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2021 (8) TMI 1173 - HC - Income TaxAssessment u/s 153C - disallowance of expenditure u/s 140A(3) - whether any incriminating materials concerning the present Petitioner were found in the search? - HELD THAT - There is no denial that no incriminating materials concerning the present Petitioner were found in the premises of the two searched persons i.e. Sri Jami Ramesh and Sri Jami Sivasai. The absence of the satisfaction note of the AO of the searched persons about any such incriminating material vis- -vis the present Petitioner is also not disputed - Assessment order challenged in the present petition relates to disallowance of expenditure u/s 140A(3) that is payable to the cultivators, expenses towards Hamali i.e. labour charges, unexplained money u/s 69A of the Act, negative cash and unaccounted stock. This was not on account of the discovery of incriminating materials concerning the Petitioner found in the course of the search. In fact there was no search warrant under Section 132 of the Act against the Petitioner firm. In the absence of incriminating materials vis-a-vis the present Petitioner being found in the course of the search of the searched persons viz., Sri Jami Ramesh and Sri Jami Sivasai, the impugned assessment order and the consequential demand order are unsustainable in law and are hereby set aside.
Issues:
Challenge to assessment order and demand notice under Income Tax Act for AY 2016-17 based on Section 153C - Lack of satisfaction note by AO of searched persons - Validity of assessment under Section 153C without incriminating materials - Interpretation of legal provisions under Section 153C and precedents set by Supreme Court and Delhi High Court. Analysis: The case involved a challenge to an assessment order and demand notice issued under the Income Tax Act for the Assessment Year 2016-17 based on Section 153C. The petitioner's assessments were reopened under Section 153C for AY 2012-13 to 2016-17, with the AO not recording a satisfaction note before initiating proceedings. The petitioner contended that no incriminating materials were found during the search of two individuals, leading to the proceedings being quashed. The court allowed the petitioner to insert additional averments regarding the lack of incriminating materials found during the search of the two individuals. The petitioner argued that the documents relied upon by the AO were found during a survey of the petitioner, not during the search of the other individuals. The court referred to a circular by CBDT emphasizing the necessity of a satisfaction note before initiating proceedings under Section 153C. The legal position under Section 153C was compared to Section 158BD, with the court citing a Supreme Court judgment to highlight the importance of a satisfaction note before transmitting records to the assessing officer. The court noted that no incriminating materials concerning the petitioner were found during the search of the two individuals, and the assessment order challenged was based on various disallowances unrelated to the search. The court referenced a Delhi High Court decision to explain the requirements under Section 153C, emphasizing the need for the AO of the searched person to be satisfied that documents belong to someone else before issuing a notice. Precedents were cited to support the position that the assessing officer must establish that seized documents do not belong to the searched person. Ultimately, the court found the assessment order and demand notice unsustainable in law due to the absence of incriminating materials related to the petitioner found during the search. The orders were set aside, and the writ petition was allowed with no costs awarded. An urgent certified copy of the order was directed to be issued as per rules.
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