2025 (11) TMI 821 - HC - Income Tax

S.153C notice valid only when officers satisfy seized items relate to someone else; absent satisfaction, assess under s.147

HC held that a notice under s.153C can be issued only when the Assessing Officer of the searched person and the Assessing Officer of the other person are ... Assessment u/s 153C or 147 - petitioner argues that since the assessment order impugned refers to a search and survey operation having been conducted at various spots of finance brokers, the assessment proceeding should have been initiated u/s 153C - HELD THAT:- A meaningful reading of the provisions of section 153C of the said Act would reveal that a notice under section 153Cof said Act of 1961 can be issued only when both - the Assessing Officer of the searched person as well as the Assessing Officer of the person other than the searched person are-satisfied that a) either any property (i.e. money, bullion, jewellery or other valuable article or thing) seized or requisitioned belongs to a person other than the searched person or b) any books of accounts or document seized or requisitioned pertains to or any information contained therein relates to a person other than the searched person referred to in Section 153A of the Act. In the case at hand, there is nothing on record to demonstrate that any of the two the Assessing Officers had reached such satisfaction. There is nothing on record to demonstrate that any incriminating material had been found against the petitioner in the search and seizure operation. In fact, the assessment order reveals that the assessment proceeding is based on information received from ADIT(Inv), Unit 2(4), Kolkata as available in insight portal as also evidences collected not only during the search proceedings but also post-search proceedings. It is settled law that if incriminating material during a search and seizure procedure is not found, then in that case assessment is to be completed under Section 147 and not under Section 153A or 153C of the said Act of 1961. ISSUES PRESENTED AND CONSIDERED 1. Whether the assessment proceedings ought to have been initiated under Section 153C of the Income Tax Act, 1961 (relating to persons other than the searched person) instead of Section 147 when no incriminating material was found against the petitioner during search and seizure. 2. Whether the absence of recorded satisfaction by the Assessing Officer(s) under Section 153C (both the AO of the searched person and the AO of the other person) precludes initiation of proceedings under Section 153C. 3. Whether a jurisdictional objection raised for the first time in a second writ petition, having been available at earlier stages of the assessment proceedings (e.g., on issuance of notice under Section 148A(b) and order under Section 148A(d)), is maintainable, or whether the availability of an alternate remedy under Section 246 precludes entertaining the writ petition. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Proper statutory provision for assessment when no incriminating material is found: Legal framework Section 153C provides for transmission of seized/requisitioned books/documents/assets to the AO having jurisdiction over a person other than the searched person where the AO is satisfied that such items belong to or pertain to that other person; the receiving AO may then proceed under Section 153A as applicable to that other person for the relevant block/six-year period. Issue 1 - Precedent Treatment The Court relied on the Supreme Court's exposition that if during search no incriminating material is found with respect to the other person, completed/unabated assessments cannot be reopened under Section 153A/153C and the Revenue's remedy, subject to statutory conditions, is to proceed under Sections 147/148. The Court also relied on a Division Bench summary (Naveen Kumar Gupta) of the conditions precedent for jurisdiction under Section 153C. Issue 1 - Interpretation and reasoning The Court held that Section 153C jurisdiction is contingent upon satisfaction being recorded by the AO of the searched person that seized/requisitioned materials belong to or pertain to the other person, transmitting that satisfaction to the other person's AO, and the other AO being satisfied as to bearing on determination of total income. Where no incriminating material is found against the non-searched person, the statutory preconditions for invoking Section 153C are absent. The present assessment record showed reliance on information from an intelligence unit and evidences collected post-search rather than any incriminating material found against the petitioner at search; therefore reassessment under Section 147 was proper. Issue 1 - Ratio vs. Obiter Ratio: Where no incriminating material relating to a non-searched person is found during search/seizure, and required satisfactions under Section 153C are not recorded, the Revenue's recourse for completed/unabated assessment years is to proceed under Sections 147/148 (subject to fulfilment of their conditions). This follows the Supreme Court's reasoning preserving reassessment powers under Sections 147/148 when Section 153A/153C cannot be invoked. Issue 1 - Conclusion The Court concluded that initiation of assessment under Section 147 was legally permissible in the absence of incriminating material satisfying Section 153C preconditions; the petitioner's contention that proceedings mandated Section 153C was sans substance. Issue 2 - Requirement of recorded satisfaction by both Assessing Officers under Section 153C: Legal framework Section 153C(1) and the judicial exposition require: (a) the AO of the searched person to be satisfied that seized/requisitioned items belong/pertain to a person other than the searched person and to record and transmit that satisfaction; and (b) the AO of the other person to be satisfied that the material has bearing on determination of total income, before issuing notice and proceeding under Section 153A. Issue 2 - Precedent Treatment The Court cited the Division Bench summary (Naveen Kumar Gupta) encapsulating these sequential preconditions and the Supreme Court (Abhisar Buildwell) confirming that absence of incriminating material precludes Section 153A/153C invocation for completed assessments. Issue 2 - Interpretation and reasoning The Court observed that the record contained no indication that either AO had reached the requisite satisfaction; there was no demonstration of incriminating material against the petitioner found during search. The assessment order's reliance on intelligence-portal information and post-search evidence does not substitute for the statutory mandatory satisfaction and transmission steps under Section 153C. Issue 2 - Ratio vs. Obiter Ratio: The jurisdiction to assess/reassess under Section 153C is strictly predicated on the statutory sequence of satisfactions and transmission; absence of those steps negates Section 153C jurisdiction. This is binding for the facts considered. Issue 2 - Conclusion The Court concluded that because the statutory conditions (recorded satisfactions and transmission) for Section 153C were not satisfied, proceedings under Section 153C could not have been initiated; reassessment under Section 147 remained proper. Issue 3 - Timeliness and forum: raising jurisdictional objection first in second writ and availability of alternate remedy under Section 246: Legal framework Writ jurisdiction under Article 226 is discretionary. Jurisdictional defects that go to the root of jurisdiction may be raised at any stage, but the availability of an alternative and efficacious statutory remedy (appeal under Section 246) and conduct of the litigant in not raising an available point earlier may influence exercise of discretionary relief. Issue 3 - Precedent Treatment The Court referenced the principle that jurisdictional issues can be raised at any time but noted that raising such an issue belatedly, particularly in a second writ round when the point was available earlier, may suggest forum-shopping and avoidance of statutory appellate process. Issue 3 - Interpretation and reasoning The Court noted the petitioner could have raised the Section 153C jurisdiction point at the stage of notice under Section 148A(b) or upon receipt of the order under Section 148A(d). The petitioner's failure to do so and first raising it in the second writ proceeding created the impression of seeking to bypass the appellate remedy. Given the availability of an efficacious remedy before the Appellate Authority under Section 246 and the absence of any compelling jurisdictional defect on the record, the Court declined to entertain the writ petition under Article 226. Issue 3 - Ratio vs. Obiter Ratio: Where an alternative and efficacious statutory remedy exists (appeal under Section 246) and no clear jurisdictional nullity is demonstrated on the record, the High Court may refuse to entertain a writ petition raising issues that could have been and ought to be pursued before the statutory appellate authority. Obiter: The Court's observation on the impression of delay and forum avoidance is contextual to the facts and conduct in the matter. Issue 3 - Conclusion The Court dismissed the writ petition as not maintainable in view of the availability of the appellate remedy under Section 246 and the petitioner's failure to raise the issue earlier; however, the Court permitted filing of the statutory appeal within 15 days and directed the Appellate Authority to consider it on merits without raising limitation.