COMMON JUDGMENT

T.S.Sivagnanam,J These appeals are directed against the common order passed in W.P.Nos.481 and 482 of 2020 dated 01.07.2021, whereby the writ petitions filed by the appellant were dismissed.

2.The orders impugned in the writ petitions were the proceedings initiated by the respondent under Section 147/148 of the Income Tax Act ['the Act' for brevity] for the assessment years 2016-17 and 2017-18. The validity of the reopening proceedings was questioned by the appellant on several grounds. Firstly, by contending that the respondent has no jurisdiction to issue notice under Section 148 of the Act and propose to make an assessment under Section 143(3) r/w. 147 of the Act although the materials relied upon were obtained during a search under Section 132 of the Act of another party at New Delhi. Further, it was contended that where the material relied upon was obtained in the course of search of another party, the proceedings of the appellant can be initiated only under Section 153C of the Act and no re-assessment under Section 147 of the Act can be resorted to. Therefore, it was contended that the re-assessment proposed under Section 147 of the Act is without jurisdiction.

3.The appellant placed reliance on the decision of the Hon'ble Supreme Court in the case of Manish Maheshwari vs. Assistant Commissioner of Income Tax and another [(2007) 289 ITR 341 (SC)] for the proposition that if the procedure laid in Section 158BD is not followed, the assessment proceedings will be illegal and the said decision can be applied to a case under Section 153C as the provisions are in pari materia. Further, it was submitted that Section 153A to Section 153C commences with a non-obstante clause and therefore, the respondent/Assessing Officer would have no jurisdiction to issue notice under Section 148 to reopen the assessment for the assessment years under consideration which would fall within the exclusive scope of Section 153A of the Act. Since the learned Writ Court found that the appellant had made out a prima facie case had entertained the writ petitions and an order of interim stay was granted. 4.The respondent filed counter affidavit, firstly, raising a preliminary objection with regard to the maintainability of the writ petitions as the appellant has got an effect statutory appellate remedy. Further, by referring to the decision of the Hon'ble Supreme Court in the case of Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement [2010 (253) ELT 3 (SC)], it was submitted that the case of the appellant would not fall under anyone of the exceptions which were pointed out in the said decision for entertaining a writ petition against the reopening proceedings. Further, it was submitted that the assessment under Section 147 was reopened on the basis of the information received from the Deputy Director of Income [Investigation]-8(1), New Delhi during the search made in the case of group of Companies under Section 132 of the act. The objections raised by the appellant for the reopening proceedings were also controverted in the counter affidavit. Further it has been stated in the counter affidavit that the assessment was reopened based on the information received about the appellant and no search material in respect of the appellant was received in the office of the respondent. In fact, such a stand has been taken in paragraphs 5, 7, 10, etc. and in other places. With regard to the contention of the appellant that Section 153A to Section 153C begin with the non- obstante clause, though the respondent accept the said position, it was contended that the notice under Section 148 of the Act cannot be issued only when the case falls within the parameters of Section 153A to Section 153C of the Act and in so far as the case of the appellant/assessee, the said provision do no apply and therefore, it does not matter as to whether those provisions commence with a non-obstante clause.

5.The writ petitions were heard by the learned Sin