M/S GORBANDH MARBLES PVT. LTD., JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR

ITA 605/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1797 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VRINDER MEHTA
• Keywords: Search and seizure; Question of law; Block assessment; Documents seized
• Section: 143(3); 153A; 147; 68; 6; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, 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. 605/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 M/S GORBANDH MARBLES PVT. LTD. 312, 3 RD FLOOR, GANPATI PLAZA, JAIPUR. CUKE VS. DCIT. CENTRAL CIRCLE- 3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCG1317N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VRINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/12/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 09.05.2017 OF CIT (A), JAIPUR FOR THE A.Y. 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ASSESSME NT COMPLETED U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 WHEN NO INCRIMINATING PAPER WHATSOEVER WAS FOUND AS A RESUL T OF SEARCH PERTAINING TO THE YEAR UNDER APPEAL, AND THE ADDITI ONS WERE MADE BY LD. AO WITHOUT REFERRING TO ANY SINGLE MATERIAL FOUND DURING ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 2 SEARCH, THUS THE CONSEQUENT ORDER PASSED DESERVES T O BE QUASHED. 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION S MADE TO THE INCOME WHICH ALREADY STOOD ASSESSED U/S 143(1)(A) O F THE INCOME TAX ACT, 1961 AND THE TIME LIMIT TO ISSUE NO TICE U/S 143(2) STOOD EXPIRED. THUS, THE ORDER PASSED WITHOU T REFERRING TO A SINGLE PAPER/INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH, WHEN NO ASSESSMENT PROCEEDING WAS PENDING A S ON THE DATE OF SURVEY, DESERVES TO BE HELD BAD IN LAW AND THE CONSEQUENT ADDITIONS DESERVE TO BE DELETED. 2. THE ASSESSEE IS A COMPANY AND ENGAGED IN THE BUS INESS OF MANUFACTURING AND TRADING OF MARBLE BLOCKS. THE ASS ESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 24.09.2010 DECLARING A TOTAL INCOME OF RS. 57,09,210 AND AGRIC ULTURAL INCOME OF RS. 1,84,969/-. THE RETURN OF INCOME WAS PROCESSED U/S 143(1). SUBSEQUENTLY A SEARCH WAS CONDUCTED ON 17.07.2013 I N CASE OF MRS GROUP, JAIPUR TO WHICH THE ASSESSEE BELONGS. ACCORD INGLY, THE AO ISSUED NOTICE U/S 153A AND IN RESPONSE THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING THE SAME INCOME AS DECLARED IN THE ORIGINAL RETURN. WHILE COMPLETING THE ASSESSMENT U/S 143(3) R.W.S. 1 53A THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS. 26,183/- ONLY O N ACCOUNT OF EMPLOYEES CONTRIBUTION TO ESI AND PF. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) AND RAISED T HE OBJECTION THAT ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 3 WHEN NO INCRIMINATING DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATI ON THEN, NO ADDITION CAN BE MADE IN RESPECT OF THE EMPLOYEES CONTRIBUTIO N TO ESI AND PF. THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONFORMED THE ADDITION MADE BY THE AO. 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS NOT PENDI NG ASSESSMENT ON THE DATE OF SEARCH ON 17.03.2013 AS THE TIME PERIOD FOR ISSUING THE NOTICE U/S 143(2) EXPIRED ON 30.09.2011. THEREFORE, THIS I S NOT A CASE OF ABETMENT OF ASSESSMENT BUT IT IS REASSESSMENT UNDER SECTION 153A R.W.S. 143(3) AND THEREFORE, WHEN THERE IS NO INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELEVANT TO THE A SSESSMENT YEAR UNDER CONSIDERATION THEN, THE ASSESSING OFFICER CAN NOT MAKE ANY ADDITION IN RESPECT OF THE ISSUE WHICH WAS SUBJECT MATTER OF THE ORIGINAL RETURN OF INCOME AND ASSESSMENT. HE HAS FURTHER SU BMITTED THAT THE ASSESSING OFFICER HAS COMMITTED A SERIOUS ERROR BEC AUSE THE ADDITION MADE BY THE AO IS NOT BASED ON SEIZED MATERIAL. ON THE CONTRARY, THE ORDER IS CLEARLY IN THE NATURE OF REGULAR ASSESSMEN T AND THEREFORE, COULD NOT HAVE BEEN MADE UNDER THE GARB OF SECTION 153A O F THE ACT. THE ACTION OF THE AO IS CONTRARY TO THE LAW AS HELD BY THE HONBLE HIGH ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 4 COURTS INCLUDING THE JURISDICTION HIGH COURT IN THE SERIES OF DECISIONS. HE HAS FURTHER CONTENDED THAT IT IS WELL SETTLED LAW O N THE POINT THAT THE ASSESSING OFFICER CANNOT DISTURB A COMPLETED ASSESS MENT WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH OR REQUISITION OF DOCUMENT AND HENCE, IT IS NOT OPEN TO THE ASSESS ING OFFICER TO MAKE ANY ADDITION WHICH IS NOT BASED ON THE INCRIMINATIN G DOCUMENT FOUND DURING THE COURSE OF SEARCH. THE LD. AR HAS RELIED UPON THE FOLLOWING DECISIONS:- JAI STEEL INDIA V. ACIT 259 CTR 281 ( RAJ. H.C.) CIT VS. KABUL CHAWLA 380 ITR 573 (DEL. H.C.) PR. CIT VS. MEETA GUTGUTIA 395 ITR 526 (DEL. H.C.) HENCE, THE LD. AR HAS PLEADED THAT IN VIEW OF THE B INDING PRECEDENT THE AO WAS NOT HAVING ANY JURISDICTION TO MAKE ASSESSME NT U/S 153A WITHOUT REFERRING TO ANY INCRIMINATING DOCUMENT FOU ND OR SEIZED DURING COURSE OF SEARCH. 4. ON THE OTHER HAND, LD. DR HAS RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ONCE THE ACTIO N U/S 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE THE ASS ESSING OFFICER SHALL HAVE NO OPTION BUT TO ASSESSEE OR REASSEE THE INCOM E OF THE ASSESSEE ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 5 U/S 153A FOR 6 YEARS IMMEDIATELY PRECEDING ASSESSME NT YEARS RELEVANT THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR R EQUISITION MADE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE FILED ITS RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION ON 24.09.2010 AND THEREFORE, UN DISPUTEDLY THE TIME LIMIT FOR ISSUING THE NOTICE U/S 143(2) ON THE RETU RN OF INCOME FILED U/S 139(1) EXPIRED ON 30.09.2011. A SEARCH IN THE CASE OF THE ASSESSEE WAS CONDUCTED ON 17.07.2013 AND AS ON THE DATE OF SEARC H THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS NOT PENDING. T HUS, IT IS CLEAR THAT THE NOTICE ISSUED BY THE AO U/S 153A CONSEQUENT TO THE SEARCH CARRIED OUT U/S 132 IS FOR REASSESSMENT OF INCOME OF THE AS SESSEE. WE FURTHER NOTE THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSING OFFICER HAS ACCEPTED THE INCOME DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME EXCEPT A DISALLOWANCE OF RS. 26,183/- ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO ESI AND PF. THE ENTIRE AS SESSMENT ORDER IS SILENT ABOUT ANY OF THE INCRIMINATING DOCUMENT FOUN D OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION AND THEREFO RE, IT IS CLEAR THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IS NOT BASED ON ANY DOCUMENT FOUND OR SEIZED DURING THE COURSE OF SEARCH OR REQU ISITION MADE. THIS ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 6 FACT HAS NOT BEEN DISPUTED BY THE REVENUE THAT THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION U/S 153A R.W.S. 143(3) IS NOT BASED ON ANY INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF S EARCH. THIS ISSUE HAS BEEN CONSIDERED IN A SERIES OF DECISIONS OF THE HONBLE HIGH COURTS AS RELIED UPON BY THE ASSESSEE. IN THE LATEST DECIS ION IN CASE OF PR. CIT VS. MEETA GUTGUTIA (SUPRA) THE HONBLE DELHI HIGH C OURT HAS AGAIN CONSIDERED AND ANALYZED THE RELEVANT PROVISIONS OF THE ACT AS WELL ALL THE DECISIONS ON THIS POINT IN PARA 57 TO 72 AS UND ER:- 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 B OTH IN ANIL KUMAR BHATIA (SUPRA) AND CHETAN DAS LACHMAN DAS (SU PRA). INCIDENTALLY, BOTH THESE DECISIONS WERE DISCUSSED T HREADBARE IN THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS ANIL KUMAR BHATIA (SUPRA) WAS CONCERNED, THE COURT IN PARAGRAP H 24 OF THAT DECISION NOTED THAT 'WE ARE NOT CONCERNED WITH A CA SE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE THEREFORE EXPRESS NO OPI NION 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 OBSERVED: '11. SECTION 153A (1) (B) PROVIDES FOR THE ASSESSME NT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSM ENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO REPEAT, THE RE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD BE STRICTLY M ADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST-SEARCH ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 7 MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSIN G OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER , DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' 58. IN KABUL CHAWLA (SUPRA), THE COURT DISCUSSED THE D ECISION IN FILATEX INDIA LTD. (SUPRA) AS WELL AS THE ABOVE TWO DECISIONS AND OBSERVED AS 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 BO TH THE SAID CASES THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH , WHEREAS IN THE PRESENT CASE THERE ADMITTEDLY WAS NONE. SECONDL Y, IT IS PLAIN FROM A CAREFUL READING OF THE SAID TWO . DECISIONS THAT THEY DO NOT HOLD THAT ADDITIONS CAN BE VALIDLY MADE TO INCOME F ORMING THE SUBJECT MATTER OF COMPLETED ASSESSMENTS PRIOR TO TH E SEARCH EVEN IF NO INCRIMINATING 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 PAPE R MILLS P. LTD.), THIS COURT DECLINED TO FRAME A QUESTION OF L AW IN A CASE WHERE, IN THE ABSENCE 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 153A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOG US SHARE CAPITAL GAIN. THE ORDER OF THE CIT (A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH.' 59. IN KABUL CHAWLA (SUPRA), THE COURT REFERRED TO THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) V. AS STT. 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: ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 8 '33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JA I STEEL (INDIA), JODHPUR V. ACIT (SUPRA) INVOLVED A CASE WHERE CERTA IN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS THAT HAD NOT BEEN PROD UCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COU RSE OF SEARCH. IT WAS HELD WHERE UNDISCLOSED INCOME OR UNDISCLOSED PR OPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE TOT AL INCOME UNDER SECTION 153A OF THE ACT. THE COURT THEN EXPLAINED A S 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 REQUISI TION 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 ORIGINAL 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 B ASIS OF INCRIMINATING MATERIAL; AND (C ) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSM ENT OR REASSESSMENT CAN BE MADE.' 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FRE E TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHILE MAK ING ASSESSMENT UNDER SECTION 153A OF THE ACT WAS SPECIFICALLY REJE CTED BY THE COURT ON THE GROUND THAT IT WAS 'NOT BORNE OUT FROM THE S CHEME OF THE SAID PROVISION' WHICH WAS IN THE CONTEXT OF SEARCH AND/OR REQUISITION. THE COURT ALSO EXPLAINED THE PURPORT O F THE WORDS 'ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT M ORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER: ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 9 '26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVIS ION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE W ORDS 'ASSESS' OR 'REASSESS'-HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISI ON WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS B EEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT A BATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SE ARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPOR T THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL F OUND 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. CONTINE NTAL 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 1 53A AND 153C OF THE ACT. THE LEGAL POSITION WAS THEREAFTER SUMMA RIZED 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 EXPLA INED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT E MERGES 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 PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR S IX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 10 WHICH THE SEARCH TAKES PLACE. II. ASSESSMENT S AND REASSESSMENTS PENDING ON THE DATE OF THE SEAR CH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAV E 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 RELE VANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE. AFOREMENTIONED SIX YEARS IN SEPARAT E ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS TH ERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESP ECT 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 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 AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY 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 ASSESSM ENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECT ION 153 A IS RELAT ABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON T HE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESS MENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UND E R SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 11 SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE R ECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON T HE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE CO URSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME O R PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT P R ODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF OR IGINAL 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 CARRIED O UT ON 7TH OCTOBER, 2009 AND AN ASSESSMENT CAME TO BE FRAMED U NDER SECTION 143(3) READ WITH SECTION 153A(1)(B) IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE OF RS. 14.5 CRORES AGAINST D ECLARED INCOME OF RS. 3.44 CRORES. THE ITAT DELETED THE ADDITIONS ON THE GROUND THAT IT WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH IN RESPECT OF AYS UNDER CONSID ERATION I.E., AY 2006-07. THE GUJARAT HIGH COURT REFERRED TO THE DEC ISION IN KABUL CHAWLA(SUPRA), OF THE RAJASTHAN HIGH COURT IN JAI S TEEL (INDIA) (SUPRA) AND ONE EARLIER DECISION OF THE GUJ ARAT HIGH COURT ITSELF. IT EXPLAINED IN PARA 15 AND 16 AS UNDER: '15. ON A PLAIN READING OF SECTION 153A OF THE ACT, IT IS EVIDENT THAT THE TRIGGER POINT FOR EXERCISE OF POWERS THEREUNDER IS A SEARCH UNDER SECTION 132 OR A REQUISITION UNDER SECTION 13 2A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 153 A OF THE ACT TO THE PERSON, REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 12 YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON IS MADE AND ASSESS OR REASSESS THE SAME. SINCE THE ASSESSMENT U NDER SECTION 153A OF THE ACT IS LINKED WITH SEARCH AND REQUISITI ON UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS EVIDENT THAT THE OBJ ECT 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 ASSESSMENT 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 FO R THE ASSESSMENT YEAR, WHICH IS CLEAR FROM THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS. THE SECOND PROVISO MAKES THE INTE NTION OF THE LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSM ENT OR REASSESSMENT, IF ANY, RELATING TO THE SIX ASSESSMEN T YEARS REFERRED TO IN THE SUB-SECTION PENDING ON THE DATE OF INITIA TION OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE. SUB-SECTION (2) OF SECTION 153 A OF THE ACT PROVIDES THAT IF ANY PROCEEDING OR ANY ORDER OF ASS ESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR ANY OTHER LEGAL PROVISION, THEN THE ASSESSMENT OR R EASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAD ABATED UN DER THE SECOND PROVISO WOULD STAND REVIVED. THE PROVISO THERETO SA YS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT IF SUCH ORDER OF ANNULMENT IS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR REASSE SSMENT 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. SIMILA RLY, SUB-SECTION (2) PROVIDES FOR REVIVAL OF ANY ASSESSMENT OR REASS ESSMENT WHICH STOOD ABATED, IF ANY PROCEEDING OR ANY ORDER OF ASS ESSMENT OR REASSESSMENT MADE UNDER SECTION 153A OF THE ACT IS ANNULLED IN APPEAL OR ANY OTHER PROCEEDING. 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN C ASE OF SEARCH OR REQUISITION'. IT IS 'WELL SETTLED AS HELD BY THE SUPREME COURT IN A ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 13 CATENA OF DECISIONS THAT THE HEADING OR THE SECTION CAN BE REGARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE POR TION 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 INTEN TION OF THE LEGISLATURE IS CLEAR, VIZ., TO PROVIDE FOR ASSESSME NT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF THE PROVI SION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOE S WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEA RCH OR REQUISITION, IN OTHER WORDS, THE ASSESSMENT SHOULD CONNECTED WITH SOMETHING ROUND DURING THE SEARCH OR REQUISITION VI Z., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED INCOME. THUS, WH ILE IN VIEW OF THE MANDATE OF SUB-SECTION (1) OF SECTION 153A OF T HE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISITION, THE AS SESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH R ETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR R EQUISITION IS MADE, ANY ADDITION' OR DISALLOWANCE CAN BE MADE ONL Y ON THE BASIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISIT ION, IN CASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJ ASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) V. ASST. CIT (SUPR A), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED, IN CASE WHE RE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS DETERMI NING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME D ECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQU ISITION. IN CASE WHERE A PENDING REASSESSMENT UNDER SECTION 147 OF T HE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AND AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESS ING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS W ELL AS UNDER SECTION 153A OF THE ACT. ** ** ** ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 14 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING TH AT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATE RIAL IS FOUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOW ANCE IN RESPECT OF AN THE SIX ASSESSMENT YEARS. IN THE OPINION OF T HIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS. THE ASSESSMENT IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT. UNDER SECTION 153A OF THE ACT, ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR REQUISITION , NAMELY, IN RELATION TO MATERIAL DISCLOSED DURING THE SEARCH OR REQUISITION. IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING M ATERIAL IS FOUND, NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESSMENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REI TERATED. IN THIS REGARD, THIS COURT IS IN COMPLETE AGREEMENT WITH TH E VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEE L (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 THE DECISION OF THIS COURT IN T HE CASE OF CIT V. JAYABEN RATILAL SORATHIA (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDERING S ECTION 153A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR ASSESS THE RETURN WITH RESPECT TO SIX PRECEDING YEARS ; HOWEVER, THERE MUS T 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), ANOTH ER BENCH OF THE GUJARAT HIGH COURT REITERATED THE ABOVE LEGAL P OSITION FOLLOWING ITS EARLIER DECISION IN SAUMYA CONSTRUCTION (P.) LT D. (SUPRA) AND OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS KARNA TAKA 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 EAC H OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CALCUTTA HIGH COURT IN SALAS AR STOCK BROKING ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 15 LTD. (SUPRA), TOO, FOLLOWED THE DECISION OF THIS CO URT 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 PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED I N THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REG ULAR 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 B EEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7TH DECEMBER, 2015. THE DECISION IN DAYAWANTI GUPTA 64. THAT BRINGS US TO THE DECISION IN SMT. DAYAWANTI G UPTA (SUPRA). AS RIGHTLY POINTED OUT BY MR. KAUSHIK, LEARNED COUN SEL APPEARING FOR THE RESPONDENT, THAT THERE ARE SEVERAL DISTINGUISHI NG FEATURES IN THAT CASE WHICH MAKES ITS 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 A NSWERS GIVEN TO QUESTIONS POSED TO THE ASSESSEE IN THE COURSE OF SE ARCH AND SURVEY PROCEEDINGS IN THAT CASE BRING OUT THE POINTS OF DI STINCTION. IN THE FIRST PLACE, IT WAS STATED THAT THE STATEMENT RECOR DED WAS UNDER SECTION 132(4) AND NOT UNDER SECTION 133A. IT WAS A STATEMENT BY THE ASSESSEE 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 TR ANSACTIONS MADE ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 16 IN RESPECT OF PURCHASE, MANUFACTURING AND SALES IN OUR REGULAR BOOKS OF ACCOUNTS BUT IT IS ALSO FACT THAT SOME TIM E DUE TO SOME FACTORS LIKE INABILITY OF ACCOUNTANT, OUR BUSY SCHE DULE AND SOME FAMILY PROBLEMS, VARIOUS PURCHASES AND SALES OF SUP ARI, GUTKA AND OTHER ITEMS DEALT BY OUR FIRMS IS NOT ENTERED AND S HOWN IN THE REGULAR 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 WER E NOT MAINTAINING REGULAR BOOKS OF ACCOUNTS AND THE TRANS ACTIONS WERE NOT RECORDED THEREIN. 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 CATEGORICA L AND READS THUS: 'ANS:- I HEREBY ADMIT THAT THESE PAPERS ALSO CONTEN D DETAILS OF VARIOUS TRANSACTIONS INCLUDE PURCHASE/SALES/MANUFAC TURING TRADING OF GUTKHA, SUPARI MADE IN CASH OUTSIDE BOOKS OF ACC OUNTS AND THESE ARE ACTUALLY UNACCOUNTED TRANSACTIONS MADE BY OUR TWO FIRMS NAMELY M/S. ASOM TRADING AND M/S. BALAJI 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 FAILURE TO RECORD ANY TRANSACTION IN THE ACCOUNTS O F THE ASSESSEE FOR THE AYS IN QUESTION. ON THE CONTRARY, THE ASSESSEE HEREIN STATED THAT, HE IS REGULARLY MAINTAINING THE BOOKS OF ACCO UNTS. THE DISCLOSURE MADE IN THE SUM OF RS. 1.10 CRORES WAS O NLY FOR THE YEAR OF SEARCH AND NOT FOR THE EARLIER YEARS. AS ALREADY NOTICED, THE BOOKS OF ACCOUNTS MAINTAINED BY 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 MANIPULATION OF THE ACCOUNTS. IN SMT. DAYAWANTI GUP TA (SUPRA), BY CONTRAST, THERE WAS A CHART PREPARED CONFIRMING THA T THERE HAD BEEN A YEAR-WISE NON-RECORDING OF TRANSACTIONS. IN SMT. DAYAWANTI GUPTA (SUPRA), ON THE BASIS OF MATERIAL RECOVERED D URING SEARCH, THE ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 17 ADDITIONS WHICH WERE MADE FOR ALL THE YEARS WHEREAS ADDITIONS IN THE PRESENT CASE WERE MADE BY THE AO ONLY FOR AY 20 04-05 AND NOT ANY OF THE OTHER YEARS. EVEN THE ADDITIONS MADE FOR AYS 2004-05 WERE SUBSEQUENTLY DELETED BY THE CIT (A), WHICH ORD ER WAS AFFIRMED BY THE ITAT. EVEN THE REVENUE HAS CHALLENG ED ONLY TWO OF SUCH DELETIONS IN 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 TH E MATERIALS FOUND AS WELL AS THE STATEMENTS RECORDED BY THE ASS ESSEES. THESE ADDITIONS THEREFORE WERE NOT BASELESS. GIVEN THAT T HE ASSESSING AUTHORITIES IN SUCH CASES HAVE TO DRAW INFERENCES, BECAUSE OF THE NATURE OF THE MATERIALS - SINCE THEY COULD BE SCANT Y (AS ONE HABITUALLY CONCEALING INCOME OR INDULGING IN CLANDE STINE OPERATIONS CAN HARDLY BE EXPECTED TO MAINTAIN METICULOUS BOOKS OR RECORDS FOR LONG AND IN ALL PROBABILITY BE ANXIOUS TO DO AWAY W ITH SUCH EVIDENCE AT THE SHORTEST POSSIBILITY) THE ELEMENT OF GUESS W ORK IS TO HAVE SOME REASONABLE NEXUS WITH THE STATEMENTS RECORDED AND DOCUMENTS SEIZED. IN TILLS CASE, THE DIFFERENCES OF OPINION BETWEEN THE CIT (A) ON THE ONE HAND AND THE AO AND ITAT ON THE OTHER CANNOT BE THE SOLE BASIS FOR DISAGREEING 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 I S ANSWERED 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 CLA NDESTINE OPERATIONS' AND THAT A PERSON INDULGING IN SUCH ACT IVITIES 'CAN HARDLY BE ACCEPTED TO MAINTAIN METICULOUS 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 SURMI SES AND ESTIMATES ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 18 WITHOUT THERE BEING ANY INCRIMINATING MATERIAL QUA THE AY FOR WHICH HE SOUGHT TO MAKE ADDITIONS OF FRANCHISEE COMMISSIO N. 70. THE ABOVE DISTINGUISHING FACTORS IN SMT. DAYAWANTI GUPTA (SUPRA), THEREFORE, DO NOT DETRACT FROM THE S ETTLED LEGAL POSITION IN KABUL CHAWLA(SUPRA) WHICH HAS BEEN FOLL OWED NOT ONLY BY THIS COURT IN ITS SUBSEQUENT DECISIONS BUT ALSO BY SEVERAL OTHER HIGH COURTS. 71. FOR ALL OF THE AFOREMENTIONED REASONS, THE COURT I S OF THE VIEW THAT THE ITAT WAS JUSTIFIED IN HOLDING THAT THE INV OCATION OF SECTION 153A BY THE REVENUE FOR THE AYS 2000-01 TO 2003-04 WAS WITHOUT ANY LEGAL BASIS AS THERE WAS NO INCRIMINATING MATER IAL QUA EACH OF THOSE AYS. CONCLUSION 72. TO CONCLUDE: (I ) QUESTION (I) IS ANSWERED IN THE NEGATIVE I.E., IN F AVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IT IS HELD THAT I N THE FACTS AND CIRCUMSTANCES, THE REVENUE WAS NOT JUSTIFIED IN INV OKING SECTION 153A OF THE ACT AGAINST 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 W ITH REFERENCE TO AY 2004-05, THE ITAT WAS CORRECT IN CONFIRMING THE ORD ERS OF THE CIT (A) TO THE EXTENT IT DELETED THE ADDITIONS MADE BY THE AO TO THE TAXABLE INCOME OF THE ASSESSEE OF FRANCHISE COM MISSION IN THE SUM OF RS. 88 LAKHS AND RENT PAYMENT FOR THE SUM OF RS. 13.79 LAKHS? ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE ASSESSMENT IN QUESTION WAS FRAMED U/S 153A IS NOT B ASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED AND THEREFO RE, THE ADDITION MADE ITA NO. 605/JP/2017 M/S GORBANDH MARBLES PVT. LTD. VS. DCIT 19 BY THE AO OF RS. 26,183/- ON ACCOUNT OF EMPLOYEES C ONTRIBUTION TO ESI AND PF IS NOT JUSTIFIED AND THE SAME IS DELETED BY FOLLOWING DECISIONS OF DELHI HIGH COURT IN CASE PR. CIT VS. MEETA GUTGUTI A (SUPRA). IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/2017 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:- 27/12/2017. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S GORBANDH MARBLES PVT. LTD. 312, 3 RD FLOOR, GANPATI PLAZA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRAL CIRCLE- 3, 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. 605/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR