SURENDRA GARG HUF ,MUMBAI V. ITO- 19(3)(4), MUMBAI

ITA 583/MUM/2024

AI Insights

The case involves Surendra Garg, HUF, who appealed against the reassessment orders for the Assessment Years 2012-2013 and 2013-2014. The reassessment was initiated based on information from the Deputy Commissioner of Income Tax (Investigation Wing), Ahmedabad, regarding alleged bogus Long Term Capital Gain entries related to shares of KGN Enterprises Ltd. The Assessing Officer disallowed the capital gains exemption claimed under Section 10(38) and treated the sale proceeds as unexplained cash credit under Section 68. The Tribunal dismissed the challenge to the validity of the reassessment but restored the issue of addition under Section 68 for further examination.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 825227 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2026
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 08-02-2024
• Other Referred Cases: Sejal Jewellary Vs. Union of India, Shyam Sunder Khandelwal & Ors. Vs. Assistant Commissioner of Income Tax, Principal Commissioner of Income Tax Vs. Abhisar Buildwell Private Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ASSESSEE; WAY OF ADDITIONAL GROUND; THIS TRIBUNAL WOULD BE
• Keywords: Set aside; Reassessment proceedings; Question of law; Unexplained cash credit; Capital Gains; Search and seizure; Accommodation entries; Block assessment; Loose papers; Assessment record; Competent authority; Reason to believe; Tangible material; Deduction for capital gain; Bogus
• Section: 147; 148; 143(3); 132; 153A; 68; 131

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI MS. PADMAVATHY S., ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER ITA No.300/MUM/2024 (Assessment Year: 2012-2013) & ITA No.583/MUM/2024 (Assessment Year: 2013-2014) Surendra Garg, HUF 122, Jayant Indust. Estate, 63, Tardeo Road, Mumbai – 400034. Maharashtra. [PAN:AADHS5669G] …………. Appellant Income Tax Officer 19(3)(4), Mumbai Matru Mandir, 1st & 2nd Floor, Tardeo, Nana Chowk, Grant Road, Mumbai – 400007. Maharashtra Vs …………. Respondent Appearance For the Appellant/Assessee For the Respondent/Department : : Shri Dharan Gandhi Shri Bhangepatil Pushkaraj Ramesh Shri Krishna Kumar Date Conclusion of hearing Pronouncement of order : : 10.10.2025 02.01.2026 O R D E R [ Per Rahul Chaudhary, Judicial Member: 1. These are two appeals preferred by the Assessee pertaining to Assessment Years 2012-2013 and 2013-2014. Since the appeals involved identical issues arising from common factual matrix the same were heard together and are, therefore, being disposed off by way of a common order. 1.1. The facts common to both the appeals are that Assessee is a Hindu Undivided Family. The return of income filed by the Assessee for the relevant assessment years was processed under Section 143(1) of Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 2 the Act. Subsequently, on the basis of information received from Deputy Commissioner of Income Tax (Investigation Wing), Ahmadabad to the effect that M/s. KGN Group of Companies were engaged in providing bogus Long Term Capital Gain entries in respect of two scripts (i.e., KGN Industries Ltd. and KGN Enterprises Ltd.). Followed by the inquiry/verification by the Assessing Officer, reassessment proceedings under Section 147 of the Act were initiated in case of the Assessee for the Assessment Years 2012-2013 and 2013-2014. The Assessing Officer noted that the Assessee had claimed Long Term Capital Gain exemption under Section 10(38) of the Act in respect of sale of shares of KGN Enterprises Ltd. (in short ‘KGN Enterprises’), during the relevant previous years. The aforesaid reassessment proceedings culminated into passing of the Assessment Order(s) under Section 143(3) read with Section 147 of the Act whereby the transaction of purchase/sale of share of KGN Enterprises were held to be pre- determined transactions and additions were made in respect of the same in the hands of the Assessee under Section 68 of the Act. Being aggrieved, the Assessee challenged the validity of reassessment proceedings as well as the additions made in the hands of the Assessee on merits in appeal before the Learned CIT(A). Assessee’s challenge to validity of reassessment proceedings was rejected by the CIT(A) and the grounds raised by the Assessee challenging the additions made by the Assessing Officer under Section 68 of the Act on merits in respect of Capital Gain and/or sale consideration were also dismissed. Being aggrieved, the Assessee has carried the issues in appeal before this Tribunal in two separate appeals filed for the Assessment Years 2012-2013 and 2013-2014. ITA No.300/Mum/2024 [Assessment Year 2012-2013] 2. We would first take up appeal preferred by the Assessee for the Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 3 Assessment Year 2012-2013 directed against the Order, dated 16/01/2024, passed by the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as the ‘CIT(A)’], whereby the Ld. CIT(A) had partly allowed the appeal of the Assessee against the Assessment Order, dated 29/12/2017, passed under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for the Assessment Year 2012-2013. 2.1. The Assessee has raised following grounds of appeal in ITA No.300/Mum/2024 [Assessment Year 2012-2013] : “1. The re-opening of the assessment of the appellant by the issue of notice under section 148 without satisfying the jurisdictional conditions precedent to assuming jurisdiction under section 147 is without jurisdiction and bad-in-law and consequently, any assessment made on the basis of the notice which is bad-in-law may kindly be annulled. 2. On the facts and in law, the Learned Commissioner (Appeals) had erred in confirming the addition of Rs.59,24,273/- being the sale proceeds of shares by treating the same as unexplained cash credit under section 68 of the I.T.Act. Under the facts and circumstances of the matter, he ought not to have confirmed the said addition of Rs.59,24,273/-.” Additional ground “1. The notice u/s.148 of the Act is bad in law as the reopening is pursuant to the search of third party, and therefore the provisions of section 153C of the Act ought to have been invoked.” Additional Ground and Ground No. 1 3. The Additional Ground and Ground No. 1 raised by the Assessee challenge the validity of reassessment proceedings. 4. By way of the additional ground raised by the Assessee it has been contended on behalf of the Assessee that the reassessment Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 4 proceedings were bad in law since the same have been initiated under Section 147 of the Act whereas the Assessing Officer ought to have initiated proceedings under Section 153C of the Act. It is the contention of the Assessee that the reasons recorded for reopening the assessment provided that the reassessment proceedings have been initiated on the basis of information/material discovered during the search proceedings conducted on a third party and therefore, the Assessing Officer was required to take reference to Section 153C of the Act. 4.1. Per contra the Learned Departmental Representative supported the assumption of jurisdiction by the Assessing Officer under Section 147 of the Act and submitted that the Assessee had not raised any objections in this regard either during the assessment proceedings before the Assessing Officer or during the appellate proceedings before the CIT(A). Therefore, the additional ground raised by the Assessee should not be entertained in any case. 4.2. We have considered the rival submissions (oral as well as written) on the additional ground and have perused the material record including the judicial precedents cited by both the sides. 4.3. During the course of hearing Learned Authorized Representative for the Assessee had extensively relied upon the judgment of the Hon’ble Bombay High Court in the case of Sejal Jewellary Vs. Union of India [2025] 171 taxmann.com 846 (Bombay), judgment of the Hon’ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal & Ors. Vs. Assistant Commissioner of Income Tax [2024] 338 CTR, and judgment of the Hon’ble Supreme Court of India in the case of Principal Commissioner of Income Tax Vs. Abhisar Buildwell Private Ltd. [2023] 454 ITR 212 (SC), dated 24/04/2023. 4.4. In the case of Abhisar Buildwell Private Ltd. (Supra), the core issue Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 5 raised in a batch of appeals before the Hon’ble Supreme Court revolved around scope of assessment under Section 153A of the Act. The contention of the Revenue was that the Assessing Officer was competent to assess/reassess the total income of the Assessee taking into consideration the incriminating material unearthed during the search proceedings as well as other material available with the Assessing Officer. On the other hand, it was contended on behalf of the Assessee that in case of completed/unabated assessments, the Assessing Officer could only consider incriminating material unearthed during the course of search and was precluded from considering any other material derived from any other source. After examining the scheme of Section 153A of the Act and its legislative history the Hon’ble Supreme Court concluded as under: “9. While considering the issue involved, one has to consider the object and purpose of insertion of Section 153A in the Act, 1961 and when there shall be a block assessment under section 153A of the Act, 1961. 9.1 That prior to insertion of Section 153A in the statute, the relevant provision for block assessment was under section 158BA of the Act, 1961. The erstwhile scheme of block assessment under section 158BA envisaged assessment of 'undisclosed income' for two reasons, firstly that there were two parallel assessments envisaged under the erstwhile regime, i.e., (i) block assessment under section 158BA to assess the 'undisclosed income' and (ii) regular assessment in accordance with the provisions of the Act to make assessment qua income other than undisclosed income. Secondly, that the 'undisclosed income' was chargeable to tax at a special rate of 60% under section 113 whereas income other than 'undisclosed income' was required to be assessed under regular assessment procedure and was taxable at normal rate. Therefore, section 153A came to be inserted and brought on the statute. Under Section 153A regime, the intention of the legislation was to do away with the scheme of two parallel assessments and tax the 'undisclosed' income too at the normal rate of tax as against any special rate. Thus, after introduction of Section 153A and in case of search, there shall be block assessment for six years. Search assessments/block assessments under section 153A are triggered by conducting of Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 6 a valid search under section 132 of the Act, 1961. The very purpose of search, which is a prerequisite/trigger for invoking the provisions of sections 153A/153C is detection of undisclosed income by undertaking extraordinary power of search and seizure, i.e., the income which cannot be detected in ordinary course of regular assessment. Thus, the foundation for making search assessments under sections 153A/153C can be said to be the existence of incriminating material showing undisclosed income detected as a result of search. 10. On a plain reading of Section 153A of the Act, 1961, it is evident that once search or requisition is made, a mandate is cast upon the AO to issue notice under section 153 of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Section 153A of the Act reads as under: “xx xx” 11. As per the provisions of Section 153A, in case of a search under section 132 or requisition under section 132A, the AO gets the jurisdiction to assess or reassess the 'total income' in respect of each assessment year falling within six assessment years. However, it is required to be noted that as per the second proviso to Section 153A, the assessment or re- assessment, if any, relating to any assessment year falling within the period of six assessment years 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. As per sub-section (2) of Section 153A, 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 which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Therefore, the intention of the legislation seems to be that in case of search only the pending assessment/reassessment proceedings shall abate and the AO would assume the jurisdiction to assess or reassess the 'total income' for the entire six years period/block assessment period. The intention does not seem to be to re- Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 7 open the completed/unabated assessments, unless any incriminating material is found with respect to concerned assessment year falling within last six years preceding the search. Therefore, on true interpretation of Section 153A of the Act, 1961, in case of a search under section 132 or requisition under section 132A and during the search any incriminating material is found, even in case of unabated/completed assessment, the AO would have the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material collected during the search and other material which would include income declared in the returns, if any, furnished by the assessee as well as the undisclosed income. However, in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act, subject to fulfilment of the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy. Therefore, even in case of block assessment under section 153A and in case of unabated/completed assessment and in case no incriminating material is found during the search, the power of the Revenue to have the reassessment under sections 147/148 of the Act has to be saved, otherwise the Revenue would be left without remedy.” 4.5. On perusal of the provisions contained in Section 153A of the Act and their interpretation as adopted by the Hon’ble Supreme Court by way of above judgment, it becomes clear that once search and seizure is made under Section 132 of the Act, a mandate is cast upon the Assessing Officer to issue notice under Section 153A of the Act in case of searched person require him to furnish return of income in respect of six assessment year following the assessment years immediately proceedings the assessment year relevant to previous year in which search is conducted. 4.6. However, we note that the scheme contained for Section 153C of the Act which has application in case of ‘a person other than the person referred to in section 153A’ (i.e., a person other than searched person [hereinafter referred to as ‘Other Person’] is slightly different. This becomes clear on perusal of Section 153C of Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 8 the Act which reads as under: “153C. (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, 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 notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and for the relevant assessment year or years referred to in sub-section (1) of section 153A: Provided that in case of such other person, the reference to the date of initiation of the search 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: xx xx (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 9 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 sub-section (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 person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A.” (Emphasis Supplied) 4.7. As per Section 153C(1) of the Act, the assumption of jurisdiction by the Assessing Officer to assess/reassess total income of the ‘Other Person’ is predicated on (a) First - the Assessing Officer of the searched person being satisfied that material unearthed during the search proceedings belongs/pertains to ‘Other Person (and not to the searched person); (b) Second - recording of such satisfaction to the aforesaid effect by the Assessing Officer of the searched person; (c) Third - transmitting of such material along with the satisfaction recorded as aforesaid by the Assessing Officer of the searched person to the Assessing Officer of such Other Person; (d) Fourth - the Assessing Officer of Other Person being satisfied that the material received has a bearing on the determination of the total income of such Other Person; and, (e) Fifth - the Assessing Officer Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 10 of such Other Person issuing a notice to commence assessment/reassessment. It is settled position that in case any one or more of the aforesaid events/conditions are not fulfilled, the assumption of jurisdiction by the Assessing Officer of the Other Person under Section 153C of the Act shall stand vitiated. Bare perusal of Section 153C of the Act make it is clear that the Assessing Officer of the Other Person comes into action only after satisfaction note and the material unearthed during the course of searched in received from the Assessing Officer of the searched person. 4.8. In the present case it is the contention of the Assessee is that the reassessment proceedings were initiated solely on the basis of incriminating material found during the course of the search conducted in the case of KGN Group of Companies and therefore, the Assessing Officer should have exercise jurisdiction under Section 153C of the Act in the case of the Assessee. It was submitted by the Learned Authorised Representative for the Assessee that during the search proceedings in the case of KGN Group of Companies incriminating material was found in respect of the Assessee and therefore, the Assessing Officer was mandated to initiated proceedings under Section 153C of the Act and precluded from initiating proceedings under Section 147 of the Act. The aforesaid contention has been raised by the Assessee for the first time before this Tribunal by way of an additional ground. It was submitted by the Learned Authorised Representative for the Assessee that the additional ground raised by the Assessee was a pure question of law and therefore, the same can be admitted and adjudicated by this Tribunal even though it has been raised for the first time as additional ground before this Tribunal. On a without prejudice basis, it was also contended that even if the aforesaid additional ground is not considered to be a pure question of law, the facts relevant for adjudication of the issue raised therein formed part of the Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 11 assessment records and should be called for and taken into consideration by this Tribunal. Therefore, the issue that assessed for consideration is whether in the facts and circumstances of the present case the additional ground raised by the Assessee can be regarded as a pure question of law. In this regard, it would be pertinent to note that appeal before us pertains to an HUF Assessee. According to the Revenue reassessment proceedings were initiated on the basis of information received from Deputy Commissioner of Income Tax (Investigation Wing), Ahmadabad to the effect that KGN Group of Companies was engaged in providing bogus Long Term Capital Gain accommodation entries and that during relevant previous year the Assessee was one of the beneficiary of such accommodation entries. It is admitted position that the Assessee had claimed Long Term Capital Gain Exemption in the return of income for the Assessment Year 2012-2013 and 2013-2014 in respect of sale of shares of KGN Enterprises. Therefore, the material on record shows that the Assessing Officer had assumed Jurisdiction under Section 147 of the Act and had framed assessment vide Assessment Order, dated 29/12/2017, passed under Section 143(3) read with Section 147 of the Act. The reasons recorded for reopening assessment provide that reassessment proceedings were on the basis of information received from Deputy Commissioner of Income Tax (Investigation Wing), Ahmadabad. It is not the case where the assessing officer of the searched person (i.e. KGN Enterprises) had handed over the incriminating material unearthed during the course of search to the Assessing Officer of the Assessee. There is nothing on record to suggest that any satisfaction note was drawn by the Assessing Officer of the searched person to the effect that any incriminating material found during the course of search pertained/related to the Assessee. On the contrary, it has been contended by the Revenue that no such satisfaction note was drawn. As noted hereinabove, the jurisdiction of the Assessing Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 12 Officer to assess/reassess income under Section 153C of the Act is predicated upon the Assessing Officer of the search person being satisfied that incriminating material found during the course of search belonged/pertained to Other Person (i.e. Assessee in the present case). For assumption of jurisdiction under Section 153C of the Act by the Assessing Officer of the Assessee it was required that the Assessing Officer of the searched person (i.e. KGN Group of Companies) should have transmitted the satisfaction so recorded alongwith incriminating material found that during the course of search to the Assessing Officer of the Assessee. It is only after the receipt of the same, that the Assessing Officer of the Assessee could have proceeded to take any steps in terms of Section 153C of the Act to draw satisfaction that the material received had a bearing on determination of total income of the Assessee in the present case. It would be pertinent to note that the Hon’ble Supreme Court has, in the case of Commissioner of Income-tax Vs. Jasjit Singh [2023] 155 taxmann.com 155 (SC), held that the Assessing Officer of Other Person would have jurisdiction to frame assessment under Section 153C read with Section 153A of the Act in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which the incriminating material is received by the Assessing Officer of Other Person from the assessing officer of the searched person. In the case before us, neither a satisfaction note has been drawn by the assessing officer of the searched person nor has any material been handed over to the Assessing Officer of the Assessee. Therefore, the scheme contained in Section 153C of the Act would become unworkable in case present case and accepting submission made on behalf of the assessee would lead to absurdity. While it has been contended by the Learned Authorized Representative for the Assessee that in the present case provision of Section 153C of the Act would be attracted, there is nothing on record to support the aforesaid contention raised by the Learned Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 13 Authorized Representative for the Assessee. The aforesaid submissions are premised upon the fact that in the reasons recorded for reopening the assessment reference has been made in the search carried out in the case of KGN Group of Companies. It has been contended that the reasons recorded are founded on the material found during the course of search. In this regard, we deem it appropriate to revert to the judgment of Hon’ble Supreme Court of India in the case of Abhisar Buildwell Private Ltd. (Supra) where clearly a distinction was drawn in case of incriminating material found during the course of search and ‘other material’ that came to the knowledge in the position of Assessing Officer. The contention of the Assessee is that the basis of initiating reassessment proceedings is the incriminating material found during search. This has been disputed by the Revenue. To answer this disputed question of fact, the Tribunal would be required to inquire into whether all the material on the basis of which reasons were recorded for reopening assessment constituted incriminating material found during the course of search conducted in the case of KGN Group of Companies or whether the same fell into the category of ‘other material’ or information gathered by the Revenue in post-search proceedings. In our view the aforesaid issue can, at best, be regarded as mixed question of fact & law requiring examination of facts. Thus, clearly, in the present case the additional ground raised by the Assessee does not simply raise a pure question of law as was contended by the Learned Authorized Representative for Assessee. Further, the incriminating material found during the course search in the case of KGN Group of Companies as also the other material would form part of assessment records of the searched person and not the Assessee. Material on record clearly shows that reassessment proceedings were initiated on the basis of report of investigation wing whether such report was accompanied only incriminating material pertaining to the Assessee unearthed during the search carried out on KGN Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 14 Group of Companies would require examination of assessment records of searched persons as well as that of the Assessee. Therefore, we reject the contention of the Assessee that facts relating for adjudication of the additional ground raised by the Assessee form part of the material on record. We are of the view, in order to answer the disputed question of fact & law raised by the Assessee by way of additional ground, this Tribunal would be required to inquire into new facts and material not forming part of record of the present Assessee. Therefore, we hold that the additional ground raised by the Assessee cannot be regarded as a pure question of law in the facts and circumstances of the present case and the same would require examination of facts which do not form part of the record. Accordingly, the additional ground raised by the Assessee for the first time before this Tribunal cannot be admitted as hereby rejected. 4.9. During the course of hearing extensive reliance was placed by the Learned Authorized Representative for the Assessee on the judgment of the Hon’ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal & Ors. (Supra). On perusal of the said judgment, we find that the same is not applicable to the facts of the present case. In that case the Revenue had not even set up a case that reassessment proceedings were based upon material other than incriminating material found during the course search and this has been so recorded by the Hon’ble High Court in Paragraph 29 of the said judgement which reads as under: “29. The Department has not set up a case that for initiating proceedings under section 148 it had material other than the material seized during the search of Manihar Group. The contention was that though the material with regard to unaccounted loan advanced by the petitioner was received, the earning of interest on unaccounted loan was derivation of the AO from the material received. The submission is that the derived conclusion cannot be acted upon under section 153C. The submission lacks merit and shall defeat the concept of Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 15 single assessment order for each of relevant preceding years for assessing 'total income' in case of incriminating material found during search or requisition.” (Emphasis Supplied) 4.10. In the present case, the Revenue has clearly taken a stand that reassessment proceeding were initiated on the basis of information gathered by the Deputy Commissioner of Income Tax (Investigation Wing), Ahmadabad subsequent to search carried on KGN Group of Companies. On perusal of reasons recorded for reopening assessment, we find that in Paragraph 3, it has been recorded that on verification of list of cases of persons who have availed bogus entries it was found that Assessee had also beneficiary and had availed bogus Long Term Capital Gain accommodation entries. It is the contention of the Assessee that verification was carried out by the Assessing Officer during the course of search. The material on record does not support the aforesaid contention advanced on behalf of the Assessee and the Revenue disputes this position. The Revenue has contended that the reassessment proceedings were initiated on the basis of inquiry/investigation conducted after the search proceedings. The stand taken by the Revenue is consistent with the fact that the Assessing Officer took recourse of reassessment proceedings under Section 147 of the Act. Thus, the judgment of the Hon’ble Rajasthan High Court is distinguishable on facts and does not apply to the facts of the present case. 4.11. During the course of hearing Learned Authorized Representative for the Assessee has also placed extensive reliance on the judgement of Jurisdictional High Court in the case of Sejal Jewellary (Supra). On perusal of the said judgment we find that the in that case the Hon’ble Bombay High Court has, in exercise of writ jurisdictional under Article 226 of the Constitution, quashed the proceedings initiated under reassessment proceedings initiated under Section 147 of the Act. In that case also the judgment of the Hon’ble Supreme Court in the case of Abhisar Buildwell Private Ltd. (Supra) Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 16 dealing with the interpretation of provisions contained in Section 153A of the Act and the judgment of Hon’ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal & Ors. (Supra) were taken into consideration. We note that in Paragraph 13 of the said judgment, the Hon’ble Bombay High Court has concluded that from the record produced before the Hon’ble High Court it was clear that: (a) there was a search and seizure action on 04/10/2018, on the business premises of one ‘Shilpi Jewellers Pvt. Ltd.’, which has been the basis for the reopening of the petitioner’s assessment, (b) the reasons for reopening state that certain incriminating evidences (in the form of various loose papers and data back-ups of various electronic devices) were found and seized. (c) search action was against Shilpi Jewellers Pvt. Ltd., its associate concerns, as well as revealed that all these persons had accepted large unsecured loans from various shell/papet the key individuals of the Group. (d) on further enquiries being made, the profiling of the loan creditor companies in ITD Application, indicated that the loan creditor companies/entities who advanced huge loans to Shilpi Jewellers Pvt. Ltd. and its associate concerns, as well as the key individuals of this group, did not have any creditworthiness for extending such huge loans. It was, particularly, recorded that the petitioner/ assessee was part of said group, which had shown loan receipts during the year ended on 31 March, 2012 from a company, viz. M/s Green Valley Gems Pvt. Ltd., which was reported to be a shell/paper company, engaged in Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 17 providing accommodation entries to the beneficiary parties. (e) The reasons for reopening of the assessment were set out in detail, referring to such material and further enquiry which was undertaken in that regard, including materials being gathered in regard to M/s Green Valley Gems Pvt. Ltd. from whom the petitioners had alleged to have taken accommodation entries. (f) It is on the basis of such information (which was certainly not the information borne out or gathered from the return of income), that the the Assessing Officer reached to a conclusion to reopen the assessment, on the ground that the assessee had not explained such loan receipt transactions. Such opinion was formed by the Assessing Officer on the basis that M/s. Green Valley Gems Pvt. Ltd was a shell/paper company. In the aforesaid, the said facts the Hon’ble Bombay High Court in the case of Sejal Jewellary (Supra) had concluded as under: “14. Thus, on the perusal of such reasons, it is quite clear that the provisions of Section 153A providing for \"Assessment in case of search or requisition\" and the provisions of Section 153C, which provide for \"Assessment of income of any other person\", which ordain that recourse be taken to the provisions of Section 153A stand attracted for an assessment to be undertaken.” We have already concluded hereinabove that the relevant material that could form basis of factual findings similar to those returned by the Hon’ble Jurisdictional High Court does not form part of record. The material on record supports the stand taken by the Revenue that the in the facts and circumstances of the present case provisions contained in Section 153C of the Act would not be Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 18 attracted. Therefore, disputed question of fact & law raised by the Assessee for the first time cannot be admitted/adjudicated by this Tribunal. Perusal of the judgment of the jurisdictional High Court in the above case shows that the relief granted by the Hon’ble High Court was based upon the facts peculiar to that case. The scope of powers of the Hon’ble High Court to summon and examine records in writ/supervisory jurisdiction is much wider that the limited scope available to this Tribunal in appellate jurisdiction. As noted hereinabove in the facts of the present case the Tribunal is precluded entertaining the additional ground raised by the Assessee since the same raises a mixed question of fact and law disputed by the Revenue requiring inquiry into fresh material/facts not forming part of the record. At this point we deem it appropriate to refer to Paragraph 22 & 23 of the aforesaid judgment of the Hon’ble Bombay High Court which are set out hereinunder: “22. Applying the principles of law as discussed hereinabove, we are of the clear opinion that the foundation of the present case was certainly a search action which was undertaken by the Revenue against one Shilpi Jewellers Pvt. Ltd. and in such search and seizure action, materials were seized and such materials were further explored and enquired. Such enquiry revealed significant information in regard to M/s. Green Valley Gems Pvt. Ltd., which according to the Revenue had provided accommodation entries to the petitioner, in which it was also revealed that Green Valley Gems Pvt. Ltd. was a shell company. We do not find that the record would indicate something which is not on the basis of such new materials gathered under the search and seizure action under Section 132. If this be the case, then certainly the provisions of Section 153C read with Section 153A would be applicable, as held by the Supreme Court in Abhisar Buildwell (P) Ltd. (supra) when the Court interpreted the effect and purport of Section 153C and 153A, as also held by the Rajasthan High Court in Shyam Sunder Khandelwal (supra). 23. Insofar as Mr. Suresh Kumar's contention supporting the proceedings under Section 147 and 148 of I.T. Act are concerned, Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 19 for the aforesaid reasons, such contention would in fact go contrary to the intention of the legislature as depicted by the provisions of Section 153A and 153C of the I.T. Act. There would not be any difficulty in accepting the proposition as canvassed by Mr. Suresh Kumar, referring to the decision of the Supreme Court in Phool Chand Bajrang Lal (supra), however, the facts in the present case are distinct. There cannot be any doubt on the position in law when the Revenue intends to proceed purely on materials relevant for an action under Section 148 read with Section 147. We have already observed that the provisions of Sections 147, 148 vis-a-vis Section 153A and Section 153 are quite compartmentalized. To avoid any overlapping of these provisions, the legislature in its wisdom has thought it appropriate to provide for an independent effect, to be given under Section 153A read with Section 153C by incorporating the \"non-obstante\" clause, in these provisions, which carves out an exception to any normal/regular action being resorted under Section 147. 24. In this view of the matter, we are of the clear opinion that the impugned notice under Section 147 of the I.T. Act and all actions consequent thereto are required to be held to be without jurisdiction and bad in law. The petition is accordingly allowed in terms of prayer clauses (a) and (b).” (Emphasis Supplied) On perusal of the above, it becomes clear that after examination of record the Hon’ble Bombay High Court had concluded that (a) the foundation of reassessment proceedings was a search action and (b) in the said search & seizure action, materials were seized and such materials were further explored and enquired. Therefore, the Hon’ble High Court was of the view that the material gathered during search was further explored/examined during search proceedings itself. In the present case, we have already concluded hereinabove that the record supports the contention of Revenue that further enquiries were carried out after the search proceedings. There is nothing on record from which even an inference can be drawn to the contrary. Therefore, the judgment of the Hon’ble Bombay High Court in the case of Sejal Jewellary (Supra) is distinguishable on facts and does not advance the case of Assessee. Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 20 4.12. As regards the applicability of non-obstante clause contained in Section 153C is concerned, the same would apply only when the provisions of Section 153C get triggered and therefore, does not have application in the facts of the present case. It is pertinent to note that after considering the ‘non-obstante’ Clause contained in Section 153A of the Act, the Hon’ble Supreme Court had, in the case of Abhisar Buildwell Private Ltd. (Supra), concluded that even in the case where recourse has been taken by the Revenue to the provisions contained in Section 153A of the Act and no addition is made in the hands of the Assessee in a particular assessment year in absence of any incriminating material, the power of the Revenue to initiate proceedings under Section 147 of the Act was saved. Therefore, on the basis of information available and subject to compliance with provisions contained in Section 147 of the Act, the Revenue could take recourse to assessment or reassessment proceedings in the said assessment year. This aspect has been considered and recorded by the Hon’ble Bombay High Court in Paragraph 20 of the judgment in the case of Sejal Jewellary (Supra) in the following manner: “20. It is thus clear that in the event any incriminating material is found during the search, the Revenue necessarily would be required to take recourse to the provisions of Section 153A and in the event no incriminating material found during the search, then the power of the Revenue to have the reassessment under Sections 147/148 of the 1.T. Act stands saved, failing which, the Revenue would be left without remedy. It is on such observations the conclusions as rendered by the Supreme Court and which are relevant to the case in hand, are required to be noted, which reads thus: \"14. In view of the above and for the reasons stated above, it is concluded as under: (i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 21 153A; (ii) all pending assessments/reassessments shall stand abated; (iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and (iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act subject to fulfilment of the conditions as envisaged/mentioned under Sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs.\" Thus, the observation made by the Hon’ble Bombay High Court in Paragraph 20 above on which reliance was placed on behalf of the Revenue were made in the context of Section 153A of the Act. As noted herein above the scheme of Section 153A of the Act differs from the scheme of Section 153C of the Act. The provisions contained in Section 153A of the Act get triggered on search having been conducted under Section 132 of the Act whereas the provision Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 22 contained in Section 153C of the Act (including the non-obstante clause contained therein) are triggered only on satisfaction of certain events/conditions discussed in paragraph 4.7. above. In the present case the said events/conditions were not satisfied. The basis of initiation of reassessment proceedings by the Assessing Officer in the present case was the information received from the Deputy Director of Income Tax (Investigation), Ahemedabad wherein it was stated that during the search proceedings it was revealed that KGN Group of companies (including KGN Enterprises) were involved in providing bogus long term capital gains entries. On subsequent investigation carried by the Investigation Wing details of beneficiaries of the aforesaid accommodation entries was collated. Before initiating reassessment proceedings, the Assessing Officer had verified the returns of income filed by the Assessee. In the reasons recorded, the Assessing Officer had not referred to any reference to the material seized during the course of the search on KGN Group of Companies and had recorded as under: “2. Information has been received from the Dy. Director of Income Tax, (Inv.), Ahmedabad that during the course of search and survey action carried out on KGN Group of Companies on 23/01/2015, it was revealed that this Group is providing bogus Long Term Capital Gain entries in two scrips of M/s.KGN Industries Ltd. and KGN Enterprises Ltd. 3. On verification of the list of cases/persons who have availed bogus entries, it is seen that during the financial year 2011-12 relevant to assessment year 2012-13, Mr. Surendra Garg, who is assessed to tax in this charge has availed LTCG entries details which are as under: Sr. No. Name of the party from whom bogus LTCG entries availed No. of shares Value INR. 1. KGN Enterprises Ltd. 44200 1,87,66,525 4. On the basis of the aforesaid information available with the undersigned, I have reason to believe that income chargeable to tax, as indicated above, to the tune of Rs.1,87,66,525/- or proceedings for reassessment, has escaped assessment with the meaning of section 147 of the IT Act 1961. I am, therefore, Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 23 satisfied that the assessee has failed to disclose ture and complete particulars of its income for the year under consideration. Accordingly, the case is reopened u/s.147 of the Income Tax Act, 1961 for A.Y.2012-13.” 4.13. At this juncture, it would be pertinent to refer to the judgment of Hon’ble Delhi High Court in the case of PCIT Vs. Naveen Kumar Gupta [2024] 168 taxmann.com 574 which was put to the parties during the course of hearing. In that case, the Hon’ble Delhi High Court had, after referring to the judgement of Hon’ble Supreme Court of India in the case of Abhisar Buildwell P. Ltd. (Supra), rejected identical contention raised by the assessee in that case after considering facts similar to the case before us holding as under: “38. The question whether reassessment under Section 147 of the Act can be initiated in cases of material seized or information emanating from a search conducted under Section 132 of the Act or any assets or documents requisitioned under Section 132A of the Act, where the conditions for initiating the assessment under Sections 153A and 153C of the Act are not satisfied, is no longer res integra. 39. In Abhisar Buildwell (P) Ltd.(supra) the Supreme Court had authoritatively held that even in cases where assessment under Section 153A of the Act cannot be initiated on account of the conditions for initiation of assessment / reassessment under the said Section not being satisfied, it is open for the Revenue to make the assessment / reassessment under Section 147 of the Act. This is of course subject to all conditions for such initiation being fully satisfied. 40. xx xx 41. As noted above, the jurisdiction of the AO to reassess the income under Section 153C of the Act is predicated on (a) the AO of the searched person being satisfied that the assets and material found during the search proceedings or requisitioned are incriminating insofar as the assessee (other than the searched person) is concerned; (b) recording its satisfaction to the aforesaid effect; (c) transmitting the same to the AO of the other person (person other than the searched person); (d) the AO of the non-searched person being satisfied that the material information received has a bearing on the determination of the total income; and, (e) the AO of such non searched person Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 24 issuing a notice to commence assessment / reassessment proceedings. Indisputably, if any of the aforesaid conditions are not satisfied, the income of such other person cannot be assessed or reassessed under Section 153C of the Act. According to the Assessee (and as accepted by ITAT), in such circumstances, the AO would also be precluded from initiating the proceedings under Section 147 of the Act. This is the central issue that is required to be addressed. 42 to 49 xx xx. 50. The aforesaid decision was rendered in the contest of Section 153A of the Act. Although, the rationale as set out in the said decision resonate with us, we are unable to concur that issuance of notice under Section 153A of the Act is optional. Once a search has been conducted under Section 132 of the Act or assets, documents or other material is requisitioned under Section 132A of the Act, the AO is required to issue a notice under Section 153A of the Act. This is necessary because in terms of proviso to Section 153A of the Act, the pending proceedings for assessment or reassessment for any of the assessment years falling within the period of six assessment years prior to the date of initiation of the search under Section 132 of the Act or acquisition under Section 132A of the Act, would abate. The said assessments would necessarily be required to be completed under Section 153A of the Act. However, commencement of proceedings under Section 153C of the Act is subject to additional conditions and it was not necessary that a notice under Section 153C of the Act be issued. Section 153B of the Act also stipulates the time limit for completion of assessment in cases under Section 153A of the Act. In terms of Section 153B(1) of the Act, assessment in respect of each of the six years, as referred to in Section 153A(b) of the Act, are required to be completed within the period of two years from the end of the financial year in which the last of the authorization for search under Section 132 of the Act or acquisition under Section 132A of the Act were executed. The assessment in respect of the year relevant to the previous year in which the search was conducted under Section 132 of the Act or requisition made under Section 132A of the Act is also required to be completed within the aforesaid period. 51. It is necessary to note that there is a clear distinction between the provisions of Sections 153A and 153C of the Act. The AO under Section 153 of the Act has the discretion to assume jurisdiction. If the jurisdictional conditions are satisfied, it is not necessary for the AO to assume jurisdiction in such cases. Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 25 In Agni Vishnu Ventures Pvt. Ltd. v. Dy. CIT [2023] 157 taxmann.com 242/460 ITR 438 (Madras), the Madras High Court had highlighted the difference between the provisions of Sections 153A and 153C of the Act. It is relevant to refer to the following passages from the said decision: xx xx 52. xx xx 53. The provision of Section 153C of the Act enables the Assessing Officer to assess or re-assess the income of the assessee where any incriminating assets, material, books of account or documents are found (which either belongs to the assessee a person other than the searched person or contains information pertaining to the assessee), in a search conducted under Section 132 of the Act or requisition made under Section 132A of the Act in respect of another person. However, as stated above, the AO must be satisfied that the assets or material found or information contained in documents and books of account has a bearing on the income of the assessee for the six assessment years immediately preceding the AY relevant to the previous year in which the search was conducted or the requisition under Section 132A of the Act was made1. By its very nature, Section 153C of the Act is an enabling provision, which enables the Assessing Officer to assume jurisdiction to assess/reassess the income of the Assessee, in cases where the jurisdictional conditions as set out in Section 153C are satisfied. The non obstante provision as contained in Section 153C(1) of the Act must necessarily be construed in the aforesaid context. 54 to 57 xx xx 58. In a case where pursuant to search conducted under Section 132 of the Act or requisition made under Section 132A of the Act in respect of another person (searched person), assets, documents or books of account, which either belong to the assessee or contain information pertaining to the said assessee, are found. And, the same are handed over to the AO of the assessee; he would subject to satisfaction of the other jurisdictional conditions stipulated under Section 153C of the Act, having the jurisdiction to make a reassessment/assessment of the income of the assessee under Section 153C of the Act. However, the same does not mean that he is bound to exercise the said jurisdiction. In the event, the AO does not assume it's jurisdiction to proceed with making an assessment/ reassessment Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 26 under Section 153C of the Act, recourse to Section 147/148 is not ousted. The non obstante provision kicks-in only on the AO assuming the jurisdiction under Section 153C of the Act, that is, if the AO exercises its jurisdiction to initiate the machinery provisions of Section 153C of the Act to make an assessment/reassessment of the assessee's income for the stipulated period. The non obstante provisions do no come into play, if the AO does not take recourse to provision of Section 153C of the Act. 59. The non obstante clause as used in Section 153C of the Act cannot be read to completely exclude the provisions of Sections 143 or 147 of the Act in cases where the assessee's income is sought to be assessed inter alia on the basis of the information found during search proceedings. However, it will not be open for the AO to take recourse to Section 147 of the Act, where the AO has taken steps under Section 153C of the Act. Thus, if the conditions for exercise of jurisdiction under Section 153C of the Act are satisfied and the AO issues a notice as required under Section 153C of the Act, any reassessment under Section 147 of the Act would obviously, be impermissible. This is because the Act does not contemplate parallel assessment proceedings. Where the AO is satisfied that the assets, material and documents forwarded by the AO of the searched person under Section 153C of the Act has a bearing on determination of the income of the assessee for any of the years, the AO shall proceed to issue a notice under Section 153C of the Act. By virtue of non obstante clause, the AO is not required to follow the procedural rigours of Section 148 of the Act. Subject to obtaining the approval under Section 153D of the Act, if necessary, the AO is not required to seek any approval from the specified authority, as required under Section 148/151 of the Act for issuing a notice under Section 153C of the Act and can proceed to assess / reassess income for the concerned assessment years. 60. However, if the AO does not take recourse to Section 153C of the Act but proceeds under Section 147 of the Act he would necessarily have to follow the due procedure as specified for initiating such proceedings. 61. The assumption that provisions of Section 153C of the Act precludes any proceeding under Section 147 of the Act by virtue of the non obstante clause, is unpersuasive. The scheme of Sections 153C of the Act indicates that the said provision was enacted to simplify the procedure, while maintaining the necessary safeguards, for Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 27 assessment / reassessment in cases where assets belonging to the assessee or books of account or documents, which contain information pertaining to the assessee are found pursuant to a search conducted under Section 132 of the Act or requisition made under Section 132A of the Act, in respect of a person other than the assessee. This is subject to the same having a bearing on the determination of income of the assessee. The AO is neither require to record reasons for his belief that the income of the assessee for the concerned assessment year has escaped assessment nor does he require to seek further approvals as required under Section 148 of the Act. However, he must be satisfied that the assets seized or requisitioned or the documents, books of account or other material transmitted by the AO of the searched person belongs to or contains information, which has a bearing on the determination of the income of the assessee. The reassessment must be predicated on material held to be incriminating and the income assessed / reassessed must be relatable to the material found as held by this Court in Kabul Chawla and affirmed by the Supreme Court in Abhisar Buildwell (P) Ltd. (supra). 62 to 64 xx xx . 65. In the facts of the present case, the Revenue disputes that a satisfaction note by the AO of the searched person (Jain Brothers) was forwarded to the AO of the Assessee along with the requisite documents. Thus, in the facts of the present case, the jurisdictional conditions to initiate further steps under Section 153C of the Act were not satisfied. However, the AO had received certain information from the AO. A report was also received from the Investigation Wing, Mumbai regarding the Assessee purchasing units of a penny stock during the financial year 2010-11. Based on the aforesaid information, including the information received from the Investigation Wing, Mumbai, the AO issued a notice dated 23.08.2018 under Section 148 of the Act. Admittedly, there is nothing on record to indicate that the AO of the searched person had recorded a satisfaction note and transmitted the relevant material containing information regarding the Assessee to the AO. There is also no material that the AO had on receipt of the said information issued a notice under Section 153C of the Act. Thus, in fact the AO did not assume jurisdiction under Section 153C of the Act. Absent assumption of any jurisdiction, the question of Sections 147, 148 and 149 of the Act being overridden by virtue Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 28 of the non obstante clause of Section 153C of the Act, does not arise. The said clause would be operative only if the AO had in fact assumed jurisdiction under Section 153C of the Act. In that eventuality, recourse to the provisions as named in the opening sentence of Sections 139, 147, 149, 151 and 153 of the Act would be ousted.” (Emphasis Supplied) 4.14. In our view, given the parity in facts, the above judgment is applicable to the present case. We note that in the present case the relevant conditions precedent for invoking provisions contained in Section 153C of the Act were not satisfied. It is not the case of the Assessee that the Assessing Officer had taken recourse to Section 153C of the Act and despite having done the same, proceeded to initiate reassessment proceedings under Section 147 of the Act in the case of the Assessee. It is admitted position that no satisfaction note was prepared and/or forwarded by the Assessing Officer of the searched person to the Assessing Officer of the Assessee. Therefore, the Assessing Officer could not have taken recourse to the provisions contained in Section 153C of the Act. 4.15. In view of the above and taking into consideration the material on record, we reject the contention of contention of the Assessee that the Assessing Officer was precluded from initiating reassessment proceedings under Section 147 of the Act in the facts and circumstances of the present case. 4.16. Thus, in view of paragraph 4.1 to 4.15 above, the Additional Ground raised by the Assessee is dismissed. 4.17. Before parting, we note that there is neither any material on record to suggest nor has there been any allegation that assessing officer of the searched person or Other Person had acted in any malafide or arbitrary manner. The Assessee contended that the proceedings should have been under Section 153C instead of Section 147 of the Act. In our view accepting the aforesaid contention advanced in Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 29 behalf of the Assessee would amount to substitution of opinion of appellate authority in place of opinion of the Assessing Officer of the Assessee but also the opinion of Assessing Officer of the searched persons (to not prepare the aforesaid satisfaction note) and that too without examining the relevant material which does not form part of the record. Therefore, for this reason also the contention raised by the Assessee cannot be accepted. 5. We are also of the view that the Assessing Officer had sufficient fresh tangible material to form a belief that income liable to tax had escaped assessment. The report of the Investigation Wing, coupled with the material gathered by way of verification/inquiry carried out by the Assessing Officer constituted sufficient tangible material to initiate reassessment proceedings in the case of the Assessee. In the present case the return of income was filed by the Assessee for the Assessment Year 2012-2013 was processed under Section 143(1) of the Act and no scrutiny assessment was framed on the Assessee under Section 143(3) of the Act. Therefore, it was irrelevant whether the income has escaped assessment on account of failure on the part of the Assessee to disclose the true and complete facts. During the course of hearing it was contended on behalf of the Assessee that the Assessing Officer had incorrectly stated in the reasons recorded that that Assessee had sold 44200 shares for INR.1,87,66,525/- whereas the Assessee had actually sold 10,050 shares for consideration of INR.59,24,273/- during the Financial Year 2011-2012 (relevant to Assessment Year 2012- 2013), while the balance 35,150 shares were sold during the Financial Year 2012-2013 (relevant to Assessment Year 2013- 2014). It was contended on behalf of the Assessee that this reason alone reassessment proceedings were bad in law. We are not inclined to accept the aforesaid submission advanced on behalf of the Assessee. Given the facts and circumstances of the present case, we are of the view that the aforesaid mismatch pointed out by Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 30 the Learned Authorized Representative for the Assessee, cannot be the sole basis to hold that the Assessing Officer had proceeded to initiated reassessment proceedings on incorrect understanding of facts. We note that the Assessing Officer had identified the Assessee as a beneficiary of accommodation entries taken by the Assessee in respect of sale of 44200 shares of KGN Enterprises. Admittedly, in aggregate 44,200 share of KGN Enterprises were sold by the Assessee during the previous year(s) relevant to Assessment Years 2012-2013 and 2013-2014. In the present case the case of the Assessee for the relevant assessment year(s) was not taken up for regular scrutiny and the return was processed under Section 143(1) of the Act. The reasons recorded clearly stated that the Assessing Officer had reasons to belief that income chargeable to tax had escaped assessment as the Assessee had failed to make true and complete disclosure of the material facts. It is settled that at the stage of issuing a notice under Section 148 of the Act, the Assessing Officer need not establish the escapement with certainty; the Assessing Officer is required to form a prima facie belief that income chargeable to tax had escaped assessment. In Income Tax Officer Vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. [291 ITR 500], the Supreme Court explained that the reasons to believe is different from conclusive proof. In Raymond Woollen Mills Ltd. Vs. ITO [236 ITR 34 (SC)], the Court observed that the adequecy or correctness of the material is not to be investigate at the notice stage; what is required is some material that makes the Assessing Officer’s belief not a mere guesswork. Here, in the present case the Assessing Officer had formed the belief that income chargeable to tax had escaped assessment on the basis of fresh tangible material. It is admitted position that the Assessee had claimed long term capital gains exemption under Section 10(38) of the Act in respect of sale of shares of KGN Enterprises, a script in relation to which adverse findings were recorded in the report of the Investigations Wing as Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 31 well as the orders passed by SEBI which prima facie showed that the trades undertaken in the said script were pre-arranged transactions undertaken to take advantage of provision of Section 10(38) of the Act. In view of the aforesaid, we do not find any merit in the contention advanced on behalf of the Assessee in relation to Ground No.1 and therefore, the same is dismissed. Ground No.2 6. We would now take up Ground No.2 raised by the Assessee challenging the addition of INR.59,24,273/- made under Section 68 of the Act. 6.1. The facts relevant for adjudication of this ground are that the Assessee, a Hindu undivided family, filed return of income for the Assessment Year 2012-13 on 17/07/2012 declaring total income of INR.8,04,805/- after claiming long term capital gains exemption of INR.59,21,761/- under Section 10(38) of the Act in respect of sale of shares of KGN Enterprises. The return of income was processed under Section 143(1) without scrutiny. Subsequent, information was received from the Directorate of Income Tax (Investigation), Ahmedabad that during a search on the KGN Group on 23/01/2015, it was uncovered that certain companies (including KGN Enterprises) were being used to provide bogus long term capital gains entries to beneficiaries in order to evade taxes. It was discovered that the Assessee was one of the beneficiaries of such transaction having claimed long term capital gains exemption as aforesaid. Acting on the said information, the Assessing Officer recorded reasons to believe that income chargeable to tax had escaped assessment for the Assessment Year 2012-2013. After obtaining approval from the competent authority, the Assessing Officer issued a notice under Section 148 on 31/03/2018, initiating re-assessment proceedings. In response, vide Letter dated 03/04/2017, the Assessee submitted that the return of income filed on 01/04/2017 be treated as return Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 32 of income filed in response to the notice under Section 148 of the Act. Thereafter, the Assessee filed response/submission giving details of the transactions. On perusal of the same, the Assessing Officer noted that the Assessee had sold shares of KGN Enterprises and earned long term capital gain of INR.59,21,761/- which was claimed exempt under Section 10(38) of the Act. Whereas as per the information received from the Deputy Director of Income Tax (Investigation), Ahmedabad data obtained from various sources was verified and analysed by the Assessing Officer to arrive at a conclusion that exempt long term capital gain of INR.59,21,761/- was disclosed by the Assessee in the return of income for the Assessment Year 2012-2013, by undertaking the purchase and sale of shares of KGN Enterprises in a pre-arranged manner. The Assessing Officer noted that the Assessee had mainly traded in single script (i.e. KGN Enterprises). The Investigation carried out by Deputy Director of Income Tax (Investigation), Ahmedabad in the case of KGN Enterprises (enclosed as Annexure 'A' to the Assessment Order), showed that the price of the aforesaid script was manipulated during the concerned period and the shares were traded at a price much higher than the actual price of shares. The said company was dysfunctional and its registered office was closed. Considering the overall facts, summons under Section 131 of the Act were issued on 08/12/2017 to record the statement of the Assessee. The Assessee complied with and his statement was recorded. Thereafter, a show-cause notice, dated 18/12/2017, was issued to the Assessee, requiring the Assessee to show cause as to why exemption claimed under Section 10(38) of the Act should not be rejected and why the sale proceeds should not be treated as unexplained cash credit under Section 68 of the Act. In response to the aforesaid notice, the Assessee filed Reply on 22/12/2017, submitting that the Assessee has purchased 10,050 shares of KGN Enterprises Ltd. at INR.2,512/- and the same for INR.59,24,273/- Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 33 during the relevant previous year. The long term capital gain of INR.59,21,761/- earned by the Assessee was claimed to be exempt under Section 10(38) of the Act. The sale of 44,200 shares for consideration of INR.1,87,66,525/- stated in the reasons recorded for re-opening the assessment was factually incorrect. The shares were purchased in off market transaction by making payment by account payee cheque, subsequently the said shares were dematerialized, and sold through recognized stock exchange, and sale consideration was received through banking channel. Therefore, the transaction cannot be regarded as non-genuine. However, the Assessing Officer was not convinced and therefore, proceeded to disallow the capital gains exemption of INR.59,21,761/- claimed by the Assessee. 6.2. Being aggrieved, the Assessee carried the issue in appeal before the Tribunal challenging the addition on merits. However, the CIT(A) agreed with the Assessing Officer and declined to grant any relief in relation to addition of INR.59,21,761/- made by the Assessing Officer holding the same to be as unexplained cash credit under Section 68 of the Act and disallowing of long term capital gains exemption claimed by the Assessee under Section 10(38) of the Act. 6.3. Being aggrieved, the Assessee has carried out in appeal before the Tribunal by way of Ground No. 2 raised in the present appeal. 6.4. We have given thoughtful consideration to the rival submissions. 6.5. The Assessee has set up a case that the transactions of purchase and sale entered into by the Assessee in respect of shares of KGN Enterprises were genuine and in support the Assessee has relied upon following documents/details: - Letter filed before the Assessing Officer dated 21/11/2017 (Page No.3 to 4 of the Paper Book) Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 34 - Demat Account (Page no.5 to 6 of the Paper Book) - Contract notes of broker (Page No.7 to 10 of the Paper Book) - Bank Statement(relevant pages) (Page No.11 to 12 of the Paper Book) - Bill for purchase of shares (Page No. 13 of the Paper book) On the basis of above, it was submitted that the Assessee has discharge the initial onus cast upon the Assessee under Section 68 of the Act to explain nature and source of credit in the books of accounts of the Assessee for the relevant previous year on account of sale of shares of KGN Enterprises Ltd. 6.6. We do not find merit in the above submission advanced on behalf of the Assessee in view of the reasons set out hereinafter. 6.7. It is admitted positions that the Assessee has undertaken purchase and sale of shares of KGN Enterprises Ltd. According to the Assessee the shares of KGN Enterprises were purchased in off market transactions on 11/04/2009 through stock broker Manoj Securities. On perusal of material on record, we find that the Assessee has placed on record only a Confirmation, Letter dated 11/04/2009, which reads as under: “Sureder Garg HUF 2247/B Hill Drive Phoolwadi Chock, Bhavnagar – 264002 Sir We have sold 96000 Shares (Ninety Six Thousand only) of KGN Enterprises Ltd. in Physical Form for Rs.24,000/- (Rupees Twenty Four Thousand only). For Manoj Securities Authorized Signature Enclosed please find Shares” 6.8. Thus, Assessee had taken a stand that the Assessee had paid purchase price of INR.0.25 per share for purchasing 96000 Shares Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 35 on 11/04/2009. It has also been submitted on behalf of the Assessee that the purchase consideration was paid by cheque. However, on perusal of bank statement, we find that the first transaction reported therein pertains to 03/09/2012. Thus, apart from a copy of abovesaid Confirmation Letter, dated 11/04/2009, issued by Manoj Securities there is nothing on record to corroborate that the Assessee had purchase 96000 shares of KGN Enterprises on 11/04/2009 and discharge purchase consideration by way of cheque. In view of the aforesaid, the judgment of Hon’ble Bombay High Court in the case of Principal Commissioner of Income Tax -3, Mumbai Vs. Ziauddin A. Siddique [IT Appeal No. 2012 of 2017, dated 04/03/2022], and Principal Commissioner of Income Tax – 31, Mumbai Vs. Indravadan Jain, HUF [2023] 156 taxmann.com 605 (Bombay)[12/07/2023] would not have application to the facts of the present case. As in the present case the purchase of shares was made through off market transactions (and not through stock exchange). In the case of In the case of Ziauddin A. Siddique (Supra), in Paragraph 2 it has been recorded as under: “2 we have …… there is a finding of fact by the Tribunal that the transaction of purchase and sale of the shares of the alleged penny stock of shares of Ramkrishna Fincap Ltd. (“RFL”) is done through stock exchange and through registered Stock Brokers …….” (Emphasis Supplied) Similarly in the case of Indravadan Jain, HUF (Supra), in paragraph 4 it has been recorded as under: “4. The A.O. did not accept ..... The tribunal while dismissing hte appeals filed by the Revenue also observed on facts that these shares were purchased by respondent on the floor of Stock Exchange and not from the said broker, deliveries were taken, contract notes were issued and shares were also sold on the floor of Stock Exchange. The ITAT therefore, in our view, rightly concluded that there was no merit in the appeal”. (Emphasis Supplied) 6.9. Thus in both the above cases, the Hon’ble Bombay High Court had observed that the shares were purchased through stock exchange Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 36 and not from brokers. It is not even the case of the Assessee that the shares of KGN Enterprises were purchased through stock exchange. We note that as per the report of the Investigation Wing, KGN Enterprises initially got listed on Vadodara Stock Exchange in 1996. Thereafter, the Shares of KGN Enterprises Ltd. were relisted on Bombay Stock Exchange on 27/12/2011. Therefore, it is evident that the shares of KGN Enterprises were purchased at a time when the shares were not even listed. 6.10. During the course of hearing it was contended on behalf of the Assessee that the Assessing Officer had not doubted the purchase and had made the additions by merely doubting the sale transactions. We do not find merit in the aforesaid contentions advanced on behalf of the Assessee since the Assessing Officer had recorded that the transactions of purchase and sale of shares by the Assessee was a pre-determined transaction undertaken to take benefit of the long term capital gain exemption available under Section 10(38) of the Act. 6.11. It is admitted position that 96000 shares of KGN Enterprises Ltd. were dematerialized and credited to the D-mat Account of the Assessee on 31/03/2011. During the Assessment Year 2012-2013 Assessee had sold 10,500 equity shares for a consideration of INR.59,24,273/-. Thus, the Assessee had sold share of KGN Enterprises Ltd. at the selling price of INR.564.20 per share as against the purchase price of INR.0.25 per share and had claimed Long Term Capital Gains exemption of INR.59,21,761/- under Section 10(38) of the Act in respect of sale of 10500 equity shares of KGN Enterprises Ltd. for the Assessment Year 2012-2013. The contention of the Assessee is that the transactions of sale of shares of KGN Enterprises are genuine transactions and in support of the same the Assessee has placed reliance upon copy of Demat Account, bank statement and contract notes issued by the share Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 37 broker. On perusal of the contract notes placed at Page No.7 to 10 of the Paper Book, We find that around 25 trades were executed on behalf of the Assessee between 12/01/2012 and 19/12/2012. On perusal of the aforesaid trades we find that the maximum difference between ‘Order Time’ and ‘Trade Time’ for 25 trades was less than 60 seconds with most of trades having been executed between 0 to 15 seconds. Thus, there was virtually no time difference between the ‘Order Time’ and ‘Trade Time’. This clearly supports the contention of the Revenue that the trades were executed in a pre- arranged manner. 6.12. We note that the Assessing Officer had enclosed with the Assessment Order, a copy of Report received from the Investigation Wing. On perusal of the same we find that the Investigation Wing had carried out thorough investigation into the affairs of the KGN Enterprises and had discovered that KGN Enterprise was operationally dysfunctional, its registered office was closed, the details of shareholder was not credible and the shares were being traded at BSE an artificially inflated price. In this regard, the Investigation Wing has placed reliance upon the findings in search and survey actions carried out in the case of various groups involved in concerted action. The Investigation Wing had also taken cognizance of the orders passed by the Securities & Exchange Board of India indicting parties named therein of concerted market action and manipulating market price of shares of KGN Enterprises. The aforesaid clearly showed that during the relevant period the trades undertaken in the shares of KGN Enterprises were at a price manipulated by the parties identified by Investigation Wing and Securities and Exchange Board of India (SEBI). Therefore, the contention of the Assessee that the Assessing Officer made the additions under Section 68 of the Act by merely relying upon the high share price at which the shares of KGN Enterprises were sold by the Assessee is factually incorrect. Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 38 6.13. During the course of hearing, it was contended on behalf of the Assessee that the Assessee was not confronted with the material gathered by the Assessing Officer during the assessment proceedings and that the Assessee was not granted opportunity to cross-examine the third parties whose statements were recorded by the Investigation Wing. In this regard, we note that the Assessing Officer had relied upon the report of the Investigation Wing and order passed by SEBI, both of which are available on the in public domain. We find that the Assessing Officer had also annexed with the Assessment Order, a copy of the Investigation Wing Report, and therefore, the Assessee had the opportunity to deal with the same to during the appellate proceeding before the CIT(A). As regards opportunity of cross-examination of the persons whose statements were recorded by the Investigation Wing is concerned, we find that the denial of the same has not resulted in any prejudice to the Assessee as the findings returned by the Assessing Officer and the CIT(A) are not solely based upon such statements. In our view, even if the statements are not taken into consideration, the Assessee would be in the same position since the Assessee had failed to discharge the onus cast upon by Section 68 of the Act to provide explanation regarding the nature and source of credit. Further, the Assessing Officer had carried out independent enquiry and verification. In this regard we find that the Assessing Officer had relied upon the data gathered from the BSE regarding the trades under consideration and the exit providers1. On perusal of Assessment Order, we find that the Assessee was not confronted with the aforesaid data or information on which reliance was placed by the Assessing Officer. Therefore, only to this extent we find merit in the contention advanced on behalf the Assessee that the Assessee was not confronted with the aforesaid material/data relied upon by the Assessing Officer. We also mind merit in the contention 1 Refer to Paragraph 18 of the Assessment Order for the Assessment Year 2012-2013 Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 39 advanced by the Learned Authorised Representative for the Assessee that that while confirming the additions made by the Assessing Officer, the CIT(A) had incorrectly placed reliance upon the findings/discussion in the report of the Investigation Wing in relation to KGN Industries Limited, the other entity of KGN Group engaged in manufacturing and supply of castor oil derivatives 2 which are not relevant to the facts of the present case. 6.14. We have hereinabove (in Paragraph 6.7 to 6.12) identified various infirmities in the documentary evidence furnished by the Assessee to arrive at the conclusion that the even by filing the documents/details forming part of the record, the Assessee has failed to discharge the onus case upon the Assessee under Section 68 of the Act. At the same time was have also noted in paragraph 6.13 above that some of the material/data relied upon by the Assessing Officer was not put to the Assessee. Therefore, keeping in view the overall facts and circumstances of the present case, we deem the opportunity to the Assessee to place on record the complete bank statement to establish that the consideration for acquiring shares of KGN Enterprises was made through the banking channel as well as to bring on record relevant material to discharge the onus cast under Section 68 of the Act and to meet the infirmities pointed out by this Tribunal hereinabove in Paragraph 6.7 to 6.12 above failing which the Assessee would be at liberty to drawn adverse inference against the Assessee. At the same time the Assessing Officer is also directed to confront the Assessee with the relevant data gathered from BSE and relied upon during the assessment proceedings, including the names of the exit providers and copy of orders passed by SEBI. It is clarified that the Assessing Officer would be at liberty to carry out such enquiry/investigation as Assessing Officer may deem for adjudication of the issue as per as 2 Refer to Paragraph 6.3 of the CIT(A) Order for the Assessment Year 2012-2013 Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 40 per the aforesaid directions. In terms of the aforesaid addition of INR.59,24,273/- made by the Assessing Officer is set aside and issue raised in Ground No.2 is restored back to the file of Assessing Officer. Accordingly, Ground No.2 raised by the Assessee is treated as allowed for statistical purpose. ITA No.583/Mum/2024 [Assessment Year 2013-2014] 7. Now we would take up appeal preferred by the Assessee for the Assessment Year 2013-2014 directed against the Order, dated 31/01/2024, passed by the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as the ‘CIT(A)’], whereby the Ld. CIT(A) had partly allowed the appeal of the Assessee against the Assessment Order, dated 28/12/2018, passed under Section 143(3) read with Section 147 of the Act. 8. The Assessee has raised following grounds of appeal in ITA No.583/Mum/2024 [Assessment Year 2013-2014] : “1. The re-opening of the assessment of the appellant by the issue of notice under section 148 without satisfying the jurisdictional conditions precedent to assuming jurisdiction under section 147 is without jurisdiction and bad-in-law and consequently, any assessment made on the basis of the notice which is bad-in-law may kindly be annulled. 2. On the facts and in law, the Learned Commissioner (Appeals) had erred in confirming the addition of Rs.1,28,00,567/- being the sale proceeds of shares by treating the same as unexplained cash credit under section 68 of the I.T.Act. Under the facts and circumstances of the matter, he ought not to have confirmed the said addition of Rs.1,28,00,567/-.” Additional ground “1. The notice u/s.148 of the Act is bad in law as the reopening is pursuant to the search of third party, and therefore the provisions of section 153C of the Act ought to have been invoked.” Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 41 9. During the course of hearing both the sides made submissions identical to those made in relation to grounds raised in appeal for the Assessment Year 2012-2013. Both the sides had agreed that our finding/adjudication on the grounds raised in appeal for the Assessment Year 2012-2013 shall apply mutatis mutandis to grounds raised in appeal for the Assessment Year 2013-2014. Accordingly, keeping in view identical facts and circumstances, and adopting the reasoning given while adjudicating ITA No.300/Mum/2024 hereinabove, we proceed to adjudicate the ground raised in the present appeal. 10. Accordingly, in view of the Paragraph 4 to 5 Additional Ground and Ground No. 1 raised by the Assessee is dismissed. As regards Ground No.2 raised by the Assessee is concerned, in terms of directions identical to those issues for Assessment Year 2012-2013 in Paragraph 6.1 to 14 above, the addition of INR.1,28,00,567/- made by the Assessing Officer is set aside and issue raised in Ground No.2 is restored back to the file of Assessing Officer. Accordingly, Ground No.2 raised by the Assessee is treated as allowed for statistical purpose. Thus, Ground No.2 raised by the Assessee is treated as allowed for statistical purpose. 11. In result, the both the appeals preferred by the Assessee is in ITA No.300/Mum/2024 [Assessment Year 2012-2013] and ITA No.583/Mum/2024 [Assessment Year 2013-2014] are partly allowed. Order pronounced on 02.01.2026. Sd/- Sd/- (Padmavathy S.) Accountant Member (Rahul Chaudhary) Judicial Member मुंबई Mumbai; िदनांक Dated : 02.01.2026 Milan,LDC Printed from counselvise.com ITA No.300&583/Mum/2024 Assessment Year 2012-2013 & 2013-2014 42 आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant 2. ŮȑथŎ / The Respondent. 3. आयकर आयुƅ/ The CIT 4. Ůधान आयकर आयुƅ / Pr.CIT 5. िवभागीय Ůितिनिध ,आयकर अपीलीय अिधकरण ,मुंबई / DR, ITAT, Mumbai 6. गाडŊ फाईल / Guard file. आदेशानुसार/ BY ORDER, सȑािपत Ůित //True Copy// उप/सहायक पंजीकार /(Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai Printed from counselvise.com "