M/S BANNALAL JAT CONSTRUCTIONS PVT. LTD., BHILWARA V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER

CO 37/JPR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1227 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 13-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Keywords: Unexplained cash credit; Revision of order; Income from undisclosed sources; Search and seizure; Difference of opinion; Corroborative evidences; Block assessment; Tax effect; Capital receipt; Revised return; Reassessment proceedings; Capital expenditure
• Section: 143(3); 153A; 139(5); 147; 131; 68; 148; 263; 132; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 727 & 728/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 & 2014-15 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. M/S BANNA LAL JAT CONSTRUCTIONS PVT. LTD., NEAR BUS STAND, JAHAJPUR, BHILWARA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCB 9357 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 37 & 38/JP/2017 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 727 & 728/JP/2017) FU/KZKJ.K O'K Z @ ASSESSMENT YEARS 2013-14 & 2014-15 M/S BANNA LAL JAT CONSTRUCTIONS PVT. LTD., NEAR BUS STAND, JAHAJPUR, BHILWARA. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCB 9357 J IZR;K{KSID@ OBJECTOR IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY: SHRI VARINDER MEHTA (CIT-DR) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/09/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 28/11/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, JM: THESE TWO APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE TWO S EPARATE ORDERS OF THE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 2 LD. CIT(A)-2, UDAIPUR DATED 24/07/2017 FOR THE A.YS. 2013-14 AND 2014- 15 RESPECTIVELY. 2. FIRST WE TAKE UP THE APPEAL OF THE REVENUE FOR TH E A.Y. 2013-14, WHEREIN THE REVENUE HAS RAISED FOLLOWING GROUNDS OF A PPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 1,30,00,0 00/- MADE BY THE AO U/S 68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF UN EXPLAINED SHARE APPLICATION MONEY. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (A) WAS RIGHT IN DELETING THE ADDITION OF RS. 1,30,00,0 00/- MADE U/S 68 OF THE INCOME TAX ACT WHEN THE ASSESSEE FAILED TO PROD UCE THE DIRECTORS OR AUTHORIZED REPRESENTATIVES OF THE ALLEGED INVESTING COMPANIES FOR VERIFICATION AND THUS GENUINENESS OF THE SHARE APPL ICATION MONEY REMAINED TO THE ESTABLISHED. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 1,30,00,0 00/- MADE U/S 68 OF THE INCOME TAX ACT WHEN THE CREDITWORTHINESS OF THE INVESTING COMPANIES WAS NOT ESTABLISHED AS THE INVESTING COMP ANIES DO NOT HAVE ANY PROFIT EARNING APPARATUS AND INCOME SHOWN BY TH EM WAS NOT COMMENSURATE WITH THE ALLEGED INVESTMENT CLAIMED TO BE MADE. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 1,30,00,0 00/- MADE U/S 68 OF THE INCOME TAX ACT BY IGNORING THE FACT THAT IMMEDI ATELY PRIOR TO THE MAKING OF INVESTMENT THERE WERE IDENTICAL DEPOSITS IN THE BANK ACCOUNT OF THE INVESTING COMPANIES AND THUS MERE ROUTING OF TRANSACTION THROUGH BANK ACCOUNT WAS NOT SUFFICIENT PROOF OF CR EDITWORTHINESS OR GENUINENESS OF THE TRANSACTIONS. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 13,00,000 /- MADE BY AO ON ACCOUNT OF UNEXPLAINED ADVANCES FOUND RECORDED ON S EIZED ANNEXURE A- ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 3 1 PG 4 WHEN ON VERIFICATION OF THE BOOKS OF ACCOUNT S, THE SAME WERE NOT FOUND RECORDED IN THE BOOKS OF ACCOUNTS. THE APPELLANT CRAVE, LEAVE OR RESERVING THE RIGHT TO AMEND MODIFY, ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME B EFORE OR DURING THE HEARING OF THIS APPEAL.' 3. THE ONLY ISSUE RAISED BY THE REVENUE IN THIS APPE AL IS REGARDING THE ADDITION OF RS. 1.30 CRORES MADE BY THE ASSESSING O FFICER U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON ACCOUNT O F UNEXPLAINED SHARE APPLICATION MONEY, WAS DELETED BY THE LD. CIT(A). THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF TAKING OF GOVERNMENT CONTRACTS. THE ASSESSEE FILED ITS RETURN OF INCOME ON 28/09/2013 DECLARING TOTAL INCOME OF RS. 2,34,45,12 0/-. A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 10/10/2014 CONSEQUENTLY THE ASSE SSING OFFICER ISSUED NOTICE U/S 153A OF THE ACT ON 22/12/2014. IN RESPON SE TO THE NOTICE ISSUED U/S 153A OF THE ACT, THE ASSESSEE FILED RETU RN OF INCOME ON 21/01/2015 AT THE SAME INCOME AS DECLARED IN THE OR IGINAL RETURN OF INCOME. ON PERUSAL OF THE AUDIT REPORT ANNEXED WITH THE RETURN OF INCOME, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE COMPA NY HAS RECEIVED SHARE APPLICATION MONEY AND RAISED SHARE CAPITAL WITH PREM IUM. THE DETAILS OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FR OM VARIOUS PARTIES ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 4 LOCATED AT KOLKATA ARE PRODUCED BY THE ASSESSING OF FICER AT PAGE NO. 2 OF THE ASSESSMENT ORDER AS UNDER: S. NO. NAME OF COMPANY AMOUNT OF SHARE APPLICATION F.Y. 2012 - 13 F.Y. 2013 - 14 1. CANNY PROPERTIES PVT. LTD. 1000000 2000000 2. LIBERAL PROPERTIES PVT. LTD. 2000000 2000000 3. MAHAVIR FINCON PVT. LTD. 2000000 115000 4. RACHNA VANIJYA PVT. LTD. 2000000 5. SARGAM LEFINS PVT. LTD. 6500000 6. SURICHI DISTRIBUTORS PVT. LTD . 5500000 7000000 7. VERSATILE COMMOTRADE PVT. LTD. 2500000 TOTAL 13000000 19615000 IN ORDER TO VERIFY THE CREDITWORTHINESS AND GENUINEN ESS OF TRANSACTIONS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE NATURE OF BUSINESS ACTIVITY OF THE SHARE APPLICANTS, SOURCE OF INVESTM ENT AND ALSO TO FURNISH THE BALANCE SHEET, P&L ACCOUNT ETC. OF THE SHARE AP PLICANT COMPANIES. WHEN THE ASSESSEE FAILED TO PRODUCE THE SUPPORTING EVIDENCE AS ASKED BY THE ASSESSING OFFICER, THE ASSESSEE WAS ASKED TO PRO DUCE THE DIRECTOR OR THE EMPLOY DULY AUTHORIZED BY THE DIRECTOR FOR VERI FICATION AND TO EXPLAIN THE NATURE OF TRANSACTION WITH SOURCE OF INVESTMENT DULY SUPPORTED BY DOCUMENTARY EVIDENCE. THE STATEMENT OF THE DIRECTOR OF THE ASSESSEE COMPANY NAMELY SHRI B.L. JAT WAS RECORDED U/S 131 OF THE ACT ON ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 5 20/12/2016. THE ASSESSING OFFICER HELD THAT THE AMOU NT RECEIVED IN THE FORM OF ALLEGED SHARE APPLICATION MONEY IS NOTHING BUT UNDISCLOSED INCOME OF THE ASSESSEE AND ACCORDINGLY MADE ADDITION OF TH E ENTIRE SHARE APPLICATION MONEY AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 4. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) AND CONTENDED THAT THE ASSESSEE DISCH ARGED ITS OBLIGATION AND ONUS BY PRODUCING ALL RELEVANT DOCUMENTS IN SUP PORT OF ITS CLAIM. THE LD. CIT(A) HELD THAT THE ASSESSEE HAS DISCHARGED ITS ONUS U/S 68 OF THE ACT AND CONSEQUENTLY DELETED THE ADDITION MADE BY THE A SSESSING OFFICER. 5. BEFORE US, THE LD CIT-DR HAS SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE NATURE OF BUSINESS ACTIVITY CARRIED ON BY THE ALLEGED SHARE APPLICANT COMPANIES, SOURCE OF INVESTMENT MADE BY T HEM AND ALSO FAILED TO FURNISH BALANCE SHEET, P&L ACCOUNT ETC., THEREFO RE, THE SHARE APPLICATION MONEY CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE REMAINED UNEXPLAINED. THE ASSESSING OFFICER HAS SPEC IFICALLY ASKED THE ASSESSEE TO FURNISH COMPLETE DETAILS OF SHARE APPLI CATION MONEY RECEIVED FROM THE ALLEGED SHARE APPLICANTS AND ALSO FURNISHE D THE DETAILS INCLUDING THE SHARE APPLICATION FORMS RECEIVED ALONGWITH THE N AME OF THE APPLICANTS, SHARE ALLOTMENT REGISTER, COPIES OF SHARE CERTIFICA TE ISSUED, COPIES OF COMPLETE ITR FILED BY THE COMPANIES FOR LAST THREE Y EARS TO WHOM SHARES ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 6 HAVE BEEN ALLOTTED. SINCE THE ASSESSEE FAILED TO PR ODUCE THE REQUISITE DETAILS AND SUPPORTING DOCUMENTS, THEREFORE, THE AS SESSING OFFICER SPECIFICALLY ASKED THE ASSESSEE TO PRODUCE THE SHAR E APPLICANTS FOR VERIFICATION OF GENUINENESS OF THE TRANSACTIONS. THU S, THE LD CIT-DR HAS SUBMITTED THAT WHEN THE ASSESSING OFFICER HAS CONDU CTED A DUE AND PROPER ENQUIRY TO VERIFY THE CREDITWORTHINESS, GENUI NENESS OF THE TRANSACTIONS AND ASSESSEE FAILED TO PROVE THE CLAIM THEN THE ADDITION MADE BY THE ASSESSING OFFICER IS JUSTIFIED. THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT EXAMINATION OF THE SHA RE APPLICANTS. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS PRODUCED ALL THE SUPPORTING EVIDENCES WHICH INCLUDES THE SHARE APPLICATION FORM, COPY OF CERTIFICATE, COPY O F BOARD RESOLUTION, COPY OF MASTER DATA, COPY OF ITR, COPY OF PAN, COPY OF BA NK STATEMENT, COPY OF FINANCIAL STATEMENTS OF THE SHARE APPLICANT COMP ANIES, THEREFORE, THE ASSESSEE PRODUCED ALL SUPPORTING EVIDENCES TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHARE AP PLICANTS. HE HAS FURTHER CONTENDED THAT ALL THESE COMPANIES ARE ASSE SSED TO TAX AND THE TRANSFER OF SHARE APPLICATION MONEY PAID THROUGH BA NKING CHANNEL. THE AMOUNT INVESTED BY THESE COMPANIES IN SHARE CAPITAL IS DULY REFLECTED IN ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 7 THEIR BALANCE SHEETS AND THERE ARE REGULARLY ASSESS ED TO TAX. NEITHER IN THE SEARCH ANY MATERIAL IS FOUND NOR THE ASSESSING OFFI CER IN THE ASSESSMENT PROCEEDINGS HAS BROUGHT ANY UNDISCLOSED INCOME ROOT ED THROUGH THE SHARE CAPITAL. THE CREDITWORTHINESS OF THE SHARE APPL ICANT IS ALSO PROVED FROM THE NET WORTH OF THE COMPANIES AS EVIDENT FROM THE FINANCIAL STATEMENTS AND PARTICULARLY FROM THE BALANCE SHEETS OF THESE COMPANIES. THUS, THE LD AR HAS CONTENDED THAT THE ASSESSEE HAS DISCHARGED HIS ONUS U/S 68 OF THE ACT AND THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT SUSTAINABLE AND WAS RIGHTLY DELETED B Y THE LD. CIT(A). IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE F OLLOWING DECISIONS: (I) PCIT VS PARADISE INLAND SHIPPING (P) LTD. (2018) 255 TAXMAN 160 (SC). (II) PCIT VS M/S ACQUATIC REMEDIES PVT. LTD. ORDER D ATED 30/07/2018 (BOM) (HC) (III) DCIT VS. ALCON BIOSCIENCES (P) LTD. (2018) 164 DTR 193 (MUM) (TRIB). THUS, THE LD AR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS PRODUCED ALL DOCUMENTS WHICH ARE ALSO AVAILABLE WITH THE DIFFEREN T OFFICES SUCH AS ITR FILED BY THESE COMPANIES THEN THE GENUINENESS OF SH ARE APPLICATION CANNOT BE DOUBTED. ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 8 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE DETAILS OF SHARE APPLICATIO N MONEY RECEIVED BY THE ASSESSEE AS REPRODUCED IN THE EARLIER PART OF THIS ORDER REVEALS THAT THE ASSESSEE RECEIVED 1.30 CRORES AS SHARE APPLICATION MONEY FOR THE A.Y. 2013-14 AND RS. 1,96,15,000/- FOR THE A.Y. 2014-15. EXCEPT THREE COMPANIES BEING RACHNA VANIJYA PVT. LTD., SARGAM LE FINS PVT. LTD. AND VERSATILE COMMOTRADE PVT. LTD., THE REMAINING FOUR COMPANIES ARE COMMON AS SHARE APPLICANTS FOR BOTH THE ASSESSMENT YEARS. IT IS ALSO NOT IN DISPUTE THAT ALL THESE SEVEN COMPANIES ARE LOCAT ED AT KOLKATA AND ASSESSEE BEING A PRIVATE LIMITED COMPANY AT JAIPUR HAS TO ESTABLISH WITHOUT ANY DOUBT THAT THE KOLKATA BASED COMPANIES A RE GENUINE SHARE APPLICANTS OF THE ASSESSEE. IN CASE OF THE SHARE AL LOTMENT BY A PRIVATE COMPANY, IT IS AN UNDISPUTED FACT THAT THE SHARES A RE ALLOTTED ONLY TO THE KNOWN PARTIES TO THE EXISTING OWNERS OF THE COMPANY A ND EVEN OTHERWISE A STRANGER CANNOT INVEST IN A PRIVATE LIMITED COMPA NY HELD BY AN INDIVIDUAL OR FAMILY OR THE SHARE HOLDERS OF A SINGLE FAMILY. FROM PERUSAL OF THE BANK STATEMENT OF M/S CANNY PROPERTIES PVT. LTD. IT IS C LEAR THAT AN AMOUNT OF RS. 10.00 LACS WAS DEPOSITED JUST PRIOR TO THE TRANS FER OF THE SAID MONEY TO THE ASSESSEE. THESE FACTS ARE AVAILABLE AT PAGE N O. 7 OF THE PAPER BOOK AND THE BANK STATEMENT REVEALS THAT THERE IS A DEPO SIT OF EQUAL AMOUNT JUST PRIOR TO THE TRANSFER OF THE SAID AMOUNT OF RS . 10.00 LACS ON ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 9 25/3/2013. SIMILARLY THE BANK STATEMENT OF LIBERAL PROPERTIES PVT. LTD. AT PAGE 68 OF THE PAPER BOOK REVEALS THAT RS. 10.00 LA CS WAS DEPOSITED ON THE SAME DATE WHEN THE PAYMENT OF SHARE APPLICATION MONEY WAS TRANSFERRED TO THE ASSESSEE ON 21/3/2013. IN CASE O F MAHAVIR FINCON PVT. LTD., AGAIN IT IS MANIFEST FROM THE BANK STATEMENT AT PAGE 115 OF THE PAPER BOOK THAT RS. 20.00 LACS WAS DEPOSITED ON THE SAME DATE WHEN THE SHARE APPLICATION WAS PAID TO THE ASSESSEE. THE BANK STATEMENT OF M/S SURICHI DISTRIBUTORS PVT. LTD. SHOWS THE DEPOSIT OF RS. 10.00 LACS IMMEDIATELY PRIOR TO THE PAYMENT OF SHARE APPLICATI ON MONEY TO THE ASSESSEE ON 14/3/2013. THE BANK STATEMENT OF VERSATI LE COMMOTRADE PVT. LTD. ALSO MANIFEST THE FACT OF DEPOSIT OF RS. 10.00 LACS ON 15/3/2013 AND RS. 15.00 LACS ON 19/3/2013 JUST PRIOR TO TRANSFER OF THE EQUAL AMOUNTS ON THE SAME TWO DATES TO THE ASSESSEE AS SHARE APPLICAT ION MONEY. THEREFORE, IT IS CLEAR THAT THE APPLICATION MONEY RE CEIVED FROM THE A.Y. 2013-14 FROM THESE FIVE COMPANIES WAS TRANSFERRED T O THE ASSESSEE SUBSEQUENT TO THE EQUAL AMOUNTS OF MONEY WAS DEPOSIT ED IN THE RESPECTIVE BANK ACCOUNTS OF THESE COMPANIES AT KOLK ATA. WE FURTHER NOTE THAT A SIMILAR FACT AND PATTERN OF DEPOSIT OF AMOUN T IS ALSO FOUND FROM THE BANK STATEMENTS OF THESE COMPANIES FOR THE A.Y. 201 4-15. IN CASE OF CANNY PROPERTIES PVT. LTD., THERE WAS A DEPOSIT OF R S. 20.00 LACS ON THE SAME DAY JUST PRIOR TO THE TRANSFER OF MONEY OF EQU AL AMOUNT TO THE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 10 ASSESSEE ON 05/4/2013. SIMILARLY IN THE CASE OF LIB ERAL PROPERTIES PVT. LTD., AN AMOUNT OF RS. 20.00 LACS WAS DEPOSITED JUST PRIOR TO THE TRANSFER OF MONEY TO THE ASSESSEE ON 05/4/2013. IN CASE OF M AHAVIR FINCON PVT. LTD., IT IS ONLY PAYMENT OF RS. 1.15 LACS AND THERE FORE, NO SUCH SMALL DEPOSIT WAS MADE ON THAT DATE BUT THE DEPOSIT WAS THE RE PRIOR TO THE PAYMENT OF RS. 20.0 LACS FOR THE A.Y. 2013-14. IN C ASE OF RACHNA VANIJYA PVT. LTD. AND SARGAM LEFINS PVT. LTD., AMOUNT OF RS . 20.00 LACS EACH WAS DEPOSITED JUST PRIOR TO THE PAYMENT TO THE ASSESSEE OF THE EQUAL AMOUNTS ON 06/4/2013 AND 08/4/2013 RESPECTIVELY. THE BANK ST ATEMENT OF SURICHI DISTRIBUTORS PVT. LTD. FURTHER REVEALS THAT THERE WA S A DEPOSIT OF TOTAL AMOUNT OF RS. 70.00 LACS ON THREE OCCASIONS ON 08/4 /2013, 10/4/2013 AND 10/4/2013 WHEN THE CORRESPONDING AMOUNT WAS PAID TO THE ASSESSEE. THUS, THERE IS AN IDENTICAL PATTERN OF DEPOSITS MADE IN THE BANK ACCOUNTS OF ALL SHARE APPLICANT COMPANIES JUST PRIOR TO THE PAYMENT TO THE ASSESSEE WHICH CLEARLY REVEALS THE FACT ON RECORD THAT THE TR ANSACTIONS ARE NOT FREE FROM DOUBT OR TAINTED WITH MODUS OPERANDI OF CONVERT ING THE UNACCOUNTED INCOME OF THE ASSESSEE INTO SHARE APPLICATION MONEY . HENCE, THE BURDEN WAS SHIFTED TO THE ASSESSEE TO PRODUCE FURTHER EVIDE NCE TO CLEAR THE SHADOW OF BOGUS TRANSACTIONS. FAILURE ON THE PAR T OF THE ASSESSEE TO BE ESTABLISHED THE GENUINENESS OF THE TRANSACTIONS BEYOND ANY DOUBT WOULD AMOUNT NON-DISCHARGE OF THE BURDEN AND C ONSEQUENTLY IT ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 11 CANNOT BE SAID THAT THE ASSESSEE HAS PROVED ITS CLA IM. THE ONUS OF PROVING THE CLAIM PRIMARILY LIES ON THE ASSESSEE AND ONCE T HE ASSESSEE BRINGS THE PRIMARY EVIDENCE ON RECORD IN SUPPORT OF CLAIM, THE BURDEN IS SHIFTED ON THE ASSESSING OFFICER TO DISPROVE THE EVIDENCE PROD UCED BY THE ASSESSEE. IN CASE, THE ASSESSING OFFICER HAS BROUGHT ON RECOR D THE COUNTER FACTS OR EVIDENCE THEN THE BURDEN IS AGAIN SHIFTED ON THE AS SESSEE TO PROVE THE TRANSACTION BEYOND ANY DOUBT. HENCE, THE DISCHARGIN G OF PRIMARY BURDEN ITSELF IS NOT ENOUGH WHEN THE ASSESSING OFFICER HAS MADE OUT A CASE FROM THE BANK STATEMENTS THAT THERE IS A DEPOSIT OF EQUA L AMOUNT JUST PRIOR TO THE TRANSFER OF THE MONEY BY THESE COMPANIES TO THE ASSESSEE THEN THE ASSESSEE WAS REQUIRED TO PROVE AND CLEAR THE SAID DO UBT ABOUT THE SOURCE OF PAYMENT MADE BY THESE SHARE APPLICANT COMPANIES. THEREFORE, WE FIND THAT THIS MATTER REQUIRES A THOROUGH AND DEEP INVES TIGATION OF FACT AND TO FIND ABOUT THE TRAIL OF MONEY AS IT WAS DEPOSITED IN THE BANK ACCOUNTS OF THE SHARE APPLICANT COMPANIES JUST PRIOR TO THE PAY MENT TO THE ASSESSEE. FURTHER THE STATUS OF THE ALLOTMENT OF SHARE TO THE SE SHARE APPLICANTS IS ALSO TO BE EXAMINED IN THE CONTEXT OF THE PRESENT H OLDING OF THE SAME. IT IS RELEVANT TO VERIFY THE HOLDING OF THE ALLEGED AL LOTMENT OF THE SHARES OF THE ASSESSEE COMPANY BY ALL THESE SEVEN COMPANIES A ND IN CASE THE SHARES WERE FINALLY TRANSFERRED BACK TO THE EXISTING PROMOTERS OR SHARE HOLDERS OF THE ASSESSEE COMPANY OR THE FAMILY MEMBE RS OR CLOSED ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 12 RELATIVES OF THE PROMOTERS OF THE ASSESSEE COMPANY THEN IT WILL GO AGAINST THE ASSESSEE. ACCORDINGLY WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER TO CARRY OUT A PROPER INVESTIGATI ON AND TRACE OUT THE TRAIL OF THE MONEY FOUND DEPOSITED IN THE BANK ACCOUNT OF THE SHARE APPLICANTS AND FURTHER THE PRESENT STATUS OF THE HOLDING OF TH OSE SHARES ALLOTTED TO THE SHARE APPLICANT COMPANIES. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN APPROPRIATE OPPORTUNITY OF HEARING. 8. SINCE THIS ISSUE RAISED BY THE REVENUE IN BOTH T HE ASSESSMENT YEARS IS COMMON, THEREFORE, THE FINDINGS GIVEN FOR THE A. Y. 2013-14 SHALL APPLY MUTATIS MUTANDIS FOR THE CASE OF A.Y. 2014-15. ACCO RDINGLY, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL P URPOSES ONLY. 9. IN THE C.O. OF THE ASSESSEE FOR THE A.Y. 2013-14 , THE ASSESSEE THE RAISED ONLY THE ADDITIONAL GROUND WHICH WAS NOT RAISE D EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(A) AS UNDER: THE LD. A.O. AS WELL AS THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN MAKING/CONFIRMING VARIOUS ADDITIONS DEHORS ANY I NCRIMINATING MATERIAL FOUND IN SEARCH EVEN WHEN THE ASSESSMENT P ROCEEDINGS FOR THE YEAR UNDER CONSIDERATION WAS NOT PENDING AS ON THE DATE OF SEARCH. 10. WE HAVE HEARD THE LD AR AS WELL AS THE CIT-DR ON THE MAINTAINABILITY OF THE ADDITION GROUND RAISED IN TH E C.O. 37/JP/2017 FOR THE A.Y. 2013-14. IT IS PERTINENT TO NOTE THAT SUB- SECTION(4) OF SECTION 253 OF THE ACT CONTEMPLATES THE FILING OF C.O. BY EITHE R OF THE PARTIES ON ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 13 RECEIPT OF THE NOTICE OF THE APPEAL FILED BY THE OT HER PARTY AGAINST THE ORDER OF THE LD. CIT(A). HOWEVER, THE SCOPE OF FILIN G THE C.O. IS LIMITED ONLY AGAINST SUCH ORDER OR ANY PART THEREOF. FOR RE ADY REFERENCE, WE QUOTE THE PROVISIONS OF SUB-SECTION (4) OF SECTION 253 OF THE ACT AS UNDER: SECTION 253 SUB-SECTION (4): THE ASSESSING OFFICER OR THE ASSES SEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE C OMMISSIONER (APPEALS), HAS BEEN PREFERRED UNDER SUB-SECTION (1) OR SUB-SECTION (2) BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY NOT HAVE APPEALED AGAIN ST SUCH ORDER OR ANY PART THEREOF, WITHIN THIRTY DAYS OF THE RECEIPT OF THE N OTICE, FILE A MEMORANDUM OF CROSS- OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER, AGAI NST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS), AND SUCH MEMORANDUM SHALL B E DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE AN APPEAL PRESENTE D WITHIN THE TIME SPECIFIED IN SUB- SECTION (3).] IT IS ADMITTED FACT THAT THE ASSESSEE DID NOT RAISE THIS ISSUE BEFORE THE AUTHORITIES BELOW, THEREFORE, THE SCOPE OF SUB-SECTI ON (4) OF SECTION 253 CANNOT BE EXTENDED TO THE SCOPE OF FILING OF THE AP PEAL AS PER SUB-SECTION (1) OF SECTION 153 OF THE ACT. THERE IS NO DISPUTE T HAT ONCE THE C.O. IS FILED AND ADMITTED THEN THE SAME HAS TO BE ADJUDICA TED IN THE MANNER AS AN APPEAL IS PRESENTED. HOWEVER, THE SCOPE OF C.O. C ANNOT BE BEYOND THE ORDER OF THE LD. CIT(A) WHICH IS AGAINST THE PARTY WHO IS FILING THE C.O.. ONCE A PARTICULAR ISSUE WAS NOT RAISED BEFORE THE LD . CIT(A) THEN THE QUESTION OF DECIDING THE SAME AGAINST THE ASSESSEE DOES NOT ARISE. IN A RECENT DECISION OF THE DELHI BENCHES OF THE TRIBUNAL DATED 13/11/2018 IN THE CASE OF ITO VS. M/S MODERN HOME CARE PRODUCTS L IMITED IN ITA NO. ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 14 2595/DEL/2002 AND C.O. NO. 192/DEL/2007, THE TRIBUNA L HAS CONSIDERED THE SCOPE OF SUB-SECTION (4) OF SECTION 253 OF THE ACT FOR FILING THE C.O. ON THE ISSUE WHICH WAS NOT RAISED BEFORE THE AUTHORITIE S BELOW IN PARA 20 TO 28 AS UNDER: 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS. ACCORDING TO THE PROVISIONS OF SECTION 253 (1) ANY ASSESSEE AGGRIEVED BY THE ORDERS OF THE SPECIFIED AUTHORITIE S MAY FILE AN APPEAL BEFORE THE TRIBUNAL. THEREFORE THERE HAS TO BE AN ORDER BY WHICH THE ASSESSEE IS AGGRIEVED WITH AND T HEREFORE SUCH GRIEVANCE OF THE ASSESSEE GIVES THE RIGHT TO T HE ASSESSEE TO FILE AN APPEAL BEFORE THE TRIBUNAL. RIG HT OF FILING OF THE APPEAL IS ALSO GRANTED TO THE LEARNED ASSESS ING OFFICER THROUGH THE OFFICE OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER OF INCOME TAX UNDER SECTION 253 ( 2) O F THE ACT. BUT ONLY CONDITION IS THAT THEY MUST HAVE AN O BJECTION TO ANY ORDER PASSED BY THE SPECIFIED AUTHORITY. THE REFORE IT IS NECESSARY THAT THE ORDER MUST BE PASSED BY THE S PECIFIED AUTHORITY AND THE LEARNED ASSESSING OFFICER MUST HA VE OBJECTION AGAINST THAT ORDER THEN ONLY THE APPEAL C AN BE FILED BY THE LEARNED ASSESSING OFFICER. ACCORDING T O THE PROVISIONS OF SECTION 253 (2) OF THE ACT, THE PRINC IPAL COMMISSIONER OR COMMISSIONER, IF HE OBJECTS TO ANY ORDER PASSED BY COMMISSIONER APPEALS, MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. IF THE APPEAL IS FILED BY THE ASSESSEE THEN REVENUE IS A RESPONDENT AND IF TH E APPEAL IS FILED BY THE REVENUE THEN ASSESSEE IS A RESPONDE NT, AND THE RESPONDENT IN BOTH THE SITUATION IS GRANTED ARR IVED TO FILE CROSS OBJECTION IN THE APPEAL FILED BY THE APPELLAN T. ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 15 ACCORDING TO THE PROVISIONS OF SECTION 253 (4), THE ASSESSEE ON RECEIPT OF NOTICE THAT APPEAL AGAINST THE ORDER OF THE COMMISSIONER APPEALS HAS BEEN PREFERRED BY THE COMMISSIONER, MAY FILE A MEMORANDUM OF CROSS OBJECT IONS IN THE PRESCRIBED MANNER AGAINST ANY PART OF THE OR DER OF THE COMMISSIONER (APPEALS). UNDOUBTEDLY, THE GROUND S OF CROSS OBJECTION CANNOT BE LIMITED TO THE GROUNDS RA ISED IN THE APPEAL OF THE REVENUE. HOWEVER, THE QUESTION THA T ARISES IS THAT WHETHER IN THE CROSS OBJECTION THE A SSESSEE OR REVENUE (AO) CAN RAISE AN ISSUE, WHICH WAS NOT AT A LL A MATTER OF DISPUTE BEFORE THE ASSESSING OFFICER OR B EFORE THE 1 ST APPELLATE AUTHORITY. THE PROVISIONS OF SECTION 253 (4) AUTHORIZES THE OTHER PARTY TO FILE CROSS OBJECTION AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS). TH EREFORE, IT IS APPARENT THAT THE ISSUE MUST HAVE BEEN DECIDE D IN THE ORDER OF THE 1 ST APPELLATE AUTHORITY, THEN ONLY THE ASSESSEE CAN FILE A CROSS OBJECTION. IN THE PRESENT CASE, TH E ASSESSEE HIMSELF HAS OFFERED 1.5 CRORES AS INCOME OF THE A SSESSEE. IT WAS NOT AGITATED BEFORE THE ASSESSING OFFICER TH AT SUCH INCOME IS A CAPITAL RECEIPT. IT WAS ALSO NOT AGITAT ED BEFORE THE COMMISSIONER APPEALS THAT SUCH INCOME IS NOT CHARGEABLE TO TAX. IN THE CROSS OBJECTION, ASSESSEE HAS RAISED THAT ISSUE. THEREFORE, APPARENTLY THE TAXABI LITY OF 1.5 CRORES AS INCOME OF THE ASSESSEE WAS NOT AT ALL PAR T OF THE ORDER OF THE COMMISSIONER APPEALS. HENCE IT CANNOT BE CONSIDERED IN CROSS OBJECTION. HENCE SAME CANNOT BE RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE, WHEN IT IS NOT DISPUTED BEFORE THE ANY OF THE LOWER AUTHORITIES. 21. THE INCOME TAX ACT ITSELF AS LAID DOWN REMEDY FOR FORGONE CLAIM BY THE ASSESSEE AND THE FORGONE REVENUE BY TH E ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 16 LEARNED ASSESSING OFFICER. THE RESPECTIVE PROVISION S OF SECTION 263 OF THE INCOME TAX ACT WHEREIN THE ORDER PASSED BY THE ASSESSING OFFICER IS FOUND TO BE ERRONEOUS I N PREJUDICIAL TO THE INTEREST OF THE REVENUE CAN BE R EVISED BY THE LEARNED CIT. SIMILARLY THE PROVISIONS OF SECTIO N 264 OF THE INCOME TAX ACT PROVIDES THAT IF ANY WHICH IS PR EJUDICIAL TO THE ASSESSEE CAN BE REVISED BY CIT. THEREFORE FO R SUCH EVENTUALITY AS IT IS RAISED BEFORE THE US THE RELEV ANT PROVISIONS ARE THE PROVISIONS OF SECTION 264 OF THE INCOME TAX ACT AND NOT IN APPEAL BEFORE THE COORDINATE BEN CH. UNDOUBTEDLY, SUCH APPLICATION UNDER SECTION 264 OF THE INCOME TAX ACT CAN BE MADE BELATEDLY WITH THAT REQU EST FOR CONDONATION OF DELAY. BUT CERTAINLY SAME CANNOT BE AGITATED BY THE ASSESSEE BEFORE US IN CROSS OBJECTION. 22. EVEN OTHERWISE IF THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE IS ACCEPTED IT WILL MAKE THE PROVISI ONS OF SECTION 263, 264 OF THE INCOME TAX ACT REDUNDANT IF THE ASSESSMENT IS SUBJECT MATTER OF APPEAL. CLEARLY THE PROVISIONS OF SECTION 263 AND 264 PROHIBITS THE ISS UES THAT ARE ALREADY PENDING IN APPEAL. 23. THE LEARNED THAT AUTHORISED REPRESENTATIVE HAS RELIED UPON THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN C ASE OF CIT VS BHARAT THE GENERAL REINSURANCE CO LTD (1971) (81 ITR 303) (DEL). WE HAVE CAREFULLY CONSIDERED THAT D ECISION. THE FACT OF THE CASE WAS THAT THAT ASSESSEE INCLUDE D THE INCOME IN THE RETURN FOR THE ASSESSMENT YEAR 1958 59 AND ON APPEAL, THE TRIBUNAL HELD THAT INCOME FROM DIVID ENDS WAS NOT ASSESSABLE IN THE ASSESSMENT YEAR 1958 59, BU T IT WAS ASSESSABLE IN THE ASSESSMENT YEAR 1953 54. HOWEVER , IN THAT PARTICULAR CASE THE ISSUE WAS BEFORE THE APPEL LATE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 17 ASSISTANT COMMISSIONER WHERE THE ASSESSEE OBJECTED TO THE INCLUSION OF THE DIVIDEND INCOME AS INCOME PERTAINI NG TO THE RELEVANT PREVIOUS YEAR AND ALSO OBJECTED TO THE INC REASING THE QUANTUM OF DIVIDEND RECEIVED BY ADOPTING THE MA RKET VALUE OF THE SPECIE IN WHICH IT HAD BEEN RECEIVED. THE APPELLATE ASSISTANT COMMISSIONER REJECTED BOTH THE CONTENTIONS. THEREFORE, IN THAT PARTICULAR DECISION , THERE WAS AN ISSUE, WHICH WAS ALREADY DECIDED BY THE APPELLAT E ASSISTANT COMMISSIONER, AND THEREFORE THE ASSESSEE COULD AGITATE BEFORE THE TRIBUNAL. FURTHERMORE THE DECISI ON CITED BEFORE US DOES NOT DEAL WITH THE RIGHT OF THE ASSES SEE UNDER SECTION 253 (4) OF THE ACT. THEREFORE, THE RELIANCE PLACED BY THE LEARNED AUTHORISED REPRESENTATIVE ON THAT DECIS ION IS IMPROPER FOR THE ISSUE BEFORE US. 24. THE LEARNED AUTHORISED REPRESENTATIVE HAS ALSO RELIED UPON THE DECISION OF THE HONOURABLE BOMBAY HIGH COURT IN CASE OF B R BAMASI VERSUS COMMISSIONER OF INCOME TAX (1972) (83 ITR 223) (BOM). ON CAREFUL READING OF THAT DECISION IT SAYS THAT THAT THE NEW GROUND OF THE APPEAL WOULD SERVE ONLY AS A WEAPON OF DEFENCE AGAINST THE APPEAL. IN THE PRES ENT CASE IT IS NOT AGAINST THE APPEAL OF THE REVENUE THAT AS SESSEE IS TAKING A DIFFERENCE BUT ASSESSEE IS TAKING A GROUND WHICH WAS NOT AT ALL MATTER OF DISPUTE BEFORE ANY OF THE LOWER AUTHORITIES. IN VIEW OF THIS THE ABOVE DECISIONS RE LIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE DOES NOT S UPPORT THE CASE OF THE ASSESSEE. 25. THE ANOTHER DECISION RELIED UPON BY THE LEARNE D AUTHORISED REPRESENTATIVE IS CIT VERSUS PURBANACHAL PARIBAHAN GOSHTHI [234 ITR 663] WHERE THE HONOURABLE COURT HAS HELD T HAT A COMBINED READING OF SECTION 253(4) OF THE INCOME-TA X ACT, ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 18 1961, AND RULE 22 OF THE INCOME-TAX (APPELLATE TRIB UNAL) RULES, 1963, MAKES IT ABUNDANTLY CLEAR THAT ANY PAR TY AGGRIEVED AGAINST THE ORDER OF THE APPELLATE AUTHOR ITY CAN FILE A MEMORANDUM OF CROSS OBJECTIONS AGAINST ANY P ART OF THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS). THE CROSS- OBJECTIONS NEED NOT BE CONFINED TO THE POINTS TAKEN BY THE OPPOSITE PARTY IN THE MAIN APPEAL. THE WORDS ''AGAI NST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER'' ARE WIDE ENOUGH TO COVER A SITUATION WHERE THE REVENUE HAS CHALLENGED THE ORDER OF THE DEPUTY COMMISSIONER (AP PEALS) ON THE MERITS REGARDING THE QUANTUM OF THE TAX LIAB ILITY, BUT THE ASSESSEE IN CROSS-OBJECTIONS CAN CHALLENGE THE ORDER OF THE DEPUTY COMMISSIONER NOT ONLY ON THE QUANTUM OF TAX AMOUNT BUT ON OTHER POINTS ALSO. ON A POINT OF LAW THERE IS NO DIFFERENCE BETWEEN AN APPEAL AND A CROSS-OBJECTI ON. THE ONLY DIFFERENCE IF AT ALL THERE IS ANY IS THAT AN A PPEAL CAN BE PREFERRED WITHIN 60 DAYS FROM THE DATE OF RECEIPT O F THE ORDER WHEREAS A CROSS-OBJECTION CAN BE FILED WITHIN A PERIOD OF 30 DAYS OF THE DATE OF SERVICE OF THE APPEAL BY THE OPPOSITE PARTY. ON CAREFUL READING OF THE ABOVE DEC ISION IT IS APPARENT THAT THE CONTENTION OF THE REVENUE IN THAT APPEAL WAS THAT THAT THE ASSESSEE IN FILING CROSS OBJECTIO NS SHOULD HAVE TAKEN ONLY THE ISSUES WHICH HAVE BEEN RAISED B Y THE REVENUE IN ITS APPEAL IN THE CROSS OBJECTION OF THE ASSESSEE. FURTHER IN THAT PARTICULAR CASE THE ASSESSEE IN CRO SS OBJECTION RAISE THE APPLICABILITY OF THE REGISTRATI ON OF THE FIRM HOLDING WHEN EITHER ONE OF THE ENTITIES WHICH WAS THE SUBJECT MATTER OF DISPUTE BEFORE THE ASSESSING OFFI CER. THEREFORE, THE ASSESSMENT IN THAT PARTICULAR CASE W AS MADE HOLDING THE ASSESSEE FORMER NOT ENTITLED TO REGISTR ATION AS WELL AS MAKING THE ADDITION. BEFORE THE REVENUE THE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 19 ASSESSEE IN CROSS OBJECTION CHALLENGED THE ISSUE OF REGISTRATION OF THE FIRM. THEREFORE IN THAT PARTICU LAR CASE BOTH THE ISSUES WERE BEFORE THE ASSESSING OFFICER E MANATING FROM THE ORDER OF THE AO. HENCE THE FACTS OF THAT CA SE ARE QUITE DISTINCT FROM THE FACTS BEFORE US. 26. THE NEXT DECISION RELIED UPON BY THE LEARNED A UTHORISED REPRESENTATIVE IS OF ASAM COMPANY INDIA LTD VERSUS COMMISSIONER OF INCOME TAX (2002) 256 ITR 423. THE FACTS IN THAT PARTICULAR CASE IS THAT IN THE RETURN OF IN COME THE APPLICANT COMPANY CLAIMED DEDUCTION UNDER SECTION 3 5B OF THE ACT IN RESPECT OF WAREHOUSE CHARGES PAID ABROAD . IN THE ASSESSMENT THE LEARNED ASSESSING OFFICER ALLOWED TH E WEIGHTED DEDUCTION OF WAREHOUSE CHARGES UNDER SECTI ON 30 5B (1) (B) (IV) OF THE ACT READ WITH RULE 6AA OF TH E INCOME TAX RULES 1962. THE COMMISSIONER REVISED THE ORDER UNDER SECTION 263 AND WITHDREW THE SAID DEDUCTION. THE AS SESSEE FILED AN APPEAL BEFORE THE ITAT AGAINST THE ORDER U NDER SECTION 263 OF THE INCOME TAX ACT. THE TRIBUNAL DIS MISS THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF T HE COMMISSIONER. IN THE PRESS ASSESSMENT PROCEEDINGS T HE ASSESSEE OBJECTED TO THE WITHDRAWAL OF WEIGHTED DED UCTION ON SEVERAL GROUNDS. THE LEARNED AO REJECTED THE CON TENTION OF THE ASSESSEE AND FURTHER APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE COMMISSIONER APPEALS. THE COMMISSIONER ALLOWED THE CLAIM OF THE ASSESSEE AND THEREFORE THE REVENUE WAS BEFORE THE TRIBUNAL. FURT HER THE TRIBUNAL REJECTED 1 OF THE CONTENTION OF THE ASSESS EE WITH RESPECT TO THE DISALLOWANCE AS THE ASSESSEE DID NOT FILE ANY APPEAL OR CROSS OBJECTION BUT THE REVENUE FILED THE APPEAL. THEREFORE, IN THAT PARTICULAR CASE THE DISPUTE WAS BEFORE THE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 20 ASSESSING OFFICER, THE LEARNED COMMISSIONER APPEALS AND EVEN INTO 263 PROCEEDINGS. THESE ARE NOT THE FACTS BEFORE US. BEFORE US THE AMOUNT WAS NOT DISPUTED AT ALL BE FORE ANY OF THE LOWER AUTHORITIES. HENCE RELIANCE PLACED BY T HE LEARNED AUTHORISED REPRESENTATIVE ON THIS DECISION IS MISPLACED. 27. AS THE ASSESSEE HAS RAISED THE ISSUE IN CROSS OBJECTION WHICH WAS NOT THE SUBJECT MATTER OF DISPUTE BEFORE THE DL AO AND ALSO NOT THE SUBJECT MATTER OF APPEAL BEFORE THE 1 ST APPELLATE AUTHORITY NOT BEFORE THE ASSESSING AUTHOR ITY AND THEREFORE LOOKING AT THE PROVISIONS OF SECTION 253 (4) OF THE ACT, THEREFORE , ASSESSEE CANNOT AGITATE THE TAXABI LITY OF NON COMPETE FEES FOR THE 1 ST TIME BEFORE THE TRIBUNAL AS IN NO PART OF THE ORDER OF COMMISSIONER OF APPEALS HAS CO NSIDERED AND DECIDED THE ISSUE OF TAXABILITY OF NON COMPETE FEES. 28. ACCORDINGLY, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. THEREFORE, HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE, WHEN THE ASSESSEE HAS NOT RAISED THIS ISSUE BE FORE THE AUTHORITIES BELOW THEN THE SAME CANNOT BE RAISED IN THE C.O. AS THE SCOPE OF C.O. IS LIMITED ONLY TO CHALLENGE THE ORDER OF THE LD. CIT(A ) OR PART OF THE LD. CIT(A) WHICH IS AGAINST THE ASSESSEE. HENCE, THE ADDI TIONAL GROUND RAISED IN THE C.O. NO. 37/JP/2017 IS DISMISSED. 11. IN C.O. 38/JP/2017 FOR THE A.Y. 2014-15, THE AS SESSEE HAS RAISED FOLLOWING GROUNDS: ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 21 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF EXPENDITURE OF RS. 1,85,834/- INCUR RED BY THE ASSESSEE FOR INCREASING THE AUTHORIZED SHARE CAPITA L OF THE COMPANY BY TREATING THE SAME AS CAPITAL EXPENDITURE . 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.70,500/- BY CONSIDERING THE DIFFEREN CE IN THE ACCOUNT STATEMENT WITH M/S NAHAR FILLING STATION AS UNDISCLOSED INCOME OF THE ASSESSEE. HE HAS FURTHER ERRED IN NOT DIRECTING THE AO TO EXCLUDE THIS ALLEGED UNDISCLOSED INCOME FROM THE INCOME OF THE NEXT YEAR WHEN THE SAME WAS OFFERED FOR TAX. 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF RS.50,885/- ON ACCOUNT OF INTEREST PAID ON LATE PAYMENT OF TDS. 4. THE ASSESSEE CARVES RIGHT TO ADD, ALTER, AMEND, AND MODIFY ANY OF THE GROUND OF APPEAL. 5. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 12. GROUND NO. 1 OF THE C.O. IS REGARDING THE DISAL LOWANCE OF EXPENDITURE INCURRED FOR INCREASING THE AUTHORIZED SHARE CAPITAL OF THE ASSESSEE COMPANY TRADING THE SAME AS CAPITAL EXPEND ITURE. 13. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS INCURRED EXPENDITURE FOR INCREASING IN AUTHORIZED C APITAL FROM RS. 2.00 CRORES TO RS. 4.75 CRORES. IN CONSEQUENCE THEREOF, THE PAID UP CAPITAL WAS ALSO INCREASED ALMOST DOUBLE. THE ONLY OBJECTION RAI SED BY THE LD AR AGAINST THE DISALLOWANCE IS THAT THERE WAS NO INCRIMI NATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND THEREFORE, THE DISA LLOWANCE MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. IN SUPPORT OF HIS CONTENTION, HE HAS ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 22 RELIED UPON THE VARIOUS DECISIONS INCLUDING THE DEC ISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2012-13 IN ITA NO. 477/JP/2018 DATED 07/09/2018. 14. ON THE OTHER HAND, THE LD. CIT-DR HAS SUBMITTED THAT THESE ASSESSMENT YEARS UNDER CONSIDERATION WERE NOT COMPLE TED AS ON THE DATE OF SEARCH AND THEREFORE, THE DECISION OF THE TRIBUNA L IN ASSESSEES OWN CASE FOR THE A.Y. 2012-13 IS NOT APPLICABLE. 15. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD WE FIND THAT FOR THE A.Y. 2013-14 IT WAS NOT PENDING AS ON THE DATE OF SEARCH AS THE LIMITATION FOR ISSUING THE NOTICE U/S 143(2) OF THE ACT HAD EXPIRED BEFORE THE DATE OF SEARCH AND T HEREFORE, THE DECISION OF THE TRIBUNAL FOR THE A.Y. 2012-13 IS APPLICABLE F OR THE A.Y. 2013-14 ALSO. WE FIND THAT THE TRIBUNAL HAS CONSIDERED THIS ISSUE IN PARA 4 OF THE SAID ORDER AS UNDER: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) ON THE RETURN OF INCOME FILED BY THE ASSESSEE UNDER SECTION 139(1) WAS EXPIRED ON 30 TH SEPTEMBER, 2014. THEREFORE, ON THE DATE OF SEARCH ON 10.10.2014 THE ASSESSMENT ON THE ORIGINAL RETURN OF INCOME WAS NOT PENDING. HENCE IT IS A CASE OF REASSESSMENT OF TOTAL INCOME OF THE ASSESSEE AND NOT THE CASE OF ABATED ASSESSMENT AND CONSEQUENTLY REGULAR ASSESSMENT UNDER SECTION 153A OF THE ACT. ONCE IT IS A CASE OF ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 23 REASSESSMENT UNDER SECTION 153A PURSUANT TO THE SEA RCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT, THEN THE ADDIT ION IN THE TOTAL INCOME OF THE ASSESSEE CAN BE MADE ONLY ON THE BASIS OF IN CRIMINATING SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH. THIS IS SUE HAS BEEN CONSIDERED AND DECIDED BY THE VARIOUS HIGH COURTS I NCLUDING THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL (INDIA) VS. ACIT (SUPRA) WHEREIN THE HONBLE HIGH COURT HAS HELD IN PARA 21 TO 26 AND 29 AS UNDER :- 21. THE ARGUMENT RAISED BY THE COUNSEL FOR THE APPELLA NT TO THE EFFECT THAT ONCE A NOTICE UNDER SECTION 153A OF THE ACT IS ISSUED, THE ASSESSMENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND ASSESSEE HAS NO WARRANT IN LAW. 22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN REA DING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROV ISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDE R SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATE D IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIG INAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INC OME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMI NATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST T IME UNDER SECTION 153A OF THE ACT IS NOT COMPLETED, THE CASE IN HAND, HAS TO BE C ONSIDERED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRIMINATING IS FOUND. IN SUCH A CASE THOUGH SECTION 153A OF THE AC T WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL I NCOME OF THE PERSON IS REQUIRED TO BE DONE, HOWEVER, THE SAME WOULD IN THA T CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAV E TO BE REITERATED. 23. THE RELIANCE PLACED BY THE COUNSEL FOR THE APPELLA NT ON THE CASE OF ANIL KUMAR BHATIA (SUPRA) ALSO DOES NOT HELP THE CASE OF THE ASSESSEE. THE RELEVANT EXTRACT OF THE SAID JUDGMENT READS AS UNDER: '19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HA VE ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO T HE ASSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHE R SIGNIFICANT FEATURE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 24 OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EM POWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSES SING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOT AL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESP ECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND T HE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT T O BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 14 3(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN E XISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF TH E SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROC EEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE TO THE UNDISCLOSED IN COME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IM POSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEE N REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF S ECTION 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTIO N 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLIC ABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTIO N TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERE D BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSE SSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRU STED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHO SE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN T HE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSM ENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. I N SUCH A CASE, THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A S AYS THAT SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE ASSESSMENT ORDE RS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE U NDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE AS SESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMI NING THE TOTAL INCOME ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 25 OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF A FFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDING THE A SSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROV IDED IN THE SECOND PROVISO OF SUB-SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH AR E PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION ' SHALL ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE A SSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS W ELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQU ISITION. THE POSITION THUS EMERGING IS THAT THE SEARCH IS INITIATED OR RE QUISITION IS MADE, THEY WILL ABATE MAKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INC OME WOULD ALSO BE INCLUDED, BUT IN CASE WHERE THE ASSESSMENT OR REASS ESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS H AVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH OR DERS SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, TH ERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE ASSESSMENTS O R REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 14 7, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DE TERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR T O THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMI NED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESS MENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIE R PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESS MENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED OR THE REQUISI TION WAS MADE.' (EMPHASIS SUPPLIED) 24. THE SAID JUDGMENT ALSO IN NO UNCERTAIN TERMS HOLDS THAT THE REASSESSMENT OF THE TOTAL INCOME OF THE COMPLETED A SSESSMENTS HAVE TO BE MADE TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH AND THE INCOME THAT ESCAPED ASSESSMENTS ARE REQUIRED TO BE CLUBBED TOGETHER WITH THE TOTAL INCOME DETERMINED I N THE ORIGINAL ASSESSMENT AND ASSESSED AS THE TOTAL INCOME. THE OB SERVATIONS MADE IN THE JUDGMENT CONTRASTING THE PROVISIONS OF DETERMIN ATION OF UNDISCLOSED INCOME UNDER CHAPTER XIVB WITH DETERMINATION OF TOT AL INCOME UNDER SECTIONS 153A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH DEALS WITH THE PENDING ASSESSME NT/REASSESSMENT PROCEEDINGS. THE FURTHER OBSERVATIONS MADE IN THE C ONTEXT OF DE NOVO ASSESSMENT PROCEEDINGS ALSO HAVE TO BE READ IN CONT EXT THAT IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL IS F OUND DURING THE COURSE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 26 OF SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAVE TO BE UNDERTAKEN. 25. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS TH E INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER SECTION 153 A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR RE QUISITION. THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTER PRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISION S OF SECTIONS 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOM E), 147 (INCOME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) O F THE ACT. 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 RE ASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD N OT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERP RETATION 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. 27. XXXX XXXX 28. XXXX XXXX 29. THE ARGUMENT OF THE COUNSEL FOR THE APPELLANT IF T AKEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A) , ITAT AND THE HIGH COURT, ON A NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED UP TO TH E HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS T O BE REPELLED AND/OR AVOIDED AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE (SUPRA). IT IS PERTINENT TO NOTE THAT A SIMILAR VIEW HAS BEE N TAKEN IN A SERIES OF DECISIONS BY THE HONBLE DELHI HIGH COURT, HONBLE GUJARAT HIGH COURT AS WELL AS HONBLE BOMBAY HIGH COURT AS RELIED UPON BY THE LD. A/R. THUS IT IS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT TH AT THE ASSESSMENT OR REASSESSMENT OF 6 YEARS IS A MANDATORY REQUIREMENT PURSUANT TO THE ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 27 SEARCH UNDER SECTION 132 OF THE ACT. HOWEVER, IN T HE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND, THE SAME WOULD NOT RE SULT IN ANY ADDITION AND ASSESSMENT PASSED EARLIER MAY HAVE TO BE REITER ATED. THUS THE AO CANNOT RESORT TO THE PROVISIONS OF SECTION 153A TO FILL UP THE LACUNA LEFT IN THE ORIGINAL ASSESSMENT OR NOT DOING THE ORIGINAL A SSESSMENT EXCEPT REASSESSMENT OF THE TOTAL INCOME AND ADDITION, IF A NY, BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH PROCEEDINGS. IN THE CASE IN HAND, UNDISPUTEDLY NO INCRIMINATING MAT ERIAL WAS FOUND TO REVEAL ANY INCOME NOT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) OF THE IT ACT. RATHER TH E ADDITION IS MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF EXPENDITURE TR EATING THE SAME AS CAPITAL IN NATURE. THEREFORE, THE ISSUE OF DISALLOW ANCE OF EXPENDITURE IS A DEBATABLE ONE AND THE DISALLOWANCE IS BASED ON DIFF ERENCE OF OPINION BETWEEN THE ASSESSEE AND THE AO. HENCE WHEN THE ORI GINAL ASSESSMENT WAS NOT PENDING AS ON THE DATE OF SEARCH THEN THE A O CANNOT USE THE PROCEEDINGS UNDER SECTION 153A TO MAKE AN ADDITION PURELY ON THE BASIS OF DIFFERENCE OF OPINION. THE LD. CIT (A) THOUGH A CCEPTED THE BINDING PRECEDENTS IN FAVOUR OF THE ASSESSEE, HOWEVER DECLI NED TO FOLLOW THE SAME ON THE GROUND THAT THE REVENUE HAS NOT ACCEPTE D THOSE DECISIONS OF THE HIGH COURTS AND FILED THE SLP BEFORE THE HONBL E SUPREME COURT. IT IS PERTINENT TO NOTE THAT THE LD. CIT (A) IS A QUASI-J UDICIAL AUTHORITY AND IS NOT SUPPOSED TO FUNCTION AS A TAXING AUTHORITY. IN CASE THE DEPARTMENT HAS NOT ACCEPTED THE DECISIONS OF HONBLE HIGH COUR TS, THEN THE AO IS AT LIBERTY TO MAKE THE ADDITION TO KEEP THE ISSUE ALIV E BUT THE APPELLATE AUTHORITY IS BOUND BY THE DECISION OF HONBLE JURIS DICTIONAL HIGH COURT SO LONG THE SAME IS NOT REVERSED BY THE HONBLE SUPREM E COURT. HENCE IT WAS NOT PROPER ON THE PART OF THE LD. CIT (A) TO RE FUSE TO FOLLOW THE BINDING PRECEDENT. ACCORDINGLY, WE SET ASIDE THE IM PUGNED ORDERS OF THE AUTHORITIES BELOW QUA THIS ISSUE AND DELETE THE ADD ITION MADE BY THE AO. SINCE THE ADDITION MADE BY THE AO IN THE ASSESSMENT FRAMED UNDER ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 28 SECTION 153A IS DELETED FOR WANT OF INCRIMINATING M ATERIAL, THEREFORE, GROUND NO. 1 OF THE ASSESSEES APPEAL BECOMES INFRU CTUOUS IN VIEW OF OUR FINDING ON THE ISSUE RAISED IN GROUND NO. 1.1. ACCORDINGLY, THE ADDITION OF RS. 1,50,000/- MADE BY THE ASSESSING OFFICER FOR THE A.Y. 2013-14 IS NOT SUSTAINABLE AND THE SAM E IS DELETED. FOR THE A.Y. 2014-15, SINCE THE ASSESSMENT WAS ABATED AS ON THE DATE OF SEARCH AND THEREFORE, THE DISALLOWANCE MADE ON ACCOUNT OF E XPENDITURE INCURRED FOR INCREASING THE AUTHORIZED CAPITAL IS CONFIRMED. 16. GROUND NO. 2 OF THE C.O. FOR THE A.Y. 2014-15 I S REGARDING THE ADDITION OF RS. 70,500/- AS UNDISCLOSED INCOME OF T HE ASSESSEE BASED ON THE STATEMENT. 17. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS PRODUCED LEDGER ACCOUNT OF M/S NAHAR FILLING STATIO N TO SHOW THAT THERE WAS NO DISCREPANCY IN THE ACCOUNTS STATEMENT WITH M/S NAHAR FILLING STATION AND THEREFORE, THE ADDITION MADE BASED ON T HE STATEMENT IS NOT SUSTAINABLE. HE HAS SUBMITTED THAT THE DIFFERENCE HAS ARISEN SINCE THE PARTY HAS INITIALLY DEBITED CHARGES OF RS.70,500/- TO THE ACCOUNT OF ASSESSEE FOR WHICH ENTRY WAS MADE IN THE BOOKS OF AC COUNTS. THEREAFTER, THE PARTY REVERSED THE SAME WITHOUT INTIMATION TO TH E ASSESSEE RESULTING INTO DIFFERENCE. WHEN THIS FACT CAME TO THE NOTICE OF ASSESSEE, REVERSE ENTRY OF THE SAME WAS PASSED IN THE SUBSEQUENT YEAR WHERE THE AMOUNT ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 29 OF RS.70,500/- IS OFFERED FOR TAX. THUS, WHEN THE AM OUNT IS ALREADY OFFERED FOR TAX IN AY 2016-17, THE ADDITION MADE BE DELETED FOR WHICH RELIANCE IS PLACED ON THE DECISION OF HONBLE SUPRE ME COURT IN CIT VS. EXCEL INDUSTRIES LTD. 358 ITR 295 IN WHICH IT WAS HELD THAT WHEN THE RATE OF TAX REMAINED THE SAME IN PRESENT A.Y. AS WELL AS IN SUBSEQUENT A.Y., THE DISPUTE RAISED BY THE REVENUE IS ENTIRELY ACADE MIC OR AT BEST MAY HAVE A MINOR TAX EFFECT, THERE IS NO NEED FOR THE R EVENUE TO CONTINUE WITH THE LITIGATION WHEN IT WAS QUITE CLEAR THAT NOT ONLY WAS IT FRUITLESS (ON MERITS) BUT ALSO THAT IT MAY NOT HAVE ADDED ANYTHIN G MUCH TO THE PUBLIC COFFERS. 18. ON THE OTHER HAND, THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 19. SINCE THE ASSESSEE HAS NOW EXPLAINED THAT THERE WAS REVERSE ENTRY OF THE EQUAL AMOUNT PASSED IN THE SUBSEQUENT YEAR A ND OFFERED FOR TAX, THEREFORE, THE ADDITION WOULD BE A DOUBLE TAX ON THE SAME AMOUNT. SINCE THIS ASPECT WAS NOT CONSIDERED BY THE AUTHORITIES BE LOW, THEREFORE, WE DIRECT THE ASSESSING OFFICER TO CONSIDER THIS ISSUE AND THEN DECIDE THE SAME IN ACCORDANCE WITH THE LAW AS WELL AS DECISION RE LIED UPON BY THE ASSESSEE. NEEDLESS TO SAY THE ASSESSEE BE GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING. ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 30 20. GROUND NO. 3 OF THE C.O. FOR THE A.Y. 2014-15 I S REGARDING THE DISALLOWANCE OF INTEREST PAID ON ALLEGED PAYMENT OF TDS. 21. WE HAVE HEARD THE LD AR AS WELL AS THE LD. CIT-D R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. SINCE THE INTEREST ON TDS IS PART AND PARCEL OF THE INCOME TAX, THEREFORE, THE SAME IS NO T AN ALLOWABLE EXPENDITURE. THE LD. CIT(A) HAS CONSIDERED THIS ISSUE IN PARA 19 TO 19.2 OF THE ORDER AS UNDER: 19. I HAVE CONSIDERED THE FACTS OF THE CASE AND SU BMISSION OF THE APPELLANT. 19.1 IT IS UNDISPUTED FACT THAT THE INTEREST IS ON ACCOUNT OF DELAY IN DEPOSIT OF THE TAX DEDUCTED AT SOURCE. THE SAME IS A N INFRINGEMENT OF LAW AND THE SAME CANNOT BE TERMED A S NORMAL INCIDENT OF BUSINESS. IT IS BECAUSE THE APPE LLANT COMMITTED A DEFAULT OF NOT PAYMENT GOVERNMENT FUND COLLECT FROM DEDUCTEE ON ACCOUNT OF TDS AND THE APPELLANT WAS BOUND BY THE RULE TO DEPOSIT THE SAME IN TIME AS PR ESCRIBED IN THE LAW AND THE SAME CANNOT BE ALLOWED U/S 37 OF T HE IT ACT. 19.2 THOUGH TDS IS NOT AN INCOME TAX LEVIED ON THE PR OFIT OF THE APPELLANTS BUSINESS NEVERTHELESS THE INTEREST ON DE LAYED PAYMENT OF TDS IS DUE TO A VIOLATION OF RULE FOR TIM ELY PAYMENT OF TDS AND SAME IS COMPENSATED TO GOVERNMENT BY INTEREST UNDER MANDATORY PROVISION OF LAW. HOWEVER, T HIS ITA 727 & 728/JP/2017 & C.O. 37 & 38/JP/2017_ DCIT VS. M/S BANNA LAL JAT CONST. PVT. LTD. 31 COULD NOT BE SAID NORMAL INCIDENCE OF BUSINESS AND THEREFORE, COULD NOT BE COVERED U/S 37 OF THE IT ACT. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW QUA THIS ISSUE. 22. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES AND BOTH THE C.O. OF THE ASSES SEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH NOVEMBER , 2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- NOVEMBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CENTRAL CIRCLE, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- M/S BANNA LAL JAT CONSTRUCTIONS PVT. LTD., BHILWARA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 727 & 728/JP/2017 & CO 37 & 38/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR