DEPUTY COMMISSIONER OF INCOME TAX, JALANDHAR V. S. CHANDER SHEIKHAR, JALANDHAR

ITA 108/ASR/2024

AI Insights

This case involves a series of appeals and cross-objections related to the assessment years 2011-12 to 2019-20, concerning the alleged unaccounted production and sales of cigarettes and filters by various manufacturing units. The primary legal contention revolved around the applicability of Section 153A of the Income Tax Act, 1961, following a search operation under Section 132. The Assessing Officer made substantial additions to the income of the assessee, Sh. Chander Sheikhar, based on the statements of employees and a valuation report from the Departmental Valuation Officer (DVO). However, the CIT (A) deleted these additions, leading to the revenue's appeal. The Tribunal's decision emphasized the lack of incriminating evidence and the reliance on estimations and uncorroborated statements.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 38636 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-09-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 04-03-2024
• Other Referred Cases: PCIT vs Abhisar Buildwell Pvt Ltd, King Buildcon Pvt Ltd vs PCIT, PCIT vs S S Con Build Ltd, Saumya Construction (P) Ltd vs CIT, Kabul Chawla vs CIT, Anjaneya Brick Works vs ACIT (Inv), Dolphin Builders Pvt. Ltd vs ACIT, Hotel Vrindavan vs Asstt. CIT, Royal Marwar Tobacco Product Pvt. Ltd vs DCIT, H.C. Chandna (P.) Ltd vs CIT, Savaliya Developers Pvt. Ltd vs DCIT, M/s Shreeji Bihariji Colonisers and Builders Pvt Ltd vs ACIT, S. A. builders Ltd vs CIT(A), Debjyoti Dutta vs ITO, CIT vs Metachem Industries, CIT vs Sadhna Gupta, CIT vs Vasu dev Constructions
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDERA BHAURAOJI NINAWE
• Assessee Lawyers: ASHRAY SARNA; WAY OF LOAN FROM
• Keywords: Business income; Question of law; Corroborative evidences; Unexplained expenditure; Unexplained investment; Rule of consistency; Document seized; Documents seized; Bogus purchase; Onus to prove; Retraction; Principle of natural justice; Search and seizure; Valuation report; Block assessment; Value adopted by valuation officer; Bogus
• Section: 143(3); 142(1); 119; 250; 143(1); 192; 153; 132; 153A; 139(1); 68; 131; 22; 69; 69C; 69B; 13; 153C; 133A; 264; 20

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER I.T.A. No.110/Asr/2024 Assessment Year: 2011-12 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.2/Asr/2024 (I.T.A. No.110/Asr/2024) Assessment Year: 2011-12 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.111/Asr/2024 Assessment Year: 2012-13 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.3/Asr/2024 (I.T.A. No.111/Asr/2024) Assessment Year: 2012-13 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 2 I.T.A. No.105/Asr/2024 Assessment Year: 2013-14 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.4/Asr/2024 (I.T.A. No.105/Asr/2024) Assessment Year: 2013-14 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.108/Asr/2024 Assessment Year: 2014-15 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.5/Asr/2024 (I.T.A. No.110/Asr/2024) Assessment Year: 2014-15 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 3 I.T.A. No.112/Asr/2024 Assessment Year: 2015-16 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.6/Asr/2024 (I.T.A. No.112/Asr/2024) Assessment Year: 2015-16 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.113/Asr/2024 Assessment Year: 2016-17 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.7/Asr/2024 (I.T.A. No.113/Asr/2024) Assessment Year: 2016-17 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.179/Asr/2024 Assessment Year: 2017-18 I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 4 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.8/Asr/2024 (I.T.A. No.112/Asr/2024) Assessment Year: 2017-18 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.180/Asr/2024 Assessment Year: 2018-19 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.9/Asr/2024 (I.T.A. No.180/Asr/2024) Assessment Year: 2018-19 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 5 I.T.A. No.181/Asr/2024 Assessment Year: 2019-20 DCIT, Jalandhar. (Appellant) Vs. Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Respondent) C.O. No.10/Asr/2024 (I.T.A. No.181/Asr/2024) Assessment Year: 2019-20 Sh. Chander Sheikhar, Aaytan Tower Civil Lines Jalandhar Punjab. [PAN:-ABQPS4338E] (Appellant) Vs. DCIT, Jalandhar. (Respondent) Appellant by Sh. Hitendera Bhauraoji Ninawe, CIT. DR. Respondent by Sh. Ashray Sarna, CA. Date of Hearing 04.09.2024 Date of Pronouncement 18.10.2024 ORDER Per: Bench: This is a bunch of nine appeals filed by the revenue and nine cross objections filed by the assessee, for the assessment years 2011-12 to AY: 2019-20, (both years inclusive), against the orders of the Ld. CIT (A) - 5, Ludhiana, passed I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 6 u/s 250 of the Act 61, which has emanated from the orders of the ACIT- Central Circle - 1, Jalandhar, passed u/s 153A of the Act 61. 2. The factual aspect of the matter are almost identical in all the years, and for the sake of convenience, all the appeals and cross appeals, are taken up together for disposal. Assessment year 2011-12, is taken as the lead case. 3. The facts of this case in brief are that a search was conducted u/s 132 of the Act 61, at the business and residential premises of the assessee on 29th October, 2020 located at Noormahal, Jalandhar, Ludhiana, Phagwara, Mohali, Patiala, Moga, and Ferozpur. 4. The assessee is a business man engaged in the business of real estate, as promoter developer and engaged in other trading activities, and is regularly assessed to tax. Regular return has been filed u/s 139(1) along with copies of audited accounts and assessed accordingly. However, it is pertinent to note that in- spite of a thorough search being conducted at the business and residential premises of the assessee (Sh Chander Sheikhar Marwah), on 29/10/2020, no incriminating documents has been found and there is no SEIZURE of any incriminating materials by the search party. 4. Simultaneously, on the same date, survey u/s 133A of the Act 61, was also carried out at the premises of various business concerns, operating under the trade name of M/s Inayat Global Private Limited, M/s Karsh Enterprises, M/s IJM International, M/s Nagahia Sons, all located at Nakodar. 5. The outcome of the survey conducted revealed that all the above business concerns under different trade names, are engaged in manufacturing and sale of cigarettes and cigarette filters, legally owned and operated in the names of different individuals, having different PAN, separate VAT numbers (later on I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 7 separate GST registration numbers) and different Central excise registration, issued by appropriate authorities. The summary are as follows: Trade name: Proprietor / Partner / Director PAN Excise / VAT /GST M/s UM International Mr Satish Kumar ( prop) AUNPK5953H AUNPK5953HEM001 M/s Inayat Global Pvt Ltd MrBalram and AACCI8462M AACCI8462MEM001 Mr Vinod Kumar ( Directors ) M/s NAGAHA SONS Mr Kapil Arora ( Proprietor ) AGOPA3579N AGOPA3579NEM001 M/S Karsh Enterprises Mr Jaswinder Singh ( Prop ) EFZPS6418J EFZPS6418JEM001 • The above individuals and the corporate, are all separately assessed to tax and has filed their return of income in normal course and has been assessed accordingly in their respective capacity in due course and the impounded documents if any gathered in course of survey from the respective business premises, has been considered in respective hands. 6. In the instant case , the main contention and allegation of the revenue is that the various concerns , stated above , engaged in the business of manufacturing and sales of cigarettes and cigarette filters, are all controlled , owned and operated by the assessee , himself , running in double shifts manufacturing process, and as a result there has been huge suppression of production and sales of cigarettes and its filters, throughout the entire block period , year to year , and as such the entire income arising out of the four different manufacturing units, factually, belongs to I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 8 the assessee and should be brought to tax in the hands of the assessee alone on substantive basis. 7. It is seen that the premises on which the four cigarette manufacturing units , were installed , are legally owned by the assessee, but the said premises where already let out / leased out to the above four concerns, vide rental agreements , since their inception of business, and the assessee derived rental income from such concerns, and the said rental income has been duly disclosed by the assessee , in his regular returns , year to year , under the head “ income from house property ”, which proves the fact that , the said premises are let out/leased out , on rent to the above tenants/ lessees , are already in the knowledge of the department , since inception, and the rental income disclosed in regular returns are duly accepted by the department in normal course. 8. It is also seen that all the above four concerns , are legally owned by the respective persons , under respective PAN , and cigarette manufacturing being under the control of Central excise authorities , all the above persons are separately registered before the said authorities and also under the VAT , and later under GST authorities, as per applicable provisions of respective Acts , and all provisions regarding submissions of returns and statements in usual course of business has also been complied with. 9. All the above persons has been regularly filing their respective returns along with financial statements and has been regularly assessed to tax in normal course, since inception of business. 10. During the course of search at the premises of the assessee and survey at the premises of the cigarette manufacturing concerns, statements of various individuals were recorded, the summary of which are as under: I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 9 Names of Persons Locus satndi of the Main contents of their deposed who deposed persons in relation to depositions: before Search team : search : (page 18 of Remand ) Vinod Kumar Director Inayat The Assessee Mr Chander Global Pvt Ltd Sheikhar Marwaha has been controlling the whole business Sh Balram Director Inayat of all cigarette manufacturing Global Pvt Ltd units existing in Nakodar for many years. Baldish Singh Director IJM Enterprises Unaccounted manufacturing Private Ltd and production of cigarette Authorised Signatory takes place in the units and M/s Karsh Enterprise production is carried out at night shifts, with generators. Sukhpal singh Employee All salaries and wages are disbursed in cash and thre are approximately 22 employees Kapil Arora Director Inderjeet Sons per shift. Enterprise Pvt Ltd and No record of of raw material Proprietor of Nagahia Sons purchase and dispatch of Deepak Kumar Supervisor Iniyat Global finished goods are preserved Different brands of cigarette are manufactured and all the above persons has admitted themselves as Employees of the Assessee. 11. It is also recorded in the remand report that certain documents has been impounded from the premises of M/s IJM International (proprietor Mr . Satish Kumar), marked Annexure A - 8, a register for the period 23/02/2014 to I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 10 25/03/2017, duly authenticated by Central Excise Officers and some tax invoices and Annexure - A - 15, impounded from Mr Satish Kumar, relating to electric bills, relating to electric meter connection in the names of the assessee Chander Sheikhar and another in the name of his son Mr Ankush Marwaha. Depositions were recorded from one Mr Baldish Singh , accountant and an employee of the assessee , and one Mr kapil Arora,( proprietor of Nagahia Sons ) regarding the modus operandi of manufacturing of cigarettes , which are processed in two shifts ,( working eight hours per shift ) and which according to the deponents has remained un - recorded in regular books of accounts, and it has been further alleged that the said goods are transported out of the premises , and sold , without compliance with central excise guidelines and GST compliance. 11.1 In the back drop of such facts, proceedings were initiated against the assessee u/s 153A of the Act 61, on 22nd November, 2021, in response to which return of income was filed on 12th December, 2021, declaring total income of Rs.21,55,210/-. 11.2 During course of assessment proceedings, in response to notice u/s 142(1) of the Act 61, full compliance has been made by the assessee, and all documents and explanations , as called for has been filed before the AO , without giving any cognizance to such explanations and submissions , proceeded to determine the total income , in his own way. 11.3 In course of assessment proceedings the AO , made his own workings and computations as contained in the body of the assessment order , on the basis of statements and depositions of the employees and the other persons , recorded ,during search u/s 132 and survey u/s 133A of the Act 61 , referred to in above paragraphs , and estimated the unaccounted sales of cigarettes and cigarette filter and went on to make an addition of Rs.20,16,56,000/- on account of alleged “unaccounted production and sales of cigarette” plus an amount of Rs. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 11 2,03,84,000/- on account of profits from cigarette filters , alleged to have been produced and sold by the assessee , in the four cigarette manufacturing , units, namely M/s Inayat Global Private Limited, M/s Karsh Enterprises, M/s IJM International , M/s Nagahia Sons, thereby determining the total income at Rs. 22,41,95,210/-, against a returned income of Rs. 21,55,210/-. 12. The matter was carried in appeal and the first appellate authority , being the Ld CIT ( A ) - 5 , Ludhiana , passed a detailed order considering all aspects of the matter, and has observed that in absence of any SEIZED material , or documents , unearthed during the search , and in the absence of any incriminating materials , the provisions and scope of search cases are governed by the decision of the Hon’ble Supreme Court, in the case of PCIT vs Abhisar Buildwell Pvt Ltd in civil appeal No 6580 of 2021 dated 24/04/2023 ( 150 taxmann.com 257 ( SC ) (2023 ). In the instant cases , since the assessments are all completed / unabated , on date of search , and no incriminating materials found , no additions can be made by the AO , because the pre - condition of initiation of proceedings u/s 153A for the year does not exist . 13. It is also to be noted that the decision of the Hon’ble Apex court in Abhisar Buildwell Pvt Ltd , is followed by the Hon’ble Supreme Court in the case of “ King Buildcon Pvt Ltd in civil appeal No 4326/2023 and also in the decision of the Apex court in PCIT vs S S Con Build Ltd ( 445 ITR 506 ) . 14. Respectfully, following the decision of the Hon’ble Supreme Court, the Ld first appellate authority, deleted the additions and allowed the appeal. Now, the revenue is in appeal before tribunal, on the grounds contained in the memorandum of appeal: 1. Whether on the facts and circumstances of the case and in law, the decision of Id. CIT(A) is perverse as CIT(A) has I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 12 deleted the addition made in assessment u/s 153A by relying on the decision of Hon'ble Supreme Court in the case of Abhisar Buildwcll Pvt. Ltd and holding that in the assessment order the AO has not recognized any incriminating material found during search whereas AO made addition based on the statement recorded during search which constitutes incriminating document? 2. Whether the decision of ld. CIT(A) that addition made on the basis of statement of employees and other persons recorded during the course of search which are not corroborated with any evidence cannot be said to be based on incriminating material, is in contradiction to the decision of Hon'ble Gujrat High Court in the case of Saumya Construction (P) Ltd. [2017] 81 taxmann.com 292 (Gujarat) where the Hon’ble Court has defined incriminating material to be material found during search or requisition which reveals undisclosed income? 3. Whether the statement of employees and other persons recorded during the course of search constitutes incriminating material as defined by Hon’ble Gujarat High Court in the case of Saumya Construction (P) Ltd. (2017] 81 taxmann.com 292 (Gujarat) where the Hon'ble Court has defined incriminating material to be material found during search or requisition which reveals undisclosed income? 4. Whether on facts and circumstances of the case and in law, the Id. C1T(A) was justified in deleting the addition made by AO u/s 153 A of the Act for the A.Y. 2011- 12 where the addition has been made on the basis of incriminating material in I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 13 the A. Y. 2021-22 and ignoring the decision of Hon’ble Supreme Court in the case of M/s Kcsarwani Zarda Bhandar Sahson, Allahabad in Civil Appeal Nos. 7738-7739/2021. 7736- 7737/2021, 7732-7735/2021 and 7740-7743/2021 has upheld the order of Allahabad High Court and held that once during search undisclosed income is found on unearthing the incriminating material during the search, the AO would assume Jurisdiction to assess or reassess the total income even in case of completed/unbaled assessments? 5. Whether on the facts and circumstances of the case and in law, the Ld. CI f(A) justified in deleting the addition of Rs, 20,16,56,000/- made on basis of incriminating material on account of manufacturing of cigarette in the absence of plausible explanation by the assessee, without going into the merit of the case? 6. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition of Rs.2,03,84,000/- made on basis of incriminating material on account of manufacturing of cigarette filter in the absence of plausible explanation by the assessee, without going into the merit of the case? 7. The appellant craves leave to add, amend, modify, vary, omit or substitute any of the aforesaid grounds of appeal at any time before oral the time of hearing appeal.” 15. The Ld. DR , in course of appeal , relied on the assessment order and the contents of the remand report submitted by the AO in appellate proceedings , and I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 14 argued that the AO has made additions based on the statements of various employees and proprietors / directors of M/s Inayat Global Private Limited, M/s Karsh Enterprises, M/s IJM International , M/s Nagahia Sons, recorded, in course of survey u/s 133A at the premises of the aforesaid concerns and also on the basis of statements of employees of the assessee recorded at the premises of the assessee, u/s 132(4) of the Act 61. 16. The Ld. DR further relied upon the statement of oath given by the employee of the assessee Mr Baldish Singh , alleged to be accountant ,of the assessee, with reference to the impounded registers and documents, A-15 ( electricity bills in name of assessee and son), A-2 ( relating to tax invoice of cut tobaccos), A-8 (evidence of double shift production), A-13 ( documents bearing signatures and stamp of Excise officials), to support the calculation and computation made by the AO on the basis of such deposition and statements , to arrive at the undisclosed quantity of production and subsequent sales of such goods and for determination of suppressed income on such undisclosed sales , which is the subject matter of addition in the assessment order. 17. In other words the crux of his argument is that , even though no incriminating materials has been found in this search at the premises of the assessee, the deposition and the statements, as recorded by the search and survey team at the premises of the assessee and other four parties , given by the employees and other person , present at the search and survey premises, can be considered as incriminating material , for the purpose of initiating proceedings u/s 153A of the Act 61 , and the Ld CIT(A) was not legally justified in deleting the addition of Rs. 22.41 crores, relying on the judgment of the Hon’ble Supreme court in the case of “ Abhisar Buildwell Pvt Ltd ” , and in support of his contention the Ld DR relied upon the judgment of the Honb’le Gujrat High court in the case of PCIT vs Saumya Constructions ( P ) Ltd. 387 ITR 529 ( Gujrat ) dated 14th march, I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 15 2016, ( which incidently is much earlier to the Hon’ble Apex court judgment in Abhisar Buildwell Pvt Ltd passed on 24th April, 2023 ) . 18. As such Ld. DR prayed for restoration of the assessment order. 19. On the other hand the Ld. AR of the assessee, at the onset referred to the fourth proviso of section 153A of the Act 61, to submit that in the instant case, that the AO does not have any material whatsoever in his possession, on the basis of which he could issue a notice u/s 153A of the Act 61. 20. The relevant portion reads as under: “Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless— (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and (c) the search under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017.” 21. Thereafter, he further submits that whatever documents that has been impounded and referred to in the assessment order and the remand report , has been impounded from the premises of the four parties who are engaged in the manufacturing activity and was under survey u/s 133A of the Act 61, and all such entries has been duly recorded in their respective books ( including central excise returns and GST returns ) and books of accounts and regular returns filed in normal course and duly considered in respective hands in assessment proceedings, to which the assessee is not involved , because all the other four parties , are separate and distinct from each other and in the instant case nothing has been SEIZED from the premises of the assessee. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 16 22. The Ld. AR of the assessee , has also filed a written submission and has based his arguments before the tribunal on the same : Submissions of the Assessee: AY 2011-12 to AY 2019-20 1) SUBMISSIONS ON LEGAL GROUND THAT NO INCRIMINATING MATERIAL WAS FOUND DURING SEARCH: 23. During the year assessee was engaged in the Trading and real estate business and has filed his original returns for all the years and declared his income which is assessed and processed u/s 143(1) of the Act by the department before the date of search. 24. A search /seizure operation was conducted on business as well as at the residential premises of IJM Group wherein the contention was raised against the assessee that he is engaged in the alleged business of manufacturing cigarettes / filters during the year and the same has been unaccounted by the assessee in his returned income. Sir it is submitted that no incriminating material was found during the course of search. The addition is made on the basis of estimation and assumption and on the basis of alleged statement of employees of the assessee recorded at the time of search during the FY. 2020-21 whereas no documents pertaining the years under consideration were found during the search and seizure operation. Sir, the entire addition was made on account of alleged unaccounted production of cigarettes/filter that too on the basis of the statement of the various persons recorded at the time of survey /search operation conducted on 29.10.2020, wherein no documents or evidence were found in respect to any products / manufacturing for sale for cigarettes / filter. Moreover statements of the employees were taken under pressure as they were I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 17 continuously provoked and threatened by the sections of income tax Act that would be imposed to them and also those statements were contradicting. Therefore, present case is a case where no proceedings for AY 2011-12 to AY 2019-20 were pending on the date of search and hence the said assessment did not abate. Therefore, in such a situation when the assessment has attained finality and has not abated and no incriminating material qua impugned addition was found as a result of search, which is evident from a plain reading of the assessment order, which also mentions that addition has been made only on the basis of statement recorded during search. Sir, this issue is also settled by The Hon’ble Supreme Court of India in the case of PCIT-3 vs. Abhisar Buildwell Pvt. Ltd. in Civil Appeal No. 6580 of 2021 vide order dated 24.04.2023 in which it is made clear that no addition can be made in case no incriminating material was found during search u/s 132 of the Income Tax Act. This fact is also accepted by the Hon’ble CIT(A)-5 in his order and considering this he passed order in the favour of assessee. 25. In support of this reliance is being placed upon the following decisions: PRINCIPAL COMMISSIONER OF INCOME TAX & ORS. Vs. MEETA GUTGUTIA PROP. FERNS ‘N’ PATELS & ORS. (2017) 152 DTR 153(Del.) Search and Seizure—New scheme of assessment in search cases— Validity of invocation of Section 153A—On basis of documents recovered during search and seizure operation, notice u/S. 153A was issued to Assessee—AO invoking section 153A passed assessment I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 18 order against assessee—CIT(A) and Tribunal held that assumption of jurisdiction under Section 153A for said Ays was bad in law—Held, if no incriminating material was found during course of search in respect of an issue, then no additions in respect of any issue could be made to assessment under Section 153A and 153C—There was no such statement in present case which could be said to constitute admission by Assessee of failure to record any transaction in accounts of Assessee for Ays in question—Disclosure made in sum was only for year of search and not for earlier years—As already noticed, books of accounts maintained by Assessee in present case was accepted by AO—In case of Commissioner of Income Tax (Central-III) v. Kabul Chawla (2016) 380 ITR 573 (Del) Court held that completed assessments could be interfered with by AO while making assessment under Section 153 A only on basis of some incriminating material unearthed during course of search or requisition of documents or undisclosed income or property discovered in course of search which were not produced or not already disclosed or made known in course of original assessment—Assessment in respect of each of six assessment years was separate and distinct assessment—U/s.153A, assessment had to be made in relation to search or requisition, namely, in relation to material disclosed during search or requisition—If in relation to any assessment year, no incriminating material was found, no addition or disallowance could be made in relation to that assessment year in exercise of powers under section 153A and earlier assessment should have to be reiterated—There was no such statement in present case which said to constitute an I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 19 admission by Assessee of failure to record any transaction in accounts of Assessee for Ays in question—Court was of view that ITAT was justified in holding that invocation of Section 153A by Revenue for Ays 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those Ays. 26. CIT-II, Thane vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 58 taxmann.com 78 (Bom HC) IT: No addition can be made in respect of assessments which have become final if no incriminating material is found during search. It is submitted, at the cost of repetition, that there was no incriminating material found during Search qua. It is an admitted fact that original return was filed and later it was processed and search in the present case was carried upon on 2020 that is much after the date of completion of processing. Therefore, in view of above submissions and judgments, jurisdiction assumed by Ld. AO u/s 153A/143(3) is bad in law and impugned assessment order may please be quashed. 2) Submission on the legal ground that addition is based on statement of employees only, which was recorded during the search. It is submitted that in the present case addition is made on the basis of statement of employees recorded during the search which is not supported by any credible evidence. Sir, in this case addition is made on the basis of statements of employees only and not the basis of statement of assessee himself or his family. Moreover statements of the employees were taken under pressure as they were continuously provoked and threatened by the sections of income tax Act that would be imposed to them and also those statements were contradicting. These statements recorded and utilized as the sole basis for making addition in the I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 20 hands of assessee group is not at all supported/corroborated/substantiated by any credible material/document/loose sheet etc. In the entire body of assessment order Ld. AO is merely relying and reproducing the statement of employees only and these are not supported/corroborated/substantiated by any evidence or document. Sir, your attention is drawn to of the Assessment order where in the addition is made only on the basis of statement of employees recorded during the search and no incriminating material was found during search which could support the statements made against the assessee group. Sir, moreover proceedings are not justifiable wholly on the basis of sworn statement recorded in the course of search/survey in the absence of any other tangible evidence available with the Assessing Officer as the material collected and the statement obtained u/s 131 would not automatically bind upon the assessee.This issue had been considered in the case of CIT, Salem v. M/s.S.Khader Khan Son (2012) 254 CTR (SC) 228 : (2013) 352 ITR 480 (SC) : (2012) 210 TAXMAN 248 (SC) wherein the Bench stated that the word “may” used in Section 133A(3)(iii) of the Act, viz., “record the statement of any person which may be useful for, or relevant to, any proceeding under this Act, made it clear that the materials collected and the statement recorded during the survey under Section 133A were not conclusive piece of evidence by itself. Following the circular F.No.286/2/2003 of the Central Board of Direct Taxes dated 10.3.2003, it was concluded that the materials collected and the statement obtained under Section 133A would not automatically bind the assessee. 27. In the instant case there was not a shread of material apart from the statement recorded during search. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 21 27.1 In this regard the law is very clear in this respect and CBDT has issued instruction with regard to confession of additional income during the course of search and seized and survey operations. Instruction no. F.No. 286/2/2003- IT(Inv.II), dated 10.03.2003 give some reflection about such confession of additional income without any credible evidence during the course of search & seizure which is quoted as under: “Instances have come to the notice of the board where assessee have claimed that they have been forced to confess the undisclosed income during the course of the search & seizure and survey operations. Such confession, if not based upon credible evidence, are later retracted by the concerned assessee while filing return of income. In these circumstances, such confession during the course of search & seizure and survey operations do not serve any useful purpose. It is therefore, advised that there should be focus and concentration on collection of evidence of income which leads to the information on what has not been disclosed or is not likely to be disclosed before the income tax department. Similarly, while recording statement during the course of search & seizure and survey operation no attempt should be made to confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. Further in respect of pending assessment proceedings also, Assessing Officer should rely upon the evidence/ materials gathered during the course of search/survey operations or thereafter while framing the relevant assessment orders.” 28. Further, assessee also relying upon the CBDT instruction no. F.No. 286/98/2013-IT(Inv.-II), dated 18.12.2014. Further reliance is being placed upon the following decisions: I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 22 ACIT Vs. Janak Raj chauhan (2006) 102 TTJ (Asr) 316, wherein it is held that“………..The AO has mainly relied on the statement recorded by the AO under s. 132(4). It is settled position in law that admission made by the assessee under s. 132(4) is an important piece of evidence, but the same is not conclusive. It is open to the assessee who made the admission to show that it is incorrect and the same was made under a mistaken belief of law or facts. Apart from disclosing income of Rs.3.50 lakhs in the asst. yrs. 1991-92 and 1992-93 on behalf of R, his son, the assessee again disclosed income of Rs. 1.5 lakhs being income earned in the name of R in the past assessment years. The assessee was being assessed to tax right from asst. yr. 1984-85. If the income was earned in the earlier assessment years relating to 1984-85 to 1990-91, the assessee could have disclosed such income in those assessment years rather than disclosing the same for the asst. yr. 1991-92. Moreover, the Department has not brought any evidence on record to show which particular transaction of land in the name of minor sons resulted in income disclosed by the assessee under s. 132(4). This only shows that the assessee was indeed in a confused state of mind. Further, the Revenue has not placed any material or evidence to show that income disclosed in the names of minor sons was based on positive evidence found during the course of search. Thus, in the absence of evidence, the CIT(A) was justified in referring to the investments made in the names of minor sons during the relevant assessment years and restricting the addition to the amounts equal of such investment. In fact, the assessee had even contested these additions before the CIT(A), but such submission of the assessee was rejected. In the light of these facts and circumstances of the case and in the absence of any supportive material, CIT(A) was justified in reducing the additions made by relying on the statement recorded under s. 132(4). The income disclosed under s. 132(4) I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 23 in respect of remaining amount was not based on any evidence or material and, therefore, the same was rightly deleted by the CIT(A).— (1973) 91 ITR 18 (SC) relied on….” ACIT Vs. Anoop Kumar (2005) 94 TTJ (Asr) 288, wherein it is held that “………Income disclosed under s. 132(4) was subsequently retracted by the assessees. It was also not disclosed in the returns of income filed. Based on the seized documents and material, the AO has computed total income, which is below the income disclosed under s. 132(4). In fact all the additions made by the AO based on the documents and evidence found during the search stand confirmed. It is also a fact that total income so computed by the AO falls below the income disclosed under s. 132(4). It is not the case of the Department that difference in the income assessed and income disclosed under s. 132(4) represents some other concealed income. Therefore, it is clear that there is no material available with the Department to justify the addition so far as the difference between the income computed by the AO and income disclosed under s. 132(4). In other words, the so-called disclosure under s. 132(4) is bald and has no legs to stand and in such a case retraction is justified. Thus, the view that emerges is that ultimate addition to be made in a case would depend on the facts and circumstances of the case and not purely on the disclosure made under s. 132(4), which also stood retracted subsequently. There could be a case where income disclosed under s. 132(4) was on the lower side than the income based on material and evidence found during the course of search or post-search enquiry. In such a case, the AO would be fully justified in completing the assessment on higher income, as such additions would be backed by evidence and material on record. The only implication would be that the assessee would not be entitled to immunity from penalty and prosecution in respect of income, which was not disclosed I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 24 under s. 132(4). In the light of these facts and circumstances of the case, no addition could be made merely by relying on the statement recorded under s. 132(4) when there is no evidence or material to justify such addition…..” Since assessment in the present case is framed on the basis of statement of employees recorded , which has no evidentiary value in the eyes of law it is requested that considering the facts and circumstances of the cases and the judicial precedents , cited above and also considering the facts of the present case, addition made by the Ld. Assessing Officer may kindly be deleted. 3) SUBMISSIONS ON LEGAL ISSUE THAT NO EXPLORATION CAN BE MADE IN SEARCH CASES: 29. It is submitted that addition is made on the basis of statement of employees recorded during search and there is no other incriminating material against the assessee and the same is evident from the assessment order itself which refers to only statements of employees recorded during search. Sir, the statements recorded in the year 2020 has been utilized for making addition for AY 2011-12 ( FY 2010-11 ) and other years. Even in the year 2020 there is no material against the assessee which could lead to the conclusion that there is unaccounted production/receipt/sale in the hands of assessee or family, which is totally against the principles of natural justice. 30. As regards the extrapolation concept, it is submitted that it was a search case in which a search party is supposed to and expected to find out all the incriminating documents, and materials as also undisclosed assets. A search assessment much less a block assessment, therefore, stands on different footing I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 25 than a normal assessment or an assessment based on the best judgment of the Assessing Officer. In the instant case, the assessee was searched and during this search no incriminating material was found. In the present case, no such assets were ever found by the department which could be attributed to any of such hypothetical receipts. Under these circumstances though estimation could be made, such estimation should not be vague and illogical which leads to absurdity. 30.1 Though there are number of judicial decisions where it has been held that no exploration can be made in search cases, in the present case addition is made in FY 2010-11, on the basis of statement of employees recorded in October 2020. 30.2 It is further submitted that even if there is any discrepancy found during the search, it could not lead to any evidence that it has been continued by assessee from the relevant previous years, this amounts to exploration of income, which is not permissible in law. 30.3 In support of his contention the assessee placed reliance upon the following decisions: CIT Vs. Anand Kumar Deepak Kumar 294 ITR 497 (Del), wherein it is held that “..........merely because some discrepancies were found in assessee’s books in the pre –search period of unaccounted sales, it could not be persumed that such a discrepancy continued even in the post search period, when there is no evidence to support such a view, and therefore addition could not be made on the basis that the assessee had made unaccounted sales throughout the accounting year. Being, so, there is no question of exploration of income in all these assessment years. This ground of appeal of assessee is allowed....” I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 26 Issrani Ghanshyam kotumal Vs. Department of Income Tax , Rajkot (I.T.A. No. 162/Rjt/2008) for the AY. 2004-05 , wherein it is held that “………………On careful consideration, I find merits in the submissions of the appellant. The estimate of unrecorded sales should be confined to the extent it is found from the diary impounded during the survey. The appellant's explanations for not recording the sales in the books cannot be simply rejected. No such diary or any other material is found for pre survey period and therefore it is difficult to hold that the appellant has affected unrecorded sales prior to period covered by the diary. When one material for a specific period is found, the discrepancy on the basis of that material should be confined to that period only unless the material itself or any other evidence or the circumstances giving rise to a finding indicate discrepancy for the other period. The Hon'ble Allahabad High Court in the case of Ashok Kumar Rastogi v. CIT 100 CTR (All) 204 in support of the finding of the CIT(A) that in the absence of any corroborating evidence no addition u/s. 69 could be made as unexplained investment in the sales estimated on discovery of certain documents. In the case of Anjaneya Brick Works v. ACIT (Inv) 74 TTJ (Bang) 921 for the proposition that mere existence of evidence to support concealment of income in the next assessment year cannot be made a basis to estimate the income for the current year or any other assessment year for that matter. In the case of Dolphin Builders Pvt. Ltd (356 ITR 420), Hon’ble High Court of Madhya Pradesh held that making addition merely on the basis of seized documents without cogent evidence that excess amount mentioned in I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 27 seized document was actually passed on to the assessee was not sustainable where books of account of assessee were duly audited. In the case of D. N. Kamani HUF (70 ITD 77) Hon’ble ITAT Patna Bench held that documents regarding receipt of on-money by assesses having been found in respect of sale of flats to one party, addition could not be made in respect of all the parties to whom assessee sold flats merely on the basis of presumption. On the similar note, the Hon’ble ITAT Jaipur Bench in case of ACIT V. M.M. Sales Agencies (2006) 153 Taxman 13 held that the income cannot be estimated for the period for which no information is available on the basis of the seized record. A similar issue was also dealt with by the Pune Bench of the Tribunal in Hotel Vrindavan v. Asstt. CIT [2000] 67 TTJ (Pune) 139 wherein it was held that the undisclosed income under Chapter XIV-B cannot be based on the presumption that if the assessee suppressed sales and expenses in later years, he must have done so in the earlier years also. Similarly, the Hon’ble ITAT Ahmedabad Bench in case of DCIT V. Royal Marwar Tobacco Product Pvt. Ltd (2009) 29 SOT 53 held that the Assessing Officer was not justified in making estimated additions for earlier assessment years based on the documents seized for A.Y. 2004-05. The High Court of Delhi in case of Commissioner of Income-tax, Delhi v. H.C. Chandna (P.) Ltd. [2007] 163 TAXMAN 654 (DELHI) upheld the finding of the tribunal that no income can be estimated on the basis of the evidences found for a particular period. On the similar lines recently the Hon’ble ITAT Ahmedabad in case of Savaliya Developers Pvt. Ltd V. DCIT in ITA No. 401/Ahd/2014 & I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 28 3188/Ahd/2015 vide order 30.06.2019 held as under in context to extrapolation:- “Besides, estimated cash receipts on-money of sale of all flats merely on the basis of statement of two purchasers without any tangible corroboration clearly falls in the realm of conjunctures and surmises. It is obvious that driven by misplaced suspicion, the AO has presumed the presence of on-money in respect of each of the residential flat sold. The action of the AO is a mere ipse dixit which is not objectively justifiable by some inculpatory evidence. It is only elementary to say that estimation of unaccounted money cannot be made only on the basis of contemplation. The order of the AO in making additions of Rs.3.28 Crores is thus clearly arbitrary and unsustainable in law. It is well settled that the Revenue authorities cannot base its findings on suspicions, conjunctures or surmises nor should it act on no evidence at all or on vague considerations partly on evidence and partly on suspicion, conjunctures or surmises. The Revenue could not demonstrate any material except unsupported statements of two persons. Such unverified statements without any proof towards its assertions are not a good evidence and do not raise any estoppel against the assessee. Therefore, the addition made by the AO is in the realm of speculation without any basis whatsoever. Hence, we decline to interfere with the order of the CIT(A) in so far as appeal of the Revenue is concerned.” The Hon’ble High Court of Delhi in the case of Principal Commissioner of Income Tax vs. Pilot Industries Ltd. reported at [2023] 146 taxmann.com 233 (Delhi), wherein, it has been held as under: “Where assessment of assessee for relevant assessment years was completed under section 143(3), however, Assessing Officer framed assessments for relevant years under section 153A and made additions on account of gross I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 29 profit suppressed by obtaining bogus purchase bills after rejecting account books, since there was no evidence found during search with respect to suppression of gross profit by obtaining bogus purchase bills by assessee and Assessing Officer had merely relied upon documents seized during course of search for other financial years 2010-11 and 2011-12, impugned assessment under section 153A was unjustified” Also, in the judgment of High Court of Bombay in the case of Commissioner of Income-tax vs. C.J. Shah & Co. reported at [2001] 117 TAXMAN 577 (BOM.), it has been held as under: “Search and seizure action under section 132 led to detection of certain loose sheets of paper indicating undisclosed sales for some months on which basis Assessing Officer estimated undisclosed profit and also worked out peak investment - Tribunal having found no material to show turnover during block period, held that on basis of said loose sheets which indicated figures of only incoming and outgoing cash transactions, addition made was arbitrary - Whether since loose sheets nowhere recorded assessee’s turnover, Assessing Officer had arrived at turnover on wrong basis of incoming and outgoing cash transactions - Held, yes - Whether while estimating undisclosed income on basis of material seized, it is impermissible for Assessing Officer to adopt an arbitrary method of calculation - Held, yes - Whether entire finding of Tribunal was based on facts and, thus, no substantial question of law arose from its order - Held, yes” I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 30 31. Further, in the judgment of Ld. ITAT Kolkata Bench A in the case of Fort Projects (P.) Ltd. vs. Deputy Commissioner of Income-tax reported at [2013] 29 taxmann.com 84 (Kolkata - Trib.), it has been held as under: “We find that Hon'ble Courts and Tribunals have time and again held that assessments cannot be framed merely on extrapolation theory i.e. discrepancies in respect of items must have existed in other years or other instances or projects unless a definite trend of malpractice is conclusively proved by substantial evidence on record.” 32. Further, the ITAT KOLKATA BENCH ‘B’ in the case of Mani Square Ltd. Vs. Assistant Commissioner of Income Tax, CC-3(2), Kolkata reported at [2020] 118 taxmann.com 452 (Kolkata – Trib.), in which it has been held as under:- “Cash credits (Immovable properties) – Assessment years 2013-14 to 2017- 18 – Whether theory of extrapolation cannot be applied on mere theoretical or hypothetical basis in absence of any incriminating and corroborative evidence or material brought on record by Assessing Officer to warrant same – Held, yes – Assessing Officer made additions under section 68 in case of assessee by extrapolating unaccounted sales across all units sold by assessee in its project on account of on-monies alleged to have been received against sale of flat and sale of car park to SB (HUF) – However, Assessing Officer had made independent enquiries from all flat purchasers in assessee’s project and despite such enquiries, Assessing Officer did not find any statement/material or transaction which would in any manner suggest let alone prove that other flat purchasers had paid any part of consideration in cash/on-monies over and above declared sale consideration – Whether in absence of any such material Commissioner (Appeals) rightly deleted addition made on ground that extrapolation made by Assessing I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 31 Officer was per se arbitrary and un-reasonable – Held, yes[Para 38] [In favour of assessee]” 33. Therefore, in view of the aforementioned discussion and judicial precedents mentioned above, the application of the extrapolation technique shall depend on facts and circumstances of each case and there can be no universal law on this issue. In the present case, no documents have been found and seized during the search and Ld. AO is merely relying on the statement of employees only, and as such application of extrapolation technique is not warranted for the entire assessment period as per provisions of law. 4) SUBMISSIONS ON LEGAL ISSUE THAT NO DIN IS MENTIONED IN BODY OF ASSESSMENT ORDER/DEMAND NOTICE AND APPROVAL U/S 153D IS ALSO WITHOUT DIN 34. It is submitted that CBDT circular No. 19/2019 dated 14.08.2019 mandated very officer issuing any communication, order, etc to anyone to mention DIN in the body of the order. In the present case, DIN has not been mentioned on the assessment order passed u/s 153A of the Act and also not mentioned on the demand notice. 35. It is further submitted that approval granted under s. 153D by the Additional CIT to the draft assessment order is without issuance of DIN. The final assessment order so passed under s. 153A in question on the basis of such invalid and non-est approval under section 153D is thus without sanction of law. Thus the assessment order passed is vitiated owning to non-conformity with the CBDT Circular No.19 of 2019. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 32 36. Intimation of DIN vide separate letter without mentioning the DIN on the body of the assessment order is not valid as per law because section has not been mentioned in the intimation letter that for which order this DIN was applicable. Sir, since assessment order u/s 153A and demand notice has been passed with invalid DIN, therefore, the assessment order so passed u/s 153A is null and void because DIN was not issued separately for demand notice and assessment order u/s 153A. the copy of separate intimation of DIN and copy of approval u/s 153D which is without DIN is enclosed herewith. 37. Relevant excerpt from the CBDT’s Circular No. 19/ 2019 is reproduced hereunder: “With the launch of various e-governance initiatives, Income-tax Department is moving towards total computerization of its work. This has led to a significant improvement in delivery of services and has also brought greater transparency in the functioning of the tax administration. Presently, almost all notices and orders are being generated electronically on the Income Tax Business Application (ITBA) platform. However, it has been brought to the notice of the Central Board of Direct Taxes (the Board) that there have been some instances in which the notice, order, summons, letter and any correspondence (hereinafter referred to as \"communication\") were found to have been issued manually, without maintaining a proper audit trail of such communication. 2. In order to prevent such instances and to maintain proper audit trail of all communication, the Board in exercise of power under Section 119 of the Income Tax Act, 1961 (hereinafter referred to as \"the Act\"), has decided that no communication shall be issued by any income tax authority relating I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 33 to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1st day of October, 20 19 unless a computer-generated Document Identification Number (DIN) has been allotted and is duly quoted in the body of' such communication. 3. In exceptional circumstances such as, - (i) when there are technical difficulties in generating/ allotting/ quoting the DIN and issuance of communication electronically; or (ii) when communication regarding enquiry, verification etc. is required to be issued by an income-tax authority, who is outside the office, for discharging his official duties; or (iii) when due to delay in PAN migration, PAN is lying with non- jurisdictional Assessing Officer; or (iv) when PAN of assessee is not available and where a proceeding under the Act (other than verification under section 131 or section 133 of the Act) is sought to be initiated; or When the functionality to issue communication is not available in the system,The communication may be issued manually but only after recording reasons in writing in the file and with prior written approval of the Chief Commissioner / Director General of income tax. In cases where manual communication is required to be issued due to delay in PAN migration. The proposal seeking approval for issuance of manual communication shall include the reason for delay in PAN migration. The communication issued under aforesaid circumstances shall state the fact that the communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner / Director I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 34 General of Income-Tax for issue of manual communication in the following format: “This communication issues manually without a DIN on account of reason/ reasons given in para 3 (i)/3(ii)/3 (iii)/3 (iv)/3 (v) of the CBDT Circular No ... dated ..... (Strike off those which are not applicable) and with the approval of the Chief Commissioner / Director General of Income Tax vide number.... dated..... 4. Any communication which is not in conformity with Para-2 and Para-3 above, shall be treated as invalid and shall be deemed to have never been issued. 5. The communication issued manually in the three situations specified in para 3- (i), (ii) or (iii) above shall have to be regularised within 15 working days of its issuance, by i. uploading the manual communication on the System. ii. Compulsorily generating the DIN on the System; iii. Communicating the DIN so generated to the assessee/any other person as per electronically generated pro-forma available on the System. 6. An intimation of issuance of manual communication for the reasons mentioned in para 3(v) shall be sent to the Principal Director General of Income-tax (Systems) within seven days from the date of its issuance. 7. Further, in all pending assessment proceedings, where notices were issued manually, prior to issuance of this Circular, the Income-tax authorities shall identify such cases and shall upload the notices in these cases on the Systems by 31th October, 2019.” 38. It is submitted that Paragraph 3 of the Circular sets out five exceptional circumstances where the aforementioned mandatory requirement may not be adhered to, but requires that if an order/communication is to be issued without a DIN, it can be done only after recording reasons in writing in the file and with the I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 35 prior written approval of the Chief Commissioner/Director General of Income Tax. Further, paragraph 3 requires that if such exceptional circumstances are claimed, the orders/communication issued without a DIN must state this fact in a specific format set out in paragraph 3 of the Circular. In the present case, no such reason/format is stated in the communication i.e. either in the assessment order or in the approval u/s 153D of the Act 39. Similarly, paragraph 4 of the Circular provides that any order/ communication which is not in conformity with paragraphs 2 and 3 of the Circular shall be treated as invalid and shall be deemed to have never been issued. 40. It is indisputable that the assessment order/demand notice/approval u/s 153D does not bear a DIN and further that the said order issued without a DIN does not bear the required format set out in paragraph 3 of the Circular and, therefore, the impugned assessment order is ought to be treated as invalid and deemed never to have been issued. 41. It is submitted that the assessment order and notice of demand are two separate communications qua the assessee and carry separate physical existence and identity, even though issued on the same date by the same Assessing officer pertaining to same assessment year and therefore, necessarily have to carry separate DIN on the body of the said communications. 42. In this regard reliance is placed on the decision of High Court of Calcutta, PCIT v/s Tata Medical Centre Trust &Ors dated 26.09.2023 (2023) 334 CTR (Cal) 942 in which it was held as under: Revision—Validity—Order passed by CIT without mentioning DIN— Tribunal upon examining the facts rightly held that the order does not incorporate the DIN and it is in violation of the Circular No. 19 of 2019, dt. 14th Aug., 2019—Further, the Revenue submitted that the intimation letter should be treated as part and parcel of the substantive order—However, in I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 36 the intimation letter there is nothing mentioned as to why in the substantive order the DIN was not mentioned as mandated in the circular—Tribunal was therefore justified in quashing the order passed under s. 263—No substantial question of law arises—Tata Medical Centre Trust vs. CIT (Exemption) (2023) 222 TTJ (Kol) 249 : (2023) 226 DTR (Kol)(Trib) 129 affirmed. Sir, regard reliance is placed on the decision of High Court of Bombay in the case of Ashok Commercial Enterprises v/s ACIT (2023) 334 CTR (Bom) 757 dated 04.09.2023. 43. Reliance is also placed on the decision of Hon’ble Chandigarh ITAT dated 22.12.2023 in the case of SPS Structures v/s DCIT, Chandigarh , ITA no. 130/Chd/2023 in which it was held as under: “21. ………………………..therefore, in the instant case, we find that assessment order and notice of demand are two separate communications qua the assessee and carry separate physical existence and identity, even though issued on the same date by the same Assessing officer pertaining to same assessment year and therefore, necessarily have to carry separate DIN on the body of the said communications. In view of the admitted position that there is no DIN on body of the assessment order (even though there is DIN on body of the notice of demand), the same will continue to be noncompliant with paragraph 2 of the CBDT Circular no. 19/2019 and carry the same consequences in terms of paragraph 4 of the CBDT Circular and will be held as invalid and never been issued.” Reliance is also placed on the decision of Hon’ble Amritsar ITAT in the case of M/s Shreeji Bihariji Colonisers and Builders pvt ltd. v/s ACIT, dated 22.07.2024, ITA48/ASR/2023 in which it was held as under: I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 37 14. We find that there are certain factual and legal distinguishing features in case of matters before Hon’ble Allahabad High Court, Hon’ble Kerela High Court and Hon’ble Jharkhand High Court relied by the department and therefore, these decisions stand distinguishable and cannot come to the aid of the Revenue or be held against the assessee unlike the decisions rendered by the Hon'ble Delhi High Court in the case of CIT (International Taxation) v. Brandix Mauritius Holdings Ltd. (supra), Hon’ble Calcutta High Court in the case of Principal Commissioner of Income Tax v. Tata Medical Centre Trust, (supra) and the Bombay High Court in the case of Teleperformance Global Services (P) Ltd. v. ACIT (supra) which have a clear bearing on the matter under consideration and supports the case of the assessee. Having said that, we have a situation where contrary views have been expressed by the non- jurisdictional High Courts and there is no jurisdictional Punjab and Haryana High Court decision where necessary guidance can be drawn from. In such a scenario, we are guided by the decision of the Hon’ble Supreme Court in case of Commissioner of Income tax vs M/s Vegetables Products Ltd reported in 88 ITR 192 where it was held that where the provision is capable of more than one reasonable interpretation and different High Courts have taken different view or matter, the view which is favourable to the assessee should be adopted. In view of the same, we are inclined to follow the views expressed by Hon’ble Delhi High Court, Hon’ble Bombay High Court and Hon'ble Calcutta High Court delivered on the issue of the validity of order in absence of DIN on department communications. 15. Considering the factual matrix of the case and judicial precedents, as the matter have reached the respective Hon’ble High Courts and that the findings of the Tribunal have been upheld in case of Brandix Mauritius Holding Ltd. and Tata Medical Centre Trust. Thus, the issue of non maintaining of DIN on I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 38 the body of the statutory order is a defect which is not even curable u/s 292B of the Act because in the absence of DIN on the body of the order, the said order is deemed to never been issued. We, therefore, respectfully following the collective wisdom as expounded in various decisions rendered by the Coordinate Benches across the Country, do not see any justifiable basis to deviate from the same. 16. In the backdrop of the aforesaid discussion and in the entirety of facts and circumstances of the case, we are of the considered view that the impugned order passed u/s 153C r/w 143(3) cannot be upheld and deserve to be set-aside as the same has been passed in violation of CBDT Circular no 19/2019 r/w CBDT and Circular No 27/2019 and the same is hereby treated as non-est in eyes of law. Thus considering the settled legal position, it is requested that addition made in the hands of assessee may kindly be deleted. d) Assessee arguments on merits of the case : Sir, it is submitted that addition has been made in the hands of assessee for the reason that as per Ld. AO assessee carried unaccounted production of cigarettes/filter during the year under consideration but there is reference in the assessment order to substantiate the fact that there was any unaccounted production for the year under consideration. There was no material found during the search which could prove/show that assessee carried unaccounted production. Sir, during the course of assessment proceedings notices were issued to the assessee to which assessee stated as under: “Neither I nor my family have any business interest in the companies/firm dealing in manufacturing of cigarettes. In this connection it is submitted as follows: I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 39  It is fact that my family own business premises of the factory where the business of manufacturing of cigarette has been conducted.  The person to whom we have rented out the property is running the business.  The Excise license /GST number/VAT number is in the name of the person who is running the business  The rent deed of the premises is already available with your goodself in the seized record and there is also an affidavit confirming the fact that the same person is running business in his own name and we do not have any business connection with him.” Sir, it is submitted that addition has been made in the hands of assessee for the reason that as per Ld. AO assessee carried unaccounted production of cigarettes/filter during the year under consideration, whereas it relevant to consider the following points: 1. That no unaccounted sale/receipt was found during the search. 2. That no unaccounted purchase was found during the search. 3. That no unaccounted/unexplained diary was found during the search. 4. That no unaccounted/excess/short stock was found during the search. 5. That no unaccounted production was found during the search. 6. That no unaccounted machinery was found during search. 7. That no unaccounted labour was found during the search. 8. That no unauthorized movement of stock was found during the search. 9. That no unaccounted debtor/creditor/expense was found during the search. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 40 10. That no proof of under billing / over billing was found during the search. 11. That no mismatch have been found with VAT/GST Authorities during the search. 12. That RG-1 registers, books, documents of the respective concerns were found and seized which duly reconciled with returns and books/balance sheets filed to the departments. Sir, relevant facts of the case of asessee are submitted as follows:  All the time, when manufacturing process were undertaken from 2012 to 2017, it was mandatory as per para 10 of instructions dated 24.12.2008 issued vide F. No. 224/37/2005 by CBEC that round the clock presence of central excise office in the factory is required to control and supervise the operation of cigarettes. Copy of said circular is enclosed herewith.  The central excise official marked with seal the production machinery when they leave the factory premises and deseal the same only on our request for production. This fact can be verified from the RG 1 register of the respective firms/companies which was filed before the assessment and appellate proceedings.  Ld. AO during assessment proceedings made enquiry from Central Excise department wherein the sale/ production had been confirmed.  That Ld. AO during post search enquiry issued hundreds of letter to different persons to enquire about the purchase and sales made out of books of accounts but failed to establish that any transaction of sales or purchases made outside the books of accounts.  That assessee and related respective concerns are regularly filing income tax return and assessee has disclosed and filed true facts to all the authorities. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 41  That your attention is drawn to the fact that M/s IJM International, M/s Inayat Global Pvt. Ltd, M/s Karsh Enterprises, M/s Nagahia Sons were in cigarette manufacturing and since beginning of this there was round the clock presence of Central Excise Officer, so that there is no unauthorized removal of goods and there is proper supervision and control over operations of the these concerns. Thus unaccounted sales/production is not possible as the premises were thoroughly checked by the Excise department and was totally under the control of Excise department. The circular dated 01.05.2017 no.1055/04/2017- CX is enclosed herewith which justifies the claim of assessee. Thus there is no possibility of unauthorized/unaccounted production.  The copy of RG-1 which reflects daily production and bears the signature of excise authority/officer who is supervising the production of the respective concerns along with other relevant details with respect to machinery etc which was filed before the assessment and appellate proceedings. These registers are part of seized material also and this fact can be verified from the Ld. AO also.  That the premises were totally under the control of excise department. The goods were removed with the authorization of the Superintendent only. When the productions stops the machines were sealed with proper stamping on it and later next day when production starts the seal was removed by the superintendent only and there was no interference by the assessee.  The addition made in the hands of assessee raises the question on the excise authorities because the production in the respective concerns was always under their supervision and monitored by them, more so when office has already obtained information from the Central Excise Department in this respect.  That these facts were stated to the ld. AO also during the assessment proceedings also but he has not rebutted the same in the entire body of assessment order and merely relied on statement recorded. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 42  Sir, if the entire working is viewed by the Central Excise officer round the clock there is no chance of unaccounted production or under reported manufacturing . Sir, no attention was given to the above stated points nor to our submissions and the AO never rebutted our facts and mentioned only the statement of the employees recorded during search.Whereas , no attention was given to the facts that the employees whose statement has been considered were contradicting and changing there own statements and they were recorded under pressure and they threatened time to time during the course of recording of statements. 44. Moreover in the order it is stated that total production of Cigarette packets in four units is 7,28,00,000 packets or more as per the relelvant year which is totally baseless and without considering the fact that neither assessee nor his family members have interest in these firms. They have only given factory premises on rent which has been evident from the rent deeds seized during the course of search. Further the facts contradictory to the allegations made against assesse is given as follows:  All the four unit where the business of cigarette is being run were monitored by Central Excise department till June, 2017.  Time to time inspection was made by the superintendent level officer of these units and during search your goodself seized record of the same wherein no officer from 2012 to 2017 ever made any comment about the ownership of these business at the time of inspection or audit. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 43  All the time, when manufacturing process were undertaken from 2012 to 2017, it was mandatory as per para 10 of instructions dated 24.12.2008 issued vide F. No. 224/37/2005 by CBEC that round the clock presence of central excise office in the factory is required to control and supervise the operation of cigarettes. Copy of said circular is enclosed herewith.  Had assessee or family were having any interest in the said business then the officer sitting all the time there and the officer monitoring production from time to time must have pointed out that the real owner are not the same who are running the business. 45. Thus, considering the fact that no unaccounted production was undertaken by assessee and other facts stated above and following case laws cited above, it is requested that no adverse inference may kindly be drawn against the assessee and addition made in the hands of assessee may kindly be deleted. Assessee submission for AY 2012-13 and AY 2013-14, in respect of addition of Rs.10,00,000/-: The Ld. AO. has made an addition amounting to Rs 10,00,000/-in the hands of assessee on account of expenses incurred by the assessee on his son’s marriage i.e. first son Sh. Ankush in AY 2012-13 and second son Sh. Ankur in AY 2013-14 without considering the following facts:  That at the time of search no documents were found on the basis of which such addition is made in hands of assessee.  That no contrary evidence were brought on record by Ld. AO. which could question the genuinity that assessee has actually incurred expenses of Rs 10,00,000/- at marriage expenses of his son. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 44  That the reply filed by the assessee at the time of assessment proceedings regarding such contention was as follows: “assessee solemnized marriage of his son in a very simple manner. The functions related to marriage were organized by his in-laws. Assessee only organized small family function at home that was a small dinner party with closed ones and the expenditure incurred during that time was related to groceries , drinks and other snacks served during the party and the payment for the same was made in cash and the source of the payment was out of savings of the family and an estimated expenditure of Rs 1,50,000/- was incurred . Since the families had already decided that the marriage functions would be with closed family members and friends only. Therefore very limited guests were invited and all the expenditure related to family functions were incurred by his in- laws.” Sir, keeping in view the above facts the addition amounting to Rs 10,00,000/- made u/s 69C on account of unexplained expenditure should be deleted as there is no supporting document to proof the contention that assessee has actually spend amount of Rs 10,00,000/- as marriage expenditure neither any documents were found at the time of search which could proof the same. So, the addition made in the hands of assessee on account of marriage expenses should kindly be deleted. Thus, considering the facts and circumstances of the case and case laws cited above, it is requested that no adverse inference may kindly be drawn against the assessee and addition made in the hands of assessee may kindly be deleted. Assessee submission for AY 2013-14, AY 2017-18 and AY 2018-19 additions 2,00,000/- I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 45 The Ld. AO. has made addition amounting to Rs 2,00,000/-on estimate basis in the hands of assessee on account of foreign tour expenses without considering the following facts:  That at the time of search no documents were found on the basis of which such addition is made in hands of assessee.  That no documentary evidence were brought in record by Ld. AO. which could question the genuineness that assessee has actually incurred expenses of Rs 2,00,000/- on his foreign tour.  That assessee during his response at the time of assessment proceedings has clarified that the source of such expenditure is out of cash savings.  That the addition made by Ld. AO. without any supporting evidence and documents is not valid in the eyes of law. Sir, considering the above facts , the addition amounting to Rs 2,00,000/- made u/s 69C ,on account of unexplained expenditure ,without proving or bringing on record any evidence that the assessee has incurred said expenditure on foreign tour , may kindly be deleted . AY 2012-13 to AY 2019-20 Submission regarding addition of Unexplained receipts amounting to Rs. 1,05,53,458/- in AY 2012-13 and all subsequent years 2019-20. It is submitted that the AO has made an addition amounting to Rs 1,05,53,458/- on account of unaccounted money without considering the following facts :  That the assessee has already disclosed the sale / gross receipts on account of sale and purchase of property amounting to Rs 1,06,35,600/- in trading profit and loss account prepared during the year. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 46  That the assessee has also disclosed the same in his original income tax return and applicable taxes are paid thereon.  That the assessee at the time of assessment proceedings has already clarified the doubt raised by the AO regarding the receipts by filing his response stating that these are regular business receipts which is being declared year on year basis. The receipts and or sales shown in the profit and loss account during the relevant year under consideration amounting to Rs. 1,06,35,600/- it is stated that assessee is engaged in the business of trading of sale /purchase of property. Assessee also earns commission on account of sale /purchase of property wherein there is no legal documentary evidences registered in the name of assessee. In some cases assessee made agreements for purchase and sold the same to third party in the course of transaction without registration being done in his name. In such scenarios the profit of assessee in the said transaction has duly been shown in the books of accounts maintained during the year. During the course of examination in personal hearing, regular books of accounts were produced and no discrepancy has been pointed out by AO and the assessee has duly declared the income earned on said account in the profit & loss account and paid the due taxes and the return has been duly accepted & processed u/s 143(1) of the Act by the department.” Sir, the Ld. AO without considering the above submission has made the alleged addition in the hands of assessee.  That Ld. AO. has considered and accepted the receipts amounting to Rs.21,55,210/- received by the assessee on account of sale and purchase of property for the AY. 2011-12 and no addition were made in the hands of assessee for the relevant year. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 47  That during the AY.2017-18, the assessee was also engaged in the same business that is , trading of Sale and purchase of property and the receipts from such business amounting to Rs 1,27,92,160/- has been accepted by the Ld. AO. in the Assessment order passed u/s 143(3) dated 31/12/2019. 46. It is settled in law that AO cannot sit on the chair of assessee to decide the sales as per his choice to categorize into so called bogus sales and non- bogus sale . In the case of ‘S. A. builders Ltd vs. CIT(A) (Supra) it is held that it is for the assessee to take care his business exigency and assessee is on his free will to do business, as per his wisdom and his arm cannot be twisted to do the business, as per the choice of anybody else. In our case A.O tried to twist the arm of the assessee by twisting his sales and forgot that whatever he has done, he has done as per his business exigency and wisdom at any given time and no hypothesis can be applied by A.O just sitting on his chair”. Sir, the Ld. AO has not followed the principle of consistency that in one year i.e AY.2011-12 and AY.2017-18 he is accepting the receipts of the assessee on account of sale and purchase of property and for other year i.e AY. 2012-13 and subsequent years he is rejecting the same. Sir, it not a case wherein assessee has not disclosed his receipts from such business in his original return . Assessee year on year basis is filing his return and regularly disclosing true and actual income including the receipts earned on account of sale and purchase of property which is also accepted in the AY. 2011-12 and AY. 2017-18. Thus, the addition made on account of unexplained deposits may kindly be deleted. Asst year : 2019-20 : Submission of the assessee in respect of addition of Rs. 2,00,00,000/- I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 48 Sir, as regards addition of Rs.2,00,00,000/-, it is submitted that in the list of Sundry creditors, the balance in the name of M/s LTE Info Technology Pvt. Ltd. stands at Rs.2,00,00,000/-, and in this regard, it is stated that during the course of assessment proceedings also, the assessee had submitted the copy of incorporation certificate and Memorandum of Association(MOA) of the said company, along with the balance sheet showing the balance of assessee in the books of M/s LTE Info Technology Pvt. Ltd. as on 31.03.2019, which proves the genuineness of the transaction and creditworthiness of the company, but the Ld. AO did not consider the same and made addition in this regard. Sir, as regards the amount received from M/s LTE Info Technology Pvt. Ltd. in the bank account, it is submitted that the confirmed copy of ledger account as appearing in the books of assessee was also filed during the course of assessment. The identity, genuineness of transaction and creditworthiness has been established. 1. Identity of the Creditor : LTE INFO TECHNOLOGIES PRIVATE LIMITED CIN NO. : U72900DL2009PTC192207, EMAIL ID: [e-mail] Registered Office: Shop No.-49, Ground Floor, Vardhman Market, Ram Vihar, East Delhi, Delhi 110092 2. Genuineness- The company is still in operation and the payments have been received through bank payments, which proves that the transaction is genuine, moreover the balance sheet of the company has been already placed on record. The I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 49 copy of confirmed ledger account of the company as appearing in the books of the assessee has been already placed on record during assessment proceedings. 3. Creditworthiness- The transaction was carried through bank account. The company earned interest income and revenue from its operations, which is duly reflected in the balance sheet, which proves the creditworthiness of the company. Advesrse observation by Ld. AO Remarks The assessee has failed to explain the genuineness and creditworthiness of the creditor. The assessee had provided complete information regarding the company, which proves their genuineness and creditworthiness. It is not a mistake of assessee if the company had not provided details as asked for, in notice issued u/s 133(6). But the assessee has furnished complete details available with it. The failure on the part of the assessee to prove the genuineness and creditworthiness of the creditor results in the treating the transaction as unexplained within the meaning of section 68 of the Act. The assessee had proved the genuineness and creditworthiness of the company in the aforementioned paras, so the transaction should not be treated as unexplained u/s 68 of the Act. Sir, it is further submitted that assessee has explained the source of transaction along with documentary proof substantiated by the evidences stated above. The assessee is not required to explain the source of source. The source of source can be questioned from them only and not from the assessee. Once it is proved and accepted by them that they made payments to assessee, the transaction stands explained in the hands of assessee. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 50 Sir, it is stated that once the assessee furnishes CIN no., proof of address, confirmation, it is presumed that identity and creditworthiness is proved. Ld. AO made addition on the surmises, conjectures and assumptions and without any corroborative evidences. 47. In this regard, reliance is placed on the following decisions: Debjyoti Dutta v/s ITO, ITAT Cuttack, ITA 390/Ctk/2014 in which it was held as under: Income—Cash credit—Discharge of burden of proof—Amount of Rs. 25,00,000 was taken by the assessee from M through the brother of the assessee—M is residing at Bangalore, and his address and PAN was given to the AO for verification—AO issued summons under s. 131 for personal attendance with proof of identity—However, M was not able to come to Orissa due to his illness—He submitted his bank statement and other details to prove that the transactions have been done—Jurisdictional AO of Bengaluru was also required to examine and report the matter within 20 days but he did not examine and send the report—This fault of the AO cannot be attributed to assessee alleging his failure in discharging the onus to establish genuineness of transaction and identity and creditworthiness of the creditor—When the assessee submits plausible explanation corroborated with all possible documentary evidence under his control and command in the form of PAN, bank statement and confirmation, then it has to be held that the assessee has discharged the onus that lay on his shoulders as per the requirement of s. 68—When the assessee has furnished his bank accounts, PAN and proof of address, it cannot be presumed that the identity I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 51 and creditworthiness has not been proved—Onus shifted on the AO to contradict explanation of the assessee but there is no exercise by the AO in this regard for dismissing the explanation and corroborative evidence adduced by the assessee—Once there is proof of taking and repaying the loan, the addition in this regard is not called for.” 48. The Hon’ble Gauhati High Court in the case of Nemi Chand Kothari v/s CIT (2003) 264 ITR 254 (Gau) has held as under: Income—Cash credit under s. 68—Genuineness—Onus of proof—Identity of creditors established by assessee and the amounts were paid through account payee cheques—Failure of creditors to establish creditworthiness of sub-creditors cannot be a ground for addition in the hands of assessee Held: A person May have funds from any source and an assessee, on such information received, May take loan from such a person. It is not the business of the assessee to find out whether the source or sources from which the creditor had agreed to advance the amounts were genuine or not. If a creditor has, by any undisclosed source, a particular amount of money in the bank, there is no limitation under the law on the part of the assessee to obtain such amount of money or part thereof from the creditor, by way of cheque in the form of loan and in such a case, if the creditor fails to satisfy as to how he had actually received the said amount and happened to keep the same in the bank, the said amount cannot be treated as income of the assessee from undisclosed source. In other words, the genuineness as well as the creditworthiness of a creditor have to be adjudged vis-a-vis the transactions, which he has with the assessee. The reason why we have I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 52 formed the opinion that it is not the business of the assessee to find out the actual source or sources from where the creditor has accumulated the amount, which he advances, as loan, to the assessee is that so far as an assessee is concerned, he has to prove the genuineness of the transaction and the creditworthiness of the creditor vis-a-vis the transactions, which had taken place between the assessee and the creditor and not between the creditor and the sub-creditors, for, it is not even required under the law for the assessee to try to find out as to what source or sources from where the creditor had received the amount, his special knowledge under s. 106 of the Evidence Act May very well remain confined only to the transactions, which he had with the creditor and he May not know what transaction(s) had taken place between his creditor and the sub-creditor. No such additional burden can be placed on an assessee, which is not envisaged by s. 106 of the Evidence Act. The Revenue/AO, however, remains free to show that the amount, which has come to the hands of the assessee by way of loan from the creditor actually belonged to the assessee, but this conclusion cannot be reached by mere failure on the part of the sub-creditor to show his creditworthiness and/or the genuineness of the transaction between the creditor and sub-creditor, for, the creditor May receive any amount from sources known to the creditor only and if he fails to show how he has received the amount, in question, or if he fails to show the creditworthiness of his sub-creditor, such an amount May be treated as the income from undisclosed source of the creditor or of the sub-creditor, as the case May be, but such failure, on the part of the creditor cannot, in the absence of any clinching evidence, be treated as the income of the assessee derived from undisclosed source. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 53 Keeping in view the above position of law, when we turn to the factual matrix of the present case, we find that so far as the appellant is concerned, he has established the identity of the creditors, namely, Nemichand Nahata and Sons (HUF) and Pawan Kumar Agarwalla. The appellant had also shown, in accordance with the burden, which rested on him under s. 106 of the Evidence Act, that the said amounts had been received by him by way of cheques from the creditors aforementioned. In fact, the fact that the assessee had received the said amounts by way of cheques was not in dispute. Once the assessee had established that he had received the said amounts from the creditors aforementioned by way of cheques, the assessee must be taken to have proved that the creditor had the creditworthiness to advance the loans. Thereafter the burden had shifted to the AO to prove the contrary. On mere failure on the part of the creditors to show that their subcreditors had creditworthiness to advance the said loan amounts to the assessee, such failure, as a corollary, could not have been and ought not to have been, under the law, treated as the income from the undisclosed sources of the assessee himself, when there was neither direct nor circumstantial evidence on record that the said loan amounts actually belonged to, or were owned by, the assessee. Viewed from this angle, we have no hesitation in holding that in the case at hand, the AO had failed to show that the amounts, which had come to the hands of the creditors from the hands of the sub-creditors, had actually been received by the sub- creditors from the assessee. In the absence of any such evidence on record, the AO could not have treated the said amounts as income derived by the appellant from undisclosed sources. The learned Tribunal seriously fell into error in treating the said amounts as income derived by the appellant from I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 54 undisclosed sources merely on the failure of the sub-creditors to prove their creditworthiness. It is, no doubt, true that in the present case, the findings arrived at by the AO as well as the learned Tribunal are findings of fact, but since these findings are based on an wholly erroneous view of law, such findings cannot be said to be mere findings of facts. It is trite that no assessment can be made contrary to the provisions of law. In the case at hand, the very basis for making assessment is under challenge. If the assessment is based on a completely erroneous view of law, such findings cannot be regarded as mere findings of fact, but must be treated as substantial question of law, particularly, when the very basis of the assessment is on a wrong interpretation of law. Viewed from this angle, we are firmly of the view that the question raised in the present appeal is a substantial question of law inasmuch as the same goes to the very root of the assessment made and we have no hesitation in answering the same in the negative. 49. The Hon’ble Madhya Pradesh High Court in the case of CIT vs. Metachem Industries (2000) 245 ITR 160 (MP) has held as under: \"Once it is established that the amount has been invested by a particular person, be he a partner or an individual, then the responsibility of the assessee is over. Whether that person is an income-tax payer or not and where he had brought this money from, is not the responsibility of the firm. The moment the firm gives a satisfactory explanation and produces the person who has deposited the amount, then the burden of the firm is discharged and in that case that credit entry cannot be treated to be the income of the firm for the purposes of income-tax.\" I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 55 50. The Hon’be Rajasthan High Court in the case of CIT vs. Jai Kumar Bakliwal (2014) 366 ITR 217 (Raj) has held as under :- Income—Cash credit—Genuineness—While the assessee has to prove as special knowledge i.e. from where he has received the credit and once he disclosed the source from which he has received money, he must also establish that so far as his transaction with his creditor is concerned, the same is genuine and his creditor had the creditworthiness to advance the loan which the assessee had received—When the assessee discharges the burden so placed on him, onus then shifts to the AO, if the AO assesses the said loan as the income of the assessee from undisclosed source he has to prove either by direct evidence or indirect/circumstantial evidence that the money which the assessee received from the creditor actually belong to and was owned by the assessee himself—There is no clinching evidence in the present case nor the AO has been able to prove that the money actually belonged to none but the assessee himself—Action of the AO appears to be based on mere suspicion—Addition under s. 68 was not therefore sustainable 51. The above stated case of Hon’ble Rajasthan High Court squarely covers the present issue as:- 1. Assessee has received credit and has also disclosed the source from which money was received along with its identity and also proved the credit worthiness of the creditor. 2. Assessee has discharged the burden so placed on him and shifted the burden to the Ld. AO. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 56 3. There is no direct evidence or indirect/circumstantial evidence that the money which the assessee received from the creditor actually belongs to and was owned by the assessee himself. 52. Thus, considering the facts and circumstances of the case and case laws cited above, it is requested that no adverse inference may kindly be drawn against the assessee and addition made in the hands of assessee may kindly be deleted. 53. AY 2017-18 and AY 2018-19 and AY 2019-20 Submission of the assessee in respect of the alleged unexplained investments in construction of building located at 518 Model Town, Jalandhar , additions u/s 69B of the Act 61 : Rs 27,61,732/- in Asst Year: 2017-18, Rs. 1,05,974/- in Asst Year: 2018-19 Rs. 1,05,132/- in Asst Year: 2019-20 54. It is submitted that the entire additions u/s 69B of the Act 61, has been made on the basis of department valuation officers report only and it is submitted that addition has been made on the basis of valuation report and there is no material on record which could reflect assessee made unexplained investment. Further no incriminating material was found during the course of search with respect to this addition and with respect to all the other additions made in the assessment order. DVO report has been obtained post search , and the entire investment in immovable property has been duly disclosed in regular books of accounts and yearly balance sheet, and regular returns . In course of search , no documents has been found to establish the allegation of extra investment in the said property. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 57 55. It is stated that , this issue is also settled by The Hon’ble Supreme Court of India in the case of PCIT-3 vs. Abhisar Buildwell Pvt. Ltd. in Civil Appeal No. 6580 of 2021 vide order dated 24.04.2023 in which it is made clear that no addition can be made in case no incriminating material was found during search u/s 132 of the Act 61. 56. Therefore, in view of above submissions and judgments, jurisdiction assumed by Ld. AO u/s 153A/143(3) is bad in law and impugned assessment order may please be quashed. 57. It is further submitted that addition is made merely on the basis of DVO valuation report only, without bringing on record any material , to show or establish that unaccounted investment has been made by the assessee. The law has been settled by various courts that addition cannot be made only on the basis of valuation report, which is just a tool for guidance of the AO and is just an opinion of a technical expert , and without any evidence or material brought on record by the AO , an addition u/s 69B cannot be sustained simply on the basis of an opinion. Reliance is placed on the case of CIT v. Berry Plastics P. Ltd. (2013) 35 taxmann.com 296 (Guj), the Hon’ble Gujarat High Court has made the follwing observations: 7. Revenue carried the matter in appeal. CIT(A) dismissed the Revenue's appeal in following terms : \"6. After hearing the parties and perusing the record we find that there is no dispute about the fact that in this case addition has been made by the AO on the basis of DVO report obtained by him during the assessment proceedings. learned CIT(A) has given relief to the assessee by placing reliance on the I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 58 decision of the Hon'ble apex Court in the case of K. P. Varghese vs. ITO &Anr. (1981) 24 CTR (SC) 358 : (1981) 131 ITR 597 (SC) wherein it was held that income must accrue or should be received by the assessee over and above declared by the assessee and the same should not be deemed to accrue or to be received which in fact never accrue or was never received. In the instant case, the AO has not brought on record any material to show that assessee paid higher consideration towards his investment in land and building then shown by him in his books of account. In absence of such material no addition can be made. learned CIT(A), therefore, has rightly deleted this addition of Rs. 40,24,460 based on the report of DVO and the order passed by him is hereby upheld. In the result, Revenue's appeal is dismissed.\" 8. Before us counsel for the Revenue vehemently contended that there was considerable gap between the valuation disclosed in the sale deed, which was also adopted for the purpose of assessee's books and what was estimated by the Stamp Duty Authority for the purpose of collecting stamp duty. He submitted that the AO, on the basis of DVO's report, found that the investment was much greater than what was reflected in the books made by the assessee in purchase of such property. counsel placed heavy reliance under s. 142A of the Act in support of his contention. 9. We are of the opinion that CIT(A) as well as the Tribunal committed no error in deleting the additions made by the AO. It is undisputed that the sole basis for making the addition was the DVO's report. DVO's report may be a useful tool in the hands of the AO, nevertheless it is an estimation and without there being anything more, cannot form basis for additions under s. 69B of the Act. In absence of any other material on record, addition was correctly deleted. The appeal is, therefore, dismissed.” I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 59 58. Further reliance is placed on the decision of the Hon’ble High Court of Delhi in the case of CIT v/s Sadhna Gupta Source (2013) 352 ITR 595 (Del) : (2013) 214 Taxman 540 (Del) in which it was held as under: “5. The law seems to be well settled that unless and until there is some other evidence to indicate that extra consideration had flowed in the transaction of purchase of property, the report of the DVO cannot form the basis of any addition on the part of the Revenue. In the present case there is no evidence other than the report of the DVO and, therefore, the same cannot be relied upon for making an addition. In these circumstances, the question which has been framed is decided in favour of the assessee and against the Revenue. The appeal is dismissed.” 59. Decision of Hon’ble High Court of Delhi in the case of CIT v/s Puneet Sabharwal Source (2011) 338 ITR 485 (Del) in which it was held as under: “Income from Undisclosed Sources—Unexplained or undisclosed investment—Addition towards on-money based on report of valuation officer—AO made the addition in the income of the assessee on the basis of DVO report—Apart from the said report of the DVO, there was no evidence on record that some extra consideration was paid by the assessee for acquiring the property over and above the consideration stated in the sale deeds—Opinion of the DVO per se was not sufficient and other corroborated evidence is required—Notwithstanding the report of the DVO, the Revenue had to prove that the assessee had in fact received extra I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 60 consideration over and above the declared value of the sale—Therefore deleting the addition by the Tribunal was right” 60. Decision of Hon’ble High Court of Karnataka in the case of CIT v/s Vasu dev Constructions Source (2014) 99 DTR (Kar) 416 : (2014) 363 ITR 247 (Kar) in which it was held as under: “Search and seizure—Block assessment—Computation of undisclosed income—Difference in the cost of construction cannot constitute undisclosed income for the block period—On verification of the revised report submitted by the DVO, the difference between the valuation of the assessee-firm and the DVO is less than 15 per cent—There is no specific finding by the AO with regard to any concealment—Further, there was no material found during the search indicating that there were expenses incurred on construction by the assessee that were not recorded in the books of accounts—In the absence of any seized material and solely on the basis of the report of the DVO, there cannot be any finding with regard to the undisclosed income” 61. Thus on the basis of above submissions and principles laid down by various Courts it is requested that addition made in the hands of assessee may kindly be deleted. 62. It is further submitted that till the date of search assessee has done only civil structure of the property and no sanitary / elevation has been done. The valuation officer has hypothetically estimated the figures on the basis of value of I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 61 construction. No reliance has been placed upon the standard rates specified by the government authorities. So, it is requested that no adverse inference may kindly be drawn against assessee. 63. It has been further argued that in the instant case the impugned addition has been made on the basis of report by DVO regarding construction cost of the property in question. The assessee claimed cost of construction on the actual expenditure incurred and booked in the books of accounts on the other hand the AO made addition by relying on value estimated by the DVO. Sir, in the present case the DVO had taken value of fully constructed property but in fact the construction of property was yet to be completed and also he applied CPWD rates whereas it is settled that State PWD rate is to be applied for estimating the value of property.Sir, it is also brought to your notice that original assessment has already been completed u/s 143(3) of the Act for AY 2017-18 and the value declared by assessee has already been accepted whereas after search proceedings Ld. AO is making addition in the hands of assessee without any incriminating material on record. Thus the addition made is to be quashed on this ground alone. 64. The valuation reported by the valuation officer of the said property has been done for ₹ 263.99 lacs for total area of 21257 sq feet. The cost of area per sq feet comes to ₹ 1241/- which is totally hypothetical and not based upon the actual PWD rates for the year 2016 to 2020. Till date, only civil work has been completed on the said property and as per PWD standards, normal rate for civil structure work is ₹ 650/- per sq feet. Total cost considering the normal rate of ₹ 650/- x 21,257 sq feet area comes to ₹ 138.17 lacs against which assessee alongwith his family members has invested ₹ 157.72 lacs. Apart from civil structure other expenditure on elevation and exterior work are still pending to be incurred. The valuation officer has wrongly taken rate per sq feet for determining the amount incurred on I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 62 the construction which is even more than the actual cost per sq feet for fully furnished property. It is further submitted by the assessee as follows: a) The valuation officer has adopted the rate as per CPWD whereas the rates of PWD of respective state should have been applied for valuation and the same is settled by law, held by Hon’ble Court that rates of PWD are to be applied. b) While valuing the basement of the property the valuation officer has taken the rate as Rs. 2872/- per sqft against the normal rate for civil structure of Rs. 1300-1400 per sqft as per PWD standards. c) During the valuation of basement valuation officer has separately valued the basement wall at Rs. 12,00,000/- which is against the standard. The valuation of said wall should include in the PWD rates of Rs. 1300/- per sqft. So, the figures of valuation have been hypothetically overvalued. d) As regard valuation of ground floor it is stated that the valuation officer has taken the rate as Rs. 1552/- per sqft against the normal rate for complete construction of Rs. 700/- per sqft as per PWD standards. e) As regard valuation of first floor it is stated that the valuation officer has taken the rate as Rs. 1467/- per sqft against the normal rate for complete construction of Rs. 600/- per sqft as per PWD standards. I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 63 It is further explained that till the date of search assessee has done only civil structure of the property and no sanitary / elevation has been done. The rates of complete construction as per PWD are Rs. 700/- and Rs. 600/- for ground floor & first floor respectively and we have incurred Rs. 157.71 lacs on the construction of said property till that date. The valuation officer has hypothetically estimated the figures on the basis of value of construction. 65. Relaince is placed on the decision of Hon’ble ITAT Delhi in the case of Ecstasy Buildcon Pvt. Ltd. v/s DCIT, dated 10.10.2022 ITA no.1127/DEL/2021 in which it was held as under: “184. We have heard the rival submissions of the parties and perused the material available on records. It is not in dispute that the impugned addition has been made on the basis report by DVO regarding construction cost of the property in question. The assessee claimed cost of construction on the actual expenditure incurred and booked in the books of accounts on the other hand the AO made addition by relying on value estimated by the DVO. The assessee pointed to two serious lacuna in the report; (i) the DVO applied CPWD rates for estimating the cost of construction and; (ii) the DVO had taken value of fully constructed property but in fact the construction of property was yet to be completed. We find merit into the contentions of the learned counsel for the assessee as it is well settled that State PWD rate is better guiding factor for arriving at cost of construction of the property. Moreover, the Revenue has not rebutted the claim of the assessee that the property in question was yet to be completed and the DVO took the value of completed property coupled with fact that no evidence is brought on record by the AO suggesting that any expenditure more than what was booked by the assessee in its books of accounts has been I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 64 incurred. In the absence of such evidence, the cost adopted by the AO is merely an estimation and pure guess work. Therefore, following our decision in the case of Ecstasy Buildcon (P) Ltd. In ITA No. 1127/Del/2021 (supra), we hold that the action of AO for making addition partly on the basis of a report by DVO who has failed to take note of the judicial pronouncements, adopted CPWD rate for the purpose of estimation of cost of construction cannot be sustained. We, therefore, direct the AO to delete the impugned addition. The Ground of Assessee’s appeal is allowed and corresponding ground and Revenue’s appeal is dismissed.” 66. Finally the Ld. AR of the assessee prayed that the addition made in the hands of assessee on the basis of valuation report only and without any incriminating material on record, and none found in course of search, the additions has been rightly deleted by the Ld. CIT (A) and the order of the Ld first appellate authority may please be upheld. 67. We have heard the rival submissions at length on all the issues and considered all the materials on record and the written arguments and submissions filed by the assessee, which is taken on record. 67.1 We are of the opinion that , in the instant case no incriminating materials has been found from the premises of the assessee in course of search and seizure carried out u/s 132 of the Act 61 , in fact no materials has been found and the entire assessment has been based on estimation of alleged suppression of production of cigarette and filters, worked out on the sole basis of statements of employees and other persons recorded in course of survey u/s 133A carried out in adjoining premises of the four manufacturing units , which admittedly belongs to other parties, who are all legally distinct and separate entities , with separate PAN, Central Excise registration, GST registration, income tax returns and separate assessments . Any document impounded in form of registers and annexures as I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 65 stated in the remand report, has been collected from the four separate units, and the impounded documents has already been considered while framing assessments of such manufacturing units, if the same is found unrecorded in regular books of accounts, to which the assessee cannot be under any concern. Moreover, it is already explained and put on record, that whatever documents has been found and impounded in survey proceedings related to the aforesaid four concerns, are duly accounted for in regular books of accounts and relevant registers and are already before the AO and no adverse inference has been drawn. 67.2 Moreover, we are also in agreement with the submission and explanations of the assessee, as recorded in the above paragraphs, regarding control and supervision of the entire quantity manufactured and sales thereof, being done under Central Excise authorities, and duly recorded in appropriate register, stamped and authenticated by Central Government officers, and as such the suppression of production and sales in this cases are ruled out, without any documentary evidences , being brought to the contrary. 67.3 We are also in agreement with the objection of the assessee on the issue of DIN not being mentioned in the body of the assessment order and notice of demand, separately, as per provisions of the Board Circular no - 19 of 2019. In the instant case DIN has been generated by issue of separate intimation by way of a common DIN, for order, Notice (Demand Notice) and letter of approval u/s 153D of the Act 61. This generation is technically defective , because the assessment order u/s 153A and demand notice u/s 156 is a communication meant for the assessee from the concerned AO and the approval u/s 153D, is a communication from the Ld JCIT / CR , Jalandhar to the AO / ACIT/ CC/ Jalandhar, and in both the instances , the sender of the communication and recipient of the communications are different persons in two separate cause of action, and generation of a common DIN cannot be in accordance with the board circular - 19 I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 66 of 2019, and in such a case the assessment order and the demand notice will be held to be never to have been issued. 68. However, we are also in agreement with the decision of the Ld CIT ( A ) , that in absence of any incriminating materials found and SEIZED in course of search , from the premises of assessee, we are bound by the decision of the Hon’ble Supreme Court in the case of Abhisar Buildwell Pvt Ltd ( supra ) , and initiation of proceedings by issue of notice u/s 153A , cannot be undertaken simply on the basis of recorded statement and depositions of employees of the assessee, in absence of any incriminating materials brought on record and statements of employees, cannot be considered as incriminating materials, unless supported by corroborative evidences. 69. Moreover, in the instant case the assessment proceedings for the Asst year was already completed / unabated proceedings, and in absence of any incriminating materials found in course of search, relating to the year, the same cannot be disturbed. 70. Before we conclude, we note that both the judgements referred to by the revenue in the grounds of appeal, namely Saumya Construction (P) Ltd, (Gujrat HC) 2017 / 81 taxmann.com 292 and the judgment in the case of M/s Kesarwani Zarda Bhandar Sahson, Allahabad, has already been considered by the Hon’ble Apex Court, in this order, and the law has been laid down by the Hon’ble court. 71. Relevant portion of the observation of the Hon;ble Apex court is reproduced for ready reference : “13. For the reasons stated here in above, we are in complete agreement with the view taken by the I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 67 Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra) and the decisions of the other High Courts taking the view that no addition can be made in respect of the completed assessments in absence of any incriminating material. 14. In view of the above and for the reasons stated above, it is concluded as under: i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section 153A; ii) all pending assessments/reassessments shall stand abated; iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 68 assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. 72. As such the appeal of the revenue is dismissed being devoid of merits. 73. Assessment years : 2012-13 to 2019-20 : The factual and legal issue for all the above years , relating to estimation of income alleged to have arisen from unaccounted / undisclosed , manufacturing activity of cigarettes and cigarette filters , and consequent sales thereof , determined by the AO , solely on the basis of recorded depositions and statements of employees and other persons , without bringing any corroborative materials on record and without any incriminating materials seized , are identical for all the years , and our observation in the Asst year 2011-12, shall apply mutatis mutandis to all the above years under appeal , with necessary changes in arithmetical figures. 74. Asst year : 2012-13 and 2013-14 : ( Addition of Rs.10,00,000/- u/s 69C ) The addition of Rs. 10 lakh for each year, u/s 69C of the Act 61, made on account of wedding expenses of both the sons of the assessee, is again based on no I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 69 evidence , simply on presumption and assumption, without any reference to any material at all. Moreover, the explanation of the assessee, regarding wedding expenses being a very small affair, the necessary expenses being borne out of personal drawings, also cannot be disbelieved, without any contradictory evidence or materials on record. As such these additions are also deleted. Asst years : 2013-14, 2017-18 and 2018-19 ( Addition on account of Foreign Tour): 75. The addition of Rs. 2 lakhs, on account of foreign tour expenses , for each of the above three years, are also based on “ no documentary evidence ”, simply on estimation and presumption , and there is no incriminating materials on record. On the other hand the assessee has clarified and explained the same in course of normal assessment proceedings, which cannot be contradicted in absence of materials on record. As such these additions are also deleted. 76. Asst years : 2012-13 to Asst year 2019-20: ( Addition of unexplained receipts of Rs. 1,05,53,458/- for each year under appeal): This issue has already been discussed in details in earlier paragraphs and we are of the opinion that when receipts are already accounted for in regular books of accounts and considered and disclosed in regular returns, on year by year basis , the same cannot be a subject matter of additions in proceedings u/s 153A, in absence of any incriminating materials brounght on record . The additions are deleted. 77. Asst year: 2019-20 (Addition of Rs. 2 crores on account of Sundry Creditors): This issue regarding genuineness of sundry creditors are discussed in details vis a vis the assessee submission, in earlier paragraphs. Moreover, these are all matter of regular assessment proceedings, and part of disclosure and reflections in regular I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 70 returns for which documentary evidences has been filed by the assessee providing details establishing the identity, genuineness and credit worthiness of the parties. In absence of any incriminating materials gathered in course of search, this addition is deleted. 78. Asst Years: 2017-18, 2018-19 and 2019-20: (Addition of Rs.27,61,732/- in each of the years , on the basis of Department Valuer report ): This issue is discussed in details in earlier paragraphs vis a vis assessee submission. The entire addition on investments made in immovable property, has been made on the basis of valuers report (obtained post search). The investment made by the assessee in usual course are duly reflected in his regular books of accounts and in returns filed in normal course. In absence of any incriminating material or any documentary evidences gathered in course of search proceedings, to prove investment in building , no addition can be made simply on the basis of a valuers report, and as such this addition is deleted. 79. As such considering the entire factual aspect of the matter , we are of the opinion that in absence of any incriminating materials gathered in search proceedings , we are bound by the judgment of the Hon’ble Apex court in the case of Abhisar Buildwell Private Limited ( supra ) order dated 24/04/2023, followed by the judgment of “ King Build Con Pvt Ltd ” ( supra ) and S.S.Con Build Ltd ( supra), and the law is already settled on the issue that completed assessment cannot be disturbed , in absence of incriminating materials gathered in course of search. 80. As such respectfully following the law laid down by the Hon’ble Apex court, we uphold the order of the Ld. CIT (A), on all the issues, and the revenue appeal for all the years are dismissed being devoid of merits. 81. The cross objections of the assessee filed for the years Asst year 2011-12 to 2019-20 being CO No 2 / ASR / 2024 to CO No 10 / ASR / 2024 ( both I.T.A. No.110/Asr/2024 group and C. O. Nos. 2 to 10/Asr/2024 71 inclusive ), are in the nature of support to the orders of the Ld. CIT (A), and since we have already decided and discussed all the issues for the all the years under appeal, by dismissing the revenue appeal for all the years, being bound by the judgment of the Hon’ble Apex court, cited above, the cross objections becomes infructuous and dismissed. 82. In the result, all the appeals of the revenue are dismissed and all the Cross objections of the assessee are infructuous and are also dismissed. Order pronounced in the open court on 18.10.2024 Sd/- Sd/- (Dr. M. L. Meena) (UDAYAN DASGUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order "