Smt. Heera Mani Agarwal, Kanpur V. ACIT central circle-VI, Kanpur

ITA 584/LKW/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5690 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-02-2014
• Assessment Year: misc
• Appeal Filed On: 04-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Assessee Lawyers: S K GARG SHRI P K KAPOOR
• Keywords: Search and seizure; Opportunity of being heard; Block assessment; Reason to believe
• Section: 153A; 147; 132; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.584 TO 588/LKW/2011 A.YRS.:01 - 02 TO 03 - 04, 05 - 06 & 06 - 07 SMT. HEERA MANI AGARWAL, 112/284, SWAROOP NAGAR, KANPUR. PAN:AANPA5148A VS. A.C.I.T., CENTRAL CIRCLE - VI, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI VIVEK MISHRA, CIT, D.R. DATE OF HEARING 06/02/2014 DATE OF PRONOUNCEMENT 2 8 /02/2014 O R D E R PER BENCH: ALL THESE APPEALS ARE FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST SEPARATE ORDERS OF LEARNED CIT(A) - I, KANPUR ALL DATED 18/08/2011 FOR ASSESSMENT YEARS 2001 - 2002 TO 2003 - 2004, 2005 - 2006 & 2006 - 2007. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE TECHNICAL ASPECT OF THE MATTER, WHICH IS RAISED BY THE ASSESSEE AS PER GROUND NO. 4 TO 7 IN ALL THESE YEARS. THESE GROUNDS ARE AS UNDER: 4. BECAUSE EXPLANATION (I) APPEARING BELOW SECTION 153A(2) OF THE ACT CLEARLY MADE SECTION 143 AS A WHOLE APPLICABLE TO THE PROCEEDINGS U/S 153A AND IN VIEW OF THE UNDISPUTED FACT THAT NO SUCH NOTIC E WAS ISSUED IN THE NAME OF THE APPELLANT, THE ASSESSMENT ORDER DATED 31/12/2008 IS VOID AB - INITIO. 2 5. BECAUSE IN VIEW OF THE APPLICABILITY OF ALL THE PROVISIONS OF THE ACT EXCEPTING PROVISIONS CONTAINED IN SECTION 153A, 153B AND 153C OF THE ACT, THE DELA Y IN FILING THE 'RETURN' IN COMPLIANCE WITH NOTICE ISSUED UNDER SECTION 153A, DID NOT GO TO MAKE THE 'RETURN' FILED BY THE 'APPELLANT', IN PURSUANCE OF NOTICE UNDER SECTION 153A AS 'NON - EST SO AS TO DEFEAT THE APPLICABILITY OF PROVISIONS OF SECTION 143(2) AND VIEW TAKEN BY THE W CIT(A)' IN THIS RESPECT IS WHOLLY ERRONEOUS. 6. BECAUSE OF THE PRESENCE OF ABOVE REFERRED EXPLANATION BELOW SECT ION 153A(2) MAKES THE PROVISION OF SECTION 143(2) AT PAR WITH THE PROCEEDINGS RELATED TO ASSESSMENT UNDER CHAPTER XIV - B AS WELL AS PROCEEDINGS UNDER SECTION 147 AND ACCORDINGLY THE FOLLOWING DECISIONS: (I) ASST.CIT VS. HOTEL BLUE MOON REPORTED IN (2010) 321 I TR 362 (SC). (II) ASST. CIT VS. RAJEEV SHARMA REPORTED IN (2011) 336 ITR 678 (ALLD) WERE FULLY APPLICABLE AND VIEW TO THE CONTRARY AS HAS BEEN TAKEN BY THE 'CIT(A)' IS WHOLLY ERRONEOUS. 7. BECAUSE IN VIEW OF THE DECLARATION OF LAW BY THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA), THE 'CIT(A)' HAS WRONGLY FELT PERSUADED BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO IN ITA NO.271/2011 AN D CONSEQUENTLY HIS DECISION ON THIS ISSUE IS VITIATED. 3. LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT IT IS CORRECT THAT A RECENT ORDER RENDERED BY LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF VIKRANT CHEMICO INDUSTRIES (P) LTD. VS. DY.CIT IN C.O.NO.01 TO 04/LKW/2014 IS AGAINST THE ASSESSEE BUT STILL HE WANTS TO FILE WRITTEN SUBMISSIONS AND THE SAME MAY BE TAKEN NOTE OF. THEREAFTER, LEARNED A.R. OF THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS, WHICH ARE REPRODUCED BELOW: THROUGH GROUND NOS. 4, 5, 6 & 7, THE ASSESSEE HAS CONTENDED THAT NO NOTICE UNDER SECTION 143(2) HAVING BEEN ISSUED BY THE ASSESSING OFFICER, AFTER THE ASSESSEE HAD FILED THE RETURN IN COMPLIANCE WITH NOTICE UNDER SECTION 153A, THE 3 ASSESSMENT ORDER DATED 31.12.2008 CAPTIONED AS ASSESSMENT UNDER SECTION 153A OF THE INCOME - TAX ACT, 1961 IS 'WITHOUT JURISDICTION AND LIABLE TO BE DECLARED AS NULL AND VOID'. 2. THE ASSESSEE IS AGGRIEVED FROM THE VIEW TAKEN BY THE CIT(A) TO THE EFFECT THAT NOTICE UNDER SECTION 143(2) IS NOT REQUIRED TO BE ISSU ED IN THE PROCEEDINGS UNDER SECTION 153A. IN HIS DECISION, ID. CIT(A) HAS PLACED RELIANCE ON A DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO, REPORTED IN (2011) 337 ITR 339 (DEL), RELEVANT PARAS OF THE APPELLATE ORDER ARE PA RAS 5.6 TO 5.7 WHICH ARE REPRODUCED HEREUNDER: - '5.6 FINALLY IN A RECENT DECISION OF THE HON. DELHI HIGH COURT IN THE CASE OF ASHOK CHADDA V/S. ITO (ITA NO. 271/2011) DECIDED ON 27 TH JULY, 2011, THE HON'BLE COURT HAS CATEGORICALLY HELD THAT IN THE PROCEEDINGS U/S 153A OF THE ACT, NOTICE U/S 143(2) WAS NOT MANDATORY WHEREIN IT WAS HELD 'THE WORDS 'SO FAR AS MAY BE' IN CLAUSE (A) SUB SECTION (I) OF SECTION 153 A COULD NOT BE INTERPRETED THAT THE ISSUE OF NOTICE UNDER SECTION 153A. THE USE OF THE WORDS, 'SO FAR AS MAY BE' CANNOT BE STRETCHED TO THE EXTENT OF MANDATORY ISSUE OF NOTICE UNDER SECTION 143(2). AS IS NOTED, A SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER CLAUSE (A) OF SUB - SEC TION (1) OF SECTION 153 A UPON THE PERSONS SEARCHED OR REQUISITIONED TO FILE RETURN. THAT BEING SO, NO FURTHER NOTICE UNDER SECTION 143(2) COULD BE CONTEMPLATED FOR ASSESSMENT UNDER SECTION 153A. 5.7 IN VIEW OF THE AFORESAID DISCUSSION AND THE DIRECT DECI SION OF THE HON DELHI HIGH COURT, I HOLD THAT UNDER THE GIVEN FACTS AND LEGAL POSITIONS, IT WAS NOT INCUMBENT UPON THE A.O. TO ISSUE NOTICE 143(2) AS (I) NO VALID RETURN HAD BEEN FILED AND (II) AS PER THE PROVISIONS OF SEC. 153A, THERE WAS NO SUCH REQUIREM ENT. THUS, THIS GROUND OF THE APPELLANT IS ALSO DISMISSED.' 3. FIRST OF ALL, IT IS SUBMITTED THAT 'RETURN' FILED BY THE ASSESSEE IN COMPLIANCE WITH NOTICE UNDER SECTION 153A, EVEN THOUGH BELATED, WAS A VALID 'RETURN' AND THE SAME HAD BEEN ACTED UPON ALSO, BY THE ASSESSING OFFICER. 4. WITH GREAT RESPECT AND ALL THE HUMILITY AT HER PART, THE APPELLANT FURTHER BEGS TO SUBMIT THAT IF THE DECISION IN THE CASE OF 4 ASHOK CHADDHA (SUPRA) IS READ IN A DISPASSIONATE MANNER, PARTICULARLY PARA 7 AND 11 THEREOF, WHICH ARE REPRODUCED HEREUNDER: - '7. ON THE OTHER HAND, LEARNED COUNSEL FOR THE REVENUE ARGUES THAT THE ASSESSMENT BEING UNDER S. 153A, THERE IS NO REQUIREMENT OF ISSUE OF NOTICE UNDER S. 143(2) OF THE ACT. HE SUBMITS THAT IN ANY CASE, THERE IS NO PRESCRI BED PROFORMA FOR ISSUING THE NOTICE. THE NOTICE IS USUALLY ISSUED IN THE PROFORMA MARKED AS 'ITNS - 33 IT IS A COMMUNICATION BY THE AO TO THE ASSESSEE GIVING HIM THE OPPORTUNITY AS REQUIRED UNDER S. 143(2). THEREFORE, ONCE THE ASSESSEE HAS BEEN PUT TO NOTI CE AND GIVEN OPPORTUNITY TO ATTEND THE OFFICE, THE REQUIREMENT OF S. 143(2) IS COMPLETE WHETHER NOTICE IS ISSUED IN PROFORMA 'ITNS - 33' OR IN ANY OTHER FORMAT. IN THE PRESENT CASE, THE ASSESSING OFFICER HAD COMMUNICATED HIS INTENTION TO SCRUTINIZE THE RETUR N BY WAY OF TWO LETTERS AND AFFORDED OPPORTUNITY TO THE ASSESSEE TO PRODUCE NECESSARY ACCOUNTS, DOCUMENTS OR EVIDENCE. THEREFORE, THE REQUIREMENT, IF ANY, OF SECTION 143(2) HAS BEEN SATISFIED'. XXXX XXXX XXXX '11. IT IS ALSO TO BE NOTED THAT S. 153A PROVIDES FOR THE PROCEDURE FOR ASSESSMENT IN CASE OF SEARCH OR REQUISITION SUB - SECTION (1) STARTS WITH NON - OBSTANTE CLAUSE STATING THAT IT WAS 'NOTWITHSTANDING' ANYTHING CONTAINED IN SS. 147, 148 AND 149, ETC. CLAUS E (A) THEREOF PROVIDES FOR ISSUANCE OF NOTICE TO THE PERSON SEARCHED UNDER S. 132 OR WHERE DOCUMENTS ETC. ARE REQUISITIONED UNDER S. 132(A), TO FURNISH A RETURN OF INCOME. THIS CLAUSE NOWHERE PRESCRIBES FOR ISSUANCE OF NOTICE UNDER S 143(2), LEARNED COUNSE L FOR THE ASSESSEE/APPELLANT SOUGHT TO CONTEND THAT THE WORDS, 'SO FAR AS MAY BE APPLICABLE ' MADE IT MANDATORY OR ISSUANCE OF NOTICE UNDER S. 143(2) SINCE THE RETURN FILED IN RESPONSE TO NOTICE UNDER S. 153A WAS TO BE TREATED AS ONE UNDER S. 139. LEARNED COUNSEL RELIES UPON R DALMIA VS. CIT [1999] 236ITR 480 (SC) WHEREIN THE QUESTION OF ISSUE OF NOTICE UNDER S. 143(2) WAS EXAMINED WITH REFERENCE TO S. 148 BY THE SUPREME COURT IN THE CONTEXT OFS. 147. THE APEX COURT HELD AS UNDER (PAGE 480) : 5 'AS TO THE AR GUMENT BASED UPON SS. 144A, 246 AND 263, WE DO NOT DOUBT THAT ASSESSMENTS UNDER S. 143 AND ASSESSMENTS AND REASSESSMENTS UNDER S.147 ARE DIFFERENT, BUT IN MAKING ASSESSMENT AND REASSESSMENTS UNDER S. 147 THE PROCEDURE LAID DOWN IN SECTIONS SUBSEQUENT TO S. 139, INCLUDING THAT LAID DOWN BY S. 144B, HAS TO BE FOLLOWED. IT WILL BE EVIDENT THAT SOME SPECIFIC PROVISIONS/ PRECEDENCES APPLICABLE TO THE PROCEEDINGS UNDER SECTION 153A HAD NOT BEEN PLACED BEFORE THEIR LORDSHIPS OF THE DELHI HIGH COURT. AS A RESULT SOME IMPORTANT AND RELEVANT PROVISIONS AND PRECEDENCES GOT 'LEFT OUT OF CONSIDERATION'. SUCH 'LEFT OUT PROVISIONS AND PRECEDENCES' (FROM CONSIDERATION) ARE AS UNDER: - (A) SUB - CLAUSE (A) OF SUB - SECTION (1) OF SECTION 153A SPECIFICALLY SAYS THAT '...THE PROVISI ONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139;' (B) THE PHRASEOLOGY 'SO FAR AS MAY BE' AS HAS BEEN USED IN THE SAID SUB - CLAUSE ALREADY STOOD JUDICIALLY INTERPRETED TO BE OF MANDATORY NATURE BY THE HON'BLE APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON REPORTED IN (2010) 321 ITR 362; RELEVANT PASSAGE BEING REPRODUCED HEREUNDER: - THE CASE OF THE REVENUE IS THAT THE EXPRESSION 'SO FAR AS MAY BE APPLY' INDICATES THAT IT IS NOT EXPECTED TO FOLLOW THE PROVISIONS OF SECTION 142, SUB - SECTIONS (2) AND (3) OF SECTION 143 STRICTLY FOR THE PURPOSE OF BLOCK ASSESSMENTS. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE REVENUE, SINCE WE DO NOT SEE ANY REASON TO R ESTRICT THE SCOPE AND MEANING OF THE EXPRESSION 'SO FAR AS MAY BE APPLY'. IN OUR VIEW, WHERE THE ASSESSING OFFICER IN REPUDIATION OF THE RETURN FILED UNDER SECTION 158BC(A) PROCEEDS TO MAKE AN ENQUIRY, HE HAS NECESSARILY TO FOLLOW THE PROVISIONS OF SECTION 142, SUB - SECTIONS (2) AND (3) OF SECTION 143.' 6 (370) 5. ON A DUE CONSIDERATION OF THE 'LEFT OUT PROVISIONS AND PRECEDENCES', AS AFORESAID, THE LEGAL POSITION THAT SHALL EMERGE IS THAT (A) THE 'RETURN' FILED IN PURSUANCE OF NOTICE UNDER SECTION 153A, HAS THE STATUS OF 'RETURN' FILED UNDER SECTION 139; AND (B) IN ORDER TO MAKE ASSESSMENT WITH REFERENCE TO SUCH A 'RETURN' THE ASSESSING OFFICER HAS TO NECESSARILY FOLLOW ALL SUCH PROVISIONS OF LAW AS ARE REQUIRED TO BE FOLLOWED FOR MAKING ASSESSMENT ON TH E BASIS OF 'RETURN' FILED UNDER SECTION 139. AS THE 'RETURN' FILED UNDER SECTION 139 CANNOT BE REPUDIATED WITHOUT ISSUING NOTICE UNDER SECTION 143(2) AND SERVICE THEREOF ON THE ASSESSEE, LIKEWISE RETURN FILED UNDER SECTION 153A CANNOT BE REPUDIATED WITHOUT ISSUING AND SERVICE OF NOTICE UNDER SECTION 143(2). 6. IT IS ALSO SUBMITTED FOR FURTHER CONSIDERATION OF YOUR HONOURS THAT THE PROVISION CONTAINED IN SECTION 153A(L)(A) AS REFERRED TO IN PARA 3 ABOVE, TO THE EFFECT THAT THE 'RETURN' FILED IN COMP LIANCE TO THE NOTICE UNDER SECTION 153A IS LIKE 'RETURN' FURNISHED UNDER SECTION 139 OF THE ACT, IS IDENTICAL TO THE PROVISION AS CONTAINED IN SECTION 148(1) OF THE ACT WHICH READS AS UNDER : - 'ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. 148 (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCO ME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139.' (EMPHASIS ADDED) 7 7. WHILE INTERPRETING THE APPLICABILITY OF PROVISION OF SECTION 143(2) IN RELATION TO THE 'RETURN' FILED IN COMPLIANCE OF NOTICE UNDER SECTION 148(1), THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJEEV SHARMA (336 ITR 678) HAS HELD THAT ASSESSMENT [ON THE RETURN FILED IN COMPLIANCE WITH NOTICE UNDER SECTION 148] MADE WITHOUT ISSUING, AND SERVING ON THE ASSESSEE NOTICE UNDER SECTION 143(2) IS VOID - ABINITO. ON THIS ANALOGY, THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJEEV SHARMA IS IPSO FACTO APPLICABLE TO THE ASSESSMENT MADE UNDER SECTION 153A ALSO. THUS, THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJEEV SHARMA (SUPRA) IS FULLY APPLICABLE ON THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT. 8. INDEPENDENT OF THE AFORESAID, FOR THE REASON THAT THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJEEV SHARMA (SUPRA) SQUARELY COVERS THE SITUATION IN THE INSTANT CASE AND THE SAID DECISION IS A BINDING PRECEDENCE, THE SAME HAS TO BE FOLLOWED AND AP PLIED AS A MATTER OF COURSE AND THE ASSESSMENT ORDER DATED 3112.2008 IS LIABLE TO BE DECLARED AS NULL AND VOID. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND ALSO SUBMITTED THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY THIS TRIBUNAL DECISION RENDERED IN THE CASE OF VIKRANT CHEMICO INDUSTRIES (P) LTD. VS. DY.CIT (SUPRA). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT IN THE WRITTEN SUBMISSIONS OF THE ASSESSEE, SAME CONTENTIONS ARE RAISED, WHICH WERE RAISED BY LEARNED A.R. OF THE ASSESSEE IN THE CASE OF VIKRANT CHEMICO INDUSTRIES (P) LTD. VS. DY.CIT (SUPRA) AN D AFTER CONSIDERING THESE SUBMISSIONS, THE ISSUE WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE. THE RELEVANT PORTION OF THIS TRIBUNAL ORDER, AS PER PARA 5.1 TO 5.4 IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 5.1 FROM THE ORDER OF LEARNED CI T(A), WE FIND THAT THE LEARNED CIT(A) HAS HELD THAT THE ASSESSMENT FRAMED BY THE 8 ASSESSING OFFICER U/S 153A OF THE ACT IS INVALID BECAUSE NO NOTICE WAS ISSUED BY THE ASSESSING OFFICER U/S 143(2). THEREAFTER, THERE IS A DECISION OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF ASHOK CHADDHA VS. INCOME TAX OFFICER [2011] 063 DTR 0353 ON WHICH RELIANCE HAS BEEN PLACED BY THE REVENUE IN WRITTEN SUBMISSIONS REPRODUCED ABOVE. IN THIS JUDGMENT, IT WAS HELD BY HON'BLE DELHI HIGH COURT THAT SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER CLAUSE (A) OF SUB SECTION (1) OF SECTION 153A CALLING UPON THE PERSONS SEARCHED OR REQUISITIONED TO FILE RETURN AND THAT BEING SO, NO FURTHER NOTICE UNDER SECTION 143(2) COULD BE CONTEMPLATED FOR ASSESSMENT UNDER SECTION 153A. AS PER THIS JUDGMENT OF HON'BLE HIGH COURT, THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A WITHOUT ISSUING NOTICE U/S 143(2) IS NOT INVALID AS HAS BEEN HELD BY LEARNED CIT(A). NOW WE CONSIDER THE APPLICABILITY OF TWO JUDGMENTS CITED BY LEARNED A. R. OF THE ASSESSEE. 5.2 THE FIRST JUDGMENT IS THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS RAJEEV SHARMA [2011] 336 ITR 678 (ALL). WE FIND THAT THIS JUDGMENT IS IN RESPECT OF ASSESSMENT COMPLETED B Y THE ASSESSING OFFICER U/S 148 OF THE ACT AND NOT U/S 153A WHEREAS THE JUDGMENT CITED BY LEARNED D.R. OF THE REVENUE OF HON'BLE DELHI HIGH COURT IS IN RESPECT OF ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A. THEREFORE, IN THE PRESENT CASE, THIS JU DGMENT IS APPLICABLE AND NOT THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT. 5.3 THE SECOND JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE BEING THE JUDGMENT OF HON'BLE APEX COURT WAS RENDERED IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS HOTEL BLU E MOON [2010] 321 ITR 362 (SC). IN THAT CASE, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S 158BC AND NOT U/S 153A OF THE ACT AND, THEREFORE, IN THE PRESENT CASE, THIS JUDGMENT IS ALSO NOT APPLICABLE. 5.4 AS PER THE ABOVE DISCUSSION, WE HAVE SEE N THAT BOTH THE JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE ARE NOT APPLICABLE WHEREAS AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED D.R. OF THE REVENUE, THE ORDER OF LEARNED CIT(A) IS NOT SUSTAINABLE. WE, THEREFORE, SET ASIDE THE O RDER OF LEARNED CIT(A) IN ALL THE FOUR YEARS. BUT SINCE THE ISSUE WAS NOT DECIDED BY LEARNED CIT(A) ON MERIT, WE RESTORE THE ISSUE TO THE FILE OF LEARNED CIT(A) FOR HIS DECISION ON MERIT. THE LEARNED 9 CIT(A) SHOULD PASS NECESSARY ORDER AS PER LAW ON MERIT OF VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. THESE GROUNDS, BRING GROUND NO. 4, 5,6 & 7 ARE REJECTED. 7. THE REMAINING GROUNDS, BEING GROUND NO. 1, 2, 3, 8 & 9 ARE ON THE MERIT AND THESE GROUNDS ARE AS UNDER: 1. BECAUSE THE LOCKER NO.12 WITH CANARA BANK, SWAROOP NAGAR, KANPUR HAD BEEN SUBJECTED TO PROHIBITORY ORDER UNDER SECTION 132(3) AS HAD BEEN SERVED ON THE BANK IN PURSUANCE OF WARRANT OF AUTHORIZATION ISSUED BY DIRECTOR OF INCOME TAX (INV.), KANPUR IN THE NAM E OF 'GRS JEWELLERS NAVEEN AGARWAL' AND MERELY BECAUSE, TO FACILITATE OPERATION OF THE SAID LOCKER, THE WARRANT OF AUTHORIZATION HAD BEEN ISSUED BY JT. DIRECTOR OF INCOME TAX (INV.), KANPUR DATED 17.10.2006 (AS PER THE INFORMATION GATHERED FROM THE PANCHNA MA PREPARED BY THE AUTHORITIES BELOW) IT COULD NOT HAVE BEEN SAID/HELD THAT THE 'APPELLANT' WAS SUBJECTED TO SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) AS ENVISAGED IN SECTION 153A OF THE ACT AND THE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN HOLDING TH AT (I) 'IT IS AS CLEAR AS DAY LIGHT THAT INDEED A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT' WAS UNDERTAKEN IN THE NAME OF THE 'APPELLANT'; AND (II) 'ACTION U/S 153A OF THE INCOME TAX ACT 1961' WAS VALIDLY INITIATED . 2. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE JT. DIRECTOR OF INCOME TAX (INV.), KANPUR CANNOT BE SAID TO BE IN POSSESSION OF ANY MATERIAL AND INFORMATION WHICH COULD LEAD TO THE FORMATION OF REQUISITE 'REASON TO BELIEVE' SO AS TO ISSUE A WARRANT OF AUTHORIZATION DATED 1 7.10.2006 TO SEARCH LOCKER NO.12 WITH CANARA BANK AND CONSEQUENTLY THERE WAS NO VALID SEARCH UNDERTAKEN UNDER SECTION 132(1) AND INITIATION OF PROCEEDINGS UNDER SECTION 153A WERE NOT VALID. 10 3. BECAUSE IN ANY CASE THERE BEING NO CORRESPONDING AMENDMENT IN RULE 112 OF INCOME TAX RULES 1962 AND THE FORMS PRESCRIBED THEREUNDER, SEARCH AND SEIZURE ACTION INITIATED ON THE BASIS OF AUTHORIZATION ISSUED BY THE JT. DIRECTOR OF INCOME TAX (INV.), KANPUR AND THE PROCEEDINGS AS A WHOLE ARE VITIATED. 8. BECAUSE IN ANY CASE AND WITHOUT PREJUDICE TO THE CONTENTION RAISED IN THE FOREGOING GROUNDS THERE BEING NO UNDISCLOSED INCOME HAVING BEEN FOUND AS A RESULT OF SEARCH AND SEIZURE ACTION (VALIDITY OF WHICH IS ALREADY IN DISPUTE), THE ASSESSMENT THAT HAD BEEN MADE EARLIER (WITH REFERENCE TO THE 'RETURN' FILED UNDER SECTION 139) CANNOT BE SAID TO HAVE ABATED AND THE ASSESSMENT ORDER DATED 31.12.2008 AND THE ADDITION AS STOOD COMPRISED THEREIN ARE VITIATED IN LAW. 9. BECAUSE DEPOSITS IN BANK ACCOUNT STOOD DULY DISCLOSED IN THE 'RETURN' FILED ORIGINALLY UNDER SECTION 139 READ WITH THE DOCUMENTS ACCOMPANYING THE SAME AND THERE BEING NO MATERIAL FOUND DURING THE COURSE OF ALLEGED SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) WHICH COULD GO TO IMPINGE UPON THE GENU INENESS OF THE SAID DEPOSITS, THE ADDITION OF SUMS AGGREGATING RS.59,0007 - IN THE BANK ACCOUNT OF THE 'APPELLANT' COULD NOT HAVE BEEN MADE/UPHELD BY THE AUTHORITIES BELOW. 8. IN OTHER YEARS , THE GROUNDS ARE SIMILAR EXCEPT DIFFERENCE IN AMOUNTS AND HENCE, THE SAME ARE NOT REPRODUCED FOR THE SAKE OF BREVITY. REGARDING THE MERIT OF THESE ADDITIONS, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE LEARNED CIT(A) HAS DECIDED THE ISSUE ON MERIT BY CRYPTIC ORDER AS PER PARA 6 IN ASSESSMENT YEAR 2 001 - 2002 AND IN SIMILAR MANNER IN THE REMAINING YEARS AND THEREFORE, IF THE ASSESSEE DOES NOT SUCCEED ON THE TECHNICAL ASPECT THEN THE ISSUE ON MERIT SHOULD BE RESTORED TO THE FILE OF CIT(A) FOR FRESH DECISION BY PASSING A SPEAKING AND REASONED ORDER. 9. THE LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND NO FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE THAT THE ISSUE ON MERIT HAS BEEN DECIDED BY LEARNED CIT(A) I N A CRYPTIC MANNER AND FOR THE SAKE OF READY REFERENCE, WE REPRODUCE PARA 6 OF THE ORDER OF LEARNED CIT(A) AS PER WHICH HE HAS DECIDED THE 11 ISSUE ON MERIT. THE SAME IS REPRODUCED FROM THE ORDER OF LEARNED CIT ( A) F O R THE ASSESSMENT YEAR 2001 - 2002, WHICH RE ADS AS UNDER: 6. AS REGARDS MERITS OF THE CASE, THE AO HAD ASKED THE ASSESSEE VIDE HIS NOTICE DATED 5.12.2008 TO FURNISH THE DETAILS AND SOURCE OF ALL THE DEPOSITS IN HER BANK ACCOUNT. SINCE THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF THE TWO CAS H ENTRIES IN HER BANK ACCOUNT, THE AO ADDED THESE AMOUNTS (AFTER GIVING CREDIT OF RS.30,000 / - WHICH WAS SURRENDERED BY THE ASSESSEE ON HER OWN) AS UNEXPLAINED DEPOSITS. BEFORE ME ALSO THE APPELLANT HAS NOT FURNISHED ANY VALID EXPLANATION WITH REGARD TO SUC H CASH DEPOSITS IN HER BANK ACCOUNT. ACCORDINGLY, THE ADDITION MADE IS CONFIRMED. 11. WE FIND THAT A CLEAR FINDING IS GIVEN BY LEARNED CIT ( A) THAT THE ASSESSEE WAS NOT ABLE TO EXPLAIN BEFORE THE A.O. THE SOURCE OF THE TWO CASH ENTRIES IN HER BANK ACCOUNT, THE AO ADDED THESE AMOUNTS (AFTER GIVING CREDIT OF RS.30,000/ - WHICH WAS SURRENDERED BY THE ASSESSEE ON HER OWN) AS UNEXPLAINED DEPOSITS. HE HAS ALSO GIVEN A FINDING THAT BEFORE HIM ALSO, THE ASSESSEE HAS NOT FURNISHED ANY VALID EXPLANATION WITH R EGARD TO SUCH CASH DEPOSITS IN HER BANK ACCOUNT. BEFORE US ALSO, THE ASSESSEE HAS NOT FURNISHED ANY VALID EXPLANATION WITH REGARD TO SUCH CASH DEPOSITS IN HER BANK ACCOUNT. HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT (A) ON ME RIT ALSO. IN THE REMAINING YEARS ALSO, THE ISSUE ON MERIT WAS DECIDED BY THE LEARNED CIT (A) AGAINST THE ASSESSEE ON SIMILAR BASIS WITH SIMILAR FINDINGS AND THER SAME COULD NOT BE CONTROVERTED BY THE LEARNED AR OF THE ASSESSEE. HENCE, IN ALL YEARS, THE ISS UE ON MERIT IS ALSO DECIDED AGAINST THE ASSESSEE. 12. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE STAND DISMISSED . SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 8 / 02 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR