Shri Dahyabhai Prahladbhai Patel, Kadi V. The ACIT.,Cent.Circle-1(4), Ahmedabad

ITSSA 578/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0856 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 13-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 24-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Business expenditure; Search and seizure; Validity of assessment; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 234B; 37(1); 148; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) IT(SS)A NO(S) ASST.YEARS (AYS) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 578/AHD/2011 2003-04 SHRI DAHYABHAI PRAHLADBHAI PATEL 71/72, SARDAR SOCIETY NR.BHANUPURA KADI 382 715 PAN:ABUPP 4535 A (ASSESSEE ) THE ASST.CIT CENTRAL CIRCLE-1(4) AHMEDABAD ( REVENUE ) 2. 579/AHD/2011 2004-05 ASSESSEE REVENUE 3. 580/AHD/2011 2005-06 ASSESSEE REVENUE 4. 581/AHD/2011 2006-07 ASSESSEE REVENUE 5. 582/AHD/2011 2007 - 08 ASSESSEE REVENUE / APPELLANT BY : SHRI VIJAY RANJAN, AR / RESPONDENT BY : SHRI SHANKAR LAL MEENA,CIT DR !'# $ / DATE OF HEARING 13/07/2015 %&' $ / DATE OF PRONOUNCEMENT 27/08/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS BUNCH OF FIVE APPEALS BY THE ASSESSEE ARE DIRE CTED AGAINST THE COMMON ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEA LS)-I, AHMEDABAD [CIT(A) IN SHORT] DATED 12/08/2011 PE RTAINING TO IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 2 - ASSESSMENT YEARS (AYS) 2003-04 TO 2007-08. SINCE C OMMON ISSUES AND FACTS ARE INVOLVED IN THESE APPEALS, THE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE TAKE UP THE ASSESSEES APPEAL IN IT(SS)A N O.578/AHD/2011 FOR AY 2003-04 AS A LEAD CASE SINCE THE FACTS ARE I DENTICAL IN ALL THESE APPEALS OF THE ASSESSEE. THE FOLLOWING COMMON GROU NDS, EXCEPT QUANTUM IN APPEAL(S), HAVE BEEN RAISED BY THE ASSE SSEE:- (EXTRACTED FROM IT(S)A NO.578/AHD/2011 AY 2003-04 ) GROUNDS OF APPEAL (WITHOUT PREJUDICE TO EACH OTHER) 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE CIT(A) ERRED IN DISMISSING THE ASSESSEE'S APPEAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE CIT(A) ERRED IN NOT ACCEPTING THE ASSESSEE'S PLEA THAT IT WAS NOT AT AL L A FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 153A AND HE FURTHER ERRED IN UPHOLDING THE VALIDITY OF IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A, DATED 21 ST DECEMBER, 2010. 3. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN EMBARKING UPON THE PROCESSING AND SCRUTINY OF THE ASSESSMENT IN A FASHION WHICH WAS PERMISSIBLE IN A REGULAR ASSESSMENT UNDER SECTION 143(3) BUT IN THIS PARTICULAR CASE IT WAS NOT PERMISSIBLE UNDER SECTION 153A/153C. 4. WITHOUT PREJUDICE, THE CIT(A) SHOULD HAVE HELD THAT IN AN ASSESSMENT MADE IN PURSUANCE OF SECTION 153A, NONE OF THE TWO ADJUSTME NTS MADE IN THE AFORESAID ASSESSMENT ORDER WERE REQUIRED TO BE MADE. 5. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN UPHOLDING TOTAL DISALLOWANCE OF CAR EXPENS ES INCURRED BY THE ASSESSEE FOR IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 3 - SAFEGUARDING AND ENHANCING HIS SHARE OF INCOME FROM THE FIRM(S) IN WHICH HE WAS A PARTNER. 6. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CLT(A) ERRED IN UPHOLDING ASSESSING OFFICER'S PRESUMPTION THAT SOME EXPENDITURE ON AGRICULTURAL OPERATIONS WAS INCURRED OVER AND ABOVE THE EXPENDITURE SHOWN IN THE ACCOUNTS AND HE FURTHER ERRED IN UPHOLDING THE PRES UMPTION OF THE ASSESSING OFFICER THAT SUCH DIFFERENCE IN EXPENDITURE WAS INCURRED FR OM ASSESSEE'S INCOME WHICH WAS LIABLE TO TAX AND HE FURTHER ERRED IN UPHOLDING AN ADDITION OF RS. 2,23,861, AS IN FACT IT CANNOT BE MADE EVEN UNDER SECTION 69C. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE CIT(A) ERRED IN NOT ALLOWING RELIEF TO THE ASSESSEE IN REGARD TO INTERE ST UNDER SECTION 234B AND 234D. 8. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AM END AND/OR WITHDRAW ANY GROUND OR GROUNDS EITHER BEFORE OR DURING THE COURSE OF HEARI NG OF THE APPEAL. 3. BRIEFLY STATED FACTS ARE THAT A SEARCH U/S.132 O F THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT IN THE CASE OF RAJA GROUP OF KADI, DIST.MEHSANA ON 05/02/2009. A WARRANT OF AUTHORIZATION U/S.132 WAS ALSO ISSUED TO THE CASE O F THE ASSESSEE. ACCORDINGLY, A NOTICE U/S.153A WAS ISSUED ON 17/08/ 2009 BY THE AO AND IN RESPONSE THERETO, THE ASSESSEE FILED RETURN OF I NCOME ON 04/12/2009 DECLARING TOTAL INCOME OF RS.8,57,350/- THE ASSES SING OFFICER (AO IN SHORT) FRAMED THE ASSESSMENT U/S.143(3) R.W.S.153A OF THE ACT VIDE ORDER DATED 21/12/2010; THEREBY THE AO MADE ADDITION OF R S.62,622/- ON ACCOUNT OF DISALLOWANCE OF EXPENDITURE BEING PERSON AL IN NATURE AND ALSO MADE ADDITION OF RS.2,23,861/- ON ACCOUNT OF THE EX PENDITURE TOWARDS AGRICULTURAL INCOME. THE ASSESSEE FEELING AGGRIEVE D BY THE ORDER OF THE AO, PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO A FTER CONSIDERING THE IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 4 - SUBMISSIONS OF THE ASSESSEE, PARTLY ALLOWED THE APP EAL FOR AY 2003-04 (DISMISSED THE APPEALS FOR AYS 2004-05 TO 2007-08). AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS NOW IN APPE AL(S) BEFORE US. 4. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ASSESSMENT ORDERS FRAMED FOR THE AYS 2003-04 TO 200 7-08 DESERVES TO BE QUASHED ON THE GROUND THAT IN THESE YEARS ASSESSMEN TS SO FRAMED WAS NOT ON THE BASIS OF INCRIMINATING MATERIAL. AS NO SUCH MATERIAL WAS FOUND AT THE TIME OF SEARCH. HE SUBMITTED THAT THIS ISSUE OF LEGALITY OF ASSESSMENT U/S.153A OF THE ACT BE DECIDED FIRST BEFORE DECIDIN G THE OTHER GROUNDS ON MERITS. HE SUBMITTED THAT THE ISSUE IS SQUARELY CO VERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE ITAT MUMBAI BENCH (SPECIAL BENCH) RENDERED IN THE CASE OF ALL CARGO GLOBAL LOG ISTICS LTD. VS. DY.CIT, CENTRAL CIRCLE-44, REPORTED AT (2012) 23 TA XMANN.COM 103(MUM.)(SB)::137 ITD 287, DATED 06/07/2012. HE F URTHER SUBMITTED THAT THE VIEW OF THE SPECIAL BENCH HAS BEEN AFFIRME D BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTA L WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. REPORTED AT (2015 58 TAXMANN.COM 78 (BOMBAY). THE LD.COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE AO HAS NOWHERE STATED THAT THE IMPUGNED ADDITIONS HAVE BEE N MADE ON THE BASIS OF THE MATERIAL FOUND DURING THE COURSE OF SEARCH. THEREFORE, THE APPEAL WAS TAKEN UP FOR HEARING TO DECIDE THE LEGALITY OF THE ASSESSMENT PASSED U/S.153A OF THE ACT. FURTHER, THE LD.COUNSEL FOR T HE ASSESSEE REITERATED THE SUBMISSIONS MADE IN THE STATEMENT OF FACTS. IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 5 - 4.1. ON THE CONTRARY, LD.CIT-DR SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THERE IS NO S UCH REQUIREMENT UNDER THE PROVISION OF SECTION 153A THAT THE ASSESSMENT S HOULD BE BASED ONLY ON THE INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. HE ALSO SUBMITTED THAT WHAT IS NOT PROVIDED BY THE ACT CANN OT BE READ INTO. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO IN THE ASSESSMENT ORDER HAS MADE DISALLOWANC ES IN PARAS-3 & 4 OF HIS ORDER ARE AS UNDER:- 3. PERSONAL EXPENSES THE ASSESSEE HAS EARNED BUSINESS INCOME FROM SHARE OF PROFIT AND INTEREST ON CAPITAL FROM M/S. PATEL OIL MILL & GINNING FACTORY AND M/S. P. RAJA COTTON INDUSTRIES DURING THE YEAR CONSIDERATION. ON VERIFICATION OF S TATEMENT OF INCOME FILED WITH THE RETURN OF INCOME BY THE ASSESSEE ON 04.12.2009 IT I S NOTICED THAT THE ASSESSEE HAS CLAIMED THE FOLLOWING EXPENSES UNDER THE HEAD BUSIN ESS AND PROFESSION. I) DEPRECIATION ON CAR RS.57500 II) INSURANCE EXP. RS. 1922 III) MOTOR CAR PETROL EXP. RS. 3200 TOTAL RS.62622 DURING THE COURSE OF SCRUTINY PROCEEDINGS THE ASSES SEE WAS REQUESTED TO JUSTIFY THE ALLOWABILITY OF THE AFORESAID EXPENSES AS BUSINESS EXPENSES ALONGWITH NECESSARY DOCUMENTARY EVIDENCES. IN REPLY THE ASSESSEE COULD NEITHER JUSTIFY THE SAME NOR PRODUCED ANY EVIDENCES. SINCE THE ASSESSEE HAS NOT INCURRED THE AFORESAID EXPENSES WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF EARNING BU SINESS INCOME THEY CANNOT BE ALLOWED AS PER THE PROVISIONS OF SECTION 37(1) OF T HE INCOME TAX ACT. THEREFORE, THE AFORESAID EXPENSES OF RS.62622/- ARE DISALLOWED TREATING THEM OF PERSONAL NATURE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. PENA L PROCEEDING U/S.271(L)(C) OF THE INCOME TAX ARE INITIATED SEPARATELY FOR COMMITTING DEFAULT WITHIN THE MEANING OF THE SECTION BY THE ASSESSEE. IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 6 - 4. AGRICULTURE INCOME DURING THE YEAR THE ASSESSEE HAS SHOWN GROSS AGRICU LTURE INCOME OF RS.1119304/- AND CLAIMED EXPENSES OF RS.50000/- TO HAVE INCURRED THEREON. DURING THE COURSE OF PROCEEDINGS THE ASSESSEE WAS REQUESTED TO PRODUCE C OPIES ABSTRACTS OF 7/12 AND OF BILLS/VOUCHERS IN RESPECT OF THE INCOME AND JUSTIFY THE EXPENSES INCURRED AT LOWER SIDE AS COMPARED TO THE AGRICULTURE INCOME. IN REPLY THE ASSESSEE VIDE HIS SUBMISSION FILED ON 26.11.2010, PRODUCED ABSTRACTS OF 7/12 AND COPIE S OF BILLS FOR AGRICULTURE INCOME FROM VARIOUS PARTIES. HOWEVER HE FAILED TO JUSTIFY THE EXPENSES INCURRED AT LOWER SIDE. ACCORDINGLY IT WILL BE REASONABLE TO ESTIMATE THE E XPENSES INCURRED @20% OF THE AGRICULTURE INCOME. THEREFORE THE ASSESSEE MIGHT HA VE INCURRED THE DIFFERENCE OF RS. 223861/- (20% OF RS.1119304 LESS EXPENSES OF RS. 50000/- ALR EADY CLAIMED) FROM HIS UNDISCLOSED INCOME FOR THE YEAR UNDER CONSIDERATION AND THEREFORE THE SAME IS ADDED TO THE TOTAL INCOME. PENALTY PROCEEDINGS U/S. 271(1) (C) OF THE INCOME TAX ACT ARE INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 5.1. BEFORE THE LD.CIT(A), THE ARGUMENTS OF THE ASS ESSEE WERE IN THE FOLLOWING MANNER:- 1. REGARDING ORDER BEING BAD IN LAW 1.1 AT THE VERY OUTSET, THE APPELLANT VEHEMENTL Y CHALLENGES THE VALIDITY OF THE ASSESSMENT MADE U/S 153A OF THE INCOME-TAX ART. THE REASSESSMENT FRAMED BY THE ID. ASSESSING OFFICER U/S 153A IS BAD IN LAW AND IS, TH EREFORE, LIABLE TO BE QUASHED. 