9911796707
TMI Blog2018 (10) TMI 1987X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law, the learned CIT(A) erred in rejecting the appellant's contention that invoking of provisions of section 153C of the Act was bad-in-law in view of the fact that there was no money, bullion, jewellery or other valuable articles or things or books of account or documents seized which are belonging or belonged to the appellant and which disclosed that the appellant had incurred unaccounted expenditure. Ground No.3: ' On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in relying on the seized materials purported to be pertaining to land companies. Thus, has mixed up the issues involved in the land companies with the facts of the appellant's case. The issues involved and discussed by the learned A.O. in the assessment order are entirely different. The learned A.O. has also made no reference of these evidences while reaching his conclusion in the assessment order. The issues and evidences relating to the land companies are therefore irrelevant and out of context so far as the appellant is concerned. It is prayed that the evidences not related to the appellant's case, may kindly be ignored. Ground No.4: On the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is prayed that these evidences may kindly be ignored. Ground No. 8: . . On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in relying on the decision of Hon'ble Delhi High Court in the case of Malik Bros (P) Ltd vs. CIT (162 Taxman 43) and Shri Naresh Kumar Aggarwala (198 Taxman 194). In the appellant's case, none of the land owners from whom land has been purchased by the appellant confirmed the receipt of cash payment. These remarks of the Hon'ble CIT(A) is erroneous remarks. It is therefore prayed that these erroneous remarks of the Hon'ble CIT(A) may kindly be deleted. Ground No. 9: On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the charge of interest u/s.234B of the Act, having regard to the fact of the case. The appellant denies its liability for payment of interest u/s.234B of the Act. The appellant craves leave to add, omit or alter grounds of appeal before or during the hearing of the appeal. 3. Following grounds have been taken by the Revenue:- (1) "Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee's land purchases in Nevali village ignoring figures/entries of actual amount of cash payments available on specific documents gathered as a result of the search and seizure action? Some of such specific documents include page nos. 190, 196 and 1"97 of Annexure A-5 impounded on 06.03.2009 from the office at Jai Tower, CBD Belapur, Navi Mumbai, page no. 16 of Annexure A-1 seized as per panchanama dated 05.03.2009 from the residence of Mr. Dilip Dherai, page nos. 60 and 66 of Annexure A-1 seized as per panchanama dated 05.03.2009 from the residence of Mr. Dilip Dherai, etc." (6) "Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in holding that the ratio of cheque and cash payment columns of page nos. 190 and 196 gives a very unreasonable picture when in para 4.19 of his impugned order he himself has discussed the case of another company of the same Jai Corp Group viz. M/s. Iconic Realtors Ltd. where in one of its land transactions only Rs.3.25 crore of the purchase cost was reflected in books of account and the related unexplained cash expenditure was a huge amount of Rs.10.65 crore? It is important and relevant to highlight that rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s + Rs.12.59 crore by the assessee) and he has made an attempt to match this figure of Rs.50.99 crore with the figure of Rs.50.58 crore appearing in the last column of the above page no.196. But, it is important and relevant to highlight that the "progressive figure" of Rs.50.99 crore as calculated by the Ld. CIT(A), itself is factually incorrect because in the cases of 52 land companies the amount of unexplained cash expenditure was Rs.43.45 crore (Rs.38.45 crore appearing on page nos. 22 and 23 of Annexure A-1 + Rs.5 crore appearing on other pages seized from Mr. Dilip Dherai) which has been confirmed also by the Ld. CIT(A) himself in those cases, and not Rs. 38.40 crore as assumed by him in his this impugned order. Therefore, the aggregate of Rs.43.45 crore and Rs.12.59 crore as calculated by the Ld. CIT(A), is Rs.56.04 crore which has no correlation whatsoever with the figure of Rs.50.58 'crore appearing in the last column of the above page no. 196." The appellant prays that the order of Commissioner of Income-tax (Appeal) on the above ground be set aside and that of the Assessing Officer be restored. The appellant craves leave to amend or alter any grounds or add a new g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court wherein the appeal filed by the Revenue against the order of Tribunal was dismissed by the Hon'ble High Court both on legal as well as on merit. 8. We have gone through the orders of the authorities below as well as the order of the Tribunal and High Court and found that the Tribunal vide its order dated 22/03/2013 has deleted the addition after having the following observation. "9. The Ld. Senior Counsel vehemently questioned the validity of the order u/s. 153C of the Act. The Ld. Counsel challenged the very basis of the satisfaction note. It is the say of the Ld. Sr. Counsel that the AO has relied upon four documents which are exhibited at pages 17, 19, 20, 16, 42 & 43 of the Paper book , when none of these documents have been found from the possession of the assessee, these documents have been found from the possession of either Shri Dilip Dherai or M/s. Jai Corp Ltd. These documents are either in the handwriting or addressed by, or addressed to Shri Dilip Dherai or other person and not by assessee or any office Director. Questioning the satisfaction note, the Ld. Counsel submitted that there is no evidence whatsoever to conclude that any of these documents belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on Q No. 24 of statement of Dilip Dherai recorded on date of search i.e. 05.03.2009. However, the same has been retracted through an Affidavit dated and notarized on 07.03.2009 i.e. immediately after the search. It was submitted before the Income Tax Dept. on 14.05.2009 as Mr. Dilip Dherai was in great tension due to the massive search and seizure action. The contention of the lower authorities that it is after thought is thus without any merit as it has been notarized immediately after search. 4. As regards Pg Nos.22-23 of Annexure A seized from the residence of Shri Dilip Dherai, an explanation was offered to the A.O. as well as to the Ld.CIT(A) that these documents reflect total registered area, payment amounts and future requirements for amount for purchase of land. These sheets have been prepared on 28.11.2008. These sheets were in connection with land acquired till 20.11.2008, as indicated in Column 3 of Pgs 22-23. This sheet also incorporates budgeted requirement for land which has been reflected in highlighted portion in column 6 & 7 of these documents. These estimations were arrived at after discussion with Central Leadership Team of Jai Corp Group. The figure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during assessment proceedings as well as before the Ld. CIT(A). Thus, even this addition is also not based on the fact that there is no mention of name & address of the recipients. The appellant as well as other associate companies have engaged in the purchase of land and during such activities, a number of rough notings were made by staff members, brokers! agents etc. However, as already stated, the documents do not reveal anything which prove that the appellant has incurred any cash expenditure to the tune of Rs.5.O1 crore as alleged by the A.O. 7. The appellant placed reliance on the following decisions wherein the courts have held that in the absence of corroborative evidences, additions on the basis of slips, loose sheets cannot be upheld. (i) The ITAT Delhi Bench 'C' in Third Member's decision in the case of Amarjit Singh Bakshi (HUF) v. ACIT 263 ITR 75, 81 TTJ 169 while deliberating on the loose sheets of paper held that there is no documentary evidence to support the passing of cash. (ii) In the case of CIT v. Anil Bhalla (2010) 38 DTR (Del.) 113, 322 ITR 191, Tribunal held that until there are independent evidences exist, the addition on the basis of notings, jot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Delhi High Court in S.S.P. Aviation 346 ITR 177 (Del) also makes it very clear that at the time of recording satisfaction only prima fade grounds have to be mentioned and NOT that there is conclusive evidence with AC at this stage of unrecorded income etc. - which is not required at all. 3. Further, the judgement of Hon'ble Kerala High Court in the case of Dr. K.M. Mehaboob Vs. Dy.CIT, Circle 2(1), Kozhikode (2012) 26 Taxmann.com 54(Ker.) is very clear on this and it states that u/s 153C unlike Section 158BD - there is no need whether seized evidence etc. represents or proves undisclosed income of another assessee - and all that is required to be considered is whether such materials or evidence RELATES to another assessee or not - which may or may not lead to an assessment against that other person. Here too, the Hon'ble Kerala High Court has used the word 'relates' interchangeably with the word 'belong' - and this should be taken note of by the Hon'ble Bench. Hence, the plea that the reasons for satisfaction are vague and extraneous is NOT legally acceptable. II. The next issue is that the marginal note to Section '153C' very clearly states - Assessment of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Hon'ble Gujarat High Court in the case of Vijaybhai N. Chandrani V. ACIT 333 ITR 436 - relied upon by the Ld. Counsel for the appellant - clearly states that 'Held, allowing the petition, that admittedly, the three loose papers recovered during the search proceedings did not belong to the petitioner. It was not the case of the Revenue that the three documents were in the handwriting of the petitioner - in the circumstances, when the condition precedent for issuance of notice was not fulfilled action taken u/s 153C of the Act stood vitiated. The above case stands distinguished on facts - because in the present case Revenue has always stated - contended and affirmed that the loose papers are signed by Mr. Dilip Dhenia and are in his handwriting hence as per observations of Hon'ble Supreme Court in the case of Padma Sundar Rao 255 ITR 143 (SC) - even a small difference in our fact will make a world of difference - to the conclusion - hence this difference in facts - should make the conclusion different. IV. Also, the decision of Hon'ble Bangalore ITAT in the case of P. Srinivas Naik Vs. ACIT, CC-1(2), Bangalore (2009) 117 ITD 201 (Bang) - clearly holds the following TEST f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153C - AO can take into consideration material other than what was available during the search and seizure operation for making an assessment of the undisclosed income of the assessee. It shows that the satisfaction note is not the end all and AO can take action u/s. 153C based upon 'other materials' also as connected with the search proceedings. Also, Hon'ble Delhi High Court in the case of CIT-VII Vs. Chetan Das Lachman Das (2012) 211 Taxmann 61 (Del) 254 CTR 392 (Del) has also clearly held that 'seized material' can also be relied upon to draw inference that there can be similar transactions throughout the period of six years covered by Section 153A. Hence, the above judgement also supports Revenue's position that the assessment need not be based only and purely on seized material but also on "other relevant and attendant evidences" -hence the word 'belongs to' must be read and understood accordingly - permitting the above. Hence, a harmonious interpretation is needed. VII. Lastly, reliance on the decision in the case of Prithvi Prakashan by Ld. Counsel is not relevant since it relates to Section 158BD and not Section 153BC - as Section 153C is materially different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A :][Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to 97[subsection (1) of section 153A shall be construed as reference to 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.] (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction 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 furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the assessee and whether on the strength of these documents has the AO recorded the satisfaction in consonance with the letter and spirit of the provisions of the Act. A careful perusal of the documents marked as page 1 & 2 of our order show that there is not a single mention of any company. It appears that the AO was in possession with the mythological power of the "Divyadrishti" possessed by Sarathi Sanjay in Mahabharat by which he could foresee and narrate the exact happenings at the Kurushetra sitting in the room of King Dridharashtra. Our reference to this mythological character is not without any basis because just by looking at the documents at page 1 & 2, the AO could foresee that these lands belong to 52 land companies without even knowing their names at the time of recording the satisfaction. Even in the satisfaction note while concluding his discussion at para 1.6 the AO concluded as under". "In view of the above, I am satisfied that the above mentioned seized documents belong to a person i.e. the assessee (which is included in the above mentioned 52 companies) other than the person referred to in Sec. 153A within the meaning of provisions of Sec. 153C of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] 26[(2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of section 132A, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of subsection(1) of section 132A, had been found in the possession or control of that person in the course of a search under section 132.] 15. It is the say of the Ld. DR that in the light of the decision of Kerala High Court 333 ITR 281 when the AO of the person searched u/s. 153A is the same as for the other person covered u/s. 153C. There is no need to record this satisfaction u/s. 153C of the Act. That decision is only to override the procedural part because the 'sender AO' and the 'receiver AO' of the seized documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, when the condition precedent for issuance of notice was not fulfilled, action taken u/s. 153C of the Act stood vitiated. The Hon'ble High Court in its order considering the usage of a document has made the following observations: "A perusal of the said documents indicates that the same contain details of members of Samutkarsh Co-Operative Hsg. Soc. The said document undoubtedly is not a document which belongs to the petitioner though there is a reference to the petitioner in one of the loose papers under the heading Samutkarsh Members. Detail indicating plot numbers, names of members and other details." 17. We find that in this decision of the Hon'ble Gujarat High Court, even when impugned documents had reference to the assessee, the Hon'ble High Court quashed the proceedings u/s. 153C of the Act. In our case, there is not even a reference to the assessee except the name of the village in which the assessee has purchased the lands. Coming back to the provisions of Sec. 153C vis-à-vis 158BD as pointed out earlier both the sections are similarly worded section. With a marked distinction such as the marginal heading of 158 BD is undisclosed income of any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the issue of notice. It is the say of the Ld DR that in the present case there is no need for recording of the satisfaction .If this plea of the DR is accepted then the legislative intent of inserting sec.153C in the Act would get defeated because the AO will get unstoppable powers to reopen assessments for 6 years in the case of the ' Other Person 'without recording any basis [ satisfaction ] for his action .Therefore this plea of the Ld DR cannot be accepted . 19. Considering the entire facts and circumstances in the light of the impugned seized documents, we have no hesitation to hold that action taken u/s. 153C of the Act is bad in law. 20. Now coming on to the merits of the case, which is without prejudice to our findings hereinabove, the submissions of the Ld. Sr. Counsel have been incorporated hereinabove to which the Ld. DR in addition to his oral arguments filed a written submission. The Ld. DR has mainly relied upon the findings of the AO. So far as payments outside the regular books of accounts are concerned, in his written submission, the Ld. DR has explained the modus operandi of the assessee relying upon various documents seized from the premises of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its and perused the orders of the lower authorities. The entire assessment revolves around the statement of Shri Dilip Dherai recorded u/s. 132(4) of the Act on the date of search i.e. 5.3.2009. The relevant question which has been relied upon by the AO and the Ld. CIT(A) is as under: "Q. 24.Please note page No. 22 and page No. 23 which is kept before you. As I understand these are the statement as on 28th November, 2008 for the land purchased herein list of accounted payments are provided against each village. Please clarify the same.? Ans. These documents reflect total amounts disbursed for purchase of land. The details of area, village, payments made through cheque alongwith payments made through "cash" is shown very clearly in the chart. The highlighted portion reflects the cash payments disbursed through Jaicorp Office at Maker and Jai Towers. The same has been mentioned separately. The cash payment from Maker adds upto Rs. 28.01 Cr and cash payment from Jai Towers adds upto Rs. 10.43 cr. All these cash were received for these projects from Jaicorp Ltd. and the total of all these amounts works out to Rs. 38.45 Cr in cash. I was provided with these cash as and when required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual cash passing hands. The entire additions are based on the seized documents and no other material has been adverted to and which could conclusively show that the huge amount of the magnitude mentioned in the seized documents travelled from, one side to the other. The Revenue authorities have not brought a single statement on record of the vendors of land in different villages. None of the seller has been examined to substantiate the claim of the Revenue that extra cash has actually changed hands. 24. Our view is fortified by the decision of the Delhi High Court in the case of Malik Brothers Pvt. Ltd. Vs CIT 162 Taxmann 43 which is relied upon by the Ld. DR. In that case, the assessee purchased the property allegedly for Rs. 6 lakhs. The vendor in her statement confirmed that the sale consideration of said property was Rs. 45 lakhs and paid tax thereon. In view of vendor's statement, the AO made an addition of Rs. 39 lakhs to the income of the assessee towards unexplained investment. The action of the AO was justified and the additions were confirmed. Thus in view of the aforesaid decision, in the present case, none of the sellers have been examined by the AO to strengthen his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all other appeals of other assessees are similar and identical, though quantum may differ, for similar reasons, we quash the assessments and delete the additions on merit as well as on point of law in all other cases also. 27. In the result, the appeals filed by the assessees are allowed" 9. Appeal was filed by revenue against above order of Tribunal, the Hon'ble High Court vide its order dated 23/06/2017 has confirmed the order of the Tribunal after having the following observation: 3. Mr. Anil Singh, Learned Additional Solicitor General appearing on behalf of the Revenue in support of these Appeals, would submit that the questions proposed by the Revenue at page nos. 6 to 9 of the paper book of Income Tax Appeal No. 72 of 2014 are substantial questions of law and hence, the Appeal deserves to be admitted. 4. He would submit that the Tribunal has noted that Jai Corp group is a partner in 'Mumbai Special Economic Zone' and 'Navi Mumbai Special Economic Zone' projects of India. This group has floated various companies to purchase large chunks of land in the vicinity of Special Economic Zones. The group's real estate operations were being handled by Vire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of unexplained expenditure was apportioned to all the land companies floated by Jai Corp Group who had purchased land in these villages in ratio of the cost of land purchased up to 28th November, 2008. This Assessment Order was passed on 29th December, 2010 and was upheld by the Commissioner of Income Tax (Appeals) on 28th October, 2011. He held that the Assessing Officer had rightly issued notice under Section 153C of the IT Act for these years preceding the current Assessment Year and made additions under Section 69C of the said Act as unexplained expenditure. The Income Tax Appellate Tribunal set aside the order of the Commissioner of Income Tax (Appeals) pertaining to the Assessment Year 2008-09 holding that the action under Section 153C of the IT Act was bad in law. 7. It is this conclusion of the Income Tax Appellate Tribunal which is assailed in this Appeal by the Revenue. Mr. Singh would submit that right from the beginning, the facts were clear. If the Income Tax Appellate Tribunal proceeded on an erroneous assumption that the Revenue is not disputing the position as pointed out by the assessee, then, that foundation for the ultimate conclusion is bad in law and on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal (the Tribunal). 2. We find that the common impugned order disposed of the appeals in favour of the respondent assessee (who were Apellants before it) on the following two grounds: (a) The Assessing Officer does not have jurisdiction to pass the assessment order in view of Section 153C of the Act not being satisfied; and (b) There is no warrant to add the alleged cash payment to the Respondent - assessee's income in terms of Section 69C of the Act as unexplained expenditure. 3. These appeals have been filed on the following identical questions of law for our consideration : "(i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in quashing the order made under Section 143(3) of the Act by holding that Shri Dilip Dherai is an unrelated person to the assessee when the evidences discovered in the course of search operation and statements recorded under Section 132 (4) of the Act and other facts marshaled, as brought out in the assessment order and appellate order or the Ld. CIT (A) clearly show that Shri Dilip Dherai was actually working for and on behalf of the assessee as part of a larger common group with a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal with regard to Section 153C of the Act. The counsel for the Revenue was also not certain, when specifically asked. If the decision not to challenge the issues of jurisdiction was informed we are unable to understand why all these appeals were filed to raise academic issues. 5. It may be pointed out that after the appeal was argued for sometime and we were about to dictate this order, Mr. Kotangale, learned counsel for the Revenue did point out that challenge to the impugned order of Tribunal in respect of Section 153C of the Act has to be inferred from the fact that question as framed challenges the quashing of the order of the Assessing Officer under Section 143(3) of the Act by the Tribunal. Similarly he relies upon the challenge to the deletion of the addition made under Section 69C of the Act on merits and on point of law. The aforesaid questions do not bring out the challenge to the issue of jurisdiction. Nor is there any ground in support of the same. 6. We expect the Commissioner of Income Tax to examine this issue and put a record how this has happened and the corrective measures being taken by them to ensure that a considered view is taken in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhappy with the manner in which the Revenue was proceeding with the Appeals and was constrained to pass the following order on 14th September, 2016: "Mr. Kotangle, learned Counsel appearing for the Appellant Revenue seeks one more adjournment. This time the adjournment is sought so as to enable the Revenue to file further affidavit in support of its appeals. 2. These appeals were first heard on 27 June 2016. At that time, the Court had noticed that the appeals as preferred had not specifically raised any question with regard to finding of the Tribunal that the proceedings under Section 153C of the Income Tax Act, 1961 ("the Act") are without jurisdiction. Therefore, the further questions raised on merits of the assessment appeared to be academic. In the above view, the appeals were adjourned so as to enable the Revenue to bring on record whether the decision to not challenge the finding of the Tribunal with regard to applicability of Section 153C of the Act, was an informed decision or not. Further, if it was an informed decision, then why challenge the other issues when the lack of jurisdiction has been accepted. We had also directed the Registry to forward a copy of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Gupte, JJ.) have passed the following order : "Mr. Kotangle, learned Counsel appearing for the AppellantRevenue seeks one more adjournment. This time the adjournment is sought so as to enable the Revenue to file further affidavit in support of its appeals. 2 These appeals were first heard on 27 June 2016. At that time, the Court had noticed that the appeals as preferred had not specifically raised any question with regard to finding of the Tribunal that the proceedings under Section 153C of the Income Tax Act, 1961 ("the Act") are without jurisdiction. Therefore, the further questions raised on merits of the assessment appeared to be academic. In the above view, the appeals were adjourned so as to enable the Revenue to bring on record whether the decision to not challenge the finding of the Tribunal with regard to applicability of Section 153C of the Act, was an informed decision or not. Further, if it was an informed decision, then why challenge the other issues when the lack of jurisdiction has been accepted. We had also directed the Registry to forward a copy of the order to the Principal Chief Commissioner of the Income Tax. 3 Thereafter appeals reached hearing on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al)3, Mumbai21, has been filed. In the affidavit, it is stated that the Appeals relating to the a Assessment Years 2003-04,2004-05,2005-06,2006-07,2007-08 and 200809 do raise a jurisdictional issue as regards applicability of Section 153C of the Act. However, as regards the Appeals relating to Assessment Year 2009-10,no such jurisdictional issue is urged in the Appeals as it does not fall within the period of six years, as envisaged in Section 153C of the Act. It is, however, stated that the Revenue has now realized that the impugned order of the Tribunal has disposed of all the Appeals relating to the Assessment Year 2009-2010 alongwith the other Assessment Years on the basis that the Section 153C of the Act, would apply. Therefore, the Revenue ought to have raised the issue with regard to Tribunal being incorrect in holding that Section 153C of the Act applies to the Assessment Year 2009-2010. 4. In view of the above, the learned Additional Solicitor General seeks to add following additional question of law in all Appeals relating to Assessment Year 2009-10 i.e. Income Tax Appeal Nos. 72/2014; 114/2014; 122/2014; 124/2014, 225/2014 and 226/2014 for our consideration: Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional question as raised herein and serve the amended copy upon the Respondent Assessee on or before 15.11.2016. 9. In view of the above, at the request of the Revenue all these Appeals are adjourned to 22.11.2016." 14. Thereafter, for some reason or the other, the present Appeals could not be taken up. Adjournments were sought on 24th November, 2016, 5th December, 2016, 19th December, 2016, 21st December, 2016 and thereafter on 23rd January, 2017, 6th February, 2017 and 7th February, 2017. 15. On 7th February, 2017, this Court was informed that the Revenue desires to move the Income Tax Appellate Tribunal under Section 254(2) of the IT Act. That is obviously a power vested in the Tribunal so as to correct the errors in its orders. Rather, that is a jurisdiction vesting in the Tribunal enabling it to rectify any mistake apparent from the record if that is brought to its notice by the assessee or the Assessing Officer. 16. It is apparent that this jurisdiction of the Tribunal can be exercised by it, now, within 6 months from the end of the month in which the order was passed, but prior to such insertion by Finance Act, 2016 w.e.f. 1st June, 2016, it could have been corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s application for rectification, and obtain orders from the Tribunal, before the next date." 18. When the Appeal was placed thereafter, this Court was repeatedly informed that the rectification application will be heard by the Tribunal and appropriate orders will be passed. Therefore, the hearing of these Appeals be adjourned. We refused such an adjournment on 27th April, 2017. That is how we have heard both sides at some length. 19. We are not impressed by the arguments of the learned Additional Solicitor General. The Tribunal has decided, as is apparent from the record, the Appeals of the assessees pertaining to the Assessment Years 2007-08, 2008-09 and 2009-10. These Appeals were directed against the order of the learned Commissioner of Income Tax (Appeals) dated 27th October, 2011. The representatives of both sides, by consent, stated that there are 67 appeals pertaining to 52 different assessees, including the one before the Tribunal, which have been decided on identical facts. The issues are also common. That is how the Tribunal clubbed all the appeals together for the convenience sake. 20. The Tribunal noted the grounds of Appeal. It also noted the facts pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed lands would not give any basis to assume/presume/surmise that the name of the companies are mentioned in the impugned documents. The very foundation of Sec. 153C has been shaken by not fulfilling the condition precedent for the issue of notice. It is the say of the Ld DR that in the present case there is no need for recording of the satisfaction. If this plea of the DR is accepted then the legislative intent of inserting sec. 153C in the Act would get defeated because the AO will get unstoppable powers to reopen assessments for 6 year in the case of the ' Other Person ' without recording any basis [ satisfaction ] for his action. Therefore this plea of the Ld DR cannot be accepted. 19. Considering the entire facts and circumstances in the light of the impugned seized documents, we have no hesitation to hold that action taken u/s. 153C of the Act is bad in law." 21. Thereafter, in paragraph 20, the Tribunal considered the merits and once again, at great length. The particular argument revolving around the statement of Dilip Dherai and his answer to question No. 24 was also considered in paragraph 21 of the impugned order. Then, in paragraph 22, the Tribunal refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, no addition could be sustained." 22. We do not think that this case is any different from the one considered by the Division Bench in the case of M/s. Arpit Land Pvt. Ltd. and M/s. Ambit Reality Pvt. Ltd. The Assessment Year in the case of M/s. Arpit Land Pvt. Ltd. was 2008-09 and in the case of M/s. Ambit Reality Pvt. Ltd., it was 2007-08. The controversy was identical. The Division Bench, having concluded that no substantial question of law arises for consideration in the Appeals by the Revenue in the case of identical land transactions of two assessees involved in Income Tax Appeal Nos. 83 of 2014 and 150 of 2014, then, a different conclusion is not possible. We do not think that the shift in the stand of the Revenue carries its case any further. We are of the opinion that the Revenue has rightly been faulted for its approach by the Tribunal. The above are pure findings of fact and consistent with the material placed on record. Thus, the jurisdiction and vesting in the Assessing Officer could have been exercised and the satisfaction in that regard was enough, are not matters which can be decided in the further appellate jurisdiction of this Court. It is not possible for us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the appellate and Shri. Dilip Dherai are not tenable and hence, made addition on the basis of incriminating material. Page 24, Para 10: This para gave a reference to arguments made by the Ld. Senior Counsel (AR) at the ITAT proceedings of 52 Land Companies: Sub Para 1: This para is in relation to additions which were based on the seized material found. Sub Para 3: This para reads out the analysis of Page no. 22 and 23 of the loose paper folder marked as Annexure-1 seized from the premises of Dilip Dherai and further retraction by Dilip Dherai through affidavit dated 07.03.2009. The AR (of the ITAT proceedings of 52 Land Companies] bought to attention that it is mentioned in the submission that the affidavit was notarized immediately after search and therefore the contention of lower authority that it is an afterthought is not valid. Page 41, Para 20: This para gave a reference to argument by the Ld. DR at the ITAT proceeding of 52 Land Companies. The Ld. DR has mainly relied upon the findings of the AO. So far as payments outside the regular books of accounts are concerned, in his written submission, the Ld, DR has explained the modus operand! of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee cannot be justified as the assessee has not incurred any expenditure. * The balance sheet of the appellant itself shows that the assessee had insufficient fund. The AR further stated that the ITAT order was challenged by the revenue before the Hon'ble High Court and the reliance was placed on the decision of Bombay High Court in the assessee's case i.e. Commissioner of Income Tax, Central-Ill vs. Lavanya Land(P.) Ltd dated 23.06.2017, wherein the order was passed in favour of the assessee. The following para of the HC order were bought to the notice of the Members: Page 5, Para 4, 5 and 6: These paragraphs were introductory and gave a brief of issue involved. Page 23, Para 20: This paragraph deals with the decision given by the Tribunal. In this para a reference was made of tribunal order of 52 land companies, para no. 18 and 19, which reads as under:- ".................There is also a distinction between loose papers found from the possession of assessee and similar documents found from a third person. In the present case, impugned documents were not found from the possession of the assessee but was found from the possession of a third person i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was part of 23.43 Acres by giving reference of the seized material (Annexure 0-3 Pg 3 and Annexure 0-1] on Pg. 2 of the paperbook. 2. Further, he pointed out that the seized materials are itself ambiguous. The IOM dated 30.08.2008 mentions that 4.42 acres of land is yet to be registered and date of sale deed for the same acre of land mentioned on the seized material, page 3 of Annexure 0-3, is 16.07.08 i.e. prior to the date of IOM. This makes it evident that even though the IOM was prepared after the date of registration of 4.42 acre of land, it says that 4.42 acre of land is yet to be registered. Therefore, both the seized materials are ambiguous about the date of registration of the property. Pg 25 and 27 are actual sale deed evidencing the registration date as 16.07.2008 mentioned supra" 12. We had duly deliberated on the relevant para to which our attention was invited wherein we found that all the issues raised in this appeal are duly covered by the order of the Tribunal. No contrary decision was placed by learned DR. Respectfully following the order of the Tribunal in the group case of the assessee which was duly confirmed by the Hon'ble High Court, we do not find any mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
