ACIT, C.C.1, Ranchi V. M/S Devkabai Velji, West Singhbhum

ITSSA 134/RAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1636 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 30-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJI T SINGH
• Keywords: Bogus purchase; Unexplained investment; Search and seizure; Principle of natural justice; Period of limitation; Question of law; Accommodation entries; Block assessment; Reason to believe; Documents seized; Reassessment proceedings; TDS; Set aside
• Section: 143(3); 153A; 192; 246A; 64; 158BC; 43; 13; 153; 158BD; 22; 153C; 147; 69; 148; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH E COURT AT KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER IT (SS) A NO. 134 / RAN / 2019 ASSESSMENT YEAR :2012-13 ACIT, CENTRAL CRICLE-1, 7 TH FLOOR, MAHABIR TOWER, MAIN ROAD, RANCHI-834001 V/S . M/S DEVKABAI VELJI, BARAJAMDA, SINGHBHUM (WEST) JHARKHAND-833221 [ PAN NO. AACFD 2730 L ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI INDERJIT SINGH CIT-DR /BY RESPONDENT SHRI DEVESH PODDAR, ADVOCATE /DATE OF HEARING 24-11-2020 /DATE OF PRONOUNCEMENT 09-12-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-3 PATNAS ORDE R DATED 26.08.2019 PASSED IN CASE NO.315/CIT(A)-3/PAT/2018-19 INVOLVIN G PROCEEDINGS U/S 153A R.W.S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE REVENUES SOLE SUBSTANTIVE GRIEVANCE RAISED IN THE INSTANT LIS READS AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,80,72,461/- ON ACCOUNT OF BOGUS RAISING EXPENSES BY TOTALLY DISREGARDING THE FACTS THAT THE INFORMATION WAS RECEIVED FROM THE DGIT (INV.), KOLKATA REGARDING ACCOMMODATI ON ENTRY OF BOGUS IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 2 EXPENSES OF RS.1,80,72,461/- AS IN THE STATEMENT GI VEN BY DIRECTOR OF M/S ARVINDA INFRASTRUCTURE PVT. LTD. BEFORE THE INVESTI GATION WING DURING THE COURSE OF SEARCH, IT WAS ADMITTED BY HIM THAT BOGUS ACCOMMODATION ENTRY WAS PROVIDED TO THE ASSESSEE AND THAT THE SAID COMP ANY HAD NO PURCHASED ANY MACHINERY RELATED WITH MINING ACTIVITIES SINCE ITS INCORPORATION WHICH ESTABLISHED THAT THE COMPANY DID NOT HAVE ANY EXPER TISE FOR MINING WORK. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) HAS TOTALLY IGNORED THE FACT THAT PRIMARY ONUS LIES UPO N THE ASSESSEE TO PROVE THE GENUINENESS OF THE EXPENSES BEFORE THE A.O. WHICH T HE ASSESSEE FAILED TO DISCHARGE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A) HAS ERRED IN RELYING ON THE CIRCUMSTANTIAL EVIDENCES LI KE DEDUCTION OF TDS, PAYMENTS THROUGH BANKING CHANNELS AND RAISING OF BI LLS WITHOUT GOING INTO THE CRUX OF THE ISSUE I.E. WHETHER ANY ACTUAL SERVICES WERE RENDERED BY THE ALLEGED PARTY TO THE ASSESSEE OR NOT. 3. WE ADVERT TO THE BASIC RELEVANT FACTS. THIS ASSE SSEE IS A FIRM ENGAGED IN MINING OF IRON AND MANGANESE BUSINESS. THE DEPAR TMENT CARRIED OUT THE IMPUGNED SEARCH ON 20.11.2015 WHICH CULMINATED IN I NITIATION OF SEC. 153A PROCEEDINGS VIDE NOTICE DATED 26.02.2016. THE ASSES SEE FILED RETURN DATED 07.09.2016 IN PURSUANCE THERETO DISCLOSING TOTAL IN COME OF 5,50,11,040/-. THIS FOLLOWED THE ASSESSING OFFICERS REGULAR ASSES SMENT DATED 28.12.2017 DISALLOWING / ADDING ASSESSEES BOGUS EXPENSES OF 1,80,72,461/- AS MERE BOGUS ACCOMMODATION ENTRIES GOING BY THE STATEMENT OF ONE M/S ARVINDA INFRASTRUCTURE PVT. LTD.S DIRECTOR SHRI AJIT KUMAR JINDAL. 4. THE ASSESSEE PREFERRED ITS LOWER APPEAL. IT INTER ALIA CHALLENGED THE LEGALITY OF SEC. 153A PROCEEDING / ASSESSMENT(S) AS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE C OURSE OF SEARCH AND ALSO SOUGHT TO DELETE THE DISALLOWANCE OF ALLEGED BOGUS EXPENSES ON MERITS. THE CIT(A)S ORDER UNDER CHALLENGED HAS UPHELD VALIDITY OF THE IMPUGNED ASSESSMENT AS FOLLOWS:- 3.2 . APPELLATE FINDING AND DECISION:- I, HAVE CAREFULLY CONSIDERED THE FINDING OF THE LD. AO AND THE SUBMISSION OF THE APPELLANT. ON A CAREFUL CONSIDERATION, I AM OF THE VIEW THAT BEFORE DECIDING THE ISSUE IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 3 ON MERITS IT WOULD BE OF VITAL IMPORTANCE TO DECIDE THE ISSUE GOVERNING THE LAW ON SEARCH ASSESSMENTS. ACCORDING TO LAW THE MAIN CONTE NTION OF THE APPELLANT IS THAT AS NO INCRIMINATING MATERIAL WAS SEIZED DURING THE COU RSE OF SEARCH THE ADDITION MADE BY THE AO IS BAD IN LAW. ACCORDINGLY, THE APPELLANT RELYING ON LEADING DECISIONS IN THE CASE OF CIT V. CONTINENTAL WAREHOUSING CORPORATION LTD. 374 ITR 645 AND CIT V. 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 HON'BLE HIGH CO URTS AND VARIOUS TRIBUNALS HELD THAT NO SUCH 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 HON'BLE BOMBAY HIGH COUR T IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD [2015] 58 TAXMANN.COM 78 BY WAY OF SLP AND THE HON'BLE 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. 3.2.2 HOWEVER, CONTRARY TO THE DECISIONS QUOTED BY THE A PPELLANT, IN FOLLOWING 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 A LL THE ASSESSMENT YEARS FALLING WITHIN THE BLOCK PERIOD AND THEREAFTER CAN ASSESS O R REASSESS THE TOTAL INCOME OF THE ASSESSEE NOT ONLY BASED ON THE MATERIAL GATHERED DU RING THE SEARCH BUT ALSO ANY OTHER MATERIAL AVAILABLE WITH THE AO AT THE TIME OF PASSING THE ASSESSMENT ORDER. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. ANIL KUMAR BHATIA REPORTED IN [2013] 352 ITR 493 HAS LUCIDLY EXPLAINED THE MEANIN G, SCOPE AND LEGISLATIVE INTENTION IN INTRODUCING SECTIONS 153A, 1538 AND 153C. AS STA TED AND EXPLAINED BY THE HON'BLE COURT, SECTION 153A PROVIDES FOR ' ASSESSMENT IN CASE OF SEARCH OR REQUISITION '. IT RUNS AS FOLLOWS: ' 153A . [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTI ON 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 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PART ICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL. SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS. PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF 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 INITIATION OF THE SEARCH U NDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 4 [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED III AP PEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINE D IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATIN G TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO S UB-SECTION (1), SHALL STAND REVISED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER. PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF S UCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION.- FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT- (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTIO N 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 O F AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABL E AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR.' 17 . THE THREE SECTIONS INTRODUCED W.E.F. 1.6.2003 REPL ACED THE POST SEARCH BLOCK ASSESSMENT SCHEME ' IN RESPECT OF ANY SEARCH UNDER SECTION 132 OR REQ UISITION UNDER SECTION 132A MADE AFTER 31.5.2003. IN CIRCULA R NO.7 OF 2003 DATED 5.9.2003 REPORTED IN (2003) 263 ITR (ST) 62, THE NEW SCHEME WAS EXPLAINED BY THE CBDT IN THE FOLLOWING MANNER: ' 65 . THE SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CA SES UNDER CHAPTER XIV - B BE ABOLISHED: 65.1 THE EXISTING PROVISIONS OF THE CHAPTER XIV-B PROVI DE 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 AND ALSO INCLUDES THE PERIOD UP TO THE DATE OF THE COMMENCEMENT OF SUCH S EARCH, AND LAY DOWN THE MANNER IN WHICH SUCH INCOME IS TO BE COMPUTED. 65.2 THE FINANCE ACT, 2003, HAS PROVIDED THAT THE PROVI SIONS OF THIS CHAPTER SHALL NOT APPLY WHERE A SEARCH IS INITIATED UNDER S ECTION 132, OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARC REQUISIT IONED UNDER SECTION 132A AFTER MAY 31,2003, BY INSERTING A NEW SECTION 158BI IN THE INCOME-TAX ACT. 65.3 FURTHER THREE NEW SECTIONS 153A, 153B AND 153C HAV E 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 FOR CO MPLETION OF ASSESSMENT WHERE A SEARCH IS INITIATED UNDER SECTIO N 132 OR BOOKS OF ACCOUNT, OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUI SITIONED UNDER SECTION 132A AFTER MAY 31, 2003. IN SUCH CASES, THE ASSESSI NG OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH, WIT HIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, RETURN OF INCOME IN RESPEC T OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUISITION WAS MADE UNDER SECTION 132A. IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 5 65.5 THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSESSMENT OR REASSE SSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FAILING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UND ER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE . IT IS CLARIFIED THAT THE APPEAL, REVISION OR RECTIFICATION PROCEEDINGS PENDI NG ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION SHALL NO T ABATE. SAVE AS OTHERWISE PROVIDED IN THE PROPOSED SECTION 153A, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASS ESSMENT OR REASSESSMENT MADE UNDER SECTION 153A. IT IS ALSO CLARIFIED THAT ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153A SHALL BE SUBJE CT TO INTEREST, PENALTY AND PROSECUTION, IF APPLICABLE. IN THE ASSESSMENT O R REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, T HE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSME NT YEAR. 65.6 THE NEW SECTION 153B PROVIDES FOR THE TIME LIMIT F OR 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 WITH IN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAS T OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER S ECTION 132A WAS EXECUTED. 65.7 THIS SECTION ALSO PROVIDES THAT ASSESSMENT IN RESP ECT 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 13 2A SHALL BE COMPLETED WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS 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 L IMITATION FOR COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT, THE PERIOD DURI NG WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJ UNCTION OF ANY COURT; OR THE PERIOD COMMENCING FROM THE DAY ON WHICH THE ASS ESSING OFFICER DIRECTS THE ASSESSEE TO GET HIS ACCOUNTS AUDITED UNDER SUB- SECTION (2A) OF SECTION 142 AND ENDING ON THE DAY ON WHICH THE ASSESSEE IS REQUIRED TO FURNISH A REPORT OF SUCH AUDIT UNDER THAT SUB-SECTION, OR THE TIME TAKEN IN REOPENING WHERE AN APPLICATION MADE BEFORE THE SETTLEMENT COM MISSION UNDER SECTION 245C IS REJECTED BY IT OR IS NOT ALLOWED TO BE PROC EEDED WITH BY IT, THE PERIOD COMMENCING ON THE DATE ON WHICH SUCH APPLICATION IS MADE AND ENDING WITH THE DATE ON WHICH THE ORDER UNDER SUB-SECTION(1) OF SECTION 245D IS RECEIVED BY THE COMMISSIONER UNDER SUB-SECTION (2) OF THAT SECTION, SHALL BE EXCLUDED. IF, AFTER THE EXCLUSION OF THE AFORESAID PERIOD, TH E PERIOD OF LIMITATION AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASS ESSMENT OR REASSESSMENT, AS THE CASE MAY BE, IS LESS THAN SIXTY DAYS, SUCH R EMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAYS AND THE PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY. 65.9 THE NEW SECTION 153C PROVIDES THAT WHERE AN ASSESS ING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTH ER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONG OR BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT, OR DOCUMENTS OR ASSETS SEIZED OR REQUISITI ONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER S UCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST SUCH OTHER PERSON AND ISSUE SUCH IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 6 OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME O F SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. 65.10 AN APPEAL AGAINST THE ORDER OF ASSESSMENT OR REASSE SSMENT UNDER SECTION 153A SHALL LIE WITH THE COMMISSIONER OF INC OME-TAX (APPEALS). 65.11 CONSEQUENTIAL AMENDMENTS HAVE ALSO BEEN MADE IN SEC TIONS 132, 132B, 140A, 234A, 234B, 246A AND 276CC TO GIVE REFE RENCE TO SECTION 153A IN THESE SECTIONS. 65.12 THESE AMENDMENTS WILL TAKE EFFECT FROM JUNE 1, 200 3.' A PERUSAL OF SECTION 153A SHOWS THAT IT STARTS WITH A NON OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE WHICH IS COVERED BY SEC TIONS 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 ASS ESSMENT TO BE MADE IN CASES OF SEARCH AND SEIZURE. SUCH AN ASSESSMENT WAS POPULARL Y KNOWN AS BLOCK ASSESSMENT BECAUSE THE CHAPTER PROVIDED FOR A SINGLE ASSESSME NT 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 UPTO THE DATE ON WHICH THE SEARCH WAS CONDUC TED WAS ALSO INCLUDED IN WHAT WAS KNOWN AS BLOCK PERIOD . THOUGH A SINGLE ASSESSMENT ORDER WAS TO BE PASSE D, THE UNDISCLOSED INCOME WAS TO BE ASSESSED IN THE DI FFERENT ASSESSMENT YEARS TO WHICH IT RELATED. BUT ALL THIS HA D TO BE MADE IN A SINGLE ASSESSMENT ORDER. THE BLOCK ASSESSMENT SO MADE WAS INDEPENDENT OF AND IN ADDITI ON TO THE NORMAL ASSESSMENT PROCEEDINGS AS CLARIFIED BY THE EXPLANATION BELOW S ECTION L588A(2). AFTER THE INTRODUCTION OF THE GROUP OF SECTIONS NAMELY, 153A TO 153C, THE SINGLE BLOCK ASSESSMENT CONCEPT WAS GIVEN A GO-BY. UNDER THE NEW SECTION 153A, IN A CASE WHERE ET SEARCH IS INITIATED UNDER SECTION 132 OR R EQUISITION OF BOOKS OF ACCOUNT, DOCUMENTS OR ASSETS IS MADE UNDER SECTION 132A AFTE R 31.5.2003, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICES CALLING UPON TH E SEARCHED PERSON TO FURNISH RETURNS FOR THE SIX ASSESSMENTS YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR M WHICH THE SEARCH WAS CONDUCT ED OR REQUISITION WAS MADE. THE OTHER DIFFERENCE IS THAT THERE IS NO BROKEN PERIOD FROM THE FIRST DAY OF APRIL OF THE FINANCIAL YEAR IN WHICH THE SEARCH TOOK PLACE OR TH E REQUISITION WAS MADE AND ENDING WITH THE DATE OF SEARCH/REQUISITION. UNDER SECTION 153A AND THE NEW SCHEME PROVIDED FOR, THE AO IS REQUIRED TO POWERS IN RESPE CT OF THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. UNDER THE PROVISIONS OF SECTION 153I\ THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH RETURNS FOR EACH ASSESSM ENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WA S MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFIC ER IS EMPOWERED TO ASSESS OR REASSESS THE ' TOTAL INCOME ' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEP ARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH T HE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSM ENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSES S 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 ORDER IN RESP ECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND T HE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 7 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 14 3(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH / REQUISITION, THE ASSESSING OFFICER IS EMPO WERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING N OTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME 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, AS PROV IDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF A N ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REA SSESSMENTS WITHOUT ANY FETTERS, IF NEED 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 SIX ASSESSMEN T YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS ' SHALL ABATE '. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE ASSESSMENT ORDE RS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CONSIDERATION, THAT IS BECAU SE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE TOTAL INCOME OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISI TION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SA ME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE, IN ORDER TO ENSUR E THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDING TH E ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY O NE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSES SMENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION SHALL ABATE '. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED , FOR THE ASSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DE CLARED 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 OF THE ASSESSEE IN W HICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASES WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS H AVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS ARC SUB SISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUES TION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE ( WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151 ) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. S UCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMIL AR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 8 AND THE INCOME THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE I S NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS 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. 3.2.3 FURTHER, THE HON'BLE KERALA HIGH COURT M THE CASE OF E. N. GOPAKUMAR VS CIT REPORTED IN [2017] 390 ITR 131 HAS OBSERVED THAT SE CTION 153A IS A PROVISION WHICH DEALS WITH ASSESSMENT IN CASE OF SEARCH OR REQUISIT ION. THE ACTIVATION OF A SEARCH IS NOT SOMETHING, WHICH IS REGULATED BY ANY LIMIT AS T O PERIOD OF TIME. EVEN IF RETURNS ARE FILED AND REGULAR ASSESSMENTS ARE CONCLUDED, SEARCH ON PREMISES COULD ALWAYS BE MADE; IF THE AUTHORITY CONCERNED IS SATISFIED THAT ACTION OUGHT TO PROCEED IN THAT LINE. ONCE THAT IS DONE, SECTION 153A(1)(A) AUTHORISES TH E ISSUANCE OF NOTICE CALLING FOR FILING OF RETURNS. ONCE A RETURN IS FILED IN ANSWER TO SUCH A NOTICE, THE EXPLANATION TO SECTION 153A PROVIDES, AMONG OTHER THINGS, THAT ALL PROVISIONS OF THE INCOME TAX ACT WILL APPLY TO THE ASSESSMENT MADE UNDER SECTION 153 A OF THE ACT. THIS IS THE MANNER IN WHICH THE PROVISIONS IN SECTIONS 153A, 153B AND 153C OF THE ACT WOULD REGULATE. ONCE THAT IS DONE, IT IS WELL WITHIN THE JURISDICTI ON OF THE ASSESSING AUTHORITY TO PROCEED WITH ANY LAWFUL MODES OF ASSESSMENT AS PRES CRIBED IN THE ACT. THE STATUTE NOWHERE MAKES IT CONDITIONAL THAT THE DEPARTMENT HA S TO UNEARTH SOME INCRIMINATING MATERIAL TO CONCLUDE SOME METHOD AGAINST THE ASSESS EE IN EVENTS WHERE THE ASSESSMENT IS TRIGGERED BY A NOTICE UNDER SECTION 1 53A(1)(A) OF THE ACT. THIS MEANS THAT EVEN WHEN SUCH NOTICE IS TRIGGERED FOLLOWING A SEARCH, THE 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 U NDER SECTION 153A(1)(A) OF THE ACT CAN BE CONCLUDED AGAINST THE INTEREST OF THE AS SESSEE INCLUDING MAKING ADDITIONS EVEN WITHOUT ANY INCRIMINATING MATERIAL BEING AVAIL ABLE AGAINST THE ASSESSEE IN THE SEARCH UNDER SECTION 132 OF THE ACT ON THE BASIS OF WHICH THE NOTICE WAS ISSUED UNDER SECTION 153A(1)(A) OF THE ACT. 3.2.4 FURTHER IT IS IMPORTANT TO NOTE THAT, THE HON'BLE KERALA HIGH COURT WHILE DELIVERING THE ABOVE JUDGMENT ALSO REFERRED TO THE FOLLOWING DECISIONS WHICH THE APPELLANT RELIED IN HIS DEFENSE. (I) CIT V. KABUL CHAWLA 380 ITR 573, (II) CIT V. CONTINENTAL WAREHOUSING CORPN. LTD. 3 74 ITR 645 3.2.5 THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS RAJ KUMAR ARORA [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 HA S BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSME NT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. CONSEQUENTLY, THERE WOULD BE ONL Y ONE ASSESSMENT ORDER IN RESPECT OF SIX ASSESSMENT YEARS IN WHICH THE TOTAL DISCLOSED OR UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. CONSEQUENTLY, EVEN THOUGH AN ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 143(1)(A) OR UNDER SECTION 143 (3), THE AO WOULD BE REQUIRED TO REOPEN THESE PROCEEDINGS AND REASSESS THE TOTAL INC OME TAKING NOTICE OF UNDISCLOSED INCOME EVEN FOUND DURING THE SEARCH AND SEIZURE OPE RATION. THE FETTER IMPOSED UPON THE AO UNDER SECTIONS 141 AND 148 HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE UNDER SECTION 153A. WHERE THE ASSESSMENT OR REASSES SMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE B EEN PASSED, WHICH WERE IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 9 SUBSISTING WHEN THE SEARCH WAS MADE, THE AO WOULD B E COMPETENT TO REOPEN THE ASSESSMENT PROCEEDING ALREADY MADE AND DETERMINE TH E TOTAL INCOME OF THE ASSESSEE. THE AO, WHILE EXERCISING THE POWER UNDER SECTION 153A, WOULD MAKE ASSESSMENT AND COMPUTE THE TOTAL INCOME OF THE ASSE SSEE INCLUDING THE UNDISCLOSED INCOME, NOTWITHSTANDING THE ASSESSEE HAD FILED THE RETURN BEFORE THE DATE OF SEARCH WHICH STOOD PROCESSED UNDER SECTION 143(1)(A). IN T HE LIGHT OF THE AFORESAID, THE REASONS GIVEN BY THE TRIBUNAL THAT NO MATERIAL WAS FOUND DURING THE SEARCH CANNOT BE SUSTAINED, SINCE THE AO HAS THE POWER UNDER SECT ION 153A TO REASSESS THE RETURNS OF THE ASSESSEE NOT ONLY FOR THE UNDISCLOSE D INCOME, WHICH WAS FOUND DURING THE SEARCH OPERATION BUT ALSO WITH REGARD TO THE MA TERIAL THAT WAS AVAILABLE AT THE TIME OF THE ORIGINAL ASSESSMENT. 3.2.6 THE HON'BLE KERALA HIGH COURT IN THE CASE OF FRANCIS CLAY DECOR TILES REPORTED IN [2016] 385 ITR 624 OBSERVED THAT ON GO ING 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 SUB -SECTION(1) OF SECTION 131 OF THE 1961 ACT, OR A NOTICE UNDER SUB-SECTION (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 PRODUCED, ANY BOO KS OF ACCOUNT OR OTHER DOCUMENTS HAS OMITTED OR FAILED TO PRODUCE, OR CAUS E TO BE PRODUCED, SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS REQUIRED BY SUCH SUMM ONS OR NOTICE ETC., CAN AUTHORISE THE OFFICERS REFERRED THEREIN TO ENTER AN D SEARCH ANY BUILDING ETC. SUCH AUTHORISED OFFICER UNDER SUB-SECTION (4) OF SECTION 132 MAY DURING THE COURSE OF SEARCH OR SEIZURE EXAMINE ON OATH AN PERSON WHO IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT, DOCUMENT, MONEY, B ULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION MAY THEREAFTER BE USED IN EVIDENCE IN A NY PROCEEDING UNDER THE INDIAN INCOME TAX ACT, 1922 OR UNDER THE ACT 1961. THEREFO RE, GOING BY THE SAID PROVISION NOT ONLY THE BOOKS, DOCUMENTS ETC., THAT ARE UNEART HED DURING THE COURSE OF SEARCH BUT A STATEMENT MADE BY SUCH PERSON DURING SUCH EXA MINATION CAN ALSO BE USED IN EVIDENCE IN ANY PROCEEDING UNDER THE INCOME TAX ACT , 1961. IT WAS FURTHER HELD THAT ON A PLAIN READING OF SECTION 153A, IT IS CLEAR THA T ONCE SEARCH IS INITIATE UNDER SECTION 132 OR A REQUISITION IS MADE UNDER SECTION 132A AFT ER THE 31ST DAY OF MAY 2003, THE ASSESSING OFFICER IS EMPOWERED TO ISSUE NOTICE TO S UCH PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME IN RESPECT OF EACH ASSESSM ENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B). IT FURT HER TREATS THE RETURNS 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 C LEAR THAT ONCE A NOTICE IS ISSUED AND THE ASSESSING OFFICER HAS REQUIRED THE ASSESSEE TO FURNISH 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 THAT A S PER THE FIRST PROVISO, THE ASSESSING OFFICER IS BOUND TO ASSESS OR REASSESS THE TOTAL IN COME SPECIFIED IN SUB-CLAUSES (A) AND (B) OF SECTION 153A. HOWEVER, EVEN IF NO DOCUME NTS ARE UNEARTHED OR ANY STATEMENT MADE BY THE ASSESSEE DURING THE COURSE OF SEARCH UNDER SECTION 132 AND NO MATERIALS ARE RECEIVED FOR THE AFORE-SPECIFIED P ERIOD OF SIX YEARS, THE ASSESSEE IS BOUND TO FILE A RETURN, IS THE SCHEME OF THE PROVIS ION. 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 PROVIDED UNDER SECTION 153A(1)(A). 3.2.7 FURTHER THE HON'BLE ALLAHABAD HIGH COURT IN THE CA SE OF CIT VS. KESARWANI ZARDA BHANDAR SAHSON VIDE THEIR ORDER DATED 06.09.2016 IN ITA NO 270 OF 2014 HELD THAT THE ASSESSING OFFICER HAS POWER TO REASSE SS RETURNS OF ASSESSEE NOT ONLY IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 10 FOR UNDISCLOSED INCOME FOUND DURING SEARCH OPERATIO N BUT ALSO WITH REGARD TO MATERIAL AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT. 3.2.8 THE HON'BLE KERALA HIGH COURT IN ITS RECENT DECISI ON IN THE CASE OF DR. A.V.SREEKUMAR VS. CIT, KOCHI REPORTED IN 12018] 404 ITR 642 HELD THAT REL IANCE PLACED ON 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. 3.2.9 FURTHER, ON A CAREFUL READING OF THESE SETS OF DIC HOTOMOUS DECISIONS, I AM OF THE. CONSIDERED VIEW THAT THERE IS NO DISPUTE 'WITH REGARD TO ABATED ASSESSMENTS. THE SOLE DISPUTE IS WITH REGARD TO THE SOURCE AND THE QUALITY / CREDIBILITY OF MATERIAL REQUIRED FOR TAMPERING WITH UNABATED ASSESSMENTS. AS LONG AS THERE IS A MATERIAL FOUND DURING THE COURSE OF SEARCH THERE IS NO DISPUTE TO TAMPER THE UNABATED ASSESSMENT. FURTHER ON A CAREFUL READING OF CASE LAWS CITED (SUPRA), I AM OF THE VIEW THAT ANY OTHER MATERIAL IN THE POSSESSION OF THE AO AND HE HAS REASON TO BELIEVE T HAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IS CAPABLE OF TAMPERING THE UNABATED ASSESSMENT. THE NATURE AND CREDIBILITY OF INFORMATI ON IN THE POSSESSION OF AO CAN EITHER BE IN THE FORM CAG REPORT, TAX EVASION P ETITION (TEP) , INVESTIGATION REPORT RECEIVED FROM THE DGIT(INV.), REPORTS OF OTH ER LAW ENFORCING /INTELLIGENCE / REGULATORY AUTHORITY OR AGENCIES SUCH AS ENFORCEM ENT DIRECTORATE, CBI, DRI, REI, SEBI, GST ETC., ETC., OR WHERE ITR RAISES MORE QUESTIONS THAN SATISFYING THE QUERIES ALREADY 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 SEC.153A( 1) OPENS WITH NON OBSTANTE CLAUSE. AT THE SAME TIME THE AO IS NOT ALLOWED TO TAMPER THE UNABATED ASSESS MENT FOR MAKING ROWING ENQUIRIES OR FOR MAKING AD-HOC DISALLOWANCES / ADDI TIONS BASED ON SURMISE AND CONJECTURE . AS DISCUSSED ABOVE, THE ERSTWHILE CHAPTER XIV-B D EALT WITH SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES WHERE PARA LLEL ASSESSMENT WAS POSSIBLE. IN OTHER WORDS ASSESSMENT VI] S. 158BC OR 158BD HAS TO STRICTLY CONFINE TO MATERIAL SEIZED DURING THE COURSE OF SEARCH. ANY MATERIAL WH ICH WAS NOT PART OF THE PANCHNAMA, THE ASSESSMENT HAS TO BE MADE UNDER OTHE R PROVISIONS OF THE ACT SUCH AS 143(3)/147/263/154 ETC. HOWEVER THIS CONCEPT OF MULTIPLE ASSESSMENTS WAS DONE AWAY WITH INTRODUCTION OF SEC.153A/ 153C BY FINANCE ACT 2003 W.E.F. 01.06.2003 AND THEREFORE THERE CAN BE ONLY ONE ASSESSMENT. IN OTHER WORDS WHILE COMPLETING THE ASSESSMENT U/S. 153A OR 153C THE AO NOT ONLY REQUIR ED TO TAKE THE MATERIAL GATHERED AS PER PANCHNAMA DRAWN U/S.132 OR 132A, BU T ALSO ANY OTHER CREDIBLE INFORMATION IN HIS POSSESSION. IF THE CONTENTION OF THE APPELLANT IS ACCEPTED, THA T IN ABSENCE OF INCRIMINATING MATERIAL WHICH IS NOT P ART OF PANCHNAMA NO ADDITION CAN BE MADE; GIVES RISE TO ABSURD RESULT W HICH SHALL NOT BE INCONFORMITY WITH THE LEGISLATIVE INTENTION OF SING LE ASSESSMENT. FOR HYPOTHETICAL SAKE A SEARCH IS CONDUCTED ON 26.08.2019 WHEREIN N O INCRIMINATING MATERIAL EITHER FOUND OR SEIZED AS PER PANCHNAMA DR AWN. AS PER MANDATE U/S.153A(1) THE AO ISSUED NOTICE FOR A.Y.2014-15 TO A.Y.2019-20. IT IS ASSUMED THAT THESE ARE UNABATED ASSESSMENTS. ASSUMING FURTHER TH AT THE AO RECEIVED DEFINITE AND CREDIBLE INFORMATION FROM INTELLIGENCE / REGULATORY AGENCIES SUCH AS SEBI, DRI, CBI ETC WITH REGARD TO TAX EVASION BY THE ASSESSEE FOR A.Y.2014-15. IF THE ARGUMENT OF THE APPELLANT IS ACCEPTED THE AO CAN DO NOTHING WIT H THE INFORMATION SO RECEIVED AS THE SAME IS NOT PART OF THE PANCHNAMA. THIS WAS NEV ER THE LEGISLATIVE INTENTION OF SINGLE ASSESSMENT WHERE THE AN W8.8 AUTHORIZED TO A SSESS OR REASSESS THE TOTAL INCOME. HENCE IN NUTSHELL THE SOURCE, QUALITY AND C REDIBILITY OF MATERIAL EMPOWERS THE AO TO TAMPER UNABATED ASSESSMENT ALONG WITH MATERIA L IF ANY WHICH IS PART OF PANCHNAMA. IN THE INSTANT CASE THE AO WAS IN POSSESSION OF SOM E CREDIBLE IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 11 INFORMATION FROM DIRECTORATE OF INCOME TAX, INVESTI GATION, KOLKATA THAT THE APPELLANT HAS TAKEN ENTRIES OF BOGUS EXPENSES FROM M/S. ARVINDA INFRASTRUCTURE PVT LTD., KOLKATA. THEREFORE, THE CONTENTION OF THE APPELLANT THAT THE ADDITION IF ANY HAS TO STRICTLY CONFINE TO THE INCRIMINATING MA TERIAL FOUND AS A RESULT OF SEARCH IS HEREBY REJECTED. 5. THE CIT(A) HAS THEREAFTER DELETED THE IMPUGNED B OGUS PURCHASESDISALLOWANCE ON MERITS AS FOLLOWS:- 4.3 APPELLATE FINDING AND DECISION : I HAVE CAREFULLY CONSIDERED THE ORDER OF THE LEARNE D AO AS WELL AS THE WRITTEN SUBMISSION MADE BY THE APPELLANT. AS RIGHTLY POINTE D OUT BY THE APPELLANT THERE WAS NO INCRIMINATING MATERIAL EITHER FOUND OR SEIZED WI TH REGARD TO BOGUS RAISING EXPENSES CLAIMED FROM M/S ARVINDA INFRASTRUCTURE PV T LTD (AIPL) DURING SEARCH ON 20.09.2015. EVEN THE AO HAS NOT REFERRED ANY DOCUME NT FOUND AND/OR SEIZED IN THE ASSESSMENT ORDER. IT IS A FACT THAT THE AO RECEIVED INFORMATION FROM DIRECTORATE OF INCOME TAX (INV.), KOLKATA WHEREIN IT WAS ALLEGED F URTHER ALLEGED THAT THE DIRECTORS OF AIPL HAVE ADMITTED IN THEIR STATEMENT THAT THEY HAV E FLOATED SEVERAL COMPANIES TO PROVIDE BOGUS ENTRIES AND CHARGED COMMISSION @ 20 P AISE FOR SUCH ENTRIES. ON THE OTHER HAND THE APPELLANT SUBMITTED THAT THEY HAVE P RODUCED COMPLETE DETAILS OF THE PAYMENT MADE TO AIPL AND FURTHER SUBMITTED THAT THE PAYMENT WAS MADE THROUGH BANKING CHANNEL AND TDS AS REQUIRED WAS DULY DEDUCT ED. THE APPELLANT SUBMITTED THAT DURING THE YEAR THE TOTAL RAISING EXPENSES CLA IMED BY THE APPELLANT WAS RS.9,40,52,425/ - AND THE AO HAS NOT CAST ANY DOUBT S ON THESE EXPENSES. IT WAS FURTHER SUBMITTED THAT IL IS NOT POSSIBLE TO MAKE A NY TRANSACTIONS BYPASSING ALL THE RELEVANT RULES AND REGULATIONS OF MINING INDUSTRIES . IN SPITE OF THE SAME, THE AO BASED ON SOME ALLOWING THE CROSS-EXAMINATION OF THE PARTY MADE AN ADDITION IN THE HANDS OF THE APPELLANT , EVEN THOUGH NO INCRIMINATI NG MATERIAL WAS FOUND / SEIZED AS A RESULT OF SEARCH. IN THIS CONTEXT THE APPELLANT A LSO RELIED ON THE DECISION OF HON'BLE JURISDICTIONAL ITAT IN THE CASE OF ACIT CENTRAL CIRCLE JAMSHEDPUR VS. M/S SURAJ SOLUTIONS PVT. LTD., DATED 29/11/2018 AS STATED EARLIER, THE AO HAS WHOLLY RELIED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING, KOLKATA, WITHOUT REFERRING TO A NY SEIZED MATERIAL. THE LD. AO HAS NOT BROUGHT ANY FRESH MATERIAL EVIDENCE ON RECORD N OR HAS HE STATEMENT RECORDED FROM THE DIRECTORS OF AIPL TO THE APPELLANT BASED O N WHICH ADDITION WAS MADE IN-FACT THE AO TOTALLY RELIED ON THE BALD STATEMENTS GIVEN BY THE OFFICIALS OF AIPL WITHOUT ANY PROOF OR CORROBORATIVE MATERIAL. FURTHER, THE AO HA S ALSO NOT PROVIDED AN OPPORTUNITY TO CROSS EXAMINE THE THIRD PARTY. THE INFORMATION W HICH HAS BEEN OBTAINED FROM DGIT, INVESTIGATION, KOLKATA BY THE ID. AO OUGHT TO HAVE BEEN SHARED WITH THE APPELLANT FOR THEIR REBUTTAL IN LINE WITH THE PRINC IPLES OF NATURAL JUSTICE. THE HON'BLE ITAT, DELHI BENCH IN THE CASE OF ITO VS. PAWAN KUMAR GUPTA [2011] 43 SOT 32 (DELHI - TRIB.) HELD THAT - THE ISSUE WAS AS TO WHETHER THE COMMISSIONER (APPEA LS) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON THE B ASIS OF THE STATEMENTS WHICH WERE NEITHER CONFRONTED TO THE ASSESSEE FOR REBUTTA L NOR ANY OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO CROSS-EXAMINE THE DEPONENTS IN S PITE OF REPEATED REQUESTS BY THE ASSESSEE TO THE ASSESSING OFFICER TO ALLOW SUCH OPP ORTUNITY. UNDENIABLY, THE STATEMENTS OF ' B ', HIS SON ' R ' AND THE ACCOUNTANT, WERE THE BASIS OF THE ADDITIO N MADE BY THE ASSESSING OFFICER UNDER SECTION G9A. UNDENIA BLY AGAIN, THOSE STATEMENTS WERE NEVER PROVIDED TO THE ASSESSEE FOR REBUTTAL. A LSO, HE WAS NOT AFFORDED ANY OPPORTUNITY TO CROSS-EXAMINE THE DEPONENTS OF THESE STATEMENTS, THIS WAS DESPITE OF IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 12 THE ACT THAT THE ASSESSEE HAD MADE REPEATED REQUEST S TO THE ASSESSING OFFICER FOR PROVIDING THE STATEMENTS TO HIM AND FOR AFFORDING H IM AN OPPORTUNITY TO CROSS- EXAMINE THOSE DEPONENTS. PERTINENTLY, EVEN AT THE F IRST APPELLATE STAGE, THE MATTER WAS REMITTED BY THE COMMISSIONER (APPEALS) TO THE A SSESSING OFFICER, HOWEVER, ONCE AGAIN, NO SUCH OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. IT WAS ON ACCOUNT OF THESE FACTS THAT THE COMMISSIONER (APPEALS) DELETED THE ADDITION. THE COMMISSIONER (APPEALS) FURTHER OBSERVED THAT THE ASSESSING OFFIC ER HAD FAILED TO ESTABLISH ANY CASE AGAINST THE ASSESSEE, NOR WAS ANY CORROBORATIVE EVI DENCE GATHERED BY THE ASSESSING OFFICER IN RELATION TO THE ASSESSEE. THE ASSESSING OFFICER, AS OBSERVED BY THE COMMISSIONER (APPEALS), MERELY SUMMARIZED THE S ALIENT FEATURES OF THE ASSESSMENT PROCEEDINGS RELATING TO ' B ' AND THEREAFTER, SUMMARILY REJECTED THE REPLY OF THE ASSESSEE AS NOT ACCEPTABLE. THOUGH THE ASSES SING OFFICER REFERRED TO THE STATEMENTS OF ' B ' AND OTHERS ADMITTING THEIR INVOLVEMENT IN CASH LO AN TRANSACTIONS, THESE STATEMENTS WERE NOT PROVIDED TO THE ASSESSEE. THE ALLEGATION ON THE ASSESSEE HAVING ENTERED INTO LOAN TRANSACTION WITH ' B ' WAS NOT PROVED, SINCE NOTHING WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER REGARDIN G ANY FURTHER INVESTIGATIONS TO CONFIRM ANY SUCH LOAN TRANSACTION. IN VIEW OF THE A BOVE. NO ERROR WHATSOEVER, WAS FOUND WITH THE ORDER OF THE COMMISSIONER (APPEALS), AND THEREFORE, THE SAME WAS HEREBY CONFIRMED. THE HON'BLE ITAT, JAIPUR BENCH IN THE CASE OF P.V.JEWELLERS VS. ITO [1993] 45 TTJ 541 (JP) HELD THAT - WHERE REVENUE HAD MADE ADDITIO NS UNDER SECTION 69 ON BASIS OF PHOTOCOPIES OF DOCUMENTS, STATEMENTS AND OATH GIVEN BY A FOREIGNER, SUCH ADDITIONS COULD NOT BE SUSTAINED UNLESS ASSESSEE HAD BEEN GIV EN AN OPPORTUNITY EITHER TO SEE ORIGINAL DOCUMENTS OR EVEN TO CROSS-EXAMINE PARTY I N WHOSE BOOKS OF ACCOUNT THESE ENTRIES WERE MADE. THE HON'BLE ITAT, MURNBAI BENCH IN THE CASE OF ACIT VS. I & E TRADE CONSULTANTS (P.) LTD. [2017] 88 TAXMANN.COM 638 (MUMBAI-TRIB.) HELD THAT - WHERE DIRECTOR OF SEARCHED COMPANY GAVE STATEMENT THAT THEY WERE PRO VIDING ACCOMMODATION ENTRIES TO ASSESSEE BY WAY OF PAPER ENTRY OF BILLS ALLEGEDL Y FOR PROVIDING SERVICES TO ASSESSEE'S CUSTOMERS, BUT SAID STATEMENT OF SEARCHE D PERSON WAS NOT FURNISHED BY ASSESSING OFFICER TO ASSESSEE NOR CROSS-EXAMINATION WAS ALLOWED, CHALLENGE TO REOPENING OF CONCLUDED ASSESSMENT BY ASSESSEE WAS T O BE RESTORED TO FILE OF ASSESSING OFFICER FOR DE NOVO DETERMINATION OF ISSU E ON MERITS. THE HONBLE ITAT, JAIPUR BENCH IN THE CASE OF SMT. RENU AGARWAL VS. ACIT [2017] 88 TAXMANN.COM 872 (JAIPUR - TRIB.) HELD THAT - WHE RE SELLER HAD GIVEN A STATEMENT ON OATH THAT HE HAD-RECEIVED-RS. -65 LAKHS ONLY FR OM ASSESSEE ON SALE OF LAND AND THAT AGREEMENT TO SELL PLOT OF LAND AFTER CARRYING OUT CONSTRUCTION FOR RS. 1.41 CRORE WAS CANCELLED, IN ABSENCE OF ANY EVIDENCE OF PAYMEN T OF ANY ON-MONEY ON PURCHASE OF VACANT PLOT; LOWER AUTHORITIES HAD ERRED IN CONF IRMING ADDITION OF DIFFERENTIAL AMOUNT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF PLOT. IN VIEW OF THE ABOVE FACTUAL DISCUSSION AND RELYING ON THE CASE LAWS CITED ABOVE, AND ALSO THE DECISION OF JURISDICTIONAL ITAT (SUPRA) TH E AO IS DIRECTED TO DELETE ADDITION MADE OF RS.1,80,72,461/- HENCE, THESE GROUNDS ARE ALLOWED . 6. LEARNED CIT-DR VEHEMENTLY CONTENDED DURING THE C OURSE OF HEARING THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING WITH THE IMPUGNED IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 13 DISALLOWANCE OF BOGUS EXPENSES TO THE TUNE OF 1,80,72,465/- IN SEC. 153A ASSESSMENT BASED ON THE SEARCH STATEMENT OF M/S ARV INDA INFRASTRUCTURE PVT. LTD.S DIRECTOR (SUPRA). HE SOUGHT TO REVIVE THE AS SESSING OFFICERS ACTION. DISALLOWANCE THE ASSESSEES BOGUS PURCHASES BASED A S SOME CREDIBLE MATERIALS. 7. LEARNED AUTHORIZED REPRESENTATIVE ON THE OTHER H AND RAISED A NEW PLEA BY QUOTING RULE 27 OF THE INCOME TAX APPELLATE TRIB UNAL RULES THAT THE CIT(A)S DETAILED DISCUSSION IN PARA-3.2.9 (SUPRA) HAS ACCEPTED THE ASSESSEES CONTENTIONS IN PRINCIPLE THAT THE IMPUGN ED ASSESSMENT IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH AND THEREFORE, THE ASSESSMENT ITSELF DESERVE S TO BE QUASHED IN VIEW OF THE FOREGOING CASE LAW DISCLOSED AT LENGTH HEREINAB OVE. 8. MR. SINGH ON THE OTHER HAND, VEHEMENTLY OPPOSED THE ASSESSEES FOREGOING LEGAL PLEA ON THE GROUND THAT THE SAME DE SERVES TO BE REJECTED OUTRIGHTLY SINCE RAISED AT THIS BELATED STAGE BY WA Y OF AN ORAL ARGUMENT ONLY. HE REITERATED HIS EARLIER ARGUMENTS THAT THE ASSESS ING OFFICER HAS RIGHTLY DISALLOWED THE ASSESSEES PURCHASE FOUND TO BE BOGU S IN CASE OF M/S ARVINDA INFRASTRUCTURE PVT. LTD. 9. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO TH E RIVAL PLEADINGS QUA VALIDITY OF SEC. 153A ASSESSMENT IN ISSUE. IT IS NO T IN DISPUTE THAT THE ASSESSEE HAS POSTED CHALLENGE THERETO BY WAY OF AN ORAL PLEA UNDER RULE 27 OF THE ITAT RULES HON'BLE DELHI HIGH COURTS RECENT DECISION IN SANJAY SAWHNAY VS PCIT ITA NO. 834 OF 2019 DATED 18.05.2020 HOLDS THAT THE SAID RULE 27 ENTIT LES A RESPONDENT BEFORE THE TRIBUNAL TO SUPPORT THE CIT(A )S APPEAL ON ANY GROUND DECIDED AGAINST HIM, NOTWITHSTANDING THE FACT THAT HE HAS NEITHER FILED CROSS APPEAL NOR CROSS-OBJECTION AGAINST THE SAME. THEIR LORDSHIPS ALSO PROPAGATE A CAVEAT THAT THE APPELLANT BEFORE THE TRIBUNAL; IN S UCH A CASE, CANNOT BE PUT IN A SITUATION MORE WORSEN THAN THAT ALREADY IN THE LOWE R APPELLATE ORDER. HON'BLE IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 14 BOMBAY HIGH COURTS LANDMARK DECISION IN B.R. BAMANSI VS. COMMISSIONER OF INCOME TAX 83 ITR 223 (BOM) ALSO PLACES THE VERY EMBARGO IN S UCH AN INSTANCE WHEREIN THE RESPONDENT BEFORE THE TRIBUNAL SEEKS TO UPHOLD THE LOWER APPELLATE ORDER ON A GROUND WHICH WAS DECIDED AGAIN ST HIM BEFORE THE FIRST APPELLATE AUTHORITY. WE GO BY THE VERY REASONING AN D ALLOW THE ASSESSEES TO RAISE THE ABOVE PLEA CHALLENGING LEGALITY OF SEC. 1 53A ASSESSMENT ON THE GROUND THAT THE SAME IS NOT BASED ON ANY INCRIMINAT ING MATERIAL FOUND OR SEIZED DURING THE SEARCH WITH A RIDER THAT THE REVE NUE / APPELLANT WOULD NOT BE PLACED IN SUCH WORSE THAN THAT IT IS ALREADY IN THE CIT(A)S ORDER. IN OTHER WORDS, THE MAXIMUM RELIEF IN ASSESSEES FAVOUR SHAL L BE TO DECLINE THE REVENUES APPEAL THEREBY AFFIRMING THE CIT(A)S ORD ER ONLY. 10. COMING TO THE ASSESSEES PLEA THAT THE IMPUGNED ASSESSMENT IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH, IT TRANSPIRES THAT THE HON'BLE JURISDICTION AL HIGH COURT HAS NOT DECIDED THIS ISSUE OR REVENUES FAVOUR (SUPRA). IT IS FURTH ER AN ADMITTED POSITION THAT THE IMPUGNED BOGUS EXPENSES CLAIMED BY WAY OF ACCOM MODATION ENTRIES IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SE IZED DURING THE COURSE OF SEARCH AS CLEAR FROM A PERUSAL OF THE CIT(A)S ORDE R AS WELL (SUPRA). THE QUESTION THAT WHETHER OR NOT A SEARCH STATEMENT CAR RIES ANY EVIDENTIARY VALUE OR NOT IN ABSENCE OF THE CORRESPONDING SUPPORTIVE E VIDENCE, THE CBDT HAS ITSELF ISSUED THE CIRCULAR DATED 10.03.2003 AS REIT ERATED ON 18.12.2014 THAT SEARCH STATEMENTS IN ABSENCE OF EVIDENCE COLLECTED DURING SEARCH OR SURVEY ETC. DO NOT CARRY SIGNIFICANCE. WE THEREFORE ACCEPT THE ASSESSEES ARGUMENT THAT THE IMPUGNED ASSESSMENT IN THE BOGUS PURCHASES DISALLOWANCE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH IS NOT SUSTAINABLE OF LAW. WE PLACE RELIANCE ON HON'BLE APEX COURTS YET ANOTHER LANDMARK DECISION IN COMMISSIONER OF INCOME TAX VS. M/S VEGETABLE PRODUCTS LTD. , (1973) 88 ITR 192 (SC) THAT IN CASE OF HON'BLE NO N JURISDICTIONAL HIGH COURTS HAVING CONTRADICTING VIEWS AND IN ABSEN CE OF THE GUIDANCE COMING FROM THE HON'BLE JURISDICTIONAL HIGH COURT, THE VIE W FAVOURABLE TO THE TAXPAYER IT(SS)A NO.134/RAN/2019 A.Y. 2012-13 ACIT, CC-1,RNC VS. M/S DEVKABAI V ELJI PAGE 15 HAS TO BE ADOPTED. WE CONCLUDE IN THIS BACKDROP THA T THE IMPUGNED ASSESSMENT FRAMED IN ASSESSEES CASE IN SEC.153A R. W.S. 143(3) DESERVES TO BE QUASHED SINCE NOT BASED ON ANY INCRIMINATING MAT ERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH. WE ORDER ACCORDINGLY. THAT RENDERS ALL OTHER PLEADINGS ON MERITS AS INFRU CTUOUS KEEPING IN MIND RULE 27 OF THE INCOME TAX APPELLATE RULES (SUP RA). 11. THIS REVENUES APPEAL IS DISMISSED IN ABOVE TER MS. ORDER PRONOUNCED IN THE OPEN COURT 09/12/2020 SD/- SD/- ( ') ($% ') (J.SUDHAKAR REDDY) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S &- 09 / 12 /20 20 / / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT, C.C.-1, 7 TH FL, MAHABIR TOWER, MAIN ROAD, RANCHI-834001 2. /RESPONDENT-M/S DEVKABAI VELJI, BARAJAMDA, SINGHBH UM (WEST), JHARKHAND PIN-833221 3. 0 3 / CONCERNED CIT RANCHI 4. 3- / CIT (A) RANCHI 5. 7 %%0, 0 , / DR, ITAT, RANCHI 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ AB % 0 SR. PRIVATE SECRETARY, 0,