Sensitive Vanijya Pvt. Ltd., , Siliguri V. ACIT, Central Circle - 4(1), Kolkata , Kolkata

ITSSA 53/KOL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8160 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 03-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOUMITRA CHOUDHURY ASSESS
• Keywords: Unexplained cash credit; Unexplained investment; Business income; Search and seizure; Loose papers; Document seized; Source of fund; Question of law; Accommodation entries; Block assessment; Documents seized
• Section: 143(3); 142(1); 153A; 14A; 143(1); 250; 143(2); 264; 139(1); 48; 73; 13; 153; 153C; 131; 132; 139; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA VIRTUAL COURT HEARING (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER) IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD.....................................................APPELLANT C/O MUKESH GOYAL ASHOK VIHAR COLONY JANTA NAGAR SEVOKE ROAD SILIGURI 734 001 [PAN : AAKCS 1287 Q] VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(1), KOLKATA...................RESPONDENT APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SANDEEP CHAUBE, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 26 TH , 2020 DATE OF PRONOUNCING THE ORDER : JANUARY 14 TH , 2021 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 21, (HEREINAFTER THE LD. CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 07/06/2018, FOR THE ASSESSMENT YEAR 2011-12. 2. THE ASSESSEE IS A COMPANY AND ORIGINALLY FILED ITS RETURN OF INCOME ON 27/09/2011 FOR THE ASSESSMENT YEAR 2011-12, DECLARING TOTAL NEGATIVE INCOME OF RS.5,203/-. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON THE FERRO ALLOYS GROUP ON 12/08/2015. NOTICE U/S 153A OF THE ACT WAS ISSUED ON THE ASSESSEE ON 08/12/2016. THE ASSESSEE IN RESPONSE FILED A RETURN ON 13/02/2017 DECLARING THE SAME INCOME AS WAS DECLARED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139 OF THE ACT. THEREAFTER NOTICE U/S 143(2) AND 142(1) OF THE ACT, WAS SERVED ON THE ASSESSEE AND ULTIMATELY THE ASSESSMENT WAS COMPLETED U/S 153A/153D/143(3) OF THE ACT ON 31/12/2017, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.59,94,797/- INTERALIA MAKING ADDITION OF RS.60,00,000/- U/S 68 OF THE ACT, ON THE GROUND THAT THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE ALONG WITH SHARE PREMIUM FROM FOUR (4) SHARE APPLICANT COMPANIES WAS UNEXPLAINED CASH CREDIT. THE ASSESSING OFFICER HELD THAT THE SHARE APPLICANT COMPANIES WERE PAPER COMPANIES AND THAT THE CREDITWORTHINESS AND GENUINENESS OF THE SHARE CAPITAL RECEIVED IN THE BOOKS OF THE ASSESSEE TO THE TUNE OF RS.60,00,000/ THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, WITHOUT SUCCESS. 3. FURTHER AGGRIEVED, THE ASSESS 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T(A) ERRED IN DISPOSING OF THE APPEAL AND DISMISSING THE SAME IN SUMMARY MANNER WITHOUT CONSIDERING THE SU RECORDS. 3. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER ADMITTEDLY BEING PASSED UNDER THE INTERFERENCE OF THE HIGHER AUTHORITIES IS NULL AND VOID. 4. FOR THAT THE LD. C.I.T(A) ERRED IN DISPOS ASSESSING THE SHARE CAPITAL AND SHARE PREMIUM RAISED DURING THE YEAR AS UNEXPLAINED WHEREAS THE APPELLANT HAS EXPLAINED IN DETAILED AND FILED THE NAMES, ADDRESS, PAN OF THE SHARE APPLICANT AND DETAILS OF AM INCOME, COMPUTATION OF TOTAL INCOME, FINANCIAL STATEMENTS AND CONFIRMATION LETTER EXPLAINING THE SOURCE OF FUND FOR MAKING, INVESTMENT IN THE APPELLANT COMPANY. 5. FOR THAT THE LD. C.I.T(A) ERRED IN DIS STATING THAT THE APPELLANT DID NOT MAKE COMPLIANCE TO NOTICE U/S 131WHEREAS THE REPLIES WERE DULY SUBMITTED BY THE APPLICANT COMPANIES BUT THE AO PROCEEDED TO COMPLETE THE ASSESSMENT WITHOUT GIVING FURTH DETAILS, DOCUMENTS AND EVIDENCES TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF TRANSACTION. 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIF AND THE ASSESSEE BE GIVEN THE RELIEF PRAYED FOR. 4. THE ASSESSEE RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL, WHICH READ AS FOLLOWS:- 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.( ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE A.O. WAS WRONG IN MAKING ADDITION WITHOUT FINDING AND INDICATING ANY INCRIMINATING MATERIAL AND WHERE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) HAD ALREADY BEE ABATED IN VIEW OF THE SECOND PROVISO TO SECTION 153A OF THE I.T. ACT, THEREFORE, ADDITION SUSTAINED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL AND SHOULD HAVE BEEN QUASHED. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT CONSIDERING THE FACTS THAT ORIGINAL RETURN OF INCOME WAS FILED U/S. 139(1) ON 27.09.2011 AND THE TIME FOR ISSUE OF NOTICE U/S. 143(2) OF THE ACT WAS EXPIRED ON 27.09.2012 AND ASSE 143(1), THERE WAS A SEARCH UNDER SEIZURE ACTION U/S INCRIMINATING MATERIAL WAS FOUND WITH REFERENCE TO THE ADDITION MADE BY THE A.O. ON ACCOUNT OF SHARE APPLICATION MONEY WITH SHARE PREMIUM BY WRONGLY TRE UNEXPLAINED CASH CREDIT U/S 68 AMOUNTING TO RS.60,00,000/ MADE IN AN ASSESSMENT MADE U/S. 153A OF THE JUDGEMENTS. 2 ASSESSEE TO THE TUNE OF RS.60,00,000/ - WAS NOT PROVED. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, WITHOUT SUCCESS. FURTHER AGGRIEVED, THE ASSESS EE IS BEFORE US ON THE FOLLOWING GROUNDS: 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T(A) ERRED IN DISPOSING OF THE APPEAL AND DISMISSING THE SAME IN SUMMARY MANNER WITHOUT CONSIDERING THE SU BMISSIONS AND EVIDENCES ON ASSESSMENT 3. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER ADMITTEDLY BEING PASSED UNDER THE INTERFERENCE OF THE HIGHER AUTHORITIES IS NULL AND VOID. 4. FOR THAT THE LD. C.I.T(A) ERRED IN DISPOS ING THE APPEAL FILED WHEREIN THE LD A.O. ERRED IN ASSESSING THE SHARE CAPITAL AND SHARE PREMIUM RAISED DURING THE YEAR AS UNEXPLAINED WHEREAS THE APPELLANT HAS EXPLAINED IN DETAILED AND FILED THE NAMES, ADDRESS, PAN OF THE SHARE APPLICANT AND DETAILS OF AM OUNT RECEIVED ALONG WITH COPIES OF THEIR RETURNS OF INCOME, COMPUTATION OF TOTAL INCOME, FINANCIAL STATEMENTS AND CONFIRMATION LETTER EXPLAINING THE SOURCE OF FUND FOR MAKING, INVESTMENT IN THE APPELLANT COMPANY. 5. FOR THAT THE LD. C.I.T(A) ERRED IN DIS POSING THE APPEAL FILED WHEREIN THE LD A.O. ERRED IN STATING THAT THE APPELLANT DID NOT MAKE COMPLIANCE TO NOTICE U/S 131WHEREAS THE REPLIES WERE DULY SUBMITTED BY THE APPLICANT COMPANIES BUT THE AO PROCEEDED TO COMPLETE THE ASSESSMENT WITHOUT GIVING FURTH ER OPPORTUNITY. THE APPELLANT HAD ALSO FILED ALL THE RELEVANT DETAILS, DOCUMENTS AND EVIDENCES TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIF AND THE ASSESSEE BE GIVEN THE RELIEF PRAYED FOR. THE ASSESSEE RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL, WHICH READ AS 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.( ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE A.O. WAS WRONG IN MAKING ADDITION WITHOUT FINDING AND INDICATING ANY INCRIMINATING MATERIAL AND WHERE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) HAD ALREADY BEE N EXPIRED MUCH BEFORE THE DATE OF SEARCH AND ASSESSMENT WAS NOT ABATED IN VIEW OF THE SECOND PROVISO TO SECTION 153A OF THE I.T. ACT, THEREFORE, ADDITION SUSTAINED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL AND SHOULD HAVE 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT CONSIDERING THE FACTS THAT ORIGINAL RETURN OF INCOME WAS FILED U/S. 139(1) ON 27.09.2011 AND THE TIME FOR ISSUE OF NOTICE U/S. 143(2) OF THE ACT WAS EXPIRED ON 27.09.2012 AND ASSE SSMENT WAS COMPLETED U/S. 143(1), THERE WAS A SEARCH UNDER SEIZURE ACTION U/S . 132 ON 12.08.2015 AND NO INCRIMINATING MATERIAL WAS FOUND WITH REFERENCE TO THE ADDITION MADE BY THE A.O. ON ACCOUNT OF SHARE APPLICATION MONEY WITH SHARE PREMIUM BY WRONGLY TRE UNEXPLAINED CASH CREDIT U/S 68 AMOUNTING TO RS.60,00,000/ - , THEREFORE, NO ADDITION CAN BE MADE IN AN ASSESSMENT MADE U/S. 153A OF THE I. T. ACT COVERED BY VARIOUS COURT'S IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. WAS NOT PROVED. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, WITHOUT SUCCESS. THE FOLLOWING GROUNDS: - 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T(A) ERRED IN DISPOSING OF THE APPEAL AND DISMISSING THE SAME IN BMISSIONS AND EVIDENCES ON ASSESSMENT 3. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER ADMITTEDLY BEING PASSED UNDER THE INTERFERENCE OF THE HIGHER AUTHORITIES IS NULL AND VOID. ING THE APPEAL FILED WHEREIN THE LD A.O. ERRED IN ASSESSING THE SHARE CAPITAL AND SHARE PREMIUM RAISED DURING THE YEAR AS UNEXPLAINED WHEREAS THE APPELLANT HAS EXPLAINED IN DETAILED AND FILED THE NAMES, ADDRESS, PAN OF THE OUNT RECEIVED ALONG WITH COPIES OF THEIR RETURNS OF INCOME, COMPUTATION OF TOTAL INCOME, FINANCIAL STATEMENTS AND CONFIRMATION LETTER EXPLAINING THE SOURCE OF FUND FOR MAKING, INVESTMENT IN THE APPELLANT COMPANY. POSING THE APPEAL FILED WHEREIN THE LD A.O. ERRED IN STATING THAT THE APPELLANT DID NOT MAKE COMPLIANCE TO NOTICE U/S 131WHEREAS THE REPLIES WERE DULY SUBMITTED BY THE APPLICANT COMPANIES BUT THE AO PROCEEDED TO COMPLETE THE ER OPPORTUNITY. THE APPELLANT HAD ALSO FILED ALL THE RELEVANT DETAILS, DOCUMENTS AND EVIDENCES TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIF IED THE ASSESSEE RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL, WHICH READ AS 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.( A) IS COMPLETELY 2. FOR THAT ON THE FACTS OF THE CASE, THE A.O. WAS WRONG IN MAKING ADDITION WITHOUT FINDING AND INDICATING ANY INCRIMINATING MATERIAL AND WHERE TIME LIMIT FOR ISSUE OF NOTICE U/S N EXPIRED MUCH BEFORE THE DATE OF SEARCH AND ASSESSMENT WAS NOT ABATED IN VIEW OF THE SECOND PROVISO TO SECTION 153A OF THE I.T. ACT, THEREFORE, ADDITION SUSTAINED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL AND SHOULD HAVE 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT CONSIDERING THE FACTS THAT ORIGINAL RETURN OF INCOME WAS FILED U/S. 139(1) ON 27.09.2011 AND THE TIME FOR ISSUE OF SSMENT WAS COMPLETED U/S. 132 ON 12.08.2015 AND NO INCRIMINATING MATERIAL WAS FOUND WITH REFERENCE TO THE ADDITION MADE BY THE A.O. ON ACCOUNT OF SHARE APPLICATION MONEY WITH SHARE PREMIUM BY WRONGLY TRE ATING THE SAME AS , THEREFORE, NO ADDITION CAN BE T. ACT COVERED BY VARIOUS COURT'S 4. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADDUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFORE THE HEARING OF THE APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS ARE LEGAL GROUNDS WHICH DO NOT REQUIRE ANY VER THESE GROUNDS ARE ON RECORD AND IN TERMS OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. VS. CIT REPORTED IN [1998] 229 ITR 383 (SC) SHOULD BE ADMITTED. 5.1. TH E LD. D/R OPPOSED THE CONTENTIONS AND SUBMITTED THAT THESE GROUNDS WERE NOT RAISED BEFORE THE LOWER AUTHORITIES AND HENCE COULD NOT BE ADMITTED. 6. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ADDITIONAL GROUNDS RAISED ARE LEGAL GROUNDS AND THAT ALL THE FACTS RELATABLE TO THESE GROUNDS ARE ON RECORD. H ADMIT THE SAME BY APPLYING THE RATIO OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. (SUPRA) 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO INCRIMINATING MATERIAL W FOUND DURING THE COURSE OF SEARCH IN CASE OF THE ASSESSEE COMPANY AND THE ADDITIONS IN QUESTION OF UNEXPLAINED CASH CREDITS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSEE HAD FILED ITS ORIG RETURN OF INCOME U/S 139(1) OF THE ACT ON 27/09/2011 AND THE TIME FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT, HAD EXPIRED ON 27/09/2012 143(1) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011 ABATED AND UNDER THOSE CIRCUMSTANCES, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY, UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE RELIED ON THE FOLLOWING DECISIONS: DCIT, CC- 2, KOLKATA VS. M/S. RASH ASSESSMENT YEAR: 2010 CIT VS. VEERPRABHU MARKETING LTD. REPORTED IN [2016] 73 TAXMANN.COM 149 (CALCUTTA) PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SALASAR NO. 1929 OF 2016, ITAT NO. 264 OF 2016, JUDGMENT DT. 24 8. ON MER ITS, HE SUBMITTED ALL NECESSARY INFORMATION AND DOCUMENTS TO PROVE THE IDENTITY OF THE SHARE APPLICANT COMPANIES, THE CAPACITY OF THE SHARE APPLICAN AND THE GENUINENESS OF THE TRANSACTIONS HAVE BEEN FILED AND THAT THE ASSESSING OFFICER AND THE LD. CIT(A) WERE WRONG IN SUMMARILY REJECTING THE CLAIM OF THE ASSESSEE. HE 3 THAT THE APPELLANT RESERVES THE RIGHT TO ADDUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFORE THE HEARING OF THE APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS ARE LEGAL GROUNDS WHICH DO NOT REQUIRE ANY VER IFICATION OF FACTS AND THAT ALL THE FACTS RELATED TO ARE ON RECORD AND IN TERMS OF THE JUDGMENT OF THE HONBLE SUPREME COURT NTPC LTD. VS. CIT REPORTED IN [1998] 229 ITR 383 (SC) , THESE LEGAL GROUNDS E LD. D/R OPPOSED THE CONTENTIONS AND SUBMITTED THAT THESE GROUNDS WERE NOT RAISED BEFORE THE LOWER AUTHORITIES AND HENCE COULD NOT BE ADMITTED. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ADDITIONAL GROUNDS RAISED ARE THE FACTS RELATABLE TO THESE GROUNDS ARE ON RECORD. H BY APPLYING THE RATIO OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN NTPC LTD. (SUPRA) . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO INCRIMINATING MATERIAL W FOUND DURING THE COURSE OF SEARCH IN CASE OF THE ASSESSEE COMPANY AND THE ADDITIONS IN QUESTION OF UNEXPLAINED CASH CREDITS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSEE HAD FILED ITS ORIG RETURN OF INCOME U/S 139(1) OF THE ACT ON 27/09/2011 AND THE TIME FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT, HAD EXPIRED ON 27/09/2012 AND THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011 ABATED AND UNDER THOSE CIRCUMSTANCES, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY, UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE RELIED ON THE FOLLOWING DECISIONS: - 2, KOLKATA VS. M/S. RASH MI FLOAT GLASS LTD. IN IT(SS)A NO. 70/KOL/2017, ASSESSMENT YEAR: 2010 -11, ORDER DT. 12 TH DECEMBER, 2018. CIT VS. VEERPRABHU MARKETING LTD. REPORTED IN [2016] 73 TAXMANN.COM 149 PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SALASAR STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, JUDGMENT DT. 24 TH AUGUST, 2016 ITS, HE SUBMITTED ALL NECESSARY INFORMATION AND DOCUMENTS TO PROVE THE IDENTITY OF THE SHARE APPLICANT COMPANIES, THE CAPACITY OF THE SHARE APPLICAN AND THE GENUINENESS OF THE TRANSACTIONS HAVE BEEN FILED AND THAT THE ASSESSING OFFICER AND THE LD. CIT(A) WERE WRONG IN SUMMARILY REJECTING THE CLAIM OF THE ASSESSEE. HE IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. THAT THE APPELLANT RESERVES THE RIGHT TO ADDUCE ANY FURTHER GROUND OR GROUNDS, IF THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS ARE LEGAL ALL THE FACTS RELATED TO ARE ON RECORD AND IN TERMS OF THE JUDGMENT OF THE HONBLE SUPREME COURT , THESE LEGAL GROUNDS E LD. D/R OPPOSED THE CONTENTIONS AND SUBMITTED THAT THESE GROUNDS WERE NOT AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ADDITIONAL GROUNDS RAISED ARE THE FACTS RELATABLE TO THESE GROUNDS ARE ON RECORD. H ENCE WE BY APPLYING THE RATIO OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO INCRIMINATING MATERIAL W AS FOUND DURING THE COURSE OF SEARCH IN CASE OF THE ASSESSEE COMPANY AND THE ADDITIONS IN QUESTION OF UNEXPLAINED CASH CREDITS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSEE HAD FILED ITS ORIG INAL RETURN OF INCOME U/S 139(1) OF THE ACT ON 27/09/2011 AND THE TIME FOR ISSUE OF NOTICE AND THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011 -12 HAS NOT ABATED AND UNDER THOSE CIRCUMSTANCES, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY, UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE MI FLOAT GLASS LTD. IN IT(SS)A NO. 70/KOL/2017, CIT VS. VEERPRABHU MARKETING LTD. REPORTED IN [2016] 73 TAXMANN.COM 149 STOCK BROKING LTD. IN G.A. AUGUST, 2016 ITS, HE SUBMITTED ALL NECESSARY INFORMATION AND DOCUMENTS TO PROVE THE IDENTITY OF THE SHARE APPLICANT COMPANIES, THE CAPACITY OF THE SHARE APPLICAN T COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS HAVE BEEN FILED AND THAT THE ASSESSING OFFICER AND THE LD. CIT(A) WERE WRONG IN SUMMARILY REJECTING THE CLAIM OF THE ASSESSEE. HE FURTHER SUBMITTED THAT IN THE CASE OF TAPOVAN DEALER PVT. LTD., THE ASSESS PASSED U/S 147/143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2014 THE CASE OF MAXIMUM COMMERCIAL PVT. LTD., ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 18/07/2011 FOR THE ASSESSMENT YEAR 2009 PVT. LTD., THE ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 08/12/2017 FOR THE ASSESSMENT YEAR 2015- 16, AND THAT THE TRIBUNAL IN A NUMBER OF DECISIONS, HAS HELD THAT, IN CASES WHERE THE ASSESSMENTS OF THE 143(3) OF THE ACT, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY. 9. ON A QUERY FROM THE BENCH, THE LD. D/R COULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUEST WERE MADE. NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE IS NO REQUIREMENT OF INCRIMINATING MATERIAL WHICH AN ADDITION CAN BE MADE ON CERTAIN JUDGMENTS OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. WE WILL DEAL WITH T ORDER, AS AND WHEN REQUIRED. 10. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL C CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 11. THIS BENCH OF THE TRIBUNAL IN THE CASE OF GLASS LTD. (SUPRA) , UNDER IDENTICAL CIRCUMSTANCES, HAS HELD AS FOLLOWS: 8. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 8.1. WE FIRST CONSIDER THE LEGAL POSIT AN ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT, WHICH IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE, WHEN THE ASSESSMENT FOR THE ASSESSMENT YEAR IN QUESTION HAS NOT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 31/08/2008. THE TIME LIMIT FOR ISSUAL OF NOTICE U/S 143(2) OF THE ACT, WAS 30/09/2009. THE SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THIS CASE ON 18/02/2013. THE STATUTORY OF NOTICE U/S 143(2) OF THE ACT, IN THE CASE OF THE ASSESSMENT YEARS HAD EXPIRED PRIOR TO THE DATE OF SEARCH OPERATION. HENCE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR HAS NOT ABATED. THE ASSESSING OFFICER MADE THE ADDITION IN QUES OBSERVING AS UNDER AT PAGE 15 & 16 OF THE ASSESSMENT ORDER: I) NAMES OF THE COMPANIES APPEALING M STATEMENTS OF THE ENTRY PROVIDERS GIVEN TO INVESTIGATION WING FIGURE AS APPLICANTS TO SHARES IN THE ASSESSEE COMPANY. II) PERUSAL OF THE OPERATING INVESTING COMPANIES IS IN THE SAME BANK AS THAT OF THE ASSESSEE COMPANY. 4 FURTHER SUBMITTED THAT IN THE CASE OF TAPOVAN DEALER PVT. LTD., THE ASSESS PASSED U/S 147/143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2014 - 15 ON THE CASE OF MAXIMUM COMMERCIAL PVT. LTD., ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 18/07/2011 FOR THE ASSESSMENT YEAR 2009 - 10, IN THE CASE OF FARI PVT. LTD., THE ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 08/12/2017 FOR THE 16, AND THAT THE TRIBUNAL IN A NUMBER OF DECISIONS, HAS HELD THAT, IN CASES WHERE THE ASSESSMENTS OF THE SHARE APPLICANT COMPANIES ARE C 143(3) OF THE ACT, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY. ON A QUERY FROM THE BENCH, THE LD. D/R COULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUEST WERE MADE. NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE IS NO REQUIREMENT OF INCRIMINATING MATERIAL BE FOUND THE COURSE OF SEARCH CAN BE MADE IN AN ASSESSMENT U/S 153A/143(3) OF THE ACT. HE RELI OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. WE WILL DEAL WITH T HIS JUDGMENT LATER IN OUR ORDER, AS AND WHEN REQUIRED. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL C ONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - THIS BENCH OF THE TRIBUNAL IN THE CASE OF DCIT, CC- 2, KOLKATA VS. M/S. RASHMI FL , UNDER IDENTICAL CIRCUMSTANCES, HAS HELD AS FOLLOWS: - WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - WE FIRST CONSIDER THE LEGAL POSIT ION AS TO WHETHER, AN ADDITION CAN BE MADE IN AN ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT, WHICH IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE, WHEN THE ASSESSMENT FOR THE ASSESSMENT YEAR IN QUESTION HAS NOT ABATED. IN THE CASE ON HAND, THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 31/08/2008. THE TIME LIMIT FOR ISSUAL OF NOTICE U/S 143(2) OF THE ACT, WAS 30/09/2009. THE SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THIS CASE ON 18/02/2013. THE STATUTORY PERIOD FOR ISSUAL OF NOTICE U/S 143(2) OF THE ACT, IN THE CASE OF THE ASSESSMENT YEARS HAD EXPIRED PRIOR TO THE DATE OF SEARCH OPERATION. HENCE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR HAS NOT ABATED. THE ASSESSING OFFICER MADE THE ADDITION IN QUES OBSERVING AS UNDER AT PAGE 15 & 16 OF THE ASSESSMENT ORDER: - I) NAMES OF THE COMPANIES APPEALING M STATEMENTS OF THE ENTRY PROVIDERS GIVEN TO INVESTIGATION WING FIGURE AS APPLICANTS TO SHARES IN THE ASSESSEE II) PERUSAL OF THE OPERATING BANK A/C SHOWS THAT THE A/C OF MOST OF THE INVESTING COMPANIES IS IN THE SAME BANK AS THAT OF THE ASSESSEE COMPANY. IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. FURTHER SUBMITTED THAT IN THE CASE OF TAPOVAN DEALER PVT. LTD., THE ASSESS MENT ORDER WAS 15 ON 16/12/2016, IN THE CASE OF MAXIMUM COMMERCIAL PVT. LTD., ASSESSMENT ORDER WAS PASSED U/S 143(3) OF 10, IN THE CASE OF FARI STA VANIJYA PVT. LTD., THE ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 08/12/2017 FOR THE 16, AND THAT THE TRIBUNAL IN A NUMBER OF DECISIONS, HAS HELD THAT, SHARE APPLICANT COMPANIES ARE C OMPLETED U/S 143(3) OF THE ACT, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY. ON A QUERY FROM THE BENCH, THE LD. D/R COULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUEST ION WERE MADE. NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE FOUND THE COURSE OF SEARCH BASED ON IN AN ASSESSMENT U/S 153A/143(3) OF THE ACT. HE RELI ED OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED HIS JUDGMENT LATER IN OUR ONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES 2, KOLKATA VS. M/S. RASHMI FL OAT WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES ION AS TO WHETHER, AN ADDITION CAN BE MADE IN AN ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT, WHICH IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE, WHEN THE ABATED. IN THE CASE ON HAND, THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 31/08/2008. THE TIME LIMIT FOR ISSUAL OF NOTICE U/S 143(2) OF THE ACT, WAS 30/09/2009. THE SEARCH AND SEIZURE PERIOD FOR ISSUAL OF NOTICE U/S 143(2) OF THE ACT, IN THE CASE OF THE ASSESSMENT YEARS HAD EXPIRED PRIOR TO THE DATE OF SEARCH OPERATION. HENCE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR HAS NOT ABATED. THE ASSESSING OFFICER MADE THE ADDITION IN QUES TION BY I) NAMES OF THE COMPANIES APPEALING M STATEMENTS OF THE ENTRY PROVIDERS GIVEN TO INVESTIGATION WING FIGURE AS APPLICANTS TO SHARES IN THE ASSESSEE BANK A/C SHOWS THAT THE A/C OF MOST OF THE INVESTING COMPANIES IS IN THE SAME BANK AS THAT OF THE ASSESSEE COMPANY. III) THERE IS NO JUSTIFICATION ON RECORD WHATSOEVER AS TO WHETHER THE COMPANY'S CREDENTIALS COMMANDED A HUGE SHARE PREMIUM, PARTICULARLY WH THE SAME IS BEING PAID BY STRANGERS. IV) SUMMONS U/S 131 TO SUCH PERSONS I COMPANY HAVE NOT BEEN ADEQUATELY RESPONDED AND THE ASSESSEE HAS FAILED TO PRODUCE THEM IN RESPONSE TO THE SHOW- CAUSE NOTICE. V) THE FINDINGS THAT THE INVESTING COMPANIES WHI WERE BORNE ON THE FILE OF THE ROC AND THAT THE MONIES HAVE COME THROUGH A/C PAYEE CHEQUES IS AT BEST, NEUTRAL. MERE PAYMENT BY CHEQUES IS NOT SACROSANCT AS WOULD NOT, MAKE A NON VI) BONAFIDE AND REGARD, THE ASSESSEE COMPANY HAS FAILED MISERABLY. VII) SCRUTINY HAS REVEALED THE CAMOUFLAGE ADOPTED BY THE ASSESSEE AND EXPOSED THE TRUE NATURE OF THE TRANSACTIONS. VIII) ONUS IS ON THE ASSE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS APPEARING IN ITS BOOKS OF SALE WHICH IS NOT PROVED IN THIS CASE. IN FACT, GENUINENESS OF THE TRANSACTIONS HAS NOT BEEN ESTABLISHED IN SPITE OF REPEAT IX) THERE IS ENOUGH MATERIAL ON RECORD TO DOUBT THE VERACITY OF THE TRANSACTIONS. A PERUSAL OF THE ABOVE DEMONSTRATES THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 8.2. ON THE LEGAL POSITION, WE FIND THAT THE VARIOUS COURTS OF LAW UNDER SIMILAR CIRCUMSTANCES HAVE HELD AS FOLLOWS: CIT,KOLKATA- III VS. VEERPRABHU MARKETING LIMITED [2016] 73 TAXMANN.COM 149 (CALCUTTA) : IN THIS CASE THE HONOURABLE CALCUTTA HIGH COURT VIEWS: WE ARE IN AGREEMENT WITH THE VIEWS OF THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSES EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. PCIT- 2, KOLKATA VS. SALASAR STOCK BROKING LIMITED DATED 24.08.2016 : (CALCUTTA) IN THIS CASE, THE HONORABLE HIGH COURT OBSERVED THAT THE LD. ITAT, KOLKATA WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION U/S 153A OF THE I.T. ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH & SEIZURE DID NOT DISCLOSE ANY INCRIMINATING ITAT RELIED UPON THE JUDGMENTS OF DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA IN ITA NO. 707/2014 DATED 28.08.2014 OBSERVED THAT MORE OR LESS AN IDENTICAL VIEW HAS BEEN TAKEN BY 5 III) THERE IS NO JUSTIFICATION ON RECORD WHATSOEVER AS TO WHETHER THE COMPANY'S CREDENTIALS COMMANDED A HUGE SHARE PREMIUM, PARTICULARLY WH THE SAME IS BEING PAID BY STRANGERS. IV) SUMMONS U/S 131 TO SUCH PERSONS I COMPANY HAVE NOT BEEN ADEQUATELY RESPONDED AND THE ASSESSEE HAS FAILED TO PRODUCE THEM IN RESPONSE TO THE CAUSE NOTICE. V) THE FINDINGS THAT THE INVESTING COMPANIES WHI CH SUBSCRIBED TO THE SHARES WERE BORNE ON THE FILE OF THE ROC AND THAT THE MONIES HAVE COME THROUGH A/C PAYEE CHEQUES IS AT BEST, NEUTRAL. MERE PAYMENT BY CHEQUES IS NOT SACROSANCT AS WOULD NOT, MAKE A NON -GENUINE TRANSACTION AS GENUINE. VI) BONAFIDE AND GENUINENESS OF THE TRANSACTIONS IS THE MAIN ISSUE AND IN THIS REGARD, THE ASSESSEE COMPANY HAS FAILED MISERABLY. VII) SCRUTINY HAS REVEALED THE CAMOUFLAGE ADOPTED BY THE ASSESSEE AND EXPOSED THE TRUE NATURE OF THE TRANSACTIONS. VIII) ONUS IS ON THE ASSE SSEE TO PROVE THE IDENTITY OF SHARE APPLICANTS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS APPEARING IN ITS BOOKS OF SALE WHICH IS NOT PROVED IN THIS CASE. IN FACT, GENUINENESS OF THE TRANSACTIONS HAS NOT BEEN ESTABLISHED IN SPITE OF REPEAT ED OPPORTUNITIES. IX) THERE IS ENOUGH MATERIAL ON RECORD TO DOUBT THE VERACITY OF THE A PERUSAL OF THE ABOVE DEMONSTRATES THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. ON THE LEGAL POSITION, WE FIND THAT THE VARIOUS COURTS OF LAW UNDER SIMILAR CIRCUMSTANCES HAVE HELD AS FOLLOWS: - III VS. VEERPRABHU MARKETING LIMITED [2016] 73 TAXMANN.COM 149 IN THIS CASE THE HONOURABLE CALCUTTA HIGH COURT EXPRESSED THE FOLLOWING WE ARE IN AGREEMENT WITH THE VIEWS OF THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE - REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSES SING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. 2, KOLKATA VS. SALASAR STOCK BROKING LIMITED (ITAT NO. 264 OF 2016) : (CALCUTTA) IN THIS CASE, THE HONORABLE HIGH COURT OBSERVED THAT THE LD. ITAT, KOLKATA WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION U/S 153A OF THE I.T. ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH & SEIZURE DID NOT DISCLOSE ANY INCRIMINATING MATERIAL. IN TAKING THE AFORESAID VIEW, THE LD. ITAT RELIED UPON THE JUDGMENTS OF DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA IN ITA NO. 707/2014 DATED 28.08.2014 . THE COURT ALSO OBSERVED THAT MORE OR LESS AN IDENTICAL VIEW HAS BEEN TAKEN BY IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. III) THERE IS NO JUSTIFICATION ON RECORD WHATSOEVER AS TO WHETHER THE COMPANY'S CREDENTIALS COMMANDED A HUGE SHARE PREMIUM, PARTICULARLY WH EN IV) SUMMONS U/S 131 TO SUCH PERSONS I COMPANY HAVE NOT BEEN ADEQUATELY RESPONDED AND THE ASSESSEE HAS FAILED TO PRODUCE THEM IN RESPONSE TO THE CH SUBSCRIBED TO THE SHARES WERE BORNE ON THE FILE OF THE ROC AND THAT THE MONIES HAVE COME THROUGH A/C PAYEE CHEQUES IS AT BEST, NEUTRAL. MERE PAYMENT BY CHEQUES IS NOT SACROSANCT GENUINENESS OF THE TRANSACTIONS IS THE MAIN ISSUE AND IN THIS VII) SCRUTINY HAS REVEALED THE CAMOUFLAGE ADOPTED BY THE ASSESSEE AND SSEE TO PROVE THE IDENTITY OF SHARE APPLICANTS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS APPEARING IN ITS BOOKS OF SALE WHICH IS NOT PROVED IN THIS CASE. IN FACT, GENUINENESS OF THE ED OPPORTUNITIES. IX) THERE IS ENOUGH MATERIAL ON RECORD TO DOUBT THE VERACITY OF THE A PERUSAL OF THE ABOVE DEMONSTRATES THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. ON THE LEGAL POSITION, WE FIND THAT THE VARIOUS COURTS OF LAW UNDER SIMILAR III VS. VEERPRABHU MARKETING LIMITED [2016] 73 TAXMANN.COM 149 EXPRESSED THE FOLLOWING WE ARE IN AGREEMENT WITH THE VIEWS OF THE KARNATAKA HIGH COURT THAT REQUISITE BEFORE POWER COULD HAVE BEEN SING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED (ITAT NO. 264 OF 2016) IN THIS CASE, THE HONORABLE HIGH COURT OBSERVED THAT THE LD. ITAT, KOLKATA WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION U/S 153A OF THE I.T. ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH & SEIZURE DID NOT MATERIAL. IN TAKING THE AFORESAID VIEW, THE LD. ITAT RELIED UPON THE JUDGMENTS OF DELHI HIGH COURT IN THE CASE OF CIT(A) VS. . THE COURT ALSO OBSERVED THAT MORE OR LESS AN IDENTICAL VIEW HAS BEEN TAKEN BY THIS BENCH IN ITA NO. 661/2008 IN THE CASE OF CIT VS. VEERPRABHU MARKETING LIMITED. CONSIDERING THE ABOVE FACTS, THE HONORABLE HIGH COURT DID NOT ADMIT THE APPEAL FILED BY THE DEPARTMENT. THE A BENCH OF THE DELHI ITAT, RECENTLY IN THE CASE OF ANURAG DA IN ITA NOS. 5395 & 5396/DEL/2017; ASSESSMENT YEARS: 2006 15/02/2018, UNDER IDENTICAL CIRCUMSTANCES HELD AS FOLLOWS: 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT MATERIAL PLACED ON RECORD AND THE FINDING GI VIDE GROUND NO.5 BY THE ASSESSEE THAT THE ADDITIONS MADE IN THIS YEAR ARE BEYOND THE SCOPE OF ASSESSMENT U/S.153A, AS NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH FOR THE IMPUG FINALITY AND WAS NOT ABATED IN TERMS OF 2ND PROVISO TO SECTION 153A. AS STATED ABOVE, THE ORIGINAL RETURN OF INCOME WAS FILED IN JULY, 2006 AND SAID RETURN WAS DULY ACCEPTED AND PROCESSED U/S. 143(1) VID U/S. 143(2) WAS ISSUED THEREAFTER OR ANY OTHER PROCEEDINGS HAVE BEEN COMMENCED TO DISTURB SAID RETURN OF INCOME, ACCORDINGLY, IT HAD ATTAINED FINALITY MUCH PRIOR TO THE DATE OF SEARCH WHICH WAS ON 20.01.2012. 153A THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006 ACCORDINGLY, HAS TO BE RECKONED AS UNABATED ASSESSMENT. UNDER THE JURISDICTION OF HON'BLE DELHI HIGH COURT, THE LAW IS WELL SETTLED THAT IN CAS THE ADDITIONS WHICH CAN BE ROPED BE WITH REGARD TO ANY INCRIMINATING MATERIAL OR EVIDENCE UNEARTHED OR FOUND DURING THE COURSE OF SEARCH. IF NO INCRIMINATING MATERIAL HAS BEEN FOU SEARCH, THEN NO ADDITION CAN BE MADE IN THE ASSESSMENT YEARS WHERE ASSESSMENTS HAD ATTAINED FINALITY. THE RELEVANT OBSERVATIONS AND THE RATIO LAID DOWN WOULD BE DISCUSSED IN THE LATER PART OF THIS ORDER. 15. NOW COMING TO THE RATIO OF ALL, IN THE CASE OF KABUL CHAWALA (SUPRA), THE HON'BLE COURT AFTER DISCUSSING THE ISSUE THREADBARE AND ANALYSING THE VARIOUS JUDGMENTS OF DIFFERENT HIGH COURTS LAID DOWN THE FOLLOWING LEGAL PRO U/S. 153A(1) WHICH ARE AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A (1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGA 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 PR 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 EXERC 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 T 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 STRIC BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST 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 R NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' 6 ITA NO. 661/2008 IN THE CASE OF CIT VS. VEERPRABHU MARKETING LIMITED. CONSIDERING THE ABOVE FACTS, THE HONORABLE HIGH COURT DID NOT ADMIT THE APPEAL FILED BY THE DEPARTMENT. THE A BENCH OF THE DELHI ITAT, RECENTLY IN THE CASE OF ANURAG DA IN ITA NOS. 5395 & 5396/DEL/2017; ASSESSMENT YEARS: 2006 - 07 & 2007 15/02/2018, UNDER IDENTICAL CIRCUMSTANCES HELD AS FOLLOWS: - 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT MATERIAL PLACED ON RECORD AND THE FINDING GI VEN IN THE IMPUGNED ORDER WITH RESPECT TO LEGAL ISSUE RAISED VIDE GROUND NO.5 BY THE ASSESSEE THAT THE ADDITIONS MADE IN THIS YEAR ARE BEYOND THE SCOPE OF ASSESSMENT U/S.153A, AS NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH FOR THE IMPUG NED ASSESSMENT YEAR; AND THE ASSESSMENT HAD ATTAINED FINALITY AND WAS NOT ABATED IN TERMS OF 2ND PROVISO TO SECTION 153A. AS STATED ABOVE, THE ORIGINAL RETURN OF INCOME WAS FILED IN JULY, 2006 AND SAID RETURN WAS DULY ACCEPTED AND PROCESSED U/S. 143(1) VID E INTIMATION DATED 25.05.2007. SINCE NO NOTICE U/S. 143(2) WAS ISSUED THEREAFTER OR ANY OTHER PROCEEDINGS HAVE BEEN COMMENCED TO DISTURB SAID RETURN OF INCOME, ACCORDINGLY, IT HAD ATTAINED FINALITY MUCH PRIOR TO THE DATE OF SEARCH WHICH WAS ON 20.01.2012. HENCE IN TERMS OF 2ND PROVISO TO SECTION 153A THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006 - 07 WAS NOT PENDING AND ACCORDINGLY, HAS TO BE RECKONED AS UNABATED ASSESSMENT. UNDER THE JURISDICTION OF HON'BLE DELHI HIGH COURT, THE LAW IS WELL SETTLED THAT IN CAS E OF UNABATED ASSESSMENT, THE ADDITIONS WHICH CAN BE ROPED - IN, IN THE ASSESSMENTS FRAMED U/S.153A, WOULD ONLY BE WITH REGARD TO ANY INCRIMINATING MATERIAL OR EVIDENCE UNEARTHED OR FOUND DURING THE COURSE OF SEARCH. IF NO INCRIMINATING MATERIAL HAS BEEN FOU ND DURING THE COURSE OF SEARCH, THEN NO ADDITION CAN BE MADE IN THE ASSESSMENT YEARS WHERE ASSESSMENTS HAD ATTAINED FINALITY. THE RELEVANT OBSERVATIONS AND THE RATIO LAID DOWN WOULD BE DISCUSSED IN THE LATER PART OF THIS ORDER. 15. NOW COMING TO THE RATIO S LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT, FIRST OF ALL, IN THE CASE OF KABUL CHAWALA (SUPRA), THE HON'BLE COURT AFTER DISCUSSING THE ISSUE THREADBARE AND ANALYSING THE VARIOUS JUDGMENTS OF DIFFERENT HIGH COURTS LAID DOWN THE FOLLOWING LEGAL PRO POSITION IN TERMS OF SCOPE OF ADDITION WHICH CAN BE MADE U/S. 153A(1) WHICH ARE AS UNDER: - 37. ON A CONSPECTUS OF SECTION 153A (1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGA 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 PR EVIOUS 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 EXERC ISE 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 T HE 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 STRIC 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 R NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. ITA NO. 661/2008 IN THE CASE OF CIT VS. VEERPRABHU MARKETING LIMITED. CONSIDERING THE ABOVE FACTS, THE HONORABLE HIGH COURT DID NOT ADMIT THE THE A BENCH OF THE DELHI ITAT, RECENTLY IN THE CASE OF ANURAG DA LMIA VS. DCIT 07 & 2007 -08, DT. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT MATERIAL PLACED ON VEN IN THE IMPUGNED ORDER WITH RESPECT TO LEGAL ISSUE RAISED VIDE GROUND NO.5 BY THE ASSESSEE THAT THE ADDITIONS MADE IN THIS YEAR ARE BEYOND THE SCOPE OF ASSESSMENT U/S.153A, AS NO INCRIMINATING MATERIAL WAS FOUND DURING THE NED ASSESSMENT YEAR; AND THE ASSESSMENT HAD ATTAINED FINALITY AND WAS NOT ABATED IN TERMS OF 2ND PROVISO TO SECTION 153A. AS STATED ABOVE, THE ORIGINAL RETURN OF INCOME WAS FILED IN JULY, 2006 AND SAID RETURN WAS DULY E INTIMATION DATED 25.05.2007. SINCE NO NOTICE U/S. 143(2) WAS ISSUED THEREAFTER OR ANY OTHER PROCEEDINGS HAVE BEEN COMMENCED TO DISTURB SAID RETURN OF INCOME, ACCORDINGLY, IT HAD ATTAINED FINALITY MUCH PRIOR TO THE HENCE IN TERMS OF 2ND PROVISO TO SECTION 07 WAS NOT PENDING AND ACCORDINGLY, HAS TO BE RECKONED AS UNABATED ASSESSMENT. UNDER THE JURISDICTION OF E OF UNABATED ASSESSMENT, IN, IN THE ASSESSMENTS FRAMED U/S.153A, WOULD ONLY BE WITH REGARD TO ANY INCRIMINATING MATERIAL OR EVIDENCE UNEARTHED OR FOUND DURING ND DURING THE COURSE OF SEARCH, THEN NO ADDITION CAN BE MADE IN THE ASSESSMENT YEARS WHERE ASSESSMENTS HAD ATTAINED FINALITY. THE RELEVANT OBSERVATIONS AND THE RATIO LAID DOWN WOULD BE S LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT, FIRST OF ALL, IN THE CASE OF KABUL CHAWALA (SUPRA), THE HON'BLE COURT AFTER DISCUSSING THE ISSUE THREADBARE AND ANALYSING THE VARIOUS JUDGMENTS OF DIFFERENT HIGH COURTS LAID POSITION IN TERMS OF SCOPE OF ADDITION WHICH CAN BE MADE 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 LEGA L 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 EVIOUS YEAR RELEVANT TO THE AY IN 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. ISE 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 HE 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 IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRIC TLY MADE ON THE 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 R ELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT '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, TH 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 RECO 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 INCO ME 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. THIS JUDGMENT OF THE HON'BLE DELHI HIGH COURT HAS BEEN FOLLOWED IN SEVERAL JUDGMENTS NOT ONLY BY THE HON'BLE DELHI HIGH COURT BUT ALSO BY OTHER HON'BLE HIGH COURT LIKE, PR. CIT VS. SOMAYA CONSTRUCTION PVT. LTD. 387 ITR 529 (GUJ), CIT VS. IBC KNOWLEDGE PARK GURINDER SINGH BAWA REPORTED IN 386 ITR 483. DELHI HIGH COURT IN PRINCIPLE AFTER DISCUSSING AND ANALYZING CATENA OF KUMAR BHATIA (SUPRA) AND DAYAWANTI GUPTA. THE HON'BLE HIGHCOURT OBSERVED AND HELD AS UNDER:- 62. SUBSEQUENTLY, IN PRINCIPAL COMMISSIONER OF INCOME TAX {SUPRA), ANOTHER BENCH OF THE GUJARAT HIGH COUR FOLLOWING ITS EARLIER DECISION IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION P. LTD. {SUPRA) AND OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN CIT V. IBC {SUPRA) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) AND HELD THAT THERE HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CAL COURT IN CIT- 2 V. SALASAR STOCK BROKING LTD. {SUPRA), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). IN CIT V. GURINDER SINGH BAWA {SUPRA), THE BOMBAY HIGH COURT HELD THAT: 6...ONCE AN ASSESSMENT HAS ATTAINED FINALITY FOR A PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS. 63. EVEN THIS COURT HAS IN CIT V MAHESH KUMAR GUPTA {SUPRA) AND THE PR. COMMISSIONER OF INCOME TAX KABUL CHAWLA (SUPRA). THE DECISION OF THIS COURT IN PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. {SUPRA) WHICH WAS REFERRED TO IN KABUL CHAWLA (SUPRA) HAS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7 DE CEMBER, 2015. THE DEPARTMENT HAD FILED SPECIAL LEAVE PETITION BEFORE THE HONBLE APEX COURT AGAINST THE ABOVE JUDGMENT OF THE DELHI HIGH COURT MILLS P. LTD: S.L.P (C) NO THE HONBLE APEX COURT DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT THE RELEVANT PARA AS MENTIONED IN THE ITR IS REPRODUCED AS UNDER. THEIR LORDSHIPS MADAN B.LOKUR AND S.A.BOBDE JJ DISMISSED THE DEPARTMENTS SPECIAL LEAVE PETITION AGAINST THE JUDGM I.T.A NO 369 OF 2015, WHEREBY THE HIGH COURT HELD THAT NO SUBSTANTIAL QUESTION OF LAW AROSE SINCE THERE WAS A FACTUAL FINDING THAT NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUED WAS FOUND DURING 7 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, TH E 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 RECO RD 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 ME 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. THIS JUDGMENT OF THE HON'BLE DELHI HIGH COURT HAS BEEN FOLLOWED IN SEVERAL JUDGMENTS NOT ONLY BY THE HON'BLE DELHI HIGH COURT BUT ALSO BY OTHER HON'BLE HIGH PR. CIT VS. SOMAYA CONSTRUCTION PVT. LTD. 387 ITR 529 (GUJ), CIT VS. IBC KNOWLEDGE PARK PVT. LTD. 385 ITR 346 (KAR) AND CIT VS. GURINDER SINGH BAWA REPORTED IN 386 ITR 483. IN THE LATEST JUDGMENT THE HON'BLE DELHI HIGH COURT IN PR. CIT VS. MEETA GUTGUTIA, THEIR LORDSHIPS REITERATED THE SAME PRINCIPLE AFTER DISCUSSING AND ANALYZING CATENA OF DECISIONS INCLUDING THAT OF ANIL KUMAR BHATIA (SUPRA) AND DAYAWANTI GUPTA. THE HON'BLE HIGHCOURT OBSERVED AND 62. SUBSEQUENTLY, IN PRINCIPAL COMMISSIONER OF INCOME TAX - 1 V. DEVANGI ALIAS RUPA {SUPRA), ANOTHER BENCH OF THE GUJARAT HIGH COUR T REITERATED THE ABOVE LEGAL POSITION FOLLOWING ITS EARLIER DECISION IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION P. LTD. {SUPRA) AND OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS KARNATAKA HIGH COURT IS CONCERNED, IT HAS IN CIT V. IBC KNOWLEDGE PARK P. LTD. {SUPRA) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) AND HELD THAT THERE HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CAL 2 V. SALASAR STOCK BROKING LTD. {SUPRA), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). IN CIT V. GURINDER SINGH BAWA {SUPRA), THE BOMBAY HIGH COURT HELD THAT: 6...ONCE AN ASSESSMENT HAS ATTAINED FINALITY FOR A PARTICULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED IN THE COURSE OF SEARCH OR DURING PROCEEDINGS UNDER SECTION 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS. 63. EVEN THIS COURT HAS IN CIT V MAHESH KUMAR GUPTA {SUPRA) AND THE PR. COMMISSIONER OF INCOME TAX - 9 V. RAM AVTAR VERMA {SUPRA) FOLLOWED THE DECISION KABUL CHAWLA (SUPRA). THE DECISION OF THIS COURT IN PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. {SUPRA) WHICH WAS REFERRED TO IN KABUL CHAWLA (SUPRA) HAS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7 CEMBER, 2015. THE DEPARTMENT HAD FILED SPECIAL LEAVE PETITION BEFORE THE HONBLE APEX COURT AGAINST THE ABOVE JUDGMENT OF THE DELHI HIGH COURT . (PR CIT V KURULE PAPER MILLS P. LTD: S.L.P (C) NO -34554 OF 2015[ 2016] 380ITR (ST) 64- ED).. APEX COURT DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT THE RELEVANT PARA AS MENTIONED IN THE ITR IS REPRODUCED AS UNDER. THEIR LORDSHIPS MADAN B.LOKUR AND S.A.BOBDE JJ DISMISSED THE DEPARTMENTS SPECIAL LEAVE PETITION AGAINST THE JUDGM ENT DATED JULY 06,2015 OF THE DELHI HIGH COURT IN I.T.A NO 369 OF 2015, WHEREBY THE HIGH COURT HELD THAT NO SUBSTANTIAL QUESTION OF SINCE THERE WAS A FACTUAL FINDING THAT NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUED WAS FOUND DURING THE COURSE OF SEARCH AND THAT IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE 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. E 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 RD 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 ME 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. THIS JUDGMENT OF THE HON'BLE DELHI HIGH COURT HAS BEEN FOLLOWED IN SEVERAL JUDGMENTS NOT ONLY BY THE HON'BLE DELHI HIGH COURT BUT ALSO BY OTHER HON'BLE HIGH PR. CIT VS. SOMAYA CONSTRUCTION PVT. LTD. 387 ITR 529 (GUJ), CIT VS. IN THE LATEST JUDGMENT THE HON'BLE THEIR LORDSHIPS REITERATED THE SAME DECISIONS INCLUDING THAT OF ANIL KUMAR BHATIA (SUPRA) AND DAYAWANTI GUPTA. THE HON'BLE HIGHCOURT OBSERVED AND 1 V. DEVANGI ALIAS RUPA T REITERATED THE ABOVE LEGAL POSITION FOLLOWING ITS EARLIER DECISION IN PRINCIPAL COMMISSIONER OF INCOME TAX V. SAUMYA CONSTRUCTION P. LTD. {SUPRA) AND OF THIS COURT IN KABUL CHAWLA (SUPRA). AS FAR AS KNOWLEDGE PARK P. LTD. {SUPRA) FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA) AND HELD THAT THERE HAD TO BE INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS WERE SOUGHT TO BE MADE PURSUANT TO SEARCH AND SEIZURE OPERATION. THE CAL CUTTA HIGH 2 V. SALASAR STOCK BROKING LTD. {SUPRA), TOO, FOLLOWED THE DECISION OF THIS COURT IN KABUL CHAWLA (SUPRA). IN CIT V. GURINDER SINGH BAWA {SUPRA), THE BOMBAY PARTICULAR YEAR, I.E., IT IS NOT PENDING THEN THE SAME CANNOT BE SUBJECT TO TAX IN PROCEEDINGS UNDER SECTION 153A OF THE ACT. THIS OF COURSE WOULD NOT APPLY IF INCRIMINATING MATERIALS ARE GATHERED IN THE 153A OF THE ACT WHICH ARE CONTRARY TO AND/OR NOT DISCLOSED DURING THE REGULAR ASSESSMENT PROCEEDINGS. 63. EVEN THIS COURT HAS IN CIT V MAHESH KUMAR GUPTA {SUPRA) AND THE PR. 9 V. RAM AVTAR VERMA {SUPRA) FOLLOWED THE DECISION IN KABUL CHAWLA (SUPRA). THE DECISION OF THIS COURT IN PR. COMMISSIONER OF INCOME TAX V. KURELE PAPER MILLS P. LTD. {SUPRA) WHICH WAS REFERRED TO IN KABUL CHAWLA (SUPRA) HAS BEEN AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP ON 7 TH THE DEPARTMENT HAD FILED SPECIAL LEAVE PETITION BEFORE THE HONBLE APEX COURT (PR CIT V KURULE PAPER ED).. APEX COURT DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT . THEIR LORDSHIPS MADAN B.LOKUR AND S.A.BOBDE JJ DISMISSED THE DEPARTMENTS SPECIAL ENT DATED JULY 06,2015 OF THE DELHI HIGH COURT IN I.T.A NO 369 OF 2015, WHEREBY THE HIGH COURT HELD THAT NO SUBSTANTIAL QUESTION OF SINCE THERE WAS A FACTUAL FINDING THAT NO INCRIMINATING EVIDENCE THE COURSE OF SEARCH AND THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INVOKING SECTION 68 OF THE ACT FOR THE PURPOSE OF MAKING ADDITIONS ON ACCOUNT OF SHARE CAPITAL 9. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE OF TH E CASE ON HAND, WE FIND THAT THE ONLY ADDITION MADE IS OF SHARE APPLICATION RECEIVED U/S 68 OF THE ACT AND ADDITION OF COMMISSION PAID ALLEGEDLY FOR THE SHARE APPLICATION MONEY AND FINALLY A DISALLOWANCE U/S 14A OF THE ACT. NO INCRIMINATING MATERIAL HAS BE EN FOUND DURING THE COURSE OF SEARCH. 12. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) DT. 24/02/2020 HAS HELD AS UNDER: THE QUESTION IS WHETHER THE ASSESSEE HAD UNEXPLAINED CASH CREDIT IN THEIR BOOKS WHICH COULD BE CHARGED TO INCOME TAX IN THE PREVIOUS YEAR IN QUESTION ? WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT QUESTIONS OF FACT AND E VIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : '10. COMING TO THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE ASSESSEE. THE ALLEGED STATEMENTS THAT W COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF THESE CHAI N OF COMPANIES. THERE IS NO EVIDENCE THAT ANY CASH WAS DEPOSITED BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE BANK ACCOUNT OF A THIRD PARTY WAS FROM THE ASSESS OPPORTUNITY TO CROSS ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING MATERIAL. 10.2. THUS, NONE O OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON INCRIMINATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS FOLLOWS: ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSORS ON THIS LEGAL IS DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION MADE BY AO IN THE OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON 8 THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INVOKING SECTION 68 OF THE ACT FOR THE PURPOSE OF MAKING ADDITIONS ON ACCOUNT OF SHARE CAPITAL APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE - LAW TO THE FACTS E CASE ON HAND, WE FIND THAT THE ONLY ADDITION MADE IS OF SHARE APPLICATION RECEIVED U/S 68 OF THE ACT AND ADDITION OF COMMISSION PAID ALLEGEDLY FOR THE SHARE APPLICATION MONEY AND FINALLY A DISALLOWANCE U/S 14A OF THE ACT. NO INCRIMINATING EN FOUND DURING THE COURSE OF SEARCH. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) HAS HELD AS UNDER: - THE QUESTION IS WHETHER THE ASSESSEE HAD UNEXPLAINED CASH CREDIT IN THEIR BOOKS WHICH COULD BE CHARGED TO INCOME TAX IN THE PREVIOUS YEAR IN QUESTION ? WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT VIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : '10. COMING TO THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE ASSESSEE. THE ALLEGED STATEMENTS THAT W ERE RECORDED FROM DIRECTORS OF THESE COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF N OF COMPANIES. THERE IS NO EVIDENCE THAT ANY CASH WAS DEPOSITED BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE BANK ACCOUNT OF A THIRD PARTY WAS FROM THE ASSESS EE COMPANY. NO OPPORTUNITY TO CROSS - EXAMINE ANY THESE PARTIES WAS PROVIDED TO THE ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING MATERIAL. 10.2. THUS, NONE O F THESE MATERIAL GATHERED BY THE ASSESSING OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON INCRIMINATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSORS ON THIS LEGAL IS SUE. I FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION MADE BY AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) ARE NOT BASED OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INVOKING SECTION 68 OF THE ACT FOR THE LAW TO THE FACTS E CASE ON HAND, WE FIND THAT THE ONLY ADDITION MADE IS OF SHARE APPLICATION RECEIVED U/S 68 OF THE ACT AND ADDITION OF COMMISSION PAID ALLEGEDLY FOR THE SHARE APPLICATION MONEY AND FINALLY A DISALLOWANCE U/S 14A OF THE ACT. NO INCRIMINATING PR. CIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) , JUDGMENT THE QUESTION IS WHETHER THE ASSESSEE HAD UNEXPLAINED CASH CREDIT IN THEIR BOOKS WHICH WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT VIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : '10. COMING TO THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE ERE RECORDED FROM DIRECTORS OF THESE COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF N OF COMPANIES. THERE IS NO EVIDENCE THAT ANY CASH WAS DEPOSITED BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE EE COMPANY. NO EXAMINE ANY THESE PARTIES WAS PROVIDED TO THE ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING F THESE MATERIAL GATHERED BY THE ASSESSING OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMINATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY SUE. I FIND FROM THE ASSESSMENT ORDER THAT DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE IT ACT , 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION ASSESSMENT ORDER PASSED U/S 153A/143(3) ARE NOT BASED OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEARCH, NO ASSESSMENT FOR THIS YEAR WAS KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE LIGHT OF CBDT'S DE AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR ISSUE IN THE CASE OF OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE'S AP INCLINED TO ADJUDICATE APPEAL ON GROUND NO. 2 ON MERIT.' THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS BEEN MADE. WE CANNOT REOPEN THE FACTS ANY MORE IN THIS JURI LAW FAR LESS ANY SUBSTANTIAL QUESTION OF LAW IS INVOLVED. 13. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF REPORTED IN [2016] 73 TAXMANN.COM 149 (CALCUTTA) 5. HE RELIED UPON THE FOLLOWING VIEWS EXPRESSED IN PARAGRAPH 50 OF THE JUDGMENT IN THE CASE OF CIT V. IBC KNOWLEDGE PARK (P.) LTD. 'MATERIALS SUCH AS BOOKS OF ACCOUNT, DOCUMENTS OR VALUABLE SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNI TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER SECTIO N 153C. ON RECEIPT OF THE AFORESAID MATERIAL, THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN INFERENCE OF AN UNDISCLOSED INCOME IS DRAWN DURING THE COURSE OF ENQUIRY, DURING SEARCH OR DURING POST - THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED INCOME IS A SINE QUA NON 6. MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE BASIS OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER S REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. ADDED THAT THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF POWER WAS BAD. ADMITTEDLY, THERE WAS SEARCH AS ALSO REQUISITION. 7. WITH RESPECT TO THE SECOND SUBMISSION ADVANCED BY MR. JAIN, WE CALLED UPON MR. NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER 9 THE DATE OF SEARCH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE LIGHT OF CBDT'S DE CISION OF NOT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR ISSUE IN THE CASE OF PR CIT VS KURELE PAPER MILLS PVT. LTD : SLP (C) OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE'S AP PEAL ON GROUND NO 1 IS ALLOWED AND AS SUCH I AM NOT INCLINED TO ADJUDICATE APPEAL ON GROUND NO. 2 ON MERIT.' THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS BEEN MADE. WE CANNOT REOPEN THE FACTS ANY MORE IN THIS JURI SDICTION. NO QUESTIONS OF LAW FAR LESS ANY SUBSTANTIAL QUESTION OF LAW IS INVOLVED. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VEERPRABHU MARKETING LTD. REPORTED IN [2016] 73 TAXMANN.COM 149 (CALCUTTA) , HELD AS FOLLOWS:- HE RELIED UPON THE FOLLOWING VIEWS EXPRESSED IN PARAGRAPH 50 OF THE JUDGMENT IN THE CASE OF CIT V. IBC KNOWLEDGE PARK (P.) LTD. [2016] 69 TAXMANN.COM 108 (KAR.) 'MATERIALS SUCH AS BOOKS OF ACCOUNT, DOCUMENTS OR VALUABLE ASSETS FOUND DURING A SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNI TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER N 153C. ON RECEIPT OF THE AFORESAID MATERIAL, THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN AN UNDISCLOSED INCOME IS DRAWN DURING THE COURSE OF ENQUIRY, DURING - SEARCH ENQUIRY, SECTION 153C WOULD HAVE NO APPLICATION. THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED INCOME IS A SINE QUA NON FOR INVOCATION OF SECTION 153C OF THE ACT.' MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE BASIS OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER S ECTION 132A. THERE IS NO REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. ADDED THAT THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF POWER WAS BAD. ADMITTEDLY, THERE WAS SEARCH AS ALSO REQUISITION. RESPECT TO THE SECOND SUBMISSION ADVANCED BY MR. JAIN, WE CALLED UPON MR. NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. PENDING. THEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE CISION OF NOT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR : SLP (C) NO. 34554 OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD PEAL ON GROUND NO 1 IS ALLOWED AND AS SUCH I AM NOT THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS SDICTION. NO QUESTIONS OF CIT VS. VEERPRABHU MARKETING LTD. HE RELIED UPON THE FOLLOWING VIEWS EXPRESSED IN PARAGRAPH 50 OF THE JUDGMENT IN [2016] 69 TAXMANN.COM 108 (KAR.) :- ASSETS FOUND DURING A SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNI CATED TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER N 153C. ON RECEIPT OF THE AFORESAID MATERIAL, THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN AN UNDISCLOSED INCOME IS DRAWN DURING THE COURSE OF ENQUIRY, DURING SEARCH ENQUIRY, SECTION 153C WOULD HAVE NO APPLICATION. THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE -APPELLANT SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE ECTION 132A. THERE IS NO REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. HE, HOWEVER, ADDED THAT THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF RESPECT TO THE SECOND SUBMISSION ADVANCED BY MR. JAIN, WE CALLED UPON MR. NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR MAY BE RELATABLE TO T HE ASSESSEE. MR. INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE ASSESSEE. 8. WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL UNDER SECTION 153C READ WITH SECTION 153A. 9. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT S DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. 10. WE FIND NO IN FIRMITY IN THE AFORESAID ACT OF THE LEARNED TRIBUNAL. THE APPEAL IS, THEREFORE, DISMISSED. 14. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF TAX VS. M/S. SALASAR STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, JUDGMENT DT. 24 TH AUGUST, 2016, THE CASE OF CIT VS. VEERPRABHU MARKETING LTD. (SUPRA) REVENUE. 15. T HIS BENCH OF THE TRIBUNAL IN THE CASE OF [2020] 116 TAXMANN.COM 412 (KOLKATA 12. WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE CASE OF KABUL CHAWLA (SUPRA) CASES OF CIT V. ANIL KUMAR BHATIA 453/[2013] 352 ITR 493 (DELHI) TAXMANN.COM 227/211 TAXMAN 61 (DELHI) TAXMANN.COM 200/215 TAXMAN 298 (DELHI) DY. CIT [2014] 49 TAXMANN.COM 98 (KAR.) TAXMANN.COM 465/[2015] 229 TAXMAN 555 (DELHI) [2013] 36 TAXMANN.COM 523/219 TAX LTD. [2014] 49 TAXMANN.COM 172 (BOM.) CORPORATION (NHAVA SHEVA) LTD. ITR 645 (BOM.) AND ALL CARGO GLOBAL LOGISTICS LTD. V. DY. CIT TAXMANN.COM 103/137 ITD 287 (MUM.) (SB) AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CHAWLA (SUPRA) WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 ITR (ST.) 4 (SC). 13. WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. SALASAR STOCK BROKING LTD. [G.A. NO. 1929 OF 2016, DATED 24 AFORESAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED 10 DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR HE ASSESSEE. MR. NIZAMUDDIN AS UNABLE TO SHOW THAT ANY SUCH INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE- REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT S DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. FIRMITY IN THE AFORESAID ACT OF THE LEARNED TRIBUNAL. THE APPEAL IS, THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, AUGUST, 2016, UNDER IDENTICAL CIRCUMSTANCES, FOLLOWED THE JUDGMENT IN CIT VS. VEERPRABHU MARKETING LTD. (SUPRA) AND DISMISSED THE APPEAL OF THE HIS BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. MAJESTIC COMMERCIAL (P) LTD. [2020] 116 TAXMANN.COM 412 (KOLKATA -TRIB.), HAS HELD AS FOLLOWS:- WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE CASE OF KABUL CHAWLA (SUPRA) HAD JUDICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE CASES OF CIT V. ANIL KUMAR BHATIA [2012] 24 TAXMANN.COM 98/211 TAXMAN 453/[2013] 352 ITR 493 (DELHI) ; CIT V. CHETAN DAS LACHMAN DAS TAXMANN.COM 227/211 TAXMAN 61 (DELHI) ; MADUGULA VENU V. DIT TAXMANN.COM 200/215 TAXMAN 298 (DELHI) ; CANARA HOUSING DEVELOPMENT CO. V. [2014] 49 TAXMANN.COM 98 (KAR.) ; FILATEX INDIA LTD. V. CIT TAXMANN.COM 465/[2015] 229 TAXMAN 555 (DELHI) ; JAI STEEL (INDIA) V. ASSTT. CIT [2013] 36 TAXMANN.COM 523/219 TAX MAN 223 (DELHI) ; CIT V. MURLI AGRO PRODUCTS [2014] 49 TAXMANN.COM 172 (BOM.) ; CIT V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 AND ALL CARGO GLOBAL LOGISTICS LTD. V. DY. CIT TAXMANN.COM 103/137 ITD 287 (MUM.) (SB) . WE ALSO FIND THAT REVENUE'S SLP AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CHAWLA (SUPRA) WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. SALASAR STOCK BROKING LTD. [G.A. NO. 1929 OF 2016, DATED 24 -8-2016 ] ENDORSED THE AFORESAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR NIZAMUDDIN AS UNABLE TO SHOW THAT ANY SUCH INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT S UCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. FIRMITY IN THE AFORESAID ACT OF THE LEARNED TRIBUNAL. THE APPEAL IS, PRINCIPAL COMMISSIONER OF INCOME STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, UNDER IDENTICAL CIRCUMSTANCES, FOLLOWED THE JUDGMENT IN AND DISMISSED THE APPEAL OF THE ACIT VS. MAJESTIC COMMERCIAL (P) LTD. WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE HAD JUDICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE [2012] 24 TAXMANN.COM 98/211 TAXMAN ; CIT V. CHETAN DAS LACHMAN DAS [2012] 25 ; MADUGULA VENU V. DIT [2013] 29 ; CANARA HOUSING DEVELOPMENT CO. V. ; FILATEX INDIA LTD. V. CIT [2014] 49 ; JAI STEEL (INDIA) V. ASSTT. CIT ; CIT V. MURLI AGRO PRODUCTS ; CIT V. CONTINENTAL WAREHOUSING [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 AND ALL CARGO GLOBAL LOGISTICS LTD. V. DY. CIT [2012] 23 . WE ALSO FIND THAT REVENUE'S SLP AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. ] ENDORSED THE AFORESAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. 73 TAXMANN.COM 149/388 ITR 574 (CAL.) 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE REGISTERED AS ITA NO.1775/KOL/2012 AND ALLOWED A CROSS CO-3 0/KOL/2013 BOTH PERTAINING TO THE ASSESSMENT YEAR 2005 TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DIS VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE AGGRIEVED REVENUE HAS COME UP IN APPEAL. MR. BAGARIA, LEARNED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU MARKETING LTD.] WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED 'WE ARE IN AGREEMENT WITH THE INCRIMINATING MATERIAL IS A PRE UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES.' IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, THEREFORE, DISMISSED.' 14. IN HIS WRITTEN AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS OF THE HON'BLE HIGH COURTS JUSTIFYING ADDITION MADE IN THE ORDER U/S 153A FOR THE AY 2011- 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH JUDGMENT RELIED UPON BY SPECIFIC FACTS INVOLVED IN THE ASSESSEE'S CASE, WE FIND THAT NONE OF THE JUDGMENTS ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS DISTINGUISHABLE. FOR THE FOL IS NOT FURTHERED BY THE JUDGMENTS RELIED UPON BY THE LD. CIT, DR. (A) IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT [2014] 48 TAXMANN.COM ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SALE OF GOLD JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF ESTIMATE CASHIER AND STAFF WAS COLLECTED BY THE DEPARTMENT. MATERIAL FOUND IN THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD CO 11 RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. 73 TAXMANN.COM 149/388 ITR 574 (CAL.) AND HELD AS FOLLOWS: 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE REGISTERED AS ITA NO.1775/KOL/2012 AND ALLOWED A CROSS - OBJECTION REGISTERED AS 0/KOL/2013 BOTH PERTAINING TO THE ASSESSMENT YEAR 2005 - 06. THE LEARNED TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DIS CLOSE ANY INCRIMINATING MATERIAL. IN TAKING THE AFORESAID VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE AGGRIEVED REVENUE HAS COME UP IN APPEAL. MR. BAGARIA, LEARNED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU MARKETING LTD.] WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED 'WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE - REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES.' IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS OF THE HON'BLE HIGH COURTS JUSTIFYING ADDITION MADE IN THE ORDER U/S 153A FOR THE AY 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH JUDGMENT RELIED UPON BY THE LD. CIT, DR IN HIS SUBMISSIONS BUT HAVING REGARD TO THE SPECIFIC FACTS INVOLVED IN THE ASSESSEE'S CASE, WE FIND THAT NONE OF THE JUDGMENTS ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS DISTINGUISHABLE. FOR THE FOL LOWING REASONS THEREFORE, WE FIND THAT THE REVENUE'S CASE IS NOT FURTHERED BY THE JUDGMENTS RELIED UPON BY THE LD. CIT, DR. IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT [2014] 48 TAXMANN.COM 347/362 ITR 664 (KER.) , THE FACTS WERE THAT THE ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SALE OF GOLD JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF ESTIMATE SLIPS AND IN SUPPORT OF SUCH FACT CORROBORATIVE STATEMENTS OF CASHIER AND STAFF WAS COLLECTED BY THE DEPARTMENT. MATERIAL FOUND IN THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD CO IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. [2016] 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE OBJECTION REGISTERED AS 06. THE LEARNED TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH CLOSE ANY INCRIMINATING MATERIAL. IN TAKING THE AFORESAID VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE MR. BAGARIA, LEARNED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES.' IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS OF THE HON'BLE HIGH COURTS JUSTIFYING ADDITION MADE IN THE ORDER U/S 153A FOR THE AY 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH THE LD. CIT, DR IN HIS SUBMISSIONS BUT HAVING REGARD TO THE SPECIFIC FACTS INVOLVED IN THE ASSESSEE'S CASE, WE FIND THAT NONE OF THE JUDGMENTS ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS LOWING REASONS THEREFORE, WE FIND THAT THE REVENUE'S CASE IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT , THE FACTS WERE THAT THE ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SALE OF GOLD JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF SLIPS AND IN SUPPORT OF SUCH FACT CORROBORATIVE STATEMENTS OF CASHIER AND STAFF WAS COLLECTED BY THE DEPARTMENT. MATERIAL FOUND IN THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 -09. IT WAS FURTHER OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD CO LLECTED SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY INITIATED PROCEEDINGS U/S 153A FOR ALL SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT WAS WHETHER IN ABSENCE OF ANY INCRIMINATING TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE DEPARTMENT TO YEAR FOR THE SIX PREVIOUS YEARS IN ORDER TO INITIATE PROCEEDINGS UNDER SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF PRO THE FILE OF THE AO FOR FRAMING FRESH ASSESSMENTS CONSIDERING THE EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE IN PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE ADDITION IN VIEW OF THE FACT THAT NO WORTHWHILE MATERIAL OR EVIDENCE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD BY THE AO WHICH COULD PERSUADE HIM TO ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT ORDER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF WHICH THE ADDITION ON A JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT WAS NOT APPLICABLE. (B) IN THE CASE OF SMT. DAYAWANTI GUPTA 308/[2017] 245 TAXMAN 293/390 ITR 496 (DELHI) MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE STATEMENT ADMITTING ADDITIONAL INCOME WAS NOT GIVEN BY HER. SHE HAD CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF INCOME AND THAT SHE WAS A PROPRIETOR OF A THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE ASSESSEE'S SON WAS UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESSEE WAS THE OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF PRO FITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND THAT IN THE PRESENT CASE NEITHER THE ASSESSEE NOR ANY OF ITS DIRECTORS HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INC MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO 12 SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY INITIATED PROCEEDINGS U/S 153A FOR ALL SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT WAS WHETHER IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN RELATION TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE DEPARTMENT TO COLLECT INFORMATION AND EVIDENCE FOR EACH AND EVERY YEAR FOR THE SIX PREVIOUS YEARS IN ORDER TO INITIATE PROCEEDINGS UNDER SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF PRO CEEDINGS U/S 153A FOR ALL SIX YEARS BUT REMITTED THE MATTERS BACK TO THE FILE OF THE AO FOR FRAMING FRESH ASSESSMENTS CONSIDERING THE EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE IN PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE ADDITION IN VIEW OF THE FACT THAT NO WORTHWHILE MATERIAL OR EVIDENCE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD BY THE AO WHICH COULD PERSUADE HIM TO UPHOLD THE AO'S ORDER. FROM THE ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT ORDER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF WHICH THE ADDITION ON A CCOUNT OF UNEXPLAINED INVESTMENT COULD JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT WAS NOT APPLICABLE. IN THE CASE OF SMT. DAYAWANTI GUPTA V. CIT [2016] 75 TAXMANN.COM 308/[2017] 245 TAXMAN 293/390 ITR 496 (DELHI) MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE STATEMENT ADMITTING ADDITIONAL INCOME WAS NOT GIVEN BY HER. SHE HAD CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF INCOME AND THAT SHE WAS A PROPRIETOR OF A CONCERN ONLY ON PAPER. ON THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE ASSESSEE'S SON WAS RECORDED IN WHICH HE HAD ADMITTED OF EARNING UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESSEE WAS THE OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF PRO FITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND THAT IN THE PRESENT CASE NEITHER THE ASSESSEE NOR ANY OF ITS DIRECTORS HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INC MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY INITIATED PROCEEDINGS U/S 153A FOR ALL SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT MATERIAL FOUND IN RELATION TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE COLLECT INFORMATION AND EVIDENCE FOR EACH AND EVERY YEAR FOR THE SIX PREVIOUS YEARS IN ORDER TO INITIATE PROCEEDINGS UNDER SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF CEEDINGS U/S 153A FOR ALL SIX YEARS BUT REMITTED THE MATTERS BACK TO THE FILE OF THE AO FOR FRAMING FRESH ASSESSMENTS CONSIDERING THE EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE IN ITIATION OF PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE ADDITION IN VIEW OF THE FACT THAT NO WORTHWHILE MATERIAL OR EVIDENCE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD UPHOLD THE AO'S ORDER. FROM THE ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT ORDER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF CCOUNT OF UNEXPLAINED INVESTMENT COULD JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH [2016] 75 TAXMANN.COM 308/[2017] 245 TAXMAN 293/390 ITR 496 (DELHI) , THE ADDITIONS WERE MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE STATEMENT ADMITTING ADDITIONAL INCOME WAS NOT GIVEN BY HER. SHE HAD CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF CONCERN ONLY ON PAPER. ON THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE RECORDED IN WHICH HE HAD ADMITTED OF EARNING UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESSEE WAS THE OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF FITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND THAT IN THE PRESENT CASE NEITHER THE ASSESSEE NOR ANY OF ITS DIRECTORS HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INC RIMINATING MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO WHICH THE ADDITION MADE CAN BE JUSTIFIED. FOR THESE REASONS THEREFORE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. (C) IN THE CASE OF B KISHORE 449/[2015] 229 TAXMAN 614 COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS SWORN STATEMENT U/S 132(4) WITH REFERENCE TO COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS INCOME WHICH WAS NOT INCLUDED IN HIS RETURNS AND OUTSTANDING LOANS WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE ASSESSEE HIMSELF HAD MADE A CLEA INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE ADDITION WITH REFERENCE TO ASSESSEE'S OWN STATEMENT WAS HELD TO JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT CASE NO INCRIMINATING MA PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS STATEMENT ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF THE HON'B (D) IN THE CASE OF CIT V. S. AJIT KUMAR TAXMAN 286/404 ITR 526 (SC) AGAINST THE ASSESSEE, SIMULTANEOUS SURV AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, THESE CONNECTED PERSONS HAD ADMITTED OF RECEIVING PAYMENTS IN CASH WHICH WERE NOT FOUN FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. ALTHOUGH THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE IT ACT OR IN ANY PROCEEDINGS SIMULTANEOUSLY CONDUCTED IN THE PREMISES OF THE ASSESSE ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN THE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, WITH WHOM THE A REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE SIMULTANEOUSLY CONDUCTED AGAINST THE SO ANAND SHARMA NOR ANY TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND THAT THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS BEFOR IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY 13 WHICH THE ADDITION MADE CAN BE JUSTIFIED. FOR THESE REASONS THEREFORE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. IN THE CASE OF B KISHORE KUMAR V. DY. CIT [2014] 52 TAXMANN.COM 449/[2015] 229 TAXMAN 614 , IT WAS FOUND BY THE HON'BLE MADRAS HIGH COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS SWORN STATEMENT U/S 132(4) WITH REFERENCE TO LOOSE PAPERS FOUND IN THE COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS INCOME WHICH WAS NOT INCLUDED IN HIS RETURNS AND OUTSTANDING LOANS WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE ASSESSEE HIMSELF HAD MADE A CLEA R ADMISSION WITH REFERENCE TO INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE ADDITION WITH REFERENCE TO ASSESSEE'S OWN STATEMENT WAS HELD TO JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT CASE NO INCRIMINATING MA TERIAL WAS FOUND FROM THE ASSESSEE NOR ANY PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS STATEMENT ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF THE HON'B LE MADRAS HIGH COURT HAS NO APPLICATION. IN THE CASE OF CIT V. S. AJIT KUMAR [2018] 93 TAXMANN.COM 294/255 TAXMAN 286/404 ITR 526 (SC) , WHICH IS ALONG WITH THE SEARCH U/S 132 AGAINST THE ASSESSEE, SIMULTANEOUS SURV EY PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, THESE CONNECTED PERSONS HAD ADMITTED OF RECEIVING PAYMENTS IN CASH WHICH WERE NOT FOUN D RECORDED IN THE BOOKS OF THE ASSESSEE. ON THESE FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. ALTHOUGH THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE IT ACT OR IN ANY PROCEEDINGS SIMULTANEOUSLY CONDUCTED IN THE PREMISES OF THE ASSESSE E, RELATIVES AND/OR PERSONS WHO ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN THE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, WITH WHOM THE A SSESSEE HAD TRANSACTIONS, EVIDENCE WAS FOUND REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE SIMULTANEOUSLY CONDUCTED AGAINST THE SO - CALLED ENTRY OPERATOR SHRI ANAND SHARMA NOR ANY DOCUMENTARY EVIDENCE SUPPORTING ASSESSEE'S TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND THAT THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS BEFOR E THE HON'BLE APEX COURT IN THE CASE OF S. AJIT KUMAR (SUPRA) AND IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. WHICH THE ADDITION MADE CAN BE JUSTIFIED. FOR THESE REASONS THEREFORE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. [2014] 52 TAXMANN.COM , IT WAS FOUND BY THE HON'BLE MADRAS HIGH COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS LOOSE PAPERS FOUND IN THE COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS INCOME WHICH WAS NOT INCLUDED IN HIS RETURNS AND OUTSTANDING LOANS WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE R ADMISSION WITH REFERENCE TO INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE ADDITION WITH REFERENCE TO ASSESSEE'S OWN STATEMENT WAS HELD TO JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT TERIAL WAS FOUND FROM THE ASSESSEE NOR ANY PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS STATEMENT ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF [2018] 93 TAXMANN.COM 294/255 , WHICH IS ALONG WITH THE SEARCH U/S 132 EY PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, THESE CONNECTED PERSONS HAD ADMITTED OF RECEIVING PAYMENTS IN CASH D RECORDED IN THE BOOKS OF THE ASSESSEE. ON THESE FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. ALTHOUGH THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT IS A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE IT ACT OR IN ANY PROCEEDINGS SIMULTANEOUSLY E, RELATIVES AND/OR PERSONS WHO ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN THE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, SSESSEE HAD TRANSACTIONS, EVIDENCE WAS FOUND REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE CALLED ENTRY OPERATOR SHRI DOCUMENTARY EVIDENCE SUPPORTING ASSESSEE'S TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND THAT THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS E THE HON'BLE APEX COURT IN THE CASE OF S. AJIT KUMAR (SUPRA) AND IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY APPLICATION. (E) AS REGARDS THE LD. CIT, DR'S RELIANCE ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF R TAXMANN.COM 172/367 ITR 517 HON'BLE HIGH COURT SIMPLY FOLLOWED THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA). THE JUDICIAL PRINCIPLES TO BE APPLIED IN THE MATTER OF FRAMING OF ASSESSMENTS U/S BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T HELP THE CAUSE OF THE REVENUE. 15. ON THE CONTRARY WE NOTE THAT THE ISSUE INVOLVED BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT V. BEST INFRASTRUCTURE (INDIA) (P.) LTD. THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN FORM OF SHARE APPLICATION MONIES, IN LIEU OF CASH. RELYING ON THE STATEMENT OF MR. T, THE AO MA DE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 2005-06 TO 2009- 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL POSITION THAT UNLESS THERE IS INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS ARE SOUGHT TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN VIEW OF THE AFORESAID LEGAL POSITION, THE HON'BLE HIGH COURT OBSERVED THAT THE DIRECTOR OF THE ASSESSEE HAD ADM YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY OF THE EARLIER SIX YEARS. IT FURTHER OBSERVED THAT NO INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE'S PREMISES WHICH COUL THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT NOT ONLY THE ASSESSEE HAD DENIED NOT KNOWING THE SAID PERSON BUT EVEN THE REVENUE NEVER AFFORDED THE OPPORTUNITY OF HIS CROSS EXAMINAT FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T COULD NOT BE CONSIDERED TO BE INCRIMINATING EVIDENCE JUSTIFYING THE IN ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A MUCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOU SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT NOWHERE IN THE STATEMENTS OF SO PROVIDING ACC OMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT WE FIND THAT PRIOR TO THE COMPLETION OF ASSESSMENT U/S 153A ON 31 HIMSELF NEVER PERSONALLY EXAMINED ANY OF THE SO OPPORTUNITY OF CROSS EXAMI 14 APPLICATION. AS REGARDS THE LD. CIT, DR'S RELIANCE ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF R AJ KUMAR ARORA V. CIT TAXMANN.COM 172/367 ITR 517 , WE FIND THAT IN THE SAID JUDGMENT, THE HON'BLE HIGH COURT SIMPLY FOLLOWED THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA). THE JUDICIAL PRINCIPLES TO BE APPLIED IN THE MATTER OF FRAMING OF ASSESSMENTS U/S 153A FOR UNABATED YEARS HAVE BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T HELP THE CAUSE OF THE REVENUE. ON THE CONTRARY WE NOTE THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL APPEARS TO BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT V. BEST INFRASTRUCTURE (INDIA) (P.) LTD. [2017] 84 TAXMANN.COM 287/397 ITR 82 THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN FORM OF SHARE APPLICATION MONIES, IN LIEU OF CASH. RELYING ON THE STATEMENT OF MR. T, DE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL POSITION THAT UNLESS THERE IS INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN VIEW OF THE AFORESAID LEGAL POSITION, THE HON'BLE HIGH COURT OBSERVED THAT THE DIRECTOR OF THE ASSESSEE HAD ADM ITTED UNDISCLOSED INCOME ONLY IN RELATION TO THE YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY OF THE EARLIER SIX YEARS. IT FURTHER OBSERVED THAT NO INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE'S PREMISES WHICH COUL D JUSTIFY THE ADDITIONS MADE U/S 68 OF THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT NOT ONLY THE ASSESSEE HAD DENIED NOT KNOWING THE SAID PERSON BUT EVEN THE REVENUE NEVER AFFORDED THE OPPORTUNITY OF HIS CROSS EXAMINAT ION TO THE ASSESSEE. IT WAS FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T COULD NOT BE CONSIDERED TO BE INCRIMINATING EVIDENCE JUSTIFYING THE IN FERENCE AGAINST THE ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A MUCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOU SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT NOWHERE IN THE STATEMENTS OF SO - CALLED ENTRY OPERATORS THEY HAD ADMITTED OF OMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT WE FIND THAT PRIOR TO THE COMPLETION OF ASSESSMENT U/S 153A ON 31 -12 - HIMSELF NEVER PERSONALLY EXAMINED ANY OF THE SO - CALLED ENTRY OPERATORS NOR WAS OPPORTUNITY OF CROSS EXAMI NATION AFFORDED TO THE ASSESSEE THOUGH THE ADDITION WAS IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. AS REGARDS THE LD. CIT, DR'S RELIANCE ON THE JUDGMENT OF THE HON'BLE AJ KUMAR ARORA V. CIT [2014] 52 , WE FIND THAT IN THE SAID JUDGMENT, THE HON'BLE HIGH COURT SIMPLY FOLLOWED THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA). THE JUDICIAL PRINCIPLES TO BE APPLIED IN THE 153A FOR UNABATED YEARS HAVE BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T IN THE PRESENT APPEAL APPEARS TO BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT [2017] 84 TAXMANN.COM 287/397 ITR 82 . IN THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN FORM OF SHARE APPLICATION MONIES, IN LIEU OF CASH. RELYING ON THE STATEMENT OF MR. T, DE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL POSITION THAT UNLESS THERE IS INCRIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN VIEW OF THE AFORESAID LEGAL POSITION, THE HON'BLE HIGH COURT OBSERVED THAT THE ITTED UNDISCLOSED INCOME ONLY IN RELATION TO THE YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY OF THE EARLIER SIX YEARS. IT FURTHER OBSERVED THAT NO INCRIMINATING MATERIAL WAS D JUSTIFY THE ADDITIONS MADE U/S 68 OF THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT NOT ONLY THE ASSESSEE HAD DENIED NOT KNOWING THE SAID PERSON BUT EVEN THE REVENUE ION TO THE ASSESSEE. IT WAS FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T COULD NOT FERENCE AGAINST THE ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A MUCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOU S SEARCH OR SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT CALLED ENTRY OPERATORS THEY HAD ADMITTED OF OMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT - 2017, THE AO CALLED ENTRY OPERATORS NOR WAS NATION AFFORDED TO THE ASSESSEE THOUGH THE ADDITION WAS JUSTIFIED SOLELY WITH REFERENCE TO THEIR SO THAT ALTHOUGH THE STATEMENTS OF THE SO 2014 WERE AVAILABLE WITH THE AO 153C ON 30-03- 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH AND THEREFORE NO ADVERSE INFERENCE WAS DRAWN WITH REFERENCE TO THE SAID STATE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE IN DECIDING THE PRESENT APPEAL. 16. CONSIDERING THE DECISIONS OF THE JU THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL, WE HOLD THAT IN THE CASE OF UNABATED ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 15. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT ON THIS ISSUE. THE JUDGMENT OF THE HONBLE THE LD. D/R IS DEALT WITH IN THE ORDER OF THIS TRIBUNAL IN THE CASE OF (P) LTD. (SUPRA). AS THE UNDISPUTED FACT IS THAT THE ADDITIONS R.W.S. 143(3) OF THE ACT. ARE NOT BASED ON ANY INCRIMINATING MATERIAL SEARCH AND AS THE ASSESSMENT DELETE THE ADDITIONS BY THE ASSESSING OFFICER HONBLE JUR ISDICTIONAL HIGH COURT ON THIS ISSUE. APPLICANT COMPANIES HAVE BEEN ASSESSED TO TAX BY THE INCOME TAX DEPARTMENT AND ASSESSMENT ORDERS ARE PASSED U/S. 143(3) OF THE ACT. HENCE IT CANNOT BE SAID THAT THE IDENTIT Y OF THESE SHAREHOLDERS IS NOT ISSUE ON MERITS, AS WE HAVE GRANTED RELIEF TO THE ASSESSEE ON THE LEGAL ISSUE, AS OTHERWISE, IT WOULD BE AN ACADEMIC EXERCISE. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS KOLKATA, THE SD/- [ ABY T. VARKEY ] JUDICIAL MEMBER DATED : 14.01.2021 {SC SPS} 15 JUSTIFIED SOLELY WITH REFERENCE TO THEIR SO -CALLED ST ATEMENTS. ON THE CONTRARY WE FI THAT ALTHOUGH THE STATEMENTS OF THE SO - CALLED ENTRY OPERATORS RECORDED IN 2013 AND 2014 WERE AVAILABLE WITH THE AO 'S PREDECESSOR WHO COMPLETED THE ASSESSMENTS U/S 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH AND THEREFORE NO ADVERSE INFERENCE WAS DRAWN WITH REFERENCE TO THE SAID STATE MENT. HAVING REGARD TO THESE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE IN DECIDING CONSIDERING THE DECISIONS OF THE JU DICIAL AUTHORITIES ON THE SUBJECT, PARTICULARLY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL, WE HOLD THAT IN THE CASE OF UNABATED ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS PERMISSIBLE IN THE ORDER U/S 153A UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HONBLE JURISDICTIONAL THE JUDGMENT OF THE HONBLE KERALA HIGH COURT RELIED UPON BY THE LD. D/R IS DEALT WITH IN THE ORDER OF THIS TRIBUNAL IN THE CASE OF MAJESTIC COMMERCIAL AS THE UNDISPUTED FACT IS THAT THE ADDITIONS MADE IN THIS ORDER PASSED U/S 153A ARE NOT BASED ON ANY INCRIMINATING MATERIAL SEARCH AND AS THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011-12 HAS NOT ABATED THE ASSESSING OFFICER APPLYING THE PRINCIPLES LAID DOWN BY THE ISDICTIONAL HIGH COURT ON THIS ISSUE. EVEN OTHERWISE, ON MERITS ALL THE SHARE APPLICANT COMPANIES HAVE BEEN ASSESSED TO TAX BY THE INCOME TAX DEPARTMENT AND ASSESSMENT ORDERS ARE PASSED U/S. 143(3) OF THE ACT. HENCE IT CANNOT BE SAID THAT THE Y OF THESE SHAREHOLDERS IS NOT PROVED. BE IT AS IT MAY, WE DO NOT ADJUDICATE THIS ISSUE ON MERITS, AS WE HAVE GRANTED RELIEF TO THE ASSESSEE ON THE LEGAL ISSUE, AS OTHERWISE, IT WOULD BE AN ACADEMIC EXERCISE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 14 TH DAY OF JANUARY, 2021. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. ATEMENTS. ON THE CONTRARY WE FI D CALLED ENTRY OPERATORS RECORDED IN 2013 AND 'S PREDECESSOR WHO COMPLETED THE ASSESSMENTS U/S 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH AND THEREFORE NO ADVERSE MENT. HAVING REGARD TO THESE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE IN DECIDING DICIAL AUTHORITIES ON THE SUBJECT, PARTICULARLY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL, WE HOLD THAT IN THE CASE OF UNABATED IS PERMISSIBLE IN THE ORDER U/S 153A UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT RELIED UPON BY MAJESTIC COMMERCIAL MADE IN THIS ORDER PASSED U/S 153A ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING HAS NOT ABATED , WE APPLYING THE PRINCIPLES LAID DOWN BY THE EVEN OTHERWISE, ON MERITS ALL THE SHARE APPLICANT COMPANIES HAVE BEEN ASSESSED TO TAX BY THE INCOME TAX DEPARTMENT AND THEIR ASSESSMENT ORDERS ARE PASSED U/S. 143(3) OF THE ACT. HENCE IT CANNOT BE SAID THAT THE PROVED. BE IT AS IT MAY, WE DO NOT ADJUDICATE THIS ISSUE ON MERITS, AS WE HAVE GRANTED RELIEF TO THE ASSESSEE ON THE LEGAL ISSUE, AS SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. SENSITIVE VANIJYA PVT. LTD C/O MUKESH GOYAL ASHOK VIHAR COLONY JANTA NAGAR SEVOKE ROAD SILIGURI 734 001 2. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 16 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -4(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES IT(SS)A NO. 53/KOL/2018 ASSESSMENT YEAR: 2011-12 SENSITIVE VANIJYA PVT. LTD. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES