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TMI Blog2018 (11) TMI 1694X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer issued notice u/s 148 to reopen the assessment. Therefore, in view of the non-obstante clause begin with section 153A, the Assessing Officer has no jurisdiction to issue notice u/s 148 reopen the assessment We are of the view that the AO wrongly initiated the proceedings u/s 148 and completed the assessment u/s 143(3) rws 147 of the Act, instead of initiating the proceedings u/s 153C of the Act. Therefore, we set aside the order of CIT(A) and quash the assessment made by the AO u/s 143(3) rws 147 of the Act. Since the very assessment is quashed, the additions made in such assessment automatically get cancelled. - Decided in favour of assessee - 1695/H/17, 1696/H/17, 1697/H/17, 1698/H/17, 1702/H/17, 1703/H/17, 1704/H/17, 1705/H/17 - - - Dated:- 29-11-2018 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER For the Assessee : Shri K.C. Devdas For the Revenue : Smt. S. Praveena ORDER PER BENCH: All these appeals filed by different assessees as well as revenue are cross appeals directed against the orders of CIT(A) 2, Hyderabad, all dated, 30/06/2017 for AY 2008-09. As identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of hearing. 2.1 The assessees have also filed following additional grounds of appeal, which are common in all the appeals: 1. The entire assessment proceedings u/s 143(3) read with section 147 are void ab initio and without jurisdiction as the entire proceedings emanated from Search and Seizure Operations u/s 132 of the Income Tax Act, 1961 in the hands of M/s CRK Infrastructure Developers Pvt Ltd on 21st March, 2014 and therefore, the appropriate proceedings that ought to have been initiated was section 153C of the Income Tax Act, 1961 and not u/s 147 of the Act. 2. The provisions relating to 153C proceedings arises out of 153A proceedings under Income Tax Act, 1961 are special provisions and therefore, the initiation of proceedings u/s 148 of the Income Tax Act, 1961 in the appellant's case is bad in law, invalid and without jurisdiction. 3. As the said additional grounds are legal grounds, wherein, the facts are on record and facts do not require fresh investigation, following the decision of Hon ble Supreme Court in the case of National Thermal Power Co., Limited Vs. CIT 229 ITR 383 (SC), we admit the said additional ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bench has held as under: 06. We have heard the rival contentions and perused the record. In our view the scope of Section 153Cand 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 if there is any contradiction between Sections 153C and 148 ,in that eventuality, Section 148 shall give way to Section 153C. There is a reason for saying so because if a notice u/s.153C is issued to the third party (assessee), then the AO may assess or reassess the income of the assessee for a period of six years whereas this is not the position in case of Section 148. Further u/s.153C of the Act, the assessment / reassessment can only be made based on the satisfaction recorded by the AO or the searched person as well as of the third party and further addition can only be made by the AO in respect of the assessment year for which the incriminating documents were found with the search 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with a reasonable belief coupled with some material which suggest the escapement of income. Once the conditions precedent for assumption of jurisdiction to commence the reassessment proceedings, he has to cross the hurdles attached with reassessment by way reasons for reopening of assessment, time limit for issue of notice and provision for obtaining sanction of higher authority in certain circumstances. Under the provisions of section 153A to 153C these hurdles are cleared by using the non abstante clause in the said section. In other words, under the new provisions of section 153A, the AO is not required to satisfy these conditions before issue of notice. The only requirement is that there should be a search action u/s 132 or books of account, other documents or any other asset are requisitioned under section 132A. Therefore, we are of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assessing Officer has to assess or reassess the total income of those six assessment years. The word shall used in section 153A made it clear that the Assessing Officer has no option, but to issue notice and proceed thereafter to assess or reassess the total income. In the instant case, the Assessing Officer issued notice u/s 148 to reopen the assessment. Therefore, in view of the non-obstante clause begin with section 153A, the Assessing Officer has no jurisdiction to issue notice u/s 148 reopen the assessment of those six assessment year which falls within the exclusive jurisdiction of section 153A. Though, both provisions of the Act empowers the Assessing Officer to assess or reassess the income escaped from assessment, both sections are dealing with different situations. Section 147 comes into operation whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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