M/S Huawei Telecommunications (India) … vs Assistant Commissioner Of Income Tax, … on 30 March, 2026

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    Delhi High Court

    M/S Huawei Telecommunications (India) … vs Assistant Commissioner Of Income Tax, … on 30 March, 2026

    Author: V. Kameswar Rao

    Bench: V. Kameswar Rao

                              $
                              *     IN THE HIGH COURT OF DELHI AT NEW DELHI
    
                              %                                               Judgment reserved on: 18.12.2025
                                                                             Judgment delivered on: 30.03.2026
                                                                Judgment uploaded on: As per Digital Signature~
    
                              +     W.P.(C) 15970/2023, CM APPL. 64257/2023
                              +     W.P.(C) 13572/2024, CM APPL. 56719/2024
                              +     W.P.(C) 13553/2024, CM APPL. 56682/2024
                              +     W.P.(C) 14898/2024, CM APPL. 62466/2024
    
                                    M/S HUAWEI TELECOMMUNICATIONS
                                    (INDIA) COMPANY PVT. LTD.                                      .....Petitioner
    
                                                            versus
    
                                    ASSISTANT COMMISSIONER OF INCOME
                                    TAX, CENTRAL CIRCLE-2, DELHI & ANR                         .....Respondents
    
                              Advocates who appeared in this case
    
                              For the Petitioner            :        Mr. Arvind Datar and Mr. Tarun Gulati,
                                                                     Senior Advocates with Mr. Kishore Kunal,
                                                                     Ms. Ankita Prakash and Mr. Anuj Kumar,
                                                                     Advocates.
    
                              For the Respondents           :        Mr. Indruj Singh Rai SSC, Mr.Sanjeev
                                                                     Menon, Mr. Rahul Singh JSCs and Mr.
                                                                     Gaurav Kumar, Mr.Siddharth Burman,
                                                                     Advocates.
    
                                    CORAM:
                                    HON'BLE MR. JUSTICE V. KAMESWAR RAO
                                    HON'BLE MR. JUSTICE VINOD KUMAR
    
                                                                    JUDGMENT
    

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 1 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22

    V. KAMESWAR RAO, J.

    SPONSORED
                                       S.No.                      Particulars         Page Nos.
                                         1.                   INTRODUCTION                2
                                         2.                  FACTUAL MATRIX               4
                                         3.         SUBMISSIONS ON BEHALF OF THE
                                                             PETITIONER
                                              3.1        RE : SPECIAL AUDIT              11
                                              3.2       RE : REASSESSMENT                21
                                         4.         SUBMISSIONS ON BEHALF OF THE
                                                            RESPONDENTS
                                              4.1        RE : SPECIAL AUDIT              28
                                              4.2       RE : REASSESSMENT                36
                                         5.            REJOINDER SUBMISSIONS             54
                                         6.                SUR-REJOINDER                 60
                                         7.                   REBUTTAL                   67
                                         8.          ANALYSIS AND CONCLUSION             73
                                              8.1          REASSESSMENT                  73
                                              8.2          SPECIAL AUDIT                 103
                                         9.            OPERATIVE DIRECTIONS              107
    
                              INTRODUCTION
    
    

    1. The captioned petitions have been filed challenging the directions of
    the respondent/Revenue requiring special audits to be carried out on the
    accounts of the petitioner- Huawei Telecommunications (India) Company
    Private Limited (hereinafter referred to as the petitioner and the assessee
    interchangeably) for the Assessment Year (AY) 2013-14 and 2015-16 under
    Section 142 (2A) of the Income-tax Act, 1961 (the Act), and also
    challenging the decision of the respondents/Revenue to initiate reassessment
    proceedings against the petitioner for AY 2013-14 and AY 2015-16,

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 2 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22
    pursuant to a search and seizure carried out on 15.02.2022 under Section
    132(1)
    of the Act.

    2. By way of W.P.(C) 13553/2024 and W.P.(C) 14898/2024, the
    petitioner is impugning the audit direction dated 13.09.2024 along with
    notices dated 10.06.2024 and 05.07.2024 relatable to AY 2013-14 and the
    audit direction dated 08.10.2024 along with notices dated 10.06.2024 and
    05.07.2024 relatable to AY 2015-16 respectively.

    3. W.P.(C) 13572/2024 and W.P.(C) 15970/2023 have been filed
    impugning the following respectively:

    i. Notice dated 31.03.2024 issued under Section 148 of Act and
    notice dated 24.05.2024 issued under Section 143(2) of the Act
    and reasons recorded dated 29.05.2024, for the Assessment
    Year (AY) 2013-14.

    ii. Notice dated 31.03.2023 under Section 148 of the Act and
    notice dated 25.05.2023 issued under Section 143(2) of the Act
    along with the reasons recorded, for AY 2015-16.
    iii. Explanation 2 to Section 148 of the Act and the proviso to
    Section 148A of the Act, to declare them unconstitutional,
    being in violation of Part III of the Constitution of India.

    4. The petitioner is a company incorporated in 2002 under the provisions
    of the Companies Act, 1956, engaged in the business of assembly and
    trading of telecom network equipment and providing installation,
    commissioning and other support services to various customers in India. It
    also renders business support services to its various overseas associated
    companies.

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 3 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22

    FACTUAL MATRIX

    5. In W.P.(C) 13553/2024 and W.P.(C) 13572/2024 for AY 2013-14, it
    has been submitted that on 29.11.2013, the petitioner filed its Return of
    Income declaring a loss of Rs. 311,04,30,235/-. Further on 30.03.2015, the
    petitioner filed its revised Return of Income declaring a loss of
    Rs.310,39,86,024/-. On 28.10.2016, the Transfer Pricing Officer passed an
    order under Section 92 of the Act proposing certain adjustments. Further on
    29.12.2016, the draft assessment order was passed, assessing the total
    income at Rs.287,16,50,257/- and proposing the following adjustments:

                                                                  Particulars         Amount
                                            S.No.                                      (INR)
                                            1.       Transfer Pricing adjustment on  1,97,84,000
                                                     account of Intra Group Services
                                            2.       Disallowance under Section         88,62,908
                                                     36(1)(va) of the Act on
                                                     employee provident fund
                                            3.       Advertisement Expenses           6,89,16,793
                                            4.       Provision for Customer Claims   12,86,11,894
                                            5.       Advance written off                61,60,172
    

    Total adjustment /disallowance proposed 22,23,35,767
    in the draft order

    6. On 20.09.2017, certain directions were passed by the Dispute
    Resolution Panel. Consequently, on 03.10.2017 the jurisdictional Assessing
    Officer passed the final assessment order assessing the total loss of the
    petitioner at Rs. 2,94,03,55,100/-. Thereafter, the petitioner filed an appeal
    before the Income Tax Appellate Tribunal (the Tribunal) against the
    assessment order. The Tribunal allowed the appeal of the petitioner for AYs
    2012-13 and 2013-14 and decided the issue raised by the petitioner
    regarding provisions for customer claims in favor of the petitioner.

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    SHARMA
    Signing Date:30.03.2026
    15:19:22

    7. In W.P.(C)14898/2024 and W.P.(C)15970/2023 for AY 2015-16, it
    has been submitted that the petitioner filed its Return of Income, declaring
    an income of Rs.235,80,79,340/-. Further, on 31.03.2017, it filed a revised
    Return of Income declaring an income of Rs.2,35,79,73,090/- and claimed a
    refund of Rs.48,45,960/-.

    8. Thereafter, on 15.02.2022, a search and seizure operation was
    undertaken by the Revenue in exercise of powers under Section 132 (1) of
    the Act at the registered office of the petitioner. On 17.02.2022 and
    19.02.2022, the bank accounts and trade receivables of the petitioner were
    provisionally attached by the Revenue under Section 132(9B) of the Act.
    During the course of the search, various documents, gadgets including
    electronic records from the laptops, hard drives and mobile phones of the
    employees of the petitioner were seized and further, statements of various
    officials of the petitioner company were recorded on several occasions
    between 15.02.2022 to 22.02.2022.

    9. During the search, 42 items of information/material were submitted
    by the petitioner, including the laptop of one Mr. Zhaolei (who is an
    employee of the petitioner) having the Enterprise Resource Planning (ERP)
    accounting system access along with its username and password. ERP
    accounting system is a comprehensive accounting system which contains all
    data required for preparation of balance sheet, profit and loss account,
    ledgers etc. and can be accessed using a user ID and password. Thus, the
    entire books of accounts and necessary details are available on the ERP
    systems which can also be downloaded in a format suitable (i.e., Microsoft
    Excel) for the ERP software access. During the search, the Revenue sought
    backup raw data/ data dump, which formed the basis of entries on the ERP

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    SHARMA
    Signing Date:30.03.2026
    15:19:22
    system and also for transactional level data. Accordingly, the same was
    downloaded by the representatives of the petitioner for Financial Years (FY)
    2014-15, 2019-20 and 2020-21 and submitted the same on 18.02.2022.
    Thereafter, for FY 2015-16 to FY 2018-19, the data was provided on
    19.02.2022. However, during the process of copying the relevant ERP data
    in Microsoft Excel (as per the requirements of the Revenue) some of the
    entries (for FY 2016-17 and FY 2017-18) were inadvertently copied twice/
    overwritten due to the numerous entries in the excel sheets. By way of
    emails dated 06.05.2022, 10.05.2022, 22.03.2023 and 01.04.2023, the
    petitioner also submitted reconciliation before the respondent No.1. No
    issues were either raised or communicated to the petitioner thereafter.

    10. Meanwhile, the petitioner filed a writ petition bearing WP(C)
    No.6352/2022 before this Court challenging the provisional attachment of its
    bank accounts and trade receivables. This Court, vide order dated
    30.08.2022 lifted the provisional attachment subject to certain conditions.
    Later, the petitioner, by way of CM Appln. No. 46949/2023, sought liberty
    to repatriate royalty and dividend outside India. By order dated 09.02.2024,
    this Court, while allowing repatriation of royalty and deferring decision on
    payment of dividend, inter alia directed the Revenue to ensure that the
    search assessments are completed with due expedition and preferably by
    31.12.2024.

    11. On 31.03.2024 and 24.05.2024 the respondents issued the notices
    under Section 148 and Section 143(2) of the Act for AY 2013-14. On
    31.03.2023 and 25.05.2023 the notices under Section 148 and Section
    143(2)
    of the Act were issued for AY 2015-16.

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 6 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22

    12. The preliminary objection raised is that the impugned notices are
    time-barred as the time-limit of three years prescribed under Section
    149(1)(a)
    of the Act, as amended by the Finance Act, 2021, to reopen the
    assessment for AYs 2013-14 and 2014-15 stands expired on 31.03.2017 and
    31.03.2019 respectively. Further, the jurisdictional pre-condition to reopen
    an assessment beyond 3 years and up to 10 years under Section 149(1)(b)
    i.e., escapement of income amounting to Rs. 50 lakh or more, represented in
    the form of an „asset‟ is not satisfied in the present case, as no income
    relating to an „asset‟ has even been pointed out by the Revenue which has
    escaped assessment. Therefore, no fresh incriminating material has been
    unearthed by the Revenue during the search proceedings and thus, the
    impugned notices are ex facie time-barred, without jurisdiction and are liable
    to be quashed.

    13. A challenge has also been mounted to Explanation 2 to Section 148 of
    the Act as well as proviso to Section 148A of the Act (the impugned
    provisions) as being in violation of Part III of the Constitution of India,
    inasmuch as, the procedural safeguards laid down by the Supreme Court in
    GKN Driveshafts v. ITO, [2003] 259 ITR 19 (SC) and statutorily prescribed
    under Section 148A of the Act have not been made applicable to search
    cases. Further, in view of the impugned provisions, even in absence of any
    incriminating material/information available, the Assessing Officer is
    deemed to have information which suggests that income chargeable to tax
    has escaped assessment for issuing a notice under Section 148 of the Act,
    thereby granting unbridled power to the Revenue in search cases, which is
    manifestly arbitrary, discriminatory and does not have any rational nexus
    with the object sought to be achieved by the Finance Act, 2021. The

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    SHARMA
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    impugned provisions also fail to distinguish between cases where
    incriminating material is found vis-à-vis those cases where no such
    incriminating material is found during the search. Even on this basis on
    account of failure to treat these two separate categories differently, the
    impugned provisions are discriminatory and are liable to be struck down as
    ultra vires the Constitution of India.

    14. On 10.06.2024, the respondents issued the notice under Section 142
    (2A)
    of the Act to the petitioner to show cause as to why the accounts of the
    petitioner should not be audited by an accountant as defined in the
    Explanation to Section 288(2) of the Act, on the basis of the following:

    i. During the search, the petitioner provided only the ERP dump
    without providing the details as required. There are certain
    issues relating to the correctness of the ERP data provided by
    the petitioner;

    ii. ERP data submitted cannot be treated as necessary compliance
    for providing adequate facility to inspect the books of accounts
    during the search;

    iii. Significant differences were found in two financial years (i.e.,
    for FYs 2016-17 and 2017-18) in the data provided during the
    search and the final data provided by the petitioner post search;
    and
    iv. Correctness of the ERP data provided by the petitioner is
    doubtful and that there are duplicate and missing entries as per
    the petitioner.

    15. On 05.07.2024, the petitioner replied to the notice inter-alia submitted
    the following:

    i. The show-cause notice is completely vague and does not even
    refer to any specific jurisdictional ingredient of Section 142
    (2A)
    which is sought to be invoked;

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    SHARMA
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    ii. In the absence of examination of accounts, the same cannot be
    treated as „complex‟ for the purpose of making reference under
    Section 142(2A) of the Act.

    iii. No independent finding in the show-cause notice for the subject
    AY;

    iv. Missing/ duplicate entries for FY 2016-17 and FY 2017-18
    were due to an error while copying the data and was duly
    pointed out by the petitioner:

    v. No discrepancies found in the accounts in the other years;
    vi. The pre-condition laid down in Section 142(2A) of the Act is
    not fulfilled in the present case;

    vii. Roving and fishing enquires cannot be made through special
    audit in absence of any specific defects in the books of account;
    viii. Extend the timeline for completion of the post-search
    assessment proceedings in view of the directions of this Court
    dated 09.02.2024;

    16. On 05.07.2024, the respondents issued a revised notice under Section
    142(2A)
    of the Act to show cause as to why the accounts of the petitioner
    should not be audited, reiterating the grounds mentioned in the notice dated
    10.06.2024 and additionally raising doubts regarding the allowability of the
    provision for customer claims. The revised notice also contained the Terms
    of Reference, which are as follows:

    i. To construct books of accounts of the petitioner from the ERP
    data dump seized during the search action for AY 2013-14;
    ii. The petitioner failed to provide its books of accounts and rather
    only provided the transaction level details as downloaded from
    their ERP system in excel format, which needs to be reconciled
    with the audited financials and ledgers of receipts and expenses
    needs to be prepared and reconciled with the Profit & Loss of
    the petitioner;

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    SHARMA
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    iii. For determining Arm‟s Length Price of different transactions,
    the petitioner has prepared different segments in different years;
    iv. In terms of Companies (Accounts) Fourth Amendment Rules,
    2022 (vide Gazette Notification dated 05.08.2022), the
    company is required to keep back up of the digital books of
    accounts in India which is accessible all the times and back up
    needs to be taken daily. Therefore, any argument about non-
    availability of back up of digital books of accounts may be
    pointed out.

    v. The petitioner has created and claimed the provision of
    customer claims as deduction for the purpose of income tax
    calculation. The said provision was created by the petitioner
    due to the probable deduction that the customer might make on
    account of potential delay in supply of goods or provision of
    services. The petitioner has not clarified if such liquidated
    damages are recovered by the petitioner from its overseas
    Associated Enterprise. Hence, it may also be ascertained
    whether the petitioner should incur these expenses by itself or
    get them reimbursed from the Associated Enterprise based on
    Functions Assets Risks Analysis (FAR Analysis) as per the
    Transfer Pricing Report submitted for the year.

    17. On 12.07.2024, the petitioner replied to the notice, inter alia stating
    that the allowability of items of expenses (customer claims) for AY 2013-14
    has already been the subject matter of scrutiny in the original assessment
    proceedings before the Assessing Officer and the Transfer Pricing Officer.

    With respect to AY 2015-16, it submitted that the validity of any inter-
    company transaction is a subject matter of verification to be done by the
    Transfer Pricing Officer during the course of re-assessment proceedings and
    the same cannot be referred to the special auditor.

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 10 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22

    SUBMISSIONS ON BEHALF OF THE PETITIONER
    RE: SPECIAL AUDIT

    18. Mr. Arvind Datar and Mr. Tarun Gulati, learned Senior Counsel for
    the petitioner company have submitted at the outset that the impugned
    notices and the consequential directions have been issued without
    jurisdiction, inasmuch as the ingredients for invoking Section 142(2A) are
    not satisfied in the present case. Section 142(2A) of the Act reads as under:

    (2A) If, at any stage of the proceedings before him, the
    Assessing Officer, having regard to the nature and complexity
    of the accounts, volume of the accounts, doubts about the
    correctness of the accounts, multiplicity of transactions in the
    accounts or specialized nature of business activity of the
    assessee, and the interests of the revenue, is of the opinion that
    it is necessary so to do, he may, with the previous approval of
    the Principal Chief Commissioner or Chief Commissioner or
    Principal Commissioner or Commissioner, direct the assessee
    to get either or both of the following, namely:–

    (i) to get the accounts audited by an accountant, as
    defined in the Explanation below sub-section (2) of
    section 288, nominated by the Principal Chief
    Commissioner or Chief Commissioner or Principal
    Commissioner or Commissioner in this behalf and to
    furnish a report of such audit in the prescribed form duly
    signed and verified by such accountant and setting forth
    such particulars, as may be prescribed, and such other
    particulars as the Assessing Officer may require;\

    (ii) to get the inventory valued by a cost accountant,
    nominated by the Principal Chief Commissioner or Chief
    Commissioner or Principal Commissioner or
    Commissioner in this behalf and to furnish a report of
    such inventory valuation in the prescribed form duly
    signed and verified by such cost accountant and setting
    forth such particulars, as may be prescribed, and such
    other particulars as the Assessing Officer may require:

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    SHARMA
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    Provided that the Assessing Officer shall not direct the assessee
    to get the accounts so audited or inventory so valued unless the
    assessee has been given a reasonable opportunity of being
    heard.

    19. Their contention is that before issuance of the impugned notices and
    directions, the respondent No. 1 was required to formulate an opinion based
    on the „complexity, voluminous, doubts about the correctness of the
    accounts, multiplicity of transactions in the accounts or specialized nature
    of business activities of the Assessee and in the interest of the revenue’.
    However, in the present case none of the aforesaid jurisdictional conditions
    have been satisfied by the respondent No. 1 before formulating an opinion
    and the impugned notices and directions have been issued in a mechanical
    manner without any application of mind. The impugned proceedings have
    been initiated on the basis of vague and unsubstantiated allegations that the
    books of accounts of the petitioner are not reliable and cannot be correlated
    with ERP software, despite the fact that the books of accounts of the
    petitioner have been scrutinized in detail by the assessing authority as well
    as the appellate authority during the course of the regular assessment for the
    relevant period. In any case, for the present relevant period, the books of
    accounts of the petitioner were never sought by the Revenue and thus, never
    examined. Therefore, the impugned directions have been passed without any
    basis. Further, in the present case, the sole basis adopted by the Revenue for
    direction of special audit under Section 142(2A) is duplication of entries for
    FYs 2016-17 and 2017-18, which was merely a clerical error which arose
    while copying the relevant data in Microsoft Excel wherein, some of the
    entries were copied twice/overwritten due to the numerous entries in the
    excel sheets as per the requirement of the Revenue. The said clerical error

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    has duly been explained and rectified by the petitioner by furnishing the
    correct ERP data dump culminating into trial balance and profit and loss
    account for the relevant period through emails dated 06.05.2022,
    10.05.2022, 22.03.2023 and 01.04.2023, and thereafter, no issues have been
    raised or communicated by the Revenue. However, none of the explanations
    contained in the aforesaid emails have been considered by the Revenue
    while passing the impugned directions. The impugned notices and directions
    are vague, cryptic and fail to justify the requirement of invoking the
    provisions of Section 142(2A) of the Act. It is their contention that
    therefore, the impugned notices and the directions are liable to be quashed.

    20. They submitted that the respondent No. 1 has merely reproduced the
    language of Section 142(2A) of the Act in the impugned directions as
    evident from paragraph 20 wherein, it has been concluded that the necessity
    for special audit has arisen on account of unstructured data and discrepancy
    therein, satisfying the jurisdictional requirement of complexity and volume
    of accounts and multiplicity of transactions, without actually analysing the
    requirements of Section 142(2A) of the Act. Further, the approval given by
    the respondent No. 2 is also mechanical in nature and the copy of the said
    approval has not been provided to the petitioner. They have drawn our
    attention to the judgment in Simplex Infrastructure Limited v. CCGST,
    Kolkata
    , 2016 (42) STR 634, wherein it was held that proceedings initiated
    by merely reproducing language of the jurisdictional provisions, cannot be
    sustained.

    21. It is also submitted that the books of accounts on which special audit
    is being sought by the Revenue for AY 2013-14 have been duly scrutinized
    at various earlier stages by the very same authorities and were never found

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    to be discrepant or warranting a special audit at any of these earlier stages.
    However, prior to issuance of the impugned notices, no attempt has been
    made to examine the books of accounts of the petitioner and the same have
    been arbitrarily termed as complex. The present special audit directions are
    inter alia based on the very same additions which have already been made
    by the Revenue and have been decided in favour of the petitioner by the
    Tribunal.

    22. They have also contended that the Revenue is attempting to conduct a
    „fishing and roving enquiry‟ to extend the timeline to complete the
    reassessment proceedings as the same has been directed to be completed by
    31.12.2024 by this Court.

    23. It is also submitted that the determination of Arms‟ Length Price in
    respect of international transactions between the petitioner and its
    Associated Enterprise is the jurisdiction of the Transfer Pricing Officer and
    not the special auditor.

    24. The learned Senior Counsel for the petitioner also submitted that the
    impugned proceedings are a clear change of opinion, as the books of
    accounts of the petitioner have been consistently been accepted by the
    Revenue. A reading of the impugned directions would reveal that the
    proceedings have been sought to be justified for two reasons- (1) as the ERP
    data dump submitted by the petitioner during the course of search as well as
    ERP data software discloses that the books of accounts are complex and
    voluminous; and (2) the transactions customer claim undertaken with AEs
    requires closer analysis by a special auditor. It is submitted that however,
    both of the above factors existed even at the stage of scrutiny assessment for
    AY 2013-14 as well as the appellate stage. No new factor other than the

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    ones already raised during the scrutiny assessments has been reflected in the
    impugned notices and direction to justify invocation of Section 142(2A) of
    the Act. That apart, the issues relating to the transactions of customer claims
    undertaken with the Associated Enterprise have already been decided by the
    Tribunal in favour of the petitioner.

    25. It is also their submission that Section 142(2A) of the Act cannot be
    invoked in those cases where reassessment proceedings have already been
    initiated. The purpose of Section 142(2A) of the Act is to provide an aid at
    the stage of assessment proceedings and the same cannot be invoked at the
    stage of reassessment. The scope of reassessment proceedings are limited
    only to the extent of escaped income and therefore, the special audit
    directions cannot be permitted to audit the entire books of accounts of the
    petitioner beyond the reasons/information based on which reassessment
    proceedings have been initiated. Reliance in this regard is placed on the
    judgment of the Supreme Court in CIT v. SUN Engineering, (1992) 4 SCC
    12 363, as well as of the Bombay High Court in Ritz Ltd. v. CIT, (1995) 216
    ITR 138 wherein it has been categorically said that the jurisdiction of
    Income-tax officer is confined only to bring to charge the income which has
    escaped assessment or was under assessed.

    26. It is also submitted that even assuming all the allegations in the
    impugned notices as well as the directions to be correct, there is no
    discrepancy for the present relevant period as mapping from ERP dump to
    trial balance, profit and loss account to audited financials for FY 2016-17
    and FY 2017-18 were done to the satisfaction of the authorities by way of
    emails dated 06.05.2022, 10.05.2022, 22.03.2023 and 01.04.2023 and no
    issues were either raised or communicated to the petitioner after the said

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    communication. Secondly, in any event, even these allegations are
    completely misplaced and perverse. Thirdly, the alleged discrepancies do
    not automatically establish the requirement of complex or voluminous books
    of accounts. Therefore, the impugned directions have assumed jurisdiction
    in an erroneous manner and are thus, liable to be quashed.

    27. Mr. Datar has submitted that without examining the books of
    accounts of the petitioner for the relevant period, „complexity‟ or „doubts
    about the correctness of the accounts‟ cannot be presumed. Further,
    duplication of entries while copying data also cannot lead to such
    presumption of „complexity‟ or „doubts about the correctness of the
    accounts‟, making the impugned notices and directions bad in law. The
    duplicate entries were nothing but clerical errors occurred during the
    copying of data and correct set of data along with detailed reconciliation of
    ERP data dump (provided during the search proceedings) vis-à-vis the trial
    balance, profit and loss account, etc. mapped with the audited financial
    statements and the necessary documents were shared vide email dated
    06.05.2022, 10.05.2022, 22.03.2023 and 01.04.2023. However, despite
    providing categorical explanation, the impugned directions erroneously
    observed that differences were noted between the data provided during the
    search and the final data provided by the petitioner. Further, the books of
    account of the petitioner were otherwise available and accessible and even
    the said differences which arose on account of copying the data stood fully
    explained as well as supplemented with the Chartered Accountant‟s
    certificate. Therefore, there is no basis for assuming that there were any
    discrepancies in the same.

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    28. He stated that Section 142(2A) of the Act requires the Assessing
    Officer to demonstrate the complexity of the accounts of the assessee which
    an ordinary prudent person, reasonably informed about accounts and law is
    not in a position to comprehend, as a condition precedent. He has referred
    the judgment of the Supreme Court in the case of Rajesh Kumar and Others
    v. DY CIT and Others
    . (2007) 2 SCC 181, wherein, it was held that:

    ―13. The expression ―complexity‖ would mean the state or
    quality of being intricate or complex or that it is difficult to
    understand. Difficulty in understanding would, however, not
    lead to the conclusion that the accounts are complex in nature.
    No order can be passed on whims or caprice.‖

    29. He contended that complexity of accounts cannot be equated with
    giving raw ERP data which was later converted into Trial Balance and was
    duly provided to the respondents for FY 2014-15 to 2020-21. Though the
    Revenue is repeatedly alleging that the ERP data dump provided by the
    petitioner are complex in nature, nowhere in the impugned notices and
    directions has it been specified that on what basis it arrived at the conclusion
    that the books of accounts of the petitioner is complex and voluminous in
    nature, requiring special audit. In the absence of proper examination of the
    ERP data dump along with the other documents, it cannot be concluded
    merely on a cursory glance that the books of accounts are complex in nature.
    It is his case that thus, the impugned notices and the impugned directions are
    illegal and without jurisdiction. Reference in this regard is also made to the
    judgments in Swadeshi Cotton Mills Co. Ltd. v. CIT, 1988 (171) ITR 634,
    Sahara India (Firm), [2008] 300 ITR 403 (SC), and Delhi Development
    Authority v. Union of India, [2013] 350 ITR 432 (Delhi)

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    30. Further, he stated that no specific findings have been made relating to
    the AYs under challenge herein, making it obvious that no independent
    discrepancy has been found for the relevant period, or other years except
    FYs 2016-17 and 2017-18.

    31. Another submission of the learned Senior Counsel for the petitioner is
    that voluminous accounts and multiplicity of accounts cannot be merely
    presumed on account of lakhs of line items in the ERP data or on number of
    transactions. This is for the reason that the words “volume of the accounts,
    doubts about the correctness of the accounts, multiplicity of transactions in
    the accounts or specialized nature of business activities of the Assessee”

    have been inserted after the words “the nature and complexity of the
    accounts” in Section 142(2A) of the Act by the Finance Act, 2013, w.e.f.
    01.06.2013. Prior to the amendment, special audit under Section 142(2A) of
    the Act could have been directed only in case where the accounts of the
    assessee were “complex” in nature and having regard to the interests of the
    Revenue. The rationale for the aforesaid amendment has been explained in
    the Memorandum explaining provisions in the Finance Bill, 2013, in the
    following words:

    ―Direction for special audit under sub-section (2A) of section
    142
    The existing provisions contained in sub-section (2A) of
    section 142 of the Income-tax Act, inter alia, provide that if at
    any stage of the proceeding, the Assessing Officer having
    regard to the nature and complexity of the accounts of the
    assessee and the interests of the revenue, is of the opinion that
    it is necessary so to do, he may, with the approval of the Chief
    Commissioner or Commissioner, direct the assessee to get his
    accounts audited by an accountant and to furnish a report of
    such audit. The expression ―nature and complexity of the
    accounts‖ has been interpreted in a very restrictive manner by

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    various courts. It is, therefore, proposed to amend the aforesaid
    sub-section so as to provide that if at any stage of the
    proceedings before him, the Assessing Officer, having regard
    the nature and complexity of the accounts, volume of the
    accounts, doubts about the correctness of the accounts,
    multiplicity of transactions in the accounts or specialized
    nature of business activity of the assessee, and the interests of
    the revenue, is of the opinion that it is necessary so to do, he
    may, with the previous approval of the Chief Commissioner of
    the Commissioner, direct the assessee to get his accounts
    audited by an accountant and to furnish a report of such
    audit.‖

    32. The contention raised by the learned Senior Counsel for the petitioner
    based on the above is that it is evident from the above that special audit
    reference can be made only if the concerned Officer believes that it is not
    possible for him to form an opinion on the correctness of accounts of the
    Assessee keeping in mind the nature, volume and complexity of accounts.
    Based on such audited accounts, the Assessing Officer has to himself form
    an opinion and arrive at conclusions regarding tax implications, if any, and
    this function cannot be delegated to the special auditor. Thus, even today
    complexity of account has to be established by the Revenue before making a
    reference under Section 142(2A) of the Act, which has not been done in the
    present case and the impugned notices and directions have been issued
    mechanically.

    33. It is also stated that the expressions “volume of the accounts” does not
    refer only to the sheer number of transactions or the turnover of an assessee
    but has reference to the multitude of transactions or integrated transactions
    in respect of one single financial transaction, which make the accounts
    complex. Similarly, the expression “multiplicity of the transactions in

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    accounts” again does not refer to the number of transactions undertaken in
    the books of accounts but refers to multiple transactions undertaken in
    respect of one single financial transaction. Thus, the interpretation adopted
    by the Revenue that since the ERP data dump consists of lakhs of
    transactions, the same is complex in nature, is completely erroneous.

    34. They have also contested the stand of the Revenue that the petitioner
    undertakes “a very specialized nature of business activity” by stating that the
    petitioner undertakes its business in a manner similar to any other
    multinational telecom equipment supplier and merely because the goods
    supplied by the petitioner is telecom equipment does not lead to the
    assumption that the business activity is „specialized‟. In any case, the nature
    of business cannot lead to complexity of accounts, requiring special audit.

    35. That apart, it is submitted that „interest of the Revenue‟ is one of the
    jurisdictional criteria for invoking Section 142(2A) of the Act. However, the
    same cannot be read unilaterally but has to be read conjointly with other
    jurisdictional factors provided under the Act.

    36. It has also been stated that for AY 2013-14, regular assessment
    proceedings were already completed and in fact, on the very same issues as
    raised in the Terms of Reference of the impugned directions, there exists an
    order of the Tribunal. Even otherwise, the issues raised in the impugned
    notices and directions are regular routine issues which do not require
    appointment of a special auditor. The issue pertaining to allowability of
    customer claims has been decided in favour of the petitioner by the Tribunal
    vide order dated 24.02.2021 in AYs 2012-13 and 2013-14. The issue of
    allowability of warranty expenses is decided in the favour of the petitioner
    by Tribunal in the petitioner‟s case for AYs 2008-09 and 2009-10 vide

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    orders dated 07.05.2018 (reported as 2018 (171) ITD 19) and 06.06.2019.
    Therefore, the issue has been finally settled by the Tribunal and the
    impugned notices and direction have been issued ignoring the same and
    thus, are liable to be quashed.

    37. Yet another submission is that the Terms of Reference are beyond the
    scope of Section 142(2A) of the Act, as the Assessing Officer does not have
    any authority to direct preparation of fresh books of accounts for the
    assessee. To buttress this argument, reliance is placed on the judgment in the
    case of CIT v. Bajrang Textiles, [2007] 294 ITR 561 (Rajasthan).

    RE: REASSESSMENT

    38. The learned Senior Counsel for the petitioner have submitted that the
    reopening of the two assessment years are beyond the six years limitation
    provided under Section 153A(1)(b) of the Act read with first proviso to
    Section 149(1) of the Act, and is also barred by limitation because the
    jurisdictional requirements of Section 153A of the Act are not satisfied. The
    fourth proviso to Section 153 A requires that reopening beyond six years is
    permissible only if there is evidence that reveals that income which has
    escaped assessment is represented in the form of an “asset” and the income
    escaping assessment should exceed Rs.50 lakhs in the relevant year.

    39. They have submitted that from a bare perusal of the impugned
    notices, it is clear that the sole basis for the initiation of reassessment
    proceedings was information “that a search was initiated u/s 132“. Further,
    the reasons furnished by the Revenue do not disclose any incriminating
    material indicating escapement of income amounting to Rs. 50 lakhs or
    more, represented in the form of an „asset‟. As per Section 148 read with

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    Section 149(1)(b) of the Act, where more than 3 years (but not more than 10
    years) have elapsed from the end of the relevant AY, notice under Section
    148
    can be issued only if the following conditions are cumulatively satisfied:

    a. AO has in his possession books of account or other
    documents or evidence;

    b. Such document/evidence/books of accounts shall reveal that
    some income chargeable to tax has escaped assessment;
    c. Such income which has escaped assessment should have
    been represented in the form of „asset‟; and
    d. Amount of escaped income is or is likely to be more than Rs.
    50 lakhs for that year.

    40. In the present case, the impugned notices and the reasons recorded do
    not even allege, let alone establish, the satisfaction of any of the above stated
    mandatory jurisdictional preconditions. The Revenue has neither alleged nor
    referred to any document/evidence in the reasons which reveals that income
    represented in the form of „asset‟ had escaped assessment and the quantum
    of such escapement was Rs. 50 lakhs or more.

    41. Explanation 2 to Section 153A of the Act, which is applicable to
    searches conducted on or before 31.03.2021, defines the term “asset” and
    which shall include immovable property being land or building or both,
    shares and securities, loans and advances, deposit in bank account. It is their
    contention that in the absence of any information found during the course of
    search and as recorded in the reasons furnished by the Revenue suggesting
    escapement of income amounting to Rs. 50 lakhs or more, represented in the
    form of an asset, the entire proceedings initiated under Section 148 read with
    Section 149(1)(b) are vitiated for want of jurisdiction.

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    42. Section 153A of the Act which was inserted with effect from
    01.06.2003 replaced the erstwhile provisions of Section 158BB etc. which
    had the concept of „block assessment years‟, which has now been done away
    with. It is submitted that each assessment year has to be dealt with
    separately and for reopening an assessment, incriminating material in each
    year has to be seen separately as held by the Supreme Court in Principal
    Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P
    .)

    Ltd.,[2023] 454 ITR 212 (SC), and this Court in Saksham Commodities
    Ltd. v. Income Tax Officer
    , [2024] 464 ITR 1 (Delhi). Absent incriminating
    material unearthed on account of search, the reopening of assessment under
    Section 153A of the Act cannot be sustained. Even otherwise, with respect
    to searches conducted after 01.04.2021 and before 01.09.2024, opening or
    re-opening of assessment can be undertaken only by issuance of notice
    under Section 148 of the Act, which has to be issued for each year
    separately. Therefore, absent incriminating material leading to reasons to
    believe for a concerned year, opening or re-opening of assessment for such
    year is barred by jurisdiction.

    SUBMISSIONS FOR AY 2013-14

    43. Mr. Datar and Mr. Gulati have submitted that for AY 2013-14, the
    allegation of the Revenue is that the expenses on account of „provision for
    customer claims‟ amounting to Rs. 12,86,11,894/- were wrongly claimed as
    deductible expense, and this has resulted in income escaping assessment.

    This is the solitary reason mentioned in the reasons recorded for reopening.
    However, the reasons do not refer to any incriminating material unearthed
    on account of search. Regarding the issue of disallowance of provision for
    customer claims, the exact same amount of Rs. 12,86,11,894/- was initially

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    disallowed by the Assessing Officer and confirmed by the DRP in the
    original assessment proceedings conducted under Section 143(3) of the Act.
    This issue was then considered by the Tribunal for AYs 2012-13 and 2013-
    2014 which set aside the said disallowance on the ground that the
    petitioner/taxpayer had furnished adequate evidence to show that the
    provision for customer claims were “ascertained liability” and deductible.
    The issue of disallowance of provision for customer claims has since
    attained finality. It is their contention that an issue which has already been
    decided by the Tribunal cannot be reopened by the Assessing Officer under
    Section 148 of the Act, more so when the finding of the Tribunal was not
    challenged in appeal.

    44. They have also stated that apart from the impermissibility of seeking
    to reopen a settled issue, there is no question of any escaped income
    represented in the form of an asset, or of any „receivables‟ with regard to the
    provision for customer claims, In fact there is no reference to „receivables‟
    even in the reasons recorded.

    45. Heavy reliance is placed by the learned Senior Counsel for the
    petitioner upon the judgment of this Court in the case of Smart Chip Private
    Ltd. v. ACIT
    , 2025:DHC:2834-DB to contend that disallowance of an
    expense cannot be a ground to invoke Section 148 of the Act.

    46. They have also contested the stand of the Revenue that the issue of
    provision for customer claims was also existent in AY 2015-16 but was not
    picked up during reassessment by relying upon the following table:

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    47. It is their submission that the Revenue, in order to justify the illegal
    and arbitrary reopening of assessment, has adopted inconsistent stand for the
    sole reason to reopen the assessment beyond six years limitation provided
    under Section 153A of the Act. Therefore, without the existence of an asset,
    AY 2013-14 being beyond 6 years, the impugned notice dated 31.03.2024 is
    time barred and is liable to be quashed on the basis of limitation, In any
    event, there is no incriminating material disclosed as a result of search.
    Therefore, the reassessment proceedings are liable to be quashed even
    otherwise.

    SUBMISSIONS FOR AY 2015-16

    48. According to the learned Senior Counsel for the petitioner, the sole
    ground for reopening the assessment for AY 2015-16 is that the provision
    for warranty expenses incurred by the petitioner is reimbursed by the
    Associated Enterprise, and therefore the notional receivables on this account
    amounts to an asset. However, they stated that the Distribution Agreement
    relevant for AY 2015-16 does not have any clause for reimbursement of the
    provision for warranty expenses. Therefore, when there is no right to receive
    any reimbursement, the theory of “receivables” must collapse, and the
    reopening of assessment is liable to be quashed.

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    49. Further, disallowance of provision for warranty expenses is also
    impermissible, as held by the Supreme Court in the judgment in Rotork
    Controls Pvt. Ltd. v. CIT
    , (2009) 314 ITR 62, wherein a warranty claim
    based on an estimate of 1.8% of the turnover was upheld. That apart,
    requiring the provision for warranty claim to be an asset is contrary to the
    accrual method of accounting principles mandated by the Companies Act,
    1956
    /2013.

    50. Mr Datar has submitted that the provision for warranty is based on a
    percentage which is determined based on the historical evidence of defects
    that have occurred. After ascertaining the actuals, the unutilised provision
    will be added back to the income of the petitioner in the tax returns and no
    reimbursement is required at all as it would be automatically credited to the
    profit and loss account as well as increased taxable profits. Further,
    assuming without admitting, if the Associated Enterprise actually reimburses
    the warranty expenses, such amount will be added to the taxable income in
    the year of such receipt, not in the year when the provision is made. Thus,
    there is no question of escapement of income represented in the form of
    receivables.

    51. He stated that in the absence of a contractual provision for
    reimbursement, there is no “receivable” and consequently, no “asset”. The
    alleged receivables are a complete assumption of the Revenue which is not
    based on any contractual obligation between the parties. Further, the
    Revenue is in possession of all the records and if the receivables are shown
    as an asset, it must have been reflected so in the balance sheet. In the present
    case, the receivables on account of warranty are not shown as an asset at all.
    Further, merely stating an item of liability or expense to be in the form of an

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    asset is completely against the intent and letter of pre-conditions provided in
    the fourth proviso to Section 153 A of the Act read with first proviso to
    Section 149(1) of the Act, which clearly mandates the existence of
    “documents or evidence that revealed that income, represented in the form
    of asset”. It is submitted that receivables, as argued by the Revenue, is
    nothing but a notional or fictional asset and the law only contemplates the
    existence of a real or tangible asset.

    52. That apart, since the petitioner and its Associated Enterprises are
    subject to transfer pricing, the Arms‟ Length Price is determined by
    applying the Transaction Net Margin Method (TNMM) approach which
    takes into account the profit margins that is determined by the Revenue.
    Thus, once the profit margin is determined, no further addition can be made
    because all eligible items of expenditure and all amounts includible as
    income are already taken into account while determining the Arms‟ Length
    Price and the Net Margin, and there is no requirement to recover each and
    every transaction entered with its Associated Enterprises. Therefore, the
    warranty expenses, even if receivable, will not form an asset in transfer
    pricing cases. Moreover, these receivables are not shown in the balance
    sheet as an asset, in view of the approval of transfer pricing assessments.

    53. According to the learned Senior Counsel for the petitioner, the
    Revenue has taken an inconsistent stand for AY 2015-16 by considering the
    provision for warranty expenses as an asset, whereas for subsequent AYs
    2016-17, 2017-18, and 2018-19, the same has been considered as entries in
    the books of accounts. This contradictory stand reflects the attempt of the
    Revenue to vaguely justify the reopening beyond six years as provided
    under Section 153A of the Act.

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    54. They have also stated that the issue of disallowance of provision of
    warranty expenses has already been decided in favour of the petitioner by
    the Tribunal vide order dated 07.05.2018 for AY 2008-09 and order dated
    06.06.2019 for AY 2009-10 in the petitioner’s own case.

    55. In view of the above, they have sought the prayers as made in the
    petitions.

    SUBMISSIONS ON BEHALF OF THE RESPONDENTS
    RE: SPECIAL AUDIT

    56. Mr. Indruj Singh Rai, learned Senior Standing Counsel for the
    respondents/Revenue would contest the stand of the petitioner. He stated
    that during the course of the search, the officials of the company were
    inquired about the books of accounts of the company. Only audit report in
    Form 3CA and Form 3CD were submitted by the assessee during the search.
    As per Point 11(b) of Form 3CD, following books of accounts were
    mentioned to be maintained at the Registered Office of the petitioner where
    the search was carried out:

    i. General ledger ( computerized),
    ii. Journal Book (computerized)
    iii. Monthly payroll records ( computerized),
    iv. Inventory ledger (Computerized),
    v. Fixed assets register (computerized),
    vi. Other relevant documents, bills, vouchers, receipts, debit notes,
    credit notes, inventory register, agreements, orders etc.

    57. However, these were neither available at the mentioned address nor
    provided by the petitioner during the search. Instead, it only provided the
    ERP data dump without providing details as required. The ERP data
    provided by the petitioner was segregated into years and further into months.

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    The total value of credits and debits in various financial years were totaled
    and a summary sheet was prepared. Significant difference was found in two
    financial years from the data provided during the course of the search and
    the final data provided by the petitioner thereafter. While enquiring about
    the same during the search, the petitioner stated that certain values in the
    ERP data and the final data need to be deleted and some were to be added.

    58. It is his case that in such a scenario, the correctness of the ERP data
    provided by the petitioner remains doubtful, more so when it is conceded by
    the petitioner itself, that there exist duplicate and missing entries. As such,
    the ERP data as provided cannot be relied upon to assess the correct income.
    That apart, the statement of Mr. Lalit Kumar, statutory auditor of the
    petitioner was recorded under Section 131(1) of the Act on 23.5.2022,
    wherein he had stated that raw ERP data is not sufficient to audit the books
    of the company and the same has to be reconciled with the financials. He
    also stated that the completeness of the ERP data also needs to be
    established by appropriate procedures. As per Mr. Rai, in view of the same,
    the ERP data submitted cannot be treated as necessary compliance for
    providing adequate facility to inspect the books of accounts during the
    search.

    59. He has drawn our attention to Section 128 of the Companies Act,
    2013 to contend that a company is allowed to keep books of accounts or
    other relevant papers in electronic mode, in the manner prescribed in Rule 3
    of Companies (Accounts) Rules, 2014 and Sub Rule (5) thereof mandates
    that a proper system for storage, retrieval, display or printout of the
    electronic records is required to be kept and such records cannot be disposed
    of or rendered unusable, unless permitted by law. It further prescribes that a

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    back-up of the books of accounts and other books and papers of the
    company maintained in electronic mode, including at a place outside India,
    if any, shall be kept in servers physically located in India, on a periodic
    basis. Neither was such location conveyed during the search nor in response
    to the summons dated 31.05.2022. Moreover, the Companies (Accounts)
    Rules, 2014, now prescribe that a daily backup of the digital books of
    accounts is required to be kept in servers physically located in India. Even
    the details of such backup servers were not provided by the petitioner. His
    contention is that therefore, the discrepancies in linkages of ERP data
    submitted with the final financials of the company, points towards failure of
    necessary compliance.

    60. Mr. Rai stated that the powers available under reassessment
    proceedings are analogous to assessment proceedings once a notice under
    Section 143(2) is issued. Once reassessment proceedings are triggered by
    way of issuance of notice under Section 148 of the Act, the return filed in
    response to such notice is to be treated as a return under Section 139 of the
    Act and the provisions of the Act would accordingly be applicable. Thus, all
    the powers that would be available during the course of regular assessment
    are also available when the reassessment proceedings are carried. In order to
    carry forward the aforesaid submission, he has referred to the provisions of
    Section 148 of the Act which reads under:

    ―148. Before making the assessment, reassessment or
    recomputation under section 147, and subject to the provisions
    of section 148A, the Assessing Officer shall serve on the
    assessee a notice, along with a copy of the order passed, if
    required, under clause ( d) of section 148A, requiring him to
    furnish within such period, as may be specified in such notice, a
    return of his income or the income of any other person in

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    respect of which he is assessable under this Act during the
    previous year corresponding to the relevant assessment year, 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: ….. ―

    61. According to him, a perusal of the above would establish that:

    i. Return filed in response to a notice under Section 148 would be
    treated as a return under Section 139 of the Act.
    ii. The proceedings, as would be applicable if a return under
    Section 139 was actually furnished, would kick in and the
    procedure to initiate assessment which would start by way of
    issuance of notice under Section 143(2) of the Act would
    similarly apply to the instances where reassessment
    proceedings are initiated.

    iii. Accordingly, all the powers that would be available to the
    Assessing Officer that would normally be available in the
    course of assessment would also be available during the
    reassessment proceedings under Section 148 of the Act.
    iv. Thus, the powers to call for information and make inquiries as
    available under Section 142 of the Act would be available while
    carrying out the reassessment proceedings.

    62. He also submitted that a reading of Section 142 of the Act would
    reveal that the powers available to the Assessing Officer thereunder are for
    the purpose of making an assessment and the word assessment under Section
    2(8)
    of the Act has been defined to include reassessment. He stated that the
    above fact, along with a perusal of the judgments of this Court in Shaily
    Juneja v. Assistant Commissioner of Income-tax
    , 2024 SCC Online Del
    6310, and Principal Commissioner of Income Tax v. Dart Infrabuild (P)
    Ltd., ITA 10/2022 would reveal that after the issuance of notice under

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    Section 148 of the Act, a return is to be filed which is to be treated as a
    return under Section 139, and since it is mandatory to issue a notice under
    Section 143(2) of the Act, it flows from the aforesaid that the powers
    available to the Assessing Officer in the course of regular/scrutiny
    assessment are also available at the time of reassessment. Therefore, a
    careful conspectus of the facts and circumstances of the case coupled with
    the requirements mandated under Section 142(2A) of the Act would reveal
    that this is a fit case for directing special audits to be undertaken.

    63. He submitted that the words “volume of the accounts, doubts about
    the correctness of the accounts, multiplicity of transactions in the accounts
    or specialised nature of business activity of the assessee” that finds mention
    in Section 142(2A) of the Act, were introduced by virtue of the Finance Act,
    2013
    to expand the scope of the powers available under Section 142(2A) of
    the Act, because earlier the words “nature and complexity” were being given
    a very restrictive meaning. The said words were added to the provision to
    ensure that there is a wide ambit by way of which the interests of the
    Revenue would be protected without hindering upon the rights that may be
    available to the assesses. A challenge raised to the constitutional validity of
    the amendment introduced by the Finance Act, 2013 to Section 142(2A) of
    the Act was turned down by this Court in the case of Sahara India
    Financial Corporation Ltd. v. Commissioner of Income Tax
    , (2017) 399
    ITR 81.

    64. It is the case of the Revenue, as propounded by Mr. Rai that the
    conditions mandated for special audit with regard to the nature, complexity
    and volume of accounts as well as the correctness of the same have arisen in
    the case of the petitioner, as:

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    i. Instead of providing the books of accounts, the assessee had
    provided the ERP data dump which was voluminous in nature
    and spread across various years.

    ii. The ERP data was in itself erroneous as it was admitted by the
    assessee, itself that there were duplication of data of FYs 2016-
    17 and 2017-18 and therefore, some entries were to be added
    whilst others were to be deleted.

    iii. The Tax Head of the petitioner, Mr. Amit Duggal, had stated
    that books of accounts were kept in the system of the Deputy
    Manager, (Finance) and that he was not aware of the location of
    the ERP system server and whether there was any backup
    server in India.

    iv. The Deputy CFO of the petitioner, Mr. Sandeep Bhatia, stated
    that they could download the necessary reports, based on
    requirement by raising a query in the ERP system and that he
    was also not aware if the physical servers were located in India.
    v. The statutory auditor of the petitioner, i.e. Mr. Lalit Kumar,
    stated in his statement under Section 131(1) that raw ERP data
    was not sufficient to audit the books of the company and the
    same was to be reconciled with the financials of the company.
    vi. The mandate of Section 128 of the Companies Act, 2013 was
    also not met as the top officials of the company were not aware
    as to whether any backup of books of accounts was maintained
    on servers physically located in India.

    vii. The petitioner only provided transaction level data and not the
    books of accounts.

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    65. Reliance in that regard is placed on the decision of the High Court of
    Gujarat in Takshashila Realities Private Limited v. DCIT (SCA NO.
    4613,4614, 4619 & 4620 of 2017 dated 21.03.2017 wherein the submission
    that the Assessing Officer cannot direct special audit under Section 142 [2A]
    of the Act before calling/or the accounts from the assessee in the assessment
    proceedings and without doubting the accounts and/or considering the
    complexity in the accounts, was negated and it was held that as per the
    amended Section 142 [2A] of the Act, apart from the nature and complexity
    of the accounts, etc., even in case of multiplicity of transactions in the
    accounts or specialised nature of business activity of the assessee and the
    interests of the Revenue, the Assessing Officer can pass an order for special
    audit.

    66. He submitted that the conditions specified in Section 142(2A) are to
    be read in a conjunctive manner which is evident from the use of the word
    “and‖ before the phrase “interest of the Revenue” and thus, objective
    satisfaction is required to be reached by the Assessing Officer in light of the
    facts of the case. Reliance in this regard is placed on the judgment of the
    Supreme Court in the case of Rajesh Kumar v. Deputy Commissioner of
    Income Tax
    , [2006] 287 ITR 91 (SC), which held as under:

    ―12. The formation of opinion of the Assessing Officer must be
    on the premise that while exercising his power regard must be
    had to the factors enumerated therein. The use of the word ‘and’
    shows that it is conjunctive and not disjunctive. All the
    aforementioned factors are conjunctively required to be read.
    The formation of opinion indisputably must be based on
    objective consideration.‖

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    67. Mr. Rai has stated that the submission of the learned Senior Counsel
    for the Revenue that the petitioner had duly provided its books of accounts,
    is baseless as there was no definitive answer given by key personnel of the
    petitioner when they were asked to produce the books of accounts. He
    alleges that the petitioner is attempting to stall the proceedings by first
    giving evasive answers to specific requests of the respondents and then
    contending that the records were available on the laptop of the CEO, which
    were made available. He has referred to the judgment of the High Court of
    Judicature at Allahabad in Sahara India Mutual Benefit Co. Ltd. v.
    Commissioner of Income Tax
    , [2004] 269 ITR 563 (Allahabad), wherein,
    according to him, it was held that when the books of accounts are not
    produced and the intent of the assessee is to deliberately stall the
    proceedings, then they could not raise a hue and cry regarding the same.

    68. That apart, he has submitted that a direction for special audit may
    render serious civil consequences for an assessee and therefore, when the
    determination of direction for a special audit is to be given, it should be
    followed with the objective satisfaction of the Assessing Officer in
    consonance with the interest of the Revenue. This is predicated on the
    intention of the legislature to balance the rights of the assessee and the
    interest of the Revenue, i.e., to determine taxable income and act on the
    same accordingly, is not jeopardised.

    69. He stated that it is trite law that when the conduct of an assessee is not
    transparent and the details as called for are not provided, a special audit may
    be required to be carried out. Reliance in this regard is made to the judgment
    of this Court in DLF Limited. v. Additional Commissioner of Income Tax,
    (2014) 366 ITR 390.

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    70. It is his contention that in view of the above, the direction for special
    audit was issued in accordance with law. He has sought dismissal of the
    petitions.

    RE: REASSESSMENT

    71. Mr. Rai, has at the outset stated that during the course of the hearings,
    the petitioner has specifically waived their challenge to the vires of
    Explanation 2 to Section 148 in W.P.(C)15970/2023 and
    W.P.(C)13572/2024, and have restricted their challenge to the singular issue
    of whether or not there was income which has escaped assessment in the
    form of an “asset” having value exceeding Rs. 50 lakhs for the purpose
    limitation under Section 149 read with the fourth proviso to Section 153(A)
    of the Act.

    72. Before submitting on the law, he has endeavored to provide a factual
    background of the present litigations.

    AY 2015-16

    73. He stated that, the petitioner did not fully cooperate during the search
    proceedings and did not provide entire documents and data for the relevant
    years. Rather, it merely provided an unorganised data dump and it was seen
    that there were discrepancies and duplication of approximately Rs. 6,136
    crore in the debit value of book entries and approximately Rs. 6,454 crore in
    the credit value in the books of accounts. This was also categorically
    admitted by the petitioner as noted in the reasons provided in AY 16-17.

    74. Pursuant to the notice under Section 148 dated 31.03.2023, a note
    sheet recording the satisfaction for issuing the notice was communicated to
    the petitioner, wherein, it was stated that there was escapement of income in

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    the nature of an “asset” being “receivables” on account of warranty claims
    reimbursements that were due from the Associated Enterprise of the
    petitioner. The factual background to such receivables have been stated to be
    the following:

    a. The assessee‟s parent entity, based in China, manufactures telecom
    equipment;

    b. The assessee acts as a distributor of such telecom equipment in India
    and sells it to Indian telecom companies;

    c. The assessee achieves the distribution by purchasing the equipment
    from its parent entity and selling it onwards to Indian clients;
    d. As part of the sale of the equipment, the assessee also provides a
    warranty to Indian customers that would cover any losses towards
    manufacturing defect in the equipment;

    e. However, since the assessee was not the manufacturer of the
    equipment, it had a back to back commitment from its parent entity to
    reimburse the assessee for any amounts that it goes out of pocket for
    towards the Indian customers. The evidence of such back to back
    commitment was two-fold as also noted in the satisfaction note are as
    follows:

    i. The Transfer Pricing Study Report clearly recorded that all risk
    with respect to warranty claims was to be borne by the foreign
    parent of the assessee and not by the assessee.
    ii. This aspect about the Transfer Pricing Report of the assessee
    with respect to the claim of warranty expenses made by the
    assessee was specifically noted by the Assessing Officer as under:

    M/s Huawei Telecommunications (India)
    Company Private Limited

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    AY 2015-16
    Approval for issuance of order u/s 148 of the Act
    ―5.3.2 The company has claimed expenses as provision of
    warranty in the various years. The Transfer Pricing Report of
    HTICPL show that the claim of warranty expenses made by the
    assessee is against the functional and risk profile detailed by the
    assessee in its Transfer Pricing Report in view of the’ functional,
    asset, risk analysis of this transaction. Year wise bifurcation of the
    issue in monetary terms is as given below in Table form.

                                       AY           Provision         Remarks
                                                    for    warranty
                                                    claimed
                                       2012-13      6,64,20517        Provision amount of ₹ 6,64,20,517 was
                                                                      created as 2012-13 6,64,20,517 per
                                                                      P&L Account
                                       2013-14                        No provision was created during the
                                                                      previous year
                                       2014-15      12,33,22,221      Provision amount of ₹12,33,22,221
                                                                      was created as per P&L Account
                                       2015-16      55,72,52,128      Provision amount of ₹ 55,72,52,128
                                                                      was created as per P&L Account
                                       2016-17      48,37,99,536      Provision amount of ₹48,37,99,536
                                                                      was created as per P&L Account
                                       2017-18      40,88,97,095      Provision amount of ₹20,39,44,418
                                                                      was created as per P&L Account and ₹
                                                                      20,49,52,676 was debited as per the
                                                                      provision of ICDS (refer to the clause
                                                                      Be of tax audit report)
                                       2019-20      81,23,81,153      Provision amount of ₹ 70,50,27,509
                                                                      was created as per P&L Account and
                                                                      ₹10,73,53,644 was debited as per the
                                                                      provision of ICDS (refer to the clause
                                                                      Be of tax audit report)
                                       2020-21      19,75,18,259      Provision amount of ₹19,75,18,259
                                                                      was created as per P&L Account
                                       2021-22      16,88,49,299      Provision amount of ₹16,88,49,299
                                                                      was created as per P&L Account
    
    
    
    
    

    iii. Distribution agreement entered into between the assessee and
    its parent entity stating that the assessee would be reimbursed for
    any expenses towards the warranty claims made by the end Indian
    customers, noted as below:

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    ―5.3.4. As per the Distribution agreement between assessee
    and it’s Associated Enterprises i.e. M/s Huawei International
    Pte Ltd, any expenditure incurred on account of warranty is
    required to be borne by the supplier of the product i.e., the
    Associated Enterprises. However, assessee has debited
    warranty expenses and not shown any separate
    compensation being received from the supplier in the books
    of accounts. The argument of the assessee that the warranty
    expenditure is required to be borne by it in terms of the
    contract with the final client is fallacious. While the
    provision of warranty for supply of a defective product might
    be the obligation of the assessee, in terms of its supply
    contract with the final client, in terms of the distribution
    agreement, such warranty is finally required to be borne by
    the supplier of the product. Thus, while the assessee may be
    required to recognise the expenditure on warranty in its
    books of accounts due to its obligations towards the final
    client, reimbursement or compensation received from the
    supplier is also required to be recognised in the same way.
    The assessee cannot be in a worse position vis-a-vis
    warranty, even after back to-back compensation being
    provided by the supplier.‖
    f. With respect to the tax treatment of the warranty claims, it was
    observed that the assessee had made a provision on an estimate basis of
    any future warrant claims and claimed expense deduction in the
    relevant AY even though no such expense is incurred in the said AY.
    g. It was in this light that it was specifically noted by the Assessing
    Officer that while there were doubts with respect to the allowability of
    the expense claims made by the assessee, especially with respect to the
    accuracy of such provisioning, as to whether the assessee was claiming
    expenditure deduction and reducing its taxable profits on account of
    future expenses. If so, it must also reflect the receivables due from its
    Associated Enterprise since the eventual liability was of the Associated

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    Enterprise and any such receivable if shown would be the income of
    the assessee to offset the expense claimed on provisioning basis. The
    satisfaction note records as under:

    ―5.3.4. As per the Distribution agreement between assessee and
    it’s Associated Enterprises i.e. M/s Huawei International Pte Ltd,
    any expenditure incurred on account of warranty is required to be
    borne by the supplier of the product i.e., the Associated
    Enterprises. However, assessee has debited warranty expenses
    and not shown any separate compensation being received from the
    supplier in the books of accounts. The argument of the assessee
    that the warranty expenditure is required to be borne by it in
    terms of the contract with the final client is fallacious. While the
    provision of warranty for supply of a defective product might be
    the obligation of the assessee, in terms of its supply contract with
    the final client, in terms of the distribution agreement, such
    warranty is finally required to be borne by the supplier of the
    product. Thus, while the assessee may be required to recognise
    the expenditure on warranty in its books of accounts due to its
    obligations towards the final client, reimbursement or
    compensation received from the supplier is also required to be
    recognised in the same way. The assessee cannot be in a worse
    position vis-a-vis warranty, even after back to-back compensation
    being provided by the supplier.‖

    75. Based on the above discovery of the FAR analysis in the Transfer
    Pricing Study and the back-to-back commitment in the Distribution
    Agreement, it was noted by the Assessing Officer that an amount
    commensurate to the amount of expense claimed towards provisioning of
    the future warranty claims tantamount to receivable of INR 12,33,22,221/-
    in the books of accounts of the assessee in the nature of an “asset”. The
    satisfaction note in this regard records as under:

    ―5.3.7. As per discussion above, accounting treatment given by
    the taxpayer in its books of accounts is the claim of Provision of
    warranty expenses as an expenditure in profit and loss account,

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    while there is no reimbursement/recoupment of expenses from the
    associated enterprises. Therefore, the income which has escaped
    assessment (Rs.12,33,22,221/-) should exist as a payment
    receivable in the books of accounts of the taxpayer, which is in the
    nature of an ‘asset’. Accordingly, I am satisfied that the books of
    account seized during search suggest that the income chargeable
    to tax of Rs.12,33,22,221/- has escaped assessment represented in
    form of asset in the case of assessee for A.Y. 2015-16‖

    76. The Principal Commissioner of Income-Tax (PCIT), while granting
    its approval also noted that there was escapement of income reflected in the
    form of an “asset” i.e., receivable and the conditions set out in section
    149(1)(b) read with the 4th proviso to section 153A were met. It is also
    stated that no assessment was carried out for AY 2015-16 under Section
    143(3) and this was the first time the issue of warranty claims would be
    examined by the Assessing Officer.

    AY 2013-14

    77. Mr Rai has submitted that for AY 2013-14, the issue is with regard to
    provision for warranty claims made by the petitioner, which was reimbursed
    by the Associated Enterprise. His contention is that therefore, income of the
    petitioner has escaped assessment, in the nature of receivables for customer
    claims.

    78. Pursuant to the search and the notice issued under Section 148 of the
    Act, a note sheet recording the satisfaction for issuance of the notice was
    communicated to the petitioner, wherein it was stated that income
    represented in the form of an asset as well as entry in books of account of
    the assessee, as gathered from the seized material, amounting to at least Rs.
    12,86,11,894/-, which is more than Rs. 50 lakh, has escaped assessment.
    Even the PCIT and Chief Commissioner of Income-Tax (CCIT) while

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    according their approval, had noted that income has escaped assessment in
    the form of assets, i.e., receivables of customer claims.

    79. He stated that customer claims which were a liability of the assessee
    towards liquidated damages i.e., delay or short delivery of telecom
    equipment, were not disclosed by the assessee. The assessee again had
    claimed expenses to reduce its taxable profits towards provisioning of
    customer claims that may arise in the future. However, akin to warranty
    claims, the eventual liability to bear the liquidated damages, on account of
    the back to back commitment, was of the foreign Associated Enterprise of
    the assessee. Therefore, the amount commensurate to customer claims
    expense was receivable from the Associated Enterprise and since the
    assessee did not reflect such amount as receivable assets in its books of
    account or as income despite claiming deduction, there was escapement of
    income in the form of an asset.

    80. The information related to the same was derived from the Transfer
    Pricing Report of the petitioner, from which it can be seen that the entire risk
    towards the customer claims was towards the associated enterprise and not
    the assessee. He stated that since the incriminating material was derived
    from the same search, a more detailed background to the escapement in the
    form of customer claims as receivable for AY 2013-14 itself was set out in
    reasons articulated for AY 2016-17 (which is the subject matter of a
    different writ petition bearing W.P.(C) 15972/2023), wherein it is clearly
    stated that the FAR Analysis in the Transfer Pricing Report shows that the
    assessee should be reimbursed for the customer claims by its Associated
    Enterprise since the Transfer Pricing Report evidences that the entire risk
    with respect to customer claims is borne by the foreign Associated

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    Enterprise and not the assessee, which can only be achieved by the
    Associated Enterprise reimbursing the assessee.

    81. Mr. Rai submitted that while the draft assessment order for AY 2013-
    14 has not been passed yet, the same for AY 2015-16 has been passed,
    wherefrom it can be seen that the assessee has in fact, recovered an amount
    of Rs. 69,81,40,820 towards reimbursement of customer claims from its
    from Associated Enterprise as per its own statement made during the course
    of reassessment. The relevant part of the draft assessment order for AY
    2015-16 is reproduced below:

    ―13.1 In response, the assessee has furnished its response vide letter dated
    22.04.2025, and the same has been reproduced as below:

    ―In this regard, it is submitted that the Assessee has created provision for customer
    claim amounting to INR 88,51,14,056 during the subject AY, the working of the same
    is enclosed as Annexure 4. The break-up of the same is provided as under:‖
    Amount (in INR) Remarks
    7,02,12,421 Refer Note 26 (other expenses) of the
    audited financial statements
    11,67,60,815 Refer Note 27 of audited financial
    statements
    69,81,40,820 Refer footnote below Note 27. In this
    regard, it is submitted that the same
    has already been recovered from the
    Associated Enterprises and
    therefore, there is no impact on the
    Profit and Loss account to this
    extent.

    88,51,14,056 Total Amount

    82. According to him, the above clearly establishes that the preliminary
    reasoning of the Assessing Officer, in the reasons pursuant to search, are not
    only based on incriminating material but also on the admission of the

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    petitioner in the assessment subsequent to the reopening, that there have
    been reimbursements.

    83. The learned Senior Standing Counsel has submitted that the
    assessment regime related to search and seizure proceedings underwent a
    paradigm shift from 01.04.2021, prior to which assessments pursuant to a
    search were carried out in accordance with Section 153A of the Act. Such
    assessment/ reassessment was initiated by way of a notice under Section
    153A itself, which permitted assessment to be carried out for six assessment
    years immediately preceding the assessment year of the search and further
    provided for an extended period of reopening of past years up to a maximum
    of ten assessment years computed from the end of the assessment year from
    which the search was carried out. From 01.04.2021 onwards until
    01.09.2024, the assessment/ reassessment pursuant to search was to be
    carried out under Section 147 of the Act. Such assessment/ reassessment
    would be initiated by way of a notice under Section 148 (instead of Section
    153A under the earlier regime). Further, Section 149 provided that such
    assessment / reassessment pursuant to a search could be carried out within a
    period of three years from the end of relevant assessment year, extendable to
    ten assessment years from the end of the relevant assessment year.

    84. His contention is that it is paramount to note that there is no
    requirement for the Assessing Officer to have any information suggesting
    escapement of income to reopen past years pursuant to a search. The
    legislature has expressly achieved this by providing a deeming fiction in
    Explanation 2 to Section 148 of the Act as it was in force then, stating that in
    case of a search, the Assessing Officer shall be “deemed to have information
    which suggests that the income chargeable to tax has escaped assessment”.

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    Additionally, there is also no requirement for the Assessing Officer to
    furnish any show-cause notice together with the reasons for reopening or to
    provide any opportunity to the assessee prior to the reopening of past years
    pursuant to a search. This flows from the proviso to Section 148A of the Act
    as it was in force then. Therefore, in cases of search, pursuant to a specific
    deeming fiction, past years can be reopened without the specific requirement
    of furnishing of reasons or an opportunity to the assessee. The reason for
    such deeming fiction is to ensure that assessments in serious cases of search
    are not hindered on account of procedural requirements, particularly since a
    search is only initiated on fulfillment of conditions as set out in Section 132
    of the Act and on specific approval of superior authorities. As such, once a
    search is carried out, then the Assessing Officer can reassess past years and
    make the addition/disallowance based on the material available during or
    post search. Even prior to 01.04.2021 the assessment under Section 153A,
    pursuant to a search, was carried out without serving of any show-cause
    notice and only on service of a notice under the said provision.

    85. He has drawn our attention to the judgment in Principal
    Commissioner of Income-tax v. Naveen Kumar Gupta
    [2024] 168
    taxmann.com 574 (Delhi), wherein this Court while drawing a comparison
    between Sections 153A and 148 regimes as they stood prior to 01.04.2021
    explained the need to keep assessments pursuant to a search free from
    procedural hurdles, stated as follows:

    “59. The non obstante clause as used in Section 153C of the
    Act cannot be read to completely exclude the provisions of
    Sections 143 or 147 of the Act in cases where the assessee’s
    income is sought to be assessed inter alia on the basis of the
    information found during search proceedings. However, it will

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    not be open for the AO to take recourse to Section 147 of the
    Act, where the AO has taken steps under Section 153C of the
    Act. Thus, if the conditions for exercise of jurisdiction under
    Section 153C of the Act are satisfied and the AO issues a
    notice as required under Section 153C of the Act, any
    reassessment under Section 147 of the Act would obviously, be
    impermissible. This is because the Act does not contemplate
    parallel assessment proceedings. Where the AO is satisfied
    that the assets, material and documents forwarded by the AO
    of the searched person under Section 153C of the Act has a
    bearing on determination of the income of the assessee for any
    of the years, the AO shall proceed to issue a notice under
    Section 153C of the Act. By virtue of non obstante clause, the
    AO is not required to follow the procedural rigours of Section
    148
    of the Act. Subject to obtaining the approval under
    Section 153D of the Act, if necessary, the AO is not required to
    seek any approval from the specified authority, as required
    under Section 148/151 of the Act for issuing a notice under
    Section 153C of the Act and can proceed to assess / reassess
    income for the concerned assessment years.

    61. The assumption that provisions of Section 153C of the
    Act precludes any proceeding under Section 147 of the Act by
    virtue of the non obstante clause, is unpersuasive. The scheme
    of Sections 153C of the Act indicates that the said provision
    was enacted to simplify the procedure, while maintaining the
    necessary safeguards, for assessment / reassessment in cases
    where assets belonging to the assessee or books of account or
    documents, which contain information pertaining to the
    assessee are found pursuant to a search conducted under
    Section 132 of the Act or requisition made under Section 132A
    of the Act, in respect of a person other than the assessee. This
    is subject to the same having a bearing on the determination
    of income of the assessee. The AO is neither require to record
    reasons for his belief that the income of the assessee for the
    concerned assessment year has escaped assessment nor does
    he require to seek further approvals as required under Section
    148
    of the Act. However, he must be satisfied that the assets
    seized or requisitioned or the documents, books of account

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    or other material transmitted by the AO of the searched
    person belongs to or contains information, which has a
    bearing on the determination of the income of the assessee.
    The reassessment must be predicated on material held to be
    incriminating and the income assessed / reassessed must be
    relatable to the material found as held by this Court in Kabul
    Chawla and affirmed by the Supreme Court in Abhisar
    Buildwell (P) Ltd.
    (supra).‖

    86. It is stated that therefore, once the search assessment regime was
    subsumed by Sections 147 and 148 of the Act reopening provisions (instead
    of the erstwhile Section 153A), w.e.f. 01.04.2021, the deeming fiction was
    specifically provided to ensure smooth implementation of search
    assessments without the need of furnishing or providing reasons to reopen
    by way of information suggesting escapement of income. He further stated
    that in the present petitions, the petitioner has neither challenged the
    initiation of search proceedings nor the vires of the deeming provisions (as
    the petitioner specifically waived its challenge to the vires of the
    deeming provisions). Therefore, the instant case is covered by the deeming
    fiction and there was no specific requirement for the Assessing Officer to
    furnish the reasons for reopening and thus there cannot now be a challenge
    to the reopening in an indirect manner under Section 149 (1) read with the
    fourth proviso to Section 153A that provides for an asset test for extending
    the period of limitation. Even so, the assessing officer shared the reasons
    as stated in the note sheet for internal approval for AY 2012-13, AY
    2013-14 and AY 2015-16 to AY 2018-19 with the assessee. Separately,
    AY 2014-15 was not reopened since no provisioning for customer claims or
    warranty claims was made by the assessee and hence a commensurate

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    amount was not receivable from the parent entity of the assessee in the said
    assessment year.

    87. Another submission of Mr. Rai is that the reasoning stated for
    meeting the asset test set out in the fourth proviso to Section 153A only
    needs to be preliminary and the asset test is to be met in aggregate over the
    relevant assessment years. He has relied upon the judgment of this Court in
    the case of Principal Commissioner of Income Tax v. Ojjus Medicare
    Private Ltd
    , 2024 SCC Online Del 4451 wherein it was held that the
    Assessing Officer at the stage of recording reasons for reopening assessment
    pursuant to a search has not had the opportunity to undertake an in depth
    examination of the evidence collected and hence the view formed at that
    stage for the purposes of fourth proviso to Section 153A only needs to be
    provisional and it was enough if the material was indicative of potential
    escapement of income. It was further held that the Rs. 50 lakh asset test was
    not to be viewed as being the qualifying criteria for each “relevant
    assessment year” and the test was met if the test was met in aggregate or
    cumulatively.
    He has also referred to the judgment in Ankit Gaur v. Income
    Tax Officer, WP(C
    ) 472/2023 dated 25.07.2024, which followed Ojjus
    Medicare Private Ltd.
    (Supra) and held that the Rs. 50 lakh test in the
    fourth proviso to Section 153A is merely a trigger and hence provisional in
    nature.

    88. According to him, in the present case, the six to ten year period from
    the end of the relevant assessment year of search would include AY 2016-17
    to AY 2013-14. Further, as the reasons recorded for AY 2016-17 also
    include reasons for AY 2013-14 in addition to the independent finding in
    AY 2013-14 of escapement of income in the nature of assets (receivables

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    towards customer claims), the preliminary trigger on a cumulative and
    independent basis for the relevant assessment years in aggregate is met.

    89. It has been submitted that so long as reasons exist, recording in a
    different format, i.e. elaborating reasons for AY 2013-14 in the reasons
    recorded for AY 2016-17, does not vitiate the reassessment. In cases of
    search there is a deeming of reasons for escapement of income to reopen the
    past years and the procedure prescribed in Section 148A of the Act for
    issuance of notice along with reasons is not applicable to reopenings
    pursuant to a search. In such cases, where the Assessing Officer is sharing
    the internally recorded reasons with the assessee, there is no prescribed
    format, structure, or year-wise manner in which such reasons are required to
    be recorded. Reliance in this regard is placed on the judgment of the
    Supreme Court in CIT v. Calcutta Knitwears, (2014) 6 SCC 444, wherein,
    in the context of post-search assessments under the erstwhile regime, the
    Court has categorically held that while recording of satisfaction is
    mandatory, the statute does not impose any restriction as to the stage,
    manner, or form in which such satisfaction is to be recorded, so long as it
    exists and is discernible from the record. Accordingly, once reasons and
    satisfaction exist, mere variation in the manner or format of recording
    cannot invalidate the proceedings. He stated that in fact, in the case of Super
    Malls (P.)
    Ltd. v. PCIT, [2020] 115 taxmann.com 105 similar objections
    were raised by the assessee therein with respect to the recording of the
    satisfaction in the case of Section 153C by the Assessing Officer of the
    searched person. Rejecting such technical objections, the Supreme Court
    held that once substantive satisfaction is evident, procedural and actions
    taken for administrative convenience cannot vitiate entire reassessment

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    proceedings. This principle squarely applies to the present case, inasmuch as
    elaboration of the reasons for AY 2013-14 while recording the reasons for
    AY 2016-17, based on the same material, does not amount to absence of
    reasons for any assessment year and is only a matter of administrative or
    procedural exigency. Reliance in this regard is also placed on the judgment
    of the Supreme Court in Dhanjibhai Ramjibhai v. State of Gujarat, (1965)
    2 SCC 5 and this Court in Indian National Congress v. DCIT, W.P.(C)
    4264/2024 dated 22.03.2024.

    90. It is also stated that for the reasons recorded in AYs 2013-14 and
    2015-16 while doubt has been casted on the allowability of expense claimed
    on account of provisioning especially whether such estimation is accurate,
    apart from the doubt on the allowability of expenses, clear reasoning has
    been noted with respect to the existence of a right to reimbursement and
    hence a receivable and escapement of income. Even assuming that the
    reasoning doubting the expense allowability was to be decided against the
    Revenue, as long as the reasoning i.e., preliminary view with respect to
    receivables is upheld in favour of the Revenue, the reopening would be
    permissible. In this regard, reliance is placed on Srikrishna Private Lt. &
    Ors. v. I.T.O Calcutta & Ors., (1996) 9 SCC 534, wherein the Supreme
    Court reiterated the settled law that when the notice can be upheld on even a
    single ground, the entire reopening is to be upheld. There is a clear
    preliminary factual finding that the assets in the form of receivables were
    not disclosed by the assessee that resulted in the escapement of income. If
    the receivables were reflected, they would be taken as income especially
    since the assessee has claimed expenses on account of provisioning, and

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    hence the assessee is attempting to reduce its taxable income by claiming
    expenses despite having corresponding right to recover the reimbursements.

    91. It is also his case that the asset test is in fact met, as the receivables
    amount to asset for the purposes of the fourth proviso to Section 153A.
    Explanation 2 to Section 153A reads as under:

    ―Explanation 2.– For the purposes of the fourth proviso, ―asset‖
    shall include immovable property being land or building or both,
    shares and securities, loans and advances, deposits in bank
    account.‖

    92. Mr. Rai has stated that as can be seen from the above, the definition
    of asset is broad and inclusive and not exhaustive. Even ejusdem generis, it
    can be seen that receivables are covered by the definition since loans are
    specifically mentioned as an asset, which is nothing but a right to recover
    money. Similarly, in the present case, the right to recover reimbursement
    towards warranty claims or customer claims i.e. receivables, is as asset. The
    evidence of existence of such right to recover clearly comes out from the
    FAR Analysis set out in the Transfer Pricing Report prepared by the
    assessee itself and is further supported by clauses in the Distribution
    Agreement.

    93. It is his submission that if the legislature wanted to provide a
    narrower definition of asset, it would have done so by providing an
    exhaustive class of the same. To buttress this argument, he has also referred
    to the definition of asset contained in Section 281 of the Act.

    ―281. Certain transfers to be void.

    (2) ……..

    Explanation.–In this section, ―assets‖ mean land, building,
    machinery, plant, shares, securities and fixed deposits in banks, to

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    the extent to which any of the assets aforesaid does not form part
    of the stock-in-trade of the business of the assessee.‖

    94. That apart, it is also his case that the sample of the balance sheet as
    set out in Schedule III of the Companies Act, 2013 (Item 2) clearly reflects
    trade receivables as an asset. Reference is also made to the judgment in the
    case of M.J. Exports (P.) Ltd. v. Joint Commissioner of Income-tax,
    [2025] 176 taxmann.com 342 (Bombay) wherein the Bombay High Court,
    while referring to the judgment of the Supreme Court in CIT v. HCL
    Comnet Systems & Services Ltd.
    , [2008] 174 Taxman 118, to hold that a
    debt receivable is an asset.

    95. Mr. Rai has vehemently contested that applicability of the judgment
    in Smart Chip Private Ltd (supra) to the facts of the present case, since in
    that case
    there was no allegation of income escaping assessment in the form
    of an asset by the Revenue. It was on this basis that this Court held that the
    test set out in the fourth proviso to Section 153A was not met. Relevant part
    of the judgment as relied upon by Mr. Rai is reproduced below:

    ―17. It is clear from the above that there is no allegation that the
    income which has escaped assessment was represented in the form
    of an asset. Therefore, the conditions as stipulated in Clause (a) of
    the fourth proviso to Section 153A(1) of the Act are not satisfied.
    The AO does not have the possession any books of account, other
    documents or evidence, which reveals that the petitioner’s income
    that is represented in the form of an asset has escaped
    assessment.‖

    96. It has been further submitted that the assessee has not placed on
    record the Distribution Agreement or any other document to demonstrate
    that there was no clause providing for reimbursement. In the absence of any
    such supporting document, the assertion that no reimbursement arrangement

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    existed is unsupported by evidence. As against this, there is a factual finding
    by the Assessing Officer in the reasons recorded that such a clause existed in
    the Distribution Agreement. In any case, in addition to the reimbursement
    clauses in the Distribution Agreement unearthed during the search, the
    Assessing Officer has also relied upon the FAR Analysis prepared by the
    assessee to reflect that the assessee was indemnified fully by its foreign
    parent. Therefore, there is enough evidence for the Assessing Officer to
    form a preliminary view to reopen assessment pursuant to the search. He has
    also challenged the submission on behalf of the petitioner that the Revenue
    could not show the receivables as assets from the balance sheet of the
    assessee, by stating that the balance sheet is prepared by the assessee itself
    and it ought to have reflected the receivables on the asset side when it has a
    right to receive the amounts from its foreign parent. The whole intent of the
    search is to uncover and unearth what has not been duly disclosed by the
    assessee reflecting escapement of income. It was during the search that the
    Revenue came across the arrangement of back to back reimbursement i.e.
    receivables between the assessee and its Associated Enterprise on coming
    across the clauses of the Distribution Agreement and the FAR Analysis
    stated in the Transfer Pricing Report.

    97. It is his submission that the present case is pursuant to a search, and
    since the statute provides for deeming of reasons to reopen to past years, the
    reopening should be upheld on this aspect alone. Further, the petitioner has
    waived its challenge to the vires of the deeming provisions. Despite the
    deeming provisions, the note sheet reflects sufficient reasons based on the
    evidence unearthed during the search, resulting in formation of preliminary

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    view of escapement of income represented in the form of an asset i.e.
    receivables.

    98. He has prayed the petitions be dismissed.

    REJOINDER ON BEHALF OF THE PETITIONER

    99. In rejoinder to the submissions on behalf of the Revenue, the learned
    Senior Counsel for the petitioners stated that the reliance placed by the
    Revenue on the reasons recorded for reopening assessment for AY 2016- 17,
    to justify the reopening of assessment for AY 2013-14 is erroneous
    inasmuch as, incriminating material has to be seen qua each assessment
    year. It is a well-settled principle of law that each assessment year is a
    separate and independent year and for the purpose of reopening an
    assessment, incriminating material pertaining specifically to the relevant
    assessment year must be identified. In this regard, they have referred to the
    judgments in Commissioner of Income Tax v. Sinhgad Technical
    Education Society
    , [2017] 84 taxmann.com 290 (Para 18-22), Principal
    Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P
    .)
    Ltd.
    [2023] 454 ITR 212 (SC) (Para 12-14) and Saksham Commodities Ltd. v.
    Income Tax Officer, [2024] 464 ITR 1 (Del.).

    100. They have also sought to controvert the stand of the Revenue that the
    reassessment proceedings for AY 2013-14 do not get vitiated merely for
    absence of reasons especially when elaborate reasons are recorded in AY
    2016-17. Under Section 153A of the Act, recording of reasons for initiation
    of reassessment proceeding is mandatory and cannot be bypassed. They
    contended that the reliance placed on CIT v. Calcutta Knitwear, [2014] 362
    ITR 673 (SC) is completely erroneous as it is confined to the recording of

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    satisfaction in the case of a third person arising out of search proceedings
    and only holds that such satisfaction may be recorded even after completion
    of assessment of the searched person. The ratio of the said decision has no
    application whatsoever to reassessment proceedings initiated against a
    searched person. It is submitted that the proceedings under Section 153A in
    the case of a searched person stand on a completely different footing and
    cannot be equated with proceedings initiated against a non-searched person,
    as sought to be done by the respondents. The reliance placed by Mr. Rai on
    Super Malls (P.) Ltd. vs. PCIT, 8 New Delhi [2020] 423 ITR 281 (SC)[05-
    03-2020] is also contested as incorrect inasmuch as, this judgment was
    rendered in the context of Section 153C of the Act where satisfaction notes
    are recorded by the Assessing Officer of the searched person and the
    Assessing Officer of the non-searched person, both in case of reassessment
    initiated under Section 153A of the Act, where recording of reason by the
    Assessing Officer before assuming jurisdiction is mandatory.
    They also
    stated that the submission of the respondent by relying upon the judgment in
    Indian National Congress v. Deputy Commissioner of Income-tax, [2024]
    463 ITR 431 (Delhi), that where the proceedings for multiple years have
    arisen from a common search, a composite or common reading of
    satisfaction note does not vitiate the jurisdiction is based on a complete
    misreading of the judgment. According to the learned Senior Counsel for the
    petitioner, the aforesaid judgment clearly holds that a composite satisfaction
    note would suffice the requirement of Section 153C, provided, it embodies
    details of material gathered in the course of search and pertaining to AYs
    forming part of the block as whole. Thus, the ratio lays down that the
    incriminating material qua each year has to be seen and not a common

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    satisfaction note. In the present case there is no incriminating materials
    pertaining to both AY 2013-14 and AY 2016-17. If the interpretation
    adopted by the respondents is assumed to be correct, it will lead to
    reopening of 10 years in a block without there being any specific
    incriminating material qua each year, which will lead to an anomalous
    situation.

    101. In any case, the reasons for reopening for AY 2016-17 were recorded
    a year back i.e., in 2023, and the reassessment notice under Section 148 for
    the said year was issued on 31.03.2023, whereas, for AY 2013-14, the
    reasons were recorded on 31.03.2024 and the reassessment notice was also
    issued on 31.03.2024. Therefore, the respondent cannot rely upon reasons
    recorded for a different AY in the past to justify the reopening done on a
    subsequent date for a different AY, which is clearly an after-thought as
    reasons much less, any incriminating reasons does not exist for reopening of
    assessment for AY 2013-14.

    102. Mr. Datar and Mr. Gulati also contest the submission of the Mr. Rai
    that even if one reason from the various reasons survives, the reopening
    should be upheld. In the case at hand, neither the liability of expenses on
    account of provision for customer claim/warranty expenses nor the right to
    receivables as claimed by the respondent satisfies the requirement of the
    fourth proviso to Section 153A of the Act. Firstly, there is no receivable at
    all as there is no contractual provision which requires the associated
    overseas entity to pay these amounts to the petitioner for the relevant
    assessment year. Further, a receivable does not constitute an asset as per the
    explanation to Section 153A in as much as, the definition of the asset is
    provided under fourth proviso to Section 153A of the Act. The principle of

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    ejusdem generis cannot be applied to read „receivable‟ in the definition of
    asset, as the aforesaid principle of statutory interpretation is applied to
    interpret where general words are followed by a specific class of words. An
    expense claim or a provision which is „receivable‟ cannot be equated with
    „land or buildings‟, „shares and securities‟, „loans and advances‟, or
    „deposits in bank account‟. They have stated that the judgment in M.J.
    Exports (P.) Ltd. v. Joint Commissioner of Income-tax [2025] 176
    taxmann.com 342 (Bombay) referred to by the Revenue in support of their
    argument that a debt receivable constitutes an asset, has no application to the
    instant matter. In that case, provisions for doubtful debts and advances were
    created in circumstances where there existed a real and subsisting possibility
    of recovery. This is clearly distinguishable from the present case, where no
    receivable was in existence at all. Further, they submitted that the case of the
    petitioner is covered by the judgment of this Court in Smart Chip Private
    Ltd
    (supra).

    103. Mr. Datar has also submitted that the reliance placed by the Revenue
    on the Transfer Pricing Study for AY 2015-16, the Distribution Agreement
    and the draft assessment order of AY 2015-16 is erroneous. It is stated that
    the Agreement dated 01.04.2010 was the only agreement in force during the
    relevant period viz. in AY 2015-16, and the same does not contain any
    clause providing for reimbursement of expenses incurred on account of
    provision of warranty expenses. Despite placing reliance on an alleged
    reimbursement clause, the respondents failed to bring the said Distribution
    Agreement on record. For this reason, the petitioner has placed the said
    Agreement dated 01.04.2010 on record along with its written rejoinder
    submissions. According to him, a perusal of the same demonstrates the

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    absence of any such clause relating to reimbursement of provision of
    warranty expenses. He stated that the Transfer Pricing Study Report for AY
    2015-16 was never placed before this Court during the hearing but was only
    produced along with the written submissions of the respondents. Transfer
    Pricing Study is part of the statutory filing under the Act and was all along
    available to the respondents and thus, cannot be an incriminating material
    allegedly found during the course of the search. Further, in any case, the
    Transfer Pricing Study clearly records that the petitioner shall be entitled to
    claim damages from the Associated Enterprise to the extent agreed between
    them. In the present case, there is no material on record to demonstrate that
    any such damages were ever agreed to be recovered. In fact, as stated
    hereinabove, the applicable Distribution Agreement expressly provides
    otherwise. Lastly, the Transfer Pricing Study merely refers to the warranty
    risk being that of the overseas Associated Enterprise. Once the margin is
    deduced on the basis of Transaction Net Margin Method and identification
    of comparable companies bearing similar risk profile, all the risks are
    already considered and no further addition can be made because all the
    eligible items of expenditure and all the amounts includible as income are
    already taken into account while determining the Arms‟ Length Price and
    the net margin, and there is no requirement to recover each and every risk
    borne by the Associated Enterprises.

    104. He has opposed the submission of the Revenue that the draft
    assessment order passed for AY 2015-16 reflects that amounts were
    recovered by the petitioner on account of reimbursement of customer claims.
    Firstly, no such material is referred in the reasons and neither is this the
    reason stated for reopening. Secondly, the reimbursement does not relate to

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    AY 2013-14. Thirdly, mere reimbursement and that too, for another year,
    cannot be considered as an „asset‟ for reopening assessment. Further it is bad
    in law to rely on a draft assessment order for AY 2015-16 which did not
    exist at all when the impugned notice for AY 2013-14 was issued, so as to
    justify the re-opening for AY 2013-14. Fourth, once a provision is created, it
    can either be utilised or written back. If it is written back, there is no
    requirement of reimbursement as it would be automatically credited to the
    profit and loss account as well as increase taxable profits. Therefore, in any
    case it is untenable to request immediate back to back reimbursement once
    the provision is made. Even otherwise, under the Transaction Net Margin
    Method, there is no requirement to recover each and every risk borne by the
    Associated Enterprises, so long as the Arm‟s Length Price can be achieved.
    Further. The Transfer Pricing Study of AY 2015-16, produced by the
    respondents, also clearly records that the petitioner shall be entitled to claim
    damages from the Associated Enterprise only to the extent agreed between
    them. Therefore, the reopening of assessment for AY 2013-14 cannot be
    justified.

    105. It is the submission of the learned Senior Counsel for the petitioner
    that there is no allegation or finding in the draft assessment order that the
    said amount should be treated as income represented in the form of an asset.
    The said allegation is merely a weak attempt to satisfy the condition of
    Section 153A of the Act. They reiterated that the respondent has taken an
    inconsistent stand for AY 2013-14 and AY 2015-16 by considering the issue
    as „asset‟ whereas for the subsequent years, same issue has been considered
    as entries in the books of account. The inconsistent stand has been taken
    only to invoke the condition prescribed in Section 153A of the Act.

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    SUR-REJOINDER ON BEHALF OF THE RESPONDENTS

    106. Mr. Rai, learned Senior Standing Counsel raised an objection that the
    Distribution Agreement dated 01.04.2010 which has been filed by the
    petitioner along with its rejoinder was neither relied upon during the
    arguments nor placed on record earlier. His objections on the Agreement
    are:

    (i) The Distribution Agreement dated 01.04.2010 was not in force
    during the previous year relevant to AY 2015-16 because as per
    Section 9.1 of Article IX of the Agreement, it was to be in
    effect for a period of 2 years, extendable to another 12 months,
    i.e., until 31.03.2013 at best.

    (ii) The respondents had relied on the Distribution Agreement
    which was found during the search proceedings.

    (iii) The Distribution Agreement of 2010 was not relied upon in the
    Writ Petitions and therefore, reliance on the same is completely
    misplaced.

    107. He submitted that notwithstanding the above, a plain and holistic
    reading of the Distribution Agreement dated 01.04.2010 clearly
    demonstrates that the foreign Associated Enterprise has undertaken to
    indemnify and hold harmless the Indian entity against any loss, cost, or
    expense arising from non-performance, product defects, or product-related
    issues. The Agreement expressly delineates the allocation of responsibilities
    and risks between the parties. Clause 3.2(b) of the Distribution Agreement
    unequivocally provides that Associated Enterprise shall assume risks
    relating to product quality, order processing errors, mistakes in

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    communication of product specifications, and other product-related matters,
    insofar as such risks are not attributable to the petitioner. Further, the
    indemnity obligation (Article VII of the Distribution Agreement dated
    01.04.2010) is couched in wide and comprehensive terms, and when read in
    its commercial context, necessarily encompasses warranty obligations,
    customer claims, liquidated damages, and losses arising from manufacturing
    or product defects. Consequently, when Clause 3.2(b) is read in conjunction
    with the indemnity obligation under Article VII, it is evident that although
    petitioner may initially discharge such claims vis-à-vis customers in India,
    the financial burden of such payments is contractually borne by the foreign
    Associated Enterprise. Consequently, any amount paid by the Indian entity
    towards such claims gives rise to a corresponding right of recovery, which
    constitutes a receivable and therefore an asset under Act. He has drawn our
    attention to the Clauses III and VII of the Distribution Agreement dated
    01.04.2010.

    108. Mr. Rai reiterated that the petitioner has always been a limited-risk
    distributor of the overseas Associated Enterprise. This is evident from the
    FAR Analysis contained in the Transfer Pricing Study prepared by the
    petitioner itself. Merely because the clauses in the earlier agreement are less
    elaborately worded, and subsequent agreements may articulate the same
    rights and obligations in more expressive terms, does not alter the
    substantive nature of the arrangement between the petitioner and the
    Associated Enterprise. The legal character of the transaction is determined
    by its economic substance and not by variation in clauses of a contract. The
    petitioner cannot, on the one hand, claim limited-risk status for transfer

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    pricing purposes and on the other, deny the corresponding right of recovery
    when such risks arise for contractual purposes.

    109. It is a settled principle of income-tax law that contractual
    arrangements are required to be examined having regard to their real nature,
    commercial substance and economic effect, and not merely on the basis of
    the form or drafting of individual clauses. The true character of a transaction
    must be determined on the basis of its substance rather than its form,
    particularly where the issue concerns the allocation of risks and financial
    burden. It is submitted that the existence of a receivable in respect of
    warranty and customer claims is borne out from two independent and
    consistent pieces of evidence. The FAR Analysis contained in the Transfer
    Pricing Study prepared by the petitioner itself clearly establishes that
    product quality and warranty-related risks are not borne by the Indian entity
    but rest with the foreign Associated Enterprise. In any event, the
    Distribution Agreement confirms the same risk allocation through the
    warranty and indemnity clauses. Read together, these demonstrate that
    although the Indian entity may initially discharge such claims vis-à-vis
    customers in India, the economic burden thereof is borne by the foreign
    Associated Enterprise, giving rise to a corresponding right of recovery. Even
    independently, the FAR Analysis itself is sufficient to establish the existence
    of such a recoverable right and along with the Distribution Agreement, the
    factum of receivables gets even more fortified.

    110. Contesting he submission of the learned Senior Counsel for the
    petitioner, he stated that the respondents are not seeking to justify the
    reopening the assessment of AY 2013-14 on the basis of reasons recorded
    for AY 2016-17. Separate reasons have been duly recorded for AY 2013-14,

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    founded on incriminating material emanating from the search. Where
    material found during a search evidences a continuing transaction or
    arrangement giving rise to recurring tax consequences across multiple years,
    such material is relevant and applicable to each of those assessment years.
    The reasons recorded for AY 2016-17 clearly show that the incriminating
    material unearthed during the search revealed the reimbursement of
    customer claims quantified at Rs.12,86,11,894 pertaining to AY 2013-14.
    What the statute requires is the existence of such material to the year sought
    to be reopened, and not the timing or manner in which such material is first
    recorded or articulated. He has contested the applicability of the judgments
    in Sinhgad Technical Education Society (supra) and Saksham
    Commodities Ltd.
    (supra) by stating that the judgments only require that
    there must exist some incriminating material related to the relevant
    assessment year. In the present case, such requirements are satisfied.

    111. He submitted that jurisdiction of the respondents does not fail merely
    because the incriminating material emanating from a common search is
    elaborately analysed in the satisfaction note prepared and recorded in AY
    2016-17. The jurisdictional requirement is the existence and applicability of
    incriminating material to the relevant assessment year, not the manner and
    form in which it is recorded.

    112. Mr. Rai has further stated that the attempt of the petitioner to
    distinguish Calcutta Knitwear (supra) and Super Malls (P.)
    Ltd. (supra) by
    drawing a rigid distinction between searched and non-searched persons by
    stating that these cases pertain to Section 153C and not Section 153A of the
    Act, is misconceived.
    The petitioner is blowing hot and cold, as while
    seeking to discard these judgments on the ground that they arise under

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    Section 153C, the petitioner simultaneously places reliance on Sinhgad
    Technical Education Society
    (supra) and Saksham Commodities Ltd.
    (Supra),which are themselves rendered in the context of Section 153C and
    not Section 153A. The principle flowing from Calcutta Knitwears (supra)
    and Super Malls (supra) is not confined to Section 153C alone, but is of
    general application to search-related provisions, namely that the substance
    of satisfaction prevails over its form, timing or manner of recording, so long
    as satisfaction based on incriminating material exists. While he is not
    equating proceedings against searched and non-searched persons; reliance is
    placed on these 4 judgments only for the settled proposition that jurisdiction
    is not vitiated merely because satisfaction is recorded in a particular manner
    or at a particular point of time.

    113. It is also averred that the reasons recorded for AY 2016-17 merely
    capture the incriminating material emanating from the common search in
    detail, qua the relevant assessment years. The same material existed and was
    duly applied while recording reasons for AY 2013-14. Reference to common
    search material does not amount to bypassing the statutory requirement of
    recording reasons, nor does it result in borrowing of reasons from another
    year. This position is settled in Indian National Congress (supra) wherein it
    was held that where proceedings arise from a common search, a composite
    or common satisfaction is not impermissible, provided the material gathered
    in the course of search has relevance to the assessment years sought to be
    reopened. In other words, the case of the Revenue is that the incriminating
    material evidencing a continuing contractual and functional arrangement
    existed and was relevant to AYs 2013-14 and 2015-16.

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    114. According to Mr. Rai, the apprehension expressed by the petitioner
    that the interpretation of the Revenue would lead to the reopening of
    multiple years without year-specific incriminating material is wholly
    unfounded. The present case does not rest on a mere “block reopening”, but
    on incriminating material emanating from a search which evidences a
    continuing arrangement giving rise to recurring tax consequences across
    years. The law does not require such material to be rediscovered or
    rearticulated repeatedly for each year; rather, it requires that the material
    exists and bears a live nexus to the year sought to be reopened, which
    condition stands fully satisfied in the present case. The reopening flows
    from the same search, the same material, and the same continuing
    contractual and functional arrangement giving rise to recurring warranty and
    customer-claim obligations.

    115. He has vehemently contested the submission of Mr. Datar and Mr.
    Gulati that a receivable is not an “asset” within the meaning of the fourth
    proviso to Section 153A of the Act, by stating that the definition of “asset”
    under the said proviso is inclusive and illustrative, and therefore cannot be
    read in a restrictive or exhaustive manner. Once the definition is inclusive,
    there is no requirement to invoke the principle of ejusdem generis at all. A
    receivable, being a legally enforceable right to recover money, squarely falls
    within the ordinary, commercial and legal meaning of an asset and cannot be
    excluded merely because it is not expressly enumerated. Even otherwise, if
    the principle of ejusdem generis is applied, the same operates in favour of
    the Revenue. Loans are expressly included within the definition of “asset”,
    and a loan is nothing but a right to recover money. A receivable is of the

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    same genus and character. Accordingly, even on an ejusdem generis
    construction, the issue of receivables stands squarely covered.

    116. He submitted that attempt of the petitioner to equate a receivable with
    a mere “expense claim” or “provision” fundamentally disregards settled
    principles of tax jurisprudence and basic accounting concepts. A receivable
    is an accrued and enforceable right, whereas a provision is contingent and
    notional. This position is not only recognised under the Companies Act,
    2013
    and settled accounting principles, which treat receivables as assets
    (Schedule III of the Companies Act, 2013), but has also been judicially
    affirmed in CIT v. HCL Comnet Systems & Services Ltd., [2008] 174
    Taxman 118, followed in M.J. Exports (P.)
    Ltd. (supra) which recognises
    that a right to receive money constitutes an asset for the purposes of the Act.
    If the stand of the petitioner is accepted, it would artificially narrow an
    inclusive statutory definition, which should not be permitted.

    117. He has contended that the draft assessment order is not relied upon to
    substitute, supplement or retrospectively validate the reasons. The reasons
    recorded stand independently and form the sole basis of jurisdiction. The
    draft assessment order has been referred to only for two limited purposes:

    firstly, to demonstrate that the contention of the petitioner that that no
    amount was ever reimbursed/recovered is factually incorrect; and secondly,
    to respond to a specific query of this Court as to whether additions were
    proposed in respect of warranty or customer claims.

    118. Contesting the stand of the petitioner, he stated that whether
    reimbursement was actually received and whether margins under the
    Transaction Net Margin Method already factor in the risks, pertain purely to
    the merits of the reassessment and are wholly irrelevant for examining the

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    validity of jurisdiction to reopen the assessment. The existence of an asset
    for jurisdictional purposes is not contingent upon its disclosure in the
    balance sheet. On the contrary, the very object of search and reassessment
    proceedings is to bring to tax income and assets which have not been
    disclosed in the books of account.

    119. It is his case that the judgment of this Court in the case of Smart Chip
    Private Ltd.
    (Supra) is distinguishable since in the said case there was no
    issue with regard to existence of an asset, whereas in the present case, there
    is clear preliminary reasoning in both AY 15-16 and AY 13-14 of there
    being an asset in the form of receivables.

    120. He submitted that the issues raised by the petitioner are inherently
    factual and lie beyond the scope of writ jurisdiction, particularly at the stage
    of examining the validity of notice under Section 148 of the Act, which is
    clearly impermissible in the light of judgments of this Court in Principal
    Commissioner of Income Tax v. Ojjus Medicare Private Ltd.
    , 2024 SCC
    Online Del 4451 and Ankit Gaur v. Income Tax Officer (Judgment dated
    25.07.2024 in WP(C) 472/2023).

    REBUTTAL ON BEHALF OF THE PETITIONER

    121. In rebuttal to the rejoinder submissions of Mr. Rai, it is reiterated on
    behalf of the petitioner that the challenge to the reopening of the
    reassessment was required to be decided only on the basis of the reasons
    recorded by the respondents at the time of issuance of the impugned notices
    and the documents relied upon in such reasons. The subsequent draft
    assessment order issued for AY 2015-16 has no bearing whatsoever on the

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    issue of reopening of the assessment which has to be decided at the
    threshold.

    122. With regard to AY 2013-14, it is submitted that reasons recorded for
    AY 2013-14 does not meet the test of „asset‟ as prescribed under fourth
    proviso to Section 153A of the Act, inasmuch as the sole basis for reopening
    of assessment is the alleged expense of Rs. 212,86,11,894/- on account of
    provision for customer claim. There is no incriminating material which has
    been referred in the impugned reasons and the disallowance of „provision for
    customer claim‟ cannot be made the basis for reopening for the following
    reasons:

    a. Exact same amount was disallowed by the Respondent at the time
    of scrutiny proceeding and the above addition was deleted by the
    Tribunal.

    b. There is no right with regard to receivables and neither such a basis
    is provided in the Impugned Reasons.

    123. Even though separate reasons have been recorded by the Revenue for
    AY 2013- 14, there is no incriminating material which is present justifying
    the reopening of assessment. The Revenue cannot rely upon the reasons
    recorded for AY 2016-17 to reopen the assessment for AY 2013-14. In any
    event, even the reasons for AY 2016-17 do not justify reopening of
    assessment for AY 2013-14. If any tangible material existed satisfying the
    jurisdictional precondition under Section 148 of the Act, the same ought to
    have been recorded particularly in a situation where the reasons for AY
    2013-14 was recorded at a later point in time.

    124. The expenses on account of customer claims which were initially
    disallowed in the regular assessment, and later allowed by the Tribunal for

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    AY 2013-14, were the sole liability of the petitioner. There was no case of
    the respondents at the time of regular assessment that any amount was
    receivable from the Associated Enterprise. It is stated that this argument is
    merely a change of opinion to justify re-opening of assessment and to find
    an asset where there exists none. Even otherwise, the amount of customer
    claims was never receivable, and as such there is no question of referring to
    that amount as an asset.

    125. It is also submitted that the respondent‟s reliance on Calcutta
    Knitwear
    (Supra) and Super Malls (P.)
    Ltd. (Supra) is misleading as the
    ratio of these judgments cannot be applied mechanically without there being
    any incriminating material in the present relevant year. The present
    assessment being made under Section 147 of the Act is akin to search
    assessment under Section 153A (under the erstwhile provisions) and not
    under Section 153C of the Act. There is no separate satisfaction note which
    is to be prepared under Section 153A and therefore, the ratio of those
    judgments have no application whatsoever to the facts of the present case.
    Subsequent to the search, separate reasons have been recorded for AY 2013-

    14. Once such reasons have been recorded separately for each year, the
    question of referring to any material does not arise. In any event, there is no
    incriminating material found as a consequence of the search, which has been
    referred to which justifies reopening of assessments.

    126. It is also averred that the respondents have failed to rebut the
    submission of the petitioner that an inconsistent stand has been taken by the
    Revenue inasmuch as „provision of customer claims‟ are being termed as
    „asset‟ for AY 2013-14 and as „entries in the books of account‟ for AY
    2016-17.

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    127. Insofar as AY 2015-16 is concerned, the following points have been
    advanced:

    a. In the impugned reasons for AY 2015-16, a reference has been made
    to a purported Distribution Agreement which purportedly states that the
    expenditure incurred by the petitioner on account of warranty is
    required to be borne by the supplier viz. Associated Enterprise. Such a
    clause did not exist in the Agreement prevalent during AY 2015-16 and
    this assumption (drawn only in AY 2015-16 and not in AY 2013-14)
    was based on a subsequent Agreement which was not in existence
    during the relevant assessment years, as specifically pointed out during
    the course of hearing.

    b. The respondents, without disputing the above position during the
    course of the hearing, have in their post-hearing written submissions,
    reiterated the existence of the said Agreement to support their illegal
    reasons. However they have failed to point out any specific clause
    relating to reimbursement of warranty expenses in the Distribution
    Agreement which was applicable to AY 2015-16. This is the reason
    why though a statement was made in the oral arguments, the relevant
    Distribution Agreement was not produced by the respondents. Once the
    petitioner placed on record the relevant Distribution Agreement which
    discloses that there is no such clause in relation to reimbursement of
    warranty expenses, the respondents have altered their stand and have
    adopted a new argument by referring to a general indemnity clause
    which has no application to the issue. Such an indemnity clause was
    not even referred to in the reasons recorded for AY 2015-16 and is a

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    fresh attempt to justify reopening of assessment for AY 2015-16 which
    goes beyond the reasons recorded.

    128. It is submitted that the stand of the Revenue in their rejoinder
    submissions that the said Distribution Agreement dated 01.04.2010 was not
    in existence during the relevant AY 2015-16 is completely misconceived
    inasmuch as, a bare perusal of the Clause 9.1 of the said Agreement
    establishes that the Agreement is automatically renewed unless a notice is
    provided by any of the parties. Thus, the Agreement dated 01.04.2010 was
    the only Distribution Agreement in force during the relevant AY 2015-16
    and was only substituted by a later Agreement w.e.f. 01.01.2017 which is
    after AY 2015-16. It is thus clear that the respondents were basing their
    entire case on an incorrect agreement which had no application on AY 2015-
    16 and the reassessment ought to be quashed on this short ground alone.

    129. Further, the respondents in their written submission dated 15.01.2026
    claim that the Agreement dated 01.04.2010, which is the only applicable
    Distribution Agreement prevalent during AY 2015-16, is not applicable to
    that year. This implies that the Agreement dated 01.04.2010 was not referred
    by the respondents at the time of recording of reasons for re-opening.
    Therefore, any interpretation of the Agreement dated 01.04.2010 now
    cannot support the re-opening of assessment for AY 2015-16 because the
    same has to be decided at the threshold.

    130. Further, it is submitted that the reliance placed by the respondents on
    the „indemnity‟ clause and „responsibility‟ clause to support its contention
    that the petitioner had a right to recover expenses borne out by it on account
    of customer claims and warranty obligation is a mere assumption. Firstly, it
    is evident that at least insofar as the conclusion in the impugned reasons that

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    the Associated Enterprise is bearing the expenditure incurred on account of
    warranty and obligation of reimbursement is now admittedly incorrect. The
    attempt to now interpret the general indemnity clause and responsibility
    clause is clearly not supported by reasons and ought to be rejected on this
    ground alone. Secondly, the provision of expenses relating to warranty by
    the petitioner cannot be extended on account of the said general indemnity
    clause and responsibility clause. The general indemnity clause is with
    respect to non-performance of the product supplied and cannot be stretched
    to include provisions created by the petitioner based on scientific data. The
    responsibility clause also cannot support the alleged reimbursement. Lastly,
    such an expansion of the indemnity clause and responsibility clause will in
    fact be beyond the contractual scheme inasmuch as, if that is the position, all
    expenses incurred in the regular course of business would also become
    recoverable, which would never be the intention of the Distribution
    Agreement of the specified product imported by the petitioner.

    131. It has been further averred that the respondents‟ attempt to equate a
    limited-risk distributor with an unconditional right of reimbursement is
    misconceived, as limited risk does not mandate recovery of every
    commercial cost from the Associated Enterprise. In the present case, the
    reliance of the respondents on the FAR Analysis in the Transfer Pricing
    Study is completely irrelevant as the petitioner is remunerated at Arm‟s
    Length Price under which all operational risks stand subsumed. Once the
    Arm‟s Length Price is computed and accepted in the original assessment
    proceedings, it has taken into account all the risks assumed by the petitioner
    and no further addition can be made by making reference to different
    obligations arising under Distribution Agreement as all such risks have

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    already been considered by computing the Arm‟s Length Price. In the
    absence of any contractual obligation requiring separate recovery of
    warranty-related expenses, the Respondent‟s contention is untenable.

    132. It is also submitted that the respondents themselves in paragraph 15 of
    their rejoinder have admitted that a receivable is an accrued and enforceable
    right, whereas a provision is contingent and notional. Therefore, in the
    absence of any enforceable right of recovery, the respondent cannot assume
    jurisdiction to reopen assessment.

    ANALYSIS AND CONCLUSION

    133. Having heard the learned counsel for the parties and perused the
    record, the primary issues which arise for consideration are the following:-

    a) Whether the notices under Section 148 of the Act issued by the
    respondents for AYs 2013-14 and 2015-16 are beyond limitation
    as there is no income in the nature of an asset escaping assessment.

    b) Whether the respondents are justified directing special audits of
    the accounts of the petitioner for AYs 2013-14 and 2015-16.

    134. The challenge mounted to the validity of Explanation 2 to Section 148
    of the Act, was waived off by the learned Senior Counsel for the petitioner
    during the course of the hearing and as such, we need not examine the same.

    REASSESSMENT

    135. At first we intend to deal with the first issue as noted above, i.e.,
    whether the impugned notices for AY 2013-14 and AY 2015-16 are barred
    by limitation inasmuch as they have been issued after the expiry of three
    years from the end of the relevant assessment years, without any evidence to
    show that income in the nature of assets has escaped assessment.

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    136. The submissions of Mr. Arvind Datar and Mr. Tarun Gulati on this
    aspect are summarised below:-

    1) The reasons provided by the Revenue in support of the impugned
    notices do not disclose any incriminating material indicating
    escapement of income represented in the form of an asset;

    2) There are no receivables due to the petitioner as alleged by the
    Revenue;

    3) There is no contractual agreement between the petitioner and the
    Associated Enterprise for reimbursement of the provisions for
    customer claims or warranty;

    4) The issue related to disallowance of provision for customer claims
    and warranty have been decided in favour of the petitioner by the
    Tribunal;

    5) Even if it is assumed that there are receivables due to the
    petitioner, they cannot construed to be assets as per Explanation 2
    to Section 153A of the Act;

    6) Any unutilised provision for customer claims or warranty will be
    written back and credited to the profit and loss account of the
    petitioner, increasing taxable profits;

    7) Even if it is assumed that receivables are due from the Associated
    Enterprise, the same would be shown in the accounts of the
    petitioner only when it is actually received; and

    8) Reliance cannot be placed on draft assessment order or on the
    reasons recorded for AY 2015-16 to justify reopening of the
    assessment for AY 2013-14.

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    137. On the other hand, the contentions of Mr. Indruj Singh Rai can be
    summed up as under:-

    1) There is no requirement for the Assessing Officer to have any
    information suggesting escapement of income to reopen
    assessments pursuant to a search, owing to a deeming fiction in
    Explanation 2 to Section 148 of the Act as was in force then;

    2) Pursuant to the search under Section 132 of the Act, information
    came to the fore that there is an escapement of income of the
    petitioner in the nature of an asset, being receivables on account of
    counter claims and warranty;

    3) From the Transfer Pricing Report of the petitioner, it can be seen
    that the entire claims towards customer claims and warranty are to
    be borne by the Associated Enterprise and not the petitioner;

    4) The petitioner in its reply to a query raised by the Revenue during
    the draft assessment proceedings for AY 2015-16 conceded that
    subsequent to the reopening, there have been certain
    reimbursements;

    5) Any receivables would amount to asset for the purpose of Section
    153A, as can be seen from the wording of Explanation 2 therein;

    6) Even applying the principle of ejusdem generis, receivables would
    have the same meaning as „loans and advances‟ mentioned in the
    Explanation 2;

    7) Where material found during a search evidences a continuing
    transaction or arrangement giving rise to recurring tax
    consequences across multiple years, such material is relevant and

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    applicable to each of those assessment years. As such, the reasons
    recorded for both AYs 2013-14 & 2015-16, are justified.

    138. For initiating reassessment beyond three years but up to ten years, it
    is a necessary pre-condition that income which has escaped assessment must
    be in the nature of an asset. The stand of the Revenue is that in view of the
    Distribution Agreement between the petitioner and the Associated
    Enterprise, the petitioner is a limited risk distributor of the Associated
    Enterprise, and the provisions made anticipating customer claims and
    warranty claims are to be reimbursed by the Associated Enterprise. In that
    sense, the provisions are receivables at the hand of the petitioner, in the
    nature of assets. However, as per the petitioner, there is no contractual
    agreement for any reimbursement of the provisions made for customer
    claims and warranty. When there is no right to receive any reimbursement,
    there cannot be any receivables.

    139. It is a conceded position that the Distribution Agreement dated
    01.04.2010, has been executed between the petitioner and the Associated
    Enterprise. The same was in existence during the relevant assessment years.
    Relevant parts of the said agreement, on which much reliance is placed by
    the Revenue, are reproduced hereunder:

    ―WITNESSETH:

    WHEREAS, Huawei India has been established as a
    distribution support organisation in the Territory acting as a
    limited risk distributor in respect of various Huawei products
    and equipment manufactured outside equipment
    manufacturers (‘OEM products’)….

    ……

    ARTICLE III RESPONSIBILITIES
    Section 3.2 Responsibilities of Seller. Huawei Singapore shall
    at all times during the term of this Agreement.

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    …….

    b. Assume risks relating to Product quality, order processing
    errors, mistakes in the communication of P specifications, or
    other Product related matters as long as such risks, errors or
    mistakes were not considered attributable to Huawei India.

    ARTICLE VII
    INDEMNIFICATION
    Huawei Singapore shall hold Purchaser harmless and shall
    indemnify Huawei India from and again loss, cost or expense,
    including reasonable attorneys’ fees, related to any act or
    omission in connection the non-performance of the Products
    supplied under the terms of this Agreement.‖

    140. A perusal of the above reveals that the Associated Enterprise shall
    assume the risk related to product quality or other related matters, as long as
    such risk, error or mistake is not attributable to the petitioner, and also that
    the Associated Enterprise is to indemnify the petitioner from and against any
    loss, cost or expense incurred by the petitioner related to any act or omission
    in connection with the non-performance of a supplied product.

    141. When the petitioner has a right to be indemnified for any expense
    incurred by it for non-performance of the product, it cannot contend that
    there is no contractual agreement for reimbursement, as the creation of
    provisions for customer claims and warranty would amount to an “act… in
    connection with the non-performance of the Products supplied…”

    142. It is also to be noted that the petitioner in its reply dated 22.04.2025 to
    the query raised by the Revenue with respect to the draft assessment
    proceedings of AY 2015-16 has admitted that an amount of
    Rs.69,81,40,820/- has been recovered from its Associated Enterprise on
    account of customer claims. If that be so, the submission of Mr. Datar and

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    Mr. Gulati that there is no agreement between the petitioner and the
    Associated Enterprise for reimbursement of the provisions is unmerited. As
    such, it must be held that the provisions claimed for customer claims and
    warranty are reimbursable to the petitioner, and are as such „receivables‟.

    143. Now the question arises whether such receivables are in the nature of
    “assets”, and also whether the same should be shown in the profit and loss
    account for the relevant assessment years for which deductions have been
    sought.

    144. To decide the same, we need to examine Explanation 2 to Section
    153A
    of the Act, which we reproduce again for ready reference:

    ―Explanation 2.– For the purposes of the fourth proviso, ―asset‖
    shall include immovable property being land or building or both,
    shares and securities, loans and advances, deposits in bank account.‖

    145. The provision states that the word “asset” shall include immovable
    property being land or building or both, shares and securities, loans and
    advancements, deposits in bank account. The words “shall include” used
    imply that the words provided thereafter are illustrations, and not exhaustive
    definitions of “asset”. It is an inclusive provision inasmuch as it
    contemplates even the words not provided therein. We agree with the
    submission of Mr. Rai that if the intention of the legislature was to limit the
    scope of “asset” to only those words mentioned, it would have expressly
    done so, as it did while drafting the Explanation to Section 281 of the Act
    which, in contrast, provides an exhaustive definition of the same word
    “asset”.

    146. Even in general parlance, the word “asset” represents resources with
    economic value that an individual or business owns or controls with the

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    expectation that they will provide a future benefit. In other words, an asset is
    a tangible or intangible resource that can be used to enhance the economic
    stature of the holder. An asset cannot be narrowly confined to the specific
    expressions employed within the above explanatory provision, as sought to
    be contended by the learned Senior Counsel for the petitioner. To impose
    such a restrictive interpretation would unduly curtail the scope of its
    meaning, thereby leading to an anomalous situation whereby the Revenue
    would be precluded from bringing to assessment those forms of income,
    which, though not expressly enumerated, fall within the broader conceptual
    ambit of an asset and would otherwise escape assessment.

    147. That apart, the Conceptual Framework for Financial Reporting under
    Indian Accounting Standards (Ind AS) issued by the Indian Accounting
    Standard Board defines an asset as a present economic resource controlled
    by an entity as a result of past events. An economic resource is further
    defined as a right that has the potential to produce economic benefits. It
    describes three aspects of an asset viz. right, potential to produce economic
    benefits, and control. Relevant portion of the Framework is reproduced as
    under:-

    ―Definition of an asset
    4.3 An asset is a present economic resource controlled by
    the entity as a result of past events.

    4.4 An economic resource is a right that has the potential to
    produce economic benefits.

    4.5 This section discusses three aspects of those definitions:

    (a) right (see paragraphs 4.6-4.13);

    (b) potential to produce economic benefits (see
    paragraphs 4.14-4.18); and

    (c) control (see paragraphs 4.19-4.25).

    Right

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    4.6 Rights that have the potential to produce economic
    benefits take many forms, including:

    (a) rights that correspond to an obligation of another party
    (see paragraph 4.39), for example:

    (i) rights to receive cash.

    (ii) rights to receive goods or services.

    (iii) rights to exchange economic resources with another
    party on favourable terms. Such rights include, for
    example, a forward contract to buy an economic resource
    on terms that are currently favourable or an option to buy
    an economic resource.

    (iv) rights to benefit from an obligation of another party
    to transfer an economic resource if a specified uncertain
    future event occurs (see paragraph 4.37).

    xxx xxx xxx
    Potential to produce economic benefits
    4.14 An economic resource is a right that has the potential
    to produce economic benefits. For that potential to exist, it
    does not need to be certain, or even likely, that the right will
    produce economic benefits. It is only necessary that the
    right already exists and that, in at least one circumstance, it
    would produce for the entity economic benefits beyond those
    available to all other parties.

    4.15 A right can meet the definition of an economic
    resource, and hence can be an asset, even if the probability
    that it will produce economic benefits is low. Nevertheless,
    that low probability might affect decisions about what
    information to provide about the asset and how to provide
    that information, including decisions about whether the
    asset is recognised (see paragraphs 5.15-5.17) and how it
    is measured.

    4.16 An economic resource could produce economic
    benefits for an entity by entitling or enabling it to do, for
    example, one or more of the following:

    (a) receive contractual cash flows or another economic
    resource;…

    xxx xxx xxx

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    4.46 A present obligation can exist even if a transfer of
    economic resources cannot be enforced until some point in
    the future. For example, a contractual liability to pay cash
    may exist now even if the contract does not require a
    payment until a future date. Similarly, a contractual
    obligation for an entity to perform work at a future date
    may exist now even if the counterparty cannot require the
    entity to perform the work until that future date.‖
    (emphasis supplied)

    148. Even from the above, it becomes apparent that an asset can be said to
    be a present right that has the potential to produce economic benefits even in
    the future. It can include a right that corresponds to an obligation of another
    party, a right to receive cash, or a right to benefit from an obligation of
    another party to transfer an economic resource, if a specified uncertain
    future event occurs. Such a right only has to exist and it need not be certain
    that it will produce economic benefits, for it to be termed as an asset.

    Further, a present obligation can exist for an entity even if transfer of the
    economic resource cannot be enforced until some point in the future.

    149. In the present case, by virtue of the Distribution Agreement, the
    petitioner has acquired a right to be indemnified by the Associated
    Enterprise for the expenses it incurs on customer claims/warranty. Even if
    the actual indemnification/reimbursement happens only in the future, it does
    not take away the fact that such a right has arisen in the relevant assessment
    year when the provisions for customer claims/warranty were made. Such a
    right to receive reimbursement in the future would certainly enhance the
    economic stature of the petitioner, and as such, would amount to an asset.

    150. Going by the above, we are of the view that the amounts receivable by
    the petitioner by way of reimbursement of the provisions made for customer

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    claims and warranty, are to be treated as assets and shown in the accounts of
    the petitioner for the relevant assessment years. Though the said amounts
    may accrue in the future, the right to receive the same emanates from the
    Distribution Agreement and ensues to the petitioner when it made the
    provisions and claimed deductions, and must be shown as assets in the
    accounts of the petitioner for the relevant years.

    151. Therefore, the issue as to whether receivables at the hands of the
    petitioner are in the nature of an asset is answered in favour of the Revenue
    and against the petitioner/assessee.

    152. In view of the above conclusion, we shall now proceed to decide
    whether the impugned notices are justified. Insofar as the notice dated
    31.03.2024 for AY 2013-14 is concerned, we have seen the reasons recorded
    in support of the notice under Section 148 of the Act, the same read as
    under:-

    ―1. The assessee, M/s Huawei Telecommunications (India)
    Company Private Limited (HTICPL) (PAN-AABCHI1376E) is
    as company. HTICPL is a Private Limited company
    incorporated on 23 July 2002. It is classified as pon-govt
    Company and is registered at Registrar of Companies, Delhi.
    The objective of the company is to carry out business
    manufacture, assembly, software design, development and
    activities, development and integration of all types of
    communications, networks products and solutions, dealing in
    all equipment products and solutions related to telecom
    networks and services.

    2. The Return of income for AY 2013-14 was filed by the
    assessee u/s 139(1) of the Act on 29.11.2013 declaring loss of
    Rs.311,04,30,235/- and revised the return on 30.03.2015
    declaring loss of Rs.310,39,86,024/. The return was processed
    u/s 143(1) of the Act. After that the case was picked up for
    scrutiny through CASS. The assessment was completed on

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    03.10.2017 u/s 143(3)/144C is the total loss of
    Rs.294,03,55,100/-. Apart from other additions made by the
    AO, an addition of Rs. 12,86,11,894 was made on account of
    provision for customer claims under section 37 or 40a(in) of
    the Act. This issue is also involved under consideration.

    3. Thereafter, a search and seizure operation was conducted
    on Huawei Group and related entities on 15.02.2022. Assessee
    was one of the persons covered under search action.

    Accordingly, for the purpose of better coordination, effective
    investigation and meaningful investigation, the case of the
    assessee was centralized with the office of the undersigned
    vide order u/s 127 of the Income Tax Act, 1961 (hereinafter
    referred to as “the Act”) bearing number F. No. Pr.

    CIT/FBD/Tech/127/Cent/2022-23 dated 09.11.2022 passed by
    the Pr. CIT, Faridabad.

    4. During the search proceedings certain incriminating digital
    evidences, loose sheets, diaries etc were found and seized from
    the business premise of HTICPL 19, 10 and 11th Floor,
    Capital Cyberscape, Gurugram Manesr, Urban Complex,
    Sector-59, Ullahwas, Gurugram, Haryana-122011‖

    5. 5. As per submitted audit report dated 08.06.2020 in Form
    3CA for FY 2019-20, as per Form 3CD, point 11(b), following
    books of accounts were mentioned to be maintained at 9th
    Floor, Capital Cyberscape, Gurugram Manesar, Urban
    Complex, Sector-59, Ullahwas, Gurugram, Haryana-122011,
    viz

    i. General ledger (computerized)
    ii. Journal Book (computerized),
    iii. Monthly payroll records (computerized),
    iv. Inventory ledger (Computerized),
    v. Fixed assets register (computerized),
    vi. Other relevant documents, bilis, vouchers,
    receipts, Debit note, Credit note, Inventory register,
    Agreements, orders etc.

    6. During the course of the Search, the officials of the
    company were inquired about the books of accounts of the

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    company. However, during search, HTICPL only provided the
    dump ERP data without providing details as required. The
    data provided was analysed and there are issues relating to
    the correctness of the ERP data provided by the company.

    7. The finances of the company provided during the course of
    Search is incoherent, unsegregated, voluminous and required
    significant amount of further processing to come to a form
    that can be examined. The functionaries of the company based
    in India could not explain the rationale of the various
    transactions entered by the company and have made post facto
    submissions. The ERP data itself in two financial years is not
    matching with the final trial balance of the company on
    account of duplication and missing data The company has
    neither provided backup of the digital books of accounts,
    required to be kept at servers physically located in India nor
    provided the address of such physical servers. Based on such
    circumstances, the accounts of the company are clearly
    complex, voluminous and in certain years incorrect.

    Accordingly, I am satisfied that the books of account seized
    during search suggest that the income chargeable to tax has
    escaped assessment in the case of Assessee.

    8. The assessee company has created and claimed the
    provision of customer claim as deduction for the purpose of
    Income Tax calculation. The said provision was created by the
    assessee company due to the probable deduction that the
    customer might make on account of potential delay in supply
    of goods or provision of services. The material available on
    record, pursuant to search, does not justify the allowability of
    the same especially the reliability of estimate for provisioning
    of these expenses on scientific basis. It is seen from the
    financial statements and documents discovered during the
    search proceedings, the Assessee Company has been claiming
    huge provisions on account of customer claims as a deduction.
    The assessee claimed that the said provision is created by the
    Assessee due to probable deduction that the customer might
    make on account of customer claims as a deduction. The
    assessee claimed that the said provision is created by the
    Assessee due to probable deduction that the customer might

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    make on account of potential delay in supply of goods or
    provision of services. Based on the search and post search
    investigation carried out in the case it became clear that the
    said provision is not an ascertained liability. Further, it
    appears the Assessee does not have any present obligation to
    discharge such liquidated damages, the provision made on
    this account appears to be a contingent liability which lacked
    reasonable certainty and possible quantification. Therefore,
    the same do not constitute expenditure and cannot be the
    subject matter of deduction. In light of this new fact emerged
    during search proceedings and post search investigation that
    assessee does not have any obligation to discharge such
    liquidate damages, the allowability of provision customer
    claim without scientific basis should be investigated and
    nature of transaction. The issue in monetary terms for the year
    under consideration is given below:

                                             AY        Amount of provision of customer claims created
                                                                           (in INR)
                                         2013-14                         12,86,11,894
    
    

    9. The undersigned shall be deemed to have information which
    suggests that the income chargeable to tax has escaped
    assessment in the case of Assessee Company for AY 2013-14,
    within the meaning of section 147 of the 1.T. Act. Further, it
    appears the assessee does not have any present obligation to
    discharge such liquidated damages, the provision made on
    this account appears to be a contingent liability which lacked
    reasonable certainty and possible quantification. Therefore,
    the same do not constitute expenditure and cannot be the
    subject matter of deduction even under the mercantile system
    of accounting followed by the assessee company. The expenses
    booked by assesse company are not less than Rs. 50 Lakh. …‖
    (emphasis supplied)

    153. Similarly, the relevant reasons recorded for AY 2015-16, are the
    following:-

    ―5.3.1 Issues related to Warranty expenses:

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    5.3.2 The company has claimed expenses as provision of
    warranty in the various years. The Transfer Pricing Report of
    HTICPL show that the claim of warranty expenses made by the
    assessee is against the functional and risk profile detailed by
    the assessee in its Transfer Pricing Report in view of the
    functional, asset, risk analysis of this transaction. Year wise
    bifurcation of the issue in monetary terms is as given below in
    Table form.

                                  AY      Provision for Remarks
                                          warranty
                                          claimed
                              2012-12        6,64,20,517          Provision amount of ₹ 6,64,20,517 was
                                                                  created as per P&L Account.
                              2013-14        -                    No provision was created during the
                                                                  previous year.
                              2014-15        -                    No provision was created during the
                                                                  previous year.
                              2015-16        12,33,22,221         Provision amount of 12,33,22,221 was
                                                                  created as per P&L Account.
                              2016-17        55,72,52,128         Provision amount of 55,72,52,128 was
                                                                  created as per P&L Account.
                              2017-18        48,37,99,536         Provision amount of %48,37,99,536
                                                                  was created as per P&L Account.
                              2018-19        40,88,97,095         Provision amount of X20,39,44,418 was
                                                                  created as per P&L Account and X
                                                                  20,49,52,676 was debited as per the
                                                                  provision of ICDS (refer to the clause
                                                                  13e of tax audit report)
                              2019-20        81,23,81,153         Provision amount of %70,50,27,509
                                                                  was created as per P&L Account and %
                                                                  10,73,53,644 was debited as per the
                                                                  provision of ICDS (refer to the clause
    
    
    
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                                                                   13e of tax audit report)
                              2020-21        19,75,18,259         Provision amount of %19,75,18,259
                                                                  was created as per P&L Account.
                              2021-22        16,88,49,299         Provision amount of X16,88,49,299 was
                                                                  created as per P&L Account.
    
    
    

    5.3.4 As per the Distribution agreement between assessee and
    it’s Associated Enterprises i.e. M/s Huawei International Pte
    Ltd, any expenditure incurred on account of warranty is
    required to be borne by the supplier of the product i.e., the
    Associated Enterprises. However, assessee has debited
    warranty expenses and not shown any separate compensation
    being received from the supplier ii n the books of accounts.

    The argument of the assessee that the warranty
    expenditure is required to be borne by it in terms of the
    contract with the final client is fallacious. While the provision
    of warranty for supply of a defective product might be the
    obligation of the” assessee, in terms of its supply contract with
    the final client, in terms of the distribution agreement, such
    warranty is finally required to be borne by the supplier of the
    product. Thus, while the assessee may be required to recognise
    the expenditure on warranty in its books of accounts due to its
    obligations towards the final client, reimbursement or
    compensation received from the supplier is also required to be
    recognised in the same way. The assessee cannot be in a worse
    position vis-a-vis warranty, even after back-to-back
    compensation being provided by the supplier.

    5.3.5 Further, during the post search enquiry, the Assessee was
    asked to explain how ‗warranty fee rate’ for the purpose of
    computing provision for warranty is arrived at. However, the
    reply given by the Assessee was found to be vague as it was
    informed that fee rate calculated based on global analysis
    which took into account the costs incurred by the Group on
    rectifying defaults in similar products sold to customers.
    However, the reply of the assessee was not found to be tenable
    because of following reaons:

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    a) There is no prescribed methodology which has obtained
    global recognition in the financial accounting on the
    determination of the ―warranty free rate‖

    b) Such practice of calculating the rate based on global
    analysis tantamount to imposing the global average to the
    Indian market which might not be the case as Indian
    geographic market might not behave in the same manner as the
    assessee assumed to do so.

    c) Such methodology would also fail in those products which
    are launched for the first time in the market, or which do not
    have any precedent to arrive at the “warranty fee rate”

    d) Huawei not only provides B2C products but also many B28
    product and services which requires high level of personalized
    customization based on the end user requirement, and therefore
    in such sales, calculation of provision of warranty would be
    difficult if not impossible.

    5.3.6 Furthermore, the provision for warranty expense is not an
    allowable deduction as it is a contingent liability. The test to
    ascertain the nature of liability is whether a provision provides
    for a liability for which the amount can be determined with
    substantial accuracy. The Assessee has submitted that liability
    of warranty provision is determined on the basis of costs liable
    to be incurred in relation to warranty obligation contracted
    with respected. customers, which apparently is not on a
    scientific basis. The contentions of the Assessee are not
    acceptable.

    5.3.7 As per discussion above, accounting treatment given by
    the taxpayer in its books of accounts is the claim of Provision
    of warranty expenses as an expenditure in profit and loss
    account, while there is no reimbursement/recoupment of
    expenses from the associated enterprises. Therefore, the income
    which has escaped assessment (Rs. 12,33,22,221/-) should exist
    as a payment receivable in the books of accounts of the
    taxpayer, which is in the nature of an ‘asset’.

    Accordingly, I am satisfied that the books of account
    seized during search suggest that the income chargeable to tax
    of Rs. 12,33,22,221/- has escaped assessment represented in
    form of asset in the case of assessee for Α.Υ. 2015-16.‖

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    (emphasis supplied)

    154. A perusal of the notice under Section 148 of the Act dated 31.03.2024
    and the satisfaction note containing the reasons recorded for AY 2013-14
    would reveal that the re-assessment is being initiated pursuant to the search
    dated 15.02.2022 under Section 132 of the Act. However, unlike the reasons
    recorded for AY 2015-16, it does not state that the provision was
    reimbursable by the Associated Enterprise, making it an asset. It also does
    not make any reference to the Distribution Agreement or the Transfer
    Pricing Study. Though the said notice and reasons recorded for AY 2013-14
    were issued after the search and also after the notice dated 31.03.2023 for
    AY 2015-16 was issued, the Assessing Officer has not made any reference
    whatsoever to any receivables amounting to assets.

    155. We must state that the fourth proviso to Section 153A of the Act lays
    down the conditions precedent for issuance of notice for reassessment. It is
    only upon fulfillment of such conditions that the Assessing Officer assumes
    jurisdiction to issue a notice under Section 148 of the Act. Since satisfaction
    of the conditions therein is a jurisdictional requirement, it is incumbent upon
    the Assessing Officer to demonstrate in writing as to how the conditions
    have been satisfied for him to assume jurisdiction. Therefore, initiation of
    re-assessment has to be examined on the basis of the notice and the
    subsequent satisfaction note containing the reasons recorded.

    156. The Assessing Officer has stated in the reasons recorded for AY
    2013-14 that the material discovered during the search proceedings show
    that the provision made for the customer claims is not an ascertained
    liability, but a contingent one. It is also stated that the allowability of the

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    provision should be investigated. In other words, the reasons for the
    Assessing Officer to issue the notice has to do with the genuineness of the
    expense claimed.

    157. The issue as to whether an assessment can be reopened on the sole
    basis that allowability or genuineness of the expense need to be investigated
    or verified is no more res integra. This Court in Le Passage to India Tours
    & Travels Pvt. Limited v. Additional Commissioner of Income Tax
    ,
    2014:DHC:2015-DB has held as under:-

    ―5. In the present case the ―reasons to believe‖ – extracted
    above – nowhere reveal as to what tangible material which
    the AO came to obtain to justify the reassessment notice. In
    the previous instance, the reassessment notice was based on
    the assumption that a much larger income had accrued to
    the assessee whereas only a fraction of its was offered in the
    P & L account. In the present case, a somewhat similar, if
    not identical, ground has been made out i.e. that of expenses
    incurred abroad have not been revealed. This was an aspect
    which was known to the AO at the time of the original
    assessment; the explanations by the assessee appear to have
    been taken into account. At the time when the first
    reassessment notice was issued a facet of this was taken into
    consideration and in fact cited in the ―reasons to believe‖.
    A virtual assertion of the same reasons in different words
    does not clothe the reassessment notice, in the opinion of
    the Court, with any more sanctity, nor does it take away the
    vice of lack of jurisdiction noticed in the order in WP
    8685/2010. Moreover, an assessment cannot be reopened
    merely to verify the genuineness of the expenses as that
    would amount to an impermissible fishing or rowing
    enquiry without any tangible material to show escapement
    of income.

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    For the above reasons it is held that the impugned notice is
    not justified and beyond the authority of law. It is
    accordingly quashed and the writ petition is allowed.‖
    (emphasis supplied)

    158. It is pertinent to note here that the allowability of the provisions made
    for customer claims for AY 2013-14 as well as the methodology used for
    arriving at the amounts so claimed, was subject matter of an appeal before
    the Tribunal, in ITA No.7510/Del/2017, wherein while relying upon the
    judgment of the Supreme Court in Rotork Controls India (P) Ltd. (supra),
    the Tribunal has held as under:-

    ―42. Evidence brought on record by the taxpayer shows that
    aforesaid conditions have been fulfilled and as such,
    provision made qua the amount provided by the taxpayer
    pertaining to actual delays and defaults occurred in terms
    of the contract entered into between the taxpayer and its
    customers is to be considered as ―ascertained liability‖. So,
    AO/DRP have erred in making disallowance on account of
    provision for customer claims. So, it is ordered to be deleted
    subject to verification of data brought on record by the
    taxpayer as discussed in the preceding paras. Consequently,
    grounds no.4 to 4.3 of ITA No.7509/DEL/2017 &
    7510/DEL/2017 for Assessment Years 2012-13 & 2013-14
    respectively are determined in favour of the taxpayer.‖

    159. As seen from the above, the Tribunal has given a categorical finding
    that the provisions made for customer claims for AY 2013-14 is an
    ascertained liability. The order of the Tribunal has not been challenged. If
    that be so, the Assessing Officer cannot be permitted to reopen the
    assessment, based on the same issue. Mr. Datar is justified in relying upon
    the judgment in Smart Chip Private Ltd. (supra) wherein it was held as
    under:-

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    ―16. It is apparent from the above that the AO believed that the
    petitioner’s income had escaped assessment for AY 2016-17 on
    essentially three grounds. First, that the petitioner had deducted
    expenses relating to amounts paid to certain persons who had not
    filed their income tax returns and the AO thus doubted the
    genuineness of the said transactions. Second, that the petitioner
    had booked expenses, which according to the AO, were personal
    expenses of its directors and had not been incurred wholly and
    exclusively for the purpose of the petitioner’s business. And third,
    that the petitioner had paid certain amounts as expenses for
    availing contractual manpower services and the AO doubted the
    genuineness of the said payments.

    17. It is clear from the above that there is no allegation that the
    income which has escaped assessment was represented in the form
    of an asset. Therefore, the conditions as stipulated in Clause (a)
    of the fourth proviso to Section 153A(1) of the Act are not
    satisfied. The AO does not have the possession any books of
    account, other documents or evidence, which reveals that the
    petitioner’s income that is represented in the form of an asset has
    escaped assessment.

    18. In terms of Explanation 2 to Section 153A(1) of the Act, the
    term ‗asset’ is defined to include immovable property being land
    or building or both, shares and securities, loans and advances,
    deposits in bank accounts.

    19. The AO seeks to disallow expenses on account of doubting the
    genuineness for the reason that the same were not incurred wholly
    or exclusively for the purpose of the petitioner’s business. Absent
    any further material to establish that such expenses had resulted
    in the acquisition of any asset, the conditions stipulated in the
    fourth proviso to Section 153A(1) of the Act would remain
    unsatisfied.‖
    (emphasis supplied)

    160. Since the genuineness or allowability of expenses cannot be the sole
    reason to initiate reassessment, we must hold that though the notice for AY
    2013-14 was issued subsequent to the notice in AY 2015-16, the Assessing
    Officer failed to specify as to how the provision made for customer claims

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    would amount to income escaping assessment in the nature of an asset, for
    him to assume jurisdiction. Therefore the reasons recorded by the Assessing
    Officer to reopen the assessment for AY 2013-14 do not satisfy the fourth
    proviso to Section 153A(1) of the Act.

    161. The argument of Mr. Rai is that the reasons provided for AY 2016-17
    (subject matter of a separate writ petition W.P.(C) 15972/2023), that
    incriminating material derived from the search reveal that there is an
    escapement of income in the form of customer claims as receivables, should
    be read in conjunction with AY 2013-14 as both notices emanate from the
    same search proceedings and material gathered. His argument is that so long
    as reasons exists, elaborating such reasons for AY 2013-14 in the reasons
    recorded for the AY 2016-17 does not vitiate the reassessment, as in cases of
    search, since the Assessing Officer is deemed to have incriminating
    evidence, the procedure prescribed under Section 148A of the Act, i.e.
    issuance of notice along with the reasons, is not applicable. We are not in
    agreement with the above submission of Mr. Rai, for the reason that even in
    cases of search, the jurisdictional requirement set out in Section 153A of the
    Act needs to be fulfilled, by way of recording of reasons detailing as to how,
    income in the nature of an asset has escaped assessment.

    162. Mr. Rai has referred to the judgment in the case of Indian National
    Congress (supra) in support of his contention that since Section 153A does
    not mandate separate reasons recorded for each assessment year, the reasons
    recorded in the satisfaction note for AY 2016-17 which encapsulates
    incriminating material pertaining to the assessment years in question, would
    suffice. We are not impressed by the submission, for the reason that in
    Indian National Congress (supra), this Court while dealing with Section

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    153C of the Act, was examining the validity of a common satisfaction note
    issued by the Revenue for the assessment years forming part of a block as a
    whole. The issue before the Court was whether the composite and common
    satisfaction note would suffice for the years in the block. However, in the
    present case, notices and satisfaction notes containing the reasons recorded
    have been issued for both AY 2013-14 and AY 2016-17 separately. There is
    nothing before us to suggest that either of the notices were in the nature of a
    composite or common satisfaction note referring to the block as a whole.
    The endeavour of Mr. Rai is to say that the reasons recorded for AY 2016-
    17, emanating from the same search and materials gathered, evidence a
    continuing transaction or arrangement giving rise to recurring tax
    consequences across multiple years, and therefore should be read to be
    applicable to AY 2013-14 also. However, it is not his case that the notice or
    the satisfaction note for AY 2016-17 make any reference to incriminating
    material found qua AY 2013-14 or a block period. In the absence of such
    reference by the Assessing Officer, the notice / satisfaction note for AY
    2016-17 cannot be considered as a common or composite satisfaction note
    resting on incriminating material pertaining to the AY 2013-14. For this
    reason, the above submission of Mr. Rai and his reliance on the judgment in
    Indian National Congress (supra) warrant rejection.

    163. We are of the view that reliance was rightly placed by the learned
    Senior Counsel for the petitioner on the judgment of this Court in the case of
    Saksham Commodities Limited (supra) to say that the Assessing Officer
    needs to necessarily identify the assessment years to which the material
    gathered in the course of a search may relate to before issuing the notice.

    The judgment in the case of Saksham Commodities Limited (supra) though

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    delivered in the context of Section 153C of the Act dealing with abatement
    of pending assessment and reassessment pursuant to a search, contains ratio
    applicable to the facts of the present case. We reproduce the relevant part of
    the judgment as under:-

    ―48. In terms of the Second Proviso to Section 153A, all
    assessment or reassessment proceedings relating to the six AYs’
    or the ―relevant assessment year‖ pending on the date of search
    are statutorily envisaged to abate. Abatement is envisioned to be
    an inevitable consequence of the initiation of action under Section
    153A. Neither issuance of notice nor abatement are predicated
    upon a formation of opinion by the AO of the searched person that
    the material is likely to impact the total income of that assessee.
    However, the spectre of abatement insofar as the ―other person‖
    is concerned would arise only after the jurisdictional AO has
    formed the requisite satisfaction of the material having ―a
    bearing on the determination of the total income of such other
    person‖ and having formed the opinion that proceedings under
    Section 153C are liable to be initiated. It would be pertinent to
    bear in mind that Kabul Chawla was a decision rendered in the
    context of Section 153A. It was in the aforesaid backdrop that the
    Court significantly observed that once a search takes place under
    Section 132 of the Act, notice under Section 153A(1) would
    mandatorily issue. The abatement of assessment and reassessment
    pending on that date would, in the case of a Section 153A
    assessment, be a preordained consequence. However, and in light
    of what has been observed hereinabove, it is apparent that Section
    153C constructs a subtle and yet significant distinction insofar as
    the question of commencement of proceedings or assumption of
    jurisdiction is concerned.

    49. That takes us to the principal question and which pertains to
    the nature of the incriminating material that may be obtained and
    the years forming part of the block which would merit being
    thrown open. Regard must be had to the fact that while Section
    153C enables and empowers the jurisdictional AO to commence
    assessment or reassessment for a block of six AYs’ or the
    ―relevant assessment year‖, that action is founded on satisfaction

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    being reached that the books of accounts, documents or assets
    seized ―have a bearing on the determination of the total income of
    such other person‖. We in this regard bear in mind the well
    settled distinction which the law recognizes between the existence
    of power and the exercise thereof. Section 153C enables and
    empowers the jurisdictional AO to assess or reassess the six AYs’
    or the ―relevant assessment year‖. The Act thus sanctions and
    confers an authority upon the AO to exercise the power placed in
    its hands for up to a maximum of ten AYs’. Despite the conferral
    of that power, the question which would remain is whether the
    facts and circumstances of a particular case warrant or justify the
    invocation of that power. It is the aforesaid aspect which bids us
    to reiterate the distinction between the existence and exercise of
    power.

    50. What we seek to emphasise is that merely because Section
    153C confers jurisdiction upon the AO to commence an exercise
    of assessment or reassessment for the block of years which are
    mentioned in that provision, the same alone would not be
    sufficient to justify steps in that direction being taken, unless the
    incriminating material so found is likely to have an impact on the
    total income of a particular AY forming part of the six AYs’
    immediately preceding the AY pertaining to the search year or for
    the ―relevant assessment year‖.

    51. Ultimately Section 153C is concerned with books, documents
    or articles seized in the course of a search and which are found to
    have the potential to impact or have a bearing on an assessment
    which may be undergoing or which may have been completed.

    The words ―have a bearing on the determination of the total
    income of such other person‖ as appearing in Section 153C would
    necessarily have to be conferred pre-eminence. Therefore, and
    unless the AO is satisfied that the material gathered could
    potentially impact the determination of total income, it would be
    unjustified in mechanically reopening or assessing all over again
    all the ten AYs’ that could possibly form part of the block of ten
    years.

    52. The decisions which hold that an assessment is liable to be
    revised only if incriminating material be found, even if rendered in
    the context of Section 153A, would clearly govern the question

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    that stands posited even in the context of Section 153C. It would
    be relevant to recall that the Division Bench in Kabul Chawla had
    observed that in the absence of any incriminating material, a
    completed assessment may be reiterated and the abated
    assessment or reassessment be concluded. The importance of
    incriminating material was further underlined in Kabul Chawla
    with the Court observing that completed assessments could be
    interfered with, only if some incriminating material were
    unearthed. This aspect came to be reiterated in RRJ Securities
    when the Court held that it would be impermissible to either
    reopen or reassess a completed assessment which may not be
    impacted by the material gathered in the course of the search and
    which may have no plausible nexus. The aforesaid position also
    comes to the fore when one reads para 17 of ARN Infrastructure
    and which annulled an action aimed at reopening assessments for
    years to which the incriminating document which was found did
    not relate.

    53. Sinhgad Technical Education Society also constitutes a
    binding precedent in respect of the aforesaid proposition as
    would be evident from the Supreme Court noticing that the
    material disclosed pertained only to AY 2004-05 or thereafter and
    that consequently the Section 153C action initiated for AYs’
    2000-01 to 2003-04 would not sustain. It was this position in law
    as enunciated in that decision which came to be reiterated by our
    Court in Index Securities.

    54. In any case, Abhisar Buildwell, in our considered opinion, is a
    decision which conclusively lays to rest any doubt that could have
    been possibly harboured. The Supreme Court in unequivocal
    terms held that absent incriminating material, the AO would not
    be justified in seeking to assess or reassess completed
    assessments. Though the aforesaid observations were rendered in
    the context of completed assessments, the same position would
    prevail when it comes to assessments which abate pursuant to the
    issuance of a notice under Section 153C. Here too, the AO would
    have to firstly identify the AYs’ to which the material gathered in
    the course of the search may relate and consequently it would
    only be those assessments which would face the spectre of
    abatement. The additions here too would have to be based on

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    material that may have been unearthed in the course of the
    search or on the basis of material requisitioned. The statute thus
    creates a persistent and enduring connect between the material
    discovered and the assessment that may be ultimately made. The
    provision while speaking of AYs’ falling within the block of six
    AYs’ or for that matter all years forming part of the block of ten
    AYs’, appears to have been put in place to cover all possible
    contingencies. The aforesaid provisions clearly appear to have
    been incorporated and made applicable both with respect to
    Section 153A as well as Section 153C ex abundanti cautela.
    Which however takes us back to what had been observed earlier,
    namely, the existence of the power being merely enabling as
    opposed to a statutory compulsion or an inevitable consequence
    which was advocated by the respondents.

    55. Take for instance a case where the material gathered in the
    search is contemplated to have an adverse impact on the
    declarations and disclosures made by an assessee pertaining only
    to AYs’ 2016-17 and 2017-18. What we seek to emphasise is that
    pending assessments for those two years could validly form
    subject matter of action under Section 153C and pending
    assessments in that respect would surely abate. However, that by
    itself would not be sufficient to either reopen or issue notices in
    respect of AYs’ prior to or those falling after those two AYs’ and
    which may otherwise fall within the maximum block period of ten
    years merely because the statute empowers the AO to do so.
    Unless the material gathered and recovered is found to have
    relevancy to the AY which is sought to be subjected to action
    under Section 153C, it would be legally impermissible for the
    respondents to invoke those provisions. Consequently, the AO
    would be bound to ascertain and identify the year to which the
    material recovered relates. The years which could be then
    subjected to action under Section 153C would have to necessarily
    be those in respect of which the assessment is likely to be
    influenced or impacted by the material discovered. Section 153C
    neither mandates nor envisages a mechanical or an en blanc
    exercise of power, or to put it differently, one which is
    uninformed by a consideration of the factors indicated above.

    56. We also bear in mind the pertinent observations made in RRJ

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    Securities when the Court held that merely because an article or
    thing may have been recovered in the course of a search would
    not mean that concluded assessments have to ―necessarily‖ be
    reopened under Section 153C and that those assessments are not
    liable to be revised unless the material obtained have a bearing on
    the determination of the total income. This aspect was again
    emphasised in para 38 of RRJ Securities with the Court laying
    stress on the existence of material that may be reflective of
    undisclosed income being of vital importance. All the aforenoted
    judgments thus reinforce the requirement of incriminating
    material having an ineradicable link to the estimation of income
    for a particular AY.

    57. It becomes pertinent to note that both Sections 153A and 153C
    require the assessee upon being placed on notice to furnish ROIs’
    for the six AYs’ or the ―relevant assessment year‖. All that the two
    provisions mandate is that notwithstanding the submission of
    those ROIs’, the AO would frame one assessment order in respect
    of each of the years which were made subject matter of the notice
    and which would deal with both disclosed and undisclosed
    income. This too reinforces our view that Section 153C would
    apply only to such AYs’ where the jurisdictional AO is satisfied
    and has incriminating material for those AYs’ and which may be
    concerned with disclosed and undisclosed income.

    xxxx xxxx xxxx

    61. A reading of the aforesaid Satisfaction Notes would establish
    that jurisdictional AOs’ appear to have proceeded on the premise
    that the moment incriminating material is unearthed in respect of
    a particular AY, they would have the jurisdiction and authority to
    invoke Section 153C in respect of all the assessment years which
    could otherwise form part of the ―relevant assessment year‖ as
    defined in Section 153A. In our considered opinion, the aforesaid
    understanding of Section 153C is clearly erroneous and
    unsustainable. As explained hereinabove, the discovery of
    material likely to implicate the assessee and impact the
    assessment of total income for a particular AY is not intended to
    set off a chain reaction or have a waterfall effect on all AYs’
    which could form part of the ―relevant assessment year‖. This,
    more so since none of the Satisfaction Notes record any reasons of

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    how that material is likely to materially influence the computation
    of income for those AYs’.

    62. Hypothetically speaking, it may be possible for the material
    recovered in the course of a search having the potential or the
    probability of constituting incriminating material for more than
    one assessment year. However, even if such a situation were
    assumed to arise, it would be incumbent upon the AO to duly
    record reasons in support of such a conclusion. The Satisfaction
    Notes would thus have to evidence a formation of opinion that the
    material is likely to be incriminating for more than a singular
    assessment year and thus warranting the drawl of Section 153C
    proceedings for years in addition to those to which the material
    may be directly relatable.‖
    (emphasis supplied)

    164. As seen from the above, even when the Assessing Officer is in
    possession of material which is likely to be incriminating for more than one
    assessment year, he has to necessarily record the reasons to reopen
    assessment qua each of the assessment years. It is only through such reasons
    recorded that a co-relation can be made between the material gathered
    during the search, and a particular assessment year. Any issuance of notice
    without fulfilling such jurisdictional mandate would amount to a „fishing
    and roving enquiry‟, which cannot be permitted.

    165. Since the reasons stated in the satisfaction note for AY 2013-14 are
    devoid of merit and as the Revenue cannot be permitted to justify issuance
    of notice for AY 2013-14 by relying upon the reasons recorded for the AY
    2016-17, it must be stated that the impugned notice for AY 2013-14 contains
    no reasons alleging the existence of income escaping assessment in the form
    of an asset. As such, the impugned notice dated 31.03.2024 under Section
    148
    of the Act for AY 2013-14, is bad in law and needs to be set aside.

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    166. Insofar as, AY 2015-16 is concerned, we have already reproduced the
    reasons provided for issuing the notice dated 31.03.2023 under Section 148
    of the Act, which clearly reveal that the reassessment has been initiated
    pursuant to evidence that has been unearthed during the search that suggest
    that there are receivables in the nature of reimbursement of the provisions
    for warranty. It has been stated that since such receivables have not been
    recorded in the books of the assessee, income has escaped assessment in the
    nature of an asset. We have already held that the receivables at the hand of
    the petitioner would be an asset for the purpose of Section 153A of the Act.
    As such, the notice dated 31.03.2023, for AY 2015-16 being within ten
    years of the end of the relevant assessment year 2015-16, meets the
    requirement under Section 153A and also Section 149(1) of the Act.
    Therefore, the said notice cannot be said to be beyond limitation. The
    challenge to the notices dated 31.03.2023 and 25.05.2023 along with the
    satisfaction note for AY 2015-16, therefore, cannot be sustained.

    167. Some of the arguments raised by the learned Senior Counsel for the
    petitioner with regard to the issue of receivables go into the merits of the
    case. The said arguments are enumerated as under:

    1) After ascertaining the actual expenses incurred for warranty
    claims, any unutilised portion of the provision would be written
    back to the profit and loss account of the petitioner;

    2) Even if the Associated Enterprise reimburses the provision for
    warranty or any part thereof, the same would be added to the
    taxable income of the petitioner for the year in which such
    reimbursement is actually made;

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    3) As the petitioner and the Associated Enterprise have been subject
    to transfer pricing, all the risks associated with the entities have
    been considered, and it is not necessary to consider anything
    further. Therefore, even if it is assumed that there were receivables
    due to the petitioner, it would not be an asset in transfer pricing
    cases;

    4) Since Arm‟s Length Price of the petitioner has been determined by
    way of Transaction Net Margin Method, which takes into account
    all eligible income before deciding the profit margin, there is no
    scope for further additions; and

    5) The Revenue has categorised provisions made for customer claims
    and warranty for subsequent AYs 2016-17, 2017-18 and 2018-19,
    as entries in books of accounts, and not as assets.

    168. Suffice it to state, we have decided issues raised by the petitioner
    within this narrow compass, i.e., whether the issuance of the notices for
    reassessments are bad in law being beyond limitation. Any adjudication on
    the submissions enumerated would require detailed examination of the
    accounts of the petitioners, and appreciation of evidence, which squarely fall
    within the domain of the Assessing Officer. It is not for this Court to step
    into the shoes of the Assessing Officer and decide these issues on merits
    under writ jurisdiction. As such, the petitioner may raise all these
    submissions before the Assessing Officer during the reassessment
    proceedings.

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    SPECIAL AUDIT

    169. Now we take up the challenges to the direction dated 13.09.2024 and
    08.10.2024 for special audits to be carried out on the accounts of the
    petitioner for AY 2013-14 and AY 2015-16. The reason provided by Mr.Rai
    justifying the impugned directions is that pursuant to the search under
    Section 132 of the Act, certain ERP data submitted by the petitioner
    revealed that there is significant contradiction between the data for two
    financial years. Further, there are lakhs of line items in the data dump, which
    have not been segregated into ledgers, making it voluminous and complex.

    170. There is no dispute that the special audits have been directed for the
    purpose of reassessment initiated for AY 2013-14 and AY 2015-16, as
    would be clear from the submissions of Mr. Rai noted in the paragraph Nos.
    60 to 62 above. If that be so, as we have set aside the notice for reassessment
    under Section 148 of the Act for AY 2013-14 for the want of jurisdiction/
    limitation, the direction and notice for special audit for that assessment year
    serve no purpose, and would not survive.

    171. Now we may examine the issue with regard to the direction for
    special audit for AY 2015-16. The primary submission of Mr. Datar and Mr.
    Gulati is that the purpose of Section 142(2A) of the Act is to provide an aid
    at the stage of assessment proceedings and the same cannot be invoked at
    the stage of re-assessment. According to them, the scope of re-assessment
    proceedings are limited to the extent of the scope of escaped income and
    therefore, special audit directions cannot be issued to audit to the entire
    books of account of the petitioner beyond the reasons/ information based on
    which such reassessment proceedings have been initiated.

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    172. We are not in agreement with the above submission for the reason that
    Section 2(8) of the Act defines „assessment‟ to include „reassessment‟.
    Further, it is settled law that once a notice under Section 143(2) of the Act is
    issued, the powers available to the Assessing Officer under re-assessment
    proceedings are analogous to those under assessment proceedings. Mr. Rai
    is justified in relying upon the judgment of this Court in the case of Shaily
    Juneja
    (supra) and Dart Infrabuild Pvt. Ltd. (supra), that since a return
    filed pursuant to a notice under Section 148 will be treated as a return under
    Section 139 and also since it is mandatory to issue a notice under Section
    143(2)
    of the Act even for reassessment, it needs to be inferred that all the
    powers are available to the Assessing Officer during the course of regular
    assessment are also available during reassessment proceedings.

    173. Another submission of the learned Senior Counsel for the petitioner is
    that the clerical error that had crept in the ERP data, i.e., duplication of
    entries for the financial years 2016-17 and 2017-18 was duly explained and
    rectified by the petitioner by furnishing the correct EPR data dump
    culminating into trial balance and profit and loss account, through e-mails
    dated 06.05.2023, 10.05.2022, 22.03.2023 and 01.04.2023. They have also
    claimed that alleged discrepancies do not automatically establish the
    requirement of „complexity‟ or „voluminous books of account‟. Further
    without examining the books of the accounts of the petitioner for the
    relevant period „complexity‟ or „doubts about the correctness of the
    accounts‟ cannot be presumed. Per contra, the submission of the learned
    Senior Standing Counsel for the Revenue is that the very words „volume of
    the accounts, doubts about the correctness of the accounts, multiplicity of
    transaction of the accounts or specialised nature of business activity of the

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    assessee’ that find mention in Section 142(2A) of the Act was introduced
    by the Finance Act, 2013 to expand the scope of the powers available to the
    Assessing Officer to ensure that there is a wide ambit by way of which the
    interests of the Revenue would be protected without hindering upon the
    rights of the assessee. He has substantiated his argument by reasons which
    we have already reproduced in paragraph no. 64 above.

    174. Additionally, it has also been stated in the notice dated 05.07.2024
    that while provisions made for warranty has been deducted, the petitioner
    had not clarified weather such liquidated damages are actually recoverable
    from the Associated Enterprise. It has also been stated that such expenses on
    account of warranty, according to Transfer Pricing Report is liability of the
    Associated Enterprise. We have already held that by virtue of the
    Distribution Agreement, the provisions for warranty claimed by the
    petitioner would be reimbursed by the Associated Enterprise.

    175. It has also been alleged that the petitioner has failed to provide its
    books of accounts, instead providing transactional level ERP data in
    Microsoft Excel format. It had also failed to keep a back-up of the digital
    books of accounts in India, accessible at all times and backed up daily, as
    required by law.

    176. The contention of the learned Senior Counsel for the petitioner that
    volume of accounts and multiplicity of transactions cannot be presumed
    merely on account of lakhs of line items in the ERP data, is completely
    unmerited, in view of the words ―volume of the accounts, doubts about the
    correctness of the accounts, multiplicity of transactions in the accounts or
    specialized nature of business activities of the Assessee‖ that find mention in
    Section 142(2A) of the Act.

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    177. The relevant Memorandum explaining provisions in the Finance Bill,
    2013, on which reliance has been placed by the petitioner itself, reads as
    under:

    ―Direction for special audit under sub-section (2A) of section
    142

    The existing provisions contained in sub-section (2A) of section
    142
    of the Income-tax Act, inter alia, provide that if at any stage
    of the proceeding, the Assessing Officer having regard to the
    nature and complexity of the accounts of the assessee and the
    interests of the revenue, is of the opinion that it is necessary so to
    do, he may, with the approval of the Chief Commissioner or
    Commissioner, direct the assessee to get his accounts audited by
    an accountant and to furnish a report of such audit.

    The expression ―nature and complexity of the accounts‖ has been
    interpreted in a very restrictive manner by various courts.
    It is, therefore, proposed to amend the aforesaid sub-section so as
    to provide that if at any stage of the proceedings before him, the
    Assessing Officer, having regard the nature and complexity of the
    accounts, volume of the accounts, doubts about the correctness of
    the accounts, multiplicity of transactions in the accounts or
    specialized nature of business activity of the assessee, and the
    interests of the revenue, is of the opinion that it is necessary so to
    do, he may, with the previous approval of the Chief Commissioner
    of the Commissioner, direct the assessee to get his accounts
    audited by an accountant and to furnish a report of such audit.‖

    178. It is clear from the above extract that as contended by Mr. Rai, the
    intent of the legislature in introducing the words ―volume of the accounts,
    doubts about the correctness of the accounts, multiplicity of transactions in
    the accounts or specialized nature of business activity of the assessee‖ was
    to expand the scope of the powers available to the Assessing Officer under
    Section 142(2A) of the Act, because the words ―nature and complexity‖
    which existed earlier were being given a restrictive meaning. As such, the

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    facts that the accounts of the petitioner are voluminous, and there is
    multiplicity of transactions in the accounts of the petitioner, would be
    sufficient for the Assessing Officer to exercise the power under Section
    142(2A)
    of the Act and direct the petitioner to have its accounts audited. Mr.
    Rai is justified in relying upon the judgment in the Takshashila Realities
    Private Limited (supra) wherein it was held that apart from the nature and
    complexity of accounts, even in case of multiplicity of transactions, in the
    accounts or specialised nature business activity of the assessee and the
    interests of the Revenue, the Assessing Officer can pass an order for special
    audit in exercise of powers conferred under Section 142(2A) of the Act.

    179. Additionally, since we have already held that the reassessment
    proceedings initiated under Section 148 of the Act for AY 2015-16 are not
    barred by limitation and have upheld the notice for the same, we are of the
    view that the challenge raised to the direction for special audit for AY 2015-
    16, is devoid of merit and needs to be rejected.

    180. Though the parties have referred to a host of judgments as noted
    above, in support of their contentions, in the facts of this case and in view of
    our discussion and conclusion above, the need is not felt to refer to them.

    OPERATIVE DIRECTIONS

    181. In view of the foregoing discussion, we direct the following:

    1. The notice dated 31.03.2024 issued under Section 148 of the Act and
    the notice dated 24.05.2024 issued under Section 143(2) of the Act
    along with the satisfaction note dated 29.05.2024, for initiating
    reassessment for AY 2013-14 are set aside.

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 107 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22

    2. Notice dated 31.03.2023 under Section 148 of the Act and notice
    dated 25.05.2023 issued under Section 143(2) of the Act along with
    the satisfaction note for initiating reassessment for AY 2015-16 are
    sustained.

    3. The special audit direction dated 13.09.2024 along with notices dated
    10.06.2024 and 05.07.2024 relatable to AY 2013-14 are set aside.

    4. The special audit direction dated 08.10.2024 along with notices dated
    10.06.2024 and 05.07.2024 relatable to AY 2015-16 are sustained.

    182. Consequently, W.P.(C) 13553/2024 and W.P.(C) 13572/2024 are
    allowed. W.P.(C) 14898/2024 and W.P.(C) 15970/2023 are dismissed.

    183. Interim orders, if any, stand vacated. The pending applications are
    disposed of.

    V. KAMESWAR RAO, J.

    VINOD KUMAR, J.

    MARCH 30, 2026
    M

    Signature Not Verified
    Signed By:PRADEEP WP(C) No.15970/2023 & Connected Page 108 of 108
    SHARMA
    Signing Date:30.03.2026
    15:19:22



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