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TMI Blog2024 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer to enquire beyond the documents considered for deriving satisfaction note for starting the proceedings of the other person?" 3. Search and seizure operations under Section 132 of the Income Tax Act, 1961 were conducted in the case of Taneja-Puri Group of cases in various premises on 05.01.2009. During the course of the said search, incriminating material in relation to the respondent were unearthed. Significantly, the premises of respondent company were also covered under a survey operation covered under Section 133-A of the Act. 4. The facts as far as AY 2007-08 is concerned, are that a notice under Section 153C was issued to the Assessee. In response to the said notice, respondent filed its return of income on 20.10.2010, declaring current year income of Rs. 53898676/-, which was fully setoff against unabsorbed brought forward claim for business losses. 5. The original return was filed by the assessee on 30.09.2007, declaring total income of Rs. 469913140/-. There was a difference between the return filed under Section 153C and the return dated 30.09.2007 arising on account of additional claim of brokerage paid and interest charged by the respondent which was not cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has been following percentage of completion method with respect to separate Township and is recognising the sales from the project only when a certain percentage of estimated cost of construction in the said project is completed . The said method is in accordance with the standards issued by the Institute of Chartered Accountants of India and therefore on the same the cost of interest/brokerage relatable to each of the project being direct cost of construction had been rightly capitalised by the respondent. Hence now it is not open for the Respondent to make Fresh claim for deduction of these expenditures for the year under consideration. b. The addition made by the assessing officer on the strength of papers discovered at the respondent premises in relation to Arvindj was confined to Rs. 80,00,000/-, instead of Rs. 1,15,00,000/-; c. The respondent was allowed to claim proportionate deduction under section 8018 to the extent of residential units having less than 1000 square feet of built-up area." 8. Feeling aggrieved, Respondent Revenue preferred an appeal before ITAT and vide order dated 11.05.2020, ITAT allowed the respondent's appeal. 9. The facts relevant to AY 2008- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actorily explained by the respondent. c. Addition of Rs. 50,00,000/- on account of loose papers found at 28 Prithviraj Road during the course of search. The said paper contained details of land purchase from one Chacha Mange Ram for the project at Kundli and is written by DN Taneja the chairman of the respondent, in his own handwriting. The said amount represented the payment made by the Respondent outside the books of accounts. d. Denial of claim for deduction under S. 80(IB) of Rs. 7,76,97,104/- as the respondent, had violated conditions (c) of Section 80 18(10) of the Act. It is submitted that the housing project being developed by the respondent consists of different categories of flats having different built-up area. Since the housing project of the respondent is located within a distance of less than 25 kilometres from Delhi, the built up area of each residential unit in the project has to be a maximum of 1000 square feet. By assessing officer peruse the maps duly approved by the competent authority, which were filed by the respondent to conclude that flats in certain towers were of bigger sizes and had built up area of more than 1000 square feet." 12. Feeling aggrieved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses undertaken by the respondent only in response to the return filed under Section 153C and not claimed previously in the original and the revised return. 15. As far as the present appeals are concerned, the question is whether AO's assumption of jurisdiction under Section 153C of the Act qua the assessee was justified on the facts and circumstances of the case. 16. A predecessor Bench of this Court in CIT v. Kabul Chawla (2015) 61 Taxman.com 412/234 Taxman 300/[2016] 380 ITR 573/281 CTR 45 (Delhi) held that if no incriminating material is found during the course of the search in respect of an issue, then no addition in respect of such an issue can be made in the assessment under Sections 153A and 153C of the Act. The legal position summarized in the subsequent decision of Pr. CIT v Meeta Gulgutia [2017] 82 Taxmann.com 287/248 Taxman 384/395 ITR 526/295 CTR 466 (Delhi) is reproduced herein below:- "37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under section 132 of the Act, notice under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [2015] 62 taxmann.com 391/[2016] 380 ITR 612/282 CTR 321 (Delhi)/2015 SCC Online Delhi 13085, it has been held as under:- "36. The decision in SSP Aviation (supra) cannot be understood to mean that the AO has the jurisdiction to make a re-assessment in every case, where seized assets or documents are handed over to the AO. The question whether the documents/assets seized could possibly reflect any undisclosed income has to be considered by the AO after examining the seized assets/documents handed over to him. It is only in cases where the seized documents/assets could possibly reflect any undisclosed income of the Assessee for the relevant assessment years, that further enquiry would be warranted in respect of those years. Whilst, it is not necessary for the AO to be satisfied that the assets/documents seized during search of another person reflect undisclosed income of an Assessee before commencing an enquiry under section 153C of the Act, it would be impermissible for him to commence such enquiry if it is apparent that the documents/assets in question have no bearing on the income of the Assessee for the relevant assessment years. 37. As expressly indicated under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t." 19. In CIT v. Radhey Shyam Bansal [2011] 11 taxmann.com 294/200 Taxman 138/337 ITR 217/243 CTR 375 (Delhi)/2011 SCC Online Delhi 2495, it was observed as under:- "21. The word 'satisfaction' has not been defined in the Act. The satisfaction' by its very nature must precede before the papers/documents are sent by the Assessing Officer of the person searched to the Assessing Officer of the third person. Mere use or mention of the word 'satisfaction' in the order/note will not meet the requirement of concept of satisfaction as used in section 158BD. The satisfaction has to be in writing and can be gathered from the assessment order, if it is so mentioned/recorded, or from any other order, note or record maintained by the Assessing Officer of the person searched. The word 'satisfaction' refers to the state of mind of the Assessing Officer of the person searched, which gets reflected in a tangible shape/form when it is reduced into writing. It is the conclusion drawn or the finding recorded on the foundation of the material available. The word 'satisfied' occurs in many a statute and bas its connotation. The term 'is satisfied' means si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfaction is vitiated. It is to this limited extent that the satisfaction can be gone into and examined. The satisfaction though subjective, must meet the aforesaid criteria." 20. Prior to its amendment w.e.f. 01.06.2015, Section 153C of the Act read as under:- "153C. Assessment of income of any other person Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person," 21. The reason for introducing the amendment in Section 153 was considered by the predecessor Bench of this Court in the case of THE PR. COMMISSIONER OF INCOME TAX CENTRAL-3 V. M/S. DREAMCITY BUILDWELL PVT. LTD. 2019 2019 SCC OnLine Del 9624 in the following paragraphs:- "15. It can straightaway be noticed that the crucial change is the substitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it may be presumed that such document belongs to such person. It is similarly provided in Section 292C (1) (i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of "satisfaction." 17. In the present case the search took place on 5th January 2009. Notice to the Assessee was issued under Section 153 C on 19th November 2010. This was long prior to 1st June, 2015 and, therefore, Section 153C of the Act as it stood at the relevant time applied. In other words, the change brought about prospectively with effect from 1st June, 2015 by the amended Section 153C (1) of the Act did not apply to the search in the instant case. Therefore, the onus was on the Revenue to show that the incriminating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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