Sca/19323/2018 Of Amit Sajjankumar Kariwala v. Income Tax Officer,Circle 5(2)

C/SCA/12825/2018 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12825 of 2018With R/SPECIAL CIVIL APPLICATION NO. 12829 of 2018With R/SPECIAL CIVIL APPLICATION NO. 12832 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17489 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17490 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19074 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19078 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19079 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19083 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19214 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19215 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19216 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19221 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19222 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19223 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19674 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19675 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20108 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19116 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19119 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19121 of 2018With C/SCA/12825/2018 JUDGMENT R/SPECIAL CIVIL APPLICATION NO. 20128 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20129 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20143 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20145 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20146 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20149 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20151 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20152 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20154 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20604 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20629 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20632 of 2018With R/SPECIAL CIVIL APPLICATION NO. 12849 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18611 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19654 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19657 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19658 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19659 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19661 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19899 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19900 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19902 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18346 of 2018 C/SCA/12825/2018 JUDGMENT With R/SPECIAL CIVIL APPLICATION NO. 18362 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19869 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19239 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19868 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20236 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20246 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20442 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20530 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20537 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20539 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20610 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20081 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19841 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16419 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16421 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16425 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16426 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16427 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16782 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16786 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16800 of 2018With R/SPECIAL CIVIL APPLICATION NO. 16801 of 2018With C/SCA/12825/2018 JUDGMENT C/SCA/12825/2018 JUDGMENT R/SPECIAL CIVIL APPLICATION NO. 16821 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17771 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17788 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17789 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17790 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17791 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17793 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17796 of 2018With R/SPECIAL CIVIL APPLICATION NO. 17797 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18270 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18271 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18272 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18273 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18274 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18712 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18773 of 2018With R/SPECIAL CIVIL APPLICATION NO. 18777 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19232 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19234 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19236 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19321 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19323 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19325 of 2018 C/SCA/12825/2018 JUDGMENT With R/SPECIAL CIVIL APPLICATION NO. 19647 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19676 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19844 of 2018With R/SPECIAL CIVIL APPLICATION NO. 19871 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20221 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20228 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20241 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20244 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20245 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20272 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20276 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20825 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20828 of 2018With R/SPECIAL CIVIL APPLICATION NO. 20830 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR. JUSTICE BHARGAV D. KARIA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? C/SCA/12825/2018 JUDGMENT 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ================================================================ ANILUKMAR GOPIKISHAN AGRAWAL Versus ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 3(2) AHMEDABAD ================================================================ Appearance: Special Civil Applications No.12825, 12829, 12832, 17487,17489, 17490, 19074, 19078, 19079, 19083, 19214, 19215,19216, 19221, 19222, 19223, 19674, 19675 and 20108 of2018 : Mr. Hardik Vora, Advocate, for the petitionersMrs. Mauna M. Bhatt, Advocate for the respondent Mr. Sudhir Mehta, Advocate with Ms. Shailee Mehta, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.18346 of 2018 : Mr. S. N. Soparkar, Senior Advocate with Mr. B.S. Soparkar, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Applications No.19116, 19119, 19121, 20128,20129, 20143, 20145, 20146, 20149, 20151, 20152, 20154,20604, 20629 and 20632 of 2018: Mr. Tushar Hemani, Advocate with Ms. Vaibhavi Parikh, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Applications No.18362 of 2018 and No.19869 of2018: Mr. Hardik Vora, Advocate, for the petitionersMrs. Mauna M. Bhatt, Advocate for the respondent Mr. Sudhir Mehta, Advocate with Ms. Shailee Mehta, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.18346 of 2018 : Mr. S. N. Soparkar, Senior Advocate with Mr. B.S. Soparkar, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Applications No.19116, 19119, 19121, 20128,20129, 20143, 20145, 20146, 20149, 20151, 20152, 20154,20604, 20629 and 20632 of 2018: Mr. Tushar Hemani, Advocate with Ms. Vaibhavi Parikh, Advocate for the petitioners Mrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Applications No.18362 of 2018 and No.19869 of2018: Mr. B. S. Soparkar, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.20081 of 2018: Mr. M.J. Shah, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.19239 of 2018: Mr. Mihir Joshi, Senior Advocate with Mr. Darshan Gandhi, learned advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Applications No.12849, 18611, 19654, 19657,19658, 19659, 19661, 19899, 19900 and 19902 of 2018: Mr. Ketan Shah, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.20610 of 2018: Mr. S. N. Divatia, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.19841 of 2018: Mr. Darshan Patel, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent Special Civil Application No.19868 of 2018: Mr. Ankit Talsania, Advocate for the petitionerMrs. Mauna M. Bhatt, Advocate for the respondent ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANIand HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 02/04/2019 COMMON ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1.In all these petitions under article 226 of the Constitution of India, notices under section 153C of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) issued by the respondent-Assessing Officer to the respective petitioners are subject matter of challenge. In a few cases, pursuant to the impugned notices assessment orders have been passed. Though such assessment orders were passed prior to the filing of the writ petitions, it appears that the same were not communicated to the petitioners at the relevant point of time and hence, the petitioners were not aware of the same at the time of filing the respective petitions. Nonetheless, since the questions of law involved in all the petitions whether at the stage of notice under section 153C of the Act or at the stage of assessment orders are common, the court had taken up the petitions for hearing together and has decided them by this common judgment. 2.Since the facts and contentions in all the petitions are more or less common, for the sake of convenience, in case of H N Safal Group, reference is made to the facts as referred to in Special Civil Application No.12825 of 2018. 2.1The petitioner therein, and individual, had filed his return of income for assessment year 2012-13 on 11.9.2012 declaring total income of Rs.44,73,820/- as business income of M/s Gujarat Foundries (Partnership Firm) and other income. A search came to be conducted on various premises of H N Safal Group on 4.9.2013, wherein a panchnama came to be prepared on 7.9.2013. On the basis of the seized material, the Assessing Officer initiated proceedings against the petitioner under section 153C of the Act by issuing a notice dated 8.2.2018. 2.Since the facts and contentions in all the petitions are more or less common, for the sake of convenience, in case of H N Safal Group, reference is made to the facts as referred to in Special Civil Application No.12825 of 2018. 2.1The petitioner therein, and individual, had filed his return of income for assessment year 2012-13 on 11.9.2012 declaring total income of Rs.44,73,820/- as business income of M/s Gujarat Foundries (Partnership Firm) and other income. A search came to be conducted on various premises of H N Safal Group on 4.9.2013, wherein a panchnama came to be prepared on 7.9.2013. On the basis of the seized material, the Assessing Officer initiated proceedings against the petitioner under section 153C of the Act by issuing a notice dated 8.2.2018. 2.2In response thereto, the petitioner filed his reply dated 1.5.2018 and submitted his return of income. Vide letter dated 14.5.2018, the Assessing Officer furnished the satisfaction note recorded by him and also attached therewith the satisfaction of the Assessing Officer of the searched person. From the satisfaction recorded, it was found that no document belonging to the petitioner was found during the course of search. However, a hard-disc was seized in excel sheet data of the computer of the searched person, wherein there was reference of the petitioner’s name. 2.3On receiving the details, the petitioner raised objections to the proceedings under section 153C of the Act with detailed submissions, inter alia, contending that on the basis of the excel sheet data of the computer of the searched person wherein there was only reference to the petitioner’s name, the Assessing Officer could not have initiated proceedings against the petitioner under section 153C of the Act inasmuch as the condition precedent for invoking section 153C of the Act as it stood on the date of the search, viz. that the Assessing Officer should be satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned “belongs or belong to” the person other than the searched person was not satisfied. It was further contended that for the purpose of initiating action under section 153C of the Act, independent satisfaction has to be recorded, by the Assessing Officer of the searched person as well as the Assessing Officer of the person other than the searched person; however, on a perusal of the satisfaction note recorded by the Assessing Officer of the petitioner, it is clear that he has merely reproduced the satisfaction of the Assessing Officer of the searched person and has not recorded the requisite satisfaction as contemplated under section 153C of the Act. 2.4By an order dated 23.7.2018, the Assessing Officer rejected the objections filed by the petitioner. Being aggrieved, the petitioner has approached this court by way of present petition challenging the impugned notice dated 8.2.2018 issued by the Assessing Officer under section 153C of the Act for assessment year 2012-13. 2A In case of Venus Group, reference is made to the facts as appearing in Special Civil Application No. 19647 of 2018. 2A.1 The petitioner, who is an individual and proprietor of M/s Ocean Valves Mfg. Co. filed his return of income for assessment year 2012-13 on 14.3.2013 declaring total income of Rs.7,27,700/-. A search came to be conducted on various premises of Shri Ashok Sundardas Vaswani, M/s Venus Infrastructure and Developers P. Ltd. on 13.3.2015. During the course of search various documents were seized in which information about transactions relating to the petitioner was found. The seized incriminating documents related to unaccounted cash transactions which were analysed and correlated with other seized documents. Among the cash transactions as recorded in the seized unaccounted cash book 2A.1 The petitioner, who is an individual and proprietor of M/s Ocean Valves Mfg. Co. filed his return of income for assessment year 2012-13 on 14.3.2013 declaring total income of Rs.7,27,700/-. A search came to be conducted on various premises of Shri Ashok Sundardas Vaswani, M/s Venus Infrastructure and Developers P. Ltd. on 13.3.2015. During the course of search various documents were seized in which information about transactions relating to the petitioner was found. The seized incriminating documents related to unaccounted cash transactions which were analysed and correlated with other seized documents. Among the cash transactions as recorded in the seized unaccounted cash book which was found during the course of search, reference was also made to the petitioner. Based on such seized material, the Assessing Officer initiated proceedings under section 153C of the Act by issuing the impugned notices dated 22.3.2018 and 14.8.2018. Subsequently notices have been issued to the petitioner under section 142(1) of the Act to which the petitioner has responded. 2A.2 By a letter dated 6.12.2018, the petitioner requested the respondent to furnish a copy of the satisfaction note so as to enable the petitioner to submit objections thereto. In response thereto, the Assessing Officer furnished a copy of the satisfaction note on 7.12.2018. Upon receipt of the satisfaction note, the petitioner filed objections to the proceedings under section 153C of the Act. By an order dated 11.12.2018, the respondent rejected the objections, which has given rise to the petition. 2BInsofar as the Barter Group of petitions is concerned, reference is made to the facts as appearing in Special Civil Application No. 20143 of 2018. 2B.1 The petitioner is a company incorporated under the Companies Act, 1956. The respondent issued the impugned notice dated 2.11.2018, under section 153C read with section 153A of the Act for assessment year 2009-10, wherein it is stated that a search action under section 132 of the Act was conducted in the case of accommodation entry provider group (Barter Group and Pradip Birewar Group) on 4.12.2014 during the course of which, certain incriminating documents were found and seized. The Assessing Officer of various persons enlisted in the notice under section 153C read with section 153A of the Act, handed over such seized documents to the respondent since the same allegedly pertained to the petitioner and a bearing on the determination of the total income of the petitioner for the year under consideration. The petitioner was called upon to furnish the return of income under section 153C read with section 153A(1)(a) of the Act. 2B.2The respondent provided a copy of the satisfaction note recorded by him for the year under consideration on 5.12.2018 along with a notice under section 142(1) of the Act. By a letter dated 7.12.2018, the petitioner raised objections against initiation of proceedings under section 153C of the Act for the year under consideration. By an order dated 10.12.2018, the respondent disposed of the objections raised by the petitioner and held that the case of the petitioner was fit for initiating proceedings under section 153C of the Act, which has given rise to the petition. 2B.2The respondent provided a copy of the satisfaction note recorded by him for the year under consideration on 5.12.2018 along with a notice under section 142(1) of the Act. By a letter dated 7.12.2018, the petitioner raised objections against initiation of proceedings under section 153C of the Act for the year under consideration. By an order dated 10.12.2018, the respondent disposed of the objections raised by the petitioner and held that the case of the petitioner was fit for initiating proceedings under section 153C of the Act, which has given rise to the petition. 3.In response to the averments made in the petitions, the respondents therein have filed affidavits-in-reply. Since the affidavit-in-reply filed in Special Civil Application No.19239 of 2018 is a more detailed one, reference is also made to the averments made in the said affidavit along with the averments made in the affidavit-in-reply filed in response of the averments made in Special Civil Application No. 12825 of 2018. In the said affidavits-in-reply, it is inter alia, contended that the petition is filed at a pre-mature stage, inasmuch as only the notice under section 153C of the Act has been issued. In the event, the petitioner is aggrieved by the re-assessment order that may be passed, the statutory remedy of appeal under the provisions of the Income Tax Act is available and that on this limited ground alone, the petition may not be entertained. 3.1In the affidavits-in-reply, it has also been contended that the Finance Act, 2015 amended section 153C of the Act with effect from 1.6.2015 and the language of the amended section 153C is clearer than the pre-amended section. It has also been submitted that the contention of the assessee that the seized material/document does not belong to the assessee is of no consequence because in view of the amended provisions of section 153C (1) with effect from 1.6.2015, even if the seized material pertains to or any information contained therein relates to a person other than the searched person, notice under section 153C can be issued. It is further contended that in this case search was initiated on 4.9.2013, but notice under section 153C was issued on 12.3.2018, that is, after the amendment and therefore, the amended provisions of section 153C of the Act would be applicable. 3.2Reference is made to the Explanatory Notes to the provisions of the Finance Act, 2015 (Circular No.19/2015). It is submitted that a perusal of the memorandum of the Finance Act, 2015, introducing the amendments makes it amply clear that the amendment was introduced in view of the disputes with the wording of the previous provisions. Therefore, it is evident that the amended provisions are not substantive but a clarification of the previous wordings of the provisions. Furthermore, even a dictionary meaning of the words pertains/belongs/ relates show that they are synonymous. 3.3It is further averred that the grounds raised by the assessee are not about taxability of “on money payments” in immovable property acquisition transactions but on the grounds of the procedure of taxation of such transactions in respect of other persons in searched cases. Through the amendment in section 153C(1) of the Act by the Finance Act, 2015, no new liability of the assessee has been created or scope of taxation has not been widened. “On money payments” in immovable property acquisition transactions have always been within the scope of charge of income tax. Thus, the amendment is merely procedural amendment. Every assessee has a vested right in substantive law but no such right exist in procedural law. It is accordingly, contended that the procedural amendment applicable by the legislature with effect from 1.6.2015 also covers notice under section 153C of the Act issued on 12.3.2018. 3.4It is further contended that while deciding an issue related to the provisions of section 158BD of the Act, the Supreme Court, in the case of Commissioner of Income-tax-III v. Calcutta Knitwears, Ludhiana, (2014) 43 taxmann.com 446 (SC), considered the first or basic principle of interpretation of a fiscal legislation in the light of various judicial pronouncements and held that: “It is the duty of the of the court while interpreting the machinery provisions of a taxing statute to give effect to its manifest purpose. Wherever the intention to impose liability is clear, the courts ought not to be hesitant in espousing a commonsense interpretation to the machinery provisions so that the charge does not fail. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same.” 3.5In the affidavit-in-reply reliance has also been placed upon the decision of the Delhi High Court in PCIT v. Super Malls P. Ltd., (2016) 76 taxmann.com 267 (Delhi), wherein the contention of the assessee on the basis of the amendment by the Finance Act, 2015 has not been accepted, and it is held thus: “Plainly put, the Assessing Officer was satisfied that the documents belonged to the assessee in view of what was contained or brought out on a fair reading of their contents. It must not be overlooked that while construing a document, expressions should not be interpreted too literally as if they are, words, carved in stone or in a statute – as the ITAT did in this case. For these reasons, the ITAT should not have allowed the appeal only on hyper technical ground raised by the assessee with regard to the satisfaction note.” 3.6Reliance has also been placed upon paragraph 22 of the decision of this court in Kamleshbhai Dharamshibhai Patel, (2013) 214 Taxmann 588 (Guj), wherein it has been held thus: “Term “belong” is not defined and does not have legally technical connotation and therefore, we once again fall back on the dictionary meaning of the same. We need to ascertain if such document can be stated to “have relation or reference to” to the petitioners.” It is averred that therefore, after the procedural amendment in section 153C (1) of the Act, such “on money payments”, where these payments are found recorded in impounded material from several persons covered under section 153A, are required to be assessed under section 153C of the Act when notice is issued after the date of the amendment, that is, 1.6.2015 without any ambiguity. 3.7It is further averred that on a perusal of the details mentioned in the satisfaction note of the Assessing Officer, it is clear that the Assessing Officer has gone through the available material carefully and recorded reasons after due application of mind. In these satisfaction notes, cogent reasons have been recorded after detailed discussion on the seized documents for invoking provisions of section 153C of the Act in respect of the assessee. 3.8Reliance has been placed upon the decision of the Supreme Court inCommissioner of Income-tax v. Vijaybhai N. Chandrani, (2013) 35 taxmann.com 580 (SC), to contend that the writ petitions against notices issued under section 153C of the Act are not maintainable. 4.In this batch of petitions, there are in all three different groups relating to different searches. In one group of petitions, the search had been carried out in the case of HN Safal Group; in another group, the search had been carried out at the premises of Barter Group; and in the third group, the search had been carried out at the premises of Venus Group. In almost all the cases, pursuant to the notice issued under section 153C of the Act, the concerned petitioner has filed 3.8Reliance has been placed upon the decision of the Supreme Court inCommissioner of Income-tax v. Vijaybhai N. Chandrani, (2013) 35 taxmann.com 580 (SC), to contend that the writ petitions against notices issued under section 153C of the Act are not maintainable. 4.In this batch of petitions, there are in all three different groups relating to different searches. In one group of petitions, the search had been carried out in the case of HN Safal Group; in another group, the search had been carried out at the premises of Barter Group; and in the third group, the search had been carried out at the premises of Venus Group. In almost all the cases, pursuant to the notice issued under section 153C of the Act, the concerned petitioner has filed return of income and has requested the Assessing Officer to furnish the satisfaction note and upon receipt thereof, has raised objections thereto. It is after such objections came to be rejected, that these petitions had been filed challenging the notice under section 153C of the Act on the ground that the notices lack jurisdiction. In one or two cases, the Assessing Officer has not decided the objections. However, the facts and contentions raised in all the petitions are more or less similar, and to the extent there is any notable distinction in the facts of any other case, reference shall be made to the same at an appropriate stage of this judgment. SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS 5.Mr. Hardik Vora, learned advocate for the petitioners in Special Civil Applications No.12825, 12829, 12832, 17487, 17489, 17490, 19074, 19078, 19079, 19083, 19214, 19215, 19216, 19221, 19222, 19223, 19674, 19675 and 20108 of 2018, submitted that the entire issue is based on the hard-disc found during the course of search, whereas there is no allegation that the hard-disc belonged to the assessee. It was submitted that in the present case, the search came to be carried out on the premises of HN Safal group on 4.9.2013, at which point of time, the amendment dated 1.6.2015 was not in force. Therefore, at the relevant time, the Assessing Officer of the searched person could have recorded limited satisfaction to the effect that the books of account or documents seized or requisitioned assets belong to or belongs to the petitioner. It was submitted that admittedly, the hard-disc found during the course of search on the basis of which the notice has been issued under section 153C of the Act to the petitioner, does not belong to the petitioner. Referring to the satisfaction note recorded by the Assessing Officer of the searched person, it was pointed out that such satisfaction is based on the ground that the documents found and seized from the premises of HN Safal group pertain to or the information contained therein, relates to the petitioner. It was submitted that therefore, the Assessing Officer has recorded satisfaction in terms of the amended provision of section 153C of the Act, which came into force on 1.6.2015. According to the learned advocate. the amendment dated 1.6.2015 confers a new power on the Assessing Officer and is, therefore, prospective in effect and hence, could not have been made applicable in the facts of the present case when the amendment was not in force as on the date of the search. 5.1In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of State of Tamil Nadu v. Star Tobacco Co., (1974) 3 SCC 249, wherein the court held thus: 5.1In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of State of Tamil Nadu v. Star Tobacco Co., (1974) 3 SCC 249, wherein the court held thus: “5. The question for decision is whether the jurisdiction to reopen is a question of procedure or power. Mr Ram Ready contended that it relates only to procedure and on that basis sought to seek support from the decision of this Court in State of Madras v. Lateef Hamid and Co., 28 STC 690. We are unable to accept this contention. In Hamid case this Court was dealing with an alleged infraction of a provision dealing with procedure. Herein we are dealing with a question of power. The question for decision is as to who had the concerned jurisdiction to reopen the assessments. Such a question cannot be considered as a question of procedure. Under the old Rules the assessee had a right to have his assessments reopened only by the Appellate Authority. This was undoubtedly a right conferred on the assessee. It is a valuable right. That being so, the same is protected by the proviso quoted above.” 5.2Reference was made to the decision of the Supreme Court in the case of CED v. M.A. Merchant, 1989 Supp (1) SCC 499, wherein the court held thus: “6. The Estate Duty (Amendment) Act, 1958 effected a substantial change in the parent Act. Sections 56 to 65 were substituted in place of the existing Sections 56 to 65, and the originally enacted Section 62 was repealed. The original Section 62 provided essentially for the rectification of mistake apparent from the record or in the valuation of any property or by reason of the omission of any property. The newly enacted Section 59 deals with property escaping assessment. The provision is analogous to Section 34 of the Indian Income Tax Act, 1922 and Section 147 of the Income Tax Act, 1961. It seems to us that the new Section 59 endeavours to cover a substantially different area from that treated by the old Section 62. The only area which seems common to the two provisions relates to the “omission of any property”, but it seems to us that the incidents of the power under Section 62 relate to a situation materially different from the incidents of the power contemplated under Section 59. The High Court has closely analysed the provisions of the two sections and has come to the conclusion that the power or re-assessment conferred by the new Section 59 is quite different from the power conferred by the old Section 62. We are in agreement with the High Court. The contention on behalf of the revenue based on the identity alleged between the new Section 59 and the old Section 62, and that, therefore, the new section should be regarded as retrospective cannot be accepted. 7. As it stands, there are no specific words either which confer retrospective effect to Section 59. To spell out retrospectivity in Section 59, then, there must be something in the intent to Section 59 from which retrospective operation can be necessarily inferred. We are unable to see such intent. The new Section 59 is altogether different from the old Section 62 and there is nothing in the new Section 59 from which an intent to give retrospective effect to it can be concluded. 8. The new Section 59 came into force from 1-7-1960. Much earlier, on 26-2-1960 the assessment on the accountable person had already been completed. There is 7. As it stands, there are no specific words either which confer retrospective effect to Section 59. To spell out retrospectivity in Section 59, then, there must be something in the intent to Section 59 from which retrospective operation can be necessarily inferred. We are unable to see such intent. The new Section 59 is altogether different from the old Section 62 and there is nothing in the new Section 59 from which an intent to give retrospective effect to it can be concluded. 8. The new Section 59 came into force from 1-7-1960. Much earlier, on 26-2-1960 the assessment on the accountable person had already been completed. There is a well settled principle against interference with vested rights by subsequent legislation unless the legislation has been made retrospective expressly or by necessary implication. If an assessment has already been made and completed, the assessee cannot be subjected to re-assessment unless the statute permits that to be done. Reference may be made to Controller of Estate Duty, West Bengal v. Smt Ila Das, [1981] 132 ITR 720 (Cal.), where an attempt to reopen the estate duty assessment consequent upon the insertion of the new Section 59 of the Estate Duty Act was held infructuous. 9. We hold that Section 59 of the Estate Duty Act is not retrospective in operation and that the reopening of the assessment under Section 59 of the Act is bad in law.” 5.3It was submitted that the words “pertains to” or “any information relates to” have been inserted with effect from 1.6.2015 and therefore, the amendment is prospective unless made specifically retrospective. 5.4Reference was also made to the decision of this court in the case ofKamleshbhai Dharamshibhai Patel v. Commissioner of Income Tax, [2013] 214 Taxman 588 (Guj.), wherein the court held thus: “20.What ever be the position of title of the lands post 16[th] September 2010, it can hardly be disputed that the documents in question belong to the petitioners. The petitioners required vacant possession of the land to be able to pass on the title and vacant possession. To be able to do so, the petitioners entered into agreements with the tenants. Such documents thus are documents which definitely belong to the petitioners. Simply because on subsequent date, the land was sold, may have a bearing on the title of such land, the same would not in any manner alter the nature of the document concerned. Such documents belong to the petitioners and continue to so belong, irrespective of the transfer of the title of the land. We do not see how the petitioners can contend that simply because at a subsequent point of time they disposed of the property and transferred the title to the purchasers, the documents since to belong to them. The term belongto has not been defined in the Act. In the Webster’s Third New Intl. Dictionary, the word, belong is described as, to have relation or reference to a person or thing. In Advanced Law Lexicon P. Ramanatha Aiyar [3[rd ]Edition], the term, belong in context of Section 400 IPC means, implied something more than the idea of casual association; it involves a notion of continuity and indicates a more or less intimate connection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected was identified himself with a band, the common purpose of which is the habitual commission of dacoity.” 5.5Reference was also made to the decision of the Supreme Court in the case of Commissioner of Income Tax v. Sinhgad Technical Education Society, (2018) 11 SCC 490, wherein it has been held thus: 5.5Reference was also made to the decision of the Supreme Court in the case of Commissioner of Income Tax v. Sinhgad Technical Education Society, (2018) 11 SCC 490, wherein it has been held thus: “20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of accounts or documents seized or requisitioned should belong to a person other than the person referred to in section 153A of the Act. This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well. The judgment of the Gujarat High Court in the said case went in favour of the Revenue when it was found on facts that the documents seized, in fact, pertain to third party, i.e. the assessee, and, therefore, the said condition precedent for taking action under section 153C of the Act had been satisfied.” 5.6It was submitted that the relevant date for applying the amended section 153C of the Act would be the date of actual search. Reference was made to the provisions of section 292C of the Act, which provides that where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 or survey under section 133A, it may, in any proceeding under the Act, be presumed that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person. It was submitted that once the hard-disc has been found from the premises of the searched person, considering the provisions of section clause (i) of sub-section (1) of section 292C of the Act, it is evident that no documents belonging to the petitioner have been found inasmuch as it is no one’s case that the hard disk belonged to the petitioner and hence, the pre-amendment provisions would apply, and therefore, the Assessing Officer lacks jurisdiction to initiate proceedings under the provisions of section 153C of the Act. 6.Mr. Sudhir Mehta, learned advocate for the petitioners in Special Civil Applications No.16419, 16421, 16425, 16426, 16427, 16782, 16786, 16800, 16801, 16821, 17771, 17788, 17789, 17790, 17791, 17793, 17796, 17797, 18270, 18271, 18272, 18273, 18274, 18712, 18773, 18777, 19232, 19234, 19236, 19321, 19323, 19325, 19647, 19676, 19844, 19871, 20221, 20228, 20241, 20244, 20245, 20272, 20276, 20825, 20828 and 20830 of 2018, reiterated the submissions advanced by Mr. Hardik Vora. Since the submissions advanced by the learned advocate are more or less similar to the submissions advanced by Mr. Hardik Vora, learned advocate, it is not necessary to reproduce the same. The learned advocate submitted that the amendment made in section 153C with effect from 1.6.2015 by Finance Act, 2015 would not be applicable as search was conducted much before that date. The learned advocate submitted that since the petitioners have come against the notice under section 153C of the Act, the petition is maintainable. In support of such submission reliance was placed upon the decisions of the Supreme Court in the case of State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, and in the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobraj Wadhwani and another, AIR 1961 SC 1506. effect from 1.6.2015 by Finance Act, 2015 would not be applicable as search was conducted much before that date. The learned advocate submitted that since the petitioners have come against the notice under section 153C of the Act, the petition is maintainable. In support of such submission reliance was placed upon the decisions of the Supreme Court in the case of State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, and in the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobraj Wadhwani and another, AIR 1961 SC 1506. 6.1 Reliance was also placed upon the decision of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1, wherein the court has held that under article 226 of the Constitution of India, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. Alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. It was submitted that in the facts of the present case, the proceedings under section 153C of the Act being wholly without jurisdiction, these writ petitions under article 226 of the Constitution of India are maintainable. 7.Mr. S. N. Soparkar, Senior Advocate, learned counsel with Mr. B. S. Soparkar, learned advocate for the petitioner in Special Civil Application No.18346 of 2018, submitted that the question that arises for consideration is whether the amendment of section 153C(1) of the Act with effect from 1.6.2015 is retroactive, retrospective or prospective. It was submitted that since the amendment has been made prospective, it would cover those cases where search is made after the amendment. It was submitted that on the date of search, there was no power to proceed against the petitioner under section 153C of the Act. It was submitted that if under section 153C of the Act as it stood then, the petitioner was not covered at the time of the search; the amended provisions cannot be made applicable to the petitioner. It was submitted that one should not interpret the amendment so as to cover what was impermissible at the time of the search. 7.1Reliance was placed upon the decision of the Supreme CourtinR.RajagopalReddyv.Padmini Chandrasekharan, (1995) 2 SCC 630, wherein the court held thus: “11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was “11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners