Shri Sharadbhai Govindbhai Patel, Ahmedabad V. The Dy. Commissioner of Income Tax, Central Circle-1(2), Ahmedabad

ITSSA 302/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5760 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Cost of acquisition; Set aside
• Section: 143(3); 153A; 143(1); 139(1); 132; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER (SS) ./ I.T(SS).A. NO.302/AHD/2016 ( / ASSESSMENT YEAR : 2008-09) SHRI SHARADBHAI GOVINDBHAI PATEL 5, SUDARSHAN SOCIETY, PART-2 BEHIND DEVENDRA BUS STOP NARANPURA AHMEDABAD-380 013 / VS. THE DCIT CENTRAL CIRCLE-1(2) AHMEDABAD ./ ./ PAN/GIR NO. : ABRPP 9259 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MEHUL TALERA, AR / RESPONDENT BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING 23/10/2018 !'# / DATE OF PRONOUNCEMENT 10/12/2018 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-11, AHMEDABA D [CIT(A) IN SHORT] DATED 29.07.2016 PASSED FOR ASSESSMENT YEAR (AY) 2008-09. IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 2 - 2. THOUGH THE ASSESSEE HAS TAKEN FIVE GROUNDS OF APPE AL, BUT HER GRIEVANCES REVOLVE AROUND ONE ISSUE, NAMELY: (1) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADD ITION OF RS.6,99,793/- IN AN ASSESSMENT ORDER FRAMED U/S.153 A OF THE R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS 'THE ACT'). 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED HER RETURN OF INCOME ON 24/02/2008 U/S.139(1) OF THE ACT DECLARIN G INCOME AT RS.10,04,431/-. A SEARCH U/S.132 OF THE ACT WAS CO NDUCTED IN THE CASE OF MARUTI-SAVVY GROUP OF CASES ON 27/04/2011. ACCORDI NG TO THE ASSESSING OFFICER, THE ASSESSEE WAS ALSO COVERED UN DER SEARCH ACTION AND THEREFORE A NOTICE U/S.153A OF THE ACT WAS ISSUED O N 22/09/2011. IN RESPONSE TO THIS NOTICE, ASSESSEE HAS FILED HER RET URN OF INCOME DECLARING SAME INCOME AS WAS DECLARED U/S.139(1) OF THE ACT. THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER ON 08/02/2 014 U/S.143(3) R.W.S.153A OF THE ACT. THE ASSESSING OFFICER HAS O BSERVED THAT ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN ON SALE OF LAND A ND CLAIMED INTEREST EXPENSES OF RS.6,99,793/-. IN THE OPINION OF THE AS SESSING OFFICER, THE AMOUNT WHICH COULD BE CLAIMED WHILE COMPUTING CAPIT AL GAIN U/S.148 OF THE ACT ARE: (A) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER. (B) THE COST OF ACQUISITION F THE ASSET AND THE C OST OF ANY IMPROVEMENT THERETO. IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 3 - 4. ASSESSING OFFICER OBSERVED THAT EXPENSES CLAIMED BY THE ASSESSEE NEITHER QUALIFIES AS EXPENSES INCURRED IN CONNECTIO N WITH TRANSFER NOR AS COST OF ACQUISITION OR IMPROVEMENT. HENCE, HE ADDED A SUM OF RS.6,99,793/-. 5. DISSATISFIED WITH THE ORDER, ASSESSEE CARRIED TH E MATTER IN APPEAL BEFORE THE LD. CIT(A). IT WAS CONTENDED BY THE ASS ESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND QUA THIS ITEM AND, THEREFORE, NO ADDITION OUGHT TO BE MADE. HOWEVER, LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONCURRED WITH THE A SSESSING OFFICER. 6. BEFORE US, LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT SCOPE OF SECTION 153A OF THE ACT HAS BEEN EXPLAINED BY HONB LE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 183 (DE LHI) AS WELL AS BY HONBLE GUJART HIGH COURT IN THE CASE OF PR.CIT VS. SAUMYA CONSTRUCTION P.LTD. 387 ITR 529 (GUJ.). HE CONTEND ED THAT IF TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT WAS EXPIR ED ON THE RETURN FILED BY THE ASSESSEE U/S.139(1) AND NO INCRIMINATING MATERI AL WAS FOUND, THEN NO ADDITION CAN BE MADE IN HER ASSESSMENT U/S.153A OF THE ACT. 7. ON THE OTHER HAND, LD. DR CONTENDED THAT HONBLE SUPREME COURT HAS RECENTLY CONSIDERED THE RATIO PROPOUNDED BY IT THAT WHILE GIVING BENEFIT TO THE ASSESSEE STRICT INTERPRETATION IN FA VOUR OF THE REVENUE HAVE IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 4 - TO BE ADOPTED. HE FILED WRITTEN SUBMISSION AND REL IED UPON THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF M /S.DILIP KUMAR AND COMPANY (CIVIL APPEAL NO.3327 OF 2007). THE WR ITTEN SUBMISSIONS FILED BY THE LD.DR ARE AS UNDER:- OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS) , AHMEDABAD-5, ROOM NO.109,1 ST FLOOR, NATURE VIEW BUILDING NR. H.K. HOUSE, OFF ASHRAM ROAD, AHMEDABAD TELE. 079- 26584614 FAX- 079-26582196 NO.CIT(A)-5/CIT(DR)/'B' BENCH/ITAT-2/SGP/2018-2019 DATE: 24.10.2018 TO, HON'BIE MEMBERS B BENCH ITATAHMADABAD. SIRS SUB- WRITTEN SUBMISSION IN THE CASE OF SHRI SHARADBHAI G . PATEL - IT (SS) A NO. 302/AHD/2016 FOR A.Y. 2008-2009 - REG. PLEASE R EFER TO THE ABOVE. 2. THE ABOVE ASSESSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL AND PLEADED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING TH E COURSE OF SEARCH ACTION THEREFORE THE NOTICE ISSUED U/S. 153A IS INVALID AN AB-INITIO VOID AND RELIED ON DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F M/S. SAUMYA CONSTRUCTION (P.) LTD. (2017) 81 TAXMANN.COM 292 (GUJ.) AND M/S. KABUL CHAWLA (2015) 61 TAXMANN.COM 412 (DELHI) AND FEW OTHERS. 3. HOWEVER, I AM OF THE VIEW THAT THE LAW POSITION HAS BEEN CHANGED AND EVOLVED IN VIEW OF THE LATEST DECISION OF HON'BIE C ONSTITUTIONAL BENCH OF SUPREME COURT IN THE CASE OF M/S. DILIP KUMAR AND C OMPANY (CIVIL APPEAL NO. 3327 OF 2007) DATED 30 TH JULY, 2018. THE HON'BIE CONSTITUTIONAL BENCH HAS IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 5 - LAID DOWN THE PRINCIPLE AND RATIO FROM PARA 14 ONWA RD THAT WHILE ALLOWING ANY BENEFIT AND INTERPRETING THE STATUTE STRICT, INTERP RETATION IN FAVOR OF REVENUE SHALL BE ADOPTED. COPY OF THE DECISION IS ENCLOSED FOR READY REFERENCE. 4. THE HON'BIE CONSTITUTIONAL BENCH OF THE SUPREME COURT HAS FINALLY HELD AS UNDER - 1) EXEMPTION NOTIFICATION SHOULD BE INTERPRETED STR ICTLY; THE BURDEN OF PROVING APPLICABILITY WOULD BE ON THE ASSESSEE TO SHOW THAT HIS CASE COMES WITHIN THE PARAMETERS OF THE EXEMPTION CLAUSE OR EXEMPTION NOT IFICATION. ' (2) WHEN THERE IS AMBIGUITY IN EXEMPTION NOTIFICAT ION WHICH IS SUBJECT TO STRICT INTERPRETATION, THE BENEFIT OF SUCH AMBIGU ITY CANNOT BE CLAIMED BY THE SUBJECT/ASSESSEE AND IT MUST BE INTERPRETED IN FAVOUR OF THE REVENUE. (3) THE RATIO IN SUN EXPORT CASE (SUPRA) IS NOT COR RECT AND ALL THE DECISIONS WHICH TOOK SIMILAR VIEW AS IN SUN EXPORT CASE (SUPR A) STANDS OVERRULED. 5. TO UNDERSTAND THE LEGAL POSITION IN PROPER PERSPECTIVE SECTION 153A OF THE IT ACT IS REPRODUCED AS UNDER: '[ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN S ECTION 139, SECTION 147, SECTION 148, SECTION 149. SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON 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 [AND FOR THE RE LEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN CLAUSE (A), IN THE PRESCRIBED FORM A ND 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 ; IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 6 - (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX AS SESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE [AND FOR THE RELEV ANT ASSESSMENT YEAR OR YEARS]: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS]: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YE ARS [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN THIS [SUB- SECTION] 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: [PROVIDED ALSO THAT THE CENTRAL GOVERNMENT MAY BY R ULES MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASES WHERE ANY ASS ESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NO TICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATE LY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE [AND FOR THE RELEVANT ASSESSMENT YEAR O YEARS]:] [PROVIDED ALSO THAT NO NOTICE FOR ASSESSMENT OR REA SSESSMENT SHALL BE ISSUED BY THE ASSESSING OFFICER FOR THE RELEVANT ASSESSMENT YEAR OR YEARS UNLESS (A) THE ASSESSING OFFICER HAS IN HIS POSSESSION B OOKS OF ACCOUNT OR OTHER DOCUMENTS OR EVIDENCE WHICH REVEAL THAT THE INCOME, REPRESENT ED IN THE FORM OF ASSET, WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUN T TO FIFTY LAKH RUPEES OR MORE IN THE RELEVANT ASSESSMENT YEAR OR IN AGGREGATE IN THE RELEVANT ASSESSMENT YEARS; (B) THE INCOME REFERRED TO IN CLAUSE (A) OR PART THEREOF HAS ESCAPED ASSESSMENT FOR SUCH YEAR OR YEARS; AND (C) THE SEARCH UNDER SECTION 132 IS INITIATED OR REQUISITION UNDER SECTION 132A IS MADE ON OR AFTER THE 1ST DAY OF APRIL, 2017. EXPLANATION 1.FOR THE PURPOSES OF THIS SUB-SECTION , THE EXPRESSION 'RELEVANT ASSESSMENT YEAR' SHALL MEAN AN ASSESSMENT YEAR PREC EDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE WHICH FALLS BEYOND SIX ASSESSMENT YEARS BUT NOT LAT ER THAN TEN ASSESSMENT YEARS FROM IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 7 - THE END OF THE ASSESSMENT YEAR RELEVANT TO THE PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. EXPLANATION 2.FOR THE PURPOSES OF THE FOURTH PROVI SO, 'ASSET' SHALL INCLUDE IMMOVABLE PROPERTY BEING LAND OR BUILDING OR BOTH, SHARES AND SECURITIES, LOANS AND ADVANCES, DEPOSITS IN BANK ACCOUNT.] [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF AS SESSMENT OR REASSESSMENT MADE UNDER SUBSECTION (1) HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTION ( 1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHI CH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WIT H EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE [PRINCIPAL COMMI SSIONER OR] COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFE CT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, S ECTION 153B AND SECTION 153C. ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASS ESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RES PECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RA TE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR.' 6. IT CAN BE SEEN FROM PROVISION OF THE ABOVE SECTI ON THAT NO WHERE IT IS MENTIONED THAT ASSESSMENT U/S 153A CAN BE MADE ONLY IF ANY INCRIMINATING MATERIAL IS FOUND DURING THE SEARCH. HOWEVER IF WE CAN ANALYZE THE PROVISION PROPERLY THAN IT IS EVIDENT THAT THE ISSUANCE OF NO TICE U/S 153A OF THE ACT IS MANDATORY AND AUTOMATIC AO DOES NOT HAVE ANY DISCRE TION IN ISSUING NOTICE U/S 153A . AS PER THE PROVISION OF SECTION 153A(1) (B) WHENEVER ANY SEARCH HAS BEEN CONDUCTED AFTER MAY, 2003 THE A.O. SHALL ASSES S OR REASSESS THE TOTAL INCOME OF SIX (6) ASSESSMENT YEARS IMMEDIATELY PREC EDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. SO THERE IS NO PRE REQUISITION TO HAVE THE INCRIMINATING MATERIAL IN HAND BEFORE ISSUING NOTICE U/S 153A OF THE ACT. THE RE IS NO CONDITION LAID DOWN IN THE ACT THAT INCRIMINATING MATERIAL HAS TO BE CO LLECTED DURING THE SEARCH IF NOTICE U/S 153A IS TO BE ISSUED. SINCE WHILE COMPLE TING THE ASSESSMENT THE AO IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 8 - SHALL ASSESS OR REASSESS THE TOTAL INCOME' OF THE ASSESSEE THEREFORE HE HAS TO CONSIDER ALL/ANY MATERIAL WHETHER FOUND DURING THE SEARCH OR DETECTED DURING THE ASSESSMENT PROCEEDING WHILE FRAMING THE ASSESSM ENT ORDER U/S 153A OF THE IT ACT. 7. THUS IT IS EVIDENT FROM THE PROVISION OF THE IT ACT AND PRINCIPLE LAID DOWN BY THE CONSTITUTIONAL BENCH OF THE SUPREME COURT THAT NO BENEFIT SHALL BE GIVEN TO THE ASSESSEEE IF IT IS NOT EXPLICITLY GIVEN/PROVIDE D BY THE ACT. THOUGH THE ABOVE DECISION WAS RENDERED IN CUSTOMS DEPARTMENT PROCEED ING HOWEVER THE RATIO LAID DOWN IS EQUALLY IMPORTANT AND APPLICABLE IN AN Y OTHER LEGAL PROCEEDING INCLUDING INCOME TAX ACT ALSO. IN VIEW OF THE ABOVE LEGAL POSITION, IT TRANSPIRE THAT THE AO AND HIGHER APPELLATE AUTHORITY SHALL AD OPT STRICT INTERPRETATION OF STATUTE IN FAVOR OF REVENUE WHILE ALLOWING ANY BENE FIT AND SHALL NOT HAVE ANY DISCRETION WITH RESPECT TO ISSUANCE OF NOTICE U/S 1 53A OF THE IT ACT. 8. THEREFORE IT IS REQUESTED THAT THE PRINCIPLE LAI D DOWN IN THE LATEST DECISION OF HON'BLE SUPREME COURT IN THE CASE OF M/S. DILIP KUM AR AND COMPANY (CIVIL APPEAL NO. 3327 OF 2007) DATED 30 TH JULY, 2018 MAY BE APPLIED IN THE APPEAL UNDER CONSIDERATION WHILE DECIDING THE ABOVE APPEAL . YOURS FAITHFULLY CIT(APPEALS)-5/(DR) 'B' BENCH, (ITAT)-2, AHMEDABAD 8. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD. HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. KABUL CHAWLA (SUPRA) HAS EXAMINED SCOPE OF SECTION 153A. AFTER A DETAILED ANALYSIS HONBLE COURT HAS SUMMARIZED LEGAL PROPOSITION EMER GING OUT FOR APPLICATION OF SECTION 153A. SUCH PROPOSITION READ S AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DE CISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 9 - 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 SE ARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEV ANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVI OUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. TH E AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED S IX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEAR S. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH B OTH 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 RELA TED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR M ADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESS MENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REAS SESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOS E PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEED INGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A ME RGES 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 O N 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 INCRI MINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUM ENTS OR UNDISCLOSED INC OME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH W ERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. IT IS ALSO PERTINENT TO NOTE THAT IN THE CASE OF C IT VS. KABUL CHAWLA (SUPRA) HONBLE COURT HAS OBSERVED THAT RETU RN FOR ASSTT.YEARS 2002-03, 2005-06 AND 2006-07 WERE ACCEPTED UNDER SE CTION 143(1) OF THE IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 10 - ACT. THUS, HONBLE COURT HAS CONSIDERED THIS ACCEP TANCE OF RETURN AS AN ASSESSMENT MADE UNDER SECTION 143(1). IN CONCLUDIN G PARAGRAPH, THE HONBLE COURT HAS HELD THAT ON THE DATE OF SEARCH, ASSESSMENTS FOR A.YS. 2002-03, 2005-06 AND 2006-07 ALREADY STOOD COMPLETE D AND NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH, THEREFORE, NO ADDITION SHOULD HAVE BEEN MADE TO THE INCOME OF THE ASSESSEE. 9. APART FROM THE ABOVE, IT IS IMPERATIVE UPON US T O TAKE NOTE OF THE RATIO LAID DOWN BY THE HONBLE GUJARAT HIGH COURT I N THE CASE OF SAUMYA CONSTRUCTION LTD. (SUPRA): 18. IN THIS CASE, IT IS NOT THE CASE OF THE APPELL ANT THAT ANY INCRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CO NSIDERATION WAS FOUND DURING THE COURSE OF SEARCH. AT THE RELEVANT TIME W HEN 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 WHI CH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE MADE, IN OTHER WORDS, WHE N 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 WHIC H WAS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEMENT O F ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIKE THE PRESENT O NE, WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER AND NO ASSESSMENT OR REASSESSME NT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR M AKING OF REQUISITION UNDER SECTION 132A, WHILE COMPUTING THE TOTAL INCOME OF T HE 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 IN CRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, HOWEVER, IT IS O N THE BASIS OF SOME MATERIAL COLLECTED BY THE ASSESSING OFFICER MUCH SUBSEQUENT TO THE SEARCH, THAT THE IMPUGNED ADDITIONS CAME TO BE MADE. IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 11 - 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEND ED 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 T HE 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 T HE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT. UNDER SECTION 153 A 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 F OUND, NO ADDITION OR DISALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESS MENT YEAR IN EXERCISE OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIE R ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COM PLETE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA), JODHPUR V. ASSISTANT COMMISSIONER OF INCOME TAX (SUPRA). BE SIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF TH IS COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX-1 V. JAYABEN RATILAL SOR ATHIA (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 AS SESS THE RETURN WITH RESPECT TO SIX PRECEDING YEARS; HOWEVER, THERE MUST BE SOME INCRIMINATING MATERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT T O THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSMENT YEAR. 20. FOR THE FOREGOING REASONS, IT IS NOT POSSIBLE T O 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 QUES TION OF LAW, WARRANTING INTERFERENCE. THE APPEAL, THEREFORE, FAILS AND IS, ACCORDINGLY, DISMISSED. 10. IN THE LIGHT OF THE ABOVE, LET US EXAMINE THE F ACTS OF THE PRESENT CASE. A PERUSAL OF THE ASSESSMENT ORDER WOULD REVE AL THAT ASSESSING OFFICER HAS NOT MADE REFERENCE TO ANY SEIZED MATERI AL. THE RETURN WAS FILED ON 24/12/2008 U/S. 139(1) OF THE ACT. ASSESS MENT YEAR INVOLVED IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 12 - HEREIN IS AY 2008-09. THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S.143(2) OF THE ACT WAS EXPIRED EVEN BEFORE CONDUCTING THE SEAR CH UPON THE ASSESSEE. THUS, THIS YEAR COULD BE DISTURBED BY THE ASSESSING OFFICER IF SOME MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. AS FAR AS THE SUBMISSIONS MADE BY THE REVENUE ARE CONCERNED, WE F IND THAT THESE ARE TOTALLY OUT OF CONTEXT. THE HONBLE SUPREME COURT H AS NOT INTERPRETED OR CONSTRUED SCOPE OF SECTION 153A OF THE ACT. THE JU DGEMENT WAS DELIVERED IN SOME DIFFERENT CONTEXT UNDER THE EXCIS E LAW. ON THE OTHER HAND, THE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT IS CATEGORICAL AND ON THIS POINT INVOLVED IN THE PRESENT APPEAL. 11. IN THE LIGHT OF ABOVE GENERAL DISCUSSION MADE B Y THE LD. CIT(DR) IN HIS SUBMISSIONS EXTRACTED (SUPRA), WE CANNOT IGN ORE THE BINDING PRECEDENT OF THE HONBLE JURISDICTIONAL HIGH COURT. WE COULD APPRECIATE AND GIVEN PREFERENCE TO THE CONTENTION OF LD.CIT-DR , HAD SCOPE AND INTERPRETATION OF SECTION 153A FALLEN FOR CONSIDERA TION BEFORE THE HONBLE SUPREME COURT. THE PROPOSITION CANVASSED BY THE LD .DR THAT PROVISIONS PROVIDING BENEFIT TO THE ASSESSEE OUGHT TO BE STRIC TLY INTERPRETED IN FAVOUR OF REVENUE IS CONCERNED, I.E. A PRINCIPLE PROPOUNDE D BY THE HONBLE SUPREME COURT FOR THE PURPOSE OF INTERPRETATION OF ANY PROVISION, NOTIFICATION, ETC. BUT THE DECISION HAS NOT OVERRUL ED THE DECISION OF THE HONBLE DELHI HIGH COURT AS WELL AS HONBLE JURISDI CTIONAL HIGH COURT RENDERED ON THE SCOPE OF SECTION 153A OF THE ACT. THEREFORE, WE DO NOT IT(SS)A NO.302 /AHD/2016 SHRI SHARADBHAI GOVINDBHAI PATEL VS. DCIT ASST.YEAR 2008-09 - 13 - FIND ANY MERIT IN THE SUBMISSION MADE BY THE LD.DR. THE ASSESSING OFFICER HAS MADE ADDITIONS WITHOUT SUPPORT ANY SEIZ ED MATERIAL WHICH IS NOT SUSTAINABLE. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE ADDITION. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 10 TH DECEMBER-2018 AT AHMEDABAD. SD/- SD/- ( AMARJIT SINGH ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 10/ 12 /2018 &.., .(../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-11, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD