Dy. Commissioner of Income Tax, Central Cir.,2, , Surat V. Sitaram Prints Pvt. Ltd., Surat

ITSSA 49/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0576 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-08-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 01-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Bogus Share capital; Income from undisclosed sources; Search and seizure; Share purchase agreement; Question of law; Fair market value; Block assessment; Reason to believe; Reassessment proceedings; Set aside; CHAPTER XIVB
• Section: 147; 131; 68; 148; 37; 132; 143(3); 142(1); 153A; 13; 153; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./IT(SS)A No. 49/SRT/2021 Assessment Year: (2009-10) (Virtual Court Hearing) Deputy Commissioner of Income-tax, Central Circle-2, Surat Room No. 505, 5 th Floor, Aayakar Bhawan, Majura Gate, Surat-395001 Vs. Sitaram Prints Pvt. Ltd., 504, Trividh Chambers, Opp. Fire Station, Ring Road, Surat-395002 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAECS 2255 C (Appellant) (Respondent) Assessee by Shri Rasesh Shah, C.A Respondent by Shri H. P. Meena, CIT-DR Date of Hearing 17/08/2022 Date of Pronouncement 17/10/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the Revenue, pertaining Assessment Year (AY) 2009-10, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-4, Surat [in short “ld. CIT(A)”] in Appeal No. CIT(A), Surat-4/10116/2017-18 dated 06.05.2021 which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) r.w.s. 153A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) dated 16.10.2017. 2. The grounds of appeal raised by the Revenue are as follows: “1. On the facts and circumstances of the case and in Law, the Ld. CIT(A), has erred in deleting the addition of Rs.6,65,00,000/- made on account of unaccounted cash credit u/s 68 of the Income Tax Act without appreciating the fact that the assessee had failed to prove the identity, creditworthiness & genuineness of the Kolkata based investor companies from whom share capital were received. 2. On the facts and circumstances of the case and in Law, the Ld. CIT(A), has erred in deleting the addition of Rs.6,65,00,000/- made on account of unaccounted cash credit u/s 68 of the Income Tax Act without appreciating the fact that such accommodation entry in form of share Capital was arranged by the Page | 2 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. assessee from the Kolkata based entry providing companies, which was accepted by the directors of the entry providing companies before the Investigation Wing. 3. On the facts and circumstances of the case and in Law, the Ld. CIT(A), has erred in not appreciating the fact that incriminating data in the form of computer back-ups were found and seized during the course of search and the Assessing Officer has made a detailed analysis of the same and also correlated the same with the addition \s made in the assessment order. 4. On the facts and circumstances of the case and in Law, the Ld. CIT(A), has erred in holding that any addition made during the course of assessment proceedings u/s 153A has to be confined to the incriminating material found during the course of search u/s 132(1) of the Act, even though, there is no such stipulation in sec. 153A of the Act. 5. On the facts and circumstances of the case and in law, the Ld. CIT(A), has erred in not appreciating that sec.153A requires a notice to be issued requiring the assessee to furnish his return of income in respect of each assessment year falling within six assessment years and to assess or re-assess the total income of those six assessment years, and that the scheme of assessment or re-assessment of the total income of a person searched will be brought to naught if no addition is allowed to be made for those six assessment years in the absence of any seized incriminating material.” 3. The above grounds Nos.1 to 5 raised by the Revenue are interconnected and mixed, therefore we adjudicate them together. 4. The facts necessary for disposal of the appeals are stated in brief. Before us, assessee is a Private Limited Company and engaged in the business of trading of textile goods and filed its return of income on 29.09.20009 declaring total income of Rs.25,58,570/-. Subsequently a search action u/s 132 of the Act was conducted at business premises of the assessee on 19.02.2015. During the Course of search action some incriminating documents were found which related to the assessee. Therefore, after recording the reasons, the case was selected for scrutiny by issuing notice u/s 153A of the Income Tax Act, 1961. The notice u/s 153A of the Act was issued on 30.12.2015 and served upon the assessee. During the Course of scrutiny assessment, the assessing officer observed that assessee’s job-work of Rs.256,79,99,218/- was not accounted for in their books of account of respective concerns. Therefore, assessing officer was of the view that group concerns of Sumeet Industries Ltd are engaged in generating unaccounted income. The assessing officer was of the view that in cases where unaccounted Page | 3 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. income is generated, there are always efforts are made by them to bring their unaccounted income back to their books of account without paying any tax on the same. Numerous methods and techniques are used for this purpose. Routing the unaccounted income back to the books of account disguised as loan or share capital is one of such methods used generally. On verification of financial data of group concerns of Sumeet Industries Ltd, it was noticed that Sumeet Group has received huge funds in shape of share capital with huge premium / share application money. Certain companies of Sumeet Group have allotted share capital directly to Kolkata based paper companies with huge premium and within one year or less shares of these Kolkata based paper companies bought back at par value or below par value. As mentioned above, the assessee has received share capital of Rs.6,65,00,000/- from Kolkata based companies and Kolkata based companies have made investment in 665000 equity shares bearing face value of Rs.10/- each at a premium of Rs.90/ per share in FY 2008-09. These shares were transferred by Kolkata based companies to Sitaram Prints Pvt. Ltd., Somani Overseas Pvt. Ltd., National Poly Yarn Pvt. Ltd and Extreme Health Care Pvt. Ltd., group companies of Sumeet Industries Ltd, at a rate of Rs.2/- per share but assessee has not proved identity, creditworthiness and genuineness of transactions of these companies. Accordingly, the assessee was asked to show cause vide letter dated 28.08.2017, as to why the amount of Rs.6,65,00,000/- for F.Y 2008-09 relevant to assessment year 2009-10 should not be treated as its unaccounted money in the form of bogus share premium and added u/s 68 of the Act. 5. In response, the assessee has submitted the following documents and evidences to prove identity, creditworthiness and genuineness of transactions: Sr.No. Details furnished To prove IDENTITY 1 Confirmation statement of shareholder parties duly signed mentioning therein name of the shareholder and complete address of the shareholder which was available with the assessee. To prove identity of shareholder parties Page | 4 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. 2 Company master data of shareholders That the shareholders are having active status on ROC website. CREDITWORTHINESS 3 Copy of bank statement of shareholder parties. Creditworthiness of shareholder parties proving that shareholder was having enough funds to invest money in the capital of assessee. 4 Copy of return of income of shareholder parties. To prove that shareholders are income tax assessee having regularly filing return of income. GENUINENESS OF INVESTMENT 5 Copy of Annual accounts of the shareholder parties. Genuineness of transaction showing all shareholders are having enough net worth to invest in shares of assessee company. 6 Book value of share as on 3/03/2013 at Rs.107.91 To show that security premium of Rs.90/- has been decided taking into the fair market value of shares which is prescribed method under Rule 11 UA(2)(a) of IT Rules. PRUDENCE OF DECISION BY ASSESSEE 7 Copy of resolution passed by Board of Directors to issue shares at a premium That the decision is taken by management after discussion 8 Ledger copies of share capital account and share premium account COMMUNICATION WITH SHAREHOLDERS 9 Copies of shar application forms To prove communication with shareholders 10 Copies of share certificate 6. However, assessing officer rejected the contention of the assessee and held that to prove the identity of its shareholders on the ground that they are corporate entities, who are registered with the ROC and are having PAN and are filing income-tax return, in this regard, it needs to be noted that no company can come into existence without obtaining registration under the Companies Act and the Income-Tax Act. Thus, AO noted that this is a common requirement for all corporate entities i.e. genuine as well as non-genuine entities, therefore, the identity of a company does not stand fully established by merely furnishing its Page | 5 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. PAN or ROC registration details and by submitting bank statements and Balance Sheets, the creditworthiness and genuineness of the transactions cannot be proved. Therefore, the share capital of Rs.6,65,00,000/- as received by the assessee company was treated as unexplained cash credits u/s 68 of the Act and was added to the total income of the assessee. 7. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has deleted the addition made by the Assessing Officer. 8. Learned CIT-DR for the Revenue submitted before us written submission, which is reproduced below: “A search action u/s 132 of the Income Tax Act was carried out on 19.02.2015 in the case of Sumeet Industries Ltd. Group of Surat. During the Course of search action some incriminating documents were found, which are related to assessee. On the basis of the same the case was selected for scrutiny by issuing notice u/s 153A of I.T Act after recording adequate and proper reasons. The case of assessee i.e. Sumeet Menthol P. Ltd. was also covered u/s 132 of the I.T Act. 2. The assessee-company has received share capital of Rs.6,65,00,000/- from Kolkata based companies. The Kolkata based companies have made investment in 6,65,00,000 equity shares bearing face value of Rs.10/- each at a premium of Rs. 90/- per share in F.Y. 2008-09. These shares were transferred by Kolkata based companies to Sitaram Prints P. Ltd., Somani Overseas P. Ltd, National Poly Yarn P. Ltd. and Extreme Health Care P. Ltd. Group companies of Sumeet Industries Ltd. at the rate of Rs. 2/- per share. Assessee could not prove identity, creditworthiness and genuineness of transactions of these companies as well are proven paper companies. 3. Before going in depth of the case, it is necessary to understand the correct meaning of the word 'INCRIMINATING.  Lateral meaning of word incriminating is that to charge or show evidence or proof of involvement in a crime or fault.  Incriminate also describes that:  To charge with crime,  To expose to an accusation or a charge of crime.  To involve oneself or another in a criminal prosecution or the danger thereof. 4. During the search and survey action on Sumeet Industries Ltd. were found to be recovered from computers back up/pend rive. These job works of Rs.256,79,99,218/- was not accounted for in their books of account of respective concerns. Page | 6 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. The AO in the assessment order has very well noted that the information in relation to unaccounted job charges with the unaccounted income generated by the assessee by debiting bogus expenditure under the head job work charges. On the basis of the above information which is in nature of incriminating, the provisions of the section 153A of the Income Tax Act clearly attracts in the case. The provisions of the section narrate as under: [Assessment in case of search or requisition.- —153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person- where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003 — [but on or before the 31st day of March, 2021], the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years -[and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, —so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made -[and for the relevant assessment year or years] : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years-[and for the relevant assessment year or years] : Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years -[and for the relevant assessment year or years] referred to in this -[sub-section] pending- on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate: [Provided also that the Central Government may by rules— made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made —[and for the relevant assessment year or years]:] [Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless— Page | 7 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and (c) the search under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017. Explanation 1.—For the purposes of this sub-section, the expression "relevant assessment year" shall mean an assessment year preceding the assessment year relevant to the previous year in which search is conducted or requisition is made which falls beyond six assessment years but not later than ten assessment years from the end of the assessment year relevant to the previous year in which search is conducted or requisition is made. Explanation 2.—For the purposes of the fourth proviso, "asset" shall include immovable property being land or building or both, shares and securities, loans and advances, deposits in bank account.] [(2) If any proceeding initiated or any order of assessment or reassessment made under subsection (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub- section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the —[Principal Commissioner or] Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation.—For the removal of doubts, it is hereby declared that,— (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year. 5. Now, it is very important to mention here that Notice u/s 153A is only tool to start assessment proceeding for last six assessment years. During the assessment proceedings, the assessing officer has to exercise all procedures for framing independent assessment as per the provisions of Income Tax Act. Under Section 153A, the Assessing Officer exercises normal assessment powers. Initiation of Page | 8 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. proceedings under section 153 A is not dependent on the fact that there should be separate evidences or incriminating document for particular undisclosed income for each assessment year during last six assessment years. The Ld. CIT(A) has stated in his decision that no assessment proceedings were pending on the date of search i.e. 19.02.2015, it was contented that addition has been made without finding of any incriminating material during the course of search so that addition made by the A.O. are not found legally sustainable. The reliance has also been placed upon on several pronouncement of the Hon'ble High Court by the Id. CIT(A). The assessee has also contended that addition of Rs.6,65,00,000/- made on account of share application money in the order u/s. 143(3) r.w.s. 153A of the Act is bad in law. It was, further contended by assessee that the Ld. Assessing officer made inquiry in already completed assessment. It is submitted that the scope of the assessment proceedings U/s. 153A of the Act in respect of an assessment, which has already been completed is restricted only to making an assessment of income which are based on incrementing material found during the course of search. 5.1 The above contentions by the Id. CIT (A) as well as the assessee are not found to be acceptable on the ground that the Department was already possessing incrementing document as mentioned in the assessment order. It empowers to the Department to initiate the proceedings as per provision 153A of the I.T. Act. In these provisions, the Act itself is clear that assessment proceedings may be started for the last six assessment years. There is nowhere mentioned in the Act that Department should have separate incrementing document for each year of the last six assessment years for which assessment proceedings have been started. There is also no requirement under section 153A and other provisions requiring the department to collect the information and evidences for each and every year for the six previous years under section 153A of I.T. Act. The intention of legislature is very clear by not mentioning this aspect in the provisions of the 153A of the Act. The assessment proceedings started U/s. 153A do not fall in the category of 'Limited scrutiny' but it is a complete scrutiny so the assessing officer is binding to exercise all options which were laid down in the provisions of I.T. Act. So, the addition of Rs.6,65,00,000/- on account of bogus share capital made in the order u/s 143(3) r.w.s. 153Aof the Act. is valid addition and justifiable as per the I. T. Act. It is also equally important to mention here that during the course of assessment proceedings, the assessee was asked to show cause vide letter dated 28.08.2017 as to why the amount of Rs.6,65,00,000/- for F.Y. 2008-09 relevant to A.Y.2009-10 should not be treated as its unaccounted money in the form of bogus share premium added u/s 68 of the Act. The assessee submitted its reply on merit only not on any technical issue. The assessee furnished its reply explaining identity, creditworthiness and genuineness on creditors. On perusal of the submission furnished before Hon'ble Bench, it is clear that the assessee has not raised any technical issue during course of assessment proceeding before the A.O. It is first time before Hon'ble Bench, where the assessee pleading that the A.O. has no jurisdiction to make an assessment of income which is not based on material found in the course of search, where the assessment for the relevant assessment year has already been concluded prior to the date of search and where the assessment does not abate under the proviso to Section 153A(1) of the I.T. Act. Hence, these type of arguments can not be entertained at this juncture.” Page | 9 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. 9. Shri Rasesh Shah, Ld. counsel for the assessee pleaded that in assessee’s case under consideration the assessment year involved is ‘assessment year 2009- 10’, wherein the time limit to issue notice for scrutiny under section 143(2), is 31.09.2009 and after completion of assessment for the assessment year 2009-10, the search and seizure action was conducted on 19.02.2015, therefore assessment year 2009-10 is unabated assessment. The Ld. Counsel pointed out that in case of unabated assessment, no addition should be made without the aid of incriminating material. Therefore, since the Department has failed to demonstrate the incriminating material in the assessee`s case under consideration. Therefore, addition made by the Assessing Officer, which is without incriminating material, hence such addition should be deleted. To bolster his arguments, ld Counsel relied on the following judgments: (1) CIT vs Kabul Chawla (2016) 380 ITR 573 (Del) (2) Shoyma Construction 387 ITR 552 (Guj) Therefore, ld Counsel contended that order passed by ld CIT(A) is a reasoned and speaking order and in fact ld CIT(A) relied on the judgment of Hon`ble Jurisdictional High Court of Gujarat in the case of Shoyma Construction 387 ITR 552 (Guj), hence ld Counsel contended that order passed by the ld CIT(A) may be upheld. 10. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We find merit in the submission of ld Counsel for the assessee, as he pointed out that in assessee’s case under consideration, the assessment year involved is ‘assessment year 2009-10’, wherein the time limit to issue notice for scrutiny under section 143(2), is 31.09.2009 and after completion of assessment for the assessment year 2009-10, the search and seizure action was conducted on 19.02.2015, therefore assessment year 2009-10 is unabated assessment. We note that in case of unabated assessment, no addition should be made without the aid of incriminating material. In the assessment order, the assessing officer made addition based on the unaccounted job work receipts Page | 10 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. and no any incriminating material was used by the assessing officer to make addition on account of share capital/share premium. The issue of share capital and share premium have already been examoined by the assessing officer in the original assessment proceedings, therefore, since the Department has failed to demonstrate the incriminating material in the assessee`s case under consideration. Therefore, the assessee's case is covered by the judgment of Hon'ble High Court of Gujarat, in the case of PCIT Vs. Saumya Construction Pvt. Ltd. (2016) 387 ITR 529 (Guj), wherein, the Hon`ble Court held as follows: “5. Before adverting to the merits of the rival contentions, reference may be made to the decisions of different High Courts on which reliance has been placed by the learned counsel for the respective parties. The lead judgment in this regard is the decision of the Delhi High Court in the case of Anil Kumar Bhatia (supra), wherein the court held thus : "18. A perusal of Section 153A shows that it starts with a non obstante clause relating to normal assessment procedure which is covered by sections 139, 147, 148, 149, 151 and 153 in respect of searches made after 31.5.2003. These sections, the applicability of which has been excluded, relate to returns, assessment and reassessment provisions. Prior to, the introduction of these three sections, there was Chapter XIV-B of the Act which took care of the assessment to be made in cases of search and seizure. Such an assessment was popularly known as "block assessment" because the Chapter provided for a single assessment to be made in respect of a period of a block of ten assessment years prior to the assessment year in which the search was made. In addition to these ten assessment years, the broken period up to the date on which the search was conducted was also included in what was known as "block period". Though a single assessment order was to be passed, the undisclosed income was to be assessed in the different assessment years to which it related. But all this had to be made in a single assessment order. The block assessment so made was independent of and in addition to the normal assessment proceedings as clarified by the Explanation below Section 158BA(2). After the introduction of the group of Sections namely, 153A to 153C, the single block assessment concept was given a go-by. Under the new Section 153A, in a case where a search is initiated under Section 132 or requisition of books of account, documents or assets is made under Section 132A after 31.5.2003, the Assessing Officer is obliged to issue notices calling upon the searched person to furnish returns for the six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted or requisition was made. The other difference is that there is no broken period from the first day of April of the financial year in which the search took place or the requisition was made and ending with the date of search/requisition. Under Section 153A and the new scheme provided for, the AO is required to exercise the normal assessment powers in respect of the previous year in which the search took place. Page | 11 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. 19. Under the provisions of Section 153A, as we have already noticed, the Assessing Officer is bound to issue notice to the assessee to furnish returns for each assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which the search or requisition was made. Another significant feature of this Section is that the Assessing Officer is empowered to assess or reassess the "total income" of the aforesaid years. This is a significant departure from the earlier block assessment scheme in which the block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved, resulting in multiple assessments. Under Section 153A, however, the Assessing Officer has been given the power to assess or reassess the "total income" of the six assessment years in question in separate assessment orders. This means that there can be only one assessment order in respect of each of the six assessment years, in which both the disclosed and the undisclosed income would be brought to tax. 20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. For this purpose, the fetters imposed upon the Assessing Officer by the strict procedure to assume jurisdiction to reopen the assessment under Sections 147 and 148, have been removed by the non obstante clause with which sub section (1) of Section 153A opens. The time-limit within which the notice under Section 148 can be issued, as provided in Section 149 has also been made inapplicable by the non obstante clause. Section 151 which requires sanction to be obtained by the Assessing Officer by issue of notice to reopen the assessment under Section 148 has also been excluded in a case covered by Section 153A. The time-limit prescribed for completion of an assessment or reassessment by Section 153 has also been done away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. 21. Now there can be cases where at the time when the search is initiated or requisition is made, the assessment or reassessment proceedings relating to any assessment year falling within the period of the six assessment years mentioned above, may be pending. In such a case, the second proviso to sub section (1) of section 153A says that such proceedings "shall abate". The reason is not far to seek. Under section 153A, there is no room for multiple assessment orders in respect of any of the six assessment years under consideration. That is because the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the "total income" of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the same assessment year determining the total income of the assessee. In order to ensure this state of affairs namely, that in respect of the six assessment years preceding the assessment year relevant to the year in which the search took place there is only one determination of the total income, it has been provided Page | 12 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. in the second proviso of sub Section (1) of section 153A that any proceedings for assessment or reassessment of the assessee which are pending on the date of initiation of the search or making requisition "shall abate". Once those proceedings abate, the decks are cleared, for the Assessing Officer to pass assessment orders for each of those six years determining the total income of the assessee which would include both the income declared in the returns, if any, furnished by the assessee as well as the undisclosed income, if any, unearthed during the search or requisition. The position thus emerging is that where assessment or reassessment proceedings are pending completion when the search is initiated or requisition is made, they will abate making way for the Assessing Officer to determine the total income of the assessee in which the undisclosed income would also be included, but in cases where the assessment or reassessment proceedings have already been completed and assessment orders have been passed determining the assessee's total income and such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In this latter situation, the Assessing Officer will reopen the assessments or reassessments already made (without having the need to follow the strict provisions or complying with the strict conditions of sections 147, 148 and 151) and determine the total income of the assessee. Such determination in the orders passed under section 153A would be similar to the orders passed in any reassessment, where the total income determined in the original assessment order and the income that escaped assessment are clubbed together and assessed as the total income. In such a case, to reiterate, there is no question of any abatement of the earlier proceedings for the simple reason that no proceedings for assessment or reassessment were pending since they had already culminated in assessment or reassessment orders when the search was initiated or the requisition was made." 6. In Filatex India Ltd. (supra), the Delhi High Court has held thus : "2. On the first question, we note that the Assessing Officer, in the proceedings under Section 153A of the Act, had made several additions, relying upon the incriminating material found in the course of search, which was conducted on 18th January, 2006 and subsequent dates. A perusal of the impugned order by the Tribunal would disclose that incriminating material including statement of Sanjay Agrawal, GM(Marketing) have resulted in additions, which have been upheld. It is not the case of the appellant-assessee that initiation of proceedings under Section 153A was bad or unwarranted in law as no incriminating material was found during the search. The contention raised by the appellant- assessee is that the addition, which is the subject matter of questions No.(ii) and (iii),was/is not justified in the assessment order under Section 153A, as no incriminating material was found concerning the addition under Section 115 JB of the Act. The said argument has no substance and has to be rejected. Under Section 153A of the Act, the additions need not be restricted or limited to the incriminating material, which was found during the course of search. There cannot be multiple assessments, once Section 153A of the Act is applicable. Section 153A(1) postulates one assessment, computing the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted or requisition was made. Total income is assessed or reassessed in the order under Section 153A of the Act and Page | 13 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. the Section applies notwithstanding Sections 139, 147, 148, 149, 151 and 153 of the Act." 7. In Jai Steel (India), Jodhpur (supra), the Rajasthan High Court held thus : "15.A plain reading of the above provision would reveal that if a search or requisition is initiated after 31.05.2003, the AO is under an obligation to issue notice to such person, who has been subjected to search/requisition to furnish the return of income of six years immediately preceding the year of search. The AO is then required to assess or reassess total income of the said six years and, out of the six years, if any assessment or reassessment is pending on the date of initiation of the search, the same would abate i.e. pending proceedings qua the said assessment year shall not proceed thereafter and the assessment has to be made under Section 153A(1)(b) of the Act read with the first proviso thereunder. 16. Further provisions have been made contemplating a situation where an assessment made under sub-section (1) is annulled in appeal or other legal proceedings. The Section starts with a non obstante clause, which removes the restrictions upon the AO from assuming jurisdiction to reopen the assessment under Sections 147, 148 and 151 etc. 17. Prior to introduction of Sections 153A to 153C, Chapter XIVB of the Act took care of the assessments to be made in cases of search and seizure, which were called 'block assessment', whereby, a single assessment was required to be in respect of a period of block of ten years prior to the assessment year, in which, the search was made. After the introduction of Sections 153A to 153C, a single block assessment concept has been given a go bye and now the AO has been given the power to assess or reassess the 'total income' of the six years in question in separate assessment orders. 18. To consider the rival submissions made at the Bar in the context of the present case and the substantial question of law framed, the scope of 'assessment and reassessment of total income' under Section 153A(1)(b) and the first and second proviso have to be considered. Further, for answering the above issues, guidance will have to be sought from Section 132(1) of the Act, as Section 153A of the Act cannot be read in isolation, inasmuch as, the same is triggered only on account of any search/requisition under Sections 132 or 132A of the Act. If any books of accounts or other documents relevant to the assessment had not been produced in the course of original assessment and, found in the course of search, such books of accounts or other documents have to be taken into consideration while assessing or reassessing the total income under the provisions of Section 153A of the Act. Even in a case where undisclosed income or undisclosed property has been found as a consequence of the search, the same would also be taken into consideration. The requirement of assessment or reassessment under the said section has to be read in the context of Sections 132 or 132A of the Act, inasmuch as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of the concluded assessments does not arise, which would require more reiteration and it is only in the context of the abated assessment under second proviso which is required to be assessed. Page | 14 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. 19. The underline purpose of making assessment of total income under Section 153A of the Act is, therefore, to assess income which was not disclosed or would not have been disclosed. The purpose of second proviso is also very clear, inasmuch as, once a assessment or reassessment is 'pending' on the date of initiation of search or requisition and in terms of Section 153A a return is filed and the AO is required to assess the same, there cannot be two assessment orders determining the total income of the assessee for the said assessment year and, therefore, the proviso provides for abatement of such pending assessment and reassessment proceedings and it is only the assessment made under Section 153A of the Act would be the assessment for the said year. 20. The necessary corollary of the above second proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and, such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In such cases, where the assessments already stands completed, the AO can reopen the assessments or reassessments already made without following the provisions of Sections 147, 148 and 151 of the Act and determine the total income of the assessee. 21. The argument raised by the counsel for the appellant to the effect that once a notice under Section 153A of the Act is issued, the assessments for six years are at large both for the AO and assessee has no warrant in law. 22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. Though such a claim by the assessee for the first time under Section 153A of the Act is not completed, the case in hand, has to be considered at best similar to a case where in spite of a search and/or requisition, nothing incriminating is found. In such a case though Section 153A of the Act would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the same would in that case not result in any addition and the assessments passed earlier may have to be reiterated." 8. In Kabul Chawla, the Delhi High Court after considering its earlier decisions in the case of Anil Kumar Bhatia (supra), CIT v. Chetan Das Cachman Das [2012] 211 Taxman 61/25 taxmann.com 227, Filatex India Ltd. (supra) decision of the Page | 15 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. Karnataka High Court in the case of Canara Housing Development Company (supra) as well as the other decisions, held thus: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 9. Section 153A of the Act reads thus : "153A. Assessment in case of search or requisition.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are Page | 16 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 10. Since the assessment under section 153A is required to be made after a search under section 132 or requisition under section 132A, it may be germane to refer to the provisions of sections 132 and 132A of the Act. Section 132 of the Act provides for search and seizure, and to the extent the same is relevant for the present purpose, reads thus: "132. Search and seizure. - (1) Where the Director General or Director or the Chief Commissioner or Commissioner or any such Deputy Director or Deputy Commissioner as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that- Page | 17 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. (a) any person to whom a summons under sub- section (1) of section 37 of the Indian Income- tax Act, 1922 (11 of 1922) or under subsection (1) of section 131 of this Act, or a notice under sub- section (4) of section 22 of the Indian Income- tax Act, 1922 (11 of 1922), or under sub- section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income- tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be disclosed for the purposes of the Indian Income- tax Act, 1922 (11 of 1922) or this Act (hereinafter in this section referred to as the undisclosed income or property), then,- (A) the Director General or Director] or the Chief Commissioner or Commissioner, as the case may be, may authorise any Deputy Director, Deputy Commissioner, Assistant Director, Assistant Commissioner or Income- tax Officer, or (B) such Deputy Director or Deputy Commissioner, as the case may be, may authorise any Assistant Director, Assistant Commissioner or Income-tax Officer, the officer so authorised in all cases being hereinafter referred to as the authorised officer to- (i) enter and search any building, place, vessel, vehicle or aircraft] where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the look of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iia) search any person who has got out of, or is about to get into, or is in the building, place, vessel, vehicle or aircraft, if the authorized officer has reason to suspect that a such person has secreted about his person any such books of account, other documents, money bullion, jewellery or other valuable article or thing; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search; (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing: Provided that where any building, place, vessel, vehicle or aircraft Page | 18 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. referred to in clause (i) is within the are of jurisdiction of any Chief Commissioner or Commissioner], but such Chief Commissioner or Commissioner] has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c), then notwithstanding anything contained in section 120], it shall be competent for him to exercise the powers under this sub- section in all cases where he has reason to believe that any delay in getting the authorisation for the Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interest of the revenue:] Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control on the owner or the person who is in immediate possession or control thereof that he shall not remove part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii)" 11. Section 132A of the Act provides for "Power to requisition books of account, etc." and to the extent the same is relevant for the present purpose, reads thus: "132A. Powers to requisition books of account, etc. (1) Where the Director General or Director or the Chief Commissioner or Commissioner, in consequence of information in his possession, has reason to believe that - (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922, or under sub-section (1) of sec. 131 of this Act, or a notice under subjection (4) of section 22 of the Indian Income- tax Act, 1922, or under sub- section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents, as required by such summons or notice and the said books of account or other documents have been taken into custody by any officer or authority under any other law for the time being in force, or (b) any books of account or other documents will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act and any person to whom a summons or notice as aforesaid has been or might be issued will not or would not produce or cause to be produced, such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or (c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income-tax Act, 1922, or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, Page | 19 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. then, the Director General or Director or the Chief Commissioner or Commissioner may authorise any Deputy Director, Deputy Commissioner, Assistant Director [Assistant Commissioner or Income-tax Officer] (hereafter in this section and in sub-section (2) of section 278D referred to as the requisitioning officer) to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer." 12. Section 132 of the Act makes provision for search and seizure. The powers of search and seizure can be exercised thereunder provided the requirements of sub- section (1) thereof are satisfied. For exercise of powers thereunder, the Commissioner would have to record satisfaction that despite issuance of notice under section 142(1) of the Act, the assessee has omitted or failed to produce or cause to produce books of account or other documents; or if such notice is issued, the assessee would fail to produce the books of account or other documents; or the assessee possesses money, bullion, jewellery, or other valuable article or thing which represents income which is not wholly or partly income or property, which has not been or would not be disclosed by the assessee. Thus, it appears that the objective of a search under section 132 of the Act is to secure evidence which is not likely to be made available by issue of summons or by visiting, in ordinary course, the premises concerned. The authorities under the Act have powers to summon persons and documents and have to resort to search and seizure when there is evidence of undisputed documents or assets which have not been and would not have been disclosed in the ordinary course. 13. Similarly, under section 132A of the Act, the authorizing authority would acquire the jurisdiction to authorize an officer to requisition books of account or other documents or assets which have been taken into custody by an officer or authority under any law and thereafter to proceed to deal with the assets provided in the manner provided under sections 132 and 132B only where the authorizing authority has in consequence of any information in his possession reason to believe that such assets represent wholly or partly income or property which has not been or would not have been disclosed for the purposes of the Act by any person from whose possession or control such assets had been taken into custody by the officer or authority from whom these were requisitioned. 14. Essentially, therefore, both the provisions contemplate search and requisition where the assessee is not likely to disclose his income. It appears that the object of both the provisions is to unearth the income which the assessee has not or is not likely to disclose. 15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is linked with search and requisition under sections 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. Page | 20 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assessee the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub-section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub- section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the legislature is clear viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. Page | 21 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of statements recorded on oath of Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, when the limit for framing the assessment as provided under section 153 was about to expire, the notice has been issued in the present case seeking to make the proposed addition of Rs.11,05,51,000/- on the basis of the material which was not found during the course of search, but on the basis of a statement of another person. In the opinion of this court, in a case like the present one, where an assessment has been framed earlier and no assessment or reassessment was pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall Page | 22 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed.” 11. Thus, the judgment of the Jurisdictional Gujarat High Court in the case of Saumya Construction Pvt. Ltd (supra) clearly says that no addition should be made without the aid of incriminating material in case of unabated assessment. The ld CIT(A) observed that assessee filed regular return of income on 30.09.2009 for the year under consideration. On the date of search i.e. 19.02.2015, there was no assessment proceedings pending, which got abated. In the assessment order, there is no mention of any documentary evidence found or any oral evidence in the form of statement of anyone, which was made basis for the addition made by the assessing officer. Therefore, ld CIT(A) rightly noted that addition made in the assessment order passed u/s 153A of the Act cannot be sustained, if these are not based on any incriminating material found during the course of search. 12. We note that assessee`s case has been squarely covered by the judgment of Hon'ble High Court of Gujarat, in the case of PCIT vs Saumya Construction Pvt. Ltd. (2016) (387) - ITR 529 (Guj)(Supra) in which it has been held that addition made in the assessment order passed u/s 153A of the Act cannot be sustained, if these are not based on any incriminating material found during the course of search. The cases of the assessee are also covered by the following orders of Higher Judicial authorities. (I) CIT Vs Rameshbhai Jeevrajbhai Desai (2021) 271Taxmann.com 154 (Guj) (II) All Cargo Global Logistics Ltd. & others vs DCIT (2012) 74 DTR (Mum) Page | 23 IT(SS) A No.49/SRT/2021 AY.09-10 Sitaram Prints Pvt. Ltd. (III) CIT vs Kabul Chawla (2016) 380 ITR 573 (Del) (IV) Jain Steal (India) Jodhpur vs ACIT (2013) 573 CTR 281 (Raj) 13. Hence, at the cost of repetition, we state that no assessment proceedings was pending on the date of search i.e. 19.02.2015 in this case and the additions have been made without finding of any incriminating material during the course of search, therefore ld CIT(A) has rightly deleted the addition. That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue is dismissed. 14. In the result, the appeal filed by the Revenue is dismissed. Order is pronounced on 17/10/2022 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 17/10/2022 Dkp. Outsourcing Sr.P.S / SS Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat