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Income Tax Appellate Tribunal, DELHI BENCH “B”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI L.P. SAHU
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. Nos. 4129 - 4134/Del/2012 A.Yrs. : 2003-04 - 2008-09 ACIT, Central Circle-21, VS. M/s Command Detective & Room No. 344, E-2, ARA Securities Pvt. Ltd., Centre, RZ-61, Gali No. 25C, Indira Jhandewalan Extension, Park, New Delhi – 55 Palam Colony, New Delhi (PAN: AACCC770R) (APPELLANT) (RESPONDENT) AND C.O. Nos. 338 - 343/Del/2012 (In ITA Nos. 4129 - 4134/Del/2013) A.YRS. : 2003-04 - 2008-09 M/s Command Detective & Vs. ACIT, Central Circle-21, Securities Pvt. Ltd., Room No. 344, E-2, ARA RZ-61, Gali No. 25C, Indira Centre, Park, Jhandewalan Extension, Palam Colony, New Delhi New Delhi – 55 (PAN: AACCC770R) (APPELLANT) (RESPONDENT) Department by : Md. Mohsin Alam, CIT(DR) Assessee by : Sh. Anil Jain, CA
Date of Hearing : 08-9-2015 Date of Order : 09-10-2015 ORDER PER H.S. SIDHU, JM These appeals filed by the Revenue and Cross Objections filed by the Assessee emanate out of the common Order dated 14.5.2012 passed by the Ld. CIT(A-II), New Delhi pertaining to assessment years 2003-04 to 2008-09. Since the issues involved in
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 these appeals as well as cross objections are similar and identical, hence, for the sake of convenience, we are proceeding to dispose of the appeals and cross objections by this consolidated order, by dealing with Revenue’s Appeal being ITA No. 4129/Del/12 (AY 2003- 04) and Assessee’s Cross Objection No. 338/Del/2012 (AY 2003-04).
The grounds raised in the Revenue’s appeal being ITA NO. 4129/Del/2012 (AY 2003-04) read as under:-
“1. That the Commissioner of Income Tax (Appeals) erred in law and on facts of the case in deleting the addition of RS.31 ,32,336/- made by the Assessing Officer on account of unexplained purchase u/s 69C of the Income Tax Act, 1961.
That the Commissioner of Income Tax (Appeals) erred in law and facts of the case in not confirming the Assessing Officer's observation that the entire sales of the assessee represented its income from undisclosed sources .
That the Commissioner of Income Tax (Appeals) erred in law and on facts of the case in deleting the addition of RS.2,06,645/- made by the Assessing Officer by way of disallowance of 50% of expenditure and depreciation claimed by the assessee. 2
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 4. (a) The order of the CIT (A) is erroneous and not tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.”
The grounds raised in the Assessee’s Cross Objection being CO No. 338/Del/2012 (A.Y. 2003-04) read as under:-
“1. That in view of the facts & circumstances of the case and in law the CIT (A) has erred in not holding that the notice issued U/s 153C and the assessment order passed U/S 153C/143(3) are illegal, bad in law, without jurisdiction and barred by time limitation.
That the documents found during search proceedings, as referred to in the satisfaction note, do not belong to assessee as the same were part of working papers of the C.A Sh. B.K. Dhingra in whose office the search was conducted. Hence, the notice issued U/s 153C, based on said documents, is illegal, bad in law and without jurisdiction.
That admittedly, as recorded in the satisfaction note, no seized document related to the relevant
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 assessment year was found and the seized paper referred in the said satisfaction note were duly reflected in the regular books of A/c and no incriminating material was found. Hence the notice issued U/s 153C illegal, bad in law & without jurisdiction.
That in view of the facts & circumstances of the case the CIT (A) has erred on facts and in law in holding that the assessment has been framed in conformity with statutory provision of Section 153C r/w Section 153A of the Act.
That in view of the facts and circumstances of the case the CIT(A) has erred on facts and on law in upholding the validity of assessment particularly when the assessment had been made without complying with the law and the additions made are illegal, bad in law & without jurisdiction.
That on the facts and circumstances of the case and the provisions of the law, the Ld CIT (A) has erred in not considering the fact that the assessment proceeding for the year under appeal was not pending on the date of the recording of satisfaction u/s 153C of the Act and accordingly the same did not abate for the purpose of
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 initiation of proceedings u/s 153C and as such the assessment being bad in law deserves to be quashed.
