M/s. Parshwa Construction, Nadiad V. The Dy.CIT.,Cent.Circle-2, Baroda

ITSSA 46/AHD/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0907 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Keywords: Procedural lapse; Block assessment; Documents seized
• Section: 143(3); 153A; 132; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER S.N. IT(SS)A NO. AY APPELLANT RESPONDENT 1-6 68 TO 73/AHD/2012 2003-04 TO 2008-09 M/S. PARSHWA CORPORATION, JALDHARA APARTMENTS, COLLEGE ROAD, NADIAD PAN: AACFP 3995 R DCIT, CENTRAL CIRCLE-2, BARODA 7-10 28 TO 31/AHD/2012 2005-06 TO 2008-09 M/S. SHIV BUILDERS, SHIVASHRAY COMPLEX, BHAGOL, NADIAD PAN : AAEFD 2263 J DCIT, CENTRAL CIRCLE-2, BARODA 11-14 32 TO 35/AHD/2012 2005-06 TO 2008-09 M/S. PADMAVATI CONSTRUCTION, 107, CITY POINT, NR. PARAS CINEMA, NADIAD PAN : AAGFP 8825 N DCIT, CENTRAL CIRCLE-2, BARODA 15-20 36 TO 41/AHD/2012 2003-04 TO 2008-09 M/S. SIDDHGIRI DEVELOPERS, VASANT VIHAR TOWNSHIP, PETLAD ROAD, NADIAD PAN : AAPFS 2404 M DCIT, CENTRAL CIRCLE-2, BARODA 21-26 42 TO 47/AHD/2012 2003-04 TO 2008-09 M/S. PARSHWA CONSTRUCTION, 115, SHIVASHRAY COMPLEX, NADIAD PAN : AAEFP 6639 G DCIT, CENTRAL CIRCLE-2, BARODA 27-31 48 TO 52/AHD/2012 2003-04 TO 2006-07 & 2008-09 M/S. R.B. CONSTRUCTION, SHIVASHRAY COMPLEX, PIJ BHAGOL, NADIAD PAN : AACFR 3677 A DCIT, CENTRAL CIRCLE-2, BARODA 32-35 53 TO 56/AHD/2012 2005-06 TO 2008-09 M/S. DHARNENDRA DEVELOPERS, NR. KIDNEY HOSPITAL, PETLAD ROAD, NADIAD PAN: AAEFD 2263 J DCIT, CENTRAL CIRCLE-2, BARODA 36-37 57 & 58/AHD/2012 2007-08 & 2008-09 M/S. MAHAVIR CONSTRUCTION, 10, KANT APARTMENTS, NR. KIDNEY HOSPITAL, NADIAD PAN : AANFM 0076 D DCIT, CENTRAL CIRCLE-2, BARODA IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 2 38-41 60 TO 63/AHD/2012 2005-06 TO 2008-09 M/S. DARSHAN ASSOCIATES, SHIVASHRAY COMPLEX, PIJ BHAGOL, NADIAD PAN : AABFD 2332 B DCIT, CENTRAL CIRCLE-2, BARODA 42-45 64 TO 67/AHD/2012 2003-04 TO 2005-06 & 2008-09 M/S. SAGAR DEVELOPERS, SHIVASHRAY COMPLEX, PIJ BHAGOL, NADIAD PAN : AAOFS 5847 B DCIT, CENTRAL CIRCLE-2, BARODA ASSESSEE(S) BY : SHRI S.N. SOPARKAR WITH SHRI P.M. MEHTA, AR REVENUE BY : SHRI R.I. PATEL, CIT-DR / DATE OF HEARING : 18.08.2015 / DATE OF PRONOUNCEMENT: 11.09.2015 / O R D E R PER BENCH : THIS BUNCH OF APPEALS BY DIFFERENT ASSESSEES HAVE B EEN FILED AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONE R OF INCOME-TAX (APPEALS)-IV, AHMEDABAD. SINCE THESE APPEALS INVOL VE COMMON ISSUES, THESE WERE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. IT(SS)A NOS. 68 TO 73/AHD/2012 ASSESSEES APPEALS FOR ASSESSMENT YEARS 2003-04 TO 2008-09 : ASSESSEE - PARSHWA CORP ORATION 2. THE GROUND NO.1 OF THE ASSESSEES APPEALS READS AS UNDER:- 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN REJECTING GROUND S NO. 1 AND 2 OF THE APPELLANTS APPEAL BEFORE HIM CHALLENGING TH E VALIDITY OF THE ASSESSMENT ORDER PASSED U/S 153C READ WITH SECTION 153A AND 143(3) OF THE INCOME-TAX ACT, 1961. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT A SEARCH ACTION U/S 132 OF TH E INCOME-TAX ACT WAS IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 3 CONDUCTED IN THE CASE OF SHRI RAMESHBHAI BABULAL SH AH ON 03.04.2008. DURING THE COURSE OF SEARCH, A LAPTOP WHICH WAS FOU ND FROM HIM WAS SEIZED. IN THE LAPTOP, SHRI RAMESHBHAI B. SHAH MAI NTAINED BOOKS OF ACCOUNTS IN TALLY SOFTWARE IN RESPECT OF 65 COMPANI ES, INCLUDING THE ASSESSEE. THE ASSESSING OFFICER ISSUED NOTICE U/S 1 53C R.W.S. 153A OF THE INCOME-TAX ACT TO THE ASSESSEE FOR ALL THE SIX ASSESSMENT YEARS, I.E., AYS 2003-04 TO AY 2008-09. HE REFERRED TO THE COPY OF THE NOTICE ISSUED U/S 153C WHICH IS PLACED ON RECORD BY THE RE VENUE. FROM SUCH NOTICE, HE POINTED OUT THAT (I) NO SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER OF PERSON SEARCHED, (II) NO SATIS FACTION WAS RECORDED BY THE ASSESSING OFFICER OF THE ASSESSEE BEFORE THE ISSUANCE OF THE NOTICE U/S 153C AND (III) IN THE NOTICE U/S 153C TH E ASSESSING OFFICER MENTIONED ABOUT HIS SATISFACTION; AND FROM THE SO-C ALLED SATISFACTION, IT IS CLEAR THAT IT IS TOTALLY VAGUE AND HAS NOT SPECI FIED WHETHER ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE /THING OR BOOKS OF ACCOUNT/DOCUMENTS BELONGING TO THE ASSESSEE WAS SEI ZED FROM SHRI RAMESHBHAI B. SHAH. SUCH A VAGUE SATISFACTION IS N O SATISFACTION IN THE EYE OF LAW. HE FURTHER POINTED OUT THAT IN THE ASSE SSMENT ORDER THE ASSESSING OFFICER HAS MENTIONED THAT FROM THE LAPTO P OF SHRI RAMESHBHAI B. SHAH, THE BOOKS OF ACCOUNTS OF THE AS SESSEE AND OTHER 65 ENTITIES WERE FOUND. THEREFORE, ON THAT BASIS TH E ASSESSING OFFICER HAS TAKEN ACTION U/S 153C IN THE CASE OF THE ASSESS EE. HE REFERRED TO SECTION 153C AND POINTED OUT THAT SECTION 153C WOUL D BE APPLICABLE IF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE/THING OR BOOKS OF ACCOUNT/DOCUMENTS SEIZED FROM THE PERSON SEARCHE D BELONGS TO THE ASSESSEE. HE SUBMITTED THAT, ADMITTEDLY, THE LAPTO P WAS BELONGING TO IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 4 SHRI RAMESHBHAI B. SHAH. THEREFORE, ANY DATA RECORD ED IN SUCH LAPTOP ALSO BELONGS TO SHRI RAMESHBHAI B. SHAH AND NOT TO THE ASSESSEE. SUCH DATA MAY BE RELATING TO DIFFERENT PERSONS, BUT IT C ANNOT BE SAID TO BELONGING TO VARIOUS DIFFERENT PERSONS. HE ALSO REF ERRED TO THE REPLY OF THE DEPARTMENTAL REPRESENTATIVE DATED 06.07.2015 AL ONGWITH WHICH THE DEPARTMENTAL REPRESENTATIVE HAS ENCLOSED THE RE PLY OF THE ASSESSING OFFICER DATED 06.07.2015. IN SUCH REPLY, THE ASSESSING OFFICER HAS REFERRED AN AFFIDAVIT OF SHRI RAMESHBHA I B. SHAH IN SUPPORT OF HIS CONTENTION THAT THE MATERIAL SEIZED FROM HIM WAS PERTAINING TO VARIOUS ENTITIES AND HE HAS ALSO OFFERED THE ADDITI ONAL INCOME OF RS. 6.5 CRORES ON BEHALF OF THE ENTIRE GROUP. HE POINTED OU T FROM THE AFFIDAVIT, ESPECIALLY PARAGRAPH NOS. 5.1 AND 5.2; AND STATED T HAT IN THE AFFIDAVIT SHRI RAMESHBHAI B. SHAH HAS CLEARLY MENTIONED THAT THE DIGITAL DATA OF TOTAL 65 ENTITIES FOUND FROM HIS LAPTOP WERE IN RES PECT OF CASH MANAGEMENT DONE BY HIM AND THE ENTIRE DIGITAL NOTIN GS IN THE FORM OF CAPITAL/LOAN ACCOUNT BELONGS TO HIM. HE CLEARLY MEN TIONED THAT THE OTHER GROUP CASES HAVE NOTHING TO DO WITH THE SAID CASH MOVEMENT OF THE FUNDS RECORDED IN THE LAPTOP. HE ALSO MENTIONE D IN PARAGRAPH NO.5.2 THAT THE PERSONS WHOSE NAMES ARE RECORDED IN THE LAPTOP HAVE NO ROLE/OBLIGATION TOWARDS THE SAID CIRCULATION OF FUNDS. THEREFORE, HE HAS OFFERED THE INCOME OF RS.6.5 CRORES IN HIS NAME BEFORE THE SETTLEMENT COMMISSION; AND NOT FOR AND ON BEHALF OF 65 ENTITIES. HE, THEREFORE, SUBMITTED THAT THE AFFIDAVIT SUPPORTS TH E CASE OF THE ASSESSEE THAT THE DATA, IF ANY, IN THE COMPUTER OF SHRI RAME SHBHAI B. SHAH WERE NEITHER BELONGING TO THE ASSESSEE NOR EVEN RELATING TO THE ASSESSEE IN VIEW OF THE AFFIDAVIT OF SHRI RAMESHBHAI B. SHAH. IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 5 4. IT IS FURTHER STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IT IS A SETTLED POSITION THAT, U/S 153C, THE ASSESSING OFFI CER OF THE PERSON SEARCHED HAS TO RECORD THE SATISFACTION THAT ANY MO NEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE/THING OR BOOKS OF ACCOUNT/DOCUMENTS BELONG TO THE PERSON OTHER THAN T HE PERSON SEARCHED. AFTER RECORDING SUCH SATISFACTION, HE HA S TO HANDOVER SUCH VALUABLE ARTICLE/THING OR BOOKS OF ACCOUNTS / DOCUM ENTS TO THE ASSESSING OFFICER OF SUCH OTHER PERSON TO WHOM SUCH VALUABLE ARTICLE/THING OR BOOKS OF ACCOUNT/DOCUMENT BELONGS. THEREAFTER, THE ASSESSING OFFICER OF SUCH OTHER PERSON HAS TO ISSUE NOTICE U/S 153C. ADMITTEDLY, NO SATISFACTION HAS BEEN RECORDED BY TH E ASSESSING OFFICER OF THE PERSON SEARCHED. NO VALUABLE ARTICLE/THING OR BOOKS OF ACCOUNTS/DOCUMENTS BELONGING TO THE ASSESSEE WAS FO UND FROM THE PERSON SEARCHED. THEREFORE, THE BASIC CONDITION FO R ISSUANCE OF NOTICE U/S 153C WAS NOT SATISFIED. HE, THEREFORE, SUBMITTE D THAT THE NOTICE ISSUED U/S 153C IS INVALID AND THE SAME MAY BE QUAS HED. IN SUPPORT OF HIS CONTENTION HE RELIED UPON THE FOLLOWING DECI SIONS:- A) MANISH MAHESHWARI VS. ACIT AND ANOTHER, (2007) 289 ITR 341 (SC) B) DCIT VS. LALITKUMAR M. PATEL, [2013] 36 TAXMANN.COM 554 (GUJARAT) C) SMT. REKHABEN THAKKAR VS. ACIT - ITAT AHMEDABAD BENCH, ORDER DATED 12.06.2015 IN ITA NOS. 3088 TO 3093/AHD/2008. D) ACIT VS. INLAY MARKETING PVT LTD - ITAT DELHI BENC H, ORDER DATED 14.11.2014 IN ITA NOS. 4200 TO 4202/DEL/2012. E) SHRI LALITKUMAR M. PATEL VS. DCIT - ITAT AHMEDABAD BENCH ORDER DATED 30.09.2011 IN IT(SS)A NO. 61/AHD/ 2007. IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 6 F) DSL PROPERTIES (P) LTD VS. DCIT, (2013) 60 SOT 088 (DELHI) 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. HE FILED WRITTEN SUBMISSIONS DATED 06.07.2015 ACCOMPANIED BY THE WRITTEN SUBMISS IONS OF THE ASSESSING OFFICER, COPY OF THE NOTICE ISSUED U/S 15 3C AND AFFIDAVIT OF SHRI RAMESHBHAI B. SHAH. HE AGAIN FILED ANOTHER WRI TTEN SUBMISSIONS IN WHICH HE HAS CONTENDED THAT THE SATISFACTION HAS DULY BEEN RECORDED BY THE ASSESSING OFFICER IN THE NOTICE ISSUED U/S 1 53C. HE REFERRED TO THE NOTICE AND POINTED OUT THAT IN THE NOTICE THE A SSESSING OFFICER HAS DULY MENTIONED THAT I AM SATISFIED THAT MONEY/BULLION/JEWELLERY/OTHER VALUABLE ARTICLES OR THINGS / BOOKS OF ACCOUNTS / D OCUMENTS SEIZED BELONG(S) TO YOU. THEREFORE, YOUR INCOME OF SIX ASSESSMENT YEAR S IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO PREVIOUS YEAR IN WH ICH THE AFORESAID SEARCH WAS CONDUCTED WAS MADE I.E. FROM A.YS. 2003-04 TO 2 008-09 IS REQUIRED TO BE ASSESSED / RE-ASSESSED, IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 153A R.W.S. 153C OF THE ACT. 6. HE FURTHER SUBMITTED THAT EVEN IF THERE ARE SOME PROCEDURAL IRREGULARITIES, THE SAME IS CURABLE, IN VIEW OF THE PROVISION OF SECTION 292B OF THE INCOME-TAX ACT. HE ALSO RELIED UPON TH E FOLLOWING DECISIONS:- A) BHARAT GINNING & PRESSING FACTORY VS. ITO, [2013] 3 2 TAXMANN.COM 322 (AHMEDABAD TRIB.) B) CIT VS. PANCHAJANYAM MANAGEMENT AGENCIES AND SERVIC ES, [2011] 333 ITR 281. IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 7 C) CIT VS. BIMBIS CREAMS & BAKES, [2012] 24 TAXMANN.CO M 143 (KERALA) ON THE STRENGTH OF THE ABOVE DECISIONS, IT WAS POIN TED OUT BY THE LD. CIT-DR THAT THERE IS NO REQUIREMENT OF RECORDIN G OF ANY FORMAL SATISFACTION BY THE ASSESSING OFFICER OF THE PERSON SEARCHED. HE ALSO SUBMITTED THAT IN THE CASE UNDER APPEAL, SINCE THE ASSESSING OFFICER OF THE PERSON SEARCHED AND THE ASSESSING OFFICER OF TH E ASSESSEE UNDER APPEAL WAS THE SAME, THERE WAS NO NECESSITY OF RECO RDING OF THE SATISFACTION AND HANDING OVER OF THE SEIZED MATERIA L. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) WHEREIN HE H AS CONSIDERED ALL THE ISSUES RAISED BY THE ASSESSEE IN THIS REGARD SH OULD BE UPHELD. 7. IN THE REJOINDER, IT WAS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS RELIED UPON THE DECI SIONS OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. PANCHAJANY AM MANAGEMENT AGENCIES AND SERVICES, [2011] 333 ITR 281, WHICH IS FOLLOWED BY THEIR LORDSHIP IN THE SECOND DECISION IN THE CASE OF CIT VS. BIMBIS CREAMS & BAKES, [2012] 24 TAXMANN.COM 143, RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE. HE POINTED OUT THAT SU BSEQUENTLY THE HONBLE KERALA HIGH COURT IN THE CASE OF DR. T.M. K URIACHAN, [2012] 23 TAXMANN.COM 28 (KERALA), DID NOT AGREE WITH THE EAR LIER DECISION OF KERALA HIGH COURT IN THE CASE OF PANCHAJANYAM MANAG EMENT AGENCIES AND SERVICES (SUPRA). HE, THEREFORE, SUBMITTED THAT IN THE SUBSEQUENT DECISION THE HONBLE KERALA HIGH COURT RELIED UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT AND ANOTHER, (2007) 289 ITR 341 (SC), AND HELD THAT IN THE ABSENCE OF IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 8 SATISFACTION RECORDED U/S 158BD, THE ISSUANCE OF NO TICE U/S 158BC IS INVALID. THE LD. COUNSEL ALSO POINTED OUT THAT THE DECISION OF ITAT, AHMEDABAD BENCH, RELIED UPON BY THE LD. DEPARTMENTA L REPRESENTATIVE, IS PRIOR TO THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DCIT VS. LALITKUMAR M. PATEL, [2013] 36 TAXMANN.COM 554 (GUJARAT). HE FURTHER SUBMITTED THA T THE ITAT, AHMEDABAD BENCH ALSO FAILED TO TAKE NOTE OF THE DEC ISION OF HONBLE APEX COURT IN THE CASE MANISH MAHESHWARI (SUPRA). THE ITAT, AHMEDABAD BENCH MAINLY FOLLOWED THE DECISION OF HON BLE KERALA HIGH COURT IN THE CASE OF PANCHAJANYAM MANAGEMENT A GENCIES AND SERVICES (SUPRA) WHICH IS SUBSEQUENTLY NOT ACCEPTED BY KERALA HIGH COURT ITSELF. HE, THEREFORE, REITERATED THAT THE NO TICE ISSUED U/S 153C FOR ALL THE YEARS MAY BE QUASHED. 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. SECTION 153C OF THE INCOME- TAX ACT, 1961 READS AS UNDER:- '153C. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN S ECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN T HE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHAL L BE 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 REASSE SS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF S ECTION 153A:].' IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 9 9. FROM THE ABOVE, IT IS EVIDENT THAT ACTION UNDER SECTION 153C CAN BE TAKEN IN RESPECT OF ANY OTHER PERSON THAN THE PE RSON SEARCHED IF THE ASSESSING OFFICER OF THE PERSON SEARCHED IS SATISFI ED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS BELONG TO A PERSON OTHER THAN THE PERS ON SEARCHED. IN SUCH CIRCUMSTANCES, HE SHALL HAND OVER TO THE ASSES SING OFFICER OF SUCH OTHER PERSON MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLE/ THING OR BOOKS OF ACCOUNT/DOCUMENTS. THEREAFTER, THE ASSE SSING OFFICER OF SUCH OTHER PERSON SHALL PROCEED AGAINST THE SAID PE RSON TO ASSESS OR REASSESS HIS INCOME IN ACCORDANCE WITH THE PROVISIO NS OF SECTION 153A. THEREFORE, RECORDING OF SATISFACTION BY THE ASSESSI NG OFFICER OF THE PERSON SEARCHED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE/THING OR BOOKS OF ACCOUNT/DOCUMENTS SEIZED BELONG TO THE PERSON OTHER THAN THE PERSON SEARCHED IS A SINE QUA NON FOR INITIATING ACTION UNDER SECTION 153C. THIS INTERPRETATION OF S ECTION 153C BY US IS SUPPORTED BY