RAJENDRA LADAKCHAND JAIN, MUMBAI V. DCIT , CC -1 (3), MUMBAI

ITA 2825/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6292 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATH SWAMI
• Keywords: Search and seizure; Retraction; Documents seized; Set aside
• Section: 143(3); 133A; 131; 132

Judgement Text

P A G E | 1 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NOS.2825 & 2827/MUM/2018 (ASSESSMENT YEARS: 2010 - 11 & 2012 - 13 ) RAJENDRA LADAKCHAND JAIN 9 TH FLO O R , NOVELTY CHAMBERS, M.S. ROAD, GRANT ROAD, MUMBAI - 400 007 VS. DCIT, CENTRAL CIRCLE - 1(3) 905, PRATISHTHA BHAVAN, 9 TH FLOOR , M.K. ROAD, MUMBAI - 400 020 PAN AAIPJ2441G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJESH SHAH , A.R RESPONDENT BY: SHRI MANJUNATH SWAMI , CIT D.R DATE OF HEARING: 18.07.2019 DATE OF PRONOUNCEMENT: 2 6 .07.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 47, MUMBAI FOR A.Y. 2010 - 11 & A.Y. 2012 - 13, BOTH DATED 27.03.2018, WHICH IN TURN ARISES FROM THE RESPECTIVE ASSESSMENT ORDERS PASSED BY THE A.O UNDER SEC.153 C R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED 31.03.2016 FOR THE AFOREMENTIONED YEARS. AS A COMMON ISSUE IS INVOLVED IN THE AFOREMENTIONED APPEALS, THEREFORE, WE SHALL TAKE UP AND DISPOSE OFF THE SAME BY WAY OF A CONSOLIDATED ORDER. WE SHALL FIRST ADVERT TO THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2010 - 11. THE ASSESSEE HA S ASSAILED THE IMPUGNED ORDER ON THE FOLLOWING GROUND S OF APPEAL: 1. THE ASSESSEE IS INDIVIDUAL AND F I LING REGULAR RETURN OF INCOME. THE SURVEY ACTION WAS INITIATED ON NAKODA FLO O R MILLS PVT. LTD., WHICH P A G E | 2 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) WAS THE RESIDENCE OF THE ASSESSEE AND FOR WHICH NECESSARY DOCUMENTS WERE ALSO FILED DURING THE ASSESSMENT PROCEEDINGS BEFORE LD. AO AS WELL AS IN FIRST APPELLANT PROCEEDINGS BEFORE LD. CIT (A) - 47. IT IS WELL SETTLED LAW THAT SURVEY ACTION CANNOT BE INITIATED AT RESIDENTIAL PREMISES. IN VIEW OF THE SAME THE SURVEY ACTION IS ILLEGAL. 2. THE LD. AO HAS ISSUED NOTICE U/S 153C OF THE ACT WITHOUT ANY PROPER AND LEGAL SATISFACTION. 3. THE ASSESSEE PRA Y S FOR SET ASIDE THE ORDER PASSED BY LD. CIT(A) AS WELL AS OF LD. AO. 2. BRIEFLY STATED, THE ASSESSEE WHO IS A DIRECTOR IN A COMPANY VIZ. M/S NAKODA FLO O R MILLS PVT. LTD. AND ALSO ENGAGED IN THE BUSINESS OF TRADING IN TILES / CER A MICS HAD FILED HIS RETURN OF INCOME FOR A.Y. 2010 - 11 ON 25.09.2010, DECLARING HIS TOTAL INCOME AT RS.14,98,850/ - . IN CONNECTION WITH SEARCH AND SEIZURE PROCEEDINGS CONDUCTED ON SHRI. BHANWARLAL JAIN AND HIS GROUP ENTITIES , ONE OF THE CONCERN REP ORTEDLY MANAGED AND CONTROLLED BY SHRI BHANWARLAL JAIN AND SHRI RAJESH BHANWARLAL JAIN NAMELY, M/S NAKODA FLO O R MILLS PVT. LTD. HAVING ITS REGISTERED OFFICE AT 9 TH FLOUR , NOVELTY CHAMBER, MUMBAI , WAS ALSO COVERED BY THE I NVESTIGATION WING, MUMBAI UNDER SEC.133A OF THE ACT. THE AFORESAID PREMISES WERE FOUND TO BE INHABITED BY THE ASSESSEE I.E SHRI RAJESH LADAKCHAND JAIN, WHO WAS ONE OF THE DIRECTOR IN THE AFORESAID COMPANY VIZ. M/S NAKODA FLO O R MILLS PVT. LTD. , ALONG WITH S/SH. BHANWARLAL JAIN & RAJESH BHANWARLAL JAIN AS THE OTHER TWO DIRECTORS. 3. DURING THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED UNDER SEC. 133 A ON M/S NAKODA FLO O R MILLS PVT. LTD., A BLUE COLOURED DIARY WAS FOUND AND IMPOUNDED AS ANNEXURE A1 PAGE 1 - 31 . THE SAID DIARY CONTAINED THE DETAILS OF CASH LOANS ADVANCED AND RECEIVED BACK BY THE ASSESSEE IN HIS INDIVIDUAL CAPACITY THROUGH VARIOUS CONCE RN S OPERATED AND MANAGED BY HIM. IN HIS STATEMENT RECORDED UNDER SEC.131 ON 03.10.2013, THE ASSESSEE ADMITTED THAT THE SAID DIARY WAS FOUND FROM HIS PREMISES. FURTHER, IT WAS ADMITTED BY THE ASSESSEE THAT THE DIARY CONTAINED THE DETAILS OF CASH LOAN S GIVE N AND RECEIVED P A G E | 3 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) BACK ON DIFFERENT DATES TO/ FROM VARIOUS PARTIES. IT WAS ALSO ADMITTED BY THE ASSESSEE THAT THE CASH LOAN S GIVEN AND TAKEN MENTIONED IN THE AFORESAID DIARY WERE N EITHER REFLECTED IN HIS PERSONAL BOOKS OF ACCOUNTS OR THAT OF ANY OF THE CONCERN S IN WHICH HE WAS A DIRECTOR/PARTNER/PROPRIETOR. AS REGARDS THE CLAIM OF THE ASSESSEE THAT CERTAIN LOANS HAD BEEN ADVANCED BY HIM THROUGH CHEQUES, IT WAS OBSERVED BY THE INVESTIGATION WING OF THE DEPARTMENT THAT SUCH LOAN ENTRIES WHICH WERE PROVIDED BY THE ASSESSEE VIDE CHEQUES/RTGS WERE IN LIEU OF RECEIPT OF CASH AS AGAINST THE SAME. AFTER THE SURVEY PROCEEDINGS , THE ASSESSEE HAD ONCE AGAIN IN HIS STATEMENT RECORDED UNDER SEC.131 ON 27.01.2014 REAFFIRMED THAT THE BLUE COLOURED DIARY THAT WAS IMPOUNDED DU RING THE COURSE OF THE SURVEY PROCEEDINGS CONTAINED THE DETAILS FOR CASH LOAN S WHICH WERE ADVANCED BY HIM IN HIS PERSONAL CAPACITY. ON THE BASIS OF THE AFORESAID FACTS, THE A.O WORKED OUT THE PEAK AMOUNT OF CASH LOANS ADVANCED BY THE ASSESSEE DURING THE YE AR UNDER CONSIDERATION VIZ. A.Y. 2010 - 11 AT RS.62,00,000/ - , AND CALLED UPON HIM TO EXPLAIN AS TO WHY THE SAME MAY NOT BE ADDED TO HIS TOTAL INCOME . IN REPLY, THE ASSESSEE RAISED MULTIPLE OBJECTIONS AS REGARDS THE ADDITION OF RS.62,00,000/ - THAT WAS PROPOS ED BY THE A.O. ALSO, THE ASSESSEE OBJECTED TO THE ISSUANCE OF THE NOTICE UNDER SEC.153C OF THE ACT. APART THERE FROM, THE ASSESSEE ALSO FILED AN AFFIDAVIT WHEREIN HE RETRACT ED FROM HIS STATEMENT THAT WAS RECORDED DURING THE COURSE OF THE SURVEY ACTION ON 03.10.2013 AND THEREAFTER AS ON 27.01.2014. HOWEVER, THE A.O HOLDING A CONVICTION THAT THE RETRACTION FILED BY THE ASSESSEE WAS A RESULT OF AN AFTERTHOUGHT AND WAS A TUTORED STATEMENT, THEREFORE, HE DECLINED TO ACCEPT THE SAME. IT WAS OBSERVED BY THE A.O T HAT THE RETRACTION OF THE ASSESSEE WAS NOT SUPPORTED BY ANY INDEPENDENT OR RELIABLE EVIDENCE TO PROVE THE INCORRECT NATURE OF THE FACT S WHICH WERE CONFESSED BY HIM IN HIS STATEMENT S THAT W ERE RECORDED UNDER SEC. 131 OF THE ACT. IN FACT, IT P A G E | 4 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) WAS NOTICED BY T HE A.O THAT THE FACTS STATED BY THE ASSESSEE IN HIS AFORESAID STATEMENTS WERE CORROBORATED BY THE INCRIMINATING MATERIAL IN THE FORM OF THE BLUE COLOURED DIARY THAT WAS FOUND AND IMPOUNDED AS ANNEXURE A1 PAGE 1 - 3 1 IN THE COURSE OF THE SURVEY PROCEEDINGS. ACCORDINGLY, THE A.O WAS NOT INCLINED TO ACCEPT THE CONTENTION ADVANCED BY THE ASSESSEE , AND ADDED THE PEAK AMOUNT OF UNDISCLOSED CASH LOANS OF RS.62,00,000/ - TO THE RETURNED INCOME OF THE ASSESSEE FOR THE YEAR UND ER CONSIDERATION. ON THE BASIS OF HIS AFORESAID DELIBERATIONS THE A.O ASSESSED THE INCOME OF THE ASSESSEE AT RS.76,98,850/ - . 4. AGGRIEVED, THE ASSESSEE ASSAILED THE ASSESSMENT ORDER IN APPEAL BEFORE THE CIT(A). HOWEVER, THE CIT(A) NOT BEING PERSUADED TO SU BSCRIBE TO THE CONTENTION S ADVANCED BY THE ASSESSEE PARTLY ALLOWED THE APPEAL FOR STATISTICAL PURPOSES. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER PASSED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE , AT THE VERY OUTSET OF THE HEARING OF THE APPEAL ASSAILED THE VALIDITY OF JURISDICTION ASSUMED BY THE A.O FOR FRAMING OF THE ASSESSMENT UNDER SEC.153C R.W.S 143(3), DATED 31.03.2016. THE LD. A.R CONFINING HIMSELF TO THE VALIDI TY OF THE ASSESSMENT FRAMED BY THE A.O UNDER SEC.153C R.W.S. 143(3) , DATED 31.03.2016 SUBMITTED, THAT AS THE ASSESSMENT WAS FRAMED ON THE BASIS OF INCRIMINATING MATERIAL I.E A BLUE COLOURED DIARY THAT WAS FOUND AND IMPOUNDED AS ANNEXURE A1 PAGE 1 - 31 IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED ON M/S NAKODA FLO O R MILLS PVT. LTD., THEREFORE, THE SAID ASSESSMENT WAS INVALID AND UNSUSTAINABLE IN THE EYES OF LAW. IT WAS AVERRED BY THE LD. A.R THAT ASSESSMENT UNDER SEC.153C CAN BE FRAMED ONLY WHERE T HE A.O IS SATISFIED THAT VIZ. (A) ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THING, SEIZED IN THE P A G E | 5 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) COURSE OF SEARCH PROCEEDINGS CONDUCTED U/S 132 OR REQUISITIONED U/S 132A OF THE ACT , BELONGS TO ; OR (B) ANY BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED I N THE COURSE OF THE SEARCH PROCEEDINGS CONDUCTED U/S 132 OR REQUISITIONED U/S 132A PERTAINS OR PERTAIN TO OR ANY INFORMATION CONTAINED THEREIN, RELATES TO , A PERSON OTHER THAN THE PERSON REFERRED TO IN SEC.153A OF THE ACT. ACCORDINGLY, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE BLUE COLOURED DIARY IN THE CASE OF THE PRESENT ASSESSEE WAS FOUND AND IMPOUNDED AS ANNEXURE A1 PAGE 1 - 31 IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED UNDER SEC.133A ON M/S NAKODA FLO O R MILLS PVT. LTD. , THEREFORE, THE A.O H AD GRAVELY ERRED IN LAW IN FRAMING THE ASSESSMENT UNDER SEC.153C R.W.S 143(3), DATED 31.03.2016. IN SUM AND SUBSTANCE, IT WAS THE CONTENTION OF THE LD. A.R THAT AS A DOCUMENT IMPOUNDED IN THE COURSE OF THE SURVEY CONDUCTED UNDER SEC. 133A WOULD NOT CONFER JURISDICTION ON THE A.O TO FRAME AN ASSESSMENT UNDER SEC.153C OF THE ACT , THEREFORE, THE ASSESSMENT SO FRAMED UNDER THE SAID STATUTORY PROVISION IN THE CASE OF THE PRESENT ASSESSEE WAS BEREFT OF ANY FORCE OF LAW AND WAS LIABLE TO BE QUASHED ON THE SAID COU NT ITSELF. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD. D.R THAT THOUGH THE BLUE COLOURED DIARY WAS FOUND AND IMPOUNDED IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED UNDER SEC.133A ON M/S NAKODA FLO O R MILLS PVT. LTD., HOWEVER, AS SIMULTANEOUSLY SEARCH PROCEEDINGS WERE CARRIED OUT ON THE OTHER TWO DIRECTORS OF THE AFORESAID COMPANY I.E S/ S H. BHAN WARLAL JAIN & RAJESH BHANWARLAL JAIN, THEREFORE, THE A.O HAD RIGHTLY ASSUME D JURISDICTION AND FRAMED THE ASSESSMENT UNDER SEC.153C R.W.S 143(3) OF THE ACT. 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOW ER AUTHORITIES AND THE MATERIAL P A G E | 6 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) AVAILABLE ON RECORD. WE FIND THAT OUR INDULGENCE IN THE PRESENT APPEAL HAS BEEN SOUGHT BY THE ASSESSEE TO ADJUDICATE UPON THE VALIDITY OF THE ASSESSMENT FRAMED BY THE A.O UNDER SEC.153C R.W.S 143(3), DATED 31.03.2016. ADMITT EDLY, AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, THE A.O HAD ASSUMED JURISDICTION AND FRAMED THE ASSESSMENT UNDER SEC. 153C ON THE BASIS OF THE INCRIMINATING MATERIAL I.E A BLUE COLOURED DIARY THAT WAS FOUND AND IMPOUNDED DURING THE COUR SE OF THE SURVEY PROCEEDINGS CONDUCTED UNDER SEC.133A ON M/S NAKODA FLO O R MILLS PVT. LTD. IT IS UNDISPUTED BY THE REVENUE THAT THE AFORESAID INCRIMINATING DOCUMENT VIZ. BLUE COLOURED DIARY , WHICH THEREAFTER HAD BEEN MARKED AS ANNEXURE A1 PAGE 1 - 31 WAS FOUND AND IMPOUNDED DURING THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED ON M/S NAKODA FLO O R MILLS PVT. LTD. AT 9 TH FLOUR , NOVELTY CHAMBER, MUMBAI. IN OUR CONSIDERED VIEW, DOCUMENTS FOUND AND IMPOUNDED IN THE COURSE OF THE SURVEY ACTION CANNOT CONFER JURISDICTION ON THE A.O TO FRAME AN ASSESSMENT UNDER SEC.153C OF THE ACT. AS IS DISCERNIBLE FROM A PERUSAL OF SEC.153C OF THE ACT, IT IS ONLY WHERE IN A CASE A SEARCH INITIATED UNDER SEC.132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS ARE REQUISITIONED UNDER SEC.132A, THAT THE ASSESSING OFFICER IS SATISFIED THAT VIZ. ( A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO ; OR (B) ANY BOOKS OF ACCOUNTS OR DOCUMENT S, SEIZED OR REQUISITIONED, PERTAINS OR PER TAIN TO OR ANY INFORMATION CONTAINED THEREIN RELATES TO A PERSON OTHER THAN THE PERSON REFER RED TO IN SEC.153A, THEN THE BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVE R SUCH OTHER PERSON , AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS HIS I NCOME IN ACCORDANCE WITH THE PROVISIONS OF SEC.153A, AND THAT TOO IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE P A G E | 7 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) B OOKS OF ACCOUNT OR DOCUMENT S OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PERSON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB - SECTION (1) OF SEC. 153A. . ACCORDINGLY, IN THE CASE B EFORE US, AS THE BLUE COLOURED DIARY WAS NEITHER SEIZED IN THE COURSE OF ANY SEARCH PROCEEDINGS INITIATED UNDER SEC.132 NOR WAS REQUISITIONED UNDER SEC. 132A, BUT WAS IN FACT ADMITTEDLY IMPOUNDED IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED UNDER SE C.133A ON M/S NAKODA FLO O R MILLS PVT. LTD. , THEREFORE, AS PER THE MANDATE OF LAW , THE A.O WAS DIVESTED OF ASSUMING JURISDICTION AND FRAMING OF AN ASSESSMENT UNDER SEC.153C R.W.S 143(3) ON THE BASIS OF THE SAME. WE THUS BEING OF THE CONSIDERED VIEW THAT AS THE A.O HAD BLATANTLY EXCEEDED HIS JURISDICTION AND FRAMED THE AFORESAID ASSESSMENT UNDER SEC.153C R.W.S 143(3) , DATED 31.03.2016, THEREFORE, THE SAME CANNOT BE SUSTAINED AND IS LIABLE TO BE STRUCK DOWN ON THE GR OUND OF INVALID ASSUMPTION OF JURISDICTION ON HIS PART ITSELF . IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS WE QUASH THE ASSESSMENT FRAMED BY THE A.O UNDER SEC.153C R.W.S 143(3), DATED 31.03.2016. AS WE HAVE QUASHED THE ASSESSMENT ON ACCOUNT OF WANT OF JU RISDICTION, THEREFORE, WE REFRAIN FROM ADVERTING TO AND THEREIN ADJUDICATING THE OTHER GROUNDS RAISED BY THE ASSESSEE, WHICH THUS ARE LEFT OPEN. 8. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ITA NO. 2827/MUM/ 2018 A.Y. 2012 - 13 9. WE SHALL NOW ADVERT TO THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2012 - 13. THE ASSESSEE HAS ASSAILED THE ORDER OF THE CIT(A) - 47, MUMBAI, DATED 27.03.2018 , WHICH IN TURN ARISES FROM THE ASSESSMENT P A G E | 8 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) FRAMED BY THE A.O UNDER SEC. 153C R.W.S 143(3), DATED 31.03.2016 BY RAISING BEFORE US THE FOLLOWING GROUNDS OF APPEAL: 1. THE ASSESSEE IS INDIVIDUAL AND FILING REGULAR RETURN OF INCOME. THE SURVEY ACTION WAS INITIATED ON NAKODA FLO O R MILLS PVT. LTD., WHICH WAS THE RESIDENCE OF THE ASSESSEE AND FOR WHICH NECESSARY DOCUMENTS WERE ALSO FILED DURING THE ASSESSMENT PROCEEDINGS BEFORE LD. AO AS WELL AS IN FIRST APPELLANT PROCEEDINGS BEFORE LD. CIT (A) - 47. IT IS WELL SETTLED LAW THAT SURVEY ACTION CANNOT BE INITIATED AT RESIDENTIAL PREMISES. IN VIEW OF THE SAME THE SURVEY ACTION IS ILLEGAL. 2. THE LD. AO HAS ISSUED NOTICE U/S 153C OF THE ACT WITHOUT ANY PROPER AND LEGAL SATISFACTION. 3. THE ASSESSEE PRA Y S FOR SET ASIDE THE ORDER PASSED BY LD. CIT(A) AS WELL AS OF LD. AO. 10. BRIEFLY STATED, THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A. Y. 2012 - 13 ON 29.09.2012 , DECLARING HIS TOTAL INCOME AT RS.14,85,000/ - . ON THE BASIS OF THE CONTENTS OF A BLUE COLOURED DIARY THAT WAS FOUND AND IMP OUNDED AS ANNEXURE A1 PAGE 1 - 31 IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED ON M/S NAKODA FLO O R MILLS PVT. LTD., THE A.O CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY PEAK ADDITION OF THE UNACCOUNTED CASH LOAN TRANSACTIONS MAY NOT BE MADE IN ITS HA NDS. IN REPLY, THE ASSESSEE OBJECTED TO THE PROPOSED ADDITION. HOWEVER, THE A.O REJECT ED THE CONTENTIONS ADVANCED BY THE ASSESSEE BOTH IN RESPECT OF THE VALIDITY OF ASSUMPTION OF JURISDICTION AND ALSO ON MERITS, AND MADE AN ADDITION OF RS.4,03,73,139/ - T OWARDS PEAK AMOUNT OF UNDISCLOSED CASH LOAN , VIDE HIS ORDER PASSED UNDER SEC. 153C R.W.S 143(3), DATED 31.03.2016. 11. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER DELIBERATING ON THE CONTENTIONS ADVANCED BY THE ASSESSEE PARTLY ALLOWED THE APPEAL. 12. THE A SSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. T HE LD. AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES SUBMITTED , THAT THE FACTS AND THE P A G E | 9 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) ISSUE INVOLVED IN T HE PRESENT APPEAL TO THE EXTENT RELEVANT TO THE VALIDITY OF THE ASSESSMENT FRAMED BY THE A.O UNDER SEC. 153C R.W.S 143(3) ARE IDENTICAL TO THOSE WHICH WERE INVOLVED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2010 - 11 I.E RAJESH LADAKCHAND JAIN VS. DCIT, CC - 1(3) , MUMBAI (ITA NO.2825/MUM/2018 ). AS THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL ARE IDENTICAL TO THOSE AS WERE THERE BEFORE US IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE FOR A.Y. 2010 - 11, VIZ. ITA NO.2825/MUM/2018, THEREFORE, THE VIEW THEREIN TAKEN BY US SHALL APPLY MUTATIS MUTANDIS FOR THE PURPOSE OF DISPOSING THE PRESENT APPEAL FOR A.Y. 2012 - 13 IN ITA NO.2827/MUM/2018. ACCORDINGLY, IN TERMS OF OUR AFORESAID OBSERVATIONS THE ASSESSMENT FRAMED BY THE A.O UNDER SEC.153C R.W.S 143(3), DATED 31.03 .2016 IS QUASHED . 13. THE APPEAL OF THE ASSESSEE IS ALLOWED. 14. THE APPEALS OF THE ASSESSEE FOR A.Y. 2010 - 11, ITA NO. 2825/MUM/2018 AND A.Y. 2012 - 13, ITA NO. 2827/MUM/2018 ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED IN THE OPE N COURT ON 2 6 .07.2019 S D / - S D / - ( N.K.PRADHAN) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 26 .07.2019 *** P.S ROHIT P A G E | 10 ITA NOS.2825 & 2827/MUM/2018 A.YS. 2010 - 11 & 2012 - 13 RAJENDRALADAKCHAND JAIN VS. DCIT, CENTRAL CIRCLE - 1(3) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI