Gist of the order
Section 153A of the Act was introduced by the Finance Act, 2003 w. e. f. 01.06.2003 and it provides for assessment in the case of search or requisition. It is mandatory for the assessing officer, whenever there is a search under section 132, to issue notice to the person searched requiring him to furnish the returns of income for the six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted. Once the returns are filed, the assessing officer shall assess or reassess
the total income in respect of the each assessment year falling within the six assessment years. There is an Explanation to the section which provides that all other provisions of the Income Tax Act shall apply to the assessment made under this section, which means that the provisions of section 142, 143, etc. are applicable and these provisions ensure that reasonable opportunity is afforded to the petitioner to put forth his case. We are, therefore, unable to accept the contention of the petitioner that he would be put to harassment because of the notices issued under section 153A. The section is couched in mandatory language which implies that once there is a search, the assessing officer has no option but to call upon the assessee to file the returns of the income for the earlier six assessment years. It is not merely the undisclosed income that will be brought to tax in such assessments, but the total income of the assessee, including both the income earlier disclosed and income found consequent to the search, would be brought to tax. The normal provisions relating to inquiry, affording opportunity, etc., which are provided for in sections 142, 143, etc. are to be followed by the assessing officer. There is also a time limit for completion of the assessment under section 153A which is prescribed in section 153B. In these circumstances the petitioner‟s contention that he would be put through unnecessary harassment is a non-starter. He has to face the assessment proceedings and participate in them; in case he has evidence or material to show that he has not earned any income which is not disclosed to the income tax authorities or to rebut the material gathered during the search, it is perfectly open to him to do so. In fact, it is his right which is well protected by various provisions of the Income Tax Act. Appeal remedies are also available against the assessment framed. The apprehension of the petitioner is unfounded. This court is also of the opinion that frequent recourse to remedies under Article 226, similar to this one, are more often than speculative, and intended to delay and stall adjudication proceedings, which would have to take place. The scope of interference in these proceedings is limited to seeing whether there was a satisfaction recorded by the concerned officials. That part had been achieved by the previous writ proceedings; the only liberty reserved was to seek remedies in case the petitioner was issued notice under Section 153A. In the present case however the entire gamut of issues relating to the recording of satisfaction, and facts pertaining thereto were canvassed, to suggest that the notice was issued mindlessly. While the Court is conscious of a certain degree of hardship which would occur to any assessee whose premises are searched, that does not afford it any higher right or confer greater remedies, or expand the scope of a limited jurisdiction under Article 226. The present petition is therefore speculative, and misconceived.
Section 153A of the Act was introduced by the Finance Act, 2003 w. e. f. 01.06.2003 and it provides for assessment in the case of search or requisition. It is mandatory for the assessing officer, whenever there is a search under section 132, to issue notice to the person searched requiring him to furnish the returns of income for the six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted. Once the returns are filed, the assessing officer shall assess or reassess
the total income in respect of the each assessment year falling within the six assessment years. There is an Explanation to the section which provides that all other provisions of the Income Tax Act shall apply to the assessment made under this section, which means that the provisions of section 142, 143, etc. are applicable and these provisions ensure that reasonable opportunity is afforded to the petitioner to put forth his case. We are, therefore, unable to accept the contention of the petitioner that he would be put to harassment because of the notices issued under section 153A. The section is couched in mandatory language which implies that once there is a search, the assessing officer has no option but to call upon the assessee to file the returns of the income for the earlier six assessment years. It is not merely the undisclosed income that will be brought to tax in such assessments, but the total income of the assessee, including both the income earlier disclosed and income found consequent to the search, would be brought to tax. The normal provisions relating to inquiry, affording opportunity, etc., which are provided for in sections 142, 143, etc. are to be followed by the assessing officer. There is also a time limit for completion of the assessment under section 153A which is prescribed in section 153B. In these circumstances the petitioner‟s contention that he would be put through unnecessary harassment is a non-starter. He has to face the assessment proceedings and participate in them; in case he has evidence or material to show that he has not earned any income which is not disclosed to the income tax authorities or to rebut the material gathered during the search, it is perfectly open to him to do so. In fact, it is his right which is well protected by various provisions of the Income Tax Act. Appeal remedies are also available against the assessment framed. The apprehension of the petitioner is unfounded. This court is also of the opinion that frequent recourse to remedies under Article 226, similar to this one, are more often than speculative, and intended to delay and stall adjudication proceedings, which would have to take place. The scope of interference in these proceedings is limited to seeing whether there was a satisfaction recorded by the concerned officials. That part had been achieved by the previous writ proceedings; the only liberty reserved was to seek remedies in case the petitioner was issued notice under Section 153A. In the present case however the entire gamut of issues relating to the recording of satisfaction, and facts pertaining thereto were canvassed, to suggest that the notice was issued mindlessly. While the Court is conscious of a certain degree of hardship which would occur to any assessee whose premises are searched, that does not afford it any higher right or confer greater remedies, or expand the scope of a limited jurisdiction under Article 226. The present petition is therefore speculative, and misconceived.
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