THE DECISION OF HON'BLE APEX COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT AND ANOTHER - (2007) 289 ITR 341 (SC) WHEREIN THEIR LORDSHIPS AT PAGE 348 HELD AS UNDER:- 'THE CONDITION PRECEDENT FOR INVOKING A BLOCK ASSES SMENT IS THAT A SEARCH HAS BEEN CONDUCTED UNDER SECTION 132, OR DOC UMENTS OR ASSETS HAVE BEEN REQUISITIONED UNDER SECTION 132A. THE SAI D PROVISION WOULD APPLY IN THE CASE OF ANY PERSON IN RESPECT OF WHOM SEARCH HAS BEEN CARRIED OUT UNDER SECTION 132A OR DOCUMENTS OR ASSE TS HAVE BEEN REQUISITIONED UNDER SECTION 132A. SECTION 158BD, HO WEVER, PROVIDES FOR TAKING RECOURSE TO A BLOCK ASSESSMENT IN TERMS OF SECTION 158BC IN RESPECT OF ANY OTHER PERSON, THE CONDITIONS PRECEDE NT WHERE FOR ARE : (I) SATISFACTION MUST BE RECORDED BY THE ASSESSING OFFI CER THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THA N THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 O F THE ACT; (II) THE IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 10 BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS SEIZE D OR REQUISITIONED HAD BEEN HANDED OVER TO THE ASSESSING OFFICER HAVIN G JURISDICTION OVER SUCH OTHER PERSON; AND (III) THE ASSESSING OFFICER HAS PROCEEDED UNDER SECTION 158BC AGAINST SUCH OTHER PERSON. THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISION S OF SECTION 158BD, THUS, ARE REQUIRED TO BE SATISFIED BEFORE THE PROVI SIONS OF THE SAID CHAPTER ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WHOSE PREMISES HAD BEEN SEARCHED OR WHOSE DOCUMENTS AND OTHER ASSETS HAD BEEN REQUISITIONED UNDER SECTION 132A OF THE AC T.' 10. THOUGH THE ABOVE DECISION OF HONBLE APEX COURT IS WITH REGARD TO ISSUANCE OF NOTICE U/S 158BD; HOWEVER, THE LANGU AGE OF SECTION 153C AND 158BD IS SIMILAR; THEREFORE, THE ABOVE DEC ISION OF HONBLE APEX COURT WOULD BE SQUARELY APPLICABLE WHILE CONSI DERING THE VALIDITY OF ISSUANCE OF NOTICE U/S 158BC. 11. WE FIND THAT HON'BLE GUJARAT HIGH COURT, IN TH E CASE OF CIT VS. MEGHMANI ORGANICS LIMITED VIDE TAX APPEAL NO.2077 O F 2009, COMPARED THE LANGUAGE OF SECTION 153C AND SECTION 1 58BD AT INTERNAL PAGE 6 OF THEIR ORDER AND HELD AS UNDER:- 'SECTION 153C WHICH IS SIMILARLY WORDED TO SECTION 158BD OF THE ACT, PROVIDES THAT WHERE THE ASSESSING OFFICER IS SATISF IED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BEL ONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153-A HE SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON. HOW EVER, THERE IS A DISTINCTION BETWEEN THE TWO PROVISIONS INASMUCH AS UNDER SECTION 153C NOTICE CAN BE ISSUED ONLY WHERE THE MONEY, BUL LION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO SUCH OTHER PERSON, WHERE AS UNDER SECTION 158BD IF THE ASSESSING OFFICER IS SATISFIED THAT AN Y UNDISCLOSED INCOME IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 11 BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH R ESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS WERE REQUISITIONED UNDER SECTIO N 132A, HE SHALL PROCEED AGAINST SUCH OTHER PERSON UNDER SECTION 158 BC.' 12. FROM THE ABOVE AND ALSO FROM THE COMPARISON OF LANGUAGE OF SECTIONS 153C AND 158BD, WE FIND THAT THE CONDITION FOR RECORDING SATISFACTION BY THE ASSESSING OFFICER OF THE PERSON SEARCHED IS PRESENT IN BOTH THE CASES. IN SECTION 158BD, THE ASSESSING OFFICER OF THE PERSON SEARCHED IS TO BE SATISFIED THAT ANY UNDISCLOSED IN COME BELONG TO ANY PERSON OTHER THAN THE PERSON SEARCHED, WHILE, IN TH E CASE OF SECTION 153C, THE ASSESSING OFFICER OF THE PERSON SEARCHED IS TO BE SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE/THING OR BOOKS OF ACCOUNT/DOCUMENTS BELONG TO A PERSON OTHER THAN THE PERSON SEARCHED. THEREAFTER, THE SUBSEQUENT PROCEDURE IN BOTH SECTIONS 158BD AND 153C IS THE SAME, I.E., THE ASSESSING OFF ICER OF THE PERSON SEARCHED HAS TO HAND OVER THE BOOKS OF ACCOUNT, DOC UMENTS OR ASSET SEIZED TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THEREAFTER, THE ASSESSING OFFICER OF SUC H OTHER PERSON HAS TO PROCEED TO ASSESS SUCH OTHER PERSON. THUS, THE B ASIC CONDITION OF RECORDING THE SATISFACTION BY THE ASSESSING OFFICER OF THE PERSON SEARCHED AS WELL AS HANDING OVER OF BOOKS OF ACCOUN T, OTHER DOCUMENTS OR ASSETS SEIZED TO THE ASSESSING OFFICER OF SUCH OTHER PERSON IS PRESENT IN BOTH THE SECTIONS. TO THAT EXT ENT, THE DECISION OF HON'BLE APEX COURT IN THE CASE OF MANISH MAHESHWARI (SUPRA) WOULD BE SQUARELY APPLICABLE WHILE INTERPRETING SECTION 1 53C. 13. THE LD. DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE O F PANCHJANYAM IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 12 MANAGEMENT AGENCIES AND SERVICES (SUPRA) AND BIMBIS CREAMS & BAKES (SUPRA). WE FIND THAT THE HONBLE KERALA HI GH COURT IN THE CASE OF BIMBIS CREAMS & BAKES (SUPRA) FOLLOWED THE EARLI ER DECISION IN THE CASE OF PANCHJANYAM MANAGEMENT AGENCIES AND SERVICE S (SUPRA). THE DECISION OF ITAT, AHMEDABAD BENCHES RELIED UPON BY THE LD. CIT-DR IN THE CASE OF BHARAT GINNING & PRESSING FACTORY (S UPRA) ALSO FOLLOWED THE DECISION OF HONBLE KERALA HIGH COURT IN THE CA SE OF PANCHJANYAM MANAGEMENT AGENCIES AND SERVICES (SUPRA). WE FIND THAT SUBSEQUENTLY THE HONBLE KERALA HIGH COURT IN THE C ASE OF DR. T.M. KURIACHAN, [2012] 23 TAXMANN.COM 28 (KERALA), CONSI DERED THE DECISION OF EARLIER DIVISION BENCH IN THE CASE OF PANCHJANYA M MANAGEMENT AGENCIES AND SERVICES (SUPRA) AND DID NOT AGREE WIT H THE VIEW EXPRESSED THEREIN. THE RELEVANT FINDING OF THEIR LO RDSHIPS IN PARAGRAPH NO.6 OF THE REPORT, I.E., [2012] 23 TAXMA NN.COM 28 (KERALA), READS AS UNDER:- 6. THE REVENUE HAS BROUGHT TO OUR NOTICE THE DECIS ION OF THIS COURT IN COMMISSIONER OF INCOME TAX V. PANCHAJANYAM MANAGEME NT AGENCIES & SERVICES, REPORTED IN [2011] 333 ITR 281 (KER.), WHEREIN THE DIVISION BENCH OF THIS COURT OF WHICH ONE OF US (CN R(J)) IS A MEMBER, HAS TAKEN THE VIEW THAT THE SATISFACTION UNDER SECT ION 158BD IS ONLY ABOUT EVIDENCE OF UNDISCLOSED INCOME OF A PERSON OT HER THAN THE ASSESSEE SEARCHED AND THERE IS NO REQUIREMENT TO RECORD THE SAME; AND SUCH SATISFACTION BEING ONLY FOR TRANSFERRING THE FILE F ROM ONE OFFICER TO ANOTHER, THERE IS NO REQUIREMENT FOR THE OFFICER TR ANSFERRING THE FILE TO RECORD THE REASON FOR TRANSFER. WHEREVER SATISFACTI ON IS REQUIRED TO BE RECORDED BEFORE ISSUING NOTICE OF ASSESSMENT, THE A CT SPECIFICALLY PROVIDES FOR IT. REFERENCE MAY BE MADE TO SECTION 1 48(2) OF THE ACT, WHICH MANDATES THAT BEFORE ISSUING REASSESSMENT NOT ICE FOR MAKING INCOME ESCAPING ASSESSMENT, THE OFFICER HAS TO RECO RD HIS REASONS FOR DOING SO. ON THE OTHER HAND, IN CASE WHERE SEARCH I S MADE UNDER SECTION 132 OR DOCUMENTS OR ACCOUNTS ARE REQUISITIO NED UNDER SECTION 132A, CHAPTER XIVB IN SECTION 158BC PROVIDES FOR IN ITIATION OF IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 13 ASSESSMENT OF UNDISCLOSED INCOME OF BLOCK PERIOD, W HICH IS BY CALLING FOR A RETURN IN FORM NO.2B. IN FACT, SECTION 158BC DOES NOT REQUIRE THE ASSESSING OFFICER TO RECORD HIS SATISFACTION FOR IS SUING NOTICE FOR ASSESSMENT OF UNDISCLOSED INCOME FOR THE BLOCK PERI OD FOR ASSESSING THE ASSESSEE SEARCHED OR WHOSE ACCOUNTS WERE CALLED FOR UNDER SECTION 132A OF THE ACT. IN FACT, SECTION 158BD IS ONLY AN ENABL ING PROVISION TO ASSESS ANY OTHER ASSESSEE OTHER THAN THE SEARCHED A SSESSEE IF IN THE COURSE OF SEARCH OF ANOTHER ASSESSEE EVIDENCE OF UN DISCLOSED INCOME IS RECEIVED IN RESPECT OF THE ASSESSEE WHO IS NOT SEAR CHED. HOWEVER, THE ASSESSMENT PURSUANT TO THE ENABLING PROVISION I.E. UNDER SECTION 158BD ALSO IS AN ASSESSMENT UNDER SECTION 158BC AND THE PROCEDURE CONTEMPLATED IS ALSO ONE AND THE SAME. IN FACT, WHA T SECTION 158BD SAYS IS THAT WHEN THE EVIDENCE COLLECTED IN SEARCH OF AN ASSESSEE REVEALED UNDISCLOSED INCOME OF ANOTHER ASSESSEE, WHO IS NOT SEARCHED, THE MATERIAL OR EVIDENCE SO RECEIVED CAN BE THE BASIS F OR MAKING ASSESSMENT UNDER SECTION 158BC OF THE ASSESSEE WHO IS NOT SEAR CHED. THE SATISFACTION REQUIRED UNDER SECTION 158BD FOR THE O FFICER TO TRANSFER THE MATERIAL AND EVIDENCE GATHERED DURING SEARCH OR AFTER REQUISITION OF ACCOUNTS IS ONLY TO JUSTIFY TRANSFER OF THE FILE TO THE ASSESSING OFFICER, WHO HAS JURISDICTION TO ASSESS THE ASSESSEE WHO IS NOT SEARCHED BUT IN RESPECT OF WHOSE UNDISCLOSED INCOME EVIDENCE IS GAT HERED. IN FACT, IT IS ABSOLUTELY LEFT TO THE OFFICER TO WHOM THE FILE IS TRANSFERRED UNDER SECTION 158BD TO CONSIDER THE TRANSFERRED EVIDENCE AND MATERIALS AND TO DECIDE WHETHER TO PROCEED WITH ASSESSMENT AGAINS T THAT ASSESSEE UNDER SECTION 158BC OR NOT. SO MUCH SO, THE SATISFA CTION FOR TRANSFERRING A FILE BY ONE OFFICER TO ANOTHER IS ON LY PRIMA FACIE SATISFACTION ON JURISDICTION AND ON IDENTIFYING THE ASSESSING OFFICER, WHO HAS THE JURISDICTION OVER THE OTHER ASSESSEE, T HE MATERIALS AND EVIDENCE COLLECTED IN SEARCH OR REQUISITION ARE TRA NSFERRED. THE SATISFACTION FOR INITIATION AND COMPLETION OF ASSES SMENT UNDER SECTION 158BD IS OBVIOUSLY THAT OF THE ASSESSING OFFICER TO WHOM TRANSFER IS MADE BY THE OFFICER WHO CONDUCTED SEARCH. EVEN THOUGH THE ABOVE IS OUR VIEW AND WE HAVE TAKEN SUCH A VIEW IN THE DECISION ABOVE REFERRED, THE LEARNED COUNSEL FO R THE RESPONDENT ASSESSEE HAS REFERRED TO THE DECISION OF THE SUPREM E COURT IN MANISH MAHESHWARI V. ASST. COMMISSIONER OF INCOME TAX & AN OTHER, REPORTED IN 289 ITR 341, WHEREIN THE SUPREME COURT HAS TAKEN THE VIEW THAT IF SATISFACTION IS NOT RECORDED BY THE ASSESSING OFFIC ER FOR TRANSFERRING THE FILE UNDER SECTION 158BD, THE ASSESSMENT MADE UNDER SECTION 158BC IS INVALID. SINCE THE DECISION OF THE SUPREME COURT ABOVE REFERRED IS IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 14 BINDING ON US, WE HAVE TO ONLY DISMISS THE DEPARTME NTAL APPEAL. WE, ACCORDINGLY, DISMISS THE APPEAL FILED BY THE REVENU E. 14. THUS, THE CONTENTION OF THE LD. DEPARTMENTAL RE PRESENTATIVE THAT NO SATISFACTION IS REQUIRED TO BE RECORDED BEFORE T HE ISSUANCE OF NOTICE U/S 153C CANNOT BE ACCEPTED. WE ALSO FIND THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF LALITKUMAR M. PATEL (SUPR A) HAS UPHELD THE DECISION OF ITAT, AHMEDABAD BENCH IN THE CASE OF LA LITKUMAR M. PATEL IN IT(SS)A NO.61/AHD/2007 (SUPRA). IN THE AF ORESAID CASE ALSO THE ARGUMENT OF THE REVENUE WAS SIMILAR, I.E., WHEN THE ASSESSING OFFICER IN THE CASE OF PERSON SEARCHED AND THE ASSE SSEE IN WHOSE CASE THE NOTICE U/S 158BD WAS ISSUED IS THE SAME, THERE IS NO REQUIREMENT OF RECORDING OF ANY SATISFACTION. HOWEVER, THE HON BLE JURISDICTIONAL HIGH COURT REJECTED THE REVENUES CONTENTION AND UP HELD THE ORDER OF THE ITAT WHICH HAS QUASHED THE NOTICE ISSUED U/S 15 8BD WITHOUT RECORDING THE SATISFACTION OF THE ASSESSING OFFICER OF THE PERSON SEARCHED. THE RELEVANT FINDING OF THE HONBLE JURIS DICTIONAL HIGH COURT IN PARAGRAPH NOS. 5-8 OF THE REPORT, I.E., 36 TAXMANN.COM 554, READS AS UNDER:- 5. IN THE PRESENT APPEAL THUS, WE ARE ESSENTIALL Y CONCERNED WITH THE QUESTION WHETHER THE TRIBUNAL RIGHTLY QUASHED AND S ET ASIDE THE NOTICE UNDER SECTION 158BD AND THE ASSESSMENT ORDER PASSED INCASE OF THE ASSESSEE RESPONDENT ON THE GROUND THAT THERE WAS NO VALID SATISFACTION RECORDED BY THE ASSESSING OFFICER IN CASE OF THE PE RSON SEARCHED PRIOR TO ISSUANCE OF THE NOTICE TO THE ASSESSEE RESPONDENT. 6. WE HAVE HEARD LEARNED COUNSEL SHRI K.M. PARIKH F OR THE DEPARTMENT WHO HAS FERVENTLY ARGUED BEFORE US THAT THE ASSESSI NG OFFICER SHRI A.K. SINHA WAS THE ASSESSING OFFICER IN CASE OF BOTH, SE ARCHED AND NON SEARCHED ASSESSEES. HE ALSO FURTHER URGED THAT THE SATISFACTION RECORDED BY THE ASSESSING OFFICER IN CASE OF PRESENT ASSESSE E SHALL HAVE TO BE IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 15 CONSTRUED IN CASE OF SEARCHED ASSESSEE ONLY. THE TR IBUNAL INCORRECTLY APPRECIATED THE LAW ON THE SUBJECT AND ALSO DID NOT APTLY APPLY THE CORRECT RATIO TO THE FACTS OF THE CASE OF THE ASSES SEE. THEREFORE, THE ORDER REQUIRES INTERFERENCE. 7. LEARNED SENIOR COUNSEL SHRI J.P. SHAH APPEARING F OR THE ASSESSEE RESPONDENT RELYING ON VARIOUS CASE LAWS HAS URGED T HAT THIS APPEAL DESERVES NO CONSIDERATION ON MERITS INASMUCH AS THE MANDATORY REQUIREMENTS AS SET OUT BY THE APEX COURT IN CASE O F MANISH MAHESHWARI V. ASST. COMMISSIONER OF INCOME-TAX AND ANOTHER REPORTED IN (2007) 289 ITR 341(SC) HAVE NOT BEEN FULFILLED. HE FURTHER URGED THAT THE TRIBUNAL WHILE DEALING WITH THE ISSUE IN Q UESTION HAS APPROPRIATELY SCANNED THE ENTIRE MATERIALS AND HAS RIGHTLY ARRIVED AT A CORRECT DECISION WHICH CALLS FOR NO INTERVENTION. 8. ON THUS HEARING BOTH THE SIDES AND ON EXAMINATIO N OF THE ORDER IMPUGNED AND THE MATERIALS PRODUCED BEFORE US, FOR THE REASONS TO FOLLOW HEREIN-IN-AFTER, WE ARE OF THE OPINION THAT THIS APPEAL MERITS NO CONSIDERATION AND DESERVES DISMISSAL. 15. THEIR LORDSHIPS REITERATED THE SAME VIEWS AGAIN IN PARAGRAPH NOS. 11 TO 14 OF THE JUDGMENT WHICH READS AS UNDER: - 11. THUS THE LAW LAID DOWN ON THE SUBJECT IS VERY CLEAR THAT FOR TAKING RECOURSE TO BLOCK ASSESSMENT UNDER SECTION 158BC IN RELATION TO THE PERSON NOT SEARCHED, WHENEVER SEARCH HAS BEEN CONDU CTED UNDER SECTION 132 OR THE DOCUMENTS HAVE BEEN REQUISITIONED UNDER SECTION 132A, THE ASSESSING OFFICER OF THE SEARCHED PERSON NEEDS TO R ECORD HIS SATISFACTION THAT UNDISCLOSED INCOME BELONGS TO THE PERSON, OTHE R THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS CARRIED OUT UNDER S ECTION 132 OF THE ACT. HE IS ALSO REQUIRED TO HAND OVER THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS SEIZED, TO THE ASSESSING OFFICE R HAVING JURISDICTION OVER SUCH PERSON AND THEREAFTER, THE ASSESSING OFFI CER WHO HAS THE JURISDICTION WOULD PROCEED UNDER SECTION 158BC AGAI NST SUCH PERSON WHO HAS NOT BEEN SEARCHED. 12. IN THE INSTANT CASE, AS COULD BE NOTED FROM THE RECORD, SEARCH HAD BEEN CARRIED OUT IN CASE OF JAYRAJ GROUP. ON EXAMINA TION OF THE FILES PRODUCED BEFORE US BY THE LEARNED COUNSEL SHRI PARI KH, IT CAN BE SEEN IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 16 THAT THE SATISFACTION RECORDED BY THE ASSESSING OFF ICER IS IN THE CASE OF THIS VERY ASSESSEE. ON PERTINENTLY QUESTIONED ABOUT THE SATISFACTION OF THE ASSESSING OFFICER IN CASE OF THE SEARCHED PERSO N (I.E. JAYRAJ GROUP), REVENUE IS UNABLE TO POINT OUT ANY SUCH SATISFACTIO N OF ASSESSING OFFICER IN CASE OF JAYRAJ GROUP. IT HAD BEEN EMPHATI CALLY ARGUED BEFORE US THAT THE ASSESSING OFFICER BEING THE SAME PERSON I.E. SHRI A.K. SINHA, SUCH SATISFACTION WHEN RECORDED IN CASE OF T HE PRESENT ASSESSEE SHOULD BE CONSIDERED AND CONSTRUED AS A DUE COMPLIA NCE UNDER THE PROVISIONS AND THERE WOULD NOT BE ANY OCCASION TO H ANDOVER THE MATERIALS TO HIMSELF BEING THE VERY OFFICER. 13.AS FAR AS SECOND REQUIREMENT OF ENDOWING THE PAP ERS TO THE ASSESSING OFFICER HAVING THE JURISDICTION TO INITIA TE THE PROCEEDINGS UNDER SECTION 158BC IS CONCERNED, LEARNED COUNSEL M R.PARIKH IS RIGHT AND IS ALSO NOT BEING DISPUTED BY THE RESPONDENT TH AT SUCH FORMAL ORDER OF TRANSFER TO ONESELF WOULD NEITHER BE WARRANTED N OR IN ANY MANNER AFFECT THE VALIDITY OF THE PROCEEDINGS. 14. HOWEVER, THE VITAL AND MANDATORY REQUIREMENT O F RECORDING THE SATISFACTION UNDER SECTION 158BD IS CONCERNED, AS H AS BEEN RIGHTLY NOTED BY THE TRIBUNAL, SUCH SATISFACTION IS ABSENT AS FAR AS JAYRAJ GROUP IS CONCERNED IN WHOSE CASE SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT HAS BEEN CARRIED OUT BY THE DEPARTMENT. AS SUCH AN ESSENTIAL REQUIREMENT PRIOR TO INITIATING THE PROCEEDINGS UND ER SECTION 158BC, HAS NOT BEEN FULFILLED, THE TRIBUNAL IS JUSTIFIED I N QUASHING THE NOTICE ISSUED AGAINST THE ASSESSEE RESPONDENT AND THE ASSE SSMENT ORDER PASSED PURSUANT THERETO. AS THE ORDER OF THE TRIBUNAL IS I N CONSONANCE WITH THE LAW LAID DOWN ON THE SUBJECT IN CASE OF MANISH MAHESHWARI (SUPRA), WE FIND NO REASON TO INTERFERE WITH THE SA ME. 16. IN VIEW OF THE ABOVE DECISION OF THE HONBLE JUR ISDICTIONAL HIGH COURT AS WELL AS APEX COURT, WE ARE OF THE OPINION (1) SATISFACTION IS TO BE RECORDED BY THE ASSESSING OFF ICER OF THE PERSONS SEARCHED; (2) AFTER RECORDING THE SATISFACTION, ASSESSING OFFICER OF PERSON SEARCHED SHOULD HANDOVER THE SEIZED MATERIAL TO THE ASSESSING OFFICER OF SUCH OTHER PERSON; IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 17 (3) THEREAFTER, THE ASSESSING OFFICER OF SUCH OTHER PER SON SHOULD ISSUE NOTICE U/S 153C. 17. IN THE CASE UNDER APPEAL BEFORE US, ADMITTEDLY , NO SATISFACTION IS RECORDED BY THE ASSESSING OFFICER OF THE PERSON SEA RCHED. IN FACT, NO SATISFACTION IS RECORDED BY THE ASSESSING OFFICER O F THE ASSESSEE UNDER APPEAL BEFORE US, PRIOR TO ISSUING NOTICE U/S 153C. ONLY IN THE NOTICE U/S 153C, SATISFACTION IS CLAIMED TO HAVE BEEN RECO RDED. FOR READY REFERENCE, WE REPRODUCE HEREIN BELOW THE COPY OF TH E NOTICE ISSUED FOR ASSESSMENT YEAR 2003-04. NOTICE UNDER SECTION 153 R.W.S. 153A OF THE INCOME- TAX ACT, 1961 DATE : 29.08.2008 PAN : AACFP 3995 R AY 2003-04 TO M/S. PARSHWA CORPORATION JALDHARA APARTMENT OPP. MAHA GUJARAT HOSPITAL, COLLEGE ROAD, NADIAD A SEARCH U/S 132 OF THE INCOME-TAX ACT WAS CONDUCTED/REQUISITION MADE U/S 132A OF THE INCOME-T AX ACT IN THE GROUP CASES OF RAMESHBHAI BABUBHAI SHAH & OTHER GRO UP OF CASES ON 03.04.2008. I AM SATISFIED THAT THE MONEY/BULLION/J EWELLERY/OTHER VALUABLE ARTICLES OR THINGS/BOOKS OF ACCOUNT/DOCUME NTS SEIZED BELONG(S) TO YOU. THEREFORE, YOUR INCOME OF SIX ASSESSMENT Y EARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO PREVIOUS YEAR IN WHICH THE AFORESAID SEARCH WAS CONDUCTED WAS MADE I.E., FROM A.YS. 2003-04 TO 2008-09 IS REQUIRED TO BE ASSESSED/RE-ASSESSED, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A R.W.S. 153C OF THE ACT. YOU ARE, THEREFORE, REQUIRED TO FURNISH HOUR RETURN OF INCOME UNDER SEC TION 153C OF THE IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 18 INCOME-TAX ACT, 1961 FOR A.Y. 2003-04 BEING ONE OUT OF THE ABOVE SIX ASSESSMENT YEARS IN RESPECT OF WHICH YOU ARE ASSESS ABLE UNDER THE INCOME-TAX ACT, 1961. THE RETURN SHOULD BE FILED I N THE APPROPRIATE FORM AS PRESCRIBED IN RULE 12 OF THE INCOME-TAX RUL ES, 1962. IT SHOULD BE DULY VERIFIED AND SIGNED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 140 OF THE SAID ACT AND DELIVERED AT MY OFFICE AS M ENTIONED ABOVE WITHIN FORTY FIVE DAYS FROM THE SERVICE OF THIS NOT ICE. SD/- (ILA PARMAR) ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, BARODA 18. FROM THE ABOVE, IT IS CLEAR NO SATISFACTION IS RECORDED BY THE ASSESSING OFFICER OF PERSON SEARCHED. THE ASSESSIN G OFFICER OF ASSESSEE DID NOT RECORD ANY SATISFACTION PRIOR TO I SSUE OF NOTICE U/S 153C. THE SO-CALLED SATISFACTION RECORDED IN THE NO TICE U/S 153C IS TOTALLY VAGUE. IT HAS NOT SPECIFIED WHICH VALUABLE ARTICLES/THINGS/BOOKS OF ACCOUNTS/DOCUMENTS WERE FO UND FROM SHRI RAMESHBHAI B. SHAH WHICH BELONGS TO THE ASSESSEE. I N THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS MENTIONED THAT IN T HE LAPTOP OF SHRI RAMESHBHAI B. SHAH THE DATA PERTAINING TO THE ASSES SEE WERE FOUND AND ON THAT BASIS NOTICES U/S 153C HAVE BEEN ISSUED . HOWEVER, IN THE NOTICE U/S 153C, WHEREIN THE ASSESSING OFFICER IS C LAIMED TO HAVE BEEN RECORDED THE SATISFACTION FOR ISSUE OF THE NOTICE, THERE IS NO MENTION ABOUT SUCH LAPTOP OR THE ALLEGED DATA IN SUCH LAPTO P WHICH IS CLAIMED TO BE BELONGED TO THE ASSESSEE. IN VIEW OF ABOVE, W E HAVE NO HESITATION TO HOLD THAT THE BASIC CONDITION FOR ISSUE OF NOTIC E U/S 153C HAS NOT BEEN SATISFIED. 19. THE LD. CIT-DR HAS CLAIMED THAT ANY PROCEDURAL IRREGULARITY IN THE ISSUANCE OF NOTICE U/S 153C IS A CURABLE DEFECT AS PROVIDED IN IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 19 SECTION 292B OF THE INCOME-TAX ACT. WE ARE UNABLE TO AGREE WITH THIS CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE. SECTION 292B READS AS UNDER:- 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUA NCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEE DING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCOR DING TO THE INTENT AND PURPOSE OF THIS ACT. 20. FROM THE ABOVE, IT IS EVIDENT THAT AS PER SECTI ON 292B, ANY NOTICE, SUMMONS OR OTHER PROCEEDING WOULD NOT BE INVALID ME RELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN O F INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING PRO VIDED SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCOR DING TO THE INTENT AND PURPOSE OF THIS ACT. HOWEVER, BEFORE ISSUING O F NOTICE U/S 153C, THE SATISFACTION OF THE ASSESSING OFFICER OF THE PE RSON SEARCHED IS ESSENTIAL FOR ASSUMING THE JURISDICTION U/S 153C BY THE ASSESSING OFFICER OF SUCH OTHER PERSON. THEREFORE, IN THE ABS ENCE OF SATISFACTION BY THE ASSESSING OFFICER OF THE PERSON SEARCHED, TH E ASSESSING OFFICER OF THE PRESENT ASSESSEE DOES NOT GET ANY JURISDICTI ON TO ISSUE SUCH NOTICE. ACCORDINGLY, NOTICE U/S 153C ISSUED BY THE ASSESSING OFFICER OF THE PERSON SEARCHED LACKS JURISDICTION WHICH IS NOT CURABLE BY VIRTUE OF PROVISION OF SECTION 292B. IN VIEW OF ABOVE, WE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE APEX COURT IN THE CASE OF MANISH IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 20 MAHESHWARI (SUPRA) AND DECISION OF HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF LALITKUMAR M. PATEL (SUPRA), HOLD TH AT THE NOTICES ISSUED U/S 153C WERE INVALID; ACCORDINGLY THE SAME ARE QUA SHED. CONSEQUENTLY, THE ASSESSMENT ORDERS FRAMED U/S 153C R.W.S. 153A ARE ALSO QUASHED. SINCE THE ASSESSMENT ORDER ITSELF HA S BEEN QUASHED, THE OTHER GROUNDS OF THE ASSESSEES APPEAL WHICH IS WIT H REGARD TO DETERMINATION OF THE INCOME OF THE ASSESSEE NEEDS N O ADJUDICATION. IT(SS)A NOS. 28 TO 31/AHD/2012 ASSESSEE: SHIV BUI LDERS IT(SS)A NOS. 32 TO 35/AHD/2012 ASSESSEE: M/S. PADM AVATI CONSTRUCTION IT(SS)A NOS. 36 TO 41/AHD/2012 ASSESSEE: M/S. SID DHGIRI DEVELOPERS IT(SS)A NOS. 42 TO 47/AHD/2012 ASSESSEE: M/S. PA RSHWA CONSTRUCTION IT(SS)A NOS. 48 TO 52/AHD/2012 ASSESSEE: M/S. R.B . CONSTRUCTION IT(SS)A NOS. 53 TO 56/AHD/2012 ASSESSEE: M/S. DHA RNENDRA DEVELOPERS IT(SS)A NOS. 57 TO 58/AHD/2012 ASSESSEE: M /S. MA HAVIR CONSTRUCTION IT(SS)A NOS. 60 TO 63/AHD/2012 ASSESSEE: M/S. DA RSHAN ASSOCIATES IT(SS)A NOS. 64 TO 67/AHD/2012 ASSESSEE: M/S. SA GAR DEVELOPERS 21. IN ALL THE ABOVE APPEALS BY THE ASSESSEE, THERE IS A COMMON GROUND WITH REGARD TO VALIDITY OF NOTICE U/S 153C. BOTH THE PARTIES FAIRLY AGREED THAT THE FACTS IN THE CASE OF ALL THE ABOVE ASSESSEES IN ALL THE ASSESSMENT YEARS ARE IDENTICAL TO THE FACTS IN THE CASE OF M/S. PARSHWA CORPORATION IN AS MUCH AS THE NOTICES HAVE BEEN ISSUED ON THE BASIS OF DATA OF ABOVE ASSESSEES FOUND IN THE L APTOP OF SHRI RAMESHBHAI B. SHAH. IDENTICALLY WORDED NOTICES U/S 153C HAVE BEEN ISSUED IN THE CASE OF ALL THE ABOVE ASSESSES. THE REFORE, FOR THE DETAILED DISCUSSION IN THE CASE OF M/S. PARSHWA CORPORATION ABOVE, WE QUASH THE NOTICES ISSUED U/S 153C AND CONSEQUENTLY, THE A SSESSMENT ORDERS COMPLETED U/S 153C R.W.S. 153A OF THE INCOME-TAX AC T. AS THE ASSESSMENT ORDER ITSELF HAS BEEN QUASHED, THE OTHER GROUNDS OF THE IT(SS)A NOS. 28 TO 58 & 60 TO 73/AHD /2012 45 CASES - PARSHWA CORPORATION, SHIV BUILDERS, PADMAVATI CONSTRN & OTHERS 21 ASSESSEES APPEALS, WHICH IS WITH REGARD TO THE DET ERMINATION OF INCOME, DOES NOT REQUIRE ANY ADJUDICATION. 22. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE COURT ON 11 TH SEPTEMBER, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 11/09/2015 BIJU T., PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $%&'' , , / DR, ITAT, AHMEDABAD 6. &,-. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD