DCIT CEN CIR 1(1), MUMBAI V. ARUNKUMAR R MEHTA, MUMBAI

ITA 2477/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2064 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VARMA
• Assessee Lawyers: P P BHANDARI
• Keywords: Search and seizure; Salary income; Double taxation relief; Peak credit; Onus to prove; Revised return
• Section: 143(3); 153A; 115JB; 143(1); 143(2); 69A; 131; 69; 132; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENCH M UMBAI BEFORE SHRI G. MANJUNATHA, ACCOUNTANT MEMBER & SHRI RAM LAL NEGI, JUDICIAL MEM BER ITA NO.2477/MUM/2018 ( ASSESSMENT YEAR :2007-08 ) DCIT, CENTRAL CIRCLE-1(1) ROOM NO.903, 9 TH FLOOR OLD CGO(ANNEXE) M.K.ROAD MUMBAI-400 020 VS. ARUN KUMAR R. MEHTA 1608, PRASAD CHAMBER BEHIND TBZ, OPERA HOUSE MUMBAI-400 004 PAN/GIR NO.AABPM3327M APPELLANT ) .. RESPONDENT ) ASSESSEE BY NITESH JOSHI & P.P.BHANDARI REVENUE BY ANADI VARMA DATE OF HEARING 15 / 07 /201 9 DATE OF PRONOUNCEMENT 06/09/2019 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)47, MUMBAI , DATED 14/02/2018 AND IT PERTAINS TO THE ASSESSMENT YEAR 2 007-08. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 96,52,514/- AND RS. 79,25,181/- MADE ON ACCOUNT OF UNDISCLOSED CASH BALANCES IN HSBC ACCOUNT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITIONS OF R S. 96,52,514/- AND RS. 79,25,181/- MADE ON ACCOUNT OF UNDISCLOSED CASH BALANCE IN HSBC ACCOUNTS WITHOUT APPRECIATING THE FACT THAT SL P HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF THE HONBLE BOMBAY HIGH ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 2 COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPOR ATION AND MURLI AGRO PRODUCTS WHICH HAVE BEEN RELIED UPON BY THE LD .CIT(A). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESEE IS AN INDIVIDUAL, DERIVES INCOME FROM SALARY AND INCOME F ROM OTHER SOURCES, FILED HIS RETURN OF INCOME FOR AY 2007-08 ON 27/08/2007, DECLARING TOTAL INCOME OF RS. 18,37,040/-. A SEARCH AND SEIZURE ACTION WAS CARRIED OUT U/S 132 OF THE I.T.ACT, 1961 , AT THE RESIDENT AND BUSINESS PREMISES OF ENTITIES OF THE ROSY BLU E (INDIA) GROUP. THE ASSESEE, MR.ARUN KUMAR R. MEHTA WAS ALSO COVER ED IN THE SEARCH ACTION. CONSEQUENT TO SEARCH, THE CASE WAS S ELECTED FOR SCRUTINY AND THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) R.W.S. 153A OF THE I.T.ACT, 1961 AND DETERMINED TOTAL INCO ME AT RS. 1,94,14,740/- BY MAKING ADDITIONS TOWARDS UNDISCLOS ED CASH BALANCE IN HSBC BANK ACCOUNT, IN THE NAME OF RUBY E NTERPRISES INC. AND ALSO WHITE CEDAR INVESTMENTS LTD. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESEE P REFERRED AN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A), FOR DET AILED REASONS RECORDED IN HIS APPELLATE ORDER DATED 14/02/2018, D ELETED ADDITIONS MADE BY THE AO TOWARDS CASH BALANCE LYING IN HSBC ACCOUNT, GENEVA, IN THE NAME OF RUBY ENTERPRISES INC. AND W HITE CEDAR ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 3 INVESTMENTS LTD. U/S 69A OF THE I.T.ACT, 1961. AGGR IEVED BY THE LD. CIT(A) ORDER, REVENUE IS IN APPEAL BEFORE US. 4. THE LD. DR SUBMITTED THAT THE LD. CIT(A) WAS ERR ED IN DELETING ADDITIONS MADE BY THE AO TOWARDS UNDISCLOSED CASH B ALANCE IN HSBC BANK ACCOUNT IN THE NAME OF RUBY ENTERPRISES I NC. AND WHITE CEDAR INVESTMENTS LTD, WITHOUT APPRECIATING THE FAC T THAT THE SLP FILED BY THE DEPARTMENT HAS BEEN ADMITTED BY THE HO NBLE SUPREME COURT, AGAINST ORDER OF THE HONBLE BOMBAY HIGH COU RT, IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NAVSHEVA )L TD AND MURALI AGRO PRODUCTS LTD. IN THIS REGARD, HE RELIED UPON V ARIOUS JUDICIAL PRECEDENTS, INCLUDING THE DECISION OF HONBLE KERAL A HIGH COURT IN THE CASE OF DR. A.V.SREE KUMAR VS CIT (2018) 404 IT R 642. 5. THE LD. AR FOR THE ASSESEE, ON THE OTHER HAND SU BMITTED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASS ESEE BY THE DECISION OF ITAT, MUMBAI A BENCH, IN ASSESSEE OWN CASE FOR AY 2006-07 IN ITA. NO. 3712/MUM/2017, WHERE THE TRIBUN AL UNDER IDENTICAL SET OF FACTS AND ALSO BY FOLLOWING THE DE CISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF CIT VS MURALI AGR O PRODUCTS LTD (2014) 49 TAXMANN.COM 72, HELD THAT IN ABSENCE OF A NY INCRIMINATING MATERIAL FOUND, AS A RESULT OF SEARCH, NO ADDITIONS COULD BE MADE IN ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 4 THE ASSESSMENT FRAMED U/S 153A OF THE I.T.ACT, 1961 . THE LD. AR, FURTHER SUBMITTED THAT EVEN ON MERITS, THE TRIBUNA L HAD CONSIDERED NECESSARY FACTS AND HELD THAT ADDITIONS TOWARDS UNE XPLAINED CASH IN HSBC BANK ACCOUNT, GENEVA IN THE NAME OF RUBY ENTER PRISES INC. AND WHITE CEDAR INVESTMENTS LTD. CANNOT BE MADE IN THE HANDS OF THE ASSESSEE U/S 69A OF THE ACT, 1961. 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CAREFULLY CONSIDERED CASE LAWS RELIED UP ON BY BOTH THE PARTIES. WE FIND THAT AN IDENTICAL ISSUE HAD BEEN C ONSIDERED BY THE CO-ORDINATE BENCH OF ITAT, MUMBAI A BENCH IN ASSE SSEE OWN CASE FOR AY 2006-07 IN ITA NO. 3712/MUM/2017, WHERE THE CO-ORDINATE BENCH, AFTER CONSIDERING RELEVANT FACTS AND ALSO BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF CIT VS MURALI AGRO PRODUCT.LTD, DELETED ADDITIONS MADE BY THE AO . THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER: 16. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. THE FACTS BORN OUT FROM THE RECORD CLEARLY ESTABLISHED THAT ASSESS MENT FOR THE IMPUGNED ASSESSMENT YEAR IS UNABATED AS ON THE DATE OF SEARC H I.E. 25/08/2011, BECAUSE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR WAS COMPLETED U/S 143(1) OF THE ACT, AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT, HAD BEEN EXPIRED ON 30/09/2007. IT IS AN ADMITTED FACT THAT DURING THE COURSE OF SEARCH IN THE CASE OF THE ASSESSEE, NO ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 5 INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF UNDI SCLOSED BANK ACCOUNT MAINTAINED AT HSBC BANK, AT GENEVA IN THE NAME OF R UBY ENTERPRISES INC. AND WHITE CEDAR INVESTMENT LTD. ALTHOUGH, CERT AIN INCRIMINATING MATERIAL AND UNDISCLOSED ASSET WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF SILVER ARTICLES AND GOLD JEWELLERY RECEI VED FROM VARIOUS PEOPLE ON THE OCCASION OF ENGAGEMENT OF GRANDSON OF THE AS SESSEE AND THE ASSESSEE HAS ACCEPTED UNDISCLOSED INCOME IN RESPECT OF SILVER ARTICLES AND GOLD JEWELLERY FOR AY 2012-13 BUT IT IS TRUE TH AT NOTHING WAS FOUND IN RESPECT OF HSBC BANK ACCOUNT. FROM THIS, IT IS ABUN DANTLY CLEAR THAT NOTHING WAS FOUND AND SEIZED DURING THE COURSE OF S EARCH IN RESPECT OF HSBC BANK ACCOUNT UNDER THE NAME OF RUBY ENTERPRISE S INC AND WHITE CEDAR INVESTMENT LTD. THIS FACT HAS BEEN ADMITTED B Y THE AO IN ASSESSMENT ORDER AT PARA 7.1 ON PAGES 12 AND 13. FU RTHER, THE ASSESSEE HAS DENIED HAVING ANY BANK ACCOUNT WITH HSBC BANK, GENEVA. IN FACT, THE ASSESSEE CLAIMS TO HAVE NOT AWARE OF FACTS AND CONTENTS IN BASE NOTE RECEIVED FROM THE FRENCH GOVERNMENT UNDER DTAA BETWEEN TWO COUNTRIES. THE ASSESSEE FURTHER STATED THAT HIS UNC LE SHRI DILIP RAMNIKLAL MEHTA COULD BE ABLE TO EXPLAIN THE CONTENTS OF BASE NOTE AND THE ACCOUNT IN THE NAME OF WHITE CEDAR INVESTMENT LTD. WE FURTHER NOTE THAT SHRIL DILIP RAMNIKLAL MEHTA IN HIS STATEMENT RECORD ED U/S 131 IN CONNECTION WITH SEARCH AND SEIZURE ACTION CONDUCTED ON 25/08/2011, HAD CONFIRMED THAT MR ARUNKUMAR R.MEHTA NEITHER VISITED NOR OPENED AND OPERATED ANY BANK ACCOUNT WITH HSBC BANK, GENEVA IN THE NAME OF WHITE CEDAR INVESTMENT LTD. HE HAS ALSO EXPLAINED T HE SOURCE OF DEPOSITS OF USD 27,95,000 WITH HSBC BANK, GENEVA I N THE ACCOUNT OF THE WHITE CEDAR INVESTMENT LTD. AND SOURCE IS OUT O F WEALTH OF HIS LATE FATHER IN THE FORM OF NATURAL PEARLS AND RUBIES. IN THE ABOVE FACTUAL BACK GROUND, IF YOU EXAMINE THE ADDITIONS MAD BY THE AO TOWARDS BALANCE LYING IN HSBC BANK ACCOUNT IN THE NAME OF WHIT CEDA R INVESTMENT LTD & RUBY ENTERPRISES INC, WE CAME TO THE CONCLUSION THA T THE ADDITIONS MADE BY THE AO IS NOT SUPPORTED BY ANY INCRIMINATING MAT ERIAL FOUND AS A RESULT OF SEARCH. 17. THE PROVISION OF SECTION 153A DEALS WITH SITUAT IONS WHERE ASSESSMENT SHALL BE FRAMED IN CONNECTION WITH SEARC H U/S 132 OR REQUISITION U/S 132A. AS PER THE SAID PROVISION, NO TWITHSTANDING ANYTHING CONTAINED IN SECTION 139, 147, 148, 149, 151 AND 15 3, IN THE CASE OF A PERSON WHERE SEARCH WAS INITIATED U/S 132 OR BOOKS OF ACCOUNT ARE REQUISITIONED U/S 132A, THE AO SHALL ISSUE NOTICE T O SUCH PERSON REQUIRING HIM TO FURNISH WITHIN THE SAID PERIOD AS MAY BE MEN TIONED IN THE NOTICE, THE RETURN OF INCOME OF EACH ASSESSMENT YEARS FALLI NG WITHIN SIX ASSESSMENT YEARS REFERRING TO IN CLAUSE- (B). SUB-C LAUSE-(B) OF SECTION 153 A, EMPOWERS THE AO TO ASSESS OR REASSESS, THE T OTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATE TO PRECEDING ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR R EQUISITION IS MADE. THE PROVISO PROVIDED TO SECTION 153A, HOWEVER MADE IT CLEAR THAT ASSESSMENT OR REASSESSMENT, IF ANY RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS R EFERRING TO IN THIS SUB- SECTION PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 OR MAKING OF THE REQUISITION U/S 132A AS THE CASE MAY BE SHALL A BATE. FROM THE READING OF ABOVE PROVISION, IT IS VERY CLEAR THAT A LTHOUGH THE LEGISLATURE ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 6 SPECIFICALLY NOT MENTIONED ABOUT UNABATED ASSESSMEN T, THE LEGISLATURE CONSCIOUSLY PROVIDED FOR ABETMENT OF ASSESSMENT AS PER WHICH ANY PROCEEDINGS IS PENDING IN RESPECT OF ANY OF SIX ASS ESSMENT YEARS, THEN THE SAME SHALL BE ABATE AND THE AO SHALL HAVE POWER TO ASSESS OR RE- ASSESS THE TOTAL INCOME OF THOSE YEARS. AS REGARDS TO OTHER YEARS WHICH ASSESSMENT HAVE ALREADY BEEN COMPLETED AND THE ASSE SSMENT ORDERS DETERMINING THE TOTAL INCOME ARE SUBSISTING AT THE TIME OF SEARCH OR REQUISITION ARE MADE THE SCOPE OF ASSESSMENT U/S 15 3 A IS LIMITED TO REASSESS THE INCOME OF THE ASSESSEE ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH. 18. IN THE ABOVE LEGAL BACKGROUND, IF YOU EXAMINE T HE FACTS OF THE PRESENT CASE, WE FOUND THAT THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR IS UNABATED AS ON THE DATE OF SEARCH, WHICH IS BECAUSE THE ASSESSMENT FOR THE IMPUGNED YEAR HAS BEEN COMPLETED U/S 143 (1)OF THE ACT, AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) WAS EXPIR ED MUCH BEFORE THE DATE OF SEARCH I.E. 25/08/2011. IT IS ALSO AN ADMITTED F ACT THAT THE ADDITION MADE BY THE AO IS NOT SUPPORTED BY ANY INCRIMINATIN G MATERIAL FOUND AS A RESULT OF SEARCH. IN FACT, THE AO MADE ADDITIONS ON THE BASIS OF BASE NOTE RECEIVED BY THE GOVERNMENT OF INDIA UNDER EXC HANGE OF INFORMATION BETWEEN FRENCH GOVERNMENT AND INDIAN GOVERNMENT UND ER THE PROVISIONS OF DTAA, AND SAID BASE NOTE WAS RECEIVED PRIOR TO SEARCH. THE SOLE REASON FOR CONDUCTING SEARCH IN THE CASE O F THE ASSESSEE IS INFORMATION RECEIVED FROM FRENCH GOVERNMENT IN THE FORM OF BASE NOTE WITH REGARD TO UNDISCLOSED BANK ACCOUNT IN HSBC BAN K GENEVA. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE A DDITIONS MADE BY THE AO IS MERELY BASED ON BASE NOTE WHICH IS NOT FOUND AS A RESULT OF SEARCH OR REQUISITION AND CONSEQUENTLY THE ADDITION S MADE BY THE AO IN ASSESSMENT ORDER PASSED U/S 153A OF THE ACT, CONSEQ UENT TO SEARCH, IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AS A RE SULT OF SEARCH IS BAD IN LAW AND LIABLE TO BE DELETED. THIS LEGAL PROPOSITIO N IS SUPPORTED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) L TD VS CIT (SUPRA), WHERE THE COURT HELD THAT NO ADDITIONS CAN BE MADE IN RESPECT OF ASSESSMENTS WHICH HAVE BECOME FINAL IF NO INCRIMINA TING MATERIAL IS FOUND DURING THE COURSE OF SEARCH. THIS LEGAL PROPO SITION IS FURTHER SUPPORTED BY THE DECISION OF DIVISION BENCH OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF MURALI AGRO PRODUCTS LTD VS CI T (2014) 49 TAXMAN.COM 72, WHEREIN IT WAS HELD THAT NO ADDITION S CAN BE MADE IN RESPECT OF UNABATED ASSESSMENT WHICH HAVE BECOME FI NAL, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE O F SEARCH. THIS LEGAL PROPOSITION IS FURTHER REITERATED BY VARIOUS HIGH C OURTS, INCLUDING THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS GUR INDER SINGH BAWA 386 ITR 483(BOM), WHERE IT WAS HELD THAT ONCE AN ASSESS MENT HAS ATTAINED FINALITY FOR A PARTICULAR YEAR I.E. IT IS NOT PENDI NG, THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS U/S 153A OF THE ACT. 19. COMING BACK TO THE ARGUMENTS OF THE LD DR, THAT ALTHOUGH THERE IS NO INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH IN RESPECT OF ADDITIONS MADE TOWARDS BALANCE LYING IN THE HSBC BANK ACCOUNT , GENEVA, BUT FACT REMAINS THAT THERE ARE INCRIMINATING MATERIAL AND U NDISCLOSED ASSETS FOUND IN RESPECT OF SILVER ARTICLES AND GOLD JEWEL LERY AND THE SAME HAS ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 7 BEEN ADMITTED BY THE ASSESSEE IN ITS STATEMENT U/S 132(4) AND ALSO FILED RETURN, ACCORDINGLY THE AO HAS ASSESSED UNDISCLOSED INCOME FOR AY 2012-13, THEREFORE THERE IS NO LOGIC IN THE ARGUMEN TS OF THE ASSESSEE THAT THERE IS NO INCRIMINATING MATERIAL FOUND AT ALL DUR ING THE COURSE OF SEARCH. HE FURTHER, SUBMITTED THAT WHEN THE LEGISLATURE HAS SPECIFICALLY PROVIDED FOR SEPARATE ASSESSMENT IN CASE OF SEARCH, THEN IT IS INCORRECT TO SAY THAT ONLY THOSE ISSUES WHICH ARE SUPPORTED BY MATERIAL F OUND DURING THE COURSE OF SEARCH CAN ONLY TO BE CONSIDERED IN THE A SSESSMENT U/S 153A, BECAUSE ONCE THE ASSESSMENT GET REOPENED CONSEQUENT TO SEARCH AND SEIZURE, THEN AO IS BOUND TO ASSESS OR RE-ASSESS TO TAL INCOME INCLUDING UNDISCLOSED INCOME FOUND AS A RESULT OF SEARCH. WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS SINGHAD TECHNIC AL EDUCATION SOCIETY (397 ITR 344) HAS CONSIDERING SIMILAR ARGUM ENTS OF REVENUE, WHERE IT WAS HELD THAT WHERE INCRIMINATING MATERIAL IS FOUND IN THE COURSE OF SEARCH, BUT WAS NOT RELATED TO THE CONCERNED YEA R AND HENCE, THE ADDITIONS FOR THOSE YEARS COULD NOT BE MADE IN THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT. THIS LEGAL PROPOSITION HAS BEEN CONSIDERED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS MEETA GUTGUTIA (395 ITR 526) IN RESPECT OF WHICH SLP HAS BEEN DISM ISSED BY THE HONBLE SUPREME COURT IN (2018) 96 TAXMAN.COM 468, WHERE IT WAS HELD THAT INVOCATION OF SECTION 153A TO REOPEN CONCLUDED ASSESSMENT OF ASSESSMENT YEAR EARLIER TO YEAR OF SEARCH IS NOT JU STIFIED IN ABSENCE OF INCRIMINATING MATERIAL IS FOUND DURING THE COURSE O F SEARCH QUA EACH SUCH EARLIER ASSESSMENT YEAR. THE HONBLE GUJARAT HIGH C OURT IN THE CASE OF PR. CIT VS SAUMYA CONSTRUCTION (P.) LTD. HAD CONSID ERED AN IDENTICAL ISSUE IN LIGHT OF THE ARGUMENT OF THE REVENUE THAT THERE IS NO REQUIREMENT OF INCRIMINATING MATERIAL FOR EACH ASSESSMENT YEAR AND HELD THAT U/S 153A, ASSESSMENT HAS TO BE MADE IN RELATION TO SEAR CH OR REQUISITION MAINLY IN RELATION TO MATERIAL FOUND DURING THE COU RSE OF SEARCH OR REQUISITION. IF NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH, NO ADDITIONS COULD BE MADE ON THE BASIS OF MATERIAL CO LLECTED AFTER SEARCH. THE HONBLE KARNATAKA HIGH COURT, IN THE CASE OF CI T VS IBC KNOWLEDGE PARK (P.) LTD. 385 ITR 346 (KARN.) HAD CONSIDERED S IMILAR ISSUE AND HELD THAT TRIBUNAL WAS NOT JUSTIFIED IN UPHOLDING THE AS SESSMENT U/S 153C, DESPITE THEIR BEING NO SATISFACTION RECORDED TO SHO W THAT THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH WERE INCRIMINATIN G IN NATURE OR THERE IS PRIMA FACIE UNDISCLOSED INCOME. THE ASSESSEE HAS RE LIED UPON THE DECISION OF ITAT KOLAKATA, IN THE CASE OF BISHWANAT H GARODIA VS DCIT(2016) 76 TAXMANN.COM 81 (KOL). 20. THE TRIBUNAL HAD AN OCCASION TO CONSIDER AN IDE NTICAL ISSUE WHERE THE INCOME TAX DEPARTMENT HAD ALREADY INFORMATION R ELATING TO FUNDS LYING IN THE FOREIGN BANK ACCOUNT WHICH FORMED BASI S FOR SEARCH AND IT HAS BEEN HELD THAT ADDITION IN RESPECT OF FUND LYING IN SUCH BANK ACCOUNT COULD NOT BE MADE IN THE ASSESSMENT ORDER PASSED U/ S 153A OF THE ACT, AS NO INCRIMINATING MATERIAL WERE FOUND IN THE COUR SE OF SEARCH. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- THE RETURNS OF INCOME ORIGINALLY FILED BY THE ASSE SSEE FOR BOTH THE YEARS UNDER CONSIDERATION WERE DULY PROCESSED BY THE ASSE SSING OFFICER UNDER SECTION 143(1) WELL BEFORE THE DATE OF SEARCH. THE SAID SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON THE BASIS OF INFORMATION ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 8 RECEIVED BY THE ASSESSING OFFICER FROM CBDT RELATIN G TO THE UNDISCLOSED ACCOUNT MAINTAINED BY THE ASSESSEE WITH HSBC BANK, GENEVA, SWITZERLAND. DURING THE COURSE OF SEARCH, NO INCRIM INATING MATERIAL, HOWEVER, WAS FOUND RELATING TO THE TRANSACTIONS REF LECTED IN THE SAID BANK ACCOUNT OF THE ASSESSEE WITH HSBC BANK OR ANY INCOM E RELATING THERETO AND THIS POSITION WAS CATEGORICALLY ADMITTED BY THE ASSESSING OFFICER DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE COMMISSIONER (APPEALS). THE QUESTION THAT ARISES NOW IS WHETHER IN THE ABS ENCE OF SUCH INCRIMINATING MATERIAL, ANY ADDITION TO THE TOTAL I NCOME OF THE ASSESSEE CAN BE MADE ON ACCOUNT OF THE TRANSACTIONS REFLECTE D IN THE BANK ACCOUNT OF THE ASSESSEE WITH HSBC BANK OR ANY INCOME RELATI NG THERETO IN ASSESSMENTS COMPLETED UNDER SECTION 153A FOR BOTH T HE YEARS UNDER CONSIDERATION. [PARA 8] AS PER THE PROVISIONS CONTAINED IN SECTION 153A, I F THE SEARCH OR REQUISITION IS INITIATED AFTER 31-03-2003, THE ASSE SSING OFFICER IS UNDER AN OBLIGATION TO INITIATE PROCEEDINGS UNDER SECTION 15 3A FOR SIX YEARS IMMEDIATELY PRECEDING THE YEAR OF SEARCH. THE ASSES SING OFFICER IS THEN REQUIRED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE SAID SIX YEARS AND IF ANY ASSESSMENT OR REASSESSMENT OUT OF THE SAID S IX YEARS IS PENDING ON THE DATE OF INITIATION OF THE SEARCH, THE SAME W OULD ABATE, I.E. PENDING PROCEEDING QUA THE SAID ASSESSMENT YEAR WOULD NOT P ROCEED THEREAFTER AND THE ASSESSMENT HAS TO BE MADE UNDER SECTION 153 A(1)(B) OF THE ACT READ WITH THE 1ST PROVISO THEREUNDER. AS REGARDS THE OTHER YEARS FOR WHICH ASSESSMENTS H AVE ALREADY BEEN COMPLETED AND THE ASSESSMENT ORDERS DETERMINING THE ASSESSEE'S TOTAL INCOME ARE SUBSISTING AT THE TIME WHEN THE SEARCH O R REQUISITION IS MADE, THE SCOPE OF ASSESSMENT UNDER SECTION 153A IS LIMIT ED TO REASSESS THE INCOME OF THE ASSESSEE ON THE BASIS OF INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH. [PARA 9] AT THE TIME OF HEARING THE REVENUE HAS CONTENDED T HAT THE PROCESSING OF RETURNS OF INCOME FILED BY THE ASSESSEE AS MADE BY THE ASSESSING OFFICER UNDER SECTION 143(1) COULD NOT BE REGARDED AS ASSESSMENT AND IT IS, THEREFORE, NOT A CASE WHERE THE ASSESSMENTS FOR BOTH THE YEARS UNDER CONSIDERATION COULD BE SAID TO HAVE BEEN COMPLETED. IT WAS ALSO CONTENDED THAT THE CONCLUSION OF SUCH ALONE IS SUFF ICIENT TO GIVE JURISDICTION TO THE ASSESSING OFFICER TO PROCEED AG AINST THE ASSESSEE UNDER SECTION 153A OF THE ACT. IN SUPPORT OF THIS C ONTENTION, HE HAS RELIED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT V. ANIL KUMAR BHATIA [IT APPEAL NO. 1626 OF 2010, DATED 14-5-2012 ]. IT IS QUITE CLEAR FROM THE QUESTION RAISED BY THE DELHI HIGH COURT THAT THERE WAS NO DISTINCTION IN THE ASSESSMENTS COMPLET ED UNDER SECTION 143(1) AND SECTION 143(3) FOR DETERMINING THE SCOPE OF THE PROCEEDINGS UNDER SECTION 153A. HOWEVER, THE SAID QUESTION AROS E SPECIFICALLY FOR THE CONSIDERATION OF MUMBAI BENCH OF THIS TRIBUNAL IN T HE CASE OF ASSTT. CIT V. PRATIBHA INDUSTRIES LTD. [2013] 141 ITD 151/[201 2] 28 TAXMANN.COM 246 AND THE TRIBUNAL HELD THAT THE ONLY LOGICAL CON CLUSION WHICH COULD BE TRACED OUT BY HARMONIZING THE LEGISLATIVE INTENDMEN T AND THE JUDICIAL DECISION WAS THAT WHERE THE ASSESSMENTS HAD ALREADY BECOME FINAL PRIOR TO THE DATE OF SEARCH, THE TOTAL INCOME HAS TO BE D ETERMINED UNDER ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 9 SECTION 153A BY CLUBBING TOGETHER THE INCOME ALREAD Y DETERMINED IN THE ORIGINAL ASSESSMENTS AND THE INCOME THAT IS FOUND T O HAVE ESCAPED ASSESSMENT ON THE BASIS OF INCRIMINATING MATERIAL F OUND DURING THE COURSE OF SEARCH. TO ARRIVE AT THIS CONCLUSION, RELIANCE WAS PLACED BY THE TRIBUNAL ON THE DECISION OF SPECIAL BENCH, MUMBAI IN THE CASE OF AL L CARGO GLOBAL LOGISTICS LTD. V. DY. CIT [2012] 137 ITD 287/23 TAXMANN.COM 103, W HEREIN IT WAS HELD THAT EVEN THOUGH ALL THE SIX YEARS SHALL BECOME SUBJECT MATTER OF ASSESSMENT UNDER SECTION 153A AS A RESULT OF SEARCH, THE ASSESSING O FFICER SHALL GET THE FREE HAND THROUGH ABATEMENT ONLY ON THE PROCEEDINGS THAT ARE PENDING. BUT IN A CASE OR IN A CIRCUMSTANCES WHERE THE PROCEEDINGS HAVE REACHED FINALITY, ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153A(3) HAS TO BE MADE AS WAS ORIGINALLY MADE AND IN A CASE CERTAIN INCRIMINATING DOCUMENTS WERE FOUND INDICATING UNDISCLOSED INCOME, THEN ADDITION SHALL ONLY BE RES TRICTED TO THOSE DOCUMENTS/INCRIMINATING MATERIAL. [PARA 10] KEEPING IN VIEW THE DISCUSSION MADE ABOVE, THE ADD ITIONS AS FINALLY MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF TRAN SACTIONS REFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE WITH HSBC, GENEVA, SWI TZERLAND AND INCOME RELATING THERETO FOR BOTH THE YEARS UNDER CONSIDERA TION ARE BEYOND THE SCOPE OF SECTION 153A AS THE ASSESSMENTS FOR THE RELEVANT YE ARS HAD BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE WAS NO INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH TO SUPPORT AND SUBSTANTIATE THE SA ID ADDITION. THE SAID ADDITIONS MADE FOR BOTH THE YEARS UNDER CONSIDERATI ON ARE THEREFORE, DELETED. [PARA 11] 21. THE ASSESSEE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA (2016) 380 ITR 573(DEL.) WHERE THE COURT HELD AS UNDER:- ON A CONSPECTUS OF SECTION 153A(1), READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN VARIOUS DECISIONS, TH E LEGAL POSITION THAT EMERGES IS AS UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132, N OTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SE ARCHED REQUIRING HIM TO FILE RETURNS FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECED ING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE D ATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH ASSESSMENT YEARS W ILL HAVE TO BE COMPUTED BY THE ASSESSING OFFICERS AS A FRESH EXERCISE. (III) THE ASSESSING OFFICER WILL EXERCISE NORMAL A SSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT ASSESSMENT Y EAR IN WHICH THE SEARCH TAKES PLACE. THE ASSESSING OFFICER HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN S EPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS 'IN WHI CH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) A LTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON T HE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATE RIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR M ADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASS ESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATE RIAL.' ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 10 (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE C OMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABLE TO ABATED PRO CEEDINGS (I.E., THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO C OMPLETE ASSESSMENT PROCEEDINGS. 33 ITA NOS.3712 & 4721/MUM/2017 (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 ASSESSMENT YEAR ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTH ER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE ASSESSING OFFICER. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVE RED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCL OSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. [PARA 37] THE PRESENT APPEALS CONCERN ASSESSMENT YEARS 2002- 03, 2005-06 AND 2006- 07. ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURIN G THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED . [PARA 38] THE REVENUE'S APPEALS ARE ACCORDINGLY DISMISSED. [ PARA 40] 22. IN ANOTHER CASE, THE ITAT DELHI BENCH IN THE CA SE OF HBN DAIRIES & ALLIED LTD. (2018) (96 TAXMANN.COM 353)(DEL.) HAD AN OCCAS ION TO CONSIDER IDENTICAL ISSUE IN LIGHT OF PROVISION OF SECTION 153A OF THE ACT, AND HELD THAT WHERE THERE IS NO INCRIMINATING MATERIAL WAS FOUND IN COURSE OF SE ARCH RELEVANT TO THOSE EXPENSES WHICH HAVE BEEN ADDED IN ASSESSMENT FRAMED U/S 153A OF THE ACT, CLAIM RAISED BY THE ASSESSEE WAS TO BE ALLOWED. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER:- THE SHORT CONTROVERSY IS WHETHER THE LOSS DECLARED BY THE ASSESSEE IN ITS RETURNS UNDER SECTION 153A FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 BE CARRIED FORWARD AND SET OFF AGAINST THE POSITIVE IN COME FOR THE ASSESSMENT YEAR 2006-07. THE ACCOUNTANT MEMBER HAS SPECIFICALLY REC ORDED IN HIS PROPOSED ORDER THAT THOUGH NO INCRIMINATING MATERIAL RELEVAN T FOR ASSESSMENT YEARS 2004- 05, 2005-06 AND 2006-07 AGAINST THE ASSESSEE, WERE UNEARTHED DURING THE COURSE OF SEARCH UNDER SECTION 132 BUT INCRIMINATIN G MATERIAL RELEVANT FOR OTHER YEARS REFERRED TO IN CLAUSE (B) OF SECTION 34 ITA N OS.3712 & 4721/MUM/2017 153A(1) WERE INDEED UNEARTHED. HE APPLIED THE JUDGMENT IN THE CASE OF SMT. DAYAWA NTI V. CIT [2016] 75 TAXMANN.COM 308/[2017] 245 TAXMAN 293/390 ITR 496 T O HOLD THAT EVEN IN RESPECT OF THOSE ASSESSMENT YEARS IN RESPECT OF WHI CH NO INCRIMINATING MATERIALS WAS UNEARTHED DURING SEARCH UNDER SECTION 132; AND EVEN IF NO ASSESSMENTS OR REASSESSMENTS ARE PENDING FOR THOSE ASSESSMENT YEAR(S) ON THE DATE OF SEARCH UNDER SECTION 132; THERE IS NO O BSTACLE IN MAKING ADDITION UNDER SECTION 153A PROVIDED SOME INCRIMINATING MATE RIAL IN THE CASE OF THE ASSESSEE FOR ANY ASSESSMENT YEAR(S) (REFERRED TO IN CLAUSE (B) OF SECTION 153A(1) IS UNEARTHED AS A RESULT OF SEARCH UNDER SE CTION 132 WHETHER BY STATEMENT UNDER SECTION 132(4) OR BY WAY OF UNDISCL OSED INVESTMENT OR BY WAY OF INCRIMINATING DOCUMENTS OR IN ANY OTHER MANNER. THIS IS HOW, HE HELD THAT THE DISALLOWANCE OF LOSS CLAIMED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 ON THE GRO UND OF CLAIM OF VARIOUS ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 11 EXPENSES MADE BY THE ASSESSEE, NOT BEING FULLY VERI FIABLE, WAS IN ORDER. THE JUDICIAL MEMBER REITERATED THE FACT THAT NO INCRIMI NATING MATERIAL OR DOCUMENT OR EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH IN R ELATION TO SUCH TWO ASSESSMENT YEARS AND, HENCE, THE LOSS SO CLAIMED FO R CARRY FORWARD AND SET OFF SHOULD BE ALLOWED AGAINST THE INCOME FOR THE ASSESS MENT YEAR 2006-07. [PARA 6] IT HAS BEEN NOTICED ABOVE THAT SEARCH IN THIS CASE WAS CONDUCTED ON 20-11- 2009. THE ASSESSMENT YEARS UNDER CONSIDERATION ARE 2004-05, 2005-06 AND 2006-07. THE ASSESSEE FILED RETURNS FOR THESE YEARS ORIGINALLY UNDER SECTION 139 AT THE MATERIAL TIME. WHEREAS THE RETURN FOR THE AS SESSMENT YEAR 2004-05 WAS PROCESSED UNDER SECTION 143(1) OF THE ACT, ASSESSME NTS WERE COMPLETED UNDER SECTION 143(3) IN RESPECT OF THE ASSESSMENT YEARS 2 005-06 AND 2006-07. THE ASSESSEE'S PROFIT & LOSS ACCOUNT FOR THE ASSESSMENT YEAR 2004-05 SHOWS INCURRING OF EXPENSES AT RS. 95.21 LACS AGAINST WHI CH LOSS OF RS. 24.30 LAC WAS COMPUTED AND CLAIMED IN THE RETURN OF INCOME. THE R ETURN OF THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) DETERMINING LOSS AT THE DECLARED FIGURE. PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE ASSESSMENT YEA R 2005-06 SHOWS INCURRING OF EXPENSES AT RS. 1.31 CRORES AND THE ASSESSEE FIL ED RETURN AT A LOSS OF RS. 23,59,200/-. AFTER MAKING SOME DISALLOWANCE, THE AS SESSING OFFICER COMPLETED ASSESSMENT UNDER SECTION 143(3) AT A LOSS OF RS. 18 .17 LACS. INSOFAR AS THE ASSESSMENT YEAR 2006-07 IS CONCERNED, THE ASSESSEE FILED RETURN AND THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) DETER MINING NIL INCOME, BUT CHARGING TAX UNDER SECTION 115JB ON BOOK PROFIT OF RS. 10,90,440/-. THUS, IT IS EVIDENT THAT THE ASSESSMENTS FOR THE ASSESSMENT YEA RS 2004-05 TO 2006-07 STOOD COMPLETED ON THE DATE OF SEARCH ON 20-11-2009 . [PARA 7] AT THIS JUNCTURE, IT IS SIGNIFICANT TO NOTE THAT W HEN A SEARCH IS CONDUCTED, THERE CAN BE TWO TYPES OF ASSESSMENT, NAMELY, COMPLETED A SSESSMENTS AND NON- COMPLETED OR PENDING ASSESSMENTS. ASSESSMENT YEARS HAVING COMPLETED ASSESSMENTS MEAN THE YEARS FOR WHICH EITHER THE ASS ESSMENTS STOOD COMPLETED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OR SE CTION 144 BEFORE THE DATE OF SEARCH OR THE YEARS FOR WHICH THE REGULAR ASSESSMEN TS WERE NOT TAKEN UP AFTER THE FILING OF THE RETURNS BY THE ASSESSEE AND FURTH ER THAT THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) STOOD EXPIRED ON THE DA TE OF SEARCH. [PARA 8] AS PER THE SCHEME UNDER THE ACT, A RETURN FILED BY THE ASSESSEE IS FIRST PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 14 3(1)(A) IN WHICH TOTAL INCOME IS COMPUTED AFTER MAKING THE SPECIFIED ADJUS TMENTS. AS PER CLAUSE (B), TAX AND INTEREST, IF ANY, IS COMPUTED ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A). CLAUSES (D) AND (E) OF SECTION 14 3(1) PROVIDE THAT AN INTIMATION SHALL BE SENT TO THE ASSESSEE SPECIFYING THE SUM DE TERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE ASSESSEE AND TH E AMOUNT OF REFUND DUE TO THE ASSESSEE IN PURSUANCE OF THE DETERMINATION UNDE R CLAUSE (C) SHALL BE GRANTED TO THE ASSESSEE. PROCESSING OF THE RETURN U NDER SECTION 143(1) AND THE CONSEQUENTIAL ISSUING OF INTIMATION IS CONSTRUED AS PASSING OF THE ASSESSMENT ORDER EXCEPT WHERE A NOTICE UNDER SECTION 143(2) IS ISSUED FOR A SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE ACT. IN A CASE, WHERE NOTICE UNDER SECTION 143(2) IS IS SUED, THE PROCESSING OF RETURN UNDER SECTION 143(1) AND THE CONSEQUENTIAL I SSUANCE OF INTIMATION DOES NOT AMOUNT TO PASSING OF THE ASSESSMENT ORDER BECAU SE THE ASSESSMENT ORDER, IN SUCH CIRCUMSTANCES, IS PASSED AFTER DUE SCRUTINY UNDER SECTION 143(3) OF THE ACT. THERE CAN BE ONLY ONE ASSESSMENT ORDER FOR ONE YEAR. THE CRUX OF THE ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 12 MATTER IS THAT WHERE NO NOTICE UNDER SECTION 143(2) IS ISSUED WITHIN THE PERMISSIBLE MAXIMUM TIME, THE ISSUANCE OF INTIMATIO N ON PROCESSING THE RETURN UNDER SECTION 143(1), IS CONSTRUED AS COMPLETION OF ASSESSMENT. HOWEVER, WHERE SUCH NOTICE IS ISSUED, THE INTIMATION ISSUED UNDER SECTION 143(1)(A) LOSES THE CHARACTER OF AN ASSESSMENT ORDER, WHICH IN THAT CASE, IS PASSED UNDER SECTION 143(3) AFTER THOROUGH SCRUTINY. TO SUM UP, AN ASSESSMENT IS TERMED AS COMPLETED ON THE PASSING OF AN ORDER UNDER SECTION 143(3) OF THE ACT, BUT, IN A CASE, WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE , WHICH IS PROCESSED UNDER SECTION 143(1), BUT NO FURTHER NOTICE UNDER SECTION 143(2) IS ISSUED AND THE SAME CANNOT BE ISSUED BECAUSE OF THE TIME LIMIT SET TING IN, THE INTIMATION SENT TO THE ASSESSEE UNDER SECTION 143(1) IS ALSO TREATED A S A COMPLETED ASSESSMENT FOR THIS PURPOSE. [PARA 9] AU CONTRAIRE, THE ASSESSMENT YEARS HAVING NON-COMP LETED 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 EXP RESS PROVISIONS OF THE SECOND PROVISO TO SECTION 153A. THIS WILL ALSO EMBR ACE THE YEARS IN RESPECT OF WHICH THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTI ON 143(2) IS STILL AVAILABLE WITH THE ASSESSING OFFICER AS ON THE DATE OF SEARCH. [PA RA 10] ADVERTING TO THE EXTANT FACTUAL MATRIX, IT IS SEEN THAT THE ASSESSMENT YEARS UNDER CONSIDERATION FALL IN THE CATEGORY OF 'COMPLE TED ASSESSMENTS' AND NOT THE 'PENDING ASSESSMENTS' ABATING ON THE DATE OF SEARCH . [PARA 11] ONCE A SEARCH TAKES PLACE UNDER SECTION 132, THE A SSESSEE IS OBLIGED TO FILE RETURNS FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PR ECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TOOK PLACE. INSOFAR AS THE COMPLETED ASSESSMENTS AS ON THE DATE OF THE SEARCH ARE CONCERNED, THE SAME ARE TO BE REPEATED AS INCREASED BY CERTAIN ADDITION S BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IN OTHE R WORDS, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, THEN , THE AMOUNT OF TOTAL INCOME DETERMINED UNDER THE EARLIER COMPLETED ASSESSMENTS, IS TO BE ADOPTED IN SUCH FRESH ASSESSMENTS UNDER SECTION 153A WITHOUT MAKING ANY FURTHER ADDITION. [PARA 12] IT IS, SEEN THAT WHEREAS THE JUDGMENT IN CIT V. KA BUL CHAWLA [2015] 61 TAXMANN.COM 412/234 TAXMAN 300/[2016] 380 ITR 573 ( DELHI) 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 I NCOME IN RESPECT OF BUSINESS CARRIED ON OUTSIDE THE BOOKS OF ACCOUNT IN CONNECTI ON WITH PRODUCTION AND SALE OF GUTKA. IT WAS NOT A CASE IN WHICH NO INCRIMINATI NG MATERIAL WAS FOUND. RATHER THE ASSESSEE'S STATEMENT GIVEN AT THE TIME OF SEARC H CONFIRMING THE CARRYING ON OF BUSINESS OUTSIDE THE BOOKS OF ACCOUNT WAS EXTRAP OLATED TO THE EARLIER YEARS AS WELL. [PARA 14] TURNING TO THE FACTS OF THE INSTANT CASE, IT IS SE EN THAT THE ASSESSING OFFICER HAS NOT DISALLOWED ANY SPECIFIC AMOUNT OF EXPENSES ON ACCOUNT OF ANY INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. IT IS PERTINENT TO NOTE THAT THE ASSESSEE INCURRED EXPENSES OF RS. 95.21 LACS FOR TH E ASSESSMENT YEAR 2004-05. WHAT THE ASSESSING OFFICER HAS DONE IS TO DISALLOW LOSS OF RS. 23.05 LACS SIMPLY ON THE GROUND THAT THE EXPENSES INCURRED BY THE ASS ESSEE WERE NOT FULLY VERIFIABLE. IT IS NOT EVEN A CASE OF DISALLOWING AN Y PARTICULAR AMOUNT OF EXPENSE ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 13 FOR WHATEVER REASON. THUS, IT IS MANIFEST THAT ONLY A PART OF THE EXPENSES, REPRESENTING LOSS OF RS. 23.05 LACS, WERE DISALLOWE D AND THAT TOO, ON THE GROUND THAT COMPLETE DETAILS IN RESPECT OF THE EXPENSES IN CURRED WERE NOT FURNISHED BY THE ASSESSEE DURING THE COURSE OF PROCEEDINGS UNDER SECTION 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 CRORES AND CLAIMED LO SS OF RS. 23.59 LACS. THE ASSESSING OFFICER, IN THE PROCEEDINGS UNDER SECTION 153A, REDUCED SUCH LOSS TO RS. NIL, THEREBY IMPLYING THAT ONLY A PART OF THE E XPENSES TO THE EXTENT OF THE AMOUNT OF LOSS, WAS DISALLOWED FOR NON-FURNISHING O F NECESSARY DETAILS IN SUPPORT OF EXPENSES. THE CRUX OF THE MATTER IS THAT ONLY A PART OF THE EXPENSES REPRESENTING LOSS FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 WAS DISALLOWED AND NOT ALLOWED TO BE CARRIED FORWARD FO R SET OFF AGAINST THE INCOME FOR ASSESSMENT YEAR 2006-07 SIMPLY ON THE GROUND TH AT EXPENSES WERE NOT FULLY VERIFIABLE SINCE COMPLETE DETAILS WERE NOT FURNISHE D DURING THE COURSE OF ASSESSMENT PROCEEDINGS. [PARA 15] ADMITTEDLY, ASSESSMENTS FOR THE ASSESSMENT YEARS 2 004-05 AND 2005-06 STOOD COMPLETED ON THE DATE OF SEARCH. THE AMOUNT O F LOSS FINALLY DETERMINED FOR THE ASSESSMENT YEAR 2004-05 IN THE ORIGINAL ASS ESSMENT WAS RS. 23,05,880/-. SIMILARLY, THE AMOUNT OF LOSS FINALLY DETERMINED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER PASSED UND ER SECTION 143(3) ON 30-11- 2007 FOR THE ASSESSMENT YEAR 2005-06 WAS RS. 18,17, 685/-. IN THE FRESH ASSESSMENTS UNDER SECTION 153A, THE ASSESSING OFFIC ER WAS AUTHORIZED TO REPEAT THE ORIGINALLY ASSESSED INCOME (LOSS) PLUS F RESH 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 CONSIDERATION. THERE IS NO REFERENCE WH ATSOEVER TO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH CASTING SHADOW OF DOUBT ON THE GENUINENESS OF SUCH EXPENSES. SINCE TH ESE EXPENSES WERE CLAIMED AS DEDUCTION IN THE ORIGINAL RETURNS AND TH E ASSESSING OFFICER ACCEPTED THE LOSS SO DECLARED EXCEPT FOR MAKING SOME MODIFIC ATION FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSING OFFICER WAS SUPPOSED TO RESTRICT HIS EXERCISE OF COMPLETING ASSESSMENTS UNDER SECTION 153A ONLY TO T HE AMOUNT OF INCOME/LOSS DETERMINED ORIGINALLY. IT WAS NOT OPEN TO HIM TO VE NTURE TO RE-EXAMINE THE DETAILS IN RESPECT OF EXPENSES IN ASSESSMENT PROCEEDINGS UN DER SECTION 153A READ WITH SECTION 143(3) FOR THE PATENT REASON THAT, ADM ITTEDLY, NO INCRIMINATING MATERIAL IN RESPECT OF SUCH EXPENSES WAS FOUND DURI NG THE COURSE OF SEARCH. [PARA 16] THE CONTENTION OF REVENUE THAT THERE WAS SOME INCR IMINATING 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 E XISTENCE OF AN INCRIMINATING MATERIAL FOR THE RELEVANT YEAR IS SINE QUA NON FOR MAKING ANY DISALLOWANCE OF EXPENSES IN RESPECT OF THE COMPLETED ASSESSMENTS. [ PARA 17] SECONDLY, IT IS NOT EVEN A CASE IN WHICH SOME INCR IMINATING MATERIAL INDICATING RECORDING OF BOGUS EXPENSES IN THE SUBSEQUENT YEARS WAS FOUND, WHICH COULD HAVE REFLECTION ON THE YEARS IN QUESTION. THE REVEN UE HAS NOT DRAWN ATTENTION OF THE BENCH TOWARDS ANY PART OF THE STATEMENT UNDER S ECTION 132(4) OF THE ASSESSEE, WHICH SUGGESTS, EVEN REMOTELY, THAT THE A SSESSEE WAS BOOKING BOGUS EXPENSES IN ITS BOOKS OF ACCOUNT FOR THE SUCC EEDING YEARS, SO AS TO EXTRAPOLATE THE SAME TO THE YEARS UNDER CONSIDERATI ON. THE TRUMP CARD OF THE ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 14 DEPARTMENT'S CASE IS THE RATIO OF SMT. DAYAWANTI (S UPRA), WHICH COULD HAVE BEEN APPLIED ONLY IF THE REVENUE HAD ESTABLISHED TH E RECORDING OF SOME BOGUS EXPENSES BY THE ASSESSEE IN LATER YEARS, SO AS TO E NABLE 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 DECIDEND I IN THE CASE OF SMT. DAYAWANTI (SUPRA) DOES NOT APPLY TO THE FACTS OF THE CASE. IN THE ABSENCE OF ANY MATERIAL, THE GENUINENESS OF EXPENSES INCURRED BY THE ASSESSE E, AND THAT TOO PARTLY TO THE EXTENT OF LOSSES CLAIMED, COULD NOT HAVE BEEN D ISTURBED BY THE ASSESSING OFFICER IN THE ASSESSMENT UNDER SECTION 153A. [PARA 17] THUS, IT IS APPARENT THAT BETWEEN THE TWO JUDGMENT S OF KABUL CHAWLA (SUPRA) AND SMT. DAYAWANTI (SUPRA), THE FACTS AND CIRCUMSTA NCES OF THE INSTANT CASE ARE FULLY COVERED BY THE RATIO IN THE CASE OF KABUL CHA WLA (SUPRA), WHICH VIEW HAS BEEN REITERATED BY THE DELHI HIGH COURT IN A MORE R ECENT DECISION IN PRINCIPAL CIT V. MEETA GUTGUTIA [2017] 82 TAXMANN.COM 287/248 TAXMAN 384/395 ITR 526 (DELHI). IN VIEW OF THE FOREGOING DISCUSSION, T HE VIEW CANVASSED BY THE JUDICIAL MEMBER IN HOLDING THAT THE AMOUNT OF DETER MINED 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 IS CORRECT. THE QUESTION PROPOSED IS, THEREFORE, ANSWERED IN NEGATIVE BY HOL DING THAT THE COMMISSIONER (APPEALS) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITI ONS MADE BY THE ASSESSING OFFICER FOR THE YEARS OF COMPLETED ASSESSMENTS, WHI CH WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH RELATING TO SUCH YEARS AND CONSEQUENTLY DENYING THE BENEFIT OF CARRY FORWA RD AND SET OFF OF THE RESULTANT LOSS IN SUBSEQUENT YEAR. [PARA 18] 23. THE LD. DR HAS DRAWN OUR ATTENTION TO THE DECIS ION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF E. N. GOPUKUMAR VS CIT [2 016] 75 TAXMANN.COM 215 (KERALA) WHERE THE HONBLE HIGH COURT HAS HELD AS U NDER:- IN SO FAR AS THE ISSUE AS TO WHETHER IT IS NECESSA RY THAT INCRIMINATING MATERIALS SHOULD BE UNEARTHED IN A SEARCH UNDER SECTION 132 T O SUSTAIN A NOTICE ISSUED UNDER SECTION 153A(1)(A), IT IS OPINED THAT FOR THE ISSUANCE OF A NOTICE UNDER SECTION 153A(1)(A), IT IS NOT NECESSARY THAT THE SE ARCH ON WHICH IT WAS FOUNDED SHOULD HAVE NECESSARILY YIELDED ANY INCRIMINATING M ATERIAL AGAINST THE ASSESSEE OR THE PERSON TO WHOM SUCH NOTICE IS ISSUED. [PARA 7] SECTION 153A IS A PROVISION WHICH DEALS WITH ASSES SMENT IN CASE OF SEARCH OR REQUISITION. THE ACTIVATION OF A SEARCH IS NOT SOME THING WHICH IS REGULATED BY ANY LIMIT AS TO PERIOD OF TIME. EVEN IF RETURNS ARE FILED AND REGULAR ASSESSMENTS ARE CONCLUDED, SEARCH ON PREMISES COULD ALWAYS BE M ADE, IF THE AUTHORITY CONCERNED IS SATISFIED THAT ACTION OUGHT TO PROCEED IN THAT LINE. ONCE THAT IS DONE, SECTION 153A(1)(A) AUTHORISES THE ISSUANCE OF NOTICE CALLING FOR FILING OF RETURNS. ONCE A RETURN IS FILED IN ANSWER TO SUCH A NOTICE, THE EXPLANATION TO SECTION 153A PROVIDES, AMONG OTHER THINGS, THAT ALL PROVISI ONS OF THE ACT WILL APPLY TO THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT. THIS IS THE MANNER IN WHICH THE PROVISIONS IN SECTIONS 153A, 153B AND 153C WOUL D REGULATE. ONCE THAT IS DONE, IT IS WELL WITHIN THE JURISDICTION OF THE ASS ESSING AUTHORITY TO PROCEED WITH ANY LAWFUL MODES OF ASSESSMENT AS PRESCRIBED IN THE ACT. THE STATUTE NOWHERE MAKES IT CONDITIONAL THAT THE DEPARTMENT HAS TO UNEARTH SOME INCRIMINATING MATERIAL TO CONCLUDE SOME METHOD AGAINST THE ASSESSEE IN EVENTS WHERE THE ASSESSMENT IS TRIGGERED BY A NOTIC E UNDER SECTION 153A(1)(A) OF THE ACT. THIS MEANS THAT EVEN WHEN SUCH NOTICE I S TRIGGERED FOLLOWING A ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 15 SEARCH, THE ASSESSMENT PROCEEDINGS CAN BE CONCLUDED IN ANY MANNER KNOWN TO LAW, INCLUDING UNDER SECTION 143(3) OR EVEN SECTION 144 OF THE ACT, IF NEED BE. THEREFORE, THE ASSESSMENT PROCEEDINGS GENERATED BY THE ISSUANCE OF A NOTICE UNDER SECTION 153A(1)(A) CAN BE CONCLUDED AGAINST T HE INTEREST OF THE ASSESSEE INCLUDING MAKING ADDITIONS EVEN WITHOUT ANY INCRIMI NATING MATERIAL BEING AVAILABLE AGAINST THE ASSESSEE IN THE SEARCH UNDER SECTION 132 ON THE BASIS OF WHICH THE NOTICE WAS ISSUED UNDER SECTION 153A(1)(A ) OF THE ACT. [PARA 8] IN THE CASE IN HAND, THE ASSESSING AUTHORITY HAD, UPON RECEIPT OF THE RETURNS IN ANSWER TO THE NOTICE UNDER SECTION 153A(1)(A) OF THE ACT, GIVEN AN OPPORTUNITY TO THE ASSESSEE TO INTERACT WITH THE OFFICER AND TH EREAFTER HE WAS REQUIRED TO PLACE A CASH FLOW STATEMENT. ALL THAT FOLLOWED THER EAFTER IS THE ASSESSING AUTHORITY CARRYING OUT AN EXERCISE OF ACTING ON THE CASH FLOW STATEMENT AND CONCLUDING THE ASSESSMENT BY DETERMINING THE AMOUNT S ON A MEANINGFUL AND APPROPRIATE APPLICATION OF THE CASH FLOW STATEMENT BY REARRANGING THE ENTRIES THEREOF. THAT ACTIVITY CARRIED OUT BY THE ASSESSING AUTHORITY, THOUGH TO A LARGER EXTENT, WAS FOUND AGAINST BY THE COMMISSIONER (APPE ALS), HAS FOUND DISAPPROVAL AT THE HANDS OF THE TRIBUNAL WHICH IS T HE LAST FACT FINDING AUTHORITY. THE DECISION OF THE TRIBUNAL CANNOT BE CRITISISED A S UNREASONABLE, PERVERSE OR UNAVAILABLE ON THE FACE OF RECORD. IN THE RESULT, THESE APPEALS ARE DISMISSED. [PARA 9] 24. WE, FURTHER NOTED THAT N ANALYSIS OF JUDGMENTS DISCUSSED HEREINABOVE, ALTHOUGH DIVERGENT VIEWS HAD COME FROM DIFFERENT HI GH COURTS ON THE ISSUE, BUT MAJORITY OF THE HONBLE HIGH COURT INCLUDING JURISD ICTIONAL HIGH COURT OF BOMBAY DIVISION BENCH IN THE CASE OF CIT VS MURALI AGRO PR ODUCTS LTD.(SUPRA) HAD RULED IN FAVOUR OF THE ASSESSEE. THE HONBLE SUPREME COUR T HAS DISMISSED SLP FILED BY THE DEPARTMENT IN THE CASE OF PR. CIT VS MEETA GUTGUTIA (SUPRA), WHERE IT WAS CATEGORICALLY HELD THAT INVOCATION OF SECTION 1 53A TO REOPEN CONCLUDE ASSESSMENTS OF ASSESSMENT YEARS EARLIER TO YEAR OF SEARCH WAS NOT JUSTIFIED IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH QUA EACH SUCH EARLIER ASSESSMENT YEAR. IT IS SETTLED LAW WHE N THERE ARE CONTRADICTING JUDGMENTS OF DIFFERENT HIGH COURTS, THE DECISION WH ICH IS IN FAVOUR OF THE ASSESSEE NEEDS TO BE CONSIDERED IN VIEW OF THE DECI SION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS M/S VEGETABLES PRODUCTS (INDIA) LTD(1973) 88 ITR 192. FURTHER, JUDICIAL DISCIPLINE DEMANDS TH AT LOWER COURTS IN THE JURISDICTION OF ANY HIGH COURT IS BOUND TO FOLLOW T HE RATIO LAID DOWN BY THE JURISDICTIONAL HIGH COURT, ACCORDINGLY, BY FOLLOWIN G THE JUDICIAL DISCIPLINE AND ALSO CONSIDERING MAJORITY VIEW OF VARIOUS HIGH COURTS, I NCLUDING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABU L CHAWLA, WHERE THE SLP HAS BEEN DISMISSED, WE ARE OF THE CONSIDERED VIEW T HAT THE AO WAS ERRED IN MAKING ADDITIONS TOWARDS PEAK BALANCE LYING IN THE HSBC BANK ACCOUNT, GENEVA IN THE NAME OF RUBY ENTERPRISES INC. AND WHI TE CEDAR INVESTMENT LTD. AS UNEXPLAINED MONEY U/S 69A OF THE ACT, IN THE HAN DS OF THE ASSESSEE. THE LD. CIT(A) WITHOUT APPRECIATING THE FACTS HAS SIMPLY RE JECTED LEGAL GROUND TAKEN BY THE ASSESSEE. HENCE, WE REVERSE THE FINDINGS OF THE LD. CIT(A) AND DELETED ADDITIONS MADE BY THE AO TOWARDS PEAK BALANCE LYING IN HSBC BANK, GENEVA AS UNEXPLAINED MONEY U/S 69A OF THE ACT, IN THE HAN DS OF THE ASSESSEE. 25. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON, FROM THE ASSESSEE AS WELL AS REVENUES APPEAL IS ADDITION MADE TOWARDS B ALANCE IN HSBC BANK ACCOUNT, GENEVA IN THE NAME OF RUBY ENTERPRISES INC . AND WHITE CEDAR INVESTMENT LTD. AMOUNTING TO RS.1,79,333/- AND RS.2 00,12,56,838/- AS ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 16 UNEXPLAINED MONEY U/S 69A OF THE ACT. THE AO HAS MA DE TOWARDS PEAK BALANCE LYING IN THE HSBC BANK ACCOUNT, GENEVA IN THE NAME OF RUBY ENTERPRISES INC. FOR RS.1,79,333/- AND A SUM OF RS. 200,12,56,838/- IN THE NAME OF WHITE CEDAR INVESTMENTS LTD. ON THE GROUND THAT ALTHOUGH THE AS SESSEE DENIED HAVING OPERATED ANY BANK ACCOUNT IN HSBC BANK GENEVA AND A LSO HE IS NOT BENEFICIARY OF THOSE TWO BANK ACCOUNTS, BUT THE CON TENTS OF BASE NOTE CLEARLY CONTAINS THE NAME OF THE ASSESSEE AS ONE OF THE BEN EFICIARY AND ALSO THE ASSESSEE HAS FAILED TO SIGN CONSENT WAIVER FORM WHI CH ENABLE THE AO TO GATHER INFORMATION FROM THE HSBC BANK, GENEVA. THE AO FURT HER OBSERVED THAT THE CONTENTS OF BASE NOTE ARE EXACTLY MATCHED WITH INFO RMATION FURNISHED IN INCOME TAX RETURN FILED BY THE ASSESSEE FOR THE RELEVANT P ERIOD. THE AO FURTHER OBSERVED THAT THE ASSESSEE HAS HIDDEN INFORMATION FROM THE D EPARTMENT ABOUT THE BANK ACCOUNT IN HSBC BANK, GENEVA EVEN THOUGH THE INFORM ATION RECEIVED FROM FRENCH GOVERNMENT UNDER DTAA AGREEMENT CLEARLY ESTA BLISHED THAT THE ASSESSEE IS ONE OF THE ACCOUNT HOLDER IN HSBC BANK, GENEVA AND THE SAME HAS NOT BEEN DISCLOSED TO THE INDIAN INCOME TAX AUT HORITIES. THE AO FURTHER OBSERVED THAT HAD BEEN THE ASSESSEE GIVEN CONSENT F OR COLLECTING INFORMATION FROM THE FRENCH AUTHORITIES OR BANK BY SIGNING CONS ENT WAIVER FORM, THE MATTER WOULD BE DIFFERENT, BUT WHEN THE ASSESSEE HAS NOT S IGNED CONSENT WAIVER FORM, THE PRESUMPTION GOES AGAINST THE ASSESSEE AND THE P ROVISION OF SECTION 61 OF THE INDIAN EVIDENCE ACT 1872 CAME INTO OPERATION, A S PER WHICH SECONDARY EVIDENCED MAY BE GIVEN TO THE EXISTENCE, CONDITION OR CONTENTS OF DOCUMENTS, WHEN THE ORIGINAL SHOWN OR APPEARS TO BE IN THE POS ITION OR POWER OF PERSON AGAINST WHOM THE DOCUMENTS IS SOUGHT TO BE PROVED O R OF ANY PERSON OUT OF WHICH OR NOT SUBJECT TO THE PROCESS OF THE COURT OR OF ANY PERSON LEGALLY BOUND TO PRODUCE IT ,AND WHEN, AFTER THE NOTICE MENTIONED IN SECTION 66, SUCH PERSON DOES NOT PRODUCE IT. SINCE, THE ORIGINAL DOCUMENTS WAS IN THE POSSESSION OF BANK OUTSIDE THE JURISDICTION OF THE GOVERNMENT OF INDIA AND ALSO SWISS BANK HAD NOT PARTED WITH INFORMATION REGARDING COMPLETE BANK ACCOUNT STATEMENT OF THE ASSESSEE, THE BASE NOTE WAS CONSIDERED BY THE A O AS THE EXISTENCE, CONDITION, OR CONTENTS OF THE DOCUMENT. THE INFORMA TION RECEIVED BY THE GOVERNMENT OF INDIA IS FOUND TO BE TRUE AND GENUINE , ACCORDINGLY, HE CAME TO THE CONCLUSION THAT THE ASSESSEE IS BENEFICIARY OF BANK ACCOUNT OPENED AND MAINTAINED IN THE NAME OF RUBY ENTERPRISES INC. AND ALSO WHITE CEDAR INVESTMENTS LTD. HENCE, HE MADE ADDITIONS TOWARDS P EAK BALANCE IN THE ACCOUNT OF RUBY ENTERPRISES INC. FULLY IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED MONEY U/S 69A OF THE ACT. IN SO FAR AS, PEAK BALANCE LYING IN THE BANK ACCOUNT OF WHITE CEDAR INVESTMENT LTD., TAKING NOTE OF THE FACT THAT ESTATE OF LATE SHRI RAMNIKLAL R MEHTA WAS OFFERED AN AMOUN T OF RS.11,46,72,012/- AND ALSO THE AO HAVING JURISDICTION OVER ESTATE OF SHRI RAMNIKLAL R. MEHTA HAD MADE ADDITIONS OF RS.1,88,65,84,826/- IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT AND SUCH ADDITION HAS BEEN CONFIRMED BY THE LD. CI T(A), THE LD. AO HAS MADE ADDITION IN THE HANDS OF THE ASSESSEE SUBSTANTIVELY FOR 1/7TH OF TOTAL AMOUNT OF RS.200,12,56,838/- AND BALANCE AMOUNT BEING 6/7TH T OTAL AMOUNT IS ASSESSED PROTECTIVELY WITH A CONDITION THAT THE SAME IS BEIN G ADDED SUBSTANTIVELY IN THE NAME OF REMAINING SIX BENEFICIARIES SEPARATELY. 26. WE HAVE HEARD BOTH PARTIES, PERUSED THE MATERIA L AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. THE F ACTS BORNE OUT FROM THE RECORD CLEARLY INDICATE THAT THE ASSESSEE HAS DENIE D HAVING ANY BANK ACCOUNT AT HSBC BANK, GENEVA EITHER IN HIS INDIVIDUAL CAPACITY OR AS A BENEFICIARY OF ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 17 ACCOUNTS IN THE NAME OF RUBY ENTERPRISES INC. AND W HITE CEDAR INVESTMENT LTD. THE ASSESSEE RIGHT FROM THE BEGINNING EXPRESSES HIS UNAWARENESS ABOUT CONTENTS OF THE BASE NOTE RECEIVED FROM FRENCH GOVE RNMENT. THE ASSESSEE, DURING THE COURSE OF SEARCH WHILE RECORDING THE STA TEMENT U/S 132(4), STATED THAT HE IS NOT AWARE OF ANY BANK ACCOUNT IN HSBC BANK, G ENEVA AND FURTHER STATED THAT MR. DILIP RAMNIKLAL MEHTA WOULD BE ABLE TO EXP LAIN THE NATURE AND SOURCE OF THE INVESTMENT IN THE BANK ACCOUNT WITH HSBC BANK, GENEVA OF WHITE CEDAR INVESTMENT LTD.. WE FURTHER NOTED THAT THE INVESTIG ATION WING OF THE DEPARTMENT ISSUED LETTER TO MR. DILIP RAMNIKLAL MEHTA SEEKING AN EXPLANATION IN RESPECT OF THE BALANCE IN BANK ACCOUNT OF WHITE CEDAR INVESTME NT LTD. WITH HSBC BANK, GENEVA. MR. DILIP RAMNIKLAL MEHTA CLARIFIED THAT WH ITE CEDAR INVESTMENT LTD. IS AN INDEPENDENT INVESTMENT COMPANY WITH SEVERAL SUBS CRIBERS AND THE ESTATE OF LATE SHRI RAMNIKLAL R. MEHTA IS HAVING CORPUS OF 5. 73% OUT OF INVESTMENT MADE IN THE COMPANY OF USD 27,95,000 AND THE SOURCE OF SUCH INVESTMENT IS OUT OF WEALTH OF HIS LATER FATHER IN THE FORM OF NATURAL P EARLS AND RUBIES WHICH WERE KEPT WITH ONE MR. SULTANBHAI MEHERALI IN DUBAI, UAE. AS PER HIS FATHER WISHES, HE HAD INSTRUCTED SULTANBHAIS SUN-IN-LAW TO SELL THE SAID JEWELLERY AND REMIT THE FUNDS TO WHITE CEDAR INVESTMENTS LTD.. FOR THIS PUR POSE, HE ALSO PRODUCED LETTER DATED 27/12/2011 FROM MOHAMMADALI HASSANALI CONFIRM ING THIS FACT. MR. DILIP RAMNIKLAL R. MEHTA FURTHER CLARIFIED THAT MR. ARUNK UMAR R. MEHTA HAS NEVER VISITED NOR MAINTAINED OR OPERATED ANY ACCOUNT WITH HSBC BANK, GENEVA IN THE NAME OF WHITE CEDAR INVESTMENT LTD. 27. THE PROVISIONS OF SECTION 69A OF THE ACT, DEALS WITH THE CASES WHERE IN ANY FINANCIAL YEAR, THE ASSESSEE IS FOUND TO BE OWNER O F ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLAN ATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE, OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINI ON OF THE ASSESSING OFFICER, SATISFACTORY, THE MONEY AND THE VALUE OF THE BULLIO N, JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF THE ASSES SEE FOR SUCH FINANCIAL YEAR. FOR INVOKING THE PROVISIONS OF 69A OF THE ACT, THE ASSESSEE MUST BE FOUND TO BE THE OWNER OF THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE. IN THE PRESENT CASE, ON PERUSAL OF FACTS, WE FIND THAT THE RE IS NOTHING TO INDICATE THAT THE ASSESSEE IS THE OWNER OF BANK ACCOUNT OPERATED AND MAINTAINED IN THE NAME OF WHITE CEDAR INVESTMENT LTD. AND RUBY ENTERP RISES INC. THE ASSESSEE HAD DENIED HAVING ANY BANK ACCOUNT WITH HSBC BANK, GENEVA. THE ASSESSEE HAD SUBMITTED A LETTER FROM HSBC BANK, GENEVA STATI NG THAT HE HAS NEITHER VISITED NOR OPENED AND OPERATED ANY BANK ACCOUNT AN D THAT NO PAYMENTS HAVE BEEN RECEIVED OR MADE IN RELATION TO THE SAID ACCOU NT. THE SAID UNDISPUTED FACT THAT THE ACCOUNT IS OF M/S RUBY ENTERPRISES INC. WI TH HSBC BANK, GENEVA, LEADS TO THE POSITIVE INFERENCE THAT THE ASSESSEE IS NOT OWNER OF THE BANK ACCOUNT AND THEREFORE ADDITION MADE U/S 69A IS NOT SUSTAINABLE. IN ORDER TO BRING ANY MONEY, BULLION JEWELLERY OR ANY OTHER ASSET, WITHIN THE AM BIT OF SECTION 69A OF THE ACT, OWNERSHIP IS A SINE-QUA-NON THAT THE ASSESSEE MUST BE FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLES AND THE ONUS OF PROVING THIS LIES ON THE DEPARTMENT. THIS LEGAL PROPOSITION HAS BEEN LAID DOWN BY HONBLE SUPREME COURT IN THE CASE OF CIT VS K. CHIN NATHAMBAN (2007) 162 TAXMAN 459(SC), WHERE IT WAS HELD THAT WHERE A DEPO SIT STANDS IN THE NAME OF A THIRD PERSON AND WHERE THAT PERSON IS RELATED TO TH E ASSESSEE, THEN IN SUCH A ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 18 CASE THE PROPER COURSE WOULD BE TO CALL UPON THE PE RSON IN WHOSE BOOKS THE DEPOSIT APPEARS OR THE PERSON IN WHOSE NAME THE DEP OSIT STANDS SHOULD BE CALLED UPON TO EXPLAIN SUCH DEPOSIT. THIS LEGAL PRO POSITION IS FURTHER SUPPORTED BY THE DECISION OF HONBLE CALCUTTA HIGH COURT IN T HE CASE OF DURGA KAMAL RICE MILLS VS CIT (2003) 130 TAXMAN 553 (CAL.) WHERE IT WAS HELD THAT THERE IS NOTHING TO SHOW THAT THE LEARNED TRIBUNAL HAS EVER COME TO ANY CONCLUSION THAT THE ASSESSEE OWNED THIS AMOUNT. EVEN THEN, IN THIS CASE ONCE IT HAD ADDED TO THE INCOME OF THE ASSESSEE AND THEN AGAIN THE SAME AMOU NT HAS BEEN ACCEPTED AS INCOME OF THE PARTNERS IN THEIR REVISED RETURN, THE INCOME-TAX AUTHORITY IS PRECLUDED FROM CONTENDING THAT THE ASSESSEE IS THE OWNER OF THE AMOUNT OR INCOME. FURTHER, THE HONBLE SUPREME COURT IN THE C ASE OF R.B. JODHA MAL KUTHIALA VS CIT (1971 SCC (3) 369) HAD EXPLAINED TH E MEANING OF TERM OWNER WHICH READS AS UNDER:- 9. THE QUESTION IS WHO IS THE 'OWNER' REFERRED TO IN THIS SECTION? IS IT THE PERSON IN, WHOM THE PROPERTY VESTS OR IS IT HE WHO IS ENTI TLED TO SOME BENEFICIAL INTEREST IN THE PROPERTY IT MUST BE REMEMBERED THAT S. 9 BRI NGS TO TAX THE INCOME FROM PROPERTY AND NOT THE INTEREST OF A PERSON IN THE PR OPERTY. A PROPERTY CANNOT HE OWNED BY TWO PERSONS, EACH ONE HAVING INDEPENDENT A ND EXCLUSIVE RIGHT OVER IT. HENCE FOR THE PURPOSE OF S. 9, THE OWNER MUST HE TH AT PERSON WHO CAN EXERCISE THE RIGHTS OF THE OWNER, NOT ON BEHALF OF THE OWNER BUT IN HIS OWN RIGHT. 17. ... IT IS NOT NECESSARY FOR OUR PRESENT PURPOSE TO EXAMINE WH AT THE WORD 'OWNER' MEANS IN DIFFERENT CONTEXTS. THE MEANING THAT WE GIVE TO THE WORD ' OWNER' IN S. 9 MUST NOT BE SUCH AS TO MAKE THAT PROVISION CAPABLE OF BE ING MADE AN INSTRUMENT OF OPPRESSION, MUST BE IN CONSONANCE WITH THE PRINCIPL ES UNDERLYING THE ACT. 28. FROM THE ABOVE DECISIONS OF THE COURTS, IT WAS ABUNDANTLY CLEAR THAT IN ORDER TO BRING ANY MONEY OR ASSET OR VALUABLE ARTICLES WI THIN THE AMBIT OF SECTION 69A, THE REVENUE MUST PROVE THAT THE ASSESSEE IS OWNER O F THE ASSET OR VALUE ARTICLES. UNLESS THE REVENUE PROVES WITH NECESSARY MATERIAL THAT THE ASSET IS BELONG TO THE ASSESSEE OR THE ASSESSEE IS BENEFICIA L OWNER OF SUCH ASSET, THEN THE PROVISIONS OF SECTION 69A OF THE ACT CANNOT BE INVOKED. IT IS WELL SETTLED THAT A CHARGING PROVISION UNDER A TAXING STATUTE MUST BE STRICTLY INTERPRETED AND THERE CAN BE NO IMPOSITION OF TAX BY IMPLICATION. EVEN ST RICT INTERPRETATION OF PROVISIONS OF SECTION 69A OF THE ACT, IT IS VERY MUCH CLEAR T HAT IN ORDER TO PROVE ANY MONEY OR ASSET WITHIN THE AMBIT OF SECTION 69A , THE REVE NUE MUST PROVED BEYOND THE DOUBT THAT THE ASSESSEE IS OWNER OF SUCH ASSETS OR VALUABLE ARTICLES. THIS LEGAL PROPOSITION IS FURTHER SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF WEALTH TAX VS ELLIS BRI DGE GYMKHANA [(1998) 1 SCC 384]. FURTHER THE ONUS TO PROVE IS FULLY LIES O N THE DEPARTMENT. THE DEPARTMENT CANNOT BE ASKED THE ASSESSEE TO PROVE NE GATIVE. THE DEPARTMENT CANNOT FORCE IMPOSSIBLE BURDEN OF PROVING NEGATIVE ON THE ASSESSEE. THIS LEGAL PROPOSITION IS REITERATED BY HONBLE SUPREME COURT IN THE CASE OF K.P. VARGHESE VS ITO [(1981) 4 SCC 137] WHERE IT WAS HELD THAT MO REOVER TO THROW THE BURDEN OF SHOWING THAT THERE IS NO UNDERSTATEMENT OF THE C ONSIDERATION, ON THE RESPONDENT WOULD BE ATTACHED AND ALMOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH THE NEGATIVE, NAMELY, THAT HE DID NOT REC EIVE ANY CONSIDERATION BEYOND THAT DECLARED BY HIM. 29. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTAN CES OF THE CASE AND ALSO BY FOLLOWING JUDICIAL PRECEDENCE DISCUSSED HEREINABOVE , WE ARE OF THE CONSIDERED VIEW THAT THE AO HAS MADE ADDITIONS TOWARD PEAK BAL ANCE LYING IN HSBC BANK ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 19 ACCOUNT, GENEVA MENTIONED IN THE NAME OF RUBY ENTER PRISES INC. AND WHITE CEDAR INVESTMENT LTD. IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED INCOME U/S 69A OF THE ACT, PURELY ON SUSPICIOUS AND SURMISES M ANNER WITHOUT THERE BEING ANY MATERIAL IN HIS POSSESSION TO PROVE THAT THE AS SESSEE IS OWNER OF THE BANK ACCOUNT OR HAVING BENEFICIAL INTEREST IN THOSE BANK ACCOUNTS. WE FURTHER NOTED THAT SOLE BASIS FOR ADDITION IS BASE NOTE RECEIVED FROM THE FRENCH GOVERNMENT BUT WHICH IS AN UNAUTHENTICATED DOCUMENT NOT RECEI VED FROM THE BANK DIRECTLY. ALTHOUGH, INFORMATION EXCHANGED BETWEEN TWO SOVEREI GN COUNTRIES, CANNOT BE IGNORED, BUT THE CONTENTS, OF BASE NOTE IS INCOMPLE TE WHICH IS NOT FULLY THROW ANY LIGHT ON THE FACT OF ANY UNDISCLOSED BANK ACCOU NT IN THE NAME OF THE ASSESSEE IN HSBC BANK ACCOUNT GENEVA. THE ASSESSEE, ALL ALONG DENIED HAVING ANY BANK ACCOUNT IN HSBC BANK GENEVA IN THE NAME OF WHITE CEDAR INVESTMENT LTD. AND RUBY ENTERPRISES INC. THIS FACT HAS BEEN FURTHER STRENGTHENED BY FILING A LETTER FROM HSBC BANK, GEN EVA, WHERE IT WAS STATED THAT THE ASSESSEE NEITHER VISITED NOR OPENED OR OPE RATED ANY BANK ACCOUNT IN HSBC BANK GENEVA IN THE NAME OF WHITE CEDAR INVESTM ENT LTD. THIS FACT HAS FURTHER STRENGTHENED BY THE FACT THAT MR. DILIP RAM NIKLAL MEHTA IN HIS STATEMENT RECORDED U/S 131 HAD EXPLAINED THE NATURE AND SOURC E OF MONEY LYING IN THE BANK ACCOUNT OF WHITE CEDAR INVESTMENT LTD. HE HAD ALSO EXPLAINED THE SOURCE WITH NECESSARY EVIDENCES. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE AO WAS ERRED IN MAKING ADDITIONS TOWARDS PEAK BALANCE LYING IN THE HSBC BANK ACCOUNT IN THE NAME OF WHITE CEDAR INVESTMENT LTD. AND RUBY ENTERPRISES INC. IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED MONEY U /S 69A OF THE ACT. THE LD. CIT(A) ALTHOUGH DELETED ADDITIONS MADE BY THE AO TO WARDS PEAK BALANCE IN HSBC BANK, GENEVA IN THE NAME OF WHITE CEDAR INVEST MENT LTD., BUT THE LD. CIT(A) DELETED SUCH ADDITION ON THE GROUND THAT A S IMILAR ADDITION HAS BEEN MADE IN THE HANDS OF ESTATE OF LATE SHRI RAMNIKLAL R MEHTA WITHOUT CONSIDERING THE ARGUMENTS OF THE ASSESSEE THAT THE ACCOUNT IS N EITHER BELONGS TO HIM NOR HE IS HAVING ANY BENEFICIAL INTEREST IN THOSE BANK ACC OUNTS. WE, THEREFORE, ARE OF THE OPINION THAT THE ASSESSEE IS NEITHER OWNER OF B ANK ACCOUNT NOR HAD ANY BENEFICIAL INTEREST IN THOSE BANK ACCOUNTS AND HENC E, THE SAME CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED M ONEY U/S 69A OF THE ACT. HENCE, WE DIRECT THE AO TO DELETE ADDITIONS MADE U/ S 69A OF THE ACT, TOWARDS PEAK BALANCE LYING IN RUBY ENTERPRISES INC. AND THA T OF WHITE CEDAR INVESTMENT LTD. IN THE HANDS OF THE ASSESSEE. 7. IN THIS VIEW OF THE MATTER AND CONSIST WITH VIEW TAKEN BY THE CO- ORDINATE BENCH IN ASSESSEE OWN CASE FOR AY 2006-07, WE ARE OF THE CONSIDERED VIEW THAT THE AO WAS ERRED IN MAKING ADD ITIONS TOWARDS BALANCE IN HSBC BANK ACCOUNT, GENEVA IN THE NAME OF WHITE CEDAR INVESTMENTS LTD. AND RUBY ENTERPRISES INC., IN THE HANDS OF THE ASSESEE U/S 69A OF THE I.T.ACT, 1961. THE LD. CIT(A ) AFTER ITA NO.2477/MUM/2018 ARUN KUMAR R. MEHTA 20 CONSIDERING RELEVANT FACTS HAS RIGHTLY DELETED ADDI TIONS MADE BY THE AO. HENCE, WE ARE INCLINED TO UPHOLD ORDER OF THE L D.CIT(A) AND DELETED ADDITIONS MADE BY THE AO TOWARDS BALANCE IN HSBC BANK, GENEVA, IN THE NAME OF WHITE CEDAR INVESTMENTS LTD. AND RUBY ENTERPRISES INC. IN THE HANDS OF THE ASSESEE U/S 69 A OF THE I.T.ACT, 1961 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 /09/ 2019 SD/- (RAM LAL NEGI) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 06 /09/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//