M/S Rajat Minerals Pvt. Ltd., Ranchi V. DCIT, C.C.-1, Ranchi

ITSSA 41/RAN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8628 (ITAT-RANCHI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJEET SINGH
• Keywords: Depreciation; Income from undisclosed sources; Search and seizure; Document seized; Deemed to accrue or arise in india; Deemed dividend; Assessment record; Block assessment; Onus to prove; Documents seized; Set aside
• Section: 143(3); 153A; 2(22)(e); 143(1); 201; 251; 143(2); 48; 13; 15; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER () ./ I.T(SS).A. NOS. 41 TO 47/RAN/2019 ( ASSESSMENT YEARS : 2009-10 TO 2015-16) M/S. RAJAT MINERALS PVT. LTD. C/O SRI S. K. PODDAR, FLAT NO. 501, MAHABIR TOWER, MAIN ROAD, RANCHI, JHARKHAND - 834001 / VS. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1, RANCHI ./ ./ PAN/GIR NO. : AACCR6414L ( APPELLANT ) .. ( / RESPONDENT ) & () ./ I.T(SS).A. NOS. 48 TO 54/RAN/2019 ( ASSESSMENT YEARS : 2009-10 TO 2015-16) M/S. K. D. S. CONTRACTORS PVT. LTD. C/O SRI S. K. PODDAR, FLAT NO. 501, MAHABIR TOWER, MAIN ROAD, RANCHI, JHARKHAND - 834001 / VS. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1, RANCHI ./ ./ PAN/GIR NO. : AACCK5311K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI DEVESH PODDAR, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, CIT.D.R. !' DATE OF HEARING 05/11/2019 #$%& !' / DATE OF PRONOUNCEMENT 20/01/2020 IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 2 - / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS DIRECTED AT THE INSTANCE OF T WO DIFFERENT ASSESSEES ARISE FROM THE RESPECTIVE ORDERS OF THE C OMMISSIONER OF INCOME TAX (APPEALS) (CIT(A)) FOR DIFFERENT ASSESSMENT Y EARS AS TABULATED BELOW: IT(SS)A NOS. NAME OF ASSESSEE AY CIT(A)S ORDER DATED AOS ORDER DATED AOS ORDER UNDER SECTION 41/RAN/19 M/S. RAJAT MINERALS PVT. LTD. 2009-10 17.12.18 28.11.16 153A R.W.S. 143(3) OF THE INCOME TAX ACT (IN SHORT THE ACT) 42/RAN/19 -DO- 2010-11 -DO- -DO- -DO- 43/RAN/19 -DO- 2011-12 -DO- -DO- -DO- 44/RAN/19 -DO- 2012-13 -DO- -DO- -DO- 45/RAN/19 -DO- 2013-14 -DO- -DO- -DO- 46/RAN/19 -DO- 2014-15 -DO- -DO- -DO- 47/RAN/19 -DO- 2015-16 -DO- -DO- 143(3) OF THE ACT 48/RAN/19 M/S. K.D.S. CONTRACTORS PVT. LTD. 2009-10 30.11.2018 -DO- 153A R.W.S. 143(3) OF THE ACT 49/RAN/19 -DO- 2010-11 -DO- -DO- -DO- 50/RAN/19 -DO- 2011-12 -DO- -DO- -DO- 51/RAN/19 -DO- 2012-13 -DO- -DO- -DO- 52/RAN/19 -DO- 2013-14 -DO- -DO- -DO- 53/RAN/19 -DO- 2014-15 -DO- -DO- -DO- 54/RAN/19 -DO- 2015-16 -DO- -DO- 143(3) OF THE ACT 2. THE CAPTIONED APPEALS CONCERN AYS. 2009-10 TO 20 15-16 IN THE CASE OF CAPTIONED ASSESSEES WHO ARE STATED TO BE HAVING TRANSACTIONS WITH PADAM KUMAR JAIN GROUP. IN VIEW OF THE SIMULTANEOU S SEARCH CONDUCTED ON BOTH THE ASSESSEES AND ISSUES BEING INTERLINKED AND SIMILAR, ALL THE CAPTIONED APPEALS OF BOTH ASSESSEES HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY COMMON ORDER. 3. FOR THE SAKE OF CONVENIENCE AND TO BEGIN WITH, W E SHALL FIRST TAKE UP THE APPEAL CONCERNING M/S. RAJAT MINERALS PVT. L TD. CONCERNING AY 2009-10 IN IT(SS)A NO. 41/RAN/2019 FOR APPRECIATION OF FACTS AND ADJUDICATION OF THE COMMON ISSUES INVOLVED. IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 3 - IT(SS)A NO. 41/RAN/2019-AY-2009-10 (IN CASE OF M/S. RAJAT MINERALS PVT. LTD.) 4. GROUND OF APPEAL RAISED BY THE ASSESSEE ARE REPR ODUCED HEREUNDER: 1. FOR THAT SEARCH AND SEIZURE OPERATION WAS ONLY CARRIED OUT AT THE TRANSIT OFFICER OF THE APPELLANT WHEREAS THE HEAD O FFICE OF THE APPELLANT WAS REGISTERED IN KOLKATA AND THE DIRECTO RS OF THE APPELLANT RESIDES IN UNA, HIMACHAL PRADESH SINCE LA ST 15 YEARS. NO INCRIMINATING MATERIAL OR PAPER RELATING TO THE APPELLANT WAS FOUND, AS SUCH, ASSESSMENT BEING COMPLETED U/S 153A IN ABSENCE OF ANY INCRIMINATING MATERIAL IS UNJUSTIFIED, ILLEG AL AND FIT TO BE CANCELLED. 2. FOR THAT NO NOTICE U/S 143(2) WAS SERVED UPON T HE APPELLANT OR ITS PRINCIPAL OFFICER / DIRECTOR. AS SUCH, THE ORDER OF ASSESSMENT PASSED IN ABSENCE OF NOTICE U/S 143(2) SERVED UPON THE APPELLANT IS AB INITIO VOID AND FIT TO BE CANCELLED. 3. FOR THAT THE APPELLANT HAS BEEN REGULARLY BEEN ASSESSED TO TAX U/S 143(1) OR U/S 143(3). AS MENTIONED ABOVE, DURING TH E COURSE OF SEARCH OPERATION NO INCRIMINATING DOCUMENT WHATSOEV ER WAS FOUND RELATING TO THE APPELLANT. AS SUCH, LD. AO WA S NOT JUSTIFIED IN DISTURBING THE COMPLETED ASSESSMENT AND MAKING A N ASSESSMENT U/S 151A BY MAKING MASSIVE ADDITIONS IN ABSENCE OF ANY INCRIMINATING MATERIAL. AS SUCH, THE PROCEEDINGS BE ING INITIATED U/S 153A AND ADDITIONS BEING MADE THEREBY ARE FIT T O BE DELETED. 4. FOR THAT LD. CIT(A) WAS NOT JUSTIFIED IN CONFIR MING THE ADDITION OF RS. 11,37,79,828/- U/S 68 BEING ALLEGED UNDISCLOSED INCOME OF THE ASSESSEE. RS. 3,91,27,737/- WAS ADDED UNDER THE HEA D SUNDRY CREDITORS AS SHOWN IN THE BALANCE SHEET AND RS.7,46 ,52,091/-WAS ADDED UNDER THE HEAD NET LIABILITY. THE AMOUNT CLAI MED UNDER LIABILITY ONLY APPEARED IN THE BALANCE SHEET AND WA S NOT CLAIMED AS EXPENSES FOR THE YEAR. AS SUCH, NO DISALLOWANCE IS CALLED FOR. 5. FOR THAT COMPLETE DETAILS WITH RESPECT TO SUNDR Y CREDITORS BEING ADVANCE RECEIVED FROM PARTIES AND OTHER CURRENT LIA BILITIES BEING TAXES PAYABLE, EXPENSES AND ETC. WAS FURNISHED BEFO RE THE LD. AO AND LD. CIT(A). THE AUTHORITIES BELOW WITHOUT CONSI DERING THE SUBMISSIONS AND THE DETAILS FIELD, ON BASIS OF AN A NONYMOUS TEP, MADE THE ALLEGED ADDITIONS IN ABSENCE OF ANY INCRIM INATING MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIO N. AS SUCH, THE ADDITION BEING MADE U/S 153A WHICH STANDS ORIGINALL Y ACCEPTED IS UNJUSTIFIED, ILLEGAL AND FIT TO BE DELETED. 6. FOR THAT LD. CIT(A) WAS NOT JUSTIFIED IN CONFI RMING THE ADDITION OF RS. 4,84,70,106/- U/S 69 BEING UNEXPLAINED INVESTME NT. FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE PURCHASES FIX ED ASSETS DETAILS OF WHICH WAS COMPLETELY REFLECTED IN THE AU DITED BOOKS. THE SOURCE OF THE PAYMENT STANDS EXPLAINED AS WAS M ADE THROUGH BANKING CHANNEL AND BILLS AS AVAILABLE WAS ALSO PRO DUCED BEFORE THE LD. AO MAKING THE ASSESSMENT. MOREOVER, WE WOUL D LIKE TO IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 4 - MENTION THAT THE DEPRECIATION CLAIMED AGAINST THE F IXED ASSETS WAS ALSO ALLOWED, AS SUCH, THE AUTHORITIES BELOW WERE N OT JUSTIFIED IN SUSTAINING THIS ADDITION IN ABSENCE OF ANY INCRIMIN ATING MATERIAL FOUND DURING THE SEARCH OPERATION. THE ADDITION MAD E IS FIT TO BE DELETED. 7. FOR THAT LD. CIT(A) WAS NOT JUSTIFIED IN CONFIR MING THE ADDITION OF RS. 11,05,71,212/-BEING DISALLOWANCE OF EXPENSES CL AIMED. THE AUTHORITIES BELOW CONFIRMED THE DISALLOWANCE TO THE TUNE OF 100% FOR THE EXPENSES CLAIMED UNDER PICKING EXPENSES. SC REENING EXPENSES, STACKING EXPENSES, BREAKING & SIZING, GEN ERAL EXPENSES, LOCAL SHIFTING EXPENSES. SALARY & WAGES, TEMPORARY HUT MAKING CHARGES. BUSH CUTTING EXPENSES, COMPRESSOR H IRE CHARGES, CRUSHER EXPENSES. POLLUTION CONTROL EXPENSES, ROAD REPAIRING EXPENSES AND PROCESSING COST ON MATERIALS. OTHER EX PENSES SUCH AS FUEL AND LUBRICANTS, PAYLOADER REPAIR & MAINTENA NCE, PROCLAIN REPAIR AND MAINTENANCE, DUMPER REPAIR & MA INTENANCE WAS DISALLOWED IN PART COMPLETELY ON ADHOC BASIS. 5. THE ASSESSEE HAS ALSO MOVED ADDITIONAL GROUNDS R AISING CERTAIN LEGAL OBJECTIONS WHICH ARE ALSO RECORDED AS UNDER: 1. FOR THAT THE ORDER OF ASSESSMENT IS SAID TO BE PASSED ON 28/11/2016 THE DATE ON WHICH COMPLIANCE WAS SOUGHT FOR VIDE DETAILED QUESTIONNAIRE DATED 21/11/2016. THE ASSESS EE SUBMITTED ITS REPLY TO THE SAID QUESTIONNAIRE ON 29/11/2016 W HEREIN WE WERE INFORMED THAT THE ORDER OF ASSESSMENT HAS ALREADY B EEN PASSED ON 28/11/2016. THIS BEING A SEARCH CASE LD. AO WAS MAK ING ASSESSMENT IN 28 CASES PERTAINING TO THE ASSESSEE G ROUP FOR WHICH IT IS SAID THAT LD. AO PASSED ORDER IN ALL 28 CASES ON THE VERY SAME DATE ON WHICH THE COMPLIANCE WAS SOUGHT FOR. F URTHER, FROM THE COPY OF THE ORDER SHEET IT IS SEEN THAT THE APP ROVAL OF LD. JCIT WAS ALSO OBTAINED ON THE DRAFT ORDER ON THE VERY SA ID DATE. ALL THIS INCIDENTS HAS TAKEN PLACE WITHIN A SPAN OF FEW HOURS. THUS APPROVAL OF LD. JCIT HAS BEEN OBTAINED WITHOUT ANY APPLICATION OF MIND OR RATHER HAS BEEN OBTAINED JUST IN A MECHA NICAL FORM AND NOT COMPLIED BY THE JUDICIOUS PROCESS. AS SUCH, WE BEG TO SUBMIT THAT THE ASSESSMENT BEING FRAMED U/S 153A/143(3) IS AB INITIO VOID, ILLEGAL AND FIT TO BE QUASHED, SINCE NO PROPE R APPROVAL OF LD. JCIT WAS OBTAINED. 2. FOR THAT IN CONTRARY WE ALSO BEG TO SUBMIT THAT THE ORDER PASSED ON 28/11/2016 HAS BEEN PASSED BACK DATED SINCE ON O NE HAND LD. AO HAS STATED THAT THE ASSESSEE DID NOT MAKE COMPLI ANCE TO ANY OF THE SHOW CAUSE NOTICE AND ON THE OTHER HAND LD. AO HAS STATED THAT THE REPLY OF THE ASSESSEE TO NOTICE DATED 21/1 1/2016 WHICH WAS FILED ON 29/11/2016 HAS BEEN CONSIDERED. AS SUC H, THIS SHOWS THAT THE ORDER HAS BEEN PASSED IN A HEIST MANNER WI TH A MALICE INTENTION. FURTHER, FROM THE RECORDS IT IS SEEN THA T THE ORDER OF ASSESSMENT WAS SENT TO THE ASSESSEE BY SPEED POST S OMETIME IN THE 2ND WEEK OF DECEMBER AND THE SAME WAS RECEIVED ON 1 4/12/2016. AS SUCH, IT IS CLEAR THAT THE ORDER HAS BEEN PASSED BACK DATED WITH A SIMPLE OBJECTIVE TO AVOID THE SUBMISSIONS OF THE ASSESSEE. IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 5 - WE PRAY THAT THE ABOVE LEGAL GROUND OF THE ASSESSEE MAY KINDLY BE ADMITTED AS AN ADDITIONAL GROUND AND BE ADJUDICATED UPON SINCE THE SAME GOES TO THE VERY ROOT OF THE ASSESSMENT AN D INVOLVES A LEGAL FINDING. RELIANCE IS PLACED UPON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF NTPC VS. CIT 229 ITR 383. 6. THE PRAYER FOR ADMISSION OF ADDITIONAL GROUNDS N OTED ABOVE WHICH ARE NOT SET FORTH IN MEMORANDUM OF APPEAL ARE BEING ADMITTED FOR ADJUDICATION IN TERMS OF RULE 11 OF INCOME TAX (APP ELLATE TRIBUNAL) RULES, 1963 OWING TO THE FACT THAT OBJECTIONS RAISE D IN ADDITIONAL GROUNDS ARE LEGAL IN NATURE FOR WHICH RELEVANT FACTS ARE ST ATED TO BE EMANATING FROM EXISTING RECORDS. 7. TURNING TO THE FACTS, A SEARCH AND SEIZURE OPERA TION UNDER S.132(1) OF THE ACT WAS CARRIED OUT IN THE BUSINESS AND RESI DENTIAL PREMISES OF PADAM KUMAR JAIN GROUP OF CASES AT RANCHI, CHAIBASA , BARBIL, CHENNAI ETC. ON 03.07.2014 AND SUBSEQUENT DATES. A SEARCH AND SEIZURE OPERATION WAS ALSO CARRIED OUT AT THE TRANSIT/BRANCH OFFICE/S ITE OFFICE OF THE ASSESSEE AND HIS GROUP CONSISTING OF M/S. RAJAT MINERALS PVT . LTD., K. D. S. CONTRACTORS PVT. LTD., K. D. SHARMA & SMT. TRIPTA S HARMA. NO SEARCH ACTION WAS STATED TO BE CARRIED OUT AT THE REGISTER ED OFFICE OF ASSESSEE OR ANY OTHER PLACE OF BUSINESS. THIS SEARCH WAS SAID TO BE A PART OF THE MAIN SEARCH CONDUCTED IN PADAM KUMAR JAIN GROUP OF CASES AND M/S. CORE MINERALS. AS NOTED, SIMULTANEOUS SEARCHES WERE ALS O CARRIED OUT ON THE CAPTIONED ASSESSEES NAMELY M/S. RAJAT MINERALS PVT. LTD. AND M/S. K. D. S. CONSTRUCTIONS PVT. LTD. PADAM KUMAR JAIN GROUP WAS MAINLY CONTROLLED/MANAGED BY SHRI PADAM KUMAR JAIN AND HIS TWO SONS SHRI ANAND JAIN AND SHRI ROHIT JAIN. THE GROUP IS MAINLY ENGAGED IN THE BUSINESS OF IRON ORE OR MINING AT BARBIL, ORISSA. M/S. RAJAT MINERALS PVT. LTD. IS, ENGAGED IN MINING/TRANSPORTATION AND OPERA TING FROM BARBIL, ORISSA AND HAVING BUSINESS ASSOCIATION WITH PADAM K UMAR JAIN. CONSEQUENT UPON SEARCH, A NOTICE UNDER S.153A OF TH E ACT WAS ISSUED ON THE CAPTIONED ASSESSEE AND CONSEQUENT THERETO, THE ASSESSEE FILED ITS RETURN OF INCOME FOR AY 2009-10 DECLARING TOTAL INC OME OF RS.8,05,88,600/-. THE RETURN OF INCOME FILED BY TH E ASSESSEE WAS SUBJECTED TO DETAILED SCRUTINY AFTER ISSUANCE OF VA RIOUS NOTICES. BEFORE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 6 - THE AO, IT WAS CONTENDED ON BEHALF OF THE ASSESSEE AT THE VERY OUTSET THAT NO INCRIMINATING DOCUMENTS WERE FOUND FROM THE PREM ISES OF ASSESSEE IN THE COURSE OF SEARCH ACTION UNDER S. 132(1) OF THE ACT AND ACCORDINGLY COMPLETED ASSESSMENT SHOULD NOT BE DISTURBED. AS P ER WRITTEN SUBMISSION FILED BY THE ASSESSEE BEFORE THE AO, THE ASSESSEE W AS DOING BUSINESS OF PURCHASE AND SALE OF IRON ORE AND DID NOT HOLD ANY SHARES IN ANY COMPANY OF SHRI PADAM KUMAR JAIN AND THE TRANSACTIONS OF SA LE AND PURCHASE WITH SHRI PADAM KUMAR JAIN AND HIS ASSOCIATE COMPANY WAS IN ORDINARY COUSE OF BUSINESS BETWEEN THE ENTITIES. IT WAS POINTED O UT THAT COPY OF SEIZED DOCUMENTS PRIMARILY CONTAINS COPY OF INVOICES SO RA ISED FOR FY 2008-09, 2009-10, 2010-11 & 2011-12. THE BUSINESS OF COMPANY CAME ALMOST TO HALT FROM JANUARY 2012. IT WAS THUS SUBMITTED THAT NO INCRIMINATING DOCUMENT WAS FOUND FOR 4 YEARS I.E. AYS. 2008-09 TO 2011-12. IT WAS FURTHER ASSERTED THAT NO DOCUMENT RELATING TO AY 20 12-13 TO 2015-16 WAS EITHER FOUND OR SEIZED WHETHER INCRIMINATING OR NON -INCRIMINATING. IT WAS THUS CONTENTED THAT IN THE ABSENCE OF ANY DOCUMENT OF INCRIMINATING MATTER FOUND (AYS. 2008-09 TO 2011-12) AND IN THE A BSENCE OF ANY DOCUMENT FOUND OR SEIZED AT ALL FOR AYS. 2012-13 TO 2015-16, THE UNABATED AND CONCLUDED ASSESSMENTS SHOULD NOT BE DI STURBED. IT WAS SUBMITTED THAT THE ASSESSEE HAS MERELY TRADED THROU GH PADAM KUMAR JAIN GROUP OF COMPANIES IN THE COURSE OF MINING BUSINESS AND HAS NO OTHER ASSOCIATION. THE AO HOWEVER PROCEEDED ON THE PREMI SE THAT DISCOVERY OF ANY INCRIMINATING DOCUMENT IS NOT A SIN QUA NON TO MAKE ASSESSMENTS UNDER S.153A OF THE ACT. THE AO OBSERVED THAT ISSU E OF WARRANT OF SEARCH AND SEARCH UNDER S.132 OF THE ACT IS SUFFICIENT FOR INITIATION OF PROCEEDINGS UNDER S.153A OF THE ACT AND ONLY CONDIT ION FOR INITIATION OF PROCEEDINGS UNDER S.153A OF THE ACT IS OCCURRENCE O F SEARCH UNDER S.132 OF THE ACT. IT WAS FURTHER OBSERVED THAT SECTION 1 53A OF THE ACT DOES NOT PROVIDE THAT ASSESSMENT/RE-ASSESSMENT SHOULD BE BAS ED ON INCRIMINATING MATERIAL ALONE AND THE AO IS EMPOWERED TO ASSESS O R RE-ASSESS THE TOTAL INCOME OF THE SIX FINANCIAL YEARS COVERED UNDER SE ARCH REGARDLESS OF PRESENCE OF INCRIMINATING MATERIAL. THE AO ALSO TO OK EXTENSIVE NOTE OF TAX EVASION PETITION DATED 21.11.2016 RECEIVED IN T HE COURSE OF ASSESSMENT BY HIM ALLEGING INCRIMINATING INFORMATIO N AGAINST THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 7 - ASSESSEE. THE AO PROCEEDED TO ASSESS THE INCOME ON THE BASIS OF SUCH TAX EVASION PETITION. IT WAS NOTED THAT AS PER THE BALANCE SHEET OF THE ASSESSEE COMPANY, SUNDRY CREDITORS / CURRENT LIABIL ITY TO THE TUNE OF RS.11,37,79,828/- REMAINS UNPAID FOR AY 2009-10 IN QUESTION. IT WAS POINTED OUT THAT THE ASSESSEE HAS FAILED TO DISCHAR GE THE ONUS PLACED UPON IT TO PROVE THE IDENTITY/CREDITWORTHINESS/GENUINENE SS OF THE CREDITORS. THE AO INVOKED SECTION 68 OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE IN THE ABSENCE SATISFACTORY EXPLANA TION ON SUCH CREDITS/LIABILITIES. 8. THE AO FURTHER NOTED WITH REFERENCE TO THE BALAN CE SHEET AND DEPRECIATION CHART THAT THE ASSESSEE HAS SHOWN TO H AVE INVESTED RS.4,84,70,106/- IN FIXED ASSETS DURING THE AY 2009 -10 IN QUESTION. THE NATURE AND SOURCE OF SUCH INVESTMENT WAS DOUBTED BY INVOKING SECTION 69 OF THE ACT. IN THE ABSENCE OF ONUS REMAINING ALLEG EDLY UNDISCHARGED, THE AO ADDED RS.4,84,70,106/- TO THE TOTAL INCOME OF TH E ASSESSEE. THE AO FURTHER DISALLOWED EXPENSES AGGREGATING TO RS.11,05 ,71,212/- UNDER VARIOUS HEADS, SUCH AS, PICKING EXPENSES, SCANNING EXPENSES, STACKING EXPENSES, DUMPER REPAIR AND MAINTENANCE, BREAKING & SEIZING EXPENSES ETC. AS NOTED THE IN THE ASSESSMENT ORDER. THE AO ACCORDINGLY ASSESSED THE TAXABLE INCOME OF RS.35,34,09,745/- AS AGAINST THE RETURNED INCOME OF RS.8,05,88,600/-. 9. AGGRIEVED BY THE AFORESAID ACTION OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) PASSED A CONS OLIDATED APPELLATE ORDER PASSED UNDER S.250(6) OF THE ACT FOR ALL THE ASSESSMENT YEARS I.E. AYS. 2009-10 TO 2015-16 IN QUESTION AND REJECTED TH E SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE. THE ACTION OF THE AO WA S AFFIRMED BY THE CIT(A) AND THE ADDITIONS MADE BY THE AO WERE UPHELD . 10. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEA L BEFORE THE TRIBUNAL SEEKING TO IMPUGN THE ACTION OF THE REVENUE AUTHORI TIES. IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 8 - 10.1 LEARNED COUNSEL FOR THE ASSESSEE ADVERTED TO T HE ADDITIONAL GROUNDS FILED BY THE ASSESSEE AT THE OUTSET AND SUBMITTED T HAT CERTAIN LEGAL OBJECTIONS OF OVERRIDING NATURE TO THE ASSESSMENT P ROCEEDINGS UNDER S.153A OF THE ACT ARE INVOLVED IN THE INSTANT CASE. 10.2 DELINEATING ON SUCH OBJECTIONS, THE LEARNED CO UNSEL REFERRED TO THE ASSESSMENT ORDER AND POINTED OUT THAT ALL THE ASSES SMENT ORDERS PROVIDING GENESIS TO CAPTIONED APPEALS ARE STATED TO BE PASSE D ON A SINGULAR DATE I.E. 28.11.2016. THIS IS ALSO INCIDENTALLY THE DATE ON WHICH THE COMPLIANCE WAS ALSO PARALLELLY SOUGHT BY THE AO WITH REFERENCE TO A DETAILED QUESTIONNAIRE DATED 21.11.2016 AS APPEARING AT PAGE NO.16 OF THE PAPER BOOK. THE ASSESSEE WAS DIRECTED BY THE QUESTIONNAIR E TO SUBMIT ITS REPLY IN A SPAN OF HARDLY 5 DAYS. STATEDLY, THE ASSESSEE DID SUBMIT ITS REPLY TO THE SAID QUESTIONNAIRE DATED 21.11.2016 BUT HOWEVER ON 29.11.2016 INSTEAD OF 28.11.2016 I.E. AFTER A DELAY OF ONE DAY . THE LEARNED COUNSEL PAUSED HERE TO SUBMIT THAT THE ASSESSMENT ORDER WAS PURPORTEDLY PASSED WITHOUT WAITING FOR THE COMPLIANCE EVEN TILL THE EN D OF THE APPOINTED DAY. THIS ACT OF AO FRUSTRATED WHATEVER LITTLE OPPORTUNI TY WAS PROVIDED FOR COMPLIANCE TO ASSESSEE. AGITATING THE ISSUE, THE L EARNED COUNSEL POINTED OUT THAT INSTANT APPEALS PERTAIN TO SEARCH MATTERS WHERE SUBSTANTIAL COMPLEXITIES ARE ORDINARILY INVOLVED. THE AO WAS M AKING ASSESSMENTS IN AS MANY AS 28 CASES PERTAINING TO ASSESSEE GROUP FO R WHICH THE AO PURPORTEDLY PASSED ORDERS (IN ALL 28 CASES ON THE S AME VERY DATE) WITHOUT WAITING FOR THE COMPLIANCE FROM THE CAPTIONED ASSES SEES SO ENJOINED WITH ONEROUS BURDEN TO RESPOND IN ALL CASES IN MERE 5 DA YS, TILL EVEN THE END OF DAY. IT WAS POINTED OUT THAT NOT ONLY THE ACTION O F THE AO WITHOUT WAITING EVEN TILL THE END OF THE DAY OF THE COMPLIANCE IN A S MANY AS 28 CASES IS MALAFIDE AND REPUGNANT, THE WHOLE ACTION OF THE AO TOWARDS PURPORTED COMPLETION OF ASSESSMENTS OF 28 CASES IN ONE SINGLE DAY IS HUMANLY IMPROBABLE GIVEN THE NATURE OF COMPLEXITY AND MAGNI TUDE OF ADDITIONS/DISALLOWANCES INVOLVED. THE WHOLE OF THE ACTION OF THE AO SMACKS OF BLATANT PREJUDICE AND IS WITHOUT AUTHORIT Y OF LAW. IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 9 - 10.3 ADVERTING FURTHER, THE LEARNED COUNSEL POINTED OUT THAT THE ASSESSMENT OF THE ASSESSEE UNDER S.153A OF THE ACT WAS SUBJECT MATTER OF APPROVAL OF THE SENIOR AUTHORITY NAMELY JCIT AS PRO VIDED UNDER S.153D OF THE ACT. THE AO HAS CLAIMED THAT HE HAS OBTAINED T HE APPROVAL OF THE JCIT (IN ALL 28 SUCH CASES) ON THE SAME DAY I.E. 28 .11.2016 FOR WHICH THE DRAFT ORDER WAS ALSO ADMITTEDLY PLACED BEFORE THE J CIT ON THAT VERY DAY. THE LEARNED COUNSEL CONTENTED THAT THE ENTIRE ACT I S BESET WITH UN-NATURAL AND UNHOLY SPEED ON THE FACE OF IT. THE LEARNED CO UNSEL FURTHER ASSERTED THAT THE PURPORTED ACT OF APPROVAL OF THE JCIT ON A SSESSMENT ORDERS PLACED BEFORE HIM ON THAT DAY ITSELF AND OBTAINED ON THE S AME DAY (IN AS MANY AS 28 CASES) RELATING TO SEARCH IS HIGHLY IMPROBABLE A ND A NEAR IMPOSSIBILITY. IT IS NOT HUMANLY POSSIBLE TO LOOK INTO ASSESSMENT RECORDS AS WELL AS DRAFT ASSESSMENT ORDERS THEREON AND APPLY ITS OWN MIND OB JECTIVELY BY A SENIOR DESIGNATED AUTHORITY INVOLVING SUCH COMPLEX MATTERS AND GRANT APPROVAL AS CONTEMPLATED UNDER S.153D OF THE ACT IN A SPUR. THE APPROVAL GRANTED BY THE JCIT, IF ANY, ON THE SAME DATE AS NOTED IS T HUS ILLUSORY TANTAMOUNTING TO NO APPROVAL; RENDERING THE ENTIRE ASSESSMENT PROCESS VOID AND A NULLITY. THE APPROVAL OF THE JCIT NATUR ALLY WOULD ARISE AFTER THE LAPSE OF TIME COMPLIANCE ON 28.11.2016. ORDINA RILY, IT IS AFTER A LAPSE OF TIME OF COMPLIANCE, AN OFFICER WOULD BE EXPECTED TO DRAFT AN ASSESSMENT ORDER AND THEREAFTER WOULD SEND THE SAME TO THE OFFICE OF THE JCIT FOR ITS REVIEW AND APPROVAL TOGETHER WITH CASE RECORDS. THE READING OF CASE RECORDS AND APPROVAL OF THE DRAFT ORDER THE REON BY A SENIOR AUTHORITY WOULD NATURALLY TAKE SOME MINIMUM TIME HO WSOEVER EFFICIENT AND IN PROMPTU , THE WHOLE PROCESS MAY BE. EXPECTING AN OFFICER T O DRAFT AS MANY AS 28 ASSESSMENT ORDERS IN A SPAN OF FEW HO URS AND SEND IT TO THE JCIT AND, IN TURN, OBTAIN APPROVAL THEREON IN TOTO IS IMPLAUSIBLE, IF THE DATE OF ORDER ON 28.11.2016 IS TO BE BELIEVED AS SA CROSANCT. IT WAS THUS CONTENDED THAT THE DATE OF ASSESSMENT ORDER IS ANT EDATED AS THE CIRCUMSTANCES CLEARLY SUGGESTS. 10.4 CONTINUING FURTHER, THE LEARNED COUNSEL CONTEN DED THAT APPROVAL OF THE JCIT ON THE SAME DAY WITHIN A SPAN OF FEW HOURS /MINUTES CLEARLY UNDERLINE TOTAL NON-APPLICABILITY OF MIND AND A MEC HANICAL STEP BY THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 10 - SENIOR AUTHORITY IN ABDICATION OF ITS STATUTORY RES PONSIBILITIES, EVEN IF, THE DATE OF ORDER I.E. 28.11.2016 IS MOMENTARILY TAKEN AS SACROSANCT. THE LEARNED COUNSEL MADE A REFERENCE TO THE DECISION OF THE CO-ORDINATE BENCH IN GEETARANI PANDA VS. ACIT IT(SS)A NO. 01/CTK/2017 ORDER DATED 05.07.2018; RISHAV BUILDWELL PVT. LTD. & ORS. VS. DCIT ITA NO.2122/DEL/2010 ORDER DATED 04 TH JULY, 2019; AAA PAPER MARKETING PVT. LTD. VS. DCIT ITA NO. 167/LKW/2016 DATED 28.04.2017 AND INDRA BANSAL & ORS. VS. ACIT ITA NOS. 514-516/JODH/2015 FOR THE UNEQUIVOCAL PROPOSITION THAT THE APPROVAL GIVEN BY THE JOINT CO MMISSIONER IN AN UTMOST HASTY MANNER AND IN A MECHANICAL MANNER DOES NOT TANTAMOUNT TO APPROVAL CONTEMPLATED UNDER S.153D OF THE ACT. THE LEARNED COUNSEL ACCORDINGLY SUBMITTED THAT THE ASSESSMENT ORDERS PA SSED UNDER S.153A OF THE ACT WITH REFERENCE TO THE CAPTIONED APPEALS GRO SSLY SUFFER FROM LACK OF STATUTORY APPROVAL ENVISAGED UNDER S.153D OF THE ACT AND THEREFORE ORDERS OF ASSESSMENT ARE CLEARLY BAD IN LAW AND THU S UNSUSTAINABLE IN LAW. 10.5 TO PROP UP ITS CONTENTION THAT THE ASSESSMENT ORDER AS WELL AS APPROVAL OF THE JCIT THEREON ARE ANTEDATED AND WITH OUT PREJUDICE AND IN THE ALTERNATIVE, THE APPROVAL OF THE JCIT IS WITHOU T APPLICATION OF MIND, THE LEARNED COUNSEL ONCE AGAIN ADVERTED TO THE ASSE SSMENT ORDER UNDER S.153A R.W.S. 143(3) OF THE ACT DATED 28.11.2016 AP PEALED AGAINST. THE LEARNED COUNSEL MADE REFERENCE TO THE ASSERTIONS MA DE BY THE AO IN PARA 5.4 OF THE ASSESSMENT ORDER WHICH IS READ IN VERBATIM AS FOLLOWS: 5.4 FROM THE P&L ACCOUNT, FOLLOWING EXPENSES ARE D ISALLOWED KEEPING IN VIEW THE INFORMATION CONTAINED IN THE TEP AND SH OW CAUSE IN THIS CONTEXT ISSUED TO THE ASSESSEE ON 21.11.2016 AND TH E ASSESSEES REPLY THERETO. [UNDERLINE IS OURS] THE LEARNED COUNSEL POINTED OUT THAT AS CAN BE SEEN FROM RECORDS PLACED, THE ASSESSEE ACTUALLY FILED REPLY ON 29.11.2016 AGA INST THE QUESTIONNAIRE OF AO DATED 21.11.2016 REFERRED HEREINABOVE. THUS, A QUESTION WOULD ARISE AS TO HOW COULD THE REPLY OF THE ASSESSEE BE CONSIDERED BY THE AO WHILE FRAMING THE DRAFT ASSESSMENT ORDER ON 28.11.2 016. BY NECESSARY IMPLICATION, THE ASSESSMENT ORDER WAS ACTUALLY DRAF TED AFTER 29.11.2016 IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 11 - AND IS ANTEDATED ON 28.11.2016. THE APPROVAL OF TH E JOINT COMMISSIONER ON SUCH ASSESSMENT ORDER (ON 28.11.2016) WITHOUT CO NSIDERATION OF REPLY OF THE ASSESSEE IS THEREFORE, ON THE OTHER HAND, IS EITHER MECHANICAL (IF REPLY NOT AVAILABLE) OR ANTEDATED (IF REPLY AVAILAB LE). IN EITHER SITUATION, THE ASSESSMENT ORDER IS NOT LEGALLY SUSTAINABLE. O N A QUERY FROM THE BENCH, THE LEARNED COUNSEL REFERRED TO THE COPY OF THE ORDER SHEET PREPARED IN THE COURSE OF THE ASSESSMENT AS APPEARI NG AT PAGE NO.174 TO 180 LISTING DATE-WISE EVENTS AND OCCURRENCES AND PO INTED OUT THAT NO REPLY COULD BE SEEN TO HAVE BEEN FILED BY THE ASSESSEE BE TWEEN THE DATE OF THE QUESTIONNAIRE I.E. 21.11.2016 AND THE DATE OF ORDER I.E. 28.11.2016. THUS, NO REPLY WAS FILED BY THE ASSESSEE IN THE INTERVENI NG PERIOD AS ASSERTED IN THE BAR. THE ONLY REPLY TO THE QUESTIONNAIRE WAS O N 29.11.2016 ON WHICH DATE, THE ASSESSMENT ORDER WAS SUPPOSEDLY ALREADY P ASSED. THUS, THE OBSERVATIONS OF THE AO THAT THE REPLY OF THE ASSESS EE IN RESPONSE TO QUESTIONNAIRE WAS CONSIDERED, ARE NOT IN SYNC WITH DATE OF THE ASSESSMENT. THE ASSESSMENT ORDER IS THUS CLEARLY ANTEDATED. TH E APPROVAL OF THE JCIT IS THUS ALSO ANTEDATED. TO PROVIDE ROOM FOR THE AF ORESAID CONTENTION, THE LEARNED COUNSEL FURTHER POINTED OUT THAT THE ASSESS MENT ORDER WAS SERVED ON THE ASSESSEE BY SPEED POST ON 14.12.2016 WHICH C LEARLY SHOWS THAT THE ASSESSMENT ORDER WAS DISPATCHED SOME TIME IN 2 ND WEEK OF DECEMBER. AN INEXPLICABLE DELAY OF ABOUT 10 DAYS IN DISPATCH OF THE ASSESSMENT ORDER SO HURRIEDLY FRAMED WITHIN A FEW HOURS (IN AS MANY AS 28 CASES) WITH APPROVAL OF JCIT ALSO ON SAME DAY AGAIN INDICATE TH AT ASSESSMENT ORDERS IN CAPTIONED APPEALS ARE ANTEDATED AND THUS SUCH AN TEDATED ASSESSMENT ORDERS ARE REQUIRED TO BE STUCK DOWN AS VOID AT THE THRESHOLD. 10.6 THE LEARNED COUNSEL FOR THE ASSESSEE NEXT POIN TED OUT THAT HE DOES NOT REQUIRE TO INDEPENDENTLY ARGUE GROUND NO.2 OF T HE ADDITIONAL GROUND WHICH IS MERELY AN EXTENSION OF THE FIRST ADDITIONA L GROUND. 10.7 ADVERTING TO MAIN GROUNDS OF APPEAL, THE LEARN ED COUNSEL FOR THE ASSESSEE RAISED YET ANOTHER LEGAL CONTENTION OF INV ALIDITY OF ADDITIONS/DISALLOWANCES IN THE ASSESSMENT PROCEEDIN GS UNDER S.153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERI AL FOUND IN THE COURSE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 12 - OF SEARCH UNDER S.132 OF THE ACT. IN THIS REGARD, THE LEARNED COUNSEL ADVERTED TO ITS IMMEDIATE RESPONSE BEFORE THE AO (A S RECORDED IN THE ASSESSMENT ORDER ITSELF AT PAGE NO.3 OF THE ASSESSM ENT ORDER ITSELF) TO SUBMIT THAT NO INCRIMINATING DOCUMENT WAS FOUND IN THE COURSE OF SEARCH FOR FOUR YEARS I.E. AYS. 2008-09 TO 2011-12 AS CLAI MED BEFORE AO AT THE VERY OUTSET. SIMILARLY, NO DOCUMENT RELATING TO AY S. 2012-13 TO 2015-16 WAS EITHER FOUND OR SEIZED. 10.7.1 THE LEARNED COUNSEL ALSO ADVERTED TO THE COP Y OF THE ORDER SHEET RECORDED BY THE AO (PLACED AT PAGE NOS. 174 T O 180 OF PAPER BOOK) AND SUBMITTED THAT THE AO HAS ALSO RECORDED THE CON TENTION OF THE ASSESSEE ON HEARING DATED 15.11.2016 THAT NO INCRIM INATING DOCUMENT WAS FOUND DURING THE SEARCH AND HENCE, ASSESSMENTS WHIC H STOOD COMPLETED/TIME BARRED PRIOR TO SEARCH COULD NOT BE DISTURBED UNDER S.153A OF THE ACT PROCEEDINGS. THE LEARNED COUNSEL FURTHER POINTED OUT THAT THE SOLE BASIS FOR SUBSTANTIAL ADDITIONS/DISAL LOWANCE IS A VAGUE AND NON-DESCRIPT ALLEGED TAX EVASION PETITION (TEP) REP ORT RECEIVED BY THE AO DATED 21.11.2016 IN THE COURSE OF ASSESSMENT PRO CEEDINGS UNDER S.153A OF THE ACT, WHICH CANNOT BE BRANDED AS INCRI MINATING MATERIAL FOUND IN THE COURSE OF SEARCH AGAINST THE ASSESSEE IN RESPECT OF UNABATED ASSESSMENTS. IT WAS CONTENDED THAT WITHOUT GOING I NTO ASPECTS OF MERITS OF WILD AND UNSUBSTANTIATED ALLEGATIONS IN TEP, THE AO WAS NOT ENTITLED TO REFER TO TEP FOR THE PURPOSES ADDITIONS/DISALLOWANC E IN RESPECT OF UNABATED AND ALREADY CONCLUDED ASSESSMENTS IN THE A SSESSMENT PROCEEDINGS IN TERMS OF SECTION 153A OF THE ACT IN CONTEMPLATION. 10.7.2 THE LEARNED COUNSEL THEREAFTER REFERRED TO T HE REMAND REPORT OBTAINED BY THE FIRST APPELLATE AUTHORITY FROM THE AO IN THE COURSE OF APPELLATE PROCEEDINGS BEFORE HIM AND SUBMITTED THAT CERTAIN SEIZED DOCUMENTS REFERRED TO IN THE REMAND REPORT HAS NO R ELEVANCE WITH THE ADDITIONS MADE AS WELL AS THE REFERENCE MADE IN THE SEIZED DOCUMENTS ARE CODED, UNINTELLIGIBLE, VAGUE AND NON-DESCRIPT. DELV ING DEEPER, THE LEARNED COUNSEL REFERRED TO THE COPY OF PANCHNAMA (PAGE N O.181 OF THE PAPER BOOK) AS WELL AS THE LIST OF INVENTORY OF DOCUMEN TS SEIZED ALONG WITH IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 13 - PAGES ON WHICH IDENTIFICATION MARKS WERE PLACED (PA GE NO.186 OF THE PAPER BOOK). THE LEARNED COUNSEL SUBMITTED THAT TH E IDENTIFICATION MARKS NOTED IN THESE DOCUMENTS ARE IN THE STYLE OF KDS-1 TO KDS-6. THE REMAND REPORT, ON THE OTHER HAND, MAINLY TALKS OF T EP RECEIVED BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS ON 21.11.20 16 WHEREIN INCRIMINATING NATURE OF INFORMATION HAS BEEN ALLEGE DLY RECEIVED BY THE AO. NEITHER THE ASSESSMENT ORDER NOR THE REMAND RE PORT MAKES ANY REFERENCE TO DOCUMENTS FOUND AS PER THE LIST OF IN VENTORY. IT WAS SUBMITTED THAT IN THE COURSE OF SEARCH, BUSINESS DO CUMENTS EXECUTED IN ORDINARY COURSE WILL BE NATURALLY FOUND BUT THAT WO ULD NOT MEAN THAT SUCH DOCUMENTS ARE INCRIMINATING IN NATURE PER SE . IN THE ABOVE FACTUAL SCENARIO, THE LEARNED COUNSEL SUBMITTED THAT AYS. 2 009-10, 2010-11, 2011-12 & 2012-13 (FOR BOTH THE APPELLANTS) STOOD C OMPLETED/TIME BARRED AT THE TIME OF INITIATION OF SEARCH ON 03.07.2014 A ND THUS COULD NOT BE DISTURBED BY MAKING FURTHER ADDITIONS/DISALLOWANCES DE HORS REFERENCE TO ANY INCRIMINATING MATERIAL FOUND OR SEIZED IN THE C OURSE OF SEARCH. 10.7.3 BUILDING UP THE CONTENTION ON LEGAL PRINCIPL ES, THE LEARNED COUNSEL SUBMITTED THAT ASSESSMENT OF INCOME UNDER S .143(3) R.W.S. 153A OF THE ACT MUST HAVE NEXUS TO THE INCRIMINATING MAT ERIAL, IF ANY, FOUND IN THE COURSE OF SEARCH IN RESPECT OF UNABATED ASSESSM ENT AS CONTINUOUSLY HELD BY VARIOUS HIGH COURTS AND APPROVED BY THE HON BLE SUPREME COURT (BY WAY OF DISMISSAL OF SLP). TO BUTTRESS THE LEGA L POSITION THAT PRESENCE OF INCRIMINATING MATERIAL DISCOVERED IN THE COURSE OF SEARCH AS A SINE QUA NON FOR ADDITIONS/DISALLOWANCES IN RESPECT OF UNABATED ASSESSMENT, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DE CISION RENDERED IN THE CASE OF KABUL CHAWLA (2016) 380 ITR 573 (DEL); PR.CIT VS. M EETA GUTGUTIA (2018) 96 TAXMANN.COM 468 (SC). IN THE BACKDROP OF FACTS NOTED ABOVE, THE LEARNED COUNSEL SUBMITTED THAT IN THE AB SENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARC H, THE ACTION OF THE AO TO MAKE ADDITIONS ARISING FROM BALANCE SHEET AND P& L ACCOUNT OF THE ASSESSEE ANNEXED TO A TEP IS A COMPLETE NON-STARTER . THE LEARNED COUNSEL SUBMITTED THAT THE ISSUE IS NO LONGER RES INTEGRA AND THERE ARE PLETHORA OF JUDICIAL PRECEDENTS TO CANVASS THE LEGAL POINT THAT WHERE NO INCRIMINATING IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 14 - MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN R ESPECT OF ASSESSMENT FOR RELEVANT AY WHICH ALREADY STOOD COMPLETED/TIME BARRED ON THE DATE OF SEARCH (AND IT DID NOT ABATE IN TERMS OF 2 ND PROVISO TO SECTION 153A OF THE ACT), NO ADDITION CAN BE MADE ON THE BASIS OF RE-AP PRECIATION OF REGULAR ACCOUNT OF THE ASSESSEE. IT WAS THUS ASSERTED THAT THE LEGAL POSITION IS CRYSTAL CLEAR. IN THE SAME VEIN, IT WAS SUBMITTED THAT DOCUMENTS FOUND OR ACQUIRED POST SEARCH IN THE COURSE OF ASSESSMENT CA NNOT BE USED AGAINST THE ASSESSEE WHILE FRAMING ASSESSMENT OF UNABATED A SSESSMENT ORDERS UNDER S.153A OF THE ACT. ON FACTS, THE LEARNED COU NSEL SUBMITTED THAT THE RETURN WAS EARLIER FILED PRIOR TO SEARCH AND THE AS SESSMENT PROCEEDINGS IN PURSUANT THEREOF IS DEEMED TO HAVE BEEN CONCLUDED O N EXPIRY OF TIME LIMIT AS PROVIDED FOR INITIATION OF ASSESSMENT PROCEEDING S. THE TIME LIMIT FOR ISSUANCE OF NOTICE UNDER S.143(2) OF THE ACT STOOD EXPIRED AT THE TIME OF SEARCH AND IN THE ABSENCE OF ANY PENDING ASSESSMENT AT THE TIME OF SEARCH, THE ASSESSMENT FOR AYS. 2009-10 TO 2012-13 (IN RESP ECT OF BOTH THE ASSESSEE HEREIN) PURSUANT TO THE ORIGINAL RETURN HA S ACHIEVED FINALITY. THE LEARNED COUNSEL ACCORDINGLY SUBMITTED THAT IN THE A BSENCE OF ANY REFERENCE TO ANY INCRIMINATING MATERIAL DISCOVERED IN THE COURSE OF SEARCH IN THE ASSESSMENT ORDER, ACTION OF THE AO/CIT(A) IN MAKING ADJUSTMENTS OF ROUTINE NATURE IN THE COURSE OF SEARCH ASSESSMEN T UNDER S.153A OF THE ACT IS IMPERMISSIBLE AND WITHOUT SANCTION OF LAW IN VIEW OF SEVERAL DECISIONS OF HONBLE HIGH COURT OF DIFFERENT JURISD ICTION INCLUDING KABUL CHAWLA (SUPRA); & PR.CIT VS. MEETA GUTGUTIA (SUPRA) . 10.7.4 THE LEARNED COUNSEL POINTED OUT THAT THE AO HAS INTER ALIA INVOKED SECTION 68 OF THE ACT FOR CERTAIN ADDITIONS . SECTION 68 OF THE ACT NECESSARILY ENJOINS PRESENCE OF ENTRIES IN THE BOOK S OF ACCOUNTS. SUCH ADDITIONS IN THE SPHERES OF SECTION 68 OF THE ACT I S NOT PERMISSIBLE IN THE ABSENCE OF EVIDENCE IN CONTRADICTING BONAFIDES OF C REDITS AS FOUND IN THE COURSE OF SEARCH. THE LEARNED COUNSEL CONTENTED T HAT THE ACTION OF THE REVENUE IN MAKING ADDITIONS UNDER S.68 OF THE ACT ( ON ACCOUNT OF SUNDRY CREDITORS/BOGUS LIABILITY) ON THE BASIS OF REGULAR BOOKS OF ACCOUNT, DISALLOWANCE OF VARIOUS EXPENDITURES, ADDITIONS TOW ARDS INVESTMENT IN FIXED ASSETS SHOWN IN THE BALANCE SHEET UNDER S.69 OF THE ACT (IN THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 15 - ALLEGED ABSENCE OF SATISFACTORY EXPLANATION TOWARDS NATURE AND SOURCE INVESTMENT) IS TOTALLY UNCALLED FOR AS PER THE SCHE MATIC INTERPRETATION OF SCHEME OF ASSESSMENT UNDER S.153A OF THE ACT. THE L EARNED COUNSEL FOR ASSESSEE THUS PROFESSED THAT THE AFORESAID ADDITION S/ADJUSTMENTS TO THE RETURN OF INCOME IS A SUBJECT MATTER OF REGULAR ASS ESSMENT UNDER NORMAL PROVISIONS AND SUCH ACTION UNDER SPECIFIED PROVISIO NS IN THE COURSE OF SEARCH ASSESSMENT IS BAD IN LAW AND THUS REQUIRES T O BE SET ASIDE AND QUASHED. 11. THE LEARNED CIT.DR, ON THE OTHER HAND, HEAVILY RELIED UPON THE ORDERS OF THE AO AND CIT(A) AS WELL AS WRITTEN SUBM ISSION DATED 25.10.2019 PLACED ON BEHALF OF THE AO IN THIS REGAR D. ANOTHER SUBMISSION DATED 05.11.2019 WAS ALSO RELIED UPON. THE LEARNED CIT.DR MAINLY CONVASSED THAT IN SEARCH CASES, THE ASSESSME NT ARE CONTINUOUSLY MONITORED BY THE SUPERIOR AUTHORITIES AND THUS, IMP LIEDLY, IT IS TO BE ASSUMED THAT JCIT WAS KEPT ABREAST OF ALL THE FACTS EMERGING IN THE COURSE OF THE ASSESSMENT ON AN ONGOING BASIS. THE AO ALSO FRAMES AND CONTINUALLY UPDATES THE DRAFT ASSESSMENT ORDER ON T HE BASIS OF ONGOING HAPPENINGS SUBJECT TO THE SUITABLE MODIFICATIONS ON THE BASIS OF REPLIES AND EVIDENCES COMING ON RECORD. THEREFORE, IT WILL BE MISCONCEIVED TO SAY THAT THE AO WAS NOT CAPABLE OF PREPARING THE DR AFT ORDERS OF 28 NUMBERS IN A SHORT SPAN AFTER THE LAPSE IN COMPLIAN CE OF TIME AND DATE OF HEARING. IN THE CIRCUMSTANCES, IT WAS CONTENDED THA T THERE IS NO STRENGTH IN THE PLEA OF THE ASSESSEE ON THE GROUNDS OF IMPLA USIBILITY OF AO AND JCIT AND THE ORDER/APPROVAL BEING ALLEGEDLY ANTEDAT ED. IT WAS FURTHER POINTED OUT THAT IT IS NOT UNCOMMON IN THE DEPARTME NT TO POST THE ORDER AFTER A GAP OF 10 TO 15 DAYS HAVING REGARD TO THE L OW KEY INFRASTRUCTURE AND LIMITED CAPACITY. IT WAS SUBMITTED THAT NO ADV ERSE INFERENCE SHOULD BE DRAWN AGAINST THE REVENUE FOR SUCH PURPORTED DEL INQUENCY, IF ANY. 12. THE LEARNED CIT-DR NEXT REFERRED TO THE SCHEME OF THE ASSESSMENT UNDER S.153A OF THE ACT AND SUBMITTED THAT ONCE A S EARCH HAS BEEN INITIATED UNDER S.132 OF THE ACT, WHAT IS REQUIRED TO BE ASSESSED IS TOTAL INCOME OF THE ASSESSEE. IT WAS FURTHER CONTENDED T HAT PRESENT SCHEME IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 16 - UNDER S.153A OF THE ACT IS IN DEPARTURE WITH THE OL D SCHEME OF BLOCK ASSESSMENT WHERE THE ADDITIONS/ADJUSTMENTS COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND IN THE COURS E OF SEARCH. NO SUCH LEGAL REQUIREMENT OF PRESENCE OF INCRIMINATING DOCU MENT PER SE COULD BE READ IN THE PRESENT SCHEME OF SEARCH ASSESSMENT IN OPERATION. THE LEARNED CIT-DR REFERRED TO THE JUDICIAL PRECEDENTS IN THE C ASE OF CANARA HOUSING DEVELOPMENT CO. VS. DCIT (2011) 49 TAXMANN.COM 98 ( KAR); FILATEX INDIA LTD. VS. CIT (2014) 49 TAXMANN.COM 465 (DEL.); CIT VS. RAJKUMAR ARORA (2014) 52 TAXMANN.COM 172 (ALL.) & PR.CIT (CENTRAL) VS. KESARVANI ZARDA BHANDAR, LUCKNOW ITA NO. 270 OF 2014 (ALL.) JUDGMENT DATED 06.09.2016 TO BUTTRESS THE AFORESAID CONTENTION ON BEHALF OF THE REVENUE. THE LEARNED CIT.DR ACCORDINGLY CONTENTED THAT NO ME RIT IN THE CLAIM OF THE ASSESSEE COULD BE DRAWN THAT ADDITIONS/DISALLOW ANCE IN UNABATED ASSESSMENTS ARE UNSUSTAINABLE IN THE ABSENCE OF INC RIMINATING MATERIAL. IT WAS THUS SUBMITTED THAT THE PRELIMINARY LEGAL GROUN DS RAISED ON BEHALF OF THE ASSESSEE ARE TOTALLY DEVOID OF ANY LEGITIMACY. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND LEGAL GROUNDS RAISED. BEFORE WE DEAL WITH ADDITIONS ON M ERITS, IT WILL BE DESIRABLE TO ADJUDICATE WIDE RANGING LEGAL OBJECTIO NS OF OVERWHELMING NATURE RAISED ON BEHALF OF THE ASSESSEE WHICH GOES TO THE ROOT OF THE MATTER. BROAD CONTOURS OF THE APPEAL OF THE ASSESS EE HINGES AROUND FOLLOWING PERTAINING LEGAL ISSUES EMANATING IN THE CASE: (I) WHETHER THE AO WAS JUSTIFIED IN PASSING THE ASSESSMENT ORDER HU RRIEDLY WITHOUT WAITING FOR EXPIRY OF AT LEAST THE DATE ON WHICH A COMPLIANCE TO THE QUESTIONNAIRE ISSUED WAS SOUGHT; (II) WHETHER THE P REPARATION OF DRAFT ASSESSMENT ORDERS OF AS MANY AS 28 CASES WAS PLAUSI BLE IN A SPAN OF FEW HOURS GIVEN THE COMPLEXITY INVOLVED IN SEARCH MATTE RS AND WHETHER THE APPROVAL OF 28 DRAFT ORDERS BY THE JOINT COMMISSION ER IS ALSO PLAUSIBLE IN A SPAN OF FEW HOURS ON THE SAME DAY; (III) WHETHER SUCH PURPORTED APPROVAL OF THE JOINT COMMISSIONER IS TO BE REGARDE D AS MECHANICAL AND PERFUNCTORY AND WITHOUT APPLICATION OF MIND HAVING REGARD TO THE FUNCTIONS ENTRUSTED UNDER S.153D OF THE ACT; (IV) W HETHER THE ASSESSMENT ORDER AND APPROVAL THEREON BY THE JCIT IS TO BE REG ARDED AS ANTEDATED AS IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 17 - ALLEGED IN VIEW OF THE CIRCUMSTANCES SHOWN TO BE EX ISTING ON BEHALF OF THE ASSESSEE; & (V) WHETHER WHILE MAKING ASSESSMENT UND ER S.153A OF THE ACT, THE REVENUE IS ENTITLED TO INTERFERE WITH ALRE ADY CONCLUDED (AND NOT ABATED) ASSESSMENT PASSED EITHER UNDER S.143(1) OR UNDER S.143(3) OF THE ACT AND NOT PENDING AT THE TIME OF SEARCH IN THE AB SENCE OF ANY INCRIMINATING DOCUMENTS UNEARTHED AS A RESULT OF SE ARCH OR NOT ? 14. FIRST FOUR LEGAL OBJECTIONS RAISES CONCERNS OVE R PROPRIETY OF THE ASSESSMENT ORDERS ITSELF ON THE GROUNDS OF ALLEGED PREDATING OF ASSESSMENT ORDERS IN TANDEM WITH TOKEN AND PERFUNCTORY APPROVA L OF THE DRAFT ASSESSMENT ORDERS BY SUPERIOR AUTHORITY WITHOUT FUL FILLMENT OF PRE- REQUISITES OF SECTION 153D OF THE ACT. THE FIRST A ND FOREMOST OBJECTION OF THE ASSESSEE THROUGHOUT IS THAT ASSESSMENT ORDERS W ERE NOT REALLY MADE ON 28.11.2016 WHEN IT WAS OSTENSIBLY MADE BUT IT WAS M ADE ON A LATER DATE. THE RESPECTIVE ASSESSMENT ORDERS WERE THUS CHALLENG ED AS VOID ON THE GROUND OF SUCH ORDERS BEING ANTEDATED. IT IS THE C ASE OF THE ASSESSEE THAT A QUESTIONNAIRE RAISING SUBSTANTIAL POINTS WAS ISSU ED TO THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS UNDER S.153A OF TH E ACT ON 21.11.2016 WHICH REQUIRED THE ASSESSEE TO MAKE COMPLIANCE THER EOF AT A VERY SHORT NOTICE ON 28.11.2016 AT 11:30 A.M. ON THIS DATE AN D TIME, THE ASSESSEE WAS DIRECTED TO FURNISH REPLIES ON VARIOUS POINTS. ADMITTEDLY, THE ASSESSEE COULD NOT TURN UP ON THIS DATE APPOINTED F OR 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 (APP OINTED DATE OF HEARING) AFTER TAKING NECESSARY APPROVAL OF JOINT COMMISSION ER UNDER S.153D OF THE ACT (INVOLVING 28 CASES INCLUDING 14 CAPTIONED APPEALS). IN THIS CONTEXT, IT IS THE CASE OF THE ASSESSEE THAT FIRSTL Y; THE AO OUGHT TO HAVE WAITED AT LEAST TILL THE CLOSURE OF THE DATE OF COM PLIANCE I.E. 28.11.2016 AND HE COULD HAVE PASSED ONLY AFTER THAT DATE; SECO NDLY, IT IS DIFFICULT TO FATHOM THAT THE AO WOULD BE ABLE TO PREPARE 28 DRAF T ORDERS IN A SPAN OF 2-3 HOURS INVOLVING COMPLEX ISSUES IN SEARCH MATTER S; AND THIRDLY, IT IS YET MORE DIFFICULT TO FATHOM THAT THE SUPERIOR AUTHORIT Y COULD PLAUSIBLY GO THROUGH THE ASSESSMENT RECORDS AND THE DRAFT ASSESS MENT ORDERS AND GRANT IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 18 - 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 SQUEEZ ED TIME AVAILABLE TO THE JCIT. IN SHORT, IT IS THE CASE OF THE ASSESSEE THA T THE TIME AVAILABLE AT THE DISPOSAL OF THE AO IS HARDLY 5-6 HOURS OF THE DAY A FTER THE LAPSE OF THE APPOINTED TIME ON THE DATE OF HEARING. IN THIS VER Y SHORT PERIOD, APART FROM ALL OTHER ROUTINE WORK CARRIED OUT, THE AO HAS PURPORTEDLY DRAFTED 28 ASSESSMENT ORDERS AND FORWARDED THE SAME TO THE JCI T (SUPERIOR AUTHORITY) TOGETHER WITH CASE RECORDS AND THE JCIT, IN TURN, H AS PERUSED SUCH VOLUMINOUS CASE RECORDS AND GRANTED APPROVAL CONTEM PLATED 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 MAGNITUD E (WITHOUT WAITING FOR ANY TIME FOR COMPLIANCE OF A VERY SHORT NOTICE) AND APPROVAL THEREON BY THE SUPERIOR AUTHORITY IN A SPUR OF MOMENT IS TOTAL LY BEYOND ANY COMPREHENSION AND DOES NOT ACCORD WITH NORMAL COND UCT OF A RESPONSIBLE STATUTORY FUNCTIONARY. THE PRESENCE OF ANY COUNTER VAILING CIRCUMSTANCES FOR PASSING ORDERS WITHOUT PROVIDING MINIMUM OPPORT UNITY 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 WHIL E CONDUCTING THE WHOLE AFFAIRS. 14.2 PERTINENT HERE TO SAY, THE PROCEEDINGS BEFORE AO ARE QUASI-JUDICIAL PROCEEDINGS AND ALL THE INCIDENTS OF SUCH PROCEEDIN GS WAS EXPECTED TO BE OBSERVED WITHOUT LAXITY BEFORE THE RESULT OF THE PR OCEEDINGS WERE DETERMINED. THE REVENUE OFFICERS MUST REALIZE THAT STATUTORY DUTIES CONFERRED ON THEM ARE IN THE NATURE OF A TRUST. TH EY 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 F OR THE APPROVAL OF SUPERIOR AUTHORITY IN FEW HOURS EVEN IF SOME ONGOIN G DRAFT WORKS WERE ASSUMED TO BE AVAILABLE IN THIS REGARD. A NATURAL QUESTION WOULD ARISE AS IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 19 - TO WHAT WAS THE HURRY FOR DOING SO? WHEN SEEN IN C ONJUNCTION, IT IS YET MORE DIFFICULT TO PERCEIVE THAT ANY SUPERIOR AUTHOR ITY, EXPECTED TO KEEP A STRICT VIGIL ON THE ACTIONS OF AO UNDER S.153D OF T HE ACT, CAN POSSIBLY GRANT APPROVAL TO SUCH LONGISH AND HIGH STAKED MATT ERS OF AS MANY AS 28 CASES IN VIRTUALLY 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 COLO SSAL ABNORMALITY IN CONDUCT OF THE AUTHORITIES CONCERNED. 14.3 NEEDLESS TO SAY, PROVISION OF SECTION 153D OF THE ACT CASTS ONEROUS RESPONSIBILITY ON THE SUPERIOR AUTHORITY TO LOOK IN TO THE DRAFT ASSESSMENT FRAMED BY THE SUBORDINATE OFFICER WITH SOME DEGREE OF OBJECTIVITY. APPARENTLY, THE WHOLE EXERCISE OF THE AO IN CLAIMIN G TO HAVE PREPARED ASSESSMENT ORDERS IN AS MANY AS 28 CASES WITHIN A S HORT 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 PALATA BLE. AS ALSO OBSERVED EARLIER, THE AO HAS PREPARED THE DRAFT ASSESSMENT O RDER WITHOUT EVEN WAITING FOR COMPLETION OF THAT DATE OF HEARING IS G ROSS SUB-VERSION OF THE QUASI-JUDICIAL PROCESS AND SUCH IPSE-DIXIT CONDUCT DESERVES TO BE DEPRECATED. THE SUPERIOR AUTHORITY PERFORMING THE S OLEMN DUTY TO SUPERVISE THE ACTION OF THE AO CLAIMED TO HAVE APPR OVED SUCH LARGE STAKED SEARCH MATTER IN A SPUR OF MOMENT DOES NOT I NSPIRE ANY CONFIDENCE IN SUCH HAWKISH SUPERVISORY PROCESS. WHEN SEQUENCE OF EVENTS ARE INTEGRATED AND COLLATED, THE PLEA OF THE ASSESSEE T HAT THE WHOLE EXERCISE OF THE AFORESAID REVENUE AUTHORITIES ARE ANTEDATED CAN NOT BE REFUTED TO BE WITHOUT ANY SUBSTANCE. THE STAND OF THE ASSESSEE T HAT THE ASSESSMENT ORDER IN ALL PROBABILITY IS ANTEDATED TO AVOID CONS IDERATION 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 R EPLY OF THE ASSESSEE IN RESPONSE TO THE QUESTIONNAIRE DATED 21.11.2016 AS P ER 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 TO Q UESTIONNAIRE WAS FILED ON 29.11.2016. IF THE REPLY HAS BEEN CONSIDERED AS AS SERTED BY THE AO THEN A IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 20 - 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 ANTEDATED; & (II) THE ASSESSMENT ORDER HAS BEEN SENT BY SPEED POST ON 14.12.2016 WHICH CLEARLY SHOWS THAT THE ASSESSME NT ORDERS WHICH WERE PASSED WITH LIGHTNING SPEED BUT WAS LANGUISHING THE REAFTER AND DISPATCHED AFTER ABOUT TWO WEEKS FROM THE DATE OF PASSING THE ORDER. 14.4 THE ALLEGATION OF ASSESSEE IS THUS BASED ON NU MBER OF FACTS ESTABLISHED BY EVIDENCE AND CIRCUMSTANCES. HENCE, WHETHER THE ALLEGATION MADE IS SOUND OR NOT MUST BE DETERMINED BY ATTACHIN G WEIGHT TO ALL FACTS CUMULATIVELY AND BY APPLYING THE TEST OF PREPONDERA NCE OF PROBABILITIES. THE ASSESSEE IS NOT EXPECTED TO PROVE ITS CASE OF A NTEDATING THE ORDER WITH MATHEMATICAL PRECISION WHERE IT IS OTHERWISE EVIDEN T TO A DEMONSTRABLE DEGREE. ALL THAT IS REQUIRED IN SUCH CASES IS THE E STABLISHMENT 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 MA Y INCLINE TO TAKE. THE CONDUCT, WHEN SEEN IN TOTALITY, IS UNPRECEDENTE D AND CASTS INFALLIBLE IMPRESSION THAT THE ASSESSMENT ORDERS GIVING RISE T O 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 T HE THRESHOLD IN SUCH SORDID CIRCUMSTANCES. 14.5 IT WOULD HOWEVER BE ALSO PERTINENT TO DELINEAT E WHETHER THE SO- CALLED APPROVAL OF JCIT UNDER S.153D OF THE ACT MEE TS LEGAL REQUIREMENT OR NOT. AS REPEATEDLY OBSERVED ABOVE, THE JCIT PUR PORTEDLY CARRIED OUT THE EXERCISE OF GRANTING APPROVAL IN A BAFFLING HAS TE. THE ORDER SHEETS RECORDED BY THE AO SHOWS THAT WHAT WAS SENT TO THE JCIT WERE ONLY DRAFT ASSESSMENT ORDERS SEEKING APPROVAL THEREON. NO REFE RENCE TO THE ASSESSMENT RECORDS ALSO BEING SENT TOGETHER WITH TH E DRAFT ASSESSMENT ORDERS IS FOUND IN THE ORDER SHEET. COMMUNICATION/ APPROVAL LETTER FROM JCIT IS NOT PLACED BEFORE US BY EITHER SIDE TO EXAM INE THIS ASPECT. CONSIDERING THESE FACTS, THE JCIT HAS PRESUMABLY GI VEN APPROVAL WHILE REMAINING OBLIVIOUS OF THE ASSESSMENT RECORDS. NOT WITHSTANDING IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 21 - AFORESAID, THE JCIT WAS EXPECTED TO ENQUIRE INTO RE PLY OF THE ASSESSEE IN RESPONSE TO THE QUESTIONNAIRE DATED 21.11.2016 WHIC H WAS CRUCIAL AND OF UTMOST SIGNIFICANCE IN THE CONTEXT OF THE ALLEGATIO NS MADE BY AO. JCIT HOWEVER HAS SUMMARILY ENDORSED THE ACTION OF THE AO PRESUMING NO SUBSTANCE IN REPLIES ALLEGEDLY FILED WITHOUT LOOKIN G AT IT NOR HE COULD HAVE SEEN SUCH NON-EXISTENT REPLY ON 28.11.2016. A PPARENTLY, THE APPROVAL GRANTED BY THE JCIT, IF ANY, SUFFERS FROM INHERENT LACK OF APPLICATION OF MIND ON THE DRAFT ASSESSMENT ORDER A ND CONSIDERATION OF RELEVANT ASSESSMENT RECORDS. THE PURPORTED APPROVA L SO GRANTED BY THE JCIT HAS BEEN CLEARLY REDUCED TO AN EMPTY RITUAL RE NDERING SUCH APPROVAL TO BE INVALID IN THE EYES OF LAW. WE ALSO CANNOT L OOSE SIGHT OF THE FACT THAT NO MINIMAL ENQUIRY INTO THE ISSUES OF SUBSTANT IAL NATURE ARISING FROM THE DRAFT ASSESSMENT ORDERS HAVE BEEN MADE BY THE J CIT 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 INCLUD ING PR.CIT VS. SHREELEKHA DAMANI (2019) 307 ITR 218 (BOM), GEETARA NI PANDA (SUPRA), RISHABHBHAI BUILDWELL P. LTD. (SUPRA), AAA PAPER MA RKETING 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 1 53D OF THE ACT. SUCH SYMBOLIC APPROVAL IS UNFOUNDED IN LAW. AS A COROLL ARY, IN THE ABSENCE OF ANY VALID APPROVAL UNDER S.153D OF THE ACT, THE RES PECTIVE ASSESSMENT ORDERS GIVING CAUSE OF ACTION IN THE FORM OF CAPTIO NED APPEALS REQUIRES TO BE QUASHED ON THIS SCORE ALSO. 15. WE SHALL NOW VENTURE TO DELINEATE ON YET ANOTHE R LEGAL OBJECTION OF ASSESSEE TOWARDS PROPOSITION (V) CARVED OUT IN PARA 13 ABOVE. AS PER THE AFORESAID PROPOSITION, THE CONTROVERSY THAT ARISES FOR ADJUDICATION IS ON THE SCOPE AND AMBIT OF ASSESSMENT PROCEEDINGS IN SE ARCH CASES UNDER S.153A OF THE ACT. SECTION 153A OF THE ACT PROVIDES FOR THE PROCEDURE FOR COMPLETION OF ASSESSMENT WHERE A SEARCH IS INITIATE D UNDER S.132 OF THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 22 - ACT OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER S.132A OF THE ACT. THE CASE PR OPOUNDED ON BEHALF OF THE ASSESSEE IS THAT ADDITIONS/DISALLOWANCES MADE I N SECTION 153A OF THE ACT PROCEEDINGS HAS NO RATIONAL CONNECTION WITH INC RIMINATING MATERIAL, IF ANY, DISCOVERED AS A RESULT OF SEARCH AND IN THE AB SENCE OF ANY SPEAKING MATERIAL AGAINST THE ASSESSEE FOUND AS A RESULT OF SEARCH, THE AO IS ESTOPPED FROM EXERCISING UNFETTERED POWERS IN THE M ATTER OF UNABATED AND ALREADY CONCLUDED ASSESSMENTS. IT IS FURTHER CASE OF THE ASSESSEE THAT THE ASSESSMENT ORDER ALSO DOES NOT MAKE ANY REFERENCE T O ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH WHILE MAKING ADDITIONS/DISALLOWANCES. THE ADDITIONS/DISALLOWANCE S WERE MADE BY TAKING COGNIZANCE OF SOME TEP RECEIVED IN THE COURS E OF THE ASSESSMENT PROCEEDINGS UNDER S.153A OF THE ACT WHICH MAINLY RE FERS TO THE FINANCIAL STATEMENT OF THE ASSESSEE. NOTICEABLY, ONE OF THE MAJOR ADDITIONS HAVE BEEN MADE UNDER S.68 OF THE ACT WHICH IS NOT PERMIS SIBLE UNLESS THE ENTRIES ARE FOUND TO BE CREDITED IN THE BOOKS MAINT AINED BY THE ASSESSEE. ONCE THE ENTRIES ARE FOUND TO BE ENTERED IN THE BOO KS OF ASSESSEE, THE ADDITION UNDER S.68 OF THE ACT COULD NOT BE MADE IN UNABATED ASSESSMENTS IN THE ABSENCE OF ANY CONTRADICTIONS EMERGING FROM INCRIMINATING DOCUMENTS UNEARTHED IN THE COURSE OF SEARCH. NO SUC H REFERENCE HAS BEEN MADE IN THE ASSESSMENT ORDER. THE ADDITIONS UNDER S.68 OF THE ACT HAS BEEN MADE ON THE BASIS OF CREDITS APPEARING IN FINA NCIAL STATEMENT ANNEXED TO TEP ONLY WHICH PETITION WAS RECEIVED AT A MUCH LATER STAGE IN THE COURSE OF ASSESSMENT POST SEARCH. IT WAS POINT ED OUT THAT A REFERENCE WAS, HOWEVER, MADE TO CERTAIN DOCUMENTS IN THE REM AND PROCEEDINGS BEFORE THE CIT(A) AT BELATED STAGE. THE AO IS NOT ENTITLED TO MAKE RADICAL CHANGES IN BASIS OF ASSESSMENT IN THE REMAN D PROCEEDINGS AT BELATED STAGE. WITHOUT PREJUDICE, A REFERENCE WAS MADE TO THE INCRIMINATING DOCUMENTS CMB-24 IN THE REMAND REPO RT IS ADMITTEDLY SEIZED FROM THE POSSESSION OF OTHER SEARCHED PERSON NAMELY CORE MINERALS AT BARBIL. SEIZED DOCUMENTS MARKED AS A K-01 WAS ADMITTEDLY SEIZED FROM PADAM KUMAR JAIN. DOCUMENT MARKED (C MB-1) WAS SEIZED FROM CORE MINERALS. DOCUMENTS BEARING IDENTIFICA TION MARK UKD-1 WAS ALSO SEIZED FROM THIRD PARTY WHICH IS UNKNOWN A ND NO REFERENCE TO IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 23 - SUCH DOCUMENTS ARE FOUND IN THE LIST OF INVENTORIE S PREPARED AT THE TIME OF SEARCH. NO REFERENCE OF SUCH DOCUMENTS IS ALSO FOUND IN THE STATEMENT RECORDED UNDER S.132(4) OF THE ACT. IT WAS CONTEND ED THAT ALLEGED INCRIMINATING NATURE OF INFORMATION AGAINST THE ASS ESSEE AS CONTENTED IN TEP DATED 21.11.2016 WAS OBTAINED POST SEARCH AT A VERY BELATED STAGE AFTER TIME LIMIT FOR ASSESSMENT IN RELATION TO AYS. 2009-10, 2010-11, 2011-12 & 2012-13 STOOD EXPIRED AND THUS REMAINED U NABATED AND ACHIEVED FINALITY. IT WAS HOWEVER FAIRLY CONCEDED THAT ASSESSMENTS FOR AYS. 2013-14; 2014-15 & 2015-16 WERE PENDING ASSESS MENT AT THE TIME OF SEARCH AND THEREFORE NORMAL ASSESSMENTS UNDER S.153 A R.W.S. 143(3) OF THE ACT WOULD BE POSSIBLE IN ACCORDANCE WITH LAW SUBJEC T HOWEVER TO THE FINDINGS ON PLEA TOWARDS ALL ASSESSMENT ORDERS BEIN G ANTEDATED ARE BAD IN LAW AND NON-EST . 15.1 IT IS FURTHER CASE OF THE ASSESSEE THAT REFERE NCE MADE TO THE ALLEGED SEIZED DOCUMENTS IN THE COURSE OF THE REMAND HAS NO RELEVANCE WITH THAT OF ADDITIONS MADE AND SUCH REFERENCE BY THE AO ARE VERY UNINTELLIGIBLE AND VAGUE NEVERTHELESS. THE DOCUMENTS SEIZED FROM THIRD PARTY WERE STATED TO BE WITHOUT ANY CO-RELATION WITH THE ADDIT ION AND WERE NEVER CONFRONTED TO THE ASSESSEE. IT WAS FURTHER POINTED OUT THAT ASSESSMENT ON THE BASIS OF DOCUMENTS SEIZED FROM THIRD PARTIES IS DICTATED BY DIFFERENT PROVISION I.E. SECTION 153C OF THE ACT. 15.2 ON PERUSAL OF THE CASE RECORDS, WE FIND MERIT IN THE LEGAL PROPOSITION CANVASSED ON BEHALF OF THE ASSESSEE. I T IS NOT IN DISPUTE THAT THE ASSESSMENT PERTAINING TO ASSESSMENT YEARS IN QU ESTION VIZ. AYS. 2009- 10, 2010-11, 2011-12 & 2012-13 STOOD CONCLUDED EITH ER UNDER S.143(1) OR UNDER S.143(3) OF THE ACT AND NOT EVENTUALLY PENDIN G AT THE TIME OF SEARCH. THUS, ASSESSMENT FOR THESE 4 YEARS WILL NO T GET ABATED IN CONSEQUENCE OF SEARCH. IN THE BACKDROP OF THESE PER TINENT FACTS, WE STRAIGHTWAY NOTICE THAT THE SCOPE OF ASSESSMENT UND ER S.153A OF THE ACT IN RESPECT OF CONCLUDED AND UNABATED ASSESSMENTS IS CIRCUMSCRIBED BY THE CONDITION THAT ADDITIONS/ DISALLOWANCES MUST HAVE S OME RATIONAL IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 24 - CONNECTION WITH THE INCRIMINATING MATERIAL AGAINST THE ASSESSEE DETECTED IN THE COURSE OF SEARCH. 15.3 THE SCOPE OF ASSESSMENT UNDER S.153A OF THE AC T IN RESPECT OF CONCLUDED AND UNABATED ASSESSMENT IS THUS NARROWER IN ITS SWEEP AS HELD IN LONG LINE OF JUDICIAL PRECEDENTS OF DIFFERENT JU RISDICTIONS. 15.3.1 WE SHALL FIRST REFER TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. MEETA GUTGUTIA (2017) 395 ITR 526 (DEL). THE HONBLE DELHI HIGH COURT REFERRED TO THE JUDGME NT IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL); PR.CIT V S. SAUMYA CONSTRUCTIONS PVT. LTD. (2016) 387 ITR 529 (GUJ); P RINCIPAL COMMISSIONER OF INCOME TAX-1 VS. DEVANGI ALIAS RUPA 2017-TIOL-319- HC-AHM-IT; CIT VS. IBC KNOWLEDGE PARK PVT. LTD. (20 16) 385 ITR 346 (KAR); PR. CIT-2 VS. SALASAR STOCK BROKING LTD. 201 6-TIOL-2099-HC- KOL-IT AND CIT VS. GURINDER SINGH BAWA (2016) 386 I TR 483 (BOM), REFERENCE WAS ALSO MADE TO ANOTHER TWO DECISIONS OF HONBLE DELHI COURT IN PR. CIT VS. MAHESH KUMAR GUPTA 2016-TIOL-2994-HC-D EL AND THE DECISION DATED 7 TH FEBRUARY, 2017 IN ITA NOS. 61/2017 AND 62/2017 IN THE PR, COMMISSIONER OF INCOME TAX-9 VS. RAM AVTAR VERMA WHERE THE DECISION IN KABUL CHAWLA (SUPRA) WAS FOLLOWED. THE HONBLE DELHI HIGH COURT MADE AN EXHAUSTIVE REFERENCE TO THE DECISIONS NOTED ABOVE AND HELD THAT INVOCATION OF SECTION 153A OF THE ACT TO REOPE N CONCLUDED ASSESSMENTS OF EARLIER ASSESSMENT YEARS WAS NOT PER MISSIBLE IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING SEAR CH QUA EACH SUCH EARLIER ASSESSMENT YEARS. WHILE HOLDING SO, THE HO NBLE DELHI HIGH COURT ALSO DISTINGUISHED THE CO-ORDINATE BENCH DECISION O F THE SAME COURT IN THE CASE OF SMT. DAYAWANTI GUPTA VS. CIT (2016) 390 ITR 496 (DE LHI). IT WAS NOTED THAT IN DAYAWANTI GUPTA (SUPRA), A CHART PREPARED INDICATED THAT THERE HAD BEEN A YEAR-WISE NON-RECORDING OF TRANSAC TIONS. THE INFERENCES DRAWN IN RESPECT OF UNDISCLOSED INCOME WERE PREMISE D ON THE MATERIAL FOUND AND STATEMENT RECORDED THEREON. AS STATED, T HERE IS NO SUCH STATEMENT IN THE PRESENT CASE WHICH COULD BE SAID T O CONSTITUTE ADMISSION IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 25 - BY ASSESSEE ON FAILURE TO RECORD ANY TRANSACTION IN ACCOUNTS OF THE ASSESSEE FOR ASSESSMENT YEARS IN QUESTION. EVENTUA LLY, THE HONBLE DELHI HIGH COURT IN MEETA GUTGUTIA (SUPRA) HELD THAT ADDITIONS BASED ON APPRECIATION OF FACTS DE HORS INCRIMINATING MATERIAL ARE NOT SUSTAINABLE IN LAW. THE SLP OF THE REVENUE AGAINST THE AFORESAID DECISION OF THE HONBLE DELHI HIGH COURT WAS DISMISSED BY THE HONB LE SUPREME COURT IN PR.CIT VS. MEETA GUTGUTIA (2018) 96 TAXMANN.COM 468 (SC). CONTEXTUALLY, WE ALSO OBSERVE THAT THE HONBLE SUPR EME COURT HAS STAYED THE OPERATION OF JUDGMENT OF HONBLE DELHI HIGH COU RT IN DAYAWANTI GUPTA (SUPRA) VIDE ORDER DATED 3 RD OCTOBER, 2017 IN SLP PETITION NO.20559/2017. 15.3.2 SIMILAR VIEW THAT NO ADDITIONS COULD BE MADE ON THE BASIS OF MATERIAL COLLECTED AFTER SEARCH AND IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE FOUND OR SEIZED DURING SEARCH HAS BEEN END ORSED BY THE HONBLE GUJARAT HIGH COURT IN PR.CIT VS. SUNRISE FINLEASE (P.) LTD. (2018) 89 TAXMANN.COM 1 (GUJ.). 15.3.3 THE HONBLE GUJARAT HIGH COURT IN PR.CIT VS. SAUMYA CONSTRUCTIONS PVT. LTD. (2016) 387 ITR 529 (GUJ) ALSO DECLINED TO AGREE WITH THE PLEA ON BEHALF OF THE REVENUE THAT THE NEW PROCEDURE PROVIDED UNDER S.153A OF THE ACT IS DIFFERENT FROM EARLIER P ROCEDURE PROVIDED UNDER S.158BC R.W.S. 158BB OF THE ACT AND CONSEQUEN TLY, THE PLEA OF THE REVENUE THAT THERE IS NO CONDITION IN SECTION 153A OF THE ACT THAT ADDITIONS SHOULD BE MADE STRICTLY ON THE BASIS OF E VIDENCE FOUND DURING THE COURSE OF SEARCH WAS NOT APPROVED. THE HONBLE GUJARAT HIGH COURT ANALYZED THE POSITION OF LAW AND TOOK NOTE OF SEVER AL JUDICIAL PRECEDENTS AND CONCLUDED THAT COMPLETED ASSESSMENTS CAN BE INT ERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER S.153A OF THE ACT ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURI NG THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS ETC. THE HONBL E GUJARAT HIGH COURT NOTED THAT THE TRIGGER POINT FOR EXERCISE OF POWERS UNDER S.153A OF THE ACT IS A SEARCH UNDER S.132 OF THE ACT OR A REQUISI TION UNDER S.132A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, THE MAN DATE IS CAST UPON THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 26 - AO TO ISSUE NOTICE UNDER S.153A OF THE ACT AND COMP LETE THE ASSESSMENT OF 6 ASSESSMENT YEARS. THE HONBLE GUJARAT HIGH CO URT TOOK NOTE OF THE FACT THAT OBJECT OF SCHEME LEGISLATED FOR ASSESSMEN T IN SEARCH CASES IS TO BRING TO TAX THE UNDISCLOSED INCOME WHICH IS FOUND DURING THE COURSE OF OR PURSUANT TO SEARCH OR REQUISITION AND THEREFORE ADDITIONS/DISALLOWANCES MUST BE LINKED WITH SEARCH/REQUISITION. IT WAS NOT ED BY THE HONBLE COURT THAT ADDITIONS MADE ON THE BASIS OF SOME MATERIALS COLLECTED BY THE AO MUCH SUBSEQUENT TO THE SEARCH IS NOT PERMISSIBLE. 15.3.4 SIMILAR VIEW HAS BEEN EXPRESSED IN CATENA OF DECISIONS VIZ; PR.CIT VS. DEEPAK J. PANCHAL (GUJ) 397 ITR 153 (GUJ ); CHETNABEN J. SHAH VS. ITO TAX APPEAL NO. 1437 OF 2007 JUDGMENT DATED 14.07.2016; CIT VS. CONTINENTAL WAREHOUSING CORPORATION (2015) 374 ITR 645 (BOM.); PR.CIT VS. DESAI CONSTRUCTION PVT. LTD. 387 ITR 552 (GUJ.); GURINDER SINGH BABA 386 ITR 483 (BOM); & CIT VS. DE EPAK KUMAR AGARWAL (2017) 398 ITR 586 (BOM.). 15.3.5 THE HONBLE DELHI HIGH COURT IN PR.CIT VS. SUBHASH KHATTAR ITA NO. 60/2017 JUDGMENT DATED 25.07.2017 ALSO HELD AGAINST THE REVENUE IN SIMILAR CIRCUMSTANCES WHERE SEARCH DID N OT RESULT IN DISCOVERY OF ANY INCRIMINATING MATERIAL QUA ASSESSEE. IT WAS OBSERVED BY THE HONBLE DELHI HIGH COURT THAT ENTIRE CASE AGAINST T HE ASSESSEE WAS BASED ON WHAT WAS FOUND DURING THE SEARCH OF THE PREMISES OF OTHER PARTIES AND THUS, IT IS APPARENT ON THE FACE OF IT THAT NOTICE TO ASSESSEE UNDER S.153A OF THE ACT WAS MISCONCEIVED SINCE THE SO-CALLED INC RIMINATING MATERIAL WAS NOT FOUND DURING THE SEARCH OF ASSESSEES PREMI SES. 15.3.6 ON THE CONSPECTUS OF AFORESAID JUDGMENTS OF DIFFERENT COURTS, THE POSITION OF LAW IS LOUD AND CLEAR THAT ADDITION S/DISALLOWANCES UNDER S.153A OF THE ACT TOWARDS UNABATED ASSESSMENTS ARE PERMISSIBLE ONLY WHERE INCRIMINATING MATERIALS ARE FOUND IN SEARCH S HOWING UNACCOUNTED INCOME. 15.4 HOWEVER, AT THIS JUNCTURE, WE SIMULTANEOUSLY T AKE NOTE OF VARIOUS DECISIONS REFERRED TO AND RELIED UPON ON BEHALF OF THE REVENUE FOR THE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 27 - PROPOSITION THAT PRESENCE OF INCRIMINATING MATERIAL DISCOVERED DURING THE COURSE OF SEARCH IS NOT A CONDITION PRECEDENT FOR M AKING ADDITIONS/DISALLOWANCES UNDER S.153A OF THE ACT. W E DO NOT CONSIDER IT NECESSARY TO RE-VISIT THE JUDGMENTS CITED. THE OBJ ECTIONS RAISED ON BEHALF OF THE REVENUE HAS BEEN DEALT WITH IN THE JUDICIAL PRECEDENTS QUOTED IN FAVOUR OF THE ASSESSEE. THE DECISION CITED IN THE CASE OF CANARA HOUSING DEVELOPMENT CO.(SUPRA) AS WELL AS FILATEX INDIA LTD. (SUPRA) HAS BEEN TAKEN NOTE OF BY THE HONBLE GUJARAT HIGH COURT IN SAUMYA CONSTRUCTIONS PVT. LTD. (SUPRA) WHILE ADJUDICATING THE ISSUE IN FAVOUR OF THE ASSESSEE. FILATEX INDIA LTD. (SUPRA) WAS ALSO CONSIDERED IN MEETA GUTGUTIA (SUPRA). THE DECISION RENDERED BY THE HONBLE ALLAHABAD HIGH COURT IN CIT VS. RAJKUMAR ARORA (2014) 52 TAXMANN.COM 172 (A LL.) IS RENDERED WITHOUT TAKING NOTE OF THE JUDICIAL VIE W EXPRESSED BY OTHER HIGH COURTS PREVAILING AT THE RELEVANT TIME. THE D ECISION RENDERED IN PR.CIT (CENTRAL) VS. KESARVANI ZARDA BHANDAR, LUCKN OW ITA NO. 270 OF 2014 (ALL.) IS ONLY REITERATION OF THE DECISION OF HONBLE ALL AHABAD HIGH COURT IN CASE OF RAJKUMAR ARORA (SUPRA). 15.5 IN SUMMATION, IN THE LIGHT OF THE AFORESAID OV ERWHELMING LEGAL PRECEDENTS AS LAID DOWN BY THE HONBLE BOMBAY HIGH COURT, DELHI HIGH COURT & GUJARAT HIGH COURT AS ALSO VARIOUS BENCHES OF TRIBUNAL, THE CORRECT LEGAL POSITION IN RESPECT OF THE ASSESSMENT S UNDER S.153A OF THE ACT MAY BE SUMMARIZED AS FOLLOWS: (I) THE SCOPE OF ASSESSMENT UNDER S.153A OF THE ACT IS LIMITED TO THE INCRIMINATING E VIDENCE FOUND DURING THE SEARCH AND NO FURTHER IN SO FAR AS UNABATED ASS ESSMENTS ARE CONCERNED; & (II) UNLESS THERE IS INCRIMINATING MATERIAL QUA EACH ASSESSMENT YEARS TO WHICH ADDITIONS ARE SOUGHT TO BE MADE IN RESPECT OF CONCLUDED ASSESSMENTS, THE ASSESSMENT UNDER S.153A OF THE ACT BY MAKING ADDITIONS/DISALLOWANCES WOULD BE VITIATED IN LAW. 15.6 AS DISCUSSED IN LENGTH, THE ISSUE HAS BEEN DYN AMIC AND A MATTER OF LEGAL INTERPRETATION. WE ARE GOVERNED BY THE SCHEM ATIC INTERPRETATION GIVEN TO PROVISIONS OF SECTION 153A OF THE ACT BY D IFFERENT HONBLE COURTS. IN THE LIGHT OF JUDICIAL FIAT READING DOWN THE SCOPE AND IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 28 - SPECTRUM OF ASSESSMENT UNDER S.153A OF THE ACT IN N ARROWER COMPASS, THE POSITION OF LAW IS EXPLICITLY CLEAR. IN THE ABSENC E OF ANY CONNECTION WITH THE INCRIMINATING MATERIAL UNEARTHED IN SEARCH PROC EEDINGS OF ASSESSEE, ADDITIONS / DISALLOWANCES IN RESPECT OF CONCLUDED A SSESSMENT I.E. AYS. 2009-10 TO 2012-13 IN INSTANT APPEALS, ARE NOT PERM ISSIBLE IN LAW. THE ADDITIONS WERE MADE BY THE AO SOLELY ON THE BASIS O F SOME TEP RECEIVED IN NOVEMBER 2016 AS AGAINST SEARCH CONDUCTED IN JUL Y 2014. THE ASSESSMENT FOR AY 2009-10 TO 2012-13 WERE STOOD CON CLUDED ON THE DATE OF SEARCH. THUS, SUCH ALLEGED INCRIMINATING INFORM ATION, IF ANY, UNCONNECTED TO THE SEARCH WOULD NOT RENDER THE ADDI TIONS UNDER S.153A OF THE ACT AS VALID IN SO FAR AS CONCLUDED ASSESSMENTS ARE CONCERNED. THE BURDEN OF PROOF TOWARDS EXISTENCE OF UNDISCLOSED IN COME DISCOVERED AS A RESULT OF SEARCH IS ON THE REVENUE. NO EVIDENCE IS STATED TO HAVE BEEN FOUND AT SEARCH OF ASSESSEE TO SUGGEST EXISTENCE OF UNDISCLOSED INCOME AS PERCEIVED BY THE AO. THE REVENUE HAS FAILED TO REB UT THE FACTUAL ASSERTIONS MADE ON BEHALF OF THE ASSESSEE TOWARDS N ON-DISCOVERY OF INCRIMINATING MATERIAL AT THE TIME OF DRASTIC ACTIO N OF SEARCH ON ASSESSEE AND REFERENCE THERETO IN ASSESSMENT ORDER. VAGUE R EFERENCE MADE TO VARIOUS SEIZED MATERIAL IN THE COURSE OF REMAND PRO CEEDINGS ARE ALSO FOUND TO BE UNCONNECTED TO THE SEARCH ON THE ASSESS EE. THERE IS NOTHING ON RECORD THAT INFORMATION CONTAINED IN SEIZED DOCU MENTS AS PER LIST OF INVENTORY WERE NOT RECORDED OR REFLECTED IN THE BOO KS OF ACCOUNTS FOUND DURING SEARCH. THE SEIZED DOCUMENTS REFERRED TO IN THE REMAND PROCEEDINGS AT A LATER STAGE POST SEARCH ARE ADMITT EDLY FOUND TO BE FROM THE POSSESSION OF THIRD PARTIES PARALLELY SEARCHED. BE IT AS IT MAY, IN THE ABSENCE OF ANY REFERENCE TO SUCH SEIZED DOCUMENTS I N THE ASSESSMENT ORDER AND IN VIEW OF THE OVERWHELMING REFERENCE TO UNSUBSTANTIATED TAX EVASION PETITION OBTAINED IN NOVEMBER 2016 POST SEA RCH, THE ACTION OF THE AO TOWARDS MAKING ADDITIONS IN RESPECT OF CONCLUDED ASSESSMENTS TOWARDS UNDISCLOSED INCOME IS CONTRARY TO THE JUDIC IAL DICTA. ACCORDINGLY, WE ARE OF THE VIEW THAT VARIOUS ADDITIONS/DISALLOWA NCES MADE BY THE AO ARE CLEARLY BEYOND THE SCOPE OF AUTHORITY VESTED UN DER S.153A OF THE ACT OWING TO ABSENCE OF ANY INCRIMINATING MATERIAL OR E VIDENCE DEDUCED AS A RESULT OF SEARCH IN SO FAR AS COMPLETED ASSESSMENTS ARE CONCERNED. AS IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 29 - NOTED, NO REFERENCE OF SUCH INCRIMINATING MATERIAL, IF ANY, IS FOUND IN ANY OF THE ASSESSMENT ORDERS FOR THE PURPOSES OF MAKING VARIOUS ADDITIONS/DISALLOWANCES. ADDITIONS/DISALLOWANCES M ADE IN ASSESSMENTS FRAMED UNDER S.153A OF THE ACT IN RESPECT OF CAPTIO NED ASSESSEES PERTAINING TO AYS. 2009-10 TO 2012-13 ARE THUS REQU IRED TO BE QUASHED ON THIS SCORE TOO. THE ASSESSMENTS/RE-ASSESSMENTS PEN DING ON THE DATE OF SEARCH I.E. AY 2013-14 TO 2015-16 WHICH STOOD ABATE D BY OPERATION OF LAW WILL HOWEVER BE GOVERNED BY NORMAL ASSESSMENT P OWERS UNDER S.153A OF THE ACT. 16. WE SHALL NOW ADVERT TO THE CORRECTNESS OF VARIO US ADDITIONS MADE IN AYS. 2013-14 TO 2015-16 ON MERITS. 16.1 NOTWITHSTANDING THE VIEW EXPRESSED IN PARA 14 (SUPRA) THAT THE ASSESSMENT ORDER IS PREDATED AND THEREFORE NO MAINT AINABLE COUPLED WITH THE OBSERVATIONS THAT THE ASSESSMENT ORDERS ARE NOT MAINTAINABLE ALSO ON THE GROUND THAT THE APPROVAL OF THE JCIT IS MECHANI CAL AND PERFUNCTORY AND FURTHER OBSERVATIONS IN PARA 15 (SUPRA) THAT TH E ADDITIONS/DISALLOWANCES MADE IN EACH UNABATED ASSES SMENTS FOR AY 2009- 10 TO 2012-13 ARE ALSO NOT MAINTAINABLE OTHERWISE D UE TO FAILURE OF THE REVENUE TO DISCHARGE ITS BURDEN TOWARDS PRESENCE OF INCRIMINATING MATERIAL AS RESULT OF SEARCH ON ASSESSEE, WE ARE HO WEVER ALSO INCLINED TO DEAL WITH THE ADDITIONS ON MERITS FOR THE SAKE OF C OMPLETENESS. THIS IS SO HAVING REGARD TO STAKES INVOLVED WHERE THERE IS REA SONABLE POSSIBILITY OF PRESENT ORDER OF ITAT BEING PLACED BEFORE HONBLE H IGH COURT FOR ITS JUDICIAL REVIEW. WE HOWEVER MAKE IT ABUNDANTLY CLEA R THAT ALL THE ASSESSMENT ORDERS IN THE CAPTIONED APPEALS ARE LIAB LE TO BE QUASHED FOR DIVERSE AND INDEPENDENT REASONS CITED ABOVE. 16.2 ONE OF THE ISSUES ON MERITS RELATES TO APPLICA TION OF SECTION 2(22)(E) OF THE ACT IN RESPECT OF RECEIPT OF LOANS AND ADVANCES BY THE ASSESSEE FROM K. D. S. CONTRACTORS P. LTD. IN WHICH BOTH THE DIRECTORS OF THE ASSESSEE COMPANY VIZ; TRIPTA SHARMA & K. D. SH ARMA HOLDS SUBSTANTIAL INTEREST IN BOTH THE COMPANIES. THE AO HAS HELD THE AMOUNT IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 30 - OF LOANS / ADVANCES RECEIVED FROM K. D. S. CONTRACT ORS P. LTD. BY ASSESSEE (RAJAT MINERALS) AS DEEMED INCOME OF THE ASSESSEE B Y APPLYING SECTION 2(22)(E) OF THE ACT. THE ASSESSEE CLAIMED THAT THE AMOUNTS WERE RECEIVED PURSUANT TO COMMERCIAL TRANSACTION AND THUS COULD N OT BE ASSESSED AS DEEMED DIVIDEND UNDER S.2(22)(E) OF THE ACT. IT WA S FURTHER ARGUED ON BEHALF OF THE ASSESSEE (RAJAT MINERALS) THAT THE AS SESSEE BEING A REGISTERED SHAREHOLDERS OF LENDER COMPANY, THE PROV ISIONS OF SECTION 2(22)(E) OF THE ACT HAS NO APPLICATION IN VIEW OF T HE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANKITECH PRIVATE LTD. (2012) 340 ITR 14 (DEL.). THE LEGAL PROPOSITION IN ANKITECH P. LTD. (SUPRA) HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. MADHUR HOUSING AND DEVELOPMENT COMPANY IN CIVIL APPEAL NO. 3961 OF 2013 & ORS. JUDGMENT DATED 05.10.2017. 16.3 IT WAS ALSO PLEADED IN THE ALTERNATIVE AND WIT HOUT PREJUDICE TO OTHER SUBMISSIONS IN THIS REGARD THAT ONCE A LOAN PAID BY THE LENDER COMPANY HAS BEEN TREATED AS DEEMED DIVIDEND IN THE MANNER S ET OUT IN SECTION 2(22)(E) OF THE ACT, IT IS TO BE TREATED AS A PAYME NT OUT OF ACCUMULATED PROFITS OF THE COMPANY. THUS, AS A LOGICAL CONCLUS ION, THE DISALLOWANCES MADE IN THE EARLIER YEARS IS REQUIRED TO BE ADJUSTE D AGAINST THE LENDER COMPANIES ACCUMULATED PROFITS TO THE EXTENT IT HAS BEEN TREATED AS DEEMED DIVIDEND WHILE INCLUDING ACCUMULATED PROFITS OF THE COMPANY. 16.4 WE FIND MERIT IN DEFENCE RAISED BY THE ASSESSE E OF LEGAL NATURE I.E. RECIPIENT ASSESSEE NOT BEING A REGISTERED SHAREHOLD ER CANNOT BE TAXED UNDER THE DEEMING FICTION OF SECTION 2(22)(E) OF TH E ACT. HAVING REGARD TO THE DECISION OF HONBLE GUJARAT HIGH COURT IN TH E CASE OF CIT VS. DAISY PACKERS PVT. LTD. 220 TAXMAN 331 (GUJ.); CIT VS. AN KITECH PRIVATE LTD. (2012) 340 ITR 14 (DEL.) AND CIT VS. MADHUR HOUSING AND DEVELOPMENT COMPANY IN CIVIL APPEAL NO. 3961 OF 2013 & ORS. JUDGMENT DATED 05.10.2017, THE ADDITIONS UNDER THE DEEMING FICTION OF SECTION 2(22)(E) OF THE ACT REQUIRES TO BE DELETED ON THIS FIRST PARAME TER ITSELF I.E. THE ASSESSEE NOT BEING SHAREHOLDERS OF THE LENDER COMPA NY CANNOT BE TAXED UNDER S. 2(22)(E) OF THE ACT. IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 31 - 16.5 WE ALSO OBSERVE HERE THAT THERE IS A CONSIDERA BLE FORCE IN THE ALTERNATIVE ARGUMENT RAISED ON BEHALF OF THE ASSESS EE THAT WHILE CONSIDERING ACCUMULATED PROFITS OF THE COMPANY FOR THE PURPOSES OF ADDITIONS UNDER S.2(22)(E) OF THE ACT FOR THE ASSES SMENT YEARS IN QUESTION, THE PAYMENT MADE BY THE LENDER COMPANY WHICH STOOD DISALLOWED IN THE EARLIER YEARS IS REQUIRED TO BE ADJUSTED AND CONSEQ UENTLY, ACCUMULATED PROFITS OF THE LENDER COMPANY WOULD STAND REDUCED T O THE EXTENT OF DISALLOWANCES CARRIED OUT BY THE AO IN THE EARLIER ASSESSMENT YEARS. WHEN A LOAN BY A COMPANY TO A SHAREHOLDER IN THE MANNER SET OUT IN SECTION 2(22)(E) IS TREATED AS A DEEMED DIVIDEND, IT IS TO BE TREATED AS PAYMENT OUT OF ACCUMULATED PROFITS OF THE COMPANY. ANY LEGAL F ICTION WILL HAVE TO BE CARRIED TO ITS LOGICAL CONCLUSION. IF THE PAYMENT UNDER SECTION 2(22)(E) IS TREATED AS A DEEMED DIVIDEND AND IS REQUIRED TO BE SO TREATED TO THE EXTENT THE COMPANY POSSESSES ACCUMULATED PROFITS, THE LOGI CAL CONCLUSION IS THAT THIS PAYMENT MUST BE CONSIDERED AS ADJUSTED AGAINST THE COMPANYS ACCUMULATED PROFITS TO THE EXTENT IT IS TREATED AS DEEMED DIVIDEND WHILE CALCULATING ACCUMULATED PROFITS OF THE COMPANY. WH ENEVER ACCUMULATED PROFITS OF THE COMPANY ARE REQUIRED TO BE DETERMINE D, SUCH AN ADJUSTMENT WILL HAVE TO BE MADE. THIS VIEW WAS EXPRESSED BY TH E HONBLE SUPREME COURT IN THE CASE OF CIT VS. G. NARASIMHAN (1999) 102 TAXMAN 66 (SC). HENCE, THE ADDITION UNDER S.2(22)(E) OF THE ACT FOR A GIVEN ASSESSMENT YEAR IS REQUIRED TO BE MADE HAVING REGARD TO THE AD JUSTED ACCUMULATED PROFITS AVAILABLE WITH THE LENDER COMPANY. THE ISS UE IS DECIDED ON FIRST PRINCIPLES AND WE DO NOT INTEND TO EXPAND THE SCOPE OF DELIBERATION ON THIS ALTERNATIVE ARGUMENTS IN VIEW OF OUR OBSERVATI ONS IN PARA 16.4 ABOVE. 16.6 OTHER ADDITIONS/DISALLOWANCES ON MERITS ARE FA CTUAL IN NATURE WHERE ONLY TEP HAS BEEN RELIED UPON. THE DEFENSE OF THE ASSESSEE ON FACTUAL ASPECTS REQUIRES TO BE CONSIDERED. WE FIND THAT TH E SINGULAR OPPORTUNITY OF 5-6 DAYS GIVEN TO THE ASSESSEE FOR COMPLIANCE WA S GROSSLY INADEQUATE AND THE ADDITIONS/DISALLOWANCES MADE IN VIEW OF SUC H INADEQUACY IS BAD IN LAW. THE REFERENCE MAY BE MADE TO THE DECISION OF SONA BILDERS VS. UOI 251 ITR 197 (SC) IN THIS REGARD. THUS, ALL ADDITIONS/DISALLOWANCES OTHER THAN ADDITION UNDER S. 2(22)(E) OF THE ACT AR E LIABLE TO BE SET ASIDE IT(SS)A NO. 41 TO 54/RAN/19 [M/S. RAJAT MINERALS & M/S. K. D. S. CONTRACTORS PVT. LTD.] - 32 - AND REMITTED BACK TO THE FILE OF THE AO WHEN EXAMIN ED ON THE TOUCH STONE OF FACTUAL MATRIX. HENCE, THE ADDITIONS WHEN TESTE D ON MERITS WILL BE GOVERNED BY THESE OBSERVATIONS. WE HOWEVER ONCE AG AIN REITERATE THAT OUR OBSERVATIONS ON MERITS WILL NOT COME INTO PLAY AS T HE ASSESSMENT ORDERS ITSELF ARE FOUND TO BE DEVOID OF LEGITIMACY AND BAD IN LAW AS DISCUSSED IN GREAT LENGTH THE EARLIER PARAGRAPHS. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT (SS)A NO. 41/RAN/2019 IS ALLOWED. 18. AS POINTED OUT IN CHORUS BY BOTH SIDES, THE ISS UES INVOLVED IN ALL OTHER CAPTIONED APPEALS ARE IDENTICAL. IN PARITY, THE OBSERVATIONS AND FINDINGS MADE IN IT(SS)A NO. 41/RAN/2019 (SUPRA) SHALL APPLY MUTATIS MUTANDIS TO COMMON ISSUES IN ALL CASES. CONSEQUENTLY, ALL OTHER CAPTIONED APPEALS ARE ALSO ALLOWED IN THE SAME PATT ERN. 19. IN THE COMBINED RESULT, ALL THE APPEALS FILED B Y BOTH THE ASSESSEES ARE ALLOWED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 / DR, ITAT, RANCHI 9. 5:; < / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020