TaxTMI 
TaxTMI 
2016 (1) TMI 640
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....sed against the order of assessment framed by the Learned AO u/s 143(3) read with section 153C of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). 2. Shri.D.S.Damle, FCA, the Learned AR argued on behalf of the assessee and Shri.Debashish Banerjee, JCIT, the Learned DR argued on behalf of the revenue. 3. The issues involved all these appeals are identical in nature and hence they are taken up together and disposed off by a common order for the sake of convenience and brevity. 4. The assesses have also raised additional grounds of appeal before us for all the aforesaid assessment years under appeal. We find that the same go into the root of the matter and the facts in respect of the same are already available in the file of the lower authorities and hence in the light of the decision rendered by the Hon'ble Apex Court in the case of National Thermal Power Corporation Ltd reported in 229 ITR 383 (SC) the same are hereby admitted for the purpose of adjudication. 5. The primary issue raised in all these appeals of the assessee is that whether the search assessment framed in the hands of the assesses u/s 153C of the Act would be sustainable in law in the f....
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....t of books portion and 'q' and 'chq' were found to represent cheque payments. In this regard, on page no. 8 of the seized document of Layer Exports Pvt Ltd, there is recording of transaction related to sale of flats by Layer Exports Pvt Ltd to Sri Chandravadan Desai and Smt.Jyotsna Desai (the assesses herein). According to the Assessing Officer of Layer Exports Pvt Ltd Sri Chandravadan Desai and Smt.Jyotsna Desai (the assesses herein) had paid on money of Rs. 8,01,39,192/- to the seller of the property. Accordingly he proceeded to pass on the said information to the Assessing Officer assessing Sri Chandravadan Desai and Smt.Jyotsna Desai (the assesses herein) together with the copy of the relevant seized document contained in page 8 of the loose sheets seized from Bharat Shah Group at Mumbai. 7. The Learned AO based on this information received from ACIT, Central Circle 24 & 26, Mumbai vide abovementioned letter dated 21.12.2009 proceeded to issue notice u/s 153C of the Act on the assessee. The assessees prayed for dropping of proceedings initiated u/s 153C of the Act before the Learned AO and ignoring the contentions of the assesses, the Learned AO framed the ass....
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....ed that in case of such other person, the reference to the date of initiation of the search under 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 receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person. (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of ....
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....r charge. As per the said record, your assessee has paid cash money i.e. out of books money of Rs. 80139192 to my assessee. You are hereby requested to take necessary action in this regard as per provisions of IT act, 1961. Yours faithfully, Sd/- (PRASOON KABRA) Asstt. CIT, Central Circle-24 & 26 Mumbai Encl: Pgs 1 to 19 Copy to: 1. CCIT 2. The CIT-11 3. The Addl.CIT Range-32 4. The Addl. CIT Central Range 5, Mumbai ACIT CC 24 & 25" 9.2. It is further observed that page 21 of the paper book contains the letter dated 4.5.2010 addressed by the Learned AO to the assesses herein communicating the reasons for initiating proceedings u/s 153C of the Act on them. For the sake of convenience, the said letter dated 4.5.2010 is reproduced herein below:- OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -32, KOLKATA No. ACIT?Circle-32?Scrut/09-10 May 4, 2010 To, Shri Chandrvadan Desai 37, Shakespeare Sarani, Kolkata-700017. Sub: Proceedings u/s 153C for the A.yrs 2002-03 to 2008-09-matters regarding ..... Please refer to the notice u/s. 153C issued by the ....
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....tion that could be reached by him in terms of section 153C of the Act and hence we agree with the arguments of the Learned AR that the initiation of proceedings u/s 153C of the Act on the assesses herein in these facts and circumstances are not warranted and deserves to be quashed. Admittedly, the said seized loose sheets belong to the Bharat Shah Group (i.e the party searched u/s 132 of the act) and not to the assesses herein. We also hold that on perusal of the said contents of the seized loose sheets, no conclusion in accordance with law could be reached that it belongs to the person other than the person searched u/s 132 of the Act. In this regard, the following decisions supports the view of the assessee :- a) Decision of this Tribunal in the case of ACIT vs Vineet Dhingra in IT(SS)A No. 139/Kol/2011 dated 31.8.2012 , wherein it was held that : "3. We have heard the rival contentions and perused the materials available on record. We find that unlike section 158BD, which referred to " income" belonging to a person other than the person whose premises was subjected to search and seizure proceedings section 153C refers to any money, bullion, jewellery or other valuable article....
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....on taken under s.153C of the Act stands vitiated." 4. We humbly bow before the views expressed by a higher forum in judicial hierarchy. Undoubtedly, at the first sight, this legal position is simply incongruous inasmuch as even when document indicating unaccounted income of third party in a search proceedings but since this document did not belong to that third person, provisions of section 153C cannot be invoked. However, when clear words of this statute fail an income being brought to tax, it is not for us to supply any unintended omission even if it be so. Learned Departmental Representative's reliance on Hon'ble Delhi High Court's judgment in the case of SSP Aviation Ltd Vs. DCIT (20 Taxmann.com 214) is of no avail either, as it merely holds that even if documents belonging to the assessee is found in the premises of person searched does not show any undisclosed income, it can still be reason enough to trigger assessment u/s. 153C in the case of the person to whom document belongs. The documents found in that case were agreements which the assessee had entered into with the person searched. In the said case, it was not even the plea of the assessee that documents ....
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.... it is necessary that before the provisions of section 153C can be invoked, the Assessing Officer of the searched person must be satisfied that the seized material (which includes documents) does not belong to the person referred to in section 153A, i.e the searched person. In the satisfaction note, which is the subjectmatter of these writ petitions, there is nothing therein to indicate that the seized documents do not belong to the Jaipuria Group. This is even apart from the fact that there is no disclaimer on the part of the Jaipuria Group insofar as these documents are concerned. [Para 14]. Secondly, the finding of photocopies in the possession of a searched person does not necessarily mean and imply that they ' belong' to the person who holds the originals. Possession of documents, and possession of photocopies of documents are two separate things. While the Jaipuria Group may be the owner of the photocopies of the documents, it is quite possible that the originals may be owned by some other person. Unless it is established that the documents in question whether they be photocopies or originals, do not belong to the searched person, the question of invoking section 15....