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TMI Blog2020 (1) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... A survey under section 133A of the Actwas also carried out at the project site of the assessee company. 3. Notice under section 153C of the Act was issued on 10/3/2010 and the assessee filed their returns of income for the assessment years 2007- 08, 2008-09 and 2009-10 on 30/8/2010, 9/4/2010 and 30/9/2009 respectively declaring income of Rs. 9,04,223/-, Rs. 13,04,22,124/-and Rs. 4,51,81,260/-respectively.After scrutiny, learned Assessing Officer passed the orders dated 27/12/2010 under section 153C read with section 143(3) of the Act in respect of assessment year 2007-08 and 2008-09 by rejecting the books of accounts, and under section 143(3) of the Act in respect of the assessment year 2009-10, by making certain additions. In respect of the assessment years 2007-08 and 2008-09, learned Assessing Officer observed that during the search operations in the case of Raj Durbar group on 31/7/2008, certain documents were seized and such documents belonged to the assessee; that a survey under section 133A of the Act was also carried out at the project site of the assessee, namely, "cityscape" at the Gurugaon;that during the search and seizure operations at Raj Durbar group, computerised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 153A of the Act/153C of the Act; that there were no proceedings pending in the case of the assessee for the assessment years 2007-08 and 2008-09 as on the date of the search; and that, therefore, in the light of the decision in CIT vs. Kabul Chawla, 380 ITR 573 the proceedings under section 153C of the Act cannot be sustained. Ld. CIT(A) further observed that the satisfaction recorded by the learned Assessing Officer in these cases is grossly deficient and does not fulfil the legal requirements to assume jurisdiction under section 153C of the Act and in terms of the decision of the Hon'ble Delhi High Court in the case of PepsiCo India Holdings Private Limited 50 taxmann.com (2014) 299 (Delhi) and PepsiFoods Private Limited(2014) 52 taxmann.com 220 (Delhi),the assessment under section 153C of the Act read with section 143(3) of the Act is liable to be quashed. In the order for the assessment year 2008-09, Ld. CIT(A) observed that the facts in respect of the assessment year 2007-08 and 2008-09 are identical. Ld. CIT(A) accordingly quashed the assessment proceedings and declined to consider the sustainability of additions on merits. 6. Revenue is, therefore, before us in thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reported in PCIT vs. Super Mall Private Limited in ITA No. 449/2016 and some other cases. 8. Further, without prejudice to this argument, Ld. DR submitted that the order of Delhi High Court in the case of Kabul Chawla (supra) has not achieved finality and on the other hand the decisions reported in the case of Anil Kumar Bhatia, 24 taxmann.com 98 which has been followed in a number of cases lays down that the assessment under section 153A of the Act need not necessarily be based on incriminating material. According to her the Assessing Officer is bound to issue notices to the assessee to furnish returns for six assessment years and he is empowered to assess or reassess the total income including undisclosed income of the assessee; that the Assessing Officer is entrusted with the duty of bringing to tax the total income of the assessee whose cases are covered by section 153A of the Act by making reassessments; that the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the "total income" of the assessee in whose case search or requisition has been initiated. She also placed reliance on certain decisions of the Tribunal in support of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 153C of the Act, by placing reliance on the circular dated 31/12/2015 issued by the CBDT wherein it is stated that even the Assessing Officer of the searched person and the other person is one and the same, then also the Assessing Officer is required to record satisfaction as has been held by courts. 13. We have gone through the record in the light of the submissions made on either side. On appeal, the satisfaction note of the learned Assessing Officer, having analysed it in the light of the submissions made by the assessee, Ld. CIT(A), as a matter of fact, found that the learned Assessing Officer mentioned that during the course of search at the premises of various persons of the Raj Durbar group, various papers were found and seized, no search was conducted against the assessee company. Further, there is no mention of the contents or details of any document as to how certain documents mentioned therein "belong to" or "related to", the assessee company; that the assessment order also does not give support to the said recitals inasmuch as there is no reference of any seized material "belonging to" or even "relating to" the assessee company leave aside any incriminatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as not specifying as to how any document that was seized at the search either "belong to" or "related to" the assessee company. Consequently, we find that in view of the decision of the Hon'ble High Court in the case of PepsiCo India Holdings (supra) and Pepsi Food (supra), the assumption of jurisdiction under section 153C of the Act by the learned Assessing Officer cannot be approved and consequently the assessments are liable to be quashed. Grounds of appeal in ITA No. 6895 and 6896/Del/2015 are dismissed. 16. Now coming to ITA No. 248/Del/2016 for the assessment year 2009-10, the facts are that the return of income was filed on 30/9/2009 and notice under section 143(2) of the Act could have been issued till 30/9/2010 and as a matter of fact such notice was issued on 30/4/2010. Learned Assessing Officer resumed jurisdiction in respect of the assessee who is not a searched person on 10/3/2010, the date on which he has used possession of the seized assets/documents in his capacity as an AO of the person other than the searched person. Since by 10/3/2010 the assessment proceedings for assessment year 2009-10 are pending, they would abate on the learned Assessing Officer r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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