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TMI Blog2013 (1) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... be held as invalid. Thus, the consequential assessments passed under section 153C r.w.s. 144C are annulled on account of the invalidity of the notices under section 153C. Assessee’s additional grounds are accordingly allowed in all the impugned assessment years. Since assessee’s additional ground is allowed on the preliminary issue of jurisdiction, there is no need for adjudicating the issues on merit in any of the assessment years. Accordingly, the other grounds raised are considered academic and hence, not adjudicated - in favour of assessee. - ITA Nos. 8133, 8137, 8138, 8136, 8135 & 8132/Mum/2010 - - - Dated:- 21-12-2012 - B. Ramakotaiah And Amit Shukla, JJ. Appellants Rep by: Shri J.D. Mistri, Shri Nishant Thakker, Shri K.K. Ved Respondent Rep by: Shri Nerender Kumar, DR ORDER Per: Bench: These six appeals are by assessee, a foreign company registered in Singapore against whom proceedings under section 153C were initiated and orders under section 144C(13) r.w.s. 143(3) were passed vide the orders dated 18.10.2010. As the said orders were covered by the proceedings of the DRP under section 144C(5), assessee preferred the present appeals befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer in respect thereof is erroneous, misconceived and illegal. 3 : 3 The Appellant submits that the Assessing Officer be directed to recompute its total income accordingly. 4:0 Re. : Non-consideration for details placed on record: 4 : 1 The Assessing Officer has erred in not considering all the details placed on record by the Appellant and in passing an order in violation of the principles of natural justice. 5:0 Re.: Levy of interest u/s. 234A and 234B of the Income-tax Act, 1961: 5 : 1 The Assessing Officer has erred in levying interest u/s. 234A and 234B of the Income- tax Act, 1961 on the Appellant. 5 : 2 The Appellant submits that considering the facts and circumstances of its case and in the particular the fact that the Appellant is a non-resident as also the law prevailing on the subject, no interest u/s. 234A and 234B of the Income-tax Act, 1961 should be levied on it. 5 : 3 The Appellant submits that the Assessing Officer be directed to delete the interest levied on it. 6:0 Re.: General: 6: 1 Each of the above grounds of appeal is without prejudice to the other 6 : 2 The Appellant craves leave to add, alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned assessment order be held to be bad in law and struck down . 4. There is a direction from the Bench to produce the relevant assessment records vide entry dated 20.04.2011 and consequent to this, the learned DR has written letters to AOs and copies were filed explaining that the required documents were not submitted by the AO concerned. The learned CIT (DR) sought adjournments, originally to 25.04.2012 for complying with the directions of the Bench and the case was adjourned to 11.06.2012. He further sought adjournment in writing as the relevant records were not submitted by AO and the case was adjourned further to 02.08.2012. Again the learned CIT (DR) sought adjournment on the reason that the DDIT concerned was requested to comply with the said direction and also has deputed his Inspector for collecting the requisite material and the matter was being pursued with the DCIT (CC) (OSD) Central Range-7, Mumbai to locate the requisite documents. On his request the case was adjourned to 02.08.2012. This letter of adjournment request was accompanied by a letter from DDIT(IT)3(1) dated 31/07/2012 intimating the position that the efforts made by the said Officer with other Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Coordinate Bench in the case of P. Satyanarayana vs. ACIT, Central Chennai reported as 50 SOT 168 Chennai (URO), Chennai. He also placed on record the judgment of the Hon'ble High Court of Delhi in the case of SSP Aviation Ltd vs. DCIT for the proposition that in view of the provisions of section 153C satisfaction that required to be reached by AO having jurisdiction over searched persons is that valuable article of books of account or documents seized during the search belongs to a person other than searched persons and it is not necessary that the documents so seized must reflect undisclosed income. He also placed Coordinate Bench decision in the case of M/s Apex Time P. Ltd vs. DCIT in ITSS(A) No.34/Mum/2008 for the block period from 09.09.1996 to 09.01.2010 dated 30.03.2011 wherein on similar facts the ITAT quashed the block assessment order following the judgment of the Hon'ble Supreme Court in the case of Manish Maheshwari vs. ACIT, 289 ITR 341 (SC). 6. We have considered the rival submissions and examined the record as placed before us. The preliminary issue raised by assessee by way of additional ground is with reference to the validity of the proceedings under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ro India Pvt. Ltd having its registered office at Bangalore. (ii) M/s Ingram Micro India Pvt. Ltd is substantially (87.60%) owned by M/s Ingram Micro Asia Ltd, a Mauritius based company, which in turn is substantially (99.98%) owned by M/s. Ingram Micro Inc., a California based company. B. The set of Tech Pacific group of companies is as under: (i) Tech Pacific (India) Exports Pte. Ltd is a Singapore based company and is a wholly owned subsidiary of M/s Tech Pacific (India) Ltd, a Mumbai based company, having 12.40% shareholding in Ingram Micro India Pvt. Ltd, a Bangalore based company. (ii). Tech Pacific (India) Ltd is wholly owned by Tech pacific Mauritius Ltd., a company registered in British Virginia Island. (iii) Tech Pacific Mauritius Ltd is wholly owned by M/s Tech Pacific Asia Ltd, a company registered in British Virginia Island. (iv) Tech Pacific Asia Ltd is wholly owned by M/s Tech Pac. Holdings, a Bermuda based company. After the acquisition of the Tech. Pac. Holdings shares by Ingram Micro Inc. in Nov. 2004,TPIEPL has come to be known as IMIEPL. For the calendar years 2001 to 2002 Tech Pacific (India) Ltd was known as God ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment was specifically asked to produce the relevant correspondence between AOs and the satisfaction note recorded for initiating proceedings and in fact the entire record of the assessments have been to directed to be produced to examine the contentions raised by assessee that there is no satisfaction recorded. As stated earlier, this Bench has directed the DR to furnish the necessary records as early as 28.04.2011 followed by repeated directions and as the last opportunity on 06.12.2012. The DR was directed to produce the assessment record and the correspondence between AOs and it was further stated that since the stay was extended four times, no further extension will be granted. Inspite of the above and also on the basis of the correspondence placed by the DRs on record, it seems that no serious efforts were made by the Revenue to furnish the relevant satisfaction note recorded by AO nor the relevant records were submitted as directed by the Bench. Despite repeated efforts and requests for adjournment by the DR for furnishing the record, the record has not been sent by the officers or any satisfaction has been placed on record. Since more than 20 months have passed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction 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 section 143 has expired, or (c) assessment or reassessment, if any, has been made, before 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, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A.] This provision is pari materia with the provisions of section 158BD (in the block assessment procedure). 11. The Hon'ble Supreme Court in the case of Manish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fts on the assessee. Audited accounts for a period of ten years may have to be reopened. Since the Assessing Officer had not recorded its satisfaction, which is mandatory and the Assessing Officer also had not transferred the case to the Assessing Officer having jurisdiction over the matter, the impugned judgments of the High Court could not be sustained. 12. Coordinate Bench of the ITAT in the case of P. Satyanarayana vs. ACIT Chennai (supra) has considered the notice issued under section 153C as invalid if no satisfaction was recorded as to whom seized material belongs. It was held as under: FACTS. A search and seizure operation on residential and business premises of assessee's father was carried out. On the basis of the seized material found in the course of the search, notice under section 153C, read with section 153A, was issued to the assessee. In response thereto, the assessee filed its return and assessment was completed. The assessee contended that the Assessing Officer had not recorded any satisfaction either in case of searched person or in case of the assessee and, therefore, impugned notice was invalid and consequential assessment was to be annulled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht adjournment on 18-01-2010. On 26-10-2010 the directions were once again repeated by the Bench. On 13-01-2011 the learned DR sought adjournment on the ground that the records are not available. Today before us the learned DR Mr. P.K. Das, filed a set of correspondence, wherein the DR has requested the concern AO as well as the concern CIT vide letter dated 26th Oct., 2010 and 8th March, 2011 to furnish the satisfaction note recorded by the AO, and also to submit the assessment record as directed by the Bench. He submitted that despite these repeated efforts, the record has not been sent by the concerned authorities. He prayed for more time. 7. Mr. M.P. Makhija, the learned A.R. submitted that adverse inference should be taken and the Bench should decide the case in his favour as more than 1 years has elapsed since directions were given to the Revenue and no records are produced till date. 8. After hearing rival contentions, we agree with the submissions of Mr. M.P. Makhija that no useful purpose would be served by adjourning the matter once again, to give further time to the Revenue, for producing the records, as more than 1 year has elapsed since the date of issua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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