A.C.I.T.-2, Agra V. Sh. Vivek Kumar Tripathi, Auraiya

ITA 322/AGR/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7689 (ITAT-AGRA)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 10-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J L VERMA ANIL VERMA
• Keywords: Search and seizure; Loose papers; Document seized; Assessment record; Block assessment; Documents seized
• Section: 153A; 147; 148; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 322 & 323/AGRA/2011 ASSTT. YEAR : 2003-04 & 2004-05 A.C.I.T. 2, VS. SHRI VIVEK TRIPATHI, AGRA. S/O SRI HAR NARAIN TRIPATHI, AYANA, AURAIYA. (PAN : AEAPT 9602 H) ITA NO. 321/AGRA/2011 ASSTT. YEAR : 2004-05 A.C.I.T. 2, VS. SHRI HARNARAYAN TRIPATHI, AGRA. S/O SRI GENDA LAL TRIPATHI, AYANA, AURAIYA. (PAN : ACYPT 6673 N) (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : S/SHRI J.L. VERMA, ANIL VERMA, ADV . DATE OF HEARING : 17.04.2012 DATE OF PRONOUNCEMENT OF ORDER : 20.04.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF ALL THE DEPARTMENTAL AP PEALS WHICH HAVE BEEN FILED ON THE IDENTICAL GROUNDS OF APPEAL. BOTH THE PARTIES MAINLY ARGUED IN THE CASE OF SHRI VIVEK KUMAR TRIPATHI IN ITA NO. 322/AGRA/20 11 AND HAVE STATED THAT THE ITA NO. 322, 323 & 321/AGRA/2011 2 ISSUES ARE IDENTICAL IN THE REMAINING APPEALS. FOR THE PURPOSE OF DISPOSAL OF ALL THE APPEALS, WE FIRST TAKE UP ITA NO. 322/AGRA/2011. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW : ITA NO. 322/AGRA/11 (VIVEK KUMAR TRIPATHI, A.Y. 200 3-04) 3. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A)-I, AGRA DATED 08.03.2011 FOR THE ASSESSMENT YEAR 2003- 04, CHALLENGING HIS ORDER IN ANNULLING THE ASSESSMENT ORDER U/S. 153C OF THE IT ACT. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO V IDE ORDER DATED 22.12.2006 COMPLETED THE ASSESSEE AND DETERMINED INCOME OF THE ASSESSEE AT RS.23,71,244/- AGAINST RETURN FILED IN COMPLIANCE TO THE NOTICE U/ S. 153C OF THE IT ACT SHOWING INCOME AT RS.1,00,000/-. THE ASSESSEE CHALLENGED TH E ASSESSMENT ORDER AND RESULTANT ADDITIONS BEFORE THE LD. CIT(A). THE ASSE SSEE ON LEGAL ISSUE SUBMITTED THAT THE PROCEEDINGS INITIATED U/S. 153C OF THE IT ACT ARE AB INITIO UNLAWFUL AND WITHOUT JURISDICTION, AS THE AO HAS NOT RECORDED N OTE OF SATISFACTION AS REQUIRED U/S. 153C(1) OF THE IT ACT. THE ASSESSEE RELIED UPO N THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT, 289 ITR 341 IN WHICH ITA NO. 322, 323 & 321/AGRA/2011 3 IT WAS HELD THAT IT IS A CONDITION PRECEDENT AND MA NDATORY THAT THE AO SHOULD HAVE RECORDED SATISFACTION IN THE CASE OF THE PERSON SEA RCHED THAT UNDISCLOSED INCOME BELONG TO OTHER PERSON. DURING THE HEARING, IT HAS BEEN FOUND THAT IN THE ASSESSMENT ORDER, THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF SEIZED DOCUMENTS ON ACCOUNT OF UNEXPLAINED DEPOSIT OF SECURITY AS PER THE SEIZE D DOCUMENTS LP-3 AND ON THAT BASIS TWO ADDITIONS HAVE BEEN MADE. HOWEVER, NOTHIN G WAS DISCUSSED ABOUT ANY CO-RELATION OF THE ACTIVITIES OF THE ASSESSEE WITH THE SEIZED DOCUMENT, LP-3. THE SEIZED DOCUMENT CONTAINED THE DETAILS REGARDING TOL L TAX COLLECTION FROM THE TOLL BRIDGE AND THE ASSESSEE EXPLAINED THAT THE SECURITY DEPOSIT WAS GIVEN FOR TOLL TAX COLLECTION OF UNCHCHA BRIDGE. IT WAS INFORMED THAT THIS WORK WAS DONE BY THE ASSESSEE JOINTLY WITH SHRI SURESH KUMAR PANDEY. IT WAS ALSO INFORMED THAT THE ASSESSEE HAS ALREADY DECLARED INCOME FROM THIS BUSI NESS AND INVESTMENT IN THIS BUSINESS IS DULY DECLARED IN THE BALANCE SHEET FILE D WITH THE RETURN FOR THE ASSESSMENT YEAR 2003-04. AFTER MAKING NECESSARY VER IFICATION FROM THE ASSESSMENT RECORDS OF ASSESSMENT YEAR 2003-04, THE AO CONFIRME D THAT RS.3,00,000/- HAVE BEEN SHOWN AS WITHDRAWN FROM THE CAPITAL AND GIVEN TO SHRI SURESH KUMAR PANDEY FOR INVESTMENT IN TOLL BRIDGE. BALANCE INVESTMENT H AS BEEN MADE BY SHRI SURESH KUMAR PANDEY. THE ASSESSEE TOOK OBJECTION OF THE VA LIDITY OF THE PROCEEDINGS U/S. 153C BEFORE THE LD. CIT(A) BECAUSE NO SATISFACTION NOTE WAS RECORDED IN THE CASE OF THE PERSONS SEARCHED, I.E., SRI SHRIDHAR PANDY, SANTOSH KUMAR PANDEY AND SHRI ITA NO. 322, 323 & 321/AGRA/2011 4 SURESH KUMAR PANDEY REGARDING THE SATISFACTION OF T HE AO, ASSESSING THESE PERSONS THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ITEMS OR BOOKS OF ACCOUNT, DOCUMENT SEIZED DURING THE COURSE OF SEARCH PROCEED ING ON THE ABOVE MENTIONED THREE PERSONS OF PANDEY GROUP WERE BELONGING TO THE ASSESSEE. ON THE OBJECTIONS AND SUBMISSIONS OF THE ASSESSEE, THE AO WAS DIRECTE D TO EXAMINE ASSESSMENT RECORDS OF THE PERSON SEARCHED AND TO INFORM WHETHE R ANY SATISFACTION WAS RECORDED WHICH IS NECESSARY FOR INITIATING PROCEEDINGS U/S. 153C OF THE ACT. AFTER EXAMINING THE RECORDS OF THE PERSONS SEARCHED AND OTHER RECOR DS RELATING TO THEIR SEARCH, THE AO ADMITTED THAT NO SUCH SATISFACTION WAS RECORDED BEFORE ISSUING THE NOTICE U/S. 153C TO THE ASSESSEE AND EVEN THE INVESTMENT SHOWN IN THE NAME OF ASSESSEE IN THE DIARY WAS ALREADY DECLARED BY THE ASSESSEE IN THE R EGULAR RETURN, AS WAS CONFIRMED BY THE AO DURING THE HEARING BEFORE THE LD. CIT(A). THE LD. CIT(A) ON THE BASIS OF THE DISCUSSION THAT THE ASSESSEES COUNSEL AND THE AO FOUND THAT NEITHER ANY SATISFACTION WAS RECORDED BY THE AO IN THE ASSESSME NT PROCEEDINGS OF THE PERSON SEARCHED, I.E., PANDEY GROUP NOR IT WAS ESTABLISHED AT THE TIME OF ISSUING OF NOTICE U/S. 153C WHETHER THE SEIZED RECORD, LP-3 BELONGED TO THE ASSESSEE NOR IT COULD BE ESTABLISHED BY THE AO AT ANY STAGE OF ASSESSMENT OR IN THE REMAND PROCEEDINGS THAT THE SEIZED PAPER LP-3 BELONGS TO THE ASSESSEE. THE LD. CIT(A), THEREFORE, FOUND THAT NO SATISFACTION U/S. 153C HAS BEEN RECORDED BEFORE ISSUING NOTICE, WHICH IS MANDATORY AND FURTHER IT IS NOT CLEAR WHETHER THE S EIZED PAPERS BELONG TO THE ITA NO. 322, 323 & 321/AGRA/2011 5 ASSESSEE. THE LD. CIT(A), THEREFORE, FOUND THAT THE CONDITIONS OF SECTION 153C HAVE NOT BEEN SATISFIED BECAUSE NO SATISFACTION HAS BEEN RECORDED AND FURTHER IT IS NOT SPECIFIED THAT THE DOCUMENTS HAVE BEEN HANDED OVER TO THE CONCERNED AO AND THAT THE SEIZED PAPERS BELONG TO THE ASSESSEE. THE LD. C IT(A) ON ANALYZING PROVISIONS OF SECTION 153C WITH SECTION 158BD FOUND THAT BOTH THE PROVISIONS ARE SIMILAR AND SATISFACTION AS REQUIRED UNDER LAW SHOULD BE RECORD ED. THE LD. CIT(A) RELIED UPON THE ORDER OF ITAT, LUCKNOW BENCH IN THE CASE OF SMT . SURINDER KAUR, 18 DTR (LUCK)(TRIB) 38, IN WHICH IT HAS BEEN HELD THAT THE PROVISIONS RELATING TO SATISFACTION OF THE AO U/S. 153C FOR INITIATING ASS ESSMENT PROCEEDINGS AFTER SEARCH ARE PARI MATERIA WITH SECTION 158BD. IT WAS FURTHER HELD THAT SO FAR AS CONDITIONS REQUIRED TO BE SATISFIED BEFORE INVOKING SECTION 15 3C ARE CONCERNED, THEY ARE THE SAME WHICH ARE REQUIRED TO BE SATISFIED FOR INITIAT ING BLOCK ASSESSMENT PROCEEDINGS AGAINST OTHER PERSONS AS PER SECTION158BD. THE LD. CIT(A) ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MA NISH MAHESHWARI (SUPRA) AND HELD THAT SATISFACTION SHOULD BE RECORDED AS REQUIR ED UNDER THE ACT BEFORE INITIATION OF PROCEEDING AGAINST THE ASSESSEE. HOWEVER, IN THE PRESENT CASE, NO SATISFACTION HAS BEEN RECORDED AND EVEN THE AO HAS FAILED TO EST ABLISH THAT THE DIARY LP-3 BELONG TO THE ASSESSEE. THEREFORE, THE CONDITIONS O F SECTION 153C WERE NOT FOUND TO BE SATISFIED. THE LD. CIT(A) ACCORDINGLY ANNULLED T HE ASSESSMENT ORDER AND ALLOWED THE APPEAL OF THE ASSESSEE. ITA NO. 322, 323 & 321/AGRA/2011 6 5. THE LD. DR RELIED UPON THE ORDER OF THE AO AND S UBMITTED THAT SEIZED PAPER LP-3 WAS FOUND IN THE SEARCH ON THE BASIS OF WHICH THE AO MADE THE ADDITION AGAINST THE ASSESSEE. THE SATISFACTION IN THE CASE OF PERSON SEARCHED IS, THEREFORE, DISCERNIBLE AND THERE IS NO REQUIREMENT TO RECORD T HE SATISFACTION SEPARATELY. HE HAS RELIED UPON THE DECISION OF ALLAHABAD HIGH COURT IN THE CASE OF DIGVIJAY CHEMICALS LTD., 248 ITR 381, IN WHICH IT WAS HELD THAT THERE WAS NO REQUIREMENT IN SECTION 158BD OF AFFORDING OPPORTUNITY OF HEARING TO A PART Y BEFORE RECORDING SATISFACTION. THIS SATISFACTION WAS NOT A QUASI-JUDICIAL ORDER BU T AN ADMINISTRATIVE ORDER. HE HAS ALSO RELIED UPON THE ORDER OF ITAT BANGALORE BENCH IN THE CASE OF SUBHAN JAVEED VS. ACIT, 122 ITD 307 (BANG.) IN WHICH IT WAS HELD THAT THE ACT DOES NOT SAY THAT SATISFACTION SHOULD BE RECORDED IN WRITING AND ONE HAS TO ASCERTAIN THE SATISFACTION FROM THE RECORDS OF THE PERSONS SEARCHED, WHOSE PRE MISES HAVE BEEN SEARCHED AND IN THAT CASE, IT WAS FELT THAT THE REQUISITE SATISF ACTION HAS BEEN RECORDED BY THE AO WHO WAS HAVING JURISDICTION OVER THE PERSON WHO WAS RAIDED AND AS SUCH, SATISFACTION WAS CLEARLY INFERRED FROM THE RECORD W HICH INCLUDES THE ASSESSMENT ORDER AND OTHER RELEVANT DOCUMENTS. ON THE OTHER HA ND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). ITA NO. 322, 323 & 321/AGRA/2011 7 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. SECTION 153C(1) OF THE IT ACT PROVIDES AS UNDER : ASSESSMENT OF INCOME OF ANY OTHER PERSON. 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 M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS 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 SHAL L BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR RE ASSESS INCOME OF 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 MA KING 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 OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. 6.1 HONBLE GUJRAT HIGH COURT IN THE CASE OF VIJAYB HAI N. CHANDRANI VS. ACIT, 333 ITR 436 HELD SECTION 153A, 153B AND 153C OF THE INCOME-TAX ACT, 1961, LAY DOWN A SCHEME FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. SECTION 153C WHICH IS SIMILARLY WORDED TO SECTION 1 58BD OF THE ACT, PROVIDES THAT WHERE THE ASSESSING OFFICER IS SATISF IED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG S OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A HE SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SU CH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON. HOWEVER, THERE IS A DISTINCTION BETWEEN THE TWO PROVISIONS I NASMUCH AS UNDER ITA NO. 322, 323 & 321/AGRA/2011 8 SECTION 153C NOTICE CAN BE ISSUED ONLY WHERE THE MO NEY, BULLION, JEWELLERY OR OTHER VALUATION ARTICLE OR THING OR BO OKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO SUCH OT HER PERSON, WHEREAS UNDER SECTION 158BD IF THE ASSESSING OFFICE R WAS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER S ECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS WERE REQUISITIONED UNDER SECTION 132A, HE COULD PROCEED AGAINST SUCH OTHER PERSON UNDER SECTION 158BC. THUS A CONDITION PRECEDENT FOR ISSUING NOTICE UNDER SECTION 153C AND ASSESSING OR REASSESSING INCOME OF SUCH OTHER PERSON, IS THAT THE MONEY, BUL LION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING OR BOOKS OF ACCOUN T OR DOCUMENTS SEIZED OR REQUISITIONED SHOULD BELONG TO SUCH PERSO N. IF THE REQUIREMENT IS NOT SATISFIED, RECOURSE CANNOT BE HA D TO THE PROVISIONS OF SECTION 153C. HELD, ALLOWING THE PETITION, THAT ADMITTEDLY, THE THREE LOOSE PAPERS RECOVERED DURING THE SEARCH PROCEEDINGS DID NOT BELONG TO THE PETITIONER. IT WAS NOT THE CASE OF THE REVENUE THAT THE THREE DOCUMENTS WERE IN THE HANDWRITING OF THE PETITIONER. IN THE C IRCUMSTANCES, WHEN THE CONDITION PRECEDENT FOR ISSUANCE OF NOTICE WAS NOT FULFILLED ACTION TAKEN UNDER SECTION 153C OF THE ACT STOOD VITIATED. 6.2 HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS . LATE J. CHANDASEKAR (HUF), 338 ITR 61 HELD ON THE SEARCH CONDUCTED IN THE CASE OF A AND GROUP ON NOVEMBER 25, 2003, MATERIALS PERTAINING TO ON-MONE Y PAYMENT PAID TO THE ASSESSEE IN RESPECT OF PROPERTY PURCHAS ED FROM THE ASSESSEE WERE SEIZED. BASED ON THAT, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 153C OF THE INCOME-TAX ACT, 19 61, AND REWORKED THE CAPITAL GAINS. THE COMMISSIONER (APPEALS) AND T HE TRIBUNAL HELD THAT THE NOTICE UNDER SECTION 153C WAS NOT VALID. O N APPEAL TO THE HIGH COURT : HELD, DISMISSING THE APPEALS, THAT THE ASSESSING OFFICER DID NOT HAVE THE BENEFIT OF THE SEIZED MATERIAL WHILE ISSUI NG THE NOTICE UNDER SECTION 153C. IN THE LIGHT OF THE FACT THAT THE REV ENUE DID NOT PRODUCE ANY MATERIAL TO SHOW THAT THE MATERIALS WERE AVAILA BLE AT THE HANDS OF ITA NO. 322, 323 & 321/AGRA/2011 9 THE ASSESSING OFFICER AT THE TIME OF ISSUING NOTICE , THE TRIBUNAL RIGHTLY CAME TO THE CONCLUSION THAT THE ASSUMPTION OF JURIS DICTION UNDER SECTION 153C WAS NOT VALID. 6.3 HONBLE SUPREME COURT IN THE CASE OF MANISH MAH ESHWARI V. ACIT; 289 ITR 349 HELD- 11. THE CONDITION PRECEDENT FOR INVOKING A BLOCK A SSESSMENT IS THAT A SEARCH HAS BEEN CONDUCTED UNDER SECTION 132 OR DOCUMENTS OR ASSETS HAVE BEEN REQUISITIONED UNDER SECTION 132A. THE SAID PROVISION WOULD APPLY IN THE CASE OF ANY PERSON IN RESPECT OF WHOM SEARCH HAS BEEN CARRIED OUT UNDER SECTION 132A OR DOCUMENTS OR ASSETS HAVE BEEN REQUISITIONED UNDER SECTION 132A. SECTION 158B D, HOWEVER, PROVIDES FOR TAKING RECOURSE TO A BLOCK ASSESSMENT IN TERM OF SECTION 158BC IN RESPECT OF ANY OTHER PERSON, THE CONDITION S PRECEDENT WHEREFOR ARE (I) SATISFACTION MUST BE RECORDED BY T HE ASSESSING OFFICER THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UND ER SECTION 132 OF THE ACT; (II) THE BOOKS OF ACCOUNTS OR OTHER DOC UMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON; AND (II I) THE ASSESSING OFFICER HAS PROCEEDED UNDER SECTION 158BC AGAINST S UCH OTHER PERSON. THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISION S OF SECTION 158BD THUS ARE REQUIRED TO BE SATISFIED BEFORE THE PROVISIONS OF THE SAID CHAPTER ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WHOSE PREMISES HAD BEEN SEARCHED OR WHOSE DO CUMENTS AND OTHER ASSETS HAD BEEN REQUISITIONED UNDER SECTION 1 32A OF THE ACT. IT WAS FURTHER HELD- LAW IN THIS REGARD IS CLEAR AND EXPLICIT. THE ONLY QUESTION WHICH ARISES FOR OUR CONSIDERATION IS AS TO WHETHER THE NOTICE DATED FEBRUARY 6M 1996, SATISFIES THE REQUIREMENTS OF SEC TION 158BD OF THE ACT. THE SAID NOTICE DOES NOT RECORD ANY SATISFACTI ON ON THE PART OF THE ASSESSING OFFICER. DOCUMENTS AND OTHER ASSETS RECOV ERED DURING ITA NO. 322, 323 & 321/AGRA/2011 10 SEARCH HAD NOT BEEN HANDED OVER TO THE ASSESSING OF FICER HAVING JURISDICTION IN THE MATTER. IT WAS FURTHER HELD- AS THE ASSESSING OFFICER HAS NOT RECORDED HIS SATI SFACTION, WHICH IS MANDATORY; NOR HAS HE TRANSFERRED THE CASE TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THE MATTER, WE ARE OF THE OPINION THAT THE IMPUGNED JUDGMENTS OF THE HIGH COURT CANNOT BE SUSTAINED, WHICH ARE SET ASIDE ACCORDINGLY. THE APPEALS ARE ALLOWED. HOWEVER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THERE SHALL BE NO ORDER AS TO COSTS. 6.4 HONBLE DELHI HIGH COURT IN THE CASE OF AMITY H OTELS PRIVATE LIMITED V. CIT, 272 ITR 75 HELD- HELD, THAT, IN THE PRESENT CASE, THERE WAS NOTHING TO INDICATE THAT THE ASSESSING OFFICER COULD HAVE FORMED AN OPINION AND ARRIVED AT A SATISFACTION THAT THE PETITIONER HAD NOT TRULY DISC LOSED ITS INCOME. THE APPRECIATION REPORT CLEARLY REVEALED THAT THE ASSES SING OFFICER WAS CALLED UPON TO LOOK INTO IT WITH REGARD TO SEVERAL ENTRIES AND THE ASSESSING OFFICER IN HIS NOTHING HAD CLEARLY INDICA TED THAT IT REQUIRED FURTHER INVESTIGATION IN-DEPTH SCRUTINY AND THERE W AS NOTHING TO INDICATE THAT HE HAD RECORDED IN WRITING THAT HE WA S SATISFIED ABOUT THE ACTION REQUIRED TO BE INITIATED. EVEN IN THE AF FIDAVIT IN REPLY IT WAS NOT STATED THAT THE ASSESSING OFFICER WAS SATISFIED AND HENCE ISSUED NOTICE. ON THE CONTRARY, IT REVEALED THAT TO ARRIVE AT A SATISFACTION NOTICE WAS ISSUED AND THAT WAS CLEAR FROM THE AFFID AVIT OF THE ASSESSING OFFICER. THE PROPERTY WHICH WAS REFERRED TO FOR INITIATING PROCEEDINGS HAD ALREADY BEEN DISCLOSED IN THE RETUR N OF INCOME. THE NOTICES ISSUED UNDER SECTION 158BD WERE NOT VALID A ND WERE LIABLE TO BE QUASHED. 7. CONSIDERING THE FACTS OF THE CASE AS HAVE BEEN N OTED IN THE IMPUGNED ORDER AND THE FINDINGS OF THE LD. CIT(A) IN THE LIGHT OF ABOVE DECISION, WE ARE OF THE VIEW THAT THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND LAW RIGHTLY ANNULLED THE ITA NO. 322, 323 & 321/AGRA/2011 11 ASSESSMENT. THE AO AFTER NECESSARY VERIFICATION OF ASSESSMENT RECORDS CONFIRMED THAT THE ASSESSEE HAS WITHDRAWN RS.3,00,000/- FROM THE CAPITAL AND GIVEN TO SHRI SURESH KUMAR PANDEY, ONE OF THE PERSON SEARCHED FOR INVESTMENT IN TOLL BRIDGE. BALANCE INVESTMENT HAS BEEN MADE BY SHRI SURESH KUM AR PANDEY. THE AO ALSO CONFIRMED AFTER EXAMINING THE RECORDS OF THE PERSON S SEARCHED THAT NO SUCH SATISFACTION WAS RECORDED AS REQUIRED U/S. 153C OF THE ACT. IT WAS ALSO CONFIRMED THAT THE INVESTMENT SHOWN IN THE NAME OF THE ASSESS EE IN THE SEIZED DIARY HAS ALREADY BEEN DECLARED BY THE ASSESSEE IN THE REGULA R RETURN OF INCOME. THESE FACTS WOULD CLEARLY ESTABLISH THAT THE SEIZED DOCUMENTS D ID NOT BELONG TO THE ASSESSEE AND THERE WAS NO REASON FOR THE AO TO HAVE SATISFIE D TO PROCEED AGAINST THE ASSESSEE U/S. 153C OF THE IT ACT. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN ANNULLI NG THE ASSESSMENT ORDER. THE DECISIONS CITED BY THE LD. DR ARE CLEARLY DISTINGUI SHABLE ON FACTS. IN THE RESULT, THE DEPARTMENTAL APPEAL IN ITA NO. 322/AGRA/2011 IS DIS MISSED. ITA NO. 323/AGRA/2011(VIVEK KUMAR TRIPATHI, A.Y. 20 04-05) & ITA NO. 321/AGRA/2011(HARNARAYAN TRIPATHI, A.Y. 200 4-05) : 8. BOTH THE APPEALS BY THE REVENUE ARE DIRECTED AGA INST DIFFERENT ORDERS OF LD. CIT(A)-I, AGRA DATED 08.03.2011 FOR THE ASSESSMENT YEAR 2004-05, CHALLENGING THE ORDER OF THE LD. CIT(A) IN ANNULLING THE ASSESSMENT ORDER U/S. 153C OF THE IT ACT. IT ITA NO. 322, 323 & 321/AGRA/2011 12 IS ADMITTED FACT THAT THE ISSUE IS SIMILAR AS IS CO NSIDERED IN THE CASE OF VIVEK KUMAR TRIPATHI IN ITA NO. 322/AGRA/2011 FOR ASSESSM ENT YEAR 2003-04. BY FOLLOWING THE SAME REASONS FOR DECISION, WE DISMISS THE DEPARTMENTAL APPEALS. IN THE RESULT, ITA NO. 323 AND 321/AGRA/2011 ARE ALSO DISMISSED. 9. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY