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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
आदेश / ORDER PER SUSHMA CHOWLA, JM:
Both the cross appeals filed by related assessee and Revenue are against separate orders of CIT(A)-V, Pune, both dated 27.08.2014 relating to assessment year 2006-07 against respective orders passed under section 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short ‘the Act’).
The cross appeals filed by related assessee and Revenue were heard together and are being disposed of by this consolidated order for the sake of convenience. In order to adjudicate the issues, reference is being made to the facts in ITA No.1971/PUN/2014 & 2057/PUN/2014.
During the course of arguments, the assessee has raised additional ground of appeal, which as per the assessee, is the jurisdictional issue to be decided first before adjudicating the issue raised on merits. The additional ground of appeal reads as under:- 1. In the facts & circumstances of the case the learned Assessing Officer has erred in invoking the provisions of section 147 when the provisions of section 153C were applicable and provisions of section 153C preclude application of the provisions of section 147 of the Income-tax Act, 1961. The assessee prays for – Quashing the proceedings u/s 147 r.w.s. 148 of the Income-tax Act, 1961 as void ab-initio.
The learned Authorized Representative for the assessee pointed out that the additional ground of appeal raised by the assessee is against invoking of provisions of section 147 of the Act when provisions of section 153C of the Act were applicable, was purely a question of law and does not require any
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investigation of facts and hence, the same merits to be admitted. He further pointed out that the addition which has been made in the hands of assessee is on the basis of document found from the premises of persons searched and thereafter, the Assessing Officer had recorded reasons for reopening the assessment under section 147 of the Act and completed assessment under section 143(3) r.w.s. 147 of the Act; whereas correct course of action was to initiate proceedings under section 153C of the Act, since the proceedings were initiated on the basis of document found during the course of search of another person, which belonged to the assessee. He further stated that where the provisions under section 153C of the Act were applicable, then no other proceedings could be initiated against the assessee.
The learned Departmental Representative for the Revenue strongly opposed the above said propositions and stressed that proceedings initiated under section 148 of the Act were in accordance with law and the assessee had duly participated in the said proceedings and assessment was completed accordingly.
We have heard the rival contentions and perused the record. The issue raised vide additional ground of appeal is against invoking of provisions of section 153C of the Act vis-à-vis provisions of section 147 of the Act initiated against the assessee. The said issue is legal issue and does not involve any investigation of facts, hence the same is admitted for adjudication.
Briefly, in the facts of the case, the assessee had furnished return of income in time which was processed under section 143(1) of the Act. The
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Assessing Officer in the case, had received information from the Office of the Deputy Director of Income Tax (Inv), Unit – II(1), Pune vide letter dated 30.03.2013. Based on the above said information, the Assessing Officer made proposal for initiating proceedings under section 147 of the Act. Information in this regard was received from the Addl.CIT, Range-8, Pune vide letter dated 30.03.2013. The Assessing Officer thereafter, issued notice under section 148 of the Act, dated 30.03.2013. The reasons recorded by the Assessing Officer for issue of notice under section 148 of the Act are reproduced at pages 2 to 8 of the assessment order. The said reasons clearly note that search and seizure action under section 132 of the Act and survey action under section 133A of the Act were carried out at the residential premises of Shri Ganesh Khandge on 12.02.2013. During the course of search proceedings, it was found that Shri Vasant Laxman Khandge i.e. assessee before us, father of Shri Ganesh Khandge, along with his brother Shri Dattatreya Laxman Khandge had sold land situated at Talegaon to Namrata Developers. The transaction related to assessment year 2006-07. The Assessing Officer while recording reasons for reopening the assessment mentioned that the assessee had declared income from long term capital gains on the sale of said land in the return of income. Secondly, from the evidences seized / impounded, it was observed that the assessee and his brother had entered into Joint Venture Agreement with Namrata Developers to evade tax on sale of land, since on the said land Namrata Developers developed 80IB(10) project and claimed deduction on the entire project. Thereafter, the Assessing Officer has raised various issues in respect of suppression and short computation of long term capital gains by increasing cost of acquisition and / or suppression the sale consideration. Reference is also made to the statement of Shri Ganesh Khandge, the person
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searched, which was recorded under section 131 of the Act on 12.02.2013. The Assessing Officer thus, held that there was reason to believe that income chargeable to tax had escaped assessment and notice under section 148 of the Act was issued to the assessee. The assessee in reply, submitted that return of income earlier filed may be treated as filed under section 148 of the Act and raised objections to the notice issued under section 148 of the Act.
The issue which arises before us is whether in such facts and circumstances of the case, where the basis of making investigation and assessment thereafter in the hands of assessee is on the basis of information unearthed during the course of search action on the premises of Shri Ganesh Khandge on 12.02.2013, then whether proceedings are to be initiated under section 148 or under section 153C of the Act. The perusal of provisions of section 153C of the Act reflects that in case any document relating to any other person is found during the course of search on a person, then the said document is to be forwarded to the Assessing Officer in-charge of the person other than the person searched. The proceedings have to be initiated against such person on the basis of such document found and impounded. Section 153C of the Act very clearly provided that where the conditions as mentioned in the said section prevail, then provisions of said section have to be applied notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 153 of the Act. The requirement of section 153C of the Act is the first satisfaction of Assessing Officer that any money, bullion, jewellery or other valuable article or thing or books of account or documents or assets belongs to a person other than the person referred in section 153A of the Act, then the books of account or documents or assets seized or requisitioned, shall be
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handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and issue notice of assessment or re-assessment of the income of other person in accordance with provisions of section 153A of the Act. The Assessing Officer has to record satisfaction that books of account or assets seized or requisitioned, have a bearing on determination of the total income of such other person. The said provisions are notwithstanding anything contained in sections as mentioned above including sections 147 / 148 of the Act. In other words, where the provisions of section 153C of the Act are attracted in given set of facts and the documents impounded during the course of search, then the proceedings have to be initiated under section 153C of the Act as per prescribed procedure and no proceedings can be initiated under section 147 / 148 of the Act. The said proposition has been held by the Pune Bench of Tribunal in the case of Joshi Wadewale Hadapsar Vs. DCIT in ITA Nos.105 & 106/PUN/2016, relating to assessment years 2009-10 & 2010-11 with lead order in the case of Mrs. Vasundhara Shailesh Joshi Vs. DCIT in ITA Nos.95 & 96/PUN/2016, relating to assessment years 2009-10 & 2010-11, vide consolidated order dated 27.03.2018. The relevant findings of the Tribunal are as under:- ―28. The first issue which arises is whether the assessment in such circumstances was to be made under section 153C or 148 of the Act and connected issue is whether such an issue of assessment being completed under a particular section was valid or not, can be raised while deciding the issue of levy of penalty under section 271(1)(c) of the Act against the income assessed in the hands of assessee. In this regard, the learned Authorized Representative for the assessee has pointed out that the issue stands covered by the ratio laid down in ITO Vs. Shri Shailendra B. Agrawal (supra) and in bunch of appeals with lead order in ACIT Vs. Shamsundar Laxman Jagtap (supra). The relevant provisions of the Act to which reference is being made is section 153C of the Act which provides as under:- ―153C. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the
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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 or belong 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 such other person notice and assess or reassess income of such other person in accordance with the provisions 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. ….. (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.‖ 29. Section 153C of the Act very clearly lays down 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 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, such 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 the Assessing Officer shall proceed against such other person and issue notice and assess or reassess the income of other person in accordance with provisions of section 153A of the Act. Section thus, very clearly lays down the procedure to be followed when during the course of search on a person any money, bullion, jewellery or valuable article or thing, or any books of account or documents or any information contained therein pertains to or relate / relates to other than the
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person searched; then first, all the said assets or information is to be handed over to the Assessing Officer, who is incharge of the person other than the person searched and then the Assessing Officer has to proceed and determine the income of the other person in accordance with provisions of section 153C of the Act. The said section very clearly also lays down that the provisions of section 153C of the Act are to be applied notwithstanding anything contained in sections 139, 147, 148, 151 and 153 of the Act. Applying the said provisions to the facts of the present case, wherein certain documents were found during the course of search at the residence of partners of assessee firm on the basis of which, additional income was to be assessed in the hands of partnership firm i.e. one of the assessees before us, then for making aforesaid addition, recourse which was open to the Assessing Officer was to initiate proceedings under section 153C of the Act. Where the provisions of said section are to be applied, then no proceedings can be initiated under section 147, 148, 151 and 153 of the Act. Accordingly, we hold that when during the course of search under section 132 of the Act at the residence of Mrs. Vasundhara S. Joshi and Shri Shailesh Joshi, loose paper bundle Nos.6, 7, 8 and 9 were found, which depicted the receipts and expenditure relating to different outlets being run under the partnership firms and the additional income was also offered by the persons searched on behalf of partnership firms, in which he was partner, on the basis of such documents found during the course of search, then for making addition in the hands of partners, provisions of section 153C of the Act are attracted. Once the said provisions are so attracted, then there is no question of initiating any proceedings under section 147 / 148 of the Act. Accordingly, we hold that proceedings initiated under section 147 / 148 of the Act are thus, not correctly initiated.‖
The issue raised in the present appeal is squarely covered by the issue before the Tribunal in Joshi Wadewale Hadapsar Vs. DCIT (supra) and following the same parity of reasoning, we hold that re-assessment proceedings initiated against the assessee under section 147 / 148 of the Act are not warranted. The Assessing Officer after receipt of information belonging to the assessee should have invoked provisions of section 153C of the Act and not section 147 / 148 of the Act. Accordingly, we hold so. Consequently, re- assessment order passed under section 148 of the Act does not stand. The Assessing Officer is thus, directed to cancel the same. Consequently, the additional ground of appeal raised by the assessee is allowed and we hold that assessment framed by the Assessing Officer is null and void. Consequently, the issue raised on merits by the assessee and the Revenue becomes academic in nature and the same are dismissed.
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The facts and issues in ITA Nos.1972/PUN/2014 & 2056/PUN/2014 are identical to the facts and issues in ITA Nos.1971/PUN/2014 & 2057/PUN/2014 and our decision in ITA Nos.1971/PUN/2014 & 2057/PUN/2014 shall apply mutatis mutandis to ITA Nos.1972/PUN/2014 & 2056/PUN/2014.
In the result, appeals of assessee are allowed and appeals of Revenue are dismissed.
Order pronounced on this 24th day of April, 2018.
Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 24th April, 2018. GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-V, Pune; The CIT-V, Pune; 4. ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “फी” / DR 5. ‘B’, ITAT, Pune; गार्ड पाईऱ / Guard file. 6. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune