Hon'ble Jaspreet Singh,J.
1. Heard Sri Amit Sharma, learned Counsel for the petitioner and Sri Manish Mishra, learned Counsel for opposite party Nos.1 to 3.
2. By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of notices dated 8.7.2019 issued under Section 153A of the Income Tax Act, 1961 for the Assessment Years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 and also prayed for issuance of Mandamus directing the respondent-authorities to forthwith release all documents which were seized on 27.2.2018.
3. According to the petitioner, recovery proceedings were initiated under Sections 222 to 232 of the Income Tax Act, 1961 (hereinafter referred to as "Act 1961") in respect of Assessment Years 2005-06 to 2011-12. On 26.2.2018, a survey under Section 132-A of the Act 1961 was conducted at the factory premises of the petitioner and even before issuance of notices under Section 226 (3) of the Act 1961, for the purposes of recovering the outstanding demand. The Tax Recovery Officer of the Income Tax Department also issued a summon under Section 131 of the Act, 1961. For the Assessment Years 2005-06 to 2013-14, Rs.10,02,79,885/- had been due from the company. On the next day, the survey culminated into a search and seizure operation under Section 132 of the Act 1961. Respondent No.2 issued notice under Section 153-A of the Act 1961 to prepare true and correct return of total income for the Assessment Years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 in the prescribed form and as per Rule 12 of Income Tax Rules, 1962.
4. In order to appreciate the aforesaid submission, it would be apt to reproduce the statutory provisions governing the field as contained under Section 153-A of the Act, 1961, which is reproduced as under :
"Assessment in case of search or requisition. 153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall-
(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;
(b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made :
Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years:
Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this [sub-section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate:
[Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made.] [(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner:
Provided that such revival shall cease to have effect, if such order of annulment is set aside."
5. A plain reading of Section 153A would show that where notice under this Section is issued as result of any search under Section 132, assessment or reassessment if any relating to any assessment year falling within the period of six assessment years referred to under Section 153, pending on the date of initiation of search under Section 132 or requisition under Section 132A shall abate. The words, pending on the date of initiation of search under Section 132, or making of requisition under Section 132A, as the case may be, has to be assigned simple and plain meaning. Where the assessment or re- ssessment is finalised, there are no pending proceedings to be abated, and restored to the file of the assessing officer.
6. First proviso to the Clause B of Section 153A(1) provides that assessing officer shall assess or reassess the total income of each of six assessment years. Second proviso contemplates that if any of the aforesaid six assessments is pending on the date of initiation of the search or making of requisition, the same shall abate.
7. In the present case, it is true that a notice was issued under Section 153 of the Act. The petitioner was asked to furnish true and correct particulars of income including the income, which was included by the petitioner in the original return while finalizing the total income, meaning thereby, the return filed in response to the notice under Section 153A includes the income tax income (if any) in addition to income originally declared by the petitioner while filing the return under Section 139(1) of the Act. Meaning thereby, in short, it is as clear as noon of the day that even after filing of the return under Section 153 of the Income Tax Act, in fact, originally declared and demand raised thereon remains alive.
8. It is pertinent to mention that there is no statutory provision under the Income Tax Act, 1961, which provides that in case search was conducted/assessment proceeding under Section 153A has been initiated, then, the tax, which remains unpaid by the assessee for the same period, cannot be recovered from the assessee. In the considered opinion of this Court, the ground raised by the petitioner for quashment of notice by taking into account Section 153A does not arise. It is not the case of the petitioner that the notice is without jurisdiction.
9. It is admitted position that till today, no reply to the notice nor any return for the said assessment years as required were furnished before the learned Authority. Even though if any order of assessment or re-assessment is passed, the petitioner is having statutory remedy of appeal. Furthermore, there is time limit prescribed for completion of assessment under Section 153-A of the Act, 1961.
10. On due consideration of the aforesaid, no case is made out to entertain this writ petition.
11. The writ petition filed by the petitioner has no merit and is accordingly dismissed.
.
[Jaspreet Singh, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 30.7.2019 lakshman