DCIT, Jaipur V. SIYARAM EXPORTS INDIA PVT. LTD., Jaipur

ITA 136/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2003 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Keywords: Unexplained cash credit; Bogus Share capital; Search and seizure; Accommodation entries; Bogus loan; Reassessment proceedings
• Section: 271(1)(c); 143(3); 142(1); 153A; 147; 68; 148; 132; 15

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B 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. 136/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 THE ACIT, CENTRAL CIRCLE-3, JAIPUR. CUKE VS. M/S SIYARAM EXPORTS INDIA PVT. LTD., 18, SIYARAM STREET, TONK ROAD, DURGAPURA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAKCS 1420 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) & SHRI ROHAN SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 17/06/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 23.12.2016 OF CIT(A), JAIPUR FOR THE ASSESSMENT YEA R 2009-10. THE REVENUE HAS RAISED THE FOLLOWING GROUND:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS . 65,00,000/- MADE BY A.O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961. ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 2 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN ALLOWING THE APPEAL OF THE ASSE SSEE HOLDING THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CANNOT BE INTERFERED WITH BY THE AO WHIL E MAKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRI MINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHIC H WERE NOT PRODUCED OR NOT ALREADY DISCLOSED. 3. THE APPELLANT CRAVE, LEAVE OR RESERVES 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. THE REVENUE HAS ALSO RAISED ADDITIONAL GROUND:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE CIT(A) WAS RIGHT IN ALLOWING THE APPEAL OF THE ASSE SSEE HOLDING THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CANNOT INTERFERED WITH BY THE AO WHILE M AKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRI MINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHIC H WERE NOT PRODUCED OR NOT ALREADY DISCLOSED. 2. THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF TEXTILES & HOME FURNISHING AND TRADING IN BULLIO N. THE ASSESSEE FILED HIS RETURN OF INCOME U/S 139(1) OF THE ACT, ON 30.0 9.2009 DECLARING TOTAL INCOME OF RS. 51,03,870/-. THE SCRUTINY ASSES SMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 23.12.2011 AT THE TOTAL IN COME OF RS. 62,97,619/-. THEREAFTER A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT ON 31.07.2012 IN THE CASE OF SIYARA M (KATTA) GROUP, JAIPUR TO WHOM THE ASSESSEE BELONGS. DURING THE COU RSE OF SEARCH AND ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 3 SEIZURE ACTION VARIOUS ASSETS/BOOKS OF ACCOUNTS AND DOCUMENTS WERE FOUND, INVENTORISED AND SEIZED. IN PURSUANT TO THE SEARCH AND SEIZURE ACTION, THE AO ISSUE NOTICE U/S 153A OF THE ACT ON 28.01.2013 AND IN RESPONSE TO THE SAID NOTICE THE ASSESSEE E-FILED IT S RETURN OF INCOME ON 09.05.2014 DECLARING TOTAL INCOME OF RS. 51,03,870/ - AS DECLARED IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT. AFTER ISSUING NOTICE U/S 143(2) OF THE ACT AS WELL AS NOTICES U/S 142(1) OF THE ACT THE AO MADE ADDITION U/S 68 OF THE ACT IN RESPECT OF SHARE APPL ICATION MONEY RECEIVED FROM M/S ANSH MARCHANDIES PVT. LTD. OF RS. 65,00,000/- BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING, MUMBAI THAT IT WAS ACCOMMODATION ENTRIES PROVIDED BY SHRI PRAVEEN JAIN GROUP THROUGH HIS CONCERNS. THE ASSESSEE CHALLENGED THE A CTION OF THE AO BEFORE THE LD. CIT(A) AND RAISED A LEGAL OBJECTION THAT THE ADDITION MADE BY THE AO ON ACCOUNT OF SHARE APPLICATION MONE Y TREATING AS UNEXPLAINED CASH CREDIT ON THE BASIS OF INFORMATION RECEIVED OF INVESTIGATION WING, MUMBAI IS NOT SUSTAINABLE IN LA W AS IT IS NOT BASED ON ANY INCRIMINATING MATERIAL OR DOCUMENTS FOUND OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION IN CASE OF THE ASSESSEE. THE LD. CIT(A) DELETED THE ADDITION MADE BY THE AO ON THIS LEGAL ISSUE AND ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 4 AGGRIEVED BY THE IMPUGNED ORDER OF THE LD. CIT(A) T HE REVENUE HAS FILED THE PRESENT APPEAL. 3. BEFORE US, THE LD. DR HAS SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 132 R.W.S 153A OF THE ACT THE AO IS BOUND T O ISSUE THE NOTICE FOR INITIATION OF PROCEEDINGS U/S 153A OF THE ACT T O ASSESS OR REASSESS TO THE TOTAL INCOME OF 6 ASSESSMENT YEARS IMMEDIATELY PRECEDING ASSESSMENT YEAR, RELEVANT TO THE PREVIOUS YEAR IN W HICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THE LD. DR HAS TH US CONTENDED THAT THE PROCEEDING U/S 153A ARE MANDATORY IN NATURE AND THERE IS NO ESCAPEMENT OF THE ASSESSMENT OR REASSESSMENT PROCEE DINGS PURSUANT TO THE SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT . THERE IS NO PREJUDICE IF THE AO MADE THE ADDITION U/S 68 OF THE ACT IN THE PROCEEDING U/S 153A BASED ON THE INFORMATION RECEIV ED FROM INVESTIGATION WING, MUMBAI DISCLOSING THE FACT THAT THE SHARE APPLICATION MONEY SHOWN BY THE ASSESSEE IS NOTHING BUT ACCOMMODATION ENTRIES PROVIDE BY SHRI PRAVEEN JAIN GROUP WHEN IT WAS OPENED TO THE AO TO INITIATE THE PROCEEDING U/S 147 /148 OF THE ACT AT THAT POINT OF TIME BUT DUE TO THE MANDATORY NATURE OF THE PROVISIONS OF SECTION 153A OF THE ACT THE AO HAS PROCEEDED IN ACC ORDANCE WITH THE PROVISIONS OF LAW. THE LD. DR HAS THUS CONTENDED TH AT EVEN IF THE SAID ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 5 MATERIAL WHICH WAS RECEIVED BY THE ASSESSING OFFICE R WAS NOT FOUND AND SEIZED IN THE SEARCH AND SEIZURE ACTION IN CASE OF THE ASSESSEE HOWEVER, THE SAME WAS DEDUCTED IN THE OTHER SEARCH AND SEIZU RE ACTION AND THEREFORE, THE CASE WOULD NOT FALL IN THE CATEGORY WHEN THE SAID MATERIAL WAS ALREADY AVAILABLE WITH THE AO AT THE TIME OF PA SSING OF ORDER U/S 143(3) OF THE ACT. THE LD. DR HAS THUS CONTENDED TH AT THE LD. CIT(A) HAS FOLLOWED THE DECISION WHERE THE ADDITIONS WERE MADE ON THE BASIS OF THE MATERIAL WHICH WAS AVAILABLE WITH THE AO AT THE TIME OF PASSING THE ASSESSMENT ORDER U/S 143(3) OF THE ACT. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 4. ON THE OTHER HAND, LD. AR OF THE ASSESSEE HAS SU BMITTED THAT THE ASSESSMENT WAS COMPLETED PRIOR TO THE DATE OF SEARC H AND SEIZURE ACTION ON 31.07.2012 AND THEREFORE THE ASSESSMENT W AS NOT PENDING AS ON THE DATE OF SEARCH. SINCE, THE ASSESSMENT WAS NO T PENDING ON THE DATE OF SEARCH THEREFORE, IT HAS NOT GOT ABATED BY VIRTUE OF SEARCH AND CONSEQUENTLY AS PER SECTION 153A OF THE ACT THE AO WAS TO REASSESS THE TOTAL INCOME OF THE ASSESSEE BASED ON THE INCRIMINA TING MATERIAL FOUND AND SEIZED DURING COURSE OF SEARCH AND SEIZURE ACTI ON IN CASE OF THE ASSESSEE. THE LD. AR HAS THUS CONTENDED THAT WHEN T HERE WAS NO INCRIMINATING MATERIAL FOUND AND SEIZED IN RESPECT OF THE ADDITION MADE ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 6 BY THE AO ON ACCOUNT OF SHARE APPLICATION MONEY THE N EVEN IF THE PROCEEDING U/S 153A OF THE ACT ARE MANDATORY IN NAT URE THE AO WAS REQUIRED TO REITERATE THE ORDER WHICH WAS PASSED U /S 143(3) OF THE ACT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON TH E FOLLOWING DECISIONS:- SAUMYA CONSTRUCTION (P.) LTD. (2017) 81 TAXMANN.COM 292. SUNRISE FINLEASE (P.) LTD. (2018) 89 TAXMANN.COM 1. DEEPAK KUMAR AGARWAL (2017) 86 TAXMANN.COM 3 JIGNESH P. SHAH (2018) 99 TAXMANN.COM 111 HARJEEV AGGARWAL (2016) 70 TAXMANN.COM 95 BEST INFRASTRUCTURE INDIA PVT. LTD. ITA NOS. 1698 T O 1701 & 1753/DEL/2014. HE HAS ALSO RELIED UPON THE DECISION DATED 16.05.20 19 OF THIS TRIBUNAL IN CASE OF SMT. ARUNA SANKHLA VS. DCIT IN ITA NO. 4 83/JP/2016. THUS, THE LD. AR HAS CONTENDED THAT THE LD. CIT(A) HAS DE LETED THE ADDITION BY FOLLOWING VARIOUS DECISIONS ON THIS POINT INCLUD ING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF JAI ST EEL INDIA VS. ACIT 259 CTR 281. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO QUARREL ON THE POIN T THAT IN VIEW OF THE ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 7 BINDING PRECEDENTS OF HONBLE HIGH COURTS THE AO IN THE PROCEEDING U/S 153A OF THE ACT IN RESPECT OF THE ASSESSMENT YEAR W HICH IS NOT PENDING AS ON THE DATE OF SEARCH CANNOT MAKE ADDITION IN TH E ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AND SEIZURE U/S 153A OF THE ACT. SECTION 153A GIVES THE POWER TO TH E TAXING AUTHORITY TO REOPEN 6 ASSESSMENT YEARS RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. THOUGH THE ASSESSMENT OR REASSES SMENT OF THESE SIX YEARS IS MANDATORY IN NATURE PURSUANT TO THE SEARCH AND SEIZURE ACTION HOWEVER, IN CASE OF COMPLETED ASSESSMENT AS ON THE DATE OF SEARCH NO ADDITION IN THE REASSESSMENT PROCEEDINGS U/S 153A C AN BE MADE DEHORS INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE ACTION. ON THE CONTRARY WHERE THE ASSESSMENT IS PENDING ON THE DATE OF SEARCH THE SAME SHALL ABATE AND THE PROCEEDINGS OF ASSESSMENT U/S 153A OF THE ACT WOULD BE CONSIDERED AS REGULAR ASSESSMENT PROCE EDING NOT REASSESSMENT. IN THE CASE IN HAND, THE ASSESSING OF FICER AFTER INITIATION OF PROCEEDING U/S 153A RECEIVED THE INFORMATION FRO M INVESTIGATION WING, MUMBAI AND BASED ON THE SAID INFORMATION THE AO HAS MADE THE ADDITION OF RS. 65 LACS ON ACCOUNT OF SHARE APPLICA TION MONEY BY TREATING THE SAME AS UNEXPLAINED OF CASH CREDIT. TH E RELEVANT FINDING OF THE AO IN PARA 7 AND 8 IS AS UNDER:- ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 8 7. IT WAS SEEN THAT, DURING THE YEAR UNDER CONSIDE RATION, ASSESSEE HAD RECEIVED SHARE APPLICATION MONEY FROM M/S ANSH MARCHANDISE PVT. LTD. (NEW. PLANET TRADING CO P. LT D.) AMOUNTING TO RS. 65,00,000/-. INFORMATION WAS RECEI VED IN THE CASE OF SHRI PRAVEEN JAIN GROUP IS A LEADING ENTRY PROVIDER OF MUMBAI. THE GROUP PROVIDES ACCOMMODATION ENTRIES OF SHARE APPLICATION MONEY, BOGUS UNSECURED LOANS AND ADVANC ES THROUGH VARIOUS BENAMI CONCERNS OPERATED AND MANAGE D BY PRAVEEN JAIN AND OTHERS. A SEARCH AND SEIZURE ACTIO N WAS CARRIED OUT BY THE INVESTIGATION WING, MUMBAI ON 01 /10/2013. THE SEARCH REVEALED VARIOUS INCRIMINATING DOCUMENTA RY EVIDENCES WERE SEIZED. IN ADDITION, STATEMENTS OF V ARIOUS PERSONS ( WHO ASSIST PRAVEEN JAIN IN PROVIDING BOG US LOAN AND ADVANCES THROUGH BENAMI CONCERN TO THE BENEFICIARIE S) WERE RECORDED. ALL THE ABOVE CLEARLY ESTABLISH THE MODUS OPERANDI EMPLOYED BY PRAVEEN JAIN. IN HIS OPERATION ACCOMMOD ATION ENTRIES PERTAINING TO BOGUS SHARE APPLICATION MONEY , BOGUS LOAN & ADVANCES INDULGED IN BY THE GROUP. THE ENTIRE BOGUS NATURE OF THE TRANSACTIONS HAS ALSO BE EN ADMITTED BY THE PRAVEEN JAIN IN HIS STATEMENT RECOR DED U/S 132(4) OF THE INCOME TAX ACT. AS PER THIS INFORMATI ON, THE NAME OF THE ASSESSEE IS APPEARING IN THE LIST OF BE NEFICIARIES WHO HAVE TAKEN THE ACCOMMODATION ENTRY IN THE FORM OF UNSECURED LOANS. 8. IN VIEW OF THE FACT, THE ASSESSEE WAS REQUESTED TO SHOW CAUSE AS TO WHY AN AMOUNT OF RS.65,00,000/- SHOULD NOT BE ADDED BACK TO YOUR RETURNED INCOME UNDER SECTION 68 OF THE INC OME ACT, 1961. NO REPLY HAS BEEN FILED BY THE ASSESSEE IN TH IS REGARD. THEREFORE, BASED ON THE INFORMATION WITH THE INVEST IGATION DEPARTMENT, STATEMENT RECORDED U/S 132(4) OF SHRI P RAVEEN JAIN AND VARIOUS INCRIMINATING DOCUMENTARY EVIDENCE FOUND FROM THE SEARCH AND SEIZURE CARRIED OUT BY INVESTIG ATION WING, MUMBAI ON THE SAID GROUP ON 01.10.2013, AND T HE EXISTENCE OF NEXUS AS BRIEFED ABOVE CANNOT BE CONSI DERED ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 9 AS A CO-INCIDENCE SPECIALLY WHEN SHRI PRAVEEN JAIN HAS CATEGORICALLY ADMITTED THAT HIS GROUP WAS INDULGED IN PROVIDING ACCOMMODATION ENTRIES OF BOGUS UNSECURED LOANS AND ADVANCES THROUGH BENAMI CONCERNS OPERATED AND MANAGED BY HIM AND OTHERS. THUS, UNDER SUCH FACTS A ND CIRCUMSTANCES M/S ANSH MARCHANDISE PVT. LTD. (NEW P LANET TRADING CO P. LTD.) IS NOTHING BUT A BENAMI CONCERN OF SHRI PRAVEEN JAIN GROUP. FROM THE ABOVE CASE LAWS AND DISCUSSION, IT IS CRYS TAL CLEAR THAT- (A) THE PRIMARY ONUS IS ON THE AASESSEE TO ESTABLIS H THE GENUINENESS OF THE TRANSACTION. (B) IF THE INVESTIGATION DONE BY THE DEPARTMENT LEA DS TO DOUBT REGARDING THE GENUINENESS OF THE TRANSACTIONS IT IS INCUMBENT ON THE ASSESSEE TO PRODUCE THE PARTIES ALONG WITH NECE SSARY DOCUMENTS TO ESTABLISH THE GENUINENESS OF THE TRANS ACTION. (C) PAYMENT BY ACCOUNT PAYEE CHEQUE IS NOT SACROSAN CT. IN LIGHT OF THE VARIOUS JUDICIAL PRONOUNCEMENTS AND THE ABOVE DISCUSSIONS IT IS TO BE SEEN WHETHER THE ASSESSEE W AS ABLE TO ESTABLISH THE GENUINENESS OF THE TRANSACTIONS CLAIM ED BY IT OR IT HAS FAILED IN DISCHARGING THIS ONUS. THE INFORMATIO N RECEIVED FROM INVESTIGATION WING AND STATEMENT OF SHRI PRAVE EN JAIN AND GROUP CLEARLY EXPLAINS THE MODUS OPERANDI OF THIS B OGUS TRANSACTIONS. 8. IN THE PRESENT CASE, ASSESSEE HAS RECEIVED SHARE APPLICATION MONEY OF RS. 65,00,000/-, FROM M/S ANSH MARCHANDISE PVT. LTD. (NEW PLANET TRADING CO P. LTD.), A BENAMI CONCERN O F SHRI PRAVEEN JAIN GROUP, AND THIS PARTY IS ONLY PROVIDIN G BOGUS ACCOMMODATION SHARE APPLICATION MONEY, UNSECURED LO ANS AND ADVANCES FOR THE REASONS GIVEN IN DETAIL IN THE ABO VE PARA. THEREFORE, THE SHARE APPLICATION MONEY FROM M/S ANS H MARCHANDISE PVT. LTD. (NEW PLANET TRADING CO P. LTD .) MAY BE ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 10 TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I. T. ACT, 1961. I HEREBY MAKE AN ADDITION OF RS.65,00,000/- TO THE DECLARED INCOME OF THE ASSESSEE U/S 68 OF THE I.T. ACT, 1961 . PENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT, 1961 IS IN ITIATED FOR CONCEALMENT OF INCOME/FOR FURNISHING INACCURATE PAR TICULARS OF INCOME. THE QUESTION BEFORE US IS LIMITED ABOUT THE SUSTAIN ABILITY OF THE ADDITION MADE BY THE AO BASED ON THE MATERIAL WHICH WAS RECEIVED BY HIM SUBSEQUENT TO THE SEARCH AND SEIZURE ACTION IN THE CASE OF THE ASSESSEE BUT GATHERED DURING THE SEARCH AND SEIZURE ACTION IN CASE OF THE SHRI PRAVEEN KUMAR JAIN GROUP. THOUGH TECHNICAL LY THE AO CANNOT REASSESSED THE INCOME OF THE ASSESSEE U/S 15 3A OF THE ACT WHEN THE ASSESSMENT WAS NOT PENDING AS ON THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE IN THE CASE OF THE ASSESSEE T O SUPPORT THE SAID ADDITION. HOWEVER, THE QUESTION ARISES WHETHER THE AO HAD ANY OTHER OPTION AND SECOND RECOURSE OF PROCEEDINGS TO ASSESS THE SAID INCOME OF RS. 65 LACS TREATED AS ACCOMMODATION ENTRIES REC EIVED BY THE ASSESSEE ON ACCOUNT OF SHARE APPLICATION MONEY. THE RE IS NO QUARREL THE AO WAS BOUND TO PROCEED U/S 153A OF THE ACT IN PURSUANT TO THE SEARCH AND SEIZURE ACTION HOWEVER, IF THERE IS NO I NCRIMINATING MATERIAL TO REASSESS THE INCOME OF THE ASSESSEE THE N THE ASSESSING OFFICER LEGALLY CANNOT MAKE THE ADDITION BASED ON T HE INFORMATION ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 11 AND EVIDENCE RECEIVED FROM THE INVESTIGATION WING, MUMBAI AND CONSEQUENTLY OUGHT TO HAVE COMPLETED THE REASSESSME NT U/S 153A OF THE ACT WITHOUT MAKING ANY ADDITION. BUT AT THE SAM E TIME HE COULD INITIATE THE PROCEEDING U/S 147/148 OF THE ACT TO R EASSESS THE INCOME OF THE ASSESSEE ON THE BASIS OF THE INFORMATION AND EVIDENCE RECEIVED FROM THE INVESTIGATION WING, MUMBAI. ACCORDINGLY, I N VIEW OF THE VARIOUS DECISIONS ON THIS POINT AS RELIED UPON BY T HE LD. AR OF THE ASSESSEE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE AO WHILE PASSING THE ORDER U/S 153A OF THE ACT. IT IS ALWAYS OPEN TO THE AO TO INITIATE THE PROCEEDING U/S 147/148 OF THE ACT IF T HE TIME LIMIT FOR INITIATION OF THE SAID PROCEEDINGS WAS STILL AVAILA BLE AS ON THE DATE OF PASSING THE ORDER U/S 153A OF THE ACT. WE FIND THAT EVEN ON THE DATE OF ASSESSMENT ORDER PASSED U/S 153A OF THE ACT ON 3 1.03.2015 THE TIME LIMIT FOR ISSUING THE NOTICE U/S 148 OF THE AC T WAS STILL AVAILABLE WITH THE AO. THEREFORE, EVEN IF THE AO HAD NO JURIS DICTION TO MAKE THE ADDITION U/S 153A HOWEVER, IT WAS OPENED TO THE AO TO PROCEED TO INITIATE THE PROCEEDING U/S 148 OF THE ACT. ACCO RDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE UPHOLD THE ORDER O F THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE AO DUE TO LEGA L HURDLE OF ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 12 MAKING SUCH ADDITION WITHOUT INCRIMINATING MATERIAL BUT IF THE MATERIAL AND EVIDENCE RECEIVED BY THE AO DURING THE COURSE OF REASSESSMENT PROCEEDINGS U/S 153A OF THE ACT WHICH WAS NOT AVAILABLE WITH THE AO AT THE TIME OF PASSING THE AS SESSMENT U/S 143(3) OF THE ACT THEN, IT IS OPEN TO THE AO TO INI TIATE THE PROCEEDING U/S 147/148 OF THE ACT INSTEAD OF MAKING THE ADDITI ON IN THE PROCEEDING U/S 153A OF THE ACT. SINCE, IN THE CASE IN HAND THE TIME WAS AVAILABLE WITH THE AO AS ON THE DATE OF ASSESSM ENT ORDER THEREFORE, IT IS OPEN TO THE AO TO INITIATE THE PRO CEEDING U/S 147/148 OF THE ACT. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/06/2019. 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:- 17/06/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CENTRAL CIRCLE-3, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SH. M/S SIYARAM EXPORTS INDIA PVT. LTD., JAIPUR. 3. VK;DJ VK;QDR@ CIT ITA NO. 136/JP/2017 ACIT VS. M/S SIYARAM EXPORTS INDIA PVT. LTD. 13 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. 136/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR