DCIT, CC-3(4), Kolkata, Kolkata V. M/s. Mukti Projects Pvt. Ltd., Kolkata

ITSSA 17/KOL/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9693 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM CIT LD
• Assessee Lawyers: A K TULSYAN FCA LD
• Keywords: Unexplained cash credit; Search and seizure; Source of fund; Block assessment
• Section: 143(3); 142(1); 153A; 133(6); 131; 68; 132; 11

Judgement Text

IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B , KOLKATA (BEFORE SHRI S. S. GODARA , J.M. & DR.A.L.SAINI, A.M.) IT (SS) NO S . 17, 18 & 19/ KOL/2017 ASSTT. YEAR S : 20 09 10, 11 12 & 1 0 11 D .C.I.T, CIR 10 ( 1), KOLKATA VS M/S. MUKTI PROJECTS PVT. LTD. PAN: A AAC H6312B (APPELLANT) (RESPONDENT) APPELLANT/ D EPARTMENT BY : SHRI RADHEY SHYAM, CIT, LD.SR.DR RESPONDENT/ ASSESSEE BY : SHRI A .K. TULSYAN,FCA, LD .AR DATE OF HE ARING : 1 9 11 201 8 DATE OF PRONOUNCEMENT: 14.12.2018 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED THREE APPEAL S FILED BY THE R EVENUE , PERTAINING TO ASSESSMENT YEAR S 2009 10, 2011 12 AND 201 0 11 , ARE DIRECTED AGAINST THE SEPARATE ORDER S PASSED BY THE CO MMISSIONER OF INCOME TAX (APPEALS) 2 1 ,KOLKATA , WHICH IN TURN ARISE OUT OF ORDER S PASSED BY THE ASSESSING OFFICER UNDER SECTION 153A/ 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT ), DATED 3 1 03 2016 . 2. SINCE, THE ISSUES INVOLVED IN ALL THE APPE ALS ARE COMMON AND IDENTICAL; THEREFORE, THESE APPEALS HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE GROUNDS AS WELL AS THE FACTS NARRATED IN IT(SS) NO.18/KOL/2017, FOR ASSESSMENT YEAR 2011 12, HAVE BEEN TAKEN INTO CONSIDERATION FOR DECIDING THE ABOVE APPEALS EN MASSE. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 2 3 . GRIEVANCES RAISED BY THE REVENUE ( IN LEAD CASE) IN IT(SS) NO.18/KOL/2017 , FOR THE A.Y . 2011 12 , ARE AS FOLLOW S : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) IS NOT JUSTIFIED TO HOLD THAT THE ADDITIONS MADE IN THE ASSESSMENT ORDER ARE NOT BASED ON ANY INCRIMINATING DOCUMENTS OR PAPERS WITHOUT EXAMINING THE RECORDS TO FIND OUT EXISTENCE OF SEIZED MATERIAL IN THE CASE AND IN MERELY TAKING THE DECISION ON THE BASIS OF SUBMISSION OF THE ASSESSEE. 2. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN ADJUDICATING APPEAL WITHOUT GOING INTO THE OTHER GROUNDS ON MERIT. 3. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING ADDITION OF RS. 1,30,00,000/ - MADE BY THE AO U/S 68 OF THE INCOME TAX ACT, 1961, ON ACCOUNT OF SHARE APPLICATION MONEY, WITHOUT CALLING FOR INDEPENDENT ENQUIRY REGARDI NG THE EXISTENCE OF SEIZED MATERIAL AND THE MERIT OF THE CASE. 4. IN ASSESSMENT YEAR 2010 11, THE REVENUE RAISED THE ADDITION AL GROUND, WHICH READS AS FOLLOWS: 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFI ED IN DELETING ADDITION OF RS.4,78,038/ - MADE 5. THE FACTS OF THE CASE WHICH CAN BE STATED QUITE SHORTLY ARE AS FOLLOWS: IN THE ASSESSEE`S CASE UNDER CONSIDERATION, A SEARCH & SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT, WAS CONDUCTED BY THE D EPARTMENT IN MUKTI GROUP OF CASES ON 13.11.2013 & 09.01.2014 WHEREIN THE OFFICE PREMISES OF THE ASSESSEECOMPANY , AT 4, CLIVE ROW, MUKTI CHAMBERS, KOLKATA 700001 , WAS ALSO COVERED . SUBSEQUENTLY, NOTICE U / S 153A WAS ISSUED BY ASSESSING OFFICER ON 16.06.2015 AND SERVED UPON THE ASSESSEE ON 18.06.2015 , SEEKING RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011 12. 6. IN RESPONSE TO THE SAID NOTICE U/S 153A , THE ASSESSEE SUBMITTED BEFORE THE LD AO, VIDE LETTER DATED 14.07.2015 , THAT THE RETURN OF INCOME ALREADY F ILED BY THE ASSESSEE COMPANY ON 13.07.2015 , DECLARING A TOTAL INCOME TO THE TUNE OF RS.17,03,550 / SHOULD BE TREATED AS RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT . SUBSEQUENTLY, IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 3 NOTICE U / S 143(2) WAS ISSUED ON 07.09.2015 AND SERVED UPON THE ASSESSEE ON 18.09.2015 AND NOTICE U / S 142(1) WAS ISSUED ON 1L.09.2015 ALONG WITH THE QUESTIONNAIRES AND SERVED UPON THE ASSESS E E COMPANY. 7. IN RESPONSE TO THE SAID NOTICES, THE ASSESSEE APPEARED BEFORE THE AO AND FILED DETAILS IN S UPPORT OF THE RETURN OF INCOME, WHICH WERE EXAMINED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE COMPANY HAD RAISED FRESH SHARE CAPITAL AMOUNTING TO RS. 1 , 30,00,000 / . ON PERUSAL OF THE DETAILS OF SHARE APPLICATION MONEY RECEIVED AS FU RNISHED BY THE ASSESSEE, IT WAS FOUND THAT, A TOTAL TWENTY FOUR INVESTOR COMPANIES HAVE INVESTED IN THE SHARE CAPITAL OF THE ASSESSEE COMPANY IN CL UDING FOUR COMPANIES HAVING ITS REGISTERED ADDRESS OUTSIDE KOLKATA. THE DETAILS OF THE SAID FOUR COMPANIES ARE GIVEN AS UNDER FOR READY REFERENCE : SI.NO. NAME AND ADDRESS OF THE INVESTOR COMPANY PAN AMOUNT OF SHARE APPLICATION MONEY RECEIVED (IN RS.) 1 ISPAT SHEETS LTD . HOUSE , NO.36,S.C.ROAD,BYLANE 3,ATHGAON PUKURIPAR, GUWAHATI 781001 AAACI4429E 30,00,000/ 2 N.E.ELECTRONICS LTD. HOUSE NO.36,S.C.ROAD BYLANE 3, ATHGAON PUKURIPAR, GUWAHATI 781001 AAACN6695B 55,00,000/ 3 NOVELTY TRADERS LTD. 205, HARIBOL ROY MARKET , 2 ND FLOOR, A.T.R OAD (NEAR SARAF B UILDING), GUWAHATI 781001 AABCN8817E 30,00,000 / 4 ALBATROSS SHARE REGISTRY PVT. LTD. 4F2, COURT CHAMBERS, 35, NEW MARINE LINES, MUMBAI 20 AAACA9004H 15,00,000/ TOTAL: RS.1,30,00 ,00 0/ INITIALLY, IN THE CASE OF THE ABOVE MENTIONED COMPANIES, REQUEST FOR INFORMATION REGARDING THE TRANSACTIONS MADE BY THEM WITH THE ASSESSEE WERE CALLED FOR U / S 133(6) OF THE INCOME TAX ACT 19 61 , BY LETTER DATED 21.12.2015 , TO WHICH COMPLIANCES WERE MADE THROUGH RETURN OF P OST. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 4 8 . SUBSEQUENT TO THIS, COMMISSION UNDER SECTION 131(L)(D) OF THE I . T. ACT, 1961 WAS ISSUED TO THE ADDL. DIT(INV), UNIT 1, GUWAHATI ON 15.02.2016 REQUESTING FOR EXAMINING THE THREE (3) GUWAHATI BASED PARTIES IN ORDER TO PROVE THE GENUINENESS OF THE TRANSACTION ENTERED WITH THE ASSESSEE. FURTHER, COMMISSION U / S 131(1)(D) OF THE I . T. ACT, 1961 WAS ISSUED TO THE DDIT(INV), UNIT 1(2), MUMBAI ON 01.03.2016 FOR EXAMINING OF THE MUMBAI BASED PARTY VIZ. ALBATROSS SHARE REGISTRY PVT. LTD. LATER, A REPORT O F THE COMMISSION WAS SENT, WHICH HA D BEEN RECEIVED FROM THE DDIT(INV), UNIT 1(L),GUWAHATI ON 02.03.2016 , WHEREIN IT HA D BEEN FOUND THAT, NO OFFICE OR BUSINESS ACTIVITIES OF THE AFORESAID COMPANIES WAS OPERATING FROM THE SAID PREMISES. THE PERSON RECEIVING THE NOTICE ON BEHALF OF THE COMPANIES STATED THAT THEY ONLY RECEIVED LETTERS ON BEHALF OF THE SAID COMPANIES AND FORWARD IT TO THE PLACE WHERE THE KEY PERSONS OF THE COMPANIES RESIDES. THE REPORT OF THE INSPECTOR WAS ALSO ENCLOSED REFLECTING THE SAME. THE SUMMONS ISSUED WERE RECEIVED BUT, NO COMPLIANCE REGARDING THE SAME HA D BEEN MADE. SIMILARLY, DDIT (INV) , UNIT 1(2), MUMBAI ALSO SENT A REPORT DATED 21.03.2016 , RECEIVED ON 28.03.2016 STATING THAT, A SUMMON U / S 131 OF THE ACT, DATED 02.03.2016 WAS ISSUED TO M / S ALBATROSS SHARE REGISTRY PVT. LTD CALLING FOR CERTAIN DETAILS. BUT NO COMPLIANCE WAS MADE REGARDING THE SAME EVEN AFTER LAPSE OF THE STIPULATED TIME PROVIDED IN THE SUMMON. 9 . THE ASSESSEE WAS CONFRONTED WITH THE ABOVE FINDINGS AND ASKED TO SHOW C AUSE AS TO WHY ADVERSE VIEW SHOULD NOT BE TAKEN REGARDING THE FRESH SHARE CAPITAL RAISED FROM THE ABOVE MENTIONED FOUR PARTIES (3 GUWAHATI BASED AND 1 MUMBAI BASED PARTY). IN RESPONSE, THE ASSESSEE SUBMITTED THAT THE ADDITION IN THE CASE OF SEARCH ASSESSME NT HAS TO BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. THE DEPARTMENT CANNOT DO A FRESH AS SESSMENT THAT HAD ALREADY BEEN COMPLETED UNDER THE ACT , WITHOUT HAVING ANY I NCRIMINATING MATERIAL ON RECORD. THE ISSUES FORMING PART OF THE ITEMS OF THE REGUL AR ASS ESSMENT , WAS BEYOND THE SCOPE OF THE SEARCH ASS ESSMENT U / S 153A / 153C; OF THE ACT AND T HE AO HAD NO JURISDICTION TO MAKE ADDITIONS OTHERWISE THAN ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. BESIDES, T HE ASSESSEE HAD FILED THE RETURN OF ALLOTMENT TO REGISTRAR OF COMPANIES. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 5 THE COPY OF FORM NO. 2 FILED WITH ROC HAS ALREADY BEEN SUBMITTED BEFORE ASSESSING OFFICER . ALL THE SHAREHOLDERS ARE BODY CORPORATE. THEY ARE ASSESSED TO INCOME TAX FOR PAST SEVERAL YEARS. ALL THE SHARE AP PLICATION MONEY HA D BEEN RECEIVED THROUGH BANKING CHANNELS. THE ASSESSEE ALSO SUBMITTED BEFORE THE AO THAT THE BASIC INGREDIENTS I. E. IDENTITY OF THE SHAREHOLDERS, GENUINENESS OF THE TRANSACTIONS AND CREDITWORTHINESS OF THE SHAREHOLDERS HAVE BEEN PROVED , THEREFORE , NO ADVERSE VIEW SHOULD BE TAKEN AGAINST THE ASSESSEE. 10. THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE AND NOTICED THAT THERE WERE SEVERAL CONTRADICTIONS WITH THE FACTS AVAILABLE ON RECORD . THE ASSESSING OFFICER OBSERVED THAT T HE REPORT RECEIVED FROM THE DDIT(INV), GUWAHATI , ( RECEIVED ON 02.03.2016 ), DOES NOT MENTION ABOUT ANY COMPLIANCES BEING MADE BY THE GUWAHATI BASED INVESTOR COMPANIES AS ALLEGED BY THE ASSESSEE. FURTHER, NO SUBSEQUENT REPORT STATING ANY COMPLIANCES MADE, WAS ALSO RECEIVED FROM THE DDIT(INV), GUWAHATI . THE ASSESSEE ON ITS OWN FURNISHED SOME DETAILS WITH A SPEED POST ACKNOWLEDGEMENT CITING THAT REQUIRED SUBMISSIONS WERE SENT BY POST TO THE DDIT(INV), GUWAHATI , IN RESPONSE TO THE SUMMONS ISSUED. BUT, THE FAC T IS THAT SUMMONS WERE ISSUED FOR PHYSICAL APPEARANCE ALONG WITH CERTAIN DETAILED INFORMATIONS. MERELY SENDING OF THE DETAILS BY POST AS STATED BY THE ASSESSEE DOES NOT AMOUNT TO COMPLIANCE. SIMILARLY , IN CASE OF M/ S ALBATROSS SHARE REGISTRY PVT. LTD, REP ORT RECEIVED FROM THE DDIT(INV) UNIT 1(2), MUMBAI , DOES NOT MENTION ABOUT ANY COMPLIANCES BEING MADE BY THE SAID INVESTOR COMPANY. THE ASSESSEE'S CLAIM OF FURNISHING OF DETAILS AS CALLED FOR U/S 133(6) NOTICE , BY POST COULD NOT BE THE SOLE CRITERIA FOR JU DGING THE GENUINENESS OF THE TRANSACTIONS INVOLVED, AS THE SAME REMAINED TO BE REINFORCED WITH COMPLIANCE TO THE SUMMONS ISSUED FOR PHYSICAL APPEARANCE WITH CERTAIN OTHER DETAILS. THEREFORE, ASSESSING OFFICER CONCLUDED THAT, THE THREE PARAMETERS FOR JUDGIN G ANY CREDIT IN THE BOOKS OF THE ASSESSEE VIZ. IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIONS AS CITED IN VARIOUS JUDICIAL PRONOUNCEMENTS REMAINS TO BE PROVED AND THE ASSESSEE HAD FAILED TO DISCHARGE ITS ONUS OF PROVING THE GENUIN ENESS OF THE TRANSACTION S . THEREFORE , THE AMOUNT OF SHARE APPLICATION MONEY RECEIVED FROM THE ABOVE CITED FOUR INVESTOR COMPANIES AMOUNTING TO RS. 1,30,00,000 / WA S TREATED AS UNEXPLAINED CASH CREDIT AND ADDED BACK TO IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 6 THE TOTAL INCOME OF THE ASSESSEE BY INVOKING T HE PROVISIONS OF SECTION 68 OF THE IN C OME TAX ACT, 1961. 11. AGGRIEVED BY THE STAND SO TAKEN BY THE AO , THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO HAS DELETED THE ADDITION . THE LD CIT (A) NOTED THAT AO WHILE EXERCISING THE POWE RS CONFERRED WITHIN HIM U/S 153A OF THE ACT HAS FAILED TO APPRECIATE THE LEGAL POSITION THAT THE ADDITION IN THE CASE OF SEARCH ASSESSMENTS HAS TO BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. THE LD. AO CANNOT START DOING A FRESH ASSESSMENT THAT HA D ALREADY BEEN COMPLETED EITHER U/S 143(3) OR U/S 143(1) UNDER THE ACT WITH OUT HAVING ANY INCRIMINATING MATERIAL ON RECORD. IN PROCEEDINGS U/S 153A/153C TO REOPEN THE COMPLETED ASSESSMENT IS RESTRICTED ONLY TO THE EXTENT OF INCRIMINATING DOCUMENTS , IF ANY , ONLY. THE LD CIT(A) ALSO NOTED THAT ISSUES FORMING PART OF THE ITEMS OF THE REGULAR ASSESSMENT, IS BEYOND THE SCOPE OF THE SEARCH ASSESSMENT U/S.153A/153C OF THE ACT AND THE AO HAS NO JURISDICTION TO MAKE ADDITIONS OTHERWISE THAN ON THE BASIS OF THE INCRI MINATING MATERIAL FOUND IN THE COURSE OF SEARCH. THEREFORE, LD CIT(A) DELETED THE ADDITION OF RS. 1,30,00,000/ MADE BY ASSESSING OFFICER . 12. AGGRIEVED BY THE ORDER OF LD CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 13. THE LD DR FOR THE REVENUE SUBMITTE D BEFORE US THAT ASSESSING OFFICER IS STATUTORILY REQUIRED TO MAKE ASSESSMENT/REASSESSMENT OF TOTAL INCOME RELATING TO EARLIER SIX YEARS AND ADDITION CAN BE MADE FOR ANY ESCAPED INCOME. SCOPE OF ASSESSMENT/REASSESSMENT U/S 153A OF THE ACT, IS NOT TO BE RES TRICTED TO ASSESS OR REASSESS UNDISCLOSED INCOME BUT TO ASSESS OR REASSESS TOTAL INCOME. ASSESSMENT OF TOTAL INCOME MAY BE BASED UPON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR OTHERWISE AND EXTENDS TO ANY INCOME WHICH HAS ESCAPED ASSESSME NT. I T IS A SETTLED POSITION OF LAW THAT EVEN IF MATERIAL IS FOUND RELATING TO A SPECIFIC YEAR, SECTION 153A IS TRIGGERED AND ASSESSMENT/REASSESSMENT OF TOTAL IS REQUIRED TO BE MADE FOR ALL THE EARLIER SIX ASSESSMENT YEARS U/S.153A OF THE ACT . IN A CASE WH ERE NO INCRIMINATING MATERIAL RELATING TO ANY YEAR IS FOUND DURING SEARCH, THE PROVISION IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 7 OF SECTION 153A CAN BE INVOKED AND ASSESSMENT/REASSESSMENT OF TOTAL INCOME CAN BE MADE RELATING TO THE EARLIER SIX YEARS . THE LD DR POINTED OUT THAT A NO THER SIGNIFICAN T FEATURE OF SECTION 153A, IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID SIX YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPL E ASSESSMENTS. UNDER SECTION 153 A, HOWEVER, TH E ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YE ARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND UNDISCLOSED I NCOME WOULD BE BROUGHT TO TAX. NATURE OF ASSESSMENT OR REASSE SSMENT U/S 153A SHALL BE GOVERNED BY THE NORMAL PROVISIONS OF THE ACT. THE LD DR POINTED OUT THAT THE S OLE FACT THAT SHARE APPLICANTS HAD ESTABLISHED THEIR IDENTITY BY FILING CONFIRMATION LETTERS AND COPIES OF THEIR INCOME TAX RETURNS IS NOT SUFFICIENT FOR PURPOSE OF DISCHARGING CREDITWORTHINESS OF SHARE APPLICANTS AND GENUINENESS OF TRANSACTIONS. T HE HON'BLE CALCUTTA HIGH COURT, IN ITS JUDGEMENT DELIVERED IN CASE OF CIT VS UNITED COMMERCIAL AND INDUSTRIAL CO (P) LTD. AS REPORTED IN (1991)187 ITR 596(CAL) W AS OF THE VIEW THAT THE ONUS OF THE ASSESSEE OF PROVING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE APPLICANTS DOES NOT GET DISCHARGED EVEN BY CONFIRMATORY LETTERS. FURTHER, THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS PRECISION FINANCE PVT. LTD. AS REPORTED IN (1994) 208 ITR 465 (CAL) HELD THAT RECEIVING OF THE AMOUNTS BY ACCOUNT PAYEE CHEQUES DOES NOT M AKE THE TRANSACTION SACROSANCT. THEREFORE, LD DR POINTED OUT THAT IN THE ASSESSEE`S CASE UNDER CONSIDERATION, THE ASSESSEE HAS NOT ESTAB LISHED THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE CAPITAL /SHARE PREMIUM THEREFORE, ADDITION UNDER SECTION 68 OF THE ACT SHOULD BE SUSTAINED. 14. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE, SUBMITTED BEFORE THE BENCH THAT THE ADDITION IN THE CASE OF SEARCH ASSESSMENT HAS TO BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. THE ASSESSING OFFICER CANNOT START A FRESH ASSESSMENT THAT HAD ALREADY BEEN COMPLETED UNDER THE ACT , WITHOUT HAVING ANY INCRIMINATING MATERIAL ON RECORD. THE ISSUE S IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 8 FORMING OF THE ITEMS OF THE REGULAR ASSESSMENT IS BEYOND THE SCOPE O F THE SEARCH ASSESSMENT U/S 153A/153C OF THE ACT AND THE AO HAD NO JURISDICTION TO MAKE ADDITIONS OTHERWISE THAN ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. IN THE ASSESSEE`S CASE UNDER CONSIDERATION, NO ANY INCRIMINATING MATERIAL WAS UNEARTHED BY THE SEARCH TEAM THEREFORE, NO ANY ADDITION SHOULD BE MADE. THE ASSESSEE HAD FILED THE RETURN OF ALLO TMENT TO REGISTRAR OF COMPANIES, COPY OF FORM NO. 2 FILED WITH R OC HA S ALREADY BEEN SUBMITTED BEFO RE . ALL THE SHAREHOLDERS ARE BODY CORPORATE. THEY ARE ASSESSED TO INCOME TAX FOR PAST SEVERAL YEARS. ALL THE SHARE APPLICATION MONEY HAS BEEN RECEIVED THROUGH BANKING CHANNELS , THEREFORE, THERE SHOULD NOT BE ANY ADDITION I N THE HANDS OF THE ASSESSEE AND THE ORDER OF THE LD CIT(A) SHOULD BE UPHELD. 15. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT THE GROUNDS RAISED BY THE REVENUE ARE AGAINST THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE INCOME TAX AC T, 196 1 , WHEREIN, ON APPEAL FILED BY THE ASSESSEE, THE LD CIT(A) DELETED THE ADDITION MADE BY ASSESSING OFFICER . THE MAIN CONTENTION OF THE ASSESSE IS THAT ADDITIONS MADE IN THE ASSESSMENT ORDER PA SSED U/ S 153A/143(3) ARE NOT BASED ON ANY INCRIMINATING DOCUMENTS/MATERIALS SEIZED DURING SEARCH OPERATION CONDUCTED UNDER SECTION 132 OF THE I . T . ACT,1961. WE NOTE THAT ASSESSING OFFICER MADE ADDITION OF RS.1,30,00,000/ ON ACCOUNT OF SHARE APPLICATION MON EY RECEIVED FROM , 1) ISPAT SHEETS LTD, 2) N.E.ELECTRONICS LTD, 3) NOVELTY TRADERS LTD, AND 4) ALBATROSS SHARE REGISTRY PVT. LTD. 16. WE NOTE THAT S UMMONS WERE ISSUED AND SERVED ON M/S IS PAT SHEETS LTD. , M/S NE.ELECTRONICS LTD. AND M/S NOVELTY TRADERS LTD . THE ASSESSEE HAD CONTACTED THE SAID PARTIES AND CAME TO KNOW THAT THEY HAVE SENT THEIR REPLY DATED 18.02.2016 THROUGH SPEED POST ON 19.02.2016 TO DDIT(INV), GUWAHATI. THESE PARTIES FILED THEIR WRITTEN SUBMISSIONS ALSO. WE NOTE THAT M/S NOVELTY T RADERS L TD. HAS COMPLIED TO NOTICE U/S 133(6) VIDE ITS LETTER DATED 30.01.2016 . M/S N.E.ELECTRONICS LTD. AND M/S ISPAT S HEETS LTD. HAVE COMPLIED TO NOTICE ISSUED U/S 133(6) VIDE THEIR LETTER DATED 08.02.2016 . VIA SPEED POST ON 10.02.2016. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 9 THE ASSESSEE HAS NO CO NTROL OVER THE DIRECTORS OF THE SHAREHOLDER COMPANIES. SINCE THEY HAVE SENT ALL THE RELEVANT DETAILS AND DOCUMENTS ASKED TO EXPLAIN THEIR SHARE APPLICATION MONEY GIVEN TO THE ASSESSEE COMPANY . REGARDING M/S. ALBATROSS SHARE REGISTRY PVT. LTD., ALTHOUGH SUM MONS COULD NOT BE SERVED ON THE SAID PARTY, BUT NOTICE U/S 133(6) WAS SERVED AND THEY HAVE COMPLIED TO THE SAID SUMMON AND HAVE FILED I NCOME T AX RETURN , AUDITED ACCOUNTS, RELEVANT PAGE OF BANK STATEMENT AND SOURCE OF FUND EXPLAINING THE SHARE APPLICATION M ONEY GIVEN BY THE SAID COMPANY. THIS COMPANY SENT ALL THE RELEVANT DETAILS AND DOCUMENTS ASKED TO EXPLAIN THEIR SHARE APPLICATION MONE Y GIVEN TO THE ASSESSEE COMPANY. 17. WE NOTE THAT SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON THE ASSESSEE (MUKTI GRO UP CASES), ON 13.11.2013 AND 09.01.2014, THEREFORE, THE PREVIOUS YEAR OF SEARCH OF THE ASSESSEE IS 01.04.2013 TO 31.03.2014, THAT IS, PREVIOUS YEAR 2013 14, RELEVANT TO THE ASSESSMENT YEAR 2014 15. WHEREAS, THE REVENUE IS IN APPEAL BEFORE US FOR THE ASSESS MENT YEAR 2009 10, 2010 11 AND 2011 12, AND ALL THESE ASSESSMENT YEARS ARE PRIOR TO SEARCH AND SEIZURE OPERATION, THAT IS, DATED 13.11.2013, THEREFORE, THE ADDITION, IF ANY, CAN BE MADE BASED ON THE INCRIMINATING MATERIAL ONLY. WE NOTE THAT ASSESSMENTS FOR ASSESSMENT YEARS 2009 10, 2010 11, AND 2011 12 WERE ALREADY COMPLETED, HENCE THESE THREE ASSESSMENT YEARS ARE UNABATED AND ADDITION CAN BE MADE ONLY BASED ON INCRIMINATING MATERIAL UNEARTHED DURING THE SEARCH AND SEIZURE. WE NOTE THAT IN THE COURSE OF SEA RCH & SEIZURE, NO INCRIMINATING DOCUMENTS WERE FOUND TO ESTABLISH THAT THE SHARE APPLICATION MONEY RECEIVED FROM THE SAID PARTIES ARE NOT GENUINE. WE NOTE THAT IN ASSESSEE`S CASE UNDER CONSIDERATION, T HE LD. AO WHILE EXERCISING THE POWERS CONFERRED WITHIN HIM U/S 153A OF THE ACT HAS FAILED TO APPRECIATE THE LEGAL POSITION THAT THE ADDITION IN THE CASE OF SEARCH ASSESSMENTS HAS TO BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL. THE LD. AO ALSO CANNOT START DOING A FRESH ASSESSMENT THAT HAD ALREADY BEEN COMPLETED EITHER U/S 143(3) OR U/S 143(1) OF THE ACT, WITHOUT HAVING ANY INCRIMINATING MATERIAL ON RECORD. IN PROCEEDINGS U/S 153A / 153C TO REOPEN THE COMPLETED ASSESSMENT IS RESTRICTED ONLY TO THE EXTENT OF INCRIMINATING DOCUMENTS , IF ANY , ONLY. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 10 WE NOTE T HAT ISSUES FORMING PART OF THE ITEMS OF THE REGULAR ASSESSMENT, IS BEYOND THE SCOPE OF THE SEARCH ASSESSMENT U/S.153A / 153C OF THE ACT AND THE AO HAS NO JURISDICTION TO MAKE ADDITIONS OTHERWISE THAN ON THE BASIS OF THE INCRIMINATING MATE RIAL FOUND I N THE CO URSE OF SEARCH. THE ABOVE ADDITION MADE IN THE ASSESSMENT ORDER IS PART AND PARTIAL OF THE REGULAR INCOME T AX RETURN. THIS FACT IS EVIDENT FROM THE ASSESSMENT ORDER AS THE AO HAS NOT REFERRED ANY INCRIMINATING MATERIAL FOR MAKING THE ABOVE ADDITIONS/DISALL OWANCES. 18. WE NOTE THAT A SEARCH WAS CONDUCTE D ON THE APPELLANT ON 13.11.2013 & 09.01.2014 AND PROCEEDINGS U/S.153A OF THE ACT WAS INVOKED AGAINST THE ASSESSEE. THE MAIN THRUST OF THE ARGUMENT OF THE LD.AR IS THAT ASSESSMENTS FOR AY 2009 10, 2010 11 AN D 2011 12 WERE COMPLETED U/S.143(3) /143(1) OF THE ACT, WELL BEFORE THE D ATE OF SEARCH I.E. ON 13.11.2013 , THEREFORE, THOSE ASSESSMENTS FOR THOSE YEARS CANNOT BE SAID TO BE PENDING BEFORE THE AO ON THE DATE OF SEARCH. BASED ON THE FACTS NARRATED ABOVE, WE NOTE THAT IN THE ASSESSEE`S CASE UNDER CONSIDERATION THERE WAS A FACTUAL FINDING THAT NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUE WAS FOUND DURING COURSE OF SEARCH AS WAS MANIFEST FROM THE ORDER OF A SSESSMENT O FFICER, THEREFORE IT IS NOT JUSTI FIED IN INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT, FOR THE PURPOSES OF MAKING ADDITION ON ACCOUNT OF SHARE CAPITAL. THE REVENUES RELIANCE OF SEARCH STATEMENT ALLEGEDLY ADMITTING THE IMPUGNED SHARE CAPITAL IN ABSENCE OF ANY EVIDENCE ALSO DESERVES TO BE REJECTED IN VIEW OF CBDTS CIRCULAR DT. 10/3/2003. THEREFORE, THE CONTENTIONS RAISED BY THE LD. DR CANNOT BE COUNTENANCED AND CONSEQUENTLY AS PER THE ORDER OF HONBLE DELHI HI GH COURT IN KABUL CHAWLA, (2016) 380 ITR 573(DEL) WHEREIN THE LAW IS SETTLED THAT FOR COMPL ETED ASSESSMENTS WHICH ARE NOT PENDING ON THE DATE OF SEARCH, THEN COMPLETED ASSESSMENTS CANNOT BE DISTURBED UNLESS INCRIMINATING MATERIAL HAVE BEEN UNEARTHED DURING THE SEARCH , HAS TO BE FOLLOWED AND NECESSARILY GIVEN EFFECT TO. ADMITTEDLY, NO SPECIFIC INCRIMINATING MATERIALS HAVE BEEN MENTIONED IN THE ASSESSMENT ORDERS FOR AYS 2009 10, 2010 11, 2011 12 WHICH HAVE BEEN ADMITTEDLY COMPLETED BEFORE SEARCH BY ORIGINAL ASSESSMENTS CONDUCTED BY SCRUTINY THEREFORE, NO ADDITION/DISALLOWANCE CAN BE MADE BY THE AO IN 153A PROCEEDINGS. THEREFORE, NO ADDITION/DISALLOWANCE CAN BE MADE WITHOUT THE AID OF AN INCRIMINATING MATERIAL UNEARTHED FOR THE YEARS REFERRED AS A IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 11 RESULT OF SEARCH. THE HONBLE DELHI HIGH COURT IN KABUL CHAWLA (SUPRA) HAS LAID DOWN THE LAW AS UNDER: SUMMARY OF LEGAL POSITION 37.ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH PROVISIONS 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 AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TA KES PLACE. II.ASSESSMENTS AND RE - ASSESSMENTS 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 YE ARS 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 WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX `AYS IN WHICH BO TH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. 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 AVAILA BLE WITH AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY , AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V) . IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD `ASSESS IN SECTION 153A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON T HE 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 S HALL 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 THE AO . VII.COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 12 19. THE HONBLE JURISDICTIONAL C ALCUTTA HIGH COURT IN THE CASE OF VEERPRABHU MARKETING LTD . 73 TAXMANN.COM 149 (CAL), HAS ALSO HELD AS UNDER: WE AGREE WITH THE VIEW EXPRESSED BY THE DELHI HIGH COURT THAT INCRIMINATING MATERIAL IS PRE - REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISE U/S 1 53(C) R.W. SECTION 153(A). IN THE CASE BEFORE US, THE AO HAS MADE A DISALLOWANCE OF THE EXPENDITURE, WHICH WAS HELD DISCLOSED, FOR ONE REASON OR THE ORDER, BUT SUCH DISALLOWANCES MADE BY THE AO WERE UPHELD BY THE L.D.CIT (A) BUT THE LD. TRIBUNAL DELETED THESE DISALLOWANCE. WE FIND NO INFIRMITY IN THE AFORESAID ACT OF THE LD. TRIBUNAL. THE APPEAL IS THEREFORE, DISMISSED. 20. ALSO, APEX COURT IN THE CASE OF CIT V. SINHGAD TECHNICAL EDUCATION SOCIETY 397 ITR 344 HAS HELD AS UNDER: 18) IN THIS BEHALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS WHICH WERE SEIZED DID NOT ESTABLISH ANY CO - RELATION, DOCUMENT - WISE, WITH THESE FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONING TO BE LOGICAL AND VALID, HAVING R EGARD TO THE PROVISIONS OF SECTION 153C OF THE ACT. PARA 9 OF THE ORDER OF THE ITAT REVEALS THAT THE ITAT HAD SCANNED THROUGH THE SATISFACTION NOTE AND THE MATERIAL WHICH WAS DISCLOSED THEREIN WAS CULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMEN T YEAR 2004 - 05 OR THEREAFTER. AFTER TAKING NOTE OF THE MATERIAL IN PARA 9 OF THE ORDER, THE POSITION THAT EMERGES THEREFROM IS DISCUSSED IN PARA 10. IT WAS SPECIFICALLY RECORDED THAT THE COUNSEL FOR THE DEPARTMENT COULD NOT POINT OUT TO THE CONTRARY. IT IS FOR THIS REASON THE HIGH COURT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF THE TRIBUNAL. THAT APART, LEARNED SENIOR COUNSEL APPEARING FOR THE RESPONDENT, ARGUED THAT NOTICE IN RESPECT OF ASSESSMENT YEARS 2000 - 01 AND 2001 - 02 WAS EVEN TIME BARRED. 2 1 SUPPORT, IS ALSO DRAWN FROM THE FOLLOWING JUDGMENTS: I) BISWANATHGARODIAVS.DCIT (2016) 76 TAXMANN.COM81 II) CIT VS.CONTINENTAL WAREHOUSINHG (NHAVASHEVA) LTD (2015 374 ITR 645). III) JAI STEEL (INDIA) JODHPUR VS. ACIT (2013) 259 C TR 281 IV) CIT VS.DEEPAK KUMAR AGGARWAL (2017) 398 ITR 586 V) PRINCIPAL CIT VS.DIPAKJASHVANTALAPANCHAL (2017) 397 ITR 253. IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 13 VI) PRINCIPAL VIT VS.LALIT JAIN (2017) 384 ITR 543 VII) PR.CIT VS. DVANGI ALIAS RUPA (2017 394 ITR 184 VIII) CHINTELS INDIA LTD VS. D CIT (2017) 397 ITR 416 IX) SMT.ANJLIPANDITVS.ACIT (2017) 157 DTR (MUM) (TRI.) 17 X) PR.CITVS.MEETAGUTGUTIA (2016)395 ITR 526. 2 2 . WE FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH AND SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE IT ACT, 1961, INCRIM INATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST, ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) ARE NOT BASED ON ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT BE OUT OF CONTEXT TO MENTI ON HERE THAT IN ASSESSEE`S CASE UNDER CONSIDERATION , ON THE DATE O F SEARCH, NO ASSESSMENT FOR THESE THREE YEAR S (THAT IS, ASSESSMENT YEARS 2009 10, 2010 11 AND 2011 12) WERE PENDING . THE ISSUE OF SHARE CAPITAL WAS BEFORE THE AO DURING THE ORIGINAL ASSESSME NT PROCEEDINGS AND IN ORIGINAL ASSESSMENT PROCEEDINGS UNDER SECTION 143(3)/143(1), THE ASSESSING OFFICER EXAMINED THE ISSUE RELATING TO SHARE CAPITAL/SHARE PREMIUM. ASSESSMENT UNDER SECTION 153A WAS MADE BY ASSESSING OFFICER AFTER SEARCH AND NO ANY INCRIMI NATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION , THEREFORE, WITHOUT INCRIMINATING MATERIAL THE ADDITION SHOULD NOT BE MADE . THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE HONBLE DELHI HI GH COURT IN THE CASE OF KABUL CHAWLA, (2016) 380 ITR 573(DEL) (SUPRA) AND THE RATIO DECIDED BY THE HON 'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA) , W E ARE THUS OF THE CONSIDERED OPINION THAT SINCE THERE IS NO INCRIMINATING MATERIAL UNEARTHED DURING SEARCH IN RESPECT OF THE CONCL UDED ASSESSMENTS, NO ADDITION/DISALLOWANCE COULD BE MADE BY THE AO FOR AYS 2009 10, 2010 11, 2011 12 . THEREFORE, THE ADDITION/DISALLOWANCE MADE IN IMPUGNED ASSESSMENTS FOR THE AYS 2009 10, 2010 11, AND 2011 12 ARE ORDERED TO BE DELETED. 2 3 . WE NOTE THAT I N ASSESSMENT YEAR 2010 11, THE REVENUE RAISED THE ADDITION AL GROUND, WHICH READS AS FOLLOWS: IT (SS) NOS. 17 TO 19/KOL/2017 M /S. MUKTI PROJECTS PVT. LTD . 14 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN DELETING ADDITION OF RS.4,78,038/ - MADE SINCE, THE APPEAL OF T HE REVENUE IS DISMISSED BY US ON LEGAL GROUND THAT NO ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION , AND ABOVE GROUND RAISED BY THE REVENUE IN A.Y. 2010 11 ALSO COVERED IN THE LEGAL GROUND ADJUDICATED BY US , THEREFORE THE SAID GRO UND DOES NOT REQUIRE ADJUDICATION. 2 4 . THEREFORE, BASED OF THE FACTS NARRATED ABOVE AND LEGAL POSITION DISCUSSED ABOVE, WE DISMISS THE APPEALS OF REVENUE FOR A.Y.2009 10 (IT SS 17), 2010 11 (IT SS 19) AND A.Y.2011 12 (IT SS 18). 2 5 . IN THE RESULT, THE AP PEALS FILE BY THE REVENUE, FOR A.Y.2009 10 (IT SS 17), 2010 11 (IT SS 19) AND A.Y.2011 12 (IT SS 18), ARE DISMISSED. PRONOUNCED ON 14.12.2018 SD/ SD/ ( S. S. GOD ARA ) (DR. A.L.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 1 2 2018 *PRADIP (SR.PS) COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ REVENUE : THE D CIT /ACIT , CIR 3(4), AAYKAR BHAWAN POORVA, 5 TH FLOOR, 110 SHANTI PALLY, K OLKATA 107. 2 THE RESPONDENT/ ASSESSEE : M/S. MUKTI PROJECTS PVT. LTD 4 CLIVE ROW, MUKTI CHAMBERS KOLKATA 1. 3. THE CIT I, 4. THE CIT(A) I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR ITAT, KOLKATA BENCHES