TMI Blog2011 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... NOURABLE MR.JUSTICE AKIL KURESHI) 1. Revenue is in appeal against the judgment of the Tribunal dated 5.2.2010 raising following question for our consideration:- [i] Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in not deciding the appeal filed by the Revenue on merits and dismissing the same only on the ground that issuance of notice under Section 153C of the Act and framing of assessment in pursuance of the said notice under Section 153A of the Act is not just, proper and legal 2. From the record that we have perused with the assistance of the learned counsel for the Revenue, we notice that the issue arises out of the block assessment proceedings. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were originally filed and processed and since no additional material is found pertaining to the assessee which is held to be belonging to the assessee, the Assessing officer do not assume jurisdiction for framing assessment u/s.143C r.w.s. 153-A of the I.T. Act, 1961. We, therefore, cancel all the assessments made for all these years. Since we have cancelled the assessments, we do not propose to deal with grounds raised by the Revenue in appeals and ground raised by the assessee in Cos on merits. 4. The factual findings of the Tribunal, that when search was conducted in the premises of other assessees, no amount of money, bullion, jewellery or other valuable articles or things or books of accounts or documents belonging to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in assessing the income of the assessee under such provisions. Counsel drew our attention to a decision of the Delhi High Court in the case of S.R.Baltiboi Co. v. Department of Income Tax, (2009) 315 ITR 137 (Delhi) wherein the Bench referring to the words other person employed in section 158BD observed that the same must only be construed as referring to the other person having dealings or transactions with the party who is being searched or whose material is being seized. Otherwise, the provisions may well be seen as violative of the fundamental rights enshrined in articles 14 and 19 of the Constitution. On the other hand, counsel for the assessee opposed the admission of appeals and contended that the issue is no lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person in accordance with the provisions of section 153A: 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 subsection (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. Central issue in the present case is, can it be stated that any documents seized or requestioned during search operations belonged to the assessee. In this regard, factual conclusion of the Tribunal which are not seriously in dispute need to be noted. In the impugned order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisitioned under section 132A after the 31st day of May, 2003. Section 153B lays down the time limit for completion of assessment under section 153A. Section 153C which is similarly worded to section 158 BD of the Act, provides that where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in Section 153-A he shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person. However, there is a distinction between the two provisions inasmuch as under section 153C notice can be issued only where the mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts belong to the petitioner. It is not even the case of Revenue that the said three documents are in the handwriting of the petitioner. In the circumstances, when the condition precedent for issuance of notice is not fulfilled any action taken under section 153C of the Act stands vitiated. We find that in the present case, very similar situation has arisen. The document on the basis of which the Assessing Officer initiated proceedings under section 153C of the Act was admittedly not written by the assessee. It, of course, had certain references to the estimations and expenditure, etc. of the properties belonging to the assessee. Nevertheless, we cannot hold that such document belonged to the assessee. 6. In the result, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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