THE INCOME TAX APPELLATE TRIBUNAL IN (DELHI
Transcription
THE INCOME TAX APPELLATE TRIBUNAL IN (DELHI
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 2 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 3 ITA NO. 6404 to 6409 /DEL/2013 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 4 ITA NO. 6404 to 6409 /DEL/2013 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 5 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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 6 ITA NO. 6404 to 6409 /DEL/2013 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 7 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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 8 ITA NO. 6404 to 6409 /DEL/2013 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 9 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 10 ITA NO. 6404 to 6409 /DEL/2013 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 11 ITA NO. 6404 to 6409 /DEL/2013 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.” 12 ITA NO. 6404 to 6409 /DEL/2013 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. 13 ITA NO. 6404 to 6409 /DEL/2013 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 14 ITA NO. 6404 to 6409 /DEL/2013 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 15 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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. 16 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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 17 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) 18 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). 19 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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 22 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 25 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 26 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) 27 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 28 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.” 29 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. 31 ITA NO. 6404 to 6409 /DEL/2013 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 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014 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 34 ITA NO. 6404 to 6409 /DEL/2013 C.O. No. 353 to 358 /DEL/2014