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TMI Blog2017 (7) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction for the issue of notice there-under and, accordingly, the impugned assessment, framed u/s. 143(3) r/w s. 153A, is bad in law. It is not any seized material belonging to, but only that which has a bearing on the determination of total income of, such other person, that shall give rise to the special jurisdiction envisaged by the provision. The same only seeks to take the circumstance of the seized material found in search in respect of the assessee to its logical conclusion, without which the provision becomes open ended and, accordingly, liable to be regarded as arbitrary. Legislative intent is to be the foundation of any interpretative exercise. Again, it cannot be lost sight of that the earlier assessment may be, as in the instant case, under verification procedure, i.e., u/s. 143(3) or u/s. 144. And, therefore, in the absence of any such caveat or condition in the provision, the ensuing assessment would only be a review, impermissible under the scheme of the Act - See M/S. KELVINATOR OF INDIA LIMITED [ 2010 (1) TMI 11 - SUPREME COURT] and KALYANJI MAVJI AND CO. [ 1975 (12) TMI 2 - SUPREME COURT] - Decided in favour of assessee. - ITA No. 1148/Mds/2015 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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. 3. Opening the arguments for and on behalf of the assessee, it was submitted by the ld. Authorized Representative (AR), the assessee s counsel, that there was no seized material found during the search u/s. 132 of the Act in the case of Vishwakarma Mines Building Materials Pvt. Ltd. (VMPL) on 21.06.2011 having a bearing on the determination of total income of the assessee. This is as only a copy of the assessee s audited final accounts, i.e., balance sheet and annexures thereto, were found during search and subject to seizure. The same stand already furnished as a part of the assessee s return of income filed on 30.09.2008 and subject to assessment u/s. 143(3) vide order dated 13.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. (Vishwakarma group) on 21-06-2011 the following documents belonging to 'M/s. Kaivallya Entertainment Pvt. Ltd. were seized from the premises of M/s. Vishwakarma Mines Building Materials Pvt. Ltd.: Documents belonging to M/s. Kaivallya Entertainment Pvt. Ltd. were seized vide ANN/SSK/LS/S-1 (final a/cs of F.Y.08-09 to 10-11). In view of the above, I am satisfied that the case of M/s. Kaivallya Entertainment Pvt. Ltd. is liable to be assessed u/s 153C. Notice u/s. 153C issued. Sd/- (S.MOHD MUSTAFA) Deputy Commissioner of Income Tax, Central Circle III (1), Chennai Notice u/s. 153C r/w s. 153A served on 16/08/13 by Post Ack. Filed in 2012-13 folder. Clearly, there is, firstly, no document apart from the final accounts (for the relevant years), including the relevant previous year, i.e., f.y. 2007-08 (even though the note refers to the years as FY 2008-09 to 2010-11 (i.e., excludes FY 2007-08, the relevant previous year). Further, there is, again, no reference in the satisfaction note as to the basis of the AO s satisfaction of the said accounts as having a bearing on the assessee s total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking s. 153C, or regarding the ingredients of the said provision, as satisfied. There has been thus no valid assumption of jurisdiction for the issue of notice there-under and, accordingly, the impugned assessment, framed u/s. 143(3) r/w s. 153A, is bad in law. While the AO did not address this issue, i.e., as to jurisdiction, which could perhaps be for the reason that the same was not raised by the assessee before him, the ld. CIT(A), before whom this issue was raised per Gd. No.3, proceeded on the basis that the assessee is the person searched, so that the search or the requisition is itself sufficient for assuming jurisdiction for framing an assessment there-under (refer para 8 (through sub-paras 8.1 to 8.2.9), at pgs. 14-25 of the impugned order). The same, as would be apparent from the foregoing narration of facts and the material on record, is without basis in fact and in law. We are conscious, we may clarify, that the condition that the Assessing Officer is satisfied that the books of accounts or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person, stands inserted by Finance (No.2) Act, 2014 w.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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