Income Tax Appellate Tribunal, Delhi Bench 'F'
I.C. Sudhir, Judicial Member
1. The Revenue has questioned first appellate order on the sole ground that the Ld. CIT(A) has erred in deleting the addition of Rs.68,00,000/- out of the total addition of Rs.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 Rs.34,61,585/- on account of the short term capital loss on the sale of land situated at Rajokri, Delhi (objections Nos.-1, 1.1, 2, 3 & 3.1).
3. The ld. AR drew our attention to the application moved for condonation of delay of 8 days in filing the cross-objection due to inadvertence on the part of office of the Ld. CA of the assessee. He also cited several decisions referred in the application to support its contention that there was no malafide behind the delay. The Ld. CIT DR opposed the same.
4. Considering the above submission we do not find reason to doubt the explanation furnished by the assessee for the delay. We thus condone the delay to prefer the disposal of the matter on its merits. In turn application is allowed.
5. Since the issue raised in objections Nos.-1 & 1.1 of the cross-objection preferred by the assessee questioning the validity of assessment framed u/s 153C of the Act goes to the root of the matter, we prefer to adjudicate upon it first.
6. We have heard and considered the arguments advanced by the parties in view of the orders of the authorities below, material available on record and the decisions relied upon.
7. The facts in brief are that search and seizure operation u/s 132 of the Act was carried out at the premises of Raj Darbar Group of cases on 31.07.2008. The AO noted that during the course of search operation certain documents belonging to the assessee company were also seized. He initiated proceedings u/s 153C of the Act in the case of assessee. In response to the notice issued u/s 153C of the Act the assessee filed its return of income declaring a loss of Rs.34,72,761/-. The AO noted that during the assessment year the assessee had allotted 1,25,00,000 shares of Rs.10/- each at a premium of Rs.90/- per share to the six companies. The assessee was asked to prove the genuineness of the transaction by filing necessary evidence. The assessee was also asked to file a note on share premium account. The assessee furnished the list of companies to whom shares were allotted at premium alongwith amount. It also furnished documents like confirmation, bank statement of these companies, their balance sheets etc. The AO after conducting inquiry come to the conclusion that most of the concerns did not exist on the given address. He accordingly doubted the genuineness of the identities of these concerns and made addition of Rs.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 Rs.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 Rs.68,00,000/- out of the total addition of Rs.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 the cross-objection, the Ld. AR submitted that the original return of income was filed by the assessee company declaring a loss of Rs.34,72,761/- duly supported by Audited Financial statement for the year under consideration. The said return was accepted as such no notice u/s 143(2) of the Act was served upon the assessee. Thereafter notice u/s 153C of the Act was issued to the assessee as a result of search conducted at the premises of Rajdarbar Group. In response to the notice issued u/s 153C of the Act return of income was filed declaring a loss as was declared in the original return of income. He submitted that the AO made addition of Rs.1,25,00,000/- u/s 68 of the Act on account of alleged unexplained cash credit being not satisfied with the genuineness of the share capital received by the assessee and addition of Rs.34,61,585/- was made on account of disallowance of the claimed short term capital loss on sale of land. He submitted that both these additions are not based on incriminating material detected as a result of search on Rajdarbar Group of cases. He submitted that as a result of search conducted on Rajdarbar Group of cases proceedings u/s 153C were also initiated for the assessment years 2003-04 to 2009-10, however no additions have been made therein on the basis of any incriminating material found as a result of search. Thus the additions made by the AO during the year are without jurisdiction. Ld. AR also referred page No. 19 to 23 of the Paper Book filed on behalf of the Revenue. These are copies of certificate of incorporation, e-filing receipt, Form No.-18 & Form No.-35. Referring these documents and the contents of the written synopsis, the Ld. AR contended that there is no allegation in the satisfaction note recorded by the AO for initiation of the proceedings u/s 153C in the case of the assessee, copy made available at Page No.-160 of the paper Book (assessee) that any document was found "belonging to the assessee". He submitted that photocopies of statutory documents does not constitute "material belonging to assessee". There is no disclosure by the searched person that such documents belong to the assessee. Mere use or mention of the word "Satisfaction" or the words "I am satisfied" in the order or the note would not meet the requirement of the concept of satisfaction as used in section 153C of the Act. He submitted further 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 v. Anil Kumar Bhatia  352 ITR 493/ 211 Taxman 453 (Delhi);
(ii) Al-Cargo Global Logistics Ltd. v. Dy. CIT  137 ITD 287 /23 taxmann.com 103 (Mum.) (SB);
(iii) Sanjay Agarwal v. Dy. CIT [IT Appeal No.3184 (Del) of 2013, dated 16-06-2014];
(iv) Jay Steel India v. Asstt. CIT  219 Taxman 223/36 taxmann.com 523 (Raj.);
(v) Asstt. CIT v. Manoj Narayan Agarwal  151 ITD 286/48 taxmann.com 283 (Delhi - Trib);
(vi) DSL Properties (P.) Ltd. v. Dy. CIT  60 SOT 88/33 taxman.com 420 (Delhi) (URO);
(vii) Kusum Gupta v. DCIT [IT Appeal No. 4873/Del/2009, dated 28-03-2013];
(viii) ACIT v. Preadeep Kumar [IT Appeal No.4016/Del/2011 dated 16-06-2014];
(ix) SSP Aviation Ltd. v. Dy. CIT  346 ITR 177/207 Taxman 260/20 taxmann.com 214 (Delhi)
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 assessment u/s 153C is mandatory even when no incriminating material is found during the course of search u/s 132 or in the case of requisition made u/s 132A. He submitted that the provisions u/s 153A are plain and clear and there is no ambiguity. He submitted that it is a well-established principle of interpretation of statute that the words of "statutes" must be understood in their natural, ordinary or popular sense unless the language of statues is ambiguous. He submitted that language of section 153A is simple, clear and unambiguous. It empowers the AO to issue notice and make assessment of specified six years where a search is initiated u/s 132 or requisition is made u/s 132A of the Act. He placed reliance on the following decisions:-
(1) IPCA Laboratory Ltd. v. Dy. CIT  266 ITR 521/135 Taxman 594 (SC);
(2) Prakash Nath Khanna v. CIT  266 ITR 1/135 Taxman 327 (SC);
(3) Padmasundara Rao (DECD.) v. State of Tamil Nadu  255 ITR 147 (SC);
(4) Indian Rayon Corp. Ltd. v. CIT  231 ITR 26/97 Taxman 501 (Bom.);
(5) Smt. Tarulata Shyam v. CIT  108 ITR 345 (SC)
13. Having gone through the decisions relied upon, we find that the Hon'ble Delhi High Court in the case of Pepsi Foods (P.) Ltd. (supra) after discussing the issue in detail has been pleased to come to the conclusion that in the satisfaction note apart from saying that the documents belong to the petitioner and that the AO is satisfied that it is a fit case for issuance of notice u/s 153C. Thus relevant extract of the decision is being reproduced below:-
'11. It is evident from the above satisfaction note that apart from saying that the documents belonged to the petitioner and that the Assessing Officer is satisfied that it is a fit case for issuance of a notice under section 153C, there is nothing which would indicate as to how the presumption which are to be normally raised as indicated above, have been rebutted by the Assessing Officer. Mere use or mention of the word "satisfaction" or the words "1 am satisfied" in the order or the note would not meet the requirement of the concept of satisfaction as used in Section 153C of the said Act. The satisfaction note itself must display the reasons or basis for the conclusion that the Assessing Officer of the searched person is satisfied that the seized documents belong to a person other than the searched person. We are afraid that going through 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 section 153C of the Act does not arise. The Hon'ble High Court has also been pleased to make it clear that the AOs should not confuse the expression "belongs to" with the expression "relates to" or again "refers to". A registered sale deed for example "belongs to" the purchaser of the property although it obviously "relates to" or again "refers to" vendor. In this example if the purchaser's premises are searched and registered with sale deed is seized, it cannot be said that it "belongs to" the vendor just because his name is mentioned in the document. In the converse case if the vendor's premises are searched and a copy of the sale deed is seized, it cannot be said that the said copy "belongs to" the purchaser just because it refers to him and the purchasers holds the original sale deed. In this light, it is obvious that none of the three sets of documents/copies of preference shares, undersigned leaves of cheque books and the copy of the supply and loan agreement can be said to "belong to" the petitioner. With these observations the Hon'ble High Court was pleased to hold that the ingredients of section 153C of the Act have not been satisfied. Consequently notices issued u/s 153C were quashed.
15. Similar are the facts of the present case before us. The documents seized during the course of search and seizure proceedings from the Rajdarbar Group have been referred as "relating to" the assessee, in the satisfaction note recorded by the AO while initiating the proceedings u/s 153C of the Act against the assessee. Finding a reference in the satisfaction note recorded by the AO for initiation of proceedings u/s 153C of the Act against the assessee are certificate of incorporation, e-filing receipt, Form No.-18, Form No.-35. In view of the ratio laid down in the above discus
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sed decisions of Hon'ble High Court in the cases of Pepsico India Holdings (P.) Ltd. (supra) and Pepsi Foods (P.) Ltd. (supra) the satisfaction of the AO that the said documents "belong to" the assessee is condition precedent to initiate proceedings u/s 153C of the Act. In absence of such finding by the AO, the notice issued u/s 153C in the present case is held invalid. Besides there was no incriminating material found during the course of search and the assessment was not pending or abated to justify the assessment framed u/s 132A r.w.s 153C as well as section 143(3) of the Act against the assessee. This view is supported with the decisions cited in para No.-11 hereinabove. 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. The issue raised in objections Nos. 1 & 1.1 of the Cross-objection is thus decided in favour of the assessee. These objections are thus allowed. 16. In view of the above finding when the very assessment has been held as void, the remaining objections of the cross-objection questioning the additions sustained by the Ld. CIT(A) and the grounds of the appeal preferred by the Revenue questioning the action of the CIT(A) in deleting some additions have become infructuous. The same are being disposed of as such. 17. In result, cross-objection preferred by the assessee is allowed and the appeal preferred by the Revenue is dismissed.