DCIT, New Delhi V. M/s. Vision Town Planners Pvt. Ltd., Noida

ITA 6068/DEL/2014

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3526 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Loose papers; Document seized; Documents seized
• Section: 153A; 143(1); 201; 143(2); 13; 153; 22; 153C; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.AS. NO.6067 & 6068/DEL/2014 ASSESSMENT YEARS: 2010-2011 & 2011-12 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-19, NEW DELHI. VS. M/S. VISION TOWN PLANNERS PVT. LTD., NOIDA. TAN/PAN: AACCV9600Q (APPELLANT) (RESPONDENT) APPELLANT BY: MS. SUNITA SINGH, CIT-DR RESPONDENT BY: SHRI RAKESH JOSHI, CA DATE OF HEARING: 22 04 2021 DATE OF PRONOUNCEMENT: 24 05 2021 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEALS HAVE BEEN FILED BY THE REVENU E AGAINST THE IMPUGNED ORDER DATED 16.07.2014, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DE LHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.153C R.W.S. 15 3A FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12. THE COMMO N GROUNDS RAISED BY THE REVENUE IN BOTH THE YEARS REA D AS UNDER: 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN DELETING THE ADDITION BY HOLDING THAT THE ADDITIONS MADE WITHOUT ANY INCRIMINATING MATERIAL FOUND DURIN G THE COURSE OF SEARCH ARE OUTSIDE THE SCOPE OF SECTION 1 53A OF THE ACT, I.T.AS. NO.6067 & 6068/DEL/2014 2 WHEN SECTION 153A MANDATES THE ASSESSING OFFICER TO ASSESS OR RE-ASSESS THE TOTAL INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE WI THOUT GOING INTO THE MERITS OF THE CASE. 3. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2. THE FACTS IN BRIEF ARE THAT M/S. VISION TOWN PLA NNERS PVT. LTD WAS INCORPORATED UNDER THE COMPANIES ACT, 1956 ON 20/03/2009 TO CARRY ON THE BUSINESS OF REAL ESTATE. FOR THE ASSESSMENT YEAR 2010-11, ORIGINAL RETURN OF INCOME WAS FILED BY THE APPELLANT COMPANY ON 12.10.2010 DECLARING LO SS OF 97,880/-. IT WAS ACCEPTED AS SUCH U/S 143(1) OF THE I.T. ACT, 1961 VIDE INTIMATION ORDER DATED 25TH FEBRUARY, 201 1. SIMILARLY, FOR THE ASSESSMENT YEAR 2011-12, ORIGINA L RETURN OF INCOME WAS FILED BY THE APPELLANT COMPANY ON 30/09/ 2011 DECLARING LOSS OF 53,735/-. IT WAS ACCEPTED AS SUCH U/S 143(1) OF THE I.T. ACT, 1961 VIDE INTIMATION ORDER DATED 3 0TH MARCH, 2012. EARLIER IN THESE CASES, PROCEEDINGS U/S.153C WAS INITIATED FOR THESE CAPTIONED ASSESSMENT YEARS ON 2 7.07.2012, ON THE BASIS OF CERTAIN DOCUMENTS ALLEGEDLY BELONGI NG TO THE ASSESSEE COMPANY HAVING BEEN SEIZED DURING THE SEAR CH OPERATIONS CONDUCTED ON 07.12.2010 ON BPTP GROUP. THEREAFTER, ASSESSMENT WAS COMPLETED U/S.153C/153A DETERMINING THE INCOME OF RS.385,21,03,120/- VIDE O RDER DATED 28.03.2013. POST COMPLETION OF THE ASSESSMENT U/S.153C ON 28.03.2013, LD. ASSESSING OFFICER HAS R EINITIATED I.T.AS. NO.6067 & 6068/DEL/2014 3 THE PROCEEDINGS BY ISSUING FRESH NOTICE ON 26.09.20 13 ON THE BASIS OF TWO LOOSE PAPERS SEIZED DURING THE SEARCH ACTION ON M/S. AAKRITI HOTELS PVT. LTD. CONDUCTED ON 22.11.20 11. THE SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER ALONG WITH THE SEIZED DOCUMENTS (SCAN COPY) IS INCORPORATED HE REIN:- I.T.AS. NO.6067 & 6068/DEL/2014 4 I.T.AS. NO.6067 & 6068/DEL/2014 5 3. HOWEVER, IN THE IMPUGNED ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MERELY REITERATED THE EARLIER ASSESSMENT ORDER AND INSTEAD OF RAISING ANY QUERY REGARDING SA TISFACTION NOTE OR SEIZED DOCUMENTS, HE SHOW CAUSED/ASKED THE ASSESSEE, AS TO WHY THE ASSESSMENT MAY NOT BE FINAL IZED ON THE BASIS OF MATERIAL DISCUSSED IN RESPECT OF EARLI ER ASSESSMENT PROCEEDINGS AVAILABLE ON RECORD. THE REL EVANT PORTION OF HIS ORDER IN THIS REGARD READS AS UNDER: VII. AFTER GIVING DUE CONSIDERATION TO THE ORDER PA SSED AND AS REPRODUCED ABOVE, THE ASSESSEE WAS SHOW CAUSED VIDE ORDER SHEET NOTING DATED 3.3.2014 AS TO WHY THE ASSESSMEN T MAY NOT I.T.AS. NO.6067 & 6068/DEL/2014 6 BE FINALIZED ON THE BASIS OF MATERIAL IN RESPECT OF EARLIER ASSESSMENT PROCEEDING AVAILABLE ON RECORD. IN RESPO NSE TO THE SAME, THE ASSESSEE FURNISHED ITS REPLY VIDE LETTER DATED 21.03.2014, WHICH IS REPRODUCED AS UNDER: 4. THE ASSESSEE OBJECTED TO THE PROPOSAL OF THE ASS ESSING OFFICER ON VARIOUS GROUNDS WHICH IN SUMS AND SUBSTA NCE CAN BE SUMMARIZED AS UNDER: THESE SEIZED TWO LOOSE PAPERS DO NOT BELONG TO THE APPELLAI COMPANY. ONE OF THE SEIZED PAPERS IS A CERTIFIED TRUE COPY OF TH BOARD RESOLUTION DATED 05.11.2011, AUTHORIZING AJAY KUMA GAUTAM, AGM, PROJECTS FOR VAT REGISTRATION AND SIGNED BY THE DIRECTOR. THIS PAPER, ONCE ISSUED AND DISPATCHED BY THE COMPANY NO MORE BELONGS TO THE APP ELLANT COMPANY. ANOTHER LOOSE PAPER IS A COMPUTER GENERATED PAPER, W HICH MAKES MENTION OF A LIST OF DOCUMENTS REQUIRED FOR UNDERTAKING A SPECIFIC JOB, FOR COMPLETION OF WHICH F ROM SOME GOVT./CIVIC AGENCY, REQUIREMENT OF DOCUMENTS SUCH AS COPY OF ITR/PAN CARD, MOA, RESOLUTIONS, BANK STATEMENTS , MINUTES OF AGM ETC. HAS BEEN NOTED DOWN BY SOMEONE. TH E DOCUMENTS ENUMERATED ON THIS PAPER APPEAR TO BE MENTIONED BY SOMEONE, FOR HIS OWN INFORMATION AND USE , WHICH COULD BE REQUIRED FOR CERTAIN OFFICIAL PURPOSE . THESE TWO LOOSE PAPERS HARDLY FORM 'BOOKS OF ACCOU NT OR DOCUMENT' AS ENVISAGED IN SECTION 153C, WHICH MAY ENA BLE THE AO TO INITIATE PROCEEDINGS U/S.153C. FURTHER THESE SEIZED PAGES ARE NOT IN THE NATURE OF INCRIMINATING DOCUMENTS SUGGESTING PRIMA-FACIE BELIEF OF HIDDEN INC OME. I.T.AS. NO.6067 & 6068/DEL/2014 7 FURTHER NEITHER OF THEM RELATE TO THE ASSESSMENT YEAR UND ER CONSIDERATION. THE ASSESSING OFFICER SHOULD NOT HAVE PROCEEDED MECHANICALLY IN ISSUING THE NOTICES U/S 15 3C. THESE TWO SEIZED PAPERS NEITHER BELONG TO THE ASSESSE E NOR ARE OF THE NATURE AS TO BE CALLED 'BOOKS OF ACCOUNT OR DOCUMENT', NOR ARE OF ANY SIGNIFICANCE OR FINANCIAL W ORTH. THESE HAVE ABSOLUTELY NO RELEVANCE TO THE ASSESSMENT OR INITIATION OF ASSESSMENT. 5. APART FROM THAT, VARIOUS JUDGMENTS WERE ALSO RELI ED UPON FOR THE PROPOSITION THAT, SINCE NO INCRIMINATI NG DOCUMENTS HAVE BEEN FOUND AS PER THE SATISFACTION N OTE IN THE SEIZED DOCUMENTS, THEREFORE, NO ADDITION CAN BE MADE IN THE PRESENT PROCEEDINGS U/S.153C. 6. LD. ASSESSING OFFICER HOWEVER DID NOT ACCEPT THE ASSESSEES CONTENTION AND USING THE SAME LANGUAGE O F THE EARLIER ASSESSMENT ORDER REPEATED THE SAME ADDITION OF RS.385,21,02,120/-. THUS, THE EARLIER ASSESSMENT OR DER DATED 28.03.2013 HAS BEEN VERBATIM REITERATED IN THE IMPU GNED ASSESSMENT ORDER DATED 31.03.2014. 7. LD. CIT (A) HAS QUASHED/DELETED THE ASSESSMENT A FTER OBSERVING AND HOLDING AS UNDER:- I HAVE CONSIDERED THE ASSESSMENT ORDER, WRITTEN SU BMISSION AND ORAL ARGUMENTS OF LD. AR. THE ASSESSMENT FOR BOTH ASSESSMENT YEARS WAS MADE E ARLIER U/S 153C ON 28.03.2013. IN PRESENT ASSESSMENT PROCE EDINGS, THE SAME ADDITION HAS BEEN REPEATED. I.T.AS. NO.6067 & 6068/DEL/2014 8 THE MAIN ARGUMENTS OF LD. AR ARE THAT THE SEIZED PA PER FOUND DURING THE PRESENT SEARCH PROCEEDINGS U/S 132 IN TH E CASE OF M/S AKRITI HOTELS PVT. LTD ON 22.11.2011, RELIED IN THE SATISFACTION RECORDED U/S 153C ARE NOT INCRIMINATIN G IN NATURE & DO NOT BELONG TO THE APPELLANT. WITHOUT GOING INTO THE CONTROVERSY OF WHETHER THE S EIZED DOCUMENTS RELIED UPON BELONG TO THE APPELLANT OR NO T, I WILL EXAMINE THE CONTENTS OF SEIZED DOCUMENT WHETHER THE SAME IS INCRIMINATING OR NOT. I HAVE PERUSED THE ENTIRE ASSESSMENT ORDER AND THE NATURE OF SEIZED DOCUMENTS RELIED UPON. NOWHERE IN THE ASSESS MENT ORDER, THE CONTENTS OF THE SEIZED DOCUMENTS ARE DIS CUSSED AND THERE IS NO LINKAGE BETWEEN THE ADDITIONS MADE FOR BOTH THE ASSESSMENT YEARS WITH THE SEIZED DOCUMENTS RELIED U PON IN THE SATISFACTION NOTES. IN VIEW OF THE ABOVE FACTS, I INTEND TO AGREE WITH THE ARGUMENTS OF LD. AR THAT THE DOCUMEN TS RELIED UPON IN THE SATISFACTION NOTES U/S 153C ARE NOT INC RIMINATING IN NATURE FOR ASSESSMENT OF INCOME. NOW THE ISSUE IS WHETHER IN ABSENCE OF ANY INCRIMIN ATING SEIZED DOCUMENTS FOR ANY ASSESSMENT YEAR, ADDITION CAN BE MADE U/S 153C READ WITH SECTION 153A IN RESPECT OF CLOSED ASSESSMENT. PRESENT CASE I.E. FOR A.Y. 2010-11 & 20 11-12 IN APPELLANT WAS ASSESSED EARLIER U/S 153C THEREFORE, DEFINITELY BOTH THE ASSESSMENT ARE CLOSED ASSESSMENT. LD. AR R ELIED UPON THE DECISION OF JAI STEEL INDIA VS. ACIT (259 CTR 281) RAJ. & SINGHAD TECHNICAL EDUCATION SOCIETY VS. ACIT (ITAT, PUNE), WHERE IT HAS BEEN HELD THAT OTHER PERSON (NO T SEARCHED) CANNOT BE PROCEEDED AGAINST SUCH PERSONS U/S 153C U NLESS I.T.AS. NO.6067 & 6068/DEL/2014 9 DOCUMENTS / PAPERS SEIZED BELONGS TO SUCH PERSON & ARE OF INCRIMINATING IN NATURE. LD. AR HAS FURTHER RELIED UPON THE DECISION OF HON ABLE ITAT, PUNE IN THE CASE OF KUMAR & COMPANY DT.02.02.2010 W HERE IT HAS BEEN HELD THAT DOCUMENTS RELIED FOR PROCEEDING U/S 153C MUST BE PRIMA FACIE INCRIMINATING. INCRIMINATING NA TURE OF THE SEIZED DOCUMENT IS AN ESSENTIAL FACTOR FOR THE PROC EEDINGS U/S 153C. LD. AR HAS FURTHER RELIED UPON THE DECISION O F S.B. OF ITAT, MUMBAI VIDE ORDER DT.06.07.2012 IN THE CASE O F ALL CARGO LOGISTICS LTD. VS. DCIT, WHERE IT HAS BEEN HE LD THAT ASSESSMENT U/S 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. LD. AR ARGUED THAT THE ASSESSMENT U/S 153C IS BASED ON THE PROVIS IONS OF SECTION 153 A THEREFORE; THE DECISION WILL BE SQUAR ELY APPLICABLE FOR ASSESSMENT U/S 153C ALSO. LD.AR FURT HER ARGUED THAT HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. ANIL KUMAR BHATIA (ITA NO. 1626, 1632,1998,2006,201 9 & 2020) ALSO HAD NOT GIVEN OPINION FOR THE SCOPE OF A SSESSMENT U/S 153A WHERE NO INCRIMINATING DOCUMENTS HAVE BEEN SEIZED. HONBLE ITAT SMC DELHI, IN THE CASE OF PARI VAR PROPERTIES PVT. LTD NEW DELHI, VS. DCIT, CC-12, NEW DELHI HAS DECIDED THAT ADDITION CAN BE MADE WITHOUT INCRIMINA TING DOCUMENTS IN ONLY IN THE CASE OF OPEN ASSESSMENT U/ S REBATED ASSESSMENT 153A/153C LD. AR RELIED UPON THE DECISIO N OF SSP AVIATION LTD. VS. DCIT (2012) 346 ITR 0177 (DEL ), LMJ INTERNATIONAL LTD. (2008) 22 SOT 315 KOL, MGF AUTOM OBILES LTD. VS. ACIT CC-7, NEW DELHI (ITA NOS. 4212 & 4213/DEL/2011, ITAT E BENCH, NEW DELHI. I.T.AS. NO.6067 & 6068/DEL/2014 10 LD. AR FURTHER ARGUED THAT IN THE AMENDMENT IN BUDG ET-2014 U/S 153C REQUIRED THAT THE PAPER ON THE BASIS OF WH ICH SATISFACTION IS RECORDED MUST BEARING ON THE DETERM INATION OF INCOME. FURTHER, WE WOULD LIKE TO DRAW YOUR ATTENTION TO T HE FACT THAT THE INTENTIONS OF THE LEGISLATURE ARE ALSO CLEAR. I N THIS REGARD, AS CHANGES HAVE BEEN INTRODUCED BY FINANCE BILL 201 4, TO AMEND SECTION 153C OF THE INCOME TAX ACT, 1961. AS PER THE BUDGET-2014, CLAUSE 53 OF THE FINANCE BILL SEEKS TO AMEND SECTION 153C OF THE ACT SO AS TO ENABLE THE INCOME TAX DEPARTMENT TO PROCEED AGAINST THE OTHER PERSON, T HE DOCUMENTS/PAPERS/BOOKS OF ACCOUNT BELONGING TO WH OM, HAVE BEEN SEIZED, ONLY IN THE EVENT OF THOSE SEIZED PAPERS/DOCUMENTS/BOOKS OF ACCOUNT BEING OF SUCH NAT URE AS TO HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF THE SAID OTHER PERSON. I HAVE CONSIDERED ENTIRE JUDICIAL PRONOUNCEMENTS RE LIED BY LD. AR. AS I HAVE HELD EARLIER THAT THERE IS NO INCRIMI NATING DOCUMENTS RELIED UPON IN THE SATISFACTION NOTE RECO RDED U/S 153C, IN PRESENT CASE, IN MY VIEW NO ADDITION CAN B E MADE UNDER THIS CIRCUMSTANCES. IN FACT, DECISION OF JURI SDICTIONAL HIGH COURT OF DELHI IN THE CASE OF SH. ANIL KUMAR B HATIA ALSO DOES NOT SUPPORT AS THERE IS NO INCRIMINATING DOCUM ENTS EVEN FOR ONE ASSESSMENT YEAR COVERED U/S 153C. ACCORDING LY, ADDITION MADE BY THE ASSESSING OFFICER FOR BOTH THE ASSESSMENT YEARS ARE/HEREBY DELETED. THESE GROUNDS OF APPEALS ARE ALLOWED FOR BOTH THE ASSESSMENT YEARS. I.T.AS. NO.6067 & 6068/DEL/2014 11 8. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE REL EVANT MATERIAL REFERRED TO BEFORE US AND ALSO THE RELEVAN T FINDING GIVEN IN THE IMPUGNED ORDER. ADMITTEDLY, THE PRESEN T PROCEEDINGS U/S.153C WHICH HAS BEEN INITIATED VIDE NOTICE DATED 26.09.2013 IS BASED ON SEARCH AND SEIZURE ACT ION ON M/S. AAKRITI HOSPITAL PVT. LTD. CONDUCTED ON 22.11. 2011. THE CONTENT OF SATISFACTION NOTE AND THE SEIZED DOCUM ENTS HAVE ALREADY BEEN INCORPORATED ABOVE. FROM A BARE PERUSA L OF THE SEIZED DOCUMENTS AS WELL AS SATISFACTION NOTE, IT C AN BE SEEN THAT, THE DOCUMENTS WHICH WERE FOUND WERE IN THE NA TURE OF, AUTHORIZATION FOR VAT REGISTRATION IN THE LETTER OF M/S. VISION TOWN PVT. LTD. WHICH WAS SIGNED BY ITS DIRECTOR AND CERTAIN LIST OF DOCUMENTS REQUIRED WHICH WERE MOSTLY STATUT ORY RECORD LIKE CASH BOOK, BILLS, VOUCHERS AND JOURNALS FOR VAR IOUS FINANCIAL YEARS, DIRECTORS REPORT, BALANCE SHEET, NOTICE FOR RESOLUTION, COPIES FOR RECORDING MINUTES OF BOARD M EETING, MINUTES OF AGL, APPLICATION FOR PAN, MOA, TRANSFER DEED OF TRANSFER OF SHARES, ETC. NONE OF THESE DOCUMENTS HA VE BEEN REFERRED OR HAS BEEN DISCUSSED OR HAS BEEN MADE THE BASIS FOR THE PRESENT ASSESSMENT ORDER NOR DO THEY HAVE ANY C O- RELATION WITH THE ADDITION WHICH HAS BEEN MADE. IN FACT, THE ASSESSING OFFICER HAS REITERATED THE SAME ASSESSMEN T ORDER AND THE ADDITIONS WHICH WERE MADE IN THE EARLIER AS SESSMENT ORDER DATED 28.03.2013, WHICH WAS PASSED IN PURSUAN CE OF EARLIER PROCEEDINGS U/S.153C INITIATED VIDE NOTICE DATED 27.01.2012, WHICH AGAIN IN TURN WAS BASED ON ALL TO GETHER I.T.AS. NO.6067 & 6068/DEL/2014 12 DIFFERENT SEARCH OPERATION CONDUCTED ON 07.12.2010 ON BPTP GROUP. 9. ADMITTEDLY, BOTH THE ASSESSMENT YEARS I.E. A.Y. 2010-11 AND 2011-12 ARE NON-ABATED ASSESSMENT YEAR AS PER P ROVISO TO SECTION 153A OF THE ACT, WHICH IS CLEAR FROM THE FOLLOWING CHART SUMMARIZING THE VARIOUS EVENTS:- PARTICULARS A.Y. 2010 - 11 A.Y. 2011 - 12 1. SEARCH ON AKRITI HOTEL. P. LTD. 22.11.2011 22.11.2011 2. NOTICE ISSUED U/S. 153C 26.09.2013 26.09.2013 3. DEEMED DA TE OF SEARCH AS PER PROVISO TO SECTION 153C(1) 26.09.2013 26.09.2013 4. RETURN FILED U/S.139 12.10.2010 30.09.2011 5. LAST DATE OF ISSUE NOTICE U/S. 143(2) 30.09.2011 30.09.2012 6. ASSESSMENT COMPLETED U/S.143(1) 25.02.2011 30.03.2012 THOUGH THERE IS NO DATE MENTIONED IN THE SATISFACTI ON NOTE RECORDED BY THE ASSESSING OFFICER, BUT CERTAINLY IT WAS MUCH AFTER THE EARLIER 153C PROCEEDING WHICH WAS CONCLUD ED VIDE ASSESSMENT ORDER 28.03.2013. IT IS NOT THE CASE HER E NOR HAS BEEN BROUGHT ON RECORD THAT ASSESSING OFFICER HAD R ECEIVED THESE DOCUMENTS SEIZED IN AKRUTI SEARCH WHICH WAS O N 22.11.2011 AND SATISFACTION WAS RECORDED IN AND ARO UND AT THAT TIME. HAD BEEN SO, THEN HE NEED NOT HAD TO INI TIATE SEPARATE PROCEEDINGS U/S153C AGAIN AND COULD HAVE I.T.AS. NO.6067 & 6068/DEL/2014 13 DISCUSSED THE SAME IN THE THEN ON-GOING EARLIER PRO CEEDINGS. ERGO, IT IS VERY CLEAR THAT THE DEEMED DATE OF SEAR CH HERE IN THIS CASE IS MUCH AFTER 28.03.2013, BECAUSE EARLIER PROCEEDINGS U/S 153C WAS CULMINATED INTO ASSESSMENT ORDER ON THIS DATE. THE PRESENT PROCEEDINGS ARE FRESH PRO CEEDINGS U/S 153C IN WAKE OF ANOTHER SEARCH IN ALTOGETHER DI FFERENT ENTITY AND THAT IS WHY FRESH NOTICES WERE ISSUED ON 26.09.2013. 9. BEFORE US, THE LD. CIT-DR THOUGH ADMITTED THAT I N THE PRESENT ASSESSMENT ORDER NO FRESH ADDITION HAS BEEN MADE ON THE BASIS OF ANY SEIZED OR INCRIMINATING MATERIAL O R DOCUMENTS, BUT THE ASSESSING OFFICER WAS COMPLETELY JUSTIFIED IN REITERATING THE SAME ASSESSMENT IN THE PRESENT A SSESSMENT ORDER FOR THE REASON THAT EARLIER ASSESSED INCOME H AS TO BE REITERATED IN THE PRESENT ASSESSMENT ORDER. 10. ON THE OTHER HAND, LD. COUNSEL HEAVILY RELIED U PON THE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT NOW ISS UE STANDS COVERED BY THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA, REPORTED IN 380 ITR 573 (DELH I) , AND LATEST DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF PCIT VS. ALLIED PERFUMES P. LTD. (2021 ) 431 ITR 237 (DELHI) . HE ALSO RELIED UPON THE JUDGMENT OF HONBLE SUPREM E COURT IN THE CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (397 ITR 344) (SC) . ONCE THE PRESENT ASSESSMENT ORDER HAS BEEN FRAMED WITHOUT ANY FRESH MATERIAL OR ANY INCRIMINATING DOCUMENTS, THEN NO ADDITION CAN BE MA DE AND I.T.AS. NO.6067 & 6068/DEL/2014 14 THE FATE OF THE EARLIER ASSESSMENT ORDER WOULD DEPE ND UPON THE FACTS AND ISSUE INVOLVED THEREIN WHICH MATTER I S SUBJUDICE . IN SO FAR AS PRESENT APPEALS ARE CONCERNED, THE ADDITIONS HAVE NO LEG TO STAND. HE SUBMITTED THAT, IT HAS RIGHTLY BEEN OBSERVED BY THE LD. CIT (A) THAT THE N ATURE OF SEIZED DOCUMENTS REFERRED IN THE SATISFACTION NOTE AND THE CONTENTS THEREIN HAS NO LINKAGE BETWEEN ADDITIONS M ADE FOR BOTH THE ASSESSMENT YEARS. IN FACT, THESE DOCUMENTS ARE NOWHERE IN THE NATURE OF INCRIMINATING MATERIAL FOR MAKING ANY ADDITION U/S.153C/153A. THUS, IN VIEW OF VARIOU S SETTLED PRINCIPLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT, WHEREIN IT HAS BEEN HELD THAT ONCE THE ADDITION HAS BEEN MADE WITHOUT ANY INCRIMINATING MATERIAL OR DOCUMENT ESPECIALLY FOR UNABATED ASSESSMENT THEN SUCH ADDITI ONS CANNOT BE ROPED IN ASSESSMENT MADE U/S.153A. IT HAS BEEN CATEGORICALLY HELD THAT COMPLETED ASSESSMENT CAN BE INFERRED BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMEN T U/S.153A ONLY ON THE BASIS OF SAME INCRIMINATING UN EARTH DURING THE COURSE OF SEARCH OR ACQUISITION OF DOCUM ENT OR ANY UNDISCLOSED INCOME DISCOVERED DURING THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR HAVE NOT BEEN ALREADY DI SCLOSED. THESE PRINCIPLES OF CIT VS. KABUL CHAWLA HAVE BEEN REITERATED IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA 395 ITR 526 (DEL), HAVE BEEN ELABORATED IN GREAT DETAIL . FURTHER, HONBLE SUPREME COURT IN CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (397 ITR 344) (SC) WHEREIN EXACTLY SIMILAR LEGAL/TECHNICAL GROUND WAS TAKEN FOR THE FI RST TIME I.T.AS. NO.6067 & 6068/DEL/2014 15 BEFORE THE ITAT, THE HONBLE APEX COURT HELD THAT ADDITION CANNOT BE MADE IN THE YEARS WHERE THERE IS NO INCRI MINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH EVEN IN THE CONTEXT OF PROCEEDINGS U/S 153C. 11. WE ARE IN TANDEM WITH THE SUBMISSIONS OF THE LD. COUNSEL THAT, IN THE PRESENT ASSESSMENT ORDERS PASS ED U/S 153C/153A ARE NOT BASED ON SEIZED DOCUMENTS OR SATI SFACTION NOTE, ALBEIT, ARE REPETITION OF EARLIER ASSESSMENT ORDER (SUPRA) AND SAME ADDITION HAS BEEN REITERATED. IF ASSESSING OFFICER HAS INITIATED FRESH ASSESSMENT PROCEEDINGS U/S 153C VIDE NOTICE DATED 26.09.2013, ARISING OUT DIFFERENT SEAR CH ON 22.11.2011 CARRIED IN THE CASE M/S. AKRITI HOTEL. P . LTD., THEN THE PRESENT ASSESSMENT PROCEEDINGS HAS TO BE BASED ON THIS SEARCH AND MATERIALS FOUND IN THIS SEARCH AND ALL T HE PROVISIONS OF SECTIONS 153A TO 153D SHALL APPLY. FU RTHER, AS DISCUSSED ABOVE AND IT IS AN ADMITTED POSITION THAT , THESE ASSESSMENT YEARS ARE UNABATED ASSESSMENTS AND HENCE IN VIEW OF THE AFORESAID CITED JUDGEMENTS AND PRINCIPLE S LAID DOWN IN CIT VS. KABUL CHAWLA AND PRINCIPAL CIT VS. MEETA GUTGUTIA (SUPRA) THE ASSESSMENT AND ADDITIONS CAN BE MADE ONLY ON THE BASIS OF ANY INCRIMINATING DOCUMENTS FO UND DURING THE SEARCH OR REFERRED TO IN THE SATISFACTIO N NOTE, WHICH HAS NOT BEEN DONE. 12. FURTHER, HONBLE SUPREME COURT IN CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (397 ITR 344) ( SC) APART FROM THE FACT THAT SIMILAR LEGAL/TECHNICAL GR OUND WAS I.T.AS. NO.6067 & 6068/DEL/2014 16 TAKEN FOR THE FIRST TIME BEFORE THE ITAT, THOUGH WH ICH IS NOT THE CASE HERE, BUT FURTHER, THE HONBLE APEX COURT UPHELD THE ORDER OF THE TRIBUNAL THAT ADDITION CANNOT BE MADE FOR THE ASSESSMENT YEARS FOR WHICH THERE ARE NO INCRIMINATI NG DOCUMENTS FOUND DURING THE COURSE OF SEARCH IN THE ASSESSMENTS FRAMED U/S 153C. THE HONBLE COURT UPHE LD THE ORDER OF THE TRIBUNAL IN THE FOLLOWING MANNER:- 16) IN THESE APPEALS, QUA THE AFORESAID FOUR ASSESS MENT YEARS, THE ASSESSMENT IS QUASHED BY THE ITAT (WHICH ORDER IS UPHELD BY THE HIGH COURT) ON THE SOLE GROUND THA T NOTICE UNDER SECTION 153C OF THE ACT WAS LEGALLY UNSUSTAIN ABLE. THE EVENTS RECORDED ABOVE FURTHER DISCLOSE THAT THE ISSUE PERTAINING TO VALIDITY OF NOTICE UNDER SECTION 153C OF THE ACT WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL A ND THE TRIBUNAL PERMITTED THE ASSESSEE TO RAISE THIS ADDIT IONAL GROUND AND WHILE DEALING WITH THE SAME ON MERITS, ACCEPTED THE CONTENTION OF THE ASSESSEE. 17) FIRST OBJECTION OF THE LEARNED SOLICITOR GENERA L WAS THAT IT WAS IMPROPER ON THE PART OF THE ITAT TO ALLOW TH IS GROUND TO BE RAISED, WHEN THE ASSESSEE HAD NOT OBJECTED TO THE JURISDICTION UNDER SECTION 153C OF THE ACT BEFORE T HE AO. THEREFORE, IN THE FIRST INSTANCE, IT NEEDS TO BE DE TERMINED AS TO WHETHER ITAT WAS RIGHT IN PERMITTING THE ASSESSE E TO RAISE THIS GROUND FOR THE FIRST TIME BEFORE IT, AS AN ADDITIONAL GROUND. 18) THE ITAT PERMITTED THIS ADDITIONAL GROUND BY G IVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE I.T.AS. NO.6067 & 6068/DEL/2014 17 BASIS OF FACTS ALREADY ON THE RECORD AND, THEREFORE , COULD BE RAISED. IN THIS BEHALF, 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 ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS 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 PROVISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONING TO BE LOGICAL AND VALID, HAVING REGARD TO THE PROVISIONS OF SECTION 153C 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 DI SCLOSED THEREIN WAS CULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMENT YEAR 2004-05 THEREAFTER. AFTER TAKING NOTE OF THE MATERIAL IN PARA 9 OF THE ORDER, THE POSITION T HAT EMERGES THEREFROM IS DISCUSSED IN PARA 10. IT WAS SPECIFICA LLY RECORDED THAT THE COUNSEL FOR THE DEPARTMENT COULD NOT POINT OUT TO THE CONTRARY. IT IS FOR THIS REASON THE HIGH COURT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF THE TRIBUNAL. THAT APART, LEARNED SENIOR COUNSEL APPEAR ING FOR THE RESPONDENT, ARGUED THAT NOTICE IN RESPECT OF AS SESSMENT YEARS 2000-01 AND 2001-02 WAS EVEN TIME BARRED. 19) WE, THUS, FIND THAT THE ITAT RIGHTLY PERMITTED THIS ADDITIONAL GROUND TO BE RAISED AND CORRECTLY DEALT WITH THE I.T.AS. NO.6067 & 6068/DEL/2014 18 SAME GROUND ON MERITS AS WELL. ORDER OF THE HIGH CO URT AFFIRMING THIS VIEW OF THE TRIBUNAL IS, THEREFORE, WITHOUT ANY BLEMISH. BEFORE US, IT WAS ARGUED BY THE RESPONDENT THAT NOTICE IN RESPECT OF THE ASSESSMENT YEARS 2000-01 A ND 2001-02 WAS TIME BARRED. HOWEVER, IN VIEW OF OUR AFOREMENTIONED FINDINGS, IT IS NOT NECESSARY TO ENT ER INTO THIS CONTROVERSY. THE SEQUITUR OF THE JUDGMENT WHICH CAN BE CULLED OUT IS THAT, SEIZED INCRIMINATING MATERIAL HAS TO PERTAIN TO THE ASSESSMENT YEAR IN QUESTION AND HAVE CO-RELATION, D OCUMENT- WISE, WITH THE ASSESSMENT YEAR. THIS REQUIREMENT U/ S 153C IS ESSENTIAL AND BECOMES A JURISDICTIONAL FACT. IT IS AN ESSENTIAL CONDITION PRECEDENT THAT ANY MONEY, BULLION OR JEWE LLERY OR OTHER VALUABLE ARTICLES OR THING OR BOOKS OF ACCOUN TS OR DOCUMENTS SEIZED OR REQUISITIONED SHOULD BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN S. 153A. THIS JUDGMENT OF THE HONBLE SUPREME COURT CLEARLY CLINCHES THE ISSU E IN FAVOUR OF THE ASSESSEE IN THIS CASE. 13. RECENTLY, HONBLE DELHI HIGH COURT IN CASE OF PCIT VS. ALLIED PERFUMES P LTD. (2021 ) 431 ITR 237 (DELHI) HELD AS UNDER:- 13. UPON READING OF THE AFORESAID EXTRACTED PORTION OF THE IMPUGNED ORDER, IT IS CLEARLY DISCERNABLE THAT THE ITAT HAS GIVEN A FINDING OF FACT THAT THE ASSESSMENTS MAKE N O REFERENCE TO THE SEIZED MATERIAL OR ANY OTHER MATERIAL FOR TH E YEARS UNDER CONSIDERATION, THAT WAS FOUND DURING THE COUR SE OF SEARCH, IN THE CASE OF THE ASSESSEE. MR. MARATHA IS ALSO I.T.AS. NO.6067 & 6068/DEL/2014 19 UNABLE TO POINT OUT ANY INCRIMINATING MATERIAL RELA TED TO THE ASSESSEE WHICH COULD JUSTIFY THE ACTION OF THE REVE NUE. MERELY BECAUSE A SATISFACTION NOTE HAS BEEN RECORDED, CANN OT LEAD US TO REACH TO THIS CONCLUSION, ESPECIALLY WHEN THE RE VENUE HAS NOT LAID ANY FOUNDATION TO SUPPORT THEIR CONTENTION . IN THE FACTUAL BACKGROUND AS EXPLAINED ABOVE, THE ASSUMPTI ON OF JURISDICTION UNDER SECTION 153C CANNOT BE SUSTAINED IN VIEW OF THE DECISION OF THIS COURT IN THE CASE OF KABUL CHA WLA (SUPRA) 14. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE AND THE AFORESAID BINDING JUDICIAL PRECEDENCE, WE HOLD THAT THE PRESENT ADDITIONS WHICH HAS BEEN MADE IN T HE PRESENT ASSESSMENT ORDERS PASSED U/S.153C/153A, WHI CH ARE UNABATED ASSESSMENTS, IS BEYOND THE SCOPE AND PURVI EW OF SECTION 153C/153A. FIRSTLY, FOR THE REASON THAT NO INCRIMINATING DOCUMENTS OR MATERIAL HAVE BEEN REFER RED IN THE PRESENT ASSESSMENT ORDER RELATING TO THE ADDITI ON; AND SECONDLY, THE ASSESSING OFFICER HAS MERELY REITERAT ED THE ADDITION WHICH WERE MADE IN THE EARLIER ROUND OF PR OCEEDINGS U/S.153C. ACCORDINGLY, WE HOLD THAT LD. CIT (A) IS JUSTIFIED IN DELETING THE ADDITIONS ON THIS GROUND. 15. IN THE RESULT, THE APPEALS OF THE REVENUE ARE D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH MAY, 2021 SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 24/05/2021 PKK: