Quashed

Abharan Jewellers v. the Additional Commissioner of Income Tax

Karnataka HC29 Oct 2024WP/8577/2018

Case brief

AI extract

What is this about?

The High Court set aside reassessment proceedings and notices issued under Section 147 of the Income Tax Act where they were based solely on incriminating materials seized from a third party's premises. The Court held that such proceedings must be initiated under Section 153C, rendering the Section 147 proceedings without jurisdiction.

What did the court decide?

Notices and orders under Sections 148, 143(3)/147, 156, and 271(1)(c) set aside. Liberty granted to proceed under Section 153C.

Abharan Jewellers Vs the Additional Commissioner of Income Tax — Income Tax | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 8577 OF 2018 (T-IT)

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BETWEEN:

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ABHARAN JEWELLERS, A PARTNERSHIP FIRM UNDER THE PARTNERSHIP ACT, 1932, NO.192, OPP: ISKCON, WEST OF CHORD ROAD, MAHALAXMI LAYOUT, BENGALURU - 560 086, REPRESENTED BY ITS GPA HOLDER SRI. PRATAP M. KAMATH.

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…PETITIONER

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(BY SRI. A. SHANKAR, SR. ADVOCATE FOR SRI. GURUMURTHY M., ADVOCATE)

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AND:

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Digitally signed by H K HEMA Location: High Court of Karnataka

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THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE 6(2), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095. NO.1

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THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 6(2)(1), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095. NO.2

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…RESPONDENTS

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(BY SRI. E.I. SANMATHI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE ISSUED UNDER SECTION 148 DATED

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1.8.2016 BY RESPONDENT NO.2 MARKED AS ANNEXURE-A1 FOR THE A.Y.2012-13 AS BAD IN LAW AND ETC.,

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.I.ARUN

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ORAL ORDER

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The petitioner in the instant petition has challenged

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the order of assessment dated 29.12.2017 (Annexure-A2) passed under Section 143(3) read with Section 147 of the Income Tax Act (for short 'the Act') and consequently has sought for setting aside the notice dated 01.08.2016 (Annexure-A1) issued under Section 148 of the Act, notice of demand dated 29.12.2017 issued under Section 156 of the Act pursuant to the said assessment order (AnnexureA3), notice of penalty issued under Section 274 read with Section 271(1)(c) of the Act pursuant to the impugned assessment order (Annexure-A4).

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The case of the petitioner is that he had filed necessary returns for the Assessment Year 2012-13. Thereafter, upon a search conducted by the authorities

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concerned on the premises of a third party, certain records were seized. Based on the said records, the assessment filed by the petitioner was sought to be reopened. It is contended that, when reopening of the assessment is done solely based on any materials seized from the premises of a third party, proceedings have to be initiated under Section 153C of the Act and not under Section 147 of the Act.

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Per contra, the learned counsel for respondents submits that in the instant case, the assessing Officer had reason to believe that the income of the petitioner has escaped assessment and the said, 'reason to believe', is based upon the information received from another officer from the Income Tax Department and thus, it satisfies the criteria required under Section 147 of the Act. It is also contended that even presuming that the reopening is done only based upon the materials seized from the premises of a third party, even then the revenue has a discretion to proceed against the petitioner either under Section 153C

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or under Section 147 of the Income Tax Act. It is further submitted that the petitioner is having an alternative and efficacious remedy as the impugned assessment order is appealable.

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Based on the contention raised by the contesting parties, the questions that arise for

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consideration in the instant petition are:-

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1) given the facts and circumstances of the case, can it be construed that the assessing Authority has re-opened the assessment in the present case based on the 'reason to believe' that he had on the information he received from another Officer of the Income Tax Department or whether the materials placed before the Court establishes that order of re-assessment has been issued in the instant case solely based upon the materials seized in the premises of the third party;

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2) if assessment is re-opened solely based upon the materials seized from the premises of the third party, does the revenue has the discretion to proceed under either Section 153C of the Act or Section 147 of the Act or it should necessarily proceed under only Section 153C of the Act ;

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3) When the petitioner has questioned the jurisdiction of the Assessing authority under Section 147 of the Act, basing solely on the ground that there is an appeal provided against the assessment order, can't the writ petition be entertained?

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Regarding question No.1, the revenue in its objections submitted as follows:

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" (6) The records clearly show that the petitioner has filed its return of income for the assessment year in question and in view of the tangible materials secured in the course of search in case of Sri.Goutham Jain and others, the reassessment proceeding is taken up and these materials were not there in regular assessment proceedings."

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Further, in Annexure-R1, which is the communication of reasons for re-opening of the

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assessment, it has been stated as follows:

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"In connection with the reopening of assessment in the case of M/s. ABHARANA JEWELLERS for A.Y.2012-13, the reasons recorded are as below:

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"Consequent to the search and seizure action in respect of Shri.Goutham Jain and others it was found that M/s. Rajan Gems a bogus concern is actively involved in providing non-genuine purchase bill and as such M/s. Abharana Jewellers is a beneficiary of such non genuine purchase bill to the extent of Rs.1,21,65,109/- which has resulted in inflation of purchases as a result income chargeable to tax amounting to Rs.1,21,65,109/- has escaped assessment within the meaning of provisions of section 147 of the IT Act"”.

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The aforesaid material goes to establish that in

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the instant case, re-assessment has been ordered as against the petitioner solely based upon the materials seized from the premises of a third party.

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With regard to question No.2, the relevant

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provision of Section 147 of the Act as it was before amendment, which is applicable to the present case and Sections 153C & 153A of the Act read as under:

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" Income escaping assessment .

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147. If any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year (hereinafter in this section and in sections 148 to 153 referred to as the relevant assessment year)"

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Section 153C of the Act, reads as follows:

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Assessment of income of any other person .

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153C. (1) Not withstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that,-

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(a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or

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(b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to,

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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 notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person [ for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and] for the relevant assessment year or years referred to in sub-section (1) of section 153A].

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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:

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Provided further that the Central Government may by rules made by it and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately proceeding the assessment year relevant to the previous year in which search is conducted or requisition, is made [and for the relevant assessment year or years as

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referred to in sub-section (1) of section 153A] except in cases where any assessment or reassessment has abated.

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(2) Where books of account or documents or assets seized or requisitioned as referred to in subsection (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-

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(a) no return of income has been furnished by such other person and no notice under subsection (1) of section 142 has been issued to him, or

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(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

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(c) assessment or reassessment, if any, has been made,

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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.

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(3) Nothing contained in this section shall apply in relation to a search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1^st day of April, 2021.

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Section 153A of the act, reads as follows:

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Assessment in case of search or requisition

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153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, [but on or before the 31^st day of March, 2021], the Assessing Officer shall-

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(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;

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(b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made [and for the relevant assessment year or years]:

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Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years [and for the relevant assessment year or years]:

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Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years [and for the relevant assessment year or years] referred to in this [sub-section] pending on the date of initiation of the search under section 132

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or making of requisition under section 132A, as the case may be, shall abate:

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Provided also that the Central Government may by rules made by it and published in the Official Gazettee (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made [and for the relevant assessment year or years]

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Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless-

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(a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakhs rupees or more in the relevant assessment year or in aggregate in the relevant assessment years;

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(b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and

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(c) the search under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017.

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Explanation 1.- For the purposes of this subsection, the expression "relevant assessment year" shall mean an assessment year preceding the assessment year relevant to the pervious year in which search is conducted or requisition is made which falls beyond six assessment years but not later than ten assessment years from the end of the

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assessment year relevant to the previous year in which search is conducted or requisition is made.

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Explanation 2.- For the purpose of the fourth proviso, "asset" shall include immovable property being land or building or both, shares and securities, loans and advances, deposits in bank account.

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(2) If any proceeding initiated or any order of assessment or reassessment made under subsection (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the [Principal Commissioner or] Commissioner:

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Provided that such revival shall cease to have effect, if such order of annulment is set aside.]

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Explanation. - For the removal of doubts, it is hereby declared that-

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(i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section;

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(ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year.

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9. Perusal of the aforementioned provisions shows

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that the above Sections 153C and 153A of the Income Tax

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Act, 1961 start with non obstante clause 'notwithstanding

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anything contained in Sections 139, 147, 148, 149, 151 and 153', which means irrespective of the said Sections when incriminatory material is seized during a search operation, the revenue is having the power to reopen the assessment and when the said incriminatory material is seized from the premises of the assessee himself, proceedings as contemplated under Section 153A of the Act has to be followed and when the same is seized from the premises of any third party, procedure as contemplated under Section 153C of the Act has to be followed. Thus, the proceedings contemplated under Sections 153A and 153C of the Act is different from the proceedings contemplated under Section 147 of the Act. The High Court of Rajasthan while examining the similar matter in the case of Shyam Sundar Khandelwal vs. Assistant Commissioner of Income-tax reported in [2024] 161 taxmann.com 255 (Rajasthan) in paragraph Nos.26, 27, 28, 38 and 40 has held as under:

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"26. Special procedure is prescribed under section 153A to 153D for assessment in cases of

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search and requisition. There cannot be a quibble with the proposition that the special provision shall prevail over the general provision. To say it differently the provisions of section 153A to 153D have prevalence over the regular provisions for assessment or reassessment under section 143 & 147/148.

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27. Section 153A and 153C starts with nonobstante clause. The procedure for assessment/reassessment in section 153A, 153C in cases of search or requisition has an overriding effect to the regular provisions for assessment or reassessment under sections 139, 147, 148, 149, 151 & 153.

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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 thereunder were circumscribed in the scope of newly substituted section 148.

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38. The petitioner relied upon the decision of the Karnataka High Court in the case of Sri.Dinakara Suvarna (supra). It would be relevant to quote Para-10:

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10.Admittedly no proceedings were initiated under section 153C of the Act. Thus, there is patent non-application of mind. It is relevant to note that the author of the diary Smt.Soumya Shetty had passed away prior to the date of search. It was argued on behalf of the Revenue that Shri.Ashok Kumar Chowta had offered tax on lump-sum income.

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40. In view of above discussion the notices issued under section 148 and the impugned orders are quashed. However, the respondents shall be at liberty to proceed against the petitioners in accordance with law".

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Our High Court in the case of "Sri. Dinakara

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Suvarna vs. Deputy Commissioner of Income Tax"

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reported in ITA No.16/2015 has formulated one of the questions of law, as follows:

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"b) Whether Tribunal erred in law in not holding that there was no reason to believe that income escaped assessment and all mandatory conditions to reopen the assessment under Section 147 of the Act were not satisfied on the facts and circumstances of the case?"

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and while answering the same in paragraph Nos.5 and 10, has

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held as under:

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"5. The sum and substance of Shri.Chandrashekar's argument is, Revenue ought to have followed the procedure contemplated under Section 153C because, it's case is based on material found during the search of the premises of one Shri.Ashok Kumar Chowta.

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10. Admittedly no proceedings were initiated under Section 153C of the Act. Thus, there is patent non-application of mind. It is relevant to note that the author of the diary Smt.Soumya Shetty had passed away prior to the date of search. It was argued on behalf of the Revenue that Shri.Ashok Kumar Chowta had offered tax on lumpsum income".

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Perusal of the aforementioned judgments goes

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to show that when the revenue wants to reopen the

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assessment solely based upon the materials seized during search operation conducted on a third party premises, as in the instant case, the proceedings have to be initiated as contemplated under Section 153C of the Act and it is not open for them to proceed under Section 147 of the Act.

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With regard to question No.3, as the impugned order passed is without jurisdiction, mere availability of an alternative remedy is not a ground to dismiss the writ petition.

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As the impugned order has been passed under erroneous provisions of law and not under Section 153C of the Act as it is warranted under the given facts and circumstances the case, the same is liable to be set aside. Hence, the following:

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ORDER

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i) The notice issued under Section 148 of the Income Tax Act dated 01.08.2016 for the Assessment Year 2012-13 by respondent No.2 (Annexure-A1) to the writ petition is hereby set aside;

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ii) The order of assessment passed under Section 143(3) read with Section 147 of the Act, dated 29.12.2017 for the assessment year 2012-13 by respondent No.2 (Annexure-A2) is hereby set aside;

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iii) The notice of demand issued under Section 156 of the Act pursuant to the impugned assessment order passed under Section 143(3) read with Section 147 of the Act, dated 29.12.2017 for the assessment year 2012-13 by respondent No.2 (Annexure-A3) is hereby set aside;

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iv) The notice of penalty issued under Section 274 read with Section 271(1)(c) of the Act dated 29.12.2017 by respondent No.2 (Annexure-A4) for the assessment year 2012-13 is hereby set aside;

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v) However, liberty is reserved to the respondents to proceed against the petitioner in accordance with law;

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vi) Accordingly, Writ Petition is

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disposed of .

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Sd/(M.I.ARUN) JUDGE

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GPG

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List No.: 1 Sl No.: 81 CT: BHK

Abharan Jewellers v. the Additional Commissioner of Income Tax

Case brief

What is this about?

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Abharan Jewellers v. the Additional Commissioner of Income Tax

Case brief

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