TMI Blog2015 (3) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... It is evident that AO assumed jurisdiction on 28.2.2001 when requisition was issued. Section 153A also postulates that action should be initiated as per this section from the date on search u/s. 132 or section 132A by requisition. In the present case, since requisition was made prior to 31-05-2003 when section 153A was not in existence, the assumption of jurisdiction u/s. 153A of the Act by the AO is bad in law and the same is liable to be quashed.AO was not correct in assuming his jurisdiction u/s. 153A of the Act inasmuch as the requisition u/s. 132A was made in this case prior to 31-05-2003. Since we have already quashed the assumption of jurisdiction - Decided in favour of assessee. - IT APPEAL NOS. 1939 & 1940 (KOL.) OF 2008 - - - Dated:- 16-12-2014 - Mahavir Singh, And Shamim Yahya,JJ. For the Appellant : A.K. Tribrewal, FCA AR. For the Respondent : Varinder Mehta, CIT Sr. DR. ORDER Shamim Yahya, Accountant Member These appeals by the assessee are directed against the separate orders of the ld. CIT(A) pertaining to assessment years 2001-02 and 2003-04 respectively. Since the issues are connected, these appeals were heard together and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to raise a new ground, provided it was a ground of law and did not necessitate any fresh evidence to be brought on record. In this context the appellant may also be permitted to refer to the following decisions of the Hon'ble Supreme Court. (a) Jute Corporation of India Ltd v. CIT 187 ITR 688] (b) National Thermal Power Co. Ltd v. CIT [229 ITR 383] The aforesaid two decisions have been followed by different High Courts and the Tribunals through out the country. The petitioner may be permitted to refer to the following decisions:- (a) CIT v. Mohd. Iqbal Ors (1996) 221 ITR 481 (MP) (b) Gorakhpur Petro Oils Ltd v. CIT (2005) 95 TTJ 489 (All.) TM) (5) In view of what has been stated hereinabove the appellant craves leave of the Hon'ble Income Tax Appellate Tribunal, Kolkata for allowing the appellant to take the aforesaid Additional Ground in the appeal pending for adjudication before your Honour. The appellant, therefore, respectfully prays that your Honours would be graciously pleased to: (a) admit the aforesaid additional ground; (b) adjudicate the same in the interest of justice; and (c) pass such order or orders as your Honours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned u/s. 132A of the Act after 31-05-2003. The ld. Counsel submitted that for assessment in case of search or requisition after 31-05-2003 provisions of section 153A applies. Hence, he submitted that in the present case assumption of jurisdiction u/s. 153A by the AO is liable to be quashed. He further submitted that the date on which the seized items/precious stones and the bank draft were handed over to the department are not at all material, which justified the assumption of jurisdiction by the AO u/s. 153A of the Act. In this regard the ld. Counsel of the assessee has placed his reliance on the decisions of the Hon'ble Delhi High Court in the case of Sanjay Gupta v. CIT [2014] 366 ITR 18/49 and in the case of MDLR Resorts (P.) Ltd v. CIT [2014] 361 ITR 407. 9. In the light of above, the ld. Counsel of the assessee submitted that on the facts of the case the AO should have issued notice under the Chapter XIVB of the Act . Since the AO has assumed his jurisdiction u/s. 153A the assumption of jurisdiction is bad in law and the same is liable to be quashed. 10. The ld. DR, on the other hand, could not cogently controvert the above submissions of the ld. Counsel of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - For the purposes of this sub-section, a place where a business or profession is carried on shall also include any other place, whether any business or profession is carried on therein or not, in which the person carrying on the business or profession states that any of his books of account or other documents or any part of his cash or stock or other valuable article or thing relating to his business or profession are or is kept. (2) An income-tax authority may enter any place of business or profession referred to in sub-section (1) only during the hours at which such place is open for the conduct of business or profession and, in the case of any other place, only after sunrise and before sunset. (3) An income-tax authority acting under this section may,- (i) if he so deems necessary, place marks of identification on the books of account or other documents inspected by him and make or cause to be made extracts or copies therefrom, (ia) impound and retain in his custody for such period as he thinks fit any books of account or other documents inspected by him: Provided that such income-tax authority shall not- (a) impound any books of account or other documents ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Director or a Deputy Director or an Assessing Officer, or a Tax Recovery Officer, and for the purposes of clause (i) of sub-section (1), clause (i) of sub-section (3) and sub-section (5), includes an Inspector of Income-tax; (b) proceeding means any proceeding under this Act in respect of any year which may be pending on the date on which the powers under this section are exercised or which may have been completed on or before such date and includes also all proceedings under this Act which may be commenced after such date in respect of any year. 12. Now, we also refer to the provisions of section 153A. Section 153 A: 153A. Assessment in case of search or requisition.- (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 in May, 2003, the Assessing Officer shall - (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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-3-2001. Since none of these events occurred after 31-05-2003 admittedly as per provisions of the Income-tax Act, the assumption of jurisdiction u/s. 153A of the Act is not sustainable. In this regard, we agree with the ld. Counsel of the assessee that section 158BC or section 158BD was applicable under Chapter XIVB of the Act in this case. The AO could have only assumed the jurisdiction under that Chapter XIVB. Section 158BI of this Chapter provided that provision of this Chapter was not applied where search was initiated u/s. 132 or books of account and other document or any assets are requisitioned u/s. 132A after 31-05-2003. From the above, it is amply clear that the provisions of section under Chapter XIVB of the Act were applicable where requisitions have been made u/s. 132A upto 31-05-2003. In this case since requisition was made on 28-02-2001, admittedly, the provisions of section under Chapter XIVB of the Act were applicable. Hence, assumption of jurisdiction otherwise than by recourse to Chapter XIVB is not sustainable /applicable as per law. 14. Thus on plain reading the provisions of section 132A, 153A, 158BI of the Act, it is clear that the assumption of jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction could have been assumed only under Chapter XIVB i.e from the date on which the authorized officer has made the requisition and not the date when he received the records/assets pursuant thereto. In this regard, we may also gainfully refer to the decision of the Hon'ble Delhi High Court in the case of MDR Resorts P.Ltd (supra). The exposition by the Hon'ble Delhi High Court held in para 17, which is reproduced hereunder:- Para 17 what is noticeable that the mandate and language Section 153A (1) does not make any reference to panchnama or the date of panchnama. It does not state that the panchnama is a pre-condition for invoking the said Section. The words used by the Legislature are 'search is initiated under section 132... The word 'initiate' means to commence or start. The section is invoked and applicable when the search is 'initiated'. In other words, the section ticks of and comes into play when the search commences or is undertaken against a person. The expression 'initiate' had come up for interpretation before the Karnataka High Court in CIT v Wipro Finance Ltd [2010] 323 ITR 467/[2009] 176 Taxman 233 in relation to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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