Shri Rohitji Chanduji Thakor, Ahmedabad V. The ITO, Ward-3(3)(1), Ahmedabad

ITA 204/AHD/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5846 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 28-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Keywords: Unexplained cash credit; Unexplained investment; Question of law; Condonation of delay
• Section: 271(1)(c); 143(3); 153A; 143(2); 158BC; 13; 153; 153C; 147

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ IT(SS)A NO. 45 AND ITA NO.204/AHD/2020 / ASSESSMENT YEAR: 2005-06 ROHITJI CHANDUJI THAKORE CHANDANAMI NIVAS THAKOR VAS, AMBALI GAM AHMEDABAD. PAN : ADTPT 4435 C VS DCIT, CENT.CIR.2(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR HEMANI, SR.ADV PARIMAL SINGH B. PARMAR, AR SHRI VIJAY GOVANI, AR REVENUE BY : SHRI VIRENDRA OJHA, CIT-DR / DATE OF HEARING : 01/07/2021 /DATE OF PRONOUNCEMENT : 17/09/2021 O R D E R PER RAJPAL YADAV, VICE-PRESIDENT: PRESENT TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A)-11, AHMEDABAD DATED 28.8.2019 AND 27.2.2019 FOR THE ASSTT.YEAR 2 005-06. BOTH ARE DISPOSED OF BY THIS COMMON ORDER. 2. IT(SS)A.NO.45/AHD/2020 EMERGES OUT OF THE ASSESS MENT PROCEEDINGS UNDER SECTION 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961, WHEREAS ITA NO.204/AHD/2020 EMERGES OUT OF PENALTY PROCEEDINGS INITIATED UNDER SECTION 271(1)(C) OF TH E ACT. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 2 - 3. REGISTRY HAS POINTED OUT THAT ITA NO.45/AHD/2020 IS TIME BARRED BY 132 DAYS WHEREAS ITA NO.204/AHD/2020 IS TIME BAR RED BY 282 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATI ON OF DELAY IN THE FORM OF AN AFFIDAVIT, WHICH WAS SWORN BY THE ASSESS EE. THE CONTENTS OF THE AFFIDAVIT READ AS UNDER: A) THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) WAS RECEIVED BY ME ON 30.08.2019. I WAS TO HAND OVER THE SAME TO THE CONCERNED TAX PRACTITIONER FOR FILING AN APPEAL AGAINST THE S AME BEFORE HON'BLE HOWEVER, INADVERTENTLY, I FORGOT TO PASS ON SUCH ORDER TO THE SAID TAX PRACTITIONER. B) I SAY AND SUBMIT THAT SINCE I AM NOT WELL REA D AND I UNABLE TO COMPREHEND THE CONTENTS OF THE ORDER, FOR WHICH IT TOOK A REASONABLE TIME. THEREAFTER, DUE TO MF ADVANCED AGE , IT TOOK SOME TIME FOR ME TO GATHER RECORDS AND CONSULT PRACTITIONERS OF CHARTERED ACCOUNTANCY AND LAW? C) HOWEVER, UPON INQUIRY BY THE CONCER NED TAX PRACTITIONER EVENTUALLY, I REALIZED THAT THE IMPUGN ED ORDER WAS NOT FORWARDED FOR FILING AN APPEAL BEFORE YOUR HONORS. AS SOON AS I, CAME ACROSS SUCH FACTS, I IMMEDIATELY FORWARDED THE IMPUGNED ORDER TO THE CONCERNED TAX PRACTITIONER WHO, IN TUR N, FORWARDED THE SAME TO THE CONCERNED ADVOCATE WITH DUE DILIGEN CE FOR FILING OF APPEAL BEFORE YOUR HONORS. THEREAFTER, I CONCERN ED ADVOCATE PREPARED FORM NO.36 AND FORWARDED THE SAME FO R SIGNATURE. SHORTLY THEREAFTER, THE PRESENT APPEAL CAME TO BE F ILED. IN THE MEAN-TIME, THERE OCCURRED SOME DELAY IN FILING APPE AL. 2. I SAY AND SUBMIT THAT I HAVE ENTRUSTED THE MATT ER FOR FILING OF APPEALS AGAINST THIS ORDER TO MY THE-THEN CHARTERED ACCOUNTANT, WHO WAS HANDLING THE ACCOUNTS OF MY BUSINESS SINCE LAST MAN Y YEARS. I WAS UNDER THE IMPRESSION THAT HE WILL HANDLE THE SAME WITH DU E CARE AND DILIGENCE. HOWEVER, WHEN I INQUIRED WITH HIM REGARDING THE STA TUS OF MY ACCOUNTS AND APPEALS, I WAS SHOCKED AND SURPRISED TO KNOW TH AT THE APPEAL HAS NOT BEEN FILED YET DUE TO HIS NEGLIGENCE TOWARDS THE SA ME. I SAY AND SUBMIT THAT DUE TO SUCH CARELESS ATTITUDE SHOWN BY HIM, I WAS LEFT WITH NO OTHER OPTION BUT TO REMOVE HIM FROM THE SAID RESPONSIBILI TY OF MANAGING ACCOUNTS AND FILING OF APPEAL. MORE SO, DUE TO THE NEGLIGENCE ON THE PART OF MY CHARTERED ACCOUNTANT, SOME RELEVANT DOCUMENTS WERE MISPLACED. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 3 - THEREFORE, IT TOOK US TIME TO GATHER ALL THE RELEVA NT DOCUMENTS AND HAND IT OVER TO OUR SUBSEQUENT CHARTERED ACCOUNTANT. 3. I SAY AND SUBMIT THAT UNDER SUCH CIRCUMSTANCES T HERE IS A DELAY IN FILING THE APPEAL BEFORE YOUR HONORS. HOWEVER, I RE SPECTFULLY SUBMIT THAT THERE IS PRIME FACIE GOOD CASE MY FAVOUR. HENCE, IT IS RESPECTFULLY PRAYED TO YOUR HONORS THAT LOOKING THE REASONS AS STATED, I REQUEST YOUR HONOUR TO KINDLY CONDONE THE DELAY CAUSED IN FILING APPEAL BEFORE YOUR HONOUR, IN THE INTEREST OF JUSTICE AND THE APPEAL MAY BE HE ARD AND DECIDED ON MERITS TO PROTECT THE RIGHTS AND INTEREST OF THE DE PONENT. 4. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT D UE TO HIS OLD AGE AND CHRONIC ILLNESS, COULD NOT UNDERSTAND AND COMPR EHEND THE CONTENTS OF THE ORDER OF THE LD.CIT(A). THE MOMENT WHEN HE WAS APPRAISED ABOUT THE IMPUGNED ORDER, THE ASSESSEE APPROACHED H IS CHARTERED ACCOUNTANT, HOWEVER, THE SAID CA DID NOT PUT EFFORT FOR FURTHER FOLLOW UP DILIGENTLY IN TIME, RESULTING DELAY IN FILING TH E APPEAL BEFORE THE TRIBUNAL. THEREFORE, THE REASONS FOR DELAY IN FILI NG APPEAL BEFORE THE TRIBUNAL ARE NOT DELIBERATE AND OCCURRED DUE TO THE REASONS BEYOND HIS CONTROL. HE PRAYED THAT DELAY IN FILING APPEAL BE CONDONED AND THE APPEAL BE DECIDED ON MERITS. 5. THE LD.DR, ON THE OTHER HAND, CONTENDED THAT THE RE IS NO MATERIAL POSSESSED BY THE ASSESSEE TO SUBSTANTIATE THIS ASSE RTION OF THE FACTS. HE HAS NOT DEPOSED THE NAME OF THE CHARTERED ACCOUNTAN T, WHILE LEVELING ALLEGATIONS AGAINST THE SAID CA. THEREFORE, EXPLAN ATION GIVEN BY THE ASSESSEE IS NOT PLAUSIBLE SO AS TO GET LENIENCY FRO M THIS TRIBUNAL FOR CONDONATION OF DELAY IN FLING APPEAL BEFORE THE TRI BUNAL, AND THUS, APPEALS FILED BY THE ASSESSEE ARE INADMISSIBLE. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. SUB-SECTION 5 OF SECTION 253 CONT EMPLATES THAT THE IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 4 - TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT FILING OF ME MORANDUM OF CROSS- OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD, IF IT I S SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 19 63. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONSIDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SUPREME COURT, THEN, HONBLE COURT WERE UNANIMOUS I N THEIR CONCLUSION THAT THIS EXPRESSION IS TO BE USED LIBER ALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HON BLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQ UISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THA T CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 5 - 7. SIMILARLY, WE WOULD LIKE TO MAKE REFERENCE TO AU THORITATIVE PRONOUNCEMENT OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL RE MEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIM ITATION FIXES A LIFE- SPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE L EGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND THE WASTED TIME WOULD NEVER RE VISIT. DURING EFFLUX OF TIME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COURTS. SO A L IFE SPAN MUST BE FIXED FOR EACH REMEDY. UNENDING PERIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN T HE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENE RAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PR ESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS CO URT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIM ITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUB STANTIAL JUSTICE VIDE SHAKUNTALA DEVI LAIN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND STATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPAL ITY [AIR 1972 SC 749]. IT MUST BE REMEMBERED THAT IN EVERY CASE OF D ELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. T HAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION T O THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOU LD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING DELA Y THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST B E BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHE N COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT TH E COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS LOSS. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 6 - WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITUL ATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HONBLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WH ENEVER THE REASONS ASSIGNED BY AN APPLICANT FOR EXPLAINING THE DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORIENTED APPROACH. 8. IN THE LIGHT OF THE ABOVE, IF WE EXAMINE THE EXP LANATION GIVEN BY THE ASSESSEE, THEN IT WOULD REVEAL THAT THE APPEALS COULD NOT BE FILED BY THE ASSESSEE IN TIME MAINLY ON ACCOUNT OF LAXITY ON THE PART OF CHARTERED ACCOUNTANT, WHO HAS BEEN INSTRUCTED FOR FURTHER FOL LOW UP IN THE MATTER INCLUDING FILING OF THE APPEAL BEFORE THE TRIBUNAL. SECOND REASON GIVEN BY THE ASSESSEE IS THAT OF OLD AGE AND THE TIME TAK EN FOR COLLECTING VARIOUS INFORMATION AND DOCUMENTS FOR FILING APPEAL BEFORE THE TRIBUNAL. THOUGH, WE DO NOT HAVE ANY MATERIAL TO VE RIFY THIS PLEADINGS, BUT CONSIDERING AGE OF THE ASSESSEE AND THE FACTS T HAT THE ASSESSEE WOULD NOT GAIN ANYTHING BY NOT FILING THE APPEAL IN TIME, MORE SO WHEN HE HAS GOOD CAUSE IN HAND FOR DEFENDING THE CASE BEFORE TH E TRIBUNAL, WE CONDONE THE DELAY AND PROCEED TO DECIDED BOTH THE A PPEALS ON MERIT. 9. FIRST WE TAKE IT(SS)A.NO.45/AHD/2020 (QUANTUM AP PEAL): 10. IN THIS APPEAL, THE ASSESSEE HAS TAKEN ONE ADDI TIONAL GROUND OF APPEAL, WHEREBY HE HAS PLEADED AS UNDER: THE ACTION OF THE LD.AO IN FRAMING THE ASSESSMENT U/S.153A R.W. SECTION 143(3) OF THE ACT IS NOT TENABLE IN THE EYES OF LAW SINCE SUCH ASSESSMENT HAS BEEN FRAMED BEYOND THE SCOPE OF MATERIAL AND EV IDENCES FOUND DURING THE COURSE OF SEARCH ACTION CARRIED OUT U/S.132 OF THE ACT. ACCORDINGLY, SUCH ASSESSMENT ORDER DESERVES TO BE QUASHED. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 7 - 11. SINCE THIS IS A JURISDICTIONAL ISSUE, AND GOING TO AFFECT TAXABILITY OF THE ASSESSEE, THEREFORE, FOLLOWING DECISION OF HON BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., 229 IT R 383 (SC), WE ALLOW PRAYER OF THE ASSESSEE AND ENTERTAIN THIS ADDITIONA L GROUND OF APPEAL FOR ADJUDICATION, BECAUSE IT DOES NOT CALL FOR DISCOVER Y OF ANY NEW EVIDENCE/FACTS WHICH ARE REQUIRED TO BE BROUGHT ON RECORD. 12. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUN AL) RULES, 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN BRIEF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.4,48,378/- WHICH WAS ADDED BY THE AO ON ACCOU NT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT, AND ADDITION OF RS.5, 13,883/- WHICH WAS ADDED BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMEN T IN PURCHASE OF THE PROPERTY. 13. BRIEF FACTS OF THE CASE ARE THAT SEARCH UNDER S ECTION 132 OF THE INCOME TAX ACT WAS CARRIED OUT IN GROUP CASES OF TH AKORE GROUP ON 21.9.2010. THE RESIDENCE OF THE ASSESSEE WAS ALSO COVERED BY THE SEARCH AND IN ORDER TO GIVE LOGICAL END TO THE PROCEEDINGS , A NOTICE UNDER SECTION 153A WAS ISSUED AND SERVED UPON THE ASSESSE E ON 18.10.2011. IN RESPONSE TO THE NOTICE, THE ASSESSEE SUBMITTED A LE TTER DATED 17.11.2011 STATING THAT PAN MENTIONED IN THE NOTICE WAS INCORR ECT. FURTHER, THE ASSESSEE REQUESTED TO PROVIDE COPIES OF STATEMENT R ECORDED DURING THE COURSE OF SEARCH. THE LD.AO THEREAFTER DISCUSSED H OW THE CONFUSION ON ACCOUNT OF DIFFERENT PAN HAS ARISEN, AND HOW THE AS SESSEE DID NOT FILE RETURN IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT. THE LD.AO THEREAFTER RECORDED A FINDING THAT NOTICE FOR LODGING PROSECUTION IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 8 - WAS ISSUED UPON THE ASSESSEE, AND THEREAFTER THE AS SESSEE FILED RETURN OF INCOME ON 1.11.2012. THE LD.AO HAD ISSUED NOTICE U NDER SECTION 143(2) AND PROCEEDED TO PASS ASSESSMENT ORDER. HE PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 153A O N 30.3.2013. THE LD.AO HAS OBSERVED THAT THE ASSESSEE HAS PURCHASED BLOCK NO.77 ON 17.3.2005 AND PURCHASE PRICE OF THIS BLOCK WAS AT R S.5,13,883/-. THE ASSESSEE HAS PURCHASED THIS BLOCK ALONG OTHER FAMIL Y MEMBERS, AND WAS HAVING 1/6 TH SHARE. THE AO HAS MADE ADDITION OF RS.5,13,883/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BLOCK NO.77. SIMILARLY, THE ASSESSEE HAS MADE ADDITION OF RS.4,48,378/- ON ACCO UNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT. THE COMPUTATION OF I NCOME MADE BY THE AO READ AS UNDER: TOTAL INCOME RS. 91,630/- ADD: UNEXPLAINED INVESTMENT IN BLOCK NO.77 RS. 5,1 3,883/- ADD: UNEXPLAINED CREDIT IN THE BANKS RS.4,48,378/ - TOTAL INCOME RS.10,53,891/- 14. APPEAL TO THE CIT(A) DID NOT BRING ANY RELIEF T O THE ASSESSEE. 15. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET SUBMITTED THAT TIME LIMIT FOR ISSUING THE STATUTORY NOTICE UNDER S ECTION 143(2) FOR PASSING SCRUTINY ASSESSMENT UNDER SECTION 143(3) WA S EXPIRED MUCH PRIOR TO THE DATE OF SEARCH RELEVANT TO THIS ASSESS MENT YEAR. HE POINTED OUT THAT SEARCH WAS CONDUCTED ON 21.9.2010. THIS I S ASSESSMENT YEAR 2005-06. THEREFORE, THIS IS AN UNABATED ASSESSMENT ORDER AS PROVIDED IN SECOND PROVISO TO SECTION 153A OF THE ACT. THE ADD ITION CAN ONLY BE MADE IF DURING THE COURSE OF SEARCH ANY INCRIMINATI NG MATERIAL WAS FOUND. FOR BUTTRESSING HIS CONTENTIONS, HE RELIED UPON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF PCIT VS. SAUMYA IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 9 - CONSTRUCTION P.LTD., 387 ITR 292 (GUJ). HE ALSO EM PHASIZED THAT THE AO HAS NOT MADE REFERENCE TO ANY SEIZED MATERIAL FOR M AKING ADDITION IN THE HANDS OF THE ASSESSEE. THIS IS NOT RELEVANT ASSESS MENT YEAR WHERE HE CAN LOOK INTO ALL THIS ASPECTS. THIS IS AN ASSESSMENT YEAR WHICH UNABATED AS PER THE SECOND PROVISO TO SECTION 153A OF THE ACT, AND THEREFORE THE AO CANNOT TINKER WITH THE ASSESSMENT OF INCOME UNLESS ANY INCRIMINATING MATERIAL DEMONSTRATING ESCAPEMENT OF INCOME WAS FOU ND DURING THE COURSE OF SEARCH. ON THE OTHER HAND, THE LD.DR REL IED ON THE ORDER OF THE AO. 16. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND G ONE THROUGH THE RECORD CAREFULLY. BEFORE ADVERTING TO THE FACTS AN D ALLEGED SEIZED MATERIAL CONSIDERED BY THE LD.AO FOR MAKING THE ADD ITION IN THE HANDS OF THE ASSESSEE, WE DEEM IT APPROPRIATE TO BEAR IN MIND THE POSITION OF LAW PROPOUNDED IN VARIOUS AUTHORITATIVE JUDGMENTS R ECORDING SCOPE OF SECTION 153A OF THE ACT. WE ARE OF THE VIEW THAT I N THIS REGARD, THERE WERE LARGE NUMBERS OF DECISIONS. FIRST WE REFER TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KAB UL CHAWLA, 380 ITR 573 (DEL). HONBLE DELHI HIGH COURT AFTER DETAILED ANALYSIS HAS SUMMARIZED THE FOLLOWING LEGAL POSITION: 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 THE AFOREMENTIONED DECISIONS, THE LEGA L POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 10 - II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS W ILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REA SSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTH ER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UN DISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A 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 AO WHICH CAN BE RELATED TO THE EVIDENCE FO UND, IT DOES NOT MEAN THAT THE ASSE SSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSM ENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECT ION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PEND ING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETE D ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT S HALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FIN DINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON T HE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED I NCOME OR PROPERTY DISC OVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 11 - COURSE OF ORIGINAL ASSESSMENT. 17. ITAT, DELHI BENCH IN THE CASE OF DIT VS. SMT. S HIVALI MAHAJAN AND OTHERS, RENDERED IN ITA NO.5585/DEL/2015 (COPY OF T HE DECISION PLACED ON RECORD) HAS CONSIDERED THIS ASPECT IN ITS DECISI ON. THEREAFTER, THE TRIBUNAL HAS SPECIFICALLY HELD THAT SERIAL NO.(IV) OF THE ABOVE PROPOSITION, THE HONBLE DELHI HIGH COURT HAS SPECIFICALLY HELD THAT ASSESSMENT UNDER SECTION 153A OF THE ACT HAS TO BE SPECIFICALL Y MADE ON THE BASIS OF SEIZED MATERIAL. ITAT DELHI BENCH WAS CONSIDERING AN ASPECT WHETHER THE EVIDENCE IN THE SHAPE OF BOOKS OF ACCOUNTS, MON EY, BULLION, JEWELLERY FOUND DURING THE COURSE OF SEARCH RELATES TO OTHER PERSON THAN THE SEARCHED PERSON, CAN THAT BE CONSIDERED WHILE MAKIN G ASSESSMENT UNDER SECTION 153A OF THE ACT. LIKE IN THE PRESENT APPEA LS, SIMULTANEOUS SEARCH WAS CARRIED OUT AT THE PREMISES OF THE VENUS INFRASTRUCTURE AND ASHOK SUNDERDAS VASWANI, AND THE MATERIAL FOUND DUR ING THE SEARCH OF VENUS INFRASTRUCTURE DEVELOPERS OR ASHOK SUNDERDAS VASWANI COULD BE USED WHILE FRAMING THE ASSESSMENT OF RAJESH SUNDERD AS VASWANI AND DEEPAK BUDHARMAL VASWANI UNDER SECTION 153A OF THE ACT. ITAT DELHI BENCH HAS SPECIFICALLY HELD THAT MATERIAL RECOVERED FROM THE PREMISES OF OTHER PERSON CANNOT BE USED IN THE HANDS OF THE SEA RCHED PERSON. FOR THAT PURPOSE AN ASSESSMENT UNDER SECTION 153C OR 14 7 IS TO BE MADE. AT THIS STAGE, IN ORDER TO FORTIFY OURSELVES, WE WOULD LIKE TO MAKE REFERENCE TO THE FOLLOWING PARAGRAPHS OF THE ITAT DELHI BENCH S ORDER. IT READS AS UNDER: 15. THUS, WHEN DURING THE COURSE OF SEARCH OF AN A SSESSEE ANY BOOKS, DOCUMENT OR MONEY, BULLION, JEWELLERY ETC. I S FOUND WHICH RELATES TO A PERSON OTHER THAN THE PERSON SEARCHED, THEN THE ASSESSING OFFICER OF THE PERSON SEARCHED SHALL HAND OVER SUCH BOOKS IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 12 - OF ACCOUNT, DOCUMENTS, OR VALUABLES TO THE ASSESSIN G OFFICER OF SUCH OTHER PERSON AND THEREAFTER, THE ASSESSING OFF ICER OF SUCH OTHER PERSON CAN PROCEED AGAINST SUCH OTHER PERSON. HOWEVER, IN THE CASE UNDER APPEAL BEFORE US, ADMITTEDLY, SECTIO N 153C IS NOT INVOKED IN THE CASE OF THE ASSESSEE AND THE ASSESSM ENT IS FRAMED UNDER SECTION 153A. WE, RESPECTFULLY FOLLOWING THE ABOVE DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT, HOLD THAT DURI NG THE COURSE OF ASSESSMENT UNDER SECTION 153A, THE INCRIMINATING MATERIAL, IF ANY, FOUND DURING THE COURSE OF SEARCH OF THE ASSES SEE ONLY CAN BE UTILIZED AND NOT THE MATERIAL FOUND IN THE SEARCH O F ANY OTHER PERSON. 18. ORDER OF THE ITAT DELHI BENCH IN OTHER CASES VI Z. ASHA RANI LAKHOTIA VS. ACIT AND SUBHAG KHATTAR VS. ACIT ARE O N THE SAME LINE. 19. HONBLE DELHI HIGH COURT IN THE CASE OF SUBHAG KHATTAR IN TAX APPEAL NO.60 OF 2017 HAS CONSIDERED THE FOLLOWING Q UESTION OF LAW: 'DID THE INCOME TAX APPELLATE TRIBUNAL (ITAT) FALL INTO ERROR IN HOLDING THAT THE ADDITIONS MADE UNDER SECTION 153A READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 IN THE CIRCUMSTANCES OF THE CASE, WERE NOT JUSTIFIED AND SUPPORTABLE IN LAW ? ' 20. AFTER PUTTING RELIANCE UPON ITS DECISION IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) HAS REPLIED THIS QUESTION AS U NDER: 6. THE ASSESSEE WENT IN APPEAL BEFORE THE COMMISSI ONER OF INCOME TAX (APPEALS) WHO DISMISSED IT BY AN ORDER DATED 27 TH NOVEMBER, 2014. A FURTHER APPEAL WAS FILED BY THE ASSESSEE BEFORE T HE ITAT. THE ITAT, INTER ALIA, FOUND SUBSTANCE IN THE CONTENTION OF TH E ASSESSEE THAT THE ASSESSMENT UNDER SECTION 153(A) OF THE ACT, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ON T HE PREMISES OF THE ASSESSEE WAS NOT SUSTAINABLE IN LAW. RELIANCE WAS P LACED ON THE DECISION OF THIS COURT IN COMMISSIONER OF INCOME TA X V. KABUL CHAWLA, [2016] 380 ITR 573. 7. A QUESTION WAS POSED TO THE LEARNED COUNSEL FOR THE REVENUE WHETHER IN THE PRESENT CASE ANYTHING INCRIMINATING HAS BEEN FOUND WHEN THE PREMISES OF THE ASSESSEE WAS SEARCHED. THE ANSWER W AS IN THE NEGATIVE. THE ENTIRE CASE AGAINST THE ASSESSEE WAS BASED ON W HAT WAS FOUND DURING THE SEARCH OF THE PREMISES OF THE AEZ GROUP. IT IS THUS APPARENT IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 13 - ON THE FACE OF IT, THAT THE NOTICE TO THE ASSESSEE UNDER SECTION 153A OF THE ACT WAS MISCONCEIVED SINCE THE SO-CALLED INCRIM INATING MATERIAL WAS NOT FOUND DURING THE SEARCH OF THE ASSESSEE'S PREMI SES. THE REVENUE COULD HAVE PROCEEDED AGAINST THE ASSESSEE ON THE BA SIS OF THE DOCUMENTS DISCOVERED UNDER ANY OTHER PROVISION OF L AW, BUT CERTAINLY, NOT UNDER SECTION 153A. THIS GOES TO THE ROOT OF TH E MATTER. 21. HONBLE COURT HAS SPECIFICALLY OBSERVED FOR THE PURPOSE OF SECTION 153A THAT ONLY SEIZED MATERIAL IS REQUIRED. HOWEVE R, IF THERE IS ANY OTHER INCRIMINATING MATERIAL BELONG TO THE ASSESSEE FOUND AT THE PREMISES OF THE SOME OTHER PERSON, THEN THE ASSESSM ENT HAS TO BE MADE UNDER OTHER PROVISIONS AND NOT UNDER SECTION 153A O F THE ACT. HONBLE JURISDICTIONAL HIGH COURT HAS ALSO CONSIDERED THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWL A (SUPRA). HONBLE GUJARAT HIGH COURT FRAMED THE FOLLOWING QUESTION OF LAW IN THE CASE OF PR.CIT VS. SAUMYA CONSTRUCTION (SUPRA): '[A] WHETHER THE ORDER OF TRIBUNAL IS RIGHT IN LAW AND O N FACTS IN DELETING THE ADDITION MADE IN ASSESSMENT MADE U/S 153A OF THE AC T? [B] WHETHER THE TRIBUNAL IS RIGHT IN LAW IN HOLDING THA T THE ADDITION SHOULD BE BASED ON THE INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH UNDER NEW PROCEDURE OF ASSESSMENT U/S 153A WHICH IS DIFFE RENT FROM EARLIER PROCEDURE U/S 158BC R.W.S. 158BB OF THE ACT AND BY READING INTO THE SECTION, THE WORDS 'THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH' WHICH ARE NOT THERE IN SECTION 153A? [C] WHETHER THE TRIBUNAL ERRED IN RELYING ON THE ITAT O RDER IN SAN JAY AGGARWAL V. DCIT (2014) 47 TAXMANN.COM 210 (DEL) WHICH HAS INTERPRETED UNDISCLOSED INCOME UNEARTHED DURING THE SEARCH TO I MPLY INCRIMINATING MATERIAL, AS AGAINST THE FINDING OF THE DELHI HIGH COURT IN FILATEX INDIA LTD. V. CIT-IV (2015) 229 TAXMAN 555 WHEREIN IT IS HELD THAT DURING THE ASSESSMENT U/S 153A ADDITIONS NEED NOT BE RESTRIC TED OR LIMITED TO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH?' 22. HONBLE COURT CONCURRED WITH THE DECISION OF HO NBLE DELHI HIGH COURT. WE DEEM IT APPROPRIATE TO TAKE NOTE OF RELE VANT PART OF THE DECISION, WHICH READS AS UNDER: IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 14 - 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS WELL SETTLED AS HELD BY THE SUP REME COURT IN A CATENA OF DECISIONS THAT THE HEADING OF THE SECTION CAN BE RE GARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECT ION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLE AR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEAD ING OF SECTION 153, THE INTENTION OF THE LEGISLATURE IS CLEAR VIZ., TO PROV IDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF TH E PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOE S WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR RE QUISITION. IN OTHER WORDS, THE ASSESSMENT SHOULD BE CONNECTED WITH SOMETHING F OUND DURING THE SEARCH OR REQUISITION, VIZ., INCRIMINATING MATERIAL WHICH REV EALS UNDISCLOSED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION ( 1) OF SECTION 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUI SITION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNIS H RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADD ITION OR DISALLOWANCE CAN BE MADE ONLY ON THE BASIS OF MATERIAL COLLECTED DUR ING THE SEARCH OR REQUISITION. IN CASE NO INCRIMINATING MATERIAL IS F OUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDI A) (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. IN CASE WHE RE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSM ENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSES SEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED B Y THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SE ARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT UNDER SECTION 147 OF T HE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AND AMBIT OF THE A SSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. 17. IN THE FACTS OF THE PRESENT CASE, A SEARCH CAME TO BE CONDUCTED ON 07.10.2009 AND THE NOTICE WAS ISSUED TO THE ASSESSE E UNDER SECTION 153A OF THE ACT FOR ASSESSMENT YEAR 2006-07 ON 04.08.2010. IN R ESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 18.11.2010. IN T ERMS OF SECTION 153B, THE ASSESSMENT WAS REQUIRED TO BE COMPLETED WITHIN A PE RIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE SEARCH CAME TO BE CARRIED OUT, NAMELY, ON OR BEFORE 31ST MARCH, 2012. HERE, INSOFAR AS THE IMPUGNED ADDITION IS CONCERNED, THE NOTICE IN RESPECT THEREOF CAME TO BE ISSUED ON 19.12.2011 SEEKING AN EXPLANATION FROM THE ASSESSEE. THE ASSES SEE GAVE ITS RESPONSE BY REPLY DATED 21.12.2011 CALLING UPON THE ASSESSING O FFICER TO PROVIDE COPIES OF STATEMENTS RECORDED ON OATH OF SHRI ROHIT P. MODI A ND SMT. PARESHABEN K. MODI DURING THE SEARCH AS WELL AS THE COPIES OF THE DOCUMENTS UPON WHICH THE DEPARTMENT PLACED RELIANCE FOR THE PURPOSE OF MAKIN G THE PROPOSED ADDITION AS WELL AS THE COPY OF THE EXPLANATION GIVEN BY SHRI R OHIT P. MODI AND SMT. PARESHABEN K. MODI REGARDING THE ON-MONEY RECEIVED, COPIES OF THE ASSESSMENT ORDERS IN CASE OF SAID PERSONS AND ALSO REQUESTED THE ASSESSING OFFICER TO PERMIT HIM TO CROSS-EXAMINE THE SAID PER SONS. THE ASSESSING OFFICER IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 15 - ISSUED SUMMONS TO THE SAID PERSONS, HOWEVER, THEY W ERE OUT OF STATION AND IT WAS NOT KNOWN AS TO WHEN THEY WOULD RETURN. IN THIS BACKDROP, WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO CROSS- EXAMINE THE SAID PERSONS, THE ASSESSING OFFICER MADE THE ADDITION IN QUESTION . 18. IN THIS CASE, IT IS NOT THE CASE OF THE APPELLA NT THAT ANY INCRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CO NSIDERATION WAS FOUND DURING THE COURSE OF SEARCH. AT THE RELEVANT TIME W HEN THE NOTICE CAME TO BE ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSEE FILED ITS RETURN OF INCOME. MUCH LATER, AT THE FAG END OF THE PERIOD WITHIN WHI CH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE MADE, IN OTHER WORDS, WHE N THE LIMIT FOR FRAMING THE ASSESSMENT AS PROVIDED UNDER SECTION 153 WAS ABOUT TO EXPIRE, THE NOTICE HAS BEEN ISSUED IN THE PRESENT CASE SEEKING TO MAKE THE PROPOSED ADDITION OF RS.11,05,51,000/- ON THE BASIS OF THE MATERIAL WHIC H WAS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEMENT O F ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIKE THE PRESENT O NE, WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER AND NO ASSESSMENT OR REASSESSME NT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR M AKING OF REQUISITION UNDER SECTION 132A, WHILE COMPUTING THE TOTAL INCOME OF T HE ASSESSEE UNDER SECTION 153A OF THE ACT, ADDITIONS OR DISALLOWANCES CAN BE MADE ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR REQUISITION. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT NO IN CRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, HOWEVER, IT IS O N THE BASIS OF SOME MATERIAL COLLECTED BY THE ASSESSING OFFICER MUCH SUBSEQUENT TO THE SEARCH, THAT THE IMPUGNED ADDITIONS CAME TO BE MADE. 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING THAT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS FOUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN RESPECT OF ALL T HE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS, THE ASSESSMENT IN RESPECT OF EACH OF T HE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT. UNDER SECTION 153 A OF THE ACT, AN ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR REQUISI TION, NAMELY, IN RELATION TO MATERIAL DISCLOSED DURING THE SEARCH OR REQUISITION . IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND , NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESS MENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIE R ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COM PLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA), JODHPUR (SUPRA). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF JAYABEN R ATILAL SORATHIA (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHILE IT CANNOT BE DI SPUTED THAT CONSIDERING SECTION 153A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RESPECT TO SIX PRECEDING YEARS; HOWEVER , THERE MUST BE SOME INCRIMINATING MATERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSMENT YEAR . IT(SS)A.NO.45/AHD/2020 AND ITA NO.1188 /AHD/2019 - 16 - 20. FOR THE FOREGOING REASONS, IT IS NOT POSSIBLE T O STATE THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM ANY LEGAL INFIRMITY SO AS TO GIVE RISE TO A QUESTION OF LAW, MUCH LESS, A SUBSTANTIAL QUES TION OF LAW, WARRANTING INTERFERENCE. THE APPEAL, THEREFORE, FAILS AND IS, ACCORDINGLY, DISMISSED. 23. A PERUSAL OF THE ASSESSMENT ORDER WOULD INDICAT E THAT THERE IS NO SEIZED MATERIAL REFERRED BY THE AO WHILE MAKING ADD ITIONS. HENCE, RESPECTFULLY FOLLOWING PROPOSITION OF LAW LAID DOWN BY THE HONBLE SUPREME COURT, HONBLE JURISDICTIONAL HIGH COURT IN THE CASES CITED (SUPRA), WHICH WERE FOLLOWED BY THE ITAT IN EARLIER SIMILAR OTHER CASES, THE IMPUGNED ADDITIONS ARE NOT SUSTAINABLE. HENCE , WE ALLOW BOTH THESE GROUNDS OF APPEAL, AND DELETE ADDITIONS OF RS .4,48,378/- AND RS.5,13,883/-. 24. NOW WE TAKE ITA NO.204/AHD/2020 (PENALTY ORDER) 25. SINCE ADDITIONS ON WHICH IMPUGNED PENALTY HAS B EEN LEVIED, STAND DELETED BY ORDER OF THE TRIBUNAL IN THE QUANTUM APP EAL ADJUDICATED HEREINABOVE, IMPUGNED PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD.CIT(A) IS NOT SUSTAINABLE, HENCE THE SAME STANDS CANCELLED. 26. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2021. SD/- (WASEEM AHMED) ACCOUNTANT MEMBER SD/- (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED, 17/09/2021