A.B.S.Sanjjay, Salem V. ACIT, Salem

ITA 1692/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73626 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 04-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G BASKAR
• Keywords: Unexplained cash credit; Gift; Valuation report; Block assessment; Reassessment proceedings
• Section: 143(3); 153A; 68; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , !' , # $! % BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENTAND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ./ ITA NOS.1691, 1692 & 1693(MDS)/2013 # & '& / ASSESSMENT YEARS : 2003-04, 2004-05 & 2005-06 SHRI A.B.S. SANJJAY, NO.251-A, OMALUR ROAD, SALEM 636 004. PAN : AGQPS 1315 L V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, SALEM. ( ') ) (APPELLANT) ( +,') ) (RESPONDENT) ./ ITA NOS.1694 & 1695(MDS)/2013 # & '& / ASSESSMENT YEARS : 2004-05 & 2005-06 SHRI A.B. SUDARSANAM, NO.251-A, OMALUR ROAD, SALEM 636 004. PAN : AGQPS 1338 D V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, SALEM. ( ') ) (APPELLANT) ( +,') ) (RESPONDENT) ') - / APPELLANTS BY : SHRI G. BASKAR, ADVOCATE +,') - / RESPONDENT BY : SHRI ANIRUDH RAI, IRS, CIT 2 I.T.A. NOS.1691 TO 1695/MDS/2013 . - /0 / DATE OF HEARING : 23 RD JANUARY, 2014 12' - /0 / DATE OF PRONOUNCEMENT : 24 TH JANUARY, 2014 / O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT THIS IS A BUNCH OF FIVE APPEALS FILED BY TWO ASSE SSEES, SHRI A.B.S. SANJJAY AND SHRI A.B. SUDARSANAM. SHRI A.B. S. SANJJAY HAS FILED APPEALS FOR THREE ASSESSMENT YEARS 2003-04, 2 004-05 AND 2005-06 AND SHRI A.B. SUDARSANAM HAS FILED APPEALS FOR TWO ASSESSMENT YEARS 2004-05 AND 2005-06. ALTOGETHER T HESE APPEALS RELATE TO ASSESSMENT YEARS 2003-04, 2004-05 AND 200 5-06. 2. ALL THESE APPEALS ARE DIRECTED AGAINST THE ORDER S OF THE COMMISSIONER OF INCOME TAX (APPEALS) AT SALEM, PASS ED ON 29.7.2013. THESE APPEALS ARISE OUT OF THE ASSESSME NTS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 153A OF THE INCOME-TAX ACT, 1961. 3. THE ASSESSEES, SHRI A.B.S. SANJJAY AND SHRI A.B. SUDARSANAM ARE SON AND FATHER. THEY ARE ENGAGED IN THE BUSINESS OF JEWELLERY AND CONSTRUCTION AT SALEM. THE ASSESS EES ARE REGULARLY ASSESSED TO INCOME-TAX. SHRI A.B. SUDARSANAM HAD F ILED HIS 3 I.T.A. NOS.1691 TO 1695/MDS/2013 REGULAR RETURNS OF INCOME FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 ON 14.7.2004 AND 31.8.2005 RESPECTIVELY. T HE ASSESSMENT FOR THE ASSESSMENT YEAR 2004-05 WAS COMPLETED THROU GH THE INTIMATION DATED 13.8.2004, PASSED UNDER SECTION 14 3(1). THE ASSESSMENT IN THE CASE OF 2005-06 WAS COMPLETED UND ER SECTION 143(3) ON 31.12.2007. 4. IN THE CASE OF SHRI A.B.S. SANJJAY, THE RETURN F OR THE ASSESSMENT YEAR 2003-04 WAS FILED ON 7.8.2003. THE RETURN FILED BY THE ASSESSEE WAS ACKNOWLEDGED AND NO FURTHER PROCEE DINGS WERE INITIATED AND THE ASSESSMENT REMAINED CLOSED FOR TH E TIME BEING. THE RETURN FOR THE ASSESSMENT YEAR 2004-05 WAS FILE D ON 14.7.2004 AND THE RETURN WAS PROCESSED UNDER SECTION 143(1) T HROUGH INTIMATION DATED 13.8.2004. THE RETURN FOR THE ASS ESSMENT YEAR 2005-06 WAS FILED ON 31.8.2005 AND SCRUTINY ASSESSM ENT WAS COMPLETED UNDER SECTION 143(3) THROUGH ORDER DATED 31.12.2007. 5. THEREFORE, IT IS TO BE SEEN THAT BOTH THE ASSESS EES HAVE FILED REGULAR RETURNS FOR ALL THE IMPUGNED ASSESSMENT YEA RS AND THE RETURNS FILED BY THEM HAVE BECOME FINAL FOR THE TIM E BEING. 6. WHILE THE MATTER RESTING SO, A SEARCH WAS CONDUC TED UNDER SECTION 132 ON THE PREMISES OF THE ASSESSEES ON 29 TH JANUARY, 4 I.T.A. NOS.1691 TO 1695/MDS/2013 2009. IN THE LIGHT OF THE SEARCH CARRIED OUT, THE ASSESSING OFFICER ISSUED NOTICES TO THE ASSESSEES TO FILE RETURNS OF INCOME IN PURSUANCE OF SECTION 153A. THE NOTICES ISSUED BY T HE ASSESSING AUTHORITY WERE COMPLIED WITH AND THE RETURNS WERE F ILED BY THE ASSESSEES. 7. WHILE COMPLETING THE ASSESSMENTS UNDER SECTION 1 53A, THE ASSESSING OFFICER HAS MADE CERTAIN ADDITIONS IN THE HANDS OF BOTH THE ASSESSEES. 8. BOTH THE ASSESSEES HAVE RECEIVED GIFTS FROM PERS ONS RESIDING OUTSIDE INDIA IN THE PREVIOUS YEARS RELEVA NT TO THE ASSESSMENT YEARS UNDER APPEAL. IN THE COURSE OF AS SESSMENT PROCEEDINGS, THE ASSESSING OFFICER CAME TO A CONCLU SION THAT THESE GIFTS WERE NOT GENUINE. THEREFORE, HE TREATED THOS E GIFTS AS UNEXPLAINED CREDITS AND ADDED THOSE AMOUNTS AS INCO ME OF THE ASSESSEES UNDER SECTION 68 OF THE INCOME-TAX ACT, 1 961. THUS, THE ASSESSING AUTHORITY HAS MADE ADDITIONS AGAINST GIFT S DECLARED BY THE ASSESSEES FOR ALL THE ASSESSMENT YEARS 2003-04, 2004-05 AND 2005-06. 9. THE ASSESSEES HAVE JOINTLY CONSTRUCTED A COMMERC IAL BUILDING, WHICH WAS COMPLETED DURING THE PREVIOUS Y EAR RELEVANT TO 5 I.T.A. NOS.1691 TO 1695/MDS/2013 ASSESSMENT YEAR 2005-06. THE ASSESSEES HAVE DECLAR ED THE COST OF CONSTRUCTION AT ` 2,12,20,060/-. THE ASSESSMENTS IN THE CASE OF BOTH THE ASSESSEES, FOR THE ASSESSMENT YEAR 2005-06 , WERE COMPLETED UNDER SECTION 143(3) THROUGH ORDERS DATED 31.12.2007. IN THE COURSE OF THOSE SCRUTINY ASSESSMENTS, THE IS SUE OF COST OF CONSTRUCTION OF THE COMMERCIAL PROPERTY WAS REFERRE D BY THE ASSESSING OFFICER TO THE DEPARTMENTAL VALUATION OFF ICER (DVO). BUT, THE REPORT OF THE DVO WAS NOT MADE AVAILABLE T O THE ASSESSING AUTHORITY WHEN THOSE SCRUTINY ASSESSMENTS WERE CONC LUDED. THE REPORT OF THE DVO WAS MADE AVAILABLE TO THE ASSESSI NG OFFICER ONLY AFTER THE ASSESSMENTS WERE COMPLETED. AS PER THE R EPORT OF THE DVO, THE COST OF CONSTRUCTION OF THE BUILDING HAS B EEN DETERMINED AT ` 3,75,00,000/-. THIS HAS GIVEN RISE TO A DIFFERENC E OF ` 1,62,79,940/-. THE ASSESSING AUTHORITY, IN THE COUR SE OF THE SEARCH ASSESSMENTS, ADDED THIS DIFFERENTIAL AMOUNT IN THE HANDS OF THE ASSESSEES AT ONE-HALF EACH. ACCORDINGLY, AN ADDITI ON OF ` 81,39,970/- HAS BEEN MADE IN THE HANDS OF BOTH SHRI A.B.S. SANJJAY AND SHRI A.B. SUDARSANAM. 10. IN SHORT, THE TWO ADDITIONS MADE BY THE ASSESSI NG AUTHORITY IN THE COURSE OF 153A ASSESSMENTS ARE:- (1) GIFTS RECEIVED BY THE ASSESSEES (2) DIFFERENCE IN COST OF CONSTRUCTION 6 I.T.A. NOS.1691 TO 1695/MDS/2013 THESE ADDITIONS WERE TAKEN UP BEFORE COMMISSIONER O F INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS ) CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER AS AGAI NST THE GIFTS RECEIVED BY THE ASSESSEES FROM THE PERSONS RESIDING OUTSIDE INDIA. IN RESPECT OF THE ADDITION MADE BY THE ASSESSING AU THORITY TOWARDS COST OF CONSTRUCTION OF THE COMMERCIAL BUILDING, PA RTIAL RELIEF WAS GIVEN BY THE COMMISSIONER OF INCOME TAX (APPEALS). 11. THE ASSESSEES ARE AGGRIEVED BY THE ADDITIONS SU STAINED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AND THEREF ORE, THESE SECOND APPEALS BEFORE THE TRIBUNAL. 12. IN ALL THESE APPEALS, OBVIOUSLY, THE ISSUES RAI SED ARE THE SAME AND THE GROUNDS RAISED IN THE APPEALS ARE COMM ON. 13. THE ASSESSEES HAVE RAISED TWO SET OF GROUNDS BE FORE THE TRIBUNAL. THE FIRST SET OF GROUND RAISED BY THE AS SESSEES IS THAT NO INCRIMINATING MATERIAL WAS FOUND OUT OR SEIZED IN T HE COURSE OF SEARCH AND IN SUCH CIRCUMSTANCES, IT WAS NOT POSSIB LE FOR THE ASSESSING OFFICER TO MAKE ADDITIONS OF THOSE ITEMS WHICH WERE ALREADY DISCLOSED IN THE RETURNS FILED FOR THE IMPU GNED ASSESSMENT YEARS ON WHICH, ASSESSMENTS WERE COMPLETED BEFORE T HE SEARCH CARRIED OUT ON 29.1.2009. THE SECOND SET OF GROUND RAISED BY THE 7 I.T.A. NOS.1691 TO 1695/MDS/2013 ASSESSEES IS ON MERIT THAT GIFTS WERE PROVED BY THE ASSESSEES BY FILING CONFIRMATION LETTERS OF THE DONORS AND BY PR OVING THE MOVEMENT OF FUNDS THROUGH BANKING CHANNELS AND THER E WAS NO BASIS FOR ADDING THE DIFFERENCE IN DVOS REPORT TO THE COST OF CONSTRUCTION OF THE COMMERCIAL BUILDING. 14. SHRI G. BASKAR, THE LEARNED COUNSEL APPEARING F OR THE ASSESSEES, CONCENTRATED ON HIS ARGUMENTS ON THE LEG AL GROUNDS RAISED BY THE ASSESSEES. HE HAS FURNISHED THE DETA ILS OF THE RETURNS FILED BY THE ASSESSEES AND THE ASSESSMENTS COMPLETE D THEREON, IN A PAPER-BOOK FILED BEFORE THE BENCH. AS ALREADY ST ATED IN THE INITIAL PARAGRAPH OF THIS ORDER, THE ASSESSEES HAD FILED RE GULAR RETURNS FOR ALL THESE ASSESSMENT YEARS WELL BEFORE THE SEARCH C ARRIED OUT IN THE PREMISES OF THE ASSESSEES. THOSE RETURNS WERE PROC ESSED UNDER SECTION 143(1) AND CONCLUDED BY ISSUE OF INTIMATION S FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. THE RETURNS FILED FOR THE ASSESSMENT YEAR 2005-06 WERE TAKEN UP FOR SCRUTINY AND ASSESSMENTS WERE COMPLETED UNDER SECTION 143(3). A LL THE ASSESSMENTS WERE COMPLETED EITHER UNDER SECTION 143 (1) OR UNDER SECTION 143(3) BEFORE THE SEARCH WERE CARRIED OUT O N 29.1.2009. 15. IN THE LIGHT OF THE ABOVE FACTS, THE LEARNED CO UNSEL SUBMITTED THAT IT WAS NOT POSSIBLE FOR THE ASSESSING OFFICER TO TAKE OUT THE 8 I.T.A. NOS.1691 TO 1695/MDS/2013 FIGURES ALREADY FILED BY THE ASSESSEES AND ASSESSED BY THE DEPARTMENT, AND ADD THOSE AMOUNTS IN A PROCEEDINGS U. 153A. THE LEARNED COUNSEL HAS EXPLAINED THAT NO INCRIMINATING MATERIAL WAS COLLECTED IN THE COURSE OF SEARCH, WHICH WAS NOT DI SCLOSED IN THE ORIGINAL RETURNS FILED BY THE ASSESSEES. THE RECEI PT OF GIFTS AND THEIR PARTICULARS WERE DISCLOSED IN THE ORIGINAL RETURNS OF INCOME FILED BY THE ASSESSEES, WELL BEFORE THE SEARCH. THEY WERE A LL PART OF ASSESSMENTS ALREADY COMPLETED IN THE CASE OF THE AS SESSEES. THEREFORE, IN THE ABSENCE OF ANY INCRIMINATING MATE RIAL IN THE COURSE OF SEARCH, IT WAS NOT POSSIBLE FOR THE ASSESSING OF FICER TO REOPEN THE ISSUE OF GIFTS CONCLUDED IN THE ORIGINAL ASSESSMENT S AND MAKE ADDITIONS OF THOSE AMOUNTS IN THE ASSESSMENTS COMPL ETED UNDER SECTION 153A. 16. IN SUPPORT OF THE ABOVE ARGUMENT, THE LEARNED C OUNSEL HAS RELIED ON THE JUDGMENT OF THE HONBLE HIGH COURT OF RAJASTHAN RENDERED IN THE CASE OF JAI STEEL (INDIA) V. ASSIST ANT COMMISSIONER OF INCOME TAX (2013) 88 DTR (RAJ) 1. IN THE SAID C ASE, HONBLE RAJASTHAN HIGH COURT HAS CONSIDERED THE SCOPE OF SE CTION 153A. THE COURT HAS HELD THAT REQUIREMENT OF ASSESSMENT O R REASSESSMENT UNDER SECTION 153A HAS TO BE READ IN T HE CONTEXT OF SECTION 132 OR 132A IN AS MUCH AS IN CASE NOTHING I NCRIMINATING IS 9 I.T.A. NOS.1691 TO 1695/MDS/2013 FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENT DOES NOT A RISE. THE COURT OBSERVED THAT THUS, THE UNDERLYING PURPOSE OF MAKING ASSESSMENT OF TOTAL INCOME UNDER SECTION 153A IS TO ASSESS INCOME WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISC LOSED. THE COURT FURTHER OBSERVED THAT THE SECOND PROVISO TO S ECTION 153A PROVIDES FOR ABATEMENT OF ASSESSMENT OR REASSESSMEN T WHICH IS PENDING ON THE DATE OF INITIATION OF SEARCH OR RE QUISITION IN AS MUCH AS ONCE A RETURN IS FILED IN TERMS OF SECTION 153A AND THE ASSESSING OFFICER IS REQUIRED TO ASSESS THE SAME, THERE CANNO T BE TWO ASSESSMENT ORDERS DETERMINING THE TOTAL INCOME OF T HE ASSESSEE FOR THE SAID ASSESSMENT YEAR. THERE IS NO QUESTION OF ANY ABATEMENT OF ASSESSMENT OR REASSESSMENT PROCEEDINGS WHICH HAV E ALREADY BEEN COMPLETED AT THE TIME WHEN THE SEARCH OR REQUI SITION IS MADE. 17. THE LEARNED COUNSEL, IN THE LIGHT OF THE ABOVE JUDGMENT, HAS POINTED OUT THAT IN THE CASE OF PRESENT ASSESSEES, THE RETURNS WERE FILED AND ASSESSMENTS HAVE BEEN COMPLETED BEFORE TH E SEARCH AND THEREFORE, NO RETURNS WERE PENDING FOR ASSESSMENT O R REASSESSMENT IN THE CASE OF THESE ASSESSEES. WHEN NO ASSESSMENT OR REASSESSMENT IS PENDING, THE ASSESSING OFFICER CANN OT REASSESS THE INCOME ALREADY ASSESSED IN THE ORIGINAL ASSESSM ENTS. IN THE 10 I.T.A. NOS.1691 TO 1695/MDS/2013 PRESENT CASE, THE GIFTS HAVE ALREADY BEEN DISCLOSED AND CONSIDERED IN THE ORIGINAL ASSESSMENTS AND NO INCRIMINATING MA TERIALS WERE COLLECTED IN THE COURSE OF SEARCH AND AS SUCH, THER E WAS NO REASON FOR THE ASSESSING OFFICER TO RECONSIDER THE ISSUE O F GIFTS AND MAKE ADDITIONS ON THAT GROUND. 18. THE LEARNED COUNSEL FURTHER ARGUED THAT THE SAM E ARGUMENT IS VALID FOR THE QUESTION OF ADDITION RELATING TO C OST OF CONSTRUCTION AS WELL. WHEN THE ASSESSMENTS WERE COMPLETED UNDER SE CTION 143(3), NO REPORT OF THE DVO WAS AVAILABLE, BUT, AT THE SAM E TIME NO DEFECT WAS POINTED OUT BY THE ASSESSING OFFICER. THEREFOR E, THE COST OF CONSTRUCTION RETURNED BY THE ASSESSEES WAS ACCEPTED BY THE ASSESSING OFFICER AND THE ASSESSMENTS WERE COMPLETE D. THEREFORE, THE QUESTION OF COST OF CONSTRUCTION OF THE COMMERCIAL BUILDING WAS ALSO A SUBJECT MATTER OF SCRUTINY ASSE SSMENTS COMPLETED UNDER SECTION 143(3) BEFORE THE SEARCH WA S CARRIED OUT. IN SUCH CIRCUMSTANCES, CONSIDERING THE REPORT OF TH E DVO IN THE COURSE OF ASSESSMENT UNDER SECTION 153A IS NOT PERM ISSIBLE IN LAW AS IT AMOUNTS TO REASSESSMENT. 19. THE LEARNED COUNSEL HAS RELIED ON THE DECISION OF SPECIAL BENCH, ITAT, MUMBAI, RENDERED IN THE CASE OF ALL CA RGO GLOBAL LOGISTICS LTD. V. DEPUTY COMMISSIONER OF INCOME TAX REPORTED IN 11 I.T.A. NOS.1691 TO 1695/MDS/2013 (2012) 137 ITD 287 (MUMBAI) (SB). IN THE CASE BEF ORE THE SAID SPECIAL BENCH ALSO, THE TRIBUNAL HAS CONSIDERED THE SCOPE OF SECTION 153A ASSESSMENT OR REASSESSMENT IN A CASE O F PENDING ASSESSMENT AND IN THE CASE OF CONCLUDED ASSESSMENT. AFTER CONSIDERING THE LAW ON THE SUBJECT IN A DETAILED MA NNER, THE SPECIAL BENCH HAS HELD THAT WHETHER IN A CASE WHERE PURSUAN T TO ISSUE OF NOTICE UNDER SECTION 153A ASSESSMENTS ARE ABATED, A SSESSING OFFICER RETAINS ORIGINAL JURISDICTION AND JURISDICT ION CONFERRED ON HIM UNDER SECTION 153A FOR WHICH ASSESSMENTS WILL BE MA DE FOR EACH OF SIX ASSESSMENT YEARS SEPARATELY. IN OTHER CASES, W HERE THE ASSESSMENTS HAVE ALREADY BEEN MADE, ASSESSMENT UNDE R SECTION 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MAT ERIALS FOUND IN THE COURSE OF SEARCH AND NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT. THE SPECIAL BENCH HELD THAT A REASSESS MENT IS POSSIBLE IN THE CASE OF CONCLUDED ASSESSMENTS ONLY IF THE SEARCH HAS BROUGHT OUT INCRIMINATING MATERIALS AGAINST THE ASSESSEE. WHERE NO INCRIMINATING MATERIAL WAS FOUND OUT AND W HERE ASSESSMENTS HAVE ALREADY BEEN COMPLETED, ASSESSMENT UNDER SECTION 153A DOES NOT ALLOW THE ASSESSING OFFICER T O REASSESS THE INCOME ALREADY ASSESSED EARLIER. 12 I.T.A. NOS.1691 TO 1695/MDS/2013 20. THE LEARNED COUNSEL HAS ALSO RELIED ON THE FOLL OWING DECISIONS IN SUPPORT OF HIS LEGAL ARGUMENT AS EXPLA INED ABOVE:- 1. M/S JEYACHANDRAN INDUSTRIES LTD. V. ASSISTANT COMMISSIONER OF INCOME TAX, ITAT, CHENNAI C BENCH IN I.T.A. NO.238, 239 & 240/MDS/12 DATED 26 TH NOVEMBER, 2012. 2. ASSISTANT COMMISSIONER OF INCOME TAX V. ASHA KAT ARIA (2013) 36 CCH 082 DEL TRIB 3. VISHAL DEMBLA V. DEPUTY COMMISSIONER OF INCOME T AX (2013) 93 DTR (JD)(TRIB) 1 21. ON THE MERITS OF THE CASE, THE LEARNED COUNSEL HAS CONTENDED THAT ALL THE GIFTS WERE RECEIVED BY THE A SSESSEES THROUGH BANKING CHANNELS PROPERLY DISCLOSING THE RECEIPT. ALL THE DONORS HAVE FILED CONFIRMATION LETTERS BEFORE THE ASSESSIN G AUTHORITY. THE DONORS ARE FRIENDS OF THE ASSESSEES. THE ASSESSING OFFICER HAS ISSUED A DETAILED QUESTIONNAIRE TO ELICIT PARTICULA RS REGARDING GENUINENESS OF THESE GIFTS AND ASSESSEES HAVE REPLI ED WHEREVER POSSIBLE AND COULD NOT GIVE CERTAIN FINE DETAILS BE CAUSE OF LAPSE OF TIME. THE ASSESSEES HAVE DISCHARGED THEIR ONUS OF PROOF BY PROPERLY ACCOUNTING THESE GIFTS RECEIVED FROM FRIEN DS AND BY SHOWING THAT THE GIFTS WERE MADE THROUGH BANKING CH ANNELS AND THE DONORS HAVE CONFIRMED THE GIFTS MADE TO THE ASSESSE ES. WHEN THE ASSESSEES HAVE DISCHARGED THE ONUS OF PROOF CAST ON THEM, THERE WAS NO GROUND FOR THE LOWER AUTHORITIES TO TREAT TH OSE GIFTS AS 13 I.T.A. NOS.1691 TO 1695/MDS/2013 UNEXPLAINED CREDITS AND MAKE ADDITIONS IN THE HANDS OF THE ASSESSEES. 22. IN THE CASE OF COST OF CONSTRUCTION, THE LEARNE D COUNSEL RELYING ON THE JUDGMENT OF HONBLE MADRAS HIGH COUR T IN THE CASE OF COMMISSIONER OF INCOME TAX V. V.T. RAJENDRAN (288 I TR 312) CONTENDED THAT DIFFERENCE BETWEEN COST SHOWN BY THE ASSESSEES AND ESTIMATE MADE BY THE DVO CANNOT BE A GROUND FOR REASSESSMENT. 23. THE LEARNED COUNSEL THEREFORE CONTENDED THAT ON FACTS ALSO THE CLAIMS OF THE ASSESSEES HAVE BEEN PROVED AND TH EREFORE, THE LOWER AUTHORITIES ARE NOT JUSTIFIED IN SUSTAINING T HE ADDITIONS MADE IN THESE APPEALS. 24. SHRI ANIRUDH RAI, THE LEARNED COMMISSIONER OF I NCOME TAX APPEARING FOR THE REVENUE, ARGUED THE CASE AT LENGT H. 25. THE LEARNED COMMISSIONER OF INCOME TAX EXPLAINE D THAT THE SCHEME OF SECTION 153A ASSESSMENT IS TO ASSESS OR R EASSESS THE TOTAL INCOME OF THE ASSESSEE AND THERE IS NO CONCEP T OF UNDISCLOSED INCOME AS SUCH IN MAKING ASSESSMENT UNDER SECTION 1 53A. WHEN A SEARCH WAS CARRIED OUT UNDER SECTION 132, IT IS M ANDATORY UPON THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTI ON 153A AND 14 I.T.A. NOS.1691 TO 1695/MDS/2013 THEREAFTER TO EXAMINE THE RETURNS ON THE DETAILS FU RNISHED BY THE ASSESSEE AND COMPLETE THE ASSESSMENT DETERMINING TH E TOTAL INCOME OF THE ASSESSEE. WHEN THE ASSESSING AUTHOR ITY IS DESTINED TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE, EV ERY ASPECT OF THE ASSESSMENT, WHETHER CAME TO LIGHT IN THE COURSE OF SEARCH OR ALREADY AVAILABLE IN THE RETURNS FILED BY THE ASSES SEE EARLIER, HAS TO BE EXAMINED; OTHERWISE HE WILL BE FAILING IN THE ST ATUTORY LIABILITY OF DETERMINING THE TOTAL INCOME. THE LEARNED COMMIS SIONER OF INCOME TAX CONTENDED THAT THE WHOLE ARGUMENT OF THE ASSESSEES IS BASED ON THE CONCEPT OF BLOCK ASSESSMENT CONCEIVED UNDER SECTION 158BC, WHICH IS NO MORE IN FORCE. THE THEME OF ASS ESSMENT UNDER SECTION 153A AND THAT OF SECTION 158BC ARE ENTIRELY DIFFERENT. IN THE CASE OF ASSESSMENT UNDER SECTION 153A, WHAT IS DETERMINED IS TOTAL INCOME, WHEREAS, IN A BLOCK ASSESSMENT UNDE R SECTION 158BC, WHAT IS ASSESSED IS UNDISCLOSED INCOME. T HEREFORE, THERE IS NO SCOPE TO MAKE A LIMITATION TO THE OPERATION O F SECTION 153A BY ARGUING THAT THE PARTICULARS FURNISHED IN THE RETUR NS BY THE ASSESSEES WILL NOT COME IN THE CONSIDERATION ZONE U NDER SECTION 153A. 26. IN THE SPECIAL BENCH DECISION CITED BY THE LEAR NED COUNSEL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. V. DEPU TY COMMISSIONER 15 I.T.A. NOS.1691 TO 1695/MDS/2013 OF INCOME TAX REPORTED IN (2012) 137 ITD 287 (MUMB AI) (SB), THE EARLIER ASSESSMENT WAS COMPLETED AFTER THOROUGH SCR UTINY AND EVERY ITEM DISCLOSED BY THE ASSESSEE WAS PROPERLY E XAMINED BY THE ASSESSING AUTHORITY. IT WAS IN THAT CONTEXT, THE S PECIAL BENCH HAS HELD THAT A REASSESSMENT IS NOT JUSTIFIED UNDER SEC TION 153A ON THOSE MATTERS SUFFICIENTLY CONSIDERED AT THE TIME O F ORIGINAL ASSESSMENT. AS FAR AS THE PRESENT CASE IS CONCERNE D, ALL THE ASSESSMENTS EXCEPT FOR ASSESSMENT YEAR 2005-06, WER E PROCESSED UNDER SECTION 143(1) WHEREBY IT IS EVIDENT THAT NO MIND WAS APPLIED IN EXAMINING THE ACCEPTANCE OF THE INCOME RETURNED BY THE ASSESSEES. THEY WERE NOT SCRUTINY ASSESSMENTS. TH E ASSESSING AUTHORITY HAD NO OCCASION TO EXAMINE THE VERACITY O F THE DETAILS FURNISHED IN THE RETURNS FILED BY THE ASSESSEES. T HE ASSESSMENT FOR ASSESSMENT YEAR 2005-06 COMPLETED EVEN THOUGH UNDER SECTION 143(3), THE ORDER PASSED BY THE ASSESSING OFFICER W AS VERY CRYPTIC. HE HAS NOT EXAMINED ANY OF THE DETAILS FURNISHED BY THE ASSESSEES IN THE RETURNS. HE HAS NOT EXAMINED THE GENUINENES S OF THE GIFTS DISCLOSED BY THE ASSESSEES IN THOSE RETURNS. THE A SSESSING OFFICER HAS SIMPLY ACCEPTED THE COST OF CONSTRUCTION, AS RE TURNED BY THE ASSESSEES, ON THE GROUND THAT THE VALUATION REPORT OF THE DVO WAS NOT AVAILABLE BEFORE HIM. THE LEARNED COMMISSIONER OF INCOME TAX ACCORDINGLY CONTENDED THAT IN THESE CASES, THE FACT S ARE SO DIFFERENT 16 I.T.A. NOS.1691 TO 1695/MDS/2013 FROM THE CASE CONSIDERED BY THE SPECIAL BENCH AND A S SUCH, THE RATIO OF THE DECISION OF SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. V. DEPUTY COMMISSIONER OF INC OME TAX REPORTED IN (2012) 137 ITD 287 (MUMBAI) (SB) IS NO T APPLICABLE TO THE PRESENT CASES. 27. IN SUPPORT OF HIS ARGUMENT, THE LEARNED COMMISS IONER OF INCOME TAX HAS RELIED ON THE FOLLOWING DECISIONS:- 1. MS. SHYAM LATA KAUSHIK V. ASSISTANT COMMISSIONER OF INCOME TAX (2008) 114 ITD 305 (DEL) 2. SHIVNATH RAI HARNARAIN (INDIA) LTD. V. DEPUTY COMMISSIONER OF INCOME TAX (2009) 117 ITD 74 (DEL) 3. DR. MANSUKH KANJIBHAI SHAH V. ASSISTANT COMMISSIONER OF INCOME TAX (2011) 129 ITD 376 (AHD.) 4. GOPAL LAL BHADRUKA V. DEPUTY COMMISSIONER OF INCOME TAX (2012) 346 ITR 106 (AP) 5. COMMISSIONER OF INCOME TAX V. ANIL KUMAR BHATIA (2013) 352 ITR 493 (DELHI) 6. COMMISSIONER OF INCOME TAX V. CHETAN DAS LACHMAN DAS (2012) 211 TAXMAN 61 (DELHI) 28. THE LEARNED COMMISSIONER OF INCOME TAX ALSO ARG UED AT LENGTH ON MERITS OF THE CASE. HE HAS TAKEN US TO T HE DETAILED QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER TO EL ICIT INFORMATION REGARDING THE GENUINENESS OF THE DONATIONS RECEIVED BY THE ASSESSEES AND REPLY GIVEN BY THE ASSESSEES TO THE Q UESTIONS. EVEN THOUGH THE ASSESSEES HAVE EXPLAINED THAT THE D ONORS ARE THEIR FRIENDS, THEY ARE NOT IN A POSITION TO FURNISH EVEN THE ADDRESS OF THE DONORS, NOT TO SPEAK ABOUT ANY OTHER DETAILS. THE DETAILED ORDER OF 17 I.T.A. NOS.1691 TO 1695/MDS/2013 THE ASSESSING OFFICER CLEARLY BRING OUT THE CASE TH AT THE STORY OF GIFTS IS MADE BY HIM ONLY AS A MAKE-BELIEVE ARRANGEMENT. THE GIFTS CANNOT BE TREATED AS GENUINE ONLY FOR THE REASON TH AT THE AMOUNTS WERE TRANSMITTED THROUGH BANKING CHANNELS. AT THE BEST, IT CAN ONLY BE ONE OF THE ARGUMENTS THAT COULD BE RELIED ON BY THE ASSESSEES. BUT, ALL THE DETAILS FURNISHED BY THE ASSESSEES IN THESE CASES HAVE BEEN BLOWN OUT BY THE REPLIES GIVEN BY THE ASSESSEE S TO THE DETAILED QUESTIONS PUT BY THE ASSESSING AUTHORITY B EFORE THEM. 29. THE LEARNED COMMISSIONER OF INCOME TAX HAS RELI ED ON THE FOLLOWING DECISIONS TO SUPPORT THE ADDITIONS MADE B Y THE ASSESSING AUTHORITY IN THE CASE OF RECEIPT OF GIFTS:- 1. COMMISSIONER OF INCOME TAX V. P. MOHANAKALA (200 7) 291 ITR 278 (SC) 2. SUBHASH CHANDER SEKHRI V. DEPUTY COMMISSIONER OF INCOME TAX (2007) 290 ITR 300 (P&H) 3. TIRATH RAM GUPTA V. COMMISSIONER OF INCOME TAX (2008) 304 ITR 145 (P&H) 30. REGARDING COST OF CONSTRUCTION OF THE BUILDING, THE LEARNED COMMISSIONER OF INCOME TAX EXPLAINED THAT THE REPOR T OF THE DVO WAS NOT AVAILABLE AT THE TIME OF ORIGINAL ASSESSMEN TS UNDER SECTION 143(3) AND THEREFORE, THE SAME SHOULD BE CONSIDERED AS A FRESH MATERIAL AND THEREFORE, THE ASSESSING OFFICER IS JU STIFIED IN MAKING THE ADDITIONS ON THE BASIS OF THE REPORT OF THE DVO . HE FURTHER 18 I.T.A. NOS.1691 TO 1695/MDS/2013 CONTENDED THAT THE COMMISSIONER OF INCOME TAX (APPE ALS) HAS ALREADY GIVEN SUFFICIENT RELIEF AND THEREFORE, BALA NCE ADDITION HAS TO BE UPHELD. 31. THE LEARNED COMMISSIONER OF INCOME TAX HAS ARGU ED AT LENGTH ON WHAT IS INCRIMINATING MATERIAL COLLECTE D IN THE COURSE OF SEARCH. HE EXPLAINED THAT THE VULNERABILITY OF THE GIFTS DISCLOSED BY THE ASSESSEES IN THE RETURNS FILED BY THEM, WAS BRO UGHT TO LIGHT ONLY BECAUSE OF THE SEARCH AND SUBSEQUENT ENQUIRY. AS S UCH, THE GIFTS MUST BE TREATED AS INCRIMINATING MATERIALS COLLECTE D IN THE COURSE OF SEARCH. THE EARLIER ASSESSMENTS WERE COMPLETED UND ER SECTION 143(1) AND EVEN IF THE ASSESSMENTS WERE COMPLETED U NDER SECTION 143(3), NO MIND WAS APPLIED BY THE ASSESSING OFFICE R ON THIS PARTICULAR ISSUE AND AS SUCH, THE QUESTION OF GIFT HAS BECOME A MATTER FOR ACTIVE CONSIDERATION AS A RESULT OF SEAR CH ALONE AND THEREFORE, IT SHOULD BE TREATED AS INCRIMINATING MA TERIAL JUSTIFYING REASSESSMENT UNDER SECTION 153A. 32. WE HEARD BOTH SIDES IN DETAIL, PURSUED THE RECO RDS OF THE CASES AND THE PAPER-BOOKS FILED BEFORE US. WE HAVE ALSO GONE THROUGH VARIOUS DECISIONS CITED BEFORE US BY BOTH T HE SIDES. 19 I.T.A. NOS.1691 TO 1695/MDS/2013 33. AS A MATTER OF FACT, WE HAVE TO STATE THAT WHEN THE SEARCH WAS CONDUCTED ON 29.1.2009, THE ASSESSEES HEREIN HA D ALREADY FILED THE RETURNS OF INCOME FOR THE IMPUGNED ASSESS MENT YEARS 2003-04, 2004-05 AND 2005-06. THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 HAD ALREADY BE EN COMPLETED UNDER SECTION 143(1) AND INTIMATIONS WERE SERVED ON THE ASSESSEES. THE ASSESSMENT FOR ASSESSMENT YEAR 2005- 06 WAS CONCLUDED UNDER SECTION 143(3). THEREFORE, IT IS T O BE SEEN THAT THE SEARCH HAS BEEN CONDUCTED AFTER THE ASSESSEES HAD F ILED RETURNS FOR THE IMPUGNED ASSESSMENT YEARS AND RESPECTIVE ASSESS MENTS WERE COMPLETED. 34. THEREFORE, THE CRUCIAL FACT TO BE RECORDED IN T HE PRESENT CASE IS THAT NO ASSESSMENT OR REASSESSMENT WAS PENDING AT THE TIME OF SEARCH CARRIED OUT ON 29.1.2009 OR IN THE COURSE OF ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 153A. WHEN THI S CRUCIAL FACT IS TAKEN INTO CONSIDERATION, WE HAVE TO LOOK INTO THE DECISION OF ITAT SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGIS TICS LTD. V. DEPUTY COMMISSIONER OF INCOME TAX REPORTED IN (2012 ) 137 ITD 287 (MUMBAI) (SB). IN THE CITED SPECIAL BENCH CASE , THE TRIBUNAL HAS MADE IT CLEAR THAT AN ASSESSMENT UNDER SECTION 153A EMPOWERS AN ASSESSING OFFICER TO COMPLETE THE ASSES SMENT FOR SIX 20 I.T.A. NOS.1691 TO 1695/MDS/2013 CONSECUTIVE ASSESSMENT YEARS. IT IS ALSO CLARIFIED THAT ASSESSMENTS AS WELL AS REASSESSMENTS ARE POSSIBLE IN THE CASE O F PENDING ASSESSMENTS. IT IS FURTHER CLARIFIED THAT WHERE TH E ASSESSMENTS ARE COMPLETED AND NO ASSESSMENT IS PENDING AT THE TIME OF ASSESSMENT UNDER SECTION 153A, REASSESSMENT CAN BE MADE ONLY I F INCRIMINATING MATERIALS ARE COLLECTED IN THE COURSE OF SEARCH AND THE ITEMS CONCLUDED IN THE EARLIER ASSESSMENTS CANNOT B E RECONSIDERED THROUGH A REASSESSMENT. 35. THE HONBLE RAJASTHAN HIGH COURT HAS HELD THE S AME VIEW IN THE CASE OF JAI STEEL (INDIA) V. ASSISTANT COMMISSI ONER OF INCOME TAX (2013) 88 DTR (RAJ) 1. THE COURT HAS CLEARLY H ELD THAT IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SEARCH OR REQUISITION, THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSES SMENT DOES NOT ARISE. THE COURT HAS DECLARED THAT THE UNDERLY ING PURPOSE OF MAKING ASSESSMENT OF TOTAL INCOME UNDER SECTION 153 A IS TO ASSESS INCOME WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BE EN DISCLOSED. SECOND PROVISO TO SECTION 153A PROVIDING FOR ABATEM ENT OF ASSESSMENT OR REASSESSMENT IS APPLICABLE ONLY IN PR OCEEDINGS PENDING ON THE DATE OF SEARCH OR REQUISITION FOR TH E REASON THAT THERE CANNOT BE TWO ASSESSMENTS FOR A SINGLE ASSESSMENT Y EAR. IN ALL THE DECISIONS OF THE TRIBUNAL CITED BY THE LEARNED COUN SEL APPEARING FOR 21 I.T.A. NOS.1691 TO 1695/MDS/2013 THE ASSESSEES, THE ABOVE DECISION OF SPECIAL BENCH AND THE DECISION OF HIGH COURTS HAVE BEEN FOLLOWED AND THE TRIBUNAL HAS CONSISTENTLY HELD THAT A REASSESSMENT OF THE CONCLU DED ASSESSMENT IS PERMITTED IN AN ASSESSMENT UNDER SECTION 153A ON LY IF INCRIMINATING MATERIALS WERE FOUND IN THE COURSE OF SEARCH. 36. IN THE PRESENT CASE, THE QUESTION IS WHETHER AN Y INCRIMINATING MATERIALS WERE FOUND IN THE COURSE OF SEARCH. THE DETAILS OF THE RETURNS FILED BY THE ASSESSEES FOR T HE IMPUGNED ASSESSMENT YEARS 2003-04, 2004-05 AND 2005-06 CLEAR LY SHOW THAT THE ASSESSEES HAVE FILED COPIES OF CAPITAL ACCOUNTS WITH THEIR RETURNS AND THE CAPITAL ACCOUNTS OF THE ASSESSEES H AVE CLEARLY DESCRIBED THE GIFTS RECEIVED FROM THEIR FRIENDS IN THE RESPECTIVE PREVIOUS YEARS. THEREFORE, THERE IS NO CASE THAT T HE FACTUM OF GIFTS WAS NOT DISCLOSED BY THE ASSESSEES. THE DETAILS OF THE GIFTS WERE FURNISHED BY THE ASSESSEES ALONG WITH RETURNS OF IN COME FILED BEFORE THE ASSESSING AUTHORITY. THEREFORE, THESE GIFTS, A LREADY DISCLOSED IN THE RETURNS FILED BEFORE SEARCH UPON WHICH ASSESSME NTS HAVE ALSO BEEN COMPLETED, CANNOT BE TREATED AS INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH. GIFTS WERE FAIRLY DISCLOS ED BEFORE THE DEPARTMENT. THE FACTUM OF GIFTS HAS NOT COME OUT F ROM ANY 22 I.T.A. NOS.1691 TO 1695/MDS/2013 INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEAR CH. THEY WERE ALREADY AVAILABLE IN THE RETURNS FILED BEFORE THE A SSESSING AUTHORITY. 37. WE FIND THAT NO INCRIMINATING MATERIAL WAS FOUN D IN THE COURSE OF SEARCH AND PARTICULARS/DETAILS WERE FILED ALONG WITH RETURNS OF INCOME WHOSE ASSESSMENTS WERE ALREADY COMPLETED. THEREFORE, THERE IS NO JUSTIFICATION FOR THE ASSESSING OFFICER TO RECONSIDER THOSE ISSUES IN THE ASSESSMENTS PASSED UNDER SECTION 153A . IN FACT, THE ASSESSING OFFICER IS CONTEMPLATING A REVIEW OF THE ASSESSMENTS ALREADY MADE BY HIM PRIOR TO THE DATE OF SEARCH. A REVIEW IS NOT PERMISSIBLE UNDER THE STATUTE. WHAT IS INTERESTING IN THE PRESENT CASE IS THAT THE ASSESSMENTS FOR ASSESSMENT YEAR 20 05-06 HAVE BEEN COMPLETED UNDER SECTION 143(3). INSPITE OF TH E SCRUTINY ASSESSMENT, REVENUE HAS NOT SOUGHT INVESTIGATION ON THE QUESTION OF GIFTS. THEREFORE, THERE CANNOT BE SECOND INNING IN THE COURSE OF ASSESSMENT CONTEMPLATED UNDER SECTION 153A. 38. IN ALMOST ALL THE DECISIONS CITED BY THE LEARNE D COMMISSIONER OF INCOME TAX, INCRIMINATING MATERIALS WERE COLLECTED IN THE COURSE OF SEARCH. IT IS IN THAT CONTEXT, TH E HIGH COURTS AND TRIBUNAL HAVE HELD THAT REASSESSMENT OF SUCH ITEMS ARE PERMISSIBLE IN A PROCEEDING UNDER SECTION 153A. 23 I.T.A. NOS.1691 TO 1695/MDS/2013 39. IN THE CASE OF COMMISSIONER OF INCOME TAX V. CH ETAN DAS LACHMAN DAS (2012) 211 TAXMAN 61 (DELHI), WHAT THE HONBLE DELHI HIGH COURT HELD IS THAT SEIZED MATERIAL CAN B E RELIED UPON BY THE ASSESSING OFFICER TO DRAW INFERENCE THAT SIMILA R TRANSACTIONS COULD HAVE BEEN TAKEN PLACE IN THE WHOLE OF THE SIX YEARS PERIOD COVERED BY SECTION 153A. IT IS NOT A CASE WHERE TH E HIGH COURT HAS CONSIDERED THE SCOPE OF REASSESSMENT PERMISSIBLE UN DER SECTION 153A. THE SAID DECISION IS NOT, THEREFORE, APPLICA BLE TO THE PRESENT CASE. SIMILARLY, IN THE CASE OF COMMISSIONER OF IN COME TAX V. ANIL KUMAR BHATIA (2013) 352 ITR 493 (DELHI), DOCUMENT W AS SEIZED IN THE COURSE OF SEARCH. THE DEBTOR UNDERTOOK TO FORE GO ALL HER RIGHTS IN THE PROPERTY IF SHE FAILED TO RETURN THE LOAN WI THIN THE STIPULATED PERIOD. THE SAID DOCUMENT WAS NOT AVAILABLE BEFORE THE AUTHORITIES BEFORE SEARCH. THE HONBLE ANDHRA PRADESH HIGH COU RT IN THE CASE OF GOPAL LAL BHADRUKA V. DEPUTY COMMISSIONER OF INC OME TAX (2012) 346 ITR 106 (AP) HAS CONSIDERED ANOTHER ASPE CT OF ASSESSMENT UNDER SECTION 153A; IN THAT CASE ALSO, R ECEIPT OF ON- MONEY ON PROPERTY SALE WAS DISCOVERED IN THE CASE O F SEARCH. 40. ITAT, AHMEDABAD BENCH IN THE CASE OF DR. MANSUK H KANJIBHAI SHAH V. ASSISTANT COMMISSIONER OF INCOME TAX (2011) 129 ITD 376 (2010) HAS CONSIDERED THE QUESTION OF C OMPLETING 24 I.T.A. NOS.1691 TO 1695/MDS/2013 ASSESSMENT FOR SIX ASSESSMENT YEARS CONSECUTIVE TO A SEARCH UNDER SECTION 153A. THE QUESTION AROSE BEFORE THE TRIBUNAL WAS WHETHER THE ASSESSMENT UNDER SECTION 153A SHOULD BE CONFINED TO THE ASSESSMENT YEAR FOR WHICH PARTICULARS WERE FOUN D IN THE COURSE OF SEARCH, AND, WHETHER ASSESSMENT COULD BE MADE IN RESPECT OF THE REMAINING FIVE ASSESSMENT YEARS. THE SAID DECI SION IS NOT APPLICABLE TO THE PRESENT CASE. 41. THE DECISION OF ITAT, DELHI BENCH D IN THE CA SE OF SHIVNATH RAI HARNARAIN (INDIA) LTD. V. DEPUTY COMMI SSIONER OF INCOME TAX (2009) 117 ITD 74 (DELHI) IS NOT RELEVAN T IN THE LIGHT OF THE SPECIAL BENCH DECISION OF TRIBUNAL AND ALSO IN THE LIGHT OF THE DECISION OF HONBLE RAJASTHAN HIGH COURT. 42. THEREFORE, IN SHORT, TO SUMMARIZE OUR FINDING, NO INCRIMINATING MATERIALS WERE FOUND IN THE COURSE OF SEARCH AND AS SUCH, THE QUESTION OF GIFTS CANNOT BE CONSIDERED IN THE ASSESSMENT COMPLETED UNDER SECTION 153A, SINCE THE RETURNS WER E FILED AND ASSESSMENTS WERE COMPLETED THEREON, WELL BEFORE THE SEARCH. THIS FINDING IS ARRIVED AT IN THE LIGHT OF THE SPECIAL B ENCH DECISION REPORTED IN (2012) 137 ITD 287 (MUMBAI) (SB) AND T HE DECISION OF THE HONBLE HIGH COURT OF RAJASTHAN IN THE CASE OF JAI STEEL (INDIA) V. ASSISTANT COMMISSIONER OF INCOME TAX (2013) 88 D TR (RAJ). 25 I.T.A. NOS.1691 TO 1695/MDS/2013 43. ACCORDINGLY, WE DIRECT THE ASSESSING AUTHORITY TO DELETE ALL THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEES AG AINST THE GIFTS. 44. THE SAME REASONING APPLIES TO THE ADDITION MADE ON ACCOUNT OF COST OF CONSTRUCTION OF THE COMMERCIAL BUILDING AS WELL. WHEN THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3), THE REPORT OF THE DVO WAS NOT AVAILABLE BEFORE THE ASSESSING OFFICER. IT CAME TO THE ASSESSING OFFICER THEREAFTER. BUT, THE SAID REPORT OF THE DVO IS NOT AN INCRIMINATING MATERIAL FOUND OUT IN THE COURSE O F SEARCH CONDUCTED UNDER SECTION 132. THEREFORE, THE REASSE SSMENT ON THAT GROUND IS NOT PERMISSIBLE IN LAW. THE HONBLE MADR AS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V. V.T. RAJE NDRAN (2007) 288 ITR 312 (MAD) HAS HELD THAT DIFFERENCE BETWEEN THE COST SHOWN BY THE ASSESSEE AND ESTIMATE BY DVO CANNOT BE A GRO UND FOR REASSESSMENT. ACCORDINGLY, WE HOLD THAT THE ADDITI ONS SUSTAINED BY THE COMMISSIONER OF INCOME TAX (APPEALS), AGAINST C OST OF CONSTRUCTION, IS ALSO NOT JUSTIFIED IN LAW. THOSE ADDITIONS ARE ALSO DELETED. 45. AS THE ISSUES RAISED IN THESE APPEALS HAVE BEEN ADJUDICATED ON THE LEGAL GROUND RAISED BY THE ASSESSEES, WE HAV E NOT GONE IN DETAIL ON THE ARGUMENTS RAISED BY BOTH SIDES ON MER IT OF THE CASE. 26 I.T.A. NOS.1691 TO 1695/MDS/2013 46. IN RESULT, THESE APPEALS FILED BY THE ASSESSEES ARE ALLOWED. ORDERS PRONOUNCED ON FRIDAY, THE 24 TH OF JANUARY, 2014 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR. O.K. NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 24 TH JANUARY, 2014. KRI. COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT, CENTR AL-III, CHENNAI 4. CIT(A), SA LEM 5. DR 6. GF.