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TMI Blog2024 (12) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Supreme Court had upheld the decisions of this Court in Commissioner of Income Tax v. Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] and the decision of Saumya Construction P. Ltd. [ 2016 (7) TMI 911 - GUJARAT HIGH COURT] whereby it was held that the proceedings under Section 153A of the Act could be initiated only if incriminating material had been found during the search proceedings. However, the Hon ble Supreme Court had also noted that in cases where the said proceedings could not be initiated, the Revenue was not remediless and could take recourse to Sections 147 and 148 of the Act. It is apparent from the above that the said observations cannot be read as permitting reopening of assessments, even in cases where necessary conditions for invoking Sections 147 and 148 of the Act are not satisfied. The said decision also does not permit reopening of assessments beyond the period as stipulated under Section 149(1) of the Act. We are unable to accept that the decision of this court in ITA No. 807/2023 [ 2024 (1) TMI 161 - DELHI HIGH COURT] dismissing the Revenue s appeal] can be read as findings and directions within the meaning of Section 150, to permit the Revenue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessee, being aggrieved by the said assessment order, preferred an appeal before the learned Commissioner of Income Tax (Appeals) [hereafter CIT(A)]. The same was allowed by an order dated 12.07.2022 and the addition of Rs. 11,35,85,032/- made under Section 69A of the Act was deleted. The CIT(A) s order was premised principally on the ground that no incriminating material was found during the search proceedings, and therefore, the assessment pursuant to notice under Section 153A of the Act could not be sustained. 6. Aggrieved by the decision of the learned CIT(A), the Revenue filed an appeal before the learned Income Tax Appellate Tribunal (hereafter the learned ITAT). The said appeal (ITA No. 2421/Del/2022) was dismissed by the learned ITAT, by an order dated 17.04.2023. The relevant extract of the said decision as set out in the impugned notice dated 24.09.2024, issued under Section 148A (3) of the Act, is extracted below: 30. The entire assessment is based upon the statement of Shri Naresh Aggarwal, which is extracted in the body of the assessment order itself. 31. We have carefully perused each and every question therein. We find that there is not even a whisper about Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come for AY 2015-16 under Section 147 of the Act. 9. It is evident from the above that the impugned notice has been issued beyond the period as stipulated under Section 149 (1) of the Act. However, it is the Revenue s case that the impugned notices were within the prescribed time period by virtue of the non-obstante clause under Section 150 of the Act. The said contention is premised on the assumption that the decision of this Court, dismissing the Revenue s appeal against an order dated 17.04.2023, passed by the learned ITAT in ITA No. 2421/Del/2022, is to be construed as containing findings and directions for commencing proceedings under Section 147 of the Act. The Revenue relies on the decision of the Hon ble Supreme Court in Principal Commissioner of Income Tax, Central-3 v. Abhisar Buildwell Private Limited: (2024) 2 SCC 433 in support of this assumption. 10. It is material to note that in Principal Commissioner of Income Tax, Central-3 v. Abhisar Buildwell Private Limited (supra), the Hon ble Supreme Court had upheld the decisions of this Court in Commissioner of Income Tax v. Kabul Chawla: 2015 SCC OnLine Del 11555 , and the decision of the High Court of Gujarat in Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court observed that in cases where a search does not result in any incriminating material being found, the only remedy that would be available to the Revenue would be to resort to reassessment. 39. However, the Supreme Court caveated that observation by observing that the initiation of reassessment would be ..subject to fulfilment of the conditions mentioned in Sections 147/148, as in such a situation, the Revenue cannot be left with no remedy . This sentiment came to be reiterated with the Supreme Court observing that the power of the Revenue to initiate reassessment must be saved failing which it would be left with no remedy. It was thereafter observed in paragraph 36.4 of the report that insofar as completed or unabated assessments were concerned, they could be reopened by the AO by invocation of Sections 147/148 of the Act, subject to the fulfillment of the conditions as envisaged/mentioned under Sections 147/148 of the Act and those powers are saved . 40. It thus becomes apparent that the liberty which the Supreme Court accorded and the limited right inhering in the Revenue to initiate reassessment was subject to that power being otherwise compliant with the Chapter pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation and where the respondents had sought to contend that a finding or direction would enable them to overcome the time frames erected by virtue of Section 144C of the Act. An argument, again founded on Section 150, came to be negated with the Court observing that a direction would have to necessarily be in accordance with the scheme of the Act and the statutory prescriptions comprised therein. It was further observed that it would be wholly incorrect for courts to extend a period of limitation that otherwise stands prescribed in the Act. 44. As was explained in Sumitomo Corporation, the expression finding as occurring in Section 150 of the Act is liable to be understood to be a conclusion or a decision of an authority or tribunal rendered in the context of a particular case and essential for determining the grant of relief. A direction , we had held, would constitute one which an authority was empowered to issue under the Act. Tested on those precepts, we find ourselves unable to countenance the observations appearing in Abhisar Buildwell as amounting to a finding since the principal question in those appeals was with respect to the validity of the search assessments which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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