Jupiter International Ltd., Kolkata V. DCIT, Central Circle - 1(4), Kolkata, Kolkata

CO 19/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6955 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 18-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Keywords: Depreciation; Income from undisclosed sources; Search and seizure; Principle of natural justice; Opportunity of cross examination; Source of fund; Third party statement; Accommodation entries; Unabsorbed depreciation; Set aside
• Section: 143(3); 142(1); 153A; 14A; 115JB; 80IC; 143(2); 68

Judgement Text

1 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T(SS).A. NO. 131/KOL/2017 ASSESSMENT YEAR: 2009-10 & I.T(SS).A. NOS. 132 TO 134/KOL/2017 ASSESSMENT YEAR: 2012-13 TO 2014-15 DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1(4), KOLKATA. VS. M/S. JUPITER INTERNATIONAL LTD. (PAN: AAACJ6956B) APPELLANT RESPONDENT & C.O. NOS. 18, 19 & 20/KOL/2018 IN I.T(SS).A. NOS. 131, 133 & 134/KOL/2017 ASSESSMENT YEARS: 2009-10, 2013-14 & 2014-15 M/S. JUPITER INTERNATIONAL LTD. (PAN: AAACJ6956B) VS. DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1(4), KOLKATA. CROSS OBJECTOR RESPONDENT DATE OF HEARING 18.01.2019 DATE OF PRONOUNCEMENT 01.03.2019 FOR THE REVENUE MD. USMAN, CIT, DR FOR THE ASSESSEE/CROSS OBJECTOR SHRI K. K. CHAPARIA , FCA ORDER PER BENCH: ALL THE APPEALS PREFERRED BY THE REVENUE AND THE CR OSS OBJECTIONS FILED BY THE ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A)-20, KOLKATA DATED 14.07.2017 FOR AYS 2009-10, 2012-13 TO 2014-15. SINCE MOST OF THE GROUNDS ARE COMMON AND FACTS ARE IDENTICAL, WE DISPOSE OF ALL THESE APPEALS AND THE CROSS OBJECTIONS TOGETHER BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP IT(SS) A NO. 131/KOL/2017 FOR A Y 2009-10. THOUGH THE REVENUE HAS RAISED 7 GROUNDS OF APPEAL BUT THE MAIN GRIEVAN CE OF THE REVENUE IS AGAINST THE ACTION OF 2 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 LD. CIT(A) IN DELETING THE ADDITIONS BY TAKING NOTE THAT IN SEC. 153A PROCEEDINGS ON THE DATE OF SEARCH SINCE THIS ASSESSMENT WAS NOT PENDIN G BEFORE THE AO, NO ADDITION CAN BE MADE WITHOUT THE AID OF INCRIMINATING MATERIAL. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS EN GAGED IN THE TRADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISHED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 24.09.2009 DECLARING TOTAL INCOME OF RS. NIL. HOWEVER, THE ASSESSEE WAS LIABL E UNDER MAT PROVISIONS U/S. 115JB OF THE OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT). ACCORDINGLY, BOOK PROFIT WAS DETERMINED AT RS.1,68,36,510/- AND TAX W AS PAID ON SUCH DEEMED TOTAL INCOME UNDER MAT PROVISIONS. SUCH TOTAL INCOME WAS DERIVE D AFTER CLAIMING DEDUCTION U/S. 80IC OF THE ACT WITH RESPECT TO MANUFACTURING UNIT SITUA TED AT BADDI IN HIMACHAL PRADESH. ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS ORIGINA LLY PASSED IN THIS CASE ON 26.12.2011 WHEREIN TAXABLE INCOME WAS ASSESSED AT RS.2,76,08,8 05/-. WHILE DOING SO, THE THEN AO DISALLOWED ENTIRE CLAIM OF DEDUCTION CLAIMED U/S. 8 0IC OF THE ACT. THE ASSESSEE COMPANY PREFERRED APPEAL AND AFTER GIVING EFFECT OF APPELLA TE ORDER PASSED BY LD. CIT(A), ITAT AND HONBLE CALCUTTA HIGH COURT, THE TAXABLE INCOME UND ER NORMAL PROVISIONS WAS ASSESSED AT NIL. THE APPELLATE AUTHORITIES HELD THAT THE ASSES SEE COMPANY IS ENTITLED TO DEDUCTION U/S. 80IC OF THE ACT OF RS.4,06,18,390/-, SUBJECT TO THE EXTENT OF TAXABLE INCOME. THEREAFTER, SEARCH U/S. 132 OF THE ACT WAS CONDUCTED IN THE BUS INESS PREMISES OF THE ASSESSEE ON 24.03.2015. SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF I NCOME ON 03.07.2015 DECLARING TAXABLE INCOME UNDER NORMAL PROVISIONS AT NIL. HOWEVER, TH E ASSESSEE WAS LIABLE UNDER MAT PROVISIONS U/S. 115JB OF THE ACT. ACCORDINGLY, BOO K PROFIT WAS DETERMINED AT RS.1,68,36,511/- AND TAX WAS PAID ON SUCH DEEMED TO TAL INCOME UNDER MAT PROVISIONS. SUBSEQUENTLY, NOTICES U/S. 143(2) OF THE ACT AND SE CTION 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIED WI TH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PASSED ON 31.12.2016 DET ERMINING TAXABLE INCOME UNDER NORMAL PROVISIONS AT RS.6,74,43,000/- AFTER MAKING DISALLOWANCES/ADJUSTMENTS ON ACCOUNT OF CASH CREDIT U/S. 68 OF THE ACT AMOUNTING TO RS.6 ,70,00,000/-, ON ACCOUNT OF MAT CREDIT ENTITLEMENT AMOUNTING TO RS.65,87,940/- AND SET OFF OF BUSINESS LOSS AGAINST ADDITIONS ON 3 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 ACCOUNT OF CASH CREDIT U/S. 68 OF THE ACT AMOUNTING TO RS.1,30,09,135/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOW ED THE ASSESSEES GROUND OF APPEAL ON TECHNICAL GROUND BY FOLLOWING THE DECISION OF HONB LE CALCUTTA HIGH COURT IN THE CASE OF ITA NO. 661 OF 2008 COMMISSIONER OF INCOME TAX VS.V EERPRABHU MARKETING LTD. SINCE THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER PA SSED U/S. 153A/143(3) OF THE ACT ARE NOT BASED ON ANY INCRIMINATING MATERIAL SEIZED DURI NG THE SEARCH OPERATION. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT ASSESSEE IS ENGAGED IN THE T RADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISH ED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 24.09.2009 DE CLARING TOTAL INCOME OF RS. NIL. HOWEVER, THE ASSESSEE WAS LIABLE UNDER MAT PROVISIO NS U/S. 115JB OF THE OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). ACCORDINGLY, BOOK PROFIT WAS DETERMINED AT RS.1,68,36,510/- AND TAX WAS PAID ON SUCH DEEMED TOTAL INCOME UNDER MAT PROVISIONS. SUCH TOTAL INCOME WAS DERIVED AFTER CL AIMING DEDUCTION U/S. 80IC OF THE ACT WITH RESPECT TO MANUFACTURING UNIT SITUATED AT BAD DI IN HIMACHAL PRADESH. ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS ORIGINALLY PASSED IN THIS CASE ON 26.12.2011 WHEREIN TAXABLE INCOME WAS ASSESSED AT RS.2,76,08,805/-. W HILE DOING SO, THE THEN AO DISALLOWED ENTIRE CLAIM OF DEDUCTION CLAIMED U/S. 80IC OF THE ACT. THE ASSESSEE COMPANY PREFERRED APPEAL AND AFTER GIVING EFFECT OF APPELLATE ORDER P ASSED BY LD. CIT(A), ITAT AND HONBLE CALCUTTA HIGH COURT, THE TAXABLE INCOME UNDER NORMA L PROVISIONS WAS ASSESSED AT NIL. THE APPELLATE AUTHORITIES HELD THAT THE ASSESSEE COMPAN Y IS ENTITLED TO DEDUCTION U/S. 80IC OF THE ACT OF RS.4,06,18,390/-, SUBJECT TO THE EXTENT OF T AXABLE INCOME. SEARCH U/S. 132 OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSES SEE ON 24.03.2015. SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WAS ISSUED AND I N RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.07.2015 DE CLARING TAXABLE INCOME UNDER NORMAL PROVISIONS AT NIL. HOWEVER, THE ASSESSEE WAS LIABL E UNDER MAT PROVISIONS U/S. 115JB OF THE ACT. ACCORDINGLY, BOOK PROFIT WAS DETERMINED A T RS.1,68,36,511/- AND TAX WAS PAID ON SUCH DEEMED TOTAL INCOME UNDER MAT PROVISIONS. SUBS EQUENTLY, NOTICES U/S. 143(2) OF THE ACT AND SECTION 142(1) OF THE ACT WERE ISSUED AND S ERVED ON THE ASSESSEE COMPANY AND 4 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/1 43(3) OF THE ACT WAS PASSED ON 31.12.2016 DETERMINING TAXABLE INCOME UNDER NORMAL PROVISIONS AT RS.6,74,43,000/- AFTER MAKING DISALLOWANCES/ADJUSTMENTS ON ACCOUNT OF CASH CREDIT U/S. 68 OF THE ACT AMOUNTING TO RS.6,70,00,000/-, ON ACCOUNT OF MAT CREDIT ENTI TLEMENT AMOUNTING TO RS.65,87,940/- AND SET OFF OF BUSINESS LOSS AGAINST ADDITIONS ON A CCOUNT OF CASH CREDIT U/S. 68 OF THE ACT AMOUNTING TO RS.1,30,09,135/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESSEES GROUND OF APPEAL ON TECHNICAL GROUND BY OBSERVING AS UNDER: I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE A SSESSMENT ORDER, DIFFERENT CASE LAWS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSO RS ON THIS LEGAL ISSUE. I FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH AND SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE I T. ACT, 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST, ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) A RE NOT BASED ON ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION . IT WOULD ALSO NOT BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEAR CH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASES REFERRED ABOVE AND THE RATIO DECIDED BY TH E HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA) IN THE LIGHT O F CBDT'S DECISION OF NOT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE A PEX COURT'S DECISION TO DISMISS SLP ON SIMILAR ISSUE IN THE CASE OF PR CIT VS KURELE PAPER MILLS PVT LTD : SLP (C) NO.34554 OF 2015 DT. 07-12-2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE' APPEAL ON GROUND NO 1 IS ALLOWED AND AS SUCH I AM NOT INCLINED TO ADJUDICATE APPEAL ON GROUND NO 2 TO 6 AND 8 ON MERIT. SINCE THE APPEAL IN THIS CASE HAS BEEN ADJUDICATED ON TECHNICAL GROUND, THEREFORE, I AM NOT INCLINED TO ADJUDICATE APPEALS ON OTHER GROUNDS ON MERIT. 8. APPEAL ON GROUND NO. 7 IS AGAINST NOT GIVING CRE DIT FOR PAYMENT UNDER MAT. I HAVE CONSIDERED THE SUBMISSION OF THE ASSESSEE ON THIS I SSUE. THE AO IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND GIVE CREDIT OF MAT PAYMENT AS P ER THE PROVISIONS OF THE I. T. ACT, 1961. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 5. THE LD. CIT, DR VEHEMENTLY ASSAILING THE ACTION OF THE LD. CIT(A) DREW OUR ATTENTION TO PAGE 6 OF AO, TO COUNTER THE OBSERVATI ON OF LD. CIT(A) THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING SEARCH. ACCORD ING TO LD. CIT, DR, THE AO HAS SPECIFICALLY RECORDED IN HIS ORDER AT PAGE 6, THAT STATEMENT OF SRI ALOK GARODIA (DIRECTOR OF ASSESSEE COMPANY) WHICH WAS RECORDED U/S. 132(4) OF THE ACT ON 25.03.2015 WHEREIN SHRI ALOK GARODIA CATEGORICALLY ADMITTED THAT DELIGHT T IE UP (P) LTD. HAS PROVIDED ACCOMMODATION ENTRIES OF RS.6.70 CR. AS SHARE APPLI CATION MONEY IN M/S. JUPITER INTERNATIONAL LTD. IN THE FY 2008-09, WHICH WAS ALL OTTED IN FY 2009-10. FURTHER, THE LD. 5 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 CIT, DR DREW OUR ATTENTION TO THE FACT RECORDED BY AO IN THE ASSESSMENT ORDER THAT DIRECTORS OF M/S. DELIGHT TIE-UP PVT. LTD., SHRI RA NJAN KUMAR DAS AND SHRI SANTANU BISWAS IN THEIR STATEMENTS RECORDED U/S. 131(1) OF THE AC T ON 23.04.2015 HAVE ADMITTED THAT THEIR COMPANY (M/S. DELIGHT TIE-UP) WAS ENGAGED IN PROVID ING ACCOMMODATION ENTRIES. FURTHER, THE LD. CIT, DR DREW OUR ATTENTION TO PAGE 7 OF AO S ORDER TO SHOW THAT AO HAS NOTED THAT SHRI ALOK GARODIA HAS NOT RETRACTED HIS STATEMENT G IVEN ON 25.03.2015 U/S. 132(4) OF THE ACT. AND THAT M/S. DELIGHT TIE-UP PVT. LTD. COULD NOT BE TRACED AT THE GIVEN ADDRESS AND NO EXPLANATION IS FORTHCOMING FROM ASSESSEE. IT WAS A LSO BROUGHT TO OUR NOTICE THAT M/S. DELIGHT TIE-UP PVT. LTD. HAS BEEN AMALGAMATED WITH ASSESSEES GROUP COMPANY M/S. DAYANIDHI MANAGEMENT PVT. LTD. VIDE ORDER OF HONBL E HIGH COURT OF CALCUTTA DATED 21.06.2010. SO, ACCORDING TO LD. CIT, DR, THE SHAR E SUBSCRIBING COMPANY M/S. DELIGHT TIE-UP PVT. LTD. GOT AMALGAMATED WITH ASSESSEES GR OUP COMPANY M/S. DAYANIDHI MANAGEMENT. SO, THIS DEVELOPMENT OF M/S. DELIGHT TIE UP PVT. LTD. SUBSCRIBING RS.6.70 CR. IN ASSESSEES COMPANY IN THIS ASSESSMENT YEAR (THOU GH ALLOTMENT TOOK PLACE NEXT YEAR) AND AMALGAMATING WITH ASSESSEES GROUP COMPANY M/S. DAY ANIDHI MANATEMENT, SHOULD BE SEEN IN THE LIGHT OF THE STATEMENT OF TWO DIRECTORS OF M /S. DELIGHT TIE-UP PVT. LTD. THAT THEY WERE ENGAGED IN PROVIDING ACCOMMODATION ENTRY, WHICH ACT IONS, ACCORDING TO LD. CIT, DR, GOES ON TO SHOW THAT THE SHARE SUBSCRIBING CAPITAL AND P REMIUM IS ASSESSEES OWN UNACCOUNTED MONEY. SO, ACCORDING TO LD. CIT, DR, THE FIRST APP ELLATE AUTHORITY MISERABLY FAILED TO TAKE NOT OF THE INCRIMINATING MATERIAL IN THE FORM OF AD MISSION GIVEN BY THE DIRECTOR OF ASSESSEE COMPANY DURING SEARCH CONDUCTED AND STATEMENT RECOR DED U/S. 132(4) OF THE ACT AND WHICH FACTS HAVE BEEN CORROBORATED BY THE DIRECTORS OF SH ARE SUBSCRIBING COMPANY (M/S. DELIGHT TIE-UP PVT. LTD.), SO HE WANTS US TO INTERFERE IN T HE IMPUGNED ORDER. PER CONTRA , WHILE COUNTERING THE SUBMISSION OF LD. CIT, DR, T HE LD. AR DREW OUR ATTENTION TO THE RECORDED STATEMENT OF MR. ALOK GAR ODIA RECORDED ON 25.03.2015 WHEREIN THE FOLLOWING RELEVANT QUESTIONS AND ANSWERS RECORDED I S NOTED AS UNDER: Q. 10. IT IS OBSERVED THAT JUPITER INTERNATIONAL L IMITED HAS ALLOTTED SHARES TO THE FOLLOWING COMPANIES: DATE OF ALLOTMENT NAME OF THE ALLOTTEE NO. OF SHARE S AMOUNT 05.05.2009 DELIGHT TIE UP PVT. LTD. 670000 6,70,00, 000 31.03.2014 VISHNUPRIYA VYAPAAR PVT. LTD. 1566000 7, 83,00,000 6 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 22.01.2015 KAILASHDHAM VANIJYA PVT. LTD. 619000 2,5 9,98,000 TOTAL 17,12,98,000 IT IS FOUND FROM FILED INQUIRY CONDUCTED BY THE DEP ARTMENT THAT THE ABOVE MENTIONED COMPANIES ARE NOT EXISTING AT THEIR RESPECTIVE ADDRESSES. KI NDLY OFFER YOUR COMMENT. ANS. SIR, THE AFORESAID MENTIONED COMPANIES HAVE IN VESTED IN MY COMPANY AND THE SAID FUND HAS BEEN PAID THROUGH CHEQUES. Q. 11. PLEASE STATE HOW WAS THE ALLOTMENT OF SHARES MADE TO THE ABOVE COMPANIES. PLEASE FURNISH THE NAME AND ADDRESS, MOBILE NO. OF THE DIR ECTORS OF THE AFORESAID MENTIONED COMPANIES. ANS. SIR, RIGHT NOW I DO NOT REMEMBER THE NAME OF D IRECTORS AND ADDRESSES OF THE COMPANIES NAMELY DELIGHT TIE UP PVT. LTD., VISHNUPRIYA VYAPAA R PVT. LTD. AND KAILASHDHAM VANIJYA PVT. LTD. THE DETAILS WILL BE FURNISHED IN DUE COURSE. 6. SO, IT WAS POINTED OUT BY THE LD. AR THAT THERE IS NO WHISPER OF SHRI ALOK GARODIA SAYING THAT M/S. DELIGHT TIE UP PVT. LTD. HAS PROVI DED ACCOMMODATION ENTRIES, WHEREAS HE HAS STATED THAT THE SHARES HAVE BEEN SUBSCRIBED BY THIS COMPANY AND PAYMENT WAS MADE THROUGH CHEQUES. SO, ACCORDING TO LD. AR, THE AOS ASSERTION IS NOT SUPPORTED BY ANY INCRIMINATING STATEMENT RECORDED U/S. 132(4) OF THE DIRECTOR OF ASSESSEE COMPANY AS CONTENDED BY THE LD. CIT, DR. AND IT WAS POINTED O UT BY THE LD. AR THAT ASSESSEES FERVENT REQUEST TO CROSS EXAMINE THE 2 DIRECTORS OF M/S. DELIGHT TIE UP PVT. LTD. WAS TURNED DOWN BY THE AO WHICH FACT IS RECORDED AT PAGE 8 OF HIS ORDER AND DREW OUR ATTENTION TO THAT FACT AND, THEREFORE, ACCORDING TO LD. AR, THE ACTIO N OF AO IS AGAINST THE NATURAL JUSTICE PRINCIPLES, SO NO ADVERSE VIEW COULD BE INFERRED AG AINST THE ASSESSEE. 7. AFTER HAVING HEARD BOTH SIDES IN DETAIL AND GOIN G THROUGH THE PAPER BOOK (RUNNING 108 PAGES) FILED BEFORE US FOR THIS ASSESSMENT YEAR AND AFTER PERUSING THE STATEMENT OF SHRI ALOK GARODIA U/S. 132(4) OF THE ACT RECORDED ON 25. 03.2015 (PAGES 1 TO 7), WE NOTE THAT SHRI ALOK GARODIA, WHO IS THE DIRECTOR OF ASSESSEE COMPANY HAS ACCEPTED TO RECEIVING SHARE APPLICATION MONEY BY WAY OF CHEQUE TO THE TUNE OF R S.6,70,00,000/- IN THIS ASSESSMENT YEAR FROM M/S. DELIGHT TIE UP PVT. LTD. AND THEREAFTER W AS ALLOTTED 670000 SHARES ON 05.05.2009 (AY 2010-11) AND HAVE REPLIED TO THE SPECIFIC QUEST ION THAT THIS COMPANY IS NOT EXISTING AT ITS RESPECTIVE ADDRESS BECAUSE OF LATER DEVELOPMENT WHICH TOOK PLACE AFTER AMALGAMATION OF ITS FINANCIAL DIVISION WITH ASSESSEES GROUP CONCER N M/S. DAYANIDHI MANAGEMENT. HE ADMITTED THAT THIS COMPANY (M/S. DELIGHT TIE UP PVT . LTD.) HAS INVESTED IN ASSESSEE 7 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 COMPANY AND IT WAS THROUGH CHEQUES. HOWEVER, AFTER HEARING WAS COMPLETED ON 06.12.2018, WHEN WE WERE STUDYING THE APPEAL ALONG WITH PAPER BOOK AND STATEMENT RECORDED BY THE DIRECTOR OF ASSESSEE COMPANY U/S. 1 32(4) OF THE ACT, WE NOTED THAT SHRI ALOK GARODIA HAS SAID THAT M/S. VISHNUPRIAYA VYAPAA R PVT. LTD. WHICH INVESTED MONEY IN ASSESSEE COMPANY IN (AY 2014-15) IS CONTROLLED BY H IM AND FOR AY 2015-16 SAME MODUS OPERANDI ADOPTED IN THE CASE OF M/S. VANIJYA PVT. L TD. IS FOLLOWED BY M/S. KAILASHDHAM VANIJYA PVT. LTD. FROM THE STATEMENT, IT IS DISCERN ED THAT BOTH SHARE APPLICANT COMPANIES INVESTED IN ASSESSEE COMPANY FOR THOSE YEARS WERE T HE DIRECTORS DIRECTLY CONTROLLED COMPANIES. IN THE LIGHT OF THIS STATEMENT AND THE ALLEGATION OF LD. CIT, DR, THAT IN THIS ASSESSMENT YEAR M/S. DELIGHT TIE UP LTD. GAVE THE S UBSCRIPTION MONEY AND LATER THE FINANCIAL DIVISION OF M/S. DELIGHT TIE UP LTD. GOT AMALGAMATED WITH ASSESSEES GROUP CONCERN M/S. DAYANIDHI MANAGEMENT WHEN SEEN IN THE LIGHT OF THE STATEMENTS RECORDED OF DIRECTORS OF M/S. DELIGHT TIE UP PVT. LTD. THAT IT IS INDULGED IN PROVIDING ACCOMMODATION ENTRIES, MADE US THINK IT AS APPROPRIATE TO CONFRON T THE ASSESSEES AR AND THE DEPARTMENT TO ELICIT THEIR VIEWS, SO WE FIXED THE APPEAL FOR CLAR IFICATION ON 04.01.2019, 11.01.2019 AND ON 18.01.2019. WE CONFRONTED THE LD. AR WITH THE AOS VIEW OF SHARE SUBSCRIPTION FOR AY 2009-10 FROM M/S. DELIGHT TIE UP LTD. AS WELL AS TO THE SECTION 132(4) STATEMENT OF ASSESSEES DIRECTOR DURING SEARCH PARTICULARLY TO T HE QUESTION NO. 28 TO QUESTION NO. 30 AND ANSWERS GIVEN BY ASSESSEES DIRECTOR U/S. 132(4). OTHER THAN SAYING THAT QUESTION 28 TO 30, PERTAIN TO AY 2014-15 AND AY 2015-16, THE LD. AR CO ULD NOT GIVE ANY REASONABLE EXPLANATION. FOR READY REFERENCE TO QUESTION NO. 28 TO 30 AND Q. NO. 10 AND ANSWER TO IT IS REPRODUCED BELOW: Q. 28. PLEASE GO THROUGH THE STATEMENT OF MR. SUBHA SH KUMAR BAID WHEREIN HE HAS STATED THAT VISHNUPRIYA VYAPAAR PVT. LTD. IS CONTROLLED BY YOU. THE SAID COMPANY HAS INGESTED RS.7,83,00,000/- IN FY 2013-14 (AY 2014-15) BYWAY O F EQUITY SHARES (15,66,000 EQUITY SHARES OF FACE VALUE OF RS.10/- AT THE PREMIUM OF RS. 40/- EACH) IN JUPITER INTERNATIONAL LTD. PLEASE CONFIRM WHETHER IT IS TRUE? ANS. YES, I CONFIRM THAT THE AFORESAID COMPANY IS U LTIMATELY CONTROLLED BY ME. I FURTHER CONFIRM THAT VISHNUPRIYA VYAPAAR PVT. LTD. HAS INVESTED RS. 7.83 CRORES IN JUPITER INTERNATIONAL LTD. Q.29. PLEASE EXPLAIN THE SOURCE OF FUNDS IN THE HAN DS OF VISHNUPRIYA VYAPAAR LTD. ANS. SOME OF THE DEBTORS OF THE COMPANY HAVE BEEN G IVEN EXTENDED CREDIT ON AN UNDERSTANDING THAT THEY WILL RELATE THE FUNDS AND BRING IN SUCH S UM IN VISHNUPRIYA VYAPAAR PVT. LTD. AND THE SAID SUM WILL BE ULTIMATELY USED FOR INVESTING IN E QUITY CAPITAL OF JUPITER INTERNATIONAL LTD. 8 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 Q.30. PLEASE STATE WHETHER ANY OTHER COMPANY IN THE NATURE OF VISHNUPRIYA VYAPAAR PVT. LTD. IS CONTROLLED BY YOU? ANS. YES, THERE IS ANOTHER COMPANY IN THE KAILASHDH AM VANIJYA PVT. LTD. WHICH IS ALSO HAVING SAME MODUS OPERANDI AND THIS COMPANY HAS INGESTED R S.2,59,98,000/- IN FY 2014-15 (AY 2015- 16) BY WAY OF EQUITY SHARES (6,19,000 EQUITY SHARES OF FACE VALUE RS.10/- AT THE PREMIUM OF RS.32/- EACH) IN JUPITER INTERNATIONAL LTD. Q. 10. IT IS OBSERVED THAT JUPITER INTERNATIONAL LI MITED HAS ALLOTTED SHARES TO THE FOLLOWING COMPANIES: DATE OF ALLOTMENT NAME OF THE ALLOTTEE NO. OF SHARE S AMOUNT 05.05.2009 DELIGHT TIE UP PVT. LTD. 670000 6,70,00, 000 31.03.2014 VISHNUPRIYA VYAPAAR PVT. LTD. 1566000 7, 83,00,000 22.01.2015 KAILASHDHAM VANIJYA PVT. LTD. 619000 2,5 9,98,000 TOTAL 17,12,98,000 IT IS FOUND FROM FILED INQUIRY CONDUCTED BY THE DEP ARTMENT THAT THE ABOVE MENTIONED COMPANIES ARE NOT EXISTING AT THEIR RESPECTIVE ADDRESSES. KI NDLY OFFER YOUR COMMENT. ANS. SIR, THE AFORESAID MENTIONED COMPANIES HAVE IN VESTED IN MY COMPANY AND THE SAID FUND HAS BEEN PAID THROUGH CHEQUES. 8. SO, FROM A CONJOINT READING OF THE ABOVE REPLIES GIVEN BY THE DIRECTOR OF ASSESSEE COMPANY U/S. 132(4) THAT ASSESSEE COMPANY IS IN REC EIPT OF RS. 7.83 CR. AND RS.2,59,98,000/- FROM COMPANIES UNDER THE CONTROL OF THE DIRECTOR OF ASSESSEE COMPANY (WHICH YEAR THE ASSESSEE RECEIVED THE SHARE APPLICATION MONEY IS NO T KNOWN, ONLY THE ALLOTMENT OF SHARES IS STATED) AND THE AO WE NOTE HAS NOT MADE ANY ADDITI ON IN RESPECT OF THESE SHARE APPLICATION MONIES ASSESSEE COMPANY RECEIVED IN THE ASSESSMENT YEARS BEFORE US. THOUGH THE QUESTION 28 TO 30 AND ANSWER TO IT BY THE DIRECTOR OF ASSESS EE COMPANY DOES NOT PERTAIN TO AY 2009- 10, THE SUBSEQUENT ACTION OF AMALGAMATION OF M/S. D ELIGHT TIE UP PVT. LTD.S FINANCIAL DIVISION WITH M/S. DAYANIDHI MANAGEMENT PVT. LTD. (ASSESSEES GROUP CONCERN) AS NOTED BY AO IN THE LIGHT OF THE STATEMENT RECORDED OF THE DIRECTORS OF M/S. DELIGHT TIE UP PVT. LTD. THAT THEY ARE PROVIDER OF ACCOMMODATION ENTRY, NEEDS DEEPER PROBE. 9. WHEN WE CONSIDER THE VARIOUS FACTUAL ASPECTS OF THE TRANSACTIONS WHICH WERE CARRIED ON BY VARIOUS BODY CORPORATE OVER A PERIOD OF TIME DURING THE PERIOD F.Y. 2008-09 TO 2014-15, WE NOTE THAT ALTHOUGH THE TRANSACTIONS WER E CONDUCTED IN THE NAMES OF DIFFERENT TAXABLE ENTITIES AND THAT TOO IN DIFFERENT FINANCIA L YEARS, YET WE FIND THAT COMMONALITY WHICH IS PERMEATING IN THE TRANSACTIONS BECAUSE ULTIMATEL Y THESE TRANSACTIONS WERE CONDUCTED AT THE 9 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 BEHEST OF MR. ALOK GORADIA PROMOTER/DIRECTOR OF THE ASSESSEE OR THESE TRANSACTIONS INVOLVED COMPANIES CONTROLLED AND/OR MANAGED BY THE SAID IND IVIDUAL. IN OUR OPINION TO DRAW ANY INFERENCE IN TAX PROCEEDING, THE REGARD MUST BE GIV EN TO THE SUBSTANCE OF THE TRANSACTION AND NOT THE FORM IN WHICH THE TRANSACTION IS CARRIED OUT. FOR DETER MINATION OF CORRECT TAX CONSEQUENCES, IT BECOMES NECESSARY IN THE APPROPRIA TE CASES TO IGNORE OR OVERLOOK THE FORM GIVEN BY THE PARTIES TO THE TRANSACTION AND ONE MUS T DETERMINE THE SUBSTANCE OF THE TRANSACTION BY FOLLOWING LOOK THROUGH APPROACH. IN THE PRESENT CASE WE FIND THAT M/S. DE LITE TIE-UP PVT. LTD FROM WHOM THE ASSESSEE RECEIVED SHA RE APPLICATION MONEY OF RS.670 LACS DURING THE RELEVANT YEAR CARRIED OUT COMPLEX, BUT C OORDINATED SCHEME OF RESTRUCTURING OF ITS OPERATIONS. HAVING CONTRIBUTED TO THE EQUITY CAPITA L OF THE ASSESSEE IN THE YEAR UNDER CONSIDERATION IN THE IMMEDIATE SUCCEEDING YEAR; THE SAID COMPANY PRESENTED A SCHEME OF ARRANGEMENT BEFORE HONBLE CALCUTTA HIGH COURT PROP OSING SUBSTANTIAL REDUCTION OF ITS CAPITAL AND SIMULTANEOUS DEMERGER OF ITS FINANCE DI VISION IN FAVOUR OF M/S. DAYANIDHI MANAGEMENT PVT. LTD, A COMPANY ADMITTEDLY BELONGING TO JUPITER GROUP. WE THEREFORE NOTE THAT THE ACTS CARRIED OUT BY VARIOUS BODIES CO RPORATE THOUGH SEPARATED IN TIME; YET THEY APPEARED TO BE WELL COORDINATED AND PRE-ORDAINED AN D APPARENTLY LACKING COMMERCIAL SUBSTANCE. 10. BY EFFECTING SUBSTANTIAL REDUCTION IN CAPIT AL, THE INVESTMENT MADE IN THE ASSESSEE COMPANY WAS SUBSTANTIALLY WRITTEN DOWN IN THE BOOKS OF THE INVESTOR COMPANY AND THEREAFTER THE INVESTMENT WAS TRANSFERRED TO ANOTHE R GROUP COMPANY AT MUCH DEPRECIATED VALUE. THE COMMERCIAL RATIONALE OF THIS EXERCISE AN D ITS IMPACT ON TAX LIABILITY NEED FURTHER PROBE. WE ALSO FIND THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND AS SUCH THE ASSESSEE COULD HAVE ISSUED ITS EQUITY CAPITAL ONLY TO PERSON S KNOWN TO THE DIRECTORS AND EXISTING SHAREHOLDERS OF THE ASSESSEE. EVEN THOUGH M/S. DELI TE TIE-UP PVT. LTD. SUBSCRIBED SUM OF RS. 670 LACS TO THE CAPITAL OF THE ASSESSEE, MR. AL OK GARODIA IN HIS STATEMENT RECORDED U/S 132(4) CLAIMED THAT HE WAS UNAWARE ABOUT THE IDENTI TY OF DIRECTORS OF THE COMPANY WHO HAD CONTRIBUTED SUCH SUBSTANTIAL AMOUNT TO ITS EQUI TY CAPITAL. IN THE CIRCUMSTANCES, WE FIND IT QUITE STRANGE THAT DIRECTOR OF THE ASSESSEE DID NOT RECOLLECT OR REMEMBER THE NAMES OF THE DIRECTORS AND ADDRESS OF THE INVESTOR WHO NOT ONLY HAD SUBSTANTIALLY CONTRIBUTED TO THE EQUITY INFUSION OF THE ASSESSEE BUT ALSO DEMERGED I TS FINANCE DIVISION TO ONE OF THE 10 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 ENTITIES BELONGING TO JUPITER GROUP. IN THIS REGARD , AS AFORE-STATED, AT THE COST OF REPETITION WE TAKE NOTE THAT THE ASSESSEE HAD SIMILARLY RECEIV ED SUBSTANTIAL INFUSION OF EQUITY FROM 2 OTHER BODIES CORPORATE IN THE F.YS. 2013-14 & 2014- 15. DURING THE F.Y. 2013-14 RELEVANT TO A.Y. 2014-15 THE ASSESSEE RECEIVED SHARE APPLICATIO N MONEY OF RS. 7,83,00,000/- FROM M/S. VISHNUPRIYA VYAPAAR PVT. LTD. AND IN F.Y. 2014-15 R ELEVANT TO A.Y. 2015-16, RS. 2,59,98,000/- FROM M/S. KAILASH DHAN VANIJYA PVT. L TD. IN THE CONTEXT OF SHARE APPLICATION AMOUNTS RECEIVED FROM THESE 2 BODIES CORPORATE, QUE STIONS WAS PUT TO SRI ALOK GORADIA IN THE COURSE OF SEARCH ENQUIRING FROM HIM THE NAMES O F THE DIRECTORS AND ADDRESSES OF THESE SHARE SUBSCRIBERS. LIKE IN THE CASE OF M/S. DELITE TIE-UP PVT. LTD., WHILE ANSWERING QUESTION NO. 11, MR. GORADIA EXPRESSED HIS IGNORANC E ABOUT THE IDENTITY OF THE DIRECTORS AND ADDRESSES OF THESE 2 BODIES CORPORATE; WHO HAD SIMILARLY SUBSCRIBED TO THE EQUITY CAPITAL OF THE ASSESSEE. WHILE RECORDING THE SAME STATEMENT MR. GORADIA WAS FURTHER CONFRONTED WITH THE STATEMENT OF MR. SUBASH BAID; AN ENTRY OPE RATOR WHO HAD CLAIMED THAT M/S. VISHNUPRIYA VYAPAAR PVT. LTD. WAS CONTROLLED BY MR. ALOK GARODIA. IN THE FACE OF THE STATEMENT OF MR. SUBASH BAID AT QUESTION NO. 28 & 2 9, MR. ALOK GORADIA NOT ONLY CONFIRMED THAT HE WAS IN CONTROL OF M/S. VISHNUPRIY A VYAPAAR PVT. LTD., BUT FURTHER CONFIRMED THAT FOLLOWING THE SAME MODUS OPERANDI HE WAS ALSO IN CONTROL OF M/S. KAILASH DHAN VANIJYA PVT. LTD. IN HIS REPLY TO QUESTION NO. 30. 11. WE THEREFORE FIND A CLEAR PATTERN IN THE AC TIONS OF MR. GORADIA WHILE RAISING FUNDS FOR THE ASSESSEE BY ISSUING EQUITY CAPITAL WITH THE AID AND USE OF THE PARTICULAR MODUS OPERANDI. WE FURTHER NOTE THAT PROPER ENQUIRY AS WAS NECESSAR Y TO BE CONDUCTED IN THE AFORESAID FACTS AND CIRCUMSTANCES WAS NOT CARRIED OUT BY THE AO BEF ORE THE ASSESSMENT WAS COMPLETED. WE ALSO NOTE THAT ALTHOUGH THE ASSESSEE FOLLOWED IDENT ICAL MODUS OPERANDI OF RAISING CAPITAL FROM OTHER BODIES CORPORATE AND MR. GORADIA IN HIS STATEMENT U/S 132(4) HAD ADMITTED OF USING THE MODUS OPERANDI DISCUSSED ABOVE IN THE LAT ER YEARS AND THERE BEING CLOSE SIMILARITY WITH THE SAID MODUS OPERANDI IN THE ASSESSMENT YEAR UNDER CONSIDERATION; WE DEEM IT FIT AND PROPER TO RESTORE THE IMPUGNED ADDITION OF RS.6,70, 00,000/- TO THE FILE OF THE AO WITH A DIRECTION TO CONDUCT ENQUIRY AFRESH. THE AO SHALL C LOSELY EXAMINE THE MODUS OPERANDI ADOPTED BY THE ASSESSEE OVER THE NUMBER OF YEARS TO FIND OUT WHETHER BY ADOPTING A PARTICULAR MODUS OPERANDI THE ASSESSEE HAS INTRODUC ED ITS UNACCOUNTED INCOME IN THE FORM 11 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 OF EQUITY CAPITAL OF THE COMPANY. IN DOING SO, OPP ORTUNITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE AND IF ANY ADVERSE MATERIAL IS IN T HE POSSESSION OF AO, AND IF THE AO INTENDS TO RELY ON THE SAME TO DRAW ADVERSE INFERENCE AGAIN ST ASSESSEE, THEN IT HAS TO BE SHARED WITH THE ASSESSEE. STATEMENTS IF ANY OF THE DIRECTORS OF M/S. DELITE TIE-UP PVT. LTD. HAS BEEN RECORDED WHICH IS ADVERSE AGAINST THE ASSESSEE MUST BE GIVEN TO THE ASSESSEE AND AN OPPORTUNITY TO CROSS-EXAMINE SHALL ALSO BE PROVIDED TO IT. NEEDLESS TO SAY THE AO SHOULD GIVE A COPY OF THE ADVERSE MATERIAL WHICH HE PROPOS ES TO USE AGAINST THE ASSESSEE AND IN CASE THE AO IS RELYING ON THIRD PARTY STATEMENTS TO DRAW ADVERSE INFERENCE AGAINST THE ASSESSEE, THEN THE AO SHOULD GIVE OPPORTUNITY TO AS SESSEE TO CROSS-EXAMINE THE THIRD PARTIES. THE AO TO DENOVE PASS ASSESSMENT ON THIS ISSUE UNTR AMMELED BY THE OBSERVATION GIVEN SUPRA BY INDEPENDENTLY APPLYING HIS MIND IN ACCORDA NCE TO LAW. 12. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E CROSS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 13. NOW WE ARE COMING TO IT(SS)A NO. 132/KOL/2017 F OR AY 2012-13. THOUGH THE REVENUE HAS RAISED 12 GROUNDS OF APPEAL BUT THE MAI N GRIEVANCE OF THE REVENUE IS AGAINST THE ACTION OF LD. CIT(A) IN DELETING THE ADDITIONS BY TAKING NOTE THAT IN SEC. 153A PROCEEDINGS ON THE DATE OF SEARCH SINCE THIS ASSESS MENT WAS NOT PENDING BEFORE THE AO, NO ADDITION CAN BE MADE WITHOUT THE AID OF INCRIMINATI NG MATERIAL. 14. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS E NGAGED IN THE TRADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISHED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2012 DECLARING A TOTAL LOSS OF RS.30,94,15,700/-. SEARCH U/S. 132 O F THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSI NESS PREMISES OF THE ASSESSEE ON 24.03.2015. SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF I NCOME ON 03.07.2015 DECLARING A TOTAL LOSS OF RS.30,94,15,700/-. SUBSEQUENTLY, NOTICES U/S. 1 43(2) OF THE ACT AND SECTION 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PA SSED ON 31.12.2016 DETERMINING TOTAL LOSS OF RS.28,81,49,180/- AFTER MAKING DISALLOWANCE S/ADDITIONS ON ACCOUNT OF PF & ESIC 12 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 AMOUNTING TO RS.84,253/- U/S. 36(1)(VA)/2(24)(X) OF THE ACT AND AN AMOUNT OF RS.2,11,82,000/- U/S. 14A OF THE ACT. AGGRIEVED, AS SESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESSEES GROUND OF APPEAL ON TECHNICAL GROUND BY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN PR. CIT VS. KURELE PAPER MILLS PVT. LTD., ITA NO. 369 OF 2015, SLP DISMISSED AND HONBLE CALCUTTA HIG H COURT IN THE CASE OF ITA NO. 661 OF 2008 COMMISSIONER OF INCOME TAX VS.VEERPRABHU MARKE TING LTD. AND OTHER CASE LAW WHEREIN IT WAS HELD THAT WHEN THE ASSESSMENT WAS NO T PENDING BEFORE THE AO ON THE DATE OF SEARCH NO ADDITIONS CAN BE MADE BY THE AO IN THE AS SESSMENT ORDER PASSED U/S. 153A/143(3) OF THE ACT UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL SEIZED/UNEARTHED DURING THE SEARCH OPERATION. AGGRIEVED, REVENUE IS IN APPEAL B EFORE US. 15. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT ASSESSEE IS ENGAGED IN THE T RADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISH ED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2012 DE CLARING A TOTAL LOSS OF RS.30,94,15,700/-. SEARCH U/S. 132 OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES O F THE ASSESSEE ON 24.03.2015. SUBSEQUENT TO SEARCH, NOTICE U/S. 153A OF THE ACT W AS ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.0 7.2015 DECLARING/REITERATING A TOTAL LOSS OF RS.30,94,15,700/-. SUBSEQUENTLY, NOTICES U/S. 1 43(2) OF THE ACT AND SECTION 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE COMP ANY AND DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PA SSED ON 31.12.2016 DETERMINING TOTAL LOSS OF RS.28,81,49,180/- AFTER MAKING DISALLOWANCE S/ADDITIONS ON ACCOUNT OF PF & ESIC AMOUNTING TO RS.84,253/- U/S. 36(1)(VA)/2(24)(X) OF THE ACT AND AN AMOUNT OF RS.2,11,82,000/- U/S. 14A OF THE ACT. 16. WE FURTHER NOTE THAT IN THE INSTANT YEAR, AFTER THE ORIGINAL RETURN OF INCOME WAS FILED ON 28.09.2012, SCRUTINY ASSESSMENT U/S. 143(3) OF T HE ACT WAS CARRIED OUT AND SCRUTINY ASSESSMENT U/S. 143(3) WAS PASSED ON 26.03.2015 BY MAKING THE AFORESAID ADDITIONS/DISALLOWANCE (WHICH HAS BEEN REITERATED A GAIN BY AO IN SEC. 153A PROCEEDINGS 13 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 AFTER SEARCH). THIS ORIGINAL ASSESSMENT ORDER PASS ED BY AO ON 26.03.2015 WAS LATER CHALLENGED BY THE ASSESSEE BY PREFERRING REGULAR FI RST APPEAL BEFORE THE LD. CIT(A). 17. COMING BACK TO THE ORDER PASSED U/S. 153A OF TH E ACT PASSED BY AO IS CONCERNED, WE NOTE THAT THE ASSESSEE HAS CHALLENGED BEFORE THE FIRST APPELLATE AUTHORITY AGAINST THE DECISION OF AO IN THE SAID PROCEEDINGS (SEC. 153A P ROCEEDINGS) WHICH HAS BEEN DECIDED BY THE LD. CIT(A) BY PASSING THE IMPUGNED ORDER WHEREI N HE WAS PLEASED TO DELETE THE ADDITION/DISALLOWANCE ON THE GROUND THAT SINCE THIS ASSESSMENT YEAR (AY 2012-13) WAS NOT PENDING ON THE DATE OF SEARCH , NO ADDITION/DISALLOWANCE CAN BE MADE WITHOUT THE AID OF INCRIMINATING MATERIAL. SO, HE DELETED THE ADDITIO N/DISALLOWANCE. WE ARE NOT IN AGREEMENT WITH THE ACTION OF THE LD. CIT(A) FOR THE SIMPLE RE ASON THAT THE LD. CIT(A) MISDIRECTED HIMSELF WHEN HE MADE A FINDING OF FACT THAT ON THE DATE OF SEARCH ON 24.03.2015, THE ASSESSMENT WAS NOT PENDING BEFORE THE AO. WE NOTE THAT AO AT PAGE 2 OF HIS SEC. 153A ORDER HAS RECORDED THAT ASSESSMENT FOR AY 2012-13 W AS COMPLETED U/S. 143(3) ON 26.03.2015 DETERMINING TOTAL INCOME AT (-) (RS.28,8 1,49,180). SO, WHEN THE SEARCH U/S. 132 OF THE ACT WAS CARRIED OUT ON 24.03.2015, AND WHEN THE FACT WAS THAT ASSESSMENT U/S. 143(3) FOR AY 2012-13 WAS COMPLETED ON 26.03.2015, IT IS A PPARENT THAT THE ASSESSMENT FOR AY 2012-13 WAS PENDING ON THE DATE OF SEARCH ON 24.03. 2015 . IN OTHER WORDS, WHEN SEARCH WAS CONDUCTED ON 24.03.2015, THE ORIGINAL ASSESSMEN T FOR AY 2012-13 WAS ALREADY UNDER SCRUTINY BEFORE THE AO WHICH CULMINATED IN HIM PASS ING THE ORDER OF ASSESSMENT U/S. 143(3) OF THE ACT ONLY ON 26.03.2015. THEREFORE, AS PER 2 ND PROVISO TO SEC. 153A OF THE ACT, THE ASSESSMENT FALLING WITHIN A PERIOD OF SIX ASSES SMENT YEARS WHICH WAS PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S. 132 OF THE AC T SHALL ABATE. SO, BY OPERATION OF LAW, THE ASSESSMENT OF AY 2012-13 WHICH WAS PENDING ON THE D ATE OF SEARCH HAS TO ABATE AND, THEREFORE, THE LD. CIT(A) HAS ERRONEOUSLY CONCLUDED THAT ASSESSMENT WAS NOT PENDING ON THE DATE OF SEARCH. IT IS IMMATERIAL THAT THE AO F OR AY 2012-13 PASSED THE SECTION 143(3) ORDER ON 26.03.2015, AND WHAT IS MATERIAL, IS THAT ON DATE OF SEARCH ASSESSMENT FOR AY 2012-13 WAS PENDING AND HAS NOT ATTAINED FINALITY. SO AS PER THE 2 ND PROVISO TO SECTION 153A, THE ASSESSMENT FOR AY 2012-13 STANDS ABATED O N 24.03.2015 IN THE EYES OF LAW AND, THEREFORE, AO HAS ALL POWERS TO MAKE ASSESSMENT AND IS NOT FETTERED WITH ANY LIMITATION, WHICH IS APPLICABLE TO UNABATED ASSESSMENTS. SO T HE ASSESSMENT CAN BE TREATED AS AN 14 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 ABATED ASSESSMENT AND THE AO IS NOT CIRCUMSCRIBED B Y THE CASE LAWS WHICH THE LD. CIT(A) APPLIES APTLY FOR UNABATED/NON-PENDING ASSESSMENT O N THE DATE OF SEARCH. SO, WE FIND MERIT IN THE APPEAL OF THE REVENUE AND SO SET ASIDE THE O RDER OF LD. CIT(A) AND REMAND THE APPEAL BACK TO THE FILE OF LD. CIT(A) TO DECIDE ON MERITS OF THE ADDITION/DISALLOWANCE MADE BY THE AO IN ACCORDANCE TO LAW AFTER HEARING THE AS SESSEE. THUS, THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF ASSESSEE ARE DISPOSED OFF FO R STATISTICAL PURPOSES. IN THE RESULT THE APPEAL OF REVENUE AND CO OF ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSES. 18. COMING TO IT(SS)A NO. 133/KOL/2017 AND CO NO. 19/KOL/2018 FOR AY 2013-14. THOUGH THE REVENUE HAS RAISED 8 GROUNDS OF APPEAL B UT THE MAIN GRIEVANCE OF THE REVENUE IS AGAINST THE ACTION OF LD. CIT(A) IN DELETING THE AD DITIONS BY TAKING NOTE THAT IN SEC. 153A PROCEEDINGS ON THE DATE OF SEARCH SINCE THIS ASSESS MENT WAS NOT PENDING BEFORE THE AO, NO ADDITION CAN BE MADE WITHOUT THE AID OF INCRIMINATI NG MATERIAL. 19. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS E NGAGED IN THE TRADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISHED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2013 DECLARING TOTAL INCOME OF RS. NIL. SEARCH U/S. 132 OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES O F THE ASSESSEE ON 24.03.2015. SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WA S ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.0 7.2015 DECLARING A TOTAL INCOME OF RS. NIL. SUBSEQUENTLY, NOTICES U/S. 143(2) OF THE ACT AND SECTION 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIE D WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PASSED ON 31.12.2016 DET ERMINING TOTAL INCOME OF RS. NIL AFTER MAKING DISALLOWANCES/ADDITIONS ON ACCOUNT OF PF & E SIC AMOUNTING TO RS.2,52,672/- U/S. 36(1)(VA)/2(24)(X) OF THE ACT AND AN AMOUNT OF RS.4 ,69,02,997/- U/S. 14A OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESSEES GROUND OF APPEAL ON RATIO FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN KURELE PAPER MILLS PVT. LTD. (SUPRA) (SLP DISMISSED) AND H ONBLE CALCUTTA HIGH COURT IN THE CASE OF ITA NO. 661 OF 2008 COMMISSIONER OF INCOME TAX V S.VEERPRABHU MARKETING LTD. WHEREIN IT WAS HELD THAT WHEN THE ASSESSMENT WAS N OT PENDING BEFORE THE AO ON THE DATE OF 15 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 SEARCH AND NO ADDITIONS CAN BE MADE BY THE AO IN TH E ASSESSMENT ORDER PASSED U/S. 153A/143(3) OF THE ACT UNLESS IT IS BASED ON ANY IN CRIMINATING MATERIAL SEIZED/UNEARTHED DURING THE SEARCH OPERATION. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 20. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT ASSESSEE IS ENGAGED IN THE T RADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISH ED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2013 DE CLARING TOTAL INCOME OF RS. NIL. SEARCH U/S. 132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 24.03.2015 . SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.07.2015 DECLARING A TOTAL INCOME OF RS . NIL. SUBSEQUENTLY, NOTICES U/S. 143(2) OF THE ACT AND SECTION 142(1) OF THE ACT WER E ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PASSED ON 31.12.2016 DETERMINING TOTAL INCOME OF RS . NIL AFTER ADJUSTING THE BROUGHT FORWARD BUSINESS LOSS OF AY 2012-13AND AFTER MAKIN G DISALLOWANCES/ADDITIONS ON ACCOUNT OF PF & ESIC AMOUNTING TO RS.2,52,672/- U/S. 36(1)( VA)/2(24)(X) OF THE ACT AND AN AMOUNT OF RS.4,69,02,997/- U/S. 14A OF THE ACT. AGGRIEVED , ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESSEES GROUND OF APP EAL ON TECHNICAL GROUND BY OBSERVING AS UNDER: I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE A SSESSMENT ORDER, DIFFERENT CASE LAWS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSO RS ON THIS LEGAL ISSUE. I FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH AND SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE I T. ACT, 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST, ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) A RE NOT BASED ON ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION . IT WOULD ALSO NOT BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEAR CH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASES REFERRED ABOVE AND THE RATIO DECIDED BY TH E HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA) IN THE LIGHT O F CBDT'S DECISION OF NOT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE A PEX COURT'S DECISION TO DISMISS SLP ON SIMILAR ISSUE IN THE CASE OF PR CIT VS KURELE PAPER MILLS PVT LTD : SLP (C) NO.34554 OF 2015 DT. 07-12-2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE' APPEAL ON GROUND NO 1 AND 2 ARE ALLOWED AND AS SUCH I AM NOT INCLINED TO ADJUDICATE APPEAL ON G ROUND NO 3 AND 4 ON MERIT. SINCE THE APPEAL IN THIS CASE HAS BEEN ADJUDICATED ON TECHNIC AL GROUND, THEREFORE, I AM NOT INCLINED TO ADJUDICATE APPEALS ON MERIT. 16 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 21. WE NOTE THAT THE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE TAKING NOTE THAT IN THIS ASSESSMENT YEAR 2013-14, THE ASSESSMENT WAS NOT PEN DING ON THE DATE OF SEARCH (I.E. ON 24.03.2015), WHICH FINDING OF FACT IS CORRECT, SO N O ADDITION/DISALLOWANCE CAN BE MADE BY THE AO WITHOUT THE AID OF INCRIMINATING MATERIAL SE IZED/UNEARTHED QUA THE ASSESSEE, QUA THIS ASSESSMENT YEAR. SO, WE CONCUR WITH THE ACTION OF THE LD. CIT(A) TO HOLD THAT IN NON- PENDING ASSESSMENTS ON THE DATE OF SEARCH, NO ADDIT ION/DISALLOWANCE CAN BE MADE BY THE AO WITHOUT THE AID OF INCRIMINATING MATERIAL FOUND/UNE ARTHED DURING SEARCH. FOR COMING TO SUCH A CONCLUSION, WE RELY ON THE ORDER OF HONBLE DELHI HIGH COURT IN CIT VS . KABUL CHAWLA (2016) 380 ITR 573 (DEL), WHEREIN THEIR LORDSHIPS HAVE HELD AS UNDER: SUMMARY OF LEGAL POSITION 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DE CISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHE D REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE TOTAL INCOME OF THE AFOREMENTIONED SIX YEARS IN S EPARATE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS IN WHICH BOTH THE D ISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHE R POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE E VIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD ASSESS IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD REASSESS TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO O NE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATI NG MATERIAL UNEARTHED DURING THE COURSE OF PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH W ERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 17 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 22. WE ALSO NOTE THAT THE HON'BLE JURISDICTIONAL CA LCUTTA HIGH COURT IN ITA NO. 661 OF 2008 COMMISSIONER OF INCOME TAX VS.VEERPRABHU MARKE TING LTD. HAS ALSO HELD AS UNDER: WE AGREE WITH THE VIEW EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS PRE-REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISE D U/S 153(C) R.W SECTION 153(A). IN THE CASE BEFORE US, THE AO HAS MADE A DISALLOWANCE OF T HE EXPENDITURE, WHICH WAS HELD DISCLOSED, FOR ONE REASON OR THE OTHER, BUT SUCH DISALLOWANCES MADE BY THE AO WERE UPHELD BY THE LD.CIT(A) BUT THE LD. TRIBUNAL DELETED THESE DISALL OWANCE. WE FIND NO INFIRMITY IN THE AFORESAID ACT OF THE LD. TRIBUNAL. THE APPEAL IS, T HEREFORE, DISMISSED. SINCE THE LD. CIT(A) HAS RIGHTLY DECIDED THE APPEAL OF THE ASSESSEE RELYING ON THE JUDICIAL PRECEDENTS, WE CONCUR WITH HIS ACTION BECAUSE THE R EVENUE COULD NOT CONTROVERT THE FACT THAT THIS ASSESSMENT YEAR WAS NOT PENDING ON THE DATE OF SEARCH AND NO INCRIMINATING MATERIAL QUA THIS ASSESSMENT YEAR WAS THE BASIS FOR THE ADDI TION/DISALLOWANCE, SO WE UPHOLD THE ACTION OF LD. CIT(A) AND DISMISS THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE IS ACADEMIC ON THE FACTS OF THE CASE AND S O IS DISMISSED. THEREFORE, BOTH THE APPEAL OF REVENUE AND THE CROSS OBJECTION OF ASSESS EE ARE DISMISSED. 23. IN THE RESULT, BOTH THE APPEAL OF REVENUE AND T HE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 24. NOW, WE ARE COMING TO IT(SS)A NO. 134/KOL/2017 AND CO NO. 20/KOL/2018 FOR AY 2014-15. THOUGH THE REVENUE HAS RAISED 11 GROUNDS O F APPEAL BUT THE MAIN GRIEVANCE OF THE REVENUE IS AGAINST THE ACTION OF LD. CIT(A) IN DELE TING THE ADDITIONS BY TAKING NOTE THAT IN SEC. 153A PROCEEDINGS ON THE DATE OF SEARCH SINCE T HIS ASSESSMENT WAS NOT PENDING BEFORE THE AO, NO ADDITION CAN BE MADE WITHOUT THE AID OF INCRIMINATING MATERIAL. 25. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS E NGAGED IN THE TRADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISHED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2014 DECLARING TOTAL INCOME OF RS. NIL. SEARCH U/S. 132 OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES O F THE ASSESSEE ON 24.03.2015. SUBSEQUENT TO SEARCH, NOTICE U/S. 153A OF THE ACT W AS ISSUED AND IN RESPONSE THERETO, THE 18 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.0 7.2015 DECLARING A TOTAL LOSS OF RS. 5,22,63,140/-. SUBSEQUENTLY, NOTICES U/S. 143(2) O F THE ACT AND SECTION 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PASSED ON 31. 12.2016 DETERMINING TOTAL INCOME OF RS. 3,13,90,140/- AFTER MAKING DISALLOWANCES/ADDITI ONS ON ACCOUNT OF SEC. 14A AMOUNTING TO RS.4,78,76,015/-, U/S. 56(2)(VIIB) OF THE ACT A MOUNTING TO RS.3,29,48,640/-, ON ACCOUNT OF PROVISION FOR INTEREST ON UNSECURED LOAN AMOUNTI NG TO RS.11,42,572/- AND ON ACCOUNT OF PROVISION FOR DISCOUNT AMOUNTING TO RS.16,86,052/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESS EES GROUND OF APPEAL ON THE RATIO FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN KURELE PAPER MILLS LTD. (SUPRA) AND HONBLE CALCUTTA HIGH COURT IN THE CASE OF ITA NO. 661 OF 2008 COMMISSIONER OF INCOME TAX VS.VEERPRABHU MARKETING LTD. AND OTHER CASE LA WS, WHEREIN IT WAS HELD THAT THE ASSESSMENT WAS NOT PENDING BEFORE THE AO ON THE DAT E OF SEARCH AND NO ADDITIONS CAN BE MADE BY THE AO IN THE ASSESSMENT ORDER PASSED U/S. 153A/143(3) OF THE ACT UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL SEIZED/UNEARTHE D DURING THE SEARCH OPERATION. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 26. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT ASSESSEE IS ENGAGED IN THE T RADING OF COMPUTER PERIPHERALS AND PARTS AND MANUFACTURING OF CDR AND DVDR AND WAS ESTABLISH ED ON 08.09.1978. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 28.09.2014 DE CLARING TOTAL INCOME OF RS. NIL. SEARCH U/S. 132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 24.03.2015 . SUBSEQUENT TO SEARCH NOTICE U/S. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 03.07.2015 DECLARING A TOTAL LOSS OF RS. 5,22,63,140/-. SUBSEQUENTLY, NOTICES U/S. 143(2) OF THE ACT AND SECTION 142(1) OF THE AC T WERE ISSUED AND SERVED ON THE ASSESSEE COMPANY AND DULY COMPLIED WITH AND ASSESSMENT ORDER U/S. 153A/143(3) OF THE ACT WAS PASSED ON 31.12.2016 DETERMINING TOTAL INCOME OF RS . 3,13,90,140/- AFTER MAKING DISALLOWANCES/ADDITIONS ON ACCOUNT OF SEC. 14A AMO UNTING TO RS.4,78,76,015/-, U/S. 56(2)(VIIB) OF THE ACT AMOUNTING TO RS.3,29,48,640/ -, ON ACCOUNT OF PROVISION FOR INTEREST ON UNSECURED LOAN AMOUNTING TO RS.11,42,572/- AND O N ACCOUNT OF PROVISION FOR DISCOUNT 19 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 AMOUNTING TO RS.16,86,052/-. ON APPEAL, THE LD. CI T(A) DELETED THE ADDITIONS ON THE GROUND THAT SINCE THIS ASSESSMENT YEAR 2014-15 WAS NOT PENDING ON THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL UNEARTHED DURIN G SEARCH, NO ADDITION OUGHT TO HAVE BEEN MADE AND SINCE THE ADDITION IS NOT BASED ON IN CRIMINATING MATERIAL SEIZED DURING SEARCH, HE WAS PLEASED TO DELETE THE ADDITION BY OB SERVING AS UNDER: I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE A SSESSMENT ORDER, DIFFERENT CASE LAWS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSO RS ON THIS LEGAL ISSUE. I FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH AND SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE I T. ACT, 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST, ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) A RE NOT BASED ON ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION . IT WOULD ALSO NOT BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEAR CH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASES REFERRED ABOVE AND THE RATIO DECIDED BY TH E HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA) IN THE LIGHT O F CBDT'S DECISION OF NOT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE A PEX COURT'S DECISION TO DISMISS SLP ON SIMILAR ISSUE IN THE CASE OF PR CIT VS KURELE PAPER MILLS PVT LTD : SLP (C) NO.34554 OF 2015 DT. 07-12-2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE' APPEAL ON GROUND NO 1 AND 2 ARE ALLOWED AND AS SUCH I AM NOT INCLINED TO ADJUDICATE APPEAL ON G ROUND NO 2 TO 5 ON MERIT. SINCE THE APPEAL IN THIS CASE HAS BEEN ADJUDICATED ON TECHNICAL GROU ND, THEREFORE, I AM NOT INCLINED TO ADJUDICATE APPEALS ON MERIT. APPEAL ON GROUND NO. 6 IS AGAINST NOT ALLOWING SET OFF OF BROUGHT FORWARD BUSINESS LOSS AND/OR UNABSORBED DEPRECIATION. I HAVE CONSIDERED THE SUB MISSION OF THE ASSESSEE ON THIS ISSUE. THE AO IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND ADJUST BROUGHT FORWARD BUSINESS LOSS AND/OR UNABSORBED DEPRECIATION AS PER THE PROVISION S OF THE I. T. ACT, 1961. 27. AGAINST THE AFORESAID RELIEF GRANTED TO ASSESSE E, THE REVENUE HAS PREFERRED THIS APPEAL WHEREAS THE ASSESSEE HAS FILED THIS CROSS OB JECTION ASSAILING THE DECISION OF LD. CIT(A) THAT HE HAS NOT DECIDED THE APPEAL ON MERITS OF THE ADDITION/DISALLOWANCE. WE DO NOT AGREE WITH THE ACTION OF THE LD. CIT(A) FOR THE SIMPLE REASON THAT IN THIS CASE THE ORIGINAL RETURN OF INCOME WAS FILED FOR AY 2014-15 ON 28.09.2014. AND THOUGH SEARCH HAPPENED ON 24.03.2015, THE AO HAD ISSUED NOTICE FO R SCRUTINY U/S. 143(2) NOTICE ON 03.07.2015 WHICH IS WELL WITHIN THE STATUTORY PERIO D . SO, THE AY 2014-15, CANNOT BE SAID TO BE AN UN-ABATED PROCEEDINGS AS MISUNDERSTOOD BY LD. CIT(A). THE POWER OF AO TO ISSUE NOTICE U/S. 143(2) FOR SCRUTINY ASSESSMENT HA D NOT EXPIRED ON THE DATE OF SEARCH AND THE AO HAD ISSUED NOTICE U/S. 143(2) WITHIN THE STA TUTORY PERIOD PERMISSIBLE BY LAW, THEN AO IS VESTED WITH THE JURISDICTION TO CONDUCT SCRUT INY ASSESSMENT. SO WHEN THE AO ISSUED 143(2) NOTICE ON 03.07.2015, THE ASSESSMENT FOR AY 2014-15 IS PENDING ASSESSMENT AND 20 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 THERE IS NO LAW WHICH FORBIDS THE AOS POWER TO ISS UE 143(2) NOTICE, EVEN IF SEARCH HAPPENED, SO WE CANNOT TAKE AWAY THE POWER OF AO WH ICH HE IS EMPOWERED TO U/S. 143(2) TO ISSUE NOTICE WITHIN THE STATUTORY PERMISSIBLE T IME LIMIT. SO, IN THE LIGHT OF THE FACTS AND LAW DISCUSSED ABOVE, WE HOLD THAT LD. CIT(A) ERRED IN HOLDING THAT THIS ASSESSMENT YEAR (AY 2014-15) WAS NOT PENDING BEFORE THE AO. THEREF ORE, THE RATIO OF CASE LAWS RELIED ON BY THE LD. CIT(A) TO GIVE RELIEF TO THE ASSESSEE IS NOT CORRECT, SO THE IMPUGNED ORDER IS NOT LEGALLY SUSTAINABLE AND ACCORDINGLY WE HOLD THAT TH E AO HAS ALL POWERS TO MAKE ADDITION/DISALLOWANCE AS IN ANY SCRUTINY ASSESSMENT AND HAS NO FETTER ON HIS POWER. THE LD. CIT(A) MISDIRECTED HIMSELF BY TREATING THE ASSE SSMENT FOR INSTANT YEAR I.E. AY 2014-15 AS NOT PENDING ON THE DATE OF SEARCH, WHEN THE FACT WAS THAT THOUGH THE DATE OF SEARCH WAS ON 24.03.2015, THE JURISDICTION FOR THE AO TO ISSUE NOTICE U/S. 143(2) HAS NOT EXPIRED ON 03.07.2015, SO THE ASSESSMENT CAN BE TREATED AS AN ABATED ASSESSMENT AND THE AO IS NOT CIRCUMSCRIBED BY THE CASE LAWS WHICH THE LD. CIT(A) APPLIES APTLY FOR UNABATED/NON- PENDING ASSESSMENT ON THE DATE OF SEARCH. SO, WE F IND MERIT IN THE APPEAL OF THE REVENUE AND SO SET ASIDE THE ORDER OF LD. CIT(A) AND REMAND THE APPEAL BACK TO THE FILE OF LD. CIT(A) TO DECIDE ON MERITS OF THE ADDITION/DISALLOW ANCE MADE BY THE AO IN ACCORDANCE TO LAW AFTER HEARING THE ASSESSEE. THUS, BOTH THE APP EAL OF THE REVENUE AND CROSS OBJECTION OF ASSESSEE ARE DISPOSED OFF FOR STATISTICAL PURPOSES. 28. IN THE RESULT, BOTH THE APPEAL OF REVENUE AND T HE CROSS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 01/03/201 9 SD/- SD/- (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 1 ST MARCH, 2019 JD.(SR.P.S.) 21 IT(SS)A NO. 131 TO 134/KOL/2017 & CO NOS.18 TO 20/K OL/2018 M/S. JUPITER INTERNATIONAL LTD., AY 2009-10 & 2012- 13 TO 2014-15 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT DCIT, CENTRAL CIRCLE-1(4), KOLKATA. 2 RESPONDENT M/S. JUPITER INTERNATIONAL LTD., 30, J ADUNATH DEY ROAD, 4 TH FLOOR, KOLKATA- 700 012. . 3 4 5 CIT(A)-20, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR