Tahir Isani, V. ACIT, Circle - 2(1), Panaji

CO 6/PAN/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8796 (ITAT-PANAJI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 08-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI
• Assessee Lawyers: SHRINIVAS NAYAK
• Keywords: Unexplained investment; Loose papers; Document seized; Documents seized
• Section: 143(3); 133A; 153A; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 92 /PNJ/201 2 : (ASST. YEAR : 2004 - 05) ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 2(1), PANAJI, GOA. (APPELLANT) VS. MR. TAHIR ISANI MANEK HOUSE, ALTINHO, MAPUSA - GOA PAN AAEPI5579C (RESPONDENT) CO NO. 6/PNJ/2013 (IN ITA NO. 92 /PNJ/201 2) : (ASST. YEAR : 2004 - 05) MR. TAHIR ISANI MANEK HOUSE, ALTINHO, MAPUSA - GOA PAN AAEPI5579C (CROSS OBJECTOR) VS. ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 2(1), PANAJI, GOA. (RESPONDENT) REVENUE BY : SMT. ASHA DESAI, D.R ASSESSEE BY : SHRINIVAS NAYAK, CA DATE OF HEARING : 15/04/2013 DATE OF PRONOUNCEMENT : 28 / 06 /2013 O R D E R PER D.T. GARASIA : 1. THE ABOVE APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) DT. 31.8.2012 FOR A.Y. 2004 - 05 BY TAKING THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 1) WHETHER THE LD CIT(A) WAS RIGHT IN HOLDING THAT THE CONDITIONS TO ISSUE NOTICE U/S. 153C ARE NOT SATISFIED AND HENCE THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING PROCEEDINGS U/S. 153C OF THE I. T. ACT. AS THE AO HAS RECORDED REASONS BEFORE ISSUE O F NOTICE U/S. 153C OF THE I. T. ACT. 2 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) 2) THE LD CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE AO HAS PROPER JURISDICTION OVER THE ASSESSEE TO ASSESS / RE - ACCESS THE INCOME U/S. 153A R.W.S. 153C OF THE I. T. ACT. 3) THE LD CIT(A) FAILED TO APPRECIATE THE F ACT THAT THE ASSESSEE HAS NOT RAISED ANY OBJECTION REGARDING ISSUE OF NOTICE U/S. 153C DURING THE ASSESSMENT PROCEEDINGS AND THIS FACTS FALLS WITHIN THE PURVIEW OF SECTION 292BB OF I. T. ACT 1961. 4) WHETHER THE CIT(A) WAS RIGHT IN ALLOWING ADDITION OF RS. 91,91,000/ - MADE BY AO O N ACCOUNT OF UNEXPLAINED INVESTMENT. 2. THE ASSESSEE HAS MOVED THE CROSS OBJECTION WHEREIN THE ASSESSEE HAS TAKEN THE GROUND THAT THE PROCEEDINGS U/S 153C HAS BEEN ILLEGALLY INITIATED ON THE BASIS OF DOCUMENTS NOT FOUND OR SEIZED DURING THE COURSE OF SEARCH. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER : 3.1 THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM REMUNERATION, HOUSE PROPERTY, CAPITAL GAINS AND OTHER SOURCES. NOTICE WAS ISSUED TO THE ASSESSEE BASED ON SURVEY CARRIED OUT U/S 133A IN THE CASE OF SHRI SADIQ SHAIKH STATING THAT THE AGREEMENT FOR PURCHASE OF RIGHTS OVER FOUR FLATS ENTERED INTO WITH TAHIR ISANI WAS FOUND AND IMPOUNDED. IN FACT, ALL THESE AGREEMENTS WERE IMPOUNDED DURING THE COURSE OF SURVEY CARRIED OUT IN THE CASE OF SHRI SADIQ SHAIKH. THE ASSESSMENT ORDER WAS PASSED BY INVOKING SEC. 153C R/W SEC. 143(3) OF THE INCOME TAX ACT. THE AO MADE ADDITION OF RS.91,91,000/ - AS UNEXPLAINED INVESTMENT U/S 69 ON THE BASIS OF THE COPIES OF AGREEMENT FOUND FOR PURCHASE OF FOUR FLATS BY TAHIR ISANI FROM SADIQ SHAIKH. THE ASSESSEE HAS ENTERED INTO AGREEMENT WITH SADIQ SHAIKH BUT HE HAS NOT PAID ANY AMOUNT TO SADIQ SHAIKH AS THESE FLATS WERE ALLOTTED TO HIM TOWARDS THE COMMISSIN DUE ON SETTLEMENT OF DISPUTE IN REGARDS TO LAND OF SADIQ SHAIKH. OUT OF THE FOUR FLATS, ONLY TWO WERE HANDED OVER TO THE ASSESSEE IN 2009 - 10 WHICH WAS OFFERED TO TAX BY THE ASSESSEE IN A.Y. 2010 - 11. THE AO WAS NOT ENTRUSTED WITH THE JURISDICTION TO ISSUE NOTICE U/S 153C ON THE BASIS OF AGREEMENT ENTE RED INTO BY THE ASSESSEE 3 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) WITH SADIQ SHAIKH. THESE AGREEMENTS WERE NOT FOUND AND SEIZED DURING THE COURSE OF SEARCH BUT WERE IMPOUNDED DURING THE COURSE OF SURVEY. 3.2 THE ASSESSEE AGGRIEVED BY THIS ORDER WENT IN APPEAL BEFORE CIT(A) AND CIT(A) HAS DELETED THE ADDITION BY OBSERVING AS UNDER : IN THE LIGHT OF THE ABOVE, THE TWO BASIC ISSUES TO BE DECIDED IS (1) WHETHER ORDER OF ASSESSMENT PASSED U/S 143(3) RWS 153C OF THE ACT IS BAD IN LAW AND VOID - AB - INITIO IN AS MUCH THERE WAS NO JUSTIFICATION TO ISSUE THE NOTICE U/S 153C OF THE ACT AND THEREFORE THE ORDER OF ASSESSMENT PASSED IS OPPOSED TO LAW. IN LIGHT OF THE ABOVE, THE DOCUMENTS THAT HAVE BEEN IMPOUNDED HAS TO BE ANALYSED. FROM THE FACTS DISCUSSED ABOVE, THE AGREEMENTS IMPOUNDED AS MENTION ED IN THE ASSESSMENT ORDER ARE THE AGREEMENTS FOR ASSIGNMENT OF RIGHTS OF 4 FLATS BETWEEN MR SAIDQ SHI EKH AND THE APPELLANT. THERE ARE TWO PARTIES TO THE AGR EEMEN TS I E, MR SADIQ SHEKH AND THE APPELLANT . AS PER THE AGREEMENT MR . SADIQ SHEKH HAD AGREED TO ASSIGN THE RIGHTS OVER 4 FLATS WHICH J - 302, J - 402, J - 401, J - 203 IN PROJECT CASTLE ROCK TOTALLY ADMISSIARY 608 SQ. MTR. AS PER THE AGREEMENT 2 PARTIES HAVE ACCEPTED THE TERMS AND CONDITIONS OF THE AGREEMENT. THUS, THE AGREEMENT FOUND FROM SRI. SAIDQ SHEKH ARE BELONGS TO MR. SADIQ SHEKH AND NOT THE APPELLANT. IF THE RATIONALE OF ASSESSING OFFICER IS ACCEPTED THEN IN CASE WHEREVER A SEARCH IS CONDUCTED AT THE PREMISES OF BUILDER OR A CONTRACTOR THERE WILL BE A AGREEMENT OF CONTRACT AND SUB CONTRACT WITH THOUSANDS OF CONTRACTORS AND SUB CONTRACTORS AND PURCHASES OF FLATS ETC., IN ALL TH E CASES THE PROCEEDINGS U/S. 153C HAS TO BE INITIATED WHICH IS NOT THE INTENTION OF THE LEGISLATURE TO INTRODUCE SECTION 153C OF THE IT ACT. THE BASIC PURPOSE OF INTRODUCING SECTION 153C WAS TO INITIATE PROCEEDINGS IN THE CASE OF THE PERSONS WHO KEPT BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS BELONGING TO THEM AT THE PREMISES OF OTHER PERSONS REPRESENTING THE UNACCOUNTED TRANSACTION AND UNEXPLAINED INVESTMENTS SO THAT SUCH UNACCOUNTED TRANSACTION OR UNEXPLAINED INVESTMENTS CANNOT BE DETECTED, IF THE SEARCH OR SURVEY ARE CARRIED OUT AT THE PREMISES OF SUCH PERSON. THUS, EVEN THOUGH APPELLANT IS THE PARTY TO THE AGREEMENTS BUT THE SAME CANNOT BE SAID TO BE BELONGING TO THE APPELLANT AND THE DOCUMENTS WHERE THE PROPERTY BELONGS TO MR. SAIDQ SHEKH AND THE SAME WAY IN RIGHTFUL POSSESSION OF MR. SADIQ SHEKH. THEREFORE, THE DOCUMENTS BELONGS TO MR. SADIQ SHEKH THIS RATIONAL HAS BEEN UPHELD B Y HONBLE SUPREME COURT OF INDIA IN THE CASE 4 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) OF COMMISSIONER OF WEALTH TAX VS VISHWANATH CHATTERJI AND OTHERS (103 ITR 536) WHEREIN IT HAS BEEN OBSERVED THAT THE EXPRESSION BELONG HAS BEEN DEFINED AS FOLLOWS IN OXFORD ENGLISH DICTIONARY : - TO BE THE PRO PERTY OR RIGHTFUL POSSESSION OF SO IT IS THE PROPERTY OF PERSON, OR THAT WHICH IS IN HIS POSSESSION AS OF RIGHT. THE VALID PROCEEDINGS U/S. 153C OF IT ACT CAN ONLY BE INITIATED WHEN THE BOOKS OF ACCOUNTS OR DOCUMENTS ARE SEIZED FROM THE PREMISES OF THE P ERSON SEARCH AND THOSE DOCUMENTS HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THE OTHER PERSON. IN THIS CASE, IT IS EVIDENT THAT NO DOCUMENTS BELONGING TO THE APPELLANT WHERE SEIZED FROM THE PREMISES OF MR. SADIQ SHEKH, THEREFORE INVOKING THE PROVISIONS OF SECTION 153C OF IT ACT WAS NOT JUSTIFIED. (I) THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF VIJAYBHAI N. CHANDRANI V. ACIT REPORTED IN 231 CTR 474 HELD THAT THUS A CONDITION PRECEDENT FOR ISSUING NOTICE UNDER S. 153C AND ASSESSING OR REASSESSING INCOME OF SUCH OTHER PERSON, IS THAT THE MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED SHOULD BELONG TO SUCH PERSON. IF THE SAID REQUIREMENT IS NOT SATISFIED, RESORT CANNOT BE HAD TO THE PROVISIONS OF SECTION 153C. THE DOCUMENTS IN QUESTION, NAMEL Y THE THREE LOOSE PAPERS RECOVERED DURING THE SEARCH PROCEEDINGS DO NOT BELONG TO THE PETITIONER. IT MAY BE THAT THERE IS A REFERENCE TO THE PETITIONER IN AS MUCH AS HIS NAME IS REFLECTED IN THE LIST UNDER THE HEADING SAMUKTKARSH MEMBERS DETAILS AND CERT AIN DETAILS ARE GIVEN UNDER DIFFERENT COLUMNS AGAINST THE NAME OF THE PETITIONER ALONGWITH OTHER MEMBERS, HOWEVER, IT IS NOBODYS CASE THAT THE SAID DOCUMENTS BELONG TO THE PETITIONER. IT IS NOT EVEN THE CASE OF REVENUE THAT THE SAID THREE DOCUMENTS ARE I N THE HANDWRITING OF THE PETITIONER. IN THE CIRCUMSTANCES, WHEN THE CONDITION PRECEDENT FOR ISSUANCE OF NOTICE IS NOT FULFILLED, ANY ACTION TAKEN U/S. 153C STANDS VITIATED. FOR THE FOREGOING REASONS, THE PETITION SUCCEEDS AND IS ACCORDINGLY ALLOWED. (II) THE HONBLE ITAT, BANGALORE BENCH, BANGALORE IN THE CASE OF P. SRINIVASA NAYAK REPORTED IN 117 ITD 201, IN PARAGRAPH 7 OF THE ORDER OBSERVED THAT IT WAS AN UNDISPUTED FACT THAT BOOKS OF ACCOUNT OR DOCUMENTS DID NOT BELONG TO THE ASSESSEE, AS THESE WERE S EIZED FROM THE PREMISES OF R. IT WAS NO WHERE STATED THAT THOSE BOOK OF ACCOUNT OR DOCUMENTS SHOWED THAT ALL THE TRANSACTIONS BELONGED TO THE ASSESSEE. SUCH BOOKS OF ACCOUNT OR DOCUMENTS CONTAINED THE TRANSACTIONS RELATING TO THE GROUP CONCERNS OF R. NO VALUABLE BELONGING TO THE ASSESSEE HAD BEEN SEIZED DURING THE COURSE OF SEARCH. THE TERM BELONGING IMPLIES SOMETHING MORE THAN THE IDEA OF A CASUAL ASSOCIATION. IT INVOLVES THE NOTION OF CONTINUITY AND INDICATES ONE MORE OR LESS INTIMATE CONNECTION W ITH THE PERSON OVER A PERIOD OF TIME. THE BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DURING THE COURSE OF SEARCH HAD A CLOSE ASSOCIATION WITH THE GROUP CONCERN OF R. IT RECORDED THE TRANSACTION CARRIED OUT BY THE ASSESSEE. UNDER THE WEALTH - TAX ACT 1957 ASSETS BELONGING TO THE ASSESSEE 5 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) CONNOTES BOTH THE COMPLETE OWNERSHIP AND LIMITED OWNERSHIP OF INTEREST. OF COURSE, BELONGING TO IS CAPABLE OF CONNOTING INTEREST WHICH IS LESS THAN AN ABSOLUTE PERFECT LEGAL TITLE. HOWEVER, THERE SHOULD BE SOME LIMITED OWNERSHIP O F INTEREST, IF IT IS TO BE PERMITTED THAT THE ASSETS BELONG TO THE ASSESSEE. IN THE INSTANT CASE, DOCUMENTS OR BOOKS OF ACCOUNT FOUND DURING THE COURSE OF SEARCH AND SEIZED COULD NOT BE TERMED TO BE INDICATING ANY LIMIT INTEREST OF THE OWNERSHIP OF THE ASS ESSEE IN SUCH BOOKS OF ACCOUNT OR DOCUMENTS. THE LANGUAGE USED IN SECTION 153C IS MATERIALLY DIFFERENT FROM THE LANGUAGE USED UNDER SECTION 158BD. AS PER SECTION 158BD, IF ANY UNDISCLOSED INCOME RELATES TO OTHER PERSON, THEN ACTION AGAINST SUCH OTHER PERSO N CAN BE TAKEN, PROVIDED SUCH UNDISCLOSED INCOME IS REFERABLE TO THE DOCUMENT SEIZED DURING THE COURSE OF SEARCH. HOWEVER, SECTION 153C SAYS THAT IF VALUABLE OR BOOKS OF ACCOUNTS OR DOCUMENTS BELONGING TO THE OTHER PERSONS ARE SEIZED THEN ACTION UNDER SAID SECTION CAN BE TAKEN AGAINST THE PERSON. IN THE INSTANT CASE, THE BOOKS OF ACCOUNT OR DOCUMENTS DID NOT BELONG TO THE ASSESSEE AND, THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING ACTION AGAINST HIM UNDER SECTION 153A, READ WITH SECTION 1 53C. (III) THE HONBLE ITAT A BENCH, AHMEDABAD IN THE CASE OF MEGHMANI ORGANICS LTD VS DY,. CIT (AHD) (129TTJ 255) IN PARAGRAPH 10 HELD THAT INITIATING ACTION UNDER S. 153C OF THE ACT FOR FRAMING ASS E SSMENT UNDER S. 153A, THE PREREQUISITE IS THAT TH E SATISFACTION OF THE A O THAT THE MONEY ETC., AND DOCUMENTS ETC., BELONGS TO A PERSON OTHER THAN THE PERSON SEARCH UNDER S. 132 OF THE ACT. THE A O IN THE ASSESSMENT ORDER HAS CATEGORICALLY HELD THAT PP.87 TO 91 OF ANNEX. A - 4 SEIZED FROM LALIT K PATEL ARE H IS OWN HANDWRITTEN ESTIMATE FOR THE PROPOSED WORK OF THE ASSESSEE. THEREFORE, THOUGH THESE DOCUMENTS MAY REFER TO FOR THE WORK PROPOSED ON BEHALF OF THE ASSESSEE, THE SAME CANNOT BE CONSIDERED AS DOCUMENTS BELONGING TO THE ASSESSEE. IF A PERSON MAKES SOM E JOTTINGS/NOTES ETC., FOR HIS OWN PURPOSE AND WHICH HAVE NO NEXUS TO HOLD THAT IT BELONGS TO OTHER PER S ON AND ALSO DOES NOT CONTAIN A MATERIAL WHICH REVEALS ANY INCOME THEREIN, CANNOT BE USED SO AS TO INITIATE ACTION UNDER SECTION 153C OF THE ACT. SIMILAR LY, PP.84 TO 86 OF ANNEX.A - 4 SEIZED FROM THE RESIDENCE OF LALIT K PATEL ARE RECORD MAINTAINED BY LALITH K PATEL FOR HIS OWN PURPOSE. THE SAID DOCUMENTS TO NOT BELONG TO THE ASSESSEE THOUGH IT MAY REFER TO THE WORK CARRIED ON BEHALF OF THE ASSESSEE. IF THE ASSESSEE HAS ENGAGED THE SERVICES OF A PROFESSIONAL AND IF THE PROFESSIONAL MAINTAINS HIS OWN RECORD FOR THE PURPOSE OF RENDERING HIS SERVICES, THE DOCUMENTS CANNOT BE SAID TO BE BELONGING TO SUCH OTHER PERSON. SHRI. LALIT K PATEL WAS ENGAGED BY THE ASSESS EE AND HE WAS EXPECTED TO VERIFY THE BILLS RAISED BY THE DEPENDENT CONTRACTORS SO AS TO CERTIFY THAT THE BILLS RAISED ARE IN ACCORDANCE WITH THE TERMS OF CONTRACT AND ALSO CONTAIN DEDUCTIONS FOR MATERIALS SUPPLIED BY THE ASSESSEE. THIS BEING THE DOCUMENT M AINTAINED BY LALIT K PATEL FOR HIS PERSONAL PURPOSE, THOUGH MAY BE REFERABLE TO THE ASSESSEE, CANNOT BE CONSIDERED AS BELONGING TO THE ASSESSEE. 6 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) IN VIEW OF THE FACT AND JUDICIAL PRONOUNCEMENTS DISCUSSED ABOVE, AS THE PRIMARY CONDITIONS FOR ISSUE OF NOTI CE UNDER SECTION 153C OF IT ACT ARE NOT SATISFIED, HENCE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING PROCEEDINGS UNDER SECTION 153C OF THE IT ACT AND PASSING ORDERS UNDER SECTION 153C R.W.S . 143(3) OF THE IT ACT. THEREFORE, THE APPEALS FILED ON GROUND NO. 2 & 3 FOR THE ABOVE ASSESSMENT YEARS ARE ALLOWED. 3.3 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE CIT(A) HAS DELETED THE ADDITION ON THE BASIS THAT NOTICE ISSUE D U/S 153C IS NOT JUSTIFIED. HENCE, AO WAS NOT JUSTIFIED IN INITIATING PROCEEDINGS U/S 153C OF THE ACT. SIMILARLY, THE CROSS OBJECTION HAS ALSO BEEN FILED BY THE ASSESSEE ON THE SAME GROUND. THEREFORE, WE DEAL THESE TOGETHER. 3.4 THE ASSESSEES CROSS OBJECTION IS ON THE GROUND THAT DURING THE SURVEY PROCEEDINGS CARRIED OUT IN THE CASE OF MR. SADIQ SHAIKH, AGREEMENTS WERE FOUND AND IN THESE AGREEMENTS, MR. SADIQ SHAIKH HAD AGREED TO HAND OVER FOUR FLATS TO THE ASSESSEE. THE ASSESSEES MAIN CONTENTION IS THAT THESE DOCUMENTS WERE NOT FOUND DURING THE COURSE OF SEARCH BUT THESE DOCUMENTS WERE FOUND DURING THE COURSE OF SURVEY. THEREFORE, THE PROCEEDINGS U/S 153C CANNOT BE ISSUED IN THE CASE OF THE ASSESSEE. THEREFORE, THE AO IS NOT HAVING JURISDICTION TO ASSESS OR RE - ASSESS INCOME UNDER SEC. 153A R/W SEC. 153C OF THE ACT. 3.5 ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER OF THE A.O. 3.6 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. THE PROVISIONS OF SEC. 153 OF THE ACT READS AS UN DER : 153C. [(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 7 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT 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 THE PROVISIONS OF SECTION 153A :] ON THE PLAIN READIN G OF THE AFORESAID PROVISION, IT IS APPARENT THAT SECTION 153 IS SIMILARLY WORDED TO SECTION 158BD OF THE ACT. THE FIRST AND FOREMOST CONDITION IS THAT IF THE A.O IS SATISFIED THAT ANY MONEY , BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOK S OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SEC. 153A, HE SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON. ON THIS PLAIN READING OF THE SECTION IT IS NECESSARY THAT THE A.O OF MR. SADIQ SHAIKH MUST RECORD SATISFACTION BEFORE HANDING OVER THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH TO THE A.O OF THE ASSESSEE THAT THESE DOCUMENTS BELONGED TO THE ASSE SSEE. UNLESS AND UNTIL THIS SATISFACTION IS RECORDED, THE A.O OF THE ASSESSEE IS NOT ENTRUSTED WITH THE JURISDICTION TO INITIATE PROCEEDINGS U/S 153C IN THE CASE OF THE ASSESSEE. IN THIS CASE, THE AGREEMENTS WERE NOT FOUND DURING THE COURSE OF SEARCH BUT WERE IMPOUNDED DURING THE COURSE OF SURVEY CARRIED OUT IN THE CASE OF MR. SADIQ SHAIKH. WE HAVE ALSO INQUIRED FROM THE LD. DR WHETHER THE DOCUMENTS WERE IMPOUNDED DURING THE COURSE OF SEARCH IN THE CASE OF MR. SADIQ SHAIKH OR WERE IMPOUNDED DURING THE CO URSE OF SURVEY. THE LD. DR SUBMITTED THAT THE DOCUMENTS WERE FOUND DURING THE COURSE OF SURVEY. THEREFORE, IN THIS CASE, A CONDITION PRECEDENT FOR ISSUING NOTICE U/S 153C AND ASSESSING OR RE - ASSESSING THE INCOME OF OTHER PERSON IS THAT MONEY, BULLION, JE WELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS TO SUCH PERSON. THIS REQUIREMENT IS NOT SATISFIED. THEREFORE, A.OS RESORT TO PROVISIONS OF SEC. 153C OF THE ACT IS NOT VALID. WE HAVE EXAMINE D THE FACTS IN THE PRESENT CASE IN THE LIGHT OF LAW. IT IS ADMITTED POSITION EMERGING FROM THE RECORDS THAT THE DOCUMENTS I.E. AGREEMENTS WERE RECOVERED DURING THE 8 ITA NO. 92/PNJ/2012 & CO NO. 6/PNJ/2013 (ASST. YEAR : 2004 - 05) SURVEY PROCEEDINGS AND NOT FOUND DURING THE COURSE OF SEARCH. MOREOVER, THESE DOCUMENTS WE RE UNREGISTERED AGREEMENTS. UNDER THESE CIRCUMSTANCES, THE CONDITION PRECEDENT FOR ISSUING NOTICE U/S 153C IS NOT FULFILLED AND ANY ACTION TAKEN U/S 153 OF THE ACT STANDS VITIATED. WE HOLD THAT THE NOTICE U/S 153C IS NOT VALID NOTICE AS THE A.O WAS NOT H AVING VALID JURISDICTION TO ISSUE NOTICE U/S 153C OF THE ACT AND THE ASSESSMENT ORDER IS AB INITIO OPPOSED TO LAW. IN THE RESULT, THE C.O IS ALLOWED. 4. IN THE RESULT, THE DEPARTMENTS APPEAL IS DISMISSED AND THE C.O OF THE ASSESSEE IS ALLOWED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 6 /2013. SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER SD/ - (D.T.GARASIA) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 28 / 6 / 2013 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA