DCIT CEN CIR 2(3), MUMBAI V. ALLIANCE MALL DEVELOPERS CO. P.LTD, MUMBAI

ITA 1538/MUM/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101271 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH
• Keywords: Search and seizure; Loose papers; Documents seized; Revenue expenditure
• Section: 143(3); 153A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' SMC ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT ITA NO. 1307/MUM/2015 (ASSESSMENT YEAR: 2011 - 12 ) M/S. ALLIANCE MALL DEVELOPERS VS. ACIT, CENTRAL CIRCLE - 13 CO. P. LTD. 105/106, PROVOGUES HOUSE OFF NEW LINK ROAD, ANDHERI (W) MUMBAI 400053 OLD CGO ANNEX BUILDING M.K. ROAD , MUMBAI 400020 PAN - AAGCA5970N APPELLANT RESPONDENT ITA NO. 1 538 /MUM/2015 (ASSESSMENT YEAR: 2011 - 12 ) DCIT, CENTRAL CIRCLE - 2( 3 ) VS. M/S. ALLIANCE MALL DEVELOPERS ROOM NO. 803, 8 TH FLOOR OLD CGO ANNEX BUILDING M.K. ROAD , MUMBAI 400020 CO. P. LTD. 105/106, PROVOGUES HOUSE OFF NEW LINK ROAD, ANDHERI (W) MUMBAI 400053 PAN - AAGCA5970N APPELLANT RESPONDENT ASSESSEE BY: SHRI RUSHABH MEHTA REVENUE BY: SHRI B. PRUSETH. CIT - DR DATE OF HEARING: 07.10. 2015 DATE OF PRONOUNCEMENT: 12 . 10 .2015 O R D E R PER D. MANMOHAN, V.P. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER PASSED BY CIT(A) 48, MUMBAI AND THEY PERTAIN TO A.Y. 2011 - 12. 2. THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER: - (I) WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE OF RS.16,05,200/ - ON ACCOUNT OF ADMINISTRATIVE & OTHER OVERHEADS WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD NOT COMMENCED ITS BUSINESS AS CONSTRUCTION OF MALL ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 2 WAS NOT STARTED UPTO A.Y. 2012 - 13, THEREFORE, THE EXPENDITURE INCURRED BY IT SHOULD HAVE BEEN CAPITALIZED UNDER THE HEAD CAPITAL WORK - I N - PROGRESS AS AGAINST REVENUE EXPENDITURE CLAIMED BY THE ASSESSEE? ASSESSEE, ON THE OTHER HAND, CHALLENGED THE JURISDICTION OF THE AO IN PASSING AN ORDER UNDER SECTION 143(3) R.W.S. 153C OF THE ACT AND ALSO CONTESTED CERTAIN OTHER ADDITIONS SUCH AS DISAL LOWANCE MADE UNDER RULE 8D, ETC. SINCE THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGED THE ACTION OF THE AO IN PASSING THE ORDER UNDER SECTION 143(3) R.W.S. 153C OF THE ACT, BOTH THE PARTIES AGREED THAT THE PRELIMINARY ISSUE HAS TO BE DECIDED FIRS T AND IN THE EVENT OF FINDING JUSTIFICATION IN ISSUING NOTICE UNDER SECTION 153C OF THE ACT THE OTHER ISSUES CAN BE TAKEN UP FOR CONSIDERATION. ACCORDINGLY I PROCEED TO DISPOSE OF THE APPEALS FILED BY THE ASSESSEE AS WELL AS THE DEPARTMENT . 3. S EARCH AND SEI ZURE ACTION WAS CARRIED OUT ON 20.01.2012 AT THE OFFICE OF PROVOGUE (INDIA) LTD. AND RESIDENCE OF THE DIRECTORS AND IT WAS CONCLUDED ON 17.03.2012. PRIOR TO THE SEARCH ACTION ASSESSEE FILED ITS REGULAR RETURN ON 03.09.2011 DECLARING TOTAL LOSS OF ` 10,62,07 1/ - . NO NOTICE WAS ISSUED UNDER SECTION 143(2) OF THE ACT FOR TAKING UP THE MATTER FOR SCRUTINY AND THUS THE RETURN F IL ED BY THE ASSESSEE IS DEEMED TO HAVE BEEN PROCESSED UNDER SECTION 143(1) OF THE ACT. 4. DURING THE COURSE OF SEARCH, LOOSE PAPERS WITH SERIA L NOS. 9 TO 32 HAVE BEEN FOUND AND SEIZED, WHICH ARE TRIAL BALANCES OF THE FOLLOWING THREE COMPANIES: - I. ALLIANCE MALL DEVELOPER CO. PVT. LTD. II. HAGWOOD COMMERCIAL DEVELOPERS P. LTD. III. EMPIRE MALL PVT. LTD. SINCE THE DOCUMENTS BELONGING TO THE ASSESSEE - COMPANY HAVE BEEN SEIZED IN THE SEARCH ACTION, SATISFACTION NOTE FOR INITIATING PROCEEDINGS UNDER SECTION 153C HAS BEEN RECORDED AND NOTICE UNDER SECTION 153A ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 3 R.W.S. 153C WAS ISSUED ON 13.08.2013 IN RESPONSE TO WHICH ASSESSEE DECLARED TOTAL LOSS OF ` 10,62,071/ - , AS WAS DECLARED IN THE ORIGINAL RETURN OF INCOME. SUBSEQUENTLY NOTICE UNDER SECTION 143(2) WAS ISSUE D AND THEREAFTER THE AO COMPLETED THE ASSESSMENT ON A TOTAL INCOME OF ` 5,43,130/ - WHEREIN HE HAS DISALLOWED A SUM OF ` 16,05,200/ - REFERABLE TO EXPENDITURE D EBITED BY THE ASSESSEE IN THE PR OFIT & LOSS ACCOUNT; ACCORDING TO THE AO THE EXPENDITURE OUGHT TO HAVE BEEN SHOWN AS CAPITAL WORK - IN - PROGRESS, SINCE IT CANNOT BE ALLOWED A S REVENUE EXPENDITURE. 5. AGGRIEVED, ASSESSEE CONTENDED BEFORE THE CIT(A) THAT THE PROC EEDINGS UNDER SECTION 143(3) R.W.S. 153C ARE BAD IN LAW. IT WAS ALSO CONTENDED THAT THE DISALLOWANCE OF ADMINISTRATIVE AND OTHER OVERHEADS EXPENSES IS NOT IN ACCORDANCE WITH LAW. 6. THE MAIN PLEA OF THE ASSESSEE WAS THAT FOR THE YEAR UNDER CONSIDERATION THE R ETURN FILED BY THE ASSESSEE HAVING BEEN DEEMED TO BE PROCESSED UNDER SECTION 143(1) OF THE ACT, IN THE ABSENCE OF ANY NOTICE ISSUED UNDER SECTION 148 OF THE ACT IT ATTAINED FINALITY. IN OTHER WORDS, NO ASSESSMENT OR REASSESSMENT WAS PENDING ON THE DATE OF INITIATION OF SEARCH. IN SUCH AN EVEN T AN ASSESSMENT CAN BE MADE ONLY IF INCRIMINATING DOCUMENTS, ETC. ARE FOUND. IN THE INSTANT CASE NO INCRIMINATING MATERIAL WAS FOUND WHICH WAS THE BASIS FOR INITIATING PROCEEDINGS UNDER SECTION 153C OF THE ACT AND THUS THE NOTICE ISSUE UNDER SECTION 153C AND THE ASSESSMENT MADE THEREON ARE BAD IN LAW. THE LEARNED CIT(A) EXTRACTED THE ARGUMENTS ADVANCED BY THE ASSESSEE BEFORE HIM (VIDE LETTERS DATED 01.07.2014 AND 06.09.2014) . THE BRIEF SUBMISSION OF THE ASSESSEE WAS THAT UNDER SECTION 153A OF THE ACT THE AO IS SUPPOSED TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN RESPECT OF THE RELEVANT SIX ASSESSMENT YEARS. BY VIRTUE OF THE SECOND PROVISO ANY PENDING ASSESSMENT OR REASSESSMENT ON THE DATE OF INITIATION OF SEARCH OR M AKING A REQUISITION UNDER SECTION 153A SHALL ABATE. THE EFFECT OF ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 4 SECOND PROVISO IS THAT ANY PENDING ASSESSMENT OR REASSESSMENT WILL ABATE. FRESH DETERMINATION OF TOTAL INCOME WOULD BE REQUIRED ONLY WHEN THERE IS INCRIMINATING MATERIAL. THE CASE LAW RELIED UPON BY THE AO, I.E. SHRI ANIL KUMAR BHATIA ( 352 ITR 493) WAS DISTINGUISHED ON THE GROUND THAT IT WAS EXAMINED BY THE SPECIAL BENCH OF ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. IT WAS CONTENDED THAT NO ADDITION CAN BE MADE UNLESS THERE IS ANY IN CRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH FOR EACH YEAR . 7. THE LEARNED CIT(A) HELD THAT IN THE LIGHT OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA IT IS MANDATORY ON THE PART OF THE AO TO INITIATE PROCEEDINGS UNDER SECTION 153A OF THE ACT, CONSEQUENT TO SEARCH AND SEIZURE ACTION. HE ALSO OBSERVED THAT IN THIS CASE RETURN OF INCOME WAS FILED ON 03.09.2011 AND HENCE THE TIME LIMIT FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) WOULD BE EXPIRING AFTER THE DATE OF SEARCH. HE ALSO ADMITTED THAT IT IS NOT CLEAR AS TO WHETHER ANY NOTICE UNDER SECTION 143(2) WAS ISSUED WHICH GOT ABATED. IN HIS OPINION THERE IS NO PURPOSE IN MAKING TWO ASSESSMENTS IN THE SAME ASSESSMENT YEAR , O NC E A NOTICE IS ISSUED UNDER SECTION 153C OF THE ACT . HE ALSO ADMITTED THAT THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH BUT , ACCORDING TO HIM , PROCESSING OF RETURN UNDER SECTION 143(1) IS MERELY A CHECK ON ACCURACY OF COMPUTATION AND CALCULATION OF TAXES, ETC. AND SOON AFTER SEARCH IT IS MAND ATORY ON THE PART OF THE AO TO ISSUE NOTICE UNDER SECTION 153C OF THE ACT. 8. HE THUS , IN PRINCIPLE, UPHELD THE ACTION OF THE AO , THOUGH HE GRANTED SUBSTANTIAL RELIEF ON MERITS BY HOLDING THAT THE DISALLOWANCE O F ` 1,61,497/ - , REFERABLE TO ADMINISTRATIVE AND O THER OVERHEADS , ARE ALLOWABLE AS REVENUE EXPENDITURE. 9. AGGRIEVED, BOTH REVENUE AND ASSESSEE PREFERRED APPEALS BEFORE THE TRIBUNAL. THE LEARNED CIT - DR FILED DETAILED WRITTEN SUBMISSION S WHEREIN IT WAS CONTENDED THAT THE CASE OF THE ASSESSEE ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 5 WAS CENTRALISED BY THE ORDER DATED 09.10.2012 BUT PRIOR TO THIS THE INCOME TAX OFFICER - 8(1)(1) , HAVING ERSTWHILE JURISDICTION OVER THE CASE , HAD ISSUED A NOTICE UNDER SECTION 143(2) OF THE ACT WHICH WAS SERVED UPON THE ASSESSEE ON 28.09.2012. FURTHER, THE TIME LIMIT FOR C OMPLETION OF THE ASSESSMENT WAS 31.03.2014. PROCEEDINGS UNDER SECTION 153C WERE INITIATED ON 13.08.2013. PRESUMING THAT THE DATE OF HANDING OVER THE SEIZED MATERIAL IS PRIOR TO ISSUANCE OF NOTICE UNDER SECTION 153C, ASSESSMENT WAS VERY MUCH PENDING ON THAT DATE AND THEREFORE THE AO WAS JUSTIFIED IN PASSING AN ORDER UNDER SECTION 153C R.W.S. 143(3) OF THE ACT. IT WAS THUS CONTENDED THAT THE ASSESSMENT DID NOT ABATE AND HENCE PROCEEDINGS UNDER SECTION 153C OF THE ACT CAN BE INITIATED EVEN IF THERE IS NO INCRI MINATING MATERIAL. 10. IN HIS OPINION THE DECISION OF THE ITAT THIRD MEMBER IN THE CASE OF ROYAL CARTONS PVT. LTD. AS WELL AS THE COORDINATE BENCH DECISION IN THE CASE OF HAGWOOD COMMERCIAL DEVELOPERS PVT. LTD. (ITA NO. 1305/MUM/2015 DATED 22.05.2015) ARE DIS TINGUISHABLE ON FACT S, WHEREAS THE DECISION OF THE HON'BLE KERALA HIGH COURT IN THE CASE OF DR. K.M. MEHABOOB VS. DICT 26 TAXMANN.COM 54 HAS DIRECT BEARING ON THE ISSUE ON HAND. ACCORDING TO HIM THERE IS NO NEED TO EXAMINE WHETHER EVIDENCE/ MATERIAL SEIZED REPRESENTS UNDISCLOSED INCOME OF ANOTHER PERSON; ALL THAT IS REQUIRE D IS TO CONSIDER WHETHER SUCH MATERIAL RELATE S TO ANOTHER ASSESSEE OR NOT. HE ALSO RELIED UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SSP AVIATION LTD. VS. CIT 20 TAX MAN.COM 214 WHEREIN IT WAS HELD THAT THE SATISFACTION THAT IS REQUIRED TO BE REACHED BY THE AO HAVING JURISDICTION OVER THE SEARCHED PERSON IS THAT THE VALUABLE ARTICLES S E IZED DURING THE SEARCH BELONG TO A PERSON OTHER THAN THE SEARCHED PERSON. THERE IS N O REQUIREMENT , UNDER SECTION 153C OF THE ACT , THAT THE AO SHOULD ALSO BE SATISFIED THAT SUCH VALUABLE ARTICLES OR DOCUMENTS BELONG TO THE OTHER PERSON AND IT REFLECTS ANY UNDISCLOSED INCOME. ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 6 11. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AN ASSESSMENT COMPLETED CAN BE REOPENED BY THE AO ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH PROCEEDINGS. IN THE INSTANT CASE THE AO HAVING J URISDICTION OVER THE OTHER PERSONS ACTED MECHANICALLY , WITHOUT ANY VERIFICATION OF FACTS , AND AS SUCH THE PROCESS IS NOT IN ACCORDANCE WITH LAW BECAUSE THE HON'BLE DELHI HIGH COURT AS WELL AS THE HON'BLE KERALA HIGH COURT WERE CONCERNED WITH THE REQUIREMENT OF THE AO WHO HAD TO MERELY TRANSFER THE CASE TO THE AO HAVING JURISDICTION OVER THE TH IRD PERSON AND THOSE DECISIONS ARE NOT RENDERED IN THE CONTEXT OF THE POWERS OF THE AO WHO HAD TO DIRECTLY DEAL WITH THIRD PARTY. HE ALSO SUBMITTED THAT IDENTICAL ISSUE WAS CONSIDERED BY THE ITAT SMC BENCH, MUMBAI IN THE CASE OF EMPIRE MALL PVT. LTD. , WHER EIN , MORE OR LESS UNDER IDENTICAL CIRCUMSTANCES , THE BENCH AGREED THAT INITIATION OF PROCEEDINGS UNDER SECTION 153C ARE BAD IN LAW. HE ALSO REFERRED TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SSP AVIATION LTD. 346 ITR 177 (DEL) TO SUBMI T THAT THE DECISION WAS RENDERED IN THE CONTEXT OF THE POWERS OF THE AO WHO WAS REQUIRED TO HAND OVER THE FILE TO THE AO WHO HAS JURISDICTION OVER THE THIRD PARTY BUT EVEN IN THAT CONTEXT THE COURT OBSERVED THAT IN THE CASE OF THE OTHER PERSON THE QUESTION OF PENDENCY OR ABATEMENT OF ASSESSMENT OR REASSESSMENT WILL BE EXAMINED WITH REFERENCE TO THE DATE ON WHICH THE BOOKS ACCOUNTS OR DOCUMENTS SEIZED AND REQUISITIONED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. HE ALSO REFERRED TO PARAS 14 TO 18 O F THE SAID JUDGEMENT TO SUBMIT THAT VALIDITY OF SEIZURE HAS TO BE EXAMINED INDEPENDENTLY WHILE INITIATING PROCEEDING S UNDER SECTION 153C OF THE ACT. T HERE IS NO REQUIREMENT UNDER SECTION 153C OF THE ACT THAT THE AO SHOULD ALSO BE SATISFIED THAT SUCH VALUAB LE ARTICLES OR BOOKS, ETC. , BELONGING TO OTHER PERSON , REFLECT UNDISCLOSED INCOME OF THE THIRD PARTY BECAUSE UNDER SECTION 153C IT ENABLES THE REVENUE AUTHORITIES TO INVESTIGATE THE CONTENTS OF THE DOCUMENTS SEIZED WHICH BELONGS ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 7 TO A PERSON OTHER THAN SEAR CHED SO AS TO ENSURE THAT INCOME DOES NOT ESCAPE ASSESSMENT IN THE HANDS OF ANY OTHER PERSON MERELY BECAUSE HE HAS NOT BEEN SEARCH ED . IT IS ONLY A FIRST STEP OF THE ENQUIRY. THE AO WHO HAS REACHED THE SATISFACTION THAT THE DOCUMENT RELATE S TO A PERSON OTHE R THAN THE SEARCHED PERSON CAN DO NOTHING EXCEPT TO FORWAR D THE DOCUMENT TO THE AO HAVING JURISDICTION OVER THE OTHER PERSON AND THEREAFTER IT IS FOR THE AO HAVING JURISDICTION OVER THE OTHER PERSON TO FOLLOW PROCEDURE PRESCRIBED IN AN ATTEMPT TO ENSURE TH AT INCOME REFLECTED IN THE DOCUMENT HAS BEEN ACCOUNTED FOR BY SUCH OTHER PERSON. IF HE IS SO SATISFIED AFTER OBTAINING THE RETURNS FROM SUCH OTHER PERSON FOR THE SIX ASSESSMENT YEARS , THE PROCEEDINGS WILL HAVE TO BE CLOSED . THE LEARNED COUNSEL HIGHLIGHTS T HIS PORTION OF THE JUDGEMENT TO SUBMIT THAT EVEN AFTER INITIATING PROCEEDINGS IF THERE IS NO INCRIMINATING MATERIAL FOR A PARTICULAR YEAR THE ASSESSMENT HAS TO BE CLOSED AND THE AO CANNOT PROCEED UNDER SECTION 153C OF THE ACT. THUS, LOOKING AT FROM ANY ANG LE THE PROCEEDINGS UNDER SECTION 153C OF THE ACT, IN THE PECULIAR FACTS OF THE CASE, ARE NOT VALIDLY INITIATED AND THE ADDITIONS ARE NOT IN ACCORDANCE WITH LAW IN THE LIGHT OF THE FACT THAT THERE IS NO INCRIMINATING MATERIAL EVEN DURING THE COURSE OF SEARC H, A FACT WHICH IS NOT DISPUTED BY TAX AUTHORITIES. HE MAINLY RELIED UPON THE FOLLOWING ORDERS OF THE THIRD MEMBER OF ITAT TO SUBMIT THAT THE AMENDMENTS TO PROVISIONS OF SECTION 153C OF THE ACT ARE CLARIFICATORY IN NATURE AND THEREFORE APPLICABLE RETROSPEC TIVELY AND HENCE IN ORDER TO INITIATE PROCEEDINGS UNDER SECTION 153C OF THE ACT FOR EACH YEAR THE AO SHOULD HAVE , IN HIS POSSESSION , INCRIMINATING MATERIAL CONCERNING THIRD PARTY: - I) TRISHUL HI - TECH INDUSTRIES VS. DCIT (2014 - TIOL - 862 - ITAT - KOL) II) DCIT VS. ROYAL CARTONS PVT. LTD. (ITA 472/COCH/2013 ) ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 8 IT WAS SUBM ITTED THAT IN THE INSTANT CASE NO INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF THE ASSESSMENT YEARS UNDER CONSIDERATION AND IN FACT NO ADDITION WAS MADE BASED ON THE SO CALLED INCRIMINATING MATERIAL. THUS INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT AND THE ASSESSMENTS FOR THE YEARS UNDER CONSIDERATION ARE BAD IN LAW IN THE LIGHT OF THE BINDING DECISIONS OF THE THIRD MEMBER OF ITAT. 12. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE RETURN OF INCOME HAVING BEEN FILED IN 2011 , PROCEEDINGS HAVE REACHED FINALITY BY 2013 ON WHICH DATE THE OFFICE R, TO WHOM THE MATTERS WERE TRANSFERRED , HAD NOT INITIATED PROCEEDINGS AND THUS THE ASSESSMENT CAN BE SAID TO HAVE ATTAINED FINALITY. EVEN OTHERWISE IT IS NOT IN DISPUTE THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH IN RESPECT OF THE ASSESSEE HEREIN AND IN FACT NO ADDITION WAS MADE BY AO ON THE STRENGTH OF THE DOCUMENTS SEIZED, IN THIS ASSESSMENT YEAR. UNDER IDEN TICAL CIRCUMSTANCES THE ITAT SMC BENCH - IN THE CASE OF EMPIRE MALL LTD. ( ITA NOS. 1541 & 1543/MUM/2015 ) AND ALSO IN THE CASE OF HAGWOOD COMMERCIAL DEVELOPERS PVT. LTD. (ITA NO. 1305/MUM/2015 DATED 22.04.2015 WHEREIN ADDITION MADE ON THE BASIS OF THE TRIAL BALANCES FOUND DURING THE COURSE OF SEARCH IN THE PREMISES OF PROVOGUE (INDIA) LTD. ) - HELD THAT THE PROCEEDINGS INITIATED UNDER SECTION 153C ARE NOT VALID AND THEREFORE THE ASSESSMENT S MADE THEREON WERE QUASHED . CONSISTENT WITH TH E VIEW TAKEN BY THE ITAT IN THE AFORECITED CASES I HOLD THAT THE PROCEEDINGS INITIATED UNDER SECTION 153C AND THE ASSESSMENT MADE IN THE INSTANT CASE IS ALSO NOT VALID IN AS MUCH AS THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH , PERT AINING TO A.Y. 2011 - 12 . SINCE THE NOTICE ISSUED UNDE R SECTION 153C IS HELD TO BE IN VALID, THE ASSESSMENT MADE THEREON HAS NO LEGS TO STAND AND THEREFORE IT IS NOT NECESSARY TO DEAL WITH OTHER DISALLOWANCE S . ITA NO S. 1307 & 1538/ MUM/2015 M/S. ALLIANCE MALL DEVELOPERS CO. P. LTD. 9 13. IN THE RESULT, THE APPEAL FILE BY THE ASSESSEE I S TREATED AS ALLOWED WHEREAS THE APPEAL FILED BY THE REVENUE IS DISMISSED ON THE GROUND THAT IT IS OF ACADEMIC IMPORTANCE. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER , 2015. SD/ - (D. MANMOHAN) VICE PRESIDENT MUMBAI, DATED: 12 TH OCTOBER , 2015 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 48 , MUMBAI 4. THE CIT, CENTRAL - 1 , MUMBAI CITY 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI