ACIT, C.C.-1, Ranchi V. Sri Kamal Bhushan, Ranchi

ITSSA 04/RAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7996 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-08-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 03-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJEET SINGH
• Keywords: Search and seizure; Period of limitation; Additional evidence; Question of law; Block assessment; Reason to believe; Documents seized; Reassessment proceedings; Set aside
• Section: 143(3); 153A; 234B; 37(1); 143(1); 246A; 64; 13; 153; 22; 153C; 147; 68; 148; 37; 132; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI, ECOURT, AT KOLKATA BEFORE SHRI S.S. GODARA, JM &DR. A.L.SAINI, AM ./IT(SS)A NOS.01 TO 04/RAN/2019 ( / ASSESSMENT YEARS:2009-10 TO 2012-13) ACIT,CC-1, RANCHI VS. SRI KAMAL BHUSHAN BISHWANATH BHAWAN, SUKHDEO NAGAR, BEHIND UPHAR CINEMA, HEHAL, MADHUKAM, RANCHI, JHARKHAN-834005 ./ ./PAN/GIR NO.: AFIPB 1844 G (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI INDERJEET SINGH, CIT (DR) RESPONDENT BY :SHRI DEVESH PODDAR, ADVOCATE / DATE OF HEARING : 22/07/2020 /DATE OF PRONOUNCEMENT : 24/08/2020 / O R D E R PER BENCH: THE CAPTIONED FOUR APPEALS FILED BY THE REVENUE, PERTAINING TO ASSESSMENT YEARS 2009-10 TO 2012-13 RESPECTIVELY, ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-3 , PATNA, WHICH IN TURN ARISE OUT OF SEPARATE ASSESSMENT ORDERS PASSED BY T HE ASSESSING OFFICER U/S 153A/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. SINCE THESE FOUR APPEALS FILED BY THE REVENUE R ELATE TO THE SAME ASSESSEE, DIFFERENT ASSESSMENT YEARS, COMMON AND IDENTICAL IS SUES ARE INVOLVED THEREFORE THESE HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CO NSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY.FOR THE SAKE OF CONVENIENCE, THE GROUNDS AS WELL AS THE FACTS NARRATED IN IT(SS) NO. 04 /RAN/2019, FOR ASSESSMENT SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 YEAR 2012-13, HAVE BEEN TAKEN INTO CONSIDERATION FO R DECIDING THE ABOVE APPEALS EN MASSE . 3. GROUNDS OF APPEAL AS PER LEAD CASE IN IT(SS)A N O. 04/RAN/2019 FOR AY. 2012- 13, ARE AS FOLLOWS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,0 2,59,880/- ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS DESPITE THE FACT THAT THE ASSESSEE FAILED TO DISCHARGE THE ONUS PLACED UPON HIM U/S 68 OF THE I.T. ACT, 19 61. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE BY ADMITTING CERTAIN FRESH EVIDENCE OR MATERIALS PRODUCED BY THE ASSESSEE IN C ONTRAVENTION OF THE PROVISIONS OF RULE 46A OF I. T. RULES, 1962. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF EX PENSES OF RS.2,55,96,663/- CLAIMED UNDER THE HEAD, 'PURCHASES & PAYMENT MADE F OR PLOTS, LANDS & BUILDING' DESPITE THE FACT THAT THE ASSESSEE FAILED TO DISCHA RGE THE ONUS CAST UPON HIM U/S 37(1) OF THE I. T. ACT, 1961. 4. ANY OTHER GROUND THAT MAY BE RAISED AT THE TIME OF HEARING. NOW WE SHALL TAKE THESE GROUNDS ONE BY ONE: 4. GROUND NO.1 RAISED BY THE REVENUE RELATES TO ADD ITION OF RS. 2,02,59,880/- ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS. 5. BRIEF FACTS QUA THE ISSUE ARE THAT DURING THE AS SESSMENT PROCEEDINGS THE ASSESSING OFFICER EXAMINED THE BALANCE SHEET OF THE ASSESSEE AND IT WAS NOTICED BY HIM THAT ASSESSEE HAS SHOWN SUNDRY CREDITORS OF RS. 3,27,96,977/-. FROM THE ANNEXURE/DETAILS, IT WAS NOTICED BY THE ASSESSING O FFICER THAT THE CREDITORS OF RS.2,02,59,880/- WERE NEWLY INTRODUCED DURING THE C URRENT YEAR. THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY IN THE ABSENCE OF ANY SUPPORTING DOCUMENTS IN REGARD TO - I) IDENTITY OF THE CREDITORS, II) CREDI TWORTHINESS OF THE CREDITORS AND III) GENUINENESS OF THE TRANSACTION, THE ABOVE AMOUNT SH OULD NOT BE TREATED AS INCOME OF THE ASSESSEE U/S 68 OF THE ACT. IN RESPONSE, TH E ASSESSEE SUBMITTED LEDGER COPY OF THE CREDITORS. HOWEVER, THE ASSESSING OFFICER WA S OF THE VIEW THAT SINCE NO PROOF SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 HAD BEEN SUBMITTED IN REGARD TO THE IDENTITY OR CRE DITWORTHINESS OF THE CREDITORS, THEREFORE HE MADE ADDITION OF RS. 2,02,59,880/- UND ER SECTION 68 OF THE ACT. 6.AGGRIVED BY THE ORDER OF THE ASSESSING OFFICER, T HE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELETED THE AD DITION MADE BY THE ASSESSING OFFICER,OBSERVING THE FOLLOWING: I HAVE CAREFULLY CONSIDERED THE FINDING OF THE LD. ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. ON A CAREFUL CONSIDERA TION, I AM OF THE VIEW THAT BEFORE DECIDING THE ISSUE ON MERITS IT WOULD BE OF VITAL IMPORTANCE TO DECIDE THE ISSUE GOVERNING THE LAW ON SEARCH ASSESSMENTS. ACCO RDING TO LAW THE MAIN CONTENTION OF THE APPELLANT IS THAT NO INCRIMINATIN G MATERIAL WAS SEIZED DURING THE COURSE OF SEARCH WITH REGARD TO NON-GENUINENESS OF SUNDRY CREDITORS OR THE ASSESSING OFFICER HAS REFERRED TO ANY SEIZED MATERI AL IN THE ASSESSMENT ORDER. ACCORDINGLY, THE APPELLANT RELYING ON LEADING DECIS IONS IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPN. LTD. 374 ITR 645 AND CIT VS. KABUL CHAWLA 380 ITR 573 CONTENDED THAT NO ADDITION CAN BE MADE IN AN UNABATED ASSESSMENT IN ABSENCE OF ANY INCRIMINATING MATERIAL SEIZED AS A RESULT OF SEARCH. UNDOUBTEDLY, IN THESE DECISIONS THE HONBLE HIGH CO URTS AND VARIOUS TRIBUNALS HELD THAT NO ADDITION(S) CAN BE MADE IN AN UNABATED ASSESSMENT IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH. HOWEVER, THE DEPARTMENT HAS CHALLENGED THE DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD [2015]. 5 8 TAXMANN.COM 78 BY WAY OF SLP AND THE HONBLE APEX COURT ADMITTED THE SLP AS REPORTED IN [2015] 64 TAXMANN.COM 34 (SC). HENCE THE QUESTION OF LAW ON T HIS ISSUE IS STILL PENDING AND SUB-JUDICE. 4.3.2 HOWEVER, CONTRARY TO THE DECISIONS QUOTED BY THE APPELLANT, INFOLLOWING DECISIONS NO SUCH RESTRICTION IS PLACED AND HELD TH AT, ONCE A SEARCH IS VALIDLY INITIATED THE AO IS DUTY BOUND TO ISSUE NOTICE U/S. 153A FOR ALL THE ASSESSMENT YEARS FALLING WITHIN THE BLOCK PERIOD AND THEREAFTE R CAN ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSEE NOT ONLY BASED ON THE MATERIAL GATHERED DURING THE SEARCH BUT ALSO ANY OTHER MATERIAL AVAILABLE WITH T HE AO AT THE TIME OF PASSING THE ASSESSMENT ORDER. THE HONBLE HIGH COURT OF DEL HI IN THE CASE OF CIT VS. ANIL KUMAR BHATIA REPORTED IN [2013] 352 ITR 493 HAS LUC IDLY EXPLAINED THE MEANING, SCOPE AND LEGISLATIVE INTENTION IN INTRODUCING SECT IONS 153A, 153B AND 153C. AS STATED AND EXPLAINED BY THE HONBLE COURT, SECTION 153A PROVIDES FOR 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT RUNS AS FOLLO WS: '153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOM E IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SU CH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS [SUB-SECTION] PENDING ON THE DATE OF INITIATIO N OF THE SEARCH UNDER SECTION 132A OR MAKING OF REQUISITION UNDER SECTION 132A, A S THE CASE MAY BE, SHALL ABATE. [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APPEAL O R ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SEC TION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSME NT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUBSECTION (1), SHALL S TAND REVISED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY T HE COMMISSIONER. PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFE CT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION.- FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT- (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR.' 17. THE THREE SECTIONS INTRODUCED W.E.F. 1.6.2003 R EPLACED THE 'POST SEARCH BLOCK ASSESSMENT SCHEME' IN RESPECT OF ANY SEARCH UNDER S ECTION 132 OR REQUISITION UNDER SECTION 132 A MADE AFTER 31.5.2003. IN CIRCUL AR NO.7 OF 2003 DATED 5.9.2003 REPORTED IN (2003) 263 ITR (ST) 62, THE NE W SCHEME WAS EXPLAINED BY THE CBDT IN THE FOLLOWING MANNER:, 65. THE SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES UNDER CHAPTER XIV-B BE ABOLISHED : 65.1 THE EXISTING PROVISIONS OF THE CHAPTER XIV-B P ROVIDE FOR A SINGLE ASSESSMENT OF UNDISCLOSED INCOME OF A BLOCK PERIOD, WHICH MEANS THE PERIOD COMPRISING PREVIOUS YEARS RELEVANT TO SIX ASSESSMEN T YEARS PRECEDING THE PREVIOUS, YEAR IN WHICH THE SEARCH WAS CONDUCTED AN D ALSO INCLUDES THE PERIOD UP TO THE DATE OF THE COMMENCEMENT OF SUCH SEARCH, AND LAY DOWN THE MANNER IN WHICH SUCH INCOME IS TO BE COMPUTED. SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 5 55 5 65.2 THE FINANCE ACT, 2003, HAS PROVIDED THAT THE P ROVISIONS OF THIS CHAPTER SHALL NOT APPLY WHERE A SEARCH IS INITIATED UNDER S ECTION 132, OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UND ER SECTION 132A AFTER MAY 31, 2003, BY INSERTING A NEW SECTION 158BI IN THE INCOM E-TAX ACT. 65.3 FURTHER THREE NEW SECTIONS 153A, 153B AND 153C HAVE BEEN INSERTED IN THE INCOME-TAX ACT TO PROVIDE FOR ASSESSMENT IN CAS E OF SEARCH OR MAKING REQUISITION. 65.4 THE NEW SECTION 153A PROVIDES THE PROCEDURE FO R COMPLETION OF ASSESSMENT WHERE A SEARCH IS INITIATED UNDER SECTIO N 132 OR BOOKS OFACCOUNT, OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UND ER SECTION 132A AFTER MAY 31, 2003. IN SUCH CASES, THE. ASSESSING OFFICER SHALL I SSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH, WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUISITION WAS MADE UNDER SEC TION 132A. 65.5 THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSESSMENT OR REASSESSM ENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAYBE, SHALL ABATE. IT IS CLARIFI ED THAT THE APPEAL, REVISION OR RECTIFICATION PROCEEDINGS PENDING ON THE DATE OF IN ITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION SHALL NOT ABATE. SAVE AS OTHERWI SE PROVIDED,IN THE PROPOSED SECTION 153A, SECTION 153B AND SECTION 153C, ALL OT HER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153A. IT IS ALSO CLARIFIED THAT ASSESSMENT OR REASSESSMENT MADE UNDE R SECTION 153A SHALL BE SUBJECT TO INTEREST, PENALTY AND PROSECUTION, IF AP PLICABLE. IN THE ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICA BLE TO SUCH ASSESSMENT YEAR. 65.6 THE NEW SECTION 153B PROVIDES FOR THE TIME LIM IT FOR COMPLETION OF SEARCH ASSESSMENTS. IT PROVIDES THAT THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT IN RESPECT OF EACH ASSES SMENT YEAR, FALLING WITHIN SIX ASSESSMENT YEARS UNDER SECTION 153A WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEARIN WHICH THE LAST OF THE AUTHORIZ ATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECU TED. 65.7 THIS SECTION ALSO PROVIDES THAT ASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEA RCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A SHALL BE COMPLETED WITHIN A PERIOD OF TWO YEARS; FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, WAS EXECUTED. 65.8 IT ALSO PROVIDES THAT IN COMPUTING THE PERIOD OF LIMITATION FOR COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT, THE PERIOD DURI NG WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJUNCTION OF A NY COURT; OR THE PERIOD COMMENCING FROM THE DAY ON WHICH THE ASSESSING OFFI CER DIRECTS THE ASSESSEE TO GET HIS ACCOUNTS AUDITED UNDER SUB-SECTION (2A) OF SECTION 142 AND ENDING ON THE SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 6 66 6 DAY ON WHICH THE ASSESSEE IS REQUIRED TO FURNISH A REPORT OF SUCH AUDIT UNDER THAT SUB-SECTION, OR THE TIME TAKEN IN REOPENING THE WHO LE OR ANY PART OF THE PROCEEDING OR GIVING AN OPPORTUNITY TO THE ASSESSEE OF BEING RE-HEARD UNDER THE PROVISO TO SECTION 129, OR IN A CASE WHERE AN APPLI CATION MADE BEFORE THE SETTLEMENT COMMISSION UNDER SECTION 245C IS REJECTE D BY IT OR IS NOT ALLOWED TO BE PROCEEDED WITH BY IT, THE PERIOD COMMENCING ON T HE DATE ON WHICH SUCH APPLICATION IS MADE AND ENDING WITH THE DATE ON WHI CH THE ORDER UNDER SUB- SECTION (1) OF SECTION 245D IS RECEIVED BY THE COMM ISSIONER UNDER SUB-SECTION (2) OF THAT SECTION, SHALL BE EXCLUDED. IF, AFTER THE E XCLUSION OF THE AFORESAID PERIOD, THE PERIOD OF LIMITATION AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT OR REASSESSMENT,, AS THE CASE MAY BE, IS LESS THAN SIXTY DAYS, SUCHREMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAY S AND THE PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY. 65.9 THE NEW SECTION 153C PROVIDES THAT WHERE AN AS SESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E, ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG OR BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN T HE BOOKS OF ACCOUNT, OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL B E HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST SUCH OTHER PERSON AND ISSUE S UCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH: OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. 65.10 AN APPEAL AGAINST THE ORDER OF ASSESSMENT OR REASSESSMENT UNDER SECTION 153A SHALL LIE WITH THE COMMISSIONER OF INCOME-TAX (APPEALS). 65.11 CONSEQUENTIAL AMENDMENTS HAVE ALSO BEEN MADE IN SECTIONS 132,132B, 140A, 234A, 234B, 246A AND 276CC TO GIVE REFERENCE TO SECTION 153A IN THESE SECTIONS. 65.12 THESE AMENDMENTS WILL TAKE EFFECT FROM JUNE 1 , 2003.' A PERUSAL 'OF SECTION 153A SHOWS THAT IT STARTS WIT H A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHICH IS COVERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER 31.5. 2003. THESE SECTIONS, THE APPLICABILITY OF WHICH HAS BEEN EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS. PRIOR TO, THE INTRODUCTION OF THESE THREE SECTIONS, THERE WAS CHAPTER XIV-B OF THE ACT WHICH TOOK CARE OF THE ASSESSMENT TO BE MADE IN CASES OF SEARCH AND SEIZURE. SUCH AN ASSESSMENT WAS POPULARLY KNOWNAS 'BLOCK ASSESSMENT BECAUSE THE CHAPTER PROVIDED FOR A SING LE ASSESSMENT TO BE MADE IN RESPECT OF A PERIOD OF A BLOCK OF TEN ASSESSMENT YE ARS PRIOR TO THE ASSESSMENT YEAR IN WHICH THE SEARCH WAS MADE. IN ADDITION TO THESE TEN ASSESSMENT YEARS, THE BROKEN PERIOD UP TO THE DATE ON WHICH THE SEARCH WA S CONDUCTED WAS ALSO INCLUDED IN WHAT WAS KNOWN AS 'BLOCK PERIOD. THOUG H A SINGLE ASSESSMENT ORDER WAS TO BE PASSED, THE UNDISCLOSED INCOME WAS TO BE ASSESSED IN THE DIFFERENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HAD TO BE MADE IN A SINGLE ASSESSMENT ORDER. THE BLOCK ASSESSMENT SO MADE WAS INDEPENDENT OF AND IN ADDITION TO THE NORMAL ASSESSMENT PROCEEDINGS AS CL ARIFIED BY THE EXPLANATION BELOW SECTION 158BA(2). AFTER THE INTRODUCTION OF T HE GROUP OF SECTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT W AS GIVEN A GO-BY. UNDER THE NEW SECTION 153A, IN A CASE WHERE A SEARCH IS INITI ATED UNDER SECTION 132 OR SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 7 77 7 REQUISITION OF BOOKS OF ACCOUNT, DOCUMENTS OR ASSET S IS MADE UNDER SECTION 132A AFTER 31.5.2003, THE ASSESSING OFFICER IS OBLIGED T O ISSUE NOTICES CALLING UPON THE SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH THE SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. THE OTHER DI FFERENCE IS THAT THERE IS NO BROKEN PERIOD FROM THE FIRST DAY OF APRIL OF THE FI NANCIAL YEAR IN WHICH THE SEARCH TOOK PLACE OR THE REQUISITION WAS MADE AND ENDING W ITH THE DATE OF SEARCH/REQUISITION. UNDER SECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE AO IS REQUIRED TO EXERCISE THE NORMAL ASSESSMENT POWER S IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. UNDER THE PROVISIONS OF SECTION 153A, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH RETURN'S FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THEA SSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITIO N WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASS ESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME OF THE AFORES AID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THEEARLIER BLOCK ASSESSMENT SCHEME I N WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULA R ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDERSECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO A SSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT OR DER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED A ND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1) (A) OR SECTION 1 43(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIOUSLY BEE N PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING N OTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPO SE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO AS SUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN RE MOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF SECTION 153A O PENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, A S PROVIDED IN SECTION 149 HAS ALSOBEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAU SE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING O FFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BE EN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HA VING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRU STED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE I S COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF N EED BE. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE S EARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SI X ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND P ROVISO TO SUB SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABAT E'. THE REASON IS NOT FAR TO SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 8 88 8 SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULT IPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CO NSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY T HE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESS EE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CAN NOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME O F THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPEC T OF THE SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME , IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB SECTION (1) OF SECTION 153A T HAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH AR E PENDING ON THE DATE OF. INITIATION OF THE SEARCH OR MAKINGREQUISITION 'SHAL L ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE A SSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETER MINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLAR ED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UNDISCLOSE D INCOME; IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT WHERE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE PENDING COMPLETION WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE; THEY WILL ABAT E MAKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESS EE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASES WHERE T HE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETE D AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL I NCOME AND SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUI SITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE AS SESSMENTS OR REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 14 7, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATIO N IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSM ENT ORDER AND THE INCOME: THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSE D AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDIN GS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CU LMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED O R THE REQUISITION WAS MADE. 4.3.3 FURTHER, THE HONBLE KERALA HIGH COURT IN THE CASE OF E. N. GOPAKUMAR VS CIT REPORTED IN [2017] 390 ITR 131 HAS OBSERVED THAT SECTION153A IS A PROVISION WHICH DEALS WITH ASSESSMENT IN CASE OF SE ARCH ORREQUISITION. THE ACTIVATION, OF A SEARCH IS NOT SOMETHING, WHICH IS REGULATED BYANY LIMIT AS TO PERIOD OF TIME. EVEN IF RETURNS ARE FILED AND REGUL AR ASSESSMENTS ARE CONCLUDED, SEARCH ON PREMISES COULD ALWAYS BE MADE; IF THE AUT HORITY CONCERNED IS SATISFIED THAT ACTION OUGHT TO PROCEED IN THAT LINE. ONCE THA T IS DONE, SECTION 153A(1)(A) AUTHORIZES THE ISSUANCE OF NOTICE CALLING FOR FILIN G OF RETURNS. ONCE A RETURN IS FILED IN ANSWER TO SUCH A NOTICE, THE EXPLANATION T O SECTION 153A PROVIDES, AMONG OTHER THINGS, THAT ALL PROVISION OF THE INCOME TAX ACT WILL APPLY TO THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT. THIS IS THEMANN ER IN WHICH THE PROVISIONS IN SECTIONS 153A, 153B AND 153C OF THE ACT WOULD REGUL ATE. ONCE THAT IS DONE, IT IS WELL WITHIN THE JURISDICTION OF THE ASSESSING AUTHO RITY TO PROCEED WITH ANY LAWFUL MODES OF ASSESSMENT AS PRESCRIBED IN THE ACT. THE S TATUTE NOWHERE, MAKES IT CONDITIONAL THAT THE DEPARTMENT HAS TO UNEARTH SOME INCRIMINATING MATERIAL TO SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 9 99 9 CONCLUDE SOME METHOD AGAINST THE ASSESSEE IN EVENTS WHERE THE ASSESSMENT IS TRIGGERED BY A NOTICE UNDER SECTION 153A(1)(A) OF T HE ACT. THIS MEANS THAT EVEN WHEN SUCH NOTICE IS TRIGGERED FOLLOWING A SEARCH, T HE ASSESSMENT PROCEEDINGS CAN BE CONCLUDED IN ANY MANNER KNOWN TO LAW, INCLUDING UNDER SECTION 143(3) OR EVEN SECTION 144 OF THE ACT, IF NEED BE. THEREFORE, THE ASSESSMENT PROCEEDINGS GENERATED BY THE ISSUANCE OF A NOTICE UNDER SECTION 153A(1)(A) OF THE ACT CAN BE CONCLUDED AGAINST THE INTEREST OF THE ASSESSEE INCL UDING MAKING ADDITIONS EVEN WITHOUT ANY INCRIMINATING MATERIAL BEING AVAILABLE AGAINST THE ASSESSEE IN THE SEARCH UNDER SECTION 132 OF THE ACT ON THE BASIS OF WHICH THE NOTICE WAS ISSUED UNDER SECTION 153A(L)(A) OF THE ACT. FURTHER IT IS IMPORTANT TO NOTE THAT, THE HONBLE COURT WHILE DELIVERING THE ABOVE JUDGMENT A LSO REFERRED TO THE DECISIONS IN THE CASE OF CIT V. KABUL CHAWLA 380 ITR 573 AND CIT V. CONTINENTAL WAREHOUSING CORPN. LTD. 374 ITR 645. 4.3.4 THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CITVS RAJ KUMARARORA [2014] 367 ITR 517 HAVE OBSERVED THAT UNDER THE BLO CK ASSESSMENT PROCEEDING UNDER CHAPTER XIV-B, ONLY THE UNDISCLOSED INCOME FO UND DURING THE SEARCH AND SEIZURE OPERATION WERE REQUIRED TO BE ASSESSED AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED. THE INTRODUCTION OF SEC TION 153A PROVIDES A DEPARTURE FROM THIS PROCEEDING. UNDER SECTION 153A, THE AO HAS BEEN GIVEN THEPOWER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSMENT YEARS, IN QUESTION IN SEPARATE ASSESSMENT ORDERS. CONSEQUENTL Y, THERE WOULD BEONLY ONE ASSESSMENT ORDER IN RESPECT OF SIX ASSESSMENT YEARS IN WHICH THE TOTAL DISCLOSED OR UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. CONSEQU ENTLY, EVEN THOUGH AN ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 143( L)(A) OR UNDER SECTION 143(3),THE AO WOULD BE REQUIRED TO REOPEN THESE PRO CEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTICE OF UNDISCLOSED INCOME EV EN FOUND DURING THE SEARCH AND SEIZURE OPERATION. THE FETTER IMPOSED UPON THE AO UNDER SECTIONS 147 AND 148 HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE UN DER SECTION 153A. WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE BEEN- PASSED, WHICH WERE SUB SISTING WHEN THE SEARCH WAS MADE, THE AO WOULD BE COMPETENT TO REOPEN THE ASSES SMENT; PROCEEDING ALREADY MADE AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE . THE AO, WHILE EXERCISING THE POWER UNDER SECTION 153A, WOULD MAKEASSESSMENT AND COMPUTE THE TOTAL INCOME OF THE ASSESSEE INCLUDING THE UNDISCLOSED IN COME, NOTWITHSTANDING THE ASSESSEE HAD FILED THE RETURN BEFORE THE DATE OF SE ARCH WHICH STOOD PROCESSED UNDER SECTION 143(1)(A). IN THE LIGHT OF THE AFORES AID, THE REASONS GIVEN BY THE TRIBUNAL THAT NO MATERIAL WAS FOUND DURING THE SEAR CH CANNOT BE SUSTAINED, SINCE THE AO HAS THE POWER UNDER SECTION 153A TO REASSESS THE RETURNS OF THE ASSESSEE NOT ONLY FOR THE UNDISCLOSED INCOME, WHICH WAS FOUN D DURING THE SEARCH OPERATION BUT ALSO WITH REGARD TO THE MATERIAL THAT WAS AVAI LABLE AT THE TIME OF THE ORIGINAL ASSESSMENT. 4.3.5 THE HONBLE KERALA HIGH COURT IN THE CASE OF FRANCIS GLAY DCOR TILES REPORTED IN [2015] 385 ITR 624 OBSERVED THAT ON GOI NG THROUGH SECTION 132 OF THE INCOME TAX ACT, WHAT WE FIND IS THAT IF THE AUTHORI TY SPECIFIED THEREIN HAS REASON TO BELIEVE THAT ANY PERSON TO WHOM A SUMMONS UNDER SUBSECTION (1) OF SECTION 37 OF THE INDIAN INCOME TAX ACT, 1922 (11 OF 1922), OR UNDER SUB-SECTION (1) OF SECTION 131 OF THE 1961 ACT, OR A NOTICE UNDER SUBS ECTION; (4) OF SECTION 22 OF THE INDIAN INCOME TAX ACT, 1922 (11 OF 1922), OR UNDER SUB-SECTION (1) OF SECTION 142 OF 1961 ACT WAS ISSUED TO PRODUCE, OR CAUSE TO BE P RODUCED, ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAS OMITTED OR FAILED TO PRODUCE , OR CAUSE TO BE PRODUCED, SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 10 00 0 SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS REQUIRE D BY SUCH SUMMONS OR NOTICE ETC., CAN AUTHORIZE THE OFFICERS REFERRED THEREIN T O ENTER AND SEARCH ANY BUILDING ETC. SUCH AUTHORIZED OFFICER UNDER SUB-SECTION (4) OF SECTION 132 MAY DURING THE COURSE OF SEARCH OR SEIZURE EXAMINE ON OATH ANY PER SON WHO IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT, DOCU MENT, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND AN Y STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION MAY THEREAFTER BE US ED IN EVIDENCE IN ANY PROCEEDING UNDER THE INDIAN INCOME TAX ACT, 1922 OR UNDER THE ACT 1961. THEREFORE, GOING BY THE SAID PROVISION NOT ONLY THE BOOKS, DOCUMENTS ETC., THAT ARE UNEARTHED DURING THE COURSE OF SEARCH BUT A STATEME NT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USED IN EVIDENC E IN ANY PROCEEDING UNDER THE INCOME TAX ACT, 1961. IT WAS FURTHER HELD THAT, ON A PLAIN READING OF SECTION 153A, IT IS CLEAR THAT ONCE SEARCH IS INITIATED UND ER SECTION 132 OR A REQUISITION IS MADE UNDER SECTION 132A AFTER THE 31ST DAY OF MAY 2 003, THE ASSESSING OFFICER IS EMPOWERED TO ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME -IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B). IT FURTHER TREATS THE RE TURNS SO FILED AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 . SO THAT ON A READING OF SECTION 153A(1), IT IS CATEGORICAL AND CLEAR THAT O NCE A NOTICE IS ISSUED ANDTHE ASSESSING OFFICER HAS REQUIRED THE ASSESSEE TO FURN ISH RETURN FOR A PERIOD OF SIX ASSESSMENT YEARS AS CONTEMPLATED UNDER CLAUSE (B) T HEN THE ASSESSEE HAS TO FURNISH ALL DETAILS WITH RESPECT TO EACH ASSESSMENT YEAR SINCE THE SAME IS TREATED AS A RETURN FILED UNDER SECTION 139. IT IS TRUE THA T AS PER THE FIRST PROVISO, THE ASSESSING OFFICER IS BOUND TO ASSESS OR REASSESS TH E TOTAL INCOME WITH RESPECT TO EACH ASSESSMENT YEAR FOLLOWING THE SIX ASSESSMENT Y EARS SPECIFIED IN SUB-CLAUSES (A) AND (B) OF SECTION 153A. HOWEVER, EVEN IF NO DO CUMENTS ARE UNEARTHED OR ANY STATEMENT MADE BY THE ASSESSEE DURING THE COURSE OF SEARCHUNDER SECTION 132 AND NO MATERIALS ARE RECEIVED FOR THE AFORE-SPECIFIED P ERIODOF SIX YEARS, THE ASSESSEE IS BOUND TO FILE A RETURN, IS THE SCHEME OF THE PRO VISION. EVEN THOUGH THE SECOND PROVISO TO SECTION 153A SPEAKS OF ABATEMENT OF ASSE SSMENT OR REASSESSMENT PENDING ON THE DATE OF THE INITIATION OF SEARCH WIT HIN THE PERIOD OF SIX ASSESSMENT YEARS SPECIFIED UNDER THE PROVISION THAT WILL ALSO NOT ABSOLVE THE ASSESSEE FROM HIS LIABILITY TO SUBMIT RETURNS AS PROVIDED UNDER SECTI ON 153A(1)(A). 4.3.6 THE HONBLE KERALA HIGH COURT IN ITS RECENT D ECISION IN THE CASE OF DR. A.V. SREEKUMAR VS. CIT, KOCHI REPORTED IN [2018] 40 4 ITR 642 HELD THAT RELIANCE PLACED BY THE CONSENT LETTERS OBTAINED BY THE DEPAR TMENT BY WAY OF A TAX EVASION PETITION COULD BE SUSTAINED AS VALID TO INITIATE PR OCEEDINGS UNDER SECTION 143 READ WITH SECTION 153A WHEN THE SAID DOCUMENT WAS NOT ON E RECOVERED IN THE SEARCH CONDUCTED IN THE PREMISES OF THE ASSESSEE. 4.3.7 AS STATED ABOVE THERE ARE DICHOTOMOUS DECISI ONS ON THIS ISSUE. ONE SET OF LEADING DECISIONS IN THE CASE OF CIT V. CONTINENTAL WAREHOUSING CORPN. LTD. 374 ITR 645 AND CIT V. KABUL CHAWLA 380 ITR 573 HELD TH AT NO ADDITION CAN BE MADE IN AN UNABATED ASSESSMENT IN ABSENCE OF ANY INCRIMI NATING MATERIAL FOUND AS A RESULT OF SEARCH. ON THE OTHER HAND ANOTHER SET OF LEADING DECISIONS IN THE CASE OF CIT VS. ANIL KUMAR BHATIA [2013] 352 ITR 493, E. N. GOPAKUMAR VS CIT [2017] 390 ITR 131, CIT VS RAJ KUMAR ARORA [2014] 367ITR 5 17 AND DR. A. V. SREEKUMAR VS. CIT [2018] 404 ITR 642 HELD THAT ADDI TIONS CAN BE MADE IN, AN UNABATED ASSESSMENTS EVEN THOUGH NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 11 11 1 4.3.8 HOWEVER, ON A CAREFUL READING OF THESE SETS OF DICHOTOMOUS DECISIONS, I AM OF THE CONSIDERED VIEW THAT THERE IS NO DISPUTE WITH REGARD TOABATED ASSESSMENTS. THE SOLE DISPUTE IS WITH REGARD TO THE SOURCE AND THEQUALITY/CREDIBILITY OF MATERIAL REQUIRED FOR TAM PERING WITH UNABATEDASSESSMENTS. AS LONG AS THERE IS A MATERIAL FOUND DURING THE COURSE OF SEARCH THERE IS NO DISPUTE TO TAMPER THE UNABATED A SSESSMENT. FURTHER ON A CAREFUL READING OF CASE LAWS CITED (SUPRA) , I AM O F THE VIEW THAT ANY OTHER MATERIAL INTHE POSSESSION OF THE AO AND HE HAS REAS ON TOBELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED, ASSESSMENT IS CAPABL E OF TAMPERING THE UNABATED ASSESSMENT. THE NATUREAND CREDIBILITY OF INFORMATIO N IN THE POSSESSIONOF AO CAN EITHER BE IN THE FORM CAG REPORT, TAX EVASION PETIT ION (TEP), INVESTIGATIONREPORT RECEIVED FROM THE PGIT(INV.), REPORTS OF OTHER LAW ENFORCING AGENCIES SUCH AS ENFORCEMENT DIRECTORATE, CBI, DRI, RBI, SEBI, GST E TC., ETC., OR WHERE ITR RAISES MORE QUESTIONS THAN SATISFYING THE QUERIES A LREADY RAISED. TO ASSUME JURISDICTION IN THESE TYPE OF CASES THE AO IS SAVED FROM THE FETTERS IMPOSED BY THE STRICT PROCEDURE OF SECTIONS 147, 148 AND 149 AS S EC.153A(1) OPENS WITH NON OBSTANTE CLAUSE. AT THE SAME TIME THE AO IS NOT ALL OWED TOTAMPER THE UNABATED ASSESSMENT;FOR MAKING ROWING ENQUIRIES, OR FOR MAKI NG AD-HOC DISALLOWANCES/ADDITIONS BASED ON SURMISE AND CONJEC TURE. HENCE IN NUTSHELL THE SOURCE, QUALITY AND CREDIBILITY OF MATERIAL EMPOWER S, THE AO TOTAMPER THE UNABATED ASSESSMENT. 4.3.9 SEEN FROM THE ABOVE PERSPECTIVE THE MERITS OF THE APPELLANTS CASEARE THAT THE APPELLANT IS A PROPERTY DEVELOPER AND AGENT ENG AGED IN BUYING, SELLING AND DEVELOPING OF THE PLOTS AND PROPERTIES. DURING THE YEAR THEAPPELLANT HAS SHOWN GROSS RECEIPTS OF RS. 1,18,51,828/-, COMMISSION INC OME OF RS.2,11,49,900/- CLOSING STOCK IN THE FORM OF PLOTS, LANDS BUILDING OF RS.4,62,83,887.44/- AND GROSS PROFIT OF RS.82,75,463.45. AS PER THE AUDITED BALAN CE SHEET, THE TOTAL SUNDRY CREDITORS WAS OF RS. 3,27,96,977.50/- OUT OF WHICH RS. 2,02,59,880/- WERE NEW CREDITORS. THESE SUNDRY CREDITORS ARE NOTHING BUT P AYMENTS RECEIVED BY THE APPELLANT AS ADVANCE FROM THE PARTIES. AS IS EVIDEN T FROM THE RECORDS PRODUCED BY THE APPELLANT, THE APPELLANT HAD FURNISHED COMPLETE DETAILS OF SUNDRY CREDITORS BEFORE THE AO. HOWEVER,THE AO WITHOUT MAKING ANY FU RTHER ENQUIRY ON THE DETAILS SUBMITTED HAD SIMPLY IGNORED THE SAME AND CAST THE ENTIRE ONUS ON THE APPELLANT JUST BY INVOKING SEC.68 OF THE ACT. IN OTHER WORDS, THE AO WITHOUT REFERRING TO ANY SEIZED MATERIAL OR REFERRING TO ANY CREDIBLE INFORM ATION IN HIS POSSESSION HAS SIMPLY DOUBTED THE SUNDRY CREDITORS. EVEN DURING TH E SEARCH U/S.132(1) WHICH IS THE FINAL WEAPON OF THE DEPARTMENT TO UNEARTH THE U NDISCLOSED INCOME, NO ADVERSE MATERIAL IN THIS REGARD APPEARS TO, HAVE BEEN FOUND AS THE AO HAS NOT REFERRED TO THE SAME IN THE ORDER. HENCE, ADDITIONS MADE PURELY ON GUESS WORK AND SURMISE CANT FIND ANY SUPPORT AND ACCORDINGLY THE AO IS DI RECTED TO DELETE THE ADDITION MADE OF RS.2,02,59,880/-. 7. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 8. THE LD. DR FOR THE REVENUE, BEFORE US, HAS PRIM ARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREAD Y NOTED IN OUR EARLIER PARA SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 12 22 2 AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY AND ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED ON THE ORDE R OF THE LD CIT(A). 9. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GON E THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCU MENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. TH E ASSESSEE SUBMITS THAT AS PER THE AUDITED BALANCE SHEET OF THE ASSESSEE, THE TOTA L SUNDRY CREDITORS WERE FOR RS. 3,27,96,977/- OUT OF WHICH RS. 2,02,59,880/- WERE N EW CREDITORS FOR THE YEAR. THE SAID AMOUNT WAS RECEIVED BY THE ASSESSEE FROM DIFFE RENT PARTIES WHICH HAVE DULY BEEN REFLECTED IN ASSESSEE`S BOOKS OF ACCOUNTS. DUR ING THE ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITTED MONTHLY SUMMARY LEDGER FOR A LL THE PARTIES FROM WHOM PAYMENTS WERE RECEIVED. ALL THE CREDIT BALANCES HAV E BEEN DULY REFLECTED IN ASSESSEE`S BOOKS AND AMOUNTS WERE RECEIVED IN DUE C OURSE OF BUSINESS. AS MENTIONED, THE ASSESSEE IS A PROPERTY DEVELOPER AND AGENT ENGAGED IN BUYING, SELLING AND DEVELOPING OF THE PLOTS AND PROPERTIES. THE PAYMENTS RECEIVED BY THE ASSESSEE WERE THE ADVANCE FROM THE PARTIES. COMPLET E DETAIL OF THE SAME WAS FILED BEFORE LD. AO DURING THE COURSE OF ASSESSMENT. THE LD. ASSESSING OFFICER WHILE MAKING THIS ADDITION U/S 153A HAS NOWHERE REFERRED TO ANY SEIZED OR INCRIMINATING MATERIAL OR DOCUMENT. WE NOTE THAT THE HONBLE DELHI HIGH COURT IN THE C ASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HELD AS UNDER: - '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 UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE P ERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDI NG THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPU TED BY THE LD AOS AS A FRESH EXERCISE. (III) THE LD AO WILL EXERCISE NORMAL ASSESSME NT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE LD AO HAS SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 13 33 3 THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS S HOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE LD AO WH ICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY O N THE BASIS OF SEIZED MATERIAL.' (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO C OMPLETE ASSESSMENT PROCEEDINGS. (VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECOR D OF THE LD AO. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE LD AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLO SED 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.' 38. THE PRESENT APPEALS CONCERN AYS 2002-03, 2005-0 6 AND 2006-07, ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STO OD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. WE NOTE THAT THE MAIN CONTENTION OF THE ASSESSEE IS THAT NO INCRIMINATING MATERIAL WAS SEIZED DURING THE COURSE OF SEARCH WITH REGARD TO SUNDRY CREDITORS.WE RELY ON THE JUDGMENT OF THE HON`BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 573 (SUPRA) AND THEREFORE WE ARE OF THE VIEW THAT NO ADDITION CAN BE MADE IN AN UNABATED ASSESSMENT IN ABSENCE OF ANY INCRIMINATING MATERIAL SEIZED AS A RESULT OF SEARCH.THAT BEING SO, WE DECL INE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A), HIS ORDER, ON THIS ISSUE, IS HEREBY UPHELD AND GROUND NO. 1 RAISED BY THE REVENUE IS DISMISSED. SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 14 44 4 10. GROUND NO. 2 RAISED BY THE REVENUE WHICH READS AS FOLLOWS: 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE BY ADMITTING CERTAIN FRESH EVIDENCE OR MATERIALS PRODUCED BY THE ASSESSEE IN C ONTRAVENTION OF THE PROVISIONS OF RULE 46A OF I. T. RULES, 1962. 11. WE HAVE GONE THROUGH THE ORDER OF THE LD CIT(A) AND NOTED THAT DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE DID NOT SUBMIT ANY ADDITIONAL EVIDENCES BEFORE THE LD CIT(A). WE NOTE THAT DURING THE APPELLATE PR OCEEDINGS, THE ASSESSEE SUBMITTED TWO ADDITIONAL GROUNDS, WHICH ARE AS FOLL OWS: ADDITIONAL GROUNDS: 1. THE APPELLANT FILED DETAILS OF THE PAYMENT MADE FOR PURCHASE OF LAND, PLOTS AND BUILDINGS WHICH WERE SOLD DURING THE YEAR REFLE CTED IN THE PROFIT AND LOSS ACCOUNT FILED BY THE APPELLANT. THE SALE PROCEED AG AINST THESE PLOTS HAS BEEN ACCEPTED. RETURN FILED EARLIER WAS ALSO ACCEPTED. 2. FOR THAT INTEREST U/S 234A AND 234B SHOULD HAVE BEE N CHARGED ON THE RETURNED INCOME AND NOT ON THE ASSESSED INCOME FOLL OWING THE DECISION OF HONBLE JHARKHAND HIGH COURT. THE LD CIT(A) HAS ADJUDICATED THESE TWO ADDITIONAL GROUNDS AS FOLLOWS: I HAVE CAREFULLY CONSIDERED THE ADDITIONAL GROUNDS FILED BY THE APPELLANT. THE APPELLANT VIDE GROUND NO.1 IS TRYING TO BRING I N NEW FACTS WHICH REQUIRE FURTHER INVESTIGATION AND IF ADMITTED SHALL HAVE AD VERSE IMPACT ON THE ORDER OF ASSESSMENT. HENCE, ADDITIONAL GROUND NO.1 IS HEREB Y REJECTED. HOWEVER, ADDITIONAL GROUND NO. 2 BEING A BONA FIDE & LEGAL G ROUND AND IS EMANATING FROM THE ORDER UNDER APPEAL, THE SAME IS ADMITTED A ND WILL BE ADJUDICATED SUBSEQUENTLY. WE NOTE THAT OUT OF THESE TWO ADDITIONAL GROUNDS, T HE LD CIT(A) HAD REJECTED THE GROUND NO.1 AND DID NOT ADMIT IT, HENCE THERE IS NO QUESTION OF ADDITIONAL EVIDENCE. GROUND NO.2 RAISED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS RELATES TO CHARGING OF INTEREST UNDER SECTION 243A AND 234B OF THE ACT. SINCE IT IS A SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 15 55 5 LEGAL ISSUE AND EMANATED FROM ASSESSMENT ORDER, HEN CE IT CAN NOT BE TREATED AS ADDITIONAL EVIDENCE. TAKING INTO ACCOUNT THE FACTUAL POSITION NARRATED A BOVE THERE IS NO ANY VIOLATION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, THEREFORE WE DISMISS GROUND NO.2 RAISED BY THE REVENUE. 12. GROUND NO. 3 RAISED BY THE REVENUE RELATES TO D ISALLOWANCE OF EXPENSES OF RS. 2,55,96,663/- CLAIMED UNDER THE HEAD PURCHASES & P AYMENT MADE FOR PLOTS, LANDS & BUILDING. 13. BRIEF FACTS QUA THE ISSUE ARE THAT DURING THE S CRUTINY PROCEEDINGS IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS DEBI TED TO ITS PROFIT AND LOSS ACCOUNT BY RS.1,58,55,370/-UNDER THE HEAD, PURCHASES & PAY MENTS MADE FOR PLOTS, LANDS & BUILDINGS, RS.45,90,000/- UNDER THE HEAD, LAND LEVELING EXPENSES AND RS.51,51,293/- UNDER THE HEAD, BOUNDARY EXPENSES. THE ASSESSEE WAS ASKED TO SUBMIT THE LEDGER OF THESE EXPENSES ALONG WITH ALL THE UNDERLYING BILLS & VOUCHERS. HOWEVER, ASSESSEE COULD NOT FURNISH DETAILS OF THES E EXPENSES THEREFORE ASSESSING OFFICER MADE ADDITION OF RS. 2,55,96,663/- AND ADDE D BACK TO THE TOTAL INCOME OF THE ASSESSEE FOR THE YEAR. 14. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELE TED THE ADDITION MADE BY THE ASSESSING OFFICER, OBSERVING THE FOLLOWING: I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE LD . ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. AS STATED EARLIER THE APPELLANT IS A PROPERTY DEVELOPER AND AGENT ENGAGED IN BUYING, SELLING AND DEVELOPING OF THE PLOTS AND PROPERTIES. DURING THE YEAR THE APPELLANT HAS SHOWN GROSS RECEIPTS OF RS. 1,18,51,828/-, COMMISSION INCOME OF RS. 2,11,249,90 0/- CLOSING STOCK IN THE FORM OF PLOTS, LANDS & BUILDING OF RS. 4,62,83,887.44/- AND GROSS PROFIT OF RS. 82,75,463.45. FURTHER, THE APPELLANT IN THE P & L A CCOUNT CLAIMED RS. 1,58,55,370.50/- ON ACCOUNT OF PAYMENTS MADE FOR PU RCHASE OF PLOT, LAND & BUILDING, RS. 45,90,000/- ON ACCOUNT OF LAND LEVELI NG EXPENSES AND RS. 51,51,293/- ON ACCOUNT OF BOUNDARY EXPENSES. AS IS EVIDENT FROM THE RECORDS PRODUCED BY THE APPELLANT, THE APPELLANT HAD FURNISHED COMPLETE DET AILS OF EXPENSES ON THESE ACCOUNTS BEFORE THE ASSESSING OFFICER. FURTHER IT I S IMPORTANT TO NOTE THAT NO EVIDENCE WHATSOEVER WHICH CAN REMOTELY CAST DOUBTS ON THESE EXPENSES WERE SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 16 66 6 FOUND DURING THE SEARCH. HOWEVER, THE ASSESSING OFF ICER WITHOUT MAKING ANY FURTHER ENQUIRY ON THE DETAILS SUBMITTED HAD SIMPLY IGNORED THE SAME AND CAST THE ENTIRE ONUS ON THE APPELLANT. IN OTHER WORDS, THE A SSESSING OFFICER WITHOUT REFERRING TO ANY SEIZED MATERIAL OR REFERRING TO AN Y CREDIBLE INFORMATION IN HIS POSSESSION HAS SIMPLY DOUBTED THE EXPENSES CLAIMED. IN GROUND NO.1, I HAVE GIVEN A DETAILED FINDING WITH REGARD TO THE CIRCUMSTANCES UNDER WHICH, THE ASSESSING OFFICER CAN TAMPER WITH UNABATED ASSESSMENT. IN VIE W OF THE SAME, ADDITIONS MADE PURELY ON GUESS WORK AND SURMISE CANT FIND A NY SUPPORT AND ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADD ITION MADE OF RS. 2,55,96,663/-. 15. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE RE VENUE IS IN APPEAL BEFORE US. 16. THE LD. DR FOR THE REVENUE, BEFORE US, HAS PRI MARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREAD Y NOTED IN OUR EARLIER PARA AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY AND ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED ON THE ORDE R OF THE LD CIT(A). 17. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY G ONE THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT LD. AO MADE ADDITION OF RS. 2,55,96,663/- DEBITED UNDER THE HEA D PURCHASE AND PAYMENT MADE FOR PLOTS, LAND AND BUILDINGS, AND OTHER EXPENSES S HOWN IN PROFIT AND LOSS ACCOUNT. BEFORE US, THE LD COUNSEL SUBMITS THAT RS. 1,58,55, 370/- IS ON ACCOUNT OFPURCHASES AND PAYMENTS MADE FOR PLOT, LAND AND BUILDING. COPY OF AUDITED PROFIT AND LOSS ACCOUNT WAS FILED IN WHICH THE PURCHASE PRICE OF TH E PLOTS PURCHASED WAS DULY DISCLOSED. THE DETAILS OF PURCHASES AND PAYMENT DET AILS THEREOF WERE FURNISHED. THE ASSESSEE ALSO INCURRED EXPENSES OFRS. 45,90,000 /- AND CLAIMED UNDER LAND LEVELING EXPENSES AND A SUM OF RS. 51,51,293/- CLAI MED AS BOUNDARY EXPENSES.WE NOTE THAT THIS BEING ASSESSMENT U/S 153A OF THE ACT THEREFORE THE ADDITION SHALL ONLY BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND OR SEIZED. WE HAVE MENTIONED OUR DETAILED REASONING IN PARA NO. 9 OF T HIS ORDER STATING THAT IN CASE OF UNABATED ASSESSMENT ADDITION SHOULD NOT BE MADE WIT HOUT ANY INCRIMINATING MATERIAL. THAT BEING SO, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. SRI KAML BHUSHAN IT(SS)A NOS. 01 TO 04/RAN/2019 ASSESSMENT YEARS:2009-10 TO 2012-13 P PP PA AA AG GG GE EE E | || | 1 11 17 77 7 CIT(A), HIS ORDER ON THIS ISSUE IS HEREBY UPHELD AN D GROUND NO. 3 RAISED BY THE REVENUE IS DISMISSED. 18. IN THE RESULT, ALL THE APPEALS OF THE REVENUE(I T(SS)A NOS.01 TO 04/RAN/2019)ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24.08.2020 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE:24/08/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ACIT, CC-1, RANCHI 2. SRI KAMAL BHUSHAN 3. C.I.T(A)- 4. C.I.T.- RANCHI 5. CIT(DR), RANCHI BENCH, RANCHI . 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, RANCH I BENCH V