M/s. Diamond Consultancy Services Prvate Limited, Kolkata V. Deputy Commissioner of Income Tax, Central Circle- II, Kanpur

ITSSA 631/LKW/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4899 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH JAISWAL SMT SHEELA
• Assessee Lawyers: UNLAWFUL WITHOUT JUR ISDICTION
• Keywords: Search and seizure; Loose papers; Document seized; Question of law; Documents seized; Set aside
• Section: 69C; 143(3); 153A; 292BB; 158BC; 13; 153; 22; 153C; 68; 132

Judgement Text

I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW (THROUGH VIRTUAL COURT) BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 M/S DIAMOND CONSULTANCY SERVICES PVT. LTD., 55-A, GULAM JILANI KHAN ROAD, TOPSIA, KOLKATA. PAN:AADCD0484F VS. DY.C.I.T., C.C.-II, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS A GROUP OF THREE APPEALS FILED BY THE ASSES SEE AGAINST SEPARATE ORDERS OF LEARNED CIT(A) ALL DATED 10/07/2018. THE ASSESSEE HAS TAKEN VARIOUS GROUNDS OF APPEAL HOWEVER, AT THE TIME OF HEARING O NLY GROUND NOS. 1 TO 4 WERE ARGUED, WHICH ARE IDENTICAL AND FOR THE SAKE OF COM PLETENESS ARE REPRODUCED BELOW: 1. THAT THE NOTICE ISSUED AND ASSESSMENT COMPLETED U/S 153C OF THE ACT IS INVALID AND UNLAWFUL WITHOUT JUR ISDICTION. APPELLANT BY SHRI ASHISH JAISWAL, ADVOCATE RESPONDENT BY SMT. SHEELA CHOPRA, CIT, D.R. DATE OF HEARING 01 /0 9 /20 21 DATE OF PRONOUNCEMENT 28/09/2021 I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 2 2. THAT THE NOTICE ISSUED U/S 153C OF THE ACT IS WI THOUT THE SATISFACTION AS REQUIRED UNDER THE PROVISION OF INC OME TAX ACT, 1961. 3. THAT THE NOTICE ISSUED U/S 153C OF THE ACT IS NO T BASED UPON ANY INCRIMINATING MATERIAL FOUND DURING THE SE ARCH WITH THE SEARCHED PERSON U/S 153A. 4. THAT THE INITIATION OF ASSESSSMENT PROCEEDING U/ S 153C OF THE ACT FOR THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT WITHOUT ANY INCRIMINATING MATERIAL IS INVALID AND U NLAWFUL. 5. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION U/S 68 OF THE IT ACT, 1961 ON ACCOUNT OF UNEXPLAINE D SHARE CAPITAL AND SHARE PREMIUM OF RS.1,71,25,000/-. 6. THAT THE APPELLANT HAD DULY DISCHARGED HIS ONUS CAST UPON HIM U/S 68 OF THE IT ACT, 1961. 7. THAT THE ASSESSMENT COMPLETED BY LD. AO IS ARBIT RARY, PREJUDICE AND UNLAWFUL. 8. THAT THE LD. AO HAS ERRED IN PROVIDING PROPER OPPORTUNITY TO THE APPELLANT. 2. THERE WAS AN APPLICATION, FILED BY THE DEPARTMEN T, WITH A REQUEST THAT THE CASES BE HEARD THROUGH PHYSICAL HEARING ONLY TO WHI CH LEARNED COUNSEL FOR THE ASSESSEE OBJECTED AND SUBMITTED THAT THE CASES ARE CONTINUOUSLY BEINGH ADJOURNED AND THERE IS HIGH DEMAND IN THESE CASES A ND INTEREST COMPONENT IS INCREASING AND MOREOVER, IT WAS SUBMITTED THAT THER E IS ONLY A SINGLE LEGAL ISSUE WHICH IS COVERED IN FAVOUR OF THE ASSESSEE BY THE J UDGMENT OF VARIOUS COURTS AND TRIBUNAL AND, THEREFORE, THERE WILL NOT BE ANY NEED FOR PHYSICAL HEARING OF THE CASES AS NO DOCUMENTS ARE REQUIRED TO BE REFERRED A ND ONLY FROM THE COPY OF SATISFACTION NOTE AND PANCHNAMA, IT CAN BE CONCLUDE D THAT THERE WAS NO MATERIAL FOUND DURING THE SEARCH IN THE CASE OF SEARCHED PER SON WHICH RELATED TO THE ASSESSEE AND THEREFORE, INITIATION OF PROCEEDINGS U /S 153C WERE ITSELF ILLEGAL. IT WAS SUBMITTED THAT HE CAN DEMONSTRATE THIS FACT WIT HIN A FEW MINUTES AND I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 3 THEREFORE, IN VIEW OF THESE FACTS IT WAS PRAYED THA T THE APPEALS CAN BE HEARD VIRTUALLY. GOING THROUGH THE CASE FILES, WE OBSERV ED THAT ORDERS UNDER THESE APPEALS WERE PASSED U/S 153C OF THE ACT AND THEREFO RE, IT WAS IMPORTANT FOR US TO FIND OUT AS TO WHETHER ANY MATERIAL RELATING TO THE ASSESSEE OR BELONGING TO THE ASSESSEE WAS FOUND DURING SEARCH OF THE SEARCHE D PERSON AND FINDING THAT THE ISSUE WAS QUITE SIMPLE, WE REJECTED THE ADJOURN MENT APPLICATION OF THE REVENUE AND DIRECTED THE ASSESSEE TO PROCEED WITH H IS ARGUMENTS. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SEARCH & SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 24/09 /2010 IN THE CASE OF MEHTAB ALAM C/O SULTAN VILLA, JAJMAU, KANPUR AND IN THE CASE OF NAUSHEEN FARAH LARI, W/O MEHTAB ALAM AT THE CHOWDHARY CHARAN SINGH AIRPORT, AMOUSI, LUCKNOW WHEN THESE TWO PERSONS WERE ABOUT TO BOARD JET AIRWAYS FLIGHT FROM LUCKNOW TO KOLKATA AND DURING SEARCH CASH AMOUNTING TO RS. 2 CRORES WAS SEIZED WHICH WAS FOUND FROM THE POSSESSION AND BESI DES CASH FIVE DOCUMENTS WERE ALSO FOUND FROM THEIR POSSESSION WHICH WERE AL SO SEIZED BY THE DEPARTMENT. LEARNED COUNSEL FOR THE ASSESSEE INVIT ED OUR ATTENTION TO THE COPY OF PANCHNAMA, PLACED AT PAGES 4 TO 13 OF THE PAPER BOOK. INVITING OUR ATTENTION TO PAGE 9 OF THE PAPER BOOK, LEARNED COUNSEL FOR TH E ASSESSEE SUBMITTED THAT INVENTORY OF CASH FOUND AND SEIZED IS MENTIONED ON THIS PAPER WHEREAS THE FIVE DOCUMENTS SEIZED DURING THE SEARCH WERE PLACED AT P AGES 18 TO 22 OF THE PAPER BOOK. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT OTHER THAN THE CASH AND FIVE DOCUMENTS, NOTHING WAS SEIZED AND IN THESE FIV E DOCUMENTS THERE IS NO MENTION OF THE NAME OF THE ASSESSEE. FURTHER INVIT ING OUR ATTENTION TO THE STATEMENT OF MEHTAB ALAM, PLACED AT PAGES 15 TO 17 OF THE PAPER BOOK. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN NONE OF THE QUESTIONS OR ANSWERS, MR.MEHTAB ALAM HAS MENTIONED THE NAME OF THE ASSESS EE AND THEREFORE, IT WAS ARGUED THAT NO DOCUMENTS, WHAT TO CALL OF INCRIMINA TING RELATING TO THE ASSESSEE OR BELONGING TO THE ASSESSEE, WAS FOUND DURING SEAR CH ON MEHTAB ALAM. THEREFORE, THE INITIATION OF PROCEEDINGS U/S 153C I TSELF ARE ILLEGAL IN NATURE AS THE BASIC REQUIREMENT OF SECTION 153C IS THAT SOME DOCU MENT OR THING BELONGING TO I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 4 OR RELATING TO THE ASSESSEE SHOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH ON A SEARCHED PERSON AND IN THIS RESPECT OUR ATTENT ION WAS INVITED TO THE PROVISIONS OF SECTION 153C OF THE ACT. IN THIS RES PECT LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. ALLIED PERFUMER (P) LTD. [2021] 432 ITR 237 (DEL), VIDE OR DER DATED 14/12/2020, HAS DECIDED SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE AND OUR ATTENTION WAS INVITED TO THE WRITTEN SUBMISSIONS WHEREIN THE RELEVANT FINDIN GS OF HON'BLE COURT HAVE BEEN REPRODUCED. LEARNED COUNSEL FOR THE ASSESSEE FURTH ER INVITED OUR ATTENTION TO A JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF ACIT VS. PEPSI FOODS (P) LTD. SLP NO.4659 OF 2015 DATED 4 TH DECEMBER, 2017 AGAINST THE HIGH COURT RULING WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT BEFORE ISSUE OF NOTICE U/S 153C, THE ASSESSING OFFICER IS REQUIRED TO ARRIVE AT A CO NCLUSIVE SATISFACTION THAT DOCUMENT OR THING BELONGING TO A PERSON, OTHER THAN THE SEARCHED PERSON, HAVE BEEN FOUND. IT WAS SUBMITTED THAT NO DOCUMENT BELO NGING OR RELATING TO THE ASSESSEE WAS FOUND THEREFORE, THIS SATISFACTION COU LD NOT HAVE BEEN ARRIVED. RELIANCE WAS FURTHER PLACED ON THE JUDGMENT OF HON' BLE BOMBAY HIGH COURT IN THE CASE OF ARPIT LAND (P) LTD. [2017] 393 ITR 276 (BOM) WHERE HON'BLE BOMBAY HIGH COURT HAS HELD THAT WHERE SEIZED DOCUMENT FORM ING BASIS OF PROCEEDINGS U/S 153C DID NOT BELONG TO ASSESSEE, SAID PROCEEDIN GS WOULD BE NULL AND VOID. LEARNED COUNSEL FOR THE ASSESSEE FURTHER PLACED REL IANCE ON AN ORDER OF LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF VINAY PRATAP S INGH IN I.T.A. NOS. 682 TO 687/LKW/2015 WHEREIN THE TRIBUNAL HAS HELD THAT THE PROVISIONS OF SECTION 153C CANNOT BE APPLIED IN THE ABSENCE OF HANDING OVER OF DOCUMENTS BY ASSESSING OFFICER OF SEARCHED PERSON TO THE ASSESSING OFFICER OF THE OTHER PERSON. IN VIEW OF THESE JUDICIAL PRECEDENTS AND IN VIEW OF THE FAC TS AND CIRCUMSTANCES OF THE CASES, IT WAS SUBMITTED THAT IN THE ABSENCE OF ANY INCRIMINATING DOCUMENTS RELATING TO OR BELONGING TO THE ASSESSEE, THE PROVI SIONS OF SECTION 153C COULD NOT HAVE BEEN TRIGGERED AND IT WAS PRAYED THAT THE ASSE SSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S 153C BE QUASHED. I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 5 4. LEARNED CIT, D.R., ON THE OTHER HAND, HEAVILY RE LIED ON THE ORDERS OF THE AUTHORITIES BELOW AND OUR PARTICULAR ATTENTION WAS INVITED TO THE FINDINGS OF LEARNED CIT(A) WHERE THE LEARNED CIT(A) HAS SPECIFI CALLY DEALT WITH THESE ARGUMENTS OF THE ASSESSEE AND OUR SPECIFIC ATTENTIO N WAS INVITED TO PARA 5.3 TO 5.7 AND IT WAS ARGUED THAT IN VIEW OF THESE DETAILE D FINDINGS OF LEARNED CIT(A), THE GROUNDS TAKEN BY THE ASSESSEE ARE REQUIRED TO B E DISMISSED. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS UNDISPUTED FA CT THAT A SEARCH & SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 24/09 /2010 IN THE CASE OF MEHTAB ALAM AND SMT. NAUSHEEN FARAH LARI WHEREIN CA SH AMOUNTING TO RS. TWO CRORE WAS SEIZED. THE COPY OF PANCHNAMA, PLACED AT PAGES 4-13 OF THE PAPER BOOK, SUGGESTS THAT ALONG WITH CASH, LOOSE PAPERS, AS PER ANNEXURE-LP1, CONSISTING OF FIVE PAGES, WERE ALSO SEIZED. THE DO CUMENTS MARKED AS LP1 CONTAINS FIVE LETTERS, A COPY OF WHICH IS PLACED AT PAGES 18 TO 22 OF THE PAPER BOOK. THESE FIVE DOCUMENTS ARE ON THE LETTER HEAD OF FIVE DIFFERENT FIRMS AND NONE OF THE ABOVE LETTERS CONTAIN THE NAME OF THE A SSESSEE EITHER DIRECTLY OR INDIRECTLY. ON EXAMINATION OF THE STATEMENT OF MEH TAB ALAM, PLACED AT PAGES 15 TO 17 OF THE PAPER BOOK, WE FIND THAT IN NONE OF TH E QUESTIONS OR ANSWERS, THE NAME OF THE ASSESSEE HAS BEEN MENTIONED. THE ORDER OF THE ASSESSING OFFICER ALSO STATES THAT CASH AMOUNTING TO RS. TWO CRORE WA S SEIZED AND BESIDES THE CASH FIVE DOCUMENTS WERE ALSO FOUND WHICH WERE ALSO SEIZED. OTHER THAN THESE TWO ITEMS OF CASH AND FIVE DOCUMENTS, NOTHING WAS S EIZED. IN THE STATEMENT OF MEHTAB ALAM AND IN THE DOCUMENTS SEIZED DURING SEAR CH, THERE IS NO MENTION OF THE NAME OF THE ASSESSEE. THE SATISFACTION NOTE, P LACED AT PAGES 1 TO 3 OF THE PAPER BOOK, ALSO DOES NOT CONTAIN ANY DOCUMENTS WH ICH WERE SEIZED DURING THE SEARCH OTHER THAN CASH OF RS. TWO CRORE AND FIVE DO CUMENTS. SIMILAR SATISFACTION NOTES HAVE BEEN PREPARED FOR ALL THE THREE YEARS. HOWEVER, FOR THE SAKE OF COMPLETENESS, THE SATISFACTION NOTE FOR THE ASSESSM ENT YEAR 2009-10 HAS BEEN MADE PART OF THIS ORDER, WHICH IS REPRODUCED BELOW: I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 6 5.1 THE SATISFACTION NOTE, COUPLED WITH THE PANCHNA MA, SUGGESTS THAT OTHER THAN CASH AND FIVE DOCUMENTS, NOTHING WAS SEI ZED DURING SEARCH. THE ASSESSEE CHALLENGED THE INITIATION OF PROCEEDIN GS U/S 153C BEFORE THE LEARNED CIT(A), WHO REJECTED THESE GROUNDS BY HOLDI NG AS UNDER: 5.1 GROUND NO. 1, 2 AND 3 RELATES TO THE LEGAL CH ALLENGE OF THE APPELLANT FOR ISSUE OF NOTICE U/S 153C OF THE I .T. ACT. THE CONTENTION OF THE APPELLANT IS THAT THERE EXISTS NO I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 7 SATISFACTION BY THE AO TO ASSUME JURISDICTION U/S 1 53C OF THE ACT. IT WAS ALSO CONTENDED THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL FOR THE RELEVANT ASSESSMENT YEAR IN APPEAL, NOTICE ISSUED U/S. 153C OF THE ACT BY THE A O IS WITHOUT JURISDICTION AND HENCE VOID-AB-INITIO AND I LLEGAL. THEREFORE, THE ASSESSMENT FRAMED U/S. 153C/144 IS W HOLLY ILLEGAL. 5.2 UNDERSIGNED HAS CAREFULLY GONE THROUGH THE ASSESSMENT ORDER, WRITTEN SUBMISSION AND THE VERBAL ARGUMENT OF THE LD. A.R. OF THE APPELLANT. THROUGH ITS GROUNDS OF APPEAL AND WRITTEN SUBMISSION, THE APPEL LANT HAS CHALLENGED THE ASSESSMENT, ON THE FOLLOWING LEGAL G ROUNDS: I) NOTICE ISSUED U/S 153C OF THE ACT DATED 21.02.20 14 DID NOT HAVE NECESSARY JURISDICTION, HENCE, ENTIRE ASSE SSMENT IS WITHOUT JURISDICTION. II) THERE EXIST NO SATISFACTION RELATING TO THE ASS ESSMENT YEAR IN APPEAL. III) ANOTHER LEGAL CHALLENGE OF THE APPELLANT IS TH AT NOTICE U/S. 153C IS WITHOUT JURISDICTION BECAUSE NO INCRIMINATI NG DOCUMENT RELATING TO THESE RELEVANT ASSESSMENT YEAR WAS FOUND. 5.3 CASE OF THE APPELLANT WAS CENTRALIZED VIDE ORD ER U/S 127 OF THE ACT DATED 24.11.2011 OF LD. CIT-XVIII, K OLKATA FROM ITO-52(3), KOLKATA TO ACIT, CC-I, KANPUR. AGAI NST THE ORDER U/S 127 DATED 24.11.2011 OF LD. CIT-XVIII, KO LKATA, ASSESSEE HAD FILED A WRIT PETITION BEFORE HON'BLE H IGH COURT OF KOLKATA. VIDE ORDER DATED 01.10.2012, HON'BLE HI GH COURT HAD SET-ASIDE AND QUASHED THE ORDER. IT WAS FURTHER ORDERED BY THE HONBLE HIGH COURT OF KOLKATA THAT THE ORDER WOULD NOT HOWEVER, PREVENT THE AUTHORITIES CONCERNED FROM PASSING A FRESH ORDER U/S 127 OF THE ACT, IN ACCORD ANCE WITH LAW AFTER GIVING THE PETITIONERS A REASONABLE OPPOR TUNITY OF HEARING. SINCE, HONBLE HIGH COURT HAD SET-ASIDE TH E ORDER U/S 127 OF THE ACT, THE JURISDICTION OVER THE ASSES SEE HAD RESTORED BACK TO ITO-52(3), KOLKATA. IN COMPLIANCE TO THE ORDER OF HONBLE HIGH COURT OF KOLKATA, LD. CIT- XV III, KOLKATA HAS PASSED ANOTHER ORDER U/S 127 DATED 18.0 2.2013. LD. CIT- XVIII, KOLKATA HAS AGAIN TRANSFERRED THE C ASE FROM ITO-52(3), KOLKATA TO ACIT, CC-I, KANPUR. THE CASE HAS I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 8 BEEN CENTRALIZED WITH THIS OFFICE AS PER ORDER U/S 127 OF THE IT. ACT, 1961 CIRCULATED VIDE LETTER F. NO. 19/CIT( C)/KNP/58- LL-12-59/MBMA/2Q12-13/5091 DATED 25.02.2013 ISSUED BY THE COMMISSIONER OF INCOME TAX (CENTRAL) KANPUR. THEREFORE, NOTICE U/S 153C DATED 21.02.2014 READ WI TH SECTION 153A OF THE IT. ACT, 1961 WAS ISSUED BY THE ASSESSING OFFICER. FROM THE ABOVE FACTS OF THE CASE , IT IS APPARENT THAT THE ASSESSING OFFICER ISSUED NOTICE U /S 153C OF THE ACT ON 21.02.2014 AFTER THE JURISDICTION WAS VE STED WITH HIM BY VIRTUE OF ORDER U/S 127 OF THE ACT DATED 25. 02.2013 PASSED BY COMMISSIONER OF INCOME TAX (CENTRAL) KANP UR, THEREFORE, NOTICE ISSUED BY THE ASSESSING OFFICER I S PERFECTLY VALID AND JUSTIFIED IN THE EYES OF LAW. 5.4 ANOTHER LEGAL CHANGE OF THE APPELLANT IS THAT ONLY TEN DAYS TIME IS ALLOWED TO FILE THE RETURN OF INCOME U /S 153C OF THE ACT AND THEREFORE, THE ENTIRE ASSESSMENT IS BAD IN LAW CANNOT BE ACCEPTED BECAUSE ASSESSING OFFICER IS WEL L WITHIN ITS RIGHTS TO ALLOW MAXIMUM OF 30 DAYS, AS PER THE PROVISIONS OF LAW FOR FILING THE RETURN OF INCOME U/S 153C/153 A OF THE ACT. HE IS ALSO ENTITLED TO REDUCE THE TIME LIMIT O F 30 DAYS LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CAS E. APPELLANT HAS FAILED TO ADDUCE ANY EVIDENCE TO DEMO NSTRATE HOW ASSESSING OFFICER HAS ERRED IN REDUCING THE TIM E LIMIT FOR FILING THE RETURN. HENCE, THIS LEGAL GROUND OF THE APPELLANT IS REJECTED. 5.5 ALSO, UNDERSIGNED HAS CAREFULLY GONE THROUGH TH E ASSESSMENT ORDER, WRITTEN SUBMISSIONS, REMAND REPOR T AND REJOINDER FILED BY THE APPELLANT AS WELL AS VERBAL ARGUMENTS OF THE LD. A.R. IT IS SEEN THAT A SEARCH AND SEIZU RE ACTION U/S 132 OF THE ACT WAS CONDUCTED ON SHRI MEHTAB ALA IN AND HIS WIFE SMT. NAUSHEEN FARAH, ON 24.09.2010, AT CHO WDHARY CHARAN SINGH AIRPORT, AMOUSI, LUCKNOW. DURING THE S EARCH, UNACCOUNTED CASH OF RS. 2,00,00,000/- AND CERTAIN DOCUMENTS WERE FOUND AND SEIZED BY THE INVESTIGATIO N WING OF THE DEPARTMENT. IT WAS ALSO OBSERVED THAT SHRI M EHTAB ALAM, WHO IS ONE OF THE KEY PERSON OF THE APPELLANT COMPANY WAS CARRYING THIS UNACCOUNTED CASH TO KOLKA TA. IT WAS ALSO FOUND THAT APPELLANT COMPANIES ARE INCORPO RATED IN KOLKATA AND FAMILY MEMBERS OF SHRI MEHTAB ALAM ARE THE DIRECTORS AND KEY PERSONS OF THE APPELLANT COMPANY. ALSO, I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 9 ANOTHER INTERESTING AND NOTEWORTHY FACT IS THAT APP ELLANT COMPANY HAS ADVANCED HUGE LOANS AND ADVANCE TO COMPANIES AND ENTITIES WHERE-IN, SHRI AAEHTAB ALAM AND HIS FAMILY MEMBERS ARE KEY PERSONS. THE DETAILED SCANNI NG OF THE ENTITIES, ADVANCING HUGE SHARE CAPITAL/PREMIUM TO THE APPELLANT COMPANY REVEAL THAT, SUCH ENTITIES ARE PA PER ENTITIES AND DO NOT ENGAGE IN ANY BUSINESS ACTIVITI ES. IT IS CATEGORICALLY NOTED BY THE ASSESSING OFFICER IN PAR A-7, PAGE- 2 OF THE ASSESSMENT ORDER THAT SHRI MEHTAB ALAM GROYP,._P_AISES WERE INVOLVED IN MONEY LAUNDERING THROUGH KOLKATA BASE ENTITIES, LIKE THE APPELLANT COMPANY M /S, DIAMOND CONSULTANCY SERVICES PVT. LTD., M/S. HOOGHY CONSULTANCY SERVICES PVT. LTD. AND M/S. GANGA JAMUN A COMMOTRADE PVT. LTD.. FURTHER, THE SATISFACTION REC ORDED BY THE ASSESSING OFFICER IS EXTRACTED AND REPRODUCED H ERE-IN- UNDER: 'SATISFACTIONNOTE FOR ISSUE U/S153C READ WITH SECTION 1S3A OF THE I. T. ACT, 1961 M/S. DIAMOND CONSULTANCE SERVICES PVT. LTD. 55-4, G AUTAM JILANI, KHAN ROAD, TOPSIA, KOLKATA-39 A.Y.-10-11 A SEARCH & SEIZURE OPERATION U/S 132 OF THE I.T. AC T WAS CONDUCTED ON 24.09.2010 IN THE CASE OF SHRI MEHTAB ALARM, C/O M/ S SULTAN VILLA, JAAJMAU, KANPUR AND SMT NAUSHEEN FARAH LARI W/O SHRI MEHTAB A TATN, C/O SULTAN VILLA, JAJMAU, KANPUR AT THE CHOWDHARY CHARAN SINGH AIRPOR T, AMOUSI, LUCKNOW WHEN THESE TWO PERSONS WERE ABOUT TO BOARD JET AIRW AY FLIGHT NO. 9W24621 FROM LUCKNOW TO KOLKATA ON 24.09.2010. CASH AMOUNTI NG TO RS. 2 CRORES WAS SEIZED WHICH WAS FOUND FROM THEIR POSSESSION KEPT I N TWO HAND BUGS. BESIDES ABOVE, 5 DOCUMENTS WERE ALSO FOUND FROM THEIR POSSE SSIONS WHICH WERE ALSO SEIZED BY THE, DEPARTMENT. ON PERUSAL OF THE APPRAISAL REPORT, IT WAS NOTICED THAT THE MEHTAB ALAM GROUP OF CASES WERE INVOLVED IN MONEY LAUNDERING BUSINESS THROUGH KOLKATA BASED COMPANIES NAMELY M/S GANGA JAMUNA COMMOTRADE PVT. L TD., M/S HOOGHLY CONSULTANCY SERVICES PVT. LTD. & M/S MIGRATE VYAPAR PVT. LTD. BESIDES THE ABOVE COMPANY. IT WAS FURTHER NOTICED THAT UNSECURED LOANS OF RS.5 1,01,527/- HAS BEEN GRANTED BY THE ASSESSEE COMPANY TO M/S MODEL ECHOES PVT. LTD, RS. 2.07 CRORES TO M/S MODEL TANNERS (I), PVT. LTD. AND RS. 1 .10 CRORES TO M/S MODEL AGE PET PRODUCTS PVT. LTD. SMT. SHAHEEN RABIA & SMT NISHAT ARA ARE THE DIRECTORS IN THE COMPANY. THE CASE, WAS CENTRALIZED FROM ITO-52(3), KOLKATA T O THIS OFFICE AS PER ORDER U/S 127 OF THE I.T. ACT, 1961 DATED 24.11,2011 ISSU ED BY THE COMMISSIONER OF INCOME TAX- XVIII, KOLKATA. BEING AGGRIEVED WITH TH E ORDER OF CIT(A), KOLKATA, ASSESSEE FILED A WRIT PETITION BEARING W.P. NO. 272 OF 2012, BEFORE THE HIGH I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 10 COURT OF JUDICATURE AT CALCUTTA. VIDE ORDER DATED 0 1.10.2012, HON'BLE HIGH COURT ORDERED AS UNDER- THE PROVISION OF SECTION 127 (2) HAVE BEEN COMPLIE D WITH IN PART, BUT NOT IN FULL. ORDER IS APPARENTLY NON-SPEAKING AND DOES NOT DISCLOSE ANY REASON WHATSOEVER. THE IMPUGNED ORDER IS SET ASIDE AND QUASHED. THIS O RDER WILL NOT HOWEVER, PREVENT THE AUTHORITIES CONCERNED FRONT PA USING A FRESH ORDER IN ACCORDANCE WITH LAW SHOULD THE SAME BE NECESSARY .' SINCE, HON'BLE HIGH COURT HAS SET ASIDE THE ORDER N /S 127, THE JURISDICTION OVER THE ASSESSES WAS RESTORED BACK TO ITO-52(3), KOLKATA. ACCORDINGLY, CASE RECORDS ALONG WITH FOLDER CONTAIN ING WRIT PETITION AND RELEVANT PORTION OF THE APPRAISAL REPORT WERE SENT TO ITO-52(3), KOLKATA UNDER PROVISO TO THE SECTION 153 B OF THE I .T. ACT, 1961. MEANWHILE, LD. CIT-XVIII, KOLKATA PASSED ORDER U/S 1 27(2) DATED 18.04.2013 TRANSFERRING THE CASE TO ACIT, CC-I, KAN PUR. IN COMPLIANCE TO THE CENTRALIZATION ORDER, ITO-52, KOLKATA TRANSF ERRED BACK THE CASE RECORDS TO THIS OFFICE ON 01.05.2013. LATER ON, LD. CIT(CENTRAL), KANPUR PASSED ORDER U/S 127 TRANSFERRING THE CASE FROM ACI T, CC-I, KANPUR TO THIS OFFICE. THEREFORE, I AM SATISFIED THIS IS THE FIT CASE FOR ISSUE OF NOTICE II/'S 153C READ WITH SECTION 1S3A OF THE ACT. ACCORDINGLY, NOT ICE U/S 153C READ WITH 153A OF THE LT. ACL IS ISSUED TO THE ASSESSEE M/S DIAMOND CONSULTANCY SERVICES PVT. LTD., 55-A. GULAM JILANI, KHAN ROAD. TOPSIA, KOLKATA FOR ASSESSMENT YEAR 2009-10. IT IS NOTICED THAT ON THE HEADLINE OF THE SATISFACT ION NOTE ASSESSMENT YEAR IS CLEARLY MENTIONED AS A.Y. 2010-1 1 WHEREAS IN THE CONCLUDING PARAGRAPH OF THE SATISFAC TION NOTE, A.O. HAS INADVERTENTLY MENTIONED A.Y. AS 2009 -10. THIS BEING THE TYPOGRAPHICAL ERROR AND LOOKING INTO THE NON- CHALLENGE OF THIS TYPOGRAPHICAL ERROR BY THE APPELL ANT DURING ASSESSMENT/APPEAL PROCEEDINGS AND ALSO CONSIDERING THE PROVISION OF SECTION 292BB OF THE ACT IT IS CONCLUD ED THAT THE SATISFACTION RECORDED BY THE A.O. BELONGS TO A.Y, 2 010-11. THUS, IT IS NOTED THAT ASSESSING OFFICER HAS RECORD ED THE PROPER SATISFACTION AS ENVISAGED U/S 153C OF THE AC T. 5.6 FURTHER, FROM THE ABOVE DISCUSSION, IT IS APPAR ENT THAT APPELLANT COMPANY IS ONE OF THE DUBIOUS ENTITIES, I NVOLVED IN ACCEPTING SHARE PREMIUM/CAPITAL WITHOUT CARRYING ON ANY BUSINESS ACTIVITIES AND ADVANCING LOAN TO ENTITIES WHERE IN FAMILY MEMBERS OF SHRI MEHTAB ALAM, ARE KEY PERSONS . HENCE, IT IS CONCLUDED THAT THERE EXIST UNDISCLOSED ASSET IN THE FORM OF SEIZED CASH OF RS. 2,00,00,000/- AND I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 11 INCRIMINATING MATERIAL. ALSO, ASSESSING OFFICER HAS RECORDED PROPER SATISFACTION NOTE WHICH IS REPRODUCED HERE-I N-ABOVE AS ENVISAGED U/S 153C OF THE ACT. HENCE, ALL THE JURISDICTIONAL REQUIREMENT U/S 153C OF THE ACT IS S ATISFIED. 5.7 RELIANCE OF THE LEARNED A.R. OF THE APPELLANT ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SI NHGAD EDUCATION SOCIETY IS MISPLACED BECAUSE, IN THE CITE D CASE LAWS NO UNDISCLOSED ASSET OR INCRIMINATING DOCUMENT FOR THE RELEVANT ASSESSMENT YEAR WAS FOUND, WHEREAS IN THE PRESENT FACTS OF THE CASE, INCRIMINATING ASSET IN THE FORM OF UNEXPLAINED CASH OF RS.2,00,00,000/- AND OTHER MATE RIAL WERE FOUND AND SEIZED DURING SEARCH PROCEEDINGS. THEREFORE, IN THE CONSIDERED OPINION OF THE UNDERSI GNED, JUDGMENT OF THE HON'BLE APEX COURT CITED SUPRA IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS AT HAND, IN FACT, ASSESSING OFFICER HAS MADE THE COMPLETE AUTOP SY OF THE MODUS OPERENDI OF THE APPELLANT COMPANY AND CONNECTION WITH THE SHRI MEHTAB ALAM TO LAUNDER MON EY TO THE ENTITIES, WHEREIN HE HIMSELF AND HIS FAMILY MEM BERS WERE KEY PERSONS. 5.8 THEREFORE, CONSIDERING THE ABOVE DETAILED DISC USSION ON THE FACTUAL MATRIX OF THE CASE, IT IS CONCLUDED THAT NOTICE ISSUED BY ASSESSING OFFICER DATED 21.02.2014 U/S 15 3C OF THE ACT, IS PERFECTLY LEGAL, AS IT FULFILLS ALL THE REQUIREMENTS OF LAW LIKE POSSESSION OF LEGAL JURISDICTION U/S 127 O F THE ACT, RECORDING OF SATISFACTION BY THE ASSESSING OFFICER AND EXISTENCE OF UNEXPLAINED ASSET OR INCRIMINATING MAT ERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH ACTION . HENCE, ACTION OF THE ASSESSING OFFICER WITH REGARD TO ISSU E OF NOTICE U/S 153C OF THE ACT CANNOT BE FAULTED WITH AND THER EFORE, LEGAL GROUNDS OF APPEAL OF THE APPELLANT ARE REJECT ED AND DISMISSED. 5.2 FROM THE ABOVE FINDINGS OF LEARNED CIT(A), WE D O NOT FIND THAT LEARNED CIT(A) HAS RIGHTLY APPRECIATED THE GROUND T AKEN BY THE ASSESSEE THAT IN THE ABSENCE OF ANY DOCUMENT RELATING TO OR BELONGING TO THE ASSESSEE, FOUND DURING SEARCH ON A SEARCHED PERSON, THE PROVISION OF 153C CANNOT BE TRIGGERED. LEARNED CIT(A) HAS REJECTED T HIS CONTENTION OF THE I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 12 ASSESSEE BY HOLDING THAT THE ASSESSING OFFICER IN P ARA 6 PAGE 2 OF THE ASSESSMENT ORDER HAS HELD THAT MEHTAB ALAM GROUP OF CASES WERE INVOLVED IN MONEY LAUNDERING THROUGH KOLKATA BASED ENTITIES LIKE THE ASSESSEE COMPANY. HOWEVER, HIS FINDING DO NOT DEAL WITH THE ARGUMENTS OF THE ASSESSEE THAT SINCE NOTHING RELATING TO OR BELONGIN G TO THE ASSESSEE WAS FOUND DURING SEARCH OF SEARCHED PERSON, THE PROVISI ONS OF SECTION 153C WERE NOT LEGALLY INITIATED. TO DECIDE AS TO WHETHE R THE PROVISION OF SECTION 153C WERE RIGHTLY TRIGGERED OR NOT, IT IS IMPORTANT TO VISIT THE PROVISION OF SECTION 153C OF THE ACT, WHICH FOR THE SAKE OF COMP LETENESS ARE REPRODUCED BELOW: SECTION 153C. ASSESSMENT OF INCOME OF ANY OTHER PERSON. (1) [NOTWITHSTANDING ANYTHING CONTAINED IN SECTIO N 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFOR MATION CONTAINED THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON] [AND THAT ASS ESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND IS SUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERS ON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR D OCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON TH E DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON [FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE AND] FOR THE RELEVANT ASSESSMEN T YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153 A]:] I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 13 [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH U NDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF SECTION 153A] SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECE IVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON:] [ PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZE TTE, SPECIFY THE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSI NG THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS AS R EFERRED TO IN SUB-SECTION (1) OF SECTION 153A] EXCEPT IN CA SES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED.] [(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 PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQU ISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSE SSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTI ON 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 SECTI ON 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTIC E 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 OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A.] I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 14 5.3 THE BARE ANALYSIS OF THE ABOVE PROVISIONS OF SE CTION 153C REVEALS THAT THESE PROVISIONS ARE TRIGGERED ONLY WHEN SOME MONEY, BULLION, JEWELLERY OR ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEI ZED OR REQUISITIONED DURING SEARCH ON A SEARCHED PERSON, PERTAINS TO OR THERE IS ANY INFORMATION CONTAINED THEREIN, RELATING TO A PERSON OTHER THAN THE SEARCHED PERSON IS FOUND, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR AS SETS, SEIZED OR REQUISITIONED BELONGING TO OTHER PERSON SHALL BE HA NDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON. IN THE PRESENT CASES, NO SUCH DOCUMENT, BELONGING TO OR RE LATING TO THE ASSESSEE, HAS BEEN SEIZED AND THEREFORE, NO HANDING OVER OF S UCH DOCUMENTS TO THE ASSESSING OFFICER OF OTHER PERSON HAS BEEN DONE. T HE EXISTENCE OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT RELATING TO OR BELONGING TO THE OTHER PERSO N IS A SINE QUA NON FOR INITIATION OF PROCEEDINGS U/S 153C OF THE ACT AND W ITHOUT THE EXISTENCE OF SUCH MATERIAL, THE INITIATION OF PROCEEDINGS U/S 15 3C ARE LIABLE TO BE QUASHED. THIS ASPECT HAS BEEN EXAMINED BY HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. ALLIED PERFUMER (P) LTD. [2 021] 432 ITR 237 (DEL), VIDE ORDER DATED 14/12/2020 WHEREIN HON'BLE COURT H AS HELD AS UNDER: 12. WE HAVE DULY CONSIDERED THE CONTENTIONS ADVANC E BY MR. MARATHA, HOWEVER, ARE UNABLE TO AGREE WITH HIM. THE ITAT, AFTER PERUSING THE RELEVANT RECORDS, INCLUDIN G THE ORDERS PASSED BY THE REVENUE AUTHORITIES, OBSERVED AS FOLLOWS: 10.'...WE FIND THAT THE ADDITIONS MADE BY THE AO AR E BEYOND THE SCOPE OF SECTION 153C OF THE INCOME-TAX ACT, 1961, BECAUSE NO INCRIMINATING MATERIAL OR EVIDENCE HAD BEEN FOUND DURING THE COURSE OF SEARCH SO AS TO DOUBT THE TRANSACTIONS. IT WAS NOTED THAT IN THE ENTIRE ASSESSMENT ORDER, THE AO HAS NOT REFERRE D TO ANY SEIZED MATERIAL OR OTHER MATERIAL FOR THE YE AR UNDER CONSIDERATION HAVING BEING FOUND DURING THE COURSE OF SEARCH IN THE CASE OF ASSESSEE, LEAVE ALO NE I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 15 THE QUESTION OF ANY INCRIMINATING MATERIAL FOR THE YEAR UNDER APPEAL. WE ALSO FIND THAT THE CASE LAWS CITED BY THE LD CIT(DR) ARE NOT RELEVANT TO THE PRESENT CASE . THEREFORE, IN OUR CONSIDERED OPINION, THE ACTION OF THE AO IS BASED UPON CONJECTURES AND SURMISES AND HENCE, THE ADDITIONS MADE IS NOT SUSTAINABLE IN THE EYES OF LAW, BECAUSE THIS ISSUE IN DISPUTE IS NOW N O MORE RES-INTEGRA, IN VIEW OF THE DECISION DATED 29- 8- 2017 OF THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME TAX- III, PUNE V. SINHGAD TECHNICAL EDUCATIONAL SOCIETY REPORTED IN (2017) 84 TAXMANN.COM 290 (SC) AS WELL AS THE DECISIONS OF THE HON'BLE DELHI HIGH, COURT PASSED I N THE CASE COMMISSIONER OF INCOME-TAX V. KABUL CHAWLA REPORTED (2016) 380 ITR , 573 (DEL) AND IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME-TAX, (CENTRAL)-2 V S. INDEX SECURITIES (P) LTD. 11. RESPECTFULLY FOLLOWING THE PRECEDENTS AS AFORESAID, WE QUASH THE ASSESSMENT MADE U/S.153(C)/143(3) OF THE I.T. ACT, 1961 AND DECIDE THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE AND ACCORDING LY, ALLOW THE CROSS OBJECTION FILED BY THE ASSESSEE. 12. FOLLOWING THE CONSISTENT VIEW TAKEN IN THE ASSESSMENT YEAR 2001-02 IN THE ASSESSEE'S CROSS OBJECTION, AS AFORESAID, THE ANOTHER CROSS OBJECTIO N FILED BY THE ASSESSEE RELATING TO ASSESSMENT YEARS 2002-03 ALSO STAND ALLOWED.' (EMPHASIS SUPPLIED) 13. UPON READING OF THE AFORESAID EXTRACTED PORTION OF THE IMPUGNED ORDER, IT IS DEARLY DISCEMABLE THAT THE TT AT HAS GIVEN A FINDING OF FACT THAT THE ASSESSMENTS MAKE N O REFERENCE TO THE SEIZED MATERIAL OR ANY OTHER MATER IAL FOR THE YEARS UNDER CONSIDERATION, THAT WAS FOUND DURING TH E COURSE OF SEARCH, IN THE CASE OF THE ASSESSEE. MR. MARATHA IS ALSO UNABLE TO POINT OUT ANY INCRIMINATING MATERIAL RELA TED TO THE ASSESSEE WHICH COULD JUSTIFY THE ACTION OF THE REVE NUE. MERELY BECAUSE A SATISFACTION NOTE HAS BEEN RECORDE D, CANNOT LEAD US TO REACH TO THIS CONCLUSION, ESPECIA LLY WHEN THE REVENUE HAS NOT LAID ANY FOUNDATION TO SUPPORT THEIR I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 16 CONTENTION. IN THE FACTUAL BACKGROUND AS EXPLAINED ABOVE, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C C ANNOT BE SUSTAINED IN VIEW OF THE DECISION OF THIS COURT IN THE CASE OF KABUL CHAWLA (SUPRA). 14. IN VIEW OF THE FOREGOING, WE FIND NO QUESTION OF LAW, MUCH LESS SUBSTANTIAL QUESTION OF LAW, THAT CALLS F OR A CONSIDERATION. ACCORDINGLY, THE PRESENT ARE DISMISS ED.' 5.4 SIMILARLY HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. PEPSI FOODS (P) LTD. SLP NO.4659 OF 2015 DATED 4 TH DECEMBER, 2017 HAS HELD AS UNDER: 11. IT IS EVIDENT FROM THE SATISFACTION NOTE THAT APART FROM SAYING THAT THE DOCUMENTS BELONGED TO THE PETITIONE R AND THAT THE ASSESSING OFFICER IS SATISFIED THAT IT IS A FIT CASE FOR ISSUANCE OF A NOTICE UNDER SECTION 153C, THERE IS N OTHING WHICH WOULD INDICATE AS TO HOW THE PRESUMPTIONS WHI CH ARE TO BE NORMALLY RAISED AS INDICATED ABOVE, HAVE BEEN REBUTTED BY THE ASSESSING OFFICER. MERE USE OR MENT ION OF THE WORD 'SATISFACTION' OR THE WORD I AM SATISFIED IN THE ORDER OR THE NOTE WOULD NOT MEET THE REQUIREMENT OF THE C ONCEPT OF THE SATISFACTION AS USED IN SECTION 153C OF THE SAID ACT THE SATISFACTION NOTE ITSELF MUST DISPLAY THE REASO NS OR BASIS FOR THE CONCLUSION THAT THE ASSESSING OFFICER OF TH E SEARCHED PERSON IS SATISFIED THAT THE SEIZED DOCUMENTS BELON G TO A PERSON OTHER THAN THE SEARCHED PERSON. GOING THROUG H THE CONTENTS OF THE SATISFACTION NOTE, ANY 'SATISFACTIO N' OF THE KIND REQUIRED UNDER SECTION 153C OF THE SAID ACT CO ULD NOT BE DISCERNED. [PARA 11] 12. THIS BRING THE POSITION THE VERY FIRST STEP PRI OR TO THE ISSUANCE OF A NOTICE UNDER SECTION 153C HAS NOT BEE N FULFILLED. INASMUCH AS THIS CONDITION PRECEDENT HAS NOT BEEN MET, THE NOTICES UNDER SECTION 153C ARE LIABLE TO B E QUASHED. [PARA 12] 5.5 THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CI T VS. ARPIT LAND PVT. LTD. & ANR. [2017] 393 ITR 0276 (BOM) HAS HELD AS UNDER: I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 17 6. WE NOTE THAT IN TERMS OF SECTION 153C OF THE A CT AT THE RELEVANT TIME I.E. PRIOR TO 1ST JUNE, 2015 THE PROCEEDINGS UNDER SECTION 153C OF THE ACT COULD ONLY BE INITIATED/PROCEEDED AGAINST A PARTY - ASSESSEE IF T HE DOCUMENT SEIZED DURING THE SEARCH AND SEIZURE PROCE EDINGS OF ANOTHER PERSON BELONGED TO THE PARTY - ASSESSEE CONCERNED. THE IMPUGNED ORDER RECORDS A FINDING OF FACT THAT THE SEIZED DOCUMENTS WHICH FORMED THE BASIS OF INITIATION OF PROCEEDINGS AGAINST THE RESPONDENT AS SESSEES DO NOT BELONG TO IT. THIS FINDING OF FACT HAS NOT B EEN SHOWN TO US TO BE INCORRECT. FURTHER, THE IMPUGNED ORDER PLACED RELIANCE UPON A DECISION OF GUJARAT HIGH COURT IN VIJAYBHAI CHANDRANI VS. ACIT 333 ITR PAGE 436 WHICH RECORDS THAT THE CONDITION PRECEDENT FOR ISSUING NOTICE UNDER SECTIO N 153C OF THE ACT IS THAT THE DOCUMENT FOUND DURING SEARCH PROCEEDINGS SHOULD BELONG TO ASSESSEE TO WHOM NOTIC E IS ISSUED UNDER SECTION 153C OF THE ACT. IT WAS FAIRLY POINTED OUT TO US BY MR. MISTRY, THE LEARNED SENIOR COUNSEL FOR THE RESPONDENT ASSESSEE THAT THE ABOVE DECISION WAS R EVERSED BY THE SUPREME COURT IN CIT VS. VIJAYBHAI N. CHANDRANI (2013) 357 ITR 713. HOWEVER, WE FIND THAT THE APEX COURT REVERSED THE VIEW OF GUJARAT HIGH COURT ON THE GROU ND THAT EFFICACIOUS ALTERNATIVE REMEDY WAS AVAILABLE TO THE PETITIONER TO RAISE ITS OBJECTIONS BEFORE THE AUTHORITIES UNDE R THE ACT. THEREFORE, THE GUJARAT HIGH COURT SHOULD NOT HAVE E XERCISED ITS EXTRA ORDINARY WRIT JURISDICTION TO ENTERTAIN T HE PETITION. HOWEVER, THE APEX COURT ALSO CLARIFIED THAT IT WAS NOT EXPRESSING ANY OPINION OF THE CORRECTNESS OR OTHERW ISE OF CONSTRUCTION PLACED BY THE HIGH COURT ON SECTION 15 3C OF THE ACT. THE REVENUE HAS NOT POINTED OUT ANY REASON WHY THE CONSTRUCTION PUT ON SECTION 153C OF THE ACT BY GUJARAT HIGH COURT IS NOT CORRECT/APPROPRIATE. WE FIND THAT IN ANY CASE OUR COURT HAS ALSO TAKEN A SIMILAR VIEW IN CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (2015) 378 ITR 84 AND REFUSED TO ENTERTAIN REVENUE'S APPEAL. 7. THE GRIEVANCE OF THE REVENUE AS SUBMITTED BY MR. KOTANGALE IS A SUBMISSION MADE ON THE BASIS OF SUSP ICION AND NOT ON THE BASIS OF ANY EVIDENCE ON RECORD WHIC H WOULD INDICATE THAT THE RESPONDENT ASSESSEE AND PERSONS SEARCHED WERE ALL PART OF THE SAME GROUP. BE THAT A S IT MAY, THE REQUIREMENT OF SECTION 153C OF THE ACT CANNOT B E I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 18 IGNORED AT THE ALTER OF SUSPICION. THE REVENUE HAS TO STRICTLY COMPLY WITH SECTION 153C OF THE ACT. WE ARE OF THE VIEW THAT NON SATISFACTION OF THE CONDITION PRECEDENT VI Z. THE SEIZED DOCUMENT MUST BELONG TO THE RESPONDENT ASS ESSEE IS A JURISDICTIONAL ISSUE AND NON SATISFACTION THER EOF WOULD MAKE THE ENTIRE PROCEEDINGS TAKEN THEREUNDER NULL A ND VOID. THE ISSUE OF SECTION 69C OF THE ACT CAN ONLY ARISE FOR CONSIDERATION IF THE PROCEEDINGS UNDER SECTION 153C OF THE ACT ARE UPHELD. THEREFORE, IN THE PRESENT FACTS, TH E ISSUE OF SECTION 69C OF THE ACT IS ACADEMIC. 8. IN VIEW OF THE ABOVE REASONS AND PARTICULARLY TH E FINDING OF FACT THAT SEIZED DOCUMENT WHICH FORMS THE BASIS OF THE PRESENT PROCEEDINGS, DO NOT BELONG TO THE PETITIONE R AND THE SAME NOT BEING SHOWN TO BE PERVERSE, THE QUESTION A S RAISED DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF L AW AND THUS NOT ENTERTAINED. 5.6 THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE O F VINAY PRATAP SINGH IN I.T.A. NOS. 682 TO 687/LKW/2015, VIDE ORDE R DATED 22/02/2021 HAS HELD AS UNDER: 8. THE ABOVE FINDINGS OF THE TRIBUNAL ARE THOUGH W ITH RESPECT TO SECTION 158BC OF THE ACT, THE PROVISIONS OF SECTION 158BC ARE IN PARI MATERIAL WITH THOSE OF SECTION 15 3A OF THE ACT WHICH IMPLIES THAT IN RESPECT OF ASSESSMENTS U/ S. 153A HANDING OVER OF ANY DOCUMENTS TO THE REVENUE AUTHOR ITIES IS A MUST AND IN THE PRESENT CASE THERE WAS NO DOCUMENT/STATEMENT REQUISITIONED BY INCOME TAX DEPARTMENT OTHER THAN CASH THEREFORE, THE QUESTION OF HANDING OVER OF DOCUMENT BY ASSESSING OFFICER OF SE ARCHED PERSON TO ASSESSING OFFICER OF OTHER PERSON DOES NO T ARISE AND IN THE ABSENCE OF HANDING OVER OF DOCUMENTS THE PROVISIONS OF SECTION 153C CANNOT BE APPLIED. 6. IN VIEW OF THE JUDICIAL PRECEDENTS, WE ALLOW GRO UND NOS. 1 TO 4 IN ALL THE APPEALS AND QUASH THE ASSESSMENT ORDERS AS HAVI NG BEEN PASSED WITHOUT AUTHORITY OF LAW. SINCE WE HAVE QUASHED TH E ASSESSMENT ORDERS, CONSEQUENT ORDERS OF LEARNED CIT(A) ARE ALSO QUASHE D. I.T.A. NOS.629 TO 631/LKW/2018 ASSESSMENT YEARS:2009-10 TO 11-12 19 7. REST OF THE GROUNDS IN ALL THE APPEALS HAVE BECO ME INFRUCTUOUS AND HENCE DISMISSED. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S TAND ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/09/2021) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:28/09/2021 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW BY ORDER ASSISTANT REGISTRAR