M/s. Lairy Distributors Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 6947/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7255 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus Share capital; Gift; Income from undisclosed sources; Search and seizure; Document seized; Share purchase agreement; Opportunity of being heard; Principle of natural justice; Period of limitation; Additional evidence; Question of law; Tangible material; Validity of assessment; Accommodation entries; Assessment record; Block assessment; Right to appeal; Time period of passing order; Documents seized; Reassessment proceedings
• Section: 143(3); 142(1); 153A; 260A; 115JB; 133(6); 147; 263; 132; 12

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI ` A BENCH , NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , AND SHRI L.P. SAHU , ACCOUNTANT MEMBER I.T.A. NO. 69 47 /DEL/201 4 ASSESSMENT YEAR : 200 6 - 0 7 M/S LAIRY DISTRIBUTORS PVT. LTD VS. THE DY. C.I.T A - 15, ASHOK VIHAR, PHASE 1 CENTRAL CIRCLE - 03 NEW DELHI NEW DELHI PAN: A ABCL 1152 E I.T.A.NO. 7060 /DEL/201 4 ASSESSMENT YEAR : 200 7 - 08 M/S SUNNY INFRA PROJECTS LTD VS. THE CI T(A) - XXVI A - 15, ASHOK VIHAR, PHASE 1 DELHI DELHI PAN: AAECS 3929 B I.T.A. NO. 6948 /DEL/201 4 ASSESSMENT YEAR : 20 07 - 08 M/S BALRAM VINIMAY PVT. LTD VS. THE DY. C.I.T A - 15, ASHOK VIHAR, PHASE 1 CENTRAL CIRCLE - 03 NEW DELHI NEW DELHI PAN: AACCB 7057 R I.T.A. NO. 7061/DEL/2014 ASSESSMENT YEAR : 20 10 - 11 M/S SUNNY INFRA PROJECTS LTD VS. THE C.I.T(A) - XXVI A - 15, ASHOK VIHAR, PHASE 1 NEW DELHI NEW DELHI PAN: A AECS 3929 B (APPELLANT) (RESPONDENT) 2 ASSESSEE BY : SHRI SALIL AGGARWAL, ADV SHRI SHAILESH GUPTA, ADV DEPARTMENT BY : SHRI RAMESH CHANDRA, CIT - DR SHRI RAVI JAIN, CIT - DR DATE OF HEARING : 30 - 10 - 201 5 DATE OF PRONOUNCEMENT : 27 - 01 - 201 6 O R D E R PER CHANDRA MOHAN GARG, J.M. THE ABOVE CAPTIONED APPEALS BY DIFFERENT ASSESSEE S HAVE BEEN HEARD TOGETHER AND DIRECT ED AGAINST THE SEPARATE ORDER S OF THE LD. CIT(A) FOR A.YS. 2006 - 07, 2007 - 08, 2007 - 08 AND 2010 - 11 RESPECTIVELY. WE MAY POINT OUT THAT THESE APPEALS ARE RELATED TO SEARCH AND SEIZURE OPERATIONS CARRIED OUT ON MIND A GROUP ON 10.01.2012 . THE APPELLANTS ARE CHALLENGING THE ACTION OF THE AO INITIATING THE PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE INCOME - TAX ACT, 1961 [ THE ACT FOR SHORT]. EXCEPT IN APPEAL NO. 7061/DEL/2014 FOR A.Y 2010 - 11 , THE FACTS, LEGAL OBJECTIONS/CONTENTIONS OF THE ASSESSEE IN OTHER THREE APPEALS, ARE SIMILAR . IN ITA NO. 7061/DEL/2014, THE ASSESSEE HAS ALSO CHALLENGED THE VALIDITY OF NOTICE AND ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT. THEREFORE, THESE APPEALS HAVE BEEN CLUB BED TOGETHER AND BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3 ITA NO. 6947/DEL/2014 [ A.Y 2006 - 07 ] 2. WE SHALL NOW TAKE UP APPEAL IN ITA NO. 6947/DEL/2014 SINCE BOTH THE PARTIES AGREED THAT THIS APPEAL MAY BE TA KEN UP FOR HEARING FIRST. THE ABOVE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - II , NEW DELHI DATED 2 0 . 1 0 .20 14 IN APPEAL NO. 1 11 / 14 - 15 FOR A.Y. 200 6 - 0 7. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED CO MM ISSIONER OF INCOME TAX (A) IS ARBITRARY, AGAINST LAW AND FACTS ON RECORD. 2. THE LEARNED COMMISSIONER OF INCOME TAX (A) BEFORE DISMISSING THE APPEAL HAS NOT GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD WHICH IS AGAINST THE PRINCIPLE OF NA TURAL JUSTICE AND IS BAD IN LAW AND HENCE LIABLE TO BE QUASHED 3. THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS FAILED TO APPRECIATE THAT THE ISSUANCE OF NOTICES U/S 153C / 142(1)/143(2) OF THE INCOME TAX ACT, 1961 AS WELL AS THE PROCEEDINGS CONDUCTED THE RE UNDER IS BAD IN LAW AND IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE DISMISSING THE APPEAL AND CONFIRMING THE ADDITION IN RESPECT OF SHARE CAPITAL OF RS 10, 21, 00,000/ - HAS FAILED TO CONSIDER T HE 4 FACT THAT DURING THE COURSE OF SEARCH NO INCRIMINATING DOCUMENTS IN RESPECT OF SHARE CAPITAL HAVE BEEN FOUND AND THE PROCEEDINGS IN THIS CASE HAS ALREADY BEEN COMPLETED U/S 143(3) OF THE I.T. ACT VIDE ORDER DATED 26.12.08 BY INCOME TAX OFFICER, WARD 1(4 ), KOLKATA . 5. THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE DISMISSING THE APPEAL HAS FAILED TO APPRECIATE THE FACT THAT ALL THE DOCUMENTARY EVIDENCE TO PROVE THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF THE AMOUNT OF SHARE CAPITAL HAVE BEEN SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDING AND THE INVESTOR COMPANIES HAVE FILED ALL THE DETAILS CALLED FOR BY THE ASSESSING OFFICER. 6. THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS FAILED TO APPRECIATE THE FACT THAT THE ADDITION MADE BY THE AS SESSING OFFICER HAS BEEN MADE SIMPLY ON THE BASIS OF SUSPICION, ASSUMPTION, SURMISES, & CONJECTURES AND WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD. 7. THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS FAILED TO CONSIDER THE FACT THAT IN THE STATEMENT OF S ANTOSH KUMAR JAIN (QUOTED IN THE ASSESSMENT ORDER) NOTHING HAS BEEN STATED WITH RESPECT TO THE ASSESSEE COMPANY AND THE ASSESSING OFFICER WHILE PASSING THE ORDER HAS MISINTERPRETED THE STATEMENT OF SHRI ASHOK KUMAR MINDA 8. THE LEARNED COMMISSIONER OF INCO ME TAX (A) HAS FAILED TO APPRECIATE THE FACT THAT DURING THE RE - ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS NEITHER BROUGHT ANY MATERIAL, 5 STATEMENT OR OUTCOME OF ANY ENQUIRY RELATING TO MR. SANTOSH KUMAR JAIN TO THE KNOWLEDGE OF THE ASSESSEE NOR PROVI DED ANY OPPORTUNITY TO CO NFR ONT WITH THE SAME 9. THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS FAILED TO CONSIDER THE FACT THAT THE STATEMENT OF SHRI SANTOSH KUMAR JAIN (RECORDED ON 10/01/2012) RELIED UPON BY THE ASSESSING OFFICER WHILE MAKING THE ADDITI ON WAS RETRACTED BY SHRI SANTOSH KUMAR JAIN AND THIS FACT WERE ALSO QUOTED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER 10. THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS NOT CONSIDERED THE FACT THAT THE ALLEGED INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER IN RESPECT OF SHAREHOLDERS WERE CARRIED OUT ON THE BACK OF THE ASSESSEE WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD (IF ANY COLLECTED) AND WITHOUT PROVIDING AN OPPORTUNITY TO CONFRONT THE SAME. 11. THE LEARNED COMMISSIONER OF INCOM E TAX (A) WHILE DISMISSING THE APPEAL HAS ERRED IN CONSIDERING THE FACT THAT THE PARTIES DID NOT APPEAR FOR PERSONAL DEPOSITION BEFORE THE ASSESSING OFFICER WHICH IS CLEARLY AGAINST THE FACT AS NO PERSONAL DEPOSITION WERE CALLED FOR BY THE ASSESSING OFFICE R BY ISSUE OF NOTICE U/S 133(6) OF THE INCOME TAX ACT 12. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF LEARNED ASSESSING OFFICER IN 6 MAKING AN ADDITION OF RS 5, 10,500/ - ON ACCOUNT OF ALLEGED COMMISSION . 4. IT IS RELEVANT TO NOTE THAT GROUND NOS . 2 AND 3 OF THE ASSESSEES IN THE APPEALS BEARING ITA NO. 7060/DEL/2014 AND ITA NO. 6948/DEL/2014 CHALLENG ING THE VALIDITY OF INITIATION OF PROCEEDINGS AND ASSUMPTION OF JURISD I CT I ON FOR INITIATION OF PROCEEDIN G S U/S 153C OF THE ACT AND LEGAL GROUND NOS. 2 AND 3 RAISED BY THE ASSESSEE IN ITA NO. 6947/DEL/2014 ARE SAME AND SIMILAR. THEREFORE , THESE LEGAL GROUNDS IN ALL THE SAID THREE APPEALS ARE BEING TAK EN UP FOR DISPOSAL TOGETHER FOR THE SAKE OF CONVENIENCE AND BREVITY. 5. BRIEFLY STATED, THE FACTS OF THE CASE , AS SUBMITTED BY THE LD. AR IN THE CASE OF M/S LAIRY DISTRIBUTORS PVT. LTD ARE THAT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME IN THIS CAS E ON 09.11.2006 DECLARING LOSS OF RS. 7,011/ - AND THE SAM E WAS PROCESSED U/S 143(1) OF THE ACT ON 10.08.2007. SUBSEQUENTLY, THE CASE WAS SELECTED FOR COMPULSORY SCRUTINY AND ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED VIDE ORDER DATED 26.12.2008 AT N IL INCOME BY DISALLOWING ENTIRE EXPENSES OF RS. 7,011/ BY DISALLOWING ENTIRE EXPENSES OF RS. 7,011/ - . THE LD. A.R. FURTHER SUBMITTED THAT SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT IN THIS CASE WAS CARRIED OUT ON 10.1.2012 AT THE BUSINESS AS WELL AS 7 RESIDENTIAL PREMISES OF MINDA GROUP IN A.Y 2012 - 13. ALL SUBSEQUENT PROCEEDINGS WERE CONDUCTED THEREIN U/S 153A OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT IN THE CASE OF THE PRESENT APPELLANT, I.E. LAIRY DISTRIBUTORS PVT. LTD, SATISFACTION NOTE WAS RECORDED ON 09.09.2013 IN A.Y 201 4 - 15, WHICH IS AVAILABLE AT PAGE 13 OF ASSESSEE S RELEVANT PAPER BOOK AND NOTICE U/S 153C OF THE ACT WAS ISSUED AGAINST THE ASSESSEE ON 09.09.2013 CALLING FOR THE RETURN OF INCOME AND IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED ITS RETURN ON02.11.2 013 AND ASSESSMENT WAS FRAMED U/S 143(3) R.W.S 153C OF THE ACT ON 13.3.2014. AFTER NARRATING THE AFORENOTED FACTS, THE LD. AR SUBMITTED THE FIRST PROPOSITION THAT THE NOTICE ISSUED AGAINST THE ASSESSEE U/S 153C OF THE ACT DATED 09.09.2013 IS BAD IN LAW AN D BEYOND THE LIMITATION PERIOD AS PRESCRIBED BY CLAUSE (B) OF SUB - SECTION (1) OF SECTION 153A OF THE ACT. THE LD. AR VEHEMENTLY PLACED HIS RELIANCE ON THE JUDGMENTS/ORDERS OF THE HON'BLE JURISDICTIONAL HIGH COURT AT DELHI AND CO - ORDINATE BENCH OF ITAT DEL HI AND GUWAHATI WHICH ARE LISTED BELOW: (I) CIT VS. JASJIT SINGH ITA NO. 337/2015 [DEL] (II) CIT VS. JASJIT SINGH ITA NO. 1436/2012 [DEL] (III) DSL PROPERTIES P. LTD VS. D CIT 60 SOT 88 [URO] (IV) R.L. ALLIED INDS. VS. ITO 167 TTJ 20 [ITAT, DELHI] (V) CHAIN ROOP BAID VS. ACIT 154 ITD 257 [GAU] (VI) SSP AVIATION LTD VS. DCIT 346 ITR 17 [DEL] 8 6. THE LD. AR FURTHER DREW OUR ATTENTION TOWARD THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. JASJIT SINGH [SUPRA] AND SUBMITTED THAT REFERRING TO ITS OWN DECISION IN THE CASE OF SSP AVIATION LTD REPORTED A S 346 ITR 177 [DEL] THEIR LORDSHIPS EXPLICITLY HELD THAT THE DATE WITH REFERENCE TO WHICH PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF ANY ASSESSMENT YEAR WITHIN THE PE RIOD OF SIX A.YS SHALL ABATE SHALL BE THE DATE OF INITIATION OF THE SEARCH U/S 132 OF THE ACT OR THE REQUISITION U/S 132A IN THE CAS ES OF THE OTHER PERSON [LIKE THE ASSESSEE IN THE PRESENT CASE], SUCH DATE WI L L THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. THE LD. AR VEHEMENTLY POINTED OUT THAT THEIR LORDSHIPS IN THESE CASES EXPLICITLY HELD THAT IN THE CASE OF OTHER PE R SON, THE QUESTION OF ABATEMENT OF THE PE NDING ASSESSMENT PROCEEDINGS AND COMPLETED AND THEIR ASSESSMENT OR REASSESSMENT OF THE SIX A.YS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE ON WHICH SATISFACTION NOTE FOR INITIATION OF PROCEEDINGS U/S 153C HAS BEEN RECORDED AND NOTICE U/S 153C OF THE ACT HAS BEEN ISSUED IN PURSUANCE THERETO. 7. THE LD. AR FURTHER PLACED SECOND PROPOSITION THAT THE DOCUMENTS AS MENTIONED IN THE SATISFACTION NOTE AVAILABLE AT PAGE 13 OF ASSESSEE S 9 PAPER BOOK ARE DOC UMENTS NOT RELATED TO A.Y 2006 - 07. THESE ARE NOT INCRIMI NATING AND CANNOT BE TAKEN AS BASIS FOR RECORDING A VALID SATISFACTION AND INITIATING PROCEEDINGS U/S 153C OF THE ACT AND FOR MAKING VALID AND SUSTAINABLE ADDITIONS FOR A.Y 2006 - 07 . THE LD. AR HA S FURTHER DRAWN OUT ATTENTION TOWARDS JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SSP AVIATION LTD [SUPRA] AND THE JUDGMENTS/ORDER OF ITAT CO - ORDINATE BENCHES AND SUBMITTED THAT ALLEGED INCRIMINATING MATERIAL SEIZED AND STATED TO BE PERTAIN ING TO ALL SIX A.YS DID NOT ESTABLISH ANY CO - RELATION OF DOCUMENTS W ITH THE A.YS IN QUESTION, UNDER THESE CIRCUMSTANCES, THE GENERAL SATISFACTION, AS RECORDED IN THE SATISFACTION NOTE IS NOT ENOUGH AND IN THIS SITUATION, ORDER PASSED BY THE AO U/S 143(3) R.W.S 153C OF THE ACT SHOULD BE QUASHED. TO SUPPORT THIS PROPOSITION, THE LD. AR ALSO PLACED RELIANCE ON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SINGHAD TECHNICAL EDUCATION SOCIETY REPORTED AT 120 DTR 79 [BOM]. 8 . THE LD. COUNSEL FOR THE ASSESSEE ALSO PLACED THIRD PROPOSITION AND SUBMITTED THAT THE DOCUMENTS LISTED AND MENTIONED IN THE SATISFACTION NOTE DATED 09.09.2013 DO NOT BELONG TO THE ASSESSEE AS THESE ARE PHOTOCOPIES OF FINANCIAL STATEMENTS, BALANCE SHEET AND TRIAL BALANCE SHE ET ET C , WHICH CANNOT BE HELD A BELONGING TO THE ASSESSEE. THE LD. 10 AR SUPPORTED THIS PROPOSITION BY THE JUDGMENTS/ ORDERS THE HON'BLE JURISDICTIONAL HIGH COURT AND THE TRIBUNAL AND OUR ATTENTION HAS BEEN DRAWN TO THE RATIO OF THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PEPSICO INDIA HOLDING [PVT] LTD VS. ACIT REPORTED IN 370 ITR 295 [DEL]. THE LD. AR HAS FURNISHED WRITTEN SUBMISSIONS IN WHICH HE HAS RELIED ON THE FOLLOWING PROPOSITIONS WHICH READ AS UNDER: 1. WITH RESPECT TO GROUND NOS. 3 AND 4 OF ASSESSEE S APPEAL, WHEREIN LEGAL GROUNDS HAVE BEEN TAKEN BY ASSESSEE - APPELLANT. A . FIRST PROPOSITION - ASSESSMENT BAD IN LAW AND WITHOUT JURISDICTION. (I) THAT AT THE OUTSET, THE ASSESSEE - APPELLANT BEGS TO SUBMIT THAT THE ISSUANCE OF NOTICE UNDER SECTION 153C IS WITHOUT JURISDICTION AS AY 2007 - 08 IS BEYOND THE PURVIEW FOR ISSUANCE OF NOTICE UNDER SECTION 153C.OF THE ACT. THAT ADMITTEDLY THE SATISFACTION NOTE FO R INITIATING PROCEEDINGS UNDER SECTION 153C WAS RECORDED ON 29.11.2013 AND NOTICE UNDER SECTION 153C WAS ALSO ISSUED ON 29.11.2013. THUS, THE SEIZED PAPER WAS ALSO HANDED OVER BY THE AO OF THE SEARCHED PERSON (MINDA GROUP) TO THE AO OF SUCH OTHER PERSON (A SSESSEE) ON THE SAME DATE I.E. 29.11.2013. (II) THAT ON A PERUSAL TO PROVISIONS OF SECTION 153C OF THE ACT AND MORE SPECIFICALLY PROVISO TO SECTION 153C OF THE ACT, IT WOULD BECOME EVIDENT THAT THE DATE OF SEARCH IS TO BE 11 SUBSTITUTED BY THE DATE OF RECEIV ING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED FOR THE PURPOSES OF FRAMING OF ASSESSMENTS UNDER SECTION 153C OF THE ACT. ACCORDINGLY, THE ASSESSMENTS CAN BE FRAMED FOR THE PRECEDING SIX YEARS WITH REFERENCE TO DATE 29.11.2013 I.E. AY 2008 - 09 TO AY 2013 - 14. WHEREAS, THE LEARNED AO HAS FRAMED ASSESSMENTS FOR AY 2006 - 07 TO 2011 - 12 UNDER SECTION 153C OF THE ACT, WHICH MEANS. AY 2006 - 07 AND 2007 - 08 ARE CLEARLY WITHOUT JURISDICTION AND BEYOND THE PURVIEW OF SECTION 153C OF THE ACT. IN ORDER TO APPRECIATE THE AFORESAID, THE PROVISO TO SECTION 153C (AS STOOD ON THE DATE OF ASSESSMENT) IS EXTRACTED, HEREUNDER, FOR READY REFERENCE: 'PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE 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] SECTION 153A SHALL BE CONSTRUED AS REFERENCE 'TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDIC TION OVER SUCH OTHER PERSON:].' (III) THE ABOVE PROVISO REFERS TO SECOND PROVISO TO SUB - SECTION (1) OF SECTION 153A. THAT SECTION 153A(1) AND ITS FIRST AND SECOND PROVISOS READ AS UNDER: - '153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS I NITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER 12 DOCUMENTS OR ANY ASSETS AR E REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL - ( A ) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMEN T YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY A CCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; ( B ) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS - IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED O R REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASS ESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS [SUB - SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE:.' ( IV ) FROM THE ABOVE, IT WOULD BECOME EVIDENT THAT AS PER CLAUSE (B) OF SUB SECTION (1) OF SECTION 153A AND SECOND PROVISO, THE ASSESSING OFFICER CAN ISSUE NOTICE FOR ASSESSMENT OR 13 REASSESSMENT OF TOTAL SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT Y EAR RELEVANT TO PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED. FURTHER, AS PER PROVISO TO SECTION 153C. THE DATE OF SEARCH IS TO BE SUBSTITUTED BY THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON . SINCE IN THIS CASE SATISFACTION IS RECORDED ON 29.11.2013 AND NOTICE UNDER SECTION 153C IS ALSO ISSUED ON THE SAME DATE, THEN ONLY CONCLUSION THAT CAN BE DRAWN IS THAT THE ASSESSING OFFICER OF SUCH OTHER PERSON HAS TAKE N OVER THE POSSESSION OF SEIZED DOCUMENT ON 29.11.2013. ACCORDINGLY, AS PER SECTION 153A(1), THE ASSESSING OFFICER CAN ISSUE THE NOTICE U/S 143(3) FOR THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED (I.E. FOR THE PURPOSE OF SECTION 153C THE DOCUMENT IS HAND ED OVER) AND NOTICE U/S 153C FOR SIX ASSESSMENT YEARS PRECEDING SUCH ASSESSMENT YEARS. NOW, IN THIS CASE, THE PREVIOUS YEAR IN WHICH THE DOCUMENT IS HANDED OVER IS 1ST APRIL, 2013 TO 31ST MARCH, 2014 I.E. THE ASSESSMENT YEAR WOULD BE AY 2014 - 15. SIX PRECED ING PREVIOUS YEARS AND RELEVANT ASSESSMENT YEAR WOULD BE AS UNDER : - PREVIOUS YEAR ASSESSMENT YEAR 1 . 4 . 2007 TO 31.3.2008 1 . 4 . 2008 TO 31.3.2009 1 . 4 . 2009 TO 31.3.2010 1.4.20J0 TO 31.3.2011 1.4.2011 TO 31.3.2012 1.4.2013 TO 31.03.2014 2013 - 14 20 08 - 09 2010 - 11 2009 - 10 201 1 - 1 2 201 2 - 1 3 14 ( V ) THAT, THE SAME VIEW HAS ALSO BEEN UPHELD BY HON BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS JASJIT SINGH IN ITA NO. 337/2015 (EMPHASIS SUPPLIED) AND VARIOUS BENCHES OF TRIBUNAL, A COPY OF SAME HAVE BEEN PLACED BY ASSESSEE - APPELLANT IN ITS PB - III AT S. NOS. 1 TO 6, HOWEVER, FOR THE SAKE OF BREVITY, THE SAME ARE EXTRACTED BELOW: ( VI ) THUS, IT IS MOST HUMBLY SUBMITTED THAT THE LEARNED ASSESSING OFFICER HAS WRONGLY ISSUED NOTICE UNDER SECTION 153C OF THE ACT FOR AY 2007 - 08 WHICH IS CLEARLY WITHOUT JURISDICTION BEYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT. THEREFORE, ISSUANCE OF NOTICE - UNDER SECTION 153C ISSUED BY THE LEARNED AO SR. NO. PARTICULARS PAGE NOS OF PB - III. 1. COPY OF JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS SH. JASJIT SINGH IN ITA NO. 337/2015. 1 - 4 2. COPY OF ORDER OF HON BLE IT AT DELHI IN THE CASE OF SH. JASJIT SINGH VS ACIT IN ITA NO. 1436/DEL/2012. 5 - 16 3. COPY OF ORDER OF HON BLE ITA T DELHI IN THE CASE OF DSL PROPERTIES (P) LTD. VS DCIT REPORTED IN 60 SOT 88 (URO). 17 - 27 4. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF R.L. ALLIED INDUSTRIES VS ITO REPORTED IN 167 TTJ 20. 28 - 32 5 . COPY OF ORDER OF HON BLE ITA T GAUHATI THE CASE OF CHAIN ROOP PAID VS ACIT REPORTED IN 154ITD 257. 32A - 32D 6. COPY OF JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF SSP AVIATION LTD. VS DCIT REPORTED IN 346 ITR 177. 33 - 45 15 CANNOT BE SUSTAINED IN VIEW OF THE AFORESAID JUDGMENTS, MORE SPECIFICALLY OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS JASJIT SINGH IN ITA NO. 337/2015 AND THUS, THE IMPUGNED NOTICE BEING WITHOUT JURISDICTION NEEDS TO BE QUASHED AND CONSEQUENTLY, THE ASSESSMENT COMPLETED IN PURSUANCE TO SUCH NOTICE, DESERVED TO BE QUASHED, AS WELL. B . SECOND PROPOSITION - ADDITIONS MADE ARE BEYOND THE SCOPE OF ASSESSMENT, AS NO ADDITION IS MADE ON THE BASIS OF SEIZED DOCUMENTS RECORDED IN SATISFACTION NOTE. (I) THAT WITHOUT PREJUDICE TO ABOVE, THE ASSESSEE APPELLANT WOULD SEEK TO SUBMIT THAT A BARE PERUSAL OF SATISFACTION NOTE RECORDED ON 29.11.2013 (KINDLY SEE PAGE C OF THIS NOTE), WOULD MAKE IT AMPLY CLEAR THAT THE DOCUMENTS RECORDED THEREIN, PERTAIN TO AY 2011 - 12 AND 2012 - 13. AND NO DOCUMENT - PERTAINING TO IMPUGNED AY 2007 - 08 WAS FOUND FRO M THE SEARCHED PERSON AND FURTHERMORE, ASSESSMENT FOR IMPUGNED AY 2007 - 08 WAS ALREADY CONCLUDED UNDER SECTION 143(3) OF THE ACT AND THAT TOO AFTER DETAILED VERIFICATION AND ENQUIRIES WITH RESPECT TO THE ISSUE OF SHARE CAPITAL AND SHARE PREMIUM (KINDLY SEE PGS A TO B OF THIS BRIEF NOTE) AND AS SUCH, NOTHING WAS PENDING OR NOTHING WILL ABATE, ON THE DATE OF HANDING OVER OF THE DOCUMENTS BY THE AO OF THE SEARCHED PERSON TO THE AO OF THE ASSESSEE - APPELLANT AND THUS, THE AO WAS NOT EMPOWERED IN LAW TO TINKER W ITH THE COMPLETED ASSESSMENTS AND FURTHER, TO MAKE ADDITIONS BEYOND THE SEIZED/ INCRIMINATING MATERIAL AS REFERRED IN THE SATISFACTION NOTE. 16 (I I ) THAT FURTHER, EVEN FOR ASSESSMENTS FOR AY 2011 - 12 AND 2012 - 13 (KINDLY SEE PAGES E TO F AND G TO J OF THIS NOTE ), NO ADDITIONS HAVE BEEN MADE WITH REFERENCE TO THE DOCUMENTS SO REFERRED IN THE SATISFACTION NOTE, WHICH ARE COPIES OF TRIAL BALANCES AND BALANCE SHEETS (FOUND TO BE DULY RECORDED IN BOOKS OF ACCOUNTS) AND AS SUCH, THE ADDITIONS MADE UNDER PROCEEDINGS') U/S 153C OF THE ACT WAS NOT VALIDLY MADE, AS NO DOCUMENT PERTAINING TO 2007 - 08 WAS FOUND FROM THE PREMISES OF SEARCHED PERSON, NOR THE SAME WAS MADE A BASIS IN THE SATISFACTION NOTE. THAT IN ORDER TO SUPPORT THE AFORESAID, THE ASSESSEE - APPELLANT WOULD SEEK TO PLACE ITS RELIANCE ON FOLLOWING JUDGMENTS, WHEREIN, IT HAS BEEN HELD THAT, IN RESPECT OF COMPLETED ASSESSMENTS, THE AO IS ONLY EMPOWERED TO MAKE ADDITIONS WITH RESPECT TO DOCUMENTS RECORDED IN THE SATISFACTION NOTE AND NO FURTHER, ADDITION CAN BE MADE BY AO , THE SAID JUDGMENTS HAVE BEEN PROVIDED IN PAPER BOOK - III AT S. NOS. 6, 8 TO 15: 17 S.NO . JUDGMENTS PG NOS. OF PB - 6. COPY OF JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF SSP AVIATION LTD. VS DCIT REPORTED IN 346 33 - 45 ' 8. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF M/S BRIGHTWAYS HOUSING & LAND DEVELOPERS LTD. IN ITA NO. 5117, 5118/DEL/2013. 53A - 53J 9. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF M/S DEVI DAYAL PETRO CHEMICALS PVT. LTD VS DCIT IN ITA NO. 5435, 5436/DEL/2013. 53K - 53U 10. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF N ATURAL PRODUCTS BIO TECH LTD. V DCIT REPORTED IN 153 ITD 58. 54 - 65 11. COPY OF ORDER OF HON BLE ITAT PANAJI IN THE CASE OF SMT. SUNITA BAI VS DCIT REPORTED IN 68 SOT 98 (URO). 66 - 75 12. COPY OF ORDER OF HON BLE ITAT PANAJI IN THE CASE OF SMT. LAKSHMI SINGH VS DCIT REPORTED IN 68 SOT 26 (URO). 76 - 85 13. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF DCIT VS QUALITRON COMMODITIES (P) LTD. REPORTED IN 167 86 - 91 14. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF TANVIR COLLECTIONS (P) LTD. VS ACIT REPORTED IN 168 TTJ 145. 92 - 99 15. COPY OF ORDER OF HON BLE ITAT JAIPUR IN THE CASE OF SATYAM FOOD SPECIALITIES (P) LTD VS DCIT REPORTED IN 68 SOT 449. 100 - 122 18 I V) THUS, IT IS MOST HUMBLY PRAYED THAT, SINCE THE ASSESSMENTS WERE ALREADY COMPLETED IN THE CASE OF ASSESSEE - APPELLANT AND NOTHING WAS PENDING ON THE DATE OF HANDING OVER OF THE DOCUMENTS AND THUS, ADDITIONS MADE BY LEARNED AO IS BEYOND THE SCO PE AS ENVISAGED UNDER SECTION 153C OF THE ACT, AND THUS, THE ASSESSMENT NEEDS BE QUASHED AND ADDITIONS MADE THEREIN NEEDS TO BE DELETED. C. THIRD PROPOSITION - NOTICE ISSUED UNDER SECTION 153C OF THE ACT AND ASSESSMENT FRAMED THEREAFTER, IS BAD IN LAW, AS NO DOCUMENT BELONGING TO THE ASSESSEE - APPELLANT WAS FOUND FROM THE PREMISES OF SEARCHED PERSON. (I) HERE, IT IS MOST HUMBLY SUBMITTED THAT, IT IS NECESSARY THAT BEFORE THE PROVISIONS OF SECTION 153C OF THE ACT CAN BE INVOKED, THE ASSESSING OFFICER OF THE SEARCHED PERSON MUST BE SATISFIED THAT THE SEIZED MATERIAL (WHICH INCLUDES DOCUMENTS) DOES NOT BELONG TO THE PERSON REFERRED TO IN SECTION 153A (I.E.. THE SEARCHED PERSON). IN THE IMPUGNED SATISFACTION NOTE, THERE IS NOTHING THEREIN TO INDICATE THAT TH E SEIZED DOCUMENTS DO NOT BELONG TO THE MINDA GROUP AND MERE FINDING OF PHOTOCOPIES IN THE POSSESSION OF A SEARCHED PERSON DOES NOT NECESSARILY MEAN AND IMPLY THAT THEY 'BELONG' TO THE PERSON WHO HOLDS THE ORIGINALS OR IN WHOSE NAME THEY PERTAIN . POSSESSIO N OF DOCUMENTS AND POSSESSION OF PHOTOCOPIES OF DOCUMENTS ARE TWO SEPARATE THINGS. WHILE THE MINDA GROUP MAY BE THE OWNER OF THE PHOTOCOPIES BUT IT DOES NOT GET ESTABLISHED THAT THE SAME BELONG TO THE ASSESSEE - APPELLANT. UNLESS IT IS ESTABLISHED THAT THE DOCUMENTS IN QUESTION, WHETHER THEY BE PHOTOCOPIES OR 19 ORIGINALS, DO NOT BELONG TO THE SEARCHED PERSON, THE QUESTION OF INVOKING SECTION 153C OF THE SAID ACT DOES NOT ARISE AND VARIOUS COURTS HAVE QUASHED THE PROCEEDINGS INITIATED UNDER SECTION 153C OF THE ACT ON THIS PROPOSITION, AND THE ASSESSEE - APPELLANT ALSO SEEKS TO PLACE RELIANCE ON JUDGMENTS AS FILED IN PAPER BOOK - III AND ARE EXTRACTED BELOW FOR READY REFE RENC E: IN VIEW OF THE FOREGOING DISCUSSION, IT IS MOST RESPECTFULLY SUBMITTED THAT PRECONDITIONS FOR ISSUANCE OF NOTICE SECTION 153C OF THE SAID ACT HAVE NOT BEEN SATISFIED IN THE INSTANT CASE, AS NO DOCUMENT BELONGING TO THE ASSESSEE - APPELLANT S.NO . JUDGMENTS PG NOS. OF PB - III 3. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF DSL PROPERTIES (P) LTD. VS DCIT REPORTED IN 60 SOT 88 (URO). 17 - 27 7. COPY OF JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF PEPSICO INDIA HOLDINGS (P) LTD. VS ACIT REPORTED IN 370 ITR 295. 46 - 53 10. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF NATURAL PRODUCTS BIO TECH LTD. VA DCIT REPORTED IN 153ITD58. 54 - 65 13. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF DCIT VS QUALITRON COMMODITIES (P) LTD. REPORTED IN 167 TTJ 553. 86 - 91 15. COPY OF ORDER OF HON BLE ITAT JAIPUR IN THE CASE OF SATYAM FOOD SPECIALITIES (P) LTD VS DCIT REPORTED IN 68 SOT 449. 1 00 - 122 20 HAVE BEEN FOUND FROM THE PREMISES OF SEARCHED PERSON I.E. MINDA GROUP AND CONSEQUENTLY, THE NOTICE DATED 29.11.2013 ISSUED UNDER SECTION 153C OF THE ACT DESERVES TO BE QUASHED AND ACCORDINGLY, ALL PROCEEDINGS PURSUANT THERETO SHOULD ALSO BE QUASHED. III HERE IT IS SUBMIT TED THAT ONCE THE JURISDICTIONAL ISSUE HAS BEEN ARGUED AND HEARD BY THE HON BLE TRIBUNAL, THERE IS NO REQUIREMENT/NECESSITY TO DECIDE THE OTHER ISSUES ON MERITS, AS HAD ALSO BEEN HELD BY HON BLE 1TAT SPECIAL BENCH NAGPUR IN THE CASE OF RAHUL KUMAR BAJAJ VS ITO REPORTED IN 69 ITD 1. IF HOWEVER, THE HON BLE BENCH IS OF THE VIEW, THAT THE APPEAL OF THE ASSESSEE NEEDS TO BE DECIDED ON MERITS, THEN, IN THAT CASE AN OPPORTUNITY OF HEARING MAY BE GRANTED TO THE ASSESSEE - APPELLANT AND THE CASE OF THE ASSESSEE - APPELLANT BE HEARD ON MERITS. 9. IT IS RELEVANT AND PERTINENT TO MENTION THAT DURING THE ARGUMENTS OF THE ASSESSEE, SHRI RAVI JAIN, CIT - DR APPEARED AND PARTICIPATED IN THE HEARING AND AT THE FAG END OF THE ARGUMENTS OF THE REVENUE , SHR I RAMESH CHAND, CIT - DR ENTERED AND ASSISTED SHRI RAVI JAIN, CIT - DR. ON BEHALF OF THE REVENUE, THE LD CIT - DR SHRI RAMESH CHANDRA, PLACING RELIANCE ON THE DECISION OF THE FULL BENCH OF HON'BLE GUWAHATI HIGH COURT IN THE CASE OF SMT. SOHANI DEVI JAIN VS. ITO REPORTED AT 109 ITR 130 [FB] [GAU] SUBMITTED THAT WHEN NO OBJECTION REGARDING VALIDITY OF 21 ASSESSMENT HAS BEEN RAISED OR TAKEN BEFORE THE ITO, THEN THIS LEGAL OBJECTION CANNOT BE RAISED SUBSEQUENTLY IN THE APPELLATE PROCEEDINGS. THE LD. DR FURTHER PLACING RELIANCE ON THE JUDGMENT OF THE PATNA HON'BLE HIGH COURT IN THE CASE OF RAJA BAHADUR KAMAKHYA NARAIN SINGH [PATNA] VS. UOI 51 ITR 596 SUBMIT T ED THAT WHILE THE ASSESSEE IS NOT RAISING ANY GROUND, CHALLENGING THE VALID ASSUMPTION OF JURISDICTION AND NOT RAI SING THE GROUND DIRECTLY DURING ASSESSMENT OR REASSESSMENT PROCEEDINGS, THEN IT HAS TO BE PRESUMED THAT THE ASSESSEE HAS WAIVED HIS RIGHT TO CHALLENGE THE VALIDITY OF ASSUMPTION OF JURISDICTION FOR ASSESSMENT OR REASSESSMENT. 10. THE LD. CIT - DR FURTHER CONTENDED THAT THE FIRST PROPOSITION ADVANCED BY THE LD. AR IS NOT TENABLE AND SUSTAINABLE IN THE LIGHT OF THIS PROPOSITION AND REFERENCE CANNOT BE MADE TO THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF SHR I JASJIT SINGH [SUPRA] BECAUSE IN THIS CASE NEITHER THE QUESTION OF LAW WAS FRAMED NOR ANSWERED. HENCE, THIS DECISION CANNOT BE TAKEN AS PRECEDENT TO BE USED IN OTHER CASES AND BENEFIT OF THIS DECISION IS NOT AVAILABLE TO THE ASSESSEE. THE LD. CIT - DR VEH EMENTLY CONTENDED THAT THE LIMITATION FOR INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT HAS TO BE TAKEN IN THE LIGHT OF THE MANDATE PROVIDED IN 22 PROVISO TO CLAUSE (B) TO SUB - SECTION (1) OF SECTION 153A OF THE ACT AND THE AO SHALL ASSE SS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH A.Y FALLING WITHIN SIX A.YS FROM THE DATE OF SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE ACT AND ALSO IN THE CA S ES OF OTHER PERSON WHEREIN THE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISIT IONED U/S 132A OF THE ACT. 11. THE LD. CIT - DR ALSO VEHEMENTLY CONTENDED THAT AS PER THE DICTA LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF K.L.MAN H AS IN WP [C] NO. 4079/2013 DATED 10.10.2013 MERE PRIMA FACIE OBSERVATION OF THE DIVISION BENCH OF THE HON'BLE HIGH COURT DOES NOT CONSTITUTE A BINDING PRECEDENT AND THUS THE SAME ARE NOT BINDING PRECEDENT. PLACING RELIANCE ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS. SURINDER KUMAR REPORTED AT 1 94 ITR 434 [SC], THE LD. CIT - DR SUBMITTED THAT THE DECISION IS BINDING ONLY WHEN QUESTION OF LAW HAS BEEN FRAMED AND DECIDED , AND O NLY PASSING REMARKS ARE NOT BINDING. THE LD. CIT - DR HAS DRAWN OUR ATTENTION TOWARDS SECOND PARA AT PAGE 437 OF THIS JUDGMENT OF THE HON'BLE APEX COURT AND SUBMITTED THAT THE DECISION IS AV AILABLE AS PRECEDENT ONLY IF IT DECIDES THE QUESTION OF LAW AND THEREFORE, THE APPELLANTS OF THE PRESENT CASE ARE NOT ENTITLED TO RELY UPON A ORDER OF 23 THE HON'BLE HIGH COURT WHICH DIRECTS A TE MPORARY EMPLOYEE TO BE REGULARISED WITHOUT ASSIGNING ANY REASONS. THE LD. CIT - DR PLACING RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT I N THE CASE OF MEHBOOB DAWOOD SHA IKH VS. STATE OF MAHARASHTRA REPORTED A S 2 SCC 362 SUBMITTED THAT MERELY PASSIN G REFERENCE OF COURT DOES NOT CONSTITUTE A BINDING EFFECT OR PRECEDENT. THE LD. CIT - DR, CHALLENGING THE RELIABILITY OF THE DOCUMENTS I.E. SATISFACTION NOTE DATED 09.09.2013, AVAILABLE AT ASSESSEE S PAPER BOOK PAGE 13, SUBMITTED THAT THIS SHOULD BE REJECTE D AS THE SAME ARE NOT CERTIFIED COPIES OF THE ASSESSMENT RECORD AND NO RELIEF TO THE ASSESSEE CAN BE GRANTED BY CONSIDERING THE SAME. 12 . THE LD. CIT - DR FURTHER SUBMITTED THAT THE ARGUMENTS OF THE LD. AR IS CHALLENGING THE VALIDITY OF THE ASSUMPTION OF JU RISDICTION AND INITIATION OF PROCEEDINGS BEYOND THE PRESCRIBED LIMITATION TIME SHOULD BE REJECTED FOR FAILURE OF THE ASSESSEE TO CHALLENGE THE ISSUE WITHIN TH E TIME PROVIDED U/S 124 OF THE ACT WHICH ARE PERTAINING TO JURISDICTION OF THE AO TO ASSESS OR RE ASSESS U/S 153A AND 153C OF THE ACT . THE LD. CIT - DR SUBMITTED THAT THE RATIO OF JUDGMENTS/ORDERS OF THE HON'BLE SUPREME COURT AND VARIOUS HON'BLE HIGH COURTS ARE ONLY BINDING WHEN THER E IS A RATIO MERELY PRIMA FACIE OBSERVATION CANNOT BE CONSIDERED AS 24 RATIO AND THE SAME CANNOT BE RELIED FOR GRANTING ANY RELIEF TO ANY PARTY. 1 3 . THE LD. CIT - DR REITERATED THE ARGUMENTS AS ADVANCED IN THE WRITTEN SUBMISSIONS AND SUBMITTED THAT FOR A.Y 2007 - 08 RELEVANT TO ITA NO. 7060/DEL/2014 AND 6948/DEL/2014 HAS TO BE R EJECTED FOR FAILURE OF THE ASSESSEE TO CHALLENGE THE JURISDICTIONAL ISSUE WITHIN THE TIME PROVIDED U/S 124 OF THE ACT RELEVANT TO JURISDICTION PROVISIONS AND ITA NO. 6947/DEL/2014 ALSO HAVE SIMILAR FACTS AND CIRCUMSTANCES WHEREIN THE ASSESSEE HAS NOT CHALL ENGED THE VALIDITY OF JURISDICTION DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE, THE ASSESSEE IS STOPPED TO RAISE LEGAL OBJECTIONS IN THIS REGARD FOR ITS FAILURE TO CHALLENGE THE LEGAL JURISDICTIONAL ISSUE WITHIN THE TIME PRESCRIBED U/S 124 OF THE ACT. THE LD. CIT - DR ALSO SUBMITTED THAT THE PROPOSITION LAIDDOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF JASJIT SINGH [SUPRA] IS NOT APPLICABLE AND THE PROPOSITION AS RELIED BY THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF ITAT DELHI IN THE CASE OF DSL PROPERTIES PVT. LTD REPORTED AT 60 SOT 88 URO IS ALSO NOT APPLICABLE TO THE PRESENT CASE IN VIEW OF THE FIRST PROVISO TO SECTION 153C(1) R.W.S 124 OF THE ACT. THE LD. CIT - DR VEHEMENTLY POINTED OUT THAT PROVISO TO SECTION 153C(1) SHOULD NOT BE TAKEN OR CONSIDERED ON STAND - ALONE BASIS BUT THE SAME 25 SHOULD BE CONSIDERED IN ENTIRETY AND THE SAME SHOULD BE GIVEN LOGICAL MEANING R.W.S 153C(2) AND 124 OF THE ACT. 1 4 . THE LD. CIT - DR ALSO SUBMITTED THAT AS PER THE PROPOSITION LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF STATE OF KERALA VS. MATHAI VERGHESE [1986] 4 SCC 746 P - 749 , THE COURT CANNOT REFRAME THE LEGISLATION FOR THE VERY GOOD REASONS IT HAS NO POWER TO LEGISLATE. HE FURTHER PLACED RELIANCE ON THE DICTA LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF SHRI RAM SAHU VS. STATE OF WEST BENGAL AIR 2004 [SC] 5080 SUBMIT T ED THAT IN THE GUISE OF PURPOSIVE INTERPRETATION, THE COURTS CANNOT REWRITE OR REVIEW THE MANDATE OF LEGISLATION BECAUSE IT IS BEYOND THE POWERS OF THE C OURT. 1 5 . ALL THESE PROPOSITIONS, IN OUR HUMBLE VIEW, AGREE WITH THE CONTENTION OF THE LD. CIT - DR THAT THE TRIBUNAL HAS NO POWER TO REFRAME LEGISLATION AND FOR THE PURPOSE OF INTERPRETATION, THE PROVISIONS OF THE ACT CANNOT BE REVIEWED OR REWRITTEN BY T HE TRIBUNAL AND WE ARE CAUTIOUS ENOUGH ABOUT THIS LIMITATION OF THE TRIBUNAL AND WE HAVE NEVER CROSSED THE LIMITATION AS PROVIDED BY THE PROPOSITIONS LAID DOWN IN THE ABOVE CITED CASES. 26 1 6 . THE LD. CIT - DR FURTHER REVERTING TO THE ISSUE OF INCRIMINATING MATERIAL, SUBMITTED THAT THE PROPOSITION AS RELIED UPON BY THE LD. AR IN THE CASE OF SSP AVIATION [SUPRA] IS NOT APPLICABLE TO THE PRESENT CASE AND FOR APPLYING ANY RATIO OR PROPOSITION, THE FACTS AND RELEVANT LAW SHOULD BE SEEN FIRST, THEN THE COURT MAY A DVERT TO THE LEGAL PROPOSITIONS OR DICTA OF THE JUDGMENTS/ORDERS OF HON'BLE APEX COURT, VARIOUS HON'BLE HIGH COURTS AND CO - ORDINATE BENCHES OF THE TRIBUNAL IN THE LIGHT OF RELEVANT PROVIS I ONS OF THE ACT. PLACING RELIANCE ON THE JUDGMENTS OF THE HON'BLE JU RISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. CHETAN DASS LACHHMAN DASS REPORTED AT 254 CTR [DEL] 392 SUBMITTED THAT THERE IS NO REQUIREMENT OF INCRIMINATING MATERIAL FOR MAKING ANY ADDITION BECAUSE LAW DOES NOT PROVIDE SUCH REQUIREMENTS. THE LD . CIT - DR FURTHER SUBMITTED THAT IN THE CASE OF KABUL CHAWLA ORDER DATED 28.08.2015 ITA NO. 707/DEL/2014 THE HON'BLE HIGH COURT HAS NOT DEALT WITH THE PROPOSITION LAID DOWN BY IT IN THE CASE OF FILATEX INDIA LTD VS. CIT [2014] TIOL - 1325 - SC - DE L - IT AND IN TH E CASE OF MADUGULA VENU VS. DIT REPORTED AT 266 CTR 372 [DEL] WHEREIN IT WAS HELD THAT THE NOTICE ISSUED U/S 153A OF THE ACT CALLING UPON THE ASSESSEE TO FILE RETURN FOR EARLIER SIX A.YS CANNOT BE CHALLENGED ON THE GROUND THAT IT WOULD CAUSE CERTAIN DEGREE OF HARDSHIPS TO THE ASSESSEE. THE LD. CIT - DR STRONGLY CONTENDED THAT THE BENEFIT OF THE DECISION OF 27 RATIO OF HON'BLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA [SUPRA] CANNOT BE EXTENDED TO THE ASSESSEE. FURTHERMORE, THE LD. CIT - DR SUBMITTED THAT I T IS FACTUALLY WRONG TO SAY THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE OPERATION UPON THE MIND A GROUP WHICH BELONGS TO THE ASSESSEE BECAUSE DOCUMENTARY INCRIMINATING MATERIAL FOUND DURING SEARCH AND SEIZURE OPERATION HAS D IRECT LINKAGE WITH THE PRESENT APPELLANTS. 1 7 . THE LD. CIT - DR, FURTHER REFERRING TO THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF KULWANT KAUR VS. GURDIAL SINGH MANN [2001] 4 SCC 262 PARA 2 AT 267 SUBMITTED THAT THE DECISION BASED ON CONCESSI ON CANNOT BE TERMED AS A BINDING PRECEDENT . THE LD. CIT - DR FURTHER REFERRING TO PARA 17 OF THE ORDER OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF SSP AVIATION LTD [SUPRA] SUBMITTED THAT PARA 17 RELIED BY THE ASSESSEE IS SIMPLY OBITER NOT GETTING S UPPORTED BY THE BARE PROVISIONS OF LAW AND HENCE CANNOT BE RELIED IN THE CONTEXT OF THE PRESENT APPEALS IN FAVOUR OF THE ASSESSEE. THE LD. CIT - DR ALSO SUBMITTED THAT THE ORDER OF SSP AVIATION LTD [SUPRA] WAS NOT CONSIDERED AND REFERRED BY THE HON'BLE HIGH COURT OF DELHI WHILE PASSING JUDGMENT IN THE CASE OF KABUL CHAWLA [SUPRA] AND THE PROPOSITION LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN KABUL 28 CHAWLA SHOULD BE SEEN IN THE RIGHT CONTEXT AND PERSPECTIVE. THE LD. CIT - DR HAS ALSO CHALLENGED THE APPLICABILITY OF PROPOSITION IN FAVOUR OF THE ASSESSEE BY THE PROPOSITION LAID DOWN IN THE CASE OF KUSUM GUPTA [SUPRA] AND SUBMITTED THAT NO QUESTION OF LAW HAS BEEN FRAMED IN THIS CASE AND THEREFORE, THE PROPOSITION DOES NO T HAVE BINDING EFFECT AND THUS BENEFIT OF THIS PROPOSITION CANNOT BE EXTENDED TO THE ASSESSEE. THE LD. CIT - DR SUBMITTED THAT IN THE CASE OF DSL PROPERTIES [SUPRA] THE ASSESSEE SUPPRESSED THE FACT THAT THESE JURISDICTIONAL OBJECTIONS WERE NOT RAISED AS PROV IDED AND MANDATED AS PER SECTION 124(3) OF THE ACT AND ALL SUBSEQUENT JUDGMENTS/ORDERS OF THE TRIBUNAL CANNOT BE USED AS PRECEDENT FOR GRANTING RELIEF TO THE ASSESSEE AS ANY INTERPRETATION OR PROVISION OF THE ACT CANNOT BE TAKEN INTO CONSIDERATION AS RATIO OR PROPOSITION TO BE FAILURE. THE LD. CIT - DR ALSO CHALLENGED THAT THE PROPOSITION LAID DOWN BY THE TRIBUNAL IN THE CASE OF SATYAM FOOD SPECIALITIES P. LTD 68 SOT DEL DOES NOT APPLY TO THE PRESENT CASE BECAUSE THE TRIBUNAL GRANTED RELIEF ON MERITS AND NOT ON THE LEGAL GROUND OF VALIDITY OF SECTION 153C ASSESSMENT. 1 8 . FINALLY, THE LD. CIT - DR PARTED WITH THE ARGUMENTS SUMMARISING HIS CONTENTIONS INTO BROADLY FOLLOWING POINTS: 29 I) THE ASSESSEE CANNOT CHALLENGE THE LEGAL ISSUE OF ASSUMPTION OF VALID JURISDICTI ON BY THE AO FOR INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153 OF THE ACT A THIS LEGAL OBJECTION WAS NOT RAISED DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE CANNOT RAISE THE SAME SUBSEQUENTLY AS PER SEC . 124 R.W. PROVISO TO SECTION 153C(1) OF THE ACT. II) THE CONTENTION OF THE ASSESSEE RE G ARDING LIMITATION IS NOT TENABLE BECAUSE THE PROPOSITION/DICTA LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JASJIT SINGH [SUPRA] AND ORDER OF THE ITAT, DELHI BENCH IN THE CASE OF DSL P ROPERTIES [SUPRA] IS NOT APPLICABLE TO THE PRESENT CASE. III) THERE WAS AMPLY INCRIMINATING MATERIAL AGAINST THE ASSESSEE WHICH HAS BEEN MENTIONED IN RESPECTIVE SATISFACTION NOTES. THEREFORE, THE ARGUMENTS OF THE ASSESSEE IS NOT TENABLE THAT THERE WAS NO MATERIAL BELONGING TO THE ASSESSEE AS PER SATISFACTION NOTE PREPARED BY THE AO OF THE OTHER PERSON I.E. THE PRESENT ASSESSEES AT THE TIME OF INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT. IV) RATIO OR PROPOSIT I ON OF THE JUDGMENTS/ORDERS OF THE HON'BLE SUPREME COURT, VARIOUS HON'BLE HIGH COURT AND TRIBUNAL SHOULD BE SEEN IN THE RIGHT PERSPECTIVE. MERE PRIMA FACIE REMARKS FOR 30 PASSING REFERENCE DO NOT HAVE BINDING EFFECT AND THE SAME CANNOT BE RELIED UPON FOR GRAN TING RELIEF TO THE ASSESSEE. 1 9 . THE LD. AR, BY PLACING RELIANCE ON THE WRITTEN SUBMISSIONS AND OBJECTING TO THE LD. CIT - DR'S ARGUMENTS, SUBMITTED THAT THE LD. CIT - DR SHRI RAMESH CHANDER RAISED SIMILAR CONTENTIONS AND OBJECTIONS BEFORE THE ITAT D BENCH IN THE CASE OF M/S COMP UTER ENGINEERING SERVICES INDIA [P] LTD VS. ACIT [DELHI ITAT IN ITA NOS. 5 874 TO 5 878 /DEL/201 5 WHICH WERE REJECTED AT THE THRESHOLD BY THE TRIBUNAL BY PASSING ORDER ON 29.05.2015 WHICH IS ALSO IN THE KNOWLEDGE OF THE LD. CIT - DR AND THE SAME ARGUMENTS AND CONTENTIONS HAVE BEEN RAISED IN THE PRESENT CASE FOR ADJUDICATION AND WITHOUT FILING ANY APPEAL BEFORE THE HON'BLE HIGH COURT A DJUDICATION OF ISSUES AT THE LEVEL OF THE TRIBUNAL SHOULD NOT BE RAISED AGAIN AND AGAIN BEFORE OTHER BENCH ES OF THE TRIBUNAL. 20 . THE LD. AR ESPECIALLY TOOK US THROUGH PAGES 33 TO 37 OF THE ORDER OF THE ITAT IN THE CASE OF M/S COMPU TER ENGINEERING SERVICES [SUPRA] AND VEHEMENTLY CONTENDED THAT SECTION 124(3) OF THE ACT PERTAINS TO ISSUE OF TERRITORIAL JURISDICTION OF THE AO. THIS IS NOT DISPUTED IN THE PRESENT CASE. THE LD. AR REITERATED HIS WRITTEN REBUTTAL TO THE ARGUMENTS OF THE LD. DR SPREAD OVER 18 PA GES AND SUBMITTED THAT IN 31 THE WRITTEN SYNOPSIS FILED ON 21.10.2015, THREE PROPOSITIONS WERE PLACED BY THE ASSESSEE AND ALL THE ARGUMENTS ON BEHALF OF THE ASSESSEE WERE BASED WITHIN THE AMBIT OF THESE THREE PROPOSITIONS VIZ. ASSESSMENT IS BAD IN LAW AND WIT HOUT JURISDICTION, (II) ADDITIONS ARE MADE BEYOND THE SCOPE OF ASSESSMENT AS NO ADDITION IS MADE ON THE BASIS OF SEIZED DOCUMENTS RECORDED IN THE SATISFACTION NOTE AND (III) NOTICE ISSUED U/S 153C AND ASSESSMENT FRAMED THEREAFTER IS BAD IN LAW AS NO DOCUME NTS BELONGING TO THE ASSESSEE APPELLANT WAS FOUND FROM THE PREMISES OF THE SEARCHED PERSON I.E. MINDA GROUP. THE LD. COUNSEL FOR THE ASSESSEE PRECISELY AND BRIEFLY POINTED OUT THAT THE SUBMISSIONS AND CONTENTIONS OF THE LD. DR AND SEGREGATED THE SAME IN S IX BROAD ARGUMENTS AND PLACED WRITTEN REBUTTAL OF ALL SIX ARGUMENTS WHICH WERE ALSO BRIEFLY REITERATED BEFORE US WHILE PLACING REJOINDER ON BEHALF OF THE ASSESSEE. THE LD. COUNSEL VEHEMENTLY POINTED OUT THAT SECTION 124 OF THE ACT PERTAINS TO THE JURISDIC TION OF THE AO VESTED CLAUSE(1) AND (2) OF SECTION 124 OF THE ACT AND DEFINITELY OBJECTION TO SUCH JURISDICTION CAN BE RAISED IN TERMS OF SECTION 124(2) OF THE ACT AND IN TERMS OF SUB - SECTION (3) OF SECTION 124 OF THE ACT AND RIGHT TO RAISE SUCH OBJECTION SHALL BE FORGONE BEYOND THESE STAGES BUT THESE PROPOSITIONS ARE RELATED TO TERRITORIAL JURISDICTION OF THE ASSESSEE AND CHALLENGE TO THE INITIATION OF PROCEEDINGS AND ASSESSMENT OF 32 JURISDICTION U/S 153A AND 153C OF THE ACT IS QUITE DIFFERENT AND THIS CONTE NTION ALSO GETS STRONG SUPPORT FROM THE DICTA LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. RAMESH D. PATEL REPORTED 362 ITR 492. THE LD. COUNSEL ALSO SUBMITTED THAT THE ISSUE OF INHERENT LACK OF JURISDICTION CAN BE RAISED AT ANY STAG E AND THE CONTENTION OF THE LD. DR IS BASELESS AS IN THE PRESENT CASE, THE LD. CIT(A) HAS NOT DEALT WITH THE SAID ISSUES WHICH WERE RAISED BY THE ASSESSEE VIDE ITS GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS. TO SUPPORT THIS PROPOSITION, THE LD. AR PLACED R ELIANCE ON VARIOUS JUDGMENTS OF HON'BLE HIGH COURTS INCLUDING THE HON'BLE JURISDICTION AL HIGH COURT IN THE CASE OF VALVOLINE CUMMINS LTD. VS. DCIT REPORTED IN 307 ITR 103 [DEL] . 21 . ON THE SECOND CONTENTION, THE LD. AR SUBMITTED THAT IN THE CASE OF JASJIT SINGH [SUPRA] IT HAS BEEN CATEGORICALLY HELD THAT THE CUT OFF DATE FOR ISSUANCE O F NOTICE U/S 153C HAS TO BE RECKONED FROM THE DATE OF HANDING OVER OF BOOKS TO THE AO OF THE OTHER PERSON AND THE SAID FINDINGS IS APPLIED TO THE FACTS OF THE ASSESSEE, PERTAIN TO A.Y 2006 - 07 AND 2007 - 08 WOULD BE BEYOND THE PURVIEW OF THE PRESCRIBED LIMITATION RELEVANT TO PROVISIONS OF SECTION 153C OF THE ACT AS THE SATISFACTION NOTE IN THE INSTANT CASE WAS RECORDED ON 09.09.2013 AND THE NOTICE U/S 33 153C OF THE ACT WAS AL SO ISSUED ON THE SAME DATE THEN THE ONLY CONCLUSION CAN BE DRAWN THAT THE AO OF THE OTHER PERSON I.E. THE ASSESSEE HAS TAKEN OVER THE POSSESSION OF SEIZED DOCUMENTS ON 09.09.2013 AND THUS, AS PER SECTION 153A (1) THE AO CAN ISSUE NOTICE U/S 143(3) OF THE A CT FOR PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED AND FOR THE PURPOSE OF SECTION 153C OF THE ACT FOR THE PREVIOUS YEAR IN WHICH DOCUMENT IS HANDED OVER AND NOTICE U/S 153C OF THE ACT FOR SIX A.YS PRECEDING SUCH A.YS. THE LD. AR TOOK US THROUGH PARAS 3 TO 5 OF THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. JASJIT SINGH [SUPRA] AND SUBMITTED THAT THE HON'BLE HIGH COURT HAS CATEGORICALLY HELD THAT THE QUESTION OF PENDENCY AND ABATEMENT OF PROCEEDINGS OF ASSESSMENT OR REASS ESSMENT WILL BE EXAMINED WITH REFERENCE TO SUCH DATES WHICH WAS IN THE PRESENT CASE 09.09.2013 AND ASSESSMENTS FRAMED FOR A.Y 2006 - 07 AND 2007 - 08 BEYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT. 22 . REGARDING THIRD ARGUMENTS OF THE LD. DR, TH E LD. AR SUBMITTED THAT THE INTERPRETATION PROPOSED BY THE LD. CIT - DR IS NOT SUSTAINABLE AND TENABLE THAT THERE IS NO REQUIREMENT OF MAKING ADDITION ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH AND ADDITIONS CAN BE MADE BEYOND INCRIMI NA TING MATERIAL AS WELL IS AGAIN BASED ON 34 MISCONCEIVED AND MISPLACED READING OF STATUTORY PROVISIONS OF STATUTE AND JUDICIAL PRECEDENTS AVAILABLE AS IT IS AN AGREED ASPECT. IN KABUL CHAWLA [SUPRA] AFTER ANALYZING EACH AND EVERY JUDGMENT OF VARIOUS HON'BLE HIGH COURT ON THIS ISSUE AND ALSO THE JUDGMENTS AS RELIED UPON BY THE LD. CIT - DR, VIZ JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS. CHETAM DASS LACHMAN DASS [SUPRA] AND FILATEX INDIA LTD [SUPRA] AND MADUGULA VENU [SUPRA] EXPLICITLY HELD THAT ADDITIONS AS A RESULT OF SEARCH HAS TO BE BASED ON INCRIMINATING MATERIAL ONLY. THE LD. AR HAS DRAWN OUR ATTENTION TO PARAS 37 TO 39 OF THE ORDER OF THE HON'BLE HIGH COURT IN THE CASE OF KABUL CHAWLA [SUPRA] AND SUBMITTED THAT ADDITION MADE BY THE AO ARE BEYOND THE SCOPE OF ADDITION AS NO ADDITION IS MADE ON THE INCRIMINATING MATERIAL FOUND A S A RESULT OF SEARCH AND AS IS RECORDED IN SATISFACTION NOTE DATED 09.09.2013. 2 3 . REGARDING FOURTH LIMB OF ARGUMENTS OF THE LD. CIT - DR , THE LD. AR VEHEMENTLY CONTEND ED THAT FOR MAKING ASSESSMENT U/S 153C AFTER PRECEDENT IS THE SATISFACTION NOTE AND WITH RESPECT TO COMPLETED ASSESSMENT THE ADDITION HAS TO BE BASED UPON THE SEIZED DOCUMENTS AS MENTIONED IN THE SEIZED DOCUMENTS ONLY. ONCE THE AO OF THE SEARCHED PERSON R ECORDS AND HANDS OVER THE SEIZED DOCUMENTS MENTIONED THEREIN TO THE OTHER PERSON, THEN THE ANSWER OF THE OTHER PERSONS IS 35 PRECLUDED IN CONSIDERING ANY OTHER MATERIAL OVER AND A BO V E THE MATERIAL/DOCUMENTS MENTIONED IN THE SATISFACTION NOTE AND FURTHER MORE, LOOKING AT THE DOCUMENTS AS WELL, NOTHING BUT MERE PHOT OCOPIES OF FINANCIAL STATEMENTS. THE LD. AR PLACING RELIANCE ON THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF PEPSICO REPORTED IN 370 ITR 295 SUBMITTED THAT THE SAID DOCUMENTS MENTIONED IN THE SATISFACTION NOTE CANNOT BE SAID TO BE BELONGING TO THE ASSESSEE BECAUSE THE PHOTOCOPIES OF THE BALANCE SHEET AND FINANCIAL STATE M ENTS CANNOT BE HELD AS DOCUMENTS BELONGING TO THE ASSESSEE AND THEREFORE INITIATION OF PROCEEDINGS U/S 153C AND ISSUANCE OF NOTICE WAS BAD IN LAW AND WITHOUT JURISDICTION AND THE SAME SHOULD BE QUASHED. 2 4 . THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT REGARDING FIFTH LIMB OF ARGUMENTS OF THE LD. CIT - DR THAT NO SUCH LEGAL ARGUMENT CHALLENGING THE JURI SDICTION OF THE AO WAS RAISED BY THE ASSESSEE, THE LD. CIT(A) IS FACTUALLY INCORRECT BECAUSE THE ASSESSEE VIDE GROUND NOS. 1 AND 2 BEFORE THE FIRST APPELLATE AUTHORITY RAISED THESE LEGAL OBJECTIONS WHICH WERE ALSO DETAILED BY THE LD. CIT(A) VIDE PARA 6.7 O F THE IMPUGNED ORDER. THE LD. COUNSEL VEHEMENTLY CONTENDED THAT THE LEGAL ISSUE INVOLVED IN THE INSTANT APPEAL ARE PURELY LEGAL AND WHICH INVOLVE CONSIDERATION OF INHERENT JURISDICTION. THEREFORE, THERE IS NO 36 BAR IN RAISING THE SAME BEFORE THIS TRIBUNAL UNLESS AND UNTIL THE SAME ARE INVOLVED IN FRESH CONSIDERATION OF FACTS AND THEREFORE FACTUALLY INCORRECT SUBMISSIONS OF THE LD. DR SHOULD BE REJECTED. 2 5 . THE LD. AR ALSO TOOK US THROUGH PAGES 15 TO 18 OF THE WRITTEN SUBMISSIONS OF THE ASSESSEE WHEREIN TA BLE HAS BEEN PLACED REBUTTING THE SUBMISSIONS, CONTENTIONS AND PROPOSITIONS MADE BY THE LD. DR ON BEHALF OF THE REVENUE IN A TABULAR FORM WHICH WOULD BE DEALT WITH BY US SUBSEQUENTLY AT AN APPROPRIATE STAGE. 2 6 . THE LD. COUNSEL FOR THE ASSESSEE PARTED WITH THE ARGUMENTS AND SUBMISSION THAT THE CONTENTION OF THE LD. DR REGARDING APPLICABILITY OF PROPOSITION/DICTA LAID DOWN BY THE HON'BLE SUPREME COURT AND HON'BLE HIGH COURTS AND TRIBUNAL IS NOT ACCEPTABLE AND TENAB LE BECAUSE MERELY REFERRING TO ONE OR TWO LINES OF JUDGMENT RATIO AND EVALUATION OF BINDING EFFECT CANNOT BE DONE AND MERELY BECAUSE QUESTION OF LAW HAS NOT BEEN FRAMED AND SAME HAS NOT BEEN ANSWERED IN THE ORDER/JUDGMENT, THE SAME DOES NOT LOSE THE TAG OF BINDING EFFECT AND DICTA/PROPOSITION, ESPECIALLY THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI HAVE BINDING EFFECT ON THE TRIBUNAL AND THIS FACT CANNOT BE 37 NEGATED OR IGNORED WHILE PASSING THE ORDERS AND WHILE ADJUDICATING THE APPLICABILITY OF DICTA AND P RECEDENTS RELIED UPON BY THE PARTIES. 2 7 . FIRST OF ALL WE FIND IT APPROPRIATE TO DEAL WITH THE LEGAL CONTENTIONS OF THE LD. CIT - DR THAT THE ASSESSEE IS PRECLUDED FROM RAISING THE ISSUE OF JURISDICTION AT THIS STAGE, MORE PARTICULARLY WHEN SUCH OBJECTIONS WAS NOT RAISED DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO AND AS PER PROVISIONS OF SECTION 124(2) TO (4) THE ASSESSEE IS DEBARRED FROM RAISING SUCH LEGAL OBJECTIONS BEFORE THE TRIBUNAL SPECIALLY WHEN THE ASSESSEE PARTICIPATED ASSESSMENT PROCEEDINGS BE FORE THE AO AND THIS OMISSION WOULD GIVE RAISE TO A PRESUMPTION THAT THE ASSESSEE HAS WAIVED OR GIVEN UP THE LEGAL JURISDICTIONAL ISSUE. ON CAREFUL CONSIDERATION OF ABOVE, FROM THE OPERATIVE PARAS 34 TO 36 OF THE ORDER OF THE ITAT, DELHI IN THE CASE OF CO MPUTER ENGINEERING SERVICES INDIA [PVT] LTD [SUPRA] SIMILAR CONTENTIONS OF THE LD. CIT - DR SHRI RAMESH CHANDER WERE REJECTED WITH THE FOLLOWING OBSERVATIONS: 4. BEFORE PARTING WITH THE MATTER, WE WOULD LIKE TO DEAL WITH THE CONTENTION OF LD CIT - DR THAT EXT ANT PLEA OF AMALGAMATION AS RAISED BY ASSESSEE IS HIT BY PROVISIONS OF SECTION 124(3) OF THE ACT. IN THIS REGARD, HE VOCIFEROUSLY ARGUED AND TRIED TO PERSUADE US THAT SAID PROVISION CLEARLY COMES IN THE WAY OF ASSESSEE TO 38 RAISE THE PLEA OF ASSESSMENT ON NON EXISTING COMPANY WITHOUT RAISING THE SAME BEFORE AO AT A LATER STAGE AND HEAVILY RE LIED ON FULL BENCH DECISION OF GUWATHI HIGH COURT IN SMT. SOHANI DEVI JAIN REPORTED IN 109 ITR 130. AFTER MUCH DELIBERATION, WE ARE UNABLE TO SUBSCRIBE TO THE VIEWS OF LD CIT - DR FOR THE SIMPLE REASON THAT HON'BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF S.S.AHLUWALIA IN ITA 255/2002 (ORDER DATED 14/3/2014) REPORTED IN 2014 (88) CCH (158) DELHI H.C. IN TURN RELYING ON ANOTHER DELHI HIGH COURT DECISION IN CASE OF K.K. LOOMBA REPORTED IN 241 ITR 152 HAS CLEARLY HELD THAT SECTION 124 HAS APPLICABILITY TO ONLY TERRITORIAL JURISDICTION ISSUE AND NOT TO OTHER JURISDICTIONAL ISSUES WHEN THERE IS INHERENT LACK OF JURISDICTION. FURTHER, WE WISH TO COMMEMORATE THE TRITE PRINCIPLE THAT AN ORDER WHICH IS NULLITY IN THE EYES OF LAW, PLEA RELATING TO THE SAME CAN BE RAISED AT ANY STAGE EVEN DURING COLLATERAL PROCEEDINGS AS EXPLAINED IN LEADING CASE LAW OF GUJARAT HIGH COURT IN CASE OF P.V.DOSHI 113 ITR PG 22. 35. THE HON'BLE DELHI HIGH COURT IN THE CASE OF S.S. AHLUWA LIA (SUPRA) HAS HELD AS UNDER: 36. IN BUDHIA SWAIN AND ORS. VS. GOPINATH DEV AND ORS. (1999) 4 SCC 396, IT WAS HIGHLIGHTED THAT DISTINCTION EXISTS AND WAS WELL RECOGNIZED BETWEEN LACK OF JURISDICTION AND MERE ERROR IN EXERCISE OF JURISDICTION. LACK OF JUR ISDICTION STRIKES AT THE VERY ROOT OF THE ACTION/ACT AND WANT OF JURISDICTION MIGHT VITIATE PROCEEDINGS RENDERING THE ORDERS PASSED AND EXERCISE THEREOF, A NULLITY. BUT A MERE ERROR IN EXERCISE OF JURISDICTION WOULD NOT VITIATE THE LEGALITY AND VALIDITY OF THE PROCEEDINGS AND THE SAID 39 ORDER WAS VALID UNLESS SET ASIDE IN THE MANNER KNOWN TO LAW BY LAYING A CHALLENGE, SUBJECT TO LAW OF LIMITATION. THE FOLLOWING PORTION OF HIRA LAL PATNI VS. KALI NATH, AIR 1962 SC 199 WAS QUOTED: ....THE VALIDITY OF A DECREE CAN BE CHALLENGED IN EXECUTION PROCEEDINGS ONLY ON THE GROUND THAT THE COURT WHICH PASSED THE DECREE WAS LACKING IN INHERENT JURISDICTION IN THE SENSE THAT IT COULD NOT HAVE SEISIN OF THE CASE BECAUSE THE SUBJECT MATTER WAS WHOLLY FOREIGN TO ITS JURISDICTI ON OR THAT THE DEFENDANT WAS DEAD AT THE TIME THE SUIT HAD BEEN INSTITUTED OR DECREE PASSED, OR SOME SUCH OTHER GROUND WHICH COULD HAVE THE EFFECT OF RENDERING THE COURT ENTIRELY LACKING IN JURISDICTION IN RESPECT OF THE SUBJECT MATTER OF THE SUIT OR OVER THE PARTIES TO IT. 36. IN THE LIGHT OF THE ABOVE BINDING JURISDICTIONAL HIGH COURT PRECEDENTS, WE DO NOT APPROVE THE OBJECTION TAKEN BY LD CIT - DR THAT THE ASSESSEE'S PLEA IS BARRED BY SECTION 124(3) AS SAM E IS NOT APPLICABLE TO PRESENT FACTUAL SITUATION. 2 8 . IN THIS REGARD, FIRSTLY, WE MAY POINT OUT THAT ON VIGILANT READING OF SE C TION 124 OF THE A C T, IT IS CLE A R THAT THIS PROVISION IS RELATED TO TERRITORIAL JURISDICTION OF THE AO AND THE TIME FRAME REGAR DING RI G HT OF ASSESSEE TO RAISE OBJECTION TO THE TERRITORIAL JURISDICTION OF THE AO AND TIME FRAME OR LIMITATION PRESCRIBED IN THIS REGARD BUT IN THE PRESENT CASE THE ASSESSEE IS NOT CHALLENGING THE TERRITORIAL JURISDICTION OF THE 40 ASSESSEE BUT IT IS CHALLENGING THE VALIDITY OF ASSUMPTION OF JURISDICTION FOR INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT AND THUS SAID LEGAL OBJECTION OF LD CIT - DR IS REJECTED. 2 9 . WE FURTHER OBSERVE THAT THE TRIBUNAL IN THE ORDE R IN THE CASE OF COMPUTER ENGINEERING SERVICES [SUPRA] HAS REFERRED TO THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DE LHI IN THE CASE OF K.K. LOOMBA [SUPRA] WHEREIN IT WAS HELD THAT SECTION 124 OF THE ACT HAS APPLICABILITY TO ONLY TERRITOR IA L J URISDICTION ISSUE AND NOT THE OTHER JURISDICTION ISSUE WHEN THERE IS INHERENT LACK OF JURISDICTION. SAME DICTA WAS GIVEN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAMESH D. PATEL [SUPRA] WHEREIN IT WAS HELD THAT SECTION 124 OF THE ACT HAS NO RELEVA NT IN SO FAR AS THE INHERENT JURISDICTION FOR PASSING AN ORDER OF ASSESSMENT U/S 153A IS CONCERNED, HENCE THIS LEGAL CONTENTION OF THE LD. CIT - DR IS ALSO DISMISSED. 30 . SO FAR AS PARTICIPATION IN THE ASSESSMENT AND FIRST APPELLATE PROCEEDINGS WITHOUT RAIS ING ANY LEGAL OBJECTIONS ARE CONCERNED IN THIS FROM COPY OF FORM NO. 35 IT IS CLEAR THAT THE ASSESSEE RAISED LEGAL GROUND NO. 1 TO 3 BEFORE THE LD. CIT(A) CHALLENGING THE VALIDITY OF ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT. THUS, THIS CONTENTION OF 41 THE LD. CIT - DR IS MISLEADING AND FACTUALLY INCORRECT AND THUS THE SAME IS DISMISSED. IT WOULD ALSO BE RELEVANT TO POINT OUT THAT IN THE CASE OF VOLVOLINE CUMMINS LTD VS. DCIT [SUPRA] IT WAS HELD THAT PARTICIPATION IN THE PROCEEDINGS WITHOUT RAISING LEGAL OBJECTIONS DOES NOT AUTOMATICALLY DEBAR THE ASSESSEE TO RAISE THE SAME DURING THE APPELLATE PROCEEDINGS AND HENCE WE ARE INCLINED TO HOLD THAT THIS LEGAL CONTENTION OF THE ASSESSEE IS BASELESS AN UNACCEPTABLE. 31 . SECOND LEGAL CONTENTION/OBJECTION OF THE LD. CIT - DR IS THAT A.Y 2006 - 07 AND 2007 - 08 ARE NOT BEYOND THE PRESCRIBED LIMITATION PERIOD AS THE CUT OFF DATE FOR CALCULATION OF LIMITATION PERIOD HAS TO BE RECKONED FROM THE DATE OF SEARCH AND NOT FROM THE DATE OF HANDING OVER OF THE DOCUMENTS BY THE AO OF THE SEARCHED PERSON AND RATIO OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JASJIT SINGH [SUPRA] IS NOT APPLICABLE TO THE PRESENT CASE AS NO QUESTION OF LAW WAS FRAMED NEITHER ANSWERED AS REQUIRED U/S 260A OF THE ACT. THE LD. CIT - DR HAS ALSO RAISED WRITTEN LEGAL CONTENTION/OBJECTIONS DATED 21.10.2015 TO THE APPLICABILITY OF DICTA/PREPOSITIONS/BINDING PRECEDENTS RENDERED BY THE HON'BLE SUPREME COURT/HON'BLE HIGH COURT AND COORDINATE BENCHES OF THE TRIBUNAL. FOR THE SAKE OF COMPLET ENESS SAID WRITTEN OBJECTIONS OF THE LD. CIT - DR SHRI RAMESH CHANDER ARE BEING REPRODUCED BELOW: 42 1.1 VIDE ITS GROUND NO.3 & 4 THE APPELLANT, APART FROM TERMING THE PROCEEDINGS CONDUCTED TO BE BAD IN LAW, HAS POINTED OUT THAT THE ADDITIONS MADE BY THE ASSESSING OFFICER ARE NOT REFERABLE TO THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH. BY GROUNDS OF APPEAL & ESPECIALLY THE PROPOSITIONS ASSESSEES IN A WAY ARE TRYING TO SAY THAT; ( I ) THE AO HAD NO JURISDICTION TO ASSESS THE INCOME WHICH WAS NOT REFERAB LE TO SEIZED DOCUMENTS OR SEARCH MATERIAL; ( II ) THE AO HAD NO JURISDICTION TO ASSESS THE INCOME U/S 153C IN RESPECT OF CERTAIN PREVIOUS YEARS TO BE CONSIDERED IN REFERENCE TO THE DATE OF HANDING OVER OF THE DOCUMENTS. ( II ) THE AO HAD NO JURISDICTION TO ASSESS THE I NCOME OF CERTAIN YEARS WHICH HAD NOT ABATED I.E. WHICH STOOD COMPLETED EARLIER. (IV) THE AO HAD NO JURISDICTION TO PROCEED U/S 153C BECAUSE THE SATISFACTION NOTE PREPARED BY HIM DOES NOT SHOW DENIAL OF CERTAIN DOCUMENTS BY THE PERSON FROM WHOM THEY WERE FOUND. 1.2 AT THE OUTSET, IT IS POINTED OUT THAT BEFORE THE AO NEVER EVER THERE WAS ANY CHALLENGE TO HIS JURISDICTION. EVEN BEFORE THE CIT(A) OR THE ITAT THERE IS NO SPECIFIC GROUND CHALLENGING AO S JURISDICTION THAT THE AYRS ASSESSED WERE BEYOND THE PERI OD OF 6 AYRS CONTEMPLATED IN LAW OR THAT THESE CERTAIN YEARS HAD ALREADY ABATED. HOWEVER, VERY STRANGELY IN THE GARB OF PROPOSITIONS MADE OUT IN THE WRITTEN SUBMISSIONS THESE JURISDICTIONAL ISSUES HAVE BEEN RAISED. BEF ORE THE AO THIS 43 OBJECTION WAS NOT RAIS ED TILL THE END OF THE ASSESSMENT PROCEEDINGS FOR THE SIMPLE REASON THAT THERE WAS A BAR AS PROVIDED U/S 124 TO RAKE UP THIS ISSUE LATER WHEN THE ASSESSEE HAD ALREADY FAILED TO CHALLENGE THE JURISDICTION WITHIN THE STATUTORY PERIOD PRESCRIBED UNDER THE ACT. 2.1 AS MENTIONED, BY RAISING THESE GROUND BASICALLY THE ASSESSEE HAS TRIED TO CHALLENGE THE JURISDICTION OF THE AO WHICH IS NOT POSSIBLE NOW BECAUSE OF THE BAR PROVIDED U/S 124(3) F THE ACT AS PER WHICH AFTER THE FINALIZATION OF THE ASSESSMENT PROCE EDINGS IT IS NOT OPEN TO THE ASSESS TO CHALLENGE THE JURISDICTION OF THE AO TO ASSESS IT. AS HELD IN SMT. SOHANI DEVI JAIN V. ITO {109 ITR 130 FB GAU } SECTION 124 DOES NOT DEAL MERELY WITH TERRITORIAL JURISDICTION . LACK OF JURISDICTION MAY BE DUE TO - JU RISDICTION OVER THE PLACE; - IN RESPECT OF PERSON; - IT MAY BE DUE TO LACK OF AUTHORITY UNDER THE LAW; - IT MAY BE DUE TO WANT OF PROPER CONSTITUTION OF THE TRIBUNAL OR THE COURT ETC. THE HIGH COURT CLEARLY SAYS THAT ALL TYPES OF JURISDICTIONAL ISSUES GET COVERED BY THE BAR PROVIDED U/S 124 OF THE ACT. KINDLY APPRECIATE THAT SECTION 124(2) TO (4) HAVE BEEN DEVISED TO OUTLINE A PROCEDURE ENSURING THAT THE ASSESSEE GETS A RIGHT TO BE 44 ASSE SSED BY THE PROPER OFFICER, SAFEGUARDING THE REVENUE AT THE SAME TIME BY INSISTING THAT THE OBJECTIONS TO JURISDICTION ARE POSSIBLE ONLY WITHIN 124(3) TIME. SUCH AN OBJECTION CANNOT BE RAISED FOR THE FIRST TIME IN APPEAL AS HELD IN BAHADUR SETH TEOMAL 36 I TR 9 SC. 2.1.2 CLEARLY, NO CHALLENGE TO AO S JURISDICTION AND CONSEQUENT PARTICIPATION MEANS THAT THE ASSESSEE ACQUIESCED AND WHEN IT WAS SO IT (ASSESSEE) IS ESTOPPED NOW FROM RAKING UP THIS ISSUE LATER AND IN THIS CONNECTION RELIANCE IS PLACED ON SUSHIL KUMAR JALAN V. ITO ITA 34/GAU/20LL - ORDER DATED 03 - 02 - 2012 WHERE IT WAS HELD THAT PARTICIPATION IN THE PROCEEDINGS AMOUNTS TO ACQUIESCENCE AND THEREBY THE ASSESSEE IS ESTOPPED FROM CONTENDING THE ISSUE FURTHER. LIKEWISE, PATNA HIGH COURT IN RAJA BAHADUR K AMAKHYA NARAIN SINGH 51 ITR 596 (PAT) HELD THAT NON - RAISING OF OBJECTION WITHIN THE TIME, WOULD AMOUNT TO WAIVER OF OBJECTION. 2.1.3 IN SUMMATION, IT IS SUBMITTED THAT SINCE THE ASSESSEE FAILED TO CHALLENGE THE JURISDICTION OF THE AO (ON ALL THE COUNTS I.E. ADDITION NOT BEING REFERABLE TO INCRIMINATING MATERIAL FOUND IN SEARCH INCLUDING THE POINT OF ABATEMENT; AND ALSO THE GROUND OF AY INVOLVED BEING BEYOND 6 YEARS) ETC. WITHIN THE PRESCRIBED PERIOD IT IS ESTOPPED FROM CHALLENGING IT NOW. 45 B. ASSE SSMENT BAD IN LAW & WITHOUT JURISDICTION. (AY WAS OUTSIDE THE BLOCK OF 6 YEARS): 1. THE ASSESSEE HAS MADE A PROPOSITION THAT AY 7 - 8 ( SUNNY INF RA ETC. ) FALLS BEYOND THE BLOCK PER IOD TO BE RECKONED IN REFERENCE O N THE DATE OF RECORDING OF THE SATISFACTION. THE AR SAYS THAT DOCUMENTS WERE HANDED OVER IN FY 13 - 14 I.E. AY 14 - 15 AND ACCORDINGLY 6 PREVIOUS YEARS WOULD BE AY 08 - 09 TO 2013 - 14 AND AS PER THIS AY 07 - 08 FALLS BEYOND 6 PREVIOUS YEARS CONTEMPLATED UNDER THE LAW. IN THIS CONTEXT, THE AR HAS PLACED RELIANCE ON JUDGMENTS INTER ALIA INCLUDING OF DELHI HIGH COURT IN JASJIT SINGH (ITA NO.337/2015); & ITAT DELHI DECISION IN DSL PROPERTIES P. LTD. {60 SOT 88 URO} ETC. 2.1 BEFORE ADVERTING TO THE ARGUMENTS AND THE DECISIONS RELIED IT IS CONSIDERED NECESSARY TO POINT OUT THE RE LEVANT LEGAL POSITION AS CONTAINED IN PROVISO TO SECTION 1530(1) WHICH IS AS UNDER; PROVIDED THAT IN CASE OF SUCH OTHER PE RSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH U/S 132 OR MAKING REQUISITION U/S 132A IN THE SE COND PROVISO TO SUB - SECTI ON (1) OF SECTION 153A SHALL BE CONSTRUED AS ' REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENT OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. 46 2.2 BEFORE SHOWING THE ABSURDITY OF THE ARGUMENT ADVANCED , IT IS CONSIDERED NECESSARY TO POINT OUT THAT THE LAW DOES NOT REQUIRE AS TO THE TIME LIMIT WITHIN WHICH THE DOCUMENTS NEED TO BE HANDED OVER TO THE OTHER AO. GOING BY THE DETAILS OF PRESENT APPEALS, IT WOULD BE NOTICED THAT THE SEARC H TOOK PLACE ON 10 - 01 - 2012 (PY 11 - 12) WHICH WAS YET TO END. THE DATE OF HANDING OVER OF DOCUMENT IS 29 - 11 - 2013 AND THE AR SUBMITS THAT THIS DATE HAS TO BE DEEMED TO BE THE DATE OF SEARCH. AS PER THIS DATE THE 6 A YRS WOULD INTER ALIA INCLUDE PY 12 - 13, N - 12 & THE 7 TH YEAR WOULD BE IN REFERENCE TO DATE OF HANDING OVER OF THE MATERIAL. BY AR S ARGUMENT IT WOULD MEAN THAT DEPENDING UPON THE DATE OF HAND OVER OF THE SEIZED MATERIAL THE PERIOD OF 6 YEARS+7' H YEAR MAY ALSO INCLUDE THE AYRS WHICH HAVE NOT EVEN BEGUN OR WHOSE FINANCIAL TRANSACTIONS HAVE NOT YET TAKEN PLACE. HOW SEARCH CAN BE THERE TO COVER TRANSACTIONS WHICH TAKE PLACE ONLY IN FUTURE. THE INTERPRETATION OF THE AR GIVES CLEARLY THE ABSURD RESULTS AND HENCE HAS TO BE JUST DISCARDED. 2.3 THE ONLY REAS ONABLE AND IRRESISTIBLE INTERPRETATION IS THAT THE LAW, WHEN IT PROVIDES FOR SUBSTITUTION OF HAND OVER DATE AS THE DATE OF SEARCH IT ONLY MEANS THAT AS ON THE DATE OF HAND OVER WHATEVER ASSESSMENT PROCEEDINGS ARE PENDING THEY WILL ABATE. THIS IS THE INTERPRETATION WHICH EVEN THE DELHI TRIBUNAL HAS TAKEN IN THE CASE OF APOORVA EXTRUSION P. LTD. (DATED 09 - 10 - 2014) WHERE ON THE IDENTICAL ISSUE OF NUMBER OF ASSESSMENTS TO BE FRAMED AFTER RECORDING OF SATISFACTION WAS INVOLVED IT WAS HELD THAT NUMBER OF AS SESSMENTS TO BE FRAMED U/S 153A OR U/S 153C HAVE TO BE SAME (6 YEARS). 47 2.4 THE ASPECT THAT THE 6 PREVIOUS ASSESSMENT YEARS AND THE 7 TH ASSESSMENT YEAR INVOLVED RELEVANT TO THE DATE OF SEARCH WOULD BECOME MORE CLEAR FROM THE BARE READING OF SUB - SECTION (2) OF SECTION 153C WHICH CLEARLY PROVIDES THAT IN A CASE WHERE THE DOCUMENTS ETC. ARE RECEIVED BY THE AO AFTER THE DUE DATE FOR FILING THE RETURN OF THE YEAR IN WHICH SEARCH TOOK PLACE THEN EVEN IF NO RETURN IS FILED OR NO NOTICE U/S 143(2) HAS BEEN ISSUE D WITHIN THE LIMITATION, AO WOULD STILL BE REQUIRED TO ASSESS THE INCOME OF THAT PERIOD. THIS ONLY SHOWS THAT THE YEARS TO BE ASSESSED U/S 153C HAVE TO BE THE SAME AS THEY WOULD BE WHILE PROCEEDING U/S 153A IN THE CASE OF THE PERSON WHO HAS BEEN SUBJECTED TO SEARCH OR REQUISITION ISSUED U/S 132 OR 132A OF THE ACT. ON THIS POINT QUA THE ARGUMENT THAT IMPUGNED AY IS BEYOND THE PRESCRIBED PERIOD OF 6 YEARS AS MENTIONED IN SECTION 153C IT IS POINTED OUT THAT DECISIONS/JUDGMENTS RELIED ARE NOT APPLICABLE. 3.1 D ELHI TRIBUNAL DECISION IN DSL PROPERTIES (P) LTD. ETC. HAVE TO BE IGNORED AS THIS DECISION RUNS CONTRARY TO CO - ORDINATE A BENCH LATER DECISION IN THE CASE OF APOORVA EXTRUSION P. LTD. (DATED 09 - 10 - 2014) WHERE ON THE IDENTICAL ISSUE OF NUMBER OF ASSESSMEN TS TO BE FRAMED AFTER RECORDING OF SATISFACTION WAS INVOLVED WHERE IT WAS HELD THAT NUMBER OF ASSESSMENTS TO BE FRAMED U/S 153A OR U/S 153C HAVE TO BE SAME. FURTHER, THIS DSL DECISION IS BASED UPON ADDITIONAL GROUNDS WHICH WERE NOT EVEN TAKEN UP BEFORE THE LOWER AUTHORITIES WHICH AGAIN IS CONTRARY TO LAW AND ALSO THE RULE 11 OF THE AT RULES. FURTHER, THIS DECISION ENTERTAINS AN 48 ALTERNATIVE CONTENTION NOT RAISED BEFORE THE LOWER AUTHORITIES WHICH ENTERTAINMENT IS CONTRARY TO THE WELL LAID DOWN LAW AS ALSO EX PLAINED BY KERALA HIGH COURT IN CK GOPINATH { 260 ITR 213 KER}. IN SHORT, FOR ALL THESE REASONS THE DECISION HAS TO BE HELD TO BE NOT APPLICABLE ESPECIALLY IN VIEW OF THE BAR CONTAINED U/R II 3.2 DELHI HIGH COURT JUDGMENT IN JASJIT SINGH IN ITA NO.337/2015 ETC. ALSO ARE NOT AVAILABLE AS PRECEDENTS TO BE USED BECAUSE IN THIS CASE (AS SEEN FROM PARA 5 OF THE ORDER) THE QUESTION OF LAW WAS NEITHER FRAMED NOR ANSWERED AS REQUIRED U/S 260A OF THE ACT. IT IS A SETTLED PROPOSITION OF LAW THAT FOR APPLYING ANY JUDGMENT OF THE HIGH COURT IT IS NECESSARY THAT IT MUST FORMULATE THE QUESTION OF LAW AND THEN IT SHOULD BE ANSWERED EITHER WAY. IN SUPPORT OF THIS READY REFERENCE IS DRAWN TO THE SUPREME COURT JUDGM ENTS IN THE CASE OF MEHBOOB DAWOOD SHEIKH V. STATE OF MAHARASHTRA (2004) 2 SCC 362 PARA 12 AND SURINDER KUMAR V. STATE OF PUNJAB V. {194 ITR 434 SC)} WHERE IT WAS HELD THAT A DECISION IS AVAILABLE AS PRECEDENT ONLY IF IT DECIDES A QUESTION OF LAW . SINCE, IN THE ABOVE CASE NO QUESTION OF LAW WAS DECIDED IT CANNOT AT ALL BE RELIED UPON EVEN INDIRECTLY. 3.3 SAME WAY, DELHI HIGH COURT JUDGMENT IN SSP AVIATION LTD. {346 ITR 177} IS ALSO NOT AVAILABLE AS A PRECEDENT FOR THE SIMPLE REASON THAT THERE MAIN CONTROV ERSY BEFORE THE HIGH COURT AS POINTED IN PARA 7 OF THE JUDGMENT WAS 49 ..THE MAIN CONTENTION OF THE PETITIONER IS THAT THE ASSESSING OFFICER HAS ILLEGALLY ASSUMED JURISDICTION U/S 153C READ WITH SECTION 153A OF THE ACT, THAT THERE WAS NO UNDISCLOSED INCOME T O HE ASSESSED IN THE PETITIONER S HANDS AND THEREFORE A WRIT OF CERTIORARI SHOULD HE ISSUED TO QUASH THE PROCEEDINGS AS NULL AND VOID . CLEARLY, THERE WAS NO CONTROVERSY BEFORE THE HIGH COURT AS TO WHICH 6 YEARS ARE TO BE CONSIDERED WHILE MAKING ASSESSMEN T U/S 153C OF THE ACT AND HENCE THIS JUDGMENT CANNOT BE RELIED OR REFERRED TO WHILE DECIDING THE PRESENT APPEAL. 3.4 IT IS SUBMITTED THAT THE DECISIONS/JUDGMENTS RELIED ON THE ISSUE BY THE AR ARE NOT AVAILABLE INTER ALIA FOR VARIOUS REASONS ADVANCED WHILE MAKING ORAL ARGUMENTS FEW OF WHICH FOR CONVENIENCE SAKE, IN SHORT ARE ALSO GIVEN IN ANNEXURE A - I TO THESE WRITTEN SUBMISSIONS. C. PROPOSITION THAT ASSESSMENTS CAN NOT BE QUA THE ADDITIONS NOT REFERABLE TO SEARCH MATER IAL: D. PROPOSITION THAT ASSESSMENT U/S 153C CANNOT BE ON INCOMES NOT BORNE OUT OF DOCUMENTS SHOWN IN THE SATISFACTION NOTE. E. THE ADDITIONS HAD ALREADY BEEN MADE IN EARLIER 143(3) ASSESSMENT: 50 1.1 QUA THE PROPOSITION/ARGUMENT OF THE AR THAT ASSESSMENTS CAN NOT HE QUA THE ADDITIONS NOT REFERABLE TO SEARCH MATERIAL HON BLE BENCH IS REQUESTED TO KINDLY APPRECIATE THAT HAD THE LEGISLATURE INTENDED TO RESTRICT THE SCOPE OF ASSESSMENT U/S 153A/153C ONLY TO THE SEIZED MATERIAL IT WOULD HAVE BEEN I NDICATED SO AS WAS DONE BY IT EARLIER U/S 158BC OR U/S 158BD. ONE MUST APPRECIATE THAT MANDATE OF SECTION 153A/153C IS ASSESSMENT OF TOTAL INCOME AND WHEN IT IS SO THE COMPUTATION OF TOTAL INCOME CANNOT BE RESTRICTED TO DETECTION OF INCRIMINATING EVIDENCES ALONE. FURTHER, AS A MATTER OF RULE & PRACTICE SEARCH U/S 132 IS ALWAYS PRECEDED BY A PROPER SATISFACTION NOTE RECORDING THE FACTS, CIRCUMSTANCES AND MAKING OUT OF A PRIMA FACIE CASE JUSTIFYING THE CONDUCT OF A SEARCH ACTION. WHEN IT IS SO, NON RECOVERY OF INCRIMINATING MATERIAL CANNOT MAKE THE SATISFACTION NOTE NON - EXISTENT. EVEN IF INCRIMINATING MATERIAL IS NOT FOUND FACTS AND CIRCUMSTANCES NARRATED IN THE SATISFACTION NOTE WOU LD STILL REQUIRE EXAMINATION/CONSIDERATION LATER ON IN REFERENCE TO VARIOUS DISCLOSURES MADE BY THE ASSESSEE IN THE RETURN OF INCOME. REQUIREMENT OF ANY INCRIMINATING MATERIA L BEFORE A N ADDITION IS MADE U/S 153A CAN NOT BE ASSUMED WHEN UNAMBIGUOUSLY IT IS NOT THERE AND SUCH AN ATTEMPT WILL AMOUNT TO REFRAMING THE LEGISLATION WHICH IS THE EXCLUSIVE DOMAIN OF THE LE G ISLATURE . IT NEEDS TO BE APPRECIATED THAT WHEN UNAMBIGUOUSLY REQUIREMENT OF ADDITION ALWAYS TO BE SOLELY BASED ON SEIZED MATERIAL IS NOT THERE AN D TO RESTRICT ADDITION ONLY QUA THE SEIZED DOCUMENTS/MATERIAL WILL AMOUNT TO 51 REFRAMING THE LEGISLATION & IN THIS CONTEXT USEFUL REFERENCE CAN BE MADE OF ( A ) THE STATE OF KERALA V. MATHAI VERGHESE {(1986) 4 SCC 746 P.749} WHERE IT WAS OBSERVED THAT THE COURTS CANNOT REFRAME THE LEGISLATION FOR THE VERY GOOD REASONS THAT IT HAS NO POWER TO LEGISLATE. ( B ) IN A TAXING ACT ONE HAS TO LOOK MERELY WHAT IS CLEARLY SAID. THERE IS NO ROOM FOR ANY INTENDMENT. THERE IS NO EQUITY ABOUT A TAX. NOTHING IS TO BE READ IN, NOTHING IS TO BE IMPLIED. { CIT V, KESHAVLAL AIR 1965 SC 866.P}. ( C ) WHEN INTENTION TO TAX IS CLEAR, IT CANNOT BE DEFEATED BY A MERE DEFECT IN PHRASEOLOGY ON THE GROUND THAT THE PROVISION COULD HAVE BEEN MORE ARTISTICALLY DRAFTED. {CWT, BIHAR V. KRIPASHANKAR, AIR 19 71 SC 2463, P.2466}. 1.2 THE CIT(A) HAS VERY RIGHTLY HELD AFTER PLACING RELIANCE ON JURISDICTIONAL HIGH COURT JUDGMENTS IN SSP AVIATIONS LTD. {346 ITR 177 DEL.}; CHETAN DAS LACHHMAN DAS {25 TAXMAN.COM 227} & ANIL KUMAR BHATIA { 24 TAXMANNCOM 98} THAT THER E IS NO LAW THAT ASSESSMENT HAS TO BE REFERABLE TO THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH. IN THE CASE OF ANIL BHATIA WHERE, THE HON BLE HIGH COURT BEING VERY CONSCIOUS THAT THE JOB OF THE JUDICIARY IS TO INTERPRET THE LAW AND NEVER TO WRITE IT AND SINCE RESTRICTING THE ADDITIONS U/S 153A/153C ONLY IN REFERENCE TO INCRIMINATING MATERIAL WOULD H AVE AMOUNT TO WRITING THE LAW ( AN EXCLUSIVE DOMAIN OF THE LEGISLATURE), REFUSED TO ENTER INTO 52 THIS DEBATE WHICH IS VERY CLEAR FROM THE CONTENTS OF PARA 23 WHICH READ AS UNDER; WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED U/S 132 OF THE ACT. WE, THEREFORE, EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN HE INVOKED EVEN IN SUCH A SITUATION. IN THE LIGHT OF THE PLAIN LANGUAGE OF THE LAW, VIEW OF THE HIGH COURT WAS VERY CLEAR AS ECHOED IN CIT V. CHETAN DASS LACHHMAN DASS {25 TAXMANN.COM 227 } THAT THERE IS NO REQUIREMENT TO BASE ASSESSMENT ONLY ON SEARCH MATERIAL. IN THIS CONTEXT, WHERE ( PARA 11) HIGH COURT HELD AS UNDER; TO REPEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD HE STRICTLY MADE ON THE HASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN HE R ELATED TO THE EVIDENCE FOUND. IN VIEW OF THE ABOVE IT IS PRAYED TO REJECT PLEA OF THE ASSESSEES BY HOLDING THAT THERE IS NO REQUIREMENT U/S 153A OR U/S 153C TO ALWAYS NECESSARILY REFER TO THE SEARCH MATERIAL WHILE MAKING ADDITIONS. 53 1.3.1 IN SO FAR AS RELIANCE PLACED BY THE ASSESSEE ON VARIOUS DECISIONS OF THE TRIBUNAL AND THE HIGH COURT (ESPECIALLY INCLUDING MGF AUTOMOBILES AND KABUL CHAWLA) IS CONCERNED IT IS SUBMITTED THAT THEY ARE NOT AVAILABLE AS PRECEDENTS INTER ALIA FOR VARIOUS REASONS GIVEN IN SHORT IN ANNEXURE A - L TO THESE SUBMISSIONS AND ALSO IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGMENTS AND THE ARGUMENTS REFERRED TO BY THE CIT(A) AS WELL AS WHAT IS MENTIONED IN THE PRESENT SUBMISSIONS SPECIFICALLY IN VIEW OF DELHI HIGH COURT JUDGMENTS IN SSP AVIATIONS LTD; CHETAN DAS LACHHMAN DAS; ANILA BHATIA; MADUGULA VENU { 29 TAXMANN.COM 200 DEL} & FILATEX INDIA LTD { 49 TAXMANN.COM 465 DEL}. 3. QUA THE PROPOSITION THAT IN THE EARLIER INNINGS THE ADDITIONS MADE ON ACCOUNT SHARE CAPITAL HAD BEEN SUBJECTED TO INVESTIGATION OR VERIFICATION AND HENCE THE SAME OUGHT NOT TO HAVE BEEN VISITED U/S 153C OF THE ACT , IT IS SUBMITTED THAT SEARCH ACTION HAD REVEALED THAT THE SHARE CAPITAL RECEIVED BY THE ASSESSEE COMPANIES WERE IN THE NATURE OF ACCOMMODATION ENTRIES. THE STATEMENTS OF THE ENTRY PROVIDER SK TAIN AND THAT OF ASHOK MINDA AS RECORDED DURING THE COURSE OF SEARCH SHOWED THAT THE SHARE CAPITAL RECEIVED WAS NOT GENUIN E. THIS SEARCH MATERIAL {SEARCH STATEMENTS RECORDED U/S 132(4)} HAD TO BE NECESSARILY TAKEN NOTE OF WHEN IN THE EARLIER INNING THE AO WAS NOT HAVING THIS MATERIAL AT ALL. IN VIEW OF THE NEW SEARCH MATERIAL IT CANNOT BE SAID TO BE A CASE OF REVISITING OR REVIEWING THE EARLIER CONCLUDED ISSUES. 54 F. PROPOSITION THAT NO DOCUMENT BELONGING TO THE ASSESSEE WAS FOUND IN SEARCH: 1.1 THE AR HAS ARGUED THAT IT IS NECESSARY THAT BEFO RE INVOKING 153C THE AO MUST BE SATISFIED THAT THE SEIZED MATERIAL DOES NOT BELONG TO THE PERSON REFERRED IN SECTION 153A AND SINCE IN T HE IMPUGNED SATISFACTION NOTE THERE IS NOTHING THEREIN TO INDICATE THAT THE SEIZED DOCUMENTS DO NOT BELONG TO MINDA GROUP PROCEEDINGS HAVE TO BE QUASHED. IN THAT CONTEXT, RELIANCE HAS BEEN PLACED ON VARIOUS DECISIONS/JUDGMENTS REFERRED TO IN ANNUEXURE A - X TO THE PRESENT SUBMISSIONS WHICH AS SHOWN THERE (ANNEXURE A - I) ARE NOT AVAILABLE AS PRECEDENT. 1.2 THE HON BLE BENCH IS PRAYED TO KINDLY CONSIDE R THAT DURING THE SEARCH AT THE PREMISES OF MINDA GROUP IN ADDITION TO THE DOCUMENTS MENTIONED IN THE SATIS FACTION NOTE THERE WERE MANY OTHER DOCUMENTS WHICH WERE FOUND WHICH BELONGED TO THE PARTIES UNDER CONSIDERATION IN THE PRESENT APPEALS. AT A GLANCE ATTENTION IS INVITED TO THE FOLLOWING IMPORTANT DOCUMENTS WHICH BELONGED TO THESE ASSESSES; 55 1.1.3 UNDISPUTEDLY, THE ASSESSEE UNDER CONSIDERATION ARE BELONGING TO MINDA GROUP AND THEY ARE THE ONES WHICH HAD BEEN USED BY THE MINDA GROUP TO BRING IN ITS BOOKS ITS UNACCOUNTED INCOME IN THE GARB OF SHARE CAPITAL, LOANS ETC. DURING THE SEARCH STATEMENT OF THE ENTRY OPERATOR S.K. JAIN WAS RECORDED WHEREIN HE HAD ADMITTED TO HAVE PROVIDED ACCO MMODATION ENTRIES. THE AR'3 PARTY - AT D - 6 TO 11 SEC.59, NOIDA OF MINDA GROUP COMPANIES A - 4/79 - COPY OF SCH. OF BALANCE SHEET AT 31 - 03 - 2011 & P&L A/C FOR 81 P & L A/C ENDED ON 31 - 03 - 2011 OF LAIRY DISTRIBUTORS P. 82 B/SHEET ON 31 - 03 - 2011 OF LAIRY DISTRIBUTORS P. LTD. 83 - 85 AUDIT REPORT, 2003 OF LAIRY DISTRIBUTORS P. LTD. 86 - 87 AUDITORS REPORT LAIRY DISTRIBUTORS P. LTD. 88 - 120 COPY OF IT RETURN FOR AY N - 12 - LAIRY DISTRIBUTORS P. LTD. 121 COPY OF IT RETURN FOR AY N - 12 - LAIRY DISTRIBUTORS P. LTD. A - 5/36 ANNEXURE PAR - A AND B OF SUNNY INFRA PROJECTS LTD. 37'45 FORM 3 CD - SUNNY INFRA PROJECTS LTD. 47 BALANCE SHEET & COMPANY S GENERAL PROFILE OF SUNNY INFRA 48 - 52 SCH. 1 TO 2 OF BALANCE SHEET ON 31 - 03 - 2011 & P & L A/C OF 53 CASH FLOW STATEMENT OF SUNNY INFRA. PROJECTS. LTD. 54 P&L FOR 31 - 03 - 2011 OF SUNNY INFRA. PROJECTS. LTD. 55 BALANCE SHEET ON 31 - 03 - 2011 OF SUNNY INFRA. PROJECTS. LTD. 56 - 58 AUDITORS REPORT TO SUNNY INFRA. PROJECTS. LTD. DT. 26 - 08 - 2011 59 COMPUTATION SHEET OF BALRAM VINIMAY P. LTD. AY 11 - 12 60 BALANCE SHEET ABSTRACT & GEN. PROFILE OF BALRAM VINIMAY 61 - 63 B/SHEET ON 31 - 03 - 2011 & P & L OF BALRAM VINIMAY P. LTD. 64 P & L OF BALRAM VINIMAY P. LTD. ON 31 - 03 - 2011 65 COPY OF B. SHEETR AS AT 31 - 03 - 2011 OF BALRAM VINIMAY P. 66 INCOME COMPUTATION OF BALRAM VINIMAY P. LTD. AY 11 - 12 67 - 69 ANN. OF REPORT OF BALRAM VINIMAY P. LTD. HANS RAJ CHUG & 70 - 71 AUDITORS REPORT BALRAM VINIMAY P. LTD. 72 - 105 ITR FOR AY N - 12 OF BALRAM VINIMAY P. LTD - DATE OF 106 ITR OF BALRAM VINIMAY P. LTD A - 12/13 TRIAL BALANCE SHEET 1 - 4 - N TO 31 - 12 - 11 OF SUNNY INFRO PROJECTS 14 TRIAL BALANCE SHEET 1 - 4 - N TO 31 - 12 - 11 OF BALRAM VINIMAY P 16 TRIAL BALANCE SHEET 1 - 4 - N TO 31 - 12 - N OF LAIRY DISTRIBUTORS P. A - 13/86 PAY VOUCHER OF RS.25 LAC - SUNNY INFRAPROJECTS DT. 2 - 12 - 87 PAY VOUCHER OF RS.655 LAC - SUNNY INFRAPROJECTS DT. 1 - 12 - 88 PAY VOUCHER OF RS.5 LAC - SUNNY INFRAPROJECTS DT. 30 - 11 - 89 PAY VOUCHER OF RS.3.23 CR. - SUNNY INFRAPROJECTS DT. 2 - 12 - A - 18/21 TRIAL BALANCE SHEET 1 - 4 - 2011 TO 30 - 11 - 2011 OF SUNNY 22 TRIAL BALANCE SHEET 1 - 4 - 2011 TO 30 - 11 - 2011 OF BALRAM VINMAY 23 TRIAL BALANCE SHEET 1 - 4 - 2011 TO 30 - 11 - 2011 OF BALRAM VINMAY 26 TRIAL BALANCE SHEET 1 - 4 - 2011 TO 30 - 11 - 2011 OF LAIRY 64 BALANCE SHEET 1 - 4 - 2011 TO 31 - 03 - 2008 - LAIRY DISTRIBUTORS 78 GENERAL DOCUMENT OF BALRAM VINIMAY P. LTD. 79 GENERAL DOCUMENT OF INVESTMENT OF LAIRY DISTRIBUTORS P. 56 STATEMENT OF S.K. JAIN IS BEING ENCLOSED AS ANNEXURE A - Z TO THESE SUBMISSIONS. THAT APART, STATEMENT OF SHRI ASHOK MINDA WAS ALSO RECORDED ON THE DATE OF SEARCH WHEREIN HE HAD ADMITTED UNACCOUNTED INCOME BELONGING TO VARIOUS ENTITIES OF ITS GROUP TOTALLING TO 40 CRORES. FOR READY REFERENCE COPY OF THIS STATEMENT RECORDED ON 11 - 01 - 2012 IS BEING ENCLOSED AS ANNEXURE A - 3 TO THESE SUBMISSIONS. APART FROM THE DOCUMENTS MENTIONED IN THE SATISFACTION NOTE AND ALSO AS MENTIONED IN PARA 1.1.2 ABOVE, THESE STATEMENTS WERE ALSO OF INCRIMINATING NATURE AND WERE PARTLY ( IF NOT FULLY) DEFINITELY BELONG ING TO THE ASSESSES UNDER CONSIDERATION WHEN UNDISPUTEDLY THESE ASSESSEES TOO BELONG TO MAIN MINDA GROUP. THUS THE ARGUMENT OF THE AR THAT IN THESE APPEALS THAT THERE WAS NO SEARCH MATERIAL SO AS TO MAKE ADDITION OR FOR T HAT MATTER FOR PROCEEDING U/S I5 3 C HAS TO BE JUST REJECTED. 2.1.1 WITHOUT PREJUDICE TO THE ABOVE, IT IS POINTED OUT THAT THE LAW DOES NOT REQUIRE RECORDING OF SATISFACTION NOTE ON AO S PART IN WRITING ETC. MERELY, BECAUSE AO HAS RECORDED A NOTE WHICH IS NOT EVEN CONTEMPLATED IN LAW IT CANNOT BE A GROUND WITH THE ASSESSEE TO DISPUTE ITS CONTENTS. IF AT ALL THE ASSESSEE DISPUTES THE AO S ACTION IT IS FOR IT TO BRING TANGIBLE MATERIAL ON RECORD TO REBUT THE SATISFACTION OF THE AO THAT THE DOCUMENT DOES NOT BELONG TO IT. HOW AO CAN BE MADE A WITNESS IN HIS OWN CASE. WITHOUT PREJUDICE TO THE ABOVE, SUFFICE WOULD IT BE TO SAY THAT SINCE THE ASSESSEE HAS FAILED TO CHALLENGE THE JURISDICTION OF THE AO WITHIN PRESCRIBED PERIOD AS PRESCRIBED U/S 124 OF THE ACT ON THE GROUND THAT THE DOCUMENTS DID NOT BELONG TO IT, THE ARGUMENT OR THE GROUND HAS TO BE JUST REJECTED. 57 2.1.2 IT BE APPRECIATED THAT BALD & SELF SERVING CLAIM IN THE STATE MENT OF FACT THAT DOCUMENTS DO NOT BELONG TO THE ASSESSEES IS NOT ENOUGH. IN THE ABSENCE OF EVIDENCE BACKED DENIAL OF THIS MATERIAL FACT IN THE STATEMENT OF FACT (WHICH WAS AN EXCLUSIVE BURDEN OF THE ASSESSEE TO BE DISCHARGED) OR IN THE GROUNDS OF APPEAL, IT HAS TO BE INFERRED THAT THE DOCUMENTS DO BELONG ONLY TO THE ASSESSEES. IF DOCUMENTS DID NOT BELONG TO THE ASSESSEES EVIDENCES WERE REQUIRED TO BE ADDUCED TO SHOW AS TO WHOM THESE BELONGED (IF NOT TO THEM). 2.2 ABOUT THE MAJOR RELIANCE PLACED BY THE AR ON THE DELHI HIGH COURT JUDGMENT IN PEPSICO INDIA HOLDINGS RELIED BY THE ASSESSES CANNOT BE PRESSED INTO SERVICE AS A BINDING PRECEDENT BECAUSE THIS JUDGMENT IS FIRSTLY OBTAINED BY WAY OF WRIT AND SECONDLY THIS JUDGMENT IS FUNDAMENTALLY BASED ON FACTS, C ONCESSIONS. FURTHER, AS WOULD BE SHOWN LATER IN THIS PARA, THIS WAS OBTAINED BY MISREPRESENTATION. 2.2.1. IT WOULD BE NOTICED THAT THERE IN THAT CASE THERE WERE FOLLOWING THREE TYPES OF DOCUMENTS IN ALL ( I ) COPIES OF SHARES WHOSE ORIGINALS WERE WITH THAT COMP ANY (PEPSICO). ( II ) UNSIGNED CHEQUES (IN THE CHEQUE BOOKS OF JAIPURIA GROUP); ( III ) PHOTO COPY OF AGREEMENT (BETWEEN ASSESSEE PEPSICO & ONE PEARL DRINKS). 2.2.2 THE HIGH COURT HELD THAT MERE PHOTO COPIES OF SHARE CERTIFICATE SO FOUND CANNOT NECESSARILY BELONG TO IT (PEPSICO) 58 BECAUSE IT IS THE ORIGINAL DOCUMENT WHICH CAN BE SAID TO BE BELONGING TO IT AND IN THAT CONTEXT THE HIGH COURT AS AN ILLUSTRATION EXPLAINED T HAT A REGISTERED SALE DEED BELONGS TO THE PURCHASER. LIKEWISE, IN THE CONTEXT OF THE CHEQUES IT WAS HELD THAT UNSIGNED CHEQUE CANNOT BE HELD TO BE BELONGING TO A PERSON JUST BECAUSE ITS (PEPSICO) NAME IS MENTIONED AS THE PAYEE. SAME WAY COPY OF THE SUPPLY AND LOAN AGREEMENT WAS FOUND TO BELONGING TO THE PERSONS FROM WHOSE POSSESSION IT WAS FOUND BECAUSE ORIGINAL WAS WITH THE PETITIONER PEPSICO HOLDINGS LTD. WITH THE ABOVE OBSERVATIONS, THE WRIT PETITIONS WERE ALLOWED HOLDING THE INGREDIENTS OF SECTION 153C TO NOT TO HAVE BEEN SATISFIED. 2.2.3 FROM THE READING OF THE HIGH COURT ORDER COUPLED WITH THE WRIT PETITION SO FILED IT BECOMES APPARENT THAT THE BELONGINGNESS OF THESE DOCUMENTS WAS NOT QUESTIONED BY THE PETITIONER (PEPSICO) ON THE GROUND THAT THEY A RE JUST THE PHOTO COPIES OR THAT THE CHEQUES WERE UNSIGNED ONES. HIGH COURT AT ITS OWN (PROBABLY TO DO SUBSTANTIAL JUSTICE & APPARENTLY FOLLOWING THE PRINCIPLES OF EQUITY) INSTEAD OF ANSWERING THE FIVE QUESTIONS OF LAW SO POSED ALLOWED THE PETITION HOLDING NONE OF THE DOCUMENTS TO BE BELONGING TO THE PETITIONER. THUS, NON ANSWERING OF FIVE QUESTIONS POSED THAT TOO WHEN THERE WERE NO AVERMENT ABOUT THE NATURE OF A DOCUMENT (LIKE WHETHER PHOTO COPY OR WHETHER A UNSIGNED DOCUMENT/CHEQUE ETC. CAN BE SAID TO BE BELONGING TO ASSUME JURISDICTION) GOES TO SHOW THAT THE JUDGMENT IS BASICALLY BASED ON EQUITY AND FUNDAMENTALLY ON FACTS AND NOT ON LAW ESPECIALLY WHEN LAW DOES NOT RESTRICT 59 INVOCATION OF JURISDICTION ONLY WHEN ORIGINAL OR SIGNED DOCUMENT IS FOUND. 2.2.4 FURTHER, IN THE WRIT PETITIONERS HAD APPROACHED THE HIGH COURT SAYING THE PETITIONERS HAVE NO OTHER EQUALLY EFFICACIOUS REMEDY HUT TO APPROACH THIS HON BLE COURT VIDE THE PRESENT PETITION . HOWEVER, FOR DECIDING THE ISSUES RAISED IN WRIT PETITION WHICH CENTRED AROUND THE ISSUE OF AO S ASSUMPTION OF JURISDICTION U/S 153C STATUTORY ALTERNATIVE REMEDIES WERE ALREADY AVAILABLE. AGAINST AO S ACTION ASSESSEES COULD HAVE EASILY RESORTED TO ALTERNATIVE REMEDY AS PROVIDED U/S 144A PRAYING THE SUPERVISORY OFFICER (RANGE HEAD) TO INTERVENE AND EXAMINE LEGALITY OR CORRECTNESS OF AO S ACTIONS AND TO ISSUE NECESSARY DIRECTIONS (INCLUDING DROPPING OF PROCEEDINGS SO INITIATED) TO THE AO WHICH, AS PROVIDED IN LAW, WOULD HAVE BEEN BINDING ON HIM. WHAT ASSESSEES GOT BY WAY OF WRIT WOULD HAVE BEEN OBTAINED HAD PETITION BEFORE THE RANGE HEAD U/S 144A BEEN MOVED. 2.2.5 WITHOUT COMMENTING MUCH AS TO WHY THE ASSESSEE DID NOT MAKE THE HIGH COURT AWARE OF THE EXISTING EQUALLY EFFICACIOUS REMEDY IN SO FAR AS INCOME TAX ACT, 1961 I S CONCERNED IT IS IMPORTANT TO NOTE THAT IN MOST OF THE INCOME - TAX CASES EQUALLY EFFECTIVE ALTERNATIVE REMEDIES ARE ALWAYS PROVIDED ABOUT WHICH HIGH COURT IS AT TIMES NOT MADE AWARE. AS MENTIONED, THE RELIEF WHICH THE WRIT PETITIONER GOT BY WAY OF WRIT ORD ER WOULD HAVE OTHERWISE BEEN GOT IF PETITION U/S 144A HAD BEEN MOVED. AT THE 60 SAME TIME, IT CANNOT BE SAID THAT HIGH COURT WAS NOT AWARE ABOUT THESE EQUALLY EFFECTIVE ALTERNATIVE REMEDY PROVISIONS AND WHEN IT IS SO ONE CAN INFER THAT IN THE FACTS OF THE CAS E, IN ITS DISCRETIONARY POWERS, HIGH COURT ONLY GRANTING CONCESSION ALLOWED WRITS. IF IT IS SO, ONE CAN SAY THAT SUCH AN ORDER IS FUNDAMENTALLY BASED ON CONCESSIONS AND HENCE IT IS INAPPROPRIATE TO APPLY THAT CONCESSION BASED DECISION IN OTHER SUITS OR APP EALS AND IN THIS CONTEXT USEFUL REFERENCE CAN BE MADE OF KULWANT KAUR V. GURDIAL SINGH MANN {(2001) 4 SCC 262, 267 (PARA 2)} WHERE IT WAS LAID DOWN THAT CONCESSION BASED JUDGMENT CANNOT BE TERMED AS A BINDING PRECEDENT. 2.2.6 IN THIS VERY CONTEXT, IT IS APT TO MENTION THAT THE SUPREME COURT HAS REPEATEDLY HELD THAT IN WRIT PETITIONS RELIEF CANNOT BE GRANTED TO THOSE WHO ARE NOT BEFORE THE COURT AS PARTIES TO THE WRIT PETITIONS. READY REFERENCE CAN BE MADE OF APEX COURT JUDGMENT IN NEW FRIENDS COOPERATIVE HOUSE BUILDING SOCIETY LTD {(2004) 5 SCC 795'96(PARA 4)} WHERE ORDER OF THE HIGH COURT IN GRANTING RELIEF TO NON - PARTIES WAS FOUND TO BE FAULTY AND SUFFERING FROM NON - APPLICATION OF MIND. IF WRIT ORDERS ARE ALLOWED TO BE TAKEN HELP OF EVEN BY THOSE WHO WER E NOT BEFORE THE HIGH COURT IT WILL LEAD TO BY - PASSING THE DICTUM OF THE SUPREME COURT AND CONFERRING INDIRECTLY SOME POWERS QUITE SIMILAR TO WRITS ON AUTHORITIES WHICH THEY DO NOT IN FACT HAVE. 61 2.3 BECAUSE OF THE ABOVE REASONS, THE JUDGMENTS OR THE D ECISIONS IN WHICH PEPSICO JUDGMENT IN TURN IS RELIED UPON, ALSO BECOME INAPPLICABLE. G. ARGUMENT THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE PROCEEDINGS HAD NOT ABATED: ABOUT THE ARGUMENT OF THE ID. AR IT IS POINTED OUT THAT FUNDAMENTAL PRINCIPLE QUA ANY JUSTICE ADMINISTRATION SYSTEM WHICH FINDS ECHO EVEN IN THE CIVIL PROCEDURE CODE 1908 IS THAT PARALLEL PROCEEDINGS HAVE TO BE AVOIDED. MULTIPLICITY OF PROCEEDINGS OR FOR T HAT MATTER PARALLEL PROCEEDINGS DO NOT SERVE ANY PURPOSE EXCEPTING CAUSING DELAYS, CHAOS AND UNCERTAINTIES. IF 2 ND PROVISO TO SECTION 153AOO HAD NOT BEEN THERE IN THE ACT THERE WOULD HAVE BEEN FEAR AS WELL AS DOUBTS IN THE MINDS OF THE TAX PAPERS AS WELL A S THE TAX ADMINISTRATORS AS TO WHAT WOULD HAPPEN IN A CASE/YEAR WHERE OUT OF SIX YEARS TO BE ASSESSED U/S 153A CONSEQUENT UPON SEARCH IN ONE OR TWO YEARS OR IN ALL THE YEARS ASSESSMENT PROCEEDINGS BECAUSE OF NORMAL INITIATION OF PROCEEDINGS BY ISSUING NOTI CE U/S 143(2) OR BECAUSE OF REOPENING U/S 147 ETC. ARE ALREADY PENDING BEFORE THE ASSESSING OFFICER. IN THE ABSENCE OF THE 2 ND PROVISO THERE WOULD HAVE BEEN FEAR IN THE MINDS OF THE ASSESSEES AS WELL AS THE ASSESSING OFFICERS OF FRAMING 2 ASSESSMENT ORDERS FOR CERTAIN YEARS O NE UNDER NORMAL PROVISIONS U/S 143(3)/1 47 ETC. AND AGAIN U/S 153A OF THE ACT. SUCH AN EXERCISE BESIDES BRINING CHAOS WOULD HAVE RESULTED IN SHEER WASTAGE OF PRECIOUS TIME, ENERGY AND RESOURCES. TO ALLAY THESE FEARS QUA THE POSSIBILITY O F MULTIPLE PROCEEDINGS 2' PROVISO HAS BEEN INSERTED PROVIDING FOR AUTOMATIC ABATEMENT OF 62 ASSESSMENTS PROCEEDINGS IN RESPECT OF CERTAIN YEARS WHICH ARE PENDING BUT OTHERWISE FALL WITHIN THE BLOCK OF 6 YEARS WHICH GET COVERED FOR ASSESSMENT U/S 153A OF THE A CT. 2. THUS, VERY CLEARLY, SECOND PROVISO JUST AIMS AT ALLAYING THESE FEARS AND DOUBTS AND NOTHING MORE SUBSTANTIVE. ANY OTHER FUNCTION ASSIGNED TO THIS PROVISO LIKE INTERPRETING IT TO MEAN REPETITION OF ALREADY RETURNED OR ASSESSED INCOME IF NO INCRIMINA TING MATERIAL IS FOUND IN SEARCH WILL AMOUNT TO CUT DOWN AND NULLIFY THE MAIN ENACTMENT OF SECTION 153(1) ITSELF WHICH UNAMBIGUOUSLY MANDATE ASSESSMENTS IN ALL THE 6 YEARS INVOLVED. IN THIS CONTEXT USEFUL REFERENCE CAN BE MADE OF THE APEX COURT JUDGMENT IN THE CASE OF HINDUSTAN IDEAL INSURANCE CO. LTD. V. LIFE INSURANCE CORPORATION OF INDIA LTD. { AIR 1963 1083} WHERE MUDHOLKAR, J., STATED THE RULE QUA THE INTERPRETATION OF PROVISO THAT WHERE THE MAIN PROVISION IS CLEAR ITS EFFECT CANNOT HE CUT DOWN HY THE PROVISO . 3. SCHEME OF THE INCOME TAX ACT MANDATES AND CONTEMPLATES ONLY ONE ASSESSMENT ORDER FOR ONE ASSESSMENT YEAR EXCEPT WHERE THE LAW SPECIFICALLY PROVIDE FOR ADJUDICATION OF ISSUES DIFFERENTLY AS WAS EARLIER PROVIDED U/S 158BC AND 158BD OF THE ACT. VERY CLEARLY V IEW OF THE TRIBUNAL THAT EXCEPT IN THE CASE OF ABATEMENT EARLIER ORDER PASSED U/S 143(3) OR ! 47 AS WELL AS SUBSEQUENT ORDERS PASSED U/S 153A OR U/S 153C WILL SUBSIST ON THEIR OWN NEEDS SERIOUS RECONSIDERATION BECAUSE THE TRIBUNAL HAS MIXED UP AND LINKED 63 TH E ISSUE OF ABATEMENT ONLY TO THE FINDING OF INCRIMINATING MATERIAL IN THE SEARCH WHICH IS NOT EVEN INDICATED IN THE LAW AS CONTAINED U/S 153A OR U/S 153C. TRIBUNAL BENCHES WHILE DECIDING THE CASES HAVE UNFORTUNATELY FAILED TO APPRECIATE THAT LEGISLATIVE IN TENT AS GETTING DECIPHERED FROM THE LANGUAGE OF SECTION 153A IS ABATEMENT OF THE PENDING PROCEEDINGS JUST TO AVOID MULTIPLE PROCEEDINGS AND NOTHING MORE WHICH EVEN FINDS SUPPORT FROM THE DELHI HIGH COURT JUDGMENT DATED 07 - 08 - 2012 IN THE CASE OF ANIL BHATIA WHERE IT HELD THAT U/S 153A AO IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF 6 ASSESSMENT YEARS IN SEPARATE ASSESSMENT ORDERS WHICH MEANS THERE CAN HE ONLY ONE ASSESSMENT ORDER I.R.O EACH OF 6 ASSESSMENT YEARS IN WHICH HOTH DISCLOSED AND UNDISCL OSED INCOME WOULD HE BROUGHT TO TAX. 4 VERY CLEARLY INTERPRETATION GIVEN BY THE TRIBUNAL IS NOT IN CONFORMITY WITH THE HIGH COURT JUDGMENT IN ANIL BHATIA CASE. TRIBUNAL BENCHES HAVE NOT APPRECIATED THAT EVEN U/S 147 WHOSE SCOPE IS STILL NARROWER THE LAW, AS REPEATEDLY EXPLAINED EVEN BY THE SUPREME COURT, ALSO PROVIDES FOR THE ASSESSMENT OF INCOME NOT EVEN INDICATED IN THE REASONS RECORDED TO RE - OPEN. IN VIEW OF THE ABOVE REVENUE PRAYS TO ADJUDICATE THE PRESENT APPEAL IN VIEW OF THE SPECIFIC FACTS AND SUBM ISSIONS AS BROUGHT OUT IN THE PRESENT SUBMISSION. 64 32. THE LD. CIT - DR ALSO SUBMITTED WRITTEN OBJECTIONS REGARDING DECISIONS RELIED BY THE LD. AR QUA APPLICABILITY OF DICTA ON PROPOSITIONS OR RATIO OF THESE JUDGMENTS AND ORDERS OF HON'BLE SUPREME COURT, HON'BLE HIGH COURT AND HON'BLE JURISDICTIONAL HIGH COURT OF DELHI, WHICH ARE BEING REPRODUCED BELOW FOR THE SAKE OF COMPLETENESS: I. BEFORE ADVERTING TO THE JUDGMENTS/DECISIONS RELIED BY THE AR, HON BLE IS PRAYED TO KINDLY NOTE THAT -- A DECISION IS AV AILABLE AS A PRECEDENT ONLY IF IT DECIDES QUESTION OF LAW: AS HELD IN (I) MEHBOOB DAWOOD SHEIKH V. STATE OF MAHARASHTRA{ (2004) 2 SCC 362 PARA 12} (II) SURINDER KUMAR V. STATE OF PUNJAB V. {194 ITR 434 SC)}. -- (I) ONLY RATIO DECIDENDI IS BINDING; -- (II) OBSERVATIONS (OBITER DICTA ) HAVE NO BINDING FORCE: AS HELD IN (I) REKHA MUKERJEE V. ASHISH K. DAS (2005) 3 SCC 427; 440 - 47 (PARA 29); (II) ORIENT PAPER AND INDS. LTD. V. STATE IF IRUSSA AIR 1991 SC 672}. (III) UOI VS. BHANWANTI DEVI (1996) 6 SCC 44 PARA 9; (IV) DIVISIONAL CONTROLLER, KSRTC V. MAHADEVA SHETTY (2003) 7 SCC 197, 206 (PARA 23); 65 -- DECISION APPLICABLE TO FACTS OF THE CASE IS NOT TO BE TREATED AS A PRECEDENT: AS HELD IN (I) NATIONAL INS. CO. LTD. V. SWARNA SINGH (2004) 3 SCC 297. -- OBSERVATION OR SIMPLY WHAT WAS DONE IN A GIVEN CASE, WITHOUT LAYING DOWN THE LAW CANNOT BE READ AS A PRECEDENT, AS HELD IN COMMON CAUSE V. UOL (2004) 5 SCC 222, 223 (PARA 6)}. - - JUDGMENT TO BE APPLIED SHOULD NOT BE PER INCURIAM: A S HELD IN MUKESH K. TRIPATHI V. SR. DM LIC (2004) 8 SCC 387 396 (PARA 23). - - JUDGMENT TO BE APPLIED SHOULD NOT BE SUB SILENTIO . AS HELD IN ( I ) STATE OF UP SYN THETICS & CHEMICALS (1991) 4 SCC 139 SC; ( II ) AMRIT DAS V. STATE OF BIHAR (2000) 5 SCC 488 PARA 20. II THE DECISIONS BEING RELIED UPON BY THE AR AS BEING DISCUSSED BELOW ARE THE ONES WHICH WERE OBTAINED BY SUPPRESSING THE VITAL FACT THAT BEFORE THE AO THERE WAS NO CHALLENGE TO HIS JURISDICTION ON THE GROUNDS IN THESE CASE (I) THAT THERE WAS NO INCRIMINATING MATERIAL OR (II) THAT YEARS IN WHICH ASSESSMENT WERE FRAMED WERE OUTSIDE THE PURVIEW OF 6 YEARS CONTEMPLATED U/S 153C OR (III) THAT THERE WAS NO DOCUMENT FOUND WHICH BELONGED TO THEM SO AS TO INVOKE 153C. 66 SINCE THE JURISDICTION OF THE AO HOVERING AROUND THE ABOVE ASPECTS WAS NOT CHALLENGED WITHIN THE TIME PRESCRIBED U/S 124 IT WAS NOT PERMISSIBLE TO RAISE THESE ISSUES LATER BEFORE THE CIIT(A)/ITAT/HC. (II) TRIBUNAL DECISIONS CANNOT BE USED AS PRECEDENT BECAUSE THEY RUN CONTRARY TO TRIBUNAL S OWN DECISION IN APOORVA EXTRUSIONS P. LTD. (ON WHETHER ASSESSTT WAS HEY AND 6 YEARS MENTIONED U/S 153C ETC.) AND ALSO CONTRARY TO WHAT WAS HELD BY THE JURISDICTIONAL HIG H COURT IN (I)SSP AVIATIONS LTD; (II) CHETAN DAS LACHHMAN DAS; (III) MADUGULA VENU; (IV) FILATEX INDIA LTD; (V) ANILA BHATIA. (II) SSP AVIATION LTD. (346 ITR 177 DELHI HIGH COURT). PARA 17 OF THE ORDER RELIED BY THE AR ..ASSESSING OFFICER HAVING JURISDICTION OVER THE OTHER PERSON TO FOLLOW THE PROCEDURE PRESCRIBED HY SECTION 153A IN AN ATTEMPT TO ENSURE THAT THE INCOME REFLECTED HY THE DOCUMENT HAS B EEN ACCOUNTED FOR HY SUCH OTHER PERSON. IF HE IS SO SATISFIED AFTER OBTAINING THE RETURNS FROM SUCH OTHER PERSON FOR THE 6 ASSESSMENT YEARS , THE PROCEEDINGS WILL HAVE TO B E CLOSED . A RE CLEARLY OBITER AND THIS WOULD BECOME CLEAR FROM (I) PARA 15 WHERE HIGH COURT CLEARLY HELD THAT ...THERE IS NO REQUIREMENT IN SECTION 153 C(I) THAT THE ASSESSING OFFICER SHOULD ALSO B E SATISFIED THAT SUCH VALUABLE ARTICLES OR B OOKS OF ACCOUNTS OR DOCUMENTS BELONGING TO THE OTHER PERSON MUST B E SHO WN TO CONCLUSIVELY REFLECT OR DISCLOSE ANY UNDISCLOSED INCOME, 67 AND (II) PARA 7 ..THE MAIN CONTENTION OF THE PETITIONER IS THAT THE ASSESSING OFFICER HAS ILLEGALLY ASSUMED JURISDICTION U/S 153C READ WITH SECTION 153A OF THE ACT, THAT THERE WAS NO UNDISCLOSED INCOME TO T HE ASSESSED IN THE PETITIONER S HANDS AND THEREFORE A WRIT OF CERTIORARI SHOU LD HE ISSUED TO QUASH THE PROCEEDINGS AS NULL AND VOID . (III) IF THE HIGH COURT WANTED TO HOLD SO (AS CONTENDED BY THE AR), THE PROCEEDINGS/ASSESSMENT FOR THE YEARS FOR WHICH THERE WAS NO SEIZED MATERIAL AS REFERRED IN SATISFACTION NOTE AT ALL WOULD HAVE BEEN QUASHED. (IV) THERE WAS NO CONTROVERSY BEFORE THE HIGH COURT AS TO WHICH 6 YEARS ARE TO BE CONSIDERED WHILE MAKING ASSESSMENT U/S 153C OF THE ACT AND HENCE JUDGMENT CANNOT BE RELIED OR REFERRED TO WHILE DECIDING THE PRESENT APPEAL. IMPORTANT FACT TO BE TAKEN NOTE OF JURISDICTION OF IS THAT THE AO TO GO AHEAD WITH THE ASSESSMENT WAS QUESTIONED BECAUSE OF THE ABSENCE OF INCRIMINATING MATERIAL. FURTHER IN THE SATI S FACTION N OTE DRAWN BY THE AO (I) DOCUMENTS REFERRED WERE ONLY PERTAINING TO AY 07 - 08 & 0 8 - 09 (II) SATISFACTION NOTE DID NOT SHOW ANY DENIAL QUA DOCUMENTS ON THE PART OF THE PARTY SUBJECTED TO 132. 68 (III) SATISFACTION NOTE DOES NOT SHOW ANY SATISFACTION RECORDED IN THE CASE OF PARTY SUBJECTED TO 132. (III) KURELE PAPER MILS P. LTD. (DELHI HIGH COURTORDER DATED 06 - 07 - 201 5 ) (IV) JASJIT SINGH (DELHI HIGH COURT IN ITA NO. 337 / 2 015 ) (V) GRG STEEL P. LTD. (DELHI HIGH COURT ORDER DATED 04 - 08 - 2013) (VI) VRINDAVAN FARMS P. LTD. (DELHI HIGH COURT ORDER 12 - 08 - 2015) THESE ARE NOT APPLICABLE AS IN THESE CASES NEITHER QUESTION OF LAW WAS FORMULATED NOR ANSWERED AND FOR THIS RELIANCE IS PLACED ON (I) K.L. MANHAS { W.P.(C) NO. 4079/2013} IN PARA 9 HOLDING THAT MERE PRIMA FACIE OBSERVATION OF THE COURT, NOT DEALING WITH THE ISSUE ON MERITS, DOES NOT CONSTITUTE A BINDING PRECEDENT. (II) MEHBOOB DAWOOD SHEIKH V. STATE OF MAHARASHTRA (2004) 2 SCC 362 PARA 12 (III) SATWANT SINGH V. STATE OF PUNJAB V. {194 ITR 434 SC)} - WHERE IT WAS HELD THAT A DECISION IS AVAILABLE AS PRECEDENT ONLY IF IT DECIDES A QUESTION OF LAW. (VII) MGF AUTOMOBILES LTD. DELHI H IGH COURT (ORDER DT. 13 - 08 - 2015 ) IN ITA NO. 1 3 / 2 014 & 14/2014 . 69 THIS WAS THE CASE WHERE THE ORDER OF THE AO WAS ABSOLUTELY SILENT ON THE IMPORTANT FACT AS TO ON WHAT MATERIAL OR EVIDENCE THE ADDITION/DISALLOWANCE WAS BASED AND THIS PROMPTED THE HIGH COURT TO DISMISS REVENUE S APPEAL. CLEARLY, THE JUDGMENT IS MORE ON FACTS THAN ON LAW. THIS JUDGMENT BESIDES BEING INCONSISTENT WITH ITS OW N EARLIER DECISIONS IN SSP AVIATIONS, FILTAX LTD; CHETAN DAS LACCHMAN DAS AND ANIL BHATIA ETC. IS THE ONE CASE WHERE NO CASE LAW, NO LEGAL PROVISIONS ARE FOUND REFERRED OR DISCUSSED & HENCE CANNOT BE TAKEN AS A BINDING PRECEDENT AS HELD IN CIT V. B.R. CONS TRUCTIONS { 202 ITR AP FB}. (VIII) KABUL CHAWLA. DELHI HIGH COURT (ORDER DATED 28 - 08 - 2013 ): JUDGMENT CANNOT BE RELIED AS A BINDING PRECEDENT BECAUSE; (I) IN THIS JUDGMENT (WHICH DEALS WITH JURISDICTIONAL ISSUES OF INCRIMINATING MATERIAL ETC. WHEREBY AO S AUTHORITY IS BEING CHALLENGED) IS IN IGNORANCE OF APPLICABLE PROVISIONS OF 124 WHICH ACT AS A BAR TO RAKE UP JURISDICTIONAL ISSUES LATER. SINCE THIS DECISION IS RENDERED WITHOUT REFERENCE TO THE STATUTORY BARS, IT CANNOT BE USED AS A BINDING PRECEDENT AS HELD IN STATE V. RATAN LAI ARORA (2004) 4 SCC 590. (II) UNLIKE THE PRESENT APPEALS, THIS JUDGMENT IS NOT IN THE CONTEXT OF SECTION 153C. (III) JUDGMENT NEITHER SHOWS FORMULATION OF QUESTIONS NOR 70 SHOWS AS TO WHAT ALL QUESTIONS OF LAW WERE RAISED BY THE REVE NUE. (IV) IT DOES NOT CONSIDERS ITS OWN JUDGMENT IN SSP AVIATION LTD WHICH WAS DIRECTLY ON SECTION 153C. (V) IT HOLDS SOMETHING NOT EVEN INDICATED IN THE LAW & HENCE GOES AGAINST THE PLAIN WORDS OF LAW. (VI) IT RELIED HEAVILY ON CERTAIN PORTIONS FROM ITS J UDGMENTS IN CHETAN DAS LACHHMAN DAS & ANIL BHATIA S CASE WHICH WERE MERE OBSERVATIONS I.E. OBITER AND NOT THE STATEMENTS OF LAW AS STATED IN ITS EARLIER JUDGMENTS IN SSP AVIATIONS LTD; MADUGULA VENU & FILATEX LTD. (VII) MATERIAL ASPECT THAT PROCEEDINGS FOR AY 6 - 07 WERE NOT COMPLETE BECAUSE TIME FOR ISSUING NOTICE U/S 143(2) WAS STILL AVAILABLE WITH THE AO, GOT IGNORED. (VIII) IMPORTANT ASPECT GOT IGNORED THAT KABUL CHAWLA WHILE ACCEPTING THE ADDITION MADE OF 50 LACS ON ACCOUNT OF GIFTS WHICH TOO WAS NOT REF ERABLE TO INCRIMINATING MATERIAL FOUND DURING THE SEARCH ON THE OTHER ADDITION MADE U/S 2(Z2)(E) WAS BEING CHALLENGED ON PLEA THAT IT WAS NOT REFERABLE TO SEARCH FINDING. (VI) UNLIKE KABUL CHAWLA S CASE WHERE THERE WAS NO SEARCH MATERIAL, IN THE PRESENT APPEALS (AS SEEN FROM AO S ORDER) THERE WAS MATERIAL IN 71 THE SHAPE OF STATEMENTS RECORDED U/S 132(4) DURING THE SEARCH AND ALSO THE OTHER MATERIAL COLLECTED DURING THE CURRENCY OF THE SEARCH ITSELF. (IX) KUSUM GUPTA DELHI HC: CANNOT BE RELIED UPON BECAUSE (A) HERE IN THIS CASE NO SUBSTANTIAL QUESTION OF LAW WAS FORMULATED AS REQUIRED U/S 260A. (B) IT JUST FOLLOWS ITS JUDGMENT IN KABUL CHAWLA( WHICH IS SHOWN TO BE NOT APPLICABLE IN THIS NOTE). (X) PEPSICO INDIA HOLDINGS P LTD F 370 ITR 29 'I DELHI HIGH COURT) . AS ALREADY SUBMITTED IN PARA 2.2(PAGE 5 OF WRITTEN NOTE) THE ABOVE DECISION WAS GIVEN IN A WRIT AND WAS FUNDAMENTALLY ON FACTS WHERE THE HIGH COURT FOUND NO DOCUMENTS TO BE BELONGING TO THE PETITIONER. JUDGMENT BEING ON FACTS, CONCESSION AND ALSO FOR THE REASON THAT THIS NEITHER SHOWS AS TO WHAT ALL QUESTIONS OF LAW WERE RAISED NOR FORMULATES SUBSTANTIAL QUESTIONS OF ITS OWN, IS NOT AVAILABLE TO BE USED AS A BINDING PRECEDENT. ( I ) DSL PROPERTIES DELHI TRIB; ( II ) RL ALLIED INDUSTRIES {167 TTT 20 1 ; ( III ) CHAIN ROOP BAID 134 ITD 237 DEB NOT AVAILABLE AS PRECEDENTS BECAUSE; 72 (A) THESE ARE THE DECISIONS (E.G. DSL) OBTAINED BY SUPPRESSING THE FACT THAT THE GROUNDS ( ON CHALLENGING THE VALIDITY OF SATISFACTION NOTE OR THE ISSUE OF LIMITATION ( YEAR FALLING BEYO ND 6 YEARS ) WERE OF THE NATURE OF ADDITIONAL GROUND AS THEY WERE NEVER RAISED BEFORE AO/CIT(A) AND HENCE REQUIRED SPECIFIC LEAVE OF ITAT WHICH WAS NOT OBTAINED. (B) THESE DECISIONS (DSL) RUNS CONTRARY TO DELHI HIGH COURT ORDER IN SSP AVIATIONS LTD. WHERE TOO SIMILAR SATISFACTION NOTE WAS INVOLVED. (C) THE DSL DECISION IS SEEN OBTAINED BY SUPPRESSING THE FACT THAT THESE JURISDICTIONAL OBJECTIONS WERE NOT RAISED WITHIN TIME MENTIONED U/S 124. (D) THIS IS CONTRARY TO LATER DECISION OF THE TRIBUNAL IN APOORVA EXTRUSION LTD. WITHOUT PREJUDICE TO THE ABOVE THIS DECISION IS FOUND TO BE RESULTING IN ABSURDITY WHEREBY BY THE SEARCH ACTION CERTAIN YEARS/TRANSACTIONS WOULD GET COVERED WHICH BY THE TIME OF 153C HAD NOT EVEN TAKEN PLACE. ESPECIALLY IN CASE OF RL ALLIED INDUSTRIES IT WOULD BE NOTICED THAT ADJUDICATION DONE BY THE ITAT IS NOT EVEN BORNE OUT OF THE GROUNDS (THAT ORDER IS TIME BARRED) RAISED BEFORE THE ITAT. (XIV) J ASJIT SINGH DELHI TRIB.FLTA 1436/DEL/2012}: NOT AVAILABLE AS A PRECEDENT BECAUSE 73 (A) IT IS OBTAINED BY SUPPRESSING THE FACT THAT AO S JURISDICTION WAS NOT CHALLENGED WITHIN 124 TIME; (B) CONTROVERSY THERE WAS DIFFERENT ABOUT WHETHER ORDER TO BE PASSED U/S 143(3) OR U /S 153C. (C) ADJUDICATIONS OF 6 YEARS TRAVELS BEYOND THE CONTROVERSY ( EVEN IN ADDL. GROUND) RAISED BEFORE ITAT (XV) BRIGHTWAYS HOUSING & LAND DEVELOPERS LTD. (ITA 5117 - 18 /DEL/ 2013 (XVI) DEVI DAYAL PETRO CHEMICALS P. LTD. ITA NO. 4335 - 36/DEL/2013 NOT AVAILABLE AS PRECEDENT BECAUSE THESE ARE (A) OBTAINED BY SUPPRESSING THE FACT THAT AO S JURISDICTION WAS NOT CHALLENGED WITHIN 124 TIME; (B) RUN CONTRARY TO DELHI HIGH COURT ORDER IN SSP AVIATION LTD. WHERE TOO SATISFACTION NOTE DRAWN JUST REFERRED DOCUMENTS CONCERNIN G TWO AYS & STILL THE HIGH COURT DID NOT ALLOW THE WRIT PETITIONS. (XVII) SUNITA BAI { 68 SOT 98 URO - CANNOT BE RELIED BECAUSE IT IS (A) CONTRARY TO ITS FINDING IN PARA 13 SECTION DOES NOT REQUIRE THE DOCUMENT MUST HE INCRIMINATING DOCUMENT . (B) RELIED ON CERTAIN OBSERVATIONS GIVEN IN DELHI HIGH JUDGMENTS IN CHETANDAS LACCHMAN DAS & ANIL BHATIA WHICH WERE ACCEPTED TO BE OBITER BUT STRANGELY STILLED RELIED ON 74 THEM IN ADJUDICATION WITHOUT APPRECIATING THAT THESE OBSERVATIONS DID NOT CARRY PRECEDENTI AL VALUE. (C) ADJUDICATION THAT ADDITION IS NOT THE RESULT OF INCRIMINATING DOCUMENT. TRAVEL BEYOND THE GROUNDS RAISED. (D) OBJECTION NOT RAISED WITHIN SECTION 124 TIME. (XVIII ) LAKSHMI SINGH { 68 SOT 26}: NOT APPLICABLE FOR THE REASONS GIVEN IN CASE OF SUNITA BAI ABOVE, (XIX ) NATURAL PRODUCTS TECH { 15 3 ITD S8{ : NOT APPLICABLE BECAUSE; (A) BEFORE ITAT ONLY TWO RELEVANT GROUNDS WERE THAT (I) ORDER IS NOT BASED ON INCRIMINATING MATERIAL AND (II) ORDER IS WITHOUT JURISDICTION; AND RELIEF GIVEN IN VIEW OF RATIO DECIDENDI IN PEPSI HOLDINGS WITHOUT APPRECIATING THAT THERE WAS NO RATIO THERE BECAU SE THIS DECISION WAS JUST ON PECULIAR FACTS. (B) HERE IN THE PRESENT APPEALS ADDITIONS/ORDER IS BASED UPON INCRIMINATING MATERIAL BEING STATEMENTS RECORDED U/S 132(4) OF THE ENTRY OPERATOR AND ALSO OF ASHOK MINDA. (C) DSL PROPERTIES DECISION OF DELHI ITAT RELIED WAS NOT AVAILABLE AS A PRECEDENT. (D) RUNS CONTRARY TO SSP AVIATIONS (DELHI HIGH COURT) WHERE TOO SIMILAR SATISFACTION WAS INVOLVED. 75 (E) OBJECTION TO JURISDICTION WAS NOT RAISED WITHIN 124 PRESCRIBED TIME. (XX) QUALITRON COMMODITIES LTD {167 TTT 3S3 DEL}: CANNOT BE RELIED UPON FOR THE REASONS THAT; (I) COS OF THE ASSESSEE WERE ENTERTAINED BECAUSE OF SUPPRESSION OF THE CRUCIAL FACT THAT CO WAS NOT ARISING OUT OF THE ORDER OF THE CIT(A) WHEREBY PURE LEGAL QUESTION CHALLENGING THE VALIDITY OF ASSESSMENT WAS BEING CHALLENGED. {REFER AHMEDABAD ITAT DECISION IN SANDEEP M PATEL 22 TAXMAN.COM 288}. (II) CO FILED WAS LATE AND WITHOUT GIVING ANY REASON FOR DELAY IT WAS ENTERTAINED. (III) RUNS CONTRARY TO DELHI HIGH COURT ORDER IN SSP AVIATION LTD. (IV) MATERIAL FACT THAT AO S JURISDICTION WAS NOT CHALLENGED EARLI E R WITHIN 124 TIME WAS SUPPRESSED. (V) DECISION RELIES ON DELHI HIGH COURT ORDER (PEPSICO HOLDINGS) WHICH WAS NOT AVAILABLE AS PRECEDENT. (XXI) TANVIR COLLECTIONS P. LTD. 168 TTT US DEB NOT APPLICABLE BECAUSE; 76 (A) IT RUNS CONTRARY TO DELHI HIGH COURT ORDER IN SSP AVIATIONS LTD; (B) IT RELIED ON CERTAIN PORTION OF SSP AVIATION LTD. WHICH WAS JUST OBITER NOT TO BE USED AS A PRECEDENT. (C) IT RELIED ON ITS DECISION IN INLAY MARKETING & AKASH AROGYA WHICH WERE OBTAINED ON SUPPRESSION OF MATERIAL F ACT THAT OBJECTION WAS NOT RAISED WITHIN 124 TIME AND THAT EVIDENCES BEING ADDUCED WERE OF THE NATURE OF ADDITIONAL EVIDENCE. (D) OBJECTION CHALLENGING THE JURISDICTION OF THE AO WAS RAISED WITHIN 124 TIME. ( XII ) SATYAM FOOD SPECIALITIES P. LTD {68 SOT DEL}: N OT RELEVANT AND APPLICABLE AT ALL BECAUSE THERE RELIEF IS GIVEN ON MERITS AND NOT ON THE LEGAL GROUND OF VALIDITY OF 153C ASSESSMENT. 33. THE LD. AR PLACED WRITTEN REJO IN D E R AND REBUTTAL TO THE ABOVE N OTED WRITTEN SUBMISSIONS AND THE CONTENTIONS OF THE LD. CIT - DR WHICH IS BEING REPRODUCED BELOW: ( I ) THAT THE ASSESSEE IS PRECLUDED FROM RAISING THE ISSUE OF JURISDICTION AT THIS STAGE, MORE PARTICULARLY WHEN SUCH OBJECTION WAS NOT RAISED BEFORE THE LEARNED ASSESSING OFFICER AND AS PER THE PROVISIONS OF SECTION 124(2) TO (4), 77 THE ASSESSEE - APPELLANT IS D EBARRED FROM RAISING SUCH ISSUES BEFORE HON BLE ITAT AND FURTHER, PARTICIPATION/ ACQUIESCENCE BY ASSESSEE BEFORE LEARNED AO WILL RESULTS IN GIVING UP THE JURISDICTIONAL ISSUE. ( II ) THAT AY 2006 - 07 AND 2007 - 08 ARE NOT BEYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT, AS THE CUT - OFF DATE HAS TO BE RECKONED FROM THE DATE OF SEARCH AND NOT FROM THE DATE OF HANDING OVER OF THE DOCUMENTS BY THE AO OF SEARCHED PERSON TO THE AO OF OTHER PERSON, IN STATING SO, LEARNED CIT DR PLACED RELIANCE ON PROVISIONS OF SECTION 153C(2)(A) OF THE ACT AND ALSO ON THE ORDER OF HON BLE ITAT, DELHI IN THE CASE OF DCIT VS APOORVA EXTRUSION PVT. LTD. IN ITA NO. 6964/DEL/2014 AND ALSO STATED THAT JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS JASJIT SINGH IN ITA NO. 337/2015 IS NOT AVAILABLE AS PRECEDENT AS NEITHER QUESTION OF LAW WAS FRAMED NOR ANSWERED AS REQUIRED UNDER SECTION 260A OF THE ACT. ( III ) THAT THERE IS NO REQUIREMENT OR MANDATE IN LAW TO MAKE ADDITIONS ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH, RATHER, TOTAL INCOME HAS TO BE ASSESSED BY LEARNED ASSESSING OFFICER AND THUS, ADDITIONS CAN BE MADE BEYOND INCRIMINATING MATERIAL AS WELL AND IN DOING SO, THE LEARNED CIT DR RELIED ON JUDGMENTS OF HON BLE DELHI HIGH COURT ON THE CASES OF CIT VS CHETAN DASS LACHMAN DASS REPORTED IN 211 TAXMAN 61 AND FILATEX INDIA LTD. VS CIT REPORTED IN 229 TAXMAN 555 AND ALSO ON MADUGULA VENU VS CIT REPORTED IN 215 TAXMAN 298. ( IV ) THAT THERE WERE MANY OTHER DOCUMENTS FOUND DURING THE COURSE OF SEARCH ON MINDA GROUP , WHICH HAVE NOT BEEN RECORDED IN THE SATISFACTION NOTE AND AS SUCH, THE ARGUMENT OF THE ASSESSEE - APPELLANT THAT NO DOCUMENT 78 BELONGING TO ASSESSEE - APPELLANT WAS FOUND DURING THE COURSE OF SEARCH IN MINDA GROUP IS NOT CORRECT. ( V ) THAT NO SUCH ARGUMENTS W ERE RAISED BY ASSESSEE - APPELLANT IN STATEMENT OF FACTS AND GROUNDS OF APPEAL BEFORE LEARNED CIT (A). ( VI ) LEARNED CIT DR ALSO DISTINGUISHED THE CASE LAWS BEING REFERRED BY THE ASSESSEE - APPELLANT AND FURTHER, PLACED RELIANCE ON VARIOUS CASE LAWS WHICH WOUL D BE DISTINGUISHED BY THE ASSESSEE - APPELLANT IN SUBSEQUENT PARAGRAPHS. 3 REBUTTAL OF THE ASSESSEE - APPELLANT : 3.1 THAT FIRST AND FOREMOST, THE ARGUMENT OF LEARNED CIT DR THAT THE ASSESSEE IS PRECLUDED FROM RAISING THE ISSUE OF JURISDICTION AT THIS STAGE, MORE PARTICULARLY WHEN SUCH OBJECTION WAS NOT RAISED BEFORE THE LEARNED ASSESSING OFFICER AND AS SUCH, AS PER THE PROVISIONS OF SECTION 124(2) TO (4), THE ASSESSEE - APPELLANT IS DEBARRED FROM RAISING SUCH ISSUES BEFORE HON BLE ITAT IS CONTRARY TO THE STATUTORY PROVISIONS OF THE ACT, AS SECTION 124 OF THE ACT PERTAINS TO TERRITORIAL JURISDICTION OF AN ASSESSING OFFICER VESTED UNDER SUB - SECTION (1) OR (2) OF SECTION 120. AN OBJECTION TO SUCH JUR ISDICTION CAN BE RAISED IN TERMS OF SECTION 124(2) AND IN TERMS OF SUB - SECTION (3) OF SECTION 124, RIGHT TO RAISE SUCH OBJECTION SHALL BE FOREGONE BEYOND THE STAGES MENTIONED THEREIN. THE SAID PROVISIONS ARE CLEARLY CONCERNING WITH THE DISPUTE OF THE ASSES SEE WITH RESPECT TO THE TERRITORIAL JURISDICTION OF THE ASSESSING OFFICER AND HAS NO RELEVANCE IN SO FAR AS THE INHERENT JURISDICTION FOR PASSING AN ORDER OF ASSESSMENT UNDER SECTION 153A OF THE ACT IS CONCERNED AND THUS, WHEN ASSESSEE - APPELLANT CONTENDS THAT THE ASSESSMENTS MADE BY LEARNED AO ARE BEYOND THE PURVIEW OF SECTION 153C OF THE ACT AND ADDITIONS MADE ARE BEYOND THE SCOPE OF PROVISIONS OF SECTION 153C OF THE ACT R.W.S. 153 A OF THE ACT THERE IS NO ISSUE OF 79 TERRITORIAL JURISDICTION INVOLVED, RATH ER IT IS A CHALLENGE TO INHERENT JURISDICTION OF LEARNED AO AND THERE IS NO BAR IN LAW TO CHALLENGE SUCH JURISDICTION AT ANY STAGE OF JUDICIAL HIERARCHY . IN SUPPORT OF THE AFORESAID, THE ASSESSEE - APPELLANT WOULD SEEK TO PLACE ITS RELIANCE ON FOLLOWING JU DGMENTS: ( I ) CIT VS RAMESH D PATEL (GUJARAT HIGH COURT) REPORTED IN 362 ITR 492. PARA 8. SECTION 124 VERTAINS TO TERRITORIAL JURISDICTION OF AN ASSESSING OFFICER VESTED UNDER SUB - SECTION (1) OR (2) OF SECTION 120. AN OBJECTION TO SUCH JURISDICTION CAN BE RA ISED IN TERMS OF SECTION 124(2). IN TERMS OF SUB SECTION (3) OF SECTION 124. RIGHT TO RAISE SUCH OBJECTION SHALL BE FOREGONE BEYOND THE STAGES MENTIONED THEREIN. THE SAID PROVISIONS ARE CLEARLY CONCERNED WITH THE DISPUTE OF THE ASSESSEE WITH RESPECT TO THE TERRITORIAL JURISDICTION OF THE ASSESSING OFFICER AND HAVE NO RELEVANCE IN SO FAR AS THE INHERENT JURISDICTION FOR PASSING AN ORDER OF ASSESSMENT UNDER SECTION 153A IS CONCERNED, WHEN NO SEARCH AUTHORIZATION UNDER SECTION 132 WAS ISSUED OR REQUISITION UNDER SECTION 132A WAS MADE. ( II ) M/S COMPUTER ENGINEERING SERVICES INDIA (P) LTD. VS ACIT (DELHI ITAT) IN ITA NOS. 5874 TO 5878/DEL/2015 (ENCLOSED AS ANNEXURE - A). PARA 34. BEFORE PARTING WITH THE MATTER, WE WOULD LIKE TO DEAL WITH THE CONTENTION OF LD CIT - DR THAT EXTANT PLEA OF AMALGAMATION AS RAISED BY ASSESSEE IS HIT BY PROVISIONS 80 OF SECTION 124(3) OF THE ACT. IN THIS REGARD, HE VOCIFEROUSLY ARGUED AND TRIED TO PERSUADE US THAT SAID PROVISION CLEARLY COMES IN THE WAY OF ASSESSEE T O RAISE THE PLEA OF ASSESSMENT ON NON EXISTING COMPANY WITHOUT RAISING THE SAME BEFORE AO AT A LATER STAGE AND HEAVILY RELIED ON FULL BENC H DECISION OF GUWATHI HIGH COURT IN SMT. SOHANI DEVI JAIN REPORTED IN 109 ITR 130. AFTER MUCH DELIBERATION, WE ARE UNA BLE TO SUBSCRIBE TO THE VIEWS OF LD CIT - DR FOR THE SIMPLE REASON THAT HON BLE JURISDICTIONAL DELHI HI G H COURT IN THE CASE OF S.S.AHLUWALIA IN ITA 255/2002 (ORDER DATED 14/3/2014) REPORTED IN 2014 (88) CCH (158) DELHI H. C. IN TURN RE IVINS ON ANOTHER DELHI HISH COURT DECISION IN CASE OF K.K. LOOMBA REPORTED IN 241 ITR 152 HAS CLEARLY HELD THAT SECTION 124 HAS APPLICABILITY TO ONLY TERRITORIAL JURISDICTION ISSUE AND NOT TO OTHER JURISDICTIONAL ISSUES WHEN THERE IS INHERENT LACK OF JURISDICTION. FURTHER, WE WISH TO COMMEMORATE THE TRITE PRINCIPLE THAT AN ORDER WHICH IS NULLITY IN THE EYES OF LAW, PLEA RELATING TO THE SAME CAN BE RAISED AT ANY STAGE EVEN DURING COLLATERAL PROCEEDINGS AS EXPLAINED IN LEADING CASE LAW OF GUJARAT HIGH COURT IN CASE O F P. V.DOSHI 113 ITR PAGE 22. THE HON BLE DELHI HIGH COURT IN THE CASE OF S.S. AHLUWALIA (SUPRA) HAS HELD AS UNDER: 36. IN BUDHIA SWAIN AND OR S. VS. GOPINATH DEV AND OR S. (1999) 4 SCC 396, IT WAS HIGHLIGHTED THAT DISTINCTION EXISTS AND WAS WELL RECOGNI ZED BETWEEN LACK OF JURISDICTION AND MERE ERROR IN EXERCISE OF JURISDICTION. LACK OF JURISDICTION STRIKES AT THE VERY ROOT OF THE ACTION/ACT AND WANT 81 OF JURISDICTION MIGHT VITIATE PROCEEDINGS RENDERING THE ORDERS PASSED AND EXERCISE THEREOF A NULLITY. BUT A MERE ERROR IN EXERCISE OF JURISDICTION WOULD NOT VITIATE THE LEGALITY AND VALIDITY OF THE PROCEEDINGS AND THE SAID ORDER WAS VALID UNLESS SET ASIDE IN THE MANNER KNOWN TO LAW BY LAYING A CHALLENGE, SUBJECT TO LAW OF LIMITATION. THE FOLLOWING PORTION OF H IRA LAI PATNI VS. KALI NATH, AIR 1962 SC 199 WAS QUOTED ....THE VALIDITY OF A DECREE CAN BE CHALLENGED IN EXECUTION PROCEEDINGS ONLY ON THE GROUND THAT THE COURT WHICH PASSED THE DECREE WAS LACKING IN INHERENT JURISDICTION IN THE SENSE THAT IT COULD NOT HA VE SEISIN OF THE CASE BECAUSE THE SUBJECT MATTER WAS WHOLLY FOREIGN TO ITS JURISDICTION OR THAT THE DEFENDANT WAS DEAD AT THE TIME THE SUIT HAD BEEN INSTITUTED OR DECREE PASSED, OR SOME SUCH OTHER GROUND WHICH COULD HAVE THE EFFECT OF RENDERING THE COURT ENTIRELY LACKING IN JURISDICTION IN RESPECT OF THE SUBJECT MATTER OF THE SUIT OR OVER THE PARTIES TO IT. PARA 36. IN THE LIGHT OF THE ABOVE BINDING JURISDICTIONAL HIGH COURT PRECEDENTS, WE DO NOT APPROVE THE OBJECTION TAKEN BY LD CIT - DR THAT THE ASSESSEE S PLEA IS BARRED BY SECTION 124(3) AS SAME IS NOT APPLICABLE TO PRESENT FACTUAL SITUATION. (III) K.K. LOOMBA REPORTED IN 241 ITR 152 (DELHI HC), HAS CLEARLY HELD THAT SECTION 124 HAS APPLICABILITY TO ONLY TERRITORIAL JURISDICTION ISSUE AND NOT TO OTHER JURISDICTIONAL ISSUES WHEN THERE IS INHERENT LACK OF JURISDICTION. 82 : 1.1 THAT SECOND LIMB OF FIRST ARGUMENT BY LEARNED CIT DR WAS THAT PARTICIPATION/ ACQUIESCENCE BY ASSESSEE BEFORE LEARNED AO WILL RESULT IN GIVING UP THE JURISDICTIONAL ISSUE BY THE ASSESSEE , WHICH IS CONTRARY TO THE VIEWS EXPRESSED BY VARIOUS COURTS, WHICH HAVE STATED THAT ISSUES OF INHERENT LACK OF JURISDICTION CAN BE RAISED AT ANY STAGE AND MOREOVER, THE S AID ARGUMENT OF LEARNED CIT DR FALLS FLAT, AS LEARNED CIT (APPEALS) HAS DEALT WITH THE SAID ISSUES WHICH WERE RAISED BEFORE LEARNED CIT (A) BY ASSESSEE VIDE ITS GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS. THAT IN SUPPORT OF THE AFORESAID PROPOSITION THE ASS ESSEE - APPELLANT WOULD SEEK TO PLACE RELIANCE ON FOLLOWING JUDGMENTS: ( I ) VALVOLINE CUMMINS LTD. VS DCIT (DELHI HC) REPORTED IN 307 ITR 103. ( II ) CIT VS PAI VAIBHAV HOTELS (KARNATAKA HC) IN ITA NO. 2638/ 2005 (ENCLOSED AS ANNEXURE - B). ( III ) P.V. DOSHI VS CIT (GUJAR AT HC) REPORTED IN 113 ITR 22. ( IV ) INVENTORS INDUSTRIAL CORPN. LTD. VS CIT (BOM HC) REPORTED IN 194 ITR 548. ( V ) HEMAL KNITTING INDUSTRIES VS ACIT (CHENNAI TM) REPORTED IN 127 ITD 160. THAT THE SECOND ARGUMENT OF LEARNED CIT DR THAT AY 2006 - 07 AND 2007 - 08 ARE NOT BEYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT, AS THE CUT - OFF DATE HAS TO BE RECKONED FROM THE DATE OF SEARCH AND NOT FROM THE DATE OF HANDING OVER OF THE DOCUMENTS BY THE AO OF SEARCHED PERSON TO THE AO OF O THER PERSON AND JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS JASJIT SINGH IN IT A NO. 337/2015 IS NOT AVAILABLE AS PRECEDENT AS NEITHER QUESTION OF 83 LAW WAS FR AMED NOR ANSWERED AS REQUIRED UNDER SECTION 260A OF THE ACT , IS AGAIN BASED ON MIS CONCEIVED READING OF LAW AND INCORRECT READING OF JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS JASJIT SINGH IN ITA NO. 337/2015, WHEREIN, HON BLE HIGH COURT HAS CATEGORICALLY HELD THAT CUT - OFF DATE FOR ISSUANCE OF NOTICES UNDER SECTION 153C OF THE ACT HAS TO BE RECKONED FROM THE DATE OF HANDING OVER OF THE BOOKS OF ACCOUNTS BY THE AO OF SEARCHED PERSON TO THE AO OF OTHER PERSON AND IF THE SAID FINDING IS APPLIED TO THE FACTS OF THE ASSESSEE - APPELLANT THAN AY 2006 - 07 AND 2007 - 08 WILL BE FOU ND TO BE BEYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT AS SATISFACTION NOTE IN THE INSTANT IS RECORDED ON 09.09.2013 AND NOTICE UNDER SECTION 153C IS ALSO ISSUED ON THE SAME DATE, THEN ONLY CONCLUSION THAT CAN BE DRAWN IS THAT THE ASSESSING O FFICER OF SUCH OTHER PERSON HAS TAKEN OVER THE POSSESSION OF SEIZED DOCUMENT ON 09.09.2013. ACCORDINGLY, AS PER SECTION 153AG), THE ASSESSING OFFICER CAN ISSUE THE NOTICE U/S 143(3) FOR THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED (I.E. FOR THE PURPOSE O F SECTION 153C THE DOCUMENT IS HANDED OVER) AND NOTICE U/S 153C FOR SIX ASSESSMENT YEARS PRECEDING SUCH ASSESSMENT YEARS. NOW, IN THIS CASE, THE PREVIOUS Y EAR IN WHICH THE DOCUMENT IS HANDED OVER I S 1ST APRIL. 2013 TO 31ST MARCH, 2014 I.E. THE ASSESSMENT Y EAR WOULD BE AY 2014 - 15. SIX PRECEDING PREVIOUS YEARS AND RELEVANT ASSESSMENT VEAR WOULD BE AS UNDER : 1.4.2007 TO 31.3.2008 2008 - 09 1.4.2008 TO 31.3.2009 2009 - 10 84 1.4.2009 TO 31.3.2010 2010 - 11 1.4.2010 TO 31.3.2011 2011 - 12 1.4.2011 TO 31.3.2012 2012 - 1 3 1.4.2012 TO 31.3.2013 2013 - 14 3.2.1 THE ARGUMENT OF LEARNED CIT DR THAT IN THE MATTER OF CIT VS JASJIT SINGH (SUPRA), HON'BLE HIGH COURT HAS NEITHER FRAMED ANY QUESTION OF LAW AND NEITHER ANSWERED IT AND AS SUCH, THE SAID JUDGMENT CANNOT BE TAKEN AS A PRECEDENT, IS COMPLETELY MISCONCEIVED AND IS BASED ON COMPLETE MISREADING OF THE JUDGMENT OF HON BLE JURISDICTIONAL HIGH COURT, AS HON BLE HIGH COURT HAS DISMISSED THE APPEAL OF REVENUE IN THE AFORESAID MATTER AND HAS HELD AS FOLLOWS: PARA 3. THE QUESTION RAISED BEFORE THE ITAT WAS WITH REFERENCE TO THE FIRST PROVISO TO SECTION 153C (1). THE ITAT HAS RELIED UPON THE JUDGMENT OF THIS COURT IN SSP AVIATION LTD. V. DEPUTY COMMISSIONER OF INCOME TAX (2012) 252 CTR (DEL) 291, WHICH IN PARA 14 HELD THAT WHILE IN THE CASE OF THE SEARCHED PERSON, THE DATE WITH REFERENCE TO WHICH THE PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF ANY ASSESSMENT YEAR WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS SHALL ABATE SHALL BE THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 1 32 OR THE REQUISITION UNDER SECTION 132A, IN THE CASE OF THE OTHER PERSON (LIKE THE ASSESSEE IN THE PRESENT CASE) 'SUCH DATE WILL BE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITION BY THE ASSESSING OFFICER HAVING JUR ISDICTION OVER SUCH OTHER PERSON . IN THE CASE OF THE OTHER PERSON, THE QUESTION OF PENDENCY AND 85 ABATEMENT OF THE PROCEEDINGS OF ASSESSMENT OR REASSESSMENT TO THE SIX ASSESSMENT YEARS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE. PARA 4. ALTHOUGH, THE ITAT HAS ALSO REFERRED TO ITS OWN DECISION IN THE CASE OF DSL PROPERTIES PVT. LTD., WHICH DECISION IS PENDING CONSIDERATION IN ITA NO. 585 OF 2013 IN THIS COURT, IN WHICH A QUESTION OF LAW HAS BEEN FRAMED, THE DECISION IN SSP AVIATION LTD. (SUPRA) PUTS THE MATT ER BEYOND ALL DOUBT. IN ADDITION, THE COURT HAS BEEN SHOWN BY LEARNED COUNSEL FOR THE RESPONDENT A CIRCULAR DATED 31ST MARCH 2014 ISSUED BY THE CBDT, CONTAINING THE GUIDELINES REGARDING SECTION 153C OF THE ACT. PARA 2.5 OF THE SAID CIRCULAR CLARIFIES AS UN DER: 'THE AO OF THE OTHER PERSON ASSUMES JURISDICTION UNDER SECTION 153C WITH THE RECEIPT OF THE RELEVANT SEIZED MATERIAL FROM THE AO OF THE SEARCHED PERSON. ALSO, A COPY OF THE SATISFACTION RECEIVED FROM THE AO OF THE SEARCHED PERSON IN THIS REGARD WOULD ENABLE HIM TO PROCEED FURTHER IN THE CASE OF THE OTHER PERSON UNDER SECTION 153C. THOUGH THERE IS NO STATUTORY REQUIREMENT FOR THE AO OF SUCH OTHER PERSON TO RECORD ANY SATISFACTION/REASON BEFORE ISSUING NOTICE UNDER SECTION 153C AND PROCEEDING FURTHER, CO NSIDERING THE ABOVE ASPECTS, IT IS ADVISABLE FOR MAINTAINING INSTITUTIONAL MEMORY THAT THE AO RECORDS RECEIPT OF THE SEIZED MATERIAL AND THE SATISFACTION FROM THE AO OF THE SEARCHED PERSON AND SUCH RECORDING/NOTING MAY BE KEPT IN THE ASSESSMENT FOLDER OF S UCH OTHER PERSON. IN CASE, THE AO OF THE SEARCHED PERSON EXERCISES JURISDICTION OVER THE OTHER PERSON ALSO, APPROPRIATE REFERENCING SHOULD BE MADE IN THE RELEVANT ASSESSMENT RECORDS OF SUCH OTHER PERSON. PARA 5. IT MAY BE NOTED THAT IN THE PRESENT CASE SATISFACTION NOTE WAS PREPARED BY THE AO ON 25TH FEBRUARY 2010. CONSEQUENTLY, THE FINDING OF THE ITAT IN THE PRESENT CASE THAT THE ASSESSMENT MADE UNDER SECTION 143(1) OF THE ACT FOR THE AY 86 2009 - 10 WAS NOT VALID, CALLS FOR NO INTERFERENCE . NO SUBSTANTIAL QUESTION OF LAW ARISES IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. PARA 6. ACCORDINGLY, THE APPEAL IS DISMISSED.' T H US A BARE PERUSAL OF THE AFORESAID JUDGMENT OF HON BLE HIGH COURT OF DELHI W OULD MAKE IT AMPLY CLEAR THAT THE HON BLE HIGH COURT HAS CATEGORICALLY HELD THAT THE QUESTION OF PENDENCY AND ABATEMENT OF THE PROCEEDINGS OF ASSESSMENT OR REASSESSMENT TO THE SIX ASSESSMENT YEARS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE' AND AS SUCH, ASSESSMENTS FRAMED FOR AY 2006 - 07 AND 2007 - 08 ARE B EYOND THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT. THAT FURTHER, EVEN IF HON BLE HIGH COURT DISMISSES AN APPEAL BY HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED EVEN THEN IT IS SUBMITTED THAT THE ORDER OF T HE TRIBUNAL ON THE ISSUE WHICH WAS A GITATED BY THE APPELLANT BEFORE THE HIGH COURT STANDS MERGED IN THE ORDER OF THE HIGH COURT, AND FOR ALL INTENTS AND PURPOSES IT IS THE DECISION OF THE HIGH COURT WHICH IS OPERATIVE AND WHICH IS CAPABLE OF BEING GIVEN EFFECT TO. IT IS NOT OPEN TO ANY PERSON (IN THE INSTANT CASE IT S LEARNED CIT DR) TO CONTEND THAT THERE IS NO DECISION OF THE HIGH COURT AND THE SUBORDINATE FORUM IS ENTITLED TO TAKE A CONTRARY VIEW THAN THE ONE AFFIRMED BY THE HIGH COURT BY A PROCESS OF DISMISSAL OF THE APPEAL SIMPLICITE R AND IN ORDER TO ?UPPORT THE SAID PROPOSITION THE ASSESSEE - APPELLANT WOULD SEEK TO PLACE ITS R ELIANCE ON FOLLOWING JUDGMENTS: (A) NIRMA INDUSTRIES LTD. VS DCIT (GUJARAT HC) REPORTED IN 283 ITR 402. THAT THE LEARNED CIT DR ALSO ARGUED THAT ASSESSEE - APP ELLANT HAS SUPPRESSED THE PROVISIONS OF SECTION 153C(2)(A) AND IN THE 87 JUDGMENTS RELIED ON BY ASSESSEE - UPPELLANT, THE COUNSEL FOR THE ASSESSEE S HAVE ALSO SUPPRESSED THE PROVISIONS OF SECTION 153C(2)(A) AND ALSO SECTION 124 BEFORE VARIOUS BENCHES OF HON B LE TRIBUNAL. IN STATING SO, LEARNED CIT DR HAS FAILED TO APPRECIATE THE BASIC FACT THAT STATUTORY PROVISIONS CANNOT BE SUPPRESSED AND IN ALL THE CASES RELIED ON BY A SSESSEE - APPELLANT EVEN THE DEPARTMENT COULD HAVE ARGUED AND MENTIONED ABOUT THE PROVISION S OF SECTION 153C(2)(A) BUT THEY DIDN T (DOES IT MEAN THAT DEPARTMENT EVEN SUPPRESSED THE SAID PROVISIONS), AS THE READING OF THE SAID PROVISION WOULD MAKE IT AMPLY CLEAR THAT IN CASE OF SEARCH BEING CONDUCTED ON AN INDIVIDUAL, IF D OCUMENT BELONGING TO OTH ER PERSON IS FOUND, THAN THE SEARCH YEAR OF THE SEARCHED PERSON (AS ALSO FOR THE CASE OF OTHER PERSON) SHOULD NOT GO SCOTT FREE AND THE SAID ASSESSMENT YEAR NEEDS TO BE ASSESSED UNDER THE NORMAL PROVISIONS OF SECTION 153C READ WITH SECTION 153 A OF THE ACT . THAT THE THIRD ARGUMENT OF LEARNED CIT DR THAT THERE IS NO REQUIREMENT OF MAKING ADDITION ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH, RATHER AND TOTAL INCOME HAS TO BE ASSESSED BY LEARNED ASSESSING OFFICER AND THUS, ADDITIONS CAN BE MADE BEYOND INCRIMINATING MATERIAL AS WELL, IS AGAIN BASED MISCONCEIVED AND MISPLACED READING OF STATUTORY PROVISIONS OF STATUTE AND JUDICIAL PRECEDENTS AVAILABLE, AS IT IS AN AGREED ASPECT BETWEEN THE LEARNED CIT DR AND THE ASSESSEE - APPELLANT THAT AS SESSMENTS UNDER SECTION 153C OF THE ACT HAS TO BE MADE AS PER THE PROVISIONS AND PROCEDURES LAID DOWN IN SECTION 153A OF THE ACT AND THE PROVISIONS OF THE SAID SECTION HAVE BEEN INTERPRETED BY VARIOUS HIGH COURTS AND VERY RECENTLY HON BLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN 126 DTR 130 AFTER ANALYZING EACH AND EVERY JUDGMENT OF VARIOUS HIGH COURTS ON THIS ISSUE AND ALSO THE JUDGMENTS AS RELIED ON BY LEARNED CIT DR {JUDGMENT OF HON BLE DELHI HIGH COURT ON THE CASES OF CI T VS CHETAN DASS LACHMAN 88 DASS REPORTED IN 211 TAXMAN 61 AND FILATEX INDIA LTD. VS CIT REPORTED IN 229 TAXMAN 555 AND ALSO OF MADUGULA VENU VS CIT REPORTED IN 215 TAXMAN 298 ) AND HON BLE HIGH COURT HAS HELD AS FOLLOWS: PARA 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(L) W ILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II . ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THEAOS AS A FRESH EXERCISE. HI. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POW ER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV . ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHIC H CAN BE 89 RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V . VI . IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDING S. VII . INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VIII . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME IN CRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 90 CONCLUSION PARA 38. THE PRESENT APPEALS CONCERN AYS, 2002 - 03, 2005 - 06 AND 2006 - 07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. PARA 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THAI, IN VIEW OF THE AFORESAID, IT IS MOST HUMBLY SUBMITTED THAT THE ARGUMENTS OF EARNED CIT DR ARE AGAINST THE MANDATE AND JUDGMENT OF HON BLE JURISDICTIONAL RIGH T COURT AND ONCE HON BLE HIGH COURT AFTER ANALYZING ALL THE AVAILABLE CASE 5 ON THE ISSUE INVOLVED HAS HELD THAT ADDITION AS A RESULT OF SEARCH HAS TO BE BASED UPON INCRIMINATING MATERIAL ONLY, THAN NOTHIN G REMAINS AND IT IS PRAYED THAT IN V IEW OF THE ABOVE, IT BE HELD THAT ADDITIONS MADE BY LEARNED AO ARE BEYOND THE : RE OF ASSESSMENT, AS NO ADDITION IS BASED ON ANY INCRIMINATING MATERIAL FOUND A RESULT OF SEARCH, AS IS RECORDED IN THE SATISFACTION NOTE. THAT THE FOURTH ARGUMENT OF LEARNED CIT DR THAT THERE WERE MANY OTHER DOCUMENTS FOUND DURING THE COURSE OF SEARCH ON MINDA GROUP AND ALSO STATEMENTS A - PERSONS SEARCHED IN MINDA GROUP, WHICH HAVE NOT BEEN RECORDED IN THE SATISFACTION NOTE AND AS SUCH, THE ARGUMENT OF THE ASSESSEE - APPELLANT THAT NO DOCUMENT BELONGING TO ASSESSEE - APPELLANT WAS FOUND DURING THE COURSE OF MARCH IN MINDA GROUP IS NOT CORRECT IS AGAIN 91 MISCONCEIVED IN LAW, AS FOR TAKING AN ASSESSMENT UNDER SECTION 153C OF THE ACT , THE CON DITION PRECEDENT IS THE SATISFACTION NOTE AND WITH RESPECT TO COMPLETED ASSESSMENTS, ADDITION HAS TO BE RA I SED UPON SEIZED DOCUMENTS AS MENTIONED IN THE SEIZED DOCUMENTS ONLY, THUS, TH E ARGUMENT OF LEARNED CIT DR THAT THERE ARE OTHER SEIZED DOCUMENTS AS WE LL IS IMM ATERIAL AND IRRELEVANT AS, ONCE ALL THE DOCUMENTS WERE BEFORE THE OFFICER OF SEARCHED PERSON NOTHING STOPPED HIM TO RECORD ALL THE SAID SEIZED DOCUMENTS IN E SATISFACTION NOTE, HOWEVER, ONCE THE ASSESSING OFFICER OF SEARCHED PERSON RECORDS A SATI SFACTION NOTE AND HANDS OVER T HE SEIZED DOCUMENTS MENTIONED TH EREIN TO THE OFFICER OF OTHER PERSON THAN THE LEAR NED OFFICER OF OTHER PERSON IS RECOR DED IN CONSIDERING ANY OTHER MATERIAL OVER AND ABOVE THE MATERIAL/ DOCUMENT MENTIONED IN THE SATISFACTION NO TE AND FURTHERMORE, LOOKING AT THE DOCUMENTS AS WELL, THEY ARE NOTHING BUT MERE PHOTOCOPIES IN THE SHAPE OF FINA NCIAL STATEMENTS AND TRIAL BALANCES AND IN VIEW OF THE JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF PEPSICO INDIA HOLDINGS (P) LTD. VS ACIT REPORTED IN 370 ITR 295, THE SAID DOCUMENTS CANNOT BE SAID TO BE BELONGING TO THE ASSESSEE - APPELLANT. THAT FURTHER IN SUPPORT OF THE AFORESAID PROPOSITION 92 THE ASSESSEE - APPELLANT WOULD SEEK TO PLACE RELIANCE ON FOLLOWING JUDGMENTS: S.NO . JUDGMENTS PG NOS. OF PB - III 6. COPY OF JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF SSP AVIATION LTD. VS DCIT REPORTED IN 346 ITR 177. 33 - 45 8. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF M/S BRIGHTWAYS HOUSING & LAND DEVELOPERS LTD. IN ITA NO. 5117, 5118/DEL/2013. 53A - 53J 9. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF M/S DEVI DAYAL PETRO CHEMICALS PVT. LTD VS DCIT IN ITA NO. 5435, 5436/DEL/2013. 53K - 53U 10. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF NATURAL PRODUCTS BIO TECH LTD. VA DCIT REPORTED IN 153 ITD 58. 54 - 65 11. COPY OF ORDER OF HON BLE ITAT PANAJI IN THE CASE OF SMT. SUNITA BAI VS DCIT REPORTED IN 68 SOT 98 (URO). 66 - 75 12. COPY OF ORDER OF HON BLE ITAT PANAJI IN THE CASE OF SMT. LAKSHMI SINGH VS DCIT REPORTED IN 68 SOT 26 (URO). 76 - 85 13. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF DCIT VS QUALITRON COMMODITIES (P) LTD. REPORTED IN 167 TTJ 553. 86 - 91 14. COPY OF ORDER OF HON BLE ITAT DELHI IN THE CASE OF TANVIR COLLECTIONS (P) LTD. VS ACIT REPORTED IN 168 TTJ 145. 92 - 99 15. COPY OF ORDER OF HON BLE ITAT JAIPUR IN THE CASE OF SATYAM FOOD SPECIALITIES (P) LTD VS DCIT REPORTED IN 68 SOT 449. 100 - 122 93 T HAT THE FIFTH ARGUMENT OF LEARNED CIT DR THAT NO SUCH LEGAL ARGUMENT WAS RAISED BY ASSESSEE - APPELLANT IN STATEMENT OF FACTS AND GROUNDS OF APPEAL BEFORE LD. CIT (A) , IS FACTUALLY INCORRECT, AS VIDE GROUND NOS. 1 TO 2, THE ASSESSEE APPELL ANT CLEARLY RAISED THE SAID PLEAS BEFORE LEARNED CIT (A) WHICH WERE ALSO ARE B> LEARNED CIT (A) VIDE PARA NOS. 6 TO 6.7 OF THE IMPUGNED ORDER. THAT FURTHERMORE , THE ISSUES INVOLVED IN THE INSTANT APPEALS ARE SINCE PURELY LEGAL IN NATURE INVOLVE CONSIDERATION OF ASPECTS OF INHERENT JURISDICTION, THUS, THERE IS NO BAR RAISING THE SAME BEFORE HON BLE T RIBUNAL, UNLESS AND UNTIL THE SAME INVOLVE FRESH CONSIDERATION OF FACTS, WHICH APPARENT IS NOT REQUIRED IN THE INSTANT APPEALS AND AS SUCH, IT IS PRAYED THAT THE AFORESAID ARGUMENT OF LEARNED CIT DR BE NEGATED 3.6 AS R EGARDS, JUDGMENTS RELIED UPON BY LEARNED CIT DR, THE SUBMISSION OF THE A SSESSEE IS AS UNDER: 94 MEHMOOD DAWOOD SHEIKH VS STATE OF MAHARASHTRA REPORTED IN (2004) 2 SCC 362 SURINDER KUMAR VS STATE OF PUNJAB REPORTED IN 194 ITR 434 THE PROPOSITION LAID DOWN IN THE SAID JUDGMENTS ARE NOT APPLICABLE TO THE FACTS OF THE ASSESSEE - APPELLANT AS FIRST OF ALL THE SAID JUDGMENTS ARE NOT IN CONTEXT OF SECTION 260A OF THE INCOME TAX ACT AND HON BLE GUJARAT HC IN THE CASE OF NIRMA INDUSTRIES LTD. VS DCIT (GUJARAT HC) REPO RTED IN 283 ITR 402 HAS HELD THAT EVEN IF HIGH COURT DISMISSES AN APPEAL BY HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED EVEN THEN THE ORDER OF THE TRIBUNAL ON THE ISSUE WHICH WAS AGITATED BY THE APPELLANT BEFORE THE HIGH COURT STANDS MERGED IN THE ORDER OF THE HIGH COURT, AND FOR ALL INTENTS AND PURPOSES IT IS THE DECISION OF THE HIGH COURT WHICH IS OPERATIVE AND WHICH IS CAPABLE OF BEING GIVEN EFFECT TO. IT IS NOT OPEN TO ANY PERSON TO CONTEND THAT THERE IS NO DECISION OF THE HIGH COURT AND TH E SUBORDINATE STATE OF KERALA VS MATHAI VERGHESE (1986) 4 SCC 746 CIT VS KESHAVLAL AIR 1965 SC 866 CWT, BIHAR VS KRIPASHANKAR AIR 1971 SC 2473 HINDUSTAN IDEAL INSURANCE CO. LTD. VS LIC (AIR 1963 1083 NOT APPLICABLE TO THE FACTS OF THE IMPUGNED CASE, AS THE PURPOSE AND ENACTMENT OF PROVISIONS OF SECTION 153A AND SECTION 153C HAVE BEEN EXPLAINED BY HON BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2015) TAXMANN.COM 412, WHEREIN, HON BLE HIGH COURT HAS HELD THAT ADDITION IN PURSUANCE TO SEARCH CANNOT BE MADE BEYOND INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH IN RESPECT OF COMP LETED ASSESSMENTS AND SINCE, ASSESSMENT UNDER SECTION 153C HAS TO BE MADE IN PURSUANCE TO THE PROVISIONS AS ENVISAGED UNDER SECTION 153 A OF CHETAN DAS LACHMAN DAS (D ELHC) CIT VS ANIL KUMAR BHATIA DEL HC) FILATEX INDIA LTD. \ S CIT REPORV ED IN 229 TAXMAN 555 ALL THESE JUDGMENTS HAVE BEEN CONSIDERED BY HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2015) TAXMANN.COM 412, WHEREIN, HON BLE HIGH COURT HAS HELD THAT ADDITION IN PURSUANCE TO SEARCH CANNOT BE MADE BEYOND INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH IN RESPECT OF COMPLETED ASSESSMENTS AND SINCE, ASSESSMENT UNDER SECTION 153C HAS TO BE MADE IN PURSUANCE TO THE 95 . NEEDS TO BE APPLIED TO THE FACTS OF THE INSTANT CASE AS WELL. MADUGULA VENU VS CIT REPORTED IN 215 TAXMAN 298. THAT FURTHER, THE JUDGMENTS RELIED ON BY ASSESSEE - APPELLANT HAVE BEEN DISTINGUISHED BY THE LEARNED CIT DR IN A VERY CASUAL AND CURSORY MANNER AND IS TAFCRU ON .ISCONCEIVED AND MISPLACED UNDERSTANDING OF THE PROVISIONS OF LAW. LI 1 GRC OF THE AFORESAID, THE APPEAL FILED BY THE REVENUE MAY KINDLY BE DISMISSED AND THE ORDER PASSED BY LEARNED CIT (A) BE UPHELD. 34 WE HAVE ANXIOUSLY AND THOUGHTFULLY CONSIDERED THE WRITTEN SUBMISSIONS PLACED ON RECORD BY THE LD. CIT - DR SHRI RAMESH CHANDER. IT HAS LEFT US BEWILDERED AND PERPLEXED THAT WHETHER THE GIVEN ARGUMENTS RUNNING CONTRARY TO THE WELL SETTLED POSITION OF LAW U/S 153C OF THE ACT CAN BE TAKEN BY A PERSON JUDICIALLY INSTRUCTED ON LAW AND FACTS. TO BE FAIR TO THE LD. CIT - DR, WE RECORD OUR DISPLEASURE THAT ON AN ISSUE WHICH IS SQUARELY COVERED BY A CATENA AND PLETHORA OF JUDGMENTS IN ASSESSEE S FAVOUR A FEEBLE AND VA LIANT ATTEMPT HAS BEEN MADE TO UPSET THE ENTIRE JURISPRUDENCE SETTLED BY THE HON'BLE SUPREME COURT, VARIOUS HON'BLE HIGH COURT INCLUDING THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI. THERE IS A COMMONALITY IN THE ARGUMENTS OF THE 96 LD. CIT - DR THAT ALL THE SE DECISIONS HAVE BEEN RENDERED ON ALLEGED AND SUGGESTED SUPPRESSION OF CRUCIAL AND VITAL FACTS CONTRARY TO ASSESSEE HAS WITHHELD THAT JURISDICTION IS NOT ALLEGED BEFORE THE AO. ON THIS GROUND, THE LD. CIT - DR HAS PAINFULLY ARGUED THAT ALL THE PRECEDENTS O N GIVEN ISSUE ARE DISTINGUISHABLE ON THIS GROUND. WE ARE OF THE CONSISTENT VIEW THAT AT MULTIPLE OCCASIONS IT HAS BEEN CONSISTENTLY AND REPEATEDLY HELD THAT THE ISSUE RELATING TO JURISDICTION OF THE AO CAN BE RAISED AT ANY STAGE EVEN IN COLLATERAL PROCEED INGS BECAUSE THE SAME STRIKES AT THE ROOT OF THE MATTER. WE ARE REMINDED OF THE CLASSICAL AND LAND MARK DECISION OF THE HON'BLE SUPREME COURT [FOUR JUDGES BENCH] IN THE CASE OF RAJA TEXTILES LTD VS. ITO 87 ITR 539 WHEREIN IT WAS HELD THAT : IT WAS CONTENDED BY MR. MANCHANDA, THE LEARNED COUNSEL FOR THE REVENUE, THAT THE APPELLANT HAD A RIGHT OF APPEAL TO THE APPELLATE ASSISTANT COMMISSIONER UNDER SECTION 30(1A) . HE ARGUED THAT IF ONLY HE HAD D EPOSITED THE AMOUNT COMPUTED BY THE INCOME - TAX OFFICER, THEN HE WOULD HAVE HAD A RIGHT OF APPEAL TO THE APPELLATE ASSISTANT COMMISSIONER. ASSUMING THAT SECTION 30(1A) APPLIED TO FACTS OF THE CASE, THEN BEFO RE HAVING RECOURSE TO THAT PROVISION A PERSON SEEKING TO FILE AN APPEAL UNDER THAT PROVISION MUST COMPLY WITH TWO REQUIREMENTS, NAMELY, THAT HE MUST HAVE FIRST DEDUCTED THE TAX DUE FROM THE NON - RESIDENT ASSESSEE AND MUST HAVE PAID THE SAME TO THE GOVERNMEN T. THIS PROVISION CANNOT APPLY TO THE CASE OF A PERSON WHO CONTENDS THAT THE FIRM TO WHOM HE MADE THE PAYMENT IS NOT 97 A NON - RESIDENT FIRM. IF HE IS RIGHT IN HIS CONTENTION, THEN HE COULD NOT HAVE DEDUCTED THE TAX DUE FROM THE FIRM TO WHOM HE MADE THE PAYMEN T. 5. FOR THE REASONS MENTIONED ABOVE, WE ALLOW THIS APPEAL, SET ASIDE THE ORDER OF THE APPELLATE BENCH OF THE ALLAHABAD HIGH COURT AND REMAND THE CASE BACK TO THAT COURT FOR DECIDING THE APPEAL AFRESH. IT IS OPEN TO THE ASSESSEE TO URGE ALL THE POINTS TH AT HE HAS TAKEN IN THE CASE . 35 . THESE OBSERVATIONS OF THE HON'BLE SUPREME COURT HAVE BEEN ECHOED IN VARIOUS SUBSEQUENT DECISIONS OF VARIOUS COURTS AND FEW OF THESE ARE RESPECTFULLY MENTIONED BELOW: A) HON'BLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSH I VS. CIT 113 ITR 22 [GUJ] B) HON'BLE JURISDICTIONAL HIGH COURT IN K.K.LUMBA 241 ITR 152 [DELHI] C) DHC S.S. AHLUWALIA [2014] 82 CCH [158] [DEL] 36. TO SUM UP, WE HAVE NO HESITATION TO JETTISON THE ARGUMENTS OF THE LD. CIT - DR. WE ARE PAINED TO QUOTE FR OM THE FAMOUS OBSERVATIONS OF MR. JUSTICE CRAMPTON IN R VS. O CONNELL [1844] ILR 261 @ 312: ANOTHER DOCTRINE BROACHED BY ' ANOTHER EMINENT COUNSEL I CANNOT PASS BY WITHOUT A COMMENT. THAT LEARNED COUNSEL DESCRIBED THE ADVOCATE AS THE MERE MOUTHPIECE OF HI S CLIENT, 98 HE TOLD US THAT THE SPEECH OF THE COUNSEL WAS TO BE TAKEN AS THAT OF THE CLIENT; AND THENCE SEEMED TO CONCLUDE THAT THE CLIENT ONLY WAS ANSWERABLE FOR ITS LANGUAGE AND SENTIMENTS. SUCH, I DO CONCEIVE, IS NOT THE OFFICE OF AN ADVOCATE. HIS OFFICE IS A HIGHER ONE. TO CONSIDER HIM IN THAT LIGHT IS TO DEGRADE HIM. I WOULD SAY OF HIM AS I WOULD SAY OF A MEMBER OF THE HOUSE OF COMMONS - HE IS A REPRESENTATIVE, BUT NOT A DELEGATE. HE GIVES TO HIS CLIENT THE BENEFIT OF HIS LEARNING, HIS TALENTS AND HIS JU DGMENT; BUT ALL THROUGH HE NEVER FORGETS WHAT HE OWES TO HIMSELF AND TO OTHERS. HE WILL NOT KNOWINGLY MISSTATE THE LAW - HE WILL NOT WILFULLY MISSTATE THE FACTS, THOUGH IT BE TO GAIN THE CAUSE FOR HIS CLIENT. HE WILL EVER BEAR IN MIND THAT IF HE BE THE ADVO CATE OF AN INDIVIDUAL, AND RETAINED AND REMUNERATED (OFTEN INADEQUATELY) FOR HIS VALUABLE SERVICES, YET HE HAS A PRIOR AND PERPETUAL RETAINER ON BEHALF OF TRUTH AND JUSTICE; AND THERE IS NO CROWN OR OTHER LICENCE WHICH IN ANY CASE, OR FOR ANY PARTY OR PURP OSE, CAN DISCHARGE HIM FROM THAT PRIMARY AND PARAMOUNT RETAINER. (EMPHASIS SUPPLIED) 37. AT THIS STAGE, IT IS NECESSARY AND RELEVANT TO RESPECTFULLY REMIND THE PREPOSITION LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF ACCE VS. DUNLOP INDIA LTD [1985] 154 ITR 172 [SC] THAT THE JUDGMENTS/ORDERS OF THE HON'BLE SUPREME COURT/HON'BLE HIGH COURT HAVE BINDING EFFECT ON THE TRIBUNAL AND THE ORDERS OF THE TRIBUNAL HAVE PERSUASIVE VALUE OR EFFECT ON THE OTHER BENCHES OF THE TRIBUNAL. SPEAKING FOR THE HON'BLE SUPREME COURT OF INDIA, THEIR LORDSHIPS HELD THAT THE JUDICIAL SYSTEM ONLY WORKS IF SOMEONE IS ALLOWED TO HAVE THE 99 LAST WORD AND THE LAST WORD, ONCE SPOKEN, IS LOYALLY ACCEPTED. THE HON'BLE SUPREME COURT IN THIS JUDGMENT HAS ITSELF QUOTED FROM THE DECISION OF HOUSE OF LORDS AS FOLLOWS WE DESIRE TO ADD AND AS WAS SAID IN CASSELL & CO. LTD. VS. BROOME (1972) AC 1027 (HL), WE HOPE IT WILL NEVER BE NECESSARY FOR US TO SAY SO AGAIN THAT 'IN THE HIERARCHICAL SYSTEM OF COURTS' WHICH EXISTS IN OUR COUNTRY, 'IT IS NECESSARY FOR EACH LOWER TIER' 'TO ACCEPT LOYALLY THE DECISION OF THE HIGHER TIERS'. 'IT IS INEVITABL E IN HIERARCHICAL SYSTEM OF COURTS THAT THERE ARE DECISIONS OF THE SUPREME APPELLATE TRIBUNAL WHICH DO NOT ATTRACT THE UNANIMOUS APPROVAL OF ALL MEMBERS OF THE JUDICIARY... BUT THE JUDICIAL SYSTEM ONLY WORKS IF SOMEONE IS ALLOWED TO HAVE THE LAST WORD, AND THAT LAST WORD, ONCE SPOKEN, IS LOYALLY ACCEPTED. '... THE BETTER WISDOM OF THE COURT BELOW MUST YIELD TO THE HIGHER WISDOM OF THE COURT ABOVE. THAT IS THE STRENGTH OF THE HIERARCHICAL JUDICIAL SYSTEM .' (EMPHASIS BY UNDERLINING SUPPLIED BY US ) 38. FURTHERMORE, IN THE CASE OF CIT VS. GODAVARI DEVI SARAF [1978] 113 ITR 589 [BOMBAY] THE HON'BLE BOMBAY HIGH COURT HELD THAT AN AUTHORITY LIKE THE TRIBUNAL HAS TO RESPECT THE LAW LAIDDOWN BY THE HON'BLE HIGH COURT, THOUGH OF A DIFFERENT STATE, SO LONG AS T HERE IS NO CONTRARY DECISION ON THAT ISSUE BY THE OTHER HIGH COURT. HENCE WE 100 DECLINE TO ACCEPT THE CONTENTIONS OF THE LD. CIT - DR ABOUT NON - APPLICABILITY OF THE RATIO OF THE DECISIONS /JUDGMENTS CITED AS RELIED BY THE LD. COUNSEL OF THE ASSESSEE AND WE PRO CEED TO CONSIDER OTHER LEGAL OBJECTIONS OF THE ASSESSEE. 3 9. REGARDING FIRST PREPOSITION ADVANCED BY THE LD. COUNSEL OF THE ASSESSEE THAT THE AS SESSMENT MADE U/S 143(3) R.W.S 153C OF THE ACT IS BAD IN LAW AND WITHOUT JURISDICTION AS ASSESSMENT ORDERS UNDE R CHALLENGE FOR A.Y 2006 - 07 AND 2007 - 08 ARE BEYOND JURISDICTION. THE LD. CIT - DR CONTENDED THAT AS THE CUT OFF FOR CALCULATION OF LIMITATION HAS TO BE RECKONED FROM THE DATE OF SEARCH AND NOT FROM THE DATE OF HANDING OVER OF THE DOCUMENTS ETC. BY THE AO OF THE PERSON SE A RCH TO THE AO OF THE OTHER PERSON. THE LD. CIT - DR HAS PLACED RELIANCE ON THE PROVISIONS OF SECTION 153C(2)(A) OF THE ACT AND ALSO ON THE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. APOORVA EXTRUSION PVT. LTD IN ITA NO. 6964/DEL/2014 AND VE HEMENTLY CONTENDED THAT THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF DCIT VS. JASJIT SINGH [SUPRA] IS NOT AVAILABLE AS PRECEDENT AS NEITHER ANY QUESTION OF LAW WAS FRAMED NOR ANSWERED AS REQUIRED U/S 260A OF THE ACT. 101 4 0. ON THIS ISSUE, AT THE VERY OUTSET, WE OBSERVE THAT THE ORDER OF THE TRIBUNAL IN THE CASE OF APOORVA [SUPRA] WAS PASSED ON 09.10.2014, WHILE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT WAS RENDERED ON 11.8.2015 HENCE THE BINDING DECISION OF HON'BLE JURISDICTIONAL HI GH COURT WAS NOT IN EXISTENCE WHEN THE TRIBUNAL PASSED ORDER IN THE CASE OF APOORVA [SUPRA]. THUS, WE RESPECTFULLY HOLD THAT THE BENEFIT OF THE RATIO OF THE TRIBUNAL ORDER [SUPRA] IS NOT AVAILABLE FOR TH E REVENUE IN THE LIGHT OF PREPOSITION LAID DOWN BY T HE HON'BLE HIGH COURT OF DELHI IN THE CASE OF JASJIT SINGH [SUPRA] WHEREIN SPEAKING FOR THE HON'BLE JURISDICTIONAL HIGH COURT THEIR LORDSHIP HELD AS UNDER: PARA 3. THE QUESTION RAISED BEFORE THE IT AT WAS WITH REFERENCE TO THE FIRST PROVISO TO SECTION 153 C (1). THE ITAT HAS RELIED UPON THE JUDGMENT OF THIS COURT IN SSP AVIATION LTD. V. DEPUTY COMMISSIONER OF INCOME TAX (2012) 252 CTR (DEL) 291, WHICH IN PARA 14 HELD THAT WHILE IN THE CASE OF THE SEARCHED PERSON, THE DATE WITH REFERENCE TO WHICH THE PROCEED INGS FOR ASSESSMENT OR REASSESSMENT OF ANY ASSESSMENT YEAR WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS SHALL ABATE SHALL BE THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR THE REQUISITION UNDER SECTION 132A, IN THE CASE OF THE OTHER PERSON (LIK E THE ASSESSEE IN THE PRESENT CASE) SUCH DATE WILL BE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITION BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON . IN THE CASE OF THE OTHER PERSON, THE QUESTIO N OF PENDENCY AND ABATEMENT OF THE PROCEEDINGS OF ASSESSMENT OR REASSESSMENT TO THE SIX ASSESSMENT 102 YEARS WILL BE EXAMINED WITH REFERENCE TO SUCH DATE. 4 1. IN THE PRESENT CASE IN ITA NO. 6947/DEL/2014 I.E. ASSESSEE S APPEAL FOR A.Y 2006 - 07 UNDISPUTEDLY AND ADMITTEDLY THE AO OF THE OTHER PERSON RECORDED SATISFACTION FOR INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT ON 09.09.2013 AND WHEN THE LD. CIT - DR COULD NOT ASSIST ABOUT THE RECEIVING OF DOCUMENTS ETC. BY THE AO OF THE OTHER PERSON THE DATE OF RECORDING SATISFACTION I.E. 09.09.2013 IS TREATED AS DATE OF RECEIVING DOCUMENTS ETC. THUS LIMITATION PERIOD FOR CALCULATION OF A.YS UNDER THE AMBIT OF SECTION 153C SHOULD BE RECKONED FROM 09.09.2013 RELEVANT TO F.Y. 2013 - 14 AND A.Y 2014 - 015 AND HENCE THE SIX YEARS UNDER SCANNER WOULD BE A.Y 2008 - 09 TO 2013 - 14 AS PER THE DICTA LAID DOWN BY THE HON'BLE HIGH COURT IN THE CASE OF SSP AVIATION [SUPR A] AND JASJIT SINGH [SUPRA]. IN THIS SITUATION AND UNDER ABOVE NOTED PREPOSITION THE ASSUMPTION OF JURISDICTION FOR A.Y 2006 - 07 WOULD BE BEYOND LIMITATION PERIOD AND SAME HAS TO BE HELD AS BAD IN LAW AND INVALID JURISDICTION AND THUS RESPECTFULLY FOLLOWIN G THE RATIO OF THE DECISIONS CITED ABOVE, THE FIRST LIMB OF LEGAL ARGUMENTS OF THE ASSESSEE IS ACCEPTED AND THE SAME IS DECIDED IN FAVOUR OF THE ASSESSEE. 103 4 2. IN SIMILAR LINE IN ITA NO.7060/DEL/2014 AND ITA NO. 6048/DEL/2014 FOR A.Y 2007 - 08 THE DATE OF RE CORDING OF SATISFACTION FOR INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT ARE 29.11.2013 AND 09.09.2013 RESPECTIVELY AND THUS OUR CONCLUSION IN ITA NO. 6947/DEL/2014 IN EARLIER PART OF THIS ORDER ON THE ISSUE OF LIMITATION PERIOD FO R INITIATION OF PROCEEDINGS U/S 153C OF THE ACT ALSO APPLIED MUTATIS MUTANDIS BECAUSE FROM THE ABOVE NOTED DATED THE SIX YEARS PERIOD UNDER SCAN WOULD BE FROM A.Y 2008 - 09 TO 2013 - 14 AND THUS PROCEEDINGS U/S 153 OF THE ACT FOR A.Y 2007 - 08 IN BOTH THE APPEAL S ARE BEYOND THE PRESCRIBED LIMITATION PERIOD AND HENCE THE SAME ARE TIME BARRED AND NOT SUSTAINABLE IN LAW. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED SECOND BROAD PREPOSITION THAT NOTICE ISSUED U/S 153 C OF THE ACT AND ASSESSMENT FRAMED THEREAFTER IS BAD IN LAW AS NO DOCUMENT BELONGING TO THE ASSESSEE WAS FOUND IN THE PREMISES OF THE SEARCHED PERSON. THE LD. AR VEHEMENTLY POINTED OUT THAT THE SATISFACTION NOTES IN ALL THREE APPEALS DO NOT REVEAL ANY DOCUMENTS BELONGING TO THE ASSESSEE AS COPIES OF THE BALANCE SHEET ABSTRACTS AND COMPANIES GENERAL BUSINESS PROFITS , COPY OF TRIAL BALANCE SHEET CAN BE CONSIDERED AS PERTAINS TO THE ASSESSEE BUT SAME CANNOT BE CONSIDERED AS BELONGING TO THE ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT THE PRECONDI TION FOR ISSUANCE OF NOTICE U/S 153C OF THE ACT HAVE NOT 104 BEEN SATISFIED AS NO DOCUMENT BELONG TO THE ASSESSEE HAVE BEEN FOUND FROM THE PREMISES OF THE SEARCHED PERSON I.E MINDA GROUP AND CONSEQUENTLY, THE NOTICE U/S 153C OF THE ACT DESERVE TO BE QUASHED AN D ALL PROCEEDINGS PURSUANT THERETO SHOULD ALSO BE QUASHED. THE LD. COUNSEL HAS ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS/ORDERS OF THE HON'BLE JURISDICTIONAL HIGH COURT AND CO - ORDINATE BENCHES OF THE TRIBUNAL : I) KURELE PAPER MILLS P LTD [DELHI HIGH COURT] ORDER DTD 06.07.2015 II) MGF AUTOMOBILES LTD [DELHI HIGH COURT] IN ITA NO. 13 & 14/2014 ORDER DATED 13.08.2015 III) PEPSICO INDIA HOLDINGS P. LTD 370 ITR295 [DELHI HIGH COURT] IV) CHAIN ROOP BAID 154 ITD 257 DELHI V) BRIGHTWAYS HOUSING & LAND DEVELOPERS LTD ITA NO. 5117 - 18/DEL/2013 4 3. THE LD. COUNSEL ALSO POINTED OUT THAT EVEN WITHOUT PREJUDICE TO ABOVE ARGUMENT THE DOCUMENTS MENTIONED IN THE RESPECTIVE SATISFACTION NOTES ARE NOT PERTAINING TO EITHER A.Y 2006 - 07 AND 2007 - 08 AND THEREFORE THE AO DID NOT HAVE VALID JURISDICTION TO ISSUE NOTICES U/S 153C OF THE ACT FOR A.Y 2006 - 07 AND 2007 - 08 IN ALL THREE CASES AND THE SAME SHOULD BE HELD AS BAD IN LAW AND VOID AN INITIO AND ONLY ON THIS GROUND DESERVE TO BE QUASHED. 105 4 4. THE LD. CIT - DR SUPPORTED THE ACTION OF THE AO AND CONTENDED THAT THE CITATIONS AS RELIED BY THE ASSESSEE NOT HAVE BINDING EFFECT AND THEY DO NOT SUPPORT THE CONTENTIONS OF THE ASSESSEE. THE LD. CIT - DR ALSO STRESSED THAT THERE WERE MANY OTHER DOCUMENTS FOUND DURING THE COURSE OF SEAR C H AND MI N DA GROUP WHICH HAVE NOT BEEN RECORDED IN THE SATISFACTION NOTE AND THE ARGUMENT OF THE ASSESSEE THAT NO DOCUMENT BELONGING TO ASSESSEE WAS FOUND DURING THE SEARCH IN MINDA GROUP IS NOT CORRECT. IT WAS ALSO POINTED OUT THAT NO SUCH ARGUMENT W AS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) IN STATEMENT OF FACTS AND GROUNDS BEFORE THE LD. CIT(A). 4 5. THE LD. COUNSEL FOR THE ASSESSEE ALSO PLACED REJOINDER TO THE ABOVE CONTENTIONS OF THE LD. CIT - DR AND PLACING RELIANCE ON THE ABOVE LISTED DECISIO NS INCLUDING DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF PEPSICO INDIA HOLDINGS [P] LTD. VS ACIT [SUPRA] CONTENDED THAT THE DOCUMENTS MENTIONED IN THE RESPECTIVE SATISFACTION NOTED CANNOT BE SAID TO BE BELONGING TO THE ASSESSEE AND HENCE NOTICE U/S 153C OF THE ACT AND ALL SUBSEQUENT PROCEEDINGS IN PURSUANCE THERETO DESERVE TO BE QUASHED. THE LD. COUNSEL FURTHER VEHEMENTLY CONTENDED THAT THE LD. CIT - DR HAS PLACED FACTUALLY INCORRECT SUBMISSIONS THAT THE LEGAL ISSUE WAS NOT RAISED BEFORE THE LD. CIT(A) AS 106 ASSESSEE VIDE GROUND NOS. 1 AND 2 AGITATED BEFORE THE LD. CIT(A) PERTAINS TO THIS LEGAL OBJECTION WHICH WERE WRONGLY ADJUDICATED BY THE LD. CIT(A) IN PARA 6 TO 6.7 OF THE IMPUGNED OR DER. 4 6. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS AND CONTENTIONS, FIRSTLY FROM BARE READING OF THE IMPUGNED ORDER, WE NOTE THAT THE ASSESSEE RAISED SIMILAR LEGAL OBJECTION BY RAISING GROUND NOS. 1 AND 2 BEFORE THE FIRST APPELLATE AUTHORIT Y AND THE SAME WERE ADJUDICATED BY THE LD. CIT(A) IN PARA 6 TO 6.7 OF THE IMPUGNED ORDER. THUS THE FIRST CONTENTION OF THE LD. CIT - DR IS DISMISSED THAT THE ASSESSEE DID NOT RAISE THESE LEGAL GROUND IN STATEMENTS OF FACTS AND GROUNDS AGITATED BEFORE THE LD . CIT(A). 4 7. NEXT QUESTION ON THIS CONTROVERSY IS THAT WHETHER THE DOCUMENTS MENTIONED IN THE RESPECTIVE SATISFACTION NOTES ARE NOT BELONGING TO THE ASSESSEE AND THESE NOTED DO NOT REVEAL OR UNEARTH ANY DOCUMENT RELEVANT TO A.Y 2006 - 07 OR 2008 - 09 AND THU S NOTICES U/S 153C OF THE ACT WAS BAD IN LAW AND VOID AB INITIO . FOR THE SAKE OF CLARITY IN OUR FINDINGS AND CONCLUSION FIRSTLY WE ENCLOSE THE RESPECTIVE AND RELEVANT THREE SATISFACTION NOTES TO THIS ORDER AS ANNEXURE A FOR ITA NO. 3694/DEL/2014 , ANNEXURE B FOR ITA NO. 6948/DEL/2014 AND ANNEXURE C 107 FOR ITA NO. 7060/DEL/2014. THE SATISFACTION ANNEXURE A [SUPRA] REVEALS THAT THE BASIS OF INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT WAS BASED ON CO P IES OF TAX AUDIT REPORT AND FINANCIAL STATEMENT FOR A.Y 2011 - 12 . THE SATISFACTION NOTE ANNEXURE B REVEALS THAT THE BASIS OF INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT WAS BASED ON TRIAL BALANCE SHEET FROM 1.4.2011 TO 30.11.2011; COPIES OF COMPUTATION OF INCOME FOR A .Y 2011 - 12; COPY OF BALANCE SHEET EXTRACTS, COMPANY S GENERAL BUSINESS PROFIT, COPY OF SCHEDULES, ANNEXURES AS ON 31.3.2011; COPY OF BALANCE SHEET, COMPUTATION OF AUDITOR S REPORT AND RETURN AND COPY OF TRAIL BALANCE SHEET FOR THE PERIOD 1.4.2011 TO 31.12. 2011 AND FROM ANNEXURE C SATISFACTION NOTE WE NOTE THAT THE BASIS OF ACTION U/S 153C OF THE ACT WAS FINANCIAL TRANSACTION RECORDED PERTAINS TO A.Y 2011 - 12 WHICH WAS TAX AUDIT REPORT AND FINANCIAL STATEMENT AND TRAIL BALANCE FOR A.Y 2011 - 12. THESE DOCUMENT S MENTIONED IN ALL THREE APPEALS DO NOT PERTAIN TO A.Y 2006 - 07 AND 2007 - 08 WHICH ARE THE YEARS UNDER CONSIDERATION IN THESE THREE APPEALS. 4 8. IN VIEW OF THE ABOVE NOTED FACTS AND CIRCUMSTANCES, WHEN WE ANALYZE THE LEGAL OBJECTION OF THE ASSESSEE THAT THE DOCUMENTS RECORDED AND MENTIONED IN THE RESPECTIVE SATISFACTION NOTE DO NOT 108 BELONG TO THE RESPECTIVE ASSESSEES AND EVEN DOCUMENTS MENTIONED THEREIN ARE NOT RELEVANT TO A.Y 2006 - 07 OR 2007 - 08 THEN WE NOTE THAT FROM ALL THREE ANNEXURES A, B AND C IT IS AMPLY CLEAR THAT THESE DOCUMENTS ARE MAINLY COPIES OF THE RETURN, BALANCE SHEET, TRAIL BALANCE SHEET AND OTHER FINANCIAL STATEMENTS WHICH ARE RELATED TO A.Y 2011 - 12 AND NOT PERTAINING TO EITHER A.Y 2006 - 07 OR 2007 - 08. IN THE CASE OF PEPSICO HOLDINGS [P] LTD [SUPRA], THE HON'BLE JURISDICTIONAL HIGH COURT HELD THAT THE AO OF THE SEARCHE D PERSON COMES TO THE SATISFACTION THAT THE DOCUMENTS OR MATERIAL FOUND DURING SEARCH BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON, IT IS NECESSARY THAT HE ARRIVE AT THE SATISFACTION THAT THE SAID DOCUMENT OR MATERIAL DO NOT BELONG TO SEARCH PERSON. WE ARE UNABLE TO SEE ANY SATISFACTION NOTE OF THE AO OF THE SEARCHED PERSON I.E. MINDA GROUP TO SHOW THAT SUCH REQUIRED EXERCISE WAS UNDERTAKEN BY THE AO OF THE SEARCHED PERSON. HOWEVER, FROM ANNEXURES A,B AND C IT IS VIVIDLY CLEAR THAT THESE ARE THE NOTE S RECORDED BY THE AO OF THE OTHER PERSON. IN THE INSTANT CASE, IT IS NOBODY S CASE THAT THE PERSON SEARCHED I.E. MINDA GROUP DISCLAIMED DOCUMENTS MENTIONED IN THE RESPECTIVE SATISFACTION NOTES. 4 9. IN THE CASE OF PEPSICO HOLDINGS [SUPRA] , THEIR LORDSHIPS HELD THAT UNLESS AND UNTIL IT IS ESTABLISHED THAT T HE DOCUMENTS DO NOT BELONG TO 109 THE SEARCHED PERSON, THE PROVISIONS OF SECTION 153C DO NOT GET ATTRACTED BECAUSE THE VERY EXPRESSION USED BY THE LEGISLATION IN THIS SECTION IS THAT WHERE THE AO IS SATISFIE D THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONS BELONGS OR BELONG TO A PERSON REFERRED IN SECTION 153A OF THE ACT , THEIR LORDHS H IP S FURTHER HELD THAT IN VIEW OF THE MANDATE OF THE SAID PROVISION , IT IS NECESSARY THAT BEFORE THE PROVISIONS OF SECTION 153C OF THE ACT CAN BE INVOKED, THE AO OF THE SEARCHED PERSON MUST BE SATISFIED THAT HE SEIZED MATERIAL [WHICH INCLUDED DOCUMENTS] DOES NOT BELONG TO THE PERSON REFERRED TO IN SECTI ON 153A OF THE ACT I.E. THE SEARCHED PERSON. IN THE PRESENT CASE, THE LD. CIT - DR COULD NOT ASSIST US AS TO WHETHER THE AO OF THE SEARCHED PERSONS RECORDED ANY SATISFACTION AS REQUIRED U/S 153C OF THE ACT. HENCE WE HAVE NO ALTERNATIVE BUT TO ACCEPT THIS CO NTENTION OF THE ASSESSEE THAT NO SATISFACTION NOTES HAVE BEEN RECORDED BY THE AO OF THE SEARCHED PERSON I.E. MINDA GROUP WHICH IS A MANDATORY FIRST STEP AND PRECONDITION FOR ASSUMPTION OF VALID JURISDICTION OF INITIATE PROCEEDINGS AND TO ISSUE NOTICE U/S 1 53C OF THE ACT. 5 0. THE LD. CIT - DR CONTENDED THAT AS PER THE AMENDED SECTION 153C OF THE ACT AS AMENDED BY THE FINANCE ACT, 2015 THE MANDATE OF SECTION 110 153 C OF THE ACT FURTHER ENHANCED AS BESIDES BELONG TO THE WORDS PERTAINS TO AND RELATES TO HAVE BEEN INSERTED HENCE COPIES OF THE BALANCE SHEET, T/B AND FINANCIAL STATEMENTS ETC CLEARLY PERTAIN TO AND RELATE THE RESPECTIVE ASSESSEES AGAINST WHOM THE PROCEEDINGS WERE INITIATED AND NOTICES U/S 153 OF THE ACT HAVE BEEN ISSUED. ON THIS CONTENTION OF THE LD. CIT - DR, WE NOTE THAT THE AMENDED PROVISIONS OF SECTION 153C OF THE ACT IS PROSPECTIVELY APPLICABLE W.E.F. 1.6.2015 THUS AMENDED PROVISIONS WOULD NOT APPLY RETROSPECTIVELY BY ANY STRETCH OF IMAGINATION. THEREFORE, PRE - AMENDMENT PROVISION OF SECTION 15 3C OF THE ACT WOULD APPLY TO THE PRESENT CASE AND AMENDED PROVISION HAS NO APPLICATION TO THE PRESENT CASE. AT THE SAME TIME, RESPECTFULLY FOLLOWING THE DICTA LAID DOWN BY THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF PEPSICO HOLDING [SUPRA] WE OBSERVE T HAT THE PHOTOCOPIES OF THE BALANCE SHEET, TRIAL BALANCE AND OTHER FINANCIAL STATEMENT S ARE NOT BELONGING TO THE ASSESSEE AS NEITHER THEY ARE ORIGINALS NOR HAS BEEN SIGNED BY ANY OFFICE BEARERS OF THE COMPANIES AND THESE WERE NOT DISOWNED BY THE SEARCHED P ERSO N I.E. MIND A GROUP AND THE RATIO OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF PEPSICO HOLDING [SUPRA] IS SQUARELY APPLICABLE TO THE PRESENT CASE IN FAVOUR OF THE ASSESSEE AS IN THE IMPUGNED SATISFACTION NOTES, THERE IS NOTHING THEREIN TO INDICATE THAT THE SEIZED DOCUMENTS MENTIONED IN THE 111 SATISFACTION NOTE [SUPRA] DO NOT BELONG TO MI NDA GROUP AND MERE FI LING OF PHOTOCOPIES OF BALANCE SHEET, TRIAL BALANCE, ETC IN THE POSSESSION OF THE SEARCHED PERSON DOES NOT NECESSARI LY MEAN AND IMPLY THEY BELONG TO THE PERSON WHO HAD THE ORIGINALS. 5 1. THE LD. AR CONTENDED THAT THE DOCUMENTS MENTIONED IN THE SATISFACTION NOTES [SUPRA] ARE PHOTOCOPIES OF BALANCE SHEET, TRIAL BALANCE SHEET, FINANCIAL STATEMENTS AND RETURN OF INCOME ETC . PERTAINING TO A.Y 2011 - 12 AND THEREFORE, THE PROCEEDINGS AND NOTICE U/S 153C OF THE ACT COULD NOT HAVE BEEN INITIATED FOR THE PRESENT A.YS TO WHICH THE DOCUMENTS DO NOT BELONG I.E. 2006 - 07 AND 2007 - 08. THE LD. COUNSEL PLACED RELIANCE ON THE ORDER OF THE ITAT DELHI BENCH B BENCH IN ITA NO. 5430 TO 5436/DEL/2013 IN THE CASE OF DCIT VS. M/S DEVI DAYAL PETRO CHEMICALS LTD DATED 10.09.2014 WHEREIN IT WAS HELD THUS: 9.1 IT WAS CONTENDED BY THE LEARNED COUNSEL THAT THE DOCUMENTS MENTIONED BY THE ASSESSING OFFICER IN THE SATISFACTION NOTE I.E. DOCUMENTS AT PAGES 1 TO 25 OF ANNEXURE A - 5 ARE ONLY THE COUNTERFOIL OF THE CHEQUE BOOK WHICH IS DULY ACCOUNTED FOR IN THE BOOKS OF A CCOUNT. HE HAD ALSO CONTENDED THAT THE COUNTERFOIL BELONGED TO THE YEAR 2008 - 09 AND, THEREFORE, THE PROCEEDINGS UNDER SECTION 153C COULD NOT HAVE BEEN INITIATED FOR 112 THE YEARS TO WHICH THE DOCUMENTS DO NOT B ELONG AND EVEN AFTER INITIATING PROCEEDINGS TO THE YEAR TO WHICH THE DOCUMENTS BELONGED, THE ASSESSING OFFICER OUGHT TO HAVE DROPPED THE PROCEEDINGS BECAUSE ALL TRANSACTIONS REFLECTED BY THE COUNTERFOILS BY THE CHEQUES IS DULY ACCOUNTED FOR. IN SUPPORT OF THIS CONTENTION, HE HAD RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SSP AVIATION LTD. - 346 ITR 177. AT PAGE 189 OF THE REPORT IN PARAGRAPH 17, THEIR LORDSHIPS HELD AS UNDER: - 'THE SECTION MERELY ENABLES THE REVENUE AUTHOR ITIES TO INVESTIGATE INTO THE CONTENTS OF THE DOCUMENT SEIZED, WHICH BELONGS TO A PERSON OTHER THAN THE PERSON SEARCHED SO THAT IT CAN BE ASCERTAINED WHETHER THE TRANSACTION OR THE INCOME EMBEDDED IN THE DOCUMENT HAS BEEN ACCOUNTED FOR IN THE CASE OF THE A PPROPRIATE PERSON. IT IS AIMED AT ENSURING THAT INCOME DOES NOT ITA NOS. 5430 - 5436/DEL/2013 & CO NOS. 83 - 88/DEL/2014 ESCAPE ASSESSMENT IN THE HANDS OF ANY OTHER PERSON MERELY BECAUSE HE HAS NOT BEEN SEARCHED UNDER SECTION 132 OF THE ACT. IT IS ONLY A FIRST STEP TO THE ENQUIRY, WHICH IS TO FOLLOW. THE ASSESSING OFFICER WHO HAS SEARCHED THE SATISFACTION THAT THE DOCUMENT RELATES TO A PERSON OTHER THAN THE SEARCHED PERSON CAN DO NOTHING EXCEPT TO FORWARD THE D OCUMENT TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THE OTHER PERSON AND THEREAFTER IT IS FOR THE ASSESSING OFFICER HAVING JURISDICTION OVER THE OTHER PERSON TO FOLLOW THE PROCEDURE PRESCRIBED BY SECT ION 153A IN AN ATTEMPT TO ENSURE THAT THE INCOME REFLECTED BY THE DOCUMENT HAS BEEN ACCOUNTED FOR BY SUCH OTHER PERSON. IF HE IS SO SATISFIED AFTER OBTAINING THE RETURNS FROM SUCH OTHER PERSON FOR THE SIX 113 ASSESSMENT YEARS, THE PROCEEDINGS WILL HAVE TO BE C LOSED. IF THE RETURNS FILED BY THE OTHER PERSON FOR THE PERIOD OF SIX YEARS DOES NOT SHOW THAT THE INCOME REFLECTED IN THE DOCUMENT HAS BEEN ACCOUNTED FOR, ADDITIONS WILL BE ACCORDINGLY MADE AFTER FOLLOWING THE PROCEDURE PRESCRIBED BY LAW AND AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO SUCH OTHER PERSON. THAT, IN SUM AND SUBSTANCE, IS THE POSITION.' 9.2 CONSIDERING THE FACTS OF THE CASE AND THE ARGUMENTS OF BOTH THE SIDES, WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE - EXAMINAT ION OF THE ISSUE IN THE LIGHT OF THE ABOVE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT I.E., THE ASSESSING OFFICER WILL FIRST VERIFY THE YEARS TO WHICH THE SEIZED DOCUMENTS BELONGED. THERE WOULD BE NO JUSTIFICATION FOR CONTINUATION OF THE PROCEEDINGS UND ER SECTION 153C TO WHICH THE SEIZED DOCUMENTS DO NOT BELONG. THEREFORE, THE ASSESSING OFFICER WILL DROP THE PROCEEDINGS INITIATED UNDER SECTION 153 OF THE Y EARS TO WHICH THE SEIZED DOCUMENTS DO NOT BELONG. FOR THE YEAR TO WHICH THE SEIZED DOCUMENTS BELONGED, HE WILL VERIFY WHETHER THE TRANSACTION REFLECTED BY THE SEIZED DOCUMENTS ARE DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. IF THE TRANSACTIONS ARE DULY ACC OUNTED FOR IN THE BOOKS OF ACCOUNT, AS CONTENDED BY THE LEARNED COUNSEL, THE ASSESSING OFFICER WILL DROP ITA NOS. 5430 - 5436/DEL/2013 & CO NOS. 83 - 88/DEL/2014 THE PROCEEDINGS INITIATED UNDER SECTION 153C . HO WEVER, IF FOR THE YEAR TO WHICH THE SEIZED DOCUMENTS BELONGED, THE TRANSACTION REFLECTED BY THE SEIZED DOCUMENTS IS NOT RECORDED IN THE BOOKS OF ACCOUNT, THE PROCEEDINGS UNDER SECTION 153C WILL CONTINUE AND THE ASSESSING OFFICER WILL MAKE THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW. 114 SINCE WE HAVE SET ASIDE ALL THE YEARS UNDER APPEAL, THE REVENUE'S APPEALS ON MERITS DO NOT REQUIRE ANY ADJUDICATION AND THEY ARE ALSO DEEMED TO BE ALLOWED FOR STATISTICAL PURPOS ES. THE ASSESSING OFFICER WILL PROCEED TO MAKE THE ASSESSMENT AFRESH ONLY IN THE YEAR WHERE PROCEEDINGS UNDER SECTION 153C CAN VALIDLY CONTINUE IN THE LIGHT OF THE ABOVE DECISION OF HON 'BLE JURISDICTIONAL HIGH COURT. 5 2. THE RELEVANT SATISFACTION NOTES HAVE BEEN ENCLOSED TO THIS ORDER AS ANNEXURE A, B AND C WHICH REVEALS THAT NO DOCUMENTS PERTAINS TO A.Y 2006 - 07 AND 2007 - 08 HAVE BEEN MENTIONED THEREIN AND HOWEVER THE LD. CIT - DR, IN HIS WRITTEN SUBMISSIONS HAS MENTIONED NUMBER OF DOCUMENTS BUT AS PER PROPOSITION LAID DOWN BY THE CO - ORDINATE BENCH OF ITAT DELHI IN THE CASE OF M/S DEVI DAYAL PETRO [SUPRA] THERE WOULD BE NO JUSTIFICATION FOR CONTINUATION OF THE PROCEEDINGS U/S 153C OF THE A C T TO WHICH THE SEIZ ED DOCUMENT DO NOT BELONG AND THEREFORE, THE AO WILL DROP THE PROCEEDINGS INITIATED U/S 153C OF THE ACT TO WHICH THE SEIZED DOCUMENT DO NOT BELONG. IN THE PRESENT CASE, WHEN THE DOCUMENTS MENTION E D IN THE SATISFACTION NOTES [SUPRA ] DO NOT BELONG TO A.Y 20 06 - 07 T O 2007 - 08 THEN PROCEEDINGS HAS TO BE DROPPED OR CLOSED FOR TH E YEAR TO WHICH THE DOCUMENTS DO NOT BELONG. THIS CONCLUSION ALSO SUPPORTS THE CASE OF THE ASSESSEE AND THUS WE ARE INCLINED TO HOLD THAT THE AO WAS NOT CORRECT AND JUSTIFIED IN PROCEEDIN G TO FRAME RE 115 ASSESSMENT WHEN THERE W A S NO DOCUMENT BEFOR E THE AO FO R A.Y 2006 - 07 AND 2007 - 08 FOUND MENTIONED IN THE RELEVANT SATISFACTION NOTES 5 3. AT THIS JUNCTURE, IT WOULD BE RELEVANT AND APPROPRIATE TO CONSIDER THE RATIO OF THE DECISION OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. SINGHAD TECHNICAL EDUCATION SOCIETY SINCE REPORTED AS [2015] 120 DTR 79 [BOMBAY] WHEREIN THEIR LORDSHIPS HELD THAT IF IT IS NOT CLE A R THAT TO WHICH A.Y THE DOCUMENT BELONG THEN THE PROCEEDINGS TO INITIATE PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT WOULD VITIATE. IN THE PRESENT CASE, ON THE BASIS OF FOREGOING DISCUSSION WE REACH TO A FORTIFIED CO NCLUSION THAT THE PROCEEDINGS AGAINST THE PRESENT THREE ASSESSEE FOR A.YS 2006 - 07 AND 2007 - 08 ARE NOT SUSTAINABLE AND THE SAME NOW VITIATE AS NO DOCUMENT OR MATERIAL HAVE BEEN FOUND MENTIONED IN THE RESPECTIVE SATISFACTION NOTES [SUPRA]. 5 4. THE THIRD PRE POSITION STRONGLY CONTENDED AND ADVANCED BY THE LD. COUNSEL OF THE ASSESSEE IS THAT THE ADDITIONS MADE ARE BEYOND THE SCOPE OF ASSESSMENT AS NO ADDITION IS MADE ON THE BASIS OF SEIZED DOCUMENT AS FOUND MENTIONED IN AL L THE THREE SATISFACTION NOTES. TO SUP PORT THIS CONTENTION, THE LD. AR HAS PLACED RELIANCE ON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. KABUL 116 CHAWLA DATED 28.8.2015 IN ITA NOS. 707/DEL/2014 IN THE CASE OF CIT VS. MGF AUTOMOBILES LTD DATED 13.8.2015 IN IT A NO. 13/DEL/2014 AND SUBSEQUENT DECISION IN THE C A SE OF DCIT VS. SMT. KUSUM GUPTA AND SUBMITTED THAT THE ADDITIONS MADE ARE BEYOND THE SCOPE OF ASSESSMENT AS NO ADDITION HAS BEEN MADE ON THE BASIS OF SEIZED DOCUMENTS RECORDED IN THE SATISFACTION NOTE FOR ANY A.Y UNDER CONSIDERATION I.E. A.Y 2006 - 07 AND 2007 - 08. THE LD. CIT - DR HAS CONTENDED THAT THERE IS NO REQUIREMENT OF MAKING ADDITION ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH . RATHER, THE TOTAL INCOME HAS TO BE ASSESSED BY THE AO. THUS ADDITIONS CAN BE MADE BEYOND INCRIMINATING MATERIAL AS WELL. THE LD. COUNSEL VEHEMENTLY CONTENDED AND ALSO EAGERLY POINT OUT THA T THESE ARGUMENTS OF THE LD. CIT - DR ARE BASED ON MISCONCEIVED AND MISPLACED READING OF THE STATUTORY PROVISIONS OF THE ACT AND JUDICIAL PRECEDENTS AVAILABLE ON THE ISSUE. AS THE LD. CIT - DR AND THE LD. AR ARE AGREED THAT ASSESSMENT OR RE ASSESSMENT HAS TO BE MADE U/S 153C R.W.S 143(3) OF THE ACT AS PER PROVISIONS AND PROCEDURE LAID DOWN BY SECTION 153A OF THE ACT A ND OBVIOUSLY THE PROVISIONS OF SECTION 153A AND 153C OF THE ACT HAVE BEEN INTERPRETED BY VARIOUS HON'BLE HIGH COURTS AND HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. KABUL CHAWLA AFTER REFERRING TO THE DECISION OF THE HON'BLE HIGH COUR T OF DELHI IN THE CASE OF CIT VS. 117 CHETAN DASS LACHMAN DASS [SUPRA] AND THE DECISION OF THE SAME HON'BLE HIGH COURT IN THE CASE OF MADUGULA VENU VS. CIT REPORTED IN 215 TAXMANN 298 , AS RELIED BY THE LD. CIT - DR , CATEGORICALLY HELD AS FOLLOWS: 5. AT THE OUT SET THIS COURT WOULD LIKE TO OBSERVE THAT AN ANALYSIS OF THE PROVISIONS OF SECTION 153A OF THE ACT HAS BEEN UNDERTAKEN BY THIS COURT IN THE DECISION IN CIT V. ANIL KUMAR BHATIA (SUPRA), WHICH DECISION WAS GIVEN ON THE SAME DATE THAT THE COURT RENDERED ANOTHER DECISION IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA). HOWEVER, IN NEITHER CASE WAS THE COURT CONSID ERING A SITUATION WHERE THERE WAS ABSOLUTELY NO MATERIAL UNEARTHED DURING THE SEARCH, MUCH LESS ANY INCRIMINATING MATERIAL. 16. IN CIT V. ANIL KUMAR BHATIA (SUPRA), PURSUANT TO THE SEARCH CONDUCTED IN T HE ASSESSEE S RESIDENCE AND BUSINESS PREMISES ON 13 TH DECEMBER 2005 UNDER SECTION 132 OF THE ACT, THE AO ISSUED NOTICES UNDER SECTION 153A CALLING UPON TH E ASSESSEE TO FILE RETURNS FOR THE SIX ASSESSMENT YEARS PRIOR TO THE YEAR IN WHICH THE SEARCH TOOK PLACE. NOTICES WERE ALSO SENT UNDER SECTION 142(1) AND 1 43(2) OF THE ACT TO THE ASSESSEE ON 20TH NOVEMBER, 2007 ALONG WITH DETAILED QUESTIONNAIRE. IN RESPONSE THERETO THE ASSESSEE ON 29TH NOVEMBER, 2007 SUBMITTED AN EXPLANATION. THEREAFTER THE AO MADE ADDITIONS TO THE INCOME INCLUDING A SUM OF RS.1.50 LAKH GIVE N BY THE ASSESSEE AS LOAN TO ONE MRS. MOHINI SHARMA ON 10TH FEBRUARY, 2003. THE INFORMATION REGARDING GIVING OF THE LOAN WAS AVAILABLE FROM A DOCUMENT SEIZED FROM 118 THE PREMISES DURING SEARCH AND FOUND UNDISCLOSED IN THE RETURN FILED FOR AY 2003 - 2004. CONCLU DING THAT THE LOAN WAS GIVEN OUT OF UNACCOUNTED INCOME, THE AO ADDED IT TO THE INCOME FOR AY 2003 - 2004. AFTER THE CIT (A) CONFIRMED THE ADDITION, THE ASSESSEE APPEALED TO THE ITAT. THE ITAT AGREED WITH THE ASSESSEE THAT SINCE NO MATERIAL WAS FOUND IN THE S EARCH PERTAINING TO THE ADDITION MADE, IT WAS NOT SUSTAINABLE IN LAW. THE ITAT NOTED THAT THE DOCUMENT RECOVERED IN THE SEARCH DURING THE SEARCH DID NOT BEAR THE SIGNATURE OF THE ASSESSEE OR MRS. MOHINI SHARMA, THE ALLEGED BORROWER WHO WAS ALSO NOT EXAMINE D BY THE DEPARTMENT. THE QUESTION BEFORE THE COURT, THEREFORE, WAS WHETHER THE AO HAD WRONGLY INVOKED SECTION 153A OF THE ACT SINCE NO MATERIAL HAD BEEN FOUND DURING THE SEARCH TO JUSTIFY THE ADDITION MADE ? 17. THIS COURT IN CIT V. ANIL KUMAR BHATIA (SUPRA) THEN ANALYSED SECTION 153A OF THE ACT AND EXPLAINED THAT WITH THE INTRODUCTION OF THE GROUP OF SECTIONS, VIZ., SECTIONS 153A TO 153C , THE CONCEPT OF A SINGLE BLOCK ASSESSMENT WAS GIV EN A GO - BY. IT WAS EXPLAINED THAT WHERE A SEARCH WAS MADE AFTER 31ST MAY, 2003 THE AO WAS OBLIGED TO ISSUE NOTICES CALLING UPON THE SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX AYS IMMEDIATELY PRECEDING THE AYS RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. UNDER SECTION 153A , THE AO WAS REQUIRED TO EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. ANOTHER SIGNIFICANT FEATURE WAS THAT THE AO HAD POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. THIS MEANT THAT THERE COULD BE ONLY 119 ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISC LOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. 18. THIS COURT IN CIT V. ANIL KUMAR BHATIA (SUPRA) POSED THE QUESTION AS UNDER: '21. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALR EADY IN EXISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF SEC TION 153A OPENS.' 19. THE COURT THEN EXPLAINED THAT THE CONCEPT OF TIME - LIMIT FOR COMPLETION OF ASSESSMENT OR REASSESSMENT UNDER SECTION 153 HAD BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A AND 'WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF A N ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A , BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE.' THE COURT THEN DEALT WITH THE SECOND PROVISO TO SECTION 153A , WHICH STATES THAT PENDING ASSESSMENT OR REASSESSMENT 120 PROCEEDINGS IN RELATION TO ANY AY FALLING OUT OF THE PERIOD OF SIX AYS PREVIOUS TO THE SEARCH SHALL ABATE. IN SUCH CASES ALL PENDING ASSESSMENTS, THE COURT EXPLAINED THAT ONCE THOSE PR OCEEDINGS ABATE, THE DECKS WERE CLEARED, FOR THE AO TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE. SUCH 'TOTAL INCOME' WOULD INCLUDE 'BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASS ESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION.' THEREFORE, MERELY BECAUSE THE RETURNS OF INCOME FILED BY THE ASSESSEE FOR THE AYS PREVIOUS TO THE DATE OF THE SEARCH ALREADY STOOD PROCESSED UNDER SECTION 153A(1) (A) OF THE ACT IT COULD NOT BE HELD THAT THE PROVISIONS OF SECTION 153A COULD NOT BE INVOKED. 20. AS REGARDS THE MATERIAL UNEARTHED DURING THE SEARCH THE COURT IN CIT V. ANIL KUMAR BHATIA (SUPRA) OBSERVED THAT 'IF IT IS NOT IN DISPUTE THAT THE DOCUMENT WAS FOUND IN THE COURSE OF THE SEARCH OF THE ASSESSEE, THEN SECTION 153A IS TRIGGERED. ONCE THE SECTION IS TRIGGERED, IT APPEARS MANDATORY FOR THE ASSESSING OFFICER TO ISSUE NOTICES UNDER SECTION 153A CALLING UPON THE ASSESSEE TO FILE RETURNS FOR THE SIX ASSESSMENT YEARS PRIOR TO THE YEAR IN WHICH THE SEARCH TOOK PLACE.' THE COURT CLARIFIED IN PARA 24 AS UNDER: '24. WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE, THEREFORE, EXPRESS NO OPINI ON AS TO WHETHER SECTION 153A CAN BE INVOKED EVEN IN SUCH A SITUATION. THAT QUESTION IS THEREFORE LEFT OPEN.' 121 21. THEREFORE IT IS CLEAR THAT THE DECISION IN CIT V. ANIL KUMAR BHATIA (SUPRA) DOES NOT DEA L WITH A SITUATION WHERE, AS IN THE PRESENT CASE, NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. THE DECISION IN CHETAN DAS LACHMAN DAS 22. ON THE SAME DATE AS IT RENDERED THE ABOVE DECISION, THIS COURT ALSO PRONOUNCED ITS DECISION IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA). IN THE LATTER CASE, AGAIN, A SEARCH WAS UNDERTAKEN IN THE ASSESSEE S PREMISES UNDER SECTION 132 OF THE ACT ON 13TH DECEMBER, 2005. THE DECISION ITSELF NOTES: 'IN THE COURSE OF THE SEARCH CERTAIN DOCUMENTS WERE FOUND WHICH ACCORDING TO THE ASSESSING OFFICER SUGGESTED GROSS UNDER INVOICING OF SALES AND SUPPRESSION OF PRODUCTION/ YIELD OF HING.' CONSEQUENTLY THAT WAS AGAIN NOT A CASE WHERE THERE WAS NO MATERIAL UNEARTHED DURING THE SEARCH. THE JUDGEMENT ALSO NOTES THAT IT IS ON THE BASIS OF THE MATERIAL UNEARTHED THAT THE AO MADE ADDITIONS OF S UPPRESSED SALE VALUE OF HING AND COMPOUND HING. THE HIGH COURT INTERFERED WITH THE ORDER OF THE ITAT ON THE GROUND THAT IT HAD FAILED TO EXAMINE THE SEIZED MATERIAL ITSELF TO FIND OUT IF THE FINDINGS OF THE CIT(A) WERE JUSTIFIED. CONSEQUENTLY THE DECISION IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA) DOES NOT DEAL WITH THE FACT SITUATION THAT ARISES IN THE PRESENT CASE. 23. NEVERTHELESS IT IS INTERESTING TO NOTE THAT IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA) THE COURT UNDERSCORED THE NEED FOR TO DEPARTMENT TO HAVE UNEARTHED MATERIAL DURING SEARCH JUSTIFYING THE ASSESSMENT SOUGHT TO BE MADE, IN THE FOLLOWING WORDS: 1 22 '11. ....SECTION 153A (1) (B) PROVIDES FOR THE ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO REPEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD BE ST RICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECT ION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL....' THE DECISION IN MADUGULA VENU 24. TURNING TO THE DECISION IN MADUGULA VENU V. DIRECTOR OF INCOME TAX (SUPRA), THE QUESTION THERE WAS NOT WHETHER IN THE ABSENCE OF ANY INCRIMINATING MATERIAL THE ASSESSMENT COULD BE COMPLETED UNDER SECTION 153A OF THE ACT. NO DOUBT A CONTENTION WAS PUT FORTH ON BEHALF OF THE ASSESSEE THAT 'NO MATERIAL WHICH WOULD IMPLICATE HIM, IN THE EARNING OF ANY UNDISCLOSED INCOME WAS UNEARTHED DURING THE SEARCH AND, THEREFORE, THERE WAS NO BASIS TO ISSUE THE NOTICE UNDER SECTION 153A .' IT MUST BE REMEMBERED THAT THE PETITIONER IN THAT CASE HAD COME FORTH WITH A WRIT PETITION TO CHALLENGE THE SEARCH AND SEIZURE PROCEEDINGS UNDER SECTION 132 OF THE ACT BY QUESTIONING THE VERY ISSUANCE OF NOTICE UNDER SECTION 153A OF THE ACT. IT IS IN THAT CONTEXT THAT THE COURT FOUND NO MERIT IN THE WRIT PETITION AND OBSE RVED THAT ONCE A SEARCH WAS CONDUCTED UNDER SECTION 132 OF 123 THE ACT, IT WAS MANDATORY FOR THE AO TO ISSUE NOTICE TO THE PERSON SEARCHED REQUIRING HIM TO FURNISH RETURNS OF INCOME FOR THE SIX AYS IMMEDIATELY PRECEDING THE AY RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED. THE COURT WAS NOT ENTERING INTO A DISCUSSION ON WHETHER ANY ADDITIONS COULD BE MADE IN THE ASSESSMENT BY THE AO IN THE ABSENCE OF ANY INCRIMINATING MATERIAL UNEARTHED DURING SEARCH. ON THE OTHER HAND, IT LEFT IT OPEN TO THE ASSESSEE TO RAISE ALL CONTENTIONS IN THE ASSESSMENT PROCEEDINGS. THE COURT OBSERVED 'IN CASE HE HAS EVIDENCE OR MATERIAL TO SHOW THAT HE HAS NOT EARNED ANY INCOME WHICH IS NOT DISCLOSED TO THE INCOME TAX A UTHORITIES OR TO REBUT THE MATERIAL GATHERED DURING THE SEARCH, IT IS PERFECTLY OPEN TO HIM TO DO SO.' ONE OBSERVATION IN THE SAID JUDGEMENT IS, HOWEVER, IMPORTANT. WHILE EXPLAINING SECTION 153A OF THE ACT, THE COURT OBSERVED 'IT IS NOT MERELY THE UNDISCLOSED INCOME THAT WILL BE BROUGHT TO TAX IN SUCH ASSESSMENTS, BUT THE TOTAL INCOME OF THE ASSESSEE, INCLUDING BOTH THE INCOME EARLIER DISCLOSED AND INCOME FOUND CONSEQUENT TO THE SEARCH, WOULD BE BROUGHT TO T AX.' THE COURT, HOWEVER, DID NOT ANSWER THE QUESTION OF WHETHER A FINDING OF UNDISCLOSED INCOME WOULD HAVE TO BE BASED ON SOME MATERIAL UNEARTHED DURING THE SEARCH. THE DECISION IN CANARA HOUSING 25. THE COURT WOULD ALSO LIKE TO REFER TO A JUDGEMENT OF T HE KARNATAKA HIGH COURT DATED 25TH JULY, 2014 IN ITA NO.38/2014 ( M/S. CANARA HOUSING DEVELOPMENT COMPANY V. THE DCIT ). THERE THE ASSESSEE, WHICH WAS CARRYING ON REAL ESTATE BUSINESS FILED ITS RETURN FOR AY 2008 - 2009. HIS CASE WAS TAKEN UP UNDER SECTION 124 143(3) OF THE ACT AND AN ORDER CAME TO BE PASSED ON 31ST DECEMBER, 2010. SUBSEQUENTLY A SEARCH TOOK PLACE IN THE PREMISES OF THE ASSESSEE UNDER SECTION 132 OF THE ACT ON 12TH APRIL, 2011. THE JUDGEMENT NOTES 'IN THE COURSE OF SEARCH, INCRIMINATING MATERIAL LEADING TO UNDISCLOSED INCOME WAS SEIZED.' THE NOTICE WAS ISSUED TO THE ASSESSEE UNDER SECTION 153A(1) OF THE ACT TO FILE RETURN OF INCOME ON 13TH JANUARY, 2012. EVEN WHILE THE RETURN WAS UNDER CONSIDERATION, THE CIT INITIATED PROCEEDINGS UNDER SECTION 263 OF THE ACT ON THE GROUND THAT THE ORDER PASSED ON 31ST DECEMBER, 2010 UNDER SECTION 143(3) OF THE ACT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. WHEN THE CIT NEGATED THE OBJECTIONS OF THE ASSESSEE TO THE SAID ORDER, THE ASSESSEE APPEALED TO THE ITAT. THE ITAT NEGATED THE PLEA OF THE ASSESSEE THAT BY VIRTUE OF THE PROCEEDINGS INITIATED UNDER SECTION 153A OF THE ACT, THE ASSESSMENT FOR SIX YEARS STOOD RE OPENED AND IT IS FOR THE ASSESSING AUTHORITY TO PASS APPROPRIATE ORDER ON THE BASIS OF THE RETURN FILED UNDER SECTION 153A(1)(A) OF THE ACT. 26. IN THE HIGH COURT THE QUESTION WAS WHETHER THE CIT COULD INV OKE THE POWER UNDER SECTION 263 OF THE ACT ONCE THE PROCEEDINGS UNDER SECTION 153A WAS INITIATED. THE HIGH COURT IN CANARA HOUSING (SUPRA) ANSWERED THE QUE STION IN THE NEGATIVE. IT REFERRED TO THE DECISION OF THIS COURT IN CIT V. ANIL KUMAR BHATIA (SUPRA) AND CAME TO THE CONCLUSION THAT ONCE PROCEEDINGS ARE INITIATED UNDER SECTION 153A OF THE ACT THE LEGAL EFFECT WAS THAT EVEN WHERE AN ASSESSMENT ORDER IS PASSED, IT WOULD STAND REOPENED. IN THE EYE OF LAW THERE WAS NO ORDER OF ASSESSMENT. IT MEANT THAT THE AO 'SHALL ASSESS OR REASSESS THE TOTAL INCOME OF 125 SIX ASSESSMENT YEARS. ONCE THE ASSESSMENT IS REOPENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RETURN, ANY UNDISCLOSED INCOME FOUND DURING SEARCH OR AND ALSO ANY OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNEARTHED DURING THE SEARCH, IN ORDER TO FIND OUT WHAT IS THE 'TOTAL INCOME' OF EACH YEAR AND THEN PASS THE ASSESSMENT ORDER.' 27. IT IS IMPORTANT TO NOTE THAT CANARA HOUSING WAS ALSO A CASE WHERE SOME MATERIAL WAS UNEARTHED DURING THE SEARC H. FURTHER, THE HIGH COURT WAS CLEAR THAT THE ADDITION TO THE INCOME ALREADY DISCLOSED WOULD HAVE TO BE BASED ON SOME MATERIAL UNEARTHED DURING THE SEARCH. THIS IS CLEAR FROM THE OBSERVATION IN PARA 9 OF THE DECISION TO THE EFFECT: 'THE AO IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH.' IT WAS FURTHER OBSERVED THAT IN THE FACTS OF THAT CASE IF THE CIT HAD COME ACROSS ANY INCOME THAT THE AO HAD NOT TAKEN NOTE OF WHILE PASSING THE EARLIER ORDER, 'THE SAID MATERIAL CAN BE FURNISHED TO THE ASSESSING AUTHORITY' WHO WILL TAKE NOTE OF IT WHILE DETERMINING TOTAL INCOME. THE DECISION IN FILATEX INDIA LTD. 28. IN FIL ATEX INDIA LTD. V. CIT - IV (SUPRA), ONE OF THE QUESTIONS FRAMED WAS WHETHER THE ITAT ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT RE - COMPUTATION OF BOOK PROFIT, DE - HORS ANY MATERIAL FOUND DURING THE COURSE OF SEARCH, IN THE ORDER PASSED UNDER SECTION 153A OF THE ACT WAS WITHOUT JURISDICTION, BEING OUTSIDE THE SCOPE OF PROCEEDINGS UNDER THAT SECTION? THE FACTS OF 126 THE CASE WERE THAT THERE WAS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 18 TH JANUARY, 2006 AND SUBSEQUENT DATES. THIS INCLUDED A STATEMENT OF THE GENERAL MANAGER (MARKETING). ON THE BASIS OF THE SAID MATERIAL AND STATEMENT ADDITIONS WERE MADE TO THE DISCLOSED INCOME UNDER SECTION 115 JB ALTHO UGH NO MATERIAL WAS FOUND SPECIFIC TO SUCH ADDITION. THE COURT HELD THAT UNDER SECTION 153A 'THE ADDITIONS NEED NOT BE RESTRICTED OR LIMITED TO THE INCRIMINATING MATERIAL, WHICH WAS FOUND DURING THE COURSE OF SEARCH.' CONSEQUENTLY EVEN IF NO INCRIMINATING MATERIAL WAS FOUND FOR THE ADDITION UNDER SECTION 115JB OF THE ACT, SINCE THERE WAS SOME INCRIMINATING MATERIAL FOUND WHICH WOULD SUSTAIN ADDITIONS MADE AND SINCE THE 'TOTAL INCOME' HAD TO BE COMPUTED, THEY WERE SUSTAINED BY THE HIGH COURT. 29. IN FILATEX INDIA LTD. THE COURT SOUGHT TO EXPLAIN T HE OBSERVATIONS IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA) IN THE FOLLOWING MANNER: '3. LEARNED COUNSEL FOR THE APPELLANT - ASSESSEE HAS RELIED ON THE DECISION OF THIS COURT IN CIT V. CHETAN DAS LACHMAN DAS [20121 211 TAXMAN 61/25 TAXMANN.COM 227. THE SAID DECISION NOTICES INSERTION OF SECTION 153A BY FINANCE ACT , 2003, ITS PURPOSE AND OBJECT, AND THE EARLIER PROCEEDINGS FOR BLOCK ASSESSMENT UNDER CHAPTER XIVB, THE DIFFICULTIES AND THE LEGAL ISSUES WHICH HAD ARISEN ON THE DIFFERENCE BETWEEN REGULAR ASSESSMENT AND BLOCK ASSESSMENT. IT IS IN THIS CONTEXT THAT IN THE CASE OF CHETAN DAS LACHMAN DAS (SUPRA), THE DI VISION BENCH, [TO WHICH ONE OF US (SANJIV KHANNA, J) WAS A PARTY], HAS OBSERVED THAT SECTION 127 153A(1 )(B) PROVIDES FOR ASSESSMENT OR RE - ASSESSMENT OF THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PREC EDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. IT WAS EMPHASIZED THAT THERE IS NO CONDITION IN THIS SECTION THAT THE ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF THE SEARCH O R OTHER POST SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER, RELATED TO THE EVIDENCE FOUND. SUBSEQUENT OBSERVATION TO THE EFFECT THAT THE ASSESSMENT UNDER SECTION 153A SHOULD NOT BE ARB ITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL, IS BASICALLY CLARIFICATORY THAT THE ASSESSMENT UNDER SECTION 153A EMANATES AND STARTS ON THE FOUNDATION OF THE SEARCH, WHICH IS THE JU RISDICTIONAL PRECONDITION. THE ADDITIONS CANNOT AND SHOULD NOT BE ARBITRARY....' 30. THE ABOVE PASSAGE IN FILATEX INDIA LTD. (SUPRA), PARAPHRASES INTER ALIA, THE FOLLOWING LINE IN CIT V. CHETAN DAS LACHM AN DAS (SUPRA): 'THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL'. HOWEVER, THE IMMEDIATELY NEXT LINE IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA)READS: 'OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL....' 31. WHAT DISTINGUISHES THE DECISIONS BOTH IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA) AND FILATEX INDIA LTD. V. CIT - IV (SUPRA) IN THEIR APPLICATION TO THE PRESENT CASE IS THAT IN BOTH THE SAID CASES THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH, WHEREAS IN THE PRESENT CASE THERE ADMITTEDLY WAS NONE. 128 SECONDLY, IT IS PLAIN FROM A CAREFUL READING OF THE SAID TWO DECISIONS THAT THEY DO NOT HOLD THAT ADDITIONS CAN BE VALIDLY MADE TO INCOME FORMING THE SUBJECT MATTE R OF COMPLETED ASSESSMENTS PRIOR TO THE SEARCH EVEN IF NO INCRIMINATING MATERIAL WHATSOEVER WAS UNEARTHED DURING THE SEARCH. 32. RECENTLY BY ITS ORDER DATED 6TH JULY 2015 IN ITA NO. 369 OF 2015 (PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. ), THIS COURT DECLINED TO FRAME A QUESTION OF LAW IN A CASE WHERE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BEING FOUND DURING THE SEARCH UNDER SECTION 132 OF THE ACT, THE REVENUE SOUGHT TO JUSTIFY INI TIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOGUS SHARE CAPITAL GAIN. THE ORDER OF THE CIT(A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH. THE DECISION IN JAI STEEL INDIA 33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT (SUPRA) INVOLVED A CASE WHERE CERTAIN BOOKS OF ACCOUNTS AND OTHER DOC UMENTS THAT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COURSE OF SEARCH. IT WAS HELD WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDE RATION WHILE COMPUTING THE TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE COURT THEN EXPLAINED AS UNDER: 129 '22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE.' 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FREE TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHI LE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT ON THE GROUND THAT IT WAS 'NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION' WHICH WAS IN THE CONTEXT OF SEARCH A ND/OR REQUISITION. THE COURT ALSO EXPLAINED THE PURPORT OF THE WORDS 'ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER: '26. THE PLEA RAISED ON BEHAL F OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN 130 ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS.' THE DECISION IN CONTINENTAL WAREHOUSING 35. IN COMMISSIONER OF INCOME TAX V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD . [2015] 58 TAXMANN.COM 78 (BOM) THE QUESTION ADDRESSED BY THE BOMBAY HIGH COURT WAS WHETHER THE SCOPE OF ASSESSMENT UNDER SECTION 153A ENCOMPASSES ADDITIONS, NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH? IT WAS HELD THAT NO ADDITION COULD BE MADE IN RESPECT OF THE ASSESSMENTS THAT HAD BECOME FINAL IN THE EVENT NO INCRIMINATING MATERIAL WAS FOUND DURING SEARCH. THE BOMBAY HIGH COURT RELIED ON THE EARLIER DECISION IN CIT V. M/S. MURLI AGRO PRODUCTS LTD . (SUPRA) AND DISCUSSED THE SCOPE AND AMBIT OF THE PROCEEDINGS FOR ASSESSMENT AND REASSES SMENT OF TOTAL INCOME UNDER SECTION 153A (1) OF THE ACT AND THE PROVISOS THERETO. ONE OF THE SPECIFIC PLEAS TAKEN BY THE ASSESSEE WAS THAT IF NO INCRIMINATING MATERIAL WAS FOUND DURING 131 THE COURSE OF SEARCH IN RESPECT OF AN ISSUE THEN NO ADDITION IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ASSESSMENT UNDER SECTIONS 153A AND 153C . IT WAS OBSERVED THAT THE ASSESSM ENT OR REASSESSMENT UNDER SECTION 153A ARISES ONLY WHEN A SEARCH HAS BEEN INITIATED AND CONDUCTED AND, THEREFORE, 'SUCH AN ASSESSMENT HAS A VITAL LINK WITH THE INITIATION AND CONDUCT OF THE SEARCH.' THE COURT THEN REPRODUCED AND AFFIRMED THE DECISION OF THE SPECIAL BENCH OF THE ITAT IN ALL CAR GO GLOBAL LOGISTICS LTD. V. DEPUTY COMMISSIONER OF INCOME TAX [2012] 23 TAXMANN.COM 103 (MUM.) (SB) AND ANSWERED THE QUESTION AS REGARDS THE SCOPE OF THE ASSESSMENT OF TOTAL INCOME AS UNDER: '53. ....WE ARE OF THE VIEW THAT FOR ANSWERING THIS QUESTION, GU IDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1) . IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO ACCOUNT WHILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL INCOME UNDER THE AFORESAID PROVISION. SIMILAR POSITION WILL OBTAIN IN A CASE WHERE UNDISCLOSED INCOME OR U NDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF SEARCH. IN OTHER WORDS, HARMONIOUS INTERPRETATION WILL PRODUCE THE FOLLOWING RESULTS: (A) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE ORIGINAL ASSESSMENT AND ASSESSMENT U/S 153A MERGE INTO ONE AND ONLY ONE ASSESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MADE SEPARATELY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO, (B) IN RESPECT OF NON - ABATED 132 ASSESSMENTS, THE ASSES SMENT WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF SEARCH, AND UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVERED IN THE COURSE OF SEARCH' 36. ULTIMATELY I N CONTINENTAL WAREHOUSING (SUPRA), THE BOMBAY HIGH COURT ANSWERED THE QUESTION FRAMED BY IT AS UNDER: 'A. IN ASSESSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153AFOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY; B. IN OTHER CASES, IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS - (I) BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH.' SUMMARY OF THE LEGAL POSITION 37. ON A CONSP ECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAK ES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE 133 PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS Y EAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORM AL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX Y EARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASS ESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. 134 VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISD ICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHE R MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002 - 03, 20 05 - 06 AND 2006 - 07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 135 52 . THIS PREPOSITION WAS ALSO NOTED AND FOLLOWED BY THE HON'BLE HIGH COURT . AT THIS STAGE, IT IS ALSO RELEVANT TO NOTE THAT THESE DOCUMENTS MENTIONED IN THE SATISFACTION NOTE OF THE AO OF THE OTHER PERSONS I.E. PRESENT ASSESSEE DO NOT BELONG TO A.Y 2006 - 07 OR 2007 - 08, THUS, INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE IS BAD IN LAW AND VOID AB INITIO. ACCORDINGLY, GROUND NOS. 2 AND 3 IN ALL THE THREE APPEALS OF THE ASSESSEE ARE AL LOWED. 53. SINCE BY EARLIER PART OF THIS ORDER WE HAVE ALLOWED LEGAL GROUND NOS. 2 AND 3 AND CAME TO A CONCLUSION THAT INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT WAS AB INI TIO VOID AND THE SAME WAS NOT VALID ASSUMPTION OF JURISDI CTION FOR PROCEEDINGS U/S 153C OF THE ACT. THEREFORE, OTHER GROUNDS OF THE ASSESSEE IN ALL THREE APPEALS ON MERITS BECOME ACADEMIC AND INFRUCT U OUS AND WE DISMISS THE SAME WITHOUT ANY FURTHER DELIBERATIONS. ITA NO. 7061/DEL/2014. M/S SUNNY INFRA PROJECTS LTD [A.Y 2010 - 11 54. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) XXVI, NEW DELHI DATED 9.12.2014 IN APPEAL NO. 107/2014 - 15 FOR A.Y 2010 - 11. 136 55. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS 13 GROUNDS OF APPEAL, BUT AS PER T HE REQUEST OF BOTH THE PARTIES, FIRST OF ALL WE TAKE UP THE LEGAL OBJECTIONS OF THE ASSESSEE CONSISTING GROUND NOS. 2 AND 3 WHICH READ AS UNDER: 2. THE LD. CIT(A) BEFORE DISMISSING THE APPEAL HAS NOT GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD WHICH I S AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND IS BAD IN LAW AND HENCE LIABLE TO BE QUASHED. 3. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE ISSUANCE OF NOTICES U/S 153C /142(1)/143(2) OF THE ACT AS WELL AS THE PROCEEDINGS CONDUCTED THEREUNDER IS BAD IN L A W AND IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 56. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. THE LD. AR SUBMITTED THAT IT IS NECESSARY THAT BEFORE THE PROVISIONS OF SECTION 153C OF THE ACT CAN BE INVOKED, THE AO OF THE SEARCHED PERSON MUST BE SATISFIED THAT THE SEIZED MATERIAL WHICH INCLUDES DOCUMENTS DOES NOT BELONG TO THE PERSON REFERRED TO IN SECTION 153A OF THE ACT [I.E. THE SEARCHED PERSON]. THE LD. AR SUBMITTED THAT IN THE IMPUGNED SATISF ACTION NOTE, THER E IS NOTHING TO INDICATE THAT THE SEIZED DOCUMENTS DO NOT BELONG TO THE MINDA GROUP AND MERE FINDING OF PHOTOCOPIES IN THE POSSESSION OF THE 137 SEARCHED PERSON DOES NOT NECESSARILY MEAN AND IMPLY THAT THEY BELONG TO THE PERSON WHO HELD THE OR IGINALS OR IN WHOSE NAME THEY PERTAIN. THE LD. AR FURTHER POINTED OUT THAT THE POSSESSION OF DOCUMENTS AND POSSESSION OF PHOTOCOPIES OF THE DOCUMENTS ARE TWO SEPARATE THINGS. WHILE THE MINDA GROUP MAY BE THE OWNER OF THE PHOTOCOPIES BUT IT DOES NOT GET ESTABLISHED THAT THE SAME BELONG TO THE ASSESSEE APPELLANT. UNLESS IT IS ESTABLISHED THAT THE DOCUMENTS IN QUESTION WHETHER THEY BE PHOTOCOPIES OR ORIGINALS, DO NOT BELONG TO THE SEARCHED PERSON, THE QUESTION OF INVOKING SECTION 153C OF THE SAID ACT DOES NOT ARISE AND VARIOUS COURTS HAVE QUASHED THE PROCEEDINGS INITIATED U/S 153C OF THE ACT ON THIS PROPOSITION. THE LD. AR OF THE ASSESSEE APPELLANT PLACED RELIANCE ON FOLLOWING JUDGMENTS/ORDER : A) DSL PROPERTIES (P) LTD VS. DCIT 60 SOT 88 [URO] [DEL] B) PE PSICO INDIA HOLDINGS P. LTD VS. ACIT 370 ITYR 295 [DEL] C) NATURAL PRODUCTS BIO TECH LTD VS. DCIT 153 ITD 58 [DEL] D) DCIT VS. QUALITRON COMMODITIES P. LTD 167 TTJ 553 [DEL] E) SATYAM FOOD SPECIALITIES P. LTD VS. DCIT 68 SOT 449 138 57. THE LD. AR PARTED WITH THE ARGUMENTS THAT PRECONDITIONS FOR ISSUANCE OF NOTICE U/S 153C OF THE ACT HAVE NOT BEEN SATISFIED IN THE INSTANT C A SE, AS NO DOCUMENT BELONGING TO THE ASSESSEE HAVE BEEN FOUND FROM THE PREMISES OF THE SEARCHED PERSON I.E. MINDA GROUP AND CONSEQUENTLY TH E NOTICE DATED 29.11.2013 ISSUED UNDER SECTION 153C OF THE ACT DESERVES TO BE QUASHED AND ACCORDINGLY, ALL THE PROCEEDINGS PURSUANT THERETO ALSO BE QUASHED. THE LD. AR LASTLY CONTENDED THAT THE ABOVE JURISDICTIONAL ISSUE IS COVERED BY VARIOUS JUDGEMENTS / ORDERS OF THE HON'BLE HIGH COURT AND TRIBUNAL INCLUDING THE RECENT JUDGMENT OF THE ITAT SPECAIL BENCH NAGPUR IN THE CASE OF RAHUL KUMAR BAJAJ VS. ITO REPORTED IN 69 ITD 1. 58. REPLYING TO THE ABOVE, THE LD. DR SUBMITTED THAT THIS ISSUE WAS NOT RAISED BEFO RE THE LD. CIT(A) THEREFORE, THE ASSESSEE CANNOT RAISE THIS ISSUE BEFORE THE TRIBUNAL AS SECTION 124 OF THE ACT PUT A RIDER ON AGITATING THE SAME BEFORE THE TRIBUNAL. THE LD. DR POINTED OUT THAT IN THE SATISFACTION NOTE DATED 29.11.2013, THERE IS A MENTION OF SEIZED DOCUMENTS VIZ FINANCIAL TRANSACTIONS RECORDED AND PERTAINS TO SUNNY INFRA PROJE C TS AND FINANCIAL TRANSACTIONS WHICH ARE TAX AUDIT REPORT, FINANCIAL STATEMENTS AND TRIAL BALANCES, BELONGING TO THE ASSESSEE. THEREFORE, NOTICE U/S 153C OF T HE AT WAS RIGHTLY ISSUED AND SUBSEQUENT 139 PROCEEDINGS THERETO, CANNOT BE HELD AS BAD IN LAW. THE LD. DR FURTHER SUBMITTED THAT DURING THE SEARCH AND SEIZURE OPERATIONS AT MINDA GROUP, NUMBER OF DOCUMENTS BELONGING TO THE PRESENT ASSESSEE WERE SEIZED. THERE FORE, IT CANNOT BE SAID THAT THE NOTICE U/S 153C OF THE ACT WAS ISSUED BY THE AO WITHOUT ANY INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE. 59. THE LD. COUNSEL FOR THE ASSESSEE PLACED REJOINDER TO THE ABOVE SUBMISSION AND CONTENTIONS OF THE LD. DR AN D SUBMITTED THAT SECTION 124 OF THE ACT IS RELATED TO TERRITORIAL JURISDICTION OF THE AO AND THE LEGAL OBJECTION OF THE ASSESSEE IS NOT RELATED TO THE TERRITORIAL JURISDICTION ISSUE. BUT THE SAME IS RELATED TO THE VALID ASSUMPTION OF JURISDICTION FOR ISSU ANCE OF NOTICE U/S 153C OF THE ACT. THE LD. AR ALSO POINTED OUT THAT EVEN IF THE DOCUMENTS ENLISTED IN THE SATISFACTION NOTE WHICH ARE TAX AUDIT REPORT, FINANCIAL STATEMENT AND TRIAL BALANCE SHEET FOR A.Y 2011 - 12 IS CONSIDERED AS BELONGING TO THE ASSESSE E. THEN ALSO NO ADDITION CAN BE MADE ON THE BASIS OF THESE DOCUMENTS FOR TH A.Y UNDER CONSIDERATION IN THIS APPEAL I.E A.Y 2010 - 11. THE LD. AR ALSO POINTED OUT THAT THERE MAY BE NUMBER OF DOCUMENTS WITH THE AO OF THE SEARCHED PERSON BUT UNLESS AND UNTIL THESE ARE NOT HANDED OVER TO THE AO OF THE OTHER PERSON AND SAME ARE NOT FOUND RECORDED IN THE 140 SATISFACTION NOTE OF THE SEARCHED PERSON AND THE AO OF THE OTHER PERSON, THEN THE SAME CANNOT BE CONSIDER AS BASIS FOR VALID ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT. THE LD. AR VEHEMENTLY POINTED OUT THAT THE AO PROCEEDED TO ISSUE NOTICE U/S 153C OF THE ACT FOR A.Y 2010 - 11 AND THERE WAS NO DOCUMENT OR ANY OTHER THING WITH THE AO NEITHER AT THE TIME OF ISSUING OF NOTICE U/S 153C OF THE ACT NOR AT THE TIME O F PASSING OF THE IMPUGNED ORDER. THE LD. COUNSEL VEHEMENTLY POINTED OUT THAT THE AO HAD NO VALID JURISDICTION TO ISSUE NOTICE U/S 153C OF THE ACT AND THE LD. DR COULD NOT POINT OUT THAT ANY SATISFACTION NOTE WAS RECORDED BY TH E AO OF THE SEARCHED PERSON. THEREFORE , THE CASE OF THE ASSESSEE IS CLEARLY COVERED IN ITS FAVOUR BY THE JUDGMENT OF THE DELHI HON'BLE HIGH COURT IN THE CASE OF PEPSICO HOLDING INDIA P. LTD. [SUPRA]. 60. ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSIONS OF BOTH THE SIDES, AT THE VER Y OUTSET, WE NOTE THAT ON 29.11.2013, THE AO OF THE PRESENT ASSESSEE RECORDED SATISFACTION NOTE FOR INITIATION OF PROCEEDINGS U/S 153C OF THE ACT AND ISSUANCE OF NOTICE UNDER THE SAME PROVISION. FOR THE SAKE OF CLARITY, IN OUR FINDINGS, THE SAID SATISFACT ION NOTE IS BEING ENCLOSED TO THIS ORDER AS ANNEXURE D, WHICH WOULD FORM PART OF THIS ORDER. 141 61 UNDISPUTEDLY AND ADMITTEDLY, THE PRESENT CASE IS RELATED TO A.Y 2010 - 11 AND FROM THE SATISFACTION NOTE, ANNEXURE D, IT IS AMPLY CLEAR THAT THE FINANCIAL TRANSA CTIONS RECORDED IN PAGE 36 TO 56 AND PAGE 13 ARE TAX AUDIT REPORTS, FINANCIAL STATEMENTS AND TRIAL BALANCES PERTAINING TO A.Y 2011 - 12. THIS FACTS ALSO GETS SUPPORT FROM THE WRITTEN SUBMISSION O F THE LD. DR DATED 21.10.2015. HENCE WE ARE INCLINED TO HOLD THAT THERE WAS NO DOCUMENT RELEVANT TO A.Y 2010 - 11 BEFORE THE AO OF THE SEARCHED PERSON I.E. PRESENT ASSESSEE NEITHER AT THE TIME OF RECORDING SATISFACTION U/S 153C OF THE ACT ON 29.11.2013 NOR AT THE TIME F PASSING THE IMPUGNED REASONED ORDER U/S 143(3) R .W.S 153C OF THE ACT . 62 NEXT QUESTION POSED BY THE LD. CIT - DR IS THAT THE ASSESSEE IS PREVENTED BY SECTION 124 OF THE ACT FOR RAISING JURISDICTION ISSUE WHEN THE ASSESSEE HAS NOT RAISED ANY OBJECTION BEFORE THE AO AND THE LD. CIT(A) ON THIS COUNT. ON BA RE READING OF SECTION 124 OF THE ACT, IT IS AMPLY CLEAR THAT THIS PROVISION IS RELATED TO TERRITORIAL JURISDICTION OF THE ASSESSEE WHICH IS NOT THE CONTROVERSY BEFORE US AND WE HAVE ALREADY DISCUSSED IN THE EARLIER PART OF THIS ORDER THAT THIS LEGAL OBJECT ION OF THE LD. DR IS NOT TENABLE AND MAINTAINABLE . FURTHER, AS WE HAVE TO DECIDE THE LEGAL OBJECTION OF THE ASSESSEE AS TO WHETHER AT THE 142 TIME OF INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE AT THERE WAS ANY DOCUMENT ETC. WITH THE AO O F THE ASSESSEE I.E. THE OTHER PERSON PERTAINING TO A.Y 2010 - 11 AND IN THE GROUNDS RAISED BEFORE THE LD. CIT(A) IT IS CLEAR THAT THE ASSESSEE CHALLENGED ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT BEFORE THE LD. CIT(A) IN GROUND NOS. 1 AND 2 BEFORE THE F IRST APPELLATE AUTHORITY AND THESE ARGUMENTS OF THE LD. CIT - DR BECOMES BASELESS AND INCORRECT IN VIEW OF THE COPY OF FORM NO. 35 PLACED ON RECORD BEFORE US. 63. WHEN WE CONSIDER THE RATIO OF THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CAS E OF PEPSICO HOLDINGS P. LTD [SUPRA], THEN IT IS CLEAR THAT THERE MUST BE DOCUMENT ETC BEFOR E THE AO OF THE SEARCHED PERSON AT THE TIME OF INITIATION OF PROCEEDINGS U/S 153C OF THE ACT BELONG TO THE ASSESSEE BUT IN THE PRES ENT CASE, THE LD. CIT - DR COULD NOT POINT OUT ANY DOCUMENT BEFORE THE AO OF THE PRESENT ASSESSEE AT THE TIME OF INITIATION OF PROCEEDINGS U/S 153C O F THE ACT AND ISSUANCE OF NOTICE UNDER THE SAME PROVISION RELEVANT TO A.Y 2010 - 11 AND THUS THE RATIO OF THE DECI SION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PEPSICO HOLDINGS P. LTD [SUPRA] CLEARLY SUPPORTS THE CASE OF THE ASSESSEE. 143 64. LAST QUESTION FOR ADJUDICATION IS THAT WHETHER IN THE ABSENCE OF SATISFACTION RECORDED BY THE SEARCHED PERSON, PROCEEDI NGS AND NOTICE U/S 153C OF THE ACT ARE VALID. FOR THIS PROPOSITION, THE LD. AR HAS RELIED ON THE DECISION S [SUPRA] W HEREIN IT WAS HELD THAT FOR INITIATION OF PROCEEDINGS U/S 153 OF THE ACT AND FOR ISSUANCE OF NOTICE UNDER THIS PROVISION , IT IS FIRST OF AL L MANDATORY THAT THE AO OF THE SEARCHED PERSONS WHO RECORDED IS SATISFIED THAT THE DOCUMENT ETC DOES NOT BELONG TO THE SEARCHED PERSON AND IF THE FIRST STEP HAS NOT BEEN FOLLOWED BY THE AO OF THE SEARCHED PERSON, ALL SUBSEQUENT PROCEEDINGS IN PURSUANCE THE RETO ARE FUTILE AND DESERVE TO BE QUASHED. 65. THIS PROPOSITION HAS BEEN REITERATED SEVERAL TIMES BY THE HON'BLE HIGH COURT AND CO - ORDINATE BENCHES OF THE TRIBUNAL AND COUNSEL OF THE ASSESSEE HAS RELIED ON PLETHORA OF DECISIONS/ORDER TO SUPPORT THIS PROPO SITION INCLUDING THE RECENT ORDER OF THE ITAT DELHI BENCH IN THE CASE OF TANVIR COLLECTIONS P. LTD. VS. ACIT REPORTED IN 168 TTJ 145. ON A SPECIFIC QUERY FROM THE BENCH, THE LD. CIT - DR COULD NOT ASSIST US AS TO WHETHER ANY SATISFACTION NOTE WAS RECORDED B EFORE HANDING OVER THE IMPUGNED DOCUMENTS TO THE AO OF THE SEARCHED PERSON I.E. THE PRESENT ASSESSEE. THUS, IN THE ABSENCE OF ANY DOCUMENT OR ANY OTHER CONTENTION ON RECORD BEFORE US, IT IS SAFELY PRESUMED THAT THE AO OF THE 144 SEARCHED PERSON I.E. MINDA GRO UP DID NOT RECORD ANY SATISFACTION BEFORE HANDING OVER THE IMPUGNED DOCUMENTS TO THE AO OF THE PRESENT ASSESSEE. THEREFORE, IN OUR CONSIDERED OPINION, IN THE ABSENCE OF SUCH SATISFACTION NOTE BY THE AO OF THE SEARCHED PERSON, THE AO OF THE SEARCHED PERSON MISERABLY FAILED TO CONFER ANY LAWFUL AND VALID JURISDICTION ON THE AO OF THE PRESENT ASSESSEE TO PROCEED WITH THE INITIATION OF PROCEEDINGS AND ISSUANCE OF NOTICE U/S 153C OF THE ACT. HENCE , WE SET ASIDE THE INITIATION OF PROCEEDINGS AND ISSUANCE OF NOT ICE U/S 153C OF THE ACT AND ALSO HOLD THAT THE IMPUGNED ASSESSMENT ORD ER PASSED IN PURSUANCE THERETO I S VOID AB INITIO. 66. SINCE WE HAVE HELD THAT THE IMPUGNED ASSESSMENT PROCEEDINGS AND ASSESSMENT ORDER U/S 153C OF THE ACT AS VOID AB INITIO, THE OTHER G ROUNDS OF THE ASSESSEE APPELLANT ON MERITS ARE OF NO CONSEQUENCE IN VIEW OF LACK OF JURISDICTION OF THE AO TO PROCEED WITH THE ASSESSMENTS U/S 153C OF THE ACT. IN VIEW OF OUR DECISION ON THE LEGAL ISSUE, AS NOTED ABOVE, THERE IS NO NEED TO ESPOUSE THE OTH ER GROUNDS TAKEN BY THE ASSESSEE AGITATING OTHER LEGAL ISSUES ON MERITS AND THE SAME ARE DISMISSED AS HAVING BECOME INFRUCTUOUS IN ALL THE FOUR APPEALS. 145 67. IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE S STAND ALLOWED ON LEGAL GROUNDS NOS. 2 AND 3. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 27 . 0 1.201 6 . SD/ - SD/ - (L.P. SAHU) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH JANUARY , 201 6 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI