ACIT CEN CIR 32, MUMBAI V. MARTAND PROPERTIES LTD, MUMBAI

ITA 6103/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0232 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP V LAKHANI
• Assessee Lawyers: N P SINGH
• Keywords: Bogus Share capital; Unexplained investment; Search and seizure; Loose papers; Share purchase agreement; Period of limitation; Assessment record; Time period of passing order; Retraction; Documents seized
• Section: 142(1); 133A; 153A; 147; 131; 148; 132; 139; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6101/MUM/2012 (ASSESSMENT YEAR- 2009-10) A.C.I.T., CC -32, ROOM NO. 32(2), GROUND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MARINE LINES, MUMBAI- 400020 VS. M/S MARTAND PROPERTIES LTD. 324, BLDG. NO.F, MASTER MIND IV 3 RD FLOOR, ROYAL PALMS, AAREY COLONY, GOREGAON (E), MUMBAI-400065 PAN: AAFCM8856N (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.255/MUM/2014 (ASSESSMENT YEAR- 2 009-10) M/S MARTAND PROPERTIES LTD. 324, BLDG. NO.F, MASTER MIND IV 3 RD FLOOR, ROYAL PALMS, AAREY COLONY, GOREGAON (E), MUMBAI-400065 PAN: AAFCM8856N VS. A.C.I.T., CC -32, ROOM NO. 32(2), GROUND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MARINE LINES, MUMBAI- 400020 (APPELLANT) (RESPONDENT) ITA NO.6103/MUM/2012 (ASSESSMENT YEAR- 2010-11) A.C.I.T., CC -32, ROOM NO. 32(2), GROUND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MARINE LINES, MUMBAI- 400020 VS. M/S MARTAND PROPERTIES LTD. 324, BLDG. NO.F, MASTER MIND IV 3 RD FLOOR, ROYAL PALMS, AAREY COLONY, GOREGAON (E), MUMBAI-400065 PAN: AAFCM8856N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI N.P. SINGH (DR) REVENUE BY : SHRI DILIP V. LAKHANI (AR) DATE OF HEARING : 18.04.2017 DATE OF PRONOUNCEMENT : 26.05.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 2 PER PAWAN SINGH, JUDICIAL MEMBER: 1. THESE TWO APPEAL U/S 253 OF THE INCOME-TAX ACT (THE ACT) ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF LD. CIT (A)-41, MUMBAI DATED 23.07.2012 FOR ASSESSMENT YEAR 2009-10 AND 2011-12. THE ISSUE INVOLVED IN BOT H THE APPEALS AND CROSS OBJECTION (C.O) ARE COMMON THEREFORE, BOTH THE APPE AL AND C.O. WERE HEARD TOGETHER AND ARE BEING DECIDED BY THIS CONSOLIDATED ORDER TO AVOID THE CONFLICTING DECISION. FOR APPRECIATION OF FACT, WE ARE REFERRIN G THE FACTS IN APPEAL NO.ITA NO.6101/M/2012 FOR AY 2009-10. THE ASSESSEE HAS RAI SED THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW. THE LD. CIT(A) IS JUSTIFIED IN ALLOWING THE ADDITION MADE OF RS. 5 ,00,00,000/- U/S 68 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARE CAPITAL OF VARIOUS COMPANIES. WITHOUT APPRECIATING THE FACT THAT THE ASSESSMENT ORDER FRA MED AFTER DUE VERIFICATION. 2. WHETHER ON FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW. THE LD. CIT(A) IS JUSTIFIED IN ALLOWING THE ADDITION MADE OF RS. 2 ,00,00,000/- U/S 68 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARE CAPITAL OF VARIOUS COMPANIES, WITHOUT APPRECIATING THE FACT THAT THE ASSESSMENT ORDER FRAMED AFTER DUE VERIFICATION. 2. THE ASSESSEE IN ITS C.O. NO. 255/M/2014 IN ITA NO. 6101/M/2012 RAISED THE FOLLOWING GROUNDS OF OBJECTION/ APPEAL: 1. WHETHER ON FACTS & CIRCUMSTANCES OF THE CASE THE LD . CIT HAS ERRED IN CONCLUDING THAT THE ACTION OF THE LEARNED ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SECTION 153C IS JUSTIFIED. THE APPELLANT PRAYS THAT THE CONDITION OF SECTION 153C IS NOT SATISFIED AND THE LEARNED ASSESSING OFFICER HAS WRONGLY INVOKED THE PROVISIONS OF SECTION 153C. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZU RE ACTION U/S 132 OF THE ACT WAS CONDUCTED ON 04.03.2010 AT THE BUSINESS PREMISES OF JOGIA PROPERTIES LTD., AT 208, ASHIRWAD BUILDING, AHMEDABAD STREET, CARNAC BUNDER, MUMBAI. DURING THE COURSE OF SEARCH PROCEEDING, IT WAS FOUND THAT JOGI A PROPERTIES LTD. IS MAINTAINING BOOKS OF ACCOUNT AT 20, BHATIA NIWAS, 233/235, SAMU EL STREET, MASJID BUNDER, MUMBAI. THEREFORE, THIS PREMISES WERE ALSO COVERED U/S 133A OF THE ACT. ON SEARCH AT BHATIA NIWAS, IT WAS REVEALED THAT THE FO LLOWING COMPANIES ARE OPERATING FROM THE SAID PREMISES. S. NO. NAME OF THE PARTY 1 AUSTER PROPERTIES PVT LTD. 2 REVA PROPERTIES PVT. LTD. 3 ARCHIVE REALTY DEVELOPERS PVT LTD. 4 VEDISA PROPERTIES PVT. LTD. IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 3 5 MARTAND PROPERTIES PVT. LTD. 6 KARBURI PROPERTIES PVT. LTD. 7 CIKURA PROPERTIES PVT LTD. 4. THESE ABOVE-REFERRED COMPANIES WERE FOUND TO BE EN GAGE IN INVESTMENT ACTIVITIES IN SHARE OF VARIOUS COMPANIES. THE INVESTMENTS WERE MADE OUT OF SHARE CAPITAL OF THE COMPANY WHICH CONSIST OF SHARE APPLICATION MONE Y RECEIVED FROM THE OTHER VARIOUS CONCERNED. IT WAS ALSO REVEALED THAT DIRECT OR IN ONE COMPANY IS ALSO THE DIRECTOR OF OTHER COMPANY. THE DIRECTORS ARE BROTHE RS AND FROM THE SAME FAMILY. ON THE BASIS OF MATERIAL AND FACT EMERGE DURING THE SEARCH AND SURVEY, THE ASSESSING OFFICER CONCLUDED THAT ALL CONCERNED ARE SISTER CONCERN AND THEIR NATURE AND MODUS OPERANDI THE SAME AS OF THE ASSESSEE. THE WARRANT HAS BEEN ISSUED IN THE NAME OF JOGIA PROPERTIES. HENCE, THE ASSESSEE W AS ALSO COVERED U/S 153A ( ALONG WITH OTHER SEVEN GROUP COMPANIES) ON THE BAS IS OF DOCUMENT FOUND AND SEIZED AND THE DISCLOSURE MADE BY DIRECTORS OF RESP ECTIVE COMPANY. A SEARCH ACTION WAS ALSO CONDUCTED ON ONE MRS. MUKESH CHOKSY , WHO WAS INDULGED IN PROVIDING BOGUS ENTRIES IN BOTH SURVEY/SEARCH PROCE EDINGS. DURING THE INVESTIGATION IT WAS REVEALED THAT JOGIA GROUP HAV E TAKEN BOGUS SHARE APPLICATION MONEY FROM MUKESH CHOKSY GROUP CONCERNED. THE STATE MENT OF SHRI NARAYAN HARI HALAN DIRECTOR , SHRI AJAY KUMAR DIRECTOR OF COMPANY AND SHRI JOSE MATHEW AND WERE ALSO RECORDED ON15.04.2010 WHEREIN SH. NARAYAN HARI HALAN DIRECTOR OFFERED INCOME OF RS. 5.00 CRORE. ON THE B ASIS OF THEIR STATEMENT, THE A.O. RECORDED THE REASONS AND ISSUED NOTICE U/S 153 C DATED 23.07.2010. IN REPLY TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 29.09.2010 DECLARING TOTAL INCOME AT RS. NIL. ON VERIFICATION OF RETURN OF IN COME THE AO NOTICED THAT THE ASSESSEE HAS NOT DISCLOSED THE INCOME OF RS. 5.00 CRORE AS DISCLOSED IN THE STATEMENT RECORDED U/S 131 ON 15.04.2010.THE AO SER VED THE NOTICE U/S 142(1) DATED 05.05.2011 AND ASKED TO GIVE THE DETAILS OF S HARE APPLICATION MONEY AND UTILIZATION THEREON IN RESPECT OF SHARE APPLICATIO N MONEY OF RS. 2.00 CRORE RECEIVED FROM M/S DELTON EXIM PVT LTD. THE ASSESSE E FILED ITS REPLY DATED 01.11.2011 AND CONTENDED THAT ALL SHARE HOLDING OF COMPANY WHO HAVE MADE INVESTMENT IN ASSESSEE-COMPANY ARE INDEPENDENT EXIS TING CORPORATE BODIES, THEY IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 4 ARE MAINTAINING THEIR REGULAR BOOKS OF ACCOUNT, HAV ING THEIR OWN BANK ACCOUNT, FILED SEPARATE RETURN OF INCOME, ALL DETAILS WERE S UPPLIED, THE ASSESSEE FURTHER CONTENDED THAT IDENTITY OF SHARE HOLDER IS ESTABLIS HED, THEREFORE, CONFIRMATION IS FILLED WITH SUPPORTED DOCUMENT. THE ASSESSEE FURTHE R VIDE ITS LETTER DATED 30.11.2011 SUBMITTED ANOTHER REPLY FOR AY 2009-10 A ND 2010-11 WHICH IS REPRODUCED AS UNDER: 1. THE CORRECT STATUS OF OUR COMPANY IS PUBLIC LIMITED COMPANY AND THE NAME OF COMPANY IS MARTAND PROPERTIES LTD. THE REGISTERED OFFICE OF THE SAID COMPANY TILL THE DATE OF SEARCH ACTION ON JOGIA PROPERTIES LTD. WAS 20, BHAT IA NIWAS, 233/235, SAMUEL STREET, MASJID BUNDER, MUMBAI 400003. PLEASE REFER TO ORIGI NAL RETURN OF INCOME FILED FOR A.Y. 2009-10 IN WHICH THE SAID ADDRESS IS DISCLOSED. 2. A SEARCH ACTION WAS UNDERTAKEN ON M/S. JOGIA PROPER TIES LTD. ON 4/3/2010. NO SEARCH ACTION U/S 132 OR SURVEY ACTION U/S 133 A IS UNDERT AKEN AGAINST OUR COMPANY. NO SUMMONS WERE ISSUED TO US BY THE INVESTIGATION WING IN THE SEARCH PROCEEDINGS OF JOGIA PROPERTIES LTD. WE DO NOT HAVE ANY RELATIONSH IP WITH JOGIA PROPERTIES LTD. 3. WE UNDERSTAND THAT SEARCH PROCEEDINGS STARTED ON4/ 3/2010 CONTINUED IN THE CASE OF JOGIA PROPERTIES LTD AND ON15/04/2010 THE PROHIBITO RY ORDER WAS LIFTED WHICH WAS PLACED IN THE BUSINESS PREMISES OF M/S JOGIA PROPER TIES LTD. ON15/04/2010 I WAS ASKED TO BE PRESENT AT THE PREMISES OF JOGIA PROPERTIES L TD SITUATED AT 208 ASHIRWAD BUILDING, AHEMDABAD STREET, MASJID BUNDER, MUMBAI 400009 TO EXPLAIN THE PAPERS BELONGING TO THE COMPANY FOUND FROM THE PREMISE OF JOGIA PROPER TIES LTD. STATEMENT UNDER SECTION 131 WAS RECORDED BY THE INCOME TAX OFFICIAL. AT THE POINT OF TIME I DID NOT HAVE ALL BOOKS OF ACCOUNTS OR RECORD OF OUR COMPANY. I WAS I NFORMED THAT TRANSACTION OF SHARE APPLICATION WITH THE 5 COMPANIES VIZ OCEAN INVESTME NTS AND FINANCE PRIVATE LIMITED, SIDH HOUSING DEVELOPMENT COMPANY LTD, GYANESHWAR TR ADING AND FINANCE PRIVATE LIMITED, GANGA BUILDERS LTD AND DOLDRUM INVESTMENT AND FINANCE PRIVATE LIMITED, WHO ARE THE SHAREHOLDER OF OUR COMPANY ARE NOT GENUINE. REFERENCE WAS MADE TO THE STATEMENT OF ONE MR. JOSE MATTHEW WHEREIN HE HAD S TATED THAT SHARE APPLICATION MONEY IS RECEIVED BY PAYING CASH. I HAVE NOT CONVERGENT W ITH THE PROVISION OF INCOME TAX ACT. I WAS NOT THE DIRECTOR OF THE COMPANY DURING THE FINA NCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2009-10. I DID NOT HAVE ALL BOOKS OF ACCOUNTS OR RECORD. I HAD STATED THAT MR JOSE MATTHEW IS NOT AWARE ABOUT THE BUSINESS ACTIVITY OF OUR COMPANY. THE STATEMENT OF MR JOSE MATTHEW IS NOT TRUE. NO EVIDENCE WAS FOUND THA T SHARE APPLICATION IS RECEIVED FROM 5 COMPANIES BY PAYING CASH S IN LIEU OF CHEQUE RECEIVED. IN THIS BACKGROUND AND BASED ON THE INFORMATION GIVEN TO ME BY THE OFFICER OF INCOME TAX DEPARTMENT I HAD ADMITTED THAT INVESTMENT MADE BY 5 COMPANIES INTO S HARE APPLICATION OF OUR COMPANY IS NOT EXPLAINABLE AND MADE THE DISCLOSURE OF INCOME O F RS. 5 CRORE. I STATE THAT DISCLOSED THAT WAS MADE PURELY ON MISTAKEN BELIEF THAT THE TR ANSACTION OF SHARE INVESTMENTS BY 5 COMPANIES CANNOT BE EXPLAINED AND THE TAXABLE INCOM E OF COMPANY WILL NOT BE TO THE EXTENT OF RS. 5 CRORE PERTAINING TO AY 2009-10. 4. HOWEVER SUBSEQUENTLY I GATHERED THE INFORMATION, TH E PAPERS, THE DOCUMENTS, THE CONFIRMATION, BANK STATEMENT, BALANCE SHEET AND OTH ER RECORDS OF ALL THE 5 COMPANIES. BASED ON THE INFORMATION AND DOCUMENTS I HAD OBSERV ED THAT ALL THE 5 COMPANIES ARE GENUINE AND THEY HAVE INVESTED IN THE SHARE CAPITAL OF THE COMPANY. NO CONFESSIONAL STATEMENT IS GIVEN BY ANY OF 5 SHAREHOLDING COMPANY BEFORE THE INVESTIGATING WING MUMBAI OR ANYWHERE ELSE. THE TRANSACTION OF SHARE I NVESTMENT BY ALL 5 COMPANIES CAN BE EXPLAINED. THEREFORE WHILE FILING THE RETURN OF INCOME FOR A Y 2009-10 IN RESPONSE TO THE NOTICE UNDER SECTION 153C, THE COMPANY DID NOT INCLUDE THE INCOME OF RS. 5 CRORE. THE NONINCLUSION OF INCOME OBTAINED ON 15 APRIL 201 0 MAY BE TREATED AS A RETRACTION OF IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 5 INCOME. PLEASE REFER TO LETTER DATED 18 JULY 2011 S UBMITTED IN YOUR OFFICE ON 22 JULY 2011 WHEREIN ALSO THE FACT OF RETRACTION HAS BEEN M ENTIONED. THE REAL INCOME AS PER THE PROVISION OF INCOME TAX ACT 1961 IS ONLY CHARGEABLE TO TAX. NO EVIDENCE OR DOCUMENTS WAS FOUND TO PROVE THAT THE HEAD PAID CASE OF RECEI VED SHARE APPLICATION. MR JOSE MATTHEW IS NOT DIRECTOR OR EMPLOYEE OF OUR COMPANY. HE IS NO WAY CONNECTED WITH OUR COMPANY. NO RELIANCE CAN BE PLACED ON STATEMENT OF MR JOSE MATTHEW. 5. I FURTHER STATE THAT ALL THE FIVE COMPANIES ARE IND EPENDENT EXISTING CORPORATE BODIES. THEY ARE REGISTERED WITH REGISTRAR OF COMPANIES. TH EY ARE MAINTAINING REGULAR BOOKS OF ACCOUNTS. THEY HAVE THEIR OWN BANK ACCOUNTS. THE Y HAVE FILED THE RETURN OF INCOME. THEY HAVE FILED A CONFIRMATION TO THE EFFECT THAT T HEY HAVE MADE INVESTMENTS IN THE EQUITY SHARES OF THE COMPANY FROM THEIR BANK ACCOUN T. THEY HAVE SUBMITTED THE DETAILS OF THEIR BANK ACCOUNT FROM WHICH THE SAID INVESTMEN TS ARE MADE. THEY ALL ARE ASSESSED TO TAX HAVING PAN. 6. I SUBMIT THAT ONCE THE IDENTITY OF THE SHAREHOLDER IS ESTABLISHED AND THEIR CONFIRMATION IS FILED WHICH IS SUPPORTED WITH VARIOUS PAPERS, DO CUMENTS ETC. THEN THE BURDEN IS DISCHARGED BY THE COMPANY. THE SHAREHOLDERS HAVE AL SO CONFIRMED THE SAID INVESTMENTS WHICH FURTHER SUPPORTS OUR CLAIM THAT THEY HAVE MAD E THE INVESTMENTS IN THE SHARE CAPITAL OF OUR COMPANY. 7. I WOULD FURTHER LIKE TO POINT OUT THAT THERE IS NOT HING ON RECORD TO SUGGEST THAT OUR COMPANY HAS MADE THE CASH PAYMENTS TO ALL THE FIVE SHAREHOLDERS FOR THE PURPOSE OF MAKING INVESTMENTS INTO THE SHARE CAPITAL OF THE CO MPANY. 8. ALL THE FIVE SHAREHOLDING COMPANIES ARE NOT ASSOCIA TES OR GROUP COMPANIES OF OUR COMPANY. WE DO NOT HAVE ANY OTHER RELATIONSHIP WITH THEM EXCEPT THAT THEY ARE SHAREHOLDERS OF OUR COMPANY. WE HAVE NOT ENTERED IN TO ANY OTHER TRANSACTION WITH THEM. NONE OF THE DIRECTORS OF OUR COMPANY IS EITHE R DIRECTOR OR SHAREHOLDER OF ALL THE FIVE SHAREHOLDING COMPANIES. NONE OF DIRECTORS OF F IVE SHAREHOLDING COMPANIES ARE DIRECTORS OR SHAREHOLDERS OF OUR COMPANY. 9. I SUBMIT THAT JUST ON THE BASIS OF THE STATEMENT RE CORDED U/S 131 NO AMOUNT CAN BE BROUGHT TO TAX IN THE ABSENCE OF ANY OTHER EVIDENCE OR MATERIAL. 10. IN RESPONSE TO YOUR QUESTIONNAIRE DATED 5/5/2011, W E HAVE SUBMITTED BEFORE YOU THE NAME AND ADDRESS OF THE SHAREHOLDING COMPANY, THE P AN NO., THE DETAILS OF SHARE APPLICATION MONEY RECEIVED, ISSUE OF SHARES AGAINST SHARE APPLICATION, CHEQUE NO., NAME OF THE BANK, BRANCH AND CONFIRMATION. WE ESTAB LISHED THE IDENTITY AND CREDIT WORTHINESS OF THE COMPANIES WHO HAVE MADE INVESTMEN TS IN THE SHARE CAPITAL OF THE COMPANY. WE HAVE SUBMITTED ALL THE DETAILS CALLED F OR IN YOUR QUESTIONNAIRE. 11. WE HAVE ALSO PROVED BEFORE YOU THAT WE HAVE ISSUED THE SHARES TO ALL THE FIVE SHAREHOLDING COMPANIES. THE DETAILS OF DISTINCTIVE NUMBER OF SHARES, SHARE CERTIFICATE NUMBERS AND NUMBER OF SHARES ISSUED HAVE BEEN SUBMI TTED TO YOU. WE HAD INTIMATED THE REGISTRAR OF COMPANIES OF ISSUE OF SHARES BY FILING THE REQUISITE FORMS. WE HAD FILED THE ANNUAL RETURN IN WHICH YEAR AFTER YEAR THEIR NAMES ARE REFLECTED AS SHAREHOLDERS. ALL THESE EVENTS HAPPENED MUCH PRIOR TO 4/3/2010 WHEN T HE SEARCH ACTION IS TAKEN AGAINST M/S. JOGIA PROPERTIES LTD. 12. WE FURTHER STATE THAT YOUR HAVE IN PARA 7 OF THE P ROCEEDING SHEET DT. 11.11.2011 HAVE REFERRED TO THE SUM OF RS. 1,50,00,000/- RECEIVED B Y US AS SHARE APPLICATION MONEY FROM M/S SIDH HOUSING DELOPMENT CO. LTD. AND RS.1,00,00, 000/- FROM M/S. OSHIN INVESTMENT IN A. Y. 2010-11, AGGREGATING TO RS.2,50,00,000/-. IN THIS REGARD WE HAVE TO STATE THAT WE HAVE ALREADY FILED DETAILS OF SHARE APPLICATION MONEY RECEIVED ISSUE OF SHARES AGAINST SHARE APPLICATION, CHEQUE NO., NAME OF THE BANK, BRANCH AND CONFIRMATION. THESE ARE THE SAME PARTIES FROM WHOM IN A. Y.2009-1 0 ALSO THE AMOUNT IS RECEIVED TOWARDS SHARE APPLICATION. WE HAVE ESTABLISHED BEFO RE YOU THE IDENTITY AND CREDIT WORTHINESS OF BOTH THE PARTIES WHICH WILL ALSO HOLD GOOD FOR A. Y. 2010-11. THE PARTY WHO HAS MADE INVESTMENT IN A. Y. 2009-10 HAS MADE F URTHER INVESTMENT IN A.Y.2010-11. 13. WE FURTHER STATE THAT WE HAVE PRODUCED SUFFICIENT E VIDENCE IN SUPPORT OF THE CLAIM THAT THE SHAREHOLDING COMPANIES HAVE MADE INVESTMENTS IN THE SHARE CAPITAL. NON IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 6 PRODUCTION OF THE DIRECTOR SHOULD NOT BE CONSTRUED THAT THE INVESTMENTS MADE BY THE SHAREHOLDING COMPANY IS NOT GENUINE. 14. WE FURTHER STATE THAT THERE ARE NO INCRIMINATORY D OCUMENTS OR PAPERS WHICH ARE CONTRARY TO THE FACTS SUBMITTED TO YOU. 15. I WOULD LIKE TO STATE THAT WHATEVER IS REQUIRED TO BE PRODUCED IN SUPPORT OF THE SHARE CAPITAL INTRODUCED BY THE FIVE SHAREHOLDING COMPANI ES, WE HAVE SUBMITTED THE SAME BEFORE YOU. ALL THE FIVE SHAREHOLDING COMPANIES ARE IN EXISTENCE, HAVING THEIR SEPARATE INDEPENDENT IDENTITY AND HAVING THEIR SEPARATE SOUR CE OF INCOME. THEY HAVE FILED THE CONFIRMATIONS FOR THEIR SHAREHOLDING IN OUR COMPANY AND ALSO SUPPORTED THE SAME WITH THE DOCUMENTS. IN VIEW OF THIS WE SUBMIT THAT THE S UM OF RS. 7,50,00,000/- SHOULD NOT BE ADDED AS INCOME FOR A. Y. 2009-10 AND 2010-11.' 5. THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY AO H OLDING THAT ONE OF THE DIRECTOR DISCLOSED UNDISCLOSED INCOME OF RS. 5 CRORE DURING THE COURSE OF SUCH AND SEIZURE OPERATIONS, THE STATEMENT WAS RECORDED UNDER SECTIO N 131 (1) AND THUS MADE THE ADDITION OF RS. 5 CRORE ON ACCOUNT OF SHARE CAPITAL . FOR DELTON EXIM PRIVATE LIMITED THE ASSESSING OFFICER CONCLUDED THAT DURING THE POS T-SURVEY OPERATION IT WAS REVEALED THAT SHARE APPLICATION MONEY OF RS. 2 CROR E WAS RECEIVED. THE ASSESSEE DESPITE AMPLE OPPORTUNITY HAS NOT PROVED THE IDENTI TY, CREDITWORTHY OF THE COMPANY AND GENUINITY OF THE TRANSACTION. HENCE THE AMOUNT WAS ADDED IN THE INCOME OF ASSESSEE UNDER SECTION 68 OF THE ACT. ON APPEAL BEFORE THE LD. CIT(A), THE ADDITION WAS DELETED. AGGRIEVED BY THE ORDER OF LD. CIT(A), THIS APPEAL IS FILED BEFORE US. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF ASSESSEE SUBMITT ED THAT ASSESSEE HAS FILED C.O. IN SUPPORT OF HIS LEGAL CONTENTION RAISED BEFORE TH E LD. CIT(A). IT WAS FURTHER ARGUED THAT SIMILAR ADDITIONS WERE MADE IN CASES OF GROUP CONCERNED WHICH WAS COVERED BY THE SEARCH AND SEIZURE ACTION U/S 132 CONDUCTED ON 04.03.2010. WE HAVE NOTICED THAT THE C.O. OF THE ASSESSEE IS BARRED BY 390 DAYS OF LIMITATION PERIOD. THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING WAS AS KED TO EXPLAIN THE CAUSE OF DELAY. THE LD. AR OF THE ASSESSEE ARGUED THAT ASSESSEE HAS RAISED LEGAL GROUND OF OBJECTION IN ITS C.O. WHICH GOES TO THE ROOT OF THE CASE. THE LD. AR OF ASSESSEE FURTHER INVITED OUR ATTENTION TO THE ORDER OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN GROUP CASES IN ITA NO. 6104, 6105/MUM/12 AND C.O. NO. 259 & 260/MU M/2012, WHEREIN THE SIMILAR DELAY IN FILING THE CROSS OBJECTION ON IDEN TICAL GROUNDS WAS CONDONED BY IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 7 THE TRIBUNAL. ON THE OTHER HAND, LD. DR FOR THE REV ENUE NOT DISPUTED THE CONTENTION OF LD. AR OF ASSESSEE AND SUBMITTED THAT THE DELAY WAS CONDONED BY THE CO-ORDINATE BENCH. 7. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF CO-ORDINATE BENCH IN ASSESSEES GROUP CASE WHEREIN THE TRIBUNAL IN PARA 35 OF ITS ORDER CONDONED THE DELAY IN FILING THE CROSS OBJEC TIONS HOLDING THAT ASSESSEE HAS RAISED PURELY A LEGAL ISSUE, WHICH GOES TO THE ROO T OF THE ISSUE AND WAS ALLOWED. WE RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH ON IDENTICAL GROUNDS IN ASSESSEES GROUP CASE IS INCLINED TO CONDONE THE DE LAY IN FILING THE CROSS OBJECTION. 8. IN SUPPORT OF C.O. THE LD. AR OF THE ASSESSEE ARGUE D THAT THE GROUND OF CROSS OBJECTION RAISED BY ASSESSEE IS COVERED BY THE DECI SION OF TRIBUNAL IN ASSESSEES GROUP CASE IN ITA NO. 6104 & 6105/M/2012 WITH CROSS OBJECTION THEREIN VIDE C.O. NO. 259 & 260/M/2012 ACIT V/S ARCHIEVE REALITI ES DEVELOPERS LTD., ITA NO. 6097 & 6098/M/2012 & CROSS OBJECTION NO. 264 & 265/M/2012 M/S CARBURI PROPERTIES DEVELOPERS LTD. V/S ACIT, ITA NO. 6099 & 6100/M/2012 WITH CROSS OBJECTION THEREIN VIDE C.O. 269 & 270/M/2012 M/S VE DISA PROPORTIES V/S ACIT, ITA NO.6109 & 6110/M/2012 WITH CROSS OBJECTION THER EIN VIDE C.O. 261 & 262/M/2012 M/S AUSTER PROPERTIES V/S ACIT, ITA NO. 6108, 6112 & 6113/M/2012 WITH CROSS OBJECTION THEREIN VIDE C.O. 266, 267 & 2 68/M/2012 M/S REVA PROPERTIES V/S ACIT, ITA NO.6096/M/2012 WITH CROSS OBJECTION THEREIN VIDE C.O. 263/M/2012 M/S CIKURA PROPERTIES V/S ACIT. THE AS SESSEE IN THE SAID CASE WAS ALSO COVERED BY THE SEARCH AND SEIZURE OPERATION. I T WAS ARGUED THAT ON ALLOWING THE CROSS OBJECTIONS OF ASSESSEES IN THE ORDER OF DELE TION OF SIMILAR ADDITION BY COMMISSIONER (APPEALS) WAS SUSTAINED BY TRIBUNAL. IT WAS FURTHER ARGUED THAT THE AO HAS NOT RECORDED ANY SATISFACTION AS REQUIRED UN DER LAW. ON THE OTHER HAND, LD. DR FOR THE REVENUE NOT DISPUTED THAT ON SIMILAR GRO UNDS IN CROSS OBJECTION WAS ALLOWED. THE LD. DR FOR THE REVENUE FURTHER SUBMITT ED THAT EACH AND EVERY CASE HAS TO BE SEEN ON ITS OWN MERIT. IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 8 9. WE HAVE CONSIDERED THE CONTENTION OF BOTH THE PARTI ES AND SEEN THAT THE CO-ORDINATE BENCH WHILE DISCUSSING WITH THE SIMILAR ISSUE IN A SSESSEES GROUP CASE WHICH WAS COVERED BY SEARCH & SEIZURE ACTION, PASSED THE FOLL OWING ORDER: THE ASSESSEE HAS CHALLENGED THE LEGALITY OF THE ASS ESSMENT FRAMED U/S.153C ON THE PLEA THAT NO SATISFACTION WAS RECORDED BY AO OF THE SEARCHED PERSON SO AS TO EMPOWER THE CONCERNED AO OF THESE CONCERNS TO MAKE ADDITION U/S.153C. LEA RNED AR PLACED ON RECORD REPORT ON INSPECTION TAKEN OF THE RECORDS DATED 28/08/2015 WH ICH READS AS UNDER:- JOGIA PROPERTIES LTD. A.Y. 2008-09 ALLD 2009-10 ITA NO.6106/M/2012 AND 6107/M/2012 HEARING FIXED ON 8TH SEPTEMBER, 2015 REPORT ON THE INSPECTION TAKEN OF THE RECORDS THE APPELLANT HAD MADE AN APPLICATION VIDE LETTER D ATED 05/08/2015 TO THE ASSESSING OFFICER REQUESTING FOR INSPECTION OF THE ASSESSMENT RECORDS. THE SAID ASSESSMENT RECORDS WERE WITH THE HON'BLE C OMMR. OF INCOME TAX, DR, SMT. NEENA PANDEY, F-BENCH, MUMBAI ITAT. THE INSPECTOR MS. AMBIKA SHASHIDHARAN, ATTACHED TO F-BENCH, MUMBAI ITAT, GAVE THE INSPECTION OF THE RECORDS ON 20/08/2015 AT 3 PM. SHRI DILIP V. LAKHANI, CHARTERED ACCOUNTANT, THE AUTHORISED REPRE SENTATIVE AND SHRI VIRESH SOHONI, THE REPRESENTATIVE OF THE APPELLANT, TOOK T HE INSPECTION OF THE ASSESSMENT RECORDS AND THE FINDINGS OF THE SAID INS PECTION ARE AS UNDER. 1. THERE IS NO PROOF OR EVIDENCE ON RECORD TO THE E FFECT THAT THE ASSESSING OFFICER GAVE THE COPIES OF THE STATEMENT RECORDED O F MR. MUKESH CHOKSHI ON 25/11/2009 AND 11/12/2009. 2. NO PROCEEDING SHEET / ORDER SHEET WAS AVAILABLE FOR INSPECTION, 3. NO RECORDING OF ANY SATISFACTION FOR INITIATING PROCEEDINGS U/S 153C AGAINST 7 COMPANIES. PLACE: MUMBAI DILIP V. LAKHANI VIRESH SOHONI DATED: 20/08/2015 AUTHORISED REPRESENTATIVE REPRESENTATIVE OF APPELLANT 36. IT IS CLEAR FROM THE ABOVE INSPECTION REPORT TH AT NO SATISFACTION HAS BEEN RECORDED BY THE AO OF THE SEARCHED PERSON I.E., M/S. JOGIA PROPERTI ES LTD., FOR INITIATING PROCEEDINGS U/S.153C AGAINST THESE SEVEN COMPANIES. 37. FROM THE RECORD WE FOUND THAT IN THE FILE OF TH E COMPANY WHICH WAS SEARCHED VIZ. JOGIA PROPERTIES LTD., THE LD. ASSESSING OFFICER HAS NOT RECORDED ANY SATISFACTION TO COMPLY WITH THE PROVISIONS OF SECTION 153C . A SEARCH & SEIZURE ACTION WAS TAKEN AGAINST M/S. JOGIA PROPERTIES LTD AND PAGES 1 TO 126 WHICH ARE A PART OF ANNEXURE- A 1 WERE SEIZED IN THE HANDS OF JOGIA PROPERTIES LTD., THE SEARCH TOOK PLA CE ON 4TH AND 5TH MARCH 2010. THE LD. ASSESSING OFFICER OF JOGIA PROPERTIES LTD. DID NOT RECORD ANY SATISFACTION AS PER THE PROVISIONS OF SECTION 153C . THE ASSESSEE HAS PRODUCED THE COPY OF THE INSPECT ION REPORT WHICH WAS OBTAINED IN THE PROCEEDINGS OF JOGIA PROP ERTIES LTD. IN THE INSPECTION REPORT IT IS CLEARLY STATED THAT THE LD. ASSISSING OFFICER OF JO GIA PROPERTIES LTD HAS NOT RECORDED ANY SATISFACTION. THE LD. CIT (DR) ALSO HAS NOT PRODUCE D ANY EVIDENCE DURING THE COURSE OF IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 9 HEARING TO PROVE THAT THE LD. ASSESSING OFFICER OF JOGIA PROPERTIES LTD HAS RECORDED THE SATISFACTION. 38. HON BLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N C HANDRANI 333 ITR 436 HELD AS UNDER:- SECTIONS 153A , 1538 AND 153C OF THE INCOME-TAX ACT, 1961, LAY DOWN A SCHEME FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. SECTION 153C WHICH IS SIMILARLY WORDED TO SECTION 158BD OF THE ACT, PROVIDES THAT WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DO CUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER T HAN THE PERSON REFERRED TO IN SECTION 153A HE SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AN D ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME O F SUCH OTHER PERSON. HOWEVER, THERE IS A DISTINCTION BETWEEN THE TWO PRO VISIONS INASMUCH AS UNDER SECTION 153C NOTICE CAN BE' ISSUED ONLY WHERE THE MONEY, BULLIO N, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO SUCH OTHER PERSON , WHEREAS UNDER SECTION 158BD IF THE ASSESSING OFFICER WAS SATISFIED THAT ANY UN DISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH R ESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR AS SETS WERE REQUISITIONED UNDER SECTION 132A , HE COULD PROCEED AGAINST SUCH OTHER PERSON UNDER SECTION 158BC . THUS A CONDITION PRECEDENT FOR ISSUING NOTICE UNDER SECTION 153C AND ASSESSING OR REASSESSING INCOME OF SUCH OTHER PERSON, IS THAT THE MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED SHOULD BELONG TO SUCH PERSON. IF THE REQUIREMENT IS NOT SATISFIED, RECOURSE CANNOT B E HAD TO THE PROVISIONS OF SECTION 153C . HELD, ALLOWING THE PETITION, THAT ADMITTEDLY, THE T HREE LOOSE PAPERS RECOVERED DURING THE SEARCH PROCEEDINGS DID NOT BELONG TO THE PETITIONER. IT WAS NOT THE CASE OF THE REVENUE THAT THE THREE DOCUMENTS WERE I N THE HANDWRITING OF THE PETITIONER. IN THE CIRCUMSTANCES, WHEN THE CONDITIO N PRECEDENT FOR ISSUANCE OF NOTICE WAS NOT FULFILLED ACTION TAKEN UNDER SECTION 153C OF THE ACT STOOD VITIATED. 39. LEARNED AR ALSO INVITED OUR ATTENTION TO PAGE 3 OF THE PAPER BOOK FILED IN CROSS OBJECTION PROCEEDINGS. PAGE 3 IS THE COPY OF THE SA TISFACTION RECORDED U/S 153C IN THE HANDS OF KARBURI PROPERTIES LTD. THE REFERENCE TO YEARS A RE 2004-05 TO 2009-10. THE LD. ASSESSING OFFICER HAS RELIED UPON PAGE 1 OF ANNEXUR E - A 1 OF THE SEIZED PANCHNAMA DATED 04.03.2010. THE SAID PAGE 1 IS ON PAGE 4 OF THE PAP ER BOOK. THE SAID PAGE CONTAINS THE DETAILS OF 24 ENTITIES GIVING THE NAME, ACCOUNT NUM BER AND THE PERSONS WHO ARE AUTHORISED SIGNATORY. THIS PAPER DOES NOT BELONG TO KARBURI PR OPERTIES. DURING THE COURSE OF INVESTIGATION, THE ASSESSEE HAD FILED DETAILED EXPL ANATION ON THE CONTENTS OF PAGES 1 TO 126 AND COPY OF THE SUBMISSIONS MADE BEFORE THE LD. ASS ESSING OFFICER. THE SAID EXPLANATION WAS ACCEPTED AND THERE IS NOT A WHISPER ABOUT THE C ONTENTS OF ANY OF THE PAGES FROM 1 TO 126 IN THE ASSESSMENT ORDER. 40. FOR UNDERSTANDING OF LEGAL REQUIREMENT OF INITI ATING PROCEEDING U/S.153C, WE HERE BELOW REPRODUCE PROVISION OF SECTION 153C . ASSESSMENT OF INCOME OF ANY OTHER PERSON. SECTION 153C READS AS UNDER. IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 10 ASSESSMENT OF INCOME OF ANY OTHER PERSON. 153C. NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , WHERE THE LD. ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISIT IONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A , THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIO NED SHALL BE HANDED OVER TO THE LD. ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT LD. ASSESSING OFFICER SHALL PROCEED AGAINST EACH SU CH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INC OME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A . PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REF ERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB- SECTION (1) OF 153A SHA LL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DO CUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE LD. ASSESSING OFFICER HAVING O THER PERSON. PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, SPECIFY THE CLAS S OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE LD. ASSESSING OF FICER SHALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE EXCEPT IN CASES WH ERE ANY ASSESSRNENT HAS ABATED.' IN ORDER TO ISSUE A VALID NOTICE U/S 153C, THE LD. ASSESSING OFFICER OF A PERSON AGAINST WHOM SEARCH ACTION IS TAKEN, RECORDS A SATI SFACTION THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG, OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED, BELONG TO A PERSON, OTHER THAN A PERSON REFERRED TO IN SECTION 153A , THEN THE SUCH BOOKS OF ACCOUNT OR DOCUMENTS OR AS SETS SEIZED SHALL BE HANDED OVER TO THE LD. ASSESSING OFFICER HAVING JUR ISDICTION OVER SUCH OTHER PERSON. THE RECORDING OF THE SATISFACTION IS A MUST AND EVEN IF THE LD. ASSESSING OFFICER FOR THE PERSON SEARCHED AND THE 'OTHER PERS ON' IS THE SAME, STILL THE SATISFACTION HAS TO BE RECORDED BY THE LD. ASSESSIN G OFFICER OF THE SEARCH PERSON REFERRED TO IN SECTION 153A . 41. OF THE PROPOSITION THAT FOR INITIATING PROCEEDI NGS U/S.153C, SATISFACTION SHOULD BE RECORDED IN THE FILE OF SEARCHED PERSON, RELIANCE CAN BE PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS. A. VIJAYBHAI N. CHANDRANI VS. ASST. COMMR. OF INCOM E TAX REPORTED IN 333 ITR 436 (GUJ. HC) B. PEPSICO INDIA HOLDINGS (P.) LTD. VS. ASST. COMMR . OF INCOME TAX ITA NO.6104/12 & 11 OTHER APPEALS CO NO.259/12 & 11 OTH ER CROSS OBJECTIONS REPORTED IN 228 TAXMANN 116 (DELHI HC) C. BEEJAY SECURITIES & FINANCE LTD. ITA NOS. 4859 T O 4865/MUM/2009 (AY. 2001-02 TO AY. 2007-08) DATE OF PRONOUNCEMENT 24/06 /2011 D. M/S. JINDAL STAINLESS LTD. ITA NOS. 3480 & 3481 (DEL) 2006 (AY.2003-04 & 2004-05) REPORTED IN 21 ITAT INDIA 812 (DELHI) IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 11 E. LMJ INTERNATIONAL LTD. ITA NO. 2173/KOLL2006 (AY . 1999-2000) REPORTED IN 119 TTJ (KOL) 214. F. RIGHT DEVELOPMENT & ESTATE PVT. LTD. ITA NOS. 46 16 TO 4619/MUM/2009 (AY. 2004-05 TO AY. 2007-08) DATE OF PRONOUNCEMENT 23/09/2011. G. ASST. COMMR. OF INCOME TAX VS. INLAY MARKETING P VT. LTD. (ITAT DELHI) H TANVIR COLLECTIONS PVT. LTD. VS. ASST. COMMR. OF INCOME TAX (ITAT DELHI) I V. K. FISCAL SERVICES PVT. LTD. VS. DY. COMMR. OF INCOME TAX (ITAT DELHI) J. DY. COMMR. OF INCOME TAX, CENTRAL CIRCLE-5 NEW D ELHI VS. QUALTRON COMMODITIES PVT. LTD. 54 TAXMANN.COM 295 (DELHI TRI BUNAL) K DY. COMMR. OF INCOME TAX VS. AAKASH AROGYA MINDIR P. LTD 58 TAXMANN.COM 293 (DELHI TRIBUNAL) L. CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY , 378 ITR PG.84 (BOMBAY HIGH COURT) M. CIT VS. MECHMEN (2015) 280 CTR 198 (MADHYA PRADESH HIGH COURT) N. CIT VS. IBC KNOWLEDGE PARK PVT LTD , (2016) TAXMANN.COM, 108 (KARNATAKA HIGH COURT) O. CIT VS. SHETTYS PHARMACEUTICALS & BIOLOGICALS LTD ., (2015) 230 TAXMAN 268 (ANDHRA PRADESH HIGH COURT) 42. APPLYING PROPOSITION OF LAW LAID DOWN IN ABOVE JUDICIAL PRONOUNCEMENTS, NOTICE ISSUED U/S 153C IS BAD IN LAW AND CONSEQUENTLY THE ORDER P ASSED BY THE LD. ASSESSING OFFICER U/S 153C NEEDS TO BE CANCELLED. 10. CONSIDERING THE DECISION OF CO-ORDINATE BENCH WHERE IN IT WAS HELD THAT NO SATISFACTION WAS RECORDED. HENCE, NOTICE U/S 153A I S BAD-IN-LAW AND CONSEQUENTIAL ORDER PASSED BY AO IS NOT SUSTAINABLE. 11. IN THE RESULT, C.O. FILED BY ASSESSEE IS ALLOWED. 12. AS WE HAVE ALLOWED THE C.O OF THE ASSESSEE BY FOLLO WING THE DECISION OF CO- ORDINATE BENCH, THUS, THE DISCUSSION ON THE GROUNDS OF APPEAL RAISED BY REVENUE BECOME ACADEMIC. IN THE RESULT, APPEAL OF THE REVEN UE IS DISMISSED AS INFRUCTUOUS. ITA NO. 6103/MUM/2012 FOR AY 2010-11 13. THE REVENUE HAS RAISED ONLY ONE GROUND OF APPEAL, W HICH IS IDENTICAL TO THE GROUNDS OF APPEAL IN ITA NO. 6104 & 6105/M/2012 ACI T V/S ARCHIEVE REALITIES DEVELOPERS LTD., ITA NO. 6097 & 6098/M/2012 M/S CAR BURI PROPERTIES IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 12 DEVELOPERS LTD. V/S ACIT, ITA NO. 6099 & 6100/M/201 2 M/S VEDISA PROPORTIES V/S ACIT, ITA NO.6109 & 6110/M/2012 M/S AUSTER PROP ERTIES V/S ACIT, ITA NO. 6108, 6112 & 6113/M/2012 M/S REVA PROPERTIES V/ S ACIT, ITA NO.6096/M/2012 M/S CIKURA PROPERTIES V/S ACIT.. THE LD. AR OF THE ASSESSEE ARGUED THAT THE GROUNDS OF APPEAL RAISED BY REVENUE ARE ALSO COVERED BY THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES GROUP C ASE IN THE ABOVE REFERRED DECISIONS. THE LD. DR FOR THE REVENUE SUBMITTED THA T HE HAS NOTHING TO ADD IN HIS SUBMISSION EXCEPT TO RELY ON THE ORDER OF ASSESSING OFFICER. 14. CONSIDERING THE FACTS THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS ALREADY DISMISSED THE APPEAL OF THE REVENUE IN ASSESSEES G ROUP CASE WHICH WAS COVERED IN SEARCH & SEIZURE ACTION U/S 132 CONDUCTED ON 04. 03.2010, THE REVENUE HAS RAISED IDENTICAL GROUNDS EXCEPT THE DIFFERENCE IN T HE FIGURE OF ADDITIONS IN THE PRESENT APPEAL. THUS, RESPECTFULLY FOLLOWING THE DE CISION OF CO-ORDINATE BENCH WHEREIN IT WAS HELD THAT NO SATISFACTION WAS RECORD ED BY ASSESSING OFFICER BEFORE INITIATING ACTION U/S 153C OF THE ACT. HENCE, THE A SSESSMENT ORDER PASSED WITHOUT RECORDING SATISFACTION U/S 153C OF THE ACT IS BAD-I N-LAW. IN THE RESULT THE APPEAL OF THE REVENUE FOR AY 2010-11 IS DISMISSED. 15. IN THE RESULT APPEAL FILED BY REVENUE VIDE ITA NO. 6101 & 6103/M/2012 IN ACIT V/S M/S MARTAND PROPERTIES LTD. FOR AY 2009-10 & 20 10-11 ARE DISMISSED AND THE CROSS OBJECTION NO.255/M/2014 FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF MAY 2017. SD/- SD/- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 26/05/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. IT A NO.6101, 6103/M/2012 & C.O. 255/M/14 - M/S MARTAN D PROPERTIES LTD. 13 BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI //TRUE COPY/