THE ACIT, (CENTRAL)II, Bhopal V. M/s. M.R. Agriculture Pvt. Ltd., Raipur

ITSSA 281/IND/2016

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9152 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-11-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-09-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 18-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Unexplained investment; Unexplained expenditure; Search and seizure; Additional evidence; Question of law; Assessment record; Sham transactions; Revised return; Documents seized; Set aside
• Section: 147; 68; 27; 132; 28; 271(1)(c); 90; 154; 2; 69C; 40A(3); 139; 143(3); 142(1); 153A; 40(a)(ia); 133(6); 143(1); 69B; 143(2); 64; 142(2A); 43; 48; 13; 153; 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE Ms. MADHUMITA ROY, JUDICIAL MEMBER & SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER I .T ( S S) .A . N o s. 2 9 0 /I n d / 2 0 1 6 , 3 , 4 , 5 & 6 /I n d /2 0 1 7 & I T A N o . 2 2 /I n d /2 0 1 7 ( A s se ss m e n t Y e a r : 2 0 0 8 - 0 9 , 2 0 0 9 - 1 0 , 2 0 1 0 - 1 1 , 2 0 1 1 - 12 , 2 0 1 2 - 1 3 & 2 0 1 3 - 1 4 ) T h e A ss tt . C o m m i s sio n e r o f I n c o m e T a x ( C e n tr a l) - I I B h o p a l V s. M / s. M . A h u ja P r o j e c t ( I n d ia ) Pv t. L t d . Sa i K u n j, C iv il L i n e s, K a t o r a T a l a b , R a ip u r PA N N o . A A FC M 3 3 8 2 D (Appellant) .. (Respondent) & I .T ( S S) .A . N o s. 2 9 1 & 2 9 2 /I n d /2 0 1 6 ( A s se ss m e n t Y e a r : 2 0 1 1 - 1 2 & 2 0 1 2 - 1 3 ) M / s. M . A h u ja P r o j e c t ( I n d ia ) Pv t. L t d . Sa i K u n j, C iv il L i n e s, K a t o r a T a l a b , R a ip u r V s. D C I T , C e n tr a l - 1 , B h o p a l PA N N o . A A FC M 3 3 8 2 D (Appellant) .. (Respondent) & IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 2 - I .T ( S S) .A . N o s. 2 7 6 , 2 7 7 & 2 7 8 /I n d /2 0 1 6 & 7 / I n d / 2 0 1 7 ( A s se ss m e n t Y e a r : 2 0 0 9 - 1 0 , 2 0 1 0 - 1 1 , 2 0 1 1 - 1 2 & 2 0 1 2 -1 3 ) T h e A ss tt . C o m m i s sio n e r o f I n c o m e T a x ( C e n tr a l) - I I B h o p a l V s. Sh r i M a h e n d r a A h u ja Sa i K u n j, C iv il L i n e s, K a t o r a T a l a b , R a ip u r PA N N o . A F FP A 3 6 1 1 K (Appellant) .. (Respondent) & I .T ( S S) .A . N o s. 2 7 9 , 2 8 0 & 2 8 1 /I n d /2 0 1 6 ( A s se ss m e n t Y e a r : 2 0 0 9 - 1 0 , 2 0 1 0 - 1 1 & 2 0 1 1 - 1 2 ) T h e A ss tt . C o m m i s sio n e r o f I n c o m e T a x ( C e n tr a l) - I I B h o p a l V s. M / s. M . R . A g r i c u lt u r e P v t . L t d . Sa i K u n j, C iv il L i n e s, K a t o r a T a l a b , R a ip u r PA N N o . A A FC M 8 6 5 2 E (Appellant) .. (Respondent) & I .T .A . N o . 1 3 5 3 /I n d /2 0 1 6 ( A s se ss m e n t Y e a r : 2 0 1 3 - 1 4 ) S m t. R o m a A h u ja Sa i K u n j, C iv il L i n e s, K a t o r a T a l a b , R a ip u r V s. D C I T , C e n tr a l - 1 , B h o p a l PA N N o . A G B P A 6 9 8 9 K (Appellant) .. (Respondent) Revenue by : Shri P. K. Mitra, CIT.D.R. Assessee by : Shri Sunil Agrawal, Advocate IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 3 - D a t e o f H e a r i ng 20.09.2022/22.09.2022 D a t e o f P r o no un c e m e nt 02.11.2022 O R D E R PER Ms. MADHUMITA ROY - JM: The bunch of cross appeals filed by the Revenue and the assessee are directed against the orders passed by the Commissioner of Income Tax (Appeals)-3, Bhopal (in short ‘CIT(A)’) dated 30/09/2016 (IT(SS)A No. 290/Ind/2016 and all other dated 18/10/2016 arising out of the orders passed by the DCIT, Central-1, Bhopal under Section 153A r.w.s. 143(3), all dated 30.01.2015 (in M/s. M. Ahuja Project (India) Pvt. Ltd. for A.Y. 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2013-14; respectively). In case of Shri Mahendra Ahuja appeals are arising out of the CIT(A)’s orders, all dated 30/09/2016 except IT(SS)A No. 7/Ind/2017 against dated 19.10.2016 arising out of assessment orders dated 30.01.2015 for A.Y. 2009-10 to 2012-13. In case of M/s. M. R. Agriculture Pvt. Ltd. appeals are arising out of the CIT(A)’s orders, all dated 30/09/2016 arising out of assessment orders, all dated 30.01.2015 for A.Ys. 2009-10 to 2011-12 and in case of Smt. Roma Ahuja challenges are against the order dated 19/10/2016 passed by the Ld.CIT(A) arising out of the assessment order dated 30.01.2015 for A.Y. 2013-14. 2. Since, the entire set of appeals are arising out of the common search, and issues are identical, these are heard analogously and are being disposed of by a common order. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 4 - 3. The common grounds arising out of the appeals are as follows: - (i) Whether the approval granted by the concerned authority particularly the ACIT, Central, Bhopal from the Camp at Raipur is in terms of the provisions of Section 153D of the Act. (ii) Whether the addition is sustainable in the eye of law in the absence of any incriminating material found in unabated assessment during the course of search. 4. IT(SS)A No. 290/Ind/2016 in case of M/s. M. Ahuja Project (India) Pvt. Ltd. for A.Y. 2008-09 as a “lead case”. The matters were heard at length on 20 .09.2022 and 22.09.2022. Both the Ld.AR and Ld. CIT-DR vehemently argued in support of their cases made out in the respective appeals. We have also perused the relevant materials available on record. 5. The brief facts leading to the case is this that a search and seizure operation was conducted under Section 132 of the Act on 30.11.2012 in the business premises of the appellant. Since, the various concerns and individuals are inter-connected and have business associates, they were put together under one common name Amrit Group. The assessee company was incorporated as on 19.12.2007 in the business of real estate and business activities started since A.Y. 2008-09. The main source of income of the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 5 - assessee is from the sale of lands, sale of constructed property, land development, transaction advisory, capital gain on sale of property, lease rent, interest of FD and other sources. Notices under Section 153A of the Act dated 30.06.2014 for A.Y. 2007-08 to 2012-13 were issued by the then AO i.e. DCIT, Central, Bhopal, which were duly served upon the assessee and in response thereof on 23.09.2014, the assessee filed its return of income for A.Y. 2008-09 to 2012- 13 and 2013-14 akin to the original return filed under Section 139 of the Act. It is pertinent to mention that since the Company was incorporated on 19.12.2007, the first return of income was filed by it for the A.Y. 2008-09. The case was centralized with the office of the DCIT-Central-(1), Bhopal by and under the order dated 27.06.2014 under Section 127 of the Act issued by the CIT, Raipur. Since the assessee company was incorporated on 19.12.2007 proceeding under Section 153A of the Act was not required and thus dropped for A.Y. 2007-08. The notices under S.143(2) of the Act alongwith detailed questionnaire under Section 142(1) of the Act for all Assessment Years were issued on 07.08.2014 and duly served upon the assessee. The representative of the assessee duly appeared before the AO and submitted their written notes of submission alongwith supporting documents. Regular books of accounts were duly produced. The assessment was finally completed upon making addition mostly under Section 68, 69B, 40(A)(3), 69C of the Act in the hands of the assessee, which were deleted by the First Appellate Authority in appeals preferred by the assessee. Hence, the appeals and cross appeals before us. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 6 - 6. It is relevant to mention that basically the appeals preferred by the Revenue in all these years, mostly in respect of unabated year of assessment against the orders passed by the Ld.CIT(A) on the maintainability point itself. The Ld.CIT(A) was of the opinion that there was no incriminating material found during search leading to additions made against the assessee and therefore, deleted the additions in respective appeals. Thus, the department has filed appeals challenging the order passed by the Ld.CIT(A) in those appeals on the ground of maintainability itself and consequential deletion made by the Ld.CIT(A). In those appeals where the assessee has not filed cross objection made application under Rule 27 of the IT Rules raising this particular ground that the approval granted by the Addl.CIT, Central, Bhopal under Section 153D of the Act dated 30.01.2015 is in mechanical and routine manner, without application of mind. According to the assessees, the approval is nothing but an empty formality. Further that in the absence of valid approval as mandated by law under the provision of Section 153D of the Act as per Section 153B(1)(a) assessment made under Section 153A r.w.s. 143(3) of the Act would be invalid, bad in law, nonest and therefore, liable to be quashed. There are certain appeals filed by the assessee against the order passed by the CIT(A) on merit wherein identical ground of not complying the terms and condition laid down under Section 153D of the Act rendering the order passed by the Ld.CIT(A) bad in law has been raised as additional ground. Keeping in view the judgment passed by the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT, reported in (1999) 157 CTR (SC) 249: (1998) 229 ITR 383 (SC), the said application under Rule IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 7 - 27 is admitted along with the same additional ground raised in the appeals filed by the assessee. 7. At the time of hearing of the matter, the Ld. Counsel appearing for the assessee submitted before us that the approval granted by the Ld.DCIT (Central)-1, Bhopal under Section 153D dated 30.01.2015 is in mechanical and routine manner. The same is a product of non application of mind and therefore the order passed by the Ld.ACIT is liable to be quashed. During the course of hearing, he has drawn our attention to that particular approval dated 30.01.2015 which has been annexed to the paper book appearing at page No.1095 filed before us. He has also pointed out the fact of proposal of obtaining such approval under Section 153D dated 29.01.2015 issued by the Ld.DCIT (Central)-1, Bhopal under the issuance of memo being No. DCIT- (1)-Central-1/BPL/153D/Amrit/2014-15 dated 29.01.2015. The same is appearing at page No. 1096 of the paper book filed before us. He has also drawn our attention to the note sheet prepared by the AO during the assessment proceedings being part of the said paper book. 8. At this juncture, we would like to narrate the contents of note sheet prepared by the Ld. AO as appearing from pages 1098 to 1100 of the paper book. i. On 07.08.2011 questionnaire under Section 142(1) of the Act was issued to the assessee for A.Y 2007-08 to 2013-14. ii. The proceeding was carried out on different dates thereafter. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 8 - iii. On 22.01.2015, the Learned Representative of the assessee attended the Ld.AO and requested time for filing reply as per questionnaire dated 15.12.2014, 15.01.2015 and 20.01.2015. The said request was made by the Ld.AR at around 12:30 pm. iv. On 27.01.2015, the said representative of the assessee, namely, Rohit pathak attended the case and filed part written submission in response to the questionnaire dated 15.12.2014 and 08.01.2015 which was kept on record. However, the said representative of the assessee was requested to file remaining reply on or before 29.01.2015 at 11:30 am, in default, the order shall be passed on merit as also noted by the Ld.DCIT in the said note sheet prepared by him. v. To our utter surprise on 30.01.2015, the assessment orders under S.143(3) of the Act for A.Y. 2008-09 to 2012-13 were passed. Demand notice, accordingly, was issued alongwith notice under Section 271F of the Act for A.Y. 2013-14 & under Section 271(1)(c) of the Act for A.Y. 2008-09, 2009- 10, 2010-11, 2011-12, 2012-13 and under Section 271AAB for A.Y. 2013- 14. It is relevant to mention that said order passed by the Ld.DCIT (Central)-1, Bhopal contains 101 pages. 9. We have further carefully considered the other two documents filed by the Ld.AR; (i) the proposal for obtaining approval under Section 153D of the Act dated 29.01.2015 and finally (ii) the approval dated 30.01.2015 under Section 153D of the Act by the ACIT, Central, Bhopal. 10. The letter / memo seeking approval under Section 153D of the Act in assessment proceedings under Section 153A of the Act in the case of Amrit Group dated 29.01.2015 issued under the signature of the Ld.DCIT (Central)- 1, Bhopal appearing from page No. 1096 is reproduced hereinbelow: IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 9 - IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 10 - IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 11 - It appears from the above document that approval has been sought for from the ACIT, Central, Bhopal in respect of six group of assessment proceedings initiated under Section 153A of the Act, out of which, Sl. No.2, 4, 5 & 6 are before us. It further appears that the said memo was issued on 29.01.2015 from the office of Aaykar Bhawan, Hoshangabad Road, Bhopal being the office of Ld.DCIT (Central)-1, Bhopal to the Additional Commissioner of Income Tax (Central, Bhopal) itself. 11. The most important document being the memo of approval being No. F. No. Addl.CIT/Central/Amrit Group/BPL/2014-15/141 dated 30.01.2015 issued under the signature of ACIT, Central, Bhopal as appearing at page 1095 of the paper book filed before us is reproduced hereinbelow: “OFFICE OF THE ADDL. COMMISSIONER OF INCOME TAX (Central) ‘Aayakar Bhawan’, Hoshangabad Road, Bhopal (M.P.-462011 (CAMP AT RAIPUR) F.No.Addl.CIT/Central/Amrit Group/BPL/2014-15/141 To, The Deputy Commissioner of Income Tax (Central)-I, Bhopal Sub: - Approval u/s 153D of the Income Tax Act, 1961 in assessment proceedings of Amrit Group of cases covered u/s 153A-reg Please refer to your letter F.No.. DCIT-Central-I/BPL/153D/Amrit/2014- 15/ dated 29.01.2015 seeking approval in draft assessment orders of various persons of the group as detailed in the letter. I have gone through the draft assessment order within the limited time available. The cases have also been discussed with you from time to time. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 12 - The assessment orders submitted by your are hereby approved as under:- S.No. Name of the Assessee A.Y Assessed Income (In Rs.) 1 M/s. M. Ahuja Project (India) Pvt. Ltd. (AAFCM3382K) 2008-09 3,22,77,440/- 2009-10 1,87,91,360/- 2010-11 17,07,10,740/- 2011-12 7,37,89,770/- 2012-13 7,26,89,840/- 2013-14 6,04,73,690/- You may act accordingly. A copy of the final orders passed may be sent to this office for records. Sd/- (Muneesh Kumar) Addl. Commissioner of Income-tax (Central), Bhopal” 12. From the above document, we have noted this particular fact that the same was issued from the office of the ACIT, Central, Aaykar Bhawan, Hoshangabad Road, Bhopal, M.P. at the camp office at Raipur which is 800 km. away from Bhopal fact of which has not been able to be controverted by the Ld.DR. We further note that there is no iota of evidence showing transmission of the concerned files to the ACIT, Central, Camp Office at Raipur alongwith the draft order u/s 153A of the Act for grant of approval u/s 153D of the Act. Under this circumstance, the approval has been challenged by way of application under Rule 27 of IT Rules, 1963 on the ground of non- application of mind of the ACIT. The ACIT has reached at a hasty conclusion; moreso, the same is an empty formality. In the absence of a valid approval as mandated by law under the provision of Section 153D of the Act IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 13 - as per 153B(1)(a) assessment under Section 153A r.w.s. 143(3) would be invalid, nonest in the eye of law was, thus, liable to be quashed. 13. In support of the case on the issue of approval of draft assessment order by the Ld.ACIT, it has been submitted by the Ld.AR that ACIT in this case has granted approval for all the assessees for respective assessment years through a single approval letter which is against the scheme of assessment under sub-Section 153A to 153D of the Act. The approval, thus, given by the ACIT is nonest and the consequential assessment made on the basis of such approval is illegal and deserved to be annulled. In this respect, the following judgments have been relied upon by the Ld.AR: - 13.1 In case of Navin Jain & Ors. Vs. DCIT, reported in [2021] 91 ITR 682 (Luck.-Trib.). The Co-ordinate Bench on identical issue has been pleased to observe as follows: “7. It was submitted that the rationale of word ‘ each’ as specifically referred to in s.153D and s.153A deserves to be given effective/proper meaning so that the underlying legislative intent as per the scheme of assessment of ss.153A to 153D is fulfilled. It was submitted that Addl. CIT in these cases has granted approval for all the assesses for all assessment years through a single approval letter which is against the intent of law and therefore, also the approval given by Addl. CIT is non-est and consequential assessment made on this basis of such approval is illegal and deserves to be annulled. Learned counsel for the assessee in this respect relied on a judgment of Hon’ble Allahabad High Court in the case of Mohd. Ayub vs. ITO 346 ITR 30 where non issue of separate notice under s.148 for each year where held to be invalid. Learned counsel for the assessee submitted that granting of approval under s.153D is a huge task which involves the verification by the approving authority to examine as to which year is unabated and which year is abated and the relevance vis-à-vis seized material. Learned counsel for the assessee further invited our attention to CBDT manual of Office Procedure Volume-II (Technical) placed at pp. 995 and 996 of paper book wherein the CBDT IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 14 - has directed that AO should submit the draft assessment order for approval from the approving authority authority to examine as to which year is unabated and which year is abated and the relevance vis-à-vis seized material. Learned counsel for the assessee further invited our attention to CBDT manual of Office Procedure Volume-II (Technical) placed at pages 995 and 996 of paper book wherein the CBDT has directed that Assessing Officer should submit the draft assessment order for approval from the approving authority well in time. Such manual says that the Assessing Officer should seek approval from the approving authority at least one month before the time barring date. While going through CBDT manual placed at paper book pages 995 & 996, it was observed that this manual was printed in February 2003 and therefore, Learned counsel for the assessee was asked as to how it is applicable to the provisions of section 153D of the Act which came into existence w.e.f. 01/06/2007. Learned counsel for the assessee in this respect submitted that this manual is applicable to the provisions of section 158BG of the Act and which are para materia to the provisions of section 153D of the Act. It was further submitted that Mumbai Tribunal in the case of Shreelekha Damani, vide order dated 19/08/2015, while deciding similar issue u/s 153D, has relied on the case laws relied for deciding the issue of approval u/s 158BG of the Act and therefore this manual is applicable to provisions of Section 153D also. Learned counsel for the assessee further placed reliance on Circular No. 3 of 2008 dated 12/03/2008 issued by CBDT whereby the CBDT has issued instructions regarding mandatory approval u/s 153D if the order is to be passed by Assessing Officer below the rank of Jt. CIT. It was submitted that the present cases were becoming time barring on 31/12/2018 and draft assessment orders has been made on 30/12/2018 and approval has been taken on 30/12/2018 and on the same day final assessment order has been passed and, therefore, clearly the CBDT instructions have been violated. In view of these facts and circumstances, it was submitted that approval has been given in a most mechanical manner without any application of mind and without any independent examination of seized material and other material on record. There is no mention about any incriminating material forwarded to Jt. CIT and there is no mention of the statements recorded at the time of search. It was submitted that the approval is granted in a hurried manner without looking into the serious lapses committed by the Assessing Officer and therefore, the approval u/s 153D is invalid and bad in law and consequent assessment order needs to be quashed and reliance in this respect was placed on the order of Delhi Bench of the Tribunal in the case of Sanjay Duggal and Others vs. ACIT in I.T.A. No.1813/Del/2019 wherein vide order dated 19/01/2021 the entire law relating to section 153D has been discussed and after relying on a number of case laws, the Tribunal has allowed the appeals of the assessees and has quashed the assessment order. It was submitted that in that case also, through a single letter, the approval was granted in a number of cases. Further reliance was placed on the order of Ranchi Bench of the Tribunal in the case of Rajat Minerals Pvt. Ltd. vs. DCIT wherein sanction u/s 153D was granted in 28 cases and IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 15 - Tribunal allowed the appeals of the assessees by quashing the assessment orders. Further reliance was placed on the order of Mumbai Tribunal in the case of Pr. CIT vs. Shreelekha Damani wherein the provisions of section 158BG has been discussed and it was held by the Tribunal that approval granted u/s. 153D of the Act was de void of application of mind and without considering the material on record and hence Tribunal annulled the assessment. It was submitted that Hon'ble Bombay High Court has also dismissed the appeal of the Department filed against the above order of the Tribunal. Further reliance was placed on an order of Mumbai Bench of the Tribunal in I.T.A. No.4916 in the case of Sumer Associates wherein under similar circumstances, vide order dated 26/12/2018 the issue was decided in favour of the assessee. Reliance was also placed on the judgment of Tribunal in the case of Indra Bansal decided by Jodhpur Bench in I.T.A. No.321 to 324 vide order dated 23/02/2018. Reliance was also placed on the judgment of Cuttack Bench of Tribunal in I.T.A. No.01 and 02 in the case of Geeta Rani Poddar and Manju Simite Dash where vide order dated 05/07/2018 similar issue has been decided in favour of assessee. 7.1 In view of these facts and circumstances and judicial precedents, it was argued that the assessment orders passed in these cases are illegal and need to be quashed. 8. Learned CIT, D.R., on the other hand argued that proper approval, as required under the provisions of section 153D, has been obtained by the Assessing Officer. It was submitted that the approval was taken well within the time before limitation and the higher authority has fully applied his mind to grant approval. It was submitted that though the Jt. CIT has not written in so many words about his satisfaction for granting approval but the fact remains that he has granted approval to the draft assessment order and only after that the Assessing Officer has passed the final assessment order and therefore, ground No. 5 of the appeal be dismissed and appeals be heard on merits. 9. We have heard the rival parties and have gone through the material placed on record. We find that in these cases, in view of a search carried out on the Sigma Group, the assessments of various assessees were reopened and various assessees were required to file income tax returns as required under the provisions of section 153A of the Act. The search was conducted on 23/08/2016 which continued upto 25/08/2016 and therefore, assessment year 2017-18 became the search year and the years preceding the search year became the subject matter of reopening u/s 153A of the Act. The issue raised by Learned counsel for the assessee is that the approval granted by the Addl. CIT is bad in law as it is humanly impossible to go through documents exceeding 17,800 in a single day and then grant approval on the same day. Since the controversy involved here is with respect to approval u/s IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 16 - 153D of the Act, it would be appropriate to first visit the provisions of section 153D of the Act, which for the sake of completeness are reproduced below: "SECTION 153D. Prior approval necessary for assessment in cases of search or requisition [No order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in clause (b) of [sub-section (1) of section 153A] or the assessment year referred to in clause (b) of sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner.] [Provided that nothing contained in this section shall apply where the assessment or reassessment order, as the case may be, is required to be passed by the Assessing Officer with the prior approval of the [Principal Commissioner or Commissioner] under sub-section (12) of section 144BA.]" 9.1 The above provisions of section 153D of the Act were inserted by Finance Act, 2007 with effect from 01/06/2007. In our humble understanding of the said provisions, we are of the opinion that the Legislature wanted the assessment/reassessment of the search cases should be made and order should be passed with the prior approval of superior authority. The word approval has not been defined in the Income Tax Act but the general meaning of word approval can be understood from Black Law of Dictionary which defines approval as: "The Act of confirming, rectifying, sanctioning or consenting to some act or thing done by another. To approve means to be satisfied with, to confirm, rectify, sanction or 'consent to some act or thing done by another, to consent officially, to rectify, to confirm, to pronounce good, thing or Judgment of, admitting propriety or excels or to pleas with." 9.2 The Hon'ble Supreme Court of South Carolina in State vs. Duckett 133 SC 85 [SC 1925], 130 SE 340 decided on 05.11.1925 held that approval implies knowledge and, the exercise or discretion after knowledge. ........................... ........................... Coming to the facts of the case, it is apparent from the documents on record that the approval was given by the Joint Commissioner in hasty manner without even going through the records as the records were in Jodhpur while the Joint Commissioner was camping at Udaipur. The entire exercise of seeking and granting of approval in all the 2 cases was completed in one single day itself i.e., 31-3-2013. Thus, it is I.T.(SS)A. Nos.639, 640, 641, 649, 642 & 651 apparent that the Joint Commissioner did not have adequate time to apply his mind to the material on the basis of which the assessing officer had made the draft assessment orders. Tribunal, Mumbai Bench and Tribunal, Allahabad Bench in their orders, as IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 17 - discussed in the preceding paragraphs, have laid down that the power to grant approval is not to be exercised casually and in routine manner and further the concerned authority, while granting approval, is expected to examine the entire material before approving the assessment order. It has also been laid down that whenever any statutory obligation is cast upon any authority, such authority is legally required to discharge the obligation by application of mind. In all the cases before us, the Department could not demonstrate, by cogent evidence, that the Joint Commissioner had adequate time with him so as to grant approval after duly examining the material prior to approving the assessment order. The circumstances indicate that this exercise was carried out by the Joint Commissioner in a mechanical manner without proper application of mind. Accordingly, respectfully following the ratio of the Co-ordinate Benches of Mumbai and Allahabad as afore- mentioned and also applying the ratio of the judgment of the Hon'ble Apex Court in the case of Sahara India (Firm) v. CIT (supra), we hold that the Joint Commissioner has failed to grant approval in terms of section 153D of the Act i.e., after application of mind but has rather carried out exercise in utmost haste and in a mechanical manner and, therefore, the approval so granted by him is not an approval which can be sustained. Accordingly, assessments in three COs and nineteen appeals of the assessee(s), on identical facts, are liable to be annulled as suffering from the incurable defect of the approval not being proper. Accordingly, we annul the assessment orders in CO Nos. 8 to 10/Jodh/2016 and ITA Nos. 325 to 331/Jodh/2016. Thus, all the three COs and the nineteen appeals of the assessee, as aforesaid, are allowed." 10. Similarly we find that Hon'ble Supreme Court in the case of 'Sahara India vs. CIT & Others' [2008] 216 CTR 303 (S.C.) : [2008] 7 DTR (SC) 27: [2008] 300 ITR 403 (SC) while discussing the requirement of prior approval of Chief Commissioner or Commissioner in terms of provision of section 142(2A) of the Act, opined that the requirement of previous I.T.(SS)A. Nos.639, 640, 641, 649, 642 & 651 approval of the Chief Commissioner or Commissioner in terms of said provision being an inbuilt protection against arbitrary or unjust exercise of power by the assessing officer, casts a very heavy duty on the said high- ranking authority to see it that the approval envisaged in the section is not turned into an empty ritual. The Hon'ble Apex Court held that the approval must be granted only on the basis of material available on record and the approval must reflect the application of mind to the facts of the case. 11. In view of these facts and circumstances and in view of judicial precedents relied on by Learned A. R. Ground No.5 in appeals is allowed and the assessments orders are annulled. Rest of the grounds were not argued by Learned A. R. therefore, rest of the grounds are dismissed as not pressed. 12. In nutshell, the appeals filed by the assessee are partly allowed.” IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 18 - 14. Further that the approval accorded under Section 153 is without any occasion to refer the assessment records and seized material, if any, incriminating. The approval is, therefore, unsustainable in law as also submitted by the Ld. AR. In support of his submission, ld. AR has further relied upon a CBDT Circular No. being 3 of 2008 dated 12.03.2008 wherein it has been made to be an obligation on the part of the superior authority to apply their mind on the materials and other factors on the basis of which the AO is making the assessment. After due application of mind and on the basis of the searched material, the superior authority is required to accord approval of the respective assessment orders, particularly, in the search matter. The solemn object of entrusting the duty of approval of assessment in such search cases is that the ACIT with his experience and maturity of understanding should at least minimally scrutinize the seized documents and any other material forming the foundation of assessment which is totally absent in the case in hand. We find substance in such case made out by the assessee. In support of his submission, he has relied upon the judgment passed by the ITAT, Amritsar Bench in Madan Lal Vs. DCIT, reported in [2021] 214 TTJ (Asr) 958 (Amritsar-Trib.). The Co-ordinate Bench on the identical issue has been pleased to observe as follows: “11.2 In the backdrop of facts narrated in the preceding paras, it is the contention on behalf of the asssessee that approval granted under S. 153D does not meet the requirement of law and hence assessment orders passed in consequence of such non-est approval is a nullity in law. The assessment orders thus passed is vitiated in law which illegality cannot be cured. In support of charge of nonest approval, several contentions have been raised viz (i) the approval accorded under section 153D is without any occasion to refer to the assessment records and seized material, if any, incriminating the assessee and hence such approval is in the realm IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 19 - of an abstract approval of draft assessment orders which was unsubstantiated and unsupported and consequently suffered from total non-application of mind (ii) approval granted hurriedly in a spur involving voluminous assessments spanning over 7 assessment years and thus only a symbolic exercise to meet the requirement of law (iii) Total lack of objectivity in drawing satisfaction on objective material while giving a combined approval for 7 assessments and also without evaluating the nuances of each assessment year involved (iv) the mundane action of Addl. CIT under S. 153D in a cosmetic manner gives infallible impression of approval on dotted line and thus defeats the purpose of supervision of search assessments (iv) initialed draft assessment orders not available in office records. 11.3 As observed, Section 153D bestows a supervisory jurisdiction on the designated authority in respect of search related assessment and thus enjoins a salutary duty of statutory nature. The designated superior authority is thus expected to confirm to the statutory requirement in letter and spirit. It is evident from the communication of AO and consequent approval thereon under S. 153D that no assessment record for any assessment year in question or any seized material had traveled to the authority concerned for his objective consideration of the same qua the draft assessment orders. No reference in this regard is made in the approval note either which may discard such allegation as untrue. No other material or order sheet in assessment proceedings etc. were placed before us either to establish otherwise. Except these two documents namely, a solitary communication from AO to the Addl. CIT dated 29/12/2010 and an in turn approval by Addl. CIT dated 31/12/2010, there is nothing else before us to gauge the facts differently. A bare glance at the approval so accorded makes it evident that such approval is generic and listless and accorded in a blanket manner without any reference to any issue in respect of any of the 7 assessment years. Apparently, the approval has been granted on a dotted line without any availability of reasonable time which firms up the belief towards non application of mind. Besides, the approval has been granted in a consolidated manner for all assessment years for which volumnous assessment orders were prepared. The whole sequence of action apparently appears to be illusory to merely meet the requirement of law as an empty formality. It is also alleged on behalf of assessee that the draft assessment orders are not available on record which allegation has not been rebutted. The draft assessment orders showing some marking / intials etc. could have given a valuable input on the applicability of mind and could throw light on objectivity applied owing to total silence on any delineation on these aspects in the approval memo. The records before us are totally muted. 11.4 Based on solitary communication placed before us, it is ostensible that draft assessment orders were placed before the Addl. CIT on 29.12.2010 for the first time. It is axiomatic from the plain reading of approval memo that various assessment orders and the issues incorporated in the assessment orders, were IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 20 - never subjected to any discussion with the authority granting approval prior to 29.12.2010. It is evident from the CBDT Circular No. 3 of 2008 dated 12.03.2008 that the legislature in its highest wisdom made it obligatory that the assessments of search cases should be made with the prior approval of superior authority, so that the superior authority apply their mind on the materials and other attending circumstances on the basis of which the Assessing officer is making the assessment and after due application of mind and on the basis of seized materials, the superior authority is required to accord approval the respective Assessment order. Solemn object of entrusting the duty of Approval of assessment in search cases is that the Additional CIT, with his experience and maturity of understanding should at least minimally scrutinize the seized documents and any other material forming the foundation of Assessment. It is elementary that whenever any statutory obligation is cast upon any statutory authority, such authority is required to discharge its obligation not mechanically, not even formally but after due application of mind. Thus, the obligation of granting Approval acts as an inbuilt protection to the taxpayer against arbitrary or unjust exercise of discretion by the AO. The approval granted under section 153D of the Act should necessarily reflect due application of mind and if the same is subjected to judicial scrutiny, it should stand for itself and should be self-defending. There are long line of judicial precedents which provides guidance in applying the law in this regard. 11.5 At the cost of repetition, it may be reiterated that in the instant case, approving authority did not mention anything in the approval memo towards his/ her process of deriving satisfaction so as to exhibit his/her due application of mind. We may observe that Para 2 of the above approval letter merely says that "Approval is hereby accorded u/s. 153D of the Income-tax Act, 1961 to complete assessments u/s. 143(3) r.w.s. 153A of the I.T. Act in the following case on the basis of draft assessment orders..."which clearly proves that the Addl. CIT had routinely given approval to the AO to pass the order only on the basis of contents mentioned in the draft assessment order without any application of mind and seized materials were not looked at and/or other enquiry and examination was never carried out. From the said approval, it can be easily inferred that the said order was approved, solely relying upon the implied undertaking obtained from the Assessing Officer in the form of draft assessment order that AO has taken due care while framing respective draft assessment orders and that all the observations made in the appraisal report relating to examination / investigation of seized material and issues unearthed during search have been statedly considered by the AO seeking approval. Thus, the sanctioning authority has, in effect, abdicated his/ her statutory functions and delightfully relegated his/her statutory duty to the subordinate AO, whose action the Additional CIT, was supposed to supervise. The addl. CIT in short appears to have adopted a short cut in the matter and an undertaking from AO was considered adequate by him/ her to accord approval in all assessments involved. Manifestly, the Additional CIT, without any consideration of merits in proposed IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 21 - adjustments with reference to appraisal report, incriminating material collected in search etc. has proceeded to grant a simplicitor approval. This approach of the Additional CIT, Central has rendered the Approval to be a mere formality and can not be countenanced in law. 11.6 There are several decisions, which supports the view that approval granted by the superior authority in mechanical manner defeats the very purpose of obtaining approval u/s 153D. Such perfunctory approval has no legal sanctity in the eyes of the law. The decision of the co- ordinate bench in Shreelekha Damani vs. DCIT 173 TTJ 332(Mum.) and approved by jurisdictional High Court subsequently as reported in 307 CTR 218 affirms the plea of the Assessee. 11.7 Very recently, the co-ordinate bench in Sanjay Duggal & ors (ITA 1813/Del/2019 & ors; order dated 19.01.2021 has also echoed the same view after a detailed analysis of similar facts and also expressed a discordant note on such mechanical exercise of responsibility placed on designated authority under section 153D of the Act. Hence, vindicated by the factual position as noted in preceding paras, we find considerable force in the plea raised by the Assessee against maintainability of hollow approval under S. 153D totally devoid of any application of mind. The approval so granted under the shelter of section 153D, does not, in our view, pass the test of legitimacy. The Assessment orders of various assessment years as a consequence of such inexplicable approval lacks legitimacy. Consequently, the impugned assessments relatable to search in captioned appeals are non est and a nullity and hence quashed.” 15. It was further argued by the Ld.AR that admittedly, the Ld.AO had passed a single consolidated order for all years under assessment in respect of different groups of assesses rather passing separate orders for ‘each year under Section 153A of the Act” . In fact, the memo seeking approval of draft order seeks major groups of assesses which has been placed in a single notesheet whereupon instead of passing different approval in respect of each and every matter. Ld.ACIT granted approval in a mechanical manner without referring to the reply and/or rejoinder preferred by the assessee, abated, unabated assessment or any other material gathered in the course of search. Under these circumstances, in the absence of any recorded satisfaction in the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 22 - approval or upon considering the material facts placed before the said ACIT, the approval granted by the concerned Officer is arbitrary and erroneous and liable to be quashed. In that view of the matter, consequential assessment order based on nonest approval under S.153D of the Act becomes void-ab- initio. On this score, he relied upon the judgment passed by the Raipur Bench in Goyal Energy & Steel (P) Ltd. vs. ACIT, reported in [2021] 214 TTJ (Asr) 058 (Amritsar-Trib.). The Co-ordinate Bench on identical issue has been pleased to observe as follows: “10. Now adverting to the adjudication of additional grounds of appeal and the Ground No. 3 of main grounds of appeal. The additional grounds of appeal relates to validity of approval under section 153D and Ground No. 3 of main grounds of appeal relates to validity of the additions under section 68 in absence of incriminating evidence found during search. The ld AR for the assessee submits that it is a matter of fact that the AO had passed a single consolidated order for all the years under assessment rather than passing separate orders for “each year” under section 153A. Further, the AO sought a consolidated approval for about 14 different assessee from different groups under her single letter dated 14.12.2018. At the time of assessment, the assessee furnished its reply on 14.12.2018 before the AO, wherein the assessee raised several objections and contentions against the proposed additions in show cause notice. The assessee was directed to file reply by 07.12.2018. The assessee filed its reply on 14.12.2018, which was duly accepted by AO, which is otherwise clearly discernable in para 3.7 of the assessment order. In the said reply the assessee explained the concept of abated and unabated assessment, proof of identity and existence of the investor Company, importance of cross-examination, etc. The ld AR for the assessee further submits that mere perusal of contents of approval granted under section 153D, it can be inferred from the approval sought by AO, from the Ld. JCIT was without considering such reply of the assessee dated 14.12.2018. The copy of the same is placed on record before the Hon’ble bench. The ld.AR for the assessee submits that the Ld. Joint Commissioner of Income-tax (JCIT) granted approval for finalizing the assessment on the request of the assessing officer without indicating any perusal of records, replies and material gathered in the course of search. Rather JCIT categorically mentions that even with respect to orders to be passed by the assessing officer he IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 23 - has ‘presumed’ that necessary records have been perused and legal mandate had been complied. 11. The ld AR for the assessee submits that the material available on record would demonstrate that the JCIT has granted approval under section 153D in a casual and mechanical manner and without any application of mind. As evident from the communication made by A.O. to the JCIT dated 14.12.2018. The AO in the said letter neither makes any iota of reference as to what are the seized materials nor furnishes any assurance with respect to approval and appraisal of all evidences and corresponding reply filed by the assessee. The JCIT rather than confirming such lacunae at the part of the assessing officer, goes on to act in oblivion by “presuming” that the necessary opportunity has been given to the assessee and all the records, evidences and materials have been thoroughly verified. Thus, in a bulk approval of 95 assessment orders on a presumption basis proves the ritualistic approval to comply with the provisions of law which clearly defeat the intent and purpose behind insertion of section 153D brought in the statute by the Finance Act, 2007. The JCIT has granted a blanket approval for 95 cases without giving any reasoning at all in a consolidated manner for all assessment years for different assessee for which voluminous assessment orders on a presumptive basis. 12. To buttress his submissions the ld AR for the assessee relied on the following decision; * Mumbai Tribunal in case of Arch Pharmalabs Ltd & Arch Impex P. Ltd. (I.T.A. No. 6656/Mum/2017 & others) (dated 07.04.2021), * Ranchi Tribunal in Rajat Minerals Pvt. Ltd. Vs DCIT (Central Circle 1) ([2020] 181 ITD 368 (Ranchi-Trib.), * Cuttack Tribunal in Dilip Constructions Private Limited Vs. ACIT IT(SS)A Nos. 66 to 71/CTK/2018. 13. In other alternative submissions the ld AR for the assessee submits that the AO passed a single order in a hasty manner to make the impugned addition, applying same facts to each of the assessment year without weighing the facts and legality of each assessment year under consideration, which is in complete violation of the statutory provisions of law and guidelines laid down by various courts and Special Bench of Tribunal. 14. The ld AR for the assessee submits that search action was carried out on assessee group on 17.01.2017. There was a marriage function in the Goyal family, which was at concluding stage. The search action continued till 2.00 am of 22.01.2017. The authorised officer obtained a confessional statement of Deepak Aggarwal, Director of the assessee company by putting pressure and coercion for IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 24 - surrender of share capital. The statement of the Deepak Aggarwal was not recorded in the presence of Panchas. Mr. Deepak Aggarwal retracted from his statement by filing affidavit before Sub-Divisional Magistrate, copy of which is filed. The ld.AR for the assessee retreated that no incriminating evidence qua the share capital was found during the search. The authorised officer has not recorded even single evidence on the Panchnama about such evidence. The assessment order stands void-ab-initio for unabated assessment years in absence of incriminating evidence. The ld AR for the assessee furnished the year wise last date for issuing notice under section 143(2) for all Assessment Years in the following manner; AY Last date for issuing notice u/s 143(2) 2011-12 30.09.2012 2012-13 30.09.2013 2014-15 30.09.2015 2015-16 30.09.2016 15. The ld AR for the assessee submits that the statement under section 132(4) ( obtained in absence of Panchas) cannot be treated incriminating evidence as held by Hon’ble Delhi High Court in PCIT Vs Best Infrastructure (2017) 397 ITR 82 (Delhi) . To support his submissions the ld AR for the assessee also relied on the following decisions; * CIT Vs Kabul Chawla (Delhi High Court) (ITA Nos. 707, 709 and 713 of 2014), * M/s All Cargo Logistics Ltd. Vs DCIT (ITA 5018 to 5022 & 5059/M/10) (Special Bench), * R.R. Energy (ITA No. 225/RPR/2015 and * Sanjay Duggal vs. ACIT, ITA 1813/Del/2019 dated 19.01.2021 16. On the other hand the ld. CIT-DR for the revenue supported the order of the lower authorities. The ld. CIT-DR for the revenue submits that in the search matters the draft assessment order is always prepared under the guidance of Joint Commissioner of Income- tax (JCIT). The assessee was provided full opportunity during the assessment. The assessment proceedings are also supervised by JCIT to protect the interest of revenue. The JCIT granted approval of the draft assessment after considering the material placed before him. There is no unwarranted thing in the order of assessing officer. There is no mandate in the statue to pass separate order for each and every assessment years as argued by AR of the assessee. The AO has made separate additions in each assessment year and ultimately assessed income for each year separately. The AO before making additions made investigation for each of the investor company, which are Kolkata based entity. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 25 - 17. In the rejoinder submissions the ld. AR for the assessee submits that no such investigation report was provided to the assessee. The ld. AR retreated that the additions were made in the unabated assessment in absence of the incriminating material found during search; therefore, all such additions are liable to be deleted. The statement of the director of the assessee-company cannot be treated incrementing evidence. Even otherwise there is no evidentiary value of such statement, which was not recorded during the search proceeding. 18. We have considered the rival submissions of the parties and have gone through the order of the lower authorities. We have also perused the copy of the Panchnama dated 23.01.2017. There is no dispute that a search action was carried out on the assessee group on 17.01.2017. No incrementing evidence qua the share application money was found and recorded by the authorised officer in the Panchnama dated 22.01.2017 and 28.02.2017. A discloser statement of Director namely Deepak Aggarwal was recorded on 24.01.2017. The statement was retracted on 27.01.2017 by making sworn statement before Sub-divisional Magistrate. It is further admitted facts that on the date of search no assessment of AY 2011-12, 2012-13, 2014-15 & 2015-16 was pending and/ or time limit for issuing notice under section 143(2) has already elapsed. Thus, any addition in the unabated assessment can only be made on the basis of incriminating material found during the search. The assessee right from the beginning has raised plea that no incriminating evidence qua the alleged share application or premium was found in the search on 17.01.2017. We find there is no reference in the Panchnama about incriminating evidence qua the share application money or share premium for all the impugned assessment years. We further find that the assessee while filing reply before AO on 14.12.2018, in response to the show cause notice dated 29.08.2018, clearly stated there is no incriminating evidences against the assessee for making the said additions. We find that the AO passed the assessment order on 14.12.2018 and placed the same before JCIT for his approval, thus there is no consideration of material facts by A.O. with regard to the assessee’s reply dated 14.12.2018 filed before the AO in response to the show cause notice dated 29.11.2018. We further find that the assessee raised specific ground of appeal before ld CIT(A), vide ground No.4, that addition in the assessment is outside of search assessment as no incriminating material was seized in search. However, the ld CIT(A) has not discussed the ground of appeal raised by the assessee. 19. The Hon’ble Delhi High Court in PCIT Vs Best Infrastructure (India) Pvt. Ltd (supra) held that statement recorded under section 132(4) does not itself constitute incriminating material. Thus, the statement of Deepak Aggarwal cannot be treated as incriminating evidence for making basis for addition of share premium under section 68 of the Act. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 26 - 20. Further, Delhi High Court in celebrated case of CIT Vs Kabul Chawla (supra) held that completed assessment can be interfered with by the AO while making assessment under section 153A only on the basis of some incriminating material unearthed during the course of search which was not produced or not already disclosed or made known in course of original assessment. The decision of Delhi High Court has been upheld by Hon’ble Apex Court in Singhad Technical Education Society (397 ITR 344 SC). In view of the aforesaid factual and legal discussions, no addition under section 68 was warranted in absence of incriminating evidence, in the abated assessment. We hold so. In the result the ground No. 3 raised by the assessee is allowed. 21. We further find that the assessee in response to the show cause notice dated 29.08.2018 filed its detail reply on 14.12.2018. In the said reply the assessee raised factual and legal issue. The reply of the assessee is duly acknowledged by AO in para 3.7 of his order. The AO sent the draft assessment order on 14.12.2018 itself to the officer of JCIT, vide reference No. F.No. ACIT (C) -2 RPR/153D/Goyel & Satya/2018-19 dated 14.12.2018, copy of which is placed on record. For proper appreciation of facts the contents of approval dated 22.12.2018 is extracted below: Office of the Jt.CIT (Central), Raipur Aayakar Bhawan, Civil Lines, Raipur 492001 Email: [e-mail] Tel/Fax [phone] F.No.JCIT(C)/RPR/153D/2018-19 Dated: 22-12-2018 To, The Asst. CIT (Central)-2, Raipur Subject – Approval under u/s 153D of the I.T.Act – Goyal, Satya & Gumber Group – Regarding. Please refer to your letter in F.No. ACIT(C)-2/RPR/153D/Goyal & Satya/2018-19 dated 05/12/2018, F.No. ACIT(C)-2/RPR/153D/ Goyal & Sriram Gumber/ 2018-19 dated 07/12/2018 and F.No.ACIT(C)/RPR/153D/Goyal & Satya/2018-19 dated 14/12/2018. 2. The draft assessment orders u/s 153D and 143(3) in the following cases submitted vide above mentioned letter are hereby approved u/s 153D of the I.T.Act – IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 27 - S.No. Name of the assessee PAN AY 1 Arun Agrawal ACJPA4642B 2011-12 to 2017-18 2 Deepak Agrawal ACJPA4646F 2011-12 to 2017-18 3 Goyal Energy and Steel P Ltd AACCG2758E 2011-12 to 2017-18 4 Goyal Traders AACFG1974F 2011-12 to 2017-18 5 Ratanlal Agrawal ACJPA4620R 2011-12 to 2017-18 6 Goyal Enterprises AAMFG4058J 2011-12 to 2017-18 7 Satya Power and Ispat Ltd AAHCS4472N 2011-12 to 2017-18 3. Further in view of this office letter no. F. No. JCIT(C)/RPR/Draft Asst. Order/2016-17/dated 09.09.2016 it is presumed that the AO has – O Given proper opportunity of hearing has been given to the assessee O thoroughly verified the seized material and that there are no adverse findings O satisfied himself that all the issues emanating from the records have been verified and the additions wherever required have been proposed. 4. You may act accordingly. The copy of the final order may be submitted for record purpose in this office Encl: case records Sd/- (R.M. Mujumdar) Joint Commissioner of Income tax, Range- Central, Raipur. 22. On careful perusal of the approval order of JCIT, we find that the JCIT while granting approval on 22.12.2018 recorded that “ it is presumed that the AO has – given proper opportunity of hearing to the assessee, thoroughly verified the seized material and that there is no adverse finding, satisfy himself that all issues emanating from the record have been verified and additions wherever required have been proposed.” 23. Before us, the ld AR for the assessee vehemently argued that JCIT has granted approval under section 153D in a casual and mechanical manner and without any application of mind and that from the communication made to the JCIT by AO vide letter dated 14.12.2018, the AO had not made any iota of reference as to what are the seized materials nor furnishes any assurance with respect to approval and appraisal of all evidences and corresponding reply by the assessee. And that ld. JCIT approved the assessment order by presuming that the necessary IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 28 - opportunity has been given to the assessee and all the records, evidences and materials have been thoroughly verified. The JCIT granted bulk approval of 95 assessment orders which clearly defeats the intent and purpose behind insertion of section 153D brought in the statute by the Finance Act, 2007. 24. We find that the ld. JCIT while granting approval, presumed that Assessing Officer has given proper hearing to the assessee and thoroughly verified seized material and there are no adverse findings, satisfied himself that all the issues emanating from the records have been verified and additions wherever required have been proposed. We further find that there is no independent application of mind on the part of ld.JCIT while granting the approval. 25. We find that coordinate bench of Mumbai Tribunal while considering the similar ground of appeal in granting bulk approval of the assessment under section 153A, in case of Arch Pharmalabs Ltd Vs ACIT (supra) held that the approval accorded under section 153D is without any occasion to refer to the assessment records and seized material, if any, incriminating the assessee and hence such approval is in the realm of an abstract approval of draft assessment orders which was unsubstantiated and unsupported and consequently suffered from total non- application of mind. The relevant part of the order is extracted below: “11.5 At the cost of repetition, it may be reiterated that in the instant case, approving authority did not mention anything in the approval memo towards his/ her process of deriving satisfaction so as to exhibit his/her due application of mind. We may observe that Para 2 of the above approval letter merely says that "Approval is hereby accorded u/s. 153D of the Income-tax Act, 1961 to complete assessments u/s. 143(3) r.w.s. 153A of the I.T. Act in the following case on the basis of draft assessment orders..."which clearly proves that the Addl. CIT had routinely given approval to the AO to pass the order only on the basis of contents mentioned in the draft assessment order without any application of mind and seized materials were not looked at and/or other enquiry and examination was never carried out. From the said approval, it can be easily inferred that the said order was approved, solely relying upon the implied undertaking obtained from the Assessing Officer in the form of draft assessment order that AO has taken due care while framing respective draft assessment orders and that all the observations made in the appraisal report relating to examination / investigation of seized material and issues unearthed during search have been statedly considered by the AO seeking approval. Thus, the sanctioning authority has, in effect, abdicated his/ her statutory functions and delightfully relegated his/her statutory duty to the subordinate AO, whose action the Additional CIT, was supposed to supervise. The addl. CIT in short appears to have adopted a short cut in the matter and an undertaking from AO was considered adequate by him/ her to accord approval in all assessments involved. Manifestly, the Additional CIT, without any consideration of merits in proposed IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 29 - adjustments with reference to appraisal report, incriminating material collected in search etc. has proceeded to grant a simplicitor approval. This approach of the Additional CIT, Central has rendered the Approval to be a mere formality and cannot be countenanced in law. 26. Similar view was taken by Coordinate bench of Delhi Tribunal in Sanjay Duggal & others (supra). 27. So far as the contention of ld CIT-DR that the assessment under section 153A is passed under the supervision of JCIT and that JCIT granted approval of the draft assessment after considering the material placed before him. We do not find any such satisfaction in the approval order that draft assessment after considering the material placed before him, rather the ld JCIT recorded that it is presumed that the AO granted proper opportunity to the assessee etc. 28. In view, of aforesaid discussion and respectfully following the decisions of coordinate benches in Sanjay Duggal & others (supra) and Archpharma Labs & Acrh Impex P Ltd (supra), we find convincing force in the submissions of the assessee that the approval granted by JCIT suffer from non-application of mind and depends on presumption of proper performance of duty by A.O. such per functionary approval under section 153D cannot termed as legitimate. The consequential assessment orders based on non-est approval under section 153D, thus are void-ab-initio on this ground alone. Considering the facts that we have allowed the appeal on the legal issues therefore, consideration of appeal on merit have become academic.” 16. It was the submission of the Ld. AR that the so called approval of ACIT under Section 153D of the Act does not meet the legal requirement; the same has been granted in baffling haste. In this regard, he has drawn our attention to the memo dated 29.01.2015 which indicates that the draft orders were sent to the ACIT seeking approval thereon. No reference to the assessment records also been sent together with the draft assessment orders is found in the said memo. Under these circumstances, the approval cannot be said to be a valid one and thus liable to be quashed. He has relied upon the judgment passed by the ITAT, Ranchi Bench, in case of Rajat Minerals (P) IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 30 - Ltd. vs. DCIT, reported in [2020] 203 TTJ (Ranchi) 955 (Ranchi-Trib.). The Co-ordinate Bench on identical issue has been pleased to observe as follows: “14. First four legal objections raises concerns over propriety y of the assessment orders itself on the grounds of alleged predating of assessment orders in tandem with token and perfunctory approval of the draft assessment orders by superior authority without fulfillment of pre- requisites of Section 153D of the Act. The first and foremost objection of the assessee throughout is that assessment orders were not really made on 28.11.2016 when it was ostensibly made but it was made on a later date. The respective assessment orders were thus challenged as void on the ground of such orders being antedated. It is the case of the assessee that a questionnaire raising substantial points was issued to the assessee in the course of assessment proceedings under s.153 A of the Act on 21.11.2016 which required the assessee to make compliance thereof at a very short notice on 28.11.2016 at 11:30 a.m. On this date and time, the assessee was directed to furnish replies on various points. Admittedly , the assessee could not turn up on this date appointed for compliance. A reply to questionnaire was however filed on next day i.e. 29.11.2016. The AO however claimed to have passed the assessment order under s.153A of the Act in the meanwhile i.e. on 28.11.2016 itself (appointed date of hearing) after taking necessary approval of Joint Commissioner under s.153D of the Act (involving 28 cases including 14 captioned appeals). In this context, it is the case of the assessee that firstly y; the AO ought to have waited at least till the closure of the date of compliance i.e. 28.11.2016 and he could have passed only after that date; secondly , it is difficult to fathom that the AO would be able to prepare 28 draft orders in a span of 2-3 hours involving complex issues in search matters; and thirdly, it is yet more difficult to fathom that the superior authority y could plausibly y go through the assessment records and the draft assessment orders and grant an informed approval with objective application of mind to such draft orders in search matters (involving contentious and complex legal and factual issues) on the same day in a further squeezed time available to the JCIT. In short, it is the case of the assessee that the time available at the disposal of the AO is hardly 5-6 hours of the day after the lapse of the appointed time on the date of hearing. In this very short period, apart from all other routine work carried out, the AO has purportedly drafted 28 assessment orders and forwarded the same to the JCIT (superior authority ) together with case records and the JCIT, in turn, has perused such voluminous case records and granted approval contemplated under s.153D of the Act to enable the AO to pass a formal final assessment order. 14.1 At the first look itself, we find considerable weight in the aforesaid plea of the assessee towards implausibility of such overzealous actions in a span of few hours. The unrealistic swiftness in the action of the AO in preparing 28 cases of such large stake and magnitude (without waiting for any time for compliance of a very IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 31 - short notice) and approval thereon by the superior authority in a spur of moment is totally beyond any comprehension and does not accord with normal conduct of a responsible statutory functionary. The presence of any countervailing circumstances for passing orders without providing minimum opportunity to assessee to meet the allegations is not shown by the Revenue. It is a classic example of AO acting in subterfuge and cavalier manner while conducting the whole affairs. 14.2 Pertinent here to say, the proceedings before AO are quasi-judicial proceedings and all the incidents of such proceedings was expected to be observed without laxity before the result of the proceedings were determined. The Revenue Officers must realize that statutory duties conferred on them are in the nature of a trust. They hold office as trustees of the public at large while dealing with public revenue and public money. We are unable to visualize as to how such long and complex assessment orders could be prepared and finalized for the approval of superior authority in few hours even if some ongoing draft works were assumed to be available in this regard. A natural question would arise as to what was the hurry for doing so? When seen in conjunction, it is yet more difficult to perceive that an y superior authority, expected to keep a strict vigil on the actions of AO under s.153D of the Act, can possibly grant approval to such longish and high staked matters of as many y as 28 cases in virtually y no available time and remit the same to the AO on the same day for passing final order. Such inordinate and extravagant speed smacks of pretense and provokes us to think of colossal abnormality y in conduct of the authorities concerned. 14.3 Needless to say, provision of Section 153D of the Act casts onerous responsibility y on the superior authority y to look into the draft assessment framed by the subordinate officer with some degree of objectively. Apparently y, the whole exercise of the AO in claiming to have prepared assessment orders in as many as 28 cases within a short time available (after 11:30 a.m.) and approval thereon by the JCIT and closure of the assessment on the same day is not judicially palatable. As also observed earlier, the AO has prepared the draft assessment order without even waiting for completion of that date of hearing is gross sub-version of the quasi-judicial process and such ipse-dixit conduct deserves to be deprecated. The superior authority performing the solemn duty y to supervise the action of the AO claimed to have approved such large staked search matter in a spur of moment does not inspire any confidence in such hawkish supervisory process. When sequence of events are integrated and collated, the plea of the assessee that the whole exercise of the aforesaid revenue authorities are antedated cannot be refuted to be without any substance. The stand of the assessee that the assessment order in all probability is antedated to avoid consideration of reply of the assessee filed on 29.11.2016 also clinches for two more reasons; (i) the assessment order itself assertively refers to the reply of the assessee in response to the questionnaire IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 32 - dated 21.11.2016 as per para 5.4 of the assessment order. The order sheet, as a matter of record, clearly shows that no reply was filed till the date of passing of the order to such questionnaire i.e. till 28.11.2016. The reply y to questionnaire was filed on 29.11.2016. If the reply has been considered as asserted by the AO then a natural presumption would arise that assessment was kept open till at least 29.11.2016 and therefore the assessment order dated 28.11.2016 is clearly y antedated; & (ii) the assessment order has been sent by speed post on 14.12.2016 which clearly shows that the assessment orders which were passed with lightning speed but was languishing thereafter and dispatched after about two weeks from the date of passing the order. 14.4 The allegation of assessee is thus based on number of facts established by evidence and circumstances. Hence, whether the allegation made is sound or not must be determined by attaching weight to all facts cumulatively and by applying the test of preponderance of probabilities. The assessee is not expected to prove its case of antedating the order with mathematical precision where it is otherwise evident to a demonstrable degree. All that is required in such cases is the establishment of such a degree of probability that a reasonable person may, on its basis, believe in the existence of facts in issue. The conduct of Assessing Officer cannot be countenanced, howsoever soft stance we may incline to take. The conduct, when seen in totality y, is unprecedented and casts infallible impression that the assessment orders giving rise to the captioned appeals are antedated indeed and thus a nullity in the eyes of law. All the assessment orders are required to be cancelled at the threshold in such sordid circumstances. 14.5 It would however be also pertinent to delineate whether the so- called approval of JCIT under s.153D of the Act meets legal requirement or not. As repeatedly observed above, the JCIT purportedly carried out the exercise of granting approval in a baffling haste. The order sheets recorded by the AO shows that what was sent to the JCIT were only draft assessment orders seeking approval thereon. No reference to the assessment records also being sent together with the draft assessment orders is found in the order sheet. Communication/approval letter from JCIT is not placed before us by either side to examine this aspect. Considering these facts, the JCIT has presumably given approval while remaining oblivious of the assessment records. Notwithstanding aforesaid, the JCIT was expected to enquire into reply of the assessee in response to the questionnaire dated 21.11.2016 which was crucial and of utmost significance in the context of the allegations made by AO. JCIT however has summarily endorsed the action of the AO presuming no substance in replies allegedly filed without looking at it nor he could have seen such non-existent reply on 28.11.2016. Apparently, the approval granted by the JCIT, if any, suffers from inherent lack of application of mind on the draft assessment order and consideration of relevant assessment records. The purported approval so granted by the JCIT has been clearly reduced to an empty IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 33 - ritual rendering such approval to be invalid in the eyes of law. We also cannot loose sight of the fact that no minimal enquiry into the issues of substantial nature arising from the draft assessment orders have been made by the JCIT defeating the salutary purpose of Section 153D of the Act. 14.6 On appraisal of the facts and circumstances of the case and peculiarities of the instant case and having regard to the long line of judicial precedents in similar circumstances including Pr.CIT vs. Shreelekha Damani (2019) 307 ITR 218 (Bom), Geetarani Panda (supra), Rishabhbhai Buildwell P. Ltd. (supra), AAA Paper Marketing Ltd. (supra) and Indira Bansal (supra), we find no hesitation to hold that the action of the JCIT under s.153D of the Act is to be regarded as perfunctory and mechanical in subversion of the spirit of Section 153D of the Act. Such symbolic approval is unfounded in law. As a corollary, in the absence of any valid approval under s.153D of the Act, the respective assessment orders giving cause of action in the form of captioned appeals requires to be quashed on this score also.” 17. Apart from that the judgment dated 17.1.2020 passed by the Jabalpur Bench in case of Shri Tarachand Khatri vs. ACIT in ITA No.21/JAB/2019 for A.Y. 2016-17 whereby and whereunder, the approval granted under Section 153D of the Act in the identical facts and circumstances of the case has been found to be invalid and consequently, the entire assessment order found to be vitiated and thus quashed while allowing the appeal preferred by the assessee has been relied upon. The Ld. Bench has been pleased to observe as follows: “ 6. On Ground No.3, assessee challenged the approval granted by JCIT under section 153D without application of mind. 6.1. The approval under section 153D of the Act is filed at page-96 of the PB which reads as under : "GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX - CENTRAL RANGE, Room No. - 205, Aayakar Bhawan, Hoshangabad Road, Bhopal (M.P.)-462011 [e-mail], Telephone No.0755-2551326 F.No. JCIT (Central)/BPL/153D/2017-18/1401 IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 34 - Date 22.12.2017 To The Asstt. Commissioner of Income Tax (Central) Jabalpur. Sub:- Approval u/s 153D of the Income Tax Act, 1961 in the case of JHRC & Metro Group - reg. Please refer to your letter in F.No ACIT/Central/JBP/153D/2017-18 dated 22.12.2017 seeking approval u/s 153D of the IT Act, 1961 in the case of JHRC & Metro Group. 2. The AO has certified that: • Proper opportunity of being heard was given to the assessee on all the issues. • All the issues emanating from the material available on record have been examined properly and are incorporated in the draft orders. • Relevant seized documents were verified before passing the draft orders and are kept in safe custody. 3. Subject to the above observations, the draft assessment orders are hereby approved, as required under the provisions of section 153D of the Income Tax Act in the following cases of JHRC & Metro Group : S.No. Name of the Assessee PAN Draft Order u/s. A.Yrs. 1. Shri Tara Chand Khatri AIJPK7280K 153A 2010-11 to 2016- 17 Shri Ghanshyam Das Khatri AHMPK5704A 153A 2010-11 to 2016- 17 4. It should be ensured that the final assessment orders are passed and served on the assessee well in time. A copy of the final assessment order should be submitted this office for record. Sd/- Alpesh Parmar Joint Commissioner of Income Tax Central Range, Bhopal." IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 35 - 6.2. The letter of the A.O. requesting for grant of approval under section 153D is filed at page-97 of the PB. In the said letter the A.O. has merely stated that he has verified the seized material and given an opportunity to the assessee before passing the draft assessment order. He has referred to draft assessment order only and sought approval from the JCIT and the Office of the A.O. is situated at Jabalpur. The JCIT is having his Office at Bhopal. Nothing is brought on record if any material relating to the case or assessment record have been sent by the A.O. for appraisal of the JCIT before granting approval under section 153D of the I.T. Act. The JCIT also in his approval Dated 22.12.2017 (supra) has merely mentioned that A.O. has verified the facts of examining the material. Thus, it is clear that JCIT has not gone through the record or the material before granting approval under section 153D of the I.T. Act. The JCIT merely believed the certificate given by the A.O. The JCIT received letter of the A.O. Dated --.12.2017 [PB Pg.97] on 22.12.2017 and on the same day he passed the approval under section 153D of the I.T. Act. The Hon'ble Supreme Court in the case of Sahara India (Firm) vs., Commissioner of Income Tax & Another (supra) held as under : "Similarly, the requirement of previous approval of the Chief Commissioner or the Commissioner in terms of the said provision being an inbuilt protection against any arbitrary or unjust exercise of power by the AO, casts a very heavy duty on the said high ranking authority to see to it that the requirement of the previous approval, envisaged in the section is not turned into an empty ritual. Needless to emphasise that before granting approval, the Chief Commissioner or the Commissioner, as the case may be, must have before him the material on the basis whereof an opinion in this behalf has been formed by the A.O. The approval must reflect the application of mind to the facts of the case." ....................................... ...................................... “ 13.2. The ITAT, Jodhpur Branch in the case of Smt. Indira Bansal vs., ACIT (supra), held as under: "Conclusion : Jt. CIT having granted the approval under s. 153D on the very same day on which the forwarding letter seeking approval was received in his office, and circumstances indicate that this exercise was carried out by the Jt. CIT in a mechanical manner without proper application of mind and even without going through the records as the same were in Jodhpur while the Jt. CIT was at Udaipur, therefore, the approval granted by him cannot be sustained. Impugned assessments are annulled." IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 36 - 14. Considering the facts of the case in the light of above discussion, it is clear that assessee filed last reply before assessing officer at Faridabad on 29th January 2014 and according to Learned Counsel for the Assessee, it contained more than 500 pages. Therefore, it is difficult for the Assessing Officer at Faridabad to go through these voluminous papers and prepare a draft order on 30th January 2014, so that the draft order could be transmitted to the Addl. CIT at Chandigarh on same day. In reply to RTI application, the assessing officer has reported that no record of mode of dispatch of assessment record to the Addl. CIT is available with the Assessing Officer. Similarly, no record is available as to how the draft order and assessment record have been received by Addl. CIT at Chandigarh. The Addl. CIT, Chandigarh did not mention in his approval dated 31st January 2014 (supra), if he has gone through the assessment record or that assessment record was produced before him. Since no details are available on record about the mode, through which, assessment ITA.No.21/JAB/2019 Shri Tarachand Khatri, Jabalpur. record was transmitted by the assessing officer at Faridabad to Addl. CIT in Chandigarh and vice-versa by Addl. CIT, Chandigarh to Assessing Officer at Faridabad on the very next day would lead to suspicion, in explanation of A.O. if any, valid draft order was transmitted to the Addl. CIT within the time or if the Addl. CIT has communicated the approval under section 153D to the Assessing Officer at Faridabad on 31st January 2014. These facts would clearly show that the action of the Addl. CIT, Chandigarh granting approval in this case was, thus, a mere mechanical exercise, accepting the draft order as it is, without any independent application of mind on his part. Nothing has been clarified during the course of hearing to the effect that if Addl. CIT has gone through the assessment record, before accepting the draft assessment order. Thus, there was no application of mind on the part of the Addl. CIT before granting approval. The Addl. CIT, Chandigarh has merely gone through the draft assessment order as per PB-47. Therefore, the contention of Learned Counsel for the Assessee is justified that the approval was granted in a most mechanical manner without application of mind and such approval was intimated to assessing officer only on 5th February 2014, after passing of the assessment order on 31st January 2014. The above decisions are clearly applicable to the facts and circumstances of the case. In view of the above discussion, we are of the view that no valid approval/sanction have been granted by the Addl. CIT, Chandigarh before passing the assessment order in the matter. The requirement of Section 153D of I.T. Act, 1961, are not satisfied in this case. We accordingly hold that entire assessment order is vitiated and is null and void. We, accordingly, set aside the orders of the authorities below and quash the assessment order in the matter. Resultantly all additions stand deleted. In the result, Ground No.1.3 of the appeal of Assessee is allowed." 6.5. In the above case, an identical issue have been considered in the light of Judgment of Hon'ble Bombay High Court in the case of Pr. CIT vs., Smt. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 37 - Shreelekha Damani in Income Tax Appeal No.668 of 2016, Dated 27th November, 2018 and it was held that "requirement of Section 153D of the I.T. Act are not satisfied in the case. It was, therefore, held that entire assessment order is vitiated and is null and void. Therefore, it was set aside and quashed." In the present case, it is clear that A.O. did not refer to the seized material or the assessment record to the JCIT for his approval. It is not verified as to how the draft have been sent on the same day i.e., on 22.12.2017 to the JCIT from Jabalpur to Bhopal and as to how the approval have been received back on the same day i.e., on 22.12.2017 from Bhopal to Jabalpur. In the absence of any perusal of the record by the JCIT, it is clear that JCIT granted approval without application of mind and as such necessary conditions of Section 153D of the I.T. Act are not satisfied and as such the approval is invalid and bad in law. Consequently, the entire assessment order is vitiated and is liable to be quashed. Considering the facts of the case in the light of above decisions, it is clear that approval under section 153D is invalid and bad in law and as such we set aside the Orders of the authorities below and quash the assessment order. Ground No.3 of the appeal of the Assessee is allowed. Resultantly, all additions stand deleted. 7. In the result, appeal of Assessee allowed.” 18. The entire fact of the matter supported by sufficient documents, establishes that the approval given by the ACIT(Central), Bhopal, sitting at the camp office at Raipur was in hasty manner without going through the records which was lying at Bhopal, 800 kms. away from the said Raipur Camp office. The entire exercise of granting approval was done within a day. Since, the materials and/or relevant documents were not before the Ld. ACIT at his camp office at Raipur, there was no scope of applying his mind prior to such grant of approval in the draft order sent by the DCIT. It is a settled principle of law that the power to grant approval is not to be exercised casually or in routine manner rather the concerned authority should examine the entire materials before approving the assessment order. In this particular case, the statutory obligation cast upon the concerned authority has not been discharged in its true sense. The Revenue has also failed to place any cogent IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 38 - evidence justifying the fact of granting approval of the draft assessment order exercising adequate time and upon examining the material needs to be considered as per law in support of the approval. Thus, there is no proper application of mind but the ACIT (Central), Bhopal has rather carried out exercise in utmost haste and in a mechanical manner, not in terms of the mandate prescribed under Section 153D of the Act. The same, is, therefore, not found to be sustainable. We have also discussed different judgments passed by different judicial forums on the identical issue and has been inspired to come to the conclusion as made by us hereinabove. We, therefore, set aside the approval granted by the ACIT (Central), Bhopal. The consequential impugned assessment orders on this nonest approval under Section 153D of the Act are, thus, void-ab-initio and on this score alone, the entire proceeding is, thus, quashed. This covers both abated and unabated assessments. 19. We would also like to note that the ld. AR made vehement arguments in support of the order passed by the Ld. CIT(A) on another legal ground to the effect that in the absence of incriminating document found during the course of search, addition made in unabated assessment under Section 153A of the Act is bad in law and liable to be quashed. 20. It is an admitted position that A.Ys. 2008-09 to 2011-12 is a completed/unabated assessment. In fact, the search assessment under Section 153 of the Act was completed by the DCIT, Central Circle-1, Bhopal on 30.01.2015. The assessee submitted certain additional evidences under the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 39 - application under Rule 46A of the Income Tax Rules, 1962 before the First Appellate Authority and the same was duly admitted by him alongwith said additional evidences. The assessee had submitted these additional evidences annexing from page nos. 59 to 1094 to the paper book and same was, therefore, sent to the Ld.AO for his comments seeking for remand report. The assessee company further appeared before the Ld.AO and submitted explanation as sought for in the assessment proceeding. The remand report was duly filed on 27.09.2016. The contention of the Ld.AO in the remand report is as follows: “During the appellate proceedings the assessee has stated that the documents required by the A.O. during the assessment proceedings were provided sent to the counsel at Bhopal, however due to the non-compliance of the previous counsel, ex- parte assessment was done in this case and heavy additions were made by A.O. Now in appellate proceedings after change in counsel, the assessee had filed additional evidences and additional grounds of appeals and requested to consider the same. The assessee's request to consider the additional evidences submitted at the stage of appellate proceedings are not acceptable as the assessee has been given sufficient opportunities during the course of assessment proceedings to produce the evidences before the A.O. The opportunities given by the A.O. during the assessment proceedings have been discussed in detail in the assessment order at the relevant issues. After the search proceedings, the seized documents have been provided to the assessee. Further, notices u/s 153A were issued on 30.06.2014 and served on the assessee to file the corrected returns of income for the year under consideration. Further, detailed questionnaire were issued on 07/08/2014. Again assessee has been given opportunity to furnish the written submission vide notice dated 15122014. Thereafter, the assessee vide show cause notice dated 07/01/2015 has once again to submit the required details. The final opportunity was granted to the assessee vide note entry dated 22/01/2015. Thus, the assessee has been given opportunity vide questionnaire dated 07/08/2014, 15/12/2014, 07/01/2015 and note sheet entry dated 22/01/2015 to furnish its submission before the A.O. Thus, Inspite of various opportunities, the assessee failed to furnish the complete details, evidences during the course of assessment proceedings and therefore, the request of the assessee to consider the additional evidences may be rejected. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 40 - 3. Additional grounds: The assessee has raised additional grounds in respect of additions made on various grounds for all the A.Ys. stating that- i) On the date of search assessment years 2008-09 to 2011-12 have been concluded / completed in the eyes of law, since the assessment reached to the finality, ii) No incriminating material/ document related to these additions is found during the course of search in respect of these assessment years. iii) The additions are made by the A.O. only on the basis of balancesheet filed before him & queries raised by him during assessment proceedings, iv) Such additions are not permissible as per law as held by various cited decisions. These decisions are discussed by the assessee in its written submission. These additional grounds of the assessee are not acceptable as various incriminating documents have been found & seized from the premises of the assessee during the course of search action. These documents i.e. LPI-1 Pages 1 to 48 are elaborately discussed in para 10 to 19 of the assessment order and additions on account of the incriminating documents have been made for A.Y. 2010-11 to 2013-14 under the various heads like unaccounted expenses, disallowances u/s 40A(3) etc., as the assessee failed to explain these documents during the course of assessment proceedings. The details thereof are as under: - SR. No. Document Para No. of Asst. Order A.Y. Nature of addition Addition made (in Rs.) 1 LPI-1 (1 TO 13) 10 2012-13 Unaccounted Expenditure 8,00,000/- 2 LPI-1 (14) 11 2012-13 -do- 1,20,000/- 3 LIP-1(15) 12 2012-13 -do- 20,000/- 4 LPI-1(16,16A) 13 2012-13 -do- 1,00,000/- 5 LPI-1(17) 14 2012-13 -do- 20,000/- 6 LPI-1(18 to 31) 15 2012-13 2013-14 -do- 25,81,000/- 7 LPI-1 (32,33) 16 2012-13 -do- 1,86,976/- 8 LPI-1 (47,48) 17 2011-12 to 2013- 14 -do- 62,65,000/- 9 LPI-1 (41) 18 2010-11 2011-12 Disallowance u/s 40A(3) 21,35,000/- 10 LPI-1 (42 to 45) 19 2010-11 to 2012-13 -do- 71,90,000/- IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 41 - Thus it is clear and admitted fact that various incriminating documents are found and seized from die premises of the assessee. Therefore the assessee's contention that no incriminating documents are found during the course of search is not correct. The assessee stated that no incriminating document related to the additions made, under consideration, is found during the course of search action and therefore the additions made only on the basis of balancesheets are not permissible as per law as held by various cited decisions. This claim of the assessee is also not acceptable. In the various decisions cited by the assessee it is mentioned that no additions can be made in respect of assessments concluded on the date of search unless some incriminating material is found during the course of search indicating some income and / or assets not disclosed in return of income. Here in the assessee's case, the incriminating material as per LPI-1, pages 1 to 48 are found and seized and on that basis additions are made as per para 10 to 19 of the assessment order on various heads like unexplained expenditure, disallowance u/s 40A(3) etc. It is not required that the incriminating documents related to additions is necessary to be found & seized from the plain reading of the decisions cited by the assessee. From the plain reading of various decisions cited by the assessee it is clear that the primary condition to assess the income of the assessee afresh is that some incriminating documents is to be found and seized during the course of search action and it is not necessary that the documents needs to be related to the additions made but the documents should indicate that some income and / or assets is not disclosed in the return of income. Here in the assessee's case various incriminating documents found and seized at LPI-1 (page 1 to 48) shows that the assessee has incurred various unaccounted expenses which are not recorded in the books of accounts, which form the undisclosed income of the assessee. Thus the primary condition that some incriminating documents / material indicating some income and / or assets not disclosed in return of income, is fulfilled in this case. Without prejudice to the above, it is necessary to discuss the following issue regarding necessity of incriminating seized material for making any addition / disallowance in the assessments passed u/s 153Ar.w.s. 143(3) of the I.T.Act, 1961. Section 153 A of the Act was introduced in the Income Tax Act by the Finance Act, 2003, 1.6.2003 along with Section 153B and 153C. Section 153A of the Act provides for assessment of search or requisition. For facility, Section 153A of the Act is extracted hereunder: "Assessment in case of search or requisition. 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person - IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 42 - where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling -within six assessment years referred to in clause in the prescribed form and verified in the prescribed 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 such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in -which 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: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this subsection pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in subsection (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.—For the removal of doubts, it is hereby declared that,— (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 43 - Further to state that Section 153A of the Act along with Section 153B and 153C replaced the "Post Search Block Assessment Scheme" in respect of any search under Section 132A or requisition under Section 132A made after 31.05.2003. Earlier, Chapter XIV-B provided for assessment to be made in cases of search and seizure, which was known as Post Search Block Assessment Scheme because this Chapter provided for single assessment to be made in respect of a block period of 10 assessment years prior to the assessment in which the search was made. With the introduction of Section 153A to Section 153C of the Act, the single block assessment concept was given a go-by. Under Section 153 A of the Act, in case where a search was initiated under. Section 132 of the Act or requisition of books of account, documents or assets was made under Section 132A after 31.5.2003, the Assessing Officer was required to exercise the normal assessment powers in respect of the previous year in which the search took place. A perusal of Section 153 A of the Act clearly indicates that it starts with a non obstante clause relating to normal assessment procedure which is covered by Sections 139, 147, 148, 149, 151 and 153 in respect of searches made after 31.5.2003. Under Section 153A of the Act, the Assessing Officer is bound to issue notice to the assessee to furnish return for each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. The Assessing Officer is required to assess or reassess the total income of the aforesaid years. Under the block assessment proceeding under Chapter XIV-B, only the undisclosed income found during the search and seizure operation were required to be assessed and the regular assessment proceedings were preserved. The introduction of Section 153A of the Act provides a departure from tills proceeding. Under Section 153A of the Act, the Assessing Officer has been given the power to assess or reassess the total income of the assessment years in question in separate assessment orders. Consequently, even though an assessment order has been passed under Section 143(1) (a) or under Section 143(3) of the Act, the Assessing Officer would be required to reopen these proceedings and reassess the total income taking notice of undisclosed income even found during the search and seizure operation. The fetter imposed upon the Assessing Officer under Sections 147 and 148 of the Act have been removed by the non obstante clause under Section 153Aof the Act. Section 139 binds the assessee to discharge his statutory liability while filing his ITR, It is statutory liability to follow provisions of chapter IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 44 - XVII B, 40A(3), 14 A rule 6D, 40(A)(2)(b) etc. Violation of above provisions is subject to disallowances and addition to the income. This is not a part of regular and routine addition and is not based on seized material. If any addition is made on this account, it is lawful and valid as the Act has mandated it. If any commission or omission is made by the assessee, it is mandatory to rectify his mistake by filing revised return under section 139(4), filing rectification application under section 154 or in search cases disclosed it under section 132(4) of the Act. The final opportunity of rectification is given through notice under section 153 A of the Act. If the case is scrutinized under section 143(3) of the Act, it is his duly to disclose this fact to the Assessing Officer. Notices under section 143(2) and 142(1) served during the assessment proceedings bind the assessee to assist the Assessing Officer disclosing all the material facts for proper assessment of his income. If anything has left for addition or disallowances, it is his statutory liability to disclose this fact. If the assessee looses all the opportunities for such disclosure, any addition made on account of mandatory provisions it can be added or disallowed during the course of assessment proceedings under section 153A of the Act. In such cases, addition and disallowances cannot be barred by incriminating seized material. In view of the provision of Act, the assessee was requested to file return of income u/s 153A of the IT Act in respect of six assessment years. Section 153A requires that sections 139 of the IT Act are also squarely applicable. While filing the return of income, it requires that all the statutory liabilities prescribed under the IT Act should be strictly followed. Therefore, if any of the statutory liabilities are violated by the assessee, it is the duty of the Assessing Officer that such violations should brought to the record and as per IT Act, remedial action should be considered. For example, if the assessee has violated the provisions of Section 40(a)(ia) of the IT Act and while filing the return of income u/s 153A of the IT Act, such disallowance has not been made in the computation & shown in the return of income and takes the plea that as no incriminating documents have been found/seized during the search proceedings in the matter, no disallowance can be made on this issue. This plea of the assessee is not acceptable on the reason that even if no incriminating documents on this issue have been found during the search proceedings, but the return filed u/s 153 A requires that the return filed is a return as if it is filed u/s 139 of the IT Act. During the assessment proceedings, the Act has empowered the Assessing Officer to conduct enquiry though Inspectors, by calling information under section 133(6) and by cross examine through issuing summons and commission. During the course of assessment proceedings IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 45 - under section 153A, if any enquiry conducted and material fact reveals contradictory to the facts detected in assessment proceedings under section 143(3) of the Act, it is statutory liability of the Assessing Officer to confront the facts and accordingly, addition or disallowances can be made which may be contrary to order passed under section 143(3) of the Act, Any enquiry based addition or disallowances made under the proceedings under section 153A of the Act, contrary to the order passed under section 143(3) previously, is legal and valid and does not require of being based on incriminating seized material. Enquiry based addition is legal and valid and does not falls under the case law quoted by the assessee. Similarly, even if no incriminating documents have been found/seized during the search proceedings and the department is in possession of information that the identity, genuineness and creditworthiness of the investor company are mere on paper, Section 153 A of the IT Act empowers the Assessing Officer to assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. In order to further strengthen the findings of the investigating agency, inquiries may be conducted by issuing of notices u/s 133(6) of the IT Act as well as by issuing commissions u/s 131D of the IT Act. As per provisions of Section 139 (1) of the Act, the assessee is required to furnish his income and investment in prescribed format and in the manner provided in the Act. Due to omissions or commission if any particular of his income or investment has been left, the Act facilitated the assessee to revise his ITR under section 139(4). Further, he may have file application under section 154 of the Act to rectify his mistake. In search proceedings, he was given further opportunity under section 132(4) and further by filing ITR under section 153A of the Act for disclosure of commission and omission of income and fact. If the assessee has made no efforts to disclose the facts affecting his income and the assessee has failed to avail the above facility provided in the Act then the contention of the assessee that the cases in which regular assessment has been made as on date of search should not be abated is not correct in view of the discussion made in aforesaid paragraphs. The addition made on account of any discrepancy found in account and ITR, addition can be made and cannot be restricted or limited to incriminating material which found during the course of search. The decisions held in the case of Filatex India Ltd. Versus Commissioner of Income Tax-IV -2014 (8) TMI 387-Delhi High Court and in the case of IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 46 - Commissioner of Income Tax Vs Raj Kumar Arora High Court of Allahabad are squarely applicable in the case. In the case of Filatex India Ltd. Versus Commissioner of Income Tax-TV - 2014 (8) TMI 387 - Delhi High Court it held that:- Under Section 153A of the Act, &e additions need not be restricted or limited to the incriminating material, -which -was found during the course of search. There cannot be multiple assessments, once Section 15BA of the Act is applicable. Section 153A(1) postulates one assessment, computing the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted or requisition -was made. Total income is assessed or reassessed in the order under Section 153A of the Act and the Section applies notwithstanding Sections 139, 147, 148, 149, 151 and 153 of the Act. In the case of Commissioner of Income Tax Vs Raj Kumar Arora High Court of Allahabad, it is held that: u/s 153A AO had been given power to assess or reassess total income of assessment years in question in separate assessment orders—Consequently, even though assessment order had been passed u/s 143(1) (a) or u/s 143(3), AO would be required to reopen those proceedings and reassess total income taking notice of undisclosed income found during search and seizure operation— Where assessment or reassessment proceedings had already been completed and assessment orders passed, then AO would be competent to reopen assessment proceeding already made—Reasons given by ITAT that no material was found during search could not be sustained—Addition made by AO found to be proper In view of the above discussion, any addition or disallowances made under the proceedings under section 153A is valid and lawful and cannot be restricted or limited to incriminating seized material even though the case is previously assessed under section 143(3). Enquiry based addition can be made if the facts is contrary to the findings made in the order under section 143(3) of the Act. Any mandatory violation made by the assessee, subject to addition or disallowances even if no incriminating documents found during the course of search and if the Assessing Officer failed to detect, during the assessment proceedings under section 143(3) of the Act. In view of the above discussion, objection raised by the assessee deserves to be rejected. 4. Without prejudice to the above, as directed by the Hon'ble CIT(A), vide letter dated 10/08/2016, the additional evidences submitted by the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 47 - assessee are verified 7 examined and the report in this regard is submitted as under: - (Since the issue involved are common in various assessment years, the report is submitted on issue basis). 4.1 Unexplained cash credits u/s 68: (Unsecured loans) A.Y. 2008-09 to A.Y. 2013-14 During the course of assessment proceedings the assessee has been asked to prove the identity, creditworthiness and genuineness of the unsecured loans received by it from 19 parties. Out of these the assessee has failed to furnish the required details in respect of following 14 parties and therefore additions are made on this head as unexplained cash credits u/s 68 for different A.Ys. as under: i. M/s. Beneficial Securities Pvt. Ltd. Rs. 18,00,000/- A.Y. 2008-09 ii. Shri S. K. Makhija Rs. 1,50,000/- A.Y. 2008-09 iii. M/s Sujoy Fiscal Pvt. Ltd. Rs. 1,50,00,000/- A.Y. 2008-09 iv. Shri Sunil Makhija Rs. 2,00,000/- A.Y. 2008-09 v. Shri Yogesh Makhija Rs. 1,50,000/- A.Y. 2008-09 vi. M/s. Gangotri Tracon Pvt. Ltd. Rs. 59,64,000/- A.Y. 2010-11 vii. M/s. Shri Dev Ganga Traders Rs. 7,22,100/- A.Y. 2010-11 viii. M/s Decan Ferro Alloys Pvt. Ltd. Rs. 15,01,200/- A.Y. 2011-12 ix. M/s Shri Giriraj Smeltors Pvt. Ltd. Rs. 17,38,000/- A.Y. 2011-12 x. M/s Aarson Buildcon Pvt. Ltd. Rs. 55,00,000/- A.Y. 2012-13 xi. M/s IPSEL Venture Pvt. Ltd. Rs. 25,00,000/- A.Y. 2013-14 xii. Shri Moolchand Kukreja Rs. 1,50,000/- A.Y. 2013-14 xiii. Smt. Sadhana Ahuja Rs. 39,10,000/- A.Y. 2013-14 xiv. Smt. Simran Kaur Bhatia Rs. 7,88,000/- A.Y. 2013-14 .................................................................................... .................................................................................... In the appellate proceedings the assessee stated that the above loan is not a fresh loan received in A.Y. 2013-14 and therefore requested to delete the addition made for A.Y. 2013-14. On erification, it is seen that the above unsecured loan was received by the assessee in F.Y. 2011-12 relevant to A.Y. 2012-13 through cheque from the above person. In respect of above unsecured loan the assessee has submitted only confirmation letter and failed to prove the creditworthiness and genuineness of the loan transaction by submitting copy of ITR, Balancesheet, bank statement etc. of the said person. Therefore the said unsecured loan may be treated as unexplained credit in the books of the assessee. 4.2 Share application money: IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 48 - In the assessment order, the following additions are made on account of unexplained share application money u/s 68 of the I. T. Act: Assessment Year Amount Rs. 2008-09 1,26,00,000/- 2009-10 25,00,000/- 2010-11 8,80,60, 000/- Total 10,31,60,000/- In the appellate proceedings the assessee has not furnished any additional evidences other than those submitted before the Assessing Officer during the assessment proceedings. The submission made by the assessee during the assessment proceedings has already been considered by the Assessing Officer. Considering the above facts and since no additional evidences on the above issue has been submitted by the assessee at the stage of remand report, the additions made on this account may be confirmed in view of the detailed reasons and discussion made by the Assessing Officer in para 7 (page no. 6 to 29) of the assessment order. The correct position of year wise details of introduction of share capital and share application money has been submitted by the assessee during the course of appellate proceedings. It is seen that in the assessment order, the year wise details of introduction of share capital as mentioned above is not correct. On verification, the correct position of year wise details of introduction of share capital and share application is as under: Sr.No. Name of the person 2008-09 2009-10 2010-11 Total 1. Mahendra Ahuja 12550000 20900000 8770000 42220000 2. Roma Ahuja 50000 6200000 40000 6290000 3. M/s M.R. Agriculture - 24100000 3200000 4900000 27300000 4900000 Total 12600000 51200000 16910000 80710000 4. Share premium & share capital (Kolkatta Delhi) - 15000000 12300000 27300000 Grand Total 12600000 66200000 29210000 108010000 Therefore, the correct year wise additions on account of unexplained share capital and share application money introduced by the assessee company works out as under: Assessment Year Addition (Rs.) 2008-09 1,26,00,000/- IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 49 - 2009-10 6,62,00,000/- 2010-11 2,92,10,000/- Total 10,80,2 0,000/- The Hon 'ble CIT(A) is requested to kindly consider the correct additions in the respective assessment years and make necessary enhancements in A.Y. 2009-10 and reduction in A.Y. 2010-11. 4.3 Unexplained investment in land u/s 69B In the assessment order, the following additions are made on account of unexplained investment in land u/s 69B of the IT. Act for the A.Y. 2008-09 to 2011- 12. These additions are made on account of difference between actual purchase price and fare market value fixed by 'Stamp Valuation Authority in respect of the properties purchased by the assessee during the relevant period. The details of the properties purchased, stamp duty valuation, actual price and addition made by A.O. are as under: x s. No. Land purchased from Date of purchase, location of land, area of land Stamp duty value fixed by the 'SVA' Actual price paid for purchase of the land Addition made by the AO A.Y. 1 Shri Darshan Lal Nihal 31-03-08 Agriculture Land 0.66 Acre 22,69,500 9,00,000 13,69,500 2008-09 2 Goverdhan S/o Anand Ram 31-07-08 Agriculture Land 0.88 Acre 64,00,500 30,17,500 33,83,000 2009-10 3 Bisoha S/o Lt. Birju and others 03-06-08 Land at Vill: Tara 69,000 20,600 48,400 2009-10 4 Ballumal, Vinod, Rakesh, Jyoti, Anil, Smt Haridevi, Telibandha, Raipur (through POA- Suresh Ahuja) 20-8-09 Land Labhandih, 0.389 hec 53,48,750 34,94,200 18,54,550 2010-11 5 Ballumal, Vinod, Rakesh, Jyoti, Anil, Smt Haridevi, Telibandha, Raipur (through POA- Suresh Ahuja) 17-8-09 Land Labhandih, 0.387 hec 48,37,500 34,76,000 13,61,500 2010-11 IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 50 - 6 Smt Bharti W/o Namdev Pan/want, Shailendra Nagar, Raipur 19-8-09 Land Labhandih, 0.397 hec 49,62,500 35,63,000 13,99,500 2010-11 7 Sanjay, Kamal Kumar, Ishwar Kumar, Telibandha, Raipur (through POA- Shankar Nagdev) 20-8-09 Land Labhandih 0.425 hec 58,44,000 38,44,000 20,00,000 2010-11 8 Santaram, Santuram, Santosh S/o Indaldas Dhobi, Smt Shanti Bai, D/o Indaldas Dhobi, Vill- Tulsi, Block- Dharsinwa, Distt- Raipur 4-12-10, Land at Vill-Tulsi, PHNo. 111/41, Kh.No. 130/3, 0.115 hec, 0.028 acre 11,57,500 8,26,000 3,31,500 2011-12 The assessee has not submitted any additional evidences during the appellate proceedings. The above additions are made on the basis of value fixed by stamp value authority which has been accepted by the purchaser i.e. assessee for payment of stamp duty for purchase of these properties. The valuation fixed by one Government Authority i.e. Stamp Duty Valuation Authority has been accepted by the assessee for purchase of these properties and therefore the said value adopted for working of unexplained investment in purchase of property is in order. Therefore the submission of the assessee on this issue is not acceptable. The additions made on this account may kindly be confirmed. " 21. The assessee filed rejoinder before the Ld.CIT(A) and finally the Ld. CIT(A) vide order dated 30.09.2016 for A.Y. 2008-09 and the appellate order dated 18.10.2016 for A.Y. 2009-10 to 2011-12 granted relief by deleting the additions on the premise that in absence of any incriminating material found during the course of search, the addition is not sustainable in a completed assessment. Moreso, no notice under Section 143(2) of the Act had been issued for the alleged assessment years within time limit prescribed therein. While doing so, the Ld.CIT(A) relied upon the judgment passed by the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 51 - Hon’ble Delhi High Court in case of CIT vs. Kabul Chawla 380 ITR 573 (Del.). 22. The Ld. CIT(A) finally observed as follows: “8. I have carefully considered the facts of the case, the assessment order, submissions of the appellant, the remand report and the rejoinder. The appellant has taken multiple grounds of appeal on facts as well as law. Additional grounds of appeal number 2(a), 2(b) and 3 (a) raised by the appellant in the appeal goes to the very root of the matter and hence it is taken up first. The appellant has also raised the issue with respect to the legal requirement of limiting the scope of assessments under section 153 A of the Act to the extent of incriminating material found and seized during the course of search and for this purpose he has relied upon several case laws also. 9. The issue, therefore, which really arises here is the scope of the assessment u/s 153 A. Scope of the assessment means after the assumption of jurisdiction u/s 153 A on account of search u/s 132 of the Act whether the AO is competent to make a de novo assessment covering any and every aspect of the assessabilty or the assessment has to remain restricted in scope to just the incriminating material found and seized during the course of search. One of the most comprehensive authority dealing with this controversy is Hon'ble Delhi High Court judgment in the case of Kabul Chawla. 10. Honorable Delhi High Court in the case of CIT vs. Kabul Chawla [2015] 61 taxmann.com 412 (Delhi)\\a& ruled for the proposition that additions in the unabated assessments can be made only on the basis of incriminating documents found and seized during the course of search. After dealing with almost all the major rulings on this issue available at that point of time the Hon'ble High Court has laid down following propositions of law in the aforesaid case:- "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 AY'S immediately preceding the previous year relevant to the AY in which the search takes place. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 52 - ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AY's will have to be computed by the AOs as afresh 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 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." 11. Several cases have been decided by Tribunals and Courts around the country similarly or following the aforesaid judgment of the Hon'ble Delhi High Court upholding the proposition of law as laid down by aforesaid judgment. There is hardly any case subsequent to Kabul Chawla in which contrary view on the scope of assessment has been taken subsequent to the Kabul Chawla ruling. The IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 53 - appellant has, as reproduced above, in his submissions brought many such cases to my attention. Now there is almost total unanimity on the aforesaid legal interpretation. After Kabul Chawla detailed order setting the rules clear and straight, I have not come across any ruling from any court or tribunal holding a contrary view or interpretation. Some illustrative cases unambiguously upholding the aforesaid interpretation of the scope of assessment u/s 153 A rendered by various high courts and tribunals are as below; S. No. Judgment Citation 1. Suncity Projects (P) Ltd. vs. DCIT 2016-TIOL-643-ITAT-DEL dated 21.03.2016 2. CIT vs. Continental Warehousing Corporation Ltd. [2015] 63 taxmann.com 118 (Mum-Trib.) dated 12.10.2015 3. CIT vs. Continental Warehousing Corporation Ltd. [2015] 58 taxmann.com 78 (Bombay HC) dated 21.04.2015 4. Jai Steel (India) Ltd 219 Taxmann 223 (Rajasthan HC) dated 24.05.2013 5. Pr CIT vsKurele Paper Mills (P) Ltd ITA No. 369/2015 (Delhi HC) 6. CIT (C)-I vs MGF Automobiles Ltd. ITA No. 13,14/2014 (Delhi HC) 7. Jaipuria Infrastructure Developers (P) Ltd. vs ACIT ITA No. 5522, 5523/Del/2015 dated 27.06.2016 8. Pr. CIT vs Dinesh TarachandKasat Tax Appeal No. 469.470 of 2016 (Gujarat HC) dated 28.06.2016 9. CIT vsThakkarPopatlalVelji Sales Ltd 2016-TIOL-709-HC-MUM-IT dated 29.03.2016 10. ACIT vs. Mahagun Realtors (P) Ltd. 2016-TIOL-95 5-ITAT-DEL 11. All Cargo Global Logistics Ltd. [2012] 23 taxmann.com 103 (Mum.) (SB) 23. Upon considering the case made out by the respective parties and the judicial pronouncements as relied upon by the assessee, the Ld. CIT(A) concluded as under: “16. Considering the aforesaid judicial view on the scope of search assessments in the unabated cases which is consistently followed by jurisdictional Tribunal at Indore and several other High Courts and Tribunals, I have no option but to respectfully follow the view, that in search cases where assessments have not abated, scope of assessments is confined to only incriminating documents found and seized during the course of the search. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 54 - 17. In the aforesaid backdrop the additions made by the A.O have to be necessarily analyzed vis a vis the incriminating material found and seized as the return of income in this case for A.Y. 2009-10 was originally filed on 30,09,2009, for A.Y. 2010-11 on 05.01.2011 and for A.Y. 2011-12 on 23.03.2012. The search u/s 132 of the Act was conducted on 30th November 2012. leading to the assessment being final and unabated for these three assessment years in respect of those issues for which no incriminating material was found/seized during the course of search. It has also been repeatedly held by various courts/tribunals that if no notice under section 143(2) is issued within the permissible time for issue of the same, then for that particular assessment year the assessment is to be considered as complete and would not abate for the purposes of section 153 A of the Act. 18. From the remand report it can be seen that the A.O has specifically identified seized evidences wherever they were available and tabulated the same. All the additions made by the A.O for the unabated years will be examined in the aforesaid factual backdrop to ascertain whether those could be made as per the scope of assessment for assessments u/s 153A.” 24. The main contention of the assessee is this that during the course of search no incriminating material was found from the premises of the appellant which have further been considered Ld. CIT(A). We also do not find any mentioning of incriminating material in the order passed by the authorities below. 25. It is the contention of the assessee that no addition could be made in case of concluded assessment and/or unabated assessments in the absence of any incriminating material discovered during the course of search. In order to adjudicate this issue, we are conscious of the fact of the position of law propounded in various authoritative judgments regarding the scope of section 153A of the Act. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 55 - 26. First, we refer to the decision of Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla, reported in 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 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 IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 56 - 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.” 27. Hon’ble Court has specifically observed for the purpose of Section 153A assessment, completed assessments can be interfered with by the AO only on the basis of 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 proceeding. We further find that the Hon’ble Gujarat 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 on the identical situation framed the following question of law in the case of PCIT vs. Saumya Construction, reported in (2017) 81 taxmann.com 292 (Guj.): "[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 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?" IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 57 - 28. 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 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 IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 58 - 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. 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 IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 59 - 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 JayabenRatilalSorathia (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.” 29. Apart from that the Hon’ble Delhi High Court in the case of PCIT vs. Meeta Gutgutia, reported in (2017) 395 ITR 526 (Delhi) on the identical issue has held as under: “Sec. 153A is titled "Assessment in case of search or requisition". It is connected to s. 732 which deals with 'search and seizure'. Both these provisions, therefore, have to be read together. Sec. 153A is indeed an extremely potent power which enables the Revenue to reopen at least six years of assessments earlier to the year of search. It is not to be exercised lightly. It is only if during the course of search under s. 132 incriminating material justifying the reopening of the assessments for six previous years is found that the invocation of s. 153A qua each of the assessment years would be justified. If no incriminating material was found during the course of search in respect of an issue, then no additions in respect of any issue can be made to the assessment under ss. 153A and 153C.—CITvs. Kabul Chawla (2015) 281 CTR (Del) 45 : (2015) 126 DTR (Del) 130: (2016) 380ITR 573 (Del) followed. (Paras 56 & 60) There is no statement In the present case which can be said to constitute an admission by the assessee of a failure to record any transaction in the accounts of the assessee for the assessment years in question. On the contrary, the assessee herein stated that, she is regularly maintaining the books of accounts. The disclosure made in the sum of Rs. 1.10 crores was only for the year of search and not for the earlier years. As already noticed, the books of accounts maintained by the assessee in the present case have been accepted by the AO. In response to question No. 16 posed to PG, he stated that there was no possibility of manipulation of the accounts. There was no justification at all for the AO to IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 60 - proceed on surmises and estimates without there being any incriminating material qua the assessment year for which he sought to make additions of franchisee commission. The Tribunal was justified in holding that the invocation of s. 153A by the Revenue for the asst. yrs. 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those assessment years.— - Smt. Dayawanti through LH Smt. Sunita Gupta vs. CIT (2016) 290 CTR (Del) 361 : (2016) 143 DTR (Del) 209 : (2017) 390 ITR 496 (Del) distinguished. (Paras 67, 69 & 71) Conclusion : It is only if during the course of search under s. 132 incriminating material justifying the reopening of the assessments for six previous years is found that the invocation of s. 153A qua each of the assessment years would be justified; if no incriminating material was found during the course of search in respect of an issue, then no additions in respect of any issue can be made to the assessment under s. 153A.” 30. Recently, ITAT, Mumbai Bench in the case of Jasmin K. Ajmera Vs. DCIT, in ITA No.983/Mum/2020 in its order dated 02.11.2021 has considered the scope of section 153A of the Act wherein the Tribunal discussed proposition of law laid down by the Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra), and decision of Hon’ble Gujarat High Court in the case of CIT vs. Saumya Construction (supra) and finally since no incriminating material was unearthed during the search, no additions could have been made to income already assessed and concluded was of the finding of the Bench. The relevant discussion in this regard is as follows: “7. We have carefully heard the rival submissions and perused relevant material on record including the documents seized by the department from the assessee group during the course of search operations. We find that the assessee had filed original return of income on 20/07/2011 and search operations were carried out on assessee group on 25/07/2013. It is quite evident that on the date of search, no assessment proceedings were pending against the assessee and no notice u/s 143(2) was ever issued to the assessee till the date of search. The time limit for issuance of such notice had already expired on 30/09/2012 i.e. within 6 months from the end of relevant assessment year. Thus, AY 2011-12 was a non-abated year. In such a case, the additions which could be made has necessarily to be on the basis of IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 61 - incriminating material found by the department during the course of search operations as held by Hon'ble Bombay High Court in CIT V/s Continental Warehousing Corporation [2015 374 ITR 645]. In other words, unless any incriminating material was unearthed, no additions could be sustained in the hands of the assessee. So far as the arguments of revenue that intimation u/s 143(1) would not constitute an assessment, is concerned, we find that the factual matrix in decision rendered by Hon'ble Bombay High Court in CIT V/s Gurinder Singh Bawa (79 taxmann.com 398 05/10/2015) was similar wherein the original return was processed u/s 143(1) and the time limit for issuing notice u/s 143(2) had already expired. The Hon'ble Court chose to follow its own decision rendered in CIT Vs. Continental Warehousing Corporation [2015 374 ITR 645]. Therefore this argument would not hold much water which is also fortified by subsequent decision of Hon'ble Bombay High Court in CIT V/s Deepak Kumar Agarwal (398 ITR 586 11/09/2017) which held as under: - 20. At the outset, and since heavy reliance is placed by the Revenue on the Supreme Court judgment in Rajesh Jhaveri Stock Brokers (P.) Ltd. (supra), it would be proper to note the facts in the same. 21. There, the Assistant Commissioner of Income Tax challenged the correctness of the decision rendered by a Division Bench of the Gujarat High Court. That Division Bench judgment allowed the Writ Petition/Special Civil Application of the assessee. 22. The respondent-assessee, a private limited company, filed its return of income for the assessment year 2001-2002 on October 30, 2001, declaring total loss of Rs.2,70,85,105/-. That return was proposed under Section 143(1) of the IT Act accepting the loss returned by the respondent. A notice was issued under Section 148 of the IT Act on the ground that the claim of bad debts as expenditure was not acceptable. On 12th May, 2004, a return of income declaring the loss at the same figure as declared in the original return was filed by the respondent-assessee under protest. A copy of the reasons recorded was furnished by the Revenue on the request of the assessee sometime in November, 2004. The assessee raised various objections, both on jurisdiction and the merits of the subject matter recorded in the reasons. The Revenue disposed of these objections on 4th February, 2005 holding that the initiation of reassessment proceedings was valid and it had jurisdiction to undertake such an exercise. The notice under Section 148 of the IT Act dated 12th May, 2004 was challenged by the respondent-assessee. 23. That Writ Petition was allowed and hence, the Revenue was in Appeal. 24. Mr. Ahuja's argument overlooks this factual aspect and when he relies upon the observations of the Hon'ble Supreme Court, and particularly in paragraph 13, he forgets that they were made in the context of a challenge to IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 62 - the notice under Section 148 of the IT Act. The Supreme Court, in paragraph 13 of this judgment, noted that intimation under Section 143(1)(a) was given without prejudice to the provisions of Section 143(2). Though technically this intimation issued was deemed to be a demand notice issued under Section 156, that did not per se preclude the Assessing Officer to proceed under Section 143(2). The right preserved was not taken away. The Hon'ble Supreme Court referred to the period between April 1, 1989 and March 31, 1998, and the second proviso to Sub-section (1) Clause (a) of Section 143 and its substitution with effect from 1st April, 1998. The sending of intimation between 1st April, 1998 and 31st May, 1999 under Section 143(1)(a) was mandatory. That requirement continued until the second proviso was substituted by the Finance Act, 1997, which was operative till 1st June, 1999. 25. The Hon'ble Supreme Court therefore, relied upon these amendments and, tracing their history, held that the intimation under Section 143(1)(a) cannot be treated to be an order of assessment. That is how it referred to the Division Bench Judgment of the High Court at Delhi and explained the legal position. There was thus no assessment under Section 143(1)(a) and therefore, the question of change of opinion did not arise. A reference to Section 147 therefore, was made in the context of the Assessing Officer being authorized and permitted to assess or re- assess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. Before us, such is not the position, and even if this judgment of the High Court had been brought to the notice of the Division Bench deciding the Continental Warehousing Corpn. and All Cargo Global Logistics (supra), there would not have been any difference. Similar view has been expressed by Hon'ble Delhi High Court in CIT Vs. Kabul Chawla (380 ITR 573). 8. The Ld. CIT-DR has placed on record material seized from the assessee during search proceedings. The copies of the Panchnamas (page 1 to 6 of assessee's paper-book) have also been placed on record. Upon combined reading of all these documents, it could be gathered that none of the documents show that the share transactions carried out by the assessee were sham transactions done in collusion with tainted group of Shri Shirish C. Shah. There is no evidence of cash movement, in any manner. The documents seized from the assessee are in the nature of Share holding, holding stock summary, Ledger extracts etc. which are already part of assessee's regular books of accounts and have not been referred to by Ld. AO while making impugned additions in the hands of the assessee. In the assessment order, the long-term capital gains earned by the assessee have been held to be bogus in nature, however the same are not corroborated, in any manner, by the seized material. The allegations of Ld. AO are primarily based on the search findings in the case of Shri Shirish C. Shah and his group entities whereas no incriminating IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 63 - material has been seized from the assessee. In fact, in the remand report dated 09/01/2017 (page nos. 196 to 199) filed by Ld. AO during first appellate proceedings, it has categorically been admitted by Ld. AO that there was no incriminating material in the case of the assessee. Nothing has been shown to us to controvert these findings of Ld. AO. Therefore, the ratio of cited decisions as referred to in para-6 is quite applicable to the facts of the case. 9. So far as the admission in the form of assessee's own statement is concerned, we find that this statement has been retracted by the assessee by way of on affidavit on 02/08/2013 (page nos. 7 to 10 of assessee's paper book) and therefore, in the absence of any corroborative evidence / material supporting the admission made by the assessee, the addition would become unsustainable in the eyes of law. The additions made merely on the basis of retracted statement without there being any corroborative evidence / material, in our considered opinion, is not sustainable in law since the same run contrary to CBDT Circular F. No.286/2/2003-IT(Inv.), dated 10/03/2003 which has clearly stated that no attempt should be made to obtain confession / surrender as to the undisclosed income during search. Such confession, if not based on credible evidence, when retracted, would not serve useful purpose and an therefore, the authorities should focus on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income-tax department. Further, while recording statement during the course of search and seizure operation, no attempt should be made to obtain confession as to the undisclosed income and the addition should be made only on the basis of material gathered during search operations. Any action on the contrary has to be viewed adversely. The subsequent Circular F.NO.286/98/2013-IT (INV.II)] dated 18/12/2014 emphasizes upon need to focus on gathering evidences during search / survey and to strictly avoid obtaining admission of undisclosed income under coercion / undue influence. Therefore, the action of Ld. AO could not be said to be in line with these circulars issued by CBDT. 10. Proceeding further, it is settled legal proposition that the confession need corroboration with evidences. Though admission is an important piece of evidence but it is not conclusive and it is open to the assessee to show that it is incorrect. Therefore, retracted admission, in the absence of any incriminating material, would not be sustainable. In order to make a genuine and legally sustainable addition on the basis of surrender during search, it is sine-qua-non that some incriminating material must have been found to correlate the undisclosed income with such statement. The Hon'ble Delhi High Court in CIT V/s Harjeev Aggarwal (70 Taxmann.com 95; 10/03/2016) held that the statement recorded u/s 132(4) may also be used for making the assessment, but only to the extent it is relatable to the incriminating evidence/material unearthed or found during search. In other words, there must be a nexus between the statement recorded and the evidence/material IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 64 - found during search in order to sustain additions on the basis of recorded statement. Similar is the view of Hon'ble High Court in an earlier judgment of CIT V/s Sunil Aggarwal ( 379 ITR 367; 2016) and also the decision of Hon'ble Andhra Pradesh High Court in CIT v. Shri Ramdas Motor Transport (238 ITR 177) wherein Hon'ble Court refused to give any evidentiary value to the statement made by the assessee u/s 132(4) as the department could not find any unaccounted money, article or thing or incriminating document either at the premises of the company or at the residence of managing director or other directors. In such circumstances, the finding of the Tribunal that the statement of managing director recorded patently u/s 132(4) did not have any evidentiary value, was upheld. The ratio of all these decisions makes it clear that the surrendered income must be correlated with some incriminating material found during the course of search action so as to justify the addition. We find that there is no such incriminating material in the case of the assessee which would show that the transactions under consideration were sham transactions and there was any connection / nexus between the assessee and the group entities of Shri Shirish C. Shah. 11. We also find that this legal issue stood covered in assessee's favor by the decision of SMC bench of Tribunal rendered in the case of another assessee of the group i.e. Smt. Reena A. Ajmera V/s DCIT (ITA No.982/Mum/2020 dated 09/02/2021). The relevant observations were as under: - **** ***** **** 13. The Hon'ble Delhi High Court in the case of CIT v. Kabul Chawla (supra) held that - "completed assessments can be interfered with by Assessing Officer while making assessment under section 153A only on basis of some incriminating material unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment. Pursuant to search carried out in case of the assessee, a notice under section 153A(1) was issued. In course of assessment, Assessing Officer made addition to assessee's income in respect of deemed dividend. It was undisputed that assessment for assessment years in question had already been completed on date of search. Since no incriminating material was unearthed during the search, no additions could have been made to income already assessed. Consequently, the impugned addition was to be deleted". **** ***** **** 16. In all the above decisions of various Hon'ble High Court's, the legal position is that no addition can be made in case of an unabated assessment if no incriminating material is found in the course of search. On a perusal of the IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 65 - Assessment Order I noticed that there was no reference to any of the incriminating material found and seized in the premises of the assessee in the course of the search proceedings. The Assessing Officer in the Assessment Order refers to the seized incriminating material in the case of one Shri Shirish C. shah and the post search enquiries made in his case to make an addition in the hands of the assessee denying the long term capital gain claimed by the assessee. I also noticed from the remand report dated 09.01.2017 furnished by the Dy. CIT, CC-2(2), Mumbai to the Ld.CIT(A) -48 in the course of appeal proceedings wherein the Assessing Officer stated as under: - "Sir, in the present case under consideration, though no incriminating material was found, the assessee admitted undisclosed Income in his statement u/s.132(4) of the Income Tax Act 1961. It is totally immaterial that the assessee later on retracted the statements recorded u/s 132(4) of the Income Tax Act 1961. Therefore assessment of AY 2011-12 and AY 2012-13 which was made on the basis of undisclosed income admitted during the course of search is totally valid assessment and does not get affected by the decision of Hon'ble Bombay High Court in the case of Continental Warehousing (Supra)". 17. In this case it appears that except the statement of the assessee u/s. 132(4) agreeing for the addition there is no seized incriminating material found in the premises of the assessee in the course of assessment proceedings. When there is no incriminating material found in the course of search in assessee's premises the addition/disallowance cannot be made merely on the statements recorded in the course of the search proceedings. The facts in the above case are quite identical to the case before us since the additions permeates from same search action and similar additions were made in the case of this assessee. Therefore, the ratio of above decision is quite applicable here and we see no reason to deviate from the same. 12. Finally, on the given facts and circumstances, we concur with the submissions of Ld. AR that in the absence of any incriminating material, the additions could not be made in the hands of the assessee as per settled legal proposition. Accordingly, the impugned additions stand deleted. We order so. Since legal grounds raised by the assessee have been allowed, the adjudication on merits have been rendered merely academic in nature. The legal ground raised by the assessee stand allowed. The appeal stand allowed. 13. Facts as well as issues are quite identical in all the other appeals. The assessment orders as well as appellate orders are on similar lines. Aggrieved, the assessee is in further appeal before us with similar grounds of appeal. Facts being pari-materia, the same, our adjudication as above shall mutatis-mutandis apply to all these appeals. Accordingly, the legal grounds raised in all these appeals stand IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 66 - allowed and the impugned additions as made therein stand deleted. All these appeals stand allowed. Considering the ratio laid down in the judgments cited above and the fact of the case, we find substance in the case made out by the assessee. In the absence of incriminating material found during the course of course the addition is not found to be satisfied. 31. After careful reading of the order passed by the Ld. CIT(A) we find that the assessee’s main contention of not having any incriminating material in the possession of the Ld. AO found during the course of search of the premises of the assessee which ought to have been the main basis of reopening of an unabated assessment has been addressed properly. In addition to that addition has been made without due process of law has also been taken into consideration in its proper perspective. We further note that the ratio laid down in the judgment passed by the Hon’ble Gujarat High Court in the case of Saumya construction (supra) and the judgment passed by the Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) found to be rightly applicable under the facts and circumstances of the case in hand. In our considered opinion quashing of the proceeding initiated under Section 153A against the assessee by the Ld. CIT(A) applying the ratio laid down by the judicial forums as discussed hereinabove is, therefore, just and proper so as to warrant interference. Hence, on this ground also the appeals preferred by the Revenue are, therefore, found to be devoid of any merit and thus, dismissed, whereas the relevant appeals filed by the assessees stand allowed. IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 67 - 32. We note that we have already discussed and concluded the other legal ground of non-application of the provision of Section 153D of the Act in its proper perspective renders the approval dated 31.01.2015 null and void and the re-assessment orders in all years are, therefore, quashed. In fact, since the impugned order u/s 153A is hereby quashed, the appeals preferred by the Revenue are found to be devoid of any merits and, thus, dismissed. As all the appeals in hand have similar legal ground, resultantly all the appeals filed by the Revenue are dismissed whereas the appeals filed by the assessees are hereby allowed. 33. In the result, Revenue’s appeals are dismissed and assessee’s appeals are allowed. This Order pronounced on 02/11/2022 Sd/- Sd/- (BHAGIRATH MAL BIYANI) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore; Dated 02 /11/2022 S. K. Sinha, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Indore 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, (Dy./Asstt.Registrar) ITAT, Indore IT(SS)A No.290/Ind/2016 & Ors. (ACIT vs. M/s. M. Ahuja Project (India) Pvt. Ltd. & Ors.) - 68 - 1 . D a t e o f d i c t a t i o n o n 2 3 . 0 9 . 2 0 2 2 , 1 3 . 1 0 . 2 0 22 & 0 1 . 1 1 . 2 0 2 2 2 . D a t e o n w h i c h t h e t y p e d d r a f t i s p l a c e d b e f o r e t he D i c t a t i n g M e m b e r 0 1 . 1 1 . 2 0 2 2 3 . D a t e o n w h i c h t h e a p p r o v e d d r a f t c o m e s t o t h e S r .P . S . / P . S . 4 . D a t e o n w h i c h t h e f a i r o r d e r i s p l a c e d b e f o r e t h e D i c t a t i n g M e m b e r f o r p r o n o u n c e m e n t 5 . D a t e o n w h i c h t h e f a i r o r d e r c o m e s b a c k t o t h e S r. P . S . / P . S 6 . D a t e o n w h i c h t h e f i l e g o e s t o t h e B e n c h C l e r k 7 . D a t e o n w h i c h t h e f i l e g o e s t o t h e H e a d C l e r k ... ... ... .... 8 . T h e d a t e o n w h i c h t h e f i l e g o e s t o t h e A s s t t . R e gi s t r a r f o r s i g n a t u r e o n t h e o r d e r ... ... ... ... ... ... ... ... 9 . D a t e o f D e s p a t c h o f t h e O r d e r ... ... ... Date on which the typed draft is placed before the Dictating Member 19.12.2019 1. Other Member..................Date on which the approved draft comes to