Shakuntala Hiralal Malu, V. Deputy Commissioner of Income-tax,

ITA 2229/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9546 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Capital asset
• Section: 143(3); 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI RAJESH KUMAR, AM . / ITA NO S. 2226 & 2227 /P U N/201 4 / ASSESSMENT YEAR S : 20 02 - 03 & 2003 - 04 MANISH HIRALAL MALU, 60, NANAPETH, PUNE 411002 PAN : AAWPM9092Q . / APPELLANT VS. D EPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), PUNE . / RESPONDENT . / ITA NO . 2228 /P U N/201 4 / ASSESSMENT YEAR : 2003 - 04 KAVITA MANOJ MALU, 60, NANAPETH, PUNE 411002 PAN : AAWPM9092J . / APPELLANT VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), PUNE . / RESPONDENT ITA NO S. 2226 TO 2229/PUN/2014 2 . / ITA NO . 2229 /P U N/201 4 / ASSESSMENT YEAR : 2003 - 04 SHAKUNTALA HIRALAL MALU, 60, NANAPETH, PUNE 411002 PAN : AEGON1222G . / APPELLANT VS . DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), PUNE . / RESPONDENT / APPELLANT BY : S HRI KISHORE PHADKE / RESPONDENT BY : MS. ANN KAPTHUAMA / DATE OF HEARING : 01.05. 201 7 / DATE OF PRONOUNCEMENT: 04 . 0 5 .201 7 / ORDER PER RAJESH KUMAR, A M : TH ESE FOUR APPEALS BY THE THREE DIFFERENT ASSESSEES ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - CENTRAL, PUNE D ATED 16 - 09 - 2014 PASSED UNDER DIFFERENT SECTIONS 143(3) R.W.S. 153A, 143(3) R.W.S. 153A(B) AND 143(3) R.W.S. 153C OF THE OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEARS 2002 - 03 AND 2003 - 04. 2. SINCE, THE ISSUE S INVOLVED IN ALL THE APPEALS ARE COMMON THOUGH PERTAIN TO DIFFERENT ASSESSEES, FOR THE SAKE OF CONVENIENCE AND BREVITY, THESE APPEALS ARE BEING CLUBBED TOGETHER AND ARE BEING DISPOSED OF BY THE THIS CONSOLIDATED ORDER. ITA NO S. 2226 TO 2229/PUN/2014 3 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 2226 /PUN/2014 ARE AS UNDER : ON FACTS AND IN LAW : 1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THAT THE ORDER PASSED BY THE A.O. IS WITHOUT JURISDICTION AND BAD IN LAW AS THE JURISDICTION U/S. 153A IS VITI ATED. 1.1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN NOT APPRECIATING THE SCOPE OF ADDITION IN THE ASSESSMENT & OUGHT TO HAVE RESTRICTED TO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. 2] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 71,520 / - ON ACCOUNT OF UNEXPLAINED HOUSEHOLD EXPENSES. 3] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3.1 THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 2227/PUN/2014 ARE AS UNDER : ON FACTS AND IN LAW : 1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THAT THE ORDER PASSED BY THE A.O. IS WITHOUT JURISDICTION AND BAD IN LAW AS THE JURISDICTION U/S. 153A IS VITIATED. 1.1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT( A) ERRED IN NOT APPRECIATING THE SCOPE OF ADDITION IN THE ASSESSMENT & OUGHT TO HAVE RESTRICTED TO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. 2] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN CONFIRMING THE LONG TERM CAPITAL GAIN AT RS. RS . 10,87,418/ - AS AGAINST THE AMOUNT OF RS.8,21,439/ - . 2.1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT ALLOWING THE CLAIM T OWARDS COMPOUN D INTEREST OF RS. 2,65,979/ - ON MONEY BORROWED TOWARDS ACQUIRING THE CAPITAL ASSETS FOR COMPUTING CAPITAL GAIN. 2.2] THE ID CIT(A) ALTHOUGH HOLDING THAT COMPOUND INTEREST IS ALLOWABLE ERRED IN HOLDING THAT THE CLAIM FOR INTEREST LIABILITY WAS ENTIRELY TOWA RDS OTHER GROUP ENTITIES AND THE GENUINENESS OF SUCH INTEREST INCURRED TOWARDS ACQUISITION OF ASSET WAS NOT PROVED. 3] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 84,655/ - ON ACCOUNT OF UNEXPLAINED HOUSEHOLD EXPENSES. ITA NO S. 2226 TO 2229/PUN/2014 4 4] THE APPELLANT CRAV ES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3.2 THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 2228/PUN/2014 ARE AS UNDER : ON FACTS AND IN LAW : 1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERR ED IN NOT APPRECIATING THAT THE ORDER PASSED BY THE A.O. IS WITHOUT JURISDICTION AND BAD IN LAW AS THE JURISDICTION U/S. 153A IS VITIATED. 1.1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THE SCOPE OF ADD ITION IN THE ASSESSMENT & OUGHT TO HAVE RESTRICTED TO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. 2] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN CONFIRMING THE LONG TERM CAPITAL GAIN AT RS. RS. 10,87,418/ - AS AGAINST T HE AMOUNT OF RS. 8,00,700 / - . 2. 1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT ALLOWING THE CLAIM TOWARDS COMPOUND INTEREST OF RS. 2,86,718 / - ON MONEY BORROWED TOWARDS ACQUIRING THE CAPITAL ASSETS FOR COMPUTING CAPITAL GA IN . 2.2] THE ID CIT(A) ALTHOUGH HOLDING THAT COMPOUND INTEREST IS ALLOWABLE ERRED IN HOLDING THAT THE CLAIM FOR INTEREST LIABILITY WAS ENTIRELY TOWARDS OTHERGROUP ENTITIES AND THE GENUINENESS OF SUCH INTEREST INCURRED TOWARDS ACQUISITION OF ASSET WAS NOT PROVED. 3] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3.3 THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 2229/PUN/2014 ARE AS UNDER : ON FACTS AND IN LAW : 1] ON THE FACT AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THAT THE ORDER PASSED BY THE A.O. IS WITHOUT JURISDICTION AND BAD IN LAW AS THE JURISDICTION U / S. 153A IS VITIATED. 1.1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THE SCOPE OF ADDITION IN THE ASSESSMENT & OUGHT TO HAVE RESTRICTED TO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. 2] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN CONFIRMING THE LO NG TERM CAPITAL GAIN AT RS . RS. 11,83,681/ - AS AGAINST THE AMOUNT OF RS. 10,38,477/ - . ITA NO S. 2226 TO 2229/PUN/2014 5 2.1 ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT ALLOWING THE CLAIM T OWARDS COMPOUND INTEREST OF RS. 1,45,204/ - ON MONEY BORROWED TOWARDS ACQUIRING THE CAPITAL AS SETS FOR COMPUTING CAPITAL GA IN. 2.2] THE ID CIT(A) ALTHOUGH HOLDING THAT COMPOUND INTEREST IS ALLOWABLE ERRED IN HOLDING THAT THE CLAIM FOR INTEREST LIABILITY WAS ENTIRELY TOWARDS OTHER GROUP ENTITIES AND THE GENUINENESS OF SUCH INTEREST INCURRED TOWARDS ACQUISITION OF ASSET WAS NOT PROVED. 3] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 4 . ONE COMMON ISSUE RAISED IN ALL THE APPEALS BY THE ASSESSEES IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE ORDER OF ASSESSING OFFICER BY NOT APPRECIATING THE FACT THAT THE ORDER PASSED BY THE U/S. 143(3) R.W.S. 153A OF THE ACT WAS WITHOUT JURISDICTION. FIRST WE SHALL TAKE UP ITA NO. 2226/PUN/2014 & 2227/PUN/2014. 5. BRIEF FACT S OF T HE CASE ARE THAT , A SEARCH WAS CONDUCTED U/S. 132 OF THE ACT IN AGARWAL/MALU GROUP OF CASES ON 20 - 07 - 2005 AND THE ASSESSEE WAS ONE OF THE MEMBERS OF MALU GROUP. AFTER CONCLUSION OF THE SEARCH , A NOTICE U/S. 153A WAS ISSUED TO THE ASSESSEE ON 21 - 12 - 2006 WH ICH WAS COMPL IED WITH THE ASSESSEES BY FIL ING RETURN OF INCOME ON 05 - 02 - 2007 DECLARING A TOTAL INCOME OF RS.3,91,427/ - . THEREAFTER, A NOTICE U/S. 143(2) AND 142(1) W ERE ISSUED IN THE CASE OF SHRI MANISH HIRALAL MALU IN ASSESSMENT YEAR 2002 - 03 AN D AN ADDIT ION OF RS.71,520/ - WAS MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE WITHDRAWAL MADE BY THE ASSESSEE FOR HOUSEHOLD EXPENSES WERE INADEQUATE VIS - - VIS WAS STATUS/STANDARD OF LIVING OF MALU FAMILY AND ACCORDING LY, SUM OF RS.71,520/ - WAS ADDED TO THE I NCOME OF THE ASSESSEE BY FRAMING ASSESSMENT U/S. 143( 3 ) R.W.S. 153A VIDE ORDER DATED 28 - 12 - 2007 BY ASSESSING THE TOTAL INCOME OF THE ASSESSEE RS.4,62,947/ - . WHEREAS, IN ASSESSMENT YEAR 2003 - 04 THE OTHER FACTS BEING SAME , AN ADDITION WAS MADE ON ACCOUNT O F LONG TERM CAPITAL GAIN ARISING ON THE PROPERTY AT SURVEY NO.678, BIBVEWADI, PUNE WAS MADE BY REJECTING THE CLAIM OF COMPOUNDING INTEREST OF 2,65,979/ - BESIDES ITA NO S. 2226 TO 2229/PUN/2014 6 MAKING ADDITION QUA INADEQUATE HOUSEHOLD EXPENSES OF RS.84,655/ - BY FRAMING ASSESSMENT U/S. 143 (3) R.W.S. 153A VIDE ORDER DATED 28 - 12 - 2007 ASSESSING THE TOTAL INCOME OF RS.15,14,244 . 6. THE LD CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE SUBMISSIONS AND CONTENTION RAISED BY THE ASSESSEE BY HOLDING THAT THE VARIOUS HIGH COURT H AVE CONFLICTING DECISIONS ON THE JURISDICTIONAL ISSUE. THE LD CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THIS ISSUE BY FOLLOWING THE DECISION OF THE HONBLE KARNATKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT CO. VS. DCIT IN ITA NO. 38 OF 201 4. THE LD CIT(A ) DISTINGUISHED THE DECISION OF CIT VS MURLI AGRO PRODUCTS LTD . IN ITA NO. 36 OF 2009 (NAG P UR BENCH) OF HONBLE BOMBAY HIGH COURT BY OBSERVING THAT THE ASSESSMENT S IN THE PRESENT CASES WERE NOT FRAMED U/S 143(3) OF THE ACT AND THEREFORE NO T ATTAINED FINALITY AND AO S POWER TO MAKE ADDITIONS WERE UNFETTERED. 7 . THE LD AR VEHEMENTLY SUBMITTED BEFORE THE BENCH THE ASSESSING OFFICER HAS NO JURISDICTION TO DISTURB THE ASSESSMENT WHICH HAS ATTAINED FINALITY ON THE DATE OF SEARCH. THE LD AR SU BMITTED THAT THE ASSESSMENTS IN THESE CASES HAVE ATTAINED FINALITY ON THE DATE OF SEARCH AS NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE. THE LD. AR W HILE REFERRING TO THE SECOND PROVISO TO SECTION 153A OF THE ACT ARGUED THAT THE ASSESSMENTS WHICH HAVE ATTAINED FINALITY ON THE DATE OF SEARCH CAN ONLY BE DISTURBED FOR MAKING ADDITION BASED UPON AND WITH REFERENCE TO THE INCRIMINATING MATERIAL FOUND DU RING THE COURSE OF SEARCH AND NOT OTHERWISE . T HEREFORE, THE ASSESSMENT S FRAMED BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE FIRST APPELLATE AUTHORITY W ERE WITHOUT JURISDICTION AND HENCE THE ADDITION S MADE IN THE SAID ASSESSMENTS SHOULD BE DELETED. T HE LD. AR SUBMITTED THAT IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT , IT HAS BEEN SPECIFICALLY PROVIDED THAT THE ASSESSMENTS OR RE - ASSESSMENTS RELATING TO THE PERIOD OF SIX ASSESSMENT YEARS PRIOR TO THE ITA NO S. 2226 TO 2229/PUN/2014 7 PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED AS REFERRED TO IN SECTION 153A(B) OF THE ACT AS PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S. 132 OR MAKING REQUISITION U/S. 132A OF THE ACT , SHALL A BATE . THE LD. AR FURTHER SUBMITTED THAT IF ON THE DATE OF SEARCH , THE ASSESSMENTS FOR ANY OF THE SI X ASSESSMENT YEARS FALLING PRIOR TO THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH IS CONDUCTED WERE COMPLETE AND FINAL THE SAME COULD NOT BE DISTURBED BY THE ASSESSING OFFICER UNLESS HE HAS THE INCRIMINAT ING MATERIAL TO MAKE THE ADD ITION WHICH WERE FOUND DURING THE SEARCH . THE LD. AR IN DEFENSE OF HIS ARGUMENTS RELIED ON THE SERIES OF DECISIONS NAMELY : I . ALL CARGO GLOBAL LOGISTICS LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX, [2012] 23 TAXMANN.COM 103 (MUM.)(SB); II . COMMISSIONER OF INCOME TAX VS. CONTINENTAL WAREHOUSING CORPORATION, 374 ITR 645 (BOM.); III . COMMISSIONER OF INCOME TAX VS. KABUL CHAWLA, [2015] 61 TAXMANN.COM 412 (DELHI); IV . ANIL MAHAVIR GUPTA VS. ACIT IN ITA NO S. 638 & 664/MUM/2011 DECIDED ON 31 - 08 - 2016 . 8 . THE LD. AR FINALLY BROUG HT BEFORE THE BENCH THAT SINCE, THE ISSUE HAS BEEN SQUARELY COVERED BY DECISIONS OF THE JURISDICTIONAL HIGH COURT AND ALSO BY THE CO - ORDINATE BENCH OF THE TRIBUNAL AS STATED ABOVE, THEREFORE THE ADDITION CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS ) SHOULD BE DELETED AS BEING WITHOUT JURISDICTION TO MAKE SUCH ADDITIONS IN THE ASSESSEMENT FRAMED U/S. 143(3) R.W.S. 153A OF THE ACT. 9 . PER CONTRA THE LD. DR STRONGLY OPPOSING THE LD. AR , SUBMITTED THAT THE ABOVE ADDITIONS BY THE ASSESSING OFFICER HAS BEEN MADE ON THE BASIS OF INFORMATION WHICH HAS COME TO THE NOTICE OF THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND CONSTITUTED THE BASIS FOR MAKING ADDITION AND THEREFORE, THE SAME WAS RIGHTLY UPHELD BY THE FIRST APPELLATE ITA NO S. 2226 TO 2229/PUN/2014 8 AUTHORIT Y. THE LD. DR HEAVILY RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMITTED THAT IN THE CASE OF SEARCH THERE WAS NO EMBARGO ON ASSESSING OFFICER TO MAKE THE ADDITION ON THE MATTERS AND ISSUES WHICH COME TO THE NOTICE OF AO DURING THE C OURSE OF PROCEEDINGS U/S 153A OF THE ACT . THE LD. DR RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. CHETAN DAS LACHMAN DAS REPORTED AS 254 CTR 392 AND HONBLE KERALA HIGH COURT IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE VS. DEPUTY COMMISSIONER OF INCOME TAX REPORTED AS 362 ITR 664. 10 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAWS RELIED UPON BY THE ASSESSEE. THE UNDISPUTED FACTS OF THE CASE ARE THAT A SEARCH WAS CONDUCTED ON THE MALU GROUP ON 20 - 07 - 2005 AND THEREAFTER THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 153A FOR ALL THESE FOUR ASSESSMENT YEARS. THE ISSU E BEFORE US IS WHETHER THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER AND UPHELD BY THE COMMISSIONER OF INCOME TAX (APPEALS) WERE WITHOUT JURISDICTION TO MAKE THE ADDITIONS WHICH WERE NOT BASED UPON ANY SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH. A S APPARENT FROM THE FACTS ON RECORD AND APPARENT FROM THE PERUSAL OF ORDER OF AUTHORITIES BELOW , IT IS QUITE CLEAR THAT DURING THE COURSE OF SEARCH NO MATERIAL QUA THE IN ADEQUATE WITHDRAWAL FOR HOUSEHOLD EXPENSES OF THE VARIOUS ASSESSEES AND ALSO IN RESPEC T OF CLAIM OF COMPOUNDING INTEREST FROM THE LONG TERM CAPITAL GAIN ON THE SALE OF PROPERTY WERE FOUND AND SEIZED . BUT, THE ASSESSEE HAS FULLY DISCLOSED HIS WITHDRAWAL FOR HOUSE HOLD EXPENSES AS WELL AS LONG TERM CAPITAL GAIN IN THE INCOME TAX RETURN FILED . A PERUSAL OF SECOND PROVISO TO SECTION 153A(B) PROVIDES THAT THE ASSESSMENT OR RE - ASSESSMENTS IN RESPECT OF SIX ASSESSMENT YEARS PRIOR TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED ARE PENDING , THEN THE SAME SHALL A BAT E. IN OTHER WORDS, THE AS SESSING OFFICER HAS SAME JURISDICTION TO FRAME THE ASSESSMENT U/S. 143( 3 ) ITA NO S. 2226 TO 2229/PUN/2014 9 R.W.S. 153A OF THE ACT TO MAKE ADDITIONS AS HE HAS UNDER THE PROVISIONS OF SECTION 143( 3 ) OF THE ACT QUA THOSE SIX ASSESSMENT YEAR S WHICH HAVE A BATED , DUE TO BEING PENDING , ON THE DA TE OF SEARCH U/S. 132 OR 132A OF THE ACT . BUT THE JURISDICTION OF THE ASSESSING OFFICER IS VERY LIMITED , WH ERE THE ASSESSMENTS FOR ALL OR ANY OF THE SIX PRECEDING ASSESSMENT YEARS HAVE ATTAINED FINALITY ON THE DATE OF SEARCH AND HAVE NOT BEEN A BATED . THE UNDISPUTED FACTS ARE THAT ASSESSMENT S HA VE ATTAINED FINALITY ON THE DATE OF SEARCH AS THE TIME FOR ISSUING NOTICE U/S. 143(2) OF THE ACT WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSEE FILED HIS RETURN OF INCOME HAS LA P SED AND THUS THE AS SESSMENT ATTAINS FINALITY UPON EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED . THE CASE OF THE ASSESSEE IS ALSO S UPPORTED BY THE RATIO LAID DOWN BY THE JURISDICTIONAL HIGH COURT AS WELL AS THE DECISION OF HONBLE DELHI HIGH CO URT AND THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL AS REFERRED AND RELIED UPON BY THE LD. AR OF THE ASSESSEE. 1 1 . IN THE CASE OF COMMISSIONER OF INCOME TAX VS. CONTINENTAL WAREHOUSING CORPORATION (SUPRA) IT HAS BEEN HELD THAT NO ADDITION CAN BE M ADE IN RESPECT OF AN UNABATED ASSESSMENT WHICH HAS BECOME FINAL IF NO INCRIMINATING MATERIAL IS FOUND DURING THE SEARCH. 1 2 . IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (SUPRA) IT HAS BEEN HELD THAT WHETHER IN A C ASE WHERE PURSUANT TO ISSUE OF NOTICE UNDER SECTION 153A ASSESSMENTS ARE ABATED, ASSESSING OFFICER RETAINS ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM UNDER SECTION 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF SIX ASSESSMENT YEAR S SEPARATELY . WHETHER IN OTHER CASES IN ADDITION TO INCOME THAT HAS ALREADY BEEN ASSESSED, ASSESSMENT UNDER SECTION 153A WILL BE MADE ON BASIS OF INCRIMINATING MATERIAL VIZ. BOOKS OF ACCOUNT, OTHER DOCUMENT, FOUND IN COURSE OF SEARCH BUT NOT PRODUCED IN CO URSE OF ORIGINAL ASSESSMENT, AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN COURSE OF SEARCH . ITA NO S. 2226 TO 2229/PUN/2014 10 1 3 . IN THE CASE OF ANIL MAHAVIR GUPTA VS. ACIT ( SUPRA) IT HAS BEEN HELD THAT E VEN IN A CASE WHERE ONLY A S. 143(1) ASSESSMENT IS MADE, ADDITIONS CANNOT BE MAD E WITHOUT THE BACKING OF INCRIMINATING MATERIAL IF THE S. 143(1) ASSESSMENT HAS NOT ABATED. 1 4 . IN THE CASE OF COMMISSIONER OF INCOME TAX VS. KABUL CHAWLA (SUPRA) IT HAS BEEN HELD THAT SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING SEARCH, NO ADDIT IONS COULD HAVE BEEN MADE TO INCOME ALREADY ASSESSED AND CONSEQUENTLY, IMPUGNED ADDITION WAS TO BE DELETED . IN THIS CASE THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. CHETAN DAS LACHMAN DAS REPORTED AS 254 CTR 392 IS REFERRED AND DISTINGUISHED WHICH WAS RELIED UPON BY THE LD . DR. 1 5 . THOUGH THE DECISIONS AS REFERRED BY THE RIVAL PARTIES ARE CONFLICTING BUT WE ARE FOLLOWING THE DECISIONS OF JURISDICTIONAL HIGH COURT AND THE CO - O RD INATE B ENCH OF MUMBAI . IN OUR OPIN ION , THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE RATIO LAID DOWN IN THE SAID DECISIONS AND ACCORDINGLY WE ARE INCLINED TO SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITIONS BOTH IN RESPECT OF HOUSEHOLD EXPENSES AS WELL AS LONG TERM CAPITAL GAIN AND COMPOUND INTEREST ON THE LOANS AS THE ASSESSING OFFICER HAS NO JURISDICTION OR LEGAL AUTHORITY TO ADD SUCH AMOUNT IN THE ASSESSMENTS SO FRAMED UNDER THE PROVISIONS OF SECTIO N 143(2) R. W.S. 153A OF THE ACT, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. 16. THE ISSUE OF COMPUTATION OF LONG TERM CAPITAL GAIN BY ALLOWING BENEFIT OF COMPOUNDING OF INTEREST IS TO BE ALLOWED IN FAVOUR OF ASSESSEE. HOWEVER, WE HAVE ALREADY DECIDED THE APPEA LS IN FAVOUR OF THE ASSESSEE ON JURISDICTIONAL ISSUE THEREFORE WE ARE NOT GOING INTO THE MERIT OF THE CASE ON WHICH THE ASSESSEE HAS A GOOD CASE IN ITS FAVOUR AND SHOULD SUCCEED. ITA NO S. 2226 TO 2229/PUN/2014 11 17. IN THE CASE OF KAVITA MANOJ MALU IN ITA NO. 2228/PUN/2014 AND SHAKUNTALA HIRALAL MALU IN ITA NO. 2229/PUN/2014 ONLY ADDITION IN RESPECT OF LONG TERM CAPITAL GAIN RESULTING FROM THE REJECTION OF CLAIM OF COMPOUNDING INTEREST WAS MADE AND ASSESSMENT WAS FRAMED ACCORDINGLY U/S. 143(3) R.W.S. 153A OF TH E ACT. THE FACTS IN BOTH THESE APPEALS ARE IDENTICAL TO FACTS IN ITA NO.2227/PUN/2014. WE HAVE ALREADY DECIDED THE APPEAL NO 2227/PUN/2014 IN FAVOUR OF THE ASSESSEE AND THEREFORE OUR DECISION I N THE SAID APPEAL WOULD, MUTATIS MUTANDI, APPLY TO THESE APPEAL AS WELL. ACCORDIN G LY THE APPEAL OF THE ASSESSEE ARE ALLOWED. 18. IN THE RESULT, THE ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MAY, 2017. SD/ - SD/ - ( SUSHMA CHOWLA ) ( RAJESH KUMAR ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE ; DATED : 4 TH MAY, 201 7 . RK / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APP ELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - CENTRAL, PUNE ; 4. / THE CIT - CENTRAL, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PUNE