M/s. N.K. Pipes Pvt. Ltd., New Delhi V. DCIT, New Delhi

CO 226/DEL/2014

• Counselvise Citation: [2016] 119 COUNSELVISE.COM (IT) 3216 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 05-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DEV JYOTI DAS
• Keywords: Search and seizure; Document seized; Assessment record; Documents seized
• Section: 153A; 148; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI J.S.REDDY, ACCOUNTANT MEMBER & SMT. BEENA PILLAI, JUDICIAL MEMBER I.T.A .NOS. 6222 TO 6227/DEL/2013 (ASSESSMENT YEARS-2003-04 TO 2008-09) DCIT, CENTRAL CIRCLE 21, NEW DELHI VS N. K. PIPES PVT. LTD., 602, D/8, ROSE APARTMENT, WARD NO.3, MEHRAULI, NEW DELHI PAN: AACCN5332M & CROSS OBJECTION NOS. 226 TO 231/DEL/2013 (ASSESSMENT YEARS-2003-04 TO 2008-09) N. K. PIPES PVT. LTD., 602, D/8, ROSE APARTMENT, WARD NO.3, MEHRAULI, NEW DELHI PAN: AACCN5332M VS DCIT, CENTRAL CIRCLE 21, NEW DELHI APPELLANT BY SH. DEV JYOTI DAS, CIT DR RESPONDENT BY SHRI KAPIL GOEL, ADV. ORDER PER BENCH. THESE ARE APPEALS FILED BY THE REVENUE AS WELL AS ASSESSEE, ARISING OUT OF THE ORDERS PASSED BY THE C IT(A)-II, NEW DELHI, VIDE ORDER DATED 19.09.2013, 20.09.2013 AND 23.09.2013, FOR ASSESSMENT YEARS 2003-04 TO 2004-05 , 2005- DATE OF HEARING 17.02.2016 DATE OF PRONOUNCEMENT 27.04.2016 2 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 06 TO 2007-08 AND 2008-09, RESPECTIVELY. THE ASSES SEE HAS FILED CROSS OBJECTIONS. 2. THE FACTS GIVING RISE TO INSTANT APPEALS AND C.O . ARE AS UNDER: A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE AC T WAS CARRIED OUT IN THE CASES OF SHRI B.K. DHINGRA, SMT. POONAM DHINGRA AND M/S MADHUSUDAN BUILDCON PVT. LTD., ON 20/10/2008 AT THEIR RESIDENTIAL PREMISES AT F-6/5, VASANT VIHAR, NEW DELHI. 2.1 IT IS ALLEGED THAT DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE RECOVERED FROM THE SEARCHED PREMISES. ACCORDINGLY, A NOTICE U/S 153C D ATED 01/10/2010 WAS ISSUED TO THE ASSESSEE BY ACIT, CC-1 7, NEW DELHI CALLING UPON THE ASSESSEE TO FILE THEIR RETUR N OF INCOME WITHIN 15 DAYS OF SERVICE OF THE NOTICE. THE ASSESS EE FILED RETURNS UNDER PROTEST AND THE CASE WAS SUBSEQUENTLY CENTRALIZED BY AN ORDER U/S 127 AND THE ASSESSEES JURISDICTION WAS TRANSFERRED TO CENTRAL CIRCLE 21 BY AN ORDER DT . 19/10/2010. THE ASSESSMENT IN RESPECT OF THE ASSES SEE WAS COMPLETED ON 31/12/2010 AND THE TOTAL INCOME WAS AS SESSED AT RS. 22,37,760/-. 3. AGGRIEVED BY THE ORDER OF THE LD. ASSESSING OFFI CER THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) APART FROM RAISING THE ISSUES ON MERITS THE ASSESSEE DISPUTED THE JURISDICTION OF THE LD. ASSESSING OFFI CER IN INITIATING THE PROCEEDINGS U/S 153C. ON THE GROUND THAT PROPER SATISFACTION WAS NOT RECORDED. 3 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 THE LD. CIT(A) DELETED THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER ON MERITS, HOWEVER, HE DISMISSED THE GROUND RAISED BY THE ASSESSEE RELATING TO THE VALIDITY OF PROCEEDING U/S.153C. 3.1 AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE RE VENUE FILED THIS APPEAL. THE ASSESSEE FILED THESE CROSS OBJECT IONS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE O RDERS PASSED BY THE AUTHORITIES BELOW. 4.1 THE REVENUE HAS PREFERRED APPEALS FOR THE YEARS UNDER CONSIDERATION AGAINST THE ENTIRE ADDITION BEING DEL ETED BY THE LD. CIT(A) ON MERITS AND THE CROSS OBJECTION FILED BY THE ASSESSEE RAISES A VERY FUNDAMENTAL ASPECT ABOUT ASS UMPTION OF JURISDICTION BY THE LD. ASSESSING OFFICER. WE C ONSIDER IT APPROPRIATE TO TAKE UP THE CROSS OBJECTIONS FILED B Y THE ASSESSEE FIRST. 5. THE LD. AR CONTENDS THAT THE ASSESSING OFFICER H AS ERRED UNDER LAW IN FRAMING THE ORDER U/S 153C READ WITH 1 43(3) WITHOUT FULFILLING THE CONDITIONS PRESCRIBED U/S 15 3C OF THE ACT. 5.1. THE LD. AR PLACED RELIANCE ON THE RTI APPLICAT ION FILED BY THE ASSESSEE AND THE REPLY ISSUED BY THE ASSESSING OFFICER IN RESPONSE TO THE RTI APPLICATION, WHICH HAS BEEN PLA CED AT PAGES 4 AND 6-8 OF THE PAPER BOOK. THE ASSESSING OF FICER HAS CATEGORICALLY MENTIONED IN HIS REPLIES DATED 10.06. 13 TO THE ABOVE REFERRED RTI APPLICATION THAT NO SATISFACTION NOTE IS AVAILABLE IN THE FILE OF THE SEARCHED PARTIES BEING , SHRI B.K. 4 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 DHINGRA, SMT. POONAM DHINGRA AND M/S MADHUSUDAN BUILDCON PVT. LTD. 5.2. THE LD. AR SUBMITTED THAT INITIATION OF THE PR OCEEDINGS U/S.153C AGAINST THE ASSESSEE WAS ILLEGAL, AS NO SA TISFACTION WAS RECORDED BY THE ASSESSING OFFICER OF THE SEARC HED PERSON DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SE ARCHED PERSONS, OR IMMEDIATELY THEREAFTER, WHICH IS A MAND ATORY CONDITION TO BE FULFILLED, PRIOR TO INITIATION OF A SSESSMENT PROCEEDINGS U/S 153C AGAINST THE ASSESSEE. HENC E, HE ARGUED THAT THE ASSUMPTION OF JURISDICTION U/S 153C IS BAD IN LAW. 6. ON THE OTHER HAND, THE LD. D.R. ARGUED THAT; (A ) THE LD. ASSESSING OFFICER FOR BOTH THE SEARCHED PERSONS AS WELL AS THE ASSESSEE IS THE SAME AND (B) THAT SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS OF THE SEARCHED PERSON AND IT WE ONLY F OR CONVENIENCE THAT THE SATISFACTION NOTE WAS PLACED I N THE FILE OF THE ASSESSEE AND THIS FACT WAS RECORDED IN THE SATI SFACTION NOTE ITSELF AND THAT NOTHING TURNS ON THE REPLY GIVEN BY THE ASSESSING OFFICER, TO A QUERY UNDER RTI. HENCE, HE SUBMITTED THAT VARIOUS DECISIONS CITED BY ASSESSEE DO NOT COV ER THE ISSUE IN HAND, AND THAT IT WAS NOT BROUGHT TO THE NOTICE OF THE BENCHES THAT TAKING THE SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON WAS PLACED IN THE FILE OF THE ASSESSEE, BY DECLARING SO IN THE SATISFACTIO N NOTE ITSELF. THIS SHOULD BE VIEWED AS FULFILLMENT OF THE LEGAL R EQUIREMENTS OF RECORDING OF SATISFACTION. ON A QUERY FROM THE BENCH, THE LD. D.R. SUBMITTED THAT RECORDING OF NAMES OF THREE ASSESSEES 5 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 WHO WERE SEARCHED IN THE SATISFACTION NOTE, CANNOT LEAD TO AN INFERENCE THAT SATISFACTION WAS NOT RECORDED DURING THE ASSESSMENT IN THE CASE OF A PARTICULAR SEARCHED PER SON. THE LD. A.R. SUBMITTED THAT THE ASSESSING OFFICER CANNO T RECORD A GENERAL SATISFACTION BY MENTIONING THE NAMES OF ALL THE SEARCHED PARTIES AND THAT SUCH RECORDING IS BAD IN LAW AS HELD BY ITAT IN THE CASE OF DSL PROPERTIES PVT. LTD. VS DCIT REPORTED IN 60 SOT 89. 7. LET US EXAMINE THE FACTS OF THE INSTANT CASE. T HE REVENUE RELIED ON THE SATISFACTION NOTE, A COPY OF WHICH HA S BEEN PLACED AT PAGES 5 OF THE PAPER BOOK. WE EXTRACT THE SAME FOR READY REFERENCE: - SATISFACTION NOTE FOR ISSUING NOTICE/S.153C OF THE INCOME TAX ACT, 1961 IN THE CASE OF M/S. N.K.PIPES PVT.LTD ., 113, 1 ST FLOOR, VASANT VILLAGE, VASANT VIHAR, NEW DELHI, PA N: ______________ FOR A.Y. 2003-04 TO 2008-09. 30.09.2010. :IN THE CASE OF SH. B. K. DHINGRA, SMT. POONAM DHINGRA AND M/S. MADHUSUDAN BUILDCON PVT.LTD., SEARCH AND 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 PAGE 20 OF ANNEXURE A- 3 AND ANNEXURES A-42 AND A-43 SEIZED BY PARTY R-2, ARE FOUND TO BELONG TO M/S. N.K.PIPES PVT.LTD 113, 1 ST FLOOR, VASANT VILLAGE, VASANT VIHAR, NEW DELHI. I HAVE EXAMINED THE ABOVE MENTIONED DOCUMENTS/PAPERS AND PROVISIONS OF SECTION 153CS INVOKABLE IN THIS CASE. AS THE UNDERSIGNED IS ALSO THE JURISDICTIONAL AO OF M/S. N.K.PIPES PVT.LTD 113, 1 ST FLOOR, VASANT VILLAGE, VASANT VIHAR, NEW DELHI, THIS SATISFACTION NOTE IS PLACED IN THE FILE BEFORE ISSUING NOTICE U/S. 153C. 6 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 ACI T, CENTRAL CIRCLE-17, NEW DELHI 8. IT WOULD BE APPROPRIATE TO EXTRACT THE RELEVANT PART OF SECTION 153 (1), AS STOOD AT THE MATERIAL TIME:- 153C: ASSESSMENT OF INCOME OF ANY OTHER PERSON:- (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 39, SECTION 147, SECTION 149, SECTION 151 AND SECTION 1 53 WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NGS OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONGS ALL BELONG TO A PERSON OTHER THAN THE PERSO N REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCO UNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL B E HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDI CTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER S HALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SU CH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME O F SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF S ECTION 153A. 9. FROM THE ABOVE PROVISION, IT IS CLEAR THAT, WHE RE AN AO OF THE PERSON SEARCHED IS SATISFIED THAT ANY MONEY, BU LLION, JEWELLERY, BOOKS OF ACCOUNTS OR OTHER DOCUMENTS SEI ZED OR REQUISITIONED, BELONG TO A PERSON OTHER THAN THE PE RSON SEARCHED, THEN, SUCH DOCUMENTS OR ASSETS, ETC., SHA LL BE AFTER HIS RECORDING OF SATISFACTION, HANDED OVER TO THE A O OF THE OTHER PERSON AND THE LATER AO SHALL PROCEED AGAIN ST SUCH OTHER PERSON TO ASSESS OR REASSESS HIS INCOME. ONLY WHEN SUCH A SATISFACTION IS RECORDED BY THE A O OF THE PERSON SEARCHED AND THE MONEY, BULLION, JEWELLERY, BOOKS OF ACCOUNT OR OTHER DOCUMENTS BELONGING TO SUCH OTHER PERSON ARE HANDED OVER TO THE AO OF THE OTHER PERSON, TH AT THE LATER AO ACQUIRES JURISDICTION TO MAKE ASSESSMENT OR REAS SESSMENT OF THE OTHER PERSON. THUS THE RECORDING OF SATISF ACTION BY THE 7 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 AO OF THE PERSON SEARCHED IS A CONDITION PRECEDED A ND FOR THE AO OF THE OTHER PERSON TO ACQUIRE JURISDICTION U/ S. 153C OF THE ACT. 10. THE AFORESAID PROVISION IS CONTAINED IN CHAPTE R XIV OF THE INCOME TAX ACT, WHICH CONTAINS THE PROCEDURE FO R ASSESSMENT. A SIMILAR PROVISION EXISTS IN SECTION 1 58BD UNDER CHAPTER XIV-B. THE MEANING AND SCOPE OF SECTION 158 BD CAME UP FOR CONSIDERATION BEFORE HONBLE SUPREME COURT I N THE CASE OF CIT VS. M/S. CALCUTTA KNITWEARS, REPORTED IN (20 14) 362 ITR 637. HONBLE SUPREME COURT HAS OBSERVED AND HELD AS UNDER; 41. WE WOULD CERTAINLY SAY THAT BEFORE INITIATING PROCEEDINGS UNDER SECTION 158 BD OF THE ACT, THE AS SESSING OFFICER WHO HAS INITIATED PROCEEDINGS FOR COMPLETIO N OF THE ASSESSMENTS UNDER SECTION 158 BC OF THE ACT WOULD B E SATISFIED THAT THERE IS AN UNDISCLOSED INCOME WHICH HAS BEEN TRACED OUT WHEN A PERSON WAS SEARCHED UNDER SECTION 132 OR THE BOOKS OF ACCOUNTS OVER REQUISITI ONED UNDER SECTION 132 A OF THE ACT. THIS IS IN CONTRAST TO THE PROVISIONS OF SECTION 148 OF THE ACT WHERE RECORDIN G OF REASONS IN WRITING OUR SINE QUA NON. UNDER SECTION 158 BD THE EXISTENCE OF COGENT AND DEMONSTRATIVE MATERIAL IS GERMANE TO THE ASSESSING OFFICERS SATISFACTION IN CONCLUDING THAT THE SEIZED DOCUMENTS BELONG TO A PE RSON OTHER THAN THE SEARCHED PERSON IS NECESSARY FOR INI TIATION OF ACTION UNDER SECTION 158 BD. THE BEAR READING OF THE PROVISION INDICATES THAT THE SATISFACTION NOTE COUL D BE PREPARED BY THE ASSESSING OFFICER EITHER AT THE TIM E OF INITIATING PROCEEDINGS FOR COMPLETION OF THE ASSESS MENT OF A SEARCHED PERSON UNDER SECTION 158 BC OF THE ACT OR DURING THE STAGE OF THE ASSESSMENT PROCEEDINGS. IT DOES NO T MEAN THAT AFTER COMPLETION OF THE ASSESSMENT, THE ASSESS ING OFFICER CANNOT PREPARE THE SATISFACTION NOTE TO THE EFFECT THAT THERE EXIST INCOME TAX BELONGING TO ANY PERSON OTHER THAN THE SEARCHED PERSON IN RESPECT OF WHOM SEARCH WAS MADE UNDER SECTION 132 OR REQUISITIONED OF THE BOOK S OF 8 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 ACCOUNTS WERE MADE UNDER SECTION 132 A OF THE ACT. THE LANGUAGE OF THE PROVISION IS CLEAR AND UNAMBIGUOUS. THE LEGISLATURE HAS NOT IMPOSED ANY EMBARGO ON THE ASSE SSING OFFICER IN RESPECT OF THE STAGE OF PROCEEDINGS DURI NG WHICH THE SATISFACTION IS TO BE REACHED AND RECORDED IN R ESPECT OF THE PERSON OTHER THAN THE SEARCHED PERSON. 44. IN THE RESULT, WE HOLD THAT FOR THE PURPOSE OF SECTION 158 BD OF THE ACT SATISFACTION NOTE IS SINE QUA NON AND MUST BE PREPARED BY THE ASSESSING OFFICER BEFORE HE TRANSMITS THE RECORDS TO THE OTHER ASSESSING OFFICE R WHO HAS JURISDICTION OVER SUCH OTHER PERSON. THE SATISF ACTION NOTE COULD BE PREPARED AT EITHER OF THE FOLLOWING S TAGES: (A) AT THE TIME OFF OR ALONG WITH THE INITIATION OF PRO CEEDINGS AGAINST THE SEARCHED PERSON UNDER SECTION 158 BC OF THE ACT; (B) ALONG WITH THE ASSESSMENT PROCEEDINGS UNDE R SECTION 158 BC OF THE ACT; (C) IMMEDIATELY AFTER TH E ASSESSMENT PROCEEDINGS ARE COMPLETED UNDER SECTION 158 BC OF THE ACT OF THE SEARCHED PERSON. 10.1 REFERENCE TO THE ASSESSMENT PROCEEDINGS U/S.15 8BC BY THE HONBLE SUPREME COURT IN THE ABOVE QUOTED PARA S ARE IN RESPECT OF THE ASSESSMENT PROCEEDINGS IN RELATION T O THE SEARCHED PERSON AND NOT THE OTHER PERSON, AS RE FERRED TO IN SECTION 158BD. 10.2. IT CAN BE SEEN FROM THE PAPER BOOK FILED BEF ORE US THAT NOTICE UNDER SECTION 153C WAS ISSUED TO THE ASSESSE E BY A ACIT CENTRAL CIRCLE 17, NEW DELHI ON 30 TH OF NOVEMBER 2010, ON THE SAME DATE ON WHICH THE ALLEGED SATISFACTION WAS REC ORDED. IT IS APPARENT FROM A PLAIN READING OF THE SATISFACTION N OTE THAT IT REFERS TO THE SEARCH AND SEIZURE IN THE CASE OF SH. B.K.DHINGRA, SMT. POONAM DHINGRA AND M/S. MADHUSUDAN BUILDCON PV T. LTD. IT IS FURTHER NOTICED THAT THE SATISFACTION NOTE IS RECORDED AND IS PLACED IN THE FILE OF THE ASSESSEE BEFORE ISSUING N OTICE UNDER 9 I.T.A.NOS.6222 TO 6227/D EL/2013 C.O. NOS. 226 TO 231/DEL/2013 SECTION 153C OF THE ACT. THE CONTENT OF THE ABOVE S ATISFACTION SUGGEST THAT IT WAS RECORDED BY THE ASSESSING OFFIC ER OF THE ASSESSEE BEFORE TAKING UP THE ASSESSMENT UNDER SECT ION 153C OF THE ACT, PURSUANT TO THE SEARCH CONDUCTED ON SH.B.K DHINGRA SMT. POONAM DHINGRA AND M/S. MADHUSUDAN BUILDCON PV T. LTD. IN THESE THREE CASE, WHICH IS THE SEARCH OR ASSESSM ENT PROCEEDINGS BEING REFERRED TO , IS NOT CLEAR. AT PA GES 6 TO 8 OF THE PAPER BOOK ARE THE COPIES OF THE REPLY FURNISHED BY DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 17, NEW D ELHI TO SH.B.K DHINGRA, SMT. POONAM DHINGRA AND M/S. MADHUS UDAN BUILDCON PVT. LTD., UNDER THE PROVISIONS OF RTI ACT , 2005. THE RELEVANT PARA OF THE REPLY DATED 10.06.2013 GIVEN T O SH.B.K DHINGRA SMT. POONAM DHINGRA AND M/S. MADHUSUDAN BUI LDCON PVT. LTD., IS AS UNDER:- 2. FROM THE ASSESSMENT RECORDS OF SH. BHUPESH KUM AAR DHINGRA, WHICH IS COVERED UNDER SECTION 153A FOR AS SESSMENT YEARS 2003 04 TO 2008-09 (BLOCK PERIOD) IT IS NOTIC ED THAT THERE IS NO SATISFACTION NOTE AVAILABLE/RECORDED IN RESPECT OF OTHER ENTITIES. 2. FROM THE ASSESSMENT RECORDS OF SMT. POONAM DHI NGRA, WHICH IS COVERED UNDER SECTION 153A FOR ASSESSMENT YEARS 2003 04 TO 2008-09 (BLOCK PERIOD) IT IS NOTICED THA T THERE IS NO SATISFACTION NOTE AVAILABLE/RECORDED IN RESPECT OF OTHER ENTITIES. 2. FROM THE ASSESSMENT RECORDS OF M/S. MADHUSUDAN BUILDCON PVT. LTD , WHICH IS COVERED UNDER SECTION 153A FOR ASSESSMENT YEARS 2003 04 TO 2008-09 (BLOCK PERIOD) IT IS NOTICED THAT THERE IS NO SATISFACTION NOTE AVAILABL E/RECORDED IN RESPECT OF OTHER ENTITIES. 10.3. ON CONSIDERATION OF THE ABOVE REPLIES GIVEN BY THE DEPARTMENT TO THE PERSONS SEARCHED, IT IS CLEAR THA T THERE IS NO SATISFACTION NOTE AVAILABLE/RECORDED IN RESPECT OF THE SEARCHED 10 I.T.A.NOS.6222 TO 6227/ DEL/2013 C.O. NOS. 226 TO 231/DEL/2013 PERSONS. ON A JOINT READING OF THE SATISFACTION NOT E AND REPLIES GIVEN BY THE DEPARTMENT TO THE SEARCHED PERSONS UND ER THE RTI ACT, IT CLEARLY EMERGES THAT NO SATISFACTION HAS BE EN RECORDED BY THE ASSESSING OFFICER IN CASE OF THE PERSONS SEARCH ED UNDER SECTION 132 (1) OF THE ACT (I.E., SH.B.K DHINGRA SM T. POONAM DHINGRA AND M/S. MADHUSUDAN BUILDCON PVT. LTD. 10.4. THE SATISFACTION NOTE, DOES NOT INDICATE AS TO IN WHOSE CASE OR ASSESSMENT PROCEEDING THE SATISFACTION WAS RECOR DED. IN THE SATISFACTION NOTE THE ASSESSING OFFICER HAS MENTION ED THE NAME OF VARIOUS ASSESSES, WHO HAVE BEEN COVERED IN THE SEAR CH AND SEIZURE ACTION U/S 132(1). THE ASSESSING OFFICER H AS FAILED TO MENTION, DURING WHICH SPECIFIC SEARCH AND SEIZURE P ROCEEDINGS AND ON WHOSE PREMISES, WAS THE SEIZED MATERIALS FOU ND. THE ASSESSING OFFICER OF THE PERSON SEARCHED AND OTH ER PERSON MAY BE THE SAME, BUT THESE ARE TWO DIFFERENT ASSESSES. THE ASSESSING OFFICER SHOULD BE SPECIFIC. 10.5. THE LD.AR HAS PLACED RELIANCE ON THE DECISIO N OF THIS TRIBUNAL IN THE CASE OF DSL PROPERTIES P. LTD VS. D CIT(SUPRA). THE LD.AR HAS ALSO PLACED THIS RELIANCE ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF TANVIR COLLECTIONS (.) LTD., VS. ACI T REPORTED IN (2015) 54 TAXMANN.COM 379. 10.6. THE FACTS OF TANVIR COLLECTIONS (SUPRA) ARE IDENTICAL AND SIMILARLY PLACED AS THAT OF THE ASSESSEE BEFORE US. THE COORDINATE BENCH HAS OBSERVED AND OPINED AS UNDER:- 11 I.T.A.NOS.6222 TO 6227/ DEL/2013 C.O. NOS. 226 TO 231/DEL/2013 16. IN OUR CONSIDERED OPINION, THIS CONTENTION AD VANCED ON BEHALF OF THE REVENUE IS DEVOID OF MERIT. WE FAIL T O COMPREHEND AS TO HOW THE REQUIREMENT OF RECORDING SATISFACTION BY THE AO OF THE PERSON SEARCHED PROVI DED BY THE STATUTE CAN BE SUBSTITUTED WITH ANYTHING ELSE. THER E IS AN UNDERLYING RATIONALE IN PROVIDING FOR RECORDING OF SUCH SATISFACTION BY THE AO OF THE PERSON SEARCHED. AS T HE MONEY, BOOLEAN, JEWELLERY, BOOKS OF ACCOUNT OR DOCUMENTS E TC ALWAYS COME TO THE POSSESSION OF THE AO OF THE PERSON SEAR CHED WHO HAS TO FRAME ASSESSMENT, IT IS ONLY HE WHO CAN FIND OUT THAT BIT OF SUCH DOCUMENTS ETC DO NOT BELONG TO THE PERS ON SEARCHED AND ARE RELEVANT FOR THE ASSESSMENT OF THE OTHER PERSON. IT IS NOT AS IF ALL THE BOOKS OF ACCOUNT AN D THE DOCUMENTS ETC FOUND DURING THE COURSE OF A SEARCH A RE EVALUATED BY A SEPARATE AUTHORITY TO FIGURE OUT THA T WHICH OF THESE DOCUMENTS BELONG TO THE PERSON SEARCHED AND T O THE OTHERS AND THUS HANDED OVER THE CONCERNED AOS OF T HE PERSON SEARCHED AND OFFERS FOR MAKING ASSESSMENT. A S IT IS ONLY THE AO OF THE PERSON SEARCHED WHO CAN REACH A CONCLUSION THAT SOME OF THE DOCUMENTS ETC DO NOT BE LONG TO THE PERSON SEARCHED BUT TO SOME OTHER PERSON, THE L EGISLATURE HAS PROVIDED FOR RECORDING OF SUCH SATISFACTION BY THE AO OF THE PERSON SEARCHED. IT IS NOT PERMISSIBLE UNDER TH E LAW TO REQUIRE THE AO OF THE OTHER PERSON TO RECORD SUCH S ATISFACTION BY THE AO. 17. AS REGARDS THE OTHER ARGUMENT OF THE LD.DR THAT SINCE THE AO OF BOTH THE PERSONS SEARCHED AND THE ASSESSEE IS THE SAME HENCE REQUIREMENT OF RECORDING SATISFACTION BY THE AO OF THE PERSONS SEARCHED SHOULD BE DEEMED TO HAVE BE EN FULFILLED WITH THE RECORDING OF SATISFACTION BY THE AO OF THE ASSESSEE. WE ARE AGAIN UNABLE TO APPRECIATE THIS CO NTENTION THAT THE COMMONNESS OF THE AO WOULD MAKE NO DIFFERE NCE INSOFAR AS THE RECORDING OF SATISFACTION IN THE CAS E OF THE PERSONS SEARCHED IS CONCERNED. WHAT IS RELEVANT FOR THIS PURPOSE IS NOT THE IDENTITY OF THE PERSON ACCESSING BUT HIS POSITION AND THE CAPACITY. WHEN THE LAW REQUIRES TH E AO OF THE PERSON SEARCHED TO RECORD THE NECESSARY SATISFA CTION, IT IS THE AO HAVING JURISDICTION OVER THE PERSONS SEARCHE D WHO IS OBLIGED TO RECORD SUCH SATISFACTION IN THE CAPACITY OF THAT AO AND THAT TOO IN THE CASE OF THE PERSON SEARCHED. TH E MERE FACT THAT THE AO OF THE PERSONS SEARCHED AND THE ASSESSE E IS THE 12 I.T.A.NOS.6222 TO 6227/ DEL/2013 C.O. NOS. 226 TO 231/DEL/2013 SAME PERSON, DOES NOT, IN ANY MANNER, OBLATE RATE T HE REQUIREMENT OF LAW NECESSITATING THE RECORDING OF S ATISFACTION IN THE CASE OF THE PERSON SEARCHED THAT MONEY, BOOL EAN, JEWELLERY, ETC., FOUND FROM THE PERSONS SEARCHED BE LONGS TO THE OTHER PERSON. WHAT IS CRUCIAL TO NOTE IS THE CAPACITY OF THE 80 AND NOT HIS IDENTITY. IN VIEW OF THE FACT TH AT WHEN THE STATUTORY STIPULATION IS FOR RECORDING THE SATISFAC TION BY THE EU OF THE PERSONS SEARCHED, THEN, IT CANNOT BE SUBS TITUTED WITH THE SATISFACTION OF THE AO OF THE OTHER PERSO N. THIS CONTENTION ALSO FAILS. 21. WE AGREE IN PRINCIPLE THAT TECHNICALITIES CANNO T COME IN THE WAY OF DISPENSATION OF JUSTICE. HOWEVER, IT IS IMPORTANT TO NOTE THAT THE LACK OF JURISDICTION BY THE AO CANNOT BE PUT UNDER THE CARPET IN THE GUISE OF A TECHNICAL DEFECT . IT GOES WITHOUT SAYING THAT NO ASSESSMENT OR OTHER PROCEEDI NGS CAN BE LAWFULLY TAKEN UP AND COMPLETED UNLESS THE CONCE RNED AT HAS JURISDICTION SHOULD TO DO SO. LACK OF JURISDICT ION GOES TO THE VERY ROOT OF THE MATTER AND CUTS THE TREE OF AS SESSMENT IF THE FOUNDATION OF JURISDICTION IS MISSING. 11. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS THE AO OF SH.B.K DHINGRA, SMT. POONAM DHINGRA AND M/S. MADHUSUDAN BUILDCON PVT. LTD., DID NOT RECORD SATIS FACTION DURING THE COURSE OF THEIR ASSESSMENT OR IMMEDIATEL Y THEREAFTER, THAT SOME MONEY, BULLION, JEWELLERY OR BOOKS OF ACC OUNT OR OTHER DOCUMENTS FOUND FROM THESE PERSONS BELONGED TO THE ASSESSEE, IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER DOES NOT HAVE A VALID AND LAWFUL JURISDICTION TO PROCEED WITH THE I MPUGNED ASSESSMENT UNDER SECTION 153C OF THE ACT. RESPECTFU LLY FOLLOWING THE PREPOSITIONS OF LAW LAID DOWN IN THE JUDGMENTS OF THE HONBLE SUPREME COURT AND THE COORDINATE BENCH OF TRIBUNAL, WE QUASH THE INITIATION OF THE ASSESSMENT UNDER SECTION 153C OF THE ACT, IN THE CASE OF THE ASSESSEE AS VOID AB INITIO . 13 I.T.A.NOS.6222 TO 6227/ DEL/2013 C.O. NOS. 226 TO 231/DEL/2013 11.1. IN THE VIEW OF THE ABOVE DISCUSSION, THE CRO SS OBJECTIONS FILED BY THE ASSESSEE ARE ALLOWED IN TERMS OF THE L EGAL ISSUE RAISED BY THE ASSESSEE AND THE APPEALS FILED BY THE REVENU E STAND DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 27.04. 2016. SD./- SD./- (J.S.REDDY) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH APRIL, 2016 *KAVITA, P.S./SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 14 I.T.A.NOS.6222 TO 6227/ DEL/2013 C.O. NOS. 226 TO 231/DEL/2013 DATE 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHOR 27/4 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.