ACIT, New Delhi V. M/s. Realtech Construction Pvt. Ltd., New Delhi

ITA 6569/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6846 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 23-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Documents seized
• Section: 153A; 274; 158BC; 13; 153; 158BD; 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT & SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.6569/DEL/2016 ASSESSMENT YEAR 2011-12 ACIT, CENTRAL CIRCLE-14, NEW DELHI. V. M/S. REALTECH CONSTRUCTION PVT. LTD., D-22, DEFENCE COLONY, NEW DELHI. TAN/PAN: AADCR 1099N (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. SULEKHA VERMA, CIT-DR RESPONDENT BY: S/SHRI SALIL AGARWAL, ADV. & SHAILESH GUPTA, ADV. DATE OF HEARING: 17 10 2019 DATE OF PRONOUNCEMENT: 14 01 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 22.09.2016, PASSED BY LD. CIT (APPEALS)-XXIX, NEW DELHI FOR THE QUANTUM OF ASSESS MENT PASSED U/S.153C/143(3) FOR THE ASSESSMENT YEAR 2011 -12. IN THE GROUNDS OF APPEAL, THE REVENUE HAS CHALLENGED T HE DELETION OF ADDITION OF RS.13,90,26,749/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT, A SEARCH A ND SEIZURE ACTION WAS INITIATED IN KALRA GROUP OF CASES ON 28. 07.2011. THE MAIN COMPANY OF THIS GROUP WAS CONSORTIUM SECUR ITIES PVT. LTD. WHICH WAS A STOCK BROKERING COMPANY. THIS GROUP I.T.A. NO.6569/DEL/2016 2 WAS ALSO ENGAGED IN DEALING WITH REAL ESTATE BUSINE SS. AS PER THE ASSESSING OFFICER, DURING THE SEARCH OPERATION IN M/S. CONSORTIUM GROUP OF CASES, CERTAIN DOCUMENTS WERE R ETRIEVED WHICH RELATES TO ASSESSEE, M/S. REALTECH CONSTRUCTI ONS PVT. LTD. THE DOCUMENTS WERE IN THE NATURE OF MOUS BETWE EN PROMOTERS OF REALTECH GROUP, NAMELY, SHRI YOGESH GU PTA, SHRI PANKAJ DAYAL AND SHRI RAJEEV BEHL ALONG WITH SO ME WORKING PERTAINING TO REALTECH GROUP. THE SEIZED AN NEXURE ALSO GIVES DETAILS OF WORKING OF ASSETS AND LIABILI TIES OF DIFFERENT PROJECTS OF REALTECH GROUP. IT HAS BEEN F URTHER OBSERVED BY THE ASSESSING OFFICER THAT DURING THE C OURSE OF POST SEARCH PROCEEDINGS, THE SEIZED DOCUMENTS WERE CONFRONTED TO SHRI PARAMINDER SINGH KALRA, WHO HAS STATED THAT THESE DOCUMENTS DOES NOT PERTAIN TO HIM AND HE FURTHER EXPLAINED THAT DUE TO DISPUTE BETWEEN THE PROMOTERS OF REALTECH GROUP, MOU WAS DRAWN BY THE PARTNERS FOR P ARTITION OF THE GROUP AND EACH PARTNER HAS APPOINTED ONE ARB ITRATOR WHICH SHOULD BE ACCEPTABLE TO THE REMAINING TWO PRO MOTERS OF THE GROUP AND THERE WAS ONE SUCH ARBITRATOR SHRI PA RAMINDER SINGH KALRA APPOINTED BY THE REALTECH GROUP PROMOTE RS. BESIDES HIM, TWO OTHER, SHRI B.N. CHANOK AND SHRI K ULDEEP AHUJA WERE ALSO APPOINTED AS ARBITRATOR. DURING THE COURSE OF SEARCH PROCEEDINGS SUMMONS WERE ISSUED TO THREE PRO MOTER DIRECTORS OF M/S. REALTECH GROUP, OUT OF WHICH ONLY MR. YOGESH GUPTA APPEARED BEFORE THE INVESTIGATION WING . IT WAS OBSERVED BY THE INVESTIGATION WING THAT BOOKS OF AC COUNT WERE NOT PRODUCED TO CORROBORATE THE VARIOUS ENTRIES. AC CORDINGLY, I.T.A. NO.6569/DEL/2016 3 PROCEEDINGS U/S.153C WAS INITIATED IN THE CASE OF T HE ASSESSEE COMPANY AND NOTICE WAS ISSUED ON 12.08.201 3. IN RESPONSE TO WHICH ASSESSEE HAS FILED ITS RETURN OF INCOME ON 24.09.2016 DECLARING INCOME OF RS.30,87,530/-. THER EAFTER, SURVEY OPERATION WAS CARRIED OUT IN THE CASE OF SHR I YOGESH GUPTA BY THE INVESTIGATION WING ON 15.03.2012 WHERE IN VARIOUS INCRIMINATING DOCUMENTS PERTAINING TO M/S. REALTECH GROUP FOR THE ASSESSMENT YEAR 2011-12 WAS SEIZED FR OM THE PREMISE D-22, DEFENCE COLONY, NEW DELHI. THE SAID IMPOUNDED DOCUMENT CONTAINS DETAILS OF PAYMENT RECE IVED BY M/S. METER & INSTRUMENTS PVT. LTD. FROM M/S. REALTE CH CONSTRUCTIONS PVT. LTD. AS ON 31.03.2010. AS PER TH E DETAILS, SHRI YOGESH GUPTA HAD PAID CASH AMOUNT OF RS.3,25,00,000/- IN RESPECT OF SALE AT DELHI SHOP A ND MR. AJEET HAS PAID CASH AMOUNT OF RS.10,65,26,749/- ON BEHALF OF THE ASSESSEE. THE SCANNED COPY OF CASH TRANSACTION AS PER THE IMPOUNDED MATERIAL HAS BEEN INCORPORATED IN THE ASS ESSMENT ORDER. ASSESSING OFFICER FURTHER NOTICED THAT IN TH E STATEMENT OF SHRI YOGESH GUPTA RECORDED ON 03.08.2012, HE HAS ACCEPTED THAT THE SEIZED PAGE BELONGS TO THE ASSESS EE IN WHICH HE WAS ACTING AS ONE OF THE DIRECTORS AND THE TRANSACTION MENTIONED IN THE PAGE ARE REAL AND ACTU AL TRANSACTION. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE SUBMITTED THAT, THESE DOCUMENTS DOES NOT B ELONG TO THE ASSESSEE-COMPANY AND IT CONTAINS SOME ROUGH WOR KING WHICH MAY HAVE BEEN KEPT BY THE DIRECTOR OF THE COM PANY. IT WAS FURTHER SUBMITTED THAT THERE WAS A DISPUTE BETW EEN THE I.T.A. NO.6569/DEL/2016 4 DIRECTORS OF THE COMPANY AND THE SAID DIRECTOR OF T HE COMPANY MAY HAVE KEPT HIS PERSONAL NOTING. HOWEVER, LD. AO HELD THAT IN VIEW OF THE PROVISION OF SECTION 292C (1), THE PRESUMPTION IS AGAINST THE ASSESSEE. ACCORDINGLY, H E MADE THE ADDITION OF RS.13,90,26,749/-. 3. LD. CIT (A) AFTER CONSIDERING THE ASSESSEES SUB MISSION AS INCORPORATED FROM PAGES 8 TO 38 OF THE APPELLATE ORDER AS WELL AS OTHER MATERIAL FACTS PLACED ON RECORD DELET ED THE ADDITION. IN SUMS AND SUBSTANCE, HIS FINDINGS ARE:- THE ADDITION HAS BEEN MADE RELATES TO M/S. METER AN D INSTRUMENT PVT. LTD. AND NOT OF THE ASSESSEE WHICH WAS FOUND FROM THE POSSESSION OF MR. YOGESH GUPTAS SUR VEY. FURTHER, STATEMENT OF MR. YOGESH GUPTA CANNOT BE HE LD TO BE RELIABLE AS THERE WERE DISPUTE AMONGST THE PROMOTERS OF THE ASSESSEE-COMPANY AND HIM AND HE DOES NOT HAVE STAKE IN THE COMPANY NOR ANY INTEREST AT THE TIME OF SURVEY, THEREFORE, HIS STATEMENT ALONE HAS NOT BINDING ON THE ASSESSEE COMPANY AS AN EVIDENCE. SECONDLY, THE ADDITION HAS BEEN MADE ON STANDALONE GENERATED COMPUTER PRINTOUT WHICH HAS NEITHER BEEN SIGNED BY THE ASSESSEE AND HAS BEEN FOUND FROM THE PREMISES OF SHRI YOGESH GUPTA, WHOSE IDENTITY IS DIFFERENT FROM THE IDENTITY OF THE ASSESSEE COMPANY . NO CORROBORATIVE EVIDENCE HAS BEEN FOUND TO SUBSTANTIA TE THAT ASSESSEE HAS GENERATED SUCH UNEXPLAINED CASH A ND I.T.A. NO.6569/DEL/2016 5 IT IS BASED ON THE DOCUMENT RETURNED TO A THIRD PAR TY, I.E., METER AND INSTRUMENT PVT. LTD. FURTHER, THE DOCUMENT MENTIONS PAYMENT TO BE RECEIV ED FROM M/S. REALTECH CONSTRUCTIONS PVT. LTD. WHICH INDICATES THAT HIS DOCUMENTS BELONGS TO M/S. METER AND INSTRUMENT PVT. LTD. WHICH HAS BEEN DISCOVERED FROM MR. YOGESH GUPTA WHO WAS NOT CONTROLLING THE ASSESSEE- COMPANY AT THAT POINT OF TIME. NOWHERE THE DOCUMENT INDICATES THAT THESE PAYMENTS HAVE BEEN MADE ON BEH ALF OF THE ASSESSEE COMPANY AND THE CONTENTS OF THE DOCUMENTS DID NOT SUPPORT THE ADDITION MADE; AND IN ANY CASE ASSESSEE IS NOT THE BENEFICIARY OF SUCH CA SH RECEIPT. ONE IMPORTANT AND FINDING GIVEN BY THE LD. CIT(A) I S THAT, HERE IN THIS CASE PROCEEDINGS HAVE BEEN INITI ATED U/S.153C BY ISSUANCE OF NOTICE DATED 12.08.2013 PURSUANT TO THE DETAILS FOUND IN KALRA GROUP OF CAS ES HELD ON 28.07.2011, BUT SATISFACTION HAS BEEN RECOR DED BY THE ASSESSING OFFICER OF THE ASSESSEE ON 08.08.2 013; AND FROM THE BARE PERUSAL OF THE SAID SATISFACTION, IT REVEALS THAT MAIN REASON FOR THE SATISFACTION IS SO ME MOU FOUND DURING THE COURSE OF SEARCH IN KALRA GROU P AND ITS KEY PERSON HAS STATED THAT THE PROMOTERS WA NTED TO RESOLVE THE DIFFERENCE BETWEEN AMONGST THEM AND THE REALTECH GROUP. HE FURTHER OBSERVED THAT ASSESSING OFFICER OF THE KALRA GROUP HAS NOT RECORDED THE SATISFACTION AND THE DOCUMENT SEIZED DOES NOT INDIC ATE I.T.A. NO.6569/DEL/2016 6 ANY SUPPRESSION OF INCOME BY THE ASSESSEE AND EMANATING FROM THE SEARCH. LD. CIT(A) HELD THAT HERE THE ADDITION OF RS.13,90,26,749/- HAS BEEN MADE ON THE BASIS OF SUR VEY CONDUCTED AT THE PREMISES OF MR. YOGESH GUPTA, WHER EIN A DOCUMENT WAS FOUND FROM HIS PREMISES WHEREIN THE NAME OF THE ASSESSEE COMPANY HAD ALSO APPEARED, WHEREIN M/S. METER AND INSTRUMENT PVT. LTD. HAS BEE N SHOWN TO RECEIVE RS. 3,25,00,000/- FROM MR. YOGESH GUPTA FOR SALES AT DELHI SHOP AND RS.10,65,26,749/- SHOWN TO HAVE RECEIVED FROM MR. AJEET FOR SALE AT CHANDIGARH SHOP IN CASH. BASED ON THESE FACTS, HE H AS HELD THAT HIS ADDITION HAS BEEN MADE ON THE BASIS OF DOCUMENT FOUND DURING THE SURVEY AND HENCE TECHNICALLY NOT THE ISSUE WITH REFERENCE TO THE PROCEEDINGS U/S.153C OF THE ACT. HE ALSO RELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES, 2015 66 TAXMAN.COM 69. ANOTHER FACT NOTED BY LD. CIT(A) IS THAT, FROM THE STATEMENT OF MR. YOGESH GUPTA IT IS EVIDENT THAT HE HAS ACCEPTED THE TRANSACTION TO BE REAL AND ACTUAL BUT SAME HAS NOT REACHED TO FINALITY AS IT WAS SUBJECT TO FI NAL SETTLEMENT AND THESE NOTING REGARDING CASH RECEIPT HAS ALREADY BEEN SURRENDERED AS INCOME DURING SURVEY. T HE RELEVANT OBSERVATION IN THIS REGARD READS AS UNDER: I.T.A. NO.6569/DEL/2016 7 10.7 IT IS EVIDENT FROM THE ABOVE STATEMENT TH AT THOUGH MR. YOGESH GUPTA ACCEPTED THE TRANSACTIONS TO BE REAL A ND ACTUAL BUT THE SAME HAS NOT REACHED TO THE FINALITY, SUBJE CT TO FINAL SETTLEMENT AND THESE NOTINGS REGARDING CASH RECEIPT IS ALREADY SURRENDERED AS INCOME DURING SURVEY. IT IS PERTINEN T TO MENTION THAT DURING THE COURSE OF SURVEY, RS.24,50, 00,000/- HAVE BEEN OFFERED AS ADDITIONAL INCOME FOR TAXATION FOR THE PERIOD RELEVANT TO AY 2008-09 AND THAT HAS ALSO GOT A BEARING TO THE PROJECT-CITY EMPORIYO AT CHANDIGARH. FROM TH E ASSESSMENT ORDER IN THE CASE OF APPELLANT FOR AY 20 08-09 IT IS ALSO FOUND MENTIONED AND A FURTHER ADDITION OF RS.20,00,00,000/- IS MADE BEING UNDISCLOSED INCOME FROM CASH RECEIPTS OVER AND ABOVE THE BOOKING AMOUNT. 10.8 IT HAS NOT BEEN SUBSTANTIATED BY THE AO THAT T HE CASH MENTIONED IN IMPUGNED DOCUMENT IS OVER AND ABOVE SU CH SURRENDER AND ADDITIONS MADE AND HENCE TO CONSIDER THIS RECEIPT AGAIN AS INCOME OF THE APPELLANT IS NOT JUS TIFIED. HE FURTHER HELD THAT HERE IN THIS CASE THE ADDITION HAS BEEN BASED UPON A STANDALONE DOCUMENT WHICH IS A COMPUTER PRINTOUT, FOUND FROM THE PREMISES OF MR. YOGESH GUPTA AND FROM THE STATEMENT OF MR. YOGESH GUPTA, IT CANNOT BE CONCLUSIVELY ESTABLISHED THAT C ASH PAYMENTS RECEIVED BY MR. YOGESH GUPTA AND MR. AJIT ARE ACTUALLY EMANATING FROM THE FUNDS OF THE ASSESSEE COMPANY. THE DOCUMENTS PER SE RELATES TO THE THIRD PARTY, METER INSTRUMENT PVT. LTD. I.T.A. NO.6569/DEL/2016 8 ANOTHER IMPORTANT OBSERVATION AND FINDING OF THE LD . CIT (A) IS THAT THE ASSESSEE HAS ALREADY DISCLOSED A SUM OF RS. 24.50 CRORE AS ADDITIONAL INCOME DURING THE SURVEY OWNING TO SUCH REAL ESTATE BUSINESS WHICH HA S BEEN FURTHER ENHANCED BY THE ASSESSING OFFICER FOR THE RELEVANT ASSESSMENT YEAR, AND THEREFORE, IT IS NOT PROPER TO CONSIDER THIS CASH AS THE INCOME OF T HE ASSESSEE . THE RELEVANT FINDINGS READS AS UNDER: 10.10 IT IS ALSO OBSERVED THAT THE APPELLANT HAS D ISCLOSED A SUM OF RS. 24.50 CRORES AS ADDITIONAL INCOME DURI NG SURVEY OWING TO SUCH REAL ESTATE BUSINESS WHICH IS FURTHER ENHANCED BY THE AO FOR THE RELEVANT ASSESSMENT YEAR AND THEREFORE IT IS NOT APPROPRIATE TO CONSIDER THIS CA SH AS INCOME OF THE APPELLANT, AGAIN, WHEN THE SOURCE OF INCOME AND BUSINESS OF THE APPELLANT IS SAME AND NO EVIDEN CE HAS BEEN FOUND OR INVESTIGATED DURING ASSESSMENT PROCEE DINGS. 4. FINALLY, HE DELETED THE ADDITION BY CONCLUD ING AS UNDER: 10.11 THEREFORE, LOOKING TO THE FACTS AND CIRCUMSTA NCES OF THIS CASE AND ALSO FOLLOWING THE CASE LAWS RELIED U PON BY THE APPELLANT, AND DISCUSSIONS MADE IN THE FOREGOING PA RAGRAPHS, IT IS FOUND THAT THE PROCEEDINGS UNDER SECTION 153C INITIATED WITH REFERENCE TO THE SEARCH IN THE KALRA GROUP, NO SATISFACTION FOUND RECORDED BY THE AO OF KALRA GROUP AND THE ADD ITIONS ARE NOT RELATED TO THE DOCUMENTS FOUND DURING THEIR SEA RCH BUT ADDITIONS HAVE BEEN MADE ON THE BASIS OF STANDALONE DOCUMENT FOUND DURING SURVEY IN THE CASE OF MR. YOG ESH GUPTA, WHO HAS SERIOUS DIFFERENCES AND HIS STATEMEN T IS NOT RELIABLE AS WELL AS NOWHERE CONFIRMED REGARDING ADD ITIONAL I.T.A. NO.6569/DEL/2016 9 SOURCE OF UNEXPLAINED INCOME, HIS STATEMENT REFERS TO THE EARLIER DISCLOSURE OF ADDITIONAL INCOME, THERE ARE MATHEMATICAL ERRORS AS POINTED OUT BY THE APPELLANT, THE SAID DO CUMENT DOES NOT GOES TO PROVE THAT THIS CASH PAYMENT HAS BEEN M ADE BY THE APPELLANT, THERE IS NO GENERATION OF UNEXPLAINE D INCOME IN CASH HAS BEEN CORROBORATED BY ANY CONCLUSIVE EVIDEN CE, THE CORRECTNESS OF THE DOCUMENT IS NOT FULLY SUBSTANTIA TED, EVEN IF THERE IS A HINT OF CASH PAYMENT IN THE IMPUGNED DOC UMENT BUT NOT BACKED BY ANY CORROBORATIVE EVIDENCE, NO ADDITI ONS MADE EITHER IN THE HANDS OF MR. YOGESH GUPTA AND MR. AJI T OR IN THE CASE OF METERS & INSTRUMENTS P. LTD., THE ADDITIONA L INCOME DISCLOSED BY THE APPELLANT IN THE EARLIER ASSESSMEN T YEAR AND NO OTHER SOURCE OF SUCH INCOME HAS BEEN FOUND OR BR OUGHT ON RECORD, THEREFORE, I HEREBY INCLINED TO ACCEPT THE CONTENTIONS OF THE APPELLANT AND IT IS HELD THAT THE SUCH ADDITION AMOUNTING TO RS.13,90,26,749/- IS DEVOID OF ANY MERIT AND DES ERVES TO BE DELETED. ACCORDINGLY, GROUND OF APPEAL NOS.1.2 T O 1.5 ARE ALLOWED AND APPELLANT GETS A RELIEF. 5. BEFORE US, LD. CIT-DR SUBMITTED THAT ONE OF THE FINDING OF THE LD. CIT(A) IS THAT NO SATISFACTION WAS RECOR DED BY THE ASSESSING OFFICER OF KALRA GROUP WHICH DESERVES TO BE REJECTED IN THE LIGHT OF THE FOLLOWING JUDGMENTS OF THE HON BLE DELHI HIGH COURT:- 1. PCIT VS. SHEETAL INTERNATIONAL PVT. LTD. (2017-TIOL -1355-HC- DEL-IT), 2. PCIT VS. INSTRONICS LTD. (2017) 82 TAXMANN.COM 357 (DELHI) 3. GANPATI FINCAP SERVICES P. LTD. VS. CIT, (2017) 82 TAXMANN.COM 408 (DELHI). I.T.A. NO.6569/DEL/2016 10 WHEREIN IT HAS BEEN HELD THAT, WHERE SATISFACTION N OTE WAS RECORDED BY ASSESSING OFFICER OF SEARCHED PERSON WH O ALSO HAPPENED TO BE ASSESSING OFFICER OF ASSESSEE (OTHER PERSON) TO AFFECT THAT SEIZED DOCUMENTS BELONGED TO ASSESSEE, ISSUANCE OF NOTICE UNDER SECTION 153C AGAINST ASSESSEE ON BA SIS OF SAID NOTE WAS JUSTIFIED. 6. REGARDING OBSERVATION OF THE LD. CIT(A) ADDITION ARE NOT RELATED TO THE DOCUMENT FOUND DURING THE COURSE OF SEARCH OF KALRA GROUP AND IS BASED ON THE DOCUMENTS FOUND DUR ING THE COURSE OF SURVEY OF MR. YOGESH GUPTA, SHE SUBMITTED THAT IN THE SATISFACTION NOTE FILED BY THE REVENUE IN THE P APER BOOK ON 14.10.2019 ( PAGE 132 & 133), IT IS MENTIONED BY THE AO THAT THE DOCUMENTS SEIZED AS PER ANNEXURE A- 8 & AN NEXURE A-11 IN WHICH WORKING OF ASSETS AND LIABILITIES OF DIFFERENT PROJECTS HAVE BEEN GIVEN AND WHERE A MOU WAS ALSO S EIZED FOR PARTITION OF THE GROUP WHICH COULD NOT BE CORROBORA TED WITH THE BOOKS OF ACCOUNTS BEFORE THE INVESTIGATION WING POST SEARCH PROCEEDINGS. NEITHER THE TWO PROMOTER DIRECT ORS EXCEPT SH. YOGESH GUPTA EARED IN RESPONSE TO SUMMON NOR WE RE THE BOOKS OF ACCOUNTS PRODUCED BEFORE INVESTIGATION WIN G. YOGESH GUPTA IN HIS STATEMENT DATED 07.12.2011 HAS CONFIRM ED THAT THESE DOCUMENTS BELONG TO THE ASSESSEE COMPANY. HON BLE DELHI HIGH COURT IN THE CASE OF GANPATI FINCAP SERVICES (P.) LTD. V/S CIT [2017] 82 TAXMANN.COM 408 IN PARA 47 T O PARA 50 HAS HELD THAT IF AFTER GIVING SUFFICIENT OPPORTUNIT Y, THE ASSESSEE FAILS TO DEMONSTRATE HOW THE DOCUMENTS ARE INCRIMINATING OR NOT AND NO SUBMISSIONS ON MERITS O F THE CASE I.T.A. NO.6569/DEL/2016 11 ARE MADE, THEN NO FAULT CAN BE FOUND WITH THE AO FO R MAKING ADDITION. FURTHER, THE SURVEY IN THE CASE OF SHRI Y OGESH GUPTA WAS CONDUCTED ON 15.03.2012 AS A RESULT OF SEARCH A ND DURING THE COURSE OF SURVEY DOCUMENT AS ANNEXURE A- 35, PAGE 2 (RUNNING PAGE 10 OF THE PAPER BOOK FILED BY THE REVENUE ON 14.10.2019) WAS FOUND WHERE TRANSACTION OF CASH PAYMENT OVER AND ABOVE THE CHEQUE PAYMENT MADE TO M ETER & INSTRUMENTS PVT. LTD. FOR CITY EMPORIO, CHANDIGAR H WAS NARRATED AND THIS HAS DIRECT NEXUS WITH THE SEIZED MATERIAL WHERE THE INVESTMENT MADE IN THE PROJECT OF CITY EM PORIO CHANDIGARH AND THE VALUATION MADE OF THIS PROJECT H AVE BEEN MENTIONED AND ON THIS BASIS THE ADDITION OF RS.13,90,26,749/- OF UNEXPLAINED CASH PAYMENT HAS B EEN MADE BY THE AO. FURTHER, IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY, 274 CTR 122 DATED 25.07.2014 HONBLE KARNATAKA HIGH COURT RELYING UPON THE JUDGM ENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA 211 TAXMAN 453 HAS HELD THAT IF THE SEARCH PROCEEDI NGS HAVE ALREADY BEEN INITIATED, ANY OTHER MATERIAL CAN BE C ONSIDERED BY THE AO IN THAT PROCEEDINGS AND NO SEPARATE PROCE EDINGS IS REQUIRED TO BE INITIATED AS IN THE NEW SCHEME OF 15 3A/153C MULTIPLE PROCEEDINGS CANNOT GO TOGETHER AS WAS UNDE R 158BC EARLIER. 7. SHE FURTHER SUBMITTED THAT STATEMENT OF YOGESH G UPTA IS NOT RELIABLE, BECAUSE OF DIFFERENCES WITH OTHER SHA REHOLDERS, MATHEMATICAL ERRORS AND NOT CORROBORATED BY ANY CON CLUSIVE EVIDENCE OF UNEXPLAINED INCOME. CIT (A) HAS TOTALLY ERRED IN I.T.A. NO.6569/DEL/2016 12 MAKING SUCH STATEMENT AS SH. YOGESH GUPTA HAD APPEA RED DURING THE COURSE OF PROCEEDINGS U/S 153C BEFORE IN COME TAX AUTHORITIES AND EVEN IN THE RETURN OF INCOME FILED U/S 153C, ADDRESS OF SH. YOGESH GUPTA WAS GIVEN AND ALL THE N OTICES WERE GIVEN TO HIM FOR THIS PROCEEDING AND THERE WAS NO OBJECTION ON BEHALF OF ANY OTHER SHAREHOLDER OR DIR ECTOR. RATHER THE OTHER TWO SHAREHOLDERS NEVER APPEARED BE FORE INVESTIGATION WING EVEN IN RESPONSE TO SUMMONS OR D URING THE ASSESSMENT PROCEEDINGS EXCEPT SH. YOGESH GUPTA. FURTHER, THERE IS NO MATHEMATICAL ERROR IN THE SHEE T AND ADDITION WAS MADE ONLY IN RESPECT OF THE CASH PAYME NT OVER AND ABOVE THE CHEQUE PAYMENT MADE TO METER & INSTRU MENTS PVT. LTD. ON THE BASIS OF THE IMPOUNDED DOCUMENTS F OUND DURING THE COURSE OF SURVEY FROM THE POSSESSION OF THE DIRECTOR SH. YOGESH GUPTA. RELIANCE WAS PLACED BY H ER ON THE CASE OF HONBLE DELHI HIGH COURT OF SONAL CONSTRUCT ION 359 ITR 532 WHERE HONBLE COURT HAS HELD IN PARA 17 HEL D THAT THE CORROBORATION SOUGHT BY THE TRIBUNAL IN SUPPORT OF THE SEIZED DOCUMENTS, IT IS NOT AN INVIOLABLE RULE APPL ICABLE TO ALL SITUATIONS AND TO ALL CASES THAT EVERY SEIZED DOCUM ENT SHOULD BE CORROBORATED BEFORE ANY ADDITION CAN BE MADE BAS ED ON IT. IF CALCULATIONS AND COMPUTATIONS HAVE BEEN MADE IN THE SEIZED DOCUMENTS IN SUCH A MANNER THAT ITS PROBATIV E VALUE AND GENUINENESS CANNOT BE DOUBTED, NOTHING PREVENTS THE ASSESSING OFFICER FROM MAKING ADDITIONS ON THE BASI S OF SUCH DOCUMENTS DESPITE THE ABSENCE OF ANY CORROBORATION. I.T.A. NO.6569/DEL/2016 13 8. NO ADDITION WAS MADE IN THE HANDS OF MR. YOGESH GUPTA AND MR. AJIT OR IN THE CASE OF METERS & INSTRUMENTS PVT. LTD. WHEN THE BUSINESS IS CONDUCTED BY THE APPELLANT COM PANY AND SH. YOGESH GUPTA IS THE DIRECTOR WHO ADMITTED T HAT THIS TRANSACTION RELATES TO THE APPELLANT COMPANY AND TH E IMPOUNDED DOCUMENT ALSO SUGGESTS THAT PERTAINS TO T HE ASSESSEE COMPANY AS ON THE TOP OF IT NAME OF THE AS SESSEE COMPANY WAS MENTIONED, THEN NO ADDITION CAN BE MADE IN THE HANDS OF OTHER PERSONS WHO DEALT WITH THE CASH ON BEHALF OF THE COMPANY. FURTHER, METERS & INSTRUMENTS PVT. LTD. IS A COMPANY WITH WHOM THE ASSESSEE COMPANY HAS ENTERED INTO A PROPERTY DEVELOPMENT AGREEMENT WHO WAS THE OWNER OF THE INDUSTRIAL PLOT OF LAND FOR DEVELOPING, CONSTRUCTIN G AND BUILDING THE COMMERCIAL COMPLEX. HENCE, AS THE CASH WAS GIVEN BY THE APPELLANT COMPANY, THE ADDITION HAS TO BE MADE IN THE HANDS OF THE APPELLANT COMPANY AS UNEXPLAINE D. 9. THE ADDITIONAL INCOME WAS DISCLOSED BY THE APPEL LANT IN THE EARLIER ASSESSMENT YEAR. THE SUBMISSION OF THE APPELLANT AND THE OBSERVATION OF CIT (A) IS ERRONEOUS AS IT I S AN ADMITTED FACT THAT DURING THE COURSE OF SURVEY OPER ATION CONDUCTED IN THE CASE OF THE APPELLANT COMPANY INCR IMINATING DOCUMENTS WERE IMPOUNDED WHICH CONTAINS DETAILS OF BOOKING MADE AND PAYMENT RECEIVED FOR THE PROJECT CITY EMPO RIO AT CHANDIGARH OUTSIDE THE BOOKS OF ACCOUNTS AND ONLY R S. 1,21,41,199/- WAS SURRENDERED AS ADDITIONAL INCOME BY THE APPELLANT COMPANY DURING A.Y. 2008-09. (COPY OF ASS ESSMENT ORDER U/S 143(3), DATED 30.12.2010 IS ENCLOSED FROM PAGE 51 I.T.A. NO.6569/DEL/2016 14 TO 55). FURTHER THIS DOCUMENT CLEARLY MENTIONS THE DATE AS 31.03.2011 AND THE CASH PAYMENT WAS MADE BY THE ASS ESSEE COMPANY TO METER & INSTRUMENTS PVT. LTD. FOR CONSTR UCTION OF COMMERCIAL COMPLEX. HENCE, NO SET OFF CAN BE GIVEN OF THIS SURRENDER INCOME AGAINST THE ADDITION OF RS. 13,90, 26,749/- MADE IN A.Y. 2011-12. SHE ALSO POINTED OUT THAT HON BLE ITAT, DELHI BENCH HAS ALREADY CONSIDERED THIS FACT IN A.Y. 2008-09 IN ITA NO. 3624/DEL/2012 ORDER DATED 16.10. 2017 AND HELD IN PARA 9 THAT THE ASSESSEE IS CARRYING ON TWO PROJECTS AND DURING THE COURSE OF SURVEY AND SEARCH PROCEEDINGS IT WAS FOUND THAT IN BOTH THE PROJECTS ASSESSEE IS COLLECTING ON MONEY TOWARDS THE SALE OF SPACE. 10. ON THE ARGUMENTS ADVANCED BY THE LD. COUNSEL D URING THE COURSE OF HEARING ON 14.10.2019 THAT 153C PROCE EDINGS CAN ONLY BE INITIATED IF THE DOCUMENTS SEIZED ARE INCRIMINATING IN NATURE AND RELIANCE PLACED UPON TH E DECISION OF RRJ SECURITIES OF HONBLE DELHI HIGH COURT; IN T HE CASE OF GREEN RANGE FARMS PVT. LTD. OF HONBLE ITAT DELHI B ENCH AND THE CASE OF DREAM CITY BUILDWELL OF HONBLE DELHI H IGH COURT, SHE SUBMITTED THAT THIS ISSUE FIRST OF ALL DOES NOT ARISE FROM THE ORDER OF CIT(A) AND NO CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE, HENCE NO FRESH LEGAL GROUND CAN BE TA KEN BY THE ASSESSEE AT THIS STAGE. WITHOUT PREJUDICE, SHE SUBMI TTED THAT THIS ISSUE IS COVERED BY THE DECISION OF HONBLE DE LHI HIGH COURT IN THE CASE OF SSP AVIATION 346 ITR 177 WHERE HONBLE DELHI HIGH COURT AFTER DETAILED DISCUSSION MADE REG ARDING THE I.T.A. NO.6569/DEL/2016 15 PROVISION OF SECTION 153C HAS HELD VARIOUS RATIOS I N PARA 14, 15, 17 & 18 WHICH ARE AS UNDER: NOW THERE CAN BE A SITUATION WHEN DURING THE SEARC H CONDUCTED ON ONE PERSON UNDER SECTION 132, SOME DOCUMENTS OR VALUABLE ASSETS OR BOOKS OF ACCOUNT BELONGING TO SOME OTHER PERSON, IN WHOSE CASE THE SEARCH IS NOT CONDUCTED, MAY BE FOUN D. IN SUCH CASE, THE ASSESSING OFFICER HAS TO FIRST BE SATISFI ED UNDER SECTION 153C, WHICH PROVIDES FOR THE ASSESSMENT OF INCOME O F ANY OTHER PERSON, I.E., ANY OTHER PERSON WHO IS NOT COVERED B Y THE SEARCH, THAT THE BOOKS OF ACCOUNT OR OTHER VALUABLE ARTICLE OR DOCUMENT BELONGS TO THE OTHER PERSON (PERSON OTHER THAN THE ONE SEARCHED). HE SHALL HAND OVER THE VALUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENT TO THE ASSESSING OFFICER HAVING JURISDICTI ON OVER THE OTHER PERSON. THEREAFTER, THE ASSESSING OFFICER HAV ING JURISDICTION OVER THE OTHER PERSON HAS TO PROCEED A GAINST HIM AND ISSUE NOTICE TO THAT PERSON IN ORDER TO ASSESS OR R EASSESS THE INCOME OF SUCH OTHER PERSON IN THE MANNER CONTEMPLA TED BY THE PROVISIONS OF SECTION 153A. NOW A QUESTION MAY ARIS E AS TO THE APPLICABILITY OF THE SECOND PROVISO TO SECTION 153A IN THE CASE OF THE OTHER PERSON, IN ORDER TO EXAMINE THE QUESTION OF PENDING PROCEEDINGS WHICH HAVE TO ABATE. IN THE CASE OF THE SEARCHED PERSON, THE DATE WITH REFERENCE TO WHICH THE PROCEE DINGS FOR ASSESSMENT OR REASSESSMENT OF ANY ASSESSMENT YEAR W ITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS SHALL ABATER IS THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR THE R EQUISITION UNDER SECTION 132A. FOR INSTANCE, IN THE PRESENT CASE, WI TH REFERENCE TO THE 'P' GROUP OF COMPANIES SUCH DATE WILL BE 5.1.20 09. HOWEVER, IN THE CASE OF THE OTHER PERSON, WHICH IN THE PRESE NT CASE IS THE ASSESSEE HEREIN, SUCH DATE WILL BE THE DATE OF RECE IVING THE I.T.A. NO.6569/DEL/2016 16 BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITION BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. IN THE CASE OF THE OTHER PERSON, THE QUESTION OF PE NDENCY AND ABATEMENT OF THE PROCEEDINGS OF ASSESSMENT OR REASS ESSMENT OF THE SIX ASSESSMENT YEARS WILL BE EXAMINED WITH REFE RENCE TO SUCH DATE. [PARA 14] IT NEEDS TO BE APPRECIATED THAT THE SATISFACTION TH AT IS REQUIRED TO BE REACHED BY THE ASSESSING OFFICER HAVING JURISDIC TION OVER THE SEARCHED PERSON IS THAT THE VALUABLE ARTICLE OR BOO KS OF ACCOUNT OR DOCUMENTS SEIZED DURING THE SEARCH BELONG TO A P ERSON OTHER THAN THE SEARCHED PERSON. THERE IS NO REQUIREMENT I N SECTION 153C(1) THAT THE ASSESSING OFFICER SHOULD ALSO BE S ATISFIED THAT SUCH VALUABLE ARTICLES OR BOOKS OF ACCOUNT OR DOCUM ENTS BELONGING TO THE OTHER PERSON MUST CONCLUSIVELY REF LECT OR DISCLOSE ANY UNDISCLOSED INCOME. [PARA 15] IT WILL BE APPRECIATED FROM THE ABOVE THAT THE PROC EDURE ENVISAGED BY SECTION 153C, WHICH IS APPLICABLE TO R E ASSESSEE HEREIN, DOES NOT IN ANY WAY INFRINGE ANY RIGHTS OF THE ASSESSEE OR CURTAIL OR CURB HIS RIGHT TO BE HEARD BY THE ASS ESSING OFFICER OR TO FILE APPEALS AND QUESTION THE ASSESSMENTS MADE P URSUANT TO THE NOTICE UNDER SECTION 153A. THERE IS NO GROUND F OR ANY APPREHENSION THAT THE ASSESSEE WILL NOT BE HEARD BE FORE THE ASSESSMENTS OR REASSESSMENTS FOR THE SIX ASSESSMENT YEARS ARE COMPLETED. IN FACT, IN THE CASE OF THE ASSESS-I ITS ELF THE ASSESSING OFFICER HAS NOT MADE ANY ADDITION IN THE ASSESSMENT S COMPLETED UNDER SECTION 153A READ WITH SECTION 153C FOR THE A SSESSMENT YEARS 2003-04 TO 2006-07 AND 2008-09. HE HAS MADE T HE ADDITION OF RS. 86 CRORES ONLY IN THE ASSESSMENT YE AR 2007-08 AGAINST WHICH AN APPEAL HAS ALREADY BEEN FILED. THU S, FULL I.T.A. NO.6569/DEL/2016 17 OPPORTUNITY OF BEING HEARD IS AVAILABLE, AND IN FAC T WAS MADE AVAILABLE TO THE ASSESSEE HEREIN TO REPRESENT AGAIN ST THE PROPOSED ASSESSMENTS OR REASSESSMENTS. [PARA 15] THE ASSESSEE CONTENDED THAT THE SEIZURE OF THE DOCU MENT MUST BE OF SUCH NATURE THAT EVEN CLOSED ASSESSMENTS FOR SIX YEARS COULD BE REOPENED AND THIS REQUIREMENT POSTULATES T HAT THE PROVISIONS OF SECTION 153C CAN BE SET IN MOTION ONL Y IF THERE IS A FINDING THAT THE SEIZED DOCUMENT OR BOOKS OF ACCOUN T OR VALUABLE ARTICLE REPRESENTS THE UNDISCLOSED INCOME OF THE OT HER PERSON. IN THIS REGARD, IT CAN BE SAID THAT THIS SECTION MEREL Y ENABLES THE REVENUE AUTHORITIES TO INVESTIGATE INTO THE CONTENT S OF THE DOCUMENT SEIZED, WHICH BELONGS TO A PERSON OTHER TH AN THE PERSON SEARCHED SO THAT IT CAN BE ASCERTAINED WHETH ER THE TRANSACTION OR THE INCOME EMBEDDED IN THE DOCUMENT HAS BEEN ACCOUNTED FOR IN THE CASE OF THE APPROPRIATE PERSON . IT IS AIMED AT ENSURING THAT INCOME DOES NOT ESCAPE ASSESSMENT IN THE HANDS OF ANY OTHER PERSON MERELY BECAUSE HE HAS NOT BEEN SEARCHED UNDER SECTION 132. IT IS ONLY A FIRST STEP TO THE E NQUIRY, WHICH IS TO FOLLOW. THE ASSESSING OFFICER WHO HAS REACHED TH E SATISFACTION THAT THE DOCUMENT RELATES TO A PERSON OTHER THAN TH E SEARCHED PERSON CAN DO NOTHING EXCEPT TO FORWARD THE DOCUMEN T TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THE OTHE R PERSON AND THEREAFTER IT IS FOR THE ASSESSING OFFICER HAVING J URISDICTION OVER THE OTHER PERSON TO FOLLOW THE PROCEDURE PRESCRIBED BY SECTION 153A IN AN ATTEMPT TO ENSURE THAT THE INCOME REFLEC TED BY THE DOCUMENT HAS BEEN ACCOUNTED FOR BY SUCH OTHER PERSO N. IF HE IS SO SATISFIED AFTER OBTAINING THE RETURNS FROM SUCH OTHER PERSON FOR THE SIX ASSESSMENT YEARS, THE PROCEEDINGS WILL HAVE TO BE CLOSED. IF THE RETURNS FILED BY THE OTHER PERSON FO R THE PERIOD OF I.T.A. NO.6569/DEL/2016 18 SIX YEARS DO NOT SHOW THAT THE INCOME REFLECTED IN THE DOCUMENT HAS BEEN ACCOUNTED FOR, ADDITIONS WILL BE ACCORDING LY MADE AFTER FOLLOWING THE PROCEDURE PRESCRIBED BYLAW AND AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO SUCH OTHER P ERSON. THAT, IN SUM AND SUBSTANCE, IS THE POSITION. [PARA 17] A REFERENCE TO SECTION 158BD, WHICH FALLS UNDER THE CHAPTER XIV- B, MAY BE OF SOME USE. THIS SECTION PROVIDES FOR AS SESSMENT OF THE UNDISCLOSED INCOME BY ANY PERSON OTHER THAN THE PERSON SEARCHED UNDER SECTION 132. IT APPLIES TO SEARCH CO NDUCTED PRIOR TO 31.05.2003. IT WILL BE SEEN THAT WHEREAS SECTION 158D REFERS TO THE SATISFACTION OF THE ASSESSING OFFICER THAT ANY 'UND ISCLOSED INCOME' BELONGS TO ANY PERSON OTHER THAN THE SEARCH ED PERSON, SECTION 153C(1) IN CONTRAST REFERS MERELY TO THE SA TISFACTION OF THE ASSESSING OFFICER THAT THE VALUABLE ARTICLE OR BOOK S OF ACCOUNT OR DOCUMENT 'BELONGS' TO A PERSON OTHER THAN THE SEARC HED PERSON, (PARA 18). THIS DECISION OF HONBLE DELHI HIGH COURT IS ALSO F OLLOWED IN THE CASE OF RRJ SECURITIES WHEREIN PARA 34 HONBLE COUR T HAS HELD THAT 34. IN SSP AVIATION LTD. (SUPRA), THIS COURT HAD NOTED THE DIFFERENCE BETWEEN THE PROVISIONS OF SECTION 158BD OF THE ACT AND THE PROVISIONS OF SECTION 153C. WHEREAS SECTION 158BD REFERRED TO THE SATISFACTION OF AN AO WITH REGARD T O ANY 'UNDISCLOSED INCOME' BELONGING TO A PERSON OTHER TH AN THE SEARCHED PERSON, SECTION 153C(1) OF THE ACT IN CONT RAST REFERRED MERELY TO THE AO BEING SATISFIED THAT ASSETS/DOCUME NTS SEIZED DURING A SEARCH BELONGED TO A PERSON OTHER THAN ONE SEARCHED. IT IS, THUS, CLEAR THAT IT WAS NOT NECESSARY FOR THE A O, AT THE STAGE OF RECORDING THE SATISFACTION UNDER SECTION 153C TO COME TO A I.T.A. NO.6569/DEL/2016 19 CONCLUSION THAT SEIZED ASSETS WHICH BELONG TO ANOTH ER PERSON REPRESENT ANY UNDISCLOSED INCOME. IF THE AO OF A SE ARCHED PERSON IS SATISFIED THAT AN ASSET/DOCUMENTS SEIZED BELONG TO ANOTHER PERSON, HE HAS A DUTY TO FORWARD THE DOCUME NTS OR THE VALUABLE ASSETS SEIZED TO THE AO OF THE PERSON CONC ERNED; APART FROM DOING SO, THE AO CAN DO NOTHING MORE. HOWEVER, RELIEF WAS GIVEN ON THE GROUND THAT THE HARD DISK DID NOT BELONG TO THE ASSESSEE IN THIS CASE. 11 . FURTHER IN THE CASE OF GANPATI FINCAP (SUPRA), HON BLE DELHI HAS CONSIDERED THE CASE OF RRJ SECURITIES IN PARA 37 AND MENTIONED THAT IN THAT CASE THE SEIZED HARD DIS K DID NOT BELONG TO THE COMPANY AND ON THIS ACCOUNT, RELIEF W AS GIVEN. FURTHER IN THE CASE OF INDEX SECURITIES PVT. LTD. 8 6 TAXMANN.COM 84 ALSO, RELIEF WAS GIVEN TO THE ASSESS EE AS TRIAL BALANCE AND BALANCE SHEET SEIZED FROM OTHER PERSON DID NOT BELONG TO ASSESSEE OR RELATE TO RELEVANT ASSESSMENT YEARS. HENCE, IN THE CASE OF GREEN RANGE FARMS HONBLE TRI BUNAL HAS NOT CONSIDERED THE JUDGMENT OF HONBLE DELHI HIG H COURT OF SSP AVIATION AT ALL AND NOT CONSIDERED JUDGMENT OF RRJ SECURITIES AND INDEX SECURITIES PROPERLY. SIMILARLY , IN THE CASE OF DREAM CITY BUILDWELL, HONBLE HIGH COURT HAS HEL D THAT THE DOCUMENTS DID NOT BELONG TO THE ASSESSEE AND THE DO CUMENT IN THE FORM OF LICENSE GIVEN BY DIRECTOR TOWN & COU NTRY PLANNING HAS NO RELEVANCE FOR DETERMINING ESCAPEMEN T OF INCOME WHEREAS IN THE INSTANT CASE OF THE APPELLANT THE SEIZED DOCUMENTS OF ANNEXURE A-7 & ANNEXURE A-11 CLEARLY R ELATED TO THE COMMERCIAL PROJECT CITY EMPORIO MALL, CHANDI GARH AND SUBSEQUENTLY THE INCRIMINATING IMPOUNDED DOCUMENTS OF I.T.A. NO.6569/DEL/2016 20 ANNEXURE A-35 (PAGE 10 OF THE PAPER BOOK FILED ON 14.10.2019) HAS DIRECT NEXUS ON DETERMINATION OF TH E INCOME OF THE' APPELLANT COMPANY AND CANNOT BE IGNORED AND BRUSHED ASIDE BY THE APPELLATE AUTHORITIES. 12. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE , MR. SALIL AGGARWAL SUBMITTED THAT HERE IN THIS CASE PROCEEDIN GS HAVE BEEN INITIATED U/S.153C BASED ON DOCUMENTS SEIZED F ROM SEARCH OPERATION CARRIED OUT ON M/S. CONSORTIUM GRO UP OF CASES ON 28.07.2011; AND BASED ON THESE DOCUMENTS, SATISFACTION HAS BEEN RECORDED U/S.153C TO INITIA TE THE PROCEEDINGS U/S.153C/143A. HOWEVER, NEITHER THE DOC UMENT WAS INCRIMINATING IN NATURE NOR ANY ADDITION HAS BE EN MADE BY THE AO BASED ON SUCH SEIZED DOCUMENTS. THE BASIS FOR ADDITION IN THIS CASE IS BASED ON SURVEY MATERIAL W HICH CANNOT BE USED IN THE PROCEEDINGS U/S.153C. FOR ACQ UIRING JURISDICTION U/S.153C, THE SEIZED DOCUMENTS MUST BE INCRIMINATING AND RELATE TO THE ASSESSEE AND TO EAC H OF THE ASSESSMENT YEAR SEIZED FOR WHICH ASSESSMENT WAS SOU GHT TO BE REOPENED. HERE THE SEIZED DOCUMENTS REFERRED TO ASSESSING OFFICERS SATISFACTION NOTE, FIRST OF ALL, ARE MERE LY CERTAIN MOUS BETWEEN THE PROMOTERS OF REALTECH GROUP WHICH HAS N O CORRELATION WITH ANY INCOME OR UNDISCLOSED INCOME. THEREFORE, IN VIEW OF THE SETTLED JUDICIAL PRINCIPLE BY THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RRJ SECURITITES, 394 ITR 569 (DEL.). PCIT VS. INDEX SECURITIES PVT. LTD. , REPORTED IN (2017) 86 TAXMANN.COM 84, SUCH SEIZED DOCUMENTS WHICH ARE NOT INCRIMINATING CANNOT LEAD T O I.T.A. NO.6569/DEL/2016 21 ACQUISITION OF JURISDICTION U/S.153C AND THEREFORE, ADDITION MADE ON THE BASIS OF SURVEY DOCUMENTS CANNOT BE THE FOUNDATION FOR MAKING ASSESSMENT U/S.153C. HE FURTH ER DREW OUR ATTENTION TO THE RELEVANT FINDING OF THE LD. CI T (A) AS WE HAVE DISCUSSED ABOVE. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS A S WELL AS MATERIAL PLACED ON RECORD. ON THE FACTS AS DISCUSSE D ABOVE, IT IS CLEAR THAT THE SATISFACTION NOTE U/S.153C WAS BA SED ON CERTAIN SEIZED DOCUMENTS FOUND DURING THE COURSE OF SEARCH AND SEIZURE ACTION INITIATED IN KALRA GROUP CASES/C ONSORTIUM SECURITIES PVT. LTD. THE SATISFACTION NOTE OF THE A SSESSING OFFICER FOR ACQUIRING JURISDICTION U/S 153C READS AS UNDER: A SEARCH & SEIZURE ACTION IN KALRA GROUP OF CASES WAS INITIATED ON 28.07.2011. MAIN COMPANY OF THE GROUP IS CONSORTIUM SECURITIES PRIVATE LTD. AND IT IS A STOC K BROKERING COMPANY HAVING MEMBERSHIP OF NATIONAL STOCK EXCHANG E (NSE), BOMBAY STOCK EXCHANGE (BSE), MCX EXCHANGE LTD. (MCX -SX), UNITED STOCK EXCHANGE LTD.(USE) AND DEPOSITORY PART ICIPANT OF NATIONAL SECURITIES DEPOSITORIES LIMITED (NSDL). TH E MAIN PERSONS CONTROLLING THE GROUP ARE SH. PARAMINDER SI NGH A HIS SONS SH. HARVEER SINGH AND SH. BIKRAMJIT SINGH KALR A. CONSORTIUM GROUP OF COMPANIES ARE PROMOTED BY SH. P ARAMINDER SINGH KALRA AND THE REGISTERED OFFICE OF THE GROUP COMPANIES ARE IN NEW DELHI. SH. PARAMINDER SINGH KALRA IS THE MAI N PERSON WHO IS CONTROLLING THE AFFAIRS OF THE GROUP COMPANI ES AND HIS SONS NAMELY SH. HARVEER SINGH KALRA AND SH. BIKRAMJ IT SINGH KALRA ARE ALSO ASSISTED HIM IN CONTROLLING THE AFFA IRS OF THE GROUP I.T.A. NO.6569/DEL/2016 22 COMPANIES. THE MAIN COMPANY OF THE GROUP IS CONSORT IUM SECURITIES PRIVATE LTD. IT IS A STOCK BROKERING COM PANY HAVING MEMBERSHIP OF NSE, BSE, MCX EXCHANGE LTD, UNITED ST OCK EXCHANGE LTD AND IS ALSO RENDERING DEPOSITORY SERVI CES WITH THE HELP OF NSDL. THE GROUP IS ALSO ENGAGED IN THE REAL ESTATE DEALINGS. DURING THE SEARCH OPERATION IN M/S. CONSORTIUM CROU P OF CASES ON 28/07/2011 CERTAIN DOCUMENTS WERE RETRIEVED. WHI LE GOING THROUGH THESE DOCUMENTS IT WAS FOUND THAT THEY ARE RELATING TO M/S. REALTECH CONSTRUCTION PRIVATE LIMITED. (I) PAGE NO. 14 TO 36 OF ANNEXURE A-8 (II) PAGE NOS. 94 TO 139 OF ANNEXURE A-II THESE ARE MAINLY MOUS BETWEEN THE PROMOTERS OF REAL TECH CROUP NAMELY SH. YOGESH CUPTA, SHRI PANKAJ DAYAL AN D SHRI RAJEEV BEHL ALONG WITH SOME WORKING PERTAINING TO R EALTECH GROUP AS PER THE MOU, IT APPEARS THAT SH. PANKAJ DAYAL, Y OGESH CUPTA AND SH. RAJEEV BAHAI ARE PROMOTERS, DIRECTORS AND S HAREHOLDERS IN EQUAL PROPORTIONS IN VARIOUS COMPANIES RUNNING A ND FUNCTIONING UNDER THE REALTECH CROUP. PAGE NO. 118 TO 139 OF ANNEXURE A-LL IS A ANNEXURE OF MOU WHEREIN WORKING OF ASSETS AND LIABILITIES OF DIFFER ENT PROJECTS OF REALTECH GROUP HAVE BEEN MENTIONED. AS PER CLAUSE 1.1 OF MOU, COMPANY' MEANS ANY OF TH E GROUP COMPANY OF REALTECH' NAMELY (I) REDLTECH INFRASTRU CTURE PRIVATE LIMITED (II) REALTECH CONSTRUCTION PRIVATE LIMITED (III) REALTECH PROJECTS PRIVATE LIMITED (IV) REALTECH MAINTENANCE SERVICES PRIVATE LTD. (V) REALTECH SPORTS ACADEMY PRIVATE LI MITED (VI) I.T.A. NO.6569/DEL/2016 23 REALTECH FACILITATORS PRIVATE LIMITED (VII) REALTEC H PROMOTERS PRIVATE LIMITED (VIII) REALTECH DEVELOPERS PRIVATE LIMITED (IX) REALTECH HEIGHTS PRIVATE LIMITED (X) REALTECH SKIER S PRIVATE LIMITED (XI) VIVID BUILDERS PRIVATE LIMITED (XII) 5 .S. CON BUILD PRIVATE LIMITED (XIII) DOVE INFRASTRUCTURE PRIVATE LIMITED (IX) PACIFIC SPORTS ACADEMY PRIVATE LIMITED. DURING THE COURSE OF POST SEARCH PROCEEDING, WHEN THE ABOVEMENTIONED DOCUMENT S WERE CONFRONTED TO SH. PCRAMINDER SINGH KALRA, HE SUBMIT TED THAT THESE PAPERS/DOCUMENTS DON'T PERTAIN TO HIM. HE EXP LAINED THAT DUE TO DISPUTE BETWEEN THE PROMOTERS OF REALTECH CR OUP, NAMELY, SHRI PANKAJ DAYAL SHRI YOGESH GUPTA AND SHR I RAJEEV BEHL A MEMORANDUM OF UNDERSTANDING WAS DRAWN BY THE PARTNERS FOR PARTITION OF THE GROUP. AS PER THE TER MS OF THE MOU, EACH PARTNER HAS TO APPOINT ONE ARBITRATOR WHICH SH OULD BE ACCEPTABLE TO THE REMAINING TWO PROMOTERS OF THE GR OUP AND HE WAS ONE SUCH ARBITRATOR APPOINTED BY THE REALTECH G ROUP PROMOTERS. BESIDES HIM, SHRI B.N. CHANDOK AND SHRI KULDEEP AHUJA WERE ALSO APPOINTED AS ARBITRATORS BY THE REA LTECH GROUP. DURING THE COURSE OF POST SEARCH PROCEEDINGS SUMMON S WERE ISSUED TO THREE PROMOTER DIRECTORS OF M/S. REAL TEC H GROUP, OUT OF WHICH ONLY MR. YOGESH GUPTA APPEARED BEFORE THE INVESTIGATION WING AND AS PER THE REPORT OF THE INV ESTIGATION WING, MR. YOGESH GUPTA REMAINED EVASIVE ON VARIOUS REPLIES. THE BOOKS OF ACCOUNTS WERE NOT PRODUCED TO CORROBOR ATE THE VARIOUS ENTRIES IN THE SEIZED DOCUMENTS. THE ABOVE FACTS ON THE SEIZED DOCUMENTS OF M/S. REA LTECH CONSTRUCTION P. LTD. AND RELUCTANCE ON THE PART OF THE REALTECH GROUP TO EXPLAIN THE SEIZED DOCUMENTS, CASTS A HEAV Y DEGREE OF SUSPICION ON THE AFFAIRS OF REALTECH GROUP. I.T.A. NO.6569/DEL/2016 24 IT MAY BE NOTED THAT BOOKS OF ACCOUNT OF REALTECH C ONSTRUCTION PVT. LTD. HAVE NOT BEEN PRODUCED. AS SUCH IT COULD NOT BE ASCERTAINED THAT THE ABOVE ENTRIES/LIABILITIES MENT IONED/NOTED IN THE SEIZED DOCUMENTS AS DISCUSSED ABOVE HAVE ACTUAL LY BEEN RECORDED IN THE RESPECTIVE BOOKS OF ACCOUNTS MAINTA INED BY THE PVT. LTD. IN THE VIEW OF ABOVE FACTS AND LOOKING AT REVENUE I MPLICATION INVOLVED IN THE M/S. REAL TECH GROUP. I AM SATISFIE D THAT PROCEEDING U/S.153C OF THE INCOME TAX ACT, 1961 ARE REQUIRED TO BE INITIATED IN THIS CASE. THE CASE HAS ALREADY BEE N CENTRALIZE WITH THIS OFFICE U/S. 127 OF THE I.T. ACT, 1961 VID E CIT, CENTRAL-II, NEW DELHI'S ORDER F.NO. CIT(C)-II/CENT./2012-13/136 8 DT. 06.11.2012. 14. FROM A BARE PERUSAL OF THE SATISFACTION NOTE , IT CAN BE SEEN THAT THE SEIZED DOCUMENTS ARE MAINLY MOUS BETW EEN PROMOTERS OF REALTECH GROUP, NAMELY, SHRI YOGESH GU PTA, SHRI PANKAJ DAYAL AND SHRI RAJEEV BEHL ALONG WITH THE SOME WORKING OF THE REALTECH GROUP. THERE IS NO REFERENC E IN THE ASSESSMENT ORDER OR IN THE SEIZED DOCUMENTS THAT TH ESE ARE IN THE NATURE OF INCRIMINATING DOCUMENTS FROM WHERE IN FERENCE CAN BE DRAWN THAT THERE IS ANY UNDISCLOSED INCOME O R ANY OTHER INCOME WHICH HAS ESCAPED ASSESSMENT. APART FR OM THAT, IT IS FURTHER NOTICED THAT THE BASIS AND THE FOUNDA TION OF THE ASSESSING OFFICER FOR MAKING THE ADDITION IS THE DO CUMENT FOUND DURING THE COURSE OF SURVEY OPERATION CARRIED OUT ON THE PREMISES OF SHRI YOGESH GUPTA, WHO WAS EARLIER DIRECTOR OF THE ASSESSEE-COMPANY, CARRIED OUT BY THE INVESTI GATION WING ON 15.03.2012. DURING THE COURSE OF SUCH SURVE Y, A I.T.A. NO.6569/DEL/2016 25 DOCUMENT WAS RETRIEVED FROM COMPUTER, WHICH WAS IN THE FORM OF COMPUTER PRINTOUT, WHICH CONTAINED DETAILS OF PAYMENT TO BE RECEIVED BY M/S. METER & INSTRUMENT P VT. LTD. FROM M/S. REALTECH CONSTRUCTIONS PVT. LTD. FURTHER, ASSESSING OFFICER HAS INFERRED THAT AS PER THE DETA ILS, SHRI YOGESH GUPTA HAS PAID CASH OF AMOUNT OF RS.3,25,00, 000/- WITH RESPECT TO SALE OF DELHI SHOP AND MR. AJEET FO R RS.10,65,749/- WITH RESPECT TO SALE OF CHANDIGARH S HOP. AS OBSERVED BY THE LD. CIT (A), THE ADDITION HAS BEEN MADE ON THE BASIS OF DOCUMENT FOUND DURING THE COURSE OF SU RVEY WHICH HAS NO REFERENCE TO THE PROCEEDINGS U/S.153C, BECAUSE 153C HAS BEEN INITIATED ON THE BASIS OF DOCUMENT SE IZED DURING THE COURSE OF SEARCH CARRIED OUT ON 28.07.20 11 IN THE CASE OF KALRA GROUP. 15. NOW IT IS WELL SETTLED LAW BY THE HONBLE JUR ISDICTIONAL HIGH COURT AS STATED ABOVE THAT, TO ACQUIRE JURISDI CTION U/S.153C, THE SEIZED DOCUMENTS MUST BE INCRIMINATIN G AND MUST RELATE TO THE ASSESSMENT YEAR WHOSE ASSESSMENT ARE SOUGHT TO BE REOPENED. IN THE CASE OF PCIT VS. INDEX SECURITIES PVT. LTD. (SUPRA), HONBLE DELHI HIGH COURT AFTER REFERRING AND RELYING UPON BY THE PRINCIPLE LAID DO WN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SINGHAD TECHNICAL EDUCATIONAL SOCIETY REPORTED IN (2017) 84 TAXMANN.COM 290 AND RRJ SECURITIES (SUPRA) HAS OBSERVED AND HELD AS UNDER: 30. IN THE PRESENT CASE, THE DOCUMENTS SEIZED WERE THE TRIAL BALANCE AND BALANCE SHEETS OF THE TWO ASSESSEES FOR THE PERIOD I.T.A. NO.6569/DEL/2016 26 1ST APRIL TO 13TH SEPTEMBER 2010 (FOR ISRPL) AND 1S T APRIL TO 4TH SEPTEMBER 2010 (FOR VS I PL). BOTH SETS OF DOCUMENT S WERE SEIZED NOT FROM THE RESPECTIVE ASSESSEES BUT FROM T HE SEARCHED PERSON I.E. JAGAT AGRO COMMODITIES (P) LTD. IN OTHER WORDS, ALTHOUGH THE SAID DOCUMENTS MIGHT 'PERTAIN' TO THE ASSESSEES THEY DID NOT BELONG TO THEM. THEREFORE, ON E ESSENTIAL JURISDICTIONAL REQUIREMENT TO JUSTIFY TAX ASSUMPTION OF JURISDICTION UNDER SECTION 153 C OF THE AC T WAS NOT MET IN THE CASE OF THE TWO ASSESSEES. 31. AS REGARDS THE SECOND JURISDICTIONAL REQUIREMENT VIZ., THAT THE SEIZED DOCUMENTS MUST BE INCRIMINATING MUST RELATE TO THE AYS WHOSE ASSESSMENTS ARE SOUGHT TO B E REOPENED , THE DECISION OF THE SUPREME COURT IN SINHGAD TECHNICAL EDUCATION SOCIETY' {SUPRA) SETTLES THE IS SUE AND HOLDS THIS TO BE AN ESSENTIAL REQUIREMENT. THE DECISIONS OF THIS COURT IN RRJ SECURITIES AND ARN INFRASTRUCTURE INDIA LTD. V. ASSTT. CEL [2017] 394 HR 569/81 TAXMANN.COM 260 (DELHI) ALSO H OLD THAT IN ORDER TO JUSTIFY THE ASSUMPTION OF JURISDICTION UNDE R SECTION 153 C OF THE ACT THE DOCUMENTS SEIZED MUST BE INCRIMINATING AND MUST RELATE TO EACH OF THE AYS WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED . SINCE THE SATISFACTION NOTE FORMS THE BASIS FOR INITIATING TH E PROCEEDINGS UNDER SECTION 153 C OF THE ACT, IT IS FUTILE FOR MR . MANCHANDA TO CONTEND THAT THIS REQUIREMENT NEED NOT BE MET FOR I NITIATION OF THE PROCEEDINGS BUT ONLY DURING THE SUBSEQUENT ASSESSME NT. 32. IN THE PRESENT CASE, THE TWO SEIZED DOCUMENTS R EFERRED TO IN THE SATISFACTION NOTE IN THE EASE OF EACH ASS ESSEE ARE THE TRIAL BALANCE AND BALANCE SHEET FOR A PERIOD OF FIV E MONTHS IN 2010. IN THE FIRST PLACE, THEY DO NOT RELATE TO THE AYS FOR WHICH I.T.A. NO.6569/DEL/2016 27 THE ASSESSMENTS WERE REOPENED IN THE CASE OF BOTH A SSESSEES. SECONDLY, THEY CANNOT BE SAID TO BE INCRIMINATING. EVEN FOR THE AY TO WHICH THEY RELATED, I.E. AY 2011-12, THE AO F INALISED THE ASSESSMENT AT THE RETURNED INCOME FOR EACH ASSESSEE WITHOUT MAKING ANY ADDITIONS ON THE BASIS OF THOSE DOCUMENT S. CONSEQUENTLY EVEN THE SECOND ESSENTIAL REQUIREMENT FOR ASSUMPTION OF JURISDICTION UNDER SECTION 153 C OF T HE ACT WAS NOT MET IN THE EASE OF THE TWO ASSESSEES. 16. THE SEQUITUR OF THE JUDGMENT OF HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF RRJ SECURITIES PVT. LTD. (SUPRA) AND INDEX SECURITIES PVT. LTD. (SUPRA) ARE THAT, IF THE DOCUMENTS BELONGING TO THE ASSESSEE ARE FOUND FROM THE POSSESSION OF A PERSON SEARCH U/S.132, THAT DOES NO T IPSO FACTO MEAN THAT, CONCLUDED ASSESSMENT OF THE ASSESSEE AR E NECESSARILY TO BE REOPENED U/S.153C. IF THE DOCUMEN TS SEIZED HAVE NO RELEVANCE OR BEARING ON ANY INCOME OF THE A SSESSEE FOR THE RELEVANT ASSESSMENT YEAR WHICH COULD NOT PO SSIBLY REFLECT ANY UNDISCLOSED INCOME, THEN PROVISION OF S ECTION 153C CANNOT BE RESORTED TOO. HERE, IN THIS CASE, TH E SEIZED DOCUMENTS AS NOTED ABOVE AND ALSO NOTED BY THE LD. CIT(A) IS NOT INCRIMINATING AT ALL AND HAS NO CO-RELATION WIT H ANY UNDISCLOSED INCOME OF THE ASSESSEE AND ACCORDINGLY BASED ON SUCH DOCUMENTS THE JURISDICTION U/S.153C COULD NOT HAVE BEEN INITIATED. IN ANOTHER DECISION HONBLE DELHI H IGH COURT IN THE CASE OF PCIT VS. DREAM CITY BUILDWELL PVT. LTD . (SUPRA), THE HONBLE HIGH COURT AFTER TAKING THE NOTE OF THE AMENDMENT W.E.F. 1 ST JUNE, 2016 IN SECTION 153C HAS OBSERVED AND HELD AS UNDER: I.T.A. NO.6569/DEL/2016 28 15. IT CAN STRAIGHTAWAY BE NOTICED THAT THE CRUCIAL CHANGE IS THE SUBSTITUTION OF THE WORDS BOOKS OF ACCOUNT OR DOCU MENTS, SEIZED OR REQUISITIONED BELONGS TO OR BELONG TO A PERSON O THER THAN THE PERSON REFERRED TO IN S. 153A BY TWO CLAUSES I.E., (A) AND (B), WHERE CL. (B) IS IN THE ALTERNATIVE AND PROVIDES TH AT SUCH BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUISITIONED COULD PERTAIN TO OR CONTAIN INFORMATION THAT RELATES TO A PERSO N OTHER THAN A PERSON REFERRED TO IN S. 153A OF THE ACT. 16. THE TRIGGER FOR THE ABOVE CHANGE WAS A SERIES O F DECISIONS UNDER S. 153C, AS IT STOOD PRIOR TO THE AMENDMENT, WHICH CATEGORICALLY HELD THAT UNLESS THE DOCUMENTS OR MAT ERIAL SEIZED BELONGED TO THE ASSESSEE, THE ASSUMPTION OF JURIS DICTION UNDER S. 153C OF THE ACT QUA SUCH ASSESSEE WOULD BE IMPER MISSIBLE. THE LEGAL POSITION IN THIS REGARD WAS EXPLAINED IN PEPSI FOODS (P) LTD. US. ASSTT. CIT (2014) 270 CTR (DEL) 459: (2014 ) 108 DTR (DEL) 297 : (2014) 367 ITR 112 (DEL) WHERE IN PARA 6 IT WAS HELD AS UNDER : 6. ON A PLAIN READING OF S. 153C, IT IS EVIDENT TH AT THE AO OF THE SEARCHED PERSON MUST BE SATISFIED THAT INTER ALIA ANY DOCUMENT SEIZED OR REQUISITIONED BELONGS TO A PER SON OTHER THAN THE SEARCHED PERSON. IT IS ONLY THEN THAT THE AO OF THE SEARCHED PERSON CAN HAND OVER SUCH DOCUMENT TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON (OTHER T HAN THE SEARCHED PERSON). FURTHERMORE, IT IS ONLY AFTER SUC H HANDING OVER THAT THE AO OF SUCH OTHER PERSON CAN ISSUE A N OTICE TO THAT PERSON AND ASSESS OR REASSESS HIS INCOME IN ACCORDA NCE WITH THE PROVISIONS OF S. 153A. THEREFORE, BEFORE A NOTI CE UNDER S. 153C CAN BE ISSUED TWO STEPS HAVE TO BE TAKEN. THE FIRST STEP IS THAT THE AO OF THE PERSON WHO IS SEARCHED MUST A RRIVE AT A I.T.A. NO.6569/DEL/2016 29 CLEAR SATISFACTION THAT A DOCUMENT SEIZED FROM HIM DOES NOT BELONG TO HIM BUT TO SOME OTHER PERSON. THE SECOND STEP IS- AFTER SUCH SATISFACTION IS ARRIVED AT THAT THE DOCU MENT IS HANDED OVER TO THE AO OF THE PERSON TO WHOM THE SAI D DOCUMENT BELONGS. IN THE PRESENT CASES IT HAS BEE N URGED ON BEHALF OF THE PETITIONER THAT THE FIRST STEP ITSELF HAS NOT BEEN FULFILLED. FOR THIS PURPOSE IT WOULD BE NECESSARY T O EXAMINE THE PROVISIONS OF PRESUMPTIONS AS INDICATED ABOVE. SEC. 132(4A)(I) CLEARLY STIPULATES THAT WHEN INTER ALIA ANY DOCUMEN T IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE C OURSE OF A SEARCH IT MAY BE PRESUMED THAT SUCH DOCUMENT BELONG S TO SUCH PERSON. IT IS SIMILARLY PROVIDED IN S. 292C (1 )(I). IN OTHER WORDS, WHENEVER A DOCUMENT IS FOUND FROM A PERSON W HO IS BEING SEARCHED THE NORMAL PRESUMPTION IS THAT THE S AID DOCUMENT BELONGS TO THAT PERSON. IT IS FOR THE AO T O REBUT THAT PRESUMPTION AND COME TO A CONCLUSION OR SATISFACTI ON' THAT THE DOCUMENT IN FACT BELONGS TO SOMEBODY ELSE. THERE MU ST BE SOME COGENT MATERIAL AVAILABLE WITH THE AO BEFORE H E/SHE ARRIVES AT THE SATISFACTION THAT THE SEIZED DOCUMEN T DOES NOT BELONG TO THE SEARCHED PERSON BUT TO SOMEBODY ELSE. SURMISE AND CONJECTURE CANNOT TAKE THE PLACE OF SATISFACTI ON. 17. FURTHER, THE HONBLE HIGH COURT HELD THAT THE O NUS WAS ON THE REVENUE TO SHOW THAT INCRIMINATING MATERIAL/ DOCUMENT RECOVERED AT THE TIME OF SEARCH BELONGS TO THE ASSESSEE AND IT IS NOT ENOUGH FOR THE REVENUE TO SH OW THAT DOCUMENTS PERTAINED TO THE ASSESSEE OR CONTAINS INF ORMATION THAT RELATES TO THE ASSESSEE. I.T.A. NO.6569/DEL/2016 30 18. COMING TO THE ARGUMENTS RELIED UPON BY THE LD. CIT-DR IN SO FAR AS CONTENTION THAT THE LD. CIT (A) HAS ER RONEOSLY HELD THAT SATISFACTION SHOULD BE RECORDED BY THE AS SESSING OFFICER AND THE KALRA GROUP AND NOT THAT OF THE ASS ESSEE IS ACCEPTED IN VIEW OF THE JUDGMENT OF HONBLE DELHI HI GH COURT IN THE CASE OF PCIT VS. SHEETAL INTERNATIONAL PVT. LTD. (SUPRA) AND GANPATI FINSERVE LTD. (SUPRA) . HOWEVER, THE OTHER ARGUMENTS RAISED BY THE LD. CIT-DR IN VIEW OF THE CATEGORICAL JUDGMENTS OF HONBLE DELHI HIGH COURT I N THE CASE OF RRJ SECURITIES LTD. (SUPRA), PCIT VS. DREAM CITY BUILDWELL CANNOT BE ACCEPTED. 19. FURTHER, THE OBJECTION RAISED BY THE LD. CIT-DR THAT LD. COUNSEL FOR THE ASSESSEE CANNOT RAISE THIS ISSUE WI THOUT FILING THE CROSS OBJECTION CANNOT BE ACCEPTED, BECAUSE THE ASSESSEE CAN VERY WELL CHALLENGED THE SCOPE OF THE ADDITION ON LEGAL GROUNDS, WHEN HERE IN THIS CASE LD. CIT(A) HAS GIVE N A CATEGORICAL FINDING THAT TECHNICALLY IN THIS CASE P ROCEEDINGS U/S.153C COULD NOT HAVE BEEN INITIATED BECAUSE THE SATISFACTION AND THE PROCEEDINGS ARE NOT BASED ON A NY SEIZED DOCUMENTS ALBEIT ON THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY. 20. APART FROM THAT, IT IS SEEN THAT THE LD. CIT (A ) HAS NOTED THAT THE ASSESSEE HAS DISCLOSED A SUM OF RS.24.50 C RORES AS ADDITIONAL INCOME DURING SURVEY OWING TO SUCH REAL ESTATE BUSINESS OF THE ASSESSEE, AND THEREFORE, IF AT ALL THERE IS ANY ELEMENT OF CASH PAYMENT OR CASH INCOME AND THE SOUR CE OF I.T.A. NO.6569/DEL/2016 31 INCOME OF THE BUSINESS IS THE SAME AND NO FURTHER E VIDENCE HAS BEEN FOUND OR INVESTIGATED DURING THE ASSESSMEN T PROCEEDINGS, THEN NO ADDITION CAN BE MADE AGAIN IN THIS ASSESSMENT YEAR. 21. THUS, THE ENTIRE ADDITION IS HELD TO BE BEYOND THE SCOPE OF SECTION 153C AND THE SAME IS DELETED. ACCORDINGL Y, THE ORDER OF THE LD. CIT (A) IS UPHELD AND APPEAL OF TH E REVENUE IS DISMISSED. 22. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2020. SD/- SD/- [G.S. PANNU] [AMIT SHUKLA] VICE PRESIDENT JUDICIAL MEMBER DATED: 14 TH JANUARY, 2020 PKK: