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TMI Blog2013 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ten by the assessee. It, of course, had certain references to the estimations and expenditure, etc. of the properties belonging to the assessee - When the very foundation for instituting the proceedings by the Assessing Officer was missing, the consequential actions and orders must fail - Decided against Revenue. - Tax Appeal No. 444 of 2013 With Tax Appeal No. 445 of 2013 - - - Dated:- 6-5-2013 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mrs. Mauna M. Bhatt, Advocate ORDER (Per : Honourable Ms. Justice Sonia Gokani) 1. Following are the questions raised by the Revenue challenging the order of the Income Tax Appellate Tribunal dated 26.10.2012: (i) Whether on the facts and in the circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contentions of the assessee. However, it held that assessment had been framed under section 143(3). The cross appeals were filed by the department and the assessee against such order before the Tribunal. The Tribunal relied on its own decision in case of this very assessee and held in favour of the assessee and against the department. 4. It is urged before us strenuously by the senior counsel Shri Bhatt that the Tribunal erred in not appreciating that the assessment does not fall within six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted. This being beyond six assessment years as mentioned, same is to be construed as framed under section 143(3). 5. Having cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person in accordance with the provisions 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 subsection (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. Central issue in the present case is, can it be stated that any documents seized or requestioned during search operations belonged to the assessee. In this regard, factual conclusion of the Tribunal which are not seriously in dispute need to be noted. In the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isitioned under section 132A after the 31st day of May, 2003. Section 153B lays down the time limit for completion of assessment under section 153A. Section 153C which is similarly worded to section 158 BD of the Act, provides that where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in Section 153A he shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person. However, there is a distinction between the two provisions inasmuch as under section 153C notice can be issued only where the money, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner. It is not even the case of Revenue that the said three documents are in the handwriting of the petitioner. In the circumstances, when the condition precedent for issuance of notice is not fulfilled any action taken under section 153C of the Act stands vitiated. We find that in the present case, very similar situation has arisen. The document on the basis of which the Assessing Officer initiated proceedings under section 153C of the Act was admittedly not written by the assessee. It, of course, had certain references to the estimations and expenditure, etc. of the properties belonging to the assessee. Nevertheless, we cannot hold that such document belonged to the assessee. When we find that the very foundation for insti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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