MURLIDHAR P.SUTRAVE, MUMBAI V. DCIT CEN CIR 24 & 26, MUMBAI

ITA 2987/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0319 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 17-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: I T A; N P SINGH CIT DR ITA TO MUM
• Assessee Lawyers: PARESH VAKHARIA
• Keywords: Gift; Search and seizure; Salary income; Retraction
• Section: 143(3); 142(1); 153A; 32; 132; 139

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 2987/ MUM/2015 ( / ASSESSMENT YEAR : 2006-07) ./ I.T.A. NO. 2988/ MUM/2015 ( / ASSESSMENT YEAR : 2007-08) ./ I.T.A. NO. 2989/ MUM/2015 ( / ASSESSMENT YEAR : 2008-09) ./ I.T.A. NO. 2990/ MUM/2015 ( / ASSESSMENT YEAR : 2009-10) ./ I.T.A. NO. 2991/ MUM/2015 ( / ASSESSMENT YEAR : 2010-11) MR. MURLIDHAR P. SUTRAVE, E-1603, XCLUSIVE, AKURLI ROAD, LOKHANDWALA COMPLEX, KANDIVALI (E), MUMBAI 400 101. / V. THE DCIT, CENTRAL CIRCLE 24 & 26, AAYKAR BHAVAN, MUMBAI. ./ PAN : ARRPS 1295H ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 2273/ MUM/2015 ( / ASSESSMENT YEAR : 2008-09) MRS JAYAMALA SUTRAVE, E-1603, XCLUSIVE, AKURLI ROAD, LOKHANDWALA COMPLEX, KANDIVALI (E), MUMBAI 400 101. / V. THE DCIT, CENTRAL CIRCLE 24 & 26, AAYKAR BHAVAN, MUMBAI. ./ PAN : AAZPN5847K ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI PARESH VAKHARIA REVENUE BY : SHRI N.P. SINGH, CIT - (DR) ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 2 / DATE OF HEARING : 18-05-2017 / DATE OF PRONOUNCEMENT : 16.08.2017 / O R D E R PER BENCH THESE ARE BUNCH OF SIX APPEALS PERTAINING TO TWO DI FFERENT ASSESSEES. OUT OF THESE SIX APPEALS, FIVE APPEALS ARE PERTAINI NG TO SAME ASSESSEE NAMELY MR. MURLIDHAR P. SUTRAVE BEING ITA NOS. 2987 TO 299 1/MUM/2015 FOR ASSESSMENT YEARS 2006-07 TO 2010-11 RESPECTIVELY AN D THE ANOTHER APPEAL IS PERTAINING TO THE ASSESSEE NAMELY MRS. JAYAMALA SUT RAVE BEING ITA NO. 2273/MUM/2015 FOR ASSESSMENT YEAR 2008-09 , WHICH A RE DIRECTED AGAINST SIX SEPARATE APPELLATE ORDERS; VIDE FIVE SEPARATE APPELLATE ORDERS (FOR AYS 2006-TO 2010-11) OF LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) (HEREINAFTER CALLED THE CIT(A)) ALL DATED 04-02 -2015 IN RESPECT OF THE ASSESSEE NAMELY MR. MURLIDHAR P. SUTRAVE AND THE SI XTH APPELLATE ORDER DATED 14-01-2015 (FOR A.Y. 2008-09) PASSED BY LEARN ED CIT(A), THE APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) HAS ARISEN OUT OF SIX DIFFERENT ASSESSMENT ORDERS, ALL DATED 25-03-2013 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE A.O) U/S 143(3) R.W.S. 15 3A OF THE INCOME-TAX ACT,1961( HEREINAFTER CALLED THE ACT) RESPECTIVEL Y . THE ISSUES INVOLVED IN THESE THREE APPEALS ARE COMMON; THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEES IN ALL THESE SIX APPEALS FOR ALL THE ASSESSMENT YEARS ARE COMMON (ONLY DIFFE RENCE IN AMOUNT) WHICH ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 3 READ AS UNDER. FIRST, WE SHALL TAKE UP APPEAL IN IT A NO. 2987/MUM/2015 FOR A.Y. 2006-07 IN THE CASE OF THE ASSESSEE NAMELY MR MURALIDHAR P. SUTRAVE: 1. VALIDITY OF SEARCH IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW: 1.1 THE LEARNED CIT(A) ERRED IN REJECTING THE APPEL LANT'S GROUND OF APPEAL THAT IN THE ABSENCE OF SATISFACTION OF IN GREDIENTS OF SEARCH PRESCRIBED UNDER SECTION 132(1) OF THE ACT; THE ASSESSMENT BE DECLARED WITHOUT JURISDICTION AND INVALID. 1.2 THE LEARNED CIT(A) FAILED TO TAKE NOTE OF THE I MPORTANT FACT THAT THE APPELLANT HAD SUBMITTED HERSELF TO THE ASS ESSMENT JURISDICTION UNDER PROTEST VIDE LETTER DATED 06-11- 2012. 1.3 THE LEARNED CIT(A) FAILED TO APPRECIATE THE RAT IO LAID DOWN BY THE HIGH COURTS IN VARIOUS CASE LAWS CITED BEFOR E HER WHEREIN THE RIGHT OF THE ASSESSEE TO CHALLENGE THE VALIDITY OF THE SEARCH BEFORE THE APPELLATE AUTHORITIES UNDER THE IT ACT H AS BEEN CONFIRMED. 1.4 THE LEARNED C!T(A) ERRED IN JUSTIFYING THE REJE CTION OF THE RIGHT OF CHALLENGE TO THE VALIDITY OF THE SEARCH BA SED ON THE REASONS UNACCEPTABLE IN LAW. 1.5 CONSEQUENT UPON THE FOREGOING, THE LEARNED C!T( A) FAILED TO APPRECIATE THAT THE ASSESSED INCOME OUGHT TO HAVE B EEN RESTRICTED TO THE INCOME OF RS 3,12,232/- AS DECLAR ED VIDE RETURN OF INCOME FILED ON 01-11-2006. ALTERNATIVE GROUND IN THE FACTS OF THE CASE AND IN LAW, THE LEARNED CI T(A) FAILED TO APPRECIATE THE CHALLENGE TO THE SUBJECT WISE JURISD ICTION OF THE AO TO CONDUCT THE ASSESSMENT FOR THE ASSESSMENT YEAR U NDER CONSIDERATION IN SPITE OF THE FACT THAT THE APPELLA NT VIDE HER LETTER 06-11-2012 SUBMITTED HIMSELF TO THE ASSESSMENT JURI SDICTION SUBJECT TO THE PROTEST AS TO INVALIDITY OF THE ASSE SSMENT PROCEEDINGS IN VIEW OF THERE BEING NO INCRIMINATING MATERIAL FOUND IN THE SEARCH ACTION U/S 132(1) READ WITH THE FACT THAT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSM ENT HAD ATTAINED THE FINALITY, AS LAID DOWN BY THE HON'BLE JURISDICTIONAL ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 4 BOMBAY HIGH COURT IN THE CASE OF CIT V/S MURLI AGRO PRODUCTS LTD. (ITA NO. 36 OF 2009). CONSEQUENT UPON THE FOREGOING, THE LEARNED CIT(A) F AILED TO APPRECIATE THAT THE ASSESSED INCOME OUGHT TO HAVE B EEN RESTRICTED TO THE INCOME OF RS 3,12,232/- AS DECLAR ED VIDE RETURN OF INCOME FILED ON 01.11.2006. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS DIRECTOR OF PGA SHIPPING & LOGISTICS PVT. LTD. . A SEARCH OPERATION U/S. 132 OF THE 1961 ACT WAS CONDUCTED BY REVENUE ON 11 TH FEBRUARY, 2011 IN TRANSWORLD FURTICHEM PVT. LTD. GROUP OF CASES. THE ASSESSEE WAS, INTER A LIA, COVERED IN THE SEARCH OPERATIONS CONDUCTED BY REVENUE U/S 132(1) OF THE 1 961 ACT. THE ASSESSEE HAD ORIGINALLY FILED HIS RETURN OF INCOME U/S 139(1 ) OF THE 1961 ACT ON 1ST NOVEMBER, 2006 DECLARING TOTAL INCOME OF RS. 3,12,2 30/-. NOTICE DATED 15.02.2012 U/S 153A OF THE 1961 ACT WAS ISSUED AND SERVED UPON THE ASSESSEE BY THE AO , ASKING THE ASSESSEE TO FILE RE TURN OF INCOME FOR A.Y. 2006-07. IN RESPONSE TO THE AFORESAID NOTICE U/S 1 53A OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME FOR A.Y. 2006-07 ON 7 TH NOVEMBER, 2012 , DECLARING TOTAL INCOME AT RS. 8,30,318/-. THE ASSE SSEE HAD SHOWN OTHER INCOME OF RS. 5,16,485/- UNDER THE HEAD INCOME FRO M OTHER SOURCES IN THE COMPUTATION OF TOTAL INCOME FILED IN RESPONSE TO NO TICE U/S 153A OF THE 1961 ACT. THE ASSESSEE, IN RESPONSE TO NOTICE U/S 142(1) OF THE 1961 ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 153A OF THE 19 61 ACT HAD FILED REPLY ON 4 TH DECEMBER, 2012 , WHEREIN THE NOTE ON THE INCOME F ROM OTHER SOURCES WAS MENTIONED , WHICH READS AS UNDER:- INCOME FROM OTHER SOURCES COMPRISES OF INTEREST RE CEIVED ON SAVINGS BANK ACCOUNT. FURTHER, MY FATHER LATE MR. PRAKASH SUTRAVE WAS SETTLED IN BAHRAIN AND HAD EARNED SUBST ANTIAL INCOME FROM HIS OCCUPATION AS A HEAD OF A GARMENT F ACTORY. OUT OF HIS EARNING AND OUT OF NATURAL LOVE AND AFFECTIO N HE GAVE/TRANSFERRED TO ME FROM TIME TO TIME AMOUNTS TO WARDS GIFTS AND/OR CONTRIBUTION TO FAMILY EXPENDITURE. UNFORTUN ATELY IN VIEW ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 5 OF HIS SUDDEN DEMISE ON 8 OCTOBER, 2011 IT IS DIFFI CULT TO COMPILE THE RELEVANT INFORMATION AND SUPPORTING. ALSO SEVER AL CREDITS FOR WHICH DETAILS ARE NOT READILY AVAILABLE DUE TO LOSS OF PAST RECORDS HAVE BEEN DECLARED AS INCOME. HENCE OUT OF ABUNDANT CAUTION AND WITH VIEW TO AVOID POTENTIAL LITIGATION AND TO BUY PEACE RS. 5,16,485/- IS INCLUDED VOLUNTARILY IN THE COMPUTATI ON OF INCOME FROM OTHER SOURCES. HOWEVER, THE ASSESSEE DID NOT SUBMIT THE PROOF/DETA ILS OF THE SOURCE OF INCOME. THE A.O. OBSERVED THAT THE ASSESSEE HAS NO T SHOWN THE SAID OTHER INCOME OF RS.5,16,485/- IN THE ORIGINAL RETURN OF I NCOME ORIGINALLY FILED BY THE ASSESSEE U/S 139(1) OF THE ACT. THE A.O. ACCEPTED RETURNED INCOME OF RS. 8,30,318/- DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE ACT , WHILE FRA MING THE ASSESSMENT ORDER DATED 25-03-2013 U/S 143(3) R.W.S. 153A OF THE ACT. IN-NUTSHELL , NO ADDITIONS WERE MADE BY THE AO IN THE ASSESSMENT ORD ER DATED 25-03-2013 FRAMED U/S 143(3) R.W.S. 153A OF THE 1961 ACT RATHE R RETURNED INCOME AS VOLUNTARILY DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT STOOD ACCEPTED BY THE AO. IT IS ALSO PERTINENT TO MENTION THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 153A OF THE 1961 ACT, THE ASSESSEE NEVER RETRA CTED THE DECLARATION OF THE AFORE-SAID INCOME FROM OTHER SOURCES TO THE TUNE OF RS. 5,16,485/- DECLARED VOLUNTARILY BY THE ASSESSEE IN RETURN OF INCOME FIL ED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 25-03-20 13 FRAMED U/S 143(3) R.W.S. 153A OF THE 1961 ACT BY THE AO , THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHEREIN, INTER ALIA, T HE ASSESSEE CHALLENGED THE SEARCH OPERATIONS CONDUCTED BY REVENUE UNDER SECTIO N 132 OF THE 1961 ACT AND ALSO CONTENDED THAT IN THE ABSENCE OF ANY INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIONS NO ADDITIONS CAN BE MADE BY THE AO UNLESS THE ASSESSMENTS ARE PENDING ON THE DATE OF I NITIATION OF SEARCH , BY ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 6 RELYING ON THE DECISION OF SPECIAL BENCH OF THE MUM BAI ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LIMITED 137 ITD 287 AND DECI SION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. MURLI AGRO PRODUCT S LIMITED (ITA NO. 36 OF 2009) , WHICH PLEAS OF THE ASSESSEE WERE REJECTED BY THE LD. CIT(A) VIDE APPELLATE ORDER DATED 04-02-2015 , BY HOLDING AS UN DER:- I HAVE VERY CAREFULLY CONSIDERED THE MATTER. IT IS VERY CLEARLY SEEN FROM THE ORDER OF ASSESSMENT THAT IN RESPONSE TO NO TICE UNDER S. 153A THE APPELLANT HAD FILED THE RETURN OF INCOME A ND AS PER THE SAID RETURN THE APPELLANT HAD DISCLOSED INCOME UNDE R THE HEAD 'OTHER SOURCES' AMOUNTING TO RS. 5,16,485/-. THEREF ORE, THE VERY FOUNDATION OF THE APPEAL THAT THE AO HAD MADE ADDIT ION WHICH IS NOT VALID HAS TO CERTAINLY FAIL. IT IS A CASE WHERE THE ASSESSEE HAD DISCLOSED THE SAID SUM TO TAX IN THE RETURN OF INCO ME FILED IN PURSUANCE TO NOTICE UNDER S. 153A. AFTER HAVING DIS CLOSED THE SUM OF RS. 5,16,485/- BEING CREDITS IN THE BANK ACC OUNT FOR WHICH NO EXPLANATION HAS BEEN OFFERED, THE APPELLAN T MAKES A TURNAROUND STATING THAT THE SEARCH ITSELF IS NOT VA LID. THE GROUNDS OF APPEAL AS FILED CHALLENGE THE SEARCH UNDERTAKEN UNDER S. 132(1) OF THE I.T. ACT. IN THIS REGARD, IT HAS TO B E STATED HERE THAT SECTION 246A STIPULATES WHAT ARE THE 'APPEALABLE OR DERS' BEFORE THE CIT(A). THE AUTHORIZATION ISSUED BY THE COMPETE NT OFFICERS AS PRESCRIBED UNDER S. 132(1) TO CONDUCT SEARCH AND SE IZURE IS NOT AN ORDER APPEALABLE UNDER S. 246A. THE SAID AUTHORI ZATION AS ISSUED UNDER S. 132(1) IS CERTAINLY NOT AN ORDER AS STIPULATED IN SECTION 246A(1). THE APPELLANT SEEKS TO MAKE OUT A CASE STATING THAT THE SEARCH CONDUCTED ON THE APPELLANT WAS BASE D ONLY ON SURMISES AND SUSPICION. IT IS WELL SETTLED THAT THE REASONS TO BELIEVE ON THE BASIS OF WHICH SEARCH IS AUTHORIZED NEED NOT BE COMMUNICATED TO THE ASSESSEE. IN THE CASE OF A SEAR CH UNDER S. 132, THE INFORMATION IS GATHERED THROUGH INFORMERS OR OTHER SOURCES CONFIDENTIALLY. NEEDLESS TO STATE, SECRECY IS THE MAIN INGREDIENT OF A SUCCESSFUL ACTION UNDER S. 132. IF THE SECRECY IS BROKEN BEFORE THE SEARCH, THE SEARCH WOULD BE A FAI LURE AND IF THE SECRECY IS BROKEN AFTER THE SEARCH, IT WOULD CREATE SERIOUS THREAT TO THE LIFE AND SECURITY OF INFORMERS. ALSO, IT IS WHEN THERE ARE COGENT REASONS AND RELEVANT MATERIAL TO JUSTIFY THE FORMATION OF BELIEF WITH REGARD TO THE CONDITIONS LAID DOWN IN C LAUSES (A), (B) AND (C) OF SUB SECTION 1 OF SECTION 132 THAT THE CO MPETENT AUTHORITY GRANTS AUTHORIZATION FOR CONDUCTING THE S EARCH ACTION. THE VERY FACT THAT THE ASSESSEE ITSELF HAD, IN THE RETURN OF INCOME ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 7 FILED, DISCLOSED THE SUM OF RS.5,16,485/- IS A POIN TER TO THE FACT THAT THE WARRANT WAS AUTHORIZED ON THE BASIS OF COG ENT AND RELEVANT MATERIAL AND NOT ON MERE SURMISES AND ASSU MPTIONS. THE ACTION OF THE ASSESSEE IN DISCLOSING SUCH SUMS TO TAX IN ITSELF INDICATES THAT SEARCH AND SEIZURE ACTION UNDER S. 1 32 OF THE INCOME TAX ACT ON THE ASSESSEE IS VALID. IN OTHER W ORDS, THERE IS A RATIONAL CONNECTION BETWEEN THE INFORMATION IN POSS ESSION OF THE DEPARTMENT/THE OPINION FORMED AND THE CONDUCT OF TH E ASSESSEE, IN DISCLOSING SUCH A SUM PURSUANT TO NOTICE ISSUED UNDER S. 153A. IT IS THUS CLEAR THAT THE INFORMATION IN POSS ESSION OF THE DEPARTMENT WAS SOMETHING MORE THAN A MERE SURMISE O R RUMOR. COURTS CANNOT SIT IN APPEAL OVER THE OPINION FORMED BY THE AUTHORIZED PERSON IF THE AUTHORIZED PERSON HAD INFO RMATION IN HIS POSSESSION AND THE OPINION FORMED IS ON THE BASIS O F RELEVANT MATERIAL. THE APPELLANT HEREIN HAS NO CASE THAT THE FORMATION OF OPINION IS NOT BONAFIDE OR THAT IT IS BASED ON EXTR ANEOUS OR IRRELEVANT MATERIAL. IN OTHER WORDS, IF THE BELIEF IS BONAFIDE, THE QUESTION OF APTNESS OF THE FORMATION OF BELIEF CANN OT BE GONE INTO. FURTHER, IN THE INSTANT CASE, SUBSEQUENT TO THE SEA RCH ACTION AND IN RESPONSE TO NOTICE ISSUED UNDER S. 153A, THE RET URN OF INCOME WAS FILED DISCLOSING INCOME WHICH WOULD OTHERWISE N OT HAVE BEEN DISCLOSED. IN THESE CIRCUMSTANCES, IT IS NOT OPEN F OR THE APPELLANT HEREIN TO QUESTION THE LEGALITY AND VALIDITY OF SEA RCH AND SEIZURE PROCEEDINGS EITHER BEFORE THE AO OR IN APPEAL BEFOR E THE CIT(A). IN THE CASE OF VIRENDER BHATIA VS. DCIT (2001) 79 ITD 340 (DEL-TRIB), IT HAS BEEN OBSERVED THAT THE QUESTION OF VALIDITY OF SEARCH IS BEYOND THE PALE OF POWER OF THE AO AS WELL AS THE A PPELLATE AUTHORITIES. THE TRIBUNAL HAS FURTHER STATED THAT E VEN IF THE SEARCH IS DECLARED INVALID, THE REVENUE CANNOT BE L EGALLY STOPPED FROM MAKING USE OF MATERIAL AND INFORMATION WHICH C AME INTO POSSESSION IN THE COURSE OF SEARCH. ALSO, IN THE CA SE OF ABHAY KUMAR SHROFF VS. CIT (2007) 290 ITR 114 (JHARKHAND) , THE COURT DID NOT ACCEPT THE CONTENTION THAT THE TRIBUNAL HAS THE POWER TO SIT IN JUDGMENT OVER THE VALIDITY OF AUTHORIZATION OF SEARCH. THE APPELLANT HAS PLACED RELIANCE ON THE JUDGMENT OF TH E RAJASTHAN HIGH COURT IN THE CASE OF CHITRA DEVI SONI. THE RAT IO LAID DOWN IN THE CASE OF CHITRA DEVI SONI IS NOT APPLICABLE TO T HE APPELLANT'S CASE FOR THE SIMPLE REASON THAT IN THE CASE OF THE APPELLANT HEREIN NO ADDITION HAS BEEN MADE BY THE AO IN THE ORDER OF ASSESSMENT FOR THE CAPTIONED YEAR; THE AMOUNTS AS DISCLOSED BY THE APPELLANT HEREIN HAS BEEN ACCEPTED BY THE AO. THUS, THERE CAN BE NO GRIEVANCE ON THIS SCORE. BESIDES, THE RELIANCE PLAC ED BY THE APPELLANT ON THE JUDGMENT OF THE BOMBAY HC IN THE C ASE OF MURLI AGRO PRODUCTS LTD. IS MISPLACED. IT IS NOT AS THOUG H THE AO HAS ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 8 ON HIS OWN DISTURBED AN ASSESSMENT THAT HAD EARLIER ATTAINED FINALITY. IN THE INSTANT CASE, IT IS THE APPELLANT HIMSELF WHO HAS DISCLOSED THE SUM OF RS. 5,16,485/ - IN PURSUANCE T O THE RETURN FILED UNDER S.153A WHICH SUM WAS NOT EARLIER DISCLO SED IN THE RETURN THAT HAD BEEN FILED UNDER S.139(1). THAT BEI NG SO, THE QUESTION OF THE AO DISTURBING AN EARLIER FINALIZED ASSESSMENT DOES NOT ARISE; IF ANY DISTURBANCE HAS BEEN MADE, I T HAS BEEN MADE BY THE ASSESSEE HIMSELF. FURTHER, EVEN DURING THE COURSE OF HEARING OF THE APPEAL THE APPELLANT COULD NOT GIVE ANY EXPLANATION AS REGARDS THE NATURE AND SOURCE OF THE CREDITORS IN THE ASSESSEE'S BANK ACCOUNT. IN THE CIRCUMSTANCES, IT IS HELD THAT THE ASSESSMENT AS MADE BY THE AO FOR THE IMPUGNED Y EAR IS VALID AND NO INTERFERENCE IS REQUIRED. 8. IN THE RESULT, THE APPEAL IS DISMISSED. 5. AGGRIEVED BY THE APPELLATE ORDER DATED 04-02-201 5 PASSED BY LD. CIT(A), THE ASSESSEE FILED SECOND APPEAL BEFORE THE TRIBUNA L. 6. THE ASSESSEE HAS RAISED GROUND NO 1(1.1 TO 1.5) IN MEMO OF APPEAL FILED WITH THE TRIBUNAL CHALLENGING THE LEGALITY AND VALI DITY OF SEARCH U/S 132(1) OF THE 1961 ACT CONDUCTED BY REVENUE. THE LD. COUNSEL FOR THE ASSESSEE (CA PARESH VAKHARAI, MEMBERSHIP NO. 038220) SUBMITTED T HAT THIS GROUND OF APPEAL CHALLENGING LEGALITY AND VALIDITY OF SEARCH OPERATIONS U/S 132(1) OF THE 1961 ACT IS NOT PRESSED BY THE ASSESSEE AND HE SOUG HT PERMISSION OF THE BENCH FOR WITHDRAWAL OF THIS GROUND NO 1(1.1 TO 1.5 ) RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE DULY SIGNED AND WROTE ACROSS GROUNDS OF APPEAL IN T HE FILE OF THE TRIBUNAL IN OPEN COURT, THAT GROUND NO.1 (1.1 TO 1.5) IS NOT PR ESSED IN VIEW OF RECENT INCOME TAX AMENDMENTS. THUS, IT WAS PRAYED BY LEARN ED COUNSEL FOR THE ASSESSEE THAT THE SAID GROUND OF APPEAL BE DISMISSE D BY THE TRIBUNAL AS NOT BEING PRESSED. THE LD. CIT D.R. HAS ALSO NOT RAISED ANY OBJECTION FOR WITHDRAWAL AND DISMISSAL OF THIS GROUND OF APPEAL N O. 1(1.1 TO 1.5) ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 9 CHALLENGING LEGALITY AND VALIDITY OF SEARCH CONDUCT ED BY REVENUE U/S 132(1) OF THE 1961 ACT. AFTER HEARING BOTH THE PARTIES, WE DEEM IT FIT TO D ISMISS THIS GROUND NO 1(1.1 TO 1.5) OF APPEAL RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL AS BEING WITHDRAWN BY THE ASSESSEE.WE ORDE R ACCORDINGLY. 7. HOWEVER, THE ASSESSEE HAS RAISED ALTERNATIVE GRO UND CHALLENGING THE JURISDICTION OF THE A.O. TO FRAME THE ASSESSMENT ON THE GROUND THAT NO INCRIMINATING MATERIAL WAS FOUND BY THE REVENUE DUR ING THE COURSE OF SEARCH OPERATION U/S 132(1) OF THE ACT. HENCE, IT WAS PRAY ED THAT THE INCOME AS DECLARED IN THE RETURN OF INCOME FILED U/S 139(1) O F THE ACT BE ACCEPTED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US TH AT THIS ALTERNATE GROUND OF APPEAL WAS RAISED IN ALL THE ASSESSMENT YEARS . IT IS SUBMITTED THAT THE SEARCH WAS CONDUCTED BY REVENUE U/S 132(1) ON 11 TH FEBRUARY, 2011 AND DURING COURSE OF SEARCH OPERATIONS CONDUCTED BY REV ENUE U/S 132(1) NO INCRIMINATING MATERIAL WAS FOUND . IT IS SUBMITTED THAT THE ASSESSEE WAS DIRECTOR IN A COMPANY I.E. PGA SHIPPING AND LOGISTI CS PVT. LTD. AND THE ASSESSEE HAD EARNED SALARY INCOME AND ALSO INCOME F ROM HOUSE PROPERTY. IT IS SUBMITTED THAT THE RETURN OF INCOME U/S 139(1) O F THE ACT FOR A.Y. 2006-07 WAS ORIGINALLY FILED ON 1 ST NOVEMBER, 2006 , WHILE THE SEARCH U/S 132(1) TOOK PLACE ON 11 TH FEBRUARY, 2011. IT IS SUBMITTED THAT THE ASSESSEE HAD SHOWN OTHER INCOME UNDER THE HEAD INCOME FROM OTHER SOUR CES OF RS. 5,16,485/- WHICH WAS MAINLY IN THE NATURE OF GIFT FROM HIS FAT HER WHO WAS SETTLED IN BAHRAIN AND HAVING SUBSTANTIAL EARNINGS AND HIS FAT HER HAS TRANSFERRED THE AMOUNTS FROM TIME TO TIME OUT OF NATURAL LOVE AND A FFECTION TOWARDS GIFTS AND/OR CONTRIBUTION TO FAMILY EXPENDITURE WHICH AMO UNT WAS DECLARED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 15 3A OF THE ACT. IT WAS ALSO SUBMITTED THAT THERE WERE FEW OTHER CREDITS IN THE BANK ACCOUNT WHEREIN NO DETAILS WERE AVAILABLE WITH THE ASSESSEE AND HENCE THE SAME WERE OFFERED FOR ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 10 TAXATION. IT WAS SUBMITTED THAT THE SAID SUMS OF A MOUNT WERE OFFERED TO TAXATION BY THE ASSESSEE VOLUNTARILY TO AVOID PROTR ACTED LITIGATION WITH REVENUE AND TO BUY PEACE . IT IS SUBMITTED THAT THE ASSESSEE HAS NOT RETRACTED SUCH VOLUNTARY DECLARATION OF INCOME BY T HE ASSESSEE AND THE INCOME CONTINUED TO BE DECLARED AND OFFERED FOR TAX ATION IN RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 A CT. IT IS SUBMITTED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND BY REVENU E DURING THE COURSE OF SEARCH OPERATIONS U/S 132(1) OF THE 1961 ACT, NO AD DITION CAN BE MADE BY THE A.O. WITH RESPECT TO THE SAID INCOME VOLUNTARILY OF FERED BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 1 53A OF THE 1961 ACT. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGE NO. 1 OF THE PAPER BOOK WHEREIN A LETTER DATED 6 TH NOVEMBER, 2012 FILED BY THE ASSESSEE BEFORE AO ON 07-11-2012 IS PLACED ON RECORD , WHEREIN IT I S SUBMITTED BEFORE THE AO THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND BY R EVENUE DURING THE COURSE OF SEARCH OPERATIONS U/S 132(1), NO ADDITION COULD HAVE BEEN MADE BY THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) R.W.S. 15 3A . IT IS STATED BY LEARNED COUNSEL FOR THE ASSESSEE THAT NO INCRIMINAT ING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATIONS. IT WAS ALSO SUBMITTED THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07 IS AN UN ABATED ASSESSMENT AS NO ASSESSMENT WAS PENDING ON THE DATE OF INITIATION OF SEARCH FOR THE IMPUGNED ASSESSMENT YEAR AND NO ADDITIONS CAN BE MA DE BY THE AO IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIONS. IT IS SUBMITTED THAT SEARCH U/S 132(1) TOOK PLACE ON 11-02-2011 AND RETURN OF INCOME WAS FILED BY THE ASSSESSEE ORI GINALLY U/S 139(1) OF THE 1961 ACT ON 01-11-2006 AND TIME LIMITATION FOR ISSU E OF NOTICE U/S 143(2) OF THE 1961 ACT EXPIRED ON 30-11-2007 WHILE NO NOTICE U/S 143(2) OF THE 1961 ACT WAS ISSUED BY THE AO BEFORE THE SAID DATE . TH E ASSESSEE RELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT V. CONTINENTAL WAREHOUSING CORPORATION REPORTED IN (2015) 374 ITR 0645 (BOM) AND ALSO THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CAS E OF JAI STEEL (INDIA), ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 11 JODHPUR V. ACIT, 259 CTR 281 (RAJASTHAN) AND SUBMIT TED THAT IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH OPERATIONS U/S 132(1), NO ADDITIONS CAN BE MADE BY THE AO IN THE U NABATED ASSESSMENTS WHILE FRAMING ASSESSMENT U/S 143(3) R.W.S. 153A OF THE 1961 ACT. IT IS STATED THAT THE ASSESSEE HAS NOT RETRACTED VOLUNTARY INCOM E OF RS. 5,16,485/- DECLARED IN RETURN OF INCOME FILED WITH THE REVENUE ON 07-11-2012 WHICH WAS FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 A CT. THE ASSESSEE ALSO RELIED ON THE DECISION OF THE MUMBAI-TRIBUNAL IN TH E CASE OF DCIT V. SARASWAT CO-OPERATIVE BANK LTD. [2017] 79 TAXMANN.COM 305 (M UMBAI-TRIB) AND PRAYED THAT THE ASSESSED INCOME IN THE ASSESSMENT F RAMED U/S 153A R.W.S. 143(3) OF THE 1961 ACT BE RESTORED TO THE ORIGINAL INCOME OF RS. 3,12,230/-. AS DECLARED VIDE RETURN OF INCOME ORIGINALLY FILED U/S 139(1) OF THE ACT. IT IS SUBMITTED THAT W.R.T. ASSESSMENT YEARS 2007-08 TO 2009-10 ALSO, ALL THE ASSESSMENTS ARE UNABATED ASSESSMENTS AS NO ASSESSME NT WAS PENDING ON THE DATE OF INITIATION OF SEARCH FOR THE SAID ASSES SMENT YEARS AND SIMILAR POSITION SHALL APPLY TO SAID ASSESSMENT YEARS AS IS APPLICABLE FOR ASSESSMENT YEAR 2006-07 . WITH RESPECT TO THE A.Y. 2010-11 IT IS SUBMITTED THAT THIS IS AN ABATED ASSESSMENTS AS TIME LIMITATION FOR ISSUE OF NOTICE U/S 143(2) HAD NOT EXPIRED ON THE DATE OF SEARCH ON 11-02-2011 AND THE ASSESSMENT CAN BE SAID TO BE PENDING ON THE DATE OF INITIATION OF SEARCH. IT IS SUBMITTED THAT THE BANK ACCOUNT WHEREIN REMITTANCE FROM THE FATHER STOOD CR EDITED WAS ALREADY DECLARED TO THE REVENUE. IT IS SUBMITTED THAT THE FATHER OF THE ASSESSEE EXPIRED ON 8 TH OCTOBER, 2011. 8. THE LD. CIT D.R. SUBMITTED THAT THE A.O. HAS ACC EPTED THE INCOME DECLARED AS PER THE RETURN OF INCOME VOLUNTARILY FI LED BY THE ASSESSEE IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT. THE LEARNED CIT DR SUBMITTED THAT THE ASSESSEE WAS SEARCHED U/S 132(1) OF THE 1961 ACT BY REVENUE ON 11 TH FEBRUARY, 2011 . IT IS SUBMITTED BY LEARNED CIT D R THAT NOW THE ASSESSEE IS SEEKING TO WRIGGLE OUT OF THE INCOM E VOLUNTARILY DECLARED BY ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 12 THE ASSESSEE HIMSELF IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A , WHICH CANNOT BE ALLOWED. IT IS SUBMITTED TH AT THE OTHER INCOME OF RS. 5,16,485/- WAS NOT DECLARED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE 1961 ACT , BUT THE SAME WAS OFFERED BY THE A SSESSEE VOLUNTARILY FOR TAXATION AS ADDITIONAL INCOME IN RETURN OF INCOME F ILED U/S 153A OF THE 1961 ACT. IT IS SUBMITTED THAT THE ASSESSEE VOLUNTARILY SURRENDERED AND DISCLOSED THE SAID INCOME IN RETURN OF INCOME FILED WITH THE REVENUE U/S 153A AND THERE WAS NO RETRACTION OF SAID SURRENDER OR VOLUNT ARY DISCLOSURE OF INCOME . IT WAS SUBMITTED THAT THE AO DID NOT MADE ANY ADDIT IONS WHILE FRAMING ASSESSMENTS U/S 153A R.W.S. 143(3) OF THE 1961 ACT RATHER THE AO ACCEPTED THE RETURNED INCOME VOLUNTARILY FILED BY THE ASSESS EE IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT. IT IS SUBMITTED THAT NO I NCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERA TIONS U/S 132(1) OF THE 1961 ACT EXCEPT SOME JEWELLERY AND INSURANCE POLICI ES WHICH STOOD EXPLAINED AND NO ADDITIONS HAVE BEEN MADE BY THE AO ON THAT A CCOUNT. THE STATEMENT RECORDED BY REVENUE OF THE ASSESSEE ON 08-03-2011 U /S 132(4) OF THE 1961 ACT WAS PLACED ON RECORD BY LEARNED CIT DR. IT IS ALSO SUBMITTED BY LEARNED CIT DR THAT THE ASSESSEE HAS NOT GIVEN BREAKUP OF O THER INCOME OF RS. 5,16,485/- DECLARED IN RETURN OF INCOME FILED U/S 1 53A OF THE 1961 ACT BEFORE THE A.O. AND THE LD. CIT(A) DURING RELEVANT PROCEED INGS. IT IS SUBMITTED THAT NO SUCH DETAILS/BREAK-UP ARE FURNISHED EVEN BEFORE THE TRIBUNAL AND BALD STATEMENTS ARE MADE AS TO AMOUNT BEING RECEIVED FRO M FATHER SETTLED IN BAHRAIN AND THE SAID FATHER HAVING SUBSTANTIAL INCO ME IN BAHRAIN. IT IS SUBMITTED THAT THERE IS NO IOTA OF EVIDENCE FILED B Y THE ASSESSEE TO PROVE ITS CONTENTION ABOUT STATUS OF HIS FATHER IN BAHRAIN , HIS SUBSTANTIAL EARNINGS AS WELL WHETHER REMITTANCE WAS MADE BY HIM AT ALL TO T HE ASSESSEE. IT IS SUBMITTED THAT EVEN NO DETAILS AS TO PROVE CREDITWO RTHINESS , IDENTITY OF THE REMITTER AS ALSO NOTHING HAS BEEN BROUGHT ON RECOR D TO PROVE GENUINENESS OF THE SAID REMITTANCES BY FATHER HAS BEEN BROUGHT ON RECORD. ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 13 9. THE LD. COUNSEL FOR THE ASSESSEE, IN THE REJOIND ER, SUBMITTED THAT DURING THE COURSE OF SEARCH OPERATIONS U/S 132(1) OF THE 1 961 ACT, NO INCRIMINATING MATERIAL WAS FOUND BY THE REVENUE WHICH IS NOW ADMI TTED BY REVENUE AS LEARNED CIT DR WAS DIRECTED TO BRING ALL RECORDS BE FORE TRIBUNAL WHEREIN STATEMENT OF THE ASSESSEE U/S 132(4) IS PRODUCED BY LEARNED CIT DR WHEREIN THERE IS NO MENTION OF ANY INCRIMINATING MATERIAL F OUND BY REVENUE DURING SEARCH OPERATIONS U/S 132(1) OF THE ACT. THE LD. C OUNSEL RELIED ON THE DECISION OF MUMBAI TRIBUNAL IN THE CASE OF GURINDER SINGH BAWA V. DCIT, [2012] 28 TAXMANN.COM 328 (MUMBAI TRIB.) . THE LEAR NED COUNSEL FOR THE ASSESSEE WOULD ALSO RELY ON JUDGMENT OF DELHI-TRIB UNAL IN THE CASE OF DCIT V. AGGARWAL ENTERTAINMENT PRIVATE LIMITED REPORTED IN (2016) 72 TAXMANN.COM 340( DEL.-TRIB.) 10. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING CASE LAWS CITED BY TH E PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE IS A SALARIED PERSON WOR KING AS DIRECTOR IN PGA SHIPPING & LOGISTICS PVT. LTD. . A SEARCH AND SEIZ URE OPERATIONS U/S. 132(1) OF THE ACT WAS CONDUCTED BY REVENUE ON 11 TH FEBRUARY, 2011 IN TRANSWORLD FURTICHEM PVT. LTD. GROUP OF CASES. THE ASSESSEE W AS ALSO PART OF THE SAID SEARCHES U/S 132(1) OF THE 1961 ACT CONDUCTED BY TH E REVENUE ON 11-02- 2011. THE ASSESSEE HAD ORIGINALLY FILED HIS RETUR N OF INCOME U/S 139(1) OF THE ACT ON 1ST NOVEMBER, 2006 WHEREIN THE INCOME WA S DECLARED AT RS. 3,12,230/- FOR THE IMPUGNED ASSESSMENT YEAR 2006-07 . NOTICE U/S 153A OF THE ACT WAS ISSUED BY THE AO TO THE ASSESSEE ON 15 TH FEBRUARY, 2012 WHEREIN THE ASSESSEE WAS ASKED TO FILE RETURN OF INCOME FOR THE A.Y. 2006-07 AND IN RESPONSE TO NOTICE U/S 153A OF THE 1961 ACT , THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 8,30,318/-. I N ADDITION TO THE INCOME DECLARED BY THE ASSESSEE IN RETURN OF INCOME FILED U/S 139(1) , THE ASSESSEE HAD SHOWN OTHER INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES OF RS. 5,16,485/- IN THE RETURN OF INCOME FILED IN RESPONS E TO THE NOTICE U/S 153A OF ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 14 THE 1961 ACT. DURING THE COURSE OF ASSESSMENT PROC EEDINGS U/S 153A OF THE ACT, THE ASSESSEE VIDE HIS LETTER DATED 4.12.2012 H AS SUBMITTED AS UNDER:- INCOME FROM OTHER SOURCES COMPRISES OF INTEREST RE CEIVED ON SAVINGS BANK ACCOUNT. FURTHER, MY FATHER LATE MR. PRAKASH SUTRAVE WAS SETTLED IN BAHRAIN AND HAD EARNED SUBST ANTIAL INCOME FROM HIS OCCUPATION AS A HEAD OF A GARMENT F ACTORY. OUT OF HIS EARNING AND OUT OF NATURAL LOVE AND AFFECTIO N HE GAVE/TRANSFERRED TO ME FROM TIME TO TIME AMOUNTS TO WARDS GIFTS AND/OR CONTRIBUTION TO FAMILY EXPENDITURE. UNFORTUN ATELY IN VIEW OF HIS SUDDEN DEMISE ON 8 OCTOBER, 2011 IT IS DIFFI CULT TO COMPILE THE RELEVANT INFORMATION AND SUPPORTING. ALSO SEVER AL CREDITS FOR WHICH DETAILS ARE NOT READILY AVAILABLE DUE TO LOSS OF PAST RECORDS HAVE BEEN DECLARED AS INCOME. HENCE OUT OF ABUNDANT CAUTION AND WITH VIEW TO AVOID POTENTIAL LITIGATION AND TO BUY PEACE RS. 5,16,485/- IS INCLUDED VOLUNTARILY IN THE COMPUTATI ON OF INCOME FROM OTHER SOURCES. THE ASSESSE SUBMITTED THAT THE INCOME OF RS. 5,16,4 85/- WAS DECLARED IN THE RETURN OF INCOME FILED U/S 153A OF THE 1961 ACT TO AVOID LITIGATION WITH REVENUE AND TO BUY PEACE. THE ASSESSEE HAS , HOWEV ER, CONTENDED AT THE TIME OF FILING OF RETURN OF INCOME ON 07-11-2012 VI DE LETTER DATED 06-11-2012 FILED ON 07-11-2012 (PB/PAGE1) THAT NO INCRIMINATIN G MATERIAL WAS FOUND DURING THE COURSE OF SEARCHES U/S 132(1) OF THE 196 1 ACT AND THE ASSESSMENT U/S 153A OF THE 1961 ACT CAN BE FRAMED ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH OPERATIONS U/S 132 (1) (PB/1) BY RELYING ON DECISION OF SPECIAL BENCH OF THE MUMBAI-TRIBUNAL IN THE CASE OF ALL CARGO LOGISTICS LIMITED(SUPRA) . THE ASSESSEE HOWEVER DID NOT RETRACTED BEFORE THE AO FROM THE ADDITIONAL INCOME OF RS. 5,16,485/- VOL UNTARILY DECLARED BY IT IN RETURN OF INCOME FILED BY THE ASSESSEE IN PURSUANCE TO NOTICE U/S 153A DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE A. O. ACCEPTED THE INCOME OF RS. 8,30,318/- AS VOLUNTARILY DECLARED IN THE SA ID RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT AND NO ADDITION WAS IN-FACT MADE BY THE A.O. IN THE ASSESSMENT ORDER DATED 25.0 3.2013 PASSED U/S 153A R.W.S 143(3) OF THE 1961 ACT RATHER THE AO ACCEPTED THE RETURNED INCOME ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 15 DECLARED IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT. THE SAID ASSESSMENT ORDER WAS UPHELD BY THE LD. CIT(A) VIDE APPELLATE ORDER DATED 04-02-2015. THE ASSESSEE HAD VOLUNTARILY SURRENDERED AN AMOUNT OF RS. 5,16,485/- IN THE RETURN OF INCOME FILED U/S 153A PURSUANT TO SEARCH U/S 132(1). THE ASSESSEE IS , THEREAFTER, TRYING TO WRIGGLE OUT OF THE SAID INCOME ON THE GROUND THAT NO INCRIMINATING MAT ERIAL WAS FOUND DURING THE COURSE OF SEARCH CONDUCTED BY REVENUE U/S 132(1 ) AND HENCE NO ADDITION CAN BE MADE IN THE ASSESSMENT FRAMED U/S 153A R.W.S . 143(3) OF THE ACT. THE ASSESSEE RELIED ON THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SUPRA) AND OTH ER DECISIONS WHICH ARE MENTIONED IN PRECEDING PARAS. WE HAVE OBSERVED THA T IN THIS CASE NO ADDITIONS WERE IN-FACT MADE BY THE A.O. RATHER INC OME VOLUNTARILY DECLARED BY THE ASSESSEE IN RETURN OF INCOME FILED IN PURSUA NCE OF NOTICE U/S 153A OF THE 1961 ACT WAS ACCEPTED. NO-DOUBT THIS IS AN UNA BATED ASSESSMENT AS RETURN OF INCOME U/S 139(1) OF THE 1961 ACT WAS FIL ED ON 01-11-2006 AND THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) EXPIRE D ON 30-11-2007 WHILE NO NOTICE U/S 143(2) OF THE 1961 ACT WAS ISSUED BY THE REVENUE AND SAID TIME LIMITATION EXPIRED WHILE SEARCHES U/S 132(1) OF THE 1961 ACT WAS CONDUCTED ON 11-02-2011 AND THUS, IT COULD NOT BE SAID THAT A SSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR WAS PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132. NO DOUBT IT IS NOW AS SETTLED POSITION VI DE SEVERAL DECISIONS OF HONBLE HIGH COURTS INCLUDING JURISDICTIONAL HIGH C OURT THAT THE A.O. IS REQUIRED TO MAKE ADDITION ONLY IN ACCORDANCE WITH T HE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH WHILE FRAMING ASS ESSMENT U/S 153A R.W.S. 143(3) IN CASE OF UNABATED ASSESSMENTS WHICH WERE N OT PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 OF THE 1961 ACT, BU T IN THIS CASE THE ASSESSEE VOLUNTARILY DECLARED ADDITIONAL INCOME OF RS. 5,16, 485/- OF HIS OWN VOLITION IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U /S 153A. IN CASE OF SEARCHES CONDUCTED BY REVENUE U/S 132(1) OF THE ACT AFTER THE 31-05-2003, THE ASSESSEE IS REQUIRED VIDE SECTION 153A(1)(A) OF THE 1961 ACT TO FILE RETURN ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 16 OF INCOME AFRESH IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 IN RESPECT OF EACH OF ASSESSMENT YEAR FALLING WITHIN SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED , WHEREIN A FRESH OPPORTUNITY AND WINDOW IS MADE AVAILABLE TO THE TAX-PAYER TO DECLARE TRUE AND CORR ECT INCOME PURSUANT TO THE SEARCHES U/S 132 OF THE 1961 ACT , WHICH RETURN OF INCOME NOW FILED IN PURSUANCE OF NOTICE U/S 153A OF THE 1961 ACT GIVE C OULD INCLUDE NOT ONLY DECLARED IN THE RETURN OF INCOME ORIGINALLY FLED U/ S 139 OF THE 1961 ACT BUT ALSO ENABLE TAX-PAYER TO DECLARE SUCH ADDITIONAL IN COME WHICH THE TAX-PAYER OF HIS OWN VOLUNTARY CONTEMPLATION DEEM IT FIT TO D ISCLOSE AS THE SAID INCOME WAS NOT EARLIER DECLARED IN RETURN OF INCOME FILED U/S 139 OF THE 1961 ACT AS ALSO ENABLE TAX-PAYER TO DECLARE SUCH ADDITIONAL IN COME WHICH HAS NEXUS WITH AND IS BASED ON INCRIMINATING MATERIAL FOUND DURING SEARCH OPERATIONS . THUS, THIS WINDOW IS MADE AVAILABLE TO TAX-PAYERS T O COME FORWARD AND DECLARE TOTAL INCOME WHETHER OR NOT THE SAME WAS EA RLIER DECLARED IN RETURN OF INCOME FILED U/S 139 AS ALSO WHETHER OR NOT THE SAM E WAS BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE SEARCHES U/ S 132(1) , BUT THE INCOME WHICH THE ASSESSEE BELIEVES TO BE HIS TOTAL INCOME WITHIN THE PROVISIONS AND MANDATE OF THE 1961 ACT , PERSUANT TO SEARCHES. IN THE INSTANT CASE, THE ASSESSEE VOLUNTARILY CAME FORWARD AND DECLARED ADDI TIONAL INCOME OF RS. 5,16,485/- UNDER THE HEAD INCOME FROM OTHER SOURCE S IN RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 A CT WHICH INCOME WAS STATED TO BE BASED ON CREDITS IN BANK STATEMENT OF THE ASSESSEE WHICH THE ASSESSEE BELIEVED TO BE UN-EXPLAINABLE OWING TO DIF FICULTY IN OBTAINING EVIDENCES TO ESTABLISH THAT THE SAID CREDITS WERE N OT IN THE NATURE AND CHARACTER OF INCOME WHICH COULD BE CHARGED TO TAX W HICH IS EMANATING FROM THE LETTER DATED 04-12-2012 FILED BY THE ASSESSEE W ITH THE AO DURING ASSESSMENT PROCEEDINGS CONDUCTED BY THE AO U/S 143( 3) R.W.S. 153A OF THE 1961 ACT. IN OUR VIEW, THE RATIO OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SU PRA) AND OTHER DECISIONS ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 17 RELIED UPON BY THE ASSESSEE ARE NOT APPLICABLE TO T HE FACTS OF THE INSTANT CASE AS NO ADDITIONS WHATSOEVER HAS BEEN MADE BY THE AO IN THE ASSESSMENT FRAMED U/S 143(3) R.W.S. 153A OF THE ACT WHEREIN AO MERELY ACCEPTED THE RETURNED INCOME DECLARED IN RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153 A OF THE 1961 ACT, BUT AT THE SAME TIME WE ARE EQUALLY CONSCIOUS OF THE FACT THAT NO TAX CAN BE LEVIED EXCEPT BY THE AUTHOR ITY OF LAW WHICH IS MANDATE OF THE 1961 ACT DULY SUPPORTED BY MANDATE OF ARTICL E 265 OF THE CONSTITUTION OF INDIA WHICH STIPULATES THAT NO TAX SHALL BE LEVI ED OR COLLECTED EXCEPT BY AUTHORITY OF LAW. WE HAVE OBSERVED THAT THE ASSESSE E HAS NOT GIVEN ANY BREAK- UP OF THIS ADDITIONAL INCOME OF RS. 5,16,485/- VOLU NTARILY OFFERED BY THE ASSESSEE IN RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 153A OF THE 1961 ACT, WHILE THE SAID ADDITIONAL INCOME STOOD VO LUNTARILY DECLARED BY THE ASSESSEE HIMSELF IN RETURN OF INCOME FILED IN PURSU ANCE TO NOTICE U/S 153A OF THE 1961 ACT. BASED ON PECULIAR FACTS OF THE CASE A S DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT NOW IT IS INCUMBENT ON THE ASSESSEE TO GIVE BREAK- UP OF SAID ADDITIONAL INCOME OF RS. 5,16,485/- OFFE RED VOLUNTARILY FOR TAXATION BY THE ASSESSEE IN RETURN OF INCOME FILED IN PURSUA NCE TO NOTICE U/S 153A OF THE 1961 ACTAND BRING ON RECORD EVIDENCES TO PROVE THAT THIS AMOUNT OF RS. 5,16,485/- OFFERED FOR TAXATION VOLUNTARILY BY THE ASSESSEE ITSELF DOES NOT CONSTITUTE INCOME OF THE ASSESSEE AND THE SAME CANN OT BE CHARGED TO TAX WITHIN THE PROVISIONS AND MANDATE OF THE 1961 ACT. IT IS ALSO NOW AGREED BY BOTH THE RIVAL PARTIES THAT NO INCRIMINATING MATERI AL WAS FOUND DURING THE COURSE OF SEARCHES U/S 132(1) OF THE 1961 ACT CONDU CTED BY REVENUE. THE ONUS IS NOW ON THE ASSESSEE TO PROVE THAT THE SAID ADDITIONAL INCOME OFFERED FOR TAXATION VOLUNTARILY IN RETURN OF INCOME FILED U/S 153A OF THE 1961 ACT DID NOT HAD THE CHARACTER OF INCOME CHARGEABLE TO TAX A ND THE SAME CANNOT BE BROUGHT TO TAX BY REVENUE, WITHIN THE FRAME WORK OF THE 1961 ACT. IN OUR CONSIDERED VIEW END OF JUSTICE WILL BE MET IN THE I NSTANT CASE IF THE MATTER IS SET ASIDE AND RESTORED TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION ON MERITS OF THIS ISSUE WHEREIN ONE MORE OPPORTUNITY IS REQUI RED TO BE GRANTED TO THE ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 18 ASSESSEE TO FURNISH DETAILS/ EVIDENCES BEFORE THE AO TO PROVE THAT THE SAID ADDITIONAL AMOUNT OF RS. 5,16,485/- VOLUNTARILY DEC LARED BY THE ASSESSEE IN RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U/S 1 53A OF THE 1961 ACT IS NOT INCOME WHICH COULD BE BROUGHT TO TAX WITHIN THE PRO VISIONS AND MANDATE OF THE 1961 ACT , AND HENCE WE ARE INCLINED TO SET ASI DE AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR DENOVO ADJUDICATIO N OF THIS ISSUE ON MERITS IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO PR ODUCE EVIDENCES SHOWING THE BREAKUP OF INCOME OF RS. 5,16,485/- WHICH WAS D ECLARED VOLUNTARILY AS ADDITIONAL INCOME BY THE ASSESSEE IN RETURN OF INCO ME FILED U/S 153A OF THE 1961 ACT AND TO PROVE THAT THE SAME DO NOT CONSTITU TE INCOME OF THE ASSESSEE WHICH COULD BE BROUGHT TO TAX WITHIN FRAMEWORK AND MANDATE OF THE 1961 ACT. WE HAVE OBSERVED THAT THE ASSESSMENTS FOR ASSE SSMENT YEAR 2007-08 TO 2009-10 ARE ALL UNABATED ASSESSMENTS AS THE ASSESSM ENTS WERE NOT PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 OF THE 1961 ACT AND OUR ABOVE DECISION FOR ASSESSMENT YEAR 2006-07 SHALL APPLY TO APPEALS FOR ASSESSMENT YEAR 2007-08 TO 2009-10 MUTATIS MUTANDIS. WE HAVE A LSO OBSERVED THAT THE ASSESSMENT FOR A.Y. 2010-11 WAS ABATED ASSESSMENT A S THE ASSESSMENT WAS PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 (1) OF THE 1961 ACT AS TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE 1961 ACT HAS NOT EXPIRED AND THE RATIO OF DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SUPRA) IS NOT APPLICABLE T O THE ASSESSMENT YEAR 2010-11 AND THE AO WAS REQUIRED TO COMPUTE TOTAL IN COME OF THE ASSESSEE WHILE FRAMING ASSESSMENT U/S 153A R.W.S. 143(3) OF THE 1961 ACT WHETHER OR NOT THERE WAS ANY INCRIMINATING MATERIAL FOUND DURI NG THE COURSE OF SEARCH U/S 132(1) OF THE 1961 ACT. THUS, ALL THE SIX APPE ALS OF BOTH THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSE AS OUR DECISION IN ITA NO. 2987/MUM/2015 SHALL APPLY MUTATIS MUTANDIS TO REST OF THE FIVE APPEALS IN ITA NO. 2988 TO 2991/MUM/2015 FOR ASSESSMENT YEARS 2007-08 TO 2010-11 AND ALSO TO APPEAL OF OTHER ASSESSEE NAMELY MRS JAYAMALA SUTRAVE IN ITA NO. 2273/MUM/2015 FOR ASSESSMENT YEAR 2008-09.WE ORDER ACCORDINGLY ITA 2987 TO 2991/MUM/2015 & ITA 2273/MUM /2015 19 11. WE REITERATE THAT OUR ABOVE DECISION IN ITA NO. 2987/MUM/2015 FOR A.Y. 2006-07 SHALL APPLY MUTATIS MUTANDIS TO THE AS SESSEES OTHER APPEALS IN ITA NO. 2988 TO 2991/M/2015 FOR ASSESSMENT YEARS 2 007-08 TO 2010-11 AND ALSO TO THE APPEAL OF ANOTHER ASSESSEE NAMELY MRS JAYAMALA SUTRAVE IN ITA NO. 2273/MUM/2015 FOR ASSESSMENT YEAR 2008-09. 12. IN THE RESULT, ALL THE SIX APPEALS FILED BY BOT H THE ASSESSEES RESPECTIVELY ARE ALLOWED FOR STATISTICAL PURPOSE. WE ORDER ACCOR DINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH AUGUST, 2017. # $% &' 16.08.2017 ( ) SD/- SD/- - (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 16.08.2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI B BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI