TMI Blog2020 (1) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 (8) TMI 425 - DELHI HIGH COURT] the satisfaction recorded by the learned Assessing Officer is grossly deficient and it does not fulfil the legal requirements to assume the jurisdiction under section 153C of the Act. No illegality or irregularity committed by the Ld. CIT(A) in holding that for the assessment year 2009-10 also the Assessing Officer should have recorded satisfaction and after issuing notice under section 153C of the Act should have framed the assessment, and the procedural lapse in this matter goes to the root of the matter and vitiates the proceedings. - Decided against revenue - I.T.A. Nos.6895& 6896/Del/2015 And I.T.A. No. 248/Agra/2016 - - - Dated:- 21-1-2020 - Shri Prashant Maharishi, Accountant Member And Shri K. Narasimha Chary, Judicial Member For the Revenue : Ms. Nidhi Srivastava, CIT/DR For the Department : Sh. Sudesh Garg, Advocate Sh. R.N. Poonia, AR ORDER PER K. NARASIMHA CHARY, JM Challenging the separate orders dated 05.10.2015 for assessment years 2007-08 and 2008-09 and order dated 18.05.2016 for assessment year 2009-10 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various decisions of the Tribunal and courts such additions in the absence of any incriminating material are not sustainable. 5. Ld. CIT(A) observed that in view of the fact that the legal grounds go to the root of the case and the recording of satisfaction and the very initiation of proceedings under section 153C of the Act of the Act were challenged, it was desirable to take up such grounds for adjudication first. As a matter of fact he observed that from the assessment order it could be observed that the Assessing Officer has not referred to any seized material/document belonging to or relating to the assessee company which could be considered to be the basis for assessment under section 153C read with section 153A of the Act; that the learned Assessing Officer referred to the books of accounts of the assessee company which were submitted by the assessee to be the regular books of account based on which the original return of income was filed under section 139 of the Act and the learned Assessing Officer had not even referred to such audited books of accounts while considering the other additions and the basis for the learned Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, the CIT(A) has erred in observing that the criteria for initiating 153C proceedings is belongingness of the documents instead of relation of the information in the documents to the assessee. 5. On the facts Circumstances of the case, the CIT(A) has erred in holding that order u/s. 153C can be passed only on the basis of seized documents. 7. It is the submission of the Ld. DR that from a bare reading of the provisions of section 153A of the Act and 153C of the Act it is clear that the basic prerequisite to issue notice under section 153C of the Act is that the learned Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitionedbelongs or belonged to a person other than the person referred to in section 153A of the Act and if the Assessing Officer is so satisfied he shall assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition made. She further submitted that the learned Assessing Officer was well within the ambit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the seized incriminating documents. He submits that both these contentions of the Revenue are fully settled by numerous decisions of the Hon ble jurisdictional High Court and also several cases wherein action under section 153C of the Act was taken in the case of assessee group itself under the same set of facts and circumstances, and such entities include M/s Natural Product Biotech Ltd, M/s NageshwarInvestment Ltd, M/s Global Heritage Ventures Ltd, M/s Narendra Impex Ltd, M/s NS Software, M/s Global Reality Creations Ltd, M/s globalTele-ventures Ltd, and M/s ChitrakootMerchandise Private Limited. 10. Stressing on the necessity of belongingness of documents for assumption of jurisdiction under section 153C of the Act, he submitted that this issue has been dealt with in great details by the Hon ble jurisdictional High Court in the case of PepsiCo India Holdings Private Limited (supra) and Pepsi Foods Private Limited (supra) and submitted that the Hon ble High Court categorically held that it is essential that the seized documents must belong to the persons other than the person searched, to enable the assumption of valid jurisdiction under section 153C of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements to assume the jurisdiction under section 153C of the Act. 14. On a perusal of the orders of the Tribunal in the cases of natural products Bio Tech Ltd. in ITA No. 3089/Del/2013 and batch, NageshwarInvestment Ltd in ITA No. 5393/Del/2012 and batch, M/s Global Heritage Ventures Ltd in ITA No. 3196 /Del/ 2013, Narendra Impex Ltd in ITA No. 5945/del/2013, M/s Global Reality Creations Ltd in ITA No. 245/del/2014, M/s Global Heritage Ventures Ltd in ITA No. 1335/del/2014, M/s global Tele-ventures Ltd in ITA No. 1341/del/2014, M/sChitrakoot Merchandise Private Limited in ITA No. 6801 /Del/ 2013, we find that all these entities are covered by the search that took place on 31/7/2008 in the Raj Durbar group of cases. In all these matters, in identical circumstances, the assumption of jurisdiction under section 153C of the Act was called in question with reference to the decisions of the Hon ble High Court in the cases of Pepsi Foods Private Limited (supra) and PepsiCo India Holding Private Limited (supra). In all these matters, wherein the facts are identical, while referring to the decision of the Hon ble jurisdictional High Court in the cases of PepsiCo India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012) 346 ITR 177 the case of the assessee for assessment year 2009-10 was to be assessed under section 153C of the Act; that inasmuch as the Assessing Officer neither recorded any satisfaction for this assessment year in the case of the assessee nor issued any notice under section 153C of the Act and make assessment under section 153C of the Act read with section 153A of the Act, rather assessed the same under section 143(3) of the Act after issuing notice under section 143(2) of the Act, without recording the mandatory satisfaction the assessment, and it is, therefore, bad under law. 18. Insofar as the above stated dates are concerned, there is no dispute. Since a notice under section 143(2) of the Act could have been issued till 30/9/2010 and the learned Assessing Officer of the assessee is in possession of the seized documents in his capacity as the learned Assessing Officer of the person other than the searched person on 10/3/2010, the pending assessment stands abated and the Assessing Officer should have recorded satisfaction and issued notice under section 153C of the Act. Learned Assessing Officer even after resuming possession of the documents in his capaci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
