ASHOK DHANRAJ CHORDIA ,PUNE vs. PCIT, PUNE-1, PUNE

This appeal filed by the assessee is directed against the order dated 29.03.2024 passed u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) by the Ld. PCIT, Pune-1, relating to assessment year 2017-18.

5. Subsequently the Ld. PCIT examined the record and noted that the Assessing Officer has erroneously accepted the assessee’s objections which consequently resulted in dropping of the proceedings initiated u/s 147 of the Act. He, therefore, issued a show cause notice asking the assessee to explain as to why the proceedings u/s 263 of the Act should not be initiated. The said notice reads as under:

6. Rejecting the various explanations given by the assessee, he set aside the order dated 13.12.2021 passed by the Assessing Officer disposing of the objections of the assessee to the notice dated 31.03.2021 issued u/s 148 of the Act for proper verification of fact and to re-examine the issues. The relevant findings of the Ld. PCIT read as under:

“4. I have considered the entire written submission carefully. So far as the judgements cited by the assessee, these are not applicable in assessee's case because the facts are clearly distinguishable. Further, the contentions of the assessee are not acceptable considering facts of the case discussed below.

4.1 A letter No.Pn/DCIT.Cen.Cir.1(1)/Sharing of Info./2020-21, dated 27/03/2021 issued by the Asstt. Commissioner of Income Tax, Central Circle 1(1), Pune to the Assessing Officer is available on record whereby a reference was invited to his office's earlier letter No.Pn/DCIT/CC 1(1)/Info./2019-20 dated 10/06/2019 vide which information about the cash loan was provided to the Assessing Officer. As per the copy of the said letter dated 10/06/2019 available on record, a search and seizure action under section 132 of the Act was carried out in the case of Shri Sachin Nahar on 01/08/2017 by the DDIT(Inv.), Unit-1(4), Pune, wherein Shri. Sachin Nahar admitted that various parties have taken cash loans from other parties through him, since he was a broker between the parties, he has received commission for the transactions. Various notebooks, notepad and loose papers were found and seized from the residence of Shri. Sachin Nahar, notings therein indicate the principal amount lent by lenders and borrowed by borrowers, their names, interest component etc. It was also found that Shri. Sachin Nahar used to write the names in certain coded words and the amounts short by three zeros. For example, for amount 100000 the noting would be 100. Shri. Sachin Nahar was asked to decode the entries during the search as well as post search enquiries. His statement was recorded on 17/11/2017 and 27/11/2017. Based on the details provided by him, various depositors and borrowers were identified and accordingly, the information about total cash loan taken by the assessee at Rs.1,40,00,000/- and interest of Rs.15,22,200/- paid in cash, was shared with the Assessing Officer as under:

LOAN RECD IN INTEREST PAID IN SR AMOUNT FY 2016- FY BORROWER NAME OF THE F.Y. F.Y. NO (As per 17 2017- BORROWER 2016-17 2017-18 seized 18 record) 1 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,71,000 - 2 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,64,650 45,000 3 1000 1000000 ASHOK C ASHOK D CHORDIYA 1,16,650 30,000 4 2500 2500000 ASHOK C ASHOK D CHORDIYA 2,60,000 64,975 5 1000 1000000 ASHOK C ASHOK D CHORDIYA 95,300 30,000 6 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,47,000 90,000 7 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,47,000 90,000 8 2000 2000000 ASHOK C ASHOK D CHORDIYA 2,45,000 60,000 9 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,75,500 45,000

The relevant documents sized during search & seizure operation were also shared with the Assessing Officer along with the copy of statement of Shri. Sachin Nahar. 4.2 After considering the information and documents received, the Assessing Officer initiated proceedings under section 147 of the Act by issue of notice under section 148 of the Act on 31/03/2021 after recording the reasons for the same. During the course of assessment proceedings, the assessee raised objections to reopening of his case. The main contention of the assessee was that the Assessing Officer jumped to the conclusion that the cash credit (borrowing of Rs.1,40,00,000/-) is duly entered in the books of accounts of the assessee without any basis or supporting material. However, it is seen from the reasons recorded by the Assessing Officer that while recording the reasons, the Assessing Officer has duly categorized the same viz. brief details of the assessee, brief details of information collection / received, analysis of information collection/received, enquiries made by the AO, findings of the AO, basis of forming reason to believe and details of escapement of income, applicability of provisions of section 147/151 to the facts of the case etc. Under the heading 'enquiries made by the Assessing Officer', the Assessing Officer has mentioned that the return of income filed by the assessee for A.Y. 2017-18 and the information available in his office was perused. Under 'findings of the AO', the Assessing Officer has specifically mentioned that the assessee has shown unsecured loan at Rs.2,54,41,49,312/-. Thus, naturally the Assessing Officer has considered the amount of Rs.1,40,00,000/- raised by the assessee as cash loan, which is less than the amount of unsecured loan shown by the assessee, as cash credit in the books of the assessee. It is seen from the records that the assessee has shown the above said figure of Rs.2,54,41,49,312/- in his balance sheet as on 31/03/2017 under the head cured Loans. Therefore, the Assessing Officer was correct in believing that said amount of cash loan of Rs.1,40,00,000/- is included in the amount of unsecured loans of Rs.2,54,41,49,312/- shown by the assessee. Another contention of the assessee was that the creditworthiness of Shri. Sachin Nahar cannot be questioned since he is a finance broker and that the Assessing Officer has mentioned that the assessee has borrowed the amount from Shri. Sachin Nahar. The contention of the assessee is ill-founded since Shri. Sachin Nahar has himself accepted in his statement recorded on oath on 17/11/2017 vide answers to question No.9 and 15 that he provided facilitation services only: providing facilitation services in respect of cash loan; he is concerned about his commission and did not maintain regular books of accounts for this activity. Thus, the source of the cash loan was not at all available and the creditworthiness of Shri.Sachin Nahar was the key factor in the transactions. Further, the assessee submitted an affidavit dated 15/11/2021 of Shri. Sachin Nahar before the Assessing Officer and contended that Shri. Sachin Nahar has denied granting of any loan in his personal capacity to the assessee. A perusal of the copy of said affidavit available on record, it is seen that Shri. Sachin Nahar has confirmed that the assessee approached him with certain seized papers shared by the ACIT, Central Circle 1(1), Pune along with a chart showing loan received during the financial year 2016-17 and copy of seized papers. He was asked to go through them and to confirm & clarify whether the papers have any entry relating to Ashok D. Chordia. He stated to have gone through the papers and confirms that the seized papers do not contain any entry relating to Ashok D. Chordia and he further confirmed that he has not lent any cash to the assessee and has not received any interest, as stated in the reasons recorded for issue of notice under section 148. It is pertinent to note here that the notings made by Shri. Sachin Nahar as per the seized documents were in coded format. Shri. Sachin Nahar was time and again confronted upon to decode the entries therein while recording his statement under section 131 of the Act on 17/11/2017 and in his answer to question No.6, states that he has tried all the efforts to recall coded names to decode into full name and to provide their other details and still not able to provide details of certain codes and he is not able to recall them. Vide answer to question No.9, he again states that he is concerned only with his commission, did not maintain regular books of accounts and will try to provide the remaining details as and when recollect the same. Vide answer to question No.14 and 15, he stated that in such line of business, the depositor contacts him on phone and does necessary follow up and he does not maintain regular books of accounts. Considering these depositions of Shri. Sachin Nahar in the year 2017 it is strange that he recollects the facts in assessee's case in the year 2021, after a lapse of more than 4 years, and confirms that the name of the assessee is not appearing in the coded entries of seized documents. Further considering the fact that he did not maintain anything other than the coded entries and the depositors were used to contact him and also that he did not maintain books of accounts, there is no support in his confirmation through an affidavit on approach of the assessee. The assessee also submitted a copy of acknowledgement of return of income filed by Shri. Sachin Nahar wherein income of Rs.2.55 cr is declared. However, it is to be noted here that such copy of acknowledgement was not before the Assessing Officer while recording the reasons. Considering the above facts, the assessee's contention that his case was re-opened without application of mind and merely on information received was not at all tenable. As discussed above, the Assessing Officer had categorically analyzed the information received by him and formed his belief of escapement of income. In view of the above facts, the assessee's reliance on the decision of Hon'ble Bombay High Court in the case of Shodiman Investment Pvt. Ltd. [(2018) 93 taxman.com 153 / 167 DTR 290 (Bom)(HC)] and other case, was of no help to the him since the facts are clearly distinguishable. 4.3 While disposing of the objections raised by the assessee, the Assessing Officer observed that there are no entry in the seized papers relating to the assessee and opined that the said fact has been confirmed by Shri. Sachin Nahar vide his affidavit dated 15/11/2021. However, it is seen from the copies of seized documents that at least two entries are appearing under the code name of 'ADC' of '1500/ and 'Ashok C' of '500' which are matching to the assessee name viz. Ashok Dhanraj Chordia. Further, as per the statement dated 17/11/2017 of Shri Sachin Nahar, he has admitted vide answer to question No.6 that the amounts mentioned in the seized documents are in thousands. Thus, the respective amounts shall be considered as Rs.15,00,000/- and Rs.5,00,000/-. Considering the above, the action of the Assessing Officer to blanketly arrive at a conclusion that there were no entries related to the assessee is found to be incorrect and without any proper verification of facts. It seems that the Assessing Officer has solely relied upon the affidavit of Shri. Sachin Nahar, however, considering the facts discussed in para (4.2) in this regard, further inquiries were required before coming to any such conclusion.

4.4 Without prejudice to the above, it is also seen that the Assessing Officer while disposing the objections, has mentioned that they are found to be prima facie acceptable. Use of the words 'prima facie’ while giving his findings by the Assessing Officer shows that he was not sure about his findings but still proceeded to accept the objections of the assessee. 4.5 Without prejudice to the above, it also seems that the complete details of information which was received from the Asstt./Dy.CIT, Central Circle-1(1), Pune was not available before the Assessing Officer while disposing of the objections of the assessee vide order dated 13/12/2021. The letter dated 27/03/2021 of the Asstt.CIT, Central Circle-1(1), Pune specifies following enclosures as reproduced below: “1) Document seized related to the above mentioned depositors 2) Statement of Sachin Nahar 3) Copy of Shri Shri Sachin Nahar's submission" However, the enclosure no. (3) viz. the copy of Shri Sachin Nahar's submission is not found on records submitted by the Assessing Officer during the present proceedings. Further, the copy of statement of Shri. Sachin Nahar stated to be recorded on 04/08/2017 / 02/08/2017 under section 132(4) of the Act is not available now in the records, instead the statement recorded under section 131(1) of the Act on 17/11/2017 is available. Thus, it seems that some of the documents / information which was shared with the earlier Assessing Officer and the basis on which the said Assessing Officer recorded the reasons for initiation of action under section 147, were not available with the Assessing Officer who disposed of the objections of the assessee while disposing such objections. It is also noticed that in the initial stage the information was shared by the Investigation Wing with the Dy.CIT, Circle-2, Pune who in turn initiated action under section 147 of the Act by issue of notice under section 148 of the Act on 31/03/2021. Whereas the order dated 13/12/2021 disposing of the objections of the assessee to the notice under section 148 of the Act has been passed by the Dy.CIT, Circle-1(1). Pune. Therefore, the jurisdiction over the case was changed in the meantime and hence it is very much possible that the relevant documents might have misplaced. However, the Assessing Officer did not examine this aspect of the case. The Assessing Officer ought to have called for these documents once again from the Central Circle-1(1), Pune. Considering the above fact that one of the statements of Shri. Sachin Nahar and his submission which was stated to be enclosed to the letter from Central Circle-1(1), Pune was not available while disposing of the objections, the completeness of the seized documents related to the coded entries is also questionable here. Since, the Asstt.CIT, Central Circle-1(1), Pune has categorically shared a list of transactions of the assessee appearing in the coded entries along with the relevant copies of seized documents vide his letter dated 27/03/2021 on the basis of which the then Assessing Officer recorded reasons of initiation of action under section 147 of the Act, the corresponding entries must have been present in the documents supplied but might have misplaced while transferring the case to another Assessing Officer. Therefore, the completeness of relevant documents while disposing of the objections of the assessee was very important, however, the Assessing Officer did not verify this fact while passing the order dated 13/12/2021. 4.6 The provisions of Section 263 are very clear that Commissioner of Income- tax can exercise power under the said section when he forms an opinion on the basis of records that an order passed by the Assessing Officer is both erroneous and prejudicial to the interests of the revenue. Further, Explanation 2 to section 263, which was inserted vide Finance Act 2015 with effect from 1 June 2015, provides that an order passed without making inquiries or verification which should have been made, should be deemed to be erroneous insofar as it is prejudicial to the interests of the Revenue. This has also been validated by various judicial pronouncements including Apex Court decision in the case of Malabar Industrial Company Ltd. vs. CIT (243 ITR 83 (SC)] wherein it has been held that, whether, where assessing officer had accepted entry in statement of account filed by assessee, in absence of any supporting material without making any enquiry, exercise of jurisdiction by Commissioner u/s 263(1) was justified- held yes. In the present case the Assessing Officer has accepted the objections raised by the assessee against the issue of notice under section 148 of the Act without making proper enquiry. The Assessing Officer has not made any further investigation on the aspects discussed in the foregoing paragraphs. Thus, the scenario of this case equates with the scenario in the case of Malabar Industrial Company Ltd. and as in that case Hon'ble Supreme Court held that exercise of jurisdiction by CIT under section 263(1) of the Act was justified, so it should be in this case.

7. Aggrieved with such order of the Ld. PCIT, the assessee is in appeal before the Tribunal by raising the following grounds:

1. Learned PCIT, Pune-1 has erred in law and on facts in treating the order dated 13-12-2021 passed by the learned AO being erroneous in so far as it is prejudicial to the Interest of revenue, without appreciating that, the learned AO has passed the order disposing objections with due application of mind & verification.

2. Learned PCIT, Pune-1 has erred in law and on facts in setting aside the order dated 13-12-2021 w.r.t. the issue of alleged cash borrowing by the appellant only on the presumption that at least two entries in the copies of seized documents are appearing under the code name of 'ADC of '1500/’ and 'Ashok C' of '500' which are matching to the assessee name viz. Ashok Dhanraj Chordia, without there being any cogent material /evidence to support the presumption of learned PCIT, Pune-1.

3. Learned PCIT, Pune-1 has erred in law and on facts in setting aside the order dated 13-12-2021 without appreciating that the said order is not prejudicial to the interest of revenue as it contains only observations of the learned AO with regards to the objections raised by the appellant to the reasons recorded in issue of notice u/s 148. The learned PCIT, Pune-1 failed to appreciate that the proceeding u/s 147 are dropped by other AO under Faceless Assessment Scheme, 2016.

4. Learned PCIT, Pune-1 has erred in law and on facts in setting aside the order dated 13-12-2021 w.r.t. the issue of alleged cash borrowing by the appellant without appreciating that there are no entries relating to the appellant in the seized papers which is also confirmed by Shri Sachin Nahar vide his affidavit dated 15-11-2021 and the learned AO has also given finding to that effect vide order dated 13-12-2021.

5. The appellant craves leave to add, alter, clarify, explain, modify, delete any of the grounds of appeal, and to seek any just and fair relief.

8. The assessee has also raised the following additional grounds: 6. Learned PCIT-I, Pune erred in law and on facts in passing 263 order dated 29-3-2024, setting aside order of accepting Appellant's objections to 147 proceedings, passed by learned AO dated 13-12-2021. Appellant contends that action of learned PCIT-1 in setting aside the proceedings u/s 147 for "proper verification" is incorrect, considering the decisions of - a) Honorable Pune ITAT, dated 19-8-2024, in case of Narendra Bafna v. ITO, Ward-1, Ahmadnagar, and b) Honorable Jurisdictional High Court, dated 18-2-2025 in case of Sejal Jewellers v. Union of India - Writ Petition No. 3057 of 2019 Appellant further contends that, rightful section for present subject proceedings, ought to have been section 153C (and not section 147). Appellant thus contends that, learned PCIT-1's decision of setting aside the 147 related proceedings leads to nullity and hence, is infructuous.

7. Learned PCIT-1, Pune erred in law and on facts in merely setting aside order passed by learned ACIT, Central Circle-1, Pune dated 13-12-2021 for accepting Appellant's objections to 147 proceedings. Learned PCIT-1, Pune erred in not setting aside the order passed by FAO dated 3-2-2022 for dropping the 147 proceedings, thus, leading to infructuous subsequent proceedings.

12. The Ld. Counsel for the assessee at the outset strongly challenged the order of the Ld. PCIT in setting aside the order of the Assessing Officer disposing of the objections raised by the assessee. He submitted that the issue involved in the instant case relates to some alleged incriminating material found in search action u/s 132 of the Act in the case of Shri Sachin Nahar, finance broker. It is the contention of the Ld. PCIT that some of the entries in the alleged incriminating material passed to the Assessing Officer contained information relating to the assessee and the Assessing Officer has not properly verified the seized documents before accepting the objections raised by the assessee and dropped the proceedings merely relying on the affidavit of Shri Sachin Nahar. Referring to the information shared by the ACIT, Central Circle 1(1), Pune to the DCIT, Circle 2, Pune, copy of which is placed at page 6 of the paper book filed by the Revenue, the. Ld. Counsel for the assessee drew the attention of the Bench to the same which reads as under:

13. Referring to page 7 of the paper book filed by the Revenue, he submitted that as per the said information shared by the Revenue the total amount of Rs.1,40,00,000/- consisting of 9 transactions reads as under:

LOAN RECD IN INTEREST PAID IN SR AMOUNT FY 2016- FY BORROWER NAME OF THE F.Y. F.Y. NO (As per 17 2017- BORROWER 2016-17 2017-18 seized 18 record) 1 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,71,000 - 2 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,64,650 45,000 3 1000 1000000 ASHOK C ASHOK D CHORDIYA 1,16,650 30,000 4 2500 2500000 ASHOK C ASHOK D CHORDIYA 2,60,000 64,975 5 1000 1000000 ASHOK C ASHOK D CHORDIYA 95,300 30,000 6 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,47,000 90,000 7 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,47,000 90,000 8 2000 2000000 ASHOK C ASHOK D CHORDIYA 2,45,000 60,000 9 1500 1500000 ASHOK C ASHOK D CHORDIYA 1,75,500 45,000

14. Referring to the papers enclosed with the chart submitted by the ACIT, Central Circle 1(1), Pune, the details of which are placed at pages 8 to 13 of the paper book, the Ld. Counsel for the assessee drew the attention of the Bench to the same and submitted that the first entry of Rs.15 lakh is shown in the name of A.Lodha. Similarly, second and third entries of Rs.15 lakh and Rs.10 lakh each are shown in the name of A.Lodha which is as per page 9 of the paper book filed by the Revenue. Referring to page 10 of the paper book filed by the Revenue, he submitted that fourth entry of Rs.25 lakh also appears in the name of A.Lodha and not in the name of the assesse. Referring to page 11 of the paper book filed by the Revenue, he submitted that fifth and sixth entries of Rs.10 lakh and Rs.15 lakh also appear in the name of A.Lodha and not in the name of the assessee. Similarly, seventh entry containing the amount of Rs.15 lakh also appears in the name of A.

Lodha and eighth entry appears in the name of Ashok Lodha and ninth entry also appears in the name of Ashok Lodha and not in the name of the assessee.

Therefore, when the assessee raised the objections before the Assessing Officer stating that the entries mentioned in the seized paper mentions the name of one A.Lodha and not Ashok Dhanraj Chordia and that the reasons have been recorded mechanically and without any enquiry or analysis of the information received and the affidavit of Sachin Nahar confirming the fact that the entries mentioned at serial numbers 1 to 9 of the chart enclosed with the seized papers do not represent any cash transactions with the assessee, the Assessing Officer dropped the proceedings.

15. He submitted that the Assessing Officer in the instant case has issued notice u/s 148 of the Act after recording the reasons on the basis of material supplied by the ACIT, Central Circle 1(1), Pune. As per the material supplied by the ACIT, the seized papers do not contain the name of the assessee i.e. Ashok Dhanraj Chordia but it contains the name of one A.Lodha. Nowhere it was brought on record by either the Investigation wing or the ACIT, Central Circle 1(1), Pune or the Ld. PCIT that A.Lodha is the assessee i.e. Ashok Dhanraj Chordia and not somebody else. Therefore, there is nothing wrong in the order passed by the Assessing Officer dropping the proceedings by holding that there are no entries in the seized material in the name of Ashok Chordia.

16. Now coming to the additional grounds raised by the assessee, he submitted that the entire reopening process is to be held as bad in law since the correct section for the present proceedings should have been initiated u/s 153C and not 147, therefore, the Ld. PCIT’s decision of setting aside the 147 related proceedings leads to nullity and has to be treated as infructuous.

17. Referring to the decision of the Hon’ble Bombay High Court in the case of Sejal Jewellery & Anr. Vs. Union of India & Ors. vide Writ Petition No.3057 of 2019 and batch of other appeals order dated 18.02.2025, he submitted that under identical circumstances the Hon’ble Bombay High Court has held that the correct provision should be under section 153C and not 147.

18. Referring to the decision of the Co-ordinate Bench of the Tribunal in the case of ITO vs. Narendra Sampatlal Bafna vide for assessment year 2017-18 and CO No.25/PUN/2024 order dated 19.08.2024, he submitted that in that case also reopening was made on the basis of information received from the Investigation wing that the assessee has taken cash loan of Rs.6,20,00,000/- from various parties through Mr. Sachin Nahar. The amount was added by the Assessing Officer in the assessment proceedings and on appeal the Ld. CIT(A) deleted the addition by quashing the re-assessment proceedings on the ground that the assessment should have been made u/s 153C and not u/s 147 and further holding that no addition can be made u/s 69A of the Act. Relying on various other decisions, the details of which are placed in the paper book, he submitted that the assessment should have been framed u/s 153C and not u/s 147 of the Act. Therefore, once the proceedings u/s 147 are held to be void-ab-initio, the Ld. PCIT could not have passed the order u/s 263 of the Act partly setting aside the order of the Assessing Officer dropping 147 proceedings. He also relied on the decision of the Hon’ble Bombay High Court in the case of Hindustan Lever Ltd. Vs. R.B. Wadkar (2004) 268 ITR 332 (Bom).

19. The Ld. DR on the other hand strongly supported the order of the Ld. PCIT invoking the jurisdiction u/s 263 of the Act. He submitted that when the Assessing Officer failed to verify the full details before dropping the proceedings u/s 147 of the Act, the Ld. PCIT was fully justified in invoking the jurisdiction u/s 263 of the Act. So far as the argument of the Ld. Counsel for the assessee that the proceedings should have been initiated u/s 153C and not u/s 147 is concerned, the Ld. DR referring to the decision of the Hon’ble Delhi High Court in the case of PCIT vs. Naveen Kumar Gupta vide judgment dated 20.11.2024, submitted that 147 proceedings are valid. For the above proposition, he drew the attention of the Bench to paras 65 and 66 of the order of the Hon’ble High Court which reads as under: “65. In the facts of the present case, the Revenue disputes that a satisfaction note by the AO of the searched person (Jain Brothers) was forwarded to the AO of the Assessee along with the requisite documents. Thus, in the facts of the present case, the jurisdictional conditions to initiate further steps under Section 153C of the Act were not satisfied. However, the AO had received certain information from the AO. A report was also received from the Investigation Wing, Mumbai regarding the Assessee purchasing units of a penny stock during the financial year 2010-11. Based on the aforesaid information, including the information received from the Investigation Wing, Mumbai, the AO issued a notice dated 23.08.2018 under Section 148 of the Act. Admittedly, there is nothing on record to indicate that the AO of the searched person had recorded a satisfaction note and transmitted the relevant material containing information regarding the Assessee to the AO. There is also no material that the AO had on receipt of the said information issued a notice under Section 153C of the Act. Thus, in fact the AO did not assume jurisdiction under Section 153C of the Act. Absent assumption of any jurisdiction, the question of Sections 147, 148 and 149 of the Act being overridden by virtue of the non obstante clause of Section 153C of the Act, does not arise. The said clause would be operative only if the AO had in fact assumed jurisdiction under Section 153C of the Act. In that eventuality, recourse to the provisions as named in the opening sentence of Sections 139, 147, 149, 151 and 153 of the Act would be ousted.

20. He accordingly submitted that both on legally and factually the Ld. PCIT was fully justified in invoking the jurisdiction u/s 263 of the Act.

matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.--Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2.--For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:-- (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; (ba) where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E;]

(c) where an assessment has been made, but-- (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed; (ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under sub- section (2) of section 133C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be, the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; (d) where a person is found to have any asset (including financial interest in any entity) located outside India. Explanation 3.--For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub- section (2) of section 148. Explanation 4.--For the removal of doubts, it is hereby clarified that the provisions of this section, as amended by the Finance Act, 2012 (23 of 2012), shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012. 153A. Assessment in case of search or requisition. (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 [but on or before the 31st day of March, 2021], the Assessing Officer shall-- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years and for the relevant assessment year or years referred to in clause (b), in 18 February, 2025 WP3057_2019.DOC the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and for the relevant assessment year or years : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years and for the relevant assessment year or years : Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year or years referred to in this sub- section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate : Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases 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 and for the relevant assessment year or years: Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless— (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and(c)the search 18 February, 2025 WP3057_2019.DOC under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017. Explanation 1.--For the purposes of this sub-section, the expression "relevant assessment year" shall mean an assessment year preceding the assessment year relevant to the previous year in which search is conducted or requisition is made which falls beyond six assessment years but not later than ten assessment years from the end of the assessment year relevant to the previous year in which search is conducted or requisition is made. Explanation 2.--For the purposes of the fourth proviso, "asset" shall include immovable property being land or building or both, shares and securities, loans and advances, deposits in bank account. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Principal Commissioner or Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.--For the removal of doubts, it is hereby declared that, i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year."

153C. Assessment of income of any other person. (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,-- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or 18 February, 2025 WP3057_2019.DOC (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 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 : Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A 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 rules30 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 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 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) Nothing contained in this section shall apply in relation to a search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of April, 2021.

20. It is thus clear that in the event any incriminating material is found during the search, the Revenue necessarily would be required to take recourse to the provisions of Section 153A and in the event no incriminating material found during the search, then the power of the Revenue to have the reassessment under Sections 147/148 of the I.T. Act stands saved, failing which, the Revenue would be left without remedy. It is on such observations the conclusions as rendered by the Supreme Court and which are relevant to the case in hand, are required to be noted, which reads thus: "14. In view of the above and for the reasons stated above, it is concluded as under: i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section 153A; ii) all pending assessments/reassessments shall stand abated; iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material 18 February, 2025 WP3057_2019.DOC available with the AO including the income declared in the returns; and iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re- opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under Sections 147/148 of the Act and those powers are saved.

The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs."

21. The Rajasthan High Court in Shyam Sunder Khandelwal s/o. Late Damodar Lal Khandelwal vs. Assistant Commissioner of Income Tax, Central Circle-2, Jaipur8 (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 I. 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 I.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 Civil Writ Petition No. 18363/2019 dated 19.03.2024 18 February, 2025 WP3057_2019.DOC 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.

25. In cases of the person other than on whom search was conducted but material belonging or relating such person was seized or requisition, the AO has to proceed under Section 153C. The two pre-requisites are that the AO dealing with the assessee on whom search was conducted or requisition made, being satisfied that seized material belongs or relates to other assessee shall hand over it to AO having jurisdiction of such assessee. Thereafter, the satisfaction of AO receiving the seized material that the material handed over has a bearing for determination of total income of such other person for the relevant preceding years. On fulfillment of twin conditions the AO shall proceed in accordance with the provisions of Section 153A.

26. Special procedure is prescribed under Section 153A to 153D for assessment in cases of search and requisition. There cannot be a quibble with the proposition that the special provision shall prevail over the general provision. To say it differently the provisions of Section 153A to 153D have prevalence over the regular provisions for assessment or reassessment under Section 143 & 147/148.

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 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).”

“17. So far as the first issue raised by the Revenue in the grounds of appeal challenging the order of the CIT(A) / NFAC in quashing the re-assessment proceedings are concerned, we find that the case of the assessee was reopened on the basis of information received from the DCIT, Central Circle – 1, Pune according to which details emerged during the statement recorded u/s 132(4) of the Act of Shri Sachin Nahar and during search and post search enquiries by the Investigation wing and also during the course of enquiries conducted during search proceedings by the Central Circle – 1(1), Pune that the assessee has received cash loan of Rs.6,20,00,000/- through Shri Sachin Nahar. Further, the various documents, note books, note pads and loose sheets found during the course of search contained the business details of Shri Sachin Nahar. The provisions of section 153C of the Act read as under: “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,— (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 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 : ……………..”

18. A perusal of the above provisions shows that the same is applicable if any money, bullion, jewellery or other valuable article or thing seized or requisitioned belongs to or 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 issue notice and assess or re-assess the income of the other person in accordance with the provisions of section 153A of the Act (emphasis supplied by us).

19. In the instant case, the reopening of the assessment was based on the basis of information that emerged from the statement of Shri Sachin Nahar u/s 132(4) and on the basis of details of notings in his money lending business which contained the name of the assessee as stated by the Assessing Officer. We find the letter No.Pn/DCIT/Cen.Cir.1(1)/Sharing of lnfo./2020-21/dated 05.03.2021 of ACIT Central Circle 1(1), Pune addressed to the Income Tax Officer, Ward 1, Ahmednagar which reads as under: "To The Income Tax Officer, Ward 1, Ahmednagar Sub: Sharing of Information in the case of Shri Sachin Nahar -reg. Ref: This office letter No. Pn/DCIT/CC 1(1)/Info./2019-20 dated 10.06.2019 Reference may kindly be made to this office letter No. Pn/DCIT/CC 1(1)/Info./2019-20 dated 10.06.2019 vide which information about the cash loan was provided to you. In the case of Shri Sachin Nahar, Search was carried out on 04/08/2017, wherein Shri Sachin Nahar has admitted that various parties have taken cash loans from other parties through him, since he was a broker between these two parties, Shri Sachin Nahar has received commission for this transaction. The details of the parties who have taken cash loans have been obtained from Shri Sachin Nahar. There is also a mention of these persons in the seized documents (copy enclosed).

2. The case of NARENDRA BAFNA (PAN: AAVPB7561N), who has taken cash loan from various parties through Shri Sachin Nahar, pertains to your charge. The copy of statement recorded u/s. 132(4) of the IT Act, 1961 on 04.08.2017 of Shri Sachin Nahar as well as related documents regarding cash loan taken by the party along with the related pages of Shri Sachin Nahar's submission containing name of the above mentioned person and the Assessment Years in which the transactions were made are enclosed herewith for reference and necessary action at your end."

21. From the above it is clear that certain documents were seized from the premises of Shri Sachin Nahar which contained information relating to the present assessee. Therefore, the provisions of section 153C are applicable as according to the said section, it is applicable if any information contained in the seized document relates to the assessee.

22. Under these circumstances and in view of the detailed reasoning given by the CIT(A) / NFAC based on various decisions, we uphold the order of the Ld. CIT(A) / NFAC that the reopening of the assessment u/s 147 was not valid and the proper course of action that should have been taken by the Assessing Officer was u/s 153C as the provisions of section 153C of the Act are clearly applicable to the facts of the case. We, therefore, uphold the order of the CIT(A) / NFAC on the issue of validity of re-assessment proceedings. The first issue raised by the Revenue is accordingly dismissed.”

24. The various other decisions relied on by Ld. Counsel for the assessee also supports his case to the proposition that in such type of cases, the only recourse available to the department is issue of notice u/s 153C and not 148.

Order pronounced in the open Court on 30th July, 2025.