TaxTMI 
TaxTMI 
2024 (8) TMI 1366
X X X X Extracts X X X X
X X X X Extracts X X X X
....ucted on the Surendra Kumar Jain Group and as is evident from copy of reasons recorded made available at Page No. 21-38 of the Paper Book, an assessment in the present case was framed u/s 147 of the Act in the case of the assessee on the basis of material found during the course of search of the Surendra Kumar Jain Group. 3. The Ld. Counsel appearing for the assessee, at the outset has raised the issue of illegal exercise of jurisdiction u/s 147 of the Act instead of Section 153C of the Act. 4. In this context, we find that the Additional Ground No. 11 has been raised as follows:- "11. On the facts and circumstances of the case, the AO as well as the Id. CIT(A) has erred both on facts and in law in ignoring the settled position of law that if any material found during the course of search, belongs to a person other than the person in whose case search was conducted, then assessment of such person shall be computed u/s 153C of the Act & not u/s 148 of the Act." 5. The Ld. Counsel has submitted that due to non-obstante clause in Section 153A coupled that the principle of abatement the mechanism contained in the provisions of search assessments, the assessment can be concluded in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Saloni Kumar Prakash Vs. ITO the Hon'ble Madras High Court reported in 2023-153 Taxman.com 432 Madras, and contended the AO was justified to complete the assessment u/s 147 of the Act, considering the information found during search. 8. We have given a thoughtful consideration to the matter and are of considered view that the Judgment which the Ld. Departmental Representative has relied of Hon'ble Madras High Court has been considered by Hon'ble Rajasthan High Court in the case of Nishit Gupta son of Shri Ramesh Gupta Vs. ACIT order dated 19/03/2024 in DB Civil Writ Petition No. 18363/2019 and other connected matters. Hon'ble Rajasthan High Court has considered the issue involved in the bunch of writ petitions about the applicability of Section 153C and Section 148 of the Act in the case of seizure of material in search or requisition of books/documents relating to Assessee other than on whom the search was conducted or requisition made and after taking into consideration the history of special provisions in search cases and various judicial pronouncements including the Hon'ble Supreme Court Judgment in the case of Principal Commissioner of Income Tax, Central-3 Vs. Abhisar Bu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....& 153. 28. The language of explanation 2 to new Section 148 is akin to Section 153A and Section 153C. Corollary being that after seizing of operational period of Section 153A to 153D, the cases being dealt there under were circumscribed in the scope of newly substituted Section 148. 29. The Department has not set up a case that for initiating proceedings under Section 148 it had material other than the material seized during the search of Manihar Group. The contention was that though the material with regard to unaccounted loan advanced by the petitioner was received, the earning of interest on unaccounted loan was derivation of the AO from the material received. The submission is that the derived conclusion cannot be acted upon under Section 153C. The submission lacks merit and shall defeat the concept of single assessment order for each of relevant preceding years for assessing 'total income' in case of incriminating material found during search or requisition. 30. The argument that by enactment of Section 153A to 153D has not eclipsed Section 148 does not enhance the case of respondent to initiate the proceedings under Section 148. On fulfillment of two conditions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the case of seized material relating or belonging to the person other than on whom the search was conducted or requisition made was not the issue before the Supreme Court. 35. The Supreme Court in the case of Abhisar Buildwell P. Ltd. (supra) while dealing with the provisions of Section 153A held that in case of absence of incriminating material seized during the search, the department is not remediless for reassessing the unabated assessment on the basis of material received from the other sources and can proceed under section 148. The decision does not support the contentions raised that Section 148 is rendered redundant if Section 153C is to be resorted to in the facts of the present case. 36. The Single Bench of this Court in the case of Vijay Kumar Mehta (supra) held that if the Department has chosen not to proceed under Section 153C, no right is created to the petitioner for getting the notice under Section 148 quashed. Moreover, learned Single Judge was not having the benefit of the decision of the Supreme Court in the case of Abhisar Buildwell P. Ltd. (supra). The appeal against the order was dismissed having rendered infructuous in view of the subsequent developments ....