Om Properties & Developers, Pune v. DCIT, Central Circle 1(1), Pune

ITA 1996/PUN/2012 | 2008-2009
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 199624514 RSA 2012
Assessee PAN AABFO6235E
Bench Pune
Appeal Number ITA 1996/PUN/2012
Duration Of Justice 3 year(s) 11 month(s) 13 day(s)
Appellant Om Properties & Developers, Pune
Respondent DCIT, Central Circle 1(1), Pune
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 28-09-2016
Date Of Final Hearing 05-07-2016
Next Hearing Date 05-07-2016
Assessment Year 2008-2009
Appeal Filed On 15-10-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE MS. SUSHMA CHOWLA JM AND SHRI ANIL CHATURVEDI AM . / ITA NO. 1 996 /PN/20 12 / ASSESSMENT YEAR : 20 0 8 - 0 9 M/S. OM PROPERTIES & DEVELOPERS MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO P UNE 411001 . / APPELLANT PAN: AABFO6235E VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE . / RESPONDENT . / ITA NO S . 1125 & 1126 /PN/20 12 / ASSESSMENT YEAR S : 2007 - 08 & 20 08 - 09 M/S. ASWANI ASSOCIATES MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 . / APPELLANT PAN: AA MFA4202C VS. THE DY. COMMISS IONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE . / RESPONDENT ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 2 . / ITA NO. 1473 /PN/20 12 / ASSESSMENT YEAR : 20 08 - 09 THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE . / APPELLANT V S. M/S. ASWANI ASSOCIATES MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 . / RESPONDENT PAN: AA MFA4202C . / ITA NO. 1 123 /PN/20 12 / ASSESSMENT YEAR : 20 0 7 - 0 8 RAJKUMAR ASWANI MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 . / APPELLANT PAN: A EXPA7340C VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE . / RESPONDENT ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 3 . / ITA NO. 1127 /PN/20 12 / ASSESSMENT YEAR : 20 08 - 09 / ASSESSMENT YEAR : 20 08 - 09 SHRICHAND ASWANI MZSK & ASSOCIATES (FORM ERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 . / APPELLANT PAN: A E HPA1627G VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE . / RESPONDENT ASSESSEE BY : SHRI R.G. NAHA R REVENUE BY : SHRI ANIL CHAWARE / DATE OF HEARING : 15 . 0 9 .201 6 / DATE OF PRONOUNCEMENT: 28 .0 9 .201 6 / ORDER PER SUSHMA CHOWLA J M : T HIS BUNCH OF SIX APPEALS RELATING TO DIFFERENT ASSESSEE AGAINST SEPARATE ORDERS OF CIT(A) RELAT E TO DIFFERENT YEARS WHICH ARE AS UNDER: - SR NO ITA NO. APPELLANT RESPONDENT ASSESSMENT YEAR DATE OF ORDER OF SECTION UNDER NO . YEAR ORDER OF CIT(A) UNDER WHICH APPEAL FILED 1 19 96/PN/2012 OM PROPERTIES & DEVELOPERS MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES ) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 PAN: AABFO6235E DCIT CENTRAL CIRCLE 1(1) PUNE 2008 - 09 30.04.2012 143(3) R.W.S 153C ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 4 2 1125/PN/2012 M/S. ASWANI ASSOCIATES MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 PAN: A AMFA4202C DCIT CEN TRAL CIRCLE 1(1) PUNE 2007 - 08 15.12.2011 143(3) R.W.S. 153C 3 1126/PN/2012 - DO - - DO - 2008 - 09 15.12.2011 143(3) R.W.S. 153C 4 1473/PN/2012 DCIT CENTRAL CIRCLE 1(1) PUNE M/S. ASWANI ASSOCIATES MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIA TES) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 PAN: AAMFA4202C 2008 - 09 15.12.2011 143(3) R.W.S. 153C 5 1123/PN/2012 RAJKUMAR ASWANI MZSK & ASSOCIATES (FORMERLY SHAH KHANDELWAL JAIN & ASSOCIATES) DCIT CENTRAL CIRCLE 1(1) PUNE 2007 - 08 15.12.2011 143(3) R.W.S. 153A ASSOCIATES) CH ARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 PAN: AEXPA7340C 6 1127/PN/2012 SHRICHAND ASWANI MZSK & ASSOCIATES (FORMERLY SHAH KHANDE LWAL JAIN & ASSOCIATES) CHARTERED ACCOUNTANTS LEVEL 3 BUSINESS BAY PLOT NO.84 WELLESLEY ROAD NEAR RTO PUNE 411001 PAN:AEHPA1627G DCIT CENTRAL CIRCLE 1(1) PUNE 2008 - 09 15.12.2011 143(3) R.W.S. 153A 2. THE ISSUE ARISING IN ITA NOS.1996/PN/2012 1 125/PN/2012 1126/PN/2012 AND 1473/PN/2012 ARE INTER - RELATED AND WE PROCEED TO TAKE UP THESE APPEALS FIRST. THESE APPEALS ARE DECIDED BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 5 3. THE ASSESSEE IN ITA NOS.1996/PN/2012 1125/PN/2012 AND 1126/PN /2012 HAS RAISED JURISDICTIONAL ISSUE AGAINST INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT WHICH READ AS UNDER: - 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF THE ACT IT BE HELD THAT THE INITIATION OF PROCEEDINGS U/S. 153C IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND WITHOUT COMPLYING THE INGREDIENTS AND REQUIREMENTS OF THE SAID SECTION. THE ASSESSMENT FRAMED U/S.153C THEREFORE BE HELD AS NOT TENABLE IN THE EYES OF LAW. THE ASSESSMENT SO FRAMED BE CA NCELLED. JUST AND PROPER RELIEF BE GRANTED TO THE APPELLANT ON THIS SCORE. ASSUMING WITHOUT ADMITTING THAT PROCEEDINGS U/S.153C HAVE LAWFULLY BEING INVOKED AND THE ASSESSMENT FRAMED THEREUNDER IS TENABLE IN LAW. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS CHALLENGING THE JURISDICTION EXERCISED UNDER SECTION 153C OF THE ACT. HE FURTHER POINTED OUT THAT THERE WERE VARIOUS LIMBS TO EXERCISE OF JURISDICTION UNDER SECTION 153C OF THE A CT . F IRST OF ALL NO REASONS WERE RECORDED FOR INITIATING THE PROCEEDINGS UNDER F IRST OF ALL NO REASONS WERE RECORDED FOR INITIATING THE PROCEEDINGS UNDER SECTION 153C OF THE ACT. THE SECOND ISSUE WHICH HAS TO BE SEEN IS WHETHER ANY DOCUMENTS WERE SEIZED AND FORWARDED TO THE ASSESSING OFFICER. THE THIRD LIMB WAS WHETHER THE DO CUMENTS SEIZED WERE INCRIMINATING AND FOURTH LIMB WAS WHETHER SUCH DOCUMENTS RELATE TO THE YEAR UNDER APPEAL. HE STRESSED THAT THE SATISFACTION RECORDED BY THE ASSESSING OFFICER IN - CHARGE OF THE SEARCHED PERSON IS MISSING AND EVEN THE DOCUMENTS FOUND WERE NOT INCRIMINATING. OUR ATTENTION WAS DRAWN TO THE COPY OF NOTICE ISSUED UNDER SECTION 153C OF THE ACT WHEREIN THERE IS NO RECORDING OF SATISFACTION BY THE ASSESSING OFFICER. HE FURTHER REFERRED TO THE LETTER DATED 19.05.2016 FILED BY THE ASSESSING OFFI CER WHEREIN THE ASSESSING OFFICER HIMSELF HAS ADMITTED THAT NO SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER BEFORE FORWARDING THE INFORMATION TO THE ASSESSING OFFICER OF THE ASSESSEE BEFORE US. HE FURTHER ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 6 POINTED OUT THAT NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED TO THE ASSESSEE IN RESPONSE TO WHICH PROCEEDINGS WERE TAKEN UP AGAINST THE ASSESSEE. HOWEVER THE ASSESSING OFFICER OF THE SEARCHED PERSON HAS FAILED TO RECORD SATISFACTION BEFORE INITIATING PROCEEDINGS UNDER SECTION 153C OF T HE ACT. HE FAIRLY ADMITTED THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON I.E. THE PARTNER OF ASSESSEE FIRM AND THE ASSESSEE FIRM WAS THE SAME BUT SINCE CERTAIN DOCUMENTS WERE IMPOUNDED DURING THE COURSE OF SEARCH AGAINST PARTNER OF THE FIRM THEN IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO RECORD SATISFACTION NOTE BEFORE PROCEEDING AGAINST THE ASSESSEE FIRM PERSE. IN THIS REGARD THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE ORDER OF HONBLE SUPREME COURT IN CIT VS. CALCUTTA KNITWEARS (2014) 43 TAXMANN.COM 446 (SC). IT WAS FURTHER POINTED OUT BY HIM THAT THOUGH THE DECISION OF HONBLE SUPREME COURT WAS IN RELATION TO SECTION 158BD OF THE ACT BUT SAME PRINCIPLE HAS BEEN APPLIED BY THE DELHI BENCH OF TRIBUNAL IN BHAW NA BHALLA & ANR. VS. ACIT & ANR. (2016) 46 CCH 577 (DEL - TRIB) WHERE THE PROCEEDINGS WERE INITIATED UNDER SECTION 153C OF THE ACT. HE FURTHER STATED THAT EVEN CBDT HAS CLARIFIED THAT RECORDING OF SATISFACTION NOTE SHOULD BE STRICTLY COMPLIED WITH EVEN IF THE ASSESSING OFFICER OF THE SEARCHED PERSON AND OTHER PERSON IS ONE AND THE SAME. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND PLACED ON RECORD THE COPIES OF APPRAISAL REPORT AND ON THE ANALYSIS OF SEIZED DOCUMENTS SEIZE D FROM THE RESIDENTIAL PREMISES OF SHRI RAJU SHAMANDAS ASWANI SHRICHAND ASWANI SATISH ASWANI AT PIMPRI PUNE . C ERTAIN LOOSE PAPERS WERE FOUND WHICH RELATED TO THE ASSESSEE FIRM AND HENCE THE PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE. ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 7 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY IN THE FACTS OF THE CASE THE ASSESSEE WAS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE. SEARCH AND SEIZURE OPERATIONS UNDER SECTION 132 OF THE ACT WERE CARRIED OUT ON 13.08.2008 A GAINST THE PARTNERS OF ASSESSEE FIRM AND NO SUCH ACTION WAS AGAINST THE ASSESSEE ITSELF I.E. AGAINST M/S. OM PROPERTIES & DEVELOPERS AND M/S. ASWANI ASSOCIATES WHO ARE APPELLANTS BEFORE US. THOUGH SURVEY UNDER SECTION 133A OF THE ACT WAS CARRIED OUT IN T HE GROUP CASES OF THE ASSESSEE ON 13.08.2008 ITSELF BUT THE PROCEEDINGS INITIATED AGAINST THE ASSESSEE FIRM WERE UNDER SECTION 153C OF THE ACT. THE CLAIM OF ASSESSEE BEFORE US IS THAT BEFORE INITIATING THE AFORESAID PROCEEDINGS UNDER SECTION 153C OF THE A CT A SATISFACTION NOTE IS REQUIRED TO BE RECORDED BY THE ASSESSING OFFICER WHO IS IN - CHARGE OF SEARCHED PERSON BEFORE PARTING WITH SEIZED MATERIAL RELATABLE TO THE OTHER PERSONS AND THE ASSESSING OFFICER INCHARGE OF THE OTHER PERSONS THEN IS TO PROCEED WITH THE PROCEEDINGS. 7. UNDER THE PROVISIONS OF SECTION 153C OF THE ACT IT IS PROVIDED NOTWITHSTANDING ANYTHING CONTAINED IN SECTIONS 139 147 148 149 151 AND 153 OF THE ACT WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY BULLION JEWELLER Y OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONGED TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT THEN SUCH BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISIT IONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JU RISDICTION OVER SUCH PERSONS. UNDER THE SAID SECTION 15 3 C OF THE ACT IT IS PROVIDED THAT IF PURSUANT TO SEARCH ON A PERSON CERTAIN DOCUMENTS OR ASSETS ARE FOUND OR SEIZED WHICH BELONG TO SUC H OTHER PERSON THEN WHERE THE ASSESSING OFFICER IS SATISFIED THAT SUCH ASSETS OR ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 8 DOCUMENTS SEIZED BELONGS TO ANY PERSON OTHER THAN THE PERSON SEARCHED THEN SUCH DOCUMENTS OR ASSETS SEIZED WOULD BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED UNDER SECTION 15 3 C OF THE ACT AGAINST SUCH OTHER PERSON AND THE PROVISIONS OF CHAPTER SHALL APPLY ACCORDINGLY. IN OTHER WORDS IN CASE DURING THE COURSE OF SEARCH ON A PERSON A CERTAIN DOC UMENTS BOOKS OF ACCOUNT OR ASSETS ARE FOUND AND / OR SEIZED WHICH DO NOT BELONG TO SEARCHED PERSON BUT BELONG TO THIRD PARTY THEN IN CASE THE ASSESSING OFFICER OF SEARCHED PERSON IS SATISFIED THAT SUCH ASSETS OR DOCUMENTS SEIZED BELONGS TO SUCH OTHER PE RSON THEN THE DOCUMENTS BOOKS OF ACCOUNT OR ASSETS WOULD BE HANDED OVER TO SUCH ASSESSING OFFICER HAVING JURISDICTION OVER OTHER PERSON WHO SHALL PROCEED AGAINST SUCH OTHER PERSON. 8 . THE HONBLE SUPREME COURT IN CIT VS. CALCUTTA KNITWEARS (SUPRA) HAVE LAID DOWN THE RATIO IN RELATION TO EXERCISE OF JURISDICTION UNDER SECTION 158BD OF THE ACT. THE HONBLE SUPREME COURT HELD THAT FOR THE PURPOSE OF SECTION 158BD SATISFACTION NOTE IS SINE QUA NON AND MUST BE PREPARED BY THE ASSESSING OFFICER BEFORE HE T RANSMITS THE RECORDS TO THE OTHER ASSESSING OFFICER WHO HAS JURISDICTION OVER SUCH OTHER PERSON. THUS THE SATISFACTION NOTE IS TO BE RECORDED BY THE ASSESSING OFFICER WHO IS IN - CHARGE OF THE SEARCHED PERSON AND BEFORE HANDING OVER THE RECORDS TO THE ASS ESSING OFFICER WHO HAS JURISDICTION OVER SUCH OTHER PERSON DOCUMENTS OR ASSETS RELATING TO WHOM WERE FOUND DURING THE COURSE OF SEARCH. THE HONBLE SUPREME COURT FURTHER HELD THAT THE SATISFACTION NOTE COULD BE PREPARED AT EITHER OF THE FOLLOWING STAGES : (A) AT THE TIME OF OR ALONG WITH THE INITIATION OF PROCEEDINGS AGAINST THE SEARCHED PERSON UNDER SECTION 158BC OF THE ACT; (B) ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 9 ALONG WITH THE ASSESSMENT PROCEEDINGS UNDER SECTION 158BC OF THE ACT; AND (C) IMMEDIATELY AFTER THE ASSESSMENT PROCEEDINGS ARE COMPLETED UNDER SECTION 158BC OF THE ACT OF THE SEARCHED PERSON. 9 . THE CBDT IN VIEW OF THE PROPOSITION LAID DOWN BY THE HONBLE SUPREME COURT HAS PASSED THE CIRCULAR NO.24/2015 DATED 31.12.2015 VIS - - VIS RECORDING OF SATISFACTION NOTE UNDER SECTION 158BD / 153C OF THE ACT. THE CIRCULAR PROVIDES AS UNDER: - 2. THE HON'BLE SUPREME COURT IN THE CASE OF M / S CALCUTTA KNITW E ARS IN IT S DETAILED JUDGMENT IN CIVIL APPEAL NO.39 5 8 OF 2014 DATED 12.3.2014 (AVAILABLE IN NJRS AT 2014 - LL - 0312 - 51 ) HAS LAID DOWN THA T FOR THE PURPOSE OF SECTION 15 8BD OF THE ACT RECORDING OF A SATISFACTION NOTE IS A PREREQUISITE AND THE SATISFACTION NOTE MUST BE PREPARED BY THE A O BEFORE HE TRANS M ITS THE RECORD TO THE OTHER A O WHO HAS JURISDICTION OVER SUCH OTHER PERSON U/S 15 8B D . THE HON'BL E COURT HELD THAT 'THE SATISFACTION NOTE COULD BE PREPARED AT ANY OF THE FOLLOWING STAGES: (A) AT THE TIME OF OR ALONG WITH THE INITIATION OF PROCEEDINGS AGAINST THE SEARCHED PERSON UNDER SECTION 15 8BC OF THE ACT; OR (B) IN THE COURSE OF THE ASSES SMENT P ROCEE DINGS UNDER SECTION 15 8BC OF THE ACT; OR (C) IMMEDIATELY AFTER THE ASSESSMENT PROCEEDINGS ARC COMPLETED UNDER SECTION 15 8BC OF THE AFTER THE ASSESSMENT PROCEEDINGS ARC COMPLETED UNDER SECTION 15 8BC OF THE ACT OF THE SEARCHED PERSON.' 3. SEVERAL HIGH COURTS HAVE HELD THAT THE PROVISIONS OF SECTION 15 3C OF THE ACT AR E SUBST ANTIALLY SIMILAR/PARI - MATERIA TO THE PROVISIONS OF SECTION 158 BD OF THE ACT AND THEREFORE THE ABOVE GUIDELINES OF THE HON'BLE SC APPLY TO PROCEEDINGS U/S 153 C OF THE IT ACT FOR THE PURPOSE OF ASSESSMENT OF INCOME OF OTHER THAN THE SEARCHED PERSON . THIS VIEW HAS BEEN ACCEPTED BY C B DT. 4. THE GUIDELINES OF THE HON'BLE SUPREME COURT AS REFERRED TO IN PARA 2 ABOVE WITH REGARD T O RECORDING OF SATISFACTION NOTE MAY BE BROUGHT TO THE NOTICE OF ALL FOR STRICT COMPLIANCE. IT I S FURTHER CLARIFIED THAT E VEN IF THE AO OF THE SEARCHED PERSON AND THE 'OTHER PERSON' IS ONE AND THE SAME THEN ALSO HE IS REQUIRED TO RECORD HIS SATISFACTION AS HAS BEEN HELD BY THE COURTS 5 . IN VIEW OF THE ABOVE FILING OF APPEALS ON THE ISSUE OF RECORDING O F SATISFACTION NOT E SHOULD ALSO BE DECIDED IN THE LIGHT OF THE ABOVE JUDGEMENT. ACCORDINGLY THE BOARD HEREBY DIRECTS THAT PENDING LITIGATION WITH REGARD TO RECORDING OF SATISFACTION NOTE UNDER SECTION 158B D / 153C SHOULD BE WITHDRAWN/NOT PRESSED IF IT DOES NOT MEET THE GUIDE LINES LAID DOWN BY THE APE X COURT. ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 10 1 0 . THE CIRCULAR ISSUED BY THE CBDT HAS RECOGNIZED THAT THE SATISFACTION NOTE IS A PRE - REQUISITE FOR INITIATING PROCEEDINGS UNDER SECTION 158BD OF THE ACT WHICH IS TO BE PREPARED BY THE ASSESSING OFFICER BEFORE HE TRAN SMITS THE RECORD TO OTHER ASSESSING OFFICER WHO HAS JURISDICTION OVER SUCH OTHER PERSON UNDER SECTION 158BD OF THE ACT. IT IS ALSO PROVIDED IN THE SAID CIRCULAR THAT WHERE THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE OTHER PERSON IS ONE AND THE S AME THEN ALSO HE IS REQUIRED TO RECORD HIS SATISFACTION AS HAS BEEN HELD BY THE COURTS. THE STAGES OF RECORDING OF SATISFACTION NOTE HAS BEEN RECOGNIZED AS LAID DOWN BY THE HONBLE SUPREME COURT IN CIT VS. CALCUTTA KNITWEARS (SUPRA) IN ALL THREE STAGES A S MENTIONED ABOVE. THE CBDT CIRCULAR FURTHER LAYS DOWN THAT THE PROVISIONS OF SECTION 153C OF THE ACT ARE SUBSTANTIALLY SIMILAR / PARAMETRIA TO THE PROVISIONS OF SECTION 158BD OF THE ACT AND THEREFORE THE ABOVE GUIDELINES OF THE HONBLE SUPREME COURT WOU LD APPLY TO PROCEEDINGS UNDER SECTION 153C OF THE ACT FOR THE PURPOSE OF ASSESSMENT OF INCOME OF OTHER THAN THE SEARCHED PERSON. THE CBDT HAS ACCEPTED THIS VIEW CATEGORICALLY. FURTHER DIRECTIONS HAVE BEEN GIVEN BY CBDT VIS - - VIS FILING OF APPEALS ON TH E ISSUE OF RECORDING OF SATISFACTION NOTE AND IT IS BEING DIRECTED THAT THE PENDING LITIGATION WITH REGARD TO RECORDING OF SATISFACTION NOTE UNDER SECTION 158BD / 153C OF THE ACT SHOULD BE WITHDRAWN OR NOT PRESSED IF IT DOES NOT MEET THE GUIDELINES LAID D OWN BY THE APEX COURT. 11. THE DELHI BENCH OF TRIBUNAL IN BHAWNA BHALLA & ANR. VS. ACIT & ANR. (SUPRA) HAS REFERRED TO THE CBDT CIRCULAR AND HELD THAT THE RECORDING OF SATISFACTION SHOULD BE STRICTLY COMPLIED WITH WHERE EVEN IF THE ASSESSING OFFICER O F SE ARCHED PERSON AND OTHER PERSON WAS THE SAME. ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 11 12. NOW COMING TO THE FACTS OF THE PRESENT CASE BEFORE US SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT AND SURVEY ACTION UNDER SECTION 133A OF THE ACT WAS CARRIED OUT IN ASWANI GROUP CASES ON 13.08. 2008. ADMITTEDLY NO SEARCH AND SEIZURE OPERATIONS UNDER SECTION 132 OF THE ACT WERE CARRIED OUT AGAINST THE ASSESSEE. DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE FOUND WHICH AS PER SEARCH TEAM RELATED TO THE ASSESSEE BEFORE US AND AN APPRAISAL R EPORT WAS PREPARED BY THE SEARCH PARTY IN THIS REGARD. THE ASSESSING OFFICER IN - CHARGE OF THE SEARCHED PERSON AND THE ASSESSEE WERE THE SAME. NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED ON 26.10.2010 AND THE COPY OF SAME IS AVAILABLE ON RECORD. THE ASSESSING OFFICER RECORDS THAT SEARCH AND SEIZURE WAS CARRIED OUT ON 13.08.2008 IN THE ASWANI GROUP . DURING THE COURSE OF SEARCH DOCUMENTS PERTAINING TO THE ASSESSEE M/S. OM PROPERTIES & DEVELOPERS WERE FOUND AND SEIZED. IN VIEW OF THIS AND THE PROVISIO NS OF SECTION 153C OF THE ACT THE ASSESSEE WAS ASKED TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH OF THE ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH ACTI ON WAS CONDUCTED. THE ASSESSEE IN THIS REGARD WAS ISSUED SHOW CAUSE NOTICE. ADMITTEDLY THE ASSESSEE HAS FILED RETURN OF INCOME IN RESPONSE TO THE SAID NOTICE ISSUED UNDER SECTION 153C OF THE ACT. HOWEVER THE ASSESSEE NOW BEFORE US HAS RAISED THE ISSUE OF NON - RECORDING OF SATISFACTION BY THE ASSESSING OFFICER WHO WAS IN - CHARGE OF THE SEARCHED PERSON BEFORE HANDING OVER THE DOCUMENTS TO THE ASSESSING OFFICER OF THE ASSESSEE BEFORE US. NO DOUBT THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE ASSES SEE TO WHOM THE DOCUMENTS RELATED WHICH WERE FOUND DURING THE COURSE OF SEARCH ON ASWANI GROUP WERE THE SAME BUT THE DICTATE OF THE HONBLE SUPREME COURT IN CIT VS. CALCUTTA ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 12 KNITWEARS (SUPRA) WAS THAT THERE IS REQUIREMENT TO RECORD SATISFACTION BEFORE HA NDING OVER THE DOCUMENTS TO THE ASSESSING OFFICER EVEN IN CASES WHERE THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE OTHER PERSON IS SAME. ADMITTEDLY IN THE PRESENT CASE BEFORE US NO SUCH SATISFACTION WAS RECORDED. THE ASSESSING OFFICER VIDE REP ORT DATED 19.05.2016 HAS INTIMATED THAT THE CASE RECORDS OF M/S. OM PROPERTIES AND DEVELOPERS AND M/S. ASWANI ASSOCIATES FOR ASSESSMENT YEAR 2007 - 08 WERE RECEIVED AND AFTER VERIFICATION OF THE SAID CASE RECORDS IT WAS FOUND THAT THE SATISFACTION NOTE FOR ISSUANCE OF NOTICE UNDER SECTION 153C OF THE ACT FOR ASSESSMENT YEAR 2007 - 08 WAS NOT AVAILABLE IN CASE RECORDS. THE PLEA OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US IS ALSO THE SAME THAT IN THE ABSENCE OF ANY SATISFACTION NOTE BEING R ECORDED BEFORE HANDING OVER THE DOCUMENTS OF ASSESSEE NO PROCEEDINGS UNDER SECTION 153C OF THE ACT COULD BE COMPLETED AGAINST THE ASSESSEE. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN CIT VS. CALCUTTA KNITWEARS (SUPRA) AND THE CIRCULAR ISSUED BY CBDT WE FIND MERIT IN THE PLEA OF ASSESSEE IN THIS REGARD. IN THE ABSENCE OF ANY SATISFACTION RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON BEFORE INITIATING PROC E EDINGS UNDER SECTION 153C OF THE ACT AGAINST THE ASSESSEE I.E. BEFORE HANDING OVER THE DOCUMENTS RELATING TO THE ASSESSEE AND STARTING THE PROCEEDINGS UNDER SECTION 153C OF THE ACT THE ASSESSMENT PROCEEDINGS COMPLETED AGAINST THE ASSESSEE UNDER SECTION 153C OF THE ACT ARE INVALID HENCE THE SAME ARE HELD SO . ACCORDINGLY THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 153C OF THE ACT DOES NOT STAND AND THE SAME IS ANNULLED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED. ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 13 13. THE FACTS AND ISSUE IN ITA NOS.1125/PN/2012 AND 1126/PN/2012 RELATING TO ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 IN THE CASE OF RELATED PARTY M/S. ASWANI ASSOCIATES ARE SIMILAR TO THE FACTS ARISING IN ITA NO.1996/PN/2012. THE ASSESSMENTS IN THE CASE OF M/S. ASWANI ASSOCIATES FOR BOTH THE ASSESSMENT YEARS WERE COMPLETED UNDER SEC TION 143(3) R.W.S. 153C OF THE ACT AND IN BOTH THE CASES ALSO NO SATISFACTION WAS RECORDED AND THE ASSESSING OFFICER HAS VIDE LETTER DATED 19.05.2016 CONFIRMED THAT NO SATISFACTION NOTE IS AVAILABLE IN THE CASE RECORDS. ACCORDINGLY FOLLOWING THE SAME PA RITY OF REASONING AS IN ITA NO.1996/PN/2012 THE GROUNDS OF APPEAL IN ITA NOS.1125/PN/2012 AND 1126/PN/2012 ARE ALLOWED AND THE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER IS ANNULLED. 14. THE REVENUE IS IN APPEAL IN ITA NO.1473/PN/2012 RELATING TO ASSESSMENT YEAR 2008 - 09 AGAINST THE RELIEF GIVEN BY THE CIT(A). SINCE THE ASSESSMENT MADE BY THE ASSESSING OFFICER IS ALREADY ANNULLED HENCE THE APPEAL OF REVENUE IS ALSO DISMISSED AS INFRUCTUOUS. 15. IN RESPECT OF IT A NO. 1123/PN/2012 RELATING TO ASSESSMENT YEAR 2007 - 08 IN THE CASE OF RAJKUMAR ASWANI AND ITA NO.1127/PN/2012 RELATING TO ASSESSMENT YEAR 2008 - 09 IN THE CASE OF SHRICHAND ASWANI THE ASSESSMENT WAS ALSO COMPLETED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN CASE THE ASSESSMENTS MADE IN THE CASE OF M/S. OM PROPERTIES AND DEVELOPERS AND M/S. ASWANI ASSOCIATES ARE ANNULLED THEN THE ADDITION MADE IN THE RESPECTIVE HANDS IS TO BE UPHELD SINCE THE ASSESSEE HAD ASKED FOR TELESCOPING WITH THE ADDITION MADE IN THE HANDS OF PARTNERSHIP FIRM. WHEN NO ADDITION IS MADE IN ITA NO. 1996 /PN/20 1 2 & 5 ORS OM PROPERT IES & DEVELOPERS & ORS 14 THE ABOVE TWO HANDS THEN THE ADDITION MERITS TO BE CONFIRMED IN THE HANDS OF RESPECTIVE ASSESSEE. IN VIEW THEREOF THE ADDI TION MADE IN THE HANDS OF RAJKUMAR ASWANI AND SHRICHAND ASWANI ARE CONFIRMED AND THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISMISSED. 16 . IN THE RESULT APPEALS OF ASSESSEE IN ITA NOS.1996/PN/2012 1125/PN/2012 & 1126/PN/2012 ARE ALLOWED APPEAL OF REVENUE IN ITA NO.1473/PN/2012 AND APPEALS OF ASSESSEE IN ITA NOS.1123/PN/2012 & 1127/PN/2012 ARE DISMISSED. ORDER P RONOUNCED ON THIS THE 28 TH DAY OF SEPTEMBER 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 28 TH SEPTEMBER 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I PUNE ; 4. / THE CIT (CENTRAL) PUNE ; 5. / DR A ITAT PUNE; 6. / GUARD FILE . / BY ORDER // TRUE COPY // / SR. PRIVATE SECRETARY / ITAT PUNE