Sh. Ram Mehar Garg, New Delhi V. ACIT, New Delhi

CO 138/DEL/2013

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4104 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Keywords: Income from undisclosed sources; Reassessment proceedings
• Section: 153A; 148; 132

Judgement Text

1 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDEN T & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NOS.-3951, 3952 & 3953/DEL/2012 ( ASSESSMENT YEARS : 2007-08 TO 2009-10) ACIT, CIRCLE -22, NEW DELHI. VS RAM MEHAR GARG, AKG FARMS, DERA MANDI VILLAGE, SULTANPUR, MEHRAULI, NEW DELHI. AGZPG4030F & CROSS OBJECTION NOS. 138 & 139/DEL/2013 ( IN ITA NOS. 3951 & 3952/DEL/2012) ( ASSESSMENT YEARS : 2007-08 & 2008-09) RAM MEHAR GARG, AKG FARMS, DERA MANDI VILLAGE, SULTANPUR, MEHRAULI, NEW DELHI. AGZPG4030F VS ACIT, CIRCLE -22, NEW DELHI. ASSESSEE BY SH. R.S. SINGHVI, CA & SH. SATYAJIT GOEL, CA REVENUE BY SH. RAVI JAIN, CIT DR DATE OF HEARING 04.05.2016 DATE OF PRONOUNCEMENT 30.06.2016 2 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER : ITA 3951 HAS BEEN PREFERRED BY THE DEPARTMENT AGA INST THE IMPUGNED ORDER DATED 22.05.2012 PASSED BY THE LD. C IT (A) III, NEW DELHI FOR AY 2007-08 WHEREAS CO 138 HAS BEEN PREF ERRED 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 2 008-09 WHEREAS CO 139 HAS BEEN PREFERRED BY THE ASSSESSEE FOR THE SAME YEAR. ITA 3953 HAS BEEN PREFERRED BY THE DEPARTMENT AGAIN ST THE IMPUGNED ORDER DATED 23.05.2012 PASSED BY THE LD. C IT (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 O F COMPANIES (OF SH. SANJEEV MAHAJAN) ALONG WITH THE ALLEGED SUB GROUP KNOWN AS NINEX GROUP (OF SH. RAM MEHAR GARG I.E. THE ASSE SSEE AND SH. 3 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 JAGMINDER GUPTA). ADDITIONS HAVE BEEN MADE TO THE I NCOME OF THE ASSESSEE FOR ALL THE YEARS ON THE BASIS OF A SEIZED DOCUMENT ANNEXURE A-1 PAGE 37 FOUND FROM THE POSSESSION OF S H. SANJEEV MAHAJAN OF NIMITYA GROUP WHEREAS THE ASSESSEE HAS BE EN STRONGLY CONTENDING ALL THROUGH OUT THAT AS A RESULT OF SEAR CH IN THE CASE OF ASSESSEE, NO INCRIMINATING DOCUMENT OR MATERIAL WAS FOUND OR SEIZED RELATING TO ANY UNDISCLOSED INCOME WHEREAS TH E AO HAS ALLEGED THAT THE ABOVE REFERRED SEIZED ANNEXURE CON TAINS DETAILS OF PAYMENT MADE BY SH. SANJEEV MAHAJAN TO SH. RAM MEHA R GARG AGAINST SALE OF PROPERTY REFERRED TO AS HOTEL IN CI TY MART PROJECT AND THE SAME WAS TREATED AS UNACCOUNTED INCOME IN THE H ANDS OF THE ASSESSEE. AS PER THE AO, THERE IS REFERENCE TO CAS H PAYMENT IN THE SAID ANNEXURE A- 1 TO THE EXTENT OF RS. 20.10 CRORE S PERTAINING TO AY 2007-08 TO 2009-10 AS PER DETAILS GIVEN HERE UND ER: ASSESSMENT YEAR RETURNED INCOME ASSESSED INCOME ADDITION ON ACCOUNT OF SEIZED DOCUMENT OF SH. SANJEEV MAHAJAN 2007-08 15,01,874.00 11,40,01,874.00 11,25,00,000.0 0 2008-09 8,52,730.00 5,43,52,730.00 5,35,00,000.00 2009-10 20,56,731.00 3,70,56,731.00 3,50,00,000.00 TOTAL 20,10,00,000.00 4 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 3. IN THE FIRST APPELLATE PROCEEDINGS, THE ADDITION S WERE CHALLENGED ON MERITS AS WELL AS ON THE LEGAL GROUND THAT THE P ROCEEDINGS U/S 153A OF THE ACT WERE NOT LEGALLY TENABLE AS THERE WAS NO REFERENCE TO ANY SEIZED DOCUMENT FOUND FROM THE POSSESSION OF THE ASSESSEE OR FOUND BELONGING TO THE ASSESSEE IN THE CONTEXT O F ALLEGED UNDISCLOSED INCOME OF THE ASSESSEE AND THAT THE ENT IRE ADDITION WAS BASED ON ANNEXURE -1 SEIZED FROM THE POSSESSION OF MR. SANJEEV MAHAJAN. IT WAS ALSO PLEADED THAT NO SATISF ACTION WAS RECORDED U/S 153C BY THE AO HAVING JURISDICTION OVE R THE CASE OF SHRI SANJEEV MAHAJAN. THE LD. CIT (A) DELETED THE ENTIRE ADDITIONS IN ALL THE THREE YEARS ON THE GROUND THAT THE AO CO ULD NOT DEMONSTRATE THAT THE SEIZED DOCUMENT BELONGED TO TH E ASSESSEE. NOW BOTH THE DEPARTMENT AS WELL AS THE ASSESSEE ARE BEFORE THE TRIBUNAL AND HAVE FRAMED 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 TH E ADDITION OF RS. 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 PROVISION S OF 5 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 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 RS. 11.25 CRO RES 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 I N THE SEIZED DOCUMENT AND THE STAND TAKEN BY THE AO. 4. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NOT TE NABLE 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 T HE COURSE OF THE HEARING OF THE APPEAL. B. GROUNDS OF ITA NO. 3952/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 TH E ADDITION OF RS. 5.35 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 PROVISION S 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 RS. 2.35 CROR ES OUT OF RS. 5.35 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 TE NABLE ON FACTS AND IN LAW. 6 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING T HE COURSE OF THE HEARING OF THE APPEAL. C. GROUNDS OF ITA NO. 3953/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 TH E ADDITION OF RS. 3.50 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 PROVISION S 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 RS. 3.50 CROR ES 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 I N THE SEIZED DOCUMENT AND THE STAND TAKEN BY THE AO. 4. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NOT TE NABLE 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 T HE COURSE OF THE HEARING OF THE APPEAL. D. GROUNDS OF CO NO. 138/D/2013 : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH ERE IS NO JUSTIFICATION FOR ADDITION OF RS. 11.25 CRORE S ON THE BASIS OF DOCUMENTS FOUND AND SEIZED FROM 3 RD PARTY NAMELY SH. SANJEEV MAHAJAN AS A RESULT OF SEARCH U/ S 132(1) WITHOUT RECORDING SATISFACTION U/S 153C BY T HE AO OF SH. SANJEEV MAHAJAN IN ORDER TO CONSIDER ANY SUCH ADDITION IN THE CASE OF THE APPELLANT. 7 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 2. THAT ADDITION OF RS. 11.25 CRORES IS ILLEGAL, ARBIT RARY AND WITHOUT JURISDICTION AS SAME IS IN TOTAL DISREG ARD 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, TH ERE IS NO JUSTIFICATION FOR ADDITION OF RS. 5.35 CRORES ON THE BASIS OF DOCUMENTS FOUND AND SEIZED FROM 3 RD PARTY NAMELY SH. SANJEEV MAHAJAN AS A RESULT OF SEARCH U/ S 132(1) WITHOUT RECORDING SATISFACTION U/S 153C BY T HE AO OF SH. SANJEEV MAHAJAN IN ORDER TO CONSIDER ANY SUCH ADDITION IN THE CASE OF THE APPELLANT. 2. THAT ADDITION OF RS. 5.35 CRORES IS ILLEGAL, ARBITR ARY 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 COS OF THE ASSESSEE AND THEN THE APPEALS WILL BE TAKEN UP ON MERITS, IF SO REQUIRED. 5.THE LD. AR SUBMITTED THAT IT IS EVIDENT THAT THE AO HAS MADE ADDITION ON MECHANICAL BASIS EVEN WITHOUT MAKING NEC ESSARY ENQUIRIES FROM SH. SANJEEV MAHAJAN. IT WAS SUBMITTED THAT IN THIS CASE THE PROCEEDINGS U/S 153A ARE ILLEGAL AND WITHOU T JURISDICTION AS THERE IS NO REFERENCE TO ANY SEIZED DOCUMENT FOU ND FROM THE POSSESSION OF THE ASSESSEE OR BELONGING TO THE ASSE SSEE IN THE CONTEXT OF UNDISCLOSED INCOME. IN FACT, IN THE ASS ESSMENT ORDER 8 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 ITSELF, THE AO HAS NOT MADE REFERENCE TO ANY SEIZED DOCUMENT FOUND FROM THE POSSESSION OF THE ASSESSEE FOR THE PURPOSE OF ANY ADDITION AND WHOLE BASIS OF ADDITION IS IN THE CONTEXT OF SEI ZED ANNEXURE FOUND FROM SH. SANJEEV MAHAJAN DURING THE COURSE OF SEARCH AND AO HAS CONSIDERED THE SAID ANNEXURE IN THE CASE OF ASSESSEE FOR THE PURPOSE OF ADDITION, WITHOUT PROPERLY APPRECIATING T HE NATURE OF SEIZED ANNEXURE OR WITHOUT PROPER INVESTIGATION AND EXAMINATION OF THE CONCERNED PARTIES. IT WAS ALSO SUBMITTED THAT T HE AO HAS WRONGLY CONSIDERED AND APPLIED THE SAID SEIZED ANNEX URE OF SH. SANJEEV MAHAJAN IN THE CASE OF APPELLANT EVEN THOUG H NO SATISFACTION HAS BEEN RECORDED U/S 153C BY THE AO H AVING JURISDICTION OVER THE CASE OF SH. SANJEEV MAHAJAN A ND IT IS EVIDENT THAT THE ABOVE REFERRED SEIZED ANNEXURE HAS NO RELE VANCE TO THE ASSESSEE AND HAS BEEN CONSIDERED AND APPLIED MERELY FOR THE PURPOSE OF ADDITION IN THE CASE OF ASSESSEE. IF TH E AO PROPOSED TO CONSIDER THE SAID SEIZED ANNEXURE IN THE CASE OF AS SESSEE, THE CONCERNED AO SHOULD HAVE RECORDED THE SAID SATISFAC TION IN THE CONTEXT OF PROVISION OF SEC. 153C. AS PER ASSESSME NT ORDER, THERE IS NO REFERENCE TO ANY SUCH SATISFACTION AND AS SUCH I MPUGNED ASSESSMENT IS ILLEGAL, ARBITRARY AND WITHOUT JURISDI CTION. 9 ITA NOS. 3 951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 6. IT WAS FURTHER SUBMITTED THAT THE ALLEGED SEIZED ANNEXURE HAS NO RELEVANCE TO THE ASSESSEE AS VARIOUS CHEQUE TRANSAC TIONS IN THE SAID ANNEXURE ARE BETWEEN OTHER PARTIES AS PER DETAILS GI VEN IN THE ASSESSMENT ORDER ITSELF. THE GENERAL REFERENCE TO C ITI MART HOTEL PROJECT WITH THE ASSESSEE IS ALSO FACTUALLY INCORREC T AND WITHOUT ANY BASIS. IT WAS SUBMITTED THAT THE ASSESSING OFFICER H AS NOT PROPERLY CONSIDERED THE RELEVANT FACTS AND PROVISIONS OF SEC TION 153A AND 153C OF THE I.T. ACT. THESE ARE SEARCH RELATED PROC EEDINGS AND PROVISIONS OF SECTION 153A AND 153C ARE APPLICABLE ONLY RELATING TO ANY UNDISCLOSED INCOME ON THE BASIS OF SEIZED DOCUM ENTS FOUND AS A RESULT OF SEARCH. NO SUCH DOCUMENTS HAVE BEEN FOU ND IN THE CASE OF ASSESSEE AND EVEN THE REFERRED SEIZED ANNEXURE F OUND 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 EV EN THE CASE OF 10 ITA NOS. 3951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 ASSESSING OFFICER THAT PROVISION OF SEC. 153C ARE A PPLICABLE. IT ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS MADE REFER ENCE TO VARIOUS FACTS IN A HIGHLY ARBITRARY MANNER AND OUT OF CONTE XT. IT IS NOT THE CASE OF ASSESSING OFFICER THAT CHEQUE PAYMENT REFER RED TO IN THE SEIZED ANNEXURE WAS RECEIVED BY THE ASSESSEE FROM SH . SANJEEV MAHAJAN AND AS SUCH A PART OF THE SEIZED ANNEXURE H AS WRONGLY BEEN ATTRIBUTED TO THE ASSESSEE MERELY FOR THE PURP OSE OF ADDITION OF ALLEGED CASH PAYMENTS. EVEN THOUGH IT WAS CLARIFIED THAT THE ALLEGED HOTEL PROPERTY DOES NOT BELONG TO AND OWNED BY THE A SSESSEE, THE ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE OF OWN ERSHIP OF HOTEL PROPERTY OR BROUGHT ANY CORROBORATIVE EVIDENCE ON R ECORD REGARDING THE OWNERSHIP OF THE ASSESSEE WITH THE SAID PROPERTY OR THE CONTEXT IN WHICH THE SAID ANNEXURE WAS CONSIDERED IN THE CASE OF THE ASSESSEE. IT WAS SUBMITTED THAT IN FACT THE ASSESSI NG OFFICER HIMSELF HAD ISSUED SHOW-CAUSE NOTICE TO M/S NIMITYA HOTEL & RESORTS PVT. LTD. IN THE CONTEXT OF CASH TRANSACTIONS ON THE BAS IS OF VERY SAME SEIZED ANNEXURE. IN FACT, THE ASSESSING OFFICER HAD ALREADY INITIATED REASSESSMENT PROCEEDINGS U/S 148 IN THE CASE OF NIM ITYA HOTEL & RESORT (P) LTD. IT WAS SUBMITTED THAT I IS VERY IMPO RTANT TO TAKE NOTE OF THE FACT THAT IN THE SHOW CAUSE NOTICE ISSUED TO M/S RAM MEHAR 11 ITA NOS. 3951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 GARG AND M/S NIMITYA HOTEL & RESORTS PVT. LTD. FOR ASSESSMENT YEARS 2008-09 AND 2009-10, THE ASSESSING OFFICER HA S SPECIFICALLY MADE REFERENCE TO ALLEGED CASH PAYMENT TO M/S NIMIT YA HOTEL & RESORTS PVT. LTD. 7. THE LD. DR PLACED RELIANCE ON THE ORDER OF THE A O. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE CONTENTION OF THE ASSESSEE IS THAT THE MANDATORY SATISFACTION NOTE, WHICH IS TO BE RECORDED BY THE A.O. OF THE SEARCHED PARTY DURING THE COURSE OF THE ASSESSM ENT PROCEEDINGS OF THE SEARCH PARTY FOR ASSUMING JURISDICTION U/S 1 53C OF THE ACT BY THE A.O. OF THE ASSESSEE, WAS NOT RECORDED. THE LD. DR COULD NOT CONTROVERT THESE FACTUAL SUBMISSIONS OF THE ASSESSE E. HE COULD NOT PRODUCE PROOF TO DEMONSTRATE THAT THE SATISFACTION HAS BEEN RECORDED BY THE A.O. OF THE SEARCHED PARTY. THUS, T HE A.O. WHO IS HAVING THE JURISDICTION OF THE SEARCHED PARTY, HAS ADMITTEDLY NOT RECORDED SATISFACTION NOTE, AS MANDATED BY LAW ENABL ING THE A.O. OF THE ASSESSEE TO ASSUME JURISDICTION U/S 153C OF THE ACT. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN ITA N OS. 509, 510 AND 12 ITA NOS. 3951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 513/2015 IN THE CASE OF P.R.CIT-CENTRAL II VS. AAKA SH AROGYA MANDIR P.LTD. VIDE ITS JUDGMENT DATED 28TH JULY, 20 15 HAS AT PARAS 7 AND 8 HELD AS UNDER: '7. SECONDLY, AS FAR AS THE FACTS OF THE PRESENT CA SE ARE CONCERNED, THE REVENUE HAS PLACED NO MATERIAL TO CH ALLENGE THE FOLLOWING FACTUAL FINDING RECORDED BY THE ITAT IN PARAS 5, 7.1 AND 8 OF THE IMPUGNED ORDER. 5. ............ INFORMATION OBTAINED BY LD.A.R. FRO M A.O. OF SEARCHED PERSONS AS PLACED AT PAPER BOOK PAGES 34- 38 CLEARLY MENTIONS THAT THE SATISFACTION NOTE WITH RESPECT TO OTHER ENTITIES WAS NOT AVAILABLE/RECORDE D BY A.O. OF SEARCHED PERSON AND FURTHER ON THE DIRECTIO N 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 HAV E ENCLOSED SATISFACTION NOTE RECORDED BY THE A.O. OF SUCH OTHER PERSON. THE COPY OF SATISFACTION NOTE ENCLOSE D WITH THE LETTER WAS PREPARED BY A.O. OF OTHER ENTITIES W HO HAD ASSUMED JURISDICTION BY INVOKING PROVISIONS OF S.153 C......' 7.1. WE OBSERVE THAT ON THE BASIS OF REPLIES OBTAIN ED BY ASSESSEE UNDER RTI AND ON THE BASIS OF REPLY OF A.O . CENTRAL CIRCLE 21, TO LD.D.R. THE SATISFACTION NOTE DATED 1 0.9.2010 IS THE SATISFACTION NOTE PREPARED BY A.O. OF THE OTHER PERSONS. THIS FACT IS FURTHER FORTIFIED FROM THE FACT THAT O N THE SAME DAY OF RECORDING SATISFACTION ON 10.9.2010, THE AO HAD RAISED NOTICES, U/S 153C OF THE ACT AS PLACED IN PA PER BOOK PAGE 1. 8. THE REVENUE HAS NOT PLACED ANY MATERIAL TO DISPU TE THE FACTUAL FINDING OF THE ITAT THAT THE REQUIREMENT OF THE LAW EXPLAINED BY THIS COURT IN PEPSI FOODS REGARDING TH E RECORDING OF SATISFACTION BY THE AO EVEN IN RESPECT OF THE SEARCHED PERSON WAS NOT FULFILLED. CONSEQUENTLY, TH E FACT 13 ITA NOS. 3951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 THAT IT WAS THE SAME AO BOTH FOR THE SEARCHED PERSO N AND THE ASSESSEE MAKES NO DIFFERENCE TO THE CONSEQUENCE OF NON- COMPLIANCE WITH THE LEGAL REQUIREMENT REGARDING THE RECORDING OF SATISFACTION. THE COURT ALSO AGREES WI TH THE ITAT THAT EVEN IF THE AO WERE THE SAME, SATISFACTIO N WOULD HAVE TO BE RECORDED SEPARATELY QUA THE SEARCHED PER SON AND THE ASSESSEE.' 9. RESPECTFULLY FOLLOWING THE HON'BLE JURISDICTIONA L HIGH COURT JUDGMENT CITED ABOVE, WE QUASH THE ASSESSMENT ORDERS FOR AY 2007-08 AND 2008-09 AND DISMISS ALL THE APPE ALS FILED BY THE REVENUE. THE CROSS OBJECTIONS OF THE ASSESSE E ARE ALLOWED. AS FAR AS AY 2009-10 IS CONCERNED, THE DEP ARTMENT HAS PREFERRED AN APPEAL (ITA NO. 3953/DEL/2012) AGA INST THE ORDER OF THE LD. CIT(A) BUT THE ASSESSEE HAS NOT FI LED ANY CO FOR THIS YEAR. HOWEVER, AS THE ENTIRE ASSESSMENT PRO CEEDINGS IN AY 2009-10 ALSO HAVE BEEN BASED ENTIRELY ON THE SEIZED ANNEXURE A-1 FOR WHICH THE LD. CIT (A) HAS GIVEN A C ATEGORICAL FINDING AS NOT BELONGING TO THE ASSESSEE, IN VIEW OF OUR ALLOWING THE CO OF THE ASSESSEE AND QUASHING THE ASS ESSMENT PROCEEDINGS FOR AY 2007-08 AND AY 2008-09, WE FIND N O REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT (A) AND 14 ITA NOS. 3951, 3952 & 3953/D/2012 & CO NOS. 138 & 139/D/2013 CONSEQUENTLY DISMISS THE DEPARTMENTS APPEAL FOR AY 2009-10 ALSO. 10. IN THE FINAL RESULT THE CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED AND ALL THE REVENUE APPEALS ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.06.2016 SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDICIAL MEMBER DATED: 30.06.2016 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI