ACIT, New Delhi V. M/s. D.D. Resorts Pvt. Ltd., New Delhi

ITA 6895/DEL/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8409 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 31-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N POONIA
• Assessee Lawyers: NIDHI SRIVASTAVA
• Keywords: Search and seizure; Document seized; Procedural lapse; Documents seized
• Section: 143(3); 133A; 153A; 143(2); 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NOS.6895& 6896/DEL/2015 ASSESSMENT YEAR: 2007-08& 2008-09 & I.T.A. NO. 248/AGRA/2016 ASSESSMENT YEAR: 2009-10 ACIT, CENTRAL CIRCLE-7, VS. D.D. RESORTS PVT. LTD ., NEW DELHI. 12, LAJPAT NAGAR-IV, NEW DELHI. PAN : AAACD 4557E (APPELLANT) (RESPONDENT) REVENUE BY: MS. NIDHI SRIVASTAVA, CIT/DR DEPARTMENT BY: SH. SUDESH GARG, ADVOCATE & SH. R.N. POONIA, AR DATE OF HEARING: 15/01/2020 DATE OF PRONOUNCEMENT: 21/01/2020 ORDER PER K. NARASIMHA CHARY, JM CHALLENGING THE SEPARATE ORDERS DATED 05.10.2015 FO R ASSESSMENT YEARS 2007-08 AND 2008-09 AND ORDER DATED 18.05.201 6 FOR ASSESSMENT YEAR 2009-10 PASSED BY THE COMMISSIONER OF INCOME T AX (APPEALS)-23, NEW DELHI IN THE CASES OF D.D. RESORTS PVT. LTD. ( THE ASSESSEE), REVENUE PREFERRED THESE APPEALS. 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND IT W AS DEVELOPING A SHOPPING CUM OFFICE COMPLEX BY NAME CITYSCAPE AT GURGAON. ON 31/7/2008, SEARCH AND SEIZURE OPERATIONS UNDER SECT ION 132 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) WERE CARRIED OU T IN RAJ DURBAR GROUP OF CASES AND COMPUTERISED BOOKS OF ACCOUNTS OF THE ASS ESSEE WERE SEIZED. A SURVEY UNDER SECTION 133A OF THE ACTWAS ALSO CARRIE D OUT AT THE PROJECT SITE OF THE ASSESSEE COMPANY. 3. NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED ON 10/3/2010 AND THE ASSESSEE FILED THEIR RETURNS OF INCOME FOR THE ASSESSMENT YEARS 2007- 08, 2008-09 AND 2009-10 ON 30/8/2010, 9/4/2010 AND 30/9/2009 RESPECTIVELY DECLARING INCOME OF RS.9,04,223/-, RS. 13,04,22,124/-AND RS.4,51,81,260/-RESPECTIVELY.AFTER SCRUTINY, LEARNE D ASSESSING OFFICER PASSED THE ORDERS DATED 27/12/2010 UNDER SECTION 15 3C READ WITH SECTION 143(3) OF THE ACT IN RESPECT OF ASSESSMENT YEAR 200 7-08 AND 2008-09 BY REJECTING THE BOOKS OF ACCOUNTS, AND UNDER SECTION 143(3) OF THE ACT IN RESPECT OF THE ASSESSMENT YEAR 2009-10, BY MAKING C ERTAIN ADDITIONS. IN RESPECT OF THE ASSESSMENT YEARS 2007-08 AND 2008-09 , LEARNED ASSESSING OFFICER OBSERVED THAT DURING THE SEARCH OPERATIONS IN THE CASE OF RAJ DURBAR GROUP ON 31/7/2008, CERTAIN DOCUMENTS WERE S EIZED AND SUCH DOCUMENTS BELONGED TO THE ASSESSEE; THAT A SURVEY U NDER SECTION 133A OF THE ACT WAS ALSO CARRIED OUT AT THE PROJECT SITE OF THE ASSESSEE, NAMELY, CITYSCAPE AT THE GURUGAON;THAT DURING THE SEARCH AND SEIZURE OPERATIONS AT RAJ DURBAR GROUP, COMPUTERISED BOOKS OF ACCOUNTS OF THE ASSESSEE WERE ALSO SEIZED; AND THAT A PERUSAL OF BOOKS OF ACCOUNT S AND THE DETAILS FILED BY THE ASSESSEE SUGGESTED THAT DURING THE FINANCIAL YE AR 2006-07 THE 3 ASSESSEE HAD DEBITED AN AMOUNT OF RS.51,79,38,910/- AS THE COST TOWARDS SURRENDER OF AREA BY CERTAIN COMPANIES. 4. AGGRIEVED BY THE ACTION OF THE LEARNED ASSESSING OFFICER, ASSESSEE PREFERRED APPEALS BEFORE THE LD. CIT(A). IT WAS SUB MITTED BEFORE THE LD. CIT(A), AMONG OTHER THINGS, THAT NO INCRIMINATING M ATERIAL/DOCUMENTS WERE FOUND AND ACTED UPON FOR MAKING THE ADDITIONS AND IN VIEW OF VARIOUS DECISIONS OF THE TRIBUNAL AND COURTS SUCH A DDITIONS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL ARE NOT SUSTAINABLE. 5. LD. CIT(A) OBSERVED THAT IN VIEW OF THE FACT THA T THE LEGAL GROUNDS GO TO THE ROOT OF THE CASE AND THE RECORDING OF SAT ISFACTION AND THE VERY INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT OF THE ACT WERE CHALLENGED, IT WAS DESIRABLE TO TAKE UP SUCH GROUN DS FOR ADJUDICATION FIRST. AS A MATTER OF FACT HE OBSERVED THAT FROM THE ASSES SMENT ORDER IT COULD BE OBSERVED THAT THE ASSESSING OFFICER HAS NOT REFERRE D TO ANY SEIZED MATERIAL/DOCUMENT BELONGING TO OR RELATING TO T HE ASSESSEE COMPANY WHICH COULD BE CONSIDERED TO BE THE BASIS FOR ASSES SMENT UNDER SECTION 153C READ WITH SECTION 153A OF THE ACT; THAT THE LE ARNED ASSESSING OFFICER REFERRED TO THE BOOKS OF ACCOUNTS OF THE ASSESSEE C OMPANY WHICH WERE SUBMITTED BY THE ASSESSEE TO BE THE REGULAR BOOKS O F ACCOUNT BASED ON WHICH THE ORIGINAL RETURN OF INCOME WAS FILED UNDER SECTION 139 OF THE ACT AND THE LEARNED ASSESSING OFFICER HAD NOT EVEN REFE RRED TO SUCH AUDITED BOOKS OF ACCOUNTS WHILE CONSIDERING THE OTHER ADDIT IONS AND THE BASIS FOR THE LEARNED ASSESSING OFFICER FOR MAKING THE ADDITI ONS WAS THE ENTRIES IN THE REGULAR BOOKS OF ACCOUNT, WHICH WERE IN FACT, R EJECTED BY THE LEARNED ASSESSING OFFICER; THAT APPLICATION OF PERCENTAGE C OMPLETION METHOD TO DERIVE THE PROFIT FROM THE CONSTRUCTION BUSINESS, W HICH IS AN ESTIMATION, 4 CANNOT BE SAID TO BE THE COMPUTATION OF PROFITS EMA NATING FROM THE SEIZED MATERIAL; THAT ON ONE HAND THE LEARNED ASSESSING OF FICER MADE ADDITIONS BASING ON THE ENTRIES IN THE REGULAR BOOKS OF ACCOU NT AND ON THE OTHER HAND REJECTED THE SAME BOOKS OF ACCOUNTS; THAT NOWH ERE IN THE ASSESSMENT ORDER THE ASSESSING OFFICER PLACED RELIA NCE ON ANY SEIZED MATERIAL RELEVANT TO THE ASSESSMENT UNDER SECTION 1 53A OF THE ACT/153C OF THE ACT; THAT THERE WERE NO PROCEEDINGS PENDING IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2007-08 AND 2008- 09 AS ON THE DATE OF THE SEARCH; AND THAT, THEREFORE, IN THE LIGHT OF TH E DECISION IN CIT VS. KABUL CHAWLA, 380 ITR 573 THE PROCEEDINGS UNDER SECTION 153C OF THE ACT CANNOT BE SUSTAINED. LD. CIT(A) FURTHER OBSERVED TH AT THE SATISFACTION RECORDED BY THE LEARNED ASSESSING OFFICER IN THESE CASES IS GROSSLY DEFICIENT AND DOES NOT FULFIL THE LEGAL REQUIREMENT S TO ASSUME JURISDICTION UNDER SECTION 153C OF THE ACT AND IN TERMS OF THE D ECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PEPSICO INDIA HOLDI NGS PRIVATE LIMITED 50 TAXMANN.COM (2014) 299 (DELHI) AND PEPSIFOODS PRIVA TE LIMITED(2014) 52 TAXMANN.COM 220 (DELHI),THE ASSESSMENT UNDER SECTIO N 153C OF THE ACT READ WITH SECTION 143(3) OF THE ACT IS LIABLE TO BE QUASHED. IN THE ORDER FOR THE ASSESSMENT YEAR 2008-09, LD. CIT(A) OBSERVED TH AT THE FACTS IN RESPECT OF THE ASSESSMENT YEAR 2007-08 AND 2008-09 ARE IDEN TICAL. LD. CIT(A) ACCORDINGLY QUASHED THE ASSESSMENT PROCEEDINGS AND DECLINED TO CONSIDER THE SUSTAINABILITY OF ADDITIONS ON MERITS. 6. REVENUE IS, THEREFORE, BEFORE US IN THESE APPEAL S, ON THE FOLLOWING IDENTICAL GROUNDS:- 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW A ND ON FACTS. 5 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW IN QUASHING THE ORDER U/S. 153C OF THE INCOME T AX ACT, 1961. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE CI T HAS ERRED IN OBSERVING THAT PROCEEDINGS U/S. 153C CAN BE INITIAT ED ONLY IF THESEIZED DOCUMENTS BELONGS TO THE OTHER PARTY. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE CI T(A) HAS ERRED IN OBSERVING THAT THE CRITERIA FOR INITIATING 153C PRO CEEDINGS IS BELONGINGNESS OF THE DOCUMENTS INSTEAD OF RELATION OF THE INFORMATION IN THE DOCUMENTS TO THE ASSESSEE. 5. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN HOLDING THAT ORDER U/S. 153C CAN BE PASSED ONLY ON THE BASIS OF SEIZED DOCUMENTS. 7. IT IS THE SUBMISSION OF THE LD. DR THAT FROM A B ARE READING OF THE PROVISIONS OF SECTION 153A OF THE ACT AND 153C OF T HE ACT IT IS CLEAR THAT THE BASIC PREREQUISITE TO ISSUE NOTICE UNDER SECTIO N 153C OF THE ACT IS THAT THE LEARNED ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCO UNT OR DOCUMENTS SEIZED OR REQUISITIONEDBELONGS OR BELONGED TO A PERSON OTH ER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT AND IF THE A SSESSING OFFICER IS SO SATISFIED HE SHALL ASSESS OR REASSESS THE TOTAL INC OME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON MADE. SHE FURTHER SUBMITTED THAT THE LEARNED ASSESSING OFFICER WAS WE LL WITHIN THE AMBIT OF LAW AND THE LD. CIT(A) ERRED IN HOLDING THAT THE PR OCEEDINGS INITIATED UNDER SECTION 153C OF THE ACT ARE VOID AND IN DOING SO THE LD. CIT(A) FAILED TO APPRECIATE THE CLEARLEGISLATIVE INTENT OF SECTIO N 153C OF THE ACT. SHE SUBMITTED THAT THE TAXING STATUTE SHOULD BE CONSTRU ED STRICTLY AND IN ACCORDANCE WITH THE NATURAL CONSTRUCTION OF THE WOR DS. HE FURTHER SUBMITTED THAT A GENERAL PRINCIPLE ASAPPRECIATED BY VARIOUS HIGH COURTS IS 6 THAT THE LEARNED ASSESSING OFFICER OF THE SEARCHED PERSON IS NOT REQUIRED TO EXAMINE WHETHER THE ASSETS OR DOCUMENTS SEIZED R EFLECTED UNDISCLOSED INCOME OR NOT AND ALL THAT IS REQUIRED FOR HIM IS T O SATISFY HIMSELF THAT THE DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON, BUT WERE OF OTHER PERSON. HE PLACED RELIANCE ON THE DECISION REPORTED IN PCIT VS. SUPER MALL PRIVATE LIMITED IN ITA NO. 449/2016 AND SOME OTHER CASES. 8. FURTHER, WITHOUT PREJUDICE TO THIS ARGUMENT, LD. DR SUBMITTED THAT THE ORDER OF DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) HAS NOT ACHIEVED FINALITY AND ON THE OTHER HAND THE DECISIO NS REPORTED IN THE CASE OF ANIL KUMAR BHATIA, 24 TAXMANN.COM 98 WHICH HAS B EEN FOLLOWED IN A NUMBER OF CASES LAYS DOWN THAT THE ASSESSMENT UNDER SECTION 153A OF THE ACT NEED NOT NECESSARILY BE BASED ON INCRIMINATING MATERIAL. ACCORDING TO HER THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICES TO THE ASSESSEE TO FURNISH RETURNS FOR SIX ASSESSMENT YEARS AND HE IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME INCLUDING UNDISCLOSED INC OME OF THE ASSESSEE; THAT THE ASSESSING OFFICER IS ENTRUSTED WITH THE DU TY OF BRINGING TO TAX THE TOTAL INCOME OF THE ASSESSEE WHOSE CASES ARE COVERE D BY SECTION 153A OF THE ACT BY MAKING REASSESSMENTS; THAT THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE TOTAL INCOME OF THE ASSESSEE IN WHOSE CASE SE ARCH OR REQUISITION HAS BEEN INITIATED. SHE ALSO PLACED RELIANCE ON CERTAIN DECISIONS OF THE TRIBUNAL IN SUPPORT OF HER CONTENTIONS. 9. PER CONTRA, IT IS THE ARGUMENT OF THE LD. AR THA T FROM THE GROUNDS OF APPEAL IT COULD BE SEEN THAT THE MAIN CONTENTION OF THE REVENUE IS THAT IT IS NOT NECESSARY THAT THE SEIZED DOCUMENTS SHOULD B ELONG TO THE PARTY OTHER THAN THE PARTY IN WHOSE CASES SUCH ACTION WAS CARRIED OUT AND THAT IT 7 IS NOT NECESSARY THAT THE ADDITIONS UNDER SECTION 1 53C OF THE ACT HAVE TO BE ONLY ON THE BASIS OF THE SEIZED INCRIMINATING DO CUMENTS. HE SUBMITS THAT BOTH THESE CONTENTIONS OF THE REVENUE ARE FULL Y SETTLED BY NUMEROUS DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT AND ALSO SEVERAL CASES WHEREIN ACTION UNDER SECTION 153C OF THE ACT WAS TA KEN IN THE CASE OF ASSESSEE GROUP ITSELF UNDER THE SAME SET OF FACTS A ND CIRCUMSTANCES, AND SUCH ENTITIES INCLUDE M/S NATURAL PRODUCT BIOTECH L TD, M/S NAGESHWARINVESTMENT LTD, M/S GLOBAL HERITAGE VENTUR ES LTD, M/S NARENDRA IMPEX LTD, M/S NS SOFTWARE, M/S GLOBAL REA LITY CREATIONS LTD, M/S GLOBALTELE-VENTURES LTD, AND M/S CHITRAKOOTMERC HANDISE PRIVATE LIMITED. 10. STRESSING ON THE NECESSITY OF BELONGINGNESS OF DOCUMENTS FOR ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF TH E ACT, HE SUBMITTED THAT THIS ISSUE HAS BEEN DEALT WITH IN GREAT DETAIL S BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PEPSICO IN DIA HOLDINGS PRIVATE LIMITED (SUPRA) AND PEPSI FOODS PRIVATE LIMITED (SU PRA) AND SUBMITTED THAT THE HONBLE HIGH COURT CATEGORICALLY HELD THAT IT IS ESSENTIAL THAT THE SEIZED DOCUMENTS MUST BELONG TO THE PERSONS OTHER T HAN THE PERSON SEARCHED, TO ENABLE THE ASSUMPTION OF VALID JURISDI CTION UNDER SECTION 153C OF THE ACT. 11. LD. AR HAS PLACED ON RECORD THE DECISIONS OF TH E TRIBUNAL IN THE CASE OF THE COMPANIES BELONGING TO THE GROUP OF THE ASSE SSEE WHEREIN THE FACTS INVOLVED ARE IDENTICAL AND WERE ALSO COVERED BY THE SEARCH DATED 31/7/2008 CONDUCTED IN THE CASE OF RAJ DURBAR GROUP OF CASES. WHILE SUBMITTING THE COPIES OF ORDERS OF THE HONBLE HIGH COURT, HE SUBMITTED THAT THE VIEW TAKEN BY THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE HIGH 8 COURT WHILE DISMISSING THE APPEALS PREFERRED BY THE REVENUE. HE ALSO SUBMITTED THAT THE SPECIAL LEAVE PETITIONS DECISION OF THE HONBLE SUPREME COURT IN THE CASES OF M/S NATURAL PRODUCTS BIOTECH LTD AND M/S NAGESHWARINVESTMENT LTD. 12. LD. AR JUSTIFIES THE OBSERVATIONS OF THE LD. CI T(A) AS TO THE SEPARATE SATISFACTION TO BE RECORDED BY THE ASSESSING OFFICE R OF THE OTHER PERSON UNDER SECTION 153C OF THE ACT, BY PLACING RELIANCE ON THE CIRCULAR DATED 31/12/2015 ISSUED BY THE CBDT WHEREIN IT IS STATED THAT EVEN THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE OT HER PERSON IS ONE AND THE SAME, THEN ALSO THE ASSESSING OFFICER IS REQUIR ED TO RECORD SATISFACTION AS HAS BEEN HELD BY COURTS. 13. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE ON EITHER SIDE. ON APPEAL, THE SATISFACTION NO TE OF THE LEARNED ASSESSING OFFICER, HAVING ANALYSED IT IN THE LIGHT OF THE SUBMISSIONS MADE BY THE ASSESSEE, LD. CIT(A), AS A MATTER OF FACT, F OUND THAT THE LEARNED ASSESSING OFFICER MENTIONED THAT DURING THE COURSE OF SEARCH AT THE PREMISES OF VARIOUS PERSONS OF THE RAJ DURBAR GROUP , VARIOUS PAPERS WERE FOUND AND SEIZED, NO SEARCH WAS CONDUCTED AGAINST T HE ASSESSEE COMPANY. FURTHER, THERE IS NO MENTION OF THE CONTENTS OR DET AILS OF ANY DOCUMENT AS TO HOW CERTAIN DOCUMENTS MENTIONED THEREIN BELONG TO OR RELATED TO, THE ASSESSEE COMPANY; THAT THE ASSESSMENT ORDER ALS O DOES NOT GIVE SUPPORT TO THE SAID RECITALS INASMUCH AS THERE IS N O REFERENCE OF ANY SEIZED MATERIAL BELONGING TO OR EVEN RELATING TO THE A SSESSEE COMPANY LEAVE ASIDE ANY INCRIMINATING MATERIAL RELEVANT TO ASSESS MENT UNDER SECTION 153C OF THE ACT/153A OF THE ACT; AND THAT IN THE LI GHT OF THE JUDGEMENT OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF PEPS ICO INDIA (SUPRA) PEPSI 9 FOODS (SUPRA) THE SATISFACTION RECORDED BY THE LEAR NED ASSESSING OFFICER IS GROSSLY DEFICIENT AND IT DOES NOT FULFIL THE LEGAL REQUIREMENTS TO ASSUME THE JURISDICTION UNDER SECTION 153C OF THE ACT. 14. ON A PERUSAL OF THE ORDERS OF THE TRIBUNAL IN T HE CASES OF NATURAL PRODUCTS BIO TECH LTD. IN ITA NO. 3089/DEL/2013 AND BATCH, NAGESHWARINVESTMENT LTD IN ITA NO. 5393/DEL/2012 AN D BATCH, M/S GLOBAL HERITAGE VENTURES LTD IN ITA NO. 3196 /DEL/ 2013, NARENDRA IMPEX LTD IN ITA NO. 5945/DEL/2013, M/S GLOBAL REALITY CR EATIONS LTD IN ITA NO. 245/DEL/2014, M/S GLOBAL HERITAGE VENTURES LTD IN I TA NO. 1335/DEL/2014, M/S GLOBAL TELE-VENTURES LTD IN ITA NO. 1341/DEL/20 14, M/SCHITRAKOOT MERCHANDISE PRIVATE LIMITED IN ITA NO. 6801 /DEL/ 2 013, WE FIND THAT ALL THESE ENTITIES ARE COVERED BY THE SEARCH THAT TOOK PLACE ON 31/7/2008 IN THE RAJ DURBAR GROUP OF CASES. IN ALL THESE MATTERS , IN IDENTICAL CIRCUMSTANCES, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF THE ACT WAS CALLED IN QUESTION WITH REFERENCE TO THE DE CISIONS OF THE HONBLE HIGH COURT IN THE CASES OF PEPSI FOODS PRIVATE LIMI TED (SUPRA) AND PEPSICO INDIA HOLDING PRIVATE LIMITED (SUPRA). IN ALL THESE MATTERS, WHEREIN THE FACTS ARE IDENTICAL, WHILE REFERRING TO THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASES OF PEPSICO I NDIA HOLDINGS PRIVATE LIMITED (SUPRA), PEPSI FOODS (SUPRA) AND ALSO THE D ECISION OF THE TRIBUNAL IN THE CASE OF M/S VK FISCAL SERVICES PRIVATE LIMIT ED IN ITA NUMBERS 5462, 5465/DEL/2012, THE TRIBUNAL REACHED A CONCLUSION TH AT THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF THE ACT WAS BAD AND THE CONSEQUENT ASSESSMENT WAS NULL AND VOID.FROM THE RECORD WE FUR THER FIND THAT SUCH A VIEW TAKEN BY THE TRIBUNAL HAS BEEN CONFIRMED BY TH E HONBLE HIGH COURT AS IS EVIDENT FROM THE ORDERS PRODUCED BEFORE US. 10 15. THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEA R 2007-08 AND 2008-09, BEING IDENTICAL TO FACTS AND CIRCUMSTANCES OF SUCH CASES OF GROUP COMPANIES, IS SQUARELY COVERED BY THE DECISIONS OF THE TRIBUNAL AND THE HONBLE HIGH COURT. WHILE RESPECTFULLY FOLLOWING TH E SAME, WE HOLD THAT IN THIS CASE ALSO THERE IS A DEFICIENCY IN THE SATISFA CTION RECORDED BY THE LEARNED ASSESSING OFFICER INASMUCH AS NOT SPECIFYIN G AS TO HOW ANY DOCUMENT THAT WAS SEIZED AT THE SEARCH EITHER BELO NG TO OR RELATED TO THE ASSESSEE COMPANY. CONSEQUENTLY, WE FIND THAT IN VIEW OF THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF PEPSICO IN DIA HOLDINGS (SUPRA) AND PEPSI FOOD (SUPRA), THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF THE ACT BY THE LEARNED ASSESSING OFFICER CANNOT BE APPROVED AND CONSEQUENTLY THE ASSESSMENTS ARE LIABLE TO BE QUASH ED. GROUNDS OF APPEAL IN ITA NO. 6895 AND 6896/DEL/2015 ARE DISMISSED. 16. NOW COMING TO ITA NO. 248/DEL/2016 FOR THE ASSE SSMENT YEAR 2009-10, THE FACTS ARE THAT THE RETURN OF INCOME WA S FILED ON 30/9/2009 AND NOTICE UNDER SECTION 143(2) OF THE ACT COULD HA VE BEEN ISSUED TILL 30/9/2010 AND AS A MATTER OF FACT SUCH NOTICE WAS I SSUED ON 30/4/2010. LEARNED ASSESSING OFFICER RESUMED JURISDICTION IN R ESPECT OF THE ASSESSEE WHO IS NOT A SEARCHED PERSON ON 10/3/2010, THE DATE ON WHICH HE HAS USED POSSESSION OF THE SEIZED ASSETS/DOCUMENTS IN H IS CAPACITY AS AN AO OF THE PERSON OTHER THAN THE SEARCHED PERSON. SINCE BY 10/3/2010 THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2009-10 ARE PENDING, THEY WOULD ABATE ON THE LEARNED ASSESSING OFFICER RESUMI NG JURISDICTION UNDER SECTION 153C OF THE ACT IN THIS CASE. 17. LD. CIT(A), HAVING TAKEN COGNIZANCE OF THESE FA CTS OBSERVED THAT IN VIEW OF THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF 11 SSP AVIATION LTD VS. DCIT (2012) 346 ITR 177 THE CA SE OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 WAS TO BE ASSESSED UNDER SE CTION 153C OF THE ACT; THAT INASMUCH AS THE ASSESSING OFFICER NEITHER RECORDED ANY SATISFACTION FOR THIS ASSESSMENT YEAR IN THE CASE O F THE ASSESSEE NOR ISSUED ANY NOTICE UNDER SECTION 153C OF THE ACT AND MAKE A SSESSMENT UNDER SECTION 153C OF THE ACT READ WITH SECTION 153A OF T HE ACT, RATHER ASSESSED THE SAME UNDER SECTION 143(3) OF THE ACT AFTER ISSU ING NOTICE UNDER SECTION 143(2) OF THE ACT, WITHOUT RECORDING THE MANDATORY SATISFACTION THE ASSESSMENT, AND IT IS, THEREFORE, BAD UNDER LAW. 18. INSOFAR AS THE ABOVE STATED DATES ARE CONCERNED , THERE IS NO DISPUTE. SINCE A NOTICE UNDER SECTION 143(2) OF THE ACT COULD HAVE BEEN ISSUED TILL 30/9/2010 AND THE LEARNED ASSESSING OFF ICER OF THE ASSESSEE IS IN POSSESSION OF THE SEIZED DOCUMENTS IN HIS CAPACITY AS THE LEARNED ASSESSING OFFICER OF THE PERSON OTHER THAN THE SEAR CHED PERSON ON 10/3/2010, THE PENDING ASSESSMENT STANDS ABATED AND THE ASSESSING OFFICER SHOULD HAVE RECORDED SATISFACTION AND ISSUE D NOTICE UNDER SECTION 153C OF THE ACT. LEARNED ASSESSING OFFICER EVEN AFT ER RESUMING POSSESSION OF THE DOCUMENTS IN HIS CAPACITY AS THE LEARNED ASS ESSING OFFICER OF THE PERSON OTHER THAN THE SEARCHED PERSON PROCEEDED TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND FRAMED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. 19. IN SSP AVIATION (SUPRA) IT WAS HELD THAT IN THE CASE OF THE OTHER PERSON, THE QUESTION OF BOTH THE PENDENCY AND ABATE MENT OF PROCEEDINGS OF ASSESSMENT OR REASSESSMENT WOULD BE EXAMINED WIT H REFERENCE TO THE DATE OF HANDING OVER OF THE BOOKS OF ACCOUNTS OR DO CUMENTS TO LEARNED ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON. THIS DECISION 12 IS FOLLOWED BY THE HONBLE JURISDICTIONAL HIGH COUR T IN THE CASES OF CIT VS. JASJEET SINGH ITA NO. 337/2015 AND BHUPINDER PAL SI NGH IN ITA NO. 772 OF 2015. IN TERMS OF THE DECISIONS IN KABUL CHAWLA (SU PRA) AND RRJ SECURITIES (2015) 62 TAXMANN.COM 391 (DELHI), THE COMPLETED AS SESSMENTS AS ON THE DATE OF SUCH ASSUMPTION OF JURISDICTION CANNOT BE R EASSESSED UNDER SECTION 153C OF THE ACT IN THE ABSENCE OF ANY INCRI MINATING MATERIAL BELONGING TO THE PERSON OTHER THAN THE SEARCHED PER SON WHEREAS ALL THE PENDING ASSESSMENTS STAND ABATED AND SHALL BE PROCE EDED UNDER SECTION 153A OF THE ACT OR 153C OF THE ACT, AS THE CASE MAY BE. 20. IN THIS FACTUAL AS WELL AS LEGAL POSITION, WE A RE UNABLE TO FIND ANYTHING ILLEGALITY OR IRREGULARITY COMMITTED BY TH E LD. CIT(A) IN HOLDING THAT FOR THE ASSESSMENT YEAR 2009-10 ALSO THE ASSES SING OFFICER SHOULD HAVE RECORDED SATISFACTION AND AFTER ISSUING NOTICE UNDER SECTION 153C OF THE ACT SHOULD HAVE FRAMED THE ASSESSMENT, AND THE PROCEDURAL LAPSE IN THIS MATTER GOES TO THE ROOT OF THE MATTER AND VITI ATES THE PROCEEDINGS. ORDER OF THE LD. CIT(A) FOR ASSESSMENT YEAR 2009-10 DOES NOT SUFFER ANY ILLEGALITY OR IRREGULARITY AND, THEREFORE, WE UPHOL D THE SAME AND DISMISS THE GROUNDS OF APPEAL OF THE REVENUE. 21. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JANUARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (K.NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 21/01/2020 . AKS