TaxTMI 
TaxTMI 
2018 (12) TMI 1606
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....0, ITA No. 720 To 722/Del/2012, ITA No. 1022 To 1024/Del/2012, ITA No. 9 To 11/Del/2012, ITA No. 3208 To 3211/Del/2013, C.O. No. 126 To 131/Del/2013 (IN ITA No. 1648 To 1653/Del/2013) Assessment year : 2001-02 To 2007-08, Parties: DCIT Versus Sir Shadi Lal Enterprises Ltd. And Vice-Versa, Saraya Industries Ltd., Versus DCIT, ACIT Versus Saraya Industries Ltd., SVP Industries Ltd. Versus DCIT, DCIT Versus Kesar Enterprises Ltd. And Vice-Versa, M/s Narang Distillery Ltd., Versus DCIT And Vice-Versa, M/s National Industrial Corporation Ltd. Versus DCIT, and Vice-Versa, DCIT, Versus Modi Industries Ltd. and Vice-Versa, Simbholi Sugars Ltd. Versus DCIT, ACIT, Versus M/s Simbholi Sugars, DCIT Versus M/s Superior Industries Ltd. And Vice-Versa, U.P. Distillers Association, Versus DCIT, DCIT Versus DCM Shriram Industries Ltd. And Vice-Versa Shri N.K. Billaiya And Ms. Suchitra Kamble, JJ. Assessee by: Shri C.S. Agarwal, Shri G.N. Gupta, Shri Satyajeet Goel, Shri M.P. Rastogi, Shri Salil Kapoor, Ms Deepashree Rao, Shri Abhishek Arora, K. Sampat, Shri R.K. Kapoor, Department by: Shri S.S. Rana, CIT DR ORDER PER BENCH:- The Jurisdictional High Court of Delhi, v....
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.... on this aspect. All ITA Nos.429-433/2013, 522/2013, 530/2013, 534-537/2013, 252-256/2014, 418-423/2014, 447/2014, 759-761/2014 & 782-784/2014 Page | 7 rights and contentions of the parties, including that of the revenue, if they feel aggrieved against the orders of the ITAT, are kept open. It is also clarified that the findings of the ITAT, if adverse to the revenue, are open to challenge. 8. The above appeals are remitted to the ITAT for fresh consideration. ITAT shall consider and render findings on the grounds raised by or in the appeals before it by the concerned assessees. It is clarified that this is not a limited remand and the ITAT shall proceed to hear the merits of the appeals pending before it on other grounds as well." 4. Accordingly, the matters relating to Mohan Meakins Limited, National Industries Corporation Ltd, Superior Industries Ltd, DCM Shriram Industries Ltd, Saraya Industries, M/s Lords Distillery Limited and National Industrial Corporation Ltd were remitted to the Tribunal for reconsideration on the lines indicated in the said order of the Hon'ble High Court. 5. The representatives of the captioned assessees were heard at length. In addit....
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....ercise jurisdiction over the case of M/s. Sir Shadi Lai Enterprises Limited.. Search and seizure actions under section 132 of I.T. Act 1961 were taken on M/s Radico Khaitan Limited group of cases and also at the residence of Shri R.K. Miglani, Secretary General of UPDA on 14.2.2006. Simultaneously a survey u/s 133 A of the I.T. Act, 1961 was carried out at the office of the L'PDA (Uttar Pradesh Distillery Association). Various incriminating documents were found and seized therefrom. Action u/s 153A has been initiated against, various persons including M/s Radico Khaitan Ltd, and Shri R.K. Miglani. During the course of search various documents were seized / impounded and statements u/s 132(4) / 133 A were recorded including those of Shri R.K. Miglani. The scrutiny of incriminating documents found at the residence of Shri Miglani and also from the office of UPDA reveals that illegal payments were made by various Distilleries to various public servants. The UPDA acted as the nodal agency for making these illegal payments. The total of such illegal payments which are inadmissible expenditures works out to Rs. 246 crore as per details given hereunder {as understood....
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....nancial Year 2003-04, the illegal payment amount has been calculated separately, but thereafter it has been clubbed. For M/s Mohan Meakins Group also the Lucknow and Ghaziabad Distilleries are clubbed, through the major production/illegal payments come from Lucknow Distillery operations. M/S Majhola Distillery started making illegal payments in the Financial Year 2005-06. These illegal payments to public servants are fixed on the basis of monthly production / different distilleries. The total illegal payment amount is settled with the public servants and then this amount is divided proportionately on the basis of production / sales of different Distilleries. These figures of production / sales reflected in the papers impounded / seized from LPDA headquarters and the residence of its Secretary General Shri R. K. Miglani, in fact, tallies with the actual production / sales shown by different distilleries in their books of a/c, which, in a way indicate that these papers depict the illegal payments made and are not imaginary papers. These distilleries have adopted different methods for siphoning off / generation of this illegal payment amounts. Some ....
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....ther the documents referred to in the satisfaction note belong to the captioned assessees or not. We have carefully perused the copies of such documents as had been alleged to be belonging to the assessees. 16. Section 153C(1) reads as under: "153C (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the assessing officer is satisfied that (a) any money, bullion, jewellery or other valuable article or thing seized or requisitioned belongs, or (b) any books of account or documents or assets seized or requisitioned pertains or pertain to or any information contained therein relates to A person other than the person referred to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to Assessing Officer having jurisdiction over such other person] and that Assessing Officer shall proceed against each such other person and issue notice assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or as....
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....f Pepsico India Holding Pvt Ltd 370 ITR 295. The relevant observations of the Hon'ble High Court read as under: "4. Before we examine these writ petitions in detail it would be pertinent to point out that recently in the case of Pepsi Foods Pvt. Ltd. Vs. Assistant Commissioner of Income Tax, WP (C) No.415/2014 and other connected matters, this court had occasion to examine the very provisions which are under consideration in the matters before us. In the judgement delivered on 07.08.2014 in the case of Pepsi Foods Pvt. Ltd. (supra), after examining the provisions of Sections 153C, 132(4A)(i) & 292C(1)(i) of the said Act, this Court had observed as under: "6. On a plain reading of Section 153C, it is evident that the Assessing Officer of the searched person must be "satisfied" that inter alia any document seized or requisitioned "belongs to" a person other than the searched person. It is only then that the WP (C) Nos.414, 566, 567, 572, 573 & 574 of 2014 Page 5 of 17 Assessing Officer of the searched person can handover such document to the Assessing Officer having jurisdiction over such other person (other than the searched person). Furthermore, it is only aft....
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....action that the documents or material found during the search belong to a person other than the searched person, it is necessary that he arrives at the satisfaction that the said documents or materials do not belong to the searched person. At this stage, we may point out that nowhere the Assessing Officer has mentioned that neither Shri R.K. Miglani nor the UPDA have disclaimed the seized documents. 23. The Hon'ble High Court of Delhi in the case of ARN Infrastructure India Limited 394 ITR 569 had the occasion to consider the following facts: "A search was conducted in the case of a company E and when the panchnama for the search was prepared, the name of the company R was also added to it. During the course of search, a letter written by the assessee to the company R was found, which contained the details of commission payments by the assessee to R in that year with a request to issue bills to the assessee* A copy of the ledger account of R maintained by the assessee as proof of payments made through official channel was also seized. The seized documents were handed over to the Assessing Officer, but, only one document namely the letter written by the assessee to R....
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....ears as proposed. Therefore, the notice dated July 23, 2014 issued by the Assessing Officer to the assessee under section 153A read with section 153C of the Act and all proceedings consequent thereto were to be quashed." 25. Satisfaction note in the case of ARN Infrastructure India Limited [supra] reads as under: "Satisfaction note for initiating proceedings under Section 153C read with 153A of the Income Tax Act, 19611n the case of M/s ARN Infrastructures India Limited, 9, Birla House, Arya Samaj Road, Karol Bagh, Karol Bagh, Delhi- 110005 (PAN AAFCA6403M) A search action u/s 132 of the I T Act,. 1,961 was initiated in the case of M/s Earth Infrastructures Ltd, at B-100, Indl Area Naraina, Phase-I, New Delhi on 16/01/2013. It has been brought to the notice by the AO of M/s Earth Infrastructures Ltd,(in this case the AO is same as undersigned) in whose cases-action under section 132 of the Income Tax Act was taken place that various documents/books of accounts etc were found, and seized during the course of search and statement of various persons were recorded; The AO of the searched persons has recorded his satisfaction that the following seized papers / documents belo....
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....e. 14.02.2006. The basis of determination of this contribution by each distillery and manner of spending this money as per these documents and statements of Shri R.K. Miglani of each member was fixed on the basis of country liquor produced by each distillery. These collections made by the UPDA from its members were on regular basis given to various officials and politicians which basically represented illegal payments. 29. This whole activity was coordinated through select committee known as 'Core Committee' and Shri R.K. Miglani as General Secretary, maintained regular books of account of this collection and payments. The ld. CIT-DR vehemently stated that the department has produced a number of evidences in support of the fact that the distilleries had made unaccounted payments to UPDA and in such of his contentions, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Smt. Sumati Dayal 214 ITR 801 where it was held that "Matters have to be considered in the light of human probabilities". It is the say of the ld. DR that by preponderance of probability, the distilleries had made unaccounted payments to UPDA. 30. In our considered opinion, the R....
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....at the production figures were in fact, forwarded by the concerned distilleries under its letter head or some other form. It is not known why Shri R.K. Miglani or for that matter UPDA was maintaining production details of various distilleries. No doubt, production figures gathered from respective distilleries do match with the production figures mentioned in the seized documents but then it does not prove that any of the distilleries has authored the seized document. 34. In his statement recorded u/s 132(4) of the Act, Shri R.K. Miglani, in reply to Question No. 10, which was - "I am showing you pages 150 to 155 of Annexure A-1. Have these papers been written by you and if yes, please explain the transactions on these papers." Answered - "Pages 152 and 155 only have been written by me. However, all the above mentioned papers contained record of payment/contribution by various members of UPDA which add upto 508.05 lakhs. The next figure is 670.00 which is contribution to be paid (due) from these members on account of above mentioned payment. Page 154 again contains details of balances attributed to various members of UPDA in respect of amount to be paid (due) on....
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....of each document relied upon by the Assessing Officer in the assessment order and supported by the ld. CIT-DR before us, it cannot be said that these documents were ever authored by any of the distilleries and, therefore, cannot be said to be belonging to them or any of them. The documents were seized from Shri R.K. Miglani or UPDA and, therefore, any presumption under the Act is against these persons and not against any of the distilleries. 44. In continuation of his arguments, the ld. DR heavily relied upon the proceedings u/s 12AA of the Act in the case of UPDA and stated that the Tribunal has upheld the cancellation of registration u/s 12AA of the Act and endorsed the findings of the Assessing Officer upholding the validity of statement on oath of Shri R.K. Miglani recorded u/s 132(4) of the Act. The ld. DR further pointed out that the said order of the Tribunal was confirmed by the Hon'ble High Court of Delhi vide order dated 23.10.2017 and the SLP filed against the same was dismissed by the Hon'ble Supreme Court on 13.4.2018. It is the say of the ld. DR that since the decision of the Tribunal has been affirmed by the Hon'ble High Court of Delhi as well as the H....
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.... the assessment years under consideration. 49. Moreover, the Hon'ble Supreme Court in the case of Chuharmal Vs. CIT 172 ITR 250 has held that possession is proof of ownership and the seized documents were found from the possession of Shri R.K. Miglani. 50. As mentioned elsewhere, none of the documents referred to by the Assessing Officer belong to the captioned assessees nor it has been identified that which documents belong to which captioned assessees. In our considered opinion, the Assessing Officer has exceeded in his jurisdiction to initiate the proceedings u/s 153C of the Act. 51. The ld. DR has heavily relied upon the judgment of the Hon'ble Delhi High Court in the case of Super Malls Pvt Ltd 393 ITR 557. In our considered view, this judgment has no application at all on the facts of the cases in hand. In this judgment, the Hon'ble High Court has only examined whether a satisfaction note prepared in the case of the person other than the person searched by the same Assessing Officer in the file of the person searched could be held as valid. If the judgment is read as a whole, the Hon'ble High Court has not held that the term "belong to" is inter-chang....
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....e Hon'ble High Court, while dismissing the writ petition of the Revenue, inter alia, held that in the absence of any linkage between the material seized from the assessee's premises and those from the UPDA's premises as well as statement of Shri R.K. Miglani through any objective material, does not establish the allegation. 59. It would be pertinent to mention here that the documents are very same documents which have been considered by the Assessing Officer of the captioned assessees. In our considered opinion, there remains no valid basis to allege that the documents belong to the captioned assessees or the captioned assessees have made any investment/incurred alleged expenditure. 60. We are of the considered opinion that the allegation of the Revenue is entirely unjustified, unsupported by any document found from the possession or control of the appellants. It is well settled rule of law that burden of proof is on the alleger and not on the person against whom the allegation is made. In the present appeals, the burden is thus on the Revenue to establish that the documents found from the third persons are reliable and authentic and also such documents belong to the dist....
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....s the say of the ld. DR that not providing cross examination of Shri R.K. Miglani is irrelevant, in as much as, Shri R.K. Miglani is Secretary General of UPDA in which the distilleries are members. Therefore, if the statement of Shri R.K. Miglani which was adverse to the members was untrue, then immediately Shri R.K. Miglani could have been removed from the post of Secretary General of UPDA or he could have been brought before the I.T. authorities. It is the say of the ld. DR that the statement of Shri R.K. Miglani is not on stray/dumb documents but contains figures of dispatch and amount of illegal payments made by members which is clear from the notings of the seized documents. Therefore, Shri R.K. Miglani has only confirmed the specific details contained in the seized material. The ld. DR concluded by stating that ,in effect, Shri R.K. Miglani was an employee of the member of the UPDA and, therefore, there was no necessity for his cross examination. 64. The contention of the ld. DR that since Shri R.K. Miglani was related to the member distilleries of UPDA, therefore it was not necessary to allow cross examination is not acceptable. The Hon'ble High Court of Delhi in the ....
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....s hereby declared that the examination of any person under this sub- section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income- tax Act, 1922 (11 of 1922 ), or under this Act.] Section 132(4A) in The Income- Tax Act, 1995 (4A) 2 Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person&#....
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....he 'searched person' and all the presumptions were available against him in respect of the seized documents/notings in the seized documents and other things. 69. Surprisingly, the assessments of Shri R.K. Miglani have been made on the returned income which will be clear from the following table: Assessment Year Returned income Rs. Assessed income Rs u/s 2000-01 177080 177080 153A 2001-02 194615 194615 -do- 2002-03 191652 191652 -do- 2003-04 343219 343219 -do- 2004-05 225541 225541 -do- 2005-06 231867 231867 -do- 70. It can be seen from the above chart that the case in which the presumption was available, the Revenue accepted what was returned by Shri R.K. Miglani and on the strength of his statement that the documents seized from his premises belong to distilleries, the additions have been made as unexplained expenditure/contribution to UPDA. 71. It is well settled that only the person competent to give evidence on the truthfulness of the contents of the document is writer thereof. So, unless and until the contents of the documents are proved against a person, the possession of the document....
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....ht in holding that the previous order of the Tribunal dated June 21, 1969, restoring the case to the file of the Income-tax Officer meant that the only point that was open was in respect of the addition of Rs. 19,421 and not the legal or jurisdictional aspect whether the reassessment proceedings were correctly initiated under section 147/148 ? 3. Whether, on the facts, the assessee was justified at this late stage in re-agitating the matter whether the case was rightly reopened (which is purely a legal matter going to the very root of the jurisdiction), after having raised and not pressed the point before the Appellate Assistant Commissioner when the matter was taken up before the Appellate Assistant Commissioner for the first time ?" 78. The Hon'ble High Court, inter alia, held as under: The legal position about waiver of such a mandatory provision created in the wider public interest to operate as fetter on the jurisdiction of the authority is well settled that there could never be waiver, for the simple reason that in such cases jurisdiction could not be conferred on the authority by mere consent, but only on conditions precedent for the exercise of juri....
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....ivate capacity, which might be dispensed with without infringing any public right or public policy." This settled legal position was again reiterated in Superintendent of Taxes v. Onkarmal Nathmal Trust, AIR 1975 SC 2065, where the question had arisen in the context of the Assam Taxation (on Goods Carried by Road and on Inland Waterways) Act, 1961. The assessee had obtained an injunction order against the State in a writ petition challenging the validity of the Act. The assessee had not submitted the return under section 7(1) and under section 7(2) a notice had to be issued only within two years from the end of the return period. The procedure of best judgment assessment was laid down in section 9(4) and the question arose whether, in view of the injunction order obtained by the assessee, ignoring the two years' limit laid down as a fetter for issuance of the notice under section 7(2), the best judgment assessment procedure was permissible. At page 2070, the learned Chief Justice first held that if a return under section 7(1) was not made, the service of a notice under section 7(2) of the Act was the only method for initiation of a valid assessment proceeding under the....
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....provisions which confer jurisdiction and provisions which merely regulate the procedure by holding that such provisions which confer jurisdiction or such mandatory provisions which are enacted in public interest on ground of public policy even in such revenue statutes could not be waived, because of the underlying principle that jurisdiction could neither be waived nor created by consent. The decision in Director of Inspection of Income-tax v. Poor an Mall & Sons [1974] 96 ITR 390 (SC), which is so vehemently relied upon by the learned standing counsel, does not detract from the aforesaid ratio, and in fact, reiterates the same. In that case, the question had arisen regarding the waiver of a provision in section 132(5) of the Income-tax Act which permitted the Income-tax Officer to pass an order of seizure within 90 days. The provision was held to be not a mandatory provision and at page 400 it was also pointed out that there was no question of the period of limitation under section 132(5) involving public interest. It was intended for the benefit of the parties. The settled principle which had been stated on Crates on Statute Law, 6th edition, at page 259, was as under: ....
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....conferred on the authority unless the conditions precedent were first fulfilled. In Dasa Muni Reddy v. Appa Rao, AIR 1974 SC 2089, 2092, such a question of waiver was examined also in the context of the bar of estoppel or of res judicata. At page 2091, it was pointed out that want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice. The absence of a condition necessary to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect. (See Halsbury's Laws of England, 3rd edition, volume 15, paragraph 384). Further proceeding at page 2092, it was pointed out that just as the courts normally did not permit contracting out of the Acts so there could be no contracting in. A status of control of premises under the Rent Control Acts could not be acquired either by estoppel or by res judicata. Their Lordships in terms held that the principle was that neither estoppel nor res judicata could give the court jurisdiction under the Acts which those Acts said it was not to have. Therefore, bar of res judicata or estoppel or wai....
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....t reference, the writ petition was dismissed. The order of the High Court was a final judgment which terminated the independent writ proceeding. It was held at page 1186 that that order having not been appealed before the Supreme Court, it had become final and it was no longer open to the parties to raise a plea of jurisdiction in appeal against the subsequent award given by the Industrial Tribunal after exercising jurisdiction which the Tribunal was permitted to exercise by the order of the High Court. These were competent proceedings and the independent writ proceeding was also finally terminated and, therefore, this final order precluded the parties from reagitating the same question before the Industrial Tribunal. Their Lordships distinguished the earlier decision in Satyadhyan Ghosal v. Smt. Deora-jin Debi, AIR 1960 SC 941, where the question had arisen about the applicability of section 28 of the Calcutta Thika Tenancy Act, 1949, and the plea having been rejected by the munsif trying a suit, revision, the High Court had held that operation of section 28 of the Act was not affected by the subsequent amendment Act and the case was remanded to the munsif for disposal according t....
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....t at that stage. The Tribunal's view was also incorrect that in restoring the case to the file of the Income-tax Officer by the earlier order, the only point left open was in respect of addition of Rs. 19,421 on merits and that the legal or jurisdictional aspect whether the reassessment proceedings were legally initiated was not kept open. Even on the third question the Tribunal's view was erroneous that even though this point went to the root of the jurisdiction and was a. pure question of law, merely because the point was initially raised and not pressed when the matter was taken up before the Appellate Assistant Commissioner, it could be waived and it could not be reagitated. Therefore, in view of the settled legal position our answers on questions Nos. 1 and 2 are in the negative, while our answer on question No. 3 is in the affirmative, that is to say, all the questions are answered against the revenue and in favour of the assessee. The reference is accordingly disposed of and the Commissioner shall pay the costs of the assessee." 79. The judgment on which the ld. DR has heavily relied upon relates to the claim of deduction u/s 80IA of the Act. In our considered opi....
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....uthorizations for search section 132 or for requisition under section 132 A was executed during the Financial Year commencing on the 1st day of April, 2018,- (i) the provisions of clause (a) or clause ( b) of this sub-section shall have effect, as if for the words "twenty-one months", the words "eighteen months" had been substituted; (ii) the period of limitation for making the assessment or reassessment in case of other person referred to in section 153C, shall be the period of eighteen months from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition Provided that in case of other person referred to in section 153C, the period of limitation for making the assessment or reassessment shall be the period as referred to in clause (a) or clause (b) of this sub-section or one year from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other person, whichever is later: Provided further that in the case where the last of the authorizations for searc....
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.... order dated 21.01.2008, dismissed the writ petition which has been filed by the writ petitioner before the trial court and allowed the appeal so preferred by the petitioner/appellant with the direction to the authorities to proceed with the matter under the provisions of section 127 of the Act. 85. In the light of the aforesaid facts, as mentioned elsewhere, the assessment proceedings u/s 153C of the Act were started on 11.12.2006 when the Assessing Officer received alleged satisfaction note and the documents belonging to the assessee. As per the provisions of the Act contained in section 153B(b) of the Act, as stated hereinabove, the Assessing Officer had to frame assessment order by 22.03.2008, excluding the period of stay and adding the same period to nine months whereas assessment order is framed on 30.12.2008 and is, therefore, well beyond the period of limitation. In our considered opinion, when the stay got vacated on 07.05.2017 and there being no further stay only such time during which the order of the Hon'ble High Court had been passed granting stay till the same was allowed can alone be excluded. 86. Before us, the ld. DR vehemently stated that the time taken ....
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.... 94. We have discussed this issue in detail while adjudicating common grievance Nos. 1 and 2 elsewhere. For our detailed discussion therein, we hold that the assessment framed u/s 153C r.w.s 153A of the Act is without jurisdiction and accordingly, assessment order is annulled for want of jurisdiction. 95. In the result, the appeals filed by the assessee are allowed. ITA No. 1310 to 1312, /DEL/2012 Saraya Industries [Assessee's appeals] 96. Assessment has been framed u/s 153C r.w.s 153A of the Act. The entire assessment has been framed on the strength of the documents seized from the premises of Shri R.K. Miglani and on the statement of Shri R.K. Miglani recorded u/s 132(4) of the Act. Search action was also conducted at the premises of the appellant. As per page 13 of Annexure A-2 impounded from the premises of the assessee, the Assessing Officer formed a belief that Rs. 2.63 crores have been paid by the appellant to UPDA from April to July 2005. The Assessing Officer was of the opinion that Rs. 75 lakhs was paid to UPDA in the month of July 2005. Since the alleged documents pertain to F.Y. 2005-06, assessment for A.Y 2000-01 was assessed on the income already assesse....
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....ed the findings of the AO., the ld. AR vehemently stated that the Assessing Officer has erred in assuming jurisdiction u/s 153C/153A of the Act erroneously relying upon the documents which did not belong to the assessee. It is the say of the ld. AR that the entries/notings/jottings found in the loose sheets/diaries seized from the premises of Shri R.K. Miglani/UPDA do not have any evidentiary value as per the ratio laid down by the Hon'ble Supreme Court in the case of CBI Vs. V.S. Shukla [1998] Taxmann.com 2155 and in the case of Common Cause, A Registered Society Vs. UOI 394 ITR 220. 104. Per contra, supporting the order of the lower authorities, the ld. DR strongly contended that the decisions relied upon by the ld. AR were rendered in the context of criminal proceedings/FEMA/CBI proceedings and I.T. proceedings are different from these proceedings. Therefore, the content of evidence is different in I.T. proceedings. Accordingly, the judgments delivered in the cases of V.C. Shukla and Common Cause, A registered Society [supra] are not relevant for the appeal under consideration. It is the say of the ld. DR that the notings found in the documents seized from the assessee cl....
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....(sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, section 34 cannot at all be pressed into service against him." 107. Similar view was taken by the Hon'ble Supreme Court in the case of Common Cause, A registered Society [supra] wherein the Hon'ble Supreme Court considered the following facts: "Raids were conducted on the Birla and Sahara Group of Companies and incriminating materials in form of random sheets and loose papers, computer prints, hard disk, pen drives etc. were found. Evidence of certain highly incriminating money transactions were also found. ■ Question arises as to whether a case was made out on the basis of above materials, to constitute Special Investigation Team (SIT) and direct investigation against the various functionaries/officers and further monitor the same? 108. And held as under: ■ Loose sheets of papers are wholly irrelevant as evidence being not admissible under section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was ....
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....e to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. [Para 22] ■ It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. [Para 23] ■ Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order passed in Sahara's case by the Settlement Commission....
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....h mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [Para 26] ■ Considering the aforesaid principles which have been laid down, it is opined that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissibly under section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, it is opined that it would not be legally justified, safe, just and proper to direct investigation. [Para 27]" 109. It is true that the afore discussed judgments of the Hon'ble Supreme Court were not considered in the context of Income-tax proceedings, but the ratio decidendi is d....
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....an application dated 30.10.2018, the assessee prayed for admission of following additional ground of appeal: "That in the absence of requisite satisfaction contemplated u/s 153C of the Act, the Assessing Officer has no jurisdiction to frame the assessment and accordingly, the assessment so framed by the Assessing Officer dated 26.12.2008 u/s 143(3) of the Act is without jurisdiction." 120. The ld. DR, at the very outset, vehemently objected for admission of this additional ground. It is the say of the ld. DR that this grievance was never taken before any authority in the first round of litigation. Therefore, the assessee now cannot take this additional ground. 121. We have elaborately discussed the admission of additional ground/challenges from the jurisdiction of the Assessing Officer in the case of Lord's Distillery Limited in ITA No. 2576 to 2578/DEL/2010 at para 79 page 74. For our detailed discussion therein, the additional ground is admitted and since it goes to the root of the mater, we will first address to this additional ground raised by the appellant. 122. Facts of the case reveal that a satisfaction note received by the Assessing Officer is dated 10.04....
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....ducted at the premises of UPDA. 130. We have discussed this issue in detail while adjudicating common grievance No. 1 elsewhere. For our detailed discussion therein, we hold that since the assessment order has been annulled, all the subsequent happenings get vitiated. 131. In the result, the cross objection is allowed. ITA Nos. 2226, 2227 & 3328 /DEL/2010 Kesar Enterprises Ltd [Assessee's appeal] 132. The sum and substance of the grievance of the assessee is that the CIT(A) grossly erred in confirming the action of the Assessing Officer in assuming jurisdiction u/s 153C r.w.s. 153A of the Act merely on the basis of certain documents found during the course of search. The assessee is further aggrieved by the addition of Rs. 3.367 crores in A.Y 2003-04, Rs. 3.07 in A.Y 2004-05 and Rs. 1.44 crores in A.Y 2005-06 made by the Assessing Officer on account of alleged unaccounted contribution made to UPDA on the basis of impounded documents and statements of Shri R.K. Miglani. 133. We have discussed this issue in detail while adjudicating common grievance Nos. 1 and 2 elsewhere. For our detailed discussion therein, we hold that the assessment framed u/s 153C r.w.s 153A of....
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.... of the assessee. 141. Facts on record show that the ACIT, Central Circle-4, New Delhi recorded satisfaction as per provisions of section 153A on 01.12.2006 that action u/s 153C of the Act was called for in this case as the assessee had made unaccounted payments/incurred illegal unaccounted expenditure. In the case of the appellant, the date of satisfaction note would amount to date of search i.e. 01.12.2006. Therefore, the six A.Ys forming block will be year ending 31.03.2006, 31.03.2005, 31.03.2004, 31.03.2003, 31.03.2002 and 31.03.2001, which means that for the year ending 31.03.2006 for A.Y 2006-07 , the A.Y under consideration, assessment had to be framed u/s 153C of the Act whereas the assessment has been farmed u/s 143(3) of the Act. Therefore, the same is bad in law. 142. Be that as it may, assumption of jurisdiction u/s 153C of the Act on the basis of documents impounded from the premises of Shri R.K. Miglani/UPDA has been held by us as unlawful. Accordingly, we have annulled the assessment order so framed while deciding common Grievance No. 1. For our detailed discussion given therein, added with our findings given in common grievance No. 2, we hold that the assessm....
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....el/2010 ITA No. 1044/Del/2010 ITA No. 2806/Del/2010 ITA No. 2807/Del/2010 C.O. No. 127/Del/2010 C.O. No. 128/Del/2010 C.O. No. 129/Del/2010 National Industrial Corporation Ltd [Revenue's appeals and assessee's cross objections] 150. Grievance of the Revenue is that the CIT(A) erred in annulling the assessment by holding that no document was seized during the search pertaining to this A.Y. 151. In its cross objection, the assessee has challenged the assumption of jurisdiction u/ 153C of the Act. 152. Be that as it may, assumption of jurisdiction u/s 153C of the Act on the basis of documents impounded from the premises of Shri R.K. Miglani/UPDA has been held by us as unlawful. Accordingly, we have annulled the assessment order so framed while deciding common Grievance No. 1. For our detailed discussion given therein, added with our findings given in common grievance No. 2, we hold that the assessment so framed u/s 153C r.w.s 153A of the Act is bad in law and without jurisdiction. 153. In the result, Cross objections of the assessee are allowed and the appeals filed by the Revenue are dismissed. ITA No. 2....
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....A perusal of the assessment order dated 28.12.2007 shows that the entire assessment has been framed on the strength of the documents seized from the premises of Shri R.K. Miglani and impounded from the premises of UPDA. Since we have annulled the assessment framed u/s 153C of the Act on the basis of documents found from the premises of Shri R.K. Miglani, for our detailed discussion given in common grievance Nos. 1 and 2, we hold that the assessment so framed u/s 153C r.w.s 153A of the Act is bad in law and without jurisdiction. Since we have annulled the assessment, there is no need to dwell into the merits of the case. 161. In the result, the appeals of the assessee are allowed. ITA No. 2151/Del/2012 Modi Industries Limited [Revenue's appeal] 162. Assessment is framed u/s 143(3) of the Act on the strength of the documents found from the premise of Shri R.K. Miglani/UPDA and accordingly, additions have been made. We have annulled the assessment framed on the strength of the documents seized from the premises of Shri R.K. Miglani and impounded from the premises of UPDA. Since we have annulled the assessment framed u/s 153C of the Act on the basis of documents found from ....
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....r: (i) Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. (ii) Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. (iii) The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". (iv) Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence f....
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....be said to be belonging to the assessee for F.Y. 1999-2000 pertaining to A.Y 2000-01. Since no documents were seized for the A.Y under consideration, there was no question of framing assessment u/s 153C r.w.s 153A of the Act. 174. On the given facts, the CIT(A) has rightly annulled the assessment. Therefore, no interference is called for. 720/DEL/2012 721/DEL/2012 722/DEL/2012 1022/DEL/2012 1023/DEL/2012 Superior Industries Ltd [Assessee's appeals 175. Since the assessment has been held quashed, we do not find it necessary to dwell into the merits of the case. 176. In the result appeals of the assessee are allowed. 1024/DEL/2012 Superior Industries Ltd 177. The assessee is aggrieved by the addition of Rs. 2.54 crores made by the Assessing Officer on the alleged unaccounted payment made by the assessee to UPDA. 178. Facts on record show that additions have been made by the Assessing Officer on the strength of the notings found from the premises of Shri R.K. Miglani/UPDA and on the statement of Shri R.K. Miglani recorded u/s 132(4) of the Act for making the impugned addition. 179. While adjudicating common grieva....
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.... No. 9/Del/2012 ITA No. 10/Del/2012 ITA No. 11/Del/2012 ITA No. 3208/Del/2013 ITA No. 3209/Del/2013 ITA No. 3210/Del/2013 ITA No. 3211/Del/2013 U.P. Distillers Association [Assessee's appeals] 188 The above appeals are preferred against the orders of the CIT(A), New Delhi for A.Ys 2001-02 to 2007-08. ITA Nos 11/D/2012 and 3211/DEL/2013 are appeals where assessment has been framed u/s 143(3) of the Act whereas all the other appeals are where assessment has been framed u/s 153A of the Act. 189. In so far as the assessment orders framed u/s 153A of the Act are concerned, the main grievance of the assessee is that the assessment so framed is bad in law as no search u/s 132 of the Act was carried on at the premises of the assessee. 190. Other grievance relate to cancellation of registration granted u/s 12AA of the Act and additions made u/s 68 of the Act and denial of the benefit of section 11 of the Act. 191. Since the first and main grievance of the assessee goes to the root of the matter, we will address on this issue. 192. The undisputed fact is that the assessments have been framed u/s 153A of the Act vide orde....
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.... 1 to 24 A-9 CPU One Recovered Annexure A-1 to A-B Along with the survey folder R. K. Gupta Asstt. Director of Income Tax (Inv.) Unit-V(3), ARA Centre E-2, Jhandewalan Extn. New Delhi 110055 Copy to the assessee R. K. Gupta Asstt. Director of Income Tax (Inv.) Unit-V(3), ARA Centre E-2, Jhandewalan Extn. New Delhi 110055." 197. From the Warrant of Authorisation, one thing is clear. Search operations were conducted at the premises of Shri R.K. Miglani u/s 132 of the Act and survey operation was conducted at the premises of the assessee u/s 133A of the Act. Panchnama of Survey operation is exhibited elsewhere. 198. At this stage, it is pertinent to mention that on 14.02.2006, when both operations took place, statement of Shri R.K. Miglani was recorded u/s 132(4) of the Act at the premises and u/s 133A of the Act at the premises of the assessee. This also makes it clear that Shri R.K. Miglani was searched and UPDA was surveyed. Otherwise, there was no need for examining Shri R.K. Miglani under two different sections i.e. 132(4) and 133A of the Act. 199. If the search warrant was never executed at the premises of ....
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....ts from the member distilleries during the F.Y. 2002-03 to 2005-06 relevant to A.Ys 2003-04 to 2006-07. The details of such alleged payments are as under: S. No. Name of the Distillery 2002-03 2003-04 2004-05 2005-06 (till Jan) Total (In Lakhs) 1 Saraya 945 1045 527.5 690 (Saraya + Balrampur 3207.5 2 Unnao 804 1134 636.9 889.6 3464.5 3 Rampur 752 945 599.4 705.6 3002 4 SSL (Mansurpur) 463 607 374.8 591 2035.8 5 Lords (D. K. Modi) 582 616 404.9 486.9 2089.8 6 Daurala (DCM) 374 453 310.2 245448.6 1585.8 7 Kesar (Baheri) 419 317 176.3 348.6245 1157.3 8 NIC (National) 327 359 242.4 348.6 1277 9 Simbholi 298 472 278.5 583.1 1631.6 10 Balrampur 298 328 244.5 870.5 11 Narang 61 153 105.1 235.7 554.8 12-13 Pilkhani & Shamli 214.4 333.1 185 214 947.0 14 Cooperative 150 182 99.8 194.8 626.6 15 M. Meakins 202 334 204.2 275.6 1015.8 16 Central 22 44 32.4  ....
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....ndom sheets and loose papers, computer prints, hard disk, pen drives etc. were found. Evidence of certain highly incriminating money transactions were also found. ■ Question arises as to whether a case was made out on the basis of above materials, to constitute Special Investigation Team (SIT) and direct investigation against the various functionaries/officers and further monitor the same? And held as under: ■ Loose sheets of papers are wholly irrelevant as evidence being not admissible under section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court. [Para 20] ■ The Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible evidence , whether it would be safe to even initiate investigation ? In case it is done, the....
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....within the legal parameters. The Commission has also observed that department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. [Para 22] ■ It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. [Para 23] ■ Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order passed in Sahara's case by the Settlement Commission and the documents have not been relied upon the Commission against assessee and thus such documents have no evidentiary value against third parties. On the sis of the materials which have been placed on record, it is opined that no case is made out to direct investigation against any of the persons named in the Birla's documents or in the documents of Sahara. [Para 24] ■ In the case of State of Haryana v. Bhajan Lai 1992 Supp (1) SCC....
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....uld qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissibly under section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, it is opined that it would not be legally justified, safe, just and proper to direct investigation. [Para 27]" 210. In the case of V.C. Shukla [1998] Taxmann.com 2155, Hon'ble Supreme Court held as under: "A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trust worthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inf....
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....gencies. 213. The Assessing Officer has heavily relied upon page 81/A-3 seized from Shri R.K. Miglani's residence in which total country liquor produced by each distillery is given, which is converted into number of cases, then contribution of each distillery is calculated @ Rs. 20 per case. 214. It is pertinent to mention here that UPDA, the appellant is neither a manufacturer nor a distributor of country liquor or any other liquor. Therefore, this seized document has no relevant in so far as the appellant is concerned. Though repetitive requests were made to submit Shri R.K. Miglani for cross examination, but the same was not provided by the Revenue. The denial of cross examination of Shri R.K. Miglani has been discussed by us in length while deciding common grievance No. 2 elsewhere. 215. While discharging the duties of Secretary General of the appellant, it is not known why Shri R.K. Miglani was maintaining data relating to manufacture of country liquor by the members of UPDA. Moreover, Shri R.K. Miglani is not a computer literate person and does not know the principles of book keeping and accountancy and he has mentioned that he joined UPDA in June 2003, then how can ....
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....UPDA by the distillery members and statement of Shri R.K. Miglani. Incidentally, the very same documents were considered by the Hon'ble High Court of Delhi in the case of Radico Khaitan Ltd 396 ITR 644 wherein the Hon'ble High Court has observed as under: "The revenue's argument mainly hinges upon the clandestine payments to UPDA and statements of its Secretary General. These include various tables and charts mentioning the names of distilleries (members of the association) and the expected payment from such distilleries. These documents were signed by the Sh. Miglani and on behalf of the different distilleries. The revenue had prepared a chart for each assessment year and the payment made by the assessee to the fund, according to it, worked out to Rs. 29.95 crores. This was allegedly used to bribe public officials and politicians. The reasoning of the Commission was that these documents were in the possession of UPDA and the statements of Sh. Miglani were made not in the course of its search (i.e. of the assessee's premises) and therefore corroboration of the statements as well as the documents with the materials seized from the assessee's premises in ....
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.... and executed or attested by the person by whom it purports to have been so executed or attested." It is evident that in the absence of these foundational facts, the revenue is under an obligation to establish through materials relatable to the assessee, what it alleged against it. What were the best pointers for further investigation were the discovery of material and evidence, which the revenue claim pointed to the assessee's failure to disclose full facts and income, should have resulted in further investigation and unearthing of material in the form of seized documents from the assessee's premises. Unfortunately the linkage between the material seized from the assessee's premises and those from UPDA's premises as well as the statement of Sh. Miglani was not established through any objective material. It is now settled law that block assessments are concerned with fresh material and fresh documents, which emerge in the course of search and seizure proceedings; the revenue has no authority to delve into material that was already before it and the regular assessments were made having regard to the deposition, the inability of the revenue to establish as it....
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....le High Court has categorically mentioned that the linkage between the material seized from UPDA's premise as well as statement of Shri R.K. Miglani was not established through any objective material. Without bringing any cogent material on record, it is merely a presumption that the UPDA has been primarily engaged in the work of facilitating the collection and payment of bribe money. 221. Some more issues have been raised by the ld. DR. (i) On the basis seized from the residence of Shri R.K. Miglani, M/s Radico Khaitan Ltd surrendered Rs. 27.50 crores and Balrampur Chini Mills surrendered Rs. 8.90 crores. 222. We fail to understand how the action of some other tax payer is relevant in the case of the appellant. The wisdom of Radico Khaitan Ltd and Balrampur Chini Mills cannot be considered and should not be considered in the hands of the appellant. (ii) Incriminating documents were also seized from the laptop of Shri Ajay Agarwal, General Manager of M/s Radico Khaitan Ltd. 223. Again, it is between M/s Radico Khaitan Ltd and its General Manager to explain the incriminating documents. The assessee cannot be held to be responsible for the same. 224. The ld. DR has ....
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....s which are injurious to health. The Constitution of India also visualizes the production and consumption of alcohol as being injurious to health and the objects of the association are against state policy. Many WHO articles have pointed out as to how the consumption of alcohol is injurious to health. 13.2. In addition to above, as per the seized documents and statement of Sh. Miglani as discussed above, association has been primarily engaged the work of facilitating the collection and payment of bribe money which is against the public policy welfare. 13.3. Due to the reasons explained above the object and activities of the Trust cannot be considered for charitable purpose and exemption u/s 11 and 12 of the IT Act, is denied and assessment is being made in the status of AO P." In view of the above detailed reasons, the assessee is not eligible for exemption u/s 11 & 12 of IT Act in respect of following unaccounted receipts: S. No. Assessment Year Amount (Rs.) 1 2003-04 56,80,00,000 2 2004-05 76,04,15,200 3 2005-06 45,22,94,401 4 2006-07 56,41,74,550 The above unaccounted receipts are not reflected in t....
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....uality of interest could not be attributed. Whereas the facts of the case in hand show that the appellant collects subscription of membership fees from its members and those collections are deployed for defrayal of expenses for activities of the club. This means that the collection from the members is for the benefit of the members and being so, principles of Mutuality would apply. 230. In the light of clarification of the Hon'ble High Court [supra] and in the light of decision of the co-ordinate bench given in ITA No. 573/DEL/2005 and in the light of our decision relating to the additions made u/s 68 of the Act, we are of the considered opinion that the benefits of section 11 & 12 cannot be denied to the assessee. 231. In the result, the appeals of the assessee are allowed. 232. We will now address to the assessments framed u/s 143(3) of the Act in assessment year 2006-07 ITA Nos. 3211/DEL/2013 and assessment year 2007-08 in ITA No. 11/DEL/2012. 233. In ITA No. 3211/DEL/2013, the assessee is aggrieved by the rejection of registration granted u/s 12AA of the Act by adding a sum of Rs. 2,2,5,209/- and is further aggrieved by the addition of Rs. 56.41 crores being une....