DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, Jaipur V. MOTISONS ENTERTAINMENT (INDIA) PVT. LTD., Jaipur

ITA 1325/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3359 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: GULSHAN AGARWAL CAS ITA NO
• Keywords: Unexplained cash credit; Bogus Share capital; Gift; Business income; Revision of order; Income from undisclosed sources; Search and seizure; Document seized; Principle of natural justice; Question of law; Validity of assessment; Block assessment; Onus to prove; Revised return; Documents seized; Reassessment proceedings; Set aside
• Section: 271(1)(c); 143(3); 133A; 153A; 139(5); 143(1); 274; 191; 139(1); 64; 147; 68; 148; 132; 10; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA - @ ITA NO. 1322/JP/2018 FU/KZKJ.K O'KZ @ ASSESSMENT YEAR : 2012-13 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. C UKE VS. M/S MOTISONS BUILDTECH PVT. LTD., B-9, VIVEKANAND MARG, C-SCHEME, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AADCM 8806 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA - @ ITA NOS. 1324 & 1325/JP/2018 FU/KZKJ.K O'KZ @ ASSESSMENT YEARS: 2011-12 & 2012-13 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. CUKE VS. M/S MOTISONS ENTERTAINMENT PVT. LTD., SB-110, 7 TH FLOOR, MOTISONS TOWER, LAL KOTHI, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AAECM 9733 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA - @ ITA NOS. 1326, 1327 & 1328/JP/2018 FU/KZKJ.K O'KZ @ ASSESSMENT YEARS : 2011-12, 2012-13 & 2013-14 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. CUKE VS. M/S MOTISONS GLOBAL PVT. LTD., SB-110, 7 TH FLOOR, MOTISONS TOWER, LAL KOTHI, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AAFCM 1708 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT-DR) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL & SHRI GULSHAN AGARWAL (CAS). 2 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. LQUOKBZ DH RKJH[K @ DATE OF HEARING: 11/11/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 15/11/2019 VKNS'K@ ORDER PER: BENCH THESE SIX APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A)-IV, JAIPUR DATED 10/09/2018 AND 17/09/2018 RESPECTIVELY PASSED IN CASE OF THREE GROUP CONCERN FOR THE A.Y. 2011-12 TO 2013-14. ALL THESE APPEALS ARE ARISING FROM THE ASSESSMENT FRAMED BY THE A.O. IN PURSUANT TO THE SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) CARRIED OUT ON 26/07/2015 WHEREBY THE A.O. MADE ADDITIONS U/S 68 OF THE ACT ON ACCOUNT OF THE SHARE PREMIUM AND SHARE CAPITAL RECEIVED BY THESE COMPANIES DURING THE FINANCIAL YEARS RELEVANT TO THE ASSESSMENT YEARS UNDER CONSIDERATION. 2. SINCE COMMON ISSUES HAVE BEEN RAISED IN THESE SIX APPEALS ARISING FROM IDENTICAL FACTS AND CIRCUMSTANCES AND IN PURSUANT TO THE SAME SEARCH AND SEIZURE ACTION DATED 22/07/2015, THEREFORE, FOR THE SAKE OF CONVENIENCE, ALL THESE SIX APPEALS WERE CLUBBED TOGETHER FOR THE PURPOSE OF HEARING AND DISPOSAL. FOR THE PURPOSE OF RECORDING THE FACTS, THE APPEAL IN THE CASE OF DCIT VS. M/S MOTISONS BUILDTECH PVT. LTD. IN ITA NO. 1322/JP/2018 IS TAKEN AS A LEAD CASE. IN THIS APPEAL, THE REVENUE HAS RAISED FOLLOWING GROUNDS: 3 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. '1. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE CIT(A), HAS ERRED IN DELETING THE ADDITION OF RS 3,68,27,500/- MADE U/S 68 OF THE ACT, IGNORING THE FACT THAT ASSETS OF THE ASSESSEE COMPANY DON'T COMMENSURATE TO PREMIUM CHARGED AND FURTHER IGNORING THE FACT THAT NEITHER ANY BUSINESS ACTIVITY WAS PERFORMED NOR ANY BUSINESS INCOME HAS BEEN SHOWN BY THE ASSESSEE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) IS JUSTIFIED IN DELETING THE ADDITION OF RS. 3,68,27,500/- MADE U/S 68 OF THE IT ACT IGNORING THE FACT THAT NEITHER ANY BUSINESS ACTIVITY WAS PERFORMED NOR ANY BUSINESS INCOME HAS BEEN SHOWN BY THESE CONCERNS FROM WHOM SHARE APPLICATION MONEY HAS BEEN RECEIVED, HENCE IT IS THE UNACCOUNTED MONEY OF THE ASSESSEE COMPANY WHICH HAVE BEEN INTRODUCED IN THE GARB OF SHARE APPLICATION MONEY BY THESE CONCERNS WHICH DON'T HAVE ANY WORTH TO INVEST AT SUCH HIGH PREMIUM. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) IS JUSTIFIED IN ALLOWING THE APPEAL OF THE ASSESSEE HOLDING THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN'T BE INTERFERED WITH BY THE AO AND COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE AO WHILE MAKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED. THE APPELLANT CRAVES, LEAVE OR RESERVING THE RIGHT TO AMEND MODIFY, ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 3. THIS IS A SECOND SEARCH U/S 132(1) OF THE ACT CARRIED OUT ON 22/07/2015 AS EARLIER THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT ON 31/10/2012 IN CASE OF MOTISONS GROUP AND ALL THESE THREE ASSESSEES WERE COVERED UNDER THE EARLIER SEARCH DATED 4 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 31/10/2012.PURSUANT TO THE EARLIER SEARCH DATED 31/10/2012, ASSESSMENTS WERE FRAMED U/S 153A AS WELL AS U/S 153B (I)(B) OF THE ACT IN RESPECT OF THESE THREE GROUP CONCERNS FOR THE ASSESSMENTS YEARS WHICH ARE AGAIN SUBJECTED TO ASSESSMENT FRAMED U/S153A OF THE ACT. IN THE EARLIER ASSESSMENTS MADE BY THE A.O. PURSUANT TO THE SEARCH DATED 31/10/2012, AN IDENTICAL ADDITION WAS MADE ON ACCOUNT OF SHARE PREMIUM AND SHARE CAPITAL RECEIVED BY THE ASSESSEE FROM VARIOUS COMPANIES. THE ASSESSEE CHALLENGED THE SAID ADDITION MADE BY THE A.O. WHILE PASSING THE ASSESSMENT ORDER U/S 143(3) R.W.S. 153A OF THE ACT ON 25/3/2015. THE SAID ADDITION WAS PARTLY CONFIRMED BY THE LD. CIT(A) BY MAKING A SLIGHT MODIFICATION OF THE PROVISIONS FROM SECTION 56(1) TO 68 OF THE ACT.ON FURTHER APPEAL, THIS TRIBUNAL DELETED THE ADDITION MADE BY THE A.O.VIDE ORDER DATED 30/10/2017. THUS, DUE TO THE SUBSEQUENT SEARCH ON 22/07/2015, THE A.O. WAS BOUND TO REASSESS THE INCOME OF THESE ASSESSEES IN THE PROCEEDINGS U/S 153A R.W.S 143(3) OF THE ACT. SINCE THE A.O. REPEATED THE ADDITION IN THE ORDERS PASSED U/S 153A OF THE ACT, THE ASSESSEE CHALLENGED THE SAID ADDITION OF THE A.O. BEFORE THE LD. CIT(A). THE LD. CIT(A) DELETED THE ADDITION MADE BY THE A.O. IN RESPECT OF ALL THESE ASSESSMENT YEARS ON THE GROUND THAT THE ADDITION MADE BY THE A.O. WITHOUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE SEARCH AND SEIZURE ACTION IS NOT LEGALLY TENABLE. AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE REVENUE HAS FILED THESE APPEALS. 5 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 4. BEFORE US, THE LD CIT-DR HAS SUBMITTED THAT IT IS NOT A SIMPLE CASE OF REPETITITON OF THE ADDITION BY THE A.O. BUT THE A.O. HAS CONDUCTED A DUE ENQUIRY BY RECORDING THE STATEMENTS OF THE PERSONS CONCERNED AND ONLY AFTER THE ENQUIRY CONDUCTED BY THE A.O. IT WAS HELD THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE CREDITWORTHINESS OF THESE SHARE APPLICANTS AND GENUINENESS OF THE TRANSACTIONS. THE LD CIT-DR HAS CONTENDED THAT THE A.O. HAS ALSO BROUGHT ON RECORD THE RETURN OF INCOME OF THESE SHARE APPLICANT COMPANIES AND FOUND THAT ALL THESE SAID APPLICANT COMPANIES ARE PAPER COMPANIES WITHOUT HAVING ANY BUSINESS ACTIVITY. THUS, THE LD. CIT-DR HAS CONTENDED THAT THE A.O. WAS DULY AWARE AND CONSCIOUS ABOUT THE FACT THAT THERE WAS AN EARLIER SEARCH ON 31/10/2012 AND IN PURSUANT TO THE EARLIER SEARCH, THE ASSESSMENTS WERE FRAMED U/S 153A AS WELL AS U/S 153B(1)(B) OF THE ACT FOR THESE ASSESSMENT YEARS WHEREIN THE A.O. MADE THE ADDITION ON ACCOUNT OF SHARE PREMIUM RECEIVED BY THE ASSESSEE BY INVOKING PROVISIONS OF SECTION 56(1) OF THE ACT. WHEREAS IN THE PROCEEDINGS UNDER CONSIDERATION, THE A.O. HAS MADE ADDITION U/S 68 OF THE ACT IN RESPECT OF ENTIRE SHARE CAPITAL AS WELL AS SHARE PREMIUM RECEIVED BY THE ASSESSEE. THEREFORE, THERE IS NO BAR FOR MAKING ADDITION IN THE PROCEEDINGS U/S 153A OF THE ACT PURSUANT TO THE SEARCH AND SEIZURE ACTION WHEN THE A.O. IS BOUND TO ASSESS OR REASSESS THE INCOME OF THE SEARCHED PERSON FOR SIX YEARS AS SPECIFIED U/S 153A OF THE ACT. ONCE THE 6 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ASSESSMENTS ARE FALLING UNDER THE SPECIFIED SIX YEARS IMMEDIATELY PRECEDING TO THE FINANCIAL YEAR IN WHICH THE SEARCH HAS BEEN CARRIED OUT THEN THE A.O. IS EMPOWERED AND HAS JURISDICTION TO MAKE THESE ADDITIONS IRRESPECTIVE OF THE FACT THAT AN IDENTICAL ADDITION WAS MADE IN THE EARLIER PROCEEDINGS PURSUANT TO THE EARLIER SEARCH. AS REGARDS THE LEGAL OBJECTION RAISED BY THE ASSESSEE AND ACCEPTED BY THE LD. CIT(A) THAT THE ADDITIONS WERE MADE WITHOUT ANY INCRIMINATING MATERIAL, THE LD CIT-DR HAS SUBMITTED THAT THE ISSUE IS STILL PENDING BEFORE THE HONBLE SUPREME COURT AS AN SLP HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 573 (DEL) AS WELL AS IN THE CASE OF ALLCARGO GLOBAL LOGISTIC LTD., THUS, THE LD CIT-DR HAS SUBMITTED THAT WHEN THE A.O. HAS MADE ADDITION BASED ON THE ENQUIRY CONDUCTED BY HIM, THE SAME HAS TO BE CONSIDERED ON MERITS INSTEAD OF ON THE BASIS OF TECHNICAL OBJECTIONS. HE HAS RELIED UPON THE ORDER OF THE A.O. 5. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT IT IS ADMITTED FACTS THAT IN THIS CASE ASSESSMENT U/S 153A IN PURSUANCE TO SEARCH ON 31-10-2012 WAS COMPLETED BEFORE THE SEARCH OVER THE ASSESSEE ON 22/07/2015. IT IS A SETTLED PROPOSITION OF LAW THAT THERE CANNOT BE A REVIEW UNDER THE GARB OF REASSESSMENT PROCEEDINGS U/S 153A OF THE ACT AND THEREFORE THE REASSESSMENT PROCEEDINGS ARE ABSOLUTELY IN THE ABUSE OF THE PROCESS OF 7 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. LAW, ILLEGAL AND HAD IN LAW. THE PROVISIONS OF SECTION 153A OF THE ACT CANNOT BE APPLIED IN RESPECT OF ASSESSMENT YEAR IN RESPECT OF WHICH ASSESSMENT HAS ALREADY BEEN COMPLETED UNLESS SOME INCRIMINATING MATERIAL/INFORMATION COMES IN THE POSSESSION/KNOWLEDGE OF THE ASSESSING OFFICER DURING THE COURSE OF SEARCH PROCEEDINGS. IT IS RELEVANT TO MENTION HERE THAT THE SCOPE OF THE ASSESSMENT U/S 153A OF INCOME TAX ACT, 1961 IS LIMITED TO SOME INCRIMINATING DOCUMENTS/EVIDENCE FOUND AS A RESULT OF SEARCH AND THE SAME DOES NOT EMPOWER TO THE AO TO MAKE ADDITIONS IN SEARCH ASSESSMENT WITHOUT HAVING ANY INCRIMINATING MATERIAL FOUND AS THE RESULT OF SEARCH OVER AND ABOVE TO UNDISCLOSED ASSETS/EXPENSES/ INCOME ETC. FOUND DURING THE COURSE OF SEARCH. SEARCH U/S 132 WAS CARRIED ON 22.07.2015 OVER THE MOTISONS GROUP AND DURING THE COURSE OF SEARCH THE INCOME TAX DEPARTMENT DID NOT FIND ANY DOCUMENT/ EVIDENCE/MATERIAL TO SHOW THAT THE ASSESSEE WAS HAVING SOME UNACCOUNTED MONEY/INCOME WHICH WAS BROUGHT IN BOOKS OF ACCOUNTS IN THE FORM OF SHARE APPLICATION/SHARE PREMIUM AND THIS FACT IS EVIDENT FROM THE RECORD FOUND/SEIZED AS A RESULT OF SEARCH. FROM A PLAIN READING OF THE PROVISIONS OF SECTION 153A, IT IS EVIDENT THAT IF A SEARCH HAS BEEN INITIATED UNDER SECTION 132(1) OR REQUISITION HAS BEEN MADE UNDER SECTION 132A, THEN THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE UNDER SECTION 153A, REQUIRING SUCH PERSON TO FURNISH 8 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. RETURN OF INCOME OF SIX YEARS IN THE PRESCRIBED FORM FOR THE IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE ASSESSING OFFICER IS LEGALLY REQUIRED TO ASSESS OR RE-ASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING TO THE YEAR OF SEARCH. THE SECOND PROVISO TO SECTION 153A PROVIDES THAT IF THE ASSESSMENT OR RE- ASSESSMENT OF ANY OF THE ASSESSMENT YEAR, FALLING WITHIN THE PERIOD OF SIX YEARS IS PENDING ON THE DATE OF SEARCH, THEN THE SAME SHALL GET ABATED. IN THE PRESENT CASE, FOR THE YEARS UNDER CONSIDERATION, THE ASSESSMENT WAS NOT PENDING AND HAD ATTAINED FINALITY, THEREFORE, THE ASSESSMENT COMPLETED IN THE IMPUGNED ASSESSMENT YEAR WILL NOT GET ABATED. ONCE THAT IS SO, THE LEGAL POSITION AS OF NOW IS THAT THE ADDITIONS OVER AND ABOVE THE FINALLY ASSESSED INCOME (AFTER THE ORDER OF HON'BLE ITAT) CANNOT BE MADE DEHORS THE INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH WHILE COMPLETING THE ASSESSMENT UNDER SECTION 153A. THIS, INTER-ALIA, MEANS THAT IF THERE IS NO INCRIMINATING MATERIAL, THEN THE ORIGINAL ASSESSMENT MADE CAN HE REITERATED AND NO FURTHER ADDITION IS CALLED FOR OTHERWISE THE ADDITION CAN ONLY BE MADE ON THE BASIS OF UNDISCLOSED INCOME DERIVED FROM MATERIAL/DOCUMENTS SEIZED AS A RESULT OF SEARCH. HE HAS RELIED ON THE FOLLOWING DECISIONS: (I) JAI STEEL (INDIA) VS ACIT (2013) 259 CTR 281 (II) DECISION OF THE ITAT JAIPUR BENCH IN THE CASE OF KOTA DALL MILL IN ITA NO. 997/JP/2018 ORDER DATED 31/12/2018. 9 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. (III) PR.CIT, CENTRAL-2, NEW DELHI VS MEETA GUTGUTIA (2017) 395 ITR 526 (DEL). THUS, THE LD AR HAS CONTENDED THAT THE ADDITION MADE BY THE A.O. IN RESPECT OF THE ASSESSMENT YEARS WHICH WAS NOT PENDING AS ON THE DATE OF SEARCH AND WITHOUT ANY REFERENCE TO THE INCRIMINATING MATERIAL ARE NOT LEGALLY TENABLE AND LIABLE TO BE QUASHED/DELETED. THE LD AR HAS FURTHER CONTENDED THAT EVEN OTHERWISE WHEN THE IDENTICAL ADDITION HAS BEEN MADE BY THE A.O. IN THE YEARS ORDERS PASSED U/S 153A AS WELL AS 153B(I)(B) OF THE ACT IN PURSUANT TO THE EARLIER SEARCH DATED 31/10/2012 THEN THE A.O. HAS NO POWER AND JURISDICTION TO REVIEW OR REVISE ITS EARLIER DECISIONS IN THE SECOND PROCEEDINGS U/S 153A OF THE ACT. THUS, HE HAS SUBMITTED THAT IT IS CASE OF DOUBLE ADDITIONS MADE BY THE A.O. FIRST IN THE EARLIER ASSESSMENT FRAMED IN PURSUANT TO THE SEARCH DATED 31/10/2012 AND SECONDLY IN THE PRESENT PROCEEDINGS PURSUANT TO THE SEARCH DATED 22/07/2015. LD. AR HAS SUPPORTED THE IMPUGNED ORDERS OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ADDITIONS MADE BY THE A.O. U/S 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY AND SHARE PREMIUM RECEIVED BY THE ASSESSEE FROM THE VARIOUS COMPANIES HAVE BEEN DELETED BY THE LD. CIT(A) ON THE GROUND THAT AN IDENTICAL ADDITION WAS MADE BY THE A.O. WHILE PASSING THE ASSESSMENT ORDERS U/S 153A AS WELL AS U/S 153B(I)(B) 10 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. OF THE ACT WHICH WERE ALSO SUBJECTED TO APPEALS AND THIS TRIBUNAL DELETED THOSE ADDITIONS MADE BY THE A.O. PURSUANT TO THE FIRST SEARCH DATED 31/10/2012. THE LD. CIT(A) NOTED THE FACT THAT THE ADDITIONS WERE MADE WITHOUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION DATED 22/07/2015. THESE FACTS OF MAKING THE EARLIER ADDITIONS BY THE A.O. IN RESPECT OF THESE SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE IN THE ASSESSMENT ORDERS PASSED IN PURSUANT TO THE SEARCH DATED 31/10/2012 ARE NOT IN DISPUTE. FURTHER IT IS ALSO UNDISPUTED FACT THAT ALL THESE ASSESSMENT PROCEEDINGS WERE ALREADY COMPLETED AND WERE NOT PENDING AS ON THE DATE OF SEARCH I.E. 22/07/2015. THUS, IT IS A RELEVANT AND MATERIAL POINT TO BE CONSIDERED WHETHER THE ADDITIONS MADE BY THE A.O. WITHOUT ANY INCRIMINATING MATERIAL IS SUSTAINABLE IN LAW OR NOR. IN CASE OF MOTISONS BUILDTECH PVT. LTD., THE ASSESSEE HAS SHOWN SHARE CAPITAL AS WELL AS SHARE PREMIUM RECEIVED DURING THE PREVIOUS YEAR RELEVANT TO THE A.Y. 2012-13 FROM THREE COMPANIES NAMELY ALLIANCE TRADECOM PVT. LTD., EVERSHINE SUPPLIERS PVT. LTD. AND REGENT BARTER PVT. LTD. TOTAL RS. 3,68,27,500/-. THE SAID AMOUNT WAS ADDED BY THE A.O. IN THE EARLIER ASSESSMENT ORDERS FRAMED U/S 153A ON 25/03/2015. THE ADDITION SO MADE BY THE A.O. PURSUANT TO THE FIRST SEARCH DATED 31/10/2012 VIDE ASSESSMENT ORDER DATED 25/03/2015 WAS PARTLY CONFIRMED BY THE LD. CIT(A) VIDE ORDER DATED 31/3/2017. ON FURTHER APPEAL, THIS TRIBUNAL 11 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. VIDE ORDER DATED 30/10/2017, DELETED THE SAID ADDITION MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A). THE REVENUE CHALLENGED THE SAID ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT, HOWEVER, THE APPEALS OF THE REVENUE WERE DISMISSED BY THE HONBLE HIGH COURT AND THE FINDING OF THE TRIBUNAL HAS BEEN CONFIRMED. EVEN THE SLP FILED BY THE REVENUE AGAINST THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT WERE ALSO DISMISSED IN ONE GROUP CASE BY THE HONBLE SUPREME COURT VIDE ORDER DATED 23/08/2019. THESE FACTS ARE NOT DISPUTED BY THE REVENUE BEING MATTER OF RECORD. THUS, THE QUESTION ARISES WHETHER THE A.O. HAS THE JURISDICTION TO MAKE THE ADDITION ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE IN THE PROCEEDINGS U/S 153A OF THE ACT WITHOUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED IN THE COURSE OF SEARCH AND SEIZURE ACTION DATED 22/07/2015 AND FURTHER WHEN THE SAME ADDITION WAS MADE BY THE A.O. ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM WHILE FRAMING THE EARLIER ASSESSMENT ORDER U/S 153A OF THE ACT IN PURSUANT TO THE EARLIER SEARCH DATED 31/10/2012. THOUGH, THE A.O. HAS RECORDED THE STATEMENTS OF FIVE PERSONS WHICH ARE CONNECTED TO THE ASSESSEE, HOWEVER, FROM THESE STATEMENTS NOTHING INCRIMINATING HAS BEEN DETECTED OR BROUGHT ON RECORD BY THE A.O. EXCEPT REITERATING ITS VIEW BY THE A.O. AS IT WAS TAKEN WHILE FRAMING THE ASSESSMENT ORDER DATED 25/3/2015. THE STATEMENTS RECORDED BY THE A.O. DURING THE ASSESSMENT PROCEEDINGS 12 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. WOULD NOT CONSTITUTE INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION WHICH CAN BE THE BASIS OF THE ADDITIONS MADE BY THE A.O. HOWEVER, ONCE THE A.O. HAS ALREADY MADE THIS ADDITION THEN HE CANNOT IMPROVE OR REVISE HIS OWN DECISION IN THE PROCEEDINGS U/S 153A OF THE ACT IN ABSENCE OF ANY FURTHER INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SECOND SEARCH CARRIED OUT ON 22/07/2015. THEREFORE, IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND OR SEIZED DISCLOSING ANY UNDISCLOSED INCOME OR UNACCOUNTED INCOME, THE ADDITION MADE BY THE A.O. U/S 68 OF THE ACT IS NOT SUSTAINABLE IN LAW. THERE ARE BINDING PRECEDENTS ON THIS ISSUE INCLUDING THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL (INDIA) VS ACIT (SUPRA) AS WELL AS OTHER DECISIONS INCLUDING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS MEETA GUTGUTIA (SUPRA). THE SAID JUDGMENT OF THE HONBLE DELHI HIGH COURT WAS CHALLENGED BY THE REVENUE BEFORE THE HONBLE SUPREME COURT, HOWEVER, THE SLP FILED BY THE REVENUE WAS DISMISSED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 02/07/2018. WE FURTHER NOTE THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THIS BENCH IN THE CASE OF KOTA DALL MILL VS DCIT IN ITA NOS. 997 TO 1002/JP/2018 AND 1119/JP/2018 AND 1057 TO 1062/JP2018 AND 1210/JP/2018 VIDE ORDER DATED 31/12/2018 IN PARA 6 AS UNDER: 13 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2010-11 TO 13-14 WERE NOT PENDING ON THE DATE OF SEARCH ON 2 ND JULY, 2015. EVEN IN SOME OF THE ASSESSMENT YEARS ORDERS UNDER SECTION 143(3) WERE PASSED AND IN OTHER CASES THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(1) OF THE ACT. THUS, THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2010-11 TO 13-14 WERE NOT GOT ABATED BY VIRTUE OF SEARCH UNDER SECTION 132 ON 2 ND JULY, 2015 AND THE AO WOULD REASSESS THE TOTAL INCOME OF THE ASSESSEE AS PER THE PROVISIONS OF SECTION 153A IN RESPECT OF THESE FOUR ASSESSMENT YEARS I.E. 2010-11 TO 13-14. THE PROCEEDINGS UNDER SECTION 153A IN RESPECT OF THESE FOUR ASSESSMENT YEARS WOULD BE IN THE NATURE OF REASSESSMENT AND NOT IN THE NATURE OF ASSESSMENT AS IN THE CASES OF THE REMAINING TWO ASSESSMENT YEARS I.E. 2014-15 AND 15-16 THOSE WERE GOT ABATED BY VIRTUE OF SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT ON 2 ND JULY, 2015. IT IS A SETTLED PROPOSITION OF LAW THAT THE ASSESSMENT OR REASSESSMENT UNDER SECTION 153A IN RESPECT OF THE ASSESSMENT YEARS WHICH HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEES TOTAL INCOME, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL THE COMPLETED ASSESSMENT CAN ONLY BE REITERATED. THE PROVISIONS OF SECTION 132 READ WITH SECTION 153A OF THE ACT STIPULATE TWO TYPES OF SITUATIONS ONE WHERE THE ASSESSMENT OF ANY ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A OF THE ACT. THEREFORE, THE ASSESSMENT UNDER SECTION 153A IN RESPECT OF THOSE ASSESSMENT YEARS WHICH STAND ABATED DUE TO THE REASON OF PENDING ON THE DATE OF INITIATION OF SEARCH OR REQUISITION SHALL BE THE ORIGINAL/FIRST ASSESSMENT. IN THE SECOND CATEGORY WHERE THE ASSESSMENT OR REASSESSMENT HAS ALREADY BEEN COMPLETED ON THE DATE OF INITIATION OF SEARCH OR MAKING OF REQUISITION AS THE CASE MAY BE, THE ASSESSMENT 14 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. UNDER SECTION 153A WOULD BE IN THE NATURE OF REASSESSMENT. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA WHILE ANALYZING THE PROVISIONS OF SECTION 153A READ WITH SECTION 132 OF THE ACT HAS OBSERVED IN PARA 37 AND 38 AS UNDER :- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEAR CH TAKES PLACE. II . ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III . THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF T HE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE O NLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WO ULD BE BROUGHT TO TAX'. IV . ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL . OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V . IN ABSENCE O F ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'A SSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'R EASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI . INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL AS SESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII . COMPLETED ASSESS MENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCR IMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH 15 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGI NAL ASSESSMENT . CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005-06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. THUS THE HONBLE HIGH COURT HAS HELD THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE HONBLE HIGH COURT HAS ALSO REFERRED THE TERM USED IN SECTION 153A AS ASSESS WHICH IS RELATABLE TO ABATED PROCEEDINGS AND THE WORD REASSESS RELATED TO COMPLETED ASSESSMENT PROCEEDINGS. THEREFORE, THE COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENT OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. THE HONBLE DELHI HIGH COURT HAS REITERATED ITS VIEW IN CASE OF PRINCIPAL CIT VS. KURELE PAPER MILLS (SUPRA) IN PARA 1 TO 3 AS UNDER :- 1. THE REVENUE HAS FILED THE APPEAL AGAINST AN ORDER DATED 14.11.2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN 3761/DEL/2011 PERTAINING TO THE ASSESSMENT YEAR 2002-03. THE QUESTION WAS WHETHER THE LEARNED CIT (APPEALS) HAD ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION OF RS. 89 LACS MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 ('ACT') ON BOGUS SHARE CAPITAL. BUT, THE ISSUE WAS WHETHER THERE WAS ANY INCRIMINATING MATERIAL WHATSOEVER FOUND DURING THE SEARCH TO JUSTIFY INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT. 2. THE COURT FINDS THAT THE ORDER OF THE CIT(APPEALS) REVEALS THAT THERE IS A FACTUAL FINDING THAT 'NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUED WAS FOUND DURING THE COURSE OF SEARCH AS IS MANIFEST FROM THE ORDER OF THE AO.' CONSEQUENTLY, IT WAS HELD THAT THE AO WAS NOT JUSTIFIED IN INVOKING SECTION 68 OF THE ACT FOR THE PURPOSES OF MAKING ADDITIONS ON ACCOUNT OF SHARE CAPITAL. 3. AS FAR AS THE ABOVE FACTS ARE CONCERNED, THERE IS NOTHING SHOWN TO THE COURT TO PERSUADE AND HOLD THAT THE ABOVE FACTUAL DETERMINATION IS PERVERSE. CONSEQUENTLY, AFTER CONSIDERING ALL THE FACTS AND 16 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. CIRCUMSTANCES OF THE CASE, THE COURT IS OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW ARISES IN THE IMPUGNED ORDER OF THE ITAT WHICH REQUIRES EXAMINATION. THE SLP FILED BY THE REVENUE AGAINST THE SAID DECISION OF HONBLE DELHI HIGH COURT WAS DISMISSED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 7 TH DECEMBER, 2015. IN A SUBSEQUENT DECISION, THE HONBLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA HAS AGAIN ANALYZED THIS ISSUE IN PARA 55 TO 71 AS UNDER :- 55. ON THE LEGAL ASPECT OF INVOCATION OF SECTION 153A IN RELATION TO AYS 2000-01 TO 2003-04, THE CENTRAL PLANK OF THE REVENUE'S SUBMISSION IS THE DECISION OF THIS COURT IN SMT. DAYAWANTI GUPTA ( SUPRA ). BEFORE BEGINNING TO EXAMINE THE SAID DECISION, IT IS NECESSARY TO REVISIT THE LEGAL LANDSCAPE IN LIGHT OF THE ELABORATE ARGUMENTS ADVANCED BY THE REVENUE. 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 PROVISIONS, THEREFORE, HAVE TO BE READ TOGETHER. SECTION 153A IS INDEED AN EXTREMELY POTENT POWER WHICH ENABLES THE REVENUE TO RE- OPEN AT LEAST SIX YEARS OF ASSESSMENTS EARLIER TO THE YEAR OF SEARCH. IT IS NOT TO BE EXERCISED LIGHTLY. IT IS ONLY IF DURING THE COURSE OF SEARCH UNDER SECTION 132 INCRIMINATING MATERIAL JUSTIFYING THE RE-OPENING OF THE ASSESSMENTS FOR SIX PREVIOUS YEARS IS FOUND THAT THE INVOCATION OF SECTION 153A QUA EACH OF THE AYS WOULD BE JUSTIFIED. 57. THE QUESTION WHETHER UNEARTHING OF INCRIMINATING MATERIAL RELATING TO ANY ONE OF THE AYS COULD JUSTIFY THE RE-OPENING OF THE ASSESSMENT FOR ALL THE EARLIER AYS WAS CONSIDERED BOTH IN ANIL KUMAR BHATIA ( SUPRA ) AND CHETAN DAS LACHMAN DAS ( SUPRA ). INCIDENTALLY, BOTH THESE DECISIONS WERE DISCUSSED THREADBARE 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 NOT CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE THEREFORE EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN BE INVOKED EVEN UNDER SUCH SITUATION'. THAT QUESTION WAS, THEREFORE, LEFT OPEN. AS FAR AS CHETAN DAS LACHMAN DAS ( SUPRA ) IS CONCERNED, IN PARA 11 OF THE DECISION IT WAS OBSERVED: '11. SECTION 153A (1) (B) PROVIDES FOR THE ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO REPEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' 17 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 58. IN KABUL CHAWLA ( SUPRA ), THE COURT DISCUSSED THE DECISION IN FILATEX 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 BOTH THE SAID CASES THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH, WHEREAS IN THE PRESENT CASE THERE ADMITTEDLY WAS NONE. 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 COMPLETED ASSESSMENTS PRIOR TO THE SEARCH EVEN IF NO INCRIMINATING 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 PAPER MILLS P. LTD. ), THIS COURT DECLINED TO FRAME A QUESTION OF LAW 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 SECTION 153A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOGUS SHARE CAPITAL GAIN. THE ORDER OF THE CIT (A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH.' 59. IN KABUL CHAWLA ( SUPRA ), THE COURT REFERRED TO THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) V. ASSTT. CIT [2013] 36 TAXMANN.COM 523/219 TAXMAN 223 . THE SAID PART OF THE DECISION IN KABUL CHAWLA ( SUPRA ) IN PARAS 33 AND 34 READS AS UNDER: '33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT ( SUPRA ) INVOLVED A CASE WHERE 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 INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE TOTAL INCOME UNDER SECTION 153A OF THE ACT. 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 APPARENT THAT: ( A ) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABA TED IN TERMS O F I I PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; ( B ) REGARDING OTHER CASES, THE ADDITION TO THE INCOME 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 COMPLETED ASSESSMENT CAN BE REITERATED 18 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. AND THE ABATED ASSE SSMENT OR REASSESSMENT CAN BE MADE.' 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FREE TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHILE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT ON THE GROUND THAT IT WAS 'NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION' WHICH WAS IN THE CONTEXT OF SEARCH AND/OR REQUISITION. THE COURT ALSO EXPLAINED THE PURPORT OF THE WORDS 'ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER: '26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS'-HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS.'' 60. IN KABUL CHAWLA ( SUPRA ), THE COURT ALSO TOOK NOTE OF THE DECISION OF THE BOMBAY HIGH COURT IN CIT V. CONTINENTAL WAREHOUSING CORPN (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 ITR 645 (BOM.) WHICH ACCEPTED THE PLEA THAT IF NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF AN ISSUE, THEN NO ADDITIONS IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ASSESSMENT UNDER SECTION 153A AND 153C OF THE ACT. THE LEGAL POSITION WAS THEREAFTER SUMMARIZED IN KABUL CHAWLA ( SUPRA ) AS UNDER: '37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORIL Y ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SH ALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN R ESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS A ND 19 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. REASSESS THE 'TOTAL INCOME' OF THE. AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THE RE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN B E RELATED TO THE EVIDENCE 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 UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DA TE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARAT ELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMP LETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVER ED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' 61. IT APPEARS THAT A NUMBER OF HIGH COURTS HAVE CONCURRED WITH THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ) BEGINNING WITH THE GUJARAT HIGH COURT IN SAUMYA CONSTRUCTION (P.) LTD. ( SUPRA ). THERE, A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 7TH OCTOBER, 2009 AND AN ASSESSMENT CAME TO BE FRAMED UNDER SECTION 143(3) READ WITH SECTION 153A(1)(B) IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE OF RS. 14.5 CRORES AGAINST DECLARED INCOME OF RS. 3.44 CRORES. THE ITAT DELETED THE ADDITIONS ON THE GROUND THAT IT WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH IN RESPECT OF AYS UNDER CONSIDERATION I.E., AY 2006-07. THE GUJARAT HIGH COURT REFERRED TO THE DECISION IN KABUL CHAWLA ( SUPRA ), OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) ( SUPRA ) AND ONE EARLIER DECISION OF THE GUJARAT HIGH COURT ITSELF. IT EXPLAINED IN PARA 15 AND 16 AS UNDER: '15. ON A PLAIN READING OF SECTION 153A OF THE ACT, IT IS EVIDENT THAT THE TRIGGER POINT FOR EXERCISE OF POWERS THEREUNDER IS A SEARCH UNDER SECTION 132 OR A REQUISITION UNDER SECTION 132A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 153A OF THE ACT TO THE PERSON, REQUIRING HIM TO FURNISH THE RETURN OF 20 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND ASSESS OR REASSESS THE SAME. SINCE THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS EVIDENT THAT THE OBJECT OF THE SECTION IS TO BRING TO TAX THE UNDISCLOSED INCOME WHICH IS FOUND DURING THE COURSE OF OR PURSUANT TO THE SEARCH OR REQUISITION. HOWEVER, INSTEAD OF THE EARLIER REGIME OF BLOCK ASSESSMENT WHEREBY, IT WAS ONLY THE UNDISCLOSED INCOME OF THE BLOCK PERIOD THAT WAS ASSESSED, SECTION 153A OF THE ACT SEEKS TO ASSESS THE TOTAL INCOME FOR THE ASSESSMENT YEAR, WHICH IS CLEAR FROM THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. THE SECOND PROVISO MAKES THE INTENTION OF THE LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO THE SIX ASSESSMENT YEARS REFERRED TO IN THE SUB-SECTION PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. SUB-SECTION (2) OF SECTION 153A OF THE ACT PROVIDES THAT IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR ANY OTHER LEGAL PROVISION, THEN THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAD ABATED UNDER THE SECOND PROVISO WOULD STAND REVIVED. THE PROVISO THERETO SAYS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT IF SUCH ORDER OF ANNULMENT IS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR REASSESSMENT FALLING WITHIN THE SIX ASSESSMENT YEARS PRIOR TO THE SEARCH OR REQUISITION STANDS ABATED AND THE TOTAL INCOME OF THE ASSESSEE IS REQUIRED TO BE DETERMINED UNDER SECTION 153A OF THE ACT. SIMILARLY, SUB-SECTION (2) PROVIDES FOR REVIVAL OF ANY ASSESSMENT OR REASSESSMENT WHICH STOOD ABATED, IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153A OF THE ACT IS ANNULLED IN APPEAL OR ANY OTHER PROCEEDING. 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS 'WELL SETTLED AS HELD BY THE SUPREME COURT IN A CATENA OF DECISIONS THAT THE HEADING OR THE SECTION CAN BE REGARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECTION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLEAR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEADING OF SECTION 153. THE INTENTION OF THE LEGISLATURE IS CLEAR, VIZ., TO PROVIDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF THE PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOES WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR REQUISITION, IN OTHER WORDS, THE ASSESSMENT SHOULD CONNECTED WITH SOMETHING ROUND DURING THE SEARCH OR REQUISITION VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION (1) OF SECTION 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISITION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION' OR DISALLOWANCE CAN BE MADE ONLY ON THE BASIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISITION, IN CASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL 21 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. (INDIA) V. ASST. CIT ( SUPRA ), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED, IN CASE WHERE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT UNDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AND AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. ** ** ** 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTENDED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING THAT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS FOUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN RESPECT OF AN THE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS. THE ASSESSMENT IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT. UNDER SECTION 153A OF THE ACT, ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR REQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLOSED DURING THE SEARCH OR REQUISITION. IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COMPLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) V. ASST. CIT ( SUPRA ). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF CIT V. JAYABEN RATILAL SORATHIA ( SUPRA ) WHEREIN IT HAS BEEN HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDERING SECTION 153A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RESPECT TO SIX PRECEDING YEARS ; HOWEVER, THERE MUST BE SOME INCRIMINATING MATERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSMENT YEAR.' 62. SUBSEQUENTLY, IN DEVANGI ALIAS RUPA ( SUPRA ), ANOTHER BENCH OF THE GUJARAT HIGH COURT REITERATED THE ABOVE LEGAL POSITION FOLLOWING ITS EARLIER DECISION IN SAUMYA CONSTRUCTION (P.) LTD. ( SUPRA ) AND OF THIS COURT IN KABUL CHAWLA ( SUPRA ). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN IBC KNOWLEDGE PARK (P.) LTD. ( SUPRA ) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ) AND HELD THAT THERE HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CALCUTTA HIGH COURT IN SALASAR STOCK BROKING LTD. ( SUPRA ), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ). IN GURINDER SINGH BAWA ( SUPRA ), THE BOMBAY HIGH COURT HELD THAT: '6. . . . . . ONCE AN ASSESSMENT HAS ATTAINED FINALITY FOR A PARTICULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF 22 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. INCRIMINATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS.' 63. EVEN THIS COURT HAS IN MAHESH KUMAR GUPTA ( SUPRA ) AND RAM AVTAR VERMA ( SUPRA ) FOLLOWED THE DECISION IN KABUL CHAWLA ( SUPRA ). THE DECISION OF THIS COURT IN KURELE PAPER MILLS (P.) LTD. ( SUPRA ) WHICH WAS REFERRED TO IN KABUL CHAWLA ( SUPRA ) HAS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7TH DECEMBER, 2015. THE DECISION IN DAYAWANTI GUPTA 64. THAT BRINGS US TO THE DECISION IN SMT. DAYAWANTI GUPTA ( SUPRA ). AS RIGHTLY POINTED OUT BY MR. KAUSHIK, LEARNED COUNSEL APPEARING FOR THE RESPONDENT, THAT THERE ARE SEVERAL DISTINGUISHING FEATURES IN THAT CASE WHICH MAKES ITS RATIO INAPPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THE FIRST PLACE, THE ASSESSEES THERE WERE ENGAGED IN THE BUSINESS OF PAN MASALA AND GUTKHA ETC. THE ANSWERS GIVEN TO QUESTIONS POSED TO THE ASSESSEE IN THE COURSE OF SEARCH AND SURVEY PROCEEDINGS IN THAT CASE BRING OUT THE POINTS OF DISTINCTION. IN THE FIRST PLACE, IT WAS STATED THAT THE STATEMENT RECORDED WAS UNDER SECTION 132(4) AND NOT UNDER SECTION 133A. IT WAS A STATEMENT BY THE ASSESSEE HIMSELF. IN RESPONSE TO QUESTION NO. 7 WHETHER ALL THE PURCHASES MADE BY THE FAMILY FIRMS, WERE ENTERED IN THE REGULAR BOOKS OF ACCOUNT, THE ANSWER WAS: 'WE AND OUR FAMILY FIRMS NAMELY M/S. ASSAM SUPARI TRADERS AND M/S. BALAJI PERFUMES GENERALLY TRY TO RECORD THE TRANSACTIONS MADE IN RESPECT OF PURCHASE, MANUFACTURING AND SALES IN OUR REGULAR BOOKS OF ACCOUNTS BUT IT IS ALSO FACT THAT SOME TIME DUE TO SOME FACTORS LIKE INABILITY OF ACCOUNTANT, OUR BUSY SCHEDULE AND SOME FAMILY PROBLEMS, VARIOUS PURCHASES AND SALES OF SUPARI, GUTKA AND OTHER ITEMS DEALT BY OUR FIRMS IS NOT ENTERED AND SHOWN IN THE REGULAR BOOKS OF ACCOUNTS MAINTAINED BY OUR FIRMS.' 65. THEREFORE, THERE WAS A CLEAR ADMISSION BY THE ASSESSEES IN SMT. DAYAWANTI GUPTA ( SUPRA ) THERE THAT THEY WERE NOT MAINTAINING REGULAR BOOKS OF ACCOUNTS AND THE TRANSACTIONS WERE NOT RECORDED THEREIN. 66. FURTHER, IN ANSWER TO QUESTION NO. 11, THE ASSESSEE IN SMT. DAYAWANTI GUPTA ( SUPRA ) WAS CONFRONTED WITH CERTAIN DOCUMENTS SEIZED DURING THE SEARCH. THE ANSWER WAS CATEGORICAL AND READS THUS: 'ANS:- I HEREBY ADMIT THAT THESE PAPERS ALSO CONTEND DETAILS OF VARIOUS TRANSACTIONS INCLUDE PURCHASE/SALES/MANUFACTURING TRADING OF GUTKHA, SUPARI MADE IN CASH OUTSIDE BOOKS OF ACCOUNTS AND THESE ARE ACTUALLY UNACCOUNTED TRANSACTIONS MADE BY OUR TWO FIRMS NAMELY M/S. ASOM TRADING AND M/S. BALAJI PERFUMES.' 67. BY CONTRAST, THERE IS NO SUCH STATEMENT IN THE PRESENT CASE WHICH CAN BE SAID TO CONSTITUTE AN ADMISSION BY THE ASSESSEE OF A FAILURE TO RECORD ANY TRANSACTION IN THE ACCOUNTS OF THE ASSESSEE FOR THE AYS IN QUESTION. ON THE CONTRARY, THE ASSESSEE HEREIN STATED THAT, HE IS REGULARLY MAINTAINING THE BOOKS OF ACCOUNTS. THE DISCLOSURE MADE IN THE SUM OF RS. 1.10 CRORES WAS ONLY FOR THE YEAR OF SEARCH AND NOT FOR THE EARLIER YEARS. AS ALREADY NOTICED, THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE PRESENT CASE HAVE BEEN ACCEPTED 23 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. BY THE AO. IN RESPONSE TO QUESTION NO. 16 POSED TO MR. PAWAN GADIA, HE STATED THAT THERE WAS NO POSSIBILITY OF MANIPULATION OF THE ACCOUNTS. IN SMT. DAYAWANTI GUPTA ( SUPRA ), BY CONTRAST, THERE WAS A CHART PREPARED CONFIRMING THAT THERE HAD BEEN A YEAR-WISE NON-RECORDING OF TRANSACTIONS. IN SMT. DAYAWANTI GUPTA ( SUPRA ), ON THE BASIS OF MATERIAL RECOVERED DURING SEARCH, THE ADDITIONS WHICH WERE MADE FOR ALL THE YEARS WHEREAS ADDITIONS IN THE PRESENT CASE WERE MADE BY THE AO ONLY FOR AY 2004-05 AND NOT ANY OF THE OTHER YEARS. EVEN THE ADDITIONS MADE FOR AYS 2004-05 WERE SUBSEQUENTLY DELETED BY THE CIT (A), WHICH ORDER WAS AFFIRMED BY THE ITAT. EVEN THE REVENUE HAS CHALLENGED ONLY TWO OF SUCH DELETIONS IN ITA NO. 306/2017. 68. IN PARA 23 OF THE DECISION IN SMT. DAYAWANTI GUPTA ( SUPRA ), IT WAS OBSERVED AS UNDER: '23. THIS COURT IS OF OPINION THAT THE ITAT'S FINDINGS DO NOT REVEAL ANY FUNDAMENTAL ERROR, CALLING FOR CORRECTION. THE INFERENCES DRAWN IN RESPECT OF UNDECLARED INCOME WERE PREMISED ON THE MATERIALS FOUND AS WELL AS THE STATEMENTS RECORDED BY THE ASSESSEES. THESE ADDITIONS THEREFORE WERE NOT BASELESS. GIVEN THAT THE ASSESSING AUTHORITIES IN SUCH CASES HAVE TO DRAW INFERENCES, BECAUSE OF THE NATURE OF THE MATERIALS - SINCE THEY COULD BE SCANTY (AS ONE HABITUALLY CONCEALING INCOME OR INDULGING IN CLANDESTINE OPERATIONS CAN HARDLY BE EXPECTED TO MAINTAIN METICULOUS BOOKS OR RECORDS FOR LONG AND IN ALL PROBABILITY BE ANXIOUS TO DO AWAY WITH SUCH EVIDENCE AT THE SHORTEST POSSIBILITY) THE ELEMENT OF GUESS WORK IS TO HAVE SOME REASONABLE NEXUS WITH THE STATEMENTS RECORDED AND DOCUMENTS SEIZED. IN TILLS CASE, THE DIFFERENCES OF OPINION BETWEEN THE CIT (A) ON THE ONE HAND AND THE AO AND ITAT ON THE OTHER CANNOT BE THE SOLE BASIS FOR DISAGREEING WITH WHAT IS ESSENTIALLY A FACTUAL SURMISE THAT IS LOGICAL AND PLAUSIBLE. THESE FINDINGS DO NOT CALL FOR INTERFERENCE. THE SECOND QUESTION OF LAW IS ANSWERED AGAIN IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE.' 69. WHAT WEIGHED WITH THE COURT IN THE ABOVE DECISION WAS THE 'HABITUAL CONCEALING OF INCOME AND INDULGING IN CLANDESTINE OPERATIONS' AND THAT A PERSON INDULGING IN SUCH ACTIVITIES 'CAN HARDLY BE ACCEPTED TO MAINTAIN METICULOUS BOOKS OR RECORDS FOR LONG.' THESE FACTORS ARE ABSENT IN THE PRESENT CASE. THERE WAS NO JUSTIFICATION AT ALL FOR THE AO TO PROCEED ON SURMISES AND ESTIMATES WITHOUT THERE BEING ANY INCRIMINATING MATERIAL QUA THE AY FOR WHICH HE SOUGHT TO MAKE ADDITIONS OF FRANCHISEE COMMISSION. 70. THE ABOVE DISTINGUISHING FACTORS IN SMT. DAYAWANTI GUPTA ( SUPRA ), THEREFORE, DO NOT DETRACT FROM THE SETTLED LEGAL POSITION IN KABUL CHAWLA ( SUPRA ) WHICH HAS BEEN FOLLOWED NOT ONLY BY THIS COURT IN ITS SUBSEQUENT DECISIONS BUT ALSO BY SEVERAL OTHER HIGH COURTS. 71. FOR ALL OF THE AFOREMENTIONED REASONS, THE COURT IS OF THE VIEW THAT THE ITAT WAS JUSTIFIED IN HOLDING THAT THE INVOCATION OF SECTION 153A BY THE REVENUE FOR THE AYS 2000-01 TO 2003-04 WAS WITHOUT ANY LEGAL BASIS AS THERE WAS NO INCRIMINATING MATERIAL QUA EACH OF THOSE AYS. THE HONBLE DELHI HIGH COURT HAS CONCURRED WITH THE VIEW AS TAKEN IN CASE OF KABUL CHAWLA (SUPRA) AS WELL AS THE DECISION OF HONBLE 24 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. JAI STEEL INDIA LTD. VS. ACIT (SUPRA). EVEN ON THE ISSUE OF ADDITION MADE BY THE AO IN THE PROCEEDINGS UNDER SECTION 153A IN RESPECT OF THE ASSESSMENT YEAR WHICH WAS ALREADY COMPLETED ON THE DATE OF SEARCH, THE HONBLE HIGH COURT HAS HELD THAT IN THE ABSENCE OF ANY MATERIAL WHICH WAS SUBSEQUENTLY UNEARTHED DURING THE SEARCH AND WAS NOT ALREADY AVAILABLE TO THE AO, THE ADDITIONS MADE BY THE AO ON ACCOUNT OF SECURITY DEPOSITS WERE RIGHTLY DELETED BY THE LD. CIT (A). THE RELEVANT OBSERVATIONS OF THE HONBLE HIGH COURT IN CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA (SUPRA) ARE IN PARA 53 AS UNDER :- 53. AT THIS STAGE, IT IS ALSO TO BE NOTICED THAT AN ELABORATE ARGUMENT WAS MADE BY MR. MANCHANDA ON THE ASPECT OF THE SECURITY DEPOSITS ACCEPTED BY THE ASSESSEE. THESE WERE OF TWO KINDS - ONE WAS OF REFUNDABLE SECURITY DEPOSITS AND THE OTHER FOR NON-REFUNDABLE SECURITY DEPOSITS. AS FAR AS THE REFUNDABLE SECURITY DEPOSITS WERE CONCERNED, THE AO HIMSELF IN HIS REMAND REPORT ACCEPTED THEM AS HAVING BEEN DISCLOSED. THIS HAS BEEN NOTICED BY THE CIT (A) IN PARA 7.2.1 OF HIS ORDER FOR AY 2004-05. AS REGARDS NON-REFUNDABLE SECURITY DEPOSIT, THE CIT (A) ACCEPTED THE AO'S FINDINGS THAT TREATING THE SUM AS 'GOODWILL WRITTEN OFF ON DEFERRED BASIS' WAS NOT CORRECT, HENCE THE ADDITION OF RS. 5,09,343 WAS HELD TO BE JUSTIFIED AND CORRECT. IT WAS DULY ACCOUNTED FOR UNDER 'LIABILITIES' AND TRANSFERRED TO INCOME IN A PHASED MANNER. THIS WAS NOT DONE BY MANIPULATING THE ACCOUNT BOOKS OF THE ASSESSEE AS ALLEGED BY THE REVENUE. THIS WOULD HAVE BEEN EVIDENT HAD THE RETURN BEEN PICKED UP FOR SCRUTINY UNDER SECTION 143(3) OF THE ACT. THIS, THEREFORE, WAS NOT MATERIAL WHICH WAS SUBSEQUENTLY UNEARTHED DURING THE SEARCH WHICH WAS NOT ALREADY AVAILABLE TO THE AO. CONSEQUENTLY, THE ADDITIONS SOUGHT TO BE MADE BY THE AO ON ACCOUNT OF SECURITY DEPOSITS WERE RIGHTLY DELETED BY THE CIT (A). THUS THE ESSENTIAL COROLLARY OF THESE DECISIONS IS THAT NO ADDITION CAN BE MADE IN THE PROCEEDINGS UNDER SECTION 153A IN RESPECT OF THE ASSESSMENTS WHICH WERE COMPLETED PRIOR TO THE DATE OF SEARCH EXCEPT BASED ON SOME INCRIMINATING MATERIAL UNEARTHED DURING THE SEARCH WHICH WAS NOT ALREADY AVAILABLE TO THE AO. IT IS PERTINENT TO NOTE THAT THE SLP FILED BY THE REVENUE AGAINST THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA WAS DISMISSED VIDE ORDER DATED 2 ND JULY, 2018. THERE ARE SERIES OF DECISIONS ON THIS ISSUE 25 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. INCLUDING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF M/S. JAI STEEL INDIA VS. ACIT (SUPRA) WHEREIN THE HONBLE HIGH COURT HAS HELD IN PARA 23 TO 30 AS UNDER:- 23. THE RELIANCE PLACED BY THE COUNSEL FOR THE APPELLANT ON THE CASE OF ANIL KUMAR BHATIA ( SUPRA ) ALSO DOES NOT HELP THE CASE OF THE ASSESSEE. THE RELEVANT EXTRACT OF THE SAID JUDGMENT READS AS UNDER: '19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HAVE ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE TO THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTION 153A OPENS. THE TIME- LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH 26 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB-SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE MAKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASE WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY 27 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED OR THE REQUISITION WAS MADE.' (EMPHASIS SUPPLIED) 24. THE SAID JUDGMENT ALSO IN NO UNCERTAIN TERMS HOLDS THAT THE REASSESSMENT OF THE TOTAL INCOME OF THE COMPLETED ASSESSMENTS HAVE TO BE MADE TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH AND THE INCOME THAT ESCAPED ASSESSMENTS ARE REQUIRED TO BE CLUBBED TOGETHER WITH THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT AND ASSESSED AS THE TOTAL INCOME. THE OBSERVATIONS MADE IN THE JUDGMENT CONTRASTING THE PROVISIONS OF DETERMINATION OF UNDISCLOSED INCOME UNDER CHAPTER XIVB WITH DETERMINATION OF TOTAL INCOME UNDER SECTIONS 153A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH DEALS WITH THE PENDING ASSESSMENT/REASSESSMENT PROCEEDINGS. THE FURTHER OBSERVATIONS MADE IN THE CONTEXT OF DE NOVO ASSESSMENT PROCEEDINGS ALSO HAVE TO BE READ IN CONTEXT THAT IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAVE TO BE UNDERTAKEN. 25. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SECTIONS 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) OF THE ACT. 26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. 27. THE ALLAHABAD HIGH COURT IN SMT. SHAILA AGARWAL'S ( SUPRA ) HAS HELD AS UNDER: '19. THE SECOND PROVISO TO SECTION 153A OF THE ACT, REFERS TO ABATEMENT OF THE PENDING ASSESSMENT OR RE-ASSESSMENT 28 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. PROCEEDINGS. THE WORD 'PENDING' DOES NOT OPERATE ANY SUCH INTERPRETATION, THAT WHEREVER THE APPEAL AGAINST SUCH ASSESSMENT OR REASSESSMENT IS PENDING, THE SAME ALONG WITH ASSESSMENT OR REASSESSMENT PROCEEDINGS IS LIABLE TO BE ABATED. THE PRINCIPLES OF INTERPRETATION OF TAXING STATUTES DO NOT PERMIT THE COURT TO INTERPRET THE SECOND PROVISO TO SECTION 153A IN A MANNER THAT WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE COMPLETE, AND THE MATTER IS PENDING IN APPEAL IN THE TRIBUNAL, THE ENTIRE PROCEEDINGS WILL ABATE. 20. THERE IS ANOTHER ASPECT TO THE MATTER, NAMELY THAT THE ABATEMENT OF ANY PROCEEDINGS HAS SERIOUS CAUSES AND EFFECT IN AS MUCH AS THE ABATEMENT OF THE PROCEEDINGS, TAKES AWAY ALL THE CONSEQUENCES THAT ARISE THEREAFTER. IN THE PRESENT CASE AFTER DEDUCTING BOGUS GIFTS IN THE REGULAR ASSESSMENT PROCEEDINGS, THE PROCEEDINGS FOR PENALTY WERE DRAWN UNDER SECTION 271(1)(C) OF THE ACT. THE MATERIAL FOUND IN THE SEARCH MAY BE A GROUND FOR NOTICE AND ASSESSMENT UNDER SECTION 153A OF THE ACT BUT THAT WOULD NOT EFFACE OR TERMINATE ALL THE CONSEQUENCE, WHICH HAS ARISEN OUT OF THE REGULAR ASSESSMENT OR REASSESSMENT RESULTING INTO THE DEMAND OR PROCEEDINGS OF PENALTY. ' (EMPHASIS SUPPLIED) THE SAID JUDGMENT WHICH ESSENTIALLY DEALS WITH SECOND PROVISO TO SECTION 153A OF THE ACT ALSO SUPPORTS THE CONCLUSION, WHICH WE HAVE REACHED HEREINBEFORE. 28. IT HAS BEEN OBSERVED BY THE HON'BLE SUPREME COURT IN K.P. VARGHESE V. ITO [1981] 131 ITR 597/7 TAXMAN 13 THAT 'IT IS WELL RECOGNIZED RULE OF CONSTRUCTION THAT A STATUTORY PROVISION MUST BE SO CONSTRUED, IF POSSIBLE THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED.' 29. THE ARGUMENT OF THE COUNSEL FOR THE APPELLANT IF TAKEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A), ITAT AND THE HIGH COURT, ON A NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED UP TO THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE ( SUPRA ). 30. CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR THE ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE A ASSESSMENT UNDER SECTION 153A OF THE ACT IN PURSUANCE OF SEARCH OR REQUISITION IS REQUIRED TO BE MADE. IN THE CASE IN HAND, THE TRANSACTIONS OF UNSECURED LOANS AS WELL AS INTRODUCTION OF CAPITAL BY THE PARTNERS WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AND AVAILABLE WITH THE AO. FURTHER, DURING THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT ON 2 ND JULY 2015 NO MATERIAL MUCH 29 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. LESS INCRIMINATING MATERIAL WAS EITHER FOUND OR SEIZED TO DISCLOSE ANY UNDISCLOSED INCOME ON ACCOUNT OF UNSECURED LOANS OR PARTNERS CAPITAL RECEIVED BY THE ASSESSEE FIRM. THE AO HAS PROPOSED TO MAKE THE ADDITION ON ACCOUNT OF UNSECURED LOANS AND PARTNERS CAPITAL UNDER SECTION 68 BEING UNEXPLAINED CASH CREDIT SOLELY ON THE BASIS OF THE INFORMATION RECEIVED FROM INVESTIGATION WING KOLKATA. IT IS PERTINENT TO NOTE THAT THE SAID INFORMATION WAS AVAILABLE WITH THE AO PRIOR TO THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT IN CASE OF THE ASSESSEE ON 2 ND JULY, 2015. THEREFORE, EVEN THE SOLE BASIS OF ASSESSMENTS FRAMED UNDER SECTION 153A OF THE ACT IS THE INFORMATION RECEIVED FROM INVESTIGATION WING KOLKATA AND STATEMENT OF ONE SHRI ANAND SHARMA, WHO IS STATED TO BE AN ENTRY OPERATOR AND MANAGED VARIOUS CONCERNS/COMPANIES INCLUDING M/S.ROYAL CRYSTAL DEALERS, ONE OF THE LOAN CREDITORS OF THE ASSESSEE. EXCEPT THE SAID STATEMENT AND REPORT OF THE INVESTIGATION WING KOLKATA, THE AO HAS NEITHER REFERRED TO OR WAS HAVING IN POSSESSION OF ANY MATERIAL TO INDICATE THAT THE UNSECURED LOANS SHOWN IN THE BOOKS OF ACCOUNTS AS WELL AS PARTNERS CAPITAL RECEIVED BY THE ASSESSEE ARE NOTHING BUT ASSESSEES OWN UNACCOUNTED AND UNDISCLOSED INCOME ROUTED BACK IN THE GARB OF UNSECURED LOANS AND PARTNERS CAPITAL. THERE IS NO DISPUTE THAT THESE TRANSACTIONS OF UNSECURED LOANS AND PARTNERS CAPITAL CONTRIBUTION ARE DULY RECORDED IN THE BOOKS OF ACCOUNTS AND DISCLOSED IN THE RETURN OF INCOME WHICH WERE ALREADY COMPLETED AS THE ASSESSMENTS FOR THESE FOUR ASSESSMENT YEARS WERE NOT PENDING ON THE DATE OF SEARCH, THEREFORE, IT IS MANIFEST FROM THE RECORD THAT DURING THE COURSE OF SEARCH AND SEIZURE UNDER SECTION 132 OF THE ACT IN THE CASE OF THE ASSESSEE NO MATERIAL MUCH LESS THE INCRIMINATING MATERIAL WAS UNEARTHED OR ANY UNDISCLOSED INCOME WHICH WAS NOT DISCLOSED IN THE BOOKS OF ACCOUNTS WAS DETECTED OR FOUND. THE ONLY INCRIMINATING MATERIAL WHICH WAS REFERRED BY THE AO IS PAGES 21 TO 26 OF ANNEXURE AS-1 IN RESPECT OF LONG TERM CAPITAL GAIN EARNED BY SHRI RAJENDRA AGARWAL AND HIS FAMILY MEMBERS. THE SAID LONG TERM CAPITAL GAIN WAS DISCLOSED BY SHRI RAJENDRA AGARWAL IN HIS 30 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. STATEMENT UNDER SECTION 132(4) AND, THEREFORE, IT WAS SURRENDERED AND OFFERED TO TAX BY SHRI RAJENDRA AGARWAL AND HIS FAMILY MEMBERS IN THE YEAR OF SEARCH. THE AO HIMSELF HAS NOT MADE ANY ADDITION IN THE HAND OF THE ASSESSEE ON ACCOUNT OF LONG TERM CAPITAL GAIN WHICH WAS FOUND DURING THE COURSE OF SEARCH AND SEIZURE. THUS, EXCEPT THE MATERIAL DISCLOSING THE LONG TERM CAPITAL GAIN IN THE HAND OF SHRI RAJENDRA AGARWAL, NO OTHER INCRIMINATING MATERIAL EITHER FOUND OR REFERRED OR IS THE BASIS OF THE ADDITION MADE BY THE AO WHILE FRAMING THE ASSESSMENT UNDER SECTION 153A OF THE ACT FOR THE ASSESSMENT YEARS 2010-11 TO 13- 14. IT IS APPROPRIATE TO REFER RELEVANT PART OF THE ASSESSMENT ORDER IN PARA 12 PAGES 48 TO 50, PARA 19 PAGE 83 AND PARA 22 PAGE 86 AS UNDER :- 12. SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE FIRM HAVE BEEN DULY CONSIDERED. HOWEVER, EVEN THE VERY ELABORATE AND CASE LAWS LOADED SUBMISSIONS OF THE ASSESSEE ARE TOTALLY OFF THE MARK. AGAINST THE SELF-SPEAKING FACTS OF THE VERY NATURE OF THE ACTIVITIES OF THE SO CALLED PARTNERS PROVIDING HUGE PARTNERS CAPITAL IN THE MOST UNINTERESTED MANNER AND PROVIDING HUGE UNSECURED LOANS WITHOUT ANY COLLATERAL OR OTHER SECURITY, THE EMPHASIS OF THE ASSESSEE FIRM IN ITS SUBMISSIONS HAS BEEN ON SEEKING PROTECTION UNDER VARIOUS JUDICIAL DECISIONS EVEN WITHOUT HAVING ANY FACT COHERENCE. THE SUBMISSIONS MADE BY THE ASSESSEE ARE COMPLETELY DEVOID OF MERIT IN THE LIGHT OF THE FOLLOWING FACTS AND CIRCUMSTANCES; A. THE DEPARTMENT HAS VERY SOUND BASIS TO TREAT, THE RECEIPTS OF UNSECURED LOAN AND PARTNERS CAPITAL FROM THE ABOVE MENTIONED COMPANIES AS BOGUS AND IN GENUINE. THE FINDINGS OF THIS OFFICE AND INVESTIGATION REPORT OF THE INVESTIGATION DIRECTORATE KOLKATA ARE NOT BASED ON ANY PRESUMPTION, ASSUMPTION, GUESS OR BARE SUSPICION. WHERE THE NATURE AND SOURCE OF A RECEIPT, WHETHER IT BE OF MONEY OR OTHER PROPERTY, CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN FOR THE REVENUE TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY PARTICULAR SOURCE AS ENUMERATED THE HONBLE SUPREME COURT IN THE CASE OF ROSHAN DI HATTI V. CIT (1977) 107 ITR 938 (SC) AND KALE KHAN MOHAMMAD HANIF V. CIT (1963) 50 ITR 1 (SC). PRIMA FACIE ONUS IS ALWAYS ON THE ASSESSEE TO PROVE THE CASH CREDIT ENTRY FOUND IN THE BOOKS OF ACCOUNT OF THE 31 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ASSESSEE. IN LAND MARK CASES LIKE KALE KHAN MOHAMMAD HANIF V CIT (1963) 50 ITR 1 (SC), ROSHAN DI HATTI V CIT (1977) 107 ITR (SC) IT HAS BEEN HELD THAT THE LAW IS WELL SETTLED THAT THE ONUS OF PROVING THE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE, IS ON HIM. WHERE THE NATURE AND SOURCE THEREOF CANNOT BE EXPLAINED SATISFACTORILY, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND NO FURTHER BURDEN IS ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY PARTICULAR SOURCE. IT MAY ALSO BE POINTED OUT THAT THE BURDEN OF PROOF IS FLUID FOR THE PURPOSES OF SECTION 68. ONCE ASSESSEE HAS SUBMITTED BASIC DOCUMENTS RELATING TO IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS THEN AO MUST DO SOME INQUIRY TO CALL FOR MORE DETAILS TO INVOKE SECTION 68. B. THE ASSESSEE FIRM HAS FILED CONFIRMATION LETTERS AND THIS OFFICE HAS CARRIED OUT FURTHER ENQUIRY TO EXAMINE THE REALITY OF THE TRANSACTIONS. AN ENQUIRY WAS SENT TO THE INVESTIGATION DIRECTORATE KOLKATA AND IT HAS BEEN ESTABLISHED THAT THESE INVESTOR OR LENDER COMPANIES ARE CONTROLLED BY THE ENTRY OPERATORS. THE STATEMENTS OF VARIOUS ENTRY OPERATORS ARE SUFFICIENT EVIDE4NCES TO SHOW THAT THE UNSECURED LOAN AND PARTNERS CAPITAL ARE ASSESSEES OWN UNDISCLOSED INCOME BROUGHT INTO THE BOOKS OF THE ASSESSEE UNDER THE GARB OF UNSECURED LOAN AND PARTNERS CAPITAL. C. THE DEPARTMENT HAS CARRIED OUT SEARCH OVER THE ASSESSEE GROUP AND DURING THE COURSE OF SEARCH ACTION U/S 132 OF THE I.T. ACT, 1961, THE INCRIMINATING DOCUMENTS SEIZED DURING SEARCH PROCEEDINGS VIDE PG NO. 21 TO 26 OF ANNEXURE AS-1 OF PARTY B-1, WHEREIN THE DETAILS OF YEAR-WISE LTCG EARNED BY SHRI RAJENDRA AGRAWAL AND HIS FAMILY MEMBERS, IS MAINTAINED, WHICH DURING SEARCH ACTION HAS BEEN ACCEPTED TO BE BOGUS BY ALL FAMILY MEMBERS IN THEIR RESPECTIVE STATEMENTS. 19. IN VIEW OF ABOVE FACTS OF THE CASE AND IN THE LIGHT OF ABOVE JUDICIAL DECISION, IT IS ESTABLISHED THAT GENUINENESS OF THE TRANSACTION HAS NOT BEEN PROVED. SECTION 68 OF THE I.T. ACT PROVIDES FOR CHARGING TO INCOME TAX ON ANY SUM CREDITED IN THE BOOKS OF THE ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR IF THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY. IT PLACES NO DUTY UPON THE ASSESSING OFFICER TO POINT TO THE SOURCE FROM WHICH THE MONEY WAS RECEIVED BY THE ASSESSEE. WHERE AN ASSESSEE FAILS TO PROVE SATISFACTORILY THE SOURCE AND THE NATURE OF CERTAIN AMOUNT OF CREDIT DURING THE ACCOUNTING YEAR, THE INCOME-TAX OFFICER IS ENTITLED TO 32 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. DRAW THE INFERENCE THAT THE RECEIPT ARE OF AN ASSESSABLE NATURE. THUS, THE ASSESSEE IS UNABLE TO DISCHARGE ITS BURDEN OF PROOF BY FAILING TO ESTABLISH LENDERS IDENTITY, FORGET THE GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE LENDER. HENCE, THE UNSECURED LOANS AND PARTNERS CAPITAL SHOWN TO HAVE BEEN RECEIVED FROM VARIOUS KOLKATA BASED COMPANIES AND OTHER COMPANIES REMAINED UNEXPLAINED. IN THE CIRCUMSTANCES, I AM LEFT WITH NO OPTION THAN TO TAX THE ENTIRE UNEXPLAINED CREDITS BY WAY OF PARTNERS CAPITAL AND UNSECURED LOANS RECEIVED FROM THE PERSONS MENTIONED IN PARA 5 ABOVE AS UNEXPLAINED CASH CREDITS U/S 68 OF THE INCOME TAX ACT, CHARGEABLE TO TAX AS INCOME OF THE ASSESSEE FIRM FOR THE RESPECTIVE ASSESSMENT YEARS. 22. AFTER EXAMINATION OF THE INFORMATION AND DETAILS PLACED ON RECORD AND DISCUSSION WITH THE ASSESSEE, THE TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER :- RETURNED INCOME AS PER ITR U/S 153A OF THE ACT. RS. 2,82,83,460/- ADDITIONS| UNEXPLAINED CASH CREDITS U/S |68 OF THE ACT IN THE FORM OF |UNSECURED LOAN AND PARTNERS |CAPITAL RS. 67,20,14,999/- ASSESSED INCOME RS. 70,02,98,459/- R/O RS. 70,02,98,459/- THE TOTAL INCOME OF THE ASSESSEE IN THE STATUS OF FIRM FOR ASSESSMENT YEAR 2010-11 RELEVANT TO PREVIOUS YEAR 2009-10 IS ASSESSED AT RS. 70,02,98,459/- U/S 153A READ WITH SECTION 143(3) OF I.T. ACT, 1961. THE FORM ITNS-150 SHOWING CALCULATION OF TAX AND INTEREST CHARGEABLE, IF ANY, IS ATTACHED HEREWITH AND FORMS A PART OF THIS ORDER. A NOTICE OF DEMAND U/S 156 OF THE ACT AND CHALLAN FOR PAYMENT OF TAX, IF PAYABLE, IS HEREBY ISSUED. PENALTY NOTICE U/S 274 RWS 271(1)(C) IS ISSUED SEPARATELY. THE ENTIRE FINDING OF THE AO IS BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING KOLKATA AND STATEMENT OF SHRI ANAND SHARMA. THE LD. CIT (A) THOUGH HAS NOT DISPUTED THE LEGAL PROPOSITION ON THIS ISSUE, HOWEVER, THE CONTENTION OF THE ASSESSEE WAS TURNED DOWN MERELY ON THE GROUND THAT THE SLPS FILED BY THE REVENUE IN THE CASES OF KABUL CHAWLA (SUPRA) AND M/S. ALL CARGO GLOBAL LOGISTICS (SUPRA) ETC. HAVE BEEN ADMITTED FOR DECISION BY THE HONBLE SUPREME COURT. THE RELEVANT PART OF THE FINDING OF THE LD. CIT (A) IN PARA 3.2.2 AND 3.2.4 AT PAGES 35 AND 36 ARE AS UNDER :- 33 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 3.2.2 AS PER THE PROVISIONS OF THIS SECTION WHERE A SEARCH IS INITIATED U/S 132 OF THE ACT, THE A.O SHALL ISSUE A NOTICE REQUIRING THE PERSON SEARCHED TO FURNISH HIS RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. ONCE SUCH RETURNS ARE FILED, THE AO HAS TO ASSESS OR REASSESS THE TOTAL INCOME OF SUCH SIX ASSESSMENT YEARS.(EMPHASIS SUPPLIED BY ME). (THE DECISIVE WORDS USED IN THE PROVISIONS ARE TO 'ASSESSEE OR REASSESS THE TOTAL INCOME' ). THE A.O. IS THUS DUTY BOUND TO DETERMINE THE 'TOTAL INCOME' OF THE ASSESSEE FOR SUCH SIX ASSESSMENT YEARS AND IT IS OBVIOUS THAT 'TOTAL INCOME' REFERS TO THE SUM TOTAL OF INCOME IN RESPECT OF WHICH A PERSON IS ASSESSABLE. THE TOTAL INCOME THEREFORE WILL COVER NOT ONLY THE INCOME EMANATING FROM DECLARED SOURCES OR ANY MATERIAL PLACED BEFORE THE ASSESSING OFFICER BUT FROM ALL SOURCES INCLUDING THE UNDISCLOSED ONES, OR BASED ON THE UNPLACED MATERIAL BEFORE THE AO. 3.2.3 THE CONCEPT OF ASSESS OR REASSESS AND SHALL ABATE AS CONTEMPLATED U/S 153A IS UNDER HOT JUDICIAL DEBATE. I FIND THAT LEGALLY, THIS ISSUE IS VERY CONTENTIOUS IN VIEW OF THE DIVERGENT VIEWS OF THE VARIOUS AUTHORITIES. THE APPELLANT HAS TRIED TO HIGHLIGHT MOST OF THEM. HOWEVER, IT IS EQUALLY PERTINENT TO MENTION HERE THAT THE DEPARTMENT HAS NOT ACCEPTED THE DECISIONS OF HON'BLE MUMBAI HIGH COURT IN THE CASE OF M/S ALL CARGO GLOBAL LOGISTICS AS WELL AS CONTINENTAL WAREHOUSING (NHAVA SHEVA) LTD., AND SLP HAS BEEN FILED BEFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT HAS GRANTED LEAVE VIDE ORDER DATED 12.10.2015 AS REPORTED IN 64 TAXMANN.COM 34 (S.C.). SIMILARLY, IN THE CASE OF KABUL CHAWLA SLP HAS ALSO BEEN FILED. 3.2.4 IN VIEW OF SLPS ADMITTED IN CASE OF KABUL CHAWLA, M/S ALL CARGO GLOBAL LOGISTICS AS WELL AS CONTINENTAL WAREHOUSING (NHAVA SHEVA) LTD., (SUPRA), ASSESSEES CONTENTION CANNOT BE ACCEPTED. MOREOVER, IN ANY CASE, THE ADDITIONS ARE TO BE ADJUDICATED ON MERITS AS PER RELEVANT GROUND OF APPEAL, THE ISSUE RAISED IN THIS GROUND FOR PRESENT REMAINS FOR ACADEMIC DISCUSSION ONLY. ACCORDINGLY, ISSUE RAISED IN GROUND NO. 12 IS DISMISSED. THEREFORE, NEITHER IN THE ASSESSMENT ORDER NOR IN THE ORDER OF THE LD. CIT (A) THERE IS ANY MENTION OR FINDING THAT THE ADDITIONS HAVE BEEN MADE BY THE AO ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE IN THE CASE OF THE ASSESSEE. THE AO HAS SOLELY RELIED UPON THE REPORT OF THE INVESTIGATION WING 34 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. KOLKATA AND STATEMENT OF ONE SHRI ANAND SHARMA RECORDED BY THE INVESTIGATION WING DURING THE SURVEY UNDER SECTION 133A OF THE ACT. THEREFORE, EVEN IF THE INFORMATION/REPORT OF THE INVESTIGATION WING KOLKATA IS CONSIDERED AS A RELEVANT EVIDENCE, THE SAME CANNOT BE REGARDED AS INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH AND SEIZURE UNDER SECTION 132 OF THE IT ACT IN CASE OF THE ASSESSEE. THE REQUIREMENT FOR MAKING THE ADDITION UNDER SECTION 153A IN THE ASSESSMENT YEARS WHERE THE ASSESSMENT WAS NOT PENDING ON THE DATE OF SEARCH AND THE PROCEEDINGS ARE IN THE NATURE OF REASSESSMENT IS ESSENTIALLY THE INCRIMINATING MATERIAL DISCLOSING UNDISCLOSED INCOME WHICH WAS NOT DISCLOSED BY THE ASSESSEE. IN THE CASE IN HAND, THE AO HIMSELF HAS NOT CLAIMED ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE IN THE CASE OF THE ASSESSEE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE BINDING PRECEDENTS ON THIS ISSUE IN WHICH THE SLP FILED BY THE REVENUE WAS ALSO DISMISSED BY THE HONBLE SUPREME COURT, THE ADDITIONS MADE BY THE AO WHILE PASSING THE ASSESSMENT ORDERS UNDER SECTION 153A FOR THE ASSESSMENT YEARS 2010-11 TO 13-14 ARE NOT SUSTAINABLE AND ACCORDINGLY THE SAME ARE LIABLE TO BE DELETED. WE ORDER ACCORDINGLY. IN THE SAID DECISION, THE TRIBUNAL HAS CONSIDERED ALL THE RELEVANT DECISIONS ON THE POINT RELIED UPON BY EITHER OF THE PARTIES AND FINALLY IT WAS HELD THAT THE ADDITION MADE BY THE A.O. WITHOUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED IN THE COURSE OF SEARCH AND SEIZURE ACTION IS NOT SUSTAINABLE PARTICULARLY WHEN THE RELEVANT ASSESSMENT YEARS WERE NOT PENDING AS ON THE DATE OF SEARCH. THE LD. CIT(A) HAS DECIDED THIS ISSUE IN PARA 5 TO 7.3 AS UNDER: 35 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 5. THE APPELLANT HAS RAISED A LEGAL GROUND NO. 1 CHALLENGING THE VALIDITY OF ASSESSMENT MADE 143(3)/U/S 153A VIDE ORDER DATED 30-12-2017. THIS LEGAL GROUND IS ADJUDICATED FIRST AS IT GOES INTO THE ROOT OF THE MATTER. BEFORE THE LEGAL GROUND IS ADJUDICATED UPON THERE ARE CERTAIN BASIC FACTS WHICH MAY HE POINTED HERE. THE APPELLANT WAS SUBJECTED TO SEARCH AND SEIZURE ACTION U/S 132 ON 31-10-2012 (FOR SHORT 1 ST SEARCH). PURSUANT TO THIS, SEARCH NOTICE U/S 153A WAS ISSUED AND ASSESSMENT U/S 143(3)/ 153A WAS FINALIZED ON 25-03-2015. 5.2 THE APPELLANT WAS SUBJECTED TO ANOTHER SEARCH ON 22-07-2015 (FOR SHORT 2 ND SEARCH) AND PURSUANT TO 2 ND SEARCH THE AO ISSUED NOTICE U/S 153A AND FINALIZED ASSESSMENT U/S 143(3)/U/S 153A ON 30-12-2017. THE AO IN THIS ORDER REITERATED THE ASSESSED INCOME U/S 143(3)/U/S 153A ASSESSED IN PURSUANT TO 1 ST SEARCH. THE APPELLANT OBJECTED TO SUCH REITERATION OF ASSESSMENT COMPLETED PURSUANT TO 1 ST SEARCH AS ACCORDING TO THE APPELLANT, ADDITIONS ALREADY MADE IN THE ASSESSMENT U/S 143(3) RWS U/S 153A CANNOT BE MADE AGAIN AS NO NEW INCRIMINATING MATERIAL WAS FOUND IN THE 2 ND SEARCH AND HENCE REPEATING ASSESSMENT IS BAD IN LAW. FURTHER LEARNED A/R SUBMITTED THAT HONBLE ITAT JAIPUR HAS EITHER CONFIRMED ALL THE DELETION MADE BY THE CIT(A) OR HAS DELETED ALL ADDITIONS CONFIRMED BY CIT(A) IN THE ASSESSMENT ORDER PASSED PURSUANT TO 1 ST SEARCH. FOR THE SAKE OF READY REFERENCE THESE DATES MENTIONED ABOVE ARE TABULATED BELOW FOR READY REFERENCE. DATE OF 2 ND SEARCH = 22.7.2015 S NO. DESCRIPTION DATE 1. DATE OF FILING OF ROI U/S 139 28.9.2012 2. DATE OF 1ST SEARCH U/S 132 31.10.2012 36 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 3. DATE OF FILING OF RETURN U/S 153A- REF 1 ST SEARCH 31.8.2013 4. DATE OF ASSESSMENT U/S 143(3)/ 153A- REF 1 ST SEARCH 25.3.2015 5. DATE OF ORDER PASSED BY CIT(A)- REF 1 ST SEARCH 31.3.2017 6. DATE OF ORDER OF AO GIVING EFFECT TO CIT(A) ORDER- 1 ST SEARCH 27.4.2017 7. DATE OF HON'BLE ITAT JAIPUR ORDER- REF 1 ST SEARCH 30 10 2017 8. DATE OF ORDER OF AO GIVING EFFECT TO HON'BLE ITAT JAIPUR ORDER- REF 1 ST SEARCH 28.12.2017 9. DATE OF PASSING OF ORDER U/S 143(3)/153A - 2 ND SEARCH 30.12.2017 5.3 I HAVE PERUSED THE ORDER OF THE AO AND SUBMISSIONS MADE IN THIS REGARD. PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3)/153A SHOWS THAT THE ADDITIONS MADE BY THE AO ARE NOT RELATABLE TO ANY SEIZED MATERIAL FOUND DURING THE COURSE OF 2 ND SEARCH. I ALSO FIND THAT FOR THIS A.YR THE ASSESSMENTS STOOD COMPLETED ON THE DATE OF SEARCH. THE AO REPEATED MERELY THE ASSESSMENT ORDER ON THE DATE OF SEARCH AND THE REASON FOR REITERATING THE ASSESSMENT IS AS UNDER: 23. THE SUBMISSIONS OF THE ASSESSEE HAVE BEEN DULY CONSIDERED. AFTER DUE CONSIDERATION OF THE SUBMISSIONS PUT FORTH BY THE ASSESSEE COMPANY IT IS SEEN THAT THE MAIN OBJECTION OF THE ASSESSEE IS ON THE FOLLOWING ISSUES- (A) THE ASSESSEE COMPANY WAS NOT COVERED IN THE SEARCH U/S 132(1) OF THE I.T. ACT CONDUCTED ON 22-07-2015 ON THE MOTISONS GROUP. (B) DURING THE SEARCH PROCEEDINGS UNDER CONSIDERATION NO INCRIMINATING DOCUMENTS WAS FOUND SO NO ADDITIONS CAN BE MADE OVER AND ABOVE TO INCRIMINATING MATERIAL. (C) THE ISSUE REGARDING ADDITION U/S 68 OF INCOME TAX ACT, 1961 HAS ALREADY BEEN DECIDED BY CIT (A) AND ITAT IN THE CASE OF THE ASSESSEE FOR THE SAME YEAR UNDER THE SAME FACTS AND CIRCUMSTANCES OF THE CASE. 24. THE ABOVE MAIN CONTENTIONS OF THE ASSESSEE COMPANY ARE DEALT WITH AS UNDER. (A) THE NAME OF ASSESSEE COMPANY HAS BEEN WRITTEN ON THE SEARCH WARRANT WHICH WAS DULY SERVED UPON THE PERSON PRESENT AT THE PREMISES AS ON DATE 37 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. OF SEARCH, HENCE THE ASSESSEE CONTENTION THAT IT WAS NOT SEARCHED IS INCORRECT. (B) THE ONGOING ASSESSMENT PROCEEDINGS ARE IN CONSEQUENT TO THE FRESH SEARCH AND SEIZURE ACTION U/S 132(1) OF THE I.T. ACT CONDUCTED ON 22-07-2015 AND THE ASSESSMENT IS UNDER THE FRESH ASSESSING OFFICER. THEREFORE, ASSESSING OFFICER HAS ALL THE POWERS TO LOOK INTO ALL THE ASPECTS OF THE PENDING SCRUTINY CASE. FURTHER, IT IS ALSO WORTHWHILE TO MENTION HERE THAT THE ASSESSEE HAS TAKEN THE PLEA OF THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA 380 ITR 573 (DEL) AND ALL CARGO MURNBAI HIGH COURT WHICH IS NOT ACCEPTABLE BECAUSE THE DEPARTMENT HAS NOT ACCEPTED THE SAID ORDERS AND THE DEPARTMENT HAVE FILED SLP AGAINST THE SAID ORDERS OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA AND HON'BLE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS AS WELL AS CONTINENTAL WAREHOUSING (NHAVA SHEVA) LTD. BEFORE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT HAS GRANTED LEAVE VIDE ORDER DATED 12-10-2015 AS REPORTED IN 64 TAXMANN.COM 34(S.C). SIMILARLY IN THE CASE OF KABUL CHAWLA SLP HAS ALSO BEEN FILED WHICH IS PENDING BEFORE HON'BLE SUPREME COURT. (C) IN THIS CASE IT IS APPARENT THAT IN THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS RECEIVED HUGE SHARE PREMIUM AND NECESSARY ENQUIRIES WERE CONDUCTED WHICH PROVE THAT COMPANIES FROM WHOM SHARE CAPITAL AND SHARE PREMIUM HAVE BEEN RECEIVED HAS HARDLY ANY BUSINESS ACTIVITY. THEREFORE, THE SHARE PREMIUM AND SHARE RESERVES SHOWN BY THEM ARE MERELY BOOK ENTRIES AND ASSESSEE HAS ROUTED ITS UNDISCLOSED INCOME IN THE GRAB OF THESE COMPANIES. ON THE ISSUE OF SHARE PREMIUM ADDITION WERE MADE BY THEN AO FOR AY 2012-13 TREATING THE SHARE PREMIUM AS ASSESSEE'S UNDISCLOSED INCOME AND WAS ADDED U/S 56(1) OF THE I.T. ACT. THIS ORDER WAS CHALLENGED BY THE ASSESSEE BEFORE CIT(A) AND THEN BEFORE THE HON'BLE ITAT. THE HON'BLE ITAT HAS HELD THAT THE ADDITION MADE EARLIER BY THEN AO U/S 56(1) OF THE I.T. ACT WERE NOT CORRECT, SO FAR AS INVOKING OF PROVISIONS OF SEC 56(1) OF THE I.T. ACT IS CONCERNED IN RESPECT OF SHARE PREMIUM RECEIVED AND SUCH ADDITION CAN ONLY BE MADE U/S 68 OF THE I.T. ACT. THE HON'BLE ITAT HAS FURTHER HELD THAT THE CIT(A) HAS NO POWER TO CHANGE THE SECTION FROM 56(1) TO SECTION 68 OF THE I.T. ACT IN THE APPELLATE PROCEEDINGS AND SUCH ADDITION U/S 68 CAN ONLY BE MADE BY THE ASSESSING OFFICER AS PER THE DEFINITION OF SECTION 68 OF THE I.T. ACT. IN VIEW OF THESE OBSERVATION THE ISSUE IS DECIDED AS UNDER. 38 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. IN THE YEAR UNDER CONSIDERATION ADDITION IS BEING MADE U/S 68 OF THE I.T. ACT AS THE ASSESSEE HAS FAILED TO ESTABLISHED THE MAIN INGREDIENTS OF SECTION 68 (I.E. CREDITWORTHINESS OF ALL SUCH COMPANIES WHO HAD PAID SUCH HIGH SHARE PREMIUM). ON IN-DEPTH ANALYSIS OF THE FINANCIAL DATA OF ALL THESE COMPANIES IT IS ESTABLISHED THAT THESE COMPANIES DO NOT HAVE ANY PROFIT EARNING APPARATUS AND ARE SHOWING HARDLY ANY BUSINESS ACTIVITIES CARRIED OUT BY THEM. ALL THESE COMPANIES HAVING NO BUSINESS ACTIVITIES AND NO FIXED ASSETS HAVE SHOWN TO HAVE RECEIVED HIGH SHARE PREMIUM ON THEIR SHARES IN THE VERY FIRST YEAR OF OPERATION. 25. HAVING DEALT WITH EACH OF THE CONTENTION OF THE ASSESSEE AND HAVING FOUND THE SAME TO BE UNTENABLE IT IS IMPORTANT TO PLACE ON RECORD CERTAIN ASPECTS WHICH HAVE A BEARING ON THE ISSUE AT HAND. IT IS TRUE THAT THE APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL. IN A CASE OF THE PRESENT KIND A PARTY WHO RELIES ON A RECITAL IN A DEED HAS TO ESTABLISH THE TRUTH OF THOSE RECITALS, OTHERWISE IT WILL BE VERY EASY TO MAKE SELF-SERVING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APPARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS. 26. IN THIS BACKGROUND, THE SHARE PREMIUM / SHARE CAPITAL PAID BY THE INVESTOR COMPANIES IS NOT GENUINE ON ANY ACCOUNT AND IT IS CLEAR THAT IN FACT ENTIRE MONEY BELONGING TO THE ASSESSEE COMPANY HAS BEEN INTRODUCED BY THESE COMPANIES IN ASSESSEE COMPANY'S BOOKS IN THE GARB OF SHARE PREMIUM. IT IS THEREFORE HELD THAT THE RECEIPT OF RS. 3,68,27,500/- WAS NOT IN ACCORDANCE WITH THE WORTH OF SHARE PURCHASING COMPANIES AS EVIDENT FROM THE BALANCE SHEET AND FURTHER, THE CREDITWORTHINESS OF CONCERNS FROM WHOM SHARE APPLICATION MONEY HAS BEEN RECEIVED IS NOT ESTABLISHED IN TERMS OF TRANSACTIONS OF SECTION 68 OF THE I.T. ACT AS DISCUSSED IN EARLIER PARAS. THEREFORE, TOTAL SHARE PREMIUM AND SHARE CAPITAL AMOUNTING TO RS. 3,68,27,500/- IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE I.T. ACT AS UNDISCLOSED INCOME OF THE ASSESSEE COMPANY. IN MY VIEW, IN SHORT, THE ISSUES TO BE DECIDED IS: 39 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. (A) WHETHER IN CASE OF AN ASSESSMENT IS COMPLETED AND NOT PENDING ON THE DATE OF SEARCH, WHETHER AN AO IS COMPETENT TO TRAVEL BEYOND THE EVIDENCE FOUND AS A RESULT OF SEARCH WHICH DOES NOT SUGGEST ANY UNDISCLOSED INCOME? 6. FOR DECIDING ISSUE (A) ABOVE, THERE CANNOT BE BETTER GUIDANCE THAN THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL (INDIA), (2013) 36 TAXMANN.COM 523. IN THE SAID CASE, DIE FACTS WERE THAT A SEARCH UNDER SECTION 132(1) OF DIE ACT WAS CONDUCTED AT VARIOUS BUSINESS PREMISES OF SUNCITY ALLOYS GROUP OF COMPANIES, JODHPUR, TO WHICH, THE APPELLANT FIRM BELONG AND AT THE RESIDENCE OF DIRECTORS/PARTNERS OF VARIOUS FIRMS/COMPANIES ON 20.02.2004. SEVERAL INCRIMINATING DOCUMENTS WERE RECOVERED FROM THE RESIDENTIAL PREMISES OF SUCH PARTNERS/DIRECTORS AND FROM BUSINESS PREMISES OF THE FIRMS/COMPANIES OF DIE GROUP; NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 05.10.2004 FOR FILING OF RETURN WITHIN 35 DAYS OF RECEIPT OF THE NOTICE, WHICH WAS SERVED ON 12.10.2004; IN COMPLIANCE TO THIS NOTICE, RETURN DECLARING INCOME OF 'NIL' WAS FILED ON 07.04.2005. IN THE RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE, INTER ALIA, CLAIMED DEDUCTION OF SAKS TAX INCENTIVE RELYING ON DECISION IN DIE CASE OF D J. CIT V. RELIANCE INDUSTRIES LTD. [2004] 88 LID 273 (MUM.) (SB). THE SAID CLAIM WAS NOT MADE IN THE ORIGINAL RETURN FILED UNDER SECTION 139(1) OF THE ACT AND IT WAS CONTENDED THAT SUCH CLAIM CAN BE MADE IN THE RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT AS IT WAS OVER RIDING ALL PROCEEDINGS EARLIER TAKEN OVERALL. THE CLAIM WAS NOT HELD TO BE ADMISSIBLE BY ALL THE AUTHORITIES. WHEN FURTHER APPEAL WAS FILED, HONBLE RAJASTHAN HIGH COURT WHILE ANALYSING THE PROVISION OF SEC. 132 R.W.S 153A HELD THUS: 18. TO CONSIDER THE RIVAL SUBMISSIONS MADE AT THE BAR IN THE CONTEXT OF THE PRESENT CASE AND THE SUBSTANTIAL QUESTION OF LAW FRAMED, THE SCOPE OF 'ASSESSMENT AND REASSESSMENT OF TOTAL INCOME' UNDER SECTION 153A(1)(B) AND THE FIRST AND SECOND PROVISO HAVE TO BE CONSIDERED. FURTHER, FOR ANSWERING THE ABOVE ISSUES, GUIDANCE WILL 40 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. HAVE TO BE SOUGHT FROM SECTION 132(1) OF THE ACT, AS SECTION 153A OF THE ACT CANNOT HE READ IN ISOLATION, INASMUCH AS, THE SAME IS TRIGGERED ONLY ON ACCOUNT OF ANY SEARCH/REQUISITION UNDER SECTIONS 132 OR 132A OF THE ACT. IF ANY HOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND, FOUND IN THE COURSE OF SEARCH, SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO CONSIDERATION WHILE ASSESSING OR REASSESSING THE TOTAL INCOME UNDER THE PROVISIONS OF SECTION 153A OF THE ACT. EVEN IN A CASE WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION. THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF SECTIONS 132 OR 132A OF THE ACT, INASMUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENTS DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABATED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED TO BE ASSESSED. 19. THE UNDERLINE PURPOSE OF MAKING ASSESSMENT OF TOTAL INCOME UNDER SECTION 153A OF THE ACT IS, THEREFORE, TO ASSESS INCOME WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. THE PURPOSE OF SECOND PROVISO IS ALSO VERY CLEAR, INASMUCH AS, ONCE A ASSESSMENT OR REASSESSMENT IS 'PENDING' ON THE DATE OF INITIATION OF SEARCH OR REQUISITION AND IN TERMS OF SECTION 153A A RETURN IS FILED AND THE AO IS REQUIRED TO ASSESS THE SAME, THERE CANNOT BE TWO ASSESSMENT ORDERS DETERMINING THE TOTAL INCOME OF THE ASSESSEE FOR THE SAID ASSESSMENT YEAR AND, THEREFORE, THE PROVISO PROVIDES FOR ABATEMENT OF SUCH PENDING ASSESSMENT AND REASSESSMENT PROCEEDINGS AND IT IS ONLY THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT WOULD BE THE ASSESSMENT FOR THE SAID YEAR. 20. THE NECESSARY COROLLARY OF THE ABOVE SECOND PROVISO IS THAT THE ASSESSMENT OR REASSESSMENT PROCEEDINGS, WHICH HAVE ALREADY BEEN 'COMPLETED' AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND, SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN SUCH CASES, WHERE THE ASSESSMENTS ALREADY STANDS COMPLETED, THE AO CAN REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE WITHOUT FOLLOWING THE PROVISIONS OF SECTIONS 147, 148 AND 151 OF THE ACT AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. 21. THE ARGUMENT RAISED BY THE COUNSEL FOR THE APPELLANT TO THE EFFECT THAT ONCE A NOTICE UNDER SECTION 153A OF THE ACT IS ISSUED, THE 41 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ASSESSMENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND ASSESSEE HAS NO WARRANT IN LAW. 22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN 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 APPARENT THAT: (1) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF II PROVISO TO SECTION I53A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO HE MADE; (2) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (3) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST TIME UNDER SECTION 153A OF THE ACT IS NOT COMPLETED, THE CASE IN HAND, HAS TO BE CONSIDERED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRIMINATING IS FOUND. IN SUCH A CASE THOUGH SECTION 153A OF THE ACT WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRED TO BE DONE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. (EMPHASIS SUPPLIED) 6.2 NOTICING THE ABOVE RATIO LAID DOWN, IT CAN BE SAFELY CONCLUDED THAT WHEN A SEARCH IS INITIATED IN THE CASE OF AN APPELLANT, THE AC) SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FILE RETURN IN RESPECT OF EACH ASSESSMENT YEARS FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED AND SHALL ASSESS OR REASSESS THE TOTAL INCOME FOR SUCH YEARS. HOWEVER AS PER SECOND PROVISO, ONLY THOSE ASSESSMENTS WILL ABATE WHICH ARE PENDING ON THE DATE OF SEARCH. THUS THE ASSESSMENT NOT PENDING ON THE DATE OF SEARCH WILL NOT ABATE AND ASSESSMENT FOR SUCH NON PENDING YEARS WILL BE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING 42 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. SEARCH. IN RESPECT OF NON-ABATED ASSESSMENT, THOUGH THE ASSESSMENT IS TO BE FRAMED REGARDING, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED. JUST AS THE APPELLANT CANNOT RAISE ANY ADDITIONAL CLAIM FOR ANY EXEMPTION/DEDUCTION IN RESPECT OF UNABATED ASSESSMENT WHERE NO INCRIMINATING MATERIAL IS FOUND, THE POWERS OF THE AC) WILL BE ALSO LIMITED TO MAKE ADDITION/DISALLOWANCES ONLY TO THE EXTENT OF INCRIMINATING MATERIAL FOR A NON-ABATED ASSESSMENT. THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL (SUPRA) HAS BEEN CONSIDERED IN ALL THE JUDGMENTS OF DELHI HIGH COURT, KARNATAKA HIGH COURT AND GUJARAT HIGH COURT RELIED UPON BY THE APPELLANT AND THEREFORE THEY ATE NOT DISCUSSED HEREIN. AT THE SAME TIME, USEFUL REFERENCE CAN BE MADE TO THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF MURALI AGRO PRODUCTS LTD. (2014) 49 TAXMANN.COM 172 WHEREIN IT WAS HELD THUS: 8. WE FIND IT DIFFICULT TO ACCEPT THE ABOVE CONTENTION RAISED ON BEHALF OF THE REVENUE. THE OBJECT OF INSERTING SECTIONS 153A, 1536 AND 153C BY FINANCE ACT, 2003 BY DISCARDING THE EXISTING PROVISIONS RELATING TO SEARCH CASES CONTAINED IN CHAPTER XIV B OF THE INCOME-TAX ACT, AS STATED IN THE MEMORANDUM EXPLAINING THE PROVISIONS IN THE FINANCE BILL 2003 (SEE 260 ITR (ST) 191 AT 219) WAS THAT UNDER THE EXISTING PROVISIONS RELATING TO SEARCH CASES, OFTEN DISPUTES WERE RAISED ON THE QUESTION, AS TO WHETHER A PARTICULAR INCOME COULD BE TREATED AS 'UNDISCLOSED INCOME' OR WHETHER A PARTICULAR INCOME COULD BE SAID TO BE RELATABLE TO THE MATERIAL FOUND DURING THE COURSE OF SEARCH, ETC. WHICH LED TO PROLONGED LITIGATION. TO OVERCOME THAT DIFFICULTY, THE LEGISLATURE BY FINANCE ACT 2003, DECIDED TO DISCARD CHAPTER XIV B PROVISIONS AND INTRODUCE SECTIONS 153A, 153B AND 153C IN THE IT ACT. 9. WHAT SECTION 153A CONTEMPLATES IS THAT, NOTWITHSTANDING THE REGULAR PROVISIONS FOR ASSESSMENT/REASSESSMENT CONTAINED IN THE IT ACT, WHERE SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A ON OR AFTER 31/5/2003 IN THE CASE OF ANY PERSON, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME WITHIN THE TIME STIPULATED 43 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. THEREIN, IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE AND THEREAFTER ASSESS OR REASSESS THE TOTAL INCOME FOR THOSE ASSESSMENT YEARS. THE SECOND PROVISO TO SECTION 153A PROVIDES FOR ABATEMENT OF ASSESSMENT/REASSESSMENT PROCEEDINGS WHICH ARE PENDING ON THE DATE OF SEARCH/REQUISITION. SECTION 153A[2) PROVIDES THAT WHEN THE ASSESSMENT MADE UNDER SECTION 153(A)(1) IS ANNULLED, THE ASSESSMENT OR REASSESSMENT THAT STOOD ABATED SHALL STAND REVIVED. 10 THUS ON A PLAIN READING OF SECTION 153A OF THE INCOME-TAX ACT, IT BECOMES CLEAR THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153A, IT IS ONLY THE ASSESSMENT/REASSESSMENT PROCEEDINGS THAT ARE PENDING ON THE DATE OF CONDUCTING SEARCH UNDER SECTION 132 OR MAKING REQUISITION UNDER SECTION 132A OF THE ACT STAND ABATED AND NOT THE ASSESSMENTS/REASSESSMENTS ALREADY FINALISED FOR THOSE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE ACT. BY A CIRCULAR NO. 8 OF 2003 DATED 18-9-2003 (SEE 263 ITR (ST) 61 AT 107) THE CBDT HAS CLARIFIED THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153A THE PROCEEDINGS PENDING IN APPEAL, REVISION OR RECTIFICATION PROCEEDINGS AGAINST FINALISED ASSESSMENT/ REASSESSMENT SHALL NOT ABATE. IT IS ONLY BECAUSE, THE FINALISED ASSESSMENTS/REASSESSMENTS DO NOT ABATE, THE APPEAL, REVISION OR RECTIFICATION PENDING AGAINST FINALISED ASSESSMENTS/ REASSESSMENTS WOULD NOT ABATE. THEREFORE, THE ARGUMENT OF THE REVENUE, THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153A THE ASSESSMENTS/REASSESSMENTS FINALISED FOR THE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE INCOME-TAX ACT STAND ABATED CANNOT BE ACCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT MADE UNDER SECTION 153A (1) WHAT STANDS REVIVED IS THE PENDING ASSESSMENT/REASSESSMENT PROCEEDINGS WHICH STOOD ABATED AS PER SECTION 153A(1). 11. IN THE PRESENT CASE, AS CONTENDED BY SHRI MANI, LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSMENT FOR THE ASSESSMENT YEAR 1998-99 WAS FINALISED ON 29-12-2000 AND SEARCH WAS CONDUCTED THEREAFTER ON 3-12-2003. THEREFORE, IN THE FACTS OF THE PRESENT CASE, INITIATION OF PROCEEDINGS UNDER SECTION 153A WOULD NOT AFFECT THE ASSESSMENT FINALISED ON 29-12-2000. 12. ONCE IT IS HELD THAT THE ASSESSMENT FINALIZED ON 29.12.2000 HAS ATTAINED FINALITY, THEN THE DEDUCTION ALLOWED UNDER SECTION 80 HHC OF THE INCOME- TAX ACT AS WELL AS THE LOSS COMPUTED UNDER THE ASSESSMENT DATED 29-12-2000 WOULD ATTAIN FINALITY. IN SUCH A CASE, THE A.O. WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143(3) OF THE IT. ACT COULD NOT HAVE DISTURBED THE 44 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ASSESSMENT/ REASSESSMENT ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS UNDER SECTION 153A OF THE INCOME-TAX ACT ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FINALISED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153A PROCEEDINGS. 6.3 THE ABOVE QUOTED PASSAGE WAS ALSO APPROVED BY BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (374 ITR 645, PARA 30 THEREOF) IT APPEARS THAT THERE IS UNANIMITY OF VIEW ON THE SUBJECT THAT WHEN A SEARCH IS INITIATED AND AN ASSESSMENT IS TO BE FRAMED U/S 151/1 IN RESPECT OF A YEAR WHICH WAS NOT PENDING ON DATE OF SEARCH AND WHICH DOES NOT ABATE, THE SAME CAN BE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED. COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE AO WHILE MAKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED. I HAVE NOT COME ACROSS ANY CONTRARY VIEW BEING TAKEN BY JURISDICTIONAL HIGH COURT OR TRIBUNAL. 6.4 SIMILAR VIEW POINT WAS EXPRESSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA VS. ACIT 380 ITR 573 (DEL HC). THE RELEVANT OBSERVATION OF HON'BLE COURT COULD BE SEEN IN PARA 37 & 38 OF ORDER, SAME IS REPRODUCED BELOW: PARA 37. ON A CONSPECTUS OF SECTION 153A (1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. 45 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. 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 REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL HE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD HE BROUGHT TO TAX', IV. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. SIMILAR VIEW, THAT COMPLETED ASSESSMENT CAN ONLY BE INTERFERED ONLY IF THERE IS INCRIMINATING SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH, ALSO TAKEN IN MANY JUDGMENTS, INCLUDING BY HUI - 1'1)1C ITAT JAIPUR, IN MANY CASES: A) CONTINENTAL WAREHOUSING CORPORATION 3741TR 645 B) PCIT VS. MEETA GUTGUTIA 152 DTR 153 C) VIJAY KUMAR D AGARWAL V/S DCIT IN IT(SS)A NOS 153, 154, 155 &156/AND/2012 46 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. D) RATAN KUMAR SHARMA VS. DCIT ITA 797& 798 /JAIPUR/2014 E) VIKRAM GOYA! VS. DCIT ITA 174/JAIPUR/2017 ETC. F) JADAU JEWELLERS & MANUFACTURER PL VS. ACIT (686/ JAIPUR/2014) G) PRATEEK KOTH ART VS. ACIT (312/JAIPUR/2015. 6.5 COMING BACK TO THE ACTION OF AO OF REITERATING COMPLETED ASSESSMENT ON THE DATE OF SEARCH. I AM OF THE VIEW THAT AO IS NOT CORRECT IN DOING SO AS THE ORDER OF HON'BLE ITAT JAIPUR HAS COME BEFORE COMPLETING THE ASSESSMENT U/S 143(3) DONE PURSUANT TO 2' D SEARCH. 6.6 THE HONBLE ITAT JAIPUR VIDE ITS DEPARTMENTAL APPEAL ORDER ITA. NO. 482/JP/2017 AND ASSESSEE'S APPEAL ORDER ITA NO. 385/JP/2017 DATED 30.10.2017 HAS DISMISSED THE DEPARTMENTAL APPEAL [FOR DELETION OF ADDITIONS BY THE CIT(A)J. THE HON'BLE ITAT, JAIPUR HAS ALSO GRANTED RELIEF OF RS.19,08,447/- DISALLOWANCE OF WHICH WAS CONFIRMED BY THE C1T(A)-4, JAIPUR. 7. IT MAY BY POINTED HERE THAT ORDERS OF HON'BLE TEAT JAIPUR WERE CARRIED TO HON'BLE HIGH COURT OF RAJASTHAN BY THE DEPARTMENT. THE HON'BLE HIGH COURT OF RAJASTHAN HAS DISMISSED ALL THE APPEALS FILED BY THE DEPARTMENT VIDE ORDER DATED 31.7.2018. IN OTHER WORDS, ALL THE GROUNDS OF APPEAL RAISED, AS A RESULT OF 1 ST SEARCH, HAVE NOW ATTAINED FINALITY IN FAVOUR OF APPELLANT. 7.2 THUS MAKING ADDITIONS AGAIN IN THE ORDER U/S 143(3)/U/S 153A PASSED PURSUANT TO 2 ND SEARCH IS NOT ONLY LEGALLY UNTENABLE ( AS PER DISCUSSION IN PAN ABOVE) BUT ALSO IS VIOLATION OF NATURAL JUSTICE AS IT RAISES THE SUBSTANTIAL DEMAND AGAINST THE APPELLANT ON THE ISSUES WHICH HAVE ALREADY BEEN DECIDED IN ITS FAVOUR BY THE HIGHEST FACT FINDING BODY, THE HON'BLE ITAT JAIPUR. 7.3 CONSIDERING THE ABOVE I AM OF THE VIEW THAT AS THE ADDITIONS MADE BY THE AO ARE WITHOUT ANY REFERENCE TO THE SEIZED MATERIAL, THEY ARE NOT LEGALLY TENABLE. THE SAME ARE THEREFORE DIRECTED TO BE DELETED. THE 47 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. LEGAL GROUND TAKEN BY THE APPELLANT IS THUS ALLOWED. ON MERITS, SINCE THE GROUNDS HAVE ALREADY BEEN ADJUDICATED BY THE HON'BLE ITAT JAIPUR AND THERE IS NOT EVEN A SHRED OF NEW MATERIAL/INFORMATION/ SEIZED DOCUMENTS THE ADDITIONS MADE BY THE AO ARE UNSUSTAINABLE ON FACTS AND IN LAW. SAME IS DIRECTED TO BE DELETED. THUS, THE LD. CIT(A) HAS CONSIDERED ALL THE RELEVANT FACTS AS WELL AS BINDING PRECEDENTS ON THIS POINT AND GIVEN THE FINDING THAT AN ASSESSMENT FRAMED U/S 153A OF THE ACT IN RESPECT OF A YEAR WHICH WAS NOT PENDING AS ON THE DATE OF SEARCH AND WHICH DOES NOT ABATE THE SAME CAN BE DISTURBED ONLY ON THE BASIS OF INCRIMINATING MATERIAL. HENCE, THE LD. CIT(A) HAS HELD THAT IN ABSENCE OF INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND CANNOT BE INTERFERED WITH BY THE A.O. WHILE MAKING THE ASSESSMENT U/S 153A OF THE ACT WITHOUT ANY INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH. THE RELEVANT FACTS LEADING TO THE CONCLUSION THAT THE A.O. HAS REPEATED THE ADDITION WHILE FRAMING THE ASSESSMENT U/S 153A OF THE ACT PURSUANT TO THE SEARCH DATED 22/07/2015 WITHOUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH ACTION IS NOT IN DISPUTE. THE REVENUE HAS SUPPORTED ITS CASE ONLY ON THE STATEMENTS RECODED BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH IN OUR CONSIDERED VIEW DO NOT CONSTITUTE INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH. FURTHER EVEN THOSE STATEMENTS RECORDED BY THE A.O. HAVE NOT RESULTED ANY FACT OR MATERIAL TO INDICATE 48 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. ANY UNDISCLOSED INCOME OR UNEXPLAINED CASH CREDITS WHICH CAN BE ADDED U/S 68 OF THE ACT. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION. HENCE, WE UPHOLD THE SAME. 7. IN THE REMAINING FIVE APPEALS I.E. ITA NOS. 1324 TO 1328/JP/2018 AND THE FACTS AND ISSUES ARE IDENTICAL AND BOTH THE LD. CIT-DR AND THE LD AR HAS FAIRLY ACCEPTED THAT THE ADDITIONS ARE MADE BY THE A.O. ON IDENTICAL FACTS AND CIRCUMSTANCES AS THE SAME ADDITION WAS ALSO MADE IN THE ASSESSMENT FRAMED IN PURSUANT TO THE EARLIER SEARCH AND SEIZURE ACTION DATED 31/10/2012 WHICH WERE DELETED BY THIS TRIBUNAL AND THEN THE APPEALS OF THE REVENUE WERE DISMISSED BY THE HONBLE HIGH COURT AS WELL AS SLP IN ONE OF THE CASES BY THE HONBLE SUPREME COURT. THEREFORE, OUR FINDING IN RESPECT OF ITA NO. 1322/JP/2018 IS APPLICABLE MUTATIS MUTANDIS FOR ALL THE OTHER FIVE APPEALS. 8. IN THE RESULT, ALL THESE SIX APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15 TH NOVEMBER, 2019 *RANJAN 49 ITA NO. 1322/JP/2018 & 1324 TO 1328/JP/2018 DCIT VS. M/S MOTISONS BUILDTECH P LTD. & 2 ORS. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE D.C.I.T., CENTRAL CIRCLE-2, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- (I) M/S MOTISONS BUILDTECH PVT. LTD., JAIPUR. (II) M/S MOTISONS ENTERTAINMENT PVT. LTD., JAIPUR. (III) M/S MOTISONS GLOBAL PVT. LTD., JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K]T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 1322/JP/2018 AND 1324 TO 1328/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR