Ms. Nutan Khurana, Prop. Ishika Creations, New Delhi v. ACIT, New Delhi

ITA 4302/DEL/2014 | 2008-2009
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 430220114 RSA 2014
Assessee PAN AJFPK7466E
Bench Delhi
Appeal Number ITA 4302/DEL/2014
Duration Of Justice 11 month(s) 25 day(s)
Appellant Ms. Nutan Khurana, Prop. Ishika Creations, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 31-07-2015
Date Of Final Hearing 10-07-2015
Next Hearing Date 10-07-2015
Assessment Year 2008-2009
Appeal Filed On 06-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.S. SYAL ACCOUNTANT MEMBER AND SHRI A.T. VARKEY JUDICIAL MEMBER ITA NOS.4297 TO 4302/DEL./2014 (ASSESSMENT YEARS : 2003-04 TO 2008-09) MS. NUTAN KHURANA VS. ACIT CENTRAL CIRCLE 21 (PROP. ISHIKA CREATIONS) NEW DELHI. C/O ANIL JAIN D.D. & CO. CAS 611 SURYA KIRAN BUILDING KASTURBA GANDHI MARG NEW DELHI 110 001. (PAN : AJFPK7466E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL ADVOCATE REVENUE BY : SHRI A.K. SAROHA CIT DR DATE OF HEARING : 10.07.2015 DATE OF PRONOUNCEMENT : .07.2015 O R D E R PER A.T. VARKEY JUDICIAL MEMBER : THESE SIX APPEALS AT THE INSTANCE OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TA X (APPEALS)-II NEW DELHI FOR THE ASSESSMENT YEARS 2003-04 TO 2008-09. 2. THE FACTS AND CIRCUMSTANCE IN ALL THE ASSESSMENT YEARS ARE SIMILAR EXCEPT THE DIFFERENCE IN THE ADDITIONS THEREFORE FOR THE SAKE OF BREVITY WE TAKE THE FACTS FROM THE PROCEEDINGS OF THE ASSESSME NT YEAR 2003-04. BRIEF ITA NOS.4297 TO 4302/DEL./2014 2 FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE ACTIO N U/S 132 OF THE INCOME- TAX ACT 1961 (HEREINAFTER THE ACT) WAS CARRIED O UT IN THE CASES OF SHRI B.K. DHINGRA SMT. POONAM DHINGRA M/S. MAYANK TRAD ERS (P) LTD. AND M/S HORIZON 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 WHO IS AN INDI VIDUAL AND PROPRIETOR OF A CONCERN WERE SEIZED. ON THE BASIS OF DOCUMENT S SO FOUND BELONGING TO THE ASSESSEE PROCEEDINGS WERE INITIATED IN THE CASE OF THE ASSESSEE U/S 153C READ WITH SECTION 153A OF THE ACT. THE CASE O F THE ASSESSEE WAS INITIALLY CENTRALIZED WITH ACIT CENTRAL CIRCLE 17 U/S 127 OF THE ACT BY CIT DELHI-IX NEW DELHI VIDE ORDER F.NO.CIT-IX/ITO (HQRS.)/127/2009- 10/2591 DATED 28.10.2009. NOTICE U/S 153C DATED 01 .10.2010 WAS ISSUED TO THE ASSESSEE BY THE ACIT CC 17 NEW DELHI REQUI RING THE ASSESSEE TO FILE RETURN OF INCOME WITHIN 15 DAYS OF SERVICE OF THE NOTICE. MEAN WHILE THE CASE WAS TRANSFERRED TO CENTRAL CIRCLE 21 BY AN ORDER U/S 127 OF THE ACT ISSUED VIDE F.NO.CIT (C)-II/CENT/2010-11/1029 DATED 19/10/2010. IN RESPONSE TO THE NOTICE U/S 153C THE ASSESSEE FILED A RETURN FOR ASSESSMENT YEAR 2003-04 ON 11.11.2010 DECLARING INCOME OF RS.8 2 100/-. A COPY OF THE PANCHNAMA REASONS FOR ISSUING NOTICE U/S 153C AND JURISDICTION ORDER DATED 19.10.2010 U/S 127 OF THE ACT WERE DISPATCHED TO THE ASSESSEE ON 16.11.2010 AS SOUGHT BY THE ASSESSEE. IN RESPONSE TO THE NOTICE THE ASSESSEE TOOK PART IN THE PROCEEDINGS. THE AO NOTE D THAT ASSESSEE HAS NOT ITA NOS.4297 TO 4302/DEL./2014 3 PRODUCED ANY BOOKS OF ACCOUNTS AND PURCHASE/SALE VO UCHERS FOR THE RELEVANT YEAR UNDER CONSIDERATION AND SINCE THE ASS ESSEE HAS NOT PRODUCED THE STOCK REGISTER FOR VERIFYING THE CLOSING STOCK AND SINCE THE BOOKS OF ACCOUNTS WERE ALSO NOT SEIZED HE REJECTED THE RETU RNED FIGURE OF THE INCOME-TAX RETURN AND INTER ALIA HE REJECTED THE B OOKS OF ACCOUNTS OF THE ASSESSEE ON THE GROUND THAT CORRECT INCOME OF THE A SSESSEE CANNOT BE DEDUCED IN THE ABSENCE OF BOOKS OF ACCOUNTS PURCHA SE & SALES VOUCHERS. AFTER GOING THROUGH THE TRADING AND PROFIT & LOSS A CCOUNT FILED BY THE ASSESSEE IT WAS NOTICED BY THE AO THAT ASSESSEE HA D DECLARED INCOME FROM BUSINESS OF WHOLESALE TRADING OF FABRICS AND TEXTIL E GOODS AND GENERAL GOODS UNDER THE NAME & STYLE OF M/S. ISHIKA CREATIO NS. THE AO OBSERVED THAT THE ASSESSEE DERIVED INCOME FROM RETAIL BUSINE SS OF TRADING OF FABRICS CLOTHES TEXTILES AND GENERAL GOODS. THE AO FOUND THAT ASSESSEE HAD SHOWN GROSS PROFIT OF RS.2 20 657/- ON SALES OF RS. 33 33 007/- GIVING A GROSS PROFIT (GP) RATE OF 8.62%. THE AO NOTED THAT IN THE ABSENCE OF BOOKS OF ACCOUNTS ALONG WITH BILLS/VOUCHERS AND BAN K ACCOUNT THE TRADING VERSION OF THE ASSESSEE COULD NOT BE VERIFIED. THE AO NOTED THAT THE ASSESSEE HAD DECLARED ITSELF TO BE ENGAGED IN THE B USINESS OF TRADING OF CLOTHES SHAWLS AND TEXTILES AND HAD SHOWN PURCHASE S OF RS.52 07 330/- AND HAD DECLARED SALES AMOUNTING TO RS.33 33 007/-. THE AO OBSERVED THAT THE GOODS DEALT IN BY THE ASSESSEE WERE SUCH T HAT COULD NOT BE STORED FOR LONG DUE TO CHANGE OF FASHION AND PREFERENCES A ND HE TOOK NOTE THAT THE ITA NOS.4297 TO 4302/DEL./2014 4 POST SEARCH ENQUIRIES CONDUCTED BY THE INVESTIGATIO N WING HAD INDICATED THAT SIX CONCERNS CONNECTED WITH THE THAPAR GROUP W ERE DECLARED AS OPERATING FROM THE ADDRESS OF THE ASSESSEE. THE AO ASSUMED THAT THERE MAY BE MUCH MORE NUMBER OF CONCERNS OPERATING FROM THE SAID ADDRESS. AFTER RECORDING THE STATEMENT OF SHRI RAJIV KHURANA DIRECTOR OF M/S. INDU SURVEYORS & LOSS ASSESSOR THE AO CAME TO THE CONCL USION THAT SHRI B.K. DHINGRA WAS RUNNING THESE COMPANIES AND USING THESE SHELL COMPANIES TO PROVIDE ACCOMMODATION ENTRIES TO THAPAR GROUP AND O THER GROUPS AS WELL. THEREAFTER TAKING NOTE OF THE OFFICE AND LOGISTICA L SUPPORT AT ONE PREMISES WITH LARGE NUMBER OF BUSINESS INVOLVED IN THE SAME BUSINESS ACTIVITY AND SINCE ALL THE CONCERNS WERE DOING IDENTICAL BUSINES S AND WERE CONTROLLED BY THE SAME GROUP I.E. THAPAR GROUP THE AO CAME TO TH E CONCLUSION THAT THE SAME MODUS OPERANDI HAD BEEN USED BY THE GROUP BY R UNNING IDENTICAL SET UP AT OTHER LOCATIONS ALSO. THUS THE AO WAS OF TH E OPINION THAT SINCE THE ACTIVITIES ARE INDICATIVE OF BOGUS COMPANIES/PROPRI ETARY CONCERNS/HUFS RUN FOR THE PURPOSES OF GENERATING CAPITAL ONLY TH E ASSESSEE WAS DIRECTED TO PRODUCE THE BILLS OF PURCHASE AND SALE PARTY-WISE A ND TO PRODUCE THE PERSONS WITH WHOM IT HAD ENTERED INTO SUCH TRANSACT IONS. THE AO NOTED THAT ASSESSEE HAD FAILED TO PRODUCE THE NECESSARY B ILLS/VOUCHERS OR IDENTIFY THE PERSONS WITH WHOM IT HAD BUSINESS TRANSACTIONS. THEREFORE HE HELD THAT SINCE NO SUPPORT EVIDENCES LIKE DELIVERY CHALL AN VOUCHERS AND STOCK REGISTERS THE SALES MADE BY THE ASSESSEE OF RS.33 33 077/- COULD NOT BE ITA NOS.4297 TO 4302/DEL./2014 5 VERIFIED AND TREATED AS ASSESSEES INCOME FROM UNDI SCLOSED SOURCES AND TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 35 53 734/-. AGGRIEVED BY THE SAME THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE LD. CIT (A) WHO WAS PLEASED TO PARTLY ALLOW THE APPEAL OF THE ASSESSEE. 3. THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF TH E LD. CIT (A) IS IN APPEAL BEFORE US. 4. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN A SSESSMENT YEAR 2003-04 IS AS FOLLOW :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS FA ILED TO APPRECIATE THAT THE NOTICE ISSUED U/S 153C OF THE I T ACT AND ASSESSMENT ORDER PASSED BY THE LD. AO. U/S. 153C/14 3(3) IS ILLEGAL TIME BARRED BAD IN LAW WITHOUT JURISDICT ION AND WRONG ON FACTS. THE ADDITIONS MADE ARE UNJUST UNLAWFUL A ND ARBITRARY AND ARE MADE AGAINST THE PRINCIPLES OF NATURAL JUST ICE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS FA ILED TO APPRECIATE THAT THE LD. AO. WAS NOT JUSTIFIED TO IG NORE THE SUBMISSIONS OF THE APPELLANT THAT THE ASSESSMENT PR OCEEDINGS FOR THE YEAR UNDER APPEAL WAS NOT PENDING ON THE DA TE OF THE RECORDING OF SATISFACTION U/ S. 153C AND SINCE THE SAME DIDN'T ABATE THE PROCEEDINGS U/S. 153C OF THE IT ACT IN T HIS CASE ARE BAD IN LAW AND DESERVES TO BE QUASHED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS FA ILED TO APPRECIATE THAT THE ASSESSMENT FRAMED BY LD. AO IS AGAINST THE STATUTORY PROVISIONS OF THE ACT AND WITHOUT COMPLYI NG THE PROCEDURES PRESCRIBED U/S. 153C OF THE IT ACT AND A S SUCH THE ASSESSMENT BEING BAD IN LAW DESERVES TO BE QUASHED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS FA ILED TO APPRECIATE THAT THE LD. AO. WAS NOT JUSTIFIED TO IG NORE THE ITA NOS.4297 TO 4302/DEL./2014 6 SUBMISSIONS OF THE APPELLANT THAT ASSESSMENT U/S. 1 53C OF THE IT ACT BE RESTRICTED TO ASSESSMENT IN RESPECT OF SEIZE D DOCUMENTS OF INCRIMINATING NATURE IN THE CASE OF THE APPELLAN T FOR THE YEAR UNDER CONSIDERATION AND IN ABSENCE OF ANY INCRIMINA TING SEIZED DOCUMENT IN THE CASE OF APPELLANT ASSESSMENT FRAME D U/S. 153C OF THE IT ACT FOR THE YEAR UNDER CONSIDERATION IS BAD IN LAW AND DESERVE TO BE QUASHED. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS ER RED IN NOT ADMITTING THE ADDITIONAL EVIDENCES I.E. CONFIRMATIO NS CONFIRMED COPIES OF ACCOUNTS OF ALL THE PARTIES FILED DURING THE APPELLATE PROCEEDINGS AND ALSO IN NOT CONSIDERING THE REMAND REPORT OF THE AO. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS ER RED IN HOLDING THE CONCLUSION THAT THE 'AUDITED BOOKS' NOT WITHSTANDING THE BOOK RESULTS ARE REQUIRED TO BE REJECTED SINCE THE NARRATIONS ARE ARTIFICIAL SHAM AND NOT REFLECTIVE OF THE ACTU AL BUSINESS/ COMMERCIAL TRANSACTIONS. HOWEVER THE LD. CIT (APPE ALS) STILL RELYING ON THESE BOOKS/BOOK RESULTS FOR THE PURPOSE OF CALCULATING THE PEAK FROM THE ENTRIES IN THE CASH B OOK AND / OR BANK BOOK OF THE APPELLANT AMOUNTING OF 20 39 117/ - FOR THE RELEVANT YEAR UNDER CONSIDERATION. 7.A) THAT ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD. CIT (APPEALS)-II HAS ERRED IN SUSTAINING THE ADDITION OF RS.20 39 117/- AS UNEXPL AINED INVESTMENT/EXPENDITURE IGNORING THE FACT THAT THE SAME ARE DULY REFLECTED/ ENTERED IN THE BOOKS OF THE ACCOUNT S OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION; B) THAT THE LD. CIT (APPEALS)-II HAS WRONGLY CALCU LATED THE AMOUNT OF RS.20 39 117/- FOR THE PURPOSE OF SUS TAINING ADDITION AS UNEXPLAINED INVESTMENT/EXPENDITURE; C) THAT THE LD. CIT (APPEALS)-II HAS IGNORED THE C ONCEPT OF 'REAL INCOME' AND WRONGLY CONFIRMED/ CALCULATED THE ADDITION OF RS.20 39 117/- WITHOUT GRANTING THE CREDIT OF TH E PEAK OF FINANCIAL TRANSACTIONS AS PER THE CASH BOOK/BANK BO OK FOR THE PRECEDING YEARS. ITA NOS.4297 TO 4302/DEL./2014 7 D) THAT THE LD. CIT (APPEALS)-II DID NOT GIVE SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 8. THAT THE LD. CIT (APPEALS)-II HAS ERRED IN IGNO RING THE EXPLANATION GIVEN EVIDENCES AND MATERIAL PLACED AN D AVAILABLE ON RECORD. THE SAME HAS NOT BEEN PROPERLY CONSIDERE D AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITIONS MADE. THE ADDITIONS HAVE BEEN SUSTAINED WITH PRESET MIND OF THE LD. CIT APPEALS AND HER ORDER IS BASED ON SURMI SES CONJECTURES AND SUSPICION. 9. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND THE PROVISIONS OF LAW THE VARIOUS OBSERVATIONS AND FINDINGS OF THE LD. CIT (APPEALS)-II AND LD AO IN THE IMPUGNED APPELLATE ORDER AND ASSESSMENT ORDER RESPECTIVELY ARE IRREL EVANT AND VITIATED IN THE LAW. 10. THAT THE APPELLANT CRAVES THE RIGHT TO AMEND A PPEND DELETE ANY OR ALL GROUNDS OF APPEAL. 5. THE MAIN GROUND THAT HAS BEEN AGITATED BEFORE US IS THAT SATISFACTION OF THE AO OF THE SEARCHED PERSON AS ENVISAGED UNDER SECTION 153C OF THE ACT HAS NOT BEEN RECORDED BEFORE INITIATING THE PR OCEEDINGS AGAINST THE ASSESSEE U/S 153C OF THE ACT WHICH VITIATED THE EN TIRE IMPUGNED ASSESSMENTS. 6. LD. AR FOR THE ASSESSEE SHRI KAPIL GOEL SUBMITT ED THAT IN THE PRESENT CASE THERE IS NO SATISFACTION RECORDED BY THE AO OF THE RAIDED PARTY AS ADMITTED IN RTI REPLIES PLACED AT PAGES 9 TO 12 OF THE PAPERBOOK AND AVAILABLE NOTE AT PAGES 7 & 8 OF THE PAPER BOO K IS ONE RECORDED BY THE AO OF THE PRESENT ASSESSEE/OTHER PERSON. HE SUBMI TTED THAT THE SAME IS HELD TO BE INVALID ON SAME FACTS IN THE FOLLOWING C ASES :- ITA NOS.4297 TO 4302/DEL./2014 8 (I) DELHI ITAT H BENCH ORDER IN THE CASE OF TANV EER COLLECTIONS 168 TTJ 145; (II) DELHI ITAT C BENCH ORDER IN THE CASE OF IEC S SOLUTIONS PVT. LTD. (ORDER DATED 13.03.2015); (III) DELHI ITAT C BENCH ORDER IN THE CASE OF GR OVER GARMENTS (P) LTD. (ORDER DATED 29.04.2015); (IV) DELHI ITAT B BENCH ORDER IN THE CASE OF DSL PROPERTIES 60 SOT 88. LD. AR SUBMITTED THAT IT IS NOW HELD BY HONBLE TEL ANGANA & ANDHRA PRADESH HIGH COURT IN SHETTY PHARMACEUTICALS CASE T HAT TWO SEPARATE NOTES ARE MUST U/S 153C I.E. ONE/FIRST BY RAIDED PARTY AO AND OTHER/SECOND BY NON-RAIDED PARTY AO EVEN IF BOTH ARE SAME THIS REC ORDING OF SATISFACTION IS A SINE-QUA NON FOR ASSUMPTION OF JURISDICTION U/S 1 53C. HE SUBMITTED THAT RATIO OF THE AFORESAID JUDGMENT WAS ALSO RELIED UPO N BY DELHI ITAT H BENCH IN THE CASE OF VINITA CHAURASIA ORDER DATED 2 9.05.2015 AND ALSO IN ITAT MUMBAI BENCH D IN THE CASE OF DEVEN MEHTA ( ORDER DATED 24.04.2015). 7. ON THE OTHER HAND LD. DR RELIED ON THE ORDERS O F THE AO AND CIT (A) AND WAS OF THE OPINION THAT SATISFACTION HAS BE EN RECORDED BY THE AO BEFORE PROCEEDINGS AGAINST THE ASSESSEE U/S 153C OF THE ACT AND TOOK OUR ATTENTION TO PAGE 8 OF THE PB WHERE SATISFACTION OF THE AO TO PROCEED AGAINST THE ASSESSEE DATED 03.09.2010 IS THERE SO THERE IS NO ILLEGALITY AS POINTED OUT BY THE LD. AR. THEREFORE ACCORDING TO LD DR THE GROUND RAISED IN THIS BEHALF IS NOT VALID AND NEEDS TO BE REJECTED. ITA NOS.4297 TO 4302/DEL./2014 9 8. WE HAVE HEARD THE RIVAL SUBMISSION AND CAREFULLY GONE THROUGH THE RECORDS AND THE CASE LAWS CITED BEFORE US. THE MAIN ISSUE THAT WAS RAISED BY THE ASSESSEE IS THAT ASSUMPTION OF JURISDICTION BY THE AO BEFORE ISSUING NOTICE U/S 153C OF THE ACT IS NOT IN ACCORDANCE TO LAW AND SO THE IMPUGNED ASSESSMENT U/S 153C READ WITH 153A/143(3) OF THE A CT IS VOID-AB-INITIO AND SHOULD BE QUASHED BEING QUARUM-NON-JUDICE. A P ERUSAL OF THE ASSESSMENT ORDER OF THE ASSESSEE REVEALS THAT A SEA RCH WAS CARRIED OUT U/S 132 OF THE ACT ON SHRI B.K. DHINGRA SMT. POONAM DH INGRA M/S MAYANK TRADERS PVT. LTD. AND M/S. HORIZON PVT. LTD. AND I N SUCH SEARCH PROCEEDINGS CERTAIN DOCUMENTS BELONGING TO THE ASS ESSEE WAS FOUND WHICH LED TO THE MAKING OF ASSESSMENT U/S 153C READ WITH SECTION 153A OF THE ACT. IN ORDER TO APPRECIATE THE CONTENTION MADE BY THE LD. AR ON THE QUESTION OF RECORDING OF PROPER SATISFACTION IT WO ULD BE APPOSITE TO NOTE DOWN THE PRESCRIPTION OF THE RELEVANT PARTS OF SECT ION 153(1) AT THE MATERIAL TIME AS UNDER:- 153C.ASSESSMENT OF INCOME OF ANY OTHER PERSON.- (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECT ION 153 WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BEL ONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED T O IN SECTION 153A THEN THE BOOKS OF ACCOUNT OR DOCUMENT S OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE ITA NOS.4297 TO 4302/DEL./2014 10 AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. 9. FROM THE ABOVE PROVISION IT IS CLEAR THAT WHERE THE AO OF THE PERSON SEARCHED IS SATISFIED THAT ANY MONEY BULLION JEWE LLERY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS ETC. BELONG TO A PERSON OTHER T HAN THE PERSON SEARCHED THEN SUCH DOCUMENTS OR ASSETS ETC. SHALL BE HAND ED OVER TO THE AO OF THE OTHER PERSON AND THE LATER AO SHALL PROCEED AGAIN ST SUCH OTHER PERSON TO ASSESS OR REASSESS HIS INCOME. A BARE PERUSAL OF THE PROVISION INDICATES THAT BEFORE HANDING OVER SUCH DOCUMENTS ETC. TO THE AO OF THE OTHER PERSON A SATISFACTION HAS TO BE RECORDED BY THE AO OF THE PERSON SEARCHED THAT MONEY BULLION OR JEWELLERY ETC. FO UND FROM THE PERSON SEARCHED BELONG TO THE OTHER PERSON. ONLY WHEN SU CH SATISFACTION IS RECORDED BY THE AO OF THE PERSON SEARCHED AND SUCH DOCUMENTS OR ASSETS SEIZED ETC. ARE HANDED OVER TO THE AO OF THE OTH ER PERSON THAT THE LATER AO ACQUIRES JURISDICTION TO MAKE ASSESSMENT OR REAS SESSMENT OF THE OTHER PERSON. IT IS THEREFORE CLEAR THAT THE AO OF THE OTHER PERSON CAN ACQUIRE JURISDICTION TO ASSESS OR REASSESS INCOME OF THE O THER PERSON ONLY WHEN THE AO OF THE PERSON SEARCHED RECORDS SATISFACTION IN HIS CASE (SEARCHED PERSON) BEFORE HANDING OVER MONEY BULLION JEWELLE RY ETC. TO HIM. SO WHAT EMERGES IS THAT THE RECORDING OF SATISFACTION BY THE AO OF THE PERSON SEARCHED IS A CONDITION PRECEDENT FOR THE AO OF THE OTHER PERSON TO ITA NOS.4297 TO 4302/DEL./2014 11 ACQUIRE JURISDICTION. UNLESS SUCH JURISDICTIONAL FA CT IS SATISFIED THERE CAN BE NO QUESTION OF MAKING ASSESSMENT OR REASSESSMENT OF THE OTHER PERSON. 10. IN THE CASE OF ANIL KUMAR & ORS. VS. UOI & ORS. REPORTED IN 155 TAXMAN 659 (SC) THE HONBLE APEX COURT OBSERVED TH AT A JURISDICTIONAL FACT IS A FACT WHICH MUST EXIST BEFORE A COURT A T RIBUNAL OR AN AUTHORITY ASSUMES JURISDICTION OVER A PARTICULAR MATTER. A J URISDICTIONAL FACT IS ONE ON EXISTENCE OR NON-EXISTENCE OF WHICH DEPENDS JURI SDICTION OF A COURT A TRIBUNAL OR AN AUTHORITY. . IT IS THE FACT UPON WHI CH AN ADMINISTRATIVE AGENCY'S POWER TO ACT DEPENDS. IF THE JURISDICTIONA L FACT DOES NOT EXIST THE COURT AUTHORITY OR OFFICER CANNOT ACT. IF A COURT OR AUTHORITY WRONGLY ASSUMES THE EXISTENCE OF SUCH FACT THE ORDER CAN B E QUESTIONED BY A WRIT OF CERTIORARI. THE UNDERLYING PRINCIPLE IS THAT BY ERR ONEOUSLY ASSUMING EXISTENCE OF SUCH JURISDICTIONAL FACT NO AUTHORITY CAN CONFER UPON ITSELF JURISDICTION WHICH IT OTHERWISE DOES NOT POSSESS. THE EXISTENCE OF 'JURISDICTIONAL FACT' IS SINE QUA NON FOR THE EXERC ISE OF POWER BY A COURT OF LIMITED JURISDICTION . 11. AS NOTED EARLIER SECTION 153C PROVIDES FOR TAKI NG RECOURSE TO ASSESSMENT IN RESPECT OF ANY OTHER PERSON THE COND ITIONS PRECEDENT WHEREFORE ARE : (I) SATISFACTION MUST BE RECORDED B Y THE AO THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON OTHER THA N THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER S. 132; (II) THE BOOKS OF ACCOUNT ITA NOS.4297 TO 4302/DEL./2014 12 OR OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONE D HAD BEEN HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSO N; AND (III) THE AO HAS PROCEEDED UNDER S. 153C AGAINST SUCH OTHER PERSON. THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISIONS OF S. 153C T HUS ARE REQUIRED TO BE SATISFIED BEFORE THE PROVISIONS OF SAID SECTION ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WHOSE PREMISES HAD BEE N SEARCHED OR WHOSE DOCUMENTS AND OTHER ASSETS HAD BEEN REQUISITIONED U NDER S. 132A. THAT THE RECORDING OF SATISFACTION BY THE AO HAVING JURISDIC TION OVER THE PERSON SEARCHED IS AN ESSENTIAL AND PREREQUISITE CONDITION FOR BESTOWING JURISDICTION TO THE AO OF THE OTHER PERSON. 12. LET US EXAMINE THE FACTS OF THE INSTANT CASE MO RE ELABORATELY. IT IS SEEN THAT SOME SATISFACTION WAS RECORDED A COPY OF WHICH IS AVAILABLE ON PAGE 8 OF THE PAPER BOOK AS UNDER :- SATISFACTION NOTE FOR ISSUING NOTICE U/S 153C OF T HE I.T. ACT 1961 IN THE CASE OF MRS. NUTAN KHURANA PROP. ISHIKA CREATIONS A1-82 2 ND FLOOR HASTAL ROAD UTTAM NAGAR NEW DELHI PAN : AJFPK7466E FOR A.Y. 2003-04 TO 200 8- 09. 03.09.2010 IN THE CASE OF SH. B.K. DHINGRA SMT. POONAM DHINGRA M/S. MAYANK TRADERS PVT. LTD. M/S. HORIZON PVT. LTD. SEARCH & SEIZURE TOOK PLACE U/S 132 ON 20.10.2008. THE UNDERSIGNED IS THE JURISDICTIONAL AO OF THESE CASES. DURING THE COURSE OF SEARCH & SEIZURE DOCUMENTS/PAPERS AS PER ANNEXURE A-26 27 & 28 SEIZED BY PARTY 04A ARE FOUND TO BELONG TO MRS. NUTAN KHURANA PROP. ISHIKA CREATIONS A1-82 2 ND FLOOR HASTAL ROAD UTTAM NAGAR NEW DELHI. I HAVE EXAMINED THE ABOVE MENTIONED DOCUMENTS/PAPERS AND PROVISION ITA NOS.4297 TO 4302/DEL./2014 13 OF SECTION 153C IS INVOKEABLE IN THIS CASE. AS THE UNDERSIGNED IS ALSO THE JURISDICTIONAL AO OF MRS. NUTAN KHURANA PROP. ISHIKA CREATIONS A1-82 2 ND FLOOR HASTAL ROAD UTTAM NAGAR NEW DELHI. THIS SATISFACTION NOTE IS RECORDED AND IS PLACED IN THE FILE BEFORE ISSUING NOTICE U/S 153C. SD/- ACIT CENTRAL CIRCLE 17 NEW DELH I IT CAN BE SEEN FROM THE ASSESSMENT ORDER THAT NOTIC E U/S 153C WAS ISSUED TO THE ASSESSEE BY THE ACIT CENTRAL CIRCLE-17 ON 01.1 0.2010 AND SATISFACTION WAS RECORDED ON 03.09.2010. IT IS APPA RENT THAT IT WAS: SATISFACTION NOTE FOR ISSUING NOTICE U/S 153C OF TH E I.T. ACT 1961 IN THE CASE OF MRS. NUTAN KHURANA PROP. ISHIKA CREATIONS IT IS FURTHER NOTICEABLE FROM THE ABOVE THAT : THIS SATISFACTION NOTE IS RECORDED AND IS PLACED IN THE FILE BEFORE ISSUING NOTICE U/S 153C. THE CONTENTS OF THE ABOVE SATISFACTION NOTE LEAVE NOTHING TO DOUBT THAT IT WAS RECORDED BY THE AO OF THE ASSESSEE BEFORE TAKING UP THE ASSESSMENT U/S 153C OF THE ACT PURSUANT TO THE SEARCH CONDUCTED ON SHRI B.K. DHING RA SMT. POONAM DHINGRA M/S MAYANK TRADERS PVT. LTD. AND M/S. HORI ZON PVT. LTD.. PAGES 9-12 OF THE PAPER BOOK ARE THE COPIES OF THE REPLY DATED 10.06.2013 AND 28.06.2013/02.07.2013 FURNISHED BY THE DY. COMMISSI ONER OF INCOME-TAX CENTRAL CIRCLE-17 NEW DELHI TO SHRI B.K. DHINGRA SMT. POONAM DHINGRA M/S MAYANK TRADERS PVT. LTD. AND M/S. HORIZON PVT. LTD. UNDER THE PROVISIONS OF RTI ACT 2005. THE RELEVANT PART OF THE REPLY DATED 10.6.2013 GIVEN TO SH. B.K. DHINGRA IS AS UNDER:- ITA NOS.4297 TO 4302/DEL./2014 14 2. FROM THE ASSESSMENT RECORDS OF SH. BHUPESH KUMAR DHINGRA WHICH IS COVERED UNDER SECTION 153A FOR THE ASST. YEARS FROM 2003-04 TO 2008-09 (BLOCK PERI OD) IT IS NOTICED THAT THERE IS NO SATISFACTION NOTE AVAILABLE/RECORDED IN RESPECT OF OTHER ENTITIES. SIMILAR REPLIES HAVE BEEN GIVEN TO SMT. POONAM DHIN GRA M/S MAYANK TRADERS PVT. LTD. AND M/S. HORIZON PVT. LTD.. ON A CONSIDERATION OF THE ABOVE REPLIES GIVEN BY THE DEPARTMENT TO THE PERSON S SEARCHED IT IS MANIFEST THAT THERE IS NO SATISFACTION NOTE AVAILABLE/RECORDED IN RESPECT OF OTHER ENTITIES . ON A CONJOINT READING OF THE SATISFACTION NOTE A ND REPLIES GIVEN BY THE DEPARTMENT TO THE PERSONS SEARCHED UND ER THE RTI ACT IT CLEARLY EMERGES THAT NO SATISFACTION WAS RECORDED B Y THE AO IN THE CASES OF THE PERSONS SEARCHED U/S 132(1) OF THE ACT (I.E. SH RI B.K. DHINGRA SMT. POONAM DHINGRA M/S MAYANK TRADERS PVT. LTD. AND M /S HORIZON PVT. LTD ) THAT SOME BOOKS OF ACCOUNT OR DOCUMENTS ETC. BELONGING TO THE ASSESSEE WERE FOUND WHICH WERE HANDED OVER TO THE A O OF THE OTHER PERSON (I.E. THE ASSESSEE). THE SATISFACTION NOTE AS REPRODUCED ABOVE HAS BEEN PREPARED BY THE AO OF THE ASSESSEE. 13. THE LD. DR WAS OF THE OPINION THAT SINCE THE A O OF THE PERSONS SEARCHED AND THE ASSESSEE IS SAME IT DOES NOT MAKE ANY DIFFERENCE WHETHER THE SATISFACTION IS RECORDED IN THE CASE OF THE PER SONS SEARCHED OR OTHER PERSON. HE EMPHASIZED ON THE FACTUM OF RECORDING SA TISFACTION BY THE AO ITA NOS.4297 TO 4302/DEL./2014 15 WHICH CONDITION IN HIS OPINION STOOD SATISFIED BY VIRTUE OF IT HAVING BEEN RECORDED BY THE COMMON AO. 14. THIS PARTICULAR ARGUMENT OF THE REVENUE WAS ANS WERED BY THE COORDINATE BENCH IN THE CASE OF M/S. TANVIR COLLECT IONS PVT. LTD. VS. ACIT CENTRAL CIRCLE 21 NEW DELHI IN ITA NO.2421/D EL/2014 ORDER DATED 16.01.2015 AS UNDER :- 16. IN OUR CONSIDERED OPINION THIS CONTENTION ADV ANCED ON BEHALF OF THE REVENUE IS DEVOID OF MERIT. WE FAI L TO COMPREHEND AS TO HOW THE REQUIREMENT OF RECORDING SATISFACTION BY THE AO OF THE PERSON SEARCHED PROVI DED BY THE STATUTE CAN BE SUBSTITUTED WITH ANYTHING ELSE. THERE IS AN UNDERLYING RATIONALE IN PROVIDING FOR RECORDING OF SUCH SATISFACTION BY THE AO OF THE PERSON SEARCHED. AS T HE MONEY BULLION JEWELLERY BOOKS OF ACCOUNT OR DOC UMENTS ETC. ALWAYS COME TO THE POSSESSION OF THE AO OF THE PERSON SEARCHED WHO HAS TO FRAME ASSESSMENT IT IS ONLY HE WHO CAN FIND OUT THAT WHICH OF SUCH DOCUMENTS ETC. DO N OT BELONG TO THE PERSON SEARCHED AND ARE RELEVANT FOR THE ASSESSMENT OF THE OTHER PERSON. IT IS NOT AS IF ALL THE BOOKS OF ACCOUNT AND DOCUMENTS ETC. FOUND DURING THE COUR SE OF A SEARCH ARE EVALUATED BY A SEPARATE AUTHORITY TO FIG URE OUT THAT WHICH OF THESE DOCUMENTS BELONG TO THE PERSON SEARCHED AND TO THE OTHERS AND THUS HANDED OVER TO THE CONCERNED AOS OF THE PERSON SEARCHED AND OTHERS FOR MAKING ASSESSMENT. AS IT IS ONLY THE AO OF THE PERS ON SEARCHED WHO CAN REACH A CONCLUSION THAT SOME OF TH E DOCUMENTS ETC. DO NOT BELONG TO THE PERSON SEARCHED BUT TO SOME OTHER PERSON THE LEGISLATURE HAS PROVIDED FOR RECORDING OF SUCH SATISFACTION BY THE AO OF THE PER SON SEARCHED. IT IS NOT PERMISSIBLE UNDER THE LAW TO RE QUIRE THE AO OF THE OTHER PERSON TO RECORD SUCH SATISFACTION BY THE AO. 17. AS REGARDS THE OTHER ARGUMENT OF THE LD. DR THA T SINCE THE AO OF BOTH THE PERSONS SEARCHED AND THE A SSESSEE IS THE SAME PERSON HENCE THE REQUIREMENT OF RECORD ING SATISFACTION BY THE AO OF THE PERSONS SEARCHED SHOU LD BE ITA NOS.4297 TO 4302/DEL./2014 16 DEEMED TO HAVE BEEN FULFILLED WITH THE RECORDING OF SATISFACTION BY THE AO OF THE ASSESSEE. WE ARE AGA IN UNABLE TO APPRECIATE THIS CONTENTION THAT THE COMMO NNESS OF THE AO WOULD MAKE NO DIFFERENCE IN SO FAR AS THE RECORDING OF SATISFACTION IN THE CASE OF THE PERSON S SEARCHED IS CONCERNED. WHAT IS RELEVANT FOR THIS PURPOSE IS NOT THE IDENTITY OF THE PERSON ASSESSING BUT HIS POSITION A ND THE CAPACITY. WHEN THE LAW REQUIRES THE AO OF THE PERSO N SEARCHED TO RECORD THE NECESSARY SATISFACTION IT I S THE AO HAVING JURISDICTION OVER THE PERSON SEARCHED WHO IS OBLIGED TO RECORD SUCH SATISFACTION IN THE CAPACITY OF THAT AO AND THAT TOO IN THE CASE OF THE PERSON SEARCHED. THE ME RE FACT THAT THE AO OF THE PERSON SEARCHED AND THE ASSESSEE IS THE SAME PERSON DOES NOT IN ANY MANNER OBLITERATE TH E REQUIREMENT OF LAW NECESSITATING THE RECORDING OF SATISFACTION IN THE CASE OF THE PERSON SEARCHED THA T MONEY BULLION JEWELLERY ETC. FOUND FROM THE PERSON SEA RCHED BELONGS TO THE OTHER PERSON. WHAT IS CRUCIAL TO NOTE IS CAPACITY OF THE AO AND NOT HIS IDENTITY. IN VIEW OF THE FACT THAT WHEN THE STATUTORY STIPULATION IS FOR RECORDIN G THE SATISFACTION BY THE AO OF THE PERSON SEARCHED THEN IT CANNOT BE SUBSTITUTED WITH THE SATISFACTION OF THE AO OF THE OTHER PERSON. THIS CONTENTION ALSO FAILS. 18. AT THIS STAGE IT IS RELEVANT TO NOTE THAT THE LEGISLATURE HAS SUBSTITUTED THE LATTER PART OF SECTION 153C(1) BY THE FINANCE (NO.2) ACT 2014 W.E.F. 1.10.2014. THE HIT HERTO PART OF SUB-SECTION (1) : AND THAT ASSESSING OFFIC ER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NO TICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PER SON REFERRED TO IN SUB-SECTION (1) OF SECTION 153A. HAS BEEN SUBSTITUTED AS UNDER : - AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A IF THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION O F THE TOTAL INCOME OF SUCH OTHER PERSON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SU B- SECTION (1) OF SECTION. ITA NOS.4297 TO 4302/DEL./2014 17 19. THE ABOVE SUBSTITUTION HAS THE EFFECT OF NOW MA KING IT MANDATORY FOR THE AO OF THE OTHER PERSON ALSO TO RECORD SATISFACTION THAT THE BOOKS OF ACCOUNT OR DOCUMENTS ETC. HAVE A BEARING ON THE DETERMINATION OF THE TOTAL IN COME OF SUCH OTHER PERSON BEFORE EMBARKING UPON THE EXERC ISE OF HIS ASSESSMENT OR REASSESSMENT. THEREFORE NOW UND ER THE LAW W.E.F. 1.10.2014 IT HAS BECOME OBLIGATORY NOT ONLY FOR THE AO OF THE PERSON SEARCHED TO RECORD SATISFACTIO N BEFORE HANDING OVER BOOKS OF ACCOUNT OR DOCUMENTS ETC. T O THE AO OF THE OTHER PERSON BUT SUCH AO OF THE OTHE R PERSON IS ALSO REQUIRED TO RECORD SATISFACTION THA T THE BOOKS OF ACCOUNT OR DOCUMENTS ETC. HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON. IN THE PRE-SUBSTITUTION ERA OF THE RELEVANT PART OF SU B-SECTION (1) OF SECTION 153C COVERING THE PERIOD UNDER CONSIDERATION THE JURISDICTIONAL CONDITION REMAINS THAT THE SATISFACTION IS REQUIRED TO BE RECORDED BY AND IN T HE CASE OF THE PERSON SEARCHED SO AS TO ENABLE THE AO OF THE OTHER PERSON TO START WITH THE PROCEEDINGS FOR MAKING AS SESSMENT OR REASSESSMENT. 20. THE LD. DR CONTENDED THAT RECORDING OF SATISFAC TION BY THE AO OF THE ASSESSEE AT THE MOST CAN BE TREATE D AS A TECHNICAL MISTAKE AND HENCE SHOULD NOT ECLIPSE THE ASSESSMENT. RELYING ON CERTAIN JUDGMENTS THE LD. D R SUBMITTED THAT THE TECHNICALITIES CANNOT BE ALLOWED TO PREVAIL IN THE COURSE OF INDULGENCE OF JUSTICE. 21. WE AGREE IN PRINCIPLE THAT TECHNICALITIES CANNO T COME IN THE WAY OF DISPENSATION OF JUSTICE. HOWEVER IT IS IMPORTANT TO NOTE THAT THE LACK OF JURISDICTION BY THE AO CANNOT BE PUT UNDER THE CARPET IN THE GUISE OF A TE CHNICAL DEFECT. IT GOES WITHOUT SAYING THAT NO ASSESSMENT OR OTHER PROCEEDINGS CAN BE LAWFULLY TAKEN UP AND COMPLETED UNLESS THE CONCERNED AUTHORITY HAS JURISDICTION TO DO SO. LACK OF JURISDICTION GOES TO THE VERY ROOT OF THE MATTER AN D CUTS THE TREE OF ASSESSMENT IF THE FOUNDATION OF JURISDICTIO N IS MISSING. 22. THE LD. AR HAS BROUGHT TO OUR NOTICE TWO ORDERS PASSED BY THE DELHI BENCHES OF THE TRIBUNAL NAMELY ACIT VS. INLAY MARKETING PVT. LTD. (ITA NO.4200/DEL/2012 ) ETC. ITA NOS.4297 TO 4302/DEL./2014 18 AND DCIT VS. AAKASH AROGYA MANDIR PVT. LTD. (ITA NO.5437/DEL/2013) ETC. IN WHICH THE NOTICES AND THE CONSEQUENTIAL ASSESSMENTS U/S 153C UNDER IDENTICAL CIRCUMSTANCES HAVE BEEN QUASHED. THE LD. DR CONTEN DED THAT THE ABOVE REFERRED TWO TRIBUNAL ORDERS ARE PER INCURIUM AND SHOULD NOT BE FOLLOWED. THE MAIN REASON FOR DECLARING THE TRIBUNAL ORDERS AS PER INCURIUM WAS THE NON- CONSIDERATION OF THE JUDGMENT OF THE HONBLE JURISD ICTIONAL HIGH COURT IN JUDGMENT IN THE CASE OF SSP AVIATION LTD. VS. DCIT (2012) 252 CTR (DEL) 291 . 23. LET US EXAMINE THE CASE OF SSP AVIATION LTD. (SUPRA) FOR EVALUATING THE CONTENTION THAT THE INSTANT ASSE SSMENT BE DECLARED AS PER LAW. THE HONBLE HIGH COURT IN THAT CASE HAS HELD THAT THE ASSESSING OFFICER HAVING JURISDIC TION OVER THE SEARCHED PERSON SHOULD BE SATISFIED THAT THE VA LUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DUR ING THE SEARCH BELONG TO A PERSON OTHER THAN THE SEARCHED P ERSON AND THERE IS NO REQUIREMENT IN SECTION 153C(1) THAT THE ASSESSING OFFICER SHOULD ALSO BE SATISFIED THAT SUC H VALUABLE ARTICLES OR BOOKS OF ACCOUNT OR DOCUMENTS BELONGING TO THE OTHER PERSON MUST CONCLUSIVELY REF LECT OR DISCLOSE ANY UNDISCLOSED INCOME. WE FIND THAT THER E IS NO SUCH CONTROVERSY BEFORE US AS WAS THERE BEFORE THE HONBLE HIGH COURT. IT IS NOT THE CASE OF THE ASSESSEE BEFO RE US IN THIS GROUND THAT THE DOCUMENTS ETC. FOUND FROM THE PERSONS SEARCHED DID NOT POSITIVELY INDICATE THE EXISTENCE OF SOME INCOME IN THE HANDS OF THE ASSESSEE. THE ARGUMENT I S SIMPLY CONFINED TO NON-RECORDING OF SATISFACTION BY THE AO OF THE PERSONS SEARCHED. INSTEAD OF SUPPORTING THE DEPARTMENTS CASE WE FIND THAT THIS JUDGMENT STREN GTHENS THE ASSESASEES CASE BY MAKING IT CLEAR IN NO UNCER TAIN TERMS THAT THE AO OF THE PERSON SEARCHED IS OBLIGED TO RECORD THE SATISFACTION. THE RELEVANT OBSERVATIONS OF THE HONBLE HIGH COURT CONTAINED IN PARA 15 MERIT REPRODUCTION AS UNDER: - IT NEEDS TO BE APPRECIATED THAT THE SATISFACTION THAT IS REQUIRED TO BE REACHED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSON IS THAT THE VALUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DURING THE SEARCH BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON. THERE IS NO ITA NOS.4297 TO 4302/DEL./2014 19 REQUIREMENT IN SECTION 153C(1) THAT THE ASSESSING OFFICER SHOULD ALSO BE SATISFIED THAT SUCH VALUABLE ARTICLES OR BOOKS OF ACCOUNT OR DOCUMENTS BELONGING TO THE OTHER PERSON MUST BE SHOWN TO SHOW TO CONCLUSIVELY REFLECT OR DISCLOSE ANY UNDISCLOSED INCOME. 24. IT IS PRETTY CLEAR FROM THE ABOVE EXTRACTION TH AT THE SATISFACTION AS REFERRED TO IT IN THIS CASE IS THAT OF THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEAR CHED PERSON. AS SUCH WE ARE OF THE CONSIDERED OPINION T HAT THIS JUDGMENT DOES NOT SUPPORT THE REVENUES CASE. RESUL TANTLY THE CHARACTERIZATION OF THE ABOVE TRIBUNAL ORDERS A S PER INCURIUM BY THE LD. DR IS ABSOLUTELY WITHOUT ANY LEGALLY SUSTAINABLE BASIS. 25. EVEN OTHERWISE THE JUDICIAL DISCIPLINE REQUIRE S A SUBSEQUENT BENCH TO THE FOLLOW AN EARLIER ORDER OF A CO- ORDINATE BENCH ON THE POINT. IT IS ONLY IF THE SUBS EQUENT BENCH FEELS ITSELF UNABLE TO CONCUR WITH THE VIEW T AKEN EARLIER THAT IT IS REQUIRED TO REFER THE CASE FOR C ONSIDERATION BY A SPECIAL BENCH. IN OUR CONSIDERED OPINION THES E TWO ORDERS OF THE CO-ORDINATE BENCHES ARE PERFECTLY IN ACCORDANCE WITH LAW. 26. COMING BACK TO FACTS OF THE INSTANT CASE IT IS PALPABLE THAT THE AO OF SHRI B.K. DHINGRA SMT. PO ONAM DHINGRA AND M/S MADHUSUDAN BUILDCON PVT. LTD. DID NOT RECORD ANY SATISFACTION THAT SOME MONEY BULLION J EWELLERY OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS FOUND FROM THESE PERSONS BELONGED TO THE ASSESSEE. THE ABSENCE OF SU CH SATISFACTION IN OUR CONSIDERED OPINION FAILED TO CONFER ANY VALID AND LAWFUL JURISDICTION ON THE AO OF THE ASSE SSEE TO PROCEED WITH THE MATTER OF THE ASSESSMENT U/S 153C OF THE ACT. WE ERGO SET ASIDE THE INITIATION AND THE ENS UING ASSESSMENT ON THE ASSESSEE AS VOID AB INITIO . 27. THE RELIANCE OF THE LD. DR ON SOME DECISIONS ON OTHER LEGAL ISSUES OR MERITS IS OF NO CONSEQUENCE I N VIEW OF THE LACK OF JURISDICTION OF THE AO TO PROCEED WITH THE ASSESSMENTS U/S 153C OF THE ACT. IN VIEW OF OUR DE CISION ON THE FIRST LEGAL ISSUE THERE IS NO NEED TO ESPOU SE THE OTHER ITA NOS.4297 TO 4302/DEL./2014 20 GROUNDS TAKEN BY THE ASSESSEE DEALING WITH OTHER LE GAL ISSUES OR MERITS. 28. IN THE RESULT THE APPEAL IS ALLOWED. 15. IN THE LIGHT OF THE SAID RATIO-DECIDENDI OF THE AFORESAID ORDER OF THE TRIBUNAL THE LD COUNSEL FOR ASSESSEE SUBMITTED TH AT THE FIRST STEP ITSELF HAS NOT BEEN FULFILLED. SO ACCORDING TO THE LD COUNSEL THE ISSUANCE OF NOTICE U/S 153C IS ILLEGAL. 16. WE ALSO TAKE NOTE OF THE RECENT JUDGEMENT OF TH E HONBLE JURISDICTIONAL HIGH COURT IN A SIMILAR CASE IN PEPS ICO INDIA HOLIDAY (P) LTD VS. ACIT (2014) 50 TAXMANN. COM 299 (DELHI) AFTER CONSIDERING THE DECISIONS CITED BY THE REVENUE HELD IN PARA 5 AS FO LLOWS:- 5. WHILE COMING TO THE AFORESAID CONCLUSIONS THE C OURT HAD ALSO EXAMINED THE DECISIONS WHICH HAD BEEN CITED ON BEHALF OF THE REVENUE AND WHICH ARE ONCE AGAIN BEING REITER ATED BY THE LEARNED COUNSEL FOR THE REVENUE BEFORE US. THOSE DE CISIONS ARE KAMLESHBHAI DHARAMSHIBHAI PATEL V. CIT [2013] 214 T AXMAN 558/31 TAXMANN.COM 50 (GUJ.); CIT V. CLASSIC ENTERP RISES [2013] 358 ITR 465/219 TAXMAN 237/35 TAXMANN.COM 24 4 (ALL.) AND A DECISION OF A DIVISION BENCH OF THIS C OURT IN SSP AVIATION LTD. V. DY. CIT [2012] 346 ITR 177/207 TAX MAN 260/20 TAXMANN.COM 214. THIS COURT HAD INDICATED IN ITS JUDGEMENT IN PEPSI FOODS (P.) LTD. (SUPRA) THAT THE CASE OF KAMLESHBHAI DHARAMSHIBHAI PATEL (SUPRA) WAS DISTING UISHABLE ON FACTS. THOSE OBSERVATIONS WOULD APPLY TO THE PRE SENT WRIT PETITIONS ALSO. AS REGARDS THE DECISION OF THE ALLA HABAD HIGH COURT IN CLASSIC ENTERPRISES (SUPRA) THIS COURT HA D INDICATED THAT IT COULD NOT AGREE WITH THE CONCLUSIONS AND OB SERVATIONS OF THE ALLAHABAD HIGH COURT INASMUCH AS THE DECISION O F THE ALLAHABAD HIGH COURT WAS PREMISED ON A CONSIDERATIO N OF THE PROVISIONS OF SECTION 158BD OF THE SAID ACT WHICH A RE ENTIRELY DIFFERENT FROM THE PROVISIONS OF SECTION 153C OF TH E SAID ACT. FURTHERMORE WITH REGARD TO THE DECISION IN SSP AVI ATION LTD. ITA NOS.4297 TO 4302/DEL./2014 21 (SUPRA) THIS COURT HAD NOTED THAT THE SAID DECISIO N DOES NOT MILITATE AGAINST THE VIEW TAKEN IN PEPSI FOODS (P.) LTD. (SUPRA). 6. THE LEARNED COUNSEL FOR THE REVENUE HAS CITED AN ADDITIONAL DECISION BEFORE US TODAY AND THAT IS THE CASE OF SARVESH KUMAR AGARWAL V. UNION OF INDIA [2013] 353 ITR 26/216 TAXMAN 109 (MAG.)/35 TAXMANN.COM 85 (ALL). T HIS DECISION ALSO IN OUR VIEW DOES NOT ADVANCE THE CA SE OF THE REVENUE. THIS WOULD BE EVIDENT FROM THE OBSERVATION S OF THE ALLAHABAD HIGH COURT IN PARAGRAPHS 19 TO 21 OF THE SAID DECISION WHICH READ AS UNDER: '19. IN MANISH MAHESHWARIS CASE (SUPRA) THE SUPREM E COURT OBSERVED THAT TAXING STATUTE MUST BE CONSTRUC TED STRICTLY. THE COURT HOWEVER SHALL NOT INTERPRET S TATUTORY PROVISIONS IN SUCH A MANNER WHICH WOULD CREATE AN ADDITIONAL PHYSICAL BURDEN ON A PERSON. IN CASE OF ANY DOUBT OR DISPUTE CONSTRUCTION IS TO BE MADE IN FAV OUR OF THE TAX PAYER AND AGAINST THE REVENUE. 20. IN THE PRESENT CASE WE DO NOT FIND ANYTHING WRO NG IN THE SATISFACTION NOTE AND THE FORWARDING OF THE ENTIRE MATTER BY THE INCOME TAX OFFICER WARD-ILL (2) AHMEDABAD TO THE ASSESSING OFFICER OF THE PETITIONE R AT BAREILLY. ALL THE REQUIREMENTS OF SECTION 153(C) WE RE COMPLIED WITH BY THE INCOME TAX OFFICER WARD-ILL ( 2) AHMEDABAD. A SEARCH UNDER SECTION 132A WAS CARRIED OUT AND BULLION WAS SEIZED. THE CASE WAS SELECTED F OR COMPULSORY SCRUTINY FOR SIX ASSESSMENT YEARS. THE ASSESSEE ESTABLISHED THAT THE SEIZED SILVER BELONGS TO M/S SARVESH JEWELLERS BAREILLY - THE PETITIONER. THE OWNERSHIP AND CONSIGNMENT OF THE PETITIONER WAS ALS O CONFIRMED BY THE ASSESSING OFFICER OF THE PETITIONE R AT BAREILLY. THE INCOME TAX OFFICER WARD-ILL (2) AHMEDABAD DID NOT COMMIT ANY ERROR IN LAW IN RECORDING THE SATISFACTION NOTE REQUESTING THE PETI TIONERS ASSESSING OFFICER TO PROCEED UNDER SECTION 153(C) O F THE LT. ACT. 21. AFTER THE ASSESSMENT OF THE PERSON IN RESPECT O F WHOM SEARCH ACTION WAS CARRIED OUT IS COMPLETED TH E OFFICER UNDER SECTION 153C WHERE HE FIND THAT SEIZ ED ARTICLES BELONG TO SOME OTHER PERSON HAS TO FORWAR D A ITA NOS.4297 TO 4302/DEL./2014 22 SATISFACTION NOTE TO THE ASSESSING OFFICER ON SUCH PERSON. THE SATISFACTION IN SUCH CASE IS IN RESPECT OF THE MATERIAL AND DISCLOSURES OF THE PERSON WITH WHICH THE ARTICL ES OR ASSETS ARE FOUND AND NOT IN RESPECT OF THE PERSON W HO WHOM THEY BELONG.'(UNDERLINING ADDED) 7. THE ABOVE EXTRACT MAKES IT CLEAR THAT A TAXING S TATUTE MUST BE CONSTRUED STRICTLY AND IN THE CASE OF A DOU BT OR DISPUTE THE CONSTRUCTION IN FAVOUR OF THE ASSESSEE HAS TO B E ADOPTED. APART FROM THIS THE MATERIAL OBSERVATION OF THE AL LAHABAD HIGH COURT IN THE CASE OF SAVESH KUMAR AGARWAL (SUPRA) I S TO BE FOUND IN PARAGRAPH 20 PAGE 13 OF 16 THEREOF WHERE I T HAS BEEN OBSERVED THAT THE ASSESSEE ESTABLISHED THAT THE SEI ZED SILVER BELONGS TO M/S. SARVESH JEWELLERS BAREILLY - THE P ETITIONER. IN OTHER WORDS THE PERSON FROM WHOM THE BULLION WAS S EIZED WAS ABLE TO ESTABLISH THAT IT DID NOT BELONG TO HIM BUT TO SARVESH JEWELLERS. IT IS IN THAT CONTEXT THAT THE PROVISION S OF SECTION 153C OF THE ACT WERE INVOKED INASMUCH AS THE ASSESS ING OFFICER WOULD THEN BE CONSIDERED AS HAVING BEEN SAT ISFIED THAT THE BULLION WHICH WAS SEIZED FROM THE SEARCHED PERS ON DID NOT BELONG TO THE SEARCHED PERSON BUT TO SOME OTHER PER SON (IN THAT CASE M/S. SARVESH JEWELLERS BAREILLY). 8. FROM THE FOREGOING DISCUSSION IT IS EVIDENT THAT IN ORDER THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON C OMES TO THE SATISFACTION THAT DOCUMENTS OR MATERIALS FOUND DURI NG THE SEARCH BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON IT IS NECESSARY THAT HE ARRIVES AT THE SATISFACTION THAT THE SAID DOCUMENTS OR MATERIALS DO NOT BELONG TO THE SEARCHE D PERSON. WE MAY POINT OUT THAT IN THE COURSE OF THE ARGUMENT S WE HAD ASKED THE LEARNED COUNSEL FOR THE REVENUE AS TO WHE THER THE DOCUMENTS IN QUESTION HAD BEEN DISCLAIMED BY THE JA IPURIA GROUP. THE LEARNED COUNSEL FOR THE REVENUE ON INST RUCTIONS STATES THAT THIS WAS NOT THE CASE. IN OTHER WORDS IT FOLLOWS THAT THE JAIPURIA GROUP DID NOT SAY THAT THE DOCUMENTS D ID NOT BELONG TO THEM. 17. THE HONBLE DELHI HIGH COURT FURTHER HELD AS UN DER:- 13. HAVING SET OUT THE POSITION IN LAW IN THE DECI SION OF THIS COURT IN THE CASE OF PEPSI FOODS PVT. LTD. (SUPRA) IT MUST BE SEEN AS TO WHETHER THE ASSESSING OFFICER OF THE SEA RCHED PERSON (THE JAIPURIA GROUP) COULD BE SAID TO HAVE ARRIVED AT A ITA NOS.4297 TO 4302/DEL./2014 23 SATISFACTION THAT THE DOCUMENTS MENTIONED ABOVE BEL ONGED TO THE PETITIONERS. 14. FIRST OF ALL WE MAY POINT OUT ONCE AGAIN THAT IT IS NOBODY'S CASE THAT THE JAIPURIA GROUP HAD DISCLAIME D THESE DOCUMENTS AS BELONGING TO THEM. UNLESS AND UNTIL IT IS ESTABLISHED THAT THE DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON THE PROVISIONS OF SECTION 153C OF THE SAID ACT DO NOT GET ATTRACTED BECAUSE THE VERY EXPRESSION USED IN S ECTION 153C OF THE SAID ACT IS THAT 'WHERE THE ASSESSING OFFICE R IS SATISFIED THAT ANY MONEY BULLION JEWELLERY OR OTHER VALUABL E ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR RE QUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A .... ' IN VIEW OF THIS PHRASE IT I S NECESSARY THAT BEFORE THE PROVISIONS OF SECTION 153C OF THE SAID A CT CAN BE INVOKED THE ASSESSING OFFICER OF THE SEARCHED PERS ON MUST BE SATISFIED THAT THE SEIZED MATERIAL (WHICH INCLUDES DOCUMENTS) DOES NOT BELONG TO THE PERSON REFERRED TO IN SECTIO N 153A (I.E. THE SEARCHED PERSON). IN THE SATISFACTION NOTE WHI CH IS THE SUBJECT MATTER OF THESE WRIT PETITIONS THERE IS NO THING THEREIN TO INDICATE THAT THE SEIZED DOCUMENTS DO NOT BELONG TO THE JAIPURIA GROUP. THIS IS EVEN APART FROM THE FACT THAT AS WE HAVE NOTED ABOVE THERE IS NO DISCLAIMER ON THE PART OF THE JA IPURIA GROUP INSOFAR AS THESE DOCUMENTS ARE CONCERNED. 15. SECONDLY WE MAY ALSO OBSERVE THAT THE FINDING OF PHOTOCOPIES IN THE POSSESSION OF A SEARCHED PERSON DOES NOT NECESSARILY MEAN AND IMPLY THAT THEY 'BELONG' TO TH E PERSON WHO HOLDS THE ORIGINALS. POSSESSION OF DOCUMENTS AN D POSSESSION OF PHOTOCOPIES OF DOCUMENTS ARE TWO SEPA RATE THINGS. WHILE THE JAIPURIA GROUP MAY BE THE OWNER O F THE PHOTOCOPIES OF THE DOCUMENTS IT IS QUITE POSSIBLE T HAT 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 SEAR CHED PERSON THE QUESTION OF INVOKING SECTION 153C OF THE SAID A CT DOES NOT ARISE. 16. THIRDLY WE WOULD ALSO LIKE TO MAKE IT CLEAR TH AT THE ASSESSING OFFICERS SHOULD NOT CONFUSE THE EXPRESSIO N 'BELONGS TO' WITH THE EXPRESSIONS 'RELATES TO' OR 'REFERS TO '. A REGISTERED SALE DEED FOR EXAMPLE 'BELONGS TO' THE PURCHASER OF THE PROPERTY ALTHOUGH IT OBVIOUSLY 'RELATES TO' OR 'REF ERS TO' THE ITA NOS.4297 TO 4302/DEL./2014 24 VENDOR. IN THIS EXAMPLE IF THE PURCHASERS PREMISES ARE SEARCHED AND THE REGISTERED SALE DEED IS SEIZED IT CANNOT B E SAID THAT IT 'BELONGS TO' THE VENDOR JUST BECAUSE HIS NAME IS ME NTIONED IN THE DOCUMENT. IN THE CONVERSE CASE IF THE VENDORS 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 HE (THE PURCHASER) HOLDS THE ORIG INAL SALE DEED. IN THIS LIGHT IT IS OBVIOUS THAT NONE OF THE THREE SETS OF DOCUMENTS - COPIES OF PREFERENCE SHARES UNSIGNED L EAVES OF CHEQUE BOOKS AND THE COPY OF THE SUPPLY AND LOAN AG REEMENT - CAN BE SAID TO 'BELONG TO' THE PETITIONER. 17. IN VIEW OF THE FOREGOING DISCUSSION WE DO NOT FIND THAT THE INGREDIENTS OF SECTION 153C OF THE SAID ACT HAV E BEEN SATISFIED IN THIS CASE. CONSEQUENTLY THE NOTICES DA TED 02.08.2013 ISSUED UNDER SECTION 153C OF THE SAID AC T ARE QUASHED. ACCORDINGLY ALL PROCEEDINGS PURSUANT THERE TO STAND QUASHED. 18. THE WRIT PETITIONS ARE ALLOWED AS ABOVE. THERE SHALL BE NO ORDERS AS TO COSTS. 18. IN THE LIGHT OF THE CASE LAWS CITED ABOVE AND O N A READING OF SECTION 153A AND 153C THE EXERCISE THAT IS REQUIRED TO BE D ONE BY THE AO HAS BEEN SPELT OUT BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DSL PROPERTIES PVT. LTD. VS. DCIT 33 TAXMAN.COM 420 VID E PARA 15 HAS HELD THAT IF THE ASSESSING OFFICER IS ASSESSING THE PERS ON SEARCHED AS WELL AS OTHER PERSON WHOSE ASSETS BOOKS OF ACCOUNT OR DOCU MENTS WERE FOUND AT THE TIME OF SEARCH THEN ALSO FIRST WHILE MAKING T HE ASSESSMENT IN THE CASE OF THE PERSON SEARCHED HE HAS TO RECORD THE SATISF ACTION THAT THE MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT OR DOCUMENTS BELONGED TO THE PERSON OTHER THAN THE PER SON SEARCHED. THEN THE ITA NOS.4297 TO 4302/DEL./2014 25 COPY OF THIS SATISFACTION NOTE IS TO BE PLACED IN T HE FILE OF SUCH OTHER PERSON AND THE RELEVANT DOCUMENT SHOULD ALSO BE TRANSFERRE D FROM THE FILE OF THE PERSON SEARCHED TO THE FILE OF SUCH OTHER PERSON. T HEREAFTER IN THE CAPACITY OF THE ASSESSING OFFICER OF SUCH OTHER PERSON HE H AS TO ISSUE THE NOTICE U/S 153A READ WITH SECTION 153C. THE ASSESSING OFFICER OF THE SEARCHED PERSON AND SUCH OTHER PERSON MAY BE THE SAME BUT TH ESE ARE TWO DIFFERENT ASSESSEES AND THEREFORE THE ASSESSING OFFICER HAS T O CARRY OUT THE DUAL EXERCISE FIRST AS THE ASSESSING OFFICER OF THE PERS ON SEARCHED IN WHICH HE HAS TO RECORD THE SATISFACTION DURING THE COURSE O F ASSESSMENT ORDER PROCEEDINGS OF THE PERSON SEARCHED. WE CONCUR WITH THE SAID VIEW OF THE COORDINATE BENCH AND WOULD LIKE TO ADD THAT THIS SA TISFACTION MUST BE AN OBJECTIVE SATISFACTION BASED ON AN ENQUIRY BY THE A O TO ESTABLISH THAT THE DOCUMENTS REFERRED TO IN SECTION 153C WHICH IS FOUN D DURING THE SEARCH U/S. 132 WHICH ARE SEIZED OR REQUISITIONED BELONGS TO A PERSON OTHER THAN THE PERSON SEARCHED; AND THERE SHOULD BE A CLEAR FI NDING TO THAT EFFECT BASED ON WHICH ONLY SATISFACTION AS ENVISAGED U/S. 153C C AN BE INFERRED. SUCH A FINDING BY THE AO IS REQUIRED FOR ATTAINING THE SAI D SATISFACTION AND THEN IT SHOULD BE RECORDED IN THE FILE OF THE ASSESSEE WHIC H IS A SINE-QUA-NON TO TRIGGER THE JURISDICTION FOR THE AO TO PROCEED AGAI NST SUCH OTHER PERSON. IN THIS CASE THIS EXERCISE OF RECORDING THE SATISFACTI ON DURING THE ASSESSMENT PROCEEDINGS OF THE PERSON SEARCHED HAS NOT BEEN CAR RIED OUT AND THE SATISFACTION DOES NOT SATISFY THE REQUIREMENT OF SE CTION 153C. ON THE SAME ITA NOS.4297 TO 4302/DEL./2014 26 DATE I.E. 23.7.2010 SIMILAR SATISFACTION NOTE ONL Y WITH THE CHANGE IN THE NAME OF THE ASSESSEES HAS BEEN ISSUED ARBITRARILY WHICH DOES NOT IN ANY MANNER SATISFY THE REQUIREMENT OF SECTION 153C OF T HE I.T. ACT. WE COULD NOT FIND ANY MENTION OF ANY SEIZED MATERIALS LIKE V ALUABLE ARTICLES OR THINGS OR ANY BOOKS OF ACCOUNT OR DOCUMENTS HAVE BEEN REFE RRED EVEN IN THE IMPUGNED ASSESSMENT ORDERS. THE AO LACKS JURISDICTI ON TO INITIATE PROCEEDINGS U/S. 153C AGAINST THE ASSESSEE AND THER EFORE THE ISSUANCE OF NOTICE ITSELF IS NULL AND VOID AND THEREFORE QUASHE D. CONSEQUENTLY THE IMPUGNED ASSESSMENT ORDER PASSED U/S. 153C IS ALSO A NULLITY. 19. SINCE WE HAVE QUASHED THE NOTICE U/S 153C OF TH E ACT ITSELF THE OTHER GROUNDS ARE NOT ADJUDICATED BEING ACADEMIC. 20. AS THE FACTS AND CIRCUMSTANCES IN THE CASE OF T HE ASSESSEE IN OTHER FIVE ASSESSMENT YEARS I.E. 2004-05 TO 2008-09 ARE S IMILAR TO ASSESSMENT YEAR 2003-04 WE ORDER THAT THE IMPUGNED ASSESSMENT ORDERS PASSED U/S 153C IN ASSESSMENT YEARS 2004-05 TO 2008-09 ARE ALS O A NULLITY. 21. BEFORE WE PART WITH THIS ORDER WE WERE WONDERI NG WHETHER DURING SEARCH REVENUE AUTHORITIES CAN RESORT TO CARTE-BLANCHE SEIZURE OF ANYTHING AND EVERYTHING FROM THE PREMISES OF THE RAIDED PART Y WITHOUT THE SAID DOCUMENTS HAVING ANY BEARING IN ASSESSMENT OF INCOM E AS PER LAW. IT SHOULD BE REMEMBERED THAT ANY EXERCISE OF POWER UND ER SECTION 153C HAS CATASTROPHIC EFFECT ON THE PARTY AGAINST WHOM PROCE EDINGS ARE REOPENED FOR SCRUTINY FOR SIX ASSESSMENT YEARS. SO THE RAIDING PARTY HAS TO APPLY ITS ITA NOS.4297 TO 4302/DEL./2014 27 MIND AT LEAST TO PRIMA FACIE SATISFY THEMSELVES THA T THE DOCUMENTS SEIZED HAVE A NEXUS WITH INCOME. ANY ARBITRARY EXERCISE O F POWER WHICH IS UNBRIDLED IS A SWORN ENEMY OF THE ARTICLE 14 OF THE CONSTITUTION AND SUCH EXERCISE OF POWER WOULD OFFEND THE RIGHT TO PRIVACY GUARANTEED AND WHICH IS A FUNDAMENTAL RIGHT ENSHRINED IN PART III OF THE CONSTITUTION. THEREFORE THE OFFICERS CONDUCTING THE SEARCH WHILE SEIZING TH E DOCUMENTS HAS TO EXERCISE THE SAID POWERS WITH EXTREME CARE AND CAUT ION ; AND SEIZURE MUST BE USED WITH CIRCUMSPECTION. THE HONBLE APEX COUR T AND THE HONBLE DELHI HIGH COURT IN N.K. TEXTILE MILLS VS CIT (196 6) 61 ITR 58 HAS FROWNED UPON THE PRACTICE OF INDISCRIMINATE SEIZURE PAVING WAY FOR REOPENING OF ASSESSMENTS WHICH FINALLY WILL FALL IN CASE IT IS NOT INCRIMINATING AND WILL BE AN EXERCISE OF FUTILITY. 22. IN THE RESULT ALL THE APPEALS PREFERRED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF JULY 2015. SD/- SD/- (R.S. SYAL) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 31 ST DAY OF JULY 2015 TS ITA NOS.4297 TO 4302/DEL./2014 28 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.