1. law, govt and politics

THE INCOME TAX APPELLATE TRIBUNAL IN
(DELHI BENCH “C” NEW DELHI)
BEFORE SHRI S.V.MEHROTRA, ACCOUNTANT MEMBER
AND
SHRI KUL BHARAT, JUDICIAL MEMBER
ITA NO. 6404 to 6409 /DEL/2013
(A.Y. 2003-04, 2004-05, 2005-06, 2006-07, 2007-08, 2008-09 )
DCIT
Central Circle – 21
New Delhi
Vs.
IECS Solutions Pvt. Ltd.
A1/82, 2nd Floor,
Hastal Road, Uttam Nagar
New Delhi
PAN No. AAACI8676F
C.O. No. 353 to 358 /DEL/2014
In ITA No. 6404 to 6409/DEL/2013
(A.Y. 2003-04, 2004-05, 2005-06, 2006-07, 2007-08, 2008-09)
IECS Solutions Pvt. Ltd.
A1/82, 2nd Floor,
Hastal Road, Uttam Nagar
New Delhi
PAN No. AAACI8676F
(Applicant)
Vs.
DCIT
Central Circle – 21
New Delh
(Respondent)
ITA NO. 6404 to 6409 /DEL/2013
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C.O. No. 353 to 358 /DEL/2014
REVENUE BY
ASSESSEE BY
:
:
Sh. Kapil Goal, Adv.
Sh. Gunjan Prasad, CIT, DR
Date of hearing
Date of pronouncement
:
:
04.03.2015
13 .03.2015
ORDER
PER BENCH :
These six appeals by the Revenue and equal number of cross
objections by the Assessee are directed against the separate orders
of Ld. Commissioner of Income Tax (Appeal) – II, New Delhi in short
here in after refer to as the CIT(A) dated 4th Separate, 2013 and 5th
September, 2013 respectively and pertaining to the Assessment
Years 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09
respectively. All the appeals of the Revenue and cross objections of
the Assessee raises identical grounds and arise from the similar facts
and circumstances, therefore, all were taken up for hearing together
and are being disposed of by way of consolidated order for the sake
convenience.
2.
Since the facts and circumstances are similar in all these
appeals and identical grounds have been raised. We take up
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C.O. No. 353 to 358 /DEL/2014
Revenue’s appeal pertaining to Assessment Year 2003-04 in ITA No.
6404/Del/2013 and cross objection no. 353/Del/2014 in ITA No.
6404/Del/2013 Assessment Year 2003-04 as lead case for the
purpose of narrating facts. In ITA No. 6404/Del/2013, the Revenue
has raised the following grounds :
“1. The Commissioner of Income Tax (Appeal) erred in
law and on facts in deleting the addition of Rs. 15,01,580/on account of unexplained purchase u/s 69C of the Act.
2. The Commissioner of Income Tax (Appeal) erred in law
and on facts in deleting the addition of Rs. 4,62,316/- on
account disallowance of expenditure.
3.
(a) The order of the CIT(A) is erroneous and not
tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend
any/all of the grounds of appeal before or during the course
of the hearing of the appeal.”
However, the assessee in Cross Objection no. 353/Del/2014 has
raised the following grounds :
“1. That on the facts and circumstances of the case and the
provision of law, the Ld. CIT (A) has failed to appreciate
that the notice issued uls 153C and assessment order
passed by the Ld. AO u/s. 153C/143(3) is illegal, bad in
law, time barred, without jurisdiction and wrong on facts.
The additions made are unjust, unlawful and arbitrary and
are made against the principles of natural justice.
2. That on the facts and circumstances of the case and the
provisions of law, the Ld. CIT(A) has failed to appreciate
that the Ld. AO was not justified to ignore the submissions
of the appellant that the assessment proceedings for the
year under appeal was not pending on the date of the
recording of satisfaction u/s. 153C and since the same
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C.O. No. 353 to 358 /DEL/2014
3.
4.
5.
6.
7.
didn't abate, the proceedings u/s. 153C of the LT. Act in
this case are bad in law and deserves to be quashed.
That on the facts and circumstances of the case and the
provisions of law, the Ld CIT (A) has failed to appreciate
that the assessment framed by Ld. AO is against the
statutory provisions of the Act and without complying the
procedures prescribed u/s. 153C of the I.T. Act and as
such the assessment being bad in law deserves to be
quashed.
That on the facts and circumstances of the case and the
provisions of law, the Ld CIT (A) has failed to appreciate
that the Ld AO was not justified to ignore the submissions
of the appellant that assessment u/s 153C of the Income
Tax Act be restricted to assessment in respect of seized
documents of incriminating nature in the case of the
appellant for only theyear to which said documents relates
to, and in absence of any such incriminating seized
document in the case of appellant; assessment framed
u/s. 153C of the I.T. Act for the year under consideration, is
bad in law and deserve to be quashed.
That on the facts and circumstances of the case and the
provision of law, the Ld CIT (A) has erred in holding the
conclusion that the 'audited books' notwithstanding, the
book results are required to be rejected, since the
narrations are artificial, sham and not reflective of the
actual business / commercial transactions. However, the
Ld CIT (A) still relying on these books / book results for
giving directions to the AO for the purpose of calculating
the peak from the entries in the cash book of the appellant
for the relevant year.
That in view of the facts and circumstances of the case,
CIT (A) has erred in disregarding the purchases of Rs.
15,01,580/-, the sales and the expenses of Rs 4,62,316/claimed by the assessee company.
A) That on the facts and on the circumstances of the case
and the provision of law, the Ld. CIT (A) has erred in
wrongly directing the AO to work out the peak from the
entries in the cash book of the appellant company for the
relevant year and make a singular addition of the said
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amount, as unexplained investment/expenditure, ignoring
the fact that the same has duly been entered in the audited
books of accounts of the appellant for the year under
consideration;
B) That the Ld CIT (A) did not give sufficient opportunity of
being heard to the appellant company and ignored the
concept of 'Real Income' and wrongly directed the AO to
work out the peak from the entries in the cash book of the
appellant company for the relevant year, without granting
the credit of the peak of financial transactions as per the
cash book for the preceding years.
8. That on the facts and on the circumstances of the case and
the provision of law, the CIT (A) has erred in ignoring the
fact that the AO has erred both on facts and in law, in using
statement of various persons without giving a copy of the
same and opportunity to cross examine.
9. That on the facts and circumstances of the case, the
various observations and findings of the Ld CIT (A) and Ld
AO in the impugned appellate order and assessment order,
respectively, is irrelevant and vitiated in the law.
10. That the CIT (A) has erred in ignoring the explanation
given, evidences and material placed and available on
record. The same has not been properly considered and
judicially interpreted and the same do not justify the
additions/disallowances made. The additions have been
sustained with preset mind of the CIT (A) and her order is
based on surmises, conjectures and suspicion.
11. That on the facts and circumstances of the case the interest
charged u/s 234A and 234 B has been wrongly and illegally
charged and in any case is highly excessive.
12. That the respondent craves the right to amend, append,
delete any or all grounds of appeal.”
3.
Briefly stated facts are that a search action under Section
132 of the Income Tax Act, 1961 (herein after refer to as the Act) was
carried out at the business and residential
premises of Shri
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C.O. No. 353 to 358 /DEL/2014
B.K.Dhingra, Mrs. Poonam Dhingra and M/s Madhusudan Buildcon
Pvt. Ltd. on 20.10.2008. During the course of search at residential
premises F- 6/5, Vasant Vihar, New Delhi, certain documents alleged
to have been recovered belonging to the Assessee. Accordingly, the
Assessing Officer initiated proceeding under Section 153C of the Act.
The
Assessing
Officer
framed
assessment
under
Section
153C/143(3) of the Act thereby the Assessing Officer made addition
u/s 68 and 69C of the Act on account of unexplained expenditure and
investment amounting to Rs. 15,01,580/- and 4,62,316 respectively.
Against this the Assessee filed an appeal before Ld. CIT(A) who after
considering the submissions of the Assessee rejected the grounds
raised against the validity of proceedings under Section 153C,
however on merit Ld. CIT(A) modified the Assessment order by
directing the AO to work out the peak from the enteries in the cash
book of the Assessee for the relevant year and make a singular
addition of the said amount as unexplained investment/expenditure.
The Revenue and Assessee have assailed this order before this
Tribunal by way of Appeal and cross objection respectively.
4.
At the outset, Ld. Counsel for the Assessee submitted that the
Ld. CIT(A) failed to take note of the fact that the Assessing Officer of
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the searched persons grossly failed to record his satisfaction as
envisaged under Section 153C of the Act. He submitted that
recording of satisfaction by the AO of searched party is sine qua non
for assuming jurisdiction for making assessment under 153C read
with section 143(3) of the Act. He submitted that under the identical
facts the Assessment framed u/s 153C of the Act has been quashed
by the co-ordinate Benches of this Tribunal following the judgment of
Jurisdictional High Court rendered in the case of Pepsi Foods (P) Ltd.
Vs. ACIT [2014] 50 taxman.com 220(Delhi).
Therefore, he requested that the matter may be decided on this
ground alone. Ld. CIT(DR) submitted that he has no objection,
however he pointed out that the Assessee has not taken any specific
ground in his cross objection against satisfaction note. Admittedly,
there is no specific
ground against non-recording of satisfaction
(satisfaction note) by the Assessing Officer, however same goes to
the issue of jurisdiction because satisfaction of the AO of searched
party that any money, bullion, jewellery or other valuable article or
thing or books of accounts or documents seized on requisitioned
belong to a person other than the person referred to in Section 153A,
then the books of accounts or documents or assets or requisitioned
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C.O. No. 353 to 358 /DEL/2014
shall be handed over to the Assessing Officer having jurisdiction of
such other person and that the Assessing Officer shall proceed
against each such other person and issue such other person notice
and assess or reassess income of such other person in accordance
with provision of Section 153A of the Act. Therefore, the satisfaction
as envisage under Section 153C of the Act, would confer jurisdiction
upon the Assessing Officer of the Assessee to proceed against it u/s
153C of the Act. Therefore, we take up for adjudication ground no. 3
of C.O. that reads as under :“That on the facts and circumstances of the case and the
provisions of law, the Ld. CIT(A) has failed to appreciate
that the assessment framed by Ld. AO is against the
statutory provisions of the Act and without complying the
procedures prescribed u/s 153C of the I.T.Act and as
such the assessment being bad in law deserves to be
quashed.”
We proceed to decide this ground first, to examine whether in
the absence of satisfaction note, by the AO of the searched party the
proceedings initiated u/s 153C and assessment framed thereunder
are bad in law and as such the assessment so framed is
unsustainable and nullity in the eyes of law.
5.
ARGUMENTS OF THE ASSESSEE
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
Ld. Counsel for the assessee submitted that the information furnished
by the Revenue under the Right to Information Act, reveals that the
AO of the searched party has not recorded any satisfaction. He drew
our attention to paper book pages no. 12-15, wherein the reply
received under the Right to Information Act are inclosed. Ld. Counsel
for the assessee reiterated the submission made in brief synopsis
inclosed in Paper Book at page 1 to 6. He submitted that the
Revenue has not controverted the factum of information and its
contents furnished under the Right to Information Act. Therefore, he
contends that the admitted position is that no satisfaction is recorded
by the AO of the searched party hence in the light of ratio laid by the
Hon’ble Delhi High Court in the case of Pepsi co Food (P) Ltd.
(supra) the assessment as framed u/s 153C read with section 143(3)
deserves to be quashed.
6.
ARGUMENTS OF REVENUE :
Sh. Gunjan Prasad Ld. CIT(DR), vehemently argued that there is no
requirement under the law of recording of satisfaction by the
Assessing Officer of searched person. The satisfaction of Assessing
Officer of the searched party can be inferred by implication i.e. by the
conduct of AO. He further submitted that there is no ambiguity in the
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C.O. No. 353 to 358 /DEL/2014
provision, therefore, the literal meaning should be adopted for
interpreting the same. He drew our attention to Section 148(2) and
153(C) of the Act to buttress his contention that had such intention of
legislation would have been then as the word ‘record’ as enshrined in
Section 148(2) would have been Incorporated in Section 153(C) as
well. He submitted that the entire assessment cannot be annulled on
the basis of technical defect. He submitted that technicalities should
not hold the dispensation of justice, and cannot be allowed to benefit
a wrong doer. He further pointed out that the assessee is blowing hot
and cold at the same time. He submitted that Ld. CIT(A) in para 4.3 of
the impugned order has categorically recorded that the Assessee has
no objection with regard to initiation of proceeding u/s 153C of the
Act. He submitted that under these facts the issue under
consideration does not need any further examination and decision by
this Tribunal.
In rejoinder Ld. Counsel for the Assessee submitted that the objection
of Ld. CIT(DR) are misconceived. He submitted that the issue under
consideration goes to very root of jurisdiction of the Assessing
Officer. He submitted that without admitting even if it is presumed that
the observation of the Ld. CIT(A) is correct, the law is well settled
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C.O. No. 353 to 358 /DEL/2014
that the Jurisdiction cannot be conferred by the consent of the
parties. He further submitted that in view of the binding precedents of
the Jurisdictional High Court and the co-ordinate benches of this
Tribunal the Assessment framed under Section 153C of the Act
cannot be sustained. He submitted that the assessment so framed is
without Authority of law and deserves to be quashed.
7.
We have heard the rival contentions, perused the material
available on record, gone through the orders of the Authorities below
and case laws cited by the Respectives Representatives of the
parties. We find the opening para of the Assessment order reads as
under :
“Search & seizure action u/s 132 of the I.T. Act was
carried out in the cases of Sh. B.K.Dhingra, Smt. Poonam
Dhingra & M/s Madhusudan Buildcon Pvt. Ltd. on
20/10/2008 and during the course of search at their
residential premises at F-[6/5, Vasant Vihar, New Delhi
certain documents belonging to the assessee were seized.
On the basis of documents so found belonging to the
assessee company, proceedings were initiated in the case
of the assessee company u/s 153C read with section 153A
of the I.T.Act. The case of assessee was initially
centralized with ACIT, Central Circle-7 u/s 127 of the
I.T.Act by Commissioner of Income Tax, Delhi-IV, New
Delhi vide order F.No. CIT-IV/Cent./121/2009-10/1343
dated 30.07.2010. Notice u/s 153C dated 14.09.2010 was
issued to the assessee by the ACIT, CC-17, New Delhi
requiring the assessee company to file return of income
within 15 days of service of the notice.”
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C.O. No. 353 to 358 /DEL/2014
7.1
From the above it is evident the basis of initiating proceeding
u/s 153C is that certain documents belonging to the assessee
company were found at the searched premises bearing no. F 6/5
Vasant Vihar, New Delhi in the case of Sh. B.K.Dhingra, Smt.
Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. belonging
to the assesssee. The contention of Ld. Counsel is that the AO of the
searched party should have recorded satisfaction but from the replies
furnished under the Right to Information Act no such satisfaction was
recorded. The contents of reply furnished by Revenue reads as under
:“2.
3.
From the assessment records of Sh. Bhupesh Kumar
Dhingra, which is covered under section153A, for the Asstt.
Years from 2003-04 to 2008-09 (Block period) it is noticed
that there is no ‘satisfaction note’available/recorded in
respect of other entities.
In case you intend to file the appeal, you may file the same
before the Addl. Commissioner of Income Tax, Central
Regnge-2, 3rd Floor, ARA Center, E-2, Jhandewalan, New
Delhi within 30 days from receipt of this letter.”
The above replies supports the contention of Ld. Counsel for the
Assessee that no satisfaction was recorded by the AO of the
searched party.
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C.O. No. 353 to 358 /DEL/2014
7.2.
Before adverting to the rival contentions of the parties it would
be appropriate to reproduce the relevant provisions of law.
Section 153C
153C. 3[(1)] Notwithstanding anything contained in section
139, section 147, section 148, section 149, section 151 and
section 153, 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, then the books of
account or documents or assets seized or requisitioned
shall be handed over to the Assessing Officer having
jurisdiction over such other person 3a[and that Assessing
Officer shall proceed against each such other person and
issue notice and assess or reassess the income of the
other person in accordance with the provisions of section
153A, if, that Assessing Officer is satisfied that the books of
account or documents or assets seized or requisitioned
have a bearing on the determination of the total income of
such other person for the relevant assessment year or
years referred to in sub-section (1) of section 153A] :]
[Provided that in case of such other person, the reference to
the date of initiation of the search under section 132 or
making of requisition under section 132A in the second
proviso to 82[sub-section (1) of] section 153A shall be
construed as reference to the date of receiving the books
of account or documents or assets seized or requisitioned
by the Assessing Officer having jurisdiction over such other
person.]
83
[(2) Where books of account or documents or assets seized or
requisitioned as referred to in sub-section (1) has or have
been received by the Assessing Officer having jurisdiction
over such other person after the due date for furnishing the
return of income for the assessment year relevant to the
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C.O. No. 353 to 358 /DEL/2014
previous year in which search is conducted under section
132 or requisition is made under section 132A and in
respect of such assessment year—
(a) no return of income has been furnished by such other
person and no notice under sub-section (1) of section 142
has been issued to him, or
(b) a return of income has been furnished by such other
person but no notice under sub-section (2) of section 143
has been served and limitation of serving the notice under
sub-section (2) of section 143 has expired, or
(c) assessment or reassessment, if any, has been made,
before the date of receiving the books of account or documents
or assets seized or requisitioned by the Assessing Officer
having jurisdiction over such other person, such Assessing
Officer shall issue the notice and assess or reassess total
income of such other person of such assessment year in
the manner provided in section 153A.]
153A. Assessment in case of search or requisition.- (1)
Notwithstanding anything contained in section 139, section
147, section 148, section 149, section 151 and section 153,
in the case of a person where a search is initiated under
section 132 or books of account, other documents or any
assets are requisitioned under section 132A after the 31st
day of May, 2003, the Assessing Officer shall—
(a) issue notice to such person requiring him to furnish within
such period, as may be specified in the notice, the return of
income in respect of each assessment year falling within
six assessment years referred to in clause (b), in the
prescribed form and verified in the prescribed manner and
setting forth such other particulars as may be prescribed
and the provisions of this Act shall, so far as may be, apply
accordingly as if such return were a return required to be
furnished under section 139;
(b) assess or reassess the total income of six assessment years
immediately preceding the assessment year relevant to the
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previous year in which such search is conducted or
requisition is made :
Provided that the Assessing Officer shall assess or
reassess the total income in respect of each assessment
year falling within such six assessment years:
Provided further that assessment or reassessment, if
any, relating to any assessment year falling within the
period of six assessment years referred to in this subsection pending on the date of initiation of the search under
section 132 or making of requisition under section 132A, as
the case may be, shall abate.
(2) If any proceeding initiated or any order of assessment or
reassessment made under sub-section (1) has been
annulled in appeal or any other legal proceeding, then,
notwithstanding anything contained in sub-section (1) or
section 153, the assessment or reassessment relating to
any assessment year which has abated under the second
proviso to sub-section (1), shall stand revived with effect
from the date of receipt of the order of such annulment by
the Commissioner:
Provided that such revival shall cease to have effect, if such
order of annulment is set aside.
Explanation.—For the removal of doubts, it is hereby declared
that,—
(i) save as otherwise provided in this section, section 153B
and section 153C, all other provisions of this Act shall
apply to the assessment made under this section;
(ii) in an assessment or reassessment made in respect of
an assessment year under this section, the tax shall be
chargeable at the rate or rates as applicable to such
assessment year.
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Ld. CIT(DR) during the counsel of hearing also drew
attention to Section 148 (2) of the Act, which reads as under :8.
The Revenue has raised four fold objections against quashing
the assessment order. Firstly, it was argued that there is no
requirement under the law that the satisfaction should be recorded.
The satisfaction can be inferred by
implication, had the intent of
legislation been so, the word record as enshrined in Section 148(2)
would have been incorporated. Therefore, there is no need of
satisfaction note and on the basis of absence of satisfaction note
Assessment cannot be annulled. In support of this submission the
reliance is placed on the judgment Hon’ble Kerala High Court
rendered in the case of Dr. K.M. Mehboob Vs. DCIT Anr. (2012) 76
DTR (Ker) 90. Secondly, it was pointed out that Ld. CIT(A) in para 4.3
of the impugned order has observed that the Assessee has no
objection in respect of initiation of proceedings. Now the assesse
cannot be allowed to blow hot and cold at the same time. Thirdly, it
was contended that the provision should be literally construed. There
is no scope of adding of new word and or imparting a new meaning,
when there is no ambiguity, this being well settled proposition of law.
Lastly, it was contended that technicalities should not come in the
way of dispensation of justice. It was submitted that non recording of
ITA NO. 6404 to 6409 /DEL/2013
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C.O. No. 353 to 358 /DEL/2014
satisfaction is only a technical defect this should not be sole ground
for annulling the assessment. It was therefore, contended that the
assessment should not be quashed.
9.
On the other hand, it is contended by the Counsel for the
Assesssee is that issue is no more res-integra and has been decided
in
favour
of
the
Assessee
by
the
Authoritative
Judicial
Pronouncement by the Hon’ble High Court of Delhi, other High Courts
and the co-ordinate Benches of this Tribunal. Therefore, it is prayed
that Assessment order be quashed being illegal and nullity in the
eyes of law. The brief synopsis as filed is reproduced herein below for
the sake of clarity :“ Before the Hon’ble Income Tax Appellate Tribunal, “C’Bench, New
Delhi
In the matter of
Vs.
Instronics Limited
F-345, Lado Sarai,
New Delhi-110030
PAN : AAACI0163R
(Appellant)
Assessment Years
ITA Nos.
AND
ACIT, Central Circle -21
Room No. 344, ARA Centre,
Jhandewalan Extension,
New Delhi - 110055
(Respondent)
2003-2004 to 2008-09
6336/Del/2014 to 6341/Del/2014
(Filed by Assessee on 19.11.2014)
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
DCIT, Central Circle – 21,
Instronics Limited
ARA Centre, Jhandewalan Extension, F-345, Lado Sarai,
New Delhi – 110055
New Delhi- 110030
Assessment Years
2005-2006 to 2008-09
ITA Nos.
6553/Del-2014 to 6556/Del-2014
NDOH
(Filed by Revenue on 29.05.2014)
04.03.2015
Synopsis (Covered Matter)
Assessee Company’s Cross Appeals inter-alia on legality and validity
of proceedings u/s 153C and Revenue’s Appeals on merits.
May it Please Your Honors.
1. Satisfaction note as supplied to assessee company dated
30.09.2010 (Paper Book for the AY. 2003-04 to AY. 2008-09, Page
No. 11)
“Satisfaction Note for issuing notice u/s. 153C of I.T. Act, 1961, in the
case of M/s. Instronics Limited, 192C, J&K Pocket, Dilshad Garden,
New Delhi, PAN : AAACI0163R for AY. 2003-04 to 2008-09.
“30.09.2010: In the case of Sh. B.K.Dhingra, Smt. Poonam Dhingra
and M/s Mayank Traders Pvt. Ltd., M/s Horizon Pvt. Ltd. search &
seizure took place u/s. 132 on 20.10.2008. The undersigned is the
jurisdictional AO of these cases. During the course of search and
seizure documents/papers at pages 1 to 38 of Annexure A-87,
Annexures A-96, A-97, A-98 and A-99, are found to belong to M/s.
Instronics Ltd., 192C, J&K Pocket, Dilshad Garden, New Delhi. I have
examined the above mentioned documents/papers and provision of
section 153C is invokeable in this case. As the under signed is also
the jurisdictional AO of M/s. Instronics Ltd., 192C, J & K Pocket,
Dilshad Garden, New Delhi, this satisfaction note is placed in the file
before issueing notice u/s. 153C.
Sd/30.09.2010
ACIT, Central Circle-17, New Delhi
Reasons for aforesaid satisfaction note is not valid to assume the
jurisdiction u/s 153C of the Act:
That it is not recorded by specified authority that is AO of
raided
party
during
assessment
proceedings
which is fortified from:
a)
RTI replies dated 10.06.2013 & 28.06.2013 (pages 12 to
15
of
Paper
Book
for
the
AY.
2003-04
to AY. 2008-09).
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b)
On the very next day (01.10.2010) notice uls 153C is
issued;
c)
Tone and Tenor of Satisfaction note
That is there is no remote indication in the given/aforesaid
note that same is recorded during the course of assessment
of a particular searched person on the contrary, from cursory
look it is palpable that same is mere noting by AO of
assessee (other person) before issuai of notice uls 153C.
It is supported by i)firstly, Opening language and most
importantly it is recorded that "In the case of She B.K.
Dhingra, Smt. Poonam Dhingra and Mls. Mayank Traders
Pvt. Ltd., Horizon Pvt Ltd. search & seizure took place u/s.
132 on 20.10.2008; ................
Secondly,
documents/papers at pages 1 to 39 of Annexure A-87,
Annexures A-96, A-97, A-98 and A-99, are found to belong to
M/s. Instronics Ltd.," where multiple parties are mentioned (3
in no.); ii)" which sufficiently proves that instant note is
recorded by AO of present assessee and is not the requisite
"satisfaction" by any AO of any particular raided party during
search assessment u/s 153A.
Noticeably aforesaid features clearly establish that there is no
valid satisfaction on part of Ld. AO. before issuing notice uls
153C of the Act. On identical facts, Hon'ble Delhi benches of
ITAT on three different occasions in cases of Inlay Marketing
Pvt. Ltd. (Case Law Paper Book Pages 78 to 128), Akash
Arogya Mandir Pvt. Ltd. (Case Law Paper Book Pages 129 to
144) and Tanvir Collections Pvt. Ltd. (Case Law Paper Book
Pages 145 to 166) have quashed the similar proceedings
being nullity for lack of jurisdiction. In these precedents,
Coordinate bench decisions, Hon'ble Jurisdictional High
Court and Apex Court decisions are dilated at length. So it is
respectfully preyed that for sake of justice, same may please
be applied in present case also.
It is noteworthy here that order of Delhi [TAT in DSL
Properties case reported at 60 SOT 88 was applied in above
cases. This order is followed in many other decisions by
Hon'ble ITAT. Further it is not known as to why the revenue
has not disclosed that at Hon'ble High Court on 05.12.2014
revenue's stay application for DSL ITAT decision has been
20
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
hitherto jettisoned by Hon'ble Delhi High Court, ITA 583/2013
dated 05.12.2014.
Regarding specific satisfaction by AO of raided party and in
its
absence
consequential
nullification
of
proceedings, Hon'ble Delhi High Court decision dated
26.11.2014 in case of Manju Finance Corportion
(IT A No. 339/2002) (Case Law Paper Book Pages 17 to 24) is
noteworthy.
2.2 That instant note is recorded mechanically and without
application of mind: It is vivid from aforesaid note that same is
recorded without even narrating and describing the nature of
documents and their financial implications and only Annexure
numbers are loosely and vaguely mentioned which do not
meet the basic criteria of any objective and rational
"satisfaction". That is there no clear finding in aforesaid note
on i) nature of documents and ii) as to how Ld AO arrived at
the satisfaction that samebelongs to appellant here which is
quite crucial and critical iii) the financial implications of
documents on block period. Nothing is comprehensible from
the aforesaid note. How can without enumeration of basic
documents mere mentioning of Annexure No's can be treated
as adequate for arriving at just and valid satisfaction uls 153C
which reflects mechanical recording of the same.
On both the above counts, that is non recording of
satisfaction by specified authority (being AO of a raided party)
and for total lack of clarity of nature of documents seized and
how treated to be belonging to, makes the instant
proceedings null and void and the given note at page 1
cannot be treated as valid for assumption of jurisdiction.
Jurisdictional and other available Hon'ble High Court Judicial
Pronouncements: Issue is no longer res integra
Noticeably, there are at least Four High Court Decisions
(including two from jurisdictional High Court reported at 367
ITR 673, 367 ITR 112, 270 CTR 467 Pepsi and Pepsico
orders (Case Law Paper Book Pages 1 to 16) and other two
from Allahabad High Court (Gopi Apartments 366 ITR 411)
and Telangana & Andhra Pradesh High Court in Shetty
Pharmaceuticals (26.11.2014) ITT A 662 of 2014 and batch)
(Case Law Paper Book Pages 31 to 66) where in detailed
principles on validity of proceedings U/S 153C are laid down
which supports the view taken in cases of i) Inlay Marketing
Pvt. Ltd. (supra) ii) Akash Arogya Mandir Pvt. Ltd. (supra) iii)
21
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
4.
Tanvir Collections Pvt. Ltd. and iv) DSL Properties Pvt. Ltd.
and our prayer(Supra).
In aforesaid connection, it is very respectfully submitted
that it is trite law that after various high court decisions on the
issue, no question of debate and per incuriam and special
bench can arise as it is held in Coordinate bench decision
reported at 69 TTJ 550 (applied by Pune ITAT in Aurangabad
resorts reported at 118 ITD 1/111 TTJ 741) that once an
authority higher than tribunal has expressed its esteemed
views on an issue, normally the decision of higher judicial
authority is to be followed, even if higher judicial forum is non
jurisdictional High Court (here T & AP High Court in Shetty
case and Allahabad High Court in Gopi Apartments). Same
view is reiterated in decision of Mumbai bench of ITAT
reported at 20 SOT 129. In context of revenue's attempt to
distinguish the Jurisdictional high court decisions (in cases of
Pepsi and Pepsico supra) on non existing and extraneous
grounds, respectfully submitting, it is urged that once the
decision of jurisdictional high Court exists on an issue, it is
settled position in law as declared by the Supreme Court in
the case of East India Commercial Co. Ltd. vs. Collector of
Customs AIR 1962 (SC) 1793 that the law declared by the
High Court is binding on all authorities and tribunals within
the State.
Lastly, we humbly draw your honors kind attention to recent
constitution bench order of Hon'ble Supreme Court in Vatika
case reported at 367 ITR 466 wherein in no unclear words it
is categorically held that "Tax laws are clearly in derogation of
personal rights and property interests and are, therefore,
subject to strict construction, and any ambiguity must be
resolved against imposition of the tax" that is where two
views are there one which favors the tax payer must
befollowed. (vide se decision in case of Vegetable Products
88 ITR 192).
Further where the issue is covered in favor of assessee on
legal jurisdictional grounds there is no need to enter into
merits at all is supported by Bombay High Court decision in
case of M/s. Petroleum India International, Mumbai order
Dated: 19th November, 2012 in Income Tax Appeal No. 2660
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
of 2009 wherein it is held that "Once, it is held that the
reopening of the assessment is bad in law, then, in our
opinion, the CIT (A) as also the ITAT were not justified in
dealing with the merits of the case"
Note on DELHI HIGH COURT decision in case of SSP
Aviation (346 ITR 177) which is relied heavily by revenue at
ITAT and CIT-A.
Relevant facts of instant case/documents:
i) Our first hand response to Ld. AO. In the month of
November, 2010 during assessment proceedings (pages 22
to 28 of Paper Book for the AY. 2003-04 to AY. 2008-09) that
seized document are fully
disclosed and accounted and nothing is undisclosed as far as
search related documents are concerned which remained
uncontroverted;
ii) At no stage it is controverted that seized documents found
during search are fully disclosed and accounted.
PARA 17 of aforesaid decision as applies to present case in
favor of assessee: '
“The section merely enables the
Revenue authorities to investigate into the contents of the
document seized, which belongs to a person other than the
person searched so that it can be ascertained whether the
transaction or the income embedded in the document has
been accounted for in the case of the appropriate person. It is
aimed at ensuring that income does not escape assessment
in the hands of any other person merely because he has not
been searched under section 132 of the Act. It is only a first
step to the enquiry, which is to follow. The Assessing Officer
who has searched the satisfaction that the document relates
'to a person other than the searched person can do nothing
except to forward the document to the Assessing Officer
having jurisdiction over the other person and thereafter it is
for the Assessing Officer having jurisdiction over the other
person to follow the procedure prescribed by section 153A in
an attempt to ensure that the income reflected by the
document has been accounted for by such other person. If he
is so satisfied after obtaining the returns from such other
person for the six assessment years, the proceedings will
23
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
have to be closed. If the returns filed by the other person for
the period of six years does not show that the income
reflected in the document has been accounted for, additions
will be accordingly made after following the procedure
prescribed by law and after giving adequate opportunity of
being heard to such other person. That, in sum and
substance, is the position. "
Further Supportive case laws where aforesaid decision of Delhi
high court in SSP Aviation para 17 is applied:
i) In identical fact situation, IN THE INCOME TAX APPELLATE
TRIBUNAL DELHI BENCH "B", NEW DELHI in I.T.A. Nos.
5430 to 5436IDel/2013 A.YRS. : 2003-04 to 2009-10 'Devi
Dayal Petro Chemicals Pvt. Ltd., order dated 10-9-2014.'
(Refer Case Law Paper Book Pages 67 to 77 ) has observed
that "Therefore, the Assessing Officer will drop the
proceedings initiated under Section153 of the years to which
the seized documents do not belong. For the year to which
the seized documents belonged, he will verify whether the
transaction reflected by the seized documents is duly
accounted for in the books of account. If the transactions are
duly accounted for in the books of account, as contended by
the learned counsel, the Assessing Officer will drop the
proceedings initiated under Section 153C"
ii) BENCH "A", KOLKATA ,ITAT in Trishul Hi-Tech Industries
case order dated 24.09.2014, IT(SS)A Nos. 84-86/KoI/2011
(Refer Case Law Paper Book Pages 197 to 209) has held
that "To put it simply this amendment to proviso to section
153C(1) by finance act 2014 of the Act debars the AO from
making any assessment dehorse any incriminating material
found during the search"
iii) Pune bench ITAT in Bharati Vidyapeeth Foundation duly
approved by Bombay High Court on 10/06/2014 ITA No.
959/PN/10 to 967/PN/10 in turn based on Pune ITAT order
reported at Singhad Technical Education 140 TTJ 233)
iv) Pune bench ITAT in D.Y.Patil Pratshthan order dated 7/9/2012,
ITA No. 1586/PN/2011 to 1591/PN/2011
Since in the instant case certain documents belonging to the
assessee trust have been found during the course of search
in the premises of the trustees, therefore, issue of notice u/s.
24
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
153C of the Income Tax Act by the AO is a valid notice in
view of the decision of Hon’ble Delhi High Court in the case
of SSP Aviation Ltd. (Supra). However, since all the entries
found in those documents have already been reflected in the
books of accounts as per the chart furnished by the
assessee which have been reproduced at Para 9 of this order
and which have been analysed above and which could not be
controverted by the learned DR, therefore, in ivew of the
decision of the Hon’ble Delhi High Court in the case of SSP
Aviation Ltd. (Supra) further proceedings should have been
closed by the AO. Otherwise it will cause undue harassment
to the assessee. In our opinion, the AO in the garb of
proceedings u/s 153C cannot make roving and fishing
enquiries after assessee proves that entries recorded in the
documents sized from the search party which belong to the
assessee are already reflected in the regular books of
account maintained. In this view of the matter and
respectfully following the decision of the Hon’ble Delhi High
Court in the case of SSP Aviation Ltd. (Supra) we hold that
the notice issued u/s. 153 is a valid notice.
However, since the assessee has satisfactorily explained that
entries found in the seized documents are reflected in the
regular books of account, further proceedings u/s. 153C will
have to be closed and no further addition can be made by
making roving and fishing enquiries since the assessee
cannot be put to undue harassment. Since the assesssee
succeds on this preliminary issue we refrain ourselves from
adjudicating the other grounds by the assessee as well as the
revenue on merit.
Decisions referred :
i) Jai Steel (India) vs. ACIT: 259 CTR (Raj) 281
ii) CIT vs. Murli Agro Products Ltd. I.T.A. No. 36 of 2009 (Bom.)
High Court order dt. 29.10.2010
iii) CIT vs. Chetan Dass Lachman Dass; 77 DTR (Del) 25
iv) CIT vs. Anil Kumar Bhatia; 352 ITR 493 (Del)
v) Sanjay Agarwal; ITA No. 3184/Del/2013
vi) PACL India Ltd., ITA No. 2637/Del/2010
vii)Kusum Gupta, ITA No. 3312/Del/2009
viii) MGF Automobiles Ltd., ITA No. 4212/Del/2011
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
ix) Vee Gee Industrial Enterprises, ITA No. 1/Del/2011
x) Asha Kataria, ITA No. 3105-3107/Del/2011
xi) Merigold Merchandise (P). Ltd. ITA No. 2666/Del/2013
xii)Pradeep Kumar, ITA No. 4016/Del/2011
xiii) ACIT vs. Manoj Narain Agarwal; 99 DTR (Del) (Trib.) 279
xiv) Parivar Properties (P) Ltd., ITA No. 1011/Del/2013
xv) Inlay Marketing Pvt. Ltd, ITA No. 4200/Del/2012 (identical
fact setting) (Case Law Paper Book Pages 78 to 128)
xvi) V.K.Fiscal, ITA No. 5460/Del/2013
xvii) Parsvnath Developers Ltd. vs. DCIT, 5188/Del/2013
xviii) Special Bench of the ITAT in the case of All Cargo Global
Logistic Ltd. vs. CIT; 137 ITD 287 (Mumbai) (S.B.)
xix) Delhi ITAT Bench, ‘D’Bench New Delhi, Kurele Paper Mills
Pvt. Ltd. 14.11.2014 (Case Law Paper Book Pages 172 to
186)
xx) ITAT, Delhi ‘A’ Bench, Anjoo Kashyap Order dated
19.12.2014
xxi) ITAT, Delhi ‘F’ Bench Order, in the case of qualitron
Comodities Pvt. Ltd. dated 06.01.2015 (Case Law Paper
Book Pages 187 to 196)
Submitted please,
Sd/AR Kapil Goel, Adv.”
9.1.
The Revenue has not disputed the fact that in the case in
hand, there is no satisfaction note by the AO of the searched party.
The explanation for not recording satisfaction is that law does not
envisage that the satisfaction should be recorded. This contention is
against the ratio laid down by the Hon’ble Delhi High Court in the
case of Pepsi Foods (P) Ltd. Vs. Assistant Commissioner of Income
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
Tax [2014] 52 taxman. Com 220 (Delhi) in para 6 of the judgment
has 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 handover such document to the
Assessing Officer having jurisdiction over such other
person (other than the searched person). WP(C) 415/2014
& Ors. Page 9 of 15 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 reassess 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 has 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 WP(C)
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
415/2014 & Ors. Page 10 of 15 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”.
Further the Hon’ble Delhi High Court held that mere use or
mention of the word “satisfaction” or the words “satisfied” in the
order as the same 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 reason as 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 persons.
It is pertinent to note here that the Hon’ble Delhi High Court in the
case of Pepsi Food (P) Ltd. Vs. ACIT (Supra) has held that the
satisfaction note by the AO searched party is a condition precedent
for issuance of notice u/s 153C of the Act. In the light of judgment of
the Hon’ble Delhi High Court, we cannot accept the argument of
Revenue that no satisfaction is required to be recorded or the
satisfaction can be inferred by implication i.e. from the conduct of
Assessing Officer of the searched party and it would be sufficient if
the AO of the searched party transfers the material belonging to other
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
person to the Assessing Officer of such person. We do not agree with
contention of Ld. CIT(DR) that non recording of satisfaction note is
merely a technical defect. The satisfaction of the Assessing Officer of
the searched party goes to very root of the assumption of jurisdiction
by the Assessing Officer of other person for initiating proceeding u/s
153C of the Act. Therefore, we find no merit into this contention of Ld.
CIT(DR). Moreover, we cannot ignore the mandate of the statutory
provision under the garb of technical defect.
10.
Ld. Counsel for the Assessee has relied on the decision of the
decision of the co-ordinate Bench of this Tribunal in the case of
Tanvir Finance & Leasing Ltd. Vs. DCIT in Cross objection nos. 268
to 271/Del/2014 (in ITA Nos. 14 to 17/Del/2014) Wherein under the
identical facts has observed as under :“We duly appreciate the concern of the Ld. DR for the
exchequer. But we are reminded of the basic principle
enshrined in Article 265 of the Constitution that no tax can
be collected without authority of law. There can be no
assessment in the absence of a proper jurisdiction of the
authority. The question of jurisdiction is a very important
aspect, which cannot be equated with a technical issue.
Similar contention raised by the Ld. DR has been
elaborately dealt with by the Tribunal in the case of Tanvir
Collections P. Ltd. (supra). We, therefore, do not approve
this contention.”
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ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
Respectfully following the decision of Hon’ble co-ordinate Bench, we
hereby reject the contention Ld. CIT(DR) that non recording of
satisfaction is only a technical defect, and the assessment cannot be
annulled on this basis.
11.
During the course of hearing Ld. CIT(DR) has relied upon the
judgment of the Hon’ble Kerla High Court rendered in the case of
DR. K.M.Mahboob Vs. DCIT(Supra). This argument of the Assessee
has been considered by the Hon’ble co-ordinate Bench rendered in
the case of M/s Akash Arogya Mindir Pvt. Ltd. Vs. DCIT in cross
objection nos. 77 – 82/ Del/ 2013 wherein it has been observed that
there are conflicting views of Hon’ble Delhi High Corut and Hon’ble
Kerla High Court, the Assessee falls into the jurisdiction of Hon’ble
Delhi High Court in view ratio of Delhi High Court judgment in case of
Pepsi Foods (P) Ltd. (Supra),
it was held that recording of
satisfaction by AO of searched persons is a necessary pre condition
for initiation of proceeding u/s 153C which was not done in that case.
Accordingly, the Hon’ble co-ordinate Bench was pleased to quash the
Assessment Proceedings.
In the case in hand also the assessee company is within the territorial
jurisdictional of the Hon’ble Delhi High Court. The facts are identical,
30
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
no contrary view of the Hon’ble Delhi High Court or the Hon’ble
Supreme Court brought to our notice by the Revenue. Therefore, we
do not see any reason to take any contrary view, therefore, we are of
the considered view that in the absence of a satisfaction recorded by
the Assessing Officer of the searched persons, the Assessment
framed u/s 153C of the Act by the Assessing Officer cannot be
sustained, as such same is bad in law.
12.
It is observed that the Revenue has not placed any material
on record in respect of evidence qua the present assessee collected
during the search operation. Moreover, the satisfaction as envisaged
under Section 153C is also not placed on record. Therefore, we have
no option but to accept the contention of Ld. Counsel for the
assessee that no satisfaction was recorded by the Assessing Officer
of the searched party, this contention is supported by the reply of
Revenue furnished under Right to Information Act. It is expected that
the Assessing Officer should be careful in complying with the
mandate of law to avoid loss to exchequer.
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C.O. No. 353 to 358 /DEL/2014
13.
Accordingly the ground raised by the assessee in cross
objection, that the proceedings initiated under Section 153C is bad in
law is allowed. The assessment framed u/s 153C read with section
143(3) pertaining to the Assessment Year 2003-04 is quashed. Since
we have quashed the assessment on the legal issues. We are not
adjudicating
the
other
grounds
raised
in
cross
objection
353/Del/2014.
The Revenue’s appeal in I.T.A. No. 6404/Del/2013 pertaining to
the Assessment Year 2003-04 is dismissed, as infructuous.
In the result Assessee’s cross objection no.
353/Del/2014 is
partly allowed as indicated hereinabove.
14. In respect of cross objections numbers also 354 to 358/Del/2014
pertaining to the Assessment Years 2004-05, 2005-06, 2006-07,
2007-08 and 2008-09 and ITA No. 6405 to 6409/Del/2013 pertaining
to Assessment Years 2004-05, 2005-06, 2006-07, 2007-08 and 200809. The facts are identical no change into facts and circumstances is
pointed out. In all these years also there is no satisfaction recorded
as envisaged under Section 153C of the Act. Therefore, following our
32
ITA NO. 6404 to 6409 /DEL/2013
C.O. No. 353 to 358 /DEL/2014
decision
in
cross
objection
no.
353/Del/2014
pertaining
to
Assessment year 2003-04 we hereby quash the Assessment order
pertaining to the Assessment Years 2004-05, 2005-06, 2006-07,
2007-08 and 2008-09.
Accordingly, the cross objections nos. 354 to 358/Del/2014
pertaining to Assessment Year 2004-05, 2005-06, 2006-07, 200708 and 2008-09 are partly allowed in the terms indicated
hereinabove and Revenue’s appeal in ITA No. 6405 to 6409 for
the Assessment Years 2004-05, 2005-06, 2006-07, 2007-08 and
2008-09 are dismissed, as infructuous.
Order pronounced in open court on Friday 13th, March, 2015.
Sd/(S.V.Mehrotra)
Accountant Member
Sd/(Kul Bharat)
Judicial Member
Dated 13th March, 2015
B.Rukhaiyar
1.
2.
3.
4.
5.
Copy forwarded to
APPELLANT
RESPONDENT
CIT
CIT (A)
CIT (ITAT), New Delhi.
By order
AR, ITAT
N. Delhi
33
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Sl.
No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Description
Date
Date of dictation by the Author
09.03.2015
Draft placed before the Dictating 09.03.2015
Member
Draft placed before the Second
Member
Draft approved by the Second
Member
Date of approved order comes to
the Sr. PS
Date of pronouncement of order
13.03.2015
Date of file sent to the Bench
Clerk
Date on which file goes to the
Head Clerk
Date of dispatch of order
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