ASST CIT CC 1 (1), MUMBAI V. SHRI. NITIN B GAJIPARA, NAVI MUMBAI

ITA 7473/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9192 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2021
• 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: Reassessment proceedings
• Section: 69C; 143(3); 142(1); 80HHC; 153A; 143(2); 13; 153; 68; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) & SHRI PAVAN KUMAR G ADALE (JM) I.T.A. NO. 7473/MUM/2019 (ASSESSMENT YEAR 2012-13) ACIT,CC - 1(1) 903, 9 TH FLOOR PRATHISHTA BHAWAN OLD C.G.O.BUILDING M.K.ROAD, MUMBAI-400 020 VS. NITIN B GAJIPARA FLAT NO.903, SHREEJI HEIGHTS, PLOT NO.A/B/C, SEC.46A SEAWOODS(W) NAVI MUMBAI-400 703 PAN : AHEPG8385K ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI VI JAY MEHTA DEPARTMENT BY SHRI RAHUL RAMAN DATE OF HEARING 09.06. 2021 DATE OF PRONOUNCEMENT 09 .08 .2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-47 DATED 20.09.2019 AND PERTAINS TO ASSESSMENT YEAR 20 12-13. 2. THE GROUNDS OF APPEAL READ AS UNDER : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS RIGHT IN ALLOWING THE APPEAL FILED BY THE ASSESSEE BY RELYING ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IGNORING THE FACT THAT IS SUE SAME AS OF THIS APPEAL IS PENDING BEFORE THE HON'BLE SUPREME COURT OF INDIA I N VARIOUS OTHER APPEALS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS CORRECT IN NARROWING DOWN THE SCOPE OF ASSESSMENT U /S, 153A IN RESPECT OF COMPLETED ASSESSMENTS BY HOLDING THAT 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 SECTION 153A I S LIMITED TO ASSESSING ONLY SEARCH RELATED INCOME, THEREBY DENYING REVENUE, THE OPPORT UNITY OF TAXING OTHER ESCAPED INCOME THAT COMES TO THE NOTICE OF THE ASSESSING OF FICER. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) WAS CORRECT IN HOLDING THAT INFORMATION AVAILABLE WITH THE REVENUE DEPARTMENT AS WELL THE INFORMATION YIELDED DURING THE POST SEARCH PROCEEDI NGS AND CONNECTED TO THE SEARCH NITIN B GAJIPARA 2 AND SEIZURE PROCEEDINGS REGARDING UNSECURED LOANS, IN THE FORM OF STATEMENT RECORDED ON OATH IS NOT INCRIMINATING MATERIAL? 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED BY THE ASSESSE S AND DELETING THE ADDITION OF RS.4,56,00,000/- BEING THE ADDITION MADE U/S 68 OF THE IT. ACT 1961 THOUGH THE CREDITWORTHINESS OF THE PARTIES FROM WHOM THE SHARE APPLICATION MONEY WAS RECEIVED AND GENUINENESS OF THE SAID TRANSACTION WERE NOT PR OVED. 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS CORRECT IN ALLOWING THE APPEAL FILED BY THE ASSESSE E AND DELETING THE ADDITION OF RS. 6,24,807/- BEING THE ADDITION MADE U/S 69C OF THE I .T.ACT 1961 OF INTEREST EXPENSES ON UNPROVEN UNSECURED LOANS IN CONSEQUENCES OF DELE TING THE ADDITIONS MADE U/S.68 OF THE I.T.ACT 1961 AS ABOVE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS A PARTNER OF M/S SHREENATHJI CORPORATION, WHICH IS ENGAGED IN TH E BUSINESS OF CONSTRUCTION. DURING THE YEAR UNDER CONSIDERATION, THE MAIN SOURC E OF INCOME DECLARED BY THE APPELLANT IS INCOME FROM HOUSE PROPERTY, BUSINESS A ND OTHER SOURCES. A SEARCH & SEIZURE OPERATION U/S. 132(1) OF THE ACT WAS CONDUC TED ON THE APPELLANT ON 28/01/2015 BY THE DDIT(INV), UNIT, THANE. CONSEQUENT TO THE SEARCH OPERATION, NOTICES U/S. 15 3A OF THE ACT WERE ISSUED TO THE APPELLANT AND ACCORDINGLY, RETURNS OF INCOME WE RE FILED. SUBSEQUENTLY NOTICES U/S. 142(1) AND 143(2) OF THE ACT WERE ISSUED AND S ERVED ON THE APPELLANT IN THE ASSESSMENT ORDERS PASSED BY THE AO, ADDITIONS HAD B EEN MADE ON ACCOUNT OF UNSECURED LOANS AND INTEREST ON UNSECURED LOANS, 4. AGAINST THE ABOVE ORDER ASSESSEE APPEALED BEFOR E LD.CIT(A). 5. AS REGARDS THE CHALLENGE TO JURISDICTION, LD.C IT(A) HELD AS UNDER:- 11.0 AT THE OUTSET, I HAVE NOTED THAT THE CASE OF THE APPELLANT FOR A.Y. 2012-13 IS AN UNABATED ONE. IN THIS CASE, THE ORIGINAL RETURN OF INCOME WAS FILED BY THE APPELLANT U/S. 139 OF THE ACT, DECLARING A TOTAL INCOME OF RS . 11.88.750/- ON 31 SR MARCH, 2013. HENCE, THE LAST DATE FOR ISSUANCE OF NOTICE U/S. 14 3(2) OF THE ACT WAS 30 TH SEPTEMBER, 2013. HOWEVER, NO NOTICE U/S 143(2) OF THE ACT HAD BEEN ISSUED TO THE APPELLANT, WITHIN THE PRESCRIBED MANDATORY TIME LIMIT OF SIX M ONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN HAD BEEN FILED. NITIN B GAJIPARA 3 11.1 IT IS PERTINENT TO NOTE THAT THE SEARCH OPER ATION IN THE CASE OF THE APPELLANT COMPANY WAS CONDUCTED ON 28 TH JANUARY, 2015. HENCE, AS ON THE DATE OF SEARCH, NO ASSESSMENT PROCEEDINGS WERE PENDING FOR THE A.Y. 20 12-13. FURTHER, EVEN THE TIME LIMIT FOR ISSUING NOTICE U/S. 143(2) OF THE ACT HAD EXPIRED, AS ON THE DATE OF SEARCH. THUS, THIS IS A CASE OF ALREADY CONCLUDED AND COMPL ETED ASSESSMENT AND AS SUCH, THE ASSESSING OFFICER IS EMPOWERED TO MAKE ADDITION IN THE PROCEEDINGS U/S 153A OF THE ACT, ONLY ON THE BASIS OF INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH OPERATION CARRIED OUT ON THE APPELLANT. NO INCRIMINATING MATERIAL FOUND DURING SE ARCH OPERATION ON THE APPELLANT: 12.0 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS FILED THE COPIES OF THE PANCHANAMA DATED 28.01.2015 AND 26.03.2015 D RAWN IN THE NAME OF THE APPELLANT AT THE TIME OF THE SEARCH OPERATION. A PE RUSAL OF THE PANCHANAMAS CLEARLY REVEAL THAT NO INCRIMINATING MATERIAL HAD BEEN FOUN D DURING THE COURSE OF SEARCH OPERATION, IN RELATION TO THE UNSECURED LOANS OR TH E INTEREST PAYMENTS, WHICH HAD BEEN ADDED BACK BY THE ASSESSING OFFICER IN THE ASSESSME NT ORDER PASSED U/S. 153A OF THE ACT. THE PANCHANAMAS ALONG WITH THE ATTACHED ANNEXU RE MAKES IT APPARENT THAT DURING THE COURSE OF SEARCH OPERATION, ONLY CERTAIN CASH, JEWELLERY AND ONE BROKERAGE BILL WAS FOUND AND SEIZED BY THE INVESTIGATION WING . 12.1 I HAVE ALSO GONE THROUGH THE ASSESSMENT ORD ER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 153A OF THE ACT AND TAKEN NOT OF THE FACT THAT THERE IS NOT EVEN A WHISPER ABOUT ANY INCRIMINATING DOCUMENT OR MATERIA L, WHICH HAD BEEN FOUND DURING THE COURSE OF SEARCH OPERATION. THE ASSESSING OFFIC ER, WHILE MAKING THE ADDITION ON ACCOUNT OF UNSECURED LOANS AND INTEREST HAD NOT REF ERRED TO ANY INCRIMINATING / ADVERSE MATERIAL BEING FOUND DURING THE COURSE OF S EARCH OPERATION IN RELATION TO SUCH ADDITIONS. I HAVE ALSO NOTED THAT NO INCRIMINATING MATERIAL HAD BEEN FOUND DURING THE COURSE OF SEARCH OPERATION ON THE APPELLANT IN RESP ECT OF ANY OF THE LENDERS, THE UNSECURED LOANS FROM WHOM HAD BEEN ADDED BACK BY TH E AO. 12.2 THE ABOVE STATED FACTS ARE FURTHER REINFORCED FROM THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ITSELF, W HICH CLEARLY STATES THAT IN THIS CASE ENQUIRIES WERE CONDUCTED BY ISSUING COMMISSION U/S. 131(L)(D) OF THE ACT AND IT WAS ON THE BASIS OF THE STATEMENTS RECORDED, THE ADDITI ONS HAVE BEEN MADE IN THE IMPUGNED ASSESSMENT ORDER. THESE FACTS CLEARLY SHOW THAT THE CONTENTION OF THE APPELLANT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATION CONDUCTED ON THE APPELLANT, IN RELATION T O THE UNSECURED LOANS & INTEREST IS CORRECT. NITIN B GAJIPARA 4 6. THEREAFTER, HE REFERRED TO VARIOUS CASE LAWS O N THE SUBJECT INCLUDING THE FOLLOWING:- 13.13 THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION [374 ITR 645], HAS HELD THAT WHEN THE ASSESSMENT HAS ATTAINED FINALITY, THEN THE AO WHILE PASSING THE IN DEPENDENT ASSESSMENT ORDER U/S 153A OF THE ACT CAN'T DISTURB THE ASSESSMENT / REAS SESSMENT ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIALS GATHERED IN THE COUR SE OF THE PROCEEDINGS U/S 132 OF THE ACT ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FI NALIZED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COU RSE OF SEARCH OPERATION. 13.14 IN THE CASE REFERRED, SUPRA, THE HON'BLE BOMBAY HIGH COURT HAS UPHELD THE FOLLOWING OBSERVATIONS OF HON'BLE ITAT:- 'I. ON A PLAIN READING OF SECTION 153A OF THE INCOM E-TAX ACT, IT BECOMES CLEAR THAT ON INITIATION OF THE PROCEEDINGS UNDER SECTION 153A, I T IS ONLY THE ASSESSMENT / REASSESSMENT PROCEEDINGS THAT ARE PENDING ON THE DA TE OF CONDUCTING SEARCH UNDER SECTION 132 OR MAKING REQUISITION UNDER SECTION 132 A OF THE ACT STAND ABATED AND NOT THE ASSESSMENTS/REASSESSMENTS ALREADY FINALIZED FOR THOSE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE ACT. II. BY A CIRCULAR NO. 8 OF 2003 DATED 18-9-2003 (SEE 26 3 ITR (ST) 61 AT 107) THE CBDT HAS CLARIFIED THAT ON INITIATION OF PROCEEDING S UNDER SECTION 153A, THE PROCEEDINGS PENDING IN APPEAL, REVISION OR RECTIFIC ATION PROCEEDINGS AGAINST FINALIZED ASSESSMENT/ REASSESSMENT SHALL NOT ABATE. IT IS ONLY BECAUSE, THE FINALIZED ASSESSMENTS/REASSESSMENTS DO NOT ABATE, THE APPEAL REVISION OR RECTIFICATION PENDING AGAINST FINALISED ASSESSMENT/REASSESSMENTS WOULD NO T ABATE. III. THEREFORE, THE ARGUMENT OF THE REVENUE, THAT O N INITIATION OF PROCEEDINGS UNDER SECTION 153A, THE ASSESSMENTS/REASSESSMENTS FINALIS ED FOR THE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE INCOME-TAX ACT ST AND ABATED CANNOT BE ACCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT MADE UNDER SEC TION 153A(1) WHAT STANDS REVIVED IS THE PENDING ASSESSMENT/REASSESSMENT PROC EEDINGS WHICH STOOD ABATED AS PER SECTION 153A(1).' 13.15 A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BL E BOMBAY HIGH COURT (NAGPUR BENCH) IN CASE OF MURLI AGRO PRODUCTS LTD VS. CIT 49 TAXMAN.COM 172IN ITA NO 36 OF 2009, WHEREIN IT HAS BEEN HELD THAT ON INITIATION OF PROC EEDINGS U/S. 153A, IT IS ONLY THE ASSESSMENT PROCEEDINGS THAT ARE PENDING ON THE DATE OF CONDUCTING SEARCH U/S. 132 OR MAKING REQUISITION U/S. 132A OF THE ACT THAT STAND ABATED AND NOT THE ASSESSMENTS ALREADY FINALIZED. THE RELEVANT EXCERPT S OF THE JUDGMENT ARE REPRODUCED HEREUNDER:- NITIN B GAJIPARA 5 '9. WHAT SECTION 153A CONTEMPLATES IS THAT, NOTWITH STANDING THE REGULAR PROVISIONS FOR ASSESSMENT/ REASSESSMENT CONTAINED IN THE IT AC T, WHERE SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECT ION 132A ON OR AFTER 31/5/2003 IN THE CASE OF ANY PERSON, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME WITHIN TH E TIME STIPULATED THEREIN, IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDI NG THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCT ED OR REQUISITION IS MADE AND THEREAFTER ASSESS OR REASSESS THE TOTAL INCOME FOR THOSE ASSESSMENT YEARS. THE SECOND PROVISO TO SECTION 153A PROVIDES FOR ABATEMENT OF A SSESSMENT/REASSESSMENT PROCEEDINGS WHICH ARE PENDING ON THE DATE OF SEARCH /REQUISITION. SECTION 153A(2) PROVIDES THAT WHEN THE ASSESSMENT MADE UNDER SECTIO N 153A(L) IS ANNULLED, THE ASSESSMENT OR REASSESSMENT THAT STOOD ABATED SHALL STAND REVIVED. 10. THUS ON A PLAIN READING OF SECTION 153A OF THE INCOME-TAX ACT, IT BECOMES CLEAR THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153 A, IT IS ONLY THE ASSESSMENT/REASSESSMENT PROCEEDINGS THAT ARE PENDIN G ON THE DATE OF CONDUCTING SEARCH UNDER SECTION 132 OR MAKING REQUISITION UNDE R SECTION 132A OF THE ACT STAND ABATED AND NOT THE ASSESSMENT/REASSESSMENTS ALREADY FINALIZED FOR THOSE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE ACT BY A CI RCULAR NO.8 OF 2003 DATED 18-9- 2003 (SEE 263 ITR (ST) 61 AT 107) THE CBDT HAS CLAR IFIED THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153A, THE PROCEEDINGS PEN DING IN APPEAL REVISION OR RECTIFICATION PROCEEDINGS AGAINST FINALIZED ASSESSM ENT/REASSESSMENT SHALL NOT ABATE. IT IS ONLY BECAUSE, THE FINALIZED ASSESSMENTS/REASS ESSMENTS DO NOT ABATE, THE APPEAL, REVISION OR RECTIFICATION PENDING AGAINST FINALIZED ASSESSMENTS/REASSESSMENTS WOULD NOT ABATE. THEREFORE, THE ARGUMENT OF THE REVENUE, THAT ON INITIATION OF PROCEEDINGS UNDER SECTION 153A, THE ASSESSMENTS/REASSESSMENTS F INALIZED FOR THE ASSESSMENT YEARS COVERED UNDER SECTION 153A OF THE INCOME-TAX ACT ST AND ABATED CANNOT BE ACCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT MADE UNDER SEC TION 153A(1) WHAT STANDS REVIVED IS THE PENDING ASSESSMENT/REASSESSMENT PROC EEDINGS WHICH STOOD ABATED AS PER SECTION 153A(1). 11. IN THE PRESENT CASE, AS CONTENDED BY SHRI MANI, LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSMENT FOR THE ASSESSMENT YEAR 1998-99 WAS FINALIZED ON 29-12-2000 AND SEARCH WAS CONDUCTED THEREAFTER ON 3-12-2003. THERE FORE, IN THE FACTS OF THE PRESENT CASE, INITIATION OF PROCEEDINGS UNDER SECTION 153A WOULD NOT AFFECT THE ASSESSMENT FINALIZED ON 29-12-2000. 12. ONCE IT IS HELD THAT THE ASSESSMENT FINALIZED O N 29.12.2000 HAS ATTAINED FINALITY, THEN THE DEDUCTION ALLOWED UNDER SECTION 80HHC OF T HE INCOME-TAX ACT AS WELL AS THE LOSS COMPUTED UNDER THE ASSESSMENT DATED 29-12-2000 WOULD ATTAIN FINALITY. IN SUCH A CASE, THE A.O. WHILE PASSING THE INDEPENDENT ASSESS MENT ORDER UNDER SECTION 153A READ WITH SECTION 143(3) OF THE IT. ACT COULD NOT H AVE DISTURBED THE ASSESSMENT/REASSESSMENT ORDER WHICH HAS ATTAINED FI NALITY, UNLESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS UNDER SEC TION 153A OF THE INCOME-TAX ACT ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FINALI ZED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE O F 153A PROCEEDINGS. NITIN B GAJIPARA 6 13. IN THE PRESENT CASE, THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHED DURING THE SEARCH OR DURING THE 153A PROC EEDINGS WHICH WOULD SHOW THAT THE RELIEF UNDER SECTION 80 HHC WAS ERRONEOUS. IN S UCH A CASE, THE A.O. WHILE PASSING THE ASSESSMENT ORDER UNDER SECTION 153A REA D WITH SECTION 143(3) COULD NOT HAVE DISTURBED THE ASSESSMENT ORDER FINALISED ON 29 .12.2000 RELATING TO SECTION 80 HHC DEDUCTION AND CONSEQUENTLY THE C.I. T. COULD NO T HAVE INVOKED JURISDICTION UNDER SECTION 263 OF THE ACT.' 13.16 IN THE ABOVE MENTIONED JUDGMENT, THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT NO ADDITION CAN BE MADE IN RESPECT OF ASSESSME NTS WHICH HAVE BECOME FINAL, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURS E OF SEARCH. IT HAS BEEN HELD THAT ONCE THE ORIGINAL ASSESSMENT HAS ATTAINED FINALITY, THEN THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER U/S. 153A R.W.S. 143(3 ) CANNOT DISTURB THE ASSESSMENT/ REASSESSMENT ORDER WHICH HAD ATTAINED FINALITY, UNL ESS THE MATERIAL GATHERED DURING THE COURSE OF THE SEARCH PROCEEDINGS ESTABLISHES SO METHING CONTRARY TO IT. IF THERIS NOTHING ON RECORD TO SUGGEST THAT ANY INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, THE AO, WHILE PASSING ORDER U/S. 153A R.W.S . 143(3) CANNOT DISTURB THE ORIGINAL ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT. 7. FURTHER, HE CONCLUDED AS UNDER:- 13.36 TO CONCLUDE, IN THE CASE OF COMPLETED ASSE SSMENTS, WHERE NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, THE ASSESSMENT U/S.153A OF THE ACT IS TO BE MADE ON ORIGINALLY ASSESSED INCOME AND NO ADDITI ON OR DISALLOWANCE CAN BE MADE DE HORS THE INCRIMINATING EVIDENCES RECOVERED DURIN G THE COURSE OF SEARCH. 11.1 A.Y. 2012-13 RELATES TO THE JURISDICTION OF THE ASSESSING OFFICE R IN MAKING ADDITION IN AN ASSESSMENT FRAMED U/S 153A OF THE AC T IN AN UNABATED CASE, WHERE NO INCRIMINATING MATERIAL HAS BEEN FOUND, DURING THE C OURSE OF SEARCH OPERATION. THIS ISSUE IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE HON'BLE ITAT, MUMBAI IN THE CASE OF M/S. GEETANJALI SPACE PVT. LT D. REPRODUCED ABOVE, WHICH IS ON SIMILAR FACTS AND CIRCUMSTANCES. IN VIEW OF THE ORD ER OF THE HON'BLE ITAT AND ALSO THE BINDING PRECEDENTS OF THE VARIOUS HON'BLE COURT S REFERRED SUPRA, IT IS HELD THAT NO ADDITION CAN BE MADE U/S. 153A OF THE ACT IN AN UNA BATED CASE, WHERE NO INCRIMINATING MATERIAL HAS BEEN FOUND OR SEIZED DUR ING THE COURSE OF SEARCH OPERATION. ACCORDINGLY, GROUND OF APPEAL NOS. 1 TO 3 FOR A.Y. 2012-13 RAISED BY THE APPELLANT ARE ALLOWED. 8. LD.CIT(A) FURTHER ALSO HELD THAT ADDITION IS TO BE DELETED ON MERITS ALSO BY OBSERVING AS UNDER:- 11.3 THE GROUND NOS.5 TO 13 OF AY 2012-13 ARE IN R ELATION TO ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNSECURED LO ANS U/S.68 OF THE ACT. THIS NITIN B GAJIPARA 7 ISSUE IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE HONBLE ITAT, MUMBAI IN THE CASE OF M/S. GEETANJALI SPACE P VT.LTD. REPRODUCED ABOVE, WHICH IS ON SIMILAR FACTS AND CIRCUMSTANCES. IN VIEW OF THE ORDER OF THE HONBLE ITAT IN THE CASE OF M/S. GEETANJALI SPACE P VT.LTD., THE VARIOUS DOCUMENTARY EVIDENCES PLACED ON RECORD AND AFTER TA KING INTO CONSIDERATION THE FACT THAT THERE IS NO ADVERSE OBSERVATION ABOUT THE APPELLANT IN THE STATEMENTS OF SHRI NAVNEET SINGHANIA AND SHRI PRAVE EN AGARWAL, THE ADDITION MADE BY THE AO U/S 68 OF THE ACT NEEDS TO BE DELETE D ON MERITS ALSO. ACCORDINGLY, GROUND OF APPEAL NOS. 5 TO 13 OF AY 20 12-13 RAISED BY THE APPELLANT ARE ALLOWED. 9. AGAINST THE ABOVE ORDER REVENUE IS IN APPEAL BEFOR E US. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. LD. COUNSEL OF THE ASSESSEE CONTENDED THAT ISSUE ON VALIDITY OF JURISD ICTION IS FULLY COVERED BY HONBLE BOMBAY HIGH COURT DECISION IN CONTINENTAL W AREHOUSE CORPORATION LTD. 374 ITR 645 AND MURALI AGRO PRODUCTS LTD. 49 T AXMANN.COM 172. 11. PER CONTRA LD. DR COULD NOT DESPITE THE PROPOSITI ON. 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 ACCEPTED TH E ORDER OF HONBLE BOMBAY HIGH COURT AND APPEAL HAS BEEN PREFERRED TO HONBLE SUPREME COURT. WE DO NOT FIND THIS ANY REASON TO INTERFERE 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 ABSENCE OF ANY INCR IMINATING MATERIAL FOUND IN SEARCH, AS THIS IS NOT A NON ABATED ASSESSMENT. AS REGARDS THE MERITS, WE FIND THAT SINCE THE ISSUE ON JURISDICTION HAS BEEN DECI DED IN FAVOUR OF ASSESSEE, ADJUDICATION ON MERITS IS ORDER ONLY OF ACADEMIC IN TEREST. HENCE, WE ARE NOT ENGAGING IN THE SAME. THE SAME IS TREATED AS INFRUC TUOUS. 13. HENCE, REVENUE APPEAL IS DISMISSED. NITIN B GAJIPARA 8 PRONOUNCED IN THE OPEN COURT ON 09 .08.2021 SD/- SD/- (PAVAN KUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 09/08/2021 SR.PS. THIRUMALESH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) ITAT, MUMBAI