The Dy. Commissioner of Income Tax, Central Circle-2(2), Ahmedabad V. Ankur Oil Industries, Ahmedabad

ITSSA 176/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3870 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 22-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M P SINGH
• Assessee Lawyers: J P SHAH; M J SHAH
• Keywords: Document seized; Documents seized
• Section: 143(3); 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CENTRAL CIRCLE - 2(2), AHMEDABAD (APPELLANT) VS ANKUR OIL INDUSTRIES, 471/1, CHOKA BAZAR, KALUPUR, AHMEDABAD - 380001 PAN: AABFA6682K (RESPONDENT) REVENUE BY : S H RI M.P. SINGH, CIT - D . R. ASSESSEE BY: S H RI J.P. SHAH AND SHRI M.J. SHAH , A.R. DATE OF HEARING : 28 - 06 - 2 018 DATE OF PRONOUNCEMENT : 06 - 08 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE FOUR APPEALS FILED BY REVENUE A.Y. 2006 - 07 TO 2009 - 10 , AR ISE FROM ORDER OF THE CIT(A) - 12 , AHM EDABAD DATED 20 - 03 - 2016 , IN PROCEEDINGS UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 196 1; IN SHORT THE ACT . 2. AS THE FACTS OF ALL THE FOURS APPEALS ARE SIMI LAR, SO, WE TAKE IT(SS)A NO. 176/AHD/2016 FOR ASSESSMENT YEAR 2006 - 07 AS THE LEAD CASE AND ITS FINDINGS WILL BE APPLICABLE TO THE REMAINING THREE APPEALS FOR ASSESSMENT YEAR 2007 - 08 TO 2009 - 10 FOR THE SAKE OF CONVENIENCE. 3. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - I T (SS) A NO . 176 TO 179 / A HD/20 16 A SSESSMENT YEAR 200 6 - 07 TO 2009 - 10 I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DISALLOWANCE OF UNSECURE D LOAN U/S 68 OF RS. 34,85,000/ - . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DISALLOWANCE OF INTEREST U/S 36(1)(III) OF RS. 11,00,000/ - . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 4 . THE BRIEF FACT OF THE CASE IS T HAT A SEARCH ACTION WAS CARRIED OUT IN THE CASES OF ANKUR DALAL GROUP ON 28 TH MARCH 2012. THEREFORE, IN ACCORDANCE WITH THE PROVISION OF SECTION 153 A OF THE ACT A NOTICE WAS ISSUED ON 5 TH DECEMBER, 2012 AND SERVED UPON ASSESSEE ON 1 3 RD DECEMBER, 2012. I N RESPONSE TO NOTICE, THE ASSESSEE HAS FILED RETURN OF INCOME ON 11 TH JANUARY, 2013 DECLARING TOTAL INCOME AT RS. 41,46 , 599/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTICED THAT ASSES SEE HAS OBTAINED UNSECURED LOAN TO THE AMOUNT OF RS. 34 , 85 , 000/ - FROM THE FOLLOWING PERSONS: - SL. NO NAME AMOUNT 1 SHEILA D MEHTA 1,50,000/ - 2. KESHAVLAL SANKARDAS PATEL 5,00,000/ - 3. DEVAL GORDHANBHAI PATEI 3,50,000/ - 4 INDUBEN CHANDUBHAI PATEL 5,00,000/ - 5. PATEL & CO 18 ,60,000/ - 6. RUPESH VINODRAY ZATAKIYA 1,25,000/ - TOTAL 34,85,000/ - ON PERUSAL OF T HE DETAILE D FILED BY THE ASSESSEE DURING T HE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE LOAN CREDITORS HAD NOT EXPLAINED THE SOURC E OF THE ABOVE MENTIONED LOAN TO THE ASSESSEE FIRM. THEREFORE, THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAS FAILE D TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE LOAN CREDITORS. I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 3 CONSEQUENTLY , IN ABSENCE OF SATISFACTORY EXPL ANATION OF THE SOURCE OF CREDIT IN THE BOOKS OF ACCOUNT OF ABOVE SIX MENTIONED CREDITORS, THE ASSESSING OFFICER HAS MA D E ADDITION OF RS . 34 , 85,000/ - AS INCOME WITHIN THE MEANING OF SECTION 68 OF THE IT ACT. THE ASSESSING OFFICER HAS ALSO NOTICED THAT ASS ES S EE HAS PAID INTEREST TO VARIOUS PERSONS TO WHOM UNSECURED LOANS WERE OBTAINED H OWEVER, IT HAS NOT CHARGED INTEREST FROM THE PARTIES TO WHOM INTEREST FREE ADVANCES WERE EXTENDED . CONSEQUENTLY, , THE ASSESSING OFFICER HAS DISALLOWED AN AMOUNT OF RS. 11 LACS U/S. 36(1)(III) OF THE ACT 5 . AGGRIEVED ASSESSEE FIL E D APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE. RELEVANT PART OF T HE DECISION OF THE LD. CIT(A) IS REPRODUCED AS UNDER: - 5.4 AFTER HAVING CONSIDERED THE SU BMISSIONS MADE AND THE ARGUMENTS ADVANCED, INCLUDING THOSE AT THE ASSESSMENT STAGE, 1 AM OF THE CONSIDERED OPINION THAT THE ASSUMPTION OF JURISDICTION U/S 153A BY THE AO IS NOT SUSCEPTIBLE TO CHALLENGE ON THE GROUND OF UNAVAILABILITY OF SEIZED DOCUMENTS FO R THE CONCERNED YEAR IN VIEW OF THE STATUTORY OBLIGATION ON THE PART OF THE AO TO ISSUE NOTICE U/S 153A FOR 6 ASSESSMENT YEARS PRECEDING THE SEARCH - RELEVANT ASSESSMENT YEAR AND CONSEQUENTLY TO REFRAME THE ASSESSMENTS. THIS VIEW HAS ALSO BEEN CATEGORICALLY EXPRESSED BY SPECIAL BENCH IN ALL CARGO GLOBAL AND DELHI HIGH COURT IN KABUL CHAWLA (SUPRA). HOWEVER, THE OBJECTION TO THE JURISDICTION OF THE AO AS PER THE GROUND RAISED AND REPRODUCED ABOVE IS ALLOWED BY ME TO BE REFRAMED/REDUCED TO AN OBJECTION WITH REG ARD TO THE LEGALITY OF THE ADDITIONS MADE DE HORS THE INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF THE SEARCH IN VIEW OF RELIANCE BY THE APPELLANT ON ALL CARGO GLOBAL (SPECIAL BENCH) AND ON JAYABEN SORATHIA (GUJ) (SUPRA) BEFORE THE AO HIMSELF (WHICH THOUGH HAS NOT BEEN DEALT WITH BY THE AO). THIS IS BEING ALLOWED ALSO IN VIEW OF THE FACT THAT THE GROUND IS PURELY A LEGAL GROUND WHICH IS DEEMED COMPRISED IN THE GROUND RAISED AND REPRODUCED AS ABOVE AND WITH REGARD TO WHICH OR WITH REGARD TO THE STATEME NT OF FACTS/WRITTEN SUBMISSIONS FORWARDED TO THE AO, NO ADVERSE COMMENTS HAVE BEEN RECEIVED IN HIS REPORT DATED 27/11/2015. THUS, I PROCEED TO DEAL WITH THE FOLLOWING GROUND DEEMED COMPRISED IN AND ALLOWED BY ME TO BE SO ALTERED AND ARGUED BY THE APPELLANT . 'THE AO ERRED IN MAKING THE ADDITIONS U/S 36(L)(III) AND U/S 68 DE HORS THE INCRIMINATING SEIZED MATERIAL ENABLING HIM IN THIS BEHALF.' 5.5 THE LD. ARS HAVE MADE DETAILED WRITTEN SUBMISSIONS AND ALSO TOOK ME THROUGH VARIOUS AUTHORITIES AS DETAILED AND N ARRATED ABOVE. I FIND THAT THE GROUND BASED ON SIMILAR FACTS AND SIMILAR ARGUMENTS HAS ALREADY BEEN DECIDED BY ME IN APPEALS IN THE CASE OF ARVIND V. JOSHI & CO. IN APPEAL NO. CTT(A)12/501 TO 504/DCIT - CC - 2(3)/14 - 15 DATED 28/12/2015 WHEREIN IT. HAS BEEN HEL D BY ME, ALLOWING THE GROUND WHILE RESPECTFULLY FOLLOWING THE BINDING AUTHORITIES DISCUSSED THEREIN, THAT THE ADDITIONS MADE DE HORS THE INCRIMINATING SEIZED MATERIAL IN UNABATED AND CONCLUDED ASSESSMENTS REFRAINED U/S 153A ARE IN CONTRAVENTION OF LAW LAID DOWN BY BINDING AUTHORITIES AND THEREFORE NOT SUSTAINABLE. THE RELEVANT PORTION OF THE ORDER, WHICH ENCAPSULATES THE AUTHORITIES RELIED UPON BY ME IN THIS BEHALF, IS REPRODUCED AS UNDER: I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 4 '5.6 TURNING TO THE RATIO OF ALL CARGO GLOBAL 23 TAXMANN.COM 103 DAT ED 6/7/2012 CITED BEFORE THE AO, THE SPECIAL BENCH HAD UNAMBIGUOUSLY AND EXPRESSLY ANSWERED THE QUESTION REFERRED TO IT AS UNDER: THUS, QUESTION RAISED BEFORE THE SPECIAL BENCH NO. I IS ANSWERED AS UNDER: (A) IN ASSESSMENT THAT ARE ABATED, THE ASSESSING OF FICER RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM UNDER SECTION153AFOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY; (B) IN OTHER CASES, IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSES SED, THE ASSESSMENT UNDER SECTION 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS - BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSE SSMENT, AND UNDISCLOSED INCOME OR PROPERLY DISCOVERED IN THE COURSE OF SEARCH. [PARA 58] 5.7 MOREOVER, IT WAS FURTHER SUBMITTED DURING THE COURSE OF HEARING THAT SUBSEQUENT TO ALL CARGO GLOBAL (SUPRA), THERE ARE FURTHER DECISIONS WHICH INCLUDE DECISIONS OF BOMBAY HC IN CONTINENTAL WAREHOUSING 58 TAXMANN.COM 78, DELHI HC IN KABUL CHAWALA'61 TAXMANN.COM 412 (DEL) AND VARIOUS OTHER TRIBUNALS, INCLUDING JURISDICTIONAL TRIBUNAL CONCURRING WITH THE VIEW OF THE SPECIAL BENCH IN ALL CARGO GLOBAL (SUPRA) WITH REGARD TO SCOPE OF ADDITIONS U/S 153A/153C. THE LD. AR HAS FURTHER POINTED OUT THAT THE LATEST DECISION OF DELHI HC IN KABUL CHAWLA, RELIED UPON BY HIM, (AND REPRODUCED SUPRA), HAS, AFTER THOROUGHLY REVIEWING THE EXISTING AUTHORITIES, REITERATED AH CARGO GLOBAL (SUPRA), WHICH, NOW IN TURN, IS ALSO BEING CONSISTENTLY FOLLOWED BY AHMEDABAD TRIBUNAL. IT WAS THEREFORE SUBMITTED TO HOLD THE ADDITIONS MADE BY THE AO AS UNSUSTAINABLE IN LAW AND THUS DELETE THE SAME. HAVING GONE THROUGH THE DECISIONS, WHILE FULLY AGREEIN G WITH THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT, I WOULD ONLY QUOTE FROM KABUL CHAWLA 61 TAXMANN.COM 412 (DEL) AND DESAI CONSTRUCTION (AND TRIB) AND SAUMYA CONSTRUCTION (AHD TRIB) THE COPIES OF WHICH HAVE BEEN FURNISHED: KABUL CHAWALA 61 TAXMANN.COM 412 (DEL) 'SUMMARY OF THE LEGAL POSITION 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ......... II ............ III ............ VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHITE MAKING THE ASSESSMENT UNDER SECTION 1S3A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED 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..........'. DESAI CONSTRUCTION P. LTD., V. ACIT DATED 22/7/2O15 IT(SS)A. NOS.12 & 13/AHD/2O12 (AHD) . 3.2 ................ THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY OTHER EVIDENCE INCLUDING ANY INCRIMINATING MATERIAL WAS FOUND DURING COURSE OF SEARCH FOR THE RELEVANT ASSESSMENT YEARS IN RESPECT OF CLAIM U/S. 80IA OF THE ACT. IN THIS BACKGROUND, IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING SEARCH, NO ADDITION CAN BE MADE IN RESPECT OF UNABATED ASSESSMENTS AND WHICH HAVE BECOME FINAL AS ON THE DATE OF SEARCH. THE COMPLETED ASSESSMENTS FOR THE YEARS UNDER APPEAL HAVE BECOME FINAL AND ARE NOT ABATED SINCE THEY ARE NOT PENDING AS ON THE DATE OF SEARCH. THEREFORE, EVEN THOUGH PURSUANT TO ISSUE OF NOTICE U/S. 153A, ASSESSMENTS FOR 6 YEARS IMMEDIATELY PRIOR TO THE DATE OF SEARCH ARE TO BE FRAMED U/S. 1S3A, BUT IN RESPECT OF UNABATED ASSESSMENTS WHICH HAVE BECOME FINAL AND NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF' SEARCH FOR THOSE YEARS, NO ADDITION COULD BE MADE IN RESPECT OF SUCH UNABATED I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 5 ASSESSMENTS. IN THIS REGAR D, HON'BLE BOMBAY HIGH COURT IN CASE OF CONTINENTAL WAREHOUSING CORPORATION (58 TAXMANN.COM 78} HAS HELD AS UNDER: SIMILAR VIEW HAS ALSO BEEN HELD BY THE PUNE IT AT IN THE CASE OF SKJ PEETY STEELS PVT. LTD. (137 TTJ 627) AND THE DELHI IT AT CASE OF 'SANJA Y AGGARWAL (47 TAXMANN.COM. 210). IN VIEW OF BINDING PRECEDENTS, REVENUE AUTHORITIES WERE NOT JUSTIFIED IN MAKING DISALLOWANCE CLAIMED U/S. SOLA IN RESPECT OF UNABATED ASSESSMENTS BECAUSE THERE WAS NO INCRIMINATING DOCUMENT FOUND DURING SEARCH WHICH COULD SUGGEST THAT CLAIM U/S. SOLA IS NOT PERMISSIBLE EVEN THOUGH ASSESSMENT U/S. 153A CAN BE MADE. WE HOLD SO. ACCORDINGLY, SAME IS QUASHED AND CLAIM OF ASSESSEE U/S.80IA(4) AMOUNTING TO RS.61,82,292/ - CANNOT BE NEGATED. ASSESSING OFFICER IS DIRECTED ACCORDING LY.' SAUMYA CONSTRUCTION PVT. LTD. VERSUS ACIT, CENTRAL CIRCLE - 1 (3), IT(SS}A. NO. 3/AHD/2014 DATED: - 21 - 8 - 2O15 AHMEDABAD 9 TMI188 '.......6. WE HAVE NOTED THAT, AS LEARNED COUNSEL FAIRLY ACCEPTS, THE GRIEVANCE OF THE ASSESSEE IS NOT AGAINST FRAMING OF THE ASSESSMENT U/S 153A BUT IS CONFINED TO MAKING OF ANY ADDITIONS OR DISALLOWANCES OTHER THAN ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH OPERATIONS. IN EFFECT THUS, ADDITIONS CANNOT BE MADE OTHER THAN ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH OPERATIONS. THAT PLEA STANDS APPROVED BY A COORDINATE BENCH OF THE TRIBUNAL, IN THE CASE OF SANJAY AGGARWAL VS. DCIT [(2014) 47 TAXMANN.COM 210 (DEL)], BY OBSERVING AS FOLLOWS: 13. THE ABOVE EXTRACTED OBSERVATION S OF THE HON. HIGH COURT, WHICH ARE THOUGH OBITER DICTA, MAKE THE POINT CLEAR THAT WHERE AN ASSESSMENT ORDER HAS ALREADY BEEN PASSED FOR A YEAR (S) WITHIN THE RELEVANT SIX ASSESSMENT YEARS, THEN ALSO THE AO IS DUTY BOUND TO REOPEN THOSE PROCEEDINGS AND REA SSESS THE TOTAL INCOME BUT BY 'TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY 'UNEARTHED DURING THE SEARCH'. THE EXPRESSION 'UNEARTHED DURING THE SEARCH' IS QUITE SIGNIFICANT TO DENOTE THAT IN RESPECT OF COMPLETED OR NON - PENDING ASSESSMENTS, THE ASSESSING OF FICER IS ALBEIT DUTY BOUND TO ASSESS OR REASSESS THE TOTAL INCOME BUT THERE IS A CAP ON THE SCOPE OF ADDITIONS IN SUCH ASSESSMENT, BEING THE ITEMS OF INCOME 'UNEARTHED DURING THE SEARCH'. IN OTHER WORDS, THE DETERMINATION OF 'TOTAL INCOME; IN RESPECT OF TH E ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS ARE ALREADY COMPLETED ON THE DATE OF SEARCH, SHALL NOT BE INFLUENCED BY THE ITEMS OF INCOME OTHER THAN THOSE BASED ON THE MATERIAL UNEARTHED DURING THE COURSE OF SEARCH................. 7. WE SEE NO REASONS TO T AKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE COORDINATE BENCH. RESPECTFULLY FOLLOWING THE SAME, AND HAVING NOTED THAT THE ADDITIONS OF RS. 11,05,5 1,000/ - IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH OPERATIONS ON THE ASS ESSEE, WE DELETE THE SAID ADDITION......' 5.8 IN VIEW OF THE BINDING AUTHORITIES AS DISCUSSED ABOVE, IT IS DOUBTLESSLY IMPERATIVE THAT THE AO AND I BOTH RESPECTFULLY FOLLOW THE PRINCIPLE THAT NO ADDITIONS DE HORS THE INCRIMINATING MATERIAL SEIZED DURING SE ARCH CAN BE MADE OR SUSTAINED IN UNABATED ASSESSMENTS FRAMED U/S 153A. ON FACTS, THERE IS NO DISPUTE THAT THE ASSESSMENTS UNDER REFERENCE WERE CONCLUDED AND UNABATED ON THE DATE OF THE SEARCH. THERE IS ALSO NO DISPUTE THAT THERE IS NO INCRIMINATING SEIZED MATERIAL USED, RELIED UPON OR REFERRED TO BY THE AO OR POINTED OUT DURING THE COURSE OF HEARING, FOR MAKING OR SUPPORTING ANY OF THE ADDITIONS. THUS, THE APPELLANT'S CASE IS SQUARELY COVERED BY THE RATIOS OF THE BINDING AUTHORITIES DISCUSSED, AND THEREFORE , ANY OF THE ADDITIONS MADE BY THE AO FOR ANY OF THE YEAR UNDER APPEAL ARE NOT SUSTAINABLE. THUS AND THEREFORE, ALL THE ADDITIONS MADE BY THE AO IN CONTRAVENTION OF LAW LAID DOWN BY BINDING AUTHORITIES DISCUSSED SUPRA ARE DELETED FOR ALL THE THREE YEARS UN DER REFERENCE............' I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 6 5.5 IN VIEW OF THE DISCUSSION AS ABOVE, IT IS IMPERATIVE THAT I FOLLOW THE VIEW ALREADY TAKEN BY ME IN MY EARLIER DECISION IN M/S ARVIND V. JOSHI & CO. AS EXTRACTED ABOVE. IT IS NOT IN DISPUTE THAT THE FOUR ASSESSMENT YEARS UNDE R APPEAL REMAINED 'UNABATED', AS NO PROCEEDINGS WERE PENDING BEFORE THE AO ON THE DATE OF THE SEARCH I.E. ON 28/03/2012. THE LD. AO HAS ALSO NOT POINTED OUT ANY DISTINGUISHING FACTS OR ANY INCRIMINATING SEIZED DOCUMENT IN SUPPORT OF ANY OF THE ADDITION MAD E BY AO FOR ANY OF THE YEARS UNDER REFERENCE. IT IS THEREFORE HELD THAT THE ADDITIONS MADE BY THE AO DE HORS THE REFERENCE OR FOUNDATION IN INCRIMINATING SEIZED MATERIAL ARE NOT SUSTAINABLE FOR ANY OF THE ASSESSMENT YEAR UNDER APPEAL AND THEREFORE, THE SAM E ARE DELETED. GROUND NO. 1 PARTLY SUCCEEDS FOR ALL THE FOUR YEARS UNDER APPEAL TO THE EXTENT THAT ADDITIONS MADE BY THE AO DE HORS INCRIMINATING SEIZED MATERIAL STAND DELETED. HOWEVER, AO'S JURISDICTION TO REFRAME ASSESSMENT U/S 153A IS, AT THE SAME TIME, UPHELD AS DISCUSSED EARLIER WHEREIN HE IS DIRECTED MERELY TO 'REITERATE' THE INCOME ASSESSED ORIGINALLY U/S . 143(1)/143(3) , AS HELD IN KABUL CHAW LA (SUPRA). APPELLANT GETS RELIEF AS UNDER: A.Y. RELIEF (RS.) 2006 - 07 20,85,970 2007 - 08 22,35,647 200 8 - 09 38,50,130 2009 - 10 24,28,292 6. AS THE GROUND ON LEGALITY OF ADDITIONS IS ALLOWED, THE OTHER GROUNDS ON MERITS ARE CONSIDERED NOT NECESSARY TO BE ADJUDICATED AT THIS JUNCTURE. THE RELATED GROUNDS OF THE APPELLANT IN GROUND NO. 2 AND 3 CONTESTING THE ADDITIONS ON MERIT ARE THEREFORE DISMISSED AS PURELY ACADEMIC NOT REQUIRING ADJUDICATION. 7. IN THE RESULT, THE APPEALS ARE PARTLY ALLOWED FOR ALL THE FOUR YEARS UNDER APPEAL. 6 . WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MA T ERIAL ON RECORD CAR EFULLY. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. COUNSEL HAS ALSO PLACED RELIANCE ON THE DECISION OF SPECIAL BENCH IN THE CASE OF AL CARGO GLOBAL LOGISTICS LTD. AND DELHI HIGH COURT IN THE CASE OF KABUL CHABLA AND DECISION OF HON BLE GUJARAT HIG H COURT IN THE CASE OF SAUMYA CONSTRUCTION PVT. LTD. WE OBSERVE FROM THE FINDING OF ASSESSING OFFICER THAT HE HAS NOT D EMONSTRATED ANY INCRIMINATING SEIZED MATERIAL FOUND FROM THE SEARCH ON THE BASIS WHICH ABOVE REFERRED IMPUGNED ADDITION S W ERE MADE FOR T HE YEAR UNDER CONSIDERATION . THE ORIGINAL ASSESSMENT IN THE CA SE OF THE ASSESSEE WAS COMPLETED U/S. 143(3) ON 31 ST MARCH, 2008 AND DURING THE COURSES OF ORIGINAL PROCEEDINGS U/S. 143(3), THE ASSESSING OFFICER HAS ALREADY CONSIDERED THE INFORMATION AVA ILABLE AS PER AUDITED BOOKS OF ACCOUNTS OF THE ASSESSEE . AND D URING THE COURSE OF THIS ASSESSMENT I.T. (SS) A NO. 176 TO 1 79 /AHD/20 16 A.Y. 2006 - 07 TO 2009 - 10 PAGE NO DCIT VS. ANKUR OIL IN DUSTRIES 7 PROCEEDING U/S. 1 53 A THE ASSESSING OFFICER HAS SIMPLY RELIED ON THE SAME AUDITED BOOKS OF ACCOUNTS . IN THE LIGHT OF THE ABOVE MENTIONED FACTS, WE OBSERVED T HAT THERE IS NO INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH . DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT POINTED OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH ON THE BAS IS OF WHICH THE IMPUGNED ADDITION S WERE MADE. WE FIND THAT THE ADDITION IN T H E CASE OF T HE ASSESSEE ARE BASED EXCLUSIVELY ON T H E SAME BOOKS OF ACCOUNTS WHICH WERE ALREADY CONSIDERED BY THE ASSESSING OFFICER WHILE FRAMING ORIGINAL ASSESSMENT U/S. 143(3) OF THE ACT. IN VIEW OF THE ABOVE FACTS AND LEGAL FINDINGS, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD. CIT(A) IN HOLDING THAT ASSESSING OFFICER HAS NO JURISDICTION TO MAKE THE IMPUGNED ADDITION WITHOUT ANY INCRIMINATING SEIZED MATERIAL DURING THE C OURSE O F SEARCH. ACCORDINGLY , THE APPEAL S OF THE REVENUE ARE DISMISSED . 7. IN THE COMBINED RESULT, ALL THE FOUR APPEALS FILED BY REVENUE ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 06 - 08 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 06 /08 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMED ABAD 6. GUARD FILE. BY ORDER/ , / ,