1) SHALL BE DEEMED TO HAVE BEEN EXECUTED, (A) IN THE CASE OF SEARCH, ON THE CONCLUSION OF SEARCH AS RECORDED IN THE LAST PANCHNAMA DRAWN IN RELATION TO ANY PERSON IN WHOSE CASE THE WARRANT OF AUTHORISATION HAS BEEN ISSUED; M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 7 (B) IN THE CASE OF REQUISITION UNDER SECTION 132A, ON THE ACTUAL RECEIPT OF THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS BY THE AUTHORISED OFFICER. 153C. ASSESSMENT OF INCOME OF ANY OTHER PERSON (1) NOTWITHSTANDING ANYTHING CO NTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 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 REQUISITIO NED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A : PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFER ENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB - SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON: PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, SPECIFY THE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARC H IS CONDUCTED OR REQUISITION IS MADE EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB - SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB - SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB - SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUBSECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MADE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 8 PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS T OTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECTION 153A. 8.2 FROM A PLAIN READING OF THESE SECTIONS, WE FIND THAT SECTION 153A IS PROCEDURAL SECTION WHICH DEALS WITH THE MODE OF ASSESSMENT. A NOTICE U/S. 153A OF TH E ACT CAN ONLY BE ISSUED TO SUCH PERSON WHERE A SEARCH IS INITIATED U/S. 132 OF THE ACT OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED U/S. 132A OF THE ACT AFTER 31ST DAY OF MAY, 2003, REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FOLLOWING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITIONED IS MADE. THEREAF TER ASSESSMENT WOULD BE FRAMED AS PER THE PROVISIONS OF SECTION 143 OF THE ACT. SECTION 153C DEALS WITH THE SITUATION WHERE THE AO IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONS BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT THE ASSESSING OFFICER SHALL PROCEED AGAINST EACH OF SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR RE - ASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE ACT, MEANING THEREB Y THAT ACTION U/S. 153C OF THE ACT ALWAYS DEPENDS UPON THE ACTION U/S. 153A OF THE ACT UPON SOME OTHER PERSON. THE AO OF SUCH PERSON IN WHOSE CASE SEARCH WAS CONDUCTED IS SATISFIED THAT THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO SOME OTHER PERSON, HE AFTER FORMING THE BELIEF TO THAT EXTENT REGARDING THE SAME SHALL HAND OVER THE RELEVANT MATERIAL TO THE CONCERNED AO HAVING JURISDICTION OVER SUCH OTHER PERSON. IN OTHER WORDS, WE SAY THAT BEFORE INITIATING PROCEEDINGS U/S 153C, THE AO WHO HAS INITIATED PROCEEDINGS FOR COMPLETION OF ASSESSMENT U/S. 153A OF THE ACT SHOULD BE SATISFIED THAT THERE IS NO UNDISCLOSED INCOME WHICH HAS BEEN TRACED OUT WHEN A PERSON WAS SEARCHED U /S. 132 OF THE ACT OR THE BOOKS OF ACCOUNT WERE REQUISITIONED U/S. 132A OF THE ACT. THUS, IN CONTRAST TO THE PROVISIONS OF SECTION 148 OF THE ACT WHERE RECORDING A REASON IN WRITING ARE SINE QUA NON. UNDER SECTION 153C THE EXISTENCE OF COGENT AND DEMONSTRA TIVE MATERIAL IS GERMANE TO THE ASSESSING OFFICERS SATISFACTION IN CONCLUDING THAT THE SEIZED DOCUMENTS BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON IS NECESSARY FOR INITIATION OF ACTION UNDER SECTION 153C OF THE ACT. THE BARE READING OF THE PROVISIO N OF SECTION 153C INDICATES THAT THE SATISFACTION NOTE COULD BE PREPARED BY THE ASSESSING OFFICER EITHER AT THE TIME OF INITIATING PROCEEDINGS FOR COMPLETION OF ASSESSMENT OF A SEARCHED PERSON UNDER SECTION 153A OF THE ACT OR DURING THE STAGE OF THE ASSESS MENT PROCEEDINGS. IT DOES NOT MEAN THAT AFTER COMPLETION OF THE ASSESSMENT, THE ASSESSING OFFICER WHO HAS PASSED THE ASSESSMENT ORDER U/S. 153A IN THE CASE OF SEARCHED PERSON CANNOT PREPARE THE SATISFACTION NOTE TO THE EFFECT THAT THERE EXISTS INCOME TAX B ELONGING TO ANY PERSON OTHER THAN THE SEARCHED PERSON IN RESPECT OF WHOM A SEARCH WAS MADE UNDER SECTION 132 OR REQUISITION OF BOOKS OF ACCOUNTS WERE MADE UNDER SECTION 132A OF THE ACT. IN OTHER WORDS, THE PERSON WHO HAS PASSED THE ORDER IN THE CASE OF M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 9 THE SEARCHED PERSON U/S. 153A OF THE ACT IS REQUIRED TO RECORD THE SATISFACTION NOTE BEFORE COMPLETION OF ASSESSMENT U/S. 153A OF THE ACT. 8.3 THE CONTENTION OF THE ASSESSEE IS THAT SATISFACTION IS SAID TO HAVE BEEN RECORDED BY THE AO WHO HAS PASSED THE OR DER U/S. 153A OF THE ACT IN THE CASE OF THE ASSESSEE AND IT IS ALSO SATISFACTION NOTE TO THAT EFFECT THAT THERE EXISTS INCOME TAX BELONGING TO ANY PERSON OTHER THAN THE SEARCHED PERSON IN RESPECT OF WHOM SEARCH WAS MADE U/S. 132 OF THE ACT OR REQUISITION O F BOOKS OF ACCOUNT WERE MADE U/S. 132A OF THE ACT. THE SATISFACTION NOTE IS TO BE RECORDED BY THE AO WHO HAS INITIATED PROCEEDINGS FOR COMPLETION OF ASSESSMENT U/S. 153A OF THE ACT AND ALSO IT SHOULD BE RECORDED. IT IS ALSO TO BE NOTED THAT FOR THE PURPOSE OF S. 153C A SATISFACTION NOTE IS SINE QUA NON AND MUST BE PREPARED BY THE AO BEFORE HE TRANSMITS THE RECORD TO THE OTHER AO WHO HAS JURISDICTION OVER SUCH OTHER PERSON. THE SATISFACTION NOTE COULD BE PREPARED AT EITHER OF THE FOLLOWING STAGES: (A) AT T HE TIME OF OR ALONG WITH INITIATION OF PROCEEDINGS AGAINST THE SEARCHED PERSON U/S. 153A OF THE ACT; (B) ALONG WITH THE ASSESSMENT PROCEEDINGS U/S. 153A OF THE ACT; (C) IMMEDIATELY AFTER THE ASSESSMENT PROCEEDINGS ARE COMPLETED U/S. 153A OF THE ACT OF THE SEARCHED PERSON. 8.4 THUS, THE CONDITION PRECEDENT FOR ISSUING NOTICE U/S. 153C AND ASSESSING OR RE - ASSESSING INCOME OF SUCH OTHER PERSON IS THAT, THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF ACCOUNT OR DOCUMENTS SEI ZED OR REQUISITIONED SHOULD BELONG TO SUCH OTHER PERSON. IF THE SAID REQUIREMENT IS NOT SATISFIED RECOURSE CANNOT BE MADE TO THE PROVISIONS OF SECTION 153C OF THE ACT. THUS, THE PROVISIONS CONTAINED U/S. 153C OF THE ACT CAN ONLY BE INVOKED WHERE THERE WAS SATISFACTION BY THE AO HAVING JURISDICTION OVER THE PERSON SEARCHED OR REQUISITIONED U/S. 132A DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, THE PROCEEDINGS U/S. 153A OF THE ACT ALWAYS PRECEDE THE PROCEEDINGS U/S. 153C OF THE ACT AND WITHOUT RECO RDING SATISFACTION NOTE BY THE ASSESSING OFFICER INITIATING PROCEEDINGS FOR COMPLETION OF ASSESSMENT U/S. 153A OF THE ACT CANNOT BE PROCEEDED U/S. 153C OF THE ACT IN THE CASE OF SUCH OTHER PERSON NOT SEARCHED. SAME VIEW WAS TAKEN BY THE SUPREME COURT IN TH E CASE OF CIT VS. CALCUTTA KNITWEARS, LUDHIANA IN CIVIL APPEAL NOS. 3958 OF 2014 (SLP) (C) NO. 10542 OF 2011 DATED 12TH MARCH, 2014. FURTHER IT WAS ALSO HELD BY THE SUPREME COURT IN THE CASE OF MANISH MAHESWARI VS. JCIT (289 ITR 341) AS UNDER: 'HELD, SEC . 158BD PROVIDES FOR TAKING RECOURSE TO A BLOCK ASSESSMENT IN TERMS OF S. 158BC IN RESPECT OF ANY OTHER PERSON, THE CONDITIONS PRECEDENT WHEREFOR ARE : (I) SATISFACTION MUST BE RECORDED BY THE AO THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THA N THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER S. 132; (II) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON; AND (III) THE AO HAS PROCEEDED UNDER S . 158BC AGAINST SUCH OTHER PERSON. THE CONDITIONS M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 10 PRECEDENT FOR INVOKING THE PROVISIONS OF S. 158BD, THUS, ARE REQUIRED TO BE SATISFIED BEFORE THE PROVISIONS OF CHAPTER XIV - B ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WHOSE PREMISES HAD BE EN SEARCHED OR WHOSE DOCUMENTS AND OTHER ASSETS HAD BEEN REQUISITIONED UNDER S. 132A. THE IMPUGNED NOTICE DOES NOT RECORD ANY SATISFACTION ON THE PART OF THE AO. DOCUMENTS AND OTHER ASSETS RECOVERED DURING SEARCH HAD NOT BEEN HANDED OVER TO THE AO HAVING JURISDICTION IN THE MATTER. NO PROCEEDING UNDER S. 158BC HAD BEEN INITIATED. THERE IS, THUS, A PATENT NON - APPLICATION OF MIND. A PRESCRIBED FORM HAD BEEN UTILIZED. EVEN THE STATUS OF THE ASSESSEE HAD NOT BEEN SPECIFIED. IT HAD ONLY BEEN MENTIONED THAT THE SEARCH WAS CONDUCTED IN THE MONTH OF NOVEMBER, 1995. NO OTHER INFORMATION HAD BEEN FURNISHED. THE PROVISIONS CONTAINED IN CHAPTER XIV - B ARE DRASTIC IN NATURE. IT HAS DRACONIAN CONSEQUENCES. SUCH A PROCEEDING CAN BE INITIATED, IT WOULD BEAR REPETITION TO S TATE, ONLY IF A RAID IS CONDUCTED. WHEN THE PROVISIONS ARE ATTRACTED, LEGAL PRESUMPTIONS ARE RAISED AGAINST THE ASSESSEE. THE BURDEN SHIFTS ON THE ASSESSEE. AUDITED ACCOUNTS FOR A PERIOD OF TEN YEARS MAY HAVE TO BE REOPENED. AS THE AO HAS NOT RECORDED HIS SATISFACTION, WHICH IS MANDATORY; NOR HAS HE TRANSFERRED THE CASE TO THE AO HAVING JURISDICTION OVER THE MATTER, THE IMPUGNED JUDGMENTS OF THE HIGH COURT CANNOT BE SUSTAINED. 8.5 IN THE PRESENT CASE, THERE WAS A SEARCH U/S. 132 OF THE ACT IN M/S. KUNHIT HARUVAI MEMORIAL CHARITABLE TRUST, CALICUT WHICH REVEALED THAT THE ASSESSEE RECEIVED TRAINING CHARGES FROM COLLEGE OF NURSING WHICH IS AN INSTITUTE UNDER KMTC. IT WAS ALSO NOTED THAT DURING THE COURSE OF SEARCH, THE ASSESSEE HAD NOT FILED RETURN OF INCOME FROM ASSESSMENT YEAR 2006 - 07 ONWARDS. IT RECEIVED INCOME FROM IP AND OP COLLECTIONS, DIALYSIS, ADVERTISEMENT, X - RAYS, LAB, CT SCAN, MRI, INCOME FROM HOSPITAL CANTEEN IN ADDITION TO THE TRAINING CHARGES RECEIVED FROM KMCT. CONSEQUENTLY, NOTICE U/S. 153A(A) R.W.S 153C WAS ISSUED TO THE ASSESSEE. IT WAS THEREFORE, A PRIMA FACIE PROOF THAT CONDITION OF SECTION 153C WAS SATISFIED BEFORE INVOKING THE JURISDICTION IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAD NOT RAISED THIS ISSUE BEFORE THE ASSESSING OFFICER. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS NOT ARISING OUT OF THE IMPUGNED ORDER OF THE AUTHORITIES BELOW. THE ASSESSEE MUST HAVE BROUGHT ON RECORD THE PANCHANAMA FROM THE DATE OF SEARCH TILL THE DATE ON WHICH PROHIBITORY ORDERS WERE LIFTED IN THE CASE O F THE SEARCHED PARTIES, STATEMENT RECORDED U/S. 132(4) OF THE SEARCHED PARTIES, THE ORDER SHEET ENTRIES MADE BY THE CONCERNED ASSESSING OFFICER IN RESPECT OF SEARCHED PARTIES AND ORDER SHEET ENTRIES MADE BY ITS ASSESSING OFFICER AND ALSO IF ANY STATEMENT R ECORDED FROM THE PRESENT ASSESSEE TO SHOW THAT THE INITIATION OF PROCEEDINGS U/S. 153C WAS NOT PROPER. IT INVOLVES INVESTIGATION OF FACTS WHICH HAVE NOT BEEN BROUGHT ON RECORD BY THE ASSESSEE. IN THE PRESENT CASE, THE ASSESSEE BROUGHT ON RECORD ONLY ONE PA NCHANAMA RECORDED FROM M/S. KUNHITHARUVAI MEMORIAL CHARITABLE TRUST, KOZHIKODE DATED 01/11/2011 WHICH IS A SEARCHED PARTY. IN THESE CIRCUMSTANCES, THE ASSESSEE SHOULD HAVE RAISED THIS GROUND AT THE EARLIEST BEFORE THE AUTHORITIES BELOW. NO FACTS OR MATERIA L HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE IN SUPPORT OF THE ADDITIONAL GROUND OF APPEAL. SINCE ADDITIONAL GROUND IS RAISED BY THE ASSESSEE, THEREFORE, THE ASSESSEE SHALL HAVE TO PROVE THAT THE SAME IS FIT FOR ADMISSION. THE ONUS ON THE ASSESSEE WAS NOT DISCHARGED IN THIS CASE. THE M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 11 CHALLENGE TO NOTICE ISSUED U/S. 153A(A) R.W.S. 153C OF THE ACT WAS NOT MADE BEFORE THE AUTHORITIES BELOW. THE ASSESSEE HAD FILED THE RETURN OF INCOME BEFORE THE ASSESSING OFFICER ON 06/12/2012 FOR ALL THE ASSESSMENT YEARS. IT C ANNOT BE SAID THAT MATERIAL AND EVIDENCE CONNECTED WITH INVOKING THE JURISDICTION U/S. 153C OF THE ACT ARE THE INTERNAL RECORD OF THE DEPARTMENT AND THE ASSESSEE COULD NOT LAY HANDS ON THE SAME. ALL THE MATERIALS CONNECTED WITH THE ASSESSMENTS U/S. 153C AR E PART OF RECORD OF THE ASSESSING OFFICER WHICH THE ASSESSEE COULD HAVE ASKED FOR OR GET COPY OF THE SAME BY MAKING A REQUEST IN ACCORDANCE WITH RULE. THE FAILURE ON THE PART OF THE ASSESSEE TO DO THE NEEDFUL WILL NOT SUPPORT THE ASSESSEES CASE. IN OTHER WORDS, THE ASSESSEE HAS NOT BROUGHT ON RECORD ALL THE FACTS NECESSARY FOR ADJUDICATION OF THE ISSUE. THE LATCHES ON THE PART OF THE ASSESSEE IS TO BE VIEWED AS A FACTOR AGAINST THE ASSESSEE. FROM THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF NATIONAL TH ERMAL POWER CORPORATION LTD. VS. CIT (229 ITR 383), THE FOLLOWING PRINCIPLES EMERGE REGARDING THE RIGHT OF THE PARTIES TO RAISE A NEW PLEA FOR THE FIRST TIME BEFORE THE TRIBUNAL: A) IT IS THE DISCRETION OF THE TRIBUNAL TO ADMIT OR NOT TO ADMIT A NEW GROUND TO BE RAISED BEFORE IT. B) IF THE TRIBUNAL IS REQUIRED TO CONSIDER ONLY THE QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS. SUCH QUESTION SHOULD BE ALLOWED TO BE RAISED. C) THAT THE PROCEEDINGS BEFORE THE TAX AUTHORITIES ARE FOR CORRECT LY ASSESSING THE TAX LIABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. 8.6 IN OUR OPINION, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE CANNOT BE ADMITTED FOR ADJUDICATION IN VIEW OF NOT BRINGING THE FACTS ON RECORD. THE ASSESSEE CANNOT BE PERMITTED TO RA ISE THIS ISSUE BEFORE THE TRIBUNAL FOR THE FIRST TIME AND THEREBY, CHANGE THE VERY BASIS OF ASSESSMENT. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT WOULD BE PROPER NOT TO EXERCISE THE DISCRETIONARY POWER VESTED WITH THE TRIBUNAL IN FAVOUR OF THE ASSESSEE BY PERMITTING THEM TO RAISE THIS ISSUE BEFORE THE TRIBUNAL FOR THE FIRST TIME. WE ALSO PLACE RELIANCE ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF DR. R.P. PATEL VS. CIT (225 CTR 378). IN VIEW OF THIS, THE ADDIT IONAL GROUND RAISED BY THE ASSESSEE IS REJECTED. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A BRIEF WRITTEN SUBMISSION , WHICH READS AS FOLLOWS: - THE HONOURABLE TRIBUNAL DID NOT ADMIT THE ADDITIONAL GROUND AND DISPOSED OF THE APPEAL BY STATING THAT ALL THE FACTS RELATING TO THE GROUND RAISED ARE NOT ON RECORD AND THE APPELLANT HAD FAILED TO BRING ON RECORD THE ADDITIONAL EVIDENCE REQUIRED FOR ADJUDICATION OF THE ADDITIONAL GROUND FILED THE HONOURABLE M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 12 TRIBUNAL HOWEVER HAS ALSO GIVEN A FI NDING THAT THE ALL THE MATERIALS CONNECTED WITH THE ASSESSMENT ARE PART OF THE ASSESSING OFFICER'S RECORDS. THE TRIBUNAL SHOULD HAVE APPRECIATED THAT THE ADDITIONAL GROUNDS RELATED FULLY TO A JURISDICTIONAL ISSUE AND THE ENTIRE PARTICULARS RELATING TO THE SAME ARE PART OF DEPARTMENT FILE. THE APPELLANT MAY NOT BE IN A POSITION TO PRODUCE THE REQUIRED EVIDENCE. IT IS FOR THE DEPARTMENT TO REBUT THE STATEMENT OF THE APPELLANT THE LEGAL ISSUE RAISED GOES TO THE ROOT OF THE ASSESSMENT AND HONOURABLE TRIBUNAL OU GHT TO HAVE ADMITTED THE ADDITIONAL GROUND. THE HONOURABLE TRIBUNAL ALSO ERRED IN PLACING RELIANCE ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF DR. R . P. PATEL VS C IT (182 TAXMANN 305)(KER). IN THAT CASE, THE APPELLANT HAD MADE AN ADDIT IONAL CLAIM BEFORE THE TRIBUNAL FOR DEDUCTION OF EXPENSES. IN SUCH CASES WHERE DEDUCTION WAS CLAIMED FOR THE FIRST TIME BEFORE THE TRIBUNAL, THERE WAS JUSTIFICATION FOR NOT ADMITTING THE ADDITIONAL GROUND AS THE ASSESSE E WAS DUTY BOUND TO ENSURE THAT THE A DDITIONAL GROUND PERTAINED TO SOME MATERIALS WHICH WERE ALREADY ON RECORD. IN THE APPELLANT'S CASE, THE ADDITIONAL GROUND WAS ON A JURISDICTIONAL MATTER, THE DETAILS OF WHICH WERE ALREADY AVAILABLE IN THE DEPARTMENTAL RECORDS. THE RELIANCE BY THE TRIBUNAL ON THE DECISION IN THE CASE OF DR RP.PATELS CASE (SUPRA) IS HENCE AN ERROR OF LAW. THE APPELLANT NOW SUBMITS THAT HONOURABLE TRIBUNAL SHOULD HAVE APPRECIATED THAT THE ADDITIONAL GROUND DID NOT PERTAIN TO ANY ADDITIONAL RELIEF OR CLAIM TO WHICH THE APPEL LANT WAS ENTITLED BUT NOT CLAIMED BEFORE THE LOWER AUTHORITIES. THE ADDITIONAL GROUND PERTAINED TO ASSUMPTION OF JURISDICTION. THE ENTIRE RECORDS RELATING TO THE SAME WERE IN THE POSSESSION OF THE DEPARTMENT ONLY AND NOT WITH THE APPELLANT. THE DEPARTMENT SHOULD HAVE PRODUCED ALL THEIR RECORDS TO REBUT THE GROUND TAKEN BY THE APPELLANT AND IT WAS NOT FOR THE APPELLANT TO OBTAIN THIS INTERNAL DEPARTMENTAL RECORDS AND TO PRODUCE THE SAME BEFORE THE HONORABLE TRIBUNAL. IT IS SUBMITTED THAT THE HONORABLE TRIBU NAL HAS ERRED IN CONCLUDING THAT THE ADDITIONAL GROUND CANNOT BE ADMITTED FOR THE REASON THAT THE CHALLENGE TO NOTICE ISSUED U/S 153A (A) READ WITH SECTION 153C OF THE ACT WAS NOT RAISED BEFORE THE AUTHORITIES BELOW. ON THE CONTRARY THE HONOURABLE TRIBUNAL SHOULD HAVE HELD THAT THE ADDITIONAL GROUND WHICH WAS A PURELY ON A LEGAL ISSUE GOING TO THE ROOT OF THE ASSESSMENT COULD BE RAISED BY THE APPELLANT AT ANY STAGE OF M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 13 THE PROCEEDINGS EVEN BEFORE THE APPELLATE AUTHORITIES. THIS CONCLUSION OF THE HONOURABLE TRIBUNAL IS AN ERROR OF LAW IN THE LIGHT OF THE PRINCIPLE LAID DOWN BY THE APEX COURT AND THE JURISDICTIONAL HIGH COURT . IT IS ALSO SUBMITTED THAT AT THE TIME OF HEARING OF THE APPEAL, THE HONORABLE TRIBUNAL HAD AFTER CONSIDERING THE ADDITIONAL GROUNDS, DIRECTED THE DEPARTMENTAL REPRESENTATIVE TO PRODUCE THE RELEVANT RECORDS. FURTHER, NO OPPORTUNITY OR HEARING WAS HELD AFTE R THAT. SINCE THE FINDING AS PER THE DEPARTMENTAL RECORDS HAS NOT BEEN ADVERTED TO IN THE APPELLATE ORDER, AN ERROR HAS CREPT INTO THE ORDER OF THE HONORABLE TRIBUNAL. IN THE ABOVE CIRCUMSTANCES, THE APPELLANT PRAYS THAT THE HONOURABLE TRIBUNAL MAY BE PL EASED TO RECALL THE ORDER IN ITA 62/ 2016 AND DISPOSE OF THE APPEAL AFTER CONSIDERING THE ADDITIONAL GROUND FILED. 5. NONE APPEARED ON BEHALF OF THE REVENUE, HENCE, WE PROCEED TO DISPOSE OF THESE MISCELLANEOUS APPLICATIONS ON MERITS, AFTER HEARING THE LE ARNED COUNSEL FOR THE ASSESSEE. 6. WE HAVE CAREFULLY PERUSED THE ORDER OF THE TRIBUNAL ALONG WITH THE ARGUMENT MADE BY LEARNED COUNSEL FOR THE ASSESSEE. WE HAVE NO DOUBT, IN OUR OPINION, THE ASSESSEE HEREIN IS MAKING AN EFFORT TO REVIEW THE ORDER OF THE T RIBUNAL STATED SUPRA BY TAKING UP VARIOUS ABSTRACTS FROM THE ORDER OF THE TRIBUNAL AND MAKING SUBMISSIONS ON THE OBSERVATIONS MADE BY THE TRIBUNAL, HERE AND THERE, WITHOUT TAKING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE INTO CONSIDERATION. I N OUR OPINION, THE ORDER OF THE TRIBUNAL TO BE READ IN WHOLE AND NOT IN PIECEMEAL MANNER, AS HELD BY THE HONBLE SUPREME COU RT IN THE CASE OF CIT V. KARAM CHAND THAPAR & BROS. PVT. LTD. [( 1989) 176 ITR 535 (SC)] , WHICH READS AS UNDER: - M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 14 IT IS EQUALLY WELL - SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY T HE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE T RIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. 6 .1 IT IS TO BE NOTED THAT AT THE TIME OF HEARING OF THE APPEALS ON EARLIER OCCASION, THE ASSESSEE / THE LEARNED COUNSEL FOR THE ASSESSEE ONLY RAISED THE ADDITIONAL GROUND AND MADE LIMITED ARGUMENT IN THIS REGARD AND NOT FILED ANY APPLICATION FOR FILING ADD ITIONAL EVIDENCE UNDER RULE 29 OF THE I.T.RULES. THERE WAS NOT A WORD UTTERED BY THE LEARNED AR DURING THE COURSE OF ORIGINAL HEARING OF THE APPEALS INVITING OUR ATTENTION TO THE EVIDENCE REQUIRED TO CONSIDER THE ADDITIONAL GROUND BY THE TRIBUNAL. RATHER A S NOTED BY THE TRIBUNAL IN ITS ORDER, THE LEARNED COUNSEL FOR THE ASSESSEE ONLY ARGUED ON THE POINT OF ADMISSION OF ADDITIONAL GROUND. SINCE THE PRODUCTION OF ADDITIONAL EVIDENCE REQUIRED BY THE ASSESSEE AS ADDITIONAL GROUND IS DIRECTLY LINKED TO THE EXAMI NATION OF THE ORIGINAL RECORDS BY THE TRIBUNAL, THE TRIBUNAL CONSIDERED THE ADDITIONAL GROUND AND OBSERVED THAT THE ADDITIONAL GROUND CANNOT BE ADMITTED IN THE ABSENCE OF BRINGING ON RECORD THE ADDITIONAL EVIDENCE PERTAINS TO RECORDING SATISFACTION SO AS T O ISSUE NOTICE U/S 153A OF THE I.T.ACT. THE TRIBUNAL CONSIDERED EVERY MATERIAL FACT, FOR AND AGAINST THE ASSESSEE, WITH DUE M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 15 CARE AND GIVEN A FINDING THAT THE ADDITIONAL GROUND COULD NOT BE ADMITTED AT THAT STAGE. THEREFORE, THE FACTUAL CONCLUSION DRAWN BY THE TRIBUNAL ARE NOT OPEN TO REVIEW BY WAY OF APPLICATION U/S 254(2) OF THE I.T.ACT. IF THE ASSESSEE WANTS TO CHALLENGE THE CONCLUSION OR FINDING GIVEN BY THE TRIBUNAL ON REJECTION OF THE ADDITIONAL GROUND, WHICH IS NOT SUPPORTED BY ANY EVIDENCE ON RECORD, THE REMEDY LIES TO THE ASSESSEE ELSEWHERE. IN THE CASE OF HOMI JEHANGIR GHEESTA V. CIT [(1961) 41 ITR 135 (SC)] , THE HONBLE SUPREME COURT HELD THAT THE ORDER OF THE TRIBUNAL MUST BE READ AS A WHOLE TO DETERMINE WHETHER EVERY MATERIAL FACT, FOR AND AGAINS T THE ASSESSEE, HAS BEEN CONSIDERED FAIRLY AND WITH DUE CARE; WHETHER THE EVIDENCE PRO AND CON HAS BEEN CONSIDERED IN REACHING THE FINAL CONCLUSION AND WHETHER THE CONCLUSION REACHED BY THE TRIBUNAL HAS BEEN COLOURED BY IRRELEVANT CONSIDERATIONS OR MATTERS OF PREJUDICE. SAME VIEW IS TAKEN BY THE HONBLE SUPREME COURT IN THE CASE OF DHEERAJ LAL GIRDHARI LAL V. CIT [(1954) 25 ITR 736 (SC)] AND OMAR SALAY MOHAMMED SAIT V. CIT [(1959) 37 ITR 151 (SC)] . IN VIEW OF THESE, WE DO NOT FIND THAT ON THE TESTS LAID DOW N BY THE ORDER OF THE TRIBUNAL COULD BE CHALLENGED AS IT CONSIDERED ALL RELEVANT DETAILS MINUTELY AND DREW NECESSARY FACTUAL INFERENCES IN A FAIR, REASONABLE AND IMPARTIAL MANNER. WE, THEREFORE, SEE NO REASON TO ENTERTAIN THE MISCELLANEOUS APPLICATIONS, AS THERE IS NO MISTAKE APPARENT ON RECORD WITHIN THE MEANING OF SECTION 254 OF THE I.T.ACT. AS SUCH, THERE IS NO JUSTIFICATION EITHER FOR RECALLING THE ORDER OR FOR MAKING AN ORDER OF AMENDMENT TO THE ORDER PASSED U/S 254(1) OF THE I.T.ACT. ACCORDINGLY, ALL THE M A NO S . 67 - 73 / COCH /201 9 M/S.MOIDUS MEDICARE PVT.LTD . 16 MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. 7 . IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED ON THIS 20 TH DAY OF SEPTEMBER, 2019 . SD/ - SD/ - ( GEORGE GEORGE K ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER COCHIN ; DATED : 20 TH SEPTEMBER, 2019 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APP LICANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) - IV, KOCHI 4. THE CIT , CENTRAL CIRCLE, KOCHI. 5. DR, ITAT, COCHIN 6 . GUARD FILE.