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TMI Blog2023 (8) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... .Archana Sinha @ Archana Shahi, Sr. S.C. Mr. Alok Kumar, Advocate JUDGMENT ( Per : HONOURABLE THE CHIEF JUSTICE ) Two writ petitions are filed against proceedings arising from a requisition made under Section 132 of the Income Tax Act 1961(for brevity, 'the Act'). 2. CWJC No. 1965 of 2021 seeks release of cash amounting to Rs. 98,50,000/- requisitioned and seized by the Income Tax Department on 02.06.2017, which was originally seized from the petitioner on 01.06.2017 by the Directorate of Revenue Intelligence. The petitioner contends that withholding of the seized cash without any demand raised, tantamount to violation of statutory provisions contained in Section 132B(3) of the Act. A declaration is sought, as to the expiry of limitation of 21 months, as prescribed under Section 153B(a) of the Act, from the end of the financial year, in which the last of the authorizations was executed. There is also a claim for interest on the amounts withheld so far. 3. CWJC No. 17372 of 2021, on the very same ground of limitation, seeks a writ of certiorari against the notices issued under Section 148 of the Act for assessment years 2013-14 to 2018-19, which is also based on the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax v. Abhisar Buildwell P. Ltd.; [2023] 454 ITR 212(SC) and Union of India v. Exide Industries Ltd.; [2020] 425 ITR 1 (SC). The first two decisions to bring home the point of limitation under Section 153A & 153B and the last cited, insofar as the rigor brought in with a non-obstante clause; which Section 153A is. 8. Section 132 deals with search and seizure; Section 132A with respect to the powers of requisition and Section 132B regarding the application of seized or requisitioned assets. Section 153A was introduced by Act 32 of 2003 superseding Chapter XIVB, 'Special Procedure for Assessment of Search Cases'; as is seen from Section 158BI, insofar as searches conducted after 31.05.2003. 9. Section 153A is a non-obstante provision rendering nugatory Sections 147, 148, 149, 151 and 153 in the case of a person, when a search is initiated under Section 132 or books of account, other documents or any assets are requisitioned under Section 132A; after 31.05.2003. In all such circumstances, the Assessing Officer, as per sub-clause(a), is required to issue notice to such person to file a return in respect of each assessment year falling within six assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise normal assessment powers in respect of the six years previous to the relevant assessment year in which the search takes place. The Assessing Officer has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six assessment years "in which both the disclosed and the undisclosed income would be brought to tax". (iv) Although Section 153A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the Assessing Officer which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." (v) In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153A is relatable to abated proceedings (i.e. those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to fulfilment of the conditions as envisaged/mentioned under section 147/148 of the Act and those powers are saved." (emphasis supplied by us) 12. The sum total of the declaration made, as extracted hereinabove, is that, when assessments are pending of the six prior years and the relevant year/years on which search or requisition is made, then such assessments shall abate and it shall be proceeded with under Section 153A. On such assessment being proceeded with under Section 153A, the Assessing Officer would be entitled to look at the disclosed income, any information obtained from sources other than the search and also such information obtained in the search, for the purpose of completing assessment. Insofar as the completed assessments are concerned, they remain unabated and, in such circumstances, there can be an assessment proceeded with under Section 153A, only if there is incriminating material found which reveals undisclosed income in any of the years as provided under Section 153A. If no such incriminating material is found on search, then there could be no assessment proceeded with under Section 153A. However, if no incriminating material is found or if the incri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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