M/s. Arora Jewellers Pvt. Ltd., Delhi V. ACIT, New Delhi

ITA 3101/DEL/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6729 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-07-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 10-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: SUMANGALA SAXENA
• Keywords: Bogus Share capital; Search and seizure; Opportunity of being heard; Tax effect
• Section: 143(3); 153A; 132; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI R.S. SYAL, AM & MS SUCHITRA KAMBLE, JM ITA NOS.3101 TO 3104/DEL/2011 ASSESSMENT YEAR : 2002-03 TO 2005-06 ARORA JEWELLERS PVT. LTD., L-9, VIJAY CHOWK, LAXMI NAGAR, DELHI. PAN: AAECA2119B VS. ACIT, CENTRAL CIRCLE-12, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJIV SAXENA, ADVOCATE & MS SUMANGALA SAXENA, ADVOCATE DEPARTMENT BY : SHRI RAVI JAIN, CIT, DR DATE OF HEARING : 26.07.2016 DATE OF PRONOUNCEMENT : 28.07.2016 ORDER PER R.S. SYAL, AM: THESE FOUR APPEALS BY THE ASSESSEE RELATE TO THE A SSESSMENT YEARS 2002-03 TO 2005-06. SINCE SOME OF THE ISSUES RAISE D IN THESE APPEALS ARE ITA NOS.3101 TO 3104/DEL/2011 2 COMMON, WE ARE, THEREFORE, PROCEEDING TO DISPOSE TH EM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ASSESSMENT YEAR 2002-03 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WAS INCORPORATED ON 4.7.2001. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT ON 9.12.2005 AT THE BUSINES S PREMISES OF THE ASSESSEE COMPANY AS WELL AS AT THE RESIDENCES OF IT S DIRECTORS. NOTICE U/S 153A WAS ISSUED ON 13.8.2007 REQUIRING THE ASSESSEE TO FILE ITS RETURN OF INCOME. THE ASSESSEE FILED RETURN FOR THE A.Y. 200 2-03 ON 13.12.2007 DECLARING LOSS OF RS.3,12,877/-. NO UNDISCLOSED IN COME WAS OFFERED IN THE RETURN FILED PURSUANT TO NOTICE U/S 153A. SINC E THIS WAS THE FIRST YEAR OF THE OPERATIONS OF THE COMPANY, THE AO REQUIRED T HE ASSESSEE TO FURNISH COMPLETE DETAILS OF SHARE APPLICATION/CAPIT AL AMOUNTING TO RS.37,74,000/-. THE ASSESSEE DID NOT FURNISH ANY DE TAILS, SUCH AS, THE NAMES AND ADDRESSES OF THE PERSONS WHO APPLIED FOR THE SHARE CAPITAL. IN THIS BACKDROP OF THE FACTS, THE AO MADE ADDITION OF RS.37.74 LAC AS UNEXPLAINED SHARE APPLICATION MONEY. THE ASSESSEE FILED APPEAL AGAINST ITA NOS.3101 TO 3104/DEL/2011 3 THE ASSESSMENT ORDER FURNISHING CERTAIN DETAILS QUA THE ADDITION MADE BY THE AO. THE LD. FIRST APPELLATE AUTHORITY CALLED F OR THE REMAND REPORT FROM THE AO AND, THEREAFTER, THE COMMENTS OF THE AS SESSEE ON THE REMAND REPORT. ON APPRECIATION OF THE EVIDENCE BEF ORE HIM, THE LD. CIT(A) DELETED THE ADDITION OF RS.10,10,000/-, REP RESENTING THE RECEIPT OF SHARE APPLICATION MONEY FROM CERTAIN PARTIES WHO HAD CONFIRMED THE TRANSACTIONS. THIS RESULTED INTO SUSTENANCE OF ADDI TION TO THE TUNE OF RS.27.64 LAC AGAINST WHICH THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. THE REVENUES APPEAL FOR THE INSTANT YEAR WAS DISMI SSED EARLIER BECAUSE OF LOW TAX EFFECT. 3. APART FROM CERTAIN GROUNDS TAKEN IN THE MEMORAND UM OF APPEAL, THE ASSESSEE, DURING AN EARLIER HEARING BEFORE THE TRIBUNAL, RAISED AN ADDITIONAL GROUND, READING AS UNDER:- THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 153A/143(3) IS BAD IN LAW AND REQUIRED TO BE QUASHE D BECAUSE ADDITIONS MADE THEREIN ARE BASED ON NO INCRIMINATING MATERIAL FOUND DURING SEARCH IN THE C ASE OF THE ASSESSEE. ITA NOS.3101 TO 3104/DEL/2011 4 4. THIS AFORESAID GROUND WAS TAKEN UP FOR ADMISSION . AFTER ENTERTAINING ARGUMENTS FROM BOTH THE SIDES, THE BEN CH, VIDE ITS ORDER DATED 27 TH JANUARY, 2015, ADMITTED THE ADDITIONAL GROUND BUT ADJOURNED THE HEARING OF THE APPEAL AT THE REQUEST OF THE LD. DR. 5. THE LD. AR OPENED HIS ARGUMENTS ON THE ADDITIONA L GROUND BY SUBMITTING THAT THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) READ WITH SECTION 153A BE QUASHED BECAUSE THE ADDITION SUSTAINED IN THE FIRST APPEAL AMOUNTING TO RS.27.64 LAC IS NOT BASED ON ANY INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH AND, HENCE, THE SAME SHOULD BE DEL ETED. IN SUPPORT OF THE DELETION OF ADDITION, THE LD. AR RELIED ON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL). ON A SPECIFIC QUERY FROM THE BENCH, THE LD. AR SUBMITTED THAT THE ASSESSEE DID FILE ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WITHIN THE TIME PRESCRIBED U/S 139(1) OF THE ACT. HOWEVER, HE DID NOT HAVE ANY EVIDENCE TO SUBSTANTIA TE HIS CLAIM. THE LD. DR STRONGLY OPPOSED THE ARGUMENTS ADVANCED ON B EHALF OF THE ITA NOS.3101 TO 3104/DEL/2011 5 ASSESSEE BY SUBMITTING THAT EVEN THOUGH THERE IS NO REFERENCE IN THE ASSESSMENT ORDER TO ANY INCRIMINATING MATERIAL FOUN D DURING THE COURSE OF SEARCH RELATING TO THE ADDITION, BUT, IT COULD N OT BE CONCLUSIVELY SAID THAT THERE, IN FACT, DID NOT EXIST ANY INCRIMINATIN G MATERIAL. HE FURTHER SUBMITTED THAT THE RATIO OF THE JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA) WILL APPLY ONLY IN RESPECT OF THE ASSESSMENT YEARS WHOSE ASSESSMENT ALREADY STOOD COMPLETED BEFORE THE DATE OF SEARCH AND NOT THE ASSESSMENTS WHICH WERE PENDING ON THE DATE OF SEARC H. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 153A(1) PROVIDES THAT THE AO SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS I MMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR I N WHICH THE SEARCH IS CONDUCTED ETC. IN THE INSTANT CASE, SEARCH WAS CON DUCTED ON 9.12.2005. THUS, THE SIX ASSESSMENT YEARS COVERED U/S 153A ARE 2000-01 TO 2005- 06. FIRST PROVISO TO SECTION 153A(1) PROVIDES THAT THE AO SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESS MENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. THE YEAR UNDER C ONSIDERATION, NAMELY, ITA NOS.3101 TO 3104/DEL/2011 6 THE A.Y. 2002-03 IS COVERED WITHIN THE PRESCRIBED P ERIOD OF SIX ASSESSMENT YEARS AND, HENCE ITS ASSESSMENT WILL BE GOVERNED BY SECTION 153A. THE SECOND PROVISO TO THIS SECTION, WHICH IS RELEVANT FOR OUR PURPOSE, PROVIDES: THAT ASSESSMENT OR REASSESSMENT , IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SI X ASSESSMENT YEARS REFERRED TO IN THIS SUB-SECTION PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 .. SHALL ABATE. TAKING A HOLISTIC VIEW OF THE MANDATE OF SECTION 153A, WHICH IS RELEVANT FOR OUR PURPOSE, IT SURFACES THAT ASSESSMENT U/S 153A IS REQUIRED TO BE MADE FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED. SEPARATE ASSESSM ENTS ARE REQUIRED TO BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS. IF T HE ASSESSMENT FOR ANY OF THE SIX ASSESSMENT YEARS IS PENDING ON THE DATE OF SEARCH, SUCH PENDING ASSESSMENT SHALL ABATE AND THE AO WILL MAKE ONE ASSESSMENT U/S 153A FOR SUCH YEAR. CRUX OF THE MATTER IS THAT NEW ASSESSMENTS FOR EACH OF THE SIX ASSESSMENT YEARS ARE REQUIRED TO BE MADE U/S 153A NOTWITHSTANDING THE PENDENCY OR COMPLETION OF THE E ARLIER ASSESSMENTS FOR SUCH YEARS BEFORE THE DATE OF SEARCH. HOWEVER, THE SCOPE OF MAKING ITA NOS.3101 TO 3104/DEL/2011 7 ADDITIONS U/S 153A IN RESPECT OF SUCH SIX ASSESSMEN T YEARS UNDERGOES CHANGE DEPENDING UPON THE FACT WHETHER THE ASSESSME NT WAS COMPLETED OR NON-COMPLETED ON THE DATE OF SEARCH. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) HAS CLEARLY LAID DOWN THAT NO ADDITION CAN BE MADE TO THE INCOME ALREADY ASSESSED WHERE NO INCRIMINATING MATERIAL IS UNEARTHED DURING THE SEAR CH. ALBEIT THE LANGUAGE OF SECTION 153A DOES NOT EXPRESSLY PROVIDE FOR THE EXCLUSION OF ANY INCOME FROM THE SCOPE OF ASSESSMENT U/S 153A WHICH IS NOT BASED ON ANY INCRIMINATING MATERIAL IN RESPECT OF THE FIN ALIZED OR COMPLETED ASSESSMENTS, THE HONBLE HIGH COURT HAS TAKEN THIS VIEW IMPLIEDLY ON THE PREMISE THAT IF ORIGINAL ASSESSMENT WAS COMPLE TED BY THE AO BEFORE THE DATE OF SEARCH, THEN, ONCE AGAIN, HE SHOULD BE DEBARRED FROM EXAMINING THE PARTICULARS OF INCOME ALREADY DISCLO SED AND EXAMINED BY HIM IN THE EARLIER ASSESSMENT. THERE ARE TWO ASPEC TS IN THIS REGARD WHICH REQUIRE CONSIDERATION, NAMELY, THE COMPLETED OR NON -COMPLETED EARLIER ASSESSMENTS AND THE TYPES OF ADDITIONS. ITA NOS.3101 TO 3104/DEL/2011 8 7. WE HAVE NOTICED ABOVE THAT IN THE SCHEME OF ASS ESSMENT OF SEARCH CASES U/S 153A, THERE ARE SIX ASSESSMENT YEARS INVO LVED IN TOTAL. THERE CAN BE TWO TYPES OF ASSESSMENT YEARS, NAMELY, THE A SSESSMENT YEARS WITH COMPLETED ASSESSMENTS AND THE ASSESSMENT YEARS WITH NON-COMPLETED ASSESSMENTS. THE ASSESSMENT YEARS WITH COMPLETED A SSESSMENTS MEAN THE ASSESSMENT YEARS FOR WHICH EITHER THE ASSESSMEN TS WERE COMPLETED BY THE AO U/S 143(3) OR SECTION 144 BEFORE THE DATE OF SEARCH OR THE ASSESSMENT YEARS FOR WHICH THE REGULAR ASSESSMENTS WERE NOT TAKEN UP AFTER THE FILING OF THE RETURNS BY THE ASSESSEE AND FURTHER THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) EXPIRED ON THE DATE O F SEARCH. AS PER THE SCHEME UNDER THE ACT, A RETURN FILED BY THE ASSESSE E IS FIRST PROCESSED BY THE A.O. U/S 143(1)(A) IN WHICH TOTAL INCOME IS CO MPUTED AFTER MAKING THE SPECIFIED ADJUSTMENTS. AS PER CLAUSE (B), TAX A ND INTEREST, IF ANY, IS COMPUTED ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A). CLAUSES (D) AND (E) OF SECTION 143(1) PROVIDE THAT AN INTIMATION SHALL BE SENT TO THE ASSESSEE SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE ASSESSEE AND THE A MOUNT OF REFUND DUE TO THE ASSESSEE IN PURSUANCE OF THE DETERMINATION U NDER CLAUSE (C) SHALL ITA NOS.3101 TO 3104/DEL/2011 9 BE GRANTED TO THE ASSESSEE. PROCESSING OF THE RETUR N U/S 143(1) AND THE CONSEQUENTIAL ISSUING OF INTIMATION IS CONSTRUED AS PASSING OF THE ASSESSMENT ORDER EXCEPT WHERE A NOTICE U/S 143(2) I S ISSUED FOR A SCRUTINY ASSESSMENT U/S 143(3). IN A CASE, WHERE NO TICE U/S 143(2) IS ISSUED, THE PROCESSING OF RETURN U/S 143(1) AND THE CONSEQUENTIAL ISSUING OF INTIMATION DOES NOT AMOUNT TO PASSING OF THE ASS ESSMENT ORDER BECAUSE THE ASSESSMENT ORDER, IN SUCH CIRCUMSTANCES , IS PASSED AFTER DUE SCRUTINY U/S 143(3) OF THE ACT. THERE CAN BE ONLY ONE ASSESSMENT ORDER FOR ONE YEAR. THE NITTY GRITTY OF THE MATTER IS THA T WHERE NO NOTICE U/S 143(2) IS ISSUED, THE ISSUANCE OF INTIMATION, AFTER PROCESSING OF RETURN U/S 143(1), IS TREATED AS COMPLETION OF ASSESSMENT. HOW EVER, WHERE SUCH A NOTICE IS ISSUED, THE INTIMATION ISSUED U/S 143(1)( A) LOSES THE CHARACTER OF AN ASSESSMENT ORDER, WHICH IN THAT CASE, IS PASSED U/S 143(3) AFTER THOROUGH SCRUTINY. TO SUM UP, AN ASSESSMENT IS TERM ED AS COMPLETED ON THE PASSING OF AN ORDER U/S 143(3), BUT, IN A CASE, WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE, WHICH IS PROCESSED U/S 143(1 ), BUT NO FURTHER NOTICE U/S 143(2) IS ISSUED BEFORE THE STIPULATED PERIOD, THE INTIMATION SENT TO ITA NOS.3101 TO 3104/DEL/2011 10 THE ASSESSEE U/S 143(1) IS ALSO TREATED AS A COMPLE TED ASSESSMENT FOR THIS PURPOSE. 8. THE ASSESSMENT YEARS WITH NON-COMPLETED ASSESS MENTS MEAN THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS WERE PEN DING ON THE DATE OF SEARCH, THAT ARE ABATED IN TERMS OF THE EXPRESS PR OVISION OF THE SECOND PROVISO TO SECTION 153A. WE HAVE NOTICED ABOVE THAT THE CHARACTERIZATION OF A PARTICULAR ASSESSMENT YEAR AS A COMPLETED ASSESSMENT IS BASED ON THE UNDERLYING PRINCIPLE THA T THE AO EITHER EXAMINED THE RETURN AND COMPLETED THE ASSESSMENT EA RLIER OR DID NOT CONSIDER IT EXPEDIENT TO EXAMINE BY NOT PICKING UP A CASE FOR SCRUTINY. EXTENDING THE SAME LOGIC TO THE NON-COMPLETED ASSES SMENTS, THE ASSESSMENT YEARS FOR WHICH THE ASSESSEE DID NOT FIL E VALID RETURNS OF INCOME BEFORE THE DATE OF SEARCH WILL ALSO GET COV ERED WITHIN THE NON- COMPLETED ASSESSMENTS, BECAUSE THE AO NEVER GOT OPP ORTUNITY OF EXAMINING SUCH RETURN AND COMPLETING THE ASSESSMENT EARLIER BEFORE THE DATE OF SEARCH. ITA NOS.3101 TO 3104/DEL/2011 11 9. NOW WE COME TO THE SECOND ASPECT OF THE TYPES OF ADDITIONS. THERE CAN BE TWO BROAD CATEGORIES OF ADDITIONS THAT CAN B E MADE IN THE ASSESSMENT MADE U/S 153A. FIRST ARE THE ADDITIONS B ASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH (HEREINAFTER ALSO CALLED AS `THE ADDITIONS OF THE FIRST TYPE) AND SECOND ARE THE OTHER ADDITIONS NOT BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THAT IS, THE ADDITIONS ON THE BASIS OF THE DISCLOSED PARTICULARS OF INCOME AND THE MATERIAL PRODUCED BY THE ASSESSEE OR GATHERED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ETC. (H EREINAFTER ALSO CALLED AS `THE ADDITIONS OF THE SECOND TYPE). 10. WITH THE ADVENT OF THE JUDGMENT IN KABUL CHAWLA (SUPRA) , THE AOS POWER HAS BEEN CURTAILED IN MAKING ADDITIONS O F THE FIRST TYPE IN RESPECT OF THE COMPLETED ASSESSMENTS. PER CONTRA , IF THE ASSESSMENT FOR ANY OF THE SIX ASSESSMENT YEARS IS NOT COMPLETE ON THE DATE OF SEARCH, THEN THERE IS NO IMPEDIMENT ON THE AO TO RESTRICT T HE ADDITIONS ONLY TO THE FIRST TYPE. THUS, IN A CASE ALSO WHERE NO ORIGI NAL RETURN WAS FILED, THE AO WILL BE ENTITLED TO MAKE ADDITIONS, BOTH OF THE FIRST AND THE SECOND ITA NOS.3101 TO 3104/DEL/2011 12 TYPES. THE LD. AR VEHEMENTLY CONTENDED THAT THE AO CANNOT MAKE ADDITIONS OF THE SECOND TYPE U/S 153A EVEN IN THE C ASES OF NON- COMPLETED ASSESSMENT AT THE TIME OF SEARCH. IT WAS ARGUED THAT UNLESS SOME INCRIMINATING MATERIAL IS FOUND DURING THE COU RSE OF SEARCH, NO ADDITION CAN BE MADE EITHER IN THE CASE OF COMPLETE D ASSESSMENTS OR NON-COMPLETED ASSESSMENTS. THIS VIEW WAS CANVASSED BY RELYING ON PARA 37(V) OF THE JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA) , WHICH SAYS THAT : ` IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. WE DO NOT FIND ANY FORCE IN THIS ARG UMENT. IT IS CLEAR FROM THIS PARA ITSELF THAT ONLY THE COMPLETED ASSES SMENTS ARE REITERATED IN THE ABSENCE OF INCRIMINATING MATERIAL. THUS, IT IS PATENT THAT INSOFAR AS THE NON-COMPLETED ASSESSMENTS ARE CONCERNED, THE AD DITIONS CAN BE MADE ON THE BASIS OF SOME DISCLOSED OR UNDISCLOSED MATERIAL/EVIDENCE OTHER THAN THE INCRIMINATING MATERIAL. THIS POSITIO N BECOMES FURTHER CLEAR FROM PARA 37(VI) OF THE JUDGMENT, WHICH STATE S THAT : ` INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED , THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A ME RGES INTO ONE. ITA NOS.3101 TO 3104/DEL/2011 13 ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIA L EXISTING OR BROUGHT ON THE RECORD OF THE AO. THIS SHOWS THAT SUCH ASSESSMENTS ARE BASED NOT ONLY ON THE FINDINGS OF THE SEARCH, BUT ALSO AN Y OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. THE PO SITION THAT THE COMPLETED ASSESSMENTS ARE NOT TO BE INTERFERED UNLE SS SOME INCRIMINATING MATERIAL IS FOUND AND NOT THE PENDING ASSESSMENTS BECOMES MORE LUCID FROM PARA 37(VII), WHICH STATES IN UNAMBIGUOUS TERMS THAT : ` COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE CO URSE OF SEARCH . WHICH WERE NOT . ALREADY DISCLOSED OR MADE KNOWN I N THE COURSE OF ORIGINAL ASSESSMENT. WE, ERGO, JETTISON THE CONTEN TION THAT EVEN IN THE NON-COMPLETED ASSESSMENTS ON THE DATE OF SEARCH, AD DITIONS CAN BE MADE ONLY OF THE FIRST TYPE, THAT IS, FOR WHICH SOME INC RIMINATING MATERIAL IS FOUND. ITA NOS.3101 TO 3104/DEL/2011 14 11. THE OVERALL POSITION IS THUS SUMMARIZED THAT FOR THE ASSESSMENT YEARS HAVING COMPLETED ASSESSMENTS AS ON THE DATE O F INITIATION OF SEARCH, THE AO, IN MAKING ASSESSMENT U/S 153A, CAN MAKE ADDITIONS ONLY ON THE BASIS OF INCRIMINATING MATERIAL. YEARS HAVING COMPLETED ASSESSMENTS MEAN THE YEARS FOR WHICH EITHER THE ASS ESSMENTS WERE FORMALLY COMPLETED BEFORE THE DATE OF SEARCH OR TIM E LIMIT FOR ISSUING NOTICE U/S 143(2) WAS EXHAUSTED. FOR THE ASSESSMENT YEARS HAVING NON- COMPLETED ASSESSMENTS AS ON THE DATE OF INITIATION OF SEARCH, THE AO, IN MAKING ASSESSMENT U/S 153A, CAN MAKE ADDITIONS BOTH ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AND ALSO THE DISCLOSED OR UNDISCLOSED PARTICULARS OF INCOME AND THE MATERIAL PRODUCED BY THE ASSESSEE OR GATHERED BY THE AO DURING THE CO URSE OF ASSESSMENT ETC. YEARS HAVING NON-COMPLETED ASSESSMENTS MEAN TH E YEARS FOR WHICH EITHER THE ASSESSMENTS WERE FORMALLY PENDING ON THE DATE OF SEARCH OR NO VALID RETURNS WERE FILED BY THE ASSESSEE PRIOR TO T HE SEARCH. 12. ADVERTING TO THE FACTS OF THE INSTANT CASE AND THE LEGAL POSITION DISCUSSED ABOVE, WE AGREE, IN PRINCIPLE, WITH THE C ONTENTION OF THE LD. ITA NOS.3101 TO 3104/DEL/2011 15 AR THAT IF NO INCRIMINATING MATERIAL IS FOUND DURIN G THE COURSE OF SEARCH IN RESPECT OF ANY YEAR WITH COMPLETED ASSESSMENT, T HEN, NO FRESH ADDITION CAN BE MADE AND THE ASSESSMENT U/S 153A WILL BE A R EPETITION OF INCOME DETERMINED IN THE ALREADY CONCLUDED ASSESSMENT. HO WEVER, IN ORDER TO BE ELIGIBLE FOR THIS PREFERENTIAL TREATMENT, THE AS SESSEE NEEDS TO PROVE THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND FURTHER THAT HE HAD ALREADY FILED RETURN FOR SUCH A SSESSMENT YEAR AND NO ASSESSMENT WAS PENDING AS ON THE DATE OF INITIATION OF SEARCH. 13. IN SO FAR AS THE FINDING OF ANY INCRIMINATIN G MATERIAL DURING THE COURSE OF SEARCH QUA THE ADDITION SUSTAINED IN THE FIRST APPEAL AMOUNTI NG TO RS.27.64 LAC IS CONCERNED, WE FIND FROM THE ASSE SSMENT ORDER AS WELL AS THE IMPUGNED ORDER THAT THERE IS NO REFERENCE WH ATSOEVER TO ANY INCRIMINATING MATERIAL. THE LD. DR ALSO COULD NOT BRING TO OUR NOTICE ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH CASTING DOUBT ON THE GENUINENESS OF THE SHARE APPLICATION M ONEY AMOUNTING TO RS.27.64 LAC RECEIVED BY THE ASSESSEE. IN SUCH CIR CUMSTANCES, WE ARE SATISFIED THAT THE FIRST CONDITION FOR AVAILING THE PRIVILEGED TREATMENT IS ITA NOS.3101 TO 3104/DEL/2011 16 SATISFIED IN THE INSTANT CASE. AS REGARDS THE SECO ND CONDITION, NAMELY, THE COMPLETION OF ASSESSMENT FOR THE YEAR UNDER CON SIDERATION BEFORE THE DATE OF SEARCH, WE FIND THAT THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER ABOUT ANY ASSESSMENT FOR SUCH YEAR HAVING BEEN ALRE ADY COMPLETED BEFORE ISSUANCE OF NOTICE U/S 153A. FURTHER, OUR A TTENTION HAS NOT BEEN DRAWN TOWARDS ANY MATERIAL TO INDICATE THAT THE ASS ESSMENT FOR THE YEAR UNDER CONSIDERATION STOOD COMPLETED BEFORE THE DATE OF SEARCH. THE LD. AR HAS ALSO NOT BROUGHT TO OUR NOTICE A COPY OF THE RETURN FILED BY THE ASSESSEE U/S 139 BEFORE THE DATE OF SEARCH. IN SUC H A SITUATION, WE ARE UNABLE TO CONCLUSIVELY HOLD WHETHER THE ASSESSMENT FOR THE YEAR WAS COMPLETED OR NOT-COMPLETED ON THE DATE OF SEARCH IN TERMS OF OUR ABOVE DISCUSSION. AS SUCH, WE SET ASIDE THE IMPUGNED ORDE R AND REMIT THE MATTER TO THE FILE OF AO FOR FIRST ASCERTAINING THE FACTUM OF THE INSTANT YEAR, BEING A COMPLETED OR NON-COMPLETED ASSESSMENT YEAR AND THEREAFTER, DECIDE THE FATE OF ADDITION ACCORDINGLY AND IN LINE WITH THE DISCUSSION MADE ABOVE. NEEDLESS TO SAY, THE ASSESSE E WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD IN DETERMININ G THE ABOVE ASPECT OF THE MATTER. ITA NOS.3101 TO 3104/DEL/2011 17 14. IN THE RESULT, THE APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. ASSESSMENT YEAR 2003-04 15. THIS ASSESSMENT YEAR IS ONE OF THE SIX ASSESSME NT YEARS REFERRED IN SECTION 153A OF THE ACT. THE ASSESSEES SHARE CAPI TAL INCREASED FROM RS.1 LAC IN THE IMMEDIATELY PRECEDING YEAR TO RS.39 .11 LAC DURING THE YEAR UNDER CONSIDERATION. IN THE ABSENCE OF ANY AD EQUATE DETAILS FORTHCOMING FROM THE SIDE OF THE ASSESSEE, THE AO M ADE ADDITION OF RS.38.11 LAC. THE ASSESSEE FILED CERTAIN FRESH MAT ERIAL BEFORE THE LD. CIT(A), WHO CALLED FOR THE REMAND REPORT FROM THE AO. ON EXAMINATION OF THE ENTIRE MATERIAL AVAILABLE WITH H IM, THE LD. CIT(A) DELETED ADDITION OF RS.13 LAC, FOR WHICH CONFIRMATI ONS WERE ALREADY FILED AND ACCORDINGLY SUSTAINED THE REMAINING ADDITION AT RS.25.11 LAC. THE REVENUES APPEAL FOR THE INSTANT YEAR WAS DISMISSED EARLIER BECAUSE OF LOW TAX EFFECT. 16. THE ASSESSEE HAS RAISED ADDITIONAL GROUND ON TH E SAME LINES AS DISCUSSED ABOVE FOR THE A.Y. 2002-03. SIMILAR ARGU MENTS WERE ADVANCED BOTH BY THE LD. AR AND THE LD. DR. IT IS THE COMMON ITA NOS.3101 TO 3104/DEL/2011 18 SUBMISSION THAT THE FACTS AND CIRCUMSTANCES OF THIS LEGAL ISSUE ARE MUTATIS MUTANDIS SIMILAR TO THOSE FOR THE ASSESSMENT YEAR 2002-03. FOLLOWING THE VIEW TAKEN HEREINABOVE, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR DECI DING THE ISSUE IN CONFORMITY WITH OUR DIRECTIONS GIVEN FOR THE A.Y. 2 002-03. 17. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ASSESSMENT YEAR 2004-05 18. THE FACTS FOR THIS ASSESSMENT YEAR ARE ALSO SIM ILAR TO THE FOREGOING TWO ASSESSMENT YEARS. THE AO MADE AN ADDITION OF R S.6 LAC ON ACCOUNT OF UNEXPLAINED SHARE CAPITAL, WHICH GOT REDUCED TO RS.2 LAC IN THE FIRST APPEAL. THE REVENUES APPEAL FOR THE INSTANT YEAR WAS DISMISSED EARLIER BECAUSE OF LOW TAX EFFECT. THE ASSESSEE IS AGGRIEVE D AGAINST THE SUSTENANCE OF ADDITION TO THIS EXTENT. 19. THE LD. AR AGAIN PRESSED THE ADDITIONAL GRO UND BY CONTENDING THAT NO INCRIMINATING MATERIAL WAS FOUND IN THE COURSE O F SEARCH RELATING TO THE ADDITION OF RS.2 LAC REPRESENTING THE AMOUNT OF SHARE APPLICATION MONEY RECEIVED FROM SHRI MAGAN MURTI AND HENCE THIS ADDITION BE ITA NOS.3101 TO 3104/DEL/2011 19 DELETED. THIS WAS OPPOSED BY THE LD. DR WHO CONTEN DED THAT THE TIME LIMIT AVAILABLE FOR COMPLETION OF THE ASSESSMENT U/ S 153 FOR THIS YEAR WAS TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT Y EAR, MEANING THEREBY, UP TO 31.3.2007. SINCE THE SEARCH TOOK P LACE ON 9.12.2005, THE LD. DR CONTENDED THAT THIS ASSESSMENT YEAR SHOULD B E CONSIDERED AS A YEAR OF NON-COMPLETED ASSESSMENT AND, HENCE, THE PR EFERENTIAL TREATMENT OF MAKING ADDITIONS ONLY ON THE BASIS OF INCRIMINAT ING MATERIAL FOUND DURING THE COURSE OF SEARCH, SHOULD NOT BE EXTEND ED TO THE ASSESSEE. 20. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE MOOT QUESTION IS WHETHER T HIS IS A YEAR WITH COMPLETED OR NON-COMPLETED ASSESSMENT AS ON THE DAT E OF INITIATION OF SEARCH. THE LD. DR HARPED ON THE TIME LIMIT GIVEN U /S 153 FOR THE COMPLETION OF ASSESSMENT WHICH, IN HIS OPINION, IS DECISIVE TO CONCLUDE THAT IT WAS A CASE OF NON-COMPLETED ASSESSMENT. IN OUR CONSIDERED OPINION, THE VIEW PROPOUNDED BY THE LD. DR IS BERE FT OF FORCE. WE HAVE HELD SUPRA THAT THE DECISIVE TEST IS THE TIME LIMIT FOR ISSUI NG NOTICE U/S 143(2). THERE IS A MARKED DIFFERENCE BETWEEN T HE TIME LIMIT FOR ITA NOS.3101 TO 3104/DEL/2011 20 ISSUING NOTICE AS GIVEN IN SECTION 143(2) AND TIME LIMIT FOR COMPLETING ASSESSMENT U/S 153. OBVIOUSLY, NO ASSESSMENT CAN B E TAKEN UP WITHOUT ISSUING NOTICE WITHIN THE TIME PRESCRIBED U/S 143(2 ). IF THE TIME LIMIT FOR ISSUE OF NOTICE HAS EXPIRED, THE AO CANNOT TAKE UP SCRUTINY ASSESSMENT, EVEN IF THE TIME LIMIT FOR PASSING THE ORDER U/S 15 3 IS AVAILABLE. THUS, THE CRUCIAL FACTOR IS THE TIME LIMIT FOR ISSUING NOTICE AND NOT THE PASSING OF THE ASSESSMENT ORDER AS URGED BY THE LD. DR. 21. REVERTING TO THE FACTS FOR THE ASSESSMENT YE AR UNDER CONSIDERATION, WE FIND THAT SECTION 143(2) GIVES TIME LIMIT FOR IS SUING A NOTICE FOR THE INSTANT YEAR AS TWELVE MONTHS FROM THE END OF THE M ONTH IN WHICH THE RETURN IS FURNISHED. IF, ON THE DATE OF SEARCH, SU CH TIME LIMIT FOR ISSUING NOTICE U/S 143(2) ALREADY STOOD EXPIRED AND NO NOTI CE WAS ISSUED UP TO THAT DATE, THEN ASSESSMENT FOR SUCH YEAR CEASES TO BE NON-COMPLETED. THE DUE DATE FOR FILING RETURN BY COMPANY ASSESSEES FOR THE RELEVANT YEAR AS PER EXPLANATION TO SECTION 139(1) WAS 31 ST OCTOBER OF THE ASSESSMENT YEAR. THIS SHOWS THAT EVEN IF THE RETURN WAS FILED BY A COMPANY FOR THE A.Y. 2004-05 ON THE LAST DAY, NAMELY, 31.10.2004, N OTICE U/S 143(2) ITA NOS.3101 TO 3104/DEL/2011 21 COULD HAVE BEEN ISSUED MAXIMUM UP TO 31.10.2005. A S THE PRESENT SEARCH ACTION WAS TAKEN UP ON 9.12.2005 AND THE TIM E LIMIT FOR ISSUING NOTICE U/S 143(2) STOOD EXPIRED ON SUCH DATE, WE CA NNOT ACCEPT THE CONTENTION OF THE LD. DR IN TREATING THE ASSESSMENT FOR THIS YEAR AS NON- COMPLETED ON THE DATE OF INITIATION OF SEARCH. IN OTHER WORDS, THIS YEAR WILL BE CONSIDERED AS THAT OF A COMPLETED ASSESSMEN T PROVIDED THE ASSESSEE FILED A VALID RETURN U/S 139 OF THE ACT AN D NO ASSESSMENT PROCEEDINGS WERE ACTUALLY PENDING ON THE DATE OF SE ARCH. THE DISCUSSION MADE WHILE DECIDING THE A.Y. 2002-03 MUTATIS MUTANDIS APPLIES TO THE EXTANT YEAR AS WELL. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF AO FOR DECIDING THI S ISSUE IN CONFORMITY WITH OUR DIRECTIONS GIVEN FOR THE A.Y. 2002-03. 22. ON MERITS, THE LD. AR ARGUED THAT OUT OF TOTAL ADDITION OF RS.6 LAC MADE BY THE AO, THE LD. CIT(A) DELETED THE ADDITION OF RS.4 LAC, THEREBY SUSTAINING THE ADDITION AT RS.2 LAC, BEING THE AMOU NT OF SHARE APPLICATION MONEY RECEIVED FROM SMT. MAGAN MURTI. HE CONTENDED THAT CONFIRMATION FROM THIS SHARE APPLICANT WAS FILED DU RING THE COURSE OF ITA NOS.3101 TO 3104/DEL/2011 22 ASSESSMENT PROCEEDINGS AND, HENCE, THE ADDITION SHO ULD NOT HAVE BEEN MADE OR CONFIRMED. THE LD. AR INVITED OUR ATTENTIO N TOWARDS PAGE 35 OF THE PAPER BOOK, BEING, A COPY OF THE CONFIRMATION O F THIS PERSON. THIS WAS CONTROVERTED BY THE LD. DR WHO SUBMITTED THAT T HE ASSESSEE DID NOT FILE ANY CONFIRMATION BEFORE THE AO, EITHER DURING THE ASSESSMENT OR THE REMAND PROCEEDINGS. THAT WAS STATED TO BE THE REAS ON WHY THE REMAND REPORT, WHOSE COPY IS AVAILABLE ON PAGES 16 ONWARDS OF THE PAPER BOOK, DOES NOT CONTAIN ANY REFERENCE OF THE SO-CALLED CON FIRMATION FILED BY THE ASSESSEE. 23. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THOUGH A COPY OF C ONFIRMATION HAS BEEN PLACED ON PAGE 35 OF THE PAPER BOOK, BUT THE LD. AR FAILED TO DRAW OUR ATTENTION TOWARDS ACKNOWLEDGEMENT OF THIS CONFIRMAT ION BY THE OFFICE OF THE AO OR ANY COVERING LETTER FILED BEFORE THE AO W ITH THIS CONFIRMATION. EVEN THE CERTIFICATE GIVEN IN THE PAPER BOOK IS VAG UE INASMUCH AS IT HAS BEEN CERTIFIED THAT THE DOCUMENTS WERE FILED BEFORE THE LOWER AUTHORITIES WITH THE AO AND CIT(A). AS AGAINST THIS, THE REQUI REMENT IS TO ITA NOS.3101 TO 3104/DEL/2011 23 SPECIFICALLY MENTION AS TO WHICH DOCUMENTS WERE FIL ED BEFORE THE AO AND WHICH WERE BEFORE THE CIT(A). MOREOVER, WE FIN D THAT THE AO HAS SPECIFICALLY RECORDED IN THE ASSESSMENT ORDER THAT: THE ASSESSEE DID NOT FURNISH THE ADDRESS OF THE PERSON/PARTIES WHO HAVE CONTRIBUTED THE SHARE CAPITAL AND OTHER DETAILS AS REQUESTED VIDE POINT N O.17 OF QUESTIONNAIRE DATED 27.11.2007. IN OUR CONSIDERED OPINION, THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THIS ISSUE IS ALSO RESTORED TO T HE FILE OF AO FOR DECIDING AFRESH THE GENUINENESS OR OTHERWISE OF THE SHARE APPLICATION MONEY OF RS.2 LAC RECEIVED FROM MRS. MAGAN MURTI. HOWEVER, SUCH AN EXAMINATION WILL BE REQUIRED ONLY IF THE AO DECIDES THE LEGAL ISSUE AGAINST THE ASSESSEE BY FINDING THAT EITHER THE ASS ESSEE DID NOT FILE ANY VALID ORIGINAL RETURN FOR THE YEAR UNDER CONSIDERAT ION BEFORE THE DATE OF SEARCH OR THE ASSESSMENT WAS PENDING ON SUCH DATE. 24. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ASSESSMENT YEAR 2005-06 25. THIS IS THE LAST YEAR OF THE SIX ASSESSMENT YEA RS AS PER SECTION 153A OF THE ACT. THE AO MADE AN ADDITION OF RS.9,60,000 /- TOWARDS ITA NOS.3101 TO 3104/DEL/2011 24 UNEXPLAINED SHARE APPLICATION/SHARE CAPITAL. THE L D. CIT(A) GOT CONVINCED WITH THE SOURCE OF SHARE APPLICATION MONE Y AND GENUINENESS OF TRANSACTIONS FOR A SUM OF RS.7,50,000/- AND SUST AINED ADDITION FOR THE REMAINING SUM OF RS.2.10 LAC. THE REVENUES APPEAL FOR THE INSTANT YEAR WAS DISMISSED EARLIER BECAUSE OF LOW TAX EFFECT. 26. IN SUPPORT OF THE ADDITIONAL GROUND, THE LD. AR , AGAIN, SUBMITTED THAT NO INCRIMINATING MATERIAL WAS FOUND QUA THE RECEIPT OF SHARE APPLICATION MONEY OF RS.2.10 LAC AND, HENCE, SUCH A DDITION BE DELETED AT THE THRESHOLD. THIS WAS COUNTERED BY THE LD. DR. 27. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE LEGAL GROUND R AISED BY THE ASSESSEE CANNOT BE ALLOWED. EVEN IF IT IS PRESUMED FOR A MO MENT THAT THE ASSESSEE DID FILE ITS RETURN OF INCOME U/S 139(1) BEFORE THE DATE OF SEARCH, STILL, THIS YEAR CANNOT BE CONSIDERED AS A YEAR OF COMPLET ED ASSESSMENT ON THE DATE OF INITIATION OF SEARCH. IT IS SO FOR THE REA SON THAT THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2), BEING TWELVE MONTHS FRO M THE END OF THE MONTH IN WHICH RETURN IS FURNISHED, DID NOT EXPIRE ON THE DATE OF SEARCH, ITA NOS.3101 TO 3104/DEL/2011 25 WHICH TOOK PLACE ON 9.12.2005. THIS MEANS THAT THE AO HAD TIME FOR ISSUING NOTICE U/S 143(2) ON THE DATE OF SEARCH, TH EREBY, MAKING IT AS A YEAR OF NON-COMPLETED ASSESSMENT. AS SUCH, THE PREF ERENTIAL TREATMENT TO THE ASSESSEE CEASES TO BE AVAILABLE. IN SUCH A YEA R OF NON-COMPLETED ASSESSMENT, THE AO CAN CHARGE TO TAX BOTH THE TYPES OF INCOMES, VIZ., THE INCOME BASED ON INCRIMINATING MATERIAL AND THE INCO ME BASED ON DISCLOSED/UNDISCLOSED PARTICULARS ETC. OTHER THAN T HE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THUS, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FAILS. 28. COMING TO THE MERITS OF THE ADDITION OF RS.2.10 LAC, BEING THE AMOUNT OF SHARE APPLICATION MONEY RECEIVED FROM MS ARTI, WE FIND THAT THOUGH THE ASSESSEE FILED CONFIRMATION IN RESPECT O F THE AMOUNT ALLEGEDLY RECEIVED FROM MS ARTI, HOWEVER, IT IS RECORDED IN T HE REMAND REPORT THAT SHE STATED BEFORE THE AO TO HAVE NEVER INVESTED ANY MONEY WITH THE ASSESSEE AND FURTHER THAT A FRAUD WAS PLAYED BY THE COMPANY WITH THE INCOME-TAX DEPARTMENT BY FORGING HER SIGNATURE. THE LD. AR ASSAILED THE CORRECTNESS OF THE STATEMENT MADE BY MS ARTI AB OUT THE FORGING OF ITA NOS.3101 TO 3104/DEL/2011 26 HER SIGNATURE BY CONTENDING THAT SHE PAID SHARE APP LICATION MONEY THROUGH BANKING CHANNEL AND HER BANK PARTICULARS WE RE GIVEN IN THE CONFIRMATION FILED. HE ARGUED THAT THE AO DID NOT ALLOW ANY OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAMINE MS ARTI BEFORE ACC EPTING HER VACILLATING VERSIONS. THIS ARGUMENT WAS ALSO TAKEN UP BY THE AS SESSEE BEFORE THE LD. CIT(A). 29. WE FIND THAT THERE IS AN APPARENT CONTRADICT ION IN THE STAND OF MS ARTI. EVEN IF WE ASSUME THAT HER CONFIRMATION WAS FORGED BY THE ASSESSEE, BUT, THE FACT IS THAT THIS AMOUNT REACHED THE ASSESSEE THROUGH HER BANK ACCOUNT. IN VIEW OF THE ADMISSION BY MS A RTI BEFORE THE AO THAT SHE DID NOT INVEST ANY MONEY WITH THE ASSESSEE COMPANY, IT WAS INCUMBENT UPON THE AO TO ALLOW CROSS-EXAMINATION TO THE ASSESSEE, SO THAT THE TRUTH COULD BE BROUGHT OUT. THERE IS NO M ENTION ANYWHERE EITHER IN THE REMAND REPORT OR THE IMPUGNED ORDER THAT THE ASSESSEE WAS ALLOWED OPPORTUNITY TO CROSS-EXAMINE MS ARTI. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO ITA NOS.3101 TO 3104/DEL/2011 27 THE FILE OF AO FOR ALLOWING A CROSS-EXAMINATION OF MS ARTI TO THE ASSESSEE AND THEN DECIDE ABOUT THE FATE OF ADDITION . 30. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.07.201 6. SD/- SD/- [SUCHITRA KAMBLE] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 28 TH JULY, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.