TaxTMI 
TaxTMI 
2018 (3) TMI 1995
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....there is apparent mistake in both these tribunal orders in respect of this year because in these two tribunal orders, it was held that the assessment order for this year also along with the orders for six preceding years are bad in law and were quashed for this reason that the A. O. has not recorded satisfaction as required u/s 153C in his capacity of A.O. of the searched person. 3. Learned DR of the revenue has made written submissions before us. In the same, it is submitted that the search has taken place u/s 132 on 25.10.2010 in the case of Shri K. Raghavacharyulu and proceedings u/s 153C were initiated in these two cases for A. Ys. 2005 - 06 to 2010 - 11 but the assessment proceedings for A. Y. 2011 - 12 i.e. the year of search were completed u/s 144 r.w.s. 153D of I T Act. It is submitted that setting aside the assessment for this year on this basis that satisfaction u/s 153C was not recorded by the A.O. of the searched person is an apparent mistake and it should be rectified u/s 254 (2) of I T Act. Reliance has been placed on a judgment of Hon'ble Delhi High Court rendered in the case of SSP Aviation Ltd. as reported in 346 ITR 177 and in particular, Para 14 of this judgme....
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....h assessment year falling within such six assessment years. The reference to "such six assessment years" is with reference to 6 assessment years referred to in section 153A(1)(b) of the Act. 5. Second proviso to section 153A of the Act provides for abatement of pending assessments as on the date of search. The effect of the second proviso is that any assessment pending as on the date of search with reference to 6 assessment years referred to in 153A(1)(b) of the Act would get abated. 6. Section 153C of the Act provides for assessment in the case of other person and issue of notice and assess or reassess the income of the other person in accordance with the provisions of section 153A of the Act subject to conditions contemplated therein. 7. First proviso to section 153C of the Act refers to second proviso of section 153A(1) of the Act for determination of abatement of assessments in the case of proceedings being initiated under section 153C of the Act. The date of search for the purpose of abatement referred to in section 153A of the Act is provided to be the date of receiving the books of account or documents or asset seized or requisitioned by the Assess....
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....provisions of Section 153A. Now a question may arise as to the applicability of the second proviso to Section 153A in the case of the other person, in order to examine the question of pending proceedings which have to abate. In the case of the searched person, the date with reference to which the proceedings for assessment or reassessment of any assessment year within the period of the six assessment years shall abate, is the date of initiation of the search under Section 132 or the requisition under Section 132A. For instance, in the present case, with reference to the Puri Group of Companies, such date will be 5.1.2009. However, in the case of the other person, which in the present case is the petitioner herein, such date will be the date of receiving the books of account or documents or assets seized or requisition by the Assessing Officer having jurisdiction over such other person. In the case of the other person, the question of pendency and abatement of the proceedings of assessment or reassessment to the six assessment years will be examined with reference to such date." 10. The reliance of the assessee on the judgement of the Delhi High Court in the case of RRJ sec....
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....after the date of search. In any event in view of the specific language of section 153A and 153C of the Act, the period of proceedings under section 153A and 153C of the Act would not and shall not cover beyond the period excluding the financial year in which search is conducted. In other words the other person under section 153C of the Act cannot be placed in a worse/disadvantage position than the person subjected to search under section 132 of the Act and where the proceedings under section 153A of the Act being initiated. 14. Without prejudice to the above contentions, it is submitted that the issue of the period of six assessment years for the purposes of section 153C of the Act being the fresh ground raised in the course of hearing of the Miscellaneous Petition, the same cannot be entertained. Even if such a fresh ground is to be examined by this Hon'ble Tribunal, the order dated 17/10/2016 requires to be recalled and the fresh ground has to be examined in the appeal on restoration. Consideration of the fresh ground in the application under section 254(2) of the Act that to especially in the application filed by the revenue would be beyond the jurisdiction of this....
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....th reference to the date of handing over of assets/documents to the AO of the Assessee. In this regard, he has drawn our attention to Para 5.1 of this judgment in respect of facts of that case and paras 23 & 24 in respect of the decision. Hence, we reproduce these paras for the sake of ready reference. The same are as under:- "5.1 Search and seizure operations were undertaken under Section 132 of the Act in the case of Sh. B.K. Dhingra, Smt. Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. (hereafter also referred to as 'searched persons') on 20th October, 2008. Certain documents belonging to the Assessee Company and a computer hard disk containing soft copies of working papers, balance sheets and data for income tax filings, were seized during the search. The AO of the searched persons recorded a 'Satisfaction Note' on 8th September, 2010 to the effect that the documents seized and the data contained in the hard disk belonged to the Assessee and, hence, Section 153C was invokeable. On the aforesaid basis, proceedings were initiated under Section 153C and a notice dated 8th September, 2010 for the AYs 2003-04 to 2008-09 was issued to the Assessee. 23. In the p....
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....e searched person, to the AO would be subsequent to the date of the search. This, in our view, would be contrary to the scheme of Section 153C(1) of the Act, which construes the date of receipt of assets and documents by the AO of the Assessee (other than one searched) as the date of the search on the Assessee. The rationale appears to be that whereas in the case of a searched person the AO of the searched person assumes possession of seized assets/documents on search of the Assessee; the seized assets/documents belonging to a person other than a searched person come into possession of the AO of that person only after the AO of the searched person is satisfied that the assets/documents do not belong to the searched person. Thus, the date on which the AO of the person other than the one searched assumes the possession of the seized assets would be the relevant date for applying the provisions of Section 153A of the Act. We, therefore, accept the contention that in any view of the matter, assessment for AY 2003-04 and AY 2004-05 were outside the scope of Section 153C of the Act and the AO had no jurisdiction to make an assessment of the Assessee's income for that year." 7. We have....