ITA NO. 3196/DEL/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH “C”, NEW DELHI
BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT
AND
SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A. No. 3196/Del/2013
A.Y : 2008-09
M/s Global Heritage
Venture Ltd.,
(Formerly known as
M/s Krishna Buildwell
& Developers Pvt.
Ltd.),
12, Ring Road, Lajpat
Nagar-IV,
New Delhi – 110 024
(PAN: AACCK9842K)
VS.
DCIT, CENTRAL
CIRCLE-12,
JHANDEWALAN
EXTENSION,
ARA CENTRE,
NEW DELHI
(APPELLANT)
(RESPONDENT)
Assessee by
Department by
:
:
Sh. Sudesh Garg, Advocate
Sh. Vikram Sahai, Sr. DR
Date of Hearing : 16-12-2014
Date of Order :
26-12-2014
ORDER
PER H.S. SIDHU, JM:This is an appeal filed by the Assessee against the Order dated
12.3.2013 passed by the Ld. CIT(A)-XXXI, New Delhi pertaining to
assessment year 2008-09.
2.
The grounds raised in the Assessee’s Appeal read as under:-
1. That on the facts and circumstances of the case
and in law, the CIT(A) has erred in not holding that
the notice issued u/s. 153C and the assessment
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ITA NO. 3196/DEL/2013
order passed u/s. 143C/143(3) are illegal, bad in law
and without jurisdiction.
2. The order of the CIT(A) is bad in law as the CIT(A)
has not considered that the assessment order in
this case has not been passed on the basis of any
material seized in a search action taken under
section 132 of the I.T. Act, 1961.
3. The order of the CIT(A), on the facts and
circumstances of the case, the perverse as it does
not take into consideration the relevant documents
brought on record and submissions of the assessee.
4. The CIT(A) has erred on the facts and in law in
confirming the addition of Rs. 43,83,562/- made by
the AO in not allowing capitalization of interest.
5.
The CIT(A) has erred on the facts and in law in
not considering that the interest of Rs. 43,83,562/has been utilized for purchase of property at NBCC
Plaza, Pushp Vihar,
New Delhi and therefore the
interest paid ought to have been capitalized and
added to the cost of the Hotel.
6.
The assessee craves leaves to add, alter or
modify the aforesaid ground and craves leave to file
additional grounds.
7.
The aforesaid grounds are taken without
prejudice to each other.”
3.
Brief facts of the case are that a search and seizure operation
u/s. 132 of the I.T. Act was carried out in Rajdarbar Group of
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ITA NO. 3196/DEL/2013
Companies on 31.7.2008.
During search operation
certain
documents were seized which belong to the assessee company. The
case of the assessee was transferred to Central Circle-5, New Delhi
under section 127 of the I.T. Act, 1961.
4. Notice u/s. 153C of the I.T. Act, 1961 dated 10.3.2010 was issued
by the ACIT, CC-5, New Delhi to the assessee company, requiring it
to file the return for the assessment year 2008-09 but the same
returned unserved. Fresh notice u/s. 153C of the I.T. Act, 1961 dated
2.8.2010 was issued to the assessee company at the new address
supplied by the authorized representative of the assessee company,
requiring it to file the return for the asstt. year 2008-09. Return of
income for the asstt. year 2008-09 was filed by the assessee on
27.8.2010 declaring income of Rs. 5,85,330/-.
The return filed by
the assessee company is the same as that of e-filed u/s. 139 of the
Act on 25.2.2009. While completing the assessment, the Ld. AO has
held that the assessee company has received a sum of Rs. 100
crores from M/s Pramerica ASPFII Cyprus Holding Limited, 11,
Florinis Street Forum, 7th floor, 1065, Nicosia, Cyprus on account of
4% Fully & Mandatory Convertible Debentures. The assessee
company has paid interest on debentures to the tune of Rs.
43,83,532/- and capitalized the same in the cost of the hotel. The AO
held that the interest of Rs. 43,83,562/- paid to foreign company is
not allowed to be capitalized in the cost of the hotel.
5.
Against the aforesaid assessment order dated 27.12.2010
passed under section 153C/143(3) of the I.T. Act, 1961, assessee
appealed before the Ld. First Appellate Authority, who vide
impugned order dated 12.3.2013 while confirming the action of the
Assessing Officer has held that the AO has rightly assumed the
jurisdiction u/s. 153C and dismissed the appeal of the assessee
accordingly.
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ITA NO. 3196/DEL/2013
6.
Against the
impugned Order dated 12.3.2013 of the Ld.
CIT(A), Assessee filed an appeal before us.
7.
At the time of hearing, Ld. Counsel of the assessee, assailed
the impugned order and brought to our notice
the
‘Satisfaction
Note’ recorded in the case of the assessee for the assessment year
2008-09 which reads as under:-
“M/s Global Heritage Ventrues Pvt. Ltd.
Satisfaction note for proceedings u/s. 153C of the
Income Tax Act, 1961.
A Search
operation was conducted on Raj
Darbar Group of Cases on 31.7.2008. During the
course of Search operations at the premises of
1.
Party A-7 (Office of M/s Global Realty Ventrues
Pvt. Ltd., Narsi Value Creations Pvt. Ltd.,
Galaxy Nirmaan Pvt., True Zone Buildwell Pvt.
Ltd., 11, Ring Road, Lajpat Nagar-IV, New
Delhi).
2.
Party A-15 (Locker) (Restraint at Locker No.
347, Key No. 431, Central Bank of India, Kamla
Nagar, Agra UP in the name of Smt. Anita
Aggarwal)
Various
paper
were
found
and
seized
belonging to M/s Global Heritage Ventures Pvt.
Ltd. The annexure are marked as :
1. Party NO. A-7
Ann. A-5 pages 84-83, Ann.A-17,
Ann. A-22, Ann. A-30 pages 1-130, Ann. A-31
pages 1-135, Ann. A-32 Pages 1-367, Ann. A-41
pages 3-10, An. A-42 pages 1-241, Ann. A-44.
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ITA NO. 3196/DEL/2013
2. Party No. A-15 Ann.A-20, pages 28-39, 43, 44 46,
47, 49-52, Ann. A-21 pages 7 Ann. A-22 pages
10-13.
In view of the aforementioned facts, asstt.
proceedings u/s. 153C are warrants against the
assessee. Notices u/s. 153 are being issued.
Sd/(MAZHAR AKRAM)
Asstt. Commissioner of Income Tax,
Central Circle-5, New Delhi”
8.
The ld counsel submitted that the learned Commissioner of
Income Tax (Appeals) has erred both in law and on facts in failing to
appreciate that both the notice issued u/s 153C of the Act and,
assessment framed u/s 153A/143(3) of the Act were without
satisfying the statutory preconditions in the Act and as such, were
without jurisdiction and therefore, deserve to be quashed as such.
Further the ld counsel contended that the
AO does not really
indicate how and whether the vaguely indicated documents in the
satisfaction note were found to be belonging to the assessee within
the meaning of
section 153C of the Act;
No mention of these
documents in the assessment order ultimately passed under section
153C further lead to the conclusion that these documents had no
relevance or belongingness to the assessee.
The AO’s doesn’t even
vaguely record the satisfaction under section 153C, except the
words satisfaction in the heading satisfaction note
proceedings
under section 153C, at no other place word satisfaction has been
used. In the concluding line, Ld. AO merely mentions that in view of
the aforementioned facts, assessment proceedings under section
153C warrants against the assesee; Notices under section 153C are
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ITA NO. 3196/DEL/2013
being issued; there is no date recorded on the satisfaction note;
there is no recording / reference about the contents of these
documents allegedly pertaining to the assessee. Even in the
assessment order, no such mention has been made; no satisfaction
note has been recorded by the Assessing Officer of the entity /
entities from whose premises the documents etc. were seized (M/s
Global Realty Ventures Pvt. Ltd., Narsi Value Creations Pvt. Ltd.,
Lagaxy Nirmaan Pvt. Ltd., True Zone Buildwell Pvt. Ltd., Smt. Anita
Aggarwal and Sh. Nishant Aggarwal regarding the satisfaction of
that AO he found the documents belonged to the assessee.
Ld.
Counsel for the assessee further contended that it is necessary that
the satisfaction is recorded by the AO of the entity in whose case the
document / asset has been seized to the effect that the relevant
document / asset belong to the other person in whose case action
under section 153C is contemplated; it is essential to establish that
the document belongs to the person in whose case action u/s. 153C
is contemplated; and the AO of the entity before initiating process
under section 153C has to record a separate satisfaction that the
document / asset belong to the person in whose case action under
section 153C is required to be initiated and also he has to record
satisfaction that the document / asset have significance on the
assessment of income of the person in whose case action u/s. 153C
is required to the initiated, as a result of search notice issued u/s
153C of the Act was illegal, invalid and unsustainable and so bad in
law being without jurisdiction.
8.1
In support of his contention Ld. AR filed 02 Paper Books
containing pages 1 to 68
one
having the copy of written submission
filed before the CIT(A) dated 25.2.2013 and 11.3.20-13; Copy of
Annual Report for the year ending 31.3.2008; Copy of certified
Satisfaction Note and Copy of MOA. The Second one is the Paper
Book containing pages
1 to 166 having the written submissions;
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ITA NO. 3196/DEL/2013
copy of letter for inspection; copy of Satisfaction Note and copies of
various judgments of the Hon’ble High Court and ITAT which include
the copy of order of High Court in the case of PepsiCo India Holdings
(P) Ltd. (Pages 33-40 of the PB) and copy of order High Court in the
case of Pepsi Foods Pvt. Ltd. (Pages 41-55 of the PB).
8.2
Ld. DR relied upon the order passed by the Ld. CIT(A) and
stated that the First Appellate Authority has passed the impugned
order on the basis of the various documentary evidence which the
authorities has mentioned in the impugned order the AO has made
the additions in dispute on the basis of detailed enquiry as well as
the documentary evidence which has rightly been upheld by the Ld.
First Appellate Authority. He requested that the case laws cited by
the Ld. Counsel of the assessee is distinguishable on the facts of the
case of the assessee and are not applicable, therefore, the appeal
filed by the assessee may be dismissed.
9.
We have heard the rival submission and carefully gone through
the records and the case laws cited before us. The main issue raised
by
the
assessee
company
is
that
assumption
of
jurisdiction by the AO before issuing notice u/s 153C of the Act is not
in accordance to law and so the subsequent assessment is void-ab-
initio and should be quashed being quarum-non-judice. For
buttressing the said ground, the ld. counsel for the assessee brought
to our notice the law laid down by the Hon’ble jurisdictional High
Court in Pepsi Foods (P) Ltd. Vs. Asstt. CIT(WP(C) No. 415 of 2014
dated 07.08.2014. After examining the provision of Section 153C,
132 (4A)(i) and 292 (i)ii of the Act, the Hon’ble High Court had held
as under:-
"6. On a plain reading of Section 153C, it is evident that the
Assessing Officer of the searched person must be "satisfied"
that inter alia any document seized or requisitioned "belongs
to" a person other than the searched person. It is only then
that the Assessing Officer of the searched person can
7
ITA NO. 3196/DEL/2013
handover such document to the Assessing Officer having
jurisdiction over such other person (other than the searched
person). Furthermore, it is only after such handing over that
the Assessing Officer of such other person can issue a notice to
that person and assess or re-assess his income in accordance
with the provisions of Section 153A. Therefore, before a notice
under Section 153C can be issued two steps have to be taken.
The first step is that the Assessing Officer of the person who is
searched must arrive at a clear satisfaction that a document
seized from him does not belong to him but to some other
person. The second step is - after such satisfaction is arrived at
- that the document is handed over to the Assessing Officer of
the person to whom the said document "belongs". In the
present cases it as been urged on behalf of the petitioner that
the first step itself has not been fulfilled. For this purpose it
would be necessary to examine the provisions of presumptions
as indicated above. Section 132( 4A)(i) clearly stipulates that
when inter alia any document is found in the possession or
control of any person in the course of a search it may be
presumed that such document belongs to such person. It is
similarly provided in Section 292C (1)(i). In other words,
whenever a document is found from a person who is being
searched the normal presumption is that the said document
belongs to that person. It is for the Assessing Officer to rebut
that presumption and come to a conclusion or "satisfaction"
that the document in fact belongs to somebody else. There
must be some cogent material available with the Assessing
Officer before he/she arrives at the satisfaction that the seized
document does not belong to the searched person but to
somebody else. Surmise and conjecture cannot take the place
of "satisfaction".
"11. It is evident from the above satisfaction note that apart
from saying that the documents belonged to the petitioner and
that the Assessing Officer is satisfied that it is a fit case for
issuance of a notice under Section 153C, there is nothing
which would indicate as to how the presumptions which are to
be normally raised as indicated above, have been rebutted by
the Assessing Officer. Mere use or mention of the word
"satisfaction" or the words "I am satisfied" in the order or the
note would not meet the requirement of the concept of
satisfaction as used in Section 153C of the said Act. The
satisfaction note itself must display the reasons or basis for the
conclusion that the Assessing Officer of the searched person is
satisfied that the seized documents belong to a person other
than the searched person. We are afraid, that going through
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ITA NO. 3196/DEL/2013
the contents of the satisfaction note, we are unable to discern
any "satisfaction" of the kind required under Section 153C of
the said Act."
10.
In the light of the aforesaid order passed by the Hon’ble
Jurisdictional High Court, we are of the view that the first step
regarding the issuance of notice u/s. 153C has not been fulfilled,
therefore, the
notice u/s. 153C is illegal.
Exactly on the issue
involved in the present case the Ld. Counsel for the assessee has
also brought to our notice the order of the Coordinate Bench in the
case of V.K. Fiscal Services Pvt. Ltd. Vs. DCIT, Delhi in ITA No.54605465/Del/2012 in which the assessee assailed the assumption of
jurisdiction of the AO u/s 153C of the Act. In the said case also the
same AO on the same date on which the satisfaction note u/s 153C
has been recorded against the assessee, in the instant case before
us i.e. on 23.07.2010 made a ‘ditto’ copy
except change in the
name of the assessee, the satisfaction
note which is also
reproduced in Page 8 of the said order, which reads as under:
“"23.07.2010
M/ s V.K. Fiscal Services P. Ltd. (A. Y. 2008-09)
Satisfaction note for proceedings u/ s 153C of the Income Tax
Act. 1961
A search operation was conducted on Raj Darbar Group of
cases on 31.7.2008. During the course of search operations at
the premises of:
(i)
Party A-7, Global Reality Ventures P. Ltd.: various
papers were found and seized belonging to M/ s VK Fiscal
Services P. Ltd. The annexure are marked as under:
Party A-7: Annexure A-45 : Hard disc containing books of
accounts of M/ s VK Fiscal Services P. Ltd.
Thus the proceedings u/ s 153 C read with section 153A of the
Income Tax Act, 1961 are being initiated in the above case.
Sd/-
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ITA NO. 3196/DEL/2013
Deputy Commissioner of
Income Tax
Central Circle 12, New Delhi."
11.1.
A perusal of the Satisfaction Note demonstrates
that in the hard disk of one of the computers some accounts of
the assessee company were found. A print out of these books
have been furnished to us by the Ld. CIT,D.R. A perusal of the
print out show that page 1 is a "confirmation of accounts"
given by the assessee company M/s V.K. Fiscal Services P. Ltd.
to Global Reality Ventures Ltd., for the period is 1st April, 2008
to 31st March, 2009. As an attachment to this "confirmation of
account", V.K. Fiscal Services P. Ltd. Has given a copy of ABN
Amro Bank (626643) books, copy of trial balance, copy of profit
and loss a/c, copy of balance sheet, copy of a party of the cash
book, for the period of six months i.e. the period for which it
had transactions with Global Reality Ventures, copy of ledger
account of Global Reality Ventures and copy of Indian
Overseas Bank (7556) ledger account. These in our view are
not books of account belonging to the assessee, as sought to
have been made out in the Satisfaction Note. This
demonstrates that, the Satisfaction Note which says that books
of accounts are contained in the hard disk, is a wrong
recording of facts. The entire cash book or the bank book is not
available in the hard disk. What was available in the hard disk
was confirmation of accounts given by the assessee to Global
Reality Ventures and statement of accounts, ledger etc. in
support of the same. The relevant portion of the cash book,
where the entries of Global Reality Ventures Ltd. are recorded
was also there in the hard disk. Thus to hold that the hard disk
contains books of accounts of M/s V.K. Fiscal Services P. Ltd. is
prima facie wrong. Thus, in our view no money, bullion,
jewellery or other valuable articles or books of accounts or
documents seized belong to the assessee, warranting issual of
notice u/s 153’C'.
11.2.
Hence we uphold the contention of the assessee
that the issual of notice u/s 153'C', under the facts and
circumstances, is bad in law.”
11.
We also take note of the recent judgement of the Hon’ble
jurisdictional High Court in a similar case in Pepsico India Holdings
(P) Ltd Vs. ACIT (2014) 50 Taxmann. Com 299 (Delhi), after
considering the decisions cited by the Revenue held as under:10
ITA NO. 3196/DEL/2013
“5. While coming to the aforesaid conclusions the court had
also examined the decisions which had been cited on behalf of
the Revenue and which are, once again, being reiterated by
the learned counsel for the Revenue before us. Those decisions
are Kamleshbhai Dharamshibhai Patel v. CIT [2013] 214
Taxman 558/31 taxmann.com 50 (Guj.); ClT v. Classic
Enterprises [2013] 358 ITR 465/219 Taxman 237/35
taxmann.com 244 (All.) and a decision of a Division Bench of
this Court in SSP Aviation Ltd. v. Dy. CIT [2012] 346 ITR
177/207 Taxman 260/20 taxmann.com 214. This Court had
indicated in its judgement in Pepsi Foods (P.) Ltd. (supra) that
the case of Kamleshbhai Dharamshibhai Patel (supra) was
distinguishable on facts. Those observations would apply to the
present writ petitions also. As regards the decision of the
Allahabad High Court in Classic Enterprises (supra), this Court
had indicated that it could not agree with the conclusions and
observations of the Allahabad High Court inasmuch as the
decision of the Allahabad High Court was premised on a
consideration of the provisions of Section 158BD of the said
Act which are entirely different from the provisions of Section
153C of the said Act. Furthermore, with regard to the decision
in SSP Aviation Ltd. (supra), this court had noted that the said
decision does not militate against the view taken in Pepsi
Foods (P.) Ltd. (supra).
6.
The learned counsel for the Revenue has cited an
additional decision before us today and that is the case of
Sarvesh Kumar Agarwal v. Union of India [2013] 353 ITR
26/216 Taxman 109 (Mag.)/35 taxmann.com 85 (AIl). This
decision also, in our view, does not advance the case of the
Revenue. This would be evident from the observations of the
Allahabad High Court in paragraphs 19 to 21 of the said
decision, which read as under:
"19. In Manish Maheshwari’s case (Supra) the Supreme
Court observed that taxing statute must be constructed
strictly. The Court, however, shall not interpret statutory
provisions in such a manner, which would create an
additional physical burden on a person. In case of any
doubt or dispute, construction is to be made in favour of
the tax payer and against the revenue.
20. In the present case we do not find anything wrong
in the satisfaction note and the forwarding of the entire
matter by the Income Tax Officer, Ward-Ill (2),
Ahmedabad to the Assessing Officer of the petitioner at
Bareilly. All the requirements of Section 153(c) were
complied with by the Income Tax Officer, Ward-Ill (2),
Ahmedabad. A search under Section 132A was carried
11
ITA NO. 3196/DEL/2013
out and bullion was seized. The case was selected for
compulsory scrutiny for six assessment years. The
assessee established that the seized silver belongs to M/s
Sarvesh Jewellers, Bareilly - the petitioner. The ownership
and consignment of the petitioner was also confirmed by
the Assessing Officer of the petitioner at Bareilly. The
Income Tax Officer, Ward-Ill (2), Ahmedabad did not
commit any error in law, in recording the satisfaction
note requesting the petitioner’s Assessing officer to
proceed under Section 153(c) of the LT. Act.
21. After the assessment of the person in respect of
whom search action was carried out is completed, the
officer under Section 153C, where he find that seized
articles belong to some other person, has to forward a
satisfaction note to the Assessing Officer on such person.
The satisfaction in such case is in respect of the material
and disclosures of the person with which the articles or
assets are found and not in respect of the person who
whom they belong."(Underlining Added)
7.
The above extract makes it clear that a taxing statute
must be construed strictly and in the case of a doubt or dispute
the construction in favour of the assessee has to be adopted.
Apart from this, the material observation of the Allahabad High
Court in the case of Savesh Kumar Agarwal (supra) is to be
found in paragraph 20 thereof where it has been observed that
the assessee established that the seized silver belongs to M/s.
Sarvesh Jewellers, Bareilly - the petitioner. In other words, the
person from whom the bullion was seized was able to establish
that it did not belong to him but to Sarvesh Jewellers. It is in
that context that the provisions of Section 153C of the Act
were invoked inasmuch as the Assessing Officer would then be
considered as having been satisfied that the bullion which was
seized from the searched person did not belong to the
searched person but to some other person (in that case M/s.
Sarvesh Jewellers, Bareilly).
8.
From the foregoing discussion it is evident that in order
that the Assessing Officer of the searched person comes to the
satisfaction that documents or materials found during the
search belong to a person other than the searched person, it is
necessary that he arrives at the satisfaction that the said
documents or materials do not belong to the searched person.
We may point out that in the course of the arguments we had
asked the learned counsel for the Revenue as to whether the
documents in question had been disclaimed by the Jaipuria
Group. The learned counsel for the Revenue, on instructions,
states that this was not the case. In other words, it follows that
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ITA NO. 3196/DEL/2013
the Jaipuria Group did not say that the documents did not
belong to them.”
12.
The Hon’ble Delhi High Court further held as under:-
“13. Having set out the position in law in the decision of this
Court in the case of Pepsi Foods Pvt. Ltd. (supra), it must be
seen as to whether the Assessing Officer of the searched
person (the Jaipuria Group) could be said to have arrived at a
satisfaction that the documents mentioned above belonged to
the petitioners.
14. First of all we may point out, once again, that it is
nobody"s case that the Jaipuria Group had disclaimed these
documents as belonging to them. Unless and until it is
established that the documents do not belong to the searched
person, the provisions of Section 153C of the said Act do not
get attracted because the very expression used in Section
153C of the said Act is that "where the Assessing Officer is
satisfied that any money, bullion, jewellery or other valuable
article or thing or books of account or documents seized or
requisitioned belongs or belong to a person other than the
person referred to in section 153A .... " In view of this phrase, it
is necessary that before the provisions of Section 153C of the
said Act can be invoked, the Assessing Officer of the searched
person must be satisfied that the seized material (which
includes documents) does not belong to the person referred to
in Section 153A (i.e., the searched person). In the Satisfaction
Note, which is the subject matter of these writ petitions, there
is nothing therein to indicate that the seized documents do not
belong to the Jaipuria Group. This is even apart from the fact
that, as we have noted above, there is no disclaimer on the
part of the Jaipuria Group insofar as these documents are
concerned.
15. Secondly, we may also observe that the finding of
photocopies in the possession of a searched person does not
necessarily mean and imply that they "belong" to the person
who holds the originals. Possession of documents and
possession of photocopies of documents are two separate
things. While the Jaipuria Group may be the owner of the
photocopies of the documents it is quite possible that the
originals may be owned by some other person. Unless it is
established that the documents in question, whether they be
photocopies or originals, do not belong to the searched person,
the question of invoking Section 153C of the said Act does not
arise.
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ITA NO. 3196/DEL/2013
16. Thirdly, we would also like to make it clear that the
assessing officers should not confuse the expression "belongs
to" with the expressions "relates to" or "refers to". A registered
sale deed, for example, "belongs to" the purchaser of the
property although it obviously "relates to" or "refers to" the
vendor. In this example if the purchasers premises are
searched and the registered sale deed is seized, it cannot be
said that it "belongs to" the vendor just because his name is
mentioned in the document. In the converse case if the
vendor’s premises are searched and a copy of the sale deed is
seized, it cannot be said that the said copy "belongs to" the
purchaser just because it refers to him and he (the purchaser)
holds the original sale deed. In this light, it is obvious that none
of the three sets of documents - copies of preference shares,
unsigned leaves of cheque books and the copy of the supply
and loan agreement - can be said to "belong to" the petitioner.
17. In view of the foregoing discussion, we do not find that
the ingredients of Section 153C of the said Act have been
satisfied in this case. Consequently the notices dated
02.08.2013 issued under Section 153C of the said Act are
quashed. Accordingly all proceedings pursuant thereto stand
quashed.
18. The writ petitions are allowed as above. There shall be no
orders as to costs.”
13.
Keeping in view of the aforesaid discussions with support of
the case law on the issue in dispute alongwith the provisions of law,
we are of the view that the issue in dispute has already been
adjudicated and decided in favor
of the assesse by the Hon’ble
Jurisdictional High Court in the case of Pepsico India Holdings (P) Ltd
Vs. ACIT (2014) 50 Taxmann. Com 299 (Delhi).
We are also of the
view that the same decision of the Hon’ble High Court has also been
followed by the Coordinate Benches of the Tribunal.
Therefore,
respectfully following the decision of the Hon’ble Jurisdictional High
Court in the case of Pepsico India Holdings (P) Ltd. (Supra), we are of
the view that the AO does not have
assumption for framing the
assessment u/s. 153C read with section 153A of the I.T. Act. The AO
lacks the jurisdiction to initiate the proceedings u/s. 153C against
the assessee and therefore, the issuance of notice itself is null and
14
ITA NO. 3196/DEL/2013
void as well as the impugned order passed by the Ld. CIT(A) is also
nullity and hence, the same is quashed as such.
14.
Since we have quashed the notice u/s 153C of the Act itself,
the other grounds are not adjudicated being academic.
15.
In the result the appeal preferred by the assessee is allowed.
Order pronounced in the Open Court
26-12-2014.
Sd/-
Sd/-
[G.D. AGRAWAL]
VICE PRESIDENT
Date 26/12/2014
[H.S. SIDHU]
JUDICIAL MEMBER
“SRBHATNAGAR”
Copy forwarded to: 1.
2.
3.
4.
5.
Appellant Respondent CIT
CIT (A)
DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
15
ITA NO. 3196/DEL/2013
16