Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 92431 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
8 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
24-04-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Assessment Year
2009-2010
Appeal Filed On
01-08-2014
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T. A. NO. 4984 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 0 9 - 10 ) SHRI DEVEN J MEHTA, 1401, RAHEJA CENTRE, NARIMAN POINT, MUMBAI - 400021 / VS. DY. COMMISSIONER OF INCOME TAX - CC - 44, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPEL LANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAPPM2122C / A SSESSEES BY SHRI VIJAY MEHTA AND SHRI HARSH BHUTA / RE VENUE BY SHRI SANTOSH KUMAR / DATE OF HEARING : 9.04. 201 5 / DATE OF PRONOUNCEMENT : 24. 4 . 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 9.6.2014 PASSED BY LD CIT(A) - 3 8 , MUM BAI AND IT RELATES TO THE ASSESSMENT YEAR 2009 - 10 . THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD . CIT(A) IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.3.00 CRORES, ON THE BASIS OF LOOSE PAPERS FOUND DURING THE COURSE OF SEARCH IN THE PREMISES OF ASSESSE E S FATHER . 2. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND ABOUT OF SATISFACTION TO BE ARRIVED AT BY THE ASSESSING OFFICER OF SEARCHED PERSON AS PROVIDED UNDER SECTION 153C OF THE ACT. I.T.A. NO. 4984 / MUM/201 4 2 3. THE FACTS RELATING TO THE CASE ARE STATED IN BRIEF. THE RE VENUE HAS CARRIED OUT SEARCH AND SEIZURE OPERATION ON 6.10.2010 IN THE CASE OF M/S ARSS INFRASTRUCTURE PROJECTS LIMITED AND GROUP CONCERNS. THE ASSESSEES FATHER NAMED AS SHRI JITENDRA MEHTA WAS ALSO SUBJECTED TO SEARCH IN CONNECTION THEREWITH . DURING THE COURSE OF SEARCH PROCEEDINGS , A LOOSE PAPER PERTAINING TO THE ASSESSEE WAS SEIZED FROM THE FATHER OF THE ASSESSEE . ACCORDINGLY , THE AO INITIATED PROCEEDINGS U/S 153C OF THE ACT IN THE HANDS OF THE ASSESSEE. THE SEIZED DOCUMENT WAS A LETTER ADDRESSED BY THE ASSESSEE TO A PERSON NAMED AS MRS. PRITI WITH REGARD TO THE PURCHASE OF A PROPERTY SITUATED AT ALIBAUGH. THE SAID LETTER STATED THAT PURCHASE PRICE OF PROPERTY WAS RS.20.22 CRORES AND ADVANCE PAYMENT GIVEN TO THE OWNERS AS RS.3 CRORES . IT WAS FURTHE R STATED THAT THE BALA NCE PAYMENT WAS GOING TO BE MADE ON THE NEXT DAY. HENCE THE AO AS K ED THE ASSESSEE TO EXPLAIN AS TO WHY THE ABOVE SAID SUM OF RS.20.22 CRORES SHOULD NOT BE ASSESSED AS INCOME OF THE ASSESSEE. THE ASSESSEE REPLIED THAT THE PROPERTY WAS INTENDED TO BE PURCHASED BY A FRIEND NAMED AS MR. YOGESH SHAH AND NOT BY HIM . HOWEVER, S INCE THE ASSESSEE DID NOT FURNISH ANY CONFIRMATION LETTER FROM MR.YOGESH SHAH, THE AO TOOK THE VIEW THAT THE TOTAL CONSIDERATION MENTIONED IN THE LOOSE SHEET I.E. RS. 20.22 CRORES IS ASSESSABLE IN THE HANDS OF THE ASSESSEE. IN THIS REGARD, HE TOOK SUPPORT FROM THE PROVISIONS OF SECT ION 132(4 A) OF THE ACT. ACCORDINGLY, THE AO ASSESSED A SUM OF RS.20.22 CRORES AS UNDISCLOSED INCOME OF THE ASSESSEE. 4 . IN THE APPELLATE PROCEEDINGS, THE ASSESSEE FURNISHED CERTAIN ADDITIONAL EVIDENCES BEFORE THE LD.CIT(A) TO SHOW THAT THE IMPUGNED PROPERTY TRANSACTION DID NOT FRUCTIF Y . HENCE THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE AO . DURING THE COURSE OF REMAND PROCEEDINGS, TH E AO CONDUCTED INQUIRY WITH THE CONCERNED SUB - REGISTRAR AND CONFIRMED THAT THE SAID LAND IS STILL STAND ING IN THE NAME OF ORIGINAL LAND OWNER , I.T.A. NO. 4984 / MUM/201 4 3 MEANING THEREBY THE CONTENTION OF THE ASSESSEE THAT THE PURCHASE OF PROPERTY DID NOT FRUCTIFY GOT VINDICATED . HOW EVER, SINCE THE LOOSE DOCUMENT ADDRESSED TO MRS.PRITI BHABHI STATED THAT SUM OF RS.3 CRORES WAS PAID AS ADVANCE TO OWNERS OF THE LAND, THE LD. CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAD ALREADY PAID ADVANCE AMOUNT OF RS.3 CRORES TO THE LAND OWNER , EVEN T HOUGH THE PROPERTY TRANSACTION DID NOT FRUCTIFY. ACCORDINGLY, THE LD. CIT(A) RESTRICTED THE ADDITION TO RS.3 CRORES , T HUS GRANTING A RELIEF OF RS.17.22 CRORES. STILL AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 5. THE LD A.R FIRST ADDR ESSED THE LEGAL GROUND URGED BY THE ASSESSEE. THE LD A.R SUBMITTED THAT THE SEARCH WAS CONDUCTED IN THE HANDS OF THE FATHER OF THE ASSESSEE. THE IMPUGNED LETTER WAS HELD BY THE ASSESSI NG OFFICER OF SEARCHED PERSON TO BE BELONGING TO THE ASSESSEE HEREIN A ND H ENCE THE PROCEEDINGS U/S 153C OF THE ACT WAS INITIATED IN THE HANDS OF THE ASSESSEE HEREIN. HOWEVER, THE PROVISIONS OF SEC. 153C MANDATES THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON MUST ARRIVE AT SATISFACTION THAT ANY DOCUMENT SEIZED DURING TH E COURSE OF SEARCH BELONGS TO ANY OTHER PERSON OTHER THAN SEARCHED PERSON. THEREAFTER HE HAS TO HANDOVER THE SAID DOCUMENT TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT AO SHALL PROCEED ASSESS OR REASSESS THE INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SEC. 153A. 6. THE A.R SUBMITTED THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON DID NOT RECORD SATISFACTION AS REQUIRED UNDER SEC. 153C OF THE ACT. IN THE ABSENCE OF SATISFACTION, THE IMPUGNED ASSES SMENT ORDER IS NOT VALID. IN SUPPORT OF THIS PROPOSITION, THE LD A.R PLACED RELIANCE ON THE FOLLOWING CASE LAW: - (A) PEPSI FOODS P LTD VS. ACIT (367 ITR 112)(DELHI) (B) KRISHNA SAGAR COOPERATION VS. DCIT (49 SOT 109) (LUCK) I.T.A. NO. 4984 / MUM/201 4 4 (C) CIT VS. SHETTYS PHAR MACEUTICALS & BIOLOGICALS LTD (ITTA NO.662 AND 668 OF 2014 DATED 26.11.2014) (D) DSL PROPERTIES (P) LTD VS. DCIT (2012)(60 SOT 88)(DELHI) (E) TANVIR COLLECTIONS (P) LTD VS. ACIT (168 TTJ (DEL) 145) 7. ON THE CONTRARY, THE D.R SUBM ITTED THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON (SHRI JITENDRA MEHTA) AND THE ASSESSEE HEREIN (SHRI DEVAN MEHTA) ARE ONE AND SAME PERSON. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS RECORDED SATISFACTION IN THE FILE OF THE ASSESSEE HEREIN BEFORE ISSUING NOTICE U/S 153C OF THE ACT. ACCORDINGLY HE SUBMITTED THERE WAS NO REQUIREMENT TO RECORD ANOTHER SATISFACTION IN THE CASE OF SHRI JITENDRA MEHTA. HE FURTHER SUBMITTED THAT THE PROVISIONS OF SEC. 153C DOES NOT REQUIRE RECORDING OF SATISFACTI ON AND HENCE THE SATISFACTION CAN BE GATHERED FROM THE SEIZED MATERIAL. IN THIS REGARD, HE PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF MAK DATA LTD (358 ITR 593)(SC). ACCORDINGLY HE SUBMITTED THAT THE SATISFACTION NOT E RECORDED IN THE FILE OF THE ASSESSEE WAS SUFFICIENT COMPLIANCE WITH THE PROVISIONS OF SEC. 153C OF THE ACT. 8. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OF FICER AS WELL AS THE LD D.R HAS ADMITTED THAT THE SATISFACTION NOTE WAS NOT RECORDED IN THE FILE OF THE SEARCHED PERSON VIZ., SHRI JITENDRA MEHTA. IN THIS REGARD, WE MAY REFER TO THE LETTER DATED 09 - 04 - 2015 WRITTEN BY THE ASSESSING OFFICER TO THE LD CIT(DR), WHICH READS AS UNDER: - 2. IN THIS CASE, APPELLANT ASSESSEE HAS REQU ESTED FOR TWO SATISFACTION NOTES U/S 153C OF THE INCOME TAX ACT, 1961. IN THIS MATTER, THE UNDERSIGNED WOULD LIKE TO POINT OUT THAT ACTION U/S 153A WAS TAKEN IN THE CASE OF SHRI JITENDRA MEHTA, FATHER OF ASSESSEE AS WARRANT WAS EXECUTED IN THE NAME OF SHR I JITENDRA MEHTA. ONCE WARRANT IS EXECUTED IN THE NAME OF PARTICULAR PERSON, PROCEEDINGS U/S 153A CAN BE BEGUN IN CASE OF THAT PERSON WHICH DO NOT REQUIRE ANY SATISFACTION TO BE RECORDED BY ASSESSING OFFICER. I.T.A. NO. 4984 / MUM/201 4 5 3. FURTHER, SOME PAPERS WERE SEIZED FROM THE PREMISES OF SHRI JITENDRA MEHTA, WHICH BELONGED TO ASSESSEE, I.E., SHRI DEVEN MEHTA. SINCE THE PAN OF SHRI DEVEN MEHTA WAS CENTRALIZED WITH SAME ASSESSING OFFICER, I.E DCIT, CENTRAL CIRCLE - 44, MUMBAI HE RECORDED HIS SATISFACTION U/S 153C OF THE INCOME TAX ACT, 1961 VIDE ORDER SHEET ENTRY DT. 7.2.3013 (SIC) IN CASE OF SHRI DEVEN MEHTA AND ISSUED NOTICE U/S 153C TO SHRI DEVEN MEHTA FOR BLOCK ASSESSMENT (COPY OF SATISFACTION NOTE IS ATTACHED). 3. (SIC) AS IT IS EVIDENT THAT THE ASSESSING OFFICER WAS SAM E FOR BOTH THE CASES I.E. SHRI JITENDRA MEHTA AND SHRI DEVEN MEHTA, THERE WAS NO NEED FOR ANOTHER SATISFACTION NOTE TO BE RECORDED IN THE FILE OF SHRI JITENDRA MEHTA. 9. THE SATISFACTION NOTE REFERRED IN THE ABOVE SAID LETTER READS AS UNDER: - REASONS FOR ISSUING NOTICE U/S 153C OF THE I.T ACT, 1961 IN THE CASE OF SHRI DEVEN MEHTA A.Y 2005 - 06 TO 2010 - 11 07.02.2013 A SEARCH WS U/S 132 CONDUCTED IN THE ARSS INFRASTRUCTURE GROUP ON 06/10/2010. IN CONNECTION WITH THE SAME SEARCH WAS ALSO CONDUCTED IN THE CASE OF SHRI JITENDRA J MEHTA (S.J. IMPEX) AND M/S JYOTI BRIGHT BAR LTD AT (OFFICE AT 1401, RAHEJA CENTRE, NARIMAN POINT, MUMBAI). DURING THE SEARCH AT THE PREMISES OF SHRI JITENDRA J MEHTA (WHO IS FATHER OF SHRI DEVEN MEHTA) SOME DOCUMEN T & DETAILS HAVE BEEN FOUND WHICH BELONG TO YOU. THEREFORE IN VIEW OF THE ABOVE THIS CASE IS COVERED FOR PROCEEDING U/S 153C OF THE I.T. ACT, 1961 AND ACCORDINGLY NOTICE U/S 153C IS BEING ISSUED IN THIS CASE. 10. SINCE THE DISPUTE SURROUNDS THE PRO VISIONS OF SUB. SEC. (1) OF SEC. 153 C , WE EXTRACT THE SAME BELOW, FOR THE SAKE OF CONVENIENCE: - 153C. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS TO BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF I.T.A. NO. 4984 / MUM/201 4 6 ACCOUNT OR DOCUM ENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSES S INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A A CAREFUL READING OF THE ABOVE SAID PROVISION WOULD SHOW THAT THE ASSESSING OFFICER OF THE PERSON REFERRED TO IN SECTION 153A (I.E., PERSON IN WHOSE HANDS SEARCH WAS CONDUCT ED) SHOULD ARRIVE AT SATISFACTION THAT THE MONEY, BULLION ETC. BELONG TO A PERSON OTHER THAN THE PERSON IN WHOSE HANDS SEARCH WAS CONDUCTED. NATURALLY, THE SATISFACTION SHOULD BE ARRIVED BY THE ASSESSING OFFICER WHILE ASSESSING THE INCOME OF SEARCHED PE RSON. 11. IN THE INSTANT CASE, IT IS AN ADMITTED FACT THAT THERE IS NO MATERIAL TO SHOW THAT THE SATISFACTION WAS ARRIVED AT BY THE ASSESSING OFFICER OF THE SEARCHED PERSON DURING THE COURSE OF ASSESSING HIS INCOME. IN THIS REGARD, THE LD D.R SUBMIT TED THAT THE ASSESSING OFFICER WAS THE ONE AND SAME PERSON FOR BOTH SEARCHED PERSON AND THE ASSESSEE HEREIN. THEREFORE, THE SATISFACTION WAS NOT REQUIRED OR SHOULD BE DEEMED TO HAVE BEEN ARRIVED AT. HOWEVER, WE ARE VERY MUCH DOUBTFUL ABOUT THE VALIDITY O F SAID CONTENTIONS. UNDER THE PROVISIONS OF SEC. 132(4A), WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OF THING FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF SEARCH, IT MAY BE PRESUME D THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON. IN THE INSTANT CASE, THE SEARCH WAS CONDUCTED IN THE HANDS OF SHRI JITENDRA MEHTA AND THE IMPUGNED DOCUMENT WAS S EIZED FROM HIS POSSESSION. HENCE, AS PER THE PROVISIONS OF SEC. 132(4A), IT SHOULD BE PRESUMED THAT THE IMPUGNED DOCUMENT BELONG TO SHRI JITENDRA MEHTA. NOW IN ORDER TO ARRIVE AT THE SATISFACTION THAT THE SAID DOCUMENT DID NOT BELONG TO SHRI JITENDRA MEH TA BUT TO SOME OTHER I.T.A. NO. 4984 / MUM/201 4 7 PERSON, THE ABOVE SAID PRESUMPTION SHOULD HAVE BEEN REBUTTED BY SOME POSITIVE ACTION , COGENT MATERIAL ETC. ONE OF T HE POSSIBLE ACTIONS, IN OUR VIEW, COULD BE THAT THE ASSESSING OFFICER SHOULD HAVE MADE ENQUIRIES ABOUT THE DOCUMENT WIT H SHRI JITENDRA MEHTA AND HE SHOULD HAVE IDENTIFIED THE OWNER OF THE DOCUMENT BY DISOWNING THE SAME, THUS REBUTT ING THE PRESUMPTION PRESCRIBED IN SEC. 132(4A) OF THE ACT. THIS SITUATION COULD LEAD THE ASSESSING OFFICER OF THE SEARCHED PERSON TO ARRIVE AT THE SATISFACTION THAT THE DOCUMENT OR ASSETS FOUND IN THE POSSESSION OF THE SEARCHED PERSON BELONGS OR BELONGS TO ANY OTHER PERSON OR PERSONS. IN OUR VIEW, EVEN THOUGH THE ASSESSING OFFICER WAS SAME FOR SEARCHED PERSON OR OTHER PERSON, YET THE SATISFACTIO N PRESCRIBED IN SEC. 153C OF THE ACT SHOULD BE ARRIVED AT WHILE ASSESSING THE INCOME OF THE SEARCHED PERSON. 12. ADMITTEDLY, IN THE PRESENT CASE, THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE ASSESSING OFFICER HAS ARRIVED AT THE SATISFACTION WHILE A SSESSING THE INCOME OF THE SEARCHED PERSON, VIZ., SHRI JITENDRA MEHTA. A PERUSAL OF THE LETTER WRITTEN BY THE ASSESSING OFFICER AND THE SATISFACTION NOTE REFERRED THEREIN (SUPRA) WOULD SHOW THAT THE SEARCH TOOK PLACE ON 06/10/2010 AND THE SATISFACTION NOT E (TITLED AS REASONS FOR ISSUING NOTICE U/S 153C OF THE I.T ACT, 1961) WAS WRITTEN ON 07.02.2013, I.E., AFTER EXPIRY OF MORE THAN 2 YEARS. FURTHER, THERE WAS NO EXPLANATION AS TO WHY THE ASSESSMENT OF THE PRESENT ASSESSEE WAS CENTRALIZED WITH THE ASSESS ING OFFICER OF THE SEARCHE D PERSON THAT TOO WITHOUT ARRIVING AT THE SATISFACTION THAT ANY OF THE SEIZED MATERIAL BELONG TO THE ASSESSEE HEREIN. 13. THE PROPOSITION DISCUSSED ABOVE FINDS SUPPORT FROM THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF PEPSI FOODS P LTD (SUPRA). THE FOLLOWING OBSERVATIONS MADE IN THE ABOVE CITED CASE ARE RELEVANT HERE: - I.T.A. NO. 4984 / MUM/201 4 8 ON A PLAIN READING OF SECTION 153C, IT IS EVIDENT THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON MUST BE SATISFIED THAT, INTER ALIA, A NY DOCUMENT SEIZED OR REQUISITIONED BELONGS TO A PERSON OTHER THAN THE SEARCHED PERSON. IT IS ONLY THEN THE ASSESSING OFFICER OF THE SEARCHED PERSON CAN HANDOVER SUCH DOCUMENT TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON (OTHER TH AN THE SEARCHED PERSON). FURTHERMORE, IT IS ONLY AFTER SUCH HANDING OVER THAT THE ASSESSING OFFICER OF SUCH OTHER PERSON CAN ISSUE A NOTICE TO THAT PERSON AND ASSESS OR REASSESS HIS INCOME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THEREFORE, BEF ORE A NOTICE UNDER SECTION 153C CAN BE ISSUED TWO STEPS HAVE TO BE TAKEN. THE FIRST STEP IS THAT THE ASSESSING OFFICER OF THE PERSON WHO IS SEARCHED MUST ARRIVE AT A CLEAR SATISFACTION THAT A DOCUMENT SEIZED FROM HIM DOES NOT BELONG TO HIM BUT TO SOME OTH ER PERSON. THE SECOND STEP IS - AFTER SUCH SATISFACTION IS ARRIVED AT - THAT THE DOCUMENT IS HANDED OVER TO THE ASSESSING OFFICER OF THE PERSON TO WHOM THE SAID DOCUMENT BELONGS. IN THE PRESENT CASES, IT HAS BEEN URGED ON BEHALF OF THE PETITIONER THAT THE FIRST STEP ITSELF HAS NOT BEEN FULFILLED. FOR THIS PURPOSE IT WOULD BE NECESSARY TO EXAMINE THE PROVISIONS OF PRESUMPTIONS AS INDICATED ABOVE. SECTION 132(4A)(I) CLEARLY STIPULATES THAT WHEN, INTER ALIA, ANY DOCUMENT IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH IT MAY BE PRESUMED THAT SUCH DOCUMENT BELONGS TO SUCH PERSON. IT IS SIMILARLY PROVIDED IN SECTION 292C(1)(I). IN OTHER WORDS, WHENEVER A DOCUMENT IS FOUND FROM A PERSON WHO IS BEING SEARCHED THE NORMAL PRESUMPTION IS THAT THE SAID DOCUMENT BELONGS TO THAT PERSON. IT IS FOR THE ASSESSING OFFICER TO REBUT THE PRESUMPTION AND COME TO A CONCLUSION OR SATISFACTION THAT THE DOCUMENT IN FACT BELONGS TO SOMEBODY ELSE. THERE MUST BE SOME COGENT MATERIAL AVAILABLE WITH T HE ASSESSING OFFICER BEFORE HE/SHE ARRIVES AT THE SATISFACTION THAT THE SEIZED DOCUMENT DOES NOT BELONG TO THE SEARCHED PERSON BUT TO SOMEBODY ELSE. SURMISES AND CONJECTURES CANNOT TAKE THE PLACE OF SATISFACTION. 14. OTHER CASE LAWS RELIED UPON BY THE ASSESSEE ALSO EXPRESSES ALMOST THE SAME VIEW. THE LD D.R PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF MAK DATA LTD (SUPRA). IN OUR VIEW, THE SAID DECISION, INTER ALIA, TALKS ABOUT THE MANNER OF RECORDING THE SATIS FACTION. IN OUR VIEW, THE ABOVE SAID DECISION IS NOT RELEVANT HERE, SINCE THERE IS NO COGENT MATERIAL ON RECORD IN THE CASE OF SEARCHED PERSON I.T.A. NO. 4984 / MUM/201 4 9 TO SHOW THAT THE ASSESSING OFFICER HAS ARRIVED AT THE SATISFACTION AT THE TIME OF ASSESSING THE INCOME OF THE SEARCHED PERSON. 15. IN VIEW OF THE ABOVE, WE HOLD THAT THE SATISFACTION MANDATED IN SEC. 153C WAS NOT ARRIVED AT BY THE ASSESSING OFFICER WHILE EXAMINING/ASSESSING THE SEARCHED PERSON. IN THE ABSENCE OF THE SAME, THE NOTICE U/S 153C ISSUED TO THE ASSESSEE HEREIN IS BAD IN LAW, AGAINST THE STATUTORY MANDATE AND HENCE THE SAME IS LIABLE TO BE QUASHED. CONSEQUENTLY, THE IMPUGNED APPELLATE AND ASSESSMENT ORDER ALSO ARE LIABLE TO BE QUASHED. WE ORDER ACCORDINGLY. 16. ON MERITS ALSO, WE NOTICE T HAT THE IMPUGNED DOCUMENT (PAGE 53 OF ANNEXURE - I) APPEARS TO BE A LETTER WRITTEN BY THE ASSESSEE TO A PERSON NAMED SMT. PRITIBHABHI. IT TALKS ABOUT THE PAYMENT OF ADVANCE OF RS.3.00 CRORES TO THE OWNERS. IT ALSO TALKS ABOUT THE RECEIPT OF MONEY FROM SMT. PRITIBHABHI TO THE TUNE OF RS.1.52 CRORES. IT FURTHER TALKS ABOUT A CHEQUE IN THE NAME OF MR. JITENDRA MEHTA FOR A SUM OF RS.1,00,00,000/ - . IT FURTHER STATES THAT THE ASSESSEE HEREIN IS STATING THAT AS PER OUR DISCUSSION, I AM MAKING THE ENTIRE PAYMENT TOMORROW AND TAKING THE POSSESSION. A PERUSAL OF THE ABOVE SAID DOCUMENT WOULD SHOW THAT THE ASSESSEE SHRI DEVEN MEHTA HAS NO WHERE STATED THAT THE ADVANCE PAYMENT OF RS.3.00 CRORES WAS MADE BY HIM OUT OF HIS OWN FUNDS. ON THE CONTRARY, IT STATES THAT A CHEQUE AMOUNT FOR RS.1.00 CRORE IS IN THE NAME OF SHRI JITENDRA MEHTA. THUS, IT ONLY TALKS ABOUT A PROPERTY TRANSACTION ONLY. FURTHER, WE NOTICE THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY ENQUIRY WITH THE PERSON NAMED PRITIBHABHI, THE OWNERS OF THE PROPERTY OR JITENDRA MEHTA TO ASCERTAIN ABOUT THE VERACITY OF THE DOCUMENT AND FURTHER TO ESTABLISH THAT THE ADVANCE PAYMENT OF RS.3.00 CRORES STATED THEREIN WAS PAID BY THE ASSESSEE OUT OF HIS OWN FUNDS . ON THE CONTRARY, THE ASSESSING OFFICER ADMITTED IN THE REMAND REPORT DATED 20 - 02 - 2014 THAT THE SAID I.T.A. NO. 4984 / MUM/201 4 10 PROPERTY DOES NO T STAND IN THE NAME OF THE ASSESSEE, I.E., EVEN AFTER THE EXPIRY OF ABOUT FIVE YEARS FROM THE PRESENT ASSESSMENT YEAR , THUS SUPPORTING THE CONTENTION OF THE ASSESSEE THAT THE ABOVE SAID PROP ERTY TRANSACTION DID NOT FRUCTIFY . THUS, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION BY SIMPLY PLACING RELIANCE ON THE DOCUMENT WITHOUT MAKING ANY FURTHER ENQUIRY TO AUTHENTICATE THE SAME, WHICH IS NOT JUSTIFIED. 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE AB OVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24TH APR , 2015 . 24 TH APR , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 24TH APR ,2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI
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