TMI Blog2016 (6) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... ENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For The Assessee : Sh. R.S. Singhvi, CA and Sh. Satyajit Goel, CA For The Revenue : Sh. Ravi Jain, CIT DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER: ITA 3951 has been preferred by the department against the impugned order dated 22.05.2012 passed by the Ld. CIT (A) III, New Delhi for AY 2007-08 whereas CO 138 has been preferred by the asssessee for the same year. ITA 3952 has been preferred by the department against the impugned order dated 23.05.2012 passed by the Ld. CIT (A) III, New Delhi for AY 2008-09 whereas CO 139 has been preferred by the asssessee for the same year. ITA 3953 has been preferred by the department against the impugned order dated 23.05.2012 passed by the Ld. CIT (A) III, New Delhi for AY 2009-10. All these appeals/CO were heard together and since the issue involved is common in all the three years, the same are being disposed of through this common order. 2. The facts of the case are that there was search u/s 132 of the Income Tax Act, 1961 in the case of Nimitya Group of Companies (of Sh. Sanjeev Mahajan) along with the alleged sub group known as Ninex Group (of Sh. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the following grounds - A. Grounds of ITA No. 3951/D/2012: 1. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of ₹ 11,25 crores made by the Assessing Officer on account of unaccounted cash receipts by holding that the seized document does not belong to the assessee. 2. On the facts and in the circumstances of the case, the CIT (A) has not correctly interpreted the provisions of section 153A r.w.s. 132(4A) and 292C of the Income Tax Act, 1961. 3. On the facts and in the circumstances of the case, the CIT (A) has not appreciated the fact that the CIT (A) himself has confirmed the addition of ₹ 11.25 crores made in the hands of Sh. Sanjeev Mahajan on acount of unaccounted cash payments on the basis of same document thus validating the transaction recorded in the seized document and the stand taken by the AO. 4. The order of the CIT (A) is erroneous and is not tenable on facts and in law. 5. 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. B. Grounds of ITA No. 3952/D/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.25 crores on the basis of documents found and seized from 3rd party namely Sh. Sanjeev Mahajan as a result of search u/s 132(1) without recording satisfaction u/s 153C by the AO of Sh. Sanjeev Mahajan in order to consider any such addition in the case of the appellant. 2. That addition of ₹ 11.25 crores is illegal, arbitrary and without jurisdiction as same is in total disregard to provisions of sec. 153C of the Income Tax Act, 1961 and scheme of the Act. E. Grounds of CO No. 139/D/2013: 1. That on the facts and circumstances of the case, there is no justification for addition of ₹ 5.35 crores on the basis of documents found and seized from 3rd party namely Sh. Sanjeev Mahajan as a result of search u/s 132(1) without recording satisfaction u/s 153C by the AO of Sh. Sanjeev Mahajan in order to consider any such addition in the case of the appellant. 2. That addition of ₹ 5.35 crores is illegal, arbitrary and without jurisdiction as same is in total disregard to provisions of sec. 153C of the Income Tax Act, 1961 and scheme of the Act. 4. We deem it appropriate to first take up the CO s of the assessee and then the appeals will be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents found as a result of search. No such documents have been found in the case of assessee and even the referred seized annexure found from the possession of Sanjeev Mahajan does not belong to or is relevant to the assessee. It was submitted that the assessee is not the owner of hotel in Citi Mart Project and as such the question of sale or consequential receipt does not arise. The Assessing Officer has not even addressed the basic fact about the ownership of hotel, sale thereof and consequential capital gain. It is self evident that no such satisfaction has been recorded or it is not even the case of Assessing Officer that provision of Sec. 153C are applicable. It also submitted that the Assessing Officer has made reference to various facts in a highly arbitrary manner and out of context. It is not the case of Assessing Officer that cheque payment referred to in the seized annexure was received by the assessee from Sh. Sanjeev Mahajan and as such a part of the seized annexure has wrongly been attributed to the assessee merely for the purpose of addition of alleged cash payments. Even though it was clarified that the alleged hotel property does not belong to and owned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action note with respect to other entities was not available/recorded by A.O. of searched person and further on the direction of Ld.D.R., A.O. Central Circle-17, written to Ld.D.R. vide letter dt. 9.9.2014 wherein he had mentioned to have enclosed satisfaction note recorded by the A.O. of such other person. The copy of satisfaction note enclosed with the letter was prepared by A.O. of other entities who had assumed jurisdiction by invoking provisions of S.153 C...... 7.1. We observe that on the basis of replies obtained by assessee under RTI and on the basis of reply of A.O. Central Circle 21, to Ld.D.R. the satisfaction note dated 10.9.2010 is the satisfaction note prepared by A.O. of the other persons. This fact is further fortified from the fact that on the same day of recording satisfaction on 10.9.2010, the AO had raised notices, u/s 153C of the Act as placed in paper book page 1. 8. The Revenue has not placed any material to dispute the factual finding of the ITAT that the requirement of the law explained by this Court in Pepsi Foods regarding the recording of satisfaction by the AO even in respect of the searched person was not fulfilled. Consequently, the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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