Kerala H.C : Where the due date for issue of notice under Section 143(2) had expired, as on the date of search, there could be no re-assessment made by virtue of the provisions under Section 153A; of such matters as available in the returns filed, which stands concluded by sheer efflux of time

High Court Of Kerala

CIT vs. K.P. Ummer, Prop. Star Rolling Mill

Section 132, 132A, 139, 143(2), 147, 149, 153(1), 153A, 153A(1), 153A(1)(a), 153A(2), 158, 260A

Asst. Year 2003-04 to 2004-05

K.Vinod Chandran & Ashok Menon, JJ.

ITA Nos. 174, 156, 171, 175, 178, 183, 188 of 2013

19th February, 2019

Counsel Appeared:

P.K.R. Menon, Sr. Counsel, GOI (Taxes), Jose Joseph, SC for Income Tax for the Petitioner.: Divya Ravindran, T.M. Sreedharan (Sr.), Boby M. Sekhar, V.P. Narayanan for the Respondent.


These appeals arise from the order of the Tribunal, which dealt with an assessment under Section 153A of the Income Tax Act, 1961(hereinafter referred to as ‘the Act’) for six plus one years, the last year being the year in which the search was conducted under Section 132. There were a number of issues arising before the Tribunal all of which except two, does not survive as of now, for reason of the revenue having not challenged certain issues before the Tribunal as also on the basis of the order passed giving effect to the order of the Tribunal. We would first look at the issues which do not survive for finalisation of the assessment for completeness.

2. One of the issues raised was on gifts received from friends for the assessment years 2003-04 to 2004-05. The Tribunal had remanded the matter to be considered by the As essing Officer. The learned counsel for the assessee submits that the said individual gifts were considered and those which were proved were allowed by the Assessing Officer and others were added back to the income.

The next question is with respect to the deficiency in cash flow statement. The assessee had indicated depreciation claimed on two vehicles as cash in-flow for the respective years from 2002-03 to 2008-09. The Assessing Officer refused to accept the same as a cash in-flow; rightly so. The Tribunal found that, though the cash flow statement cannot be accepted, since it is depreciation, the same can be allowed as a deduction by the Assessing Officer. The modified order indicates that the Assessing Officer has allowed the said amounts as deduction from income as permissible for depreciation. The one other issue arising is with respect to sale of trees carried out in the assessment year 2002-03 which survives and will be noticed a bit later.

Then there is the issue of expenditure incurred for foreign travel. The C.I.T. Appeals made some modifications, which was accepted by the Tribunal. The revenue having not challenged the issue before the Tribunal, it does not survive for consideration. Yet another issue is the addition made on account of difference in valuation of house property. There, the dispute raised was, whether the CPWD rates have to be applied or the Kerala PWD rates. The assessee had relied on some judgments of the jurisdictional High Court finding the rates applicable to be those in the Kerala PWD Rules. It is submitted by the learned counsel for the assessee that in the modified order, the judgments of this Court were produced and in accordance with that, the valuation reports as per the Kerala PWD rates were accepted. On the addition made on account of amount received from son, there was a remand made to the Assessing Officer. The assessee was not able to prove the source of such income and hence the same has been added back.

One another issue that has been settled by the Tribunal is, the estimation of business income. The assessee had adopted a method by which the undisclosed turnover was determined by reference to the power consumption for one metric tonne production. The Assessing Officer had also adopted a gross profit of 31.3% as disclosed from the books of the assessee for the subject year. The C.I.T. Appeals made some modification. The Tribunal found that there was no substantial evidence relied on to determine the production. Hence, the Tribunal found that the statement of the assessee that there was 8% suppression has to be accepted across the board for all the years. With respect to the gross profit, the Tribunal found that it has to be accepted in each year at the rate disclosed in the accounts of the assessee. The issue being on estimation, we would not interfere with it, in an appeal under Section 260A.

What survives is the addition on gifts or loans received from relatives for the assessment years 2002-03 and 2003-04 and that of sale of trees in one year.

The Tribunal found that Section 153A makes a classification in so far as ‘concluded assessments’ and ‘pending assessments’. When ‘pending assessments’ are stated to have been abated by the proviso, ‘concluded assessments’ are to be treated as concluded unless there is discovery of fresh materials for those years in the search conducted. The Tribunal’s finding was based on yet another decision of the Tribunal itself that, when returns have been filed in a prior year coming within the six years as provided under Section 153A, and there is no assessment made within the 21 month period, then necessarily those adjustments which could have been made by way of a proper assessment being conducted on the basis of the returns filed, cannot be taken up for fresh consideration, merely for reason of an assessment having been initiated under Section 153A. The Tribunal was of the opinion that such re-assessments with respect to concluded assessments has to be only on the basis of some incriminating material received on search, which can be related to the relevant previous years of such ‘concluded assessment’ years.

The question of law is, hence, reframed as follows:

Whether the Tribunal was correct in having found that in thos years prior to 2005-06, where the due date for issue of notice under Section 143(2) had expired, as on the date of search, there could be no re-assessment made by virtue of the provisions under Section 153A; of such matters as available in the returns filed, which stands concluded by sheer efflux of time?

9. The question is no longer res integra and is covered by two decisions of this Court reported in CIT v. St. Francis Clay Decor Tiles [2016] 385 ITR 624 (Ker)] and CIT v. Dr P Sasikumar [2016 (387) ITR 8(Ker)]. We extract paragraph 20 from St. Francis Clay Decor which has been relied on in the other decision also.

“20. On a plain reading of section 153A, it is clear that once search is initiated under section 132 or a requisition is made under section 132A after the 31st day of May 2003, the Assessing Officer is empowered to issue notice to such person requiring him to furnish return of income in respect of each assessment year following within six assessment years referred to in clause(b). It further treats the returns so filed as if such return were a return required to be furnished under section 139. So that on a reading of section 153A(1) it is categorical and clear that once a notice is issued and the Assessing Officer has required the assessee to furnish return for a period of six assessment years as contemplated under clause (b) then the assessee has to furnish all details with respect to each assessment year since the same is treated as a return filed under section 139. It is true that as per the first proviso, the Assessing Officer is bound to assess or reassess the total income with respect to each assessment year following the six assessment years specified in sub-clauses (a) and (b) of section 153A. However, even if no documents are unearthed or any statement made by the assessee during the course of search under section 132 and no materials are received for the afore specified period of six years, the assessee is bound to file a return, is the scheme of the provision. Even though the second proviso to section 153A speaks of abatement of assessment or reassessment pending on the date of the initiation of search within the period of six assessment years specified under the provision that will also not absolve the assessee from his liability to submit returns as provided under section 153A(1)(a). This being the scheme of the provisions of the Act, the Appellate Tribunal ought to have considered the issue with specific reference to the facts involved in the case and as provided under section 153A.”

10. Hence, when a notice under Section 153A is issued, it enables the department to carry out re-assessment or assessment with respect to the six immediate prior years and the year in which the search is carried out. This does not require any incriminating material recovered on search relating to those prior years; in which there is no time left, on the date of search, for an assessment under Section 143. The provision under Section 153A is a non obstante clause having overriding effect over Sections 139, 147, 158, 149, 151 and 153. The intention of the legislature is to enable assessment, if it has not been regularly done in any of the previous years, or to re-initiate assessment in case there is already proceedings pending or to re-assess in the case of completed assessments; if the search under Section 132 reveals material pointing to a practice of suppression of income from taxation. These materials need not necessarily be that relevant to the previous six years since a practice of suppression detected in the subject year permits a like presumption to be drawn in the earlier six years too; on best judgment with reference to the business or profession carried on by the assessee. We have also held in Commissioner of Income Tax v. Orma Marble Palace P(Ltd) [ITA 19 of 2011] that a dishonest assessee would not keep evidence of his dishonesty to be discovered after a long time or even a short time. Hence there is no assumption possible that in any of the prior years in which assessments were not regularly completed and the time for the same has expired, there could be additions only on the basis of materials recovered relevant to those years. The returns filed in pursuance to a notice under Section 153A is also to be treated as a return filed under Section

139. Hence, we cannot agree with the Tribunal that the assessments carried out under Section 153A for the prior years in which the due date for notice under Section 143(2) has expired, can only be with reference to incriminating materials recovered on search.

11. We also notice that the Tribunal has made a distinction in so far as the assessment years based on the limitation for assessment. The Tribunal categorised them as ‘concluded assessments’ and ‘abated assessments’. This is based on the second proviso and sub-section (2) of Section 153A. We extract hereunder the second proviso to Section 153A and sub-section (2).

“153A. Assessment in case of search or requisition

(1) xxx xxx xxx

Provided further that assessment or reassessm nt, if any, relating to any assessment year falling within the period of six assessment years referred to in this [sub-se tion] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate:

xxx xxx xxx

(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the [Principal Commissioner or] Commissioner:

We do not think that the intention in providing for abatement of pending proceedings and the revival of the same, if the proceedings under 153A(1) are eventually set aside; was to provide for a separate procedure for the years in which the notice period under Section 143(2) has expired. In fact, the second proviso is intended at keeping in abeyance any pending proceeding for assessment in a particular year; in which there is a proceeding initiated under Section 153A, pursuant to a search under Section 132. Otherwise, there would be parallel proceedings continued for the same assessment year. Hence, when a notice is issued pursuant to a search under Section 132, for assessment under Section 153A, all pending proceedings with respect to a regularly initiated assessment or re-assessment would stand abated. For the said years, the proceedings under Section 153A would be continued and the assessments concluded on that basis. However, when and if the said assessment proceeded with and concluded under Section 153A, is said aside by the statutory authorities or by this Court, then necessarily the original proceedings which stood abated would revive, which is the enabling provision under sub-section (2) of Section 153A. There can be no corollary inferred from the above provisions to find certain years to be of ‘concluded assessment’; being possible of re-assessment only on incriminating material recovered in search relatable to that year. Hence, we, on the above reasoning and respectfully following the cited decisions of another Division Bench of this Court, answer the question of law against the assessee and in favour of the revenue.

On facts we find the surviving issues in the year 2002-03 with respect to the gifts or loans received from relatives coming to Rs.13,18,500/-and the sale of trees amounting to Rs.75,000/-. With respect to 2003-04 the gift claimed by the assessee from relatives is Rs.10,000/-. The question of law arise only in the said years, which we answer in favour of the Revenue and against the assessee. ITA Nos.156 & 175 of 2013 are allowed, restoring the order of the Assessing Officer, confirming the additions on issues as specified herein above. With respect to the other appeals, we find that no question of law arises from the order of the Tribunal since the issues are already dealt with by the Assessing Officer in the order giving effect to the order of the Tribunal.

We, hence reject the said appeals, leaving the parties to suffer their respective costs.

[Citation : 413 ITR 251]

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