Abhishek Dhanotia, Indore V. Income Tax Officer- 3(1), Indore

ITA 655/Ind/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6984 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIRISH AGRAWAL; NISHA LAHOTI CA S
• Keywords: Reopening of assessment; Unexplained investment; Income from undisclosed sources; Principle of natural justice; Opportunity of cross examination; Procedural lapse; Competent authority; Block assessment; Documents seized
• Section: 143(3); 153A; 234B; 64; 13; 153; 158BD; 22; 153C; 131; 69; 148; 132; 15

Judgement Text

[ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.655/IND/2018 ASSESSMENT YEAR: 2010-11 SHRI ABHISHEK DHANOTIA FH-441, SCHEME NO.54, VIJAY NAGAR, INDORE / VS. ITO - 3 ( 1 ) INDORE ( APPELLAN T ) ( REVENUE ) P.A. NO. AJOPD1011H APPELLANT BY SHRI GIRISH AGRAWAL & NISHA LAHOTI , CA S RESPONDENT BY SHRI ASHISH PORWAL , SR. DR DATE OF HEARING: 07.07.2020 DATE OF PRONOUNCEMENT: 09.09.2020 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX APPEALS [CIT(A)]-I, I NDORE DATED 10.05.2018 PERTAINING TO THE ASSESSMENT YEAR 2010 - 11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN SUSTAINING THE ORDER PASSED BY LD. AO U/S [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 2 143(3) RWS 147 OF THE ACT WHICH IS CONTRARY TO THE MATERIAL ON RECORD AND PROVISIONS OF THE ACT, UNJUST AND BAD IN LAW. 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN SUMMARILY DISPOSING ALL THE GROUNDS FROM 02 TO 05 TAKEN TOGETHER. 3. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN SUSTAINING ADDITION OF RS. 16,00,00 0 MADE BY LD. AD BY PLACING RELIANCE ON THE STATEMENT OF A TH IRD PARTY WITHOUT BRINGING ANY POSITIVE MATERIAL ON RECORD TO CORROBORATE THE ADDITION MADE. 4. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN HOLDING THAT THERE ARE EVIDENCES IN RESPECT OF ON- MONEY PAID BY THE APPELLANT. 5. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A)-I, INDORE ERRED IN NOT CONSIDERING THE SPECIFIC REQUES T MADE BEFORE LD. AD FOR PROVIDING AN OPPORTUNITY OF CROSS-EXAMIN ATION OF MR. AKSHAY DOSHI ON WHOSE STATEMENT SOLE RELIANCE WAS P LACED BY LD.AD TO MAKE ADDITION OF RS. 16,00,000. 6. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A)-I, INDORE ERRED IN NOT CONSIDERING THE SPECIFIC REQUES T MADE BEFORE LD. AD FOR MAKING AVAILABLE THE COPIES OF DOCUMENTS , STATEMENTS AND ASSESSMENT ORDERS IN THE CASE OF M/S . BHOOMI ELEGANT AND MR. AKSHAY DOSHI ON THE BASIS OF WHICH ADVERSE VIEW IS TAKEN. 7. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN SUSTAINING THE ADDITION OF RS. 16,0 0,000 MADE BY LD. AD TO THE TOTAL INCOME OF THE ASSESSEE AGAIN ST THE PURCHASE OF FLAT FOR PAYMENT IN CASH BY TREATING IT AS UNEXPLAINED/UNDISCLOSED INVESTMENT U/S 69 OF THE AC T. 8. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. (IT(A)-I, INDORE ERRED IN SUSTAINING THE LEVY OF INTEREST U/S 234A, 234B AND 234(. 9. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR OTHERWISE RAISE ANY OTHER GROUND OF APPEAL. [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 3 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON THE GROUND THAT TH E INFORMATION WAS RECEIVED FROM THE DCIT CENTRAL CIRCLE 6(2), MUMBAI THAT DURING THE SEARCH AND SURVEY PROCEEDINGS CARRIED OUT ON 05.10.2015 ON M/S EKTA & BHOOMI GROUP SEVERAL INCRIMINATING DATA OF M/S BHOOMI GROUP WAS FOUND WHICH WAS RELATED TO CASH TRANSACTIONS EXECUTED BY THE BHOOMI GROUP WITH DIFFERENT PARTIES. THE DATA IN RESP ECT OF CASH TRANSACTIONS PERTAINING TO BHOOMI, GROUP WAS FOUN D IN DIGITAL FORM. THE DIRECTORS OF M/S BHOOMI GROUP, IN HIS STATEMENT RECORDED U/S 131 DATED 28.12.2015 HAD ADMITTED THAT THE DIGITAL DATE FOUND DURING THE COURSE OF SEARCH DEMONSTRATED THE CASH TRANSACTIONS EXECUTED BY BHOOMI GROUP WHICH WAS NOT RECORDED IN REGULAR BOOKS OF ACCOUNTS. IT WAS NOTICED THAT THE ASSESSEE PAID AN AMOUNT OF RS.16,00,000/- IN CASH ON 02.01.2010 FOR THE PUR CHASE OF FLAT NO. C/604 IN PROJECT BHOOMI ELEGANT IT WAS [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 4 ESTABLISHED DURING THE COURSE OF SEARCH PROCEEDINGS T HAT M/S. BHOOMI ELEGANT OF BHOOMI GROUP HAD ACCEPTED ON MONEY OF RS.16,00,000/- FROM SHRI ABHISHEK DHANOTIYA THE ASSESSEE HEREIN IN RESPECT OF THE DEAL DONE ON 08.01.2010. THE SALE CONSIDERATION WAS RS. 24,59,000/- AS PER SALE AGREEMENT WHEREAS THE TOTAL SALE CONSIDERATIO N WAS PAID OF RS.40,59,000/- HENCE, THE ASSESSEE HAD PAID ON MONEY OF RS. 16,00,000/-. THE ASSESSING OFFICER, THEREFORE, REOPENED THE ASSESSMENT AND ISSUED A NOTICE U/S 148 DATED 31.03.2017 AFTER RECORDING THE REASONS AN D OBTAINING APPROVAL FROM THE COMPETENT AUTHORITY. THEREAFTER, THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 143(3) R.W.S. 147 THEREBY THE ASSESSING OFFICER MADE AN ADDITION OF RS.16,00,000/- IN THE RETURN FILED BY TH E ASSESSEE. [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 5 3. ASSESSEE AGGRIEVED BY THIS ACTION OF THE ASSESSING OFF ICER PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO SUSTAINED THE ADDITION AND APPEAL OF THE ASSESSEE WAS DISMISSED. 4. AGGRIEVED AGAINST THE ACTION OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 5. GROUND NO.1 AND 2 ARE AGAINST THE LEGALITY OF THE REOPENING OF THE CASE AND OTHER GROUNDS 3 TO 6 AGAINST THE SUSTAINING OF ADDITION. THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. HE SUBMITTED THAT THE ALLEGED MATERIAL/INFORMATION WAS GATHERED DURING THE COURSE OF SEARCH, THEREFORE, PROV ISIONS OF SECTION 153 WOULD BE APPLICABLE BUT NOT OF SUCH U/ S 147 OF THE ACT. FURTHER, HE CONTENDED THAT THE MATERIAL WAS COLLECTED AT THE DATA OF THE ASSESSEE. THE STATEMENT OF 3 RD PARTY WAS RECORDED ON THE BASIS OF SUCH STATEMENTS, ADDITION WAS MADE BY THE ASSESSING OFFICER. IT IS CONTR ARY TO [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 6 THE SETTLED PRINCIPLE OF LAW. LD. COUNSEL FURTHER R EITERATED THE SUBMISSION AS MADE IN THE WRITTEN SUBMISSIONS. FO R THE SAKE OF CLARITY WRITTEN SUBMISSION ARE REPRODUCED AS UNDER: A. APROPOS GROUND NO.1 - IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A)-1, INDORE ERR ED IN SUSTAINING THE ORDER PASSED BY LD. AO U/S 143(3) RW S 147 OF THE ACT WHICH IS CONTRARY TO THE MATERIAL ON RECORD AND PROVISIONS OF THE ACT, UNJUST AND BAD IN LAW. 1. IN THE INSTANT CASE, THE BASIS OF INITIATION OF PRO CEEDINGS IS THE INFORMATION RECEIVED FROM THE DCIT CENTRAL CIRC LE -6(2), MUMBAI DURING THE SEARCH AND SURVEY PROCEEDINGS CAR RIED OUT ON 05.10.2015 ON M/S. EKTA & BHOOMI GROUP. SEVERAL INCRIMINATING DATA OF M/S BHOOMI GROUP WAS FOUND WH ICH IS RELATED TO CASH TRANSACTIONS EXECUTED BY THE BHOOMI GROUP WITH DIFFERENT PARTIES. THE DATA IN RESPECT OF CASH TRAN SACTIONS PERTAINING TO BHOOMI GROUP WAS FOUND IN DIGITAL FOR M. THE DIRECTOR OF BHOOMI GROUP, MR. AKSHAY DOSHI IN HIS P OST SEARCH STATEMENT RECORDED U/S 131 OF THE ACT ON 28.12.2015 ADMITTED THAT DIGITAL DATA FOUND DURING THE COURSE OF THEIR SEARCH REPRESENTS CASH TRANSACTIONS EXECUTED BY BHOOMI GRO UP WHICH HAVE NOT BEEN RECORDED IN REGULAR BOOKS OF ACCOUNTS . 2. PROVISIONS OF SECTION 153C READ - NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, WHERE THE ASSESSING OFFICER IS SATISFIED.. SECTION 153C STARTS WITH A NON OBSTANTE CLAUSE THAT IS NOTWITHSTANDING. THIS NON OBSTANTE CLAUSE HAS AN OVERRIDING EFFECT ON THE PROVISIONS OF THE OTHER SECTIONS MENT IONED AFTER THIS WORD. THUS, IT IS CLEAR THAT, OWING TO THE NON OBST ANTE CLAUSE, PROVISIONS OF SECTION 139, 147, 148, 149, 151 AND 1 53 ARE NOT [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 7 APPLICABLE TO THE ASSESSMENTS COVERED BY THE PROVIS IONS OF SECTION 153C. 3. CBDT CIRCULAR NO. 7 OF 2003 DATED 05.09.2003 - FINA NCE ACT, 2003 EXPLANATORY NOTES ON PROVISIONS RELATING TO DIRECT TAXES - PARA 65.9 - THE NEW SECTION 153C PROVIDES THAT WHERE AN ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, B ULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOO KS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG OR BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT, OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVIN G JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER S HALL PROCEED AGAINST SUCH OTHER PERSON AND ISSUE SUCH OTHER PERS ON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. [E MPHASIS SUPPLIED] 4. FROM THE ABOVE MENTIONED CIRCULAR, IT IS EVIDENT TH AT PROVISIONS OF SECTION 153C ARE APPLICABLE IN SPECIF IC CIRCUMSTANCES WHEN ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DO CUMENTS SEIZED OR REQUISITIONED BELONG OR BELONGS TO A PERS ON OTHER THAN THE SEARCHED PERSON. 5. PROVISIONS OF SECTION 153C ARE SPECIFIC, SEPARATE A ND INDEPENDENT PROVISIONS APPLICABLE ONLY IN THE CIRCU MSTANCES WHERE THE MATERIAL IS SEIZED OR REQUISITIONED DURIN G THE CONDUCT OF SEARCH U/S 132 OF THE ACT. IN THE INSTANT CASE, ADDITION HAS BEEN MADE ON THE BASIS OF MATERIAL SEIZED IN THE SEARCH CONDUCTED IN EKTA AND BHOOMI GROUP. THUS, THE SPECIAL PROVISIONS OF SECTION 153C WHICH ARE SEPARATE AND INDEPENDENT PROVISIONS ARE APPLICABLE IN THE INSTANT CASE AND HAVE AN OVERRIDING EFFECT ON THE O THER PROVISIONS OF THE ACT. DETAILED SUBMISSION WAS MADE BEFORE THE LD. AO EXPLAINING THE ASPECTS OF GENERAL PROVISION S VIS--VIS SPECIAL PROVISIONS WHICH HE FAILED TO CONSIDER. [ PB 62 64] [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 8 6. ASSESSEE SUBMITS THAT LD. AO HAD NO JURISDICTION TO ISSUE NOTICE UNDER THE GENERAL PROVISIONS OF SECTION 148 TO RE-OPEN THE ASSESSMENT WHICH IS SOLELY BASED ON MATERIAL SEIZED DURING THE SEARCH CONDUCTED AT THE THIRD PARTY PREMISES. THE M ATTER IS GOVERNED BY THE PROVISIONS OF SECTION 153C AS AGAIN ST THE GENERAL PROVISIONS OF SECTION 147. 7. ACCORDINGLY, THE IMPUGNED ASSESSMENT IS A VOID AB IGNITION, BAD IN LAW AND ILLEGAL, LIABLE TO BE QUAS HED. 8. RELIANCE IS PLACED ON THE DECISION OF HONBLE AMRIT SAR BENCH OF ITAT IN THE CASE OF ARUN KUMAR KAPOOR - [2 011] 16 TAXMANN.COM 373 - ORDER PRONOUNCED ON 21.06.2011 - PARA 8 - ON A PERUSAL OF THE ABOVE PROVISIONS, IT WOULD BE CLEAR THAT THE PROVISIONS OF S. 153C OF THE ACT WERE APPLICABLE, W HICH SUPERSEDES THE APPLICABILITY OF PROVISIONS OF SS. 1 47 AND 148 OF THE ACT. AS WE HAVE ALREADY NOTED HEREINABOVE THAT THE DOCUMENTS WERE SEIZED DURING THE SEARCH UNDER S. 13 2 OF THE ACT AND THE SAME WERE SENT TO THE ASSESSEE'S AO AT AMRITSAR BY THE OFFICER AT DELHI IN OUR VIEW, THE LEARNED CIT(A ) HAS CORRECTLY OBSERVED THAT ONLY THE PROVISION IN WHICH ANY ASSES SMENT COULD BE MADE AGAINST THE ASSESSEE IN THE IT ACT WAS S. 1 53C R/W S. 153A OF THE ACT. IT IS ALSO APPARENT FROM THE RECOR D THAT THE OFFICER AT DELHI HAS MENTIONED IN HIS LETTER THAT T HE NECESSARY ACTION MAY BE TAKEN AS PER LAW UNDER S. 153C/148 OF THE ACT. HENCE, NOTICE ISSUED UNDER S. 148 OF THE ACT AND PR OCEEDINGS UNDER S. 147 OF THE ACT BY THE AO ARE ILLEGAL AND V OID AB INITIO. IN VIEW OF THE PROVISIONS OF S. 153C OF THE ACT, S. 147/148 STANDS OUSTED. IN THE INSTANT CASE, THE PROCEDURE L AID DOWN UNDER S. 153C HAS NOT BEEN FOLLOWED BY THE AO AND, THEREFORE, ASSESSMENT HAS BECOME INVALID. WE ALSO OBSERVE THAT THE CIT(A) WAS JUSTIFIED IN FOLLOWING THE RATIO LAID DOWN BY T HE HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI V. A SSTT. CIT [2007] 289 ITR 341 / 159 TAXMAN 258 WHEREIN IT HAS BEEN HELD THAT IF THE PROCEDURE LAID DOWN IN S. 158BD IS NOT FOLLOWED, BLOCK ASSESSMENT PROCEEDINGS WOULD BE ILLEGAL. THE CIT(A) HAS CORRECTLY OBSERVED THAT THE PROVISIONS OF S. 153C A RE EXACTLY [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 9 SIMILAR TO THE PROVISIONS OF S. 158BD OF THE ACT IN BLOCK ASSESSMENT PROCEEDINGS. .. [EMPHASIS SUPPLIED] THIS DECISION HAS BEEN REFERRED BY HONBLE PUNE BEN CH OF ITAT IN THE CASE OF RADHEYSHYAM B AGRAWAL [2015] 61 TAXM ANN.COM 50 AND BY HONBLE MUMBAI BENCH OF ITAT IN THE CASE OF SKYLARK BUILD [2018] 97 TAXMANN.COM 682. IN THE INSTANT CASE, THE BASIS OF PROCEEDINGS IS CE RTAIN DOCUMENTS WHICH WERE SEIZED DURING THE SEARCH IN TH E CASE OF M/S EKTA AND BHOOMI GROUP. THE ONLY PROVISIONS IN W HICH THE ASSESSMENT COULD HAVE BEEN MADE WAS SECTION 153C SU BJECT TO FULFILMENT OF ITS CONDITIONS. ASSESSEE SUBMITS THAT THE NOTICE ISSUED U/S 148 AND THE PROCEEDINGS U/S 147 ARE ILLE GAL, VOID AB INITIO IN VIEW OF THE SPECIFIC PROVISIONS ENVISAGED U/S 153C. 9. BEFORE ISSUING NOTICE U/S 153C CERTAIN CONDITIONS A RE TO BE SATISFIED WHICH ARE AS FOLLOWS - A. RECORDING OF SATISFACTION BY AO OF THE SEARCHED PER SON AND BY AO OF OTHER PERSON B. AO OF OTHER PERSON HAS TO APPLY HIS MIND AS TO WHET HER THE ASSETS OR DOCUMENTS HAVE A BEARING ON THE TOTAL INCOME OF THE OTHER PERSON. C. SEIZED MATERIAL SHOULD BE INCRIMINATING. IN THE INSTANT CASE, THE MATERIAL SEIZED IN THE SEA RCH OF THIRD PARTY IS NOTED TO BE IN DIGITAL FORM. IT IS NOT IN THE HANDWRITING OF THE ASSESSEE. FURTHER, IT IS NOTED FROM THE Q.3 OF THE STATEMENT OF SHRI AKSHAY DOSHI RECORDED POST SEARCH U/S 131 T HAT THIS SEIZED MATERIAL IS FROM THE LAPTOP SEIZED FROM THE PREMISES OF ONE SMT. VASUMATI SHAH RESIDING AT A PLACE DIFFEREN T FROM THAT OF SHRI AKSHAY DOSHI. IT IS NOWHERE SPECIFIED AS TO WHAT IS THE RELATION BETWEEN SHRI AKSHAY DOSHI AND SMT. VASUMAT I SHAH. 10. SEARCH WAS CONDUCTED IN EKTA AND BHOOMI GROUP ON 05.10.2015. ASSESSEE APPREHENDS THAT HAVING MISSED THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 153C. LD. AO RESOR TED TO PROCEEDINGS U/S 148 TO TAKE THE ADVANTAGE OF TIME P ERMISSIBLE [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 10 FOR THE SAME. IF SO, SUCH AN APPROACH IS ILLEGAL, U NWARRANTED, VOID AB INITIO AND OUGHT TO BE DISCOURAGED. 11. IN THE INSTANT CASE, ABOVE MENTIONED CONDITIONS FOR ISSUE OF NOTICE U/S 153C ARE NOT SATISFIED. SUCH DEFECTS CANNOT BE CURED BY VIRTUE OF PROVISIONS OF SECTION 292B. RELI ANCE IS PLACED ON THE DECISION OF HONBLE APEX COURT IN THE CASE O F MANISH MAHESHWARI - [2007] 289 ITR 341 - ORDER PRONOUNCED ON 23.02.2007 WHEREIN IT IS HELD THAT IF PROCEDURE LAI D DOWN IN SECTION 158BD IS NOT FOLLOWED, THE BLOCK ASSESSMENT PROCEEDINGS WOULD BE ILLEGAL. THE PROVISIONS OF SECTION 153C ARE EXACTLY SIMILAR TO PROVISIONS OF SECTION 158BD. THUS, THE DECISION OF HONBLE APE X COURT MENTIONED SUPRA IS APPLICABLE MUTATIS MUTANDIS TO T HE PROVISIONS OF SECTION 153C. 12. CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENTS, ASSESSEE PRAYS BEFORE YOUR HONORS THAT THE IMPUGNED ORDER PASSED U/S 143(3) RWS 147 BE QUASHED . WITHOUT PREJUDICE TO SUBMISSIONS ABOVE FOR GROUND N O. 01 B. ASSESSMENT COMPLETED U/S 143(3) RWS 147 IS WITHOUT COMPLYING TO THE PROVISIONS ENVISAGED THERE UNDER 1. REASONS RECORDED VERY CATEGORICALLY DEMONSTRATE THA T THE PROCEEDINGS U/S 147 HAVE BEEN INITIATED MERELY ON T HE BASIS OF INFORMATION RECEIVED FROM THE DCIT CENTRAL CIRCLE 6 (2), MUMBAI. THERE IS NO INDEPENDENT APPLICATION OF MIND BY THE LD. AO ON THE INFORMATION SO RECEIVED WHICH PERTAINS TO SEARC H CONDUCTED IN SOME OTHER GROUP. 2. LD. AO NOTED IN PARA 3.3 THE STATEMENT OF AKSHAY DOSHI ACCEPTING THE CASH AGAINST THE SALE PROCEEDS OF THE FLAT IN ADDITION TO THE VALUE SO RECORDED IN THE BOOKS OF A CCOUNT AND [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 11 MENTIONED ON THE REGISTERED DEED ITSELF BECOMES A S TRONG EVIDENCE TO REOPEN THE CASE. [EMPHASIS SUPPLIED] 3. INSTANT CASE WAS REOPENED ON THE BASIS OF STATEMENT RECORDED U/S 131 OF ONE SHRI AKSHAY DOSHI BY DDIT(I NV.) MUMBAI IN THE SEARCH CASE OF M/S. EKTA & BHOOMI GRO UP WHEREIN HE MADE CERTAIN ASSERTIONS OF ACCEPTING ON- MONEY OF RS. 16,00,000 FROM THE ASSESSEE. [PB 52] 4. THE POST SEARCH STATEMENT MADE BY SHRI AKSHAY DOSHI IS AN ISOLATED STATEMENT AND BINDING ON HIM ONLY. THE STATEMENT ON THE BASIS OF WHICH PROCEEDINGS IN THE INSTANT CA SE WERE INITIATED IS VAGUE IN NATURE AND NEEDS TO BE CROSS- EXAMINED. [PB 50 - 55] 5. A SPECIFIC REQUEST WAS MADE BOTH BEFORE THE LD. AO AND LD. CIT(A) TO PROVIDE AN OPPORTUNITY FOR CROSS-EXAM INATION BUT NEVER SO PROVIDED. LD. AO ISSUED A SUMMON U/S 131 T O WHICH REPLY WAS RECEIVED FROM M/S. BHOOMI ELEGANT, MUMBAI GIVING CERTAIN DETAILS AND DOCUMENTS. THIS REPLY DOES NOT CONTAIN ANY DETAIL RELATING TO ALLEGED CASH TRANSACTION WITH TH E ASSESSEE THOUGH SIGNATORY TO THIS LETTER OF REPLY IS SHRI AK SHAY DOSHI HIMSELF. THIS DEMONSTRATES CONTRADICTION IN HIS AVE RMENTS IN THE POST SEARCH STATEMENT WITH THIS LETTER AS TO ALLEGE D CASH TRANSACTION WITH THE ASSESSEE. [PB 07] 6. ASSESSEE HAD PURCHASED A FLAT FROM M/S. BHOOMI ELEG ANT, MUMBAI FOR A REGISTERED VALUE OF RS. 24,59,000. A R EGISTERED AGREEMENT IS ON RECORD WHICH WAS MADE AVAILABLE BY THE SELLER WHICH MENTIONS THE CORRECT AND REAL CONSIDERATION F OR THE FLAT PURCHASED FOR RS. 24,59,000. MARKET VALUE OF THE FL AT MENTIONED IN THE SALE DEED IS RS. 24,12,500. IMPORTANTLY, SHR I AKSHAY DOSHI IS A PARTY TO THE REGISTERED SALE DEED WHOSE ASSERTIONS THEREIN ARE CONTRARY TO HIS OWN STATEMENTS MADE U/S 131. [PB 15 AND 22] 7. ASSESSEE IS A SOFTWARE ENGINEER AND SALARY IS THE DOMINANT SOURCE OF HIS INCOME. DETAILS OF HIS BANK ACCOUNTS [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 12 WITH WITHDRAWALS FOR THE PAST THREE YEARS WERE PLAC ED ON RECORD BEFORE THE LD. AO WHICH VERY EVIDENTLY ESTAB LISHES THAT THERE WAS NEITHER ANY OCCASION NOR ANY SOURCE AVAIL ABLE WITH THE ASSESSEE TO PAY SUCH A HUGE AMOUNT OF RS. 16,00 ,000 IN CASH. 8. IN THE REASONS RECORDED FOR ISSUE OF NOTICE U/S 148 , LD. AO STATES DURING THE COURSE OF SEARCH PROCEEDINGS, IT WAS ESTABLISHED THAT M/S. BHOOMI ELEGANT OF BHOOMI GROU P HAS ACCEPTED ON-MONEY OF RS. 16,00,000/- FROM SHRI ABHI SHEK DHANOTIYA IN RESPECT OF DEAL DONE ON 08/01/2010; TH E AGREEMENT VALUE WAS 24,59,000/- WHEREAS THE DEAL VA LUE WAS OF RS. 40,59,000/- THUS ASSESSEE PAID ON MONEY OF R S. 16,00,000/- THAT WAS NOT DISCLOSED BY THE ASSESSEE. [PB 05] A. FROM THE ABOVE REASONS AS RECORDED, IT IS EVIDENT T HAT WITHOUT MAKING ANY ENQUIRY OR INVESTIGATION AT HIS OWN END, LD. AO CAME TO A CONCLUSION ABOUT WHAT WAS ESTABLISHED IN THE SEARCH PROCEEDINGS OF M/S. BHOOMI ELEGANT OF BHOOMI GROUP. B. THE AGREEMENT VALUE NOTED BY THE LD. AO IS RS. 24,59,000/- WHICH IS THE REGISTERED VALUE. FIGURE O F RS. 40,59,000 DOES NOT APPEAR ANYWHERE, EVEN IN THE DOC UMENTS SUPPLIED BY M/S. BHOOMI ELEGANT. THE EXCEL SHEET ON WHICH RELIANCE IS PLACED FOR ALLEGED PAYMENT OF CASH OF R S. 16,00,000 BY THE ASSESSEE ALSO VERY CATEGORICALLY STATES AGRE EMENT VALUE AT RS. 24,59,000/- ONLY. [PB 55] C. TREATMENT OF ALLEGED ACCEPTANCE OF ON-MONEY BY M/S. BHOOMI ELEGANT FROM THE ASSESSEE HAS NOT BEEN REVEA LED FOR WHICH ASSESSMENT ORDERS OF M/S. BHOOMI ELEGANT AND SHRI AKSHAY DOSHI ARE IMPORTANT DOCUMENTS AND OUGHT TO H AVE BEEN VERIFIED AS ALSO MADE AVAILABLE TO THE ASSESSEE. D. LD. AO DID NOT APPLY HIS MIND INDEPENDENTLY ON THE INFORMATION RECEIVED FROM THE DCIT CENTRAL CIRCLE 6 (2), MUMBAI BUT MECHANICALLY PROCEEDED TO INITIATE THE PROCEEDI NGS U/S 148. THE REASONS SO RECORDED TO ARRIVE AT A BELIEF THAT INCOME HAS [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 13 ESCAPED ASSESSMENT DOES NOT IN ANY WAY REFLECT THE APPLICATION OF MIND BY THE LD. AO. IT IS AN APPROACH ADOPTED FO R MAKING FISHING AND ROVING ENQUIRIES ONLY. RELIANCE IS PLACED ON THE DECISION OF HONBLE DELHI ITAT IN THE CASE OF ACIT V. DEVESH KUMAR ITA NO. 2068/DEL/2010 DATED 31.10.2014 WHEREIN PARA 19 AND PARA 20 DEALS WITH S IMILAR ISSUE AS IN THE INSTANT CASE. E. THERE IS NO REFERENCE TO ANY AGREEMENT OR DOCUMENT OR LOOSE PAPER WHICH BEARS THE SIGNATURES OF THE ASSES SEE AND THE PERSON ON WHOSE STATEMENT RELIANCE IS PLACED, WHICH IS FOUND DURING THE COURSE OF SEARCH CONDUCTED IN THE CASE O F M/S. BHOOMI GROUP, MUMBAI AND WHICH SUGGESTS THAT ASSESS EE HAS AGREED TO PAY RS. 16,00,000 IN CASH TO THE SELLER O F THE FLAT. F. WITHOUT PREJUDICE, IT IS ALSO SUBMITTED THAT ASSESS EE BEING A SALARIED PERSON, RETURN FILED BY HIM DOES NOT REQ UIRE AND ALSO DOES NOT HAVE ANY PROVISION TO MAKE A DISCLOSURE OF THE INVESTMENT MADE BY HIM IN THE HOUSE PROPERTY. ACCOR DINGLY, THERE CANNOT BE A CASE OF UNDISCLOSED INVESTMENT IN THE INSTANT CASE. INTEREST ON THE HOUSING LOAN AVAILED FOR MAKI NG INVESTMENT IN THE IMPUGNED FLAT IS CLAIMED AS A DED UCTION IN THE RETURN AND HAS BEEN ALLOWED IN THE ASSESSMENT. G. ALSO, ADDITION MADE U/S 69 BY THE LD. AO IS A DEEMI NG PROVISION. TO APPLY SUCH A DEEMING PROVISION, THERE MUST BE, IN THE FIRST INSTANCE, A TRANSACTION WHICH IS REAL AND ACTUAL AND WHICH IS NOT OF THE CHARACTER OF INCOME. IN THE INS TANT CASE, ALLEGED CASH PAYMENT OF RS. 16,00,000 BY THE ASSESS EE TO THE SELLER OF THE FLAT IS PURELY BASED ON SURMISES, CON JECTURES AND SUSPICION. SUCH A TRANSACTION CANNOT BE CHARACTERIZ ED AS AN INCOME BY APPLYING DEEMING PROVISIONS OF THE ACT WH ICH ARE TO BE CONSTRUED IN THE STRICTEST SENSE. 9. THERE IS NO OCCASION TO ISSUE NOTICE U/S 148 WHICH IN FACT TANTAMOUNT TO MAKING FISHING AND ROVING ENQUIRES FO R WHAT HAS BEEN FOUND IN THE SEARCH PROCEEDINGS OF SOME OTHER GROUP. IT IS [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 14 A SETTLED LAW THAT PROVISIONS OF SECTION 148 RWS 14 7 ARE NOT MEANT FOR MAKING ENQUIRES. THERE HAS TO BE A RATION AL AND INTELLIGIBLE NEXUS BETWEEN THE REASONS WHICH EXISTS AND THE BELIEF WHICH IS FORMED ON SUCH REASONS. SECTION 148 RWS 147 NECESSARILY POSTULATES THAT BEF ORE THE AO IS SATISFIED TO ACT UNDER THE SAID PROVISIONS, HE M UST PUT IN WRITING AS TO WHY IN HIS OPINION OR WHY HE HOLDS TH E BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. WHY FOR HOLDING SU CH BELIEF MUST BE REFLECTED FROM THE RECORD OF REASONS MADE B Y THE AO. THE REASONS RECORDED BY THE AO MUST DISCLOSE BY WHA T PROCESS OF REASONING HE HOLDS SUCH A BELIEF. MERELY SAYING THE INCOME HAS ESCAPED ASSESSMENT DOES NOT CONFER JURISDICTION ON THE AO TO TAKE ACTION U/S 148 RWS 147 OF THE ACT. RELIANCE IS PLACED ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF BIRLA VXL 217 ITR 1. ACTION OF THE LD. AO PER SE REFLECTS THAT THE MATTE R REQUIRED DETAILED INVESTIGATION AND FURTHER VERIFICATION WHI CH AT BEST COULD BE CATEGORIZED AS AO HAVING REASONS TO SUSPE CT AND NOT REASONS TO BELIEVE. ASSUMPTION OF JURISDICTION BY T HE LD. AO ON THE BASIS OF REASONS TO SUSPECT IS INVALID AND THE ENTIRE PROCEEDINGS SO UNDERTAKEN WITH THE SOLE OBJECT OF M AKING OPEN ENDED ENQUIRIES IS NOT SUSTAINABLE AND LIABLE TO BE QUASHED. RELIANCE IS PLACED ON THE DECISIONS OF HONBLE JURI SDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE FOLLOWING DECIS IONS A. ARJUN SINGH [2000] 246 ITR 363 (MP) B. LOKENDRA SINGH RATHORE [1985] 155 ITR 629 (MP) C. BOMBAY PHARMA PRODUCTS [1999] 237 ITR 614 (MP) 10. WITHOUT PREJUDICE, THE INSTANT PROCEEDINGS CARRIED OUT WITHOUT MAKING AVAILABLE COPIES OF DOCUMENTS, RETUR NS AND COMPUTATION OF INCOME FOR VERIFYING THE TREATMENT O F ALLEGED CASH OF RS. 16,00,000 AND RESULTING ASSESSMENT ORDE RS OF M/S. BHOOMI ELEGANT, SHRI AKSHAY DOSHI AND OTHER RELEVAN T PERSON IS IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE . [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 15 ASSESSEE NEVER HAD AN OPPORTUNITY TO VERIFY THE ASS ERTIONS MADE BY SHRI AKSHAY DOSHI NOR THE DOCUMENTS AND REC ORDS WHICH FORMED THE BASIS OF INSTANT PROCEEDINGS. STAT EMENTS RECORDED BEHIND THE BACK OF THE ASSESSEE AND RELIED UP ON FOR TAKING AN ADVERSE VIEW AGAINST THE ASSESSEE HAS NO EVIDENTIARY VALUE SINCE NO OPPORTUNITY OF CROSS EXAMINING THE S AID PARTY HAS BEEN GIVEN TO THE ASSESSEE. 11. ASSESSEE HAD PURCHASED THE FLAT FOR A CONSIDERATION OF RS. 24,59,000. REGISTRY WAS DONE AT THIS VALUE AND GUID ELINE VALUE AS RECORDED IN THE REGISTRY IS RS. 24,12,500 WHICH IS LESS THAN THE ACTUAL AND REAL CONSIDERATION. THE SALE CONSIDE RATION HAS BEEN ACCEPTED BY THE REGISTERING AUTHORITY AND BY T HE SELLER, AMOUNT FOR WHICH HAVE BEEN PAID THROUGH BANKING CHA NNEL. ASSESSEE HAD AVAILED HOUSING LOAN FROM STATE BANK O F INDIA AND HAS CLAIMED DEDUCTION FOR INTEREST PAID ON HOUS ING LOAN WHICH HAS BEEN ALLOWED IN THE ASSESSMENT ORDER. [PB 48] NO DOCUMENT IS FOUND WHICH ESTABLISHES THAT CASH HA S BEEN PAID BY THE ASSESSEE. REPLY RECEIVED FROM SHRI AKSH AY DOSHI AGAINST NOTICE ISSUED U/S 131 BY THE LD. AO CATEGOR ICALLY STATES THAT AGREEMENT TO SELL THE FLAT WAS MADE AT THE VAL UE STATED IN THE REGISTERED DOCUMENT. THERE IS NO MENTION BY HIM IN THE SAID REPLY ABOUT ANY ON-MONEY PAID BY THE ASSESSEE TO HIM IN CASH FOR RS. 16,00,000. THERE IS NO CONCRETE PROOF / EVI DENCE / PAPER WHICH ESTABLISHES PAYMENT OF RS. 16,00,000 BY IN CA SH THE ASSESSEE. [PB 07] 12. IT IS SUBMITTED THAT THE ADDITION OF RS. 16,00,000 IN THE CASE OF THE ASSESSEE IS BASED ON SOME DATA FOUND IN DIGITAL FORM IN EXCEL SHEETS IN LAPTOP SEIZED FROM THE PREM ISES OF SMT. VASUMATI SHAH (VASUMATI V MODY) WHICH CONTAINED DAT A RELATED TO TRANSACTIONS EXECUTED BY BHOOMI GROUP IN CASH AND NOT RECORDED IN REGULAR BOOKS OF ACCOUNTS. [PB 51, ANSWER TO QUESTION NO. 3] [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 16 13. IT IS SUBMITTED THAT IT IS OPEN FOR AO TO COLLECT E VIDENCE FROM ANY SOURCE BUT IF THE ASSESSEE DENIES THE INFO RMATION COLLECTED BY THE AO, THE AO HAS TO SATISFY HIMSELF BY MAKING INDEPENDENT ENQUIRY FROM SOURCE CONSIDERED RELIABLE BY HIM AND DECIDE WHETHER INFORMATION PASSED ON TO HIM IS TRUE OR NOT. IT IS A SETTLED LEGAL POSITION THAT THE ENTRIES FOU ND RECORDED IN THE BOOKS OF ACCOUNT OF THE THIRD PARTY OR STATEMEN T RECORDED UNDER SECTION 132(4) OR 131 OF THE ACT OF A THIRD P ARTY ARE BINDING UPON HIM IN HIS OWN CASE ONLY AND THE SAME CANNOT BE FOISTED UPON THE OTHER PARTIES IN THE ABSENCE OF SU FFICIENT CORROBORATORY MATERIAL. IT IS SETTLED LAW THAT ASSE SSEE CANNOT BE PENALIZED FOR HAND WRITTEN ENTRIES IN THE DIARY [DI GITAL RECORD OF ENTRIES IN THE INSTANT CASE] MAINTAINED BY THIRD PA RTY UNLESS ANY EVIDENCE IS FOUND AGAINST HIM. IN SUPPORT RELIA NCE IS PLACED ON FOLLOWING JUDGMENTS: A) EAGLE SEEDS & BIOTECH LTD V. ACIT [2006] 6 ITJ 668 (INDORE) - HELD - STATEMENT OF THIRD PARTY OR ANY EVIDENCE FO UND DURING SEARCH IN CASE OF THIRD PARTY NOT CONFRONTED TO ASS ESSEE. STATEMENT OF ACCOUNTANT OF THIRD PERSON GIVEN TO AS SESSEE AND OPPORTUNITY TO CROSS EXAMINE GIVEN TO ASSESSEE, IS NOT OF MUCH RELEVANCE AS HE IS NOT ACCOUNTABLE OR CONNECTED WIT H THE CASE. B) ITO V. R.L. NARANG (DR.) [2008] 174 TAXMANN 96 (CHA ND.) - HELD - ASSESSEES INCOME CANNOT BE ASSESSED ON BAS IS OF STATEMENT OF A THIRD PARTY, UNLESS THERE IS SOME MA TERIAL TO CORROBORATE THAT STATEMENT. BURDEN SHIFTS ON THE RE VENUE TO PROVE THAT ASSESSEE HAD DELIBERATELY SUPPRESSED HIS INCOME. PARA 4. . THE MERE FACT THAT SOMEBODY MADE A STATEMENT, BY ITSELF, CANNOT BE TREATED AS H AVING RESULTED IN AN IRREBUTTABLE PRESUMPTION AGAINST THE ASSESSEE. THE BURDEN OF SHOWING THAT THE ASSESSEE HAD DISCLOS ED INCOME IS ON THE REVENUE AND THAT BURDEN CANNOT BE SAID TO HAVE BEEN DISCHARGED BY MERELY REFERRING TO THE STATEMENT OF A THIRD PARTY IN CONNECTION WITH THE TRANSACTION. THEREFORE, SUCH STATEMENT [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 17 CANNOT BE MADE THE SOLE FOUNDATION THAT THE ASSESSE E HAD DELIBERATELY SUPPRESSED HIS INCOME. EVEN OTHERWISE, IF THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE, THE ONUS SHIFTS TO THE REVENUE TO PROVE THE SAME WITH CORROBORATING MA TERIAL. NO SPECIFIC INFIRMITY HAD BEEN PINPOINTED BY THE REVEN UE IN THE IMPUGNED ORDER, NOR ANY ADVERSE MATERIAL HAD BEEN B ROUGHT ON RECORD BY THE ASSESSING OFFICER TO SUBSTANTIATE HIS CONTENTION THAT THE ASSESSEE HAD PAID ANY UNDERHAND MONEY, EXC EPT THE MONEY WHICH HAD BEEN SHOWN IN THE SALE DEED. C) ADDL. CIT V. LATA MNGESHKAR [1974] 97 ITR 696 (BOM) - IN THIS CASE, THE INCOME TAX OFFICER CAME ACROSS A SORT OF A LEDGER MAINTAINED BY THE FIRM KNOWN AS VASU FILMS O F MADRAS CONTAINING CERTAIN ENTRIES, WHICH HAD BEEN SEIZED B Y THE INCOME TAX AUTHORITIES FROM THE PREMISES OF THAT FIRM AT M ADRAS AND RELYING ON THOSE ENTRIES ADDITIONS WERE MADE. ON AP PEAL, TRIBUNAL DELETED THE ADDITIONS MADE WHICH WAS CONFI RMED BY THE HIGH COURT. THE HONBLE HIGH COURT OBSERVED - THE EVIDENCE ON WHICH THE INCOME TAX AUTHORITIES RELIED WERE STATEMENTS BY TW O PERSONS THAT THEY HAD PAID MONEY IN BLACK TO THE ASSESSEE AND ENTRIES IN BOOKS BELONGING TO THEM REGARDING ALLEGED PAYMEN TS TO THE ASSESSEE. THE TRIBUNAL EXAMINED THE STATEMENTS MADE BY THE TWO PERSONS AND FOUND THAT THE EVIDENCE TENDERED BY THEM SUFFERED FROM SERIOUS INFIRMITIES. IT HELD THAT MER E ENTRIES IN THE ACCOUNTS REGARDING PAYMENTS TO THE ASSESSEE WAS NOT SUFFICIENT AS THERE WAS NO GUARANTEE THAT THE ENTRIES WERE GEN UINE. THE TRIBUNAL, THEREFORE, HELD THAT THERE WAS NO PROOF T HAT THE AMOUNTS IN QUESTION REPRESENTED INCOME FROM UNDISCL OSED SOURCES BELONGING TO THE ASSESSEE. D) CHIRANJI LAL STEEL ROLLING MILLS V. CIT [1972[ 84 I TR 222 (P&H) - HELD - THE COPY OF ENTRIES FROM THE ACCOUNTS OF AN OTHER FIRM SUPPLIED TO THE INCOME TAX OFFICER BY THE SALES TAX DEPARTMENT [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 18 WAS NOT LEGAL AND ADMISSIBLE EVIDENCE ON WHICH THE INCOME TAX OFFICER COULD ACT FOR IMPOSING EXTRA BURDEN OF INCO ME TAX ON THE ASSESSEE WHEN THE ORIGINAL ACCOUNTS WERE MISSING AN D COULD NOT BE VERIFIED AND WHEN THE ASSESSEE DENIED THE EN TRIES THEREIN. E) DY. CIT V. MAHENDRA AMBALAL PATEL [2010] 40 DTR 243 (GUJ) - HELD - ADDITION IN THE HANDS OF THE ASSESSEE HAVIN G BEEN MADE MERELY ON THE BASIS OF A STATEMENT MADE BY A THIRD PARTY WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE, THE TRIBUNAL WAS JUSTIFIED IN DELETING THE ADDITION PARTICULARLY WHEN THE ASSESSEE WAS NOT ALLOWED OPPORTUNITY TO CROSS EXAMI NE THE PERSONS WHO MADE SUCH A STATEMENT. F) HEIRS & L.RS OF LATE LAXMAN BHAI S. PATEL V.CIT [20 08] 327 ITR 290 (GUJ) - HELD - THE ASSESSEES STATEMENT WAS RECORDED BY TH E ASSESSING OFFICER AND SOME DISCREPANCIES WERE POINT ED OUT BUT MERELY ON THE BASIS OF SUCH DISCREPANCIES, ADVERSE PRESUMPTIONS COULD NOT BE DRAWN AGAINST HIM. THE DE PARTMENT HAD FAILED TO ESTABLISH ANY NEXUS BETWEEN THE PROMI SSORY NOTE AND THE AMOUNT SAID TO HAVE BEEN GIVEN BY THE ASSES SEE TO K. THE TRIBUNAL WAS NOT RIGHT IN LAW IN UPHOLDING THE ADDITION OF RS.8,78,358/- IN THE HANDS OF THE ASSESSEE. G) CIT V. NARESH KHATTAR (HUF) [2003] 261 ITR 664 (DEL HC) - HELD - THE ADDITION IN QUESTION WAS MADE ONLY ON T HE BASIS OF THE OBSERVATIONS IN THE INTERIM ORDER PASSED BY THE COURT IN A CIVIL SUIT BETWEEN THE THREE PARTIES, INCLUDING THE ASSESSEE. THE TRIBUNAL WAS CORRECT IN HOLDING THAT MERELY BECAUSE COUNSEL FOR THE ASSESSEE MADE A STATEMENT IN THE CIVIL COURT TH AT THE TOTAL INVESTMENT IN THE PROPERLY WAS RS.13 CRORES AND ODD , IT WOULD NOT BE SUFFICIENT MATERIAL TO COME TO THE CONCLUSIO N THAT THE SAID FIGURE REPRESENTED THE ACTUAL INVESTMENT. THERE HAD TO BE SOMETHING MORE THAN THAT. THE TRIBUNALS FINDING TH AT THE [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 19 REVENUE HAD FAILED TO PROVE THAT THE TOTAL INVESTME NT OF THE ASSESSEE WAS RS. 13 CRORES WAS NOT PERVERSE. H) NEENA SYAL V. ACIT [1999] 70 ITD 62 (CHAND.) - HELD - IN THE INSTANT CASE, EVEN THE SEIZED DOCUME NT ON THE BASIS OF WHICH THE IMPUGNED ADDITION OF RS.4.83 LAK HS HAD BEEN MADE, HAD NOT BEEN FOUND AT THE RESIDENCE OF T HE ASSESSEE AND THE SAME HAD NOT BEEN SPECIFICALLY CONFRONTED T O THE ASSESSEE BEFORE MAKING THE IMPUGNED ADDITION. FURTH ER, IN ASSESSMENT OF V ADDITION OF RS.14.20 LACS FOUND AT HIS RESIDENCE HAD BEEN MADE WITHOUT DISCUSSING THE DIAR Y SEIZED AT HIS RESIDENCE. THUS, THE ADDITION OF RS.4.83 LAC S WAS NOT SUSTAINABLE IN THE CASE OF THE ASSESSEE WHEN THE AS SESSING OFFICER HAD FAILED TO COMPLY WITH THE BASIS CONDITI ONS STIPULATED IN SECTION 69. I) AMARJIT SINGH BAKSHI (HUF) [2003] 86 ITD 13 (DELHI) (TM) - HELD [PARA 54] .THE ENTIRE ADDITION RESTED ON THE SEIZED DOCUMENT AND NO OTHER MATERIAL HAD BEEN ADVERTED TO WHICH WOULD CONCLUSIVELY SHOW THAT A HU GE AMOUNT OF THE MAGNITUDE MENTIONED IN THE SEIZED DOCUMENT P ROCEEDED FROM ONE SIDE TO THE OTHER. IN HIS OWN TAX ASSESSME NT, N AT ONE STAGE TOOK THE STAND THAT THE SEIZED DOCUMENT WAS O NLY A PROJECTION OR ESTIMATE AND NOTHING ELSE. 14. ACCORDINGLY, IT IS SUBMITTED THAT THE INFERENCE DRA WN BY LD. AO IS PURELY BASED ON CONJECTURES, SURMISES AND SUSPICION AND DOES NOT HAVE SANCTION OF LAW AS HELD BY HONBL E SUPREME COURT IN SEVERAL CASES AS UNDER A. DHIRAJLAL GIRDHARILAL V. CIT [1954] 26 ITR 736 (SC) B. DHAKESWARI COTTON MILLS LTD V. CIT [1954] 26 ITR 77 5 (SC) C. LALCHAND BHAGAT AMBICA RAM V. CIT [1959] 37 ITR 288 (SC) D. UMACHARAN SHAW& BROS. V. CIT [1959] 37 ITR 271 (SC) E. OMAR SALAY MOHAMED SAIT V. CIT [1959] 37 ITR 151 (S C) [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 20 15. ATTENTION IS ALSO INVITED TO THE JUDGMENT IN THE CA SE OF CENTRAL BUREAU OF INVESTIGATION V. V.C. SHUKLA & OT HERS [1998] 3 SCC 410 (SC) WHEREIN THE HONBLE APEX COURT HAD C ONSIDERED THE EVIDENTIARY VALUE OF ANY LOOSE SHEETS OR DIARY FOUND WITH THE PARTY WHERE SEARCH WAS CONDUCTED, WHICH CAN BE USED AGAINST THIRD PARTY. RELEVANT OBSERVATIONS OF THE H ONBLE APEX COURT ARE AS UNDER: FROM THE ABOVE DEFINITIONS OF 'ACCOUNT' IT IS EVID ENT THAT IF IT HAS TO BE NARROWLY CONSTRUED TO MEAN A FORMAL STATEMENT OF TRANSACTIONS BETWEEN TWO PARTIES INCLUDING DEBTOR-C REDITOR RELATION AND ARISING OUT OF CONTRACT, OR SOME FIDUC IARY RELATIONS UNDOUBTEDLY THE BOOK MR 71/91 WOULD NOT COME WITHIN THE PURVIEW OF SECTION 34.. IF NO OTHER EVIDENCE BESIDES THE ACCOUNTS WERE GIV EN, HOWEVER STRONGLY THOSE ACCOUNTS MAY BE SUPPORTED BY THE PRO BABILITIES, AND HOWEVER STRONG MAY BE THE EVIDENCE AS TO THE HO NESTY OF THOSE WHO KEPT THEM, SUCH CONSIDERATION COULD NOT A LONE WITH REFERENCE TO S.34, EVIDENCE ACT, BE THE BASIS OF A DECREE. FROM A COMBINED READING OF THE ABOVE SECTIONS IT I S MANIFEST THAT AN ORAL OR DOCUMENTARY STATEMENT MADE BY A PAR TY OR HIS AUTHORIZED AGENT, SUGGESTING ANY INFERENCE AS TO AN Y FACT IN ISSUE OR RELEVANT FACT MAY BE PROVED AGAINST A PART Y T THE PROCEEDING OR HIS AUTHORIZED AGENT AS 'ADMISSION' B UT, APART FROM EXCEPTIONAL CASES (AS CONTAINED IN SECTION 21) , SUCH A STATEMENT CANNOT BE PROVED BY OR ON THEIR BEHALF. 16. FURTHER, RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K P VARGHESE [1981] 131 ITR 597 (SC) , ASSESSEE CANNOT BE MADE TO PROVE THE NEGATIVE OR TO DO AN IM POSSIBLE ACT. IT WAS STATED BY THE HONBLE APEX COURT IN PARA 13 IT IS A WELL-SETTLED RULE OF LAW THAT TH E ONUS OF ESTABLISHING THAT THE CONDITIONS OF TAXABIL ITY ARE FULFILLED IS ALWAYS ON THE REVENUE AND THE SECOND CONDITION B EING AS MUCH A CONDITION OF TAXABILITY AS THE FIRST, THE BU RDEN LIES ON THE REVENUE TO SHOW THAT THERE IS UNDERSTATEMENT OF THE CONSIDERATION AND THE SECOND CONDITION IS FULFILLED . MOREOVER, TO THROW THE BURDEN OF SHOWING THAT THERE IS NO UNDER STATEMENT OF THE CONSIDERATION ON THE ASSESSEE WOULD BE TO CAST AN ALMOST [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 21 IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH A NEGATIVE, NAMELY, THAT HE DID NOT RECEIVE ANY CONSIDERATION BEYOND TH AT DECLARED BY HIM. [EMPHASIS SUPPLIED] LD. AO HAS NOT BROUGHT ANY POSITIVE AND COGENT MATE RIAL ON RECORD TO ESTABLISH THAT CASH OF RS. 16,00,000 HAS IN FACT AND IN REALITY MOVED FROM THE HANDS OF THE ASSESSEE TO M/S . BHOOMI ELEGANT OR ITS ASSOCIATES. 17. THUS, IN SPITE OF SPECIFIC REQUEST MADE TO LD. AO T O GIVE AN OPPORTUNITY TO CROSS EXAMINE SHRI AKSHAY DOSHI BY T HE ASSESSEE AND ALSO TO MAKE AVAILABLE THE DOCUMENTS, RETURNS AND COMPUTATION OF INCOME AND ASSESSMENT ORDERS TO VERIFY THE TREATMENT OF RS. 16,00,000, ADVERSE INFERENCE HAS B EEN DRAWN IGNORING THE PRINCIPALS OF NATURAL JUSTICE AND SECT ION 34 OF EVIDENCE ACT. ACCORDINGLY, ADDITION MADE BASED ON S OME DATA FOUND IN DIGITAL FORM AND ASSERTION MADE BY THE PER SON IN HIS SEARCH PROCEEDINGS IS WHOLLY UNJUSTIFIED, IMPROPER, BAD IN LAW. 18. LD. CIT(A) ALSO ERRED IN NOT CONSIDERING THE SUBMIS SION OF ASSESSEE AND PROCEEDED TO SUSTAIN THE ADDITION MADE BY LD. AO U/S 69 OF RS. 16,00,000 AS INCOME FROM UNDISCLOS ED SOURCE. 19. ASSESSEE SUBMITS THAT EVEN IF THE MATTER IS SET ASI DE, THE LEGAL ISSUE OF APPLICABILITY OF PROVISIONS OF SECTI ON 153C AS AGAINST THE PROVISIONS OF SECTION 147 SHALL REMAIN TO BE ADJUDICATED. CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENTS, ADDITION MADE U/S 69 BY TREATING RS. 16 ,00,000 AS INCOME FROM UNDISCLOSED SOURCES OUGHT TO BE DELETED . [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 22 6. LD. D.R. OPPOSED THE SUBMISSIONS AND SUPPORTED T HE ORDERS OF AUTHORITY BELOW. IN RESPECT OF OBJECTION R EGARDING LEGALITY OF REOPENING OF ASSESSMENT, HE SUBMITTED THAT THERE IS NO LEGAL IMPEDIMENT PROVIDED UNDER THE ACT. THE LANGUAGE OF SECTION 147 OF THE ACT IS CLEAR THERE IS NO AMBIGUITY SO FAR THE PROVISION IS CONCERNED. AS PER T HIS SECTION THERE HAS TO BE SOME REASON WITH THE ASSESSING OFFICER THAT MAKES HIM TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. IN THE PRESENT CASE SELLER OF THE PRO PERTY ADMITTED THE FACT OF HAVING RECEIVED ON MONEY IN EXCES S OF SALE CONSIDERATION RECORDED IN THE SALE DEED. THEREFOR E, THIS REASON WAS SUFFICIENT TO BELIEVE THAT THE ASSESSEE MADE UNEXPLAINED INVESTMENT IN PROPERTY. HE SUBMITTED THAT NON-GRANTING OF CROSS EXAMINATION TO THE ASSESSEE IS NO T FATAL TO ASSESSMENT, IT IS ONLY A PROCEDURAL LAPSE. [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 23 7. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORDS AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. THE OBJECTIONS AGAINST REOPE NING OF ASSESSMENT AND MAKING ADDITIONS ARE THREE FOLD; FIR STLY, THE INFORMATION WHICH WAS WITH THE ASSESSING OFFICER W AS GATHERED AT THE BACK OF THE ASSESSEE IN A SEARCH PROCEEDING. SECONDLY, THE ASSESSEE WAS NOT GRANTED CRO SS EXAMINE AND THIRDLY, THE ASSESSING OFFICER OUGHT TO HA VE PROCEEDED U/S 153C OF THE ACT. IT IS SUBMITTED ON B EHALF OF THE ASSESSEE THAT THE ASSESSEE HAD NOT GIVEN ANY ON MONE Y TO THE ASSESSEE. IT IS ONLY THE STATEMENT MADE BY THIR D PARTY IN RESPECT OF ITS ACCOUNTS FOR WHICH THE ASSESSE E COULD NOT BE MADE LIABLE. IT IS CONTENDED THAT THE ASSE SSING OFFICER HAS DULY RECORDED THE FACT THAT SEARCH AND SURVE Y PROCEEDINGS WAS CARRIED OUT ON 05.10.2015 ON M/S EKT A & BHOOMI GROUP. THE DIRECTORS OF M/S BHOOMI GROUP, MR . AKSHAY DOSHI IN HIS POST SEARCH STATEMENT RECORDED U/ S [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 24 131 OF THE ACT DATED 28.12.2015 HAS ADMITTED THAT THE DIGITAL DATA FOUND DURING THE COURSE OF SEARCH REPRESEN T THE CASH TRANSACTIONS EXECUTED BY M/S. BHOOMI GROUP WHICH WAS NOT BEEN RECORDED IN REGULAR BOOKS OF ACCOUNTS. IT WAS FURTHER OBSERVED BY THE ASSESSING OFFICER THAT ON TH E BASIS OF SEIZED DATA, IT WAS NOTICED THAT THE ASSESSEE PAID AN AMOUNT OF RS.16,00,000/- IN CASH ON 02.01.2010 FOR T HE PURCHASE OF FLAT NO.C/604 IN PROJECT BHOOMI ELEGANT UNDERTAKEN BY M/S BHOOMI GROUP. HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE VARIOUS DECISIONS OF THE COORDINATE BENCHES AS WELL AS DIVISION BENCH OF THIS TRIBUNAL AND THE JUDGMENT OF THE HON'BLE JURISDICTION AL HIGH COURT. RELIANCE IS PLACED ON THE DECISION OF DIV ISION BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF ITO VS. ARUN KUMAR KAPOOR, ITANO.147/ASR/2010 REPORTED (2011) 16 TAXMANN.COM 373 (AMRITSAR ) . THE HON'BLE DIVISIONS BENCH OF THIS TRIBUNAL IN PARA 8 OF ITS ORDER HELD AS UNDER: [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 25 ON A PERUSAL OF THE ABOVE PROVISIONS, IT WOULD BE C LEAR THAT THE PROVISIONS OF SECTION 153C OF THE ACT WERE APPLICABLE, WHICH SUPERSEDES THE APPLICABILITY OF PROVISIONS OF SECTIONS 147 AND 148 OF THE ACT. AS WE HAVE ALREADY NOTED HEREINABOVE THAT THE DOCUMENTS WERE SEIZED DURING THE SEARCH UN DER SECTION 132 OF THE ACT AND THE SAME WAS SENT TO THE ASSESSEE'S A.O. AT AMRITSAR BY THE OFFICER AT DELHI. IN OUR VIEW, THE LEARNED CIT(A) HAS CORRECTLY OBSERVED THAT ONLY THE PROVISIONS IN WHICH ANY ASSESSMENT COULD BE MADE AGAINST THE ASSESSEE IN TH E INCOME TAX ACT WAS SECTION 153C READ WITH SECTION 153 OF THE ACT. IT IS ALSO APPARENT FROM THE RECORD THAT THE OFFICER AT D ELHI HAS MENTIONED IN HIS LETTER THAT THE NECESSARY ACTION M AY BE TAKEN AS PER LAW UNDER SECTION 153C / 148 OF THE ACT. HENCE, NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND PROCEEDINGS UNDER SECTION 147 OF THE ACT BY THE AO ARE ILLEGAL AND VOID AB INITIO. IN VIEW OF THE PROVISIONS OF SECTION 153C OF THE ACT, SECTION 147 / 148 STAND OUSTED. IN THE INSTANT CASE, THE PROCEDURE LAID DOWN UNDER SECTION 153C HAS NOT BEEN FOLLOWED BY THE A.O. AND, THEREFORE, ASSESSMENT HAS BECOME I NVALID. WE ALSO OBSERVE THAT THE CIT(A) WAS JUSTIFIED IN FOLLO WING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT AND ANOTHER, REPORTED IN (2007) 289 ITR 341, WHEREIN IT HAS BEEN HELD THAT IF THE PROCEDURE LAID DOWN IN SECTION 158BD IS NOT FOLLOWED, BLOCK ASSESSMENT PROCEEDINGS WOULD BE ILLEGAL. THE CIT(A) HAS CORRECTLY OBSERVED THAT THE PROVISIONS OF SECTION 153C ARE EXACTLY SIMILAR TO THE PROVISIONS OF SECTION 158BD OF THE ACT IN BLOCK ASSESSMENT PROCEEDINGS. THUS, CONSIDERING THE ENTIRE FACTS AND THE CIRCUMST ANCES OF THE PRESENT CASE, WE HOLD THAT THE CIT(A) WAS FULLY JUS TIFIED IN QUASHING THE REASSESSMENT ORDER. WE ALSO DO NOT FIN D ANY MERIT IN THE SUBMISSIONS OF THE LEARNED DR THAT DURING TH E COURSE OF SEARCH, IT WAS FOUND AT PREMISES OF M/S.TODAY HOMES & INFRASTRUCTURE PVT. LTD. PERTAINING TO M/S.P.R. INF RASTRUCTURE LTD. AND NOT THE ASSESSEE. IN THIS REGARD, WE MAY POINT OUT THAT THE CONTENTION RAISED BY THE LEARNED D.R. IS FACTUALLY INCORRECT AND CONTRARY TO THE AVAILABLE RECORDS OF SEIZED DOCUMEN TS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER DATE D 30-12- 2008. IN VIEW OF THE ABOVE FACTUAL DISCUSSION, WE D O NOT FIND [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 26 ANY MERIT AND SUBSTANCE IN THE CONTENTION OF THE LE ARNED D.R. THEREFORE, WE UPHOLD THE ORDER OF THE CIT(A) AND DI SMISS THE GROUND NOS.1 TO 4 OF THE APPEAL. 8. THE RELIANCE IS PLACED ON THE DECISION OF COORDINAT E BENCH OF THIS TRIBUNAL IN ITANO. 6276/DEL/2018 IN THE CASE OF SAURASHTRA COLOR TONES PVT. LTD. VS. ITO WHEREIN IT IS HELD AS UNDER: THE ABOVE REASONS FOR REOPENING OF THE ASSESSMENT S HOWS THAT DURING THE COURSE OF SEARCH INCRIMINATING MATERIAL PERTAINING TO ASSESSEE-COMPANY WERE FOUND AND SEIZED AND THAT M/S . BLUE BELL FINANCE LTD., HAS MADE INVESTMENT IN ASSESSEE- COMPANY. THE A.O. HAS SPECIFICALLY REFERRED TO THE SEIZED DO CUMENTS DURING THE COURSE OF SEARCH AS ANNEXURES B & D AND ALSO ATTACHED VARIOUS OTHER DOCUMENTS FOUND DURING THE C OURSE OF SEARCH TO THE ASSESSMENT ORDER. THE LD. D.R. ALSO A DMITTED THAT THE AFORESAID ANNEXURES WERE FOUND DURING THE COURS E OF SEARCH IN THE CASE OF JAIN GROUP. THEREFORE, WHEN INCRIMIN ATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH, T HE SAME HAVE BEEN USED IN THE CASE OF THE ASSESSEE-COMPANY. THE PROPER COURSE THE A.O. SHOULD HAVE ADOPTED IS TO PR OCEED AGAINST THE ASSESSEE-COMPANY UNDER SECTION 153C OF THE I.T. ACT INSTEAD OF RECORDING REASONS FOR REOPENING OF T HE ASSESSMENT UNDER SECTION 147 / 148 OF THE I.T. ACT. THE ISSUES INVOLVED IN THE ADDITIONAL GROUNDS ARE, THEREFORE, COVERED BY THE ORDERS OF THE DIVISION BENCH OF THE ITAT, DELHI A-B ENCH IN THE CASES OF SHRI MEER HASSAN & SHRI ALI HASSAN, DEHRAD UN (SUPRA) AND IN THE CASE OF SHRI ADARSH AGARWAL, DELHI VS., ITO, WARD- 61 (1), NEW DELHI (SUPRA). IN VIEW OF THE ABOVE, WE AR E OF THE VIEW THAT A.O. WAS NOT JUSTIFIED IN INITIATING THE RE-ASSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE I.T. ACT, 1961. THE A.O. [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 27 SHOULD HAVE PROCEEDED AGAINST THE ASSESSEE UNDER SECTION 153C OF THE I.T. ACT. 9. SIMILARLY, THE DIVISION BENCH IN THE CASE OF G. KOTESWARA RAO (2015) 64 TAXMANN.COM 159 HELD AS UNDER: 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO APPLYING THE RATIOS OF THE ABOVE MENTIONED DEC ISIONS, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OF FICER, HAS NO JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT TO REOPEN THE ASSESSMENTS IN RESPECT OF THOSE SIX ASSESSMENT YEAR S IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THE PERIOD UNDER CONSIDERATION FALLS WITHIN THE EXCLUSIVE DOMAIN OF SECTION 153A. IN THE INSTANT CASE, SINCE THE ASSESSMENT IS MADE C ONSEQUENT TO SEARCH IN ANOTHER CASE, THE ASSESSING OFFICER IS BO UND TO ISSUE NOTICE U/S 153C AND THEREAFTER PROCEED TO ASSESS OR REASSESS TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE ASS ESSING OFFICER, INSTEAD OF COMPLYING WITH THE PROVISIONS O F SECTION 153C, PROCEEDED WITH THE REASSESSMENT UNDER SECTION 147/148 WHICH IS NOT APPLICABLE TO SEARCH CASES. THEREFORE, THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3), R.W.S. 147 OF THE INCOME TAX ACT, 1961 IS ILLEGAL, ARBITRARY AND WITHOUT ANY JURISDICTION. HENCE THE ASSESSMENT ORDER DATED 31.1 2.2010 PASSED U/S 143(3) R.W.S. 147 IS QUASHED. 10. RELIANCE IS ALSO PLACED ON THE DECISION OF HON'BLE HIGH COURT OF M.P. IN THE CASE OF RAMBALLABH GUPTA VS. ACIT 288 ITR 347 (MP) . THE HON'BLE HIGH COURT HAS HELD AS UNDER: AS I HAVE OBSERVED SUPRA, SECTION 148 BEING AN INDEPENDENT SECTION, POWERS EXERCISED BY AO CANNOT BE CURTAILED IF THE [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 28 IMPUGNED NOTICE OTHERWISE SATISFIES THE REQUIREMENT OF SECTION 148 IBID. IN MY OPINION, THE ONLY FETTER PUT ON THE PO WERS OF AO IN TAKING RECOURSE TO SECTION 148 IS THAT IT CANNOT BE ISSUED IN RELATION TO THOSE SIX ASSESSMENT YEARS WHICH ARE DE FINED IN SECTION 153A IBID. THIS FETTER IS DUE TO USE OF NON OBSTANTE CLAUSE IN SECTION 153A IBID. IN ALL OTHER CASES AND FOR ALL OTHER ASSESSMENT YEARS, SECTION 148 CAN ALWAYS BE RESORTED TO SUBJECT OF COURSE TO CONDITION THAT IT MUST SATISFY THE REQUIREMENT SPECIFIED IN SECTION 148 IBID. 11. IN THE LIGHT OF RATIO LAID DOWN BY AFOREMENTIONED BINDING PRECEDENTS AND RESPECTFULLY FOLLOWING THE RAT IO LAID THEREIN. I HOLD THAT THE REOPENING OF THE ASSESSMENT IS CONTRARY TO THE RATIO DECIDED BY THE AFORESAID CASE LAWS . MOREOVER, THE REVENUE HAS NOT BROUGHT TO MY NOTICE AN Y OTHER BINDING PRECEDENTS TO TAKE A CONTRARY VIEW. 12. NOW COMING TO THE SECOND OBJECTION OF THE ASSESS EE THAT THE ASSESSEE WAS NOT PROVIDED CROSS EXAMINATION. I T IS NOT IN DISPUTE THAT THE INFORMATION WAS GATHERED AT TH E PREMISES OF THE 3 RD PARTY ADDITION IS BASED UPON THE STATEMENT OF THE 3 RD PARTY. THIS FACT IS NOT REBUTTED BY THE REVENUE, THEREFORE, IN MY CONSIDERED VIEW THE ASSESS EE [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 29 OUGHT TO HAVE BEEN PROVIDED OPPORTUNITY OF CROSS EXAMINATION. THE ASSESSING OFFICER PURELY BASED HIS F INDING ON THE STATEMENT MADE BY THIRD PARTY AND DATA RECOVERED FROM THIRD PARTY. IN MY VIEW NOT PROVIDING OPPORTUNI TY OF CROSS EXAMINATION IS EX-FACIE CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE, THEREFORE, ON THIS GROUND ALSO ASSESSM ENT SO FRAMED IS AGAINST SETTLED PRINCIPLES OF LAW. IN VIE W OF THE ABOVE, I HEREBY QUASH THE ASSESSMENT ORDER BEING CONTRAR Y TO JUDICIAL PRONOUNCEMENTS. THE AO IS DIRECTED TO DE LETE THE IMPUGNED ADDITION. 13. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 09 .09. 2020. SD/- (KU L BHARAT) JUDICIAL MEMBER INDORE; DATED : 09/09/2020 PATEL/PS [ITA NO.655/IND/2018] [ABHISHEK DHANOTIA ] 30 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE