M/s. Sethia Fiscal Pvt. Ltd., , Kolkata V. ACIT, Central Circle - 3(3), Kolkata , Kolkata

ITSSA 2/KOL/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0828 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M SURANA
• Assessee Lawyers: HOSPITAL KOLKATA
• Keywords: Unexplained cash credit; Search and seizure; Document seized; Earning of tax free income; Accommodation entries; Assessment record; Documents seized
• Section: 143(3); 133A; 153A; 14A; 68; 132; 15

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER IT (SS) A NO. 01 & 02 / KOL / 20 18 ASSESSMENT YEARS : 2009-10 & 2010-11 M/S SETHIA FISCAL PVT. LTD., 143, COTTON STREET, 3 RD FLOOR, KOLKATA-700007 [ PAN NO.AADCS 6654 A ] V/S . ACIT, CENTRAL CIRCLE- 3(3), 110, SHANTIPALLY, NR. RUBY HOSPITAL, KOLKATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.M. SURANA ADVOCATE & SHRI SUNIL SURANA, ADVOCATE /BY RESPONDENT SHRI G. MALLIKARJUNA, CIT-DR /DATE OF HEARING 09-07-2018 /DATE OF PRONOUNCEMENT -10-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE TWO ASSESSEES APPEAL FOR ASSESSMENT YEAR(S) 2009-10 AND 2010-11 ARISE AGAINST THE COMMISSIONER OF INCOME TA X (APPEALS)-21 KOLKATAS SEPARATE ORDERS; BOTH DATED 18.01.2018, P ASSED IN CASE NO.10 & 11/ACIT, CC-3(3)/CIT(A)-21/KOL/2016-17, UPHOLDING V ALIDITY OF THE TWO ASSESSMENTS AS WELL AS SECTION 68 ADDITIONS OF UNEX PLAINED SHARE CAPITAL / PREMIUM OF 46.05 LAC AND 90 LAC FOLLOWED BY SEC. 14A R.W.S RUL E 8D DISALLOWANCE OF 15,716/- AND 38,874/- (ASSESSMENT YEAR-WISE); RESPECTIVELY, INVOLVING PROCEEDINGS U/S. 153C R.W 1 43(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILES PERUSED. IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 2 2. WE COME TO THE IDENTICAL ISSUE OF VALIDITY OF TH E IMPUGNED SEC. 153C R.W.S 143(3) ASSESSMENT PROCEEDINGS FIRST OF ALL. A SSESSEES FORMER APPEAL IT(SS) NO.01/KOL/2018 IS TAKEN AS THE LEAD CASE FOR THE SAKE OF CONVENIENCE AND BREVITY. THE CIT(A) FINDINGS UNDER CHALLENGE QUA THE INSTANT LEGAL ISSUE READS AS FOLLOWS:- 3. IN GROUNDS NO 2 TO 4, THE APPELLANT HAS CHALLENG ED THE JURISDICTION OF THE LD.AO IN COMPLETING THE ASSESSMENT U/S 153C/143(3) OF THE INCOME TAX ACT, 1961. IT HAS BEEN CONTENDED THAT THE LD AO HAS ERRE D IN TAKING PROCEEDINGS AND COMPLETING THE ASSESSMENT U/S. 153C WHEN NO SIN GLE DOCUMENT OR EVIDENCE INDICATING ANY CONCEALED INCOME WAS FOUND OR DETECTED FOR THE ASSESSMENT YEAR IN QUESTION IN THE COURSE OF SEARCH AND THE ASSESSMENT WAS NOT ABATED. IT HAS BEEN FURTHER CONTENDED BY THE AP PELLANT THAT THE LD AO HAS ERRED IN TAKING PROCEEDINGS AND COMPLETING THE ASSE SSMENT U/S, 153C SIMPLY ON THE GROUND THAT EVEN THOUGH NO INCRIMINATING PAP ERS WERE FOUND IN THE COURSE OF SEARCH OF THE ASSESSEE YET INCRIMINATING DOCUMENTS WERE FOUND FROM THE GROUP OF WHICH ASSESSEE WAS A PART. IT HAS ALSO BEEN CONTENDED FURTHER THAT THE LD AO HAS ERRED IN INITIATING PROC EEDINGS U/S. 153C WITHOUT POINTING OUT ANY SEIZED MATERIAL WHICH IT COULD BE SHOWN THAT THE SAID PAPER BELONG TO THE ASSESSEE SHOWING ANY UNDISCLOSED INCO ME AND FURTHER NO SATISFACTION EITHER IN THE CASE OF THE PERSON SEARC HED OR IN THE CASE OF THE ASSESSEE WAS RECORDED WITH REGARD TO ANY SUCH PAPER . 4. DURING THE COURSE OF THE APPEAL, THE APPELLANT H AS CONTENDED THAT IN THESE GROUNDS THE ASSESSEE HAS DISPUTED THE ACTION TAKEN U/S 153C, AND THEREFORE THE SUBMISSIONS FOR THE SAME ARE THEREFORE MADE IN CONSOLIDATED MANNER. IT HAS BEEN SUBMITTED THAT A SEARCH U/S 132 OF THE INC OME TAX ACT, 1961 TOOK PLACE AT THE BUSINESS PREMISES OF M/S SETHIA OILS L TD. AND SETHIA OIL INDUSTRIES LTD., AT 143 COTTON STREET, KOLKATA WHER E NO INCRIMINATING DOCUMENTS RELATING TO THE ASSESSEE WERE FOUND, AND THEREFORE THE ASSESSEE THEREFORE OBJECTED TO THE INITIATION OF PROCEEDINGS U/S 153C. ACCORDING TO THE APPELLANT, THE LD AO HAS ALSO IN THE ASSESSMENT ORD ER HAS ACCEPTED THE FACT THAT NO INCRIMINATING DOCUMENT WHICH CAN BE SAID TO BELONG TO ASSESSEE WERE FOUND OR SEIZED FROM THE BUSINESS PREMISES OF THE A SSESSEE AT 143 COTTON STREET, KOLKATA WHERE SEARCH AND SEIZURE WAS CONDUC TED U/S 132. ACCORDING TO THE APPELLANT, HOWEVER, THE LD AO HAS HOWEVER OB SERVED THAT SOME PAGES OF THE DOCUMENTS SEIZED UNDER IDENTIFICATION MARK U NDER LP SERIES WERE SEIZED WHICH BELONGED TO THE ASSESSEE AND THEREFORE JUSTIFIED THE ACTION U/S 153C. THE ASSESSEE HAS SUBMITTED THAT IN THIS CONNE CTION ATTENTION IS INVITED TO SECTION 153A WHICH APPLIES ONLY IF THE BOOKS OF ACCOUNTS, DOCUMENTS OR VALUABLE ARTICLES OR THINGS WERE FOUND OR SEIZED IN THE COURSE OF SEARCH AND WHICH BELONGS TO THIRD PERSON, THEN SUCH PAPERS ETC IS TO BE HANDED OVER TO THE LD AO ASSESSING THIRD PERSON AND THE PROVISIONS OF SECTION 153C SHALL APPLY. THEREFORE, ACCORDING TO THE LD AO THE FIRST AND FOREMOST CONDITIONS IS THAT SUCH MATERIAL SHOULD BE FOUND IN THE COURSE OF SEARCH. IT WAS SUBMITTED IN SUCH MATTER THAT HOWEVER, THE LD AO HAS COMPLETELY MISSED THE VITAL FACT THAT LP SERIES OF DOCUMENTS WERE NOT FOUND IN THE COURSE OF ANY SEARCH BUT WERE IMPOUNDED IN THE COURSE OF SURVEY AT SETHIA OIL IND USTRIES LTD. SITAPUR (UP ). IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 3 THE APPELLANT HAS IN SUPPORT OF SUCH CONTENTIONS EN CLOSED COPIES OF THE SURVEY AUTHORISATION AND COPY OF THE ANNEXURE OF IM POUNDED DOCUMENTS IN SURVEY PREPARED BY THE SURVEY PARTY, AND CLAIMED TH AT THEREFORE ON THE BASIS OF LP SERIES OF DOCUMENTS, PROCEEDINGS U/S 153A OR 153C CANNOT BE TAKEN. IT HAS BEEN SUBMITTED THAT ACCORDINGLY THE PROCEEDINGS U/S 153C IS THEREFORE BAD IN LAW AND THE ASSESSMENT IS LIABLE TO BE CANCE LLED. IT WAS FURTHER SUBMITTED THAT THE PROCEEDINGS U/S 153C OF THE INCO ME TAX ACT IS OTHERWISE ALSO BAD IN LAW SINCE IN THE CASE OF ASSESSEE, THE LD. AO DID NOT RECORDED ANY SATISFACTION IN THE ASSESSMENT RECORDS OF THE A SSESSEE AS WELL AS THE ASSESSMENT RECORDS OF M/S SETHIA OIL INDUSTRIES LTD ., THAT IMPOUNDED DOCUMENTS IN LP SERIES BELONGED TO THE ASSESSEE. IT HAS ALSO BEEN CLAIMED THAT THE PROCEEDING ARE ALSO BAD IN LAW SINCE, THOU GH THE LD AO STATES THAT THE LP SERIES OF DOCUMENTS BELONGED TO THE ASSESSEE , BUT THE SAME WERE NOT INCRIMINATING DOCUMENTS, AS ALL THESE DOCUMENTS WER E FOUND RECORDED IN REGULAR BOOKS AND EXPLANATION HAVE BEEN ACCEPTED BY THE LD. AO AND NO ADDITION ON ACCOUNT OF ANY IMPOUNDED DOCUMENTS HAVE BEEN MADE WHICH SHOWS THAT THE SAID DOCUMENTS WERE NOT INCRIMINATIN G DOCUMENTS. FINALLY, IT WAS CONTENDED THAT WHERE NO INCRIMINATING DOCUMENTS ARE FOUND OR SEIZED THE ASSESSMENT U/S 153C OVER AND ABOVE THE RETURNED INCOME CANNOT BE MADE, AS HAS BEEN DECIDED THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEERPRABHU MARKETING P LTD. IT WAS THEREFORE PLEADE D THAT THE ASSESSMENT IS LIABLE TO BE CANCELLED ON LEGAL GROUND ITSELF. 5. IN THIS MATTER, I OBSERVE THAT THE APPELLANT HAS FILED CERTAIN OBJECTIONS BEFORE THE LD. AO WHICH HAVE BEEN ADDRESSED BY THE LD AO IN THE ASSESSMENT ORDER. IT HAS TO BE SAID THAT THERE WAS A CLEAR CASE OF INCRIMINATING DOCUMENTS HAVING BEEN FOUND DURING TH E SEARCH PROCEEDINGS IN THIS CASE. FURTHER, IN VIEW OF THE PROVISIONS CONTA INED IN SECTION 292BB OF THE IT. ACT WHICH IS APPLICABLE WITH EFFECT FROM 01/04/ 2008 AND AS PER THE DEEMING PROVISIONS CONTAINED IN THE AFORESAID SECTI ON 292BB OF THE IT. ACT, WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS O R CO-OPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT, IT SHALL BE DEEM ED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO THE SERVED UPON HIM, HAS BEEN DULY SERVED. IT IS OBSERVED THAT IN THE PRESENT CAS E AS THE ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, IT IS T O BE PRESUMED THAT THE NOTICE U/S 143(2) HAS BEEN SERVED UPON THE ASSESSEE . THIS IS THE RATIO EMERGING FROM THE CASE OF HINDUSTAN TRANSPORT CO. V S. INSPECTING ASSISTANT COMMISSIONER (ALL) 189 ITR 326. WITH SUCH VIEW OF T HE MATTER, THE GROUNDS 2, 3 & 4 TAKEN BY THE ASSESSEE-COMPANY ARE FOUND TO BE UNTENABLE, AND ARE DISMISSED. 6. GROUNDS NO 5 AND 6 TAKEN BY THE APPELLANT RELATE TO THE ACTION OF THE LD AO IN ADDING BACK RS.90,00,000/- U/S 68 AS UNEXPLAINED CASH CREDITS. IT HAS BEEN CONTENDED BY THE APPELLANT THAT THE AO ERRED IN ADD ING BACK THE IMPUGNED AMOUNT OF RS.90,00,000/- U/S.68 IGNORING THE EVIDEN CES FILED BY THE ASSESSEE, AND SIMPLY RELYING ON THE STATEMENT MADE DURING THE POST SEARCH ENQUIRIES, WITHOUT ALLOWING THE ASSESSEE AN OPPORTUNITY TO CRO SS EXAMINE THE SAID PARTY SPECIFICALLY SO REQUESTED. IT HAS BEEN CONTENDED TH AT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION OF RS.90.00, 000/- WAS NOT JUSTIFIED, AS THE APPELLANT-ASSESSEE HAS DISCHARGED THE ONUS OF P ROOF OF THE CREDIT IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 4 APPEARING IN THE BOOKS OF ACCOUNTS. IT HAS ALSO BEE N CHALLENGED WITHOUT ANY PROOF THAT THE DOCUMENTS WERE FORWARDED TO THE LD. AO BY THE OFFICERS OF THE WING AFTER THE PRESCRIBED PERIOD OF 60 DAYS. 7. IN THIS MATTER I HAVE CAREFULLY PERUSED THE ACTI ON OF THE LD AO IN MAKING THE IMPUGNED ADDITION OF RS.90,00,000/- U/S 68 OF THE I NCOME TAX ACT, 1961.THE LD AO HAS RECORDED IN GREAT DETAIL THE MATTER IN TH E ASSESSMENT ORDER, BRINING FORTH THAT THE UNDISCLOSED MONEY OF THE APPELLANT H AD BEEN ROUTED BACK AS SHARE CAPITAL BY THE FACTUAL AND LEGAL MATRIX OF TH E CASE. IT IS VERY CLEAR THAT THE LD AO IS CORRECT IN CONCLUDING THAT THE ASSESSE E DID NOT HAVE THE ASSETS, INCOME OR CAPITAL TO SEEK PREMIUM AGAINST THE SHARE APPLICATION, AND THE MODUS OPERANDI HAD BEEN TAKEN ONLY TO BRING BACK TH E UNACCOUNTED MONIES. THE LD. AO HAS PLACED ON RECORD THE ENTIRE GAMUT OF FINDINGS, AND THERE IS, IN MY CONSIDERED VIEW NO FURTHER REQUIREMENT FOR ELABO RATION FROM THIS FORUM. IN MY VIEW OF THE FACTS THERE ARE ELABORATE AND DIRECT EVIDENCE TO CLEARLY INDICATE THAT THAT THE ENTIRE TRANSACTIONS UNDERTAKEN BY THE APPELLANT WERE MERELY ACCOMMODATION ENTRIES TAKEN FOR THE PURPOSE OF FIVI NG A LEGAL FACADE TO THE MONEYS WHICH WERE ENTERING THE APPELLANT'S BOOKS OF ACCOUNTS IN THE GRAB OF SHARE CAPITAL AND SHARE PREMIUM. THE LD .AO HAS VER Y CAREFULLY ANALYZED THE INFORMATION RECEIVED FROM THE INVESTIGATION WIN G, AND ALSO THE VARIOUS STATEMENTS GIVEN BY THE DIRECTORS MAIN PERSONS OF T HE DIFFERENT COMPANIES WHO HAVE PURPORTEDLY PURCHASED THE SHARES OF THE AP PELLANT COMPANY AND ALSO PAID HUGE PREMIUMS. 3. WE FIND THAT THE INSTANT LIS HAS EMANATED FROM SEARCH IN QUESTION DATED 19.03.2014 CONDUCTED IN M/S SETHIA GROUP OF CASES. THE ASSESSING OFFICER THEREAFTER RECORDED SEC. 153C SATISFACTION FOR PROC EEDING AGAINST THIS TAXPAYER AS FOLLOWS:- M/S SETHIA FISCAL PVT. LTD. PAN: AADCS6 654A A.Y : 2009-10 22.09.2015 A SEARCH & SEIZURE OPERATION U/S 132 AS WELL AS SURVEY OPERATION U/S. 133A OF THE ACT WERE CONDUCTED IN THE CASE SE THIA GROUP ON 19.03.2014 AND SUBSEQUENT DATES. M/S SETHIA FISCAL PVT. LTD. A T 143/1/1, COTTON STREET, KOLKATA IS CONNECTED WITH THIS GROUP. DURING THE CO URSE OF SEARCH, SEVERAL BOOKS OF ACCOUNTS AND DOCUMENTS WERE FOUND AND SEIZ ED SUCH AS SOL/1 TO SOL/28 LT/1(FOUND FROM FACTORY PREMISE AT PERMA, BU RDWAN), SOL/1 TO SOL/3 (FOUND FROM 2, INDIA EXCHANGE PLACE, KOLKATA, AS/B/1(FOUND AT JANKI SHAH ROAD, HASTINGS, KOLKATA) AND LP/1 TO LP/11 (FO UND FROM FACTORY PREMISES OF SOIL AT SITAPUR, UTTAR PRADESH). ON PER USAL OF THE SEIZED DOCUMENTS, IT IS FOUND THAT SEVERAL DOCUMENTS ARE R ELATED TO M/S SETHIA FISCAL PVT. LTD., MOST OF WHICH ARE LYING LP/1 TO LP/11. S OME OF THE RELATED PAGES WITH REGARD TO INVESTMENT IN FLAT RE AS UNDER: 1. PAGE NO. 5 TO 8 AND 21 TO 22 OF LP/1 2. PAGE NO 1 TO 21 AND 78 TO 96 OF LP/2 3. PAGE NO. 44 & 45 OF LP/3 IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 5 4. PAGE NO. 32 TO 109 OF LP/4 5. PAGE NO. 19 TO 20, 23 TO 39 AND 55 TO 72 OF LP/ 5 6. PAGE NO. 20 TO 43,, 44 TO 46, 56 TO 70 AND 117 TO 138 OF LP/8 7.PAGE NO. 132 TO 139 OF LP/9 8.PAGE NO. 84 TO 98 AND 112 TO 126 OF LP/10 9. PAGE NO. 16 TO 38, 43 TO 52,, 75-77 AND 150 TO 164 OF LP/11 THUS, THE UNDERSIGNED IS SATISFIED THAT THIS IS A F IT CASE FOR ISSUING NOTICE U/S 153C OF THE ACT. HENCE, NOTICE U/S. 153C ISSUED TO THE ASSESSEE COMP ANY FOR COMPLIANCE. CERTIFIED TO BE SD/- ANUP BISWAS TRUE COPY (DR.ANUP BISWAS) DCIT,CC-3(3), KOLKATA THIS FOLLOWED THE IMPUGNED SEC. 153C ASSESSMENT FRA MED ON 17.03.2016 ADDING SHARE CAPITAL / PREMIUM OF 46.50 LAC ALONG WITH SEC. 14A R.W. RULE 8D DISALLOWANCE OF 25,879/- AS UPHELD IN LOWER APPELLATE PROCEEDINGS. 4. FIRST ARGUMENT BETWEEN LEARNED REPRESENTATIVES I S QUA ABSENCE OF INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE C OURSE OF SEARCH FOR THE PURPOSE OF TESTING LEGALITY OF THE IMPUGNED SEC. 15 3C PROCEEDINGS. WE FIND THAT THE SEC. 143(1) INTIMATION IN THE TAXPAYERS C ASE CAME WAY BACK ON 07.10.2010 I.E. MUCH EARLIER THAN THE IMPUGNED SEAR CH CONDUCTED ON 19.03.2014. THE SAME ADMITTEDLY ATTAINED FINALITY S INCE THE ASSESSING OFFICER NEVER ISSUED SEC. 143(2) NOTICE. IT FURTHER EMERGES FROM THE PAPER BOOK THAT THE ASSESSEE HAD DULY PLACED ON RECORD ALL THE RELE VANT PARTICULARS OF ITS SHARE CAPITAL / PREMIUM AS WELL AS EXEMPT INCOME IN BALAN CE-SHEET, COMPUTATION AS WELL AS PROFIT AND LOSS ACCOUNT. ITS CASE THROUGHOU T HAS BEEN THAT THE ALLEGED SEIZED DOCUMENTS LP/1 TO LP/11 NOWHERE REPRESENT AN Y INCRIMINATING MATERIAL AS SEIZED FROM THE SEARCHED ASSESSEE M/S SETHIA OIL INDUSTRIES SITAPUR (UP) IN THE COURSE OF SURVEY. LEARNED REPRESENTATIVES EM PHASIZE IN FAVOUR OF THEIR RESPECTIVE PLEAS THAT THE SAID DOCUMENTS WERE FOUND IN THE COURSE OF SURVEY ONLY AS PER THE TAXPAYER AND DURING THE COURSE OF S EARCH AS PER THE REVENUES RESPECTIVELY. NO AMBIGUITY IS FOUND IN TH IS REGARD AS THE ASSESSMENT ORDER RECORDS IN FIRST PARA ITSELF THAT A SURVEY AND NOT SEARCH HAD TAKEN PLACE AT THE FACTORY PREMISES OF M/S SETHIA O IL INDUSTRIES SITAPUR (UP). IT IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 6 CAN THEREFORE BE SAFELY PRESUMED THAT THE ABOVE DOC UMENTS LP/1 TO LP/11 FORMING THE FOUNDATION OF SEC. 153C SATISFACTION AG AINST THE ASSESSEE WERE NOWHERE FOUND DURING THE COURSE OF SEARCH CONDUCTED AT THE GROUP CONCERNS PREMISES. 5. WE ALSO NOTICE THAT THE CIT(A)S FINDINGS EXTRAC TED IN PRECEDING PARAGRAPHS HAVE MADE IT CLEAR THAT THE SAID SEIZED DOCUMENTS WERE NOT IN THE NATURE OF INCRIMINATING MATERIAL WHICH COULD BE USE D AGAINST THE INSTANT TAXPAYER. WE MAKE IT CLEAR THAT THE ASSESSEES STAN D TIME AND AGAIN IN FURTHERANCE TO SEC. 153C NOTICE HAS DISPUTED THE SA ID DOCUMENTS NATURE TO BE INCRIMINATING AS PER COPIES OF NECESSARY CORRESPOND ENCE IN THIS REGARD DATED 14.10.2015, 13.11.2015 & 04.03.2016 FILED IN PAPER BOOK AT PAGES 93 TO 126. IT IS THEREFORE CLEAR THAT BOTH THE LOWER AUTHORITI ES HAVE FRAMED IMPUGNED ASSESSMENT IN THE ABSENCE OF ANY INCRIMINATING MATE RIALS FOUND OR SEIZED DURING THE COURSE OF SEARCH IN ISSUE. THIS TRIBUNAL S CO-ORDINATE BENCHS DECISION IN ACIT VS. M/S SETHIA AGROTECH LTD. IT(SS)A NO.91/KOL/2017 DECIDED ON 01.12.2017 PERTAINING TO THE VERY SEARCH HAS QUASHED SIMILAR ASSESSMENTS TO BE UNSUSTAINABLE AS UNDER:- 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE OF WHETHER THE ADDITI ON COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF A CONCLUDED PROCEEDIN G WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN T HE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON THE DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASST YEAR 2010-11 WAS ORIGINALLY COMPLETED U/S 143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT HAD EXPIRED AND HENCE IT FALLS UNDER CONCLUDED PROCEEDING , AS ON THE DATE O F SEARCH. WE HOLD THAT THE LEGISLATURE DOES NOT DIFFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. HENCE UNLESS THERE IS ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABLE TO SUCH CONCLUDED YEAR, THE STATUTE DOES NOT CONFER AN Y POWER ON THE LD AO TO DISTURB THE FINDINGS GIVEN THEREON AND INCOME DE TERMINED THEREON, AS FINALITY HAD ALREADY BEEN REACHED THEREON, AND SUC H PROCEEDING WAS NOT PENDING ON THE DATE OF SEARCH TO GET ITSELF ABATED. THE PROVISIONS OF SECTION 153A OF THE ACT ARE REPRODUCED HEREUNDER FO R THE SAKE OF CONVENIENCE :- '[ASSESSMENT IN CASE OF SEARCH OR REQUISITION IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 7 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN S ECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RE SPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SU CH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE A SSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHI CH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS:' 8.1. WE FIND THAT THE CO-ORDINATE BENCH OF DELHI TR IBUNAL IN THE CASE OF DY. CIT V. AGGARWAL ENTERTAINMENT (P.) LTD REPORTED IN [2016] 72 TAXMANN.COM 340 (DELHI - TRIB.) HAD ADDRESSED THIS ASPECT. THE RELEVANT HEADNOTES IS REPRODUCED BELOW:- 'SECTION 153A, READ WITH SECTION 143, OF THE INCOME -TAX ACT, 1961-SEARCH AND SEIZURE - ASSESSMENT IN CASE OF (IN CASE OF SECTION 143(1) ASSESSMENT)- ASSESSMENT YEAR 2004-05- WHETHER ASSESSMENT IN RESP ECT OF WHICH RETURN HAS BEEN PROCESSED UNDER SECTION 143(1), CANNOT BE REGARDED AS PENDING FOR PURPOSE OF SECTION 153A AS ASSESSING OFFICER IS NOT REQUIRED TO DO ANYTHING FURTHER ABOUT SUCH A RETURN AND, THUS, SAID ASSESSM ENT CANNOT BE REOPENED IN EXERCISE OF POWER OF SECTION 153A-HELD YES (PARAS 1 0 AND 12) (IN FAVOUR OF ASSESSEE) .' 8.2. WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/KOL/2011 DATED 9.12.2015 REPORTED IN 2016-TIOL-167-ITAT-KOL HAD EXPLAINED TH E AFORESAID PROVISIONS AS BELOW :- ' 6.4 IN OUR OPINION, THE SCHEME OF ASSESSMENT PROCEE DINGS SHOULD BE UNDERSTOOD IN THE FOLLOWING MANNER PURSUANT TO THE SEARCH CONDUCTED U/S. 132 OF THE ACT :- (A) NOTICE U/S. 153A OF THE ACT WOULD BE ISSUED ON THE PERSON ON WHOM THE WARRANT OF AUTHORIZATION U/S. 132 OF THE ACT WAS IS SUED FOR THE SIX ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH AND A SSESSMENTS THEREON WOULD BE COMPLETED U/S. 153A OF THE ACT FOR THOSE S IX ASSESSMENT YEARS. (B) IN RESPECT OF THE YEAR OF SEARCH, NOTICE U/S. 143(2 ) OF THE ACT WOULD BE ISSUED AND ASSESSMENT THEREON WOULD BE COMPLETED U/S. 143( 3) OF THE ACT. (C) IN RESPECT OF CONCLUDED ASSESSMENTS PRIOR TO THE YEAR OF SEA RCH, NO ADDITION COULD BE MADE IN THE RELEVANT ASSESSMENT YEAR UNLES S ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE RELEVANT IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 8 ASSESSMENT YEAR. (D) PURSUANT TO THE SEARCH U/S. 132 OF THE ACT, THE P ENDING PROCEEDINGS WOULD GET ABATED. IN RESPECT OF ABATED ASSESSMENTS, THE T OTAL INCOME NEEDS TO BE DETERMINED AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A AND OTHER PROVISIONS OF THE ACT. 6.4.1 THE CONCLUDED ASSESSMENTS FOR THE PURPOSE OF SECTION 153A OF THE ACT SHALL BE - (I) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY COMP LETED U/S. 143(1) AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S. 143(2) O F THE ACT HAS EXPIRED OR; (II) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY COMP LETED U/S. 143(3) OF THE ACT ; UNLESS THEY ARE REOPENED U/S. 147 OF THE ACT FOR SO ME OTHER PURPOSE IN BOTH THE SCENARIOS STATED ABOVE. 6.4.2 THE SCHEME OF ASSESSMENT PROCEEDINGS CONTEMPL ATED U/S. 153A OF THE ACT ARE TOTALLY DIFFERENT AND DISTINCT FROM THE PROCEEDINGS CONTEMPLATED U/S. 147 OF THE ACT AND THESE PROCEDURES OF ASSESSM ENT OPERATE IN DIFFERENT FIELDS AND HAVE DIFFERENT PURPOSES TO BE FULFILLED ALTOGETHER. 6.4.3 THE EXPRESSION 'ASSESS OR REASSESS' STATED IN SECTION 153A(1)(B) HAS TO BE UNDERSTOOD AS BELOW:- ' ASSESS ' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF ABAT ED ASSESSMENT YEARS IRRESPECTIVE OF THE FACT WHETHER THERE ARE AN Y INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO RELEVAN T ASSESSMENT YEARS ; ' REASSESS ' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF CONC LUDED ASSESSMENT YEARS WHERE INCRIMINATING MATERIALS WERE FOUND DURING THE COURSE OF SEARCH IN RESPECT OF THE RELEVANT ASSESSMENT YEAR. ' 8.3. WE ALSO FIND THAT RECENTLY THE HONBLE DELHI H IGH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) H ELD AS UNDER :- ' 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NO TICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE P ERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDI NG THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE LD AOS AS A FRESH EXERCISE. (III) THE LD AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPEC T OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE LD AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORD ERS FOR EACH OF THE SIX IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 9 YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AN D THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS S HOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE LD AO WH ICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEI ZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY O N THE BASIS OF SEIZED MATERIAL.' (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE . THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABAT ED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETE ASSESSMENT PROCEEDINGS. (VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE TH E ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY F OR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER M ATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE LD AO. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE LD AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY D ISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' 38. THE PRESENT APPEALS CONCERN AYS 2002-03, 2005-0 6 AND 2006-07, ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STO OD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 8.4. WE FIND THAT THE DECISION RELIED UPON BY THE L D DR IN THE CASE OF CIT VS ANIL KUMAR BHATIA REPORTED IN (2013) 352 ITR 493 (DEL) DOES NOT IN ANY MANNER ADVANCE THE CASE OF THE REVENUE AS ADMITTEDL Y THE HONBLE DELHI HIGH COURT IN PARA 24 OF ITS ORDER HAD HELD AS UNDE R:- 24. WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRI MINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. WE, THEREFORE, EXPRESS NO OPINION AS TO WHETHER SEC TION 153A CAN BE INVOKED EVEN IN SUCH A SITUATION. THAT QUESTION IS THEREFORE LEFT OPEN. 8.5. THE LD DR ALSO RELIED ON THE RECENT DECISION O F THE HONBLE KERALA HIGH COURT IN THE CASE OF E.N.GOPAKUMAR VS CIT REPO RTED IN (2016) 75 TAXMANN.COM 215 (KERALA) IN SUPPORT OF HIS CONTENTI ONS. WE FIND THAT THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HAD DUL Y CONSIDERED THE DECISIONS OF CIT VS ANIL KUMAR BHATIA REPORTED IN ( 2013) 352 ITR 493 IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 10 (DEL) ; CIT VS CHETAN DAS LACHMAN DAS REPORTED IN (2012) 211 TAXMAN 61 (DEL HC) ; MADUGULA VENU VS DIT REPORTED IN (2013) 215 TAXMAN 298 (DEL HC) ; CANARA HOUSING DEVELOPMENT C O. VS DCIT REPORTED IN (2014) 49 TAXMANN.COM 98 (KAR HC) ; FI LATEX INDIA LTD VS CIT REPORTED IN (2014) 229 TAXMAN 555 (DEL HC) ; JA I STEEL (INDIA) VS ACIT REPORTED IN (2013) 219 TAXMAN 223 (DEL HC) ; C IT VS MURLI AGRO PRODUCTS LTD REPORTED IN (2014) 49 TAXMANN.COM 172 (BOM HC) ; CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA ) LTD REPORTED IN (2015) 374 ITR 645 (BOM HC) AND ALL CARGO GLOBAL LO GISTICS LTD VS DCIT REPORTED IN (2012) 137 ITD 287 (MUM ITAT) (SB) . WE ALSO FIND THAT AGAINST THE DECISION OF THE HONB LE DELHI HIGH COURT IN 380 ITR 573 (DEL) , THE REVENUE PREFERRED SPECIAL L EAVE PETITION BEFORE THE HONBLE SUPREME COURT AND THE SAME WAS DISMISSE D BY THE APEX COURT WHICH IS REPORTED IN 380 ITR (ST.) 4 (SC). HENCE IT COULD BE SAFELY CONCLUDED THAT THE DECISION OF HONBLE DELHI HC IN THE CASE OF KABUL CHAWLA SUPRA WOULD HAVE TO BE CONSIDERED ON T HE IMPUGNED ISSUE AND IN ANY CASE, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS VEGETABLE PRODUCTS LTD REPORTED IN 88 ITR 192 (SC) HAD HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADO PTED. 8.6. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL H IGH COURT RECENTLY IN THE CASE OF PRINCIPAL CIT VS M/S SALASAR STOCK BROK ING LTD IN G.A.NO. 1929 OF 2016 ITAT NO. 264 OF 2016 DATED 24.8.2016 H AD ENDORSED THE AFORESAID VIEW OF HONBLE DELHI HIGH COURT IN KABUL CHAWLAS CASE AND ALSO PLACED RELIANCE ON ITS OWN DECISION IN THE CAS E OF CIT VS VEERPRABHU MARKETING LTD REPORTED IN (2016) 73 TAXM ANN.COM 149 (CAL HC). 8.7. WE FIND THAT THE PROVISIONS OF SECTION 132 OF THE ACT RELIED UPON BY THE LD DR WOULD BE RELEVANT ONLY FOR THE PURPOSE OF CONDUCTING THE SEARCH ACTION AND INITIATING PROCEEDINGS U/S 153A O F THE ACT. ONCE THE PROCEEDINGS U/S 153A OF THE ACT ARE INITIATED, WHIC H ARE SPECIAL PROCEEDINGS, THE LEGISLATURE IN ITS WISDOM BIFURCAT ES DIFFERENTIAL TREATMENTS FOR ABATED ASSESSMENTS AND UNABATED ASSE SSMENTS. AT THE COST OF REPETITION, WE STATE THAT IN RESPECT OF ABA TED ASSESSMENTS (I.E PENDING PROCEEDINGS ON THE DATE OF SEARCH) , FRESH ASSESSMENTS ARE TO BE FRAMED BY THE LD AO U/S 153A OF THE ACT WHICH WO ULD HAVE A BEARING ON THE DETERMINATION OF TOTAL INCOME BY CONSIDERING ALL THE ASPECTS, WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DO ES NOT HAVE ANY RELEVANCE. HOWEVER, IN RESPECT OF UNABATED ASSESSM ENTS, THE LEGISLATURE HAD CONFERRED POWERS ON THE LD AO TO JU ST FOLLOW THE ASSESSMENTS ALREADY CONCLUDED UNLESS THERE IS AN IN CRIMINATING MATERIAL FOUND IN THE SEARCH TO DISTURB THE SAID CO NCLUDED ASSESSMENT. IN OUR CONSIDERED OPINION, THIS WOULD BE THE CORREC T UNDERSTANDING OF IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 11 THE PROVISIONS OF SECTION 153A OF THE ACT, AS OTHER WISE, THE NECESSITY OF BIFURCATION OF ABATED AND UNABATED ASSESSMENTS IN S ECTION 153A OF THE ACT WOULD BECOME REDUNDANT AND WOULD LOSE ITS RELEV ANCE. HENCE THE ARGUMENTS ADVANCED BY THE LD DR IN THIS REGARD DESE RVES TO BE DISMISSED. 8.8. IN VIEW OF THE AFORESAID FINDINGS AND RESPECTF ULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOL D THAT THE ASSESSMENT FRAMED U/S 143(1) OF THE ACT FOR THE ASS T YEAR 2010-11, WHICH WAS UNABATED / CONCLUDED ASSESSMENT, ON THE D ATE OF SEARCH, DESERVES TO BE UNDISTURBED IN THE ABSENCE OF ANY IN CRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH AND ACCORDINGLY THE A DDITION MADE ON ACCOUNT OF SHARE CAPITAL U/S 68 OF THE ACT IS HEREB Y DIRECTED TO BE DELETED. SINCE THE ISSUE IS ADDRESSED ON PRELIMIN ARY GROUND OF ABSENCE OF INCRIMINATING MATERIALS, WE REFRAIN TO G IVE OUR FINDINGS ON THE MERITS OF THE ADDITION U/S 68 OF THE ACT FOR THE AS ST YEAR 2010-11. ACCORDINGLY THE GROUNDS RAISED BY THE REVENUE IN TH IS REGARD ARE DISMISSED. 6. LEARNED CIT-DR HAS TAKEN A LOT OF PAINS TO THE A BOVE DETAILED REFER TO PAPER BOOK. HE VEHEMENTLY CONTENDS THAT THE AIM AND OBJECT OF SEC. 153C IS TO ASSESS THE TOTAL INCOME OF ASSESSEE OTHER THAN T HAT SUBJECTED TO SEARCH. MR. MALLIKARJUNA ALSO HIGHLIGHTS THE FACT THAT THE SAME ASSESSING OFFICER ASSESSEE BOTH ASSESSEE AS WELL AS ITS GROUP CONCERN S AND THEREFORE THE IMPUGNED ASSESSMENT HAS TO BE UPHELD AS PER VARIOUS JUDICIAL PRECEDENT. HE ALSO SEEKS TO INVOKE SEC. 292BB OF THE ACT. WE FIND NO MERIT IN EITHER OF THE TWO CONTENTIONS. WE MAKE IT CLEAR THAT THE REVENUE HAS FAILED TO QUOTE ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEE FOUND O R SEIZED DURING THE COURSE OF SEARCH. SECTION 153C APPLIES IN CASE OF AN ASSES SEE OTHER THAN THE SEARCHED ASSESSEE IN CASE THE ASSESSING OFFICER IS SATISFIED THAT SPECIFIED NATURE OF INCOME OR ASSETS OR DOCUMENTS SEIZED OR R EQUISITIONED BELONG OR RELATE TO FORMER THAN THE LATTER TAXPAYER. THIS STA TUTORY PROVISION FURTHER MAKES IT CLEAR THAT AFTER ISSUING THE NECESSARY NOTICE, T HE ASSESSING OFFICER HAS TO ASSESS THE TOTAL INCOME OF SUCH OTHER PERSON IN THE MANNER AS PROVIDED IN SEC. 153A OF THE ACT. WE THEREFORE ACCEPT ASSESSEE S LEGAL GROUND TO HOLD THE IMPUGNED ASSESSMENT PROCEEDINGS INITIATED SEC. 153C OF THE ACT NOT VALID BY ADOPTING ABOVE CO-ORDINATE BENCHS REASONING. IT(SS)A NO.01-02/KOL/2018 AYS 09-1 0 & 10-11 M/S SETHIA FISCAL PVT. LTD. VS. ACIT, CC-3 (3), KOL. PAGE 12 7. COMING TO REVENUES ARGUMENT REGARDING APPLICABI LITY OF SEC. 292BB (SUPRA), WE ARE OF THE VIEW THAT SAME COMES INTO ON LY IN CASE OF SPECIFIED CIRCUMSTANCES BARING AN ASSESSEES CHALLENGE TO NON SERVICE OF NOTICE WITHIN THE TIME AND MANNER PRESCRIBED RATHER THAN RELEVANT FOR THE IMPUGNED JURISDICTIONAL ASPECT IN SEC. 153C ASSESSMENT PROCE EDINGS. THE ASSESSEE SUCCEEDS IN ITS FORMER APPEAL IT(SS)A 01/KOL/2018 ON LEGAL ISSUE. ITS REMAINING TWIN GROUNDS ON MERITS (SUPRA) ARE RENDER ED INFRUCTUOUS. 8. SAME ORDER TO FOLLOW ASSESSEES LATER APPEAL IT( SS)A NO.02/KOL/2018 SINCE IT HAS COME ON RECORD THAT IDENTICAL LEGAL IS SUE ON IS RAISED THEREIN. 9. THESE TWO ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 05/10/2018 SD/- SD/- ( ) (( ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 05 / 10 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S SETHIA FISCAL PVT. LTD., 143, COTTON STREET, 3 RD FL, KOLKATA-007 2. /REVENUE-ACIT, CENTRAL CIRCLE, 3(3), 110, SHANTIPAL LY, NR. RUBY HOSPITAL KOL-107 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 4,