Bharati Vidyapeeth, Pune V. Asstt.CIT, Pune

ITA 917/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49739 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 17-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Invalid notice; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Charitable institution; Difference of opinion; Documents seized; Change of opinion; Capital expenditure
• Section: 40A(3); 143(3); 153A; 132; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER S. NO ITA NO ASSTT.YEAR 1. 917/PN/2010 2000-01 2. 918/PN/2010 2001-02 3. 919/PN/2010 2002-03 4. 920/PN/2010 2003-04 5. 921/PN/2010 2004-05 6. 922/PN/2010 2005-06 BHARATI VIDYAPEETH, .. APPELLANT BHARATI VIDYAPEETH BHAWAN, LAL BAHADUR SHASTRI ROD, NAVI PETH, PUNE 411 030 .. PAN AAATB 1836D VS. ASSTT. COMMISSIONER OF INCOME-TAX .. RESPONDE NT CEN. CIR. 2(2), PUNE AND S. NO ITA NO ASSTT.YEAR 1. 1028/PN/2010 2000-01 2. 1029/PN/2010 2001-02 3. 1030/PN/2010 2002-03 4. 1031/PN/2010 2003-04 5. 1032/PN/2010 2004-05 6. 1033/PN/2010 2005-06 ASSTT. COMMISSIONER OF INCOME-TAX .. APPEL LANT CEN. CIR. 2(2), PUNE VS. BHARATI VIDYAPEETH, .. RESPONDENT PUNE 411 030 .. ASSESSEE BY : S/SHRI SUNIL PATHAK & NIKHIL PAT HAK DEPARTMENT BY : SHRI A. S. SINGH ORDER PER D. KARUNAKARA RAO, A.M: THERE ARE 12 APPEALS UNDER CONSIDERATION AND THEY INVO LVE CROSS APPEALS. CONSIDERING THE FACT THAT THE COMMON ISSUES ARE INVOL VED, ALL THESE APPEALS OF THE ASSESSEE AS WELL AS REVENUE ARE CONSOLIDATED AND THEY ARE HEARD TOGETHER. FURTHER, THEY ARE BEING DISPOSED OF BY THIS CONSOLIDAT ED ORDER FOR THE SAKE OF 2 CONVENIENCE. GROUNDS ARE MOSTLY COMMON AND THEREFORE, T HE GROUNDS FOR THE AY 2000-01 ARE NARRATED HERE FOR REFERENCE PURPOSES. 2. THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDIC E TO EACH OTHER ON FACTS AND IN LAW, 1. THE LD CIT(A) ERRED IN NOT APPRECIATING THAT THE NOTICE ISSUED U/S 153C WAS NOT VALID AND THEREFORE, THE ASSESSMENT MADE U/ S 153C R.W.S. 153A WAS NULL AND VOID. 2. THE LD CIT(A) ERRED IN HOLDING THAT THE REFERENC E FOR SPECIAL AUDIT U/S 142(2A) WAS VALID AND THE ASSESSMENT MADE CONSEQUEN T THERETO WAS VALID IN LAW. 3. THE LD CIT(A) ERRED IN HOLDING THAT THE APPELLAN T TRUST WAS NOT ENTITLED TO THE EXEMPTION U/S 11 AND THE INCOME WAS TAXABLE IN THE HANDS OF THE APPELLANT. 4. THE LD CIT(A) ERRED IN HOLDING THAT THE ACTIVITI ES OF THE ASSESSEE TRUST WERE COVERED UNDER THE PROVISIONS OF SECTION 10(23C) AND ACCORDINGLY, THE CLAIM OF EXEMPTION OF THE ASSESSEE COULD BE ENTERTA INED ONLY U/S 10(23C)(VI) AND NOT U/S 11-13. 5. THE LD CIT(A) ERRED IN HOLDING THAT THE ASSESSEE TRUST HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(D) BY INVESTING THE FUN DS IN THE MODES OTHER THAN THOSE PRESCRIBED IN SECTION 11(5) AND HENCE, T HE EXEMPTION U/S 11 WAS NOT ALLOWABLE. 6. THE LD CIT(A) ERRED IN HOLDING THAT THE ASSESSEE TRUST HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(C). 7. THE LD CIT(A) ERRED IN HOLDING THAT THE ASSESSEE TRUST WAS CHARGING SOME CAPITATION FEE FOR ADMISSIONS TO THE STUDENTS WITHO UT APPRECIATING THE CORRECT FACTS OF THE CASE. 8. THE LD CIT(A) ERRED IN HOLDING THAT THE CASH AND THE LOOSE PAPERS FOUND WITH SHRI SHINDE BELONGED TO THE APPELLANT AND NOT TO SHRI SHINDE AND THAT THE APPELLANT HAD RECEIVED THE CAPITATION FEE AS PE R THESE PAPERS. 9. THE LD CIT(A) ERRED IN CONFIRMING THE FOLLOWING ADDITIONS TO THE TOTAL INCOME IN THE HANDS OF THE ASSESSEE I. DISALLOWANCE U/S 40A(3) RS 8,920/- II. LIABILITIES WRITTEN BACK RS 33,90,406/- III. DISALLOWANCE OF CERTAIN EXPENDITURE OF RS 13,2 1,222/- ON THE GROUND THAT IT IS A CAPITAL EXPENDITURE. 10. THE LD CIT(A) ERRED IN NOT SETTING OFF THE EXC ESS DEFICIT IN THE HANDS OF THE APPELLANT TRUST TILL AY 1998-99 AGAINST THE INCOME OF THE APPELLANT FOR THIS YEAR. 11. THE LD CIT(A) ERRED IN HOLDING THAT THE DONATIO NS RECEIVED AGAINST THE ISSUE OF COUPONS WERE ON ACCOUNT OF THE CAPITATION FEE CHARGED FOR ADMISSIONS AND THEY WERE NOT THE CORPUS DONATIONS. 12. THE LD CIT(A) ERRED IN HOLDING THAT THE DONATIO NS RECEIVED SPECIFICALLY BY CHEQUES AS CORPUS DONATIONS ALSO CONSTITUTED INCOME OF THE APPELLANT. 13. THE LD CIT(A) ERRED IN DENYING THE DEDUCTION U/ S 80L TO THE APPELLANT. 14. THE APPELLANT REQUESTS FOR REDUCTION IN THE INTERES T CHARGED U/S 234A/B/C. 3. RELEVANT FACTS OF THE CASE ARE THAT THE SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 20.7.2005 IN THE CA SE OF SHRI RAMCHANDRA 3 DADA SHINDE (RD SHINDE) AT HIS OFFICE PREMISES AT BHARATI VIDYAPEETH, BHARATI VIDYA BHAVAN, PUNE AS WELL AS AT HIS RESIDENCE AT ASHIRWAD BHARATI NAGAR, PAUD ROAD, KOTHRUD. SHRI RAMCHANDRA DADA SHINDE IS THE EMPLOYEE OF BHARATI VIDYAPEETH, PUNE IN THE CAPACITY OF ACCOUNTS OFFICE R. HE LOOKS AFTER THE ACCOUNTS OF VARIOUS TRUSTS OF BHARATI GROUP INCLUDING THE PRESENT CASE I.E. BHARATI VIDYAPEETH. SEARCH RESULTED IN SEIZURE OF SEVERAL DOCU MENTS RELATING TO DONATIONS/CAPITATION FEE CHARGED BY BHARATI VIDYAPEET H. THE SEARCH ASSESSMENTS U/S 153A WERE TAKEN UP IN THE NAME OF SRI R D SHINDE . THE CASE WAS ASSIGNED TO THIS CIRCLE BY THE CIT (C), PUNE VIDE JURISDICTIONAL ORDER DATED 26.4.2006U/S 127 OF THE I.T. ACT, 1961. SUBSEQUENTLY, AFTER RECORDING T HE REASONS AS REQUIRED, THE NOTICES U/S 153C WERE ISSUED TO THE ASSESSEE FOR THE BLOCK PERIOD CONSISTING OF A.Y 2000-01 TO 2005-06 ON 30.3.2007 IN RESPONSE TO W HICH THE RETURNS WERE FILED ON 25.7.2007. COPY OF THE SATISFACTION NOTE WAS PROV IDED TO THE ASSESSEE. THE ASSESSEE, VIDE ANOTHER LETTER DATED 24.7.2008 HAS RAIS ED OBJECTIONS TO NOTICE U/S 153C, FOR ASSESSMENT YEARS 2000-01 TO ASSESSMENT YEARS 2005-06. THE OBJECTIONS RELATING TO NOTICE UNDER SECTION 153C ARE N OT ACCEPTABLE THE AO AND THE REASONS IN THIS REGARD ARE DISCUSSED IN THE FOLLOWI NG PARAGRAPHS. COPY OF THE SATISFACTION NOTE AS PROVIDED TO THE ASSESSEE VIDE L ETTER NO PN/DCIT/CC2(2)153CC/07-08/334 ON 10.10.2007 ARE DISC USSED IN THE SUBSEQUENT PARAGRAPHS OF THIS ORDER. IN THE LIGHT OF T HE ABOVE NOTE SUPPLIED TO THE ASSESSEE, THE ASSESSEE RAISED VARIOUS OBJECTIONS TO THE ISSUANCE OF THE NOTICES U/S 153C OF THE ACT FOR A.Y 2000-01 TO 20005 -06, VIDE LETTER REF. NO: BV/CO/2008-09, DATED 24.7.08. THE SAME AS EXTRACTED BY THE CIT(A) IS REPRODUCED AS BELOW. IN THIS CASE, YOUR HONOUR HAS ISSUED US NOTICE U/S 153C IN PURSUANCE OF THE SEARCH ON SHRI R. D. SHINDE. YOUR HONOUR HAS GI VEN US THE SATISFACTION NOTE WHEREIN YOUR HONOUR HAS REFERRED TO THE DOCUME NTS RELATING TO THE ASSESSEE FOUND WITH SHRI R.D. SHINDE. ACCORDINGLY, YOUR HONOUR IS OF THE OPINION THAT SINCE VARIOUS DOCUMENTS SEIZED FROM SH RI R. D. SHINDE PERTAIN TO THE ASSESSEE, THE NOTICE U/S 153C IS VAL ID. THE ASSESSEE SUBMITS THAT THERE IS NO JUSTIFICATION FOR ISSUE OF NOTICE U/S 153C. IN VIEW OF PROVISIONS OF SECTION 153C WHERE ANY MONEY, BULLION , JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO SECTION IN 153A, THEN NOTICE U/S 153C CAN BE ISSUED TO THE PERSON WHOSE BOOKS OF ACC OUNTS, ETC. ARE SEIZED. THE ASSESSEE SUBMITS THAT THE DOCUMENTS FOU ND WITH SHRI SHINDE WHICH ARE MENTIONED IN YOUR REASONS ARE NOT INCRIMI NATING DOCUMENTS BUT THEY ARE THE DOCUMENTS FOR THE TRANSACTIONS WHICH A RE DULY ACCOUNTED BY THE ASSESSEE TRUST IN ITS BOOKS AND THEREFORE, THER E WAS NO REASON TO ISSUE NOTICE TO THE ASSESSEE U/S 153C. THE ASSESSEE CONTE NDS THAT WHERE REGULAR DOCUMENTS WHICH ARE ACCOUNTED AND CAN BE VE RIFIED ARE SEIZED, THEN NO NOTICE U/S 153C CAN BE ISSUED. NO INCRIMINA TING MATERIAL WAS FOUND PERTAINING TO THE ASSESSEE DURING THE SEARCH ON SHRI SHINDE. HENCE, 4 WE SUBMIT THAT THE NOTICE ISSUED U/S 153C IS NOT VA LID AT ALL SINCE NO INCRIMINATING EVIDENCE HAS BEEN FOUND PERTAINING TO THE ASSESSEE. ACCORDINGLY, WE REQUEST YOUR HONOUR TO KINDLY DROP THE PROCEEDINGS INITIATED U/S 153C AND OBLIGE. 2. YOUR HONOUR HAS FURTHER STATED THAT THE SEIZED B OOKS OF ACCOUNTS INDICATE DONATIONS RECEIVED IN CASH. HOWEVER, WE SU BMIT THAT THE DEPT. HAS NOT SIZED ANY BOOKS OF ACCOUNTS PERTAINING TO T HE ASSESSEE TRUST AT THE TIME SEARCH ON SHRI SHINDE. THEREFORE, THERE IS NO QUESTION OF ANY SEIZURE AND THE FACT THAT THE ASSESSEE HAS RECEIVED DONATIONS IN CASH IS ON THE BASIS OF THE POST SEARCH ENQUIRIES. THEREFORE, THE NOTICE ISSUED ON THIS GROUND IS TOTALLY INVALID. 3. LASTLY, YOUR HONOUR HAS ALSO REFERRED TO THE ST ATEMENT OF SHRI R. D. SHINDE WHEREIN AS PER YOUR HONOUR HE HAS STATED THA T RS 2 CRS. RECEIVED ON ACCOUNT OF CONSULTANCY FEE FROM STUDENTS HAS BEE N DEPOSITED IN THE BUILDING AND EQUIPMENT FUND OF THE VARIOUS TRUSTS O F BHARATI VIDYAPEETH GROUP. WE FAIL TO UNDERSTAND AS TO HOW YOUR HONOUR CAN ISSUE NOTICE U/S 153C ON THE BASIS OF THIS STATEMENT OF SHRI R. D SH INDE. FIRST OF ALL, SHRI R.D. SHINDE HAS NOT CATEGORICALLY ACCEPTED THAT RS. 2 CRS IS DEPOSITED IN THE BUILDING AND EQUIPMENT FUNDS. HE HAS IN HIS STA TEMENT LATER ON ACCEPTED THAT RS 2 CRS IS HIS INCOME. THUS, WHEN HE HAS ACCEPTED THE INCOME, THERE IS NO REASON TO TAX THE SAME IN SOME OTHER CASE. FURTHER, IN HIS STATEMENT, SHRI SHINDE HAS MERELY MENTIONED THA T RS 2 CRS MIGHT HAVE BEEN DEPOSITED IN THE FUNDS OF THE VARIOUS TRUSTS O F THE BHARATI VIDYAPEETH GROUP. FIRST OF ALL, HE HAS NOT STATED I N CLEAR TERMS THAT THE AMOUNT IS DEPOSITED AND HE HAS ONLY RAISED AN APPRE HENSION. SECONDLY, HE HAS NOT MENTIONED THAT THE NAME OF THE TRUST IN WHICH THE AMOUNT IS DEPOSITED. THERE ARE NUMBER OF CHARITABLE TRUSTS WHO SE DOCUMENTS ARE FOUNDED WITH HIM. ACCORDINGLY, THE NOTICE ISSUED TO THE ASSESSEE IS PURELY ON PRESUMPTION AND SURMISES AND HENCE, WE SUBMIT TH AT THE NOTICE U/S153C IS NOT JUSTIFIED AND THEREFORE, THE PROCEED INGS INITIATED MAY KINDLY BE DROPPED. WE HOPE THE EXPLANATION SUBMITTED BY US ARE THE GE NUINE REASONS TO ENABLE YOU TO DROP THE PROCEEDINGS INITIATED IN OUR CASE FOR THE ABOVE YEARS. 4. THUS, IT IS THE CASE OF THE ASSESSEE THAT NO MA TERIAL PERTAINING TO THE ASSESSEE WAS FOUND AND SEIZED AND IF ANYTHING WAS S EIZED THE SAME IS NOT INCRIMINATING . DURING THE ASSESSMENT PROCEEDINGS, AO FOUND THAT T HERE ARE VARIOUS DOCUMENTS SEIZED AND CAME TO THE CONCLUSION THAT THE SEIZURE OF DOCUMENTS IS ENOUGH FOR ISSUE OF THE NOTICE U/S 153C OF THE ACT AND INCRIMINATION OF THE SAME IS NOT NEEDED AS PER THE SA ID PROVISIONS. FURTHER, AS PER AO, THE RELATIONSHIP BETWEEN THE PERSONS SEARCHED I .E. SHRI R.D. SHINDE AND THE ASSESSEE IS VERY WELL ESTABLISHED AND THERE IS NO DISPUTE ABOUT THIS. THERE IS ALSO NO DISPUTE ABOUT THE FACT THAT THE PREMISES SEA RCHED I.E. CABIN OF SHRI R.D. SHINDE IS SITUATED ON 8 TH FLOOR OF BHARATI VIDYAPEETH BHAVAN. WHILE RAISING TH E OBJECTIONS TO THE JURISDICTION U/S 153C, THE ASSESSE E STATES THAT EVERYTHING FOUND IN THE MATERIAL IS ACCOUNTED FOR IN THE BOOKS. FIRSTLY , THE ASSESSEE NEVER EXPLAINED THE SEIZED MATERIAL SATISFACTORILY. BECAUSE THE SEIZED MATERIAL SHOWS 5 EVIDENCES, GOING AGAINST THE CASE OF THE ASSESSEE, THE ASSESSEE INVARIABLY AND CONVENIENTLY IGNORED THE VITAL CONTENTS OF THE SEIZE D MATERIAL. SECONDLY, IT IS FOR THE ASSESSEE TO DEMONSTRATE WHETHER THE NOTINGS IN TH E SEIZED MATERIAL ARE IN AGREEMENT WITH THE ENTRIES IN THE BOOKS. AO ANALYSED THE SEIZED THE PAPERS IN A COORDINATED MANNER AND ANALYSED THE DETAILS OF COLLEC TION FROM STUDENTS, AS RECORDED IN THE SEIZED SLIPS, ENCLOSED AS ANNEXURE I T O THE ORDER, AND NUMEROUS INSTANCES AND CAME TO THE CONCLUSION THAT THE SEIZE D MATERIAL BELONGS TO THE ASSESSEE AND THROWS LIGHT ON THE FACT OF COLLECTION OF DONATIONS/CAPITATION FEE, OVER AND ABOVE REGULAR FEE. FURTHER, THE AO INVOKED THE PROVISIONS OF SECTION 142(2A) OF THE ACT AND THE BOOKS OF ACCOUNTS WERE REF ERRED TO THE SPECIAL AUDITORS. THE CRUCIAL POINT IS THAT THE MATERIAL SE IZED BELONGED TO THE ASSESSEE AND THE SATISFACTION NOTE IS CRYSTAL CLEAR ABOUT THE SAME. IT IS FURTHER CLEAR THAT NUMBER OF DOCUMENTS FOUND AND SEIZED RELATE TO ADMIS SIONS IN VARIOUS COURSES, PERTAINING TO THE INSTITUTES, RUN BY BHARATI VIDYAPEET H, AND CHARGING OF DONATIONS/CAPITATION FEE, OVER AND ABOVE THE REGULAR F EE. IN VIEW OF THIS, THE OBJECTIONS RAISED BY THE ASSESSEE, AGAINST JURISDICTI ON U/S 153C, ARE NOT ACCEPTABLE. ACCORDINGLY, THE AO REJECTED THE OBJECTI ONS AGAINST THE ISSUE OF NOTICES U/S 153C OF THE ACT FOR THESE AYS. 5. THE AO THEREAFTER IN PARA 2.44 TO 2.52 OF THE ASSES SMENT ORDER ANALYSED THE FACTS OF THE CASE IN THE LIGHT OF THE OBJECTION S RAISED BY THE ASSESSEE AND TRIED TO ESTABLISH THAT THE OBJECTIONS ARE NOT VALID AND THE FACTS AND DOCUMENTS AVAILABLE ARE ADEQUATE FOR THE AO TO INITIATE PROCEEDI NGS U/S 153C. FURTHER, THE AO IS OF THE OPINION THAT MERE EXISTENCE OF SEIZED M ATERIAL BELONGING TO THE ASSESSEE IS SUFFICIENT TO ASSUME JURISDICTION IN RESP ECT OF ALL THE SIX YEARS AS PER THE PROVISIONS OF THE ACT AND HE CAN REOPEN THE CONCL UDED ASSESSMENTS EVEN WITHOUT THE EXISTENCE OF THE AY SPECIFIC INCRIMINATI NG SEIZED DOCUMENTS. HE IS OF THE OPINION MERE THE CLOSE CONNECTION BETWEEN THE PE RSONS SEARCHED AND THE ASSESSEE IS ADEQUATE ASSUME JURISDICTION U/S 153C OF THE ACT. HE HAS ALSO QUOTED THE NOTINGS FROM LOOSE PAPER SEIZED VIDE BUNDLE NO. 2 OF PANCHNAMA DATED 21.7.2005, WHEREIN FIGURES OF HUGE COLLECTIONS IN LA KHS ARE NOTED, ALL OF WHICH WAS MADE THE BASIS OF ADMISSION FOR CAPITATION FEE O F MORE THAN 9 CRORES IN A.Y 2006-07. SATISFACTION ITSELF WAS CLAIMED TO BE SUFF ICIENT AND SPEAKING TO ESTABLISH THE VALIDITY OF THE PROCEEDING INITIATED U/S 153C. T HE DEFENCE OF THE ASSESSEE THAT THE MONEY AND DOCUMENTS SEIZED BELONGED TO SHRI SHINDE AS HE HAS OWNED THEM UP AND THE APPELLANT HAD NO KNOWLEDGE OR COMPLI CITY TO THE SAID AFFAIRS OF COLLECTING MONEY FOR ADMISSIONS, WERE HELD NOT ACCEPT ABLE IN VIEW OF MANY 6 REASONS INCLUDING THE FACTS THAT THE ASSESSEE HAD CL OSE RELATIONS WITH SHRI SHINDE. TO ESTABLISH THIS, THE AO HAS REFERRED TO FAC TS AND ARGUMENTS WHICH ARE ALREADY NOTED IN PARA 5 OF THIS ORDER AND ARE NOT BEING REPEATED AGAIN. THE DEFENCE TAKEN BY THE APPELLANT TO PLEAD ITS IGNORANC E OR NON INVOLVEMENT IN THE SAID COLLECTION OF MONEY FOR ADMISSION, ON THE GROUND THAT SHRI SHINDE HAS NOW BEEN REMOVED FROM SERVICE, WAS NOT ACCEPTED BY THE AO, ON THE GROUND THAT IT HAS ONLY BEEN DONE AS AN AFTER THOUGHT AFTER REALIZING THE REQUIREMENT OF THEIR DEFENCE. AO HAS REFERRED TO FACTS AND EVIDENCES WHICH EMERGED AFTER SEARCH AND SURVEY AND WHICH HAVE BEEN DESCRIBED IN THE FACTUAL M ATRIX OF THE CASE IN PARA 5. TO AVOID REPETITION DETAILED NARRATION IS NOT GIVE N AGAIN. ON THE ACCOUNTED NATURE OF THE DOCUMENTS REFERRED TO IN THE SATISFACTIO N, IT WAS STATED BY THE AO THAT THE ASSESSEE NEVER CO-OPERATED IN EXPLAINING EAC H AND EVERY ITEM FOUND DURING SEARCH, IN POST SEARCH INQUIRIES AND WHETHER A DO CUMENT IS INCRIMINATING OR NOT CAN ONLY BE FOUND AFTER MAKING NECESSARY VERIFI CATION OR WHICH FIRST INITIATION U/S 153C WAS REQUIRED. THE AO FURTHER REFERRED TO THE INCRIMINATING DOCUMENTS AND HUGE CASH SEIZED, WHICH ACCORDING TO H IM VERY CLEARLY ESTABLISHED THE COLLECTION OF THE MONEY IN LIEU OF ADMISSIONS IN CRORES. IN SUPPORT OF THE SAME, RELIANCE WAS PLACED ON THE STATEMENT O F SHRI SHINDE. IN VIEW OF ALL THESE DISCUSSIONS, THE AO HELD THE PROCEEDINGS INITI ATED U/S 153C AS VALID AND CORRECT. FROM THE ORDER OF THE AO, IT IS AMPLY CLEAR THA T THE AO NEVER FIND THE NECESSITY OF GOING INTO THE REQUIREMENT OF EXAMINING IF THERE EXISTS AY SPECIFIC INCRIMINATING SEIZED DOCUMENTS INVOLVING THE ASSESSE E. HE IS OF THE BONA FIDE BELIEF THAT THE HE CAN ASSUME JURISDICTION IN ALL RES PECT OF THE SIX ASSESSMENT YEARS AUTOMATICALLY WITHOUT THE EXISTENCE OF THE AY SPECIFIC INCRIMINATING DOCUMENTS. AGGRIEVED WITH THE ABOVE, THE ASSESSEE FI LED THE PRESENT APPEAL WITH THE ISSUE RELATING TO THE VALIDITY OF THE NOTICE. CIT(A)S ORDER 6. DURING THE FIRST APPEAL PROCEEDING, THE ASSESSEE MA DE VARIOUS SUBMISSIONS VIDE LETTER DT. 16.2.2009. THEY ARE BEING QUOTED BELOW FOR READY REFERENCE AND PROPER APPRECIATION: 4.1- IN THIS CASE, THE LD AO HAD ISSUED NOTICE U/S 153C DATED 30.3.2007 (PAGE NO. 55) IN PURSUANCE OF THE SEARCH ON SHRI R.D. SHINDE. THE LD AO HAS GIVEN US THE SATISFACTION NOTE (PAGE NO 5 6 TO 59) WHEREIN HE HAS REFERRED TO THE DOCUMENTS RELATING TO TH E ASSESSEE FOUND WITH SHRI R.D. SHINDE. THE SATISFACTION NOTE I S REPRODUCED BY THE LD AO ON PAGE 23 25 OF ASST. ORDER. ACCORDINGLY, THE LD AO IS OF THE OPINION THAT SINCE VARIOUS DOCUMENTS SEIZED F ROM SHRI R.D. SHINDE PERTAIN TO THE ASSESSEE, THE NOTICE U/S 153C IS VALID. THE ASSESSEE SUBMITS THAT THERE IS NO JUSTIFICATION FOR I SSUE OF NOTICE U/S 7 153C. SECTION 153C STATES THAT WHERE ANY MONEY, BULL ION, JEWELLERY OR VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNTS OR DO CUMENTS SEIZED BELONG TO A PERSON OTHER THAN THE PERSON REFERRE D TO SECTION IN 153A, THEN NOTICE U/S 153C CAN B ISSUED TO THE P ERSON WHOSE BOOKS OF ACCOUNTS, ETC. ARE SEIZED. THE ASSESSEE SUB MITS THAT THE DOCUMENTS FOUND WITH SHRI SHINDE WHICH ARE MENTIONED IN THE SATISFACTION NOTE RECORDED BY THE LD AO ARE NOT INCRIM INATING DOCUMENTS BUT THEY ARE THE DOCUMENTS FOR THE TRANSACTI ONS WHICH ARE DULY ACCOUNTED BY THE ASSESSEE TRUST IN ITS BOOKS AND THEREFORE, THERE WAS O REASON TO ISSUE NOTICE TO THE ASSESSEE U/ S 153C. THE ASSESSEE CONTENDS THAT WHERE REGULAR DOCUMENTS WHICH A RE ACCOUNTED AND CAN BE VERIFIED ARE SEIZED, THEN NO NOT ICE U/S 153C CAN BE ISSUED. WE HAD ALSO GIVEN A CHART EXPLAINING THE PAPERS IS SUBMITTED. NO INCRIMINATING MATERIAL WAS FOUND PERTAIN ING TO THE ASSESSEE DURING THE SEARCH ON SHRI SHINDE. HENCE, WE S UBMIT THAT THE NOTICE ISSUED U/S 153C IS NOT VALID AT ALL SINC E NO INCRIMINATING EVIDENCE HAS BEEN FOUND PERTAINING TO THE ASSESSEE. ACCORDINGLY, WE SUBMIT THAT THE NOTICE U/S 153C IS NOT VALID AND THEREFORE, THE ASSTT. MADE BY THE LD AO IN PURSUANCE OF THE SAID NO TICE IS ALSO INVALID. 4.2 THE LD AO HAS FURTHER STATED THAT THE SEIZED BOOK S OF ACCOUNTS INDICATE DONATIONS RECEIVED IN CASH. HOWEVER, WE SUBM IT THAT THE DEPT. HAS NOT SEIZED ANY BOOKS OF ACCOUNTS PERTAININ G TO THE ASSESSEE TRUST AT THE TIME SEARCH ON SHRI SHINDE. THERE FORE, THERE IS NO QUESTION OF ANY SEIZURE AND THE FACT THAT THE ASSESSEE HAS RECEIVED DONATIONS IN CASH IS ON THE BASIS OF THE PO ST SEARCH ENQUIRIES. THEREFORE, THE NOTICE ISSUED ON THIS GROUND IS TOTALLY INVALID. 4.3 LASTLY, THE LD AO HAS ALSO REFERRED TO THE STATEME NT OF SHRI R.D. SHINDE (REFER PAGE 60 TO 62) WHEREIN ACCORDING TO THE A O, SHRI SHINDE HAS STATED THAT RS 2 CRS. RECEIVED ON ACCOUNT OF CONSULTANCY FEE FROM STUDENTS HAS BEEN DEPOSITED IN THE BUILDING AND EQUIPMENT FUND OF THE VARIOUS TRUSTS OF BHARATI VIDYA PEETH GROUP. WE FAIL TO UNDERSTAND AS TO HOW THE LD AO CAN ISSUE NOTICE U/S 153C ON THE BASIS OF HIS STATEMENT OF SHRI R.D. SHIN DE. FIRST OF ALL, SHRI R.D. SHINDE HAS NOT CATEGORICALLY STATED THAT RS 2 CRS. IS DEPOSITED IN THE BUILDING AND EQUIPMENT FUNDS. HE H AS IN HIS STATEMENT LATER ON ACCEPTED THAT RS 2 CRS. IS HIS INC OME. THUS, WHEN HE HAS ACCEPTED THE INCOME, THERE IS NO REASON T O TAX THE SAME IN SOME OTHER CASE. FURTHER, IN HIS STATEMENT, SH RI SHINDE HAS MERELY MENTIONED THAT RS 2 CRS. MAY BE DEPOSITED IN T HE FUNDS OF THE VARIOUS TRUSTS OF THE BHARATI VIDYAPEETH GROUP. FIRS T OF ALL, HE HAS NOT STATED IN CLEAR TERMS THAT THE AMOUNT IS DEP OSITED AND HE HAS ONLY RAISED AN APPREHENSION. SECONDLY, HE HAS NOT MENTIONED THAT THE NAME OF THE TRUST IN WHICH THE AMOUNT IS DE POSITED. THERE ARE NUMBER OF CHARITABLE TRUSTS WHOSE DOCUMENTS ARE FOUN D WITH HIM. ACCORDINGLY, THE NOTICE ISSUED TO THE ASSESSEE IS PURELY ON RESUMPTION AND SURMISES AND HENCE, WE SUBMIT THAT THE NOTICE U/S 153C IS NOT JUSTIFIED AND THEREFORE, THE ASSESSMENT M ADE IS GROSSLY ILLEGAL AND THE SAME MAY KINDLY BE HELD TO BE NULL AND VOID. 8 7. THE AO IN HIS REMAND REPORT DT 5.6.2009 FOR AY 200 0-01 TO 2006-07, MADE COUNTER SUBMISSIONS ON APPELLANTS ABOVE SUBMIS SIONS ON THE ABOVE ISSUES. THESE ARE QUOTED BELOW FOR PROPER APPRECIATION: PROVISIONS OF SECTION 153C ARE NOT APPLICABLE: THE ASSESSEE HAS CHALLENGED THE JURISDICTION U/S 153 C ON VARIOUS GROUNDS, THE MAIN BEING THAT NO INCRIMINATING DOCUMENTS PERTAINING TO THE ASSESSEE WERE SEIZED DURING THE COURSE OF THE SEARCH I N THE CASE OF SHRI R D SHINDE. THE OBJECTIONS RAISED Y THE ASSESSEE ARE TH E SAME AS THOSE WHICH WERE RAISED DURING THE ASSESSM3NT PROCEEDINGS. TH ESE HAVE BEEN CONSIDERED AND REJECTED BY THE AO IN PARA 2.40 ON PAGE 23 TO PARA 2.52 ON PAGE 32. THESE ARE NOT REPEATED HERE. IN VIEW OF T HE DISCUSSION IN THESE PARAS, THE ASSESSEES OBJECTIONS DESERVE TO BE REJECTED. ADDITIONS ARE MADE IN RESPECT OF ISSUES WHEREIN NO INCRIMINATING EVIDENCE HAS BEEN FOUND DURING SEARCH: IT IS THE ASSESSEES CONTENTION THAT IN AN ORDER PASS ED U/S 153C, THE ADDITIONS THAT ARE TO BE MADE ARE ONLY THOSE WHICH ARE BASED ON INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH. IT IS THE ASSESSEES CONTENTION THAT NONE OF THE ADDITIONS MADE IN ITS C ASE ARE BASED ON DOCUMENTS FOUND DURING THE COURSE OF THE SEARCH. THE ASSESSEES CONTENTIONS ARE FACTUALLY AND LEGALLY INCORRECT. THERE IS NO STIPULATION IN SECTION 153C THAT IN AN ASSESSMENT M ADE UNDER THE SAID SECTION, THE INCOME ASSESSED SHOULD BE BASED SOLELY ON INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF THE SEARCH. THAT WAS THE CASE IN RESPECT OF THE CONCEALED INCOME THAT WAS REQUIRED TO B E COMPUTED UNDER THE EARLIER PROVISIONS IN SECTION 158BC. HOWEVER, THE SAID STIPULATION IS NOT PRESENT IN SECTION 153A OR 153C. THE CONTENTION IS FACTUALLY INCORRECT TOO AS MANY OF THE ADDITIONS MADE WHILE COMPLETING THE ASSESSMENT HAVE BEEN BASED ON THE DOCUMENTS FOUND DURING THE COURSE OF THE SEARCH. THE DOCUMENTS H AD INDICATED THAT THE ASSESSEE IS CHARGING HUGE DONATIONS, A PART OF WH ICH WAS INTRODUCED IN THE VARIOUS FUNDS IN THE GUISE OF COUPON DONATION S. THESE HAVE BEEN BROUGHT TO TAX WHILE COMPLETING THE ASSESSMENTS U/S 153C. 8. THE ASSESSEE IN HIS REJOINDER TO THE COMMENTS OF AO IN REMAND REPORT, HAS MADE FURTHER SUBMISSIONS VIDE THEIR LETTER DT 23.2. 2010. THE SAME IS ALSO QUOTED BELOW FOR PROPER APPRECIATION: 9. THE ASSESSEE HAD FURTHER OBJECTED TO THE JURISDIC TION U/S 153C. THE LD AO HAS STATED THAT THIS ISSUE HAS BEEN CONSIDERED IN THE ASST. ORDER AND IN VIEW OF THE REASONS GIVEN, THE SAME IS TO BE REJEC TED. THE ASSESSEE SUBMITS THAT THE NOTICE U/S 153C WAS ISSUED ON THE BASIS OF SEARCH ON SHRI SHINDE. THE LD AO HAS STATED THAT CERTAIN DOCUMENTS WERE FOUND RELATING TO THE TRUST BECAUSE OF WHICH NOTICE U/S 153C WAS IS SUED. IT IS SUBMITTED THAT NO INCRIMINATING DOCUMENT WAS FOUND DURING SEARCH AND HENCE, THE NOTICE ISSUED IS NOT VALID IN LAW. IT IS SUBMIT TED HAT A SEARCH ACTION IS A VERY SEVERE ACTION TAKEN BY THE DEPT. AND ONE CANNOT MAKE ROVING ENQUIRIES. THERE HAS TO BE SOME INCRIMINATING MATERIAL WHICH IS FOUND AS A RESULT OF SEARCH. IF THE MATERIAL FOUND IS ACCOUNTED IN THE BOOKS, THE ASSESSEE SUBMITS THAT ONE CANNOT RESORT TO THE PROVISIONS OF 9 SECTION 153C. WE HAVE CLARIFIED THAT NO INCRIMINATING MATERIAL WAS FOUND IN THE COURSE OF SEARCH ON SHRI SHINDE PERTAINING TO T HE ASSESSEE AND HENCE, THE NOTICE ISSUED U/S 153C IS NOT VALID. THE ASSESSEE SUBMITS THAT NOTICE U/S 153C CAN BE ISSUED ONLY WHEN SOME INCRIMI NATING MATERIAL IS FOUND. IT IS ALSO TO BE NOTED THAT IN THE ASSTS. U/ S 153C R.W.S. 153A, ADDITIONS CAN BE MADE ONLY ON THE BASIS OF INCRIMINA TING MATERIAL WHICH ALSO INDICATES THAT THE NOTICE U/S 153C CAN BE ISSU ED ONLY IF SOME INCRIMINATING MATERIAL IS FOUND. IN THIS CONTEXT, THE ASSESSEE RELIES UPON THE FOLLOWING DECISION WHEREIN THE COURT HAS HELD THA T IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE, NO ADDITION CAN BE MADE IN 153A ASSTS. A. SHRI ANIL KUMAR BHATIA V ACIT (ITA NO 2660-2665/DEL/0 9) B. LMJ INTERNATIONAL (119 TTJ 214 (KOL) C. SUNCITY ALLOYS P LTD (124 TTJ 674 (JODH) D. SHRI GANGADHAR D KSHIRSAGAR (ITA NO 1042 TO 1048/PN/08 15) FINALLY, THE LD AO HAS STATED THAT THE CONTENTI ON OF THE ASSESSEE THAT NO ADDITION CAN BE MADE U/S 153C WHEN NO INCRIM INATING EVIDENCE IS FOUND IS NOT JUSTIFIED. ACCORDING TO HIM, THERE IS NO REQUIREMENT THAT U/S 153C, THE INCOME SHOULD BE ASSESSED SOLELY ON THE B ASIS OF INCRIMINATING EVIDENCE FOUND DURING SEARCH. SECONDLY, HE HAS STATED THAT CERTAIN ADDITIONS ARE MADE ON THE BASIS OF EVIDENCE FOUND DU RING SEARCH. THE ASSESSEE SUBMITS THAT IN THE ASST. U/S 153C R.W.S. 1 53A, THE ADDITION CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING EVIDENCE FOUND DURING SEARCH. SINCE IN THIS CASE, THE LD AO HAS NOT POINTED OUT T HE INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH, THE ASSESSEE SUBMITS THAT THE ADDITIONS MADE ARE NOT JUSTIFIED. WE HAVE ALREADY CLA RIFIED THE LEGAL POSITION IN OUR SUBMISSIONS. SECONDLY, THE AO HAS ON LY STATED THAT CERTAIN ADDITIONS ARE MADE ON THE BASIS OF EVIDENCE FOUND DU RING SEARCH. HE HAS NOT ELABORATED AS TO WHICH INCRIMINATING EVIDENCE WAS FOUND WHICH HAS RESULTED IN THE ADDITION. THUS, THE ASSESSEE SUBMITS THAT NO INCRIMINATING EVIDENCE WAS FOUND AND HENCE, THE ADDITIONS MADE BY THE LD AO ARE NOT JUSTIFIED AT ALL. 9. AT THE END OF THE PROCEEDINGS, THE CIT(A) CONFIRM ED THE VALIDITY OF THE ISSUE OF THE NOTICE U/S 153C OF THE ACT IN RESPECT O F THE AYS UNDER CONSIDERATION AS PER THE DISCUSSION GIVEN IN PARAGRAPH 7.6.1 OF THE IMPUGNED ORDER. FOR THE SAKE OF CONVENIENCE, THE SAME ARE REPRODUCED AS UNDER. 7.6.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE AO AND FIND THAT THE OBJECTIONS OF THE APPELLAN T ON THE VALIDITY OF S. 153C IS HINGED ON MANY GROUNDS. THE FIRST AND THE FORE MOST IS BASED ON THE DENIAL OF OWNERSHIP OF CASH AND DOCUMENTS FOUND DURING SEARCH ESTABLISHING THE COLLECTION OF MONEY FOR GRANTING AD MISSIONS/CONSULTATION. AS PER AO THEY BELONG TO APPELLANT FOR GRANTING ADMIS SIONS, WHEREAS THE APPELLANT CLAIMS THIS TO BE BELONGING AND RELATING TO MR SHINDE FOR HIS CONSULTANCY. THE INCRIMINATING DOCUMENTS AND CASH ARE BEING CLAIMED BY THE AO TO BE BELONGING TO THE APPELLANT ON THE BASI S OF THE DISCUSSIONS MADE IN THE ASSESSMENT ORDER, MUCH OF WHICH HAS BEEN NARRATED IN PARA 5 OF THIS ORDER, WHEREAS ON THE OTHER HAND, THE APPELLA NT IS DENYING THE SAME AND TRYING TO MAKE A CASE THAT THOSE DOCUMENTS AND CASH BELONG TO MR SHINDE AND THE APPELLANT HAS NO KNOWLEDGE OR COMPL ICITY IN THAT AFFAIR. 10 THE APPELLANT, IN ASSUMPTION OF THEIR STAND BEING VA LID SEEM TO BE ARGUING IN PARA 4.1 OF THEIR SUBMISSIONS THAT THE PROCEEDING U /S 153C CAN BE HELD VALID IF ANY MONEY, BULLION, JEWELLERY OR VALUABLE ART ICLE OR THING OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED BELONG TO A PERSON OT HER THAN THE PERSON REFERRED TO IN SECTION 153A. IN CONTINUATION TO THE SA ME, THE APPELLANT IN THE REJOINDER TO THE REMAND REPORT HAS FURTHER ASSERTED THA T NO INCRIMINATING DOCUMENTS WERE FOUND IN THEIR PLACE AND HAD FURTHER WONDERED AS TO WHICH INCRIMINATING DOCUMENTS WERE FOUN D IN THEIR PLACE AND HAD FURTHER WONDERED AS TO WHICH INCRIMINATING DOCU MENT THE AO IS REFERRING TO. I DO NOT SEE ANY AMBIGUITY IN THE REFERENC E OF THE AO TO THE INCRIMINATING DOCUMENTS. THE INCRIMINATING EVIDENCES BEING REFERRED TO BY THE AO ARE UNDISPUTEDLY IN RESPECT OF UNACCOUNTED CAS H OF MORE THAN RS 3 CRORES, DOCUMENTS SEIZED SUGGESTING COLLECTION OF CAP ITATION FEE/DONATIONS IN LIEU OF ADMISSIONS IN CRORES AND THE ADMISSION OF SHRI SHINDE THAT APPROXIMATELY RS 2 CRORES EACH WAS COLLECTED IN EARLIE R TWO YEARS AND THE NEXUS BETWEEN SUCH CASH COLLECTION AND CASH DEPOSIT S IN THE BANK ACCOUNTS RELATING TO IMARAT AND OTHER FUNDS. THE APPEL LANT IS ALWAYS IN DENIAL MODE ON THE STRENGTH OF STATEMENT OF SHRI SHIN DE SAYING THAT IT REPRESENTS HIS CONSULTANCY INCOME, CARRIED OUT CLANDES TINELY WITHOUT THE KNOWLEDGE OF THE APPELLANT TRUST. THE STRATEGY OF THE APPELLANT, SEEM TO BE TO REPEAT THE SAME ARGUMENT AGAIN AND AGAIN THAT T HESE EVIDENCES DO NOT BELONG TO THEM. I HAVE DEALT THIS ISSUE IN DETA IL IN PARA 5 TO SAY WHY IT SHOULD BE HELD TO BE BELONGING TO APPELLANT AND FOR CAPITATION FEES. CONSISTENT DENIAL OF SUCH STRONG EVIDENCES WITH TOTA L DISREGARD TO THE ARGUMENTS MADE BY THE AO CANNOT HELP THE APPELLANT I N COMING OUT OF THE IMPLICATIONS THAT IT ENTAILS. AS THIS ASPECT HAS AL READY BEEN DEALT IN DETAIL IN PARA 5 OF THIS ORDER, WHERE AFTER EVALUATING ALL THE EVIDENCES AND ARGUMENTS ADVANCED BY BOTH THE SIDES, IT HAS BEEN HE LD THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, IT IS ESTABLISHED THAT THE SAME BELONG TO APPELLANT AND NOT MR SHINDE, THIS AR T OF THE ARGUMENT OF THE APPELLANT ON THE ISSUE OF VALIDITY OF INITIATIO N OF S. 153 IS HELD INVALID AND IS ACCORDINGLY DISMISSED. 7.6.2 IN ADDITION TO THE ABOVE, THE NEXT OBJECTION OF THE APPELLANT IS APPARENTLY BASED ON THE ARGUMENT THAT THE DOCUMENTS ENLISTED BY THE AO IN THE SATISFACTION ARE NOT INCRIMINATING AND THEREFORE NOTICE U/S 153C IS NOT VALID. IT APPEARS FROM THE ABOVE ARGUM ENT THAT THE APPELLANT IS NOT DISPUTING THE OWNERSHIP OF DOCUMENT S REFERRED IN SATISFACTION BUT ARE SAYING THAT THOSE ARE ART OF THE REGULAR BOOKS OF ACCOUNTS OR ARE ACCOUNTED IN THE REGULAR BOOKS OF ACCOU NTS, AND THEREFORE CANNOT BE RELIED TO INITIATE PROCEEDING U/S 153C. ON CAREFUL CONSIDERATION, I FIND THAT THE WORD INCRIMINATING IS MISSING IN S. 153C, WHOSE EXISTENCE IS BEING SO STRONGLY RELIED UPON BY THE APP ELLANT. FURTHERMORE, THE AOS CONTENTION THAT A DOCUMENT IS ACCOUNTED OR NOT CAN ONLY BE FOUND AFTER THE VERIFICATION, FOR WHICH INITIATION OF PROCEEDINGS U/S 153C IS REQUIRED, APPEARS QUITE LOGICAL AND CORRECT. I DO NOT TH INK THAT THE AO CAN CARRY OUT NECESSARY VERIFICATION AND INQUIRY UNLESS THE JURISDICTION IS ASSUMED UNDER EITHER 153A OR 153C OR ANY SUCH SIMILAR PROVISION OF ACT. IN VIEW OF THE ABOVE, I DO NOT FIND EVEN THIS ARGUME NT VALID AND ACCEPTABLE AND IS THEREFORE DISMISSED. 10. THUS, THE CIT(A) IS OF THE VIEW THAT THE EXPRESS ION INCRIMINATING IS NOT BORNE IN THE STATUTE BOOK AND THEREFORE, THERE IS NO NE ED FOR SUPPLY OF WORDS 11 INTO THE STATUTE, WHICH ARE NOT THERE IN THE LEGISLAT ION. ACCORDINGLY, THE CIT(A) UPHELD THE ISSUE OF THE NOTICES U/S 153C OF THE ACT . APPEAL PROCEEDINGS BEFORE THE ITAT: 11. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A) ON THE ISSUE OF THE VALIDITY, THE ASSESSEE FILED THE PRESENT APPEAL RAISI NG VARIOUS ISSUES WHERE ONE OF THEM RELATES TO THE VALIDITY OF THE FINDING OF THE AO/CIT(A) ON THE ISSUE OF ASSUMING OF JURISDICTION IN MATTERS RELATING OF THE IS SUE OF NOTICES U/S 153C OF THE ACT SUMMARILY IN RESPECT ALL THE SIX AYS WITHOUT THE EXISTENCE OF ANY AYS SPECIFIC SEIZED DOCUMENTS AND INCRIMINATING SEIZED DOCUMENTS . THIS ISSUE GOES GOES INTO THE ROOT OF THE SEARCH ASSESSME NTS AND THEREFORE, WE PROCEED TO ADJUDICATE IT ON PRIORITY. 12. ARGUMENTS OF THE LD COUNSEL: ON THIS ISSUE OF THE VALIDITY OF THE NOTICES U/S153C OF THE ACT IN RESPECT OF THE AY UNDE R CONSIDERATION, THE LD COUNSEL ARGUED STATING THAT THE NOTICES ISSUED U/S 1 53A OF THE ACT ARE INVALID FOR VARIOUS REASONS AND THEY ARE: (I) THE DOCUMENTS SEIZED ARE NEITHER UNACCOUNTED DOCUMENTS NOR INCRIMINATING DOCUMENTS; (II) THE CONTE NTS OF THE SAID DOCUMENTS ARE ACCOUNTED IN THE REGULAR BOOKS OF ACCOUNTS OF THE ASSESSEE; (III) MOST OF THE DOCUMENTS SEIZED RELATE TO THE CURRENT AY, WHICH IS NO T THE SUBJECT MATTER OF DISCUSSION FOR THE AYS UNDER CONSIDERATION; (IV) THERE ARE NONE PERTAINING TO MANY OF THE AYS; (V) ONLY DOCUMENT RELATING TO THE A Y 2005-06 IS THE LEDGER WITH THE NAMES OF THE STUDENTS UNDER THE MANAGEMENT QUOTA , WHICH ARE OTHER UNDISPUTEDLY RECORDED IN THE CONCERNED BOOKS OF THE AS SESSEE AND THERE IS NO UNDISCLOSED ABOUT THE SAID LEDGER. REFERRING TO THE NA MES APPEARING IN THE SAID LEDGER (INWARD REGISTER), LD COUNSEL MENTIONED THAT T HESE ARE OBVIOUSLY ACCOUNTED NAMES AND THERE ARE NOT ANY UNACCOUNTED STU DENTS WHICH IS AN IMPOSSIBILITY; (VI) THIS LEDGER DOES NOT CONTAIN ANY FINANCIAL TRANSACTIONS; (VII) LD COUNSEL FILED A COPY OF THE ORDER OF THE TRIBUNAL OF P UNE BENCH IN THE CASE OF THE SINHGAD TECHNICAL EDUCATIONAL SOCIETY (SUPRA) AND ME NTIONED THAT WHERE THERE IS NO MATERIAL SEIZED BY THE REVENUE RELATING TO THE ASSE SSEE AND WHERE THERE IS NO INCRIMINATING DOCUMENTS, THE ASSESSMENT/CONCLUDED AS SESSMENT MUST NOT BE REOPENED OR DISTURBED. WHERE THERE IS SEIZURE OF ANY DO CUMENTS, THE CONCLUDED ASSESSMENT MUST NOT BE REOPENED AS LONG AS SUCH MATE RIAL IS INCRIMINATING AND THERE IS PRIMA FACIE OPINION THAT SOME INCOME IS CONC EALED BY THE ASSESSEE OR ESCAPED THE SAID ASSESSMENT. 12 13. REVENUES ARGUMENTS: ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE AO AND THE CIT(A) ON THIS ISSUE OF VALIDITY. BRIEFLY, HIS ARGUMENTS ARE THAT THE PROVISIONS OF THE PROVISO TO SEC TION 153A OF THE ACT GRANTS POWER TO THE AO FOR OPENING OR REOPENING OF THE S IX ASSESSMENTS. AS PER THE CIT-DR, AS AND WHEN THERE IS SEIZED DOCUMENTS OR OTHERS INVOLVING THE OTHER PERSON, THE THIRD PARTY, AO CAN ASSUME JURISDICTION IN RESPECT OF ALL THE SIX AYS OF THAT THIRD PARTY AND THERE IS NO REQUIREMENT OF THE LAW THAT THERE SHOULD EXIST AY-SPECIFIC AND INCRIMINATING DOCUMENTS. 14. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AS WELL AS THE SAID ORDER OF THE TRIBUNAL RELIED UPON BY THE AS SESSEES COUNSEL. IT IS A FACT THAT THERE ARE VARIOUS GROUNDS RAISED IN THE APPEAL S. THE CORE ISSUE THAT IS THE ROOT OF THE MATTER RELATES TO THE VALIDITY OF THE ASSESSMENT AND IT IS LEGAL IN NATURE. THIS ISSUE HAS VARIOUS SHADES AS NARRATED BY TH E LD COUNSEL AND THEY ARE: (I) WHETHER THE AO RECORDED THE SATISFACTION IN RES PECT OF ALL THE SIX AYS UNDER CONSIDERATION. (II) WHETHER THE SAID SATISFACTIO N IS BASED ON THE MATERIAL SEIZED BY THE REVENUE IN THE SEARCH OPERATION IN THE C ASE OF SRI SHINDE. (III) IF THE AO HAS REALLY TRANSFERRED THE MATERIAL PERTAINING TO ALL THE AYS? (IV) IF THE AO HAS COME TO THE RIGHT CONCLUSION THAT THE SAID MATERIAL I S INCRIMINATING IN NATURE; (V) IF THE LIST OF DOCUMENTS MENTIONED IN THE SATISFACT ION NOTE ARE NOT LARGELY RELATED TO THE CURRENT AY? WHILE THERE ARE NONE FOR SOME AYS AND SOME SEIZURE LIKE THE INWARD REGISTER ARE LIKE DEAD WOOD WITH IN TRANSACTIONS AT ALL. (VI) IF THE AO CAN ASSUME JURISDICTION IN RESPECT OF THE AY WHERE THERE I S NO SEIZURE DOCUMENTS WHATSOEVER AND IN RESPECT OF THE AY, WHERE THERE IS ONL Y SAID DEAL WOOD TYPE OF DOCUMENTS WITH NO FINANCIAL TRANSACTIONS. THERE ARE M ANY OTHER ISSUES RELATING TO THE MERITS OF THE ADDITIONS. ON UNDERSTANDING THE ISSUES, WE FIND IT IS PRUDENT TO ATTEND TO THE ISSUE OF THE VALIDITY OF THE NOTIC E U/S 153C OF THE ACT AS TRAVELS TO THE ROOT OF THE ASSESSMENT. THEREFORE, WE PROCEED TO TAKE UP THE LEGAL ISSUE RELATING TO THE VALIDITY OF THE ASSESSMENT. IN THIS REGARD, WE FIND THE NEED OF EXAMINING THE SCOPE OF THE ISSUE, THE DETAILS OF TH E SEIZED DOCUMENTS FOUND PLACE IN THE SATISFACTION NOTE, RELEVANT COMMENTARY O N SUCH EACH AND EVERY DOCUMENTS ETC. SO FAR AS THE SCOPE IS CONCERNED, WE FIND THAT THE SAME WAS EXAMINED IN THE CASES OF KUMAR & CO AND THE SINHGAD TECHNICAL EDUCATION SOCIETY (SUPRA) RELIED UPON BY THE LD COUNSEL FOR THE ASSESSEE AND THE TRIBUNAL OF THIS BENCH HAS COME TO THE CONCLUSION THAT THE A O SHALL NOT POSSESS UNFETTERED POWERS OF SUMMARILY OPINING OR REOPENING THE CONCLUDED ASSESSMENTS OF ALL THE SIX ASSESSMENT YEARS IN RESPECT OF THE THI RD PARTY MENTIONED IN SECTION 13 153A OF THE ACT WITHOUT HAVING IN POSSESSION THE AY -SPECIFIC INCRIMINATING DOCUMENTS. WE PROCEED TO IMPORT RELEVANT PORTIONS OF A N UNREPORTED DECISION OF THE TRIBUNAL OF THIS BENCH IN THE CASE OF SINHGAD TE CHNICAL EDUCATION SOCIETY VIDE ITA NO 114 TO 117/PN/10. 15. EXTRACTION OF PARAGRAPHS 8 TO 15 FROM THE ORDER OF THE SINHGAD TECHNICAL EDUCATION SOCIETY VIDE ITA NO 114 TO 117/PN/10. 8. ADDITIONAL GROUND: INVALID NOTICES U/S 153C: IN THIS REGARD, WE HAVE PERUSED THE REASONS RECORDED BY THE AO OF THE ASSESSEE. WE FIND THAT THERE EXISTS THE REASONS FOR ISSUE OF NOTICE U/S 153C OF THE ACT AND IT IS AN UNDISPUTED FACT. WE ALSO FIND THA T THEY ARE COMMON REASONS FOR ALL SIX AYS INCLUDING THE FOUR AYS UNDE R CONSIDERATION. THE COUNSEL FOR THE ASSESSEE ARGUED VEHEMENTLY THAT AO ISSUED NOTICES U/S 153C SIMPLY RELYING ON THE CONTENTS OF SECTION 153A (1)(B) OF THE ACT AND ALSO ITS FIRST PROVISO IGNORING VARIOUS SETTLED LEG AL PROPOSITIONS IE THE CONCLUDED ASSESSMENTS, WHICH FALL IN THE BUNCH OF S IX AY, SHOULD NOT DISTURBED UNLESS THERE EXISTS INCRIMINATING MATERIA L RELEVANT FOR THE SAID AYS OR CONCLUDED ASSESSMENTS AND SUCH INCRIMINATING MATERIAL SHOULD BE OF3 THAT NATURE IT SHOULD NOT BE A DUMB DOCUMENTS. IN THIS REGARD, THE STAND OF THE REVENUE IS THAT THE EXPRESS PROVISIONS ARE CLEAR ON THE PROPOSITION THAT THE AO IS EMPOWERED UNDER THE STAT UTE TO ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS I MMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH SUCH SEARCH IS CONDUCTED.. (FIRST PROVISO). CONSIDERING THE CONTR ARY STANDS OF THE PARTIES, WITHOUT GOING INTO THE MERITS OF THE ADDITIONS, WE HAVE DECIDED TO ADJUDICATE THE LEGAL ISSUE IE ADDITIONAL GROUND AND IT INVOLVES THE STUDY THE DETAILS OF THE REASONS RECORDED BY THE AO BASED ON WHICH THE AO ISSUED THE IMPUGNED NOTICES U/S 153C OF THE ACT FOR THE IMPUGNED FOUR AYS. FOR THIS PURPOSE, WE HAVE EXTRACTED THE RELEVA NT PORTION OF THE REASONS AND THE SAME READ AS FOLLOWS. 9. SATISFACTION NOTE FOR PROCEEDINGS U/S 153C OF THE I T ACT, 1961 IN THE CASE OF M/S SINHGAD TECHNICAL EDUCATIONAL SOCIE TY (STES), PUNE 1) PAGE 11 THIS IS VOUCHER OF SINHGAD TECHNICAL EDUCATION SOCIETY (STES) DT. 17-01- 2004 FOR CHEQUE PAYMENT OF RS. 2.80 LACS TO AMIR MOIDDIN SHAIKH. 2) PAGE 12 THIS IS VOUCHER OF STES DT. NIL FOR C HEQUE PAYMENT OF RS. 1 LACS TO AMIR MOIDDIN SHAIKH. 3) PAGE NO. 13- THIS IS VOUCHER OF STES DT. 30.01. 2005 FOR CHEQUE PAYMENT OF RS. 2 LACS TO SHAIKH AMIR SHAIKH. 4) PAGE NO. 14- THIS IS VOUCHER OF STES DT. 27.09. 2004 FOR CASH PAYMENT OF RS. 1 LACS TO SHAKI AMIR SHAIKH 5) PAGE NO. 15- THIS IS VOUCHER OF STES DT. NIL FO R CHEQUE PAYMENT OF RS. 50,000/- TO SHAIKH AMIR SHAIKH. 6) PAHE NO. 45- THIS IS AN OFFICE COPY OF LETTER D T. 23.06.2007 WRITTEN TO DIRECTOR OF DTE, MUMBAI BY SINHGAD COLLEGE OF PH ARMACY, OWNED BY STES. 14 BUNDLE NO. A-2 7) PAGE NO. 35- THERE ARE THE BALANCES AVAILABLE T O VARIOUS INSTITUTE OF STES ON OR BEFORE 25.06.2005. BUNDLE NO. A-4 8) PAGE NO. 50 & 54 THESE PAGES CONTAINS THE DET AILS OF STAFF ARRANGEMENTS MADE BY THE STES COLLEGE OF ENGINEERIN G FOR ADMISSION PROCESS FOR F.Y. 2003-04. 9) PAGE NO. 58 TO 60- THESE PAGES CONTAIN THE DETA ILS OF EXPENSES INCURRED BY STES. 10. FROM THE ABOVE, IT IS DEMONSTRATED BY THE LD C OUNSEL THAT THE ITEMS AT SL NO 1 TO 5 ABOVE BELONGS TO THE AY 2004- 05 OR THEREAFTER. REFERRING TO THE REST OF THE ITEMS AT SL 6 TO 9 ABO VE, THE COUNSEL MENTIONED THE SAID DOCUMENTS SEIZED ARE EITHER RECO RDED IN THE BOOKS OF ACCOUNT OR INVOLVES CHEQUE TRANSACTIONS. THUS, HE SUMMED UP STATING THAT THE DOCUMENTS IN QUESTION ARE NEITHER THE INCR IMINATING ONES NOR UNACCOUNTED TRANSACTIONS OF THE ASSESSEE AND NOR TH EY RELATE TO THE IMPUGNED FOUR AYS. IN SUCH CIRCUMSTANCES, THE AO NO T ONLY ASSUMED JURISDICTION INVALIDLY BUT ALSO ERRED IN DISTURBING THE SETTLED AND COMPLETED ASSESSMENTS. ACCORDINGLY, AO SHOULD NOT ASSUME JURI SDICTION IN RESPECT OF SUCH AYS IN THE ABSENCE OF ANY INCRIMINATING INFORM ATION OR TRANSACTIONS SPECIFIC TO ANY OF THE IMPUGNED FOUR AYS IE 2000-01 TO 2003-04. THE CONTRARY ARGUMENT FROM THE SIDE OF THE REVENUE IS T HAT THE OVERALL APPROACH IN MATTERS OF CONCEALMENT BY THE GROUP ASS ESSES AND ALL THE DISCOVERIES OF THE SEARCH ON MR NAVALE AND IT CONCE RNS, HAVE TO BE TAKEN INTO ACCOUNT WHILE FORMING THE SATISFACTION WITHIN THE MEANING OF SECTION 153C OF THE ACT. CONSIDERING THE DIVERGENT VIEWS OF THE PARTIES, WE HAVE EXAMINED THE SAID SATISFACTION NOTE VERY CLOSELY AN D FOUND THAT THE IMPUGNED REASONS MENTIONED BY THE AO ARE SILENT IN SO FAR AS ANY AY- SPECIFIC-INCRIMINATING-INFORMATION (ASII) OR OTHERS IE UNACCOUNTED OR UNDISCLOSED OR HIDDEN INFORMATION TO THE REVENUE BY THE ASSESSEE. IN OUR OPINION, THE IMPUGNED SATISFACTION NOTE IS VERY GENE RAL ONE FOR SIX YEARS. IT IS SURPRISING TO NOTE THAT THE AO HAS NARRATED S OME INFORMATION AGAINST THE MR NAVALE HUF, WHICH IS NOT RELEVANT FOR THE PR ESENT ASSESSEE. IN THE PROCESS, THE AO TOTALLY MISSED THE REQUIREMENTS OF THE LAW IE ONLY THE AY WITH THE PENDING ASSESSMENTS AND THE AY WITH THE AY SPECIFIC INCRIMINATING DOCUMENTS/ TRANSACTIONS OR SEIZED ASS ET SHOULD ONLY BE REOPENED UNDER THE PROVISIONS OF THE FIRST PROVISO TO SECTION 153A OF THE ACT AND NOT OTHERWISE. 11. IN THIS REGARD, WE HAVE PERUSED VARIOUS LEGAL PROPOSITIONS. FIRST, WE HAVE PERUSED THE DECISION OF THIS TRIBUNAL IN TH E CASE OF KUMAR COMPANY FOR THE AY 2000-01 (SUPRA) AND PARA 26 OF T HE M/S. KUMAR AND COMPANY VIDE ITA NO. 463/PN/08 FOR THE A.Y 2000-01 AND THE SAME READS AS FOLLOWS:- 25. THUS, WE FIND THAT THE SEIZED DOCUMENTS BELONG TO THE ASSESSEE BY WAY OF LIMITED OWNERSHIP AND THEY ARE NOT DUMB DOCU MENTS AS ADVOCATED BY THE LD COUNSEL FOR THE REASON MENTIONED ABOVE. H OWEVER, THEY ARE NOT FOUND TO BE INCRIMINATING DOCUMENTS FOR THE AY 2000-01. THE DOCUMENT MAY NOT BE A DUMB DOCUMENT AND THEREFORE A SPEAKING ONE, BUT THEY MUST BE THE DOCUMENT WITH PR IMA FACIE INCRIMINATING INFORMATION TOO. SUCH INCRIMINATING N ATURE OF THE SEIZED DOCUMENT IS AN ESSENTIAL FACTOR FOR SWITCHING ON TH E PROCEEDING U/S 153C. IN OTHER WORDS, THE DOCUMENT SEIZED MUST NOT ONLY BE A SPEAKING ONE BUT ALSO BE PRIMA FACIE INCRIMINATING ONE FOR IGNITING THE 15 PROCEEDINGS U/S153C. UNLIKE OTHER AYS, THERE IS NOT HING MADE OUT BY THE AO WHAT IS CALLED INCRIMINATING FOR THE CURRENT AY UNDER CONSIDERATION. WHEN THE IMPUGNED DOCUMENTS MERELY CONTAINS THE NOT INGS OF ENTRIES, WHICH ARE ALREADY FOUND PLACE IN THE BOOKS OF ACCOU NTS OR SUBJECTED TO SCRUTINY OF THE AO IN THE PAST IN REGULAR ASSESSMEN T U/S 143(3) OF THE ACT, SUCH DOCUMENT CANNOT BE SAID TO BE CONTAINING THE I NCRIMINATING INFORMATION. WHAT IS THE POINT IN DISTURBING THE SE TTLED ASSESSMENT WHEN THE REVENUE DOES NOT HAVE INCRIMINATING INFORMATION FOR AN AY AND THE INFORMATION WHAT IS AVAILABLE IS ONLY ROUTINE ONE A ND WHEN THE AO MERELY MAKES AN ADDITION IN THE ASSESSMENT U/S 153C BASED ON CHANGE OF OPINION AND WHEN SUCH ADDITIONS ARE LIKELY TO BE DE LETED IN VIEW OF THE SETTLED NATURE OF THE ISSUES? INCOME TAX PROVISIONS ARE NOT MERELY FOR THE ISSUE OF NOTICE U/S 153C BUT IT IS ESSENTIALLY FOR TAXING THE INCOME OF THE PERSON. WHAT IS POINT IN ISSUING NOTICE U/S 153C ON FLIMSY GROUNDS AND FINALLY TAX NOTHING? SUCH PROCEEDINGS ONLY CREATES AVOIDABLE NUISANCE BOTH TO THE OVER-BURDENED TAXMAN AND THE MUCH HAZZL ED TAXPAYERS. IN THE INSTANT CASE, PROVISIONS OF SECTION 153C ARE IN VOKED MERELY TO APPLY THE PROVISIONS OF SECTION 45(4) IN THIS YEAR, THE I SSUE WHICH WAS ALREADY EXAMINED AND CONCLUDED AS INAPPLICABLE TO THE FACTS OF THE CASE. SUCH ISSUE OF NOTICE IS UNWARRANTED AND SUCH REOPENING O F THE ASSESSMENT FOR THE AY 2000-01 IS UNCALLED FOR. 26. THEREFORE, THE PROCEEDINGS INITIATED U/S 153C IS NOT VALID IN VIEW OF THE DECISION IN THE CASE OF LMJ INTERNATIONAL (S UPRA). UNDER THESE CIRCUMSTANCES, WE ARE OF THE OPINION, THE AO HAS IN VALIDLY ISSUED THE NOTICE U/S 153C FOR THE AY 2000-01 ON THE WRONG PRESUMPTION THAT AO CAN ASSUME JURISDICTIONAL IN RESPECT ALL THE SIX AYS AUTOMATICALLY EVEN WITH OUT ANY INCRIMINATING DOCUM ENTS IN RESPECT OF THE CONCLUDED ISSUES TOO . ACCORDINGLY, THE RELEVANT GROUNDS OF THE ASSESSEE ARE ALLOWED. 12. FROM THE ABOVE, IT IS OUR FINDING THAT THE REA SONS RECORDED BY THE AO AS EXTRACTED ABOVE DO NOT CONTAIN ANYTHING INCRI MINATING FOR THE AYS UPTO 2003-04. IT IS THE SETTLED POSITION OF THE LAW BASED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF LMJ INTERNATIONAL (SUPR A) THAT THE ISSUE OF NOTICE UNDER THE PROVISIONS OF THE FIRST PROVISO TO SECTION 153A(1) OF THE ACT IS NOT AUTOMATIC AND THERE IS NEED FOR AY-SPECI FIC INCRIMINATING INFORMATION (ASII) IN THE POSSESSION OF THE AO TO B E THE FOUNTAIN HEAD FOR SPRINGING SATISFACTION TO HIM THAT THERE EXISTS SOM E INCOME OR ASSET TO BE ASSESSED IN THE HANDS OF ANY OTHER PERSON, WHO ARE REFERRED TO IN SECTION 153C OF THE ACT. REASON FOR THIS KIND OF INTERPRETAT ION WAS ALREADY GIVEN IN PARA 25 AND 26 OF OUR ORDER IN THE CASE OF KUMAR COMPANY FOR THE AY 2000-01. IN THIS REGARD, WE POSED QUESTION TO OURSE LVES IF IT IS FAIR TO REOPEN THE ASSESSMENT WHICH IS ALREADY CONCLUDED WI THOUT ANY REASON OR LOGIC THEREBY ENCROACH ON THE RIGHTS OF THE TAX PAY ERS? SHOULD THE AO BE GIVEN UNFETTERED OR ARBITRARY POWERS TO ISSUE NOTIC E FOR THE SIX AYS SPECIFIED IN THE FIRST PROVISO TO SECTION 153A(1) O F THE ACT WHEN THE IMPUGNED ASSESSMENTS FOR THE SAID SIX AYS ARE OTHERW ISE REACHED FINALITY AFTER DUE PROCESS OF LAW. IN OUR OPINION, THE ANSWE R IS NEGATIVE AND IT IS IN FAVOUR OF THE ASSESSEE. IN ANY CASE, DR HAS NOT BRO UGHT ANYTHING ON RECORD TO DEMONSTRATE THAT THE DECISIONS GIVEN BY T HE TRIBUNAL IN THE CASE OF LMJ INTERNATIONAL (SUPRA) AND M/S KUMAR COMPANY (SUPRA) ARE NOT TO BE FOLLOWED IN THIS CASE. OUR PERUSAL OF ANOTHER OR DER OF THE TRIBUNAL IN THE CASE OF M/S KUMAR COMPANY FOR THE AY 2201 TO 20 03-04 VIDE ITA NO 1020,1250,1021,1251,1022 & 1252/PN/2008, RELIED UPO N BY THE LD DR IS FOUND DISTINGUISHABLE IN SO FAR AS THE EXISTENCE OF THE INCRIMINATING 16 DOCUMENT FOR THE RELEVANT AY IS CONCERNED. WHEREAS, IN THE INSTANT CASE, FIRST OF ALL, THERE IS NO MENTION OF ANY DOCUMENT I N THE SAID REASONS RELATABLE TO THE IMPUGNED FOUR YEARS AND THE INCRIM INATING NATURE OF THE SAME IS OUT OF QUESTION. THEREFORE, RELIANCE OF THE DR ON THE SAID CASE IS MISPLACED. 13. FURTHER, WE HAVE EXAMINED VARIOUS OTHER JUDICI AL PROPOSITIONS MENTIONED BY THE LD COUNSEL AND SOME OF THEM ARE RE PRODUCED AS UNDER. 1) ANIL KUMAR BHATIA & ORS. (2010) 1 ITR (TRIB) 48 4 (DEL) CONCLUSION:- IN RESPECT OF AN ASSESSMENT UNDER S. 153A, WHERE P ROCESSING RETURNS UNDER S. 143(1)(A) STOOD COMPLETED IN RESPECT OF RE TURNS FILED IN DUE COURSE BEFORE SEARCH AND NO MATERIAL IS FOUND IN SEARCH THEREAFTER, NO ADDITION CAN BE MADE. 2) SUNCITY ALLOYS (P) LTD. (2009) 124 TTJ (JD) 67 4 CONCLUSION:- ASSESSMENTS OR REASSESSMENTS MADE PURSUANT TO NOTI CE UNDER S. 153A ARE NOT DE NOVO ASSESSMENT AND THEREF ORE NO NEW CLAIM OF DEDUCTION OR ALLOWANCE CAN BE MADE BY ASSESSEE WHER E ADMITTEDLY THE REGULAR ASSESSMENTS ARE SHOWN AS COMPLETED ASSESSME NTS ON THE DATE OF INITIATION OF ACTION UNDER S. 132. 3) MEGHMANI ORGANICS LTD. (2010) 129 TTJ (AHD) 255 CONCLUSION:- RECORD MAINTAINED BY A PERSON FOR HIS OWN PURPOSE THOUGH REFERABLE TO THE ASSESSEE CANNOT BE SAID TO BE BELONGING TO THE ASSESSEE WITHIN THE MEANING OF S. 153C. FURTHER, WH ERE NONE OF THE ASSESSMENTS ARE PENDING ON THE DATE OF ACTION UNDER S. 153C, SUCH ASSESSMENTS DO NOT ABATE . 4) LMJ INTERNATIONAL LTD. (2008) 119 TTJ (KOL) 214 CONCLUSION:- WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELATING TO ANY ASSESSMENT YEARS, THE ASS ESSMENTS FOR SUCH YEARS CANNOT BE DISTRIBUTED; ITEMS OF REGULAR ASSESSMENT CANNOT BE ADDED BACK IN THE PROCEEDINGS UNDER S. 153C WHEN NO INCRIMINATING DOCUMENTS WERE FOUND IN RESPECT OF THE DISALLOWED A MOUNTS IN THE SEARCH PROCEEDINGS. 5) KAILASH AUTO FINANCE LTD. (2009) 32 SOT 80 (LUCK ) CONCLUSION:- A NOTICE UNDER S. 148(1) CAN BE ISSUED EVEN WHERE N OTICE UNDER S. 143(2) HAS BEEN PENDING AND NOT CLOSED. BY PROCESSING THE RETURN AND BY ISSUING ACKNOWLEDGMENT AS TOKEN OF AC CEPTING THE RETURN, THE PROCEEDINGS INITIATED BY FILING THE RETURN ARE TERMINATED AND NO PROCEEDINGS, THEREFORE, REMAIN PENDING. 6) R.M.L. MEHROTRA (2010) 320 ITR 403 CONCLUSION:- UNDISCLOSED INCOME OF THE BLOCK PERIOD HAS TO BE DETERMINED ON THE BASIS OF EVIDENCE FOUND AS A RESU LT OF SEARCH OR REQUISITION OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS AND SUCH OTHER MATERIALS OR INFORMATION AS ARE AVAILABLE WITH THE A.O AND RELATABLE TO SUCH EVIDENCE; AO CANNOT COMPUTE THE INCOME ON THE BASIS OF BEST JUDGEMENT. 17 14. FROM THE ABOVE, IT IS EVIDENT THAT THE WHERE N OTHING AY AND ASSESSEE SPECIFIC INCRIMINATING MONEY, JEWELLERY O R OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS, THE ASS ESSMENTS FOR ASSESSEE YEARS CANNOT BE DISTRIBUTED. FURTHER, THE CONCLUDED ASSESSMENTS SHOULD NOT BE DISTURBED MERELY FOR MAKING ROUTINE ADDITION S, WHICH COULD HAVE BEEN OTHERWISE DONE IN THE REGULAR ASSESSMENT AND O F COURSE, THE PENDING ASSESSMENTS FALL UNDER EXCEPTIONS. AS STAT ED BY THE LD COUNSEL POINT NO 9 OF HIS NOTE REPRODUCED ABOVE, NOTHING I S SEIZED PERTAINING TO A.Y 2000-01 TO 2003-04 OBVIOUSLY THERE IS NO QUESTI ON OF RECORDING SATISFACTION NOTE. ON THIS REASONING ITSELF, WE FIN D THAT THE ASSESSEE HAS TO SUCCEED. THEREFORE, WE DO NOT EXAMINE THE OTHER ARG UMENTS OF THE COUNSEL. OTHERWISE, THE COUNSEL ARGUED THAT THE REO PENING OF THE ASSESSMENT FOR THE AY 2000-01 TO 2001-02 IS IMPERMI SSIBLE IN VIEW OF THE JUDGMENT OF ALLAHABAD BENCH IN THE CASE OF VIJAY VI MAWAL VS. ACIT 124 TTJ 508. FURTHER, HE ALSO ARGUED THAT THE ASSESSMEN T OF A.Y 2003-04 WAS ACTUALLY COMPLETED U/S. 143(3) ON 30/03/2006 IE PRI OR TO RECEIPT OF THE IMPUGNED DOCUMENTS BY THE ASSESSING OFFICER ON 18/0 4/2007, THIS ASSESSMENT WAS NOT PENDING. ATTENDING TO THESE ARGU MENTS OF THE COUNSEL IS SUPERFLUOUS AND MERELY AN ACADEMIC EXERC ISE AS WE HAVE UPHELD THE APPLICABILITY OF THE DECISION OF THE TRI BUNAL IN THE CASE OF LMJ INTERNATIONAL LTD (SUPRA) FOR THE PROPOSITION THAT THE WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELA TING TO ANY ASSESSMENT YEARS, THE ASSESSMENTS FOR SUCH YEARS CANNOT BE DIS TRIBUTED AND OTHER LOCAL DECISION CITED ABOVE. ACCORDINGLY, THE ADDIT IONAL GROUND RAISED BY THE ASSESSEE FOR ALL THE FOUR APPEALS UNDER CONSIDE RATION ARE ALLOWED AND IN FAVOUR OF THE ASSESSEE. 15. AS THE ADDITIONAL GROUND FOR ALL THE FOUR YEARS ARE ALLOWED IN FAVOUR OF THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION T HE ADJUDICATION OF THE GROUNDS RELATING TO THE MERITS OF THE ADDITIONS IS MERELY AN ACADEMIC EXERCISE. THEREFORE, THE RELEVANT GROUNDS IN ALL TH E FOUR APPEALS ARE DISMISSED AS ACADEMIC. 16. FROM THE ABOVE, IT IS THE DECISION OF THIS BENCH OF THE TRIBUNAL, TAKEN RELYING ON THE DECISIONS OF THE OTHER BENCHES OF THE TRIBUNAL IE IN THE CASE OF LMJ INTERNATIONAL LTD (SUPRA) THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELATING TO ANY ASSESSMENT YEAR, T HE ASSESSMENTS FOR SUCH YEARS CANNOT BE DISTRIBUTED . THUS, THE ASSESSMENTS MADE BY THE AO U/S 153C OF THE ACT WITHOUT THE EXISTENCE OF AY-SPECIFIC INCRIMI NATING DOCUMENTS ARE INVALID . 17. APPLICATION OF THE ABOVE SCOPE TO THE FACTS OF THIS CASE: NOW WE SHALL TAKE UP THE CONTENTS OF THE SATISFACTION NOTE AND EXAMINE IF THERE ARE ANY DOCUMENTS SEIZED INVOLVING THE ASSESSEE AND IF THEY ARE INCRIMINATING WITH REFERENCE EACH OF THE SIX AYS OF THE ASSESSEE. 18 SATISFACTION NOTE FOR ISSUE OF NOTICE U/S 153C OF THE ACT THE SEARCH ACTION U/S 132 OF THE IT ACT WAS CARRIED IN THE CASE OF SHRI RAMCHANDRA DADA SHINDE, ON 22.7.2005. THE ASSESSEE W AS WORKING AS ACCOUNTS OFFICER IN THE BHARATI VIDYAPEETH GROUP OF TRUSTS,. DURING THE SEARCH ACTION THE OFFICE CABIN OF THE ASSESSEE SITUATED AT BHARATI VIDYA BHAVAN, NEAR ALK A TALKIES, PUNE-30 WAS SEARCHED ALONG WITH HIS RESIDENTIAL PREMISES. DURING THE SEARCH ACTION BOOKS OF ACCOUNTS, DOCUMENTS AND CASH WERE FOUND AND SEIZED. TOTAL 3 BUNDLES OF LOOSE PAPER WERE SEIZED V IDE ANNEXURE A-1 OF PANCHNAMA DT 21.07.2005 AND 18 LOOSE PAPER BUNDLES WERE SEIZED V IDE ANNEXURE A-1 OF THE PANCHNAMA DT. 22.7.2005. THE DETAILS OF SEIZED DOCUMENTS AS PER ANNEXURE A OF PANCHNAMA DATED 22.7.2005, BELONGING TO THE ASSESSEE TRUST ARE AS FOLLO WS 1. PANCHNAMA DT. 22.7.2005 BUNDLE NO. 2 :- PAGE NO. 1 TO 4 BILLS OF M/S LOKMANY A AUTO CENTER IN THE NAME OF BHARATI VIDYAPEETH. BUNDLE A-2 :- PAGE NO. 17 EXPENDITURE VOUCHER OF B HARATI VIDYAPEETH. AN AMOUNT OF RS 1500/- GIVEN AS ADVANCE TO SHRI V.G. DUB AL FOR OFFICE WORK. BUNDLE A-2:- PAGE NO. 16 EXPENDITURE VOUCHER. AN A MOUNT OF RS 5500/- GIVEN TO SHRI HARALE. BUNDLE A-2:- PAGE NO. 18 EXPENDITURE VOUCHER. AN A MOUNT OF RS 10,000/- GIVEN TO SOMEONE, NAME NOT IDENTIFIED. BUNDLE A-2:- PAGE NO. 19 EXPENDITURE VOUCHER. AN A MOUNT OF RS 25,000/- GIVEN TO SAME UNIDENTIFIED PERSON. BUNDLE A-2:- PAGE NO. 21 TO22 DETAILS OF PAYMEN5S M ADE TO SHRI RAJIV SATHE, ARCHITECTURE, PAYMENT MADE BY BHARATI VIDYAPEETH, PUN E. BUNDLE A-2: PAGE NO. 23 TO 25 DETAILS OF PAYMENTS O F RS 25,000/- MADE BY BHARATI VIDYAPEETH TO SMT APARNA DESHPANDE. BUNDLE A-2:- PAGE NO. 42 TO 46 DETAILS OF PAYMENTS MADE TO M/S S.K. GRANITE BY BHARATI VIDYAPEETH, PUNE. BUNDLE A-2:- PAGE NO. 93 DETAILS OF PAYMENT RS 3,00 0/- MADE TO SHRI RAJENDRA MOHITE BY BHARATI VIDYAPEETH, PUNE BUNDLE NO A-2 PAGE NO 94 TO 98:- BILLS OF DIESEL EXPENSE S OF BHARATI VIDYAPEETH, PUNE BUNDLE NO A-2 PAGE NO 101 TO 106 :- EXPENDITURE DETA ILS OF BHARATI VIDYAPEETH, PUNE BUNDLE NO. A-3:- PAGE NO 35 TO 48 CAR EXPENSES BILLS OF BHARATI VIDYAPEETH, PUNE BUNDLE NO. A-4:- PAGES 11 TO12 & 14 TO 18 COUNTER FOILS OF CASH DEPOSITS IN BHARATI SAH. BANK LTD. TOTAL OF RS 21.20 LAKHS. BUNDLE NO.A-4:-PAGE NO. 20 TO 25 DETAILS OF LABOUR P AYMENT MADE TO M/S VALMIKI ENTERPRISES OF RS 1,06,400/- BY BHARATI VIDYAPEET H. BUNDLE NO. A-4:- PAGE NO 26 DETAILS OF PAYMENT OF R S 10,000/- TO SHRI AMRALE ROHIDAS DYANOBA AS A ADVANCE FOR OFFICE WORK BY BHARA TI VIDYAPEETH. BUNDLE NO A-8 :- PAGE NO. 6 TO 27 DETAILS OF PAYMEN TS MADE TO SHRI D.G. KANASE OF RS 22,000/-. BUNDLE NO. A-8:- PAGE NO 28 TO 30 DETAILS OF PAYMEN TS MADE TO SHRI RAJIV SATHE OF RS 1,25,000/-. BUNDLE NO. A-8:- PAGE NO. 31 TO 32 - DETAILS OF EXPEN DITURE INCURRED BY B.V MEDICAL COLLEGE (B.V.M.C), SANGALI,. TOTAL RS 6,34,479/- PAGE NO. 33 TO 37 LIST OF TEACHING STAFF OF B.V.M. C. SANGALI. BUNDLE NO. A-9:- PAGE NO. 45 COUNTER FOIL OF CASH DEPOSIT IN BHARATI SAHAKARI BANK IN POONA COLLEGE OF PHARMACY BUILDING FUND A/C NO. 6 9557 RS 1,75,000/-. BUNDLE NO. A-9:- PAGE NO. 50 EXPENDITURE VOUCHER OF BHARATI VIDYAPEETH TRUST. BUNDLE NO. 15:- THIS IS A LONG BOOK MAINTAINED BY ASSESSEE TRUST AS A INWARD REGISTER MAINTAINED FOR APPLICATIONS RECEIVE D UNDER MANAGEMENT QUOTA FOR ADMISSION IN MDS COURSE. 19 BUNDLE NO. 16 THIS IS LONG BOOK MAINTAINED BY ASSESSEE TRUST AS A INWARD REGISTER FOR RECEIVING APPLICATIONS UNDER MANAGEMENT QUOT A FOR ADMISSION IN MEDICAL, DENTAL, BHMS AND BAMS COURSE. THE PROVISIONS OF SECTION 153C OF THE IT ACT 1961 REA DS AS .WHERE THE AO IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUA BLE ARTICLE OR THING OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONGS TO PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A THEN .AO SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER NOTICE AND ASSESSEES OR R EASSESSES INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153 A. SINCE IN THIS CASE, THE DOCUMENTS AND REGISTERS BELONGING TO ASSESSEE TRUST AN D QUITE A FEW OF THEM WERE INC4IMINATING RELATING TO DONATIONS FOR ADMISSIONS HAVE BEEN SEIZED, I AM SATISFIED THAT NOTICE U/S 153C OF THE I.T. ACT SHOULD BE ISSUED. FURTHER SHRI R.D SHINDE IN HIS STATEMENT RECORDED U/S 132(4) ON 22.7.2005 STATED THAT, THE AMOUNT RECEIVED OF RS 2,00,00,000/- ON ACCOUNT OF CONSULTANCY FROM THE STUDENTS HAVE BEEN DEPOSITED IN THE PAST TO THE B UILDING UND AND EQUIPMENT FUND OF THE VARIOUS TRUSTS OF THE BHARATI VIDYAPEETH GROUP. IN THE CASE OF ASSESSEE TRUST, THERE IS CREDIT IN TRU ST FUND A/C AND DEVELOPMENT FUND A/C AS FOLLOWS- F.Y TRUST FUND OTHER EARMARKED FUNDS ADDITIONTO FUND OTHER THAN PROFIT OF TRUST 99-00 33316876 564254452 19874284+ 76969244 00-01 35490165 682339763 118035312 01-02 38514460 824900544 142560781 02-03 40544516 1004780076 179879532 03-04 40544516 1106890203 102110127 EXAMINATION OF SEIZED BOOKS OF ACCOUNTS OF THE ASSESS EE TRUST SHOWS THAT THE AMOUNT CREDITED IN VARIOUS DATES IN THE LEDGER ACCOUNT OF DEV FUND AND TRUST FUND CLAIMED TO BE RECEIPTS TOWARDS THE CORPUS OF THE TRUST S HAS BEEN RECEIVED ENTIRELY IN CASH, AND THE DONORS HAS NOT BEEN MENTIONED IN THE BO OKS OF ACCOUNT IN VIEW OF THE ABOVE FACTS, I AM SATISFIED THAT, THE RECEIPTS ON ACCO UNT OF DEV FUND AND TRUST FUND CREDITED IN THE BOOKS ARE NOT GENUINE. SINCE THE RECEIPT CREDITED IN THE BOOKS OF A/C NOT FROM THE GENUINE SOURCE FOR THE CHARITABLE PURPOSE OF THE TRUST, APPARENTLY THE INCOME OF ASSESSEE TRUSTS IS NOT LIABLE FOR EXEMPTION U/S 11, 12, 13 OF THE IT ACT 1961. THEREFORE NOTICES U/S 153C IS HEREBY ISSUED FOR THE F OLLOWING A. YRS: A.Y 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 DATE: 30.3.2007 ASSESSING OFFICER 18. THUS, THERE ARE 23 DIFFERENT DOCUMENTS SEIZED BY T HE REVENUE AND ARE FOUND RELEVANT TO THE ASSESSEE. AO RELIED ON THE SAID DOCUMENTS FOR GETTING SATISFIED FOR INVOKING THE PROVISIONS OF SECTION 153C OF THE ACT IN RESPECT OF ALL THE SIX AYS. WE HAVE EXAMINED THE CONTENTS OF PAGES 5 AND 6 OF THE PAPER BOOK FILED BEFORE US AS THESE TABLES EXPLAINED THE CONTEN TS OF THE SAID 23 ITEMS OF THE DOCUMENTS VIS A VIS THE RELEVANT AYS. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE PROCEED TO SCAN THE PAGES OF THE PAPER BOOKS AND I MPORT THE SAME AS UNDER. 20 21 19. DURING THE PROCEEDINGS BEFORE, LD COUNSEL MENTIONE D THAT THE ABOVE TABLES REFLECT THE DOCUMENTS AT SL NO 7,8 & 10 OF TH E TABLE DO NOT REFLECT ANY DATES. IN THIS REGARD, LD COUNSEL MENTIONED THAT THES E THREE SETS OF DOCUMENTS RELATE TO THE VOUCHERS FOR EXPENSES/ADVANCES OF THE TRU ST AND IN THE ABSENCE OF THE SPECIFIC DATES, THE SAME MUST BE DEEMED RELATING TO THE CURRENT AY IE 2007- 08 IN VIEW OF THE SETTLED PROPOSITIONS IN THIS REGARD. REFERRING TO THE ITEMS AT SL NO 22 IE THE INWARD REGISTER, LD COUNSEL ARGUED STATIN G THAT THE SAME CONTAINS LIST OF THE NAMES OF THE APPLICANTS FOR ADMISSION IN TO MDS UNDER MANAGEMENT QUOTA OF THE PG SEATS AND THE SAME NAMES ARE ACCOUNT ED AND IT DOES NOT CONTAIN ANY FINANCIAL TRANSACTIONS. OTHERWISE, REST OF THE ITEMS OF THE DOCUMENTS RELATE TO THE AY 2007-08, WHICH IS NOT UNDER CONSIDERA TION OF THIS COMPOSITE ORDER. WE HAVE CONSIDERED THE EXPLANATIONS OF THE SRI P ATHAK AND UNDERTOOK THE 22 ITEM-WISE EXERCISE OF THE ITEMS PROVIDED BEFORE US. ON PERUSAL OF THE SAME, WE FIND THE EXPLANATION OF LD COUNSEL IS IN ORDER AND T HERE IS NOTHING TO REJECT THE SAME. 20. CONCLUSION: FROM THE ABOVE IT IS CLEAR THAT THE AO ISSUED NOTICES U/S 153C SIMPLY RELYING ON THE CONTENTS OF SECTION 153A (1)(B) OF THE ACT AND ALSO ITS FIRST PROVISO IGNORING VARIOUS SETTLED LEGAL PROPOSITION S IE THE CONCLUDED ASSESSMENTS, WHICH FALL IN THE BUNCH OF SIX AY, SHO ULD NOT BE DISTURBED UNLESS THERE EXISTS INCRIMINATING MATERIAL RELEVANT FOR EACH OF THE SAID AYS OR CONCLUDED ASSESSMENTS AND IT SHOULD NOT BE A CASE OF DUMB DOC UMENTS. THE SAME IS CONTRARY TO THE STAND OF THE REVENUE THAT THE EXPRESS P ROVISIONS ARE CLEAR ON THE PROPOSITION THAT THE AO IS EMPOWERED UNDER THE STATUTE TO ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATEL Y PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SE ARCH IS CONDUCTED .. (FIRST PROVISO). THE DECISION IN THE CASE OF LMJ INTERNATION AL LTD. (2008) 119 TTJ (KOL) 214 IS UNDISTURBED AS ON DATE AND IT IS RELEVANT FOR THE PROPOSITION THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEA RCH RELATING TO ANY ASSESSMENT YEARS, THE ASSESSMENTS FOR SUCH YEARS CANNOT BE DIS TRIBUTED; ITEMS OF REGULAR ASSESSMENT CANNOT BE ADDED BACK IN THE PROCEEDINGS UNDER S. 153C WHEN NO INCRIMINATING DOCUMENTS WERE FOUND IN RESPECT OF TH E DISALLOWED AMOUNTS IN THE SEARCH PROCEEDINGS. 21. IN THE PRESENT CASE AND IN THE PRESENT APPEALS, T HERE ARE SIX AYS UNDER CONSIDERATION INVOLVING THE CROSS APPEALS. BASED ON T HE EXISTENCE OF THE SEIZED DOCUMENTS, THESE SIX AYS CAN CATEGORIZED INTO TWO CA TEGORIES. (I) THE AYS WITHOUT SEIZURE OF ANY DOCUMENTS OR ANY OTHER SEIZURES AS REFERRED TO IN THE PROVISIONS OF SECTION 153C OF THE ACT; AND (II) THE AY WITH THE SEIZURE OF SOME DOCUMENTS AS REFERRED TO IN THE PROVISIONS OF SECTION 1 53C OF THE ACT. 22. AYS 2000-01 TO 2004-05: IN CONNECTION WITH THE AYS AT SL NO (I) ABOVE IE AYS 2000-01 TO 2004-05, ADMITTEDLY, THERE I S NO SEIZURE OF THE DOCUMENTS AS EVIDENT FROM THE SATISFACTION NOTE AND THE TABLES EXPLAINED BY THE ASSESSEE. CONSIDERING THE ABOVE SCOPE OF THE PROVISIO NS AND LEGAL PROPOSITIONS ALREADY ADOPTED BY THIS BENCH IN THE CASE OF SINHGAD TECHNICAL EDUCATION SOCIETY (SUPRA), WE ARE OF THE OPINION THAT THE ISSUANCE OF N OTICES U/S 153C FOR THE AYS 2000-01 TO 2004-05, WHERE THERE ARE NO SEIZED DOCUMENT S, IS INVALID . 23 23. AY 2005-06: IN CONNECTION WITH THE AYS AT SL NO (II) ABOVE IE A YS 2005- 06, ADMITTEDLY, THERE IS SOME SEIZURE OF THE DOCUMENT S AS EVIDENT FROM THE SATISFACTION NOTE AND THE TABLES EXPLAINED BY THE A SSESSEE. OUT OF THE 23 DIFFERENT ITEMS OF DOCUMENTS SEIZED AS EVIDENT FROM T HE SCANNED TABLES IMPORTED IN TO THIS ORDER, ALL EXCEPT THE ITEM AT SL NO 22 RELA TING TO THE INWARD REGISTER FOR APPLICATIONS RECEIVED UNDER THE MANAGEMENT QUOTA FO R ADMISSION IN MDS COURSE RELATE TO THE YEAR 2004-05 (AY 2005-06) . OTHERWISE, REST OF THE 22 ITEMS OF SEIZURE DOCUMENTS RELATE TO THE CURRENT AY IE 2006-07, WHICH IS NOT UNDER CONSIDERATION OF THIS ORDER. THUS, THE NOTICE ISSUED U /S 153C OF THE ACT FOR THE AY 2005-06 WHERE THERE IS SEIZURE OF ONLY AN INWARD REG ISTER FOR APPLICATIONS RECEIVED UNDER THE MANAGEMENT QUOTA FOR ADMISSION IN M DS COURSE RELATE TO THE AY 2005-06 AND THERE ARE NO FINANCIAL TRANSACTIONS O F ANY KIND, IN OUR OPINION, IS INVALID . WE ARE CONVINCED THAT THE SAID LEDGER CONTAINS THE MERE NAMES OF THE MDS APPLICANTS FOR ADMISSION UNDER MANAGEMENT QUO TA AND THERE IS NO REFERENCE TO ANY FINANCIAL TRANSACTIONS, WHATSOEVER. AS SUCH THESE NAMES ARE ALREADY BORNE IN THE LIST OF STUDENTS. IT IS EVIDENT THAT THE SAID LEDGER DOES NOT CONTAIN ANY WHISPERS ABOUT THE LIKELY UNDISCLOSED IN COME FOR THE YEARS UNDER CONSIDERATION. IT IS SETTLED ISSUE THAT THE NOTICE U /S 153C OF THE ACT IS NOT VALID WHEN THE SEIZED DOCUMENTS DO NOT INDICATE ANY UNDIS CLOSED INCOME OF THE ASSESSEE UNDER CONSIDERATION AND IT SO HELD BY THE HO NBLE HIGH COURT OF GUJARAT. FURTHER, THE REASONING GIVEN BY US IN THE ORDER IN THE CASE OF SINHGAD TECHNICAL EDUCATION SOCIETY (SUPRA) APPLY TO THE ISS UE IN THESE APPEALS MUTATIS MUTANDIS. IN OTHER WORDS, THE VIEWS APPROVED BY THIS BENCH IN T HE CASE OF SINHGAD TECHNICAL EDUCATION SOCIETY (SUPRA) AND KUMAR COMPANY (SUPRA) ARE AFFIRMED BY THE SAID JUDGMENT OF THE GUJARAT HIGH CO URT IN THE CASE OF VIJAYBHAI N CHANDANI 231CTR 474 (GUJ) AND MERE APPEARANCE OF NAMES DOES NOT MEAN ANYTHING AS SECTION 153C OF THE ACT IS INTENDED FOR TAXING THE UNDISCLOSED INCOME OF THE THIRD PARTY BASED ON THE MA TERIAL/OTHERS SEIZED DURING THE SEARCH ACTION. AS SUCH, ONLY THE UNACCOUNTED AND INCRIMINATING MATERIAL OR OTHERS LISTED IN THE SAID SECTION ARE ONLY SEIZED DURI NG THE SEARCH AND THE ACCOUNTED DOCUMENTS SHOULD NOT BE SEIZED. SEIZURE OF THE DOCUMENTS IS AIMED AT THE UNEARTHING OF THE UNACCOUNTED INCOME OF THE A SSESSEE ASSESSABLE U/S 153A OR THE OTHER THIRD PARTIES SUBJECTED ASSESSMENT U /S 153C OF THE ACT. WHEN THE DOCUMENTS DO NOT INDICATE ANY UNDISCLOSED INCOM E, THE LEDGER IN THE INSTANT CASE, WHAT IS THE RELEVANCE OF SUCH DOCUMENT? SUCH L EDGER CONSTITUTES MERELY AN ACCOUNTED ONE WITH NO FINANCIAL IMPLICATIONS. THUS, THE DOCUMENTS, THE LEDGER IN THE INSTANT CASE RELEVANT FOR THE AY 2005 -06, WITH NO FINANCIAL IMPLICATIONS CAN NEITHER BE CONSIDERED IN CRIMINATING NOR BE 24 CONSIDERED CAPABLE OF SPRINGING SATISFACTION TO ANY AO THAT THERE IS SCOPE OF UNDISCLOSED INCOME IN RESPECT OF THE THIRD PARTY ASSESSABLE U/S 153C OF THE ACT. ACCORDINGLY, THE LEGAL GROUNDS RAISED IN ALL THESE APPEALS OF THE ASSESSEE RELATING TO THE VALIDITY OF THE NOTICE U/S 153C OF THE ACT ARE ALLOWED IN FAVOUR OF THE ASSESSEE IN RESPECT OF ALL THE AYS UNDER CONSIDERATION. FURTHER, WE ARE OF THE CONSIDERED OPINION THAT THE ADJUDICATIO N OF THE OTHER GROUNDS RELATING TO THE OTHER LEGAL AND MERIT ORIENTED ISSUES IS MERELY AN ACADEMIC EXERCISE. THEREFORE, THE RELEVANT GROUNDS IN ALL THE FOU R APPEALS ARE DISMISSED AS ACADEMIC. 24. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE ALLOWED . SIX REVENUES APPEALS 25. FURTHER, REGARDING THE APPEALS BY THE REVENUE, WE FI ND THEY HAVE TO BE DISMISSED AS WE HAVE HELD THAT THE AO INVALIDLY ASS UMED JURISDICTION U/S 153C OF THE ACT AND CONSEQUENTLY RELIEF GRANTED TO THE ASSESS EE ON THE ISSUE OF THE VALIDITY OF THE ISSUANCE OF NOTICES U/S 153C OF THE ACT. THUS, ALL THE GROUNDS OF THE REVENUE IN RESPECT OF THE SAID AYS UNDER CONSIDERAT ION HAVE TO BE DISMISSED A MERE AN ACADEMIC EXERCISE. 26. IN THE RESULT THE APPEALS OF THE REVENUE ARE DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON 28 TH APRIL, 2011 SD/- SD/- (I.C. SUDHIR) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT ME MBER PUNE DATED THE 28 TH APRIL, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-IV, PUNE 4. THE CIT. CEN, , PUNE 5. THE D.R. ITAT B BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL 25 PUNE