Smt. Jyotsna Desai, Kolkata V. ACIT, Circle - 32, Kolkata, Kolkata

ITSSA 114/KOL/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1179 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 10-10-2011
• Court: TRIBUNAL
• Department Lawyers: DEBASISH BANERJEE JCITLD
• Assessee Lawyers: D S DAMBLE FCA LD
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Principle of natural justice; Block assessment; Documents seized
• Section: 143(3); 153A; 132; 15

Judgement Text

IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 1 IN THE INCME TAX APPELLATE TRIBUNAL, A BENCH, KO LKATA BEFORE : SHRI N.V. VASUDEVAN, JUDICIAL MEMBER, AND SHRI SHRI M. BALAGANESH, ACCOUNTANT MEMBER IT(SS) A NOS. 114 & 115/KOL/2011 A.YS 2002-03 & 2005-06 SMT. JYOTSNA DESAI VS. A.C.I.T CIR-32, KOLKATA ( APPELLANT ) ( RESPONDENT ) IT(SS) A NOS. 116 TO 119/KOL/2011 A.YS 2003-04 TO 2005-06 & 2008-09 CHANDRAVADAN DESAI VS. A.C.I.T CIR-32, KOLKATA ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : SHRI D. S DAMBLE, FCA, LD.AR FOR THE RESPONDENT: SHRI DEBASIS H BANERJEE, JCIT/ LD.DR DATE OF HEARING: 14-10-2015 DATE OF PRONOUNCEMENT: 6-11 -2 015 ORDER SHRI M.BALAGANESH, AM THESE APPEALS OF THE ASSESSEE ARISE OUT OF THE OR DERS OF THE LEARNED CIT(A)-XIX, KOLKATA IN APPEAL NO.159/CIT(A)-XIX/A CIT. CIR-32/KOL/10-11 DATED 26/07/2011 FOR THE ASST YEAR 2002-03 & APPEAL NO.161/CIT(A)- XIX/ACIT, CIR-32/KOL/10-11 DATED 27/07/2011 FOR TH E ASST YEAR 2005-06 IN THE HANDS OF SMT.JYOTSNA DESAI ; AND IN APPEAL NO. 157/CIT(A)-XIX/ACIT, CIR-32/KOL/10-11 DATED 28/07/2011 FOR THE ASST YEAR 2003-04, APPEAL NO.156/CIT(A)-XIX/ACIT, CIR-32/KOL/10-11 DATED 28/ 07/2011 FOR THE ASST YEAR 2004-05, APPEAL NO. 155/CIT(A)-XIX/ACIT, CIR-3 2/KOL/10-11 DATED 28/07/2011 FOR THE ASST YEAR 2005-06 & APPEAL NO. 152/CIT(A)-XIX/ACIT, IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 2 CIR-32/KOL/10-11 DATED 28/07/2011 FOR THE ASST YE AR 2008-09 IN THE HANDS OF SRI CHANDRAVADAN DESAI PASSED AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LEARNED AO U/S 143(3) READ WITH SECTION 153C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. SHRI.D.S.DAMLE, FCA, THE LEARNED AR ARGUED ON B EHALF OF THE ASSESSEE AND SHRI.DEBASHISH BANERJEE, JCIT, THE LEARNED DR A RGUED ON BEHALF OF THE REVENUE. 3. THE ISSUES INVOLVED ALL THESE APPEALS ARE IDEN TICAL IN NATURE AND HENCE THEY ARE TAKEN UP TOGETHER AND DISPOSED OFF BY A C OMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 4. THE ASSESSES HAVE ALSO RAISED ADDITIONAL GROUN DS OF APPEAL BEFORE US FOR ALL THE AFORESAID ASSESSMENT YEARS UNDER APPEAL. WE FIND THAT THE SAME GO INTO THE ROOT OF THE MATTER AND THE FACTS IN RESPECT OF THE SAME ARE ALREADY AVAILABLE IN THE FILE OF THE LOWER AUTHORITIES AND HENCE IN THE LIGHT OF THE DECISION RENDERED BY THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION LTD REPORTED IN 229 ITR 383 (SC) , THE SAME ARE HEREBY ADMITTED FOR THE PURPOSE OF ADJUDICATION. 5. THE PRIMARY ISSUE RAISED IN ALL THESE APPEALS O F THE ASSESSEE IS THAT WHETHER THE SEARCH ASSESSMENT FRAMED IN THE HANDS O F THE ASSESSES U/S 153C OF THE ACT WOULD BE SUSTAINABLE IN LAW IN THE FACTS AN D CIRCUMSTANCES OF THE CASE. THE ASSESSES HAVE RAISED THE FOLLOWING COMMON ADDIT IONAL GROUNDS OF APPEAL FOR ALL THE ASSESSMENT YEARS UNDER APPEAL:- IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 3 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) OUGHT TO HAVE CANCELLED THE ASSESSMENT U /S. 153C SINCE THE CONDITIONS PRECEDENT FOR INVOKING THE SAID PROV ISIONS WERE NOT SATISFIED AND IN THAT VIEW OF THE MATTER THE ASSESS MENT ORDER OUGHT TO HAVE BEEN HELD TO BE AB INTIO VOID. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) OUGHT TO HAVE HELD THAT THE PROCEEDING S U/S. 153C WERE WRONGLY INITIATED SINCE NO DOCUMENTS, BOOKS OF ACCO UNT, VALUABLE OR ARTICLE BELONGING TO THE ASSESSEE WERE FOUND AND S EIZED IN THE COURSE OF SEARCH AND IN THAT VIEW OF THE MATTER THE ORDER U/S. 153C OUGHT TO HAVE BEEN CANCELLED. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) OUGHT TO HAVE HELD THE PROCEEDINGS U/S. 153C TO BE BAD IN LAW BECAUSE THE ASSESSING OFFICER OF THE PERSON SEARCHED AT MUMBAI HAD NEVER RECORDED ANY SATISFACTION TO THE EFFECT THAT ANY OF THE VALUABLES, ARTICLES, DOCUMENTS OR BOOKS BELO NGING TO THE APPELLANT WERE FOUND IN THE COURSE OF SEARCH CONDUC TION U/S. 132 OF THE ACT AND IN ABSENCE OF SUCH MANDATORY SATISFACTI ON BY THE AO OF THE PERSON SEARCHED, PROCEEDINGS U/S. 153C IN THE A PPELLANTS CASE WERE AB INTIO VOID. 4. FOR THAT THE APPELLANT CRAVES LEAVE TO FILE ADDI TIONAL GROUNDS AND/ OR AMEND OR ALTER THE GROUNDS ALREADY TAKEN EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 6. THE BRIEF FACTS RECORDED BY THE LEARNED AO ARE THAT THERE WAS A SEARCH OPERATION CONDUCTED U/S 132 OF THE ACT IN BHARAT SH AH GROUP, 55, GAMDEVI 2 ND FLOOR, PANCHSHIL PLAZA, MUMBAI ON 15.3.2008, WHERE IN , INTER ALIA, A DIARY WAS SEIZED . THE SAID DIARY ADMITTEDLY CONTAINED SYSTE MATIC RECORDS RELATED TO ACTUAL SALE TRANSACTIONS IN LEGEND PROJECT PROMOTED BY LAY ER EXPORTS PVT LTD (ONE OF THE GROUP COMPANY OF BHARAT SHAH GROUP) SITUATED IN WALKESHWAR, MALABAR HILL, MUMBAI 400006, CONTAINING DETAILS OF FLAT N UMBERS, FLAT SIZE (TOTAL SOLD AREA) , RATE PER SQ.FT, TOTAL CONSIDERATION BIFURCA TED IN CASH AND CHEQUES, CASH TO BE PAID , CHEQUES TO BE PAID, DETAILS OF RENEGOTIAT ION, DETAILS OF ACTUAL CASH PAYMENT, DETAILS OF ACTUAL CHEQUE PAYMENTS, ETC. IN THE ENTRIES IN THE SAID IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 4 RECORDS, SH WAS FOUND TO REPRESENT CASH PORTION , I.E ON MONEY OR OUT OF BOOKS PORTION AND Q AND CHQ WERE FOUND TO REPRESENT C HEQUE PAYMENTS. IN THIS REGARD, ON PAGE NO. 8 OF THE SEIZED DOCUMENT OF LAY ER EXPORTS PVT LTD, THERE IS RECORDING OF TRANSACTION RELATED TO SALE OF FLATS B Y LAYER EXPORTS PVT LTD TO SRI CHANDRAVADAN DESAI AND SMT.JYOTSNA DESAI (THE ASSES SES HEREIN). ACCORDING TO THE ASSESSING OFFICER OF LAYER EXPORTS PVT LTD SRI CHANDRAVADAN DESAI AND SMT.JYOTSNA DESAI (THE ASSESSES HEREIN) H AD PAID ON MONEY OF RS. 8,01,39,192/- TO THE SELLER OF THE PROPERTY. ACCORD INGLY HE PROCEEDED TO PASS ON THE SAID INFORMATION TO THE ASSESSING OFFICER ASSES SING SRI CHANDRAVADAN DESAI AND SMT.JYOTSNA DESAI (THE ASSESSES HEREIN) TOGETHE R WITH THE COPY OF THE RELEVANT SEIZED DOCUMENT CONTAINED IN PAGE 8 OF THE LOOSE SHEETS SEIZED FROM BHARAT SHAH GROUP AT MUMBAI. 7. THE LEARNED AO BASED ON THIS INFORMATION RECEIV ED FROM ACIT, CENTRAL CIRCLE 24 & 26, MUMBAI VIDE ABOVEMENTIONED LETTER D ATED 21.12.2009 PROCEEDED TO ISSUE NOTICE U/S 153C OF THE ACT ON TH E ASSESSEE. THE ASSESSEES PRAYED FOR DROPPING OF PROCEEDINGS INITIATED U/S 15 3C OF THE ACT BEFORE THE LEARNED AO AND IGNORING THE CONTENTIONS OF THE ASSE SSES, THE LEARNED AO FRAMED THE ASSESSMENT U/S 153C RWS 143(3) OF THE AC T ON 31.12.2010 FOR BOTH SRI CHANDRAVADAN DESAI AND SMT.JYOTSNA DESAI. ON FIRST APPEAL, THE ASSESSES QUESTIONED THE VALIDITY OF THE ASSESSMENTS FRAMED U /S 153C OF THE ACT FOR ALL THE YEARS WHICH WERE DISMISSED BY THE LEARNED CITA. AG GRIEVED, THE ASSESSES ARE IN APPEAL BEFORE US. 8. THE LEARNED AR APART FROM REITERATING THE AFOR ESAID FACTS ARGUED, THAT FROM THE LETTER DATED 21.12.2009 ADDRESSED BY ACIT, CEN TRAL CIRCLE 24 & 26, IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 5 MUMBAI TO THE LEARNED AO HEREIN, AND FROM THE LETTE R DATED 4.5.2010 (WHICH IS IN PAGE 21 OF THE PAPER BOOK) ISSUED BY THE LEARNED AO TO THE ASSESSES HEREIN STATING THE PURPOSE FOR WHICH SECTION 153C PROCEEDI NGS WERE INITIATED ON THE ASSESSES, IT COULD BE SEEN THAT NO SATISFACTION IN TERMS OF SECTION 153C OF THE ACT WAS RECORDED BY THE ASSESSING OFFICER OF SECTION 15 3A PERSON THAT THE ENTRIES IN THE SEIZED DOCUMENTS INDEED BELONGS TO THE ASSESSES HEREIN WARRANTING THE INVOCATION OF PROVISIONS OF SECTION 153C OF THE ACT . ACCORDINGLY, HE PLEADED THAT THE SEARCH ASSESSMENTS FRAMED U/S 153C OF THE ACT REQUIRES TO BE DECLARED VOID AB INITIO. IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE TWO PAPER BOOKS FILED BY THE L EARNED AR BEFORE US. THE FACTS NARRATED ABOVE ARE NOT DISPUTED BY THE EITHER PARTIES AND HENCE ARE NOT REITERATED FOR THE SAKE OF BREVITY. AT THE OUTSET , IT IS PERTINENT TO GET INTO THE PROVISIONS OF SECTION 153C OF THE ACT WHICH ARE REP RODUCED HEREUNDER:- 153C.ASSESSMENT OF INCOME OF ANY OTHER PERSON.- (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 39, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERS ON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL B E HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR RE ASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A : IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 6 PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SEC TION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR R EQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH O THER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEE N SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN MA DE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOME OF S UCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECT ION 153A . 9.1. IT IS OBSERVED THAT PAGE 1 OF THE PAPER BOOK CONTAINS THE LETTER DATED 21.12.2009 ADDRESSED BY ACIT, CENTRAL CIRCLE 24 & 2 6, MUMBAI TO THE LEARNED AO HEREIN, REQUESTING THE LEARNED AO HEREIN TO INIT IATE SUITABLE ACTION AGAINST THE ASSESSES HEREIN. FOR THE SAKE OF CONVENIENCE, THE SAID LETTER DATED 21.12.2009 IS REPRODUCED HEREIN BELOW:- IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 7 OFFICE OF THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 24 & 26 404, 4 TH FLOOR, AAYKAR BHAVAN, M.K ROAD, MUMBAI-400 020. PHONE [phone] NO. ACIT-24 & 26/INFORMATION/2009-10 DATE: 21 .12.2009 TO, DEPUTY COMMISSIONER OF INCOME TAX, 32 KOLKATA 10 B MIDDLETON ROW KOLKATA-76 SUB: INFORMATION IN CASE OF JYOTNA DESAI(P AN- AGPPD5544F) AND CHANDRAVADAN DESAI (PAN-AFQPD8487F) .. SEARCH OPERATION U/S. 132 WAS CONDUCTED ON THE PRE MISES OF BHARAT SHAH GROUP, IN WHICH LOOSE PAPERS 1 TO 19, CONTAINED IN ANNEXUR E A- 1, WERE SEIZED FROM 55, GAMDEVI 2 ND FLOOR, PANCHSHIL PLAZA, MUMBAI ON 15.3.2008, COPY OF WHICH ARE ANNEXED HEREWITH. THESE LOOSE PAPERS ARE SYSTEMATI C RECORDS RELATED TO ACTUAL SALES TRANSACTIONS IN LEGEND PROJECT PROMOTED BY LA YER EXPORTS PVT. LTD, SITUATED IN WALKESHWAR, MALABAR HILL, MUMBAI-400 006. MOST O F THE SAID PAPERS CONTAINS DETAILS OF FLAT NUMBERS, FLAT SIZE(TOTAL SOLD AREA) , RATE PER SQ. FT, TOTAL CONSIDERATION, BIFURCATED IN CASH AND CHEQUES, CASH TO BE PAID, C HEQUES TO BE PAID, DETAILS OF RENEGOTIATION, DETAILS OF ACTUAL CASH PAYMENT, DETA ILS OF ACTUAL CHEQUES PAYMENT ETC. IN THESE LOOSE PAPERS SH REPRESENT CASH P ORTION I.E ON MONEY OR OUT OF BOOKS PORTION AND Q AND CHQ REPRESENTS CHEQU ES PORTION I.E WHICH IS ACCOUNTED IN THE BOOKS. IN THIS REGARD, ON PAGE NO. 8, THERE IS RECORDING OF TRANSACTION RELATED TO SALES OF FLATS BY LAYER EXPO RTS PVT. TO CHANDRAVADAN DESAI (PAN-AFQPD8487F) AND JYOTNA DESAI (PAN-AGPPD5544F), OUT OF WHICH JYOTNA DESAI IS ASSESSED IN YOUR CHARGE. AS PER THE SAID RECORD, YOUR ASSESSEE HAS PAID CASH MONEY I.E. OUT OF BOOKS MONEY OF RS.80139 192 TO MY ASSESSEE. YOU ARE HEREBY REQUESTED TO TAKE NECESSARY ACTION IN THIS R EGARD AS PER PROVISIONS OF IT ACT, 1961. YOURS FAITHFULLY, SD/- (PRASOON KABRA) ASSTT. CIT, CENTRAL CIRCLE-24 & 26 MUMBAI ENCL: PGS 1 TO 19 COPY TO: 1. CCIT 2. THE CIT-11 3. THE ADDL.CIT RANGE-32 4. THE ADDL. CIT CENTRAL RANGE 5, MUMBAI ACIT CC 24 & 25 IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 8 9.2. IT IS FURTHER OBSERVED THAT PAGE 21 OF THE PAPER BOOK CONTAINS THE LETTER DATED 4.5.2010 ADDRESSED BY THE LEARNED AO TO THE A SSESSES HEREIN COMMUNICATING THE REASONS FOR INITIATING PROCEEDING S U/S 153C OF THE ACT ON THEM. FOR THE SAKE OF CONVENIENCE, THE SAID LETTE R DATED 4.5.2010 IS REPRODUCED HEREIN BELOW:- OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -32, KOLKATA NO. ACIT?CIRCLE-32?SCRUT/09-10 MAY 4, 2010 TO, SHRI CHANDRVADAN DESAI 37, SHAKESPEARE SARANI, KOLKATA-700017. SUB: PROCEEDINGS U/S 153C FOR THE A.YRS 200 2-03 TO 2008-09-MATTERS REGARDING .. PLEASE REFER TO THE NOTICE U/S. 153C ISSUED BY TH E UNDERSIGNED AND SERVED ON YOU; AS WELL AS TO YOUR REQUEST FOR SUPPLY OF T HE GROUNDS/INFORMATION ON WHICH SUCH PROCEEDINGS HAVE BEEN INITIATED. IN THE INTEREST OF NATURAL JUSTICE AND FOR THE SAKE OF TRANSPARENCY, IT IS HEREBY INFORMED THAT A SEARCH OPERATION U/S. 132 H AD BEEN CONDUCTED ON THE PREMISES OF BHARAT SHAH GROUP, AND CERTAIN DOCUMEN TS WERE SEIZED FROM 55, GAMDEVI 2 ND FLOOR, PANCHSHEEL PLAZA, MUMBAI. THE ASSESSING OFF ICER HOLDING JURISDICTION OVER THE RELATED ASSESSEE WAS SATISFI ED THAT THE SOME OF THE DOCUMENTS RELATED TO OTHER ASSESSEE, AND HAS ACCORD INGLY PASSED THE SAME TO THE RESPECTIVE ASSESSING OFFICERS. THE DOCUMENTS WHICH BORE SPECIFIC INFORMATION ON YO UR DEALINGS/TRANSACTIONS/ ACQUISITION WERE PART OF TH E SAID DOCUMENTS. COPY OF THE SAID DOCUMENTS ARE HEREBY PROVIDED FOR YOUR PURPOS ES, IN RESPONE TO THE SPECIFIC REQUEST MADE BY YOU ON THIS BEHALF. YOURS FAITHFULLY, SD/- (ABHIJIT GHOSH) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-32, KOLKATA CODE NO.WBG C 132-1 9.3. WE FIND THAT FROM THE ANNEXURE REFERRED TO BY THE LEARNED AO IN HIS LETTER DATED 4.5.2010 (I.E COPY OF THE SEIZED DOCUMENT FOR WARDED BY THE AO OF SECTION IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 9 153A PERSON) , THERE IS NO REFERENCE TO CASH PORTI ON IN SH AS MENTIONED BY THE ASSESSING OFFICER OF SECTION 153A PERSON. THE S AID ANNEXURE IS KEPT IN PAGE 9 OF THE PAPER BOOK OF THE ASSESSEE CONTAINING THE RELEVANT SEIZED DOCUMENT LOOSE PAPER WHICH IS ALSO ENCLOSED AS AN ANNEXURE T O THIS ORDER. WE FIND THAT THIS IS THE ONLY SEIZED DOCUMENT RELIED UPON BY THE LEARNED AO FOR INITIATING PROCEEDINGS U/S 153C OF THE ACT ON THE ASSESSES HER EIN. WE FIND FROM THE SAID SEIZED LOOSE PAPER, THE NOTINGS IN RESPECT OF CHQ ALONE ARE MENTIONED. WE FIND THAT THE TRANSACTIONS REFLECTED AS CHQ HAS B EEN ACCEPTED AS GENUINE BY THE ASSESSING OFFICER OF SECTION 153A PERSON ITSELF AND ONLY THE CASH TRANSACTIONS WERE SUBJECTED TO BE VERIFIED IN THE H ANDS OF THE ASSESSES HEREIN, FOR WHICH PURPOSE A LETTER DATED 21.12.2009 TOGETHER WI TH THE COPY OF THE RELEVANT SEIZED DOCUMENT LOOSE SHEETS WERE HANDED OVER TO TH E LEARNED AO HEREIN. ON VERIFICATION OF THE ENTIRE SEIZED DOCUMENT LOOSE SH EETS WHICH IS IN PAGE 9 OF THE PAPER BOOK, WE FIND THAT THERE IS NO MENTION ABOUT CASH PAYMENTS AT ALL MUCH LESS CASH PAYMENTS OF RS. 8,01,39,192/- AS ALLEGED BY THE ASSESSING OFFICER OF SECTION 153A PERSON AND HENCE THERE COULD NOT BE AN Y SATISFACTION THAT COULD BE REACHED BY HIM IN TERMS OF SECTION 153C OF THE ACT AND HENCE WE AGREE WITH THE ARGUMENTS OF THE LEARNED AR THAT THE INITIATION OF PROCEEDINGS U/S 153C OF THE ACT ON THE ASSESSES HEREIN IN THESE FACTS AND CIRCU MSTANCES ARE NOT WARRANTED AND DESERVES TO BE QUASHED. ADMITTEDLY, THE SAID S EIZED LOOSE SHEETS BELONG TO THE BHARAT SHAH GROUP (I.E THE PARTY SEARCHED U/S 1 32 OF THE ACT) AND NOT TO THE ASSESSES HEREIN. WE ALSO HOLD THAT ON PERUSAL OF T HE SAID CONTENTS OF THE SEIZED LOOSE SHEETS , NO CONCLUSION IN ACCORDANCE WITH LAW COULD BE REACHED THAT IT BELONGS TO THE PERSON OTHER THAN THE PERSON SEARCHE D U/S 132 OF THE ACT. IN THIS REGARD, THE FOLLOWING DECISIONS SUPPORTS THE VIEW O F THE ASSESSEE :- IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 10 A) DECISION OF THIS TRIBUNAL IN THE CASE OF ACIT VS VINEET DHINGRA IN IT(SS)A NO. 139/KOL/2011 DATED 31.8.2012 , WHEREIN IT WAS HELD THAT : 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT UNLIKE SECTION 15 8BD, WHICH REFERRED TO INCOME BELONGING TO A PERSON OTHER T HAN THE PERSON WHOSE PREMISES WAS SUBJECTED TO SEARCH AND SEIZURE PROCEEDINGS SECTION 153C REFERS TO ANY MONEY, BULLION, JEWELLER Y OR OTHER VALUABLE ARTICLE OR THINGS OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A ( I.E THE PERSON WHERE A SEARCH I S INITIATED UNDER SECTION 132 OR WHERE BOOKS OF ACCOUNTS OTHER DOCUM ENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER 31 ST DAY OF MAY, 2003) . IN OTHER WORDS, THEREFORE, WHILE THE EMP HASIS WAS ON INCOME BELONGING TO OTHER PERSON UNDER THE OLD SC HEME OF THE BLOCK ASSESSMENT, THE CORRESPONDING PROVISION OF SE CTION 153C REFERRED TO SITUATION WHERE DOCUMENTS BELONGING TO OTHER PERSON OR OTHER ASSETS OR BOOKS OF ACCOUNTS BELONGING TO OTHE R PERSON HAVE BEEN FOUND IN SEARCH OPERATION. HONBLE GUJARAT H IGH COURT IN THE CASE OF VIJAYBHAI N. CHANDRANI VS- ACIT REPORT ED IN 333 ITR 436 HAS HELD THAT IT IS A CONDITION PRECEDENT FOR T HE ISSUANCE OF SECTION 153C IS THAT THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THINGS OR BOOKS OF ACCOUNTS OR DOCUMENT S SEIZED OR REQUISITIONED SHOULD BELONG TO SUCH PERSON, AND TH AT WHETHER THIS REQUIREMENT IS NOT SATISFIED, RESORT CANNOT BE HA D TO THE PROVISIONS OF SECTION 153C. IT IS THUS CLEAR THAT MERELY BECAU SE A DOCUMENT IS FOUND IN THE PREMISES OF A THIRD PERSON, EVEN IF IT INDICATES UNACCOUNTED ENTRIES OF THE ASSESSEE, IT CANNOT BE THE REASON ENOUGH TO INVOKE SECTION 153C UNLESS THE SAID DOCUM ENT BELONGS TO THE PERSON WHOSE ASSESSMENT IS BEING SOUGHT TO BE OPENED OR REOPENED UNDER SECTION 153C. WHILE ON THIS ISSUE, I T IS USEFUL TO REFER TO THE FOLLOWING OBSERVATIONS MADE BY HONBLE GUJAR AT HIGH COURT IN THE CASE OF VIJAYBHAI N.CHANDRANI(SUPRA). 14. EXAMINING THE FACTS OF THE PRESENT CASE IN TH E LIGHT OF THE AFORESAID STATUTORY SCHEME, IT IS AN ADMITTED POSIT ION AS EMERGING FROM THE RECORD OF RECOVERED DURING THE S EARCH PROCEEDINGS IN QUESTION, NAMELY THE THREE LOOSE PAP ERS MAY BE THAT THERE IS A REFERENCE TO THE PETITIONER IN AS M UCH AS HIS NAME IS REFLECTED IN THE LIST UNDER THE HEADING SAMAKARSH IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 11 MEMBERS DETAILS AND CERTAIN DETAILS ARE GIVEN UN DER DIFFERENT COLUMNS AGAINST THE NAME OF THE PETITIONER ALONG WITH OTHER MEMBERS, HOWEVER, IT IS NOBODYS CASE THAT THE SAID DOCUMENTS BELONG TO THE PETITIONER. IT IS NOT EVEN THE CASE OF REVENUE THAT THE SAID THREE DOCUMENTS ARE IN THE HANDWRITING OF THE PETITIONER. IN THE CIRCUMSTANCES, WHEN THE CONDITIO N PRECEDENT FOR ISSUANCE OF NOTICE IS NOT FULFILLED ANY ACTION TAKEN UNDER S.153C OF THE ACT STANDS VITIATED. 4. WE HUMBLY BOW BEFORE THE VIEWS EXPRESSED BY A HI GHER FORUM IN JUDICIAL HIERARCHY. UNDOUBTEDLY, AT THE FIRST SI GHT, THIS LEGAL POSITION IS SIMPLY INCONGRUOUS INASMUCH AS EVEN WHE N DOCUMENT INDICATING UNACCOUNTED INCOME OF THIRD PARTY IN A SEARCH PROCEEDINGS BUT SINCE THIS DOCUMENT DID NOT BELONG TO THAT THIRD PERSON, PROVISIONS OF SECTION 153C CANNOT BE INVOKE D. HOWEVER, WHEN CLEAR WORDS OF THIS STATUTE FAIL AN INCOME BE ING BROUGHT TO TAX, IT IS NOT FOR US TO SUPPLY ANY UNINTENDED OMI SSION EVEN IF IT BE SO. LEARNED DEPARTMENTAL REPRESENTATIVES RELIANCE ON HONBLE DELHI HIGH COURTS JUDGMENT IN THE CASE OF SSP AVIA TION LTD VS. DCIT (20 TAXMANN.COM 214) IS OF NO AVAIL EITHER, A S IT MERELY HOLDS THAT EVEN IF DOCUMENTS BELONGING TO THE ASSES SEE IS FOUND IN THE PREMISES OF PERSON SEARCHED DOES NOT SHOW ANY UNDIS CLOSED INCOME, IT CAN STILL BE REASON ENOUGH TO TRIGGER ASSESSMEN T U/S. 153C IN THE CASE OF THE PERSON TO WHOM DOCUMENT BELONGS. THE DOCUMENTS FOUND IN THAT CASE WERE AGREEMENTS WHICH THE ASSESS EE HAD ENTERED INTO WITH THE PERSON SEARCHED. IN THE SAID CASE, IT WAS NOT EVEN THE PLEA OF THE ASSESSEE THAT DOCUMENTS DID NOT BELONG TO THE ASSESSEE. IN CONTRAST, IN THE CASE BEFORE US, ASSESSEE HAS CLAIM ED THAT DOCUMENTS SEIZED DID NOT BELONG TO THE ASSESSEE, AND HIS CON TENTION IS SUPPORTED BY INTERPRETATION OF EXPRESSION BELONGS TO BY BINDING JUDICIAL PRECEDENTS. IN THE LIGHT OF THE DECISIONS OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N. CHAN DRANI VS- ACIT AND IN THE LIGHT OF THE COORDINATE BENCHES DECISION S IN THE CASE OF MEGHMANI ORGANICS LTD VS- DCIT REPORTED IN 129 TT J 255 (AHD), MS. SHYAM LATA KAUSHIK VS- ACIT REPORTED IN 114 TT J (DEL) 940 AND SHIVNATH RAI HARNARAIN (INDIA) LTD REPORTED IN 117 TTJ (DEL) 480, WE UPHOLD THE ACTION OF THE CIT(A) AND DECLIN E TO INTERFERE IN THE MATTER ON THE FACTS OF THIS CASE AND IN THE LI GHT OF THE UNDISPUTED SITUATED THAT SEIZED DOCUMENTS DO NOT BELONG TO THE ASSESSEE, THE ASSESSMENT UNDER SECTION 153C WAS RIGHTLY QUASHED . WE UPHOLD THE SAME AND DECLINE TO INTERFERE IN THE MATTER. IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 12 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSING OFFICER IS DISMISSED. DURING THE COURSE OF HEARING, THE LEARNED AR STATED THAT AGAINST THIS TRIBUNAL DECISION, THE REVENUE HAD NOT PREFERRED FURTHER APP EAL BEFORE THE HONBLE CALCUTTA HIGH COURT AND THE MATTER HAS REACHED FINA LITY AND THIS POINT WAS NOT REFUTED BY THE LEARNED DR BEFORE US. B) DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF PEPSICO INDIA HOLDINGS (P) LTD VS ACIT REPORTED IN (2014) 50 TAXM ANN.COM 299 (DELHI), WHEREIN IT WAS HELD THAT O IN ORDER THAT THE ASSESSING OFFICER OF THE SEARCHE D PERSON COMES TO THE SATISFACTION THAT DOCUMENTS OR MATERIA LS FOUND DURING THE SEARCH BELONG TO A PERSON OTHER THAN THE SEARCH ED PERSON, IT IS NECESSARY THAT HE ARRIVES AT THE SATISFACTION THAT THE SAID DOCUMENTS OR MATERIALS DO NOT BELONG TO THE SEARCHE D PERSON. [ PARA 8] O IN THE INSTANT CASE, IT IS NOBODYS CASE THAT THE JAIPURIA GROUP HAD DISCLAIMED THOSE DOCUMENTS AS BELONGING TO THEM. UNLESS AND UNTIL IT IS ESTABLISHED THAT THE DOCUMEN TS DO NOT BELONG TO THE SEARCHED PERSON, THE PROVISIONS OF SECTION 1 53C DO NOT GET ATTRACTED BECAUSE THE VERY EXPRESSION USED IN SECTI ON 153C IS THAT WHERE THE ASSESSING OFFICER IS SATISFIED THAT AN Y MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BO OKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELON G TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A IN VIEW OF THIS PHRASE, IT IS NECESSARY THAT BEFORE THE PROVISIONS OF SECTION 153C CAN BE INVOKED, THE ASSESSING OFFICER OF THE SEARCH ED PERSON MUST BE SATISFIED THAT THE SEIZED MATERIAL ( WHICH INCLU DES DOCUMENTS ) DOES NOT BELONG TO THE PERSON REFERRED TO IN SEC TION 153A, I.E THE SEARCHED PERSON. IN THE SATISFACTION NOTE, WHICH IS THE SUBJECT- MATTER OF THESE WRIT PETITIONS, THERE IS NOTHING TH EREIN TO INDICATE THAT THE SEIZED DOCUMENTS DO NOT BELONG TO THE JAI PURIA GROUP. THIS IS EVEN APART FROM THE FACT THAT THERE IS NO D ISCLAIMER ON THE PART OF THE JAIPURIA GROUP INSOFAR AS THESE DOCUMEN TS ARE CONCERNED. [PARA 14]. IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 13 O SECONDLY, THE FINDING OF PHOTOCOPIES IN THE POSSE SSION OF A SEARCHED PERSON DOES NOT NECESSARILY MEAN AND IMP LY THAT THEY BELONG TO THE PERSON WHO HOLDS THE ORIGINALS. POS SESSION OF DOCUMENTS, AND POSSESSION OF PHOTOCOPIES OF DOCUME NTS ARE TWO SEPARATE THINGS. WHILE THE JAIPURIA GROUP MAY BE THE OWNER OF THE PHOTOCOPIES OF THE DOCUMENTS, IT IS QUITE POSS IBLE THAT THE ORIGINALS MAY BE OWNED BY SOME OTHER PERSON. UNLESS IT IS ESTABLISHED THAT THE DOCUMENTS IN QUESTION WHETHER THEY BE PHOTOCOPIES OR ORIGINALS, DO NOT BELONG TO THE SEA RCHED PERSON, THE QUESTION OF INVOKING SECTION 153C DOES NOT AR ISE. [ PARA 15] O THIRDLY, THE ASSESSING OFFICERS SHOULD NOT CONFUSE THE EXPRESSION BELONGS TO WITH THE EXPRESSION RELA TES TO OR REFERS TO. A REGISTERED SALE DEED, FOR EXAMPLE, BELONGS TO THE PURCHASER OF THE PROPERTY ALTHOUGH IT OBVIOUSLY R ELATES TO OR REFERS TO THE VENDOR. IN THIS EXAMPLE IF THE PURCH ASERS PREMISES ARE SEARCHED AND THE REGISTERED SALE DEED IS SEIZE D, IT CANNOT BE SAID THAT IT BELONGS TO THE VENDOR JUST BECAUSE HIS NAME IS MENTIONED IN THE DOCUMENT. IN THE CONVERSE CASE IF THE VENDORS PREMISES ARE SEARCHED AND A COPY OF THE SALE DEED I S SEIZED, IT CANNOT BE SAID THAT THE SAID COPY BELONGS TO T HE PURCHASER JUST BECAUSE IT REFERS TO HIM AND HE( THE PURCHASER) HOL DS THE ORIGINAL SALE DEED. IN THIS LIGHT, IT IS OBVIOUS THAT NONE OF THE THREE SETS OF DOCUMENTS-COPIES OF PREFERENCE SHARES, UNSIGNED LEA VES OF CHEQUE BOOKS AND THE COPY OF THE SUPPLY AND LONG AGREEMEN T-CAN BE SAID TO BELONG TO THE PETITIONER. [PARA 16]. O IN VIEW OF THE FOREGOING DISCUSSION, THE INGREDIENT S OF SECTION 153C HAVE NOT BEEN SATISFIED IN THIS CASE. CONSEQUE NTLY, THE NOTICES ISSUED UNDER SECTION 153C ARE QUASHED. ACCO RDINGLY, ALL PROCEEDINGS PURSUANT THERETO STAND QUASHED.[ PARA 1 7] 9.4. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTAN CES AND RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS , WE HOLD THAT NO SATISFACT ION IN TERMS OF SECTION 153C OF THE ACT WERE RECORDED BY THE ASSESSING OFFICER OF T HE SEARCHED PERSON U/S 132 OF THE ACT TO REACH TO A CONCLUSION THAT THE CONTEN TS IN THE SEIZED DOCUMENTS BELONGS TO THE ASSESSES ( I.E A PERSON OTHER THAN T HE SEARCHED PERSON) AND ACCORDINGLY, WE HOLD THAT THE SEARCH ASSESSMENTS FR AMED U/S 153C READ WITH IT(SS) A NOS. 114,115/KOL //2011- A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 -119/KOL//2 011-A- SH. CHANDRAVADAN DESAI A- AM 14 SECTION 143(3) OF THE ACT ON THE ASSESSES HEREIN AR E DECLARED ILLEGAL AND VOID ABINITIO. SINCE THE APPEALS OF THE ASSESSEE ARE A LLOWED ON ASSUMPTION OF JURISDICTION , WE REFRAIN TO GIVE OUR FINDINGS ON T HE MERITS OF THE ISSUE. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 6 /11 /2015 ENCL: PAGE 9 OF PAPER BOOK OF ASSESSEE COPY OF THE ORDER FORWARDED TO: 1. . THE APPELLANTASSESSEE:SMT JYOTSNA DESAI/SHRI CHAND RAVADAN DESAI 37 SHAKESPEARE SARANI, KOL-17. 2 THE RESPONDENT-ASSISTANT COMMISSIONER OF INCOME T AX, CIR-32, KOLKATA 10 MIDDLETON ROW, KOL-71. 3 4. . / THE CIT, / THE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR SD/- ( N.V. VASUDEVAN , JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 6/11/ /2015