M/s. The Cooperative Company Ltd., Uttar Pradesh v. DCIT, New Delhi

ITA 4193/DEL/2010 | 2004-2005
Pronouncement Date: 31-03-2021 | Result: Allowed

Appeal Details

RSA Number 419320114 RSA 2010
Assessee PAN AADCC1401F
Bench Delhi
Appeal Number ITA 4193/DEL/2010
Duration Of Justice 10 year(s) 6 month(s) 20 day(s)
Appellant M/s. The Cooperative Company Ltd., Uttar Pradesh
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 31-03-2021
Date Of Final Hearing 06-06-2017
Next Hearing Date 06-06-2017
Assessment Year 2004-2005
Appeal Filed On 10-09-2010
Judgment Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA JUDICIAL MEMBER ITA NOS.4192 4193 4194/DEL/2010 ASSTT. YEARS: 2003-04 2004-05 2005-06 & ITA NO. 1713/DEL/ 2012 ASSTT. YEAR 2006-07 O R D E R PER SUDHANSHU SRIVASTAVA JM: THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) III DELHI {CIT (A)} FOR THE ASSESSMENT YEARS 2003-04 TO 2006-07 THE COOPERATIVE COMPANY LTD. C/O SH.GURBACHAN SINGH CHAWLA ADVOCATE L-2/A RAMPUR GARDENS BAREILY UTTAR PRADESH 243001 PAN AADCC1401F VS. DCIT CENTRAL CIRCLE -19 19 ARA CENTRE JHANDEWALAN EXTENSION NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SAHIL KAPOOR ADVOCATE SHRI SUMIT LAL CHANDANI ADVOCATE MS. ANANYA KAPOOR ADVOCATE DEPARTMENT BY : MS. PRAMITA M BISWAS CIT(DR) DATE OF HEARING 07/01 /20 21 DATE OF PRONOUNCEMENT 31 / 03 /20 21 ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 2 RESPECTIVELY. THE FACTS AND CIRCUMSTANCES AND THE ADDITIONS MADE IN ALL THE ASSESSMENT YEARS ARE SIMILAR. THESE APPEALS WERE TAKEN UP FOR HEARING TOGETHER AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER. 2.0 FOR THE SAKE OF CONVENIENCE AND BREVITY WE TAKE THE FACTS FROM THE PROCEEDINGS OF THE ASSESSMENT YEAR 2003-04. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF COUNTRY LIQUOR. THE SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT 1961 (HEREINAFTER CALLED THE ACT) WAS CONDUCTED ON 14.02.2006 ON THE PREMISES OF M/S. RADICO KHAITAN AND SHRI R.K. MIGLANI SECRETARY GENERAL OF M/S UTTAR PRADESH DISTILLERIES ASSOCIATION (UPDA). DURING THE SEARCH A LARGE NUMBER OF DOCUMENTS ALLEGED TO BE BELONGING TO SEVERAL MEMBERS OF THE DISTILLERIES OF UTTAR PRADESH DISTILLERY ASSOCIATION WERE SEIZED FROM THE RESIDENCE OF SHRI R.K. MIGLANI AND OFFICE OF THE UPDA. STATEMENT OF SHRI R.K. MIGLANI WAS RECORDED U/S 132(4) OF THE ACT. THE ASSESSING OFFICER HAVING JURISDICTION OVER THE CASE OF SHRI R.K. MIGLANI RECORDED THE SATISFACTION AS PROVIDED IN THE PROVISIONS OF SECTION 153C OF THE ACT AND HANDED OVER THE DOCUMENTS SO SEIZED BELONGING TO THE ASSESSEE TO THE ASSESSING ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 3 OFFICER (AO) HAVING JURISDICTION OVER THE CASE OF THE ASSESSEE. BASED ON THE MATERIAL RECOVERED DURING THE COURSE OF SEARCH AND ALSO RELYING ON THE STATEMENT OF SHRI R.K. MIGLANI THE INCOME TAX DEPARTMENT INVOKED THE PROVISIONS OF SECTION 153C OF THE ACT AND ISSUED NOTICE TO THE ASSESSEE. THE ASSESSEE FILED RETURN OF INCOME ON 14.05.2007. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER RAISED VARIOUS QUERIES WHICH WERE COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICER AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE ADDITIONS TO THE INCOME SO FILED. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A) WHO DISMISSED THE APPEAL. THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF THE LD. CIT (A) IS IN APPEAL BEFORE US. 2.1 THE GROUNDS OF APPEAL OF ITA NO. 4192/DEL/2010 FOR THE ASSESSMENT YEAR 2003-04 RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN CONCLUDING THE ASSESSMENT PROCEEDINGS OF THE ASSESSEE U/S 153C R.W.S. 153A OF THE INCOME TAX ACT WHEN THERE IS NO MATERIAL TO SUPPORT THE ALLEGATIONS THAT THE DOCUMENTS RELIED UPON THE ASSESSING OFFICER BELONGED TO THE ASSESSEE. ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 4 2. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE AO IN CONCLUDING THE ASSESSMENT WITHOUT PROVIDING AN OPPORTUNITY TO CROSS EXAMINE SHRI RK MIGLANI AND M/S RADICO KHAITAN. THE ASSESSMENT HAS BEEN FRAMED ON SURMISES AND CONJECTURES TOTALLY ALIEN TO ANY COGENT PROOF IN THE ABSENCE OF PROOF OF GENERATION OF FUNDS AND THEIR ABSENCE EITHER THE IDENTITY OF THE SO CALLED BENEFICIARY OFFICIALS AND POLITICIANS AND WITHOUT STATING ANY REASON AS TO WHY SUCH PAYMENTS WERE BEING MADE. 3. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE AO WHO HAS RELIED ON DUMB DOCUMENTS LOOSE SHEETS DIARIES AND JOTTINGS OF THIRD PARTIES EVEN THOUGH THEY COULD NOT BE RELIED UPON TO MAKE ANY ADDITIONS IN THE CASE OF THE ASSESSEE AND IN STATING THAT THE ASSESSEE WAS A PART OF THE CORE COMMITTEE WHICH IS FACTUALLY INCORRECT. 4. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE AO WHO HAS ALLEGED THAT THE GENERATION OF FUNDS TO MAKE THE ALLEGED ILLEGAL PAYMENTS WAS DONE BY INFLATING THE TRANSPORT CHARGES DEBITING BOGUS BILLS AND RECEIVING MONEY BACK FROM COUNTRY 'LIQUOR OPERATIONS @ RS.3 PER BL. THESE ARE MERE PRESUMPTIONS AND ARE NOT IN ANY MANNER REFLECTED IN THE DOCUMENTS SEIZED OR FROM THE RECORDS OF THE ASSESSEE. ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 5 5. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1 25 31 800.00 MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED EXPENDITURE INCURRED BY THE ASSESSEE FROM UNEXPLAINED SOURCES. 6. THE ASSESSEE RESERVES ITS RIGHT TO ADD AMEND ALTER OR DELETE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2.2 THE GROUNDS OF TWO APPEALS I.E. ITA NO. 4193/DEL/2010 & ITA NO. 4194/DEL/2010 ARE THE IDENTICAL EXCEPT FOR GROUND NO. 5 WHICH ARE AS UNDER:- ITA NO. 4193/DEL/ 2010 - ASSTT. YEAR 2004-05: 5. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1 33 67 800.00 MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED EXPENDITURE INCURRED BY THE ASSESSEE FROM UNEXPLAINED SOURCES. ITA NO. 4194/DEL/2010 - ASSTT. YEAR 2005-06: 5. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN CONFIRMING THE ADDITION OF RS. 7011500.00 MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED EXPENDITURE INCURRED BY THE ASSESSEE FROM UNEXPLAINED SOURCES. 2.3 THE GROUNDS OF APPEAL OF ITA NO. 1713/DEL/2010 FOR THE ASSTT. YEAR 2006 07 ARE AS UNDER:- ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 6 1. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS. 1 97 17 000/- WITH TOTAL DISREGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ASSESEE RESERVES ITS RIGHT TO ADD AMEND ALTER OR DELETE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2.4 THE ADDITIONAL GROUNDS OF APPEAL IN ITA NO. 1713/DEL/2010 FOR THE ASSTT. YEAR 2006-07 ARE AS UNDER:- GROUND 3:THAT THE ASSESSMENT ORDER PASSED U/S 143(3) OF INCOME-TAX ACT 1961 (ACT) AND THE ADDITIONS MADE THEREIN ARE ILLEGAL BAD IN LAW AND WITHOUT JURISDICTION. GROUND 4: 'THAT THE IMPUGNED ASSESSMENT ORDER FRAMED UNDER S. 143(3) OF THE ACT IS ILLEGAL BAD IN LAW AND WITHOUT JURISDICTION OWING TO THE FACT THAT THE SAME WAS REQUIRED TO BE FRAMED U/S 153C OF THE ACT. GROUND 5:'THAT THE ADDITIONS MADE ARE ILLEGAL AND BAD IN LAW AS THE ASSESSEE WAS DENIED THE OPPORTUNITY TO CROSS-EXAMINE SH. R.K. MIGLANI BASED ON WHOSE STATEMENT THE SUBJECT ADDITION HAS BEEN MADE. ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 7 GROUND 6:THAT WITHOUT PREJUDICE THE ADDITIONS HAVE BEEN ON THE BASIS OF DUMB DOCUMENTS AND THE SAME ARE LIABLE TO BE DELETED 3.0 AT THE TIME OF HEARING THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE IS A DELAY OF 44 DAYS IN FILING THE APPEAL FOR AY 2006-07 BEFORE THE TRIBUNAL FOR WHICH NECESSARY APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT HAS BEEN FILED AT THE TIME OF FILING OF THE APPEAL EXPLAINING REASONS FOR DELAY IN FILING APPEAL. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAD RECEIVED IMPUGNED ORDER ON 29.12.2011 AND THE LAST DATE FOR FILING OF THE APPEAL BEFORE THIS TRIBUNAL WAS 27.02.2012. THE LD. AR SUBMITTED THAT THE LD. AUTHORIZED REPRESENTATIVE APPEARING BEFORE THE APPELLATE COMMISSIONER SUFFERED FROM ACUTE HEPATITIS VIRAL FROM 15.02.2012 AND WAS ADVISED COMPLETE BED REST FOR 8 WEEKS. IT WAS FURTHER SUBMITTED THAT THE DELAY WAS NEITHER INTENTIONAL NOR DELIBERATE. THE LD. AR PLACED RELIANCE ON THE CASES OF BHAKTI KALA KSHETRA V. DIT [2017] 163 ITD 440 (MUMBAI-TRIB.); MUKESH JESANGBHAI PATEL V. ITO [TAX APPEAL NOS. 372-374 OF 2011; GUJARAT HIGH COURT]; AND R. VISHWANATH V. ITO [2013] 59 SOT 22 (HYDERABAD-TRIB). HE FURTHER ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 8 SUBMITTED THAT THE SAID DELAY IN FILING THE APPEAL WAS NOT DUE TO ANY DELIBERATE LAPSE OR NEGLIGENCE BUT DUE TO CIRCUMSTANCES BEYOND CONTROL AND HENCE THE DELAY IN FILING APPEAL MAY BE CONDONED IN THE INTEREST OF JUSTICE AND EQUITY. 4.0 ON THE CONTRARY THE LEARNED DR STRONGLY OPPOSED THE PRAYER TO CONDONE DELAY PUT FORTH BY LEARNED AR. SHE SUBMITTED THAT THE PETITION FILED BY THE ASSESSEE AS WELL AS AFFIDAVIT FILED IS NOT SUPPORTED BY ANY OTHER EVIDENCE. 5.0 WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS PRELIMINARY ISSUE AND PERUSED THE RECORD. WE FIND THAT THE ISSUE CONTESTED IN THE APPEAL IS A RECURRING ISSUE AND HENCE NO MALAFIDE CAN BE IMPUTED ON THE ASSESSEE IN NOT FILING THE APPEAL IN TIME. WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE FOR THE ASSESSEE IN FILING THE APPEALS BELATEDLY. ACCORDINGLY WE CONDONE THE DELAY IN FILING THE PRESENT APPEAL AND ADMIT THE SAME. 6.0 SHRI SALIL KAPOOR LEARNED COUNSEL APPEARING ON BEHALF OF ASSESSEE AT THE OUTSET RELIED UPON THE ORDER PASSED CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF MOHAN MEAKIN LTD. VS. ASSTT. COMMISSIONER OF INCOME TAX IN ITA NO. 3787/DEL/2008 ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 9 VIDE ORDER DATED 01.08.2017 AND ALSO THE ON ORDER OF THE CO- ORDINATE BENCH IN THE CASE OF LORDS DISTILLERY LTD. VS. DCIT IN ITA NO. 2576/DEL/2010 VIDE DATED 14.12.2018 TO SUBMIT THAT SIMILAR ADDITIONS WERE MADE BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE AND ALSO OTHER MEMBERS OF UPDA. THE LD. AR RELIED UPON THE ORDER PASSED BY THE COORDINATE BENCH TO CONTEND THE FACT THAT IN THE ABSENCE OF ANY ADVERSE MATERIAL ADDED WITH THE FACT THAT THERE IS NO CHANGE IN MATERIAL FACTS AND CIRCUMSTANCES AND THEREFORE THE IMPUGNED ADDITION WAS LIABLE TO BE DELETED. 6.1 IT WAS ARGUED THAT BASED ON THE ENTRIES IN THE BOOKS FOUND BELONGING TO AND SEIZED AT THE PREMISES OF THE THIRD PARTY AND IN THE ABSENCE OF CROSS EXAMINATION OF SUCH THIRD PARTIES THE ADDITIONS MADE WERE NOT JUSTIFIED. IT WAS SUBMITTED THAT DESPITE THE REQUEST HAVING BEEN MADE BY THE ASSESSEE IT WAS NOT ALLOWED TO CROSS EXAMINE THE WITNESS. THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND SUBMITTED THAT WHEN THE ASSESSEE HAD REQUESTED AN OPPORTUNITY TO CROSS EXAMINE THE WITNESS WHO HAD DEPOSED AGAINST HIM THEN IF SUCH REQUEST IN DENIED AND A REASONABLE OPPORTUNITY IS NOT GRANTED FOR ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 10 CROSS EXAMINATION THE RESULTANT ADDITIONS MADE WERE UNJUSTIFIED. 6.2 THE LD. AR REFERRED TO PAGE NUMBER 20 OF THE ORDER PASSED IN THE CASE OF LORDS DISTILLERY LTD. (SUPRA) AND PIN-POINTED ITEM NUMBER 14 (BEING ASSESSEES NAME) OF THE COMMON SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER. IT WAS HIS CONTENTION THAT WHILE REFERRING TO THE SATISFACTION NOTE THE ASSESSING OFFICER HAS TO RECORD A FIRM FINDING THAT THE BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DO NOT BELONG TO THE PERSON SEARCHED. IT WAS SUBMITTED THAT THE DOCUMENTS RECOVERED FROM SHRI R.K. MIGLANI AND UPDA ARE DUMB DOCUMENTS AND HENCE NO ADDITIONS CAN BE MADE IN THE ASSESSEES CASE. IT WAS ARGUED THAT THE SAID DOCUMENTS CONTAINED ONLY THE NAMES OF THE DISTILLERIES AND THE AMOUNTS MENTIONED AGAINST EACH DISTILLERY AND THAT NO DETAILS OF ACTUAL PAYMENT/S MODE OF PAYMENT/S NATURE OF PAYMENT/S BENEFICIARIES ETC. CAN BE GATHERED FROM SUCH DOCUMENTS. 6.3 IT WAS ALSO SUBMITTED THAT THE ASSESSING OFFICER AND THE LD. CIT (A) WHILE PASSING THE IMPUGNED ORDER HAD RELIED ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 11 UPON ORDERS PASSED IN THE CASES OF THE OTHER GROUP MEMBERS OF UPDA. IT WAS SUBMITTED THAT SINCE THE ORDER PASSED BY THE AO AND THE LD. CIT (A) IN THE CASES OF THE OTHER MEMBER OF UPDA STAND REVERSED BY THE DETAILED ORDERS OF THIS TRIBUNAL IN THE CASES OF LORD DISTILLERY LTD. (SUPRA) AND MOHAN MEAKIN LTD (SUPRA) SIMILAR VIEW MAY BE TAKEN IN THE CASE OF THE PRESENT ASSESSEE. 7.0 THE LD. DEPARTMENT REPRESENTATIVE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. THE LD. DEPARTMENT REPRESENTATIVE ARGUED THAT THE LD. CIT NEW DELHI VIDE ORDER DATED 16.11.2009 PASSED ORDER U/S 12AA OF ACT HAD CANCELLED THE REGISTRATION GRANTED TO THE UPDA AND THAT THE CANCELLATION OF THE REGISTRATION U/S 12AA WAS UPHELD BY ITAT VIDE ORDER IN ITA NO. 118/DEL/2010 DATED 14.02.2017. IT WAS FURTHER SUBMITTED THAT THE APPEAL OF M/S UPDA AGAINST THE ABOVE ITAT ORDER WAS DISMISSED BY THE HON'BLE HIGH COURT VIDE ORDER DATED 23.10.2017 AND FURTHER THE SLP AGAINST THE SAME WAS DISMISSED BY THE HONBLE APEX COURT ON 13.04.2018. THE LD. DEPARTMENTAL REPRESENTATIVE PLACED STRONG RELIANCE UPON THE STATEMENT ON OATH OF SHRI R.K. MIGLANI RECORDED U/S 132(4) OF THE ACT ON THE DATE OF SEARCH. IT WAS REITERATED THAT THE ITAT HAS UPHELD THE ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 12 CANCELLATION OF REGISTRATION U/S 12AA AND HAS ALSO ENDORSED THE FOLLOWING OF FINDINGS OF THE ASSESSING OFFICER WHEREIN THE TRIBUNAL HAS UPHELD THE VALIDITY OF STATEMENT ON OATH OF SHRI RK MIGLANI RECORDED U/S 132(4) ON 14.02.2006 DESPITE HIS RETRACTION VIDE LETTER DATED 03.03.2008 AND DESPITE NO CROSS EXAMINATION OF SHRI RK MIGLANI BY THE ASSESSEE. 8.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. WE HAVE GONE THROUGH THE ORDER PASSED BY THE COORDINATE BENCH IN THE CASE OF MOHAN MEAKIN LTD. IN ITA NO. 3787/DEL/2008 VIDE ORDER DATED 01.08.2017 AND ALSO THE ORDER OF THE CO-ORDINATE BENCH IN THE CASE OF LORDS DISTILLERY LTD. IN ITA NO. 2576/DEL/2010. THE RELEVANT EXTRACT FROM THE ORDER PASSED IN THE CASE OF LORD DISTILLERY LTD. (SUPRA) IS REPRODUCED HERE IN UNDER FOR A READY REFERENCE:- 45. WE DO NOT FIND ANY FORCE IN THE CONTENTIONS OF THE LD. DR. FIRSTLY THE CANCELLATION OF REGISTRATION U/S 12AA OF THE ACT IN THE CASE OF UPDA IS ALTOGETHER A DIFFERENT ISSUE. THE ASSESSING OFFICER CANCELLED THE REGISTRATION ON THE STRENGTH OF THE STATEMENT OF SHRI ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 13 R.K. MIGLANI AND SEARCH WHICH TOOK PLACE AT HIS RESIDENCE. THE TRIBUNAL UPHELD THE ORDER OF THE ASSESSING OFFICER WHICH WAS AFFIRMED BY THE HON'BLE HIGH COURT OF DELHI. BUT THIS WAS IN THE CONTEXT OF PROVISIONS OF SECTION 12AA OF THE ACT AND THEREFORE CANNOT BE STRETCHED TO THE PROCEEDINGS U/S 153C OF THE ACT IN RESPECT OF 11 DISTILLERIES. A JUDGMENT HAS TO BE CONSIDERED IN THE CONTEXT IN WHICH IT WAS DELIVERED. 46. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS HEAVILY RELIED UPON THE ENTRIES FOUND IN THE IMPOUNDED DOCUMENTS. BUT THERE IS NOT EVEN A SINGLE FINDING BY THE ASSESSING OFFICER WHICH COULD SUGGEST THAT THE CORRESPONDING ENTRIES WERE FOUND IN THE REGULAR BOOKS OF ACCOUNT OF ANY OF THE DISTILLERY. THIS SHOWS THAT NO INDEPENDENT VERIFICATION/EXAMINATION WAS DONE BY THE ASSESSING OFFICER WHO SIMPLY RELIED UPON THE SEIZED MATERIAL SUPPLIED TO HIM BY THE INVESTIGATION WING. 47. THE REVENUE HAS STRONGLY CONTENDED THAT THE SEIZED DOCUMENTS ARE SUCH DOCUMENTS WHICH BELONG TO THE CAPTIONED ASSESSEES. IN OUR UNDERSTANDING OF THE FACTS AND ON PERUSAL OF THE SEIZED DOCUMENTS THIS ASSERTION OF THE REVENUE IS COMPLETELY AND WHOLLY MISPLACED IN LAW. THE CONCEPT OF THE TERM BELONG TO HAS JUDICIALLY BEEN EXAMINED AS ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 14 DISCUSSED ELSEWHERE WHERE IT HAS BEEN HELD THAT BEFORE A DOCUMENT CAN BE HELD TO BE BELONGING TO OTHER PERSONS IT MUST BE ESTABLISHED THAT HE HAS THE RIGHT OF OWNERSHIP ON SUCH DOCUMENT. COURTS HAVE HELD THAT THERE IS A DISTINCTION BETWEEN THE EXPRESSION BELONG TO OF A DOCUMENT AND PERTAINING TO OR RELATING TO A DOCUMENT. IN OUR UNDERSTANDING THE TERM BELONGS TO IS NOT SYNONYMOUS TO THE EXPRESSION PERTAINING TO OR RELATING TO. 48. THIS HAS PROMPTED THE LEGISLATURE TO BRING AMENDMENT TO SECTION 153C OF THE ACT VIDE FINANCE BILL 2015 WHEREIN IN CLAUSE (B) TO SECTION 153C BELONG TO HAS BEEN REPLACED BY RELATES TO. BUT THE LEGISLATURE IN ITS WISDOM HAS GIVEN EFFECT TO THIS AMENDMENT W.E.F 01.06.2015. THEREFORE THE SAME CANNOT BE APPLIED TO THE ASSESSMENT YEARS UNDER CONSIDERATION. 49. MOREOVER THE HON'BLE SUPREME COURT IN THE CASE OF CHUHARMAL VS. CIT 172 ITR 250 HAS HELD THAT POSSESSION IS PROOF OF OWNERSHIP AND THE SEIZED DOCUMENTS WERE FOUND FROM THE POSSESSION OF SHRI R.K. MIGLANI. 50. AS MENTIONED ELSEWHERE NONE OF THE DOCUMENTS REFERRED TO BY THE ASSESSING OFFICER BELONG TO THE CAPTIONED ASSESSEES NOR IT HAS BEEN IDENTIFIED THAT WHICH DOCUMENTS BELONG TO WHICH CAPTIONED ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 15 ASSESSEES. IN OUR CONSIDERED OPINION THE ASSESSING OFFICER HAS EXCEEDED IN HIS JURISDICTION TO INITIATE THE PROCEEDINGS U/S 153C OF THE ACT. 51. THE LD. DR HAS HEAVILY RELIED UPON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SUPER MALLS PVT LTD 393 ITR 557. IN OUR CONSIDERED VIEW THIS JUDGMENT HAS NO APPLICATION AT ALL ON THE FACTS OF THE CASES IN HAND. IN THIS JUDGMENT THE HON'BLE HIGH COURT HAS ONLY EXAMINED WHETHER A SATISFACTION NOTE PREPARED IN THE CASE OF THE PERSON OTHER THAN THE PERSON SEARCHED BY THE SAME ASSESSING OFFICER IN THE FILE OF THE PERSON SEARCHED COULD BE HELD AS VALID. IF THE JUDGMENT IS READ AS A WHOLE THE HON'BLE HIGH COURT HAS NOT HELD THAT THE TERM BELONG TO IS INTER- CHANGEABLE WITH RELATING TO OR PERTAINING TO. 52. AS MENTIONED ELSEWHERE THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO ESTABLISH THAT THE PRODUCTION FIGURES REFLECTED IN THE TABLES WERE FORWARDED BY THE APPELLANTS THROUGH A FAX MESSAGE OR ON ITS LETTER HEAD. THIS WAS CLEAR MANDATE OF THE HON'BLE HIGH COURT WHEN IT REMITTED THE MATTER TO THE FILE OF THE TRIBUNAL. 53. THE LD. DR EMPHASIZED THAT THE DOCUMENT 114 OF ANNEXURE A-1 BEARS THE SIGNATURE OF TWO EMPLOYEES BUT WE HAVE TO SAY THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THESE EMPLOYEES WERE ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 16 NEVER QUESTIONED BY THE ASSESSING OFFICER TO VERIFY WHETHER THEY ACTUALLY PUT THE SIGNATURES ON THOSE DOCUMENTS. IN OUR CONSIDERED OPINION SUCH DOCUMENTS ARE ONLY HEARSAY EVIDENCE. 54. ANOTHER THEORY PROPOUNDED BY THE REVENUE IS THAT EVERY DISTILLERY HAD TO CONTRIBUTE RS. 20/- PER CASE AND HAD THUS CONTRIBUTED SUCH A SUM IS ENTIRELY UNSUPPORTED BY ANY MATERIAL. IT IS NOT KNOWN WHO HAD COLLECTED THE ALLEGED SUM TO HAVE BEEN CONTRIBUTED AND WHAT IS THE DESTINATION OF SUCH SUM. IN NONE OF THE DOCUMENTS NAME OF THE PAYEE ANY PUBLIC SERVANT OR POLITICIAN APPEARS. THIS ITSELF ESTABLISHES THAT THE DOCUMENTS ARE DUMB. 55. BEFORE US THE LD. DR HAS SUPPLIED THE COPIES OF THE DOCUMENTS WHICH FORM ANNEXURE OF THE SEIZED DOCUMENTS BUT HAS FAILED TO DEMONSTRATE THE BASIS ON WHICH SUCH DOCUMENTS BELONGED TO THE DISTILLERIES OR ANY OF THE DISTILLERIES. THE EMPHASIS WAS ON THE NAMES APPEARING IN SUCH LOOSE SHEETS WITHOUT THERE BEING ANY CORROBORATIVE MATERIAL. THEREFORE THESE DOCUMENTS DO NOT STAND THE TEST OF JUDICIAL SCRUTINY TO CONCLUDE THAT SUCH DOCUMENTS BELONG TO DISTILLERIES OR ANY OF THE DISTILLERIES. 56. IRONICALLY NONE OF THE PERSONS WHOSE NAMES HAVE BEEN REFERRED TO IN THE VARIOUS IMPOUNDED SHEETS AS MEMBERS OF THE CORE COMMITTEE OR ANY ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 17 OTHER PERSON HAVE BEEN EXAMINED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THERE IS NO INDEPENDENT EVIDENCE THAT THE CAPTIONED ASSESSEES HAVE CONTRIBUTED ANY SUM EXCEPT NOTINGS IN THE SEIZED DOCUMENTS WHICH HAVE BEEN CONCLUSIVELY HELD HEREINABOVE DO NOT BELONG TO THE CAPTIONED ASSESSEES. .................. 64. THE CONTENTION OF THE LD. DR THAT SINCE SHRI R.K. MIGLANI WAS RELATED TO THE MEMBER DISTILLERIES OF UPDA THEREFORE IT WAS NOT NECESSARY TO ALLOW CROSS EXAMINATION IS NOT ACCEPTABLE. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF SHRI S.N. AGGARWAL 293 ITR 43 HAS HELD AS UNDER: 11. IN THE PRESENT CASE THE ASSESSING OFFICER HAS PLACED RELIANCE ON THE STATEMENT OF SMT. SARLA AGGARWAL DAUGHTER OF THE ASSESSED WHILE ARRIVING AT THE CONCLUSION THAT THE ENTRIES BELONG TO THE TRANSACTIONS OF THE ASSESSED. THIS STATEMENT MADE BY SMT. SARLA GUPTA CANNOT BE SAID TO BE RELEVANT OR ADMISSIBLE EVIDENCE AGAINST THE ASSESSED SINCE THE ASSESSED WAS NOT GIVEN ANY OPPORTUNITY TO CROSS-EXAMINE HER AND EVEN FROM THE STATEMENT NO CONCLUSION CAN BE DRAWN THAT THE ENTRIES MADE ON THE RELEVANT PAGE BELONGS TO THE ASSESSED AND REPRESENTS HIS UNDISCLOSED INCOME. IT IS ALSO AN ADMITTED FACT THAT THE STATEMENT OF THE ASSESSED WAS NOT RECORDED AT ANY STAGE DURING THE ASSESSMENT PROCEEDINGS. THE ONLY CONCLUSION WHICH CAN BE ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 18 DRAWN ABOUT THE NATURE AND CONTENTS OF THE DOCUMENT IS THAT IT IS A DUMB DOCUMENT AND ON THE BASIS OF THE ENTRY OF NOTHINGS OR FIGURE ETC. IN THIS DOCUMENT IT CANNOT BE CONCLUDED THAT THIS REPRESENTS THE UNDISCLOSED INCOME OF THE ASSESSEE. 65. THE HON'BLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER VS. CIT IN CIVIL APPEAL NO. 4228 OF 2006 HAS HELD AS UNDER: ACCORDING TO US NOT ALLOWING THE ASSESSEE TO CROSS-EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY IN AS MUCH AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. 66. THE LD. DR HAS STRONGLY EMPHASIZED ON THE EVIDENTIARY VALUE OF THE STATEMENT RECORDED U/S 132(4) OF THE ACT AND HAS RELIED UPON SEVERAL JUDICIAL DECISIONS TO SUPPORT HIS CONTENTIONS. THE LD. DR FURTHER RELIED UPON THE PROVISIONS OF SECTION 132(4A) OF THE ACT AND 292C OF THE ACT. THESE SECTIONS READ AS UNDER: SECTION 132(4) IN THE INCOME- TAX ACT (4) THE AUTHORISED OFFICER MAY DURING THE COURSE OF THE SEARCH OR SEIZURE EXAMINE ON OATH ANY PERSON WHO IS FOND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT DOCUMENTS MONEY ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 19 BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION MAY THEREAFTER BE USED IN EVIDENCE IN ANY PROCEEDING UNDER THE INDIAN INCOME- TAX ACT 1922 (11 OF 1922 ) OR UNDER THIS ACT. 1 EXPLANATION.- FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT THE EXAMINATION OF ANY PERSON UNDER THIS SUB- SECTION MAY BE NOT MERELY IN RESPECT OF ANY BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSETS FOUND AS A RESULT OF THE SEARCH BUT ALSO IN RESPECT OF ALL MATTERS RELEVANT FOR THE PURPOSES OF ANY INVESTIGATION CONNECTED WITH ANY PROCEEDING UNDER THE INDIAN INCOME- TAX ACT 1922 (11 OF 1922 ) OR UNDER THIS ACT.] SECTION 132(4A) IN THE INCOME- TAX ACT 1995 (4A) 2 WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH IT MAY BE PRESUMED- (I) THAT SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY OR TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON ARE IN THAT PERSON' S ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 20 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.] SECTION 292C [L)] WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OL OF ANY PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132 20[OR SURVEY SECTION 133A] IT MAY IN ANY PROCEEDING UNDER THIS ACT BE PRESUMED 1 I) THAT SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE; AND III) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY OR TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON ARE IN THAT PERSONS 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. WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSETS HAVE BEEN D TO THE REQUISITIONING OFFICER IN ACCORDANCE WITH THE PROVISIONS OF 132A THEN THE PROVISIONS OF SUB- ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 21 SECTION (1) SHALL APPLY AS IF SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSETS WHICH HAD BEEN TAKEN INTO CUSTODY FROM ON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) AS THE CASE MAY BE OF SUB-SECTION (1) OF SECTION 132A HAD BEEN FOUND IN THE POSSESSION OR CONTROL OF THAT PERSON IN THE COURSE OF A SEARCH U/S 132. 67. A PLAIN READING OF THE AFOREMENTIONED SECTIONS WOULD SHOW THAT THE PRESUMPTION IS AVAILABLE IN THE CASE OF A PERSON WHO WAS FOUND IN THE POSSESSION OR CONTROL I.E. THE SEARCHED PERSON. THEREFORE THE PRESUMPTION MAY BE GOOD AGAINST SHRI R.K. MIGLANI OR UPDA. BUT NOT IN THE CASES OF THE OTHER PERSON WHICH ARE THE DISTILLERIES IN THE PRESENT APPEALS. THEREFORE THE JUDICIAL DECISIONS RELIED UPON BY THE LD. DR ARE MISPLACED AND THEREFORE NEEDS NO SPECIFIC MENTION. 68. AT THIS STAGE IT WOULD NOT BE OUT OF PLACE TO POINT OUT THAT THE PREMISES OF SHRI R.K. MIGLANI WERE SEARCHED WHICH MEANS THAT SHRI R.K. MIGLANI WAS THE SEARCHED PERSON AND ALL THE PRESUMPTIONS WERE AVAILABLE AGAINST HIM IN RESPECT OF THE SEIZED DOCUMENTS/NOTINGS IN THE SEIZED DOCUMENTS AND OTHER THINGS. 69. SURPRISINGLY THE ASSESSMENTS OF SHRI R.K. MIGLANI HAVE BEEN MADE ON THE RETURNED INCOME WHICH WILL BE CLEAR FROM THE FOLLOWING TABLE ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 22 ASSESSMENT YEAR RETURNED INCOME ASSESSED INCOME U/S 2000-01 177080 177080 153A 2001-02 194615 194615 -DO- 2002-03 191652 191652 -DO- 2003-04 343219 343219 -DO- 2004-05 225541 225541 -DO- 2005-06 231867 231867 -DO- 70. IT CAN BE SEEN FROM THE ABOVE CHART THAT THE CASE IN WHICH THE PRESUMPTION WAS AVAILABLE THE REVENUE ACCEPTED WHAT WAS RETURNED BY SHRI R.K. MIGLANI AND ON THE STRENGTH OF HIS STATEMENT THAT THE DOCUMENTS SEIZED FROM HIS PREMISES BELONG TO DISTILLERIES THE ADDITIONS HAVE BEEN MADE AS UNEXPLAINED EXPENDITURE/CONTRIBUTION TO UPDA. 71. IT IS WELL SETTLED THAT ONLY THE PERSON COMPETENT TO GIVE EVIDENCE ON THE TRUTHFULNESS OF THE CONTENTS OF THE DOCUMENT IS WRITER THEREOF. SO UNLESS AND UNTIL THE CONTENTS OF THE DOCUMENTS ARE PROVED AGAINST A PERSON THE POSSESSION OF THE DOCUMENT OR HAND WRITING OF THAT PERSON ON SUCH DOCUMENT BY ITSELF CANNOT PROVE THE CONTENTS OF THE DOCUMENT. 72. CONSIDERING THE FACTS OF THE DISPUTE IN TOTALITY WE ARE OF THE OPINION THAT THE ASSESSMENT FRAMED U/S 153C OF THE ACT IS IN GROSS ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 23 VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND DESERVE TO BE TAGGED AS NULLITY. 8.1 WE HAVE GONE THROUGH THE ORDER PASSED BY THE COORDINATE BENCH IN DETAIL. WE FIND THAT THE ASSESSEE HEREIN HAD RAISED A SPECIFIC REQUEST BEFORE THE ASSESSING OFFICER REQUESTING CROSS-EXAMINATION OF SHRI RK MIGLANI (PG. 5 OF THE ASSESSMENT ORDER). HOWEVER DESPITE THAT THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY TO CROSS EXAMINE SHRI R.K. MIGLANI AND FURTHER THE ADDITIONS HAVE BEEN MADE IN THE ASSESSMENT ORDER SOLELY ON THE BASIS OF THE STATEMENT OF SHRI R.K. MIGLANI WITHOUT CONDUCTING ANY INDEPENDENT ENQUIRY. THIS TRIBUNAL IN THE CASE OF LORD DISTILLERY LTD. (SUPRA) VIDE ORDER DATED 14.12.2018 PASSED IN THE CASES OF OTHER MEMBERS OF THE UPDA HAS HELD THAT THE NON-GRANTING OF OPPORTUNITY TO CROSS-EXAMINE SHRI MIGLANI IS ILLEGAL AND FATAL TO THE ASSESSMENT ORDER. RESPECTFULLY FOLLOWING THE ORDER PASSED BY THE COORDINATE BENCH WE HOLD THAT IN SUCH CIRCUMSTANCE THE STATEMENT OF SHRI R.K. MIGLANI CANNOT BIND THE ASSESSEE. IN ABSENCE OF ANY OTHER NEW MATERIAL AND IN THE ABSENCE OF ANY MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE RESPECTFULLY FOLLOWING THE DECISION/S ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 24 OF THE CO-ORDINATE BENCHES ON THE IDENTICAL ISSUE AND FOLLOWING THE RULES OF CONSISTENCY THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT (A) IS HEREBY DELETED. 9.0 APART FROM ADDRESSING THE COMMON GRIEVANCE RAISED BY THE ASSESSEE IN ALL THE YEARS BEFORE US THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS 3 AND 4 (ALREADY REPRODUCED ABOVE) IN ITA NO. 1713/DEL/2012 FOR AY 2006-07. IT WAS SUBMITTED BY THE LD. AR THAT THE ADDITIONAL GROUNDS RAISED ARE PURELY LEGAL GROUNDS WHICH GO TO THE ROOT OF THE MATTER AND NO NEW FACTS ARE REQUIRED TO BE INVESTIGATED OR PLACED ON RECORD FOR ADJUDICATING THE SAME. IN THIS REGARD THE LD. AR PLACED RELIANCE ON THE CASE OF NATIONAL THERMAL POWER COMPANY LTD 229 ITR 383 (SC) AND (II) THE HON'BLE DELHI HIGH COURT IN GEDORE TOOLS PVT. LTD REPORTED IN 238 ITR 268 (DEL); LORDS DISTILLERY LTD. (SUPRA) AND ALSO MOHAN MEAKIN LTD ( SUPRA ) PARA 74. 10.0 THE LD. DEPARTMENT REPRESENTATIVE OBJECTED TO THE ADMISSION OF ADDITIONAL GROUND. 11.0 HAVING HEARD BOTH THE PARTIES WE ARE OF THE CONSIDERED OPINION THAT THE ADDITIONAL GROUNDS RAISED BY THE ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 25 ASSESSEE RELATE TO A LEGAL ISSUE WHICH GOES TO THE ROOT OF THE MATTER AND THEREFORE WE ADMIT THE SAME. 12.0 THE LD. AR SUBMITTED THAT THE IMPUGNED ASSESSMENT ORDER FRAMED UNDER S. 143(3) OF THE ACT IS ILLEGAL BAD IN LAW AND WITHOUT JURISDICTION OWING TO THE FACT THAT THE SAME WAS REQUIRED TO BE PASSED U/S 153C OF THE ACT. IT WAS SUBMITTED THAT THE SEARCH TOOK PLACE ON UPDA AND RADICO KHAITAN ON 14.02.2006 AND THE ALLEGED INCRIMINATING MATERIAL / DOCUMENTS PERTAINING TO FINANCIAL YEAR 2005-06 WERE ALSO RECOVERED. IN THIS BACKGROUND A NUMBER OF NOTICES U/S 153C OF THE ACT WERE ISSUED TO VARIOUS ASSESSEES / MEMBERS OF THE UPDA FOR AY 2006-07. ASSESSMENTS WERE ALSO FRAMED U/S 143(3) FOR AY 2006- 07 IN CASES OF CERTAIN ASSESSEES. IT WAS SUBMITTED THAT THIS TRIBUNAL VIDE ORDER DATED 14.12.2018 HAS HELD THAT THE ASSESSMENT FOR AY 2006-07 COULD BE FRAMED ONLY UNDER SECTION 153C OF THE ACT. 13.0 PER CONTRA THE LD. DR SUBMITTED THAT THERE WAS NO ILLEGALITY IN THE IMPUGNED ASSESSMENT ORDER. ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 26 14.0 WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PERUSED THE ORDERS PLACED ON RECORD ON THIS ISSUE. RELEVANT EXTRACT FROM THE ORDER OF THE COORDINATE BENCH IN THE CASE OF LORDS DISTILLERY LTD. (SUPRA) IS REPRODUCED HERE IN UNDER: 122. FACTS OF THE CASE REVEAL THAT A SATISFACTION NOTE RECEIVED BY THE ASSESSING OFFICER IS DATED 10.04.2007 WHICH DATE HAS TO BE TAKEN AS THE DATE OF SEARCH IN THE CASE OF THE OTHER PERSON. IN THE LIGHT OF THE PROVISIONS OF SECTION 153C OF THE ACT DISCUSSED ELSEWHERE. SIX A.YS CONSTITUTE BLOCK PRECEDING YEAR OF SEARCH THEREFORE IN THE CASE IN HAND THE SIX A.YS WILL BE AS FOLLOWS: 2007-08 2006-07 2005-06 2004-05 2003-04 AND 2002-03 WHICH MEANS THAT THE IMPUGNED A.Y 2006-07 IS PART OF THE BLOCK PERIOD WHICH MEANS THAT THE ASSESSMENT OUGHT TO HAVE BEEN FRAMED U/S 153C R.W.S 153A OF THE ACT WHICH IS THE MANDATE OF RELEVANT PROVISIONS RELATING TO ASSESSMENT IN THE CASE OF SEARCH AND SEIZURE OPERATION. THE PRESENT ASSESSMENT ORDER IS FRAMED U/S 143(3) OF THE ACT AND IS THEREFORE BAD IN LAW. ACCORDINGLY WE DO NOT HAVE ANY ESITATION IN ANNULLING THE ASSESSMENT ORDER. SINCE THE ASSESSMENT ORDER HAS BEEN ANNULLED ALL THE SUBSEQUENT HAPPENINGS GET VITIATED. 14.1 RESPECTFULLY FOLLOWING THE SAME WE ALSO ANNUL THE IMPUGNED ASSESSMENT FOR AY 2006-07. ITA NOS.4192 4193 4194/DEL/2010 & ITA NO. 1713/DEL/ 2012 THE COOPERATIVE COMPANY LTD. & DCIT 27 15.0 IN THE FINAL RESULT ALL THE FOUR APPEALS ARE ALLOWED. ORDER PRONOUNCED ON 31 ST MARCH 2021. SD/- SD/- (N.K. BILLAIYA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/ 03 /2021 *DRAGON* COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI