ACIT, CC- 30, NEW DELHI V. VANSHI FARMS PVT. LTD., NEW DELHI

ITA 4056/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4336 (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: G
• 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; Documents seized; TDS
• Section: 153A; 143(1); 13; 153; 22; 153C; 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.4056/DEL/2017 ASSESSMENT YEAR: 2011-2012 ACIT, CENTRAL CIRCLE-30, NEW DELHI. VS. VANSHI FARMS PVT. LTD., 303, HIMLAND HOUSE, KARAMPURA COMMERCIAL COMPLEX, NEW DELHI. TAN/PAN: AAACP0431H (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. 21,65,41,000/-. I.T.A. NO.4056/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 THE A.O. TO DELETE THE ADDITION OF RS. 10,82,700/- AS UNEXPLAINED EXPENDIT URE 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 DEC ISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT W HICH 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 AT THE C ONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153C/153A W OULD ONLY MEAN UNDISCLOSED INCOME DISCOVERED FROM SEIZED / INCRIMI NATING 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. 2. FROM THE PERUSAL OF THE IMPUGNED ORDER AND THE GROUNDS RAISED BY THE REVENUE, IT IS SEEN THAT THE MAIN ISSUE I.T.A. NO.4056/DEL/2017 3 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 LEGAL THE AFORESAID L EGAL ISSUE ARE THAT THE ORIGINAL RETURN U/S.139(1) FOR THE ASS ESSMENT YEAR 2011-12 WAS FILED ON 30.09.2011 WHICH WAS DULY PROCESSED U/S.143(1). THEREAFTER A SEARCH AND SEIZU RE ACTION U/S.132(1) WAS CONDUCTED ON VARIOUS BUSINESS PREMIS ES OF PRAKASH INDUSTRIES LTD. ON 30.10.2012. AS PER THE ASSESSMENT ORDER, CERTAIN DOCUMENTS BELONGING TO TH E ASSESSEE, M/S. VANSHI FARMS PVT. LTD. WERE FOUND AN D ACCORDINGLY A SATISFACTION NOTE U/S 153C WAS RECORD ED BY THE ASSESSING OFFICER OF M/S. PRAKASH INDUSTRIES AND NO TICE U/S.153A READ WITH SECTION 153C WAS ISSUED ON 09.10 .2014. IN RESPONSE TO THE SAID NOTICE SAME RETURN WAS FILE D SHOWING NIL INCOME WHICH WAS FILED EARLIER. IN THE ASSESSME NT ORDER, THE ASSESSING OFFICER NOTED THAT ASSESSEE HAD SHOWN TO HAVE RECEIVED SHARE CAPITAL OF RS.55 LAC AND SHARE PREMI UM OF I.T.A. NO.4056/DEL/2017 4 RS.21,45,00,000/- AGGREGATING TO RS.22 CRORE FROM F OLLOWING TWO COMPANIES. S. NO. NAME AND ADDRESS NO. OF SHARE AMOUNT OF SHARE APPLICATION AMOUNT OF SHARE PREMIUM TOTAL AMOUNT INVESTED 1. ANSKRITI TIE- UP PVT. LTD. 498/4/1, RABINDRA SARANI, 8 SHYAMPUKUR, KOLKATA 2,70,000 27,00,000 10,53,00,000 10,80,00,000 2. SARVOTTAM COMMODITIES PVT. LTD. 13, K.B. SARANI, 2 ND FLOOR, ROOM NO.204A, KOLKATA 2,55,000 25,50,000 9,94,50,000 10,20,00,000 4. APART FROM THAT ASSESSING OFFICER ALSO NOTED THA T DURING THE RELEVANT YEAR ASSESSEE HAS RECEIVED AMOUNT FROM FOLLOWING CORPORATE SHARE APPLICANT ALSO:- S.NO. NAME AND ADDRESS AMOUNT OF SHARE APPLICATION 1. SARVOTTAM COMMODITIES PVT. LTD. 28,16,000 2. AMARJYOTI VANIJYA PVT. LTD. 37,25,000 5. THEREAFTER, THE ASSESSING OFFICER AFTER DETAILED DISCUSSION HAS MADE THE ADDITION OF RS.21,65,41,000 /- U/S.68 AND HAS ALSO ADDED ALLEGED BROKERAGE ON SUCH SHARE CAPITAL OF RS.10,82,700/- WAS TAKEN THE BROKERAGE @ 0.5% ON I.T.A. NO.4056/DEL/2017 5 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 ALSO SUBMITTED THAT IN TH E CASE BY ALL THE THREE SHARE APPLICANTS, THE PROCEEDINGS U/S .153C WAS CARRIED OUT WHEREIN SIMILAR ADDITION HAVE BEEN MADE IN THEIR HANDS OR SAME ISSUE HAS BEEN CONSIDERED AND NOTHING ADVERSE MATERIAL OR ADVERSE FINDING RELATING TO ASS ESSEE COMPANY HAS BEEN FOUND AND THEREFORE, IN THE HANDS OF THE ASSESSEE COMPANY SUCH AN ADDITION IS UNWARRANTED. 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: I.T.A. NO.4056/DEL/2017 6 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 ON 30.09.2011, DECLARING TOTAL INCOME OF RS. 94,68,485 /-. THE ASSESSMENT PROCEEDINGS U/S 143(1) OF THE ACT, WAS A LREADY COMPLETED IN THE CASE OF THE ASSESSEE. (II) SUBSEQUENTLY, SEARCH AND SEIZURE ACTION U/S 13 2 OF THE ACT, WAS INITIATED ON 30.10.2012 IN PRAKASH GROUP OF CAS ES. IN THE CASE OF THE ASSESSEE, NOTICE U/S 153C OF THE ACT, WAS IS SUED ON 09.10.2014, AFTER RECORDING REASONS ON 19.9.2014. I N THE REASONS RECORDED BY THE A.O., CERTAIN DOCUMENTS INVENTORIED AS ANNEXUREA- 1, A-3, A-5, A-7, A-12, A-28, BS-117, LPS-2/8 AND A -21 HAVE BEEN CONSIDERED. (III) IN THE ASSESSMENT PROCEEDINGS, THE A.O. HAS OBSERVED THAT ASSESSEE HAS RECEIVED SHARE CAPITAL / PREMIUM OF RS 10,80,00,000/- AND RS 10,20,00,000/- FROM SANSKRITI TIE UP PVT. LTD. AND SARVOTTAM COMMODITIES PVT. LTD. RESPECTIVE LY AND ALSO RECEIVED SHARE APPLICATION MONEY OF RS 28,16,000/- AND RS 37,25,000 FROM SANSKRITI TIE UP PVT. LTD. AND AMARJ OTI VANIJYA PVT. LTD. RESPECTIVELY, MAINLY KOLKATA BASED COMPANIES. THE A.O. HAS ASKED TO EXPLAIN THE SOURCE OF THE SAME. (IV) IN THE ASSESSMENT PROCEEDINGS, THE A.O. STATE D 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.4056/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 (V) IN THE ASSESSMENT ORDER, THE A.O. MENTIONED THA T 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 SE RVICES 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.4056/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 A NKIT NIVESH & MANAGEMENT PVT. LTD M/S SPRING MERCANTILE PVT. 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 AGARW AL M/S PRIME MERCANTILE PVT. LTD M/S ROTARY CLUB OF RENDEZVOUS 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 STATISFACTION NOTE DATED 19.9.2014, THE A.O. HAS MENTIONED ABOUT RELEVANT SEIZED PAPERS INV ENTORISED AS A- L, A-3, A-5, A-7, A-12, A- 21, A-28 AND BS-117 AND LPS-2/8, WHICH CONTAINS ROC, TDS RETURNS &BLANK CHEQUE BOOK FOR PA YMENT OF TAXES, FESS ETC., PERTAINS TO ASSESSEE. (VI) IN THE ASSESSMENT ORDER, THE A.O. STATED THAT 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. (VII) IN THE ASSESSMENT ORDER, THE A.O. STATED THA T THE ASSESSEE HAS FAILED TO PROVE THE CREDITS IN ITS BOOKS OF ACC OUNTS IN THE SHAPE OF SHARE CAPITAL/PREMIUM/SHARE APPLICATION MONEY. T HEREFORE, THE A.O. WAS OF THE VIEW THAT THE AMOUNT OF RS. 21,00,0 0,000/- AND RS. 65,41,000/- IS TREATED AS UNEXPLAINED AND MADE ADDI TION OF RS. 21.65 LACS IN THE HANDS OF THE ASSESSEE. (VIII) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS SUBMITTED THAT IT HAS RECEIVED RS.21,00,00,000/- FROM SHARE APPLICANT S TOWARDS I.T.A. NO.4056/DEL/2017 9 SHARE CAPITAL / SHARE PREMIUM WHICH INTER- ALIA INC LUDES RS. 10,80,00,000/- FROM M/S SANSKRITI TIE - UP PVT. LTD . AND RS.10,20,00,000/-, FROM M/S SARVOTTAM COMMODITIES P VT. LTD. THE APPELLANT COMPANY ALSO RECEIVED SHARE APPLICATION M ONEY OF RS. 28,16,000/- AND RS. 37,25,000/- FROM M/S SARVOTTAM COMMODITIES PVT. LTD. AND M/S AMARJOTI VANIJYA PVT. LTD. RESPEC TIVELY WHICH WERE REFUNDED DURING THE IMMEDIATE NEXT F.Y. 2011-1 2. THE APPELLANT FURTHER SUBMITTED THAT THESE INVESTOR COM PANIES, HAVE MADE INVESTMENT IN APPELLANT OUT OF SALE PROCEEDS O F SHARES HELD AS INVESTMENTS / STOCK AND FURNISHED ALL THE DETAIL S RELATING TO SALE OF SHARES, WERE FURNISHED BY INVESTOR COMPANIES IN THEIR ASSESSMENT PROCEEDING, AS UNDER:- (A) SALE BILL, (B) RELEVANT PORTION OF BANK STATEMENT SHOWING THE TRANSACTIONS, (C) DETAIL OF SHARES SOLD TO BUYER COMPANIES ALONG WITH THEIR PAN, ADDRESSES, NAME OF SCRIPTS SOLD, AMOUNT AND DA TE OF SALE. (IX) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS F URTHER SUBMITTED THAT THE A.O. HIMSELF CONCURRENTLY ASSESS ED THE CASES OF INVESTOR COMPANIES VIZ. M/S SANSKRITI TIE UP PVT. L TD. AND M/S SARVOTTAM COMMODITIES PVT. LTD. U/S 153C OF THE ACT , FOR THE A.Y. 2008-09 TO A.Y. 2012-13 AND MADE ADDITION OF ENTIRE SHARE CAPITAL / PREMIUM RECEIVED BY THESE COMPANIES IN A.Y. 2008- 09, IN THE HANDS OF RESPECTIVE COMPANIES, WHICH WAS ULTIMATE S OURCE OF INVESTMENT IN SHARE CAPITAL OF THE APPELLANT COMPAN Y DURING THE F.Y. UNDER CONSIDERATION. THEREFORE, ONCE THE SOURC E OF INVESTMENT IN SHARE CAPITAL OF THE APPELLANT COMPANY, HAS ALRE ADY BEEN ASSESSED AND ADDITION ON THE SOURCE OF INVESTMENT H AS ALSO BEEN MADE, MAKING ADDITION OF THE SAME AGAIN IN THE HAND S OF THE APPELLANT, IS BAD IN LAW, MOREOVER, THE A.O. HAS NO T MADE ANY ADDITION IN THE HANDS OF BOTH THE INVESTOR COMPANIE S FOR THE A.Y. I.T.A. NO.4056/DEL/2017 10 UNDER CONSIDERATION IN THE ASSESSMENT ORDER PASSED U/S 153C OF THE ACT, IN RESPECT OF AMOUNT CREDITED BY SALE OF I NVESTMENT AS HE HIMSELF ACCEPT THE GENUINENESS OF THE SALE OF INVES TMENT. (X) IN THE APPELLATE PROCEEDINGS, THE AR HAS FURTH ER SUBMITTED THAT CASES OF M/S AMARJOTI VANIJYA PVT. LTD. HAS CO NCURRENTLY ASSESSED BY THE A.O., U/S 153C OF THE ACT, FOR THE A.Y. 2007-08 TO A.Y. 2012-13 AND DULY VERIFIED THE SOURCE OF SHARE APPLICATION MONEY OF RS 37,25,000/- GIVEN TO THE APPELLANT, WHI CH WERE DULY REFUNDED DURING THE IMMEDIATE NEXT F.Y. 2011-12. 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 ISSUE OF SHARES& SHARE APPLICATION MONEY RECEIVED, WHICH WIL L SHOW THAT AMOUNT CREDITED IN THE BOOKS, ARE UNEXPLAINED. IT H AS ALSO BEEN SUBMITTED BY THE AR THAT THE STATEMENT RECORDED OF VARIOUS PERSONS, WERE BALD / IRRELEVANT AND VAGUE IN NATURE AS SHRI VED PRAKASH AGARWAL HIMSELF HAD NOT TAKEN THE NAME OF A PPELLANT COMPANY IN WHICH ACCOMMODATION OF ENTRIES RECEIVED. 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. (XI) IN THE APPELLATE PROCEEDINGS, THE AR HAS SUBM ITTED THAT IT IS CORROBORATED FROM THE DOCUMENTS SEIZED FROM THE PRE MISES OF THE I.T.A. NO.4056/DEL/2017 11 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. (XII) IN THE APPELLATE PROCEEDINGS, THE APPELLANT HAS 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 A S 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 OF DELHI IN THE CASE OF COMMISSIONER OF INCOME-TAX V. RAJ PAL BHATIA [2011] 333 ITR 315. (XIII) IN THE APPELLATE PROCEEDINGS, THE APPELLANT HAS FURTHER SUBMITTED THAT IN THE ASSESSMENT / REASSESSMENT UND ER THE PROVISIONS OF SECTION 153C R.W.S 153 A OF THE ACT, NO 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 I.T.A. NO.4056/DEL/2017 12 143(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 AVIEW 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. (XIV) 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 VANSHI FA RMS PRIVATE LIMITED, AS ANNEXURE A-21, WERE LYING FOR THE PURPO SE 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 RECEIVED AS SHARE CAPITAL / PREMIUM IN THE APPELLANT COMPANY. IT IS FURTHER SUB MITTED BY THE AR THAT STATEMENT OF SHRI VED PRAKASH AGARWAL, CHAI RMAN OF THE APPELLANT COMPANY, CANNOT BE CONSIDERED DOCUMENT S EIZED, AS CONTEMPLATED U/S 132 OF THE ACT. 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 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- 1, A-3, A-5, A-7, A-12, A- 2 1, A-28 AND I.T.A. NO.4056/DEL/2017 13 BS-117 AND LPS-2/8, WHICH CONTAINS THE TRIAL BALANC E, RESOLUTION, AUDITOR REPORTS, INCOME TAX RETRUNS, RO C, TDS RETURNS, CHEQUE BOOKS AND CERTIFIED COPY OF RESOLUT IONS PERTAINING TO THE ASSESSEE 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. 7.3 I HAVE CAREFULLY CONSIDERED ASSESSMENT ORDER, W RITTEN SUBMISSION, CASE LAWS RELIED UPON AND ORAL ARGUMENT S OF LD.AR. THE OBJECTIONS/ARGUMENTS OF THE APPELLANT ARE DISCUSSED AS UNDER:- (I) IN THIS CASE, ASSESSMENT U/S 153A/153C OF THE A CT, WAS COMPLETED VIDE ORDER DATED 31.3.2015, AT TOTAL INCO ME OF RS. I.T.A. NO.4056/DEL/2017 14 2,08,81,55,215/-, AS AGAINST RETURNED LOSS OF RS. 9 4,68,485/-, AFTER MAKING THE FOLLOWING ADDITIONS ON ACCOUNT OF: (A) UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT :RS.21,00,00,000 (B) SHARE APPLICATION MONEY/PREMIUM : RS.65,41,000/- (C) UNEXPLAINED EXPENDITURE ON ACCOUNT OF BROKERAGE @0.5% : RS.10,82,700/- TOTAL : RS.21,76,23,700 THEREFORE, IT IS SUBMITTED BY THE APPELLANT THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENT, NO ADDITION CAN BE MADE U/S 153A OF THE ACT, WHEN THE ASSESSMENT IS NOT ABATED. (II) IN THE APPELLATE PROCEEDINGS, FOR THE ABOVE GR OUNDS, 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 S UBMITTED 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.3, THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUND DURING SEARCH ACTION U/S 132 AND ALSO ASSESSMENT WAS NOT ABATED AT THE T IME OF INITIATION OF ACTION N/S 132 OF THE ACT, ON 30.10.2012, NO ADD ITION CAN BE MADE, IN THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT. THE FACTS OF I.T.A. NO.4056/DEL/2017 15 APPELLANT ARE, SQUARELY COVERED BY THE RATIOS LAID DOWN IN THE ABOVE 2 DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT OF D ELHI. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, MY CONSIDERED OPINION, NOW IT IS NOT REQUIRED TO ADJUDICATE THE GROUNDS NO. 5 & 6 AND THEREFORE, SAME 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 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 I.T.A. NO.4056/DEL/2017 16 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 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 I.T.A. NO.4056/DEL/2017 17 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 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 I.T.A. NO.4056/DEL/2017 18 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 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 I.T.A. NO.4056/DEL/2017 19 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) 10. THUS, IT IS A WELL SETTLED LAW IN VIEW OF THE FOLLOWING DECISION THAT NO ADDITION CAN BE MADE WHERE THE ASS ESSMENT I.T.A. NO.4056/DEL/2017 20 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 VIRTU AL 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: