ACIT. Central Circle- 30, NEW DELHI V. Amarjyoti Vanijya (P) Ltd., NEW DELHI

ITA 4048/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0043 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUSHMA SINGH
• Keywords: Reopening of assessment; Unexplained cash credit; Unexplained investment; Unexplained expenditure; Gift; Search and seizure; Document seized; Question of law; Block assessment; Documents seized; Reassessment proceedings; Set aside; CHAPTER XIVB
• Section: 69C; 143(3); 153A; 143(1); 143(2); 43; 48; 13; 153; 22; 153C; 147; 68; 148; 263; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER I .T.AS. NO. 4046, 4047, 4048/DEL/2017 ASSESSMENT YEARS: 2007-08, 2009-10, 2010-11 & 2011- 12 ACIT, CENTRAL CIRCLE-30, NEW DELHI. VS. AMARJYOTI VANIJYA PVT. LTD., 203, PUJA HOUSE, KARAMPURA, COMMERICAL HOUSE, NEW DELHI. TAN/PAN: AAGCA4362A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY WADHWA, ADV. RESPONDENT BY: SHRI SUSHMA SINGH, CIT-D.R. DATE OF HEARING: 24 03 2021 DATE OF PRONOUNCEMENT: 18 06 2021 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEALS HAVE BEEN FILED BY THE DEPARTM ENT AGAINST THE ORDERS PASSED BY LD. COMMISSIONER OF IN COME TAX (APPEAL) XXX, NEW DELHI, FOR THE QUANTUM OF ASSES SMENT PASSED U/S.153C FOR THE ASSESSMENT YEARS 2009-10 TO 2011-1 2. THE ISSUES INVOLVED IN THE APPEALS ARE COMMON, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CON SOLIDATED ORDER. THE GROUNDS OF APPEAL FILED BY THE DEPARTMENT ARE RE PRODUCED AS UNDER:- I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 2 ITA NO. 4046/D/2017 AY 2009-10 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE ADDITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CA SH CREDITS OF RS. 22,82,10,000/- ON SUBSTANTIVE BASIS AND RS. 77,85,0 00/- ON PROTECTIVE BASIS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE ADDITION OF RS. 11,41,050/- AS UNEXPLAINED EXPENDITURE ON ACCOUNT O F BROKERAGE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISIO N IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS N OT BEEN ACCEPTED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FI LED BEFORE HONBLE SUPREME COURT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLU SION THAT THE WORDS 'TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEA N UNDISCLOSED INCOME DISCOVERED FROM SEIZED / INCRIMINATING MATER IAL. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153C/ 153A OF THE ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLU SION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEA N INCOME UNEARTHED DURING SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09.08.2014 HAS HELD THAT TOTAL INCOME INCLUDES INCO ME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 3 ITA NO. 4047/D/2017 AY 2010-11 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE TH E ADDITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS OF RS. 2 9,09,54,300/- & RS. 8,53,47,000/- ON SUBSTANTIVE BASIS AND RS. 3,95,38, 700/- ON PROTECTIVE BASIS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE TH E ADDITION OF RS. 18,81,506/- AS UNEXPLAINED EXPENDITURE ON ACCOUNT OF BROKERAGE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPR EME COURT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEAN UNDISCLO SED INCOME DISCOVERED FROM SEIZED / INCRIMINATING MATERIAL. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDA NTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153C/153A OF THE ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEAN INCOME UNEARTH ED DURING SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09.08.2014 HAS H ELD THAT TOTAL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTH ER INCOME. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF T HE APPEAL. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 4 ITA NO. 4048/D/2017 AY 2011-12 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE TH E ADDITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS OF RS. 2 5,59,91,700/- ON PROTECTIVE BASIS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE TH E ADDITION OF RS. 12,79,959/- AS UNEXPLAINED EXPENDITURE ON ACCOUNT OF BROKERAGE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPR EME COURT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEAN UNDISCLOSED IN COME DISCOVERED FROM SEIZED / INCRIMINATING MATERIAL. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDA NTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153C/153A OF THE ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS 'TOTAL INCOME AS USED IN SECTION 153C/153A WOULD ONLY MEAN INCOME UNEARTH ED DURING SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09.08.2014 HAS H ELD THAT TOTAL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTH ER INCOME. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF T HE APPEAL. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 5 2. THE AMOUNT OF ADDITIONS UNDER CHALLENGE WHICH WERE DELETED BY LD. COMMISSIONER OF INCOME TAX (APPEALS) ARE AMOU NTING TO RS. 22,82,10,000/-IN AY 2009-10, RS. 37,63,01,300/- IN AY 2010-11 AND RS. 22,59,91,700/-IN AY 2011-12 IN RESPECT OF S HARE APPLICATION MONEY/SHARE CAPITAL RECEIVED BY THE ASSESSEE AS UNEXP LAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND RS. 11,41,05 0/- IN AY 2009- 10, RS. 18,81,500/-IN AY 2010-11 AND RS. 12,79,959/ - IN AY 2011- 12 IN RESPECT OF BROKERAGE ON SUCH UNEXPLAINED CASH CREDIT AS UNEXPLAINED EXPENDITURE UNDER SECTION 69C OF THE AC T. THE ADDITIONS IN RESPECT OF UNEXPLAINED INVESTMENT IN M/S PRAKASH INDUSTRIES ARE RS. 77,85,000/- IN AY 2009-10 AND RS. 39538700/- IN AY 2010-11. 3. THE BRIEF FACTS LEADING TO THESE APPEALS ARE THAT C ONSEQUENT TO A SEARCH CONDUCTED ON M/S PRAKASH INDUSTRIES LTD (P IL IN SHORT) UNDER SECTION 132(1) OF THE ACT ON 30.12.2012, THE ASSESSING OFFICER OF THE SEARCHED PERSON WAS SATISFIED THAT THERE WER E DOCUMENTS FOUND WITH PIL WHICH ACCORDING TO HIM, WERE BELONGI NG TO THE APPELLANT AND ON THE BASIS OF THESE DOCUMENTS FOUND , A SATISFACTION NOTE WAS RECORDED BY THE ASSESSING OFFICER OF PIL AN D THE ASSESSING OFFICER OF THE APPELLANT BEFORE ISSUING NOTICE DATE D 12.02.2015UNDER SECTION 153C R.W.S 153A OF THE ACT. INCIDENTALLY IN THIS CASE, THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE AS SESSING OFFICER OF THE APPELLANT ARE THE SAME. 4. THE APPELLANT SOUGHT COPIES OF THE SATISFACTION NOTESWHICH WERE RECORDED BEFORE ISSUANCE OF NOTICE UNDER SECTI ON 153C OF THE ACT. COPIES OF SATISFACTION NOTES DATED 22.12.2014 DRAWN BY I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 6 ASSESSING OFFICEROF PIL AND BY THE ASSESSING OFFICER OF THE APPELLANT WERE SUPPLIED TO THE APPELLANT. THE APPELLANT FILED DETAILED OBJECTIONS AGAINST THE SATISFACTION RECORDED BY THE ASSESSING O FFICER WHICH WAS DISPOSED OF BY THE ASSESSING OFFICER. 5. THE APPELLANT CHALLENGED THE SATISFACTION NOTES AND CONTENDED INTER-ALIA THAT THE DOCUMENTS FOUND FROM THE PREMIS ES OF PIL RELATING TO THE APPELLANT WAS THOSE THAT WERE DULY RECORDED I N THE REGULAR BOOKS OF ACCOUNT OF THE APPELLANT AND WERE IN NO MA NNER INCRIMINATING IN NATURE. HENCE, THE APPELLANT CONTE NDED THAT SINCE THEY ARE NOT INCRIMINATING IN NATURE, NO ASSESSMENT CAN BE MADE ON THE BASIS OF THESE DOCUMENTS BECAUSE NO UNDISCLOSED INCOME IS DISCERNABLE OUT OF THESESEIZED DOCUMENTS AND THE YE ARS UNDER CONSIDERATION ARE COMPLETED ASSESSMENTS. IN THIS RE GARD, THE RATIO OF THE JUDGEMENT OF THE FAMOUS CASE OF THE HON'BLE DEL HI HIGH COURT IN THE CASE OF KABUL CHAWLA 61 TAXMANN.COM 412 IS SQUA RELY APPLICABLE. 6. THE APPELLANT MADE DETAILED SUBMISSION AND CONTE NDED THAT A BARE PERUSAL OF THE SEIZED DOCUMENTS WOULD REVEAL T HAT THEY DO NOT EVEN PERTAIN TO THE ASSESSMENT YEARS IN QUESTION. HE NCE, NO DOCUMENTS INCRIMINATING IN NATURE IN RESPECT OF IMP UGNED ASSESSMENT YEAR WERE FOUND IN SEARCH CONDUCTED ON PI L. 7. WE HAVE PERUSED THE COPY OF THE SATISFACTION NOTE WHICH ARE ATTACHED AT PAGE NO. 21A TO 21D OF THE APPELLANTS PAPER BOOK AND THE SAME IS REPRODUCED FOR EASE OF REFERENCE:- I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 7 SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER OF PIL I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 8 I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 9 SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER OF THE APPELLANT I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 10 8. WE ARE TAKING THE APPEAL FOR THE ASSESSMENT YEAR 2010-11. FOR THE SAKE OF CONVENIENCE THE APPEAL FOR THE ASSESSME NT YEAR 2010-11 IS DISCUSSED AND OUR FINDING THEREIN WILL APPLY IN O THER TWO APPEALS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 11 ALSO. DURING THE YEAR UNDER CONSIDERATION, THE ASSES SEE HAS INCREASED ITS AUTHORIZED SHARE CAPITAL FROM 13,00,0 00 SHARES TO 2,00,00,000 SHARES FOR EXPANSION OF ITS ACTIVITIES AND FOR ITS WORKING CAPITAL REQUIREMENTS. IT HAS ISSUED 12,66,230 SHARE S @ 410/- PER SHARE AND RECEIVED SHARE APPLICATION MONEY OF RS.8,5 3,47,000/-. 9. THE LD. ASSESSING OFFICER HAD COMPLETED THE ASSE SSMENT U/S.153C ON 31.03.2015 AND MADE FOLLOWING ADDITIONS TO THE RETURN INCOME. A. UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM RS. 20,09,54,300 /- B. UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED DURING THE YEAR RS. 8,53,47,000/- C. UNEXPLAINED INVESTMENT AS A SHARE APPLICATION MONEY IN M/S PRAKASH INDUSTRIES LTD. RS. 3,95,38,700/- ON PROTEC TIVE BASIS. D. UNEXPLAINED EXPENDITURE ON ACCOUNT OF BROKERAGE @ 0 .5% OF 37,63,01,300I.E, RS. 18,81,506/-. 10 . AGGRIEVED BY THE ORDER OF LD. AO THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE LEARNED CIT(A). THE ASSESSEE PUT FORTH HIS ARGUMENTS AND FILED DETAILED SUBMISSI ONS AGAINST THE INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT AND ON MERITS BEFORE THE LD. CIT(A)COMMISSI ONER OF INCOME TAX (APPEALS) 30 (LD. CIT (A)). THE LD. CIT (A) AFTER EXAMINING THE CASE IN DETAIL PASSED THE ORDER IN FA VOUR OF ASSESSEE ON THE FOLLOWING GROUNDS: I. THE ADDITIONS MADE BY THE LD. AO ARE NOT BASED ON A NY INCRIMINATING MATERIAL AND FOLLOWING THE RATIO OF K ABUL CHAWLA THE ADDITIONS CANNOT BE MADE. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 12 II. THE STATEMENT RECORDED UNDER SEARCH ON THE BASIS OF WHICH ADDITIONS WERE MADE IS NOT A DOCUMENTS AS PER THE D ECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJ PAL BHATIA. 11. BEFORE US THE LD. COUNSEL IN HIS WRITTEN SUBMIS SION HAS SUBMITTED THAT I T IS A SETTLED LEGAL POSITION THAT PRIOR TO 01.06.2015 WHERE DOCUMENTS FOUND WITH THE PERSON SE ARCHED MAY CONTAIN INFORMATION ABOUT 'OTHER PERSON', BUT DOCUMENTS DO NOT BELONG TO HIM, PROCEEDINGS U/S 153 C WILL NOT BE VALID. ONLY W.E.F 01-06-2015, IF THE DOCUMEN TS/ BOOKS SEIZED FROM THE PREMISES OF PERSON SEARCHED, PERTAI N TO, OR ANY INFORMATION CONTAINED THEREIN, RELATES TO SUCH 'OTHER PERSON', PROCEEDINGS U/S 153C AGAINST SUCH 'OTHER P ERSON' WILL BE VALID. IN THE CASE OF THE ASSESSEE THE SEAR CH WAS CONDUCTED ON M/S PRAKASH INDUSTRIES LTD. ON 30.10.2 012 WHICH IS BEFORE 01.06.2015. SINCE THE SEARCH TOOK PLACE BEFORE 01.06.2015, THE NOTICE U/S 153C CAN BE ISSUE D ONLY IF THE DOCUMENTS SEIZED FROM THE PREMISES OF M/S PRAKA SH INDUSTRIES LTD. ARE FOUND TO BE BELONGING TO THE AS SESSEE COMPANY. FOR INITIATING VALID PROCEEDINGS U/S 153C OF THE ACT, RECORDING OF CLEAR AND POSITIVE SATISFACTION T HAT MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR DOCUMENTS OR BOOKS OF ACCOUNT ETC. SEIZED BELONG TO /BELONGS TO PERSON OTHER THAN SEARCHED PERSON, IS A SINE QUA NON REQUIREMENT. THE ABOVE REQUIREMENT UNDER THE LAW IS DUE TO THE PROVISIONS OF SECTION 132(4A) R.W.S. 292C OF TH E ACT WHICH PRESUMES THAT WHENEVER A DOCUMENT IS FOUND FROM A P ERSON WHO IS BEING SEARCHED THE SAID DOCUMENT BELONGS TO THAT I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 13 SEARCHED PERSON. IT IS FOR THE ASSESSING OFFICER TO REBUT THAT PRESUMPTION AND COME TO A CONCLUSION OR 'SATISFACTI ON' THAT THE DOCUMENT IN FACT BELONGS TO SOMEBODY ELSE. THER EFORE, IF ASSESSING OFFICER OF THE SEARCHED PERSON IS SATISFI ED THAT THE DOCUMENTS FOUND DURING THE SEARCH BELONGS TO THE AS SESSEE, HE IS REQUIRED TO TRANSFER THE ASSETS OR DOCUMENTS, WHICH HE BELIEVES BELONG TO THE OTHER PERSON, TO THE ASSESSI NG OFFICER HAVING JURISDICTION OVER THE ASSESSEE. THE ASSESSIN G OFFICER OF THE ASSESSEE ON RECEIPT OF SUCH ASSET OR DOCUMENT S EIZED WOULD HAVE JURISDICTION TO COMMENCE PROCEEDINGS UND ER SECTION 153C. THE ASSESSING OFFICER OF ASSESSEE AFT ER RECEIVING THE DOCUMENTS/ASSETS HAS, TO APPLY HIS MIND AS TO W HETHER THE ASSETS AND DOCUMENTS RECEIVED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF THE ASSESSEE A ND IF HE IS SO SATISFIED THAT THE SAME HAVE A BEARING ON THE DETERMINATION OF THE INCOME OF THE ASSESSEE, HE HAS TO ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE ASS ESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. IT IS ALSO A SETTLED LAW THAT THE SATISFACTION NOTE ITSELF MUST DISPLAY THE REASONS OR BASIS FOR THE CONCLUSION THAT THE ASSESS ING OFFICER OF THE SEARCHED PERSON IS SATISFIED THAT THE SEIZED DOCUMENTS BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON. 1. HONBLE HIGH COURT OF DELHI IN THE CASE OF RADHEY S HYAM BANSAL [337 ITR 217] HAS HELD THAT: AT THIS STAGE, AS THE PROCEEDINGS ARE AT THE VERY INITIAL STATE, THE 'SATISFACTION' NEITHER IS REQUIRED TO BE FIRM NOR C ONCLUSIVE. THE 'SATISFACTION' REQUIRED IS TO DECIDE WHETHER OR NOT BLOCK ASSESSMENT PROCEEDINGS ARE REQUIRED TO BE INITIATED. BUT 'SATI SFACTION' HAS TO BE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 14 FOUNDED ON REASONABLENESS. IT CANNOT BE CAPRICIOUS SATISFACTION. THOUGH IT IS A SUBJECTIVE SATISFACTION, IT MUST BE CAPABLE OF BEING TESTED ON OBJECTIVE PARAMETERS. THE OPINION, THOUGH TENTAT IVE, HOWEVER, CANNOT BE A PRODUCT OF IMAGINATION OR SPECULATION. IT CANNOT BE SPACIOUS OR MERCURIAL. IT SHOULD NOT BE A MERE PRETENCE AND SHOULD BE MADE IN GOOD FAITH RATHER THAN SUSPICION. RELIABILITY, CRED IBILITY OR FOR THAT MATTER WHAT WEIGHT HAS TO BE ATTACHED TO THE MATERIAL, DEP ENDS UPON THE SUBJECTIVE SATISFACTION OF THE ASSESSING OFFICER, B UT DEFINITELY IT IS SUBJECT TO SCRUTINY WHETHER THE SATISFACTION HAS A RATIONAL NEXUS OR A RELEVANT BEARING TO THE FORMATION OF SATISFACTION A ND IS NOT EXTRANEOUS OR IRRELEVANT. THE SATISFACTION MUST REFLECT RATIONAL CONNECTION WITH OR RELEVANT BEARING BETWEEN THE MATERIAL AVAILABLE AND UNDISCLOSED INCOME OF THE THIRD PERSON. THE RATIONAL CONNECTION POSTULATES AND REQUIRES SATISFACTION OF THE ASSESSING OFFICER THAT A THIRD PERSON HAS 'UNDISCLOSED INCOME' ON THE BASIS OF EVIDENCE OR MA TERIAL BEFORE HIM. THE MATERIAL ITSELF SHOULD NOT BE VAGUE, INDEFINITE , DISTINCT OR REMOTE. IF THERE IS NO RATIONAL OR INTANGIBLE NEXUS BETWEEN TH E MATERIAL AND THE SATISFACTION THAT A THIRD PERSON HAS 'UNDISCLOSED I NCOME', THE CONCLUSION WOULD NOT DESERVE ACCEPTANCE. THEN THE SATISFACTION IS VITIATED. IT IS TO THIS LIMITED EXTENT THAT THE SATISFACTION CAN BE GO NE INTO AND EXAMINED. THE SATISFACTION, THOUGH SUBJECTIVE, MUST MEET THE AFORESAID CRITERIA. [PARA 21] 12. FROM THE ABOVE DISCUSSION, FOLLOWING REQUIREMEN TS EMERGE OUT TO INITIATE VALID ACTION U/S 153C: A. FIRST, ASSESSING OFFICER OF THE PERSON SEARCHED IS TO RECORD SATISFACTION THAT SEIZED MATERIAL/DOCUMENTS ETC. BELONG TO /BELONGS TO THE PERSON OTHER THAN THE SEA RCHED PERSON. B. SUCH SATISFACTION NOTE ALONG WITH SEIZED MATERIAL BELONGING TO THE PERSON OTHER THAN SEARCHED PERSON I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 15 MUST BE HANDED OVER TO THE FILE OF ASSESSING OFFICE R HAVING JURISDICTION OVER SUCH OTHER PERSON. C. THEN, JURISDICTIONAL ASSESSING OFFICER OF THE PERSO N OTHER THAN SEARCHED PERSON HAS TO SATISFY HIMSELF T HAT DOCUMENTS RECEIVED MUST HAVE A BEARING ON THE DETERMINATION OF TOTAL INCOME OF SUCH OTHER PERSON AND AFTER RECORDING SUCH SATISFACTION, HE WILL ISSUE NO TICE U/S 153C. D. THE SATISFACTION NOTE MUST DISCLOSE THE REASONS OR BASIS OF SATISFACTION RECORDED. MERE USE OF WORDS SATISFACTION AND I AM SATISFIED ARE NOT SUFFICI ENT. 13 . IN THE PRESENT CASE THE ASSESSING OFFICER OF SEARCH ED PERSON AND THE ASSESSING OFFICER OF THE ASSESSEE IS A SAME. SATISFACTION RECORDED BY THE ASSESSING OFFICER OF S EARCHED PERSON I. SATISFACTION IS RECORDED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 30, NEW DELHI ON 22.12.2014. III. IN THE SATISFACTION NOTE RECORDED BY THE AO OF SEARCHED PERSON ATTACHED AT PAGE NO. 21A-21B OF THE PAPER BOOK, IT APPARENT THAT APART FROM SAYING THAT THE DOCUMENTS BELONGED TO M/S AMARJYOTIVANIJYAPVT. LTD. THERE IS NOTHING WHICH WO ULD INDICATE AS TO HOW THE PRESUMPTIONS WHICH ARE TO BE NORMALLY RAISED UNDER SECTION 132(4A), HAVE BEEN REBUTTED BY THE AS SESSING OFFICER. SATISFACTION RECORDED BY THE ASSESSING OFFICER OF T HE ASSESSEE: I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 16 I. SATISFACTION IS RECORDED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 30, NEW DELHI . DATE OF RECORDING SATISFACTION IS 22.12.2014. II. THE LD. AO NO-WHERE IN THE SATISFACTION NOTE RE CORDED HIS SATISFACTION THAT HOW THE SEIZED DOCUMENTS SUGGEST ANY ESCAPEMENT OF INCOME BY THE ASSESSEE AND HAVE ANY B EARING ON THE TOTAL INCOME OF THE ASSESSEE. 14. IT WAS SUBMITTED THAT, EVEN IF THE AO OF THE SE ARCHED PERSON AND THE AO OF THE OTHER PERSON IS THE SAME A ND ONLY ONE SATISFACTION NOTE IS SUFFICIENT TO COMPLY WITH THE LAW, RECORDING OF SATISFACTION THAT THE SEIZED DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON BUT BELONG TO THE OTH ER PERSON IS A MANDATORY PRE-CONDITION. HONBLE SUPREME COURT IN THE CASE OF SUPER MALLS P VT. LTD. VS. PCIT (423 ITR 281) HAS HELD THAT: IN CASE, WHERE THE ASSESSING OFFICER OF THE SEARCHE D PERSON AND THE OTHER PERSON IS THE SAME, THERE CAN BE ONE SATI SFACTION NOTE PREPARED BY THE ASSESSING OFFICER, AS HE HIMSELF IS THE ASSESSING OFFICER OF THE SEARCHED PERSON AND ALSO THE ASSESSI NG OFFICER OF THE OTHER PERSON. HOWEVER, AS OBSERVED HEREINABOVE, HE MUST BE CONSCIOUS AND SATISFIED THAT THE DOCUMENTS SEIZED/R ECOVERED FROM THE SEARCHED PERSON BELONGED TO THE OTHER PERS ON. 2. THE ASSESSEE ALSO RELIES UPON THE DECISION OF HONB LE HIGH COURT OF DELHI IN THE CASE OF PEPSI FOODS PVT. LTD. VS. ACIT (52 TAXMANN.COM 220) WHICH IS ALSO DISCUSSED AND APPROVED BY THE HONBLE SUPREME COURT IN THE CASE OF SUPER MALLS(SU PRA) WHEREIN IT HAS BEEN HELD THAT: I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 17 IT IS EVIDENT FROM THE ABOVE SATISFACTION NOTE THAT APART FROM SAYING THAT THE DOCUMENTS BELONGED TO THE PETITIONER AND T HAT THE ASSESSING OFFICER IS SATISFIED THAT IT IS A FIT CAS E FOR ISSUANCE OF A NOTICE UNDER SECTION 153C, THERE IS NOTHING WHICH W OULD INDICATE AS TO HOW THE PRESUMPTIONS WHICH ARE TO BE NORMALLY RA ISED AS INDICATED ABOVE, HAVE BEEN REBUTTED BY THE ASSESSIN G OFFICER. MERE USE OR MENTION OF THE WORD 'SATISFACTION' OR THE WO RDS 'I AM SATISFIED' IN THE ORDER OR THE NOTE WOULD NOT MEET THE REQUIREMENT OF THE CONCEPT OF SATISFACTION AS USED IN SECTION 153C OF THE SAID ACT. THE SATISFACTION NOTE ITSELF MUST DISPLAY THE REASO NS OR BASIS FOR THE CONCLUSION THAT THE ASSESSING OFFICER OF TH E SEARCHED PERSON IS SATISFIED THAT THE SEIZED DOCUMENTS BELON G TO A PERSON OTHER THAN THE SEARCHED PERSON. WE ARE AFRAID, THAT GOING THROUGH THE CONTENTS OF THE SATISFACTION NOTE, WE A RE UNABLE TO DISCERN ANY 'SATISFACTION' OF THE KIND REQUIRED UND ER SECTION 153C OF THE SAID ACT. THIS BEING THE POSITION THE VERY FIRST STEP PRIOR T O THE ISSUANCE OF A NOTICE UNDER SECTION153C OF THE SAID ACT HAS N OT BEEN FULFILLED. INASMUCH AS THIS CONDITION PRECEDENT HAS NOT BEEN MET, THE NOTICES UNDER SECTION 153C ARE LIABLE TO B E QUASHED. 3. HONBLE HIGH COURT OF DELHI IN THE CASE OF NIKKI DR UGS AND CHEMICALS PVT. LTD (64 TAXMANN.COM 309) HAS ALSO H ELD THAT: IT IS APPARENT FROM THE ABOVE THAT THE FIRST STEP FOR INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT IS FOR TH E ASSESSING OFFICER OF THE SEARCHED PERSON TO BE SATISFIED THAT THE ASSETS OR DOCUMENTS SEIZED DO NOT BELONG TO THE SEARCHED PERS ON BUT TO THE ASSESSEE SOUGHT TO BE ASSESSED UNDER SECTION 15 3C OF THE ACT. 4. HENCE THE ABOVE SATISFACTION NOTES RECORDED BEFORE ISSUANCE OF THE NOTICE UNDER SECTION 153C OF THE ACT DO NOT FULFIL THE PRECONDITION FOR INITIATION OF PROCEEDINGS UNDER THE ACT. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 18 EVEN OTHERWISE THE DOCUMENTS SEIZED FROM THE PREMIS ES OF SEARCHED PARTY DO NOT BELONG TO THE ASSESSEE 1. FOR INITIATING VALID PROCEEDINGS U/S 153C OF THE AC T, RECORDING OF CLEAR AND POSITIVE SATISFACTION THAT MONEY, BULLION , JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR DOCUMENTS OR BOOKS OF ACCOUNT ETC. SEIZED BELONG TO/BELONGS TO PERSON OTHER THAN SEARCHED PER SON, IS A SINE QUA NON REQUIREMENT. 2. IT IS A SETTLED LEGAL POSITION THAT THE SATISFACTIO N NOTE ITSELF MUST DISPLAY THE REASONS OR BASIS FOR THE CONCLUSION THA T THE ASSESSING OFFICER OF THE SEARCHED PERSON IS SATISFIED THAT TH E SEIZED DOCUMENTS BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON. 3. THE LD. AO DID NOT MENTION HOW THE SEIZED DOCUMENTS DO NOT BELONG TO THE PERSON SEARCHED BUT BELONG TO THE ASS ESSEE. 4. THE LD. AO IN THE SATISFACTION NOTE THROUGH A CHART PRESENTED THE DESCRIPTION OF THE SEIZED DOCUMENT. KINDLY REFER PAGE NO. 21C-21D OF THE PAPER BOOK. 5. THE ASSESSEE EXPLANATION WITH RESPECT TO THE SEIZED DOCUMENTS ARE TABULATED IN THE FOLLOWING CHART: ANNEXURE NO. PAGE NO. ASSESSEES EXPLANATION WHETHER THE DOCUMENT CAN BE SAID TO BE BELONGING TO THE ASSESSEE WHETHER PERTAINS TO THE ASSESSMENT YEAR IN QUESTION WHETHER THE SEIZED DOCUMENTS ARE INCRIMINATING OR SUGGEST ANY ESCAPEMENT OF INCOME A 2 47 1. THIS IS TH E TRIAL BALANCE OF THE ASSESSEE COMPANY FOR THE PERIOD NO NO NO I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 19 01.04.2012 TO 08.10.2012. 2. DOCUMENTS ALREADY RECORDED IN THE BOOKS OF THE ASSESSEE. HOWEVER THE COPY OF TRIAL BALANCE CANNOT BE SAID TO BE INCRIMINATING. 3. IT PERTAINS TO THE A.Y. 2013-14 AND DOES NOT PERTAIN TO THE ASSESSMENT YEAR IN QUESTION AND HAS NO CO-RELATION WITH THE ADDITION MADE BY THE LD. AO AND CANNOT BE SAID TO BE INCRIMINATING MATERIAL. COPY OF TRIAL BALANCE CANNOT BE SAID TO BELONGING TO THE ASSESSEE. THIS DOCUMENT PERTAIN S TO A.Y. 2013-14 SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. THE TRANSACTIONS IN THE SEIZED DOCUMENT HAVE ALREADY BEEN RECORDED IN THE BOOKS OF THE ASSESSEE COMPANY. THE LD. AO FAILED TO LINK THESE SEIZED DOCUMENTS WITH THE ADDITIONS. HIGH COURT OF DELHI SUNNY INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE A 4 1-20 1. THESE ARE THE COMPUTER PRINT-OUTS OF CASH-BOOK, BANK BOOK, JOURNALS AND TRIAL BALANCE OF THE ASSESSEE COMPANY FOR THE PERIOD 01.04.2011 TO 31.03.2012. NO THESE CANNOT BE SAID TO BELONGING TO THE ASSESSEE NO PERTAIN TO A.Y. 2012-13 SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. NO THE SEIZED DOCUMENT HAS NO RELEVANCE WITH THE ADDITIONS MADE AND CANNOT BE SAID TO BE INCRIMINATING DOCUMENTS. HIGH COURT OF DELHI SUNNY INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 20 A 6 11 - 35, 37, 39, 49-50, 53-78, 81-87, 95-96, 105, 106, 111- 117, 120, 122 1. ITR, COMPUTATION, BALANCE SHEET, CERTIFICATE OF INCORPORATION, INTIMATION, ASSESSMENT ORDER, BANK STATEMENTS, DIVIDEND ADVICE FROM PRAKASH, COMPUTER PRINT OF LEDGER ACCOUNT. 2. THESE DOCUMENTS ARE ALSO AVAILABLE IN PUBLIC DOMAIN. THESE STATUTORY DOCUMENTS CANNOT BE SAID TO BELONG TO THE ASSESSEE. 3. THE STATUTORY DOCUMENTS ALREADY AVAILABLE WITH THE DEPARTMENT CANNOT BE SAID TO BE INCRIMINATING AND HAVE NO RELEVANCE WITH THE ADDITIONS MADE BY THE LD. AO. NO ITR, BALANCE SHEETS ETC. STATUTORY DOCUMENTS ARE ALREADY AVAILABLE IN THE PUBLIC DOMAIN CANNOT BE SAID TO BE BELONGING TO THE ASSESSEE. YES EXCEPT FOR THE PAGE NO.S 54-68 WHICH ARE ITRS AND COMPUTATION OF THE ASSESSEE COMPANY NONE OF THE DOCUMENT PERTAINS TO THE ASSESSMENT YEAR IN QUESTION. SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. NO THE TRANSACTIONS IN THE SEIZED DOCUMENTS HAVE BEEN DULY RECORDED IN THE BOOKS OF THE ASSESSEE AND THERE IS NOTHING INCRIMINATING WHICH SUGGEST ANY ESCAPEMENT OF INCOME BY THE ASSESSEE. HIGH COURT OF DELHI SUNNY INFRAPROJECTSLTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE A 8 10-12 1. TRIAL BALANCE AND ACCOUNTING POLICIES FOR THE PERIOD 01.04.2011 TO 10.02.2012. NO NO DOCUMENTS PERTAIN TO A.Y. 2012-13 SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO NO THE TRANSACTIONS IN THE SEIZED DOCUMENTS HAVE ALREADY BEEN RECORDED IN THE BOOKS OF THE ASSESSEE COMPANY. THE LD. AO FAILED TO LINK THESE SEIZED DOCUMENTS WITH THE ADDITIONS. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 21 BE REOPENED. HIGH COURT OF DELHI SUNNY INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE A 12 28, 58 - 64, 81- 88 1. CERTIFIED COPY OF BOARD RESOLUTION, STATEMENT OF HOLDING AND PLEDGE MASTER REPORT YES NO A.Y. 2012-13 SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. NO THE TRANSACTIONS IN THE DOCUMENTS HAVE BEEN DULY RECORDED IN THE BOOKS OF THE ASSESSEE. THESE DOCUMENTS ARE NOT INCRIMINATING IN NATURE. EVEN OTHERWISE THE LD. AO DID NOT TAKE ANY COGNIZANCE OF THE DOCUMENTS WHILE MAKING ADDITIONS. HIGH COURT OF DELHI SUNNY INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE A 21 51-97 1. THIS IS THE UNDATED UNSIGNED BLANK CHEQUE BOOK OF ASSESSEE COMPANY. 2. THIS CANNOT BE RELATE TO ANY A.Y. AND HENCE CANNOT BE YES NO NOT PERTAINING TO ANY YEAR NO UNDATED, UNSIGNED CHEQUE BOOKS CANNOT BE SAID TO BE INCRIMINATING. HIGH COURT OF DELHI SUNNY I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 22 USED FOR INITIATING ASSESSMENT FOR ANY A.Y. SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE A 28 9 1. THIS DOCUMENT IS THE CERTIFIED TRUE COPY OF BOARD RESOLUTION DT. 12.09.2012 OF THE ASSESSEE COMPANY FOR ATTENDING AGM OF PRAKASH INDUSTRIES LTD. TO BE HELD ON 29.09.2012. 2. THE CERTIFIED COPY FOUND FROM THE PREMISES OF M/S PRAKASH INDUSTRIES CANNOT BE SAID TO BE BELONG TO THE ASSESSEE COMPANY. 3. THIS DOCUMENT HAS NO CO-RELATION WITH THE ADDITION MADE BY THE LD. AO AND CANNOT BE SAID TO BE INCRIMINATING MATERIAL. NO CERTIFIED COPY OF BOARD RESOLUTION CANNOT BE SAID TO BELONGING TO THE ASSESSEE. NOT PERTAINING TO ANY ASSESSMENT YEAR SUPREME COURT - SINGHAD TECHNICAL EDUCATION SOCIETY DOCUMENTS MUST RELATE TO THE A.Y. WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. NO THIS DOCUMENT HAVE NO FINANCIAL IMPACT AND CANNOT BE SAID TO BE INCRIMINATING. HIGH COURT OF DELHI SUNNY INFRAPROJECTS LTD: SEIZED MATERIAL MUST HAVE SOME NEXUS OR RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE 6. YOUR HONOURS, UNLESS THE ABOVE THREE CONDITIONS MEN TIONED IN THE ABOVE TABLE COMPLETES, THE LD. AO DOES NOT GET JURI SDICTION TO ISSUE NOTICE AND INITIATE PROCEEDINGS UNDER SECTION 153C OF THE ACT. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 23 7. THE DESCRIPTION OF THE ABOVE DOCUMENTS CLEARLY INDI CATES THAT THESE ARE THE STATUTORY DOCUMENTS ALREADY AVAILABLE IN PU BLIC DOMAIN. 8. IT IS A SETTLED LEGAL POSITION THAT THE TRIAL BALAN CE, ROC DATA, INCOME TAX RETURNS, BALANCE SHEETS AND OTHER STATUTORY DOC UMENTS WHICH ARE AVAILABLE IN PUBLIC DOMAIN CANNOT BE SAID TO BE LONGING TO THE ASSESSEE. FOR THE SAID PREPOSITION ASSESSEE RELIES UPON THE FOLLOWING DECISIONS OF HIGH COURTS: A. HONBLE HIGH COURT OF DELHI IN THE CASE OF NIKKI DRUGS AND CHEMICALS PVT. LTD (64 TAXMANN.COM 309) IT IS APPARENT FROM THE ABOVE THAT THE FIRST STEP F OR INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT IS FOR TH E ASSESSING OFFICER OF THE SEARCHED PERSON TO BE SATISFIED THAT THE ASSETS OR DOCUMENTS SEIZED DO NOT BELONG TO THE SEARCHED PERS ON BUT TO THE ASSESSEE SOUGHT TO BE ASSESSED UNDER SECTION 153C O F THE ACT. ONCE THE ASSESSING OFFICER OF THE SEARCHED PERSON I S SO SATISFIED, HE IS REQUIRED TO TRANSFER THE ASSETS OR DOCUMENTS, WH ICH HE BELIEVES BELONGS TO THE ASSESSEE, TO THE ASSESSING OFFICER H AVING JURISDICTION OVER THAT ASSESSEE. THE ASSESSING OFFICER OF THE AS SESSEE ON RECEIPT OF SUCH ASSET OR DOCUMENT SEIZED WOULD HAVE JURISDI CTION TO COMMENCE PROCEEDINGS UNDER SECTION 153C OF THE ACT. THE ASSESSING OFFICER HAS, THEREAFTER, TO APPLY HIS MIN D AS TO WHETHER THE ASSETS AND DOCUMENTS RECEIVED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF THE ASSESSEE AND IF HE IS SO SATISFIED THAT THE SAME HAVE A BEARING ON THE DETERMINATION OF THE INC OME OF THE ASSESSEE, HE HAS TO ISSUE NOTICE AND ASSESS OR REAS SESS THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVI SIONS OF SECTION 153A OF THE ACT. SECTION 153A OF THE ACT REQUIRES T HAT A NOTICE BE ISSUED TO THE PERSON SOUGHT TO BE ASSESSED, CALLING UPON THE SAID ASSESSEE TO FILE HIS RETURN OF INCOME IN RESPECT OF EACH YEAR FALLING WITHIN THE SPECIFIED SIX AYS. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 24 ..IN THE PRESENT CASE, ALTHOUGH THE PHOTOCOPIES OF THE DOCUMENTS HANDED OVER TO SVP BUILDERS INDIA LTD. MAY BE COPIE S OF THE ORIGINAL DOCUMENTS THAT BELONG TO THE ASSESSEE, THE SAID PHO TOCOPIES WOULD BELONG TO SVP BUILDERS INDIA LTD. AS THE SAME WERE HANDED OVER TO IT IN CONNECTION WITH THE INVESTMENT MADE BY THE AS SESSEE. SIMILARLY, A CERTIFIED COPY OF THE ASSESSEE'S RESOL UTION SIGNED BY ITS DIRECTORS, WOULD ALSO BELONG TO THE SVP BUILDERS IN DIA LTD. EVEN THOUGH THE MINUTES OF THE BOARD MEETING FORM A PART OF THE RECORD OF THE ASSESSEE. WE FIND NO INFIRMITY WITH THE VIEW TA KEN BY THE ITAT IN THIS REGARD. B. HONBLE HIGH COURT OF DELHI IN THE CASE OF CANY ON FINANCIAL SERVICES LTD (64 TAXMANN.COM 309) TURNING TO THE CASE AT HAND, THE FIRST DOCUMENT REF ERRED TO IN THE SATISFACTION NOTE OF THE AO OF THE SEARCHED PERSON IS AN APPLICATION MADE BY THE ASSESSEE FOR SUBSCRIPTION TO THE SHARES OF DEPL. BEING AN APPLICATION FOR SUBSCRIPTION OF EQUITY SHARES, I T IS A DOCUMENT FILLED UP BY THE ASSESSEE AND SUBMITTED TO DEPL. TH E SAID APPLICATION HAVING BEING FOUND IN THE POSSESSION OF THE SEARCHED PERSON SHOULD SAFELY BE PRESUMED TO BELONG TO THE S EARCHED PERSON BY VIRTUE OF SECTION 132 (4A) READ WITH SECTION 292 C OF THE ACT. DEPL, THERE IS ALSO PRESUMPTION THAT IT IN FACT BEL ONGS TO DEPL. THIS IS A REBUTTABLE PRESUMPTION. BUT REBUTTABLE AT THE INSTANCE OF THE SEARCHED PERSON. THE PRESUMPTION OPERATES IN FAVOUR OF THE DEPARTMEN T BY RELIEVING IT OF THE BURDEN OF HAVING TO DEMONSTRATE THAT THE AFOREMENTIONED DOCUMENT BELONGS TO THE DEPL. BUT HE RE THE DEPARTMENT SEEKS TO BE RELIEVED OF THE BURDEN OF DEMONSTRATING THAT THE SAID DOCUMENT IN FACT DOES N OT BELONG TO DEPL BUT TO THE ASSESSEE. THAT IS NOT POSSIBLE O N A COLLECTIVE READING OF SECTION 132 (4A) AND SECTION 292 C OF THE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 25 ACT. THESE PROVISIONS DO NOT DILUTE THE OBLIGATION ON THE DEPARTMENT AND IN PARTICULAR THE AO OF THE SEARCHED PERSON, UNDER SECTION 153 C (1) OF THE ACT AS IT STOOD PRIO R TO 1ST APRIL 2015 OF SHOWING THAT THE SEIZED DOCUMENT BELONGS TO THE OTHER PERSON (HERE, THE ASSESSEE) AND NOT THE SEARCHED PE RSON FROM WHOM IT WAS SEIZED. THE OTHER DOCUMENTS ARE COPIES OF FORM-32 OF THE AS SESSEE, COPIES OF THE RETURN OF INCOME OF THE ASSESSEE, COPY OF IT S DIRECTOR'S REPORT, COPY OF CERTIFICATE OF INCORPORATION AND MEMORANDUM OF ASSOCIATION. THESE WERE DOCUMENTS FURNISHED BY THE ASSESSEE TO D EPL AND FOUND IN THE POSSESSION OF DEPL. HERE, AGAIN, IT CA NNOT BE PRESUMED THAT SUCH DOCUMENTS HAVING BEING FOUND IN THE POSSESSION OF THE DEPL DID NOT BELONG TO DEPL BUT T O THE ASSESSEE. HERE AGAIN, WHILE THE DOCUMENTS MAY 'PERT AIN TO' THE ASSESSEE, BUT IN THE CONTEXT EXPLAINED ABOVE, THEY CANNOT BE PRESUMED TO BE DOCUMENTS THAT 'BELONGED TO' THE SEA RCHED PERSON. CONSEQUENTLY, EVEN WITH REGARD TO THESE DOCUMENTS, THE JURISDICTIONAL REQUIREMENT UNDER SECTION 153 C (1) OF THE ACT, OF THE AO OF THE SEARCHED PERSON HAVING TO BE SATISFIED TH AT THE SAID DOCUMENTS DO NOT BELONG TO SEARCHED PERSON BUT TO T HE ASSESSEE, HAS NOT BEEN FULFILLED. III. SEIZED DOCUMENT MUST PERTAIN TO THE ASSESSMENT YEAR FOR WHICH THE LD. AO HAD INITIATED THE PROCEEDINGS UNDE R SECTION 153C OF THE ACT. 1. YOUR HONOURS, HONBLE SUPREME COURT IN THE CASE OF CIT VS. SINGHAD TECHNICAL EDUCATION SOCIETY (84 TAXMANN.COM 290) HAS SETTLED THE ISSUE THAT THE SEIZED DOCUMENTS MUST BE INCRIMINATING AND MUST RELATE TO THE AYS WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED. THE RELEVANT PORTION OF THE JUDGEMENT OF APEX COURT IS AS UNDER: THE ITAT PERMITTED THIS ADDITIONAL GROUND BY GIVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE BASIS OF FAC TS ALREADY ON THE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 26 RECORD AND, THEREFORE, COULD BE RAISED. IN THIS BEH ALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASS ESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCU MENTS WHICH WERE SEIZED DID NOT ESTABLISH ANY CO-RELATION, DOCUMENT- WISE, WITH THESE FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROV ISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONING TO BE LOGICAL AND VALID, HAVING REGARD TO THE PROVISIONS OF SECTION 1 53C OF THE ACT. PARA 9 OF THE ORDER OF THE ITAT REVEALS THAT THE ITAT HAD SCANNED THROUGH THE SATISFACTION NOTE AND THE MATERIAL WHICH WAS DISCLO SED THEREINWAS CULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO A SSESSMENT YEAR 2004-05 OR THEREAFTER. 2. THEREFORE FOR ASSUMPTION OF VALID JURISDICTION FOR REOPENING THE CASE UNDER SECTION 153C OF THE ACT, THERE MUST BE SOME M ATERIAL FOUND DURING THE COURSE OF SEARCH WHICH PERTAINS TO THE A SSESSMENT YEAR IN QUESTION. 3. IN THE PRESENT CASE, YOUR HONOUR MAY KINDLY REFER T O A TABLE MENTIONED AT POINT NO. II OF THE SYNOPSIS WHEREIN DESCRIPTION OF THE SEIZED MATERIAL AND THE ASSESSMENT YEAR TO WHICH THEY PERT AIN HAS MENTIONED. 4. HOWEVER, THE LD. AO WHILE CONCLUDING HIS FINDING S ONLY RELIED UPON THE BLANK CHEQUE BOOK OF THE ASSESSEE FOUND FROM THE PR EMISES OF M/S PRAKASH INDUSTRIES. YOUR HONOURS BLANK UNDATED CHEQ UE BOOK DOES NOT PERTAIN TO ANY ASSESSMENT YEAR AND CANNOT BE MADE B ASIS FOR REOPENING OF ASSESSMENT UNDER SECTION 153C OF THE A CT. 5. YOU HONOUR MAY SEE THAT NONE OF THE DOCUMENT MENTIO NED IN THE SATISFACTION NOTE PERTAINS TO THE ASSESSMENT YEAR I N QUESTION EXCEPT FOR THE ITR, BALANCE SHEET AND ROC DATA OF WHICH EVEN O THERWISE IS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 27 AVAILABLE WITH THE DEPARTMENT AND NOT IN THE NATURE OF INCRIMINATING DOCUMENT. 6. HONBLE HIGH COURT OF DELHI IN THE CASE OF INDEX SECURITIES PVT. LTD. (86 TAXMANN.COM 84) HAS HELD THAT: IN THE PRESENT CASE, THE TWO SEIZED DOCUMENTS REFER RED TO IN THE SATISFACTION NOTE IN THE CASE OF EACH ASSESSEE ARE THE TRIAL BALANCE AND BALANCE SHEET FOR A PERIOD OF FIVE MONTHS IN 20 10. IN THE FIRST PLACE, THEY DO NOT RELATE TO THE AYS FOR WHICH THE ASSESSM ENTS WERE REOPENED IN THE CASE OF BOTH ASSESSEES. SECONDLY, THEY CANNO T BE SAID TO BE INCRIMINATING. EVEN FOR THE AY TO WHICH THEY RELATE D, I.E. AY 2011-12, THE AO FINALISED THE ASSESSMENT AT THE RETURNED INC OME QUA EACH ASSESSEE WITHOUT MAKING ANY ADDITIONS ON THE BASIS OF THOSE DOCUMENTS. CONSEQUENTLY EVEN THE SECOND ESSENTIAL R EQUIREMENT FOR ASSUMPTION OF JURISDICTION UNDER SECTION 153 C OF T HE ACT WAS NOT MET IN THE CASE OF THE TWO ASSESSEES. 7. IT HAS BEEN HELD THAT IN VARIOUS OTHER DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT AND OTHER HIGH COURT THAT THE SEIZED MAT ERIAL MUST RELATE TO THE ASSESSMENT YEAR IN QUESTION. A. HONBLE HIGH COURT OF DELHI IN THE CASE OF RRJ SECU RITIES (380 ITR 612) WHEREIN A RECORD SLIP OF CHEQUE BOOK WAS SEIZED WHI CH FORMED PART OF THE CHEQUE BOOK CONTAINING ENTRIES R ELATING TO A.Y. 2009-10 HAS HELD THAT: INSOFAR AS THE DOCUMENTS REFERRED TO AS PAGES 126 T O 179 OF ANNEXURE A-34 IS CONCERNED, ADMITTEDLY, THE SAME ON LY CONSISTED OF A SINGLE PAGE OF THE RECORD SLIP OF A CHEQUE BOOK A ND OTHER PAGES WERE BLANK. THE RECORD SLIP ONLY CONTAINED THREE EN TRIES REFLECTING ISSUE OF THREE CHEQUES ON 11TH AUGUST, 2008, 27TH A UGUST, 2008 AND 10TH DECEMBER, 2008 RESPECTIVELY. THUS, IT IS A PPARENT THAT THE SAID DOCUMENT HAD NO RELEVANCE FOR THE ASSESSMENT Y EARS IN I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 28 QUESTION I.E. AYS 2003-04 TO 2008-09. IN THE CIRCUMSTANCES, THE ISSUE TO BE ADDRESSED IS WHETHER PROCEEDINGS UNDER SECTION 153C OF THE ACT COULD BE INITIATED ON THE BASIS OF THIS DOCUMENT. THE RECORD SLIP BELONGS TO THE ASSESSEE AND, THEREF ORE, THE ACTION OF THE AO OF THE SEARCHED PERSONS RECORDING THAT THE S AME BELONGS TO THE ASSESSEE CANNOT BE FAULTED. HOWEVER, THE QUESTI ON THEN ARISES IS WHETHER THE AO OF THE ASSESSEE WAS JUSTIFIED IN TAKING FURTHER STEPS FOR REASSESSING THE INCOME OF THE ASSESSEE IN RESPECT OF THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS WERE CON CLUDED AND IN RESPECT OF WHICH THE SEIZED DOCUMENT HAD NO BEAR ING. IN OUR VIEW, THE SAME WOULD BE CLEARLY IMPERMISSIBLE AS TH E SEIZED MATERIAL NOW AVAILABLE WITH THE AO, ADMITTEDLY, HAD NO NEXUS WITH THOSE ASSESSMENTS AND WAS WHOLLY IRRELEVANT FOR THE PURPOSE OF ASSESSING THE INCOME OF THE ASSESSEE FOR THE YEARS IN QUESTION. MERELY BECAUSE A VALUABLE ARTICLE OR DOCUMENT BELON GING TO AN ASSESSEE IS SEIZED FROM THE POSSESSION OF A PERSON SEARCHED UNDER SECTION 132 OF THE ACT, DOES NOT MEAN THAT THE CONC LUDED ASSESSMENTS OF THE ASSESSEE ARE NECESSARILY TO BE R E-OPENED UNDER SECTION 153C OF THE ACT. IN OUR VIEW, THE CON CLUDED ASSESSMENTS CANNOT BE INTERFERED WITH MECHANICALLY AND SOLELY FOR THE REASON THAT A DOCUMENT BELONGING TO THE ASSESSE E, WHICH HAS NO BEARING ON THE ASSESSMENTS OF THE ASSESSEE FOR T HE YEARS PRECEDING THE SEARCH, WAS SEIZED FROM THE POSSESSIO N OF THE SEARCHED PERSONS. AS INDICATED ABOVE, IN THE PRESENT CASE, THE DOCUMENTS SEIZED HAD NO RELEVANCE OR BEARING ON THE INCOME OF THE AS SESSEE FOR THE RELEVANT ASSESSMENT YEARS AND COULD NOT POSSIBL Y REFLECT ANY UNDISCLOSED INCOME. THIS BEING THE UNDISPUTED P OSITION, NO INVESTIGATION WAS NECESSARY. THUS, THE PROVISION S OF SECTION 153C, WHICH ARE TO ENABLE AN INVESTIGATION IN RESPE CT OF THE SEIZED ASSET, COULD NOT BE RESORTED TO; THE AO HAD NO JURISDICTION TO MAKE THE REASSESSMENT UNDER SECTION 153C OF THE ACT. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 29 B. HONBLE DELHI HIGH COURT IN THE CASE OF ARN INFRAST RUCTURE INDIA LTD. (81 TAXMANN.COM 260) HAS HELD THAT: AS REGARDS THE OTHER DOCUMENT SEIZED, AND MENTIONED IN THE SATISFACTION NOTE VIZ., THE EXTRACT OF THE LEDGER A CCOUNT MAINTAINED BY THE PETITIONER CONCERNING THE PAYMENTS OF COMMIS SION MADE BY IT TO RGEPL, EVEN IF IT IS HELD TO 'BELONG' TO THE PET ITIONER, IT COULD HARDLY BE SAID TO BE AN 'INCRIMINATING' DOCUMENT. T HIS WAS A DOCUMENT RELEVANT ONLY FOR THE AY 2010-11. IT COULD NOT HAVE BEEN USED FOR RE-OPENING THE ASSESSMENTS OF THE EARLIER YEARS I.E. AYS 2007-08 TO AY 2009-10, 2011-12 AND 2012-13. THIS PO SITION AGAIN STANDS SETTLED BY THE DECISION IN RRJ SECURITIES LT D (SUPRA). THE FACT THAT THE REVENUE'S SLP AGAINST THE SAID DECISION IS PENDING IN THE SUPREME COURT DOES NOT MAKE A DIFFERENCE SINE THE O PERATION OF THE SAID DECISION HAS NOT BEEN STAYED. C. HONBLE HIGH COURT OF DELHI IN THE CASE OF REFAM MA NAGEMENT SERVICES PVT. LTD. (80 TAXMANN.COM 281) HAS HELD TH AT: IT IS APPARENT FROM THE ABOVE THAT THE ONLY DOCUMEN T SEIZED DURING THE SEARCH IN QUESTION WAS A CHEQUE BOOK PERTAINING TO THE ASSESSEE WHICH REFLECTED ISSUE OF CHEQUES DURING TH E PERIOD AUGUST 2008 TO OCTOBER 2008, RELEVANT TO THE AY 2009-10. THE FACTS AND THE QUESTIONS OF LAW THAT ARISE IN THESE APPEALS AR E SIMILAR TO THE FACTS AND THE CONTROVERSY INVOLVED IN RRJ SECURITIE S LTD. (SUPRA). THUS, FOR THE REASONS STATED IN RRJ SECURITIES LTD. (SUPRA), THE THIRD QUESTION FRAMED, WHETHER THE PROCEEDINGS UNDER SECT ION 153C OF THE ACT COULD BE INITIATED AGAINST THE ASSESSEE, IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IV. WHERE THE DOCUMENTS SEIZED HAD NO RELEVANCE OR BEARING ON THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS, THE AO I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 30 HAS NO JURISDICTION TO MAKE REASSESSMENT OF THAT YE AR UNDER SECTION 153C OF THE ACT IN ABSENCE OF ANY INCRIMINATING DOC UMENT 1. DOCUMENTS FOUND AND SEIZED FROM THE PREMISES OF M/S PRAKASH INDUSTRIES PERTAINING TO THE ASSESSEE COMPANY ARE TABULATED AT POINT NO. II . 2. ON THE BASIS OF SEIZED DOCUMENTS THE LD. AO HAD MADE THE ASSESSMENT UNDER SECTION 153C OF THE ACT AND MADE A DDITION OF RS. 23.46 CR. BEING THE SHARE CAPITAL AND UNEXPLAINED I NVESTMENTS OUT OF WHICH ADDITION OF RS. 77.85 WAS MADE ON PROTECTIVE BASIS. 3. YOUR HONOURS, SEIZED DOCUMENTS WERE THE ITR AND AUDITED BALANCE SHEETS OF THE ASSESSEE COMPANY WHICH WERE A LREADY FILED WITH THE INCOME TAX DEPARTMENT. NO NEW INFORMATION WAS C OMING OUT FROM THE SEIZED DOCUMENTS. 4. EVEN OTHERWISE THE LD. AO HAS NOT ESTABLISHED AN Y LINK OF ADDITIONS MADE WITH THE SEIZED MATERIAL. THE SEIZED MATERIAL HAS NO NEXUS WITH THE ADDITIONS MADE BY THE LD. AO. 5. THE LEGAL POSITION SETTLED BY THE HONBLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA (2012) (61 TAXMANN.COM 412 ) IS THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE AO DOES NOT HAVE ANY JURISDICTION TO INTERFERE IN CONCLUDED ASSESSMENTS. 6. THE AFORESAID PRINCIPLES WOULD BE EQUALLY APPLIC ABLE TO PROCEEDINGS INITIATED UNDER SECTION 153C OF THE ACT AS SECTION 153C(1) OF THE ACT EXPRESSLY PROVIDES THAT ONCE THE AO HAS RECEIVED 'MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR TH ING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED' FROM THE AO OF THE SEARCHED PERSO N, HE WOULD PROCEED TO ASSESS OR REASSESS THE INCOME OF THE PER SON TO WHOM SUCH ASSETS/BOOKS BELONG IN ACCORDANCE WITH SECTION 153A OF THE ACT. THIS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 31 HAS BEEN HELD BY THE HONBLE HIGH COURT OF DELHI IN THE CASE OF RRJ SECURITIES LTD.(380 ITR 612) THAT AS EXPRESSLY INDICATED UNDER SECTION 153C OF THE ACT THE ASSESSMENT OR REASSESSMENT OF I NCOME OF A PERSON OTHER THAN A SEARCHED PERSON WOULD PROCEED IN ACCOR DANCE WITH THE PROVISIONS OF SECTION 153A OF THE ACT. THE CONCLUDE D ASSESSMENTS CANNOT BE INTERFERED WITH UNDER SECTION 153A OF THE ACT UNLESS THE INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE HA S BEEN SEIZED. MERELY BECAUSE A VALUABLE ARTICLE OR DOCUMENT BELON GING TO AN ASSESSEE IS SEIZED FROM THE POSSESSION OF A PERSON SEARCHED UNDER SECTION 132 OF THE ACT, DOES NOT MEAN THAT THE CONCLUDED ASSESSMEN TS OF THE ASSESSEE ARE NECESSARILY TO BE RE-OPENED UNDER SECTION 153C OF THE ACT. IN OUR VIEW, THE CONCLUDED ASSESSMENTS CANNOT BE INTERFERE D WITH MECHANICALLY AND SOLELY FOR THE REASON THAT A DOCUMENT BELONGING TO THE ASSESSEE, WHICH HAS NO BEARING ON THE ASSESSMENTS OF THE ASSE SSEE FOR THE YEARS PRECEDING THE SEARCH, WAS SEIZED FROM THE POSSESSIO N OF THE SEARCHED PERSONS. AS INDICATED ABOVE, IN THE PRESENT CASE, THE DOCUMENTS SEIZED HAD NO RELEVANCE OR BEARING ON THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS AND COULD NOT POSSIBLY REFLECT ANY UNDISCLOSED INCOME. THIS BEING THE UNDISPUTED POSITION, NO INVE STIGATION WAS NECESSARY. THUS, THE PROVISIONS OF SECTION 153C, WH ICH ARE TO ENABLE AN INVESTIGATION IN RESPECT OF THE SEIZED AS SET, COULD NOT BE RESORTED TO; THE AO HAD NO JURISDICTION TO MAKE THE REASSESSMENT UNDER SECTION 153C OF THE ACT. 7. AS PER PROVISO TO SECTION 153C OF THE ACT PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REF ERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SECTION ( 1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECE IVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIO NED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON: I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 32 8. BY VIRTUE OF SECOND PROVISO TO SECTION 153A, THE ASSESSMENT/REASSESSMENT PENDING ON THE DATE OF INIT IATION OF SEARCH ABATE. IN THE CONTEXT OF PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE REFERENCE TO THE DATE OF INITIATION OF THE SEAR CH IN THE SECOND PROVISO TO SECTION 153A HAS TO BE CONSTRUED AS THE DATE ON WHICH THE AO RECEIVES THE DOCUMENTS OR ASSETS FROM THE AO OF THE SEARCHED PERSON. THUS, BY VIRTUE OF SECOND PROVISO TO SECTION 153A OF THE ACT AS IT APPLIES TO PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE ASSESSMENT/REASSESSMENT PENDING ON THE DATE ON WHIC H THE ASSETS/DOCUMENTS ARE RECEIVED BY THE AO WOULD ABATE . 9. SINCE IN THE PRESENT CASE THE LD. AO OF HAS NOT SPECIFIED THE DATE OF HANDING OVER THE MATERIAL, THE DATE OF RECORDING OF SATISFACTION BY THE LD. AO I.E, 22.12.2014 WOULD BE TREATED AS DATE OF HANDING OVER OF MATERIAL. 10. THEREFORE THE ASSESSMENT YEAR IN QUESTION IS CO MPLETED ASSESSMENT YEAR ON THE DATE OF HANDING OVER OF MATE RIAL BY THE AO OF THE SEARCHED PERSON TO THE AO OF THE ASSESSEE COMPANY I .E, ON 19.09.2014. DETAILS OF WHICH ARE AS UNDER: ASSESSMENT YEAR DATE OF FILING OF RETURN NOTICE U/S 143(2) ISSUED BEFORE ASSESSMENT ORDER UNDER SECTION 143(3) PASSED ON 2009-10 29.09.2009 30.09.2010 12.12.2011 ASSESSMENT ORDER ATTACHED AT PAGE NO. 56- 57 OF THE PAPER BOOK 11. AFTER COMPLETION OF ASSESSMENT UNDER SECTION 14 3(3) THE ASSESSEE DID NOT RECEIVE ANY NOTICE UNDER SECTION 148 OF THE ACT IN RESPECT OF ASSESSMENT YEAR IN QUESTION. HENCE ASSESSMENT YEAR UNDER I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 33 CONSIDERATION IS COMPLETED ASSESSMENT YEAR ON THE D ATE OF HANDING OVER OF MATERIAL. 12. THEREFORE THE ASSESSMENT YEAR IN QUESTION CAN O NLY BE INTERFERED IF ANY INCRIMINATING MATERIAL IS FOUND BELONGING TO THE ASSESSEE DURING THE COURSE OF SEARCH ON THE PERSON SEARCHED. 13. HONBLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA 61 TAXMANN.COM 412 HAS ALSO EXPLAINED THE MEANING OF INCRIMINATING MATERIAL COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY TH E AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON T HE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR P ROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. 14. IN THE PRESENT CASE DOCUMENTS SEIZED BY THE DEP ARTMENT RELATING TO THE ASSESSMENT YEAR IN QUESTION ARE THE INCOME T AX RETURNS, AUDITED BALANCE SHEETS AND ROC DATA OF THE ASSESSEE COMPANY . ALL THESE STATUTORY DOCUMENTS ARE PUBLIC DOCUMENTS AND AVAILA BLE IN PUBLIC DOMAIN AND ARE ALREADY AVAILABLE WITH THE DEPARTMENT. NONE OF SUCH DOCUMENT SEIZED FROM THE PREMISES OF PRAKASH INDUSTRIES IS O F NATURE WHICH IS ALREADY NOT AVAILABLE WITH THE INCOME TAX DEPARTMEN T. 15. FURTHERMORE, THE LD. AO WHILE MAKING ADDITIONS NOT RELIED UPON THE MATERIAL REFERRED INTO THE SATISFACTION NOTE. T HE ADDITIONS WERE MADE SOLELY ON THE BASIS OF THE STATEMENTS OF THE SEARCH ED PERSONS WHICH WERE LATER-ON RETRACTED. A. HONBLE HIGH COURT OF DELHI IN THE CASE OF SUNNY INFRAPROJECTS LTD. ITA NO. 502 OF 2016 ON THE SIMILAR FACTS HAS HELD THAT: IN THAT VIEW OF THE MATTER, THE COURT IS NOT ANSWER ING THE OTHER ASPECTS CONCERNING THE VALIDITY OF THE INITIATION OF THE PR OCEEDINGS UNDER SECTION I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 34 153C OF THE ACT AND, IN PARTICULAR, WHETHER THE MAT ERIAL WHICH MAY BE RELEVANT TO THE YEAR OF THE SEARCH COULD JUSTIFY TH E RE-OPENING OF THE ASSESSMENT FOR THE ASSESSMENTS OF THE EARLIER YEARS AS WAS DONE IN THE PRESENT CASE. THE COPY OF THE SATISFACTION NOTE PREPARED BY THE A O OF THE ASSESSEE REFERS TO THE INCRIMINATING DOCUMENTS/PAPERS WHICH WERE SEIZED DURING THE SEARCH AND SEIZURE ACTION IN THE CASE OF THE MI NDA GROUP. THESE DOCUMENTS ARE COPIES OF THE BALANCE SHEET ABSTRACTS AND COMPANY S GENERAL PROFILE, BALANCE SHEET, PROFIT AND LOSS ACC OUNT, AUDITOR S ACCOUNT, COPIES OF INCOME TAX RETURNS AND COPY OF TRIAL BALA NCES. APART FROM THE ABOVE, THERE WAS NO OTHER MATERIAL R EFERRED TO THAT COULD GIVE RISE TO THE BELIEF ABOUT INCOME HAVING ESCAPED ASSESSMENT. EACH OF THE ABOVE DOCUMENTS WAS ALREADY AVAILABLE WITH THE AO WHEN THE INITIAL ASSESSMENTS WERE FINALISED UNDER SECTION 143(3) OF THE ACT. THE COURT ENQUIRED FROM MR. SHIVPURI WHETHER, IN FACT, THERE WAS ANY NEW OR FRESH MATERIAL WHICH COULD FORM THE BASIS FOR THE AO FOR RE-OPENING THE ASSESSMENTS. MR. SHIVPURI SUBMITTED THAT THE TRIAL BALANCES WERE NOT AVAILABLE EARLIER. HOWEVER, HE COULD NOT DENY THAT IT IS THESE VERY TRIAL BALANCES THAT LED TO THE PREPARATION OF THE BALANCE SHEET, WHICH WERE ALREADY AVAILABLE WITH THE AO AND THAT THERE WAS NO NEW INFORMATION CONTAINED IN THE TRIAL BALANCE WHICH JUSTIFIED THE ADDITIONS. CONSEQUENTLY, THE COURT IS OF THE VIEW THAT THE ABO VE DOCUMENTS COULD NOT CONSTITUTE INCRIMINATING MATERIAL WHICH COULD J USTIFY THE MAKING OF THE ADDITIONS IN EXERCISE OF THE POWERS UNDER SECTION 1 53C OF THE ACT. IT HAS BEEN REPEATEDLY STRESSED BY THIS COURT IN SEVERAL J UDGMENTS INCLUDING CIT V. ANIL KUMAR BHATIA 352 ITRA 493 (DEL.); CIT V . KABUL CHAWLA 380 ITR 573 (DEL.); DAYAWANTI THROUGH LEGAL HEIR SUNITA GUPTA V. CIT (2016) 390 ITR 496 (DEL.) AND CIT-VII V. RRJ SECURITIES LI MITED (2016) 380 ITR 612 THAT THE SEIZED MATERIAL MUST HAVE SOME NEXUS O R RELEVANCE TO THE ADDITIONS SOUGHT TO BE MADE AND MUST BE RELEVANT FO R THE BELIEF FORMED REGARDING INCOME HAVING ESCAPED ASSESSMENT. AS FAR AS THE PRESENT CASES ARE CONCERNED, THE DOCU MENTS AND MATERIAL SEIZED ARE ONLY THE BALANCE SHEET, AUDIT REPORTS ET C., WHICH DID NOT REFLECT I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 35 ANY INCOME THAT WAS NOT ALREADY DISCLOSED WHEN THE ASSESSMENTS WERE FINALISED INITIALLY UNDER SECTION 143(3) OF THE ACT . THIS BY ITSELF IS SUFFICIENT TO DELETE THE ADDITIONS SUSTAINED BY THE CIT (A). C ONSEQUENTLY, THE ITAT WAS NOT IN ERROR IN ORDERING SUCH DELETION. B. HONBLE HIGH COURT OF DELHI IN THE CASE OF SSP A VIATION LTD. (20 TAXMANN.COM 214) HAS HELD THAT: THE DECISION IN SSP AVIATION LTD. (SUPRA) CANNOT BE UNDERSTOOD TO MEAN THAT THE AO HAS THE JURISDICTION TO MAKE A RE-ASSEM ENT IN EVERY CASE, WHERE SEIZED ASSETS OR DOCUMENTS ARE HANDED OVER TO THE AO. THE QUESTION WHETHER THE DOCUMENTS/ASSETS SEIZED COULD POSSIBLY REFLECT ANY UNDISCLOSED INCOME HAS TO BE CONSIDERED BY THE AO A FTER EXAMINING THE SEIZED ASSETS/DOCUMENTS HANDED OVER TO HIM. IT IS O NLY IN CASES WHERE THE SEIZED DOCUMENTS/ASSETS COULD POSSIBLY REFLECT ANY UNDISCLOSED INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS, THAT FURTHER ENQUIRY WOULD BE WARRANTED IN RESPECT OF THOSE YEAR S. WHILST, IT IS NOT NECESSARY FOR THE AO TO BE SATISFIED THAT THE ASSET S/DOCUMENTS SEIZED DURING SEARCH OF ANOTHER PERSON REFLECT UNDISCLOSED INCOME OF AN ASSESSEE BEFORE COMMENCING AN ENQUIRY UNDER SECTION 153C OF THE ACT, IT WOULD BE IMPERMISSIBLE FOR HIM TO COMMENCE SUCH ENQUIRY IF IT IS APPARENT THAT THE DOCUMENTS/ASSETS IN QUESTION HAVE NO BEARING ON THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS. C. HONBLE HIGH COURT OF DELHI IN THE CASE OF RRJ SECU RITIES LTD. 62 TAXMANN.COM 391 HAS HELD THAT: THE DOCUMENTS SEIZED HAD NO RELEVANCE OR BEARING ON THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS AND COUL D NOT POSSIBLY REFLECT ANY UNDISCLOSED INCOME. THIS BEING THE UNDI SPUTED POSITION, NO INVESTIGATION WAS NECESSARY. THUS, THE PROVISIONS O F SECTION 153C, WHICH ARE TO ENABLE AN INVESTIGATION IN RESPECT OF THE SE IZED ASSET, COULD NOT BE RESORTED TO; THE AO HAD NO JURISDICTION TO MAKE THE REASSESSMENT UNDER SECTION 153C OF THE ACT. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 36 D. HONBLE HIGH COURT OF DELHI IN THE CASE OF INDEX SE CURITIES PVT. LTD. (86 TAXMANN.COM 84) IN THE PRESENT CASE, THE TWO SEIZED DOCUMENTS REFER RED TO IN THE SATISFACTION NOTE IN THE CASE OF EACH ASSESSEE ARE THE TRIAL BALANCE AND BALANCE SHEET FOR A PERIOD OF FIVE MONTHS IN 2010. IN THE FIRST PLACE, THEY DO NOT RELATE TO THE AYS FOR WHICH THE ASSESSMENTS WERE REOPENED IN THE CASE OF BOTH ASSESSEES. SECONDLY, THEY CANNOT BE SA ID TO BE INCRIMINATING. EVEN FOR THE AY TO WHICH THEY RELATE D, I.E. AY 2011-12, THE AO FINALISED THE ASSESSMENT AT THE RETURNED INCOME QUA EACH ASSESSEE WITHOUT MAKING ANY ADDITIONS ON THE BASIS OF THOSE DOCUMENTS. CONSEQUENTLY EVEN THE SECOND ESSENTIAL REQUIREMENT FOR ASSUMPTION OF JURISDICT ION UNDER SECTION 153 C OF THE ACT WAS NOT MET IN T HE CASE OF THE TWO ASSESSEES. E. HONBLE HIGH COURT OF DELHI IN THE CASE OF ARN INFR ASTRUCTURE INDIA LTD. (81 TAXMANN.COM 260) WHILE EXAMINING THE DOCUMENTS HAS HELD THAT: THE LEDGER ACCOUNT EXTRACT MAY BE RELEVANT FOR ASSE SSMENT YEAR 2010-11, IT CANNOT BE SAID TO BE INCRIMINATING MATERIAL WARR ANTING RE-OPENING OF THE ASSESSMENT. THE RETURN ORIGINALLY FILED BY THE PETI TIONER FOR THE SAID ASSESSMENT YEAR 2010-11 WAS PICKED UP FOR SCRUTINY AND FINALISED BY AN ASSESSMENT ORDER UNDER SECTION 143(3). THE PAYMENTS OF COMMISSION TO RGEPL AS REFLECTED IN THE LEDGER ACCOUNT WAS ALREAD Y DISCLOSED IN THE PETITIONER'S ACCOUNTS WHICH WERE EXAMINED WHILE FIN ALISING THE REGULAR ASSESSMENT. THEREFORE, THE LEDGER ACCOUNT COULD NOT HAVE LED THE ASSESSING OFFICER TO BE SATISFIED THAT ANY INCOME H AD ESCAPED ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11. [ PARA 18] F. HONBLE HIGH COURT OF DELHI IN THE CASE OF RAJEE V BEHL (99 TAXMANN.COM 425) HAS HELD THAT: I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 37 THE ASSESSING OFFICER VIRTUALLY REAPPRECIATED THE M ATERIALS AND DOCUMENTS THAT WERE PART OF THE RECORD FILED BY THE ASSESSEE. A PLAIN READING OF THE ASSESSMENT ORDER WOULD SHOW THAT NO ATTEMPT WAS MAD E BY THE ASSESSING OFFICER TO CONNECT THE FRESH MATERIAL AND HOW IT POINTED OUT TO ANY CONCEALED INCOME OR LED TO ANY CONCEALED INCOME . THE ENTIRE RELIANCE UPON THE EXISTING DOCUMENTS THAT WERE DISC LOSED ONLY REINFORCED THAT KABUL CHAWLA (SUPRA) AND ITS REASONING WAS APP ROPRIATELY APPLIED. FOR THESE REASONS, THE COURT IS OF THE OPINION THAT THE INCOME-TAX APPELLATE TRIBUNAL'S REASONS ARE SOUND ON THE QUEST ION OF APPLICABILITY OF KABUL CHAWLA (SUPRA) AND THE ADDITIONS MADE IN THES E CIRCUMSTANCES COULD NOT HAVE BEEN SUSTAINED. G. HONBLE HIGH COURT OF DELHI IN THE CASE OF PCIT VS. DREAMCITYBUILDWELLPVT. LTD. (417 ITR 617) HAS HELD THAT: IN THE PRESENT CASE, THE REVENUE IS SEEKING TO RELY ON THREE DOCUMENTS TO JUSTIFY THE ASSUMPTION OF JURISDICTION UNDER SEC TION 153 C OF THE ACT AGAINST THE ASSESSEE. TWO OF THEM, VIZ., THE LICENC E ISSUED TO THE ASSESSEE BY THE DTCP AND THE LETTER ISSUED BY THE D TCP PERMITTING IT TO TRANSFER SUCH LICENCE, HAVE NO RELEVANCE FOR THE PU RPOSES OF DETERMINING ESCAPEMENT OF INCOME OF THE ASSESSEE FOR THE AYS IN QUESTION. CONSEQUENTLY, EVEN IF THOSE TWO DOCUMENTS CAN BE SA ID TO 'BELONG' TO THE ASSESSEE THEY ARE NOT DOCUMENTS ON THE BASIS OF WHI CH JURISDICTION CAN BE ASSUMED BY THE AO UNDER SECTION 153C OF THE ACT. 15. THUS, LD. COUNSEL SUBMITTED THAT THE ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ORDERS ARE NOT BASED ON INCRIMINATING SEIZED MATERIAL AND THEREFORE THE LD. CIT(A) HAS RIGHTLY DELETED THE SAID ADDITION. 16. ON THE OTHER HAND, LD. CIT-DR HAD GIVEN FOLLOWI NG WRITTEN SUBMISSION. I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 38 MAY IT PLEASE YOUR HONOURS SUB: WRITTEN SUBMISSION IN THE ABOVE CASES - REG. I) IN SUPPORT OF THE CLAIM OF THE REVENUE THAT ASSE SSMENT U/S 153A/153C NEED NOT NECESSARILY BE BASED ON INCRIMIN ATING MATERIAL ON THE BASIS OF VARIOUS DECISIONS OF HONBLE JURISD ICTIONAL HIGH COURT OF DELHI/ OTHER HIGH COURTS AND HONBLE ITAT DELHI HIGHLIGHTS OF THE CASE OF ANIL KUMAR BHATIA 24 TAXM ANN.COM 98 DATED 07.08.2012 OF HONBLE DELHI HIGH COURT (PAGE NO. 23 TO 26 OF PAPER BOOK NO. 2) DISCUSSION OF AMENDMENT IN THE ACT WITH EFFECT FROM 01.06.2003 AND INTRODUCTION OF NEW SECTION 153A AND CIRCULAR NO. 7 /2003 OF CBDT IN PARA 17 OF THE ORDER. JURISDICTION OF ASSESSING OFFICER U/S 153A AND PROC EDURE THEREON A PERUSAL OF SECTION 153A SHOWS THAT IT STARTS WIT H A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHIC H IS COVERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER 31.5.2003. THESE SECTIONS, THE APPLICABILITY OF WHICH HAS BEEN EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSES SMENT PROVISIONS. PRIOR TO, THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS CHAPTER XIV- B OF THE ACT WHICH TOOK CARE OF THE ASSESSMENT TO B E MADE IN CASES OF SEARCH AND SEIZURE. SUCH AN ASSESSMENT WAS POPULARL Y KNOWN AS 'BLOCK ASSESSMENT' BECAUSE THE CHAPTER PROVIDED FOR A SING LE ASSESSMENT TO BE MADE IN RESPECT OF A PERIOD OF A BLOCK OF TEN ASSES SMENT YEARS PRIOR TO THE ASSESSMENT YEAR IN WHICH THE SEARCH WAS MADE. I N ADDITION TO THESE TEN ASSESSMENT YEARS, THE BROKEN PERIOD UP TO THE D ATE ON WHICH THE SEARCH WAS CONDUCTED WAS ALSO INCLUDED IN WHAT WAS KNOWN AS 'BLOCK PERIOD'. THOUGH A SINGLE ASSESSMENT ORDER WAS TO BE PASSED, THE UNDISCLOSED INCOME WAS TO BE ASSESSED IN THE DIFFER ENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HAD TO BE M ADE IN A SINGLE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 39 ASSESSMENT ORDER. THE BLOCK ASSESSMENT SO MADE WAS INDEPENDENT OF AND IN ADDITION TO THE NORMAL ASSESSMENT PROCEEDING S AS CLARIFIED BY THE EXPLANATION BELOW SECTION 158BA(2). AFTER THE INTRO DUCTION OF THE GROUP OF SECTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT WAS GIVEN A GO-BY. UNDER THE NEW SECTION 153A, IN A CASE WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR REQUISITIO N OF BOOKS OF ACCOUNT, DOCUMENTS OR ASSETS IS MADE UNDER SECTION 132A AFTE R 31.5.2003, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICES CALLI NG UPON THE SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSESSMENT YE ARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH THE SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. THE O THER DIFFERENCE IS THAT THERE IS NO BROKEN PERIOD FROM THE FIRST DAY O F APRIL OF THE FINANCIAL YEAR IN WHICH THE SEARCH TOOK PLACE OR THE REQUISIT ION WAS MADE AND ENDING WITH THE DATE OF SEARCH/REQUISITION. UNDER S ECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE AO IS REQUIRED TO EXER CISE THE NORMAL ASSESSMENT POWERS IN RESPECT OF THE PREVIOUS YEAR I N WHICH THE SEARCH TOOK PLACE. (PARA 18) ASSESSING OFFICER IS BOUND TO ISSUE NOTICES TO THE ASSESSEE TO FURNISH RETURNS FOR 6 ASSESSMENT YEARS. ASSESSING OFFICER I S EMPOWERED TO ASSESS OR RE-ASSESS THE TOTAL INCOME INCLUDING UNDI SCLOSED INCOME OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 153A, AS WE HAVE A LREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHE R SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EM POWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSES SING OFFICER HAS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 40 BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOT AL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER I N RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOS ED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX.(PARA 1 9) ASSESSING OFFICER IS EMPOWERED TO REOPEN THE PROCEE DINGS U/S 143(1)(A) OR U/S 143(3) TO RE-ASSESS THE TOTAL INCO ME, TAKING NOTE OF THE UNDISCLOSED INCOME , IF ANY. THE ASSESSING OFFICER IS ENTRUSTED WITH THE DUTY OF BRINING TO TAX THE TOTAL INCOME OF AN ASSES SEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING RE-ASSESSME NTS A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO B E ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 14 3(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN E XISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF TH E SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROC EEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDIS CLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO AS SUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, H AVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB S ECTION (1) OF SECTION 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS A LSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 15 1 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BE EN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCR IBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH A LL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTIO N 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTA L INCOME OF AN ASSESSEE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 41 WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKI NG REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE.(PARA 20) THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY T HE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE TOTAL INCOME OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIAT ED NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEA RS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, TH E SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A SAYS THA T SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR M ULTIPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSE SSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSE SSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIAT ED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SA ME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDI NG THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE S EARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE T OTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FO R ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH AR E PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEEDINGS A BATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PAS S ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETER MINING I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 42 THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUD E BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISH ED BY THE ASSESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POS ITION THUS EMERGING IS THAT WHERE ASSESSMENT OR REASSESSM ENT PROCEEDINGS ARE PENDING COMPLETION WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE M AKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL IN COME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASES WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETE D AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS ARE SUBSIST ING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE , THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS A RE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OF FICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MAD E (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVI SIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 14 7, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE . SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 15 3A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT , WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSM ENT ORDER AND THE INCOME THAT ESCAPED ASSESSMENT ARE CL UBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT WERE PEN DING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED O R THE REQUISITION WAS MADE.(PARA 21) IN THE LIGHT OF OUR DISCUSSION, WE FIND IT DIFFICU LT TO UPHOLD THE VIEW OF THE TRIBUNAL EXPRESSED IN PARA 9.6 OF ITS ORDER THAT SI NCE THE RETURNS OF I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 43 INCOME FILED BY THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDERATION BEFORE THE SEARCH TOOK PLACE WERE PROCESSED UNDER S ECTION 143(1)(A) OF THE ACT, THE PROVISIONS OF SECTION 153A CANNOT BE I NVOKED. THE ASSESSING OFFICER HAS THE POWER UNDER SECTION 153A TO MAKE ASSESSMENT FOR ALL THE SIX YEARS AND COMPUTE THE TO TAL INCOME OF THE ASSESSEE, INCLUDING THE UNDISCLOSED INCOME, NOTWITH STANDING THAT THE ASSESSEE FILED RETURNS BEFORE THE DATE OF SEARCH WH ICH STOOD PROCESSED UNDER SECTION 143(1) (A).(PARA 22) HIGHLIGHTS OF THE CASE OF FILATEX INDIA LTD., ITA N O. 269/2014 AND CM NO. 10077/2014 DATED 14.07.2014 OF HONBLE DELHI HI GH COURT (PAGE 19 TO 29 OF PAPER BOOK NO. 1) THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE O F FILATEX INDIA LTD. (269/2014 AND CM NO. 10077/2014) BY HONBLE DELHI H IGH COURT VIDE ORDER DATED 14-07-2014. THE QUESTION OF LAW REFERRED BEFORE HONBLE DELHI H IGH COURT IN THIS CASE IS AS UNDER :- WHETHER THE TRIBUNAL ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT RE- COMPUTATION OF BOOK PROFIT, DE-HORS ANY MATERIAL FO UND DURING THE COURSE OF SEARCH, IN THE ORDER PASSED UNDER SECTION 153A O F THE ACT WAS WITHOUT JURISDICTION, BEING OUTSIDE THE SCOPE OF PROCEEDING S UNDER THAT SECTION THE HONBLE DELHI HIGH COURT HAS DECIDED IN PARA 2 THAT THE CONTENTION RAISED BY THE APPELLANT-ASSESSEE IS THAT THE ADDITI ON, WHICH IS THE SUBJECT MATTER OF QUESTIONS NO.(II) AND (III), WAS/IS NOT J USTIFIED IN THE ASSESSMENT ORDER UNDER SECTION 153A, AS NO INCRIMINATING MATER IAL WAS FOUND CONCERNING THE ADDITION UNDER SECTION 115 JB OF THE ACT. THE SAID ARGUMENT HAS NO SUBSTANCE AND HAS TO BE REJECTED. U NDER SECTION 153A OF THE ACT, THE ADDITIONS NEED NOT BE RESTRICTED OR LIMITED TO THE INCRIMINATING MATERIAL, WHICH WAS FOUND DURING THE COURSE OF SEARCH. THERE CANNOT BE MULTIPLE ASSESSMENTS, ONCE SECTION 153A OF THE ACT IS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 44 APPLICABLE. SECTION 153A(1) POSTULATES ONE ASSESSME NT, COMPUTING THE TOTAL INCOME OF SIX ASSESSMENT YEAR. IMMEDIATELY PR ECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. TOTAL INCOME IS ASSESSED OR REASSESSED N THE ORDER UNDER SECTION 153A OF THE AC T AND THE SECTION APPLIES NOTWITHSTANDING SECTIONS 139, 147, 148, 149, 151 AND 153 OF THE ACT. FURTHER HONBLE DELHI HIGH COURT HAS CLARIFIED THE DECISION OF CHETAN DASS, LAXMANDASS DECIDED EARLIER BY OBSERVING IN PA RA 3 THAT LEARNED COUNSEL FOR THE APPELLANT ASSESSEE HAS RELIED ON TH E DECISION OF THIS COURT IN CIT VS. CHETAN DASSLAXMANDASS, (2012) 254 CTR (DEL) 392. THE SAID DECISION NOTICES INSERTION OF SECTION 153A BY FINANCE ACT, 2003, ITS PURPOSE AND OBJECT, HAD THE EARLIER PROCE EDINGS FOR BLOCK ASSESSMENT UNDER CHAPTER XIVB, THE DIFFICULTIES AND THE LEGAL ISSUES WHICH HAD ARISEN ON THE DIFFERENCE BETWEEN REGULAR ASSESSMENT AND BLOCK ASSESSMENT. IT IS IN THIS CONTEXT THAT IN THE CASE OF CHETAN DASSLAXMANDASS (SUPRA), THE DIVISION BENCH, [TO WHI CH ONE OF US (SANJIV KHANNA, J) WAS A PARTY], HAS OBSERVED THAT SECTION 153A(1)(B) PROVIDES FOR ASSESSMENT OR RE-ASSESSMENT OF THE TOT AL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE . IT WAS EMPHASIZED THAT THERE IS NO CONDITION IN THIS SECTION THAT THE ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF THE SEARCH OR OTHER POST SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER, RELATED TO THE EVIDENCE FOUND. S UBSEQUENT OBSERVATION TO THE EFFECT THAT THE ASSESSMENT UNDER SECTION 153A SHOULD NOT BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR N EXUS WITH THE SEIZED MATERIAL, IS BASICALLY CLARIFICATORY THAT THE ASSES SMENT UNDER SECTION 153A EMANATES AND STARTS ON THE FOUNDATION OF THE SEARCH , WHICH IS THE JURISDICTIONAL PRECONDITION. AFTER THAT HONBLE DELHI HIGH COURT HAS DISCUSSED T HE CASE OF ANIL KUMAR BHATIA DECIDED BY HONBLE DELHI HIGH COURT EARLIER AND QUOTED FROM PARA I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 45 18 & 22 OF THIS ORDER (MENTIONED SUPRA) AND FINELY DECIDED IN PARA 4 OF THIS ORDER THAT AFTER EXAMINATION OF SECTION 153A T HE SUBMISSION/CONTENTION OF THE APPELLANT HAS NO MERIT . HIGHLIGHTS OF THE CASE OF RAJ KUMAR ARORA, ITA NO. 56/2011 DATED 11.07.2014 OF HONBLE ALLAHABAD HIGH COURT (PAGE NO . 1 TO 7 OF PAPER BOOK NO. 2) THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE O F RAJ KUMAR ARORA, ITA NO. 56/2011 BY HONBLE ALLAHABAD HIGH CO URT VIDE ORDER DATED 11-07-2014. THE QUESTION OF LAW REFERRED BEFORE HONBLE ALLAHAB AD HIGH COURT IN THIS CASE IS AS UNDER :- WHETHER ITAT HAS ERRED IN LAW IN DISMISSING THE AP PEAL OF THE DEPARTMENT AND HOLDING THAT NO ADDITION CAN BE MADE FOR GIFT IN ASSESSMENT COMPLETED UNDER SECTION 153A UNLESS SOME INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, THU S IGNORING THE PROVISIONS OF LAW AS CONTAINED IN SECTION 153A WHIC H REQUIRED THE ASSESSING OFFICER TO ASSESSEE OR REASSESS THE TOTAL INCOME AS DEFINED N SECTION 2(45) OF THE INCOME TAX ACT, 1961. WHETHER THE ORDER OF THE ITAT IS PERVERSE IN AS MUC H AS IT HAS IGNORED THE PROVISIONS OF LAW AS CONTAINED IN PROVISO (C) O F SUB-SEC(1) 153A WHICH REQUIRED THE ASSESSING OFFICER TO ASSESSEE OR REASSESS THE TOTAL INCOME. HONBLE ALLAHABAD HIGH COURT HAS DECIDED AT THE END IN FAVOUR OF REVENUE WHICH IS REPRODUCED AS UNDER:- CONSEQUENTLY WE ARE OF THE OPINION THAT IN CASES W HERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPL ETED AND ASSESSMENT ORDERS HAVE BEEN PASSED, WHICH WERE SUBS ISTING WHEN THE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 46 SEARCH WAS MADE, THE ASSESSING OFFICER WOULD BE COM PETENT TO REOPEN THE ASSESSMENT PROCEEDING ALREADY MADE AND DETERMIN E THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER, WHIL E EXERCISING THE POWER UNDER SECTION 153A OF THE ACT, WOULD MAKE ASS ESSMENT AND COMPUTE THE TOTAL INCOME OF THE ASSESSEE INCLUDING THE UNDISCLOSED INCOME, NOTWITHSTANDING THE ASSESSEE HAD FILED THE RETURN BEFORE THE DATE OF SEARCH WHICH STOOD PROCESSED UNDER SECTION 143(1)(A) OF THE ACT. IN THE LIGHT OF THE AFORESAID, THE REASONS GIVEN BY THE TRIBUNAL THAT NO MATERIAL WAS FOUND DURING THE SEARCH CANNOT BE SUSTAINED SINCE WE HAVE HELD THAT THE ASSESSING OFFICER HAS THE POWER TO REASSESS THE RETURNS OF TH E ASSESSEE NOT ONLY FOR THE UNDISCLOSED INCOME, WHICH WAS FOUND DURING THE SEARCH OPERATION BUT ALSO WITH REGARD TO THE MATERIAL THAT WAS AVAIL ABLE AT THE TIME OF THE ORIGINAL ASSESSMENT. WE FIND THAT THE TRIBUNAL DISM ISSED THE APPEAL WHILE RELYING UPON THE DECISION OF A COORDINATE BEN CH OF THE TRIBUNAL IN THE CASE OF ANIL KUMAR BHATIA VS. ACIT (2010) 1 ITR (TRIB.) 484 (DELHI). WE FIND THAT THE SAID DECISION OF THE COORDINATE BE NCH OF THE TRIBUNAL WAS SET ASIDE BY THE DELHI HIGH COURT IN COMMISSION ER OF INCOME TAX VS. ANIL KUMAR BHATIA (2012) 24 TAXMANN.COM 98(DELH I). WE FIND THAT THE TRIBUNAL ONLY DISMISSED THE APPEAL ON THIS LEGAL IS SUE AND HAD NOT CONSIDERED THE MATTER ON MERITS. FOR THE REASONS STATED AFORESAID, THE TRIBUNAL HAS COMMITTED AN ERROR IN DISMISSING THE APPEAL OF THE REVENUE. WE, ACCORDING LY, SET ASIDE THE ORDER OF THE TRIBUNAL AND REMIT THE MATTER BACK TO THE TRIBUNAL TO RECONSIDER THE APPEAL OF THE DEPARTMENT AFRESH ON M ERIT. THE QUESTION OF LAW IS ANSWERED ACCORDINGLY. HIGHLIGHTS OF THE CASE OF CANARA HOUSING DEVELOPMEN T COMPANY, ITA NO. 38/2014 DATED 25.07.2014 OF HONBLE KARNATA KA HIGH COURT(PAGE 1 TO 18 OF PAPER BOOK NO. 1) I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 47 II) THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA HAS BEEN FOLLOWED RECENTLY IN ANOTHER CASE OF CANARA HOUSING DEVELOPMENT COMPANY, ITA NO. 38/2014 BY HON BLE KARNATAKA HIGH COURT VIDE ORDER DATED 25-07-2014. I N THIS CASE THE HONBLE COURT HAS ALSO OBSERVED THAT THE DECISION O F HONBLE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGIS TIC LTD. DATED 06/07/2012 IS NOT CORRECT. THE QUESTION OF LAW REFERRED BEFORE HONBLE KARNATA KA HIGH COURT IN THIS CASE IS AS UNDER:- WHEN ONCE THE PROCEEDINGS UNDER SECTION 153A OF TH E ACT IS INITIATED, WHETHER THE COMMISSIONER OF INCOME TAX CAN INVOKE T HE POWER UNDER SECTION 263 OF THE ACT TO REVIEW THE ORDER OF ASSES SMENT PASSED BY THE ASSESSING AUTHORITY? AT THE END THE HONBLE COURT HAS DECIDED IN PARA 11 THAT THE TRIBUNAL HAS PROCEEDED ON THE ASSUMPTION BY VIRTUE OF THE JU DGMENT OF THE SPECIAL BENCH OF THE MUMBAI, THE SCOPE OF ENQUIRY UNDER SECTION 153A IS TO BE CONFIRMED ONLY TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH A ND IF THERE IS ANY OTHER INCOME WHICH IS NOT THE SUBJECT MATTER OF SEA RCH, THE SAME CANNOT BE TAKEN INTO CONSIDERATION. THEREFORE, THE REVISIO NAL AUTHORITY CAN EXERCISE THE POWER UNDER SECTION 263. IN THE ENTIRE SCHEME OF 153A OF THE ACT, THERE IS NO PROHIBITION FOR THE ASSESSING AUTHORITY TO TAKE NOTE OF SUCH INCOME. ON THE CONTRARY, IT IS EXPRESSLY PROVI DED UNDER SECTION 153A OF THE ACT THE ASSESSING OFFICER SHALL ASSESSE E OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS WHICH MEANS THEY SAID TOTAL INCOME INCLUDES INCOME WHICH WAS RETURNED IN THE EA RLIER RETURN, THE INCOME WHICH WAS UNEARTHED DURING SEARCH AND INCOME WHICH IS NOT THE SUBJECT MATTER OF AFORESAID TWO INCOME. IF THE COMM ISSIONER HAS COME ACROSS ANY INCOME THAT THE ASSESSING AUTHORITY HAS NOT TAKEN NOTE OF WHILE PASSING THE EARLIER ORDER, THE SAID MATERIAL CAN BE FURNISHED TO THE I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 48 ASSESSING AUTHORITY AND THAT ASSESSING AUTHORITY SH ALL TAKE NOTE OF THE SAD INCOME ALSO IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHEN THE EARLIER PROCEEDINGS ARE REOPENED AND THAT INCOM E ALSO SHALL BECOME THE SUBJECT MATTER OF SAID PROCEEDINGS. RECENTLY SAME VIEW IS ALSO EXPRESSED BY HONBLE DEL HI BENCH IN THE CASE OF APOORVA EXTRUSION PVT. LTD., ITA NO. 3308/DEL/2010 FOR THE A.Y. 2002-03, VIDE ORDER DATED 09.10.2014. THE RELE VANT PORTION IS MENTIONED AS BELOW:- 5. IN ORDER TO ANSWER WHETHER THE QUASHING OF THE INITIATION OF ASSESSMENT FOR THE YEAR UNDER CONSIDERATION ON THE GIVEN COUNT IS VALID OR NOT, WE NEED TO CONSIDER THE MANDATE OF THE RELE VANT PART OF SUB- SECTION (1) OF SECTION 153C, WHICH READS AS UNDER:- NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHER E THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWEL LERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR RE QUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRE D TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SE IZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVI NG JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON IN AC CORDANCE WITH THE PROVISIONS OF SECTION 153A 6. A BARE PERUSAL OF THE ABOVE PROVISION INDICATES THAT WHERE THE AO IS SATISFIED THAT ANY BOOKS OF ACCOUNT OR DOCUMENT APART FROM MONEY, BULLION OR JEWELLERY ETC., SEIZED FROM THE PERSON S EARCHED BELONG TO A PERSON OTHER THAN THE PERSON SEARCHED U/S 153A, THE N SUCH BOOKS OF ACCOUNT OR DOCUMENTS ETC. SHALL BE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON AND THE AO OF S UCH OTHER PERSON SHALL PROCEED TO ASSESS OR REASSESS INCOME OF SUCH OTHE R PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THU S, THE EFFECT OF SUB- SECTION (1) OF SECTION 153C IS THAT WHERE ALL THE N ECESSARY INGREDIENTS OF I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 49 THIS SUB-SECTION ARE SATISFIED, THE MATTER OF MAKIN G ASSESSMENT OR RE- ASSESSMENT GOES BACK TO SECTION 153A. SINCE THE A SSESSMENT OR REASSESSMENT OF SUCH OTHER PERSON HAS TO BE DONE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, LET US EXAMINE THE PRESCRIPTION OF THE RELEVANT PARTS OF SECTION 153A(1), WHICH IS AS UNDER :- NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN T HE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PE RIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RE SPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRE SCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRES CRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE: 7. ON CIRCUMSPECTION OF THE CLAUSE (A) OF THE ABOVE PROVISION, IT IS AMPLY CLEAR THAT THE AO SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASS ESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS AS REFERRED TO IN CLAUS E (B) AND, THE LATTER CLAUSE, PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESSS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEAR IMMEDIATELY PRE CEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. WHEN WE READ SEC TION 153C IN CONJUNCTION WITH SECTION 153A OF THE ACT, THE POSIT ION WHICH FOLLOWS IS THAT IF THE BOOKS OF ACCOUNT OR DOCUMENT ETC., BELONGI NG TO THE OTHER PERSON ARE FOUND DURING THE COURSE OF THE PERSON SEARCHED, THEN THE ASSESSMENT OR RE-ASSESSMENT OF SUCH OTHER PERSON IS REQUIRED T O BE MADE OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING ASSESSMENT YEARS I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 50 RELEVANT TO PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. SECTION 153C IS A JURISDICTION AL PROVISION, WHICH ON THE FULFILLMENT OF THE STIPULATED CONDITIONS, ENABL ES THE MAKING OF ASSESSMENT OR REASSESSMENT OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THERE IS NATURALLY NO SEPARATE PROVISION UNDER THE ACT NOR THERE DO ANY FOR MAKING THE ASSES SMENT OF SUCH OTHER PERSON FOR THE REASON OF THE BODILY LIFT ING OF THE PROVISIONS OF SECTION 153A IN SECTION 153C OF THE ACT FOR THIS PU RPOSE. SINCE SECTION 153A SPECIALLY PROVIDES FOR ASSESSMENT OR RE-ASSESS MENT OF SIX- ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH, AND IN VIEW OF SECTION 153C ADOPTING THE PROVISIONS OF SECTION 153A, THERE CAN BE NO QUESTION OF RESTRICTING THE JURISDICTION OF THE AO TO ANY L ESSER NUMBER OF YEARS FOR WHICH THE INCRIMINATING MATERIAL IS FOUND. WHEN WE READ SECTION 153C IN A HOLISTIC MANNER, IT BECOMES EVIDENT THAT THE TRIG GERING POINT FOR ASSUMING JURISDICTION ON THE PERSON OTHER THAN THE PERSON SEARCHED U/S 153C IS THE FINDING OF ANY MONEY, BULLION, JEWELLER Y OR BOOKS OF ACCOUNT OR DOCUMENT FROM THE PERSON SEARCHED. ONCE ANY MONE Y, BULLION, JEWLLERY OR BOOKS OF ACCOUNT OR DOCUMENT SEIZED OR REQUISITIONED FROM THE PERSON SEARCHED ARE FOUND TO BE BELONGING TO THE OT HER PERSON, THEN, THE ASSESSMENT OR REASSESSMENT OF SUCH OTHER PERSON IS TO BE NECESSARILY COMPLETED IN TERMS OF SECTION 153A, WHICH IN NO UNC ERTAIN TERMS REFERS TO SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSE SSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. FURTHER, THE USE OF THE WORD SHALL IN SECTION 153A IMMEDIATELY BEFORE CLAUSE (A) HAS LEFT NOTHING TO D OUBT THAT THE ASSESSMENT IS REQUIRED TO BE MADE FOR ALL THE SIX A SSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. AS THE LEGISLATURE HAS NOT MADE THE MAKING OF SUCH ASSESSM ENT OR REASSESSMENT FOR ALL THE SIX ASSESSMENT YEARS SUBJE CT TO ANY CONDITION OF FINDING OF ANY INCRIMINATING MATERIAL OR OTHERWI SE, WE ARE UNABLE TO ACCEPT SUCH CONTENTION I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 51 OF THE LD. AR WHICH, IF ACCEPTED, WOULD LEAD TO LEG ISLATING A PROPOSITION WHICH IS OBVIOUSLY NOT TENABLE. 8. WE CAN REJECT THE CONTENTION OF THE ASSESSEE FRO M ANOTHER ANGLE AS WELL. IT IS RELEVANT TO NOTE THAT THE EXPRESSION B OOKS OF ACCOUNT OR DOCUMENTS EMPLOYED IN SECTION 153C (1) IS ACCOMPAN IED BY THE WORKS MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICL ES OR THINGS. IT IS AXIOMATIC THAT MONEY OR JEWELLERY ETC. BELONGING TO THE OTHER PERSON FOUND FROM THE PREMISES OF THE PERSON SEARCHED CANN OT PER SE BE RELATED TO A PARTICULAR ASSESSMENT YEAR. IF WE TEST THE CON TENTION OF THE LD. AR ON THE TOUCHSTONE OF MONEY OR JEWELLERY ETC., BEL ONGING TO THE ASSESSEE FOUND FROM THE PERSON SEARCHED, THEN IT WILL BE VER Y DIFFICULT AT THE STAGE OF INITIATION OF ASSESSMENT OR REASSESSMENT OF THE OTHER PERSON TO RELATE IT TO A PARTICULAR YEAR, THERE BY JEOPARDIZING THE WHOLE SCHEME OF ASSESSMENT PURSUANT TO SEARCH OR REQUISITION. TO A SPECIFIC QUERY IT WAS CANDIDLY ACCEPTED BY THE LD. AR THAT IN ITEMS OF SE CTION 153A, THE INITIATION OF ASSESSMENT OR REASSESSMENT FOE ALL TH E SIX ASSESSMENT YEARS IN THE CASE OF PERSON SEARCHED IS NOT DEPENDE NT ON THE FINDINGS OF ANY INCRIMINATING MATERIAL. IT IS BEYOND OUR COMPRE HENSION THAT WHEN SUCH A COURSE OF ACTION IS PERMISSIBLE U/S 153A IN THE CASE OF PERSON SEARCHED, THEN HOW CAN THERE BE ANY BAR ON THE INIT IATING OR MAKING OF ASSESSMENT OR REASSESSMENT FOR SOME OF THE YEARS OF OTHER PERSON, MORE SO, WHEN SECTION 153C(1) HAS BEEN EXPRESSLY MA DE TO ACCORD WITH THE PROVISIONS OF SECTION 153A. WE, THEREFORE, JETT ISON THE CONTENTION URGED ON BEHALF OF THE ASSESSEE AS SANS MERIT. 9. IN ORDER TO SUPPORT THE IMPUGNED ORDER, THE LD. AR ALSO TOOK SUPPORT OF SUB-SECTION (2) OF SECTION 153C TO CONTE ND THAT THE ASSESSMENT OF THE OTHER PERSON CAN BE MADE ONLY FOR SUCH ASSESSMENT YEARS FOR WHICH THE MONEY, BULLION, JEWE LLERY OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS ARE FOUND AND FOR NO OTH ER YEARS. THIS WAS COUNTERED BY THE LD. DR. 10. TO APPRECIATE THIS CONTENTION RAISED ON BEHALF OF THE ASSESSEE, IT WOULD BE APT TO NOTE THE PRESCRIPTION OF SUB-SEC TION (2) OF SECTION 153C, WHICH RUNS AS UNDER:- I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 52 (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION: (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFI CER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER THE DUE D ATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT T O THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQU ISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMEN T YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEE N ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH O THER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEE N SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUB0SECTION (2) SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR RE-ASSESSMENT, IF ANY, HAS BEEN M ADE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISS UE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOME OF SUCH OTHER PERSO N OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDE IN SECTION 15 3A. 11. ON GOING THROUGH THE PLAIN LANGUAGE OF SUB-SEC TION (2) OF SECTION 153C, IT BECOMES MANIFEST THAT THIS DEALS WITH THE ASSESSMENT FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECT ION 132A. THIS SUB- SECTION SIMPLY PROVIDED THAT WHERE BOOKS OF ACCOUNT OR DOCUMENTS, ETC., HAVE BEEN RECEIVED BY THE AO HAVING JURISDICTION OV ER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INC OME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED U/S 13, ETC., THEN THE AO SHALL ISSUE NOTICE AND ASSESS OR REASSESS TOTAL INCOME OF THE OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECTION 153A. THE EXPRESSION SUCH ASSESSMENT YEA R USED IN SUB- SECTION (2) OF SECTION 153C REFERS TO THE ASSESSM ENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED U/S 132 OR REQUISITION IS MADE U/S 132A. THUS, IT IS AMPLY CLEAR THAT WHEREAS SUB -SECTION (2) OF SECTION I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 53 153C DEALS WITH THE ASSESSMENT FOR THE ASSESSMENT Y EAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED, SUB-SEC TION (1) OF SECTION 153C READ WITH SECTION 153A REFERS TO SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. AS WE ARE PRESENTLY CONCERNED WITH ONE OF THE SIX ASSESSMENT YEARS IMME DIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH SUCH SEARCH WAS CONDUCTED, IT IS THE MANDATE OF SUB-SECT ION (1) OF SECTION 153C READ WITH SECTION 153A WHICH SHALL APPLY. 12. REVERTING TO THE FACTS OF THE INSTANT CASE, IT IS NOTICED THAT THE DOCUMENTS FOUND FROM THE PERSONS SEARCHED, PLAC ED AT PAGES 26- 36 OF THE DEPARTMENTAL PAPER BOOK, DO BELONG TO THE ASSESSEE. AS SUCH, THERE CAN BE NO QUESTION OF LACK OF JURISDICT ION OF THE AO TO INITIATE ASSESSMENT OF THE ASSESSEE U/S 153C READ WITH SECTI ON 153A OF THE ACT FOR THE INSTANT YEAR, WHICH IS ONE OF THE SIX ASSES SMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT T HE LD. CIT (A) WAS NOT JUSTIFIED IN ANNULLING THE PROCEEDINGS DUE TO THE A BSENCE OF ANY BOOKS OF ACCOUNT OR DOCUMENTS FOR THE CURRENT YEAR FOUND FRO M THE PERSONS SEARCHED, BELONGING TO THE ASSESSEE FOR THE ASSESSM ENT YEAR UNDER CONSIDERATION. THE REVENUE SUCCEEDS. RECENTLY SAME VIEW IS ALSO EXPRESSED BY HONBLE ITA T BANGLORE BENCH IN THE CASE OF NANDINIDELUX VS ACIT, 54 TAXMANN.COM 162 VIDE ORDER DATED 05.12.2014. THE RELEVANT PORTION OF PARA 6.3. 9 OF THE ORDER IS MENTIONED AS BELOW:- RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT CO. (SUPRA), WE HOLD THAT ONCE THE ASSESSMENT IS REOPENED, THE ASSE SSING OFFICER CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RE TURN, ANY UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH AND ALSO A NY OTHER INCOME I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 54 WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OF INC OME OR WHICH IS NOT UNEARTHED IN THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT, IN ORDER TO FIND OUT AND DETERMINE WHAT IS THE 'TOTAL INCOME ' OF EACH YEAR AND THEN PASS THE ORDER OF ASSESSMENT. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AT S.NOS. 2 TO 5 ARE ACCORDINGLY DISMISSED FOR ALL FOUR ASSESSMENT YEARS 2005-06 TO 2008-09. III) ALSO RECENTLY SLP FILED BY REVENUE IN THE CASE OF PCIT VS GAHOI FOODS (P) LTD (117 TAXMANN.COM 118(SC)) WAS GRANTED BY THE HONBLE APEX COURT AGAINST THE DECISION OF HIGH COURT UPHOLDING DECISION OF ITAT THAT ASSESSMENT UNDER SE CTION 153A OF THE INCOME TAX ACT, ADDITION ONLY ON BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING SEARCH OR REQUISITION OF DOCUMENTS . SLP FILED BY REVENUE IN CASE OF PCIT VS DHANANJAY INTL. LTD., AND PCIT VS DEVI DASS GARG HAS BEEN GRANTED BY HONBLE SC IN SIMILAR SITUATIONS. IV) FURTHER RELIANCE IS ALSO PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF B KISHORE KUMAR VS DCIT 62 TAXMANN.COM215(SC) WHERE STATEMENT ON OATH RECORDED UNDER SECTION 132(4) WAS HELD TO CONSTITUTE INCRIMINATING MATERIA L FOR THE PURPOSE OF MAKING ASSESSMENT UNDER SECTION 153A. SMTDAYAWANTI GUPTA VS CIT (DELHI HC) WHERE HONBLE COURT AFTER CONSIDERING THE DECISION OF KABUL CHAWLA HAS HELD THAT STATEMENT RECORDED UNDER SECTION 132(4) DURING SEARCH PROCEED INGS IN ABSENCE OF ANY OTHER MATERIAL WOULD IN ITSELF CONSTITUTE INCRI MINATING MATERIAL GIVING LEEWAY TO AO TO MAKE ADDITIONS IN SEARCH ASSESSMENT . 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSE D THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS A S WELL AS THE MATERIAL REFERRED TO BEFORE US. BEFORE THE LD. CIT(A) THE ASSESSEE HAS CHALLENGED THE VALIDITY OF SATISFACTIO N AND I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 55 PROCEEDINGS U/S.153C WHEREIN THE LD. CIT(A) HAD DEC IDED THE ISSUE IN FAVOUR OF THE HOLDING THAT SATISFACTION NO TE RECORDED WAS NOT VALID AND THE DOCUMENT FOUND DOES NOT LEAD TO ANY ESCAPEMENT OF INCOME AND DID NOT PERTAIN TO ASSESSM ENT YEAR IN QUESTION. THE RELEVANT OBSERVATIONS ARE AS UNDER : IN VIEW OF THE ABOVE SUBMISSION, IT IS ALSO SUBMIT TED BY THE APPELLANT THAT DECISION OF THE HONBLE JURISDICTION AL HIGH COURT OF DELHI IN THE CASE OF CIT VS. KABUL CHAWLA [2015] 61 TAXMANN.COM 412 (DEL), IS SQUARELY APPLICABLE TO THE FACTS OF T HE APPELLANT. FROM THE ABOVE, FOLLOWING FACTS EMERGED: THE ASSESSMENT PROCEEDINGS WAS NOT PENDING AT THE T IME OF INITIATION OF ACTION U/S 332 OF THE ACT, 30.10.2012 . REFERENCE MADE BY THE A.O. IN THE ASSESSMENT ORDER, IS IN RESPECT OF ANNEXURE A-2, A-4.A-6, A-8, A-12, A-2S A ND A-21, WHICH CONTAINS, THE TRIAL BALANCE, RESOLUTION, AUDI TOR REPORTS, INCOME TAX RETRUNS, CHEQUE BOOKS AND CERTIFIED COPY OF RESOLUTIONS PERTAITIG TO THE ASSESSCE. OF CERTAIN C OMPANIES, AND, NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE CO URSE OF SEARCH ACTION U'S 132 OF THE ACT, CARRIED OUT AT TH E PREMISES OF THE APPELLANT. FROM THE ABOVE FACTS, IT IS CLEAR THAT THE ADDITION MADE IN ASSESSMENT ORDER U/S. 153C/153A OF THE ACT DATED 31 .3.2015, ARE NOT BASED ON ANY INCRIMINATING DOCUMENT. AS SUC H, FACTS OF THE APPELLANT ARE- SQUARELY COVERED BY THE RATIO LA ID DOWN BY HONBLC JURISDICTIONAL HIGH COURT OF DELHI, IN THE CASE OF C1T VS. KABUL CHAWLA (SUPRA). SIMILARLY, THE STATEMENT RECO RDED U/S 132(4) OF THE ACT, IS NOT A DOCUMENT, AS HAS BEEN H ELD BY THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE C ASE OI C.IT VS. RAJ PAL BHATIA [2011], 333 ITR 315 (DELHI). I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 56 IN VIEW OF THE ABOVE, I AGREE WITH THE ARGUMENTS OF THE APPELLANT AND THEREFORE, NO ADDITION CAN BE MADE, I N ABSENCE OF ANY INCRIMINATING DOCUMENT. ACCORDINGLY, GROUND NO. 3, IS HEREBY ALLOWED. AS, I HAVE ALREADY FIELD (SUPRA), WHILE DECIDING IN GROUND NO. 3 THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUN D DURING SEARCH ACTION U/S 132 AND ALSO ASSESSMENT WAS NOT A BATED AT THE TIME OF INTIATION OF ACTION U/S 132 OF THE ACT, ON 30.10.2012, NO ADDITION CAN BE MADE, IN THE ASSESSMENT ORDER PA SSED U/S 153C OF THE ACT. THE FACTS OF THE APPELLANT ARE, SQ UARLY COVERED BY THE RATIOS LAID DOWN IN THE ABOVE 2 DECISIONS OF TH E HOTFBLE JURISDICTIONAL HIGH COURT OF DELHI. IN VIEW OF THES E FACTS AND CIRCUMSTANCES, IN MY CONSIDERED OPINION, NOW IT IS NOT REQUIRED TO ADJUDICATE THE GROUNDS NO. 5 TO 8 AND THEREFORE, SA ME ARE CONSIDERED, AS DEEMED TO HAVE BEEN ALLOWED. ACCORDINGLY, GROUND NO. 5 TO 8 ARE HEREBY ALLOWED. 17. THUS, THE LD. CIT(A) HAD HELD THAT NOTHING IS INCRIMINATING IN THE DOCUMENTS FOUND AND, THEREFORE, THE ISSUE IS CO VERED BY THE JUDGEMENT OF THE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA APPLIES WHICH STATES THAT IN RESPECT OF COMP LETED ASSESSMENTS, ADDITIONS CANNOT BE MADE IF NO INCRIMI NATING DOCUMENTS EXIST AND NO UNDISCLOSED INCOME FOUND DUR ING THE COURSE OF SEARCH. 18. WE HAVE CAREFULLY PERUSED THE SATISFACTION NOTE , WRITTEN SUBMISSIONS OF THE APPELLANT AND ALSO THE CONTENTIO NS OF THE LD. CIT (DR). A CHART WAS FURNISHED BY THE APPELLANT, WHICH IS REPRODUCED ABOVE IN THIS ORDER,WHEREIN EVERY SEIZED DOCUMENT W AS DESCRIBED AS TO ITS NATURE AND IT WAS EMPHASIZED THAT ALL THE DO CUMENTS ARE EITHER I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 57 STATUTORY RECORDS FILED WITH THE TAX AUTHORITIES, RO C OR ARE AUDITED ACCOUNTS AND BOOKS OF THE APPELLANT. 19. WE HAVE PERUSED THE CHART FROM WHICH IT CLEARLY COMES OUT THAT THE DOCUMENTS BELONG TO THE APPELLANT. HOWEVER , THEY DO NOT INDICATE ANY UNDISCLOSED INCOME THAT HAS ESCAPED ASS ESSMENT IN THE IMPUGNED ASSESSMENT YEARS. THE APPELLANT HAD ALSO SU BMITTED A CHART DEMONSTRATING THAT THE ASSESSMENT YEARS IN AP PEAL ARE COMPLETED ASSESSMENT YEARS WHICH HAS BEEN REPRODUCED IN THE SUBMISSIONS OF THE APPELLANT. WE WOULD LIKE TO REPR ODUCE THE RELEVANT PORTION OF SECTION 153C OF THE ACT. 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, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING, SEIZED OR REQUISITIONED,BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUIS ITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINE D THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURI SDICTION OVER SUCH OTHER PERSON ] [AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR RE ASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIO NS OF SECTION 153A, IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BO OKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A] I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 58 [ 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-S ECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISI TIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON :] [ PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, SPECIFY T HE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY P RECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE EXCEPT IN CASES WH ERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED.] [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHE R PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER S UB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MADE, I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 59 BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOME OF S UCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECT ION 153A.] 20. THE TESTS THAT THE DOCUMENTS BELONG TO THE APPE LLANT ARE DULY VERIFIED. SECTION 153C OF THE ACT ALSO STATES THAT ONCE THE ASSESSMENT IS SOUGHT TO BE OPENED BASED ON THE DOCU MENTS BELONGING TO THE APPELLANT, FURTHER ASSESSMENT SHAL L BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF T HE ACT. THERE IS A FURTHER REQUIREMENT WHICH STATES THAT THE ASSESSING OFFICER MUST RECORD A SATISFACTION NOTE THAT DOCUMENTS MUST HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF THE APPELL ANT. BOTH THE CONDITIONS LEAD TO THE CONCLUSION THAT THE DOCUMENT S FOUND MUST BE INDICATIVE OF ESCAPEMENT OF INCOME AND THAT THE TOT AL INCOME DECLARED BY THE APPELLANT IN ITS RETURN OF INCOME MU ST NECESSARILY BE EFFECTED BY THE FINDINGS IN THE SEIZED DOCUMENTS. 21. IN ORDER TO TRIGGER THE PROVISION OF SECTION 15 3C AND TO ACQUIRE JURISDICTION, THE FUNDAMENTAL RIGHT TEST WITH THAT DOCUMENT SHOULD BELONG TO THE OTHER PERSON WHO IS FOUND FROM THE PO SSESSION OF THE PERSON SEARCHED. ONCE ASSESSING OFFICER WITH THE SE ARCHED PERSON IS SATISFIED THAT DOCUMENT BELONGS TO THE OTHER PERSON , THEN HE HAS TO PASSED THE ASSESSMENT ORDER IN ACCORDANCE WITH THE PROVISION OF SECTION 153A, I.E., FOR SIX ASSESSMENT YEARS FROM T HE DATE OF HANDING OVER THE DOCUMENTS OR RECORDING OF THE SATISFACTION . THE SATISFACTION AND THE DOCUMENTS BELONGING TO THE ASSESSEE MUST HA VE BEARING I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 60 UNDER THE DETERMINATION OF THE TOTAL INCOME OF THE APPELLANT FOR SIX ASSESSMENT YEARS. THE DOCUMENTS MUST BE INDICATIVE OF ESCAPEMENT OF INCOME OF THE TOTAL INCOME DECLARED BY THE ASSESS EE IN ITS RETURN OF INCOME MUST NECESSARILY BE AFFECT FROM THE FINDINGS IN THE SEIZED DOCUMENTS. NOW IT IS A WELL SETTLED LAW IN VIEW OF THE VARIOUS JUDGMENTS CITED ABOVE THAT THE DOCUMENTS SEIZED MUS T BE INDICATIVE OF UNDISCLOSED INCOME AND MUST ALSO PERTAINS TO THE RELEVANT ASSESSMENT YEAR. THIS PRINCIPLE HAS BEEN UPHELD BY TH E HONBLE SUPREME COURT IN THE CASE OF CIT VS. SINGHAD TECHNI CAL EDUCATION SOCIETY, 84 TAXMAN.COM 90 , WHEREIN IT WAS OBSERVED AND HELD AS UNDER: THE TRIBUNAL PERMITTED THIS ADDITIONAL GROUND BY G IVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ONTHE BASIS OF FACTS ALREADY ON THE RECORD AND, THEREFORE, COULD BE RAISED. IN THIS BEH ALF, IT WAS NOTED BY THETRIBUNAL THAT AS PER THE PROVISIONS OF SECTION 1 53C, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TOTHE ASSE SSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCU MENTS WHICH WERE SEIZED DID NOTESTABLISH ANY CO-RELATION, DOCUMENT-W ISE, WITH THESE FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDERSECTI ON 153C IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A J URISDICTIONAL FACT. THIS REASONINGAPPEARS TO BE LOGICAL AND VALID, HAVING RE GARD TO THE PROVISIONS OF SECTION 153C. ORDER OF THE TRIBUNAL REVEALSTHAT THE TRIBUNAL HAD SCANNED THROUGH THE SATISFACTION NOTE AND THE MATER IAL WHICH WAS DISCLOSED THEREIN WASCULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMENT YEAR 2004-05 OR THEREAFTER. AFTER TAKING NOTE OFTHE MATERIAL AND DISCUSSING IT, IT WAS SPECIFICALLY RECORDED THA T THE DEPARTMENT COULD NOT POINT OUT TO THECONTRARY. IT IS FOR THIS REASON THE HIGH COURT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF T HETRIBUNAL. THAT APART, THE RESPONDENT, ARGUED THAT NOTICE IN RESPECT OF AS SESSMENT YEARS 2000- 01 AND 2001-02 WAS EVEN TIME BARRED.[PARA 18] I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 61 22. FROM THE PERUSAL OF THE SATISFACTION NOTE, IT C ANNOT BE HELD THAT IT IS REFLECTIVE OF ANY UNDISCLOSED INCOME OR I N THE NATURE OF INCRIMINATING BELONGING TO THE ASSESSEE THE REASON BEING NONE OF THE DOCUMENTS EITHER PERTAINED TO THE IMPUGNED ASSESSME NT YEARS OR ARE ALREADY PARTY OF REGULAR BOOKS OF ACCOUNT. 23. THIS IS FAIRLY CLEAR FROM THE ASSESSEES EXPLANA TION WITH REGARD TO EACH AND EVERY DOCUMENT INCORPORATED IN THE TABU LATED FORM IN THE FOLLOWING PARAGRAPHS. MOST OF THE DOCUMENTS DID NOT PERTAIN TO IMPUGNED ASSESSMENT YEARS OR DOES NOT SPECIFY ANY ASSE SSMENT YEAR OR HAVE ALREADY RECORDED IN THE BOOKS OF ACCOUNT OR A PART OF ASSESSMENT YEARS. THE DOCUMENTS AT LEAST INDICATE S OME PRIMA FACIE THAT THERE IS SAME ESCAPEMENT OF INCOME OR THERE IS AN ELEMENT OF UNDISCLOSED INCOME, IT CANNOT BE SAID TO BE INCRIMI NATING. IF THE DOCUMENTS FOUND ARE AVAILABLE IN PUBLIC DOMAIN OR A RE STATUTORY RECORDS, SAME CANNOT BE HELD TO BE INCRIMINATING AN D THIS HAS BEEN HELD SO IN SERIES OF JUDGMENTS OF HONBLE DELHI HIG H COURT. KABUL CHAWLA (2012) (61 TAXMANN.COM 412)(DELHI HC), SUNNY INFRAPROJECTS LTD. ITA NO. 502 OF 2016(DELH I HC), INDEX SECURITIES PVT. LTD. (86 TAXMANN.COM 84) (DE LHI HC), RRJ SECURITIES (380 ITR 612) (DELHI HC), ARN INFRASTRUCTURE INDIA LTD. (81 TAXMANN.COM 260) (DEL HI HC), RAJEEV BEHL (99 TAXMANN.COM 425)(DELHI HC), PCIT VS . DREAMCITYBUILDWELL PVT. LTD. (417 ITR 617) (DELHI H C), REFAM MANAGEMENT SERVICES PVT. LTD. (80 TAXMANN.COM I.T.AS. NO. 4046, 4047 & 4048/DEL/2017 62 281) (DELHI HC), SSP AVIATION LTD. (20 TAXMANN.COM 214) (DELHI HC). 24. THUS, ORDER OF THE LD. CIT (A) HOLDING THAT THE ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ORDER ARE NOT BASED ON I NCRIMINATING MATERIAL, IS AFFIRMED. HENCE, THE APPEAL OF THE REV ENUE IS DISMISSED. OUR FINDING GIVEN ABOVE WILL APPLY IN THE APPEAL FOR THE ASSESSMENT YEARS 2009-10 AND 2011-12 ALSO. 25. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2021 SD/- SD/- [B.R.R. KUMAR] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 18/06/2021 PKK: