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TMI Blog2015 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... of search and the assessment was not pending or abated to justify the assessment framed u/s 153A r.w.s 153C as well as section 143(3) of the Act against the assessee. The assessment in the question framed in furtherance to the said invalid notice and in absence of incriminating material is thus held as void and the same is quashed as such. - Decided in favour of the assessee. - I.T.A. No. 4666/Del/2012, C.O. No.-447/Del/2012 - - - Dated:- 6-1-2015 - Sh. I. C. Sudhir And Sh. T. S. Kapoor,JJ. For the Appellant : Sh. Sunil Bajpai, CIT DR For the Respondent : Sh. Gautam Jain, CA ORDER Per I. C. Sudhir, JM The Revenue has questioned first appellate order on the sole ground that the Ld. CIT(A) has erred in deleting the addition of ₹ 68,00,000/- out of the total addition of ₹ 1,25,00,000/- made by the AO u/s 68 of the Act on account of unexplained share application money by admitting additional evidence in contravention of Rule 46A of Income Tax Rules 1962. 2. The assessee on the other hand has objected first appellate order on the validity of the assessment framed u/s 153C r.w.s. 143(3) of the Act and upholding of the disallowance of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of ₹ 1,25,00,000/- claimed to be received from these companies as unexplained cash credit u/s 68 of the Act. 8. The assessee had also claimed a short term capital loss of ₹ 34,61,585/- on sale of land situated at Rajokri, Delhi. The AO was not satisfied with the explanation furnished by the assessee in this regard to justify the claimed loss and he disallowed the amount and added the same to the income of the assessee. 9. Before the Ld. CIT(A) the assessee questioned the validity of the assessment framed u/s 153C of the Act in absence of incriminating material found during the course of search and the additions made by the AO on the merits of the case. The Ld. CIT(A) did not agree with the contention of the assessee regarding the validity of assessment framed u/s 153C of the Act in absence of incriminating material found during the course of search. He however has deleted the addition of ₹ 68,00,000/- out of the total addition of ₹ 1,25,00,000/- made by the AO on account of unexplained share application money and has sustained the disallowance of claimed loss of Rs,34,61,585/-. 10. In support of the issue raised in objection Nos.1 1.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that the statutory documents are not incriminating material which confer jurisdiction u/s 153C of the Act. In this regard he placed reliance on the decision of Hon ble Delhi High Court in the cases of Pepsico India Holdings (P.) Ltd., WP(C) No.-414/2014 dated 14.08.2014 and in the case of Pepsi Foods (P.) Ltd. in WP(C)-415/2014 dated 07.08.2014. 11. Ld. AR also placed reliance on the following decisions:- (i) CIT vs Anil Kumar Bhatia 352 ITR 493 (Del.); (ii) Al-Cargo Global Logistics Ltd. vs ACIT 137 ITD 287 (Mum.) {SB}; (iii) Sanjay Agarwal vs DICT (ITA No.-3184/Del/2013 dated 16.06.2014); (iv) Jay Steel India vs. ACIT 259 CTR 281 (Raj.); (v) ACIT vs Manoj Narayan Agarwal 160 TTJ 416 (Del.); (vi) M/s DSL Properties, ITA-1344/Del/2012 order dated 22.03.2013; (vii) Kusum Gupta others vs DCIT (ITA No.-4873/Del/2009 order dated 28.03.2013); (viii) ACIT vs Preadeep Kumar (ITA No.-4016/Del/2011 order dated 16.06.2014); (ix) SSP Aviation Ltd. vs DCIT 346 ITR 177 (Del.) 12. Ld. DR on the other hand placed reliance on the first appellate order with this contention that a plain reading of provision of section 153C of the Act indicates that the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the contents of the satisfaction note, we are unable to discern any satisfaction of the kind required under Section 153C of the said Act. 12. This being the position the very first step prior to the issuance of a notice under Section153C of the said Act has not been fulfilled. Inasmuch as this condition precedent has not been met, the notices under Section 153 are liable to be quashed. It is ordered accordingly. The writ petitions are allowed as above. There shall be no order as to costs. 14. Again in the case of Pepsico India Holdings Pvt. Ltd. (cited supra), the Hon ble High Court has been pleased to observe that the finding of the photocopies in the possession of a searched person does not 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 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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