Smt. Kalpana Gupta, Kanpur V. Deputy Commissioner of Income Tax, Central Circle-II, Kanpur

ITSSA 142/LKW/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6691 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHIL K MADHOK
• Assessee Lawyers: S K GARG
• Keywords: Search and seizure; Document seized; Earning of tax free income; Additional evidence; Question of law; Assessment record; Block assessment; Reason to believe; Documents seized; TDS; Set aside
• Section: 69C; 143(3); 153A; 143(2); 13; 153; 22; 153C; 147; 68; 132; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SH. A. D. JAIN, VICE PRESIDENT DR. B. R. R. KUMAR, ACCOUNTANT MEMBER IT(SS)A NO. 130/LKW/2018 : ASSTT. YEAR : 2009-10 IT(SS)A NO. 131/LKW/2018 : ASSTT. YEAR : 2010-11 IT(SS)A NO. 132/LKW/2018 : ASSTT. YEAR : 2011-12 IT(SS)A NO. 133/LKW/2018 : ASSTT. YEAR : 2012-13 IT(SS)A NO. 134/LKW/2018 : ASSTT. YEAR : 2013-14 IT(SS)A NO. 135/LKW/2018 : ASSTT. YEAR : 2014-15 IT(SS)A NO. 136/LKW/2018 : ASSTT. YEAR : 2015-16 SMT. INDULATA GUPTA, 7/71A, TILAK NAGAR, KANPUR-208002 VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, KANPUR (APPELLANT) (RESPONDENT) PAN NO. ADBPG7161N IT(SS)A NO. 137/LKW/2018 : ASSTT. YEAR : 2009-10 IT(SS)A NO. 138/LKW/2018 : ASSTT. YEAR : 2010-11 IT(SS)A NO. 139/LKW/2018 : ASSTT. YEAR : 2011-12 IT(SS)A NO. 140/LKW/2018 : ASSTT. YEAR : 2012-13 IT(SS)A NO. 141/LKW/2018 : ASSTT. YEAR : 2013-14 IT(SS)A NO. 142/LKW/2018 : ASSTT. YEAR : 2014-15 IT(SS)A NO. 143/LKW/2018 : ASSTT. YEAR : 2015-16 SMT. KALPANA GUPTA, 7/71A, TILAK NAGAR, KANPUR-208002 VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, KANPUR (APPELLANT) (RESPONDENT) PAN NO. ADBPG7162R IT(SS)A NO. 293/LKW/2018 : ASSTT. YEAR : 2009-10 IT(SS)A NO. 294/LKW/2018 : ASSTT. YEAR : 2010-11 IT(SS)A NO. 295/LKW/2018 : ASSTT. YEAR : 2011-12 IT(SS)A NO. 296/LKW/2018 : ASSTT. YEAR : 2012-13 IT(SS)A NO. 297/LKW/2018 : ASSTT. YEAR : 2013-14 IT(SS)A NO. 298/LKW/2018 : ASSTT. YEAR : 2014-15 IT(SS)A NO. 299/LKW/2018 : ASSTT. YEAR : 2015-16 ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 2 ANAND KUMAR GUPTA, 7/71A, TILAK NAGAR, KANPUR-208002 VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, KANPUR (APPELLANT) (RESPONDENT) PAN NO. AATPG2552Q IT(SS)A NO. 44/LKW/2018 : ASSTT. YEAR : 2009-10 IT(SS)A NO. 45/LKW/2018 : ASSTT. YEAR : 2010-11 IT(SS)A NO. 46/LKW/2018 : ASSTT. YEAR : 2011-12 IT(SS)A NO. 47/LKW/2018 : ASSTT. YEAR : 2012-13 IT(SS)A NO. 48/LKW/2018 : ASSTT. YEAR : 2013-14 IT(SS)A NO. 49/LKW/2018 : ASSTT. YEAR : 2014-15 IT(SS)A NO. 50/LKW/2018 : ASSTT. YEAR : 2015-16 SMT. REENA GUPTA, 7/71A, TILAK NAGAR, KANPUR-208002 VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, KANPUR (APPELLANT) (RESPONDENT) PAN NO. ADBPG7163Q ASSESSEE BY : SH. S. K. GARG, ADV. REVENUE BY : SH. SUSHIL K. MADHOK, CIT DR DATE OF HEAR ING: 19 . 03 .20 20 DATE OF PRONOUNCEMENT: 03 .0 8 .20 20 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A)-IV, KANPUR DATED 28.12.2017 AND 12.02.2018. 2. SINCE, THE ISSUES INVOLVED IN ALL THESE APPEALS ARE COMMON, THEY WERE HEARD TOGETHER AND BEING ADJUDICATED BY A COMMON ORDER. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 3 3. FOR THE SAKE OF CONVENIENCE, THE ITA NO. 130/LKW/2018 IS TAKEN AS THE LEAD ORDER WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE: 1.1 BECAUSE THE 'CIT(A)' HAS GROSSLY ERRED IN HOLDING THAT THE ISSUE OF MERE EXPRESSION OF REQUISITE SATISFACTION IN THE CASE OF THE 'APPELLANT', SEVERALLY SPEAKING COULD HAVE BEEN RAISED ONLY BEFORE THE HON'BLE HIGH COURT ONLY AND IN FURTHER HOLDING, BY IMPLICATION, THAT THE SAID GROUND NOT HAVE BEEN ADJUDICATED BY HIM. 1.2 BECAUSE THE 'CIT(A)' ON A DUE CONSIDERATION OF MATERIAL AND INFORMATION ON RECORD, PARTICULARLY THAT A) SEARCH AND SEIZURE ACTION REFERRED TO BY THE ASSESSING OFFICER WAS IN PURSUANCE OF JOINT WARRANT OF AUTHORIZATION AND THERE WAS NO WARRANT OF AUTHORIZATION AS SUCH IN THE INDIVIDUAL NAME OF THE 'APPELLANT'; B) OWING TO WARRANT OF AUTHORIZATION BEING IN THE 'JOINT NAMES', THE PRESUMPTION WAS THAT 'SATISFACTION'' / ''REASON TO BELIEVE'' AS ENVISAGED IN CLAUSES (A), (B) AND (C) OF SUB-SECTION (1) OF SECTION 132 WAS ALSO IN THE JOINT NAMES; C) ON A CONJOINT READING OF SECTION 153A AND 132(1), IT WAS PRE-REQUISITE AT THE PART OF THE ASSESSING OFFICER TO ENSURE AND TO SHOW THAT THERE EXISTED REQUISITE ''SATISFACTION''/ ''REASON TO BELIEVE' IN THE CASE OF THE 'APPELLANT' HERSELF, INDIVIDUALLY AND SEVERALLY SPEAKING, SO AS TO TREAT HER TO BE THE 'PERSON IN WHOSE CASE SEARCH HAD BEEN INITIATED' AND LIABLE FOR PROCEEDINGS UNDER SECTION 153A; AND D) OTHERWISE ALSO, THE ASSESSMENT RECORDS NOWHERE SHOWED THAT SATISFACTION EXISTED IN THE INDIVIDUAL NAME OF THE 'APPELLANT' ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 4 SHOULD HAVE HELD THAT PRE-REQUISITE OF SECTION 153A REMAINED UNCOMPLIED WITH AND ASSESSMENT ORDER DATED 29.12.2016 WAS VOID AB-INITIO. 2. BECAUSE THE' 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE APPELLANT'S CONTENTION THAT THERE WAS NO ABATEMENT AND IN FURTHER HOLDING THAT 'NOWHERE IN THIS PROVISION WHICH RESTRICT THE ASSESSING OFFICER TO TAKE ACTION IN THOSE CASES WHERE ASSESSMENT HAS ALREADY BEEN COMPLETED'. 3. BECAUSE THERE BEING NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE ACTION WHICH COULD IMPINGE UPON THE CORRECTNESS OF THE RETURN' THAT HAD BEEN FILED IN THE PRE-SEARCH PERIOD (AND ACCEPTED ALSO), THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN MAKING/UPHOLDING ADDITIONS ON ACCOUNT OF THE FOLLOWING:- (RS.) A) INVESTMENT IN ACQUIRING SHARES IN MUDRIKA DISTRIBUTORS PVT. LTD., (MDPL), KOLKATA (RS.9,72,422) AND VINAYAK VYAPAR (P) LTD. (WPL) KOLKATA (RS.4,77,072) 14,49,494 B) ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS 3,30,000 4. BECAUSE IN ANY CASE ADDITION FOR SUMS AGGREGATING RS.14,49,494/- IS BASED ON A WHOLLY WRONG PREMISE, WHICH WAS NOT EVEN RELEVANT FOR THE YEAR UNDER CONSIDERATION. 5. BECAUSE THERE BEING NO MATERIAL FOUND DURING THE COURSE OF SEARCH RICH COULD LEAD TO AN INFERENCE THAT WITHDRAWALS FOR HOUSEHOLD EXPENSES WERE INADEQUATE, ADDITION OF RS.3,30,000/- COULD NOT HAVE BEEN MADE AND SUSTAINED BY THE AUTHORITIES BELOW. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 5 INDULATA GUPTA ASSESSMENT YEAR 2009-10: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. NO SECTION UNDER WHICH THE ADDITION WAS MADE. A) SHARE PURCHASE. U/S 56(VIIA) B) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) C) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO ASSESSMENT YEAR 2010-11: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. NO SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 6 ASSESSMENT YEAR 2011-12: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. NO SECTION UNDER WHICH THE ADDITION WAS MADE. A) SHARE PURCHASE. U/S 56(VIIA) B) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) C) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) D) SUNDRY CREDITOR NOT MENTIONED (SEC. 68) E) TDS MISMATCH NOT MENTIONED (SEC. 194A) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO ASSESSMENT YEAR 2012-13: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. NO SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 7 ASSESSMENT YEAR 2013-14: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. NO SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) UNSECURED LOANS NOT MENTIONED (SEC. 68) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 4. THE LIMITED ISSUE TO BE ADJUDICATED IS THAT WHETHER IN THE CASE OF UNABATED ASSESSMENTS, THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE ABSENCE OF ANY INCRIMINATING MATERIAL OR SEIZED DOCUMENTS ARE VALID OR NOT. 5. THE LD. CIT (A) HELD THAT THE SECTION 153A OF THE ACT PROVIDES THE POWER TO AO TO ASSESS/REASSESS THE CASE OF PERSON SEARCHED U/S 132(1) OF THE ACT FOR IMMEDIATE SIX PRECEDING YEARS. THE LD. CIT (A) OPINED THAT NOWHERE THE PROVISION RESTRICTS THE ASSESSING OFFICER TO TAKE ACTION IN THOSE CASES WHERE ASSESSMENT HAS ALREADY BEEN COMPLETED. 6. HAVING THE ABOVE FACTS, PERTAINING TO THE DATE OF SEARCH AND UNABATEMENT OF THE ASSESSMENTS UNDISPUTED, THE VARIOUS CASE LAWS PERTAINING TO THE SEARCH ASSESSMENTS BASED ON SEIZED MATERIAL HAVE BEEN EXAMINED. THE GIST IS AS UNDER: ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 8 HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA REPORTED IN (2017) 395 ITR 526 WHEREIN THEIR LORDSHIPS HAVE OBSERVED AND HELD AS UNDER:- '2. THE MAIN CONTENTION OF THE REVENUE IN THESE APPEALS IS THAT THE DECISION OF THE DIVISION BENCH (DB) OF THIS COURT IN COMMISSIONER OF INCOME TAX(CENTRAL- III) V. KABUL CHAWLA (2016) 380 ITR 573 (DEL) (HEREAFTER KABUL CHAWLA) AS REGARDS RECONSIDERATION, PARTICULARLY IN LIGHT OF A LATER DECISION OF A CO-ORDINATE BENCH OF THIS COURT IN SMT. DAYAWANTI GUPTA V. CIT (2016) 390 ITR 496 (DEL) (HEREAFTER DAYAWANTI GUPTA). THE REVENUE'S SUBMISSION IS THAT THE INVOCATION OF SECTION 153A OF THE ACT TO RE-OPEN CONCLUDED ASSESSMENTS OF THE A YS EARLIER TO THE YEAR OF SEARCH IS JUSTIFIED EVEN IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH QUA EACH SUCH EARLIER AY. FOR REASONS TO FOLLOW, THE COURT DOES NOT AGREE WITH THE ABOVE SUBMISSIONS OF THE REVENUE. (EMPHASIS ADDED) XXX XXX XXX XXX XXX QUESTION OF LAW 33. CONSEQUENTLY, WHILE ADMITTING THESE APPEALS, THE COURT FRAMES THE FOLLOWING QUESTIONS OF LAW: (I) WAS THE REVENUE JUSTIFIED IN INVOKING SECTION 153A OF THE ACT IN RELATION TO AYS 2000-01 TO AYS 2003-04? (II) WITH REFERENCE TO AY 2004-05, WAS THE IT AT CORRECT IN CONFIRMING THE ORDERS OF THE CIT(A) TO THE EXTENT IT DELETED THE ADDITIONS MADE BY THE AO TO THE TAXABLE INCOME OF THE ASSESSEE OF FRANCHISEE COMMISSION IN THE SUM OF RS. 88 LAKHS AND RENT PAYMENT FOR THE SUM OF RS.13.79 LAKHS? XXX XXX XXX XXX XXX ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 9 'INVOCATION OF SECTION 153A FOR AYS 2000-01 TO 2003- 04 55. ON THE LEGAL ASPECT OF INVOCATION OF SECTION 153A IN RELATION TO AYS 2000- 01 TO 2003-04, THE CENTRAL PLANK OF THE REVENUES SUBMISSION IS THE DECISION OF THIS COURT IN DAYAWANTI GUPTA (SUPRA). BEFORE BEGINNING TO EXAMINE THE SAID DECISION, IT IS NECESSARY TO REVISIT THE LEGAL LANDSCAPE IN LIGHT OF THE ELABORATE ARGUMENTS ADVANCED BY THE REVENUE. 56. SECTION 153A OF THE ACT IS TITLED 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS CONNECTED TO SECTION 132 WHICH DEALS WITH 'SEARCH AND SEIZURE'. BOTH THESE PROVISIONS, THEREFORE, HAVE TO BE READ TOGETHER. SECTION 153A IS INDEED AN EXTREMELY POTENT POWER WHICH ENABLES THE REVENUE TO RE- OPEN AT LEAST SIX YEARS OF ASSESSMENTS EARLIER TO THE YEAR OF SEARCH. IT IS NOT TO BE EXERCISED LIGHTLY. IT IS ONLY IF DURING THE COURSE OF SEARCH UNDER SECTION 132 INCRIMINATING MATERIAL JUSTIFYING THE RE-OPENING OF THE ASSESSMENTS FOR SIX PREVIOUS YEARS IS FOUND THAT THE INVOCATION OF SECTION 153A QUA EACH OF THE AYS WOULD BE JUSTIFIED. 57. THE QUESTION WHETHER UNEARTHING OF INCRIMINATING MATERIAL RELATING TO ANY ONE OF THE AYS COULD JUSTIFY THE RE-OPENING OF THE ASSESSMENT FOR ALL THE EARLIER AYS WAS CONSIDERED BOTH IN CIT V. ANIL KUMAR BHATIA (SUPRA) AND CIT V. CHETAN DAS LACHMAN DAS (SUPRA). INCIDENTALLY, BOTH THESE DECISIONS WERE DISCUSSED THREADBARE IN THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS CIT V. ANIL KUMAR BHATIA (SUPRA) WAS CONCERNED, THE COURT IN PARAGRAPH 24 OF THAT DECISION NOTED THAT 'WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE THEREFORE EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN BE INVOKED EVEN UNDER SUCH SITUATION'. THAT QUESTION WAS, THEREFORE, LEFT OPEN. AS FAR AS CIT V CHETAN DAS LACHMAN DAS (SUPRA) IS CONCERNED, IN PARA 11 OF THE DECISION IT WAS OBSERVED: ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 10 '11. SECTION 153A (1) (B) PROVIDES FOR THE ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO REPEAT, THERE IS NO CONDITION IN THIS SECTION 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 ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153A 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.' 58. IN KABUL CHAWLA (SUPRA), THE COURT DISCUSSED THE DECISION IN FILATEX INDIA LTD. V. CIT (SUPRA) AS WELL AS THE ABOVE TWO DECISIONS AND OBSERVED AS UNDER: 31. WHAT DISTINGUISHES THE DECISIONS BOTH IN CIT V. CHETAN DAS LACHMAN DAS (SUPRA), AND FILATEX INDIA LTD. V. CIT-IV(SUPRA) IN THEIR APPLICATION TO THE PRESENT CASE IS THAT IN BOTH THE SAID CASES THERE WAS SOME MATERIAL UNEARTHED DURING THE SEARCH, WHEREAS IN THE PRESENT CASE THERE ADMITTEDLY WAS NONE. SECONDLY, IT IS PLAIN FROM A CAREFUL READING OF THE SAID TWO DECISIONS THAT THEY DO NOT HOLD THAT ADDITIONS CAN BE VALIDLY MADE TO INCOME FORMING THE SUBJECT MATTER OF COMPLETED ASSESSMENTS PRIOR TO THE SEARCH EVEN IF NO INCRIMINATING MATERIAL WHATSOEVER WAS UNEARTHED DURING THE SEARCH. 32. RECENTLY BY ITS ORDER DATED 6TH JULY 2015 IN ITA NO. 369 OF 2015 (PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD.) , THIS COURT DECLINED TO FRAME A QUESTION OF LAW IN A CASE WHERE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BEING FOUND DURING THE SEARCH UNDER SECTION 132 OF THE ACT, THE REVENUE SOUGHT TO JUSTIFY INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOGUS ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 11 SHARE CAPITAL GAIN. THE ORDER OF THE CIT(A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH.' 55. IN KABUL CHAWLA (SUPRA), THE COURT REFERRED TO THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT (2013) 36 TAXMAN 523 RAJ). THE SAID PART OF THE DECISION IN KABUL CHAWLA (SUPRA) IN PARAS 33 AND 34 READS AS UNDER: 33. THE DECISION OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT (SUPRA) INVOLVED A CASE WHERE CERTAIN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS THAT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COURSE OF SEARCH. IT WAS HELD WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE TOTAL INCOME UNDER SECTION 153A OF THE ACT. THE COURT THEN EXPLAINED AS UNDER: '22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132AOF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL; AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 12 AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE.' 34. THE ARGUMENT OF THE REVENUE THAT THE AO WAS FREE TO DISTURB INCOME DE HORS THE INCRIMINATING MATERIAL WHILE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT ON THE GROUND THAT IT WAS ',NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION' WHICH WAS IN THE CONTEXT OF SEARCH AND/OR REQUISITION. THE COURT ALSO EXPLAINED THE PURPORT OF THE WORDS 'ASSESS' AND 'REASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER: '26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR REASSESS'-HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO CM IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED- ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS.' 60. IN KABUL CHAWLA (SUPRA), THE COURT ALSO TOOK NOTE OF THE DECISION OF THE BOMBAY HIGH COURT IN COMMISSIONER OF INCOME TAX V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78 (BOM) WHICH ACCEPTED DIE PLEA THAT IF NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF AN ISSUE, THEN NO ADDITIONS IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 13 ASSESSMENT UNDER SECTION 153A AND 153C OF THE ACT. THE LEGAL POSITION WAS THEREAFTER SUMMARIZED IN KABUL CHAWLA (SUPRA) AS UNDER: '37. ON A CONSPECTUS OF SECTION I53A(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 (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON- SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX A YS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. 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 ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS 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 ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 14 ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD ASSESS IN SECTION 153A 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 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL EARTHED DURING THE COURSE OF SEARCH OR REQUISITION 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.' 61. IT APPEARS THAT A NUMBER OF HIGH COURTS HAVE CONCURRED WITH THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) BEGINNING WITH THE GUJARAT HIGH COURT IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION PVT. LTD. (SUPRA). THERE, A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 7TH OCTOBER, 2009 AND AN ASSESSMENT CAME TO BE FRAMED UNDER SECTION 143(3) READ WITH SECTION 153A(1)(B) IN DETERMINING THE TOTAL INCOME OF THE ASSESSEE OF RS. 14.5 CRORES AGAINST DECLARED COME OF RS. 3.44 CRORES. THE HAT DELETED THE ADDITIONS ON THE GROUND THAT IT WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH IN RESPECT OF AYS UNDER CONSIDERATION I.E., AY 2006-07. THE GUJARAT HIGH COURT REFERRED TO THE DECISION IN KABUL CHAWLA (SUPRA), OF THE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA), JODHPUR V. ACIT (SUPRA) AND ONE EARLIER DECISION OF THE GUJARAT HIGH COURT ITSELF. IT EXPLAINED IN PARA 15 AND 16 AS UNDER: ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 15 '15. ON A PLAIN READING OF SECTION 153A OF THE ACT, IT IS EVIDENT THAT THE TRIGGER POINT FOR EXERCISE OF POWERS THEREUNDER IS A SEARCH UNDER SECTION 132 OR A REQUISITION UNDER SECTION 132A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, A MANDATE IS CAST UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 153A OF THE ACT TO THE PERSON, REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND ASSESS OR REASSESS, THE SAME. SINCE THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS EVIDENT THAT THE OBJECT OF THE SECTION IS TO BRING TO TAX THE UNDISCLOSED INCOME WHICH FOUND DURING THE COURSE OF OR PURSUANT TO THE SEARCH OR REQUISITION. HOWEVER INSTEAD OF THE EARLIER REGIME OF BLOCK ASSESSMENT WHEREBY, IT WAS ONLY THE UNDISCLOSED INCOME OF THE BLOCK PERIOD THAT WAS ASSESSED, SECTION 153A OF THE ACT SEEKS TO ASSESS THE TOTAL INCOME FOR THE ASSESSMENT YEAR, WHICH IS CLEAR THE FIRST PROVISO THERETO WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. THE SECOND PROVISO MAKES THE INTENTION OF THE LEGISLATURE CLEAR AS THE SAME PROVIDES THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO THE SIX ASSESSMENT YEARS REFERRED TO IN THE SUB-SECTION PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. SUB- SECTION (2) OF SECTION 153A OF THE ACT PROVIDES THAT IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) IS ANNULLED IN APPEAL OR ANY OTHER LEGAL PROVISION, THEN THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH' HAD ABATED UNDER THE SECOND PROVISO WOULD STAND REVIVED. THE PROVISO THERETO SAYS THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT IF SUCH ORDER OF ANNULMENT IS SET ASIDE. THUS, ANY PROCEEDING OF ASSESSMENT OR REASSESSMENT FALLING WITHIN THE SIX ASSESSMENT YEARS PRIOR TO THE SEARCH OR REQUISITION STANDS ABATED AND THE TOTAL INCOME OF THE ASSESSEE IS ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 16 REQUIRED TO BE DETERMINED UNDER SECTION 153A OF THE ACT. SIMILARLY, SUB- SECTION (2) PROVIDES FOR REVIVAL OF ANY ASSESSMENT OR REASSESSMENT WHICH STOOD ABATED, IF ANY PROCEEDING OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SECTION 153 A OF THE ACT IS ANNULLED IN APPEAL OR ANY OTHER PROCEEDING. 16. SECTION 153A HEARS 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 OR 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 CONNECTED WITH SOMETHING ROUND 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 EASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) V. ASST. CIT (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 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 ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 17 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. XXXXX XXXXXX XXXXXX 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTENDED THAT IF ANY INCRIMINATING MATERIAL IS 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 AN 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, 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) V. ASST. CIT (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 CIT V. 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.' ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 18 SUBSEQUENTLY, IN PRINCIPAL COMMISSIONER OF INCOME TAX- 1 V. DEVANGI HAS RUPA (SUPRA), ANOTHER BENCH OF THE GUJARAT HIGH COURT REITERATED THE ABOVE LE GAL POSITION FOLLOWING ITS EARLIER DECISION IN PRINCIPAL COMMISSIONER OF INCOME HEX V. SAUMYA CONSTRUCTION P. LTD. (SUPRA) AND OF THIS COURT IN KABUL CHAWLA SUPRA). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN CIT V. IBC KNOWLEDGE PARK P. LTD. (SUPRA) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA SUPRA) AND HELD THAT THERE HAD TO HE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN LICH ADDITIONS WERE SOUGHT TO HE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. KM CALCUTTA HIGH COURT IN CIT-2 V. SALASAR STOCK BROKING LTD. (SUPRA), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). IN CIT V. GURINDER SINGH BAWA (SUPRA), THE BOMBAY HIGH COURT HELD THAT: '6...ONCE AN ASSESSMENT HAS ATTAINED FINALITY FOR A PARTICULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS.' 63. EVEN THIS COURT HAS IN CIT V MAHESH KUMAR GUPTA (SUPRA) AND THE PR. COMMISSIONER OF INCOME TAX-9 V. RAM AVTAR VERMA (SUPRA) FOLLOWED THE DECISION IN KABUL CHAWLA (SUPRA). THE DECISION OF THIS COURT IN PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. (SUPRA) WHICH WAS REFERRED TO IN KABUL CHAWLA (SUPRA) H AS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7TH DECEMBER, 2015. XXXX XXXX XXXX XXXX XXXX CONCLUSION 72. TO CONCLUDE: ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 19 (I) QUESTION (I) IS ANSWERED IN THE NEGATIVE I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IT IS HELD THAT IN THE FACTS AND CIRCUMSTANCES, THE REVENUE WAS NOT JUSTIFIED IN INVOKING SECTION I53A OF THE ACT AGAINST THE ASSESSEE IN RELATION TO AYS 2000-01 TO AYS 2003-04? I) QUESTION (II) IS ANSWERED IN THE AFFIRMATIVE I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IT IS HELD THAT WITH REFERENCE TO AY 2004-05, THE ITAT WAS CORRECT IN CONFIRMING THE ORDERS OF THE CIT(A) TO THE EXTENT IT DELETED THE ADDITIONS MADE BY THE AO TO THE TAXABLE INCOME OF THE ASSESSEE OF FRANCHISE COMMISSION IN THE SUM OF RS. 88 LAKHS AND REAL PAYMENT FOR THE SUM OF RS. 13.79 LAKHS. 73. THE APPEALS ARE ACCORDINGLY DISMISSED BUT IN THE CIRCUMSTANCES, NO ORDERS AS TO COSTS. 7. ALL THE CASE LAWS LAID DOWN THE RATIO THAT THE UNABATED ASSESSMENT AND COMPLETED ASSESSMENT CANNOT BE DISTURBED DEHORS THE INCRIMINATING MATERIAL WHILE MAKING THE ASSESSMENT U/S 153A OF THE ACT. 8. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY VARIOUS COURTS AS MENTIONED ABOVE, WE HEREBY HOLD THAT THE ASSESSMENTS COMPLETED FOR THE UNABATED YEARS CANNOT BE HELD TO BE VALID IN THE ABSENCE OF ANY SEIZED MATERIAL. HENCE, THE ADDITIONS MADE FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 ARE LIABLE TO BE DELETED. ASSESSMENT YEAR 2014-15: DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 153A. 31.07.2014 DUE DATE OF FILING OF RETURN 31.07.2014 ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 20 DUE DATE OF ISSUE OF NOTICE U/S 143(2) 31.09.2015 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) UNSECURED LOANS NOT MENTIONED (SEC. 68) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 9. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITIONS ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND UNSECURED LOANS. THE LD. CIT (A) HAS CONFIRMED ADDITION OF RS.4,16,142/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. THE LD. CIT (A) HELD THAT THE AO HAS SPECIFICALLY EXAMINED THIS ISSUE KEEPING IN VIEW ALL ASPECTS AND CIRCUMSTANCES OF A PERSON OF STATUS OF THE ASSESSEE. 10. HAVING HEARD THE ARGUMENTS, WE HAVE GONE THROUGH THE ASSESSMENT ORDER AND FIND THAT THE ADDITION HAS BEEN MADE BY THE AO ON ACCOUNT OF SALARY OF DRIVERS, EXPENDITURE ON FESTIVALS, PETROL-DIESEL EXPENSES ETC. THE AO HAS MADE THIS ADDITION ON ESTIMATE BASIS WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD. FUNDAMENTALLY, WE ARE OF THE FIRM OPINION THAT THE ADDITION ON ACCOUNT OF LOW WITHDRAWALS CANNOT BE MADE IN THE HANDS OF THE ASSESSEE AS THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD REGARDING INCURRING OF SUCH EXPENSES. WE NOTE THAT NO EVIDENCE ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 21 WAS BROUGHT ON RECORD BY THE REVENUE WHICH MAY PROVE THAT THE ASSESSEE HAS INCURRED EXPENSES ON THE HOUSEHOLD DRAWING MUCH MORE THAN WHAT HAS BEEN SHOWN BY HER FAMILY MEMBERS. THE HOUSEHOLD DRAWING HAS MERELY BEEN ESTIMATED BY THE AO WITHOUT POINTING OUT ANY SPECIFIC EXPENDITURE BEING INCURRED BY THE ASSESSEE. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 69C OF THE INCOME TAX ACT AND WE NOTE THAT THERE MUST BE EVIDENCE ON RECORD WHICH MAY PROVE THAT THE ASSESSEE HAD INCURRED EXPENSES MUCH MORE THAN WHAT HAS BEEN SHOWN BY THE FAMILY MEMBERS. IT IS FOR THE REVENUE TO PROVE THAT THE EXPENSES HAVE INDEED BEEN INCURRED AND THEN THE ONUS SHIFTS TO THE ASSESSEE TO PROVE THAT THE ASSESSEE HAS ENOUGH SOURCES TO INCUR SUCH EXPENSES OR TO PROVE THAT SUCH EXPENSES HAVE NOT BEEN INCURRED. OUR AFORESAID VIEW IS DULY SUPPORTED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DAULAT RAM RAWATMALL 87 ITR 349. HENCE, WE HEREBY DELETE THE ADDITION MADE ON ACCOUNT OF HOUSEHOLD WITHDRAWALS. ASSESSMENT YEAR 2015-16: (SEARCH YEAR) DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 142(1). 16.11.2015 DUE DATE OF FILING OF RETURN 15.02.2016 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) UNSECURED LOANS NOT MENTIONED (SEC. 68) ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 22 WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 11. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY. THE LD. CIT (A) HAS CONFIRMED ADDITION MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS AND ALSO CONFIRMED ADDITION OF RS.10,50,000/- OUT OF LOAN OF RS.12,00,000/- RECEIVED FROM ONE ENTITY NAMELY, FAIR PLAN AGENCY (FPA) AS THE CREDITWORTHINESS OF THE LENDER REMAINED UNSUBSTANTIATED. 12. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, THE RATIO LAID DOWN WHILE ADJUDICATING THE SIMILAR ISSUE FOR THE ASSESSMENT YEAR 2014-15 APPLIES. THE ADDITION IS DIRECTED TO BE DELETED. 13. WITH REGARD TO THE LOAN FROM FPA, WE FIND THAT THE LENDER HAS GOT AN AMOUNT OF RS.12.24 CRORES AS SHARE CAPITAL WHICH CAN BE FAIRLY ASSUMED TO BE SUFFICIENT TO LEND AN AMOUNT OF RS.12,00,000/- TO THE ASSESSEE. THE ASSESSEE HAS SUBMITTED ALL THE RELEVANT DOCUMENTS TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE LENDING PARTY. THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT THE SHARE CAPITAL OF THE FPA IS SUSPICIOUS OR NOT GENUINE. HENCE, THE LD. CIT (A)S DECISION TO HOLD THAT THE CREDIBILITY OF THE ASSESSEE IS DOUBTFUL CANNOT BE UPHELD. THE ADDITION MADE BY THE AO IS DIRECTED TO BE DELETED. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 23 REENA GUPTA ASSESSMENT YEAR 2009-10 TO 2013-14: 14. FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA (SUPRA) FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 SHALL APPLY MUTATIS MUTANDIS. ASSESSMENT YEAR 2014-15: DATE OF SEARCH 25.06.2014 DUE OF FILING OF RETURN U/S 153A 09.09.2015 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) EXEMPT INCOME NOT MENTIONED D) SUNDRY CREDITORS NOT MENTIONED WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 15. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND EXEMPT INCOME. THE LD. CIT (A) HAS CONFIRMED ADDITION OF RS.4,35,480/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS AND ALSO CONFIRMED ADDITION OF RS.80,000/- ON ACCOUNT OF SUNDRY CREDITORS. 16. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, WE HEREBY HOLD THAT THE RATIO LAID DOWN IN THE CASE ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 24 OF INDULATA GUPTA IN ITA NO.135/LKW/2018 FOR THE ASSESSMENT YEAR 2014-15 SHALL APPLY. 17. REGARDING THE SUNDRY CREDITORS (INFACT LOANS) NAMELY, SC GUPTA FOR RS.20,000/-, PUSHPA GUPRA FOR RS.20,000/-, SHASHI GUPTA FOR RS.20,000/-, WE FIND THAT THE ASSESSEE HAS NOT SUBMITTED ANY DETAIL BEFORE THE AO AND LD. CIT (A). HENCE, WE DECLINE TO INTERFERE WITH THE ORDER OF THE LD. CIT (A) ON THIS ISSUE. IN THE RESULT, THE APPEAL OF THE ASSESSE FOR THIS YEAR IS PARTLY ALLOWED. ASSESSMENT YEAR 2015-16: (SEARCH YEAR) DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 142(1). 16.11.2015 DUE DATE OF FILING OF RETURN 20.02.2016 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 18. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND HAS CONFIRMED ADDITION OF RS.4,22,448/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. 19. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, WE HEREBY HOLD THAT THE RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA IN ITA NO.135/LKW/2018 FOR THE ASSESSMENT YEAR 2014-15 SHALL APPLY. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 25 KALPANA GUPTA ASSESSMENT YEAR 2009-10 TO 2013-14 20. FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA (SUPRA) FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 SHALL APPLY MUTATIS MUTANDIS. ASSESSMENT YEAR 2014-15: DATE OF SEARCH 25.06.2014 DUE OF FILING OF RETURN U/S 153A 09.09.2015 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) EXEMPT INCOME NOT MENTIONED WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 21. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND EXEMPT INCOME. THE LD. CIT (A) HAS CONFIRMED ADDITION OF RS.4,33,206/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. 22. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, WE HEREBY HOLD THAT THE RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA IN ITA NO.135/LKW/2018 FOR THE ASSESSMENT YEAR 2014-15 SHALL APPLY. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 26 ASSESSMENT YEAR 2015-16: (SEARCH YEAR) DATE OF SEARCH. 25.06.2014 DATE OF ISSUE OF NOTICE U/S 142(1). 16.11.2015 DUE DATE OF FILING OF RETURN 04.07.2016 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) UNSECURED LOANS NOT MENTIONED (SEC. 68) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 23. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND HAS CONFIRMED ADDITION OF RS.3,69,292/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. 24. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, WE HEREBY HOLD THAT THE RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA IN ITA NO.135/LKW/2018 FOR THE ASSESSMENT YEAR 2014-15 SHALL APPLY. 25. THE LD. CIT (A) HAS CONFIRMED THE ADDITION OF RS.11,90,400/- OUT OF LOAN OF RS. 27,22,857/- RECEIVED FROM ONE ENTITY NAMELY, FAIR PLAN AGENCY (FPA) AS THE CREDITWORTHINESS OF THE LENDER REMAINED UNSUBSTANTIATED. ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 27 26. WITH REGARD TO THE LOAN FROM FPA, WE FIND THAT THE LENDER HAS GOT AN AMOUNT OF RS.12.24 CRORES AS SHARE CAPITAL WHICH CAN BE FAIRLY ASSUMED TO BE SUFFICIENT TO LEND AN AMOUNT OF RS.11,90,400/- TO THE ASSESSEE. THE ASSESSEE HAS SUBMITTED ALL THE RELEVANT DOCUMENTS TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE LENDING PARTY. THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT THE SHARE CAPITAL OF THE FPA IS SUSPICIOUS OR NOT GENUINE. HENCE, THE LD. CIT (A)S DECISION TO HOLD THAT THE CREDITABILITY OF THE ASSESSEE IS DOUBTFUL CANNOT BE UPHELD. THE ADDITION MADE BY THE AO IS DIRECTED TO BE DELETED. ANAND KUMAR GUPTA ASSESSMENT YEAR 2009-10 TO 2013-14 27. FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA FOR THE ASSESSMENT YEARS 2009-10 TO 2013-14 SHALL APPLY MUTATIS MUTANDIS. ASSESSMENT YEAR 2014-15: DATE OF SEARCH 25.06.2014 DUE OF FILING OF RETURN U/S 153A 09.09.2015 WHETHER ASSESSMENT FOR THE YEAR IS PENDING/ABATED. YES SECTION UNDER WHICH THE ADDITION WAS MADE. A) HOUSEHOLD WITHDRAWALS. NOT MENTIONED(SEC. 69C) B) LOSS FROM HOUSE PROPERTY. NOT MENTIONED (SEC. 24) C) EXEMPT INCOME NOT MENTIONED ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 28 D) UNSECURED LOANS NOT MENTIONED (SEC. 68) WHETHER THE ADDITIONS WERE BASED ANY SEIZED MATERIAL. NO 28. OUT OF THE ABOVE ADDITIONS, THE LD. CIT (A) HAS DELETED THE ADDITION ON ACCOUNT OF LOSS FROM HOUSE PROPERTY AND EXEMPT INCOME. THE LD. CIT (A) HAS CONFIRMED ADDITION OF RS.4,35,480/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. 29. REGARDING THE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, WE HEREBY HOLD THAT THE RATIO LAID DOWN IN THE CASE OF INDULATA GUPTA IN ITA NO.135/LKW/2018 FOR THE ASSESSMENT YEAR 2014-15 SHALL APPLY. 30. WITH REGARD TO THE UNSECURED LOANS OF RS.5,77,929/-, WE FIND THAT THE ASSESSEE HAS RECEIVED LOANS FROM A.K. GUPTA (HUF) FOR WHICH THE ASSESSEE IS KARTA, SH. RAGHUNATH GUPTA, DCPL, ILPL AND THE CONFIRMATIONS HAVE BEEN DULY FILED BEFORE THE AO. ALL THE LOAN PARTIES ARE ASSESSED WITH THE SAME ASSESSING OFFICER. THERE WAS NO IMPEDIMENT FOR THE ASSESSING OFFICER TO INQUIRE FROM HIS OWN RECORD TO EXAMINE THE GENUINENESS OF THE TRANSACTIONS. WE ALSO FIND THAT THE LD. CIT (A) HAS DENIED THE ADMISSION OF ADDITIONAL EVIDENCES ON TECHNICAL GROUND OF NOT FILING THE SAME IN THE PROPER FORMAT. HAVING HEARD THE ARGUMENTS OF BOTH THE PARTIES, WE HOLD THAT THE INTEREST OF JUSTICE WOULD BE WELL SERVED IF THE MATTER IS REMANDED BACK TO THE FILE OF THE LD. CIT (A) FOR THE LIMITED PURPOSE OF ADMITTING THE ADDITIONAL EVIDENCES WITH REGARD TO THE LOAN OF RS.5,77,929/- AND TO PASS A SPEAKING ORDER AFTER DUE ITA NOS. 130 & 136/LKW/2018 (INDULATA GUPTA) ITA NOS. 137 & 143/LKW/2018 (KALPANA GUPTA) ITA NOS. 293 & 299/LKW/2018 (ANAND KUMAR GUPTA) ITA NOS. 44 & 50/LKW/2018 (REENA GUPTA) 29 VERIFICATION IN ACCORDANCE WITH THE PROVISIONS OF INCOME TAX ACT, 1961. 31. SINCE, THE MATTERS HAVE BEEN ADJUDICATED ON THE ISSUE OF ABATEMENT AND RELEVANCE OF SEIZED MATERIAL, ANY ADJUDICATION ON THE OTHER TECHNICAL GROUNDS INCLUDING THE ONE RAISED IN THE ADDITIONAL GROUNDS BY THE ASSESSEE WOULD BE ONLY ACADEMIC IN NATURE AND HENCE NOT RESORTED TO. 32. THE ORDER IS BEING PRONOUNCED KEEPING IN VIEW THE LIMITATION OF TIME AS HELD IN THE CASE OF DCIT VS JSW LTD. IN ITA NO. 6264/MUM/2018 VIDE ORDER DATED 14.05.2020. 33. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT(SS)A NO. 49/LKW/2018 IS TREATED AS PARTLY ALLOWED AND ALL OTHER APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/08/2020. SD/- SD/- (A. D. JAIN) (DR. B. R. R. KUMAR) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 03/08/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR