9911796707
TMI Blog2017 (7) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of all these facts, in our considered opinion, the assessee should be given one more opportunity to substantiate its claim before the AO by laying cogent evidences in support. We accordingly remit the issue back to the Assessing Officer for examining the confirmations of the creditors and to decide the matter afresh after making thorough enquiries as he thinks fit. Needless to say, the assessee shall be given reasonable opportunity of being heard and the assessee is directed to render full cooperation to the AO. Accordingly, the appeal of the assessee is partly allowed for statistical purposes. - ITA Nos. 3480 & 3481/Del./2014 - - - Dated:- 27-3-2017 - SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Appellant : Sh. B.L. Gupta, AR For The Respondent : Sh. A.K. Saroha, CIT/DR ORDER Per L.P. Sahu, Accountant Member: Both these appeals, pertaining to assessment years 2009-10 and 2010- 11, are filed by assessee against the orders of ld. CIT(A) dated 28.03.2014. Since common questions of law and facts are involved in both the appeals, the same are being disposed of by way of this consolidated order for brevity. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28(3) respectively. Regarding unsecured loans of ₹ 1,50,00,000/-, it was submitted that this amount was raised from the following persons, who are regular assessees, as under : (i). Ankit Rekhan : Rs.40,00,000/- (ii). Khitiz Infratech (P) Ltd . : Rs.50,00,000/- (iii). Nitin Rekhan : Rs.10,00,000/- (iv). Gaurav Rekhan : Rs.10,00,000/- (v). Star Techno Soft (P) Ltd. : Rs.40,00,000/- He also made an application u/r. 46A for admission of additional evidences filed before the ld. CIT(A) in the form of confirmation letters of the above creditors and the share applicants, stating that the assessee was prevented by sufficient cause to file these confirmations before the AO and the AO without providing reasonable opportunity to the assessee, and any independent enquiries with respect thereto, wrongly made the additions. He prayed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53C of the Act over the case of other than person searched, i.e., the assessee here. It was submitted that this issue is squarely covered by the decision of ITAT, Delhi Bench-C, dated 06.12.2016 in own case of assessee for A.Y. 2008-09 (ITA No. 1902/Del./2014), wherein the coordinate Bench on the same facts and same search, has decided the appeal in favour of the assessee on this legal aspect of the case in view of decision of Hon ble Supreme Court in the case of M/s. Calcutta Knitwears dated 12.03.2014. The Hon ble Tribunal in that case has categorically held that the satisfaction note has been recorded by the AO of the assessee and not by the AO of the person searched before handing over the seized papers. In the instant case also, the AO of the assessee has acted on the basis of same satisfaction note, which in view of the above decision of Tribunal, does not confer jurisdiction to the AO to pass any order u/s. 153C in the case of assessee for the year under consideration. 5. Addressing to the second issue, the ld. Counsel for the appellant contends that both the share applicants and all the five creditors are incometax assessees having their PAN and their confirmations were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial seized from the premises of the assessee has been examined...... (emphasis supplied). This language would only be used by the AO of 'Searched person' because the AO of Shri Mukesh Gupta would only refer him(Shri Mukesh Gupta) as 'assessee' as per practice prevalent in the Income-Tax department. iv) The Satisfaction Note further says, .....I am satisfied that the part of seized documents belong to persons other than Shri Mukesh Gupta... Clearly, this language prove that the satisfaction note has been recorded by the AO of searched person (Shri Mukesh Gupta). v) As per practice prevalent in the income tax department, AO would not write name of his assessee on the order-sheet because the said order-sheet would in any case remain in assessment folder of the assessee. However, in the present case, on the sheet recording 'Satisfaction Note', the name of M/s Garima Polymers Pvt. Ltd. is recorded in the 2nd line from the top which clearly indicate that it is not written by the AO of M/s. Garima Polymers Pvt. Ltd. Since AO of searched person would be required to write such 'Satisfaction Note' in more than one case, therefore, the name of ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order. 9. We have considered the rival submissions and have gone through the entire material available on record including the case laws cited by both the parties. 10. Adverting to the first issue regarding validity of order u/s. 153C on the basis of impugned satisfaction note recorded-whether by the AO of assessee or by AO of searched person, we think it appropriate to reproduce the impugned satisfaction note which reads as under : Search and seizure action u/s 132 of the I.T. Act was carried out on 21- 05-2009 at the residential premises of Shri Mukesh Gupta at House No. 4439, Gali No. 55, Regharpura, Karol Bagh., New Delhi. During the course of pendency of assessment proceedings in the case of Shri Mukesh Gupta for AY 2004-05 to 2010-11 ( U/s 153 A/ 143 (3), the material seized from the premises of the assessee has been examined. After examining such seized material, I am satisfied that the part of seized documents belong to persons other than Shri Mukesh Gupta. The detail of such paper is Ann A-11, Party 1, Page No, 21-29 being sale deed dated 18-11- 2008 for sale of property situated at Plot No. 4, Block No. 17A, WEA, Karol Bagh, New Delhi purchased in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Tejwant Singh and one Shri Ved Prakash Bharti. A survey too was conducted under Section 133A of the Act in the premises of the assessee. As a consequence of that, notice was issued to the assessee under Section 153C of the Act by the Assessing Officer (AO), who also co-incidentally happened to be the AO of the searched party i.e Tejwant Singh and Ved Prakash Bharti and had issued notice under Section 153A of the Act. The assessments and additions finally made in the block period were the subject matter of an appeal to the CIT(A), which upheld that. In the circumstances, the assessee's appeal to the ITAT, which upheld it at the threshold stating that the satisfaction note recorded under Section 153C of the Act in respect of the assessee i.e., the third party was invalid. 11. Based on these facts, the ld. Counsel in that case candidly conceded that since the AO in both the cases, i.e., that of the searched party and the third party were the same, the question of transmitting or recording a separate note etc. could not have been insisted upon. In the totality of facts, the Hon ble jurisdictional High Court has held as under : Plainly put, the AO was satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these facts, in our considered opinion, the assessee should be given one more opportunity to substantiate its claim before the AO by laying cogent evidences in support. We accordingly remit the issue back to the Assessing Officer for examining the confirmations of the creditors and to decide the matter afresh after making thorough enquiries as he thinks fit. Needless to say, the assessee shall be given reasonable opportunity of being heard and the assessee is directed to render full cooperation to the AO. Accordingly, the appeal of the assessee is partly allowed for statistical purposes. 14. The facts involved in the appeal for the assessment 2010-11 are also similar to that of appeal for A.Y. 2009-10, except the fact that in this case addition of ₹ 1,00,00,000/- was made as unexplained sundry creditors for want of any evidence furnished before the AO in the Assessment proceedings. In this case, the contention of the assessee has been that the above amount was received from Satya Prakash Bros (P) Ltd., as advance against sale of a property. The assessee furnished copy of sale deed dated 03.05.2010 and the confirmation of the creditor as additional evidence before the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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