That the respondent reserves the right to add/amend/alter the grounds of cross objection.”
Briefly stated the facts are that a search and seizure action u/s. 132 of the Income Tax Act, 1961 was carried out in the cases of B.K. Dhingra, Smt. Poonam Dhingra & M/s Madhusudan Buildcon Pvt. Ltd. on 20.10.2008 and during the course Search & seizure action u/s 132 of the I.T. Act was carried out in the cases of B.K. Dhingra, Smt. Poonam Dhingra & M/s Madhusudan Buildcon Pvt. Ltd on 20/10/2008 and during the course of search at their residential premises at F-6/5, Vasant Vihar, New Delhi certain documents belonging to the assessee were seized. On the basis of documents so found belonging to the assessee company, proceedings were initiated in the case of the assessee company u/s 153C read with section 153A of the I.T. Act. The case of assessee was initially centralized with ACIT, Central Circie-17 u/s 127 of the I.T. Act by Commissioner of Income Tax, Delhi-I, New Delhi vide order F.No. CIT-I/Cent./O9-10/1892 dated 05.01.2010. Notice u/s I53C was issued to the assessee by the then DCIT, Central Circle-17 on 08.07.20 1O, requiring the assessee company to file return within I5 days of the service of the notice. It was also stated in the letter
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 attached to the notice that earlier notice u/s I53A issued on 06.07.2010 to the assessee company requiring it to file returns for the A.Y s. 2003-04 to 2008-09 within 15 days of the service of the notices, may be treated as withdrawn as it was inadvertently issued. In response to notice u/s 153C, the assessee filed a return for assessment year 2003-04 on 06/09/2010 declaring nil income.
4.1 The case was subsequently transferred to Central Circle-21 by an order u/s 127 of the LT. Act issued vide F.No. CIT(C)- II/CENT/2010-1111029 dated 19/10/2010. A copy of the panchnama, reasons for issuing notice u/s 1 S3C and jurisdiction order dated 19-10-2010 u/s 127 were dispatched to the assessee on 03-11-2010 as sought by the assessee.
4.2 Notices u/s 142(1 )/143(2) dated 03/11/2010 along with the detailed questionnaire were issued and served upon the assessee fixing the case for 12/11/2010. In response to these notices, Shri H.L.Sekhri, CA and authorized representative attended the assessment proceedings from time to time, furnished certain details. Thereafter AO examined all the details, and completed the assessment vide order dated 31.12.2010 passed u/s. 153C r.w.s. 143(3) of the I.T. Act, 1961 and made the various additions.
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 5. Aggrieved with the aforesaid assessment order, assessee appealed before the Ld. CIT(A), who vide impugned order dated 14.5.2012 has partly allowed the appeal of the assessee.
Now the Revenue is in Appeals and Assessee has filed Cross Objections before the Tribunal.
As regards the issues involved in the Revenue appeals is concerned, the Ld. DR relied upon the order passed by the AO and the contention raised in the Grounds of Appeal filed by the Revenue. On the contrary, the Ld. Counsel for the assessee relied upon the order passed by the Ld. CIT(A).
Now we first deal with the Revenue’s appeal i.e. ITA 4129/Del/2012 (AY 2003-04) wherein two effective issues have been raised. The first issue raised vide Ground No. 1 is relating to deletion of addition of RS.31,32,336/- on account of unexplained purchase u/s 69C of the Income Tax Act, 1961 and the second issue raised vide Ground No. 3 is relating to deletion of addition of RS.2,06,645/- by way of disallowance of 50% of expenditure and depreciation claimed by the assessee. We have heard both the parties and perused the relevant records, especially the orders passed by the Ld. First Appellate Authority.
8.1 After hearing both the parties and perusing the records, especially the orders passed by the Ld. CIT(A), on the issue in 7
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 dispute. For the sake of convenience, we are reproducing the relevant findings of the impugned order passed by the Ld. CIT(A) vide para 22 from pages 47 to 49 is reproduced as under:-
“22. I have considered the assessment order, written submissions remand report and rejoinder to the remand report filed by the AR as well as the facts of the case and the position of law. In the present case it is an undisputed fact that the whole of the purchases of various amounts respectively involved in each of the assessment years in question have been duly accounted for by the appellant in its books of accounts and more particularly when the books of accounts have not been rejected by the AO, no question of disallowance of purchases uls 69C arises. The judgement in the case of CIT vs. Mls Radhika Creation ITA No. 692/2009 by Hon'ble Delhi High Court is applicable to the present facts of the case as all the purchases are accounted in the regular books, the source is obviously explained. The provisions of sec 69C are not applicable as there was no unaccounted expenditure. It is also an admitted fact that the complete books of accounts were also produced before the AO and the same were examined. No defect was pointed out. Thus, the same stood accepted by the AO. It is settled law, that books of 8
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 account maintained in the normal course of business are evidence under the 'Evidence Act' and 'Income Tax Act. During the course of assessment proceeding, the appellant has furnished full details of all expenses, sales, purchases and remaining closing stock, day wise details of sales, purchases, item-wise detail of purchases and sales giving inventory and rates which purchases and sales were affected. No defect was found by the Assessing officer either in the books of account or in the detail furnished by the appellant.
After the books of account regularly maintained in the course of business are furnished before the AO for verification, the AO may accept the same or after pointing out the specific defect may reject the books of account and determine appellant's income as per the provision of sec. 145 of the I.T. Act. Undisputedly, in the instant case, the AO has not indicated any defect either in the system of accounting followed by the appellant or in the books of accounts. There is no issue regarding change in the method of accounting during the year under consideration as compared to earlier year. When opening stock stood accepted and the sales also stood accepted as income, there is no rationale of not 9
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 accepting the purchase as expenditure. It is also admitted fact that the books of accounts were also produced before the Sales Tax Officer ward 101, New Delhi during the assessment proceeding under the Delhi Sales Tax Act. No adverse remark has been made in the Sales Tax Assessment order. It is pertinent to note that assessment of the appellant co. for the AY. 2005-06, has been completed u/s 143(3) of the I.T. Act, by ITO, Ward no 3(4), New Delhi vide Assessment Order dt 30.03.2007. Working and status of the company stood accepted in the (Page no 27 & 28 of Paper Book) said assessment order. Further, no disallowance of purchase has been made in the said Scrutiny order. In the original assessment for the AY. 2005-O6, framed under section 143(3) of the I T Act by the AO, no disallowance of purchases and the expenses had been made. The AO after application of mind and detailed scrutiny of accounts had consciously allowed said purchases and expenses. Further, the said purchases and expenses had also been allowed in summary assessment u/s 143(1) of the I T Act for the AYs. 2003-2004, 2004-2005, 2006-2007, 2007-2008 and 2008-2009. Keeping in mind the views of the Supreme Court in the case of CIT vs Kelvinator Ltd. (2010) 320 ITR
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 561 and the facts of the case, the additions made as per details hereunder made by the AO in each of the six assessment years i.e for the A.Y. 2003-04 to AT 2008-09, involved in these grounds on account of purchases u/s. 69C are deleted.
S.No. A.Y. Amount (Rs.) 1 2003-04 31,32,336/- 2 2004-05 31,32,218/- 3 2005-06 34,36,870/- 4 2006-07 28,13,390/- 5 2007-08 19,58,310/- 6 2008-09 21,37,969/-
The grounds are therefore allowed in favour of the appellant company.”
8.2 After going through the aforesaid relevant paragraph of the impugned order on the issue involved in Ground No. 1 raised by the Revenue, we are of the considered view that the Ld. CIT(A) has deleted the addition in dispute on the basis of the judgment dated 30.4.2010 passed in ITA No. 692 of 2009 by the Hon’ble Jurisdictional High Court in the case of Commissioner of Income Tax- V vs. Radhika Creation. The Hon’ble Jurisdictional High Court has
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 held that when all the purchases are accounted in the regular books of accounts, the source is explained and the provisions of section 69C are not applicable, as there was no unaccounted expenditure. The provisions of sec 69C are not applicable as there was no unaccounted expenditure. The complete books of accounts were also produced before the AO and the same were examined and the AO has not pointed out any defect in the books of accounts produced by the assessee. Thus, the same stood accepted by the AO. The books of account maintained in the normal course of business are evidence under the 'Evidence Act' and 'Income Tax Act. During the course of assessment proceeding, the assessee has furnished full details of all expenses, sales, purchases and remaining closing stock, day wise details of sales, purchases, item-wise detail of purchases and sales giving inventory and rates which purchases and sales were affected. But no defect was found by the Assessing officer either in the books of account or in the detail furnished by the assessee. After going through the reasons mentioned by the Ld. CIT(A) while deleting the addition in dispute, we are of the considered view that no interference is called for in the well reasoned order passed by the Ld. CIT(A) on the deletion of addition of Rs. 31,32,336/- made by the AO on account of unexplained purchases u/s. 69C of the I.T. Act. Respectfully following the order dated 30.4.2010 of the Hon’ble Jurisdictional High Court passed in
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 ITA No. 692 of 2009 in the case of Commissioner of Income Tax-V vs. Radhika Creation, we uphold the order of the Ld. CIT(A), who has rightly deleted the addition in dispute involved in ground no. 1 and accordingly, decide the issue in dispute against the Revenue.
8.3 Apropos to another effective issue raised in ground no. 3 relating to deletion of addition of RS.2,06,645/- by way of disallowance of 50% of expenditure and depreciation claimed by the assessee. We are of the view that the Ld. CIT(A) has adjudicate this issue vide para 27 to 31 from pages 53 to 59 of the impugned order. For the sake of convenience, we are reproducing the relevant finding of the Ld. CIT(A) vide para no. 31 at page 58 to 59 on the issue in dispute as under:-
“31. I have considered the assessment order, written submissions remand report and rejoinder to the remand report filed by the AR as well as the facts of the case and the position of law. It is observed that during the search proceedings no material has, been found which justifies the disallowance of the expenses. Moreover, books of accounts are duly audited under the Companies Act. There is no negative observation in the auditor's report. Books of accounts were produced before the AO and, the same were examined by him. No deficiency has been pointed out in the books of accounts: It is further
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 submitted that the assessment of the appellant company for the A.Y. 2002-03 has already been completed, wherein no disallowance of expenses made. I have also considered the fact that the assessment of the appellant Co. for the AY. 2005- 06, has been completed u/s 143(3) of the LT. Act by the ITO ward 3(4), New Delhi vide Assessing officer's order dated 30.03.2007, wherein working of the appellant company stood accepted and there in no disallowance of the expenses has been made. In the original assessment for the AY 2005-06, framed under section 143(3) of the I T Act by the AO., no disallowance of the expenses had been made. The AO. after application of mind and detailed scrutiny of accounts had consciously allowed the expenses. Further, the expenses had also been allowed in summary assessment u/s 143(1) of the I T Act for the AYs. 2003-2004, 2004-2005, 2006-2007, 2007-2008 and 2008-2009. In view of the above, in my considered opinion there is no substance in lump sum disallowance of the expenses in each of the respective assessment years, details as under:-
S.No AY Amount (Rs.) 1. 2003-04 2,06,645/- 2. 2004-05 2,14,343/- 3. 2005-06 2,15,407/- 4. 2006-07 2,54,451/- 5. 2007-08 2,71,568/- 6. 2008-09 2,51,061/- 14
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012
Accordingly the AO is directed to delete the addition for the AY. 2003-04 to 2008-09, details hereinabove made on this account. Regarding allowance of depreciation the AO is, directed to allow the same as per Income Tax Act Rules. This ground is therefore allowed in favour of the appellant company.”
8.4 After going through the aforesaid relevant finding of the impugned order on the issue involved in Ground No. 3 raised by the Revenue, we find that Ld. CIT(A) has observed that during the search proceedings no material has been found which justifies the disallowance of the expenses. Moreover, books of accounts were duly audited under the Companies Act. There is no negative observation in the auditor's report. Books of accounts were produced before the AO and, the same were examined by him. No deficiency has been pointed out in the books of accounts. It is further submitted that the assessment of the assessee company for the A.Y. 2002-03 has already been completed, wherein no disallowance of expenses made. We have considered the fact that the assessment of the assessee Co. for the AY. 2005-06, has been completed u/s 143(3) of the I.T. Act by the ITO ward 3(4), New Delhi vide Assessing officer's order dated 30.03.2007, wherein working of the assessee company stood accepted and there in no disallowance
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 of the expenses has been made. In the original assessment for the AY 2005-06, framed under section 143(3) of the I.T. Act by the AO., no disallowance of the expenses had been made. The AO after application of mind and detailed scrutiny of accounts had consciously allowed the expenses. Further, the expenses had also been allowed in summary assessment u/s 143(1) of the I.T. Act for the AYs. 2003-2004, 2004-2005, 2006-2007, 2007-2008 and 2008- 2009. In view of the above, we are of the considered opinion there is no substance in lump sum disallowance of the expenses in each of the respective assessment years, details as under:-
S.No AY Amount (Rs.) 1. 2003-04 2,06,645/- 2. 2004-05 2,14,343/- 3. 2005-06 2,15,407/- 4. 2006-07 2,54,451/- 5. 2007-08 2,71,568/- 6. 2008-09 2,51,061/- 8.5 Accordingly the AO was rightly directed to delete the addition for the AY. 2003-04 to 2008-09, details hereinabove made on this account. Regarding allowance of depreciation the AO was rightly directed to allow the same as per Income Tax Act Rules. Therefore, this ground was therefore allowed in favour of the assessee company. Keeping in view of the above, facts and circumstances of the case, we find that Ld. CIT(A) has rightly allowed the ground in dispute by passing a well reason order, which does not need any
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 interference on our part, hence, we uphold the same and decide the issue in dispute involved in ground no. 3 against the Revenue.
As regards ITA No. 4130-4134/Del/2012 (AY 2004-05 – 2008- 09) are concerned, we find that the issues involved in these appeals are similar and identical and also the facts and circumstances of the case are also same to that of ITA No. 4129/Del/2012 (AY 2003-04) as decided by us as aforesaid, wherein we uphold the order of the Ld. CIT(A) on both the issues in dispute. Keeping in view of the above, we uphold the orders of the Ld. CIT(A) in respect of the assessment years 2004-05 to 2008-09 also and decide the issue against the Revenue by dismissing all the 6 the appeals filed by the Revenue.
ASSESSEE’S CROSS OBJECTION
At the time of hearing, Ld. Counsel of the assessee argued the issued involved in ground no. 3 of the Cross Objection. He stated that certain documents belonging to the assessee were seized by the Search Party of the Department, which the assessee has already disclosed while filing the return of income for the assessment year in dispute. Therefore, no incriminating material belonging to the assessee were found during search period. Therefore, he stated that the assessment made in the case of the assessee is without jurisdiction, in view of the Hon’ble Jurisdictional
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 High Court decision dated 28.8.2015 in the case of CIT vs. Kabul Chawla passed in ITA No. 707, 709 and 713/2014. He further draw our attention towards the Page No. 1 – 64 especially the pages no. 14 to 15 of the Paper Book especially the Column no. 13 in which the AO has asked the assessee to explain the pages 1 to 64 of Annexure A-26 seized from the premises and F-6/6, Vasant Vihar, New Delhi and assessee has given the reply at pages 2-3 of the Paper Book-I vide letter dated 29.11.2010, in which the assessee has stated that no incriminating material was found in the course of search, relating to any assessment year. The assessment already completed for such year cannot be disturbed. He further stated that when no incriminating material are found relating to assessee in the course of search, then the proceedings initiated u/s. 153C is null and void and this issue has already been adjudicated and decided in favor of the assessee by the Hon’ble Jurisdictional High Court in the case of CIT vs. Kabul Chawla (Supra), which shall be followed in the present case of the assessee. In this behalf, he draw our attention towards the relevant para no. 38 of the order, which is reproduced hereunder:-
“38. The present appeals concern AYs 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the 18
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 search, no additions could have been made ot the income already assessed.”
On the other hand, Ld. DR opposed the request of the assessee’s counsel.
We have heard both the counsel and perused the records, we find considerable cogency in the assessee’s counsel submission that if no incriminating material belonging to the assessee were found during search period, the assessment made is without jurisdiction and proceedings initiated u/s. 153C is null and void. To support this contention, we follow the Hon’ble Jurisdictional High Court decision dated 28.8.2015 in the case of CIT vs. Kabul Chawla passed in ITA No. 707, 709 and 713/2014 wherein vide para no. 38 it has been held as under:-
“38. The present appeals concern AYs 2002-03, 2005-06 and 2006-07. On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made ot the income already assessed.”
12.1 In the background of the aforesaid discussions and precedent, we are of the considered view that the present issue involved in ground no. 3 in the cross objection is squarely covered by the 19
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 decision of the Hon’ble Jurisdictional High Court decision dated 28.8.2015 in the case of CIT vs. Kabul Chawla passed in ITA No. 707, 709 and 713/2014. Respectfully, following the above precedent, we quash the assessment made u/s. 153C and decide the issue in dispute in favour of the assessee and accordingly, the cross objection is allowed on this ground.
Secondly, Ld. Counsel of the assessee stated that AO has not recorded the Satisfaction before issuing the notice u/s. 153C of the I.T. Act to the assessee and in the absence of recording the satisfaction before issuance of the notice u/s. 153C of the I.T. Act, there is non-compliance with legal requirement regarding recording of the satisfaction and this issue. He further stated that similar issue has already been adjudicated and decided by the Hon’ble Jurisdictional High Court in the case of Pr. Commissioner of Income Tax (Central-II) vs. Aakash Arogya Mandir Pvt. Ltd. & Anr. Dated 28.7.2015 decided in ITA No. 509/2015 & Others. He draw our attention towards para 8 of the aforesaid order in which the Hon’ble High Court gave its finding. He further stated that on this ground the issuance of notice u/s. 153C is illegal and arbitrary, and stated that this ground also squarely covered by the decision of the Hon’ble Jurisdictional High Court in the case of Pr. Commissioner of Income Tax (Central-II) vs. Aakash Arogya Mandir Pvt. Ltd. & Anr. (Supra), which may be followed in the present case also. 20
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 13.1 On the other hand, Ld. DR opposed the request of the assessee’s counsel.
We have heard both the counsel and perused the records, we find considerable cogency in the contentions raised by the assessee’s counsel that AO has not recorded the Satisfaction before issuing the notice u/s. 153C of the I.T. Act to the assessee and in the absence of recording the satisfaction before issuance of the notice u/s. 153C of the I.T. Act, there is non-compliance with legal requirement regarding recording of the satisfaction on this issue. To support this contention, we note that the Hon’ble Jurisdictional High Court in the case of Pr. Commissioner of Income Tax (Central-II) vs. Aakash Arogya Mandir Pvt. Ltd. & Anr. Dated 28.7.2015 decided in ITA No. 509/2015 & Others has dealt the similar and identical issue as involved in the present case and has adjudicated and decided the same vide para no. 8 as under:-
“8. The Revenue has not placed any material to dispute the factual finding of the ITAT that the requirement of the law explained by this Court in Pepsi Foods regarding the recording of satisfaction by the AO even in respect of the searched person was not fulfilled. Consequently, the fact that it was the same
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 AO both for the searched person and the Assessee makes no difference to the consequence of non-compliance with the legal requirement regarding the recording of satisfaction. The Court also agrees with the ITAT that even if the AO were the same, satisfaction would have to be recorded separately qua the searched person and the assessee.”
14.1 In the background of the aforesaid discussions and precedent, we are of the considered view that the present issue in dispute raised in the cross objection is squarely covered by the decision of the Hon’ble Jurisdictional High Court in the case of Pr. Commissioner of Income Tax (Central-II) vs. Aakash Arogya Mandir Pvt. Ltd. & Anr. Dated 28.7.2015 decided in ITA No. 509/2015 & Others. Respectfully, following the above precedent, we also quash the assessment made u/s. 153C on this ground and decide the issue in dispute in favour of the assessee and accordingly, the cross objection is allowed on this ground. In the result, the Cross Objection filed by the assessee being CO No. 338/Del/2012 (AY 2003-04) stands allowed in the aforesaid manner.
Since we have dealt the effective grounds raised in the Cross Objections of the Assessee, hence, the other issues raised in the 22
ITA NOS.4129-4134/Del/2012 & CO NOS. 338-343/DEL/2012 Cross Objection, need not be adjudicated upon, hence, we are not dealing the same. 16. As regards C.O. No. 339-343/Del/2012 (AY 2004-05 – 2008-09) are concerned, we find that the issues involved in these Cross Objections are similar and identical and also the facts and circumstances of the case are also same to that of C.O. No. 338/Del/2012 (AY 2003-04) as decided by us as aforesaid, wherein we allowed the Assessee Cross Objection. Keeping in view of the above, we decide the issues involved in the Cross Objection in favour of the Assessee and accordingly, the Cross Objection filed by the assessee stand allowed. 17. In the result, all the 6 appeals filed by the Revenue stands dismissed and all the 6 Cross Objections filed by the Assessee are allowed. Order pronounced in the Open Court 09-10-2015.
Sd/- Sd/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER Date 09/10/2015 “SRBHATNAGAR” Copy forwarded to: - 1. Appellant - 2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,
Assistant Registrar, ITAT, Delhi Benches