Ita/169/2015 Of The Commissioner Of Income Tax v. M/S. St.francis Clay Decor Tiles

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 ITA.No. 169 of 2015 () -----------------------(ITA.NO. 588/COCH/2013 OF INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH)----------------------- APPELLANT/APPELLANT/RESPONDENT/REVENUE :------------------------------------------------------------------------------ THE COMMISSIONER OF INCOME TAX, TRICHUR. BY ADVS.SRI.P.K.R.MENON,SENIOR SC SRI.JOSE JOSEPH, SC RESPONDENT/RESPONDENT/APPELLANT/ASSESSEE : ------------------------------------------------------------------------------------ M/S. ST. FRANCIS CLAY DECOR TILES, THEKKEMURI.P.O., CHERUVALOOR, KORATTY, THRISSUR-680 321 BY SRI.JOSEPH KODIANTHARA,SENIOR ADVOCATE ADVS. SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN SRI.S.JAYAKUMAR SMT.MARIAN G.M.THARAKAN THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 22-03-2016, ALONG WITH ITA.NO. 103/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts ITA.NO.169/2015 APPENDIX PETITIONER'S ANNEXURES: RESPONDENT'S ANNEXURES:NIL /TRUE COPY/ P.A.TO JUDGE ANTONY DOMINIC & SHAJI P. CHALY, JJ. ----------------------------------------------- I.T.A. Nos. 169, 223,194, 141,171, 216, 110, 103,150, 134, 222, 211, 240, 210, 148, 234, 193, 104,239, 139 and 157 of 2015 ----------------------------------------------- Dated this the 22[nd] day of March, 2016. JUDGMENT Shaji P. Chaly, J. The captioned appeals are filed by the Revenuechallenging Annexure F order of the Income Tax AppellateTribunal, Cochin Bench dated 10.10.2014. By a commonorder, 84 connected appeals filed by the Revenue weredismissed by the Tribunal and it is accordingly thecaptioned appeals along with other appeals were filed bythe Revenue before this court. 2. In all the 84 appeals, one question was common and in the above 21 appeals, out of the 84 appeals, apart fromthe common question involved, yet another question of lawwas involved. While arguing the common question involvedin all the 84 appeals, ITA No.84/2015 was taken as the main case and only the common question involved in the 84appeals alone was considered and judgement was renderedanswering the question against the Revenue and thusdismissing all appeals. 3. The second common question in 21 cases due toinadvertence was not brought to our notice and therefore,the said question could not be considered by us and in suchcircumstances Revenue filed review petitions in the aboveappeals, the review petitions were allowed and it is thus theabove 21 appeals are coming before us to consider thecommon question involved therein. The common questionraised in the above appeals are enumerated as follows: "1.(a) Whether on the facts and in thecircumstances of the case, is not the Tribunalerroneous in holding that addition in pursuanceto notice issued under Section 153A can bemade only if incriminating material is foundand seized in case where there is alsoabatement of regular assessment proceedings,and are not, such an approach and theresultant conclusion perverse and uncalledfor ? (b) Whether on the facts and in thecircumstances of the case and when theAssessing Officer is empowered to assess andreassess income for six prior period assessmentyears notwithstanding the provisions insections 139, 147, 148, 149, 151 and 153 is notthe above approach of the Tribunal one puttingan artificial cap on section 153A ?” 4. The facts required for the disposal of the aboveappeals are common in nature and they are as follows: (b) Whether on the facts and in thecircumstances of the case and when theAssessing Officer is empowered to assess andreassess income for six prior period assessmentyears notwithstanding the provisions insections 139, 147, 148, 149, 151 and 153 is notthe above approach of the Tribunal one puttingan artificial cap on section 153A ?” 4. The facts required for the disposal of the aboveappeals are common in nature and they are as follows: 5. The parties are hereinafter referred to as Revenueand assessee for convenience. The assesses are partnershipfirms which are carrying on Chit business and moneylending business by way of gold loans and pro-note loans.Head office of the firms is at Palayamparambu with threebranches at Chalakudy, Annamanada and Mala. The firmsare belonging to E.T. Devassy Group. A search underSection 132 was conducted on 26.3.2008 at the premises of some of the firms and residence of Partners.A search under Section 132 was also conducted at thebusiness premises of M/s.New Kerala Investments, Palayamparambu.P.O., Thrissur. Consequent to search theAssessing Officer issued notice under Section 153A of theIncome Tax Act for A.Ys. 2002 - 2003 to 2007-2008 andissued notice under Section 142(1) for A.Y. 2008-2009. Theassessees filed returns of income and the Assessing Officercompleted assessment under Section 153A vide order dated29.12.2009 in respect of A.Ys. 2002-2003 to 2007-2008 andunder Section 143(3) in respect of A.Y.2008-2009. Theassessees have raised a legal issue before the Commissionerof Income Tax (Appeals) that the assessment under Section153A for A.Ys.2002-2003 to 2006-2007 are to be made onlyon the basis of incriminating materials found/seized duringthe course of search. The CIT(Appeals) by its order dated4.6.2013, held in favour of the assessee on this issue byfollowing the decisions of the Special Bench of the Tribunalin the case of All Cargo Logistics Ltd [137 ITD 287 (Mum)(Single Bench)] and in the case of DCIT v. MathaEnterprises (ITA 269 to 275/COCH/2010). 6. Aggrieved by the order of the CIT (Appeals),Revenue preferred appeals before the Income Tax AppellateTribunal but however, the Tribunal did not find anyinfirmity in the order passed by the CIT(Appeals) andaccordingly the grounds raised by the Revenue regardingthe same were rejected. It is thus challenging Annexure Fcommon order of the Income Tax Appellate Tribunal, theabove appeals are preferred. 7. Heard learned Senior Counsel for the Revenue andlearned Senior Counsel appearing for the assessee. 8. The main contention advanced by the learnedSenior Counsel for the Revenue is that, the Tribunal erredin holding that the addition in pursuance to notice issuedunder Section 153A can be made only if incriminatingmaterial is found and seized in case where there is alsoabatement of regular assessment proceedings. That apart itis contended that such a restriction to Section 153A is 7. Heard learned Senior Counsel for the Revenue andlearned Senior Counsel appearing for the assessee. 8. The main contention advanced by the learnedSenior Counsel for the Revenue is that, the Tribunal erredin holding that the addition in pursuance to notice issuedunder Section 153A can be made only if incriminatingmaterial is found and seized in case where there is alsoabatement of regular assessment proceedings. That apart itis contended that such a restriction to Section 153A is artificial in nature since the Assessing Officer under law isvested with power to assess or re-assess income for sixprior period assessment years notwithstanding theprovisions of Sections 139, 147, 148, 149, 151 and 153.Learned Senior Counsel also contended that the view takenby the ITAT is against the settled principles ofinterpretation of statutes and hence perverse. Therefore,learned Senior Counsel contended that the findingsrendered by the Appellate Tribunal with respect to thescope of Section 153A cannot be sustained under law.Learned counsel has also invited our attention to Section153A of the Income Tax Act and contended that the word“incriminating” is not used anywhere in the said provisionand therefore by incorporating such a provision theTribunal was expanding the scope of the said provision. Itis also contended by the learned Senior Counsel thatSection 153A can be invoked by the Assessing Officer if andwhen the search is initiated under Section 132 or books of account, other documents or any assets are requisitionedunder Section 132A. In that event, learned Senior Counselcontends that the Assessing Officer is vested with powers toissue notice to such person requiring him to furnish withinsuch period as may be specified in the notice, the return ofincome in respect of each assessment year falling within sixassessment years referred to in Clause (b), in theprescribed form and verified in the prescribed manner andsetting forth such other particulars as may be prescribedand the provisions of the Income Tax Act shall, so far asmay be, apply accordingly as if such return were a returnrequired to be furnished under section 139. 9. It is also contended that as per Section 153A(1)(b)when such a procedure is adopted by the Assessing Officer,the Assessing Officer can assess or re-assess the totalincome of six assessment years immediately preceding theassessment year relevant to the previous year in which suchsearch is conducted or requisition is made, that the proviso further provides that the Assessing Officer shall assess orre-assess the total income in respect of each assessmentyear falling within such six assessment years. That apart, itis contended that the second proviso to the said section saysthat assessment or re-assessment, if any, relating to anyassessment year falling within the period of six assessmentyears referred to in this sub-section pending on the date ofinitiation of the search under Section 132 or making ofrequisition under Section 132A, as the case may be, shallabate. Therefore, it is contended that whenever there is asearch, the Assessing Officer is bound under law to re-openthe assessment by resorting to Section 153A, and aftercomplying with the statutory requirement providedthereunder, the assessment shall be done by taking intoaccount the materials produced by the assessee, recoveredin search and all other materials that is received by theAssessing Officer in the proceedings under Section 132. Itis also contended by the learned Senior Counsel that the first proviso to Section 153A vests ample power with theAssessing Officer to assess or re-assess the total income inrespect of each assessment years falling within such sixassessment years. first proviso to Section 153A vests ample power with theAssessing Officer to assess or re-assess the total income inrespect of each assessment years falling within such sixassessment years. 10. It is therefore contended that the Tribunal wentwrong in holding that in order to proceed under Section153A incriminating materials should be recovered. LearnedSenior Counsel contends that such findings of the Tribunalcannot be sustained under law since under Section 153Anowhere it is stated that the materials recovered whileconducting search under Section 153A should beincriminating in nature. It is also contended that whatevermaterials unearthed during the search operations underSection 132 is sufficient to proceed under Section 153A ofthe Income Tax Act. That being the situation, the Tribunalwent wrong in holding that there are no incriminatingmaterials before the Assessing Officer to proceed againstthe assessee. It is also contended by the learned Senior Counsel for the Revenue that during the search operationsthe Managing Partner of the firms involved in the above 21appeals has conceded that an amount of Rs.2.75 Crores wasnot disclosed by him while submitting the returns. It is alsocontended by the learned Senior Counsel for the revenuethat in the remand report the Assessing Officer has statedthat there are documents unearthed in the form of day bookand ledger relating to assessment years 2006 - 2007 to2008 - 2009 and seized from the business premises of theassessee firms. It is further contended in that regard by theRevenue that since materials belonging to the assesseefirms were found and seized in the course of a search andseizure operation conducted under Section 132 of the ITAct, the Assessing Officer was bound to issue notices to theassessee firms to furnish return for each assessment yearfalling within the six assessment years immediatelypreceding the assessment year relating to the previous yearin which the search was made. Thus according to the Revenue, under the provisions of law notice under Section153A are to be issued for all the six assessment yearsirrespective of whether materials relating to all theseassessment years were found or seized during the course ofthe search. That apart it is contended by the Revenue thatunder the current scheme of search, the Assessing Officerwas empowered to assess or re-assess the total income ofall the six assessment years, notwithstanding that theincome tax assessments for certain years were concluded ason the date of search. Therefore, according to the Revenue,the objection of the assessee regarding initiation ofassessment proceedings for the assessment years 2002-2003 to 2005 - 2006 was not legally valid. 11. Learned Senior Counsel for the Revenue has alsoinvited our attention to judgement of the Apex Court inSalemCo-operativeCentralBankLtd.v.Commissioner of Income-Tax [(1993) 201 ITR 697] tocanvass the proposition that if and when there is any error 11. Learned Senior Counsel for the Revenue has alsoinvited our attention to judgement of the Apex Court inSalemCo-operativeCentralBankLtd.v.Commissioner of Income-Tax [(1993) 201 ITR 697] tocanvass the proposition that if and when there is any error which is manifested in the contention of both sides beforethe Tribunal this court has jurisdiction to correct the errorin the order of the Tribunal so long as the point arose out ofits order, whoever be the author of the mistake or error intaking up a particular contention. With the above saidproposition learned counsel has contended that merelybecause the Assessing Officer has submitted certainincorrect facts before the 1[st] Appellate Authority, that willnot in any manner affect the case of the Revenue and sucherrors are liable to be corrected by the Tribunal. So alsolearned Senior Counsel invited our attention to thejudgement of the Apex Court in Income Tax Officer,Special Investigation Cirlcle "B", Meerut v. SethBrothers and others [(1969) 74 ITR 836] to contend thatas per Section 132 of the Income Tax Act, the warrant ofauthorisation do not require to specify the particulars ofdocuments and books of accounts but it contemplates onlythe general authorisation to search for and seize documents and books of account relevant to or useful for anyproceeding to comply with the requirements of the Act andthe Rules, that it is for the officer making the search toexercise his judgement and seize or not seize anydocuments or books of account. An error committed by theofficer in seizing documents which may ultimately be foundnot to be useful for or relevant to the proceeding under theAct will not by itself vitiate the search, nor will it entitle theaggrieved person to an omnibus order releasing alldocuments seized. That apart it is also contended that anyirregularity in the course of entry, search and seizurecommitted by an officer acting in pursuance of theauthorisation will not be sufficient to vitiate the actiontaken, provided the officer has, in executing theauthorisation, acted bonafide. Learned Senior Counsel alsoinvited our attention to the judgement of this court in V.Kunhambu and sons v. Commissioner of Income-Tax[(1996) 219 ITR 235] to explain the nature of Section 132(4) of the Act wherein it is provided that the authorised officermay, during the course of search or seizure, examine onoath any person who is found to be in possession or controlof any books of account, documents, money, bullion,jewellery or other valuable article or thing and anystatement made by such person during such examinationmay thereafter be used in evidence in any proceeding underthe Indian Income Tax Act, 1922 (11 of 1922), or under thisAct. Further the explanation contained thereunder readsthus: "Explanation.- For the removal of doubts, it ishereby declared that the examination of anyperson under this sub-section may be not merelyin respect of any books of account, otherdocuments or assets found as a result of thesearch, but also in respect of all matters relevantfor the purposes of any investigation connectedwith any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.” 12. So also our attention was invited to the judgement of a Division Bench of this court in Commissioner of Income-Tax v. Hotel Meriya reported in [(2011) 332 ITR537] with respect to the validity of the search operationscontained under Section 132 vis-a-vis Section 158BB of theIncome Tax Act. In the said judgement it was held that thestatement made by a partner of a firm is evidence ascontemplated under Section 3 of the Evidence Act andtherefore, such evidence is a valid material to proceedunder Section 158BB of the Income Tax Act. 12. So also our attention was invited to the judgement of a Division Bench of this court in Commissioner of Income-Tax v. Hotel Meriya reported in [(2011) 332 ITR537] with respect to the validity of the search operationscontained under Section 132 vis-a-vis Section 158BB of theIncome Tax Act. In the said judgement it was held that thestatement made by a partner of a firm is evidence ascontemplated under Section 3 of the Evidence Act andtherefore, such evidence is a valid material to proceedunder Section 158BB of the Income Tax Act. 13. Therefore, learned Senior Counsel contends that ifand when a search is conducted as provided under Section132 of the Act, the Assessing Officer is bound to initiateaction under Section 153A and proceed in terms of the saidprovision. The thrust of the contention made by the learnedSenior Counsel is that, when under a search any material asprovided under Section 132 is unearthed or statement of aresponsible person is taken out by the Assessing Officer,that by itself is a material to proceed under Section 153A.Therefore, the Senior Counsel contends that there is no provision at all either under Section 132 or under Section153A, that in order to proceed under Section 153A anincriminating material shall be unearthed. Thus it iscontended by the counsel that the finding of the Tribunalthat there are no incriminating materials before it so as tojustify the action of the Assessing Officer is not a legal andvalid finding and thus he seeks interference of this court inthese appeals. 14. On the other hand learned Senior Counsel for theassessee contended that in order to assess under Section153A of the Act, the materials that are unearthed can alonebe applied against the relevant assessment years inquestion as contemplated under Section 153(1)(b) andtherefore, the Tribunal was right in holding that there wasno incriminating materials received during the searchoperations in order to proceed under Section 153A. It isalso contended that Section 153A can be invoked only ifmaterials are procured during the search operations under Section 132 and a mere statement made by the ManagingPartner, which was retracted by him at the appellate stage,cannot be taken into account to proceed with theassessment under Section 153A. In order to substantiatethe said contention, learned Senior Counsel has invited ourattention to the common judgement of the Bombay HighCourt in Commissioner of Income-Tax v. ContinentalWarehousing CorporationandAll Cargo GlobalLogistics Ltd. reported in [2015]374 ITR 645] and thejudgement of the Delhi High Court in Commissioner ofIncome Tax v. Kabul Chawla reported in [(2016) 380 ITR573 (Delhi)]. Learned Senior Counsel contended that inboth the judgements the respective courts were consideringthe question of incriminating materials unearthed duringthe search operations in order to invoke power underSection 153A vis-a-vis its application to pendingproceedings, its abatement and concluded proceedings. 15. The issue that was raised by the assessee before the 1[st] Appellate Authority as well as the Tribunal withregard to the initiation of proceedings under Section 153Awas that since the assessment for the years 2002 - 2003 to2005 -2006 were concluded as on the date of the search andno proceedings were pending, the scope of assessmentunder Section 153A for these assessment years wasrestricted to the incriminating materials relating to thoseyears recovered during the course of search. The assesseefurther contended that since no incriminating materialsrelating to these years were found or seized during thecourse of search the Assessing Officer had no jurisdiction toinitiate proceedings under Section 153A of the Act for theaforesaid years. 15. The issue that was raised by the assessee before the 1[st] Appellate Authority as well as the Tribunal withregard to the initiation of proceedings under Section 153Awas that since the assessment for the years 2002 - 2003 to2005 -2006 were concluded as on the date of the search andno proceedings were pending, the scope of assessmentunder Section 153A for these assessment years wasrestricted to the incriminating materials relating to thoseyears recovered during the course of search. The assesseefurther contended that since no incriminating materialsrelating to these years were found or seized during thecourse of search the Assessing Officer had no jurisdiction toinitiate proceedings under Section 153A of the Act for theaforesaid years. 16. However, the learned Senior Counsel for theassessee contended that the scope of assessment underSection 153A of the Act was settled by the Special Benchdecision of the ITAT in the case of All Cargo Logistics Ltd(supra). Thus according to the learned Senior Counsel for the assessee,the assessment proceedings which are alreadyterminated are not liable for abatement and only pendingassessments as on the date of search shall abate.Therefore, taking into account such circumstances, SeniorCounsel contended that, so far as the assessment withrespect to A.Ys. 2002 - 2003 to 2005 - 2006, theassessments are completed as on the date of search and thesame can be re-opened only on the basis of specificincriminating documents/transactions/seized assets. It isalso contended that as per the scheme of Section 153A suchassessments which are pending as on the date of search areliable to abate and the assessments which are not pendingi.e. completed assessments as on the date of search wouldhold their base and would not abate. It is also contendedby the learned Senior Counsel for the assessee that thescope of assessment under Section 153A in the case ofassessment that are abated and in the case of assessmentsthat have attained finality as on the date of search, which has been settled by the decision of the Special Bench of theTribunal referred supra wherein it is held that in caseassessment has abated, the Assessing Officer retains theoriginal jurisdiction as well as jurisdiction under Section153A for which assessment shall be made for eachassessment separately. Thus according to the learnedSenior Counsel, in that circumstances, the Assessing Officercan make additions in the assessment, even if noincriminating material has been found. Therefore,according to the learned Senior Counsel, it thus meansthat, the assessment under Section 153A will be made onthe basis of incriminating material, which in the context ofrelevant provisions means books of account and otherdocuments found in the course of search but not producedin the course of original assessment and undisclosed incomeor property found during the course of search. Learnedcounsel also contended that going by the first proviso toSection 153A it is categoric and clear that an assessment under Section 153A can be made only on unearthedmaterials to the relevant assessment years. According tothe counsel, in such circumstances, the Tribunal was rightin dismissing the appeals on the said ground also. 17. After considering the rival submissions andappreciating and perusing the pleadings and documentsproduced by the Revenue and the written submissions madeby the learned counsel for the assessee, we find that theTribunal without taking any efforts to find out the facts andcircumstances involved in the cases on hand has relied onthe decision of the Special Bench of the ITAT in All CargoLogistics Ltd (supra) and has held that there was no needto interfere with the order passed by the Appellate Tribunal.In order to consider the issue, we think it is profitable toextract Section 132 (1) and clause (a) and sub-section (4). "132. Search and seizure 17. After considering the rival submissions andappreciating and perusing the pleadings and documentsproduced by the Revenue and the written submissions madeby the learned counsel for the assessee, we find that theTribunal without taking any efforts to find out the facts andcircumstances involved in the cases on hand has relied onthe decision of the Special Bench of the ITAT in All CargoLogistics Ltd (supra) and has held that there was no needto interfere with the order passed by the Appellate Tribunal.In order to consider the issue, we think it is profitable toextract Section 132 (1) and clause (a) and sub-section (4). "132. Search and seizure (1) Where the Director General or Director orthe Chief Commissioner or Commissioner orAdditional Director or Additional Commissioneror Joint Director or Joint Commissioner in consequence of information in his possession,has reason to believe that --- (a) any person to whom a summons undersub-section (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or undersub-section (1) of Section 131 of this Act, or anotice under sub-section (4) of section 22 of theIndian Income-tax Act, 1922 (11 of 1922), orunder sub-section (1) of section 142 of this Actwas issued to produce, or cause to be produced,any books of account or other documents hasomitted or failed to produce, or cause to beproduced, such books of account or otherdocuments as required by such summons ornotice, oretc. etc. Sub-section (4): The authorised officer may,during the course of the search or seizureexamine on oath any person who is found to bein possession or control of any books ofaccount, documents, money, bullion, jewelleryor other valuable article or thing and anystatement made by such person during suchexamination may thereafter be used in evidencein any proceeding under the Indian Income-taxAct, 1922 (11 of 1922), or under this Act." 18. On going through Section 132 of the Income Tax Act, what we find is that if the authority specified thereinhas reason to believe that any person to whom a summonsunder sub-section (1) of section 37 of the Indian Income-taxAct, 1922 (11 of 1922), or under sub-section (1) of section131 of the 1961 Act, or a notice under sub-section (4) ofsection 22 of the Indian Income-tax Act, 1922 (11 of 1922),or under sub-section (1) of section 142 of 1961 Act wasissued to produce, or cause to be produced, any books ofaccount or other documents has omitted or failed toproduce, or cause to be produced, such books of account orother documents as required by such summons or noticeetc. etc., can authorise the officers referred therein to enterand search any building etc. etc. Such authorised officerunder sub-section (4) of Section 132 may during the courseof search or seizure examine on oath any person who isfound to be in possession or control of any books of account,document, money, bullion, jewellery or other valuablearticle or thing and any statement made by such person during such examination may thereafter be used inevidence in any proceeding under the Indian Income-taxAct, 1922 or under the Act 1961. Therefore, going by thesaid provision not only the books, documents etc. etc. thatare unearthed during the course of search but a statementmade by such person during such examination can also beused in evidence in any proceeding under the Income TaxAct, 1961. Thus viewing the provision in such manner, it isan admitted fact that the Managing Partner of the firms inquestion has given a voluntary statement to the AssessingOfficer that there is a undisclosed income of Rs.2.75 Crores,which according to the learned counsel, was retracted bythe Managing Partner subsequently. Thus it can be seenthat even according to the assessee, there was a disclosuremade by giving a statement during the course of search andtherefore, the Assessing Officer, by virtue of the powerconferred on him under section 153A was competent toissue notice under the said provision and require the assessee firms to furnish the returns as providedthereunder. Neither under section 132 or under section153A, the phraseology “incriminating” is used by theParliament. Therefore, any material which was unearthedduring search operations or any statement made during thecourse of search by the assessee is a valuable piece ofevidence in order to invoke section 153A of the Income TaxAct, 1961. 19. In order to appreciate the provisions of Section153A in a proper manner, it is appropriate to extract thesaid provision, which reads thus: 153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 149, section151 and section 153, in the case of the personwhere a search is initiated under section 132 orbooks of account, other documents or any assetsare requisitioned under section 132A after the31[st] day of May, 2003, the Assessing Officershall-- (a) issue notice to such person requiring him to furnish within such period, as may bespecified in the notice, in return of income inrespect of each assessment year falling within sixassessment years referred to in clause (b), in theprescribed form and verified in the prescribedmanner and setting forth such other particularsas may be prescribed and the provisions of thisAct shall, so far as may be, apply accordingly as ifsuch return were a return required to befurnished under section 139; (b) assess or reassess the total income ofsix assessment years immediately preceding theassessment year relevant to the previous year inwhich such search is conducted or requisition ismade. Provided that the Assessing Officer shall assessor reassess the total income in respect of eachassessment year falling within such sixassessment years: Provided furtherthat assessment orreassessment, if any, relating to any assessmentyear falling within the period of six assessment years referred to in this sub-section pending onthe date of initiation of the search under section132 or making of requisition under section 132A,as the case may be, shall abate. Provided also that the Central Government mayby rules made by it and published in the OfficialGazette (except in cases where any assessment orreassessment has abated under the secondproviso), specify the class or classes of cases inwhich the Assessing Officer shall not be requiredto issue notice for assessing or reassessing thetotal income for six assessment yearsimmediately preceding the assessment yearrelevant to the previous year in which search isconducted or requisition is made. [(2)] If any proceeding initiated or any order ofassessment or reassessment made under sub-section (1) has been annulled in appeal or anyother legal proceeding, then, notwithstandinganything contained in sub-section (1) or section153, the assessment or reassessment relating toany assessment year which has abated under the [(2)] If any proceeding initiated or any order ofassessment or reassessment made under sub-section (1) has been annulled in appeal or anyother legal proceeding, then, notwithstandinganything contained in sub-section (1) or section153, the assessment or reassessment relating toany assessment year which has abated under the second proviso to sub-section (1), shall standrevived with effect from the date of receipt of theorder of such annulment by the Commissioner. Provided that such revival shall cease to haveeffect, if such order of annulment is set aside.Explanation.-- For the removal of doubts, it ishereby declared that.-- (i) save as otherwise provided in thissection, section 153B and section 153C, all otherprovisions of this Act shall apply to theassessment made under this section. (ii) in an assessment or reassessment madein respect of an assessment year under thissection, the tax shall be chargeable at the rate orrates as applicable to such assessment year." 20. On a plain reading of Section 153A, it is clear thatonce search is initiated under Section 132 or a requisition ismade under Section 132A after the 31[st] day of May 2003,the Assessing Officer is empowered to issue notice to suchperson requiring him to furnish return of income in respect of each assessment year following within six assessmentyears referred to in clause (b). It further treats the returnsso filed as if such return were a return required to befurnished under Section 139. So that on a reading ofSection 153A(1) it is categoric and clear that once a noticeis issued and the Assessing Officer has required theassessee to furnish return for a period of six assessmentyears as contemplated under clause (b) then the assesseehas to furnish all details with respect to each assessmentyear since the same is treated as a return filed undersection 139. It is true that as per the first proviso, theAssessing Officer is bound to assess or reassess the totalincome with respect to each assessment year following thesix assessment years specified in sub-clauses (a) and (b) ofSection 153A. However, even if no documents areunearthed or any statement made by the assessee duringthe course of search under section 132 and no materials arereceived for the aforespecified period of six years, the assessee is bound to file a return, is the scheme of theprovision. Even though the second proviso to Section 153Aspeaks of abatement of assessment or reassessmentpending on the date of the initiation of search within theperiod of six assessment years specified under the provisionthat will also not absolve the assessee from his liability tosubmit returns as provided under Section 153A(1)(a). Thisbeing the scheme of the provisions of the Act, the AppellateTribunal ought to have considered the issue with specificreference to the facts involved in the case and as providedunder Section 153A. 21. However, we find that the Tribunal withoutappreciating the facts and circumstances has proceededpurely on the basis that the cases at hand were coveredunder the Special Bench decision in All Cargo LogisticsLtd. (supra). In our view the course adopted by theTribunal was not the proper one to decide the question withregard to the sustainability of the order passed by the First Appellate Authority. Therefore, we are of the consideredopinion that the Tribunal has not adopted the right methodto decide the issue with regard to the question framed inthese appeals and therefore, it is only necessary to remandthe matter to the Tribunal for fresh consideration. 21. However, we find that the Tribunal withoutappreciating the facts and circumstances has proceededpurely on the basis that the cases at hand were coveredunder the Special Bench decision in All Cargo LogisticsLtd. (supra). In our view the course adopted by theTribunal was not the proper one to decide the question withregard to the sustainability of the order passed by the First Appellate Authority. Therefore, we are of the consideredopinion that the Tribunal has not adopted the right methodto decide the issue with regard to the question framed inthese appeals and therefore, it is only necessary to remandthe matter to the Tribunal for fresh consideration. 22. Therefore, we set aside the order passed by theTribunal in the above appeals and remand the cases to theTribunal to re-consider the question raised in these appealsby taking into account the principles laid down in thejudgement cited by the Revenue as well as the assessee orany other principles of law laid down by competent courtsof law and take a decision on merits in accordance with law.The question thus framed is answered in favour of revenueto the extent indicated above. However we make it clearthat the common question with regard to the power of theAppellate Authority with respect to receipt of evidence inappeal and its application, concluded by the Tribunal in 84cases and upheld by this court, will remain undisturbed. The appeals are disposed of accordingly. Sd/-ANTONY DOMINIC JUDGE Sd/- JUDGE SHAJI P. CHALY //true copy//P.A to Judge smv 11.3.2016