TMI Blog2021 (5) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of asset on the other side. Respondent no.2 has not mentioned about any tangible evidence wherefrom it can be deduced about undisclosed investments in any asset of the petitioner. This is a case where a concluded assessment is sought to be reopened beyond the six assessment years and therefore, in such a case provisions of the fourth proviso to section 153A is required to be interpreted strictly. That being the position and considering the long line of judicial precedents starting from Calcutta Discount Co. Ltd Vs ITO, [ 1960 (11) TMI 8 - SUPREME COURT] we are of the view that the matter would require further deliberation by the Court and considering the jurisdictional issue involved it would not be just and proper to relegate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 is liable to be interfered with by this Court under Article 226 of the Constitution of India. He has referred to the provisions of section 153A including the fourth proviso thereto as well as to the explanation given in the Finance Bill, 2017 while introducing the fourth proviso to section 153A. He has also referred to circular no. 2/2018 of the Central Board of Direct Taxes in this connection. Basic contention of Mr. Pardiwalla is that to invoke jurisdiction under section 153-A, tangible evidence must be found during a search or seizure operation and the same must be represented in the form of undisclosed investment in any asset. Reverting to the impugned speaking order, he submits that even if allegation of the revenue is accepted, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lla has distinguished the decisions relied upon by Mr. Sharma and submits that when a notice is assailed on the ground of being without jurisdiction, an assessee cannot be precluded or prevented from invoking the writ jurisdiction of the High Court under Article 226 of the Constitution of India. 6. We have heard learned counsel for the parties. 7. By the impugned notice dated 13.01.2021, respondent no.2 has directed the petitioner to prepare a true and correct return of total income for the assessment year 2011-2012 and to submit the same before him. This notice was issued under section 153A of the Act. On being sought for by the petitioner, respondent no.2 forwarded the reasons recorded for initiation of proceedings under section 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate in the relevant assessment years; such income or part thereof has escaped assessment for such year or years; and that such search or requisition should take place on or after 01.04.2017. As per explanation-1 thereto, the expression relevant assessment year has been defined to mean an assessment year preceding the assessment year relevant to the previous 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 assessment year relevant to the previous year in which search is conducted or requisition is made. The expression asset has been defined in explanation-2 as including immovable property being land or building or both, shares and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment year or years beyond the sixth assessment year upto the tenth assessment year where tangible evidence are found during search or seizure operation and the same is represented in the form of undisclosed investment in any asset. 11. Keeping in mind the above legal parameters, if we examine the impugned speaking order dated 03.02.2021, prima facie, there is no indication about any tangible evidence showing undisclosed investment in the assets of the petitioner. In paragraph no.5 of the aforesaid order, we find that according to respondent no.2, there is a bogus liability which has resulted into emergence of asset on the other side. Respondent no.2 has not mentioned about any tangible evidence wherefrom it can be deduced about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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