Jay Infrastruct & Properties Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(1), Ahmedabad

ITA 2169/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9531 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 01-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Keywords: Principle of natural justice; Initiation of penalty proceedings; Deemed dividend
• Section: 143(3); 153A; 263; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 2169/AHD/2011 ASSESSMENT YEAR :2007-08 JAY INFRASTRUCTURE & PROPERTIES PVT. LTD., AMBUJA TOWER, OPP. MEMNAGAR FIRE STATION, NAVRANGPURA, AHMEDABAD V S . ACIT, CENTRAL CIRCLE 1(1), AHMEDABAD PAN NO. AABCJ6891L (APPELLANT) .. (RESPONDENT) ' /BY ASSESSEE SHRI TUSHAR P. HEMANI, A.R. $ ' / BY REVENUE SHRI DEEPAK SUTARIA, SR. D.R. % ' /DATE OF HEARING 13.01.2016 ' /DATE OF PRONOUNCEMENT 12.02.2016 O R D E R PER : SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-I, AHMEDABAD, DATED 03.06.2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS AN INVESTMENT COMPANY. A SEARCH U/S.132 OF THE ACT WAS CONDUCTED IN THE CASE OF GUJARAT AMBUJA GROUP ON 01 .09.2008 AND SUBSEQUENT DATES AND WARRANT OF AUTHORIZATION U/S.132 OF THE A CT WAS ALSO ISSUED IN THE CASE OF COMPANY. SUBSEQUENTLY, NOTICE U/S.153A WAS ISSU ED ON 25.05.2009 AND IN ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 2 RESPONSE TO WHICH ASSESSEE FILED ITS RETURN OF INC OME FOR A.Y. 2007-08 ON 29.06.2009, DECLARING TOTAL INCOME AT RS. NIL. TH E CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.1 43(3) R.W.S. 153A OF THE ACT VIDE ORDER DATED 21.12.2010 AND THE TOTAL INCOME WA S DETERMINED AT RS.1,99,02,409/-. AGGRIEVED BY THE ORDER OF ASSESS ING OFFICER, ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE O RDER DATED 03.06.2011 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS: 1. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE ACTION OF AO IN FRAMING ASSESSMENT BY INVOKING THE PROVISIONS OF SECTION 15 3A OF THE ACT THAT IS BAD IN LAW. LD. CIT (A) OUGHT TO HAVE QUASHED THE IMPUGNED ASSESSMENT ORDER SINCE NO INCOME COULD HAVE BEEN TAXED U/S 153A OF THE ACT . 2. LD. CIT (A) HAS ERRED IN LAW IN AND ON FACTS I N NOT APPRECIATING THAT EVEN THE ASSESSMENT U/S 153A OF THE ACT IS RESTRICTED TO THE MATERIALS AND EVIDENCES FOUND DURING THE COURSE OF THE SEARCH AND THE SAME CANNOT GO BEYOND THE SAME. IN THE FACTS OF THE PRESENT CASE, ALL THE ADD ITIONS WHICH ARE MADE ARE VERY MUCH PART OF THE DISCLOSED INCOME OF THE APPEL LANT. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN NOT APPRECIATING THAT PROVISIONS OF S. 2(22)(E) OF THE ACT ARE NOT AT ALL APPLICABLE TO THE APPELLANT COMPANY. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN CONFIRMING THE ACTION OF LD. AO IN HOLDING THAT PROVISIONS OF S. 2(22)(E) OF THE ACT IS APPLICABLE TO THE APPELLANT ON ALLEGED LOAN RECEIVED FROM M/S JUPITE R CORPORATE SERVICES LTD. AND ACCORDINGLY ERRED IN CONFIRMING THE ACTION OF L D. AO IN MAKING ADDITION OF RS.1,99,02,409/- U/S 2(22)(E) OF THE ACT. 5. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN NOT APPRECIATING THAT THE SHAREHOLDERS HAVE NOT DERIVED ANY BENEFIT FROM THE FUNDS SO RECEIVED BY THE APPELLANT COMPANY. 6. BOTH THE LOWER AUTHORITIES HAVE FAILED TO APPREC IATE THAT THE AMOUNT RECEIVED ARE IN THE NATURE OF BUSINESS ADVANCES AND NOT IN T HE NATURE OF LOAN OR ADVANCE AND THEREFORE THE VERY PROVISIONS OF S. 2(2 2)(E) OF THE ACT WOULD NOT APPLY. 7. IN ANY CASE PROVISIONS OF S. 2(22)(E) OF THE ACT WAS NOT AT ALL APPLICABLE TO THE IMPUGNED TRANSACTIONS OF ALLEGED LOAN AS THE SAID P AYMENT WAS NEITHER BY WAY OF A LOAN NOR ADVANCE AS CONTEMPLATED U/S 2(22)(E) OF THE ACT. 8. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN PASSING THE ORDERS WITHOUT PROPERLY APPRECIATING THE FACT AND THAT HE FURTHER ERRED IN GROSSLY ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 3 IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFO RMATION SUBMITTED BY THE APPELLANT FROM TIN E TO TIME WHICH OUGHT TO HAVE BE EN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF BOTH THE AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 9. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE LD. AO IN LEVYING INTEREST U/S 234B/C OF THE ACT. 10. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S OF THE CASE IN CONFIRMING THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THA T THE GROUNDS RAISED BY ASSESSEE ARE INTERCONNECTED. HE SUBMITTED THAT GRO UND NOS. 1 & 2 ARE WITH RESPECT TO FRAMING ASSESSMENT U/S.153A OF THE ACT A ND GROUND NOS. 3 TO 7 ARE ON THE MERITS OF ADDITION. 4.1 BEFORE US, LD. A.R. SUBMITTED THAT DURING COURS E OF SEARCH, NO INCRIMINATING DOCUMENTS WERE FOUND BUT ASSESSING OF FICER PROCEEDED TO MAKE ADDITION U/S.2(22)(E) OF THE ACT. HE SUBMITTED THA T IT IS A SETTLED LAW THAT THE COMPLETED ASSESSMENTS CAN BE INTERFERED BY THE ASSE SSING OFFICER WHILE FRAMING ASSESSMENT ORDERS U/S.153A ONLY ON THE BASIS OF SOM E INCRIMINATING MATERIALS UNEARTHED DURING SEARCH AND IN ABSENCE OF ANY INCRI MINATING MATERIAL NO ASSESSMENT CAN BE FRAMED U/S.153A AND FOR THE AFOR ESAID PROPOSITION, HE PLACED RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COUR T IN THE CASE OF CIT VS. KABUL CHAWLA (2015) 61 TAXMANN.COM 412 (DEL) AND TH E DECISION OF AHMEDABAD TRIBUNAL IN CASE OF INTAS PHARMACEUTICALS LTD. VS. DCIT IN IT(SS)A NOS. 807-809/AHD/2010. HE ALSO PLACED ON RECORD TH E COPY OF THE AFORESAID DECISIONS. HE, THEREFORE, SUBMITTED THAT THE ASSES SMENT FRAMED U/S.153A NEEDS TO BE QUASHED. 4.2 WITH RESPECT TO GROUND NO.3 TO 7 ON THE MERITS OF ADDITION WHICH ARE WITH RESPECT TO ADDITION U/S.2(22)(E), HE SUBMITTED THAT ASSESSEE HAD RECEIVED LOAN OF RS.1,99,02,409/- FROM JUPITER CORPORATE SERVICES LT D. AND ASSESSING OFFICER NOTED THAT SHRI VIJAYKUMAR D. GUPTA WAS A COMMON SH AREHOLDER IN ASSESSEE ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 4 COMPANY AS WELL AS JUPITER CORPORATE SERVICE LTD. A ND HE WAS THEREFORE OF THE VIEW THAT PROVISIONS OF SECTION 2(22)(E) WERE APPLI CABLE. HE ACCORDINGLY TREATED THE AMOUNT RECEIVED BY THE ASSESSEE AS DEEM ED DIVIDEND U/S. 2(22)(E) OF THE ACT. BEFORE US, LD. A.R. SUBMITTED THAT ASS ESSEE IS NOT REGISTERED SHARE HOLDER OF JUPITER CORPORATE SERVICE LTD. AND THEREF ORE, NO ADDITION CAN BE MADE U/S. 2(22)(E) OF THE ACT AND FOR THIS PROPOSITION , HE RELIED ON THE DECISION IN CASE OF ACIT VS. BHAUMIK COLORS P. LTD. 118 ITD 1 ( MUM)(SB), CIT VS. ANKITECH (P.) LTD. 340 ITR 14(DEL). HE, THEREFORE, SUBMITTED THAT EVEN ON MERITS, NO ADDITION U/S. 2(22)(E) OF THE ACT IS CA LLED FOR. 4.3 LD. D.R., ON THE OTHER HAND, SUPPORTED THE ORDE RS OF ASSESSING OFFICER AND CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS FRAMING OF ASSESSM ENT U/S.153A OF THE ACT. IT IS ASSESSEES SUBMISSION THAT DURING COURSE OF SEARCH PROCEEDINGS, NO INCRIMINATING MATERIAL WAS FOUND AND IN SUCH SITUAT ION, NO ASSESSMENT COULD BE FRAMED AND MOREOVER NO ADDITION U/S. 2(22)(E) OF TH E ACT CAN BE MADE. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD T O DEMONSTRATE THAT DURING COURSE OF SEARCH ANY UNDISCLOSED MATERIAL WITH RESP ECT TO DEEMED DIVIDEND, WHICH WAS THE BASIS OF ADDITION, WAS FOUND. WE FIN D THAT THE CO-ORDINATE BENCH OF TRIBUNAL IN CASE OF INTAS PHARMACEUTICALS LTD. VS. DCIT (SUPRA) AFTER RELYING ON THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL INDIA CARGO LOGISTICS (SUPRA) HAS HELD THAT IN THE ABSENCE OF ANY INCRIMINATING M ATERIAL FOUND IN SEARCH, NO ADDITION COULD BE MADE. THE RELEVANT PO RTION OF THE ORDER OF THE CO- ORDINATE BENCH IS AS UNDER: A PERUSAL OF ABOVE STATED STATUTORY PROVISION REVE ALS THAT PENDING ASSESSMENTS ON THE DATE OF SEARCH IN RESPECT OF PRECEDING SIX ASSE SSMENT YEARS ABATE AS PER THE 2 ND PROVISION. HOWEVER, THE SAME DOES NOT INCLUDE THOS E ASSESSMENTS WHICH HAVE ALREADY ATTAINED FINALITY OR WHEREIN , ASSESSMENT ORDERS HA VE ALREADY BEEN PASSED. WE REITERATE THAT ASSESSMENT ORDERS IN ALL THESE FOUR ASSESSMENT YEARS STOOD PASSED ON 27.12.2002, 02.01.2006, 29.12.2006 AND 29.03.2007 I .E. MUCH BEFORE THE DATE OF SEARCH FALLING ON 23.10.2007. THE ASSESSEES CASE HAS THROUGH OUT BEEN THAT THERE IS ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 5 NO INCRIMINATING MATERIAL; WHATSOEVER AS PRESCRIBED U/S.153A SO AS TO GIVE RISE TO THE PROCEEDINGS IN QUESTION. IN THESE FACTS, WE NOTICE THAT THE SPECIAL BENCH OF THE TRIBUNAL IN ALL INDIA CARGO LOGISTICS (SUPRA) ANSWE RED THE VERY REFERENCE AND HELD IN PARA 58 THAT ONLY PENDING ASSESSMENTS ABATE IN CASE OF A SEARCH BEING CONDUCTED AND AN ASSESSING OFFICER RETAINS THE ORIGINAL JURISDICT ION AS WELL AS THE ONE CONFERRED ON HIM U/S.153A FOR WHICH ASSESSMENTS SHALL BE MADE FO R EACH OF THE SIX ASSESSMENT YEARS SEPARATELY. THE SPECIAL BENCH THEREAFTER COM ES TO NON ABATED I.E. ASSESSMENTS WHICH ARE NOT PENDING AS PER ABOVE SAID 2 ND PROVISION AND HOLDS THAT THE ASSESSMENT THEREIN U/S.153A WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT F OUND IN THE COURSE OF SEARCH AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH. THIS IS NOT THE REVENUES CASE; OR FOR THAT NO SUCH MATERIAL IS PLA CED ON RECORD THAT THE SEARCH IN QUESTION UNEARTHED ANY SUCH UNDISCLOSED MATERIAL IN ASSESSEES CASE. WE ARE INFERRING IN THESE FACTS THAT THERE DOES NOT EXIST ANY SUCH MATERIAL NOT PRODUCED IN THE COURSE OF REGULAR ASSESSMENT BUT FOUND IN SEARCH. PARTIES INFORM US VERY FAIRLY THAT HONBLE JURISDICTIONAL HIGH COURT HAS NOT ADJUDICAT ED THIS QUESTION. IN THESE FACTS, WE OBSERVE THAT THE SPECIAL BENCHS DECISION SQUARELY COVERS THE ASSESSEES CASE. THE HONBLE BOMBAY HIGH COURT (SUPRA) AFFIRMS THE SAID DECISION BY HOLDING THAT THE SAME DOES NOT SUFFER FROM ANY INFIRMITY. THEIR LORDSHIP S ALSO SPECIFICALLY ADVERT WITH THE DECISIONS OF HONBLE DELHI AND KARNATAKA HIGH COURT (SUPRA) AND OBSERVE THAT THE SAME DO NOT DEAL WITH AN ISSUE WHEREIN SECTION 153A PROCEEDINGS ARE INITIATED WITHOUT ANY INCRIMINATING MATERIAL DISCOVERED IN SE ARCH OF THE CORRESPONDING REGULAR ASSESSMENTS STOOD FINALIZED. THEIR LORDSHIPS DISC USSION ABOUT THE HONBLE KARNATAKA HIGH COURT IS THAT THE SAME PERTAINS TO AN INSTANCE OF EXERCISE OF SECTION 263 JURISDICTION VIS--VIS 153A PROCEEDINGS. WE TAKE I NTO ACCOUNT ALL THESE CIRCUMSTANCES AND HOLD THAT INITIATION OF IMPUGNED SECTION 153A P ROCEEDINGS IN THIS SET OF FOUR ASSESSMENT YEARS IN ABSENCE OF ANY INCRIMINATING MA TERIAL FOUND IN SEARCH CONDUCTED AFTER FINALIZATION OF REGULAR ASSESSMENTS IS NOT SU STAINABLE. WE QUOTE DELHI TRIBUNALS DECISION (SUPRA) AND HOLD THAT ASSESSMENTS FRAMED U /S.143(1) AND 143(3) OF THE ACT HAVE TO BE TREATED AT PAR IN SUCH CASES. THIS LEAVES US WITH THE OTHER JUDGMENTS QUOTED AT THE REVENUES BEHEST. THE CASE LAW OF RAJ KUMAR ARORA (SUPRA) DEALS WITH SCOP E OF A SECTION 153A ASSESSMENT AND NOT THAT OF ASSUMPTION OF JURISDICTION WHICH ST ANDS ON A DIFFERENT FOOTING. THE SAME IS THE CASE IN OTHER DECISION OF FILATEX INDIA LTD. (SUPRA). THE CASE LAW OF BANGALORE AND CHENNAI BENCHES OF THE TRIBUNAL HOLDI NG THAT AN ASSESSING OFFICER GETS JURISDICTION FOR PASSING ORDERS U/S.153A AFTER SEARCH EVEN IN ABSENCE OF ANY INCRIMINATING MATERIAL IN CASE OF ASSESSMENTS ALREA DY FINALIZED; GO AGAINST THE SPECIAL BENCH DECISION HEREINABOVE. THE SAME ARE NO LONGER VALID PRECEDENTS. THE REVENUES ARGUMENTS RELYING ON THE ABOVE STATED DEC ISION ARE ACCORDINGLY REJECTED. WE ACCEPT THE ASSESSEES ARGUMENTS CHALLENGING VALI DITY OF INITIATION OF SECTION 153A PROCEEDINGS IN ALL THESE FOUR ASSESSMENT YEARS. TH E IMPUGNED ASSESSMENTS ARE ACCORDINGLY QUASHED. WE FURTHER FIND THAT THE HONBLE DELHI HIGH COURT I N CASE OF CIT VS. KABUL CHAWLA (SUPRA) HAS HELD THAT COMPLETED ASSESSMENTS CAN BE INTERFERED BY THE ASSESSING OFFICER U/S.153A ONLY ON THE BASIS OF SOM E INCRIMINATING MATERIAL UNEARTHED DURING COURSE OF SEARCH WHICH WAS NOT PRO DUCED OR WAS NOT ALREADY ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 6 DISCLOSED OR NOT MADE IN THE COURSE OF ORIGINAL ASS ESSMENT. HONBLE DELHI HIGH COURT AFTER CONSIDERING THE VARIOUS DECISIONS CITED IN THE ORDER HAS CONCLUDED 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 THE AFOREM ENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(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 W HICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE 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 POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORD ERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE AS SESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE D ISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIO NS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT M EAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT H AS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATE RIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REAS SESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABL E TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEAR CH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UND ER SECTION 153A MERGES 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 ON THE RECORD OF THE A O. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR ITA NO. 2169/AHD/2011 A.Y. 07-08 [JAY INFRASTRUCTUR E & PROPERTIES PVT. LTD. VS. ACIT] PAGE 7 REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR P ROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON R ECORD TO DEMONSTRATE THAT INCRIMINATING MATERIAL WITH RESPECT TO DEEMED DIVID END (WHICH HAS BEEN ADDED IN THE IMPUGNED ASSESSMENT) WAS FOUND DURING THE CO URSE OF SEARCH AT THE PREMISES OF THE ASSESSEE. IN SUCH A SITUATION, FOL LOWING THE AFORESAID DECISIONS OF THE CO-ORDINATE BENCH AND HONBLE DELHI HIGH COU RT CITED HEREINABOVE, WE ARE OF THE VIEW THAT NO ADDITION U/S. 2(22)(E) OF T HE ACT COULD HAVE BEEN MADE IN THE PRESENT CASE. WE, THEREFORE, DIRECT THE DELETI ON OF ADDITION. THUS, THE GROUND OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 12/02/2016 SD/- SD/- ( SHAILENDRA KUMAR YADAV ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBE R TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- *+ , -. / APPELLANT /+ 01-. / RESPONDENT 2+ 345 6 / CONCERNED CIT 4+ 6- , / CIT (A) 9+ :; < 045 , 45 = 3 / DR, ITAT, AHMEDABAD 6+ < ?@ A B / GUARD FILE. BY ORDER/ ,/= ,$ , 45 = 3