ACIT, CC- 30, NEW DELHI V. ANKIT NIVESH & MANAGEMENT PVT. LTD., NEW DELHI

ITA 4054/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3893 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUSHMA SINGH
• Keywords: Unexplained cash credit; Bogus Share capital; Unexplained expenditure; Search and seizure; Document seized; Accommodation entries; Documents seized; TDS
• Section: 153A; 143(1); 143(2); 139(1); 13; 153; 22; 153C; 32; 147; 68; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.A. NO.4054/DEL/2017 ASSESSMENT YEAR: 2011-2012 ACIT, CENTRAL CIRCLE-30, NEW DELHI. VS. M/S. ANKIT NIVESH & MANAGEMENT PVT. LTD., 203 PUJA HOUSE, KARAMPURA COMMERCIAL COMPLEX, NEW DELHI. TAN/PAN: AACCA2546A (APPELLANT) (RESPONDENT) APPELLANT BY: MS. SHUSHMA SINGH, CIT-DR RESPONDENT BY: SHRI AJAY WADHWA, ADV. DATE OF HEARING: 18 06 2021 DATE OF PRONOUNCEMENT: 15 09 2021 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE IMPUGNED ORDER DATED 31.03.2017, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S. 153A/153C FOR THE ASSESSMENT YEAR 2011-12. IN THE GROUNDS OF APPEAL, THE REVENUE HAS RAISED FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE ADDITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS AMOUNTING TO RS. 6,56,85,362/-. I.T.A. NO.4054/DEL/2017 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING T HE A.O. TO DELETE THE ADDITION OF RS. 3,01,250/- AS UNEXPLAINED EXPEN DITURE ON ACCOUNT OF BROKERAGE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPREME COURT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING A T THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 15 3C/153A WOULD ONLY MEAN UNDISCLOSED INCOME DISCOVERED FROM SEIZED / INCRIMINATING MATERIAL. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRIC TIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153C/ 153A OF THE ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CO NCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A W OULD ONLY MEAN INCOME UNEARTHED DURING SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSI NG DEVELOPMENT COMPANY VS. DCIT DATED 09.08.2014 HAS HELD THAT TOT AL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTH ER INCOME. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDIC E TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. I.T.A. NO.4054/DEL/2017 3 2. FROM THE PERUSAL OF THE IMPUGNED ORDER AND THE GROUNDS RAISED BY THE REVENUE, IT IS SEEN THAT THE MAIN ISSUE INVOLVED IS WHETHER THE ADDITIONS MADE IN THE IMPUG NED ASSESSMENT ORDER ARE BASED ON ANY INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH OR NOT, AND THERE FORE, WHETHER THEY ARE COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA, REPORTED IN 380 ITR 573 (DELHI) , AND OTHER CATENA OF JUDGMENTS BY THE HONBLE JURISDICTIONAL HIGH COUR T AND CO-ORDINATE BENCH OF THE TRIBUNAL. NOWHERE THE REVE NUE HAS CONTENDED IN ITS GROUNDS OF APPEAL THAT ANY OF THE ADDITIONS MADE IN THE ASSESSMENT ORDER IS BASED ON INCRIMINAT ING DOCUMENTS FOUND DURING SEARCH OR PART OF SATISFACTI ON NOTE RECORDED U/S 153C. 3. THE FACTS IN BRIEF QUA THE AFORESAID LEGAL ISSUE ARE THAT THE ORIGINAL RETURN U/S. 139(1) FOR THE ASSESSMENT YEAR 2011- 12 WAS FILED ON 28.09.2011 WHICH WAS DULY PROCESSED U/S.143(1). THEREAFTER A SEARCH AND SEIZURE ACTION U/S.132 WAS CONDUCTED ON VARIOUS BUSINESS PREMISES OF PRAKA SH INDUSTRIES LTD. ON 30.10.2012. AS PER THE ASSESSMEN T ORDER, CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE, M/S. A NKIT NIVESH AND MANAGEMENT PVT. LTD. WERE FOUND AND ACCO RDINGLY A SATISFACTION NOTE U/S 153C WAS RECORDED BY THE AS SESSING OFFICER OF M/S. PRAKASH INDUSTRIES AND NOTICE U/S.1 53A READ WITH SECTION 153C WAS ISSUED ON 19.09.2014. IN RESP ONSE TO THE SAID NOTICE SAME RETURN WAS FILED SHOWING NIL I NCOME WHICH WAS FILED EARLIER. IN THE ASSESSMENT ORDER, T HE I.T.A. NO.4054/DEL/2017 4 ASSESSING OFFICER NOTED THAT ASSESSEE HAD SHOWN TO HAVE RECEIVED SHARE CAPITAL OF RS.6,02,50,000/ FROM M/S. VANSHI FARMS PVT. LTD. 4. APART FROM THAT, ASSESSING OFFICER ALSO NOTED TH AT DURING THE RELEVANT YEAR ASSESSEE HAS MADE INVESTMENT WITH M/S. PRAKASH INDUSTRIES LTD. AMOUNTING TO RS.10,89,64,61 7/- FOR STOCK-IN-TRADE AND SOLD/ADJUSTED STOCK OF RS.38,11,0 8,805/-. HOWEVER, NO ADDITION WAS MADE ON THIS POINT. 5. THEREAFTER, THE ASSESSING OFFICER AFTER DETAILED DISCUSSION HAS MADE THE ADDITION OF RS.6,56,85,362/ - U/S.68 AND HAS ALSO ADDED ALLEGED BROKERAGE ON SUCH SHARE CAPITAL OF RS.3,01,250/-/- WHICH WAS TAKEN THE BROKERAGE @ 0.5 % ON ALLEGED BOGUS SHARE APPLICATION. ONE OF THE MAIN AR GUMENT BEFORE THE LD. CIT (A) WAS THAT ENTIRE ADDITION MAD E BY THE ASSESSING OFFICER IS NOT BASED ON ANY INCRIMINATING MATERIAL, AND THEREFORE, NO ADDITION COULD HAVE BEEN MADE IN THE IMPUGNED ASSESSMENT YEAR AS THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011-12 HAD ATTAINED FINALITY AND I T WAS NOT AN ABATED ASSESSMENT IN TERMS OF 2 ND PROVISO TO SECTION 153A. APART FROM THAT, IT WAS ALSO SUBMITTED THAT I N THE CASE OF ALL THE THREE SHARE APPLICANTS, THE PROCEEDINGS U/S.153C WAS CARRIED OUT, WHEREIN SIMILAR ADDITION HAS BEEN MADE IN THEIR HANDS AND SAME ISSUE HAS BEEN CONSIDERED IN T HEIR HANDS AND NOTHING ADVERSE MATERIAL OR ADVERSE FINDI NG RELATING TO ASSESSEE COMPANY HAS BEEN FOUND AND THE REFORE, IN THE HANDS OF THE ASSESSEE COMPANY SUCH AN ADDITI ON IS UNWARRANTED. I.T.A. NO.4054/DEL/2017 5 6. LD. CIT(A) AFTER CONSIDERING THE ENTIRE GAMUT OF FACTS AND MATERIAL ON RECORD AND THE SUBMISSION MADE BY THE A SSESSING OFFICER AS WELL AS THE FINDING OF THE ASSESSING OFF ICER HELD THAT ADDITION MADE IN THE ASSESSMENT ORDER ARE NOT BASED ON ANY INCRIMINATING DOCUMENT AND RELYING UPON THE DECISIO N OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA , DELETED THE ADDITION. HE FURTHER HELD THAT STATEM ENT RECORDED U/S.132(4) IN SOME OTHER CASE CANNOT BE HE LD TO BE INCRIMINATING DOCUMENT QUA THE ASSESSEE AND FOR THI S PROPOSITION ALSO, HE RELIED UPON THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJ PAL BHATIA. TH E RELEVANT FINDING OF THE LD. CIT(A) ON THIS ISSUE READS AS UN DER: 5.4 I HAVE CAREFULLY CONSIDERED ASSESSMENT ORDER, W RITTEN SUBMISSION, SUBMISSION ON THE REPORT OF ITI OF INVE STIGATION BY APPELLANT, CASE LAWS RELIED UPON AND ORAL ARGUMENTS OF LD. AR. THE OBJECTIONS/ARGUMENTS OF THE APPELLANT ARE DISCUSSED AS UNDER:- (I) THE ASSESSEE HAS FILED RETURN OF INCOME U/S 139 OF THE ACT, ON 28.09.2011, DECLARING TOTAL INCOME OF RS. 78,97, 142/-. THE RETURN OF INCOME WAS PROCESSED U/S. 143(2) OF THE A CT, WAS ISSUED WITHIN THE PRESCRIBED TIME LIMIT. (II) SUBSEQUENTLY, SEARCH AND SEIZURE ACTION U/S 1 32 OF THE ACT, WAS INITIATED ON 30.10.2012 IN M/S. PRAKASH GROUP O F CASES. IN THE CASE OF THE ASSESSEE, NOTICE U/S 153C OF THE ACT, W AS ISSUED ON 09.10.2014 AND 12.02.2015, AFTER RECORDING REASONS. IN THE SATISFACTION RECORDED BY THE A.O., CERTAIN DOCUMENT S INVENTORIED AS ANNEXURE A-2, A-3, A-8, A-7, A-13, A-14, A-28 AND A -22 HAVE BEEN CONSIDERED. I.T.A. NO.4054/DEL/2017 6 (III) IN THE ASSESSMENT PROCEEDINGS, THE A.O. HAS OBSERVED THAT ASSESSEE HAS RECEIVED AGGREGATE SHARE APPLICATION M ONEY OF RS 6,02,50,000/-. THE ASSESSEE HAS ALSO TRADED ONLINE INTO SHARES OF M/S PRAKASH INDUSTRIES LTD. THROUGH STOCK EXCHANGE / BROKER VIZ M/S RELIGARE SECURITIES LIMITED WHICH RESULTING INT O PURCHASE OF STOCK IN TRADE OF SHARES OF RS 10,89,64,617/- AND S ALE OF STOCK IN TRADE OF SHARES OF RS 3,81,08,805/- AND CLOSING STO CK REMAINED OF RS 6,56,85,362/-. THEREFORE, THE A.O. HAS ASKED TO EXPLAIN THE SOURCE OF THE SHARE APPLICATION MONEY AND SALE OF I NVESTMENTS. (IV) IN THE ASSESSMENT ORDER, THE A.O. STATED THAT THE SHARE APPLICANTS WERE HAVING NO WORTH FOR SHARE CAPITAL & PREMIUM, THEREFORE, THE IDENTITY, CREDITWORTHINESS & GENUINE NESS OF TRANSACTIONS STANDS UNPROVED. THE A.O. FURTHER OBSERVED THAT BESIDE THE ABOVE, AN OTHER FUNDS RAISED BY SALE PROCEEDS OF INVESTMENTS WAS ALSO NOT GENUINE, WHICH IS UTILIZED FOR MAKING NET INVESTMENT OF RS 6 ,56,85,362/- WITH M/S PRAKASH INDUSTRIES LTD.. THEREFORE, THE A. O. WAS OF THE VIEW THAT THE AMOUNT OF RS. 6,56,85,362/- INVESTED IN SHARES OF M/S PRAKASH INDUSTRIES LTD. THROUGH FUNDS RAISED FR OM SALE OF INVESTMENT, WAS NOT GENUINE AND TREATED THE ENTIRE AMOUNT OF RS. 6,56,85,362/- AS UNEXPLAINED CREDIT IN THE HANDS OF THE ASSESSEE. (V) IN THE ASSESSMENT PROCEEDINGS, THE A.O. STATED THAT IN THE STATEMENT RECORDED 132(4) OF THE ACT, ON 31.10.2012 , OF SHRI VED PRAKASH AGARWAL, CHAIRMAN OF M/S PRAKASH INDUSTRIES LIMITED, HE HAD ADMITTED THAT UNACCOUNTED FUNDS OF M/S PRAKASH INDUSTRIES LTD., HAVE BEEN INVESTED IN ITS GROUP COMPANIES IN THE FORM OF SHARE CAPITAL / PREMIUM, THROUGH PAPER COMPANIES IN THE D IFFERENT FINANCIAL YEARS, AS UNDER:- I.T.A. NO.4054/DEL/2017 7 S. NO. NAME OF THE RECIPIENT F.Y. AMOUNT (IN CRORE ) 1. M/S. AMARJYOTI VANIJYA PVT. LTD. 2007-08 4.98 2. M/S. SANSKRITI TIE UP PVT. LTD. 2010-11 24.68 3. M/S. SARVOTTAM COMMODITIES PVT. LTD. 2010-11 26. 00 4. M/S. RAJNIL SALES PVT. LTD. 2007-08 8.32 5. M/S. ANKIT NIVESH MANAGEMENT PVT. LTD. 2007-08 9 .74 6. M/S. LOKPRIYA TRADING PVT. LTD. 2007-08 8025 TOTAL 81.97 (VI) IN THE ASSESSMENT ORDER, THE A.O. MENTIONED TH AT IN Q. NO. 36, ASKED IN RESPECT O BLANK CHEQUE BOOKS OF CERTAIN CO MPANIES IMPOUNDED FROM THE PREMISES OF M/S PRAKASL INDUSTRI ES LTD. DURING THE SEARCH ACTION, SHRI VED PRAKASH AGARWAL, CHAIRM AN OF M/S PRAKASH INDUSTRIES LIMITED, AT THE TIME OF RECORDIN G OF HIS STATEMENT ON 31.10.2012 AND CONCLUDED THAT THESE COMPANIES WE RE MANAGED AND CONTROLLED BY SHRI VED PRAKASH AGARWAL, THE CHA IRMAN OF M/S PRAKASH INDUSTRIES LTD. ON PERUSAL OF THE TABLE IN PARA 7 OF THE ASSESSMENT ORDER, THE DESCRIPTION OF SEIZED PAPERS, AS PER ANNEXURE A-15 TO A-25, ARE MENTIONED AND FOR SAKE O F CLARITY, SAME IS REPRODUCED AS UNDER:- S. NO. ANNEXURE NUMBER PAGES DESCRIPTION (ALL CHEQUES BOOKS OF DIFFERENT COMPANIES) 1 A-15 1-200 M/S PAREEK OVERSEAS PVT. LIMITED M/S EVERSHINE MERCANTILE PVT. LTD M/S SUN VIEW TRADING & INVESTMENT PVT LTD 2. A - 16 1 TO 140 M/S TOOLS INDIA PVT. LTD M/S SHREE LABH PAXMI CAPITAL SERVICES M/S SANSKRITI TIE - UP PVT. LTD 3. A - 17 1 TO 196 M/ S DEO STEEL & MINES PVT. LTD M/S AIR CON SYSTEMS PVT. LTD M/S VIKRAM AGARWAL (HUF) 4. A - 18 1 TO 145 M/S SARVOTTAM COMMODITIES PVT. LTD M/S WELTER SECURITIES LTD. 5. A - 19 1 TO 152 M/S PRAKASH ISPAT LTD SH. VED PRAKASH AGARWAL 6. A - 20 1 TO 51 M/S GMK BUILLDERS PVT. LTD I.T.A. NO.4054/DEL/2017 8 M/S DCEAN ISPAT PVT LTD 7. A - 21 1 TO 200 M/S VANSHI FARMS PVT LTD M/S AMARJYOTI VANIJYA PVT. LTD M/S DEO STEEL & MINES PVT. LTD 8. A - 22 1 TO 112 M/S ANKIT NIVESH & MANAGEMENT PVT. LTD M/S SPRING MERCANTILE P VT. LTD M/S MAKRANA TRADECOM PVT. LTD M/S CHAIBASA STEEL PVT. LTD. 9. A - 23 1 TO 173 M/S GOYAL PLASTIC PVT. LTD M/S PRAKASH CAPITAL SERVICES PVT. LTD 10 A - 24 1 TO 183 SH. KANHA AGARWAL M/S PRIME MERCANTILE PVT. LTD M/S ROTARY CLUB OF R ENDEZVOUS TRUST 11 A - 25 1 TO 180 M/S HI - TECH MERCANTILE PVT. LTD M/S VANSHI FARMS PVT. LTD BESIDES THE ABOVE, IN THE SATISFACTION NOTE DATED 1 9.9.2014, THE A.O. HAS MENTIONED ABOUT RELEVANT SEIZED PAPERS INV ENTORISED AS A- 2, A-3, A-8, A-13, A-14, A-28 AND A-22, WHICH CONTA INS, THE TRIAL BALANCE, RESOLUTION, AUDITOR REPORTS, INCOME TAX RE TURNS, CHEQUE BOOKS AND CERTIFIED COPY OF RESOLUTIONS PERTAINING TO THE ASSESSEE. (VII) IN THE ASSESSMENT ORDER, THE A.O. STATED THA T FROM MATERIAL FOUND DURING SEARCH ACTION U/S 132 OF THE ACT, WHIC H CONTAIN SIGNED BLANK CHEQUE BOOK OF VARIOUS COMPANIES, AT C ORPORATE OFFICE OF M/S PRAKASH INDUSTRIES LTD., SRIVAN, BIJWASAN, T HAT THE ASSESSEE COMPANY IS COMPLETELY CONTROLLED BY SHRI V ED PRAKASH AGARWAL, CHAIRMAN OF M/S PRAKASH INDUSTRIES LTD. (VIII) IN THE ASSESSMENT PROCEEDINGS, THE ASSESSIN G OFFICER HAS STATED THAT THE SHARE APPLICANT, WAS NOT HAVING ANY WORTH FOR INVESTING IN SHARE CAPITAL OF THE ASSESSEE, THEREFO RE, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS RE MAINED UNEXPLAINED. THEREFORE, THE ASSESSING OFFICER WAS O F THE VIEW THAT THE AMOUNT OF RS. 6,56,86,612/- IS TREATED AS UNEXP LAINED CASH CREDITS U/S 68 OF THE ACT AND MADE ADDITION OF RS. 6,56,86,612/-IN THE HANDS OF THE ASSESSEE. I.T.A. NO.4054/DEL/2017 9 (IX) IN THE APPELLATE PROCEEDINGS, THE AR SUBMITTE D THAT THE APPELLANT HAS RECEIVED SHARE APPLICATION MONEY OF R S 6,02,25,000/- FROM M/S VANSHI FARMS PVT. LTD. AND R S 25,000/- FROM M/S LOKPRIYA TRADING PVT. LTD. DURING THE F.Y. 2010-11. THE APPELLANT ALSO ONLINE TRADED INTO SECURITIES OF M/S PRAKASH INDUSTRIES LTD THROUGH BROKER VIZ. M/S RELIGARE SEC URITIES LIMITED IN DEMAT ACCOUNT. (X) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS SU BMITTED THAT IT HAS TAKEN LOAN OF RS 6 CRORE FROM M/S LOKPRIYA TRAD ING PVT. LTD WHICH IS UTILIZED FOR ONLINE TRADING INTO SHARES OF M/S PRAKASH INDUSTRIES LTD WHICH IS REFUNDED DURING THE SAME FI NANCIAL YEAR OUT OF SHARE APPLICATION MONEY RECEIVED. MOREOVER, THE A.O. HIMSELF ASSESSED THE CASE OF INV ESTOR COMPANIES AND LOAN PROVIDING COMPANIES UNDER SECTION 153C / 1 47 OF THE INCOME TAX ACT, 1961 FOR THE RESPECTIVE A.Y. THEREF ORE, SOURCE OF TRADING INTO SHARES OF M/S PRAKASH INDUSTRIES LTD T HROUGH STOCK EXCHANGE / BROKER VIZ. M/S RELIGARE SECURITIES LTD IN DEMAT ACCOUNT, SHOULD NOT DOUBTED AND SHOULD NOT BE TREAT ED AS UNEXPLAINED CREDIT. (XI) IN THE APPELLATE PROCEEDINGS, AR OF THE APPEL LANT HAS SUBMITTED THAT SINCE THE SHARES WERE IN RESPECT OF A LISTED COMPANY AND TRANSACTION WAS THROUGH REGISTERED BROKER IN DE MAT ACCOUNT, WHICH WAS AS PER THE RECOGNIZED STOCK EXCHANGE QUOT ED PRICE, THEN THERE WAS NO REASON TO HOLD SUCH NATURE OF TRANSACT ION AS NON- GENUINE. (XII) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS SUBMITTED THAT THE APPELLANT RECEIVED SHARE APPLICATION MONEY FROM M/S VANSHI FARMS PVT. LTD. OUT OF LOAN TAKEN FROM M/S ACG ASSO CIATED CAPSULES PVT. LTD. AND SUBMITTED ALL THE DETAILS RE LATING TO LOAN I.T.A. NO.4054/DEL/2017 10 TAKEN, WERE FURNISHED BY INVESTOR COMPANY IN THE AS SESSMENT PROCEEDING, AS UNDER: (A) LEDGER ACCOUNT, (B) RELEVANT PORTION OF BANK STATEMENT SHOWING THE TRANSACTIONS OF LOAN, (C) DETAIL OF TDS DEDUCTED THEREON AND TDS PAYMENT CHALLAN. (XIII) IN THE APPELLATE PROCEEDINGS, THE AR SUBMIT TED THAT THE CASE OF INVESTOR COMPANY I.E. M/S VANSHI FARMS PVT. LTD WAS ALSO ASSESSED BY THE A.O. U/S 153C OF THE ACT FOR THE RE SPECTIVE A.Y AND THE A.O. HAS DULY VERIFIED THE SOURCE OF SOURCE OF INVESTMENT IN SHARE APPLICATION MONEY OF THE APPELLANT WHICH IS F ROM LOAN TAKEN FROM M/S ACG ASSOCIATED CAPSULES PVT. LTD. IS ACCEP TED AS GENUINE. HOWEVER, A.O. TOOK ADVERSE VIEW ON THE BASIS OF POS T SEARCH ENQUIRIES IN THE CASE OF PRAKASH GROUP, BANK ENQUIR IES, ALL THE COMPANIES SHOW MEAGER PROFITS, ALL COMPANIES ARE SI TUATED AT TABLE PLACE NOT HAVING ANY INFRASTRUCTURES, APPELLANT FAI LED TO PRODUCE THE PERSON CONDUCTING THE OPERATIONS OF THESE COMPANIES AND ALSO THE STATEMENTS RECORDED OF VARIOUS PERSONS, RELATING TO SHARE CAPITAL. IN THIS REGARD, THE AR HAS SUBMITTED THAT THE A.O. FAI LED TO BRING ON RECORD ANY EVIDENCE, CONTRARY TO THE TRANSACTIONS O F SHARE APPLICATION MONEY RECEIVED AND SALE OF INVESTMENTS, WHICH WILL SHOW THAT AMOUNT CREDITED IN THE BOOKS FOR MAKING I NVESTMENT IN SHARES OF M/S PRAKASH INDUSTRIES LTD, ARE UNEXPLAIN ED. IT HAS ALSO BEEN SUBMITTED BY THE AR THAT THE STATEMENT RECORDE D OF VARIOUS PERSONS, WERE BALD / IRRELEVANT AND VAGUE IN NATURE AS SHRI VED PRAKASH AGARWAL HIMSELF STATED WRONG FACT THAT CAPI TAL INTRODUCED IN THE ASSESSMENT PROCEEDINGS IN THE FY 2007-08 WHI LE NO SHARE CAPITAL / PREMIUM RECEIVED BY M/S ANKIT NIVESH & MA NAGEMENT PVT. LTD. THE ALLEGED ENTRY OPERATOR HIMSELF NOWHER E ADMITS THAT HE HAS PROVIDED ACCOMMODATION ENTRIES TO THE APPELLANT DURING ANY FINANCIAL YEARS UNDER CONSIDERATION. I.T.A. NO.4054/DEL/2017 11 MOREOVER, STATEMENTS OF SHRI VED PRAKASH AGARWAL, C HAIRMAN OF M/S PRAKASH INDUSTRIES LTD. AND SHRI SHIV SHANKAR B ANKA, ALLEGED ENTRY OPERATOR HAVE RETRACTED THEIR STATEMENT BY FI LING LETTER BEFORE THE ADIT(INV.) ON 02.11.2012 AND 5.11.2012, THEREFO RE, THESE STATEMENT HAVE LOSES ITS EVIDENTIARY VALUE. (XIV) IN THE APPELLATE PROCEEDINGS, THE AR HAS SUB MITTED THAT IT IS CORROBORATED FROM THE DOCUMENTS SEIZED FROM THE PRE MISES OF THE APPELLANT THAT THEY ARE NOT INCRIMINATING IN NATURE , AS ALLEGED BY THE A.O. IN THE ASSESSMENT ORDER. IT IS FURTHER SUB MITTED BY THE APPELLANT THAT IT IS PROVED FROM THE MATERIAL FOUND DURING SEARCH AT CORPORATE OFFICE OF M/S PRAKASH INDUSTRIES LIMITED, SRIVAN, BIJWASAN, NEW DELHI, THAT THE INVESTOR COMPANIES, A RE COMPLETELY CONTROLLED BY SHRI VED PRAKASH AGARWAL, CHAIRMAN OF M/S PRAKASH INDUSTRIES LTD., WITHOUT CONSIDERING THE FACT THAT DATA INCLUDING CHEQUE BOOKS, SECRETARIAL AND OTHER RECORDS ETC. SE IZED DURING THE SEARCH OPERATION AT PREMISES OF THE APPELLANT, ARE THE STATUTORY AND OTHER RELATED DOCUMENTS OF THE APPELLANT AND OTHER PROMOTER GROUP COMPANIES AND LYING AT THE PREMISES OF THE APPELLAN T FOR THE PURPOSE OF FILING VARIOUS STATUTORY RETURNS OF THES E COMPANIES AND SIGNED BLANK CHEQUE BOOKS OF ITS GROUP COMPANIES, W ERE LYING FOR PAYING FEES, TAXES AND STATUTORY DUES ETC. THEREFOR E, MERE AVAILABILITY OF CERTAIN DOCUMENTS OF PROMOTER GROUP COMPANIES IN THE PREMISES OF THE APPELLANT, DOES NOT PROVE THAT THESE DOCUMENTS WERE USED TO MANIPULATE ACCOUNTS OF THE INVESTOR CO MPANIES. (XV) IN THE APPELLATE PROCEEDINGS, THE APPELLANT H AS FURTHER SUBMITTED THAT ADDITION MADE BY THE A.O., MERELY ON THE BASIS OF STATEMENT OF SHRI VED PRAKASH AGARWAL, CHAIRMAN OF THE APPELLANT COMPANY RECORDED U/S 132(4) DURING THE COURSE OF SE ARCH & SEIZURE OPERATION U/S 132 OF THE ACT, CANNOT BE CONSIDERED AS DOCUMENTS SEIZED AS CONTEMPLATED U/S 132 OF THE ACT IN ANY P ARLANCE. THE AR ALSO RELIED UPON THE JUDGMENT OF HONBLE JURISDICTI ONAL HIGH COURT I.T.A. NO.4054/DEL/2017 12 OF DELHI IN THE CASE OF COMMISSIONER OF INCOME-TAX V. RAJPAL BHATIA [2011] 333 ITR 315. (XVI) IN THE APPELLATE PROCEEDINGS, THE APPELLANT HAS FURTHER SUBMITTED THAT IN THE ASSESSMENT / REASSESSMENT UND ER THE PROVISIONS OF SECTION 153C R.W.S 153A OF THE ACT, N O PROCEEDINGS WAS PENDING AT THE TIME OF INITIATION OF ACTION U/S 132 OF THE ACT. IT IS FURTHER SUBMITTED THAT THE APPELLANT WAS ALREADY ASSESSED U/S 143(1) OF THE ACT AND THEREFORE, ASSESSMENT WAS NOT ABATED. CONSEQUENT TO THE SEARCH ACTION U/S 132 OF THE ACT, SUCH ASSESSMENT HAS TO BE MADE ON THE BASIS OF INCRIMINA TING MATERIAL FOUND DURING THE COURSE OF SEARCH. IF NO INCRIMINAT ING MATERIAL HAS BEEN FOUND AND THE A.O. HAD ALREADY TAKEN A VIEW ON SUCH PARTICULARS OF INCOME, DURING REGULAR ASSESSMENT PR OCEEDINGS, THEN IT IS NOT OPEN TO THE A.O. TO MAKE ANY ADDITION IN THE ASSESSMENT ORDER U/S 153C/153A OF THE ACT, IN ABSENCE OF ANY I NCRIMINATING MATERIAL FOUND IN THE SEARCH ACTION U/S 132 OF THE ACT. (XVII) IN THE APPELLATE PROCEEDINGS, AR HAS FURTHER SUBMITTED THAT THE SIGNED BLANK CHEQUE BOOKS OF THE PROMOTER GROUP COMPANIES, INCLUDING ONE OF THE INVESTOR COMPANY M/S ANKIT NIV ESH & MANAGEMENT PRIVATE LIMITED, AS ANNEXURE A-22, WERE LYING FOR THE PURPOSE OF PAYMENTS OF STATUTORY DUES, FEES, TAXES, ETC. THEREFORE, IT IS SUBMITTED THAT THESE SIGNED BLANK CHEQUE BOOKS, HAVE NO BEARING / DETERMINATION ON TRANSACTIONS OF ALLEGED AMOUNT R ECEIVED AS SHARE CAPITAL / PREMIUM IN THE APPELLANT COMPANY. I T IS FURTHER SUBMITTED BY THE AR THAT STATEMENT OF SHRI VED PRAK ASH AGARWAL, CHAIRMAN OF THE APPELLANT COMPANY, CANNOT BE CONSID ERED DOCUMENT SEIZED, AS CONTEMPLATED U/S 132 OF THE A CT. IN VIEW OF THE ABOVE SUBMISSION, IT IS ALSO SUBMITT ED BY THE APPELLANT THAT DECISION OF THE HON'BLE JURISDICTION AL HIGH COURT OF I.T.A. NO.4054/DEL/2017 13 DELHI IN THE CASE OF CIT VS. KABUL CHAWLA [2015] 61 TAXMANN.COM 412(DEL), IS SQUARELY APPLICABLE TO THE FACTS OF TH E APPELLANT. FROM THE ABOVE, FOLLOWING FACTS EMERGED: THE ASSESSMENT PROCEEDINGS WAS NOT PENDING AT THE T IME OF INITIATION OF ACTION U/S 132 OF THE ACT, 30.10.2012 , REFERENCE MADE BY THE A.O. IN THE ASSESSMENT ORDER, IS IN RESPECT OF ANNEXURE A- 2, A-3, A-8, A-13, A-14, A-2 8 AND A- 22, WHICH CONTAINS THE TRIAL BALANCE, RESOLUTION, A UDITOR REPORTS, INCOME TAX RETURNS, CHEQUE BOOKS AND CERTI FIED COPY OF RESOLUTIONS PERTAINING TO THE ASSESSEE OF CERTAI N COMPANIES AND NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE CO URSE OF SEARCH ACTION U/S 132 OF THE ACT, CARRIED OUT AT TH E PREMISES OF THE APPELLANT. FROM THE ABOVE FACTS, IT IS CLEAR THAT THE ADDITION MADE IN ASSESSMENT ORDER U/S 153C/153A OF THE ACT DATED 31. 3.2015, ARE NOT BASED ON ANY INCRIMINATING DOCUMENT. AS SUCH, F ACTS OF THE APPELLANT ARE SQUARELY COVERED BY THE RATIO LAID DO WN BY HON'BLE JURISDICTIONAL HIGH COURT OF DELHI, IN THE CASE OF CIT VS. KABUL CHAWLA(SUPRA). SIMILARLY, THE STATEMENT RECORDED U/ S 132(4) OF THE ACT, IS NOT A DOCUMENT, AS HAS BEEN HELD BY THE HON 'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF C IT VS. RAJ PAL BHATIA [2011], 333 ITR 315 (DELHI). IN VIEW OF THE ABOVE, I AGREE WITH THE ARGUM ENTS OF THE APPELLANT AND THEREFORE, NO ADDITION CAN BE MADE, I N ABSENCE OF ANY INCRIMINATING DOCUMENT. 6.1. APART FROM THAT, HE HAS AGAIN AFTER DETAILED D ISCUSSION HAS REITERATED THIS ISSUE WHILE DEALING ON MERITS V IDE PARAGRAPH 7.3. I.T.A. NO.4054/DEL/2017 14 I HAVE CAREFULLY CONSIDERED ASSESSMENT ORDER, WRITT EN SUBMISSION, CASE LAWS RELIED UPON AND ORAL ARGUMENTS OF LD. AR. THE OBJECTIONS/ARGUMENTS OF THE APPELLANT ARE DISCUSSED AS UNDER: - (I) ASSESSMENT U/S 153A/153COF THE ACT, WAS COMPLETED V IDE ORDER DATED 31.3.2015, AT TOTAL INCOME OF RS.5,80,8 9,470/-, AS AGAINST RETURNED LOSS OF RS. 78,97,142/-, AFTER MAK ING THE FOLLOWING ADDITIONS ON ACCOUNT OF:- UNEXPLAINED CASH CREDIT U/S 68 OF THE A CT RS.6,56,85,362/- ON ACCOUNT OF SHARE APPLICATION MONEY/P REMIUM UNEXPLAINED EXPENDITURE ON ACCOUNT OF BROKERAGE @0.5% : RS. 3,01,250/- TOTAL : RS. 6,59,86,612/- THEREFORE, IT IS SUBMITTED BY THE APPELLANT THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENT, NO ADDITION CAN BE MADE U/S 153 A OF THE ACT, WHEN THE ASSESSMENT IS NOT ABATED. (II) IN THE APPELLATE PROCEEDINGS, FOR THE ABOVE GROUND S, BESIDES GIVING VARIOUS ARGUMENTS AND SUBMISSIONS, THE APPEL LANT HAS ALSO RELIED UPON THE RATIO LAID DOWN IN THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF C IT VS. KABUL CHAWLA 2015, 61 TAXMANN.COM 412(DEL), SINCE NO INCR IMINATING DOCUMENT WAS FOUND DURING SEARCH ACTION U/S 132 AND ALSO ASSESSMENT WAS NOT ABATED. (III) IN THE APPELLATE PROCEEDINGS, IT IS FURTHER SUBMIT TED BY THE AR THAT THE STATEMENTS RECORDED DURING SEARCH ACTIO N U/S 132 OF THE ACT, CANNOT BE CONSIDERED AS A DOCUMENT FOUND & SEIZED. FOR THIS ARGUMENT, THE AR ALSO RELIED UPON THE RATIO LA ID DOWN IN THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT O F DELHI IN THE CASE OF CIT VS. RAJ PAL BHATIA [2011], 333 ITR 315 (DELH I). AS, I HAVE ALREADY HELD (SUPRA), WHILE DECIDING IN GROUND NO. 4, THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENTS F OUND DURING SEARCH ACTION U/S 132 AND ALSO ASSESSMENT WAS NOT A BATED AT THE I.T.A. NO.4054/DEL/2017 15 TIME OF INITIATION OF ACTION U/S 132 OF THE ACT, ON 30.10.2012, NO ADDITION CAN BE MADE, IN THE ASSESSMENT ORDER PASSE D U/S 153A OF THE ACT. THE FACTS OF THE APPELLANT ARE SQUARELY CO VERED BY THE RATIOS LAID DOWN IN THE ABOVE 2 DECISIONS OF THE HO NBLE JURISDICTIONAL HIGH COURT OF DELHI. IN VIEW OF THES E FACTS AND CIRCUMSTANCES, IN MY CONSIDERED OPINION, NOW IT IS NOT REQUIRED TO ADJUDICATE THE GROUNDS NO.6 AND 7 AND THEREFORE, SA ME ARE CONSIDERED AS DEEMED TO HAVE BEEN ALLOWED. 7. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WE LL AS THE MATERIAL PLACED ON RECORD, WE FIND THAT, FIRST OF A LL, NOWHERE IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS GIVE N ANY FINDING THAT IMPUGNED ADDITION IS BASED ON ANY INCR IMINATING DOCUMENT FOUND DURING THE COURSE OF SEARCH. WHATEVE R DOCUMENT WHICH HAS BEEN MENTIONED IN THE SEIZED DOC UMENT, ARE ROC, TDS RETURNS BANKS CHEQUE BOOKS FOR PAYMENT OF TAXES, FEES, ETC. PERTAINING TO THE ASSESSEE. OSTEN SIBLY, SUCH DOCUMENTS CANNOT BE HELD TO BE INCRIMINATING AND LD . CIT(A) HAS ALREADY NOTED THAT NONE OF THESE DOCUMENTS ARE THE BASIS OR PREMISE OF THE IMPUGNED ADDITIONS. ANOTHER FACT NOTED IN THE APPELLATE ORDER IS THAT THE ASSESSING OFFICER H IMSELF HAS CONCURRENTLY ASSESSED ALL THE INVESTOR COMPANIES R IGHT FROM THE ASSESSMENT YEARS 2009-10 TO 2012-13 AND SIMILAR ADDITIONS HAVE BEEN MADE IN RESPECT OF THE SAME AMO UNT IN THEIR HANDS WHICH AGAIN DOES NOT WARRANT ANY ADDITI ON IN THE HANDS OF THE ASSESSEE COMPANY. THE DOCUMENTS AS MEN TIONED IN THE SEIZED DOCUMENT HAS ALREADY BEEN HELD TO BE NOT INCRIMINATING IN NATURE WHICH HAS BEEN DULY EXPLAIN ED BY THE I.T.A. NO.4054/DEL/2017 16 ASSESSEE AND APPRECIATED BY THE LD. CIT(A) IN THE F OREGOING PARAGRAPHS AS NOTED ABOVE. APART FROM THAT, EVEN BE FORE US THERE HAS BEEN NO REBUTTAL THAT THE IMPUGNED ADDITI ONS ARE BASED ON ANY INCRIMINATING SEIZED DOCUMENTS WHICH I S ALSO EVIDENT FROM THE GROUNDS RAISED BY THE REVENUE WHER EIN IT HAS BEEN STATED THAT SLP HAS BEEN FILED AGAINST THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CH AWLA (SUPRA). FURTHER, ANY STATEMENT RECORDED OF A DIFFE RENT PERSON IN THE CASE OF ANOTHER SEARCH CANNOT BE HELD TO BE INCRIMINATING MATERIAL FOR THE PURPOSE OF ASSESSMEN T WITHIN THE SCOPE OF SECTION 153A AND SECTION 153C HAS HELD BY THE LD. CIT (A) FOLLOWING THE DECISION OF HONBLE JURIS DICTIONAL HIGH COURT. 8. IT HAS BEEN WELL SETTLED BY THE HONBLE SUPRE ME COURT IN CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (397 ITR 344) (SC) WHEREIN THE HONBLE APEX COURT UPHELD THE ORDER OF THE TRIBUNAL THAT ADDITION CANNOT BE MADE FOR THE ASSESSMENT YEARS FOR WHICH THERE ARE NO INCRIMINATI NG DOCUMENTS FOUND DURING THE COURSE OF SEARCH IN THE ASSESSMENTS FRAMED U/S 153C. THE HONBLE COURT UPHE LD THE ORDER OF THE TRIBUNAL IN THE FOLLOWING MANNER:- 16) IN THESE APPEALS, QUA THE AFORESAID FOUR ASSESS MENT YEARS, THE ASSESSMENT IS QUASHED BY THE ITAT (WHICH ORDER IS UPHELD BY THE HIGH COURT) ON THE SOLE GROUND THA T NOTICE UNDER SECTION 153C OF THE ACT WAS LEGALLY UNSUSTAIN ABLE. THE EVENTS RECORDED ABOVE FURTHER DISCLOSE THAT THE ISSUE I.T.A. NO.4054/DEL/2017 17 PERTAINING TO VALIDITY OF NOTICE UNDER SECTION 153C OF THE ACT WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL A ND THE TRIBUNAL PERMITTED THE ASSESSEE TO RAISE THIS ADDIT IONAL GROUND AND WHILE DEALING WITH THE SAME ON MERITS, ACCEPTED THE CONTENTION OF THE ASSESSEE. 17) FIRST OBJECTION OF THE LEARNED SOLICITOR GENERA L WAS THAT IT WAS IMPROPER ON THE PART OF THE ITAT TO ALLOW TH IS GROUND TO BE RAISED, WHEN THE ASSESSEE HAD NOT OBJECTED TO THE JURISDICTION UNDER SECTION 153C OF THE ACT BEFORE T HE AO. THEREFORE, IN THE FIRST INSTANCE, IT NEEDS TO BE DE TERMINED AS TO WHETHER ITAT WAS RIGHT IN PERMITTING THE ASSESSE E TO RAISE THIS GROUND FOR THE FIRST TIME BEFORE IT, AS AN ADDITIONAL GROUND. 18) THE ITAT PERMITTED THIS ADDITIONAL GROUND BY G IVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE BASIS OF FACTS ALREADY ON THE RECORD AND, THEREFORE , COULD BE RAISED. IN THIS BEHALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS WHICH WERE SEIZED DID NOT ESTABLISH ANY CO-RELATION, DOCUMENT- WISE, WITH THESE FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONING TO BE LOGICAL AND VALID, HAVING REGARD TO THE I.T.A. NO.4054/DEL/2017 18 PROVISIONS OF SECTION 153C OF THE ACT. PARA 9 OF THE ORDER OF THE ITAT REVEALS THAT THE ITAT HAD SCANNED THROUGH THE SATISFACTION NOTE AND THE MATERIAL WHICH WAS DI SCLOSED THEREIN WAS CULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMENT YEAR 2004-05 THEREAFTER. AFTER TAKING NOTE OF THE MATERIAL IN PARA 9 OF THE ORDER, THE POSITION T HAT EMERGES THEREFROM IS DISCUSSED IN PARA 10. IT WAS SPECIFICA LLY RECORDED THAT THE COUNSEL FOR THE DEPARTMENT COULD NOT POINT OUT TO THE CONTRARY. IT IS FOR THIS REASON THE HIGH COURT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF THE TRIBUNAL. THAT APART, LEARNED SENIOR COUNSEL APPEAR ING FOR THE RESPONDENT, ARGUED THAT NOTICE IN RESPECT OF AS SESSMENT YEARS 2000-01 AND 2001-02 WAS EVEN TIME BARRED. 19) WE, THUS, FIND THAT THE ITAT RIGHTLY PERMITTED THIS ADDITIONAL GROUND TO BE RAISED AND CORRECTLY DEALT WITH THE SAME GROUND ON MERITS AS WELL. ORDER OF THE HIGH CO URT AFFIRMING THIS VIEW OF THE TRIBUNAL IS, THEREFORE, WITHOUT ANY BLEMISH. BEFORE US, IT WAS ARGUED BY THE RESPONDENT THAT NOTICE IN RESPECT OF THE ASSESSMENT YEARS 2000-01 A ND 2001-02 WAS TIME BARRED. HOWEVER, IN VIEW OF OUR AFOREMENTIONED FINDINGS, IT IS NOT NECESSARY TO ENT ER INTO THIS CONTROVERSY. THE SEQUITUR OF THE JUDGMENT WHICH CAN BE CULLED OUT IS THAT, SEIZED INCRIMINATING MATERIAL HAS TO PERTAIN TO THE ASSESSMENT YEAR IN QUESTION AND HAVE CO-RELATION, D OCUMENT- WISE, WITH THE ASSESSMENT YEAR. THIS REQUIREMENT U/ S 153C IS ESSENTIAL AND BECOMES A JURISDICTIONAL FACT. IT IS AN ESSENTIAL I.T.A. NO.4054/DEL/2017 19 CONDITION PRECEDENT THAT ANY MONEY, BULLION OR JEWE LLERY OR OTHER VALUABLE ARTICLES OR THING OR BOOKS OF ACCOUN TS OR DOCUMENTS SEIZED OR REQUISITIONED SHOULD BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN S. 153A . THIS JUDGMENT OF THE HONBLE SUPREME COURT CLEARLY CLINCHES THE ISSU E IN FAVOUR OF THE ASSESSEE IN THIS CASE. 9. RECENTLY, HONBLE DELHI HIGH COURT IN CASE OF PCIT VS. ALLIED PERFUMES P LTD. (2021 ) 431 ITR 237 (DELHI) HELD AS UNDER:- 13. UPON READING OF THE AFORESAID EXTRACTED PORTION OF THE IMPUGNED ORDER, IT IS CLEARLY DISCERNABLE THAT THE ITAT HAS GIVEN A FINDING OF FACT THAT THE ASSESSMENTS MAKE NO REFERENCE TO THE SEIZED MATERIAL OR ANY OTHER MATERIAL FOR THE YEARS UNDER CONSIDERATION, THAT WAS FOUND DURING THE COURSE OF SEARCH, IN THE CASE OF THE ASSESSEE. MR. MARATHA IS ALSO UNABLE TO POINT OUT ANY INCRIMINATING MATERIAL RELATED TO THE ASSESSEE WHICH COULD JUSTIFY THE ACTION OF THE REVENUE. MERELY BECAUSE A SATISFACTION NOTE HAS BEEN RECORDED, CANNOT LEAD US TO REACH TO THIS CONCLUSION, ESPECIALLY WHEN THE REVENUE HAS NOT LAID ANY FOUNDATION TO SUPPORT THEIR CONTENTION. IN THE FACTUAL BACKGROUND AS EXPLAINED ABOVE, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153C CANNOT BE SUSTAINED IN VIEW OF THE DECISION OF THIS COURT IN THE CASE OF KABUL CHAWLA (SUPRA) I.T.A. NO.4054/DEL/2017 20 10. THUS, IT IS A WELL SETTLED LAW IN VIEW OF THE FOLLOWING DECISION THAT NO ADDITION CAN BE MADE WHERE THE ASS ESSMENT HAVE NOT ABATED AND WERE PENDING AT THE TIME OF SE ARCH, NO ADDITION CAN BE MADE WITHOUT ANY INCRIMINATING MATE RIAL. THUS, THE FINDING BY THE LD. CIT (A) WHICH IS BASED ON VARIOUS JUDICIAL PRINCIPLES AND ON THE FACTS OF THE CASE CAN NOT BE TINKERED WITH WITHOUT ANY CONTRARY MATERIAL OR REBU TTAL BY THE DEPARTMENT, THEREFORE SAME IS CONFIRMED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ABOVE DECISION WAS ANNOUNCED ON CONCLUSION OF VIRTUA L HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 15 TH SEPTEMBER, 2021 SD/- SD/- [DR. B.R.R. KUMAR] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 15/09/2021 PKK: