M/s. Sumilon Plastic Pvt.Ltd., Surat V. The ACIT.,Cent.Circle-4, Surat

ITSSA 118/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2456 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 16-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Keywords: Capital asset; Question of law; Reassessment proceedings
• Section: 143(3); 153A; 147; 68; 148; 263; 132; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ASSESSEE(S) BY : SHRI TUSHAR P. HEMANI, AR REVENUE BY : SHRI R.I. PATEL, CIT-DR / DATE OF HEARING : 26/10/2016 / DATE OF PRONOUNCEMENT: 09/11/2016 SN IT(SS)A NO. AY APPELLANT RESPONDENT 1 115/AHD/2012 2003-04 SMT. BHAGWATIBEN JARIWALA, PROP. M/S. SHREE VINAYAK METALIC, 83, VASUDHARA IND. CO. OP. SOCIETY, A.K. ROAD, SURAT PAN : AAQPJ 7178 L ACIT, CENTRAL CIRCLE-4, SURAT 2 116/AHD/2012 2003-04 SHRI MAHESH JARIWALA, L/H OF LATE SHRI SUMANLAL JARIWALA HUF, PROP M/S. SHREE GANESH TEXTILES, 6/121, VAIRAGINI WADI, DELHI GATE, SURAT PAN : AAEHS 3921 E ACIT, CENTRAL CIRCLE-4, SURAT 3 117/AHD/2012 2003-04 SHRI MAHESH JARIWALA, L/H OF LATE SHRI SUMANLAL JARIWALA HUF, PROP M/S. GAJANAN INDUSTRIES, 83, VASUDHARA IND. CO. OP. SOCIETY, AK ROAD, SURAT PAN : ABWPJ 1844 N ACIT, CENTRAL CIRCLE-4, SURAT 4 118/AHD/2012 2005-06 SUMILON PLASTIC PVT LTD, 6/121, VAIRAGINI WADI, DELHI GATE, SURAT PAN : AADCS 3959 E ACIT, CENTRAL CIRCLE-4, SURAT 5 119/AHD/2012 2005-06 SUMILON TEX PVT LTD 6/121, VAIRAGINI WADI, DELHI GATE, SURAT PAN : AADCS 3566 M ACIT, CENTRAL CIRCLE-4, SURAT 6 120/AHD/2012 2003-04 SHRI MAHESH JARIWALA, PROP M/S. MAHESH CORPN 97, ADARSH SOCIETY, ATHWALINES, SURAT PAN : ABWPJ 1843 M ACIT, CENTRAL CIRCLE-4, SURAT IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 2 / O R D E R PER N.K. BILLAIYA, ACCOUNTANT MEMBER: IT(SS)A NOS. 115 TO 120/AHD/2012 ARE APPEALS BY DIF FERENT ASSESSEES BELONGING TO THE SAME GROUP PREFERRED AGAINST SEPAR ATE ORDERS OF THE CIT(A)-II, AHMEDABAD PERTAINING TO ASSESSMENT YEARS 2003-04 AND 2005-06. THIS BUNCH OF APPEALS WAS HEARD TOGETHER SINCE COMM ON ISSUES ARE INVOLVED AND ARE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE APPEALS, THE ASSESSEE(S) HAS RAISED AN ADDITIONAL GROUND IN ADDITION TO THE GROUNDS TAKEN IN THE MEMORANDUM OF APPEALS. WITH THE ADDITIONAL GROUND, THE ASSESSEE(S) HAS CHALLENGED T HE VALIDITY OF THE ASSESSMENT ORDERS FRAMED U/S 153A R.W.S. 143(3) OF THE ACT ON THE ALLEGED GROUND THAT THE ASSESSMENTS HAVE BEEN MADE WITHOUT THERE BEING ANY INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. THEREFORE, THE IMPUGNED ASSESSMENTS ARE BAD IN LAW. 3. THE LD. DR STRONGLY OBJECTED TO THE ADMISSION OF THE ADDITIONAL GROUND STATING THAT THE ISSUES RAISED THROUGH THE A DDITIONAL GROUND WERE NOT TAKEN BEFORE THE LOWER AUTHORITIES; THEREFORE, THE SAME SHOULD NOT BE ADMITTED. 4. THE HONBLE SUPREME COURT IN THE CASE OF NATIONA L THERMAL POWER CO. LTD. VS CIT, REPORTED IN (1998) 229 ITR 383 (SC ), HAS HELD THAT THE TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH AROSE FROM THE FACTS AS FOUND BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX LIABILITY OF THE ASSESSEE . 5. WE HAVE CAREFULLY PERUSED THE IMPUGNED ASSESSMEN T ORDERS. WE FIND THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE(S ) DOES NOT REQUIRE ANY IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 3 VERIFICATION OF FACTS. THE UNDISPUTED FACTS ARE AL READY THERE IN THE IMPUGNED ASSESSMENT ORDERS AND ALSO IN THE ORDERS O F THE FIRST APPELLATE AUTHORITY. IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT (SUPRA), THE ADDITIONAL GROUND IS ADMITTED. 6. HAVING HEARD THE RIVAL CONTENTIONS, WE HAVE CARE FULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT A SE ARCH ACTION WAS CARRIED OUT IN JERI & TEXTILE GROUP ON 20.01.2009, CONSEQUENT T O WHICH THE AO HAS FRAMED THE IMPUGNED ASSESSMENT ORDERS U/S 143(3) R. W.S. 153A OF THE ACT. 7. THE ASSESSMENT OF SMT. BHAGWATIBEN JARIWALA (IT( SS)A NO. 115/AHD/2012) HAS BEEN COMPLETED AFTER MAKING ADDIT ION OF RS.10 LAKHS U/S 68 OF THE ACT. THE ASSESSMENT OF SHRI MAHESH J ARIWALA (IT(SS)A NO. 116/AHD/2012) WAS COMPLETED BY MAKING ADDITION OF R S.11 LAKHS U/S 68 OF THE ACT. AN ADDITION OF RS.5 LAKHS WAS MADE U/S 68 OF THE ACT IN IT(SS)A NO. 117/AHD/2012. IN IT(SS)A NO.118/AHD/2012 AND IT (SS)A NO. 119/AHD/2012, ADDITION OF RS.12.83 LAKHS AND RS.10. 50 LAKHS RESPECTIVELY WERE MADE ON ACCOUNT OF EXCESS CLAIM OF WASTAGE AND IN IT(SS)A NO.120/AHD/2012, ADDITION OF RS.10 LAKHS WAS MADE U /S 68 OF THE ACT. 8. WE FIND THAT NO INCRIMINATING MATERIAL WAS FOUND FOR MAKING THE IMPUGNED ADDITIONS. WE ALSO FIND THAT THERE IS NO REFERENCE TO ANY SEIZED MATERIAL WHICH CAN BE TERMED AS INCRIMINATING AND F OUND AS A RESULT OF SEARCH FOR MAKING THE SAID ADDITIONS. 9. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD, REPORTE D IN (2015) 374 ITR 645 (BOM HC), HAS HELD THAT IF NO INCRIMINATING MATERIAL IS FOUND, THEN THE CONCLUDED ASSESSMENT COULD NOT BE REOPENED. . THE RELEVANT FINDING OF THE HONBLE HIGH COURT READS AS UNDER:- IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 4 'ONCE IT IS HELD THAT THE ASSESSMENT HAS ATTAINED F INALITY, THEN THE AO WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER U/S. 153A R.W. S 143(3) OF THE IT. ACT COULD NOT HAVE DISTURBED THE ASSESSMENT/REASSES SMENT ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS U/S. 153A OF THE INCOME TAX ACT ESTABLI SH THAT THE RELIEFS GRANTED UNDER THE FINALIZED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153A PROCEEDIN GS. IF THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHED D URING THE SEARCH OR DURING THE 153A PROCEEDINGS, THE AO WHILE PASSING O RDER U/S. 153A R.W.S. 143(3) CANNOT DISTURB THE ASSESSMENT ORDER.' 9.1. THE HON'BLE HIGH COURT HAD AN OCCASION TO CONS IDER THE FOLLOWING QUESTIONS OF LAW: '1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE HON'BLE ITAT IS CORRECT IN NARROWING DOWN THE SCOPE OF ASSE SSMENT U/S. 153A IN RESPECT OF COMPLETED ASSESSMENTS BY HOLDING THAT ON LY UNDISCLOSED INCOME AND UNDISCLOSED ASSETS DETECTED DURING SEARCH COULD BE BROUGHT TO TAX? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE HON'BLE ITAT IS CORRECT IN LAW IN HOLDING THAT THE SCOPE OF SEC. 153A IS LIMITED TO ASSESSING ONLY SEARCH RELATED INCOME, THEREBY DENYI NG REVENUE THE OPPORTUNITY OF TAXING OTHER ESCAPED INCOME, THAT CO MES TO THE NOTICE OF THE AO.? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE HON'BLE ITAT WAS RIGHT IN LIMITING THE SCOPE OF SEC. 153A O NLY TO UNDISCLOSED INCOME WHEN AS PER THE SECTION THE AO HAS TO ASSESS THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS?'- AND THE HON'BLE HIGH COURT OF BOMBAY FINALLY HELD A S UNDER:- 'WE, THEREFORE, DISMISS THE REVENUE'S APPEAL AND AN SWER THE SUBSTANTIAL QUESTION OF LAW AGAINST THE REVENUE AND IN FAVOUR O F ASSESSEE.' 9.2 NOW, THE OTHER ISSUE WHICH HAS TO BE DECIDED I S WHETHER THE TIME LIMIT OF ISSUE OF NOTICE U/S. 143(2) IF FOUND EXPIR ED CAN BE CONSTRUED AS COMPLETED ASSESSMENT. TO THIS QUESTION, THE ANSWER IS GIVEN BY THE CO- ORDINATE BENCH OF THE TRIBUNAL DELHI IN THE CASE OF PACL INDIA LTD. IN ITA NO. 2637/DEL/2010 AND THE SAME READS AS UNDER:- IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 5 7. AFTER HEARING BOTH THE SIDES ON THE ISSUE AND TAKING INTO CONSIDERATION, RECORDS AVAILABLE THE FOLLOWING FACTS EMERGES AS UN DISPUTED. THE REGULAR RETURN OF INCOME WAS FILED ON 2.12.2003 AND THE SAM E WAS PROCESSED U/S 143(1)(A) OF THE ACT. THE TIME PERIOD FOR ISSUING N OTICE U/S 143(2) OF THE IT ACT FOR SELECTING CASE FOR SECURITY EXPIRED ON 31.1 2.2004. THE FIRST SEARCH WAS CONDUCTED ON THE PREMISES OF ASSESSEE ON 22.9.2005 AND THE 2ND SEARCH WAS CONDUCTED ON 25.8.2006 AND IN BOTH THE SEARCHES, NO INCRIMINATING MATERIAL, DOCUMENT, UNACCOUNTED ASSETS AND BOGUS OF ACCOUNTS WERE FOUND AND SEIZED RELATING TO LAND DEVELOPMENT EXPENSES DEBITED IN PR OFIT AND LOSS ACCOUNT FOR THE YEAR. THE BOTH SEARCHES ON ASSESSEE DID NOT YIE LD ANY INCRIMINATING MATERIAL ON THE BASIS OF WHICH IT CAN BE SAID THAT ASSESSEE WAS INDULGENT IN DEBITING BOGUS LAND DEVELOPMENT EXPENSES IN ITS BOO KS OF ACCOUNT. THERE IS NO REFERENCE OF ANY MATERIAL FOUND IN THE SEARCH FO R MAKING ASSESSMENT U/S 153A OF THE ACT. THUS THE BASIC CONTROVERSY BEFORE US REMAINS ABOUT THE SCOPE OF ASSESSMENT U/S 153(A) WHEN THE RETURN HAS BEEN ACCEPTED U/S 143(1)(A) AND TIME PERIOD FOR ISSUING NOTICE U/S 14 3(2) HAS ELAPSED. 8. IN OUR CONSIDERED VIEW, THERE IS NO DISPUTE WITH REGARD TO THE PROPOSITION THAT A.O HAS THE JURISDICTION U/S 153A OF THE ACT T O INITIATE ASSESSMENT/ REASSESSMENT PROCEEDINGS FOR ALL THE SIX YEARS TO C OMPUTE THE TOTAL INCOME OF THE ASSESSEE INCLUDING THE UNDISCLOSED INCOME WHERE ACTION HAVE BEEN TAKEN AGAINST THE ASSESSEE U/S 132(1) OF THE IT ACT. HOWE VER, THE QUESTION REMAINS THAT WHEN RETURN HAS BEEN PROCESSED U/S 143(1)(A) A ND THE TIME PERIOD FOR ISSUING NOTICE U/S 143(2) FOR SELECTING RETURN FOR SCRUTINY HAS ELAPSED THEN WHAT NATURE OF PROCEEDINGS COMMENCED AND CONCLUDED U/S 143(1)(A). HOW THESE ARE DIFFERENT FROM THE PROCEEDINGS COMMENCED AND CONCLUDED U/S 143(3) OF THE ACT. THERE IS NO DOUBT THAT ONCE THE PROCEEDINGS U/S 143(3) ARE COMPLETED AND CONCLUDED THEN THERE IS NOTHING WHICH WILL ABATE AS PER PROVISIONS OF SECTION 153AOF THE ACT. 9. IN OUR CONSIDERED OPINION, SECTION 153A REFERRED TO 'PENDING' 'ASSESSMENT' OR 'REASSESSMENT' AND NOT 'ASSESSMENT ORDERS'. THE ASSESSMENT MAY NOT BE PENDING EVEN THOUGH THERE IS NO FORMAL ORDER U/S I43(1)(A). THE MOMENT RETURN IS FILED AND ACKNOWLED GEMENT OR INTIMATION ISSUED, THE PROCEEDINGS INITIATED BY FILING THE RET URN ARE CLOSED, UNLESS THEY ARE AGAIN TRIGGERED BY ISSUING NOTICE U/S 143(2) OF THE IT ACT. IN THE CASE UNDER CONSIDERATION, THE PERIOD FOR ISSUING THE NOT ICE U/S 143(2) ELAPSED. THE PROCESS HAS ATTAINED THE FINALITY WHICH CAN ONLY BE ASSAILED U/S 148 OR 263 OF THE IT ACT. SUCH PROCEEDINGS CAN NEVER BE INITIATED U/S 143(2) WHEN THE TIME PERIOD FOR ISSUING NOTICE U/S 143(2) HAS EXPIRED. H ON'BLE ITAT, MUMBAI C BENCH IN THE CASE OF ACIT VS. PRATIBHA INDUSTRIALIS T LTD. REPORTED IN 23 ITR TRIBUNAL 766 MUMBAI HAS ALSO HELD AS UNDER :- IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 6 'ALTHOUGH BY PROCEEDINGS INITIATED UNDER SECTION 15 3A ALL SIX YEARS SHALL BECOME SUBJECT MATTER OF ASSESSMENT UNDER SEC TION 153A THE ASSESSING OFFICER SHALL HAVE A FREE-HAND, THROUGH A BATEMENT, ONLY ON THE PROCEEDINGS THAT ARE PENDING, TO FRAME THE ASSE SSMENTS AFRESH. BUT IN A CASE WHERE THE PROCEEDINGS HAVE REACHED FINAL ITY, ASSESSMENT UNDER SECTION 153AREAD WITH SECTION 143(3) AND CERT AIN INCRIMINATING DOCUMENTS HAVE BEEN FOUND INDICATING UNDISCLOSED INCOME, THE ADDITION SHALL ONLY BE RESTRICTED TO TH OSE DOCUMENTS OR INCRIMINATING MATERIAL, AND CLUBBED ONLY TO THE ASS ESSMENT FRAMED ORIGINALLY, AS THE LAW DOES NOT PERMIT THE ASSESSIN G OFFICER TO DISTURB ISSUES ALREADY CONCLUDED. WHERE ON THE DATE OF INIT IATION OF SEARCH UNDER SECTION 132 OR REQUISITION OF BOOKS, NO PROCE EDING IS PENDING, BUT IN THE SEARCH, MATERIAL IS FOUND INDICATING INC RIMINATING MATERIAL, THE ASSESSING OFFICER EMBARKS ON A JURISDICTION, WH EREIN HE HAS TO CLUB THE TWO SAFE OF INCOMES, THE RETURNED INCOME A ND THE UNEARTHED INCOME AND ARRIVE AT THE TOTAL INCOME. 9.3 IN THE CASE OF KABUL CHAWLA, 380 ITR 573, THE H ON'BLE HIGH COURT HAS SUMMARIZED THE LEGAL POSITION 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 T HE 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 IMMEDIATE LY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES P LACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INC OME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RE SPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSE D INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH, OR OTHER POST- IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 7 SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A O WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSES SMENT '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 CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T 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 REASSES S' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE 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 RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE 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 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. 9.4 THE AFOREMENTIONED RATIO LAID DOWN BY THE HON' BLE HIGH COURT OF DELHI HAS BEEN FOLLOWED BY THE HON'BLE HIGH COURT O F DELHI IN THE CASE OF LATA JAIN IN INCOME TAX APPEAL NO. 274 & 276 OF 201 6 WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER:- 5. THE SHORT POINT INVOLVED IS WHETHER THE ITAT WA S CORRECT IN CONCLUDING THAT THERE HAD TO BE INCRIMINATING MATERIAL RECOVER ED DURING THE SEARCH QUA THE ASSESSEE IN EACH OF THE YEARS FOR THE PURPOSES OF FRAMING AN ASSESSMENT UNDER SECTION 153 A OF THE ACT? 6. IT IS NOT IN DISPUTE THAT IN RESPECT OF THE RESP ONDENT ASSESSEE FOR THE AYS IN QUESTION THE INITIAL ASSESSMENT PROCEEDINGS TOOK PLACE UNDER SECTION 143(3) OF THE ACT. THEREAFTER THEY WERE SOUGHT TO B E REOPENED BY ISSUING NOTICE UNDER SECTION 147 OF THE ACT AND RE-ASSESSME NT ORDERS WERE PASSED UNDER SECTION 147 READ WITH SECTION 143(3) OF THE A CT. DURING BOTH THE AFOREMENTIONED PROCEEDINGS THE QUESTION WHETHER THE GOLD AND SILVER UTENSILS IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 8 WERE THE CAPITAL ASSETS OR PERSONAL EFFECTS OF THE ASSESSEE WAS EXAMINED. THEY WERE HELD NOT TO BE THE PERSONAL EFFECTS. 7. IT HAS BEEN NOTICED BY THE ITAT IN THE IMPUGNED ORDER THAT FOR THE A.YS IN QUESTION NO INCRIMINATING MATERIAL QUA THE ASSESSEE WAS FOUND. 8. IN THAT VIEW OF THE MATTER, AND IN LIGHT OF THE DECISION OF THIS COURT IN CIT VS. KABUL CHAWLA(2016) 380 ITR 573 (DELHI), THE COU RT IS OF THE VIEW THAT THE IMPUGNED ORDER OF THE ITAT SUFFERS FROM NO LEGA L INFIRMITY AND NO SUBSTANTIAL QUESTION OF LAW ARISES FOR DETERMINATIO N. 10. A PERUSAL OF THE AFORE STATED RATIOS LAID DOWN BY THE HONBLE HIGH COURTS CLEARLY SHOW THAT COMPLETED ASSESSMENTS CAN BE INTERFERED BY AO WHILE FRAMING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE SEARCH. THE IMPUGNED ASSESSMENTS ARE DEVOID OF SUCH INCRIMINATING MATERIAL. THEREFORE, THE ASSESSMENTS FRAMED U/S 153A R.W.S. 143(3) OF THE ACT IS BAD IN LAW AND AGAINST THE SETTLED RATIO AS MENTIONED ELSEWHERE. 11. IN IT(SS)A NO. 118 & 119/AHD/2012, THE IMPUGNED ADDITIONS HAVE BEEN MADE ON THE BASIS OF A STOCK REGISTER FOUND DU RING THE COURSE OF SEARCH. IT IS THE SAY OF THE DR THAT AT LEAST IN THESE TWO CASES THERE WAS SOME INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. WE DO NOT FIND ANY FORCE IN THIS CONTENTION OF THE DR. THE SAID REGISTER CO NTAINS DETAILS OF ACTUAL SHORTAGE/WASTAGE IN MANUFACTURING JARI AND KASAB AN D THE SAID REGISTER BELONGS TO ONE M/S. GANESH EXPORTS. THE SAID REGIS TER WAS WASTAGE REGISTER OF M/S. GANESH EXPORTS. IT WAS PART OF THE REGULAR BOOKS OF ACCOUNTS. THEREFORE, BY ANY STRETCH OF IMAGINATION, IT CANNOT BE CONSIDERED AS AN INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. 12. CONSIDERING THE TOTALITY OF THE FACTS IN THE LI GHT OF THE RATIOS LAID DOWN BY THE HONBLE HIGH COURTS (SUPRA), THIS BUNCH OF A PPEALS IS ALLOWED. THE IT(SS)A NOS. 115 TO 120/AHD/2012 ASSESSEE :BHAGWATIBEN JARIWALA & OTHERS AY 2003-04 & 2005-06 9 ADDITIONAL GROUND RAISED BY THE ASSESSEE(S) BY WHIC H THE ORDERS WERE CHALLENGED IS ALLOWED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 13. SINCE WE HAVE DECIDED THE ISSUE ON THE POINT OF LAW IN FAVOUR OF THE ASSESSEE BY QUASHING THE IMPUGNED ASSESSMENT ORDERS , WE DO NOT FIND IT NECESSARY TO DELVE INTO THE MERITS OF THE CASE. 14. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE(S) ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 9 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (MAHAVIR PRASAD) JUDICIAL MEMBER (N.K. BILLAIYA) ACCOUNTANT MEMBER AHMEDABAD; DATED 09/11/2016 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A ) 5. $ '' , , / D R, ITAT, AHMEDABAD 6. - / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD