TaxTMI 
TaxTMI 
2015 (1) TMI 648
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....rder of the CIT(A), on the facts and circumstances of the case, the perverse as it does not take into consideration the relevant documents brought on record and submissions of the assessee. 4. The CIT(A) has erred on the facts and in law in confirming the addition of Rs. 43,83,562/- made by the AO in not allowing capitalization of interest. 5. The CIT(A) has erred on the facts and in law in not considering that the interest of Rs. 43,83,562/- has been utilized for purchase of property at NBCC Plaza, Pushp Vihar, New Delhi and therefore the interest paid ought to have been capitalized and added to the cost of the Hotel. 6. The assessee craves leaves to add, alter or modify the aforesaid ground and craves leave to file additional grounds. 7. The aforesaid grounds are taken without prejudice to each other." 3. Brief facts of the case are that a search and seizure operation u/s. 132 of the I.T. Act was carried out in Rajdarbar Group of Companies on 31.7.2008. During search operation certain documents were seized which belong to the assessee company. The case of the assessee was transferred to Central Circle-5, New Delhi under section 127 of the I.T. Act, 1961. 4. Noti....
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....Delhi). 2. Party A-15 (Locker) (Restraint at Locker No. 347, Key No. 431, Central Bank of India, Kamla Nagar, Agra UP in the name of Smt. Anita Aggarwal) Various paper were found and seized belonging to M/s Global Heritage Ventures Pvt. Ltd. The annexure are marked as : 1. Party NO. A-7 Ann. A-5 pages 84-83, Ann.A-17, Ann. A-22, Ann. A-30 pages 1-130, Ann. A-31 pages 1-135, Ann. A-32 Pages 1-367, Ann. A-41 pages 3-10, An. A-42 pages 1-241, Ann. A-44. 2. Party No. A-15 Ann.A-20, pages 28-39, 43, 44 46, 47, 49-52, Ann. A-21 pages 7 Ann. A-22 pages 10-13. In view of the aforementioned facts, asstt. proceedings u/s. 153C are warrants against the assessee. Notices u/s. 153 are being issued. Sd/- (MAZHAR AKRAM) Asstt. Commissioner of Income Tax, Central Circle-5, New Delhi" 8. The ld counsel submitted that the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in failing to appreciate that both the notice issued u/s 153C of the Act and, assessment framed u/s 153A/143(3) of the Act were without satisfying the statutory preconditions in the Act and as such, were without jurisdiction and therefore, deserve to be quashed as such. Fur....
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....able and so bad in law being without jurisdiction. 8.1 In support of his contention Ld. AR filed 02 Paper Books one containing pages 1 to 68 having the copy of written submission filed before the CIT(A) dated 25.2.2013 and 11.3.20-13; Copy of Annual Report for the year ending 31.3.2008; Copy of certified Satisfaction Note and Copy of MOA. The Second one is the Paper Book containing pages 1 to 166 having the written submissions; copy of letter for inspection; copy of Satisfaction Note and copies of various judgments of the Hon'ble High Court and ITAT which include the copy of order of High Court in the case of PepsiCo India Holdings (P) Ltd. (Pages 33-40 of the PB) and copy of order High Court in the case of Pepsi Foods Pvt. Ltd. (Pages 41-55 of the PB). 8.2 Ld. DR relied upon the order passed by the Ld. CIT(A) and stated that the First Appellate Authority has passed the impugned order on the basis of the various documentary evidence which the authorities has mentioned in the impugned order the AO has made the additions in dispute on the basis of detailed enquiry as well as the documentary evidence which has rightly been upheld by the Ld. First Appellate Authority. He requeste....
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....t may be presumed that such document belongs to such person. It is similarly provided in Section 292C (1)(i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of "satisfaction". "11. It is evident from the above satisfaction note that apart from saying that the documents belonged to the petitioner and that the Assessing Officer is satisfied that it is a fit case for issuance of a notice under Section 153C, there is nothing which would indicate as to how the presumptions which are to be normally raised as indicated above, have been rebutted by the Assessing Officer. Mere use or mention of the word "satisfaction" or the words "I am satisfied" in the order or the note would not meet the r....
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....ut show that page 1 is a "confirmation of accounts" given by the assessee company M/s V.K. Fiscal Services P. Ltd. to Global Reality Ventures Ltd., for the period is 1st April, 2008 to 31st March, 2009. As an attachment to this "confirmation of account", V.K. Fiscal Services P. Ltd. Has given a copy of ABN Amro Bank (626643) books, copy of trial balance, copy of profit and loss a/c, copy of balance sheet, copy of a party of the cash book, for the period of six months i.e. the period for which it had transactions with Global Reality Ventures, copy of ledger account of Global Reality Ventures and copy of Indian Overseas Bank (7556) ledger account. These in our view are not books of account belonging to the assessee, as sought to have been made out in the Satisfaction Note. This demonstrates that, the Satisfaction Note which says that books of accounts are contained in the hard disk, is a wrong recording of facts. The entire cash book or the bank book is not available in the hard disk. What was available in the hard disk was confirmation of accounts given by the assessee to Global Reality Ventures and statement of accounts, ledger etc. in support of the same. The relevant portion of t....
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....09 (Mag.)/35 taxmann.com 85 (AIl). This decision also, in our view, does not advance the case of the Revenue. This would be evident from the observations of the Allahabad High Court in paragraphs 19 to 21 of the said decision, which read as under: "19. In Manish Maheshwari's case (Supra) the Supreme Court observed that taxing statute must be constructed strictly. The Court, however, shall not interpret statutory provisions in such a manner, which would create an additional physical burden on a person. In case of any doubt or dispute, construction is to be made in favour of the tax payer and against the revenue. 20. In the present case we do not find anything wrong in the satisfaction note and the forwarding of the entire matter by the Income Tax Officer, Ward-Ill (2), Ahmedabad to the Assessing Officer of the petitioner at Bareilly. All the requirements of Section 153(c) were complied with by the Income Tax Officer, Ward-Ill (2), Ahmedabad. A search under Section 132A was carried out and bullion was seized. The case was selected for compulsory scrutiny for six assessment years. The assessee established that the seized silver belongs to M/s Sarvesh Jewellers, Bareilly - the pe....
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....es that this was not the case. In other words, it follows that the Jaipuria Group did not say that the documents did not belong to them." 12. The Hon'ble Delhi High Court further held as under:- "13. Having set out the position in law in the decision of this Court in the case of Pepsi Foods Pvt. Ltd. (supra), it must be seen as to whether the Assessing Officer of the searched person (the Jaipuria Group) could be said to have arrived at a satisfaction that the documents mentioned above belonged to the petitioners. 14. First of all we may point out, once again, that it is nobody"s case that the Jaipuria Group had disclaimed these documents as belonging to them. Unless and until it is established that the documents do not belong to the searched person, the provisions of Section 153C of the said Act do not get attracted because the very expression used in Section 153C of the said Act is that "where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A .... " In view of this phrase, it is nece....