Y.V.Anjaneyulu, Guntur V. THE DCIT, CENTRAL CIRCLE, Vijayawada

ITA 514/VIZ/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8871 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Keywords: Search and seizure; Salary income; Reasonable cause; Deemed dividend; Block assessment; Condonation of delay
• Section: 143(3); 142(1); 153A; 132

Judgement Text

ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NO.513 & 514/VIZAG/2013 ( / ASSESSMENT YEAR: 2004-05 & 2005-06) Y.V. ANJANEYULU GUNTUR DCIT, CENTRAL CIRCLE, VIJAYAWADA [PAN NO. AAGPY5980K ] ( % / APPELLANT) ( &'% / RESPONDENT) ./I.T.A.NO.524/VIZAG/2013 ( / ASSESSMENT YEAR: 2004-05) DCIT, CENTRAL CIRCLE, VIJAYAWADA Y.V. ANJANEYULU GUNTUR ( % / APPELLANT) ( & '% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI T.S.N. MURTHY, DR / DATE OF HEARING : 08.06.2017 / DATE OF PRONOUNCEMENT : 09.06.2017 ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 2 / O R D E R PER SHRI G. MANJUNATHA, ACCOUNTANT MEMBER: THESE CROSS APPEALS FILED BY THE ASSESSEE, AS WELL AS THE REVENUE ARE DIRECTED AGAINST SEPARATE BUT IDENTICAL ORDERS OF THE CIT(A) GUNTUR DATED 28.3.2013 FOR THE ASSESSMENT YEARS 2004-05 & 2005-06. SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMMON, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED-OFF BY WAY OF THIS COMMON ORD ER FOR THE SAKE OF CONVENIENCE. 2. THE LD. A.R. FOR THE ASSESSEE, AT THE TIME OF HE ARING SUBMITTED THAT THERE IS A DELAY OF 1 DAY IN FILING THESE APPE ALS BEFORE THE ITAT. THE A.R. FURTHER SUBMITTED THAT THE DELAY IN FILING APPEALS IS DUE TO SOME TRANSPORT PROBLEM AND THE PERSON COULD REACH T HE TRIBUNAL ONLY ON 3.7.2013. IN THIS REGARD, ASSESSEE FILED PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT. THEREFORE, THE DELAY IN FILI NG APPEAL MAY BE CONDONED. ON THE OTHER HAND, THE LD. D.R. DID NOT OPPOSE CONDONATION PETITION FILED BY THE ASSESSEE. 3. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATER IAL ON RECORD, WE FIND THAT THERE IS A MARGINAL DELAY OF 1 DAY IN FILING THESE TWO APPEALS. THE ASSESSEE HAS EXPLAINED THE REASONS FO R DELAY IN FILING THE APPEAL. WE OBSERVED THAT THE REASONS GIVEN BY THE A SSESSEE FOR NOT ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 3 PRESENTING THE APPEAL ON OR BEFORE THE DUE DATE IS BEYOND HIS CONTROL. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS A REASONABLE CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE DUE DATE SPECIFIED UNDER THE ACT, AND HENCE THE DELAY IN FILING THE APPEAL H AS BEEN CONDONED AND ADMIT THE APPEAL FOR ADJUDICATION ON ISSUES. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVING INCOME FROM SALARY FROM CHALAPATI CHIT FUN D PRIVATE LIMITED, CHALAPATI HOUSING AND FINANCE PRIVATE LIMITED, PROP ERTY INCOME, INCOME FROM BUSINESS AND INCOME FROM OTHER SOURCES HAS FIL ED HIS REGULAR RETURN OF INCOME U/S 139(1) OF THE INCOME TAX ACT, 1961 (H EREINAFTER CALLED AS 'THE ACT'). A SEARCH AND SEIZURE OPERATION WAS CON DUCTED U/S 132 OF THE ACT IN THE GROUP CASES OF CHALAPATI GROUP, GUNTUR O N 24.7.2008. DURING THE COURSE OF SEARCH & SEIZURE OPERATIONS, CERTAIN INCRIMINATING MATERIALS RELATING TO THE ASSESSEE WERE FOUND AND SEIZED. CO NSEQUENT TO SEARCH, THE CASE HAS BEEN CENTRALIZED TO DCIT, CENTRAL CIRC LE, VIJAYAWADA, ACCORDINGLY, A NOTICE U/S 153A OF THE ACT, DATED 30 .11.2009 WAS ISSUED TO THE ASSESSEE CALLING FOR RETURN OF INCOME FOR TH E ASSESSMENT YEARS 2004-05 & 2005-06. IN RESPONSE TO THE NOTICE, THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-0 5 & 2005-06 ON 22.1.2010 DECLARING TOTAL INCOME OF ` 34 LAKHS BESIDES AGRICULTURAL INCOME OF ` 1,04,000/- AND ` 6,08,367/- BESIDES AGRICULTURAL INCOME OF ` ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 4 1,92,500/- RESPECTIVELY. THE CASES HAVE BEEN SELEC TED FOR SCRUTINY AND ACCORDINGLY, NOTICES U/S 143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WERE ISSUED ON 15.3.2010 POSTING THE CASE FOR HEARING ON 3.4.2010. IN RESPONSE TO NOTICES, THE AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE I NFORMATION AS CALLED FOR. THE ASSESSMENT FOR THE ASSESSMENT YEAR 2004-0 5 & 2005-06 HAS BEEN COMPLETED U/S 143(3) R.W.S. 153A OF THE ACT ON 28.12.2010, DETERMINING THE TOTAL INCOME OF ` 57,79,000/- AND ` 25,20,860/- RESPECTIVELY, INTER-ALIA MAKING ADDITIONS TOWARDS D EEMED DIVIDEND U/S 2(22)(E) OF THE ACT. 5. AGGRIEVED BY THE ASSESSMENT ORDERS, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE A SSESSEE HAS CHALLENGED THE ADDITIONS MADE BY THE A.O. TOWARDS D EEMED DIVIDEND U/S 2(22)(E) OF THE ACT, ON THE GROUND THAT THE ASSESSE E HAD SUBSTANTIAL SHARE APPLICATION MONEY, EVEN AFTER ALLOTMENT OF SH ARES IN THE SUBSEQUENT YEAR, IN THE BOOKS OF ACCOUNTS AND HE HA D WITHDRAWN MONEY OUT OF SHARE APPLICATION MONEY STANDING TO THE CRED IT OF HIS ACCOUNT, THEREFORE, THE A.O. WAS ERRED IN MAKING ADDITIONS T OWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. THE CIT(A) AFTER CONSIDERING THE EXPLANATIONS OF THE ASSESSEE, UPHELD THE ACTION OF THE A.O. IN BRINGING TO TAX AMOUNT WITHDRAWN BY THE ASSESSEE U/S 2(22)(E) O F THE ACT. ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 5 HOWEVER, ALLOWED PARTIAL RELIEF AND DIRECTED THE A. O. TO RECOMPUTE ADDITIONS MADE TOWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. AGGRIEVED BY THE CIT(A) ORDER, THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US. 6. THE ASSESSEE HAS FILED COMMON GROUNDS FOR BOTH T HE ASSESSMENT YEARS. FROM THESE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ADDITIONS MADE BY THE A.O. TOWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. THE ASSESSEE ALSO FILED A PETITION FOR AD MISSION OF ADDITIONAL GROUNDS ON 10.12.2016, RAISING A LEGAL GROUND CHALL ENGING ADDITIONS MADE BY THE A.O. TOWARDS DEEMED DIVIDEND IN THE CON CLUDED ASSESSMENT FOR THE ASSESSMENT YEARS 2004-05 & 2005- 06. FOR THE SAKE OF CONVENIENCE, THE ADDITIONAL GROUNDS RAISED BY TH E ASSESSEE FOR THE ASSESSMENT YEAR 2004-05 ARE REPRODUCED BELOW: 1. THE APPELLANT FILED HIS RETURN OF INCOME FOR THE A. Y.2004-2005 ORIGINALLY ON 17-10-2005 ADMITTING TOTAL INCOME OF RS.34,00,000. CONSEQUENT TO SEARCH & SEIZURE OPERATIONS IN THE GR OUP CASES OF CHALAPTHI GROUP ON 2407-2008 NOTICE U/S 153A WAS IS SUED TO THE APPELLANT ON 30-11-2009. IN RESPONSE, THE APPELLANT FILED HIS RETURN OF INCOME ON 22-1-2010 ADMITTING THE SAME INCOME OF RS.34,00,000. 2. ASSESSMENT U/S 143(3) R.W.S.153A WAS COMPLETED VIDE ORDER DT.28-122010, WHEREIN THE ASSESSING OFFICER MADE ON ADDITION OF RS.21,75,000 TOWARDS DEEMED DIVIDEND. THIS ADDITION WAS MADE BASED ON THE LEDGER A/C OF THE APPELLANT IN THE BOO KS OF CHALAPATHI CHIT FOUND (P) LTD AND IS NOT BASED UPON ANY SEIZED DOCUMENT. FURTHER, AS ON 24-07-2008 I.E. THE DATE OF SEARCH T HE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) AGAINST THE RETURN OF IN COME ORIGINALLY FILED ON 17-10-2005 STOOD EXPIRED. 3. BEFORE THE LEARNED CIT(A) THE APPELLANT CONTESTED T HIS ADDITION ON MERITS AND THE LEARNED CIT(A) GRANTED R ELIEF OF ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 6 RS.20,00,000 AND SUSTAINED THE BALANCE ADDITION OF RS.1,75,000 VIDE HIS ORDER DT.. IN THE ABOVE MENTIONED APPEAL T HE APPELLANT CONTESTED THIS. 4. THE HON'BLE VISAKHAPATNAM BENCH OF ITAT HAS BEEN CONSISTENTLY HOLDING THAT WITH REGARD TO SUCH ASSES SMENT YEARS FOR WHICH THERE ARE NO PENDING PROCEEDINGS AS ON THE DA TE OF SEARCH, ADDITION CAN BE MADE ONLY WITH REFERENCE TO INCRIMI NATING MATERIAL FOUND DURING SEARCH & SEIZURE OPERATIONS. THEREFORE , IN VIEW OF THE FACTS ON RECORD IN THE CASE OF THE APPELLANT AS STATED ABOVE ADDITION COULD NOT HAVE BEEN MADE FOR RS.21,75,000 TOWARDS DEEMED DIVIDEND IN THE ABSENCE OF ANY SEIZED MATERI AL. S. HOWEVER, THE APPELLANT FAILED TO RAISE THE ABOVE GROUND OF APPEAL BEFORE THE ASSESSING OFFICER AND ALSO THE LE ARNED CIT(A) DUE TO INADVERTENCE. THE ENTIRE FACTS RELEVANT FOR ADJUDICATION OF THE ISSUE ARE ALREADY ON RECORD AND THE ISSUE INVOL VED IS ONLY A LEGAL ISSUE. 6. IN VIEW OF THE ABOVE, THE APPELLANT PRAYS THAT T HE FOLLOWING ADDITIONAL GROUND OF APPEAL MAY KINDLY BE ADMITTED AND APPROPRIATE ORDERS MAY KINDLY BE PASSED IN THE INTE REST OF RENDERING SUBSTATIONS JUSTICE. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE ADDITION TO THIS EXTENT OF RS.1,75,000 MADE BY THE ASSESSING OFFICER TOWARDS DEEMED DIVIDEND AND SUSTAINED BY TH E LEARNED CIT(A) IS BEYOND THE SCOPE OF ADDITIONS THAT CAN BE MADE IN AN ASSESSMENT U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961.' 7. DURING THE COURSE OF HEARING, THE LD. A.R. FOR T HE ASSESSEE SUBMITTED THAT ALL THE MATERIAL FACTS RELEVANT TO T HE LEGAL ISSUE ARE ALREADY ON RECORD AND THE ISSUE AS TO SCOPE OF ADDI TIONS THAT CAN BE MADE IN AN ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT, IS PURELY A LEGAL ISSUE WHICH CAN BE RAISED AT ANY TIME BEFORE THE TRIBUNAL. THEREFORE, REQUESTED TO ADMIT ADDITIONAL GROUND OF APPEAL AND PASS SUCH ORDERS AS MAY BE APPROPRIATE IN THE INTEREST O F RENDERING ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 7 SUBSTANTIAL JUSTICE. THE LD. D.R., ON THE OTHER HA ND STRONGLY OPPOSED ADMISSION OF ADDITIONAL GROUNDS RAISED BY THE ASSES SEE. 8. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATER IAL ON RECORD, WE FIND THAT FACTS WHICH ARE NECESSARY FOR ADJUDICA TION OF LEGAL ISSUE RAISED BY THE ASSESSEE BY WAY OF ADDITIONAL GROUNDS OF APPEALS ARE ALREADY ON RECORD AND NO NEW MATERIAL OR EVIDENCE I S RELIED UPON TO CHALLENGE THE LEGAL ISSUE. THEREFORE, WE ARE OF TH E VIEW THAT ADDITIONAL GROUND RAISED BY THE ASSESSEE CAN BE ADMITTED FOR A DJUDICATION AND ACCORDINGLY, WE ADMIT ADDITIONAL GROUND RAISED BY T HE ASSESSEE AND PROCEED TO DISPOSE OF THE APPEAL. 9. THE FIRST ISSUE THAT CAME UP FOR OUR CONSIDERATI ON BY WAY OF ADDITIONAL GROUNDS OF APPEAL IS WHETHER ON THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE, THE A.O. IS RIGHT IN MAK ING ADDITIONS TOWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT, FOR THE AS SESSMENT YEARS 2004-05 & 2005-06, WHERE THE ASSESSMENT PROCEEDINGS HAS BEEN COMPLETED AND NO PROCEEDINGS ARE PENDING AS ON THE DATE OF SEARCH. THE LD. A.R. FOR THE ASSESSEE REFERRING TO THE DECI SION OF ITAT, VISAKHAPATNAM BENCH IN THE CASE OF SRI HARI PRASAD BHARARIA VS. DCIT, CENTRAL CIRCLE-1, IN ITA NOS.435 TO 441/VIZAG/2014 DATED 9.9.2016, SUBMITTED THAT IN THE CASE OF CONCLUDED ASSESSMENTS , THE A.O. HAS NO JURISDICTION TO MAKE ADDITIONS TOWARDS ADDITION TO RETURNED INCOME IN THE ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 8 ABSENCE OF ANY MATERIALS. THE A.R. FURTHER SUBMITT ED THAT IN THE CASE OF ABATED ASSESSMENTS AND ASSESSMENTS, WHICH ARE PENDI NG AS ON THE DATE OF SEARCH, THE A.O. CAN ASSUME JURISDICTION TO ASSE SS/REASSESS TOTAL INCOME, WHICH IS FOUND DURING THE COURSE OF SEARCH. IN THIS CASE, THE ASSESSMENT FOR THE ASSESSMENT YEARS 2004-05 & 2005- 06 ARE ALREADY CONCLUDED AND NO PROCEEDINGS ARE PENDING AS ON THE DATE OF SEARCH AND HENCE, THE A.O. IS PRECLUDED FROM MAKING ADDITIONS TO RETURNED INCOME IN THE ABSENCE OF ANY SEIZED MATERIALS. 10. THE LD. D.R. SUBMITTED THAT ONCE A SEARCH IS TA KEN PLACE, THE ASSESSMENT FOR THE 6 ASSESSMENT YEARS GETS REOPENED AND THE A.O. WILL GET JURISDICTION TO ASSESS/REASSESS TOTAL INCOME OF THOSE 6 ASSESSMENT YEARS WHETHER OR NOT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. THE D.R. FURTHER ARGUED THAT THE PROVISIONS OF SECTION 153A OF THE ACT, SHALL BE ATTRACTED UPON INITIATION OF SEARCH PROCEEDINGS U/S 132 OF THE ACT, IN WHICH CASE THE CONCLUDED ASS ESSMENTS WILL BE REOPENED AS PER THE PROVISIONS OF SECTION 153A OF T HE ACT, AND SUCH REOPENING IS NOT DEPENDS UPON EXISTENCE OR OTHERWIS E OF ANY UNDISCLOSED INCOME. IN SUPPORT OF HIS ARGUMENTS, R ELIED UPON THE DECISION OF HONBLE HIGH COURT OF KARNATAKA, IN THE CASE OF M/S. CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT IN ITA NO.38 O F 2014 DATED 25.7.2014. ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 9 11. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE ONLY ISSUE THAT ARISES FOR OUR CONSIDERATION IS WHE THER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE A.O. IS RIGHT IN MAKING ADDITIONS WITHOUT ANY SEIZED MATERIALS IN RESPECT OF ASSESSME NT YEARS FOR WHICH THE ASSESSMENT PROCEEDINGS HAVE BEEN CONCLUDED AS O N THE DATE OF SEARCH. THE LD. A.R. FOR THE ASSESSEE, SUBMITTED T HAT THE ISSUE HAS BEEN ALREADY CONSIDERED BY THE COORDINATE BENCH OF VISAKHAPATNAM ITAT IN THE CASE OF SRI HARI PRASAD BHARARIA VS. DC IT IN ITA NOS.435 TO 441/VIZAG/2014, WHEREIN IT HAS BEEN OBSERVED THAT T HE A.O. HAS NO JURISDICTION TO MAKE ADDITIONS IN THE ABSENCE OF AN Y SEIZED MATERIALS IN THE ASSESSMENTS MADE U/S 143(3) R.W.S. 153A OF THE ACT, FOR THE ASSESSMENT YEARS WHICH ARE CONCLUDED AND NO PROCEED INGS ARE PENDING AS ON THE DATE OF SEARCH. THE RELEVANT PORTION OF T HE ORDER IS EXTRACTED BELOW: 12. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MAT ERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE FACTUAL MATRIX OF THE CASE IS THAT THERE WAS A SEARCH ACTIO N U/S 132 OF THE ACT. CONSEQUENT TO THE SEARCH, THE ASSESSEE CASE WAS CEN TRALIZED AND ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED REQUIRING ASSESSEE TO FILE RETURN FOR 6 ASSESSMENT YEARS IMMEDIATELY PREC EDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. THE ASSESSEE FIL ED RETURNS IN RESPONSE TO NOTICE U/S 153A OF THE ACT. THE A.O. COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT AND MADE ADDITIONS TO WARDS DEEMED DIVIDEND UNDER THE PROVISIONS OF SECTION 2(22)(E) O F THE ACT. THE A.O. WAS OF THE OPINION THAT TRANSACTIONS BETWEEN THE ASSESS EE AND HIS COMPANY IS COMING WITHIN THE DEFINITION OF DEEMED DIVIDEND UND ER THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT THE ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 10 ASSESSMENT ORDER PASSED BY THE A.O. U/S 143(3) R.W. S. 153A OF THE ACT, FOR THE ASSESSMENT YEARS 2005-06 TO 2009-10 IS NULL AND VOID AS THE A.O. HAS MADE ADDITIONS TOWARDS DEEMED DIVIDEND U/S 2(22 )(E) OF THE ACT WITHOUT ANY INCRIMINATING MATERIALS. THE ASSESSEE F URTHER CONTENDED THAT AS PER SECTION 153A OF THE ACT, DE-NOVO ASSESSMENT CAN BE MADE ONLY IN RESPECT OF ASSESSMENT YEAR FOR WHICH THE ASSESSMENT PROCEEDINGS HAS BEEN ABATED AND THAT IN RESPECT OF ASSESSMENT YEARS FOR WHICH THE ASSESSMENT HAD ALREADY BEEN COMPLETED, NO ADDITIONS CAN BE MADE U/S 153A OF THE ACT UNLESS THERE WAS INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH. 13. THE A.O. HAS PASSED ASSESSMENT ORDERS U/S 153A OF THE ACT, FOR ALL THE SIX ASSESSMENT YEARS, IMMEDIATELY PRECEDING THE YEAR IN WHICH THE SEARCH WAS CONDUCTED. ACCORDING TO THE A.O., AS PER THE PROVISIONS OF SECTION 153A OF THE ACT, THERE IS NO LIMITATION OR RESTRICTION PROVIDED IN THE NEW PROCEDURE OF SEARCH ASSESSMENT ON THE POWERS OF THE A.O. FOR MAKING ASSESSMENT/RE-ASSESSMENT AND THE A.O. IS NOT REQUIRED TO CONFINE HIS ASSESSMENTS ON THE MATERIALS FOUND DURING THE C OURSE OF SEARCH AS WAS THE CASE IN THE OLD PROCEDURE OF BLOCK ASSESSME NTS. IT IS THE CONTENTION OF THE ASSESSEE THAT THE A.O. CANNOT DIS TURB THE COMPLETED ASSESSMENT UNLESS THERE WAS A SEIZED MATERIAL. THE ASSESSEE FURTHER CONTENDED THAT WHERE ASSESSMENTS ARE NOT PENDING AS ON THE DATE OF SEARCH AND TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2 ) OF THE ACT HAS BEEN EXPIRED, IRRESPECTIVE OF THE FACT THAT THOSE ASSESS MENTS HAVE BEEN COMPLETED U/S 143(1) OR 143(3) OF THE ACT, THEN THE A.O. HAS NO POWER TO RE-ASSESS THE INCOME OF THOSE COMPLETED ASSESSMENT YEARS. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE, FOR THE REASON TH AT THE COORDINATE BENCH OF THIS TRIBUNAL IN ITA NOS.300 TO 305/VIZAG/ 2012, IN CASE OF L. SURYAKANTHAM VS. ACIT, HAS CONSIDERED SIMILAR ISSUE AND HELD THAT THE A.O. HAD NO JURISDICTION TO MAKE ADDITIONS U/S 153A OF THE ACT, FOR THE ASSESSMENTS WHICH ARE NOT PENDING AS ON THE DATE OF SEARCH AND ALSO THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE AC T HAS BEEN EXPIRED. THE RELEVANT PORTION OF THE ORDER IS EXTRACTED BELOW: 19. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MAT ERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE FACTUAL MATRIX OF THE CASE IS THAT THER E WAS A SEARCH ACTION U/S 132 OF THE ACT. DURING THE COURSE OF SEA RCH, INCRIMINATING DOCUMENTS FOUND REVEALS THAT THE ASSE SSEE HAS INFLATED LABOUR CHARGES FOR THE ASSESSMENT YEARS 20 08-09 & 2009- 10. BASED ON THE DOCUMENTS FOUND DURING SEARCH, TH E ASSESSEE HAS ACCEPTED THAT HE HAS INFLATED 10% LABOUR CHARGE S AND WHICH IS COMMON IN THIS LINE OF BUSINESS. CONSEQUENT TO SEA RCH ACTION U/S 132 OF THE ACT, THE ASSESSEE CASE HAS BEEN CENTRALI ZED AND ACCORDINGLY FRESH ASSESSMENT PROCEEDINGS HAVE BEEN INITIATED BY ISSUING NOTICE U/S 153A/153C OF THE ACT FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH WAS CONDUCTED. THE ASSESSEE HAS FILED REVISED RETU RNS IN RESPONSE TO NOTICE U/S 153A OF THE ACT AND ADMITTED THE ADDI TIONAL INCOME ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 11 DISCLOSED DURING THE COURSE OF SEARCH. THE CASE HA S BEEN SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSEE WAS ASKED TO PRODUCE BOOKS OF ACCOUNTS AND RELEVANT BILLS & VOUCHERS IN SUPPORT OF EXPENDITURE CLAIMED. IN RE SPONSE, THE ASSESSEE FILED WRITTEN SUBMISSION AND STATED THAT T HE BOOKS OF ACCOUNTS ARE NOT AVAILABLE AND HENCE CANNOT BE FURN ISHED. THEREFORE, THE A.O. ISSUED A SHOW CAUSE NOTICE AND ASKED TO EXPLAIN WHY THE NET PROFIT FROM THE BUSINESS SHALL NOT BE ESTIMATED. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE HAS FILED A WRITTEN REPLY AND CONTENDED THAT THE INCOME FOR THE ASSESSMENT YEAR 2004-05, 2005-06 AND 2007-08 CANNOT BE TINKERE D WITH, AS THERE WAS NO INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH FOR THE ABOVE ASSESSMENT YEARS AND AS SUCH N O ADDITIONS CAN BE MADE TO THE RETURNED INCOME. IT IS FURTHER S UBMITTED THAT AS PER SEC. 153A OF THE ACT, DE-NOVO ASSESSMENT CAN BE MADE ONLY IN RESPECT OF THE ASSESSMENT YEAR FOR WHICH THE ASS ESSMENT PROCEEDINGS HAD BEEN ABATED AND THAT IN RESPECT OF ASSESSMENT YEARS FOR WHICH THE ASSESSMENT HAD ALREADY BEEN REA CHED A FINALITY, SUCH ASSESSMENT COULD NOT BE MADE U/S 153 A OF THE ACT UNLESS THERE WAS SEIZED MATERIALS. 20. THE A.O. HAS PASSED REASSESSMENT ORDERS U/S 153 A/153C OF THE ACT FOR ALL THE SIX ASSESSMENT YEARS IMMEDIATEL Y PRECEDING THE YEAR IN WHICH SEARCH WAS CONDUCTED. ACCORDING TO T HE A.O., AS PER THE PROVISIONS OF SECTION 153A OF THE ACT, THERE IS NO LIMITATION OR RESTRICTION PROVIDED IN THE NEW PROCEDURE OF SEARCH ASSESSMENTS ON THE POWERS OF A.O. FOR MAKING ASSESSMENT/REASSESSME NT AND THE A.O. IS NOT REQUIRED TO CONFINE HIS ASSESSMENTS ON THE MATERIAL FOUND DURING THE COURSE OF SEARCH AS WAS THE CASE I N THE OLD PROCEDURE OF BLOCK ASSESSMENTS. THE NEW PROCEDURE OF BLOCK ASSESSMENT WAS EXPLAINED BY WAY OF PROVISIONS OF SE CTION 153A OF THE ACT. AS PER SECTION 153A OF THE ACT, THE A.O. SHALL ASSESS OR REASSESS THE TOTAL INCOME OF THE SPECIFIED SIX ASSE SSMENT YEARS IRRESPECTIVE OF THE FACT THAT THE ASSESSMENT OF THE SAID YEARS WERE COMPLETED OR PENDING AS ON THE DATE OF SEARCH. THE REFORE, THE A.O. HAS REASSESSED THE INCOME OF SIX ASSESSMENT YE ARS AND RECOMPUTED THE PROFITS AFRESH AFTER CONSIDERING THE RELEVANT FACTS AVAILABLE ON RECORD. IT WAS THE CONTENTION OF THE ASSESSEE THAT THE A.O. CANNOT DISTURB THE COMPLETED ASSESSMENTS UNLES S THERE WAS A SEIZED MATERIAL. THE ASSESSEE FURTHER CONTENDED THA T WHERE ASSESSMENTS ARE NOT PENDING AS ON THE DATE OF SEARC H AND TIME LIMIT FOR ISSUE OF NOTICES U/S 143(2) OF THE ACT HA S BEEN EXPIRED, IRRESPECTIVE OF THE FACT THAT THOSE ASSESSMENTS HAV E BEEN COMPLETED U/S 143(1) OR 143(3) OF THE ACT, THEN THE A.O. HAS NO POWER TO REASSESS THE INCOME OF THOSE COMPLETED ASS ESSMENT YEARS. ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 12 21. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THE ISSUE NO LONGER RES INTEGRA, AS THE ISSUE HAS BEEN ALREADY DECIDED BY THE ITAT, SPECIAL BENCH AND HELD THAT WHERE THE ASSESSMENTS ARE NOT PENDING AS ON THE DATE OF SEARC H, THE A.O. LOSSES JURISDICTION U/S 153A OF THE ACT TO REASSESS THE INCOME OF THOSE COMPLETED ASSESSMENTS. THOUGH THE PROVISIONS OF SECTION 153A OF THE ACT DOES NOT SPECIFY ABATED AND COMPLET ED ASSESSMENTS, THE NATURAL MEANING ASSIGNED TO IT SHO ULD BE GIVEN TO INTERPRET THE PROVISIONS IN SUCH A WAY THAT WHICH S HALL NOT CAUSE UNDUE HARDSHIP TO THE TAX PAYERS. THE PROVISIONS OF SECTION 153A OF THE ACT EXPLAINED THE PROCEDURE OF ASSESSMENTS, ABA TED ASSESSMENTS AND THE MANNER IN WHICH THE ASSESSMENT SHOULD BE FRAMED, WHICH WAS FURTHER SUPPORTED BY CIRCULAR NO. 7 OF 2003 ISSUED BY THE CBDT. WHEN THE LAW HAS EXPLAINED THE POSITION OF ABATED ASSESSMENTS, THEN THE SAME WAY THE COMPLETED ASSESSMENT SHOULD BE TREATED SO AS TO UNDERSTAND THAT THOSE AS SESSMENTS ARE REACHED FINALITY AND WHICH CANNOT BE TINKERED WITH UNLESS THERE WAS A SEIZED DOCUMENT. THEREFORE, WE ARE OF THE CON SIDERED OPINION THAT WHERE SEARCH IS INITIATED, ALL PENDING ASSESSMENTS ARE MERGE INTO ONE AND ONLY ONE ASSESSMENT FOR EACH ASS ESSMENT YEAR SHALL BE MADE SEPARATELY ON THE BASIS OF FINDINGS O F SEARCH AND OTHER MATERIAL EXISTING OR BROUGHT ON RECORD BY THE A.O. IN RESPECT OF NON ABATED OR COMPLETED ASSESSMENTS, THE ASSESSM ENT WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNTS OR OTHER REL EVANT DOCUMENTS FOUND DURING THE COURSE OF SEARCH, BUT NO T PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT. 22. IN THE PRESENT CASE ON HAND, ON PERUSAL OF THE D OCUMENT AVAILABLE ON RECORD, WE FIND THAT THE ASSESSMENT FO R THE ASSESSMENT YEAR 2004-05 TO 2007-08 WERE NOT PENDING AS ON THE DATE OF SEARCH. THE FACT THAT THE ASSESSMENT HAS B EEN COMPLETED U/S 143(1) & 143(3) OF THE ACT ARE NOT MATERIAL. TH E TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT HAS BEEN EXPI RED. ON FURTHER VERIFICATION OF THE DOCUMENTS AVAILABLE ON RECORD, WE FIND THAT THERE WAS NO INCRIMINATING DOCUMENTS FOUND DURING T HE COURSE OF SEARCH IN RESPECT OF ASSESSMENT YEAR 2004-05 TO 200 7-08. THEREFORE, WE ARE OF THE OPINION THAT THE A.O. WAS NOT CORRECT IN REASSESSING THE TOTAL INCOME OF THE ASSESSMENT YEAR 2004-05 TO 2007-08 IN THE ABSENCE OF ANY SEIZED MATERIALS. AC CORDINGLY, WE DIRECT THE A.O. TO DELETE THE ADDITIONS MADE FOR TH E ASSESSMENT YEAR 2004-05, 2005-06 & 2007-08. 23. IT IS PERTINENT TO DISCUSS HEREIN THE CASE LAWS RELIED UPON BY THE ASSESSEE. THE ASSESSEE HAS RELIED UPON THE ITA T, SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO GLOBAL LOGI STICS LTD. VS. DCIT (2012) 137 ITD 287. THE COORDINATE BENCH OF T HIS TRIBUNAL, WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE HELD AS UNDER: ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 13 IN ASSESSMENTS THAT ARE ABATED, THE AO ARETAINS TH E ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON H IM U/S 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY. IN OTHER CASES, IN ADDITION TO T HE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE C ONTEXT OF RELEVANT PROVISIONS MEANS (I) BOOKS OF ACCOUNT, OTHER DOCU MENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 24. THE ASSESSEE RELIED UPON, A.P. HIGH COURT DECIS ION IN THE CASE OF CIT VS. M/S. AMR INDIA LTD. IN ITTA NO.354 O F 2014 DATED 12.6.2014. THE HONBLE HIGH COURT HELD THAT THE A.O . HAS NO JURISDICTION TO RE-AGITATE THE ASSESSMENTS WHICH WE RE ALREADY COMPLETED AND SUBSIDING. THE RELEVANT PORTION IS E XTRACTED BELOW: WE HAVE HEARD SRI J.V. PRASAD, LEARNED COUNSEL FOR THE APPELLANT, AND GONE THROUGH THE IMPUGNED JUDGEMENT AND ORDER O F THE LEARNED TRIBUNAL. IT APPEARS THAT THE LEARNED TRIBUNAL FOUND ON FACT T HAT AFTER COMPLETION OF ASSESSMENT PROCEEDINGS AND AFTER REAC HING FINALITY THEREON, THE ASSESSING OFFICER TRIED TO REAGITATE T HE ASSESSMENTS. ACCORDING TO US, THE LEARNED TRIBUNAL HAS RIGHTLY H ELD THAT THE ASSESSING OFFICER HAS NO JURISDICTION TO REAGITATE THE ASSESSMENTS WHICH WERE ALREADY COMPLETED AND SUBSISTING. WE TH EREFORE DO NOT FIND ANY ELEMENT OF LAW TO BE DECIDED IN THIS APPEA L. HENCE, THE APPEAL IS DISMISSED. THERE WILL BE NO O RDER AS TO COSTS. 25. THE ASSESSEE HAS RELIED UPON THE COORDINATE BEN CH DECISION OF ITAT, VISAKHAPATNAM IN THE CASE OF A.T. RAYUDU I N ITA NO.373 TO 379/VIZAG/2014. THE COORDINATE BENCH, UNDER SIMI LAR CIRCUMSTANCES HELD THE ISSUE IN FAVOUR OF THE ASSES SEE. THE RELEVANT PORTION IS REPRODUCED HEREUNDER: 22. IN THIS REGARD, IT IS ALSO PERTINENT TO REFER TO THE FOLLOWING OBSERVATIONS MADE BY THE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD (SUPRA):- 57 (F) IN THE CASE OF PARASHURAM POTTERY WORKS CO. LTD VS. ITO (106 JTR 57)(SC), IT HAS BEEN MENTIONED IN THE LAST PARAGRAP H OF THE JUDGMENT THAT THE COURT HAS TO BEAR IN MIND THAT THE POLICY OF LA W IS THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT ST ALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPS E OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI JUDICI AL CONTROVERSIES AS IT MUST IN ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 14 OTHER SPHERES OF HUMAN ACTIVITY. OUR DECISION IS IN CONSONANCE WITH THIS OBSERVATION. THE DECISION RENDERED BY THE SPECIAL BENCH THAT THE ASSESSING OFFICER CAN MAKE ADDITIONS IN THE CASE OF CONCLUDED ASSESSM ENTS ON THE BASIS OF INCRIMINATING MATERIALS IS ALSO BASED UPON THE DECI SION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF PARASHURAM POTTERY WOR KS CO. LTD (SUPRA). 23. WE HAVE EARLIER NOTICED THAT THE HON'BLE JURIS DICTIONAL ANDHRA PRADESH HIGH COURT HAS ALSO UPHELD BY THE ORDERS PASSED BY THE TRIBUNAL BY FOLLOWING THE DECISION RENDERED BY THE SPECIAL BENCH IN THE C ASE OF ALL CARGO GLOBAL LOGISTICS LTD (SUPRA) IN THE FOLLOWING CASES: - (A) SREE LALITHA CONSTRUCTIONS (J1TA NO 368 OF 2014) (B) M/S. HYDERABAD HOUSE PVT LTD (ITTA NO.266 OF 2 013) (C)M/S. AMR INDIA LTD (FITA NO.357 /V/2014) FURTHER WE AGREE WITH THE CONTENTIONS OF THE ASSESS EE THAT THE DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT IN THE CA SE OF GOPAL DAS BHADRUKA (SUPRA) HAVE BEEN RENDERED ON THE FACTS PREVAILING IN THOSE CASES, SINCE THE ISSUE RELATING TO CONCLUDED ASSESSMENTS AND PENDING ASSESSMENTS WAS NOT BEFORE THE I1ON'BLE ANDHRA PRADESH HIGH COURT ON TH E CONTRARY, THE ABOVE SAID THREE DECISIONS OF THE JURISDICTIONAL HIGH COU RT COMES TO THE SUPPORT OF THE ASSESSEE'S CONTENTIONS WITH REGARD TO THE LEGAL PROPOSITION AGITATED BEFORE US, BESIDES THE DECISIONS RENDERED BY VARIOU S OTHER HIGH COURTS. ACCORDINGLY, WE ARE OF THE VIEW THAT THE SCOPE OF E NQUIRY IN THE CASE OF UNABATED ASSESSMENTS, I.E., THE ASSESSMENT YEARS IN WHICH PROCEEDINGS ARE NOT PENDING, IS THAT THE UNDISCLOSED INCOME SHOULD BE ASCERTAINED ONLY ON THE BASIS OF MATERIALS FOUND DURING THE COURSE OF S EARCH. IF NO INCRIMINATING MATERIAL SHOWING ANY UNDISCLOSED INCOME WAS FOUND I N THE CASE OF CONCLUDED PROCEEDINGS, THEN THE QUESTION OF MAKING ANY ADDITION DOES NOT ARISE. IN THAT CASE, THE ASSESSING OFFICER SHOULD C OMPLETE THE ASSESSMENT OF THOSE YEARS BY DETERMINING THE VERY SAME TOTAL INCO ME THAT WAS ASSESSED IN THE EARLIER PROCEEDING. 24. IN VIEW OF THE ABOVE, WE ARE UNABLE TO AGREE W ITH THE CONTENTIONS OF LD STANDING COUNSEL THAT THE ASSESSING OFFICER W OULD GET UNFETTERED POWERS IN THE CASE OF UNABATED ASSESSMENTS, ONCE TH EY WERE REOPENED US 153A OF THE ACT. IN OUR VIEW, IN THE CASE OF UNA BATED ASSESSMENTS, THE TOTAL INCOME SHOULD BE DETERMINED BY THE ASSESSING OFFICER BY COMBINING THE INCOME ALREADY ASSESSED/DISCLOSED IN THE RETURN OF INCOME AND THE UNDISCLOSED INCOME, IF ANY, FOUND DURING THE COURSE OF SEARCH PROCEEDING. EVEN OTHERWISE, IT IS SETTLED PROPOSITION OF LAW TH AT THE ASSESSEE IS ENTITLED TO TAKE SUPPORT OF THE DECISION IN HIS FAVOUR, WHEN TWO CONTRADICTORY VIEWS HAVE BEEN EXPRESSED BY THE HIGH COURTS. IN TH E INSTANT CASE THE HONBLE JURISDICTIONAL HIGH COURT COMES TO THE SUPP ORT OF THE ASSESSEE IN RESPECT OF THE LEGAL PROPOSITION IN ADDITION TO THE DECISION RENDERED BY THE HON'BLE BOMBAY HIGH COURT. ACCORDINGLY, WE FIND MER IT IN THE CONTENTIONS ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 15 OF THE ASSESSEE ON THE LEGAL ISSUE. 26. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO RESPECTFULLY FOLLOWING THE COORDINATE BENCH DECISIO N IN THE CASE OF ALL CARGO LOGISTICS PVT. LTD. (SUPRA), WE ARE OF TH E OPINION THAT THE A.O. HAS MADE REASSESSMENT U/S 153A/153C OF THE ACT ON THE BASIS OF INFORMATION/MATERIAL AVAILABLE IN THE RETURN OF INCOME, WITHOUT REFERRING TO ANY SEIZED MATERIAL. THEREFORE, FOLLO WING THE SPECIAL BENCH DECISION (SUPRA) WE HOLD THAT THE A.O. HAD NO JURISDICTION TO MAKE ADDITIONS U/S 153A OF THE ACT FOR THE ASSESSME NTS WHICH ARE NOT PENDING AS ON THE DATE OF SEARCH. IN THIS CASE , THE SEARCH WAS CONDUCTED ON 14.7.2009. THE ASSESSMENT FOR THE ASS ESSMENT YEARS 2004-05 TO 2007-08, WERE NOT PENDING AS ON TH E DATE OF SEARCH. THE TIME LIMIT FOR ISSUE OF NOTICE UNDER S EC. 143(2) HAS BEEN EXPIRED. THEREFORE, THE A.O. HAS NO JURISDICTI ON TO REASSESS THE INCOME FOR THE ASSESSMENT YEAR 2004-05 TO 2007- 08 IN THE ABSENCE OF ANY INCRIMINATING MATERIALS. HENCE, WE DELETE THE ADDITIONS MADE BY THE A.O. FOR THE ASSESSMENT YEAR 2004-05, 2005-06 & 2007-08. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 14. IN THIS VIEW OF THE MATTER AND CONSIDERING FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO RESPECTFULLY FOLLOWING THE DE CISION OF CO-ORDINATE BENCH OF VISAKHAPATNAM, IN THE CASE OF L. SURYAKANT HAM VS. ACIT, IN ITA NOS.300 TO 305/VIZAG/2012, WE ARE OF THE VIEW THAT THE A.O. HAS MADE REASSESSMENT U/S 153A/153C OF THE ACT, ON THE BASIS OF INFORMATION/MATERIAL AVAILABLE IN THE RETURN OF INC OME, WITHOUT REFERRING TO ANY SEIZED MATERIAL. THEREFORE, FOLLOWING THE SPECI AL BENCH DECISION (SUPRA) WE HOLD THAT THE A.O. HAD NO JURISDICTION T O MAKE ADDITIONS U/S 153A OF THE ACT, FOR THE ASSESSMENTS WHICH ARE NOT PENDING AS ON THE DATE OF SEARCH. THE ASSESSMENT FOR THE ASSESSMENT Y EARS 2005-06 TO 2009-10 WERE NOT PENDING AS ON THE DATE OF SEARCH. THE TIME LIMIT FOR ISSUE OF NOTICE UNDER SEC. 143(2) HAS BEEN EXPIRED. THEREFORE, THE A.O. HAS NO JURISDICTION TO REASSESS THE INCOME FOR THE ASSESSMENT YEAR 2005- 06 TO 2009-10 IN THE ABSENCE OF ANY INCRIMINATING M ATERIALS. THE CIT(A) HAS RIGHTLY DELETED THE ADDITIONS. WE DO NOT SEE AN Y REASON TO INTERFERE WITH THE ORDER OF CIT(A). HENCE, WE INCLINED TO UPH OLD CIT(A) ORDER AND DIRECT THE A.O. TO DELETE THE ADDITIONS MADE TOWARD S DEEMED DIVIDEND FOR THE ASSESSMENT YEAR 2005-06 TO 2009-10. 12. IN THIS CASE, SEARCH WAS TAKEN PLACE ON 24.7.20 08. AS ON THE DATE OF SEARCH, THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2004-05 & 2005-06 ARE ALREADY CONCLUDED AND THERE IS NO PENDING PROCE EDING FOR THOSE ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 16 ASSESSMENT YEARS. THE TIME LIMIT FOR ISSUE OF NOTI CE U/S 143(2) OF THE ACT, FOR THE ASSESSMENT YEARS 2004-05 & 2005-06 HAS BEEN EXPIRED. THE A.O. MADE ADDITIONS TOWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT WITHOUT ANY INCRIMINATING MATERIALS AND ALSO BA SED ON THE BOOKS OF ACCOUNTS AND FINANCIAL STATEMENTS, WHICH WERE ALREA DY PART OF REGULAR RETURN OF INCOME FILED BY THE ASSESSEE U/S 139(1) O F THE ACT, FOR THOSE ASSESSMENT YEARS. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO RESPECTFULLY FOLLOWING THE DEC ISION OF COORDINATE BENCH OF ITAT, VISAKHAPATNAM IN THE CASE OF SRI HAR I PRASAD BHARARIA VS. DCIT (SUPRA), WE ARE OF THE VIEW THAT THE A.O. HAS NO JURISDICTION TO MAKE ADDITIONS IN RESPECT OF CONCLUDED ASSESSMENTS IN THE ABSENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH. IN THIS CASE, UNDOUBTEDLY THE A.O. HAS MADE ADDITIONS TOWAR DS DEEMED DIVIDEND ON THE BASIS OF FINANCIAL STATEMENTS FILED BY THE ASSESSEE ALONG WITH REGULAR RETURN OF INCOME WITHOUT ANY MATERIAL FOUND DURING THE COURSE OF SEARCH. THEREFORE, WE DIRECT THE A.O. TO DELETE ADDITIONS MADE TOWARDS DEEMED DIVIDEND U/S 2(22)(E) OF THE AC T FOR THE ASSESSMENT YEARS 2004-05 & 2005-06. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NOS.513 & 514/VIZAG/2013 FOR THE ASSESSMENT YEARS 2004-05 & 2 005-06 ARE ITA NO.513, 514 & 524/VIZAG/2013 Y.V. ANJANEYULU, GUNTUR 17 ALLOWED AND APPEAL FILED BY THE REVENUE IN ITA NO.5 24/VIZAG/2013 FOR THE ASSESSMENT YEAR 2004-05 IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 9 TH JUN17. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 9.6.2017 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SRI G. VENKATESWARA RAO, C.M. RA O & CO., CHARTERED ACCOUNTANTS, D.NO.5-87-22, SAI BALAJI HOUSE, LAKSHM IPURAM, GUNTUR 2. / THE RESPONDENT THE DCIT, CENTRAL CIRCLE, VIJAY AWADA 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM