Mr. Raj Kumar Chawla, Delhi V. ACIT, New Delhi

ITA 1682/DEL/2013

• Counselvise Citation: 168220114 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 18-11-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MB
• Assessee Lawyers: MRS RANO JAIN CAS
• Keywords: Depreciation; Search and seizure; Validity of assessment; Accommodation entries; Documents seized; Unabsorbed depreciation
• Section: 143(3); 133A; 153A; 115JB; 32; 54; 263; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI N.K. SAINI AND SHRI I.C. SUDHIR ITA NO. 1682 /DEL/201 3 ASSESSMENT YEAR: 2004 - 05 ITA NO. 5087/DEL/2012 ASSESSMENT YEAR : 2007 - 08 ITA NO. 1698/DEL/2013 A SSESSMENT YEAR : 2008 - 09 ITA NO. 1683/DEL/2013 ASSESSMENT YEAR : 2009 - 10 RAJ KUMAR CHAWLA, VS. ASSISTANT CIT, A - 7, NIRMAN VIHAR, CENTRAL CIRCLE09, DELHI. NEW DELHI. (PAN: AA L P C1209 ) (APPELLANT) (RESPONDENT) APPE LLANT BY: SH. VED JAIN & MRS. RANO JAIN, CAS RESPONDENT BY: SHRI MB, CIT(DR) ORDER PER I.C. SUDHIR : JUDICIAL MEMBER IN ALL THESE APPEALS, THE ASSESSEE HAS QUESTI ONED VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE INCOME - TAX ACT, 1961 ON THE BASIS OF VARIOUS REASONS IN GROUND NOS. 1 TO 8. ONE OF THE REASONS QUESTIONING THE VALIDITY OF THE SAID ASSESSMENT RAISED IN GROUND NO. 6 IS THE ABS ENCE OF ANY INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE BEING FOUND DURING THE COURSE OF SEARCH. THIS ISSUE HAS ALSO BEEN RAISED IN GROUND NO. 10 MORE ELABORATELY CONTAINING TWO PARTS. FIRSTLY , ON THE REASON THAT REVIEWING OF ASSESSMENT PROCEEDINGS F OR THE YEAR UNDER CONSIDERATION WITHOUT THERE BEING ANY ADVERSE MATERIAL ON RECORD IS BAD IN LAW AND SECONDLY NO INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE WAS FOUND DURING THE COURSE 2 OF SEARCH. EXCEPT THIS REASON RAISED IN GROUND NO.10 QUESTIONING T HE VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE ACT, THE ASSESSEE HAS NOT PRESSED THE VALIDITY OF THE SAID ASSESSMENT ON THE BASIS OF OTHER REASONS QUESTIONED IN GROUND NOS. 1 TO 8 (EXCEPT GROUND NO.6). THESE GROUND ARE ACCORD INGLY REJECTED AS NOT PRESSED. 2. IN THE ASSESSMENT YEAR 2007 - 08, BESIDES THE ABOVE , VALIDITY OF NOTICE ISSUED UNDER SEC. 153A OF THE ACT HAS ALSO BEEN QUESTIONED AS TIME BARRED IN GROUND NO.9, WHICH HAS ALSO NOT BEEN PRESSED. THE SAME IS ACCORDINGLY RE JECTED AS NOT PRESSED. 3. IN THE ASSESSMENT YEAR 2007 - 08 THE VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(2) OF THE INCOME - TAX ACT, 1961 WITHOUT ISSUANCE OF VALID NOTICE UNDER SEC. 143(2) HAS ALSO BEEN QUESTIONED IN GROUND NO. 10 WHIC H HAS NOT BEEN PRESSED. THE SAME IS ACCORDINGLY REJECTED AS NOT PRESSED. 4. THE OTHER COMMON ISSUE IN ALL THE ASSESSMENT YEARS RAISED IN GROUND NO. 9 EXCEPT ASSESSMENT YEAR 2007 - 08 WHEREIN THIS ISSUE HAS BEEN RAISED IN GROUND NO.11 IS REGARDING VALIDITY OF ADDITION ON ACCOUNT OF INCOME FROM 3 SOME HOUSE PROPERTY AS THE SAME HAS BEEN WRONGLY MADE IGNORING THE PROVISIONS OF S E C . 23(1)(A) READ WITH SEC. 23(4) OF THE INCOME - TAX ACT, 1961. IN THE ASSESSMENT YEAR 2009 - 10, ONE MORE ISSUE HAS BEEN RAISED IN GROUN D NO.10 I.E. THE ACTION OF THE LEARNED CIT(APPEALS) IN CONFIRMING THE FINDING OF THE ASSESSING OFFICER IN RESTRICTING THE EXEMPTION CLAIMED UNDER SEC. 54 OF THE INCOME - TAX ACT, 1961 AT RS.10,16,700 AS AGAINST RS.28,81,000 CLAIMED BY THE ASSESSEE. 5. SINC E THE ISSUE S RAISED ON THE VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE ACT ON THE BASIS THAT THERE WAS NO ASSESSMENT PENDING BASED ON THE ORIGINAL RETURN OF INCOME FILED AS ON THE DATE OF SEARCH AND NO INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE WAS FOUND DURING THE COURSE OF SEARCH, GOES TO THE ROOT OF THE MATTER, WE PREFER RED ADJUDICATION THEREOF FIRST. 6. THE BRIEF FACTS ARE THAT SEARCH AND SEIZURE OPERATION UNDER SEC. 132 OF THE ACT ALONG WITH SURVEY OPERATION UNDER SEC. 133A OF THE ACT WERE UNDERTAKEN AT VARIOUS RESIDENTIAL AND BUSINESS PREMISES OF ASEEM KUMAR GUPTA & GROUP AND OTHER BENEFICIARIES GROUP OF CASES ON 26.3.2010. IT WAS ALLEGED THAT SHRI A.K. GUPTA WAS PROVIDING ACCOMMODATION ENTRIES TO SEVERAL BENEFICI ARIES WITH THE HELP OF SEVERAL BANK ACCOUNTS OPEN IN THE 4 NAME OF SEVERAL PROPRIETARY CONCERNS AND COMPANIES IN WHICH EITHER HE HIMSELF OR HIS EMPLOYEES WERE DIRECTORS OR PROPRIETORS. THE SEARCH AND SURVEY COVER ED THE PREMISES OF SHRI A.K. GUPTA, SEVERAL AS SOCIATES/EMPLOYEES OF SHRI A.K. GUPTA, SEVERAL INTERMEDIATORY COMPANIES AND SOME BENEFICIARIES INCLUDING THAT OF THE ASSESSEE. NOTICE UNDER SEC. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING THE SAME I NCOME AS SHOWN IN ITS ORIGINAL RETURN OF INCOME FILED UNDER SEC. 139 OF THE ACT. THE ASSESSING OFFICER THEREAFTER BEING NOT SATISFIED WITH THE EXPLANTING OF THE ASSESSEE MADE ADDITION ON ACCOUNT OF INCOME FROM SOME HOUSE PROPERTIES OWNED BY THE ASSESSEE RE JECTING THE CONTENTIONS OF THE ASSESSEE THAT THE PROVISIONS OF SEC. 23(1)(A) READ WITH SEC. 23(4) OF THE ACT ARE APPLICABLE . BESIDES THIS ADDITION, ONE MORE ADDITION HAS BEEN MADE IN THE ASSESSMENT YEAR 2009 - 10 BY RESTRICTING THE EXEMPTION CLAIMED UNDER SE C. 54 OF THE ACT AT RS.16,16,700 AS AGAINST RS.28,81,0 00 CLAIMED BY THE ASSESSEE. THESE ACTION S OF THE ASSESSING OFFICER W ERE QUESTIONED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) BUT THE ASSESSEE COULD NOT SUCCEED. THE ASSESSEE HAD ALSO RAISED THE VA LIDITY OF ASSESSMENT FRAMED UNDER SEC. 153 READ WITH SEC. 143(3) OF THE ACT BESIDES OTHERS ON THE BASIS THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND ORIGINAL ASSESSMENT PROCEEDINGS WERE COMPLETED ON THE 5 DATE OF SEARCH. THE LEARNED CIT(APPEALS) DID NOT CONCUR WITH THIS CONTENTION OF THE ASSESSEE AND REJECTED THE GROUND RAISED BY THE ASSESSEE IN THIS REGARD BEFORE HIM. 7. IN SUPPORT OF THE ISSUE REGARDING VALIDITY OF THE ASSESSMENT IN QUESTION, THE LEARNED AR REITERATED TH E CONTENTIONS OF THE ASSESSEE MADE IN THIS REGARD BEFORE THE LEARNED CIT(APPEALS) THAT MERELY BECAUSE A SEARCH HAS BEEN CARRIED OUT UNDER SEC. 132, A NOTICE UNDER SEC. 153A FOR REASSESSMENT OF INCOME CANNOT BE ISSUED IN ABSENCE OF INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH AND WHEN NO ORIGINAL ASSESSMENT PROCEEDINGS IS PENDING ON THE DATE OF SEARCH. THE LEARNED AR ASSERTED THAT NO INCRIMINATING MATERIAL WAS FOUND RELATING TO THE ASSESSEE DURING THE COURSE OF SEARCH OF HIS PREMISES AND THE RETU RN OF INCOME ORIGINALLY FILED UNDER SEC. 139 OF THE ACT WAS PROCESSED UNDER SEC. 143(1) AND NO STATUTORY NOTICE UNDER SEC. 143(2) OF THE ACT WAS ISSUED WITHIN THE PRESCRIBED TIME LIMIT. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT: I) AL - CARGO GLOBAL LOGESTIC LTD. VS. ACIT 137 ITD 287 (MUM.) - (S.B); II) DCIT VS. DEVI DAYAL PETRO - CHEMICAL PVT. LTD. ITA NOS. 5430 TO 5436/DEL/2013, C.O. NOS. 83 TO 88/DEL/14 DATED 10.9.2014 ; 6 III) SSP AVIATION LTD. VS. DCIT 346 ITR 177; IV) KUSUM GUPTA VS. DCIT ITA NO. 4873/DEL/2009 DT. 28.3.2013; V ) ACIT VS. ASHA KATARIA ITA NO. 3105/DEL/2011 DATED 20.5.2013; VI) SANJAY AGGARWAL VS. DCIT ITA NO. 3184/DEL/2013 DT. 16.2.2014; VII) JAI STEEL INDIA VS. ACIT 259 CTR 281 (RAJ.); & VIII) CIT VS. ANIL KUMAR BH ATIA 352 ITR 493 (DEL.). 8. LEARNED DR ON THE OTHER HAND SUBMITTED THAT THERE IS NO NEED OF FINDING OF INCRIMINATING MATERIAL DURING THE COURSE OF SEARCH TO JUSTIFY THE VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE INCOME - TAX ACT, 1961 AND THE ONLY REQUIREMENT IS THAT SEARCH HAS BEEN CONDUCTED AT THE PREMISES OF THE ASSESSEE UNDER SEC. 132 OF THE ACT. IN SUPPORT, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) CIT VS. FILA TEX INDIA LTD. ITA NO. 269/2014 DATED 14.7.2014 (DEL.); II) CANARA HOUSING DEVELOPMENT CO. VS. DCIT ITA NO. 38/2014 DATED 25.7.2014 (KARNATAKA). 7 9. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE LEARNED CIT(APPEALS) HAS REJECTED THE CONTENTIONS OF THE ASSESSEE ON THE ISSUE OF VALIDITY OF ASSESSMENT FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE INCOME - TAX ACT, 1961 IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND IN THE ABSENCE OF THE PENDENCY OF THE ASSESSMENT AS ON THE DATE OF SEARCH ON THE BASIS THAT FOR FRAMING ASSESSMENT UNDER SEC. 153A, NO SUCH REQUIREMENT IS THERE AND THE ONLY REQUIREMENT IS THAT SEARCH HAS BEEN CONDUCTED UNDER SEC. 132 OF THE ACT. 10. HAVING GONE THROUGH T HE DECISIONS CITED BY THE LEARNED AR INCLUDING THE DECISION OF SPECIAL BENCH OF THE ITAT IN THE CASE OF AL CARGO GLOBAL LOGESTIC LTD. VS. CIT (SUPRA), WE FIND THAT THE RATIO LAID DOWN THEREIN, SUPPORTS THE CONTENTIONS OF THE ASSESSEE ON THE ISSUE. 58. THUS, QUESTION NO. 1 BEFORE US IS ANSWERED AS UNDER : - (A) I N ASSESSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEAR SEPARATELY : (B) IN OTHER CASES, IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS (I) BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE CO URSE OF ORIGINAL 8 ASSESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 11. THE ISSUE RAISED BEFORE THE SPECIAL B ENCH WAS AS TO WHETHER SCOPE OF ASSESSMENT U/S 153A ENCOMPASSES ADDITIONS NOT BASED ON ANY INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH? 12. IN THE CASE OF KUSUM GUPTA (SUPRA) ALSO THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) HAD EXPIRED ON THE DATE OF SEARCH AND IT WAS HELD THAT NO ASSESSMENT WAS PENDING IN THAT CASE AND THUS THERE WAS NO QUESTION OF ABATEMENT OF ASSESSMENT. THEREFORE , THE ADDITION IN THE ASSESSMENT U/S 153A WOULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. THE DELHI BENCH OF THE TRIBUNAL IN ITS REC ENT DECISION ON THE ISSUE IN THE CASE OF SHRI KABUL CHAWLA (SUPRA) AND OTHERS VIDE ORDER DATED 23.5.2014 HAS EXPRESSED THE SIMILAR VIEW. IT HAS ALSO DISCUSSED THE DECISION OF HON BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA (2012) 211 TAXMANN 453 ( DEL .), WHILE DECIDING THE ISSUE. THE RELEVANT PARA NO. 8 & 9 IN THIS REGARD IS BEING REPRODUCED AS UNDER : - 9 8. WE ARE UNABLE TO ACCEPT THE CONTENTION ADVANCED ON BEHALF OF THE REVENUE FOR THE REASON THAT IF BOTH THE PENDING AND COM PLETED ASSESSMENT WERE TO BE TAKEN ON SAME PEDESTAL, THEN THERE WAS NO NEED TO ENSHRINE SECOND PROVISO TO SEC. 153A( 1) PROVIDING THAT THE PENDING ASSESSMENTS WITHIN THE PERIOD OF SIX ASSESSMENT YEARS SHALL ABATE. THE HON'BLE DELHI HIGH COURT IN THE CASE O F ANIL KUMAR BHATIA (SUPRA) DEALT WITH A SITUATION IN WHICH SOME INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF A NON - PENDING ASSESSMENT. IT WAS IN THAT BACKGROUND THAT THE HON'BLE HIGH COURT HELD THAT SEC. 153A APPLIES IF INCRIMINATING MATERIAL IS FOUND E VEN IF ASSESSMENTS ARE COMPLETED. THE QUESTION AS TO WHETHER ANY ADDITION CAN BE MADE IN RESPECT OF COMPLETED ASSESSMENTS WHEN NO INCRIMINATING MATERIAL WAS FOUND, WAS APPARENTLY LEFT OPEN. HOWEVER, WE FIND THAT THERE ARE SUFFICIENT INDIRECT HINTS GIVEN BY THE HON 'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA) ABOUT NOT MAKING OF ANY ADDITION IN RESPECT OF AN ASSESSMENT YEAR FOR WHICH THE ASSESSMENT IS ALREADY COMPLETED UNLESS SOME INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH. THIS CAN BE SEEN FROM THE . FOLLOWING OBSERVATIONS OF THE HON'BLE HIGH COURT : - '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, E ITHER 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 REASSES S THE TOTAL INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. 10 9. THE ABOVE EXTRACTED OBSERVATIONS OF THE HON'BLE HIGH COURT, WHICH ARE THOUGH OBITER DICTA, MAKE THE POINT CLEAR THAT WHERE AN ASSESSMENT ORDER HAS ALREAD Y BEEN PASSED FOR A YEAR(S) WITHIN THE RELEVANT SIX ASSESSMENT YEARS, THEN ALSO THE A.O IS DUTY BOUND TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME BUT BY 'TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY, UNEARTHED DURING THE SEARCH'. THE EXPRESSI ON 'UNEARTHED DURING THE SEARCH' IS QUITE SIGNIFICANT TO DENOTE THAT IN RESPECT OF COMPLETED OR NON - PENDING ASSESSMENTS, THE ASSESSING OFFICER IS ALBEIT DUTY BOUND TO ASSESS OR REASSESS THE TOTAL INCOME BUT THERE IS A CAP ON THE SCOPE OF ADDITIONS IN SUCH ASSESSMENT, BEING THE ITEMS OF INCOME 'UNEARTHED DURING THE SEARCH'. IN OTHER WORDS, THE DETERMINATION OF 'TOTAL INCOME' IN RESPECT OF THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS ARE ALREADY COMPLETED ON THE DATE OF SEARCH, SHALL NOT BE INFLUENCED BY TH E ITEMS OF INCOME OTHER THAN THOSE BASED ON THE MATERIAL UNEARTHED DURING THE COURSE OF SEARCH. THERE IS NOT AND CANNOT BE ANY QUARREL OVER THE PROPOSITION THAT THE ASSESSING OFFICER HAS NO OPTION BUT TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN RESPEC T OF THE RELEVANT SIX ASSESSMENT YEARS. HOWEVER, THE SCOPE OF SUCH DETERMINATION OF TOTAL INCOME IS DIFFERENT IN RESPECT OF THE YEARS FOR WHICH THE ASSESSMENTS ARE PENDING VIS - VIS THE YEARS FOR WHICH ASSESSMENTS ARE NON - PENDING. IN RESPECT TO THE ASSESSMEN T YEARS FOR WHICH THE ORIGINAL ASSESSMENTS HAVE ALREADY BEEN COMPLETED ON THE DATE OF SEARCH, THE TOTAL INCOME SHALL BE DETERMINED BY RESTRICTING ADDITIONS ONLY TO THOSE WHICH FLOW FROM INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IF NO INCRIM INATING MATERIAL IS FOUND IN RESPECT OF SUCH COMPLETED ASSESSMENT, THEN THE TOTAL INCOME IN THE PROCEEDINGS U/S 153A SHALL BE COMPUTED BY CONSIDERING THE ORIGINALLY DETERMINED INCOME. IF SOME INCRIMINATING MATERIAL IS FOUND IN RESPECT OF 11 SUCH ASSESSMENT YE ARS FOR WHICH THE ASSESSMENT IS NOT PENDING, THEN THE 'TOTAL INCOME' WOULD BE DETERMINED BY CONSIDERING THE ORIGINALLY DETERMINED INCOME PLUS INCOME EMANATING FROM THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IN THE OTHER SCENARIO OF THE A SSESSMENTS PENDING ON THE DATE OF SEARCH WHICH WOULD ABATE IN TERMS OF SECOND PROVISO TO SEC. 153A( 1), THE TOTAL INCOME SHALL BE COMPUTED AFRESH UNINFLUENCED BY THE FACT WHETHER OR NOT THERE IS ANY INCRIMINATING MATERIAL. IN FACT, THIS IS THE POSITION WHI CH FOLLOWS WHEN WE READ THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN ANIL KUMAR BHATIA (SUPRA) IN JUXTAPOSITION TO THE SPECIAL BENCH ORDER IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA). THE OTHER JUDGMENT RELIED BY THE LD. DR IN THE CASE OF MAD UGULU VENU (SUPRA) ALSO TALKS ABOUT THE NEED FOR MAKING FRESH ASSESSMENT IN RESPECT OF THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS ARE NOT PENDING ON THE DATE OF SEARCH BUT DOES NOT SET OUT THE SCOPE OF SUCH ASSESSMENT, WHICH IS THE ISSUE BEFORE USE. 1 3 . WE, THUS, FIND THAT THE DECISION OF THE HON BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF ANIL KR. BHATIA (SUPRA) SUPPORTS THE CASE OF THE ASSESSEE THAT IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AN ADDITION U/S 153A OF THE ACT CANNOT BE MADE IN THE ASSESSMENT FRAMED THEREUNDER. THE DECISIONS RELIED UPON BY THE LD. CIT, DR IN THE CASES OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT (SUPRA) OF HON BLE KARNATAKA HIGH COURT AND FILATEX INDIA P. LTD. VS. CIT (SUPRA) OF H ON BLE DELHI HIGH COURT HAVING DISTINGUISHABLE FACTS ARE NOT APPLICABLE IN THE PRESENT CASE. IN THE CASE OF FILATEX INDIA PVT. 12 LTD. (SUPRA), THE QUESTION RAISED ON THE APPLICABILITY OF P ROVISIONS U/S 153A WAS THAT WHETHER THE TRIBUNAL ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT RE - COMPUTATION OF BOOK PROFIT, DE - HORS ANY MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE ORDER PASSED U/S 153A OF THE ACT WAS WITHOUT JURISDICTION, BEING OUTSIDE THE SCOPE OF PROCEEDINGS UNDER THAT SECTION? THE OTHER QUESTI ON WAS, WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN UPHOLDING THE ACTION OF THE AO IN DENYING SET OFF, OF BOOK LOSS UNABSORBED DEPRECIATION RELATABLE TO EARLIER ASSESSMENT YEAR IN TERMS OF CLAUSE (III) OF EXPLANATION 1 TO SECTION 115JB OF THE ACT? THE RELEVANT FACTS OF THAT CASE NOTED IN PARA NO. 2 OF THE DECISION ARE THAT THE AO IN THE PROCEEDINGS U/S 153A OF THE ACT, HAD MADE SEVERAL ADDITIONS, RELYING UPON THE INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH, W HICH WAS CONDUCTED ON 18.1.2006 AND SUBSEQUENT DATES. IN THIS PARAGRAPH OF THE DECISION IT HAS BEEN PERUSED FROM THE IMPUGNED ORDER OF THE T RIBUNAL THAT INCRIMINATING MATERIAL INCLUDING ST ATEMENT OF SANJAY AGARWAL, GM (M ARKETING ) HAVE RESULTED IN ADDITIONS , WHICH HAVE BEEN UPHELD . THE HON BLE HIGH COURT HAS BEEN PLEASED TO NOTE IN THIS PARAGRAPH AS IT IS NOT THE CASE OF THE APPELLANT ASSESSEE THAT IN ITIATION OF PROCEEDINGS U/S 153A WAS BAD OR UNWARRANTED IN LAW AS NO INCRIMINATING MATERIAL WAS 13 FOUND DUR ING THE SEARCH. THE CONTENTION RAISED BY THE APPELLANT ASSESSEE IS THAT THE ADDITION, WHICH IS THE SUBJECT MATTER OF QUESTIONS NO. (II) AND (III), WAS/IS NOT JUSTIFIED IN THE ASSESSMENT ORDER U/S 153, AS NO INCRIMINATING MATERIAL WAS FOUND CONCERNING TH E ADDITION U/S 115JB OF THE ACT. THE HON BLE HIGH COURT HAS REJECTED THIS CONTENTION OF THE ASSESSEE WITH THIS FINDING THAT U/S 153A OF THE ACT, THE ADDITIONS NEED NOT TO BE RESTRICTED OR LIMITED TO THE INCRIMINATING MATERIAL, WHICH WAS FOUND DURING THE C OURSE OF SEARCH. THUS, IT IS CLEAR FROM THE FACTS OF THIS CASE BEFORE THE HON BLE HIGH COURT THAT SEVERAL ADDITIONS RELYING UPON THE INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH WERE MADE BY THE AO IN THE ASSESSMENT PROCEEDINGS U/S 153A OF THE ACT AND ADDITION U/S 115JB WAS MADE BY THE AO IN ABSENCE OF INCRIMINAT ING MATERIAL CONCERNING THIS ADDITION. THIS ADDITION WAS QUESTIONED BY THE ASSESSEE ON THE BASIS THAT THERE WAS NO INCRIMINATING MATERIAL FOUND CONCERNING THE ADDITION MADE IN THE ASSESSME NT U/S 153A OF THE ACT , WHICH HA S BEEN REJECTED BY THE HON BLE HIGH COURT WITH THE ABOVE FINDING. IT WAS HELD BY THE HON BLE HIGH COURT THAT THERE CANNOT BE MULTIPLE ASSESSMENTS, ONCE SEC. 153A OF THE ACT IS APPLICABLE. SECTION 153A(1) POSTULATES ONE ASS ESSMENT; PUTTING THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY 14 PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. 1 4 . IN PARA NO. 3 OF THE JUDGMENT THE HON BLE DELHI HIGH COURT WHILE DISCUSSING THE CITED DECISIONS IN THE CASES CIT VS. CHETAN DAS (2012 ) , 254 CTR (DEL) 292 AND CIT VS. ANIL KR. BHATIA (2012 ) , 2010 - 11 TAXMAN 453 (DEL) CITED BY THE LD. AR OF THE ASSESSEE APPELLANT, HAS NOTED CERTAIN OBSERVATIONS MADE AND FINDINGS GIVEN BY T HE HON BLE COURT THEREIN. THEREAFTER IN PARA NO. 4 OF THE JUDGMENT, THE HON BLE HIGH COURT HAS HELD AS UNDER: T HE FIRST QUESTION, WE NOTICE WAS NOT RAISED BY THE APPELLANT BEFORE THE AO, CIT(A) AND BEFORE THE TRIBUNAL. THE APPELLANT CLAIMS THAT THE CONT ENTION BEING LEGAL CAN BE RAISED AT ANY STAGE. WE HAVE EXAMINE D SEC. 153A OF THE ACT AND FIND THAT THE SUBMISSION/ CONTENTION HAS NO MERIT . 1 5. WHEN WE PERUSE THE FACTS OF THE CASE IN THE CASE OF FILATAX INDIA LTD. AND THE QUESTION RAISED THEREIN IT CO MES OUT THAT IN THAT CASE ADMITTEDLY DURING THE COURSE OF SEARCH INCRIMINATING MATERIAL INCLUDING STATEMENTS WERE FOUND AND RESULTED IN ADDITIONS AND THE ADDITION MADE U/S 115JB OF THE ACT WAS NOT BASED UPON ANY INCRIMINATING MATERIAL. THUS, THE QUESTION RAISED BEFORE THE HON BLE HIGH COURT WAS AS TO 15 WHETHER THE TRIBUNAL HAS ERRED IN LAW IN NOT UPHOLDING THAT R E - COMPUTATION OF BOOK PROFIT, DE - HORS ANY MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE ORDER BASED U/S 153A OF THE ACT WAS WITHOUT JURISDICTION , BEING OUTSIDE THE SCOPE OF PROCEEDINGS UNDER THAT SECTION. THE HON BLE HIGH COUR T AFTER DISCUSSING THE ISSUE IN DETAIL HAS BEEN PLEASED TO DECIDE THE QUESTI ON AGAINST THE ASSESSEE AND HAS UPHELD THE ADDITION MADE U/S 115JB OF THE ACT. THUS, HAVING DIST INGUISHABLE FACTS THIS CITED THE DECISION IN THE CASE OF FILATAX INDIA LTD. (SUPRA) IS NOT HELPFUL TO THE REVENUE. 1 6. SO FAR AS, THE DECISION OF HON BLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY (SUPRA) RELIED UPON BY THE LD . CIT DR IS CONCERNED, T HE ISSUE RAISED BEFORE THE HON BLE HIGH COURT WAS REGARDING VALIDITY OF REVISIONAL ORDER PASSED U/S 263 OF THE ACT BY THE LD. CIT PARTLY UPHELD BY THE TRIBUNAL AND DURING THAT COURSE THE HON BLE HIGH COURT HAS ALSO BEEN PLEASED TO D ISCUSS THE DECISION IN THE CASES OF ANIL KUMAR BHATIA (SUPRA) AND THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTIC LTD. (SUPRA). I T HAS BEEN OBSERVED BY THE HON BLE HIGH COURT THAT THE CONDITION PRECEDENT FOR APPLICAT ION OF SEC. 153A IS THAT THER E SHOULD BE A 16 SEARCH U/S 132 A ND INITIATION OF PROCEEDINGS U/S 153A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTH DURING THE SUCH SEARCH. THE HON BLE RAJASTHAN HIGH COURT IN T HE CASE OF JAI STEEL (SUPRA) HAS BEEN PL EASED TO HO LD THAT IF ANY BOOKS OF ACCOUNTS 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 ACCOUNTS OR OTHER DOCUMENTS HAVE TO BE TAKEN I NTO CONSIDER ATION WHILE ASSESSING OR RE - ASSESSING THE TOTAL INCOME UNDER THE PROVISIONS OF SEC. 153A OF THE ACT. EVEN ANY UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AFTER THE CONCLUSIONS OF THE SEARCH, SAME WOULD ALSO BE TAKEN INTO CONSIDERATION. THE R EQUIREMENT OF ASSESSMENT OR RE - ASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF SECTIONS 1 32 OR 132A OF THE ACT, IN MUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF RE - ASSESSM E NT OF THE CONCLUDED ASSESSMENT DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABA TED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED TO BE ASSESSED. 1 7 . IN THE CASE OF SSP AVIATION LTD. VS. DCIT (SUPRA) WHERE THE VALIDITY OF ASSESSMENT FRAMED U/S 153C WAS CHALLENGED IT WAS HELD THAT IF THE AO IS SATISFIED THAT ANY MONEY, B ULLION, JEWELLERY OR OTHER VALUABLE 17 ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED IN THE COURSE OF THE SEARCH BELONGS TO A PERSON OTHER THAN THE PERSON WHO WAS SEARCHED, THEN SUCH ASSETS OR BOOKS OF ACCOUNTS OR DOCUMENTS SHALL BE HANDED OVER BY HIM TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. ONCE, THAT IS DONE, THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON SHALL PROCEE D AGAINST HIM FOR MAKING AN ASSESSMENT OR REASSESSMENT OF HIS INCOME IN ACCORDANCE WITH THE PROVISIONS OF SEC. 153A. THE PETITIONER THEREIN WAS NOT SEARCH ED U/S 132 OF THE ACT, HOWEVER, SOME DOCUMENTS BELONGING TO IT WERE FOUND DURING THE SEARCH CARRIED O UT IN THE PREMISES OF PURI GROUP OF COMPANIES. 1 8 . WE, THUS, FIND THAT THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT AND HON BLE RAJASTHAN HIGH COURT IN THE ABOVE CITED AND DISCUSSED DECISIONS SUPPORTS THE CASE OF THE ASSESSEE THAT IN ABSENCE OF INC RIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH NO ADDITION CAN BE MADE U /S 153A OF THE ACT W H ERE THE ORIGINAL ASSESSMENT WAS ALREADY FRAMED ON THE DATE OF SEARCH. THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY (S UPRA) HAS, HOWEVER, BEEN PLEASED TO EXPRESS DIFFERENT VIEW , HOWEVER, AS PER THE ESTABLISHED PROPOSITION OF LAW, WE ARE BOUND TO FOLLOW THE DECISION OF HON BLE 18 JURISDIC TIONAL DELHI HIGH COURT AND SINCE, THE HON BLE KARNATAKA HIGH COURT AND THE HON BLE RAJAS THAN HIGH COURT HAVE EXPRESSED DIFFERENT VIEWS ON THE ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE IS TO BE FOLLOWED. WE, THUS, REITERATE THAT IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH NO ADDITION CAN BE MADE IN A CASE WHERE ORI GINAL ASSESSMENT WAS ALREADY FRAMED ON THE DATE WHEN SEARCH TOOK PLACE. 1 9 . IN ABSENCE OF REBUTTAL OF THIS MATERIAL FACT BY THE REVENUE IN THE PRESENT CASE BEFORE US THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH RELATING TO THE ASSE SSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION TO JUSTIFY THE ADDITIONS MADE IN THESE YEARS BY THE ASSESSING OFFICER AND ASSESSMENT BASED ON THE ORIGINAL RETURN OF INCOME FILED UNDER SEC. 139 OF THE ACT WAS PENDING AS ON THE DATE OF SEARCH, WE FOLLOWING THE ABOVE CITED DECISIONS BY THE LEARNED AR DISCUSSED ABOVE HOLD THAT THE ASSESSMENT S FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE INCOME - TAX ACT, 1961 FOR THE ASSESSMENT YEAR S UNDER CONSIDERATION ARE NOT VALID AND THE SAME ARE ACCORDINGLY HELD AS NULL AND VOID. THE RELATED GROUND ON THE ISSUE IS THUS ALLOWED. 19 11. IN VIEW OF THE ABOVE FINDINGS, WHEREBY THE ASSESSMENT ITSELF HAS BEEN HELD NULL AND VOID, THE OTHER ISSUES RAISED IN OTHER GROUNDS QUESTIONING THE VALIDITY OF THE ADDITIONS MADE DURING T HE ASSESSMENT YEARS IN QUESTION HAVE BECOME INFRUCTUOUS AND ACADEMIC ONLY. THESE GROUNDS THUS DO NOT REQUIRE ANY ADJUDICATION. THE SAME ARE BEING DISPOSED OFF AS SUCH. 12. IN RESULT, APPEALS ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 17 . 0 2 . 201 5 SD/ - SD/ - ( N.K. SAINI ) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 / 0 2 /201 5 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR