Revp v. Principal Commissioner Of Income Tax – I, Raipur

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR REVP No. 4 of 2017 M/s Natural Ores Pvt. Ltd., Raipur, through its Director, Prem ChandAgrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.)Agrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.) ---- Petitioner Versus Principal Commissioner of Income Tax – I, Raipur ---- Respondent And REVP No. 5 of 2017 M/s Natural Ores Pvt. Ltd., Raipur, through its Director, Prem ChandAgrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.)Agrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.) ---- Petitioner Versus Principal Commissioner of Income Tax – I, Raipur ---- Respondent And REVP No. 6 of 2017 M/s Natural Ores Pvt. Ltd., Raipur, through its Director, Prem ChandAgrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.)Agrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.) ---- Petitioner Versus Principal Commissioner of Income Tax – I, Raipur ---- Respondent And REVP No. 7 of 2017 M/s P.C. Mining Pvt. Ltd. Raipur, Through Its Director, Prem ChandAgrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh Agrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh ---- Petitioner Versus Principal Commissioner Of Income Tax-I Raipur, Chhattisgarh ---- Respondent And REVP No. 8 of 2017 M/s Natural Ores Pvt. Ltd., Raipur, through its Director, Prem ChandAgrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.)Agrawal, S/o LS Dhanna Lal Agrawal, aged about 70 years, R/o M-52,Rajeev Nagar, Raipur (C.G.) ---- Petitioner Versus Principal Commissioner of Income Tax – I, Raipur ---- Respondent And REVP No. 9 of 2017 M/s P.C. Mining Pvt. Ltd. Raipur, Through Its Director, Prem ChandAgrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh Agrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh ---- Petitioner Versus Principal Commissioner Of Income Tax-I Raipur, Chhattisgarh ---- Respondent And REVP No. 10 of 2017 M/s P.C. Mining Pvt. Ltd. Raipur, Through Its Director, Prem ChandAgrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh Agrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh ---- Petitioner Versus Principal Commissioner Of Income Tax-I Raipur, Chhattisgarh ---- Respondent And REVP No. 11 of 2017 M/s P.C. Mining Pvt. Ltd. Raipur, Through Its Director, Prem ChandAgrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh Agrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh ---- Petitioner Versus Principal Commissioner Of Income Tax-I Raipur, Chhattisgarh ---- Respondent For Petitioners:Shri Arvind Shrivastava, AdvocateFor Respondent:Ms. Naushina Afrin Ali, Advocate Hon'ble Shri Deepak Gupta, Chief JusticeHon'ble Shri Justice Sanjay Agrawal Order on Board Per Deepak Gupta, Chief Justice 24.01.2017 1.Review has now been sought of the judgment passed by this Court And REVP No. 11 of 2017 M/s P.C. Mining Pvt. Ltd. Raipur, Through Its Director, Prem ChandAgrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh Agrawal S/o L S Dhanna Lal Agrawal, Aged About 70 Years, R/o M-52,Rajeev Nagar, Raipur, Chhattisgarh ---- Petitioner Versus Principal Commissioner Of Income Tax-I Raipur, Chhattisgarh ---- Respondent For Petitioners:Shri Arvind Shrivastava, AdvocateFor Respondent:Ms. Naushina Afrin Ali, Advocate Hon'ble Shri Deepak Gupta, Chief JusticeHon'ble Shri Justice Sanjay Agrawal Order on Board Per Deepak Gupta, Chief Justice 24.01.2017 1.Review has now been sought of the judgment passed by this Court dated 25.10.2016 only on the ground of limitation. Neither this pointwas taken up in the grounds of appeal nor raised before us when thematter was argued at the admission stage itself. It is more thanobvious that this an after thought on behalf of the Petitioners.However, we may point out that in another batch of cases being TaxCase No. 94 of 2016 and analogous cases, we have decided thequestion of limitation also in the following terms : “4. As is apparent from the judgment quoted above,this is a case of search. As far as present appeals areconcerned, some relate to assessment of persons whowere noticees and some relate to other persons who werenot noticees, in search proceedings. 5. Section 153B of the Income Tax Act deals withlimitation in cases relating to search carried out underSection 153A. The relevant portion of Section 153B ofthe Income Tax Act reads as follows : “153B. (1)Notwithstandinganythingcontained in section 153, the Assessing Officershall make an order of assessment orreassessment,- (a) in respect of each assessment yearfalling within six assessment years referred toin clause (b) of sub-section (1) of section153A, within a period of two years from theend of the financial year in which the last ofthe authorisations for search under section 132or for requisition under section 132A wasexecuted; (b) in respect of the assessment year relevantto the previous year in which search isconducted under section 132 or requisition ismade under section 132A, within a period oftwo years from the end of the financial year inwhich the last of the authorisations for searchunder section 132 or for requisition undersection 132A was executed : Provided that in case of other person referredto in section 153C, the period of limitation formaking the assessment or reassessment shallbe the period as referred to in clause (a) orclause (b) of this sub-section or one year fromthe end of the financial year in which books of account or documents or assets seized orrequisitioned are handed over under section153C to the Assessing Officer havingjurisdiction over such other person, whicheveris later: Provided further that in the case where the lastof the authorisations for search under section132 or for requisition under section 132A wasexecuted during the financial yearcommencing on or after the 1st day of April,2004 but before the 1st day of April, 2010,- (i) the provisions of clause (a) or clause (b) ofthis sub-section shall have effect as if for thewords "two years" the words "twenty-onemonths" had been substituted; the period of limitation for making theassessment or reassessment in case of otherperson referred to in section 153C, shall be theperiod of twenty-one months from the end ofthe financial year in which the last of theauthorisations for search under section 132 orfor requisition under section 132A wasexecuted or nine months from the end of thefinancial year in which books of account ordocuments or assets seized or requisitioned arehanded over under section 153C to theAssessing Officer having jurisdiction oversuch other person, whichever is later.” (i) the provisions of clause (a) or clause (b) ofthis sub-section shall have effect as if for thewords "two years" the words "twenty-onemonths" had been substituted; the period of limitation for making theassessment or reassessment in case of otherperson referred to in section 153C, shall be theperiod of twenty-one months from the end ofthe financial year in which the last of theauthorisations for search under section 132 orfor requisition under section 132A wasexecuted or nine months from the end of thefinancial year in which books of account ordocuments or assets seized or requisitioned arehanded over under section 153C to theAssessing Officer having jurisdiction oversuch other person, whichever is later.” The first part deals with the persons against whom searchhas been made and the assessment has to be completedwithin two years from the end of the assessment year inwhich the search was carried out. As far as other personsto whom notices were issued is concerned, theirassessment had to be completed within a period of 21months from the end of the assessment year in which thesearch was carried out. The search was carried out on4.2.2010. The assessment year ended on 31.3.2010 and 21months period expired on 31.12.2011. In the presentcases, the assessment were made on 30.12.2011 and it isnot disputed that these assessments were within time. 6.Thereafter, the Commissioner, Income Taxreopened the matter under Section 263 of the Income TaxAct invoking his revisionary powers. The order waspassed by the Commissioner, Income Tax on 28.3.2014.The submission of the Learned Counsel for the Appellant is that since by this time, the period for makingassessment is over therefore, no fresh assessment canactually be done because it is beyond the period oflimitation. 7.It may be pertinent to point out that Section153B or 153C of the Income Tax Act do not deal withlimitation in case the Commissioner exercises his suomotu powers under Section 263 of the Income Tax Act.The only provision in this regard is Section 153(2A),relevant portion of which reads as follows : “(2A) Notwithstanding anything contained insub- sections (1), (1A), (1B) and (2), inrelation to the assessment year commencing onthe 1st day of April, 1971, and any subsequentassessment year, an order of fresh assessmentin pursuance of an order under section 250 orsection 254 or section 263 or section 264,setting aside or cancelling an assessment, maybe made at any time before the expiry of oneyear from the end of the financial year inwhich the order under section 250 or section254 is received by the Principal ChiefCommissioner or Chief Commissioner orPrincipal Commissioner or Commissioner or,as the case may be, the order under section 263or section 264 is passed by the Principal ChiefCommissioner or Chief Commissioner orPrincipal Commissioner or Commissioner : Provided that where the order under section250 or section 254 is received by the PrincipalChief Commissioner or Chief Commissioneror Principal Commissioner or Commissioneror, as the case may be, the order under section263 or section 264 is passed by the PrincipalChief Commissioner or Chief Commissioneror Principal Commissioner or Commissioner,on or after the 1st day of April, 1999 butbefore the 1st day of April, 2000, such as orderof fresh assessment may be made at any timeup to the 31st day of March, 2002 :” 8.The contention of the learned counsel for theappellants is that Section 153(2A) only finds place inSection 153A and since 153B and 153C start with non-obstante clause, benefit of Section 2A cannot be availedof to extend the limitation in cases where theCommissioner exercises powers under Section 263 where the assessment is pursuant to search operations carried outin terms of Section 153A of the Income Tax Act. 8.The contention of the learned counsel for theappellants is that Section 153(2A) only finds place inSection 153A and since 153B and 153C start with non-obstante clause, benefit of Section 2A cannot be availedof to extend the limitation in cases where theCommissioner exercises powers under Section 263 where the assessment is pursuant to search operations carried outin terms of Section 153A of the Income Tax Act. 9.We are not at all in agreement with thesubmission of Learned Counsel for the Appellant. Non-obstinate clause of Section 153B and 153C of the IncomeTax deals mainly with the extending the period for whichthe Income Tax Act can carry out the assessment andreassessment under Section 147 of the Income Tax Act.Reassessment can only be done within a period of fouryears but where the search is carried out, reassessmentcan be done within a period of six years. 10.No doubt Sections 153B and 153C of the IncomeTax Act lay down different time limitations for makingthe assessment but these time limits are for making initialassessments by the Assessing Officer pursuant to thesearch and seizure operations. Once those assessments aremade if the powers under Section 263 of the Income TaxAct are invoked by the Commissioner then we will haveto fall back on the provisions of Section 153(2)A of theIncome Tax Act which provides that when theCommissioner invokes the powers under Section 263 ofthe Income Tax Act then the fresh assessment order interms of the Commissioner has to be passed within aperiod of one year from the date of communication of theorder. 11.It has been strenuously argued before us thatbecause there is non-obstinate clause for limitation givenin case of search and seizure i.e. 153B and 153C of theIncome Tax Act, the final limitation cannot be extended.We are not at all in agreement with this submission madeby Learned Counsel for the Appellant. If the argument ofLearned Counsel for the Appellant is accepted, it wouldvirtually amount to deleting Section 263 in cases ofreassessment on the basis of search and seizure. TheCommissioner would not be able exercise his suo motopowers under Section 263 of the Income Tax Act becauseby that time the period of limitation would be over. When an order is passed under Section 263 of the Income TaxAct it is a fresh order and limitation has to be reckonedfrom the date of that order. The Income Tax Act does notspecifically deal with Section 263 of the Income Tax Actin respect of search and seizure cases and rightly so.Revisionary powers can be exercised by theCommissioner in all cases where assessment is made andonce he exercises his revisionary powers then theprovisions of Section 153(2A) of the Income Tax Act willbe applicable and the limitation will be one year from thedate of the order being passed by the Commissioner inrevision petition. 12.In our considered view, limitation given inSection 153(2A) of the Income Tax Act will apply in allcases of fresh assessment made pursuant to orders passedunder Section 263 of the Income Tax Act. It is immaterialwhether the Commissioner has exercised his revisionaryjurisdiction in search or seizure cases or has merelyreopened old assessments.” 2.In view of the above, we find no merit in the review petitions. They are accordingly dismissed. Sd/- (Deepak Gupta)CHIEF JUSTICE Sd/- (Sanjay Agrawal) JUDGE