TMI Blog2016 (6) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... already waived off their interests in revenue record on 25-04-2008 in Shri Darji’s favour. The same precedes the impugned seized material dated 03-05-2008 and 13-05-2008. The assessee accordingly acquired 60% interest in land in question. This fact is evident from the contents of the registered sale deed dated 17-11-2009. We are of the view that 60% of the impugned cash amount of ₹ 1.5 crores coming to ₹ 90 lacs has to be assessed in assessee’s hands in any case even if his apportionment plea is accepted. Two co-shares/covendors have to be assessed for the remaining sums - Held that:- We find that it is the assessee only who has signed the relevant documents revealing cash payments in question. He is the only person receiving even the cheque payments on behalf of other co-vendors. We are of the opinion that it was for the assessee to discharge a very strong onus for proving that the other co-vendors received the cash payments in question from him or from the vendees. He has failed to do so. This tribunal’s proceedings are summary in nature based on reasonable preponderance of probabilities not requiring application of stricter provisions of evidence law. We observe i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t asssessees. First assessee Shri Anil Kumar G. Darji has instituted three appeals IT(SS)A Nos. 258 to 260 of 2013 in assessment years 2007-08, 2008-09 and 2010-11against separate orders of the CIT(A)- I, Ahmedabad all dated 19-04-2013, passed in appeal Nos. CIT(A)- I/CC.1(1)/320/2011-12, CIT(A)-ICC.1(1)/321/2011-12 and CIT(A)- ICC.1(1)/322/2011-12; respectively. 2. We come to second assessee Shri Amit K. Patel. The Revenue has filed IT(SS)A 254/Ahd/2013 followed by his cross objections no. 211/Ahd/2013 in assessment year 2008-09 against the order of CIT(A)-I, dated 05-04-2013 in case no. CIT(A)- I/CC.1(1)/268/2011-12. 3. The Revenue has preferred appeal IT(SS)A 256/Ahd/2013 in case of third asssessee Shri Narendra R. Patel in assessment year 2008-09 followed by his CO No. 213/Ahd/2013 against the CIT(A)-I order dated 05-04-2013 passed in case no. CIT(A)- I/CC.1(1)/279/2011-12. Relevant proceedings in assessment years 2007-08 and 2008- 09 hereinabove are u/s. 153C r.w.s 143(3) of the Income Tax Act, 1961; in short the Act . Last assessment year 2010-11 involves proceedings u/s. 143(3) of the Act. 4. We come to respective pleadings first. First assessee Shri Anil R. Dar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alternative plea raised by the appellant before the A.O. and the Ld. CIT(A). 3) On the facts and circumstances of the case and in law and also in view of the finding of fact recorded by the Ld. CIT(A) that cash amounting to ₹ 56,61,200/- has been paid by Anil G Darji out of unexplained sources and cash amounting to ₹ 41 lakhs was paid out of money received from Umiya group person then in view of the above there could be no occasion for taxing the sum of ₹ 32,53,733/- on protective basis at the rate l/3rd of ₹ 97,61,200/- (l/4th share as upheld by Ld. CIT(A)) for the assessment year under consideration as land had been purchased and the payment was made for this land as land was not sold to Suresh Patel Vishnu Patel, therefore, ground No. 2 of the departmental appeal deserves to be dismissed/rejected. 6. This leaves us with the third Shri Narendra R. Patel. The Revenue has preferred IT(SS)A 256/Ahd/2013 against the CIT(A) s order deleting unaccounted capital gains addition on sale of lands of ₹ 53,70,646/- and ₹ 32,53,733/- made on substantive and protective basis respectively by the Assessing Officer on the basis of various seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 2007-08 and 2008-09 for adjudication. 10. Shri Divetia opens up arguments at the behest of Shri Anil R. Darji. He submits that the department had conducted the impugned search in case of M/s. Umiya group and its partners Shri Vikas R. Patel on 04-03-2010. The same led to seizure of above stated incriminating documents. He makes it clear that Assessing Officer in case of the searched parties and asssessee s case is the same. He recorded satisfaction on 14-07-2011 that the relevant documents in the nature of above stated MOU (supra) etc belonged to the assessee for the purpose of initiating section 153C proceedings. Shri Divetia takes us to the relevant satisfaction note reading as under:- A search operation u/s 132 was conducted on Umiya Group by issuing warrants of authorization u/s 132 of the IT Act on 04.03.2010 and various documents/books of account/other valuable articles/other things were found and seized from the various premises covered u/s 132 of the IT Act. On verification of various documents found and seized from the residential premises of Shri Vikas R Patel situated at 23, Uma Bungalows, R.C. Technical Road, Ghatlodia, Ahmedabad, it is noticed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Vikas R Patel belongs to Shri Anilkumar G Darii (PAN:AAWPD3288R) and hence the case is fit for initiating proceedings us. 153C r.w.s. 153A of the IT Act. 1961. Accordingly, the notice u/s 153C r.w.s 153A of the Act is issued for AY:04-05 to AY:09-10 Learned counsel states that the Assessing Officer thereafter issued section 153C notice dated 20-07-2011 leading to framing of the impugned assessments. His first argument is that the Assessing Officer has not recorded any satisfaction in searched parties cases in respective case files that the impugned incriminating material belonged to the assessee as specified u/s. 153C followed by a similar action being adopted in this assessee s case. His case is that the revenue authorities have not placed on record any satisfaction to have recorded in searched parties cases. Case law of hon ble jurisdiction high court (2014) 222 Taxman 96 (Guj) DCIT vs. Lalitkumar M. Patel upholding tribunal s order in IT(SS)A No. 61/Ahd/2007 is also quoted. Shri Divetia submits that the impugned assessment framed u/s. 153C of the Act is liable to be quashed on this ground alone. 11. Next comes Shri Darji s argument that the impugned satisfaction fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. He makes out a case that the above extracted satisfaction dated 14-07-2011 has to be read as a common one applicable in all cases of searched parties as well as the ones in hand. Case law of KPC Medical College and Hospital vs. DCIT(Kol) ITA Nos. 1832 to 1834/Kol/2014 decided on 24-06-2015 upholding a similar common satisfaction is quoted in support. 14. Next comes Shri Jagdish s reply to assessee s argument that the seized material (supra) cannot be held to be belonging to Shri Darji. He clarifies that all these three assessees are signatories to the MOU/Sale deeds in question. Shri Darji s signature appears on revenue stamp receipt. The Revenue takes us to para 4.3 page 10 of the CIT(A) s order holding that this seized material belonged to the assessee. Case law of hon ble jurisdictional high court in Kamleshbhai Dharamshibhai Patel vs. CIT Special Civil No. 13635/2012 decided on 24-12-2012 is quoted in support holding that the term belongs to can be stated to be having relation or reference to Shri Jagdish invites our attention to facts narrated in this judgemnt treating vendors payment receipt containing their signatures held as to be belonging to them. Another case la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party. They submit that a coordinate bench in case of Shailesh R. Daxini vs. ACIT IT(SS)A No. 1- 3/Ahd/2011 decided on 22-04-2016 has already distinguished the above stated decision. They accordingly pray for quashing of the impugned assessments. 18. We have heard rival contentions. Case files perused with the able assistance of the learned representatives. We come to admitted facts first. The department conducted search in case of M/s. Umiya group and its partners Shri Vikas R. Patel. It seized MOU/Banakhat/Sale deed demonstrating these three having acted as vendors of the land in question. The registered sale deed quoted price is ₹ 20 lacs. Shri Vikas R. Patel got recorded his search statement deposing that these three assessees had received unaccounted cash money of ₹ 2.5 crores. The Assessing Officer is admittedly common in all these cases. He initiated section 153A proceedings against Shri Vikas R. Patel on 18-02-2011. This followed three separate satisfaction under challenge. The Assessing Officer recorded section 153C satisfaction in case of Shri Darji on 14- 07-2011 as followed by remaining two dated 19-07-2011 in cases of S/sh Amit K. Patel and Narendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er valuable articles. This included file documents Annexures A-55, 64 65 belonging to the assessee. The same culminated in issuance of section 153C notice dated 23.07.2009. The assessee filed return on 23.08.2009 stating income of ₹ 1,32,400/-. The Assessing Officer took up scrutiny. He inter alia noticed assessee s action of allegedly misusing client code facility and observed that the same resulted in suppression of income/profits of ₹ 63,26,507/- not offered in the books of account. This amount stood added as assessee s income in assessment order dated 29.12.2009. 6. The assessee preferred appeal. He inter alia raised two substantive grounds. First one assailed legality of the impugned section 153C proceedings. Latter ground on merits challenged correctness of the above stated addition. We reiterate that the instant adjudication is confined to legal aspect only. The assessee argued in the course of lower appellate proceedings that none of the seized material belonged to him as contemplated under section 153C of the Act. The CIT(A) concurs with the Assessing officer to hold that above stated incriminating material annexure-55, 64 to 65 belongs to assessee only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be initiated in this case. Accordingly notice u/s.153C r.w.s. 153A of the Act is issued for the A.Y 2002-03 to 2007-08. Sd/- (GAURAV BATHAM) Dy. Commissioner of Income Tax, Central Circle-1(1), Ahmedabad 9. Learned authorised representative strongly argues that the above extracted satisfaction note has been made in assessee s case who happens to be other than the searched assessee and no such satisfaction has been recorded in the case file of M/s. Kunvarji (supra) that the incriminating material hereinabove belonged to the assessee. It is further stated that the assessee filed RTI application as well seeking to confirm as to whether the Assessing Officer had recorded any satisfaction in case of the above stated searched assessee under section 153C. We are informed that the department has furnished the above extracted satisfaction only to have been entered for the purpose of initiating the impugned proceedings. The assessee accordingly contends that this course of action adopted by the Assessing Officer is not sustainable as per the case law of hon ble jurisdictional high court (2014) 222 Taxman 96 (Guj) DCIT vs. Lalitkumar M. Patel upho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SINHA) Dy. Commissioner of Income Tax Central Cir.1, Baroda. Date : 23.02.2004 8. The learned counsel for the assessee has challenged the validity of the initiation of the proceedings under Section 158BD mainly on two counts (i) that the proceedings were initiated after completion of the assessment in the case of Jayaraj Group of cases and (ii) during the assessment proceedings of Jayraj Group no satisfaction was recorded by the AO of Jayaraj Group but reasons was recorded by the AO of the assessee for issuing of notice under Section 158BD. In support of his contention, he relied upon the decision of the Hon ble Apex Court in the case of Manish Maheshwari Vs. ACIT, 289 ITR 341 and Special Bench of the ITAT in the case of Manoj Agarwal Vs. DCIT, 113 ITD 377. The learned DR, on the other hand, relied upon the orders of the authorities below and stated that the satisfaction recorded by the AO under Section 158BC is a valid satisfaction because the persons who recorded the satisfaction was the AO for Jayaraj Group of cases as well as the assessee. He also submitted that notice under Section 158BD was duly issued before the completion of the assessment under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding the Assessing Officer assessing the person searched comes across material indicating the presence of undisclosed income in the hands of the person not searched, there has to be a provision for making a similar assessment in the case of the other person. As section 158BC relates to a person searched there has to be different provision for making a similar assessment in the case of the other person and hence section 158BD has been enacted. So, the said section states that if the Assessing Officer is satisfied that the undisclosed income belongs to the other person, then he shall hand over the seized material so as to enable the second Assessing Officer to make a block assessment in a similar manner and that is not possible if the satisfaction is not recorded. And this can be recorded only and only in the course of the section 158BC proceeding and nowhere else. It is the Assessing Officer assessing the person searched who goes, through the seized material and comes to a decision as to whether there is any undisclosed income unearthed as a result of search, if so its nature and to whom it belongs. If the said undisclosed income belongs to the person searched that is the end of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. As per the decision of the Hon ble Apex Court, before the issue of notice under section 158BD, satisfaction must be recorded by the AO of the person searched, that the undisclosed income belongs to the person other than the person searched and then books of accounts or other documents seized has to be handed over to the AO of the person to whom the undisclosed income belongs. Thereafter on the basis of such satisfaction, the AO of the persons to whom the undisclosed income belongs will take proceedings under Section 158BD. Special Bench of the ITAT has further held that such satisfaction by the AO of the person searched has to be recorded in the course of proceedings under Section 158BC and not thereafter. Meaning thereby, the satisfaction must be recorded before the completion of the assessment of the person searched. Now in the case of the assessee we have reproduced the satisfaction note in para-7 above. 12. From the satisfaction note, it seems that it is recorded by the AO of the assessee and not the AO of Jayraj Group of cases. This inference of ours is on the following basis: i) Heading of the note is Reasons for issue of Notice u/s.158BD of the Act . Thus, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 158BC was dated 23-2-2004,while the assessment of Jayraj Group was originally completed under Section 158BC on 30-1-2004. That thereafter under Section 263 such order was set aside and fresh assessment order was passed on 29- 12-2006. However, it is not the case of the Revenue that the order under Section 263 was passed with regard to some finding pertaining to undisclosed income of the assessee viz. Shri Lalit M. Patel. In the fresh assessment order passed in pursuance of Section 263 also there is no mention with regard to undisclosed income, if any belonged to Shri Lalit M. Patel. 14. In view of the totality of the above facts, we are of the opinion that the reasons recorded for issue of notice under Section 158BD by the AO of the assessee cannot be said to be valid satisfaction for issue of notice under Section 158BD, we therefore respectfully following the decision of the Hon ble Apex Court in the case of Manish Maheshwari (supra) and the decision of the Special Bench of the ITAT in the case of Manoj Aggarwal (supra), hold that the issue of notice under Section 158BD in the case of the assessee was not valid. We quash the same. Once the notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, therefore notice under section 153C is to be issued in the case of assessee. The question is, where this paper was placed by him? Whether in the order sheet entries of Shri Bhaskar Ghosh s assessment proceedings; in a separate file or in cupboard available in his room. There is no dispute raised by the ld. representatives that this satisfaction was not recorded within the stages contemplated by the Hon ble Supreme Court in the case of CIT vs. Calcutta Knitwears (extracted supra). The attempt at the end of ld. counsel for the assessee is that there should be a straight jacket system, whereby the satisfaction recorded even by the same AO then, that should be placed in the file of searched person and if it is placed in some other cupboard in his room by the AO then, there cannot be any satisfaction, we fail to appreciate that technical approach at the end of assessee. The law does not require the manner and the procedure of keeping the files. The section only requires that a satisfaction be recorded and it should be during the period propounded by Hon ble S.C. in Calcutta Knitwears, that has been recorded in the present case. It is available on page 74 of the Paper Book. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands perused. There is no dispute that this assessee is not the one searched since the impugned proceedings are under section 153C of the Act conducted on 25.03.2008 in case of M/s. Kunvarji Commodities Brokers Pvt. Ltd. There is further no issue that the DCIT Central Circle 1(1) is the common assessing authority in case of both the assessees. The legal position envisaged under section 153C of the Act is very clear that the Assessing Officer of the searched assessee has to satisfy himself that any money, bullion, jewellery or other valuable articles etc. belongs to some other persons and not the searched assessee. This has to be followed by another exercise in case of such other assessee that the same is caused escapement of any income. It is at this stage that both parties have cropped up the instant issue. The assessee s case is that there is no satisfaction at first level in case of the searched entity opposed by the Revenue by saying that the Assessing Officer is the same who has expressed satisfaction in assessee s case. The law about entering of such a satisfaction is very well settled now. Hon ble apex court in the case of Manish Maheshwari vs. ACIT (2007) 289 ITR 341 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions is concerned. 13. We take note of our discussion hereinabove and revert back to facts of the instant case. We reiterate that the assessee s case is that once the Assessing Officer does not specifically record satisfaction in searched entity s case that the money, bullion, jewellery etc. in question belongs to a third person, places the same in it s file followed by an opinion of the above stated material having caused escapement of any income. It is accordingly argued that the impugned satisfaction does not adhere to above stated settled law. The Revenue on the other hand makes out a case that the Assessing Officer s satisfaction has come only after careful examination of the above stated incriminating material being examined together in the cases of M/s. Kunvarji as well as the assessee. We find no reason to agree with this contention. As observed by the learned co-ordinate bench in Lalit Kumar M. Patel s case, the Assessing Officer in the impugned satisfaction mentions only assessee s name on top of the satisfaction note and not that of the searched entity. There is no material placed on record before us that the Assessing Officer had kept the case files of the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 for A.Y.2010-11 by CIT(A)-I, Abad not only confirming but enhancing the addition in respect of land deal bearing Survey No.206 is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned addition. 2.1 The Ld. CIT(A) has grievously erred in law and on facts in confirming the addition of ₹ 1,50,91,800 in the hands of the appellant on substantive basis as unaccounted business income in respect of land bearing S. No. 206 at Chandlodiya, that too without giving any notice of enhancement to the appellant. 2.2 That in the facts and circumstances of the case as well as in law, the Ld. CIT(A) ought not to have upheld the addition of ₹ 1,50,91,800 as unaccounted business income instead of short term capital gain on substantive basis in the hands of the appellant in respect of land deal bearing survey No.206 at Chandlodiya. The enhancement made by CIT(A) was illegal unlawful and without jurisdiction apart from against the principles of natural justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patel were second party in the same and S/sh Bhagwan Ajara and Dipak Prajapati were buyers therein. The above stated Banakhat contains signature of S/sh Anil Darji, Brijesh Patel and Dipak ji Prajapati. This was followed by the registered sale deed in question being executed on 17-11-2009 in previous year relevant to the impugned assessment year stating consideration of ₹ 73,58,000/-. Shri Vikas R. Patel in his search statement deposed that this sale deed involved cash payment of ₹ 1.5 crores made to Shri Darji and others. 22. The assessee filed his return on 28-03-2011 declaring total income of ₹ 37,16,870/- followed by a revised one on 08-11-2011 increasing income to ₹ 44,36,870/-. The Assessing Officer issued section 143(2) notice dated 19-09-2011alleging that the above stated sale deed and agreements involved the impugned cash sum of ₹ 1.5 crores on 8 occasions from 03-05-2008 to 07-08-2008 against registered sale deed price of ₹ 73.58 lacs. He referred to assessee s statement u/s. 131 dated 16-06-2010 recorded before the ADIT(Investigation) confirming cash receipt of ₹ 36 lacs. The Assessing Officer sought to add further sum of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween Brijesh Patel and Dipak G Prajapati (First Party) and Amitkumar K Patel, Anilkumar G. Darji, Narendra Patel, Chandu Patel Shri Bhagyesh Patel (Second Party) for the purchase of said land. The banakhata was bearing the signatures of Shri Brijesh Patel, Dipak G Prajapati and Shri Anil G Darji. However, the banakhata was not bearing the signatures of Shri Amit Patel, Shri Narendra R Patel, Chandu Patel Shri Bhagyesh Patel 4. The sale deed of the land at Survey No 206 at Chandoliya admeasuring 3344.48 sq mtrs (or 3997.275 Sq Yard) was executed at ₹ 73,58,000 between Shri Anilkumar G. Darji, Shri Chandu Patel Shri Bhagyesh Patel (Sellers) and Shri Bhagwan Ajara Shri Dipak Prajapati (Buyers). The details of payment of ₹ 150 lakhs have been found on page 128, 129 132 of the Annexure A-3 seized from the residential premises of Shri Vikas R Patel. Shri Anil G Darji has also placed his signatures against the entries evidencing payment on these pages. From the details of these payments, it is established that the said MoU was duly executed and unaccounted payment of ₹ 150 lakhs was made on this land transaction (in accordance with statement of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al gain of ₹ 1,20,00,000 (ie ₹ 1,50,00,000-Rs 30,00,000) is made in the hands of Shri Anilkumar G Darji on 'substantive basis' as the seized banakhata was having the signature of Shri Anil G Darj'i only (among above persons). Corresponding protective addition of Short-term Capita] Gain is being made in the hands of Shri Amit Patel. Shri Narendra Patel. Shri Bhagyesh Pate] and Shri Chandubhai Patel at ₹ 30,00,000 each (ie ₹ 1,50,00,000 / 5). Penalty proceedings u/s 271AAA of the IT Act are initiated on undisclosed income of ₹ 1,20,00,000. 5. During the course of search another notarized document was seized vide page 24-27 of Annexure A/3 from the residence of Shri Vikas R Patel. As per this document, payment of ₹ 1,00,000 was made by Shri Anil G Darji to Shri Amit Patel Shri Narendra Patel, each, for transfer of rights in land at Survey No 206, Chandlodiya. In view of this, the assessee vide notice u/s 142(1) of the IT Act dated 20/12/11 was asked to explain the source of above payment. However, no explanation could be filed by the assessee. In view of this, ₹ 2,00,000 is added to the total income of the assesssee u/s 69 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions were only for earning profit. This fact is further evident when one looks at the kind of transactions entered into by the concerned persons. Originally five persons had joined to purchase this land however, two of the persons later withdrew because probably the earnings were not coming through within their desired time frame indicating thereby that all the persons had entered into the transactions only with a motive to earn profits by sale of the land within a very short while. In view of the above, the sale and purchase of the land at Survey No.206 at Chandlodiya is to be treated as business transaction and gains or losses if any are to be assessed as business income / business loss. 5.2 As far as the other inference is drawn by the Assessing Officer are concerned, the same are correct and flow naturally from the records seized during the search and seizure operation at the premises of Shri Vikas R. Patel. 5.3 As far as the protective addition in the hands of Shri Amit K. Patel and Shri Narendra R. Patel is concerned, it is seen that Shri Amit K. Patel and Shri Narendra R. Patel had transferred their rights in favour of Shri Anil G. Darji and the corresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consideration of ₹ 1,50,00,000/- in cash and ₹ 73,58,000/- by cheque. This banakhat has been signed by Shri Brijesh Patel and Shri Deepak Prajapati on behalf of the purchasers. However, on behalf of the sellers, only Shri Anil G. Darji has signed banakhat. The sale deed for land at survey No.206, Chandlodiya admeasuring 3344.48 sq. mtrs. was executed for a sum of ₹ 73,58,000/- between Shri Anil G. Darji, Shri Chandubhai Patel and Shri Bhagyesh Patel (sellers) and Shri Bhagwanbhai Ajara and Shri Deepak Prajapati (buyers). The details of payments of ₹ 1,50,00,000/- have been found on pages 128,129 and 132 of Annexure-A-3 seized from the residential premises of Shri Vikas R. Patel. Shri Anil G. Darji has also placed his signature against the entries evidencing payments on these entries. In view of the above facts, it become clear that the entire cash of ₹ 1,50,00,000/- in this case was received by Shri Anil G. Darji alone for the following reasons: (i) Shri Amit K. Patel and Shri Narendra R. Patel had already surrendered their interest in this land in favour of Shri Anil G. Darji vide banakhat dated 02.04.2008 as consequence of this banakhat the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions Rs.42,23,000 Less: The addition on amount of this transactions to be made to be returned income Rs.1,50,91,800/- Thus, the addition to be made in the hands of Shri Anil G. Darji from sale of this land is ₹ 1,50,91,800/- which has to be assessed as business income. 26. Shri S.N. Divetia files before us amended grounds of appeal seeking to raise an additional plea that both the lower authorities have erred in framing the impugned assessments u/s. 143(3) of the Act. His status is that all the relevant facts necessary for adjudicating this legal argument already on record. No additional material is required. He quotes tribunal s special bench decision in (2012) 137 ITD 26 (Mum) All Cargo Global Logistics Ltd vs. DCIT entertaining a similar legal ground subject to a caveat that no fresh fact is to be entertained or examined. Learned counsel submits that the hon ble apex court in NTPC case 229 ITR 383 has already held that this tribunal can very well entertain a pure question of law have all relevant facts on record in order to ascertain the correct tax liability. 27. Shri Divetia ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this legal plea only after taking into account the relevant explanation for not having raised before the lower authorities. He supports the impugned assessment framed u/s. 143(3) of the act as against section 153C. Sections 292B 292BB in the nature of validating provision are quoted in support. Shri Jagdish thereafter seeks to defend the impugned addition made by the lower authorities on merits. 30. We afforded rebuttal opportunity to Shri Divetia. He reiterates his earlier submissions. He comes to sections 292B and 292BB. It is stated that the former one cures only mistakes, defects and omissions and latter one deals with non-service of notice within time or manner prescribed. Learned counsel emphasizes that his legal plea seeking to quash the impugned regular assessment is neither mistake nor defect or omission but the one touching the very assumption of jurisdiction. He accordingly prays for quashing the assessment under challenge. 31. We have heard rival submissions. There is no dispute that the impugned search was conducted on 04-03-2010 leading to seizure of MOU/agreements dated 03-05-2008 and 13/05/2008 pertaining to the land in question whose sale deed was execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [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:] x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x [(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 of furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action when an Assessing Officer having jurisdiction over a third party receives the relevant record after the due date for furnishing return of income for assessment year relevant to the previous year in which search is conducted. We are of the opinion all these expressions are to be construed as they appear without any further emphasis being supplied. Then come the specific wordings search is conducted . We deem it appropriate to observe that the legislature itself has chosen to use this expression instead of search only. We are of the opinion that the legislative intention in using the former expression is clear that only the date of actual search matters in case the third party s Assessing Officer receives the relevant record after due date of filing return and not the one deemed under 1st proviso to section 153C(1) as this proviso does not put any embargo on operation of sub-section 2. Meaning thereby that the same cannot be read as part of the latter sub-section 2. 35. We stay on the three specific clauses (a) to (c) to sub-section 2 of section 153C of the Act. They contemplate three eventualities for an Assessing Officer to deal with before proceedings u/s. section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason for us to disagree with the legal position settled by hon ble Delhi high court or for that the ld. co-ordinate bench decision. It is evident that Hon ble Delhi high court quashed 153C assessments framed in assessment years 2003-04 and 2004-05 in case of a search conducted on 20-10-2008 followed by section 153C satisfaction dated 08-09-2010. Their lordships held that six preceding assessment years in this factual backdrop would not include the above stated two assessment years u/s. 153(1) proviso. The tribunal s decisions also follow the same principle. We also support ratios propounded therein that an Assessing Officer having jurisdiction over a third person has to proceed u/s. 153C of the Act by following 1st proviso. These cases do not anywhere deal with relevant stipulation u/s. 153C(2) of the Act. We accordingly distinguish the same in view of our reasoning hereinabove. 37. We come to learned counsel submission that the Assessing Officer has himself proceeded against the co-vendors u/s. 153C of the Act. There is no material placed before us as to whether those cases satisfied all the relevant conditions for exigibilty of section 153C or not i.e. they furnished thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire cash payment of ₹ 1.5 crores in assessee s hands thereby partly modifying Assessing Officer s action as extracted hereinabove. The corresponding grounds raised in the instant appeal accordingly fail. 40. The assessee s next substantive ground pleads that the CIT(A) has erred in treating the impugned additions as his business income instead of short term capital gains. It has come on record that the assessee has purchased land in question having huge potential signed joined MOU and ventures, acquired agricultural land having old condition liable to premium for non-agricultural purposes and sold the same within a very short span of time after changing its usage in the impugned three assessment years. We draw inference from assessment year 2007-08 and 2008-09 as well subject matter of this very order to observe that this assessee has been acting in a well planned manner in real estate business thereby purchasing lands at cheaper rates and executing sales thereof at premium prices in addition to huge cash payments being received from the vendees. We uphold CIT(A) s action. The assessee s corresponding ground is accordingly rejected. 41. Next come assessee s substantive ..... 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