Ridhi Industries Private Limited, Mandi Gobindgarh V. Asstt. Commisssioner of Income Tax, Patiala

ITA 73/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6702 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 09-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: RAJIV DATTA
• Keywords: Reopening of assessment; Audit objection; Period of limitation; Validity of assessment; Time period of passing order; Reason to believe
• Section: 143(3); 153A; 139(5); 147; 148; 132; 15; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 73/CHD/2017 ASSESSMENT YEAR: 2010-11 M/S RIDHI INDUSTRIES PRIVATE LIMITED, VS. TH E ACIT, MANDI GOBINDGRH CENTRAL CIRCLE, PATIALA PAN NO. AABCR9200M (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. RAJIV DATTA RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 10.10.2017 DATE OF PRONOUNCEMENT : 31.10.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX-5 [HEREINAFTER REFERRED TO AS CIT(A)] LUDHIANA DATED 26.10.2016. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- 1. THAT THE ORDER OF LD. CIT(A) IS AGAINST THE FACTS O F THE CASE AND IS BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION, WHICH IS NOT BASED ON ANY DOCUMENTS / MATERIAL FOUND DURING THE COURSE OF SEARCH. 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 11,03,000/- ON ACCOUNT OF PROFESSIONAL CHARGES INCU RRED BY THE APPELLANT COMPANY FOR BUSINESS PURPOSES. 3. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONS IDERATION ARE THAT A SEARCH OPERATION U/S 132 OF THE ACT WAS CARRIED OUT ON THE BHAWANI GROUP I.E BHAWANI INDUSTRIES (P) LIMITED AND ITS DIRECTOR S ON 14.7.2011. DURING THE COURSE OF SEARCH, BOOKS OF ACCOUNT OF THE ASSES SEE COMPANY WERE FOUND IN THE PREMISES OF SEARCHED ASSESSEE, THEREFORE, AS SESSMENT PROCEEDINGS IN THE CASE OF ASSESSEE WERE INITIATED U/S 153C OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). DURING THE ASSESSMENT PROCEED INGS U/S 153C OF THE ACT, THE ASSESSING OFFICER DISALLOWED THE EXPENDITURE OF RS. 11,03,000/- PAID TO M/S WEST END INVESTMENT AND FINANCE CONSULTANCY PVT LTD. MUMBAI AS PROFESSIONAL CHARGES, REGARDING WHICH THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD FAILED TO FURNISH THE EVIDENCES OF SERVICES OBTAINED. THOUGH THE ASSESSEE EXPLAINED THAT THIS WAS ADVANCE GIVEN TO THAT COMPANY AGAINST CONSULTANCY AS THE ASSESSEE COMPANY WAS EXP LORING OF OPPORTUNITIES FOR EXPANDING ITS BUSINESS OUTSIDE TH E STATE OF PUNJAB. THE COMPANY LATER ON ABANDONED THE PROJECT AND THE AMOU NT PAID WAS CLAIMED AS EXPENDITURE. THE ASSESSING OFFICER, HOWEVER, WA S NOT SATISFIED WITH THE ABOVE EXPLANATION AND ADDED THE SAID AMOUNT INTO TH E INCOME OF THE ASSESSEE. THE ASSESSEE UNSUCCESSFULLY CONTESTED THE APPEAL BEFORE THE CIT(A). 4. BEFORE US, THE LD. AR OF THE ASSESSEE HAS HARPED ON THE LEGAL ISSUE THAT NO INCRIMINATING MATERIAL WAS FOUND AGAINST TH E ASSESSEE IN THE SEARCHED PREMISES OF BHAWANI GROUP; ONLY BOOKS OF A CCOUNT OF THE ASSESSEE WERE FOUND THERE BUT THAT ITSELF DID NOT CONSTITUTE ANY 3 INCRIMINATING MATERIAL, ESPECIALLY WHEN NO DISCREPA NCY WAS FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE EITHER BY ASSESSIN G OFFICER OF THE SEARCHED PERSON OR OF THE ASSESSING OFFICER OF THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, THE VERY INITIAT ION OF ASSESSMENT PROCEEDINGS UNDER SECTION 153C OF THE ACT AGAINST T HE ASSESSEE WERE INVALID AND WERE LIABLE TO BE QUASHED. 5. THE LD. DR, ON THE OTHER HAND, HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. 6. ADMITTEDLY, NO INCRIMINATING MATERIAL WAS FOUND IN THE SEARCH PREMISES OF BHAWANI GROUP, EXCEPT THE BOOKS OF ACCO UNT OF THE ASSESSEE. THE SAID BOOKS OF ACCOUNT OF THE ASSESSEE WERE HAND ED OVER / TAKEN POSSESSION BY THE ASSESSING OFFICER OF THE PRESENT ASSESSEE. HOWEVER, THERE WAS NOTHING ON RECORD WHICH POINTS OUT ANY DISCREPA NCY IN THE BOOKS OF ACCOUNT THAT MAY HAVE A BEARING ON THE DETERMINATIO N OF THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER, HOWEVER, PR OCEEDED TO FRAME ASSESSMENT AFRESH BY WAY OF EXAMINING THE GENUINENE SS OF THE EXPENDITURE ETC. ADMITTEDLY, IN IN THIS CASE RETURN U/S 139(1) OF THE ACT FOR THE IMPUGNED ASSESSMENT YEAR 2010-11 WAS FILED ON 14.10 .2010. THE ASSESSMENT IN THIS CASE HAVE BECOME FINAL ON 30.9.2 011 AND NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE WITHIN THE PERIOD OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR I.E. 31.3.2011. THE ASSESSMENT UNDER NORMAL PROVISIONS OF THE ACT ALREADY STOOD CONDUCED BEFORE THE DATE OF SEARCH ON 14.7.2011. THERE IS NO SATISFACTION RECO RDED BY THE ASSESSING OFFICER THAT THE BOOKS OF ACCOUNT OR THE DOCUMENT S SEIZED OR 4 REQUISITIONED, SHOW ANY INFORMATION OR CONSTITUTE A NY INCRIMINATING MATERIAL WHICH DID NOT FORM THE PART OF RECORD OR O THERWISE HAVE A BEARING FOR MAKING THE ADDITIONS TO THE INCOME OF THE ASSES SEE. THE ISSUE RELATING TO THE VALIDITY OF ASSESSMENT MADE UNDER SECTION 15 3A WITHOUT HAVING ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTI ON U/S 132 OF THE ACT IN CASE OF COMPLETED ASSESSMENTS, EVEN WHERE THE ORIGI NAL RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT, HAS COME INTO CONSIDERATION BEFORE THE CO-ORDINATE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF THE ACIT CENT. CIR. 33, MUMBAI VS. SHRI JAYENDRA P. JHA VERI ITA NOS.2141, 2142, 2143 & 2144/M/2012 & CO NOS.248, 249, 250 & 2 51/M/2013 DECIDED ON 20.02.2014 (ONE OF US BEING PARTY TO THA T ORDER). THE TRIBUNAL HAS DISCUSSED THE ISSUE IN DETAIL AND HAS MADE THE FOLLOWING OBSERVATIONS: 8. THE LEARNED DR HAS ALSO FILED WRITTEN SUBMISSIO NS. TO STRESS HIS POINT THAT THE RETURN PROCESSED U/S. 143(1) CAN NOT BE SAID TO BE AN ASSESSMENT BUT A MERE INTIMATION, HE HAS RELI ED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF R AJESH JHAVERI STOCK BROKERS P. LTD. (2007) 291 ITR 500 ( SC). HIS CONTENTION HAS BEEN THAT IN THE CASE IN HAND THE AS SESSMENT WAS NOT DONE ORIGINALLY U/S. 143(3) HENCE THE ESTIMATIO N IN QUESTION HAS BEEN RIGHTLY MADE U/S. 153A OF THE ACT BY THE A O. HE HAS FURTHER CONTENDED THAT THE PRINCIPAL LAID DOWN BY T HE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLO BAL LOGISTICS LTD. 137 ITD 287 CAN BE APPLIED TO THE C ASE WHERE THE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 143(3) O F THE ACT AND NOT TO THE CASE WHERE THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR. SO FAR SO THE RELIANCE PLACED BY HIM IN THE CASE OF RAJES H JHAVERI STOCK BROKERS P. LTD. (SUPRA) IS CONCERNED, WE MAY OBSERVE THAT THE ISSUE BEFORE THE HONBLE SUPREME COURT IN THAT CASE WAS REGARDING THE REOPENING OF THE ASSESSMENT U/S. 147 OF THE ACT. THE HONBLE SUPREME COURT HELD THAT THE PROPOS ITION OF LAW LAID DOWN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF 5 ADANI EXPORTS V. DEPUTY CIT, (1999) 240 ITR 224 ( GUJ) WAS NOT APPLICABLE IN THAT CASE. IN THE CASE OF ADANI EXPORTS (SUPRA), WHERE THE ASSESSMENT WAS MADE U/S. 143(3) OF THE ACT, AND THE AO DID NOT HOLD ANY BELIEF THAT INCOME HAD ESCAPED ASSESSMENT ON ACCOUNT OF ERRONEOUS COMPUTATION, THE RE- OPENING U/S. 147 MADE MERELY ON THE BASIS OF AUDIT OBJECTIONS WAS HELD TO BE BAD IN LAW BY THE HONBLE HIGH COURT . IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUP RA), THE HONBLE SUPREME COURT WHILE INTERPRETING THE PROVIS IONS OF SECTION 143(1) AND SECTION 143(3) (AS WERE IN FORCE DURING THE RELEVANT TIME PERIOD) HAS HELD THAT IN CASE OF ASSE SSMENT MADE U/S. 143(3), THE ASSESSMENT IS MADE BY THE AO BY AP PLYING HIS MIND WHEREAS IN CASE OF PROCESSING OF RETURN U/S. 1 43(1) OF THE ACT, THERE IS NO APPLICATION OF MIND BY THE AO AND AS SUCH, IF A NEW MATERIAL COMES INTO THE KNOWLEDGE OF THE AO AND THE REQUIREMENTS OF SECTION 147 OF THE ACT ARE FULFILLE D, THE AO IS FREE TO INITIATE PROCEEDINGS U/S. 147 AND THE FAILU RE TO TAKE STEPS U/S. 143(3) WILL NOT RENDER THE AO POWERLESS TO INI TIATE RE- ASSESSMENT PROCEEDINGS EVEN WHEN INTIMATION U/S. 14 3(1) HAD BEEN ISSUED. SO THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA) RELA TES TO THE POWERS OF THE AO FOR RE-OPENING OF ASSESSMENT U/S. 147IN RELATION TO THE ASSESSMENT PROCEEDINGS CONDUCTED UN DER SECTION 143(1) VIZ-A-VIZ U/S 143(3) OF THE ACT. (AS WERE IN FORCE DURING THE RELEVANT PERIOD, SINCE SECTION 143 HAS BEEN FUR THER AMENDED VIDE FINANCE ACT 2008 W.E.F 01.04.2008.) IT IS TO B E NOTED THAT POWERS OF THE AO TO RE-OPEN AN ASSESSMENT U/S. 147 IS SUBJECT TO LIMITATION OF TIME PERIOD AS PRESCRIBED U/S. 149 OF THE ACT. SO THE REASONABLE CONCLUSION WILL BE THAT WHETHER THE RETURN WAS PROCESSED U/S. 143(1) OR U/S. 143(3), IF THE AO HAS A REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT, HE CAN RE-OPEN THE ASSESSMENT U/S. 147 BY ISSUING NOTICE U/S. 148 BUT WITHIN THE TIME LIMIT AS PRESCR IBED U/S. 149 OF THE ACT. 10. SO FAR SO, THE QUESTION AS TO THE PROCESSING OF RETURN U/S. 143(1) VIZ-A-VIZ ASSESSMENT MADE U/S. 143(3) IS CON CERNED, IT MAY FURTHER BE OBSERVED THAT AFTER PROCESSING OF RE TURN U/S. 143(1) THE SAME CAN BE ASSESSED U/S. 143(3) BY ISSU E OF NOTICE U/S. 143(2) SUBJECT TO ITS ISSUANCE WITHIN THE LIMI TATION PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN IS FURNISHED AS PER THE PROVISO TO CLAUSE (II) OF SECT ION 143(2) [AS WAS EXISTING AT THE TIME OF RELEVANT ASSESSMENT YEA R]. ONCE THE LIMITATION PERIOD AS PRESCRIBED VIDE PROVISO TO CLA USE (II) OF SUB SECTION (2) OF SECTION 143 IS EXPIRED, IT IS NOT OP EN TO THE AO TO ASSESS THE INCOME U/S. 143(3) OF THE ACT AND THE RE TURN FILED BY 6 THE ASSESSEE U/S. 139 IS DEEMED TO BE ACCEPTED, WHI CH HOWEVER, CAN BE RE-OPENED U/S. 147 OF THE ACT SUBJECT TO THE FULFILLMENT OF INGREDIENTS OF SECTION 147 AND WITHIN THE TIME PERI OD AS PRESCRIBED U/S. 149 OF THE ACT, AS DISCUSSED IN THE PRECEDING PARA. SO UNDER SUCH CIRCUMSTANCES IF THE RETURN IS PROCESSED U/S. 143(1) AND NOT U/S. 143(3) AND AFTER THE PRESC RIBED PERIOD OF LIMITATION, THE SAME CANNOT BE ASSESSED U/S. 143 (3) THOUGH IT MAY BE INTERPRETED AS MERE INTIMATION ASSESSMENT OR OTHERWISE, BUT THE SAME SHALL BE DEEMED TO BE ACCEPTED BY THE AO AND IT WILL NOT HAVE ANY DIFFERENT COLOUR OTHER THAN THE R ETURN WHICH IS PROCESSED U/S. 143(3) OF THE ACT. THE ONLY DISTINGU ISHING FEATURE AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA), WOULD BE TH AT IF TO A SET OF FACTS AND CIRCUMSTANCES, THE AO HAS APPLIED HIS MIND AND HE WAS OF THE BELIEF THAT THERE WAS NO ESCAPEMENT OF I NCOME THEN FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE A CT, HE IS PRECLUDED, ON THE BASIS OF SAME FACTS AND CIRCUMSTA NCES, TO SAY THAT HE HAS REASON TO BELIEVE THAT INCOME OF THE AS SESSEE HAS ESCAPED ASSESSMENT. WHEREAS IN CASE OF RETURNS PROC ESSED U/S. 143(1), SINCE THE AO DOES NOT APPLY HIS MIND, SUCH A DEFENSE IS NOT AVAILABLE TO THE ASSESSEE. HOWEVER, THAT PROPOS ITION OF LAW DOES NOT HELP THE REVENUE IN THE PRESENT CASE WHICH IS A CASE OF ASSESSMENT/RE-ASSESSMENT U/S. 153A OF THE ACT. 11. ADMITTEDLY, IN THE CASE IN HAND, THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT BUT THE SAME HAS ATTAINED FI NALITY DUE TO THE EXPIRY OF LIMITATION PERIOD OF TWELVE MONTHS FR OM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED. HENCE, TH E ASSESSMENT IS DEEMED TO BE COMPLETED AND NOT PENDING ON THE DA TE OF SEARCH ON 14.08.2008. ADMITTEDLY, NO INCRIMINATING MATERIA L WAS FOUND FROM THE PREMISES OF THE ASSESSEE DURING THE SEARCH U/S. 132 OF THE ACT. THE SPECIAL BENCH OF THE TRIBUNAL IN THE C ASE OF ALL CARGO GLOBAL LOGISTICS LTD.(SUPRA), HAS HELD THAT ASSESSMENT U/S. 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) V. ACIT (2013) 259 CTR 281 HAS HELD THAT IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SEARCH OR REQUISITION, THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENT DOES NOT ARISE. UNDER SUCH CIR CUMSTANCES, IT IS NOT OPEN TO THE ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGI NAL AND ALREADY CONCLUDED ASSESSMENT, IN THE CASE OF ASSESS MENT U/S. 153A IN PURSUANCE OF SEARCH ACTION. HONBLE HIGH CO URT REJECTED THE ARGUMENT OF THE LEARNED COUNSEL FOR AS SESSEE TO THE EFFECT THAT ONCE THE NOTICE U/S. 153A IS ISSUED, TH E ASSESSMENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND THE ASSESSEE. IT 7 HAS BEEN FURTHER HELD BY THE HONBLE HIGH COURT THA T THE PROVISIONS OF SECTION 153A TO 153C CANNOT BE INTERP RETED TO BE FURTHER INNINGS TO THE AO AND/OR ASSESSEE BEYOND TH E PROVISIONS OF SECTION 139(RETURN OF INCOME), 139(5) (REVISED R ETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263(R EVISION OF ORDERS) OF THE ACT. THE HONBLE HIGH COURT HAS FURT HER OBSERVED THAT THE WORDS ASSESS OR RE-ASSESS HAVE BEEN US ED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONS TRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLE TED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS TH EY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPOR T THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. THE HONBLE HIGH COURT WHILE REPRODUCING THE PROPOS ITION OF LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE C ASE OF K P VARGHESE V. ITO (1981) 24 CTR 358 THAT IT IS RE COGNIZED RULE OF CONSTRUCTION THAT A STATUTORY PROVISO MUST BE SO CONSTRUED, IF POSSIBLE, THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED HAS OBSERVED THAT IF THE ARGUMENT OF THE C OUNSEL FOR THE ASSESSEE WAS TO BE ACCEPTED, IT WOULD MEAN THAT EVEN IN CASE WHERE THE APPEAL ARISES OUT OF THE COMPLETED ASSESS MENT HAS BEEN DECIDED BY THE CIT(A) OR TRIBUNAL AND THE HIGH COURT, ON A NOTICE ISSUES U/S. 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED BY THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS T O BE REPELLED AND/OR AVOIDED AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF K P VARGHESE (SUPRA). ALMOST SIMILAR PROPOSITION OF LAW HAS BEEN LAID DOW N BY THE CO-ORDINATE BENCH OF THE TRIBUNAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S DEEPA RESTAURANT & BAR P. LTD. IN ITA NO.1336/M/2012 DECIDED ON 05.02.2014 (ONE OF US BEI NG THE PARTY OF THE SAID ORDER) WHEREIN, IT HAS BEEN OBSER VED THAT WHERE THE SCRUTINY ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS SET ASIDE BY THE HIGHER AUTHORITIES THAT, ITSELF, C ANNOT BE A GROUND FOR RE-OPENING THE ASSESSMENT U/S. 147 OF TH E ACT ON THE PLEA THAT SINCE SCRUTINY ASSESSMENT HAS BEEN ANNULL ED ON THE LEGALITY OF NOTICE U/S. 143(2) OF THE ACT AND THE C ASE HAS NOT BEEN HEARD AT ANY OF THE STAGE HENCE, THERE WAS A R EASON TO BELIEVE THAT THE INCOME ASSESSED IN THIS CASE HAS E SCAPED ASSESSMENT. THE CO-ORDINATE BENCH IN THE ABOVE SAID CASE HAS FURTHER HELD THAT SUCH AN ACTION CANNOT BE ALLOWED UNDER THE 8 LAW AS IT MAY AMOUNT TO DEFEATING ONE OF THE STATUT ORY PROVISIONS IN THE GRAB OF ACTING UNDER OTHER PROVIS IONS OF THE STATUTE. ONCE ASSESSMENT U/S. 143(3) HAD BEEN ANNUL LED BY HIGHER AUTHORITIES ON THE GROUND OF LEGALITY OF NOT ICE U/S. 143(2) OF THE ACT, RE-OPENING U/S. 147 ON THAT VERY GROUND WOULD MEAN NOTHING ELSE BUT THE ABUSE OF PROCESS OF LAW. HENCE , THE CONTENTION OF THE LEARNED DR THAT AS THE RETURN WAS PROCESSED U/S. 143(1) AND IT WAS A MERE INTIMATION HENCE, THE AO HAD REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMEN T AND IT WAS OPEN TO THE AO TO REASSESS THE INCOME U/S. 153A , EVEN WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION, IS NOT TENABLE. 7 THE ABOVE DECISION HAS ALSO BEEN FOLLOWED BY A NOTHER CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ATUL BAROT (HUF) VS. DCIT IN ITA NO.2889/M/2011 & ORS. DECIDED ON 26.02.2014. FURTH ER, THE SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA) HAS NOW BEEN APPROVED BY THE HONBLE BOMBAY HIGH COURT IN T HE CASES OF ALL CARGO LOGISTICS ITA NO.1969 OF 2013 AND CONTINEN TAL WAREHOUSING CORPORATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) DECIDED BY COMMON ORDER, WHEREIN, IT HAS B EEN HELD THAT IN RELATION TO THE ASSESSMENTS WHICH HAVE ALREADY BEEN CONCLUDED, THE AO WAS PRECLUDED FROM MAKING ADDITIONS ON ANY OTHER IS SUE EXCEPT RELATING OR CONCERNING TO THE INCRIMINATING MATERIAL FOUND DURI NG THE SEARCH ACTION. THE AO CANNOT DISTURB THE ASSESSMENT ORDER OR REASS ESSMENT ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIAL GATHERED IN THE COURSE OF PROCEEDINGS U/S 153A OF THE ACT ESTABLISHES THAT RE LIEF GRANTED UNDER THE FINAL ASSESSMENT/REASSESSMENT WAS CONTRARY TO THE F ACT UNEARTHED DURING THE COURSE OF 153A PROCEEDINGS. IDENTICAL VIEW HAS BEEN TAKEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS LTD. ITA NO.36 OF 2009 DECIDED VIDE ORDER DATED 29-10-2010 A ND BY THE HON'BLE 9 DELHI HIGH COURT IN THE RECENT DECISION IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS (SUPRA) . WE MAY MENTION HERE THAT THE HON'BLE DELHI HIGH COURT HAS ALSO DISCUSSE D AND DISTINGUISHED THE CASE OF SMT. DAYAWANTI VS. CIT IN ITA 357/2015 & OTHERS DATED 27.10.2016, WHICH AUTHORITY HAS BEEN RELIED UPON BY THE LD. DR . IT HAS BEEN HELD THAT IN THE CASE OF SMT. DAYAWANTI VS. CI T, INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION, HOWEVE R, IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS (SUPRA), NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION, HENCE, THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE NOT JU STIFIED. IN VIEW OF THE ABOVE DISCUSSION, THIS ISSUE IS ALSO FOUND COVERED IN FAVOUR OF THE ASSESSEE BY THE VARIOUS DECISIONS OF THE HIGH COURTS OF BOMBAY & DELHI AS DISCUSSED ABOVE, AND IS DECIDED A CCORDINGLY. 8. IN VIEW OF THE ABOVE THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.10.2017 SD/- SD/- ( ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 ST OCT, 2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR