DCIT, New Delhi V. M/s. Uppal Chadha Hi-Tech Developers (P) Ltd., New Delhi

ITA 5002/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4314 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Search and seizure; Document seized; Block assessment; Documents seized
• Section: 143(3); 153A; 147; 6; 132; 2; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SH. AMIT SHUKLA , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5002 & 5003 /DE L/ 2015 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 DCIT, CENTRAL CIRCLE - 29, ROOM NO. 318, 3 RD FLOOR, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI VS. UPPAL CHADHA HIGH - TECH DEVELOPERS (P.) LTD., 60, FRIENDS COLONY EAST, NEW DELHI PAN : AAACU7200M (APPELLANT) (RESPONDENT) APPELLANT BY SMT. APARNA KARAN, CIT(DR) RESPONDENT BY SH. SALIL KAPOOR, ADV. & MS. ANANYA KAPOOR, ADV. DATE OF HEARING 04.09.2017 DATE OF PRONOUNCEMENT 15.09.2017 ORDER PER O.P. KANT , A. M. : THESE APPEALS OF R EVENUE ARE DIRECTED AGAINST A COMMON ORDER DATED 22/05/2015 PASSED BY THE COMMISSIONER OF INCOME T AX ( A PPEALS) - 30, NEW DELHI [IN SHORT THE CIT - (A) ] IN RELATION TO ASSESSMENT YEAR S 2008 - 09 AND 2009 - 10 RESPECTIVELY. BEING IDENTICAL ISSUES INVOLVED IN BOTH THE APPEALS, SAME WERE HEARD TOGETHER AND DISPOSE D OF F BY WAY OF THIS CONSOLIDATED ORDER. THE GROUNDS OF APPEAL IN BOTH THE ASSESSMENT YEARS BEING IDENTICAL, WE ARE REPRODUCING THE GROUNDS OF APPEAL RAISED IN ITA NO. 5002/DEL/2015 FOR ASSESSMENT YEAR 2008 - 09 AS UNDER: 2 ITA NO S. 5002 & 5003/DEL/2015 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW & ON FACTS BY NOT APPRECIATING THE FACTS IN ITS ENTIRETY AS BROUGHT ON RECORD IN THE CASE OF SH. ANIL BHATIA BY THE JURISDICTIONAL HIGH COURT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN UNDISCLOSED INCOME DISCOVERED FROM SEIZED / INCRIMINATING MATERIAL. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE L D. CIT (A) HAS IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153A R.W.S. 153C OF THE ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN INCOME UNEARTHED DURING SEARCH WHEN THE DECISION OF THE HON BLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09 - 08 - 2014 HAS HELD THAT TOTAL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 5. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. F ACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 09 ON 29/ 09/20 08 DECLARING A LOSS OF RS.16,54, 638/ - WHICH WAS PROCESS ED UNDER SECTION 143(1) OF THE I NCOME - TAX ACT, 1961 (IN SHORT THE ACT) ON 15/07/2009. FOR THE ASSESSMENT YEAR 2009 - 10 THE ASSESSEE FILED RETURN OF INCOME ON 26/ 09/2009 DECLARING A LOSS OF RS.3, 2 1,06, 35 7/ - AND WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 26/09/2009. SUBSEQUENTLY, A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF SH. GURDEEP SINGH CHADHA ( P ONTY CHADHA ) & M/S WAVE INFRATECH P RIVATE 3 ITA NO S. 5002 & 5003/DEL/2015 L IMI TED ON 01/02/2012, AND CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED. PURSUANT TO DOCUMENTS BELONGING TO THE ASSESSEE, THE ASSESSING OFFICER OF THE SEARCH ED PERSON, WHO HAPPENED TO BE THE ASSESSING OFFICER OF THE ASSESSEE ALSO, RECORDED SATISFACTION NOTE IN THE CASE OF SEARCHED PERSON AND KEEPING IN VIEW OF THE WITH THE PROVISIONS OF SECTION 15 3C OF THE ACT. ACCORDINGLY, THE ASSESSING OFFICER ISSUED NOTICE DAT ED 15/10/2013 UNDER SECTION 153A READ WITH SECTION 15 3C OF THE ACT FOR BOTH THE ASSESSMENT YEAR S 2008 - 09 AND 2009 - 10. IN RESPONSE , THE ASSESSEE FILED RET URN OF INCOME UNDER SECTION 15 3A OF THE ACT ON 13/12/2013 FOR BOTH THE ASSESSMENT YEARS DECLARING LOSS OF RS. 16,54, 638/ - AND LOSS OF RS.3,21,06, 357/ - RESPECTIVELY I.E. SAME INCOME AS WAS DECLARED IN ORIGINAL RETURN OF INCOME. IN ASSESSMENT PROCEEDINGS UNDER SECTION 153A OF THE ACT FOR THE ASSESSMENT YEAR S 2008 - 09 AND 2009 - 10, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF INTEREST PAI D TO CUSTOMERS AMOUNTING TO RS.3,76,90, 96 7 / - AND RS.13,09,87, 789 / - RESPECTIVELY ON THE GROUND THAT IT SHOULD BE PART OF PROJECT IN PROGRESS ACCOUNT AND THAT TOO THE ASSESSEE FAILED TO SUBSTANTIATE WITH EVIDENCES. BEFORE THE LEARNED CIT - ( A ) , THE ASSESSEE CHALLENGED JURISDI CTION ASSUMED UNDER SECTI ON 15 3C OF THE ACT AND RAISE D THE ISSUE THAT NO ADDITION COULD HAVE BEEN MADE IN COMPLETED ASSESSMENT IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH WITH REGARD TO THE ADDITION MADE. THE LD. CIT - (A) AFTER CONSIDERING THE SUBMISS ION OF THE ASSESSEE ALLOWED THE APPEALS FOR BOTH THE ASSESSMENT YEARS, IN FAVOUR OF THE ASSESSEE ON THE GROUND OF JURISDICTION, WITH FINDING AS UNDER: I HAVE CONSIDERED THE ASSESSMENT ORDER, WRITTEN SUBMISSION AND ORAL ARGUMENTS OF LD. AR. 4 ITA NO S. 5002 & 5003/DEL/2015 I HAVE PERUSED THE ASSESSMENT MADE U/S 153C READ WITH SECTION 153A FOR ALL ASSESSMENT YEAR. THERE IS NO ADDITION ON THE BASIS OF ANY EVIDENCE OR INCRIMINATING MATERIAL FOUND DURING THE SEARCH. I HAVE PERUSED THE ENTIRE ASSESSMENT ORDER AND THE NATURE OF SEIZED DOCUMENTS RELIED UPON. NOWHERE IN THE ASSESSMENT ORDER, THE CONTENTS OF THE SEIZED DOCUMENTS ARE DISCUSSED AND THERE IS NO LINKAGE BETWEEN THE ADDITIONS MADE FOR ALL ASSESSMENT YEARS WITH THE SEIZED DOCUMENTS RELIED UPON IN THE SATISFACTION NOTES. IN VIEW OF THE ABOVE FACTS, I INTEND TO AGREE WITH THE ARGUMENTS OF LD. AR THAT THE DOCUMENTS RELIED UPON IN THE SATISFACTION NOTES U/S 153C ARE NOT INCRIMINATING IN NATURE FOR ASSESSMENT OF INCOME. NOW THE ISSUE IS WHETHER IN ABSENCE OF ANY INCRIMINATING SEIZED DOCUMENTS FOR ANY ASSESSMENT YEAR, ADDITION CAN BE MADE U/S 153C READ WITH SECTION 153A IN RESPECT OF CLOSED ASSESSMENT. IN RESPECT OF ALL ASSESSMENT YEARS EITHER THE ASSESSMENTS WERE COMPLETED U/S 143(3) OR TIME TO ISSUE NOTICE U/S 143(2) HAVE EXPIRED. T HEREFORE, THESE ASSESSMENTS ARE CLOSED ASSESSMENT. LD. AR RELIED UPON THE DECISION OF JAI STEEL INDIA VS. ACIT (259 CTR 281) RAJ. & SINGHAD TECHNICAL EDUCATION SOCIETY VS. ACIT (ITAT, PUNE), WHERE IT HAS BEEN HELD THAT OTHER PERSON (NOT SEARCHED) CANNOT BE PROCEEDED AGAINST SUCH PERSONS U/S 153C UNLESS DOCUMENTS / PAPERS SEIZED BELONGS TO SUCH PERSON & ARE OF INCRIMINATING IN NATURE. LD. AR HAS FURTHER RELIED UPON THE DECISION OF HON ABLE ITAT, PUNE IN THE CASE OF KUMAR & COMPANY DT.02.02.2010 WHERE IT HA S BEEN HELD THAT DOCUMENTS RELIED FOR PROCEEDING U/S 153C MUST BE PRIMAFACIE INCRIMINATING. INCRIMINATING NATURE OF THE SEIZED DOCUMENT IS AN ESSENTIAL FACTOR FOR THE PROCEEDINGS U/S 153C. LD. AR HAS FURTHER RELIED UPON THE DECISION OF S.B. OF ITAT, MUMBAI VIDE ORDER DT.06.07.2012 IN THE CASE OF ALL CARGO LOGISTICS LTD. VS. DCIT, WHERE IT HAS BEEN HELD THAT ASSESSMENT U/S 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. LD.AR ARGUED THAT THE ASSESSMENT U/S 153C IS BASED ON TH E PROVISIONS OF SECTION 153A THEREFORE; THE DECISION WILL BE SQUARELY APPLICABLE FOR ASSESSMENT U/S 153C ALSO. LD.AR FURTHER ARGUED THAT HON ABLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. ANIL KUMAR BHATIA (ITA NO. 1626, 1632,1998,2006,2019 & 2020) ALSO H AD NOT GIVEN OPINION FOR THE SCOPE OF ASSESSMENT U/S 153A WHERE NO INCRIMINATING DOCUMENTS HAVE BEEN SEIZED. HON ABLE ITAT SMC DELHI, IN THE CASE OF PARIVAR PROPERTIES PVT. LTD NEW DELHI, VS. DCIT, CC - 12, NEW 5 ITA NO S. 5002 & 5003/DEL/2015 DELHI HAS DECIDED THAT ADDITION CAN BE MADE WIT HOUT INCRIMINATING DOCUMENTS IN ONLY IN THE CASE OF OPEN ASSESSMENT U/S REBATED ASSESSMENT 153A/153C LD. AR RELIED UPON THE DECISION OF SSP AVIATION LTD. VS. DCIT (2012) 346 ITR 0177 (DEL), LMJ INTERNATIONAL LTD. (2008) 22 SOT 315 KOL, MGF AUTOMOBILES LTD. VS. ACIT CC - 7, NEW DELHI (ITA NOS. 4212 & 4213/DEL/2011, ITAT E BENCH, NEW DELHI. LD. AR FURTHER ARGUED THAT IN THE AMENDMENT IN BUDGET - 2014 U/S 153C REQUIRED THAT THE PAPER ON THE BASIS OF WHICH SATISFACTION IS RECORDED MUST BEARING ON THE DETERMINATION OF INCOME. I HAVE CONSIDERED ENTIRE JUDICIAL PRONOUNCEMENTS RELIED BY LD. AR. AS I HAVE HELD EARLIER THAT THERE IS NO INCRIMINATING DOCUMENTS RELIED UPON IN THE SATISFACTION NOTE RECORDED U/S 153C, IN PRESENT CASE, IN MY VIEW NO ADDITION CA N BE MADE UNDER THIS CIRCUMSTANCES. IN FACT, DECISION OF JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF SH. ANIL KUMAR BHATIA ALSO DOES NOT SUPPORT AS THERE IS NO INCRIMINATING DOCUMENTS EVEN FOR ONE ASSESSMENT YEAR COVERED U/S 153C. ACCORDINGLY, ADDITI ON MADE BY THE ASSESSING OFFICER FOR ALL ASSESSMENT YEARS ARE HEREBY DELETED. THESE GROUNDS OF APPEALS ARE ALLOWED FOR ALL ASSESSMENT YEARS. 2.1 A GGRIEVED , THE R EVENUE IS IN APPEAL, RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. IN THE GROUNDS RAISED, THE R EVENUE IS AGGRIEVED WITH THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A OF THE ACT FOR ONLY MEAN UNDISCLOSED INCOME DISCOVERED FROM SEIZED/INCRIMINATING MATERIAL. 4. THE LD. CIT(DR) PLACED RELIANCE ON FOLLOWING DECISIONS: 1. SSP AVIATION LTD VS DCIT, DELHI HIGH COURT, 2016, 20 TAXMANN.COM 214 IN VIEW OF PROVISIONS OF SECTION 153C, SATISFACTION THAT IS REQUIRED TO BE REACHED BY ASSESSING OFFICER HAVING JURISDICTION OVER SEARCHED PERSON IS THAT VALUABLE ARTICLE OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DURING SEARCH BELONG TO A PERSON 6 ITA NO S. 5002 & 5003/DEL/2015 OTHER THAN SEARCHED PERSON AND, IT IS NOT NECESSARY THAT DOCUMENTS SO SEIZED MUST REFLECT ANY UNDISCLOSED INCOME. 2. RAJESH SUNDERDAS VASWANI VS ACIT, GUJARAT HIGH COURT, 2016, [2016] 76 TAXMAN N.COM 311 (GUJARAT) WHERE ASSESSING OFFICER OF SEARCH PERSON RECORDED THAT DOCUMENT FOUND DURING SEARCH WAS COPY OF A LEDGER OF BOOKS OF ACCOUNT OF ASSESSEE COMPANY WHICH EVIDENCED CERTAIN CHEQUE PAYMENTS AS WELL AS CASH PAYMENTS TO A COMPANY BY ASSESSEE, THERE WAS PRIMA FACIE MATERIAL TO SUGGEST THAT SATISFACTION AS PER SECTION 153C WAS DULY RECORDED AND THUS, NOTICE ISSUED TO FILE RETURN TO ASSESSEE WAS JUSTIFIED. 3. PCIT VS SUPER MALLS PVT LTD, DELHI HIGH COURT, 2016, ITA 449/2016 SATISFACTION NOTE R ECORDED U/S 153C IN RESPECT OF THE ASSESSEE, BEING THE THIRD PARTY, COULD NOT BE SAID TO BE INVALID ON A HYPER TECHNICAL GROUND BY INTERPRETING THE EXPRESSION 'BELONGING TO' TOO LITERALLY. 5. O N THE CONTRARY, LEARNED COUNSEL OF THE ASSESSEE SUBMITTED TH AT IN THE CASE OF THE ASSESSEE, THE ASSESSING OFFICER WAS NOT HAVING JURISDICTION UNDER SECTION 15 3C OF THE ACT IN ABSENCE OF INCRIMINATING MATERIAL FOUND. IN SUPPORT OF THE CONTENTION HE RELIED ON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF CIT - I II, PUNE VS. SINGHAD TECHNICAL E DUCATION S OCIETY , (2017) 8 4 TAXMANN.COM 290 (SC ). HE FURTHER SUBMITTED THAT NO ADDITION COULD HAVE BEEN MADE IN COMPLETED ASSESSMENTS IN ABSENCE OF ANY INCRIMINATING MATERIAL AS HELD BY THE HON BLE DELHI HIGH COURT IN THE C ASE OF PCIT VS. METTA GUTGUTIA IN ITA NO. 306/2017, WHEREIN THE HON BLE HIGH COURT HAS UPHELD THE FINDING IN THE CASE OF CIT VERSUS KABUL CHAWLA (2016) 380 ITR 573 (DEL). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE INSTANT CASE THE LEARNED CIT - (A) HAS GIVEN THE FINDING THAT AS ON THE DATE OF SEARCH NO ASSESSMENT WAS PENDING IN BOTH THE ASSESSMENT YEARS INVOLVED. THE LEARNED CIT - (A ) HAS ALSO GIVEN THE 7 ITA NO S. 5002 & 5003/DEL/2015 FINDING THAT NO INCRIMINATING MATERIAL WAS FOUND OR SEIZED IN RELATION TO THE ASSESSMENT YEARS INVOLVED AND THE ASSESSING OFFICER HAS NOT RELIED ON THE INCRIMINATING OR SEIZED MATERIAL FOR MAKING ADDITIONS IN THE BOTH THE ASSES SMENT YE ARS INVOLVED. BEFORE US , THE LD. CIT (DR) FAILED TO REBUT THESE FACTUAL FINDING OF THE LD. CIT - (A) . 7. THE HON BLE DELHI HIGH COURT IN THE CASE OF MEETA GUTGUTIA (SUPRA) HAS OBSERVED AS UNDER : 61. IT APPEARS THAT A NUMBER OF HIGH COURTS HAVE CONCURRED W ITH THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) BEGINNING WITH THE GUJARAT HIGH COURT IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION PVT. LTD . (SUPRA ). THERE, A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 7TH OCTOBER, 2009 AND AN ASSESSMENT CAME TO BE FRAMED UNDER SECTION 143(3) READ WITH SECTION 153A(1)(B) IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE OF RS. 14.5 CRORES AGAINST DECLARED INCOME O F RS. 3.44 CRORES. THE ITAT DELETED THE ADDITIONS ON THE GROUND THAT IT WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH IN RESPECT OF AYS UNDER CONSIDERATION I.E., AY 2006 - 07. THE GUJARAT HIGH COURT REFERRED TO THE DECISIO N IN KABUL CHAWLA (SUPRA), OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT (SUPRA) AND ONE EARLIER DECISION OF THE GUJARAT HIGH COURT ITSELF. IT EXPLAINED IN PARA 15 AND 16 AS UNDER: '15. ON A PLAIN READING OF SECTION 153A OF THE ACT, IT IS EVIDENT THAT THE TRIGGER POINT FOR EXERCISE OF POWERS THEREUNDER IS A SEARCH UNDER SECTION 132 OR A REQUISITION UNDER SECTION 132A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECT ION 153A OF THE ACT TO THE PERSON, REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTE D OR REQUISITION IS MADE AND ASSESS OR REASSESS THE SAME. SINCE THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS EVIDENT THAT THE OBJECT OF THE SECTION IS TO BRING TO TAX THE U NDISCLOSED INCOME WHICH IS FOUND DURING THE COURSE OF OR PURSUANT TO THE SEARCH OR REQUISITION. HOWEVER, INSTEAD OF THE 8 ITA NO S. 5002 & 5003/DEL/2015 EARLIER REGIME OF BLOCK ASSESSMENT WHEREBY, IT WAS ONLY THE UNDISCLOSED INCOME OF THE BLOCK PERIOD THAT WAS ASSESSED, SECTION 153A OF TH E ACT SEEKS TO ASSESS THE TOTAL INCOME FOR THE ASSESSMENT YEAR, WHICH IS CLEAR FROM THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASS ESSMENT YEARS. THE SECOND PROVISO MAKES THE INTENTION OF THE LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO THE SIX ASSESSMENT YEARS REFERRED TO IN THE SUB - SECTION PENDING ON THE DATE OF INITIATION OF SEARCH UND ER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. SUB - SECTION (2) OF SECTION 153A OF THE ACT PROVIDES THAT IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB - SECTION (1) IS ANNULLED IN APPEAL OR AN Y OTHER LEGAL PROVISION, THEN THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAD ABATED UNDER THE SECOND PROVISO WOULD STAND REVIVED. THE PROVISO THERETO SAYS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT IF SUCH ORDER OF ANNULMENT IS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR REASSESSMENT FALLING WITHIN THE SIX ASSESSMENT YEARS PRIOR TO THE SEARCH OR REQUISITION STANDS ABATED AND THE TOTAL INCOME OF THE ASSESSEE IS REQUIRED TO BE DETERMINED UNDER SECTION 153A OF THE ACT. SIMILARL Y, SUB - SECTION (2) PROVIDES FOR REVIVAL OF ANY ASSESSMENT OR REASSESSMENT WHICH STOOD ABATED, IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153A OF THE ACT IS ANNULLED IN APPEAL OR ANY OTHER PROCEEDING. 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS 'WELL SETTLED AS HELD BY THE SUPREME COURT IN A CATENA OF DECISIONS THAT THE HEADING OR THE SECTION CAN BE REGARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECTIO N AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLEAR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEADING OF SECTION 153. THE INTENTION OF THE LEGISLATURE IS CLEAR, VIZ., TO PROVIDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF THE PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOES WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR REQUISITION, IN OTHER WORDS, THE ASSESSMENT SHOULD CO NNECTED WITH SOMETHING ROUND DURING THE SEARCH OR REQUISITION VIZ., INCRIMINATING MATERIAL WHICH REVEALS 9 ITA NO S. 5002 & 5003/DEL/2015 UNDISCLOSED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB - SECTION (1) OF SECTION 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISIT ION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION' OR DISALL OWANCE CAN BE MADE ONLY ON THE BASIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISITION, IN CASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDI A) V. ASST . CIT (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED, IN CASE WHERE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT UNDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THA T THE SCOPE AND AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. X XX 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTENDED THAT IF ANY INC RIMINATING MATERIAL IS FOUND, NOTWITHSTANDING THAT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS FOUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN RESPECT OF AN THE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS. THE ASSESSMENT IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT. UNDER SECTION 153A OF THE ACT, ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR R EQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLOSED DURING THE SEARCH OR REQUISITION. IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESSMENT YEAR IN EXERCISE OF PO WERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COMPLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) V. ASST . CIT (SUPRA). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN 10 ITA NO S. 5002 & 5003/DEL/2015 THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF CIT V. JAYABEN RATILAL SORATH IA (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDERING SECTION 153A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RESPECT TO SIX PRECEDING YEARS ; HOWEVER, THERE MUST BE SOME INCRIMINATING MATERIA L AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSMENT YEAR.' 62. SUBSEQUENTLY, IN PRINCIPAL COMMISSIONER OF INCOME TAX - 1 V. DEVANGI ALIAS RUPA (SUPR A), ANOTHER BENCH OF THE GUJARAT HIGH COURT REITERATED THE ABOVE LEGAL POSITION FOLLOWING ITS EARLIER DECISION IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION P. LTD . (SUPRA) AND OF THIS COU RT IN KABUL CHAWLA (SUPRA). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN CIT V. IBC KNOWLEDGE PARK P. LTD . (SUPRA) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) AND HELD THAT THER E HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CALCUTTA HIGH COURT IN CIT - 2 V. SALASAR STOCK BROKING LTD . ( SUPRA), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). IN CIT V. GURINDER SINGH BAWA (SUPRA), THE BOMBAY HIGH COURT HELD THAT: '6...ONCE AN ASSESSMENT HAS ATTAINED FINALITY FOR A PARTIC ULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS.' 63. EVEN THIS COURT HAS IN CIT V MAHESH KUMAR GUPTA (SUPRA) AND THE PR. COMMISSIONER OF INCOME TAX - 9 V. R AM AVTAR VERMA (SUPRA) FOLLOWED THE DECISION IN KABUL CHAWLA (SUPRA). THE DECISION OF THIS COURT IN PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. (SUPRA) WHICH WAS REFERRED TO IN KABUL CHAWLA (SUPRA) HAS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7TH DECEMBER, 2015. 8. IN VIEW OF THE ABOVE FACTS OF THE CASE, RESPECTFULLY FOLLOWING THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF MEETA GUTGUTIA (SUPRA) AND KABUL CHAWLA (SUPRA), WE UPHOLD THE FINDING OF THE LD. CIT - 11 ITA NO S. 5002 & 5003/DEL/2015 (A) ON THE ISSUE IN DISPUTE IN BOTH THE APPEALS AND DISMISS THE GROUNDS OF APPEAL IN BOTH THE YEARS. 9. SINCE WE HAVE ALREADY FOLLOWED THE DECISION OF THE HON BLE DELHI HIGH COURT ON THE ISSUE WHETHER ANY ADDITION COULD HAVE BEEN MADE I N THE ASSESSMENT YEARS INVOLVED , WE HAVE NOT ADJUDICATED THE ARGUMENTS OF BOTH PARTIES ON THE ISSUE WHETHER THE JURISDICTION ASSUMED UNDER SECTION 153C OF ACT WAS IN ACCORDANCE WITH LAW OR NOT , BEING RENDERED ACADEMIC ONLY . 10. IN THE RESULT , BOTH THE APPEALS FILED BY THE R EVENUE ARE DISMISSED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 5 T H SEPT. , 201 7 . S D / - S D / - ( AMIT SHUKLA ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 5 T H SEPTEMBER , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI