M/S. MINAKSHI BUILDERS,AHMEDNAGAR vs. COMMISSIONER OF INCOME-TAX, APPEALS-2, PUNE

PER R.K. PANDA, VP:

The above batch of 6 appeals filed by the assessee are directed against the common order dated 30.01.2020 of the Ld. CIT(A)-2, Pune relating to assessment years 2007-08 to 2012-13 respectively. Since common issues are involved in all these appeals, therefore, for the sake of convenience, these were heard together and are being disposed of by this common order.

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Officer and filed certain details and stated that the amounts mentioned in the above chart were received on account of booking advance of flats of Kharadi scheme.

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office with amenities. It was also agreed that the Developers would be at liberty to cause and complete the construction work of all buildings /structures by consuming the FSI available or as may be made available and to sell the remaining flats, parking spaces, shops, offices, bungalows, godown, row houses, units etc. which would be available for construction and sale. The assessee argued before the Assessing Officer that the amount on account of booking advance of flat was received thereby furnishing the copy of the plan, commencement certificate of Pune Municipal Corporation dated 20/06/2007. the bank statement of HDFC Bank and balance confirmation as on 31/03/2012 of Kothari and Company. The assessee had also filed reconciliation statement claiming that it had received booking advance from Kothan and Company in FY 2009-10 and not in FY 2006-07 as alleged. It was submitted by the assessee that it had received Rs. 25,00,000/- in 2005-06 from little diamond and the said figure was shown in balance sheet as on 31/03/2007, as no amount was received in FY 2006-07.

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the parties who were intimated by the said investigation wing were not shown by the assessee or the parties who were shown by the assessee in the submission and accounts were not included in the list provided by the investigation wing Mumbai. The Assessing Officer reproduced the gist of such information regarding the parties as per the assessee and as per the Investigation Wing (Department) in para 6.2 of the assessment order as below-

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Rs.23,00,000/- and 06/07/2007 of Rs.17,00,000/- totaling to Rs.70,00,000/-, In the third Agreement, the AO noticed that the same was executed on 25/07/2010 by the assessee and M/s. Impex Gems, M/s. Laxmi Trading CO. and M/s. Maximus Gems wherein the payments were shown as on 14/07/2010 of Rs. 89,32,000/-, on 16/07/2010 of Rs. 89,32,000/- and on 20/07/2010 of Rs.89,32000/-, totaling to Rs 2,67,96,000/-. The AO noted that the assessee firm had executed the agreements with 3 parties on a single stamp paper, which apparently was unbelievable. He further noted that the assessee failed to file any copy of agreement made with M/s. Little Diamond, M/s Madhur Flour Mill and M/s. Rose Impex and no confirmation was filed by M/s. Madhur Flour Mill. The Assessing Officer noted that despite repeated requests, the assessee firm did not file the supporting evidences such as balance sheet, copies of returns of income and bank statements of the concern parties to prove the genuineness of transaction and creditworthiness of the concerned parties except filing of confirmatory letters from such parties. Since the assessee failed to furnish the details of debtors, status of the scheme, debit and credit entries in HDFC Bank, the details of flats and other information, the Assessing Officer re-iterating the report of the investigation wing, Mumbai, which had established that those parties were involved in sham transactions and were sham concerns of Bhanwarlal Jain and his family members, held that such advance booking is nothing but accommodation entries given to assessee firm against cash receipt by Shri Bhanwarlal Jain and his family members. He accordingly held that the advance booking claimed by the assessee as receipt from M/s Kothari and Company was unexplained cash credits in the hands of the assessee. While holding

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so, the Assessing Officer further held that the advances were received during the year under consideration but no sale deed of flat had been materialized till passing of the assessment order. The assessee also could not establish the correctness and genuineness of the transactions claimed in the form of sale of flats or in the form of advances. The AO therefore treated the amount of Rs.15,00,000/- shown as booking advance received from Mis. Kothari and Company as assessee's unexplained cash credit u/s. 69A.

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of reasons recorded which is based entirely on the basis of information arising from a search conducted u/s 132 of the Act in the case of Shri Bhawarlal Jain group. Referring to the reasons for reopening by the Assessing Officer, copy of which is placed at pages 57 and 58 of the paper book, the Ld. Counsel for the assessee drew the attention of the Bench to the same which is as under:

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relating to or pertaining to the assessee was found and seized during the course of search on Bhanwarlal Jain Group. Referring to para 8.1 at pages 68 and 69 of the order of the Ld. CIT(A) he submitted that the Ld. CIT(A) has also observed that the documents were found and seized containing the information pertaining to the assessee. He drew the attention of the Bench to the observation of the Ld. CIT(A) from the 8th line from the top at page 69 of his order where he has observed as under: “8.1 I find that….I have seen that the AO had got the information from the Investigation Wing regarding the accommodation entries provided by Bhanwarlal Jain Group of cases in which the assessee was one of the beneficiaries…..”

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seized material belonging to or relating to a third person is found during a search. Once the conditions of section 153C are satisfied, recourse to section 147 is legally impermissible. He submitted that in 2015 an amendment was brought in section 153C of the Act whereby “belong / belongs to” was replaced with “pertain / pertains to”.

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Court in the case of Shyam Sunder Khandelwal vs. ACIT vide W.P. No.18363/2019 and the decision of Hon’ble Gujarat High court in the case of Paras Chandreshbhai Koticha vs. ITO vide Special Civil Application No.17933 of 2018, has held that when search material forms the basis of reassessment, proceedings must be initiated u/s 153C of the Act and not u/s 147 of the Act.

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on the basis of borrowed satisfaction and not on the basis of independent enquiry conducted by the Assessing Officer. He submitted that neither in the reasons recorded for reopening nor in the assessment order there is any mention of any independent enquiry conducted by the Assessing Officer to corroborate the information received. The reasons so recorded reflects that the Assessing Officer did not independently apply his mind to the information received from the Investigation Wing and arrived at a belief whether or not any income has escaped assessment. He submitted that it is a pre-condition of section 147 of the Act that the Assessing Officer should form his own satisfaction based on credible enquiry and on the credentials of the facts of the case. He shall not act on the basis of borrowed satisfaction. He submitted that in the present case the entire re- assessment proceedings are based on the information received from the Investigation Wing. He submitted that during the course of assessment proceedings the assessee has submitted various documents to substantiate the genuineness of the transaction. The transaction between the assessee and the alleged companies is supported by bank statements and the amount is received through proper banking channels against the particular transaction. Since the assessee had truly and fully disclosed the details of the transaction of whatsoever nature with the above company, the assessee could not have been a beneficiary through fund routing transaction in connivance with the above entity.

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(Bom), he submitted that the Hon’ble High Court has quashed the re-assessment proceedings on account of borrowed satisfaction.

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books of account regularly maintained. Further, the said transactions are supported by documentary evidences including confirmations, ledger accounts and bank statements. The loans have been received through proper banking channel and there is no allegation of cash being found or discovered with the assessee. Therefore, the basic conditions for invoking the provisions of section 69A are not satisfied.

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promoters of projects. The assessee has received advance against the flat booking in the redevelopment project which is to be constructed at Pune. The assessee during the course of assessment proceedings as well as before the Ld. CIT(A) has submitted various documentary evidences to substantiate the genuineness of the transactions. However, the AO as well as the Ld. CIT(A) failed to consider the same and upheld the addition which is not in accordance with law. He submitted that the loans cannot be treated as accommodation entries merely based on the general information or third party statements allegedly relating to Shri Bhanwarlal Groups without providing the assessee an effective opportunity to cross-examine such parties, without establishing any direct nexus between the assessee and the alleged entry providing activities and without bringing on record any independent corroborative evidence to substantiate the allegation. He submitted that once the assessee has discharged the initial onus by establishing the identity, creditworthiness and genuineness of the loan transactions, the Assessing Officer should not have made addition without rebutting those evidences placed on record. The Ld. CIT(A) is not justified in confirming the addition made by the Assessing Officer. He accordingly submitted that the addition on merit also deserves to be deleted.

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“1. This written submission addresses the concern of the Revenue with respect to issue of notice u/s 148 of the Income-tax Act, 1961 [hereinafter referred to as the 'Act'] on the basis of information received as a result of a search and seizure operation on another assessee vis-à-vis issue of notice in such cases u/s 153C. 2. In this connection, it is to be stated and submitted that 2.1 Section 153C of Income Tax Act doesn't bar AO's jurisdiction to reopen assessment u/s 147 when information against assessee is received from search conducted on another person. Section 153C of the Income Tax Act, 1961 does not by itself preclude an Assessing Officer from reopening assessments under Section 147/148 of the Act, on the basis of information found during a search conducted under Section 132 or requisition made under Section 132A of Act in respect of another person. 2.2 Section 153C of the Act contains a special provision relating to assessment of a person pursuant to material found during the search operations conducted under Section 132 on any other person or as a result of requisition made under Section 132A of the Act. It empowers the Assessing Officer of the person searched, to handover records of undisclosed assets belonging to the other person (found in the books of account of the searched person), to the Assessing Officer of that other person. The Assessing Officer of that other person is empowered to proceed against such other person for evading tax on such undisclosed income. 2.3 The said provision u/s 153C of the Act has been enacted for the purpose of simplifying the procedure in search cases. Thus, the import of such provisions cannot be to oust the recourse to the normal provisions, which in any event are available for assessment/reassessment of an income of an assessee. However, it is to be submitted that the jurisdiction under Section 147 will stand barred when the AO decides to proceed under Section 153C. It is to reason that the Act does not contemplate parallel assessment proceedings. 2.4 In a case where pursuant to search conducted under Section 132 of the Act or requisition made under Section 132A of the Act in respect of another person (searched person), assets, documents or books of account, which either belong to the assessee or contain information pertaining to the said assessee, are found and the same are handed over to the AO of the assessee, he would subject to satisfaction of the other jurisdictional conditions stipulated under Section 153C of the Act, having the jurisdiction to make a reassessment/assessment of the income of the assessee under Section 153C of the Act. However, the same cannot mean that he is bound to exercise the said jurisdiction. In the event, the AO does not assume the jurisdiction to proceed with making an assessment/ reassessment under Section 153C of the Act, for want of the necessary ingredients thereto, it is to submit that the recourse to Section 147/148 is not ousted."

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2.5 It is to submit that the non-obstante clause under Section 153C of the Act does not override the provisions of Section 147 of the Act. 3. In the case at hand, it is the claim of the Revenue that upon examination of documents seized from the search action conducted on group cases of Bhanwarlal Jain on 03.10.2013 by DIT(Inv)-2, Mumbai, it was found that the assessee was beneficiary of the bogus unsecured loans and advances accommodation entries by Bhanwarlal Jain group During the course of assessment proceedings, the assessee could not explain the genuineness of the impugned loans and advances. Accordingly, notices were issued to the assessee Appellant under Section 148 of the Act for reassessment of income, which came to be challenged by the assessee Appellant before CIT(A) resulting into partly allowed with certain enhancements and hence, these appeal. 3.1 The Assessee appears to claim vide its additional grounds of appeal that since Section 153C is a special provision which commences with a non obstante provision, the same would override the other provisions relating to assessment / reassessment, including Section 147 of the Act. It appears to submit that since Section 153C of the Act sets out a specified procedure for conducting the assessment, the same cannot be sidestepped At the outset, it is to submit that, the following "jurisdictional conditions” are to be necessarily satisfied for invoking Section 153C (a) the AO of the searched person being satisfied that the assets and material found during the search proceedings or requisitioned are incriminating insofar as the assessee (other than the searched person) is concerned, (b) recording its satisfaction to the aforesaid effect,

(c) transmitting the same to the AO of the other person (person other than the searched person), It is to humbly submit that at this stage, "it is not necessary for the AO to form any opinion that the valuable articles, books of account or documents would reflect any undisclosed income of such a person. The AO has to merely forward the said material to the AO of the other person exercising jurisdiction in respect of the other person." It is to submit that further jurisdictional conditions as follows are required to be fulfilled : (d) the AO of the non-searched person being satisfied that the material information received has a bearing on the determination of the total income,

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(e) the AO of such non-searched person issuing a notice to commence assessment/reassessment proceedings It is to state and submit that, if any of the aforesaid conditions are not satisfied, then the income of such other person cannot be assessed or reassessed under Section 153C of the Act for want of the necessary jurisdiction by the AO of the non-searched person. 3.3 It is to humbly submit that, the non obstante clause, kicks-in only on the AO assuming the jurisdiction under Section 153C of the Act, to make an assessment / reassessment. The non obstante provisions cannot come into play, if the AO does not take recourse to provision of Section 153C of the Act. 3.4 A non obstante clause is generally appended to section with a view to give the connecting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non obstante clause It is equivalent to saying that inspite of the provisions or Act mentioned in the non obstante clause, the provision following it will have its full operation or the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment or the provision in which the non obstante clause occurs. The non obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting provision to which the non obstante clause is attached. A non obstante clause has two parts the non obstante clause and the enacting part. The purpose of enacting a non obstante clause is that in case of a conflict between the two parts, the enacting part will have full sway in spite of the contrary provisions contained in the non obstante clause. Therefore, the object and purpose of the enacting part should be first ascertained and then the assistance of the non obstante clause should be taken to nullify the effect of any contrary provision contained in the clause. The enacting part of section 153A has three stipulations (1) to issue notice calling for the returns of income for six assessment years (ii) to assess or reassess total income of each of the six assessment years and (iii) not to proceed with any pending assessment or reassessment as on the date of initiation of search as the same would abate. Since some of the provisions contained in the enacting part may come into conflict with the provisions contained in the non obstante clause, these impediments are removed by means of the non obstante clause. Thus, by enacting the non obstante clause in the section, the formalities of issuing notice under section 139, application of the provisions of section 147, 148, 149 or 151 for reopening

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a case for escaped assessment, taking of approval from the concerned authorities for reopening the assessment and the time limit for completion of regular assessment have been done away with. Thus, assumption of jurisdiction by the Assessing Officer under section 153A has been made simple and easy. A perusal of section 153A shows that it starts with a non obstante clause relating to the normal assessment procedure which is covered by sections 139, 147, 148, 149, 151 and 153 respectively in respect of searches made after 31-5-2003. Under the provisions of section 153A, the Assessing Officer is bound to issue notice to the assessee to furnish returns for each assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which the search or requisition was made Another significant feature of this section is that the Assessing Officer is empowered to assess or reassess the "total income" of the aforesaid years. This is a significant departure from the earlier block assessment scheme in which the block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved, resulting in multiple assessments. Under section 153A, however, the Assessing Officer has been given the power to assess or reassess the "total income" of the six assessment years in question in separate assessment orders. This means that there can 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. The argument as regards the non obstante clause contained in section 153A and its effect, that it would exclude the very applicability of sections 147 and 148 respectively, is without any merit. The non obstante clause in section 153A should be understood as merely dispensing with the procedural aspect of section 147. Consequent to the notice under section 153A, the earlier return that may be filed for the purpose of assessment which is pending would be treated as non est in law Further, section 153A(1) itself provides that on filing of the return consequent to the notice, the provision of the Act will apply to the return of Income so filed. Consequently, the return filed under section 153A(1) is a return furnished under section 139. Consequently, the assessee is being assessed in respect of abated assessment for the first time under the Act. Therefore, the provisions of the Act which would be otherwise applicable in case of return filed in the regular course under section 139(1) would also continue to apply in case of return filed under section 153A. 3.5 If one looks at it from another angle, unlike Chapter XIV-B which provided for a special procedure for assessment of search cases, section 153A provides for an assessment in case of search, and was introduced by the Finance Act 2003 with effect from 1-6-2003. Sec 153A does not provide that a search assessment has to be made on the basis of evidence found as a result of search or other documents and such other materials or

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information as are available with the Assessing Officer and relatable to the evidence found. The earlier section 158BB which is not applicable in case of a search conducted after 31-5-2003, provided that the computation of the undisclosed income can only be on the basis of the evidence found as a result of search or other documents and materials or information as are available with the Assessing Officer, provided they are relatable to the evidence found. Section 153A(1)(b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. There is no condition in this section 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. Therefore, it is to humbly submit that even assessments that have been undertaken u/s 153A can also be reopened u/s 147 provided the ingredients required for its trigger are available. Accordingly, to say that the assessment undertaken under section 153A can never be reopened under section 147, would be an incorrect statement of law and therefore assessments that have not been undertaken u/s 153A can always be reopened u/s 147/148 To hold otherwise, would not be in consonance with the legislative intention behind the enactment of section 153A and the statutory position as on date. 3.6 It is to humbly submit that, by its very nature, Section 153C of the Act is an enabling provision, which enables the Assessing Officer to assume jurisdiction to assess / reassess the income of the Assessee, in cases where the jurisdictional conditions as set out in Section 153C are satisfied. The non obstante provision as contained in Section 153C(1) of the Act must necessarily be construed in the aforesaid context. The non obstante provision, in such circumstances, cannot be construed to mean that recourse to a provision, which by nature is an enabling provision, is necessary and by implication, the other provisions in respect of which, the main enactment is accorded primacy are inoperative and nugatory. 3.7 In conclusion, it is to submit that the non obstante clause in Section 153C cannot be read to completely exclude the provisions of Sections 143 or 147, in cases where the assessee's income is sought to be assessed on the basis of information found during search proceedings. 3.8 However, it is to clarify that it will not be open for the AO to take recourse to Section 147, where the AO has taken steps under Section 153C of the Act or vice versa.

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Thus, if the conditions for exercise of jurisdiction under Section 153C of the Act are satisfied and the AO issues a notice as required under Section 153C of the Act, any reassessment under Section 147 of the Act would become impermissible. The assumption that provisions of Section 153C of the Act precludes any proceeding under Section 147 of the Act by virtue of the non obstante clause, is unpersuasive. The scheme of Sections 153C of the Act indicates that the said provision was enacted to simplify the procedure, while maintaining the necessary safeguards, for assessment/reassessment in cases where assets belonging to the assessee or books of account or documents, which contain information pertaining to the assessee are found pursuant to a search conducted under Section 132 of the Act or requisition made under Section 132A of the Act, in respect of a person other than the assessee". Accordingly, it is to submit that, in the instant case, the AO had not assumed jurisdiction under Section 153C of the Act and therefore the re- assessment proceedings initiated under Section 147 cannot be faulted. 3.8 The following judicial pronouncements suppor: the above view

SN Name and Citation Remarks/Relevant paragraphs 1 Pr. CIT-7, New Delhi vs Paras 43, 44, 47, 48, 57, 58, 59, 60, Naveen Kumar Gupta [Delhi 61 and 65. Follows para 39 Pr. CIT ITA No. 401/2022 dtd 20-11- vs Abhisar Buildwell (P) Ltd (2023) 2024 [168 taxmann.com 574 454 ITR 212 (SC). Para 20 for the (Del)(20-11-2024)] issue to be decided by the Hon. HC. 2 Amar Jewellers Ltd vs ACIT Paras 46, 47, 48, 49, 52, 53, 55, 76 & (2022) 444 ITR 97 (Guj) dtd 84. Even assessments completed u/s 31-01-2022 153A were reopened u/s 147/148 holding therefore that the non obstante clause in section 153A did not exclude the applicability of section 147/148 3 CIT vs Anil Kumar Bhatia 24 Paras 18,19,21 & 22 tomann .com 98(Delhil (2012) 4 Sejal Jewellery & Anr vs Uol Para 4 on page 4 indicates that the WP No. 3057 of 2019 petitioner was searched along with its alongwith 12 other WPs associate concerns as well as the key individuals of the group

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only resort available to the AO is to invoke the provisions of section 153A/153C and not section 147/148. In this connection, it is to mention that firstly the decision is pertaining to a writ petition filed by the assessees therein, which came to be collectively disposed of by the Hon'ble Bombay High Court and accordingly there is no ratio decidendi that follows from the said decision. In the decisions of the Hon'ble Delhi High Court, the Hon'ble Court was asked to decide the question regarding the precluding of sections 153A/153C on one hand to sections 147/148 on the other ie the interplay between sections 153A/153C and sections 147/148 There were 13 Writ Petitions that were clubbed and decided by the Hon'ble Bombay High Court taking writ petition No. 3057 of 2019 i.e. Sejal Jewellery vs Union of India & Ors as the lead writ petition. The facts of the case very clearly indicate that the petitioner was searched (para-4 on page 4 of the said decision) along with its associate concerns as well as the key individuals of the group. It is in these facts and circumstances that the Hon'ble Bombay High Court concluded that the provisions of section 153A/153C should be resorted to by the AO instead of invoking the provisions of section 147/148. However, it is to submit that, there has been no search and seizure in the case of the assessee Appellant and therefore, the material factual matrix being different, the decision of the Bombay High Court in Sejal Jewellery (supra) cannot come to the rescue of the assessee. In any case, the principal issue Delhi High Court was asked to address was the interplay between the provisions of Section 153C of the Act and Section 147 of the Act. It was the Assessee's case (in Naveen Kumar Gupta(supra)] that recourse to Section 147 of the Act would be unavailable in cases where the AO is empowered to proceed under Section 153C of the Act. This was the substantial question of law that the Hon'ble Delhi High Court was asked to decide and accordingly what flows from the decision is the ratio decidendi and the said issue, unlike the writ petition before the Hon'ble Bombay High Court. Accordingly, the decision in Naveen Kumar Gupta (supra) would hold the field. 5. In view of the above, it is humbly prayed, that the order of the AO and the CIT (A) be upheld. It is prayed accordingly.”

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reopened u/s 147 of the Act on the basis of the information received from the office of the DIT(Inv)-II, Mumbai through CIT-I, Pune vide letter dated 31.03.2014 wherein it was informed that a search action was carried out in the Bhawarlal Jain group of cases on 03.10.2013 and on examination of books during post search enquiries it was found that the assessee is a beneficiary of accommodation entries of bogus unsecured loans and advances provided by one Bhawarlal Jain group during the assessment years 2007-08 to 2012-13 amounting to Rs.9,24,50,916/-. We find the Assessing Officer rejecting the various explanations given by the assessee during the course of assessment proceedings, made addition of Rs.15 lakhs for the impugned assessment year which has been upheld by the Ld. CIT(A). It is the submission of the Ld. Counsel for the assessee that the reopening of the assessment u/s 147 of the Act is invalid since it falls within the purview of section 153C of the Act. It is his submission that the basis of reasons recorded for reopening is entirely on the basis of information arising from a search conducted u/s 132 of the Act in the case of Bhanwarlal Jain group. Further in the order of the Assessing Officer he has stated that the information was found during the course of search proceedings in the case of Bhanwarlal Jain and received from the office of the DIT(Inv), Mumbai. It is also his submission that the Ld. CIT(A) has called for a remand report from the Assessing Officer and the Assessing Officer in his remand report has also categorically mentioned that the information has stemmed from seized material during the search in the case of Shri Bhanwarlal Jain. It is his submission that when the material / information available to the Assessing Officer for making assessment of the assessee is based

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on incriminating material found and seized during the course of search action in the case of Bhanwarlal group u/s 132 of the Act, then the provisions of section 153C of the Act should have been the correct provision and not 147.

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(2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have be en received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year— (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A. (3)…….”

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153A and Section 153 are quite compartmentalized. To avoid any overlapping of these provisions, the legislature in its wisdom has thought it appropriate to provide for an independent effect, to be given under Section 153A read with Section 153C by incorporating the " non-obstante" clause, in these provisions, which carves out an exception to any normal/regular action being resorted under Section 147. 24. In this view of the matter, we are of the clear opinion that the impugned notice under Section 147 of the I.T. Act and all actions consequent thereto are required to be held to be without jurisdiction and bad in law. The petition is accordingly allowed in terms of prayer clauses (a) and (b).”

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Noting contains various amounts alongwith the names of the parties from whom the amounts were taken by Mr. Ramzan Kokani. This transaction appears to be loan given by Mr. Atul Vijay Madan. Also as per Annexure A-1, Item No. 2 Page No. 186 of the seized document there are noting of land transaction such as date place, property description, amount & share of the seller. The loan transaction of Rs. 45 lacs with Mr. Atul Vijay Madan is in respect of land transaction of G. No. 332/1 of Talwade dated 25/10/2012 mentioned on the seized document. The Sathe Khat agreement dated 28/09/2011 and purchase deed dated 25/10/2012 of the land at Gat No. 332/1 of Tallwade was also found and seized as per Annexure-A, Item No. 2. On verification of the sathe Khat agreement and purchase deed there is difference of Rs. 33 lacs which was paid in cash by Mr. Ramzan Kokani to the sellers of the land. In view of the above it is appears that Mr. Ramzan Kokani received loan of Rs. 45 lacs in cash from Mr. Atul Vijay Madan during the F.Y. 2011-12. Further, a summon u/s 131 of the I.T. Act, 1961 issued to assessee by the DDIT(Inv) but assessee did not attended neither submitted submission. ON perusal of Balance-Sheet, P&L Account, Return of Income and Audit-Report on ITD, transaction of Rs.45 lacs is not recorded in books of account and remained unexplained.” 5.2 Thus, Notice u/s.148 was issued based on the seized documents in the case of Kokani Group. Section 153C of the Income Tax Act is reproduced here as under: “Assessment of income of any other person. 153C.(1) 33 [Notwithstanding anything contained in section 139 tion 147 , section 148 , section 149 , section 151 the Assessing Officer is satisfied that,— (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, 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 requisitioned have a bearing on the determination of the total income of such other person 34 [for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and] for the relevant assessment year or years referred to in sub-section (1) of section 153A :

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Provided that in case of such other person, the reference to the date of initiation of the search under section 132 under section 132A or making of requisition in the second proviso to sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person : Provided further that the Central Government may by rules made by it and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made 34 [and for the relevant assessment year or years as referred to in sub-section (1) of section 153A ] except in cases where any assessment or reassessment has abated. (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A respect of such assessment year— (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A . 6. Section 153C of the I.T.Act starts with “Notwithstanding anything”. Thus, as per section 153C of the Act, whenever certain incriminating documents pertaining to assessee were found during search in the case of some person, then notice u/s.153C of the Act shall be issued in the case of Assessee. 7. The Hon’ble Bombay High Court in the case of Sejal Jewellers Vs. Union of India [2025] 171 taxmann.com 846 held as under : “22. Applying the principles of law as discussed hereinabove, we are of the clear opinion that the foundation of the present case was certainly a search action which was undertaken by the Revenue against one Shilpi Jewellers

39 ITA Nos.447 to 452/PUN/2020

Pvt. Ltd. and in such search and seizure action, materials were seized and such materials were further explored and enquired. Such enquiry revealed significant information in regard to M/s. Green Valley Gems Pvt. Ltd., which according to the Revenue had provided accommodation entries to the petitioner, in which it was also revealed that Green Valley Gems Pvt. Ltd. was a shell company. We do not find that the record would indicate something which is not on the basis of such new materials gathered under the search and seizure action under Section 132. If this be the case, then certainly the provisions of Section 153C read with Section 153A would be applicable, as held by the Supreme Court in Abhisar Buildwell (P) Ltd. (supra)when the Court interpreted the effect and purport of Section 153C and 153A, as also held by the Rajasthan High Court in Shyam Sunder Khandelwal (supra). 23. Insofar as Mr. Suresh Kumar's contention supporting the proceedings under Section 147 and 148 of I.T.Act are concerned, for the aforesaid reasons, such contention would in fact go contrary to the intention of the legislature as depicted by the provisions of Section 153A and 153C of the I.T. Act. There would not be any difficulty in accepting the proposition as canvassed by Mr. Suresh Kumar, referring to the decision of the Supreme Court in Phool Chand Bajrang Lal (supra), however, the facts in the present case are distinct. There cannot be any doubt on the position in law when the Revenue intends to proceed purely on materials relevant for an action under Section 148 read with Section 147. We have already observed that the provisions of Sections 147, 148 vis-a-vis Section 153A and Section 153 are quite compartmentalized. To avoid any overlapping of these provisions, the legislature in its wisdom has thought it appropriate to provide for an independent effect, to be given under Section 153A read with Section 153C by incorporating the "non-obstante" clause, in these provisions, which carves out an exception to any normal/regular action being resorted under Section 147. 24. In this view of the matter, we are of the clear opinion that the impugned notice under Section 147 of the I.T.Act and all actions consequent thereto are required to be held to be without jurisdiction and bad in law. The petition is accordingly allowed in terms of prayer clauses (a) and (b). 8. Respectfully following the decision of Hon’ble Jurisdictional High Court, we hold that the notice u/s.148 of the Act, dated 28.03.2017 issued in the case of assessee based on the document seized during the search in the case of Kokani Group is bad in law, accordingly, the Ground No.6 of the assessee is allowed.”

40 ITA Nos.447 to 452/PUN/2020

“11. We have heard the rival contentions and perused the record placed before us. We have also carefully gone through the decisions referred and relied on by both the sides. We will first take up the legal issue raised by the Revenue in Ground No.5 stating that the case of the assessee’s case comes under the ambit of provisions of section 147 and ld. AO has carried out valid reassessment proceedings after forming reason to believe about alleged escapement of income on the basis of information received from Investigation Wing, Nashik including the incriminating documents found and seized during the course of search in the case of Kokani Group on 08.09.2015. We observe that the assessee which is a partnership firm is engaged in the business of land development at Nashik. Regular assessment proceedings u/s.143(3) stands completed on 16.12.2016 for the year under appeal accepting the returned income. The search on the Kokani Group of Nashik conducted u/s.132 of the Act on 08.09.2015 and various incriminating material were found and seized. The one referred by ld. AO for carrying out the reassessment proceedings in the instant case have been translated in English by the assessee, placed at paper book and is scanned below :

41 ITA Nos.447 to 452/PUN/2020

42 ITA Nos.447 to 452/PUN/2020

that assessee has not been subjected to any survey action and only the assessee’s sister concern firm namely PH Infrastructure was subjected to survey action and the partner in this firm is also the partner of the assessee firm. So admittedly the reassessment proceedings in question have been initiated solely on the basis of incriminating material found and seized during the course of search in the case of Kokani Group. Now the assessee has contended before ld.CIT(A) referring to various judgments that if the AO had reason to believe that in the seized material found during the course of search in the case of Kokani Group there is certain information or document relating to the person other than searched person then ld. AO should have carried out the proceedings u/s.153A r.w.s.153C and that ld.AO had no jurisdiction to proceed u/s.147 of the Act. Ld.CIT(A) has dealt with this issue adjudicating Ground No.3 by the assessee and the same reads as under : “Ground No.3 The ground of appeal is being taken up for adjudication first. As per the assessment order of the Ld. AO, the search and seizure action u/s 132 of the Act was carried out on the Kokani Group on 08.09.2015 and a survey was simultaneously carried out on the appellant group. During the course of search u/s 132 of the Act, certain incriminating documents pertaining to M/s Shree Sai Properties (Appellant) were seized. As per para no. 2/pages 2 and 3 of the assessment order of the Ld. AO, the said seized papers reflected unaccounted cash transactions of the appellant with the searched group. Hence, this is a case of the assessment of the appellant to be framed as per the provisions of section 153C of the Act which clearly mentions that if the documents seized or requisitioned belong to a person other than the person referred under section 153A of the Act, then the documents shall be handed over to the assessing officer having jurisdiction over such person and the assessment shall framed in accordance with provisions of section 153A of the Act. Thus, if the seized documents contain incriminating material with regards to a person other than the searched person, then the procedure to tax any undisclosed income from the incriminating documents is by the way of issue of notice u/s 153C of the Act and not u/s 148 of the Act. It is pertinent to mention no fresh information was collected by the Ld. AO or no information has come to the notice of Ld. AO in normal course, other than information collected as a result of search u/s 132 of the Act on Kokani Group. Hence, the provisions of section 147 are not applicable for reopening the assessment of the appellant. The reliance is placed on the following judicial decisions:- i) Kalyanji Velji HUF vs. DCIT (85 ITR Trib) (Trib) 500 (Mum) ii) ITO vs. Shri Vasantrao Laxman Khandge (ITA No. 1971/PUN/2014) iii) Shri Adarsh Agarwal vs. ITO (ITA no.777/Del/2019)

43 ITA Nos.447 to 452/PUN/2020

In view of the facts and circumstances as stated above, the impugned assessment should have been framed u/s 153C of the Act, hence the assessment u/s 147/148 of the Act framed by the Ld. AO is hereby quashed. The ground of appeal no. 3 is allowed.” 13. We further note that similar type of issue also came for adjudication before the Hon’ble Jurisdictional High Court in the case of Sejal Jewellery Vs. Union of India (2025) 171 taxmann.com 846 (Bombay) wherein the Hon’ble Court has also taken into consideration the judgment of Hon’ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal Vs. ACIT 161 taxmann.com 255 (Rajasthan) and Hon’ble Court has discussed about non obstante clause appearing in provisions of section 153A and 153C of the Act along with scope of section 147 in para 16 of the order which reads as under : “16. On a plain reading of Section 153A, it is clear that it begins with a 'non-obstante' clause, when it provides that 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 31st May, 2003 but on or before 31 March, 2021, the Assessing Officer shall have jurisdiction to issue notice to such person to furnish the return of income as specified in the notice or assess or reassess the total income as provided by the provision. Section 153C also begins with a non-obstante clause, when it provides that notwithstanding anything contained in Section 139, Section 147, Section 148, Section 149, Section 151 and Section 153, to provide that, in a situation which may fall under Section 153C insofar as assessment of income of any other person is concerned, the Assessing Officer shall proceed against such other person and issue notice and assess or reassess the income of other persons in accordance with the provisions of Section 153A, if he is satisfied that the books of account or document or assets seized or requisitioned have a bearing on the determination of the total income of such person for a period as specified in the said provision and after compliance of other provisions as mandated. On the other hand, Section 147 provides for "Income escaping assessment", can be invoked when any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year. In such situation, the Assessing Officer may subject to the provisions of Sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year and for which a prior notice under Section 148 would be required to be issued. Section 147 does not contemplate an eventuality which Section 153A or Section 153C contemplates, the basis of which is inter alia a search action under Section 132 being resorted as noted hereinabove. Thus, both these provisions are quite compartmentalized although the deeming effect of both the provisions, may be the same. However, the situations in which such provisions operate are required to be invoked are completely different. This is clear from the

44 ITA Nos.447 to 452/PUN/2020

bare reading of the provisions, hence would not warrant any elaborate discussion.” 14. Further, Hon’ble Court has also discussed the ratio laid down by the Hon’ble Apex Court in the case of PCIT Vs. Abhisar Buildwell(P) Ltd. (2024) 161 taxmann.com 255 (Raj.) and has also taken note of the judgment of Hon’ble High Court of Rajasthan in the case of Shyam Sunder Khandelwal (supra) wherein the Hon’ble Court has laid down the ratio that where the basis of the initiation of proceedings u/s.148 in case of the assessee was material seized relating to or belonging to assessee during search conducted on M Group, notice issued u/s.148 and impugned orders rejecting objections prior to issuance of notice were to be quashed and set aside. Hon’ble Jurisdictional High Court in the case of Sejal Jewellery (supra) has considered the ratio laid down by the Hon’ble Rajasthan High Court in the case of Shyam Sunder Khandelwal (supra) and has shown its complete agreement with the view taken by the Division Bench of Hon’ble Rajasthan High Court. For the sake of convenience, para 21 to 24 of the judgment in the case of Sejal Jewellery (supra) is reproduced below : “21. The Rajasthan High Court in Shyam Sunder Khandelwal (supra) also had taken a similar view when the issue which had arisen before the Court was in regard to the notice issued under Section 148 of the 1. T. Act, the basis of issuance of such notice was the material seized during search. The contention of the assessee was to the effect that in the said circumstances, the proceedings ought to have been initiated under Section 153C of the L.T. Act. The Division Bench referring to the decision of Supreme Court in Abhisar Buildwell (P).Ltd. (supra) as also the decision of Karnataka High Court in Sri Dinakara Suvarna (supra) allowed the petitions observing that the department had not set up a case, that for initiating proceedings under Section 148, it had material other than the material seized during the search of a related party. The relevant observations of the Division Bench are required to be noted, which reads thus: "23. The reasons supplied in case in hand for initiation of proceedings under Section 147/148 are based on the incriminating material and documents including Pen Drives seized during the search carried out of the Manihar Group and the statements recorded during proceedings. From the information received the AO noticed that the loan advanced and interest earned thereon were unaccounted. In other words the basis for initiation of Section 148 proceedings is the material seized relating to or belonging to the petitioner, during the search conducted of Manihar Group. 24. In the case where search or requisition is made, the AO under Section 153A mandatorily is required to issue notices to the assessee for filing of income tax return for the relevant preceding years. The AO assumes jurisdiction to assess/reassess 'total income' by passing separate order for each assessment.

45 ITA Nos.447 to 452/PUN/2020

46 ITA Nos.447 to 452/PUN/2020

and 153A, as also held by the Rajasthan High Court in Shyam Sunder Khandelwal (supra). 23. Insofar as Mr. Suresh Kumar's contention supporting the proceedings under Section 147 and 148 of 1.T. Act are concerned, for the aforesaid reasons, such contention would in fact go contrary to the intention of the legislature as depicted by the provisions of Section 153A and 153C of the IT. Act. There would not be any difficulty in accepting the proposition as canvassed by Mr. Suresh Kumar, referring to the decision of the Supreme Court in Phool Chand Bajrang Lal (supra), however, the facts in the present case are distinct. There cannot be any doubt on the position in law when the Revenue intends to proceed purely on materials relevant for an action under Section 148 read with Section 147. We have already observed that the provisions of Sections 147, 148 vis-a-vis Section 153A and Section 153 are quite compartmentalized. To avoid any overlapping of these provisions, the legislature in its wisdom has thought it appropriate to provide for an independent effect, to be given under Section 153A read with Section 153C by incorporating the "non-obstante" clause, in these provisions, which carves out an exception to any normal/regular action being resarted under Section 147. 24. In this view of the matter, we are of the clear opinion that the impugned notice under Section 147 of the I.T. Act and all actions consequent thereto are required to be held to be without jurisdiction and bad in law. The petition is accordingly allowed in terms of prayer clauses (a) and (b).” 15. In light of the above judgment of Hon’ble Jurisdictional High Court as well as that of Hon’ble Rajasthan High Court, we find that the judgment referred and relied on by ld. DR in the case of PCIT Vs. Naveen Kumar Gupta 168 taxmann.com 574 (Delhi) will not be applicable as we sitting at Pune Benches of ITAT are bound by the judgment of Hon’ble Jurisdictional High Court. We find that from the judgment of Hon’ble Jurisdictional High Court in the case of Sejal Jewellery (supra) has also been followed by the Coordinate Benches in the decisions given below : (i) (iv) Atul Vijay Madan-vs-DCIT, ITA No. 1529/Pun/2024, Hon. Members, "A" Bench, ITAT Pune dt. 07/05/2025 (ii) (P) Vidarbha Mining Private Limited-vs-DCIT, ITA No. 1265/Mum/2024, Hon. Members, "F" Bench, ITAT Mumbai dt. 30.07.2025 (iii) (Parshwa Investment-vs-DCIT, ITA No. 1429/Mum/2025, Hon. Members, "C" Bench, ITAT Mumbai dt. 30/06/2025 16. Further, similar view has also been taken in the case of following decisions :

47 ITA Nos.447 to 452/PUN/2020

(i) Pr. CIT vs. VSL Mining Company (P.) Ltd., 167 taxmann.com 373 (Kar.) [2024] (ii) Tirupati Construction Company vs. ITO, 165 taxmann.com 176 (Raj.) [2024] (iii) Ashok Dhanraj Chordia vs. PCIT, Pune-1, ITA No.977/PUN/2024, Hon. Members, “A” Bench, ITAT, Pune dt. 30.07.2025 17. Further on examining the facts of the instant case in light of the above judgment of Hon’ble Jurisdictional High Court, we find that in the instant case ld. AO has initiated the assessment proceedings solely on the basis of incriminating material found during the course of search in the case of Kokani Group and there being no other information available with the AO and therefore since the reopening has been carried out on the basis of the incriminating material found in the case of search where the information pertaining to the person other than the searched person, i.e. assessee then the only recourse left with the AO was to frame the assessment u/s.153C r.w.s.143(3) and not u/s.147 of the Act. 18. Based on the above referred settled judicial precedents, we are inclined to hold that where during the course of search any incriminating material is found for the person other than the searched person then the only course of action left with AO is to proceed u/s.153C of the Act as the said section started with non obstinate clause and therefore in the instant case ld. AO erred in assuming jurisdiction u/s.147 of the Act and the same is not in accordance with law. Under these facts and circumstances, we hold that ld.CIT(A) has rightly quashed the impugned proceedings u/s.147 of the Act and the same needs no interference. Ground No.5 raised by the Revenue is dismissed.

48 ITA Nos.447 to 452/PUN/2020

49 ITA Nos.447 to 452/PUN/2020

“14. Further, the reasons clearly shows that the assessing officer has not applied his information received by him from the DDIT (Inv.). The assessing officer has merely opening notice on the basis of intimation regarding re-opening notice from the DDIT. This is clearly in breach of the settled position in law that re- opening notice has to be issued by the assessing officer on his own satisfaction and not on borrowed satisfaction.”

“22. As rightly pointed out by the ITAT, the 'reasons to believe' are not in fact reasons but only conclusions, one after the other. The expression 'accommodation entry' is used to describe the information set out without explaining the basis for arriving at such a conclusion. The statement that the said entry was given to the Assessee on his paying "unaccounted cash" is another conclusion the basis for which is not disclosed. Who is the accommodation entry giver is not mentioned. How he can be said to be "a known entry operator" is even more mysterious. Clearly the source for all these conclusions, one after the other, is the Investigation report of the DIT. Nothing from that report is set out to enable the reader to appreciate how the conclusions flow therefrom. 23. Thus, the crucial link between the information made available to the AO and the formation of belief is absent. The reasons must be self evident, they must speak for themselves. The tangible material which forms the basis for the belief that income has escaped assessment must be evident from a reading of the reasons. The entire material need not be set out. However, something therein which is critical to the formation of the belief must be referred to. Otherwise the link goes missing. 24. The reopening of assessment under Section 147 is a potent power not to be lightly exercised. It certainly cannot be invoked casually or mechanically. The heart of the provision is the formation of belief by the AO that income has escaped assessment. The reasons so recorded have to be based on some tangible material and that should be evident from reading the reasons. It cannot be supplied subsequently either during the proceedings when objections to the reopening are considered or even during the assessment proceedings that follow. This is the bare minimum mandatory requirement of the first part of Section 147 (1) of the Act. 25. At this stage it requires to be noted that since the original assessment was processed under Section 143 (1) of the Act, and not Section 143 (3) of the Act, the proviso to Section 147 will not apply. In other words, even though the reopening in the present case was after the expiry of four years from the end of the relevant

50 ITA Nos.447 to 452/PUN/2020

AY, it was not necessary for the AO to show that there was any failure to disclose fully or truly all material facts necessary for the assessment. 26. The first part of Section 147 (1) of the Act requires the AO to have "reasons to believe" that any income chargeable to tax has escaped assessment. It is thus formation of reason to believe that is subject matter of examination. The AO being a quasi judicial authority is expected to arrive at a subjective satisfaction independently on an objective criteria. While the report of the Investigation Wing might constitute the material on the basis of which he forms the reasons to believe the process of arriving at such satisfaction cannot be a mere repetition of the report of investigation. The recording of reasons to believe and not reasons to suspect is the pre- condition to the assumption of jurisdiction under Section 147 of the Act. The reasons to believe must demonstrate link between the tangible material and the formation of the belief or the reason to believe that income has escaped assessment.”

51 ITA Nos.447 to 452/PUN/2020

ITA Nos.448 to 452/PUN/2020 (A.Ys. 2008-09 to 2012-13)

In the result, all the six appeals filed by the assessee are allowed.

Order pronounced in the open Court on 18th May, 2026.

Sd/- Sd/- (VINAY BHAMORE) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; दिन ांक Dated : 18th May, 2026 GCVSR Gajjala Chinna Digitally signed by Gajjala Chinna Venkata Subba Reddy Venkata Subba Reddy Date: 2026.05.18 16:03:26 +05'30' आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपील र्थी / The Appellant; प्रत्यर्थी / The Respondent 2. 3. The concerned Pr.CIT, Pune 4. DR, ITAT, ‘B’ Bench, Pune ग र्ड फ ईल / Guard file. 5. आदेशानुसार/ BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune

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S.No. Details Date Initials Designation 1 Draft dictated on 13.04.2026 Sr. PS/PS 2 Draft placed before author 04.05.2026 Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS Date on which the file goes to the Office 9 Superintendent 10 Date on which file goes to the A.R. 11 Date of Dispatch of order