ASST CIT CC 1 (1), MUMBAI V. SHRI. BABUBHAI V PATEL, NAVI MUMBAI

ITA 7470/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6928 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Salary income; Principle of natural justice; Accommodation entries; Onus to prove
• Section: 69C; 153A; 13; 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) I.T.A. NO. 7470/MUM/2019 (ASSESSMENT YEAR 2012-13) I.T.A. NO. 7471/MUM/2019 (ASSESSMENT YEAR 2013-14 ) ACIT, CENTRAL CIRLE-1(1) 903, 9 TH FLOOR PRATISHTHA BHAVAN OLD CGO BUILDING ANNEXE, M.K. ROAD MUMBAI-400 020. VS. SHRI BABUBHAI V. PATEL FLAT NO. 903, SHREEJI HEIGHTS, PLOT NO. A/B/C, SECTOR 46A SEAWOODS-WEST NAVI MUMBAI-400 703. PAN : AGOPP8120E (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI VIJAY MEHTA DEPARTMENT BY SHRI RAHUL RAMAN DATE OF HEARING 09.06.2021 DATE OF PRONOUNCEMENT 11.08.2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY THE REVENUE DIRECTED AGAINST T HE ORDER OF LEARNED CIT(A) 20.9.2019 FOR A.YS. 2012-13 & 2013-14. SINCE ISSUES ARE COMMON AND CONNECTED THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. GROUNDS OF APPEAL FOR A.Y. 2012-13 READ AS UNDER :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LEARNED CIT(A) WAS RIGHT IN ALLOWING THE APPEAL FILED BY THE A SSESSEE BY RELYING ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IGNORIN G THE FACT THAT ISSUE SAME AS OF THIS APPEAL IS PENDING BEFORE THE HON'BLE SUPREME COURT OF INDIA IN VARIOUS OTHER APPEALS . 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN NARROWING DOWN THE SCOPE O F ASSESSMENT U/S. 153A IN RESPECT OF COMPLETED ASSESSMENTS BY HOLDING T HAT ONLY UNDISCLOSED INCOME AND UNDISCLOSED ASSETS DETECTED DURING THE SEARCH COULD BE BROUGHT TO TAX. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS CORRECT IN HOLDING THAT THE SCOPE OF SECTI ON 153A IS LIMITED TO ASSESSING ONLY SEARCH RELATED INCOME, THEREBY DENYI NG REVENUE, THE SHRI BABUBHAI V. PATEL 2 OPPORTUNITY OF TAXING OTHER ESCAPED INCOME THAT COMES TO THE NOTICE OF THE ASSESSING OFFICER. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD.CIT(A) WAS CORRECT IN HOLDING THAT INFORMATION AVAILABLE WI TH THE REVENUE DEPARTMENT AS WELL THE INFORMATION YIELDED DURING THE POST SEARCH PROCEEDINGS AND CONNECTED TO THE SEARCH AND SEIZURE P ROCEEDINGS REGARDING UNSECURED LOANS, IN THE FORM OF STATEMENT RE CORDED ON OATH IS NOT INCRIMINATING MATERIAL? 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED B Y THE ASSESSEE AND DELETING THE ADDITION OF RS.4,15,00,000/- BEING THE ADDITION MADE U/S 68 OF THE I.T.ACT 1961 THOUGH THE CREDITWORTHINESS OF THE PARTIES FROM WHOM THE SHARE APPLICATION MONEY WAS RECEIVED AND GENUINEN ESS OF THE SAID TRANSACTION WERE NOT PROVED. 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED B Y THE ASSESSEE AND DELETING THE ADDITION OF RS.3,28,110/- BEING THE ADD ITION MADE U/S 69C OF THE I.T.ACT 1961 OF INTEREST EXPENSES ON UNPROVEN UNS ECURED LOANS IN CONSEQUENCE OF DELETING THE ADDITIONS MADE UNDER SECTI ON 68 OF THE I.T. ACT, 1961 AS ABOVE. 3. BRIEF FACTS OF THE CASE ARE THAT THE DDIT(INV)-U NIT, THANE HAD CONDUCTED A SEARCH OPERATION ON BALAJI GROUP OF CASES ON 28.0 1.2015. THE PREMISES OF THE ASSESSEE FLAT NO 903, SHREEJI HEIGHTS, PLOT NO. A/B/C, SECTOR 46A, SEAWOODS (W), NAVI MUMBAI & B-47, SHAKTIDHARA SOCIE TY, THAKKAR BAPPA NAGAR, AHMEDABAD WERE ALSO COVERED VIDE WARRANT NOS . PN/ADDL.DIT/INV/ KALYAN/240& 248 DATED 05.01.2015. THE CASE WAS CENT RALISED WITH THIS CHARGE VIDE ORDER NO.PCIT4/HQ/CENTRA/BALAJI/2015-16 DATED 11.01.2016. ACCORDINGLY A NOTICE U/S.153A WAS ISSUED ON 18.05.2 016 WHICH WAS DULY SERVED ON THE ASSESSEE. IN RESPONSE TO THE SAID NOT ICE, THE ASSESSEE FILED RETURN OF INCOME U/S.153A ELECTRONICALLY ON 22.06.2 016 DECLARING A TOTAL INCOME OF RS. 12,03,419/-.THE ASSESSEE IS A PARTNER IN M/S. SHREENATHJI CORPORATION, WHICH IS ENGAGED IN THE BUSINESS OF CO NSTRUCTION. DURING THE YEAR, THE ASSESSEE HAS DECLARED INCOME FROM SALARY, BUSINESS AND OTHER SOURCES. DURING THE COURSE OF SEARCH & SEIZURE ACT ION, IT WAS OBSERVED THAT THE ASSESSEE FIRM HAD CLAIMED UNSECURED LOANS FROM SEVERAL OUTSTATION COMPANIES. DURING THE COURSE OF STATEMENT OF SHRI N ITIN GAJIPARA, ASSESSEE'S SHRI BABUBHAI V. PATEL 3 SON, WHO IS AT THE HELM OF THE OVERALL AFFAIRS OF T HE GROUP CONCERNS OF GAJIPARA FAMILY, WAS ASKED TO NAME THE PERSONS WHO HAD ARRAN GED THE UNSECURED LOAN FROM SUCH OUTSTATION COMPANIES TO MUMBAI BASED PART NERSHIP FIRM. FURTHER, HE WAS ASKED TO NAME DIRECTORS/PROMOTERS OF SUCH CO MPANIES, WHO HAD PROVIDED UNSECURED LOAN TO THE ASSESSEE FIRM. BUT H E COULD NOT REPLY TO ANY OF THE QUESTIONS. 4. THEREFORE THE ASSESSING OFFICER REFERRED TO POST SEARCH INQUIRIES AND COMMUNICATION UNDER SECTION 131(1)(D) AND REPORT OF DDIT(INV.), KOLKATA. THE ASSESSING OFFICER PROCEEDED TO HOLD THAT THESE ARE BOGUS ACCOMMODATION ENTRIES BASED UPON REPORT FROM DDIT, KOLKATA AND TH E INQUIRY MADE THEREFROM. HE CONCLUDED AS UNDER : THE ASSESSEE DURING THE YEAR HAS ACCEPTED LOANS FRO M THE FOLLOWING COMPANIES CONTROLLED AND MANAGED BY SHRI. NAVNEET S INGHANIA, WHICH IS USED BY HIM ONLY FOR PROVIDING ACCOMMODATION ENTRIES . THE DETAILS OF THE RETURNED INCOME TABULATED IN PARA 3.5 ABOVE SHOWS THA T THE CREDITWORTHINESS OF THE LENDER IS NOT PROVED AT ALL; S.NO. NAME AMOUNT 1 ELGIN SALES PROMOTION LTD. 3000000 2 TRISTAR AGENCIES P. LTD. 5000000 3 WELON ADVISORY SERVICES PVT. LTD. 2500000 TOTAL 10500000 3.8.1 FURTHER, THE ASSESSEE DURING THE YEAR HAS AC CEPTED UNSECURED LOANS FROM THE FOLLOWING PARTIES; S.NO. NAME OF THE PARTY LOAN 1. ALISHAN ESTATES P. LTD 6000000 2. GROWFAST REALTORS P. LTD 9500000 3. KHUSBOO COMPLEX PVT. LTD. 2500000 4. NATURAL HOUSING P. LTD. 2500000 5. NEELKAMAL DEAL COMM P. LTD. 2000000 6. SAMPARK ADVISORY SERVICES PVT. LTD. 2500000 7. SKYLIGHT DISTRIBUTORS P. LTD. 4000000 8. OLEANDER MANUFACTURE & CREDIT LTD. 2000000 31000000 SHRI BABUBHAI V. PATEL 4 3.8.2 TO PROVE THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE LENDER, THE ASSESSEE HAS FURNISHED A COPY OF RET URN OF INCOME AND BANK STATEMENT OF THE LENDERS. HOWEVER, PERUSAL OF THE DOCU MENTS REVEALS THAT THE ABOVE LENDERS ARE ALSO KOLKATA BASED COMPANIES AND H AVE SAME FEATURES AS THE COMPANIES MENTIONED IN PARA ABOVE. FOR E.G. THE R ETURNED INCOME OF THESE LENDER COMPANIES IS ALSO MEAGER, BUT HAVE CLAIM ED HUGE REFUNDS, AS DEPICTED IN THE TABLE BELOW AND THE BANK STATEMENTS SHO W THAT THERE IS NO SUBSTANTIAL BUSINESS ACTIVITY EXCEPT INWARD AND OUTW ARD TRANSACTIONS OF LOANS. THESE ARE THE TRAITS FOUND COMPANIES WHICH A RE ENGAGED ONLY IN THE ACTIVITY OF PROVIDING ACCOMMODATION ENTRIES. WITH THES E INHERENT FEATURES, THE GENUINENESS OF THE TRANSACTIONS AS WELL AS THE CRED ITWORTHINESS OF THE LENDERS IS NOT PROVED SATISFACTORILY; S.NO. NAME OF THE LENDER RETURNED INCOME SHARE PREMIUM 1. KHUSBOO COMPLEX PVT. LTD. 164847 945945000 2. SAMPARK ADVISORY SERVICES PVT. LTD. 530952 495145000 3. ALISHAN ESTATES P. LTD. 96330 2195110 4. GROWFAST REALTORS P. LTD. 381290 1633760 5. NATURAL HOUSING P. LTD. 899380 28245710 6. NEELKAMAL DEAL COMM P. LTD. 369710 6139330 7. SKYLIGHT DISTRIBUTORS P. LTD. 375870 6279840 8. OLEANDER MANUFACTURE & CREDIT LTD. (-)17768552 220522000 3.9 AS PER SECTION 68 OF THE ACT, THE IDENTITY & CREDIT WORTHINESS OF THE PARTY AND THE GENUINENESS OF THE TRANSACTION NEEDS TO BE PROV ED & THE ONUS TO PROVE ALL THESE FACTORS SQUARELY LIES UPON THE ASSES SEE. IN THE PRESENT CASE, THE CREDIT WORTHINESS OF ALL THE ABOVE PARTIES, MENTIONE D IN PARA 3.8 & PARA 3.8.1, AS WELL THE GENUINENESS OF TRANSACTIONS IS NOT P ROVED SATISFACTORILY FOR AFORESAID REASONS. FURTHER, IT MAY ALSO BE MENTIONED HERE THAT THE COMPANIES LISTED ABOVE AT SR.NO. 1 TO 7 ARE COVERED B Y THE STATEMENT OF MR. PRAVEEN AGARWAL DATED 11.02.2015, WHEREIN HE HAS CA TEGORICALLY ACCEPTED THAT HE IS IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES THROUGH THIS COMPANY IN THE GUISE OF SHARE APPLICATION MONEY, UN SECURED LOANS, BOGUS BILLING ETC. THE COMPANY LISTED AT SR. NO. 8 ABOVE IS ALSO A KOLKATA BASED COMPANY WHICH IS IDENTIFIED AS ENTRY PROVIDER BY THE DDIT(INV), KOLKATA. 3.10 IN THE CASE OF SUMATI DAYAL VS. CIT [1995] 214 I TR 801 (SC), THE HON'BLE SUPREME COURT HAS HELD THAT 'IN VIEW OF SECTION 68, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR, THE SAME MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE A SSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEE ABO UT THE NATURE AND SOURCE THEREOF IS, IN THE OPINION OF THE ASSESSING OFFICER , NOT SATISFACTORY. IN SUCH CASE THERE IS PRIMA FACIE EVIDENCE AGAINST THE ASSESSEE, VIZ., THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT THE SAME, THE SAID EVIDENC E BEING UNREBUTTED, CAN BE USED AGAINST HIM BY HOLDING THAT IT IS A RECEIPT OF AN INCOME NATURE.' IN THE CASE OF MCDOWELL & CO LTD (1985) 154 ITR 148, THE FOLLOWING OBSERVATION WAS MADE BY THE SUPREME COURT, 'COLOURABLE DEVICES CANNOT BE SHRI BABUBHAI V. PATEL 5 PART OF TAX PLANNING AND IT IS WRONG TO ENCOURAGE O R ENTERTAIN THE BELIEF THAT IF ITS HONOURABLE TO AVOID THE PAYMENT OF TAX BY RESOR TING TO DUBIOUS METHODS. IT IS THE OBLIGATION OF EVERY CITIZEN TO PAY THE TAXES HONESTLY WITHOUT RESORTING TO SUBTERFUGES.' 3.12 IN THE CASE OF CIT V SRI MEENAKSHI MILLS LTD 6 3 ITR 609, THE HON'BLE SUPREME COURT OBSERVED THAT 'FOR EXAMPLE, THE COURT HAS POWER TO DISREGARD THE CORPORATE ENTITY IF IT IS USED FOR TAX EVASION OR TO CIRCUMVENT TAX OBLIGATION.' 3.13 IN THE CASE OF CIT V DURGA PRASAD MORE 82 ITR 5 40, THE SUPREME COURT HAS HELD THAT ' TAXING AUTHORITIES ARE NOT REQUIRED TO PUT ON BLINK ERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALI TY OF THE RECITALS MADE IN THESE DOCUMENTS.' 3.14 IN VIEW OF THE AFORESAID DISCUSSION, AND RELYIN G UPON AFORESAID CASE LAWS, THE AMOUNT RECEIVED OF RS. 4,15,00,000/-, RECE IVED AS PER THE FOLLOWING DETAILS, IS HEREBY ADDED TO TOTAL INCOME OF THE ASSESSE E AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT; S.NO. NAME OF THE PARTY LOAN 1. ELGIN SALES PROMOTION LTD. 3000000 2. TRISTAR AGENCIES PVT. LTD. 5000000 3. WELON ADVISORY SERVICES PVT. LTD. 2500000 4. ALISHAN ESTATES P. LTD. 6000000 5. GROWFAST REALTORS P. LTD. 9500000 6. KHUSBOO COMPLEX PVT. LTD. 2500000 7. NATURAL HOUSING P. LTD. 2500000 8. NEELKAMAL DEAL COMM P. LTD. 2000000 9. SAMPARK ADVISORY SERVICES PVT. LTD. 2500000 10. SKYLIGHT DISTRIBUTORS P. LTD. 4000000 11. OLEANDER MANUFACTURE & CREDIT LTD. 2000000 TOTAL 41500000 FURTHER, THE AMOUNT SO ADDED IS COVERED BY PROVISIONS OF SEC. 115BBE OF THE IT ACT AND ACCORDINGLY IS TAXED AT A FLAT RATE OF 30%. 5. UPON ASSESSEES APPEAL LEARNED CIT(A) FOUND THAT FACTS ARE SIMILAR TO THE CASE OF GROUP CONCERN AND HIS OWN ORDER IN SHRI NIT IN B. GAJIPARA . HE REPRODUCED THAT ORDER AND THEREAFTER HELD AS UNDER :- 9.4 THE ISSUE IN GROUND NOS. 1 TO 3 OF A.Y, 2012-13 RELATES TO THE JURISDICTION OF THE ASSESSING OFFICER IN MAKING ADDI TION IN AN ASSESSMENT FRAMED U/S 153A OF THE ACT IN AN UNABATED CASE, WHER E NO INCRIMINATING MATERIAL HAS BEEN FOUND, DURING THE COURSE OF SEARCH OPERATION. THIS ISSUE IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE HON'BLE ITAT, SHRI BABUBHAI V. PATEL 6 MUMBAI IN THE CASE OF M/S. GEETANJALI SPACE PVT. LTD. REPRODUCED ABOVE, WHICH IS ON SIMILAR FACTS AND CIRCUMSTANCES. IN VIEW OF THE ORDER OF THE HON'BLE ITAT AND ALSO THE BINDING PRECEDENTS OF THE VA RIOUS HON'BLE COURTS REFERRED SUPRA, IT IS HELD THAT NO ADDITION CAN BE M ADE U/S. 153A OF THE ACT IN AN UNABATED CASE, WHERE NO INCRIMINATING MATERIA L HAS BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH OPERATION. ACCOR DINGLY, GROUND OF APPEAL NOS. 1 TO 3 FOR A.Y. 2012-13 RAISED BY THE APPELLANT A RE ALLOWED. FOLLOWING THIS APPELLATE DECISION FOR A.Y. 2012-13, THE GROUND OF APPEAL NOS. 1 TO 3 FOR A.Y. 2013-14 RAISED BY THE APPELLANT ARE ALSO ALLOWED , AS THEY ARE BASED ON IDENTICAL FACTS AND CIRCUMSTANCES. 9.5 IN THE GROUND NO. 4 OF A.Y. 2012-13, THE APPELL ANT HAD CHALLENGED THE ACTION OF THE ASSESSING OFFICER IN NOT PROVIDING CROS S-EXAMINATION OF SHRI NAVNEET SINGHANIA AND SHRI PRAVEEN AGARWAL. IN VIEW OF THE BINDING DECISIONS OF THE VARIOUS HON'BLE COURTS REFERRED SUP RA, IT IS HELD THAT NON- PROVIDING OF AN OPPORTUNITY FOR CROSS-EXAMINATION IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND THE ASSESSING OFFICER WAS LEGALLY BOUND TO GIVE AN OPPORTUNITY OF CROSS-EXAMINATION TO THE APPELLANT, BEF ORE USING THE IMPUGNED STATEMENTS AGAINST THE APPELLANT IN AN ADVER SE MANNER. ACCORDINGLY, GROUND OF APPEAL NO. 4 FOR A.Y. 2012-1 3 RAISED BY THE APPELLANT IS ALLOWED. 9.6 THE GROUND NOS. 5 TO 16 OF A.Y. 2012-13 ARE IN RELATION TO THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNSECURED LOANS U/S 68 OF THE ACT. THIS ISSUE IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE HON'BLE ITAT, MUMBAI IN THE CASE OF M/S. GEET ANJALI SPACE PVT. LTD. REPRODUCED ABOVE, WHICH IS ON SIMILAR FACTS AND CIR CUMSTANCES. IN VIEW OF THE ORDER OF THE HON'BLE ITAT IN THE CASE OF M/S. GE ETANJALI SPACE PVT. LTD., THE VARIOUS DOCUMENTARY EVIDENCES PLACED ON RECORD A ND AFTER TAKING INTO CONSIDERATION THE FACT THAT THERE IS NO ADVERSE OBSERVA TION ABOUT THE APPELLANT IN THE STATEMENTS OF SHRI NAVNEET SINGHANIA AN D SHRI PRAVEEN AGARWAL, THE ADDITION MADE BY THE AO U/S 68 OF THE A CT NEEDS TO BE DELETED, ON MERITS ALSO. ACCORDINGLY, GROUND OF APPEAL NOS. 5 TO 16 OF A.Y. 2012-13 RAISED BY THE APPELLANT ARE ALLOWED. FOLLOWING THIS AP PELLATE DECISION FOR A.Y. 2012-13, THE GROUND OF APPEAL NOS. 1 TO 3 OF A.Y. 20 14-15 RAISED BY THE APPELLANT ARE ALSO ALLOWED, AS THEY ARE BASED ON IDEN TICAL FACTS AND CIRCUMSTANCES. 9.7 THE GROUND NOS. 17 TO 29 OF A.Y. 2012-13 ARE IN RELATION TO ADDITION OF INTEREST UNDER SECTION 69C OF THE ACT. I HAVE NOTED THAT THE APPELLANT HAD NOT CLAIMED THESE INTEREST EXPENSE IN THE RETURN OF INCO ME AND FURTHER, THESE GROUNDS OF APPEAL ARE CONSEQUENTIAL IN NATURE. SIN CE, THE ADDITION OF UNSECURED LOANS U/S 68 OF THE ACT HAVE BEEN DIRECTED TO BE DELETED, CONSEQUENTIALLY THE INTEREST PAYMENT ADDITION U/S 69C O F THE ACT ALSO NEEDS TO BE DELETED. ACCORDINGLY, GROUND OF APPEAL NOS. 17 TO 29 OF A.Y. 2012-13 RAISED BY THE APPELLANT ARE ALLOWED. FOLLOWING THIS AP PELLATE DECISION FOR A.Y. 2012-13, THE GROUND OF APPEAL NOS. 4 TO 14 OF A.Y. 20 13-14, GROUND OF APPEAL NOS. 4 TO 17 OF A.Y. 2014-15 & GROUND OF APPE AL NOS. 1 TO 5 OF A.Y. 2015-16 RAISED BY THE APPELLANT ARE ALLOWED, AS THEY ARE BASED ON IDENTICAL FACTS AND CIRCUMSTANCES. SHRI BABUBHAI V. PATEL 7 6. AGAINST THE ABOVE ORDER REVENUE IS IN APPEAL BEF ORE US. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE NOTE THAT IN THE CASE OF NITIN B. GAJIPARA (SUPRA) WHICH HAS BEEN RELIED BY LEARNED CIT(A), WE HAVE UPHELD THE ORDER IN ITA NO. 7473/MU M/2019 FOR A.Y. 2012- 13 VIDE ORDER DATED 9.8.2021 BY HOLDING AS UNDER : 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. LD. COUNSEL OF THE ASSESSEE CONTENDED THAT ISSUE ON VALIDITY OF J URISDICTION IS FULLY COVERED BY HON'BLE BOMBAY HIGH COURT DECISION IN CON TINENTAL WAREHOUSE CORPORATION LTD. 374 ITR 645 AND MURALI AGRO PRODUC TS LTD. (49 TAXMANN.COM 172). 11. PER CONTRA LD. DR COULD NOT DESPITE THE PROPOSIT ION. 12. UPON CAREFUL CONSIDERATION, WE FIND OURSELVES IN AGREEMENT WITH THE ABOVE CONTENTION. EVEN REVENUE ACKNOWLEDGED THIS IN THE GROUND OF APPEAL, WHEREIN IT IS SUBMITTED THIS DEPARTMENT HAS NOT ACCEPTE D THE ORDER OF HON'BLE BOMBAY HIGH COURT AND APPEAL HAS BEEN PREFER RED TO HON'BLE SUPREME COURT. WE DO NOT FIND THIS ANY REASON TO INTER FERE WITH ORDER OF LD.CIT(A) ON THIS ISSUE. HENCE, WE HOLD THAT LD.CIT(A ) IS CORRECT IN HOLDING THAT ASSUMPTION OF JURISDICTION U/S 153A IS BAD IN ABS ENCE OF ANY INCRIMINATING MATERIAL FOUND IN SEARCH, AS THIS IS NO T A NON ABATED ASSESSMENT. AS REGARDS THE MERITS, WE FIND THAT SINCE THE ISSUE ON JURISDICTION HAS BEEN DECIDED IN FAVOUR OF ASSESSEE, ADJUDICATION ON MERITS IS ORDER ONLY OF ACADEMIC INTEREST. HENCE, WE ARE NOT E NGAGING IN THE SAME. THE SAME IS TREATED AS INFRUCTUOUS. 13. HENCE, REVENUE APPEAL IS DISMISSED. 8. WE DO NOT FIND ANY REASON TO TAKE A DIFFERENT VI EW IN THIS CASE. ACCORDINGLY, THIS ISSUE ON JURISDICTION IS DECIDED AGAINST THE REVENUE AND ISSUE ON MERIT IS TREATED AS ACADEMIC, HENCE INFRUC TUOUS. ACCORDINGLY, THIS APPEAL STANDS DISMISSED. 9. GROUND OF APPEAL FOR A.Y. 2013-14 READ AS UNDER : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LEARNED CIT(A) WAS RIGHT IN ALLOWING THE APPEAL FILED BY THE A SSESSEE BY RELYING ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IGNORIN G THE FACT THAT ISSUE SAME AS OF THIS APPEAL IS PENDING BEFORE THE HON'BLE SUPREME COURT OF INDIA IN VARIOUS OTHER APPEALS . 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN NARROWING DOWN THE SCOPE O F ASSESSMENT U/S. SHRI BABUBHAI V. PATEL 8 153A IN RESPECT OF COMPLETED ASSESSMENTS BY HOLDING T HAT ONLY UNDISCLOSED INCOME AND UNDISCLOSED ASSETS DETECTED DURING THE SEARCH COULD BE BROUGHT TO TAX. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS CORRECT IN HOLDING THAT THE SCOPE OF SECTI ON 153A IS LIMITED TO ASSESSING ONLY SEARCH RELATED INCOME, THEREBY DENYI NG REVENUE, THE OPPORTUNITY OF TAXING OTHER ESCAPED INCOME THAT COMES TO THE NOTICE OF THE ASSESSING OFFICER. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD.CIT(A) WAS CORRECT IN HOLDING THAT INFORMATION AVAILABLE WI TH THE REVENUE DEPARTMENT AS WELL THE INFORMATION YIELDED DURING TH E POST SEARCH PROCEEDINGS AND CONNECTED TO THE SEARCH AND SEIZURE P ROCEEDINGS REGARDING UNSECURED LOANS, IN THE FORM OF STATEMENT RE CORDED ON OATH IS NOT INCRIMINATING MATERIAL? 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED B Y THE ASSESSEE AND DELETING THE ADDITION OF RS.1,16,00,000/- BEING THE ADDITION MADE U/S 68 OF THE I.T.ACT 1961 THOUGH THE CREDITWORTHINESS OF THE PARTIES FROM WHOM THE SHARE APPLICATION MONEY WAS RECEIVED AND GENUINEN ESS OF THE SAID TRANSACTION WERE NOT PROVED. 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED B Y THE ASSESSEE AND DELETING THE ADDITION OF RS. 12,69,698/- BEING THE A DDITION MADE U/S 69C OF THE I.T.ACT 1961 OF INTEREST EXPENSES ON UNPROVEN U NSECURED LOANS IN CONSEQUENCE OF DELETING THE ADDITIONS MADE UNDER SECTI ON 68 OF THE I.T. ACT, 1961 AS ABOVE. 10. SINCE FACTS ARE IDENTICAL OUR ADJUDICATION FOR A.Y. 2012-13 ABOVE APPLIES MUTATIS MUTANDIS FOR THIS YEAR ALSO. HENCE, THIS AP PEAL IS ALSO DISMISSED. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE STAND DISMISSED. PRONOUNCED IN THE OPEN COURT ON 11.8.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 11/08/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT SHRI BABUBHAI V. PATEL 9 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI