The Dy. CIT, Central Circle-2(4), Ahemdabad V. India Retail Products Pvt. Ltd., Ahmedabad

ITSSA 453/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8475 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 13-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A KHAN
• Keywords: Unexplained cash credit; Gift; Depreciation; Search and seizure; Set aside
• Section: 143(3); 153A; 40(a)(ia); 143(1); 143(2); 40a(ia); 32; 68; 132; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER (SS) ./IT(SS)A NO.453/AHD/2017 ( /ASSESSMENT YEAR : 2011-12) DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2(4) AHMEDABAD / VS. INDIA RETAIL PRODUCT PVT.LTD. 308, ISCON MALL ABOVE STAR BAZAR JODHPUR CROSS ROAD SATELLITE AHMEDABAD ./ ./PAN/GIR NO. : AABCJ 9511 L ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.S.A KHAN, CIT-DR / RESPONDENT BY: NONE / DATE OF HEARING 08/01/2020 V / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)13, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-1 3/AHD/121/2016-17 DATED 29/09/2017 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3)/144 R.W.S.153 OF THE INCOME TAX ACT, 1961( HEREINAFTER REFERRED TO AS 'THE ACT') DATED 17/02/2015 RELEVANT TO ASSESSME NT YEAR (AY) 2011-12. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 2 - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPR ECIATING THE PROVISIONS OF SECTION 153A OF THE I.T. ACT WHICH RE QUIRES THE TOTAL INCOME TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICT ION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SUCH ASSESSMENT OR RE-ASSESSMENT U/S 153A IS TO BE RESTR ICTED ONLY TO THE INCRIMINATING MATERIALS FOUND DURING THE SEARCH. ' 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE ADDITION OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT OF RS.1,4 7,27,400/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DISALLOWANCE OF 1/3 OF EXPENDITURE AS BOGUS AMOUNTING TO RS.21,58,9 95/-. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE ADDITION OF SUPPRESSION OF CLOSING STOCK OF RS.4,59,049/-. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT OF RS.2,61,000/-. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DISALLOWANCE OF DEPRECIATION U/S 32 OF RS.68,244/-. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 9. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. AT THE OUTSET, WE NOTE THAT THE APPEAL FILED BY THE REVENUE IN THE YEAR 2017 HAS BEEN LISTED SEVERAL TIMES FOR HEARING, BUT THE ASSESSEE REMAINED ABSENT. THEREFORE, WE DECIDED TO PROCEED FOR HEARIN G EX-PARTE QUA THE ASSESSEE. IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 3 - 2. FIRST, WE TAKE UP THE GROUND NO. 2 OF THE APPE AL RAISED BY THE REVENUE, CHALLENGING THE ORDER OF THE LD. CIT(A) WHEREIN IT WAS HELD THAT THE ADDITIONS IN THE ASSESSMENT OR RE-ASSESSMENT FRAMED U/S 153A WAS TO BE RESTRICTED TO THE INCRIMINATING MATERIALS FOUND DURING SEARCH. 3. THE BRIEF FACTS APPEARING, IN THIS CASE, ARE T HAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED U/S 132 OF THE ACT IN I NDIA GREEN REALITY GROUP OF CASES ON 15.03.2013 WHICH ALSO INCLUDES THE PREM ISE OF ASSESSEE. ACCORDINGLY THE CASE OF THE ASSESSEE WAS ALSO COVER ED UNDER SEARCH ASSESSMENT U/S 153A OF THE ACT. THE ASSESSMENT WAS FRAMED U/S 153A/143(3) OF THE ACT AFTER MAKING THE FOLLOWING A DDITIONS/DISALLOWANCES OF THE REGULAR ITEM OF THE BUSINESS AS DETAILED UNDER : S.NO PARTICULARS AMOUNT 1. UNEXPLAINED CASH CREDIT U/S 68 1,47,17,400/- 2. AUDIT FEES U/S 40A(IA) 2,61,000/- 3. OTHER EXPENSES (1/3) 21,58,955/- 4. DEPRECIATION 68,244/- 5. CLOSING STOCK 4,59,049/- 3.1. HOWEVER, THE LD. CIT-A ON APPEAL BY THE ASSES SEE HELD THAT THERE WAS NO INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH WITH RESPECT TO THE ADDITIONS MADE BY THE AO. ACCORDINGLY, THE LD. CIT- A DELETED THE ADDITION MADE BY THE AO. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 5. THE LD. DR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AO. IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 4 - 6. WE HAVE HEARD THE LD. DR AND PERUSED THE MATER IALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION UNDER SECTION 139 OF THE ACT DA TED 29-09-2011. THE TIME LIMIT FOR THE ISSUANCE OF THE NOTICE U/S 143(2) OF THE ACT, FOR THE SCRUTINY ASSESSMENT WAS UP TO 30-06-2012 BUT NO SUCH NOTICE WAS ISSUED TO THE ASSESSEE. THUS ON THE DATE OF SEARCH I.E 15-03-2013 THE ASSESSMENT YEAR UNDER CONSIDERATION BECAME UNABATED. THE 1 ST ISSUE ARISES FOR OUR CONSIDERATION WHETHER THE ASSESSMENT IN DISPUTE CAN BE CONSIDERED AS UNABATED IN THE GIVEN FACTS AND CIRCUMSTANCES. THE ANSWER STANDS IN FAVOR OF THE ASSESSEE. IT IS BECAUSE THE TIME PERMITTED UNDE R THE STATUTE FOR SELECTING THE CASE UNDER SCRUTINY WAS UP TO 30 SEPTEMBER 2012 BUT THERE WAS NO NOTICE ISSUED FOR THE SCRUTINY ASSESSMENT. IN THIS REGARD WE FIND SUPPORT AND GUIDANCE FROM THE ORDER OF KOLKATA TRIBUNAL IN THE CASE OF KRISHNA KUMAR SINGHANIA VS. DCIT REPORTED IN 88 TAXMANN.COM 259 W HEREIN IT WAS HELD AS UNDER: HENCE NOW THE ONLY ISSUE WHICH IS LEFT TO BE ADDRE SSED IS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED UNDER SECTION 153A IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON THE DATE OF SEARCH. IT WAS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2009-10 WAS NOT SELECTED FOR SCRUTINY AND THE TIME LIMIT FOR ISSUAN CE OF NOTICE UNDER SECTION 143(2) HAD EXPIRED AND HENCE IT FALSE UNDER CONCLUD ED PROCEEDING, AS ON THE DATE OF SEARCH. IT IS HELD THAT THE LEGISLATURE DOE S NOT DIFFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED UNDER SECTIO N 143(1) OR 143(3) OR 147. HENCE UNLESS THERE WAS NO ANY INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH RELATABLE TO CONCLUDED YEAR 2009-1 0, THE STATUTE DOES NOT CONFER ANY POWER ON THE ASSESSING OFFICER TO DISTUR B THE FINDINGS GIVEN THEREON AND INCOME DETERMINED THEREON, AS FINALITY HAD ALREADY BEEN REACHED THEREON, AND SUCH PROCEEDING WAS NOT PENDIN G ON THE DATE OF SEARCH TO GET ITSELF ABATED. [PARA 10.1 IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 5 - 6.1. WE ALSO FIND SUPPORT AND GUIDANCE FROM THE O RDER OF THE HONBLE ITAT AHMEDABAD IN CASE OF VIJAY KUMAR D AGARWAL VS. DCIT REPORTED IN 82 TAXMANN.COM 367 WHEREIN IT WAS HELD AS UNDER: 20. IN THE PRESENT CASE, THE ASSESSMENT HAD BEEN C OMPLETED UNDER SUMMARY SCHEME UNDER SECTION 143(1) AND TIME LIMIT FOR ISSUE OF NOTICE UNDER SECTION 143(2) HAD EXPIRED ON THE DATE OF SEARCH. THEREFORE, THER E WAS NO ASSESSMENT PENDING IN THIS CASE AND IN SUCH A CASE THERE WAS NO QUESTION OF ABATEMENT. THEREFORE, ADDITION COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING IT(SS)A NOS. 153 TO 156/AHD/2012 & OTHERS A.YS. 2003-04 TO 2006-07 SEARCH. THE GIFT DE EDS AND THE COPIES OF RETURN OF INCOME OF THE DONORS THAT WERE FOUND AT T HE TIME OF SEARCH COULD NOT BE CONSIDERED TO BE INCRIMINATING MATERIAL FOR THE PURPOSE OF ADDITION IN VIEW OF THE FACT THAT THESE VERY DOCUMENTS WERE THE BASIS OF THE GIFTS THAT WERE CONSIDERED BY THE ASSESSEE WHILE CREDITING THE CAPITAL ACCOUNT. 21. IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE V IEW THAT THESE ASSESSMENTS FRAMED U/S.153A NEED TO BE QUASHED. ORDERED ACCORDI NGLY. SINCE THE LEGAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, W E ARE OF THE VIEW THAT THE OTHER GROUNDS RAISED ON THE MERITS OF ADDITION HAVE BEEN RENDERED ACADEMIC AND REQUIRES NO ADJUDICATION. 22. THUS, THE APPEAL OF THE ASSESSEE IT(SS)A NO.153 /AHD/2012 FOR THE ASSESSMENT YEAR 2003-04 IS ALLOWED. 6.2. IN VIEW OF THE ABOVE, WE ARE INCLINED TO HOL D THAT THE YEAR UNDER CONSIDERATION BEFORE US IS AN UNABATED YEAR. 7. THE 2 ND CONTROVERSY ARISE, WHETHER ASSESSMENT COULD BE FRA MED U/S 153A OF THE ACT IN RESPECT OF CONCLUDED PROCEEDING WITHO UT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDIN GS AS ON DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE YEAR UNDER CONSIDERAT ION HAS FALLS UNDER THE AMBIT OF UNABATED ASSESSMENT AS ON THE DATE OF SEARCH. TH ERE IS NO DIFFERENTIATION AS FOUND IN THE INTENT OF THE LEGISLATURE TO DIFFER ENTIATE WHETHER THE IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 6 - ASSESSMENTS WERE ORIGINALLY FRAMED U/S 143(1) OR 14 3(3) OR 147 OF THE ACT. THEREFORE, IF ANY INCRIMINATING MATERIAL IS NOT FOU ND DURING THE COURSE OF SEARCH RELATED TO THOSE CONCLUDED YEARS, THE ACT DO ES NOT CONFER ANY POWER ON THE LD. AO TO DISTURB THE FINDING GIVEN THEREON AND INCOME DETERMINED THEREON AS FINALITY HAS ALREADY BEEN REACHED AND NO PROCEEDINGS WERE PENDING ON THE DATE OF SEARCH. 8. WE FIND THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT CENTRAL- III VS. KABUL CHAWLA REPORTED IN 380 ITR 573 (DEL) HAS DECIDED THE IMPUGNED ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEV ANT EXTRACT OF THE ORDER READS AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, REA D WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UN DER: I . ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATE LY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES P LACE. II . ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCO ME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III . THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX Y EARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSE D 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 A O WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE AS SESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 7 - BASIS OF SEIZED MATERIAL.' V . IN ABSENC E OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSE SSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE . THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABAT ED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI . INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY F OR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL E XISTING OR BROUGHT ON THE RECORD OF THE AO. VII . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DI SCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 8.1. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL G UJARAT HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SAUMY A CONSTRUCTION PVT. LTD. REPORTED IN 387 ITR 529 HAS DECIDED THE ISSUE IN FAVOR OF THE ASSESSEE BY OBSERVING AS UNDER: 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS WELL SETTLED AS HELD BY THE SUP REME COURT IN A CATENA OF DECISIONS THAT THE HEADING OF THE SECTION CAN BE RE GARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECT ION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLE AR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEAD ING OF SECTION 153, THE INTENTION OF THE LEGISLATURE IS CLEAR VIZ., TO PROV IDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF TH E PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOE S WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR RE QUISITION. IN OTHER WORDS, THE ASSESSMENT SHOULD BE CONNECTED WITH SOMETHING F OUND DURING THE SEARCH OR REQUISITION, VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED INCOME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION ( 1) OF SECTION 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUI SITION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON T O FURNISH RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 8 - IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION OR DISALLOWANCE CAN BE MADE ONLY ON THE BASIS OF MATER IAL COLLECTED DURING THE SEARCH OR REQUISITION. IN CASE NO INCRIMINATING MAT ERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL ( INDIA) (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. IN CASE WHE RE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSM ENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE A SSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FUR NISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURIN G THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT U NDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AN D AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESS ING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDE R SECTION 153A OF THE ACT. 8.2. IN RESPECT OF ABATED ASSESSMENTS, FRESH ASSESS MENTS ARE TO BE FRAMED BY THE AO U/S 153A OF THE ACT WHICH WOULD HAVE A BE ARING ON THE DETERMINATION OF THE TOTAL INCOME BY CONSIDERING AL L THE ASPECTS, WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DO NOT HAVE AN Y RELEVANCE. HOWEVER, IN RESPECT OF UNABATED ASSESSMENTS, THE LEGISLATURE HA S CONFERRED POWERS ON THE LD. AO TO FOLLOW THE ASSESSMENTS ALREADY CONCLU DED UNLESS INCRIMINATING MATERIALS ARE FOUND IN THE COURSE OF THE SEARCH. 8.3 THAT FOR THE REASONS STATED ABOVE AND ON THE B ASIS OF VARIOUS JUDICIAL PRONOUNCEMENTS, WE HOLD THAT THE DISALLOWANCES MADE FOR THE ASSESSMENT YEARS WHICH WERE UNABATED/CONCLUDED ASSESSMENTS AS ON DATE OF SEARCH CANNOT BE MADE IN THE SEARCH ASSESSMENTS IN THE ABS ENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARC H AND ACCORDINGLY DIRECTED TO AO TO DELETE THE ADDTION. 9. ACCORDINGLY, WE REFRAIN OURSELVES FROM GIVING F INDINGS ON THE OTHER GROUNDS RAISED BY THE REVENUE. THEREFORE, WE DISMIS S THE OTHER GROUNDS OF THE REVENUE RAISED ON MERIT. IT(SS)A NO.453/AHD/2017 CIT VS. INDIA RETAIL PRODUCTS PVT.LTD. ASST.YEAR - 2011 -12 - 9 - 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020 SD/- SD/- ( RAJPAL YADAV ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/01/2020 # . . , . $ . . / T.C. NAIR, SR. PS !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. %&' ( / CONCERNED CIT 4. ( ( ) / THE CIT(A)-13, AHMEDABAD 5. )*+ $$&' , &' , % / DR, ITAT, AHMEDABAD 6. +./ / GUARD FILE. / BY ORDER, ) $ //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 13.1.2020 ( WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DRA GON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.1.2020 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.21.1.2020 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.1.2020 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER