TMI Blog2017 (8) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... n of jurisdiction by the A.O under Sec. 153C. We thus of the considered view that the A.O had clearly traversed beyond the scope of his jurisdiction u/s. 153C and therein proceeded with and framed assessment u/s. 153A r.w.s. 153C/143(3) in the hands of the assessee company. We thus finding no infirmity in the order of the CIT(A), therefore, uphold the same and dismiss the appeal of the revenue. - I.T.A. No (s).4055 - 4060/Mum/2015 - - - Dated:- 28-7-2017 - Shri R. C. Sharma, AM And Shri Ravish Sood, JM Revenue by : Shri. Rahul Raman, D.R Assessee by : Shri. Nikhil Bhoot, A.R ORDER Per Ravish Sood, Judicial Member The present appeals filed by the revenue are directed against the consolidated order passed by the CIT(A)-48, Mumbai for A.Y. 2005-06 to A.Y. 2010-11, dated 24.04.2015, which in itself arises from the respective orders passed by the A.O under Sec. 153A r.w.s. 153C/143(3) of the Income-tax Act, 1961 (for short Act ), each dated. 31.03.2013. That as a common issue is involved in the respective appeals, therefore, for the sake of convenience they are clubbed and disposed of by a consolidated order. We herein first take up the appeal for A.Y. 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the company changed hands and in May 2010, the Lodha Group were inducted as the promoters of the company and the main object of the company was changed to real estate development. BRIEF FACTS OF THE CASE:- 3. Briefly stated, the facts of the case are that search and seizure action was carried on 10.01.2011 in the hands of the Lodha Group of entities, which included individual members of the Lodha family, as well as the group companies and entities. That as the assessee company had became a part of Lodha Group (supra) in the year 2010, therefore, at the time of the search action, its premises at Wagle estate where the project of the Lodha Group (supra), viz. Lodha Excellencia was coming up, was covered u/s. 133A. That during the course of the search and seizure proceedings the key person of the Lodha Group (supra), viz. Shri Abhinandan Lodha came up with a disclosure of ₹ 199.80 crores and offered the same as additional income in his statement recorded u/s. 132(4) on 11/12.01.2011, which thereafter was confirmed by him again in his statement recorded u/s. 132(4) on 10.03.2011, and details of the unaccounted income was furnished by him in Annexure-1 in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding years, viz. A.Y. 2006-07 to A.Y. 2010-11, therein observed as under:- 5.11. I have perused the document pages 107-108 relied on by the assessing officer for assuming jurisdiction u/s 153C of the Act. This document is a minutes of SCUD meeting giving details of projects, customers, flat booked by them, area of the flat, consideration, and deviation from listed price. The remarks column explains the deviation and indicates in many cases payment in cash euphemistically referred to as payment in other mode . However, this document does not make any reference to any project of the appellant in this case viz. Lodha Excellencia. The seized document does indicate the modus operandi of the Lodha Group of receiving on-money. However, this seized document, in respect of which the assessing officer has required the appellant to provide the explanation, does not bear any reference to the transactions entered into by the appellant, so as to enable assumption of jurisdiction u/s 153C. From the perusal of the facts of the case it can only be said that the assessing officer in order to assume jurisdiction u/s 153C of the Act has placed its reliance on the statement recorded on oath of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction u/s. 153C, had therein carried the matter in appeal before us. That during the course of the hearing of the appeal it was vehemently submitted by the ld. Departmental Representative (for short D.R.) that the CIT(A) had wrongly concluded that the assumption of jurisdiction by the A.O under Section 153C was not in conformity with the provisions contemplated under the said statutory provision. It was submitted by the ld. D.R. that as the A.O of the searched person by referring to the loose papers marked as Annexure A-4 - Page no. 107-108 seized during the course of the search and seizure proceedings conducted on the Lodha Group (supra), had recorded his satisfaction in the Order sheet dated 24.09.2012, therefore, there was enough incriminating material on record which justified the assumption of jurisdiction by the A.O under Sec. 153C in the hands of of the assessee company. It was further submitted by the ld. D.R. that the A.O during the course of the assessment proceedings had vide his Order sheet noting dated 18.03.2013 called upon the assessee to show cause as to why the receipt of on-money as was discernible from a perusal of the aforesaid loose papers , viz. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was thus averred by the ld. A.R that failing satisfaction of the aforesaid preconditions, the A.O of the Other person would remain divested of his jurisdiction to proceed with and frame assessment in the latters hand. The ld. A.R submitted that as during the course of the search and seizure proceedings conducted in the case of Lodha Group (supra), not only any document belonging to the assessee company was seized, but rather the facts of the case revealed that no such document relating to or even referring to the assessee, much the less belonging to it, was seized. The ld. A.R. further submitted that the A.O had tried to justify the assumption of jurisdiction under Sec. 153C on the pretext that the seized documents, viz. Annexure A-4 - Page No. 107-108 which related to SCUD meeting and revealed receipt of On-money pertaining to sale of flats/parking space, was relatable to the assessee. The ld. A.R in order to disprove and dislodge the aforesaid observations of the A.O, therein took us through the relevant pages of the Order sheet of the A.O, placed at Page No.2-5 of his Paper book (APB) and drew our attention to the recordings by the A.O as on 05.03.2013 and 18.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the A.O had wrongly assumed jurisdiction u/s 153C, which could not be sustained in the eyes of law and thus was liable to be vacated. The ld. A.R in support of his aforesaid contention relied on a host of a judicial pronouncements, as under:- (i) CIT, Central-III, Mumbai Vs. Arpit land (P) Ltd. (2017) 78 taxmann.com 300 (Bom) (ii) CIT-3, Pune Vs. Sinhgad Technical Education Society (2015) 63 taxmann.com 14 (Bom) (iii) Pepsico India Holdings (P) Ltd. Vs. ACIT (2014) 50 taxmann.com 299 (Del) (iv) Vijaybhai N. Chandrani Vs. ACIT (2010) 231 CTR 474 (Guj) (v) Megmani Organics Ltd. Vs. DCIT (2010) 129 TTJ 255 (Ahd). 8. The ld. A.R further submitted that the A.O in his attempt to justify the validity of the jurisdiction assumed by him under Sec. 153C in the case of the assessee, had therein referred to and taken support of the statement of Shri Abhinandan Lodha recorded under Sec. 132(4) during the course of search and seizure proceedings conducted in the case of Lodha group (supra), wherein a disclosure of ₹ 110.25 lacs was made by him as regards sale of parking space in the hands of the assessee company for A.Y 2011-12. The ld. A.R submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hly deliberating on the facts of the case in light of the settled position of law duly appreciated the absence of compliance of the preconditions for valid assumption of jurisdiction under Sec. 153C by the A.O, and had thus rightly struck down the assessment framed by the A.O. The ld. A.R thus averred that as the appeal of the revenue was devoid of any force, therefore, the same was liable to be dismissed. 9. We have heard the Authorized Representatives for both the parties, perused the orders of the lower authorities and the material available on record. We are of the considered view that before adverting to and adjudicating the validity of the assumption of jurisdiction by the A.O under Sec. 153C in the case of the assessee company, it would be relevant to refer to the relevant extract of the pre-amended Sec. 153C, as was applicable in the case of the assessee, and read as under:- Sec. 153C. (1) Notwithstanding anything contained in s. 139, s. 147, s. 148,s. 149,s. 151 and s. 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 belongs to, or any books of account or documents seized or requisitioned pertain to, or any information contained therein, relates to any 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 and that 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 the provisions of section 153A . That as the aforesaid amendment to Section 153C is not retrospective in nature and is applicable only w.e.f 01.06.2015, therefore, the case of the present assessee company would be regulated by the preamended provisions as were available on the statute till 30.05.2015. We find that our aforesaid observations stands fortified by the judgment of the Hon ble High Court of Bombay in the case CIT, Central-3, Mumbai Vs. Arpit Land (P) Ltd., (2017) 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee company. We find that a bare perusal of the aforesaid seized documents viz. Page No. 107-108 (supra) does neither make any reference of the assessee company, nor of any transaction entered into by the latter, which could go to justify the assumption of jurisdiction by the A.O under Sec. 153C. We are of the considered view that in the absence of any document belonging to the assessee having been seized during the course of search proceedings in the case of Lodha Group (Supra), the assumption of jurisdiction by the A.O under Sec. 153C by referring to the aforesaid seized doucuments, viz. Page No. 107-108 (supra), is highly misplaced. We further find ourselves to be in agreement with the ld. A.R that despite specific requests made by the assessee vide his reply dated 22.03.2013 filed in response to the Show cause notice issued by the A.O, therein calling upon the latter to explain as to how the incriminating documents, viz. Page No. 107-108 (supra) were alleged to be related to the assessee company, no reply had been furnished by the A.O. We further find that the contention of the assessee raised before the A.O that the same seized documents, viz. Page No. 107-108 (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Statement of Sh. Abhinandan Lodha (supra) recorded under Sec. 132(4) in the course of search and seizure proceedings conducted in the case of Lodha group (supra) cannot be construed as a seized document , therefore, the reliance placed by the A.O on the same to justify the validity of jurisdiction assumed under Sec. 153C in the hands of the assessee company, cannot be accepted. We are further of the considered view that even otherwise as the disclosure of additional income of ₹ 110.25 lacs made by Sh. Abhinandan Lodha (supra) in his statement recorded under Sec. 132(4), in the hands of the assessee company is relatable to A.Y. 2011-12, and does not pertain to any of the years in respect of which jurisdiction had been assumed by the A.O under 153C in the case of the assessee company, therefore, the same on the said count also shall in no way go to confer validity to the assumption of jurisdiction by the A.O under Sec. 153C. 13. We thus in light of our aforesaid observations are of the considered view that the A.O had clearly traversed beyond the scope of his jurisdiction u/s. 153C and therein proceeded with and framed assessment u/s. 153A r.w.s. 153C/143(3) in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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