Smt. Nita Sethia , Kolkata V. DCIT, Central Circle - 3(3), , Kolkata

ITA 1994/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0780 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Document seized; Documents seized
• Section: 143(3); 153A; 68; 132; 15

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 1994 / KOL / 20 18 ASSESSMENT YEAR :2012-13 SMT. NITA SETHIA 5, JANKI SHAH ROAD, 1 ST FLOOR, HASTINGS, KOLKATA-700022 [ PAN NO.AJWPS 8335 H ] V/S . DCIT, CENTRAL CIRCLE- 3(3), 110, SHANTI PALLY, AAYAKAR BHAVAN, POORVA, E.M. BYE PASS, NR. RUBY HOSPITAL, KOLKATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.M. SURANA, ADVOCATE /BY RESPONDENT SHRI P.K. SRIHARI, CIT-DR /DATE OF HEARING 12-11-2018 /DATE OF PRONOUNCEMENT 30-11-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2012 -13 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATAS ORDER DATED 31.08.2018 PASSED IN CASE NO.930/ACIT,CC-3(3)/CIT(A)-21/KOL/20 15-16, INVOLVING PROCEEDINGS U/S 153A R.W.S.143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE RAISES TWO SUBSTANTIVE GROUNDS IN H ER INSTANT APPEAL. HER FORMER LEGAL GRIEVANCE CHALLENGES VALIDITY OF SEC. 153A PROCEEDINGS IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND OR SEIZ ED DURING THE COURSE OF SEARCH. THIS FOLLOWS HER LATTER SUBSTANTIVE GROUND ON MERITS THAT THE ASSESSING OFFICER AND THE CIT(A) HAVE ERRED IN LAW AS WELL AS ON FACTS IN TREATING LONG ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 2 TERM CAPITAL GAINS (LTCG) IN QUESTION OF 61,62,460/- FROM SALE OF SHARES IN M/S DIGNITY SUPPLIERS P LTD. AS BOGUS GIVING RISE T O SEC. 68 ADDITION IN ISSUE. 3. THIS ASSESSEE IS ASSESSED AS AN INDIVIDUAL. SHE FILED HER REGULAR RETURN ON 30.07.2012. THE SAME STOOD SUMMARILY PROCESSED. THERE CAN HARDLY BE ANY DISPUTE THAT THE LAST DATE OF ISSUANCE OF U/S 1 43(2) OF NOTICE IN HER CASE WAS 30.09.2013 I.E. WITHIN SIX MONTHS FROM THE END OF THE FINANCIAL YEAR OF FILING RETURN. THIS FOLLOWED THE DEPARTMENTS SEARC H ACTION IN HER CASE ON 19.03.2014. THE ASSESSING OFFICER INITIATED SEC. 15 3A PROCEEDINGS VIDE NOTICE(S) DATED 7.14/09/2015. THE ASSESSEE FILED HE R RESPONSE THAT THE DATED 28.08.2015 THAT HER ORIGINAL RETURN (SUPRA) STATING INCOME OF 8,23,163/- BE TREATED AS THE ONE FILED IN FURTHERANCE TO SEC 153A PROCEEDING. SHE FURTHER OBJECTED TO THE IMPUGNED PROCEEDING FOR LACK OF ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH CONDUCT ED IN HER CASE. THE ASSESSING OFFICER REJECTED THE SAME QUOTING HON'BLE DELHI HIGH COURTS DECISION IN CIT VS. ANIL KUMAR BHATIA (2012) 24 TAXMANN.COM 98 (DEL). HE HELD THAT IT IS NOT MANDATORY TO ASSES OR REASSESS ANY UNDISCLOSED INCOME IN SEC. 153 PROCEEDINGS SINCE THE SAME ARE MEANT TO AS SESS OR REASSESS AN ASSESSEES TOTAL INCOME. HE THEREAFTER TREATED THE ASSESSEES IMPUGNED LTCG TO BE BOGUS IN THE NATURE OF UNEXPLAINED CASH CREDITS IN ASSESSMENT ORDER DATED 10.03.2016. 4. THE ASSESSEE PREFERRED AN APPEAL SAME VERY TWIN SUBSTANTIVE GROUNDS. THE CIT(A) HOLDS THAT ASSESSING OFFICER HAS SUFFICI ENTLY DEALT WITH BOTH THE ISSUES. HE HAS THEREFORE AFFIRMED ASSESSING OFFICER S FINDINGS. ALL THIS LEAVES THE ASSESSEE AGGRIEVED. 5. WE HAVE HEARD BOTH THE LEARNED REPRESENTATIVES R EITERATING THEIR RESPECTIVE STANDS AGAINST AND IN SUPPORT OF LOWER A UTHORITIES ACTION INITIATING SEC. 153A PROCEEDINGS. FIRST AND FOREMOST QUESTION THAT ARISES FOR OUR APT ADJUDICATION IS AS TO WHETHER SEC. 153A PROCEEDINGS COULD BE INITIATED AGAINST THE ASSESSEE IN ABSENCE OF ANY INCRIMINATING MATERI AL FOUND OR SEIZED DURING THE COURSE OF SEARCH. THE REVENUES CASE AS PER ASS ESSMENT FINDINGS IS THAT SEC. 153A IS MEANT TO ASSESS OR REASSESS IN ASSESSE ES TOTAL INCOME RATHER ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 3 THAN ONLY UNDISCLOSED INCOME. IT SEEKS THE HIGHLIGH T THE FACT THAT ASSESSEES LTCGS HAVE INDICATED A COLLUSION WITH VARIOUS ENTRY OPERATORS PROVIDING BOGUS ENTRIES IN THE NATURE OF LTCG. THERE IS NO SU CH SPECIFIC MATERIAL FORTHCOMING FROM THE CASE FILE DURING THE COURSE OF HEARING. IT IS THEREFORE A CASE WHEREIN THE ASSESSING OFFICER IS HIMSELF VERY CLEAR THAT NO SUCH INCRIMINATING MATERIAL OR EVIDENCE FOUND OR SEIZED DURING THE COURSE OF SEARCH IS REQUIRED FOR INITIATING THE IMPUGNED PROCEEDINGS . WE FIND NO MERIT IN REVENUES INSTANT ARGUMENTS. THIS TRIBUNAL CO-ORDIN ATE BENCHS DECISION IN IT(SS)A NO. 01 & 02/KOL/2018 IN M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC- 3(3) KOL DECIDED ON 05.10.2018 READS AS UNDER:- 5. WE ALSO NOTICE THAT THE CIT(A)S FINDINGS EXTRAC TED IN PRECEDING PARAGRAPHS HAVE MADE IT CLEAR THAT THE SAID SEIZED DOCUMENTS WERE N OT IN THE NATURE OF INCRIMINATING MATERIAL WHICH COULD BE USED AGAINST THE INSTANT TA XPAYER. WE MAKE IT CLEAR THAT THE ASSESSEES STAND TIME AND AGAIN IN FURTHERANCE TO S EC. 153C NOTICE HAS DISPUTED THE SAID DOCUMENTS NATURE TO BE INCRIMINATING AS PER C OPIES OF NECESSARY CORRESPONDENCE IN THIS REGARD DATED 14.10.2015, 13.11.2015 & 04.03 .2016 FILED IN PAPER BOOK AT PAGES 93 TO 126. IT IS THEREFORE CLEAR THAT BOTH THE LOWE R AUTHORITIES HAVE FRAMED IMPUGNED ASSESSMENT IN THE ABSENCE OF ANY INCRIMINATING MATE RIALS FOUND OR SEIZED DURING THE COURSE OF SEARCH IN ISSUE. THIS TRIBUNALS CO-ORDIN ATE BENCHS DECISION IN ACIT VS. M/S SETHIA AGROTECH LTD. IT(SS)A NO.91/KOL/2017 DECIDED ON 01.12.2017 PERTAINING TO THE VERY SEARCH HAS QUASHED SIMILAR ASSESSMENTS TO BE U NSUSTAINABLE AS UNDER:- 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXIST ENCE OF ANY INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON THE DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASST YEAR 2010-11 WAS ORIGIN ALLY COMPLETED U/S 143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 1 43(2) OF THE ACT HAD EXPIRED AND HENCE IT FALLS UNDER CONCLUDED PROCEEDING , AS ON T HE DATE OF SEARCH. WE HOLD THAT THE LEGISLATURE DOES NOT DIFFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. HENCE UNLE SS THERE IS ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABL E TO SUCH CONCLUDED YEAR, THE STATUTE DOES NOT CONFER ANY POWER ON THE LD AO TO D ISTURB THE FINDINGS GIVEN THEREON AND INCOME DETERMINED THEREON, AS FINALITY HAD ALRE ADY BEEN REACHED THEREON, AND SUCH PROCEEDING WAS NOT PENDING ON THE DATE OF SEAR CH TO GET ITSELF ABATED. THE PROVISIONS OF SECTION 153A OF THE ACT ARE REPRODUCE D HEREUNDER FOR THE SAKE OF CONVENIENCE :- '[ASSESSMENT IN CASE OF SEARCH OR REQUISITION 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN S ECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURN ISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RE SPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 4 AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING F ORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SH ALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESS MENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASS ESSMENT YEARS:' 8.1. WE FIND THAT THE CO-ORDINATE BENCH OF DELHI TR IBUNAL IN THE CASE OF DY. CIT V. AGGARWAL ENTERTAINMENT (P.) LTD REPORTED IN [2016] 72 TAXMANN.COM 340 (DELHI - TRIB.) HAD ADDRESSED THIS ASPECT. THE RELEVANT HEADNOTES I S REPRODUCED BELOW:- 'SECTION 153A, READ WITH SECTION 143, OF THE INCOME -TAX ACT, 1961-SEARCH AND SEIZURE - ASSESSMENT IN CASE OF (IN CASE OF SECTION 143(1) ASSESSMENT)-ASSESSMENT YEAR 2004-05- WHETHER ASSESSMENT IN RESPECT OF WHIC H RETURN HAS BEEN PROCESSED UNDER SECTION 143(1), CANNOT BE REGARDED AS PENDING FOR PURPOSE OF SECTION 153A AS ASSESSING OFFICER IS NOT REQUIRED TO DO ANYTHING FU RTHER ABOUT SUCH A RETURN AND, THUS, SAID ASSESSMENT CANNOT BE REOPENED IN EXERCISE OF P OWER OF SECTION 153A-HELD YES (PARAS 10 AND 12) (IN FAVOUR OF ASSESSEE) .' 8.2. WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/KOL/2011 DATED 9.12.2015 REPORTED IN 2016-TIOL-167- ITAT-KOL HAD EXPLAINED THE AFORESAID PROVISIONS AS BELOW :- ' 6.4 IN OUR OPINION, THE SCHEME OF ASSESSMENT PROCEE DINGS SHOULD BE UNDERSTOOD IN THE FOLLOWING MANNER PURSUANT TO THE SEARCH CONDUCT ED U/S. 132 OF THE ACT :- (A) NOTICE U/S. 153A OF THE ACT WOULD BE ISSUED ON TH E PERSON ON WHOM THE WARRANT OF AUTHORIZATION U/S. 132 OF THE ACT WAS ISSUED FOR TH E SIX ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH AND ASSESSMENTS THEREON WOULD BE COMPLETED U/S. 153A OF THE ACT FOR THOSE SIX ASSESSMENT YEARS. (B) IN RESPECT OF THE YEAR OF SEARCH, NOTICE U/S. 143(2) OF THE ACT WOULD BE ISSUED AND ASSESSMENT THEREON WOULD BE COMPLETED U/S. 143(3) O F THE ACT. (C) IN RESPECT OF CONCLUDED ASSESSMENTS PRIOR TO THE YE AR OF SEARCH, NO ADDITION COULD BE MADE IN THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE REL EVANT ASSESSMENT YEAR. (D) PURSUANT TO THE SEARCH U/S. 132 OF THE ACT, THE P ENDING PROCEEDINGS WOULD GET ABATED. IN RESPECT OF ABATED ASSESSMENTS, THE TOTAL INCOME NEEDS TO BE DETERMINED AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A AND OTHER PROVISIONS OF THE ACT. 6.4.1 THE CONCLUDED ASSESSMENTS FOR THE PURPOSE OF SECTION 153A OF THE ACT SHALL BE - (I) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY CO MPLETED U/S. 143(1) AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT HAS EXPIRED OR; (II) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY CO MPLETED U/S. 143(3) OF THE ACT ; UNLESS THEY ARE REOPENED U/S. 147 OF THE ACT FOR SO ME OTHER PURPOSE IN BOTH THE SCENARIOS STATED ABOVE. 6.4.2 THE SCHEME OF ASSESSMENT PROCEEDINGS CONTEMPL ATED U/S. 153A OF THE ACT ARE TOTALLY DIFFERENT AND DISTINCT FROM THE PROCEEDINGS CONTEMPLATED U/S. 147 OF THE ACT AND ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 5 THESE PROCEDURES OF ASSESSMENT OPERATE IN DIFFERENT FIELDS AND HAVE DIFFERENT PURPOSES TO BE FULFILLED ALTOGETHER. 6.4.3 THE EXPRESSION 'ASSESS OR REASSESS' STATED IN SECTION 153A(1)(B) HAS TO BE UNDERSTOOD AS BELOW:- ' ASSESS ' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF ABAT ED ASSESSMENT YEARS IRRESPECTIVE OF THE FACT WHETHER THERE ARE ANY INCR IMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO RELEVANT ASSESSMEN T YEARS ; ' REASSESS ' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF CONC LUDED ASSESSMENT YEARS WHERE INCRIMINATING MATERIALS WERE FOUND DURI NG THE COURSE OF SEARCH IN RESPECT OF THE RELEVANT ASSESSMENT YEAR. ' 8.3. WE ALSO FIND THAT RECENTLY THE HONBLE DELHI H IGH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) H ELD AS UNDER :- ' 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF TH E ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE P ERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPU TED BY THE LD AOS AS A FRESH EXERCISE. (III) THE LD AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE LD AO HAS THE POWER T O ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFO REMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEAR S. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH , OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE LD AO WHICH CAN BE R ELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASS ESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COM PLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMP LETE ASSESSMENT PROCEEDINGS. (VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A ME RGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT O N THE RECORD OF THE LD AO. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY T HE LD AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITIO N OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEAR CH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE O F ORIGINAL ASSESSMENT.' 38. THE PRESENT APPEALS CONCERN AYS 2002-03, 2005-0 6 AND 2006-07, ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPL ETED. SINCE NO INCRIMINATING ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 6 MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITI ONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 8.4. WE FIND THAT THE DECISION RELIED UPON BY THE L D DR IN THE CASE OF CIT VS ANIL KUMAR BHATIA REPORTED IN (2013) 352 ITR 493 (DEL) DOES NO T IN ANY MANNER ADVANCE THE CASE OF THE REVENUE AS ADMITTEDLY THE HONBLE DELHI HIGH COURT IN PARA 24 OF ITS ORDER HAD HELD AS UNDER:- 24. WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRI MINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE, THEREFORE, EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN BE INVOKED EVEN IN SUCH A SITUATION. THAT QUESTION IS THEREFO RE LEFT OPEN. 8.5. THE LD DR ALSO RELIED ON THE RECENT DECISION O F THE HONBLE KERALA HIGH COURT IN THE CASE OF E.N.GOPAKUMAR VS CIT REPORTED IN (2016) 75 TAXMANN.COM 215 (KERALA) IN SUPPORT OF HIS CONTENTIONS. WE FIND THAT THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (201 6) 380 ITR 573 (DEL) HAD DULY CONSIDERED THE DECISIONS OF CIT VS ANIL KUMAR BHATI A REPORTED IN (2013) 352 ITR 493 (DEL) ; CIT VS CHETAN DAS LACHMAN DAS REPORTED IN (2012) 211 TAXMAN 61 (DEL HC) ; MADUGULA VENU VS DIT REPORTED IN (2013) 215 TAXMAN 298 (DEL HC) ; CANARA HOUSING DEVELOPMENT CO. VS DCIT REPORTED IN (2014) 49 TAXMANN.COM 98 (KAR HC) ; FILATEX INDIA LTD VS CIT REPORTED IN (2014) 229 TAX MAN 555 (DEL HC) ; JAI STEEL (INDIA) VS ACIT REPORTED IN (2013) 219 TAXMAN 223 ( DEL HC) ; CIT VS MURLI AGRO PRODUCTS LTD REPORTED IN (2014) 49 TAXMANN.COM 172 (BOM HC) ; CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD REPORTED IN (2015) 374 ITR 645 (BOM HC) AND ALL CARGO GLOBAL LOGISTICS LTD VS DCIT REPO RTED IN (2012) 137 ITD 287 (MUM ITAT) (SB). WE ALSO FIND THAT AGAINST THE DECISION OF THE HONB LE DELHI HIGH COURT IN 380 ITR 573 (DEL) , THE REVENUE PREFERRED SPECIAL LEAVE PETITIO N BEFORE THE HONBLE SUPREME COURT AND THE SAME WAS DISMISSED BY THE APEX COURT WHICH IS REPORTED IN 380 ITR (ST.) 4 (SC). HENCE IT COULD BE SAFELY CONCLUDED THAT THE DECISION OF HONBLE DELHI HC IN THE CASE OF KABUL CHAWLA SUPRA WOULD HAVE TO BE CONSIDERED ON THE IMPUGNED ISSUE AND IN ANY CASE, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS VEGETABLE PRODUCTS LTD REPORTED IN 88 ITR 192 (SC) HAD HELD T HAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. 8.6. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL H IGH COURT RECENTLY IN THE CASE OF PRINCIPAL CIT VS M/S SALASAR STOCK BROKING LTD IN G .A.NO. 1929 OF 2016 ITAT NO. 264 OF 2016 DATED 24.8.2016 HAD ENDORSED THE AFORES AID VIEW OF HONBLE DELHI HIGH COURT IN KABUL CHAWLAS CASE AND ALSO PLACED RELIAN CE ON ITS OWN DECISION IN THE CASE OF CIT VS VEERPRABHU MARKETING LTD REPORTED IN (2016) 73 TAXMANN.COM 149 (CAL HC). 8.7. WE FIND THAT THE PROVISIONS OF SECTION 132 OF THE ACT RELIED UPON BY THE LD DR WOULD BE RELEVANT ONLY FOR THE PURPOSE OF CONDUCTIN G THE SEARCH ACTION AND INITIATING PROCEEDINGS U/S 153A OF THE ACT. ONCE THE PROCEEDI NGS U/S 153A OF THE ACT ARE INITIATED, WHICH ARE SPECIAL PROCEEDINGS, THE LEGIS LATURE IN ITS WISDOM BIFURCATES DIFFERENTIAL TREATMENTS FOR ABATED ASSESSMENTS AND UNABATED ASSESSMENTS. AT THE COST OF REPETITION, WE STATE THAT IN RESPECT OF ABA TED ASSESSMENTS (I.E PENDING PROCEEDINGS ON THE DATE OF SEARCH) , FRESH ASSESSME NTS ARE TO BE FRAMED BY THE LD AO U/S 153A OF THE ACT WHICH WOULD HAVE A BEARING O N THE DETERMINATION OF TOTAL INCOME BY CONSIDERING ALL THE ASPECTS, WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DOES NOT HAVE ANY RELEVANCE. HOWEVER, IN RESPECT OF UNABATED ASSESSMENTS, THE LEGISLATURE HAD CONFERRED POWERS O N THE LD AO TO JUST FOLLOW THE ITA NO.1994/KOL/2018 A.Y. 2012- 13 SMT.NITA SETHIA VS. DCIT, CC-3(3), KOL. PAGE 7 ASSESSMENTS ALREADY CONCLUDED UNLESS THERE IS AN IN CRIMINATING MATERIAL FOUND IN THE SEARCH TO DISTURB THE SAID CONCLUDED ASSESSMENT. I N OUR CONSIDERED OPINION, THIS WOULD BE THE CORRECT UNDERSTANDING OF THE PROVISION S OF SECTION 153A OF THE ACT, AS OTHERWISE, THE NECESSITY OF BIFURCATION OF ABATED A ND UNABATED ASSESSMENTS IN SECTION 153A OF THE ACT WOULD BECOME REDUNDANT AND WOULD LOSE ITS RELEVANCE. HENCE THE ARGUMENTS ADVANCED BY THE LD DR IN THIS R EGARD DESERVES TO BE DISMISSED. 8.8. IN VIEW OF THE AFORESAID FINDINGS AND RESPECTF ULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE ASSESSMEN T FRAMED U/S 143(1) OF THE ACT FOR THE ASST YEAR 2010-11, WHICH WAS UNABATED / CON CLUDED ASSESSMENT, ON THE DATE OF SEARCH, DESERVES TO BE UNDISTURBED IN THE ABSENC E OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH AND ACCORDINGLY THE A DDITION MADE ON ACCOUNT OF SHARE CAPITAL U/S 68 OF THE ACT IS HEREBY DIRECTED TO BE DELETED. SINCE THE ISSUE IS ADDRESSED ON PRELIMINARY GROUND OF ABSENCE OF INCRI MINATING MATERIALS, WE REFRAIN TO GIVE OUR FINDINGS ON THE MERITS OF THE ADDITION U/S 68 OF THE ACT FOR THE ASST YEAR 2010-11. ACCORDINGLY THE GROUNDS RAISED BY THE REV ENUE IN THIS REGARD ARE DISMISSED. WE ADOPT THE ABOVE DETAILED ISSUE MUTATIS MUTANDIS TO QUASH THE IMPUGNED ASSESSMENT IN ASSESSEES LEGAL GROUND. THIS RENDER HER LATTER SUBSTANTIVE GROUND ON MERITS AS RENDERED INFRUCTUOUS. 5. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 30 /11/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 30 / 11 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SMT. NITA SETHIA, 5, JANKI SHAH RD, 1 ST FL, HASTINGS, KOLKAT-22 2. /RESPONDENT-DCIT, CC-3(3), 110, SHANTI PALLY, AAYAKAR BHAVAN, POORVA, E.M BYE PASS, NR. RUB Y HOSPITAL, KOLKATA-107 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ / 3,