Sh. Roshan Lal Jindal, Chandigarh V. DCIT, Chandigarh

ITA 48/CHANDI/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5189 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Period of limitation; Validity of assessment; Time period of passing order; Revised return; Reason to believe
• Section: 143(3); 153A; 139(5); 147; 148; 132; 2; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA,ACCOUNTANT MEMBER ITA NOS. 48 TO 50/CHD/2014 A.YS: 2003-04 TO 2005-06 SHRI ROSHAN LAL JINDAL, VS THE DCIT, # 83, NAC MANI MAJRA, CENTRAL CIRCLE-1, CHANDIGARH. CHANDIGARH. PAN: AAMPJ1997R & ITA NOS. 55 & 56/CHD/2014 A.YS: 2003-04 & 2006-07 SHRI ASHOK JINDAL, VS THE DCIT, # 22, NAC MANI MAJRA, CENTRAL CIRCLE-1, CHANDIGARH. CHANDIGARH. PAN: AAMPJ1996Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI SUSHIL KUMAR,CIT-DR DATE OF HEARING : 29.03.2017 DATE OF PRONOUNCEMENT : 26.04.2017 O R D E R PER SANJAY GARG, JUDICIAL MEMBER THE ABOVE CAPTIONED APPEALS RELATING TO DIFFERENT ASSESSEES BUT HAVING IDENTICAL FACTS AND ISSUES HAV E BEEN PREFERRED AGAINST SEPARATE ORDERS OF THE LD. CIT (A PPEALS), GURGAON DATED 31.10.2013 FOR ASSESSMENT YEARS 2003- 04 TO 2006-07. THE SAME WERE HEARD TOGETHER AND ARE B EING DISPOSED OFF BY THIS COMMON ORDER. 2. THE ASSESSEES IN THESE APPEALS ARE AGGRIEVED BY THE ADDITIONS MADE BY THE ASSESSING OFFICER AND FURTHER CONFIRMED BY THE CIT (APPEALS) IN RELATION TO THE ASSESSMENT PROCEEDINGS DONE UNDER SECTION 143(3) RE AD 2 WITH SECTION 153A OF INCOME TAX ACT,1961 (IN SHORT THE ACT) PURSUANT TO SEARCH ACTION CONDUCTED ON 15.07. 2008. APART FROM CONTESTING THE ADDITIONS ON MERIT, THE ASSESSEES IN ALL THESE APPEALS HAVE TAKEN AN ADDITI ONAL LEGAL GROUND, WHICH READS AS UNDER : 'THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN CONFIRMING THE ADDITIONS ON VARIOUS ISSUES AS PER G ROUND OF APPEAL DESPITE THE FACT THAT NO INCRIMINATING EVIDENCE WAS FOUND DURIN G THE COURSE OF SEARCH CONDUCTED ON 15.07.2008 BY THE DEPARTMENT ON ACCOUN T OF VARIOUS ADDITIONS WHICH HAVE BEEN CHALLENGED BY THE ASSESSEE. 3. SINCE THIS LEGAL GROUND TAKEN BY THE ASSESSEES G OES TO THE ROOT OF THE CASES AND AFFECTS THE VERY VALID ITY OF THE ASSESSMENT ORDERS/ADDITIONS MADE, HENCE, WE TAKE UP THIS LEGAL ISSUE FIRST FOR ADJUDICATION. 4. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONSIDERATION ARE THAT A SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 15.07.2008 AT THE RESIDENTIAL AND BUSI NESS PREMISES OF THE JINDAL GROUP OF CASES, THE ASSESSEE S BEFORE US BEING PART OF THAT GROUP, WERE ALSO COVER ED. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT. THE ASSESSING OFFICER MAD E CERTAIN ADDITIONS IN THE SAID ASSESSMENT CARRIED OU T UNDER SECTION 153A OF THE ACT PURSUANT TO THE SEARCH ACTI ON. 5. IT HAS BEEN PLEADED BY THE LD. AR THAT SINCE THE ORIGINAL ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS UND ER CONSIDERATION HAD ALREADY ATTAINED FINALITY AND NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION 3 IN RELATION TO THE ABOVE STATED ASSESSMENT YEARS UN DER CONSIDERATION, HENCE, IN THE LIGHT OF THE DECISIONS OF VARIOUS COURTS INCLUDING THAT OF THE HONBLE BOMBAY HIGH COURT IN THE CASES OF ALL CARGO LOGISTICS ITA NO .1969 OF 2013 AND IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY), IN RELATION TO THE ASSESSMENTS W HICH HAVE ALREADY BEEN CONCLUDED, THE AO WAS PRECLUDED FROM MAKING ADDITIONS ON ANY OTHER ISSUE EXCEPT RELATING OR CONCERNING TO THE INCRIMINATING MATERIAL FOUND DURI NG THE SEARCH ACTION. HE THEREFORE, HAS SUBMITTED THAT SIN CE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION, HENCE, ANY ADDITIONS MADE BY THE AO IN ASSESSMENT PROCEEDINGS ON OTHER ISSUES WERE ILLEGAL AND BEYOND HIS JURISDICTION. 6. THE LD. D.R., IN REBUTTAL TO THIS LEGAL PLEA RAI SED BY THE ASSESSEE HAS STRONGLY CONTENDED THAT EVEN IN TH E ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION, THE AO IS EMPOWERED TO LOOK INTO, CO NSIDER AND MAKE ADDITIONS IN RELATION TO THE ISSUES REGARD ING WHICH NO INCRIMINATING MATERIAL WAS FOUND DURING TH E SEARCH ACTION AS IT WAS OPEN TO THE AO TO PASS FRES H ASSESSMENT ORDERS UNDER SECTION 153A OF THE ACT LOO KING INTO ALL THE ASPECTS OF THE MATTER IRRESPECTIVE OF THE FACT WHETHER OR NOT THE ORIGINAL ASSESSMENTS HAVE BEEN COMPLETED AND NOT PENDING OR ABATED ON THE DATE OF SEARCH ACTION. HE HAS FURTHER CONTENDED THAT EVEN OTHERWI SE THE ORIGINAL ASSESSMENT PROCEEDINGS WERE NOT COMPLETED UNDER 4 SECTION 143(3) OF THE ACT RATHER THE RETURNS FILED BY THE ASSESSEE WERE PROCESSED UNDER SECTION 143(1) OF THE ACT AND UNDER THE CIRCUMSTANCES, THE AO WAS EMPOWERED T O EXAMINE AND LOOK INTO THE ISSUES AS THE SAME WERE N OT LOOKED INTO WHILE PROCESSING THE RETURN UNDER SECTI ON 143(1) OF THE ACT. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. ADMITTEDLY, FOR THE ASSE SSMENT YEARS UNDER CONSIDERATION, THE ASSESSMENT STOOD COMPLETED ON THE DATE OF SEARCH. THE SAME WERE NOT PENDING AND EVEN THE LIMITATION PERIOD FOR ISSUANCE OF NOTICE U/S 143(2) FOR INITIATION OF SCRUTINY ASSESS MENT PROCEEDINGS HAD EXPIRED. THE ISSUE RELATING TO THE VALIDITY OF ASSESSMENT MADE UNDER SECTION 153A OF THE ACT WI THOUT HAVING ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION U/S 132 OF THE ACT IN CASE WHERE THE ORIGINA L RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT HAS C OME INTO CONSIDERATION BEFORE THE CO-ORDINATE MUMBAI BE NCH OF THE TRIBUNAL IN THE CASE OF THE ACIT CENT. CIR. 33 , MUMBAI VS. SHRI JAYENDRA P. JHAVERI ITA NOS.2141, 2142, 2143 & 2144/M/2012 & CO NOS.248, 249, 250 & 251/M/2013 DECIDED ON 20.02.2014 (ONE OF US (JUDICI AL MEMBER) BEING PARTY TO THAT ORDER). THE TRIBUNAL HA S DISCUSSED THE ISSUE IN DETAIL AND HAS MADE THE F OLLOWING OBSERVATIONS: 8. THE LEARNED DR HAS ALSO FILED WRITTEN SUBMISSIO NS. TO STRESS HIS POINT THAT THE RETURN PROCESSED U/S. 143(1) CANNOT BE SAID TO BE AN ASSESSMENT BUT A MER E 5 INTIMATION, HE HAS RELIED UPON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (2007) 291 ITR 500 (SC). HIS CONTENTION HAS BEEN THAT IN THE CASE IN HAND THE ASSESSMENT WAS NOT DONE ORIGINALLY U/S. 143(3) HENC E THE ESTIMATION IN QUESTION HAS BEEN RIGHTLY MADE U/ S. 153A OF THE ACT BY THE AO. HE HAS FURTHER CONTENDED THAT THE PRINCIPAL LAID DOWN BY THE SPECIAL BENCH O F THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGIS TICS LTD. 137 ITD 287 CAN BE APPLIED TO THE CASE WHERE THE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 143(3) O F THE ACT AND NOT TO THE CASE WHERE THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR. SO FAR SO THE RELIANCE PLACED BY HIM IN THE CAS E OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA) IS CONCERNED, WE MAY OBSERVE THAT THE ISSUE BEFORE THE HONBLE SUPREME COURT IN THAT CASE WAS REGARDING TH E REOPENING OF THE ASSESSMENT U/S. 147 OF THE ACT. TH E HONBLE SUPREME COURT HELD THAT THE PROPOSITION OF LAW LAID DOWN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF ADANI EXPORTS V. DEPUTY CIT, (1999) 2 40 ITR 224 (GUJ) WAS NOT APPLICABLE IN THAT CASE. IN T HE CASE OF ADANI EXPORTS (SUPRA), WHERE THE ASSESSME NT WAS MADE U/S. 143(3) OF THE ACT, AND THE AO DID NOT HOLD ANY BELIEF THAT INCOME HAD ESCAPED ASSESSMENT ON ACCOUNT OF ERRONEOUS COMPUTATION, THE RE-OPENING U/S. 147 MADE MERELY ON THE BASIS OF AUDIT OBJECTIO NS WAS HELD TO BE BAD IN LAW BY THE HONBLE HIGH COURT . IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD . (SUPRA), THE HONBLE SUPREME COURT WHILE INTERPRETI NG THE PROVISIONS OF SECTION 143(1) AND SECTION 143(3) (AS WERE IN FORCE DURING THE RELEVANT TIME PERIOD) HAS HELD THAT IN CASE OF ASSESSMENT MADE U/S. 143(3), THE ASSESSMENT IS MADE BY THE AO BY APPLYING HIS MIND WHEREAS IN CASE OF PROCESSING OF RETURN U/S. 143(1) OF THE ACT, THERE IS NO APPLICATION OF MIND BY THE AO AND 6 AS SUCH, IF A NEW MATERIAL COMES INTO THE KNOWLEDGE OF THE AO AND THE REQUIREMENTS OF SECTION 147 OF TH E ACT ARE FULFILLED, THE AO IS FREE TO INITIATE PROCE EDINGS U/S. 147 AND THE FAILURE TO TAKE STEPS U/S. 143(3) WILL NOT RENDER THE AO POWERLESS TO INITIATE RE-ASSESSME NT PROCEEDINGS EVEN WHEN INTIMATION U/S. 143(1) HAD BEEN ISSUED. SO THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA) RELATES TO THE POWERS OF THE AO FOR RE-OPEN ING OF ASSESSMENT U/S. 147IN RELATION TO THE ASSESSMENT PROCEEDINGS CONDUCTED UNDER SECTION 143(1) VIZ-A-VI Z U/S 143(3) OF THE ACT. (AS WERE IN FORCE DURING THE RELEVANT PERIOD, SINCE SECTION 143 HAS BEEN FURTHER AMENDED VIDE FINANCE ACT 2008 W.E.F 01.04.2008.) IT IS TO BE NOTED THAT POWERS OF THE AO TO RE-OPEN AN ASSESSMENT U/S. 147 IS SUBJECT TO LIMITATION OF TIM E PERIOD AS PRESCRIBED U/S. 149 OF THE ACT. SO THE REASONABLE CONCLUSION WILL BE THAT WHETHER THE RETU RN WAS PROCESSED U/S. 143(1) OR U/S. 143(3), IF THE AO HAS A REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, HE CAN RE-OPEN THE ASSESSMENT U/S. 147 BY ISSUING NOTICE U/S. 148 BUT WITHIN THE TIME LIMIT AS PRESCRIBED U/S. 149 OF THE ACT. 10. SO FAR SO, THE QUESTION AS TO THE PROCESSING OF RETURN U/S. 143(1) VIZ-A-VIZ ASSESSMENT MADE U/S. 143(3) IS CONCERNED, IT MAY FURTHER BE OBSERVED THA T AFTER PROCESSING OF RETURN U/S. 143(1) THE SAME CAN BE ASSESSED U/S. 143(3) BY ISSUE OF NOTICE U/S. 143(2) SUBJECT TO ITS ISSUANCE WITHIN THE LIMITATION PERIO D OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN IS FURNISHED AS PER THE PROVISO TO CLAUSE (II) OF S ECTION 143(2) [AS WAS EXISTING AT THE TIME OF RELEVANT ASSESSMENT YEAR]. ONCE THE LIMITATION PERIOD AS PRESCRIBED VIDE PROVISO TO CLAUSE (II) OF SUB SECTI ON (2) OF SECTION 143 IS EXPIRED, IT IS NOT OPEN TO THE AO TO ASSESS THE INCOME U/S. 143(3) OF THE ACT AND THE RETURN FILED BY THE ASSESSEE U/S. 139 IS DEEMED TO BE 7 ACCEPTED, WHICH HOWEVER, CAN BE RE-OPENED U/S. 147 OF THE ACT SUBJECT TO THE FULFILLMENT OF INGREDIENT S OF SECTION 147 AND WITHIN THE TIME PERIOD AS PRESCRIBE D U/S. 149 OF THE ACT, AS DISCUSSED IN THE PRECEDING PARA. SO UNDER SUCH CIRCUMSTANCES IF THE RETURN IS PROCESSED U/S. 143(1) AND NOT U/S. 143(3) AND AFTER THE PRESCRIBED PERIOD OF LIMITATION, THE SAME CANNO T BE ASSESSED U/S. 143(3) THOUGH IT MAY BE INTERPRETED A S MERE INTIMATION ASSESSMENT OR OTHERWISE, BUT THE SAME SHALL BE DEEMED TO BE ACCEPTED BY THE AO AND I T WILL NOT HAVE ANY DIFFERENT COLOUR OTHER THAN THE RETURN WHICH IS PROCESSED U/S. 143(3) OF THE ACT. T HE ONLY DISTINGUISHING FEATURE AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA), WOULD BE THAT IF TO A SET OF FACTS AND CIRCUMSTANCES, THE AO HAS APPLIED HIS MIN D AND HE WAS OF THE BELIEF THAT THERE WAS NO ESCAPEME NT OF INCOME THEN FOR INVOKING THE PROVISIONS OF SECTI ON 147 OF THE ACT, HE IS PRECLUDED, ON THE BASIS OF SA ME FACTS AND CIRCUMSTANCES, TO SAY THAT HE HAS REASON TO BELIEVE THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. WHEREAS IN CASE OF RETURNS PROCESSED U/S. 143(1), SINCE THE AO DOES NOT APPLY HIS MIND, SUCH A DEFENSE IS NOT AVAILABLE TO THE ASSESSEE. HOWEVER, THAT PROPOSITION OF LAW DOES NOT HELP THE REVENUE IN THE PRESENT CASE WHICH IS A CASE OF ASSESSMENT/RE-ASSESSMENT U/S. 153A OF THE ACT. 11. ADMITTEDLY, IN THE CASE IN HAND, THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT BUT THE SAME HAS ATTAINED FINALITY DUE TO THE EXPIRY OF LIMITATION P ERIOD OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED. HENCE, THE ASSESSMENT IS DEEMED TO BE COMPLETED AND NOT PENDING ON THE DATE OF SEARCH ON 14.08.2008. ADMITTEDLY, NO INCRIMINATI NG MATERIAL WAS FOUND FROM THE PREMISES OF THE ASSESSE E DURING THE SEARCH U/S. 132 OF THE ACT. THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLO BAL 8 LOGISTICS LTD.(SUPRA), HAS HELD THAT ASSESSMENT U/ S. 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (IND IA) V. ACIT (2013) 259 CTR 281 HAS HELD THAT IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SEARCH OR REQUISITION, THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENT DOES NOT ARISE. UNDER SUCH CIRCUMSTANCES, IT IS NOT OPEN TO THE ASSESSEE TO SE EK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL AND ALREADY CONCLUDED ASSESSMENT, IN THE CASE OF ASSESSMENT U/S. 153A IN PURSUANCE OF SEARCH ACTION. HONBLE HIGH COURT REJECTED THE ARGUMENT OF THE LEARNED COUNSEL FOR ASSESSEE TO THE EFFECT THAT ONCE THE NOTICE U/S. 15 3A IS ISSUED, THE ASSESSMENTS FOR SIX YEARS ARE AT LAR GE BOTH FOR THE AO AND THE ASSESSEE. IT HAS BEEN FURTH ER HELD BY THE HONBLE HIGH COURT THAT THE PROVISIONS OF SECTION 153A TO 153C CANNOT BE INTERPRETED TO BE FURTHER INNINGS TO THE AO AND/OR ASSESSEE BEYOND TH E PROVISIONS OF SECTION 139(RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263(REVISION OF ORDERS) OF THE ACT. THE HONBLE HIGH COURT HAS FURTHER OBSERVED THAT TH E WORDS ASSESS OR RE-ASSESS HAVE BEEN USED AT MOR E THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONL Y ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DU RING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. T HE 9 HONBLE HIGH COURT WHILE REPRODUCING THE PROPOSITIO N OF LAW LAID DOWN BY THE HONBLE SUPREME COURT IN TH E CASE OF K P VARGHESE V. ITO (1981) 24 CTR 358 TH AT IT IS RECOGNIZED RULE OF CONSTRUCTION THAT A STATUT ORY PROVISO MUST BE SO CONSTRUED, IF POSSIBLE, THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED HAS OBSERVED THAT IF THE ARGUMENT OF THE COUNSEL FOR THE ASSESSE E WAS TO BE ACCEPTED, IT WOULD MEAN THAT EVEN IN CASE WHERE THE APPEAL ARISES OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A) OR TRIBUNAL AND THE HIGH COURT, ON A NOTICE ISSUES U/S . 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED BY THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS T O BE REPELLED AND/OR AVOIDED AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF K P VARGHESE (SUPRA). ALMOST SIMILAR PROPOSITION OF LAW HAS BEEN LAID DOWN BY THE CO-ORDINATE BENCH OF THE TRIBUNAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S DEEPA RESTAURAN T & BAR P. LTD. IN ITA NO.1336/M/2012 DECIDED ON 05.02.2014 (ONE OF US BEING THE PARTY OF THE SAID ORDER) WHEREIN, IT HAS BEEN OBSERVED THAT WHERE THE SCRUTINY ASSESSMENT ORDER U/S. 143(3) OF THE ACT WA S SET ASIDE BY THE HIGHER AUTHORITIES THAT, ITSELF, C ANNOT BE A GROUND FOR RE-OPENING THE ASSESSMENT U/S. 147 OF THE ACT ON THE PLEA THAT SINCE SCRUTINY ASSESSMENT HAS BEEN ANNULLED ON THE LEGALITY OF NOTICE U/S. 143(2) OF THE ACT AND THE CASE HAS NOT BEEN HEARD AT ANY OF T HE STAGE HENCE, THERE WAS A REASON TO BELIEVE THAT THE INCOME ASSESSED IN THIS CASE HAS ESCAPED ASSESSMENT. THE CO-ORDINATE BENCH IN THE ABOVE SAID CASE HAS FURTHER HELD THAT SUCH AN ACTION CANNOT BE ALLOWED UNDER THE LAW AS IT MAY AMOUNT TO DEFEATING ONE OF THE STATUTORY PROVISIONS IN THE GRAB OF ACTI NG UNDER OTHER PROVISIONS OF THE STATUTE. ONCE ASSESSMENT U/S. 143(3) HAD BEEN ANNULLED BY HIGHER 10 AUTHORITIES ON THE GROUND OF LEGALITY OF NOTICE U/S . 143(2) OF THE ACT, RE-OPENING U/S 147 ON THAT VERY GROUND WOULD MEAN NOTHING ELSE BUT THE ABUSE OF PROCESS OF LAW. HENCE, THE CONTENTION OF THE LEARNE D DR THAT AS THE RETURN WAS PROCESSED U/S. 143(1) AND IT WAS A MERE INTIMATION HENCE, THE AO HAD REASON T O BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT AND IT WAS OPEN TO THE AO TO REASSESS THE INCOME U/S. 153A , EVEN WITHOUT ANY INCRIMINATING MATERIAL FOUND DURIN G THE SEARCH ACTION, IS NOT TENABLE. 12. THE LEARNED DR HAS FURTHER RELIED ON THE JUDGM ENT OF THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CAS E OF GOPAL LAL BADRUKA VS. DCIT, 346 ITR 106 (AP) T O STRESS THE POINT THAT THE AO CAN USE EVIDENCE OTHER THAN THAT FOUND DURING THE COURSE OF SEARCH WHILE FRAMING THE ASSESSMENT U/S. 153A OF THE ACT. THE SA ID JUDGMENT OF HONBLE ANDHRA PRADESH HIGH COURT HAS BEEN DULY DISCUSSED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA), HOLDING THAT THE SAME WAS DISTINGUISHABLE ON THE FACTS. IN THE CASE OF GOPAL LAL BADRUKA VS. DCIT (SUPRA), INCRIMINATING EVIDENCE WAS FOUND IN RELATION TO EIGHT PLOTS OF LAND BUT NO EVIDENCE WAS FOUND IN RESPECT OF 24 PLOTS. SINCE INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF EIGH T PLOTS, HONBLE COURT HELD THAT THE AO CAN ESTIMATE THE INCOME IN RESPECT OF ALL 32 PLOTS. THE FACT WAS THA T INCRIMINATING MATERIAL WAS FOUND IN THAT CASE. THE OTHER JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHETAN DASS LACHMAN DASS [2012] 211 TAXMANN 61, STRONGLY RELIED UPON BY THE LEARNED DR, IS ALSO OF NO HELP TO THE REVENUE BUT T O THE ASSESSEE ONLY. IN THE SAID CASE THE HONBLE DELHI H IGH COURT, IN PARA 11 OF THE ORDER, THOUGH HAS HELD THA T THERE IS NO CONDITION IN SECTION153A THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FO UND 11 DURING THE COURSE OF SEARCH OR OTHER POST SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND AND THAT THE SEIZED MATERIAL CAN BE RELIED UPON TO ALSO DRAW INFERENCE THAT THERE CAN BE SIMILAR TRANSACTIONS THROUGHOUT THE RELEVANT PERIOD, YET, AT THE SAME TI ME IT HAS BEEN FURTHER OBSERVED THAT THIS HOWEVER, DOE S NOT MEAN THAT ASSESSMENT U/S 153 A CAN BE ARBITRARILY MADE WITHOUT ANY RELEVANCE OR NEXUS WIT H THE SEIZED MATERIAL. THE PROPOSITION OF LAW WHICH EMERGES OUT IN THE LIG HT OF THE LAW LAID DOWN BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) (SUPRA), HONBLE GU JARAT HIGH COURT IN THE CASE OF GOPAL LAL BADRUKA (SUPR A) AND ALSO BY THE HONBLE DELHI HIGH COURT IN THE CAS E OF CHETAN DASS LACHMAN DASS IS THAT WHERE INCRIMINATING MATERIAL IS FOUND DURING THE SEARCH ACTION, THE AO WHILE MAKING ASSESSMENT U/S. 153A CAN TAKE NOTE OF OTHER MATERIALS ON RECORD, WHICH A RE RELEVANT AND CONNECTED TO THE MATERIAL FOUND DURING THE SEARCH AND INFERENCE CAN BE DRAWN RELATING TO OTHER TRANSACTIONS OF SIMILAR NATURE. HOWEVER, WHEN NO INCRIMINATING EVIDENCE IS FOUND DURING SEARCH, I T IS NOT OPEN TO THE AO TO MAKE RE-ASSESSMENT OF CONCLUDED ASSESSMENT IN THE GARB OF INVOKING THE PROVISIONS OF SECTION 153A. AS OBSERVED ABOVE, SUCH AN ACTION WILL DEFEAT THE OTHER RELEVANT PROVISIONS OF THE ACT AND ALSO THE RIGHTS OF THE ASSESSEE ACCRUED THEREIN. 8. THE ABOVE DECISION HAS ALSO BEEN FOLLOWED BY AN OTHER CO-ORDINATE MUMBAI BENCH OF THE TRIBUNAL IN THE CAS E OF ATUL BAROT (HUF) VS. DCIT IN ITA NO.2889/M/2011 & ORS. DECIDED ON 26.02.2014. FURTHER, THE SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA) AND HAS NOW BEEN APPROVED BY THE HONBLE BO MBAY 12 HIGH COURT IN THE CASES OF ALL CARGO LOGISTICS I TA NO.1969 OF 2013 AND CONTINENTAL WAREHOUSING CORPORATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) DECIDED BY COMMON ORDER WHEREIN I T HAS BEEN HELD THAT IN RELATION TO THE ASSESSMENTS W HICH HAVE ALREADY BEEN CONCLUDED, THE AO WAS PRECLUDED FROM MAKING ADDITIONS ON ANY OTHER ISSUE EXCEPT RELATING OR CONCERNING TO THE INCRIMINATING MATERIAL FOUND DURI NG THE SEARCH ACTION. THE AO CANNOT DISTURB THE ASSESSMEN T ORDER OR REASSESSMENT ORDER WHICH HAS ATTAINED FINA LITY, UNLESS THE MATERIAL GATHERED IN THE COURSE OF PROCE EDINGS U/S 153A OF THE ACT ESTABLISHES THAT RELIEF GRANTED UNDER THE FINAL ASSESSMENT/REASSESSMENT WAS CONTRARY TO T HE FACT UNEARTHED DURING THE COURSE OF 153A PROCEEDING S. IDENTICAL VIEW HAS BEEN TAKEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS LT D. ITA NO.36 OF 2009 DECIDED VIDE ORDER DATED 29-10-2010. 9. THIS ALSO CAME FOR CONSIDERATION BEFORE THE CO- ORDINATE CHANDIGARH BENCH OF THIS TRIBUNAL IN ITA N OS. 433 TO 437/CHD/2014 IN THE CASE OF M/S MALA BUILDER S PVT. LTD. VS ACIT, CC-II, CHANDIGARH & OTHERS [ONE OF US (LD. ACCOUNTANT MEMBER) BEING PARTY TO THE SAID DEC ISION] AND AFTER DETAILED DISCUSSION AND RELYING UPON VARI OUS CASE LAWS, IN ALMOST IDENTICAL TERMS, THE TRIBUNAL HAS CONCLUDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 10. NOW COMING TO THE FACTS OF THE CASES IN HAND, T HE SEARCH ACTION WAS CARRIED OUT IN THESE CASES ON 13 15.07.2008. THE LD. AR OF THE ASSESSEE HAS GIVEN A CHART TO SHOW THAT THE LIMITATION PERIOD FOR ISSUING THE NOTICE U/S 143(2) IN RELATION TO THE ASSESSMENT YEARS UNDE R CONSIDERATION I.E. AY 2003-04 TO 2006-07 HAD ALREAD Y EXPIRED AS ON THE DATE OF SEARCH ON 15.7.2008. THE ASSESSMENT IN RELATION TO ABOVE MENTIONED ASSESSMEN T YEARS STOOD COMPLETED/NOT ABATED ON THE DATE OF SEA RCH. IN VIEW OF OUR FINDINGS GIVEN ABOVE ON THE LEGAL PL EA RAISED BY THE ASSESSEE, ADDITIONS MADE BY THE AO U/S 153A IN RELATION TO THE ALREADY COMPLETED ASSESSMENTS WERE ILLEGAL AND THE SAME ARE QUASHED IN RELATION TO THE RELEVAN T ASSESSMENT YEARS UNDER CONSIDERATION. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) ( SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26 TH APRIL, 2017. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD