Smt. Meena Rani Arora, New Delhi V. ACIT, New Delhi

ITA 392/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69252 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUJNAN PRASAD
• Keywords: Search and seizure; Opportunity of being heard
• Section: 143(3); 153A; 234B; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E: NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NOS:125/DEL/2013 (A.Y 2002-03) 388/DEL/2013 (A.Y 2003-04) 389/DEL/2013 (A.Y 2004-05) 390/DEL/2013 (A.Y 2005-06) 391/DEL/2013 (A.Y 2006-07) 392/DEL/2013 (A.Y 2007-08) MEENA RANI ARORA VS. ACIT 201, VIPPS CENTER, 2- CENTRAL CIRCLE-22 COMMUNIT CENTER NEW DELHI MASJID MOTH, G. K-II NEW DELHI AAKPA2806N (APPELLANT) (RESPONDENT) ASSESSEE BY :SHRI SALIL KAPOOR, ADV WITH S H ANKIT GUPTA, ADV REVENUE BY : SHRI GUJNAN PRASAD CIT(DR). ORDER PER BENCH: IN ALL THESE APPEALS PREFERRED BY THE ASSE SSEE THE FIRST APPELLATE ORDER HAS BEEN QUESTIONED ON THE FOLLOWING GROUNDS: - 1. THAT THE NOTICE ISSUED AND ASSES SMENT ORDER PASSED U/S 153A IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. ITA NOS. 388,389,390,391 &392/ DEL/2013 2 2. THAT THE ADDITION MADE BY THE AO IS NOT BASED ON AN Y INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. HENCE ASSESSMENT ORDER PASSED U/S 153A/143 (3) AND THE ADDITIONS/DISALLOWANCES ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 3.THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF TH E CASE, CIT(A) HAS ERRED IN LAW IN MAKING ADDITION U/S 153A AS NO DOCUMENT WAS FOUND AT THE PREMISES OF THE ASSESSEE DURING THE COURSE OF SEARCH. 4. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE AO HAS ERRED IN LAW AND ON FACTS IN MAKING THE ADDI TION OF RS.84,000/- FROM PROPERTY SITUATED AT SHIMLA AND RS. 1,26,000/- FROM PROPERTY SITUATED AT PITAMPURA, BY ESTIMATING THE ANNUAL LEASE VALUE U/S SECTION 22 R.W.S 23(4) OF THE INCOM E TAX ACT, 1981 AND CIT(A) HAS ERRED IN UPHOLDING THE SAME. 5. THAT CIT(A) HAS FAILED TO APPRECIATE THAT THE PR OPERTY AT SHIMLA IS NOT IN A USABLE CONDITION FOR RESIDENTIAL PURPOSE AND THE PROPERTY AT PITAMPURA IS SELF OCCUPIED BY THE A SSESSEE AS HER RESIDENCE AND THE ALV HAS BEEN WRONGLY ADDED. I N ANY CASE THE ESTIMATION OF THE ANNUAL LEASE VALUE OF BO TH THE PROPERTIES OF RS.3,00,000/- BY THE A.O IS HIGHLY EXC ESSIVE AND UNJUST. 6. THAT THE EXPLANATIONS GIVEN, EVIDENCE PRODUCED A ND MATERIAL PLACED AND MADE AVAILABLE ON RECORD HAVE N OT BEEN PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITION MADE. 7.THAT THE ADDITION MADE IS BASED ON MERE SURMISES AND CONJUNCTURES AND THE SAME CANNOT BE JUSTIFIED BY AN Y MATERIAL ON RECORD. 8. THAT INTEREST U/S 234A, 234B AND 234C OF THE INC OME TAX ACT, 1961 HAS BEEN WRONGLY AND ILLEGALLY CHARGED AN D HAS BEEN WRONGLY WORKED OUT. 9.THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER A ND/OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL AT OR BEF ORE THE TIME OF HEARING. ITA NOS. 388,389,390,391 &392/ DEL/2013 3 2. WE HAVE HEARD AND CONSIDERED THE ARGUME NTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. THE RELEVANT FACTS ARE THAT SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIE D OUT IN KOHINOOR FOODS LTD GROUP OF CASES ON 5/12/2007. A SEARCH WA RRANT WAS ISSUED AND EXCLUDED IN THE NAME OF THE ASSESSEE ALSO. NOT ICE U/S 153 A WAS ISSUED AND SERVED UPON THE ASSESSEE. IN RESPONSE T HERETO ASSESSEE FILED RETURNS OF INCOME. IN THE ASSESSMENT YEAR 2002-03 THE A.O NOTED FROM THE BALANCE-SHEET OF THE ASSESSEE THAT THE ASSESSEE OWNS TWO RESIDENTIAL HOUSE PROPERTIES, ONE AT PITAMPURA, DELHI AND THE O THER AT SHIMLA, HIMACHAL PRADESH. THE A.O ASKED THE ASSESSEE TO EX PLAIN AS TO WHY THE ANNUAL LETTING VALUE (ALV) OF ONE OF THE HOUSE PROP ERTY SITUATED AT DELHI OR SHIMLA MAY NOT BE ASSESSED ON NOTIONAL BAS IS. IN ABSENCE OF ANY RESPONSE, THE A.O INCOME FROM HOUSE AT PITAMPUR A, DELHI WAS TAKEN TO BE EXEMPT AND ALV OF THE PROPERTY AT SHIML A IN RESPECT OF WHICH BENEFIT WAS TAKEN BY THE ASSESSEE U/S 23(2) W AS COMPUTED AS HAVING BEEN DEEMED TO BE LET OUT. HE TOOK THE ALV OF SHIMLA PROPERTY AT RS.1,20,000/- AND ADDITION OF RS.84,000(RS.1,20,000 /-) RS.36,000 I.E. 30% DEDUCTION U/S 24) WAS MADE. 3. DURING THE ASSESSMENT YEAR 2003-04 THE ASSESS EE HAD PURCHASED ONE MORE HOUSE PROPERTY AT RAJ NIWAS MARG, DELHI. IN TH E ASSESSMENT YEAR 2003-04 DURING ASSESSMENT, THE ASSESSEE WAS ASKED T O EXPLAIN AS TO WHY THE ALV OF TWO OF THE HOUSE PROPERTY SITUATED AT RAJ NIWAS MARG, DELHI; PITAMPURA, DELHI OR SHIMLA MAY NOT BE ASSESSED ON NOTIONAL BASIS. IN ABSENCE OF REPLY THE A.O TOOK THE INCOME FROM HOUSE AT RAJ NIWAS ITA NOS. 388,389,390,391 &392/ DEL/2013 4 MARG, DELHI AS EXEMPT AND ANNUAL LETTING VALUE (ALV ) OF THE PROPERTIES AT PITAMPURA, DELHI AND SHILMA IN RESPEC T OF WHICH THE BENEFIT WAS TAKEN BY THE ASSESSEE UNDER SUB-SECTION (2) OF SECTION 23 WAS COMPUTED DEEMING THAT THE PROPERTY WAS TO BE LET OU T. THE A.O TOOK THE ALV OF HOUSE AT SHIMLA AT RS.1,20,000/- AND OF THE HOUSE SITUATED AT PITAMPURA, DELHI, IT WAS TAKEN AT RS.1,80,000/-. I N OTHER WORDS AN ADDITION OF RS.2,10,000/-(RS. 3,00,000/- RS. 90,000 I .E. 30% U/S 24) WAS MADE. THE AGGRIEVED ASSESSEE QUESTIONED THE SAME B EFORE THE LD. CIT(A) BUT SHE COULD NOT SUCCEED. 4. LIKEWISE, IN THE ASSESSMENT YEAR 2004- 05, THE ASSESSEE WAS ASKED BY THE A.O TO EXPLAIN AS TO WHY THE ALV OF TWO OUT OF THE THREE HOUSE PROPERTIES SITUATED AT DELHI AND SHIMLA MAY NOT BE ASSESSED ON NOTIONAL BASIS. THE A.O WAS OF THE VIEW THAT THE PROVISIONS OF SECTION 22 READ WITH SECTION 23(1) (A) OF THE I.T ACT ARE APPLICABL E IN THE CASE OF THE ASSESSEE SINCE PROPERTIES IN QUESTION WERE IN SELF USE AS NO RENTAL INCOME HAS BEEN DECLARED. IN ABSENCE OF REPLY OF THE ASSE SSEE THE A.O HELD THAT ALV OF THE PROPERTY AT PITAMPURA, DELHI, AND HOUSE AT SHIMLA SHALL BE COMPUTED AS HAVING BEEN DEEMED TO BE LET OUT. HE N OTED THAT THE ASSESSEE HAS SHOWN A HOUSE AT DELHI AS OCCUPIED BY HERSELF AND HER FAMILY. THE A.O TOOK ALV OF THE HOUSE AT PITAMPURA , DELHI, AT RS.1,80,000/-(RS.15,000/- PER MONTH) AND IN RESULT AN ADDITION OF RS.1,26,000/-(RS.1,80,000/-54,00,000/-I.E 30% DEDUCTI ON U/S 24) WAS MADE TO BE INCOME OF THE ASSESSEE. THE A.O ADOPTED THE ALV OF HOUSE AT SHIMLA AT RS.1,20,000/- AS DETERMINED DURING THE PREVIOUS YEAR AND IN ITA NOS. 388,389,390,391 &392/ DEL/2013 5 RESULT ADDITION OF RS.84,000/-(RS.1,20,000/- AND RS.3 6,000/- I.E. 30% DEDUCTION U/S 24) WAS MADE TO THE INCOME OF THE ASS ESSEE. 5. IN THE ASSESSMENT YEAR 2005-06 THE A.O NOTED THAT THE ASSESSEE HAD SHOWN ONE HOUSE AT RAJ NIWAS MARG, DELHI OCCUPI ED BY HERSELF AND HER FAMILY AND ANOTHER HOUSE AT PITAMPURA, DELHI, W AS SHOWN AS OCCUPIED BY HERSELF AND HER FAMILY IN EARLIER YEAR. IN ABSENCE OF ANY DETAIL THE A.O DETERMINED ALV OF THE HOUSE AT PITAM PURA, DELHI, AT RS.2,40,000/-(RS.20,000/- PER MONTH) AND IN RESULT AN ADDITION OF RS.1,68,000/- (RS.2,40,000-RS.72,000/- I.E. RS.30% DED UCTION U/S 24) WAS MADE TO THE INCOME OF THE ASSESSEE. THE AO TOOK TH E ALV OF HOUSE AT SHIMLA AT RS.1,80,000/- RESULTING IN AN ADDITION OF RS.1,26,000/- (RS.1,80,000-RS.54,000/- I.E. 30% DEDUCTION U/S 24 O F THE ACT.) 6. IN THE ASSESSMENT YEAR 2006-07 THE A.O NO TED THAT THE ASSESSEE HAD SHOWN HOUSE AT RAJ NIWAS MARG, DELHI AS OCCUPIED BY HERSELF AND HER FAMILY AND HOUSE AT PITAMPURA, DELHI, WAS SHOWN DURING THE YEAR. IN ABSENCE OF ANY DETAILS FURNISHED BY THE ASSESSEE , THE A.O TOOK THE ALV OF THE HOUSE AT PITAMPURA, DELHI, FOR SIX MONTH S AT RS.1,20,000/- RESULTING IN ADDITION OF RS.84,000/-(RS.1,20,000-RS. 36,000/- I.E. 30% DEDUCTION U/S 24) WAS MADE TO THE INCOME OF THE AS SESSEE. THE A.O TOOK THE ALV OF HOUSE AT SHIMLA AT RS.1,80,000/- RES ULTING IN THE ADDITION OF RS.1,26,000/-(RS.1,80,000-RS.54,000/- I. E. 30% DEDUCTION U/S 24) WAS MADE. 7. IN THE ASSESSMENT YEAR 2007-08 THE A SSESSEE HAD SHOWN ONE HOUSE AT RAJ NIWAS MARG, DELHI OCCUPIED BY HERSELF A ND HER FAMILY. AS DISCUSSED EARLIER THE HOUSE PROPERTY AT PITAMPURA, DELHI, WAS DECLARED ITA NOS. 388,389,390,391 &392/ DEL/2013 6 SOLD DURING THE ASSESSMENT YEAR 2006-07. THE A.O A CCORDINGLY TOOK THE ALV OF HOUSE AT SHIMLA AT RS.1,80,000/- RESULTING IN ADDITION OF RS.1,26,000/- (RS.1,80,0000 -RS.54,000/- I.E 30% DEDUC TION U/S 24). 8. IN ALL THE ABOVE ASSESSMENT YEARS TH E ASSESSEE COULD NOT GET RELIEF FROM THE FIRST APPELLATE AUTHORITY HENCE SHE IS IN APPEAL BEFORE THE TRIBUNAL. BEFORE THE LD. CIT (A) THE ASSESSEE HAD ALSO QUESTIONED THE ACTION OF THE A.O IN ASSUMING JURISDICTION U/S 153A IN ABSENCE OF ANY UNDISCLOSED INCOME OR INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH U/S 132 OF THE ACT. RELIANCE WAS PLACED O N THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THIS REGARD IN THE C ASE OF THE SHRI ANIL KUMAR BHATIA VS. ACIT & ORS (2010) 1 ITR(TRIBUNAL) 4 84 BUT COULD NOT SUCCEED. THIS GROUND HAS BEEN AGAIN RAISED BEFORE THE TRIBUNAL. SINCE THE ISSUE RAISED IN GROUND NOS 1 TO 3 QUESTIONING T HE VERY JURISDICTION OF THE ASSESSING OFFICER TO INITIATE PROCEEDINGS U/S 1 53A OF THE ACT GOES TO THE ROOT OF THE MATTER WE PREFERRED TO ADJUDICATE U PON THIS ISSUE FIRST. THE CONTENTION OF THE LD. AR IN THIS REGARD REMAINED THAT DURING THE COURSE OF SEARCH NO INCRIMINATING DOCUMENT WAS FOUN D AT THE PREMISES OF THE ASSESSEE HENCE ASSESSMENT CANNOT BE FRAMED U /S 153 A OF THE ACT. RELIANCE WAS PLACED ON THE DECISION OF DELHI BENCH O F THE TRIBUNAL IN THE CASE OF SHRI ANIL KUMAR BHATIA VS. ACIT & ORS ( SUPRA). THE LD. CIT(A) DID NOT AGREE WITH THIS ARGUMENT OF THE ASSE SSEE AND HELD THE ASSESSMENT FRAMED U/S 153A OF THE ACT AS VALID WITH THIS FINDING THAT THE PLAIN READING OF THE PROVISIONS OF SECTION 153A INDICATES THAT THE ASSESSMENT U/S 153A IS MANDATORY EVEN WHERE NO INCR IMINATING MATERIAL IS FOUND IN THE COURSE OF SEARCH U/S 132 O F THE ACT OR IN THE CASE ITA NOS. 388,389,390,391 &392/ DEL/2013 7 OF REQUISITION MADE U/S 132 A. IN THIS REGARD HE A LSO NOTED THAT THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI ANIL KUMA R BHATIA HAS BEEN REVERSED BY THE HONBLE DELHI HIGH COURT IN ITA NO. 1626/2010 DATED 7/8/2012 IN THE APPEAL PREFERRED BY THE REVENUE. 9. BEFORE THE TRIBUNAL THE LD. A.R REITERAT ED THE ABOVE CONTENTIONS MADE BEFORE THE AUTHORITIES BELOW. HE SUBMITTED TH AT THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI ANIL KUMAR BHATIA (SUPRA) SUPPORTS THE CASE OF THE ASSES SEE ON THE ISSUE. HE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS:- JAI STEEL (INDIA) VS. ACIT(2013) 259 CTR (R AJ) 281 MGF AUTOMOBILES LTD. VS. ACIT ITA NOS. 421 2 & 4213/DEL/2011 (A.YS 2004-05 & 2005-06) ORDER DATED 28/6/ 2013 KUSUM GUPTA VS. DCIT & ORS ITA NOS. 4873/ DEL/2009 & ORS (A.YS 2003-04 & ORS) ORDER DATED 28/3/2013 . ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT 23 TAXMAN.COM 103 (MUMB) ACIT VS. PRATIBHA INDUSTRIES LTD. ITA NOS. 2197 TO 2199/MUMB/2008 CIT VS. MURLI AGRO PRODUCTS LTD. 28 TAXMAN .COM 246 (MUMB) ACIT VS. NARENDRA KUMAR GUPTA ITA NOS. 843 TO 848/HYD/2010 JCIT VS. SPECTRUM PEARL & EXPORTS (P) LTD I TA NOS. 2107 TO 2113/HYD/ 2011 DCIT VS. BMW INDUSTRIES LTD. ITA NOS. 882 & 883/KOL/2011 GURINDER SINGH BAWA VS. DCIT 28 TAXMAN.COM 3 28 (MUMB). ITA NOS. 388,389,390,391 &392/ DEL/2013 8 10. THE LD. D.R ON THE OTHER HAND TRIED TO JU STIFY THE ORDER OF THE AUTHORITIES BELOW AND PLACED RELIANCE ON THE DECISI ON OF HONBLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF GOPAL LAL BH ADRUKA & ORS VS. DCIT (2012) 77 DTR (AP) 146. 11. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISION RELIED UPON, WE FIND THAT HONBLE DELH I HIGH COURT IN THE CASE OF SHRI ANIL KUMAR BHATIA (SUPRA) HAS BEEN PLE ASED TO ALLOW THE APPEAL OF THE REVENUE AGAINST THE ORDER OF THE TRIB UNAL UNDER DISTINGUISHABLE FACTS. THE TRIBUNAL IN THAT CASE H AS HELD THAT SINCE THE RETURNS OF INCOME BY THE ASSESSEE FOR ALL THE SIX Y EARS BEFORE THE SEARCH TOOK PLACE WERE PROCESSED U/S 143(1) (A) OF THE ACT , THE PROVISIONS OF SECTION 153 A CANNOT BE INVOKED. THE HONBLE HIGH COURT DID NOT AGREE WITH THIS NOR IT AGREED WITH THE FINDING OF THE TRI BUNAL ON FACTS THAT NO MATERIAL WAS FOUND DURING THE SEARCH. THE ISSUE RA ISED BEFORE THE HONBLE HIGH COURT WAS AS TO WHETHER EVEN IF ASSESS MENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ANY OF THOSE SIX YEARS, EITHER U/S 143(1) (A) OR SECTION 143(3) PRIOR TO INITIATION OF SEARCH/REQUISITION, STILL ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROC EEDINGS U/S 153A WITHOUT ANY FETTERS AND REASSESS TOTAL INCOMES TAKI NG NOTE OF UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING SEARCH . THE HONBLE HIGH COURT OBSERVED THAT IN THE ENTIRE CASE AND ARGUMENT S BEFORE THE DEPARTMENTAL AUTHORITIES AS WELL AS THE TRIBUNAL HA D PROCEEDED ON THE BASIS THAT NO DOCUMENT EMBODYING THE TRANSACTION WI TH MOHINI SHARMA WAS RECOVERED FROM THE ASSESSEE. THE SAME WAS NOT CORRECT, THE REASON BEING THAT IN THE ORDER OF THE TRIBUNAL ITSELF IT W AS MENTIONED THAT NO ITA NOS. 388,389,390,391 &392/ DEL/2013 9 DOCUMENT MUCH LESS INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH OF THE ASSESSEES PREMISES, EXCEPT UNSIGNED UNDERTAKING FOR LOAN. THE HONBLE HIGH COURT TAKING NOTE OF THIS MATERIAL FACT HELD THAT IF IT IS NOT IN DISPUTE THAT THE DOCUMENT WAS FOUND IN THE C OURSE OF THE SEARCH OF THE ASSESSEE, THEN SECTION 153A IS TRIGGERED. O NCE SECTION IS TRIGGERED, IT IS MANDATORY FOR THE ASSESSING OFFICE R TO ISSUE NOTICES U/S 153A CALLING UPON THE ASSESSEE TO FILE RETURNS FOR THE SIX ASSESSMENT YEARS PRIOR TO THE YEAR IN WHICH THE SEARCH TOOK PL ACE. WE THUS FIND THAT IN THE CASE OF SHRI ANIL KUMAR BHATIA (SUPRA) THE H ONBLE DELHI HIGH COURT HAS NOT LAID DOWN ANY CLEAR RATIO THAT IN ABS ENCE OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH, NO ADDITION CAN BE MADE U/S 153A OF THE ACT WHERE ASSESSMENT HAS ALREADY BEEN FRAMED U/ S 143(3) OR RETURN FILED U/S 139 OF THE ACT HAS BEEN PROCESSED U/S 143 (3) (A) OF THE ACT. THE FINDING OF THE TRIBUNAL IN THE CASE OF SHRI ANI L KUMAR BHATIA (SUPRA) WAS THAT IN RESPECT OF AN ASSESSMENT U/S 15 3 A WHERE PROCESSING OF RETURN U/S 143(1) (A) STOOD COMPLETED IN RESPECT OF RETURNS FILED IN DUE COURSE BEFORE SEARCH AND NO MATERIAL IS FOUND I N SEARCH THEREAFTER, NO ADDITION CAN BE MADE. THE HONBLE DELHI HIGH CO URT WAS PLEASED TO HOLD THAT WHERE ASSESSMENT ORDER HAD ALREADY BEEN P ASSED IN RESPECT OF ALL IRONY OF THOSE SIX YEARS EITHER U/S 143 (1) (A ) OR SECTION 143(3) PRIOR TO INITIATION OF SEARCH/REQUISITION, STILL ASSESSIN G OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS U/S 153A WITHOUT ANY FE TTERS AND REASONS, TOTAL INCOME TAKING NOTE OF UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING SEARCH. WE FIND IT PERTINENT TO NOTE OVER H ER THAT IN THAT CASE BEFORE THE HONBLE HIGH COURT, THE HONBLE HIGH CO URT DID NOT AGREE ITA NOS. 388,389,390,391 &392/ DEL/2013 10 WITH THE FINDING OF THE TRIBUNAL ON FACT THAT NO MA TERIAL WAS FOUND DURING THE SEARCH, WHEREAS THE DOCUMENT EMBODYING T HE TRANSACTION WITH M WAS RECOVERED FROM THE ASSESSEE IN SEARCH BUT THE SAME WAS IGNORED BY THE TRIBUNAL ON THE PLEA THAT THE DOCUME NT WAS NOT SIGNED BY M. THE HONBLE HIGH COURT WAS PLEASED TO HOLD THAT MERE FACT THAT THE UNDERTAKING WAS NOT SINGED BY M DID NOT ABSOL VE THE ASSESSEE FROM THE DUTY OF SATISFACTORILY EXPLAINING THE POSSESSIO N OF THE DOCUMENTS. THE AMOUNT WAS STATED THEREIN TO HAVE BEEN ADVANCED IN CASH. THUS AN INFERENCE CAN BE DRAWN FROM THESE DECISION OF THE T RIBUNAL AND THE HONBLE HIGH COURT THAT THERE IS NO SCOPE OF DEBATE ON THE RATIO THAT TAKING NOTE OF UNDISCLOSED INCOME, IF ANY, UNEARTHE D DURING THE SEARCH AND EVEN IF THE ASSESSMENT ORDER HAD ALREADY BEEN P ASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER U/ S 143 (1) (A) OR SECTION 143(3) PRIOR TO INITIATION OF SEARCH /REQUISITION, STILL ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS U/S 153A WITH OUT ANY FETTERS AND REASSESSED TOTAL INCOME. THUS WE FIND THAT THE RE IS NO DISPUTE THAT PROVISIONS U/S 153A CAN BE INVOKED ONLY TAKING NOTE OF UNDISCLOSED INCOME, IF ANY UNEARTHED DURING THE SEARCH. IN THE CASE OF KUSUM GUPTA VS. DCIT & ORS ITA NOS. 4873/DEL/2009 & ORS ORDER D ATED 28 TH MARCH 2013, THE DELHI BENCH OF THE TRIBUNAL TO WHICH ONE OF US IS PARTY, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AFTER D ISCUSSING SEVERAL DECISIONS IN THIS REGARD INCLUDING DECISION OF SPEC IAL BENCH OF BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOB AL LOGISTICS LTD. VS. CIT 137 ITD 287 (MUM) (SB). THE ISSUE RAISED BEFOR E THE SPECIAL BENCH OF THE TRIBUNAL WAS AS TO WHETHER, THE SCOPE OF ASS ESSMENT U/S 153A ITA NOS. 388,389,390,391 &392/ DEL/2013 11 INCOMPASSES ADDITIONS, NOT BASED ON ANY INCRIMINATI NG MATERIAL FOUND DURING THE COURSE OF SEARCH. VIDE PARA NO. 58 REPR ODUCED BELOW, THE SPECIAL BENCH ANSWERED THE ISSUE AS UNDER:- 58. THUS, QUESTION NO.1 BEFORE US IS ANSWE RED AS UNDER:- (A) IN ASSESSMENTS THAT ARE ABATE D, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JUR ISDICTION CONFERRED ON HIM U/S 153A FOR WHICH ASSESSMENTS S HALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARA TELY: (B) IN OTHER CASES, IN ADDITION TO THE IN COME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 15 3A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS-(I) BOOKS O F ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEA RCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL AS SESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOV ERED IN THE COURSE OF SEARCH. 12. FOLLOWING THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE SAID CASE THE MUMBAI BENCH OF THE TRIBUNAL IN THE C ASE OF GURINDER SINGH BAWA VS. DCIT (SUPRA) HELD THAT IN SEARCH ASS ESSMENT PERTAINING TO SIX IMMEDIATELY PRECEDING ASSESSMENT YEARS WHICH ABATE DUE TO PENDENCY, THE ASSESSING OFFICER CAN MAKE ADDITIONS EVEN IF NO INCRIMINATING MATERIAL IS FOUND DURING SEARCH, BUT WHEN ALL ASSESSMENTS ARE COMPLETED AND NO ASSESSMENT HAS ABATED, THE ASS ESSING OFFICER CAN MAKE ADDITION ONLY ON THE BASIS OF EITHER INCRIMINA TING MATERIAL FOUND DURING SEARCH OR UNDISCLOSED INCOME/PROPERTY DISCLO SED DURING SEARCH. IN THAT CASE THE ADDITION MADE IN THE ASSESSMENT FR AMED U/S 153 A WAS DELETED AS BEING MADE WITHOUT JURISDICTION SINCE TH E SAID ASSESSMENT U/S 153A WAS MADE ON THE BASIS OF MATERIAL AVAILABL E IN RETURN OF INCOME AND THERE WAS NO REFERENCE TO ANY INCRIMINAT ING MATERIAL FOUND ITA NOS. 388,389,390,391 &392/ DEL/2013 12 DURING THE SEARCH AND SINCE NO ASSESSMENT WAS ABATE D. IN OTHER WORDS WHERE SEARCH HAS BEEN CONDUCTED, ISSUANCE OF NOTICE U/S 153A FOR FILING RETURN IS A VALID ACTION BUT IN SEARCH ASSESSMENT N O FRESH ADDITION THAN THOSE MADE IN THE ASSESSMENT ATTAINS FINALITY, CAN BE MADE IN ABSENCE OF MATERIAL FOUND AND SEIZED IN SEARCH. 13. BESIDES THE HONBLE RAJASTHAN HIGH C OURT RECENTLY ON 24/5/2013 IN THE CASE OF JAI STEEL VS. ACIT (SUPRA) HAS BEEN PLEASED TO HOLD THAT IN A CASE WHERE NOTHING INCRIMINATING IS FOUND THOUGH S. 153A WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT T O ASCERTAIN THE TOTAL INCOME IS REQUIRED TO BE DONE, THE SAME WOULD NOT R ESULT IN ANY ADDITION AND THE ASSESSMENTS MADE EARLIER MAY HAVE TO BE REITERATED. ARGUMENT OF THE COUNSEL THT THE A.O IS FREE TO DIST URB THE INCOME, EXPENDITURE OR DEDUCTION DE HORS ANY INCRIMINATING MATERIAL WHILE MAKING THE ASSESSMENT UNDER S. 153A IS NOT BORNE OU T FROM THE SCHEME OF THE SAID PROVISIONS. PROVISIONS OF SS. 153A TO 153 C CANNOT BE INTERPRETED TO BE FURTHER INNINGS FOR THE AO AND/OR THE ASSESSEE BEYOND THE PROVISIONS OF SS. 139, 147, AND 263-A HARMONIOU S CONSTRUCTION OF THE ENTIRE PROVISIONS OF S. 153A WOULD LEAD TO AN IRRES ISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED III THE CONTEXT OF ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSME NT. PROCEEDINGS WHICH DO NOT ABATE AS THEY ARE NOT PENDING ON THE D ATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND CAN BE TINK ERED ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE O F SEARCH OR REQUISITION OF DOCUMENTS-THEREFORE, IT IS NOT OPEN TO THE ASSESSEE TO SEEK DEDUCTION OR CLAIM RELIEF NOT CLAIMED BY IT IN THE ORIGINAL ASSESSMENT ITA NOS. 388,389,390,391 &392/ DEL/2013 13 WHICH ALREADY STANDS COMPLETED IN AN ASSESSMENT UND ER S. 153A MADE IN PURSUANCE OF A SEARCH OR REQUISITION. 14. THE DECISION OF HONBLE ANDHRA PRAD ESH HIGH COURT IN THE CASE OF GOPAL LAL BHADRUKA AND ORS VS. DCIT (SUPRA) RELIED UPON BY THE LD. D.R HAVING DISTINGUISHABLE FACTS ON THE ISSUE IS NOT HELPFUL TO THE REVENUE. THE HONBLE HIGH COURT DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO EVIDENCE BEFORE THE A.O TO CONCLUDE THAT ON-MONEY WAS RECEIVED BY A H IN RESPECT OF ALL THE SALE TRANSACTIONS. IT WAS NOTED BY THE HONBLE HIGH COURT THAT THERE WAS ADEQUATE MATERIAL BEFORE THE A.O IN THE FORM OF 8 SALE DEEDS AND IN T HE FORM OF REPLIES BY G TO QUESTIONS POSED TO HIM WITH REGARD TO RECEIPT OF ON-MONEY TO ENABLE A.O TO COME TO AN INFORMED CONCLUSION IN THI S REGARD. UNDER THIS FACTUAL PREMISES IT WAS HELD BY THE HONBLE HI GH COURT THAT FOR THE PURPOSE OF SECTION 153A/153C THE A.O CAN TAKE INTO CONSIDERATION MATERIAL OTHER THAN WHAT WAS AVAILABLE DURING THE S EARCH AND SEIZURE OPERATION FOR MAKING AN ASSESSMENT OF THE UNDISCLOS ED INCOME OF THE ASSESSEE. 15. NOW THE QUESTIONS BEFORE US AS TO WHAT(1) INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH TO J USTIFY THE ADDITION IN QUESTION AND SECONDLY (2) WHAT WAS THE STATUS OF AS SESSMENT I.E. PENDING A CONCLUDED FOR EACH OF THE ASST. YEARS INVOLVED ON THE DATE WHEN SEARCH TOOK PLACE. 16. IT APPEARS FROM THE ORDERS OF THE AUTHORITIES BELOW THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. ITA NOS. 388,389,390,391 &392/ DEL/2013 14 17. SO FAR AS THE STATUS OF ASSESSME NT FOR THE EACH OF THE ASST. YEARS AS ON THE DATE OF SEARCH I.E. 5/12/2007 IS CO NCERNED, IT IS AS UNDER:- A.Y RETURN U/S 139 FILED ON RETURN PROCESSED/ASSESSED DATE OF PROCESSING ASSESSMENT 2002-03 28.10.2002 NOT AVAILABLE NOT AVAILABLE 2003-04 18.11.2003 NOT AVAILABLE NOT AVAILABLE 2004-05 13.4.2005 NOT AVAILABLE NOT AVAILABLE 2005-06 30.11.2005 NOT AVAILABLE NOT AVAILABLE 2006-07 19.1.2007 NOT AVAILABLE NOT AVAILABLE SINCE COMPLETE INFORMATION ON QUESTION NO-2 IS NOT AVAILABLE ON THE RECORD AVAILABLE BEFORE THE TRIBUNAL, WE SET ASIDE THE MATTER TO THE FILE OF THE A.O TO DECIDE THE ISSUE AFRESH IN VIEW OF THE A BOVE CITED DECISIONS RELIED UPON BY THE LD. A.R ON THE BASIS OF GATHERING ABOVE INFORMATION ABOUT THE STATUS OF THE ASSESSMENT DURING EACH OF T HE ASST. YEARS UNDER CONSIDERATION AS ON THE DATE OF SEARCH I.E. 5/12/20 07 AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GR OUND NOS 1 TO 3 ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 18. SO FAR AS ADDITIONS QUESTIONED IN G ROUND NOS. 4 TO 7 ARE CONCERNED THE A.O HAS MADE THESE ADDITIONS BASED ON ALV OF DIFFERENT HOUSE PROPERTIES IN ABSENCE OF THE DETAILS WHICH TH E ASSESSEE DESPITE BEING ASKED FOR DID NOT FURNISH. ON SIMILAR BASIS THE LD. CIT(A) HAS UPHELD THE ADDITIONS STATING THAT NO EVIDENCE WAS F URNISHED IN SUPPORT. THE CONTENTION OF THE LD. A.R IN SUPPORT OF THESE GR OUNDS REMAINED THAT EXPLANATIONS GIVEN, EVIDENCE PRODUCED AND MATERIAL PLACED AND MADE AVAILABLE ON RECORD HAVE NOT BEEN PROPERLY CONSIDER ED (GROUND NO.5). THOUGH FATE OF THESE ADDITIONS DEPENDS UPON THE OUT COME OF THE ISSUE ITA NOS. 388,389,390,391 &392/ DEL/2013 15 RAISED IN GROUNDS NOS. 1 TO 3 DISCUSSED HEREINABOVE SET ASIDE FOR FRESH ADJUDICATION BEFORE THE A.O STILL IN THE INTEREST O F JUSTICE MATTER IS SET ASIDE TO THE FILE OF THE A.O TO DECIDE THE ISSUES R AISED IN THESE GROUNDS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. THE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 19. GROUND NOS. 8 IS RELATING TO CHA RGING OF INTEREST U/S 234A, 234B AND 234C OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE, HENCE DOES NOT NEED INDEPENDENT ADJUDICATION. 20. IN THE RESULT APPEAL ARE ALLOWED FOR STATICAL LY PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST/ 2013. SD/- SD/- (SHAMIM YAHYA) (I. C. SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 30 TH DAY OF AUGUST , 2013 R. NAHEED COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. AR, ITAT NEW DELHI . ITA NOS. 388,389,390,391 &392/ DEL/2013 16