Alok Bhartia, Bangalore V. Deputy Commissioner of Income-tax, Bangalore

ITA 855/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5404 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: H N KHINCHA
• Keywords: Revision of order; Income from undisclosed sources; Search and seizure; Double taxation relief; Opportunity of being heard; Block assessment
• Section: 143(3); 153A; 32; 147; 131; 148; 263; 132; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER ITA NOS.855 & 856 (BANG) 2016 (ASSESSMENT YEAR : 2007-08) SHRI ALOK BHARTIA NO.101, PARIJAT APARTMENTS, NO.45, 1 ST FLOOR, RACE COURSE ROAD, BANGALORE -560 001 PAN: ADTPB8355K AND SMT ALPANA BHARTIA, NO.209, RAMANASHREE CHAMBERS, NO.37, LADY CURZON ROAD,, BANGALORE -560 001 PAN NO.ADUPB5981G APPELLANTS VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1), BANGALORE RESPONDENT ASSESSEE BY : SHRI H.N.KHINCHA, CA REVENUE BY : SHRI SANJAY KUMAR, CIT DR DATE OF HEARING : 26-04-2017 DATE OF PRONOUNCEMENT : -05-2017 O R D E R PER SHRI A.K.GARODIA, AM BOTH THESE APPEALS ARE FILED BY TWO DIFFERENT BUT R ELATED ASSESSEES AND THESE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)-II, BANGALORE BOTH DATED 30-03-2014 FOR THE ASSESSMENT YEARS 2007-08. ITA NOS.855 & 856(B)2016 2 BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS TILL THE ASSESSMENT STAGE ARE NOTED BY THE LD. CIT(A) IN HIS ORDER IN THE CASE OF SHRI ALOK BHARTIA IN ITA N O.855(B)/2016 AND IN THE CASE OF SMT. ALPANA BHARTIA, IN ITA NO.856(B)/ 2016 AT PARA-7.1 & 7.2 AND THESE PARA-7.1 & 7.2 ARE HEREIN BELOW REPRO DUCED FOR THE SAKE OF READY REFERENCE; 7.1 THE APPELLANT WAS SUBJECTED TO SEARCH PROCEEDINGS U/S 132 OF THE IT ACT, 1961 ON 25-08- 2011. IN THE COURSE OF SEARCH PROCEEDINGS A STATEM ENT ON OATH WAS RECORDED FROM THE APPELLANT. THE APPELLANT SAID IN HER STATEMENT THAT ONLY HER HUSBA ND KNOWS ABOUT THE BANK ACCOUNTS, IMMOVABLE PROPERTIES ETC. THE APPELLANTS HUSBAND MR. ALOK BHARTIA HAD ADMITTED IN THE STATEMENT U/S 132(4) THAT THE SAID ACCOUNT NO.5091468103 IN HSBC GENEVA IS IN THE NAME OF MR. ALOK BHARTIA AND MRS. ALPANA BHARTIA AND IT IS A JOINT ACCOUNT. 7.2 THE SWORN STATEMENT WAS FOLLOWED UP WITH A LETTER FROM THE APPELLANTS HUSBAND DATED 29-08-201 1. IN THAT HE SAID THAT IN ORDER TO AVOID THE HASSLES AND TO BUY PEACE, HE AGREED TO OFFER THE DECLARATION FO R EXTRA INCOME, AS PER CALCULATION ENCLOSED IN ANNEXU RE. IN THE ANNEXURE, HE HAS OFFERED RS.5,98,40,617/-(US D 13,50,804 @RS.44.30 /USD (FEB.2007) AS ADDITIONAL INCOME DECLARED AS PER LETTER TO DDIT UNIT II(2). THEREFORE, THE UNDISCLOSED INCOME WAS ADMITTED IN T HE SWORN STATEMENT U/S 132(4) AS ALSO IN THE LETTER FI LED BEFORE DDIT AFTER A FEW DAYS. ITA NOS.855 & 856(B)2016 3 HOWEVER, WHILE FILING THE RETURN OR INCOME FOR THE YEAR, IN RESPONSE TO NOTICE U/S 153A OF THE IT ACT, 196 1, THE APPELLANT DID NOT OFFER ANY INCOME ON THE ABOVE ACCOUNT. IN THE SHOW CAUSE ISSUED, APPELLANT WAS A LSO ASKED TO FURNISH A CONFIRMATION FROM HSBC GENEVA STATING THAT THE SAID BANK ACCOUNT DOES NOT BELONG TO MRS. ALPANA BHARTIA. FAILURE TO SUBSTANTIATE, THE DEPOSITS WERE TO BE BROUGHT TO TAX IN THE HANDS OF THE APPELLANT, MRS. ALPANA BHARTIA AS THE SAID ACCOUNT WAS A JOINT ACCOUNT. THE APPELLANT HAS REPLIED TO T HE SHOW CAUSE NOTICE DATED 25-02-2014 AS UNDER; I HAVE NOT AT ANY PINT OF TIME MADE ANY DISCLOSUR E /STATEMENT U/S 132(4) OF THE ACT. THERE BEING NO STATEMENT THERE IS NO KNOWLEDGE OF ANY BANK ACCOUNT AS IT IS REFERRED TO IN THE LETTER. THERE IS THEREF ORE, NO QUESTION OF ANY ADDITION TO MY INCOME. ANY STATEME NT MADE BY ANY PERSON IS NOT RELEVANT TO/BINDING ON ME . 3. IN THE CASE OF SHRI ALOK BHARTIA, IN ITA NO.855( B)/2016 PARA 7.1. & 7.2 READ AS UNDER; 7.1 THE APPELLANT WAS SUBJECTED TO SEARCH PROCEEDINGS U/S 132 OF THE IT ACT, 1961 ON 25-08- 2011. IN THE COURSE OF SEARCH PROCEEDINGS A STATEM ENT ON OATH WAS RECORDED FROM THE APPELLANT. IN THE COU RSE OF THE STATEMENT, THE APPELLANT WAS SHOWN THE DETAI LS OF HIS BANK ACCOUNT IN HSBC BANK, GENEVA. THE EXISTENCE OF THIS ACCOUNT WAS ACCEPTED THEN BY THE APPELLANT AND HE HAD AGREED TO OFFER THE UNDISCLOSE D INCOME IN RESPECT OF THIS BANK ACCOUNT TO TAX. ITA NOS.855 & 856(B)2016 4 7.2 THE SWORN STATEMENT WAS FOLLOWED UP WITH A LETTER FROM THE APPELLANT DATED 29-08-2011. IN THAT HE SAID THAT IN ORDER TO AVOID THE HASSLES AND TO BUY PEACE, HE AGREED TO OFFER THE DECLARATION FOR EXTRA INCOME, AS PER CALCULATION ENCLOSED IN ANNEXURE, HE HAS OFFERED RS.5,98,40,617/- (US D 13,50,804 @RS.44.30 /USD (FEB.2007) AS ADDITIONAL INCOME DECLARED AS PER LETTER TO DDIT UNIT II(2). THEREFO RE, THE UNDISCLOSED INCOME WAS ADMITTED IN THE SWORN STATEMENT U/S 132(4) AS ALSO IN THE LETTER FILED BE FORE DDSIT AFTER A FEW DAYS. HOWEVER, WHILE FILING THE RETURN OF INCOME FOR THE YEAR, IN RESPONSE TO NOTICE U/S 153A OF THE IT ACT, `1961, THE APPELLANT DID NOT OFFER ANY INCOME ON TH E ABOVE ACCOUNT AND ULTIMATELY, THE AO MADE THE ADDITION AS STATED ABOVE. 4. BEING AGGRIEVED, BOTH THESE ASSESSEES CARRIED T HE MATTER IN APPEAL BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS AN D THEREFORE, FURTHER APPEALS HAVE BEEN FILED BY THESE TWO ASSESSEES BEFO RE US. 5. IN COURSE OF HEARING BEFORE US, LD. AR OF THE A SSESSEE SUBMITTED THAT UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE DEL HI BENCH OF THE TRIBUNAL IN THE CASE OF SHYAM SUNDAR JINDAL VS ACIT IN ITA NO.5448/DEL/2016 DATED 10-04-2017 HAS DECIDED SIMIL AR ISSUE AND THE ITA NOS.855 & 856(B)2016 5 MATTER HAS BEEN RESTORED BACK TO THE FILE OF AO FOR A FRESH DECISION AFTER CONFRONTING THE ASSESSEE WITH THE DOCUMENTS RELATIN G TO THE ASSESSEE AND THE SAID DOCUMENTS SHOULD BE UNAUTHENTIC DOCUMENTS. HE SUBMITTED THAT THE COPY OF THIS TRIBUNAL ORDER IS AVAILABLE ON PAG ES-341 391 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT THE KOLKATA BENCH OF THE TRIBUNAL HAS ALSO DECIDED SIMILAR ISSUE IN THE CASE OF SHRI BISHWANATH GARODIA IN ITA NOS.853 & 854/KOL/2016 DATED 21-09-2016 AND COP Y OF THIS TRIBUNAL ORDER IS AVAILABLE ON PAGES-392-411 OF THE PAPER BO OK. HE SUBMITTED THAT IN THIS CASE, THE TRIBUNAL HAS HELD THAT THE ASSESS MENTS FOR THE RELEVANT YEARS HAD BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AND THEREFORE, THE ADDITION MADE BY THE AO HAS BEEN DELETED IN THA T CASE. THEREAFTER, HE SUBMITTED THAT IN VIEW OF THESE TRIBUNAL JUDGMENTS, IN THE PRESENT TWO CASES ALSO, THE ADDITION MADE BY THE AO SHOULD BE D ELETED AND IF NOT DELETED, IT SHOULD BE RESTORED BACK TO THE FILE OF THE AO FOR A FRESH DECISION AS HAS BEEN HELD BY THE DELHI BENCH OF THE TRIBUNAL . 5.1 AS AGAINST THIS LD. DR OF THE REVENUE SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. 6. HE HAS ALSO SUBMITTED THAT IT IS NOTED BY THE A O ON PAGE-9 OF THE ASSESSMENT ORDER IN THE CASE OF SHRI ALOK BHARTIA, THAT ON 29/08/11, SHI ALOK BHARTIA FILED A LETTER IN COURSE OF POST SEARC H PROCEEDINGS AND IN THIS LETTER ALSO, HE HAS AGREED FOR DECLARATION OF EXTRA INCOME IN THE PRESENT YEAR TO THE EXTENT OF RS.5,98,40,617/-. HE ALSO SU BMITTED THAT THE SEARCH WAS CONDUCTED ON 25-08-2011 AND THEREFORE, AT THE T IME OF FILING THIS ITA NOS.855 & 856(B)2016 6 LETTER ON 29-08-2011, IT CANNOT BE SAID THAT THERE WAS ANY DURESS ON THE ASSESSEE AND THEREFORE, THIS LETTER OF ASSESSEE IS OF GREAT SIGNIFICANCE. HE ALSO SUBMITTED THAT ON PAGE-2 IN PARA-4 OF THE ASSE SSMENT ORDER ALSO, IT IS NOTED BY AO THAT IN THE SWORN STATEMENT RECORDED U/ S 131 ON 25-08- 2011, SHRI ALOK BHARTIA, ADMITTED THAT THE AMOUNT I N THE BANK ACCOUNT I.E. HSBC, GENEVA ARE NOT REFLECTED IN THE BOOKS OF ACCOUNT AND OFFERED TO ADMIT THEM AND DECLARED EXTRA INCOME. SUBSEQUENTLY , ON 29-08-2011, THE LETTER WAS FILED AS PER WHICH THE UNDISCLOSED I NCOME WAS DECLARED AT RS.5,98,40,617/- BEING THE VALUE OF USD1350O AT THE RATE OF RS.44.30 PER USD. THEREAFTER, HE SUBMITTED A COPY OF THE LETTER DATED 08-01-2015 ISSUED BY LD.CIT(CENTRAL) BANGALORE TO THE STANDING COUNSEL SHRI JEEVAN NEERALGI IN RESPECT OF PROPOSAL FOR LAUNCHING PROSE CUTION PROCEEDINGS U/S 276C(1) IN CASE OF SHREE ALOK BHARTIA AND POINTED O UT THAT AS PER THIS LETTER, FOR THE PRESENT YEAR, A DEMAND OF RS.210,02 ,226/- WAS RAISED ON SHRI ALOK BHARTIA IN RESPECT OF THIS ADDITION OF R S.5,98,40,617/- AND AGAINST THIS DEMAND, THE ASSESSEE HAS MADE PAYMENT OF RS.2.00 CRORES ON 28-03-2004 AND RS.5,82,500/- ON 18-06-2014 AND T HERE WAS A REFUND ADJUSTMENT OF RS.2,83,104/- AND THE NET OUTSTANDING PAYMENT IS ONLY RS.1,36,658/. HE SUBMITTED THAT THIS FACT THAT TH E ASSESSEE HAS MADE PAYMENT OF THE TAX ALSO GOES TO SHOW THAT THE ASSES SEE AGREES TO THE OFFER OF DISCLOSING EXTRA UNACCOUNTED INCOME IN THIS REGA RD. HE FURTHER SUBMITTED THAT AS PER PARA-8 OF THE SAME LETTER DAT ED 31-07-2013, A FORMAT FOR CONSENT WAS ISSUED TO SHRI ALOK BHARTIA AND SMT. ALPANA BARTIA FOR FILLING UP THE FORM AND GIVING THEIR CON SENT FOR OBTAINING THE ITA NOS.855 & 856(B)2016 7 INFORMATION ABOUT BANK ACCOUNT IN HSBC, GENEVA, BUT TILL JANUARY, 2015, THESE ASSESSEES HAVE NOT GIVEN THEIR CONSENT AS PER THIS LETTER. IN FACT, TILL NOW, THE ASSESSEE HAS NOT GIVEN THEIR CONSENT AND I F THE ASSESSEE NOW GIVE THEIR CONSENT FOR OBTAINING THE INFORMATION THEN AL SO, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO FOR FRESH DECIS ION AFTER OBTAINING THE INFORMATION ABOUT THE BANK ACCOUNTS IN HSBC, GENEVA BUT WITHOUT SUCH CONSENT OF THE ASSESSEE, THERE WILL BE NO PURPOSE S ERVED BY RESTORING BACK THE MATTER TO THE FILE OF THE AO. HE PLACED RELIANC E ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS; A) DCIT VS KAMAL PASHA IN ITA NO.4459B)/2015 & CO N O.128(B)/2015 DATED 8-11-2016 B) CANARA HOUSING DEV. CO. VS DCIT 274 CTR 122(KAR. ) C) W.P.NO.3172 OF 2015 IN THE CASE OF SOIGNEE R KOT HARI VS DCIT DATED 05- 04-2016..WHEREIN IT WAS HELD THAT IF THE PERSON IS NOTHING TO HIDE, THE PERSON WOULD HAVE CO-OPERATED IN OBTAINING THE BANK STATEMENT. D) CIT VS DR.P.SASIKUMAR387 ITR 8 (KER.) E) SMT DAYAWANTI VS CIT 75 TAXMAN.COM 308(DEL.) F)NAVDEEP DHINGRA VS CIT 232 TAXMAN425(P&H) G)BHAGIRATH AGGARWAL VS CIT 351 ITR 143(DEL.) H) CIT V S ABDUL RAZAK 350 ITR 71 (KER.) I) PR.CIT VS M/S NAU NIDHI OVERSEAS PVT.LTD. IN ITA NO.58/2017 DATED 03- 02-2017 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL WE EXAMINE THE APPLICABILITY OF TWO TRIBUNAL ORDERS ON WHICH R ELIANCE HAS BEEN PLACED BY THE LD. AR OF THE ASSESSEE AS NOTED ABOVE. THE FIRST TRIBUNAL ORDER IS OF KOKATA BENCH OF THE TRIBUNAL RENDERED IN THE CAS E OF SHRI BISHWANATH GARODIA VS DCIT (SUPRA). IN THIS CASE ALSO, THE FAC TS ARE SIMILAR. IN THAT ITA NOS.855 & 856(B)2016 8 CASE ALSO, INFORMATION WAS RECEIVED BY THE GOVT. OF INDIA FROM VARIOUS GOVT. UNDER THE PROVISIONS OF EXCHANGE OF INFORMATI ON CLAUSES OF THE BILATERAL DOUBLE TAXATION AGREEMENT WITH THAT COUNT RY THAT THE ASSESSEE HAD A BANK ACCOUNT IN HSBC, GENEVA, SWITZERLAND SHO WING A SUM OF US DOLLARS 10,74,837/- IN MAY, 2006 AND US DOLLARS 10, 64,933/- IN DECEMBER, 2006 RELATING TO ASSESSMENT YEAR 2007-08. ON THE BASIS OF THIS INFORMATION, A SEARCH AND SEIZURE ACTION U/S 1 32 OF THE IT ACT, WAS CONDUCTED IN THE CASE OF THE ASSESSEE AS WELL AS IN OTHER CASES BELONGING TO MANGAL STEEL GROUP ON 28-07-2011 AS WELL AS ON S UBSEQUENT DATES. IN COURSE OF SEARCH, STATEMENT OF ASSESSEE WAS RECORDE D U/S 131 OF THE ACT, WHEREIN HE ADMITTED FOR HAVING MAINTAINING A BANK A CCOUNT IN HSBC, GENEVA, SWITZERLAND. HE ALSO ADMITTED THAT THE SAI D BANK ACCOUNT WAS OPENED ON 07-06-1999 AND HIS WIFE SMT. USHA GARODIA WAS AN AUTHORIZED PERSON TO OPERATE THE SAID ACCOUNT MAINTAINED IN HI S NAME. IN THAT CASE ALSO, IT WAS AGREED BY HIM THAT HE WILL PAY INCOME TAX IF ANY DUE ON THIS AMOUNT BECAUSE THIS WAS UNDISCLOSED AMOUNT. IN TH AT CASE ALSO, THE AO STARTED PROCEEDINGS U/S 153A OF THE ACT AND ALTHOUG H THE RETURN OF INCOME WERE FILED BY THE ASSESSEE IN THAT CASE FOR BOTH THE YEARS I.E. AY: 2006-07 & 2007-08, BUT NO INCOME WAS OFFERED ON ACC OUNT OF THESE BANK ACCOUNTS IN THE SAID RETURNS IN ANY OF THESE YEARS AND THE ADDITION WAS MADE BY THE AO IN THAT CASE ALSO IN BOTH THESE YEAR S AND WHEN THE MATTER WENT TO THE TRIBUNAL, THE TRIBUNAL DELETED THE ADDI TION ON THIS BASIS THAT IN A CASE WHERE ASSESSMENT PROCEEDINGS HAVE ALREADY REACHED FINALITY, ASSESSMENT U/S 143(3) R.W.S.153A HAS TO BE MADE AS WAS ORIGINALLY MADE ITA NOS.855 & 856(B)2016 9 AND ONLY IN THOSE CASES, WHERE CERTAIN INCRIMINATIN G MATERIAL WAS FOUND INDICATING UNDISCLOSED INCOME THEN, ADDITIONS SHALL BE MADE BY RESTRICTING THE SAME TO THESE DOCUMENTS/INCRIMINATI NG MATERIAL. FOR THE SAKE OF READY REFERENCE, WE RE-PRODUCE PARA-10 & 11 OF THIS TRIBUNAL ORDER. 10. AT THE TIME OF HEARING BEFORE US, THE LD. DR HAS CONTENDED THAT THE PROCESSING OF RETURN OF INCOME F ILED BY THE ASSESSEE AS MADE B Y THE AO U/S 143(1) COULD NO T BE REGARDED AS ASSESSMENT AND IT IS THEREFORE, NOT A C ASE WHERE THE ASSESSMENTS FOR BOTH THE YEARS UNDER CONSIDERATION COULD BE SAID TO HAVE BEEN COMPLETED. HE HAS ALSO CONTENDED THAT THE CONCLUSION OF SUCH ALON E IS SUFFICIENT TO GIVE JURISDICTION TO AO TO PROCEED AG AINST THE ASSESSEE U/S 153A OF THE ACT. IN SUPPORT OF THIS CONTENTION, HE HAS RELIED ON THE UNREPORTED DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). IN THE SAID CASE, A QUESTION WAS P OSED BY THE HONBLE DELHI HIGH COURT IN PARA-NO.12 OF IT S ORDER AS TO WHETHER THE AO WAS EMPOWERED TO REOPEN THE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NO TE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING TH E SEARCH WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESS MENTS YEARS EITHER UNDER SECTION 143(1) OR SEC.143(3) OF THE ACT, AND SUCH ORDER WAS ALREADY INEXISTENCE HAVING BEEN PASSED PRIOR TO THE INITIATION OF SEARCH/REQUISITIO N. ALTHOUGH, THIS QUESTION WAS NOT FINALLY ANSWERED Y HE HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA(SUPRA), IT IS QUITE CLEAR FROM THE SAID QUES TION RAISED BY THE HONBLE DELHI HIGH COURT THAT THERE W AS NO DISTINCTION MADE BY THEIR LORDSHIPS IN THE ASSESSME NTS ITA NOS.855 & 856(B)2016 10 COMPLETED U/S 143(1) AND SEC.143(3) FOR DETERMININ G THE SCOPE OF THE PROCEEDINGS U/S153A. HOWEVER, THE SAI D QUESTION AROSE SPECIFICALLY FOR THE CONSIDERATION O F MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT V S PRATHIBA INDUSTRIES REPORTED IN 141 ITD 151 AND AFT ER REFERRING TO THE DISCUSSIONS MADE BY THE HONBLE DE LHI HIGH COURT IN THIS CONTEXT IN THE CASE OF ANIL KUMA R BHATIA (SUPRA) , THE TRIBUNAL HELD THAT THE ONLY LO GICAL CONCLUSION WHICH COULD BE TRACED OUT BY HARMONIZING THE LEGISLATIVE INTENDMENT AND THE JUDICIAL DECISION WA S THAT WHERE THE ASSESSMENTS AD ALREADY BECOME FINAL PRIOR TO THE DATE OF SEARCH, THE TOTAL INCOME HAS TO BE DETE RMINED U/S 153A BY CLUBBING TOGETHER THE INCOME ALREADY DETERMINED IN THE ORIGINAL ASSESSMENTS AND THE INCO ME THAT IS FOUND TO HAVE ESCAPED ASSESSMENT ON THE BAS IS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. TO ARRIVE AT THIS CONCLUSION, RELIANCE WAS PLACED B Y THE TRIBUNAL ON THE DECISION ON SPECIAL BENCH, MUMBAI I N THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA) WHE REIN IT WAS HELD THAT EVEN THOUGH ALL THE SIX YEARS SHALL B ECOME SUBJECT MATTER OF ASSESSMENT U/S 153A AS A RESULT O F SEARCH, THE AO SHALL GET THE FREE HAND THROUGH ABAT EMENT ONLY ON THE PROCEEDINGS THAT ARE ENDING. BUT IN A CASE OR IN A CIRCUMSTANCES WHERE THE PROCEEDINGS HAVE REACH ED FINALITY, ASSESSMENT U/S 143(#) R.W.S.153(3) HAS TO BE MADE AS WAS ORIGINALLY MADE AND IN A CASE CERTAIN INCRIMINATING DOCUMENTS WERE FOUND INDICATING UNDISCLOSED INCOME, THEN ADDITION SHALL ONLY BE RES TRICTED TO THOSE DOCUMENTS/INCRIMINATING MATERIAL. 11. KEEPING IN VIEW THE DISCUSSION MADE ABOVE, WE HOLD THAT THE ADDITIONS AS FINALLY MADE TO THE TOTA L INCOME OF THE ASSESSEE ON ACCOUNT OF TRANSACTIONS REFLECTE D IN THE ITA NOS.855 & 856(B)2016 11 BANK ACCOUNT OF THE ASSESSEE WITH HSBC, GENEVA, SWITZERLAND AND INCOME RELATING THERETO FOR BOTH TH E YEARS UNDER CONSIDERATION ARE BEYOND THE SCOPE OF SEC.153A AS THE ASSESSMENTS FOR THE SAID YEARS HAD BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH TO SUPPORT AND SUBSTANTIATE THE SAID ADDITION. THE SAID ADDITIONS MADE FOR BOTH THE YEARS UNDER CONSIDERATI ON ARE, THEREFORE, DELETED ALLOWING THE RELEVANT GROUN DS OF THE ASSESSEES APPEALS. 8. WE FIND AS PER THIS TRIBUNAL ORDER, IT WAS HELD THAT IF NO INCRIMINATING MATERIAL HAS BEEN FOUND IN COURSE OF SEARCH JUSTIFYING ANY UNDISCLOSED INCOME THEN NO ADDITION CAN BE MADE U/S 153A BUT ON THIS ASPECT, THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CANARA HOUSING DEV. CO. VS DCIT (SUPRA) IS SUPPORTING THE CASE OF THE REVENUE. PARA 10 OF THIS JUDGMENT IS RELEVAN T AND IT IS REPRODUCED HEREINBELOW FOR READY REFERENCE. IT IS AS UNDER:- 10. SECTION 153A OF THE ACT STARTS WITH A NON OBSTANTE CLAUSE. THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTION S 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTION 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 1 49 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTIC E TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO ITA NOS.855 & 856(B)2016 12 BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. TH E TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSME NT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL TH E STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHO SE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. THEREFORE, IT IS CLEAR EVEN IF AN ASSESSMENT ORDER IS PASSED UNDER SECTION 143(1) OR 143(3) OF THE ACT, T HE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NO TE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. AFTER SUCH REOPENING OF THE ASSESSMENT, THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSES S THE TOTAL INCOME OF THE AFORESAID YEARS. THE CONDIT ION PRECEDENT FOR APPLICATION OF SECTION 153A IS THERE SHOULD BE A SEARCH UNDER SECTION 132. INITIATION OF PROCEEDINGS UNDER SECTION 153A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTHED DURING SUCH SEARCH. THE PROVISO TO THE AFORESAID SECTION MAKES IT CLEAR THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FAL LING WITHIN SUCH SIX ASSESSMENT YEARS. IF ANY ASSESSMENT PROCEEDINGS ARE PENDING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THE AFORESAID SUB- SECTION ON THE DATE OF INITIATION OF THE SEARCH UND ER SECTION 132, THE SAID PROCEEDING SHALL ABATE. IF SU CH PROCEEDINGS ARE ALREADY CONCLUDED BY THE ASSESSING OFFICER BY INITIATION OF PROCEEDINGS UNDER SECTION 153A, THE LEGAL EFFECT IS THE ASSESSMENT GETS REOPENED. T HE ITA NOS.855 & 856(B)2016 13 BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCO ME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED; RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BE EN GIVEN THE POWER TO ASSESS OR REASSESS THE TOTAL INC OME OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THE ASSESSING OFFICER IS EMPOWER ED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL, INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF A NY, UNEARTHED DURING THE SEARCH. HE HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME O F AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER I N RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHI CH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. WHEN ONCE THE PROCEEDINGS ARE INITIATED UNDER SECTION 153A OF THE ACT, THE LEGAL EFFECT IS EVEN IN CASE WHERE THE ASSESSMENT ORDER IS PASSE D IT STANDS REOPENED. IN THE EYE OF LAW THERE IS NO ORDE R OF ASSESSMENT. RE-OPENED MEANS TO DEAL WITH OR BEGIN WITH AGAIN. IT MEANS THE ASSESSING OFFICER SHALL AS SESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEAR S. ONCE THE ASSESSMENT IS REOPENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RETURN, ANY UNDISCLOSED INCOME FOUND DURING SEARCH OR AND ALSO ANY OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNE ARTHED DURING THE SEARCH, IN ORDER TO FIND OUT WHAT IS THE 'TOTAL INCOME' OF EACH YEAR AND THEN PASS THE ASSESSMENT ORDER. THEREFORE, THE COMMISSIONER BY VIRTUE OF THE POWER CONFERRED UNDER SECTION 263 OF THE ACT GETS N O ITA NOS.855 & 856(B)2016 14 JURISDICTION TO INITIATE PROCEEDINGS UNDER THE SAID PROVISION BECAUSE THE CONDITION PRECEDENT FOR INITI ATING PROCEEDINGS UNDER SECTION 263 IS ANY ORDER PASSED UNDER THE ACT BY THE ASSESSING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ONCE THE ORDER PASSED BY THE ASSESSING OFFICER GETS REOPENED, THERE IS NO ORDER WHICH CAN BE SAID TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE-INTER EST OF THE REVENUE WHICH CONFERS JURISDICTION ON THE COMMISSIONER TO EXERCISE THE POWER OF THE JURISDICT ION. 9. IN THE CASE OF DCIT VS SHI KAMAL PASHA (SUPRA), THE TRIBUNAL HAS ALREADY CONSIDERED THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT AND IT WAS HELD THAT AS PER THIS JUDGMENT OF THE KARNATAKA HIGH COURT, THIS IS NOT THE REQUIREMENT OF LAW THAT THER E MUST BE SOME UNDISCLOSED INCOME HAVING BEEN UNEARTHED DURING THE COURSE OF SEARCH. THE TRIBUNAL ALSO NOTED THAT AS PER THE JUDGMENT, I NITIATION OF PROCEEDINGS U/S 153A IS NOT DEPENDENT ON ANY UNDISC LOSED INCOME BEING UNEARTHED DURING THE SEARCH. THE TRIBUNAL FURTHER NOTED THAT AS PER THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT, NOT ONLY THE INCOME DISCLOSED IN THE EARLIER RETURN AND INCOME UNEARTHE D DURING THE SEARCH, THE AO CAN TAKE INTO CONSIDERATION ANY OTHE R INCOME ALSO FOR COMPLETING THE ASSESSMENT U/S 153A OF THE ACT, 1961. FOR THE SAKE OF READY REFERENCE, WE RE-PRODUCE PARA -10 OF THIS TRIBUNAL ORDER WHICH IS AS UNDER; ITA NOS.855 & 856(B)2016 15 10. NOW, WE EXAMINE THE APPLICABILITY OF THE JUDGM ENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CA SE OF M/S CHDC (SUPRA). IN THIS CASE, THE ASSESSEE BEFORE THE KARNATAKA HIGH COURT WAS THE SEARCHED PERSON AS IN THE PRESENT CASE. PARA NO.10 & 11 OF THIS JUDGMENT OF T HE HONBLE KARNATAKA HIGH COURT ARE RELEVANT AND FOR T HE SAKE OF READY REFERENCE, THESE PARAS ARE RE-PRODUCE D HEREIN BELOW; 10. SECTION L53A OF THE ACT STARTS WITH A NON OBSTANTE CLAUSE. THE FETTERS IMPOSED UPON THE ASSESSING OFFI CER BY THE STRICT PROCEDU RE TO ' ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE . NON ' OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF ' . SECTION ' 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECT I ON ' I4 S CAN BE ISSUED, AS PROVIDED IN SECTION 149 . HAS AL S O B E EN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. ' SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTIC E TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED ' BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSME NT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL TH E STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICE R UNDER SECTION 153A HAS BEEN ENTRUST E D WITH THE DUTY OF BR I NGING TO TAX THE TOTAL INCOME OF AN ASSESS E E WHOSE , CASE IS C O V ERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS . WI THOUT ANY FETTERS, IF NEED BE. THEREFORE, IT IS ' , CLEAR E VEN IF AN A SSESSMENT ORDER IS PASSED UNDER SECTION ' 143(1) ' OR 143(3) ~ F THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO RE-OPEN THOSE PROCEEDINGS AND REASONS THE TOTAL INCOME TAKING NOT E OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE ITA NOS.855 & 856(B)2016 16 SEARCH. AFTER SUCH REOPENING OF THE ASSESSMENT, THE AO IS EMPOWERED TO ASSESS OR RE-ASSESS THE TOTAL INCOM E OF THE AFORESAID YEARS. THE CONDITION PRECEDENT FOR APPLICATION OF SEC.153A IS THERE SHOULD BE A SEARCH UNDER SECTION 132. INITIATION OF PROCEEDINGS U/S 15 3A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTHED DURING SUCH SEARCH. THE PROVISO TO THE AFORESAID SECTION MAKES IT CLEAR THE AO SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. IF ANY ASSESSMENT PROCEEDINGS ARE PENDING WITHIN THE PERIOD OF S I X ASSESSMENT YEARS REFERRED TO IN THE AFORESAID SUB-SECTION ON T HE DATE - OF CONCLUDED BY THE ASSESSING OFFICER BEFORE INITIATION OF SEARCH U/S 132, THE SAID PROCEEDINGS UNDER SECTION , 153A, - THE ' LEGAL EFFECT ' IS THE ASSESSMENT GETS REOPENED . THE ' BLOCK ASSESSMENT ROBED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENTS. UNDER SECTION ' 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE ASSESSMENTS. UNDER SECTION ' 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' , OF THE - SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS . THE ASSESSING OFFICER IS EMPOWERED TO ' REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL , INCOME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. HE HAS BEEN ENTRUSTED WITH THE ' DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ITA NOS.855 & 856(B)2016 17 ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. WHEN ONCE ' THE PROCEEDINGS ARE INITIATED UNDER SECTION 153A : OF THE ACT, THE ' LEGAL EFFECT IS EVEN IN CASE WHE R E THE ASSESSMENT ORDER IS PASSED IT STANDS REOPENED. IN THE EYE OF LAW THERE IS NO ORDER OF ASSESSMENT . RE-OPENED MEANS S TO DEAL WWW WOO BEGIN WITH AGAIN. IT MEANS THE ASSESSING ' OFFICER : SHA!L ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESMENT , YEARS. ONCE THE ASSESSMENT IS RE O PENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE ' INCOME DISCLOSED IN THE EARLIER RETURN. AN Y OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNEARTHED DURING THE SEARCH, IN ORDER TO FIND OUT WHAT IS THE TOTAL INCO ME OF EACH YEAR AND THEN PASS THE ASSESSMENT ORDER. THEREFORE, THE COMMISSIONER BY VIRTUE OF THE POWER CONFERRED UNDER SECTION 263 OF THE ACT GETS NO JURISDICTION TO INITIATE PROCEEDINGS UNDER THE SAID PROVISION ' BECAUSE THE CONDITION PRECEDENT FOR INITIATING PROCEEDINGS UNDER SECTION 263 IS ANY ORDER PASSED UNDER THE ACT BY THE ASSESSING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL T O THE INTEREST OF THE REVENUE. ONCE THE ORDER PASSED BY THE AO GETS REOPENED, THERE IS NO ORDER WHICH CAN BE SAID TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE WHICH CONFERS JURISDICTION ON THE COMMISSIONER TO EXERCISE THE POWER OF THE JURISDICTION. ITA NOS.855 & 856(B)2016 18 11. THE TRIBUNAL HAS PROCEEDED ON THE ASSUMPTION BY VIRTUE OF THE JUDGMENT OF THE SPECIAL BENCH OF THE MUMBAI, THE SCOPE OF ENQUIRY U/S 153A IS TO BE CONFINED ONLY TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND IF THERE IS ANY OTHER INCOME WHICH IS NOT THE SUBJECT MATTER OF SEARCH, THE SAME CANNOT BE TAKEN INTO CONSIDERATION. THEREFORE, THE REVISIONAL AUTHORITY CAN EXERCISE POWER U/S 263. IN THE ENTIRE SCHEME OF 153A OF THE ACT, THERE IS NO PROHIBITION FOR THE ASSESSING AUTHORITY TO TAKE NOTE OF SUCH INCOME. ON THE CONTRARY, IT IS EXPRESSLY PROVIDED U/S 153A OF THE ACT THE AO SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS WHICH MEANS THE SAID TOTAL INCOME INCLUDES INCOME WHICH WAS RETURNED IN THE SURLIER RETURN, THE INCOME WHICH WAS UNEARTHED DURING SEARCH AND INCOME WHICH IS NOT THE SUBJECT MATTER OF AFORESAID TWO INCOME. IF THE COMMISSIONER HAS COME ACROSS ANY INCOME THAT THE ASSESSING AUTHORITY HAS NOT TAKEN NOTE OF WHILE PASSING THE EARLIER ORDER, THE SAID MATERIAL CAN BE FURNISHED TO THE ASSESSING AUTHORITY AND THE ASSESSING AUTHORITY SHALL TAKE NOTE OF THE SAID INCOME ALSO IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHEN THE EARLIER PROCEEDINGS ARE REOPENED AND THAT INCOME ALSO SHALL BECOME THE SUBJECT MATTER OF SAID PROCEEDINGS. IN THAT VIEW OF THE MATTER THE REASONING GIVEN BY THE TRIBUNAL IS NOT JUSTIFIED. COMMISSIONER DID NOT HAVE JURISDICTION TO INITIATE ANY PROCEEDINGS U/S 263 OF THE ACT. ITA NOS.855 & 856(B)2016 19 AS PER THE ABOVE PARAS REPRODUCED FROM THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHDC (SUPRA, IT WAS HELD IN THIS CASE THAT EVEN IF THE ASSESSMENT ORDER IS PASSED U/S143(3) OF THE IT ACT, THE AO IS EMPOWERED TO RE-OPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY UNEARTHED DURING THE SEARCH AND IT WAS ALSO HELD THAT AFTER SUCH RE- OPENING OF THE ASSESSMENT, THE AO IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE AFORESAID YEARS. IT WAS ALSO HELD BY THE HONBLE KARNATAKA HIGH COURT THAT APPLICATION OF SEC.153A OF THE ACT REQUIRES ONLY THIS THAT THERE SHOULD BE A SEARCH U/S 132 AND INITIATION OF PROCEEDINGS U/S153A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTHED DURING THE SEARCH. HENCE, THIS IS CATEGORICALLY MADE CLEAR BY THE HONBLE KARNATAKA HIGH COURT THAT FOR THE RE-ASSESSMENT OF THE SEARCHED PERSON U/S 153A OF THE ACT, THIS IS NOT A REQUIREMENT OF LAW THAT THERE MUST BE SOME UNDISCLOSED INCOME HAVING BEEN UNEARTHED DURING THE COURSE OF SEARCH. THIS IS ALSO MADE CLEAR BY THE HONBLE KARNATAKA HIGH COURT THAT ONCE THE ASSESSMENT IS RE-OPENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIE R RETURN, ANY UNDISCLOSED INCOME FOUND DURING THE SEARCH OR/AND ALSO ANY OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNEARTHED DURING THE SEARCH IN ORDER TO FIND OUT WHAT IS THE TOTAL INCOME OF EACH YEAR AND THEN PASS THE ASSESSMENT ORDER. HENCE, IT IS SEEN THAT ITA NOS.855 & 856(B)2016 20 AS PER THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT, NOT ONLY THE INCOME DISCLOSED IN THE EARLIER RETURN AND INCOME UNEARTHED DURING THE SEARCH, THE AO CAN TAKE INTO CONSIDERATION ANY OTHER INCOME ALSO FOR COMPLETING THE ASSESSMENT U/S 153A OF THE ACT, 1961. IN THE PRESENT CASE, IN OUR CONSIDERED OPINION, THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHDC (SUPRA) IS SQUARELY APPLICABLE BECAUSE, THE ASSESSEE BEFORE US IS ALSO A SEARCHED PERSON AS IN THAT CASE. HENCE, RESPECTFULLY FOLLOWING THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHDC (SUPRA), WE REVERSE THE ORDER OF THE LD. CIT(A) AND RESTORE THAT OF THE AO. 10. IT IS SEEN THAT AFTER CONSIDERING THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT HAVING RENDERED IN THE CASE OF CANARA HOUSING DEV. CO. (SUPRA), THE ISSUE REGARDING VALIDITY OF T HE ASSESSMENT ORDER U/S 153A AND POSSIBILITY OF MAKING ADDITION IN THE SAID ASSESSMENT ON THE BASIS OF MATERIAL AVAILABLE WITH THE DEPARTMENT ALT HOUGH NOT FOUND DURING THE COURSE OF SEARCH IS COVERED IN FAVOUR OF THE RE VENUE BY THIS JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT AND THEREFORE, ON THIS ASPECT OF THE MATTER, WE ARE DUTY BOUND TO FOLLOW THIS JUDGMENT O F THE HONBLE KARNATAKA HIGH COURT IN PREFERENCE TO THE TRIBUNAL ORDER CITED BY THE LD. AR OF THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF SHRI BISHWANATH GARODIA (SUPRA). ITA NOS.855 & 856(B)2016 21 11. THE SECOND TRIBUNAL ORDER ON WHICH RELIANCE HA S BEEN PLACED BY THE LD. AR OF THE ASSESSEE HAS BEEN RENDERED BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SHYAM SUNDER JINDAL VS ACIT (SUPRA). IN THAT CASE ALSO, THE ISSUE IN DISPUTE WAS REGARDING ADDIT ION MADE BY THE AO UNDER SIMILAR FACTS, IN RESPECT OF ASSESSEES BANK ACCOUNT WITH HSBC BANK, GENEVA, SWITZERLAND. IN THAT CASE, THE TRIBU NAL RESTORED THE MATTER BACK TO THE FILE OF AO FOR FRESH DECISION AND FOR T HE SAKE OF READY REFERENCE, PARA-23 OF THE TRIBUNAL ORDER IS REPRODU CED. THIS IS AS UNDER:- 23. FROM THE AFORESAID NOTINGS, IT IS CLEAR THAT THE AO INFORMED THE ASSESSEE ABOUT THE COPY OF BANK ACC OUNT OBTAINED UNDER DTAA. HOWEVER, A CONTRADICTORY OBSERVATION HAS BEEN MADE IN PARA-6 OF THE ASSESSME NT ORDER THAT THE REQUISITE INFORMATION FROM SWISS BAN KING AUTHORITY HAD NOT BEEN RECEIVED. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE, SET ASIDE THE IMPUGNED ORDER AND RESTO RE THE MATTER BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD AND BY CONFRO NTING THE ASSESSEE WITH THE DOCUMENTS WHICH RELATES TO HI M. AS REGARDS TO THE LEGAL ISSUE RELATING TO THE VALID ITY OF THE ASSESSMENT U/S 153A OF THE ACT, IT IS NOTICED THAT THE ASSESSEE INPARA-2.20 OF HIS WRITTEN SUBMISSIONS DAT ED 22-08-2016 STATED THAT THE SEARCH TEAM HAD CONFRONT ED THE ASSESSEE WITH UNAUTHENTIC DOCUMENT. IN THE PRE SENT CASE, IT IS NOT CLEAR AS TO WHETHER ANY AUTHENTIC D OCUMENT WAS CONFRONTED TO THE ASSESSEE OR NOT. THE AO ALSO MENTIONED THAT A REFERENCE WAS MADE ON 27-11-2012 B UT IT IS NOT CLEAR FOR WHICH PURPOSE THE SAID REFERENC E WAS MADE. SO IN THE ABSENCE OF CLEAR FACTS ON RECORD , THIS ITA NOS.855 & 856(B)2016 22 ISSUE IS ALSO SET ASIDE TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH, IN ACCORDANCE WITH LAW AFTER PR OVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11.1 AS PER THE ABOVE PARA, REPRODUCED FROM THE TR IBUNAL ORDER RENDERED IN THE CASE OF SHYAM SUNDER JINDAL VS ACI T (SUPRA), IT IS SEEN THAT IN THAT CASE, THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE AO FOR FRESH DECISION ON THIS BASIS THAT AU THENTICATED COPY OF THE STATEMENT WAS NOT CONFRONTED TO THE ASSESSEE. IN TH IS REGARD, WE FIND THAT THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT RENDE RED IN THE CASE OF SOIGNEE R KOTHARI VS DCIT (SUPRA) SUPPORTS THE CASE OF THE REVENUE. IN THAT CASE, IT WAS HELD BY THE HONBLE BOMBAY HIGH C OURT THAT IN THE NORMAL COURSE OF HUMAN CONDUCT, IF A PERSON HAS NOT HING TO HIDE AND SERIOUS ALLEGATIONS/QUESTIONS ARE BEING RAISED ABOU T THE FUNDS, A PERSON, WOULD MAKE AVAILABLE THE DOCUMENTS WHICH WOULD PUT TO REST ALL QUESTIONS SEEMS TO ARISE IN THE MINDS OF THE AUTHOR ITIES. 12. IN THAT CASE ALSO, THE ASSESSEE WAS ASKED TO G IVE CONSENT WAIVER FORM TO ENABLE THE BANK TO GET COPIES OF THE BANK S TATEMENTS OF HSBC, GENEVA, SWITZERLAND, BUT THE ASSESSEE IN THAT CASE DID NOT PROVIDE CONSENT WAIVER ALTHOUGH MODIFIED CONSENT WAS PROVI DED BY THE ASSESSEE AND IT WAS LEARNT THAT A MODIFIED CONSENT WAIVER FO RM WOULD NOT ENABLE THE BANK TO GIVE COPIES OF THE BANK STATEMENT OF HS BC, GENEVA, SWITZERLAND. IN THAT CASE ALSO, IT WAS THE ARGUMEN T OF THE LD. AR OF THE ASSESSEE THAT IT IS FOR THE REVENUE TO ESTABLISH TH AT INCOME HAS ACCRUED OR ITA NOS.855 & 856(B)2016 23 ARISEN IN INDIA WHICH WAS LYING ON 26-03-2006 IN AC COUNT NO.5091404580 IN HSBC, GENEVA, SWITZERLAND. FOR THE SAKE OF REA DY REFERENCE, WE RE- PRODUCE PARA-11 OF THIS JUDGMENT OF THE HONBLE BOM BAY HIGH COURT. THE SAME IS AS UNDER; 11. HOWEVER, ON ENQUIRY BY THE REVENUE FROM HSBC, GENEVA, IT WAS LEARNT THAT A MODIFIED CONSENT WAIVER FORM WOULD NOT ENABLE THE BANK TO GIVE COPIE S OF THE BANK STATEMENT OF ACCOUNT NO.5091404580 SINCE T HE WAIVER WOULD HAVE TO BE PROVIDED WITHOUT MODIFICATI ONS. WE NOTICE THAT THE PRINCIPAL CONTENTION OF THE PETI TIONER BEFORE US HAS BEEN THAT SHE IS NON-RESIDENT AND IT S ONLY HER INCOME WHICH IS RECEIVED OR ACCRUED OR ARISING IN INDIA WHICH CAN BE BROUGHT TO TAX UNDER THE ACT. T HUS, IT IS SUBMITTED THAT IT IS FOR THE REVENUE TO ESTABLI SH THAT THE INCOME HAD ACCRUED OR ARISEN IN INDIA WHICH WAS LYING ON 26 TH MARCH, 2006 IN ACCOUNT NO.5091404580 IN HSBC, GENEVA. WE FIND THAT THE PETITIONER AND/OR H ER UNCLE- DILIP MEHTA I.E. EXECUTOR OF THE ESTATE OF L ATE RAMNIKLAL N MEHTA WHO COULD PROBABLY AMONGST OTHERS BE ABLE TO PRODUCE COPIES OF THE BANK STATEMENT EIT HER BY GIVING A CONSENT WAIVER FORM TO THE IT DEPT. OR IN THE ALTERNATIVE MR. DILIP MEHTA COULD INSTRUCT THE DIRE CTOR OF M/S WHITE CEDAR TO APPLY FOR AND FURNISH TO HIM COP IES OF THE BANK STATEMENT IN ACCOUNT NO.5091404580 OF HSBC, GENEVA. THE FACT THAT T IS WITHIN THE AUTHORITY/POWER OF MR. DILIP MEHTA TO INSTRUCT M/S WHITE CEDAR IS EVIDENT FROM THE LETTER DATED 14 TH AUGUST 2014 ADDRESSED BY HSBC BANK, GENEVA TO M/S RED OAK OPERATION LTD. WHICH HAS BEEN TAKEN ON RECORD AND MARKED X FOR IDENTIFICATION. THIS BANK STATEMENT IF OBTAINED FROM HSBC, GENEVA, WOULD REVEAL AND/OR ITA NOS.855 & 856(B)2016 24 POSSIBLY GIVE CLUES AS TO THE SOURCE OF AMOUNTS DEPOSITED IN THE ACCOUNT NO.5091404580 OF HSBC BANK , GENEVA. NEITHER THE PETITIONER NOR HER UNCLE I./E EXECUTOR O THE ESTATE OF LATE RAMNIKLAL N MEHTA IS READY TO OBTAIN THE NECESSARY STATEMENT EITHER DIRECTLY O R THROUGH M/S WHITE CEDAR FROM HSBC, GENEVA IN RESPEC T OF ACCOUNT NO.5091404580 BY EXERCISING OR CAUSING T O BE EXERCISED THE LIMITED AUTHORITY TO INSTRUCT WHITE C EDAR TO APPLY FOR AND OBTAIN THE REQUISITE INFORMATION. IN THE NORMAL COURSE OF HUMAN CONDUCT IF A PERSON HAS NOTH ING TO HIDE AND SERIOUS ALLEGATIONS/QUESTIONS ARE BEING RAISED ABOUT THE FUNDS A PERSON WOULD MAKE AVAILABL E THE DOCUMENTS WHICH WOULD PUT TO REST ALL QUESTIONS WHICH SEEM TO ARISE IN THE MIND OF THE AUTHORITIES. THE CONDUCT ON THE PART OF THE PETITIONER AND HER UNCLE , IN NOT BEING FORTHCOMING, TO OUR MIND LEADS US TO THE CONC LUSION THAT THIS IS A NOT A FIT CASE WHERE WE SHOULD EXERC ISE OUR EXTRA ORDINARY WRIT JURISDICTION AND/OR INTERFERE W ITH THE ORDERS PASSED BY THE AUTHORITIES UNDER THE ACT. IF A PERSON HAS NOTHING TO HIDE, WE BELIEVE THE PERSON W OULD HAVE CO-OPERATED IN OBTAINING THE BANK STATEMENTS. 12.1 IT IS SEEN FROM THE JUDGMENT OF THE HONBLE B OMBAY HIGH COURT RENDERED IN THE CASE OF SOIGNEE R KOTHARI VS DCIT (SUPRA)THAT IT WAS HELD BY THE HONBLE BOMBAY HIGH COURT THAT IF A PERSON HAS NOTHING TO HIDE, PERSON WOULD HAVE CO-OPERATED IN OBTAINING THE BANK STATEMENTS. IN THE PRESENT CASE ALSO, THE ASSESSEE IS NOT CO-OP ERATING IN OBTAINING BANK STATEMENT AND WITHOUT THE BANK STATEMENT BEING OBTAINED FROM OVERSEAS I.E. HSBC BANK, GENEVA, SWITZERLAND, NO F RUITFUL PURPOSE WILL BE SERVED BY RESTORING THE MATTER BACK TO THE FILE OF THE AO FOR FRESH DECISION ITA NOS.855 & 856(B)2016 25 IN LINE WITH THE TRIBUNAL ORDER ON WHICH RELIANCE H AS BEEN PLACED BY THE LD. AR OF THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF SHYAM SUNDER JINDAL VS ACIT (SUPRA). IN THAT CASE, THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF SOIGNEE R KOTHARI (SUPRA) ON WHICH RELIANCE HAS BEEN PLACED BY THE REVENUE IN TH E PRESENT CASE WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL AND THERE FORE, THIS FACT IS VERY IMPORTANT THAT IN THE PRESENT CASE, A SPECIFIC FIND ING IS GIVEN BY THE LD. CIT THAT THE ASSESSEE IS NOT GIVING CONSENT LETTER FOR OBTAINING BANK STATEMENT AND BEFORE US ALSO, IN SPITE OF SPECIFIC QUERY FROM THE BENCH, THE LD. AR OF THE ASSESSEE DID NOT AGREE FOR PROVID ING THE CONSENT OF THE ASSESSEE REQUIRED FOR OBTAINING INFORMATION ABOUT T HE BANK ACCOUNT IN HSBC, GENEVA. THEREFORE, IN THE FACTS OF THE PRES ENT CASE, BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT, WE HOLD THAT NO FRUITFUL PURPOSE WILL BE SERVED BY RES TORING THE MATTER BACK TO THE FILE OF THE AO, PARTICULARLY, WHEN THE ASSES SEE IS NOT AGREEING TO GIVE CONSENT FOR OBTAINING BANK STATEMENTS FROM HSBC, GE NEVA. THEREFORE, THIS IS A FIT CASE TO DRAW INFERENCE AGAINST THE AS SESSEE BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH C OURT RENDERED IN THE CASE OF SOIGNEE R KOTHARI (SUPRA). IN VIEW OF DIF FERENCE IN FACTS, AS PER WHICH IN SPITE OF SPECIFIC REQUEST OF THE DEPARTMEN T AND IN SPITE OF QUERY OF THE BENCH IN THE COURSE OF HEARING, THE ASSESSEE IS NOT READY TO PROVIDE CONSENT FOR OBTAINING BANK STATEMENTS FROM HSBC, GE NEVA, SWITZERLAND, WE HOLD THAT THIS TRIBUNAL ORDER IS NOT REQUIRED TO BE FOLLOWED IN THE ITA NOS.855 & 856(B)2016 26 PRESENT CASE, IN VIEW OF THIS DIFFERENCE IN FACTS B ECAUSE IT WILL NOT SERVE ANY FRUITFUL PURPOSE. 13. IN VIEW OF ABOVE DISCUSSION, IT COMES OUT THAT NONE OF THE JUDGMENTS CITED BY THE LEARNED AR OF THE ASSESSEE I S RENDERING ANY HELP TO THE ASSESSEEV IN THE PRESENT CASE. WE ALSO FIND THA T AS PER THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT RENDERED IN THE CA SE OF SOIGNEE R KOTHARI (SUPRA), ASDVERSE INFERENCE HAS TO BE DRAWN AGAINST THE ASSESSEE BECAUSE THE ASSESSEE IS NOT READY TO PROVIDE CONSEN T TO GET BANK STATEMENT FROM OVERSEAS BANK. HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT (A) IN BOTH THESE CASES. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. (SUNIL KUMAR YADAV) (A.K. GARODIA) JUDICAL MEMBER ACCOUNTANT MEMBER PLACE: BANGALORE: D A T E D : .05.2017 AM * COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE ITA NOS.855 & 856(B)2016 27 1. DATE OF DICTATION 2. , , DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICT ATING MEMBER .. 3. !' # . $ %# / $ %# # & DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR .PS. 4. ''() & * + DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTAT ING MEMBER FOR PRONOUNCEMENT 5. * . %# / # . . %# # + DATE ON WHICH THE ORDER COMES BACK TO THE PS/SR.PS .. 6 * !', + DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. ! !', ' , - ) IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. .% / 0 + DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. * 1'2 / 34 & 5 + DATE ON WHICH ORDER GOES FOR XEROX &ENDORSEMENT 10. 0 6 / + DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 11. * 7 & 0 8 + THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. !) * 9() & 0 9() /#5 . + THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER 13. * 9() + DATE OF DESPATCH OF ORDER .