M/S BHAGWATI LACTO VEGETARIAN EXPORTS PVT LTD., FEROZEPUR CANTT V. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, JALANDHAR

ITA 145/ASR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7835 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-06-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHRAY SARNA LD
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Deemed dividend; Assessment record
• Section: 153A; 2(22)(e); 250; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. VIKRAM SINGH YADAV , ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NOS.143 & 145(ASR)/2019 ASSESSMENT YEARS:2011-12 & 2010-11 M/S. BHAGWATI LACTO VEGETARIAN EXPORTS PVT. LTD. SHOP NO.18-1/2, ANAJ MANDI, FEROZEPUR CANTT. [PAN:AADCB 4295Q] VS. DY. CIT, CENTRAL CIRCLE-1, JALANDHAR . (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ASHRAY SARNA (LD. CA ) RESPONDENT BY : SH. CHARAN DASS (LD. DR) DATE OF HEARING : 11.06.2019 DATE OF PRONOUNCEMENT: 22.07.2019 ORDER PER N.K.CHOUDHRY, JM: THESE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE COMPOSITE ORDER DATED 16/01/2019 RELEVAN T FOR THE ASST. YEARS, 2010-11 & 2011-12, PASSED BY THE LD. CIT(A) -5, LUDHIANA U/S. 250 (6) OF THE INCOME TAX ACT, 1961 (HE REINAFTER CALLED AS THE ACT) WHEREBY THE LD. CIT(A) AFFIRMED T HE ASSESSMENT ORDER FRAMED U/S 153 R.W.SEC.144 OF THE ACT, A S EX- PARTE. 2. IN BOTH THE APPEALS, THE ISSUES INVOLVED ARE COMMON IN NATURE AND BASED ON THE COMPOSITE ORDER PASSED BY THE LD . CIT(A), HENCE, FOR THE SAKE OF BREVITY, HAVE BEEN TAK EN FOR ADJUDICATION SIMULTANEOUSLY AND FACTS OF ITA NO.143(ASR )/2019 ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 2 SHALL BE TAKEN INTO CONSIDERATION AND THE RESULT OF THE SAME SHALL ALSO BE APPLICABLE MUTATIS MUTANDIS TO ITA NO.145(ASR)/2019. 3. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 HAS BEEN CARRIED OUT A T THE BUSINESS PREMISES OF THE ASSESSEE ON 11/02/2016 ALONG WITH SEARCH OPERATION IN THE OTHER CONCERNS/PERSONS OF BHAGWAT I GROUP OF FEROZEPUR. ACCORDINGLY, THE PROCEEDINGS U/S 153 A OF THE ACT HAVE BEEN INITIATED BY ISSUING A NOTICE DATED 13/06/2017, AGAINST WHICH THE ASSESSEE FILED ITS RETURN O F INCOME ON DATED 26/10/2017 DISCLOSING TOTAL INCOME AT RS.10,54,190/-. AFTER THE DATE OF SEARCH, INFORMATION WAS RECEIVED FROM REGIONAL ECONOMIC INTELLIGENCE COMMITTEE, AMRITSAR TO THE EFFECT THAT THE STATE VAT AUTHORITIES DURING THE VAT ASSESSMENT, NOTICED THAT THERE WAS UNDERSTATEMENT OF PRODUCTION RESULT OF MILLING OF PADDY BY THE ASSESSEE DUR ING THE RELEVANT FINANCIAL YEARS. ACCORDINGLY, A COPY OF THE RE LEVANT ORDER WAS OBTAINED FROM THE ASSISTANT EXCISE AND TAXATION COMMISSIONER, FEROZEPUR AND THEREAFTER THE COMPARISON WAS MADE BETWEEN THE YIELD CHART AS PER ORDER OF STATE VA T AUTHORITIES AND THE YIELD DISCLOSED BY THE ASSESSEE. THE ASSESSEE THOUGH CLAIMED THAT IT HAS FILED APPEAL AGAINST T HE SAID ORDER AND STILL NO ORDER HAS BEEN PASSED, HOWEVER THE A O DID NOT CONSIDER THE SAID FACT AND PROCEEDED TO RELY UPON THE OR DER OF STATE VAT AUTHORITIES AND ON NOTICING CERTAIN DISCREPANCI ES, ADDED THE AMOUNT OF RS.66,12,057/- IN THE INCOME OF T HE ASSESSEE ON ACCOUNT OF SUPPRESSION IN PRODUCTION. THE ASSESSING OFFICER ALSO ADDED RS.45,83,574/- ON ACCOUNT OF DISALLOWA NCE OF INTEREST EXPENSES U/S 36(1)(III) OF THE ACT AND FURTHER REDUCED ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 3 RS.3,00,000/- FROM THE DONATIONS EXPENSES OF RS.6,00,000 /-. THE ASSESSEE CHALLENGED THE ADDITION OF RS.66,12,057/- ON ACCOUNT OF SUPPRESSION IN PRODUCTION CONVERTED INTO SALES AN D THE ADDITION OF RS.45,83,574/- DISALLOWED U/S 36(1)(II I) OF THE ACT. THE LD. CIT(A) THOUGH DECIDED THE APPEAL OF THE ASSESSEE AS EX-PARTE, HOWEVER TOUCHED UPON THE MERIT OF THE CASE AND DISMISSED THE APPEALS OF THE ASSESSEE BY HOLDING AS UNDER: 3. THE MAXIM VIGILONTIBUS NON-DERMIENTIBUS JURASU BVENUNT I.E. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS, IS APPLICABLE IN THIS CASE. THE HON'BLE ITAT, CHANDIGARH IN ITA NO. 1025- 1027/CHANDIGARH/2005 FOR THE A.Y 2002-03 IN THE CASE OF M/S CHHABRA LAND AND HOUSING LTD, FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF B.N. BHATTACHARGEE, 118 17R 461 (SC), HAS HELD THAT APPEAL DOES NOT MEAN MERELY FILING OF THE APPE AL BUT RATHER, EFFECTIVELY PURSUING IT. THE NOTICES SE NT TO THE APPELLANT BY POST WERE NOT RECEIVED BACK FROM THE P OSTAL AUTHORITIES INDICATING THAT THESE HAVE BEEN SERVED UPON THE APPELLANT. THE DELIVERY OF THE LAST NOTICE DATE D 13.12.2018 ON THE ASSESSEE AS PER SPEED POST TRACKI NG WAS MADE BY THE POSTAL DEPARTMENT ON 18.12.2018. IT IS APPARENT THAT THE APPELLATE IS NOT INTERESTED IN PU RSUING THE APPEAL. FURTHER, APART FROM THE GROUNDS OF APPE AL, THE APPELLANT HAS NOT FILED ANY 'FACTS OF THE CASE' AND IT HAS BEEN MENTIONED IN THE COLUMN AS 'AS PER ASSESSMENT RECORD'. IN BOTH THE YEARS, THE AO HAS DISALLOWED INTEREST U/S 36(1)(III) SINCE LOANS WERE GIVEN TO M/S. BHAGW ATI LACTO FOODS PVT. LTD. AND M/S. GURU NANAK MILK PRODUCTS WITHOUT ANY BUSINESS INTERESTS. AS PER THE AO, THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE NEXUS BETWEEN INTEREST FREE FUNDS AVAILABLE WITH IT WITH THE INTEREST FREE LOANS GIVEN BY THE ASSESSEE. THE AO BY RELYING UPON THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. KUDU INDUSTRIES (IN HA NO, 388 OF 2014 DATED 31.07.2015) APPLIED AVERAGE RATE AT WHICH THE ASSESSEE HAS AVAILED THE ADVANCES. THE APPELLANT HAS NOT SUBMITTED ANYTHING DURING THE APPELLATE PROCEEDINGS IN SUPPOR T OF ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 4 THE GROUNDS OF APPEAL AND THE FINDINGS OF THE AO HA VE NOT BEEN REBUTTED, HENCE THE DISALLOWANCE MADE BY T HE AO ON THIS ACCOUNT IS LIABLE TO BE UPHELD FOR BOTH THE YEARS. FOR ASSESSMENT YEAR 2010-11, ADDITION HAS ALSO BEEN MADE ON ACCOUNT OF SUPPRESSION OF SALES WHICH WAS BASED UPON INFORMATION RECEIVED FROM STATE VAT AUTHORITIES. THE AO HAS MENTIONED THAT ASSESSEE'S REPRESENTATIVE HAS AGREED TO THE PERCENTAGE YIELD BEFORE THE AETC AND THE RESULTANT SUPPRESSION OF YIELD. IT IS ALSO MENTIONED THAT IN THE APPEAL FILE D BEFORE DETC (APPEALS), FEROZEPUR DIVISION, THE ASSESSEE HAS NOT CHALLENGED THE PRODUCTION RESULTS AND ONLY RAISED THE ISSUE OF REVERSAL OF ITC AND PENALTY ETC. THEREFORE, BASED UPON THE ORDER OF STA TE VAT AUTHORITIES, THE YIELD PERCENTAGE AND THE RESUL TANT SUPPRESSION OF YIELD BY THE ASSESSEE HAVE BEEN ADOPTED BY THE AO FOR MAKING ADDITION DURING THE ASSESSMENT PROCEEDINGS. THE TOTAL SUPPRESSION OF YI ELD OF RICE @ 0.53% HAS BEEN CALCULATED AT 1771.21 QUIN TAL AND BY APPLYING THE AVERAGE RATE OF RS. 3,733.08, T HE TOTAL SUPPRESSION OF SALE COMES TO RS.66,12,057/-. DURING THE PRESENT APPELLATE PROCEEDINGS, NOTHING H AS BEEN STATED AND HENCE THE ADDITION MADE BY THE AO I S UPHELD. THE ADDITIONS MADE BY THE AO AND CHALLENGED BY THE ASSESSEE ARE FOUND AS PER LAW. HENCE THE GROUND S OF APPEAL RAISED BY THE ASSESSEE AGAINST THESE ADDITIONS ARE NOT FOUND SUSTAINABLE IN BOTH THE YEA RS. 4. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. 4. THE ASSESSEE BEING AGGRIEVED AGAINST THE ORDER OF THE L D. CIT(A) PREFERRED THE INSTANT APPEAL ON THE FOLLOWING GROUNDS. 1. THAT THE ORDER PASSED BY THE LD. ASSESSING OFFI CER DATED 29.12.2017 IS AGAINST THE LAW AND FACTS OF THE CASE . 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. AO HAS ERRED IN LAW AND ON FACTS IN ADDITION OF RS. 66,12,057/-, ON ACCOUNT OF SUPPRESSION IN PRODUCTION CONVERTED INTO SALES, WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND WIT HOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 5 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. AO HAS ERRED IN LAW AND ON FACTS IN DISALLOWING INT EREST EXPENSES AMOUNTING TO RS.45,83,574/- U/S 36(L)(III) OF THE A CT WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND WITHOUT OBSERVI NG THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT IN ANY CASE AND WITHOUT PREJUDICE TO THE ABO VE GROUNDS, ADDITIONS MADE IN THE IMPUGNED ORDER ARE BEYOND JUR ISDICTION AND ILLEGAL ALSO FOR THE REASON THAT THESE COULD NOT HA VE BEEN MADE SINCE NO INCRIMINATING MATERIAL HAS BEEN FOUND AS A RESULT O F SEARCH WARRANTING IMPUGNED ADDITION. 5 . AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT ADMITTEDLY IN THE SEARCH OPERATION, NO INCRIMINATING M ATERIAL HAS BEEN FOUND WHICH COULD BE RESULTED INTO IMPUGNED ADDI TION. FURTHER THE LD. CIT(A) HAS PASSED AN ORDER WITHOUT GIV ING ADEQUATE OPPORTUNITY OF BEING HEARD AND EVEN THE AD DITIONS MADE BY THE ASSESSING OFFICER AND AFFIRMED BY THE LD. CI T(A) ARE BASED UPON NON-CONSIDERATION OF THE FACTS AND WITHOU T OBSERVING THE PRINCIPLE OF NATURE JUSTICE. THE LD. AR ALSO RELIED UPON THE ORDER PASSED BY THE CO-ORDINATE BENCH IN THE CASE OF SMT. SANJANA MITTAL VS. DCIT, CENTRAL CIRCLE-2, (ITA NO.487/ASR/2018 DECIDED ON 11/03/2019 BY AMRITSAR BENCH , JALANDHAR CAMP) AND SUBMITTED THAT IN THE SAID CASE, N O INCRIMINATING MATERIAL HAS BEEN FOUND AND NO ASSESSMENT PROCEEDINGS WERE PENDING ON THE DATE OF SEARCH PROCEEDIN GS, THEREFORE, IT WAS HELD BY THE BENCH THAT IN A CASE, WH ERE NO INCRIMINATING MATERIEL IS FOUND DURING THE COURSE OF SE ARCH PROCEEDINGS AND THE ASSESSMENT PROCEEDINGS REMAINED UN- ABATED AS ON THE SAID DATE, NO ADDITIONS CAN BE VALIDL Y MADE IN THE HANDS OF THE ASSESSEE. AS THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE ARE EXACTLY SAME TO THE FACTS OF THE DECISION ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 6 RENDERED BY THE CO-ORDINATE BENCH AT JALANDHAR CAMP THEREFORE, NO ADDITION IS SUSTAINABLE. HAVING CONSIDERED THE ORDERS PASSED BY THE AUTHORITIES BELOW AND THE DECISION PASSED BY THE CO-ORDINATE BENCH I N THE CASE OF SMT. SANJANA MITTAL VS. DCIT (SUPRA). THE FIN DING OF THE ORDER PASSED BY THE CO-ORDINATE BENCH IS REPRODUCED HERE IN BELOW FOR THE SAKE OF BREVITY. 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FO R BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIE S AND THE MATERIAL AVAILABLE ON THE RECORD. THE LD. D.R ON A SPECIFIC QUERY BY THE BENCH, HAD CATEGORICALLY STATED THAT THE LOA N OF RS.1,00,000/- THAT WAS RAISED BY THE ASSESSEE FROM M/S BHAGWATI LACTO VEGETARIAN EXPORTS PVT. LTD., FEROZE PUR WAS DULY RECORDED IN THE LATTERS AUDITED BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION AND THE ADDITION OF RS. 1 LAC TOWARDS DEEMED DIVIDEND UNDER SEC. 2(22)(E) OF THE IT ACT WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF T HE SEARCH & SEIZURE PROCEEDINGS. 8. WE FIND FROM THE PERUSAL OF THE ORDER PASSED BY THE LD. CIT(A) THAT THE ASSESSEE WAS A DEBTOR OF THE AFOR EMENTIONED COMPANY VIZ. M/S BHAGWATI LACTO VEGETARIAN EXPORTS PVT. LTD., FEROZPUR IN THE FINANCIAL YEAR 2012-13. RATHER, A P ERUSAL OF THE LEDGER ACCOUNT OF THE ASSESSEE AS APPEARING IN THE BOOKS OF ACCOUNTS OF THE AFORESAID COMPANY VIZ., M/S BHAGWA TI LACTO VEGETARIAN EXPORTS PVT. LTD., FEROZPUR REVEALS THAT SHE HAD RECEIVED AN AMOUNT OF RS. 1,00,000/-, VIDE CHEQUE N O. 367197 DRAWN ON CC A/C NO. 65041938456 OF THE COMPANY WITH STATE BANK OF PATIALA, FEROZPUR CANTT. APART THEREFROM, A PERUSAL OF THE ORDER PASSED BY THE A.O FORTIFIES THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS. 9. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE UNDER CONSIDERATION, AND FIND THAT OUR INDULGENCE IN THE PRESENT APPEAL HAS BEEN SOUGHT FOR ADJUDICATING AS TO WHETHER IN T HE CASE OF THE ASSESSEE WHERE THE ASSESSMENT PROCEEDINGS HAD NOT A BATED AT THE TIME WHEN THE SEARCH AND SEIZURE PROCEEDINGS WE RE CONDUCTED, ANY ADDITION COULD VALIDLY BE MADE IN TH E ABSENCE OF ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 7 ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH AND SEIZURE PROCEEDINGS. ADMITTEDLY, IN THE CASE BE FORE US NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF THE SEARCH AND SEIZURE PROCEEDINGS CONDUCTED UNDER SECTION 132 OF THE I.T. ACT ON 11.02.2016. APART THEREFROM, THE FACT THAT T HE ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE WERE NOT AB ATED AT THE TIME WHEN THE SEARCH AND SEIZURE PROCEEDINGS WERE C ONDUCTED HAS ALSO NOT BEEN CONTROVERTED BY THE LEARNED D.R I N THE COURSE OF THE PROCEEDINGS BEFORE US. 10. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE UNDE R CONSIDERATION, AND ARE OF THE CONSIDERED VIEW THAT IN A CASE WHERE NO ASSESSMENT PROCEEDINGS ARE PENDING ON THE DATE OF THE SEARCH AND SEIZURE PROCEEDINGS, THE ASSESSMENT UNDE R SECTION 153A CAN BE CARRIED OUT ONLY ON THE BASIS OF SEIZED MATERIAL. IN A CASE, WHERE NO INCRIMINATING MATERIAL IS UNEARTHED DURING THE COURSE OF SEARCH PROCEEDINGS AND THE ASSESSMENT PRO CEEDINGS REMAIN UNABATED AS ON THE SAID DATE, NO ADDITIONS C AN BE VALIDLY MADE IN THE HANDS OF THE ASSESSEE. OUR AFORESAID VI EW IS FORTIFIED BY THE JUDGMENT OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DE L). APART THEREFROM, A SIMILAR VIEW HAD ALSO BEEN TAKEN BY TH E HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. MURLI A GRO PRODUCT (ITA NO. 36/2009) (BOM) AND COMMISSIONER OF INCOME- TAX VS. CONTINENTAL WAREHOUSING CORPORATION (2015) 374 ITR 645 (BOM). IN THE AFOREMENTIONED CASES, IT HAS BEEN OBSERVED B Y THE HIGH COURT THAT AS ON THE DATE OF THE INITIATION OF SEAR CH AND SEIZURE PROCEEDINGS UNDER SECTION 132 OF THE IT ACT, AS NO PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION WERE PENDING, THER EFORE, IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS NO ADDITION/DISALLOW ANCE COULD HAVE BEEN MADE IN RESPECT OF THE UNABATED ASSESSMEN T OF THE ASSESSEE FOR THE SAID YEAR. IN THE BACKDROP OF THE AFORESAID SETTLED POSITION OF THE LAW, WE ARE OF THE CONSIDER ED VIEW THAT AS ON THE DATE OF THE SEARCH AND SEIZURE PROCEEDINGS N O ASSESSMENT PROCEEDINGS WERE PENDING IN THE CASE OF THE ASSESSE E, THEREFORE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL HAVING BEEN FOUND IN THE COURSE OF SUCH PROCEEDINGS NO ADDITION COULD HA VE BEEN VALIDLY MADE IN THE HANDS OF THE ASSESSEE. WE THUS NOT BEING ABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE VIEW TAKEN BY THE CIT(A) WHO HAD UPHELD THE ORDER OF THE A.O, THUS SE T ASIDE HIS ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 8 ORDER AND VACATE THE ADDITION OF RS.1,00,000/- THAT WAS SUSTAINED BY HIM. IT IS A FACT THAT IN THE INSTANT CASE, NO INCRIMINATING MATERIAL HAS BEEN FOUND IN THE COURSE OF SEARCH OPERATIO N U/S 132 OF THE ACT, HOWEVER THE ASSESSING OFFICER RELIED UPON THE INFORMATION RECEIVED FROM 3 RD PARTY AFTER THE DATE OF SEARCH AND ON THE BASIS OF WHICH, MADE THE ADDITIONS UNDER CHALLENG E. THE DECISION RENDERED BY THE CO-ORDINATE BENCH, IS BASED UP ON THE VIEW EXPRESSED BY DELHI HIGH COURT IN THE CASE OF COMMISSI ONER OF INCOME TAX (CENTRAL-III) V. KABUL CHAWLA (2016) 3 80 ITR 573 (DEL) TO THE EFFECT THAT IF ON THE DATE OF SEARCH, THE ASSESSMENTS ALREADY STOOD COMPLETED AND NO INCRIMINATING MATERI AL WAS UNEARTHED DURING THE SEARCH, THEN NO ADDITIONS CAN BE MADE T O THE INCOME ALREADY ASSESSED , WHICH STANDS CONFIRMED BY THE APEX COURT IN PRINCIPAL CIT VS. MEETA GUTGUTIA (2017) 395 ITR 526 (DELHI), WHEREIN THE SLP FILED BEFORE THE APEX COURT WAS DISMISSED VIDE IT S ORDER DATED 2ND JULY, 2018 AND FACTS OF THE INSTANT CASE AND O F THE DECISION REFERRED ABOVE OF CO-ORDINATE BENCH SEEMS TO BE IDENTICAL, HOWEVER AT THIS JUNCTURE, WE ARE NOT GOING INTO THE MERITS OF THE CASE BECAUSE THE ASSESSEE DID NOT GET THE OPPORTUNITIES TO REPRESENT ITS CASE BEFORE THE LD. CIT(A ) AND EVEN THE DECISION RELIED UPON BY THE ASSESSEE WAS NOT AVAI LABLE BEFORE THE LD. CIT(A) THEREFORE THE CONSIDERATION OF THE AFORESAID JUDGMENT LEFT TO THE DECISION OF LD. CIT(A). IT REFL ECTS FROM THE IMPUGNED ORDER THAT THOUGH THE ASSESSEE THROUGH ITS LD. AR INITIALLY APPEARED AND SOUGHT THE ADJOURNMENT HOWEVE R, LATER ON DID NOT APPEAR BEFORE THE LD. CIT(A) AND IN THAT EV ENTUALITY IT WAS OBSERVED BY THE LD. CIT(A) THAT IT IS APPARENT THA T THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEALS AND THEREFORE ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 9 WHILE PROCEEDING EX-PARTE ORDER THE LD. CIT(A) ON TH E BASIS OF ASSESSMENT ORDER, AFFIRMED THE ACTION OF THE ASSESSING OFFICE R AND DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. AR HAS SUBMITTED THAT THE ASSESSEE SOUGHT ADJOURNMENT AT THE INI TIAL STAGE HOWEVER, DID NOT RECEIVE THE NOTICE FOR HEARING ON DATED 29/08/2018 AND SUBSEQUENT DATES THEREAFTER AND THEREFO RE, COULD NOT APPEAR BEFORE THE LD. CIT(A) AND COULD NOT GET THE ADEQUATE OPPORTUNITIES OF BEING HEARD. AT THIS JUNCTU RE, WE ARE NOT INCLINED TO GO INTO THE CONTROVERSY QUA APPEARANCE/ NON- APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A) BUT INT ENTS TO OBSERVE THAT THE ASSESSING OFFICER HAS PASSED AN ORDER U/S 153A R.W.SEC.144 OF THE ACT AND THE LD. CIT(A) HAS ALSO PASSE D THE IMPUGNED ORDER AS EX-PARTE, WHERE THE ASSESSEE REMAINED UN- HEARD DUE TO THE REASONS STATED ABOVE, HENCE, CONSIDERIN G THE PECULIAR FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO GIVE TH E OPPORTUNITIES TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE LD. CIT(A) AND TO DIRECT THE LD. CIT(A) TO DECIDE THE APP EALS AFRESH, SUFFICE TO SAY WHILE AFFORDING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE AND WHILE CONSIDERING THE OBSERVATI ONS MADE ABOVE, IN ADDITION TO ANY OTHER CONSIDERATIONS AS PER WISDOM OF THE LD. CIT(A). 6. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.07.2019. SD/- SD/- ( VIKRAM SINGH YADAV ) (N.K.CHOUDHRY) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED: 22.07.2019 /PK/ PS. ITA NOS.143 & 145/ASR/2019 (A.Y.2011-12 & 2010-11) M/S. BHAGWATI L ACTO VEGETARIAN EXPORTS PVT. LTD. VS. DY. CIT 10 COPY OF THE ORDER FORWARDED TO: (1) M/S. BHAGWATI LACTO VEGETARIAN EXPORTS PVT. LTD . SHOP NO.18-1/2, ANAJ MANDI, FEROZEPUR CANTT (2) THE DY. CIT, CENTRAL CIRCLE-1, JALANDHAR (3) THE CIT(A)-5, LUDHIANA (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER