TMI Blog2022 (8) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... requested is last received', the file was called for to determine the specific nature of information called for and when the relevant information was received. On verification of the file, that the information has been received in two installments, the later installment on 16.08.2019. Thus, in this case as well, the period of one year is seen to be available to the respondent and the completion of assessment on 31.12.2019 is found to be in order. Where two assessments may result, in the case of a searched entity and the related person, both emanating from the same search, but relating to two different sets of assessment years. This certainly cannot be the intention of the Legislature. In fact, the decisions of the Delhi High Court are dated 30.10.2015 and 17.08.2017 and this, perhaps, would have been the reason for insertion of the portion within parenthesis in Section 153C(1). That is, and in the interests of clarity, the block period as applicable to a noticee under Section 153C will be the same as the years constituting the block in the case of the noticee under Section 153A. The two periods are aligned. This issue is accordingly answered, adverse to the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 onwards, we are not inclined to keep these matters pending any further to await completion of yet another round of pleadings. Appellate authority can well consider this argument and would also be in a better position to appreciate the facts, since the entirety of the records would be before him. No other legal infirmities are pointed out in the orders impugned apart from those elucidated and answered above. Faced with this position, the petitioner seeks, and is granted liberty to approach the first appellate authority by way of statutory appeals. The petitioner is permitted to raise all grounds, barring those of limitation and challenge to validity of the satisfaction note, that have been decided adverse to it. Barring the aforesaid two issues, any other observation made in regard to the merits of the issues that have been dealt with under this order are only for adjudication of these Writ Petitions and will not bind the appellate authority in the disposal of the appeals. Let the appeals be filed within a period of four (4) weeks from date of receipt of a copy of this order in which event they shall be taken on file without reference to limitation. - W.P.Nos.6422, 7291, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2019. 4. On the aspect of limitation, which is one of the main arguments of the petitioner, the respondent relies on Clause (ix) of Explanation to Section 153 (b) that provides for the exclusion of the time taken for supply of 'required information' by the oversees authority to the Income Tax Department, or a period of one year whichever is less. 5. The Authority in counter of W.P.No.6431 of 2019, under the caption 'grounds', Clause (e) (iii) has this to state: In this case, for the Assessment Years 2010-11 to 2014-15, references were made for exchange of information by the competent authority under an agreement referred to in Section 90 or Section 90 A of the Act on 21.12.2017 and 22.12.2017 to Seychelles Revenue Authority and to Malaysian Revenue Authority respectively during the pendency of the assessment proceedings. The issue of reference made for exchange of information was intimated to the assessee's authorized representative vide order sheet noting dated 10.12.2018. Since the required information was not received within the period of one year, a period of one year is to be excluded for the purpose of computation of limitation in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners herein, whichever is later. 3. Applying the same, the limitation expires in the cases of RKM Powergen Private Limited petitioner in WP.Nos. 6422, 6429, 6425, 6431, 6426 of 2019 on 31.12.2018. The Revenue has sought the extended period under Clause (xi) of the Explanation to Section 153B, which reads as under: Assessment in case of search or requisition. ..... (ix) the period commencing from the date on which a reference or first of the references for exchange of information is made by an authority competent under an agreement referred to in section 90 or section 90A and ending with the date on which the information requested is last received by the Principal Commissioner or a period of one year, whichever is less; or 4. Thus, notwithstanding that the limitation expires on 31.12.2018, a further period of one year or till such time information was received by the Assessing Officer pursuant to request made to the competent authority would be available to the officer to complete the assessment 5. According to the Revenue, the request for information through competent authority was made on 26.12.2017 in respect of all five assessment years in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 Taxmann.com 391] and PCIT Vs. Sarwar Agency Private Limited [(2017) 85 Taxmann 269]. In both cases the view that the block of six years must be construed as commencing from the date of handing over of the documents seized by the officer of the searched entity to the officer of the third party, that is, petitioner in this case. 12. I am of the considered view that the proviso has no application in the construction of the block period. Section 153C deals with the assessment of income of any other person in relation to the searched person and Section 153C(1) reads as under: Assessment of income of any other person. 153C. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that,- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, the books of account or documents or asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly accordingly as if such return were a return required to be furnished under section 139; (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 : 15. Thus, the block is to comprise of the those assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. Seen in this context, the inclusion of assessment year 2010-11 and 2011-12 in the case of RKM Powergen Limited and 2010-11 in the case of RK Powergen Private Limited is seen to be in order. 16. The first proviso to Section 153C only deals with the date of initiation of search for the purpose of the second proviso to Section 153A(1) to determine the abatement for the sake of completion. The second proviso to Section 153A is also extracted hereunder: 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 refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt of assets and documents by the AO of the Assessee (other than one searched) as the date of the search on the Assessee. The rationale appears to be that whereas in the case of a searched person the AO of the searched person assumes possession of seized assets/documents on search of the Assessee; the seized assets/documents belonging to a person other than a searched person come into possession of the AO of that person only after the AO of the searched person is satisfied that the assets/documents do not belong to the searched person. Thus, the date on which the AO of the person other than the one searched assumes the possession of the seized assets would be the relevant date for applying the provisions of Section 153A of the Act. We, therefore, accept the contention that in any view of the matter, assessment for AY 2003-04 and AY 2004-05 were outside the scope of Section 153C of the Act and the AO had no jurisdiction to make an assessment of the Assessee's income for that year. 18. The aforesaid decision has been followed in the case of Sarwar Agency (P) Ltd. (supra) 19. This would lead to a position where two assessments may result, in the case of a search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and Uchpinda, Janjgir, Darak Taluk, Champa District, Chattisgarh Electronic Devices, Books Documents and Loose Sheets were seized vide inventory cited ANN/PKS/RKM/HD/S , ANN/ST/RKM/B D/1 , ANN/ST/RKM/LS/S 1 2 ANN/ST/RKM/LS/S/1-95 . The assessing officer of Shri V.R.Venkatachalam, being satisfied that the seized Electronic Devices, Books Documents and Loose Sheets belongs to M/s R.K.M.Powergen Private Limited, recorded his satisfaction and has forwarded the same. The seized Electronic Devices, Books Documents and Loose Sheets have been handed over. The satisfaction recorded by the AO of Shri. V.R.Venkatachalam states inter-alia that the office premises were being shared by M/s R.K.M.Powergen Private Limited and M/s R.K.Powergen Private Limited and the seized documents are composite in nature, with some belonging to M/s R.K.M.Powergen Private Limited and some to M/s R.K.Powergen Private Limited out of the sealed Bunches/Devices/Books/Electronic Devices. I am satisfied that the seized Electronic Devices, Books Documents and Loose Sheets have a bearing on the determination of the total income of M/s R.K.M.Powergen Private Limited for the A.Y. 2010-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parkash Bharti Group of cases, Karnal, Panipat Delhi and a survey Under Section 133A of the IT. Act, 1961 was also carried out at the business premises of M/s. Super Mall (P) Ltd. Karnal New Delhi. During the course of search on 08/09.04.2010 at residence of Sh. Ved Parkash Bharti who is a Director in the Assessee company M/s. Super Mall (P) Ltd., Pen drives were found and seized as per Annexure-3 from vehicle No. HR06N-0063 parked in front of the residence of Sh. Ved Parkash Bharti. Some documents as per Annexure A-1 were seized after taking print out of the above said pen drives. These documents contain the details of cash receipt on sale of shop/offices at M/s. Super Mall, Karnal also beside other concerns. These documents are required for assessment proceedings. During the statement of Sh. Ved Parkash Bharti at the time of search, he has also stated that these documents pertain to him and M/s. Super Mall (P) Ltd., Karnal in which he is Director. In view of the above and as per the provisions of Sub-section 91 of Section 153C of the Act, I am satisfied that the document seized from the residence of Sh. Ved Parkash Bharti belongs to a person i.e. Super Mall (P) Ltd., other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmity is made out in regard to the same. This argument is also rejected. 7. Challenge to the validity of the search: The petitioner has been seeking copies of panchanama as well as documents on the basis of which the impugned assessments have been made. Copies of panchanama have been supplied that indicate prima facie, certain defects therein. For instance, the first column in the Panchanama, column A, is to contain the name of the entity in whose case the warrant was issued. Column A contains the name of the entity as M/s.RK Power Gen Pvt. Limited . 8. However, it is an admitted position that no warrant has been issued in the name of RKM Power Gen Private Limited and it is upon the strength of the warrant under Section 132 in the name of Sri.VR.Venkatachalam and Ramachandra University Trust, that the impugned assessments have been framed. This error is seen to percolate through all four warrants issued, dated 24.11.2015, 09.12.2015 13.01.2016 in the case of RKM Power Gen Limited Chennai and 24.11.2015 in the case of RKM power Gen in its premises at Chattisgarh. 9. Mr.Srinivas argues that copies of panchanamas have, in fact, been received by the petitioner imm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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