Shri Anil Bholabhai Patel, Baroda V. The Addl. Commissioner of Income Tax, Baroda

ITA 977/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5789 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Search and seizure; Document seized; Documents seized
• Section: 143(3); 153A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NOS. 977 & 978/AHD/2016 (ASSESSMENT YEARS : 2006-07 & 2008-09) SHRI ANIL BHOLABHAI PATEL 6, DARSHAN PARK SOCIETY, VIP ROAD, KARELIBAUG, BARODA 390018 APPELLANT VS. ADDL. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BARODA RESPONDENT PAN: AABCB4070D / BY ASSESSEE : ARTI N. SHAH, A.R. / BY REVENUE : SHRI PRASOON KABRA, SR. D.R. /DATE OF HEARING : 27.03.2018 /DATE OF PRONOUNCEMENT : 28.03.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YEARS 20 06-07 & 2008-09 ARISE AGAINST CIT(A)-12, AHMEDABADS COMMON ORDERS D ATED 21.12.2015, IN CASE NOS. CIT(A)-12/338B,339B/CC-1/BARODA/14-15, AFFIRMI NG ASSESSING OFFICERS ACTION TREATING ITS ALLEGED CAPITAL GAINS OF RS.66, 02,026/- AND RS.54,59,715/- TO BUSINESS INCOME OF RS.62,93,434/- AND RS.54,09,181/ -; RESPECTIVELY, IN ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 2 - PROCEEDINGS U/S. 143(3) R.W.S. 147 R.W.S. 144 & U/S . 153 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT; RESPECTIVE LY. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND IDENTICAL LY PLEADED IN BOTH THESE APPEALS CHALLENGES VALIDITY OF THE IMPUGNED SECTION 153A PROCEEDINGS. ITS FURTHER CASE IS THAT THERE WERE NO ASSESSMENT PROCEEDINGS P ENDING IN ITS CASE OF THE TWO ASSESSMENT YEARS IN QUESTION. LEARNED COUNSEL INFO RMS US THAT THE ASSESSING OFFICER HAD FRAMED REGULAR ASSESSMENTS ON 31.12.200 8 AND 31.12.2010; RESPECTIVELY ASSESSING ITS ABOVESTATED CAPITAL GAINS AS BUSINESS INCOME. THEN CAME THE IMPUGNED SEARCH ON 09.08.2011 FOLLOWED BY CONSEQUEN TIAL INSTANT ASSESSMENT PROCEEDINGS RAISING THE VERY SUBSTANTIVE ISSUE OF C APITAL GAINS VERSUS BUSINESS INCOME ONCE AGAIN. 3. LEARNED COUNSEL THEN TAKES US TO THE CIT(A)S OR DER COMMON IN BOTH THE ASSESSMENT YEARS UNDER CHALLENGE MAKING IT CLEAR TH AT THERE IS NO INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE ABOVE SEARCH AS UNDER: 4. BRIEF FACTS OF THE CASE ARE THAT THERE WAS AN A CTION U/S 132 ON ANIL BHOLABHAI PATEL GROUP OF CASES ON 9/8/2011, THUS-NO TICES U/S 153A CARNE TO BE ISSUED BY THE LD. AO AND THE APPELLANT FILED THE RE SPECTIVE RETURNS IN RESPONSE THERETO. THE APPELLANT DISCLOSED CAPITAL GAINS ON T RANSACTIONS OF SALE OF IMMOVABLE PROPERTIES, WHICH RANGED IN NUMBER FROM 7-15 PER YE AR. THE ISSUE OF CAPITAL GAIN VS. BUSINESS INCOME HAS BEEN DISCUSSED BY THE LD. A O IN PARA 4 TO 8 OF THE ASSESSMENT ORDER. AFTER CONSIDERING THE APPELLANT'S SUBMISSIONS DATED 17/2/2014, THE LD. AO HAS HELD THAT THE INCOME DISCLOSED UNDER THE HEAD 'CAPITAL GAIN' IS ESSENTIALLY THE INCOME FROM BUSINESS IN AS MUCH AS THE TRANSACTIONS REPRESENT A SYSTEMATIC AND PRIME PROFIT-EARNING ACTIVITY UNDERT AKEN BY THE APPELLANT DURING RELEVANT PERIODS. THE LD. AO, PRIMARILY, BASES HIS DECISION ON THE FOLLOWING FACTS/ASPECTS AS DISCUSSED BY HIM IN PARA 5; I) THE NUMBER AND MULTIPLICITY OF TRANSACTIONS IN L AND/PROPERTIES. II) THE FACT THAT DEVELOPMENT AGREEMENTS WERE ENT ERED INTO WITH VARIOUS PERSONS FOR DEVELOPMENT BEFORE SALE. III) THE IMPROVEMENT OF LAND BEFORE SALE. IV) BORROWED FUNDS USED FOR PURCHASE OF LAND. BASED ON THESE FACTS, THE LD. AO HAS CONSIDERED THE FOLLOWING AMOUNTS OF BUSINESS INCOME AS AGAINST THE CAPITAL GAINS DISCLOSED BY TH E APPELLANT: ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 3 - SR. NO. AY CG SHOWN BUSINESS INCOME ASSESSED NO OF TRANS. OF SALE 1 2006-07 RS.66,02,026/- RS.62,93,434/- 6 2 2008-09 RS.54,59,715/- RS.54,09,181/- 8 5. IT IS SEEN FROM THE SUBMISSIONS MADE BY THE LD. AR THAT FOR A.Y.2006-07, THE ISSUE OF CAPITAL GAINS VS. BUSINESS INCOME STANDS D ECIDED BY THE ORDER OF THE HON. ITAT IN APPELLANT'S OWN CASE IN ITA NO.238/AHD/2010 . THE ISSUE HAS BEEN DECIDED BY THE ITAT AGAINST THE APPELLANT AND AS IN FORMED TO ME, HON. HIGH COURT HAS ADMITTED THE APPELLANT'S FURTHER APPEAL. THUS, CLEARLY THE AO, AS VEHEMENTLY PLEADED BEFORE ME, WAS NOT WITHIN THE COMPETENCE OF REVIEWING OR COMMENTING ON MERITS OF THE ISSUE ALREADY DECIDED BY HIGHER FORUM FOR THE SAME ASSESSMENT YEAR IN APPELLANT'S OWN CASE IN THE ABSENCE OF SEIZED INCRI MINATING MATERIAL SUPPORTING THE ADDITION ON MERITS. THUS, I AGREE WITH THE LD. AR THAT AS LAID DOWN BY SPECIAL BENCH OF ITAT IN ALL CARGO GLOBAL LOGISTICS 137 ITD 287 (MUM)(SB) AND FURTHER APPROVED IN KABUL CHAWLA (2015) 61 TAXMANN.COM. 412 (DELHI), THE AO WAS REQUIRED ONLY 'TO REITERATE' THE TOTAL INCOME AS ST OOD DECIDED AFTER GIVING EFFECT TO THE HON. ITAT'S ORDER FOR THE RELEVANT YEAR I.E. A. Y.2006-07. NO DOUBT, THAT IN EFFECT, WOULD ALSO IMPLY THAT THE DECISION OF THE H ON. ITAT THAT THE ADDITION OF RS.62,93,433/- MADE BY THE LD. AO AND UPHELD BY THE HON. ITAT ON ACCOUNT OF THE SAME HAVING BEEN TREATED AS INCOME FROM BUSINESS WA S REQUIRED BY THE AO TO BE ONLY 'REITERATED' AND THEREFORE ALSO TO BE UPHELD I N THE PRESENT PROCEEDINGS BEFORE ME. THUS, THOUGH THE DECISION OF THE LD. AO, IN T REATING THE CAPITAL GAINS AS BUSINESS INCOME IS UPHELD; SUCH UPHOLDING IS NOT ON MERIT BUT MERELY BY WAY OF REITERATION OF TOTAL INCOME AS DETERMINED CONSEQUEN T TO THE ORDER OF THE HON. ITAT. THUS, THE GROUND RAISED BY THE APPELLANT FOR A.Y.20 06-07 IS PARTLY ALLOWED. 6. WITH RESPECT TO A.Y. 2008-09, FROM THE STATEMENT OF FACTS FILED BY THE LD. AR, IT APPEARS THAT AN ASSESSMENT U/S 143(3) WAS FRAMED BY THE AO PRIOR TO SEARCH, AGAINST WHICH THE APPEAL FILED HAS ALREADY BEEN DEC IDED BY MY LD. PREDECESSOR VIDE ORDER DATED 16/11/2011 AND APPELLANT IS IN FURTHER APPEAL BEFORE ITAT. IN VIEW OF THESE FACTS, IT IS CRYSTAL CLEAR THAT IN ABSENCE OF SEIZED INCRIMINATING MATERIAL SUPPORTING THE ADDITION ON MERIT, NEITHER THE AO NO R THE UNDERSIGNED IS COMPETENT TO REVIEW OR REVISIT THE ISSUES ALREADY ADJUDICATED BY MY ID. PREDECESSOR VIDE ORDER DATED 16/11/2011. IT THEREFORE, NEEDS TO BE HELD TH AT THE LD. AO, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH REFERRED TO OR RELIED UPON BY HIM IN THE ASSESSMENT ORDER AND A LSO IN VIEW OF ALL CARGO LOGISTICS AND KABUL CHAWLA (SUPRA), THE ID. AO ONLY NEEDED TO REITERATE THE TOTAL INCOME AS FINALLY STOOD APPROVED BY THE ORDER DATED 16/11/2011 OF MY ID. PREDECESSOR, AGAINST WHICH THE APPEAL FILED BY THE APPELLANT SEEMS TO BE PENDING. IN VIEW OF THIS ACTION, THOUGH THE ADDITION MADE BY THE ID. AO IS APPROVED AND UPHELD, SUCH UPHOLDING IS BASED NOT ON THE MERITS, BUT IN VIEW OF THE 'REQUIRED REITERATION' OF TOTAL INCOME IN PROCEEDINGS U/S 153 A IN THE ABSENCE OF ANY SEIZED DOCUMENTS. ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 4 - 4. THE ASSESSEE ACCORDINGLY ARGUES THAT THE IMPUGNE D PROCEEDINGS IN ITS CASE U/S.153A OF THE ACT HAVE BEEN WRONGLY INITIATED SIN CE NEITHER THERE IS ANY INCRIMINATING MATERIAL NOR ANY ASSESSMENT WAS PENDI NG IN THE TWO ASSESSMENT YEARS. CASE RECORDS SUGGEST THAT A CO-ORDINATE BENCH IN PR ECEDING ASSESSMENT YEAR INVOLVING IT(SS)A NOS. 70/AHD/2016 STOOD ACCEPTED O N 27.10.2016 HOLDS THE IDENTICAL PROCEEDINGS INITIATED U/S.153A OF THE ACT AS NOT SUSTAINABLE AS UNDER: 14. NOW WE SHALL ADDRESS OURSELVES TO THE LEGAL IS SUE RAISED RELEVANT TO AY 2007-08 IN IT(SS)A NO.70/AHD/2016, WHEREIN THE ASSE SSEE HAS QUESTIONED THE ACTION OF THE REVENUE IN HOLDING THE CAPITAL GAINS DECLARED ON SALE OF LAND/PROPERTIES AS BUSINESS INCOME IN PROCEEDINGS U/S.153A OF THE ACT WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL. 14.1. RELEVANT LEGAL GROUND RAISED BY THE ASSESSEE IN THIS REGARD READS AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -12, AHMEDABAD HAS ERRED IN LAW AND ON FACTS OF THE CASE IN NOT CONSID ERING GROUND NO.1 RAISED BEFORE THE ASSESSING OFFICER REGARDING NON ABATEMEN T OF ORIGINAL ASSESSMENT. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS)-12, AHMEDABAD HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN TREATING THE AMOUNT OF SALE OF AGRICULTURAL LAND AS INCOME FROM BUSINESS AND THEREBY MAKING ADDITION OF RS.12,01,695/- TO THE TOTAL INCOME. 14.2. THE AFORESAID GROUND OF THE ASSESSEE IS ESSEN TIALLY A LEGAL ISSUE EMANATING FROM FACTS ON RECORD OF THE REVENUE AND, THEREFORE, WE DEEM IT FIT AND PROPER TO ADJUDICATE THE ISSUE STRAIGHTWAY EVEN WHILE THE CIT (A) HAS OMITTED TO ADJUDICATE THE SAME. THE AFORESAID GROUND OF THE ASSESSEE HING ES ONLY ON ONE PERTINENT POINT AS TO WHETHER OR NOT WHILE FRAMING ORDER U/S.153A O F THE ACT, THE REVENUE IS ENTITLED TO INTERFERE WITH THE ASSESSMENT COMPLETED U/S.143(1) OF THE ACT AND NOT PENDING AT THE TIME OF SEARCH IN THE ABSENCE OF ANY INCRIMINATING MATERIAL/DOCUMENTS UNEARTHED AS A RESULT OF SEARCH. 14.3. ON FACTS, WE TAKE NOTE OF THE UNDISPUTED FACT THAT THE RETURN OF INCOME WAS FILED FOR AY 2007-08 STOOD FINALIZED PRIOR TO SEARC H OWING THE EXPIRY OF TIME LIMIT FOR REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT. WE ALSO NOTE THE AVERMENT MADE ON BEHALF OF THE ASSESSEE THAT NO INCRIMINATIN G MATERIAL/DOCUMENT HAS BEEN FOUND IN THE COURSE OF THE SEARCH PROCEEDINGS WHICH EXHIBITS INTENTION CONTRARY TO WHAT IS DECLARED IN THE BOOKS OF ACCOUNTS MAINTAINE D BY THE ASSESSEE. WE NOTE THAT THE ASSERTIONS MADE BY THE ASSESSEE TO THE EFFECT T HAT INCOME ARISING ON SALE OF CAPITAL ASSET HAS BEEN TREATED AS BUSINESS INCOME W ITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL HAS REMAINED UNREBUTTED. AS A COROLLARY, ITS MANIFEST THAT IMPUGNED REALIGNMENT OF INCOME FROM ONE HEAD TO ANO THER HAS BEEN MADE WITHOUT ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 5 - REFERENCE TO ANY INCRIMINATING MATERIAL/DOCUMENT F OUND AS A RESULT OF SEARCH AND SEIZURE U/S.132 OF THE ACT. WE ALSO TAKE COGNIZANCE OF THE FACT THAT THE INCOME TAX RETURN RELEVANT TO ASSESSMENT WAS FILED PRIOR TO TH E SEARCH IN THE NORMAL COURSE SUO MOTU DISCLOSING THE IMPUGNED CAPITAL GAIN ON SALE O F LAND/PROPERTIES IN QUESTION. THE RETURN SO FILED IN THE ORDINARY COURSE WERE ACC EPTED U/S.143(1) OF THE ACT AND AS SUCH NO ASSESSMENT WAS PENDING ON THE DATE OF IN ITIATION OF SEARCH WHICH WOULD ABATE IN CONSEQUENCE OF SEARCH. IN THE LIGHT OF THE SE FACTS, WE ARE OF THE VIEW THAT MERE REALIGNMENT OF INCOME FROM ONE HEAD TO ANOTHER MADE BY THE AO IS CLEARLY BEYOND THE SCOPE OF AUTHORITY VESTED U/S.153A OF TH E ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL OR EVIDENCE DETECTED AS A RE SULT OF SEARCH. PERTINENT TO NOTE THAT NO REFERENCE TO SUCH INCRIMINATING MATERIAL IS FOUND IN THE ORDERS OF THE AUTHORITIES BELOW FOR THE PURPOSE OF IMPUGNED REALI GNMENT. THIS LEGAL ISSUE EMANATING IN THE PRESENT CASE THAT IN THE ABSENCE O F INCRIMINATING DOCUMENT/MATERIAL, NO ADDITION CAN BE SUSTAINED U/S .153A OF THE ACT IS NO LONGER RES INTEGRA IN VIEW OF THE DECISION OF THE HONBLE A LLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJKUMAR ARORA(SUPRA) AND ALSO THE COORD INATE BENCH OF RAIPUR IN THE CASE OF RAWAL DAS JASWANI VS. ACIT(SUPRA). IT WILL BE APPROPRIATE TO MENTION THAT THE AFORESAID VIEW IS ALSO SUPPORTED BY THE DECISIO N OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA REPORTED IN (2015) 61 TAXM ANN.COM 412(DELHI) ALSO RELIED UPON BY THE ASSESSEE. THE RELEVANT FINDINGS OF THE HONBLE DELHI HIGH COURT ARE REPRODUCED HEREUNDER:- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UN DER:- I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATE LY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES P LACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INC OME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORD ERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESS MENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AN D THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THA T THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 6 - V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESS MENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABAT ED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE JURISDICTION TO MAKE THE ORIGINAL ! ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARAT ELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER M ATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASI S OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS 2002-03, 2005-0 6 AND 2006-07. ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED . 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 40. THE APPEALS ARE ACCORDINGLY DISMISSED BUT IN TH E CIRCUMSTANCES NO ORDERS AS TO COSTS. 14.3. THE JUDICIAL PRECEDENCE NOTED ABOVE HAS UNDER SCORED NEED FOR REVENUE TO UNEARTH THE MATERIAL AS A RESULT OF SEARCH TO JUSTI FY THE ASSESSMENT SOUGHT TO BE MADE. RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENC E TOUCHING THE CONTROVERSY, THE LEGAL ISSUE STANDS ADJUDICATED IN FAVOR OF THE ASSE SSEE. THUS, IN OUR CONSIDERED VIEW, THE REALIGNMENT OF INCOME FROM ONE HEAD OF IN COME TO ANOTHER WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL IS NOT SUST AINABLE IN LAW IN THE FACTS OF THE PRESENT CASE. 14.4. ACCORDINGLY, WE ALLOW THE AFORESAID LEGAL GRO UND RAISED BY THE ASSESSEE RELEVANT TO AY 2007-08. 5. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DIS PUTE THE ABOVE LEGAL DEVELOPMENTS AS WELL AS THE FACT THAT THE ASSESSING OFFICER HAD FRAMED TWO REGULAR ASSESSMENTS WELL BEFORE THE SEARCH IN QUESTION NOT LEADING TO ANY INCRIMINATING MATERIAL. WE THUS FOLLOW HONBLE JURISDICTIONAL HI GH COURTS DECISION IN PCIT VS. SAUMYA CONSTRUCTION PVT. LTD. TAX APPEAL NO. 24 OF 2016 HOLDING THAT THE ITA NOS. 977 & 978/AHD/16 [SHRI ANIL B. PATEL VS. A CIT ] A.YS. 2006-07 & 2008-09 - 7 - IMPUGNED PROCEEDINGS U/S. 153A OF THE ACT ARE NOT S USTAINABLE IN ABSENCE OF ANY INCRIMINATING MATERIAL OR EVIDENCE FOUND/SEIZED DUR ING THE COURSE OF SEARCH. WE THUS ACCEPT ASSESSEES LEGAL PLEA RAISED HEREINABOV E TO QUASH THE PROCEEDINGS UNDER CHALLENGE INITIATED BY THE ASSESSING OFFICER U/S.15 3A OF THE ACT. 6. THESE TWO ASSESSEES APPEALS ARE ALLOWED ACCORDI NGLY. [PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF MARCH, 2018.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 28/03/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // . /0