Shri Shailesh S. Patel, Palanpur V. The Income Tax Officer, Ward-5, Palanpur

ITA 3063/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2424 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 22-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Depreciation; Document seized; Tangible material; Reason to believe; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 68; 132; 139

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 3063/AHD/2016 ( ASSESSMENT YEAR : 2012-13) SHAILESH S. PATEL PROP. M/S. TORAN AUQA LINK, 23, NAVAL PARK SOCIETY, O/S. BECHARPURA RAILWAY FATAK, PALANPUR 385001, DIST. BANASKANTHA / VS. INCOME TAX OFFICER WARD-5, PALANPUR ./ ./ PAN/GIR NO. : AEFPP7860J ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS. AARTI SHAH, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 13/06/2018 !'# / DATE OF PRONOUNCEMENT 31/08/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-4, AHMEDAB AD (CIT(A) IN SHORT), DATED 21.09.2016 ARISING IN THE ASSESSMENT ORDER DATED 05.11.2015 PASSED BY THE ASSESSING OFFICER (AO) UND ER S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2012- 13. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE BY HOLDING THAT THE LEARNE D ASSESSING OFFICER HAS RIGHTLY INVOKED PROVISIONS OF SEC. 147 R.W.S. 148 OF THE I.T. ACT, 1961 OF THE IT. ACT, 1961 WHERE IN FACT N O SUCH SITUATION EXISTED IN THE CASE OF THE APPELLANT SO AS TO COME TO THE CONCLUSION THAT THE APPELLANT HAS CONCEALED ANY INCOME, AND TH EREFORE, ON THIS GROUND ITSELF, THE REOPENING OF THE ASSESSMENT AS W ELL AS RE- ASSESSMENT MADE, REQUIRES TO BE CONSIDERED AS ILLEG AL AND BAD AT LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN IN CONFIRMING THE ADDIT ION OF RS.1,22,24,800/-MADE BY THE LEARNED ASSESSING OFFIC ER IN THE TOTAL INCOME OF THE APPELLANT ON GROUND THAT THE APPELLAN T HAS CONCEALED THE INCOME BY NOT FURNISHING THE SOURCE OF INVESTME NT IN THE LAND THOUGH IN FACT THE APPELLANT HAS NOT PURCHASED ANY SUCH LAND AND NOT MADE ANY INVESTMENT IN LAND. 3. THE ASSESSEE ALSO FILED ADDITIONAL GROUND OF APP EAL VIDE APPLICATION DATED 03.04.2018 WHICH IS REPRODUCED AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX, (APPEAL S)-4, HAS ERRED IN CONFIRMING THE ADDITION U/S.68 OF RS.1,22,24,800/- IN RESPECT OF CASH PAID OF RS.10,00,000/- ON 30.09.2010 AND RS.1, 40,00,000/- ON 03.11.2010 IN ASST. YEAR 2012-13 TOWARDS BANAKHAT M ONEY THOUGH THE SAID DATES FALL IN ASST. YEAR 2011-12. THEREFO RE, THE ADDITION MADE IN ASST. YEAR 2012-13 IS PATENTLY WRONG. 4. THE ASSESSEE THEREAFTER FILED ANOTHER ADDITIONAL GROUND OF APPEAL VIDE APPLICATION DATED 05.06.2018 WHICH READS AS UN DER: 1. THE GROUND NO. 1 OF APPEAL BE ELABORATED BY INC LUDING THEREIN THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN AS MUCH AS THE ASSESSMENT HAS BEEN WRONGLY RE-OPENED & FINALIZED U/S.148 R.W.S. 147 OF THE INCOME TAX ACT, 1961 THOU GH THE PROVISIONS OF U/S.147 & 148 ARE NOT APPLICABLE IN CASE OF SEARCH ASSESSMENT. 5. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, IS ENGAGED IN THE TRADING OF SUBMERSIBLE PUMPS AND THEIR SPARE PARTS AS A PROPRIETARY BUSINESS. FOR THE AY 2012-13 IN CONSIDERATION, THE ASSESSEE FILED RETURN OF INCOME (ROI) ON 28.09.2012 DECLARING TOTA L INCOME AT RS.2,51,380/-. THE ASSESSMENT WAS COMPLETED UNDER S. 143(3) OF THE ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 3 - ACT VIDE ORDER DATED 27.08.2014 WHEREBY THE INCOME WAS ASSESSED AT RS.2,56,380/-. MEANWHILE, A SEARCH ACTION WAS CARR IED OUT IN THE CASE OF ONE SHRI RAMESHBHAI BANSILAL AGRAWAL GROUP ON 27 .09.2012. IN THE COURSE OF SEARCH, A BANAKHAT (AGREEMENT TO SALE ) DATED 06.11.2010 INTER ALIA FOUND AND SEIZED. THIS BANAKHAT REVEALED THAT THE ASSESSEE ALONGWITH OTHER FOUR PARTIES AGREED TO PURCHASE CER TAIN PARCEL OF LAND AT VILLAGE SUJANPUR FROM ONE SHRI CHANDANKUMAR RAMA NDAS POHANI. THE DETAILS OF LAND INCLUDING SURVEY NUMBERS AND LO CATION WERE FOUND TO BE MENTIONED IN BANAKHAT. THE CONSIDERATION FOR PURCHASE OF THE SAID LAND BY THE ASSESSEE ALONGWITH FOUR CO-OWNERS WAS MENTIONED IN THE BANAKHAT AT RS.6,11,24,000/-. THUS, 1/5 TH SHARE ATTRIBUTABLE TO THE ASSESSEE AMOUNTING TO RS.1,22,24,800/- WAS QUANTIFI ED BY THE AO AS SHARE OF INVESTMENT BY THE ASSESSEE IN THE AFORESAI D LAND AS CO-OWNER. IT WAS FURTHER FOUND FROM THE BANAKHAT THAT RS.10 L AKHS WAS PAID IN CASH BY THE BUYERS OF THE LAND ON 30.09.2010 AND AN OTHER RS.1,40,00,000/- WAS PAID ON THE DATE OF EXECUTION OF BANAKHAT. THUS, TOTAL AMOUNT PAID IN CASH TOWARDS PART CONSIDERATIO N STOOD AT RS.1,50,00,000/- FOR PURCHASE OF LAND AS PER THE BA NAKHAT. THIS BANAKHAT WAS FOUND TO BE NOTARIZED AND SIGNED BY TH E PARTIES OF BOTH SIDES. THE AO FOUND THAT THIS TRANSACTION WAS NOT INCORPORATED BY THE ASSESSEE WHILE FILING THE RETURN OF INCOME. CONSEQ UENTLY, THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF NOTICE DATED 09.07.2015 UNDER S.148 OF THE ACT. THE REASONS RECORDED UNDER S.148 (2) OF THE ACT WERE PROVIDED TO THE ASSESSEE ALONGWITH THE AFORESAID NO TICE WHICH READS AS UNDER: SHRI SHAILESHKUMAR SHIVRAMBHAI PATEL, RESIDING AT 23, NAVALPARK, RAMJI NAGAR ROAD, LAXMIPURA, PALANPUR, DISTRICT: BANASKAN THA HAD PURCHASED SOME PIECES OF LAND AT SUJANPUR, PATAN WITH FIVE CO -PARTNERS. THE TOTAL CONSIDERATION AGREED BETWEEN THE PARTIES WAS RS.6,1 1,24,000/-. AS PER BANAKHAT DATED 06.11.2010, THE AMOUNT OF RS.1.50 CR ORE WAS PAID BY THE PURCHASERS TO THE SELLER. THE SALE DEEDS OF THESE LANDS WERE EXECUTED IN F.Y.2011-12. ON INQUIRY, THE INFORMATION FOUND TO BE TRUE. UNDISCLOSED INVESTMENT IS ASSESSABLE TO TAX UNDER CHAPTER VI OF I.T. ACT (SECTION 68 TO 69D). ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 4 - 2. I HAVE THEREFORE, REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX EXCEEDING RS.1,22,24,800/- HAS ESCAPED ASSESSMENT F OR A.Y. 2012-13 AND INTEND TO REASSESS SUCH INCOME AND ALSO ANY OTHER I NCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO THE NOTICE SUBSEQUENTLY IN THE COURSE OF PROCEEDINGS UNDER THI S SECTION. 6. THE OBJECTIONS RAISED THEREUPON BY THE ASSESSEE WERE FOUND TO BE WITHOUT ANY MERIT BY THE AO. 7. THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS FAI LED TO DISCHARGE ONUS TO NEGATE COGENT EVIDENCE FOUND IN THE FORM OF BANAKHAT/ AGREEMENT TO SALE (EXECUTED BY THE ASSESSEE ALONGWI TH OTHER CO- OWNERS) AS A FUTILE AND HOLLOW DOCUMENT. THE AO TO OK NOTE OF PAYMENTS MADE IN CASH TO UNMASK THE CLAIM OF THE AS SESSEE THAT SUCH BANAKHAT IS ONLY A TOKEN AND SYMBOLIC DOCUMENT. TH E AO ACCORDINGLY HELD THAT SOURCE OF PAYMENT OF TOTAL CO NSIDERATION AS PER BANAKHAT REMAINS UNEXPLAINED. THE AO ACCORDINGLY A DDED RS.1,22,24,800/- BEING PROPORTIONATE SHARE OF THE A SSESSEE AS A CO- OWNER TOWARDS UNDISCLOSED SOURCE OF PAYMENT OF CONS IDERATION TO THE TOTAL INCOME OF THE ASSESSEE. 8. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) TOOK NOTE OF THE DETAILED WRITTEN SUBMIS SIONS FILED BEFORE HIM BUT HOWEVER WAS NOT IMPRESSED WITH THE SUBMISSI ONS ADVANCED ON BEHALF OF THE ASSESSEE. THE CIT(A) REJECTED THE AP PEAL OF THE ASSESSEE ON BOTH COUNTS NAMELY ALLEGED LACK OF JURISDICTION UNDER S.147 OF THE ACT AS WELL AS ON MERITS. THE RELEVANT OPERATIVE P ARA OF THE ORDER OF THE CIT(A) IS REPRODUCED HEREUNDER FOR READY REFERE NCE: DECISION : 5. THE SUBMISSION MADE BY THE APPELLANT AND THE ASS ESSMENT ORDER HAVE BEEN CONSIDERED CAREFULLY. FIRST GROUND OF APPEAL IS AGAINST THE RE- OPENING OF ASSESSMENT U/S 147 BY ISSUING NOTICE U/S 148 OF THE ACT. THE A.O. MENTIONED THE FACTS OF THE CASE IN THE ASSESSM ENT ORDER, WHICH ARE REPRODUCED BELOW: ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 5 - 'IN THIS CASE, THE RETURN OF INCOME WAS FILED BY TH E ASSESSEE ON 28.09.2012 DECLARING THE TOTAL INCOME AT RS. 251380/-. BY ORDE R U/S 143(3) DTD 27.08.2014, THE ASSESSED INCOME IN THE CASE WAS DEC IDED AT RS. 256380/-. UPON SHARING OF INFORMATION BY CENTRAL CIRCLE 2(4), IT WAS FOUND THAT THE ASSESSEE HAS PURCHASED SOME PIECE OF LAND AT SUJANP UR, PATAN WITH FIVE CO-PARTNERS AND CONSIDERATION AGREED BETWEEN PARTIE S WAS RS. 6,11,24,0007-. AS PER BANAKHAT DTD 06.11.2010, AMOU NT OF RS. 1.50 CRORE WAS PAID BY THE PURCHASER TO THE SELLER. THE SALE D EED OF THESE LANDS WERE EXECUTED IN F.Y. 2011-12. ON INQUIRY THE INFORMATIO N FOUND TO BE TRUE. AS THE INCOME CHARGEABLE TO TAX EXCEEDING RS. L,22,24, 800/-AS SHARE OF ASSESSEE ESCAPED ASSESSMENT, THE CASE WAS RE-OPENED U/S 147 OBTAINING APPROVAL FROM JOT, B.K. RANGE PALANPUR AND NOTICE U /S 148 ON 09.07.2015 DULY SERVED ON THE ASSESSEE WITH COPY OF REASON. THEREAFTER, SHOWCAUSE NOTICE U/S.!42(L) OF THE I.T. ACT WAS ISS UED ON 27.10.2015 REQUESTING THE ASSESSEE TO SUBMIT ITS REPLY OF SHOW CAUSE.' 6. THE APPELLANT CONTENDED THAT DURING THE ASSESSME NT PROCEEDINGS U/S 143(3), ALL THE DETAILS WERE SUBMITTED BEFORE THE A .O., THEREFORE, RE- OPENING OF THE ASSESSMENT IS NOT VALID. THE APPELLA NT CITED VARIOUS CASE- LAWS IN SUPPORT OF THIS CONTENTION. ON GOING THROUG H THE FACTS OF THE CASE AND THE SUBMISSION OF THE APPELLANT, IT IS FOUND TH AT THE TRANSACTION UNDER CONSIDERATION WAS NOT SHOWN BY THE APPELLANT IN THE RETURN FILED BY HIM. EVEN DURING THE ASSESSMENT PROCEEDINGS, THE APPELLA NT DID NOT DISCLOSE THIS TRANSACTION TO THE A.O. AS THE A.O. WAS NOT AW ARE ABOUT THIS TRANSACTION, NO QUESTION WAS ASKED ABOUT THIS TRANS ACTION FROM THE APPELLANT. THESE FACT SHOW THAT THIS TRANSACTION WA S NOT INVESTIGATED BY THE A.O. DURING THE ASSESSMENT PROCEEDINGS. AFTER P ASSING THE ASSESSMENT ORDER U/S 143(3), THE A.O. RECEIVED INFORMATION FRO M THE DCIT CENTRAL CIRCLE-2(4), THUS, THE A.O. HAD ADDITIONAL INFORMAT ION WITH HIM, HENCE, HE IS JUSTIFIED IN RE-OPENING OF ASSESSMENT U/S 147 IS SUING NOTICE U/S 148 OF THE ACT. THE CASE LAWS UPON WHICH APPELLANT RELIED ARE NOT RELEVANT TO THIS CASE, AS THE FACTS OF THE APPELLANTS CASE ARE NOT I DENTICAL TO THE FACTS OF THESE CASES. THEREFORE, THE CASE LAWS RELIED UPON B Y THE APPELLANT ARE NOT APPLICABLE TO THE APPELLANT CASE, KEEPING IN VIEW T HE ABOVE DISCUSSION, THIS GROUND OF APPEAL DESERVE TO BE DISMISSED, HENC E, IT IS DISMISSED. 7. SECOND AND THIRD GROUND OF APPEAL IS AGAINST THE ADDITIONS OF RS.1,22,24,800/- MADE BY THE A.O. CONSIDERING THE I NVESTMENT OF THE APPELLANT IN A PLOT OF LAND AS UNEXPLAINED. THE BRI EF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH & SEIZURE ACTION O N 27.09.2012 AT THE PREMISES OF SHRI RAMESHBHAI B AGRAWAL GROUP OF CASE S, A 'BANAKHAT' DATED 06.11.2010 WAS FOUND & SEIZED. AS PER THIS 'B ANAKHAT', THE APPELLANT ALONG OTHER 4 PARTIES AGREED TO PURCHASE LAND (AGRICULTURE AND NON AGRICULTURE) AT VILLAGE SUJANPUR FROM ONE SHRI CHANDANKUMAR RAMANDAS POHANI. THE DETAILS OF LAND INCLUDING SURV EY NUMBERS & LOCATION IS MENTIONED CLEARLY IN THE 'BANAKHAT'. 7.1 THE CONSIDERATION OF THE SAID LAND WAS FIXED @ RS.148/-/ PER SQUARE FEET AND ACCORDINGLY, TOTAL CONSIDERATION OF THE LA ND UNDER CONSIDERATION COMES TO RS. 6,11,24,000/- THE APPELLANT'S SHARE IS RS. 1,22,24,800/- BEING PARTNER OF 1/5 SHARE IN THE TRANSACTION. AS P ER PARA 2 OF THE 'BANAKHAT', RS. 10 LAKH WAS PAID IN CASH BY THE BUY ERS OF THE LAND ON ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 6 - 30.09.2010 AND RS. 1,40,00,000/- PAID ON THE DATE O F REGISTRATION OF THE 'BANAKHAT' THUS, TOTAL AMOUNT PAID IN CASH IS RS. 1 ,50,00,000/- FOR PURCHASE OF THIS LAND. THIS BANAKHAT IS NOTARIZED A ND SIGNED BY THE PARTIES OF BOTH SIDES. AS THIS TRANSACTION HAS NOT BEEN SHOWN BY THE APPELLANT IN THE RETURN FILED, THE A.O. MADE THE AD DITIONS OF RS. 1,22,24,800/- (SHARE OF THE APPELLANT) IN THE HANDS OF THE APPELLANT AS HIS UNEXPLAINED INVESTMENT IN THIS LAND. 7.2 THE APPELLANT CONFIRMED ALL THE FACTS MENTIONED IN THE 'BANAKHAT' AS MENTIONED IN PARA 7 OF THE SUBMISSION DATED 27.0 8.2016. BUT HE CONTENDED THAT THE VENDOR SHRI CHANDANKUMAR RAMANDA S POHANI HAD 'BANAKHAT' RIGHTS FROM ONE SHRI ARVINDBHAI MODI AND THE VENDOR HAS NOT ACQUIRED THE RIGHTS OF ACTUAL PURCHASE OF THE SAID LAND BY VALID PURCHASE DEED. THE APPELLANT FURTHER CONTENDED THAT THE POSS ESSION OF THE LAND IS TO BE GIVEN ON FULL & FINAL PAYMENT ON EXECUTION OF RE GISTERED SALE DEED. THE APPELLANT ALSO CONTENDED THAT IT IS MENTIONED ON PA GE NO. 6 OF THE 'BANAKHAT' THAT THE 'BANAKHAT' IS MADE TO PURCHASE THE LAND TO EARN COMMISSION. THUS, THE APPELLANT REQUESTED THAT THE FULL FACTS OF THE 'BANAKHAT' HAVE NOT BEEN CONSIDERED BY THE A.O. THE REFORE, ADDITION MADE BY THE A.O. SHOULD BE DELETED. 7.3 THE FACTS OF THE CASE AS NARRATED ABOVE AND THE SUBMISSIONS OF THE APPELLANT HAS BEEN CAREFULLY CONSIDERED. THERE IS N O DISPUTE ABOUT THE FACTS MENTIONED ABOVE ABOUT THE LAND CONSIDERATION AND OTHER FACTS AS MENTIONED IN 'BANAKHAT'. THE APPELLANT'S CONTENTION S IS THAT THE VENDOR SHRI CHANDANKUMAR RAMANDAS POHANI HAS ONLY 'BANAKHA T' RIGHTS FROM ON SHRI ARVINDBHAI MODI AND SELLER HAS NOT ACQUIRED OW NERSHIP RIGHTS. THIS CONTENTION OF THE APPELLANT IS NOT RELEVANT TO THIS TRANSACTION BECAUSE IT IS COMMON PRACTICE IN LAND TRANSACTIONS THAT 'BANAKHAT S' ARE MADE BY THE MIDDLEMEN/INVESTORS. AFTER 'BANAKHAT' IS MADE, THE BUYER SHOWN IN 'BANAKHAT' SEARCH FOR FURTHER BUYER OF THE LAND. ON ACTUAL SALE, SUCH LANDS ARE TRANSFERRED DIRECTLY FROM OWNER OF THE LA ND TO ACTUAL BUYER OF THE LAND AND SALE DEED IS MADE IN THE NAMES OF ONLY THESE TWO PARTIES. THE PERSONS WHO ARE INVESTORS/MIDDLEMEN, ENTERED INTO T RANSACTIONS BY WAY OF MAKING 'BANAKHAT' DOCUMENTS TAKE AWAY THE PROFIT BU T THEIR NAME NOWHERE APPEARS IN SALE DEED. SUCH 'BANAKHAT' ARE N ORMALLY FOUND DURING THE COURSE OF SURPRISE ACTION LIKE SURVEYS/SEARCHES BY THE DEPARTMENT. THE SAME HAPPENED IN THIS CASE ALSO. THE LAND WAS DIREC TLY TRANSFERRED FROM LAND OWNER TO THE ACTUAL BUYER SHRI RAMESH B. AGRAW AL. THUS, THIS CONTENTIONS OF THE APPELLANT THAT OTHER PARTY OF 'B ANAKHAT' SHRI CHANDANKUMAR RAMANDAS POHANI DID NOT HAVE OWNERSHIP RIGHT OVER THE SAID LAND IS OF NO HELP TO THE APPELLANT, HENCE IT IS REJECTED. 7.4 THE ANOTHER CONTENTION IS THAT POSSESSION OF LAND WAS TO BE GIVEN IN FUTURE ON MAKING FULL PAYMENTS. THE POSSESSION O F THE LAND IS NOT RELEVANT ISSUE. THE ISSUE UNDER CONSIDERATION IS TH E INVESTMENT MADE IN THE ASSET, WHICH STANDS UNEXPLAINED. THESE FACTS OF THE INVESTMENT HAVE NOT BEEN DISPUTED BY THE APPELLANT. THUS, THIS CONT ENTION IS ALSO NOT FOUND ACCEPTABLE, HENCE IT IS REJECTED . 7.5 THE NEXT CONTENTION IS THAT IT IS CLEARLY MENTIONED IN THE 'BANAKHAT' THAT THIS 'BANAKHAT' IS MADE TO EARN COM MISSION ON THIS TRANSACTION. THE APPELLANT STATED THAT THE LAND WAS ULTIMATELY PURCHASED ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 7 - BY SHRI RAMESH B. AGRAWAL AND IN THE SALE DEED, NAM E OF THE APPELLANT IS NOT MENTIONED AS CONFORMING PARTY. THESE FACTS SHOW THAT THE APPELLANT DID NOT MAKE PAYMENT, FOR WHICH ADDITIONS HAVE BEEN MADE. THE CONTENTION OF THE APPELLANT IS FOUND MISLEADING FOR THE REASON THAT THE SAID 'BANAKHAT' HAS BEEN FOUND AT THE RESIDENCE OF SHRI RAMESH B. AGRAWAL. IF THE APPELLANT HAS NO FINANCIAL RELATION WITH SHRI RAMESH B. AGRAWAL, WHY THE 'BANAKHAT' WAS KEPT AT HIS PLACE, WHO ULTIMATELY BOUGHT THE LAND. THESE FACTS PROVE THAT AT THE FIRST STAGE , THE LAND WAS PURCHASED BY THE APPELLANT WITH 4 OTHER PARTNERS. THESE FIVE PERSONS MADE INVESTMENT IN THE SAID LAND, WHICH IS CONFIRMED BY THE 'BANAKHAT' AND HAS NOT BEEN DISPUTED BY THE APPELLANT. THIS LAND WAS L ATER ON SOLD TO SHRI RAMESH B. AGRAWAL AND SALE DEED WAS DIRECTLY MADE I N THE NAME OF VENDOR AND SHRI RAMESH B. AGRAWAL. IN THE INTERVENING TIME , THE APPELLANT MADE INVESTMENT IN THE SAID LAND. SUCH MODUS-OPERANDIE I S NORMAL IN LAND DEALS. THIS METHOD IS ADOPTED TO AVOID PAYMENT OF S TAMP DUTY ON MULTIPLE PURCHASE SALE OF THE SAME LAND. THE APPELLANT'S CON TENTION THAT THE INVESTMENT WAS MADE TO EARN COMMISSION IS ALSO OF N O HELP TO HIM BECAUSE IT IS NOT MENTIONED IN 'BANAKHAT' THAT THE CASH OF RS. 1.5 CRORE PAID DOES NOT BELONG TO THE APPELLANT AND IT HAS BEEN FINANCE D BY SOMEONE ELSE. THE PURPOSE OF INVESTMENT HAS NO RELEVANCE WEATHER IT I S FOR EARNING PROFIT FOR COMMISSION. ONLY QUANTUM OF INVESTMENT IS RELEVANT FOR INCOME TAX PURPOSES. THEREFORE, THESE CONTENTIONS OF THE APPEL LANT ARE ALSO FOUND NOT ACCEPTABLE, HENCE, REJECTED . 8. KEEPING IN VIEW THE DISCUSSION ABOVE, THE ADDITI ONS MADE BY THE A.O. ARE FOUND JUSTIFIED, HENCE CONFIRMED . THIS GROUND OF APPEAL DISMISSED. THE CIT(A) ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSEE. 9. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 10. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET A DVERTED OUR ATTENTION TO THE ADDITIONAL GROUNDS OF APPEAL FILED ON TWO OCCASIONS BEFORE THE TRIBUNAL AND SUBMITTED THAT THE ADDITION AL GROUNDS SO RAISED SEEKS TO CHALLENGE THE VERY JURISDICTION OF THE AO TO INITIATE PROCEEDINGS UNDER S.147 OF THE ACT AND CONSEQUENT A SSESSMENT ORDER FRAMED UNDER S.147 OF THE ACT IS UNDER CHALLENGE FO R WHICH RELEVANT FACTS ARE AVAILABLE ON RECORD. THE LEARNED AR ACCO RDINGLY URGED FOR ADMISSION AS WELL FOR GRANTING PRIMACY TO ADDITIONA L GROUNDS IN THE MATTER OF HEARING. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 8 - 10.1 THE LEARNED AR FIRSTLY ADVERTED OUR ATTENTION TO THE ADDITIONAL GROUNDS OF APPEAL VIDE APPLICATION DATED 03.04.2018 AND CONTENDED THAT THE WHOLE BASIS OF ADDITION OF RS.1,22,24,800/ - IS BANAKHAT DATED 30.09.2010 AND THE PAYMENT OF RS.1,50,00,000/- MADE TO THE PURPORTED SELLER BY THE ASSESSEE ALONGWITH OTHER CO-OWNERS. THE ALLEGED PAYMENT FALLS IN A DIFFERENT ASSESSMENT YEAR I.E. A Y 2011-12. THEREFORE, THE TRANSACTIONS INVOLVED, IF ANY, DO NO T HAVE ANY CONNECTION OR BEARING WITH ASSESSMENT YEAR 2012-13 WHICH WAS WRONGLY RE-OPENED BY THE AO. THE LEARNED AR THUS S UBMITTED THAT ON THIS GROUND ALONE, THE USURPATION OF JURISDICTION U NDER S.147 OF THE ACT BY AO REQUIRES TO BE SET ASIDE AND CONSEQUENT RE-AS SESSMENT ORDER REQUIRES TO BE QUASHED. 10.2 THE LEARNED AR THEREAFTER ADVERTED TO ANOTHER ADDITIONAL GROUND RAISED BEFORE THE TRIBUNAL VIDE SUBSEQUENT APPLICAT ION DATED 05.06.2018 TO CONTEND THAT WHOLE BASIS OF INITIATIO N OF PROCEEDINGS UNDER S.147 OF THE ACT IS A BANAKHAT FOUND IN THE C OURSE OF SEARCH PROCEEDINGS UNDER S.132 OF THE ACT IN THE CASE OF A THIRD PARTY, NAMELY, RAMESHBHAI B. AGRAWAL GROUP. THEREFORE, TH E PROVISIONS OF THE SECTION 153A OF THE ACT WAS INITIATED IN CASE O F THIRD PARTY. CONSEQUENTLY WHERE A DOCUMENT IS FOUND TO BE BELONG ING TO THE ASSESSEE THEN THE JURISDICTION UNDER S.147 OF THE A CT IS OUSTED IN VIEW OF THE NON OBSTANTE CLAUSE UNDER S.153C OF THE ACT. IT WAS THUS CONTENDED WITH VEHEMENCE THAT PROCEEDINGS, IF ANY, CAN LIE IN THE CASE OF THE ASSESSEE UNDER S.153C ALONE IN EXCLUSION TO SECTION 147 OF THE ACT. THE RIGHT COURSE IN THE FACTS AND CIRCUMSTANC ES, AS ARGUED, COULD PROBABLY BE INVOCATION OF SECTION 153C OF THE ACT. ACCORDINGLY, THE LEARNED AR PROFESSED THAT THE WHOLE PROCEEDINGS UND ER S.147 IS VOID AB INITIO AND BAD IN LAW. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 9 - 10.3 ON MERITS, THE LEARNED AR POINTED OUT THAT THE PROPOSED SELLER OF THE LAND IN QUESTION AS PER BANAKHAT WAS NOT THE OW NER BUT WAS HAVING MERELY BANAKHAT RIGHTS. THE WHOLE PURPOSE OF BANAKH AT WAS EARNING COMMISSION BY THE PURCHASERS AND SELLERS NAMED IN T HE DOCUMENT. THE LEARNED AR VOCIFEROUSLY DENIED PAYMENT OF ANY CONSI DERATION AS A RESULT OF SUCH BANAKHAT AND CONTENDED THAT THE SELL ER HAS NOT RECEIVED ANY AMOUNT FROM THE ASSESSEE AND OTHER CO-OWNERS BE ING THE PROPOSED PURCHASERS. THE LEARNED AR HEAVILY RELIED UPON THE CONTENTS OF THE BANAKAHAT ON PAGE 6 THEREOF TO POINT OUT THAT THE E XECUTING PARTIES TO THE BANAKHAT NAMELY PARTY AGREEING TO SALE (POHANI CHANDANKUMAR RAMANDAS) AND INTENDED PURCHASERS (ASSESSEE & OTHER CO-OWNERS) WERE VERY WELL AWARE THAT THE BANAKHAT WAS NEVER MEANT T O BE FINALLY ADJUDICATED AS THE PURPORTED SELLERS HAD NO LEGAL R IGHT, TITLE OR INTEREST FOR EXECUTION OF SALE DEED. THE LEARNED AR EMPHASI ZED THAT SELLER MENTIONED IN THE BANAKHAT NOT BEING THE OWNER OF TH E LAND WAS NOT CAPABLE OF SELLING THE LAND AND THUS THE BANAKHAT W AS INTENDED ONLY TO EARN POSSIBLY MORE COMMISSION OR DALALI. THE LEARN ED AR FURTHER CONTENDED THAT WHILE AS PER BANAKHAT, SHRI CHANDANK UMAR RAMANDAS POHANI WAS THE INTENDING SELLER WHO ACQUIRED ONLY B ANAKHAT RIGHTS FROM ONE SHRI ARVINDBHAI MODI, THE ACTUAL SALE CARR IED OUT SUBSEQUENTLY DO NOT MAKE ANY REFERENCE TO THE AFORE SAID SELLER OR THE ASSESSEE AS PURCHASER. THE FINAL SALE DEED IS BETW EEN THE REAL OWNERS AND RAMESHBHAI B. AGRAWAL GROUP. THIS ALSO SUGGEST S THAT THE BANAKHAT HAS NOT BEEN ACTED UPON IN ANY MANNER. TH E LEARNED AR NEXT POINTED OUT THAT THE CASH TRANSACTIONS AGGREGA TING TO RS.1.5 CRORE AS MENTIONED IN BANAKHAT DID NOT REALLY OCCUR AT AL L AND WITHOUT PREJUDICE RELATES TO FY 2010-11 AND THUS TO AY 2011 -12. THE ADDITION MADE IN THE HANDS OF ASSESSEE IN AY 2012-13 IS THUS NOT WITHIN THE AUTHORITY OF LAW. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 10 - 10.4 THE LEARNED AR IN CONCLUSION SUBMITTED THAT TH E ADDITION REQUIRES TO BE DELETED BOTH ON ACCOUNT OF INCURABLE DEFECT IN ASSUMING JURISDICTION AS WELL AS ON MERITS AND ACCORDINGLY U RGED FOR SUITABLE RELIEF AS PRAYED. 11. THE LEARNED DR, ON THE OTHER HAND, STRONGLY REL IED UPON THE ORDER OF THE CIT(A). ELABORATING FURTHER, THE LEAR NED DR SUBMITTED THAT A TANGIBLE DOCUMENT OF INCRIMINATING NATURE WA S FOUND AT THE PREMISES OF THE SEARCHED PERSON (SHRI RAMESHBHAI B. AGRAWAL) WHEREBY THE CLANDESTINE TRANSACTIONS OF STAGGERING AMOUNT WAS DISCOVERED WHICH WERE NOT FOUND RECORDED IN THE BOO KS OF THE ASSESSEE AT ALL. THE FACTS TOWARDS EXECUTION OF BANAKHAT AN D CONSIDERATION EXCHANGED AS PER BANAKHAT WAS NOT DISCLOSED IN THE RETURN OF INCOME AS WELL AS IN THE ASSESSMENT PROCEEDINGS COMPLETED UNDER S.143(3) OF THE ACT EARLIER. THUS, FACTS IN THE KNOWLEDGE OF A SSESSEE WERE NEITHER DISCLOSED FULLY OR TRULY FOR THE PURPOSES OF ASSESS MENT. WHEN THE FACTS UNEARTHING UNDISCLOSED TRANSACTIONS CAME TO T HE NOTICE OF THE DEPARTMENT AND INFORMED TO THE AO, THE AO WAS WITHI N ITS RIGHT TO ASSESS THE ESCAPED INCOME UNDER S.147 OF THE ACT. 11.1 THE LEARNED DR NEXT SUBMITTED THAT THE PLEA PA DDLED ON BEHALF OF THE ASSESSEE THAT THE TRANSACTIONS BELONGS TO PR EVIOUS ASSESSMENT YEAR (2011-12) AND THUS, CANNOT BE ASSESSED IN AY 2 012-13 IS ALSO WITHOUT ANY SUBSTANCE. THE TOTAL CONSIDERATION INV OLVED IS IN THE VICINITY OF RS.6.11 CRORE. THE SALE DEEDS FOR THES E LANDS WERE EXECUTED IN FY 2011-12 NOTWITHSTANDING EXECUTION OF BANAKHAT IN FY 2010-11. THEREFORE, THE ONUS LIES ON THE ASSESSEE TO SQUARELY PROVE THAT THE WHOLE OF LAND DEAL TRANSACTIONS BELONG TO SOME OTHER ASSESSMENT YEARS. THE LEARNED DR POINTED OUT THAT IN VIEW OF THE SALE DEEDS EXECUTED IN AY 2012-13, THE PRESUMPTION WOULD NATURALLY ARISE ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 11 - AGAINST THE ASSESSEE FOR TAXABLE EVENT FALLING IN A SSESSMENT YEAR 2012- 13. 11.2 THE LEARNED DR ALSO INVITED A REFERENCE TO THE ENABLING PROVISIONS OF SECTION 150(1) R.W.S. 153(6) OF THE A CT FOR TAXABILITY OF THE UNDISCLOSED INCOME EVENTUALLY IN ONE YEAR OR AN OTHER YEAR. 11.3 THE LEARNED DR POINTED OUT THAT THE AO IS REQU IRED TO ONLY ARRIVE AT PRIMA FACIE BELIEF TOWARDS ESCAPEMENT OF INCOME AT THE TIME OF INITIATION OF PROCEEDINGS UNDER S.147 OF THE ACT . THE TANGIBLE MATERIAL IN THE FORM OF BANAKHAT AND FINAL SALE DEE D PERMITS THE AO TO FORM SUCH PRIMA FACIE BELIEF OF ESCAPEMENT BASED ON TOTAL SALE CONSIDERATION INVOLVED. THE LEARNED DR POINTED OUT THAT ONCE THE ACTION UNDER S.147 OF THE ACT AND THE RE-ASSESSMENT HAS BEEN RIGHTLY COMMENCED BASED ON PRIMA FACIE SATISFACTION, IT WAS ALWAYS OPEN TO THE ASSESSEE TO DISLODGE SUCH FORMATION OF BELIEF O N MERITS IN THE COURSE OF THE RE-ASSESSMENT PROCEEDINGS. IT WAS SU BMITTED THAT THE FACTUM OF ESCAPEMENT OF INCOME IS NOT REQUIRED TO B E CONCLUSIVELY PROVED AT THE TIME OF ISSUANCE OF NOTICE UNDER S.14 8 OF THE ACT. IT WAS SUBMITTED THAT THERE IS NO PROVISION FOR MAKING ANY INQUIRY ON THE FACTS AVAILABLE BEFORE THE AO PRIOR TO INITIATION O F ACTION UNDER S.148 OF THE ACT. THE LEARNED DR THUS SUBMITTED THAT TH E ADDITIONAL GROUND FILED BY THE ASSESSEE VIDE APPLICATION DATED 03.04. 2018 IS BEREFT OF ANY MERIT AND THUS URGED FOR ITS DISMISSAL. 11.4 ADVERTING TO ANOTHER ADDITIONAL GROUND OF APPE AL SEEKING TO CHALLENGE INITIATION OF ACTION UNDER S.147 R.W.S. 1 48 IN THE CASE OF SEARCH ASSESSMENT, THE LEARNED DR EMPHASIZED ON THE FACT THAT THE BANAKHAT AND SALE DEEDS DISCOVERED AT THE TIME OF S EARCH CLEARLY INDICATED INVOLVEMENT OF THE ASSESSEE IN UNREPORTED CASH TRANSACTIONS BUT HOWEVER SUCH DOCUMENTS MERELY PERTAINED TO TH E ASSESSEE IN ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 12 - DISTINCTION TO THE EXPRESSION BELONGING TO THE AS SESSEE IN THE LIGHT OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PEPSICO INDIA HOLDINGS PRIVATE LIMITED VS. ACIT [2015] 370 ITR 295 (DELHI) AND THE DECISION OF THE CO-ORDINATE BENCH IN THE CA SE OF SMT. S. SIVAGAMASUNDARI VS. ITO IN ITA NO.519/MDS/2015 ORDE R DATED 12.02.2016. THEREFORE, NEITHER THE AO OF THE SEAR CHED PERSON FORMED SATISFACTION AS CONTEMPLATED UNDER S.153C OF THE AC T NOR HE COULD HAVE. THUS, ON FACTS WHERE PROCEEDINGS UNDER S.153 C HAS NOT BEEN INITIATED AT THE FIRST PLACE, THE SACROSANCT RIGHTS OF THE AO OF THE ASSESSEE UNDER S.147 OF THE ACT WERE FULLY INTACT A ND COULD NEITHER BE CURBED NOR SUPERSEDED BY THE NON OBSTANTE CLAUSE OF SECTION 153C OF THE ACT. THE LEARNED DR NEXT CONTENDED THAT THE ON US IS QUITE HEAVY UPON THE ASSESSEE TO DISPROVE THE CONTENTS OF THE D OCUMENTS EXECUTED BY THE ASSESSEE VOLUNTARILY. IN VIEW OF THE AGREEM ENT TO SALE AND SALE DEED, THE PRESUMPTION OF UNDISCLOSED TRANSACTION IS OSTENSIBLY AGAINST THE ASSESSEE. 11.5 THE LEARNED DR REFERRED TO THE ORDERS OF THE A O AND CIT(A) TO BUTTRESS ITS PLEA THAT THE ASSESSEE HAS FAILED MISE RABLY IN DISLODGING THE TRUTHFULNESS OF THE TRANSACTIONS REFERRED TO IN THE BANAKHAT AND SALE DEED. THE LEARNED DR POINTED OUT THAT THE REA L QUESTION IS INVOLVEMENT OF UNACCOUNTED CASH ON BEHALF OF THE AS SESSEE AND NOT AS TO WHETHER THE ASSESSEE HAS FINALLY ENDED UP ACQUIR ING THE PARCELS OF LAND AS MENTIONED IN THE AGREEMENT OR OTHERWISE. 11.6 THE LEARNED DR THUS SUBMITTED IN CONCLUSION TH AT THE REVENUE WAS PERFECTLY JUSTIFIED IN ASSESSING THE UNDISCLOSE D SOURCE OF INCOME IN THE HANDS OF THE ASSESSEE AS BORNE OUT FROM THE DOCUMENTARY EVIDENCES AND NO INTERFERENCE WITH THE ORDERS OF TH E AO AND CIT(A) IS CALLED FOR. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 13 - 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND MATERIAL RE FERRED TO AND RELIED UPON ON BEHALF OF THE ASSESSEE AS PER RULE 18(6) OF THE ITAT RULES, 1963 AND THE CASE LAWS CITED AT BAR. 12.1 THE PRECISE QUESTION THAT ARISES FOR OUR CONSI DERATION IS WHETHER IN THE GIVEN SET OF FACTS, IMPUGNED ADDITION OF RS. 1,22,24,800/- IN THE HANDS OF THE ASSESSEE ALLEGED TO BE PAID OUT OF UND ISCLOSED SOURCE TO THE PROPOSED SELLER OF THE LAND IN TERMS OF AGREEME NT TO SALE, IN THE CAPACITY OF A JOINT PURCHASER WILL COME WITHIN A SW EEP OF SECTION 147 OF THE ACT OR NOT, FOR THE PURPOSES OF ASSESSMENT O F ALLEGED INCOME ESCAPING ASSESSMENT. 12.2 TWO LEGAL QUESTIONS EMERGE IN THE FACTS OF THE CASE AS PER THE ADDITIONAL GROUNDS RAISED ON BEHALF OF THE ASSESSEE . THEREFORE, IT IS CONSIDERED EXPEDIENT TO FIRST DEAL WITH THESE LEGAL ISSUES. 13. FIRST AND FOREMOST, THE ASSESSEE SEEKS TO CHALL ENGE THE ISSUANCE OF NOTICE UNDER S.148 OF THE ACT CONCERNING AY 2012 -13 IN QUESTION ON THE GROUND THAT THE CASH PAYMENTS PURPORTEDLY MA DE UP TO THE DATE OF EXECUTION OF BANAKHAT PERTAINS TO PRECEDING ASSE SSMENT YEAR I.E. 2011-12. IT IS THUS THE CASE OF THE ASSESSEE THAT ACTION UNDER S.147 OF THE ACT CONCERNING ASSESSMENT YEAR IN QUESTION IS PRIMA FACIE WRONGFUL AND VITIATED BY NON APPLICATION OF MIND AN D CONSEQUENTLY DESERVES TO BE STRUCK DOWN. 13.1 TO BEGIN WITH, ON A READING OF REASONS RECORDE D UNDER S.148(2) OF THE ACT, WE NOTICE THAT THE AO FOUND THE TOTAL C ONSIDERATION OF LAND AS MENTIONED IN BANAKHAT TO BE RS.6,11,24,000/-. T HE AO FORMED BELIEF TOWARDS ESCAPEMENT OF CHARGEABLE INCOME TO T HE EXTENT OF 1/5 TH OF THE AFORESAID AMOUNT WHICH WORKED OUT TO RS.1,22 ,24,800/-. THUS, ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 14 - THE PLEA TOWARDS ESCAPEMENT OF CHARGEABLE INCOME WA S MADE BY THE AO WITH REFERENCE TO THE TOTAL SALE CONSIDERATION A ND WAS NOT RESTRICTED TO ONLY ADVANCE ALLEGEDLY PAID OF RS.1,5 0,00,000/- UP TO THE DATE OF EXECUTION OF AGREEMENT TO SALE (BANAKHAT). THEREFORE, SIMPLY BECAUSE A PART OF THE TRANSACTION HAS BEEN EXECUTED IN THE PRECEDING ASSESSMENT YEAR WILL NOT IN OUR CONSIDERED VIEW, RE STRAIN THE AO TO INVOKE THE PROVISIONS OF SECTION 147 OF THE ACT IN THE YEAR OF EXECUTION OF FINAL SALE DEED MORE PARTICULARLY WHEN THE AGREEMENT TO SALE ITSELF SPEAKS ABOUT THE PAYMENT OF REST OF THE AMOUNT AT THE TIME OF REGISTRATION OF FINAL SALE DEED IN RESPECT OF TH E SAID LAND WHICH FALLS IN AY 2012-13. 13.2 SECONDLY, SEEING IT FROM A DIFFERENT PERSPECTI VE, THE ASSESSEE IS ONLY ONE OF THE MANY JOINT PURCHASERS AS RECITED IN BANAKHAT AND HENCE IT IS QUITE PLAUSIBLE THAT THE SHARE OF PAYME NT ON PART OF THE ASSESSEE FALLS AT THE TIME OF EXECUTION OF SALE DEE D. IN THE ABSENCE OF ANY CLEAR STAND ON THE DATE OF PAYMENT MADE BY ASSE SSEE AND RATHER DENIAL OF PAYMENT AT ALL, THE AO IS WELL WITHIN ITS RIGHT TO INVOKE PROVISIONS OF SECTION 147/148 OF THE ACT WITH REFER ENCE TO THE YEAR IN WHICH FINAL SALE DEED HAS BEEN EXECUTED ALBEIT IN S OME OTHER PERSONS NAME. THE TANGIBLE INFORMATION AVAILABLE TO AO FOR FORMATION OF BELIEF IS NOT REQUIRED TO BE SUBJECTED TO SUFFICIE NCY TEST AS OBSERVED BY THE HONBLE SUPREME COURT IN THE CASE OF RAYMOND WOOLEN MILLS VS. ITO [1999] 236 ITR 34 (SC) AND ACIT VS. RAJESH JAVERI STOCK BROKERS PVT. LTD. [2007] 291 ITR 500 (SC). THE AGR EEMENT TO SALE (BANAKHAT) AND CONSEQUENT FINAL SALE DEED, IN OUR C ONSIDERED OPINION, PROVIDES SOUND BASIS FOR FORMATION OF BELIEF TOWARD S ESCAPEMENT OF INCOME TO A PERSON INSTRUCTED IN LAW. THE AO THUS HAS ACTED WITHIN THE BOUNDS OF LAW WHILE EXERCISING ITS POWER UNDER S.147 OF THE ACT. MERELY BECAUSE A PART OF THE TOTAL SALE CONSIDERATI ON FALL IN OTHER ASSESSMENT YEAR, THE ACTION OF THE AO CANNOT BE CUR TAILED TO DENY THE ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 15 - EXCHEQUER OF ITS RIGHTFUL DUES. NOTWITHSTANDING, T HE TECHNICAL DEFECT OF SUCH NATURE CAN BE CURED UNDER S.150(1) & 153(6) OF THE ACT AS RIGHTLY OBSERVED ON BEHALF OF THE REVENUE. 13.3 THUS, THE FIRST ADDITIONAL GROUND RAISED ON BE HALF OF THE ASSESSEE IS A DAMP SQUIB. THE ADDITIONAL GROUND ON THIS SCO RE IS THUS DISMISSED. 14. WE SHALL NOW ADDRESS OURSELVES TO THE SECOND LE GAL OBJECTION. ON BEHALF OF THE ASSESSEE, IT IS CONTENDED THAT IN VIEW OF OVER-RIDING PROVISIONS OF SECTION 153C OF THE ACT IN THE CASE O F SEARCH ASSESSMENT, THE ASSESSMENT PROCEEDINGS IN THE HANDS OF THE ASSESSEE ARE NOT AMENABLE TO JURISDICTION UNDER S.147/148 OF THE ACT AND THEREFORE, ENTIRE ASSESSMENT PROCEEDINGS ITSELF IS A NULLITY IN THE EYES OF LAW. 14.1 BEFORE WE PROCEED FOR DETERMINATION OF ISSUE, IT WOULD BE PERTINENT TO REFER TO THE PROVISIONS OF S. 153C AND ALSO S. 147 OF THE ACT, AS APPEARING IN THE STATUE AT THE RELEVANT TIM E, TO THE EXTENT AS MAY BE RELEVANT IN THE CONTEXT. 'ASSESSMENT OF INCOME OF ANY OTHER PERSON . - 153C. [(1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHE R THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCO UNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME O F SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A : ] [PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SE CTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 16 - OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISI TIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON.] ' [UNDERLINE IS OURS] *********** ' [ INCOME ESCAPING ASSESSMENT . 147. IF THE [ASSESSING] OFFICER [HAS REASON TO BELI EVE] THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 1 53, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SU BSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, OR RE COMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THI S SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASS ESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSE SSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLES S ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE T O MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUBSECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESS MENT YEAR: [PROVIDED FURTHER ------' 14.2 ON A BARE READING OF S. 153C NOTED ABOVE, IT I S SELF EVIDENT THAT THIS PROVISION GOVERNS ASSESSMENT OF INCOME OF A PE RSON OTHER THAN A PERSON IN WHOSE CASE SEARCH WAS INITIATED. 14.2.1 ALSO, THIS PROVISION ALONG WITH OTHER PROVIS IONS OF S. 153A TO 153D EXERTS AN OVERRIDING EFFECT OVER THE PROVIS IONS OF SECTIONS 139, 147, 148, 149, 151 AND 153 OF THE ACT SINCE TH ESE PROVISIONS CONTAIN NON OBSTANTE CLAUSE. SECONDLY, THE ASSESSME NT PROCEEDINGS UNDER S. 153C ARE FAR MORE ONEROUS QUA S. 147 IN TH E SENSE THAT PROCEEDINGS ARE INITIATED FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE YEAR IN WHICH SEARCH U/S. 132 IS INIT IATED OR REQUISITION IS MADE U/S.132A. THIRDLY, THE PROVISIONS OF SECTIO N 153C ARE ANALOGOUS TO SECTION 158BD OF THE ACT. THEREFORE, D ECISION OF THE APEX COURT IN THE CASE OF MANISH MAHESHWARI 289 ITR 341 SC WOULD ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 17 - ALSO APPLY WHERE ASSESSMENT IS TO BE MADE U/S. 153C . AS PER THE AFORESAID DECISION, THE PRECONDITION FOR INVOKING J URISDICTION FOR ISSUE OF NOTICE U/S. 153C IS THAT THE AO MUST 'RECORD SAT ISFACTION' AS TO THE SEIZED MATERIAL BELONGS TO THE THIRD PERSON I.E. ASSESSEE. 14.2.2 UNDER S. 153C AS APPLICABLE TO THE RELEVANT ASSESSMENT YEAR IN APPEAL, WHERE THE ASSESSING OFFICER OF THE SEARCHED PERSON IS SATISFIED THAT ANY BOOKS OF ACCOUNT, OR DOCUMENTS S EIZED OR REQUISITIONED 'BELONG TO' OR BELONGS TO ANY PERSON, OTHER THAN THE PERSON REFERRED TO IN SECTION 153 A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL B E HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON FOR SUCH JURISDICTIONAL ASSESSING OFFICER TO COMPLETE THE AS SESSMENT. THIS POSITION HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. CALCUTTA KNITWEARS 338 ITR 239 (SC). 14.2.3 THEREFORE, QUESTION POSED WHETHER, IN VIEW O F THE PHRASEOLOGY EMPLOYED IN THE SECTION, IF THE BOOKS O F ACCOUNT BELONG TO THE PERSON SEARCHED BUT ENTRY IN SUCH BOOKS REFLECT THE UNDISCLOSED INCOME OF THE THIRD PARTY THEN, WHETHER THE AO CAN ASSUME JURISDICTION UNDER S.153C TO ASSESS SUCH UNDISCLOSE D INCOME OR NOT. THE EXPRESSION BELONGS TO WAS A SUBJECT MATTER OF DEBATE. THE POINT IN ISSUE WAS EXAMINED BY HONBLE DELHI HIGH COURT I N PEPSICO HOLDINGS PVT. LTD. VS. ACIT 370 ITR 295 (DEL.). IT OBSERVED IN ESSENCE THAT EXPRESSION BELONGING TO ASSESSEE IMPLI ES SOMETHING MORE THAN IDEA OF CASUAL ASSOCIATION. IT WAS OBSERVED B Y THE HON'BLE DELHI HIGH COURT THAT S. 153C CANNOT BE INVOKED UNLESS TH E AO IS SATISFIED FOR COGENT REASONS THAT THE SEIZED DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON. IT WAS OBSERVED THAT FINDING OF PH OTOCOPIES WITH THE SEARCHED PERSON DOES NOT NECESSARILY MEAN AND IMPLY THAT THEY 'BELONG' TO THE PERSON HOLDING THE ORIGINALS. THE D ISTINCTION BETWEEN ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 18 - 'BELONGS TO' AND 'RELATES TO' OR 'REFERS TO' MUST B E BORNE IN MIND BY THE AO. THE ASSESSING OFFICERS SHOULD NOT CONFUSE T HE EXPRESSION 'BELONGS TO' WITH THE EXPRESSIONS 'RELATES TO' OR ' REFERS TO'. THE HON'BLE COURT WENT ON THE EXPLAIN THE PURPORT OF TH E EXPRESSION BY GIVING ILLUSTRATION THAT A REGISTERED SALE DEED, FO R EXAMPLE, 'BELONGS TO' THE PURCHASER OF THE PROPERTY ALTHOUGH IT OBVIO USLY 'RELATES TO' OR 'REFERS TO' THE VENDOR. IN THIS EXAMPLE IF THE PURC HASER'S PREMISES ARE SEARCHED AND THE REGISTERED SALE DEED IS SEIZED, IT CANNOT BE SAID THAT IT 'BELONGS TO' THE VENDOR JUST BECAUSE HIS NAME IS ME NTIONED IN THE DOCUMENT. IN THE CONVERSE CASE IF THE VENDOR'S PREM ISES ARE SEARCHED AND A COPY OF THE SALE DEED IS SEIZED, IT CANNOT BE SAID THAT THE SAID COPY 'BELONGS TO' THE PURCHASER JUST BECAUSE IT REF ERS TO HIM AND HE (THE PURCHASER) HOLDS THE ORIGINAL SALE DEED. IN TH IS LIGHT, IT IS OBVIOUS THAT NONE OF THE THREE SETS OF DOCUMENTS - COPIES O F PREFERENCE SHARES, UNSIGNED LEAVES OF CHEQUE BOOKS AND THE COPY OF THE SUPPLY AND LOAN AGREEMENT - CAN BE SAID TO 'BELONG TO' THE PETITION ER. 14.2.4 WE ALSO NOTICE THAT THE LEGISLATURE APPARENT LY TOOK NOTE OF THE RESTRICTED SCOPE OF EXPRESSION 'BELONG TO' EMPL OYED IN S. 153C WHICH, TO SOME EXTENT, CURTAILED THE POWER OF THE D EPTT. TO INVOKE S. 153C OF THE ACT. THUS, SUITABLE LEGISLATIVE CHANGES WERE BROUGHT WITH EFFECT FROM 1-6-2015 TO RELAX THE IMPEDIMENT FOR IM PLEMENTATION OF THE SECTION 153C. AS NOTED EARLIER, AS PER EXISTING PROVISIONS, SECTION 153C COULD BE INVOKED AGAINST SUCH OTHER PERSON ONL Y WHEN BOOKS OF ACCOUNT, ETC., BELONGED TO HIM AND NOT OTHERWISE. H OWEVER, TO ADDRESS THE POINT, SECTION 153C HAS BEEN AMENDED TO WIDEN T HE POWERS OF THE ASSESSING OFFICER OF THE SEARCHED PERSON TO HAND OV ER THE BOOKS OF ACCOUNT OR DOCUMENTS TO THE JURISDICTIONAL ASSESSIN G OFFICER EVEN IF THESE MERELY PERTAINS OR PERTAIN TO, OR ANY INFOR MATION CONTAINED THEREIN MERELY RELATES TO THE OTHER PERSON. THUS, A FTER THE LEGISLATIVE AMENDMENT, NOW THE DEPPT. IS WELL EQUIPPED TO EXERC ISE JURISDICTION ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 19 - UNDER S. 153C EVEN IF THE DOCUMENT SEIZED MERELY PE RTAINS OR PERTAIN TO OR ANY INFORMATION CONTAINED THEREIN RELATES TO THE OTHER PERSON WITHOUT THE NECESSITY OF THESE DOCUMENTS ETC. TO BE BELONGING TO SUCH OTHER PERSONS. THUS, IN THE LIGHT OF THE JUDICIAL P RECEDENT OF THE HON'BLE DELHI HIGH COURT AND FURTHER IN VIEW OF THE SUBSEQUENT LEGISLATIVE AMENDMENT, THE DIFFERENCE BETWEEN THE E XPRESSION 'BELONG TO' AND 'PERTAIN TO' / 'RELATE TO' ARE VISIBLY CLEA R. SIMILAR LEGAL POSITION HAS BEEN ENUNCIATED BY THE HONBLE GUJARAT HIGH COU RT IN THE CASE OF KAMLESHBHAI DHARAMSHIBHAI PATEL VS. CIT 263 ITR 362 (GUJ). HENCE, IN THE LIGHT OF ABOVE DISCUSSION, WE ARE OF THE VIE W THAT THE LOOSE PAPER AND OTHER DOCUMENTS AND DIARIES ETC. FOUND FR OM THE POSSESSION OF THE SEARCHED PERSON CANNOT BE SAID TO BE BELONGI NG TO THE ASSESSEE OR OTHER THIRD PARTIES MERELY BECAUSE TRANSACTION N OTED THEREIN RELATE TO OR PERTAIN TO ASSESSEE AND/OR SUCH OTHER PERSONS . THIS VIEW IS ALSO FORTIFIED BY EXPRESS PROVISION OF S. 132(4A) OF THE ACT WHEREBY THE PRESUMPTION OF DOCUMENTS ETC. FOUND IN COURSE OF SE ARCH WEIGHS TOWARDS SEARCHED PERSON. 14.3 AS NOTED, POST THE LEGISLATIVE AMENDMENT, ANY BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED REQUIRES TO BE MERELY PERTAIN TO OR RELATE TO THE ASSESSEE IN CONTRAST TO THE EARLIE R POSITION WHERE SUCH BOOKS/DOCUMENTS SEIZED ETC. MUST NECESSARILY BELONG TO THE THIRD PERSON I.E. ASSESSEE HEREIN. THUS, FOR THE ASSESSM ENT YEAR 2012-13 IN QUESTION, WHICH IS GOVERNED BY PRE-AMENDED LAW OF S ECTION 153C OF THE ACT, THE PROVISIONS OF SECTION 153C OF THE ACT COULD NOT BE INVOKED UNLESS DOCUMENT SEIZED ETC. BELONGS TO A PERSON (ASSESSEE HEREIN) OTHER THAN THE PERSON SEARCHED. THUS, WHIL E THE CASE OF THE ASSESSEE CAN BE REOPENED WHERE THE DOCUMENT SEIZED IN THE CASE OF SEARCHED PERSON GIVES RISE TO REASONABLE INTERFEREN CE OF ESCAPEMENT OF INCOME IN THE HANDS OF THIRD PERSON I.E. ASSESSEE, SAME IS NOT TRUE FOR INVOKING SECTION 153C OF THE ACT IN THE HANDS OF TH E ASSESSEE UNLESS ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 20 - THE DOCUMENT SEIZED OR REQUISITIONED ACTUALLY BELON G TO THE ASSESSEE. THUS, THE INDEPENDENT POWER AVAILABLE TO AO OF THE THIRD PERSON UNDER S.147 OF THE ACT CANNOT BE ARTIFICIALLY CURTAILED I N SUCH A SITUATION. 14.4 PROVISIONS OF SECTION 153C AND SECTION 147 CAR RY MANY DISTINGUISHING FEATURES NOTWITHSTANDING THE ULTIMAT E EFFECT OF REDETERMINATION OF TRUE INCOME UNDER BOTH PROVISION S. A CONJOINT READING OF S. 153C & S. 147 WOULD SHOW THAT THE NAT URE OF POWER OF REOPENING ASSESSMENT UNDER SECTION 147 IS MATERIALL Y DIFFERENT FROM THAT OF THE POWER CONFERRED UNDER S.153C. SECTION 1 53 A / S.153C ARE SPECIAL PROVISIONS DEALING EXCLUSIVELY SEARCH CASES WHILE S. 147 IS APPLICABLE TO ALL TYPES OF ESCAPEMENT INCLUDING INC OME UNEARTHED IN SEARCH PROCEEDINGS. THE POWER AVAILABLE UNDER S. 15 3C DOES NOT RENDER PROVISION OF S. 147 REPUGNANT PER SE . THE REMEDY AVAILABLE UNDER S. 153C AND S. 147 ARE ALSO NOT INCONSISTENT. RELEVANT HERE TO NOTE THE OBSERVATION OF THE HON'BLE BOMBAY HIGH COU RT IN THE CASE OF SHIRISH MADHUKAR DALVI 287 ITR 242 (BOM.); SECTION 148 IS A SUBSTANTIVE PROVISION WHEREAS SECTION 158BC IS A PR OCEDURAL SECTION. BOTH SECTIONS DEFINITELY STAND ON DIFFERENT FOOTING S. SECTION 158BC AND S. 153C ARE ANALOGOUS. THE KEY VARIANCES ARE FI RSTLY, NON OBSTANTE CLAUSE IN S. 153C GRANTS NEARLY SWEEPING POWERS TO REVENUE WITH A LIBERTY TO SUMMARILY REOPEN THE ASSESSMENT OF 6 YEA RS WITHOUT OBSERVING STRINGENT AND VALUABLE SAFEGUARD OF 'REAS ON TO BELIEVE' SET OUT IN S. 147 OF THE ACT. PROVISIONS OF S. 153C THU S SOMEWHAT TONES DOWN THE RIGORS OF S. 147 IN FAVOUR OF THE REVENUE. SECONDLY, FOR USURPING JURISDICTION UNDER S. 147, THE DOCUMENTS / PAPERS FOUND IN THE COURSE OF SEARCH NEED NOT BELONG TO THE PERSO N OTHER THAN PERSON SEARCHED. MERE-DEMONSTRABLE CONNECTION OR LIVE LINK TO SUCH THIRD PERSON REVEALING ESCAPEMENT OF INCOME IS ADEQUATE T O INVOKE REMEDY UNDER S. 147. THIRDLY AND SIGNIFICANTLY, OPERATION OF SECTION 153C IS DEPENDENT ON THE 'SATISFACTION' ARRIVED BY THE AO O F THE SEARCHED ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 21 - PERSON AT THE FIRST INSTANCE AND NOT THAT OF AO OF THE PERSON WHOSE INCOME IS FOUND TO HAVE ESCAPED ASSESSMENT. IN THE ABSENCE OF SUCH 'SATISFACTION' ARRIVED BY THE AO OF THE SEARCHED PE RSON, THE AO OF THE THIRD PARTY/ASSESSEE HEREIN WOULD BE RENDERED POWE RLESS TO ASSESS TRUE INCOME UNDER S. 153C. IN CONTRAST, SECTION 14 7 CAN BE INVOKED BY THE AO OF THE ASSESSEE INDEPENDENTLY ON ARRIVING AT SATISFACTION OF ESCAPEMENT OF INCOME FOR A GIVEN ASSESSMENT YEAR RE GARDLESS OF SATISFACTION OF AO OF SEARCHED PERSON. THUS, IT IS SELF-EVIDENT THAT TWO SECTIONS OPERATE QUITE DIFFERENTLY. THE EFFECT OF NON OBSTANTE CLAUSE UNDER S. 153C IS THAT PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS SHALL ABATE. HENCE, S. 147 WILL BE REND ERED INOPERATIVE AND WILL GIVE WAY TO SECTION 153C ONCE POWER UNDER S. 153C ARE EXERCISED VALIDLY. THIS HOWEVER IS NOT THE SAME THI NG TO SAY THAT THERE IS ANY STATUTORY COMPULSION TO RESORT ONLY TO MODE PRESCRIBED UNDER S. 153A / S.153C IN THE EVENT OF SEARCH. THE SCHEME OF ACT DOES NOT SUGGEST THAT MERE SEARCH ACTION REVEALING INCREMENT ING MATERIAL AGAINST THE PERSON OTHER THAN SEARCHED PERSON WOULD AUTOMATICALLY OUST THE POWER OF THE AO OVER THE ASSESSEE CONCERNE D UNDER S. 147 OF THE ACT. THE OVERRIDING PROVISIONS OF S. 153C MEREL Y ENABLES THE AO TO SET ASIDE THE PENDING REASSESSMENT PROCEEDINGS A ND GRANTS PRIMACY TO SECTION 153C OF THE ACT. AS NOTED EARLIER, EXER CISE OF POWER UNDER S. 153C IS GOVERNED WITHOUT ANY STRINGENT FETTERS O F HOLDING 'REASON TO BELIEVE' CONTEMPLATED UNDER S. 147. THEREFORE, WHIL E EXERCISE OF OVERRIDING POWER UNDER S. 153C WILL RENDER S. 147 O TIOSE, THE CONVERSE CASE OF CLIPPING THE POWERS AVAILABLE UNDE R S. 147 IN SEARCH CASES PER SE IS NOT FOUND TO BE RECONCILABLE TO THE SCHEME OF THE ACT. IN THE LIGHT OF SCHEME OF THE ACT NARRATED ABOVE, W E ARE OF THE VIEW THAT THE AO OF THE ASSESSEE (PERSON OTHER THAN SEAR CHED PERSON) CANNOT BE COMPELLED TO PURSUE REMEDY NECESSARILY UNDER S.1 53C OF THE ACT IN EXCLUSION TO REMEDY AVAILABLE TO THE AO UNDER S.1 47 OF THE ACT. ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 22 - THUS, ON THIS COUNT ALSO, THE ACTION OF THE AO UNDE R S.147 OF THE ACT IS WITHIN THE FOUR CORNERS OF LAW AND NOT BE FAULTE D. 14.5 THE DECISIONS CITED ON BEHALF OF THE ASSESSEE ARE CLEARLY DISTINGUISHABLE AND DO NOT RAISE ANY CONFLICT WITH POSITION OF LAW NARRATED ABOVE. THE DECISION RENDERED BY THE GUJAR AT HIGH COURT IN THE CASE OF CARGO CLEARING AGENCY VS. JCIT [2008] 3 07 ITR 1 (GUJ) HAS BEEN RENDERED UNDER A DIFFERENT SCHEME FOR ASSE SSMENT OF SEARCH CASES I.E. WITH REFERENCE TO BLOCK PERIOD REGIME. THE HONBLE GUJARAT HIGH COURT ALSO ECHOES THAT IN CASE OF CONFLICT BET WEEN THE OPERATION OF ERSTWHILE SECTION 158BC OF THE ACT (PERTAINING T O ERSTWHILE ASSESSMENT PROCEDURE IN THE CASE OF THIRD PERSON UN DER OLD SCHEME) AND SECTION 147/148 OF THE ACT UNDER NORMAL PROVISI ONS, PROVISIONS OF ERSTWHILE SECTION 158BC WILL PREVAIL. THE HONBLE GUJARAT HIGH COURT HAS ALSO OPINED THAT PROCEEDINGS UNDER S.147/ 148 OF THE ACT WILL NOT LIE WHERE IT IS REPUGNANT TO THE PROCEDURE LAID DOWN UNDER ERSTWHILE CHAPTER XIV-B RELATING TO SEARCH CASES. IN THE INSTANT CASE, WHERE THE ONEROUS PROCEEDINGS UNDER S. 153C OF THE ACT HAS NOT BEEN INVOKED AND COULD NOT POSSIBLY BE INVOKED, THERE WA S NO IMPEDIMENT FOR INITIATING PROCEEDINGS UNDER S.147 OF THE ACT B Y THE AO AS DISCUSSED IN ELABORATION ABOVE. THEREFORE, IN CARG O CLEARING AGENCY AND OTHER DECISIONS OF THE CO-ORDINATE BENCH CITED ON BEHALF OF THE ASSESSEE RENDERED ON SIMILAR LINES DO NOT GIVE RISE TO ANY CONFLICT AND ARE OF NO ASSISTANCE TO THE ASSESSEE. 14.6 CONSEQUENTLY, THE SECOND ADDITIONAL GROUND IS ALSO DISMISSED. 15. WE SHALL NOW ADDRESS THE ISSUE ON MERITS. WE O BSERVE FROM THE APPELLATE ORDER OF THE CIT(A) THAT THE ASSESSEE DID NOT DISCLOSE THE TRANSACTIONS FOUND TO BE RECORDED IN BANAKHAT TO TH E AO AT ALL. WHILE ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 23 - THE ASSESSEE HAS NOT ADVANCED ITS ARGUMENTS ON MERI TS IN ANY DETAIL EXCEPT FOR THE SUBMISSION THAT (I) BANAKHAT WAS EXE CUTED FOR EARNING HEFTY COMMISSION (II) THE PROPOSED SELLER IN THE BA NAKHAT DID NOT HAVE THE OWNERSHIP RIGHT TO ENABLE HIM TO SELL THE PARCE L OF THE LAND TO THE PROPOSED PURCHASERS INCLUDING THE ASSESSEE (III) TH E SALE ULTIMATELY TOOK PLACE BETWEEN THE LAND OWNERS AND SHRI RAMESHB HAI B. AGRAWAL GROUP WITHOUT ANY REFERENCE TO THE PROPOSED SELLER (CHANDANKUMAR RAMANDAS POHANI) AND PROPOSED PURCHASERS (ASSESSEE AND OTHERS) IN THE FINAL DEED; WE NOTICE THAT THE CIT(A) HAS FOUND THAT BANAKHAT WAS NOTARIZED AND DULY SIGNED BY THE ASSESSEE AND THE O THER PARTIES. THE CIT(A) ALSO OBSERVED THAT SUCH BANAKHATS ARE TYPICA LLY PREPARED IN THE LAND TRANSACTIONS BY THE MIDDLEMEN/INVESTORS AN D THE LANDS ARE FIRST ACQUIRED AGAINST CONSIDERATION AND THEREAFTER ARRANGED TO BE TRANSFERRED DIRECTLY FROM THE OWNER TO THE ACTUAL B UYER IN THE FINAL DEED TO GAIN BENEFIT OF DIFFERENTIAL PROCEEDS. THE AFORESAID NARRATIVE APPEARS QUITE CREDIBLE IN THE LIGHT OF EXECUTION OF BANAKHAT. IT IS FOR THE ASSESSEE TO DEMONSTRATE THE CIRCUMSTANCES FOR E XECUTION OF BANAKHAT WHEN THE PROPOSED SELLER WAS NOT THE OWNER . THE ASSESSEE IS IN AUDACIOUS DENIAL EVEN ON THE FACE OF TANGIBLE DO CUMENTARY EVIDENCE TOWARDS PAYMENT OF RS.1,50,00,000/- IN CASH AS MENT IONED IN BANAKHAT. THE ASSESSEE HAS ALSO NOT DECLARED ANY C OMMISSION INCOME FLOWING FROM SUCH BANAKHAT, IF ANY, AS PROPOUNDED. THE BANAKHAT EXECUTED WAS NOT SHOWN TO HAVE BEEN EVENTUALLY CANC ELLED. THEREFORE, THE ENTIRE STORY LED ON BEHALF OF THE ASSESSEE IS A SMOKE SCREEN WITH AN INTENT TO MISLEAD THE REVENUE AND DENY IT OF ITS LA WFUL TAXES. OSTENSIBLY, THE ASSESSEE DOES NOT SEEK TO COME OUT WITH CLEAN HANDS AND WISHES TO PLAY HIDE AND SEEK. HENCE, WE FIND A PPARENT PLAUSIBILITY IN THE REASONING GIVEN BY THE CIT(A). THE INFERENCE DRAWN BY THE CIT(A) IS NOT WITHOUT LEGAL FOUNDATION . THE BALANCE OF PROBABILITIES ARE SKEWED AGAINST THE ASSESSEE. THE PLEA RAISED ON BEHALF OF THE ASSESSEE APPEARS MARGINAL AND PERIPHE RAL WHEN SEEN IN ITA NO. 3063/AHD/16 [SHAILESH S. PATEL VS.ITO] AY 2012-13 - 24 - TOTALITY. HENCE, WE DO NOT SEE ANY JUSTIFIABLE REA SON TO DISLODGE THE ORDER OF THE CIT(A). 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 31/08/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 31/08/20 18