|CORAM:||Diva Singh (JM), T. S. Kapoor (AM)|
|CATCH WORDS:||Search assessment|
|DATE:||November 28, 2014 (Date of pronouncement)|
|DATE:||December 1, 2014 (Date of publication)|
|AY:||2003-04 to 2008-09|
|FILE:||Click here to download the file in pdf format|
|S. 153C: Whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the AO to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else based on cogent material|
On a plain reading of Section 153C, it is evident that the
Assessing Officer of the searched person must be “satisfied” that inter alia any document seized or requisitioned “belongs to” a person other than the searched person. It is only then that the Assessing Officer of the search person can handover such document to the Assessing Officer having jurisdiction over such other person (other than the searched person). Furthermore, it is only after such handing over that the Assessing Officer of such other person can issue a notice to that person and assess or re-assess his income in accordance with the provisions of Section 153A. Therefore, before a notice under Section 153C can be issued two steps have to be taken. The first step is that the Assessing Officer of the person who is searched must arrive at a clear satisfaction that a document seized from him does not belong to him but to some other person. The second step is – after such satisfaction is arrived at – that the document is handed over to the Assessing Officer of the person to whom the said document “belongs”. In the present cases it has been urged on behalf of the petitioner that the first step itself has not been fulfilled. For this purpose it would be necessary to examine the provisions of presumptions as indicated above. Section 132( 4A)(i) clearly stipulates that when inter alia any document is found in the possession or control of any person in the course of a search it may be presumed that such document belongs to such person. It is similarly provided in Section 292C(1)(i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or “satisfaction” that the document in fact belongs to somebody else. There must be some cogent material
available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of “satisfaction” (Pepsi Foods P. Ltd. Vs ACIT (Del HC) followed, Dr. K M Mehboob Vs DCIT 76 DTR (Ker) 449 not followed)
ITAT is to see right facts, it is not concerned with revenue or assessee but is concerned with right position , even if section is wrong, that way it is body under ministry of law but certainly not a body under ministry of finance, so the order passed by the tribunal is right;
by using sec 255 (3) of Income tax Act 1961 is non est position so ITAT need not obey the Income tax Act 1961 as for as what it shd do and what it shd not do?
under 1922 Act ITAT was a quasi judicial body under income tax dept then so it was to work under that 1922 Act today ITAT is under ministry of law, besides its formation is per 1985 administrative tribunals Act born out of constitutional amendment to act as a support system to courts.
it is surely independent of ministry of finance and so not amenable to CBDT circulars of any kind but CBDT circulars and mandatory to department of Revenue, that one need to understand.
so the judgement is right.
ITAT members say judicial if delivered real sensible judgments may become a judge at high court but not quasi judicial tribunal, that is the import.. no point in crying wolf