DCIT CENT. CIR. - 8(4), MUMBAI V. FLEMINGO DUTY FREE SHOP P.LTD, NAVI MUMBAI

ITA 129/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6532 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYAN RAJUDR
• Keywords: Unexplained cash credit; Bogus Share capital; Search and seizure; Reason to believe; Reassessment proceedings
• Section: 143(3); 80HHC; 153A; 115JB; 80IB; 143(1); 148; 132; 15

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , .., , ! BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.129/MUM/2018 ASSESSMENT YEARS: 2008-09 DCIT-CC-8(4), 6 TH FLOOR, ROOM NO.658, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 / VS. M/S FLEMINGO DUTYFREE SHOP PVT. LTD. D-73/1, TTC INDUSTRIAL AREA, MIDC ROAD, TURBHE, NAVI MUMBAI-400705 ( $ / REVENUE) ( %&' ( /ASSESSEE) P.A. NO.AAACF7909E $ / REVENUE BY SHRI B. SATYANARAYAN RAJU-DR %&' ( / ASSESSEE BY SHRI J.P. BAIRAGRA-AR ) $*+( , / DATE OF HEARING : 17/01/2019 +( , / DATE OF PRONOUNCEMENT 17/01/2019 / O R D E R PER JOGINDER SINGH (VICE PRESIDENT) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 30/10/2017 OF THE LD. FIRST APPELLATE AUTHORI TY, ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 2 MUMBAI, DELETING THE PENALTY UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, POINTED OUT THAT THE TRIBUNAL IN THE CASE OF ASSESS EE, VIDE ORDER DATED 27/09/2017 (ITA NO.4332/MUM/2014 AND 5050 & 5051/MUM/2014), DELETED THE ADDITION ON THE BASIS OF WHICH, PENALTY WAS IMPOSED BY THE LD. ASSE SSING OFFICER. THIS FACTUAL MATRIX WAS NOT CONTROVERTED B Y THE LD. DR, SHRI B. SATYANARAYAN RAJU. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION OF THE ORDER OF THE TRIBUNAL DATED 27/09/2017 FOR R EADY REFERENCE AND ANALYSIS:- 1. THESE THREE APPEALS ARE FILED BY DIFFERENT ASSES SEES OF THE SAME GROUP AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEARS 2008- 09 AND 2005- 06. 2. IN ALL THESE APPEALS THE ASSESSEE RAISED GROUND ON VALIDITY OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 153C R.W.S. 143(3) AND 153A R.W.S. 143(3) OF THE ACT AND ALSO GROUNDS ON MERITS. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE BEFORE US SUBMITS THAT IN ALL THESE THREE CASES THE ASSESS MENTS ARE NOT ABATED AND THERE IS NO INCRIMINATING MATERIAL FOUND BASED ON WHICH THE ADDITIONS WERE MADE AND IN VIEW OF THE DECISION S OF THE HON'BLE ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 3 JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. [374 ITR 645] AND IN THE CASE OF CIT V. GURINDER SINGH BAWA [386 ITR 483], HE SUBMITS THAT THE ASSESSMENTS MADE WITHOUT ANY INCRIMINATING MATERIALS ARE BAD IN LAW. THE LEARNED COUNSEL FOR THE ASSESSEE F URTHER SUBMITS THAT THE ADDITIONS WERE NOT MADE BASED ON ANY SEIZE D MATERIAL AND THERE IS NO ANY REFERENCE TO SEIZED MATERIAL BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDERS. THEREFORE,HE SUBMITS THA T IN THE ABSENCE OF ANY SEIZED MATERIAL AND SINCE THE ASSESSMENTS WE RE NOT ABATED THE ADDITIONS COULD NOT HAVE BEEN MADE BY THE ASSES SING OFFICER. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO REFERRING TO THE PAPER BOOK FILED, SUBMITS THAT IN GROUP CASES I.E. M/S. B ERMACO ENERGY SYSTEMS LTD. V. DCITIN ITA.NO. 2198, 2199 AND 2202/MUM/2013 DATED 31.05.2016 IT WAS HELD THAT IN THE ABSENCE OF INCRIMINATING MATERIAL THE ADDITIONS MADE WHILE COMPLETING THE AS SESSMENT U/S. 153A ARE NOT JUSTIFIED. 4. ON THE OTHER HAND, LD. DR SUBMITS THAT IN THE CO URSE OF SEARCH PROCEEDINGS LOOSE SHEETS AND BOOKS OF ACCOUN TS WERE SEIZED. THEREFORE, IT CANNOT BE SAID THAT THERE IS NO INCRIMINATING MATERIAL. HE STRONGLY PLACED RELIANCE ON THE DECIS IONS OF THE HON'BLE HIGH COURT OF MADRAS IN THE CASE OF CIT V. T. RANGROOPCHAND CHORDIA [69 TAXMANN.COM 202] AND DECISION OF THE HO N'BLE SUPREME COURT IN THE CASE OF CIT V. MUKUNDRAY K. SHAH IN APPEAL (CIVIL) NO. 1873 OF 2007 DATED 10.04.2007 AND SUBMITTED THAT TH E LOOSE SHEETS AND BOOKS OF ACCOUNTS FOUND IN THE COURSE OF SEARCH CONSTITUTES INCRIMINATING MATERIAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. UNDISPUTEDLY THE ASSESSMENTS IN ALL THESE THREE CASES FOR THE ASSESSMENT YEARS 2005-06 AND 20 08-09 HAVE NOT BEEN ABATED AS THE TIME LIMIT FOR ISSUING NOTIC E U/S. 143(2) WAS ALREADY EXPIRED MUCH BEFORE DATE OF SEARCH ON 31.10 .2009. WE HAVE PERUSED THE ASSESSMENT ORDERS IN ALL THESE THR EE CASES AND FIND THAT IN THE CASE OF M/S. FLAMINGO (DFS) PRIVAT E LIMITED THE ADDITION OF .15,00,000/- WAS MADE BY DISALLOWING PROFESSIONAL F EES PAID BY THE ASSESSEE BASED ON THE VERIFICATION OF T HE DETAILS FILED BY THE ASSESSEE. IN THE CASE OF M/S. FLEMINGO DUTY FR EE SHOP PVT LTD THE ADDITION OF .1,00,00,000/- WAS MADE BY DISALLOWING THE PROFESSIONAL FEES ON VERIFICATION OF THE DETAILS FA ILED BY THE ASSESSEE AND IN THE CASE OF M/S. DARLING PROPERTIES P. LTD A DDITION OF .13,75,000/- WAS MADE TOWARDS UNEXPLAINED CREDIT ON ACCOUNT OF SHARE APPLICATION MONEY AND IT IS THE FINDING OF TH E ASSESSING OFFICER THAT IN THE COURSE OF SEARCH AND POST SEARCH ENQUIR IES IT HAS BEEN ESTABLISHED THAT THE ASSESSEE HAS RECEIVED HUGE SHA RE APPLICATION MONEY WITH HEAVY PREMIUM FROM VARIOUS COMPANIES. 6. ON A PERUSAL OF THE ASSESSMENT ORDERS WE DID NOT FIND ANY SPECIFIC DOCUMENT WHICH IS SEIZED IN THE COURSE OF SEARCH IS REFERRED ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 4 TO BY THE ASSESSING OFFICER WHICH WAS SEIZED AND BA SED ON WHICH THE ADDITION WAS MADE. THE ASSESSING OFFICER FAILED TO BRING ON RECORD ANY SEIZED DOCUMENT ON WHICH HE IS RELYING O N FOR MAKING THE ADDITIONS IN ALL THESE THREE ASSESSMENT ORDERS. FU RTHER WE ALSO FIND THAT IDENTICAL ISSUE HAS COME UP BEFORE THE GROUP C OMPANY OF THE ASSESSEE IN THE CASE OF THE M/S. BERMACO ENERGY SYS TEMS LTD. V. DCIT (SUPRA)WHERE THE JOINT WARRANT ISSUED FOR SEAR CH AND THE COORDINATE BENCH FOLLOWING THE DECISIONS OF THE HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (SUPRA) AND ALSO OTHER DECISIONS OF COORDINATE BENCHES DELETED THE ADDITIO N IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AND ALSO SINCE THE ASSESSMENTS WERE NOT ABATED OBSERVING AS UNDER:- 20. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULL Y GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND ALSO THE PAPER BOOK FILED BY THE LD. AR, PARTICULARLY, THE PAGES TO WHICH OUR ATTENTION WAS INVITED DURING THE COURSE OF HEARING. WE HAD ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEME NTS REFERRED BY LD.AO AND CIT(A) IN THEIR RESPECTIVE ORDERS AS WELL AS CI TED BY LD. AR AND DR DURING THE COURSE OF HEARING BEFORE US IN THE CONTEXT OF F ACTUAL MATRIX OF THE INSTANT CASE. FROM THE RECORD WE FOUND THAT SEARCH WAS CARR IED ON 31-10-2009 AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE. THEREAFTER ASSESSMENT WAS FRAMED U/S.153A R.W.S.143(3) OF I.T.ACT. IN RESPECT OF ASSESSMENT YEAR 2004- 05, THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 31-10-2004, WHICH WAS PROCESSED U/S.143(1) BUT NO SCRUTINY ASSESSMENT NOT ICE U/S.143(2) WAS ISSUED TILL 31-10-2005. AS PER THE RELEVANT PROVISIONS OF LAW PREVAILING DURING THE YEAR UNDER CONSIDERATION NOTICE U/S.143(2) IS REQUI RED TO BE ISSUED BEFORE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WH ICH RETURN WAS FURNISHED. ACCORDINGLY, THE AO SHOULD HAVE ISSUED NOTICE U/S.1 43(2) BY 31-10-2005. HOWEVER, NO SUCH NOTICE WAS ISSUED, THUS, THE ASSES SMENT IS TREATED TO BE COMPLETED SINCE ON THE DATE OF SEARCH I.E. 31-10-20 09, LIMIT FOR ISSUING NOTICE U/S.143(2) WAS ALREADY EXPIRED. IN RESPECT OF ASSES SMENT YEAR 2005-06 ASSESSEE HAS FILED ITS RETURN OF INCOME ON 29-10-20 05, WHICH WAS ALSO PROCESSED U/S.143(1). FOR TAKING INTO SCRUTINY NOTI CE U/S.143(2) WAS REQUIRED TO BE ISSUED BEFORE 31-10-2006 I.E. TIME LIMIT FOR ISSUING NOTICE DURING THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. HOWEV ER, NO NOTICE U/S.143(2) WAS ISSUED. EVEN NO NOTICE U/S.148 WAS ISSUED FOR R EOPENING OF THE ASSESSMENT. THUS, THE ASSESSMENT FOR BOTH THE ASSES SMENT YEARS I.E. A.Y.2004-05 & 2005-06, HAD BECOME FINAL AND WAS NOT PENDING, THEREFORE, THERE WAS NO QUESTION OF ABATEMENT. WE HAD CAREFULL Y GONE THROUGH THE ORDER OF AO AS WELL AS CIT(A). WE HAD ALSO GONE THR OUGH THE STATEMENT RECORDED U/S.132(4) AND DID NOT FIND ANY MENTION OF INCRIMINATING MATERIAL WITH REGARD TO BOGUS SHARE CAPITAL OR UNSECURED LOA NS HAVING BEEN RECEIVED BY ASSESSEE IN THESE YEARS. WHATEVER SHARE CAPITAL AND UNSECURED LOANS WERE RECEIVED BY THE ASSESSEE, WAS DULY RECORDED IN THE REGULAR BOOKS OF ACCOUNT ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 5 AND SHOWN IN THE AUDITED ACCOUNTS FILED ALONG WITH THE RETURN OF INCOME FOR THE RESPECTIVE YEARS. APPLYING THE PROPOSITION OF L AW LAID DOWN BY ITAT SPECIAL BENCH IN THE CASE OF ALL CARGO LOGISTICS LT D., 137 ITD 287, WHICH WAS CONFIRMED BY HON'BLE BOMBAY HIGH COURT VIDE ORDER D ATED 21-4- 2015, TO THE FACTS OF THE INSTANT CASE, WE CAN SAFELY REACH TO T HE CONCLUSION THAT IN RESPECT OF THE YEARS FOR WHICH ASSESSMENT WAS NOT PENDING O N THE DATE OF SEARCH AND WHEN NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, THE ADDITION SO MADE IN THE A.Y.2004-05 & 2005-06 WERE NOT JUSTIFIED. HON'BLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHO USING CORPORATION (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78 HELD AS UNDER: WHETHER IN A CASE WHERE PURSUANT TO ISSUE OF NOTIC E UNDER SECTION 153A ASSESSMENTS ARE ABATED, ASSESSING OFFICER RETA INS ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM UNDER SECTION 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF SIX ASSESSMEN T YEARS SEPARATELY - HELD, YES - WHETHER NO ADDITION CAN BE MADE IN RESPECT OF UNABATED ASSESSMENTS WHICH HAVE BECOME FINAL IF NO INCRIMINATING MATERIA L IS FOUND DURING SEARCH. HELD, YES. 21. IN THE INSTANT CASE, THE CIT(A) HAS DISMISSED T HE LEGAL GROUND RAISED BY THE ASSESSEE BY RELYING ON THE DECISION OF HON'BLE DELH I HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA. THE ITAT DELHI BENCH IN THE CASE OF JAKSON ENTERPRISES VS. ACIT DATED 27-05-2015 BEING ITA NO. 383/DEL/2013, H AS DEALT WITH THE DECISION OF DELHI HC IN THE CASE OF CIT VS. ANIL KU MAR BHATIA WHICH WAS RELIED BY CIT(A) AND IT WAS HELD THAT IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL NO ADDITION U/S.153A CAN BE MADE. 22. THE JURISDICTIONAL HIGH COURT IN THE CASE OF CO NTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) 374 ITR 645, VIDE ORDER D ATED 21-4-2015 HAVE CONSIDERED THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL CARGO AND ALSO THE DECISION OF DELHI HIGH COURT IN THE CASE OF ANIL BH ATIA (SUPRA), ON WHICH CIT(A) HAS RELIED FOR DISMISSING LEGAL GROUND RAISED BY AS SESSEE. AFTER ELABORATE DISCUSSION THE HON'BLE HIGH COURT HELD, HEAD NOTE, READS AS UNDER :- A BARE PERUSAL OF SECTION 153A WOULD INDICATE AS TO HOW A NON- OBSTANTE CLAUSE HAS BEEN INSERTED AND WITH A DEFINE D INTENT. WHERE SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF A CCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDERSECT ION 132A AFTER 31-5- 2003, THAT THE ASSESSING OFFICER IS IN A POSI TION TO AND MANDATED TO ISSUE NOTICE WITHIN THE MEANING OF SUB- SECTION (1) OF SECTION 153A. THAT IS BECAUSE, CHAPTER XIII WITHIN WHICH THE POWERS OF SEARCH AND SEIZURE AND POWERS TO REQUISITION BOO KS OF ACCOUNT ARE SPELT OUT ENABLE THE REVENUE TO TAKE CARE OF CASES WHERE IT EFFECTS A SEARCH AND SEIZURE. THAT SEARCH AND SEIZURE IS EFFE CTED AND AFTER THE SAME IS EFFECTED, BOOKS OF ACCOUNT, OTHER DOCUMENTS , MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING IS FOU ND AS A RESULT THEREOF ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 6 THAT NOTWITHSTANDING ANYTHING AND WITHIN THE MEANIN G OF THE ABOVE PROVISIONS HAVING BEEN CONCLUDED, IT IS OPEN FOR TH E REVENUE TO MAKE AN ASSESSMENT. IT IS ALSO OPEN TO THE REVENUE TO MA KE A REASSESSMENT IN CASES WHERE IT EXERCISES THE POWERS TO REQUISITI ON BOOKS OF ACCOUNT ETC. THIS IS BECAUSE IT IS OF THE VIEW THAT THE BOO KS OF ACCOUNT ARE REQUIRED TO BE SUMMONED OR TAKEN INTO CUSTODY. IT, THEREFORE, ISSUES A SUMMONS IN THAT REGARD. IT MAY ALSO REQUISITION THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS FOR THAT MIGHT BE USEFUL AND OR ANY ASSETS REPRESENTING WITHHOLDING OR PART INCOME OR PROPERTY WHICH HAS NOT BEEN OR WOULD NOT HAVE BEEN DISCLOSED FOR THE PURPO SE OF THE INDIAN INCOME-TAX ACT, 1922 OR THE INCOME-TAX ACT OF 1961 BY ANY PERSON FROM WHOSE POSSESSION OR CONTROL THEY HAVE BEEN TAK EN INTO CUSTODY. THIS IS WHEN THE AUTHORITIES HAVE REASON TO BELIEVE THAT SUCH POWERS NEED TO BE EXERCISED. THEREFORE, THE FETTERS AND WH ICH ARE TO BE FOUND IN OTHER PROVISIONS ARE REMOVED AND A NOTICE OF ASS ESSMENT IN SUCH CASES IS THEN ISSUED. THAT IS MANDATED BY SUB-SECTI ON (1) OF SECTION 153A. IT IS NOT ONLY THE ISSUANCE OF THE NOTICE BUT ASSESSMENT OR REASSESSMENT OF TOTAL INCOME OF SIX ASSESSMENT YEAR S IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION HAS TO BE M ADE. $ E P V 153A L G Q K G P P V W L Y G X P W Q PLD. ASSESSEE'S RELIANCE UPON THE DIVISION BENCH JUDGME NT OF THIS COURT RENDERED IN CIT V. MURLI AGRO PRODUCTS LTD. [2014] 49 TAXMANN.COM 172 IN THAT CONTEXT IS, THEREFORE, WELL PLACED. THE DIVISION BENCH OUTLINED THE AMBIT AND SCOPE OF THE POWERS CONFERRED BY SECTION 153A AND OBSERVED THAT ON A PL AIN READING OF SECTION 153A, IT BECOMES CLEAR THAT ON INITIATIO N OF THE PROCEEDINGS UNDER SECTION 153A, IT IS ONLY THE ASSESSMENT/REASS ESSMENT PROCEEDINGS THAT ARE PENDING ON THE DATE OF CONDUCT ING SEARCH UNDER SECTION 132 OR MAKING REQUISITION UNDER SECTI ON 132A STAND ABATED AND NOT THE ASSESSMENTS/REASSESSMENTS ALREAD Y FINALISED FOR THOSE ASSESSMENT YEARS COVERED UNDER SECTION 153A. BY A CIRCULAR NO. 8 OF 2003, DATED 18-9-2003 (SEE 263 ITR(ST) 61 AT 1 07) THE CBDT HAS CLARIFIED THAT ON INITIATION OF PROCEEDINGS UNDER S ECTION 153A, THE PROCEEDINGS PENDING IN APPEAL, REVISION OR RECTIFIC ATION PROCEEDINGS AGAINST FINALISED ASSESSMENT/REASSESSMENT SHALL NOT ABATE. IT IS ONLY ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 7 BECAUSE, THE FINALISED ASSESSMENTS/REASSESSMENTS DO NOT ABATE, THE APPEAL REVISION OR RECTIFICATION PENDING AGAINST FI NALISED ASSESSMENT/REASSESSMENTS WOULD NOT ABATE. THEREFORE , THE ARGUMENT OF THE REVENUE, THAT ON INITIATION OF PROC EEDINGS UNDER SECTION 153A, THE ASSESSMENTS/REASSESSMENTS F INALISED FOR THE ASSESSMENT YEARS COVERED UNDER SECTION 153A STAND A BATED CANNOT BE ACCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT M ADE UNDER SECTION 153A (1) WHAT STANDS REVIVED IS THE P ENDING ASSESSMENT/REASSESSMENT PROCEEDINGS WHICH STOOD ABA TED AS PER SECTION 153A(1). ! H I A G!FF RWP G P ORR U R O 153AR W O 143(3) OU O V URB /R ORR W F U R GR OUR OF PRO G U R O 153AB R F GR U RF /R WR O RRO F U RUR G OUROF153APRO G.IFR O GO R OROUGG RW U RUR G R ORUR G153APRO GA G!FF R W P G ORR U R O 153AR W O 143(3) OURB ORR $ E Y C LC LC Y B CW W . R W LY L L LY LY C C 263.H C,D B CW Q C Y C 153A WC .W D B C W C 153AC K XC CW C - C (1) L CL D B C W Q X CC . $ LW CW , Y,L YLL W X Y -C (1) C 153AW .IYW C C 132 K Q C 132A,C Y,Y.I LY C W L W WC C C K Q .ACC ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 8 WC LWYD B C WWCLL C 153A, ,C C CL YD B CW L C . EVEN OTHERWISE, COURT IS IN AGREEMENT WITH THE DIV ISION BENCH WHEN IT OBSERVES AS ABOVE WITH REGARD TO THE AMBIT AND S COPE OF THE POWERS CONFERRED UNDER SECTION 153A . EVEN IF THE E XERCISE OF POWER UNDER SECTION 153A IS PERMISSIBLE STILL THE PROVISI ON CANNOT BE READ IN THE MANNER SUGGESTED BY THE REVENUE. NOT ONLY THE F INALISED ASSESSMENT CANNOT BE TOUCHED BY RESORTING TO THOSE PROVISIONS, BUT EVEN WHILE EXERCISING THE POWER CAN BE EXERCISED WH ERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OT HER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFT ER 31-3- 2003. THERE IS A MANDATE TO ISSUE NOTICES UNDERSECTION 15 3(1)(A) AND ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEAR S IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. TH US, THE CRUCIAL WORDS 'SEARCH' AND 'REQUISITION' APPEAR IN THE SUBS TANTIVE PROVISION AND THE PROVISOS. THAT WOULD THROW LIGHT ON THE ISS UE OF APPLICABILITY OF THE PROVISION. IT BEING ENACTED TO A SEARCH OR R EQUISITION THAT ITS CONSTRUCTION WOULD HAVE TO BE ACCORDINGLY. THAT IS THE CONCLUSION REACHED BY THE DIVISION BENCH IN MURLI AGRO (SUPRA) . THESE ARE THE CONCLUSIONS WHICH CAN BE REACHED AND UPON READING O F THE LEGAL PROVISIONS IN QUESTION. THEREFORE, THE SPECIAL BENCH'S UNDERSTANDING OF TH E LEGAL PROVISION IS NOT PERVERSE NOR DOES IT SUFFER FROM ANY ERROR O F LAW APPARENT ON THE FACE OF THE RECORD. ) E C C FSPCB CPCFCY PP CIT. A K B[2012] 24 X .C 98/211 TX 453 (D).H G F CC.UP G F FDHGC Y P G HGC FDCC C FF K Y D B C. 23.ITATDB C C FJK E P ITAN .383/D/2013 27-5-2015 :- 9.H GG G F F L CIT(APP)JCC F ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 9 FY F F C. 153AC.143(3) FI C -XAC1 961 C F C G F GC F C C FP CY F FC F F G C. 153A C Q YQ C C C C.132 FAC. 10. H G G G C C Y AR C GC FSPCB C FITAT C FAL CG G L GCL..CIT(P)F PP C F . 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LTD. 11 A.O Y P P C G C Y 'K G F C C F Y G C'.T XP ' GC'Q G FC PC F C P -P G A G OFFC Y C CP C P F C G F C ' GC'.I F' C ' PC F YF C YC P FC F CY F C GC FC.T C Y Q P P A GOFF C P C F PC F X Y.H C P FC F C FF PC FYF C P G --YF C -P G.I PC Y F C G Y C P F C C Y C G Y C F F C G F G C F C. IF C G F PC FC C P C P C G / 153A C P Y C G G Y C .IF C G F PC F 11 C Y F C P G ' C ' YC G G Y C P C G F C G F GC FC.I C F P G FCC FC P C.153A(1) C C PF F CY FC Y C G . I FC P CF JG FH 'DHGC A K B (P) JXP PC C C FA CG G L GCL.(P).T JG YL.DR C FMGV (P) K F K GF P C F ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 12 YF C P G FC C P FC CF .' 13.WF C FH JC D HGC C FA K.B(P) PP C F C F C G F G C FC /153A FAC C F .TC P Y .CITDR C FC H GD P C P Y .DCIT(P) FH K KHGC )XI P. L..CIT(P) FH DHGC G G FC PPC P C.I C F)X I P.12L.(P)Q PPCY F P /153A'T FC G-C P F KP F- Y F GC FC P /153A FAC JC G C P F P C G C ?' T Q ' FC CC C FC T P GC FAO Y G FF F K PC Y FC(III) FEXP 1 C 115JB F AC?'T FC FC P .2 F C AO P C G/153 A FAC Y G P C G F C FCCC C 18.1.2006 Q . I PGP F C PF PG FT C G C G F S JY AG GM (MK G) C P. TH HG C P PGP ' C FPP - FP C G/153A C G F GC.TC Y PP - CJC FQ .(II) (III)/ JF /153 C G F C C G / 115JB FAC.'TH HGC JC C F F G / 153A F AC C C G CF GC F C.T CF FC FCF H HGC Y GP C G F ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 13 C FC YAO P C G /153A FAC /115JB YAO C F C G C C G . T Q Y C G F C C G /153A FACC J CY H HGC F G.I YH HGC C P CC.153A FACPPC.SC 153A(1)P ; P G C F X Y Y PC G Y P Y C CC C Q . 14.I P .3 FJG H D HGC C GCC CCIT. C D(2012) 254CTR(D)292 CIT.A K.B(2012 )2010-11TX 453(D)CY.AR FPP C F GG Y H C .TF P .4 FJG H HG C :'TFQ C YPP F AOCIT(A) F T .T PP C C GGC Y G.WX C.153A FAC F /C '. 15.W PFC FC C F)XI L. Q C C Y G C F C C G C G F / 115JB F AC P Y C G .TQ F H HGC T P GC P F KP F- Y F GC FC /153A F AC JC G C P FP C G C .TH HGC F C G P CQ G P /115JB FA C.T G GFCCC C F)XI L.(P) PF . 16.S FC FH K KH GC C FC H GD P C P Y(P) P Y .CITDRC C F H HGC ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 14 G GY F P /263 FACY .CITPYPYT GC H HGC P C C C FA K B(P) C FSPC B C FT C FACG G L GCL. (P).I YH HGC C PC F PPC FC.153A C/132 FP C G /153A P Y C C G GC C.TH RJ HGC C FJS (P) P F Y K FCC C P C C F G F C F CC K FCC C K C G - G C P FC.153A FAC.E Y C C C P PY F F C C F C K C . T Q F - C C X FC 132 13 2A FAC C C G C GF CC FC C Q Q F - F C C C Q Y C X F C P CQ . 17.I C FSSPA L..DCIT(P )Y F F /153CC G F AOF Y Y JY C G K FCC C Z C FC G P P C C K FCC C Y AO GJC C P .O C AO GJC C P P C G F K G F C CC CP FC. 153A.TP C/1 32 FAC C G G F G CC P FPG P F C P . 18.WF Y H DHG C H RJ HG C C CC PP C F C F C G F G C F C C / 153A F AC G ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 15 YF FC .TH K KHGC C FC H G D P C P Y(P) P XP FF PP P F F C FH JC DHGC C H K K HG C H RJ HGC XPFF F F .W C F C G F GC F C C C G YF C KP C. 19.I C F F FCY R P C F C G F G C F C G F Y C JFY Y Y A G OFFC G F C F C.139 F AC P G F C F G C C Y AR C F C. 153A C. 14 3(3) F I C -X AC 1961 F Y C CC GY .TG .2 6 . 20.I F F GY F G .7 8Q GY F C FC / 80IB CP(G .7) C /14A (G .8)C FC C C Y.T G Q YJC .T G P FFC. 24.S K YITATJ P C FVD 40 X .C 134 Y P CC F Y C G C F G C GF Y C Y F C C F Y C /.153A. 25.TH 'JC HGC C FMAG P C L.49X .C 172 :- H: ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 16 T JC F GC 153A153B 1 53CY) CAC 2003YC GX GP G CC C CPXIVB FAC M XP GP ) CB2003 X G P G C C F P Q PC C C ' C C ' PC C C F GC F C C. C P G G . T C FFCY GY) C AC 2003 C C CPXIVBP CC 153 A153B 153C AC. WC 153AC P GG P F / C AC C C C C 132 Q C 132A F31-5-2003 C F YP A GOFFC C CP Q G F F C P PC F X Y Y PC G Y P Y CC C C Q F C F Y. T C P C 153AP F F / P C GCP G F C/Q .SC 153A(2)P C 153(A)(1) . T P G FC 153AC C F P C G C 153A Y / P C GP G F C C G C C 132 K G Q C 132A / Y F F YC C 153A. BYCCN .818-9-2003CBDTC F F P C G C 153A P C G P G PP CFC P C G G F / . I YC F / PP ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 17 CFC P G G F / . TF G F F P C G C 153A / F F YC C 153A C CCP.S Y F C 153A(1) P G / P C G C PC 153A(1). [P 10] I C A G OFFC P G P C 153AC 143(3)C / C F Y G C F P C G C 153A F G F / C Y FC GC F153AP C G. I P C G C GG Y G C G 153A P C GC F C 80HHC .I CCA GOFFC P G C 153AC 143(3)C G G C 80HHCC C Q YC C KJC C 263 FAC. 26. T ITAT M C C F JY P . J 46 X .C 457 :- HN : S FQ P C G F C 143(1)-- C 143( 3)C C Y F F P C G F C 143(1) C C 143(3)Y F C C 143(2)J C C P F12 F F C F PP C() FC 143(2)[X G F Y]. O C P PCP C() F -C (2) FC 143 XP P A GOFFC C C 143(3) F Y C 139 CCP C C - P C 147JC FF F G FC 147 ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 18 P PC C 149. S C CC CF P C C 143(1) C 143(3)F PC P F C C 143(3) G Y P CCPYA GOFFC YFF C C P C C 143(3). A Y C P C C 143(1) F Y XPY F P F F F C F. H C C P P G FC 14-8-2008.A Y C G F F P F GC C 132. O C C 143(3) YG G FGY F C C 143(2) - P G C 147 Y G G FP C F.H C C F P C C 143(1) A GOFFC C CP P A GOFFC - C C 153A Y C G F G CC . T XG F C C K FCC F G CC F C G G F C F.T G Y F XP F K FCC F C G .SC F C FC C F C C J P P P PC . T X FG F Y GP Y FSP C C PC C C C G FC F FC FC C C PC.HC FF FC Y K FFF C C C C.T P P F Y SP C .TC FC CC C ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 19 FC CC P P F Y SP C C P FC CC C FC JC F .H P P FPY F P Y. I F CC GY YA GOFFC C 153A Y C G GF GCC CC C C Q / G CCQF Y . 27.S K YITATJ PB C C FIOC B D P50X .C 396P T C F SRJPYS(P)L.20X .C 101M T C FNKKAGITAN .879/M /2011 22-1-2014M T C FSPGM.S GITA N .8027/M /2010 30-9-2015 JP T C F M/ J J & M FCP.L.ITAN .686/JP/2014 14-12-2015ITAT D B C C F M/ RK M Y M P. L. ITA N .2821/D/2011 10-16-2014. 28.O PP YF GC :- )ITATM B C C FSG S GB. DCIT-28X .C 328 )ITATM B C C FA P.K .DCIT-N . 2855 2860/M /200823-02-2010 )ITATJ PB C C FVD .DCIT-157TTJ 189 )HGC FB Y C FCIT.M AG P C L.[2014]49TX .C 172ITAN .21982199&220 2/13 )ITATM B C C FACIT.JY P. J[2014]65 SOT118 )J PITAT C FAYB&D P.DCIT [2014]166TTJ25 )ITATP B C C FACIT.SRJPY SP.L.[2011] 137TTJ627 )M T C FNKKAG .ACIT22- 01-2014 GITAN .879JMJ2011[2014-TIOL-75-IT AT-MUM] ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 20 X)M T C FPGM.S G .ACIT ITA N .8027/M /201030-09-2015 X)M T C FZ P.S G .DCIT ITA N .8026/M /201019-12-2014 X)JPT C FJJ &M FC(P) L..ACIT ITAN .686/JP/2014-[2016]175TT J344 29.TITATDB C C FM/S CY P JCP.L.2016- TIOL-643-ITAT-D :- 13.WCFYC G F P PCF .I C FK C(P)H 'JC HGC C C FH 'DHGC C C F HGC T Z GP PGP37 C C FC PGP38CP C :- 'S Y FGP . 37.O C PC FSC 153A(1) FAC P G F XP F C G P G :- .O CCKPC SC 132 F AC C SC 153A(1) Y P CQ G F F XAY YPC GP Y AY CCKPC. .A P G F C.T C F CAY C PYAOFXC. .TAOXC P PC FXYP AY C C K PC. TAO P C FF XY P F C FXY .I Y PC FC FXAY' C C C C G X' . ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 21 .A GSC 153A Y CY F CF C FC P -C F AOCC C F 'C Y Y C X Z .O Y SC Y FZ .' .I C F Y C G C P C C . T SC 153A P C G(.. P G FC) C P P C G. . I F P G C C JC K G SC 153A G .O Y PYF CAY FF G FC Y X G G C FAO. .C P C F YAO K G SC 153A Y F C G G C FC Q F C C C P PYC C F CC P C YC K C F G . C C 38.TP PPC C AY2002-032005-0 6 2006-07.O FC Y C P.S C C G GC C C Y.' 14. I C () L P 'O Y SC Y F Z '. I C () Y G 'I C F Y C G C P C C '.I C()'C P C FYAO K G SC ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 22 153A Y F C G GC FC'. H 'DHGC C FRRJSC L.2015-TIOL- 2539-HC-DEL-IT :- 'I PC FC C AO JC P C K .H PC FC C AO JC P / C C Y AO P C Y C C P Y F Y C Y C Y.TC C FI C TX(C )-III .KC:ITA707/2014C 28A G 2015 C P C Y FYAO F Y C G G C F C Q F C .I C F Y C G AO YJC F C C .' RPCFYF GP P FC JCP C F Y F YAOPC CP C . T C YAO CC FP F C C G F CC FC P Y CF P PP . ACC GY C Y GP PC FXP C JF/.153A C G PC P FCF GC FC.S C YCG F F G G F . 7. IN THE CASE OF CIT V. GURINDER SINGH BAWA (SUPRA) HON'BLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: - O FPPF T C G Y F /.153A F AC.T CC F FC PC FX Y P G .T PG C CPF FP -Y PC G CP C F SPC B C F T A CG G L GCL. JY62012[2012]18I TR(T)106(M )[SB]. T T PG F C G ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 23 F G C F C. T P C G C 153A FAC JC F . F G . T PG F-C F FP - . 6.M.K G C F R YFY C F SPC B C F T A CG G L GCL..DPYCIT[2012]18JTR(T)1 06(M )[SB] JC FC GF C P FG P F PPP FCIT.C W GC P (N S)L.[2015]3741TR645(B )P G FSPC B C FT ACG G L GC L.C Q Y C F YF PC Y.. P G C JC X P C G C 153A FACT FC P PYF C G G C FC GP C G C 153A FACCC Y / C G G P C G. 7. I F F JC F C CG R YC F C C W GC P (NS)L.(P). I PPF R G CG PG FT G. P C G .SC 153A F AC JC .T F FC P G Y C G CF . TG C FR YG F G PG F C G GGF .H C PYR C FC C W GC P (NS)L. (P) PPY P FC P G F FP C G C 153A FAC.T CC C P P Q C C C. 8. IN THE CASE OF M/S. FLAMINGO (DFS) PRIVATE LIMIT ED ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 06. 10.2008 DECLARING ITS TOTAL INCOME AT .1,60,89,620/-. WITH THE RETURN OF INCOME, THE ASSESSEE HAD ENCLOSED ITS AUDITED BALANCE SHEET AND PROFIT & LOSS ACCOUNT ALONG WITH AUDIT REPORTS, COMPUTATION OF TO TAL INCOME AND ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 24 OTHER DETAILS. COPY OF THE RETURN OF INCOME, COMPU TATION OF TOTAL INCOME AND AUDITED FINANCIAL STATEMENTS OF THE ASSESSEE CO MPANY WERE PLACED AT PAGE NOS.1-28 OF THE PAPER BOOK. THE RET URN WAS PROCESSED U/S. 143(1) BUT NO NOTICE U/S. 143(2) WAS ISSUED FO R SCRUTINY ASSESSMENT. FOR ASSESSMENT YEAR 2008-09, NOTICE U/ S. 143(2) OF THE ACT WAS TO BE ISSUED BEFORE EXPIRY OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. A CCORDINGLY, IN THIS CASE ASSESSING OFFICER SHOULD HAVE ISSUED NOTICE BY 30.0 9.2009, BUT NO SUCH NOTICE WAS ISSUED. THEREBY THE ASSESSMENT WAS TREATED TO BE COMPLETED SINCE ON THE DATE OF SEARCH I.E. ON 31.10 .2009, TIME LIMIT FOR ISSUING NOTICE U/S. 143(2) WAS ALREADY EXPIRED MUCH BEFORE DATE OF SEARCH. FURTHER, IN THIS CASE NO NOTICE U/S. 148 WA S ISSUED FOR REOPENING OF THE ASSESSMENT. 9. IN THECASE OF M/S. FLEMINGO DUTY FREE SHOP PVT L TD THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 28.09.2008 DECLARING ITS TOTAL INCOME AT .28,57,69,800/-. WITH THE RETURN OF INCOME, THE ASSESSEE HAD ENCLOSED ITS AUDITED BALAN CE SHEET AND PROFIT & LOSS ACCOUNT ALONG WITH AUDIT REPORTS, COM PUTATION OF TOTAL INCOME AND OTHER DETAILS. COPY OF THE RETURN OF IN COME, COMPUTATION OF TOTAL INCOME AND AUDITED FINANCIAL STATEMENTS OF TH E ASSESSEE COMPANY WERE PLACED AT PAGE NOS.1-29 OF THE PAPER B OOK. THE RETURN WAS PROCESSED U/S. 143(1) BUT NO NOTICE U/S. 143(2) WAS ISSUED FOR SCRUTINY ASSESSMENT. FOR ASSESSMENT YEAR 2008-09, NOTICE U/S. 143(2) OF THE ACT WAS TO BE ISSUED BEFORE EXPIRY OF 6 MONT HS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED . ACCORDINGLY, IN THIS CASE ASSESSING OFFICER SHOULD HAVE ISSUED NOTICE BY 30.09.2009, BUT NO SUCH NOTICE WAS ISSUED. THEREBY THE ASSESSMENT WAS TREATED TO BE COMPLETED SINCE ON THE DATE OF SEARCH I.E. ON 31.10 .2009, TIME LIMIT FOR ISSUING NOTICE U/S. 143(2) WAS ALREADY EXPIRED MUCH BEFORE DATE OF SEARCH. FURTHER, IN THIS CASE NO NOTICE U/S. 148 WA S ISSUED FOR REOPENING OF THE ASSESSMENT. 10. SIMILARLY, IN THE CASE OF M/S. DARLING PROPERTI ES P. LTD ASSESSEE COMPANY FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2005-06 ON 28.09.2005 DECLARING ITS TOTAL INCOME AS NIL. WITH THE RETURN OF INCOME, THE ASSESSEE HAD ENCLOSED ITS AUDITED BALANCE SHEET AND PROFIT & LOSS ACCOUNT ALONG WITH AUDIT REPORTS, COMPUTATION OF TO TAL INCOME AND OTHER DETAILS. COPY OF THE RETURN OF INCOME, AND A UDITED BALANCE SHEET OF THE ASSESSEE WERE PLACED AT PAGE NOS.1-6 OF THE PAPER BOOK. THE RETURN WAS PROCESSED U/S. 143(1) BUT NO NOTICE U/S. 143(2) WAS ISSUED FOR SCRUTINY ASSESSMENT. FOR ASSESSMENT YEAR 2005- 06, NOTICE U/S. 143(2) OF THE ACT WAS TO BE ISSUED BEFORE EXPIRY OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FU RNISHED. ACCORDINGLY, IN THIS CASE ASSESSING OFFICER SHOULD HAVE ISSUED N OTICE BY 30.09.2006, BUT NO SUCH NOTICE WAS ISSUED. THEREBY THE ASSESSM ENT WAS TREATED TO BE COMPLETED SINCE ON THE DATE OF SEARCH I.E. ON 31 .10.2009, TIME LIMIT FOR ISSUING NOTICE U/S. 143(2) WAS ALREADY EXPIRED MUCH BEFORE DATE OF SEARCH. FURTHER, IN THIS CASE NO NOTICE U/S. 148 WA S ISSUED FOR REOPENING OF THE ASSESSMENT. ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 25 11. THEREFORE, IN ALL THE THREE CASES, ASSESSMENTS HAVE BECOME FINAL AND THERE WERE NO PENDING PROCEEDINGS, THEREFORE TH E ASSESSMENTS ARE UNABATED AS NO INCRIMINATING MATERIAL WAS FOUND. I N SUCH CASES NO ADDITION COULD BE MADE LEGALLY U/S.153A/153C OF THE ACT UNLESS THERE WAS SOME INCRIMINATING MATERIAL FOUND DURING THE CO URSE OF SEARCH. 12. AS OBSERVED BY US IN THE ABOVE PARAS THERE IS N OTHING ON RECORD/ASSESSMENT ORDERS TO SUGGEST THAT THE ADDITI ONS WERE MADE BASED ON ANY SPECIFIC INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF THE SEARCH. HENCE, FOLLOWING THE DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (SUPRA) WE HOLD THAT THEADDITION S MADE WHILE COMPETING THE ASSESSMENTS U/S. 153A/153C CANNOT BE SUSTAINED. 13. SINCE WE HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE WE ARE NOT GOING INTO MERITS OF THE ADDITIONS/DISALLOW ANCE MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT MADE U/S. 143 R .W.S. 153A/153C IN ALL THESE CASES. THE GROUNDS RAISED ON MERITS ARE NOT ADJUDICATED. 14. IN THE RESULT, APPEALS OF THE ASSESSEE ARE PART LY ALLOWED. 2.2. WE FIND THAT IN THE AFORESAID ORDER, BY FOLLO WING THE DECISION FROM HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) 374 ITR 645 (BOM.) AND ANOTHER DECISION IN C IT VS GURINDER SINGH BAWA (386 ITR 483) AND VARIOUS OTHER DECISION, DECIDED THE ISSUE IN FAVOUR OF THE ASSESS EE. IT WAS FOUND THAT BEFORE ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT, THE TIME HAS ALREADY LAPSED AND FURTHER NO NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED FOR REOPENI NG THE ASSESSMENT. IT WAS HELD THAT NO ADDITION COULD BE M ADE UNDER SECTION 153A/153C OF THE ACT UNLESS THERE WAS AN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 26 THE ADDITION SO MADE WAS NOT SUSTAINED. IN SUCH A SITUATION, OUR VIEW FIND SUPPORT FROM THE DECISION IN K.C. BUILDERS VS ACIT (2004) 265 ITR 562 (SC) AND THE RA TIO LAID DOWN IN CIT VS S.P. VIZ, 176 ITR 76 (PATNA). EVEN OTHERWISE, WHEN THE QUANTUM ADDITION IS DELETED, TH ERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT OR FURNISHING INACCURATE PARTICULARS, B ECAUSE, OF ITS OWN, THE PENALTY CANNOT STAND ON ITS LEGS WH EN ADDITION ON THE BASIS OF WHICH THE PENALTY WAS IMPO SED REMAINS NO MORE IN EXISTENCE. THUS, WE FIND NO INFI RMITY IN THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INC OME TAX (APPEAL). IT IS AFFIRMED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17/01/2019. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $%& / VICE PRESIDENT MUMBAI; 1 DATED : 17/01/2019 F{X~{T? P.S/. %.. , ITA NO.129/MUM/2018 M/S FLEMINGO DUTYFREE SHOP PVT. LTD. 27 !'()*+,+-) / COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 534 / THE RESPONDENT. 3. 6 6 7( , ( ) / THE CIT, MUMBAI. 4. 6 6 7( / CIT(A)- , MUMBAI 5. 9$:%(% , 6 , / , / DR, ITAT, MUMBAI 6. ;& / GUARD FILE. ! / BY ORDER, $/ (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI