TMI Blog2021 (8) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... W. P. (C) No. 2857 of 2018 - - - Dated:- 10-8-2021 - THE CHIEF JUSTICE DR. S. MURALIDHAR And JUSTICE B. P. ROUTRAY For the Petitioner : Mr. Sidhartha Ray, Advocate For the Respondent : Mr. R. S. Chimanka, Senior Standing Counsel ORDER Dr. S. Muralidhar, CJ. 1. The challenge in this writ petition is to an assessment order dated 29th December, 2017 passed by the Assistant Commissioner of Income Tax (ACIT), Central Circle-I, Bhubaneswar (Opposite Party No.2) under Section 143 (3) read with Section 153A of the Income Tax Act, 1961 ( the Act ) for the assessment year (AY) 2015-16. 2. The background facts are that the Petitioner is the sole Proprietor of M/s. Cashew Home. She filed a return of income for the AY in question on 29th September, 2015 disclosing a total income of ₹ 7,98,240/-. 3. A search was conducted under Section 132 of the Act at the Assessee s residential premises and at a locker No.87 with the State Bank of India in Jeypore, which she jointly held with Smt. J. Kavita on 26th February, 2016. The Panchanama prepared for the said search and seizure shows that nothing was found or seized. 4. After the search, the Assessee s case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at during the search nothing incriminating was unearthed. The payment in cash of ₹ 20,000/- or above was detected in respect of a single party on a single day and that too during the course of survey on 12th February, 2016 and not during the search on 26th February, 2016. 9. Mr. Chimanka, learned Senior Standing Counsel for the Income Tax Department, on the other hand, sought to defend the assessment order which was in turn based on the position found in the cash book and books of account. He submitted that since the impugned assessment order was an appealable, the Petitioner should be relegated to that statutory remedy. 10. The above submissions have been considered. It is seen that in the counter affidavit filed by the Opposite Parties no objection as to the maintainability of the petition is taken. Moreover, the present petition has been pending in this Court for over three years and the Court does not consider it expedient at this stage to relegate the Petitioner to the statutory remedy of an appeal. In any event, for the reasons explained hereafter the Court finds that impugned assessment order is entirely without jurisdiction. Therefore, this Court is not preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether Section 153A can be invoked even under such situation . That question was, therefore, left open. As far as CIT v Chetan Das Lachman Das (supra) is concerned, in para 11 of the decision it was observed: 11. Section 153A (1) (b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or Information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A can be arbitrary or made without any relevance or nexus with the seized material. Obviously, an assessment has to be made under this Section only on the basis of seized material. 61. It appears that a number of High Courts have concurred with the decision of this Court in Kabul Chawla (supra) beginning with the Gujarat High Court in Principal Commissioner of Income Tax v. Saumya Construction Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 132A, as the case may be, shall abate. Sub- section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub- section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading Assessment in case of search or requisition . It is well settled as held by the Supreme Court in a catena of decisions that the heading or the Section can be regarded as a key to the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court In the case of CIT v. Jayaben Ratilal Sorathia (2013 (7) TMI 850 Guj wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years ; however, there must be some incriminating material available with the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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