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2. The first inter connected jurisdictional issue raised by assessee against the order of CIT(A) confirming the action of the AO in reopening the assessment by invoking the provisions of section 147 of the Act, despite the fact that on search under section 132 of the Act dated 10-01- 2011 conducted on the office premises of Lodha Developers Limited, whether from shares subscription comes share holder agreement date 10-05-2007 was ceased. For this assessee has raised following ground No. 2 and 3: -

3. Brief facts relating to this issue are that assessee filed its return of income on 28.09.2008. The assessee claimed that it has declared in the return of income "Shareholder's fund" that its issued, Subscribed and Paid up" capital at Rs. 28,63,82,938/- comprising of share capital of Rs. 2,06,080/- and share premium of Rs. 28,61,76,858/-. The AO reopened the assessment u/s 148 of the I.T Act, by recording the following reasons:-

"During the course of search proceedings at the office premises of M/s. Lodha Developers Ltd, Lodha Pavilion, Appolo Mills Compound, N M Joshi Marg, Mahalaxmi, Mumbai-400011 a file containing loose papers Annexure A/1 numbered 1-24 were seized. On perusal of this loose paper' especially Page No. 1 to 22 it is observed that Mr. Samayak Veera and assessee company have entered into an agreement on 10-05- 2007 Vide this agreement Mr. Samayak Veera invested of Rs. 28,61,86,858/- by way of 1% deemable preference shares of ₹ 10/- each and premium of Rs.2,86,176.86/- per share and 9,608 shares of Rs 10/- each at par. At this juncture, it needs to be mentioned that Mr. Samayak Veera is a Non Resident person and considering his contribution by way of preference shares he is an associate enterprise within the meaning of section 92A of the I.T. Act, 1961. Further, assessee has not filed any report in Form 3CEB as required by provisions of section 92E of l.T. Act, 1961. As a result no arm's length price is determined in result of this transaction and the creditworthiness of the investor and genuineness of the transaction remains unproved. In the backdrop of above facts, the undersigned has reasons to believe that the income has escaped assessment within the meaning of section 147 of the Income Tax Act, 1961 for the A.Y 2008-09 to the extent of transaction mentioned above. Therefore, notice u/s 148 is issued."

4. The assessee objected to the assumption of jurisdiction for reopening of assessment. For this assessee stated that the undisputed facts in its case are that a file containing loose papers has been found during the course of search action at the premises of Lodha Developers Limited. For such circumstances, there are separate and complete mechanism stated in section 153A to 153C of the Act dealing with the search cases which needs to be followed. Therefore, in the cases of search action, recourse to section 148 of the Act cannot be taken. The assessee raised the issue that the provisions of Section 153C of the Act were applicable on the facts of the case and there was no proof that the income of the assessee has escaped assessment justifying the reopening of assessment u/s 148 r.w.s.147 of the Act. It was claimed that the impugned amount was received on capital account and cannot be termed as taxable income of the assessee. It was also claimed that the AO has reopened the assessment for the purpose of making a roving and fishing inquiry to verify as to whether any income has in fact escaped assessment. There was no obligation to file Form 3CEB. Alternatively, non-filing of Form 3CEB cannot constitute the reason to believe that the income chargeable to tax has escaped assessment. But the AO has not accepted the contention of the assessee and assumed jurisdiction for reopening of assessment. Aggrieved, assessee preferred appeal before CIT(A).

11. We have heard rival contentions and gone through facts and circumstances of the case. Let us examine, whether the assessment is to be framed u/s 153C of the Act or u/s 148 r.w.s. 147 & 143(3) of the Act. The provisions of section 153A, 153B and 153C of the Act provides for new scheme of assessment of cases where the search has taken place on or after 31.05. 2003. In the present the search action took place in January. 2011. Hence, the same has to be governed by the new sections/scheme. We find that during the course of search in the case of Lodha Developers Limited a file containing loose papers Annexure-A/1-1 to 24 was found and seized. On perusal of this loose paper it is noticed by the Revenue that one Mr. Samayak Veera and assessee company entered into an agreement dated 10.05.2007, whereby Mr. Samayak Veera has invested a sum of ₹ 28,61,86,858 by way of 1% redeemable preference share of ₹ 10 each at a premium of ₹ 2,86,176 per share. The total shares were at 9608 shares of ₹ 10 each at par. According to assessee, this document seized during the search 132 of the Act in the case of Lodha Developers Limited, if at all is to be considered the same should have considered while framing assessment under section 153C of the Act. But, now no assessment under section 153C was framed in the case by the Revenue, we need not to go into the legal aspect whether the assessment is to be done under section 153C of the Act based on material found during the course of search at a third party's premises.