Shri Jayanatilal Dalsukhbhai Panchal, Vadodara V. The Dy.CIT.,Cent.Circle-1, Vadodara

ITSSA 268/AHD/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8090 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OZA
• Keywords: Loose papers; Question of law; Validity of assessment; Reassessment proceedings
• Section: 147; 131; 148; 132; 143(3); 153A; 143(1); 143(2); 139(1); 158BC; 153; 153C

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ायपी “ए” अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD (through web-based video conferencing platform) ] ] BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER IT(SS)A Nos. 265 & 266/Ahd/2019 Assessment Years : 2012-13 & 2013-14 Pranav Jayantibhai Panchal, 17, Kunj Society, Alkapuri, Vadodara-390007 PAN : ADXPP 0629 C Vs Dy. Commissioner of Income-Tax, Central Circle-1, Vadodara IT(SS)A Nos. 268 & 269/Ahd/2019 Assessment Years : 2012-13 & 2013-14 Jayantilal Dlsukhbhai Panchal, 17, Kunj Society, Alkapuri, Vadodara-390007 PAN : ADXPP 0631 J Vs Dy. Commissioner of Income-Tax, Central Circle-1, Vadodara अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸/ (Appellant) 灹त् 灹त् 灹त् 灹त् यथ牸 यथ牸यथ牸 यथ牸/ (Respondent) Assessee by : Shri S.N. Soparkar, Sr. Advocate Shri Parin Shah, AR Shri Mukund Bakshi, AR Revenue by : Shri Virendra Oza, CIT-DR सुनवाई क琉 तारीख/D a t e o f He a r i n g : 1 2 / 1 0 / 2 0 2 1 घोषणा क琉 तारीख /Da te of P r on o u n c e m e n t: 2 2 / 1 1 / 2 0 2 1 आदेश आदेशआदेश आदेश/O R D E R PER RAJPAL YADAV, VICE PRESIDENT : The appellants are father and son. Their appeals for Assessment Years 2012-13 and 2013-14 were decided by the learned Commissioner of Income-Tax (Appeals)-12, Ahmedabad [“CIT(A)” in short] by separate orders passed in the case of each assessee on 14 th March 2019. Hence, by way of the present four appeals, they are impugning the two orders of the learned CIT(A) passed on their respective appeals for Assessment Years 2012-13 and 2013-14. IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 2 2. The facts on all vital points are common in all these appeals; therefore, for the facility of reference, we are taking up the facts mainly from IT(SS)A No. 268/Ahd/2019 in the case of Shri Jayantilal Dalsukhbhai Panchal. The grounds of appeal taken by both the assessees are descriptive and argumentative in nature. In brief, they have raised two fold of grievances. Under the first fold of grievance, the assessee have challenged the validity of assessment order passed under Section 153A of the Income- Tax Act, 1961 (“the Act” in short) in their cases for both the assessment years. Under the second fold of grievance, they have challenged the addition made on account of alleged allegation of payment of “on-money” for purchase of land. 3. The learned Counsel for the assessee, at the outset, argued only the first fold of contention, i.e. validity of assessment order passed under Section 153A of the Act. We have heard these appeals on 12 th October 2021 and passed an interim order whereby we took cognizance of the submissions made by the learned Counsel for the assessee and the stand of the Revenue. The order dated 12 th October 2021 reads as under:- “The present four appeals are directed at the instance of two assessees, i.e. father and son namely Jayantibhai Dalsukhbhai Panchal & Pranav Jayantibhai Panchal for Assessment Years 2012-13 and 2013-14. 2. The learned Counsel for the assessee submitted that learned CIT(A) has decided the appeals of both the assessees by separate orders on 14.03.2019 for Assessment years 2012-13 and 2013-14. The assessees have taken eight grounds of appeal. They have contended that the learned CIT(A) has erred in confirming the action of the Assessing Officer of making addition to the returned income under Section 153A of the Income-tax Act despite the fact that no incriminating material was found during the course of search. The learned Counsel for the assessee, while impugning the orders of the Revenue Authorities, contended that there was a survey in the case of Rashmikant Bhatt Group on 09.01.2013 and certain incriminating materials related to the IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 3 assessees alleged to have been found and impounded. Subsequently, a search was conducted upon the assessees on 13.11.2014. On the basis of alleged incriminating material found at the premises of third person namely Rashmikant Bhatt Group on 09.01.2013, a notice under Section 148 was issued for reopening of the assessments in the cases of both the assessees for Assessment Years 2012-13 and 2013-14. However, somehow, the proceedings were not culminated to logical end and, in between, notice under Section 153A of the Act was issued on 16.09.2015. He further submitted that on the returns filed by the assessees under Section 139(1), a notice under Section 143(2) of the Act could be issued for scrutinizing those returns by 30.09.2013 in AY 2012-13 and 30.09.2014 in AY 2013-14. No notice under Section 143(2) was issued in these years. The first notice has been issued under Section 148 which is dated 27.04.2015. Therefore, on the date of search, no assessment proceedings or re-assessment proceedings were pending in these assessment years qua the assessees. The assessments are to be treated as completed assessments. The proceedings will not abate; hence, addition under Section 153A of the Act could only be made if some incriminating material was found during the course of search. This aspect was argued elaborately before the learned First Appellate Authority and the learned First Appellate Authority took cognizance of all these facts in the submissions as well as in the decision. But, ignoring the fact of service of notice under Section 148 on 27.04.2015, the learned First Appellate Authority has concluded that reassessment proceedings was pending; therefore, that would abate and assessments in these two years would be passed as if a regular assessments. The learned Counsel for the assessee took us through the findings of the learned CIT(A) in paragraph No.5 to 5.3 which read as under:- “5. I have perused the assessment orders and the appellant's submissions. 5.1 In the facts and circumstances of the case it appears appropriate that the grounds No. 1 and 2 are taken up together wherein the additions made to the total income in the impugned assessment u/s 153A have been challenged on the ground that there was no incriminating material found during the course of search and that as the AO has relied upon the documents found during the course of search in the case of other party, the assessment ought to have been done invoking the provisions of section 153C. 5.2 In these regards, no doubt that as of now it is the law (as laid down by various Courts and Tribunals including the jurisdictional High Court of Gujarat and jurisdictional ITAT Ahmedabad, some of which are relied upon by the appellant and are mentioned in the submissions) that IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 4 pursuant to a search, additions to the total income for the elapsed assessment years (the years for which either the assessments/ re- assessments have been completed or the time limits for issue of notice u/s 143(2) have elapsed) can be made by the AO only on the basis of the incriminating materials (relevant to such additions made) found during the course of search. In other words no addition to the total income can be made in the re-assessment u/s 153A/153C if there are no relevant incriminating materials. These constraints laid down by the Courts and the Tribunals, to my mind, are not applicable for the remaining assessment years other than the elapsed assessment years. 5.3 Now from the assessment orders for A.Y. 2012-13 as well as the appellant's submission it is seen that during the survey proceeding carried out in Samarpan Infrastructure Pvt. Ltd. on 09/01/2013 (as part of search in Rashmikant Bhatt Group of cases on 09/01/2013) some incriminating materials related to the appellant was found and impounded. Based on these impounded material the case of the appellant was reopened u/s 147 for the A.Y. 2012-13 and A.Y. 2013-14 by the then AO, the DCIT, CC-2, Baroda after duly recording the reasons thereof. While the assessment u/s 147 was still pending a search u/s 132 was carried out in the Narayan Realty Group of cases on 13/11/2014 wherein the appellant was also covered. Pursuant to this, search notice u/s 153A was issued for various years including A.Y. 2012-13. As the assessment for the A.Y, 2012-13 was pending, the proceeding abated. There should not be any dispute by the appellant that the assessment proceedings for A.Y. 2012-13 have not abated u/s 153A and therefore the additions to be made are not required to be restricted to the incriminating material found during the course of search in Narayan Realty Group. The assessment and additions made for the A.Y. 2012-13 are not hit (against the Revenue) by the case laws relied upon by the appellant in this regard. Because of the search in the Narayan Realty Group of case wherein the appellant himself was searched, the pending assessment proceedings u/s 147 (initiated on account of incriminating material found during the course of survey of Samarpan Infrastructure Pvt. Ltd, on 09/01/2013) get merged {in other words abates) with the later assessment proceedings initiated u/s 153A (on account of search conducted in the case of appellant himself). In view of these undisputed facts, I see no justification in the grounds of the appellant disputing the additions made by the AO based on the incriminating material found during the course of earlier survey. The appellant is not at all protected by -the case laws relied upon by him. The appellant is not at all justified in raising the bogey that the AO has erred in making additions to the return income for IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 5 the A.Y. 2012-13. The related grounds taken by the appellant are dismissed.” 3. He pointed out that, in paragraph No.5.2, the learned First Appellate Authority has rightly construed and highlighted the position of law on the points raised by the assessee; but somehow failed to apply this position of law on the facts of the present appeals. 4. At this stage, learned CIT-DR submitted that the Revenue be given an opportunity to verify as to whether the notice issued under Section 148 dated 27.04.2015 is the only notice or prior to that, i.e. even prior to the date of search i.e. 13.11.2014, any notice under Section 148 was issued and served upon the assessee. The learned Counsel for the assessee emphasised that copy of the notice has been placed in the paper-book and this specific issue was brought to the notice of the learned CIT(A) and the learned CIT(A) failed to reject the submissions of the assessee by a categorical finding of fact. However, considering all these aspects, we have concluded the hearing; but, before pronouncing the decision on the above arguments, we further provide a period of 10 days to the learned CIT-DR to verify as to whether any notice under Section 148 of the Act was issued prior to the date of search. If it was issued, then copy of the same be supplied to the Bench Clerk on or before 25 th October 2021. If issuance of some notice and its service upon the assessee will be brought to our notice, then we will re-fix the appeal for hearing on merits; otherwise, we will adjudicate on the preliminary issue. With the above observations, we reserve the judgement. Copy of this order-sheet be supplied to both the parties. 4. We gave time to the learned CIT-DR upto 25 th October 2021, but till today, i.e. on 17 th November 2021, no material has been filed by the Revenue. Therefore, we proceed to pass the final order. 5. The brief facts of the case are that the assessee, Shri Jayantilal Dalsukhbhai Panchal, had filed his return of income under Section 139(1) of the Income-Tax Act on 27.09.2012 declaring total income at Rs.2,31,79,910/- for Assessment Year 2012-13. Similarly, for Assessment Year 2013-14, he filed such return on 05.08.2013 declaring total income of Rs.1,86,12,350/-. His son Shri Pranav Jayantibhai Panchal did not file any return under Section 139(1) of the Act for Assessment Year 2012-13; however, for IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 6 Assessment Year 2013-14, he has filed his return of income under Section 139(1) of the Act on 31.10.2013 declaring total income of Rs.1,95,35,690/-. All these returns were processed under Section 143(1) of the Income-Tax Act. It emerges out from the assessment order that a search and survey under Section 132/133A of the Income-Tax Act was carried out in the case of Rashmikant Bhatt Group of cases on 09.01.2013. According to the Assessing Officer, some incriminating materials related to the assessee were found and impounded during the course of survey proceedings carried out at Samarpan Infrastructure Pvt. Ltd. Therefore, based on the impounded material, the case of both the assessees were reopened under Section 147 of the Act for both the assessment years. Subsequently, a search under Section 132 of the Income-Tax Act was carried out in the Narayan Reality Group of cases, including the case of the assessees, on 13.11.2014. Consequently, the cases of both the assessees were centralized and proceedings under Section 147 of the Act were dropped and proceedings under Section 153A of the Act were initiated. Ultimately, the assessment orders were passed under Section 153A r.w.s. 143(3) of the Act on 22.12.2016 in the cases of both the assessees. The additions have been made on account of unexplained on- money paid by them for purchase of land at Block No.81-85 and 87, Village Kotali, Waghodia, admeasuring 49547 sq. mtrs. This on-money has been worked out on the basis of loose papers impounded from Samarpan Infrastructure Pvt. Ltd. as Annexure-BF16. The learned Assessing Officer has made reference to various pages of these seized material and tabulated them on page Nos. 3 & 4 of the assessment order. Before the learned First Appellate Authority, it was contended by both the assessees that the time limit to issue notice under Section 143(2) of the Act in both these years was over before the search was carried out upon both the assessees. It was also contended that the notice issued under Section 148 of the Act is dated IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 7 27.04.2015 which is subsequent to the search carried out at the premises of the assessees on 13.11.2014. Therefore, on the date of search, no assessment proceedings were pending which could be abated. The assessments under Section 153A of the Act in the years, where the assessments already stand completed can only be tinkered with if some incriminating materials were found during the course of search. The learned First Appellate Authority has taken into cognizance this argument, but somehow did not record any finding on this aspect; rather recorded the finding that since the reassessment proceedings were pending before the issuance of notice under Section 153A of the Act, that proceedings would abate and the assessments have been rightly passed under Section 153A of the Act. We have taken cognizance of these findings in our interim order extracted supra. 6. The contentions of the learned Counsel for the assessee have been noticed by us in paragraph No.2 of the interim order dated 12.10.2021. At the cost of repetition, we would observe that his main contention is that the time limit to issue notice in both these years under Section 143(2) of the Income-Tax Act for scrutinizing the returns was 30.09.2013 in Assessment Year 2012-13 and 30.09.2014 in Assessment Year 2013-14, but no notice was issued in these years. The first notice was issued under Section 148 of the Act which is dated 27.04.2015. This notice is after the search which was conducted upon the assessee on 13.11.2014. Thus, according to the learned Counsel for the assessee, the additions in the hands of both the assessees could be made if any incriminating documents exhibiting the fact of payment of on-money were found during the search at the premises of the assessee. The learned Assessing Officer has been harboring upon the information/loose papers collected from the third person which cannot be IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 8 used against both the assessees. The learned Counsel for the assessee relied upon the following decisions:- 1. PCIT Vs. Saumya Construction (P.) Ltd., [2016] 387 ITR 529 (Guj.), 2. Pepsico India Holdings (P.) Ltd Vs. ACIT, [2015] 370 ITR 295 (Delhi), 3. Hon’ble Gujarat High Court judgment in the case of PCIT vs. Chartered Speed Pvt Ltd, in Tax Appeal Nos. 126 & 127 of 2015, 4. Krishna Textiles Vs. CIT, [2009] 310 ITR 227 (Guj.) 5. Tribunal decision in the case of Hitesh Ashok Vaswani & others Vs. DCIT in IT(SS) Nos. 118 to 123/Ahd/2019, decided on 12.11.2020. 7. On the other hand, learned CIT-DR was unable to controvert the contentions raised by the learned Counsel for the assessee. He requested that the Department be given time to find out as to whether any other notice, except the notice dated 27.04.2015, was issued under Section 148 of the Act or not. In other words, he wanted to verify as to whether any reassessment notice was issued prior to the date of search. We have noticed this fact categorically in paragraph No.4 of the interim order extracted supra. In spite of sufficient time provided by us, nothing has been placed on record by the Revenue. 8. One of the decisions relied upon by the learned Counsel for the assessee is the case of Hitesh Ashok Vaswani (supra). It has been authored by the “JM/VP” and by this very Bench. In this judgment, we have discussed the scope of Section 153A of the Act on the strength of judgment of Hon’ble Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del) as well as on the strength of the judgment of Hon’ble jurisdictional High Court in the case of Pr. CIT vs. Saumya Construction, 387 ITR 529 (Guj.). We have also taken note of the decision of Hon’ble ITAT Delhi Bench in the case of DCIT Vs. Smt. Shivali Mahajan and others, rendered in IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 9 ITA No. 5585/Del/2015 wherein the ITAT Delhi Bench has specifically held that the material recovered from the premises of third person cannot be used in the hands of searched persons. For that purpose, an assessment under Section 153C or 147 of the Act is to be made. In order to appreciate this aspect, we would like to take note of the findings recorded by us in the case of Shri Hitesh Ashok Vasvani & Others in IT(SS)A Nos. 118 to 123/Ahd/2019, decided on 12.11.2020. The discussion made by us expounding the scope of Section 153A reads as under:- “29. We have duly considered rival contentions and gone through the record carefully. Before adverting to the facts and alleged seized material considered by the ld.AO for making the addition in the hands of the present three assessees, we deem it appropriate to bear in mind the position of law propounded in various authoritative judgments recording scope of section 153A of the Act. We are of the view that in this regard, there were large numbers of decisions. First we refer to the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla, 380 ITR 573 (Del). Hon'ble Delhi High Court after detailed analysis has summarized the following 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. 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 takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 10 respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A 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." 30. ITAT, Delhi Bench in the case of DIT Vs. Smt. Shivali Mahajan and others, rendered in ITA No.5585/Del/2015 (copy of the decision placed on record) has considered this aspect in its decision. Thereafter, the Tribunal has specifically held that serial no.(iv) of the above proposition, the Hon'ble Delhi High Court has specifically held that assessment under section 153A of the Act has to be specifically made on the basis of seized material. ITAT Delhi Bench was considering an aspect whether the evidence in the shape of books of accounts, money, bullion, jewellery found during the course of search relates to other person than the searched person, can that be considered while making assessment under section 153A of the Act. Like in the present appeals, simultaneous search was carried out at the premises of the Venus Infrastructure and Ashok Sunderdas Vaswani, and the material found IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 11 during the search of Venus Infrastructure Developers or Ashok Sunderdas Vaswani could be used while framing the assessment of Rajesh Sunderdas Vaswani and Deepak Budharmal Vaswani under section 153A of the Act. ITAT Delhi Bench has specifically held that material recovered from the premises of other person cannot be used in the hands of the searched person. For that purpose an assessment under section 153C or 147 is to be made. At this stage, in order to fortify ourselves, we would like to make reference to the following paragraphs of the ITAT Delhi Bench's order. It reads as under: “15. Thus, when during the course of search of an assessee any books, document or money, bullion, jewellery etc. is found which relates to a person other than the person searched, then the Assessing Officer of the person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly, Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We, respectfully following the above decisions of Hon'ble Jurisdictional High Court, hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person." 31. Order of the ITAT Delhi Bench in other cases viz. Asha Rani Lakhotia vs. ACIT and Subhag Khattar Vs. ACIT are on the same line. 32. Hon'ble Delhi High Court in the case of Subhag Khattar in Tax Appeal No.60 of 2017 has considered the following question of law: "Did the Income Tax Appellate Tribunal (ITAT) fall into error in holding that the additions made under Section 153A read with Section 143(3) of the Income Tax Act, 1961 in the circumstances of the case, were not justified and supportable in law?" 33. After putting reliance upon its decision in the case of CIT Vs. Kabul Chawla (supra) has replied this question as under: "6. The Assessee went in appeal before the Commissioner of Income Tax (Appeals) who dismissed it by an order dated 27th November, 2014. A further appeal was filed by the Assessee before the ITAT. The ITAT, inter alia, found substance in the contention of the Assessee that the assessment under Section 153(A) of the Act, in the absence of any incriminating material found during the search on the premises of the IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 12 Assessee was not sustainable in law. Reliance was placed on the decision of this Court in Commissioner of Income Tax v. Kabul Chawla, [2016] 380 ITR 573. 7. A question was posed to the learned counsel for the Revenue whether in the present case anything incriminating has been found when the premises of the Assessee was searched. The answer was in the negative. The entire case against the Assessee was based on what was found during the search of the premises of the AEZ Group. It is thus apparent on the face of it, that the notice to the Assessee under Section 153A of the Act was misconceived since the so-called incriminating material was not found during the search of the Assessee's premises. The Revenue could have proceeded against the Assessee on the basis of the documents discovered under any other provision of law, but certainly, not under Section 153A. This goes to the root of the matter." 34. Hon'ble Court has specifically observed for the purpose of section 153A that only seized material is required. However, if there is any other incriminating material belong to the assessee found at the premises of the some other person, then the assessment has to be made under other provisions and not under section 153A of the Act. Hon'ble jurisdictional high Court has also considered the decision of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra). Hon'ble Gujarat High Court framed the following question of law in the case of Pr.CIT Vs. Saumya Construction (supra): "[A] Whether the order of Tribunal is right in law and on facts in deleting the addition made in assessment made u/s 153A of the Act? [B] Whether the Tribunal is right in law in holding that the addition should be based on the incriminating material found during the course of search under new procedure of assessment u/s 153A which is different from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incriminating material found during the course of search' which are not there in section 153A? [C] Whether the Tribunal erred in relying on the ITAT order in Sanjay Aggarwal v. DCIT (2014) 47 Taxmann.Com 210 (Del) which has interpreted undisclosed income unearthed during the search to imply incriminating material, as against the finding of the Delhi High Court in Filatex India Ltd. v. CIT- IV (2015) 229 Taxman IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 13 555 wherein it is held that during the assessment u/s 153A additions need not be restricted or limited to incriminating material found during the course of search?" 35. Hon'ble Court concurred with the decision of Hon'ble Delhi High Court. We deem it appropriate to take note of relevant part of the decision, which reads as under: "16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the legislature is clear viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 14 to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of statements recorded on oath of Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, when the limit for framing the assessment as provided under section 153 was about to expire, the notice has been issued in the present case seeking to make the proposed addition of Rs.11,05,51,000/- on the basis of the material which was not found during the course of search, but on the basis of a statement of another person. In the opinion of this court, in a case like the present one, where an assessment has been framed earlier and no assessment or reassessment was pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 15 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed." 9. It is also pertinent to note that, in the case of Kabul Chawla (supra), the Hon’ble Delhi High Court in its concluding paragraph has observed that, on the date of the search, the assessments for assessment years 2002-03, 2005-06 and 2006-07 already stood completed and the returns in these years were accepted under Section 143(1) of the Act and these acceptance of returns processed under Section 143(1) of the Act was construed by the Hon’ble Delhi Court as completion of assessments and this acceptance of IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 16 return, according to the Hon’ble Delhi High Court, could be tinkered with if some incriminating material was found at the premises of the assessee. 10. The position of law in other decisions referred by the learned Counsel for the assessee is identical; particularly we have already considered the judgment of Hon’ble jurisdictional High Court in the case of Saumya Construction Pvt Ltd (supra). In the light of above, if we examine the fact from the record, then it would reveal that the Assessing Officer has not made reference to any seized material which was found from the premises of the assessee. He only made reference to the documents, i.e. the loose papers impounded from Samarpan Infrastructure Pvt. Ltd. during the survey. In paragraph No.5.2 of the assessment order, he tabulated all these documents. The other material referred by him for buttressing his contentions is the statement recorded under Section 131 of the vendors of the land admitting the receipt of on-money. But, these aspects could only be looked into in a regular assessment while scrutinizing the returns of the assessee or in re-assessment proceedings and if these things are revealed during the search on a third person, then by following the procedures as contemplated under Section 153C of the Act. These aspects cannot be looked into in an assessment framed under Section 153A of the Income-Tax Act. 11. The facts in both the assessment years are common; only difference is that the amount must have been transferred in two assessment years where the allegation of on-money transactions is spread over two years. 13. In view of the above discussion, we are of the view that no addition is sustainable in the assessments framed under Section 153A of the Income-Tax IT(SS)A Nos. 265, 266, 268 & 269/Ahd/2019 Assessee : Jayantilal Panchal & Pranav Panchal AY : 2012-13 & 2013-14 17 Act, in both assessment years under consideration, in both the hands of the assessees. Therefore, we allow all these appeals and delete the additions. 14. In the result, the appeals of the assessees in both assessment years are allowed. Order pronounced in the Court on 22 nd November 2021 at Ahmedabad. Sd/- Sd/- (WASEEM AHMED) (RAJPAL YADAV) ACCOUNTANT MEMBER VICE-PRESIDENT Ahmedabad, Dated 22/11/2021 *Bt आदेश क琉 灹ितिलिप अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 / The Respondent. 3. संबंिधत आयकर आयु猴 / Concerned CIT 4. आयकर आयु猴)अपील (/ The CIT(A)- 5. िवभागीय 灹ितिनिध ,आयकर अपीलीय अिधकरण/DR,ITAT, Ahmedabad, 6. गाड榁 फाईल /Guard file. आदेशानुसार/ BY ORDER, TRUE COPY सहायक पंजीकार (Asstt. Registrar) आयकर अपीलीय अिधकरण ITAT, Ahmedabad 1. Date of dictation- ...17.11.2021...... 2. Date on which the typed draft is placed before the Dictating Member ...18.11.2021............ Other member ......22.11.2021............... 3. Date on which the approved draft comes to the Sr.P.S./P.S. - ......22.11.2021............ 4. Date on which the fair order is placed before the Dictating Member for Pronouncement ...22.11.2021... 5. Date on which the file goes to the Bench Clerk.......22.11.2021............ 6. Date on which the file goes to the Head Clerk.................................. 7. The date on which the file goes to the Assistant Registrar for signature on the order..................... 8. Date of Despatch of the Order..................