SMT. CHITRA ASHOK KUMAR, Bangalore V. DCIT, Bangalore

ITA 1088/BANG/2010

• Counselvise Citation: 108821114 RSA 2010
• Duration Of Justice: 2 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-11-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTSARAN MANTRI ACIT
• Assessee Lawyers: S K BABU PRASAD
• Keywords: Salary income; Loose papers; Document seized; Documents seized
• Section: 143(3); 153A; 131; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SMT. P MADHAVI DEVI, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER ITA NO.1088/BA NG/2010 (ASST. YEAR - 2006-07) SMT. CHITRA ASHOK KUMAR, NO.100, 4 TH MAIN, CANARA BANK COLONY, NAGARBHAVI ROAD, BANGALORE-560 072. . APPELLANT PAN NO.ACLPC1860D. VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-- 1(1), BANGALORE. . RESPONDENT APPELLANT BY : SHRI S.K BABU PRASAD, ADVOCATE RESPONDENT BY : SHRI SANTSARAN MANTRI, ACIT DATE OF HEARING : 07-11-2012 DATE OF PRONOUNCEMENT : 31-12-2012 O R D E R PER P MADHAVI DEVI, JUDICIAL MEMBER THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2006-07. THE APPEAL IS DIRECTED AGAINST TH E ORDER OF THE ITA NO.1088/B/10 2 COMMISSIONER OF INCOME-TAX (APPEALS) VI AT BANGAL ORE DATED 20-07-2010. THE APPEAL ARISES OUT OF THE ASSESSMEN T COMPLETED U/S 153C R.W.S 143(3) OF THE INCOME-TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING CONCISE GR OUNDS OF APPEAL: I. WITHOUT PREJUDICE TO THE OTHER GROUNDS THE LD. LOWER AUTHORITIES ERRED IN MAKING AN ADDITION OF RS.68 LAKHS BY HOLDING THAT DIARY SEIZED IS AN EVIDENCE OF RECEIPT OF RS.68 LAKHS AND ITS DISTRIBU TION WITHOUT APPRECIATING THE FACT THAT THE TOTAL OF DISTRIBUTION COMES TO RS.70 LAKHS WHAT IS WRITTEN I N THE DIARY IS DISTRIBUTION AND RS.70 LAKHS CANNOT BE DISTRIBUTED OUT OF RS.68 LAKHS AND AS SUCH THE EARL IER STATEMENT THAT THE CONSIDERATION RECEIVED IS RS.25 LAKHS ONLY IS CORRECT AND RECEIPT OF CONSIDERATION OF RS.S68 LAKHS AND 25 LAKHS IS AGAINST ALL PROBABILIT IES AND EVIDENCES. II. WITHOUT PREJUDICE TO OTHER GROUNDS THE LD. AUTHORITIES ALSO FAILED TO APPRECIATE THAT THE OTHE R EVIDENCE RELED ON NAMELY STATEMENT OF SHRI ASHOK KUMAR RECORDED U/S 131(1A) IS ALSO UNRELIABLE SINCE IT IS INCORRECT IN MATERIALS ON RECORD IN AS MUCH A S ITA NO.1088/B/10 3 RS.68 LAKHS RECEIVED ON 7.3.2006 COULD NOT HAVE BEE N INVESTED IN PURCHASE OF PROPERLY AT 908D AT RAJESWA I NAGAR ON 8.12.2005 AND THE SAID STATEMENT IS ALSO INVALID SINCE IT IS TAKEN AFTER SEARCH AND NOTICE O F ENHANCEMENT ISSUED BY LD. CIT(A) IS AN AFTER THOUGH T TO COVER UP THIS LAPSE. III. THE LEARNED LOWER AUTHORITIES FAILED TO APPREC IATE THAT THE AO GETS NO JURISDICTION U/S 153C BECAUSE T HE DIARY SEIZED BELONGS TO THE HUSBAND OF THE APPELLAN T AND IS IN HIS HAND WRITING AND NOT TO THE ASSESSEE AND THAT THE ADDITION IS NOT BASED ON THE AGREEMENT BUT ON THE DIARY SEIZED AND HENCE SEIZURE OF AGREEMENT CONFERS NO JURISDICTION U/S 153C OF THE ACT. IV. THE LEARNED AUTHORITIES FAILED TO APPRECIATE TH AT NO ORAL EVIDENCE IS ADMISSIBLE AGAINST THE WRITTEN AGREEMENT WHICH CONTAINS ALL THE TERMS AND CONDITIONS OF SALE. V. WITHOUT PREJUDICE TO OTHER GROUNDS THE ASSESSMEN T IS ALSO TIME BARRED SINCE IT IS NOT SERVED WITHIN T IME ALLOWED BY 153B OF THE ACT VIDE DECISION IN (2010) 17 C.PT 459. ITA NO.1088/B/10 4 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVING INCOME FROM SALARY AND OTHER SOURCES. ACT ION U/S 132 OF THE INCOME-TAX ACT INITIATED IN THE CASE OF THE ASSESSE ES HUSBAND SHRI B.K ASHOK KUMAR ON 22.9.2006. DURING THE COU RSE OF SEARCH, CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM THE PR EMISES OF SHRI B.K ASHOK KUMAR. ONE OF THE DOCUMENTS FOUND IS A PO CKET DIARY MARKED AS NO.2 WHICH CONTAINED DETAILS OF RECEIPT O F RS.68 LAKHS FROM ONE INDRAJEET. THE DOCUMENT IS DATED 7.3.2006. TH E ASSESSEES HUSBAND SHRI B.K ASHOK KUMAR WAS ASKED TO EXPLAIN T HE CONTENTS OF THE SAID DOCUMENT IN THE SEIZED MATERIAL VIS.A.VIS THE SALE TRANSACTION OF SITE NO.618 BY THE ASSESSEE. AFTER GOING THROUGH THE SEIZED MATERIAL, IN THE STATEMENT RECORDED U/S 131 ON 8.12 .2006, SHRI B.K ASHOK KUMAR REPLIED THAT ON THE SAID PAGE HE HAS D ETAILED RECEIPTS FROM SMT. ARPITA, W/O SHRI INDRAJIT LANKESH AN AMOU NT OF RS.68 LAKHS AND THAT IN QUERY NO.7 DATED 7.12.2006 HIS BROTHER SHRI B.K NAGENDRA KUMAR, IN HIS PRESENCE, HAS DECLARED THIS TRANSACT ION VOLUNTARILY. HE ALSO SUBMITTED THAT IN VIEW OF THE SAID SEIZED MATE RIAL, HE IS OFFERING RS.67,35,000/- AS LONG TERM CAPITAL GAINS FOR THE ASSESSMENT YEAR 2006-07 IN THE HANDS OF HIS WIFE SMT. CHITRA AND TH AT THE SAID CAPITAL GAIN HAS BEEN UTILIZED FOR THE PURCHASE OF RESIDENT IAL PROPERTY AT 908 D AT RAJARAJESWARI NAGAR AND FOR THE CONSTRUCTION OF COMMERCIAL ITA NO.1088/B/10 5 COMPLEX AT SITE NO.289/A, RAJARAJESWARI NAGAR, BANG ALORE. THEREFORE A NOTICE U/S 153 WAS ISSUED TO THE ASSESSEE. IN RES PONSE TO SAME, THE ASSESSEE FILED A RETURN OF INCOME FOR THE ASSESSMEN T YEAR 2006-07 ON 31.3.2008 DECLARING A TOTAL INCOME OF RS.26,27,390/ -. IN THE SAID RETURN, THE ASSESSEE HAS OFFERED THE SALE CONSIDERA TION OF RS.25 LAKHS ONLY AND NOT RS.68 LAKHS AS ADMITTED BY HER HUSBAND BEFORE ADIT (INV.), UNIT II (2), BANGALORE. THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE SALE CONSIDERATION SHOULD NOT BE TAKE N AT RS.68 LAKHS AS DECLARED BY HER DURING THE STATEMENT RECORDED U/S 1 31 OF THE I.T ACT. IN RESPONSE TO THE SAME, THE ASSESSEE FILED A REPLY STATING THAT THE STATEMENT OFFERING THE LONG TERM CAPITAL GAIN OF RS .67,35,000/- WAS MADE BY HER HUSBAND ON HER BEHALF BUT ON VERIFICATI ON OF THE MATERIAL/DOCUMENTS WITH HER, IT IS FOUND THAT THE A CTUAL AMOUNT RECEIVED BY HER TOWARDS SALE OF SITE NO.618, IDEAL HOME 1 ST PHASE, RAJARAJESWARINAGAR, BANGALORE IS ONLY RS.25 LAKHS WHICH WAS RECEIVED BY CHEQUE NO.130493 ON 15.12.2006 WHICH WA S DULY ACCOUNTED IN HER PASS BOOK AND DECLARED AS SALE VA LUE UNDER THE HEAD LONG TERM CAPITAL GAIN IN HER STATEMENT OF TOTAL INCOME FOR THE ASSESSMENT YEAR 2006-07. SHE SUBMITTED THAT SHE HA S DECLARED RS.25 LAKHS AS THE SALE VALUE AND DOES NOT SUBSCRIBE TO T HE ASSUMPTION OF THE ITA NO.1088/B/10 6 INVESTIGATION AUTHORITY THAT THE SAID ENTRIES IN T HE DIARY WRITTEN BY HER HUSBAND IS RELATABLE TO THE SAID TRANSACTION. 4. SHE FURTHER SUBMITTED THAT SHE WAS ONLY A LEASE CUM SALE HOLDER OF THE SITE ALLOTTED BY THE IDEAL HOMES SOCIETY, RA JARAJESWARINAGAR, BANGALORE AND HAD NO ABSOLUTE TITLE OVER THE SAID S ITE ON THE DATE OF SALE TILL THE ASSESSEE CONSTRUCTS A BUILDING AND SH E WOULD BECOME THE ABSOLUTE OWNER OF THE SAID PROPERTY AS PER THE BYLA W OF THE SAID SOCIETY AND THAT SHE HAS RECEIVED RS.25 LAKHS ONLY AGAINST RELINQUISHMENT OF HER RIGHT OVER THE SAID PROPERTY. SHE ALSO REQUESTED THAT THE PURCHASER SMT.ARPITHA SHOULD BE CROSS VER IFIED ABOUT THE SAID TRANSACTION. AS REGARDS ENTRIES MADE BY HER HUSBAN D IN THE SEIZED DIARY, SHE SUBMITTED THAT THIS AMOUNT MAY HAVE RELA TED TO ATTEMPTED SALE OF SITE NO.331 AGAINST WHICH AN AMOUNT OF RS.6 8 LAKHS WAS DECIDED BUT SHOULD NOT BE MATERIALIZED SINCE THE SA ID SITE WAS UNDER LITIGATION AND THAT NOTICE WAS ISSUED TO HER HUSBAN D SHRI B.K ASHOK KUMAR BY THE REVENUE DEPARTMENT. SHE THUS, REBUTTE D STATEMENT MADE BY HER HUSBAND SHRI B.K ASHOK KUMAR ON HER BE HALF AND STATED THAT RS.25 LAKHS ONLY IS THE CORRECT SALE VALUE AG AINST THE SALE OF SITE NO.618. THE AO WAS HOWEVER NOT CONVINCED WITH THE ABOVE CONTENTIONS OF THE ASSESSEE. HE HELD THAT THE ASSE SSEE HAD DECLARED THE ITA NO.1088/B/10 7 SALE CONSIDERATION TO BE RS.68 LAKHS BEFORE DDIT (I NV.) AND SUBSEQUENT STATEMENT THAT THE SALE CONSIDERATION IS ONLY 25 LAKHS IS AN AFTERTHOUGHT. HE FURTHER OBSERVED THAT FROM THE AN ALYSIS OF THE SEIZED DAIRY AT PAGE 2, IT IS SEEN THAT THE MONEY WAS RECE IVED BY THE ASSESSEE THAT IT WAS DISTRIBUTED AMONGST THE FAMILY MEMBERS OF THE ASSESSEE AND, THEREFORE, THERE WAS DEFINITELY A TRANSFER OF CASH BETWEEN THE ASSESSEE AND THE BUYER AND THAT THE ASSESSEES VERS ION THAT IT WAS ONLY AN ATTEMPTED SALE IS NOT ACCEPTABLE. THEREFORE HE CAME TO THE CONCLUSION THAT THE SALE CONSIDERATION FOR THE SALE OF SITE IS RS.68 LAKHS. HE, ACCORDINGLY MADE THE ADDITION OF RS.43 LAKHS AND COMPUTED THE INCOME OF THE ASSESSEE. 5. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(A) REITERATING THE SUBMISSIONS MADE BY THE ASSESSEE BE FORE THE AO AND ALSO STATING THAT THE ASSESSEES REQUEST TO EXAMINE MRS. ARPITA AS TO THE CONSIDERATION PAID BY HER WAS NOT CONSIDERED OU T BY THE LEARNED AO AND ALSO THAT NO OTHER EVIDENCES HAVE BEEN FOUND BY THE AO AS TO THE INVESTMENT OF THE SAID SUM OF RS.68 LAKHS BY TH E ASSESSEE. SHE FURTHER SUBMITTED THAT THE ASSESEES HUSBAND, DURIN G THE COURSE OF SEARCH, HAD STATED THAT THE SALE CONSIDERATION WAS RS.25 LAKSH ONLY AND IT IS ONLY SUBSEQUENT STATEMENT RECORDED U/S 131 ON 8.12.2006 THAT HE ITA NO.1088/B/10 8 HAD STATED THE SALE CONSIDERATION TO BE RS.68 LAKHS . THUS, ACCORDING TO THE ASSESSEE, THE AO OUGHT TO HAVE VERIFIED WHIC H OF THE STATEMENTS MADE BY ASESSEES HUSBAND WAS CORRECT BY MAKING FUR THER INVESTIGATIONS AND ENQUIRIES. SHE FURTHER SUBMITTE D THAT THE AGREEMENT OF SALE FOR THE SAID PROPERTY WAS ENTERED ON 7.3.20 06 WHILE THE SEARCH TOOK PLACE ON 22.9.2006 I.E WITHIN 6 MONTHS THEREOF AND ANY EXPENDITURE ON INVESTMENT MADE DURING THE PERIOD WO ULD HAVE SURFACED IN THE SEARCH IF THERE WERE ANY INVESTMENT OR EXPENDITURE AND THUS ACCORDING TO HER THERE WAS NO MATERIAL FOUND I N SUPPORT OF THE DOCUMENT WHICH ALLEGEDLY RECORDED THE SALE CONSIDER ATION OF 68 LAKHS. THE ASSESSEE ALSO TOOK A PLEA THAT THE DIARY DOES N OT BELONG TO THE ASSESSEE BUT TO THE PERSON REFERRED IN SEC. 153A AN D, THEREFORE, THE ASSUMPTION OF JURISDICTION U/S 153C IS NOT VALID. 6. THE CIT(A) AFTER CONSIDERING THE ASSESSEES CONT ENTIONS AT LENGTH AND THE STATEMENT OF THE ASSESSEES HUSBAND ON 8.12.2006, OBSERVED THAT THE STATEMENT OF SHRI B.K ASHOK KUMAR WAS RECORDED AFTER 2 MONTHS OF THE SEARCH WHICH MAKES IT CLEAR T HAT THE STATEMENT WAS GIVEN AFTER UNDERSTANDING THE SEIZED MATERIAL P ROPERLY AND AFTER DISCUSSION WITH THE ASSESSEE. HE OBSERVED THAT THE HUSBAND OF THE ASSESSEE, WHO HIMSELF HAS WRITTEN THE DIARY HAD ADM ITTED THAT RS.68 ITA NO.1088/B/10 9 LAKHS IN CASH IS RECEIVED IN RESPECT OF SALE OF THE SITE BEARING NO.618 TO SMT. ARPITHA, W/O SHRI INDRAJIT LANKESH BY THE A SSESEE WHICH IS FURTHER CORROBORATED FROM THE FACT THAT THE DATE M ENTIONED IN THE NOTING IS 7.3.2006 WHICH IS THE DATE OF AGREEMENT O F SALE ENTERED INTO IN RESPECT OF THE ABOVE PROPERTY. HE FURTHER OBSER VED THAT THE ASSESSEE HAS INVESTED A SUM OF RS.25 LAKHS FOR THE PURCHASE OF RESIDENTIAL PROPERTY BEARING NO.908D IN IDEAL HOME CO-OPERATIVE BUILDING SOCIETY AS PER THE SALE DEED DATED 8.12.2005 AND AC CORDING TO THIS SALE AGREEMENT, AN AMOUNT OF RS.25 LAKHS WAS PAID THROUG H PAY ORDER ON 8.12.2005, WHICH IS SIX WEEKS AFTER THE CONSIDERATI ON OF RS.25 LAKHS WAS RECEIVED THROUGH CHEQUE FROM SMT. ARPITA ON 1.1 2.2005. HE ALSO OBSERVED THAT THE AGREEMENT OF SALE IS NOT ENTERED BEFORE THE ENTIRE SALE CONSIDERATION IS PAID AND, THEREFORE, IT IS CL EAR THAT THOUGH THE ASSESSEE HAS RECEIVED 25 LAKHS ON 1.12.2005, THE AS SESEE HAS ENTERED INTO THE AGREEMENT OF SALE ON 7.3.2006 AFTER RECEIP T OF THE ENTIRE SALE CONSIDERATION OF RS.68 LAKHS. HE FURTHER OBSERVED THAT THE AO HAS DEMONSTRATED RS.68 LAKHS TO BE ENTIRE SALE CONSIDER ATION BUT ACCORDING TO THE CIT(A) RS.68 LAKHS IS RECEIVED IN CASH IN A DDITION TO THE SALE CONSIDERATION OF RS.25 LAKHS RECEIVED THROUGH CHEQU E. HE, THEREFORE, ISSUED A NOTICE OF ENHANCEMENT U/S 251(2) OF THE IN COME-TAX ACT. THE CIT(A) DID NOT ACCEPT THE SUBMISSION OF THE ASSESSE E AND HELD THAT ITA NO.1088/B/10 10 SALE CONSIDERATION IS 93 LAKHS. HE ACCORDINGLY ENH ANCED THE INCOME, ASSESSED BY THE AO BY RS.68 LAKHS. 7. AS REGARDS ASSESSEES GROUNDS RELATING TO ASSUM PTION OF JURISDICTION U/S 153C TO BE INVALID, THE CIT(A) HEL D THAT NO SUCH GROUND WAS TAKEN IN THE APPEAL FILED NOR ANY REQUES T WAS MADE TO ADMIT THE ADDITIONAL GROUND AND, THEREFORE, SUCH AR GUMENTS CANNOT BE ENTERTAINED AT THAT STAGE. FURTHER HE ALSO OBSERVE D THAT THE DOCUMENT SEIZED BELONGED TO A PERSON OTHER THAN THE PERSON S EARCHED AND, THEREFORE, ACTION U/S 153C IS RIGHTLY ASSUMED. 8. AGGRIEVED BY THE SAID FINDING OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 9. IN ADDITION TO THE ORAL ARGUMENTS ADVANCED BY T HE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE HAS ALSO FIL ED THE WRITTEN SUBMISSIONS REITERATING THE CONTENTIONS OF THE ASSE SSEE. 10. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE NOTING IN THE DIARY WRITTEN BY THE ASSESSEES HUSBAND CLEARLY ESTABLISHES THAT THE ASSESSEE HAS ITA NO.1088/B/10 11 RECEIVED A SUM OF RS.68 LAKHS IN CASH IN ADDITION T O RS.25 LAKHS IN CHEQUE AND, THEREFORE, THE ADDITION MADE BY THE CIT (A) IS CORRECT. AS REGARDS THE ASSUMPTION OF JURISDICTION U/S 153C OF THE INCOME-TAX ACT IS CONCERNED, THE LEARNED DR SUBMITTED THAT NOTING IN THE DIARY PERTAINS TO THE PROPERTY SOLD BY THE ASSESSEE AND, THEREFORE, THE AO HAS RIGHTLY ASSUMED THE JURISDICTION U/S 153C OF TH E INCOME-TAX ACT. 11. HAVING HEARD BOTH THE PARTIES AND HAVING CONSID ERED THEIR RIVAL CONTENTIONS, WE FIND THAT THE ASSESSEE HAS TAKEN TH E FOLLOWING OBJECTIONS TO THE ASSESSMENT OF INCOME 1) THE DOCUMENT SEIZED DURING THE COURSE OF SEARCH DO ES NOT BELONG TO THE ASSESSEE AND HIS ASSUMPTION OF JU RISDICTION U/S 153C IS NOT CORRECT 2) THE TOTAL AMOUNTS DISBURSED AMONG THE FAMILY MEMBER S AS NOTED AT PAGE 2 OF THE POCKET DIARY SEIZED IS RS.70 LAKHS AND, THEREFORE, IT IS A QUESTION AS HOW RS.70 LAKHS CAN BE DISBURSED OUT OF RS.68 LAKHS. THUS, ACCORDING TO H IM THE SAID NOTE IS NOT RELIABLE. ITA NO.1088/B/10 12 3) THE ASSESSEES HUSBAND DURING THE STATEMENT RECORDE D U/S 132(4) ON THE DATE OF SEARCH HAS CLEARLY STATED THA T THE SALE CONSIDERATION IS RS.25 LAKHS ONLY AND, THEREFORE, T HE SAID STATEMENT ALONE IS TO BE CONSIDERED. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE THE STATEMENT RECO RDED U/S 131(1) HAS NO LEGS TO STAND AS IT IS TO BE PRECEDED BY THE SEARCH AND THE STATEMENT RECORDED U/S 132(4) AND NO T VIS-A- VIS. NO EVIDENCE HAS BEEN FILED DURING THE COURSE OF SEARCH IN SUPPORT OF RECEIPT OF RS.68 LAKHS AND SUBSEQUENT INVESTMENTS OF THE SAME BY THE ASSESSEE. 12. HAVING HEARD BOTH THE PARTIES AND HAVING CONSID ERED THEIR RIVAL CONTENTIONS, WE FIND THAT THE FIRST QUESTION BEFORE US IS WHETHER THE DOCUMENT FOUND AND SEIZED DURING THE COURSE OF SEAR CH BELONGS TO THE ASSESSEE AND WHETHER THE AOS ASSUMPTION OF JURISD ICTION U/S 153C IS JUSTIFIED AND VALID. THE UNDISPUTED FACTS ARE THAT THE SEARCH U/S 132 OF THE INCOME-TAX ACT WAS CONDUCTED IN THE CASE OF THE ASSESSEES HUSBAND SHRI B.K ASHOK KUMAR. THE DIARY FOUND AND SEIZED WAS FROM THE PREMISES OF SHRI B.K ASHOK KUMAR AND THE D AIRY ALSO BELONGS TO HIM. THE ENTRY IN THE DIARY WHICH IS RE LIED UPON BY THE LEARNED AO IS ALSO IN THE HAND WRITING OF SHRI ASHO K KUMAR. THE ITA NO.1088/B/10 13 EXPLANATION OF THE HUSBAND OF THE ASSESSEE IS THAT THE ENTRY RELATES TO THE PROPERTY SOLD BY HIS WIFE I.E THE ASSESSEE HERE IN. IN SUCH CIRCUMSTANCES, CAN THE DOCUMENT BE SAID TO BE BELON GING TO THE ASSESSEE HEREIN. WE FIND THAT SUCH A SITUATION HAS BEEN CONSIDERED BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAY ABHAI N CHANDRANI REPORTED IN 333 ITR 436. IN THE SAID CAS E, THE ASSESSEE THEREIN HAD PURCHASED A PLOT OF LAND IN ONE HOUSING SOCIETY. THERE WAS SEARCH CONDUCTED U/S 132 OF THE INCOME-TAX ACT IN THE PREMISES OF THE SOCIETY AS WELL AS THE OFFICE OF THE BUILDER AND CERTAIN DOCUMENTS PERTAINING TO THE ASSESSEE WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH. THE AO SOUGHT TO ASSUME JURISDIC TION U/S 153C OF THE INCOME-TAX ACT BY ISSUANCE OF NOTICE U/S 153C O F THE INCOME-TAX ACT TO THE ASSESSEE. ON A CHALLENGE BY THE ASSESSE E, THE HONBLE HIGH COURT HAS EXAMINED THE APPLICABILITY OF THE PROVISI ONS OF SEC. 153A, 153B AND 153C OF THE INCOME-TAX ACT VIS--VIS, THE PROVISION OF SEC. 158BD OF THE INCOME-TAX ACT AND HAS HELD AS UNDER : ON A PLAIN READING OF THE AFORESAID PROVISIONS IT IS APPARENT THAT SECTIONS 153A, 153B AND 153C LAY DOWN A SCHEME FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. SECTION 153A DEALS WITH PROCEDURE FOR ISSUANCE OF NOTICE AND ASSESSMENT OR ITA NO.1088/B/10 14 REASSESSMENT IN CASE OF THE PERSON WHERE A SEARCH I S INITIATED U/S 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS ARE REQUISITIONED U/S 132A AFTE R THE 31 ST DAY OF MAY, 2003. SECTION 153B LAYS DOWN THE TIME LIMIT FOR COMPLETION OF ASSESSMENT U/S 153 A. SECTION 153C WHICH IS SIMILARLY WORDED TO SECTION 158BD OF THE ACT, PROVIDES THAT WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWEL LERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCO UNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED T O IN SEC. 153A HE SHALL PROCEED AGAINST EACH SUCH OTH ER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSES S OR REASSESS INCOME OF SUCH OTHER PERSON. HOWEVER, THERE IS A DISTINCTION BETWEEN THE TWO PROVISIONS I N AS MUCH AS U/S 153C NOTICE CAN BE ISSUED ONLY WHERE TH E MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO SUCH OTHER PERSON, WHEREAS U/S 158BD, IF THE AO IS SATISFIED THAT ANY UNDISCLO SED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE U/S 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS WERE REQUISITIONED U/S 132A, HE SHALL PROCEED AGAIN ST SUCH OTHER PERSON U/S 158BD. THUS, A CONDITION PRECEDENT FOR ISSUING NOTICE U/S 153C AND ASSESSING OR REASSESSING INCOME OF SUCH ITA NO.1088/B/10 15 OTHER PERSON, IS THAT THE MONEY, BULLION, JEWELLERY 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 SATISF IED, RECOURSE CANNOT BE HAD TO THE PROVISIONS OF SEC. 15 3C OF THE ACT. EXAMINING THE FACTS OF THE PRESENT CASE IN THE LIG HT OF THE AFORESAID STATUTORY SCHEME, IT IS AN ADMITTE D POSITION AS EMERGING FROM THE RECORD OF THE CASE, T HAT THE DOCUMENTS IN QUESTION, NAMELY 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 SAMUTKARSH MEMBERS DETAILS AND CERTAIN DETAILS ARE GIVEN UNDER DIFFERENT COLUMN AGAINST THE NAME OF THE PETITIONER ALONG WITH OTHER MEMBERS, HOWEVER, IT IS NOBODYS CASE THAT THE SAID DOCUMENTS BELONG TO THE PETITION ER. IT IS NOT EVEN THE CASE OF THE REVENUE THAT THE SAI D THREE DOCUMENTS ARE IN THE HANDWRITING OF THE PETITIONER. IN THE CIRCUMSTANCES, WHEN THE CONDITI ON PRECEDENT FOR ISSUANCE OF NOTICE IS NOT FULFILLED A NY ACTION TAKEN U/S 153C OF THE ACT STANDS VITIATED. 13. WE FIND THAT THE FACTS BEFORE THE HONBLE GUJAR AT HIGH COURT IN THE CASE OF VIJAYBHAI N CHANDRANI (CITED SUPRA) ARE SIMILAR TO THE ITA NO.1088/B/10 16 FACTS OF THE CASE BEFORE US. THEREFORE, RESPECTFUL LY FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT, WE HOLD THAT THE DOCUMENT FOUND DURING THE COURSE OF SEARCH IN THE C ASE OF HUSBAND OF THE ASSESSEE DOES NOT BELONG TO THE ASSESSEE EVEN T HOUGH, THERE IS A REFERENCE IN THE SAID DOCUMENT ABOUT THE RECEIPT OF SALE CONSIDERATION BY THE ASSESSEE. THEREFORE, ASSUMPTION OF JURISDIC TION U/S 153C IS HELD TO BE NOT VALID. AS THE LEGAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, WE DO NOT SEE ANY REASON TO GO INTO T HE MERIT OF THE ADDITIONS AND OTHER ARGUMENTS RAISED BY THE ASSESSE E, AS IT WOULD AMOUNT TO ACADEMIC EXERCISE. 14. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 31/12/2012. SD/- SD/- (JASON P BOAZ) (MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER VMS. BANGALORE DATED : 31/12/2012 COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SR. PRIVATE SECRETA RY, ITAT, BANGALORE.