DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR V. M/S A.M. EXPORTS , JAIPUR

ITA 561/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8444 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANJAN KUMAR
• Assessee Lawyers: GULSHAN AGARWAL CA DH R
• Keywords: Bogus Share capital; Revision of order; Search and seizure; Question of law; Tangible material; Fair market value; Accommodation entries; Block assessment; Retraction; Revised return; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 260A; 133(6); 139(5); 143(1); 147; 131; 148; 132; 139; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 561/JP/2018 FU/KZKJ.K O'KZ @ ASSESSMENT YEAR : 2010-11 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1 , JAIPUR. CUKE VS. M/S A.M. EXPORTS. 197, JOHARI BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPFA 6271 L VIHYKFKHZ@ APPELLAN T IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI RANJAN KUMAR (CIT-DR) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL & SHRI GULSHAN AGARWAL (CA). LQUOKBZ DH RKJH[K @ DATE OF HEARING: 13/12/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 07/01/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 21/02/2018 OF LD. CIT(A)-4, JAIPUR FOR THE A.Y. 2010-11. THE R EVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) WAS RIGHT IN DECIDING THAT NO ADDITION CAN B E MADE DURING ASSESSMENT U/S 153A, IN THE ABSENCE OF INCRIMINATIN G DOCUMENTS. (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 4, 82,00,000/- U/S 68 OF THE IT ACT. THE APPELLANT CRAVES, LEAVE OR RESERVES THE RIGHT TO AMEND, ALTER, ADD OR FOREGO ANY GROUND(S) AT ANY TIME BEFORE OR DURIN G THE HEARING OF THIS APPEAL. 2 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 2. THE ASSESSEE IS A PARTNERSHIP FIRM AND ENGAGED I N THE BUSINESS OF MANUFACTURING AND TRADING OF GOLD AND SILVER ORNAME NTS, PRECIOUS/SEMI PRECIOUS AND COLOURED STONES ETC. THE ASSESSEE FILE D ITS RETURN OF INCOME U/S 139(1) OF THE INCOME TAX ACT, 1961 (IN SHORT TH E ACT) ON 11/10/2010 DECLARING TOTAL INCOME OF RS. 19,72,000/-. SUBSEQUE NTLY THERE WAS A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 03/ 4/2013 AT THE BUSINESS PREMISES OF THE ASSESSEE. DURING THE COURSE OF SEAR CH FROM 03/04/2013 TO 05/04/2013, STATEMENT OF THE ASSESSEE WAS RECORDED ON THREE DAYS. EVEN DURING THE POST SEARCH INVESTIGATION, THE STATEMENT OF THE ASSESSEE WAS AGAIN RECORDED ON 30/5/2013. CONSEQUENTLY, THE ASSE SSING OFFICER ISSUED NOTICE U/S 153A OF THE ACT AND COMPLETED THE REASSE SSMENT BY MAKING THE ADDITION ON ACCOUNT OF LOAN TAKEN BY THE ASSESSEE F ROM 12 PARTIES, TOTAL AMOUNTING TO RS. 4,82,00,000/- U/S 68 OF THE ACT. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESS ING OFFICER BEFORE THE LD. CIT(A). THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON TWO ASPECTS VIZ (I) THERE WAS NO INCRIMI NATING MATERIAL EITHER FOUND OR SEIZED DURING THE SEARCH AND SEIZURE ACTIO N AND FURTHER THE ASSESSEE HAS ESTABLISHED THE CLAIM OF GENUINENESS O F THE TRANSACTION, CREDITWORTHINESS AND IDENTITY OF THE CREDITORS BY P RODUCING THE EVIDENCE. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE RE VENUE HAS FILED THE PRESENT APPEAL. 3 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 5. BEFORE US, THE LD CIT-DR HAS SUBMITTED THAT DURI NG THE STATEMENT RECORDED ON OATH U/S 132(4) OF THE ACT, THE MANAGIN G PARTNER SHRI MAHENDRA KUMAR AGARWAL ADMITTED TO HAVE RECEIVED AC COMMODATION ENTRIES OF LOAN. THE LD CIT-DR HAS REFERRED TO THE QUESTION NO. 77 OF THE STATEMENT RECORDED U/S 132(4) OF THE ACT ON 04/4/20 13, THEREFORE, THE ADMISSION OF THE ASSESSEE IN THE STATEMENT RECORDED U/S 132(4) IS AN ADMISSIBLE EVIDENCE FOR ESTABLISHING THE FACT THAT THE ALLEGED LOANS WERE TAKEN BY THE ASSESSEE AS ACCOMMODATION ENTRIES. THE ASSESSEE HAS ALSO EXPLAINED THAT THE LOANS WERE ONLY BOOK ENTRIES TAK EN BY IT TO ADJUST HIS UNACCOUNTED CASH. THEREFORE, ONCE THE TRANSACTION I TSELF WAS BOGUS DEDUCTED DURING THE COURSE OF SEARCH, THEN THE ADDI TION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT WHILE COMPLETIN G ASSESSMENT U/S 153A OF THE ACT IS JUSTIFIED. THE LD. CIT-DR HAS FURTHER CONTENDED THAT THOUGH THE ASSESSEE HAS REITERATED ITS EARLIER STATEMENT, HOWEVER, THE STATEMENT GIVEN ON OATH IS AN ADMISSIBLE EVIDENCE AND THE RET RACTION OF THE ASSESSEE WILL NOT AFFECT THE EVIDENTIARY VALUE OF THE STATEM ENT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION DATED 1 3/5/2016 OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS RAVI MATHUR IN DBIT NO. 67/2012 WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT THE STATEMENT RECORDED U/S 132(4) OF THE ACT HAVE GREAT EVIDENTIA RY VALUE AND IT CANNOT BE DISCARDED BY SIMPLY ON THE BASIS OF THE RETRACTE D STATEMENT GIVEN BY THE ASSESSEE. FURTHER THE PAYMENT OF INTEREST CLAIM ED BY THE ASSESSEE WAS 4 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS NOT FOUND TO BE SHOWN AS INCOME IN THE HANDS OF THE RECIPIENT. ALL THE LOAN CREDITOR COMPANIES ARE PAPER/SHELL COMPANIES WITHOU T ANY ACTUAL BUSINESS TRANSACTIONS, THEREFORE, THE LD. CIT(A) HAS COMMITT ED AN ERROR IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. 6. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE LOANS WERE RECEIVED IN THE MONTH OF MARCH, 2010 AND WERE ALREADY REPAID BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH ON 03/4 /2013. THEREFORE, THERE WAS NO OUTSTANDING OF ANY LOAN AS ON THE DATE OF SE ARCH. DURING ALL THESE YEARS, THE ASSESSEE HAS PAID INTEREST AFTER DEDUCTI ON OF TDS WHICH WAS ALLOWED BY THE ASSESSING OFFICER, THEREFORE, IN ABS ENCE OF ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE C OURSE OF SEARCH AND SEIZURE ACTION, NO ADDITION CAN BE MADE TO THE INCO ME OF THE ASSESSEE WHEN THE ASSESSMENT WAS NOT PENDING ON THE DATE OF SEARCH. THE LD AR HAS POINTED OUT THAT THE ASSESSEE FILED RETURN OF I NCOME U/S 139(1) OF THE ACT ON 11/10/2010 AND THE TIME TO ISSUE NOTICE U/S 143(2) OF THE ACT EXPIRED ON 30/10/2011 AND THEREFORE, THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS NOT PENDING AS ON THE DATE OF SEARCH. ADMITTEDLY THERE IS NOT INCRIMINATING MATERIAL OR D OCUMENT WAS FOUND DURING THE COURSE OF SEARCH DISCLOSING ANY UNDISCLO SED INCOME OF THE ASSESSEE. ALL THE TRANSACTIONS OF LOAN WERE DULY RE CORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND WERE SUBJECTED TO A VER IFICATION OF THE ASSESSING OFFICER. THE LD AR HAS FURTHER SUBMITTED THAT THE ALLEGED 5 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ADMISSION IN THE STATEMENT RECORDED U/S 132(4) OF T HE ACT IS NOTHING BUT IT WAS OBTAINED BY THE DEPARTMENT WHEN THE ASSESSEE WA S CONTINUOUSLY GRILLED FOR THREE DAYS TO GET THIS ADMISSION. HE HA S REFERRED TO THE QUESTION NO. 77 AND AGAIN REFERRED TO QUESTION NO. 39 WHICH WAS ALREADY PUT TO THE ASSESSEE PRIOR TO QUESTION NO. 77 AND IN REPLY TO T HE QUESTION NO. 39, THE ASSESSEE HAS CLEARLY STATED THAT NO OUTSTANDING WAS THERE AND IT WAS A GENUINE LOAN WHICH WAS ALREADY REPAID, HOWEVER, THE DEPARTMENT HAS INSISTED THE ASSESSEE AGAIN AND PUT THE SAME QUESTI ON NO. 77. THE LD AR HAS REFERRED TO THE ANSWER TO THE ASSESSEE AND SUBM ITTED THAT IT WAS ONLY DUE TO CONFUSION AND AS A RESULT OF STRESS OF CONTI NUOUS INVESTIGATION BY THE DEPARTMENT FOR THREE DAYS THAT THE ASSESSEE HAS STATED THAT LOAN FROM ONE PARTY OUT OF THE 12 WAS AN ACCOMMODATION ENTRY. HOWEVER, DURING THE STATEMENT RECORDED U/S 131 OF THE ACT ON 30/5/2013 AS PART OF THE POST SEARCH INVESTIGATION, THE ASSESSEE HAS AGAIN CLARIF IED THAT IT WAS A MISTAKE ON THE PART OF THE ASSESSEE TO SAY THAT THE LOAN WA S AN ACCOMMODATION ENTRY. EVEN OTHERWISE IT WAS ONLY IN RESPECT OF ONE PARTY NAMELY M/S DIPNARAYAN VYAPAR PVT. LTD.. THUS, THE LD AR HAS SU BMITTED THAT IT IS NOT A CASE OF RETRACTION OF THE ASSESSEE JUST TO DENY THE ADMISSION BUT THE STATEMENT OF THE ASSESSEE WAS RECORDED IN THE CONTI NUATION OF INVESTIGATION OF THE DDIT AS THE ASSESSEE WAS SUMMO NED U/S 131 AND AGAIN ASK TO EXPLAIN ABOUT THE LOANS IN WHICH THE A SSESSEE HAS EXPLAINED THAT THE STATEMENT MADE IN QUESTION NO. 77 WAS MIST AKENLY GIVEN BY THE 6 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ASSESSEE DUE TO CONSISTENT PRESSURE. THE LD AR HAS THUS, CONTENDED THAT WHEN THERE IS NO INCRIMINATING MATERIAL FOUND OR SE IZED DURING THE SEARCH AND SEIZURE ACTION AND THE ASSESSEE WAS NOT PENDING OR ABATED BY VIRTUE OF THE SEARCH THEN NO ADDITION CAN BE MADE TO THE T OTAL INCOME OF THE ASSESSEE WHILE PASSING THE ASSESSMENT U/S 153A OF T HE ACT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. BEST INFRASTRUCTURE (INDIA) PVT. LTD. 397 ITR 82 (DEL) AND SUBMITTED THAT THE HON'BLE HIGH COURT HAS FOLLOWED THE EARLIER DECISION IN CASE OF PR.CIT VS. MEETA GUTGUT IA (2017) 395 ITR 526 AND THE SLP FILED BY THE REVENUE AGAINST THE DECISI ON IN THE CASE OF PR.CIT VS. MEETA GUTGUTIA HAS ALREADY BEEN DISMISSED BY TH E HON'BLE SUPREME COURT. THE LD AR HAS SUBMITTED THAT THE DECISION IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 573 (DE) HAS BEEN FOLLOWED IN THE CASE OF MEETA GUTGUTIA, THE SLP WHICH HAS BEEN DISMISSED BY THE H ON'BLE SUPREME COURT REPORTED IN 257 TAXMAN 441. THE LD AR HAS RELIED UP ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF JA I STEEL (INDIA) VS ACIT (2013) 259 CTR 281 (RAJ). HENCE, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION ON THE GROUND THAT THERE WAS NO INCRIMINAT ING MATERIAL FOUND OR SEIZED DURING THE SEARCH AND SEIZURE OPERATION. 6.1 ON MERITS, THE LD AR OF THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSING OFFICER ISSUED NOTED U/S 136 OF THE ACT T O ALL THE LOAN CREDITORS WHICH WAS DULY RESPONDED. THE ASSESSEE HAS ALSO FIL ED ALL THE RELEVANT 7 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS SUPPORTING DOCUMENTARY EVIDENCE IN RESPECT OF ALL T HE LOAN CREDITORS TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR AS WELL AS GENUINENESS OF THE TRANSACTION. HE HAS REFERRED TO THE DOCUMENTS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IN SUPPOR T OF THE CLAIM AT PAGE NO. 207 TO 505 OF THE PAPER BOOK. FURTHER NO CASH W AS EITHER FOUND OR DEPOSITED IN THE BANK ACCOUNTS AND THE LOAN CREDITO RS TO ARRIVE TO THE CONCLUSION THAT THESE ARE ACCOMMODATION ENTRIES AGA INST THE PAYMENT OF THE CASH. IN SUPPORT OF HIS CONTENTION, HE HAS RELI ED UPON THE DECISION OF HONBLE MUMBAI HIGH COURT IN THE CASE OF CIT VS. DE EPAK KUMAR AGARWAL 398 ITR 586 AND THE DECISION OF THE KOLKATA BENCHES OF THE TRIBUNAL IN THE CASE OF ITO VS M/S SHLOK FASHIONS PVT. LTD. ORDER D ATED 07/12/2018 IN ITA NO. 695/KOL/2017. THE LD AR HAS ALSO REFERRED TO TH E MASTER DATA OF ROC/MCA AND SUBMITTED THAT NONE OF THE LOAN CREDITO R COMPANY HAS BEEN SHOWN IN THE CATEGORY OF NON-ACTIVE BUT ALL ARE IN THE CATEGORY TO ACTIVE COMPANIES, THEREFORE, WITHOUT ANY TANGIBLE MATERIAL , THE ASSESSING OFFICER HAS TREATED THE LOAN TRANSACTION AS ACCOMMODATION E NTRIES ON SURMISES AND CONJECTURES. HE HAS SUPPORTED THE FINDING OF TH E LD. CIT(A). 7. IN REJOINDER, THE LD CIT-DR HAS SUBMITTED THAT T HE DECISION IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) AS WELL AS THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. MEETA GU TGUTIA (SUPRA) ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE AS FOR FRAMI NG OF ASSESSMENT U/S 153A OF THE ACT. THERE IS NO REQUIREMENT OF ANY INC RIMINATING DOCUMENT 8 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS FOUND OR SEIZED DURING THE SEARCH. HE HAS REITERATE D ITS CONTENTION THAT THE STATEMENT ON OATH IS AN ADMISSIBLE EVIDENCE. HE HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF MUNJAL SHOWA LTD. VS. DCIT 211 TAXMAN 61 (DEL). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE FIRST ASPECT INVOLVED IN TH E MATTER IS SUSTAINABILITY OF THE ADDITION MADE BY THE ASSESSING OFFICER WITHO UT ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARC H AND SEIZURE ACTION. THERE IS NO DISPUTE THAT THE ORIGINAL RETURN OF INC OME FILED BY THE ASSESSEE U/S 139(1) OF THE ACT ON 11/10/2010 WAS NOT PENDING ASSESSMENT AS ON THE DATE OF SEARCH ON 03/4/2013. THEREFORE, THE ASS ESSMENT WAS COMPLETED U/S 143(1) AND IT WAS NOT ABATED DUE TO T HE SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 03/4/2013. THE ORDER O F THE ASSESSING OFFICER IS BASED ON THE STATEMENT OF THE ASSESSEE RECORDED U/S 132(4) OF THE ACT AND SPECIFICALLY THE QUESTION NO. 77. IT IS PERTINE NT TO NOTE THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION, THE STATEMENT OF THE ASSESSEE WAS BEING RECORDED FROM 04/4/2013 TO 05/4/2013 AND AS M ANY AS 78 QUESTIONS WERE PUT TO THE ASSESSEE. THE STATEMENT OF THE ASSE SSEE RECORDED U/S 132(4) RUNS INTO ABOUT 50 PAGES. THE STATEMENT OF T HE ASSESSEE WAS RECORDED FROM 12.00 NOON ON 04/4/2013 AND CONTINUED UP TO 1.00 A.M. ON 05/4/2013. AFTER THE BREAK, THE RECORDING OF STATEM ENT AGAIN RESUMED AT 7.50 A.M. ON 05/4/2013 WE NOTE THAT UP TO QUESTION NO. 67 WERE RECORDED 9 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ON 04/4/2013 AND UP TO 1.00 A.M. ON 05/4/2013 AND T HEREAFTER THE STATEMENT OF THE ASSESSEE WAS AGAIN RESUMED IN THE MORNING OF 05/4/2013 AND CONTINUED UP TO QUESTION NO. 78. IT I S MANIFEST FROM THE STATEMENT RECORDED U/S 132(4) OF THE ACT THAT REPEA TED QUESTIONS WERE ASKED ABOUT THE GENUINENESS OF THE LOANS TAKEN BY T HE ASSESSEE DURING THE FINANCIAL YEAR 2009-10 RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION AND THE ASSESSEE HAS GIVEN THE ANSWER AND STATED THAT ALL THESE LOANS ARE GENUINE AND TAKEN THROUGH BANKING C HANNEL AND THE ASSESSEE ALSO REPAID THESE LOANS PRIOR TO THE DATE OF THE SEARCH. THESE TRANSACTIONS ARE VERY MUCH PART OF THE REGULAR BOOK S OF ACCOUNT OF THE ASSESSEE. HOWEVER, THE SEARCH TEAM AGAIN PUT QUESTI ON TO THE ASSESSEE AS QUESTION NO. 77 IN WHICH THE ASSESSEE HAS STATED TH AT THE ASSESSEE HAS CHECKED THE DETAILS OF THE LOANS FROM M/S DIPNARAYA N VYAPAR PVT. LTD. FOR WHICH THE ASSESSEE RECEIVED CASH AND THE SAME WAS D ECLARED AS UNDISCLOSED INCOME FOR THE YEAR OF THE SEARCH. WE F IND THAT PRIOR TO THAT THE ASSESSEE WAS ALSO ASKED QUESTION NO. 34 TO 36 A ND QUESTION NO. 39. EVEN AFTER THE STATEMENT RECORDED U/S 132(4) OF THE ACT, THE INVESTIGATION WING AGAIN SUMMONED THE ASSESSEE U/S 131 OF THE ACT FOR CONDUCTING POST SEARCH ENQUIRY AND THE STATEMENT OF THE ASSESS EE WAS RECORDED ON 30/05/2013 WHEREIN IN RESPONSE TO QUESTION NO. 12, THE ASSESSEE CLARIFIED THAT THE EARLIER STATEMENT OF THE ASSESSEE IN QUEST ION NO. 77 WAS NOT A CORRECT STATEMENT REGARDING THE LOAN TAKEN FROM M/S DIPNARAYAN VYAPAR 10 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS PVT. LTD.. THUS, FOR UNDERSTANDING OF THE ISSUE, AL L THE RELEVANT QUESTIONS PUT TO THE ASSESSEE AND ANSWERED TO THEM ARE TO BE READ CONJOINTLY. HENCE, WE QUOTE QUESTION NO. 34 TO 36 AND QUESTION NO. 39 OF ASSESSEES STATEMENT RECORDED U/S 132(4) DATED 04/4/2013 AND Q UESTION NO. 77 OF STATEMENT RECORDED U/S 132(4) ON 05/4/2013 AND QUES TION NO. 12 AND REPLY OF THE STATEMENT OF THE ASSESSEE RECORDED U/S 131 OF THE ACT IN POST SEARCH INVESTIGATION BY THE ADIT AS UNDER: IZ IZIZ IZ- -- -34 3434 34 ESA VKILS VKIDH HKKXHNKJH QEZ ,-,E-,DLIKSVLZ CQD ESA FUEUFYF[KR VUFLD;KSJMZ YKSU SFMVLZ DS YSTJ FN[KK JGK GW& (I) INTERLINK SAVING & FINANCE PVT. LTD. 57 ADARSH NAGA R, RISHIKESH, DEHRADUN, UTTRANCHAL. (II) PARMATMA DEVELOPERS PVT. LTD., 101, BALARAM DEY STR EET, GR FLOOR, KOLKATA (III) RAMESHWAR FINVEST PVT. LTD., 101 BALARAM DEY STREET , KOLKATA (IV) SRI RAM TIE UP PVT. LTD., 2, BANARASHI GHOSH, 2 ND BYE LANE, KOLKATA (V) ________________________DO ________________________ _ (VI) TARA VINIMAY PVT. LTD., 101, BALARAM DEY STREET, G. FLOOR, KOLKATA (VII) VICTOR PROJECT PVT. LTD., 2 MULLICK STREET, IST FLOO R, KOLKATA (VIII) YATAN TRADERS PVT. LTD., 62/1, HRIDAY KRISHNA BANER JEE LANE, HOWRAH. MIJKSDR LHKH TRANSACTIONS DH IZEK.K LI'V DJSA\ MKJ MKJ MKJ MKJ& MIJKSDR [KKRKSA DH UDYKSA DKS ESAUS NS[KDJ ;G DGUK PKGRK GW ;G FOK O'KZ 2009&2010 C;KT IJ DTKZ FY;K GQVK FOK O'KZ 2011&12 ESAUSA PQDK FN;KA IZ IZIZ IZ- -- -35 3535 35 MIJKSDR OF.KZR LHKH DEIFU;KA VKIDS LEIDZ ESA DSL S VK;H FOOJ.K NSA MKJ MKJ MKJ MKJ& ESJH QEZ }KJK T;IQJ ,OA T;IQJ DS CKGJ ESA TGK A LS HKH O;KIKJ DS FY, EQ>S DTKZ IZKIR GQVK ESAUS FY;K RFKK YKSVK;K ,OA XR O'KKSZA E AS BULS ESJK LEIDZ DSLS JGK EQ>S VHKH ;KN UGHA VK JGK GSA 11 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS IZ IZIZ IZ- -- -36 3636 36 BU DEIFU;KSA LS D;K JSV VKWQ BUVSLV FN;K GS FOOJ. K NS\ MKJ& MKJ& MKJ& MKJ& XR O'KKSZA DH CKR EQ>S TCKUHRKSJ IJ ;KN UGHA GSA ;G QEZ }KJK IS'K DH XBZ [KKRKSA ESA X.KUK DJ FUDKYUK GKSXK TKS JHEKU~ DS DK;KZY; ES A GKTJH NSUS VKAXK TC X.KUK DJ CRKAXKA IZ IZIZ IZ- -- -39 3939 39 VKIDH QEZ A.M. EXPORTS DK DIPNARAYAN VYAPAAR PVT. LTD. DS LKFK D;K LECU/K GS] LI'V DJSA\ MKJ MKJ MKJ MKJ& ESAUS DIPNARAYAN VYAPAAR PVT. LTD. LS YXHKX RHU O'KZ IGYS C;KT LS ISLK M/KKJ FY;K FKK EQ>S ;G ISLK FDL C;KT NJ IJ FNYK;K FKK EQ> S VHKH ;KN UGHA VK JGK GSA DIPNARAYAN VYAPAAR PVT. LTD. LS FDL O;FDR DS EK/;E LS ISLK M/KKJ FY;K FKK VHKH EQ>S ;KN UGHA VK JGK GSA BL LECU/K ESA TKU DKJH IZKIR DJ ESA VKIDKS CRK NWAXKA IZ IZIZ IZ- -- -77 7777 77 GEUS IZ'U LA- 39 ESA A.M. EXPORTS ,OA DIPNARAYAN O;KIKJ DS TRANSACTIONS DS CKJS ESA IWNK RKS VKIUS V/KWJH TKUDKJH NH FKH D;K V C VKIDKS BL CKCR~ VKSJ VF/KD FOOJ.K CRKUK GS\ MKJ MKJ MKJ MKJ& TH GK] ESJS DKS NKS FNU LS ;KN DJRS GQ, ;K N VK JGK GS ,OA FOHKKX LS LG;KSX DH BPNK J[KRS GQ, CRKUK PKGRK GW FD ESAUS ESLLZ DIPNARAYAN VAYAPAR PRIVATE LIMITED DKS PSD FN;K FKK FTLDK EQ>S BL LKY ESA DS'K IZKIR G KS X;K FTLS ESAUS BL FOK O'KZ DH V?KKSF'KR VK; DS :I ESA FOHKKX DKS LEFIZR DJ FN;KA IZ IZIZ IZ- -- -12 1212 12 VKIUS IZ'U LA[;K 11 DS TOKC ESA ,USDLJ AS EXIBIT- 5 DS IST LA[;K 37 D TOKC ESA CRK;K FD VKIUS ESLLZ NHIUKJK;.K O;KIKJ IZK -FY- LS C;KT IJ ISLK FY;K GQVK GSA MLDK , ,E ,DLIKSVZ DH YS[KK IQLRDKSA ESA F NUKAD 01-04-11 LS FNUKAD 31-03-12 DH VOF/K DK YSTJ GSA ESA VKIDKS RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU VKIDS L'KIFK NTZ C;KU DK IZ'U LA[;K 77 FN[KK JGK GW FTLDS MRRJ ESA VKIUS DGK FKK FD------- TH GKA ESJS DKS NKS FNU LS ;KN DJRS GQ, ;KN VK JG K GS ,OA FOHKKX LS LG;KSX DH BPNK J[KRS GQ, CRK;K PKGRK GWA FD ESAUS ESLLZ NH IUKJK;.K O;KIKJ IZK-FY- DKS PSD FN;K FKK FTLDK EQ>S BL LKY ESA DS'K IZKIR GKS X ;K FTLS ESAUS BL FORR O'KZ DH V?KKSF'KR VK; DS :I ESA FOHKKX DKS LEFIZR DJ FN; KA D`I;K RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU VKIDS L 'KIFK NTZ C;KU DK IZ'U LA[;K 77 DS TOKC DKS ,D CKJ IQU% I<+DJ LE> YSOSA FD VKIUS MIJKSDR IZ'U LA[;K 11 DS TOKC ESA D;K LGH MRRJ FN;K GSA BL LACA/ K ESA ESA VKIDK /;KU VK;DJ VF/KFU;E 1961 DS VFHK;KSTU IZKO/KKUKSA DH RJQ VKIDK /;KU VKDF'KZR DJUK PKGRK GW FD XYR C;KUH DH N'KK EAS VKIDS FO:) VFHK;KSTU DH DK;ZOKGH IZKJEHK DH TK LDRH GSA D`I;K ,D CKJ IQU% L KSPDJ CRK;SA FD VKIUS 12 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ESLLZ NHIUKJK;.K O;KIKJ IZK-FY- LS FDRUK :I;K M/KKJ FY;K GS VFKOK VKIUS PSD NSDJ MULS OKIL UXN JKF'K IZKIR DH FKH] LI'V DJSAA MKJ MKJ MKJ MKJ& ESAUS VKIDS }KJK FN[KK;S X;S ,USDLJ AS EXIBIT -5 DS IST LA[;K 37 ,OA RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU NTZ ESJS C;KUKSA DKS VPN H RJG LS I<+DJ LE> FY;K GSA ESA ;GKA ;G DGUK PKGRK GWA FD RYK'KH ,OA T CRH DH DK;ZOKGH DS NKSJKU FOHKKX DS VF/KDKFJ;KSA }KJK BL LACA/K ESA EQ >LS CKJ&CKJ IWNK X;K RKS ESAUS EKUFLD :I LS FKDDJ ;G TOKC NS FN;K FKKA YSFDU VC ES AUS VIUH IWJH YS[KK IQLRDKSA DKS NS[K FY;K GS VKSJ ESA VC ;G 'KIFKIWOZD C;KU DJUK PKGRK GW FD ESAUS ESLLZ NHIUKJK;.K O;KIKJ IZK-FY- PSD LS C;KT I J ISLK FY;K FKK ,OA MLDK HKQXRKU HKH PSD LS GH FD;K GSA ESAUS BL DEIUH DS LK FK DKSBZ UXN YSU&NSU UGHA FD;K GSA TGKA RD VK;DJ IZKO/KKUKSA DH CKR GS M LDS LACA/K ESA ESJS C;KU NTZ DJRS ODR FOHKKX }KJK EQ>S VOXR DJK FN;K X;K FKK TKS ESJH TKUDKJH ESA GSA FQJ HKH ESA IW.KZ :I LS LARQ'V GKSDJ BL I`'B DS CKJS ESA TOKC NS JGK GWAA IN REPLY TO THE QUESTION NO. 34, THE ASSESSEE HAS C LEARLY STATED THAT THE TRANSACTION OF LOAN FROM ALL THE PARTIES WERE TAKEN ON INTEREST IN THE F.Y. 2009-10 AND THESE WERE REPAID IN THE F.Y. 2011-12. THEREAFTER A SPECIFIC QUESTION WAS PUT TO THE ASSESSEE REGARDING THE LOAN TAKEN FROM M/S DIPNARAYAN VYAPAR PVT. LTD. AS QUESTION NO. 39 AND IN REPLY TO THE SAME, THE ASSESSEE STATED THAT THE LOAN WAS TAKEN ABOUT T HREE YEARS BACK ON INTEREST BUT THE ASSESSEE WAS NOT ABLE TO REMEMBER THE PERSON THROUGH WHOM THE LOAN WAS TAKEN. THEREFORE, THERE WAS NO AM BIGUITY IN THE REPLY TO QUESTION NO. 39 EXCEPT THAT THE ASSESSEE WAS NOT ABLE TO TELL THE NAME OF THE PERSON WHO HELPED THE ASSESSEE IN PROCURING THE LOAN. SINCE THE INVESTIGATION WING WAS NOT SATISFIED WITH THE ANSWE RS OF THE ASSESSEE AS THEY COULD NOT EXTRACT THE STATEMENT WHICH CAN BE U SED AGAINST THE ASSESSEE, THEREFORE, QUESTION WERE CONTINUOUSLY PUT TO THE ASSESSEE FOR TWO DAYS AND IT IS A MATTER OF RECORD THAT THE ASSE SSEE WAS GRILLED UP TO 13 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 1.00 A.M. ON THE NIGHT OF 04/4/2013 AND AGAIN RESTA RTED IN THE MORNING AT 7.50 A.M. AND THE QUESTION NO. 77 WAS AGAIN ASKED S PECIFICALLY REGARDING LOAN FROM M/S DIPNARAYAN VYAPAR PVT. LTD. IN REPLY TO THAT THE ASSESSEE HAS EXPLAINED THAT AFTER TRYING TO REMEMBER FOR CON TINUOUSLY FOR TWO DAYS AND HOPING THE COOPERATION FROM THE DEPARTMENT, HE SAID THAT HE RECEIVED CASH AGAINST THE SAID LOAN WHICH WAS DECLARED AS UN DISCLOSED INCOME FOR THE YEAR OF SEARCH. THE INVESTIGATION WING WAS STIL L NOT SATISFIED WITH THE STATEMENT OF THE ASSESSEE AND AGAIN CALLED THE ASSE SSEE FOR FURTHER INVESTIGATION ON 30/5/2013 AND THEREAFTER ON 21/6/2 013. THE ASSESSEE WAS AGAIN PUT THE QUESTION ABOUT THE LOAN TAKEN FRO M M/S DIPNARAYAN VYAPAR PVT. LTD., IN REPLY, THE ASSESSEE EXPLAINED THAT ON REPEATED INSTANCES OF THE INVESTIGATION TEAM AND DUE TO EXHA USTED MIND, THE ASSESSEE GIVEN AN INCORRECT REPLY TO QUESTION NO. 7 7 RECORDED U/S 132(4) OF THE ACT ON 05/4/2013 AND AGAIN STATED THAT AFTER VERIFYING THE BOOKS OF ACCOUNT, THE SAID LOAN WAS TAKEN ON INTEREST AND WA S ALSO REPAID BOTH THE TRANSACTIONS ARE THROUGH BANKING CHANNEL. THUS, HAV ING REGARD TO THE BACKGROUND OF THE CIRCUMSTANCES IN WHICH STATEMENT OF THE ASSESSEE REGARDING SAID TRANSACTION OF LOAN FROM M/S DIPNARA YAN VYAPAR PVT. LTD. WAS RECORDED AND FINALLY STATEMENT RECORDED IN POST SEARCH INQUIRY WE ARE OF THE VIEW THAT THE ASSESSEE FINALLY CLARIFIED THE ISSUE IN THE STATEMENT RECORDED U/S 131 OF THE ACT AND THEREFORE, THERE WA S NO ADMISSION ON THE PART OF THE ASSESSEE. EXCEPT THE STATEMENT OF PARTN ER OF THE ASSESSEE, 14 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS THERE WAS NOTHING INCRIMINATING FOUND OR SEIZED DUR ING THE COURSE OF SEARCH AND SEIZURE ACTION, THEREFORE, THE STATEMENT OF THE ASSESSEE RECORDED DURING THE SEARCH AND POST SEARCH ENQUIRY HAS TO BE READ TOGETHER AND THE OUTCOME OF THE SAID STATEMENT IS T HAT THE ASSESSEE HAS NEVER ADMITTED ANY BOGUS TRANSACTION EXCEPT THE MIS UNDERSTANDING DUE TO CONTINUOUS GRILLING BY THE INVESTIGATION WING AND D UE TO MENTALLY EXHAUSTED, THE ASSESSEE GIVEN SOME INCONSISTENT REP LY TO QUESTION NO. 77 WHICH WAS SUBSEQUENTLY CLARIFIED IN QUESTION NO. 12 OF THE STATEMENT RECORDED BY THE INVESTIGATION WING IN THE POST SEAR CH ENQUIRY U/S 131 OF THE ACT. EVEN OTHERWISE, ALL THESE STATEMENTS ARE O NLY REGARDING ONE TRANSACTION OF LOAN THAT CANNOT BE APPLIED TO THE E NTIRE TRANSACTIONS OF LOAN TAKEN FROM 12 PARTIES. THEREFORE, EXCEPT THE STATEM ENT OF THE ASSESSEE TO QUESTION NO. 77, WHICH WAS SUBSEQUENTLY CLARIFIED I N QUESTION NO. 12, THERE WAS NOTHING IN THE SHAPE OF ANY MATERIAL OR D OCUMENT MUCH LESS INCRIMINATING MATERIAL WITH THE ASSESSING OFFICER T O MAKE THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. IF THE STATEMENT OF THE ASSESSEE IS READ IN TOTO THEN THERE WILL BE NO ADMISSION REGARDING A NY OF THE LOAN TRANSACTIONS BEING AN ACCOMMODATION ENTRY. THEREFOR E, THE QUESTION ARISES WHETHER IN ABSENCE OF ANY INCRIMINATING MATERIAL, T HE ASSESSING OFFICER CAN MAKE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESS EE WHEN THE ASSESSMENT WAS NOT ABATED DUE TO THE SEARCH AND SEI ZURE ACTION. THE 15 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KAB UL CHAWLA (SUPRA) HAS CONSIDERED AND OBSERVED IN PARA 37 AND 38 AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, REA D WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONE D DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERS ON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II . ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III . THE AO WILL EXERCISE NORM AL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX Y EARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX'. IV . ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MA DE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH , OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE R ELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITR ARY OR MADE WITHOUT ANY RELEVAN CE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V . IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR R EASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMP LETED ASSESSMENT PROCEEDINGS. VI . INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECORD OF THE AO. VII . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITIO N OF DOCUMENTS OR UNDISCLOSED INC OME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE O F ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005-06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED . SINCE NO INCRIMINATING MATERIAL WAS 16 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAV E BEEN MADE TO THE INCOME ALREADY ASSESSED. THUS, THE HON'BLE HIGH COURT HAS RULED THAT THE ASS ESSING OFFICER WHILE MAKING THE ASSESSMENT U/S 153A OF THE ACT CAN MAKE THE ADDITION ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS, WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF OR IGINAL ASSESSMENT. IN THE CASE IN HAND, ALL THE TRANSACTIONS WERE DULY RE CORDED IN THE BOOKS OF ACCOUNT. EVEN THE LOANS WERE ALREADY PAID DURING TH E F.Y. 2011-12 AND THEREFORE, THESE TRANSACTIONS WERE DISCLOSED AND KN OWN IN THE COURSE OF ORIGINAL ASSESSMENT/RETURN OF INCOME. HENCE IN ABSE NCE OF ANY INCRIMINATING MATERIAL, THE ASSESSING OFFICER CANNO T MAKE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. IN THE SUBSEQUENT DECISION, THE HONBLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. MEETA GU TGUTIA (SUPRA) HAS HELD IN PARA 57 TO 72 AS UNDER: 57. THE QUESTION WHETHER UNEARTHING OF INCRIMINATING M ATERIAL RELATING TO ANY ONE OF THE AYS COULD JUSTIFY THE RE-OPENING OF THE ASSESSMENT FOR ALL THE EARLIER AYS WAS CONSIDERED BOTH IN ANIL KUMAR BHATIA ( SUPRA ) AND CHETAN DAS LACHMAN DAS ( SUPRA ). INCIDENTALLY, BOTH THESE DECISIONS WERE DISCUSSED THREADBARE IN T HE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ). AS FAR AS ANIL KUMAR BHATIA ( SUPRA ) WAS CONCERNED, THE COURT IN PARAGRAPH 24 OF THAT DECISION NOTED THAT 'WE ARE NO T CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE THEREFORE EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN BE INVOKED EVEN UNDER SUCH SITUATION'. THAT QUESTION WAS, THEREFORE , LEFT OPEN. AS FAR AS CHETAN DAS LACHMAN DAS ( SUPRA ) IS CONCERNED, IN PARA 11 OF THE DECISION IT WAS O BSERVED: '11. SECTION 153A (1) (B) PROVIDES FOR THE ASSESSME NT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PREC EDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH T OOK PLACE. TO REPEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WH ICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT T HE ASSESSMENT UNDER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED 17 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UN DER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' 58. IN KABUL CHAWLA ( SUPRA ), THE COURT DISCUSSED THE DECISION IN FILATEX INDIA LTD. ( SUPRA ) AS WELL AS THE ABOVE TWO DECISIONS AND OBSERVED A S UNDER: '31. WHAT DISTINGUISHES THE DECISIONS BOTH IN CIT V. CHETAN DAS LACHMAN DAS ( SUPRA ), AND FILATEX INDIA LTD. V. CIT-IV ( SUPRA ) IN THEIR APPLICATION TO THE PRESENT CASE IS THAT IN BOTH THE SAID CASES THERE W AS SOME MATERIAL UNEARTHED DURING THE SEARCH, WHEREAS IN THE PRESENT CASE THERE ADMIT TEDLY WAS NONE. SECONDLY, IT IS PLAIN FROM A CAREFUL READING OF THE SAID TWO . DECI SIONS THAT THEY DO NOT HOLD THAT ADDITIONS CAN BE VALIDLY MADE TO INCOME FORMING THE SUBJECT MATTER OF COMPLETED ASSESSMENTS PRIOR TO THE SEARCH EVEN IF NO INCRIMIN ATING MATERIAL WHATSOEVER WAS UNEARTHED DURING THE SEARCH. 32. RECENTLY BY ITS ORDER DATED 6TH JULY 2015 IN IT A NO. 369 OF 2015 ( PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. ), THIS COURT DECLINED TO FRAME A QUESTION OF LAW IN A CASE WHERE, IN THE ABS ENCE OF ANY INCRIMINATING MATERIAL BEING FOUND DURING THE SEARCH UNDER SECTION 132 OF THE ACT, THE REVENUE SOUGHT TO JUSTIFY INITIATION OF PROCEEDINGS UNDER SECTION 153 A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOGUS SHARE CAPITAL GAIN. THE ORDER OF THE CIT (A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NO T INTERFERED WITH.' 59. IN KABUL CHAWLA ( SUPRA ), THE COURT REFERRED TO THE DECISION OF THE RAJAST HAN HIGH COURT IN JAI STEEL (INDIA) V. ASSTT. CIT [2013] 36 TAXMANN.COM 523/219 TAXMAN 223 . THE SAID PART OF THE DECISION IN KABUL CHAWLA ( SUPRA ) IN PARAS 33 AND 34 READS AS UNDER: '33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT ( SUPRA ) INVOLVED A CASE WHERE CERTAIN BOOKS OF ACCOUNTS A ND OTHER DOCUMENTS THAT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COURSE OF SEARCH. IT WAS HELD WHERE UN DISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEA RCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE COURT THEN EXPLAINED AS UNDER: '22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: ( A ) THE ASSESSMENTS OR REASSESSMENTS, WHICH STA ND ABATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIG INAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; ( B ) REGARDING OTHER CASES, THE ADDITION TO THE INCOME T HAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMI NATING MATERIAL; AND ( C ) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE.' 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FRE E TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHILE MAKING ASSESSMENT UNDE R SECTION 153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT ON THE GROUND TH AT IT WAS 'NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION' WHICH WAS IN THE CONT EXT OF SEARCH AND/OR REQUISITION. 18 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS THE COURT ALSO EXPLAINED THE PURPORT OF THE WORDS ' ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 1 53A OF THE ACT AS UNDER: '26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN R ESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECT ION. THE WORDS 'ASSESS' OR 'REASSESS'- HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTIO N AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIB LE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDIN GS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT A BATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING O F REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS.'' 60. IN KABUL CHAWLA ( SUPRA ), THE COURT ALSO TOOK NOTE OF THE DECISION OF THE BOMBAY HIGH COURT IN CIT V. CONTINENTAL WAREHOUSING CORPN (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 ITR 645 (BOM.) WHICH ACCEPTED THE PLEA THAT IF NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF AN ISSUE, THEN NO ADDITIONS IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ASSESSMENT UNDER SECTION 153A AND 153C OF THE ACT. THE LEGAL POSITION WAS THEREAF TER SUMMARIZED IN KABUL CHAWLA ( SUPRA ) AS UNDER: '37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREM ENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A (1) W ILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEA RCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE S EARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE. AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEAR S. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH , OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABL E WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITR ARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOU SLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 19 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDINGS (I.E. THOSE PENDING O N THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMP LETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSM ENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BAS IS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATER IAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITIO N OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEAR CH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE O F ORIGINAL ASSESSMENT.' 61. IT APPEARS THAT A NUMBER OF HIGH COURTS HAVE CONCU RRED WITH THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ) BEGINNING WITH THE GUJARAT HIGH COURT IN SAUMYA CONSTRUCTION (P.) LTD. ( SUPRA ). THERE, A SEARCH AND SEIZURE OPERATION WAS CARRIE D OUT ON 7TH OCTOBER, 2009 AND AN ASSESSMENT CAME TO BE FRAM ED 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 OF RS. 3.44 CRORES. THE ITA T 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 DECISION IN KABUL CHAWLA ( SUPRA ), OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) ( SUPRA ) AND ONE EARLIER DECISION OF THE GUJARAT HIGH COUR T 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 REQUISITI ON IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SE CTION 153A OF THE ACT TO THE PERSON, REQUIRING HIM TO FURNISH THE RETURN OF INCO ME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATEL Y PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND ASSESS OR REASSESS THE SAME. SINCE THE ASS ESSMENT 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 UNDISCLOSED INCOME WHICH IS FOUND DURING THE COURSE OF OR PURSUANT TO THE SEARCH OR REQUISITION. HOWEVER, INSTEAD OF THE EARLIER REGIME OF BLOCK ASS ESSMENT WHEREBY, IT WAS ONLY THE UNDISCLOSED INCOME OF THE BLOCK PERIOD THAT WAS ASS ESSED, SECTION 153A OF THE ACT SEEKS TO ASSESS THE TOTAL INCOME FOR THE ASSESSMENT YEAR, WHICH IS CLEAR FROM THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING O FFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FAL LING WITHIN SUCH SIX ASSESSMENT YEARS. THE SECOND PROVISO MAKES THE INTENTION OF TH E LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSMENT OR REASSESSMENT, IF ANY, R ELATING TO THE SIX ASSESSMENT YEARS REFERRED TO IN THE SUB-SECTION PENDING ON THE DATE OF INITIATION OF SEARCH UNDER 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 ANY OTHER LEGAL PROVISION, THEN THE ASSESSMENT OR REASS ESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAD ABATED UNDER THE SECOND PROVISO WOUL D STAND REVIVED. THE PROVISO THERETO SAYS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT IF SUCH ORDER OF ANNULMENT IS 20 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR RE ASSESSMENT 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. SIMILARLY, 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 A PPEAL OR ANY OTHER PROCEEDING. 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN C ASE 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 SECTION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLEAR, THEN THE HEADING USED IN THE SECTION STRENGT HENS THAT MEANING. FROM THE HEADING OF SECTION 153. THE INTENTION OF THE LEGISL ATURE 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 REQUISIT ION, IT GOES WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR RE QUISITION, IN OTHER WORDS, THE ASSESSMENT SHOULD CONNECTED WITH SOMETHING ROUND DU RING THE SEARCH OR REQUISITION VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLO SED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION (1) OF SECTION 153A O F THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISITION, THE ASSESSING OFF ICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH RETURNS OF INCOME FOR THE SI X YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEA RCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION' OR DISALLOWANCE CAN BE MADE ONL Y 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 (INDIA) V. ASST. CIT ( SUPRA ), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERAT ED, IN CASE WHERE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFI CER CAN PASS ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INC OME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FUR NISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SE ARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT UNDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AND AMBIT OF THE ASSESSMENT WOULD IN CLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 1 47 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. ** ** ** 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING THAT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS FOUND, IT WOULD BE PERMIS SIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN RESPECT OF AN THE SIX ASSESSMENT YE ARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INAS MUCH AS. THE ASSESSMENT IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE A ND DISTINCT ASSESSMENT. UNDER SECTION 153A OF THE ACT, ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR REQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLO SED DURING THE SEARCH OR REQUISITION. IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINA TING MATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASS ESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSES SMENT 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 THE PRESENT CASE STANDS CONCLUDED BY TH E DECISION OF THIS COURT IN THE 21 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS CASE OF CIT V. JAYABEN RATILAL SORATHIA ( 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 MATERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSMENT YEAR.' 62. SUBSEQUENTLY, IN DEVANGI ALIAS RUPA ( SUPRA ), ANOTHER BENCH OF THE GUJARAT HIGH COURT REITERATED THE ABOVE LEGAL POSITION FOLLOWING ITS EARLIER DECISION IN SAUMYA CONSTRUCTION (P.) LTD. ( SUPRA ) AND OF THIS COURT IN KABUL CHAWLA ( SUPRA ). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN IBC KNOWLEDGE PARK (P.) LTD. ( SUPRA ) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ) AND HELD THAT THERE HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO B E MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CALCU TTA HIGH COURT IN SALASAR STOCK BROKING LTD. ( SUPRA ), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA ( SUPRA ). IN GURINDER SINGH BAWA ( SUPRA ), THE BOMBAY HIGH COURT HELD THAT: '6. . . . . . ONCE AN ASSESSMENT HAS ATTAINED FINAL ITY FOR A PARTICULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN P ROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMIN ATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTIO N 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS.' 63. EVEN THIS COURT HAS IN MAHESH KUMAR GUPTA ( SUPRA ) AND RAM AVTAR VERMA ( SUPRA ) FOLLOWED THE DECISION IN KABUL CHAWLA ( SUPRA ). THE DECISION OF THIS COURT IN 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 T HE REVENUE'S SLP ON 7TH DECEMBER, 2015. THE DECISION IN DAYAWANTI GUPTA 64. THAT BRINGS US TO THE DECISION IN SMT. DAYAWANTI GUPTA ( SUPRA ). AS RIGHTLY POINTED OUT BY MR. KAUSHIK, LEARNED COUNSEL APPEARING FOR T HE RESPONDENT, THAT THERE ARE SEVERAL DISTINGUISHING FEATURES IN THAT CASE WHICH MAKES IT S RATIO INAPPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THE FIRST PLACE, THE ASSESSEES THE RE WERE ENGAGED IN THE BUSINESS OF PAN MASALA AND GUTKHA ETC. THE ANSWERS GIVEN TO QUESTIO NS POSED TO THE ASSESSEE IN THE COURSE OF SEARCH AND SURVEY PROCEEDINGS IN THAT CAS E BRING OUT THE POINTS OF DISTINCTION. IN THE FIRST PLACE, IT WAS STATED THAT THE STATEMENT R ECORDED WAS UNDER SECTION 132(4) AND NOT UNDER SECTION 133A. IT WAS A STATEMENT BY THE ASSES SEE HIMSELF. IN RESPONSE TO QUESTION NO. 7 WHETHER ALL THE PURCHASES MADE BY THE FAMILY FIRMS, WERE ENTERED IN THE REGULAR BOOKS OF ACCOUNT, THE ANSWER WAS: 'WE AND OUR FAMILY FIRMS NAMELY M/S. ASSAM SUPARI T RADERS AND M/S. BALAJI PERFUMES GENERALLY TRY TO RECORD THE TRANSACTIONS M ADE IN RESPECT OF PURCHASE, MANUFACTURING AND SALES IN OUR REGULAR BOOKS OF ACC OUNTS BUT IT IS ALSO FACT THAT SOME TIME DUE TO SOME FACTORS LIKE INABILITY OF ACCOUNTA NT, OUR BUSY SCHEDULE AND SOME FAMILY PROBLEMS, VARIOUS PURCHASES AND SALES OF SUP ARI, GUTKA AND OTHER ITEMS DEALT BY OUR FIRMS IS NOT ENTERED AND SHOWN IN THE REGULA R BOOKS OF ACCOUNTS MAINTAINED BY OUR FIRMS.' 65. THEREFORE, THERE WAS A CLEAR ADMISSION BY THE ASSE SSEES IN SMT. DAYAWANTI GUPTA ( SUPRA ) THERE THAT THEY WERE NOT MAINTAINING REGULAR BOOK S OF ACCOUNTS AND THE TRANSACTIONS WERE NOT RECORDED THEREIN. 22 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 66. FURTHER, IN ANSWER TO QUESTION NO. 11, THE ASSESSE E IN SMT. DAYAWANTI GUPTA ( SUPRA ) WAS CONFRONTED WITH CERTAIN DOCUMENTS SEIZED DURING THE SEARCH. THE ANSWER WAS CATEGORICAL AND READS THUS: 'ANS:- I HEREBY ADMIT THAT THESE PAPERS ALSO CONTEN D DETAILS OF VARIOUS TRANSACTIONS INCLUDE PURCHASE/SALES/MANUFACTURING TRADING OF GUT KHA, SUPARI MADE IN CASH OUTSIDE BOOKS OF ACCOUNTS AND THESE ARE ACTUALLY UN ACCOUNTED TRANSACTIONS MADE BY OUR TWO FIRMS NAMELY M/S. ASOM TRADING AND M/S. BAL AJI PERFUMES.' 67. BY CONTRAST, THERE IS NO SUCH STATEMENT IN THE PRE SENT CASE WHICH CAN BE SAID TO CONSTITUTE AN ADMISSION BY THE ASSESSEE OF A FAILUR E TO RECORD ANY TRANSACTION IN THE ACCOUNTS OF THE ASSESSEE FOR THE AYS IN QUESTION. O N THE CONTRARY, THE ASSESSEE HEREIN STATED THAT, HE IS REGULARLY MAINTAINING THE BOOKS OF ACCOUNTS. THE DISCLOSURE MADE IN THE SUM OF RS. 1.10 CRORES WAS ONLY FOR THE YEAR OF SEA RCH AND NOT FOR THE EARLIER YEARS. AS ALREADY NOTICED, THE BOOKS OF ACCOUNTS MAINTAINED B Y THE ASSESSEE IN THE PRESENT CASE HAVE BEEN ACCEPTED BY THE AO. IN RESPONSE TO QUESTI ON NO. 16 POSED TO MR. PAWAN GADIA, HE STATED THAT THERE WAS NO POSSIBILITY OF M ANIPULATION OF THE ACCOUNTS. IN SMT. DAYAWANTI GUPTA ( SUPRA ), BY CONTRAST, THERE WAS A CHART PREPARED CONFIRMI NG THAT THERE HAD BEEN A YEAR-WISE NON-RECORDING OF TRANSACTIONS. IN SMT. DAYAWANTI GUPTA ( SUPRA ), ON THE BASIS OF MATERIAL RECOVERED DURING SEARCH, THE ADDITIONS WHICH WERE MADE FOR ALL THE YEARS WHEREAS ADDITIONS IN THE PRESENT CASE WERE MA DE BY THE AO ONLY FOR AY 2004-05 AND NOT ANY OF THE OTHER YEARS. EVEN THE ADDITIONS MADE FOR AYS 2004-05 WERE SUBSEQUENTLY DELETED BY THE CIT (A), WHICH ORDER WA S AFFIRMED BY THE ITAT. EVEN THE REVENUE HAS CHALLENGED ONLY TWO OF SUCH DELETIONS I N ITA NO. 306/2017. 68. IN PARA 23 OF THE DECISION IN SMT. DAYAWANTI GUPTA ( SUPRA ), IT WAS OBSERVED AS UNDER: '23. THIS COURT IS OF OPINION THAT THE ITAT'S FINDI NGS DO NOT REVEAL ANY FUNDAMENTAL ERROR, CALLING FOR CORRECTION. THE INFERENCES DRAWN IN RESPECT OF UNDECLARED INCOME WERE PREMISED ON THE MATERIALS FOUND AS WELL AS THE STATEMENTS RECORDED BY THE ASSESSEES. THESE ADDITIONS THEREFORE WERE NOT BASEL ESS. GIVEN THAT THE ASSESSING AUTHORITIES IN SUCH CASES HAVE TO DRAW INFERENCES, BECAUSE OF THE NATURE OF THE MATERIALS - SINCE THEY COULD BE SCANTY (AS ONE HABI TUALLY CONCEALING INCOME OR INDULGING IN CLANDESTINE OPERATIONS CAN HARDLY BE E XPECTED TO MAINTAIN METICULOUS BOOKS OR RECORDS FOR LONG AND IN ALL PROBABILITY BE ANXIOUS TO DO AWAY WITH SUCH EVIDENCE AT THE SHORTEST POSSIBILITY) THE ELEMENT O F GUESS WORK IS TO HAVE SOME REASONABLE NEXUS WITH THE STATEMENTS RECORDED AND D OCUMENTS SEIZED. IN TILLS CASE, THE DIFFERENCES OF OPINION BETWEEN THE CIT (A) ON T HE ONE HAND AND THE AO AND ITAT ON THE OTHER CANNOT BE THE SOLE BASIS FOR DISA GREEING WITH WHAT IS ESSENTIALLY A FACTUAL SURMISE THAT IS LOGICAL AND PLAUSIBLE. THES E FINDINGS DO NOT CALL FOR INTERFERENCE. THE SECOND QUESTION OF LAW IS ANSWERE D AGAIN IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE.' 69. WHAT WEIGHED WITH THE COURT IN THE ABOVE DECISION WAS THE 'HABITUAL CONCEALING OF INCOME AND INDULGING IN CLANDESTINE OPERATIONS' AND THAT A PERSON INDULGING IN SUCH ACTIVITIES 'CAN HARDLY BE ACCEPTED TO MAINTAIN METI CULOUS BOOKS OR RECORDS FOR LONG.' THESE FACTORS ARE ABSENT IN THE PRESENT CASE. THERE WAS NO JUSTIFICATION AT ALL FOR THE AO TO PROCEED ON SURMISES AND ESTIMATES WITHOUT THERE BEI NG ANY INCRIMINATING MATERIAL QUA THE AY FOR WHICH HE SOUGHT TO MAKE ADDITIONS OF FRANCHI SEE COMMISSION. 70. THE ABOVE DISTINGUISHING FACTORS IN SMT. DAYAWANTI GUPTA ( SUPRA ), THEREFORE, DO NOT DETRACT FROM THE SETTLED LEGAL POSITION IN KABUL CHAWLA ( SUPRA ) WHICH HAS BEEN FOLLOWED NOT ONLY BY THIS COURT IN ITS SUBSEQUENT DECISIONS BUT ALSO BY SEVERAL OTHER HIGH COURTS. 23 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 71. FOR ALL OF THE AFOREMENTIONED REASONS, THE COURT I S OF THE VIEW THAT THE ITAT WAS JUSTIFIED IN HOLDING THAT THE INVOCATION OF SECTION 153A BY THE REVENUE FOR THE AYS 2000-01 TO 2003-04 WAS WITHOUT ANY LEGAL BASIS AS T HERE WAS NO INCRIMINATING MATERIAL QUA EACH OF THOSE AYS. CONCLUSION 72. TO CONCLUDE: ( I ) QUESTION ( I) IS ANSWERED IN THE NEGATIVE I.E., IN FAVOUR OF T HE ASSESSEE AND AGAINST THE REVENUE. IT IS HELD THAT IN THE FACTS AND CIRCU MSTANCES, THE REVENUE WAS NOT JUSTIFIED IN INVOKING SECTION 153A OF THE ACT AGAIN ST THE ASSESSEE IN RELATION TO AYS 2000-01 TO AYS 2003-04? ( II ) QUESTION (II) IS ANSWERED IN THE AFFIRMATIVE I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IT IS HELD THAT WITH REFERENCE TO AY 2004- 05, THE ITAT WAS CORRECT IN CONFIRMING THE ORDERS OF THE CIT (A) TO THE EXTENT IT DELETED THE ADDITIONS MADE BY THE AO TO THE TAXABLE INCOME OF T HE ASSESSEE OF FRANCHISE COMMISSION IN THE SUM OF RS. 88 LAKHS AND RENT PAYM ENT FOR THE SUM OF RS. 13.79 LAKHS? THE SAID DECISION OF HON'BLE HIGH COURT WAS CHALLEN GED BY THE REVENUE BEFORE THE HON'BLE SUPREME COURT, HOWEVER, THE SLP OF THE REVENUE WAS DISMISSED VIDE ORDER DATED 02/7/2018 REPORTED SUPRA . THUS, THE HON'BLE HIGH COURT HAS REITERATED ITS VIEW AS TAKEN IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) AND SPECIFICALLY HELD THAT ONCE THE ASSESSMENT HAS ATTAINED THE FINALITY I.E. IS NOT PENDING THEN THE SAME CANN OT BE SUBJECT TO TAX IN PROCEEDINGS U/S 153A OF THE ACT EXCEPT SOME INCRIMI NATING MATERIAL ARE GATHERED IN COURSE OF SEARCH OR DURING THE PROCEEDI NGS U/S 153A OF THE ACT. THE HONBLE JURISDICTIONAL HIGH COURT IN THE C ASE OF JAI STEEL (INDIA) VS ACIT (SUPRA) HAS ALSO CONSIDERED THIS ISSUE IN PARA 22 TO 26 AS UNDER: 22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN REA DING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: ( A ) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATE D IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIG INA L JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; 24 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ( B ) REGARDING OTHER CASES, THE ADDITION TO THE INCOME T HAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMI NATING MATERIAL AND ( C ) IN ABSENCE OF ANY INCRIMINATING M ATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST T IME UNDER SECTION 153A OF THE ACT IS NOT COMPLETED, THE CASE IN HAND, HAS TO BE CONSIDER ED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRI MINATING IS FOUND. IN SUCH A CASE THOUGH SECTION 153A OF THE ACT WOULD BE TRIGGERED AND ASSE SSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRED TO BE DO NE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. 23. THE RELIANCE PLACED BY THE COUNSEL FOR THE APPELLA NT ON THE CASE OF ANIL KUMAR BHATIA ( SUPRA ) ALSO DOES NOT HELP THE CASE OF THE ASSESSEE. THE RELEVANT EXTRACT OF THE SAID JUDGMENT READS AS UNDER: '19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HA VE ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT Y EARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION I S THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESS MENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE A SSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE P OWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUEST ION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT OR DER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND T HE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT T O BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIO USLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TA KING NOTE TO THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEE N REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTION 153A O PENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, A S PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLA USE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF A N ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE 25 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REA SSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN T HE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SI X ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND P ROVISO TO SUB-SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABAT E'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE A SSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CONSIDERATION . THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN OR DER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECON D PROVISO OF SUB-SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UN DISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE M AKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WH ICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASE WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE B EEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY AB ATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OF FICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSE D AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABA TEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMEN T OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED OR THE REQUISITION WAS MADE.' (EMPHASIS SUPPLIED) 24. THE SAID JUDGMENT ALSO IN NO UNCERTAIN TERMS HOLDS THAT THE REASSESSMENT OF THE TOTAL INCOME OF THE COMPLETED ASSESSMENTS HAVE TO BE MADE TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH AND THE INCOME THAT ESCAPED ASSESSMENTS ARE REQUIRED TO BE CLUBBED TOGETHER WITH THE TOTAL INCO ME DETERMINED IN THE ORIGINAL ASSESSMENT AND ASSESSED AS THE TOTAL INCOME. THE OB SERVATIONS MADE IN THE JUDGMENT CONTRASTING THE PROVISIONS OF DETERMINATION OF UNDI SCLOSED INCOME UNDER CHAPTER XIVB WITH DETERMINATION OF TOTAL INCOME UNDER SECTIONS 1 53A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH D EALS WITH THE PENDING ASSESSMENT/REASSESSMENT PROCEEDINGS. THE FURTHER OB SERVATIONS MADE IN THE CONTEXT OF DE 26 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS NOVO ASSESSMENT PROCEEDINGS ALSO HAVE TO BE READ IN CONTEXT THAT IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAVE TO BE UNDERTAKEN. 25. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTER PRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SECTIONS 13 9 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING AS SESSMENT) AND 263 (REVISION OF ORDERS) OF THE ACT. 26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN R ESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'AS SESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONS TRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'A SSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR C OMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON TH E DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSAR ILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUI SITION OF DOCUMENTS. THUS, THE HON'BLE HIGH COURT HAS HELD THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMIN ATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUM ENTS. THE LD. CIT(A) HAS DECIDED THIS ISSUE IN PARA 7 TO 7.7 AS UNDER: 7. I HAVE PERUSED THE ORDER OF THE AO AND SUBMISSI ONS MADE IN THIS REGARD. I HAVE ALSO GONE THROUGH THE VARIOUS CASE LAWS CITED BY THE AR. FOR THE SAKE OF CONVENIENCE THE LEGAL GROUND IS ADJUDICATED 1 ST AS IT GOES TO THE ROOT OF THE MATTER. 7.2 IN SUPPORT OF THE ADDITIONAL GROUND TAKEN/ CONT ENTION RAISED DETAILED WRITTEN SUBMISSION ARE MADE WHEREIN THE APPELLANT H AS CHALLENGED THE LEGAL VALIDITY OF THE ADDITION MADE IN THE ORDER FR AMED U/S 143(3)/153A. IT IS SUBMITTED THAT SUCH ADDITIONS CANNOT BE MADE AS THEY ARE NOT RELATABLE TO ANY INCRIMINATING SEIZED MATERIAL FOUND DURING T HE COURSE OF SEARCH. THE APPELLANT HAS CITED FOLLOWING JUDGMENTS IN SUPP ORT OF THE CONTENTION TAKEN: 1) JAY STEEL LIMITED VS. ACIT (88 DTR 1) [RAJ HC] 2) KABUL CHAWLA VS. ACIT 380 ITR 573 (DEL HC) 27 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 3) CONTINENTAL WAREHOUSING CORPORATION 374 ITR 645 ETC. 7.3 I HAVE PERUSED THE ORDER OF THE AO AND SUBMISSI ONS MADE IN THIS REGARD. PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3)/153A SHOWS THAT ALL THE ADDITIONS MADE BY THE AO ARE NOT RELATABLE TO ANY S EIZED MATERIAL. I ALSO FIND THAT FOR THE A.YR THE ASSESSMENT STOOD COMPLET ED ON THE DATE OF SEARCH. 7.4 THE ISSUE OF ADDITIONS MADE BY THE AO IN THE AS SESSMENT U/S 143(3)/153A WITHOUT ANY REFERENCE TO INCRIMINATING SEIZED MATER IAL WAS CONSIDERED BY THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL LIMITED VS. ACIT (88 DTR 1). THE HONBLE COURT WAS OF THE VIEW IN CASE OF COMPLE TED ASSESSMENTS NO ADDITION CAN BE MADE IF NO INCRIMINA TING SEIZED MATERIAL IS FOUND DURING THE COURSE OF SEARCH. THE RELEVANT OBSERVATION OF THE JUDGMENT IS REPRODUCED BELOW: 'IN THE FIRM OPINION OF THIS COURT FROM A PLAIN REA DING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHIC H IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS O RIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INC OME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND JUST IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR 13 D.B. INCOME TAX APPEAL NO.53/2011 JAI STEEL (INDIA), JODHPUR VS. ASSISTANT COMMISSIONER OF INCOME TAX, JODHPUR (ALONG WITH OTHER 16 SIMILAR MATTERS) REASS ESSMENT CAN BE MADE.' 7.5 SIMILAR VIEW POINT WAS EXPRESSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA VS. ACIT 380 ITR 573 (DEL HC). THE RELEVANT OBSERVATION OF HONBLE COURT COULD BE SEEN IN PARA 37 & 38 OF ORDER, SAME IS REPRODUCED BELOW: PARA 37. ON A CONSPECTUS OF SECTION 153A (1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDI NG THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. 28 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE TOTAL INCOME OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A O WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSES SMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEI ZED MATERIAL. OBVIOUSLY ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY O N THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABAT ED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY F OR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIA L EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005 -06 AND 2006-07.0N THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD CO MPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 7.6 THE ISSUE OF ADDITIONS MADE BY THE AO WHILE FRA MING THE ASSESSMENT U/S 143(3)/153A, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF 29 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS SEARCH WAS CONSIDERED BY HONBLE GUJARAT HIGH COURT IN THE CASE OF SOUMYA CONSTRUCTION PL VS CIT 387 ITR 529. IN ITS O RDER DATED 14/03/2016 HONBLE COURT HAS CATEGORICALLY STATED THAT, IN CAS ES OF COMPLETED ASSESSMENT, IF NO INCRIMINATING MATERIAL IS FOUND T HEN NO ADDITIONS CAN BE MADE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. THE RELEVANT PARA NO. 18 8S 19 OF THE COURT ORDER CAN BE REFERRED TO. SIMILAR VIEW OF ALSO TAKEN IN THE FOLLOWING JUDGME NTS, INCLUDING BY HON'BLE JAIPUR ITAT HON'BLE ITAT JAIPUR IN MANY CAS ES: A. CONTINENTAL WAREHOUSING CORPORATION 374 ITR 645 B. PCIT VS. MEETA GUTGUTIA 152 DTR 153 C. VIJAY KUMAR D AGARWAL V/S DCIT IN IT(SS)A NOS. 153,154,155 & 156/AHD/2012 D. RATAN KUMAR SHARMA VS. DCIT ITA 797 & 798 /JAIP UR/2014 E. VIKRAM GOYAL VS. DCIT ITA 174/JAIPUR/2017 ETC F. JADAU JEWELLERS & MANUFACTURER PL VS ACIT (686/ JAIPUR/2014) G. PRATEEK KOTHARI VS. ACIT (312/JAIPUR/2015. 7.7 CONSIDERING THE ABOVE I AM OF THE VIEW THAT AS THE ADDITIONS MADE BY AO ARE WITHOUT ANY REFERENCE TO THE SEIZED MATERIAL, T HEY ARE NOT LEGALLY TENABLE. THE SAME ARE THEREFORE DIRECTED TO BE DELE TED. THE LEGAL GROUND TAKEN BY THE APPELLANT IS THUS ALLOWED. THE APPELLA NT SUCCEEDS ON LEGAL GROUND. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AS WEL L AS IN THE LIGHT OF BINDING PRECEDENTS AS DISCUSSED IN THE FORGOING PAR AGRAPHS, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) QUA THIS ISSUE. 8.1 ON MERITS, THE STAND OF THE REVENUE IS THAT THE STATEMENT MADE ON OATH U/S 132(4) OF THE ACT IS AN ADMISSIBLE EVIDENC E AND THEREFORE, ONCE THE ASSESSEE HAS ADMITTED THE LOAN AS AN ACCOMMODAT ION ENTRY AND IN RETURN THE ASSESSEE RECEIVED THE CASH THEN THE ASSE SSING OFFICER JUSTIFIED 30 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS IN MAKING THE ADDITION U/S 68 OF THE ACT. HOWEVER, WE FIND THAT THE STATEMENT WHICH IS RELIED UPON BY THE ASSESSING OFF ICER IS ONLY ONE PART AND THAT TOO A SELECTED PART WITHOUT CONSIDERING TH E PRIOR STATEMENT AND SUBSEQUENT STATEMENT RECORDED BY THE INVESTIGATION WING. THEREFORE, IF WE CONSIDER THE STATEMENT OF THE ASSESSEE IN THE CO NTEXT OF THE QUESTIONS PUT AND IF ALL THE RELEVANT STATEMENT IS READ TOGET HER THEN IT WOULD NOT AMOUNT TO ADMISSION OF ANY BOGUS TRANSACTION. FURTH ER THE TRANSACTIONS WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AT THE T IME OF TAKING THE LOANS IN THE F.Y. 2009-10 AND AGAIN AT THE TIME OF REPAYM ENT OF THESE LOANS IN THE F.Y. 2011-12, WHICH WAS NOT DISTURBED BY THE AS SESSING OFFICER. EVEN THE INTEREST PAID BY THE ASSESSEE AFTER DEDUCTING T DS WAS NOT DISTURBED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSE D U/S 153A READ WITH SECTION 143(3) OF THE ACT FOR THE A.Y. 2011-12. THE COPY OF THE SAID ORDER WAS FILED BY THE LD AR OF THE ASSESSEE, WHICH REVEA LS THAT THE ASSESSING OFFICER THOUGH MADE DISALLOWANCES OF CERTAIN EXPEN DITURE BUT HAS NOT MADE ANY DISALLOWANCE OF THE INTEREST PAID BY THE A SSESSEE IN RESPECT OF THE LOANS IN QUESTION. WE FURTHER NOTE THAT THE ASS ESSEE HAS PRODUCED DOCUMENTARY EVIDENCE IN SUPPORT OF CLAIM AND TO DIS CHARGE THE ONUS OF PROVING THE IDENTITY AND CREDITWORTHINESS OF THE CR EDITOR AS WELL AS THE GENUINENESS OF THE TRANSACTION. THE DOCUMENTS PRODU CED BY THE ASSESSEE IN RESPECT OF THESE CREDITORS ARE AS UNDER: 31 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS NAME OF PARTY FROM WHOM LOAN TAKEN PARTICULARS OF DOCUMENTS SUBMITTED INTERLINK SAVING & FINANCE PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. YATAN TRADERS PVT. LTD CONFIRMATION OF PARTY OF LOAN TA KEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. ZENIT H TRADECOM PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. REGENCY DEVCON PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. VICTOR PROJECTS PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. 32 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS RAMESHWAR FINVEST PVT. LTD. A) PERTAINING TO AY 2010 - 11: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. B) PERTAINING TO AY 2011-12: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2011 . C) PERTAINING TO AY 2012-13: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2012-13 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2012 . 33 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS TARA VINIMAY PVT. LTD A) PERTAINING TO AY 2010 - 11: - CONFIRMATION OF PARTY OF LOAN TAKEN . THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. B) PERTAINING TO AY 2011-12: - CONFIRMATION OF PARTY OF LOAN TAKEN . THE COPY OF ITR FOR AY 2011-12 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2011 . C) PERTAINING TO AY 2012-13: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2012-13 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2012 . COPY OF BANK STATEMENT SHOWING THE RELEVANT ENTRY. DIPNARAYAN V YAPAAR PVT. LTD A) PERTAINING TO AY 2010 - 11: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. B) PERTAINING TO AY 2011-12: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF ITR FOR AY 2011-12 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2011 . COPY OF BANK STATEMENT SHOWING THE RELEVANT ENTRY. C) PERTAINING TO AY 2012-13: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2012-13 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2012 . COPY OF BANK STATEMENT SHOWING THE RELEVANT ENTRY. 34 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS SRI RAM TIE UP PVT. LTD A) PERTAINING TO AY 2010 - 11: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. B) PERTAINING TO AY 2011-12: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2011 . PARMATMA DEVELOPERS PVT. LTD A) PERTAINING TO AY 2010 - 11: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF ITR FOR AY 2010-11 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. B) PERTAINING TO AY 2011-12: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2011 . C) PERTAINING TO AY 2012-13: - CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2012-13 . THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2012 . CHITRAVALI VINCOM PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . PAN CARD COPY OF PARTY . THE COPY OF ITR FOR AY 2010-11 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. THE COPY OF DIRECTOR REPORT, AUDIT REPORT, BALANCE SHEET AND PROFIT & LOSS A/C ALONG WITH ALL ANNEXURE OF 31.03.2010 . NAULAKHA TRANSMEDI PVT. LTD CONFIRMATION OF PARTY OF LOAN TAKEN . THE COPY OF ITR FOR AY 2010-11 . COPY OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT MADE TO ASSESSEE. 35 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS IT IS MANIFEST THAT THE ASSESSEE FILED CONFIRMATION OF THE PARTIES, THE PAN CARD, COPY OF ITR, THEIR FINANCIAL STATEMENTS/ACCOU NTS DULY AUDITED ALONGWITH AUDIT REPORT, COPY OF BANK STATEMENTS SHO WING THE PAYMENT AND RECEIPTS OF THE AMOUNTS OF LOAN. ALL THESE DOCUMENT S ARE RELEVANT FOR PROVING THE TRANSACTION OF LOAN IN QUESTIONS AND AS SESSING OFFICER HAS NOT BROUGHT ANY CONTRARY MATERIAL OR RECORD TO DISPROVE OR CONTRADICT THE DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE. THE IDENTITY OF THE LOAN CREDITORS IS EVEN OTHERWISE NOT IN DISPUTE. THE ONL Y GROUND OF THE ASSESSING OFFICER IS THAT THESE ARE ACCOMMODATION E NTRIES, HOWEVER THE ASSESSING OFFICER HAS NOT POINTED OUT ANY DISCREPAN CY IN THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE EITHER IN THE BANK A CCOUNT STATEMENT OR IN THE FINANCIAL STATEMENT OF THE LOAN CREDITORS. ONCE THE LOAN CREDITORS HAVE ACCEPTED THE TRANSACTIONS AND WHICH IS ALSO ESTABLI SHED FROM THE RELEVANT RECORD THEN THE SAID DOCUMENTARY EVIDENCE CANNOT BE REJECTED MERELY ON THE BASIS OF THE STATEMENT RECORDED U/S 132(4) OF T HE ACT, WHICH IS ALSO NOT AN ADMISSION ON THE PART OF THE ASSESSEE. WE F URTHER NOTE THAT THE ASSESSEE ALSO ESTABLISHED THE FACT THAT ALL THE LOA N CREDITORS WERE HAVING SUFFICIENT FUNDS AND RESERVE TO GIVE THE LOAN TO TH E ASSESSEE EVEN THE SHARE CAPITAL AND RESERVE AND SURPLUS OF ALL THE CR EDITORS WERE MUCH MORE THAN THE LOAN AMOUNT AS IS EVIDENT FROM THE BALANCE SHEETS OF THE RELEVANT ASSESSMENT YEAR AS ON 31/3/2010. THUS, ONCE THE ASS ESSEE HAS ESTABLISHED THE TRANSACTION BY PRODUCING THE DOCUME NTARY EVIDENCE THEN 36 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS IN ABSENCE OF ANY CONTRARY MATERIAL OR RECORD, THIS ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. THE LD. CIT(A ) HAS CONSIDERED THIS ISSUE IN PARA 8 AND 9 AS UNDER: 8. I HAVE PURSUED THE ASSESSMENT ORDER AND SUBMISS ION MADE IN THIS REGARD. I HAVE ALSO GONE THROUGH THE VARIOUS JUDGEMENTS CIT ED BY THE LD A/R, IT IS SEEN THAT THE APPELLANT HAS FURNISHED THE FOLLOWING (I) CONFIRMATIONS OF ALL THE PARTIES CONTAINING TH EIR PAN AND ADDRESSES (II) COPY OF ITRS (III) COPY OF AUDIT REPORT, BALA NCE SHEET ETC. OF THE COMPANIES AND (IV) COPY OF BANK STATEMENTS OF THE C OMPANIES SHOWING THE ENTRY OF PAYMENT MADE TO APPELLANT. NO CASH DEPOSIT WAS FOUND DEPOSITED IN BANK A/C OF ANY COMPANY. IT WAS STATED BY LD. AR THAT THE APPELLANT HAS SUBMITTED THESE DOCUM ENTS WHICH PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF SHARE CAPITAL. NONE OF NOTICE SENT U/S 133(6) RECEIVED BACK AS UN -SERVED AND IN SOME OF THE CASES IT WAS ALSO COMPLIED. 8.2 THERE IS NO INCRIMINATING MATERIAL EXCEPT THE A DMISSION IN STATEMENT BY THE PARTNER OF APPELLANT ANY POSITIVE MATERIAL TO C ONTROVERT THE DOCUMENTARY EVIDENCE FURNISHED BY THE APPELLANT. FR OM PERUSAL OF THE RECORDS IT REVEALS THAT ALL THE LOANS WERE RECEIVED THROUGH A/C PAYEE CHEQUE/BANKING CHANNELS. THE APPELLANT HAS PAID THE INTEREST THEREON AFTER DEDUCTING THE DUE TDS THEREON. FURTHER ALL TH E LOANS WERE REPAID PRIOR TO THE SEARCH THROUGH A/C PAYEE CHEQUE/BANKIN G CHANNELS. THE LD. AO HAS NOT POINTED OUT ANY DISCREPANCIES ON THE DOC UMENTS SUBMITTED BY THE APPELLANT. FURTHER THE NOTICES ISSUED U/S 13 3(6) OF INCOME TAX ACT, 1961 ISSUED TO ALL THE COMPANIES WERE SERVED TO THE COMPANIES WHICH SHOWS THAT THE PARTIES WERE EXISTING ON THE GIVEN A DDRESS AND AS IT CONFIRMED THE TRANSACTION, THEREFORE THE TRANSACTIO N CANNOT BE TERMED AS NON-GENUINE. FURTHER SOME OF THE COMPANIES ALSO COM PLIED THE NOTICES ISSUE BY AO. WITH RESPECT TO THE STATEMENT OF THE OF THE PARTNE R SHRI MAHENDRA K AGARWAL THE RECORDS REVEAL THAT SHRI MAHENDRA KUMAR AGARWAL IN HIS 37 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS STATEMENT RECORDED ON DATED 04.04.2013 RECORDED DUR ING THE COURSE OF SEARCH IN ANSWER TO Q. NO. 77 ADMITTED THAT THE TRA NSACTION WITH M/S DIPNARAYAN VYPAR PVT. LTD WAS NOT GENUINE TRANSACTI ON. HOWEVER IN HIS POST SEARCH STATEMENT RECORDED ON 21.06.2013 BEFORE THE ADIT HE RETRACTED FROM THE ADMISSION MADE IN Q. NO. 77 OF STATEMENTS DATED 04.04.2013 AND SAID THAT ADMISSION WAS DUE TO MENTA L TIREDNESS BECAUSE OF REPETITIVE QUESTIONS OF DEPARTMENT OFFICER. FURT HER IN THE ANSWER TO SAME QUESTION OF POST SEARCH STATEMENT HE STATED TH AT HE TOOK LOAN FROM M/S DIPNARAYAN VYPAR PVT. LTD THROUGH CHEQUE AND RE PAID THE SAME THROUGH CHEQUE. HE FURTHER SAID THAT HE DID NOT DO ANY CASH TRANSACTION WITH THIS COMPANY. THE RELEVANT QUESTION AND ITS AN SWER IS REPRODUCED AS UNDER: - IZ IZIZ IZ- -- -12 1212 12 VKIUS IZ'U LA[;K 11 DS TOKC ESA ,USDLJ AS EXIBIT- 5 DS IST LA[;K 37 D TOKC ESA CRK;K FD VKIUS ESLLZ NHIUKJK;.K O;KIKJ I ZK-FY- LS C;KT IJ ISLK FY;K GQVK GSA MLDK , ,E ,DLIKSVZ DH YS[KK IQLR DKSA ESA FNUKAD 01- 04-11 LS FNUKAD 31-03-12 DH VOF/K DK YSTJ GSA ESA V KIDKS RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU VKIDS L'KIFK NTZ C;KU DK IZ'U LA[;K 77 FN[KK JGK GW FTLDS MRRJ ESA VKIUS DGK FKK FD------ - TH GKA ESJS DKS NKS FNU LS ;KN DJRS GQ, ;KN VK J GK GS ,OA FOHKKX LS LG;KSX DH BPNK J[KRS GQ, CRK;K PKGRK GWA FD ESAUS E SLLZ NHIUKJK;.K O;KIKJ IZK-FY- DKS PSD FN;K FKK FTLDK EQ>S BL LKY E SA DS'K IZKIR GKS X;K FTLS ESAUS BL FORR O'KZ DH V?KKSF'KR VK; DS :I ESA FOHKKX DKS LEFIZR DJ FN;KA D`I;K RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU VKIDS L'KIFK NTZ C;KU DK IZ'U LA[;K 77 DS TOKC DKS ,D CKJ IQU% I<+DJ LE> Y SOSA FD VKIUS MIJKSDR IZ'U LA[;K 11 DS TOKC ESA D;K LGH MRRJ FN;K GSA BL LACA/K ESA ESA VKIDK /;KU VK;DJ VF/KFU;E 1961 DS VFHK;KSTU IZK O/KKUKSA DH RJQ VKIDK /;KU VKDF'KZR DJUK PKGRK GW FD XYR C;KUH DH N'KK EAS VKIDS FO:) VFHK;KSTU DH DK;ZOKGH IZKJEHK DH TK LDRH GSA D `I;K ,D CKJ 38 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS IQU% LKSPDJ CRK;SA FD VKIUS ESLLZ NHIUKJK;.K O;KIKJ IZK-FY- LS FDRUK :I;K M/KKJ FY;K GS VFKOK VKIUS PSD NSDJ MULS OKIL U XN JKF'K IZKIR DH FKH] LI'V DJSAA ````` `````````` ```````````````````````````````````` ``````````````````````````````````````````````````` ``````````` ```````````````````````````````MKJ MKJ MKJ MKJ& ESAUS VKIDS }KJK FN[KK;S X;S ,USDLJ AS EXIBIT -5 DS IST LA[;K 37 ,OA RYK'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU NTZ ESJS C;KU KSA DKS VPNH RJG LS I<+DJ LE> FY;K GSA ESA ;GKA ;G DGUK PKGRK GWA FD RY K'KH ,OA TCRH DH DK;ZOKGH DS NKSJKU FOHKKX DS VF/KDKFJ;KSA }KJK B L LACA/K ESA EQ>LS CKJ&CKJ IWNK X;K RKS ESAUS EKUFLD :I LS FKDDJ ;G TO KC NS FN;K FKKA YSFDU VC ESAUS VIUH IWJH YS[KK IQLRDKSA DKS NS[K FY ;K GS VKSJ ESA VC ;G 'KIFKIWOZD C;KU DJUK PKGRK GW FD ESAUS ESLLZ NHIUK JK;.K O;KIKJ IZK-FY- PSD LS C;KT IJ ISLK FY;K FKK ,OA MLDK HKQXRKU HKH P SD LS GH FD;K GSA ESAUS BL DEIUH DS LKFK DKSBZ UXN YSU&NSU UGHA F D;K GSA TGKA RD VK;DJ IZKO/KKUKSA DH CKR GS MLDS LACA/K ESA ESJS C; KU NTZ DJRS ODR FOHKKX }KJK EQ>S VOXR DJK FN;K X;K FKK TKS ESJH TKU DKJH ESA GSA FQJ HKH ESA IW.KZ :I LS LARQ'V GKSDJ BL I`'B DS CKJS ES A TOKC NS JGK GWAA AT THIS JUNCTURE IT IS IMPORTANT TO POINT OUT THAT THE MERE STATEMENT U/S 132[4] PER SE DOES NOT CONSTITUTE INCRIMINATING MAT ERIAL FOR THE PURPOSES OF ASSESSMENT U/S 153A. JUDGMENTS OF HONBLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE[84 TAXMANN.COM 287] IS THE CASE IN THE POINT. THE HEAD NOTE OF THE JUDGMENT IS AS UNDER: II. SECTION 153A OF THE INCOME-TAX ACT, 1961 - SEA RCH AND SEIZURE - ASSESSMENT IN CASE OF (GENERAL) - ASSESSMENT YEARS 2005-06 TO 2009-10 - WHETHER WHERE DURING SEARCH PROCEEDING ONE OF DIREC TORS OF ASSESSEE COMPANY SURRENDERED A CERTAIN SUM AS UNDISCLOSED IN COME ONLY FOR ASSESSMENT YEAR IN QUESTION AND NOT FOR EACH OF SIX ASSESSMENT YEARS PRECEDING YEAR OF SEARCH, SAID SUBMISSION COULD NOT BE SAID TO BE INCRIMINATING MATERIAL QUA EACH OF PRECEDING ASSESS MENT YEARS AND, CONSEQUENTLY, ASSUMPTION OF JURISDICTION UNDER SECT ION 153A AND CONSEQUENT ADDITIONS MADE BY ASSESSING OFFICER WERE NOT JUSTIFIED - HELD, YES [PARA 36][LN FAVOUR OF ASSESSEE] 8.3 SECTION 68 IS ATTRACTED WHERE AN ENTRY RELATING TO A SUM IS FOUND TO HAVE BEEN CREDITED IN THE BOOKS KEPT BY THE APPELLANT, W HICH THUS IMPLIES, 39 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS EXISTENCE OF BOOKS AND RECORDING OF A SUM WHICH THE ASSESSING OFFICER CONSIDERS AS DOUBTFUL. THE ASSESSING OFFICER THEN S TARTS ENQUIRY, SPECIFICALLY TO SATISFY HIMSELF OF THE SOURCE OF SU CH CREDIT. IF DURING THE ENQUIRY, HE IS SATISFIED THAT THE ENTRIES ARE NOT G ENUINE, THEM HE WILL HAVE EVERY RIGHT TO ADD THE SAID SUM REPRESENTED BY SUCH CREDIT ENTRY AS INCOME OF THE APPELLANT. THE SATISFACTION OF THE AS SESSING OFFICER IS THE BASIS OF INVOCATION OF HIS POWERS UNDER SECTION 68. HOWEVER, SUCH SATISFACTION MUST NOT BE ILLUSORY OR IMAGINATIVE BU T MUST HAVE BEEN DERIVED FROM RELEVANT FACTS AND FACTORS, AND IS ON THE BASIS OF PROPER ENQUIRY OF ALL MATERIAL BEFORE HIM BUT ALSO TO WHIC H HE HAS COMMANDED. THEREFORE U/S 68, THE ONUS IS ON THE APPELLANT TO O FFER EXPLANATION WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ACCOUNT A ND IF THE APPELLANT OFFERS NO EXPLANATION OR THE EXPLANATION OFFERED IS NOT IN THE OPINION OF THE AO, SATISFACTORY, THEN SUCH CASH CREDIT IS LIAB LE TO BE CHARGED TO THE INCOME TAX AS INCOME OF THE APPELLANT. IN THIS CASE THE APPELLANT DISCHARGED ITS ONUS BY FILING THE DOCUMENTS FOR WHI CH THE AO HAS NOT POINTED ANY DISCREPANCY. 8.4 HON'BLE RAJASTHAN HIGH COURT AND OTHER HON'BLE COURTS HELD THAT APPELLANT CANNOT BE ASKED TO EXPLAIN THE SOURCE OF THE SOURCE. THE RELEVANT PORTIONS OF THE VERDICTS GIVEN BY HON'BLE HIGH COURTS IN THE FOLLOWING CASES ARE AS UNDER:-] (I) IN THE CASE OF CIT VS JAI KUMAR BAKLIWAL (2014) 366 ITR 217 (RAJ): - HELD, DISMISSING THE APPEAL, THAT ALL THE CASH CRED ITORS WERE ASSESSED TO INCOME-TAX AND THEY PROVIDED A CONFIRMATION AS WELL AS THEIR PERMANENT ACCOUNT NUMBER. THEY HAD THEIR OWN RESPECTIVE BANK ACCOUNTS WHICH THEY HAD BEEN OPERATING AND IT WAS NOT THE CLAIM OF THE ASSESSING OFFICER THAT THE ASSESSEE WAS OPERATING THEIR BANK ACCOUNTS. MOS T OF THE CASH CREDITORS APPEARED BEFORE THE ASSESSING OFFICER AND THEIR STATEMENTS UNDER SECTION 131 OF THE INCOME-TAX ACT, 1961, WERE ALSO RECORDED ON OATH. THERE WAS NO CLINCHING EVIDENCE NOR HAD THE A SSESSING OFFICER BEEN ABLE TO PROVE THAT THE MONEY ACTUALLY BELONGED TO N ONE BUT THE ASSESSEE. THE ADDITION OF RS. 17,27,250 UNDER SECTION 68 WAS NOT JUSTIFIED. (II) IN THE CASE OF NEMI CHAND KOTHARI VS CIT (2003) 264 ITR 254 (GAU): HELD THAT IT IS NOT THE BUSINESS OF THE ASSESSEE TO FIND OUT THE SOURCE OR 40 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS SOURCES FROM WHERE THE CREDITOR HAD ACCUMULATED THE AMOUNT WHICH HE HAD ADVANCED IN THE FORM OF LOAN TO THE ASSESSEE AN D SECTION 68 CANNOT BE READ TO SHOW THAT IN THE CASE OF FAILURE OF SUB- CREDITORS TO PROVE THEIR CREDITWORTHINESS THE AMOUNT ADVANCED AS LOAN TO THE ASSESSEE BY THE CREDITOR SHALL HAVE TO BE READ AS COROLLARY AS THE INCOME FROM UNDISCLOSED SOURCE OF THE ASSESSEE HIMSELF. (III) IN THE CASE OF SHANKAR INDUSTRIES VS CIT (1978) 114 ITR 689 (CAL.) : OBSERVED THAT THAT MERE ESTABLISHING IDENTITY OF TH E CREDITOR AND NOTHING MORE IS NOT SUFFICIENT AND SOMETHING MORE IS TO BE PROVED BY THE ASSESSEE AND IN THE AFORESAID CASE, THE ASSESSEE WAS UNABLE TO PROVE BEYOND IDENTITY AND, THEREFORE, THE CALCUTTA HIGH COURT UP HELD THE FINDINGS OF THE TRIBUNAL. HOWEVER, IN THE PRESENT CASE, I NOTICE TH AT NOT ONLY THE IDENTITY OF THE CREDITOR HAS BEEN PROVED BUT FROM THE FACTS WHICH HAVE BEEN CULLED OUT, THE ASSESSEE HAS BEEN ABLE TO PROVE THE GENUIN ENESS ALSO. (IV) IN THE CASE OF KANHAILAL JANGID VS ACIT (2008) 217 CTR 354 (RAJ): HELD THAT THE BURDEN DOES NOT GO BEYOND TO PUT THE ASSES SEE UNDER AN OBLIGATION TO FURTHER PROVE THAT WHERE FROM THE CRE DITOR HAS GOT OR PROCURED THE MONEY TO BE DEPOSITED OR ADVANCED TO T HE ASSESSEE. THE FACT THAT THE EXPLANATION FURNISHED BY THE CREDITOR ABOUT THE SOURCE FROM WHERE HE PROCURED THE MONEY TO BE DEPOSITED OR ADVA NCED TO THE ASSESSEE IS NOT RELEVANT FOR THE PURPOSES OF REJECT ING THE EXPLANATION FURNISHED BY THE ASSESSEE AND MAKE ADDITIONS OF SUC H DEPOSITS AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES BY INVOKIN G SECTION 68 UNLESS IT CAN BE SHOWN BY THE DEPARTMENT THAT SOURCE OF SUCH MONEY COMES FROM THE ASSESSEE HIMSELF OR SUCH SOURCE COULD BE TRACED TO THE ASSESSEE ITSELF. (V) IN THE CASE OF ARAVALI TRADING CO. VS ITO (2008) 220 CTR (RAJ): OBSERVED THAT THE FACT THAT THE EXPLANATION FURNISH ED BY THE FOUR CREDITORS ABOUT THE SOURCES WHERE FROM THEY ACQUIRE D THE MONEY WAS NOT ACCEPTABLE BY THE REVENUE COULD NOT PROVIDE NECESSA RY NEXUS FOR DRAWING INFERENCE THAT THE AMOUNT ADMITTED TO BE DEPOSITED BY THESE FOUR PERSONS BELONGED TO THE ASSESSEE. THE ASSESSEE HAVI NG DISCHARGED HIS BURDEN BY PROVING THE EXISTENCE OF THE DEPOSITORS A ND THE DEPOSITORS OWING THEIR DEPOSITS, HE WAS NOT FURTHER REQUIRED T O PROVE SOURCE OF SOURCE. (VI) IN, THE CASE COMMISSIONER OF INCOME-TAX, JAIPU R-II VERSUS MORANI AUTOMOTIVES (P.) LTD. NO. D.B. IT APPEAL NO. 619 OF 2011 DATED.- OCTOBER 23, 2013 HON'BLE RAJASTHAN HIGH COURT HELD THAT : '10. THE POINTS AS SOUGHT TO BE RAISED BY THE APPE LLANT-REVENUE IN THE PRESENT CASE ARE ALL THE MATTERS RELATING TO APPREC IATION OF EVIDENCE. THE RELEVANT FACTORS HAVE BEEN TAKEN INTO ACCOUNT A ND CONSIDERED BY THE APPELLATE AUTHORITIES BEFORE RETURNING THE F INDINGS IN FAVOUR 41 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS OF THE ASSESSEE. EVEN AS REGARDS THE THREE REFERRED SHARE CAPITAL CONTRIBUTORS, IT IS NOTICED THAT THEY ARE EXISTING ASSESSEES HAVING PA NUMBERS; AND ARE BEING REGULARLY ASSESSED TO TAX. T HE APPELLATE AUTHORITIES CANNOT BE SAID TO HAVE ERRED IN DELETIN G THE ADDITIONS IN THEIR REGARD TOO AT THE HANDS OF ASSESSEE-COMPANY. 11. ULTIMATELY, THE QUESTION AS TO WHETHER THE SOUR CE OF INVESTMENT OR OF CREDIT HAS BEEN SATISFACTORILY EXPLAINED OR NOT REMAINS WITHIN THE REALM OF APPRECIATION OF EVIDENCE; AND THE COURTS H AVE CONSISTENTLY HELD THAT SUCH A MATTER DOES NOT GIVE RISE TO ANY S UBSTANTIAL QUESTION OF LAW. IN THE CASE OF CIT V. ORISSA CORPN . (P.) LTD. [1986) 159 ITR 78 (SC), THE HON'BLE SUPREME COURT HELD AS UNDER:- '13. IN THIS CASE, THE ASSESSEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE R EVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEES. THEIR IND EX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES UNDER S. 131 AT THE INSTANCE OF THE ASSESSE E, DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WH ETHER THEY WERE CREDIT-WORTHY OR WERE SUCH WHO COULD ADVANCE THE AL LEGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CALLED AL LEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE ASSESSEE COULD NOT DO A NY THING FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLU SION THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON HIM, THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION IS BASED ON SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT, NO QUEST ION OF LAW AS SUCH ARISES.' 12. IN THE CASE OF CIT V. CHANDRA PRAKASH RANA [200 1] 48 DTR 271 (RAJ.), THIS COURT NOTICED SIMILAR NATURE GROUNDS URGED ON BEHALF OF THE REVENUE AND FOUND THE SAME NOT LEADING TO ANY SUBST ANTIAL QUESTION OF LAW. THIS COURT NOTICED, OBSERVED, AND HELD AS U NDER: 7. LEARNED COUNSEL FOR THE APPELLANT (REVENUE) CON TENDED THAT FIRSTLY TRIBUNAL ERRED IN ACCEPTING THE EXPLANATION OFFERED BY ASSESSEE IN RELATION TO SOURCE OF INCOME. HIS SECOND SUBMISSION WAS THAT WHAT WAS OFFERED BY ASSESSEE WAS NO EXPLANATION AND HENCE SHOULD NOT HA VE BEEN ACCEPTED AND LASTLY LEARNED COUNSEL MADE SINCERE ATTEMPT ON HIS PART AFTER TAKING US THROUGH FACTUAL SCENARIO OF THE EXPLANATION AND CONTENDED THAT IT CAN NEVER BE TAKEN AS SATISFACTORY EXPLANATION FOR DELE TING THE ADDITION MADE BY AO. WE DO NOT AGREE TO THIS SUBMISSION FOR MORE THAN ONE REASON. 8. IN THE FIRST PLACE, IT IS A PURE QUESTION OF FAC T, WHAT TO SAY QUESTION OF LAW, MUCH LESS SUBSTANTIAL QUESTION OF LAW. SECONDLY, TH IS COURT CANNOT AGAIN IN 42 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS THIS APPEAL UNDERTAKE THE EXAMINATION OF FACTUAL IS SUES NOR CAN DRAW FACTUAL INFERENCES ON THE BASIS OF EXPLANATION OFFE RED BY ASSESSEE. THIRDLY, ONCE THE EXPLANATION IS ACCEPTED BY THE TWO APPELLA TE COURTS I.E. CIT(A) AND TRIBUNAL IN THIS CASE, THEN IN SUCH EVENT, A CO NCURRENT FINDING RECORDED ON SUCH EXPLANATION BY TWO APPELLATE COURT S IS BINDING ON THE HIGH COURT. 9. PERUSAL OF IMPUGNED FINDING QUOTED SUPRA WOULD G O TO SHOW THAT TRIBUNAL DID EXAMINE THE EXPLANATION OFFERED BY ASSESSEE IN DETAIL AND THEN RECORDED A FINDING FOR ITS ACCEPTANCE. SUCH FINDING WHEN CHALLENGED DOES NOT CONSTITUTE A SUBSTANTIAL QUESTION OF LAW WITHIN THE MEANING OF S. 260A IBID IN AN APPEAL ARISING OUT OF SUCH ORDER. 10. IN OUR OPINION, THEREFORE, ONCE THE CIT(A) AND TRIBUNAL ACCEPTED THE EXPLANATION OF ASSESSEE AND ACCORDINGLY, DELETED CE RTAIN ADDITIONS MADE BY AO HOLDING THE TRANSACTION OF SHARES TO BE GENUI NE, THEN IT WOULD NOT INVOLVE ANY SUBSTANTIAL ISSUE OF LAW AS SUCH. IN OT HER WORDS, THIS COURT IN ITS APPELLATE JURISDICTION UNDER S. 260A IBID, WOUL D NOT AGAIN DE NOVO HOLD YET ANOTHER FACTUAL INQUIRY WITH A VIEW TO FIND OUT AS TO WHETHER EXPLANATION OFFERED BY ASSESSEE AND WHICH FOUND ACC EPTANCE TO THE CIT(A) AND TRIBUNAL IS GOOD OR BAD, OR WHETHER IT WAS RIGH TLY ACCEPTED, OR NOT. IT IS ONLY WHEN THE FACTUAL FINDING RECORDED HAD BEEN ENTIRE!, DE HORS THE SUBJECT, OR THAT IT HAD BEEN BASED ON NO REASONING, OR BASED ON ABSURD REASONING TO THE EXTENT THAT NO PRUDENT MAN OF AVER AGE JUDICIAL CAPACITY COULD EVER REACH TO SUCH CONCLUSION, OR THAT IT HAD BEEN FOUND AGAINST ANY PROVISION OF LAW, THEN A CASE FOR FORMULATION OF SU BSTANTIAL QUESTION OF LAW' ON SUCH FINDING CAN BE SAID TO HAVE BEEN MADE OUT. 11. IN OUR VIEW, NO SUCH ERROR COULD BE NOTICED BY US IN THE IMPUGNED ORDER BECAUSE AS OBSERVED SUPRA, THE TRIBUNAL DID GO INTO THE DETAILS OF EXPLANATION OFFERED BY ASSESSEE AND THEN ACCEPTED T HE EXPLANATION BY PLACING RELIANCE ON THE DOCUMENTS FILED BY ASSESSEE . AS A CONSEQUENCE THEREOF, THE ADDITIONS MADE BY AO CAME TO BE DELETE D.' 13 IN CIT V. SHREE BARKHA SYNTHETICS LTD. [2004] 27 0 ITR 477 (RAJ.), IN A SIMILAR NATURE MATTER, THIS COURT OBSERVED THAT THE TRIBUNA L HAVING FOUND THAT THE COMPANIES FROM WHICH THE SHARE APPLICATION MONEY HA D BEEN RECEIVED BY THE ASSESSEE-COMPANY WERE GENUINELY EXISTING AND TH E IDENTITY OF THE INDIVIDUAL INVESTORS WERE ALSO ESTABLISHED AND THEY HAD CONFIRMED THE FACT OF MAKING INVESTMENT, THE FINDING THAT ASSESSEE HAD DISCHARGED INITIAL BURDEN AND ADDITION UNDER SECTION 68 COULD NOT BE S USTAINED, WAS ESSENTIALLY A FINDING OF FACT. THIS COURT SAID,- '1 9. A PERUSAL OF THE AFORESAID FINDING GOES TO SHOW THAT DELETION HAS BE EN MADE ON APPRECIATION OF EVIDENCE, WHICH WAS ON RECORD FINDI NG THAT THERE WAS EXISTENCE OF INVESTORS AND THEIR CONFIRMATION HAS B EEN OBTAINED, WERE FOUND TO BE SATISFACTORY. ALL THESE CONCLUSIONS ARE CONCLUSIONS OF FACT 43 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS BASED ON MATERIAL ON RECORD AND, THEREFORE, CANNOT BE SAID TO BE PERVERSE SO AS TO GIVE RISE TO QUESTION OF LAW, WHICH MAY BE REQUIRED TO BE CONSIDERED IN THIS APPEAL UNDER S.260A OF THE IT AC T.' 14. THE RATIO OF THE DECISIONS AFORESAID DIRECTLY APPLIES TO THE PRESENT CASE TOO. HEREIN, AS NOTICED, THE APPELLATE AUTHORITIES HAVE RETURNED THE FINDINGS OF FACT IN FAVOUR OF THE ASSESSEE AFTER DU E APPRECIATION OF THE EVIDENCE ON RECORD, ON RELEVANT CONSIDERATIONS, AND ON SOUND REASONINGS. THESE FINDINGS HAVE NEITHER BEEN SHOWN SUFFERING FR OM ANY PERVERSITY NOR APPEAR ABSURD NOR ARE OF SUCH NATURE THAT CANNOT BE REACHED AT ALL. THUS, NO CASE FOR INTERFERENCE IN THE FINDINGS OF THE APP ELLATE AUTHORITIES IS MADE OUT. IN THE RESULT, THE APPEAL FAILS AND IS, THEREFORE, DISMISSED.' 9. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMST ANCES OF THE CASE AND CASE LAWS RELIED ON (SUPRA), THE IDENTITY, CREDITWO RTHINESS AND GENUINENESS OF TRANSACTIONS OF THESE COMPANIES CANN OT BE HELD DOUBTFUL AND AO IS NOT JUSTIFIED IN MAKING THE ADDITION OF R S. 4,82,00,000/- MORE SO WHEN AS A RESULT OF SEARCH, POST SEARCH AND ASSE SSMENT PROCEEDINGS NO INCRIMINATING MATERIAL OR EVIDENCE WAS GATHERED TO SHOW THAT IMPUGNED LOANS REPRESENTS TO UNDISCLOSED INCOME OF THE APPELLANT. THUS THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.4,8 2,00,000/- APPEAL IS STAND ALLOWED IN GROUND NO. 1 & 2. AS REGARDS THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF THE CIT VS RAVI MATHUR (SUPRA) WE NOTE THAT THE HON'BLE HIGH COURT HAS GIVEN THE FINDING AND OBSERVATION ON THE SPECIFIC F ACTS OF THE SAID CASE IN PARA 14 AND 15 AS UNDER: 14 HAVING NOTICED THE ARGUMENTS OF THE LEARNED COUN SEL FOR THE PARTIES, WE DEEM IT PROPER AT THE OUTSET TO TAKE IN TO CONSIDERATION THE FINDING OF THE TRIBUNAL ABOUT RETRACTION/RESILI NG OF THE STATEMENTS RECORDED UNDER SECTION 132(4) AS THE TRI BUNAL HAS PRIMARILY COME TO A FINDING THAT RETRACTION IS PROP ER. WE WOULD ALSO DEAL WITH THE JUDGMENTS RELIED ON BY THE LEARN ED COUNSEL WHICH HAS A BEARING ON THE ISSUES AND WOULD THEN GI VE OUR OWN VIEW ON QUESTIONS POSED BY THE REVENUE. 44 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS 15. IN OUR VIEW, THE STATEMENTS RECORDED UNDER SECTI ON 132(4) HAVE GREAT EVIDENTIARY VALUE AND IT CANNOT BE DISCARDED AS IN THE INSTANT CASE BY THE TRIBUNAL IN A SUMMARY OR IN A CRYPTIC M ANNER. STATEMENTS RECORDED UNDER SECTION 132(4) CANNOT BE DISCARDED BY SIMPLY OBSERVING THAT THE ASSESSEE RETRACTED THE ST ATEMENTS. ONE HAS TO COME TO A DEFINITE FINIDNG AS TO THE MANNER IN WHICH RETRACTION TAKES PLACE. ON PERUSAL OF THE FACTS NOT ICED HEREINBEFORE, WE HAVE NOTICED THAT WHILE THE STATEM ENTS WERE RECORDED AT THE TIME OF SEARCH ON 09/11/1995 AND ON WARDS BUT RETRACTION IS ALMOST AFTER AN YEAR AND THAT TOO WHE N THE ASSESSMENT PROCEEDINGS WERE BEING TAKEN UP IN NOVEM BER 1996. WE MAY OBSERVE THAT RETRACTION SHOULD BE MADE AS SO ON AS POSSIBLE AND IMMEDIATELY AFTER SUCH A STATEMENT HAS BEEN RECORDED, EITHER BY FILING A COMPLAINT TO THE HIGHE R OFFICIALS OR OTHERWISE BROUGHT TO THE NOTICE OF THE HIGHER OFFIC IALS, EITHER BY WAY OF A DULY SWORN AFFIDAVIT OR STATEMENTS SUPPORT ED BY CONVINCING EVIDENCE THROUGH WHICH AN ASSESSEE COULD DEMONSTRATE THAT THE STATEMENTS INITIALLY RECORDED WERE UNDER PRESSURE/COERCION AND FACTUALLY INCORRECT. IN OUR V IEW, RETRACTION AFTER A SUFFICIENT LONG GAP OR POINT OF TIME, AS IN THE INSTANT CASE, LOOSES ITS SIGNIFICANCE AND IS AN AFTERTHOUGHT. ONC E STATEMENTS HAVE BEEN RECORDED ON OATH, DULY SIGNED, IT HAS A G REAT EVIDENTIARY VALUE AND IT IS NORMALLY PRESUMED THAT WHATEVER STATED AT THE TIME OF RECORDING OF STATEMENTS UNDER SECTIO N 132(4), ARE TRUE AND CORRECT AND BRINGS OUT THE CORRECT PICTURE , AS BY THAT TIME THE ASSESSEE IS UNINFLUENCED BY EXTERNAL AGENCIES. THUS, WHENEVER AN ASSESSEE PLEADS THAT THE STATEMENTS HAVE BEEN OB TAINED FORCEFULLY BY COERCION/UNDUE INFLUENCE WITHOUT MATE RIAL/CONTRARY TO THE MATERIAL, THEN IT SHOULD BE SUPPORTED BY STRONG EVIDENCE WHICH WE HAVE OBSERVED HEREINBEFORE. ONCE A STATEMENT IS RECORDED UNDER SECTION 132(4) SUCH A STATEMENT CAN BE USED A S A STRONG EVIDENCE AGAINST THE ASSESSEE IN ASSESSING THE INCO ME, THE BURDEN LIES ON THE ASSESSEE TO ESTABLISH THAT THE ADMISSIO N MADE IN THE STATEMENTS ARE INCORRECT/WRONG AND THAT BURDEN HAS TO BE DISCHARGED BY AN ASSESSEE AT THE EARLIEST POINT OF TIME AND IN THE INSTANT CASE WE NOTICE THAT THE A.O. IN THE ASSESSM ENT ORDER OBSERVES:- REGARDING THE AMOUNT OF RS. 44.285 LAKHS, IT IS N OW CONTENDED THAT THE STATEMENT U/S 132(4) WAS NOT CORRECT AND T HESE AMOUNTS ARE IN THOUSANDS, NOT LAKHS I.E. IT IS NOT ATTEMPTE D TO RETRACT FROM THE STATEMENTS MADE AT THE TIME OF S&S OPERATIONS. 45 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS THEREFORE, WHAT WE GATHER FROM THE ASSESSMENT ORDE R AND ON PERUSAL OF THE ABOVE FINDING THAT THE RETRACTION WA S AT THE STAGE WHEN THE ASSESSMENT PROCEEDINGS WERE BEING FINALIZE D I.E. ALMOST AFTER A GAP OF MORE THAN AN YEAR. SUCH A SO-CALLED RETRACTION IN OUR VIEW IS NO RETRACTION IN LAW AND IS SIMPLY A SE LF SERVING STATEMENT WITHOUT ANY MATERIAL. THUS, IT IS CLEAR THAT THE ISSUE BEFORE THE HON'BLE HIGH COURT WAS RETRACTION OF STATEMENT BY THE ASSESSEE AFTER EXPIRY OF MORE T HAN ONE YEAR FROM THE DATE OF THE STATEMENT RECORDED U/S 132(4) OF THE AC T WHEREAS IN THE CASE IN HAND, FIRST OF ALL THERE IS NO ADMISSION AND SEC ONDLY THE CLARIFICATION IS GIVEN BY THE ASSESSEE IN THE SAME PROCESS OF INVEST IGATION BY THE INVESTIGATION WING DURING THE POST SEARCH ENQUIRY. HENCE, IT CANNOT BE CONSIDERED AS AN AFTERTHOUGHT RETRACTION OF THE ADM ISSION WITHOUT ANY BASIS. THEREFORE, THE SAID DECISION OF THE HON'BLE HIGH COURT WILL NOT HELP THE CASE OF THE REVENUE. THE HONBLE BOMBAY HIGH CO URT IN THE CASE OF CIT VS. DEEPAK KUMAR AGARWAL (SUPRA), IT WAS HELD I N PARA 34 AND 35 AS UNDER: 34. THERE AS WELL, RELIANCE WAS PLACED ON ALL CARGO GLOBAL LOGISTIC LTD. ( SUPRA ) AND EQUALLY, THE CONCLUSION THAT HAS BEEN REACHED T HAT ONCE THERE IS NO INCRIMINATING MATERIAL IN SUPPORT OF THE ADDITION A ND BROUGHT ON RECORD BY THE REVENUE, THEN, THE EARLIER VIEW OF THIS COURT BINDS THE REVENUE EVEN ON THIS ADDITION. THUS, EVEN THIS QUESTION CANNOT BE TERMED AS SUBSTANTIAL QUESTION OF LAW IN THE LIGHT OF THE TWO JUDGMENTS OF THIS COURT IN CONTINENTAL WAREHOUSING CORPN. AND ALL CARGO GLOBAL LOGISTICS LTD. ( SUPRA ) FOLLOWED BY SKS ISPAT & POWER LTD. ( SUPRA ). 35. AS A RESULT OF THE ABOVE DISCUSSION AND THE QUESTI ON BEING COMMON TO ALL THE APPEALS, WE DISMISS ALL THE APPEALS OF THE REVENUE. THERE WILL BE NO ORDER AS TO COSTS. THUS, THE STATEMENT RECORDED U/S 132(4) OF THE ACT CANNOT BE CONSIDERED AS AN INCRIMINATING MATERIAL FOUND AND SEIZED DURIN G THE SEARCH. 46 ITA NO. 561/JP/2018 DCIT VS M/S A.M. EXPORTS ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE AND FURTHER THE DOCUMENTARY EVIDENCE PRODUCED BY TH E ASSESSEE WHICH ESTABLISHED THE FACT OF TRANSACTION OF LOAN TAKEN B Y THE ASSESSEE, THEIR IDENTITY, CAPACITY AND GENUINENESS BEING ROUTED THR OUGH THE BANKING CHANNEL AT THE TIME OF RECEIPT AS WELL AS REPAYMENT OF THE LOAN ALONGWITH PAYMENT OF INTEREST WHICH WAS SUBJECTED TO TDS, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE FINDING OF THE LD. CIT(A) QUA THIS ISSUE, HENCE, WE UPHOLD THE SAME. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JANUARY, 2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07 TH JANUARY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CENTRAL CIRCLE-1, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S A.M. EXPORTS, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K]T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 561/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR