IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD [CONDUCTED THROUGH VIRTUAL AT AHMEDABAD] BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER& MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.(SS)A. NO. 130/AHD/2018 (ASSESSMENT YEAR: 2011-12) DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1(4), AHMEDABAD, ROOM NO. 302, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD VS. SMT. SONAL D. VORA 2 ND FLOOR, H. N. HOUSE, NR. GUJARAT HIGH COURT, RAILWAY CROSSING, NAVRANGPURA, AHMEDABAD-380009 [PAN NO. AAPOV7209G] ( APPELLANT ) .. ( RESPONDENT ) C.O. NO. 105/AHD/2019 (ASSESSMENT YEAR: 2011-12) SMT. SONAL D. VORA 2 ND FLOOR, H. N. HOUSE, NR. HIGH COURT, RAILWAY CROSSING, NAVRANGPURA, AHMEDABAD VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- 1(4), AHMEDABAD, ROOM NO. 302, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD [PAN NO. AAWPV2756N] ( APPELLANT ) .. ( RESPONDENT ) I.T.(SS)A. NO. 135/AHD/2018 (ASSESSMENT YEAR: 2011-12) DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1(4), AHMEDABAD, ROOM NO. 302, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD VS. SMT. NIRUBEN VITHALBHAI PATEL 12 SECTION-2, KALHAR BUNGLOWS, SHILAJ, AHMEDABAD [PAN NO. AGXPP1566F] ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY : SHRI RITESH PARMAR & R. R. MAKWANA, CIT DR ASSESSEE BY : SHRI S. N. SOPARKAR, SR. ADV. WITH PARIN SHAH IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 2 - DATE OF HEARING 06.05.2021 DATE OF PRONOUNCEMENT 25.06.2021 O R D E R PER MS. MADHUMITA ROY - JM: BOTH THE APPEALS BEING NOS. IT(SS)A130/AHD/2018 & IT(SS)A NO. 135/AHD/2018 FILED BY THE REVENUE AND THE C.O. BEING NO. 105/AHD/2019 FILED BY THE ASSESSEE ARE DIRECTED AGA INST ORDERS DATED 12.03.2018 PASSED BY THE LD. CIT(A)-11, AHMEDABAD A RISING OUT OF THE ORDER DATED 30.03.2016 PASSED BY THE LD. DCIT, CENT RAL CIRCLE-1(4), AHMEDABAD PASSED UNDER SECTION 143(3) R.W.S. 153A O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FO R THE ASSESSMENT YEAR (A.Y.) 2011-12. SINCE ALL THE MATTERS RELATE TO CO MMON SEARCH PROCEEDING AND ISSUES INVOLVED THEREIN ARE COMMON IN NATURE, T HESE ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER FOR THE SAKE OF CONVENIENCE. IT(SS)A NO. 130/AHD/2018 (A.Y. 2011-12):- 2. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LD. SENIOR COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ISSUES INVOLVED IN THIS PARTICULAR CASE HAVE ALREADY BEEN DECIDED IN F AVOUR OF THE ASSESSEE IN THE APPEAL PREFERRED BY THE REVENUE IN IT(SS)A NO. 179/AHD/2019 IN THE CASE OF DCIT VS. SMT. SONAL UDAY VORA AND IN C.O. N O. 107/AHD/2019 IN THE CASE OF SMT. SONAL UDAY VORA VS. DCIT FOR THE A .Y. 2011-12. THE LD. DR THOUGH RELIED UPON THE ORDER PASSED BY THE LD. A O THE CONTENTION MADE BY THE LD. SENIOR COUNSEL AS MENTIONED HEREINABOVE HAS NOT BEEN ABLE TO CONTROVERT. IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 3 - THE MAINTAINABILITY OF SUCH REASSESSMENT PROCEEDIN G UNDER SECTION 143 R.W.S. 153A OF THE ACT WAS ALSO RAISED BEFORE U S ON THIS COUNT THAT THE ASSESSEE HEREIN HAS FILED HER ORIGINAL RETURN OF IN COME ON 28.09.2011 AND THE TIME LIMIT OF ISSUANCE OF NOTICE UNDER SECTION 143(2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE HAD ALREADY EXPIRED. THE REFORE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL THE COMPLETE ASSESSMENT CANNOT BE REASSESSED AS OF MAIN ARGUMENT ADVANCED BY THE LD. AR. IN FACT, THE LD. AR RELIED UPON THE ORDER PASSED BY THIS LD. TRIBUNAL DATED 08.12.2 020 IN THE MATTER OF DCIT VS. SMT. SONAL UDAY VORA IN IT(SS)A NO. 179/AH D/2018 AND C.O. NO. 107/AHD/2019 FOR A.Y. 2011-12 IN SUPPORT OF HIS ARGUMENT FURTHER SUPPORTING THE ORDER PASSED BY THE LD. CIT(A) IN FA VOUR OF THE ASSESSEE WHEREBY AND WHEREUNDER THE IMPUGNED ADDITION TO THE TUNE OF RS. 12,41,24,932/- AS BOGUS EXEMPT LONG-TERM CAPITAL GA IN ON SALE OF SHARES OF M/S. CHANDANI TEXTILE & ENGINEERING LTD. MADE BY TH E LD. AO HAS BEEN DELETED. 3. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE E VIDENCES FOUND DURING SEARCH REVEALED THAT SHARES OF CHANDINI TEXT ILES & ENGINEERING LTD. WERE MANAGED TO PROVIDE EXEMPT LONG TERM CAPITAL GA IN. THE E-DATA SEIZED CONTAINED ONE DV SHEET; THE DATA OF SALE AND PURC HASE OF SHARES OF M/S. CHANDINI TEXTILE & ENGINEERING LTD. WHEREIN THE ENT RIES HAVE BEEN RECORDED FOR THE PERIOD FROM 27.01.2011 TO 06.04.20 11. STATEMENT OF ONE SHRI DAMODAR ATTAL, THE KEY EMPLOYEE OF SHIRISH SHA H WAS RECORDED UNDER SECTION 133A OF THE ACT ON 09.04.2013 DURING THE CO URSE OF SURVEY WHERE HE DEPOSED THAT HE HANDLED TRADING IN SHARES ON BOL T FROM HIS OFFICE AT THE INSTRUCTION OF SHRI SHIRISH CHANDRAKANT SHAH AND TH E LIST OF 143 COMPANIES IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 4 - WAS ALSO PROVIDED BY HIM WHERE SHARE TRADING WERE B EING DONE ON INSTRUCTION OF THE SAID SHRI SHAH. IT WAS FURTHER STATED BY HIM THAT THESE COMPANIES ARE BOGUS COMPANIES FORMED FOR THE PURPOS E OF EXECUTING TRADES THROUGH SYNCHRONIZED TRADING AT THE BEHEST OF SHRI SHAH. FURTHER THAT THE DIRECTORS OF THESE COMPANIES ARE DUMMY AND THE ENTI RE ACTIVITIES OF THESE COMPANIES ARE BEING MANAGED BY SHRI SHAH. THE LD. DR FURTHER RELIED UPON THE ORDER PASSED BY THE LD. AO. 4. WE HAVE HEARD THE RIVAL SUBMISSION MADE BY THE R ESPECTIVE PARTIES, WE HAVE ALSO CAREFULLY CONSIDERED THE FACTS AND CIR CUMSTANCES OF THE CASE, THE OBSERVATION MADE BY THE LD. AO, THE SUBMISSION MADE BY THE ASSESSEE, THE MATERIALS AVAILABLE ON RECORD AND THE RELEVANT JUDICIAL PRONOUNCEMENTS ON THIS SUBJECT. 5. SINCE THE ASSESSEE BELONGS TO THE H. N. SAFAL GR OUP CONSEQUENTIAL TO SEARCH ASSESSMENT PROCEEDING UNDER SECTION 153A OF THE ACT WAS INITIATED FOR A.Y. 2008-09 TO 2013-14. NOTICE UNDER SECTION 153A OF THE ACT WAS ACCORDINGLY ISSUED ON 26.11.2014. THE ASSESSEE IN RESPONSE THEREOF FILED HER RETURN OF INCOME ON 09.01.2015. 6. THE ASSESSEE HAD CLAIMED EXEMPT LONG-TERM CAPITA L GAIN UNDER SECTION 10(38) OF THE ACT TO THE TUNE OF RS. 12,41, 24,932/-. 7. REVENUES CASE IS THIS THAT SUCH FUNDS WERE ROUT ED TO THE BENEFICIARIES IN THE GUISE OF SHARE CAPITAL, SHARE PREMIUMS AND U NSECURED LOANS. SUCH ALLEGED MANAGED EXEMPT CAPITAL GAIN PURCHASED IN LI EU OF CASH HAD BEEN TREATED AS INCOME FROM UNACCOUNTED SOURCE AND ADDED TO THE TOTAL INCOME OF IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 5 - THE ASSESSEE BY THE LD. ASSESSING OFFICER. THE SAM E WAS, IN TURN, DELETED BY THE LD. CIT(A). HENCE, THE INSTANT APPEAL BEFOR E US. 8. IN THIS ASPECT WE HAVE CONSIDERED THE JUDGMENT P ASSED BY THE LD. TRIBUNAL IN IT(SS)A NO. 179/AHD/2018 & C.O. NO. 107 /AHD/2019 AS HAS BEEN RELIED UPON BY THE LD. AR. WHILE DEALING WITH ISSUE THE LD. TRIBUNAL HAS BEEN PLEASED TO OBSERVE AS FOLLOWS:- 7. IN ORDER TO DECIDE THE ISSUE AS TO WHETHER IN T HE ABSENCE OF ANY INCRIMINATING MATERIAL THE COMPLETED ASSESSMENT CAN BE REITERATED , WE WOULD LIKE TO CONSIDER THE RELEVANT STATUTORY PROVISION ON THIS ASPECT. THE P ROVISION OF SECTION 153A DEALS WITH THE ISSUE IN HAND STATES AS FOLLOWS:- '153A. NOTWITHSTANDING ANYTHING CONTAINED IN SECTI ON 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 3LST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF IN COME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED A ND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS I F SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS [SUB-SECTION] PENDING ON THE DATE OF INITIA TION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE: [PROVIDED ALSO THAT THE CENTRAL GOVERNMENT MAY BY R ULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 6 - CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHA LL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOM E FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE.] 1(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APP EAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINE D IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATIN G TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SE CTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFE CT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPE CT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR.' THUS, IT APPEARS THAT THE RELEVANT PROVISION REVEA LS THAT PENDING ASSESSMENT ON THE DATE OF SEARCH IN RESPECT OF PRECEDING SIX A SSESSMENT YEARS ABATE AS PER THE SECOND PROVISO. BUT THE SAME DOES NOT INCLUDE THOS E ASSESSMENTS WHICH HAVE ALREADY ATTAINED FINALITY OR WHEREIN THE ASSESSMENT ORDERS HAVE ALREADY BEEN PASSED. WHEN PENDING ASSESSMENT ABATE IN CASE OF A SEARCH, THE A O RETAINS THE ORIGINAL JURISDICTION AS WELL AS THE ONE CONFERRED UPON HIM UNDER SECTION 153A OF THE ACT FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF SIX ASSESSMEN T YEARS SEPARATELY. IN CASE OF NON-ABATED ASSESSMENT I.E. THE ASSESSMENT WHICH ARE NOT PENDING IN TERMS OF SAID SECOND PROVISO, THE ASSESSMENT THEREIN UNDER SECTIO N 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND IN THE COURSE OF SE ARCH AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN COURSE OF SEARCH. IN THE AB SENCE OF ANY INCRIMINATING MATERIAL THE COMPLETED ASSESSMENT CANNOT BE REASSES SED TO MAKE ADDITION. 8. IN THIS REGARD, WE HAVE CONSIDERED THE JUDGMENT RELIED UPON BY THE LD. AR IN SUPPORT OF HIS CASE PASSED BY THE HONBLE DELHI HIG H COURT IN THE CASE OF CIT (CENTRAL)-III VS. KABUL CHAWLA REPORTED IN [2015] 6 1 TAXMANN.COM 412 (DELHI) RELEVANT PORTION WHEREOF IS AS FOLLOWS:- ON A CONSPECTUS OF SECTION 153A(1), READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN VARIOUS DECISIONS , THE LEGAL POSITION THAT EMERGES IS AS UNDER: IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 7 - ONCE A SEARCH TAKES PLACE UNDER SECTION 132, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SE ARCHED REQUIRING HIM TO FILE RETURNS FOR SIX ASSESSMENT YEARS IMMEDIATELY P RECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH ASSESSMENT YEARS W ILL HAVE TO BE COMPUTED BY THE ASSESSING OFFICERS AS A FRESH EXERCISE. THE ASSESSING OFFICER WILL EXERCISE NORMAL ASSESSME NT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT ASSESSMENT Y EAR IN WHICH THE SEARCH TAKES PLACE. THE ASSESSING OFFICER HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME1 OF THE AFOREMENTIONED SIX YEARS IN S EPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WIL L BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEAR S 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX'. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS S HOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSIN G OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THA T THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE, SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE C OMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESS MENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABLE TO ABATE D PROCEEDINGS (I.E., THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REA SSESS' TO COMPLETE ASSESSMENT PROCEEDINGS. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH ASSESSMENT YEAR ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTH ER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE ASSESSING OFFICER. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON TH E BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISC OVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCL OSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. (PARA 37] THE PRESENT APPEALS CONCERN ASSESSMENT YEARS 2002-0 3, 2005-06 AND 2006- 07. ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURIN G THE SEARCH, NO IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 8 - ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREAD Y ASSESSED. (PARA 38] THE REVENUE'S APPEALS ARE ACCORDINGLY DISMISSED. [P ARA 40] ' 9. WHILE DISCUSSING WITH THE POWER TO BE EXERCISED BY THE AO IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH THE HONBLE COURT IN THE SAID JUDGMENT FURTHER DISCUSSED THE FOLLOWING:- 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FR EE TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHILE MAKING ASSESS MENT UNDER SECTION 153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT O N THE GROUND THAT IT WAS 'NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISIO N' WHICH WAS IN THE CONTEXT OF SEARCH AND/OR REQUISITION. THE COURT ALS O EXPLAINED THE PURPORT OF THE WORDS 'ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER; '26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTA L INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSM ENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE W ORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSES S HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT A BATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INT ERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONL Y BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH OR REQUISITION OF DOCUMENTS.'' 10. THE ABOVE JUDGMENTS DECIDED THE ISSUE TO THIS E FFECT THAT SOME INCRIMINATING MATERIAL UNEARTH DURING THE COURSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALREADY DISCLOSED OR NOT MADE KNOWN IN COURSE OF ORIGINAL A SSESSMENT ONLY EMPOWERS THE ASSESSMENT OFFICER TO REASSESS. 11. WE HAVE FURTHER CONSIDERED THE JUDGMENT PASSED IN THE MATTER OF LD. CIT VS. SAUMYA CONSTRUCTION PVT. LTD. TAX APPEAL NO. 24 OF 2016 PASSED BY THE JURISDICTIONAL HIGH COURT. WHILE DISCUSSING THE IS SUE THE HONBLE COURT HAS BEEN PLEASED TO OBSERVE AS FOLLOWS:- (I) THE DECISION OF HON'BLE GUJARAT HIGH COURT IN CASE OF CIT VS. SAUMYA CONSTRUCTION PVT. LTD (TAX APPEAL NO. 24 OF 2016) DATED 14TH MARCH 2016, THE FACTS AND FINDINGS OF WHICH ARE RES TATED AS UNDER: '18. IN THIS CASE, IT IS NOT THE CASE OF THE APPELL ANT THAT ANY INCRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CO NSIDERATION WAS FOUND DURING THE COURSE OF SEARCH. AT THE RELEVANT TIME W HEN THE NOTICE CAME TO BE IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 9 - ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSEE FILED ITS RETURN OF INCOME. MUCH LATER, AT THE FAG END OF THE PERIOD WITHIN WHI CH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE MADE, IN OTHER WORDS, WHE N THE LIMIT FOR FRAMING THE ASSESSMENT AS PROVIDED UNDER SECTION 153 WAS AB OUT TO EXPIRE, THE NOTICE HAS BEEN ISSUED IN THE PRESENT CASE SEEKING TO MAKE THE PROPOSED ADDITION OF RS.11,05,51,000/- ON THE BASIS OF THE MATERIAL WHIC H WAS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEME NT OF ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIKE THE PRESENT O NE, WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER AND NO ASSESSMENT OR REASSESSME NT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR M AKING OF REQUISITION UNDER SECTION 132A, WHILE COMPUTING THE TOTAL INCOME OF T HE ASSESSEE UNDER SECTION 153A OF THE ACT, ADDITIONS OR DISALLOWANCES CAN BE MADE ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR REQUISITION. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT NO IN CRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, HOWEVER, IT IS O N THE BASIS OF SOME MATERIAL COLLECTED BY THE ASSESSING OFFICER MUCH SU BSEQUENT TO THE SEARCH, THAT THE IMPUGNED ADDITIONS CAME TO BE MADE. 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING TH AT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS F OUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN R ESPECT OF ALL THE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS, THE ASSESSMENT IN RE SPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSM ENT. UNDER SECTION 153A OF THE ACT, AN ASSESSMENT HAS TO BE MADE IN RELATIO N TO THE SEARCH OR REQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLO SED DURING THE SEARCH OR REQUISITION. IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE I N RELATION TO THAT ASSESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COMPLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJ ASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA), JODHPUR V. ASSISTANT COMMISSIONER OF INCOME TAX (SUPRA). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF COMMISSIO NER OF INCOME-TAX-1 V. JAYABEN RATILAL SORATHIA (SUPRA) WHEREIN IT HAS BEE N HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDERING SECTION 153A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RE SPECT TO SIX PRECEDING YEARS; HOWEVER, THERE MUST BE SOME INCRIMINATING MA TERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRAN SACTIONS IN THE PARTICULAR ASSESSMENT YEAR. 20. FOR THE FOREGOING REASONS, IT IS NOT POSSIBLE T O STATE THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM ANY LEGAL INFIRMITY SO AS TO GIVE RISE TO A QUESTION OF LAW, MUCH LESS, A SUB STANTIAL QUESTION OF LAW, WARRANTING INTERFERENCE. IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 10 - THE APPEAL, THEREFORE, FAILS AND IS, ACCORDINGLY, DISMISSED. THUS, IT IS HELD THAT IF IN RELATION TO ANY ASSESS MENT YEAR, NO INCRIMINATING MATERIAL IS FOUND NO ADDITION OR DISALLOWANCE CAN B E MADE IN RESPECT TO THAT ASSESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. 12. WE HAVE FURTHER CONSIDERED THE PARTICULAR FACT OF NON-FINDING OF INCRIMINATING MATERIAL AT THE PREMISES OF THE ASSES SEE DURING SEARCH PROCEEDING AS SUBMITTED BY THE LD. AR. THE PROVISION OF SECTION 153A CANNOT BE MADE APPLICABLE IF THE INCRIMINATING MATERIAL IS NOT FOUND AT THE TIME OF SEARCH PROCEEDING. NEITHER ADDITION UNDER SECTION 153A IS PERMISSIBLE ON THE B ASIS OF INCRIMINATING MATERIAL FOUND FROM THE PLACE OF THIRD PERSON OR AFTER COMPL ETION OF SEARCH PROCEEDING AS ALSO THE CASE MADE OUT BY THE APPELLANT BEFORE US. THIS PARTICULAR ASPECT HAS ALSO BEEN TAKEN CARE OF BY THE LD. CIT(A) AS WE FOUND FROM TH E ORDER IMPUGNED. HE HAS FURTHER RELIED UPON THE JUDGMENT PASSED BY THE JURI SDICTIONAL HIGH COURT IN THE CASE OF PCIT VS. SUNRISE FINLEASE PVT. LTD. REPORTED IN 89 TAXMANN.COM 1 (GUJ.) AND THE JUDGMENT PASSED BY THE HONBBLE TRIBUNAL, CALCUTTA BENCH IN THE CASE OF KRISHNA KUMAR SINGHANIA VS. DCIT, REPORTED IN 88 TAXMANN.CO M 259(2017)(KOL TRIB.). 13. WE HAVE FURTHER CONSIDERED THE SAID JUDGMENT PA SSED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF PCIT VS. SUNRISE FINLEASE PVT. LTD. REPORTED IN 89 TAXMANN.COM 1. THE RELEVANT PORTION WHEREOF IS AS FOLLOWS:- SECTION 153A OF THE INCOME-TAX ACT, 1961 SEARCH AND SEIZURE ASSESSMENT IN CASE OF (CONDITION PRECEDENT) ASSES SMENT YEAR 2007-08 WHETHER WHERE NO INCRIMINATING EVIDENCE AGAINST ASS ESSEE WAS FOUND DURING COURSE OF SEARCH SO AS TO ATTRACT PROVISIONS OF SEC TION 153A PROCEEDINGS, NO ADDITIONS COULD BE MADE ON BASIS OF MATERIAL COLLEC TED AFTER SEARCH HELD, YES WHETHER SINCE NO INCRIMINATING EVIDENCE AGAIN ST ASSESSEE WAS FOUND OR SEIZED DURING COURSE OF SEARCH SO AS TO ATTRACT PRO VISIONS OF SECTION 153A PROCEEDINGS, NO ADDITIONS COULD BE MADE ON BASIS OF STATEMENT OF DIRECTOR OF ASSESSEE COMPANY WHICH WAS RECORDED. THUS IT APPEARS FROM THE ABOVE JUDGMENT THAT THE T RIBUNAL HAS RECORDED THE PARTICULAR FINDING OF FACT THAT NO INCRIMINATING MA TERIAL WAS FOUND DURING THE COURSE OF THE SEARCH PROCEEDINGS AND THAT THE STATEMENT OF THE DIRECTOR WHICH WAS STATED TO HAVE BEEN RECORDED DURING THE COURSE OF SEARCH UNDE R SECTION 131 OF THE ACT, AND WHICH FORMS THE BASIS FOR THE IMPUGNED ADDITION, WA S RECORDED MUCH LATER ON 07.12.2009. FOLLOWING THE DECISION OF SAUMYA CONST RUCTION PVT. LIMITED THE HONBLE COURT HELD THAT IT WAS NOT PERMISSIBLE FOR THE ASSESSING OFFICER TO MAKE ANY ADDITION UNDER SECTION 153A OF THE ACT WHEN NO INCR IMINATING MATERIAL HAD BEEN FOUND DURING THE COURSE OF THE SEARCH. IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 11 - 14. IN THE CASE OF KRISHNA KUMAR SINGHANIA VS. DCIT REPORTED IN 88 TAXMANN.COM 259(2017) THE ITAT CALCUTTA BENCH HAS B EEN PLEASED OBSERVED AS FOLLOWS IN THE IDENTICAL ISSUE:- 'IT WAS NOT IN DISPUTE THAT THERE WERE NO DOCUMENT S THAT WERE SEIZED FROM THE PREMISES OF THE ASSESSEE EXCEPT LOOSE SHEETS VI DE SEIZED DOCUMENT FOR WHICH SATISFACTORY EXPLANATION HAD BEEN GIVEN BY TH E ASSESSEE AND NO ADDITION WAS MADE BY THE ASSESSING OFFICER ON THIS SEIZED DOCUMENT. THE SEIZED DOCUMENT USED BY THE ASSESSING OFFICER FOR M AKING THE ADDITION IN SECTION 153A ASSESSMENT WERE SEIZED ONLY FROM THE O FFICE PREMISES OF 'C GROUP OF COMPANIES IN WHICH ASSESSEE WAS A DIRECTOR . IN THIS REGARD, IT WOULD BE PERTINENT TO NOTE THAT AS PER SECTION 292C, THER E IS A PRESUMPTION THAT THE DOCUMENTS, ASSETS, BOOKS OF ACCOUNT ETC. FOUND AT T HE TIME OF SEARCH IN THE PREMISES OF A PERSON IS ALWAYS PRESUMED TO BE BELON GING TO HIM/THEM UNLESS PROVED OTHERWISE. THIS GOES TO PROVE THAT THE PRESU MPTION DERIVED IS A REBUTTABLE PRESUMPTION. THEN IN SUCH A SCENARIO, TH E PERSON ON WHOM PRESUMPTION IS DRAWN, HAS GOT EVERY RIGHT TO STATE THAT THE SAID DOCUMENTS DOES NOT BELONG TO HIM/THEM. THE ASSESSING OFFICER IF HE IS SATISFIED WITH SUCH EXPLANATION, HAS GOT RECOURSE TO PROCEED ON SU CH OTHER PERSON (I.E., THE PERSON TO WHOM THE SAID DOCUMENTS ACTUALLY BELONG T O) IN TERMS OF SECTION 153C BY RECORDING SATISFACTION TO THAT EFFECT BY WA Y OF TRANSFER OF THOSE MATERIALS TO THE ASSESSING OFFICER ASSESSING THE SU CH OTHER PERSON. THIS IS THE MANDATE PROVIDED IN SECTION 153C. IN THE PRESENT CA SE, IF AT ALL, THE SEIZED DOCUMENTS REFERRED TO IN IS STATED TO BE BELONGING TO ASSESSEE HEREIN, THEN THE ONLY LEGAL RECOURSE AVAILABLE TO THE DEPARTMENT IS TO PROCEED ON THE ASSESSEE HEREIN IN TERMS OF SECTION 153C. IN THIS R EGARD, ONE WOULD LIKE TO PLACE RELIANCE ON THE RECENT DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT V. PINAKI MISRA & SANGEETA MISRA [2017] 392 ITR 347, WHEREIN IT WAS HELD THAT, NO ADDITION COULD BE MADE ON THE BASIS O F EVIDENCE GATHERED FROM EXTRANEOUS SOURCE AND ON THE BASIS OF STATEMENT OR DOCUMENT RECEIVED SUBSEQUENT TO SEARCH. HENCE, THE SAID MATERIALS CAN NOT BE USED IN SECTION 153A AGAINST THE ASSESSEE. THIS OPINION IS GIVEN WI THOUT GOING INTO THE MERITS AND VERACITY OF THE SAID SEIZED DOCUMENTS IM PLICATING THE ASSESSEE HEREIN. [PARA 10] HENCE NOW THE ONLY ISSUE WHICH IS LEFT TO BE ADDRES SED IS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED UNDER SECTION 153A IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH, THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON THE DATE OF SEARCH. IT WAS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2009-10 WAS NOT SELECTED FOR SCRUTINY AND THE TIME LIMIT FOR ISSUANCE OF NOT ICE UNDER SECTION 143(2) HAD EXPIRED AND HENCE IT FALSE UNDER CONCLUDED PROC EEDING, AS ON THE DATE OF SEARCH. IT IS HELD THAT THE LEGISLATURE DOES NOT DI FFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED UNDER SECTION 14 3(1) OR 143(3) OR 147. HENCE UNLESS THERE WAS NO ANY INCRIMINATING MATERIA L FOUND DURING THE COURSE OF SEARCH RELATABLE TO CONCLUDE YEAR 2009-10 , THE STATUTE DOES NOT IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 12 - CONFER ANY POWER ON THE ASSESSING OFFICER TO DISTUR B THE FINDINGS GIVEN THEREON AND INCOME DETERMINED THEREON, AS FINALITY HAD ALREADY BEEN REACHED THEREON, AND SUCH PROCEEDING WAS NOT PENDIN G ON THE DATE OF SEARCH TO GET ITSELF ABATED. [PARA 10.1] THE PROVISIONS OF SECTION 132 RELIED UPON BY THE RE VENUE WOULD BE RELEVANT ONLY FOR THE PURPOSE OF CONDUCTING THE SEARCH ACTIO N AND INITIATING PROCEEDINGS UNDER SECTION 153A. ONCE THE PROCEEDING S UNDER SECTION 153A ARE INITIATED, WHICH ARE SPECIAL PROCEEDINGS, THE L EGISLATURE IN ITS WISDOM BIFURCATES DIFFERENTIAL TREATMENTS FOR ABATED ASSES SMENTS AND UNABATED ASSESSMENTS. AT THE COST OF REPETITION, IT WAS STAT ED THAT IN RESPECT OF ABATED ASSESSMENTS (I.E., PENDING PROCEEDINGS ON THE DATE OF SEARCH), FRESH ASSESSMENTS ARE TO BE FRAMED BY THE ASSESSING OFFIC ER UNDER SECTION 153A WHICH WOULD HAVE A BEARING ON THE DETERMINATION OF TOTAL INCOME BY CONSIDERING ALL THE ASPECTS, WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DOES NOT HAVE ANY RELEVANCE. HOWEVER, IN RESPECT OF UNABATED ASSESSMENTS, THE LEGISLATURE HAD CONFERRED POWERS ON THE ASSESSI NG OFFICER TO JUST FOLLOW THE ASSESSMENTS ALREADY CONCLUDED UNLESS THERE IS A N INCRIMINATING MATERIAL FOUND IN THE SEARCH TO DISTURB THE SAID CONCLUDED A SSESSMENT. THIS WOULD BE THE CORRECT UNDERSTANDING OF THE PROVISIONS OF SECT ION 153A, AS OTHERWISE, THE NECESSITY OF BIFURCATION OF ABATED AND UNABATED ASS ESSMENTS IN SECTION 153A WOULD BECOME REDUNDANT AND WOULD LOSE ITS RELEVANCE . HENCE, THE ARGUMENTS ADVANCED BY THE REVENUE IN THIS REGARD DESERVES TO BE DISMISSED, [PARA 10.7] IN VIEW OF THE AFORESAID FINDINGS AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, THE ASSESSMENT ALREADY DEEMED TO HAVE BEEN COMPLETED FOR THE ASSESSMENT YEAR 2009-10, WHI CH WAS UNABATED/CONCLUDED ASSESSMENT, ON THE DATE OF SEARC H, DESERVES TO BE UNDISTURBED IN THE ABSENCE OF ANY INCRIMINATING MAT ERIAL FOUND IN THE COURSE OF SEARCH AND, ACCORDINGLY, NO FRESH ADDITION COULD BE MADE THEREON WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH FROM THE PREMISES OF THE ASSESSEE. SINCE THE ISSUE IS ADDRESSED ON PRELIMINARY GROUND OF ABSENCE OF INCRIMINATING MATE RIALS, ONE REFRAINS TO GIVE FINDINGS ON THE MERITS OF THE ADDITIONS FOR TH E ASSESSMENT YEAR 2009-10. ACCORDINGLY, THE PRELIMINARY GROUND RAISED BY THE A SSESSEE IN THIS REGARD IS ALLOWED. [PARA 10.8] 15. THE LD. TRIBUNAL THUS HAS BEEN PLEASED TO OBSER VE THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND FROM THE PREMISES OF T HE ASSESSEE DURING THE COURSE OF SEARCH, ADDITION MADE BY THE AO UNDER SECTION 153A OF THE ACT IN UNWARRANTED AND THE SAME DESERVE TO BE DELETED. 16. AFTER TAKING INTO CONSIDERATION THE ENTIRE FACT S WE FIND THAT THE ADDITION HAS BEEN MADE BASED UPON THE SEARCH CARRIED OUT AT THE PREMISES OF SHIRISH C. SHAH AND DOCUMENTS FOUND DURING SUCH SEARCH. THUS, SUCH DOC UMENTS AS RELIED UPON BY THE LD. AO FOUND FROM THE PREMISES OF SHRI SHAH AND NOT FROM THE ASSESSEE ARE THE DUMB DOCUMENTS AND ADDITION ON SUCH BASIS IN THE GARB OF SECTION 153A IS NOT SUSTAINABLE IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 13 - IN THE EYE OF LAW. WE FURTHER NOTE THAT THE LOOSE PAPERS OR STATEMENT RECORDED DURING THE COURSE OF SEARCH/SURVEY AT SHRI SHAH AS ONLY RE LIED UPON; NO REFERENCE OF ANY SINGLE INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH AT APPELLANTS PREMISES HAS BEEN MADE BY THE LD. AO WHILE MAKING A DDITION UNDER SECTION 153A OF THE ACT. ON THIS ASPECT WE HAVE FURTHER CONSIDERED THE JUDG MENT PASSED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SA UMYA CONSTRUCTION PVT. LTD. (SUPRA). THE RELEVANT PORTION WHEREOF IS AS FOLLOW S:- 15. ON A PLAIN READING OF SECTION 153A OF THE ACT, IT IS EVIDENT THAT THE TRIGGER POINT FOR EXERCISE OF POWERS THEREUNDER IS A SEARCH UNDER SECTION 132 OR A REQUISITION UNDER SECTION 132A OF THE ACT. ON CE A SEARCH OR REQUISITION IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFIC ER TO ISSUE NOTICE UNDER SECTION 153A OF THE ACT TO THE PERSON, REQUIRING HI M TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MA DE AND ASSESS OR REASSESS THE SAME. SINCE THE ASSESSMENT UNDER SECTION 153A O F THE ACT IS LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS EVIDENT THAT THE OBJECT OF THE SECTION IS TO BRING TO TAX T HE UNDISCLOSED INCOME WHICH IS FOUND DURING THE COURSE OF OR PURSUANT TO THE SE ARCH OR REQUISITION. HOWEVER, INSTEAD OF THE EARLIER REGIME OF BLOCK ASS ESSMENT WHEREBY, IT WAS ONLY THE UNDISCLOSED INCOME OF THE BLOCK PERIOD THA T WAS ASSESSED, SECTION 153A OF THE ACT SEEKS TO ASSESSEE THE TOTAL INCOME FOR THE ASSESSMENT YEAR, WHICH IS CLEAR FROM THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTA L INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. THE SECOND PROVISO MAKES THE INTENTION OF THE LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO THE SIX ASSESSMENT YEARS REFERRED TO IN THE SUB-SECTION PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE. SUBSECTION (2) OF SECTION 153A OF THE ACT PROVIDES THAT IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSME NT MADE UNDER SUB- SECTION (1) IS ANNULLED IN APPEAL OR ANY OTHER LEGA L PROVISION, THEN THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSME NT YEAR WHICH HAD ABATED UNDER THE SECOND PROVISO WOULD STAND REVIVED . THE PROVISO THERETO SAYS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT I F SUCH ORDER OF ANNULMENT IS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR RE ASSESSMENT FAILING WITHIN THE SIX ASSESSMENT YEARS PRIOR TO THE SEARCH OR REQ UISITION STANDS ABATED AND THE TOTAL INCOME OF THE ASSESSEE IS REQUIRED TO BE DETERMINED UNDER SECTION 153A OF THE ACT. SIMILARLY, SUB- SECTION (2) PROVID ES FOR REVIVAL OF ANY ASSESSMENT OR REASSESSMENT WHICH STOOD ABATED, IF A NY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SECT ION 153A OF THE ACT IS ANNULLED IN APPEAL OR ANY OTHER PROCEEDING. IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 14 - 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN C ASE OF SEARCH OR REQUISITION'. IT IS WELL SETTLED AS HELD BY THE SUP REME COURT IN A CATENA OF DECISIONS THAT THE HEADING OF THE SECTION CAN BE RE GARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECT ION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLE AR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEAD ING OF SECTION 153, THE INTENTION OF THE LEGISLATURE IS CLEAR VIZ., TO PROV IDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF TH E PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOE S WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR RE QUISITION. IN OTHER WORDS, THE ASSESSMENT SHOULD BE CONNECTED WITH SOMETHING F OUND DURING THE SEARCH OR REQUISITION, VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-S ECTION (1) OF SECTION 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH O R REQUISITION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON T O FURNISH RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION OR DISALLOWANCE CAN BE MADE ONLY ON THE BASIS OF MATER IAL COLLECTED DURING THE SEARCH OR REQUISITION. IN CASE NO INCRIMINATING MAT ERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL ( INDIA) (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. IN CASE WHE RE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSM ENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE A SSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FUR NISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURIN G THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT U NDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AN D AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTI ON 153A OF THE ACT. 17. IN THE FACTS OF THE PRESENT CASE, A SEARCH CAME TO BE CONDUCTED ON 07.10.2009 AND THE NOTICE WAS ISSUED TO THE ASSESSE E UNDER SECTION 153A OF THE ACT FOR ASSESSMENT YEAR 2006-07 ON 04.08.2010. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 18.1 1.2010. IN TERMS OF SECTION 153B, THE ASSESSMENT WAS REQUIRED TO BE COMPLETED W ITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE SEARCH CAME TO BE CARRIED OUT, NAMELY, ON OR BEFORE 31ST MARCH, 2012. HERE INSOFAR AS THE IMPUGNED ADDITION IS CONCERNED, THE NOTICE IN RESPE CT THEREOF CAME TO BE ISSUED ON 19.12.2011 SEEKING AN EXPLANATION FROM TH E ASSESSEE. THE ASSESSEE GAVE ITS RESPONSE BY REPLY DATED 21.12.2011 CALLING UPON THE ASSESSING OFFICER TO PROVIDE COPIES OF STATEMENTS RECORDED ON OATH OF SHRI ROHIT P. MODI AND SMT. PARESHABEN K. MODI DURING THE SEARCH AS WELL AS THE COPIES OF THE DOCUMENTS UPON WHICH THE DEPARTMENT PLACED R ELIANCE FOR THE PURPOSE OF MAKING THE PROPOSED ADDITION AS WELL AS THE COPY OF THE EXPLANATION GIVEN BY SHRI ROHIT P. MODI AND SMT. PARESHABEN K, MODI R EGARDING THE ON-MONEY RECEIVED, COPIES OF THE ASSESSMENT ORDERS IN CASE O F SAID PERSONS AND ALSO REQUESTED THE ASSESSING OFFICER TO PERMIT HIM TO CR OSS-EXAMINE THE SAID IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 15 - PERSONS. THE ASSESSING OFFICER ISSUED SUMMONS TO TH E SAID PERSONS, HOWEVER, THEY WERE OUT OF STATION AND IT WAS NOT KNOWN AS TO WHEN THEY WOULD RETURN. IN THIS BACKDROP, WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO CROSS- EXAMINE THE SAID PERSONS, THE ASSESSING OFFICER MAD E THE ADDITION IN QUESTION. 18. IN THIS CASE, IT IS NOT THE CASE OF THE APPELLA NT THAT ANY INCRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CO NSIDERATION WAS FOUND DURING THE COURSE OF SEARCH. AT THE RELEVANT TIME W HEN THE NOTICE CAME TO BE ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSEE FILED ITS RETURN OF INCOME. MUCH LATER, AT THE FAG END OF THE PERIOD WITHIN WHI CH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE MADE, IN OTHER WORDS, WHE N THE LIMIT FOR FRAMING THE ASSESSMENT AS PROVIDED UNDER SECTION 153 WAS AB OUT TO EXPIRE, THE NOTICE HAS BEEN ISSUED IN THE PRESENT CASE SEEKING TO MAKE THE OPPOSED ADDITION OF RS. 11,05,51,000/- ON THE BASIS OF MATERIAL WHICH W AS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEMENT O F ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIKE THE PRESENT O NE, WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER AND NO ASSESSMENT OR REASSESSME NT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR M AKING OF REQUISITION UNDER SECTION 132A, WHILE COMPUTING THE TOTAL INCOME OF T HE ASSESSEE UNDER SECTION 153A OF THE ACT, ADDITIONS OR DISALLOWANCES CAN BE MADE ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR REQUISITION. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT NO IN CRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, HOWEVER, IT IS O N THE BASIS OF SOME MATERIAL COLLECTED BY THE ASSESSING OFFICER MUCH SU BSEQUENT TO THE SEARCH, THAT THE IMPUGNED ADDITIONS CAME TO BE MADE. 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING TH AT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS F OUND. IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN R ESPECT OF ALL THE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS, THE ASSESSMENT IN RE SPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSM ENT. UNDER SECTION 153A OF THE ACT, AN ASSESSMENT HAS TO BE MADE IN RELATIO N TO THE SEARCH OR REQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLO SED DURING THE SEARCH OR REQUISITION. IT IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE I N RELATION TO THAT ASSESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COMPLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJ ASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA), JODHPUR V. ASSISTANT COMMISSIONER OF INCOME TAX (SUPRA). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF COMMISSIO NER OF INCOME-TAX-1 V. JAYABEN RATIIAI SORATHIA (SUPRA) WHEREIN IT HAS BEE N HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDERING SECTION 153A OF THE ACT, THE ASSESSING IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 16 - OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RE SPECT TO SIX PRECEDING YEARS; HOWEVER, THERE MUST BE SOME INCRIMINATING MA TERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRAN SACTIONS IN THE PARTICULAR ASSESSMENT YEAR. 20. FOR THE FOREGOING REASONS, IT IS NOT POSSIBLE T O STATE THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM ANY LEGAL INFIRMITY SO AS TO GIVE RISE TO A QUESTION OF LAW, MUCH LESS, A SUBSTANTIAL QUESTION OF LAW, WARRANTING INTERFERENCE. THE APPEAL, THEREFORE, FAILS AND IS, ACCORDINGLY, D ISMISSED.' IT IS OBSERVED THAT IN CASE BEFORE HON'BLE GUJARAT HIGH COURT, FACTS OF THE CASE WERE AS UNDER: 'DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WA S NOTICED THAT THE ASSESSEE HAD PAID RS.11,05,51,000/- TO ONE SHRI ROH IT MODI IN RESPECT OF THE LAND SITUATED AT SHILAJ, TALUKA DASKROI (KNOWN AS T APOVAN LAND) (WHICH WAS TRANSACTED BY THE SANDESH LTD. AS CONFIRMING PARTY, M/S SAUMYA CONSTRUCTION PVT. LTD- AS THIRD PARTY AND ARYAMAN C O-OPERATIVE HOUSING SOCIETY LTD. AS PURCHASER FROM SHRI ROHIT P. MODI A ND PARESHABEN K. MODI) THROUGH A SALE DEED DATED 01.06.2006. SHRI ROHIT MO DI, IN HIS ASSESSMENT, ADMITTED RECEIPT OF RS.11,05,51,000/- AS ON-MONEY R ECEIVED IN CASH IN THE TRANSACTION OF LAND. THE ASSESSING OFFICER HELD THA T THE ON- MONEY HAS BEEN PAID BY THE ASSESSEE IN THE TRANSACTION FOR THE PUR CHASE OF LAND FROM SHRI ROHIT P. MODI AND PARESHABEN K. MODI AND ACCORDINGL Y, ADDED AN AMOUNT OF RS.11,05,51,000/- TO THE TOTAL INCOME OF THE ASS ESSEE UNDER SECTION 68 OF THE ACT IN RESPECT OF THE UNEXPLAINED INVESTMENT FO R PURCHASE OF LAND..........' 17. THE LD. CIT(A) TOOK INTO CONSIDERATION THE CATE GORICAL OBSERVATION MADE BY THE HONBLE HIGH COURT AT PARAGRAPH 18 OF THE SAID ORDER CRUX OF WHICH IS THIS THAT IF NO INCRIMINATING MATERIAL IS FOUND DURING SUCH FROM ASSESSEES PREMISES NO ADDITION CAN BE MADE ON THE BASIS OF THE MATERIAL COLLECTED AFTER SEARCH. IN THE CASE IN HAND BEFORE US THE SEARCH WAS CONDUCTED IN THE CASE OF S HRI SHAH ON 09 TH APRIL, 2013 AND IN CASE OF THE APPELLANT WAS ON 04 TH SEPTEMBER 2013. THE SO-CALLED INCRIMINATING DOCUMENTS AS RELIED UPON BY THE LD. AR WAS ADMITTED LY NOT FOUND FROM THE PREMISES OF THE ASSESSEE BUT FROM THE PREMISES OF SHIRISH SH AH; THE THIRD PARTY. AS WE FOUND THAT THE SIMILAR SET OFF FACTS THE HONBLE HIGH COU RT IN THE CASE OF SAUMYA CONSTRUCTION PVT. LTD. (SUPRA) HAS BEEN PLEASED TO UPHELD THE ORDER PASSED BY THE LD. TRIBUNAL IN DELETING ADDITION MADE BY THE LD. AR UN DER SECTION 153A OF THE ACT. 18. THUS, IT APPEARS THAT ALL ALONG AND ALL THROUGH THE LD. CIT(A) CONSIDERED THE RELEVANT JUDGMENTS APPLICABLE TO THE INSTANT CASE A S DISCUSSED HEREINABOVE AND REJECTED THE DECISION MADE BY THE LD. AO IN TREATIN G THE EXEMPT LONG TERM CAPITAL GAIN AS UNDISCLOSED INCOME NOT SUSTAINABLE UNDER SE CTION 153A OF THE ACT AND FINALLY DELETED THE ADDITION MADE BY THE AO BASED UPON NO I NCRIMINATING DOCUMENTS FOUND IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 17 - DURING THE COURSE OF SEARCH AT APPELLANTS PREMISES WITHOUT ANY AMBIGUITY SO AS TO WARRANT INTERFERENCE. 19. WE, THEREFORE, UPON BEING SATISFIED ON THE MAIN TAINABILITY POINT ITSELF REJECT SUCH APPEAL PREFERRED BY THE REVENUE RELYING UPON T HE JUDGMENTS DISCUSSED ABOVE FIND NO MERIT IN USURPING THE JURISDICTION CONFIRME D BY THE PROVISION OF SECTION 153A OF THE ACT BY THE LD. AO TO REASSESS THE YEAR UNDER CONSIDERATIONS IN THE ABSENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE SEARCH PROCEEDING FROM THE PREMISES OF THE APPELLANT IN THE UNABATED ASSESSMENT PROCEEDING . IN THE ABSENCE OF ANY MERIT FOUND IN THE APPEAL PREFERRED BY THE REVENUE WE REJ ECT THE SAME BY UPHOLDING THE ORDER PASSED BY THE LD. CIT(A). SINCE THE MATTER H AS BEEN DECIDED ON THE MAINTAINABILITY POINT ITSELF IN FAVOUR OF THE ASSES SEE ISSUES ON MERIT BECOME ACADEMIC, AND NEED NOT TO BE ADDRESSED. THE REVENU ES APPEAL IS, THUS, DISMISSED. 20. THE C.O. PREFERRED BY THE ASSESSEE CHALLENGING THE DECISION OF THE LD. AO IN RELYING UPON THE JUDGMENT PASSED BY THE HONBLE MUM BAI HIGH COURT IN THE CASE OF SHAMIM M. BHARWANI [2016] 69 TAXMANN.COM 65 HAS NO CONSEQUENCES AT ALL, SINCE THE APPEAL PREFERRED BY THE REVENUE STANDS DISMISSE D. THE C.O. IS ACCORDINGLY DISMISSED. 9. IN THIS REGARD, WE WOULD LIKE TO RELY UPON A PAR TICULAR DISCUSSION MADE BY THE LD. CIT(A) IS AS FOLLOWS:- THE ABOVE STATEMENT OF SHIRISH SHAH CLEARLY PROVES THAT HE HAS NOT PROVIDED ANY ACCOMMODATIVE ENTRIES TO APPELLANT. THE AO HAS COM PLETELY IGNORED HIS STATEMENT WHICH WAS RECORDED BY HIM JUST PRIOR TO COMPLETION OF ASSESSMENT PROCEEDINGS IN CASE OF APPELLANT. WHEN THE LOOSE PAPERS ARE FOUND FROM THE PREMISES OF SHIRISH SHAH, AO CANNOT INTERPREST SUCH LOOSE PAPERS IN HIS OWN WAY AND AS PER HIS CONVENIENCE WITHOUT READING ENTIRE LOOSE PAPERS TOG ETHER AND WITHOUT ESTABLISHING LIVE LINKAGE WITH THE TRANSACTIONS CARRIED OUT BY A PPELLANT AND THAT TOO, IGNORING THE VITAL STATEMENT OF SAID PERSON RECORDED BY HIM DURI NG THE COURSE OF ASSESSMENT PROCEEDING. THE DOCUMENTS RELIED UPON BY AO ARE NO T MATCHING WITH THE TRANSACTIONS CARRIED OUT BY APPELLANT ON HER GROUP AND EVEN THERE ARE MISTAKES IN SUCH DV SHEETS WHICH IS ADMITTED BY AO HIMSELF IN A SSESSMENT ORDER WHICH SUPPORTS THE CONTENTION OF APPELLANT THAT CAPITAL GAIN SHOWN ON SALE OF SHARES WAS GENUINE. 10. WE WOULD LIKE TO MENTION THAT SUCH OBSERVATION HAS MADE BY THE LD. CIT(A) AS ALSO THE ARGUMENT ADVANCED BY THE LD. AR HAS NOT BEEN REBUTTED BY THE LD. DR RENDER THE DR HAS FAILED TO CONTROVER T SUCH FINDING MADE BY THE LD. CIT(A). IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 18 - 11. IN THE PENULTIMATE PARAGRAPH THE LD. CIT(A) HAS OBSERVED AS FOLLOWS:- FROM THE DISCUSSION ABOVE, IN BRIEF, IT IS CLEAR T HAT THE DOCUMENT WHICH HAS BEEN RELIED UPON FOR MAKING THE ADDITION WAS NOT FOUND F ROM THE PREMISES OF THE APPELLANT BUT FOUND FROM THE PREMISES OF SHRI SHIRISH SHAH. THE SAID DOCUMENT WAS NOT IN THE HANDWRITING OF THE APPELLANT AND IT IS NOT SIGNED B Y THE APPELLANT OR ANYONE ON HER BEHALF. IN SUCH CIRCUMSTANCES, THE SAID DOCUMENT I S NOTHING BUT DUMB DOCUMENT AS FAR AS THE APPELLANT IS CONCERNED AND IT IS LEGALLY SETTLED PRINCIPLE THAT ADDITIONS CANNOT BE MADE ON THE BASIS OF DUMB DOCUMENT. FURT HER COPY OF STATEMENT OF SHRI DAMODAR ATTAL, EMPLOYEE OF SHRI SHIRISH SHAH, WHICH HAS BEEN RELIED UPON WAS NOT PROVIDED TO THE APPELLANT, WHICH IS AGAINST THE PRI NCIPLES OF NATURAL JUSTICE. MOREOVER, SHRI SHIRISH SHAH HIMSELF HAS DENIED IN T HE STATEMENT RECORDED BY THE AO THAT THE PROVIDED BOGUS CAPITAL GAIN TO THE APPELLA NT. THE DATE OF TRANSACTIONS MENTIONED IN THE DOCUMENT, RELIED UPON FOR MAKING T HE ADDITIONS, DO NOT MATCH WITH THE DATE GATHERED FROM THE SEBI BY THE AO AND THE S AME IS ADMITTED BY THE AO IN THE ASSESSMENT ORDER. THE APPELLANT HERSELF HAS BEEN C OVERED UNDER SEARCH & SEIZURE ACTION BUT NOT A SINGLE EVIDENCE ABOUT THE SHARE TR ANSACTION WITH SHRI SHIRISH SHAH HAS BEEN FOUND. THE COMPANY INVOLVED IN THESE TRAN SACTIONS IS STILL ACTIVELY TRADED ON THE STOCK EXCHANGES AND IT HAS NOT BEEN BARRED B Y SEBI. 12. AT THE TIME OF HEARING OF THE INSTANT APPEAL TH E LD. AR DREW OUT ATTENTION AT PAGE 222 OF THE PAPER BOOK FILED BEFOR E US WHICH SPEAKS OF THE STATEMENT ON OATH MADE BY THE SAID SHRI SHIRISH CHA NDRAKANT SHAH WHERE IN REPLY TO THE QUESTION NO. 12 HE HAS DEPOSED THAT HE IS BASICALLY A SHARE TRADER AND DEALS WITH LOT OF SHARES EVERY DAY. CHA NDANI IS ONE OF SUCH SHARES BEING DEALT WITH BY HIM. FURTHERMORE, IT IS A TRANSACTION IN THE STOCK MARKET WHICH IS VARIABLE. HE FURTHER REITERATED AN D/OR REAFFIRM THAT THE SAID TRANSACTIONS IN THE SHARES OF CHANDINI TEXTILES & E NGINEERING LTD. HAS NOTHING TO DO WITH CAPITAL GAIN AS SUCH. WE FIND N O COGENT DOCUMENT FORTHCOMING FROM THE REVENUE CONTROVERTING SUCH STA TEMENT MADE BY SHRI SHIRISH CHANDRAKANT SHAH. THEREFORE, NOWHERE IN TH E MATERIAL AS REFERRED BY THE LD. AO IN THE ASSESSMENT PROCEEDING PRACTICA LLY PROVES THAT THERE WAS ANY RELATION BETWEEN THE SAID SHRI SHIRISH C. S HAH AND THE APPELLANT. IT FURTHER APPEARS FROM THE LD. AOS ORDER THAT THE ST ATEMENT OF MR. DAMODAR IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 19 - ATTAL HAS THROUGH BEEN RELIED UPON BY HIM BUT IT IS A FACT THE SHRI DAMODAR ATTAL HAS NEVER ADMITTED SUCH TRANSACTION OF SHARES OF THE SAID COMPANY MADE BY THE APPELLANT OR HIS GROUP AS BOGUS IN NATU RE. FURTHERMORE, NEITHER ANY INCRIMINATING MATERIAL WAS FOUND AT THE PREMISE S OF THE ASSESSEE WHICH COULD PROVE THAT THE APPELLANT AT ANY STAGE OBTAINE D ALLEGED BOGUS LTCG ON SALE OF SHARES OF THE SAID COMPANY FROM SHIRISH CHA NDRA SHAH OR HIS GROUP. NO SUCH MENTIONING IN ANY DOCUMENT FOUND DURING SEA RCH AT THE PREMISES OF THE ASSESSEE IS AVAILABLE ON RECORD WHICH INDICATES ANY NEXUS WITH TRANSACTION CARRIED OUT BY THE APPELLANT IN SUCH SH ARES OF THE CHANDINI TEXTILES & ENGINEERING LTD. NOR DOES IT SUGGEST ACC OMMODATIVE ENTRIES EVER. THEREFORE, IT IS A FACT THAT NO DOCUMENTS FO UND DURING THE COURSE OF SEARCH FROM THE PREMISES OF THE APPELLANT WHICH COU LD BE TERMS AS INCRIMINATING IN NATURE AS PRESCRIBED UNDER SECTION 153A OF THE ACT AS THE CO-ORDINATE BENCH HAS ALREADY TAKEN CARE IN IT(SS)A NO. 179/AHD/2018. THE REVENUE BEFORE US HAS FAILED TO DRAW OUR ATTENT ION TO ANY MATERIAL WHICH IS INCRIMINATING IN NATURE FOUND DURING SUCH COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE AND THEREFORE, RESPECTFULL Y RELYING UPON THE JUDGMENT PASSED BY THE CO-ORDINATE BENCH AND THE IS SUE INVOLVED IN THE COMMON SEARCH PROCEEDING IN OUR CONSIDERED OPINION THE ASSESSMENT ORDER PASSED UNDER SECTION 153A IS BEYOND THE AMBIT, SCOP E AND PURVIEW OF SECTION 153A. KEEPING IN VIEW OF THE DIFFERENT PRO NOUNCEMENT MADE BY DIFFERENT JUDICIAL FORUMS INCLUDING THE JURISDICTIO NAL HIGH COURT IN THE CASE OF CIT VS. SAUMYA CONSTRUCTION PVT. LTD. REPORTED I N TAX APPEAL NO. 24 OF 2016 AND THE JUDGMENT PASSED BY THE HONBLE DELHI H IGH COURT IN THE MATTER OF CIT (CENTRAL)-III VS. KABUL CHAWLA REPORT ED IN [2015] 61 TAXMANN.COM 412 (DELHI) AS ALREADY DISCUSSED BY THE CO-ORDINATE BENCH IN IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 20 - IT(SS)A NO. 179/AHD/2018, WE FIND NO MERIT IN DISAL LOWING THE CLAIM OF EXEMPT LONG-TERM CAPITAL GAIN ON THE COUNT OF UNDIS CLOSED INCOME. THE SAME IS NOT SUSTAINABLE IN THE EYE OF LAW IN THE AB SENCE OF ANY INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH WHICH HAS PROPERL Y CONSIDERED BY THE LD. CIT(A). THE IMPUGNED ORDER, IS THUS, ACCORDING TO US JUST AND PROPER AND WITHOUT ANY AMBIGUITY SO AS TO WARRANT INTERFER ENCE. HENCE, THE APPEAL PREFERRED BY THE REVENUE IS DISMISSED. C.O. NO. 105/AHD/2019 (A.Y. 2011-12):- 13. SINCE THE ORDER HAS BEEN PASSED IN FAVOUR OF TH E ASSESSEE THE C.O. PREFERRED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. THE C.O. IS ACCORDINGLY DISMISSED. IT(SS)A NO. 135/AHD/2018(A.Y. 2011-12):- 14. THE IDENTICAL ISSUE INVOLVED IN THE CASE HAS AL READY BEEN DEALT WITH BY US IN IT(SS)A NO.130/AHD/2018 FOR A.Y. 2011-12 A ND IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTA TIS MUTANDIS. HENCE, THE APPEAL PREFERRED BY THE REVENUE IS DISMISSED. 15. IN THE COMBINED RESULTS, BOTH THE APPEAL PREFER RED BY THE REVENUE AND C.O. PREFERRED BY THE ASSESSEE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/06/2021 SD/- SD/- (WASEEM AHMED) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/06/2021 TANMAY, SR. PS TRUE COPY IT(SS)A NO.130/AHD/2018 & CO NO. 105/AHD/2 019 & IT(SS)A NO. 135/AHD/2018 DCIT VS. SMT SONAL D. VORA & SMT. NIRUBEN V. PATEL ASST.YEAR 2011-12 - 21 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 07.06.2021 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08.06.2021 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S .06.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .06.2021 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 25.06.2021 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.06.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER