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TMI Blog2024 (5) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment is nothing but the material and information collected during search conducted in the premises of another assessee. Collection of details relating to search would not mean collection of new incriminating material and information, independent of the incriminating material and information collected during search proceedings. Petitioner is correct in submitting that in fact, search was carried out in the year 2016 and the respondents had the authority to reopen the assessment by invoking the powers u/s 153C and draw reassessment proceedings u/s 153A - That was not done within the period of limitation prescribed under Section 153B of the Act of 1961. The respondent-authority was fully aware of the fact that proceedings under Section 153C of the Act of 1961 would be barred by limitation, therefore, recourse was taken to the provisions contained in Section 148 and Section 148A of the Act of 1961 which has no application in the present cases. Thus legal position is that where the basis for reassessment is incriminating material and information collected during search, the only legally permissible course of action is the one provided under Section 153C and not under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, which has been made the basis for reopening the assessment, was part of the documents and material collected during search conducted in the premises of another assessee, the legally permissible course of action was to invoke Section 153C of the Act of 1961 and not Section 148 of the Act of 1961. His submission is that the search was conducted long back and prior to 31.03.2021, but proceedings were not initiated within the period of limitation prescribed under Section 153B of the Act of 1961. Therefore, in order to overcome the said statutory bar, it is being wrongly projected as if the present are the cases of reopening of assessment on the basis of information received before and after the search, which is factually incorrect. He would also highlight that if notice under Section 148A(b) of the Act of 1961 and the final order passed under Section 148A(d) of the Act of 1961 is perused, it would be apparently clear that the basis for reopening the assessment is the information collected from the documents which were seized during search conducted in the premises of another assessee. Therefore, invocation of powers under Section 148A of the Act of 1961 is against the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for consideration is whether in a case where material/information is collected during search and is made a basis for reopening the assessment, the assessing officer can invoke the provisions of Section 148A and Section 148 of the Act of 1961 or the legally permissible course would be to invoke the provisions contained in Section 153C read with Section 153A of the Act of 1961. 8. Learned counsel for both the parties, on the legal issue that where basis for reopening the assessment is information/material collected during search, would not dispute that in such a case, reassessment has to be done only by taking recourse to the provisions contained in Section 153C read with Section 153A of the Act of 1961 and not under Section 148A/Section 148 of the Act of 1961. The legal position in this regard is well settled in view of the decision of the Hon ble Supreme Court in the case of Principal Commissioner of Income-Tax Vs. Abhisar Buildwell P. Ltd. [2023] 454 ITR 212 (SC) and decision dated 19.03.2024 rendered by Division Bench of this Court at Jaipur Bench in the case of Shyam Sunder Khandelwal Vs. Assistant Commissioner of Income Tax (D. B. Civil Writ Petition No. 18363/2019 and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us sub-contractor expenses shown in the name of various dummy entities. A detailed analysis was carried out by the investigating wing involving analysis of ROI and turnover vis-a-vis payments made to the subcontractors by Dinesh chandra R Agrawal Infracon Pvt. Ltd. as well as status of summons issued to sub contractors which was submitted with appraisal report as Annexure-DRA-3(A). 11. Having disclosed the aforesaid information as contained in Annexure-A appended to the notice clearly shows that incriminating material and information was found during the search proceedings and not beyond that. Further, in order to assume jurisdiction under Section 148A of the Act of 1961, the aforesaid information was made a basis to draw inferences which were described as pre search and post search investigation which would be clear from following recitals made in Annexure-A appended to the notice: Accordingly, after pre-search and post search investigation w. r. t. such sub contractors following points regarding such subcontractors were emerged. 1. In pre search investigations, it was found by the Investigation Wing that many of these entities either do not exist at the given address or do not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and information collected during search conducted in the premises of another assessee. Collection of details relating to search would not mean collection of new incriminating material and information, independent of the incriminating material and information collected during search proceedings. 15. Learned counsel for the petitioner is correct in submitting that in fact, search was carried out in the year 2016 and the respondents had the authority to reopen the assessment by invoking the powers under Section 153C of the Act of 1961 and draw reassessment proceedings under Section 153A of the Act of 1961. That was not done within the period of limitation prescribed under Section 153B of the Act of 1961. The respondent-authority was fully aware of the fact that proceedings under Section 153C of the Act of 1961 would be barred by limitation, therefore, recourse was taken to the provisions contained in Section 148 and Section 148A of the Act of 1961 which has no application in the present cases. 16. Learned counsel for the revenue does not dispute the legal position that where the basis for reassessment is incriminating material and information collected during search, the only legally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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