2016 (8) TMI 813

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....) A. Nos.61-63/Kol/2007, pertaining to the assessment years 2001-02, 2002-03 and 2003-04, allowed the appeals preferred by the assessee. The aggrieved revenue has come up in appeal. The following questions of law were formulated on September 10, 2008: "1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is justified in not holding that all assessments were made under section 143(1) of the I.T. Act, therefore, disallowance as per law were not earlier made. As per section 153(c) of the I.T. Act assessment is to be made afresh and income to be assessed or reassessed. The meaning of reassessment is that that there is no need to resort to section 147 of the I.T. Act and to consider the d....

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....o incriminating material was found which may have led the revenue to exercise power under section 153C read with section 153A. He drew our attention to sub-section 1 of Section 153C which provides as follows:- "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 bo....

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....is made except in cases where any assessment or reassessment has abated.]" He contended that even when assessment is made on the basis of a search under section 132 or a requisition made under section 132A, the power can only be resorted to provided any incriminating material is found. Existence of incriminating material is necessary before exercising power under the aforesaid sections. He, in support of his submission, relied upon the words "have a bearing on the determination of the total income of such other person". If the search or requisition did not unearth any incriminating material, the search or requisition was futile and can have no bearing on the determination of the total income of such other person. There shall thus be no o....

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....ence of an undisclosed income is drawn during the course of enquiry, during search or during post-search enquiry, Section 153C would have no application. Thus, the detection of incriminating material leading to an inference of undisclosed income is a sine qua non for invocation of Section 153C of the Act." Mr. Nizamuddin, learned advocate, appearing for the revenue-appellant submitted that it is true that section 153C read with section 153A proceeds on the basis of search under section 132 or requisition under section 132A. There is no reference to any survey under section 133A. He, therefore, did not dispute the submission made by Mr.Jain that power under section 153C read with section 153A could only have been exercised in the case of ....