Shri Santosh Agarwal, Kanpur V. Deputy Commissioner of Income Tax, Central Circle-1, Kanpur

ITSSA 539/LKW/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5680 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 23-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SHEELA CHOPRA
• Keywords: Search and seizure; Document seized; Additional evidence; Accommodation entries; Tax effect; Documents seized
• Section: 143(3); 142(1); 153A; 143(1); 251; 143(2); 264; 48; 13; 153; 22; 153C; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW [THROUGH VIRTUAL HEARING] BEFORE SHRI A.D JAIN, VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER IT(SS) NO.417 /LKW/2019 A.Y. 2011-12 DCIT-2, CENTRAL CIRCLE I, KANPUR VS. SIDDARTH GUPTA, 3/7, VISHNUPURI, KANPUR 208002 PAN AEJPG 0532N IT(SS) NOS.422 & 423/LKW/2019 A.YS. 2011-12 & 2012-13 DCIT, CENTRAL CIRCLE I, KANPUR VS. SMT. SAPANA GUPTA, 3/7, VISHNUPURI, KANPUR 208002 PAN AGQPG 6859H IT(SS) NOS.538 & 539/LKW/2019 A.YS. 2011-12 & 2012-13 DCIT, CENTRAL CIRCLE I, KANPUR VS. SANTOSH KUMAR AGARWAL, 3/98, VISHNUPURI, KANPUR PAN ABKPA 7972Q IT(SS) NOS.541 & 542/LKW/2019 A.YS. 2011-12 & 2012-13 DCIT, CENTRAL CIRCLE I, KANPUR VS. MANISH AGARWAL, 53/07 NAYAGANJ, KANPUR PAN ABBPA 226D 2 IT(SS) NO.73 /LKW/2019 A.Y. 2011-12 DCIT, CENTRAL CIRCLE I, KANPUR VS. SMT. RUCHI AGARWAL, 3/98, VISHNUPURI, KANPUR PAN ADHPJ 2647J (RESPONDENT) (APPELLANT) SHRI P.K. KAPOOR, C.A. APPELLANT BY SMT. SHEELA CHOPRA, CIT, DR RESPONDENT BY 02/09/2021 DATE OF HEARING 14/09/2021 DATE OF PRONOUNCEMENT O R D E R PER BENCH: THIS IS A GROUP OF EIGHT APPEALS FILED BY THE DIFFERENT ASSESSEES FOR ASSESSMENT YEAR 2011-12 IN IT(SS) NO.417/LKW/2019 AND IT(SS)A NO.73/LKW/2019 AND FOR ASSESSMENT YEARS 2011-12 AND 2012-13 FOR REST OF THE APPEALS. 2. SIMILAR ISSUES ARE INVOLVED IN THESE APPEALS AND THESE WERE HEARD TOGETHER AND THEREFORE FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. 3. LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING ARGUED ONLY GROUND NOS. 1 AND 2 IN THESE APPEALS WHICH ARE COMMON AND WHICH FOR THE SAKE OF COMPLETENESS ARE REPRODUCED BELOW: IT(SS) NO. 417/LKW/2019 1. BECAUSE THE LEARNED CIT(A) WAS WRONG IN LAW & ON FACTS IN CONFIRMING THE ASSESSMENT ORDER PASSED BY AO U/S 153A OF THE ACT AS THE SAME WAS NOT IN CONSONANCE WITH THE SETTLED POSITION OF LAW VIS-A-VIS SEARCH CASES. 2. BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ASSESSMENT IGNORING THE SETTLED POSITION OF LAW THAT PROVISIONS OF SECTION 153A, IN CASE WHERE PROCEEDINGS ARE NOT PENDING, COULD NOT BE APPLIED IN ABSENCE OF ANY INCRIMINATING MATERIAL. 3 4. THE LD. AR OF THE ASSESSEE AT THE OUTSET SUBMITTED THAT ASSESSMENTS IN THESE CASES WERE COMPLETED U/S. 153A OF THE INCOME TAX ACT, 1961 IN VIEW OF A SEARCH AND SEIZURE ON THE GROUP ON 31.08.2015. THE LD. AR OF THE ASSESSEE SUBMITTED THAT SIX ASSESSMENT YEARS WERE REOPENED AND OUT OF THOSE YEARS THE ASSESSING OFFICER IN THESE YEARS HAS NOT MADE ANY ADDITION ON THE BASIS OF ANY INCRIMINATING MATERIAL AND HAS MADE THE ADDITIONS ON THE BASIS OF ENTRIES IN THE BOOKS OF ACCOUNT WHICH COULD NOT HAVE BEEN MADE AS HAS BEEN HELD BY VARIOUS HIGH COURTS AND CONFIRMED BY THE HON'BLE SUPREME COURT IN THE CASE OF KABUL CHAWLA AND MEETA GUTGUITIA. THE LD. AR OF THE ASSESSEE IN THIS RESPECT FILED A CHART SHOWING THEREIN SERIAL NUMBER OF APPEALS, RELATED ASSESSMENT YEARS, AND DATE OF FILING OF ORIGINAL RETURN. THE CHART ALSO INDICATED AS TO WHETHER THE ASSESSMENT HAS BEEN COMPLETED U/S. 143(3) OF THE ACT AND IN THE CASE OF ASSESSMENT U/S. 143(1) OF THE ACT, THE TIME BARRING DATE FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT. FOR THE SAKE OF COMPLETENESS THE CHART FILED BY THE LD. AR IS REPRODUCED BELOW: 4 5 5. THE LD. AR OF THE ASSESSEES INVITING OUR ATTENTION TO THIS CHART SUBMITTED THAT ASSESSMENT IN THESE CASES WAS MADE IN U/S. 153A OF THE ACT ON ACCOUNT OF SEARCH ON THE GROUP ON 31.08.2015 AND THE ASSESSMENTS IN THESE YEARS INDICATED IN THE CHART STOOD COMPLETED AND THEREFORE ADDITION, IF ANY, COULD HAVE BEEN MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. INVITING OUR ATTENTION TO THE COPIES OF ASSESSMENT ORDERS IN THESE CASES, THE LD. AR OF THE ASSESSEES SUBMITTED THAT ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF ENTRIES IN THE BOOKS OF ACCOUNT AND THERE IS NO WHISPER OF ANY INCRIMINATING MATERIAL ON THE BASIS OF WHICH THE ASSESSING OFFICER HAD MADE THE ADDITIONS. INVITING OUR ATTENTION TO THE LD. CIT(A)S ORDER THE LD. AR SUBMITTED THAT BEFORE THE LD. CIT(A) THIS GROUND OF APPEAL RELATING TO CONCLUDED ASSESSMENTS WAS TAKEN BUT HE DISMISSED THIS GROUND BY HOLDING THAT ONCE THE ASSESSMENT IS REOPENED U/S. 153A OF THE ACT THERE IS NO REQUIREMENT OF MAKING ADDITION ONLY ON THE BASIS OF INCRIMINATING MATERIAL. THE LD. AR SUBMITTED THAT IN A NUMBER OF CASES IT HAS BEEN HELD THAT IN THE CASE OF CONCLUDED ASSESSMENTS ADDITIONS CAN ONLY BE MADE ON THE BASIS OF INCRIMINATING MATERIAL IF ANY FOUND DURING SEARCH. THE LD. AR INVITED OUR ATTENTION TO THE VARIOUS ORDERS PASSED BY LUCKNOW BENCH UNDER SIMILAR FACTS AND CIRCUMSTANCES AND OUR PARTICULAR ATTENTION WAS INVITED TO THE FOLLOWING CASE LAWS: 1. ASHISH KUMAR CHAURASIA HUF VS. DCIT, IT(SS)A- 551/LKW/2019. 2. M/S ACCUMEN POLY PACK PVT. LTD. VS. DCIT, IT(SS)A-519 TO 522/LKW/2019. 3. ASHISH KUMAR CHAURASIA HUF VS. DCIT, IT(SS)A-89/LKW/2019. 4. SMT. SANDHYA AGARWAL VS. DCIT, IT(SS)A-379 & 380/LKW/2019. 6. IT WAS SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE CASE LAWS RELIED ON BY THE LD. CIT(A) HAS FINALLY RELIED ON THE CASE LAW OF MEETA GUTGUTIA DECIDED BY THE HON'BLE SUPREME COURT AND HAS DECIDED THE ISSUE 6 IN FAVOUR OF THE ASSESSEE AND THEREFORE IT WAS PRAYED THAT THESE APPEALS MAY ALSO BE ALLOWED. 7. THE LD. DR, ON THE OTHER HAND HEAVILY PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT LD. CIT(A) HAS PASSED A DETAILED ORDER WHEREIN HE HAS RELIED ON A NUMBER OF CASE LAWS FOR THE PREPOSITION THAT IN THE ASSESSMENTS U/S 153A THERE IS NO NEED FOR ANY INCRIMINATING MATERIAL. 8. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN THESE CASES, THE ASSESSMENT YEAR INVOLVED ARE 2011-12 AND 2012-13. WE FIND THAT IN IT(SS) NO. 417/LKW/2019 ONLY ONE YEAR I.E. 2011-12 IS INVOLVED. IN THIS CASE, THE ORIGINAL RETURN OF INCOME WAS FILED ON 01.01.2013 A COPY OF WHICH IS PLACED IN P.B. PG. 1. THE ITR WAS PROCESSED ON 28.02.2013 A COPY OF SUCH PROCESSING IS PLACED IN P.B. PG. 2. IN THIS YEAR THE ASSESSMENT WAS ALSO COMPLETED U/S. 143(3) VIDE ORDER DATED 31.03.2014 AND A COPY OF THE ASSESSMENT ORDER IS PLACED IN P.B. PG. 3 AND 4. THE SEARCH HAS TAKEN PLACE ON 31.08.2015 WHICH IS AFTER THE DATE OF ASSESSMENT MADE IN THIS YEAR U/S. 143(3) OF THE ACT. THEREFORE, IN THIS YEAR THE ADDITIONS IF ANY COULD HAVE BEEN MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH. THE ADDITIONS MADE BY THE ASSESSING OFFICER DOES NOT RELY ON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH AND RATHER THE ASSESSING OFFICER HAS MADE THE ADDITIONS ON THE BASIS OF EXAMINATION OF BOOKS OF ACCOUNTS. THE FACT THAT ASSESSING OFFICER HAS NOT BASED THE ADDITIONS ON THE BASIS OF ANY INCRIMINATING MATERIAL IS ALSO APPARENT FROM THE FINDINGS OF LD. CIT(A) WHEREIN HE HAS HELD THAT THERE IS NO REQUIREMENT OF ANY INCRIMINATING MATERIAL FOR MAKING ADDITION U/S 153A OF THE ACT. FOR THE SAKE OF COMPLETENESS THE FINDINGS OF LD. CIT(A) ARE REPRODUCED BELOW: 5.1 GROUND NO. 1, 2 AND 3 PERTAIN TO LEGAL CHALLENGE TO NOTICE U/S 153A OF THE ACT. IT IS ALSO SUBMITTED BY THE ID. A.R. OF THE APPELLANT THAT ORDER U/S 153A OF THE ACT IS INVALID IN ABSENCE OF 7 INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH FOR THESE RELEVANT ASSESSMENT YEARS IN APPEALS. APPELLANT ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAWS. (I) CIT V. KABUL CHAWLA [2016] 380 ITR 573 (DELHI), (II) CIT V. DEEPAK KUNIAR AGARWAL (2017) 251 TAXMAN 22 (BOM.)/86 TAXMAN.COM. (III) CIT V. VIKAS SUTGUTIO (2017) 396 ITR 691 (DEL,), (IV) CTT V. DEVANGI (2017) 394 ITR 184 (GUJ.), ETC. 5.2 UNDERSIGNED HAS CAREFULLY CONSIDERED +HE SUBMISSION AND THE CASE LAWS CITED BY THE APPELLANT. HOWEVER, CONSIDERING THE EXPRESS PROVISIONS OF SECTION 153A OF THE ACT, UNDERSIGNED WOULD LIKE TO DIFFER WITH THE SUBMISSION OF THE APPELLANT, BECAUSE SECTION 153A OF THE ACT CLEARLY PROVIDES THE POWER TO AO TO ASSESS/REASSESS THE CASES OF PERSON SEARCHED U/S 132(1) OF THE ACT FOR IMMEDIATELY SIX PRECEDING YEARS. SECTION 153A OF THE ACT DOES NOT PROVIDE EXISTENCE OF INCRIMINATING MATERIAL AS ESSENTIAL REQUIREMENT. IN THE OPINION OF THE UNDERSIGNED, THE ACTION U/S 132/132A OF THE ACT WOULD AUTOMATICALLY TRIGGER THE PROVISIONS OF SECTION 153A OF THE ACT FOR COMPUTATION OF TOTAL INCOME OF THE APPELLANT. THIS PROVISION DOES NOT RESTRICT THE ASSESSING OFFICER TO TAKE ACTION IN THOSE CASES WHERE ASSESSMENT HAS ALREADY BEEN COMPLETED. SINCE, THE AO HAS RIGHTLY EXERCISED HIS POWERS TO ASSESS/REASSESS THE CASE U/S 153A OF THE ACT. THE UNDERSIGNED FIND NO FORCE IN THE SUBMISSION OF THE APPELLANT AND THEREFORE, THIS GROUND IS DISMISSED. 5.3 THE CONTENTION OF THE ID. A.S. IS ALSO NOT ACCEPTABLE AFTER PLACING RELIANCE ON FOLLOWING JUDICIAL PRONOUNCEMENT. IN THE CASE OF E.N. (GOPAKUMAR VS. CIT (2016) 75 TAXMANN.COM 215 (KERALA)]- HON'BLE KERALA HIGH COURT HELD THAT ASSESSMENT PROCEEDINGS GENERATED BY ISSUANCE OF A NOTICE UNDER SECTION 153A(1)(A) CAN BE CONCLUDED AGAINST INTEREST OF ASSESSEE INCLUDING MAKING ADDITIONS EVEN WITHOUT ANY INCRIMINATING MATERIAL BEINQ AVAILABLE AGAINST ASSESSEE IN SEARCH UNDER SECTION 132 ON BASIS OF WHICH NOTICE WAS ISSUED UNDER SECTION 153A(1)(A). THE ABOVE ORDER HAS BEEN PASSED AFTER CONSIDERING CASES OF; (I) CIT V. KABUL CHAWLA [2016] 380 ITR 573/(20151 234 TAXMAN 300/61 TAXMANN.COM 412 (DELHI), I 8 (II) CIT V. CONTINENTAL WAREHOUSING CORPN. (NHAVA SHEVA) LTD. [2015] 374 ITR 645/232 TAXMAN 270/58 TAXMANN.COM 78 (BOM.). (III) PRINCIPAL CIT V. KURELE PAPER MILLS (P.) LTD. [2016] 330 ITR 571 (DELHI). (IV) CIT V. LANCY CONSTRUCTIONS [2016] 383 ITR 168/237 TAXMAN 728/66 TAXMANN.COM 264(KAR.) (V) CIT V. ST. FRANCIES CLAY DECOR TILES [2016] 240 TAXMAN 168/70 TAXMAN.COM 234 (KER.) AND (VI) CIT V. PROMY KURIAKOSE [2016] 386 ITR 597 (KER.). FURTHER, IN THE CASE OF CIT VS RAJ KUMAR ARORA [2014| 52 TAXMANN.COM 172 (ALLAHABAD) [2014] 367 ITR 517 (ALLAHABAD)- HON'BLE ALLAHABAD HIGH COURT HELD THAT ASSESSING OFFICER HAS POWER TO REASSESS*RETURNS OF ASSESSES NOT ONLY FOR UNDISCLOSED INCOME FOUND DURING SEARCH OPERATION BUT ALSO WITH REGARD TO MATERIAL AVAILABLE AT TIME OF ORIGINAL ASSESSMENT. SIMILARLY, IN THE CASE OF CIT VS KESARWANI ZARDA BHANDAR SAHSON ALLD. ITA NO. 270 OF 2014 (ALLAHABAD)- HON'BIE ALLAHABAD HIGH COURT HELD THAT ASSESSING OFFICER HAS POWER TO REASSESS RETURNS OF ASSESSEE NOT ONLY FOR UNDISCLOSED INCOME FOUND DURING SEARCH OPERATION BUT ALSO WITH REGARD TO MATERIAL AVAILABLE AT TIME OF ORIGINAL ASSESSMENT. ALSO, IN THE CASE OF CIT VS ST. FRANCIS CLAY DECOR TILES (385 ITR 6240-HON'BLE DELHI KERALA COURT HELD THAT NOTICE SSUED UNDER SECTION 153A- RETURN MUST BE FILED EVEN IF NO INCRIMINATING DOCUMENTS DISCOVERED DURING SEARCH. IN THE CASE OF CIT VS ANIL KUMAR BHATIA (24 TAXMANN.COM 98. 211 TAXMAN 453. 352 ITR 493)- HON'BLE DELHI'HIGH COURT HELD THAT JURISDICTION OF AO UNDER 153A IS TO ASSESS TOTAL INCOME FOR THE YEAR AND NOT RESTRICTED TO SEIZED MATERIAL. POST SEARCH REASSESSMENT IN RESPECT OF AIL 6 YEARS CAN BE MADE EVEN IF ORIGINAL RETURNS ARE ALREADY PROCESSED U/S 143(1)(A) ASSESSING OFFICER HAS POWER U/S 153A TO MAKE ASSESSMENT FOR ALL SIX YEARS AND COMPUTE TOTAL INCOME OF ASSESSEE, INCLUDING UNDISCLOSED INCOME, NOTWITHSTANDING THAT RETURNS FOR THESE YEARS HAVE ALREADY BEEN PROCESSED U/S 143(1)(A). EVEN IF ASSESSMENT ORDER HAD ALREADY OEEN PASSED IN RESPECT OF AL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) PRIOR TO INITIATION OF SEARCH/REQUISITION, STILL ASSESSING OFFICER IS EMPOWERED TO REOPEN THESE PROCEEDINGS UNDER SECTION 9 153A WITHOUT ANY FETTERS AND REASSESS TOTAL INCOME TAKING NOTE OF UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING SEARCH. IN THE CASE OF FILATEX INDIA LTD VS CIT (49 TAXMANN.COM 465)- HON'BLE DELHI HIGH COURT HELD THAT DURING ASSESSMENT UNDER SECTION 153A, ADDITIONS NEED NOT BE RESTRICTED OR LIMITED TO INCRIMINATING MATERIAL, FOUND DURING COURSE OF SEARCH. 5.4 IN VIEW OF THE DETAILED DISCUSSION MENTIONED HERE-IN-ABOVE AND CONSIDERING THE JURISDICTIONAL PRONOUNCEMENTS CITED HERE-IN- ABOVE, LEGAL GROUNDS OF APPEAL OF THE APPE.1 ANT ARE HEREBY DISMISSED FOR EACH ASSESSMENT YEAR I.E. A.Y. 2011-12 AND A.Y. 2013-1-1 TO A.Y. 2015-16. 9. THE ABOVE FINDINGS OF LD. CIT(A) WHICH ARE SIMILAR IN ALL APPEALS CLEARLY DEMONSTRATE THAT ASSESSING OFFICER HAD NOT MADE THE ADDITION ON THE BASIS OF ANY INCRIMINATING MATERIAL AND RATHER HE HAS MADE THE ADDITION ON THE BASIS OF ENTRIES IN THE BOOKS OF ACCOUNT WHICH IS NOT IN ACCORDANCE WITH LAW WITH THE SETTLED POSITION OF LAW IN A NUMBER OF CASES IT HAS BEEN HELD BY VARIOUS HIGH COURTS THAT IN CASE OF CONCLUDED ASSESSMENT THE ADDITION CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. EVEN HON'BLE SUPREME COURT IN THE CASES OF KABUL CHAWLA AND MEETA GUTGUTIA HAS DISMISSED THE SLPS FILED BY THE DEPARTMENT AGAINST THE ORDER OF HON'BLE HIGH COURTS. THE LUCKNOW BENCH IN A NUMBER OF CASES HAS ALLOWED THIS GROUND OF APPEAL UNDER SIMILAR FACTS AND CIRCUMSTANCES AFTER PLACING RELIANCE ON THE ORDER OF HON'BLE SUPREME COURT IN THE CASE OF MEETA GUTGUTIA. FOR THE SAKE OF COMPLETENESS THE FINDINGS OF LUCKNOW BENCH IN IT(SS) NO. 519 TO 522/LKW/2019 VIDE ORDER DATED 12.07.2021 ARE REPRODUCED BELOW: 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN THIS CASE THE ASSESSMENT YEARS INVOLVED ARE 2010-11, 2011-12, 2012-13 AND 2013-14. WE FIND THAT IN ASSESSMENT YEAR 2010-11, THE ORIGINAL RETURN WAS FILED ON 14/10/2010, A COPY OF THE ACKNOWLEDGEMENT OF THE RETURN OF INCOME IS PLACED AT PAGE 1 OF THE PAPER BOOK. THE PROCESSING OF SUCH RETURN WAS COMPLETED ON 25/02/2011, THE EVIDENCE OF WHICH IS PLACED AT PAGE 2 OF THE PAPER BOOK. NO ASSESSMENT ORDER WAS PASSED U/S 143(3) IN THIS CASE. HOWEVER, 10 THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2011 WHICH IS MUCH BEFORE THE DATE OF SEARCH ON THE ASSESSEE WHICH HAPPENS TO BE ON 31/08/2015. THEREFORE, BEFORE THE SEARCH TOOK PLACE, THE ASSESSMENT IN THIS CASE ALREADY STOOD COMPLETED AND, THEREFORE, AS PER THE SETTLED LEGAL POSITION, THE ADDITIONS IF ANY, COULD HAVE BEEN MADE ON THE BASIS OF INCRIMINATING MATERIAL ONLY. THE SECOND YEAR INVOLVED IS ASSESSMENT YEAR 2011-12. IN THIS YEAR, THE DATE OF FILING OF ORIGINAL RETURN IS 29/09/2011, A COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME IS PLACED AT PAGE 3 OF THE PAPER BOOK AND THE ITR HAS BEEN PROCESSED ON 20/01/2012, THE EVIDENCE OF WHICH IS PLACED AT PAGE 4 OF THE PAPER BOOK AND THE PERIOD FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2012 AND IN THIS CASE ALSO NO ASSESSMENT WAS MADE U/S 143(3) OF THE ACT AND THIS YEAR ALSO STOOD COMPLETED AS THE DATE OF SEARCH IS MUCH AFTER THE TIME LIMIT FOR ISSUE OF NOTICE. SIMILAR IS THE POSITION IN ASSESSMENT YEAR 2012-13 WHERE THE ORIGINAL RETURN WAS FILED ON 29/09/2012, A COPY OF ACKNOWLEDGMENT OF RETURN IS PLACED AT PAGE 5 OF THE PAPER BOOK. IN THIS YEAR THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 30/01/2015, A COPY OF WHICH IS PLACED AT PAGES 7 TO 11 OF THE PAPER BOOK. THEREFORE, THE ASSESSMENT IN THIS YEAR ALSO STOOD COMPLETED BEFORE THE DATE OF SEARCH WHICH HAPPENS TO BE ON 31/08/2015. SIMILAR IS THE POSITION FOR ASSESSMENT YEAR 2013-14 WHERE THE ORIGINAL RETURN WAS FILED ON 30/09/2013, A COPY OF ACKNOWLEDGEMENT OF RETURN IS PLACED AT PAGE 12 OF THE PAPER BOOK. THE RETURN WAS PROCESSED U/S 143(1) VIDE ORDER DATED 02/08/2014, A COPY OF WHICH IS PLACED AT PAGE 13 OF THE PAPER BOOK AND THE PERIOD FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2014 WHICH IS ALSO BEFORE THE DATE OF SEARCH I.E. 31/08/2015. 4.1 THE ABOVE FACTS CLEARLY DEMONSTRATE THAT THE ASSESSMENT YEAR INVOLVED IN THESE APPEALS STOOD COMPLETED BEFORE THE DATE OF SEARCH AND ADDITIONS, IF ANY, WERE TO BE MADE ANY ON THE BASIS OF INCRIMINATING MATERIAL ONLY WHICH HAS NOT BEEN DONE IN THESE CASES AS THE ASSESSMENT ORDERS DO NOT INDICATE OR REFER TO ANY INCRIMINATING MATERIAL. THE FACT THAT THE ADDITIONS WERE NOT BASED ON THE BASIS OF INCRIMINATING MATERIAL IS FURTHER STRENGTHENED BY THE FINDINGS OF LEARNED CIT(A) WHERE THE ASSESSEE HAD RAISED THIS GROUND OF APPEAL AND WHEREIN THE LEARNED CIT(A) HAS HELD THAT THE LAW DOES NOT REQUIRE THE ASSESSING OFFICER TO TAKE ACTION IN THESE CASES TO MAKE ASSESSMENT ONLY ON THE BASIS OF INCRIMINATING MATERIAL. WHILE HOLDING SO THE LEARNED CIT(A) HAS RELIED ON A NUMBER OF CASE 11 LAWS. FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF LEARNED CIT(A) IN I.T.A. NO.519 ARE REPRODUCED BELOW: 5.1 GROUND NO. 1,2&3 FOR ASSESSMENT YEAR 2010-11 TO ASSESSMENT YEAR 2013-14 AND GROUND NO. 1 FOR ASSESSMENT YEAR 2014-15 AND ASSESSMENT YEAR 2015-16 PERTAIN TO LEGAL CHALLENGE TO NOTICE U/S 153A OF THE ACT. IT IS ALSO SUBMITTED BY THE LD. A.R. OF THE APPELLANT THAT ORDER U/S 153A OF THE ACT IS INVALID IN ABSENCE OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH FOR THESE RELEVANT ASSESSMENT YEARS. APPELLANT ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAWS: (I) CIT V. KABUL CHAWLA [2016] 380 XTR 573 (DELHI), (II) CIT V. BEEPAK KUMAR AGARWAL (2017) 251 TAXMON 22 (BOM.)/86 TAXRNANN.COM, (III) CIT V. VIKAS SUTGUTIA (2017) 396 ITR 691 (DEL.), (IV) CIT V. BEVANGI (2017) 394 ITR 184 (SUJ.), ETC. 5.2 UNDERSIGNED HAS CAREFULLY CONSIDERED THE SUBMISSION AND THE CASE LAWS CITED BY THE APPELLANT. HOWEVER, CONSIDERING THE EXPRESS PROVISIONS OF SECTION 153A OF THE ACT, UNDERSIGNED WOULD LIKE TO DIFFER WITH THE SUBMISSION OF THE APPELLANT, BECAUSE SECTION 153A OF THE ACT CLEARLY PROVIDES THE POWER TO AO TO ASSESS/REASSESS THE CASES OF PERSON SEARCHED U/S 132(1) OF THE ACT FOR IMMEDIATELY SIX PRECEDING YEARS. SECTION 153A OF THE ACT DOES NOT PROVIDE EXISTENCE OF INCRIMINATING MATERIAL AS ESSENTIAL REQUIREMENT. IN THE OPINION OF THE UNDERSIGNED, THE ACTION U/S 132/132A OF THE ACT WOULD AUTOMATICALLY TRIGGER THE PROVISIONS OF SECTION 153A OF THE ACT FOR COMPUTATION OF TOTAL INCOME OF THE APPELLANT. THIS PROVISION DOES NOT RESTRICT THE ASSESSING OFFICER TO TAKE ACTION IN THOSE CASES WHERE ASSESSMENT HAS ALREADY BEEN COMPLETED. SINCE, THE AO HAS RIGHTLY EXERCISED HIS POWERS TO ASSESS/REASSESS THE CASE U/S 153A OF THE ACT, THE UNDERSIGNED FIND NO FORCE IN THE SUBMISSION OF THE APPELLANT AND THEREFORE, THIS GROUND IS DISMISSED. 5.3 THE CONTENTION OF THE ID. A.R. IS ALSO NOT ACCEPTABLE AFTER PLACING RELIANCE ON FOLLOWING JUDICIAL PRONOUNCEMENT. 12 IN THE .COSE OF E.N. GOPALKUMAR VS.CIT (2016) 75 TAXMANN.COM 215 (KERALA)-HON'BLE KERALA HIGH COURT HELD THAT ASSESSMENT PROCEEDINGS GENERATED BY ISSUANCE OF A NOTICE UNDER SECTION 153A(1)(A) CAN BE CONCLUDED AGAINST INTEREST OF ASSESSEE INCLUDING MAKING ADDITIONS EVEN WITHOUT ANY INCRIMINATING MATERIAL BEING AVAILABLE AGAINST ASSESSEE IN SEARCH UNDER SECTION 132 ON BASIS OF WHICH NOTICE WAS ISSUED UNDER SECTION 153A(1)(A). THE ABOVE ORDER HAS BEEN PASSED AFTER CONSIDERING CASES OF; (I) CIT V. KABUL CHAWLA [2016] 380 ITR 5737(20151 234 TAXMAN 300/61 TAXMANN.COM 412 (DELHI) (II) CIT V. CONTINENTAL WAREHOUSING CORPN. (NHAVA SHEVA) LTD. [2015] 374 ITR 645/232 TAXMAN 270/58 TAXMANN.COM 78 (BOM.) (III) PRINCIPAL CIT V. KURELE PAPER MILLS (P.) LTD. [2016] 380 ITR 571 (DELHI) (IV) CIT V. LANCY CONSTRUCTIONS [2016] 383 ITR 168/237 TAXMAN 728/66 TAXMANN.COM 264 (KAR.) (V) CTT V. ST. FRANCIES CLAY DECOR TILES [2016] 240 TAXMAN 168/70 TAXMANN.COM 234 (KER.) (VI) CIT V. PROMY KURIAKOSE [2016] 386 ITR 597 (KER.). FURTHER, IN THE CASE OF CIT VS RAJ KUMOR ARORA [2014] 52 TAXMANN.COM 172 (ALLAHABAD) [2014[ 367 ITR 517 (ALLAHABAD)- HON'BLE ALLAHABAD HIGH COURT HELD THAT ASSESSING OFFICER HAS POWER TO REASSESS RETURNS OF ASSESSEE NOT ONLY FOR UNDISCLOSED INCOME FOUND DURING SEARCH OPERATION BUT ALSO WITH REGARD TO MATERIAL AVAILABLE AT TIME OF ORIGINAL ASSESSMENT. SIMILARLY, IN THE CASE OF CIT VS KESARWANI ZARDA BHANDAR SAHSON ALLD. ITA NO. 270 OF 2014 (ALLAHABAD)- HON'BLE ALLAHABAD HIGH COURT HELD THAT ASSESSING OFFICER HAS POWER TO REASSESS RETURNS OF ASSESSEE NOT ONLY FOR UNDISCLOSED INCOME FOUND DURING SEARCH OPERATION BUT ALSO WITH REGARD TO MATERIAL AVAILABLE AT TIME OF ORIGINAL ASSESSMENT. 13 ALSO, IN THE CASE OF CIT VS ST. FRANCIS CLAY DECOR TILES (385 ITR 624)-HON'BLE KERALA HIGH COURT HELD THAT NOTICE ISSUED UNDER SECTION 153A- RETURN MUST BE FILED EVEN IF NO INCRIMINATING DOCUMENTS DISCOVERED DURING SEARCH. IN THE CASE OF CIT VS ANIL KUMAR . BHATIA (24 TAXMANN.COM 98, 211 TAXMAN 453. 352 ITR 493)- HON'BLE DELHI HIGH COURT HELD THAT JURISDICTION OF AO UNDER 153A IS TO ASSESS TOTAL INCOME FOR THE YEAR AND NOT RESTRICTED TO SEIZED MATERIAL. POST SEARCH REASSESSMENT IN RESPECT OF ALL 6 YEARS CAN BE MADE EVEN IF ORIGINAL RETURNS ARE ALREADY PROCESSED U/S 143(1)(A) - ASSESSING OFFICER HAS POWER U/S 153A TO MAKE ASSESSMENT FOR ALL SIX YEARS AND COMPUTE TOTAL INCOME OF ASSESSEE, INCLUDING UNDISCLOSED INCOME, NOTWITHSTANDING THAT RETURNS FOR THESE YEARS HAVE ALREADY BEEN PROCESSED U/S 143(L)(A). EVEN IF ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(L)(A) OR SECTION 143(3) PRIOR TO INITIATION OF SEARCH/REQUISITION, STILL ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS UNDER SECTION 153A WITHOUT ANY FETTERS AND REASSESS TOTAL INCOME TAKING NOTE OF UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING SEARCH. IN THE CASE OF FILATEX INDIA LTD VS CIT (49 TAXMANN.COM 465)- HON'BLE DELHI HIGH COURT HELD THAT DURING ASSESSMENT UNDER SECTION 153/4, ADDITIONS NEED NOT BE RESTRICTED OR LIMITED TO INCRIMINATING MATERIAL, FOUND DURING COURSE OF SEARCH. 5.4 IN VIEW OF THE DETAILED DISCUSSION MENTIONED HERE-IN- ABOVE AND CONSIDERING THE JURISDICTIONAL PRONOUNCEMENTS CITED HERE-IN-ABOVE, LEGAL GROUNDS OF APPEAL OF THE APPELLANT ARE HEREBY DISMISSED FOR A.V. 2010-11 TO A.Y. 2015-16. 5. THE ABOVE FINDINGS OF LEARNED CIT(A) CLEARLY DEMONSTRATE THAT THERE WAS NO INCRIMINATING MATERIAL ON THE BASIS OF WHICH THE ASSESSING OFFICER HAD MADE THE ADDITIONS. THE LEARNED CIT(A) HAS HELD THAT ASSESSMENTS U/S 153A NEED NOT BE BASED ON INCRIMINATING MATERIAL. WHILE HOLDING SO, THE LD. CIT(A) HAS ALSO RELIED ON CERTAIN CASE LAWS WHICH HAVE BEEN DECIDED AGAINST THE 14 ASSESSEE. FIRST CASE LAW OF E. N. GOPALKUMAR VS. CIT WAS PRONOUNCED IN 2016. SECOND CASE LAW OF CIT VS. RAJ KUMAR ARORA WAS PRONOUNCED IN 2014. THIRD CASE LAW OF CIT VS. KESARWANI ZARDA BHANDAR, ALLAHABAD WAS PRONOUNCED IN 2014. SIMILARLY CASE LAW OF CIT VS. ST. FRANCIS CLAY DCOR TILES WAS PRONOUNCED IN THE YEAR 2016 WHEREAS THE HON'BLE DELHI HIGH COURT HAS PRONOUNCED THE CASE LAW IN THE CASE OF PR. CIT VS. MEETA GULGUTIA IN 2017 AFTER CONSIDERING THE OTHER CASE LAWS REFERRED BY LEARNED CIT(A) AND WHICH HAS BEEN CONFIRMED BY HON'BLE SUPREME COURT WHEREIN THE HON'BLE SUPREME COURT HAS DISMISSED THE SLP FILED BY REVENUE. THEREFORE, THE CASE LAWS RELIED ON BY LEARNED CIT(A) ARE OF NO HELP TO REVENUE. 5.1 THE LUCKNOW BENCH OF THE TRIBUNAL IN A NUMBER OF CASES, AFTER RELYING ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA (SUPRA) HAS ALLOWED THE APPEALS OF VARIOUS ASSESSEES IN THE FOLLOWING CASES: (I) IT(SS)A NO. 630 & 631/LKW/2019, IT(SS)A NO.633 & 634/LKW/2019 AND IT(SS)A NO. 637 & 638/LKW/2019 DATED 01/02/2021 (II) I.T.A. NO.510 TO 512/LKW/2019, I.T.A. NO. 513 & 514/LKW/2019, I.T.A. NO.515 & 516/LKW/2019 AND I.T.A. NO.517/LKW/2019 DATED 16/12/2020 (III) IT(SS)A NO.130-143/LKW/2018 DATED 03/03/2020 (IV) I.T.A. NO.430 TO 433/LKW/2016 DATED 15/03/2018 (V) I.T.A. NO.551, 553, 554, 99,100,113,115,92,93,94,95,96, 104 AND 109 VIDE A CONSOLIDATED ORDER DATED 27/05/2021 FOR THE SAKE OF COMPLETENESS THE FINDINGS OF LUCKNOW TRIBUNAL IN I.T.A. NO.630, 631, 633, 634, 637 & 638 ARE REPRODUCED BELOW: 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT A SEARCH & SEIZURE OPERATION WAS CARRIED OUT ON THE GROUP OF ASSESSEES ON 23/08/2016 AND IN THE EARLIER APPEALS WHICH WERE DECIDED BY THE TRIBUNAL VIDE ORDER DATED 16/12/2020, THE TRIBUNAL HAD MADE A FINDING OF FACT THAT IN ASSESSMENT YEAR 2013-14, THE ADDITIONS COULD NOT HAVE BEEN MADE AS ADDITIONS WERE NOT MADE ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE ASSESSMENTS IN THOSE YEARS HAD ALREADY STOOD COMPLETED. IN THE PRESENT CASE, THE YEARS INVOLVED ARE ASSESSMENT YEARS 2012-13 AND 2014-15. IN RESPECT OF I.T.A. NO.633 & 634 FOR ASSESSMENT YEARS 2012-13 AND 2014-15, THE ASSESSMENTS STOOD COMPLETED ON THE DATE OF SEARCH I.E. ON 15 23/08/2016 AS FOR ASSESSMENT YEAR 2012-13 THE RETURN WAS FILED ON 29/09/2012 WHICH IS APPARENT FROM PAGE NO. 48 OF THE PAPER BOOK AND THE TIME FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2013 AND INTIMATION U/S 143(1) WAS ISSUED VIDE ORDER DATED 22/05/2013, A COPY OF WHICH IS PLACED IN PAPER BOOK PAGES 51 TO 69. SIMILARLY, FOR ASSESSMENT YEAR 2014-15 IN I.T.A. NO.634/LKW/2019, THE RETURN WAS FILED ON 26/11/2014 WHICH IS APPARENT FROM PAGE NO. 38 OF THE PAPER BOOK AND THE TIME FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2015 AND INTIMATION U/S 143(1) WAS ISSUED VIDE ORDER DATED 04/08/2015, A COPY OF WHICH IS PLACED IN PAPER BOOK AT PAGES 41 TO 61. SIMILARLY, IN RESPECT OF APPEALS IN I.T.A. NO.637 & 638, THE RETURN FOR ASSESSMENT YEAR 2012-13 WAS FILED ON 30/09/2012 WHICH IS APPARENT FROM PAGE NO. 18 OF THE PAPER BOOK AND THEREFORE, THE TIME FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2013 WHICH IS BEFORE THE DATE OF SEARCH. SIMILARLY, FOR ASSESSMENT YEAR 2014-15, THE RETURN WAS FILED ON 30/11/2014 WHICH IS APPARENT FROM PAGE NO. 39 OF THE PAPER BOOK AND THE TIME FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2015 AND INTIMATION U/S 143(1) WAS ISSUED VIDE ORDER DATED 19/12/2014, A COPY OF WHICH IS PLACED IN PAPER BOOK AT PAGES 42 TO 47. SIMILARLY, IN RESPECT OF APPEALS IN I.T.A. NO.630 & 631, THE RETURN FOR ASSESSMENT YEAR 2012-13 WAS FILED ON 30/09/2012 WHICH IS APPARENT FROM PAGE NO. 18 OF THE PAPER BOOK AND TIME FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2013 WHICH IS BEFORE THE DATE OF SEARCH I.E. 23/08/2016. SIMILARLY, FOR ASSESSMENT YEAR 2014-15 THE RETURN WAS FILED ON 30/11/2014 WHICH IS APPARENT FROM PAGE NO. 37 OF THE PAPER BOOK AND THE DATE FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30/09/2015 AND INTIMATION U/S 143(1) WAS ISSUED VIDE ORDER DATED 29/12/2014, A COPY OF WHICH IS PLACED IN PAPER BOOK AT PAGES 40 TO 48. THEREFORE, FOR ASSESSMENT YEARS 2012-13 & 2014-15 THE ADDITIONS ARE NOT SUSTAINABLE AS THE ADDITIONS HAVE NOT BEEN MADE ON THE BASIS OF ANY SEIZED MATERIAL WHICH IS APPARENT FROM THE ASSESSMENT ORDERS ITSELF. 6. WE HAVE ALREADY HELD IN OUR ORDER DATED 16/12/2020 IN THE CASE OF THE PRESENT ASSESSEES ITSELF IN OTHER ASSESSMENT YEARS THAT ADDITIONS WERE NOT MADE ON THE BASIS OF ANY INCRIMINATING MATERIAL AS THE ASSESSING OFFICER, WHILE MAKING THE ADDITIONS, HAD NOT RELIED ON ANY SEIZED MATERIAL AND HAD RELIED ON THE DOCUMENT MARKED AS BK-2 WHICH WAS SEIZED BY THE SEARCH PARTY FROM SOME OTHER GROUP AND THERE THE SEARCH TOOK PLACE ALMOST ONE YEAR BEFORE THE DATE OF SEARCH ON THE PRESENT ASSESSEES. THE FINDINGS OF THE TRIBUNAL ARE 16 CONTAINED IN PARA 5 OF THE ORDER, WHICH FOR THE SAME OF COMPLETENESS, ARE REPRODUCED BELOW: 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE FIRST ARGUMENT OF LEARNED COUNSEL FOR THE ASSESSEE WAS THAT IN CASE OF COMPLETED ASSESSMENTS, THE ADDITION CANNOT BE MADE IF THERE IS NO INCRIMINATING MATERIAL. IN THIS REGARD LEARNED COUNSEL FOR THE ASSESSEE HAD SUBMITTED THAT IN THE YEAR 2013-14 AND 2015-16 THE ASSESSMENTS STOOD COMPLETED AND THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. IN THIS RESPECT THE BENCH HAD ASKED BOTH THE PARTIES TO FURNISH THE MATERIAL WHICH WAS IMPOUNDED DURING THE SEARCH AND WHICH BOTH THE PARTIES HAD FILED WITH THE BENCH WHICH WE HAVE EXAMINED AND HAVE COMPARED WITH THE MATERIAL USED BY ASSESSING OFFICER IN ASSESSMENT ORDER. WE FOUND THAT NONE OF THE MATERIAL SEIZED DURING THE SEARCH WAS USED BY THE ASSESSING OFFICER FOR MAKING ADDITION AND INSTEAD HAD RELIED ON A DOCUMENT MARKED AS BK-2, WHICH WAS SEIZED DURING A SEARCH OPERATION ON A DIFFERENT GROUP OF COMPANY AND THAT TOO ON 28/04/2015 THAT IS MORE THAN ONE YEAR BEFORE THE DATE OF SEARCH ON ASSESSEES. THIS FACT IS FURTHER STRENGTHENED FROM THE ASSESSMENT ORDER WHEREIN THE ASSESSING OFFICER, AT PAGE 8, HAS OBSERVED AS UNDER: IN THIS CONTEXT, IT IS NOTEWORTHY THAT A SEARCH & SEIZURE OPERATION U/S 132 OF THE I.T. ACT, 1961 CONDUCTED UPON THE COMPANIES OF SHMSHWAT AGARWAL ON 28.04.2015 BY THE INVESTIGATION WING, KANPUR. THE INCRIMINATING DOCUMENTS WHICH WERE FOUND AND SEIZED ARE THE PREMISES ALSO INCLUDE A DIARY IDENTIFIED AS BK-2, CONTAINING LEDGERS OF DIFFERENT PARTIES. ON GOING THROUGH PAGES OF THESE LEDGERS, IT WAS FOUND THAT THE COMPANIES OF SRI SHASHWAT AGARWAL ARE PAPER COMPANIES AND ARE ENGAGED IN PROVIDING THE ACCOMMODATION ENTRIES OF BOGUS LTCG, UNSECURED LOAN ETC, TO VARIOUS PARTIES BY ACCEPTING UNDISCLOSED CASH FROM BENEFICIARIES. NAME OF SUCH BENEFICIARIES, DATE-WISE RECEIPT OF CASH AND ISSUANCE OF CHEQUES FROM AND TO THEM, IS RECORDED IN THIS DIARY VERY VIVIDLY. THE NAME OF SRI 17 NAVIN JAIN AND HIS FAMILY MEMBERS SUCH AS HIS FATHER SRI NARESH KIUNAR JAIN, NARESH KUMAR JAIN HUF, HIS MOTHER SMT. SHRIMATI JAIN AND HIS WIFE NEETU JAIN ALSO FIGURE IN THIS DIARY. SHRI NAVIN JAIN AND HIS AFOREMENTIONED FAMILY MEMBERS HAVE TAKEN ACCOMMODATION ENTRIES OF TAX EXEMPT LONG TERM CAPITAL GAIN BY THE WAY OF PRE-ARRANGED AND MANIPULATIVE TRADING IN THE SHARES CITYON SYSTEMS (INDIA) LIMITED. THIS SALE WAS STAGE MANAGED BY SH. SHASHWAT AGARWAL AND HIS BROTHERS AS ALL THE SHARES WERE PURCHASED BY THE COMPANIES CONTROLLED BY SH. SHASHWAT AGARWAL. 5.1 THE ABOVE OBSERVATIONS, NOTED BY THE ASSESSING OFFICER, CLEARLY DEMONSTRATE THAT A DIARY IDENTIFIED AS BK-2 WAS IMPOUNDED DURING SEARCH & SEIZURE OPERATION ON 28/04/2015 IN THE CASE OF SEARCH ON THE COMPANIES BELONGING TO SHRI SHASHWAT AGARWAL WHEREIN THE NAME OF SHRI NAVIN JAIN AND HIS FAMILY MEMBERS WERE MENTIONED. THE ASSESSING OFFICER NOWHERE NOTED THAT THE NAMES OF THE ASSESSEES WAS ALSO MENTIONED IN SUCH DIARY. MOREOVER, FROM THE FINDINGS OF THE ASSESSING OFFICER, WE FIND THAT THE COMPANIES OF SHRI SHASHWAT AGARWAL WERE ENGAGED IN PROVIDING ACCOMMODATION ENTRIES OF BOGUS LONG TERM CAPITAL GAIN, UNSECURED LOANS ETC. TO VARIOUS PARTIES AND THERE IS NO MENTION OF BOGUS TRANSACTIONS OF CLOTH. MOREOVER, THE ABOVE FINDINGS CLEARLY INDICATE THAT THE ACCOMMODATION ENTRIES OF LONG TERM CAPITAL GAIN AND UNSECURED LOANS WERE OBTAINED BY THE INDIVIDUALS MENTIONED IN THE ASSESSMENT ORDER AND THERE IS NO MENTION THAT THE ASSESSEES HAD TAKEN ANY ENTRY OF LONG TERM CAPITAL GAIN OR UNSECURED LOANS FROM THE COMPANIES OF SHRI SHASHWAT AGARWAL. THIS FACT IS FURTHER CORROBORATED FROM THE FACT THAT THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEES DID NOT MAKE ANY ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN OR UNSECURED LOANS BUT HE MADE THE ADDITIONS BY HOLDING THE SALE AND PURCHASE OF CLOTH WHICH WAS PURCHASED FROM RICH GROUP OF COMPANIES TO BE BOGUS. ALL THESE FACTS DEMONSTRATE THAT THE ASSESSING OFFICER HAD NOT MADE THE ADDITION ON THE BASIS OF ANY INCRIMINATING DOCUMENT BUT HAD MADE 18 THE ADDITION ON ACCOUNT OF BOGUS SALE AND PURCHASE OF CLOTH FOR WHICH NO DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH. EVEN OTHERWISE, THE DOCUMENTS RELIED ON BY THE ASSESSING OFFICER WERE FOUND AT THE PREMISES OF THE COMPANIES OF SHRI SHASHWAT AGARWAL WHEREIN THE SEARCH WAS CARRIED OUT ON 28/04/2015 AND THERE TOO THE INCRIMINATING MATERIAL, AS MENTIONED IN THE ASSESSMENT ORDER, WAS A DIARY IDENTIFIED AS BK-2 WHEREIN THE NAMES OF SOME PROMOTERS/DIRECTORS OF THE ASSESSEES WERE MENTIONED. NOWHERE THEREIN THE NAMES OF THE ASSESSEES HAVE BEEN MENTIONED. LEARNED COUNSEL FOR THE ASSESSEE HAD RELIED ON A NUMBER OF CASE LAWS FOR THE PROPOSITION THAT IN CASE NO INCRIMINATING MATERIAL IS FOUND, THE ADDITIONS CANNOT BE MADE IN THE CASE OF COMPLETED ASSESSMENTS. PARTICULAR RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) WHEREIN THE SLP FILED BY THE DEPARTMENT WAS DISMISSED BY HON'BLE SUPREME COURT. LEARNED COUNSEL FOR THE ASSESSEE HAD ALSO RELIED ON CASE LAW OF PR. CIT VS. MEETA GUTGUTIA (SUPRA), THE SLP OF WHICH HAS ALSO BEEN DISMISSED BY HON'BLE SUPREME COURT. THOUGH THE SLP IN THE CASE OF KABUL CHAWLA WAS DISMISSED DUE TO LOW TAX EFFECT BUT THE SLP IN THE CASE OF MEETA GUTGUTIA WAS NOT DISMISSED DUE TO LOW TAX EFFECT BUT WAS DISMISSED ON MERITS. FOR THE SAKE OF COMPLETENESS, THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF MEETA GUTGUTIA IS REPRODUCED BELOW: A SEARCH AND SEIZURE UNDER SECTION 132 URNS CONDUCTED IN THE PREMISES OF THE FNP GROUP WHICH COMPRISED OF VARIOUS COMPANIES, PARTNERSHIPS AND PROPRIETORSHIP CONCERNS. THE STATEMENT OF AN EMPLOYEE PG WAS RECORDED ON OATH UNDER SECTION 133A. THE ASSESSEE WAS A DIRECTOR/PARTNER/SHAREHOLDER IN THE GROUP OF COMPANIES/CONCERNS. SHE WAS THE PROPRIETOR OF THE CONCERN FNP. ON THE BASIS OF DOCUMENTS RECOVERED DURING THE SEARCH OPERATION, A NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE. THEREAFTER, A NOTICE AND QUESTIONNAIRE UNDER SECTIONS 143(2) AND 142(1) WERE ALSO ISSUED. THE ASSESSING OFFICER 19 PASSED SEPARATE ORDERS IN RESPECT OF THE ASSESSMENT YEARS 2000-01 TO 2003-04. FOR THE ASSESSMENT YEAR 2004-05, AS IN THE PRECEDING YEARS, THE ASSESSEE HAD CLAIMED DEDUCTION ON ACCOUNT OF FRANCHISEE COMMISSIONS PAID TO VARIOUS PARTIES. THE ASSESSING OFFICER HELD THAT THE ADDRESSES OF THE FRANCHISEES WERE NOT REVEALED AND THAT THERE WERE DISCREPANCIES IN THE DETAILS OF THE ACCOUNTS OF THE FRANCHISEES FILED BY THE ASSESSEE. CONSEQUENTLY, THE FRANCHISEE COMMISSION PAYMENTS CLAIMED BY THE ASSESSEE WERE ADDED BACK TO HER INCOME. FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER ALSO MADE AN ADDITION ON ACCOUNT OF STOCK. THE ASSESSING OFFICER ESTIMATED THE UNDISCLOSED INCOME, ON ACCOUNT OF FRANCHISEE FEE, AT A CERTAIN PERCENTAGE FOR THE ASSESSMENT YEARS 2001-02 TO 2006-07. NO ADDITION WAS MADE FOR THE ASSESSMENT YEAR 2006-07, ALTHOUGH A DISCLOSURE WAS MADE. BEFORE THE COMMISSIONER (APPEALS), THE ASSESSEE PRODUCED ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME-TAX RULES, 1962, WHICH INCLUDED COPIES OF FRANCHISEE AGREEMENTS. A REJOINDER WAS FILED BY THE ASSESSEE. ON ANALYSIS OF THE ADDITIONAL EVIDENCE, THE COMMISSIONER (APPEALS) HELD THAT THE ACCOUNTS OF THE ASSESSEE HAD BEEN TAX AUDITED AND THAT NO ADVERSE REMARKS HAD BEEN MADE BY THE TAX AUDITORS. HE FURTHER HELD THAT THE ASSESSING OFFICER HAD NOT REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE. ACCORDINGLY, HE HELD THAT THE DISALLOWANCE OF THE FRANCHISEE COMMISSIONS PAID WERE UNSUSTAINABLE AND DELETED THE ADDITIONS MADE. HE DELETED THE ADDITIONS MADE ON ACCOUNT OF PAYMENT OF RENT, NON-REFUNDABLE SECURITY, INCOME FROM SELF- CONTROLLED OUTLETS AND REDUCED THE ADDITION MADE ON ACCOUNT OF CLOSING STOCK. HE ALSO DELETED THE ADDITIONS OF UNDISCLOSED INCOME, MADE ON ACCOUNT OF FRANCHISEE FEE, ACCEPTING THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO DISCLOSURE MADE FOR EARLIER YEARS, OR ANY EVIDENCE UNEARTHED DURING THE SEARCH BY THE DEPARTMENT THAT SUCH FRANCHISEE FEE INCOME WAS NOT DISCLOSED BY HER. BOTH THE DEPARTMENT AND THE ASSESSEE FILED APPEALS BEFORE THE APPELLATE TRIBUNAL. ACCEPTING THE CONTENTION OF THE ASSESSEE THAT FOR THE ASSESSMENT YEARS 2000-01 20 TO 2003-04, THERE WAS NO INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH, AND THEREFORE, THE ASSESSMENT ORDERS IN RESPECT OF THOSE YEARS OUGHT TO BE QUASHED, THE APPELLATE TRIBUNAL HELD THAT THE ASSUMPTION OF JURISDICTION UNDER SECTION 153 A FOR THOSE ASSESSMENT YEARS WAS ILLEGAL. IN RESPECT OF THE ASSESSMENT YEAR 2004-05, THE APPELLATE TRIBUNAL HELD THAT THE ADDITIONS MADE WERE BASED ON SEIZED DOCUMENTS AND, THEREFORE, THE ASSESSMENT UNDER SECTION 153A WAS VALID. IT DISMISSED THE APPEALS FILED BY THE DEPARTMENT IN RESPECT OF THE DELETIONS MADE BY THE COMMISSIONER (APPEALS) AND DISMISSED THE ASSESSEE'S APPEAL FOR NON-PROSECUTION. ON APPEALS: HELD, DISMISSING THE APPEALS, (I) THAT IT WAS ONLY IF DURING THE COURSE OF SEARCH UNDER SECTION 132 INCRIMINATING MATERIAL JUSTIFYING THE REOPENING OF THE ASSESSMENTS FOR SIX PREVIOUS YEARS WAS FOUND THAT THE INVOCATION OF SECTION 153 A QUA EACH OF THE ASSESSMENT YEAR WOULD BE JUSTIFIED. 5.2 THE ABOVE JUDGMENT OF HON'BLE DELHI HIGH COURT HAS BEEN UPHELD BY HON'BLE SUPREME COURT AS THE SLP FILED BY REVENUE HAS BEEN DISMISSED WHICH IS REPORTED AT 96 TAXMANN.COM 468. HON'BLE DELHI HIGH COURT IN ABOVE CASE HAS DISTINGUISHED THE CASE LAW OF DAYAWANTI GUPTA VS. CIT 390 ITR 496 (DEL) WHICH LEARNED D. R. HAD HEAVILY RELIED. THE CASE LAW OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA 367 ITR 517, THOUGH SUPPORTS THE CONTENTIONS OF THE REVENUE BUT SINCE HON'BLE SUPREME COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE CASE OF MEETA GUTGUTIA THEREFORE, THE JUDGMENT OF JURISDICTIONAL HIGH COURT WILL NOT HELP THE REVENUE. THE CONTENTION OF THE REVENUE THAT SINCE THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF KABUL CHAWLA AND MEETA GUTGUTIA AS SLP IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION 235 TAXMAN 568 (SC) HAS BEEN ADMITTED IS ALSO OF NO HELP TO REVENUE. THEREFORE, IN VIEW OF THE ABOVE CASE LAWS, WE HOLD THAT IN CASE OF COMPLETED ASSESSMENTS, THE ADDITION CAN BE MADE ONLY ON THE 21 BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. WE HAVE ALREADY HELD THAT NO INCRIMINATING MATERIAL WAS FOUND FROM THE PREMISES OF THE ASSESSEE THEREFORE, THE ADDITIONS CANNOT BE MADE IN THE CASE OF COMPLETED ASSESSMENTS WHICH IN THIS CASE IS APPEAL FOR ASSESSMENT YEAR 2013-14 WHEREIN IN I.T.A. NO.510 THE ASSESSMENT ORDER WAS ALREADY PASSED U/S 143(3) ON 22/03/2016 WHICH IS BEFORE THE SEARCH DATE OF 23/08/2016, COPY OF ASSESSMENT ORDER IS PLACED AT PAGES 51 TO 54 OF THE PAPER BOOK. SIMILARLY IN I.T.A. NO. 515, THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 23/03/2016, THE COPY OF WHICH IS PLACED AT PAGES 54 TO 57 OF THE PAPER BOOK. SIMILARLY IN I.T.A. NO.517 RELATING TO ASSESSMENT YEAR 2013-14, THE ASSESSMENT ORDER U/S 143(3) DATED 30/03/2016, A COPY OF WHICH IS PLACED IN PAPER BOOK AT PAGES 52 TO 56. THEREFORE, THE ASSESSMENTS IN THESE CASES STOOD COMPLETED. LEARNED COUNSEL FOR THE ASSESSEE HAD THOUGH ARGUED THAT THE ASSESSMENT FOR ASSESSMENT YEAR 2015-16 ALSO STOOD COMPLETED BUT IN OUR OPINION THE APPEALS FOR ASSESSMENT YEAR 2015-16 CANNOT BE SAID TO BE COMPLETED AS TIME FOR ISSUE OF NOTICE U/S 143(2) WAS STILL AVAILABLE TO THE DEPARTMENT WHICH WAS UPTO 30/09/2016 WHEREAS THE SEARCH TOOK PLACE ON 23/08/2016 WHICH MEANS THAT THERE WAS TIME AVAILABLE TO THE DEPARTMENT TO ISSUE NOTICE U/S 143(2) THEREFORE, THE APPEALS FILED FOR ASSESSMENT YEAR 2015-16 CANNOT BE SAID TO HAVE COMPLETED. IN VIEW OF THE ABOVE DISCUSSION, GROUND NO. 2 & 7 OF THE APPEALS IN I.T.A. NO.510, 515 & 517 ARE ALLOWED. 7. IN VIEW OF THE ABOVE TRIBUNAL ORDERS, FIRST LEGAL ISSUE RAISED BY ASSESSEE VIDE GROUND NUMBERS 1 & 2 IN I.T.A. NO.630 AND 631, GROUND NUMBERS 1 TO 4 IN I.T.A. NO. 633, 634, 637 AND 638 ARE ALLOWED. SINCE WE HAVE ALLOWED THE ABOVE APPEALS ON GROUND NO. 1 &2, OTHER GROUNDS OF APPEAL ARE NOT ADJUDICATED. IN VIEW OF THE ABOVE, THE APPEALS FILED BY THE ASSESSEE IN I.T.A. NO.630, 631, 633, 634, 637 AND 638 ARE PARTLY ALLOWED. 8. NOW COMING TO APPEALS IN I.T.A. NO.643 AND 678 FOR ASSESSMENT YEAR 2017-18, WE FIND THAT ASSESSMENTS IN THESE YEARS WERE PENDING AS ON THE DATE OF SEARCH AND 22 ADDITIONS COULD HAVE BEEN MADE IN THESE YEARS EVEN WITHOUT HAVING FOUND ANY INCRIMINATING MATERIAL THEREFORE, GROUND NO. 1 & 2 IN THESE APPEALS ARE DISMISSED. 6. THE EXISTENCE OF INCRIMINATING MATERIAL FOR MAKING ADDITIONS U/S 153A IS FURTHER STRENGTHENED FROM THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY [2017] 397 ITR 344 (SC) WHERE HON'BLE SUPREME COURT IN A CASE U/S 153C HAS AGAIN HIGHLIGHTED THE IMPORTANCE OF EXISTENCE OF INCRIMINATING MATERIAL FOR MAKING THE ADDITIONS. THE HON'BLE SUPREME COURT WENT ON TO HOLD THAT THE ASSESSING OFFICER, WHILE RELYING ON THE INCRIMINATING MATERIAL, HAS TO MAKE REFERENCE IN THE SATISFACTION NOTE REGARDING YEAR-WISE EXISTENCE OF INCRIMINATING MATERIAL. SINCE THERE IS AN INTERPLAY BETWEEN SECTION 153A AND SECTION 153C, THE FINDINGS OF HON'BLE SUPREME COURT IN A CASE U/S 153C ARE ALSO APPLICABLE FOR MAKING ADDITIONS U/S 153A OF THE ACT. 7. IN VIEW OF THESE FACTS AND CIRCUMSTANCES AND IN VIEW OF THE JUDICIAL PRECEDENTS, GROUND NO. 2 IN ALL THE APPEALS IS ALLOWED. SINCE WE HAVE ALLOWED THE APPEALS OF THE ASSESSEE ON LEGAL ISSUE, OTHER GROUNDS OF APPEAL DO NOT REQUIRE ANY ADJUDICATION. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE STAND PARTLY ALLOWED. 10. THE TRIBUNAL IN THE ABOVE SAID ORDER HAS CONSIDERED THE ORDERS RELIED ON BY LD. CIT(A) AND AFTER CONSIDERING THOSE HAS ALLOWED SIMILAR GROUNDS RELYING ON THE CASE LAW OF MEETA GUTGUTIA OF HON'BLE SUPREME COURT. THEREFORE FOLLOWING THE ABOVE JUDICIAL PRECEDENTS GROUND NOS. 1 AND 2 IN APPEAL IN IT(SS) NO. 417/LKW/2019 ARE ALLOWED. AS REGARDS OTHER REMAINING APPEALS, WE FIND THAT IN THESE APPEALS ALSO THE ADDITIONS HAS NOT BEEN MADE ON THE BASIS OF ANY INCRIMINATING MATERIAL AND RATHER HAS BEEN MADE ON THE BASIS OF ENTRIES IN THE BOOKS OF ACCOUNTS. THE DATES OF FILING OF RETURNS AS MENTIONED IN THE CHART REPRODUCED EARLIER IN THIS ORDER ARE FOUND TO BE CORRECT FROM THE COPIES OF RETURNS PLACED IN RESPECTIVE PAPER BOOK PAGES. THE PERIOD OF ISSUE OF NOTICE U/S. 143(2) IN THE ABOVE CASES EXPIRED ON 30.09.2012 AND 30.09.2013 RESPECTIVELY WHEREAS THE SEARCH TOOK PLACE 23 ON 31.08.2015 THEREFORE ASSESSMENTS IN THESE CASES ALSO STOOD COMPLETED BEFORE THE DATE OF SEARCH AND THEREFORE GROUND NOS. 1 AND 2 IN THESE APPEALS IS ALSO ALLOWED. 11. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, GROUND NOS. 1 AND 2 IN ALL THE APPEALS ARE ALLOWED. REST OF GROUNDS HAS NOT BEEN ADJUDICATED AS THEY HAVE BECOME INFRUCTUOUS. 12. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 14 /09/2021) SD/- SD/- (A.D. JAIN) (T.S. KAPOOR) VICE PRESIDENT ACCOUNTANT MEMBER AKS DTD. 14 /09/2021 COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR