Genera Agri Corporation Limited, Hyderabad, Hyderabad V. DCIT, Central Circle-1(3), Hyderabad, Hyderabad

ITA 883/Hyd/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0718 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 03-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Additional evidence; Documents seized
• Section: 132; 143(3); 153A; 158BC; 13; 158BD; 153C

Judgement Text

ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 1 of 16 आयकर अपीलȣय अͬधकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri R.K. Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member ITA No. 881 to 887/Hyd/2017 Assessment Years: 2007-08 to 2013-14 Genera Agri Corp. Ltd Hyderabad PAN:AADCG6564B Vs. Dy. C.I.T Central Circle 1(3) Hyderabad (Appellant) (Respondent) Assessee by : Shri A.V. Raghuram, Advocate Revenue by: Shri P. Chandrasekhar, DR Date of hearing: 04/10/2022 Date of pronouncement: 17/10/2022 ORDER Per Bench. These seven appeals are filed by the assessee against the order of the learned CIT (A)-11, Hyderabad dated 29.10.2016. Since identical issues are involved in all these appeals, these were heard together and are being disposed of by this common order. 2. In the main appeal in ITA No.881/Hyd/2017, the assessee has raised the following grounds of appeal: “1. The order of the learned CIT(Appeals) is not only erroneous both on facts and in law but is contrary to the principles laid down by the Court in the case of Supreme Andaman Timber. 2. The learned CIT(Appeals) erred in confirming the validity of u/s.153C in proceedings spite of the fact that the additions are not based on any incriminating material but only based on enquiries conducted on the entries in the books of account regularly maintained merely by reference ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 2 of 16 to statement recorded u/s. 132(4) which by no stretch of imagination could be held to be any incriminating material. 3. The learned CIT(A) erred in confirming the addition of Rs.36,02,098 made as income from other sources claimed as agricultural income though made based on statements collected behind the back of the assessee and no opportunity to cross examination is allowed. 4 The learned CIT(A) erred in confirming the action of the AO in treating entire cash deposits into bank as unexplained and thereby erred in confirming the action of AO in making addition of Rs.1,08,77,048 without appreciating the submissions that the AO has not considered the withdrawals made which were available for redeposit particularly when the book entries are not being relied. 5. The learned CIT(A) failed to appreciate the fact that the assessee is a listed . company and further that the authorities during the course of search has not found any material suggesting that the directors are involved in day to day activity and are not found benefited in any manner from the funds of the company and thereby erred in confirming the addition holding that the agricultural income is bogus and cash deposits are unexplained 6. Any other ground that may be urged at the time of hearing”. 3. At the time of hearing, the learned AR submitted that the assessee has filed a petition for admission of the additional grounds of appeal which read as under: “1. The Appellant has filed appeal before the Hon'ble Tribunal by raising grounds of appeal on the legal issues under the provisions of section 153C of the 1.T. Act, 1961 (henceforth However, the Act') and also on merits. appellant desires to raise specific ground with regard to recording of satisfaction by the Assessing Officer before issuance or notice under section 153C of the Act. Since it is not raised specifically before the authorities below, the same is raised as additional ground before the Hon'ble Tribunal. 2. It is settled position of law by virtue of judgement of jurisdictional high court and that of the Hon'ble Tribunal and so also the circular issued by CBDT that the AO has to record satisfaction on the material before 1ssuing notice under section 153C of the Act, and if such satisfaction is not recorded, the proceedings initiated under section 153C of the Act would be illegal and non est. 3. The Appellant with the leave of the Hon'ble Tribunal desires to raise the following additional grounds in the above appeal in respect of the above legal issues: ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 3 of 16 ADDITIONAL GROUND 1. On the facts and circumstances of the case, the assessment order dated 31.03.2015 passed under section 143(3) r.w.s. 153C of the Act is unsustainable on facts and in law in the absence of jurisdiction under section 153C of the Act". recording of satisfaction before assuming 2. On the facts and in the circumstances of the case, the AO ought not to have assumed jurisdiction to make an assessment under section 153C of the Act in the absence of incriminating material. It is submitted that the additional grounds raised are legal in nature and would go to the root of the appeal. It is further submitted that there is no fresh investigation of facts for adjudicating the additional grounds. In the interest of justice, the additional ground may kindly be admitted. In the aforesaid circumstances, it is prayed that the Hon'ble Tribunal may be pleased to admit the additional ground and the same may be adjudicated on merits and pass such other order(s) as the Hon'ble Tribunal deems fit and proper in the interest of justice”. 4. The learned AR submitted that the ground raised by the assessee are legal in nature and have not been raised specifically before the learned CIT (A). However, it was submitted that the reasons for raising the additional grounds are duly mentioned in the petition for admission of the additional grounds which read as under: 5. The learned AR further submitted that the assessee although filed for application for admission of the additional evidences which are nothing but the record of the proceedings which have taken place before the Special Judge, Economic Offences (Cross Examination) of the officials of the Revenue namely Shri Vijay Kumar and Rama Subramaniam) working as Assessing Officer at that relevant point of time and also copy of the warrant of the authorization and the application moved by the assessee for seeking the record of satisfaction u/s 153C of the Act. It was submitted that the admission of the additional ground ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 4 of 16 and also the admission of the additional evidences are very essential for just due adjudication of the present set of appeals. 6. The learned AR also submitted that the Assessing Officer in the present case had framed the assessment u/s 153C pursuant to the search initiated in the hands of the individuals namely Mr. M. Rajesh Naidu and Mrs. Kalpana Raj on 16.11.2012. For the above purposes, he has drawn the attention of the Bench to the assessment order and more particularly Paragraph 1 & 2 of the said assessment order for the A.Y 2007-08 which is to the following effect. It was submitted that as it is clear from the assessment order, the assessment was framed in the hands of the assessee u/s 153C, therefore, it was the contention of the learned AR that the recording of satisfaction by the Assessing Officer of the assessee was essential before initiating proceedings u/s 153C of the Act. Besides it was submitted that the assessee after suffering the assessment order challenged the order passed by the Assessing Officer before the CIT (A) and before the learned CIT (A), raised ground No.2 which is to the following effect: “2. The Assessing Officer erred in initiating proceedings u/s 153C though the authorities has not found any incriminating material during the course of search and the assessment is not made based on any seized material”. 7. The learned AR submitted that the assessee had filed detailed elaborate written submission before the learned CIT(A) and he has drawn the attention of the Bench to page No.11 of the order passed by the learned CIT (A) wherein it was categorically submitted by the assessee before the learned CIT (A) as under: ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 5 of 16 “VALIDITY OF PROCEEDINGS U/S153-C: The AO has completed the assessment under the provisions of Sec.153-C by issue of notice u/s. 153 C though a search operation is conducted at the business premises of the appellant. Initiating proceedings u/s.153 C requires recording of satisfaction based on incriminating material and apparently in the appellant's case there is no incriminating material and hence there could not have been a valid satisfaction. Be that as it may, the appellant submit that whether it be u/s. 15.3 C or u/s. 153A n0 addition could be made without support of incriminating material. The text of the assessment order would demonstrate that the authorities has not found any material to suggest that there was no Agricultural income nor that the deposits were made out of undisclosed income. It is all based on the enquiries they conducted subsequently to demonstrate that the agricultural income is inflated and on the basis of statement given Under coercion. Therefore the assessment that is not based on incriminating material particularly u/s. 753C is invalid. The appellant in this regard invite kind attention to the Circular of the CBDT No 24/2015, dated 31.12.2015 where the CBDT has accepted the decision of the Supreme Court which is to the effect that without recording of satisfaction, no assessment u/s 153C could be made. As submitted earlier, the Assessing Officer issued notice u/s 153C and completed the assessment u/s 153C. The appellant therefore, submit that the assessment that is made u/s 153C is void ab initio”. 8. The learned AR submitted that the warrants of authorization are issued in the name of the individuals which is clear from Page 28 of the Paper Book as the same was issued in the name of the two Directors namely Mr. Rajesh Naidu and Mrs. Kalpana Raj Muniratnam. It was also submitted that once letter of authorization was issued under the name of the two persons and there is no satisfaction recorded in the name of the assessee, in the case file of the searched persons, no addition can be made u/s 153C of the Act and he has drawn our attention to section 153C which reads as under: “Amendment of section 153C. 55. In section 153C of the Income-tax Act, in sub-section (1), for the words, figures and letter "and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A", occurring at the end but before the first proviso, the words, brackets, figures and letter "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 accordance with the provisions of ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 6 of 16 section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for the relevant assessment year or years referred to in sub- section (1) of section 153A" shall be substituted with effect from the 1st day of October, 2014.” 9. The learned AR also relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner Of Income Tax vs M/S. Calcutta Knitwears reported in (2014) (6SCC 444) and in the case of Super Malls Pvt Ltd v. PCIT( 2020) 423 ITR 281. He has drawn our attention to para 6 and 6.1 of the judgment of the Hon'ble Supreme Court in the case of Super Malls (P) Ltd vs. PCIT which read as under: “6. This Court had an occasion to consider the scheme of Section 153C of the Act and the conditions precedent to be fulfilled/complied with before issuing notice under Section 153C of the Act in the case of Calcutta Knitwears (supra) as well as by the Delhi High Court in the case of Pepsi Food Pvt. Ltd. (supra). As held, before issuing notice under Section 153C of the Act, the Assessing Officer of the searched person must be “satisfied” that, inter alia, any document seized or requisitioned “belongs to” a person other than the searched person. That thereafter, after recording such satisfaction by the Assessing Officer of the searched person, he may transmit the records/documents/things/papers etc. to the Assessing Officer having jurisdiction over such other person. After receipt of the aforesaid satisfaction and upon examination of such other documents relating to such other person, the jurisdictional Assessing Officer may proceed to issue a notice for the purpose of completion of the assessment under Section 158BD of the Act and the other provisions of Chapter XIV-B shall apply. 6.1 It cannot be disputed that the aforesaid requirements are held to be mandatorily complied with. There can be two eventualities. It may so happen that the Assessing Officer of the searched person is different from the Assessing Officer of the other person and in the second eventuality, the Assessing Officer of the searched person and the other person is the same. Where the Assessing Officer of the searched person is different from the Assessing Officer of the other person, there shall be a satisfaction note by the Assessing Officer of the searched person and as observed hereinabove that thereafter the Assessing Officer of the searched person is required to transmit ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 7 of 16 the documents so seized to the Assessing Officer of the other person. The Assessing Officer of the searched person simultaneously while transmitting the documents shall forward his satisfaction note to the Assessing Officer of the other person and is also required to make a note in the file of a searched person that he has done so. However, as rightly observed and held by the Delhi High Court in the case of Ganpati Fincap (supra), the same is for the administrative convenience and the failure by the Assessing Officer of the searched person, after preparing and dispatching the satisfaction note and the documents to the Assessing Officer of the other person, to make a note in the file of a searched person, will not vitiate the entire proceedings under Section 153C of the Act against the other person. At the same time, the satisfaction note by the Assessing Officer of the searched person that the documents etc. so seized during the search and seizure from the searched person belonged to the other person and transmitting such material to the Assessing Officer of the other person is mandatory. However, in the case where the Assessing Officer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. However, as observed hereinabove, he must be conscious and satisfied that the documents seized/recovered from the searched person belonged to the other person. In such a situation, the satisfaction note would be qua the other person. The second requirement of transmitting the documents so seized from the searched person would not be there as he himself will be the Assessing Officer of the searched person and the other person and therefore there is no question of transmitting such seized documents to himself.” 10. The learned AR further submitted that no addition can be sustained by this Tribunal as the mandatory provisions of section 153C have not been applied by the Assessing Officer. In the alternate it was also submitted that if for any reason, the Tribunal does not agree with the contention of the learned AR, then it was submitted that in the present case even no ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 8 of 16 assessment can be made in the hands of the assessee u/s 153A of the Act as the search has taken place in the premises of the searched persons on 16.11.2012 and the last date of authorization was 31.3.2013 and the assessment order under consideration was passed on 31.3.2015 u/s 153C of the Act. As per the contention of the learned AR, the order, in any case, u/s 153A was required to be passed within a period of 21 months from the last date of the financial year in which the search has taken place and therefore, the order passed by the Assessing Officer, though passed u/s 153C was highly time barred. 11. The learned AR also submitted that the grounds raised in all the appeals before the Tribunal and are identical and therefore, the appeal for the A.Y 2007-08 may be taken as a lead appeal and the submission made by the assessee before the lower authorities on quantum may kindly be considered with respect to the determination of the issue on merit are concerned and he has not made any submission in support of the grounds raised on merit. 12. The learned DR, on the other hand, vehemently argued the mater and he relied upon the written submission filed by the earlier DR and also the judgment relied upon in support of the case of the Revenue. The learned DR had made the following submission before the Bench: 12.1) That the present case before the Tribunal is a special case which does not strictly fall either u/s 153A or 153C of the Act. It was submitted that the authorization was only issued in favour of the two Directors namely Mr. Rajesh Naidu and Mrs. Kalpana Raj Muniratnam and further the search was carried at ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 9 of 16 the residential premises of these two Directors and the business premises of the assessee namely Genera Agri Corporation Ltd. It was submitted by the learned DR that once during the course of search carried out at the business premises of the assessee of which the searched persons were the Directors then there was no necessity to issue notices u/s 153A and the Revenue was right in initiating proceedings u/s 153C of the Act. Further, it was submitted that the panchnama was only prepared in the name of M/s. Genera Agr.Corp. and no panchnama was prepared against the two Directors. Besides that it was submitted that under the scheme of the Act, it is not necessary to have the authorization against the company and search was carried out at the premises of the Directors and no material pertaining to the company(assessee) were found and the necessary corollary to frame assessment u/s 153C of the Act. The Bench had specifically asked as to whether any satisfaction were recorded by the Assessing Officer of the searched persons of any material pertaining to the assessee or not, it was submitted that from the available record, there is no such material, however, time may be granted for filing the requisite information along with one-page written note to show that the assessment was originally framed u/s 153C of the Act after due recording of the satisfaction. 13. On the admissibility of the additional ground, it was submitted that the assessee cannot be permitted to raise the additional ground as no such ground was raised before the lower authorities. Similarly, it was submitted that the additional evidences placed on record could not be considered by the Bench as these documents were not available with the lower authorities. 14. The learned DR had also filled the written submissions to the following effect:- ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 10 of 16 “4.0 Coming to the first contention that the AO could have made assessment u/s. 153A, rather than u/s. 153C, it is submitted that, as per sec. 153A, the AO is authorized to proceed against the person where the search is initiated u/s. 132. Accordingly, the person covered u/s. 153A shall be identified on the basis of the person in whose case search is initiated u/s. 132. As per sec. 132, the D1T(Inv.) is empowered to issue warrant of authorization against a person, directing the Authorized Officers to enter and search any building, place, vessel, etc., wherein the books of account, valuables, etc., belonging to such person are kept. As such, conducting search operation in the premises of a person cannot be equated with issuing a warrant against a person. 5.0 For instance, warrant can be issued in the name of a person X (individual) directing to search the residential premises of X i.e., premises 'A' as well as the business premises of B company (Y) wherein X is a director i.e., premises 93', in order to find out books of account, valuables, etc., belonging to X lying in premises 'W. Thus, the provisions of sec. 153A would cover only such person (X) against whom warrant of authorization is issued to conduct search and seizure operation in various places (premises A and B). On the other hand, the very object of sec. 153C is to give jurisdiction to the AO to proceed against any person other than the person against whom a warrant of authorization is issued (Y). Thus, on a conjoint reading of sec. 132 and 153A, it is absolutely clear that issue of warrant of authorization against a person u/s 132 is sine qua non for assumption of jurisdiction u/s 153A against such person. 6.0 Coming to the case on hand, as seen from two warrants of authorization issued in Form No. 45 dated 15.11.2012, the Authorized Officers were directed to initiate action u/s. 132 against Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam, being the directors of the assessee company, in two different premises or locations, in order to find out books of account, valuables, etc., belonging to the directors. While doing so, the first warrant of authorization was issued to cover the residential premises of Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam i.e., Plot No. 267, MLA/MP Colony, CRPF Southern Gate, Road No. 10, Jubilee Hills, Hyderabad, and the second warrant of authorization was issued to cover the business premises of the assessee company M/s. Genera Agri Corporation Limited i.e., H. No. 8-2-293, Block 3, Sree Sai Rekha Nalayam, Road No. 82, Plot No. 383, Film Nagar, Jubilee Hills, Hyderabad 7.0 As such, the main purpose of issuing both the warrants of authorization was to find out evidence relating to the directors i.e., Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam. However, while conducting search operation in the business premises of the assessee company, the Authorized Officer found evidence relating to the assessee company itself as clearly recorded in the panchanama dated 17.11.2012. Accordingly, since the warrant u/s. 132 was not issued against the assessee company, prima facie, the case of the assessee does not fall under u/s. 153A. In view of this, on the basis of evidence seized from the business premises of the assessee company, the AO initiated proceedings u/s. 153C, rather than ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 11 of 16 u/s. 153A. As such, merely because it was directed in the warrant issued against Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam, to conduct search operation in the business premises of the assessee company, ipso facto, it cannot be construed that the case of the assessee company would come under sec. 153A. Only such persons against whom the warrant of authorization is issued should come under the purview of sec. 153A, has been ratified by the Hon'ble Supreme Court in the case of Tapan Kumar Dutta Vs. CIT (2018) 92 taxmann.com 367 (SC). Accordingly in the instant case, the AO has rightly issued notice u/s. 153C. Thus, it is humbly requested that the additional grounds of appeal and corresponding additional evidence filed by the assessee shall not be admitted at this stage. 8.0 Coming to the second contention of the assessee regarding recording of satisfaction note by the AO u/s 153C, it is humbly submitted that the incumbent AO reported that the copy of satisfaction note is not placed in the Miscellaneous Records (MRs) of the assessee company available in the office of the AO i.e., [TO, Ward-2(1), Hyderabad. Also, it is stated by the AO that the case was originally assessed to tax with ITO, Ward-2(2), Hyderabad and consequent to action u/s 132 mounted against the directors of the assessee company and seizure of incriminating material from the business premises of the assessee company, the case was centralized with DCIT, Central Circle-5, Hyderabad (since merged with DCIT, Central Circle- 2(3), Hyderabad). Later, the case was transferred to DCIT, Central Circle-1(3) Hyderabad. However, after passing the impugned assessment orders u/s. 143(3) rws 153C, the case was transferred/decentralized to ITO, Ward-2(2) [since merged with the incumbent AO i.e., ITO, Ward-2(1),Hyderabad], alongwith the MRs maintained in the office of DCIT, Central Circle, 1(3) Hyderabad. Further, it is reported that the MRs maintained in the office of the erstwhile ITO,Ward- 2(2), DCIT, Central circle-2(3) and DCIT, Central Circle-5 have not been transferred to the present AO. In view of this, the AO is not in a position to verify such MRs so as to certify whether any satisfaction note was recorded by the AO prior to issue of notice u/s 153C or not. A copy of letter dated 06- 10¬2022 received from the incumbent AO is enclosed herewith for kind reference of the Bench. 9.0 Notwithstanding the aforementioned factual-matrix of the case, it is respectfully submitted that, in the given set of facts and circumstances, there is no requirement of recording of any satisfaction note either by the AO of persons searched u/s. 132 and covered u/s. 153A i.e., Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam or the AO of the assessee company covered u/s. 153C on account of two grounds given below: i. The AO of the persons covered u/s. 153A i.e., Sri Muniratnam Rajesh Naidu and Smt. Kalpana Raj Muniratnam, being the directors of the company, and the AO of the assessee company is one and the same i.e., DCIT, Central Circle-1(3), Hyderabad. ii. The AO of the assessee company, as in the case of the persons covered u/s. 153A, had directly received the seized material relating to the assessee company found and seized from its business premises as recorded ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 12 of 16 in the panchanama dated 16.11.2012, from the Investigation Wing or the Authorized Officer, as the case may be. 10.0 As such, in the instant case, I am of the humble opinion that there is no requirement of recording of satisfaction by the AO of the searched person, which is applicable in a case of transmission of seized material to the AO of the person other than the searched person in whose premises no search operation was conducted. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Super Malls Pvt. Ltd. Vs. PCIT (2020) 423 ITR 281 (SC). Also, reliance is placed on the decision of Hon'ble Kerala High Court in CIT Vs. Dr. T.M. Kuriachan [2013132 taxmann.com 165 (Kerala), wherein it is held that where the assessments of both the assessees, one u/s. 158BC and other u/s. 158BD were completed by the same AO, recording of satisfaction by the AO about undisclosed income to be assessed at hands of other assessee u/s. 158BD was not necessary. A similar proposition of law was expounded by the Hon'ble Allahabad High Court in TVS Securities & Finance (P.) Ltd. Vs. CIT [20141 42 taxmann.com 441 (Allahabad). 11.0 Similarly, I am of the humble opinion that, in view of peculiar set of facts and circumstances of the case, there is no requirement of recording of satisfaction by the AO of the assessee company before issuing notice u/s. 153C, since the seized material relating to the assessee company was found and seized from its own business premises, rather than from any third party premises. As such, it is not a case of seizure of books of account, valuables, etc., relating to any other person during the course of search operation conducted in the premises of a third party. Further, the incriminating nature of material seized from the business premises of the assessee company was vindicated by huge amount of undisclosed income brought to tax in the assessment orders u/s. 143(3) rws 153C, which was confirmed by the Ld. CIT(Appeals). 12.0 Accordingly, it is respectfully submitted that the reliance placed by the assessee on the decision of the Hon'ble jurisdictional High Court in the case of CIT Vs. Shettys Pharmaceuticals & Biologicals Ltd. and the Hon'ble jurisdictional ITAT in the case of T. Nanda Kishore Vs. DCIT, apart from others (vide assessee's paper book dated 11-03-2022), are distinguishable on specific fact-situation of the instant case, and, therefore, is of no help to the assessee. 13.0 Alternatively, it is submitted that non-recording of reasons by the AO of the assessee company could not be said to be fatal for initiating proceedings u/s. 153C inasmuch as, admittedly, no objection was raised by the assessee before the AO and, in fact, filed the return of income in response to notice issued u/s. 153C and, thereafter, participated in the assessment proceeding by way of filing reply to various queries raised by the AO on merits of the case, but no question of jurisdiction on account of non- recording of reasons by the AO for initiating u/s. 153C was raised before the AO. Similarly, the assessee did not raise the said ground before the Ld. CIT(Appeals), but, for the first time, such objection was raised before the ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 13 of 16 Hon'ble ITAT, that too, in the form of additional grounds of appeal. In this regard, reliance is placed on the decision of the Hon'ble Madras High Court in the case of Smt. V. Vijayalakshmi Vs. DCIT [20191107 taxmann.com 450 (Madras). Thus, it is humbly requested that the second set of additional grounds of appeal raised by the assessee shall also be rejected as not maintainable in the eyes of the law and prayed to confirm the order of the Ld. CIT(Appeals) on merits of the case.” 15. In rebuttal, the learned AR submitted that during the cross examination of the witnesses, it was found that no satisfaction was recorded by the Assessing Officer at the time of issuance of the notice u/s 153C and further it was also the contention of the assessee that the above said fact came to the notice of the assessee only during the course of cross examination of the witnesses. He drew the attention of the Bench to the cross examination carried out on behalf of the assessee in the Court of the Special Judge, Economic Offences. He had also submitted that efforts were made to obtain copy of the satisfaction by writing letters to the Department, however, the assessee was not able to lay on the record of the assessee to show that there is no recording of satisfaction. 16. We have heard the rival contentions of the parties and perused the material available on record. The Revenue had submitted before us that the provision of sec 153A cannot be invoked in the present case as the warrant of authorization had not been issued against the assessee before us. In view of the above, we find the contention of the ld.AR that the right recourse was to exercise power u/s 153A is not sustainable. The decision of the Hon’ble Supreme Court in the case of Tapan Kumar Datta (Supra) is applicable to the facts of the case. ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 14 of 16 17. Having held that the proceeding u/s 153A cannot be invoked in the present case, now we have to examine whether the Assessing Officer was correct in invoking the provisions of sec 153C or not. As mentioned herein above, the recording of satisfaction by the Assessing Officer of the searched person or of the other persons (Assessee) is essential in view of the specific mandate provided u/s 153C of the Act. In fact, the Hon’ble Supreme Court has decided the issue in the case of Super Mall (P) Ltd 423 ITR 281 has held that if the Assessing Officer of the searched person and of the other person is same, then recording of satisfaction in the file of one of the persons will not make any difference. The relevant paragraph of the above said judgement had already been reproduced elsewhere. 18. Admittedly, the Tribunal had directed the Revenue to file the copy of the satisfaction note, if any, available in the case record of the assessee to show that the assessment proceedings u/s 153C were initiated after due recording of the satisfaction. On the last date of hearing i.e. on 4.10.2022 the Tribunal had again reiterated its earlier direction. The ld.DR DR for the Revenue had filed the written submission along with the letter of the Assessing Officer dated 6.10.2022, stating therein as under: 2. In continuation to this office letter dated 16.02.2022, 08.07.2022 ft this office email communication dated 29/09/2022, I would like to submit the following facts for your kind perusal and necessary action: (i) In regard to the satisfaction note recorded by the assessing officer prior to issue of notice u/s. 153C of the IT Act, 1961, it is submitted that copy of such satisfaction note is not placed in the miscellaneous records of the assessee company available in this office i.e. ITO, Ward-2(1), Hyderabad. Also it is submitted that the case was originally assessed to tax with ITO, Ward-2(2), Hyderabad and pursuant to the action u/s. 132 of the IT Act mounted against the Directors of the assessee company and the seizure of incriminating material from the business premises of the assessee company, the case was centralized with DCIT, Central Circle-5, Hyderabad which thereafter was merged with DCIT, Central Circle-2(3) Hyderabad. Later the ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 15 of 16 case was transferred to DCIT, Central Circle-1(3), Hyderabad. Thereafter, after passing the search related assessment orders, the case was decentralised to ITO, Ward-2(2), Hyderabad [the Ward-2(2), Hyderabad since merged with ITO, Ward-2(1), Hyderabad]. Subsequently, the miscellaneous records held by DOT, Central Circle-1(3), Hyderabad were transferred to erstwhile Ward-2(2), Hyderabad vide letter dated 26.06.2019. (i) In this regard, it may kindly be noted that, after the decentralization of the case to the erstwhile ITO, Ward-2(2), Hyderabad, the miscellaneous records maintained in the office of the, DCIT, Central Circle-5, Hyderabad and the DCIT, Central Circle-2(3), Hyderabad have not been transferred to Erstwhile Ward-2(2), Hyderabad. Therefore, the same were also not transferred to the present AO i.e. ITO, Ward-2(1), Hyderabad [only ward remained in the Range-2, Hyderabad after restructuring, in the year 2020]. In view of this, I am not in a position to verify such miscellaneous records so as to certify whether any satisfaction note was recorded by the AO prior to issue of notice u/s. 153C of the IT Act. 19. From the perusal of the above letter it is crystal clear that the revenue is not in a position to trace the satisfaction note as of now as the record is not traceable and may be available with the office(s) of the Revenue. In the light of the above, we hold as under: 1) The additional ground raised by the assessee is admitted. 2) The matter is remanded back to the file of the learned CIT (A) with a direction to decide the additional ground after collecting the documents/record from the offices of the Assessing Officer/Investigation/Central Circle in accordance with law after affording opportunity of being heard to the assessee. 20. In view of the aforementioned direction, the appeals for the A.Y 2007-08 to 2012-13 are allowed for statistical purposes. 21. With respect to the Assessment Year 2013-14, the ld.AR for the assessee had submitted that the assessee is having no case on merit. In view of the above the ld.DR for the Revenue had ITA Nos 881 to 887 of 2017 Genera Agri Corp Ltd Hyderabad Page 16 of 16 submitted that the order passed by the lower authorities for the Assessment Year 2013-14 is required to be upheld. We accordingly upheld the order passed by the ld. CIT (A) and dismiss the appeal of the assessee. 22. In the result, appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the Open Court on 17 th October, 2022. Sd/- Sd/- (R.K. PANDA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 17 th October, 2022. Vinodan/sps Copy to: S.No Addresses 1 M/s. Genera Agri Corp. Ltd C/o K. Vasantkumar, AV Raghuram, P. Vinod & M. Neelima Devi, Advocates, 610 Babukhan Estate, Basheerbagh, Hyderabad-1 2 Dy. CIT, Central Circle 1(3) Aayakar Bhavan, Basheerbagh, Hyderabad 3 CIT (A)-11,Hyderabad 4 Pr. CIT- Central, Hyderabad 5 DR, ITAT Hyderabad Benches 6 Guard File By Order