Anshu Prithani, New Delhi V. DCIT, Central Circle-15, New Dedlhi

ITA 1153/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0739 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Keywords: Bogus Share capital; Search and seizure; Assessment record
• Section: 153A; 139(1); 153; 68; 6; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1153/DEL/2018 : ASSTT. YEAR: 2008-09 ANSHU PRITHANI, BRAHMAPUTRA HOUSE, A-7, MAHIPALUR, NEW DELHI-110037 VS DCIT, CENTRAL CIRCLE-17, NEW DELHI (APPELLANT ) (RESPONDENT) PAN NO. AKDPP5664L ASSESSEE BY : NONE REVENUE BY : SH. SATPAL GULATI, CIT DR DATE OF HEAR ING: 1 4 . 07 .20 21 DATE OF PRONOUNCEMENT: 14 .0 7 .20 2 1 ORDER PER AMIT SHUKLA, JUDICIAL MEMBER: THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E AGAINST THE ORDERS OF LD. CIT (A)-35, NEW DELHI DAT ED 17.11.2017. 2. THE ASSESSEE HAS FILED ITS ORIGINAL RETURN OF IN COME U/S 139(1) IN DECEMBER 2008 DECLARING TOTAL INCOME OF RS.1,29,244/-. 3. LATER ON, A SEARCH AND SEIZURE OPERATION WAS CAR RIED U/S 132A ON 28.09.2010 AND ACCORDINGLY, A NOTICE U/S 15 3A WAS ISSUED. AT THE TIME OF SEARCH THE ASSESSMENT FOR TH E ASSESSMENT YEAR 2008-09 HAS ATTAINED FINALITY AND ACCORDINGLY IN TERMS OF SECOND PROVISO TO SECTION 153A SUCH AN ASSESSMENT I S TO BE TREATED AS UNABATED AND WITHOUT ANY REFERENCE TO AN Y SEIZED ITA NO. 1153/DEL/2018 ANSHU PRITHANI 2 MATERIAL OR INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF SEARCH. IN THE IMPUGNED PROCEEDINGS, WE FIND THAT T HE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF VALUATI ON OF THE PROPERTY ARE NOT BASED ON ANY MATERIAL FOUND AND SE IZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION. THE FACT O F WHICH HAS NOT BEEN DISPUTED BY THE REVENUE. 4. BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESS EE AND THE MATTER IS BEING ADJUDICATED ON HEARING THE ARGU MENTS OF LD. DR AND BASED ON THE RECORD AVAILABLE BEFORE US. ON PERUSAL OF THE RECORD, WE FIND THAT IT IS AN ADMITTED FACT THA T NO ADDITION HAS BEEN MADE IN ANY OF THE YEARS WHICH WAS BASED O N INCRIMINATING MATERIAL OR EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH. 5. THUS, NO ADDITION CAN BE TWINED IN THE PRESENT P ROCEEDINGS U/S 153A. WE HAVE EXAMINED THE FINDINGS OF THE AO A ND LD. CIT(A) AND FIND THAT IT IS AN UNDISPUTABLE FACT TH AT THE ADDITION MADE BY THE AO IS NOT BASED ON SEIZED MATERIAL / DO CUMENTS FOUND DURING THE COURSE OF SEARCH. IN SUCH A SITUAT ION, ADDITION IS BEYOND THE SCOPE OF SECTION 153A AND WE RELY UPO N THE FOLLOWING JUDGMENTS FOR ADJUDICATING THE MATTER: PCIT VS. MEETA GUTGUTIA [2017] 82 TAXMANN.COM 287 (DELHI) CIT VS. KABUL CHAWLA [2016] 380 ITR 573 (DELHI) CIT VS. LANCY CONSTRUCTIONS [2016] 237 TAXMAN 728 (KARNATAKA). DCIT VS. KURELE PAPER MILLS PVT. LTD. IN ITA NO.3761/DEL/2011. PR.CIT VS. KURELE PAPER MILLS PVT. LTD. IN ITA NO.3 69/2015 (DEL HC). PR. CIT VS. KURELE PAPER MILLS PVT. LTD. [2016] 380 ITR 65 (SC) ITA NO. 1153/DEL/2018 ANSHU PRITHANI 3 CIT VS. SAUMYA CONSTRUCTION P. LTD. [2016] 387 ITR 529 (GUJ) 6. ON THE OTHER HAND, THE LD. DR THOUGH COULD NOT C ONTROVERT THE CONTENTION THAT THERE IS NO INCRIMINATING MATER IAL FOUND AT THE TIME OF SEARCH, BUT HE SUBMITTED THAT, ONCE NOT ICE U/S 153(3) IS ISSUED TO THE ASSESSEE THEN IT IS INCUMBE NT UPON THE ASSESSEE TO FILE THE RETURN OF INCOME AND AO HAS AL L THE POWERS TO ASSESS AND REASSESS THE TOTAL INCOME FOR THE YEA R AND SAME CANNOT BE RESTRICTED TO THE SEIZED MATERIAL. HE REL IED UPON THE JUDGMENT OF HON'BLE HIGH COURT IN THE CASE OF CIT V S. ANIL KUMAR BHATIA. 7. AFTER CONSIDERING THE AFORESAID SUBMISSIONS AND ON PERUSAL OF THE ORDERS BEFORE US, WE FIND THAT IT IS AN ADMI TTED FACT THAT THE TIME FOR COMPLETION OF ORIGINAL ASSESSMENTS HAS ENDED AND THE ASSESSMENT PROCEEDINGS ATTAINED FINALITY AT THE TIME OF SEARCH FOR THESE YEARS. IT IS ALSO UNDISPUTED THAT ADDITIONS MADE BY THE AO IS NOT BASED ON INCRIMINATING MATERI AL FOUND DURING THE COURSE OF SEARCH, ALBEIT IT IS BASED ON THE ASSESSMENT RECORD ONLY. 8. IN SUCH A SITUATION, ADDITIONS MADE ARE BEYOND T HE SCOPE OF 153A PROCEEDINGS. THIS PROPOSITION OF LAW HAS BE EN WELL SETTLED AND REITERATED BY THE HON'BLE DELHI HIGH CO URT IN THE CASE OF CIT VS. KABUL CHAWLA REPORTED IN [2016] 380 ITR 573 (DELHI) AND HAS BEEN REITERATED IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA REPORTED IN [2017] 152 DTR 153 (DELHI). 9. IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA), THE HON'BLE HIGH COURT, AFTER DISCUSSING VARIOUS JUDGMENTS AND ANALYZING SECTION 153A, HAVE LAID DOWN THE FOLLOWING LEGAL PR OPOSITION: ITA NO. 1153/DEL/2018 ANSHU PRITHANI 4 I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDAT ORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURN S FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS W ILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REA SSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN S EPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTH ER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UN DISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORM ATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE E VIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEI ZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UN DER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSM ENT OR ITA NO. 1153/DEL/2018 ANSHU PRITHANI 5 REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECT ION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PEND ING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETE D ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND TH E ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESS MENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUG HT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURI NG THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UND ISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEAR CH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' 10. THE HON'BLE HIGH COURT HAS ALSO TAKEN NOTE OF T HE JUDGMENT OF THEIR EARLIER JUDGMENT IN THE CASE OF C IT VS. ANIL KUMAR BHATIA REPORTED IN [2013] 352 ITR 493 (DEL) A ND OBSERVE THAT THIS WAS NOT THE ISSUE BEFORE THE COURT. AGAIN IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA'S (SUPRA), THEIR LORD SHIPS HAVE AGAIN REITERATED THE SAME PRINCIPLE AND HAVE ALSO C ONSIDERED THE CASE OF SMT. DAYAWANTI GUPTA REPORTED IN 390 IT R 496. 11. THE RELEVANT OBSERVATIONS MADE BY THEIR LORDSHI PS ARE AS UNDER: ITA NO. 1153/DEL/2018 ANSHU PRITHANI 6 '56. SECTION 153A OF THE ACT IS TITLED 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS CONNECTED TO SECTION 132 WHICH DEALS WITH 'SEARCH AND SEIZURE'. BOTH THESE PROVISI ONS, THEREFORE, HAVE TO BE READ TOGETHER. SECTION 153A I S INDEED AN EXTREMELY POTENT POWER WHICH ENABLES THE REVENUE TO REOPEN AT LEAST SIX YEARS OF ASSESSMENTS EARLIER TO THE YEAR OF SEARCH. IT IS NOT TO BE EXERCISED LIGHTLY. IT IS ONLY IF DURIN G THE COURSE OF SEARCH UNDER SECTION 132 INCRIMINATING MATERIAL JUS TIFYING THE RE-OPENING OF THE ASSESSMENTS FOR SIX PREVIOUS YEAR S IS FOUND THAT THE INVOCATION OF SECTION 153A QUA EACH OF THE AYS WOULD BE JUSTIFIED. 57. THE QUESTION WHETHER UNEARTHING OF INCRIMINATIN G MATERIAL RELATING TO ANY ONE OF THE AYS COULD JUSTIFY THE RE OPENING OF THE ASSESSMENT FOR ALL THE EARLIER AYS WAS CONSIDERED B OTH IN ANIL KUMAR BHATIA (SUPRA) AND CHETAN DAS LACHMAN DAS (SU PRA). INCIDENTALLY, BOTH THESE DECISIONS WERE DISCUSSED T HREADBARE IN THE DECISION OF THIS COURT IN KABUL CHAWLA {SUPRA). AS FAR AS ANIL KUMAR BHATIA (SUPRA) WAS CONCERNED, THE COURT IN PARAGRAPH 24 OF THAT DECISION NOTED THAT 'WE ARE NO T CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOU ND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE THEREFORE EXPRESS NO OPINION AS TO WHETHER SECTION I53A CAN BE INVOKED EVEN UNDER SUCH SITUATION'. THAT QUESTION WAS, THEREFORE, LEFT OPEN. 12. AS FAR AS CASE LAW CHETAN DAS LACHMAN DAS IS CO NCERNED, IN PARA 11OF THE DECISION IT WAS OBSERVED: ITA NO. 1153/DEL/2018 ANSHU PRITHANI 7 '11. SECTION 153A (1) (B) PROVIDES FOR THE ASSESSME NT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSM ENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO RE PEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOU LD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILA BLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDE NCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UN DER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY R ELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESS MENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEI ZED MATERIAL.' 13. IN KABUL CHAWLA (SUPRA), THE COURT DISCUSSED TH E DECISION IN FILALEX INDIA LTD. (SUPRA) AS WELL AS THE ABOVE TWO DECISIONS AND OBSERVED AS UNDER: '31. WHAT DISTINGUISHES THE DECISIONS BOTH IN CIT V . CHETAN DAS LACHMAN DAS (SUPRA), AND FILATEX INDIA LTD. V. CIT- IV (SUPRA) IN THEIR APPLICATION TO THE PRESENT CASE IS THAT IN BO TH THE SAID CASES THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH, WHEREAS IN THE PRESENT CASE THERE ADMITTEDLY WAS NO NE. SECONDLY, IT IS PLAIN FROM A CAREFUL READING OF THE SAID TWO DECISIONS THAT THEY DO NOT HOLD THAT ADDITIONS CAN BE VALIDLY MADE TO INCOME FORMING THE SUBJECT MATTER OF COMPLE TED ASSESSMENTS PRIOR TO THE SEARCH EVEN IF NO INCRIMIN ATING MATERIAL WHATSOEVER WAS UNEARTHED DURING THE SEARCH . 32. RECENTLY BY ITS ORDER DATED 6TH JULY 2015 IN ITA NO . 369 OF 2015 (PR. COMMISSIONER OF INCOME TAX V. KURELE PAPE R MILLS P. ITA NO. 1153/DEL/2018 ANSHU PRITHANI 8 LTD.), THIS COURT DECLINED TO FRAME A QUESTION OF L AW IN A CASE WHERE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BEING FOUND DURING THE SEARCH UNDER SECTION 132 OF THE ACT, THE REVENUE SOUGHT TO JUSTIFY INITIATION OF PROCEEDINGS UNDER S ECTION I53A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF TH E ACT ON BOGUS SHARE CAPITAL GAIN. THE ORDER OF THE CIT (A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH.' 14. IN KABUL CHAWLA (SUPRA), THE COURT REFERRED TO THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) V. ASSN. CIT [2013] 36 TAXMANN.COM 523/219 TAXMAN 223. THE SAID PART OF THE DECISION IN KABUL CHAWLA (SUPRA) IN PARAS 33 AN D 34 READS AS UNDER: 33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. A CIT (SUPRA) INVOLVED A CASE W HERE CERTAIN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS THAT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COURSE OF SEARCH. IT WAS HELD WHERE UNDISCLOSED INC OME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENC E OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERA TION WHILE COMPUTING THE TOTAL INCOME UNDER SECTION 153A OF TH E ACT. 15. THE COURT THEN EXPLAINED AS UNDER: '22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPAR ENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND A BATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS ITA NO. 1153/DEL/2018 ANSHU PRITHANI 9 UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSM ENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCO ME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL; AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE C OMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSM ENT OR REASSESSMENT CAN BE MADE.' 16. THUS, THE HON'BLE HIGH COURTS AFTER DETAIL ANAL YSIS CONCLUDED THAT, WHENCE THERE IS NO INCRIMINATING MA TERIAL QUA EACH OF THE ASSESSMENT YEAR ROPED IN UNDER SECTION 153A, THEN, NO ADDITION CAN BE MADE WHILE FRAMING THE ASSESSMEN T UNDER SECTION 153A. 17. THE AFORESAID PRINCIPLE AND RATIO ARE CLEARLY A PPLICABLE ON THE FACTS OF THE PRESENT CASE ALSO, AS ADMITTEDLY N O INCRIMINATING MATERIAL RELATING TO THESE ASSESSMENT YEARS OR AS A MATTER OF FACT FOR ANY OF THE ASSESSMENT YEARS WE RE FOUND DURING THE COURSE OF SEARCH. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/07/2021. SD/- SD/- (DR. B. R. R. KUMAR) (AMIT SHUKLA) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 14/07/2021 *SUBODH*