Smt Sadhna Vohra, Bhopal V. ITO 1(3), Bhopal

ITA 735/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8284 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: A GOYAL; N D PATWA A RS
• Keywords: Unexplained investment; Capital asset; Document seized; Reasonable cause; Documents seized
• Section: 143(3); 153A; 131; 132; 69

Judgement Text

[ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.735/IND/2018 ASSESSMENT YEAR: 2010-11 SMT. SADHNA VOHRA 12, COMFORT GARDEN, CHUNA BHATTI BHOPALK / VS. ITO - 1(3) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. ABRPV6114G APPELLANT BY SHRI A. GOYAL & SHRI N.D. PATWA, A.RS RESPONDENT BY SHRI R.P. MOURYA, DR DATE OF HEARING: 27.06.2019 DATE OF PRONOUNCEMENT: 18.07.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2010-11 AGAINST THE ORDER OF [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 2 COMMISSIONER OF INCOME TAX (A)-1, BHOPAL DATED 27.6.2018. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THAT THE NOTICE ISS UED U/S 153C AND THE REASONS RECORDED FOR ISSUING SUCH NOTICE ARE NO T VALID AND PROPER ON THE BASIS OF WHICH ACTION U/S 153C CAN BE TAKEN. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.4,08, 131/- MADE U/S 69 OF THE ACT FOR UNDISCLOSED INVESTMENT IN PURCHAS E OF LAND WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE APPELLAN T AND WITHOUT APPRECIATING THE FACTS THAT THE INVESTMENT WAS MADE BY PROPER SOURCES AND NOTHING IS UNEXPLAINED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO URGE, TO ALTER OR TO AMEND ANY OF THE GROUND OF APPEAL ON OR BEFORE THE DATE O F HEARING. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT A SEARCH & SEIZURE ACTION U/S 132 OF THE INCOME TAX AC T, 1961 (HEREINAFTER CALLED AS THE ACT) WAS CARRIED OUT AT THE PREMISES OF M/S. FORTUNE BUILDER AND M/S. FORTUNE SOUMYA HOUSING, BHOPAL ON 30.11.2012. DURING THE COURSE OF SEARCH VARIOUS DOCUMENTS WERE SEIZED FROM T HE SEARCHED PREMISES BELONGING TO THE ASSESSEE. A STATEM ENT OF THE ASSESSEE U/S 131 OF THE ACT ON 30.4.2013 WAS AL SO RECORDED, WHEREIN SHE HAD ADMITTED THAT SHE HAD SOLD 3 [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 3 ACRES OF LAND IN M/S. FORTUNE SOUMYA HOUSING, BHOPAL ON 9.8.2011 FOR RS.61 LAKHS. NOTICE U/S 153C OF THE AC T WAS ISSUED AND THE ASSESSMENT U/S 153C R.W.S. 143(3) OF T HE ACT WAS FRAMED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. OBSERVED THAT THE ASSESSEE HAD PURCHASED SOME LAND ON 4.6.2009 FROM 3 PERSONS FOR A TOTAL CONSIDERATION OF RS.4,08,131/-. THE A.O. NOT FINDING THE EXPLANATION OF THE ASSESSEE ACCEPTABLE, MADE ADDITION OF RS.4,08,121/- AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. AGGREIVED AGAINST THIS, ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISS IONS SUSTAINED THE ADDITION. AGAINST THIS, THE ASSESSEE IS IN PRESENT APPEAL BEFORE THIS TRIBUNAL. THE PRESENT APPEAL IS BARRED BY 7 DAYS. THE ASSESSEE HAS FILED AN APPLICATION ALONG WITH AN AFFIDAVIT SEEKING CONDONATION OF THE DELA Y. IT IS STATED THAT DUE TO ILLNESS OF THE ASSESSEE, THE APPE AL [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 4 COULD NOT BE FILED IN TIME. THE ASSESSEE HAS ALSO FI LED A CERTIFICATE BY DR. AJAY THETE. 3. LD. D.R. OPPOSED THE APPLICATION. HOWEVER, LOOKING TO THE SUBMISSIONS MADE IN THE APPLICATION AND MEDICAL CERTIFICATE SO FURNISHED, WE ARE OF THE VIEW T HAT THE ASSESSEE WAS HAVING A REASONABLE CAUSE FOR FILING APPEAL BELATEDLY. THE DELAY OF 7 DAYS IS CONDONED. APPEAL IS ADMITTED FOR ADJUDICATION. 4. GROUND NO.1 IS AGAINST LEGALITY OF NOTICE U/S 153C OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. IT WAS SUBMITTED THAT THE NOTICE ISSUED U/S 153C OF THE ACT IS INVALID AND VOID-AB-INITIO AS THERE IS NO CORRELATION DOCUMENT-WISE WITH THE RELEVANT ASSESSMENT. IN SUPPO RT OF THIS, THE ASSESSEE HAS PLACED RELIANCE ON THE DECISI ON OF THE HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 5 PRINCIPAL CIT(C)-2 VS. INDEX SECURITIES (P) LTD. 86 TAXMANN.COM 84 (DEL.) 5. PER CONTRA, LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. HE CONTENDED THAT PROCEEDINGS U/S 153C OF THE ACT HAS BE EN VALIDLY INITIATED. HE SUBMITTED THAT THE ASSESSING OFF ICER HAS DULY RECORDED THAT DURING THE COURSE OF SEARCH U/ S 132 OF THE ACT AT THE PREMISES OF M/S. FORTUNE BUILDERS AND M/S. FORTUNE SOUMYA HOUSING CERTAIN DOCUMENTS NUMBERED AS LPS-8 BELONGING TO THE ASSESSEE WERE FOUN D. HE SUBMITTED THAT THE ASSESSING OFFICER HAS FURTHER RECORDED THE SALE OF LAND ADMEASURING 3 ACRES TO M/S. FORTUNE SOUMYA HOUSING, BHOPAL FOR A SALE CONSIDERATION OF RS.61,00,000/-THIS TRANSACTION IS DULY ADMITTED. THEREFORE, HE SUBMITTED THAT THERE IS CLEAR CO-RELATIO N AND THE ASSESSEE HAS NOT BROUGHT ANYTHING ON RECORD TO REB UT THIS FINDING. IN REJOINDER LD. COUNSEL FOR THE ASSE SSEE IT IS [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 6 CONTENDED THAT THE INCOME FROM CAPITAL GAINS WAS ALREADY OFFERED IN RETURN FOR THE A.Y. 2012-13, ALTHOUGH THI S DOCUMENT HAS NO RELEVANCE TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THIS DOCUMENT CANNOT BE TREATED AS INCRIMINATING. 6. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORDS AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. THE ASSESSEE IN THIS CASE I S AGGRIEVED BY THE PROCEEDINGS INITIATED U/S 153C OF TH E ACT. THE CONTENTION OF THE ASSESSEE IS THAT THE PROCEEDING S HAVE NOT BEEN VALIDLY INITIATED. IT IS CONTENDED THAT THE SEIZED DOCUMENT DO NOT RELATE TO THE ASSESSMENT YEAR UNDER APPEAL, WHERE THERE IS NO CORRELATION BETWEEN THE DOCUMENTWISE WITH THE RELEVANT ASSESSMENT. THE NOTI CE SO ISSUED WOULD BE INVALID AND VOID-AB-INITIO. THE RELI ANCE IS PLACED ON THE JUDGEMENT OF THE HON'BLE DELHI HIGH CO URT IN THE CASE OF PCIT-2 VS. INDEX SECURITIES PVT. LTD. 86 [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 7 TAXMANN.COM 290. ANOTHER OBJECTION OF THE ASSESSEE T HAT THERE SHOULD BE TWO SATISFACTION NOTE ONE BY THE ASSES SING OFFICER OF THE SEARCHED PARTY AND ANOTHER BY THE ASSESS ING OFFICER OF THE ASSESSEE. IN SUPPORT OF THIS CONTENT ION, RELIANCE IS MADE ON THE JUDGEMENT OF JURISDICTIONAL HI GH COURT RENDERED IN THE CASE OF CIT VS. MACHMEN (2015) 60 TAXMAN.COM 484 (MP). LASTLY, IT IS STATED THAT TRANSACTI ON WAS DULY RECORDED AND ACCOUNTED. IT IS STATED THAT THE CAPITAL GAIN ARISING OUT OF SALE OF 3 ACRES OF LAND TO FUT URE SOUMYA HOUSING WAS ALREADY OFFERED FOR TAX IN THE ASSESSMENT YEAR 2012-13. IT IS ARGUED THAT NO RELIANCE CAN BE MADE ON THE DOCUMENT EXECUTED FOR TRANSFER OF LAND IN THE YEAR UNDER APPEAL. IT IS VEHEMENTLY ARGUED ON BEHAL F OF THE ASSESSEE THAT THE IMPUGNED ASSESSMENT ORDER BE QUASHED BEING ILLEGAL AND CONTRARY TO THE SETTLED LAW. I FIND THAT BEFORE THE LD. CIT ALSO THE ASSESSEE HAD CHALLENGED THE VALIDITY OF THE NOTICE ISSUED U/S 153C OF THE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 8 ACT AND THE PROCEEDINGS CONCLUDED. THE LD. CIT(A) H AS DECIDED THIS ISSUE RELATED TO VALIDITY OF NOTICE U/S 153C OF THE ACT AS UNDER: 7. GROUND NO.1 IS AGAINST ISSUE OF NOTICE U/S 153C . IT IS AN UNDISPUTED FACT THAT CERTAIN DOCUMENTS WERE SEIZED DURING THE COURSE OF SEARCH U/S 132 AT THE PREMISES OF M/S. FO RTUNE SOUMYA HOUSING, BHOPAL. THE APPELLANT IN HER STATEMENT RE CORDED U/S 131 ON 30.4.2013 HAD ADMITTED THAT SHE HAD SOLD THREE A CRE LAND TO M/S. FORTUNE SOUMYA HOUSING, BHOPAL ON 9.8.2011 FOR RS.61,00,000/-. FURTHER, NO OBJECTION TO THE ISSUE OF NOTICE U/S 153C WAS RAISED AT THE TIME OF RECEIPT OF THE NOTIC E. IN FACT ADMITTEDLY, THE APPELLANT FILED RETURN OF INCOME IN COMPLIANCE OF NOTICE U/S 153C. IN THE CIRCUMSTANCES, THE ISSUE O F NOTICE IS FOUND TO BE LEGALLY VALID. THE CASE LAWS RELIED UPON BY THE APPELLANT ARE DISTINGUISHABLE ON FACTS. THEREFORE, THIS GROUND O F APPEAL IS DISMISSED. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE LD. CIT(A) DID NOT ADVERT TO THE SUBMISSIONS OF THE ASSESSEE THAT THE PROCEEDINGS U/S 153C OF THE ACT CANNOT BE INITIATED I N THE PRESENT CASE SINCE THE DOCUMENT ON THE BASIS OF WHICH THE PROCEEDINGS ARE FOUNDED DOES NOT PERTAIN TO THE ASSESSMENT YEAR UNDER APPEAL. LD. CIT(A) DISMISSED THE GROUND MERELY ON THE BASIS THAT NO OBJECTION WAS RAISED AT THE TIME OF RECEIPT OF THE NOTICE AND THE INCOME TAX RETURN WAS FILED IN PURSUANCE OF THE NOTICE ISSUED U/S 153C OF THE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 9 ACT. IN MY CONSIDERED VIEW, LD. CIT(A) OUGHT TO HAV E DECIDED THE ISSUE IN ACCORDANCE WITH LAW IN VOGUE. ALL STATUTORY AUTHORITIES ARE DUTY BOUND TO ACT IN ACCORDANC E WITH LAW. THE INDIVIDUAL VIEW WHIMS OR FANCIES CANNOT REPLACE THE STATUTORY PROVISIONS. THE TAX PAYERS REP OSE FAITH IN THE STATUTORY AUTHORITIES THAT HIS CASE WOULD BE ADJUDICATED IN ACCORDANCE WITH LAW. 8. FOR THE SAKE OF CLARITY, SECTION 153C OF THE ACT IS REPRODUCED AS UNDER: 153C .(1) 96[NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR RE QUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINE D THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVIN G JURISDICTION OVER SUCH OTHER PERSON] AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFI CER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL IN COME OF SUCH OTHER PERSON 97[FOR SIX ASSESSMENT YEARS IMMEDIATELY PREC EDING THE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 10 ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND] FOR THE RELEV ANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SEC TION 153A : PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MA KING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SEC TION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON : PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES98 MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, S PECIFY THE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, I N WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NO TICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE 99[AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS AS REFERRED T O IN SUB-SECTION (1) OF SECTION 153A] EXCEPT IN CASES WHERE ANY ASSE SSMENT OR REASSESSMENT HAS ABATED. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS S EIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH O THER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MA DE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A. [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 11 9. A BARE READING OF THE ABOVE PROVISION WOULD MAKE IT CLEAR THAT THE ASSESSING OFFICER OF THE SEARCHED PART Y AS WELL AS THE ASSESSING OFFICER HAVING JURISDICTION OVER THE PERSON OTHER THAN THE SEARCHED PARTY WHOSE BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITION ED HAVE TO BE SATISFIED QUA THE MATERIAL SEIZED. THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MECH MEN (SUPRA) HAS HELD AS UNDER: 18. THE CONCOMITANT OF THIS CONCLUSION, IS THAT, TH E LEGAL POSITION AS APPLICABLE TO SECTION 158BD REGARDING SATISFACTION IN THE FIRST INSTANCE OF THE FIRST ASSESSING OFFICER FORWARDING THE ITEMS TO THEASSESSING OFFICE R HAVING JURISDICTION; AND IN THE SECOND INSTANCE OF THE ASSESSING OFFICER HAVING JURISDICTION WHILST SENDING NOTICE TO SUCH OTHER PERSON (OTHER THAN THE PERSON REFERRED TO IN SECTION 153A ), MUST APPLY PROPRIO VIGORE. THE FACT THAT INCIDENTAL LY THE ASSESSING OFFICER IS COMMON AT BOTH THE STAGES WOULD NOT EXTRICATE HIM F ROM RECORDING SATISFACTION AT THE RESPECTIVE STAGES. IN THAT, THE ASSESSING OFFIC ER IS SATISFIED THAT THE ITEMS REFERRED TO IN SECTION 153C BELONGS OR BELONG TO A PERSON (OTHER THAN THE PERS ON REFERRED TO IN SECTION 153A ), BEING SINE QUA NON. HE CANNOT ASSUME JURISDICTIO N TO TRANSMIT THOSE ITEMS TO ANOTHER FILE WHICH INCID ENTALLY IS PENDING BEFORE HIM CONCERNING OTHER PERSON (PERSON OTHER THAN THE PERS ON REFERRED TO IN SECTION 153A ). THE QUESTION AS TO WHETHER THAT MAY INFLUENCE TH E OPINION OF THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON, ALSO CANNOT BE THE BASIS TO TAKE ANY OTHER VIEW. AS A MATTER OF FACT, THE OTHER ASSESSING OFFICER TO WHOM THE ITEMS ARE HANDED OVER, BEFORE ISSUING NOTICE MUST H IMSELF BE SATISFIED AFTER DUE VERIFICATION OF THE ITEMS RECEIVED AND THE DISCLOSU RES MADE BY THE OTHER PERSON IN THE RETURNS FOR THE RELEVANT PERIOD ALREADY FILED B Y THE OTHER PERSON BEFORE HIM. FOR THE SAME REASON, WE MUST REJECT THE ARGUMENT OF THE DEPARTMENT THAT THE DISCRETION OF THE ASSESSING OFFICER HAVING JURISDIC TION WILL BE IMPAIRED IN ANY MANNER, IF HE WERE TO HOLD A DIFFERENT VIEW. SIMILA RLY, AS THERE IS NO PROVISION EITHER EXPRESS OR IMPLIED (IN THE ACT) TO DISPENSE WITH THE REQUIREMENT OF [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 12 SATISFACTION, IF THE ASSESSING OFFICER HAPPENS TO B E THE SAME, AS IN THIS CASE, THE ARGUMENT OF THE DEPARTMENT MUST BE NEGATIVED. 19. AFTER RECEIPT OF THE MATERIALS, THE ASSESSING O FFICER HAVING JURISDICTION IS EXPECTED TO CONDUCT ENQUIRY AND DUE VERIFICATION OF THE RELEVANT FACTS; BEFORE FORMING HIS PRIMA FACIE SATISFACTION. THE ASSESSING OFFICER HAVING JURISDICTION WILL BE WELL WITHIN HIS RIGHTS TO FORM AN INDEPENDE NT VIEW BEFORE ISSUING NOTICE TO THE OTHER PERSON (PERSON OTHER THAN THE PERSON REFE RRED TO IN SECTION 153A ) UNDER HIS JURISDICTION ON THE BASIS OF HIS OWN ENQUIRY. I N OUR OPINION, THE VIEW FORMED BY THE ASSESSING OFFICER AFTER HIS OWN ENQUIRY DOES NOT ENTAIL IN SEATING IN APPEAL OVER THE SATISFACTION OF THE FIRST ASSESSING OFFICE R, WHO HAD HANDED OVER THE ITEMS TO HIM. 20. AS A RESULT, WE HOLD THAT THERE IS NO INFIRMITY IN THE VIEW TAKEN BY THE TRIBUNAL ON THE QUESTIONS UNDER CONSIDERATION. THE VIEW TAKE N BY US IS REINFORCED FROM THE DECISIONS OF OTHER HIGH COURTS IN THE CASES OF COMM ISSIONER OF INCOME TAX (CENTRAL) VS. GOPI APARTMENT (SUPRA), PEPSI FOODS P . LTD. (SUPRA), PEPSICO INDIA HOLDINGS P. LTD. (SUPRA) AND LASTLY CIT VS. MADHI K ESHWANI (SUPRA). THE OBSERVATIONS OF THE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. (SUPRA) HAVE BEEN EXPLAINED IN THE SUBSEQUENT CASE OF PEPSI CO INDIA HOLDINGS P. LTD. (SUPRA). 10. THE REVENUE HAS NOT REBUTTED THE CONTENTION OF THE ASSESSEE THAT THERE IS NO VALID SATISFACTION AS CONTEMPLATED U/S 153C OF THE ACT. THE REVENUE HAS NO T BROUGHT ON RECORD THE SATISFACTION RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON AS WELL AS TH E ASSESSING OFFICER OF THE ASSESSEE. THEREFORE, RESPEC TFULLY FOLLOWING THE JUDGEMENT OF THE HON'BLE JURISDICTION AL HIGH COURT RENDERED IN THE CASE OF CIT VS. MECHMEN (SUPRA) , I HOLD THAT THE PROCEEDINGS U/S 153C OF THE ACT ARE NOT [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 13 VALIDLY INITIATED. NOW COMING TO THE ANOTHER OBJECTIO N OF THE ASSESSEE THAT THERE IS NO CORRELATION DOCUMENTWISE WITH THE RELEVANT ASSESSMENT YEAR. IN SUPPORT OF THIS CONTENTION, THE ASSESSEE HAS RELIED UPON THE JUDGEMEN T OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF PR. CIT (CENTRAL)-2 VS. INDEX SECURITIES (P) LTD. (2017) 86 TAXMANN.COM 84 (DELHI), WHEREIN THE HON'BLE HIGH COU RT HAS HELD AS UNDER: 31. AS REGARDS THE SECOND JURISDICTIONAL REQUIREME NT VIZ., THAT THE SEIZED DOCUMENTS MUST BE INCRIMINATING AND MUST REL ATE TO THE ASSESSMENT YEARS WHOSE ASSESSMENTS ARE SOUGHT TO BE REOPENED, THE DECISION OF THE SUPREME COURT IN SINHGAD TECHNI CAL EDUCATION SOCIETY (SUPRA) SETTLES THE ISSUE AND HOLDS THIS TO BE AN ESSENTIAL REQUIREMENT. THE DECISIONS OF THIS COURT IN RRJ SE CURITIES AND ARN INFRASTRUCTURE INDIA LTD. VS. ASST. CIT (2017) 394 ITR 569/8 TAXMANN.COM 260 (DELHI) ALSO HOLD THAT IN ORDER TO JUSTIFY THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF TH E ACT THE DOCUMENTS SEIZED MUST BE INCRIMINATING AND MUST REL ATE TO EACH OF THE ASSESSMENT YEARS WHOSE ASSESSMENTS ARE SOUGHT T O BE REOPENED. SINCE THE SATISFACTION NOTE FORMS THE BA SIS FOR INITIATING THE PROCEEDINGS UNDER SECTION 153C OF THE ACT, IT I S FUTILE FOR MR. MANCHANDA TO CONTEND THAT THIS REQUIREMENT NEED NOT BE MET FOR INITIATION OF THE PROCEEDINGS BUT ONLY DURING THE S UBSEQUENT ASSESSMENT. 32. IN THE PRESENT CASE, THE TWO SEIZED DOCUMENTS R EFERRED TO IN THE SATISFACTION NOTE IN THE CASE OF EACH ASSESSEE ARE THE TRIAL BALANCE AND BALANCE SHEET FOR A PERIOD OF FIVE MONT HS IN 2010. IN THE FIRST PLACE, THEY DO NOT RELATE TO THE ASSESSME NT YEARS FOR WHICH THE ASSESSMENTS WERE REOPENED IN THE CASE OF BOTH A SSESSEES. SECONDLY, THEY CANNOT BE SAID TO BE INCRIMINATING. EVEN FOR THE A.Y TO WHICH THEY RELATED, I.E. AY 2011-12, THE A.O. FI NALISED THE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 14 ASSESSMENT AT THE RETURNED INCOME QUA EACH ASSESSEE WITHOUT MAKING ANY ADDITIONS ON THE BASIS OF THOSE DOCUMENT S. CONSEQUENTLY EVEN THE SECOND ESSENTIAL REQUIREMENT FOR ASSUMPTION OF JURISDICTION UNDER SECTION 153C OF THE ACT WAS N OT MET IN THE CASE OF THE TWO ASSESSEES. 11. IN THE PRESENT CASE, SEARCH WAS CARRIED OUT AT THE THIRD PARTYS PREMISES WHERE FROM THE DOCUMENT RELATE D TO SALE BY THE ASSESSEE WERE RECOVERED BUT THE A.O. HAS M ADE ADDITION IN RESPECT OF THE LAND PURCHASED BY THE ASSESS EE. ADMITTEDLY, THE DOCUMENT RELATED TO PURCHASE OF LAND MADE BY THE ASSESSEE WAS NOT RECOVERED. THEREFORE, THE DOCUMENT OF SALE CANNOT BE RELATED TO THE YEAR OF PURC HASE. IN THE LIGHT OF JUDGEMENT OF THE HON'BLE DELHI HIGH COURT AS RELIED BY THE ASSESSEE IN THE CASE OF PR. CIT (CENTRAL )-2 VS. INDEX SECURITIES (P) LTD. (SUPRA), THE PROCEEDINGS U /S 153C OF THE ACT ARE NOT IN ACCORDANCE WITH LAW. 12. ANOTHER OBJECTION OF THE ASSESS IS THAT THE INCO ME FROM CAPITAL GAIN FROM SALE OF 3 ACRES OF LAND TO FORTU NE SOUMYA HOUSING WAS ALREADY OFFERED IN THE INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2012-13, HENCE, THE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 15 DOCUMENT CANNOT EVEN BE TREATED AS INCRIMINATING. THI S FACT IS NOT CONTROVERTED BY THE REVENUE, HENCE WE FI ND FORCE IN TO THE CONTENTION OF THE LD. COUNSEL FOR THE ASSE SSEE. THUS, THIS DOCUMENT SEIZED AT THE PREMISES OF THE TH IRD PARTY CANNOT BE TREATED AS INCRIMINATING. HENCE, LOOK ING TO THE TOTALITY OF THE FACTS, I HOLD THAT THE PROCEEDINGS INITIATED U/S 153C OF THE ACT AND ASSESSMENT ORDER PASSED ARE NOT IN CONFORMITY OF LAW AND THE SAME IS HEREBY QUASHED. GROUND NO.1 OF THE ASSESSEES APPEAL IS ALLOWED. 13. GROUND NO.2 IS AGAINST SUSTAINING THE ADDITION OF RS.4,08,131/- TREATING THE SAME AS UNEXPLAINED INVESTMENT. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT CASH FLOW STATEMENT AS WELL AS BALANCE SHEET WAS SUBMITTED BEFORE THE LD. CIT(A). IN SUPPORT OF THIS, HE DREW MY ATTE NTION TO PAPER BOOK PAGE NOS.11 TO 13 TO BUTTRESS THE CONTEN TION [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 16 THAT THE SOURCE OF INVESTMENT IS DULY EXPLAINED. HE SUBMITTED THAT AS PER THE CASH BOOK, THE OPENING BALANCE WAS RS.4,36,261/- AS ON 1.4.2009. THE LD. COUNSEL FO R THE ASSESSEE HAS ALSO TAKEN ME THROUGH COMPUTATION OF TOTAL INCOME PERTAINING TO THE ASSESSMENT YEAR 2010-11, WHEREIN THE ASSESSEE HAS DISCLOSED INCOME FROM HOUSE PROPERTY, INCOME FROM BUSINESS OR PROFESSION, CAPIT AL GAIN AND OTHER SOURCES. 14. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 15. I HAVE HEARD THE RIVAL CONTENTIONS. WE FIND FRO M THE REPLY FURNISHED TO THE A.O. ENCLOSED AT PAPER BOO K PAGES 16 TO 19 THAT ASSESSEE HAD PURCHASED PROPERTIES IN THE YEARS 2002 & 2006 EVEN PRIOR TO THE PURCHASE OF THE PROPERTIES IN QUESTION AT A HIGHER CONSIDERATION. THE A.O. HAS NOT DISBELIEVED THIS INVESTMENTS AND SOURCE OF INVESTMENT BY THE ASSESSEE. IT IS ALSO FACT THAT THE AS SESSEE [ITA 735/IND/2018] [SMT. SADHNA VOHRA, BHOPAL] 17 ALSO PURCHASED PROPERTIES SUBSEQUENT TO PURCHASE OF THE AGRICULTURAL LAND IN QUESTION. THEREFORE, THE CASH BO OK AS SUBMITTED BY THE ASSESSEE COULD NOT HAVE BEEN DISBELI EVED AND IT CAN BE INFERRED FROM THE SAME THAT THE ASSESSEE W AS HAVING SUFFICIENT SOURCE OF INCOME TO MAKE INVESTMEN T. HENCE, THE ASSESSEE SUCCEEDS ON THIS GROUND AS WELL. 16. GROUND NO.3 IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDICATION. 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 8.07.2019. SD/- (KUL BHARAT) JUDICIALMEMBER INDORE; DATED : 18/07/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE