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TMI Blog2023 (11) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to have verified the seized material and though the search HELD THAT:- The perusal of the Misc. Applications in this category indicates that the same was filed on the ground that the Tribunal erred in not holding that various documents clearly proved that the documents seized belong to the assessee. The other ground was that the Tribunal erred in not considering the decision in the case of Kamleshbhai Dharamshibhai Patel [ 2015 (8) TMI 966 - GUJARAT HIGH COURT] which stated that the language used in the satisfaction note will have to be seen with reference to the seized material. Reading of the satisfaction note which has been reproduced in the relevant paras of the Appellate Order indicates that the note has brought in the wider concept of correlating the documents seized pertain to/or related to the assessees. When the revenue s case itself as per the satisfaction note wanted the scope to be considering the seized documents in relation to/pertain to now it is not open for them to apply for rectification on the ground that the Appellate Tribunal committed an error in not considering the fact that the seized material belongs to the assessees, when it was never the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field. Alternatively, even the submission of the learned Senior Counsel Shri Hemani for the assessee with regard to the provisions of Section 254(2) post 2016 merit consideration. Section 254(2) prior to its amendment permitted rectification of a mistake within a period of four years from the date of the order. This period with effect from 1.06.2016 was reduced to six months. The order of the Tribunal in Appeal is dated 12.11.2020. The Misc. Application order is dated 24.08.2022. The Supreme Court decided the case of Vikram Bhatia (supra) on 6.4.2023 which was beyond the cap of 6 months from the date of the Misc. Application order which would be 23.03.2023 and therefore even otherwise the decision of the Supreme Court could be no ground in rectifying of the Order. Whether the assessment proceedings u/s 153A is to be framed strictly on the basis of the incriminating material found during the course of search in the concerned assessment? - Reading the findings of the Appellate Tribunal would indicate that the Tribunal had extensively considered the decision of the Delhi High Court in the case of CIT vs Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] In the appeals under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that once an order under Section 132(3) has been passed then the limitation period commences and such an order cannot be continued unless and until the provisions of Section 132(8A) are satisfied. The Tribunal held that the prohibitory orders were invalid as the search team had seized only 277 pages which was very much possible to seize during search proceedings which concluded on 13/3/2015. The Tribunal also relied on a decision in the case of CIT v Sandhya P. Naik reported [ 2000 (12) TMI 21 - BOMBAY HIGH COURT] Obviously, therefore, the Tribunal found that there could have been no justification to pass a prohibitory order as the same was not practicable. Whether reopening of the assessments in the year 2008-09 in the case of Ashok Sundardas Vaswani is justifiable? - As material found during the course of search proceedings can be used for invoking the provisions of Section 147 of the Act. However, it is important to note that the provisions of Section 147 of the Act can be invoked only after complying the provisions/conditions as provided under Section 147/148/149/150 and 151 of the Act. We are not inclined to disturb the finding of the authorities below. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PECIAL CIVIL APPLICATION NO. 12000 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12001 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12042 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12041 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12039 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12037 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12036 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12035 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12032 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12031 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12030 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12075 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12074 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12073 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12071 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12069 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12068 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12066 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12010 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12011 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12006 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12008 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12004 of 2023 With R/SPECIAL CIVIL APPLICATION NO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6370 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16119 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16177 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16117 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16171 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16355 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16371 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16088 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16115 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16090 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16082 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16154 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16369 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16086 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16087 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16109 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16361 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16373 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16388 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16386 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16385 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 16389 of 2023 Appearance: For the Petitioner(s) No. 1 : Mr. Varun K.Patel, Ld. Senior Standing Counsel With Mr.Dev D. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our compartments. Briefly stated, the four compartments were as under: Category 1:- Whether the assessment proceedings undertaken under Section 153C were sustainable in the eyes of law? Category 2:- Whether the assessment proceedings under Section 153A is to be framed strictly on the basis of the incriminating material found during the course of search in the concerned assessment? Category 3:- Whether the assessments completed under Section 153A are within limitation or not? Category 4:- Whether reopening of the assessments in the year 2008-09 in the case of Ashok Sundardas Vaswani is justifiable? 3.5 As far as Category-1 issue is concerned, the Tribunal after considering the provisions held that jurisdiction under Section 153C of the Act prior to 01.06.2015 could be invoked only if the material seized during the course of search in case of third parties belongs to some persons other than the searched person. Subsequent to 01.06.2015, the information embedded in the document is sufficient for taking action under Section 153C. On appreciation of the satisfaction recorded by the Assessing Officer of the searched person as well as the AO of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Varun Patel, learned Senior Standing Counsel, with Mr.Dev D. Patel, learned advocate for the revenue made the following submissions in respect of each category of questions decided by the Tribunal in the respective appeals and consequentially in the miscellaneous applications: With regard to Category 1:- 4.1 He would submit that the findings of the Tribunal in the appellate order were misconceived. He would submit that in accordance with Sec. 153(C) of the Act, the Tribunal could not have relied upon the decision in the case of Anil Kumar Gopi Krishna Agrawal vs. ACIT, reported in [2019] 106 taxmann.com 137 (Gujarat). He submitted that Sec. 153(C) was amended with effect from 1.6.2015 and with regard to material found such as books of account or documents seized, the expression belongs to has been eliminated and in its place expression pertains to or any information wherein relates to, has been used. The finding of the Tribunal that in the satisfaction note, the Assessing Officer had nowhere recorded a finding that the documents belonged to the assessee and that it had recorded that the documents contained information which related to the assessee could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and submit that the Tribunal fell in error in dismissing the rectification applications on the ground that there was no obvious mistake which was apparent. With regard to Category 2: 4.5 Mr. Patel would submit that the Tribunal committed an error in holding that the assessments were not framed strictly under Sec. 153(A) of the Act by relying on the decision in the case of Kabul Chawla (supra). That the addition can only be made if the incriminating material is found from the premises of the assessee, is nowhere provided in the decision. 4.6 Mr. Patel, learned Senior Standing Counsel, would submit that the finding of the Tribunal in the appellate order that the additions made by the Assessing Officer in the case of the assessees were not sustainable because they were not based on the seized material during the course of search carried out at their premises, is bad. He would invite the Court s attention to paras 10 to 18 of the order passed in the miscellaneous applications, particularly para 13 of the order, whereby, the Tribunal while rejecting the application for rectification held that the Appellate Tribunal had analyzed the facts available on record and if the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 5.1 He would broadly categorize the submissions wherein Tax Appeals are pending and submit that it is well settled that when a Tax Appeal is admitted and is pending before the High Court, the Tribunal cannot assume jurisdiction under Sec. 254(2) of the Act and it shall be open for the appellant to voice all the grievances before the High Court while arguing the tax appeals. Reliance was placed on the decisions, namely, R.C. Sabharwal vs. CIT, reported in [2010] 2 taxmann.com 289 (Delhi) and CIT vs. Muni Seva Ashram., reported in [2013] 221 taxmann 27 (Gujarat). He would therefore submit that 68 petitions in which tax appeals are filed must be dismissed on this limited count alone. 5.2 With regard to other remaining 26 petitions, he would respond by making submissions, as made by the learned Senior Standing Counsel for the revenue, category wise. With regard to Category 1:- 5.3 In respect of the controversy revolving around Sec. 153(C), Mr. Hemani, learned Senior Counsel, would submit that the issue has been elaborately dealt with by the Income Tax Appellate Tribunal. He would submit that the search was commenced on 10.03.2015 and concluded on 13.3.2015 i.e. p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable when the ITAT decided the main appeals and the Miscellaneous Applications. 5.7 He would submit that if the decision of the Supreme Court in the case of Saurashtra Katchchh Stock Exchange Ltd., (supra) is seen, it observed that the rectification of a mistake can be done at any time within four years from the date of the order. Section 254(2) has been amended by Finance Act, 2016, whereby the time of four years has been reduced to six months with effect from 01.06.2016. Thus, if the jurisdictional High Court or the Supreme Court had passed an order contrary to the view taken by Tribunal within six months from the date of the order passed by the Tribunal, then non consideration of such decision would fall within the ambit of mistake apparent from face of the record . Reiterating the dates, he would submit that the order in the Misc. Applications was passed on 24.08.2022. The six months from the MA order would expire on 23.02.2023, whereas, the judgement of the Supreme Court in case of Vikram Sujit Kumar Bhatia (supra), was delivered on 06.04.2023, later than the period of six months. The decision therefore would have no bearing on the Misc. Applications under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitory order. The Tribunal had considered that only 277 pages were seized. While revoking the prohibitory order, the Revenue authorities could not bring anything on record to demonstrate as to how it had become practicable to seize the documents and revoke the prohibitory order. Mr. Hemani would submit that the Tribunal had decided all the issues after considering all the provisions and the judgments and therefore there was no error in the same. 5.10 With regard to the argument and the observation of the Tribunal with regard to locker no.58, he would submit that the Tribunal had held that placing of the prohibitory order itself was not justified. The search concluded in March 2015. The limitation for framing the assessment expired on 31.03.2017. Assessment orders were passed in December 2017 which were time barred under Section 153B of the Act. Regarding Category 4: 5.11 Mr. Hemani would submit that the Tribunal has on the basis of the material on record come to the conclusion that reassessment proceedings under Section 147 was based on borrowed satisfaction and therefore, there was no reason for the Tribunal while exercising powers under Section 254(2) of the Act to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee or entry embedded in them falls within the ambit of expression pertains to or relates to . We have to determine under which clause one has to construe the documents found during the course of search. Therefore, it is imperative upon us to take note of section 153C, which reads as under: 2.2.2 UPTO 01.06.2015: Assessment of income of any other person. - 153C. -[(1)] 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 requisitioned a person 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 such other person -[and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegorized two situations. As far as recovery of any money, bullion jewellery or other valuable article or thing seized or requisitioned belongs to person other than the searched person, then section 153C would be justified. However, with regard to the recovery of any books of accounts or documents, seized or requisitioned, then if they pertain to other person, or any information contained therein relates to person other than the searched person, then the action under section 153C could be there. The scope of section 153C after 1.6.2015 has been widened; viz. if a person at whose premises search was carried out maintaining certain details in his regular day-to-day business, and that contain certain information exhibiting the undisclosed income of the person other than the searched person, then the action under section 153C could be justified. But prior to 1.6.2015, the documents ought to be belonged to person other than the searched person. There is a clear distinction between both the conditions. Subsequent to 1.6.2015, the information embedded in the document is sufficient for taking action under section 153C, but prior to 1.6.2015 action under section 153C could be taken if docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 153C of the Act as on the date of the search, are now sought to be brought within its fold on the ground that the satisfaction note and notice under section 153C of the Act have been issued after the amendment came into force. Therefore, this case does not relate to the interpretation of the provisions of any of the sections, but relates to the stage at which the amended section 153C of the Act can be made applicable, as to whether it relates to the date of search; or the date of recording of satisfaction by the Assessing Officer of the searched person; or the date of recording of satisfaction by the Assessing Officer of the other person; or the date of issuance of notice under section 153C of the Act. 19.9 In the facts of the present case, the search was conducted in all the cases on a date prior to 1st June, 2015. Therefore, on the date of the search, the Assessing Officer of the person searched could only have recorded satisfaction to the effect that the seized material belongs or belong to the other person. In the present case, the hard-disc containing in the information relating to the petitioners admittedly did not belong to them, therefore, as on the date of the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the amendment, they would be set aside on the ground that the books of account or documents seized or requisition did not belong to the other person though the same pertained to or the information contained therein related to such person, whereas in other cases arising out of the same search proceedings, merely because the notices are issued after the amendment, the same would be considered to be valid as the books of account or documents seized or requisitioned pertain to or the information contained therein relate to the other person. It could not have been the intention of the legislature to deal with two sets of identically situated persons differently, merely because in one case the Assessing Officer of the searched person records satisfaction as required under section 153C of the Act prior to the coming into force of the amended provisions and in any another case after the coming into force of the amended provisions. 19.12 In Pr. CIT v. Vinita Chaurasia, [2017] 394 ITR 758/248 Taxman 172/82 taxmann.com 153 (Delhi), the Delhi High Court has held that, at the outset, it requires to be noticed that the search in the present case took place on 19th June, 2009, i.e., pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'other person' (in this case the assessees) is that the seized documents forming the basis of the satisfaction note must not merely 'pertain' to the other person but must belong to the 'other person'. 30. In the present case, the documents seized were the trial balance and balance sheets of the two Assessees for the period 1st April to 13th September 2010 (for ISRPL) and 1st April to 4th September 2010 (for VSIPL). Both sets of documents were seized not from the respective Assessees but from the searched person i.e. Jagat Agro Commodities (P) Ltd. In other words, although the said documents might 'pertain' to the Assessees, they did not belong to them. Therefore, one essential jurisdictional requirement to justify the assumption of jurisdiction under Section 153 C of the Act was not met in the case of the two Assessees. 19.14 Thus, it is the date of search that has been considered to be the relevant date for the purpose of applying the amended provisions of section 153C(1) of the Act. 19.15 This court is of the considered view that the trigger for initiating action whether under section 153A or 153C of the Act is the search unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lipkumar Lalwani placed at page no.456 to 483. Relevant part of the satisfaction while issuing notice under section 153C is available at page no. 457 and we deem it appropriate to take note of this part, which reads as under: 7. Satisfaction of the Assessing Officer As per Annexure - B of the person referred to in section In view of above facts as mentioned in the 153A that the seized material Annexure - B. I am satisfied that the documents referred to in S.No.5 relates/pertains seized from the premises (i) 801-802, to the person referred to in S.No.4 Broadway Business Centre, Opp. Mayor's Bungalows, Law Garden. Ellisbridge, Ahmedabad and (ii) Terrace of Crystal Arcade, Nr. Navrangpura Telephone Exchange, C.G Road, Ahmedabad - contains information,which relates to the assessee, Shri Dilip Kumar Lalwani. Further, I am also satisfied that documents seized have a bearing on the determination of the total income of the assessee, | Shree Dilip Kumar Lalwani for assessment years 2009-10 to 2014-15 The assessee being other than the person referred to in section 153A of the Act. I have satisfaction to proceed against the assessee Shri Dilip Kumar Lalwani as per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook this objection before the ld.first appellate authority, the ld.CIT(A) was of the view that since law has been changed, and scope of section 153C w.e.f. 1.6.2015 would be applicable on these cases, because the assessments have not been concluded when the scope of section 153C was widened. The finding of the ld.CIT(A) is worth to note in this connection i.e. in the case of Shri Dilipkumar Lalwani, which reads as under: 4.3. I have carefully considered the facts of the case, assessment order and submission made by the appellant. The Assessing Officer [DCIT, Central Circle-1 (1), Ahmedabad] of M/s. Venus Infrastructure and Developer Pvt. Ltd., in whose case the search was conducted and documents relating to the appellant company was found and seized has recorded his satisfaction note for initiation of assessment proceedings in the case of appellant and forwarded to the ACIT, Circle-50(l), New Delhi, being the Assessing Officer of the appellant. The AO of appellant has recorded his satisfaction and issued notice u/s. 153C of the I. T. Act, 1961. The case of appellant was subsequently transferred to the ACIT, Central Circle -1(1), Ahmedabad. The appellant had raised objection b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same set of facts is not tenable as the Assessing Officer has withdrawn the earlier notice and issued fresh notice after recording the satisfaction. The Honourable Gujarat High Court in the case of A.G. Group Corporation Vs. Harsh Prakash [2013] [35 Taxmann. com 48] has held that, if in the earlier notice a fatal error has been crept in AO will be free to issue another notice provided jurisdiction and limitation aspects are satisfied. 22. This finding is not in the line of law laid down by the Hon'ble Gujarat High Court in the case of Anilk Kumar Gopikishna Agrawal Vs. ACIT, and further reiterated in other cases. At this stage, it is pertinent to note that, otherwise also, these 43 appeals are directly covered by the decision of Hon'ble jurisdictional High Court in the case of Anilk Kumar Gopikishna Agrawal Vs. ACIT (supra) because on the basis of entries embedded in the documents found at the premises of Venus Infrabuild and Shri Ashok Vaswani, notice under section 153C was issued in the case Ocean Valves Mfg. Co. Proprietor of that concern filed an SCA No.19647 of 2018. This was lead case, and notice issued under section 153C of the Act was quashed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion P.Ltd. (supra). Similarly, the order of the ITAT referred by the ld.CIT-DR is with respect to the presumption of truth of certain documents found during the course of search. It is not directly on the point. Other arguments raised by the ld.CIT-DR were raised by the ld.Senior standing counsel before the Hon'ble Gujarat High Court in the case of Anil Kumar Gopikishna Agrawal Vs. ACIT (supra) and those arguments have been considered. Though, section 153C is a procedural section, but the jurisdiction to assess an assessee under this section is being invoked with help of the section. The AO will be in a position to pass assessment order only if during the course of search, any money, bullion, jewellery and other valuable article or thing, or the documents found belong to other person prior to 1.6.2015, and the AO of the searched person was satisfied that such documents disclosed undisclosed income. The documents belonged to the appellants considered under this compartment of the arguments were not found, rather certain information relating to the assessees were found to be embedded in these documents, but prior to 1.6.2015, jurisdiction under section 153C cannot be invoked on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A's. 23.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The grievance of the Revenue is that the ITAT has erred in holding that materials found during the search on the basis of which proceedings under section 153C of the Act were initiated, were not belonging to the assessee. However from prima facie perusal of satisfaction note it revealed that the materials seized belong to the assessee. In this regard the tribunal also erred in not considering the decision of Hon'ble Jurisdictional high court in case of Kamlesh Dharamshi Patel vs. CIT reported in 31 taxmann.com 50 where it was held that the relation and reference of seized material. Ors. (Shri Deepak Kumar Vasvani Ors.) to the assesse is to be seen in the light of language of satisfaction note. The ITAT further erred in not directly applying the order of tribunal in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was under challenge before the Supreme Court and even otherwise by virtue of the decision of the Supreme Court in the case of Vikram Bhatia (supra), the amendment would retrospectively apply. It was clear case of not considering a subsequent decision and therefore the case deserved a rectification in light of the decision in the case of Saurashtra Kutch Stock Exchange Ltd. (supra). 7.2 Facts that are undisputed are that the search was carried out on 10.3.2015 and concluded on 13.3.2015. True it is that the assessment order was passed in the case of the respondent assessee on 26.12.2017. The question that would deserve consideration is whether the Misc. Applications were rightly rejected. The perusal of the Misc. Applications in this category indicates that the same was filed on the ground that the Tribunal erred in not holding that various documents clearly proved that the documents seized belong to the assessee. The other ground was that the Tribunal erred in not considering the decision in the case of Kamleshbhai Dharamshibhai Patel (supra) which stated that the language used in the satisfaction note will have to be seen with reference to the seized material. 7.3 Rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like in the present case the search was prior to the date of 1.6.2015 and therefore the satisfaction could have been recorded to the effect that the seized material belongs to the other person. The court held that if a date other than the date of search is taken to be the relevant date for the purpose of recording satisfaction one way or the other it would result in an anomalous situation. 8.3 Reading the decision of the Tribunal wherein the decision of the case of Anil Kumar Gopi Krishna Agrawal (supra) has been reproduced would indicate that the essential requirement for assumption of jurisdiction under Section 153C as it stood prior to the amendment qua the other person is that the seized documents forming the basis of the satisfaction note must not merely pertain to the other person but belong to the other person. 8.4 The Delhi High Court in the case of Pr.CIT vs Index Securities, (2017) 86 taxmann.com 84 (Delhi) has reproduced the decision of the Supreme Court in the case of Pr.CIT vs Vinita Chaurasia (2017) 394 ITR 758. The relevant paras of the decision read as under: Analysis and reasons 27. The recent decision of the Supreme Court in Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also give its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the Respondent, argued that notice in respect of assessment years 2000-01 and 2001-02 was even time barred. 19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the Respondent that notice in respect of the Assessment Years 2000-01 and 2001-02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy. 28.3 From a reading of the above two paragraphs, itis plain that the Supreme Court (i) agreed with the ITAT that the documents seized had to relate to the AYs whose assessments were reopened and that this was an essential jurisdictional fact and (ii) upheld the decision of the ITAT to permit the additional ground to be raised before it for the first time. 28.4 The Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey did not belong to them. Therefore, one essential jurisdictional requirement to justify the assumption of jurisdiction under Section 153 C of the Act was not met in the case of the two Assessees. 8.5 What is therefore evident on reading the decision reproduced herein above is that the Court had considered the decision of the Gujarat High Court in the case Kamleshbhai Dharamshibhai Patel (supra) and therefore the submission of the Revenue that the Tribunal did not consider the decision of the jurisdictional high court is baseless. What the decision in the case of Kamleshbhai Dharamshibhai Patel (supra) indicates is that the essential requirement to invoke Section 153C is that the documents seized must belong to the assessee concerned. 8.6 The Tribunal in Appeal in context of the satisfaction note which brought in the concept of pertains to/related to in the case on hand found that when the search was prior to 1.6.2015, the post amendment criteria could not apply. In doing so, it considered various decisions especially that of the jurisdictional high court that covered the issue in the case of Anil Kumar Gopi Krishna Agrawal (supra) and therefore the Order refusing to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hitesh Ashok Vaswani 12001 of 2023 6 Of 2022 2012-13 MA 39/Ahd/2021 IT(SS)A 121/ Ahd/2019 3 Hitesh Ashok Vaswani 12042 of 2023 7 Of 2022 2013-14 MA 40/Ahd/2021 IT(SS)A 122/ Ahd/2019 4 Hitesh Ashok Vaswani 12041 of 2023 8 Of 2022 2014-15 MA 41/Ahd/2021 IT(SS)A 123/ Ahd/2019 5 Hitesh Ashok Vaswani 12010 of 2023 14 Of 2022 2013-14 MA 48/Ahd/2021 IT(SS)A 206/ Ahd/2019 6 Shree Sai Siddhi Corporation 12008 of 2023 13 Of 2022 2013-14 MA 65/Ahd/2021 IT(SS)A 279/ Ahd/2019 7 Venus Township India LLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various authoritative judgments recording scope of section 153A of the Act. We are of the view that in this regard, there were large numbers of decisions. First we refer to the decision of Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon ble Delhi High Court after detailed analysis has summarized the following legal position: 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bullion, jewellery found during the course of search relates to other person than the searched person, can that be considered while making assessment under section 153A of the Act. Like in the present appeals, simultaneous search was carried out at the premises of the Venus Infrastructure and Ashok Sunderdas Vaswani, and the material found during the search of Venus Infrastructure Developers or Ashok Sunderdas Vaswani could be used while framing the assessment of Rajesh Sunderdas Vaswani and Deepak Budharmal Vaswani under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench s order. It reads as under: 15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the search of the Assessee's premises. The Revenue could have proceeded against the Assessee on the basis of the documents discovered under any other provision of law, but certainly, not under Section 153A. This goes to the root of the matter. 34. Hon ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153A of the Act. Hon ble jurisdictional high Court has also considered the decision of Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): [A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch is carried out on an assessee, then that search could give rise to a proceedings viz. under section 153A qua the person who has been searched. The income has to be assessed on the basis of material found during the course of search. The second category of the person is third-party and the assessment could be made under section 153C of the Act. The assessment under section 153C is to be made on a condition that during the course of search any money, bullion, jewellery, assets, documents belonged to the assessee prior to 1.6.2015, and information relates/pertains to assessee after 1.6.2015 was found qua to the person other than the searched person. In that situation, the AO of the searched person would record his satisfaction that such material belongs to third-person, and he would transmit that material along with his satisfaction to the AO having jurisdiction on such other person. The AO thereafter issue notice under section 153C after recording his satisfaction and the assessment proceedings under section 153C r.w. section 153A would commence. One more situation would arise, which we are going to discuss in this very group in the later part of the order that material was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to this category, the Tribunal in the MA order held as under: 11. In all these M.A's identical issues were raised by the Revenue. Therefore, we take up M.A. No. 13/ AHD/2021 in IT(SS)A No. 111/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 12. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed below: i. The ITAT in its order has held that there cannot be any addition during the search proceedings in the assessment framed under section 153A of the Act until and unless such addition is based on the incriminating materials found during the course of search from the premises of the assessee. In holding so the ITAT has relied on the judgement of Hon'ble Gujarat High Court in the case of Saumya Construction P. Ltd reported in 387 ITR 529 and Hon'ble Delhi High Court in the case of Kabul Chawala reported in 380 ITR 573 . However, the principles laid down by the Hon'ble Courts nowhere restricts the addition based on incriminating mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A's. Ors. (Shri Deepak Kumar Vasvani Ors.) 13.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The 1st fold of contention of the Revenue is that the ITAT has erred in holding that in the proceeding under section 153A of Act addition or disallowance can only be made on the basis of incriminating material found in the course of search and in holding so ITAT misinterpreted the judgment of Hon'ble Gujarat High Court in case of Saumya Construction (P) Ltd. (supra) and the judgment of Hon'ble Delhi High Court in case of Kabul Chawla (supra). 13.2 In this regard, we note that the ITAT after elaborate discussion on the issue of assessment in case of search proceeding has taken a view that in the proceeding under section 153A of the Act, the addition to total income can only be made on the basis of material found from the premises of the assessee. In holding so, the ITAT analyses the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12054/2023 2009- 10 58/Ahd/2021 235/Ahd/2019 (R) 49/2022 9. 12045/2023 2011- 12 59/Ahd/2021 236/Ahd/ 2019 (R) 18/2022 10. 12056/2023 2012- 13 60/Ahd/2021 237/Ahd/2019 (R) 40/2022 11. 12027/2023 2013- 14 61/Ahd/2021 238/Ahd/2019 (R) 17/2022 12. 12028/2023 2014- 15 62/Ahd/2021 239/Ahd/2019 (R) 36/2022 13. 12024/2023 2015- 16 63/Ahd/2021 240/Ahd/2019 (R) 19/2022 14. Sanjeet M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. 12087/2023 2012- 13 24/Ahd/2021 251/Ahd/2019 (R) 63/2022 27. 12089/2023 2013- 14 25/Ahd/2021 252/Ahd/2019 (R) 50/2022 28. 12090/2023 2014- 15 26/Ahd/2021 253/Ahd/2019 (R) 70/2022 29. 12091/2023 2015- 16 27/Ahd/2021 254/Ahd/2019 (R) 39/2022 C. CATEGORY 3. WHETHER THE ASSESSMENTS COMPLETED UNDER SECTION 153A ARE WITHIN LIMITATION ? 11. The submission of the assessees before the Appellate Tribunal were that provisions of Section 153B(1)(a) mandate that assessment for six assessment years under Section 153A(1)(b) should be completed within a period of two years from the end of the financial year in which last of the authorisation for search und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of Section would reveal that it start with a non obstinate clause notwithstanding anything contained in Section 153 An assessment order has to be passed within two years from the end of the FY in which the last of the authorization for and each under s.132 of the Act was executed or requisition under s.132A is executed. The expression last of the authorization has been explained in sub Section (2). The explanation of expression last of the authorization provided in sub Section (2) is identical in Explanation (2) of Section 158BE which read as under: 'Explanation 2.-For the removal of doubts, it is hereby declared that the authorisation referred to in sub-Section (1) shall be deemed to have been executed,- (a) in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorisation has been issued ; (b) in the case of requisition under Section 132A, on the actual receipt of the books of account or other documents or assets by the authorised officer.' 52. In the large number of judgments cited before us by the parties, this provisions under s.158BE Explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady known and is the subject-matter of a prohibitory order or a restraint order. Though it is not seizure or deemed seizure, it amounts to deemed possession. What is in your possession is to be looked into to find out, is there any incriminating material. It does not amount to search as understood under Section 132 of the Act. It is only because of paucity of time he has gone back and wants to come back and look into the matter leisurely. There is no provision in the Criminal Procedure Code or in the Income-tax Act or the rules for postponing the search for a long period. Then, the concept of search as understood either under the provisions of the Criminal Procedure Code or the Act which are made applicable expressly, would lose its meaning. If such a course is attracted, it is open to an authorised officer to keep the authorisation in his pocket like a season ticket and go on visiting the premises according to his whims and fancies. It seriously affects the valuable right of the assessee conferred under the Constitution. To keep the affected parties in a suspended animation about the probable continuation of search would be agonising. It is invading the right and freedom of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorisation. Different persons will be carrying out search and each one of them is required to be authorised through the search authorisation. In other words, search authorisation should authorise a particular official for executing the search. Therefore, when there are different places to be searched, , separate search authorisation should be drawn with reference to each place of search. The said authorisations may be issued on different dates in which case, the last of such authorisations is to be looked into for the purpose of limitation. However, it is possible that there may be more than one authorisation on the same day. Then the question is which is the last of such authorisations for the purpose of limitation. When all the authorisations are executed there will be one panchnama in respect of each such authorisation. The authorisations may be executed on different dates also. Then the doubt would arise regarding which authorisation to be looked into for the purpose of limitation as all of them are last authorisation. It is for removal of that doubts that the Explanation is inserted. For the purpose of computing the limitation, it is the one year from the end of the month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in Section 158BE. The main attribute of the panchnama is stated to be that it should record the conclusion of search. 80. The law does not contemplate the authorised officer to set out in any of the panchnama that he has finally concluded the search. If for any reason the authorised officer wants to search the premises again, it could be done by obtaining a fresh authorisation. There is no prohibition in respect of the same premises. It is open to the empowered authority to issue authorisation but when the authorisation is issued once, the authorised officer cannot go on visiting the premises under the guise of search. Therefore, it is clear once .n pursuance of an authorisation issued the search commences, it comes to an end with the; drawing of a Panchnama. When the authorised officer enters the premises, normally, the panchnama is written when he comes out of the premises after completing the job entrusted to him. Even if after such scare he visits the premises again, for investigation or inspection of the subject-matter of restraint order or prohibitory order, if a panchnama is written, that would not be the panchnama which has to be looked into for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce : completion fulfilment : perfecting of anything or carrying it into operation and effect Execution a process in action to carry into effect the directions in a decree or judgment Foust v. Foust, 47 Cal. 2d 121, 302 p.2d 11, 13.' In the light of the above definition of the words 'execute' and 'execution', one may argue that until and unless the final act is performed, the warrant of authorisation should not be treated as executed and it order or for any other reason may not be treated as 'execution' of the warrant. But this interpretation would be hyper technical and it needs detailed discussion as is done in the following paras. The question arises as to whether execution of a warrant of authorisation or requisition refers to the conclusion of the proceedings under Section 132 and/or 132A or it refers only to the execution of the warrant even though as a result of such execution the proceedings under Section 132 or 132A are yet to he completed. The latter situation will include a case in which a restraint order 132(3) is passed. In such a case, it can be said that though the warrant of authorisation has been executed, proceedings under Section 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risation is to be taken into consideration for the purpose of limitation for block assessment. Conclusions (1) The Tribunal has got powers to look into all aspects of search and a valid search is sine qua non for initiating block assessment. (2) Materials seized during an invalid search cannot be used in block assessment proceeding but can be used in other assessment proceedings under the Act. (3) The power to put prohibitory order under Section 132(3) is under law but the reasons for doing so has to be recorded in writing and are justiciable. (4) The period of limitation starts on the date on which the last of authorisation has been executed and not when the authorised officer states that the search is finally concluded. Putting a prohibitory order under Section 132(3) does not elongate the starting point of limitation. 54. The Revenue challenged this order before the Hon ble Supreme Court SLP was admitted but ultimately Civil Appeal was dismissed. The next judgment which has been put in service by both the parties is the judgment of Hon ble Delhi High court in the case of PCIT vs. PPC Business Products Pvt. Ltd. In this case, two places were searched one authorization was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal position was that the authorisation dated 19th June, 1998, was executed on 22nd June, 1998 and the search came to an end with that when the search party left the premises on 23rd June, 1998 after making seizure of certain documents etc and issuing restraint order under Section 132(3) of the Act in respect of certain items which they allegedly could not seize due to impracticability on that day. Some judgments of various High Courts are relied upon to support this proposition. It was also argued that there was no concept of 'revalidation of authorisation' provided under the Act, which has been applied by the High Court in the impugned judgment, which according to the learned counsel for the appellants, amounts to legislating a new concept which is contrary to law. 56. The learned counsel for the assessee submitted that in this case Hon ble Supreme Court has not interpreted the scope of Section 153B(2) or scope of Explanation (2) to Section 158BE though attention of the Hon ble Supreme Court was drawn by the Addl. Solicitor General from the Explanation (2) of Section 158BE but in paragraph no. 29, Hon ble Supreme Court had specifically observed that without goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation would begin from the end of August, 1998, that is, 31-8-1998 onwards (p. 297) 31. The factual basis of the decision in VLS Finance (supra) is entirely different to that of the present case. On law, there is nothing in VLS Finance (supra) which contradicts what we have explained above. If the search concluded on 5-81998, as held by the court, and the panchnama of that date was the last of the string of 16 panchnamas, obviously this would be the date on which the search was concluded and the date on which the warrant of authorization for search was executed. But, in the present appeal, no search whatsoever was conducted on 03.01.2001. Hence, the panchnama drawn up on 3-1-2001 cannot be regarded as a document evidencing the conclusion of a search. If that be so, 3-1-2001 cannot be regarded as the date on which the warrant of authorization was executed. Moreover, while in VLS Finance (supra), the court held that the search was not unduly prolonged, in the present case the gap between 17-11-2000 and 31-2001 is unexplained. 57. In other words, the Hon ble Delhi High Court did not accept the contention of VLS Finance and dismissed its writ petition. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ama for the purpose of Section 158BE read with Explanation (2). The Hon'ble Accountant Member did not concur with and treated the second panchnama valid for computing the limitation. The dispute referred to the third member for his opinion and the question formulated 602 the third member was; Whether in the facts and circumstances of the case, the order under s.158BC made by the AO is time barred within the meaning of Section 158BE of the Act.? 59. The third member has taken into consideration the judgment of Hon ble Bombay High Court in the case of Sandhya P. Naik and Hon ble Kerala High Court in case of Dr. C Balakrishnan Nair. The Hon ble third member concur with the Judicial Member and held that issue in dispute is covered by the decision of Hon'ble Bombay High Court in the case of Sandhya P. Naik and it is to be construed that the search was concluded on 29th July 1997 and not from the date when panchnama was prepared while revoking the prohibitory order. The Hon'ble Bombay High Court in the case of Sandhya P. Naik while explaining the scope of Section 132(3) has observed that passing restraint order under Section 132(3), the time limit available for as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 assumes significance. However, the action of the search party headed by the second respondent in collecting the documents and various items from different parts of the premises and again putting them in the almirah in the bedroom of the first floor of the residential premises is unreasonable and no provision is relied on for such a cause of action. Rule 112(4C) of the Income-tax Rules, 1962 empowers the authorised officer to serve an order on the owner that he shall not remove, part with or otherwise deal with it except with the previous permission only in cases where it is not practicable to seize the article or thing or any books of account or document. Therefore, the action of the second respondent and his members in dumping the documents, etc., seized in the almirah cannot be supported, but violates the mandatory requirement. 61. Likewise, the Hon ble Bombay High Court in the case of CIT v. Sandhya P. Naik [2002] 124 Taxman 384 (Bom.) has observed that where a search party seized and removed from the premises of the assessee 5,729 gms. of gold ornaments, cash of Rs. 1,69,000 and books of account weighing nearly 500 kgs, then argument of the department that 45 kg. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be seized and no more search operation to continue. The search comes to an end when the search party leaves the premises after carrying with it the seized material and thus authorisation for search is fully implemented and execution is complete. For this proposition, the Income-tax Appellate Tribunal Bench, Pune, took support of the decision of the Bangalore Bench in the case of Kirloskar Investments and Finance Ltd. v. Asst. CIT [1998] 67 ITD 504. In the present case at hand, the cupboard in which 45 kgs. of silver articles were kept was sealed by making an order under Section 132(3) of the Income-tax Act. The authorised officers were obviously very much aware of the contents of the cupboard and the nature of the articles in view of the inventory made by them. They had also come to the conclusion that the said 45 kgs. of silver articles need not be seized. There was no practical impediment to seizure of the said 45 kgs. of silver, if it was considered by the authorised officer as necessary. The contention of learned counsel for the Department that it was not practical to seize huge quantity of silver at odd hours, was rightly held to be untenable by the Income-tax Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned above), on the same day, i.e., October 20, 1996, after completion of the search and thereafter order was passed under Section 132(3) covering one cupboard in which all the silver articles were placed and sealed. 15. It is also very obvious that there was no warrant of authorisation for search in the name of Ashish Abrol. In his own affidavit, so also in his statement when he appeared before the Income-tax Appellate Tribunal, Mr. Abrol categorically stated that he had a very limited role in this entire episode and that he had no locus standi in the matter. 16. As far as the validity of the panchanama is concerned, one has to look to the provisions of the Criminal Procedure Code, 1973. The panchanama is to be drawn as far as possible, keeping in mind the provisions of the Criminal Procedure Code. It has to be said that obtaining of panch witnesses was not an impossible task for Mr. Abrol, who is supposed to have conducted the deemed seizure operation on December 13, 1996. In fact, the Department itself has admitted that there were many defects in the panchanama. They were repeatedly saying that there were many defects in the panchanama and still were saying that belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 16. It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 17. In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 18. In the result all the M.A s in this segment filed by the Revenue are hereby dismissed. 11.4 In Category cases the SCAs that arise and the Tax Appeals if any filed against the Appellate Order details are as under: Sr. no. Assessee / Respondent SCA No. A.Y. M.A. No. IT(SS)A No. (Assessee (A) / Revenue(R)) T.A. No. Remarks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 93/Ahd/2019 (A) 28/2022 14 16214/2023 2015-16 105/Ahd/2021 94/Ahd/2019 (A) 64/2022 15 16090/2023 2009-10 74/Ahd/2021 228/Ahd/2019 (R) 66/2022 16 16082/2023 2010-11 75/Ahd/2021 229/Ahd/2019 (R) 58/2022 17 Venus Infrastructure and Developers Pvt. Ltd. 16154/2023 2011-12 76/Ahd/2021 230/Ahd/2019 (R) 62/2022 18 16369/2023 2012-13 77/Ahd/2021 231/Ahd/2019 (R) 68/2022 19 16086/2023 2013-14 78/Ahd/2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-12 202115/Ahd/2021 113/Ahd/2019 (A) 56/2022 19 12014/2023 2012-13 16/Ahd/2021 114/Ahd/2019 (A) 55/2022 20 12081/2023 2013-14 17/Ahd/2021 115/Ahd/2019 (A) 60/2022 21 12082/2023 2014-15 18/Ahd/2021 116/Ahd/2019 (A) 26/2022 22 12083/2023 2015-16 19/Ahd/2021 117/Ahd/2019 (A) 51/2022 23 12084/2023 2009-10 21/Ahd/2021 248/Ahd/2019 (R) 69/2022 24 12085/2023 2010-11 22/Ahd/2021 249/Ahd/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no addition with respect to the items which was documented in the reasons recorded but the additions were made with respect to the issues which come into notice of the AO during assessment/re-assessment proceeding under Section 147 of the Act in the final assessment/ reassessment order under Section 147 r.w.s. 143(3) of the Act. 83. The first question arises for our adjudication whether the material found during the search proceedings under Section 132 of the Act can be used for invoking the provisions of income escaping assessment under Section 147 of the Act. At this juncture were inclined to refer the provisions of Section 153A (1) of the Act which deals with the assessment proceedings in case of search being the special proceedings. The provisions of Section 153A (1) reads as under: 153A. (1) Notwithstanding anything contained in Section 139, Section 147, Section 148, Section 149, Section 151 and Section 153, in the case of a person where a search is initiated under Section 132 or books of account, other documents or any assets are requisitioned under Section 132A after the 31st day of May, 2003, the Assessing Officer shall (a) issue notice to such person requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted or requisition made will be assessed or reassessed. Thus the situation arises whether the materials discovered during search proceedings for beyond six preceding A.Y. can be used for invoking the provisions of Section 147 of the Act for the period not covered under the provisions of Section 153A of the Act. The answer stands in favour of the Revenue. It is because there is no denial under the provisions of law for using the search material under the provisions of Section 147 of the Act in a situation where the period/year in dispute is not covered within the provisions of Section 153A of the Act. It is not out of place to mention that the conditions precedent to invoking the provisions to Section 147 of the Act have to be complied by the Revenue. In holding so we draw support and guidance from the order of Hon ble MP High Court in case Ramballabh Gupta vs. ACIT reported in 288 ITR 347 where it was held as under: In order to decide the legality and validity of notice issued under Section 148, it is necessary to see as to whether conditions precedent provided in Section 148 are satisfied or not. Once the conditions prescribed under Section 148 are found present in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment could validly be formed for reopening of assessment made for the assessment year 1997- 98. The assessee did not challenge the notice on any of those grounds which alone could be made basis to challenge the impugned notice, it being issued under Section 148 and, hence, there was no difficulty in upholding the impugned notice which was rightly issued in conformity with the requirement of Section 148. [Para 16] In view of the above judicial pronouncement, we hold that material found during the course of search proceedings can be used for invoking the provisions of Section 147 of the Act. However, it is important to note that the provisions of Section 147 of the Act can be invoked only after complying the provisions/conditions as provided under Section 147/148/149/150 and 151 of the Act. 86. We also note that case law referred by the learned AR for the assessee at the time of hearing are distinguishable from the facts of the present case. In view of the above and after considering the facts in totality, we are not inclined to disturb the finding of the authorities below. Hence the contention raised i.e. the provisions of Section 147 of the Act cannot be invoked i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of Section 254(2) indicates that the Appellate Tribunal may at any time within six months from the month in which the order was passed with a view to rectifying the mistake apparent from the record amend any order passed. Therefore, the mistake has to be apparent from the face of the record and not one where an extensive delving into arguments and a re-look can be sought on questions decided on merits. 13.1 In the case of Commissioner of Income Tax (IT4), Mumbai vs Reliance Telecom Ltd. reported in (2021) 133 taxmann.com 41 (SC), the Hon ble Supreme Court has held that when a detailed order has been passed by the ITAT, no rectification can be made on the ground that the order passed by the ITAT was erroneous either on facts or in law as in that case the only remedy was to prefer an appeal. The Hon ble Supreme Court held thus: 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 13.2 In the case of Vrundavan Ginning and Oil Mill v. Assistant Registrar/President reported in (2021) 126 taxmann.com 227 (Gujarat), the Division Bench considering the powers of the Tribunal to rectify the orders under Section 254(2) held thus: 11 Section 254(2) of the Act makes it amply clear that a 'mistake apparent from the record' is rectifiable. To attract the jurisdiction under Section 254(2), a mistake should exist and must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. Mistake means to understand wrongly or inaccurately; it is an error; a fault, a misunderstanding, a misconception. Apparent implies something that can be seen, or is visible; obvious; plain. A mistake which can be rectified under Section 254(2) is one which is patent, obvious and whose discovery is not dependent on argument. The language used in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Ms. Deeksha Suri v. ITAT and Karan and Co. v. ITAT [2002] 253 ITR 131. This Court has in both these decisions held that the foundation for the exercise of the jurisdiction lies in the rectification of a mistake apparent from the record which object is ensued by amending the order passed by the Tribunal. The said power does not however, contemplate a re-hearing of the appeal for a fresh disposal. Doing so would obliterate the distinction between the power to rectify mistakes and the power to review the order made by the Tribunal. The following passage from the decision of this Court in Karan and Co.'s case (supra) elucidates the difference between review and rectification of an order made by the Tribunal: The scope and ambit of application of Section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under Section 254(1) is the effective order so far as the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same viz, the appeal has to be heard again simply because one of the issues decided by the Tribunal is debatable or the Tribunal has not noticed an earlier decision rendered by another Bench. Both these reasons were insufficient to justify the order of recall made by the Tribunal. In Commissioner of Income Tax v Honda Siel Power Products (2007) 293 ITR 132 (Del) the Court held that: It makes no difference whether the entire order is sought to be recalled or the order passed by the Tribunal on individual grounds is sought to be recalled in entirety. In other words, if the Tribunal has given its decision on say grounds 3 and 4 in a particular way in its first order while dealing with ten separate grounds and pursuant to a rectification application, it recalls its decision on grounds 3 and 4 and gives a completely different decision on the said grounds, then it would certainly amount to recall and review of its entire order in respect of those grounds. The Court also noticed and held that: It must be remembered that this is not a power of review but is restricted to rectifying mistakes apparent from the record. A liberal approach might constitute an invi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the record''. [See : Commissioner of Income TaxII vs. Maruti Insurance Distribution Services Ltd - [2012] 26 taxmann.com 68 (Delhi)] 14. The case on hand is quite unusual or rather we may say typical. 15. The case of the writ applicant is that a specific ground raised in the appeal has not been taken into consideration by the Appellate Tribunal. In other words, no finding has been recorded in that regard by the Appellate Tribunal. It is argued that in such circumstances, an application under Section 254 of the Act would be maintainable. It is argued by the learned counsel appearing for the writ applicant that although Section 254 of the Act talks about the power of rectification, yet the matter of the present type would also be covered under Section 254 of the Act. 16. In this regard, Mr. Patel seeks to rely upon a decision of this Court in the case of Dattani and Co. vs. Income Tax Officer reported in [2014] 41 taxmann.com 360 (Gujarat), more particularly, the observations made in para 4 therein. 17. On the other hand, the argument of the learned Senior Standing Counsel appearing for the Revenue, while opposing the present writ applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent from the record. What is significant is that the section envisages amendment of the original order of the Tribunal and not a total substitution thereof. That position is fairly well-settled by two decisions of this Court in Ms. Deeksha Suri v. ITAT and Karan and Co. v. ITAT [2002] 253 ITR 131. This Court has in both these decisions held that the foundation for the exercise of the jurisdiction lies in the rectification of a mistake apparent from the record which object is ensued by amending the order passed by the Tribunal. The said power does not however, contemplate a re-hearing of the appeal for a fresh disposal. Doing so would obliterate the distinction between the power to rectify mistakes and the power to review the order made by the Tribunal. The following passage from the decision of this Court in Karan and Co.'s case (supra) elucidates the difference between review and rectification of an order made by the Tribunal: The scope and ambit of application of Section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority or Tribunal to condone the same, but the very fact that the Tribunal has made those observations would not render valid the order of recall passed by it. The net result of the order made by the Tribunal continues to remain the same viz, the appeal has to be heard again simply because one of the issues decided by the Tribunal is debatable or the Tribunal has not noticed an earlier decision rendered by another Bench. Both these reasons were insufficient to justify the order of recall made by the Tribunal. In Commissioner of Income Tax v Honda Siel Power Products (2007) 293 ITR 132 (Del) the Court held that: It makes no difference whether the entire order is sought to be recalled or the order passed by the Tribunal on individual grounds is sought to be recalled in entirety. In other words, if the Tribunal has given its decision on say grounds 3 and 4 in a particular way in its first order while dealing with ten separate grounds and pursuant to a rectification application, it recalls its decision on grounds 3 and 4 and gives a completely different decision on the said grounds, then it would certainly amount to recall and review of its entire order in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in Section 154 of the Income-tax Act, 1961 to correct any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error apparent on the face of the record''. 10. It can be seen from the preceding discussion that the power to rectify an order, under Section 254 (2) is extremely limited. It does not extend to correcting errors of law, or re-appreciating factual findings. Those, properly fall within appellate review of an order of court of first instance. What legitimately falls for consideration are errors (mistakes) apparent from the record. Here, whether the dealer commissions remained constant throughout the previous years, or had to dwindle, according to the Tribunal's understanding in its previous order of 30-11-2009, were matters that had to be gone into and were directed to be gone into by the Assessing officer. However, in the order by which previous order was rectified, the entire basis of its previous reasoning was substituted, and a wholly new result ensued. This court is clear that such re-appreciation did not amount to rectification of a mistake, but re-appreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. Misc. Application No. Appeal No. 1 Hitesh Ashok Vaswani 12000 of 2023 5 of 2022 2011-12 MA 38/Ahd/2021 IT(SS)A 120/Ahd/2019 2 Hitesh Ashok Vaswani 12001 of 2023 6 of 2022 2012-13 MA 39/Ahd/2021 IT(SS)A 121/Ahd/2019 3 Hitesh Ashok Vaswani 12042 of 2023 7 of 2022 2013-14 MA 40/Ahd/2021 IT(SS)A 122/Ahd/2019 4 Hitesh Ashok Vaswani 12041 of 2023 8 of 2022 2014-15 MA 41/Ahd/2021 IT(SS)A 123/Ahd/2019 5 Navin Ashok Vaswani 12010 of 2023 14 of 2022 2013-14 MA 48/Ahd/2021 IT(SS)A 206/Ahd/2019 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 Rajesh Sunderdas Vaswani 12054 of 2023 49 of 2022 2009-10 MA 58/Ahd/2021 IT(SS)A 235/Ahd/2019 18 Rajesh Sunderdas Vaswani 12045 of 2023 18 of 2022 2011-12 MA 59/Ahd/2021 IT(SS)A 236/Ahd/2019 19 Rajesh Sunderdas Vaswani 12056 of 2023 40 of 2022 2012-13 MA 60/Ahd/2021 IT(SS)A 237/Ahd/2019 20 Rajesh Sunderdas Vaswani 12027 of 2023 17 of 2022 2013-14 MA 61/Ahd/2021 IT(SS)A 238/Ahd/2019 21 Rajesh Sunderdas Vaswani 12028 of 2023 36 of 2022 2014-15 MA 62/Ahd/2021 IT(SS)A 239/Ahd/2019 22 Rajesh Sunderdas Vaswani 12024 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmal Vaswani 12087 of 2023 63 of 2022 2012-13 MA 24/Ahd/2021 IT(SS)A 251/Ahd/2019 34 Deepak Budharmal Vaswani 12089 of 2023 50 of 2022 2013-14 MA 25/Ahd/2021 IT(SS)A 252/Ahd/2019 35 Deepak Budharmal Vaswani 12090 of 2023 70 of 2022 2014-15 MA 26/Ahd/2021 IT(SS)A 253/Ahd/2019 36 Deepak Budharmal Vaswani 12091 of 2023 39 of 2022 2015-16 MA/27/Ahd/2021 IT(SS)A 254/Ahd/2019 37 Ashok Sunderdas Vaswani 16366 of 2023 38 of 2022 2009-10 MA 29/Ahd/2021 IT(SS)A 241/Ahd/2019 38 Ashok Sunderdas Vaswani 16336 of 2023 35 of 2022 2010-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 2014-15 MA 104/Ahd/2021 IT(SS)A 93/Ahd/2019 50 Ashok Sunderdas Vaswani 16124 of 2023 64 of 2022 2015-16 MA 105/Ahd/2021 IT(SS)A 94/Ahd/2019 51 Venus Infrastructure Dev. P. Ltd. 16090 of 2023 66 of 2022 2009-10 MA 74/Ahd/2021 IT(SS)A 228/Ahd/2019 52 Venus Infrastructure Dev. P. Ltd. 16082 of 2023 58 of 2022 2010-11 MA 75/Ahd/2021 IT(SS)A 229/Ahd/2019 53 Venus Infrastructure Dev. P. Ltd. 16154 of 2023 62 of 2022 2011-12 MA 76/Ahd/2021 IT(SS)A 230/Ahd/2019 54 Venus Infrastructure Dev. P. Ltd. 16369 of 2023 68 of 2022 2012-13 MA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16388 of 2023 32 of 2022 2008-09 MA 98/Ahd/2021 ITA 456/Ahd/2019 66 Ashok Sunderdas Vaswani 16386 of 2023 48 of 2022 2008-09 MA 28/Ahd/2021 ITA 806/Ahd/2019 67 Deepak Sunderdas Vaswani 16385 of 2023 16 of2022 2008-09 MA 12/Ahd/2021 ITA 461/Ahd/2019 68 Deepak Sunderdas Vaswani 16389 of 2023 34 of 2022 2008-09 MA 20/Ahd/2021 ITA 807/Ahd/2019 16. In the following 26 Petitions, where the Revenue has not filed Tax Appeals in the respective categories as a result of the low tax effect, we deem it fit not to interfere with the order dated 24.08.2022 in the respective Misc. Applications as once the Appellate Tribunal had considered the issues on merits and undertaken a detailed discussion, no rectification could be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 Mamta Ashok Vaswani 12075 of 2023 --- 2010-11 MA 43/Ahd/2021 IT(SS)A 131/Ahd/2019 11 Mamta Ashok Vaswani 12074 of 2023 --- 2011-12 MA 44/Ahd/2021 IT(SS)A 132/Ahd/2019 12 Mamta Ashok Vaswani 12073 of 2023 --- 2012-13 MA 45/Ahd/2021 IT(SS)A 133/Ahd/2019 13 Mamta Ashok Vaswani 12071 of 2023 --- 2013-14 MA 46/Ahd/2021 IT(SS)A 134/Ahd/2019 14 Mamta Ashok Vaswani 12069 of 2023 --- 2014-15 MA 47/Ahd/2021 IT(SS)A 135/Ahd/2019 15 Harsha Deepak Vaswani 12068 of 2023 --- 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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