ACIT, Cuttack V. Orissa Cricket Association, Cuttack

ITSSA 36/CTK/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8585 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 16-10-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 08-03-2012
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: J M THARDB D OJHA ARS
• Keywords: Search and seizure; Loose papers; Charitable institution; Opportunity of being heard
• Section: 153A; 12AA; 132; 12; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . . SL.NO / ITA NO . / APPELLANT / RESPONDENT ASSESSMENT YEAR S 1. ITA (SS) NOS . 36/CTK/2011 37/CTK/2011 38/CTK/2011 39/CTK/2011 40/CTK/2011 41/CTK/2011 42/CT K/2011 RAJDHANI SYSTEMS & ESTATES (P) L TD ., PLOT NO.A - 103, SAHID NAGAR,BHUBANESWAR 751 007 PAN: AABCR 8271 L DY.COMMISSI - ONER OF INCOME - TAX, BHUBANEWAR. 2000 - 01 2001 - 02 2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2. IT (SS) A NOS . 57/CTK/2011 58 /CTK/2011 59/CTK/2011 60/CTK/2011 61/CTK/2011 62/CTK/2011 63/CTK/2011 HI - TECH ESTATES & PROMOTERS (P) LTD. , PLOT NO.A - 103, SAHID NAGAR,BHUBANESWAR 751 007 PAN: AAACH 9551 G - DO - 2000 - 01 2001 - 02 2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 3. I T(SS)A NOS . 50/CTK/2011 51/CTK/2011 52/CTK/2011 53/CTK/2011 ITA NOS. 247/CTK/2012 248/CTK/2012 VIGYAN BHARATI CHARITABLE TRUST , PLOT NO.A - 1/173 SAHID NAGAR, BHUBANESWAR - 751 007 PAN: AAATV 4531 H - DO - 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 2008 - 09 RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 2 FOR THE ASSESSEES : SHRI J.M.THARD/B.D.OJHA, ARS FOR THE DEPARTMENT: SMT. PARAMITA TRIPATHY, CIT - DR / DATE OF HEARING: 22.11.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER PER BENCH . ALL THESE APPEALS ARE BEING CON SIDERED FOR DISPOSAL TOGETHER , AS THEY WERE PUT FORTH BY THE RIVAL PARTIES HERE TO ON THE BASIS OF FINDINGS NOTED BY THE AUTHORITIES BELOW IN THE CASE OF HI - TECH ESTATES & PROMOTERS (P) LTD., BEING ONE OF THE COMPANIES WHEN THE GROUP INVOLVING THE OTHER TW O ASSESSEES WERE SUBJECTED TO SEARCH CARRIED OUT ON 30.9.2005. THE ISSUES MAINLY REMAINING COMMON IN A CONSEQUENCE THERETO THE ASSESSMENTS IN THE CASE OF VIGYAN BHARATI CHARITABLE TRUST HAVE ALSO BEEN CARRIED OUT GIVING A RESIDUAL DENIAL OF EXEMPTION U/S.1 1 OF THE I.T.ACT,1961. IN ANY CASE THE COMMON ISSUE IN RESPECT OF ALL THESE ASSESSES IS THAT NO RETURN IN PURSUANCE TO NOTICE U/S.153A HAD BEEN FILED AND ASSESSMENTS HAVE BEEN PASSED U/S.144. 2. IN THE CASE OF HI - TECH ESTATES & PROMOTERS (P) LTD., & M/S. RAJDHANI SYSTEMS & ESTATES (P) LTD . , THE FACTS ARE COMMON. THE BRIEF FACTS AS HAVE BEEN BROUGHT NO RECORD BY THE LEARNED CIT(A) IN HIS ORDER IN THE CASE OF M/S.RAJDHANI SYSTEMS & ESTATES (P) LTD., ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPAN Y ENGAGED IN THE BUSINESS OF DEALINGS IN REAL ESTATE. A SEARCH & SEIZURE OPERATION WAS CARRIED OUT IN THE PREMISES OF THE ASSESSEE 4. IT(SS)A NOS . 64/CTK/2011 214/CTK/2012 215/CTK/2012 ASST.COMMISSIONER OF INCOME - TAX , CIRCLE 2(2), BHUBANESWAR. VIGYAN BHARATI CHARITABLE TRUST , PLOT NO.A - 1/173 SAHID NAGAR, BHUBANESWAR - 751 007 PAN: AAATV 4531 H 2006 - 07 2007 - 08 2008 - 09 RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 3 ON 30 TH SEPTEMBER 2005 IN CONSEQUENCE TO WARRANT OF AUTHORIZATION ISSUED BY THE DIRECTOR OF INCOME TAX ( IN V), BHUBANESWAR. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, THE AUTHORIZED OFFICER AFTER CONCLUSION OF THE SAID SEARCH AND SEIZURE OPERATION ON 30.09.2005 TOOK AWAY OTHER BOOKS OF ACCOUNT AND DOCUMENTS AS AVAILABLE AT THE SAID PREMISES WHICH ARE NOT MENTIONED IN THE PANCHANA MA AND ALSO THAT NO ACKNOWLEDGMENT/SEIZURE LIST TO THAT EFFECT WAS GIVEN BY THE CONCERNED AUTHORIZED OFFICER. THE ASSESSEE WAS UNABLE TO KNOW WHAT ARE THE BOOKS OF ACCOUNT HAVE BEEN TAKEN AWAY BY THE AUTHORIZED OFFICER AND THE DETAILS THEREOF. THE ASSESSEE REQUESTED SEVERAL TIMES TO THE ADDITIONAL DIRECTOR OF INCOME TAX ( INV.), BHUBANESWAR WHO WAS IN OVER ALL CHARGE OF THE SEARCH AND SEIZURE OPERATION OF THE ASSESSEES CASE FOR RELEASE OF THE ILLEGALLY RETAINED BOOKS OF ACCOUNT BY THE INVESTIGATION WING OF T HE DEPARTMENT. THE ASSESSEE BEING AGGRIEVED WITH THE OMISSION/COMMISSION OF THE ADDITIONAL DIRECTOR OF INCOME TAX ( INV. ), BHUBANESWAR FILED WRIT PETITION VIDE WP (C) NO. 748/2006 BEFORE THE HONBLE ORISSA HIGH COURT PRAYING TO RELEASE THOSE ILLEGALLY RETAI NED BOOKS OF ACCOUNT/DOCUMENTS. WHEN THE MATTER STOOD THUS , THE LD. ASSESSING OFFICER ISSUED A NOTICE DATED 31.08.2006 U/S 153A OF THE ACT AND SE R VED ON THE ASSESSEES ON 12.09.2006 TO FILE THE RETURN S OF INCOME WITHIN 30 DAYS OF RECEIPT OF THE SAID NOTIC E. IN RESPONSE TO THE IMPUGNED NOTICE, THE ASSESSEE FURNISHED WRITTEN SUBMISSION ON 10.10.2006 INTER ALIA STATING THEREIN THAT THE ASSESSEE HAD FILED A PETITION VIDE WP (C) NO. 748/2006 BEFORE THE HONBLE ORISSA HIGH COURT PRAYING TO RELEASE THOSE ILLEGALL Y RETAINED BOOKS OF ACCOUNT/DOCUMENTS AND AS THE ASSESSEE WAS NOT HAVING ALL THE BOOKS OF ACCOUNT AND DOCUMENTS WITH ITS POSSESS ION, THE ASSESSEE IS UNABLE TO PREPARE THE TRUE AND CORRECT RETURN AND THE SAME WAS NOT WITHIN THE CONTROL RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 4 OF THE ASSESSEE AND I T IS NOT HUMANLY POSSIBLE TO PREPARE A TRUE AND CORRECT RETURN OF THE INCOME OF THE ASSESSEE . THE ASSESSEE PRAYED THE ASSESSING OFFICER SHOULD RECONSIDER THE NOTICE AS ISSUED U/S 153A (A)/153C OR ALTERNATIVELY TO ALLOW THE ASSESSEE TIME TILL THE IT GETS BA CK THE BOOKS OF ACCOUNT/DOCUMENT LYING ILLEGALLY IN THE CUSTODY OF THE INVESTIGATION WING OF THE DEPARTMENT AS THE MATTER IS SUB JUDICE BEFORE THE HONBLE HIGH COURT INTER ALIA IN THE INTEREST OF EQUITY, JUSTICE AND FAIR PLAY. IT WAS ALSO MENTIONED THEREIN THAT IN CASE ANY FURTHER CLARIFICATION IS NECESSARY, THE ASSESSEE MAY KINDLY BE GIVEN AN OPPORTUNITY OF BEING HEARD. THE HON BLE ORISSA HIGH COURT WHILE DISPOSING THE SAID WRIT PETITION VIDE ORDER DATED 07.11.2006 DIRECTED THE ASSESSEE TO TAKE BACK SUCH BO OKS OF ACCOUNT AND DOCUMENTS FROM THE AUTHORIZED OFFICER IN TERMS OF THE SUBMISSION MADE BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT. IN PURSUANCE TO THE SAID ORDER, THE APPELLANT HAS TAKEN BACK ON 08.12.2006 THE BOO KS OF ACCOUNT IDENTIFIED AS NP - 1 TO NP - 67 AS DISCLOSED BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT. ON 01.02.2007, THE DY. DIRECTOR OF INCOME - TAX ( IN V.), UNIT - 2(1), BHUBANESWAR INFORMED THE ASSESSEE TO TAKE BACK THE OTHER BOOKS OF ACCOUNT AND DOCUMENTS LYING WITH HIM WITHOUT MENTIONING T HE DETAILS OF IDENTIFICATION OF SUCH BOOKS OF ACCOUNT AND DOCUMENTS IN THE IMPUGNED LETTER IN EXCESS OF WHAT IS DISCLOSED BEFORE THE HONBLE HIGH COURT AS CITED SUPRA. THE ASSESSEE ON 05.02.2007 HAS RECEIVED SOME OF THE BOOKS OF ACCOUNT WHICH ARE KEPT ILLE GALLY WITH THE AUTHORIZED OFFICER. THE DY. DIRECTOR WHO HAD RELEASED THE BOOKS OF ACCOUNT IS LYING WITH THE DEPARTMENT AFTER RETURNING THE BOOKS OF ACCOUNT ON 5.2.2007 EVEN THOUGH THE SAME HAS BEEN REQUESTED BY THE ASSESSEE. THE A/R HAS DISCUSSED THE MATTE R AND THE REASON FOR WHICH THE RETURN IS NOT BEING FILED HAS BEEN EXPLAINED TO THE LEARNED RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 5 ASSESSING OFFICER. SUBSEQUENTLY, ON 27.11.2007 THE SEIZED HARD DISC UNDER THE MARKS OF IDENTIFICATION HMCH - 52 KEPT IN A SEALED MANNER WAS OPENED BY THE LEARNED ASSES SING OFFICER AND IT WAS MADE AVAILABLE TO THE ASSESSEE . THEREAFTER ANOTHER CD HAVING THE IDENTIFICATION MARK H.M.C.H - 45 WAS OPENED ON 17.12.2007. THE LEARNED ASSESSING OFFICER HAS NOT MADE ANY EFFORT TO GIVE THE DECLARATION THAT NO BOOKS OF ACCOUNT OR DOCU MENTS, STATEMENTS, MATERIALS ARE IN POSSESSION WITH THE DEPARTMENT WITHOUT THE AUTHORITY OF LAW BEFORE ENFORCING THE COMPLIANCE TO THE NOTICE U/S 153A ALTERNATIVELY WITHDRAW/QUASH THE NOTICE U/S 153A ISSUED BY HIM. THE LEARNED ASSESSING OFFICER IGNORING TH E SUBMISSION MADE BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS INTER ALIA THE WRIT PETITION IN W.P. (C ) NO.3606/2006 IS PENDING BEFORE THE HONBLE HIGH COURT IN THE MATTER OF SEIZURE MADE IN VI OLAT ION OF SECTION 132(8A), HAS PASSED ASSE SSMENT ORDER. 2. IN THE CASE OF VIGYAN BHARATI CHARITABLE TRUST, THE BRIEF FACTS AS STATED BY THE ASSESSEE IN ITS STATEMENT OF FACTS REPRODUCED BY THE LEARNED CIT(A) IN HIS ORDER ARE THAT T HE ASSESSEE IS RUNNING AN EDUCATIONAL INSTITUTION ALONG WITH HOSPIT AL. THE ASSESSEE HAS APPLIED FOR GRANT OF REGISTRATION U/S 12AA OF INCOME - TAX ACT 1961 ON 12.09.2003 BEFORE THE COMMISSIONER OF INCOME - TAX, BHUBANESWAR. IN ACCORDANCE WITH THE PROVISIONS OF THE ACT, THE APPLICATION FOR GRANT OF REGISTRATION SHOULD HAVE DIS POSED BY THE HONBLE COMMISSIONER OF INCOME - TAX WITHIN SIX MONTHS OF FILING OF THE APPLICATION. EVEN THOUGH MORE THAN SEVEN YEARS HAVE BEEN ELAPSED , THE COMMISSIONER OF INCOME TAX IS YET TO DISPOSE OF THE APPLICATION. THE LEARNED ASSESSING OFFICER IGNORING THE MATTER OF APPLICATION FOR GRANT OF REGISTRATION PENDING BEFORE THE COMMISSIONER OF INCOME - TAX HAS COME TO CONCLUSION THAT THE BENEFIT U/S S. 11 & 12 OF THE ACT WILL NOT BE PROVIDED TO RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 6 THE ASSESSEE AS THE ASSESSEE IS YET TO BE GRANTED REGISTRATION BY TH E HONBLE COMMISSIONER OF INCOME TAX AND ON THE BASIS OF SUCH CONCLUSION THE LEARNED ASSESSING OFFICER HAS PROCEEDED TO COMPUTE THE TOTAL INCOME OF THE APPELLANT WHEREIN THE LEARNED ASSESSING OFFICER HAS CITED CASE LAWS WHICH ARE NOT APPLICABLE TO THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE AND COME TO THE CONCLUSION THAT THE ORGANIZATIONS ACTIVITIES IS NOT CHARITABLE BUT BUSINESS WHICH IS CONTRARY TO THE FACTS ON RECORD. THE LEARNED ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT HAS ASKED FOR BOOKS OF ACCOUNT AND DOCUMENTS WHICH HAS BEEN SUBMITTED TO THE LEARNED ASSESSING OFFICER FOR THE PURPOSE OF MAKING ASSESSMENT. THAT, THE LEARNED A SS ESSING OFFICER INSTEAD OF ACCEPTING THE RETURN FIGURE HAS MADE THE ADDITIONS. 3. THE RIVAL PARTIES BEFORE US ARGU ED AT LENGTH AND WE HAVE TAKEN NOTE OF THE SUBMISSIONS MADE BY THE PARTIES HERETO WHEN THE LEARNED COUNSEL OF THE ASSESSEE HAVE RELIED ON THE PAPER BOOK SUBMITTED ALONG WITH THE RETURN WHEN THE BASIC QUESTION OF GETTING ASSESSMENTS IN THE MANNER SO AS TO M AKE REASONABLE ASSESSMENT ON THE INCOME IN PURSUANCE TO NOTICE U/S.153A HAS NOT BEEN ELABORATED. THE LEARNED COUNSEL OF THE ASSESSEE ON THE OTHER HAND TRIED TO STRESS UPON THE LIMITATION OF HAVING MADE AND PASSED THE ORDERS ON A DAY WHEN THE LIMITATION EXP IRED. IN THE CASE OF VIGYAN BHARATI CHARITABLE TRUST IT HAS BEEN SUBMITTED THAT THE AUTHORITIES BELOW PARTLY ACCEPTED THE CONTENTION WHEN ASSESSEE IS RUNNING A CHARITABLE INSTITUTION BEING A MEDICAL COLLEGE HAVE TRIED INVOKING THE PROVISIONS OF SECTIONS 1 1 AND 13 TO THE EXTENT THAT THE AMOUNT RECEIVED IN THE CORPUS HAS ALSO BEEN SUBJECTED TO TAX BY ALIENATING THEM ON THE BASIS OF STATEMENT RECORDED UNDER THE PROVISIONS OF SECTION 132(4 ) AS EXTRA FEES . NO JUSTICE APPEARS TO HAVE BEEN RENDERED INSOFAR AS THE LEARNED COUNSEL OF THE ASSESSEE HAS ARGUED THE SHORT COMINGS RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 7 ENCOUNTERED BY THE ASSESSEE DUE TO THE ASSESSING AUTHORITIES INABILITY TO PROCEED WITH THE HONBLE HIGH COURTS DIRECTION. 4. WE HAVE ALSO HEARD THE LEARNED DR WHEN ON A SPECIFIC QUERY BY THE BENCH WHETHER THE REVENUE IS IN APPEAL AGAINST THE PART RELIEF GRANTED BY THE LEARNED CIT(A) WAS ANSWERED IN THE NEGATIVE. SHE EMPHASIZED THAT WHEN THE ASSESSING OFFICER HAS GIVEN A CATEGORICAL FINDING THAT NUMEROUS CUSTOMERS OF THE PURPORTED ADVANCES RECE IVED AGAINST SALE OF LAND WAS TO BE CONSIDERED FOR THE PURPOSE OF TAXING INCOME REMAINING UNDISCLOSED WAS ON THE BASIS OF NON - COOPERATIVE ATTITUDE OF THE ASSESSEE WHO WAS SUBJECTED TO SEARCH AND SEIZURE OUGHT TO HAVE EXPLAINED THAT THESE ARE LIABILITIES AG AINST LAND WHICH THE ASSESSEE IS YET TO ACQUIRE CANNOT BE TERMED AS INCOME WHICH THE LEARNED CIT(A) HAS PARTLY GRANTED RELIEF WITHOUT UNDERSTANDING THE CRUCIAL ISSUE INSOFAR AS THE SUBMISSION OF THE ASSESSEE BEFORE THE LEARNED CIT(A), AS RECORDED IN PARAG RAPHS 19.4 TO 19.10 OF THE APPELLATE ORDER , BE CONSIDERED REPRODUCED AS UNDER : 19.4. THE CUSTOMER BASE WAS DIVIDED BY THE ASSESSING OFFICER INTO NINE SUB - HEADS AS - (I) ENTIRE TRANSACTION IN CHEQUE & LAND RECEIVED; (II ) ENTIRE TRANSACTION IN CHEQUE & LA ND NOT RECEIVED; (III ) ENTIRE TRANSACTION IN CASH & LAND RECEIVED; (IV) ENTIRE TRANSACTION IN CASH & LAND NOT RECEIVED; (V) TRANSACTION PARTLY IN CHEQUE AND PARTLY IN CASH & LAND RECEIVED; (VI) TRANSACTION PARTLY IN CHEQUE AND PARTLY IN CASH & LAND NOT REC EIVED; (VII) TRANSACTION PARTLY IN CHEQUE AND PARTLY IN CASH & AMOUNT REFUNDED; (V III ) ENTIRE TRANSACTION IN CHEQUE & AMOUNT REFUNDED; (IX) ENTIRE TRANSAC TION IN CASH & AMOUNT REFUNDED. AS STATED ABOVE, THE CUSTOMER BASE OF THE ASSESSEE WAS AROUND 3,200 CU STOMERS DURING THE RELEVANT PERIOD. THEREFORE, THE AO FELT THAT THE RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 8 VERIFICATION, OF NECESSITY, NEEDS TO BE DONE BY SELECTING SAMPLE OF THE CUSTOMERS. THE MOST SUSPICIOUS AMONGST THE CUSTOMERS ARE THE ONE WHO HAD PAID THEIR INSTALLMENTS IN CASH BUT SO FAR HAS NOT RECEIVED ANY LAND. THE AO IS OF THE OPINION THAT A PRUDENT PERSON WOULD OBVIOUSLY ASK FOR THE PROPOSED LAND OR WOULD DEMAND HIS MONEY BACK. THE AO COLLECTED YEAR - WISE, PROJECT - WISE, CUSTOMER ADVANCE DETAILS FROM THE APPELLANT. THE TOTAL NUMBER OF C USTOMERS WHO HAVE PAID THE AMOUNT IN CASH BUT NOT RECEIVED ANY LAND WAS AROUND 514 FOR KUNJA VTHAR PROJECT. THE AO ISSUED SUMMONS TO FIFTY OF SUCH CUSTOMERS ON A RANDOM BASIS. OUT OF THEM 32 PERSONS TURNED UP AND THEIR DEPOSITIONS WERE RECORDED. ALL OF THE M ADMITTED TO HAVE ADVANCED MONEY. VERY FEW HAVE RECEIVED THE LAND. VERY FEW HAVE OBTAINED REFUNDS. THE AO HAD CALLED FOR THE BASE DOCUMENTS VIZ; APPLICATION FORMS FROM CUSTOMERS, REGISTERS MAINTAINED BY THE APPELLANT PROJECT - WISE ETC AND THEY WERE TEST CH ECKED AND IT IS FOUND THAT ALL THE ABOVE DETAILS ARE AVAILABLE WITH THE APPELLANT. TO SUM UP OUT OF THE SAMPLE SIZE OF 50, 32 CONFIRMATIONS CAME REGARDING PAYMENT OF ADVANCE. IN THE EXERCISE NOT A SINGLE CASE WAS DETECTED IN WHICH BOGUS ADVANCE WAS CLAIMED . 19.5. THE AO HAS GIVEN THE PROJECT - WISE DETAILS IN THE REMAND REPORT WHICH HAS BEEN QUOTED ABOVE. OUT OF SAMPLE SIZE OF 50, 32 PERSONS APPEARED BEFORE THE AO AND CONFESSED UNDER OATH TO HAVE PAID THE AMOUNT AND HAVE NOT RECEIVED THE LAND. THEREFORE, THE AMOUNT HAS BEEN CORRECTLY SHOWN AS ADVANCE FROM CUSTOMERS. THE AO FELT THAT SINCE THE SAMPLE SIZE WAS TOO SMALL, IT WOULD BE PRUDENT TO ADOPT THE BASIS AS WAS DONE IN THE ASSESSMENT YEAR 2008 - 09. THE CUSTOMER BASE WAS HANDLED BY THE AO IN THE A. V. 2008 - 0 9. THE APPELLANT FAILED TO GIVE NAME AND ADDRESS OF ABOUT 25% OF THE CUSTOMERS IN THE A.Y 2008 - 09 AND THEREFORE THE AO ADDED 25% OF THE INCREMENTAL INCREASE IN THE CUSTOMER BASE IN THE A. Y. 2008 - 09. THE REASONING FOR SUCH ADDITION HAS GIVEN IN THE ASSESSME NT ORDER FOR A.Y. 2008 - 09 ARE AS UNDER: ABOUT 107 NAMES AT RANDOM WERE GIVEN TO THE 4/P OF WHICH 26 NAMES COULD NOT BE PRODUCED. THE TOTAL NUMBERS OF CUSTOMERS FOR OLD PROJECTS ARE AROUND 3500 AS ON 31.03.08. THE A/R PLEADS FOR MORE TIME STATING THAT THE RECORDS ARE OLD RECORDS, RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 9 RETRIEVING THEM IS TIME CONSUMING AND ARE NOT READILY AVAILABLE. NO MORE TIME CAN BE GIVEN AS THE CASE IS GETTING TIME BARRED SHORTLY. AS THE AIR FAILED TO PRODUCE ADDRESSES OF 22 PERSONS OUT OF TOTAL GIVEN NAME OF 103 CUSTOMERS I. E. 24%, I DISALLOW 25% OF CUSTOMERS ADVANCE RECEIVED FOR OLD PROJECTS AMOUNTING TO RS.1,05,19,598/ - . 19.6 . THE AO DURING THE REMAND PROCEEDINGS HAS EXAMINED THE ISSUE OF ADVANCE FROM CUSTOMERS IN DETAIL AS NARRATED ABOVE AND HAS GIVEN THE REPORT QUOTED ABOVE IN WHICH AO S RECOMMENDATION IS AS UNDER: A SMALL SAMPLE OF 50 CUSTOMERS WERE SELECTED FOR TEST CHECK AND SUMMONS WERE ISSUED. 32 OF THE PERSONS FOUND UP AND CONFESSED UNDER OATH TO HAVE PAID THE AMOUNT AND HAVE NOT RECEIVED THE LAND. SINCE THE SAM PLE SIZE WAS TOO SMALL FOR A CUSTOMER BASE ON LARGE AS 3200 THE REVISED METHOD WAS DEVISED TO CHECK THE CUSTOMER ADVANCE. AS THE AIR FAILED TO GIVE NAME AND ADDRESSES OF ABOUT 25% OF CUSTOMERS IN THE AY 08 - 09 AND THE SAME CUSTOMER BASE WAS HANDLED, THE SAM E RATION MAY BE APPLIED AND 25% OF INCREMENTAL CUSTOMER ADVANCE BE ADDED AS NOT VERIFIABLE AMOUNTING TO RS. 3 7,54,884/ - (25% OF RS. 1,50,19,535/ - ). THE NAMES AND ADDRESSED OF PERSON WHICH WERE NOT FURNISHED APPEAR TO BE DOUBTFUL AND WERE DISALLOWED. 19. 7 . THE REPORT OF THE AO WAS GIVEN TO TH E APPELLANT AND APPELLANTS REJ OINDER TO THE REMAND REPORT HAS ALREADY BEEN QUOTED ABOVE. THE APPELLANT SUBMITS THAT RECEIVING ADVANCES FROM THE CUSTOMERS IS INHERENT IN THE NATURE OF BUSINESS. THE BUYERS OF THE LAND PAY MONEY IN ADVANCE AND AFTER THE LAND IS PURCHASED AND MADE READY THE SAME WERE REGISTERED IN THE NAME OF THE BUYERS. THE APPELLANT HAS KEPT DUE RECORD OF THE MONEY RECEIPT AND THE SAME WERE PRODUCED BEFORE THE AO. EVEN IN THE SEARCH AND SEIZURE PROCEED INGS U/S.132 OF THE ACT, NO ADVERSE EVIDENCE WAS FOUND AS FAR AS ADVANCE FROM CUSTOMERS ARE CONCERNED. THE DEPARTMENT DOES NOT HAVE ANY EVIDENCE TO PROVE THAT ANY OF THE CLAIM OF ADVANCE FROM CUSTOMERS IS WRONG. RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 10 19.8 . IN THE ORIGINAL ASSESSMENT THE ENTIR E AMOUNT WAS ADDED, AS ARGUED BY THE APPELLANT, ON SURMISES AND CONJECTURES AND IN A CRYPTIC MANNER. DURING THE REMAND PROCEEDINGS THE AO HAS EXAMINED THE PERSONS ON A TEST CHECK BASIS AS IT WAS NOT POSSIBLE ON HIS PART TO EXAMINE EACH AND EVERY PERSON. SU CH EXAMINATION HAS GONE IN FAVOUR OF THE APPELLANT. THE PERSONS WHO APPEARED BEFORE THE AO HAVE ADMITTED THAT THEY HAVE PAID THE AMOUNT AND YET TO RECEIVE THE LAND AGAINST THE PAYMENT. THE APPELLANT SUBMITS THAT THE A O DURING THE COURSE OF EXAMINATION HAS NOT COME ACROSS A SINGLE CASE WHEREIN ANY ONE OF THE CUSTOMERS HAS DISOWNED THE ADVANCE. UNDER SUCH CIRCUMSTANCES, THE APPELLANT SUBMITS THAT THE AO SHOULD HAVE ACCEPTED THE CLAIM OF ADVANCE FROM CUSTOMERS AS GENUINE. 19.9 . HAVING FAILED TO ESTABLISH TH AT THE ADVANCE FROM CUSTOMERS IS NOT GENUINE, THE AO EXCEEDED HIS JURISDICTION B Y CITING THE FINDINGS IN THE A. Y. 2008 - 09 WHICH IS ALSO UNDER APPEAL. THE FINDING IN THE A. Y. 2008 - 09 IS BASED ON THE PRESUMPTION AFTER GIVING OPPORTUNITY TO THE APPELLANT WH ICH IS NOT THE FACT IN THE IMPUGNED CASE. THE APPELLANT FURTHER SUBMITS THAT THE AO HAS ALLOWED THE ENTIRE CUSTOMER ADVANCE RECEIVED DURING THE YEAR IN RESPECT OF PROJECTS LUNCHED AFTER T HE SEARCH PERIOD AND FOR THAT MATTER THE ADVANCE RECEIVED DURING THE RELEVANT ASSESSMENT YEAR IS TO BE ALLOWED BASED ON THE FINDING OF THE A. Y. 2008 - 09. THE APPELLANT, THEREFORE, SUBMITS THAT THE REMAND REPORT OF THE AO IS BASED ON SURMISES AND CONJECTURES AND THE FINDING OF THE AO THAT 25% OF THE CUSTOMER ADVANCE SHOULD B E ADDED IS WITHOUT HAVING ANY FACTUAL BASIS. SINCE THE AO HAS FAILED TO ESTABLISH ANY PART OF THE ADVANCE FRO M CUSTOMERS IS BOGUS, THE LD. A/ R VEHEMENTLY ARGUED, THE ENTIRE CLAIM OF ADVANCE FROM CUSTOMERS SHOULD BE ALLOWED, THE ADDITION MADE IN THIS REGARD BE DE LETED AND AO S REPORT FOR RETAINING 25% OF THE ADDITION BE REJECTED. 5. THE LEARNED CIT - DR ARGUED THAT THE ASSESSEE COULD NOT TAKE ADVANTAGE OF ITS OWN PREDICAMENT INSOFAR AS HAVING OBTAINED ADVANCES FROM RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 11 CUSTOMERS IT WAS NOT THE ASSESSEES ENDEAVO R TO RENDER INCOME WHICH IT COULD FEEL WAS AVAILABLE TO IT WHEN THE CUSTOMERS REMAINING UNSATISFIED HAVE CALLED FOR THE REFUND OF THE AMOUNT HAVING PREFERRED APPEALS BEFORE THE APPROPRIATE COURTS. IN OTHER WORDS, SHE ARGUED THAT THE ASSESSEE PREFERRED TO S EAT ON THE FENCE TO TAKE STOCK OF THE SITUATION WHICH WOULD TURNOUT AFTER THE CIT(A)S ORDER TO REC ONSIDER FILING OF THE RETURN LE ST THEY MADE A MISTAKE IN APPEARING BEFORE THE ASSESSING OFFICER TO EXPLAIN THE BASIC FACTS WHICH WERE AVAILABLE TO THE ASSES SING OFFICER ON THE BASIS OF ORIGINAL RETURNS FILED EARLIER HAVING AUDITED FINANCIAL STATEMENTS . SHE ARGUED THAT THE ASSESSING OFFICER HAD NO ALTERNATIVE BUT TO PROCEED TO BRING TO TAX THE VERY INCOME WHICH COULD NOT BE ESTIMATED AT A LOWER FIGURE INSOFAR AS THE ASSESSEE TOOK ADVANTAGE OF THE SITUATION BY NEITHER FILING RETURNS IN PURSUANCE TO NOTICE U/S.153A NOR APPEARING TO EXPLAIN THE RETURNS TAKEN ON RECORD BY THE ASSESSING OFFICER FOR THE PURPOSE OF FINDING OF FACT THAT THE INCOME REMAINING UNDISCLOS ED IN THE ORIGINAL RETURNS THAT STOOD FILED AT LEAST OUGHT TO HAVE BEEN BROUGHT TO TAX WHICH THE LEARNED CIT(A) HAS ARBITRARILY REDUCED NOT EVEN CONSIDERING THE CORRESPONDING AMOUNT OF THE FIXED ASSETS CREATED AND HELD BY THE ASSESSEE. SHE ARGUED THAT INTA NGIBLES HAVE NOT BEEN BROUGHT ON RECORD TO THE EXTENT THAT THE SEARCH MATERIAL DID NOT REVEAL ANY MODUS OPERANDI OF WITHHOLDING THE TAX WHEN THE MAGNITUDE OF CUSTOMERS IN BOTH THE ASSESSEES COMPANIES ROSE BETWEEN 30,000 TO 50,000 CUSTOMERS. 6. ON THE OTHER HAND, THE LEARNED COUNSEL OF THE ASSESSEE RELIED ON THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEALS WHICH HE FULLY SUPPORTED MORE SO BECAUSE IT WAS NOT THE CASE OF THE ASSESSEE TO TAKE ADVANTAGE OF THE SITUATION SITTING ON FENCE THAT THE ASSESSEE HAS TA KEN ADVANTAGE OF THE MISINTERPRETATION OF FACTS BY ESTIMATING ON THE POLICY IN BRINGING TO TAX RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 12 UNDISCLOSED INCOME AS MENTIONED ABOVE. REMAND REPORTS WERE OBTAINED BY THE LEARNED CIT(A) WHEN HE WAS PLEASED TO GRANT PART RELIEF AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL THEREFORE HAS TO BE CORRELATED WHICH PROPOSED INCOME SUSTAINED BY THE LEARNED CIT(A) HAS BEEN TABULATED BY THE LEARNED COUNSEL OF THE ASSESSEE INDICATING THE FOLLOWINGS. 7 . IN THE CASE OF VIGYAN BHARATI CHARITABLE TRUST, H OWEVER, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT HAVING CONSIDERED THE CASE OF THE ASSESSEE THAT IT IS A CHARITABLE INSTITUTION IMPARTING MEDICAL EDUCATION WHEN THE FIRST BATCH TAKEN IN AY 2003 - 04, IT WAS NOT THE CASE FOR THE ASSESSING OFFICER TO DENY THE AMOUNT RECEIVED AS CORPUS WHICH HE HAS BROUGHT TO TAX RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 13 AS EXTRA FEES IS IN VIOLATION TO THE PROVISIONS OF THE I.T.ACT AS WELL AS THE DIRECTION OF THE HONBLE SUPREME COURT WHEN THE CAPITATION FEES ROUTED THROUGH THE INCOME AND EXPENDITURE ACCOUNT CANNOT BE TAXED WHEN THE SAME HAS BEEN HELD AS CORPUS WAS DILUTED PARTLY BY THE LEARNED CIT(A) BUT CONSIDERED IN HOLDING A VIEW THAT THE EXEMPTION FOR CLAIMING BENEFIT OF SECTION 11 CANNOT BE CONFIRMED. 8. THE DEPARTMENT IS IN APPEAL ON THIS ISSUE FOR THE AYS 2006 - 07, 2007 - 08 AND 2008 - 09 CLEARLY INDICATES THAT THE MATTER HAS NOT BEEN UNDERSTOOD BY THE AUTHORITIES BELOW IN ITS PROPER PERCEPTIVE. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT ONCE HAVING UNDERSTOOD THE APPLICATION OF INCOME FOR THE PURPOS E OF CARRYING OUT INFRASTRUCTURE IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO LINK THE CORPUS WITH THE FIXED ASSETS WHICH IN CONSEQUENCE TO FINDING OF UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEES BEING PRIVATE LIMITED COMPANIES WAS TO FIND ITS WAY I N THE EDUCATIONAL INSTITUTION. HE SUBMITTED THAT THE ESTIMATIONS AS CAN BE CONSIDERED IN THE ABOVE CHART WOULD NOT LEAD TO A FINDING THAT THE ASSETS HAVE BEEN CREATED OUT OF UNDISCLOSED INCOME. 9. WE HAVE CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD AND DO FIND THAT JUSTICE HAS NOT BEEN RENDERED TO THE REVENUE BY THE LEARNED CIT(A) NOT BECAUSE THE REVENUE HAVE OT PREFERRED CROSS OBJECTION/APPEAL AGAINST CIT(A)S ORDER BY REDUCING THE INCOME SO BROUGHT N RECORD BY THE ASSESSING OFFICER WHO WAS TO CONSI DER THE CASE OF THE ASSESSEE IN PURSUANCE TO NOTICE U/S.153A INSOFAR AS NO ORDER U/S.153C HAS BEEN MADE IN THE CASE OF VIGYAN BHARATI CHARITABLE TRUST .WE ALSO FIND THAT THE ASSESSEE REMAINED EMBROILED IN TRYING TO GET BACK THE SEIZED MATERIAL WHICH MAY O R MAY NOT BE DUMB DOCUMENTS AND WHICH MAY OR MAY NOT BE PART OF DOCUMENTS LEADING TO RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 14 COMPILATION OF INCOME RENDERED ORIGINALLY BEFORE THE SEARCH TOOK PLACE. WE HAVE ALSO CONSIDERED THE FACT THAT SITTING ON THE FENCE THE ASSESSEE COULD NOT BE THE REFERENCE TO SHOUT FOUL WHERE HE HIMSELF DID NOT KNOW THAT THE COMPUTATION OF INCOME SO RETURNED WAS FAULTY TO THE EXTENT THAT THE ADVANCE FROM CUSTOMERS WAS ON THE BASIS OF LAND YET TO BE ACQUIRED. GRANTING OF PART RELIEF BY THE LEARNED CIT(A) THEREFORE , WAS UNJUST IFIABLE TO THE EXTENT THAT THE ASSESSING OFFICER CONSIDERED THE MODUS OPERANDI DERIVING THE INCOME IN THE HANDS OF THE ASSESSEE IN THE IMPUGNED ASSESSMENT YEAR S BY ADOPTING A POLICY THAT HOW A CUSTOMER WHO COULD YIELD INCOME OF THE ASSESSEE WOULD WANT REFU ND IN CASE THE ASSESSEE DID NOT HAVE THE LAND. THE ASSESSEE COULD NOT COMPUTE THE CORRECT PROFIT BECAUSE THE ASSESSEE DID NOT HAVE THE LAND WHICH HE HAD ALREADY TAKEN ADVANCE AGAINST. THE DETERMINATION OF GETTING THE ACCOUNTS AUDITED WAS ALREADY BEYOND TIM E AND THEREFORE, THE LEARNED CIT(A) CALLED FOR A REMAND REPORT TO CREATE A SITUATION WHEN THE ASSESSEE WOULD BE TAKE ADVANTAGE OF NOT DISCLOSING THE TRUE I NCOME IN ITS HAND INSOFAR AS THE MAGNITUDE OF THE TRANSACTIONS HAVING TAKEN PLACE AND CONSIDERED BY THE ASSESSING AUTHORITIES COULD NOT BE CONSIDERED FOR ASSESSMENT BY WAY OF A SAMPLE SCRUTINY. WE ARE ALSO AWARE OF THE FACT THAT THE STATEMENT RECORDED U/S.132(4) CLEARLY ALIENATED THE CHARITABLE TRUST TO THIS FACT FINDING IN THE CASE OF THE COMPANIES WHEN THE AMOUNTS RECEIVED FROM THE STUDENTS WHETHER WERE TO BE CONSIDERED AS CUSTOMERS FOR GIVING A PIECE OF LAND WHICH THE ASSESSEE DID NOT ACQUIRE. IT IS NOT THE CASE OF THE INCOME TAX AUTHORITIES TO GIVE SANCTITY TO THE ASSESSEES MISREPRESENTATION OF TAKI NG EXTRA FEES AND NOT AGAINST CUSTOMERS ADVANCE. IN OTHER WORDS, THE BASIC CONCEPT OF ASSESSING BUT ON THE BASIS OF REAL INCOME TO BE BROUGHT TO TAX WHICH IN REALITY CAN ONLY EXISTS WHEN THE ASSETS HAVE BEEN CREATED. ON THE PERUSAL OF RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 15 THE FACTS, WE FIND T HAT LIABILITY HAS BEEN BROUGHT TO TAX WHEN THE EXPENSES ON ASSETS HELD AGAINST THAT HAS ALSO BEEN TAXED OR DISALLOWED. THIS IS DUPLICATION OF THE FACT FINDING OF THE ASSESSING AUTHORITIES WHICH ONLY HAVE BEEN GIVEN PART RELIEF BY THE LEARNED CIT(A) INSOFAR AS IT WAS TO THE ASSESSEES ADVANTAGE NOT TO DISCLOSE DISCREET INCOME GENERATED DURING THE INTERVENING YEARS WHEN THE CUSTOMERS REALIZED FOR CLAIMING REFUND. CREDITORS FOR EXPENSES CAN BE ALLOWED REFUND ONLY FROM INCOME . WE MAY ADD THAT THE ASSESSEE WAS WAITING FOR AN AMOUNT TO BE CRYSTALLIZED AS PER THE ASSESSING AUTHORITIES FINDING AND NOT BECAUSE BY TRYING TO AGITATE AN ORDER U/S.144. THE LEARNED COUNSEL OF THE ASSESSEE AS OF NOW HAS NOT BEEN ABLE TO QUANTIFY AS TO HOW A PARTICULAR CUSTOMER COULD BE AS KED TO PAY FURTHER AMOUNT AGAINST AN ASSET WHICH HE DOES NOT HOLD BUT HAS FURTHER GIVEN ADVANCE WHICH CLEARLY INDICATES THAT THE AMOUNT OF ADVANCE AND THE INCOME GENERATED ON ACCOUNT OF TRANSACTIONS IN LAND WAS ONLY THE BRAIN WAVE OF THE ASSESSEE TO HOLD B ACK THE APPROPRIATE INCOME WHICH COULD HAVE ARISEN TO BE TAXED AS REGULAR INCOME OR ON THE BASIS OF ISSUE OF NOTICE U/S.153A.THEREFORE, CONFIRMING THE ORDER OF THE LEARNED CIT(A) ON THE BASIS OF FACT AFTER OBTAINING THE REMAND REPORT WOULD BE UNJUSTIFIED T O THE REVENUE WHO ARE HANDICAPPED TO SEEK WHATEVER COOPERATION FROM THE ASSESSEE INSOFAR AS THE ASSESSEE NEVER CAME FORWARD TO EVEN EXPLAIN THE ORIGINAL RETURNS IN ACCORDANCE WITH THE PROVISIONS OF THE I.T.ACT. IT WOULD HAVE BEEN IN THE INTEREST OF JUSTIC E AT LEAST TO HAVE FILED RETURNS IN RESPONSE TO NOTICE U/S.153A FOR ALL THESE ASSESSEES BEFORE US TO CRYSTALLIZE THAT NO UNDISCLOSED INCOME CAN BE FOUND IN THE SEARCH AND SEIZURE PROCEDURE. IT WOULD BE ALSO UNFAIR TO THE ASSESSEE TO CONFIRM THE ORDERS OF T HE ASSESSING OFFICER ON THE QUANTUM APPEALED AGAINST BEFORE US INSOFAR AS THE ASSESSEE RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 16 WILL NOT BE ABLE TO JUSTIFY HOLDING AN ASSET IN THE MANNER THE INCOME HAS BEEN COMPUTED INSOFAR AS THE INCOME REMAINS UNCRYSTALISED IN THE IMPUGNED AYS IN THE CASE OF TH E ASSESSEE COMPANY TO THE EXTENT THAT THE ASSESSEE HAS MERELY DONE TEEMING AND LADING BY BRINGING ON RECORD MATERIAL WHICH IT ITSELF WOULD NOT BE ABLE TO DOCUMENTISE . A CUSTOMER WOULD NOT KNOW WHICH PORTION OF LAND HAD BEEN ALLOTTED AND THE ASSESSEE WOULD NOT KNOW WHICH REFUND HAS TO BE GIVEN BY CANCELLING WHICH PLOT OF LAND WHICH THE ASSESSEE NEVER ACQUI RED . WE ALSO FIND THAT THE ASSESSING OFFICER HAS ADOPTED A PARTICULAR METHOD FOR BRINGING TO TAX BY WAY OF A SAMPLE SCRUTINY AND NOT BECAUSE THE ASSESSING OFFICER COULD NOT PASS A BEST JUDGMENT ASSESSMENT ON THE BASIS OF ORIGINAL RETURNS FILED BEFORE IT WHICH CLEARLY INDICATES THAT THE AMOUNT OF INCOME HAS BEEN HELD AGAINST THE VERY CUSTOMERS WHO DO NOT KNOW AGAINST WHAT ASSET THE ASSESSEE IS HOLDING THEIR A DVANCE. 10. WE ARE THEREFORE, OF THE CONSIDERED VIEW THAT THE ISSUES REQUIRE RECONSIDERATION O N ALL FOURS. IT WOULD BE FOR THE INTEREST OF THE ASSESSEE TO FILE RETURNS OF INCOME FOR THE IMPUGNED AYS ON THE ISSUANCE OF NOTICE U/S.153A AS THE REQUIREMENT WAS TO COMPLY THE PROVISIONS OF SECTION 132 AND NOT BECAUSE IT WAS NOT THE ASSESSEE CASE TO BE SEARCHED HAVING ENTERED INTO SUCH MAGNITUDE OF TRANSACTIONS TO BE TOLD BY THE ASSESSING AUTHORITIES ABOUT THE UNDISCLOSED INCOME, IF ANY, IN THEIR HANDS. THE LEARNE D DR THEREFORE RIGHTLY POINTED OUT THAT IN CASE THE ASSESSEE DID NOT HAVE ANY UNDISCLOSED INCOME, IT OUGHT TO HAVE PAID TAX ON THE INCOME WHEN THE ASSESSING OFFICER WAS CONSTRAINT TO PASS THE ORDERS U/S.144 ON THE BASIS OF ORIGINAL RETURNS FILED WHICH RETU RNS DO NOT INDICATE THE MATERIAL FACTS AS HAVE BEEN BROUGHT OUT ON RECORD PURSUANT TO SEARCH CARRIED ON 30.9.2005. THE INCOME WAS HELD BY THE ASSESSEE WHICH AT LEAST SHOULD HAVE BEEN RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 17 RENDERED TO TAX ON THE ISSUE OF NOTICE U/S.143(2) AND NOT BECAUSE THE ASS ESSING OFFICER WAS CONSTRAINT TO PASS ORDERS BARED BY LIMITATION. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE SET ASIDE THE IMPUGNED ORDERS OF THE LEARNED CIT(A) AND RESTORE THE ISSUES FOR OF ALL THE ASSESSEES IN RESPECT OF ALL THE AYS UNDER CO NSIDERATION TO THE FILE OF THE ASSESSING OFFICER, WHO , ON THE BASIS OF RETURNS TO BE FILED BY THE ASSESSEE IN PURSUANCE TO NOTICE U/S.153A, WHICH THE LEARNED COUNSEL OF THE ASSESSEE HAS AGREED BEFORE US TO FILE WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER, WILL PASS THE ASSESSMENT ORDERS DE NOVO REASONABLY WITHIN A PERIOD OF SIX MONTHS THEREAFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEES OF BEING HEARD. THE ASSESSEES ARE ALSO DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER IN THIS REGARD . 11. IN THE RESULT, ALL THE APPEALS OF THE THREE ASSESSEES AND ALSO THE APPEALS OF THE REVENUE SHALL BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 14.12.2012 ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. RAJDHANI SYSTEMS & ESTATES (P) LTD HI - TECH ESTATES & PROMOTERS (P) LTD., AND VIGYAN BHARATI CHARITABLE TRUST. (GROUP CASES ) 18 - COPY OF THE ORDER FORWARDED TO: 1 . ASSESSEES : 1) RAJDHANI SYSTEMS & ESTATES (P) LTD ., PLOT NO.A - 103, SAHID NAGAR,BHUBANESWAR 751 007 2) HI - TECH ESTATES & PROMOTERS (P) LTD. , PLOT NO.A - 103, SAHID NAGAR,BH UBANESWAR 751 007 3) VIGYAN BHARATI CHARITABLE TRUST , PLOT NO.A - 1/173 SAHID NAGAR, BHUBANESWAR - 751 007 4) ASST.COMMISSIONER OF INCOME - TAX , CIRCLE 2(2), BHUBANESWAR. 2 DEPARTMENT : DY.COMMISSI - ONER OF INCOME - TAX, BHUBANEWAR 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVI I SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 10.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.12.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT R EGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..