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TMI Blog2018 (2) TMI 1830X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person belonging to the third party. Therefore in our view the finding of the CIT(A) is in accordance with law, as the proceeding should have been initiated under section 153C of the Act, as it were based on material found during the search from the premises of searched person other than assessee and not under section 148 of the Act. In the matter of Gudwill Housing Ltd (2014 (4) TMI 478 - KARNATAKA HIGH COURT) was a decision on Section 158BD under the old Act. There is a significant difference in the construction, language and content of both the provisions i.e Section 158BD under the old Act and section 153C of new Act of 1961. Section 153C of 1961 Act, starts with a non-obstante clause, whereas this non-obstinate provision was not there in Section 158BD. Therefore in our considered opinion the decision relied upon by the Revenue is not applicable to the facts and circumstances of present case. We hold accordingly. - I.T.A Nos.1154 And 1155/Bang/2015 - - - Dated:- 21-2-2018 - SHRI. JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER For The Assessee : Shri. V. Chandrashekar, Advocate For The Revenue : Smt. Padmameenakshi, JCIT ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name and signature of the appellant. Under these circumstances the ent ire assessment must necessari ly be commenced and completed u/s 153C and not u/s 148 as has been done in this case. I find merit in the stand taken by the appellant. A satisfaction to the effect that material seized during the search belongs to the appellant ought to have been arrived at and proceedings u/s 153C read with section 153A ought to have been commenced against the appellant. Recourse to section 147 is expressly prohibited by the fact that section 153C starts with a non obstante clause and specifically prohibits recourse to section 147 and other sections. The same is reproduced under: Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisit ioned belongs or belong to a per son 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, insofar as the procedure that is required to be followed. Section 147 contemplates that if the Assessing Officer has reasons to believe that there is escapement of income, then notice can be issued under Section 148 of the Act. Section 158BD of the Act provides that if the Assessing officer is satisfied that any undisclosed income belongs to any person other than the person with respect to whom search was made under Section 132 of the Act, upon such satisfaction, is required to forward the relevant documents, papers, etc. to the Assessing Officer having jurisdiction over such other person in respect of whom the undisclosed income has been disclosed for block assessment. Thus, it is open to the Assessing Officer to proceed against the assessee, if he has reason to believe that his income has either escaped the assessment or whose undisclosed income is unearthed during the search conducted under Section 132 of the Act of the premises of some other person. From plain reading of these provisions, we do not find any impediment in proceeding against such person by issuing notice under Section 148 of the Act. In other words, Chapter XIV-B do not preclude the Assessing Officer to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the relevant provisions in details has come to the conclusion that in the above situation, provisions of sec. 153C were applicable which excludes the application of sections 147 and 148 of the Act. The ITAT held the notice issued under sec. 148 and proceedings under sec. 147 as illegal and void ab initio. It was held that Assessing Officer having not followed procedure under sec. 153C, reassessment order was rightly quashed by the Learned CIT(Appeals). In the present case before us, it is an admitted fact, as also evident from the reasons recorded and the assessment order that the initiation of reopening proceedings was made by the Assessing Officer on the basis of information received from the Directorate of Income-tax (Inv.) on the basis of search seizure operation conducted at the premises of Rock Land Group of Cases and the documents related to the assessee found during the course of search were made available to the Assessing Officer of the present assessee. We thus respectfully following the decision of Co-ordinate Bench of the ITAT in the case of ACIT vs. Arun Kapur 140 TTJ 249 (Amritsar) hold that provisions of sec. 153C of the Act were applicable in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found at premises of M/s. Today Homes Infrastructure (P.) Ltd. pertaining to M/s. P.R. Infrastructure Ltd. and not the assessee. In this regard, we may point out that the contention raised by the learned Departmental Representative is factually incorrect and contrary to the available records of seized documents specifically mentioned in the assessment order dt. 30th Dec, 2008. In view of the above factual discussion, we do not find any merit and substance in the contention of the learned Departmental Representative. Therefore, we uphold the order of the CIT(A) and dismiss the ground Nos. 1 to 4 of the appeal. On the basis of the above it was submitted that once incriminating document was recovered during the course of search then the proceedings should have been initiated u/s.153C and not u/s.148 of the Act. Therefore the decision rendered by the CIT (A) was in accordance with law. 06. We have heard the rival contentions and perused the record. In our view the scope of Section 153C and 148 are clear from the bare reading of the two provisions insomuch as Section 153C it starts with Notwithstanding nothing containing in Section 139, 147, 148, 149, 151 and 153 . Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduction of new sections, i.e. section 153A to 153C, the single block assessment concept was done way with the new scheme of assessment of search cases where the Assessing Officer is to assess or reassess the total income of each of the assessment years falling within the period of six assessment years immediately preceding the assessment year in which the search is conducted. Therefore, under the new scheme, the Assessing Officer is required to exercise the normal assessment powers in respect of the previous year in which the search took place. From these facts, one thing is clearly emerged that both i.e. earlier concept of Block assessment and the new scheme of assessment is separate provisions created for assessment of search cases where the search is conducted u/s 132 or requisition was made u/s 132A of the Act. 12. Under the provisions of section 147, the Assessing Officer is having power to re-open the assessment, if he is of the opinion that the income chargeable to tax has escaped assessment. Before doing so, the Assessing Officer should satisfy himself that, there is material which suggests that there is an escapement of income. The AO can exercise these powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer by way of sections 148 to 153 to reopen the assessment u/s 147 has been removed by the non abstante clause used in section 153A. 14. In the present case on hand, admittedly, the Assessing Officer has reopened the assessment based on a search conducted in a third party case. The AO formed the opinion based on the statement recorded from the assessee, consequent to post search proceedings taken up by the DDIT(Inv), which shows undisclosed income which is the very basis of reopening the assessment. The search is conducted on 22-8-2008 which comes under the assessment year 2009-10. The Assessing Officer reopened the assessment year 2008-09, which is falling within those six assessment years immediately preceding the assessment year in which search is conducted. The assessee case falls within the provisions of section 153C, as the incriminating document seized in the case of search in another case. The Assessing Officer, on satisfying the above condition is under obligation to issue notice to the person requiring him to furnish the return for the six assessment years immediately preceding the assessment year in which search is took place. Thereafter, the As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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