ACIT, New Delhi V. M/s. Twinkle Traders Pvt. Ltd., Kolkata

ITA 5691/DEL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5870 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Document seized; Question of law; Scheme of amalgamation; Documents seized
• Section: 142(1); 153A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.5691/DEL/2016 ASSESSMENT YEAR : 2009-10 ACIT, CENTRAL CIRCLE- 30, NEW DELHI. VS. TWINKLE TRADERS PVT. LTD., 16 B, SHAKESPEAR SARANI, KOLKATA. PAN : AABCT0576E (APPELLANT) (RESPONDENT) C.O. NO.26/DEL/2018 (IN ITA NO.5691/DEL/2016) ASSESSMENT YEAR : 2009-10 M/S. TWINKLE TRADERS PVT. LTD., (NOW LUCKY HOLDINGS PVT. LTD.), 16 B, SHAKESPEAR SARANI, KOLKATA. VS. ACIT, CENTRAL CIRCLE- 30, NEW DELHI. PAN : AABCT0576E (APPELLANT) (RESPONDENT) DEPARTMENT BY : MS. RACHNA SINGH, CIT-DR, ASSESSEE BY : SHRI AJAY VOHRA, SR. ADV. MS. DEEPASHREE RAO, CA MR. VIBHU GUPTA, CA DATE OF HEARING : 08-05-2018 DATE OF PRONOUNCEMENT : 30-05-2018 O R D E R PER R. K. PANDA, AM : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 31.08.2016 OF CIT(A)- 30, NEW DELHI RELATING TO ASS ESSMENT YEAR 2009-10. THE 2 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST THE APPEAL FILED BY THE REVENUE. FOR THE SAKE OF CONVENIENCE, THESE WERE HEARD TOGET HER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE FILED THE ORIGINAL RETURN OF INCOME ON 23.09.2009 DECLARING TOTAL INCOME OF RS.2 4,721/-. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T. ACT, 1961 WAS CONDUCTED BY THE INVESTIGATION WING OF THE DEPARTMENT ON 14.11.2011 IN THE JINDAL GROUP OF CASES. DURING THE SEARCH, THE DOCUMENTS/BILLS BELO NGING TO THE ASSESSEE, M/S TWINKLE TRADERS PVT. LTD., 1- RAJ BALLAV SAHA LANE, HOWRAH WERE ALSO FOUND AND SEIZED FROM THE RESIDENTIAL PREMISES OF SHRI S. S. JINDAL, MRS. SUBHADRA JINDAL, MR. BHAVESH JINDAL & MS. AAKRITI JINDAL, 12 A, GREEN AVENUE, VASANT KUNJ, NEW DELHI IN WHOSE NAME SEARCH WARRANT OF AUT HORIZATION WAS ISSUED. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS CENTRALI ZED WITH CENTRAL CIRCLE- 14, NEW DELHI VIDE ORDER F.NO. CIT-KOL-1/CENT./12-13/59 22 DELHI DATED 27.12.2012. ACCORDINGLY, THE FOLLOWING SATISFACTIO N NOTE WAS RECORDED :- SATISFACTION NOTE FOR INITIATING PROCEEDINGS UNDER SECTION 153C READ WITH 153A OF THE INCOME TAX ACT, 1961 IN THE CASE OF M/S TWINKLE TRADERS PVT. LTD. (PAN-AABCT0576E) THE CASE OF M/S TWINKLE TRADERS PVT. LTD. WAS CENTR ALIZED U/S 127 OF THE INCOME TAX ACT, 1961 WITH THE ASSESSING OFFICER, CE NTRAL CIRCLE- 14, NEW DELHI VIDE ORDER NO.19/CIT, C-II/CENT./12-13/4050 DATED 18.02. 2013 PASSED BY CIT (CENTRAL- II), KOL & SUBSEQUENTLY TO THIS CIRCLE BY CIT(CENTR AL)-III, NEW DELHI VIDE NO.1302 DATED 16.09.2013. ACTION UNDER SECTION 132 OF THE INCOME TAX WAS TAKE N IN JINDAL GROUP OF CASES BY INVESTIGATION DIRECTORATE, NEW DELHI ON 14.11.20 11 AT ITS BUSINESS & RESIDENTIAL PREMISES. DURING THE COURSE OF SEARCH PROCEEDINGS FROM DIFFERENT RESIDENTIAL/BUSINESS PREMISES SEVERAL DOCUMENTS WER E FOUND AND SEIZED. WHILE 3 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 EXAMINING THE SEIZED DOCUMENTS/BOOKS OF ACCOUNT ETC , I HAVE COME ACROSS THE FOLLOWING DOCUMENTS: PREMISE FROM WHERE DOCUMENTS FOUND AND SEIZED: OFFI CE/RESIDENCE OF SH. S.S. JINDAL, MR. BHAVESH JINDAL; ADDRESS 12A, GREEN AVENUE, SECT OR- D, POCKET- 3, VASANT KUNJ, NEW DELHI PARTY NO.R4. ANNEXURE NO. PAGE NO. DESCRIPTION A-9 31-44 SCHEME OF AMALGAMATION OF SHEKHAWATI VANI JYA VIKASH, TWINKLE TRADERS PVT. LTD. LUCKY HOLDINGS PRIVATE LIMITED. PREMISE FROM WHERE DOCUMENTS FOUND AND SEIZED: OFFI CE/ RESIDENCE OF SH. S.S. JINDAL, MR. BHAVESH JINDAL; ADDRESS 12A, GREEN AVEN UE, SECTOR- D, POCKET- 3, VASANT KUNJ, NEW DELHI PARTY NO.R1. A-7 21 BALLOT PAPER FOR EQUITY SHAREHOLDERS. I HAVE EXAMINED THE ABOVE DOCUMENTS AND THE CONTENT S NOTED/WRITTEN THEREIN. AFTER EXAMINATION OF THESE DOCUMENTS, I AM SATISFIE D THAT THESE AFORESAID DOCUMENTS BELONG TO M/S TWINKLE TRADERS PVT. LTD. IN VIEW OF THE SAME, I AM FURTHER SATISFIED THAT IT IS FIT CASE FOR INITIATING PROCEEDINGS U/S 153C RWS 153A OF THE INCOME TAX ACT, 1961. ACCORDINGLY, NOTICES U/S 153C RWS 153A ARE REQUIRED TO BE ISSUED AS PER PROVISIONS OF THE INCOME TAX ACT, 1961. 3. THE ASSESSING OFFICER ACCORDINGLY ISSUED NOTICE U/S 153C R.W.S. 153A TO THE ASSESSEE ON 03.12.2013. THE ASSESSEE IN RESPON SE TO THE SAID NOTICE, FILED ITS RETURN OF INCOME ON 20.12.2013 DECLARING TOTAL INCO ME OF RS.24,721/- WHICH WAS THE SAME INCOME DECLARED IN THE ORIGINAL RETURN . IN RESPONSE TO THE STATUTORY NOTICES ISSUED U/S 143(2) AND 142(1) ALONG WITH THE QUESTIONNAIRE, THE ASSESSEE FILED REQUISITE DETAILS AS ASKED FOR BY THE ASSESSI NG OFFICER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OB SERVED THAT THE ASSESSEE COMPANY WAS HAVING INVESTMENTS OF UNQUOTED SHARES O F PRIVATE LIMITED COMPANIES AMOUNTING TO RS.19,07,24,000/- AS ON 31.0 3.2008. HE OBSERVED THAT THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR HA S SOLD THESE SHARES AT 4 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 ALMOST SAME PRICE TO DIFFERENT PRIVATE LIMITED COMP ANIES. HE OBSERVED THAT DURING THE INVESTIGATION CONDUCTED AT THE TIME OF S EARCH, IN THE POST-SEARCH INVESTIGATION AND DURING THE ASSESSMENT PROCEEDINGS , 44 PRIVATE LIMITED COMPANIES HAVE PURCHASED THE INVESTMENT OF THE COMP ANIES AND HAVE MADE PAYMENTS. THE STATEMENTS OF THE ENTRY OPERATORS WE RE ALSO RECORDED WHICH THE ASSESSING OFFICER REPRODUCED AT PAGE 7 TO 10 OF THE ASSESSMENT ORDER. HE ASKED THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHI NESS OF THESE COMPANIES AND GENUINENESS OF THE TRANSACTIONS. REJECTING THE VAR IOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T. ACT, THE ASSESSING OFFICER MADE ADDITION OF RS.11,62,00,000/- TO THE T OTAL INCOME OF THE ASSESSEE ON ACCOUNT OF SALE OF INVESTMENTS TREATING THE SAME AS UNEXPLAINED CASH CREDIT. 4. BEFORE THE LD. CIT(A), APART FROM CHALLENGING TH E ADDITION ON MERIT, THE ASSESSEE ALSO CHALLENGED THE VALIDITY OF ASSUMPTION OF JURISDICTION U/S 153C/153A IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND WHEN THE ASSESSMENT PROCEEDING WAS NOT P ENDING. 5. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE AS SESSEE AND FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. KABUL CHAWLA REPORTED IN 380 ITR 573 AND THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJ PAL BHATIA REPORTED IN 333 ITR 315 DELETED THE ADDITION ON THE GROUND THAT NO ADDITION CAN BE MADE IN ABSEN CE OF ANY INCRIMINATING 5 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 MATERIALS FOUND DURING THE COURSE OF SEARCH. THE R ELEVANT OBSERVATION OF THE LD. CIT(A) FROM PARA 5.4 ONWARDS READS AS UNDER :- 5.4 I HAVE CAREFULLY CONSIDERED ASSESSMENT ORDER, WRITTEN SUBMISSION, CASE LAWS RELIED UPON AND ORAL ARGUMENTS OF LD. AR. THE OBJE CTION/ARGUMENT OF THE APPELLANT ARE DISCUSSED AS UNDER :- (I) SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT, W AS INITIATED ON 14.11.2011 IN SHRI B.C. JINDAL GROUP OF CASES. IN THE CASE OF THE ASSESSEE, NOTICE U/S 153C OF THE ACT, WAS ISSUED ON 03.12.2013, AFTER RECORDING REASONS. IN THE REASONS RECORDED BY THE A.O., THE TWO DOCUMENTS HAVE BEEN MENTIONED AS ANNE XURE A6 AND A-7. (II) IN THE ASSESSMENT PROCEEDINGS, THE A.O. HAS S TATED THAT THE ASSESSEE HAS RECEIVED DURING F.Y. 2005-06, FROM 26 PERSONS SHARE CAPITAL OF RS. 7.45 CRORE, WHICH INCLUDES SHARE PREMIUM OF RS. 6.70 CRORE. AS PER TH E A.O., THE INVESTMENT BY 26 PERSONS HAS BEEN RECEIVED FROM 18 PERSONS. THE ASSE SSEE HAS INVESTMENT AT THE END OF THE F. Y. 2005-06 IN EQUITY SHARES OF UNLISTED COMP ANIES, AMOUNTING TO RS. 16,91,00,000/-, WHICH INCLUDES FUNDS OF RS. 7.45 CR ORES FROM SHARE CAPITAL/PREMIUM. HOWEVER, IN A.Y. 2006-07, THE SHARE CAPITAL/ PREMIU M OF RS. 7.45 CRORES, HAS BEEN CONSIDERED AS UNEXPLAINED AND ADDED TO THE TOTAL IN COME U/S 68 OF THE ACT. (III) IN THE ASSESSMENT ORDER, THE A.O. HAS STATED THAT THE ASSESSEE HAS SOLD THE INVESTMENT DURING F.Y. 2008-09, AMOUNTING TO RS.19, 07,24,000/- AT PAR. HOWEVER, THE A.O. WAS OF THE VIEW THAT THE INVESTMENT OF EQUITY SHARES SOLD, TO THE 45 PAPER COMPANIES AND THESE PAPER COMPANIES, WHO HAVE PAID AGAINST ALLEGED SALE PROCEEDS OF INVESTMENT, IN TURN HAS RECEIVED THE MONEY FROM LAYER 3 COMPANIES. IN VIEW OF THE ABOVE, A.O. DETERMINED THE UNEXPLAIN ED CASH CREDIT OF RS.19,07,24,000/- FROM SALE OF INVESTMENT IN THE YE AR UNDER CONSIDERATION. HOWEVER, THE A.O. ALLOWED A SET OFF OF RS.7,45,00,000/-, ON ACCOUNT OF THE ADDITION MADE U/S 68 OF THE ACT, IN A. Y. 2006-07, ON ACCOUNT OF SHARE C APITAL/SHARE PREMIUM, BY CONSIDERING THE WHOLE AMOUNT HAS BEEN INVESTED INEQ UITY SHARES. ACCORDINGLY, THE A.O. HAS MADE THE ADDITION OF RS.11,62,00,000/-, AS AGAINST THE CORRECT AMOUNT OF RS 11,62,24,000/-, IF THE AMOUNT OF INVESTMENT IS TAKE N ABSOLUTE FIGURE INSTEAD IN CRORES. (IV) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS S UBMITTED THAT ALL THE DETAILS RELATING TO SALE OF INVESTMENT IN SHARES, WERE FURN ISHED IN THE ASSESSMENT PROCEEDING, AS UNDER: SALE BILL, CONFIRMATIONS FROM THE BUYER COMPANIES, RELEVANT PORTION OF BANK STATEMENT SHOWING THE TR ANSACTIONS, DETAIL OF INVESTMENT SOLD TO BUYER COMPANIES ALON G WITH THEIR PAN, OLD AND NEW ADDRESSES, NAME OF SCRIPTS SOLD, AMOUNT AND DAT E OF SALE. HOWEVER, A.O. TOOK ADVERSE VIEW ON THE BASIS OF POS T SEARCH ENQUIRIES IN THE CASE OF JINDAL GROUP, BANK ENQUIRIES, ALL THE COMPANIES SHO W MEAGER PROFITS, ALL COMPANIES ARE SITUATED AT TABLE PLACE NOT HAVING ANY INFRASTR UCTURES, APPELLANT FAILED TO PRODUCE THE PERSON CONDUCTING THE OPERATIONS OF THESE COMPA NIES AND ALSO THE STATEMENTS RECORDED OF VARIOUS PERSONS, RELATING TO SHARE CAPI TAL. IN THIS REGARD, THE AR HAS SUBMITTED THAT THE A.O. FAILED TO BRING ON RECORD A NY EVIDENCE, CONTRARY TO THE TRANSACTIONS OF SALE OF INVESTMENT IN SHARES, WHICH WILL SHOW THAT SALE PROCEEDS 6 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 CREDITED IN THE BOOKS, ARE UNEXPLAINED. IT HAS ALSO BEEN SUBMITTED BY THE AR THAT THE STATEMENT RECORDED OF VARIOUS PERSONS, WERE BALD / IRRELEVANT AND VAGUE IN NATURE AS THE ENTRY OPERATOR STATED THAT IT HAS ACQUIRED THE SAID COMPANY DURING THE YEAR 2001 AND USED TO INVESTMENT IN SHARES OF PAPER / JAMAKHA RCHI COMPANIES THROUGH CIRCULAR ROTATION OF FUNDS AND ULTIMATELY SOLD THIS COMPANY TO JINDAL GROUP AND HE NOWHERE STATED THAT INVESTMENT SOLD TO PAPER / JAMAKHARCHI COMPANIES. (V) IN THE APPELLATE PROCEEDINGS, APPELLANT HAS SU BMITTED THAT THE DOCUMENTS RELIED UPON BY THE A.O. IN THE SATISFACTION NOTE, A RE GENERAL DOCUMENTS PERTAINING TO AMALGAMATION OF 8 COMPANIES, INCLUDING THE APPELLAN T AND BALLOT PAPERS FOR EQUITY SHAREHOLDERS FOR TAKING APPROVAL FOR MERGER OF THES E 8 COMPANIES WITH M/S LUCKY HOLDINGS PRIVATE LIMITED. THEREFORE, THESE DOCUMEN TS WILL BE AVAILABLE WITH EVERY SHAREHOLDER, AS THE DECISION REGARDING AMALGAMATION HAS TO BE TAKEN AFTER APPROVAL FROM SHAREHOLDER AND SHRI BHAVESH JINDAL, IS THE SH AREHOLDERS IN M/S LUCKY HOLDINGS PRIVATE LIMITED AND THEREFORE, IT IS OBVIOUS THAT T HESE DOCUMENTS, WERE FOUND AT HIS RESIDENCE AT THE TIME OF SEARCH. (VI) IN THE APPELLATE PROCEEDINGS, BESIDES THE ABOV E SUBMISSIONS, THE APPELLANT HAS ALSO SUBMITTED THAT THE ORIGINAL RETURN OF INCOME W AS FILED ON 23.9.2009, DECLARING INCOME OF RS. 24,721/-. THEREFORE, AS PER AR, THE N OTICE U/S 143(2), SHOULD HAVE BEEN ISSUED UPTO 30.09.2010 FOR SCRUTINY ASSESSMENT, BUT NO SUCH NOTICE WAS ISSUED. THEREFORE, IT HAS BEEN SUBMITTED BY THE AR THAT THE ASSESSMENT IN THE CASE OF THE APPELLANT, WAS NOT ABATED AT THE TIME OF INITIATION OF SEARCH ON 14.11.2011 WHICH IS IN THE CASE OF THE APPELLANT DATE OF SEARCH IS DATE OF HANDING OVER OF THE DOCUMENTS ON 03.12.2013, FOR A.Y. 2009-10. (VII) IN THE APPELLATE PROCEEDINGS, THE AR HAS ALSO SUBMITTED THAT A.O. HAS MADE THE ADDITION U/S 68 OF THE ACT, FROM ALLEGED PROCEE DS FROM SALE OF INVESTMENTS, WITHOUT ANY INCRIMINATING DOCUMENTS, SINCE ASSESSMENT HAS B EEN COMPLETED U/S 153C/ 153A OF THE ACT AND ASSESSMENT WAS NOT ABATED AT THE TIME O F ISSUE OF NOTICE U/S 153C OF THE ACT. BASED ON THE ABOVE FACTS, IT WAS ALSO SUBMITTED BY THE APPELLANT THAT DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI I N THE CASE OF CIT V S. KABUL CHAWLA 2015 61 TAXMANN.COM 412(DEL), IS SQUARELY AP PLICABLE TO THE FACTS OF THE APPELLANT. FROM THE ABOVE, FOLLOWING FACTS EMERGED: THE ASSESSMENT WAS NOT ABATED AT THE TIME OF HANDIN G OVER OF THE DOCUMENTS ON 03.12.2013, THE DOCUMENTS ARE RELATING TO AMALGAMATION OF APPEL LANT COMPANY, AND NO INCRIMINATING DOCUMENTS WERE FOUND AT THE TIME O F SEARCH. FROM THE ABOVE FACTS, IT IS CLEAR THAT NO ASSESSMEN T WAS ABATED AT THE TIME OF INITIATION OF ACTION U/S 132 ON 14.11.2011 WHICH IS IN THE CASE OF THE APPELLANT DATE OF SEARCH IS DATE OF HANDING OVER OF THE DOCUMENTS ON 03.12.2013 AND ALSO, THE ADDITION MADE IN ASSESSMENT ORDER U/S 153C/153A OF THE ACT D ATED 31.3.2014, ARE NOT BASED ON ANY INCRIMINATING DOCUMENT. AS SUCH, FACTS OF THE A PPELLANT ARE SQUARELY COVERED BY THE RATIO LAID DOWN BY HON'BLE JURISDICTIONAL HIGH COURT OF DELHI, IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA). IT IS FURTHER SUBMITTED BY THE AR IN THE APPELLATE PROCEEDINGS THAT THE STATEMENTS RECORDED DURING SEARCH / SURVEY ACTION, THE SAME CANNOT BE CONSIDERED AS A DOCUMENT FOUND & SEIZED. FOR THIS ARGUMENT, THE A R HAS RELIED UPON THE RATIO LAID 7 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 DOWN IN THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. RAJ PAL BHATIA [2011], 333 ITR 315 (DELHI). IN VIEW OF THE ABOVE, I AGREE WITH THE ARGUMENTS OF THE APPELLANT AND THEREFORE, NO ADDITION CAN BE MADE, IN ABSENCE OF A NY INCRIMINATING DOCUMENT. 6. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE TH E ADDITION MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HON'BLE SUPR EME COURT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS 'TOTAL INCOME' AS USED IN SECTION 153A WOULD ONLY MEAN UNDISCLOSED INCOME DIS COVERED FROM SEIZED / INCRIMINATING MATERIAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ADOPTING A RESTRICTIVE AND PEDA NTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153A OF THE ACT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS 'TOTAL INCOME' AS USED IN SECTION 153A WOULD ONLY MEAN INCOME UNEARTHED DURIN G SEARCH WHEN THE DECISION OF THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT DATED 09.08.2014 HAS HELD THAT TOT AL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 6. THAT THE ORDER OF THE CIT(A) IS PERVERSE, ERRONE OUS AND IS NOT TENABLE ON FACTS AND IN LAW. 7. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF T HE APPEAL. 7. THE ASSESSEE IN THE CROSS OBJECTION HAS RAISED T HE FOLLOWING GROUND :- 1. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NO T APPRECIATING THAT THE INITIATION OF PROCEEDINGS UNDER SECTION 153C WAS NO T VALID INASMUCH AS NO BOOKS OF ACCOUNTS OR DOCUMENTS BELONGING TO THE APPELLANT AS ENVISAGED UNDER THAT SECTION WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH O N THE PERSON REFERRED TO IN SECTION 153A OF THE ACT. 8 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US BY BOTH SIDES. A PERUSAL OF THE ASSESSMENT ORDER PASSED U/S 153C R.W.S. 153A SHOWS THAT THE ASSESSIN G OFFICER IN THE ASSESSMENT ORDER HAS MADE ADDITION OF RS.11,62,00,000/- ON ACC OUNT OF UNEXPLAINED SALE OF INVESTMENT BY INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T. ACT. A PERUSAL OF THE SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER AT PAGE 2 OF THE ASSESSMENT ORDER WHICH HAS BEEN REPRODUCED, AT PARA 2 OF THIS ORDER, SHOWS THAT THE ADDITION MADE BY THE ASSESSING OFFICER IN THE I MPUGNED ORDER IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH. THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER IN THE INSTA NT CASE IS BASED ON POST- SEARCH ENQUIRY. THERE IS ALSO NO GROUND BY THE REV ENUE THAT ANY INCRIMINATING MATERIAL WAS FOUND OTHER THAN WHAT HAS BEEN MENTION ED IN THE SATISFACTION NOTE. UNDER THESE CIRCUMSTANCES, WE HAVE TO DECIDE AS TO WHETHER THE ORDER OF THE LD. CIT(A) IS JUSTIFIED OR NOT IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER IN ABSENCE OF ANY INCRIMINATING MATERIAL. 8.1 WE FIND IN THE INSTANT CASE THE ORIGINAL RETURN WAS FILED ON 23.09.2009 DECLARING TOTAL INCOME OF RS.24,721/-. THEREFORE, NOTICE U/S 143(2) SHOULD HAVE BEEN ISSUED UPTO 30.09.2010 FOR SCRUTINY ASSESSMENT . HOWEVER, NO SUCH NOTICE HAS BEEN ISSUED. FURTHER, THE DATE OF HANDING OVER THE DOCUMENTS BY THE 9 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 ASSESSING OFFICER OF THE SEARCHED PERSON TO THE ASS ESSING OFFICER OF THE ASSESSEE IN THE INSTANT CASE IS 03.12.2013 FOR ASSE SSMENT YEAR 2009-10. THEREFORE, THE ASSESSMENT WAS NOT ABATED. IN OTHER WORDS, IT HAS TO BE TREATED AS A COMPLETED ASSESSMENT. 8.2 THE HONBLE DELHI HIGH COURT IN THE CASE OF KAB UL CHAWLA (SUPRA) HAS HELD THAT THE COMPLETED ASSESSMENT CAN BE INTERFERE D WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT U/S 153A ONLY O N THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVE RED IN THE CASE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE NONE IN THE COURSE OF ORIGINAL ASSESSMENT. 9. THE HONBLE DELHI HIGH COURT IN THE CASE OF PR.C IT VS. SAMEER GUPTA VIDE ITA NO.118/2018 ORDER DATED 02.02.2018 FOLLOWI NG THE ABOVE DECISION HAS DISMISSED THE APPEAL FILED BY THE REVENUE ON THE GR OUND THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH, NO ADDITION CAN BE MADE. THE RELEVANT OBSERVATION OF THE HON'BLE HIGH COURT READS AS UNDER :- THE QUESTION OF LAW SOUGHT TO BE URGED BY THE REVE NUE IS WHETHER THE ITAT FELL INTO ERROR IN DELETING THE AMOUNT ADDED, I.E. RS5,62,61,726/- BY THE ASSESSING OFFICER PURSUANT TO A SEARCH UNDER SECTION 132 OF T HE INCOME TAX ACT, 1961. IN THIS CASE THE SEARCH TOOK PLACE IN THE PREMISES ON 03.10.2013. A NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE WHICH RE-AFFIRMED ITS EARLIER RETURNS. THE ASSESSING OFFICER COMPLETED THE SECTION 153A AS SESSMENT BY ADDING AMOUNTS UNDER SECTION 60A TO THE TUNE OF RS.5,62,61,726/- F OR A.Y. 2011-12. THE CIT(A) AND THE ITAT CONCURRENTLY GRANTED RELIEF TO THE ASSESSE E IN THE APPELLATE PROCEEDINGS HOLDING THAT NO FRESH INCRIMINATING MATERIAL WAS SE IZED WARRANTING THE ADDITIONS 10 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 DURING THE SEARCH. BOTH THE APPELLATE AUTHORITIES RELIED UPON THE JUDGMENT OF THIS COURT IN CIT VS. KABUL CHAWLA, 380 ITR 573. IN THESE CIRCUMSTANCES, THE COURT IS OF THE OPINION THAT NO QUESTION OF LAW ARISES AS THE RATIO IN KABUL CHAWLA (SUPRA) APPLIED . THE APPEAL IS, THEREFORE, DISMISSED. 10. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS . SINHGAD TECHNICAL EDUCATION SOCIETY REPORTED IN 397 ITR 344 HAS ALSO DISMISSED THE APPEAL FILED BY THE REVENUE ON THE GROUND THAT THE INCRIMINATING MATERIAL SEIZED MUST PERTAIN TO ASSESSMENT YEAR IN QUESTION. THE VARIOU S OTHER DECISIONS RELIED ON BY LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORT THE ORDER OF LD. CIT(A) THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH, ADDITION CANNOT BE MADE IN THE ORDER PASSED U/S 153A/153C WHEN THE ASSESSMENT WAS NOT ABATED AT THE TIME OF ISSUE OF NOTICE U/S 153C OF THE I.T. ACT. SINCE IN THE INSTANT CASE ADMITTEDLY, THE ADDITION WAS NOT BASED ON ANY INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE ADDITION HAS BE EN MADE ON THE BASIS OF POST- SEARCH ENQUIRY AND THE ASSESSMENT WAS NOT ABATED, T HEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) DELETING T HE ADDITION MADE BY THE ASSESSING OFFICER ON THIS LEGAL GROUND. THE VARIOU S DECISIONS RELIED ON BY THE LD. CIT-DR ARE DISTINGUISHABLE AND NOT APPLICABLE T O THE FACTS OF THE PRESENT CASE. THE GROUNDS RAISED BY THE REVENUE ARE THEREF ORE, DISMISSED. 11. SINCE THE APPEAL FILED BY THE REVENUE IS DISMIS SED, THE CROSS OBJECTION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. THEREFO RE, THE SAME IS DISMISSED. 11 ITA NO.5691/DEL/2016 C.O. NO.26/DEL/2018 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF MAY, 2018. SD/- SD/- (SUDHANSHU SRIVASTAVA) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30-05-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI