DCIT, Central Circle-1(2), Ahmedabad V. Sanket Jitendrabhai Shah, Ahmedabad

ITSSA 265/AHD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5228 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: O P SHARMA; L P JAIN
• Keywords: Unexplained investment; Business income
• Section: 143(3); 153A; 153C

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD ( CONVENED THROUGH VIRTUAL COURT ) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER () ./ I.T(SS).A. NO. 238/AHD/2018 ( ASSESSMENT YEAR : 2009-10) & () ./ IT(SS)A NO. 265/AHD/2018 ( ASSESSMENT YEAR : 2009-10) SANKET JITENDRABHAI SHAH C-104, PUSHKAR-3 APTT., P. T. COLLEGE ROAD, PALDI, AHMEDABAD - 380007 DCIT CENTRAL CIRCLE - 1(2), AHMEDABAD / VS. & DCIT CENTRAL CIRCLE - 1(2), AHMEDABAD SANKET JITENDRABHAI SHAH C-104, PUSHKAR-3 APTT., P. T. COLLEGE ROAD, PALDI, AHMEDABAD - 380007 ./ ./ PAN/GIR NO. : BAIPS2298P ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KETAN H. SHAH WITH SHRI AMAN K. SHAH, A.RS. / RESPONDENT BY : SHRI O. P. SHARMA, CIT.DR & SHRI L. P. JAIN, SR. D.R. !' DATE OF HEARING 19/08/2020 #$%& !' / DATE OF PRONOUNCEMENT 09/10/2020 IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 2 - / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE REVENUE & ASSESSEE AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS)-11, AHMEDABAD (CIT(A) IN SHO RT), DATED 09.07.2018 ARISING IN THE ASSESSMENT ORDER DATED 28 .12.2016 PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) R.W.S . 153A(1)(B) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 20 14-15. IT(SS)A NO. 238/AHD/2018 (ASSESSEES APPEAL) 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE READ HE REUNDER: 1 THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN PARTLY CONFIRMING THE ASSESSMENT ORDER PASSED BY THE ASSES SING OFFICER U/S. 143(3) OF THE ACT. 2 THE LD. C.I.T. (A) HAS ERRED IN FACTS AND CIRC UMSTANCES AND IN LAW IN CONFIRMING ADDITION OF RS.37,07,242/- ON MER IT OUT OF TOTAL ADDITION OF RS.4,11,06,995/- MADE BY THE A.O. ON ACCOUNT OF SALE OF SHARES TREATED AS UNEXPLAINED RECEIPT IN SPIT OF THE LD. CIT(A) DELETING THE ENTIRE ADDITION IN THE SAME ORDER ON LEGAL GROUND FOLLOWING THE BINDING DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT-4 VS. SAUMYA CONSTRUCTION PVT. LTD. (387 ITR 529) (GUJ.) AS NO INCRIMINATING DOCUMENT WAS FOUND DURING THE SEARCH. IT(SS)A NO. 265/AHD/2018 (REVENUES APPEAL) 3. THE GROUND OF APPEAL RAISED BY REVENUE READS HER EUNDER: 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) HAS ERRED IN LAW AND/OR ON FACTS I N DELETING THE ADDITION OF RS.4,11,06,995/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED RECEIPTS FROM SHARE TRANSACTIONS. IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 3 - 4. BOTH ASSESSEE AND REVENUE ARE IN CROSS APPEALS A GAINST THE ORDER OF THE CIT(A). WHEREAS THE REVENUE HAS CHALL ENGED THE ACTION OF THE CIT(A) FOR DELETION OF THE ADDITIONS MADE BY THE AO TOWARDS UNEXPLAINED SHARE TRANSACTIONS, THE ASSESSE E HAS CHALLENGED THE ACTION OF THE CIT(A) IN CONFIRMING THE PARTIAL ADDITIONS MADE BY THE AO. 5. THE CAUSE OF ACTION AND THE ISSUE INVOLVED BEING COMMON IN BOTH THE APPEALS, BOTH APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 6. AS PER THE GROUNDS OF APPEAL RAISED BY THE REVEN UE, THE AO HAS ESSENTIALLY CHALLENGED THE ACTION OF THE CIT(A) IN DELETING THE ADDITIONS OF RS.4,11,06,995/- MADE BY THE AO ON ACC OUNT OF UNEXPLAINED RECEIPTS FROM SHARE TRANSACTIONS. ON T HE OTHER HAND, AS PER THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE, T HE ASSESSEE HAS CHALLENGED THE PARTIAL SUSTAINENCE OF ADDITION OF R S.37,07,242/- ON MERITS OUT OF TOTAL ADDITIONS OF RS.4,11,06,905/- M ADE BY THE AO ON ACCOUNT OF SALE OF SHARES TREATED AS UNEXPLAINED RE CEIPTS. 8. THE ASSESSEE HAS ALSO MOVED AN ADDITIONAL GROUND WHICH READS AS UNDER: 1. BOTH THE LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN FRAMING ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A IGNORIN G FACT THAT THE APPROVAL U/S.153D GIVEN BY THE JCIT IS WITHOUT APPLICATION OF MIND AND ACCORDINGLY ASSESSMENT IS REQUIRED TO B E QUASHED. IT BE SO HELD NOW. 9. THE PRAYER FOR ADMISSION OF ADDITIONAL GROUNDS N OTED ABOVE WHICH ARE NOT SET FORTH IN MEMORANDUM OF APPEAL ARE BEING ADMITTED FOR ADJUDICATION IN TERMS OF RULE 11 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 OWING TO THE FACT THAT OBJECT IONS RAISED IN THE IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 4 - ADDITIONAL GROUND ARE LEGAL IN NATURE AND CHALLENGE S THE JURISDICTION OF THE AO FOR MAKING ADDITIONS/DISALLOWANCES AND FO R SUCH OBJECTIONS THE RELEVANT FACTS ARE STATED TO BE EMAN ATING FROM EXISTING RECORDS IN THE LIGHT OF DECISION OF THE HO NBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (SC). 10. BRIEFLY STATED, THE ASSESSEE IN THE INSTANT CAS E FILED ORIGINAL RETURN OF INCOME FOR AY 2009-10 UNDER S.139 OF THE ACT ON 22.06.2010 DECLARING TOTAL INCOME OF RS.1,26,640/-. THEREAFTER, A SEARCH WAS CONDUCTED IN GROUP CASES ON 04.12.2014 W HERE ASSESSEE WAS ALSO COVERED IN SEARCH ACTION. CONSEQUENT UPON SEARCH, A NOTICE UNDER S.153A OF THE ACT WAS ISSUED ON THE AS SESSEE. IN RESPONSE TO THE NOTICE UNDER S.153A OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1,35, 844/- ON 30.11.2016. THE ASSESSMENT WAS THEREAFTER COMPLETE D UNDER S.143(3) R.W.S. 153A OF THE ACT. WHILE FRAMING THE ASSESSMENT UNDER S.153A OF THE ACT, THE AO INTER ALIA OBSERVED THAT AS PER INDIVIDUAL TRANSACTION STATEMENT (ITS) DETAILS AVAI LABLE WITH THE DEPARTMENT SYSTEM, IT IS NOTICED THAT THE ASSESSEE HAS PURCHASED AND SOLD SHARES OF VARIOUS SCRIPS AMOUNTING TO RS.3,83, 99,753/- AND RS.4,11,06,995/- RESPECTIVELY MAINLY THROUGH ARCHI SHARES & STOCK BROKERS PVT. LTD. IN RESPONSE TO THE QUERY RAISED BY AO ON THE TRANSACTIONS, THE ASSESSEE SUBMITTED THAT BUSINESS OPERATION OF ARCHI SHARES & STOCK BROKERS PVT. LTD. IS HITHERTO CLOSED WHERE THE SHARES WERE KEPT IN POOL ACCOUNT. THE BANK ACCOUNT OF THE ASSESSEE WAS HOWEVER FILED. THE AO WAS DISSATISFIED WITH THE LA CK OF EXPLANATION ON THE PURCHASE AND SALE TRANSACTIONS A ND ACCORDINGLY ADDED A SUM OF RS.4,11,06,995/- BEING GROSS VALUE O F SALE OF SHARES AS RECORDED IN ITS STATEMENT BY A VERY BRIEF ORDER AND WITHOUT ANY CROSS VERIFICATIONS FROM EXCHANGE OR THE BROKER. IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 5 - 11. AGGRIEVED BY THE AFORESAID ACTION, THE ASSESSEE PREFERRED APPEAL AGAINST THE ASSESSMENT ORDER BEFORE THE CIT( A). THE CIT(A) FOUND MERIT IN THE LEGAL SUBMISSIONS MADE BY THE AS SESSEE ON LACK OF JURISDICTION OF THE AO TO ASSESS SUCH ALLEGED UN EXPLAINED SHARE TRANSACTIONS IN THE HANDS OF THE ASSESSEE IN THE PR OCEEDINGS UNDER S.153A OF THE ACT TOTALLY UNCONNECTED TO ANY INCRIM INATING MATERIAL FOUND IN THE COURSE OF SEARCH WHERE ORIGINAL ASSESS MENT STOOD CONCLUDED AND WAS NOT PENDING AT THE TIME OF SEARCH . THE RELEVANT OPERATIVE PARA OF THE ORDER OF THE CIT(A) ON LEGAL GROUND IS REPRODUCED HEREUNDER: 5. SUBMISSION OF THE APPELLANT AND THE ASSESSMENT ORDER HAS BEEN CAREFULLY CONSIDERED. FIRST GROUND OF APPEAL IS OF GENERAL NATURE, HENCE, DOES NOT NEED ADJUDICATION. THEREFORE, IT IS DISMISSED . FACTS OF THE CASE IN BRIEF ARE THAT THE APPELLANT FILED R ETURN OF INCOME ON 22.6.2010 SHOWING INCOME OF RS.1,26,640/-. THE APPE LLANT WAS SEARCHED U/S.132 OF THE ACT ON 4.12.2014. IN RESPON SE TO THE NOTICE ISSUED U/S,153A OF THE ACT, THE APPELLANT FILED RET URN SHOWING INCOME OF RS.1,35,844/-. THE AO STATED THAT AS PER THE IND IVIDUAL TRANSACTION STATEMENT (ITS) OF THE APPELLANT AVAILA BLE WITH THE DEPARTMENT, THE APPELLANT PURCHASED SHARES WORTH RS .3,83,99,753A AND SOLD SHARES WORTH RS.4,11,06,995/- DURING THE Y EAR. THE AO ASKED FOR EVIDENCE TO PROVE THE GENUINENESS OF THES E TRANSACTIONS. THE APPELLANT STATED THAT ARCHI SHARES & BROKERS P LTD, BROKER THROUGH WHICH TRANSACTION CARRIED OUT HAS BEEN CLOS ED. THE APPELLANT SUBMITTED BANK ACCOUNT TO PROVE THAT THE TRANSACTIONS WERE SHOWN IN THE REGULAR BANK ACCOUNT. THE AO DID NOT F IND THE EXPLANATION SATISFACTORY AND MADE ADDITIONS OF TOTA L SALES CONSIDERATION OF RS.4,11,06,995/-. 5.1 THE APPELLANT CONTENDED THAT HE IS IN THE BUSINESS OF TRADING IN SHARES & SECURITIES. HE PURCHASED SHARES OF RS.3 ,83,99,753/- AND SOLD FOR RS.4,11,06,995/-. HE HAS SHOWN PROFIT OF R S.68,140/- ON SHARE TRADING IN THE PROFIT & LOSS ACCOUNT. HE COUL D NOT SUBMIT EVIDENCE FROM ARCHI SHARES & STOCK BROKER P LTD, BR OKER THROUGH WHICH TRANSACTION TOOK PLACE, AS IT IS CLOSED-NOW-. THE-APPELLANT FURTHER CONTENDED THAT ADDITIONS CANNOT BE MADE BEC AUSE NO INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH. WHEN NO INCRIMINATING DOCUMENT IS FOUND DURING THE COURS E OF SEARCH, ADDITIONS IN THE ASSESSMENT MADE U/S.153A OR 153C O F THE ACT CANNOT BE MADE. THE APPELLANT CITED SEVERAL CASE LAWS IN S UPPORT OF THIS CONTENTION. THE LEADING JUDGEMENT ON THIS ISSUE IS FROM JURISDICTIONAL HON'BLE HIGH COURT OF GUJARAT, AHRNEDABAD IN THE CASE OF CIT-4 V/S SAUMYA CONSTRUCTION P LTD 387 JTR 529 (GUJ). IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 6 - 5.2 FACTS OF THE CASE WITH THE CASE LAWS CITED UPON HAVE BEEN CAREFULLY CONSIDERED. IT IS UNDISPUTED FACT THAT TH ERE IS NO MENTION OF ANY INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF SEARCH IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH ADDITIONS H AVE BEEN MADE. ADDITIONS HAVE BEEN MADE ON THE BASIS OF ITS DATA, WHICH WAS ALREADY AVAILABLE WITH THE DEPARTMENT. AS DECIDED B Y VARIOUS HIGHER JUDICIAL AUTHORITIES & MENTIONED IN THE APPELLANT'S SUBMISSION, ADDITION IN THE ASSESSMENT MADE- U/S.153A/153C CANN OT BE MADE, IF NO INCRIMINATING DOCUMENT IS FOUND DURING THE COURS E OF SEARCH. BY FOLLOWING THE BINDING JUDGEMENT OF HON'BLE HIGH COU RT OF GUJARAT, AHMEDABAD IN THE CASE OF CIT-4 V/S SAUMYA CONSTRUCT ION P LTD 387 ITR 529 (GUJ), THE ADDITIONS MADE BY THE AO ARE NOT FOUND LEGALLY SUSTAINABLE, HENCE, DELETED. 12. THE CIT(A) HOWEVER ALSO SIMULTANEOUSLY ADDRESSE D THE GRIEVANCE OF THE ASSESSEE ON MERITS. IT WAS OBSERV ED BY THE CIT(A) THAT THE DIFFERENCE BETWEEN THE SALE AND PURCHASE O F SHARE STANDS AT RS.27,07,242/- WHICH IS UNREPORTED PROFIT LIABLE TO BE TAXED. IN THE SIMILAR VEIN, THE CIT(A) ALSO ESTIMATED UNEXPLAINED INVESTMENT TO THE TUNE OF RS.10 LAKHS IN RELATION TO SUCH TRANSAC TIONS REPORTED IN ITS STATEMENT. THUS, ON MERIT, THE CIT(A) SUSTAINE D THE ADDITIONS OF RS.37,07,242/- AND REMAINING ADDITION OF RS.3,73 ,99,753/- WAS DELETED ON MERITS. THE RELEVANT OPERATIVE PARA OF THE ORDER OF THE CIT(A) ON MERITS IS ALSO REPRODUCED HEREUNDER: 6. ON MERIT, THE ADDITION OF TOTAL SALES CONSIDERA TION MADE BY THE AO ARE FOUND EXCESSIVE. IT IS AVAILABLE IN THE ITS ITSELF THAT SHARES WORTH RS.3,83,99,753/- WERE PURCHASED AND SHARES WO RTH RS.4,11,06,995/- WERE SOLD. THEREFORE, IT IS REASON ABLE TO CONSIDER DIFFERENCE OF THESE TWO FIGURES I.E. RS.27,07,242/- AS PROFIT ON SHARE TRANSACTION AND SAME SHOULD BE CONSIDERED INCOME OF THE APPELLANT. IT IS ALSO REASONABLE TO HOLD THAT THE APPELLANT HA D MADE INITIAL INVESTMENT IN TO CARRY OUT THESE TRANSACTIONS, HENC E, ESTIMATED RS.10 LAKH IS CONSIDERED AS INITIAL INVESTMENT. THEREFORE , ON MERIT, ADDITIONS OFRS.37,07,242/- (27,07,242+10,00,000) AR E CONFIRMED . REMAINING ADDITIONS OF RS.3,73,99,753/- ARE DELETED . ON MERIT, THIS GROUND OF APPEAL IS PARTLY ALLOWED . 13. AGGRIEVED BY THE DELETION OF ENTIRE ADDITION ON LEGAL GROUND, THE REVENUE HAS PREFERRED APPEAL BEFORE THE TRIBUNA L. LIKEWISE, THE ASSESSEE HAS ALSO MOVED AN APPEAL BEFORE THE TRIBUN AL ON THE IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 7 - IMPUGNED ACTION OF THE CIT(A) WHEREBY PARTIAL DISAL LOWANCE WAS CONFIRMED ON ASPECTS OF MERITS. 13.1 WHEN THE MATTER WAS CALLED FOR HEARING, THE LE ARNED DR FOR THE REVENUE RELIED UPON THE ACTION OF THE AO IN APP LYING THE PROVISIONS OF SECTION 153A OF THE ACT AND SUBMITTED THAT THE PRESENT SCHEME UNDER S.153A OF THE ACT FULLY ENABLES THE AO TO MAKE ADDITIONS BOTH ON ACCOUNT OF INCRIMINATING MATERIAL AS WELL AS OTHER MATERIAL NOTED OR FOUND IN THE COURSE OF ASSESSMENT . IT WAS SUBMITTED THAT ONCE A SEARCH IS CONDUCTED, LAW ENJO INS ISSUANCE OF NOTICE UNDER S.153A OF THE ACT AND COMPLETE THE ASS ESSMENT UNDER S.153A OF THE ACT AS PER THE SCHEME ENVISAGED IN TH E ACT. IT WAS SUBMITTED THAT NO FAULT CAN BE FOUND IN THE ACTION OF AO AS WRONGLY DONE BY THE CIT(A). 13.2 THE LEARNED AR, ON THE OTHER HAND, DEFENDED TH E ACTION OF THE CIT(A) ON LEGAL POINT AND SUBMITTED AT THE OUTSET T HAT THE ACTION OF THE AO IS SOLELY BASED ON THE TRANSACTIONS REPORTED IN ITS STATEMENT WHICH WAS ALREADY AVAILABLE WITH THE DEPARTMENT MUC H BEFORE SEARCH. THE ACTION OF THE AO IN MAKING ADDITIONS H AS NO RATIONAL CONNECTION OR LIVE LINK WITH MATERIAL FOUND IN THE COURSE OF SEARCH CARRIED OUT UNDER S.132 OF THE ACT ON 04.12.2014 IN THE CASE OF ASSESSEE. THE LEARNED AR SUBMITTED THAT IN PURSUAN CE OF A NOTICE UNDER S.153A OF THE ACT FOR AY 2009-10 IN APPEAL, T HE ASSESSMENT WAS ENTIRELY BASED ON APPRECIATION OF TRANSACTIONS FIGURED IN ITS STATEMENT. THE LEARNED AR ASSERTED THAT THIS KIND OF ADDITION, IF ANY, BASED ON ROUTINE INFORMATION IN POSSESSION OF THE DEPARTMENT FROM VARIOUS SOURCES ARE SUBJECT MATTER OF REGULAR ASSESSMENT. SUCH ACTION DOES NOT RESONATE WITH THE SCHEME OF SEARCH ASSESSMENT UNDER S.153A OF THE ACT DE HORS REFERENCE TO ANY INCRIMINATING MATERIAL IN THIS REGARD. THE LEARNED AR FURTHER EM PHASIZED THAT IN IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 8 - THE ABSENCE OF INCRIMINATING MATERIAL, NO ADJUSTMEN T IN THE RETURNED INCOME IS PERMISSIBLE UNDER S.153A OF THE ACT IN A CONCLUDED ASSESSMENT. 13.3 EXPANDING FURTHER, THE LEARNED AR NEXT SUBMITT ED THAT THE RETURN FOR THE AY 2009-10 IN QUESTION HAD BECOME TI MEBARRED AND WAS NOT PENDING FOR ASSESSMENT AT THE TIME OF SEARC H. THEREFORE, THE REGULAR ASSESSMENT/DEEMED ASSESSMENT STOOD CONC LUDED AT THE TIME OF SEARCH RELATING TO AY 2009-10 IN QUESTION S URVIVED AND DID NOT GET ABATED. THE LEARNED AR SUBMITTED THAT IN T HESE FACTS, IT IS NOT PERMISSIBLE FOR AO TO INVOKE AUTHORITY VESTED U NDER S.153A OF THE ACT TO INDULGE IN MAKING ROUTINE EXAMINATION OF VARIOUS ITEMS INCOME AND EXPENDITURE WHICH HAS NO CO-RELATION TO INCRIMINATING MATERIAL UNEARTHED IN THE COURSE OF SEARCH, IF ANY. FOR THIS PROPOSITION, THE LEARNED AR RELIED UPON THE DECISIO N OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT VS. SAUMYA CONSTRUCTION (P.) LTD. [2016] 387 ITR 529 (GUJ) AND HOST OF OTHER DECISIONS OF VARIOUS HIGH COURTS HOLDING SO. IT WAS THUS CONTEN DED BY THE LEARNED AR FOR THE ASSESSEE THAT THE CIT(A) HAS RIG HTLY DELETED THE ENTIRE ADDITION MADE BY THE AO OWING TO LACK OF JUR ISDICTION IN THE ABSENCE OF ANY INCRIMINATING MATERIAL ALLEGED TO BE FOUND IN THE COURSE OF SEARCH. THE LEARNED AR ACCORDINGLY ASSER TED THAT ENTIRE ADDITIONS ON ACCOUNT OF UNEXPLAINED SHARE TRANSACTI ONS ARE OUTSIDE THE AMBIT OF SECTION 153A OF THE ACT AND THUS BAD I N LAW AS RIGHTLY HELD BY THE CIT(A) ON THE TOUCHSTONE OF JURISDICTIO N. 13.4 ADVERTING FURTHER, THE LEARNED AR POINTED OUT THAT THE APPROVAL TAKEN BY THE AO AS MANDATED UNDER S.153D O F THE ACT IS ALSO HOLLOW AND WITHOUT THE APPLICATION OF MIND OF THE DESIGNATED AUTHORITY. ON BEING CALLED BY THE BENCH TO SUPPORT THE ALLEGATION OF NON-APPLICATION OF MIND, THE LEARNED AR FOR THE ASS ESSEE SIMPLY IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 9 - MOOTED THAT THE APPROVAL WAS OBTAINED ON THE SAME D AY OF COMMUNICATION AND AS A COROLLARY, IT HAS TO BE PRES UMED TO BE WITHOUT APPLICATION OF MIND. WE DISPOSE OF THE OBJ ECTIONS RAISED BY WAY OF ADDITIONAL GROUND STRAIGHTWAY AGAINST THE AS SESSEE AS WE SEE NO MERIT IN SUCH LINE OF ARGUMENT. THE QUANTIFICAT ION OF TIME FOR APPLICATION OF MIND IS A DIFFICULT TASK. NO PRESUM PTION CAN FLOW ADVERSE TO THE AUTHORIZED PERSON ONLY ON THE GROUND THAT THE TASK HAS BEEN REPORTEDLY PERFORMED SWIFTLY. THE SUPERVIS ING OFFICERS ARE NORMALLY KEPT ABREAST OF DEVELOPMENT IN THE ASSESSM ENT ROUTINELY AND ARE OFTEN PRIVY TO FACTUAL ASPECTS. NO COGENT E VIDENCE DIRECT OR CIRCUMSTANTIAL IS BEFORE US TO HOLD AGAINST THE DES IGNATED AUTHORITY UNDER S.153D OF THE ACT. WE THUS SEE NO SUBSTANCE IN THE PLEA RAISED ON BEHALF OF THE ASSESSEE AND THUS DISMISS T HE ADDITIONAL GROUND IN SUMMARILY. 14. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW AND EXAMINED THE MERITS OF LEGAL CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE WHILE SUPPORTING THE ORDER OF THE CIT(A). IT IS THE CASE OF THE ASSESSEE THAT THE ADDITIONS/DISALLOWANCES COULD NOT BE MADE IN THE ASSESSMENT FRAMED UNDER S.153A OF THE ACT DE HORS REFERENCE TO ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF S EARCH IN THIS REGARD. IT IS FURTHER THE CASE OF THE ASSESSEE THA T THE ADDITIONS /DISALLOWANCES MADE HAVE NO NEXUS WHATSOEVER WITH A NY MATERIAL OF INCRIMINATING NATURE FOUND IN THE COURSE OF SEARCH WHICH IS THE GENESIS OF PROCEEDINGS UNDER S.153A OF THE ACT IN T HE PRESENT CASE. THE ADDITIONS HAVE BEEN MADE BASED ON A CONTEMPORAN EOUS ITS STATEMENT WHERE CERTAIN DATA ARE ROUTINELY COLLECTE D AND COLLATED AS A MATTER OF COURSE INDEPENDENT OF THE SEARCH. 14.1 THE PLEA OF THE ASSESSEE THUS HINGES AROUND ON E PERTINENT LEGAL POINT AS TO WHETHER WHILE MAKING ASSESSMENT U NDER S.153A OF IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 10 - THE ACT, THE REVENUE IS ENTITLED TO INTERFERE WITH THE ASSESSMENT CONCLUDED EITHER UNDER S.143(1) OR UNDER S.143(3) O F THE ACT AND NOT PENDING AT THE TIME OF SEARCH IN THE ABSENCE OF ANY INCRIMINATING MATERIAL UNEARTHED AS A RESULT OF SEARCH. 14.2 ON A BARE PERUSAL OF THE ASSESSMENT ORDER AND THE APPELLATE ORDER PASSED BY THE CIT(A), WE FIND TOTAL ABSENCE O F REFERENCE TO ANY INCRIMINATING MATERIAL WHICH MAY HAVE ANY BEARI NG TO IMPUGN ADDITIONS/DISALLOWANCES. ON THE CONTRARY, IT IS MA NIFEST THAT THE IMPUGNED ADDITION HAS BEEN MADE BASED ON APPRECIATI ON OF CERTAIN DATA ROUTINELY POURED INTO THE DEPARTMENT SYSTEM NA MED AS INDIVIDUAL TRANSACTION STATEMENT (ITS) UNCONNECTED TO SEARCH. 14.3 IN THE BACKDROP OF FACTS NARRATED ABOVE, WE SE E NO ERROR IN THE VIEW TAKEN BY THE CIT(A) THAT IMPUGNED ADDITION MAD E BY THE AO IS CLEARLY BEYOND THE SCOPE OF AUTHORITY VESTED UNDER S.153A OF THE ACT OWING TO ABSENCE OF ANY INCRIMINATING MATERIAL OR EVIDENCE DEDUCED AS A RESULT OF SEARCH. THE CIT(A) HAS RIGH TLY ADJUDICATED THE LEGAL ISSUE EMANATING ON THE FACTS AVAILABLE ON RECORD THAT IN THE ABSENCE OF INCRIMINATING MATERIAL/EVIDENCE, THE ADDITIONS/DISALLOWANCES CANNOT BE SUSTAINED WITHIN THE PALE OF SECTION 153A OF THE ACT IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR.CIT VS. SAUMYA CONSTRUCTION (P.) LTD. [2016] 387 ITR 529 (GUJ) AND HOST OF OTHER JUDICIAL PRONOUNCEMENTS ECHOING THE SAME VIEW IN CH ORUS. 14.4 WE THUS DECLINE TO INTERFERE WITH THE ORDER OF THE CIT(A) ON THE LEGAL GROUND FOR LACK OF JURISDICTION FOR SUCH ADDITIONS. 14.5 IN THIS VIEW OF THE MATTER, WE DO NOT INTEND T O ADJUDICATE THE PARTIAL SUSTENANCE OF ADDITION ON MERITS AS CHALLEN GED BY THE IT(SS)A NOS. 238 & 265/AHD/18 (SANKET J. SHAH] A.Y. 2009-10 - 11 - ASSESSEE SINCE THE ASSESSEE IS NO LONGER PREJUDICED OWING TO FULL RELIEF GRANTED BY CIT(A) ON LACK OF COMPETENCE OF A O TO MAKE SUCH ADDITIONS AT ALL WITHIN THE SWEEP OF SECTION 153A O F THE ACT. 15. IN THE RESULT, THE CAPTIONED APPEAL OF THE REVE NUE IS DISMISSED WHEREAS THE CROSS APPEAL OF THE ASSESSEE DISMISSED AS INFRUCTUOUS. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMA R KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD: DATED 09/10/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED ON 09/10/2020