D.C.I.T., CC-3(4), Kolkata, Kolkata V. Shri Dinesh Kumar Himatsingka, Kolkata

ITSSA 110/KOL/2022

AI Insights

The case involves an appeal by the Deputy Commissioner of Income Tax against the order of the CIT(Appeals), which had deleted the addition of undisclosed income in the hands of Shri Dinesh Kumar Himatsingka for the Assessment Year 2006-07. The addition was related to amounts found in accounts at HSBC, Geneva, which were also linked to the assessee's brother, Shri Ajoy Kumar Himatsingka. The Tribunal examined whether the same amount could be added substantively in the hands of both brothers and found that it could not, leading to the dismissal of the Revenue's appeal. The Tribunal also addressed the applicability of Rule 8D for the disallowance under section 14A, concluding that it was not applicable for the relevant assessment year.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302880 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-03-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-12-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 03-11-2022
• Other Referred Cases: Shri Ajoy Kumar Himatsingka [IT(SS)A. No. 27/KOL/2022]
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Sale consideration of property below Jantri Value; Question of law; Rule 8D
• Section: 147; 132; 144; 139; 143(3); 153A; 14A; 143(1); 143(2); 264; 73; 153; 153C

Judgement Text

IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President (KZ) & Shri Girish Agrawal, Accountant Member I.T.(SS)A. No. 110/KOL/2022 Assessment Year: 2006-2007 Deputy Commissioner of Income Tax,.........Appellant Central Circle-3(4), Kolkata, Aayakar Bhawan Poorva, 5 th Floor, Room NO. 516, 110, Shanti Pally, Kolkata-700107 -Vs.- Shri Dinesh Kumar Himatsingka,.............Respondent 173, RMV Extension, 8 th B Main Road, Sadashivnagar, Karnataka, Bangalore-560080 [PAN: AAQPH4750C] & C.O. No. 21/KOL/2022 [in I.T.(SS)A. No. 110/KOL/2022] Assessment Year: 2006-2007 Shri Dinesh Kumar Himatsingka,........Cross Objector, 173, RMV Extension, 8 th B Main Road, Sadashivnagar, Karnataka, Bangalore-560080 [PAN: AAQPH4750C] -Vs.- Deputy Commissioner of Income Tax,........Respondent Central Circle-3(4), Kolkata, Aayakar Bhawan Poorva, 5 th Floor, Room NO. 516, IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 2 110, Shanti Pally, Kolkata-700107 Appearances by: Shri P.P. Barman, Addl. CIT, appeared on behalf of the Revenue Shri Miraj D. Shah, A.R., appeared on behalf of the assessee Date of concluding the hearing : December 29, 2022 Date of pronouncing the order : March 16, 2023 O R D E R Per Rajpal Yadav, Vice-President (KZ):- The Revenue is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals), Kolkata-21 dated 17.08.2022 passed for A.Y. 2006-07. 2. On receipt of notice in the appeal of Revenue, the assessee has filed Cross Objection bearing No. 21/KOL/2022. 3. The Revenue has taken following grounds of appeal:- “(1) That on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of undisclosed income in HSBC, Geneva. (2) That the revenue reserves its rights to substantiate, modify, delete, supplement and/or alter the grounds at any time of the appeal proceedings”. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 3 4. Brief facts of the case are that a search & seizure operation under section 132 of the Income Tax Act was conducted in Himatsingka Group of Cases on 22.09.2011 and on subsequent dates, the premises of the assessee was also covered under the search operation. According to the ld. Assessing Officer, the key persons of the Group are Shri Ajoy Kumar Himatswingka (i.e. elder brother of assessee) and the assessee himself. A notice under section 153A dated 02.05.2022 was issued directing the assessee to file return of income for A.Y. 2006-07. It is pertinent to note that original return was filed by the assessee on 28.07.2006 declaring total income of Rs.2,45,06,523/-. In response to the notice under section 153A, the return was filed by the asseessee on 23.05.2012 disclosing total income of Rs.2,45,06,520/-. The ld. Assessing Officer has passed the assessment order under section 153A read with 143(3) of the Income Tax Act on 30.03.2015. He determined the taxable income of the assessee at Rs.6,97,49,458/-. The ld. Assessing Officer has made two additions, namely- (i) Disallowance under section 14A Rs. 2,864/- (ii) Undisclosed income in HSBC Bank, Geneva Rs.4,52,40,074/- 5. Similar addition was made on substantive basis in the hands of assessee’s brother Shri Ajoy Kumar Himatsingka (since deceased). The dispute in his case travelled upto the Tribunal and in paragraphs no. 4, 5 & 6, Tribunal has noticed the facts. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 4 Since the facts in the present appeal are the other side of the same coin because ld. Assessing Officer has made addition of the same amount in the hands of both the assessees on substantive basis, therefore, for the facility of reference, we take up the facts noticed by the Tribunal in the case of Shri Ajoy Kumar Himatsingka [IT(SS)A. No. 27/KOL/2022]:- “4. During the course of search as well as assessment proceedings under section 153A of the Act, the Assessing Officer stated that the Government of India received certain information that the appellant had operated Bank Accounts with client ID BUP_SIFIC_PER_ID 5090159437 and Code BUP_SIFIC_PER_ID:5090159438 in Switzerland with HSBC Bank. The Assessing Officer furnished a copy of the information sheet of HSBC Bank, Switzerland allegedly in respect of the appellant and asked the explanation of the appellant as to why the name of the appellant is appearing in the said sheet and what are the nature of transaction in the said account. The said Information Sheet was unsigned and unauthenticated document and was written in a foreign language. No translation of the same in English language or vernacular language was obtained by the Assessing Officer nor was it given to the appellant for his explanation thereon. The appellant furnished an affidavit sworn by him on 24 th December 2014 affirming that during the course of search, the officials of Investigation Wing had shown some typed papers in regard to some account with HSBC, Geneva which was not found from his premises during search. That in course of investigations by the DDIT (Inv.), the appellant had furnished evidences being communications received from HSBC, Geneva that the said bank accounts belonged to Gingest Marketing Ltd. and Masonic Ltd., which names were mentioned in the aforesaid typed documents also. The said communication from HSBC, Geneva contained the names of the shareholders and directors of Gingest Marketing Ltd., and also Masonic Ltd., the two companies incorporated in British Virgin Island. The copy of the Memorandum and Articles of the said two companies and the financial statements and the assets holding statements of the companies were also furnished. Such documents which were filed before the DDIT(Inv.) proved beyond doubt that the said bank accounts belonged to Gingest Marketing Ltd. and Masonic Ltd. companies incorporated in British Virgin Island IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 5 and that the Appellant had no interest of any kind whatsoever in the said bank accounts. In spite of this, the assessing officer repeated the allegations and the appellant again stated that the alleged bank accounts with HSBC Bank, Geneva, belonged to Gingest Marketing Ltd. and Masonic Ltd. the two companies incorporated in British Virgin Island wherein the appellant was neither a director nor a shareholder. In support of these contentions, the appellant further furnished a confirmatory letter from HSBC, Geneva clarifying that the aforesaid two bank accounts belonged to Gingest Marketing Ltd. and Masonic Ltd. respectively, the two companies incorporated in British Virgin Island and that the director of those companies was First Corporate Director Inc. and that these two companies were owned by HSBC Group whose authorised signatories were solely HSBC Group employees. During the course of assessment proceedings, the appellant was directed to sign consent form authorising the HSBC, Geneva to provide details of the said bank accounts to the Assessing Officer to which the appellant agreed and signed. The assessing Officer, admittedly, did not get any reply to the said letter nor the appellant get any information from the bank in respect of the said bank accounts. This fact was intimated to the Assessing Officer repeatedly number of times. 5. The Assessing Officer, without bringing any legal evidence on record held that the appellant was the beneficial owner of the aforesaid bank accounts and on suspicion added the sum of Rs. 4,52,40,074 equivalent to US$ 10,17,088 and Rs.20,80,685 equivalent to US$ 46778, being the balance in the said bank accounts as on 31 March 2006 and as on 31 December 2005 of Gingest Marketing Ltd. and Masonic Ltd. respectively, in the impugned assessment. The Assessing Officer had no positive evidence and wanted the Appellant to prove that he was not the accountholder of the said bank accounts. The Assessing Officer arbitrarily drew an adverse inference against the appellant on the ground that the appellant could not furnish the details of some trust mentioned by HSBC, Geneva in their letter when the appellant could not have any knowledge thereof in as much as he had no interest or knowledge therein. The appellant never admitted that any of the transactions in the said bank accounts with HSBC belonged to the appellant. There is no evidence on record that the appellant, at any point of time whatsoever, made any deposits in the said bank accounts in the relevant previous year or at any time whatsoever since the inception of the said bank accounts. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 6 6. Aggrieved the assessee preferred an appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee filed detailed submissions and also filed all the papers as were filed with the A.O. The written submissions filed by the Appellant are set out at pages 9 to 35 of the order of CIT(A). It was also submitted before him that as no incriminating materials were found in course of the search and no assessment proceedings were pending on the date of the search, no addition could be made as assessment had not abated. It was also submitted that it is a fact that no addition has been made with reference to any seized materials pursuant to Section 153A of the Act. The CIT(A), however, did not agree with any of the submissions made by the Appellant and confirmed the assessment in totality. The findings of the CIT(A) in respect of the addition starts from page 47 till 51 of his order”. 6. As observed earlier, the ld. Assessing Officer has made additions on substantive basis in the hands of assessee also. However, on appeal, ld. CIT(Appeals) has deleted this addition by observing that there cannot be double addition of the same amount in the hands of two individuals. The ld. CIT(Appeals) held that Shri Ajoy Kumar Himatsingka is the main person managing affairs of all the Companies and, therefore, addition is sustainable in his case. The relevant finding recorded by the ld. CIT(Appeals) in the case of Shri Dinesh Kumar Himatsingka (i.e. assessee) reads as under:- “A perusal of the information present before the AO at the time of making the impugned assessment - as written by him in his order, and reproduced supra - shows that even though in the case of the appellant (as in the case of Shri Ajay Kumar Himasingka) an internal identification number has been shown, the statement of bank account on the basis of which additions have been made are those of Masonic Ltd and Gingest Marketing. The fact that the said IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 7 amounts were in the bank accounts and names of the aforementioned companies is also borne out by the rest of the information provided through the Swiss authorities (information that was already provided by the appellant to the AO during assessment but was authenticated only much later). The balance sheets and Statements of Assets of the two companies for an array of financial periods, which include the instant impugned AY, are also present in the above authenticated information. An examination of these statements of Assets shows that the amounts in the bank accounts are included in these statements and other documents.' The additions made by the AO, therefore, in- the" cases, both’ of Ajay Kumar Himatsingka and of Dinesh Kumar Himatsingka, for this impugned AY, were based solely upon the amounts that stood either in the name of Masonic Ltd or that of Gingest Marketing. It has been held is the appeal order of Shri Ajay Kumar Himatsingka, discussed supra, that these amounts were to be taxed in the hands of Shri Ajay Kumar Himatsingka on account of the fact that he was the controller of these two companies and for the reasons discussed at length supra. Now what remains to be seen is whether Shri Dinesh Kumar Himatsingka - the present appellant - could also be said to have exercised any control over these two companies, thus making him also some form of a beneficial/proxy owner of the assets of these two companies. A perusal of the documents provided by the Swiss authorities brings to light the following facts in this connection. The register of members of these two companies shows that only Shri Amitabh Himatsingka, the son of Shri Ajay Kumar Himatsingkq was the owner of these companies. There was no mention of the name of the present appellant, nor was there any mention of his name in the register of Directors/ Secretaries for the two companies. The names and addresses of the subscribers to these two companies also showed no sign or presence of the appellant. The HSBC bank had confirmed that Masonic Ltd had relationship number 1373501 with the controlling shareholding (60%) being with Shri Amitabh Himatsingka, directly related (son) to Shri Ajay Kumar Himatsingka and not directly to Shri Dinesh Kumar Himatsingka. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 8 From the above discussions it is quite clear that the appellant, Shri Dinesh Kumar Himatsingka was neither connected legally to either of the aforementioned companies nor indeed was he in any position to exercise any form of control over these two companies. This is in marked contrast to the control exercised by Shri Ajay Kumar Himatsingka who exercised direct control over these companies through the medium of his son. It is also undisputed that the amounts added stand in the names of Masonic Ltd or Gingest Marketing. To sum it up, the view taken in the appeal for this same period in the case of Shri Aiay Kumar Himatsingka - and as borne out by the facts.and circumstances of these appeals - is that the impugned money standing in the names of Masonic Ltd and Gingest Marketing was in reality the moneys of the persons operating behind the scenes for this entire set of transactions, the very people who were the actual controllers of these companies and the assets including moneys with these companies. Assessment of income rests on the well established bedrock of the principle of preponderance of probabilities. In this case it is found that the present appellant, Shri Dinesh Kumar Himatsingka was exercising no control over the said companies, either legally, or through indirect means of being the father of the person who was the legal owner of these companies, and therefore the moneys and assets standing in the names of these two companies could not be said to be for the benefit of the appellant. This is especially true in the present circumstances when the said moneys have already been assessed substantively in the hands of Shri Ajay Kumar Himatsingka, and thereafter been confirmed in his hands in appeal. One additional circumstance which also lends further credence to the inference that the impugned moneys should have been taxed substantively in the hands of Shri Ajay Kumar Himatsingka and not in those of the resent appellant, is the view taken by the AO himself in these entire group of cases. I find that the AO has made additions in respect of money’s standing in bank accounts of the aforementioned companies in HSBC, Geneva, in two different periods, viz., AY 2006-07 and AY 2007-08. But, while in the case of Shri Ajay Kumar Himatsingka this addition was made in both the above AYs - 2006-07 and 2007-08; in the case of Shri Dinesh Kumar Himatsingka, the addition on this basis was made only in the AY 2006- IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 9 07. The assessment u/s 153A , for AY 2006-07, was duly completed in the case of Snri Dinesh Kumar Himatsingka without making any additions. This is a very strange action on the part of the AO if he indeed was of the opinion that both, Shri Ajay Kumar Himatsingka and Shri Dinesh Kumar Himatsingka were the owners of the said moneys. This Is because the said add’tions emanated from the same core material regarding- the financial documents, .The assets and the balance sheets of the two companies, Masonic Ltd and Gimlets Marketing ranging over several years. These core documents were always on record before the AO while making assessments for AYs 2006-07 and 2007-08. The fact that he made the addition in the hands of both the assessees, Shri Ajay Kumar Himatsingka and Shri Dinesh Kumar Himatsingka, in the AY 2006-07, but chose to do so only in the hands of Shri Ajay Kumar Himatsinbgka in the AY 2007-08, even though the assessment was done in the case of Shri Dinesh Kumar Himatsingka also, itself shows that the AO held the opinion that the main person in this transaction was not Shri Dinesh Kumar Himatsingka but Shri Ajay Kumar Himatsingka. In this arraying of circumstances that, through their accumulation, would go towards building a preponderance of probability for the assessment being made in the hands of only Shri Ajay Kumar Himatsingka, it is also noteworthy that in the information available with the AO, which was assumed by him to be the bank account details of Shri Ajay Kumar Himatsingka and Shri Dinesh Kumar Himatsingka names of various associated persons have also been given. These names are Shri Ajay Kumar Himatsingka; his son, Shri Amitabh Himatsingka; Shri Ajay Kumar’s wife Smt Leeia Devi Himatsingka and one more being the name of Shri Dinesh Kumar Himatsingka - the biother of shri : Ajoy Kumar Himatsingka. It is noteworthy.that while the first three names belong to one farniiy’that of Shri Ajay Kumar Himatsingka, the only outsider - as far as this family is concerned - is Shri Dinesh Kumar Himatsingka. It is to remembered that the addition in the case of Shri Ajay Kumar Himatsingka was confirmed by arguing that an assessing authority should not keep blinkers on and should in fact take into his ambit of consideration the wide-spread tax-evasion practices widely known to be prevalent in society. The AO is assumed to be aware and conversant with such practices and the behaviour of tax-evaders. In the present circumstances also it is evident that it was the immediate family of only Shri Ajay Kumar Himatsingka IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 10 whose presence was noticeable in the information present in the hands of the AO, with the presence of an extra name - that of the present appellant - being the only outsider to that family. This circumstance, combined with the various other circumstances discussed above show that it was Shri Ajay Kumar Himatsingka who was effectively the actual controller of the two companies mentioned above and therefore, piercing through the corporate veils and other such devices created by Shri Ajay Kumar Himatsingka, the moneys would be taxed in the hands of only the latter and not in the hands of the present appellant ShriD inesh Kumar H imatsingka. In an y case, the procedure employed by the AO, of making the same addition substantively in the hands of both the assessees is incorrect in law. In view of the above discussions the addition made in this respect in the hands of the present appellant is deleted”. 7. The ld. Additional CIT (DR) relied upon the order of the ld. Assessing Officer. 8. On the other hand, ld. Counsel for the assessee raised two- fold submissions. In his first-fold of contention, he submitted that it is an assessment pursuant to the search operation and, therefore, as per the scope of Section 153A, addition could only be made on the basis of seized material. He pointed out that this aspect fallen for consideration in the case of assessee’s brother Shri Ajoy Kumar Himatsingka and Tribunal has deleted the addition by observing that no incriminating material was found during the course of search. Since it is an assessment year 2006- 07, it has already attained finality on account of non-issuance of a notice under section 143(2) for scrutinizing the return within limitation. Therefore, it cannot be opened again unless some IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 11 incriminating material found demonstrating the escapement of income. Whatever information ld. Assessing Officer has referred about HSBC Bank, it was already in the knowledge of the Department. 9. In his second-fold of contention, he submitted that apart from the above, the addition has been deleted by the ld. CIT(Appeals) on the ground that same amount cannot be added in the hands of two individuals on substantive basis. It could have been explored for protective addition but it is not sustainable on substantive basis. In this regard, he relied upon the order of the ld. CIT(Appeals). 10. We have duly considered the rival contentions and gone through the record carefully. As far as first-fold of contention of the ld. Counsel for the assessee is concerned, this aspect is squarely covered in favour of the assessee by the order of the ITAT dated 09.09.2022 passed in the appeal of his brother, i.e. IT(SS)A. No. 27/KOL/2022. The Tribunal has recorded the following finding:- “8. Per contra the Ld. D/R, vehemently argued by supporting the orders of the lower authorities and stated that the assessee failed to prove that the said two bank accounts did not belonging to the Appellant and that he was not the beneficial owner. It was submitted that the findings given by A.O. and confirmed by the CIT (A) are correct and legally valid and should be confirmed. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 12 9. We have heard rival contentions and perused the records placed before us as well as the case laws cited by Ld. Counsel for the assessee. First we take up Ground Nos. 1 to 3 challenging the legality of the assessment proceedings carried out subsequent to search u/s 132 of the Act. (i) It is an admitted fact that no incriminating documents or material were found in course of the search and no addition has been made in the assessment made pursuant thereto on such account. Only two additions have been made in the assessment under section 153A of the Act in respect of the said alleged bank account at the HSBC and the disallowance of Rs. 587 under Section 14A of the Act. It was submitted that the disallowance under section 14A of the Act is on the basis of a legal interpretation of the said section and is not as a result of any incriminating documents found in course of the search which would warrant such disallowance. (ii) Only other addition in the assessment is the sum of Rs. 4,73,20,709 being the bank balance of the said two companies. For Gingest Marketing Ltd it amounts to Rs. 4,52,40,074 and Masonic Limited amounts to Rs. 20,80,685. Admittedly the said addition has been made without reference to any incriminating material or documents found as a result of the search. The said documents relating to the alleged bank account at HSBC Switzerland were in the possession of the Department prior to the search and the appellant was confronted with them in the course of search proceedings. (iii) AO has alleged that during the Search & Seizure operations, assessee accepted the existence of a/c but stated it was in the name of M/s Masonic Ltd., in which his NRI son, Mr. Amitabh Himatsingka held 600 class-B non- voting equity shares. In the same statement, the Assessee had clarified and subsequently asserted, through filing of affidavits, that he was neither a director nor a shareholder in the said companies. (iv) As no incriminating material or documents whatsoever was found during the course of search under section 132 of the Act and since the time limit for issuing notice u/s 143(2) of the Act for A.Y. 2006-07 stood expired as on the date of search i.e., 22/09/2011, the said assessment falls under IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 13 the category of completed assessment and additions could be made in such completed assessments only if they are supported with any incriminating material found during the course of search. Therefore, the Assessing Officer has no jurisdiction whatsoever to frame assessment under section 153A/143(3) of the Act with reference to the issue for which no incriminating evidence or documents was found. It is by now well settled in law that in case of unabated assessments, only when any incriminating material or evidence is gathered in the course of search that the assessment can be framed u/s 153A of the Act in respect of income assessable with reference to such material. The assessment was completed under section 143(3) of the Act and no proceedings were pending when the search was conducted against the appellant. Assessment u/s 153A can be conducted only where any proceedings were pending at the time of search and got abated and/or any incriminating material or documents were found in the course of search. From the facts of the case it is clear that the assessment u/s 153A/143(3) was framed with reference to unverified and unsubstantiated information allegedly gathered by the Income Tax Department from some unnamed and unspecified authorities whose identity has never been disclosed to the appellant till date. No documents, details or papers even remotely connected with the alleged bank account were found from the appellant’s premises or were in the possession of the appellant. In absence of any incriminating details found in the course of search and the fact that the assessment for A.Y. 2006-07 had not abated, no addition or disallowance was permissible in the assessments framed u/s 153A of the Act. 10. This is now well settled by the judgments of various High Courts and Co-ordinate Benches of the Tribunal. It can also be seen from pages 16 to 26 of the order of the CIT(A) set out from the written submissions filed by the Appellant before him. In addition to the above, we may also refer to the following orders : (a) In the context of Section 153C of the Act which is para materia to Section 153A of the Act the Hon'ble Apex court in the case of CIT v. Sinhgad Technical Education Society 397 ITR 344 in the context of section 153C of the Act has held as under: "18) In this behalf, it was noted by the ITAT that as per the provisions of Section 153C of the Act, incriminating material which was seized had to pertain to the Assessment Years in question and it is an undisputed fact that the documents IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 14 which were seized did not establish any co-relation, document-wise, with these four Assessment Years. Since this requirement under Section 153C of the Act is essential for assessment under that provision, it becomes a jurisdictional fact. We find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act." b) Similar view was taken by the Hon'ble Calcutta High Court in the case of Veerprabhu Marketing Ltd, ITA No. 661/2008 dated 04108/2016. In this case the question of law was framed as follows: "1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is justified in not holding that all assessments were made under section 143(1) of the I. T. Act; therefore, disallowance as per law were not earlier made. As per Section 153(c) of the I. T. Act assessment is to be made afresh and Income to be assessed or reassessed. The meaning of reassessment is that there is no need to resort to Section 147 of the I. T. Act and to consider the disallowance in the assessment to be made under section 153 of the I.T. Act? 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is correct in misinterpreting the CBDT's Circular NO.7 as the same applies to assessments made u/s.143(3), 144 or 147 of the I. T. Act where appeals or rectification application will not abate? 2. Whether on the facts and in the· circumstances of the case, the Income Tax Appellate Tribunal is correct in law for the fact that the decision of Jharkhand High Court (2901TR 114) has not been properly interpreted as the same does not deal with a situation where assessment are made u/s. 143(1) of the I. T. Act and there is no proposition laid down that disallowance which required to be made if the return was selected for regular assessment u/s. 143(3) or u/s. 147 of the I. T,. Act could not be made u/s. 153A of the I. T. Act? While disposing appeal the Hon'ble High Court held: We are in agreement with the views expressed by the Karnataka High Court that incriminating material is a pre- IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 15 requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances. We find no infirmity in the aforesaid act of the learned Tribunal. The appeal is, therefore, dismissed. No Special Leave Petition was filed in the Supreme Court by the Revenue against the aforesaid decision of the Hon'ble Calcutta High Court. c) In the case of Pr. CIT vs. Salasar Stock Broking Ltd ITAT No. 264 of 2016, the Hon’ble Calcutta High Court took the same view and held: "Subject matter of challenge is a judgment and order dated 18th December, 2015 by which the learned Tribunal dismissed an appeal preferred by the Revenue registered as ITA No. 1775/Kol/2012 and allowed a cross-objection registered as CO-30/Kol/2013 both pertaining to the assessment year 2005- 06. The learned Tribunal was of the opinion that the Assessing Officer had no jurisdiction under section 153A of the Income Tax Act to reopen the concluded cases when the search and seizure did not disclose any incriminating material. In taking the aforesaid view, the learned Tribunal relied upon a judgment of Delhi High Court in the case of Kabul Chawla in ITA No. 78.7/2014 dated 28th August, 2014. The aggrieved Revenue has come up in appeal. Mr. Bagaria, learned Advocate appearing for the assessee, submitted that more or less an identical view was taken by this Bench in ITA 66112008, [CIT vs. Veerprabhu Marketing Ltd] wherein the following views were expressed "We are in· agreement with the views expressed by the Karnataka High Court that incriminating material is a pre- requisite before power could have been exercised under IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 16 section153C read with section 153A. In the case before us, the assessing. officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances" In that view of the matter, we are unable to admit the appeal. The appeal is, therefore, dismissed." d) In the case of PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA VERSUS M/S. RASHMI INFRASTRUCTURE PVT. LTD., 2020 (2) TMI 1463 the Hon'ble Calcutta High Court took the same view and held: ''The question is whether the assessee had unexplained cash credit in their books which could be charged to income tax in the previous year in question? We find on scrutiny of paragraphs 10 and 10.2 of the order of the tribunal that questions of fact and evidence were discussed and adjudicated upon by it. We set out paragraphs 10 and 10.2 of the impugned order of the tribunal is as follows: "10. Coming to the alleged cash 'trail, none of the material gathered by the Assessing Officer by way of bank account copies of various companies supposed to be part of the chain of companies was not confronted to the assessee. The alleged statements that were recorded from directors of these companies which formed this alleged chain were also not brought on record. Only a general statement has been made. There is no evidence whatsoever that cash has been routed from the assessee company to any of these chain of companies. There is no evidence that any cash was deposited by the assessee company. Moreover, there is no material whatsoever brought on record to demonstrate that the alleged cash deposit made in the bank account of a third party was from the assessee company. No opportunity to cross examine any these parties was provided to the assessee. The bank statements based on which the cash trail was prepared are part of the disclosed documents and cannot be held as incriminating IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 17 material. 10.2. Thus, none of these materials gathered by the Assessing Officer can be categorized as incriminating material found during the course of search or found during the course of any other operation under the Act. Thus, we hold that the additions in question are not based on any incriminating material. The Id. CIT(A) on page 38 of his order held as follows: " I have considered the findings of the AO in the assessment order, different case laws was brought on record and appeal orders passed by my predecessors on this legal issue. I find from the assessment order that during the search & seizure operations conducted u/s 132 of the IT Act, 1961, incriminating documents/papers were not seized. At least addition made by AO in the assessment order passed u/s 153A1143(3) are not based of any incriminating documents/papers seized during the search operation. It would also not to be out of context to mention here that in this case, on the date of search, no assessment for this year was pending. Therefore, keeping in view the ratio decided by the jurisdictional bench of Kolkata tribunal in case referred above and the ratio decided by the Hon'ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd. (Supra) in the light of CBDT's decision of not filing SLP in this 'case in the Supreme Court and keeping in view the Apex Court's decision to dismiss SLP on the similar issue in the case of Pr CIT vs Kurele Paper Mills Pvt. Ltd: SLP (C) No. 34554 of 2015 dt. 07.12.2015, I am of this view that in order to maintain judicial continuity on this issue and respectfully following the ratio decided by the Hon'ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (Supra), assessee's appeal on ground no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit. " The tribunal is the final fact finding authority. A plausible adjudication on facts has been made. We cannot reopen the facts any more in this jurisdiction. No questions of law far less any substantial question of law is involved. For those reasons, the appeal (ITAT NO.99 of 2019) and the connected application (GA No.1211 of 2019) are dismissed." IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 18 e) In the case of M/s Shree Sai Builders, 43, R.R. Archade, Zone-II, M.P. Nagar, Bhopal -vs- ACIT (Central)-II, Bhopal in I.T.(SS).A. No. 245 to 249/Ind/2017 & ITA No. 631/Ind/2017 for Assessment Years : 2008-09 to 2011-12 & 2013-14 to 2014-15 Income Tax Appellate Tribunal, Indore Bench, Indore by its order dated 30.05.2019 held as follows : 8. We have heard rival contentions and perused the records placed before us and gone through the decision referred and relied by the Ld. Counsel for the assessee. For Assessment Year 2008-09 assessee has raised two grounds of appeal. Ground No.1 challenges the addition on the ground that no incriminating material was found during the course of search and addition has been made merely on the basis of information called during the course of assessment proceedings. Through Ground No.2 the impugned addition of Rs.2,24,326/- is challenged with regard to disallowance of interest paid on loan holding that the loan funds were not utilized for the business purposes. 9. We find that the Co-ordinate Bench while adjudicating similar issue in the case of Sainath Coloniers V ACIT (2019) 35 ITJ 77 (Trib. Indore) following the judgment of Hon’ble High Court of Delhi in the case of CIT V/s Kabul Chawla (2016) 380 ITR 573 (Del) observed as follows: “We therefore in the given facts and circumstances of the case and respectfully following the judgments referred and relied by the Ld. Counsel for the assessee are of the considered view that no addition/disallowance was called for Assessment Year 2008-09 to 2010-11 as no incriminating material was found during the course of search at the premises of the assessee as the time limit of issuance of notice u/s 143(2) of the Act stood expired much before the date of conducting search u/s 132 of the Act”. 10. Examining facts of the instant appeal in the light of decision of Coordinate Bench, we find that the assessee filed regular return of income u/s 139 of the Act for Assessment Year on 30.09.2008. Assessee’s case was not selected for scrutiny, as notice u/s 143(2) of the Act was not issued to the assessee on or before 30.09.2009. Search was conducted on 29.1.2014. Impugned addition at Rs.2,24,326/- is purely based on information called during the IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 19 course of search proceedings. In this situation the assessment for Assessment Year 2008-09 is to be treated as non-abated assessments for which additions could be made only on the basis of incriminating material found during the course of search. Therefore, in the given facts and circumstances of the case and respectfully following the decision of the co-ordinate bench referred above, we direct the Ld. A.O to delete the disallowance of Rs.2,24,326/- and accordingly allow Ground No.1 and consequentially Ground No. 2 of the assessee’s appeal for 2008-09 raised in IT(SS)No.245/Ind/2017. f) In the case of Sreedeb Commodities Pvt. Ltd., 158, Lenin Sarani, Kolkata 700013 -vs- DCIT, Central Circle-2(1), Kolkata in I.T.(SS).A. Nos. 15/Kol/2022 for Assessment Year : 2007-08 Income Tax Appellate Tribunal “A” Bench, Kolkata by its order dated 26.07.2022 held as follows : “8. We have duly considered rival contentions and gone through the record carefully. Before adverting to the facts and alleged seized material considered by the ld.AO for making the addition in the hands of the present assessees, we deem it appropriate to bear in mind the position of law propounded in various authoritative judgments expounding scope of section 153A of the Act. We are of the view that in this regard, there were large numbers of decisions. First, we refer to the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon'ble Delhi High Court after detailed analysis has summarized the following legal position: 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 the 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 153 A(l) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 20 (ii) Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be 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 search takes place. The AO has the power to I.T(SS).A. No. 15/Kol/2022 Assessment Year: 2007-08 Sreedeb Commodities Pvt. Ltd. 5 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 153 A does not say that additions should be strictly made on the basis of evidence found in the course of 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 that the assessment "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 on the basis of seized material." v) In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. (vi) Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. (vii)Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 21 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." ITAT Delhi Bench in the case of DIT Vs. Smt. Shivali Mahajan and others, rendered in ITA No.5585/Del/2015 has considered this aspect in its decision. Thereafter, the Tribunal has specifically held that serial no.(iv) of the above proposition, the Hon'ble Delhi High Court has specifically held that assessment under section 153 A of the Act has to be specifically made on the basis of seized I.T(SS).A. No. 15/Kol/2022 Assessment Year: 2007-08 Sreedeb Commodities Pvt. Ltd. 6 material. ITAT Delhi Bench was considering an aspect whether the evidence in the shape of books of accounts, money, bullion, jewellery found during the course of search relates to other person than the searched person, can that be considered while making assessment under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench's order. It reads as under: “15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly, Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We, respectfully following the above decisions of Hon'ble Jurisdictional High Court, hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person." IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 22 Hon'ble Delhi High Court in the case of Subhag Khattar in Tax Appeal No.60 of 2017 has considered the following question of law: "Did the Income Tax Appellate Tribunal (ITAT) fall into error in holding that the additions made under Section 153A read with Section 143(3) of the Income Tax Act, 1961 in the circumstances of the case, were not justified and supportable in law?" After putting reliance upon its decision in the case of CIT Vs. Kabul Chawla (supra) has replied this question as under: "6. The Assessee went in appeal before the Commissioner of Income Tax (Appeals) who dismissed it by an order dated 27th November, 2014. A further appeal was filed by the Assessee before the IT AT. The IT AT, inter alia, found substance in the contention of the Assessee that the assessment under Section 153(A) of the Act, in I.T(SS).A. No. 15/Kol/2022 Assessment Year: 2007-08 Sreedeb Commodities Pvt. Ltd. 7 the absence of any incriminating material found during the search on the premises of the Assessee was not sustainable in law. Reliance was placed on the decision of this Court in Commissioner of Income Tax v. Kabul Chawla, [2016] 380ITR 573. 7. A question was posed to the learned counsel for the Revenue whether in the present case anything incriminating has been found when the premises of the Assessee was searched. The answer was in the negative. The entire case against the Assessee was based on what was found during the search of the premises of the AEZ Group. It is thus apparent on the face of it, that the notice to the Assessee under Section 153A of the Act was misconceived since the so- called incriminating material was not found during the search of the Assessee's premises. The Revenue could have proceeded against the Assessee on the basis of the documents discovered under any other provision of law, but IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 23 certainly, not wider Section 153A. This goes to the root of the matter." 9. Hon'ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153 A of the Act. 10. Hon'ble Gujarat High Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): "[A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A which is different from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incriminating material found during the course of search' which are not there in section 153A? [C] Whether the Tribunal erred in relying on the ITAT order in Sanjay Aggarwal v. DCIT (2014) 47 Taxmann.Com 210 (Del) which has interpreted undisclosed income unearthed during the search to imply incriminating material, as against the finding of the Delhi High Court in Filatex India Ltd. v. CIT- IV (2015) 229 Taxman 555 wherein it is held that during the assessment u/s 153A additions need not be restricted or limited to incriminating material found during the course of search?" IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 24 35. Hon'ble Court concurred with the decision of Hon'ble Delhi High Court. We deem it appropriate to take note of relevant part of the decision, which reads as under: "16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the legislature is clear viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 25 which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of statements recorded on oath of Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 26 backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, when the limit for framing the assessment as provided under section 153 was about to expire, the notice has been issued in the present case seeking to make the proposed addition of Rs.l 1,05,51,000/- on the basis of the material which was not found during the course of search, but on the basis of a statement of another person. In the opinion of this court, in a case like the present one, where an assessment has been framed earlier and no assessment or reassessment was pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 27 found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed." IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 28 11. It is also pertinent to note that, in the case of Kabul Chawla (supra), the Hon’ble Delhi High Court in its concluding paragraph has observed that, on the date of the search, the assessments for assessment years 2002-03, 2005-06 and 2006- 07 already stood completed and the returns in these years were accepted under Section 143(1) of the Act and these acceptance of returns processed under Section 143(1) of the Act was construed by the Hon’ble Delhi Court as completion of assessments and this acceptance of return, according to the Hon’ble Delhi High Court, could be tinkered with if some incriminating material was found at the premises of the assessee. Though, it is not necessary to recite and recapitulate this proposition in other judgments, suffice to say that in the following judgments, unanimous view is taken by Hon’ble High Court as well as ITAT on this point. They concur with the Hon’ble High Court. Just for reference, we note the citations as under:- Sl. No. Particulars 1. CIT vs. Kabul Chawla [2015] 61 taxmann.com 412 (Delhi) 2. PCIT –vs.- Kurele Paper Mills (P) Ltd. [2017] 81 taxmann.com 82 (Delhi) 3. PCIT –vs.- Rashmi Infrastructure Pvt. Ltd. ITAT 99 of 2019, GA No. 1211 of 2019 (Calcutta HC) 4. CIT –vs.- Veerprabhu Marketing Ltd. [2016] 73 taxmann.com 149 (Calcutta) 5. PCIT –vs.- Salasar Stock Broking Ltd. ITAT No. 264 of 2016, GA No. 1929 of 2016 (Calcutta HC) 6. M/s. Mani Square Ltd. –vs.- ACIT [IT(SS)A Nos. 58/KOL/2019 & others 7. ACIT –vs.- Majestic Commercial (P) Ltd. [2020] 116 taxmann.com 412 (Kolkata Trib.) 8. PCIT –vs.- Anand Kumar Jain & Others [ITA 23/2021 & others (Delhi High Court) IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 29 9. DCIT –vs.- Bhavya Merchandise (P) Ltd. [2020] 121 taxmann.com 112 (Kolkata Trib.) 10. Sarva Priya Holdings Pvt. Ltd. –vs.- DCIT [IT(SS)A Nos. 97 & 98/KOL/2014 11. Purulia Metal Casting –vs.- DCIT [ITA No. 1217/KOL/2019) 12. DCIT –vs.- Shri Ram Realcon Pvt. Ltd. [IT(SS)A No. 14 & 15/KOL/2017 13. Vikram Financial Services Ltd. –vs.- DCIT [IT(SS)A No. 81/KOL/2010 14. DCIT –vs.- M/s. Bohra G. & NN Brothers Pvt. Ltd. [IT(SS)A No. 89/KOL/2017 14. A perusal of the above finding would indicate that the Assessing Officer has nowhere made reference to any seized material in the assessment order. The Assessing Officer has been examining the matter as if he is passing a regular assessment order u/s 143(3) or 147 of the Act. Under the scheme of assessment as propounded in the various judgments of the Hon’ble High Courts referred above, an addition can only be made if some incriminating material regarding receipt of bogus share application money was found during the course of search. The Assessing Officer did not make reference to this effect. The ld. CIT(A) is on the same line. The ld. CIT(A) has discussed the issue on merits but did not address whether the issue can be examined in an assessment framed u/s 153A of the Act or not. The judgment of the Hon’ble Delhi High Court in the case of Kabul Chawla (supra) is very specific which has been discussed above. The time limit to issue notice u/s 143(2) of the Act has expired long back. Hence, it is an unabated assessment year and this assessment can be tinkered with only if incriminating material pertaining to this year has been found during the course of search. In view of the above discussion and respectfully following the judgments of various Hon’ble High Courts and Co-ordinate Benches, we allow the preliminary ground of the appeal and delete the additions made in the IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 30 assessment order dt. 30/03/2015 passed u/s 153A r.w.s. 143(3) of the Act”. 11. As far as the second-fold of contention is concerned, we are of the view that there cannot be double addition of the same amount unearthed from the same source. The ld. 1 st Appellate Authority has very elaborately discussed the nature of evidence possessed by the ld. Assessing Officer, vis-à-vis explanation of the assessee in the finding extracted supra. The ld. CIT(Appeals) has observed that firstly ld. Assessing Officer is not possessing concrete material exhibiting the fact that account was owned by the assessee. The ld. Assessing Officer failed to demonstrate the ownership of the assessee over the account. In this regard, he made reference to a letter transmitted by the Swiss Bank to the Income Tax Authorities. He also recorded a finding that his brother was having effective and actual control over these companies and addition on substantive basis cannot be made in the hands of the respondent. The Department failed to bring any evidence before us for rebutting this finding of fact. Therefore, we do not find any reason in interfering the finding of the ld. CIT(Appeals) on the second-fold also. 12. In view of the above, we do not find any merit in the appeal of the Revenue. 13. As far as Cross Objection is concerned, the assessee has taken four grounds of appeal along with sub-ground. As far as IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 31 first three grounds are concerned, these are in support of the ld. CIT(Appeals)’s finding. It is pertinent to note that sub-section (4) of section 253 of the Income Tax Act authorizes the respondent to file Cross Objection qua any part of the impugned order, which is against the respondent. In these grounds, assessee failed to demonstrate as to how the impugned order is against it specifically. There is only one aspect, which is to be looked into that the addition is beyond the scope of section 153A and, therefore, not sustainable. Since we have already dismissed the appeal of the Revenue, therefore, no specific finding is required on Grounds No 1 to 3 of the Cross Objection, they are rejected. 14. As far as Ground No. 4 is concerned, assessee has challenged the addition of Rs.2,864/-, which was added with the aid of section 14A of the Income Tax Act, 1961 and read with Rule 8D of the Income Tax Rules, 1962. It is pertinent to observe that Rule 8D was made applicable from A.Y. 2008-09. It was not available on the Statute Book for A.Y. 2006-07. With the help of this Rule, addition cannot be made. Accordingly this addition is also not sustainable, it is deleted. 15. In the result, appeal of the Revenue is dismissed and Cross Objection of the assessee is partly allowed. Order pronounced in the open Court on 16 th March, 2023. Sd/- Sd/- (Girish Agrawal) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 16 th day of March, 2023 IT(SS)A No. 110/KOL/2022 Assessment Year: 2006-2007 & C.O. No. 21/KOL/2022 [in IT(SS)A No. 110/KOL/2022] Dinesh Kumar Himatsingka 32 Copies to :(1) Deputy Commissioner of Income Tax, Central Circle-3(4), Kolkata, Aayakar Bhawan Poorva, 5 th Floor, Room NO. 516, 110, Shanti Pally, Kolkata-700107 (2) Shri Dinesh Kumar Himatsingka, 173, RMV Extension, 8 th B Main Road, Sadashivnagar, Karnataka, Bangalore-560080 (3) Commissioner of Income Tax (Appeals)-21, Kolkata; (4) Commissioner of Income Tax- , Kolkata; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.