ACIT, New Delhi V. Smt. Archana Saluja, New Delhi

ITA 2045/DEL/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9252 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: R S AHUJA
• Keywords: Unexplained cash credit; Business income; Search and seizure; Loose papers; Documents seized
• Section: 143(3); 153A; 2(22)(e); 115JB; 143(1); 205; 68; 145; 132; 144; 139

Judgement Text

ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 1 OF 19 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B: NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 2046/DEL/2016 (ASSESSMENT YEAR: 2006-07) ACIT CENTRAL CIRCLE- 30 E- 2. ARA CENTRE, JHANDEWALAN EXTN. NEW DELHI PIN: VS. ANKUSH SALUJA 9A, JEEWAN JYOTI FARM, THE GREEN RAJKORI NEW DELHI PIN: 110036 PAN NO: AQDPS8677G APPELLANT RESPONDENT ITA NO:- 2045/DEL/2016 (ASSESSMENT YEAR: 2006-07) ACIT CENTRAL CIRCLE- 30 E- 2. ARA CENTRE, JHANDEWALAN EXTN. NEW DELHI PIN: VS. ARCHANA SALUJA 9A, JEEVAN JYOTI FARM, THE GREEN RAJKORI NEW DELHI PIN: 110036 PAN NO: AANPS2300L APPELLANT RESPONDENT ITA NO:- 2050/DEL/2016 (ASSESSMENT YEAR: 2006-07) ACIT CENTRAL CIRCLE- 30 E- 2. ARA CENTRE, JHANDEWALAN EXTN. NEW DELHI PIN: VS. SALUJA CONSTRUCTION CO. LTD. 30, COMMERCIAL COMMUNITY CENTRE, 1 ST FLOOR, BASANT LOK, VASANT VIHAR, NEW DELHI PIN: 110057 PAN NO: AABCS3788H APPELLANT RESPONDENT ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 2 OF 19 ASSESSEE BY : SH. R.S. AHUJA, CA REVENUE BY : MS. NIDHI SRIVASTAVA, CIT (DR) ORDER PER: ANADEE NATH MISSHRA, AM THESE THREE APPEALS FILED BY REVENUE ARE BEING DIS POSED OFF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE BECA USE SIMILAR / ANOTHER RELATED ASSESSMENTS ARE INWARD IN THESE APPEALS. APPEAL VID E ITA NO. 2045/DEL/2016 IS AGAINST IMPUGNED ORDER DATED 25.01.2016 IN THE CASE OF SMT. ARCHANA SALUJA IN APPEAL NO. 25/14-15/1602 FOR ASSESSMENT YEAR (AY FO R SHORT) 2006-07. APPEAL VIDE ITA NO. 2046/DEL/2016 IS FILED AGAINST ORDER DATED 25.01.2016 IN THE CASE OF MR. ANKUSH SALUJA IN APPEAL NO. 21/14-15/1598 FOR AY 20 06-07. APPEAL VIDE ITA NO. 2050/DEL/2016 FILED AGAINST SEPARATE ORDER DATED 25 .01.2016 OF LD. COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A) FOR SHORT] IN THE C ASE OF M/S SALUJA CONSTRUCTION CO. LTD. IN APPEAL NO. 28/14-15/1605 FOR AY 2006-07 . THE GROUNDS OF APPEAL IN THESE THREE APPEALS FILED BY REVENUE ARE AS UNDER: ITA NO. 2045/DEL/2016: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O TO DELETE THE ADD ITION MADE U/S 68 OF THE I T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPR EME COURT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN UNDISCLOSED INCOME DIS COVERED FROM SEIZED / INCRIMINATING MATERIAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153A OF THE ACT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 3 OF 19 AND ON FACTS IN NOT APPRECIATING THAT THE DECISION OF HON'BLE HIGH COURT IN THE CASE OF CIT(CENTRAL)-LLL VS KABUL CHAWALA IS EQUIVALENT TO A PARALLEL LEGISLATION AS THE WORD INCRIMINATING DOCUMENT IS NOT DEFINED ANYWHE RE IN THE ACT AND IS OPEN TO VARIOUS INTERPRETATIONS. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN INCOME UNEARTHED DURIN G SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09-08-2014 HAS HELD THAT TOT AL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 7. THAT THE ORDER OF THE CIT(A) IS PERVERSE, ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 8. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTE R OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPE AL. ITA NO. 2046/DEL/2016: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE AD DITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPR EME COURT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN UNDISCLOSED INCOME DIS COVERED FROM SEIZED / INCRIMINATING MATERIAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153A OF THE ACT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE DECISION OF HONBLE HIGH COURT IN THE CASE OF CIT(CENTRAL)-LLL VS KABUL CHAWALA IS EQUIVALENT TO A PARALLEL LEGISLATION AS THE WORD INCRIMINATING DOCUMENT IS NOT DEFINED ANYWHE RE IN THE ACT AND IS OPEN TO VARIOUS INTERPRETATIONS. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN INCOME UNEARTHED DURIN G SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09-08-2014 HAS HELD THAT TOT AL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 7. THAT THE ORDER OF THE CIT(A) IS PERVERSE, ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 8. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTE R OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPE AL. ITA NO. 2050/DEL/2016: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 4 OF 19 AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE AD DITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DETERMINING THAT NO INCRIMINATING D OCUMENT WAS FOUND DURING SEARCH AND SEIZURE ACTION U/S 132 OF THE I.T. ACT AND NO A DDITION CAN BE MADE U/S 153A RELYING ON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA AND WITHOUT CONSIDERING THE MERITS OF THE CA SE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THAT INCRI MINATING DOCUMENTS WERE FOUND AND SEIZED FROM THE BUSINESS PREMISES OF THE ASSESSEE D URING SEARCH AND SEIZURE ACTION ON 12.02.2012 AND ON THE BASIS OF THESE INCRIMINATING DOCUMENTS, THE ASSESSEE ITSELF DISCLOSED AN ADDITIONAL INCOME OF RS. 1,00,00,000/- IN ASSESSMENT YEAR 2012-13. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE RATIO LAI D DOWN BY HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. KABUL CH AWLA IS DISTINGUISHABLE TO THE FACTS OF THIS CASE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE DECISION OF HONBLE HIGH COURT IN THE CASE OF CIT(CENTRAL)-LLL VS KABUL CHAWALA IS EQUIVALENT TO A PARALLEL LEGISLATION AS THE WORD INCRIMINATING DOCUMENT IS NOT DEFINED ANYWHE RE IN THE ACT AND IS OPEN TO VARIOUS INTERPRETATIONS. 6. THAT THE ORDER OF THE CIT(A) IS PERVERSE, ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTE R OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPE AL. (2) A SEARCH UNDER SECTION 132 OF INCOME TAX ACT (I.T. ACT FOR SHORT) WAS CONDUCTED ON 12.01.2011 IN THE SALUJA GROUP OF CASE S. ALL THE THREE ASSESSEES ARE PART OF THE AFORESAID SALUJA GROUP OF CASES. THE PR EMISES SEARCHED U/S 132 OF I.T. ACT INCLUDED THE PREMISES OF AFORESAID M/S SALUJA C ONSTRUCTION CO. LTD. AND THE PREMISES OF AFORESAID SMT. ARCHANA SALUJA. ASSESSME NT ORDER U/S 153A OF I.T. ACT, DATED 14.3.2014, WAS PASSED IN THE CASE OF M/S SALU JA CONSTRUCTION CO. LTD. IN WHICH AN ADDITION OF RS. 22,17,50,000 WAS MADE U/S 68 OF I.T. ACT, 1962 TOWARDS UNEXPLAINED CASH CREDITS. SEPARATE ASSESSMENT ORDER U/S 153A, READ WITH SECTION 143(3) OF I.T. ACT WAS PASSED ON 14.03.2014 IN THE C ASE OF SMT. ARCHANA SALUJA WHEREIN AN ADDITION OF RS. 24,74,32,560 WAS MADE U/ S 68 OF I.T. ACT TOWARDS UNEXPLAINED CASH CREDITS. ANOTHER SEPARATE ASSESSME NT ORDER WAS PASSED ON ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 5 OF 19 14.03.2014 IN THE CASE OF MR. ANKUSH SALUJA U/S 153 C, READ WITH SECTION 153A OF I.T. ACT WHEREIN AN ADDITION OF RS. 18,81,42,080 WAS MADE U/S 68 OF I.T. ACT TOWARDS UNEXPLAINED CASH CREDITS. THE THREE ASSESSE ES FILED SEPARATE APPEALS BEFORE THE LD. CIT(A). VIDE SEPARATE APPELLATE ORDERS AS M ENTIONED EARLIER (THE IMPUGNED ORDERS) THE LD. CIT(A) DELETED THE AFORESAID ADDITI ONS IN THE CASES OF ALL THE THREE ASSESSEES; ON THE GROUND THAT THESE ADDITIONS WERE NOT BASED ON ANY INCRIMINATING DOCUMENT FOUND DURING SEARCH U/S 132 OF I.T. ACT. T HE LD. CIT(A) PLACED RELIANCE ON ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 61 TAXMANN.COM 412 (DELHI) / 380 ITR 0573 (DEL) AND ANOTHER ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAKSON ENGINEERS LTD. 2015-T10L- 2789-HC-DEL-IT . THE THREE APPEALS FILED BY REVENUE ARE AGAINST TH E AFORESAID IMPUGNED ORDERS OF THE LD. CIT(A). (3) DURING APPELLATE PROCEEDINGS IN ITAT THE LD. AUTHO RIZED REPRESENTATIVES FOR THE ASSESSEE FILED TWO SEPARATE PAPER BOOKS. THE CO NTENTS OF THE PAPER BOOKS ARE AS UNDER: S. NO. PARTICULARS 1 DCIT VS. ANKUSH SALUJA {51 CCH 0509} [DEL TRIB] F OR AY 07-08 2. CIT VS. KABUL CHAWLA {380 ITR 0573} [DEL] 3. PR. CIT & ORS. VS. MEETA GUTGUTIA {395 ITR 0526} [DEL] 4. EXCEL INFOTECH LTD. VS. DCIT {3492 TO 3494/DEL/2 014} [DEL TRIB] 5. SANJAY AGGARWAL VS. DCIT {150 ITD 0692} [DEL TRI B] ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 6 OF 19 6. IN DCIT VS. SALUJA CONSTRUCTION CO. LTD. (I.T.A 205 1 /DEL/2016) FOR AY 07-08 AND DCIT VS. VINOD SALUJA (I.T.A 2052 & 2053/DEL/2016) FOR AY 06-07 & 07-08 7. ASSESSMENT ORDER U/S 143(3) DATED 28.12.2007 FOR AY 2006-07 IN THE MATTER OF M/S. SALUJA CONSTRUCTION CO. LTD. 8. ASSESSMENT ORDER U/S 143(3) DATED 28.12.2017 FOR AY 2006-07 IN THE MATTER OF MRS. ARCHANA SALUJA. (4) AT THE TIME OF HEARING BEFORE US THE LD. CIT(DR), W HILE ADMITTING THAT THE DISPUTED ADDITIONS ARE COVERED IN FAVOUR OF ASSESSE E BY ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) ; HOWEVER, RELIED ON THE ASSESSMENT ORDERS. LD. AR OF THE ASSESSEE, ON THE O THER SIDE, DREW OUR ATTENTION TO ORDER OF CO-ORDINATE BENCH OF ITAT, DELHI IN THE CA SE OF ANKUSH SALUJA, ANOTHER ASSESSEE OF THIS SALUJA GROUP, VIDE ORDER DATED 07. 12.2017, REPORTED AT (2017) 51CCH 0509 (DELTRIB) FOR AY 2007-08 IN WHICH ON IDE NTICAL FACTS, RELYING ON ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) AND ON VIJAY BHAI N. CHANDRANI VS. ACIT 333 ITR 436 (GUJAR AT) ; AND OBSERVING THAT NO INCRIMINATING DOCUMENT WAS FOUND DURING THE COUR SE OF SEARCH SO AS TO MAKE THE ADDITION U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXP LAINED CASH CREDIT, CO-ORDINATE BENCH OF ITAT, DELHI, DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE. THE RELEVANT PORTION OF THE AFORESAID ORDER DATED 07.12.2017 IN THE CASE OF DCIT VS. ANKUSH SALUJA (2017) 51CCH 0509 (DELTRIB) IS REPRODUCED AS UNDER : .IT IS ALSO AN ADMITTED FACT THAT DURING THE COUR SE OF SEARCH AND SEIZURE NO INCRIMINATING EVIDENCE AS REGARDS THE ADDITION UNDE R SECTION 68 OF THE ACT WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH. THERE FORE, NO ASSESSMENT/RE- ASSESSMENT WERE PENDING AS ON THE DATE OF SEARCH. I N THE ABSENCE OF ANY INCRIMINATING MATERIAL DURING THE COURSE OF SEARCH, THE LD. CIT(A) WAS JUSTIFIED IN RELYING UPON THE DECISION OF THE HON'BLE DELHI H IGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) FOR THE PURPOSE OF DELETING TH E ADDITION. MERELY BECAUSE DEPARTMENTAL SLP IS PENDING BEFORE THE HON'BLE HIGH COURT IS NO GROUND TO ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 7 OF 19 TAKE A CONTRARY DECISION AGAINST THE DECISION OF TH E JURISDICTIONAL DELHI HIGH COURT. WE MAY ALSO REFER TO JUDGMENT OF HON'BLE GUJ RAT HIGH COURT IN THE CASE OF VIJAY BHAI N. CHANDRANI VS. ACIT 333 ITR 436 IN WHICH IT WAS HELD AS UNDER.] 'HELD, ALLOWING THE PETITION, THAT ADMITTEDLY, THRE E LOOSE PAPERS RECOVERED DURING THE COURSE OF SEARCH PROCEEDINGS DID NOT BEL ONG TO THE PETITIONER. IT WAS NOT THE CASE OF THE REVENUE THAT THREE DOCUMENTS WE RE IN HAND-WRITING OF THE PETITIONER. IN THE CIRCUMSTANCES, WHEN THE CONDITIO N PRECEDENT FOR ISSUANCE OF NOTICE WAS NOT FULFILLED, ACTION TAKEN UNDER SECTIO N 153C OF THE ACT STOOD VITIATED.' IN THE PRESENT CASE, EVEN NO INCRIMINATING DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH SO AS TO MAKE THE ADDITION UNDER S ECTION' 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT. THE LD. CIT(A) IN VIEW OF THESE FINDINGS DID NOT DECIDE THE ISSUE ON MERIT. THE ABOVE DISCUSSION CLEARLY SHOW THAT DEPARTMENT HAS NO CASE TOR INTERFERENCE THE LD. D.R . HAS NOT POINTED OUT ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). IN THE RESULT, APPEAL OF THE DEPARTMENT STANDS DISM ISSED. (5) THE LD. AR OF THE ASSESSEE ALSO RELIED ON THE DECIS ION OF CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASES OF SALUJA CONSTRUCTION CO. LTD. FOR AY 2007-08 AND IN THE CASE OF VINOD SALUJA FOR AYS 2006-07, 2007-08 VIDE CONSOLIDATED ORDER DATED 05.07.2018. THE LD. AR SUBMITTED THAT THESE ASSESSE ES ARE ALSO OF THE AFORESAID SALUJA GROUP AND ON IDENTICAL FACTS THE CO-ORDINATE BENCH OF ITAT, DELHI DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEES. IN PARTICULAR THE LD. AR DREW OUR ATTENTION TO THE FOLLOWING PORTION OF THE AFORESAID CONSOLIDATED ORD ER DATED 05.07.2018: IT IS APPARENT FROM THE ASSESSMENT ORDER ITSELF, A S HAS BEEN CANDIDLY ADMITTED BY THE LD. DR AS WELL, THAT THERE IS NO REFERENCE TO A NY INCRIMINATING MATERIAL IN THE ASSESSMENT ORDER QUA THESE CREDITORS/ADVANCES IN RE SPECT OF WHICH ADDITION OF RS. 24.39 CRORE WAS MADE. RESPECTFULLY FOLLOWING TH E JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN KABUL CHAWLA (SUPRA), WE HOLD THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 24.93 CRORE AND ODD. ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 8 OF 19 (6) THE LD. AR OF THE ASSESSEE ALSO RELIED ON THE CASES OF CIT VS. KABUL CHAWLA {380 ITR 0573}[DEL], PR. CIT & ORS. VS. MEET A GUTGUTIA {395 ITR 0526} [DEL], EXCEL INFOTECH LTD. VS. DCIT {3492 TO 3494/DEL/2014}[DEL TRIB] AND SANJAY AGGARWAL VS. DCIT {150 ITD 0692}[DEL TRIB] . THE LD. AR OF THE ASSESSEES ALSO RELIED ON CONSOLIDATED ORDER DAT ED 31.10.2018 OF CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASES OF SH. BRIJ BHUSHAN SINGAL VS. ACIT [IN ITA NO. 1412/DEL/2018 FOR AY 2010-11; ITA NO. 1413/DEL/ 2018 FOR AY 2011- 12 AND ITA NO. 1414/DEL/2018 FOR AY 2012-13], SMT. RITU SINGAL VS. ACIT [IN ITA NO. 1476/DEL/2018 FOR AY 2010-11; ITA NO. 1 477/DEL/2018 FOR AY 2011-12 AND ITA NO. 1478/DEL/2018 FOR AY 2012-13], SMT. UMA SINGAL VS. ACIT [ITA NO. 1482/DEL/2018 FOR AY 2010-11] AND SH. NEERAJ SINGAL VS. ACIT [IN ITA NO. 1485/DEL/2018 FOR AY 2010-11; ITA NO. 1486/DEL/2018 FOR AY 2011-12 AND ITA NO. 1487/DEL/2 018 FOR AY 2012- 13]. (7) WE HAVE HEARD BOTH SIDES PATIENTLY. WE HAVE PERUSE D MATERIALS ON RECORD CAREFULLY. WE HAVE CONSIDERED THE JUDICIAL PRECEDEN TS MENTIONED IN THE RECORDS OF THESE CASES IN ITAT AND ALSO THE JUDICIAL PRECEDENT S BROUGHT TO OUR NOTICE IN THE COURSE OF HEARING BEFORE US. THE FACTS OF THESE CAS ES ARE NOT IN DISPUTE. BOTH SIDES AGREE THAT THE ADDITIONS MADE BY THE AO, IN THE CAS E OF THE THREE CONCERNED ASSESSEES, ARE NOT BASED ON ANY INCRIMINATING MATER IALS FOUND IN THE COURSE OF SEARCH U/S 132 OF I.T. ACT. BOTH SIDES AGREE THAT T HERE WAS NO PENDING ASSESSMENT IN THE CASE OF ANY OF THE THREE CONCERNED ASSESSEES ON THE DATE OF SEARCH U/S 132 OF I.T. ACT I.E. ON 12.01.2011. FROM PERUSAL OF RECO RDS, WE FIND THAT IN THE CASE OF ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 9 OF 19 SALUJA CONSTRUCTION CO. LTD. EARLIER RETURN U/S 139 (1) OF I.T. ACT ON 31.07.2006 PURSUANT TO WHICH ASSESSMENT ORDER U/S 143(3) OF I. T. ACT ON 28.12.2007. NO ASSESSMENT PROCEEDING WAS PENDING ON DATE OF SEARCH I.E. 12.01.2011. THEREFORE, THE AFORESAID ASSESSMENT ORDER DATED 14.03.2014, WA S NOT IN PURSUANCE OF AN ABATED ASSESSMENT WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A(1) OF I.T. ACT. IN THE CASE OF SMT. ARCHANA SALUJA EARLIER RETURN U/ S 139(1) OF I.T. ACT ON 31.07.2006 PURSUANT TO WHICH ASSESSMENT ORDER U/S 1 43(3) OF I.T. ACT ON 28.12.2007. NO ASSESSMENT PROCEEDING WAS PENDING ON DATE OF SEARCH I.E. 12.01.2011. THEREFORE, THE AFORESAID ASSESSMENT ORD ER DATED 14.03.2014, WAS NOT IN PURSUANCE OF AN ABATED ASSESSMENT WITHIN THE MEA NING OF 2 ND PROVISO TO SECTION 153A(1) OF I.T. ACT. IN THE CASE OF ANKUSH SALUJA, EARLIER RETURN U/S 139(1) OF I.T. ACT WAS FILED ON 31.07.2006, HOWEVER, THIS WAS NOT SELECTED FOR SCRUTINY AS NOTICE U/S 143(2) OF I.T. ACT WAS NOT ISSUED IN RESPECT OF THIS RETURN. STATUTORY TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF I.T. ACT EXPIRED O N 31.07.2007. THUS, THERE WAS NO PENDING ASSESSMENT ON THE DATE OF SEARCH I.E. 12.01 .2011. THEREFORE, THE AFORESAID ASSESSMENT ORDER DATED 14.03.2004 WAS ALSO NOT IN R ESPECT OF ANY IN PURSUANCE OF AN ABATED ASSESSMENT WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A(1) OF I.T. ACT. (8) WE FIND THAT THE CASE OF KABUL CHAWLA VS. CIT (SUPRA) , PR. CIT & ORS. VS. MEETA GUTGUTIA (SUPRA) RELIED UPON BY LD. AR FOR ASSESSEE; AND THE CASE O F SMT. DAYAWANTI GUPTA VS. CIT (2016) 390 ITR 496 (DE L) WERE CONSIDERED IN THE CASE OF THE HBN DAIRIES & ALLIED LTD. VS. ACIT AND IN ACCORDANCE WITH THE MAJORITY VIEW OF THE MEMBERS OF ITAT DELHI BENCHES, DELHI, THE ISSUE WAS DECIDED IN ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 10 OF 19 FAVOUR OF THE ASSESSEE VIDE ORDER DATED 25.04.2018 READ WITH ORDER DATED 24.05.2018 IN ITA NOS 1393, 1394 & 1395/DEL/2013 FO R ASSESSMENT YEARS 2004-05, 2005-06 & 2006-07 RESPECTIVELY. THE RELEVANT PORTIO N OF THE AFORESAID ORDER DATED 25.04.2018 IS REPRODUCED AS UNDER:- 2. BEFORE PROCEEDING WITH THE MATTER, IT IS RELEV ANT TO NOTE THAT BOTH THE LEARNED MEMBERS, APART FROM DIFFERING ON THE MERITS OF THE CASE, ALSO COULD NOT BE IN UNISON IN MAKING REFERENCE U/S 255(4) OF THE ACT. THE LD. JM, BEING THE SENIOR MEMBER, PROPOSED THE FOLLOWING QUESTION FOR REFERENCE TO TH E THIRD MEMBER: - WHETHER, IN THE ABSENCE OF RECOVERY OF ANY INCRIMI NATING MATERIAL DURING THE COURSE OF SEARCH AGAINST THE ASSESSEE, WHEN ASSESSM ENTS HAVE ALREADY COMPLETED, AUTHORITIES BELOW WERE JUSTIFIED IN INVO KING SECTION 153A OF THE I.T. ACT FOR THE PURPOSE OF MAKING ADDITIONS BY DISALLOW ING CLAIM OF LOSSES AND BROUGHT FORWARD OF LOSSES QUA EACH OF ASSESSMENTS U NDER APPEALS I.E 2004-05, 2005-06 AND 2006-07? 3 . ON THE OTHER HAND, THE LD. AM PROPOSED THE FOLLOW ING TWO QUESTIONS:- (A) WHETHER, WHEN WE ARE PRESENTED WITH TWO PRECED ENTS OF EQUAL STRENGTH FROM HIGHER COURT(S), AND SPECIALLY WHEN THE EARLIE R PRECEDENT HAS ALREADY BEEN CONSIDERED IN THE LATER ONE; HARMONIOUS READIN G OF PRECEDENTS REQUIRES THAT BOTH PRECEDENTS ARE TREATED BY US WITH EQUAL R ESPECT; THAT THE DISTINGUISHABLE FACTS OF THE TWO PRECEDENTS ARE APP RECIATED; AND THAT THE PRECEDENT WHICH IS CLOSER TO FACTS OF THE CASE BEFO RE US, IS PREFERRED BY US FOR OUR GUIDANCE? (B) WHETHER, ADDITIONS CAN BE MADE IN ASSESSMENTS U /S 153A OF I.T. ACT EVEN FOR THOSE ASSESSMENT YEARS IN RESPECT OF WHICH NO I NCRIMINATING MATERIAL WAS UNEARTHED DURING SEARCH U/S 132 OF I.T. ACT EVEN IF NO ASSESSMENTS OR REASSESSMENTS ARE PENDING FOR THOSE ASSESSMENT YEAR (S) ON THE DATE OF SEARCH U/S 132 OF I.T. ACT; PROVIDED SOME INCRIMINATING M ATERIAL IN THE CASE OF THE ASSESSEE FOR ANY ASSESSMENT YEAR(S) { REFERRED TO I N CLAUSE (B) OF SECTION 153A(1) OF INCOME TAX ACT} IS UNEARTHED AS A RESULT OF SEARCH U/S 132 OF I.T. ACT WHETHER BY WAY OF STATEMENT U/S 132(4) OF I. T. ACT OR BY WAY OF UNDISCLOSED INVESTMENT, OR BY WAY OF INCRIMINATING DOCUMENTS, OR IN ANY OTHER MANNER? 4. I HAVE GONE THROUGH THE RELEVANT MATERIAL ON REC ORD AND CONSIDERED THE RIVAL SUBMISSIONS IN SO FAR AS UNDERSTANDING THE DIFFEREN CE OF OPINION BETWEEN THE TWO MEMBERS IS CONCERNED. IN MY CONSIDERED VIEW, THE CO NTROVERSY ON THIS ISSUE GETS PROPERLY REFLECTED THROUGH FOLLOWING QUESTION: - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND AS PER LAW, THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE ADDITIONS MADE BY THE AO FOR THE YEARS OF COMPLETED ASSESSMENTS, WHICH WERE NOT BASE D ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATING TO SUCH YEARS AND CONSEQUENTLY DENYING THE BENEFIT OF CARRY FORWARD A ND SET OFF OF THE RESULTANT LOSS IN SUBSEQUENT YEAR? ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 11 OF 19 5. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT IN HBN GROUP ON 20.11.20 09. THIS GROUP IS ENGAGED IN DIVERSE BUSINESSES RANGING FROM DAIRY DEVELOPMENT A ND MARKETING OF DAIRY PRODUCTS; REAL ESTATE DEVELOPMENT; HOME LOAN FINANCE AND RUNN ING A BROADCAST CHANNEL, NAMELY, CNEB THROUGH VARIOUS COMPANIES. NOTICE WAS ISSUED U/S 153A OF THE ACT TO THE ASSESSEE, INTER ALIA, FOR THE THREE YEARS UNDER CON SIDERATION. IN RESPONSE, THE ASSESSEE FILED RETURNS OF INCOME U/S 139 READ WITH SECTION 1 53A OF THE ACT ON 10.02.2011 DECLARING NIL INCOME FOR SUCH YEARS. IN THE COMPUT ATION OF INCOME, THE ASSESSEE DECLARED LOSS OF RS.23,05,880/- FOR THE ASSESSMENT YEAR 2004-05; LOSS OF RS.23,59,200 FOR THE ASSESSMENT YEAR 2005-06; AND AS AGAINST SO ME POSITIVE BUSINESS INCOME FOR THE ASSESSMENT YEAR 2006-07, IT CLAIMED SET OFF OF THE AMOUNT OF BROUGHT FORWARD LOSSES FOR THE ASSESSMENT YEARS 2003-04, 2004-05 A ND 2005-06. THE ASSESSING OFFICER COMPLETED ASSESSMENTS ON 29.12.2011 DETERMINING NIL INCOME FOR THE ASSESSMENT YEAR 2004-05; NIL INCOME FOR THE ASSESSMENT YEAR 2005-06 ; AND TOTAL INCOME OF RS.52,49,283/- FOR THE ASSESSMENT YEAR 2006-07. IN OTHER WORDS, HE DID NOT ALLOW THE CARRY FORWARD OF THE LOSSES FOR THE ASSESSMENT YEAR S 2003-04, 2004-05 AND 2005-06 AND AS THE SEQUITUR, DID NOT PERMIT THE SET OFF OF SUCH BROUGHT FORWARD LOSSES AGAINST THE POSITIVE INCOME FOR THE ASSESSMENT YEAR 2006-07 . THE ASSESSEE REMAINED UNSUCCESSFUL BEFORE THE LD. CIT(A) AS WELL. AGGRIE VED THEREBY, IT CAME UP BEFORE THE TRIBUNAL CONTENDING THAT SUCH LOSSES SHOULD BE ALLO WED TO BE CARRIED OVER FOR SET OFF AGAINST THE POSITIVE INCOME FOR THE ASSESSMENT YEAR 2006-07. THE CONTENTION OF THE ASSESSEE FOR CARRY FORWARD WAS BASED ON THE PREMISE THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RELATION T O THESE ASSESSMENT YEARS AND, HENCE, THE ASSESSING OFFICER WAS NOT WITHIN HIS POW ER TO DISALLOW THE LOSS CLAIMED IN THE RETURNS OF INCOME FOR THESE YEARS. THE LD. AM, WHO PASSED THE DRAFT ORDER FIRST, NOTICED THAT THE ASSESSING OFFICER DISALLOWED THE L OSS CLAIMED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 ON THE GROUND THAT CLAIM OF VARIOUS EXPENSES WAS NOT VERIFIABLE. IN THE ABSENCE OF SUCH DETAILS FURNISHED BEFORE THE LD. CIT(A) AS WELL AS THE TRIBUNAL, HE APPROVED THE ACTION OF THE AUTHORITIES BELOW. HE, HOWEVER, DID NOT APPROVE THE VIEW POINT OF THE REVENUE IN NO T ALLOWING SET OFF OF LOSS FOR THE ASSESSMENT YEAR 2003-04 AGAINST THE INCOME FOR THE ASSESSMENT YEAR 2006-07 AND FOR THIS LIMITED PURPOSE, REMITTED THE MATTER TO THE FI LE OF ASSESSING OFFICER FOR FRESH ADJUDICATION. THE LD. JM DID NOT CONCUR WITH THE V IEW CANVASSED BY THE LD. AM IN NOT ALLOWING THE LOSS FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06. HE OPINED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING THE COUR SE OF SEARCH IN RESPECT OF EXPENSES CLAIMED AS DEDUCTION AND, HENCE, THE LOSS SO DETERMINED WAS ELIGIBLE FOR CARRY FORWARD TO BE SET OFF AGAINST THE INCOME FOR ASSESSMENT YEAR 2006-07. THAT IS HOW, THE MATTER HAS BEEN PLACED BEFORE ME FOR ADJUD ICATION AS THIRD MEMBER. 6. I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELE VANT MATERIAL ON RECORD. THE SHORT CONTROVERSY IS WHETHER THE LOSS DECLARED BY THE ASS ESSEE IN ITS RETURNS U/S 153A OF THE ACT FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 AT RS.23,05,880/- AND RS.23,59,200/- RESPECTIVELY BE CARRIED FORWARD AND SET OFF AGAINST THE POSITIVE INCOME FOR THE ASSESSMENT YEAR 2006-07. THE LD. AM HAS S PECIFICALLY RECORDED ON PAGE 15 OF HIS PROPOSED ORDER THAT: THOUGH NO INCRIMINATING M ATERIAL RELEVANT FOR ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 AGAINST THE ASSE SSEE, WERE UNEARTHED DURING THE COURSE OF SEARCH U/S 132 OF THE IT ACT; BUT INCRIMI NATING MATERIAL RELEVANT FOR OTHER YEARS REFERRED TO IN CLAUSE (B) OF SECTION 153A(1) OF THE IT ACT WERE INDEED UNEARTHED. HE CONSIDERED THE JUDGMENTS OF THE HON 'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA VS. CIT (2016) 380 ITR 573 (DELHI) AND SMT. DAYAWANTI THROUGH SMT. SUNITA GUPTA & ANR. VS. CIT & ANR. (2017) 390 ITR 0496 (DELHI) AND THUS OBSERVED ON PAGES 19 AND 20 OF HIS PROPOSED ORDER T HAT WHEN TWO PRECEDENTS OF EQUAL STRENGTH FROM HIGHER COURTS ARE AVAILABLE, THE PRE CEDENT WHICH IS CLOSER TO THE FACTS OF ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 12 OF 19 THE CASE SHOULD BE PREFERRED. EX CONSEQUENTI, HE APPLIED THE JUDGMENT IN THE CASE OF SMT. DAYAWANTI (SUPRA) TO HOLD THAT : EVEN IN RESP ECT OF THOSE ASSESSMENT YEARS IN RESPECT OF WHICH NO INCRIMINATING MATERIALS WAS UNE ARTHED DURING SEARCH U/S 132 OF THE IT ACT; AND EVEN IF NO ASSESSMENTS OR RE-ASSESS MENTS ARE PENDING FOR THOSE ASSESSMENT YEAR (S) ON THE DATE OF SEARCH U/S 132 O F THE IT ACT; THERE IS NO OBSTACLE IN MAKING ADDITION U/S 153A OF THE IT ACT PROVIDED SOM E INCRIMINATING MATERIAL IN THE CASE OF THE ASSESSEE FOR ANY ASSESSMENT YEAR (S) (R EFERRED TO IN CLAUSE (B) OF SECTION 153A(1) OF THE INCOME-TAX ACT) IS UNEARTHED AS A RE SULT OF SEARCH U/S 132 OF THE IT ACT WHETHER BY STATEMENT U/S 132(4) OF THE IT ACT OR BY WAY OF UNDISCLOSED INVESTMENT OR BY WAY OF INCRIMINATING DOCUMENTS OR IN ANY OTHER M ANNER. THIS IS HOW, HE HELD THAT THE DISALLOWANCE OF LOSS CLAIMED BY THE ASSESSEE FO R THE ASSESSMENT YEARS 2004-05 AND 2005-06 ON THE GROUND OF CLAIM OF VARIOUS EXPENSES MADE BY THE ASSESSEE, NOT BEING FULLY VERIFIABLE, WAS IN ORDER. THE LD. JM REITERA TED THE FACT THAT NO INCRIMINATING MATERIAL OR DOCUMENT OR EVIDENCE WAS FOUND DURING T HE COURSE OF SEARCH IN RELATION TO SUCH TWO ASSESSMENT YEARS AND, HENCE, THE LOSS SO C LAIMED FOR CARRY FORWARD AND SET OFF SHOULD BE ALLOWED AGAINST THE INCOME FOR THE A. Y. 2006-07. 7. IT HAS BEEN NOTICED ABOVE THAT SEARCH IN THIS CA SE WAS CONDUCTED ON 20.11.2009. THE ASSESSMENT YEARS UNDER CONSIDERATION ARE 2004-0 5, 2005-06 AND 2006-07. THE ASSESSEE FILED RETURNS FOR THESE YEARS ORIGINALLY U /S 139 AT THE MATERIAL TIME. WHEREAS THE RETURN FOR THE ASSESSMENT YEAR 2004-05 WAS PROC ESSED U/S 143(1) OF THE ACT, ASSESSMENTS WERE COMPLETED U/S 143(3) IN RESPECT OF THE ASSESSMENT YEARS 2005-06 AND 2006-07. THE ASSESSEES PROFIT & LOSS ACCOUNT FOR THE ASSESSMENT YEAR 2004-05 SHOWS INCURRING OF EXPENSES AT RS.95.21 LAC AGAINST WHICH LOSS OF RS.24.30 LAC WAS COMPUTED AND CLAIMED IN THE RETURN OF INCOME. THE RETURN OF THE ASSESSEE WAS PROCESSED U/S 143(1) DETERMINING LOSS AT THE DECLAR ED FIGURE. PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 SHOWS INCURRING OF EXPENSES AT RS.1.31 CRORE AND THE ASSESSEE FILED RETURN AT A LOSS OF RS .23,59,200/-. AFTER MAKING SOME DISALLOWANCE, THE ASSESSING OFFICER COMPLETED ASSES SMENT U/S 143(3) ON 30.11.2007 AT A LOSS OF RS.18.17 LAC. IN SO FAR AS THE ASSESSMEN T YEAR 2006-07 IS CONCERNED, THE ASSESSEE FILED RETURN AND THE ASSESSMENT WAS COMPLE TED U/S 143(3) ON 02.12.2008 DETERMINING NIL INCOME, BUT CHARGING TAX U/S 115JB ON BOOK PROFIT OF RS.10,90,440/-. THUS, IT IS EVIDENT THAT THE ASSESSMENTS FOR THE AS SESSMENT YEARS 2004-05 TO 2006-07 STOOD COMPLETED ON THE DATE OF SEARCH ON 20.11.2009 . 8. AT THIS JUNCTURE, IT IS SIGNIFICANT TO NOTE THAT WHEN A SEARCH IS CONDUCTED, THERE CAN BE TWO TYPES OF ASSESSMENT YEARS, NAMELY, COMPL ETED ASSESSMENTS AND NON- COMPLETED OR PENDING ASSESSMENTS. ASSESSMENT YEARS HAVING COMPLETED ASSESSMENTS MEAN THE YEARS FOR WHICH EITHER THE ASSESSMENTS STO OD COMPLETED BY THE AO U/S 143(3) OR SECTION 144 BEFORE THE DATE OF SEARCH OR THE YEA RS FOR WHICH THE REGULAR ASSESSMENTS WERE NOT TAKEN UP AFTER THE FILING OF THE RETURNS B Y THE ASSESSEE AND FURTHER THAT THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) STOOD EXPI RED ON THE DATE OF SEARCH. 9. AS PER THE SCHEME UNDER THE ACT, A RETURN FILED BY THE ASSESSEE IS FIRST PROCESSED BY THE A.O. U/S 143(1)(A) OF THE ACT IN WHICH TOTAL IN COME IS COMPUTED AFTER MAKING THE SPECIFIED ADJUSTMENTS. AS PER CLAUSE (B), TAX AND I NTEREST, IF ANY, IS COMPUTED ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A) . CLAUSES (D) AND (E) OF SECTION 143(1) PROVIDE THAT AN INTIMATION SHALL BE SENT TO THE ASSESSEE SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUN D DUE TO, THE ASSESSEE AND THE AMOUNT OF REFUND DUE TO THE ASSESSEE IN PURSUANCE O F THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE ASSESSEE. PROCESSING OF THE RETURN U/S 143(1) AND THE CONSEQUENTIAL ISSUING OF INTIMATION IS CONSTRUED AS PASSING OF THE ASSESSMENT ORDER EXCEPT WHERE A NOTICE U/S 143(2) IS ISSUED FOR A SC RUTINY ASSESSMENT U/S 143(3) OF THE ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 13 OF 19 ACT. IN A CASE, WHERE NOTICE U/S 143(2) IS ISSUED, THE PROCESSING OF RETURN U/S 143(1) AND THE CONSEQUENTIAL ISSUANCE OF INTIMATION DOES N OT AMOUNT TO PASSING OF THE ASSESSMENT ORDER BECAUSE THE ASSESSMENT ORDER, IN S UCH CIRCUMSTANCES, IS PASSED AFTER DUE SCRUTINY U/S 143(3) OF THE ACT. THERE CAN BE O NLY ONE ASSESSMENT ORDER FOR ONE YEAR. THE CRUX OF THE MATTER IS THAT WHERE NO NOTIC E U/S 143(2) IS ISSUED WITHIN THE PERMISSIBLE MAXIMUM TIME, THE ISSUANCE OF INTIMATIO N ON PROCESSING THE RETURN U/S 143(1) OF THE ACT, IS CONSTRUED AS COMPLETION OF AS SESSMENT. HOWEVER, WHERE SUCH NOTICE IS ISSUED, THE INTIMATION ISSUED U/S 143(1)( A) LOSES THE CHARACTER OF AN ASSESSMENT ORDER, WHICH IN THAT CASE, IS PASSED U/ S 143(3) AFTER THOROUGH SCRUTINY. TO SUM UP, AN ASSESSMENT IS TERMED AS COMPLETED ON THE PASSING OF AN ORDER U/S 143(3) OF THE ACT, BUT, IN A CASE, WHERE A RETURN HAS BEEN FI LED BY THE ASSESSEE, WHICH IS PROCESSED U/S 143(1), BUT NO FURTHER NOTICE U/S 143 (2) IS ISSUED AND THE SAME CANNOT BE ISSUED BECAUSE OF THE TIME LIMIT SETTING IN, THE IN TIMATION SENT TO THE ASSESSEE U/S 143(1) IS ALSO TREATED AS A COMPLETED ASSESSMENT FO R THIS PURPOSE. 10. AU CONTRAIRE, THE ASSESSMENT YEARS HAVING NO N-COMPLETED OR PENDING ASSESSMENTS MEAN THE YEARS FOR WHICH THE ASSESSMENT S WERE PENDING ON THE DATE OF SEARCH WHICH ARE ABATED IN TERMS OF THE EXPRESS PRO VISIONS OF THE SECOND PROVISO TO SECTION 153A. THIS WILL ALSO EMBRACE THE YEARS IN R ESPECT OF WHICH THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) IS STILL AVAILABLE WITH T HE AO AS ON THE DATE OF SEARCH. 11. ADVERTING TO THE EXTANT FACTUAL MATRIX, IT IS S EEN THAT THE ASSESSMENT YEARS UNDER CONSIDERATION FALL IN THE CATEGORY OF `COMPLETED AS SESSMENTS AND NOT THE `PENDING ASSESSMENTS ABATING ON THE DATE OF SEARCH. BOTH TH E LD. MEMBERS HAVE CONSIDERED THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF KABUL CHAWLA (SUPRA). THE FACTS OF THAT CASE ARE THAT A SEARCH WAS CARRIED OUT U/S 132 ON 15.11.2007 ON BPTP LTD., A LEADING REAL ESTATE DEVE LOPER OPERATING ALL OVER INDIA AND SOME OF ITS GROUP COMPANIES INCLUDING THE PREMISES OF THE ASSESSEE, WHO OWNED AND CONTROLLED THE GROUP. NO ASSESSMENT PROCEEDINGS WER E PENDING FOR THE ASSESSMENT YEARS 2002-03, 2005-06 AND 2006-07 AS ON THE DATE O F THE SEARCH. THE ASSESSMENTS FOR SUCH ASSESSMENTS YEARS HAD ALREADY BEEN MADE U/ S 143(1) OF THE ACT. THE ASSESSEE FILED RETURNS FOR THE THREE ASSESSMENT YEARS DECLAR ING CERTAIN INCOME. THE ASSESSMENTS WERE COMPLETED U/S 153A FOR THE CONCERNED ASSESSMEN T YEARS MAKING ADDITIONS, INTER ALIA, ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS AND D EEMED DEDUCTION U/S 2(22)(E) OF THE ACT. IT WAS SUBMITTED BEFORE THE LD. CIT(A) TH AT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH SO AS TO WARRANT AN ADDITION U/S 2 (22)(E) OF THE ACT. THE LD. CIT(A) HELD THAT THE ADDITIONS NEED NOT BE RESTRICTED ONLY TO THE SEIZED MATERIAL. THE TRIBUNAL CONCLUDED THAT: IF SOME INCRIMINATING MATERIAL IS FOUND IN RESPECT OF SUCH ASSESSMENT YEARS 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 CO URSE OF SEARCH. THAT IS HOW, THE ADDITIONS MADE U/S 2(22)(E), WHICH WERE NOT BASED O N ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, WERE HELD TO BE UNSUSTAINABLE IN LAW AND, HENCE, DELETED. THE HON'BLE HIGH COURT APPROVED THE VIEW TAKEN BY THE TRIBUNAL. IT SUMMARIZED THE LEGAL POSITION IN PARA 37 OF ITS JUD GMENT AS UNDER:- 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 AFOREM ENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 14 OF 19 TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING T HE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON T HE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWER S IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED 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 153 A DOES NOT SAY THAT ADDI TIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED 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 LETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING 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 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. 12. IT IS EVIDENT FROM THE ABOVE JUDGMENT THAT ONCE A SEARCH TAKES PLACE U/S 132 OF THE ACT, THE ASSESSEE IS OBLIGED TO FILE RETURNS FO R THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TOOK PLACE. IN SO FAR AS THE COMPLETED ASSE SSMENTS AS ON THE DATE OF THE SEARCH ARE CONCERNED, THE SAME ARE TO BE REPEATED AS INCREASED BY CERTAIN ADDITIONS BASED ON INCRIMINATING MATERIAL FOUND DURING THE CO URSE OF SEARCH. IN OTHER WORDS, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE CO URSE OF SEARCH, THEN, THE AMOUNT OF TOTAL INCOME DETERMINED UNDER THE EARLIER COMPLETED ASSESSMENTS, IS TO BE ADOPTED IN SUCH FRESH ASSESSMENTS U/S 153A WITHOUT MAKING ANY FURTHER ADDITION. 13. THE LD. AM HAS PREFERRED THE JUDGMENT IN DAYAWA NTI (SUPRA) OVER KABUL CHAWLA (SUPRA) BY FINDING IT MORE CLOSER TO THE FACTS OF T HE PRESENT CASE. IN THE CASE OF DAYAWANTI (SUPRA), A SEARCH AND SEIZURE OPERATION W AS CARRIED OUT ON 22.03.2006. ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 15 OF 19 THE ASSESSEE, ALONG WITH OTHER FAMILY MEMBERS, SURR ENDERED RS.3.5 CRORE AT THE TIME OF SEARCH AS ADDITIONAL INCOME IN RESPECT OF `BUSIN ESS CARRIED ON OUTSIDE THE BOOKS OF ACCOUNT IN CONNECTION WITH PRODUCTION AND SALE OF GUTKA. SHE FURTHER ADMITTED IN HER STATEMENT NOT TO HAVE ANY SOURCE OF INCOME OR A NY BANK ACCOUNT. SHE STILL FURTHER ADMITTED TO BEING PROPRIETOR ONLY ON RECORD AND, IN FACT, SHRI ANUP GUPTA LOOKED AFTER ALL THE OPERATIONS ALONG WITH THE HELP OF OTH ER FAMILY MEMBERS. NOTICE U/S 153A WAS ISSUED REQUIRING THE ASSESSEE TO FURNISH RETURN S. IN RESPONSE, SHE FILED A PHOTO COPY OF THE RETURN EARLIER FILED U/S 139(1) DECLARI NG GROSS PROFIT OF RS.7.30 LAC ON SALES OF RS.69.28 LAC, YIELDING GROSS PROFIT RATE O F 10.55%. SINCE NO PROPER BOOKS OF ACCOUNT WERE PRESENTED, THE ASSESSING OFFICER REJEC TED THE BOOK VERSION U/S 145 AND ESTIMATED THE SALES AT RS.1 CRORE. HE APPLIED GP R ATE OF 20% AND DETERMINED TOTAL INCOME AT RS.45.90 LAC AS AGAINST THE DECLARED INCO ME OF RS.2.42 LAC. THE CIT (A) REDUCED THE GROSS PROFIT RATE TO BE APPLIED AT 12%. SOME ADDITIONS WERE SUSTAINED AND OTHERS WERE DELETED. THE TRIBUNAL REJECTED THE PLEA OF THE ASSESSEE THAT SINCE NO MATERIAL WAS RECOVERED DURING THE COURSE OF SEARCH, FINALIZED ASSESSMENTS FOR THE PERIODS COVERED BY THE BLOCK YEARS COULD NOT BE REO PENED. THE ASSESSEE RELIED ON THE JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA) AND AR GUED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND, NO ADDITIONS COUL D BE MADE IN RESPECT OF THE COMPLETED ASSESSMENTS. THE HON'BLE HIGH COURT DISM ISSED THE APPEALS ON THE GROUND THAT THE ADDITIONS WERE NOT BASELESS AS THES E WERE BASED ON THE INFERENCES DRAWN BY THE ASSESSING OFFICER. IT FURTHER HELD TH AT IF THE ELEMENT OF GUESS WORK HAS SOME REASONABLE NEXUS WITH THE STATEMENT RECORDED A ND DOCUMENTS SEIZED, THEN, THE ADDITIONS CAN BE SUSTAINED. 14. IT IS, THUS, SEEN THAT WHEREAS THE JUDGMENT IN KABUL CHAWLA (SUPRA) CLEARLY LAYS DOWN THAT IN THE ABSENCE OF ANY INCRIMINATING MATER IAL FOUND DURING THE COURSE OF SEARCH, NO FRESH ADDITION CAN BE MADE IN RESPECT OF COMPLETED ASSESSMENTS, THE JUDGMENT IN THE CASE OF SMT. DAYAWANTI (SUPRA) IS PECULIAR TO ITS FACTS INASMUCH AS THE ADDITION IN THAT CASE WAS BASED ON THE ASSESSEE S STATEMENT MADE AT THE TIME OF SEARCH ADMITTING : `ADDITIONAL INCOME IN RESPECT O F BUSINESS CARRIED ON OUTSIDE THE BOOKS OF ACCOUNT IN CONNECTION WITH PRODUCTION AND SALE OF GUTKA. IT WAS NOT A CASE IN WHICH NO INCRIMINATING MATERIAL WAS FOUND. RATHE R THE ASSESSEES STATEMENT GIVEN AT THE TIME OF SEARCH CONFIRMING THE CARRYING ON OF BUSINESS OUTSIDE THE BOOKS OF ACCOUNT WAS EXTRAPOLATED TO THE EARLIER YEARS AS WE LL. 15. TURNING TO THE FACTS OF THE INSTANT CASE, IT IS SEEN THAT THE ASSESSING OFFICER HAS NOT DISALLOWED ANY SPECIFIC AMOUNT OF EXPENSES ON A CCOUNT OF ANY INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. IT IS PERTINE NT TO NOTE THAT THE ASSESSEE INCURRED EXPENSES OF RS.95.21 LAC FOR THE ASSESSMENT YEAR 20 04-05. WHAT THE ASSESSING OFFICER HAS DONE IS TO DISALLOW LOSS OF RS.23.05 LAC SIMPLY ON THE GROUND THAT THE EXPENSES INCURRED BY THE ASSESSEE WERE NOT FULLY VERIFIABLE. IT IS NOT EVEN A CASE OF DISALLOWING ANY PARTICULAR AMOUNT OF EXPENSE FOR WHATEVER REASO N. THUS, IT IS MANIFEST THAT ONLY A PART OF THE EXPENSES, REPRESENTING LOSS OF RS.23. 05 LAC, WERE DISALLOWED AND THAT TOO, ON THE GROUND THAT COMPLETE DETAILS IN RESPECT OF THE EXPENSES INCURRED WERE NOT FURNISHED BY THE ASSESSEE DURING THE COURSE OF PROC EEDINGS U/S 153A OF THE ACT. SIMILAR IS THE POSITION FOR THE ASSESSMENT YEAR 200 5-06 IN WHICH THE ASSESSEE INCURRED EXPENSES OF RS.1.31 CRORE AND CLAIMED LOSS OF RS.23.59 LAC. THE ASSESSING OFFICER, IN THE PROCEEDINGS U/S 153A, REDUCED SUCH LOSS TO RS. NIL, THEREBY IMPLYING THAT ONLY A PART OF THE EXPENSES TO THE EXTENT OF THE AMOUNT OF LOSS, WAS DISALLOWED FOR NON-FURNISHING OF NECESSARY DETAILS IN SUPPORT OF EXPENSES. THE CRUX OF THE MATTER IS THAT ONLY A PART OF THE EXPENSES REPRESENTING LO SS FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 WAS DISALLOWED AND NOT ALLOWED TO BE CA RRIED FORWARD FOR SET OFF AGAINST THE INCOME FOR ASSESSMENT YEAR 2006-07 SIMPLY ON TH E GROUND THAT EXPENSES WERE NOT ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 16 OF 19 FULLY VERIFIABLE SINCE COMPLETE DETAILS WERE NOT FU RNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 16. ADMITTEDLY, ASSESSMENTS FOR THE A.YS. 2004-05 AND 2005-06 STOOD COMPLETED ON THE DATE OF SEARCH. THE AMOUNT OF LOSS FINALLY DET ERMINED FOR THE A.Y. 2004-05 IN THE ORIGINAL ASSESSMENT WAS RS.23,05,880/-. SIMILARLY, THE AMOUNT OF LOSS FINALLY DETERMINED BY THE AO IN THE ORIGINAL ASSESSMENT ORD ER PASSED U/S 143(3) ON 30.11.2007 FOR THE ASSESSMENT YEAR 2005-06 WAS RS.1 8,17,685/-. IN THE FRESH ASSESSMENTS U/S 153A, THE ASSESSING OFFICER WAS AUT HORIZED TO REPEAT THE ORIGINALLY ASSESSED INCOME (LOSS) PLUS FRESH ADDITIONS, IF ANY , BASED ON THE INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. ADMITTEDLY, NO INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF THE ASSESSMENT YEARS UNDER CONS IDERATION. THERE IS NO REFERENCE WHATSOEVER TO ANY INCRIMINATING MATERIAL FOUND DURI NG THE COURSE OF SEARCH CASTING SHADOW OF DOUBT ON THE GENUINENESS OF SUCH EXPENSES . SINCE THESE EXPENSES WERE CLAIMED AS DEDUCTION IN THE ORIGINAL RETURNS AND TH E ASSESSING OFFICER ACCEPTED THE LOSS SO DECLARED EXCEPT FOR MAKING SOME MODIFICATIO N FOR THE ASSESSMENT YEAR 2005- 06, THE AO WAS SUPPOSED TO RESTRICT HIS EXERCISE OF COMPLETING ASSESSMENTS U/S 153A ONLY TO THE AMOUNT OF INCOME/LOSS DETERMINED ORIGIN ALLY. IT WAS NOT OPEN TO HIM TO VENTURE TO RE-EXAMINE THE DETAILS IN RESPECT OF EXP ENSES IN ASSESSMENT PROCEEDINGS U/S 153A READ WITH SECTION 143(3) OF THE ACT FOR TH E PATENT REASON THAT, ADMITTEDLY, NO INCRIMINATING MATERIAL IN RESPECT OF SUCH EXPENSES WAS FOUND DURING THE COURSE OF SEARCH. 17. THE CONTENTION OF THE LD. DR THAT THERE WAS SOME INCRIMINATING MATERIAL FOR SUBSEQUENT YEARS AND THE SAME SHOULD BE CONSIDERED TO HAVE BEARING ON THE DISALLOWANCE OF LOSS FOR THE TWO YEARS UNDER CONSID ERATION, IS INCAPABLE OF ACCEPTANCE FOR MORE THAN ONE REASON. FIRSTLY, THE EXISTENCE OF AN INCRIMINATING MATERIAL FOR THE RELEVANT YEAR IS SINE QUA NON FOR MAKING ANY DISALLOWANCE OF EXPENSES IN RESPECT OF THE COMPLETED ASSESSMENTS. T HE HONBLE SUPREME COURT IN CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (2017) 397 ITR 344 (SC) HAS ACCENTUATED THE RELEVANCE OF THE INCRIMINATING MATERIAL PERTAIN ING TO THE RELEVANT YEAR ALONE, THOUGH IN THE CONTEXT OF SECTION 153C OF THE ACT. IN THAT CASE, IT HAS BEEN HELD THAT WHERE THE INCRIMINATING MATERIAL WAS FOUND TO BE PE RTAINING TO A PARTICULAR YEAR, THERE WAS NO VALID SATISFACTION FOR THE OTHER YEARS . SECONDLY, IT IS NOT EVEN A CASE IN WHICH SOME INCRIMINATING MATERIAL INDICATING RECORD ING OF BOGUS EXPENSES IN THE SUBSEQUENT YEARS WAS FOUND, WHICH COULD HAVE REFLEC TION ON THE YEARS IN QUESTION. THE LD. DR HAS NOT DRAWN MY ATTENTION TOWARDS ANY P ART OF THE STATEMENT U/S 132(4) OF THE ASSESSEE, WHICH SUGGESTS, EVEN REMOTELY, THA T THE ASSESSEE WAS BOOKING BOGUS EXPENSES IN ITS BOOKS OF ACCOUNT FOR THE SUCCEEDING YEARS, SO AS TO EXTRAPOLATE THE SAME TO THE YEARS UNDER CONSIDERATION. THE TRUMP C ARD OF THE DEPARTMENTS CASE IS THE RATIO OF DAYAWANTI (SUPRA), WHICH COULD HAVE BE EN APPLIED ONLY IF THE REVENUE HAD ESTABLISHED THE RECORDING OF SOME BOGUS EXPENSE S BY THE ASSESSEE IN LATER YEARS, SO AS TO ENABLE IT TO DRAW AN ADVERSE INFERENCE FOR THE CURRENT YEARS. THIS IS ABSENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THUS, IT IS VIVID THAT THE RATIO DECIDENDI IN THE CASE OF DAYAWANTI (SUPRA) DOES NOT APPLY TO THE FACTS OF THE CASE. IN THE ABSENCE OF ANY MATERIAL, THE GENUINENESS OF EXPENSES INCURR ED BY THE ASSESSEE, AND THAT TOO PARTLY TO THE EXTENT OF LOSSES CLAIMED, COULD NOT H AVE BEEN DISTURBED BY THE ASSESSING OFFICER IN THE ASSESSMENT U/S 153A OF THE ACT. BE T HAT AS IT MAY, IT IS FURTHER RELEVANT TO NOTE THAT THE OPERATION OF THE JUDGMENT IN THE C ASE OF DAYAWANTI (SUPRA) HAS BEEN STAYED BY THE HON'BLE SUPREME COURT VIDE ITS JUDGME NT DATED 03.10.2018, A COPY OF WHICH HAS BEEN PLACED ON RECORD. ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 17 OF 19 18. THUS, IT IS APPARENT THAT BETWEEN THE TWO JU DGMENTS OF KABUL CHAWLA (SUPRA) AND DAYAWANTI (SUPRA), THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE ARE FULLY COVERED BY THE RATIO IN THE CASE OF KABUL CHAWLA (S UPRA), WHICH VIEW HAS BEEN REITERATED BY THE HON'BLE DELHI HIGH COURT IN A MOR E RECENT DECISION IN PRINCIPAL CIT VS. MEETA GUTGUTIA (2017) 395 ITR 526 (DEL). IN VIEW OF THE FOREGOING DISCUSSION, I AGREE WITH THE VIEW CANVASSED BY THE LD. JM IN HOLDING THAT THE AMOUNT OF DETERMINED LOSS FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 BE ALLOWED TO BE CARRIED FORWARD FOR SET OFF AGAINST THE INCOME FOR THE ASSESSMENT YEAR 2006-07. THE QUESTION PROPOSED IS, THEREFORE, ANSWERED IN NEGATI VE BY HOLDING THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITIONS MADE B Y THE AO FOR THE YEARS OF COMPLETED ASSESSMENTS, WHICH WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATING TO SUCH YEARS AND CONSEQUENTLY DENYING THE BENEFIT OF CARRY FORWARD AND SET OFF OF THE RESULTA NT LOSS IN SUBSEQUENT YEAR. (9) IN THE APPEALS BEFORE US, LD. CIT (DR) FAILED TO EST ABLISH THAT THE ADDITIONS MADE IN THE CASE OF ASSESSEES WERE BASED ON ANY INC RIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH U/S 132 OF I.T. ACT. ON PERUSA L OF THE ASSESSMENT ORDERS AND ON FURTHER PERUSAL OF IMPUGNED APPELLATE ORDERS OF LD. CIT(A), IT IS FOUND THAT NOWHERE IT IS THE CASE OF REVENUE THAT THE AFORESAI D ADDITIONS MADE IN THE ASSESSMENT ORDER WERE BASED ON ANY INCRIMINATING MA TERIAL FOUND IN THE COURSE OF SEARCH U/S 132 OF I.T. ACT. IT IS ALSO NOT IN DISPUT E THAT NO ASSESSMENTS WERE PENDING IN THE CASE OF ANY OF THE THREE ASSESSEES O N THE DATE OF SEARCH U/S 132 OF I.T.ACT. (10) IN VIEW OF THE FOREGOING, RESPECTFULLY FOLLOWIN G THE DECISION OF ITAT DELHI BENCHES, DELHI IN THE AFORESAID CASE OF HBN DAIRIES & ALLIED LTD. VS. ACIT IN ITA NOS. 1393, 1394 & 1395/DEL/2013 FOR ASSESSMENT YEAR S 2004-05, 2005-06 & 2006- 07 RESPECTIVELY, IN WHICH, BY MAJORITY OF THE MEMBE RS OF ITAT, THE ISSUE WAS DECIDED IN FAVOUR OF ASSESSEE; AND IN VIEW OF THE PRECEDENT S CITED BY LD. AR, SUCH AS CIT VS. KABUL CHAWLA (SUPRA), PR. CIT & ORS. VS. MEETA GUTGUTIA (SUPRA), EXCEL INFOTECH LTD. VS. DCIT (SUPRA) AND SANJAY AGGARWAL VS. DCIT (SUPRA) ; AND ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 18 OF 19 FURTHER, IN VIEW OF AFORESAID DECISIONS OF CO-ORDIN ATE BENCHES OF ITAT, DELHI IN THE OTHER GROUP CASES OF SALUJA GROUP SUCH AS CASES OF MR. ANKUSH SALUJA , M/S SALUJA CONSTRUCTION CO. LTD. AND MR. VINOD SALUJA (REFERRED TO IN PARAGRAPHS 4 AND 5 OF THIS ORDER); WE ALSO DECIDE THE ISSUE IN F AVOUR OF THE THREE ASSESSEES; AS NO CASE HAS BEEN MADE BY THE LD. CIT(DR) FOR US TO TAKE ANY DIFFERENT STAND, OR TO INTERFERE WITH THE IMPUGNED ORDERS OF THE LD. CIT(A ) IN THE CASE OF ANY OF THE THREE ASSESSEES. (11) IN THE RESULT, THE THREE APPEALS FILED BY REVENUE AR E DISMISSED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/12/2018 SD/- SD/- (KULDIP SINGH) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21/12/2018 (BIDHAN) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NOS.-2046, 2045 & 2050/DEL/2016. SALUJA CONSTRUCTION CO. LTD. PAGE 19 OF 19 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER