KEWAL KUMAR JAIN,,PUNE vs. ASSISTANT COMMISSIONER OF INCOME-TAX,, PUNE

The assessee has challenged the jurisdiction exercised under section 153C of the Act on the basis of documents found in the premises of searched person, in the absence of recording of satisfaction by the Assessing Officer of searched person, before handing over the documents to jurisdictional Assessing Officer of said person.

Briefly, in the facts of the case, search and seizure operation under section 132 of the Act was conducted in the case of Shri Shreeram S. Soni on 29.07.2003. During the course of search operation, documents relating to assessee were seized. The copies of documents seized were vide bundle No.5, 24, 98, 99 and 100 vide Panchanama dated 02.08.2003. The said documents related and belonged to Shri Kewal Kumar Jain i.e. assessee before us. The said documents were forwarded by Addl. CIT, Central Range 2, Pune vide letter dated 30.05.2007 to the Assessing Officer incharge of assessee. On receipt of said documents, notice under section 153C of the Act was issued to assessee. In response thereto, the assessee filed reply stating that return of income originally filed, may be treated as return filed in response to notice issued under section 153C of the Act. The assessee was also supplied copies of seized documents and the case of assessee was taken up for scrutiny. Various additions were made in the hands of assessee on the basis of documents seized.

Before the CIT(A), assessee challenged initiation of proceedings under section 153C of the Act on the ground that conditions of said section were not satisfied in the case of assessee, hence assessment be treated as invalid and hence, annulled. The assessee also raised the issue on merits. The CIT(A) first decided the issue of validity of initiation / conduct of proceedings under section 153C of the Act. Referring to the provisions of section 153A of the Act, it pointed out that the said section lays down the procedure to be followed by Assessing Officer on filing of return of income in response to notice issued under section 153A / 153C of the Act. The case of assessee before the CIT(A) was that proceedings under section 153C of the Act were initiated against the assessee on lapse of almost two years after the proceedings in the case of searched person were concluded. Further, the Assessing Officer having jurisdiction over the searched party had handed over the relevant documents to the Assessing Officer on 15.06.2007 i.e. on lapse of one year after proceedings in the case of searched party, were concluded. Hence, the plea raised was that satisfaction was recorded by the jurisdictional Assessing Officer of searched party after the assessment proceedings against searched party under section 153A of the Act were concluded. The assessee pleaded that recording of satisfaction had to be completed before completion of assessment under section 153A of the Act of searched party. The CIT(A) forwarded submissions of assessee to the Assessing Officer, who in turn, filed remand report and the assessee’s rebuttal was also taken into account by him. The CIT(A) did not accept submission of assessee that initiation of proceedings under section 153C of the Act should be before completion of assessment under section 153A of the Act in respect of searched person. Referring to the proviso to section 153C of the Act, he pointed out that date of receipt of information by Assessing Officer was 15.06.2007 and

The assessee is in appeal against the order of CIT(A).

The assessee has raised various grounds of appeal but the issue which is argued before us is raised vide grounds of appeal No.4 and 5. The learned Authorized Representative for the assessee pointed out that search in the case of Shri Shreeram S. Soni had taken place on 29.07.2003 and the assessment under section 153A r.w.s. 143(3) of the Act was completed in his hands on 27.03.2006. However, the Assessing Officer in charge of assessee received information from the Assessing Officer of searched person along with seized documents on 15.06.2007. He pointed out that information was received much after the close of assessment in the case of searched person, hence provisions of section 153C of the Act have not been satisfied. He further pointed out that Assessing Officer having jurisdiction over the searched person has not recorded satisfaction within time frame allowed before handing over the documents to Assessing Officer of assessee and hence, initiation of proceedings under section 153C of the Act are vitiated. He further referred to Circular No.24/2015, dated 31.12.2015, wherein it has been proposed that the issue of recording of satisfaction for the purpose of section 158BD / 153C of the Act are pari-materia and the Courts have held that the stages at which satisfaction note has to be

The learned Departmental Representative for the Revenue on the other hand, pointed out that in pre-amended provisions of section 153C of the Act, there was no requirement to record satisfaction and hence, initiation and conclusion of proceedings under section 153C of the Act were justified in the case of assessee.

We have heard the rival contentions and perused the record. The assessee is aggrieved by initiation and completion of proceedings under section 153C of the Act, so we shall first make reference to said section. Under the pre- amended provisions of section 153C(1) of the Act, it is provided that notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 153 of the Act, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned, belongs to a person other than a person referred to in

The Hon'ble Supreme Court in the case of M/s. Calcutta Knitwears (supra) have laid down the proposition for section 158BD of the Act that recording of satisfaction note is pre-requisite and satisfaction note must be prepared by Assessing Officer before he transmits the record to the other Assessing Officer, who has jurisdiction over ‘other person’ under section 158BD of the Act. The Apex Court held that the satisfaction note could be prepared at any of the following stages: (a) at the time of or along with the initiation of proceedings against the searched person under section 158BC of the Act; or (b) in the course of the assessment proceedings under section 158BC of the Act; or (c) immediately after the assessment proceedings are completed under section 158BC of the Act of the searched person.

The Hon’ble High Courts have also held that provisions of section 153C of the Act are substantially similar / para-materia to the provisions of section 158BD of the Act. The CBDT recognizing the above said position has issued circular No.24/2015, dated 31.12.2015 in respect of proceedings under section 153C of the Act i.e. for the purpose of assessment of income of ‘other person’ other than searched person. The CBDT has issued circular to the effect that guidelines of the Hon'ble Supreme Court with regard to recording of satisfaction note, may be brought to the notice of all for strict compliance. It is further clarified by the CBDT that even if the Assessing Officer of searched person and the other person are one and the same, then also he was required to record his satisfaction as has been held by the Courts.

Applying the ratio laid down by the Hon'ble Supreme Court, satisfaction note has to be prepared by the Assessing Officer of searched person at the time of or along with the initiation of proceedings against searched person; or in the course of the assessment proceedings of searched person; or immediately after the assessment proceedings of the searched person. This view of the Hon'ble Supreme Court though in the context of proceedings under section 158BD of the Act has to be applied even for the proceedings to be initiated under section 153C of the Act. In other words, where any document is found or requisitioned or books of account are found and / or any other asset or valuable article or thing is found, which belongs to a person other than searched person, then the Assessing Officer of searched person has to record satisfaction in this regard before handing over the documents to Assessing Officer having jurisdiction over ‘other person’, other than searched person. In such scenario, where provisions

Now, coming to the facts of present case. We make reference to sequence of events as noted by CIT(A) at page 5 of appellate order. On 29.07.2003, search action was carried out at the office and residential premises of search party. On 27.03.2006 order under section 143(3) r.w.s. 153A of the Act was passed in the case of searched party. Further, on 15.06.2007, the Assessing Officer of searched party passed on information / seized documents to the jurisdictional Assessing Officer of assessee. On 18.02.2008, notice under section 153C of the Act was served upon the assessee. On 25.02.2008, letter was filed by assessee stating that original return of income filed be treated as return filed in response to notice issued under section 153C r.w.s. 153A of the Act. Thereafter, assessment proceedings were taken up on various occasions and assessment order under section 143(3) r.w.s. 153C of the Act was passed on 30.12.2008. In such scenario, where assessment of searched person was completed on 27.03.2006, then the handing over of seized documents by Assessing Officer of searched person to the jurisdictional Assessing Officer of assessee on 15.06.2007 is belated and is beyond the period prescribed in section 153C of the Act for initiation of proceedings under section 153C of the Act. Accordingly, we hold so. Even the Circular issued by CBDT dated 31.12.2015 lays down such proposition, in turn, applying the ratio laid down by the Hon'ble Supreme Court in the case of M/s. Calcutta Knitwears (supra). Accordingly, we hold that proceedings initiated under section 153C of the Act are beyond the time prescribed and hence, are invalid and consequently, assessment order passed under section 143(3) r.w.s. 153C of the Act stands

The facts and issues in ITA No.1385/PUN/2016 are identical to the facts and issues in ITA No.1384/PUN/2016 and our decision in ITA No.1384/PUN/2016 shall apply mutatis mutandis to ITA No.1385/PUN/2016.

In the result, both the appeals of assessee are allowed.