1.2 THE APPELLANT SUBMITS THAT DURING THE COURS E OF SEARCH NO INCRIMINATING MATERIALS IN THE FORM OF BOOKS OF ACCOUNTS/DOCUMENT S OR ANY UNEXPLAINED MONEY, BULLION, JEWELLERY OR ANY OTHER VALUABLE ASSET WAS FOUND. THIS PROVES THAT AS A RESULT OF THE SEARCH CARRIED OUT U/S 132 IN THE CASE OF TH E APPELLANT, NO MATERIAL OR EVIDENCE WAS FOUND TO JUSTIFY REASSESSMENT FOR THE PRESENT Y EAR UNDER CONSIDERATION. THIS IS FURTHER EVIDENT FROM THE FACT THAT THE ADDITION MAD E UNDER THE REASSESSMENT PROCEEDINGS U/S 153A, IS PART OF THE REGULAR RETURN OF INCOME AND WAS NOT CONNECTED WITH ANY SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH. IT IS THEREFORE SUBMITTED THAT THE ID. ASSESSING OFFICER HAS SIMPLY GONE BEYO ND THE SCOPE OF THE PROVISIONS OF SECTION 153A OF THE ACT WHICH COMES INTO OPERATION ONLY AFTER A SEARCH HAS BEEN CARRIED OUT U/S 132 OF THE ACT AND TO ASSIGN POWER TO THE INCOME-TAX AUTHORITIES FOR A SPECIFIC PURPOSE ONLY I.E. FOR UNEARTHING CONCEALED INCOME. IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 7 - THE FACT WHICH MAY REQUIRE APPRECIATION AT THIS STA GE IS THAT EVEN IN THE ASSESSMENT ORDER FRAMED U/S.153A FOR AFORESAID ASSESSMENT YEAR THERE IS NO MENTION AT ALL OF ANY SEIZED MATERIAL OR OF ANY STATEMENT RECORDED DURING SEARCH PROCEEDINGS. IT IS, THEREFORE, SUBMITTED THAT ON ACCOUNT OF THIS SPECIA L AND VERY IMPORTANT FACTUAL MATRIX OF THIS CASE, THE PROVISIONS OF SECTION 153A WERE N OT APPLICABLE. CONSEQUENTIALLY THE ASSESSMENT FRAMED U/S.153A WAS BAD IN LAW. THE APPE LLANT ON THIS ASPECT, BEGS TO RELY ON FOLLOWING: (I) DECISION OF KOLKATTA TRIBUNAL IS CASE OF LMJ INTERN ATIONAL LTD.VS DCIT (2008)119 TTJ (KOL) 214. (II) DECISION OF ITAT 'A' BENCH DECISION DATED 16. 1.2009 IN DEPARTMENTAL APPEALS NO. 3400, 3401 & 3402/AHD/2008 IN MEGHMANI INDUSTRIES LTD. FOR A.YS. 2002-03, 2003-04 AND 2004-05. (III) DECISION OF DELHI ITAT IN CASE OF ANIL KUMA R BHATIA WHEREIN DELHI ITAT VIDE ITS ORDER DATED 01/01/2010 IN ITA NO. 2660 TO 2665/DEL/2009 AS HELD AS UNDER: THE POWER GIVEN BY THE 1ST PROVISO TO 'ASSESS' INCO ME FOR SIX ASSESSMENT YEARS HAS TO BE CONFINED TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND CANNOT INCLUDE ITEMS WHICH ARE DISCLOSED IN THE ORI GINAL ASSESSMENT PROCEEDINGS. (IV) DECISION OF MUMBAI ITAT IN CASE OF ANIL P KHIMANI VS DCIT WHEREIN HON'BLE MUMBAI ITAT VIDE ITS ORDER DATED 16/07/2010 IN ITA NO. 2855 TO 2860/MUM/2008 HELD AS UNDER: INCOME TAX - SECTION 153A - SEARCH CONDUCTED AT THE PREMISES OF THE ASSESSEE - NOTICE U/S 153A ISSUED - ASSESSEE FILES RETURN DECLARING SAME INCOME AS DECLARED IN ORIGINAL RETURN - AO MAKES AD DITION ON ACCOUNT OF LOW WITHDRAWAL AND FROM OPENING BALANCE IN CAPITAL ACCOUNT - CIT(A) PARTLY ALLOWS THE APPEAL - ASSESSEE ARGUES BEFORE T HE TRIBUNAL THAT SINCE NO MATERIAL IS FOUND AS A RESULT OF SEARCH NO ADDIT ION COULD BE MADE - HELD THAT THE ADDITIONS MADE BY THE AO ARE NOT BAS ED ON THE MATERIAL FOUND AS A RESULT OF SEARCH AND HENCE THE SAME ARE DELETED - ASSESSEE'S APPEAL ALLOWED. (V) DECISION OF MUMBAI ITAT IN CASE OF HELIOS FOOD ADDITIVES P LTD. VS. DCIT WHEREIN HON'BLE MUMBAI ITAT VIDE ITS ORDER DAT ED 16/07/2010 IN ITA NO.3900 & 3901/MUM/2009 HELD AS UNDER: IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 8 - 'IF THE ASSESSMENT U/S 153A IS EQUATED WITH THE REG ULAR ASSESSMENT TO BE MADE U/S 143(3) THEN THAT IS AGAINST THE LEGISLA TIVE SPIRIT AS IN THE CASE OF SEARCH AND SEIZURE OPERATION, THE INCOME TA X AUTHORITIES HAVE PHYSICAL ACCESS TO THE ASSESSEE'S PLACES; BUSINESS OR RESIDENTIAL PLACES AND THE REVENUE CAN GRAB THE EVIDENCE AGAINST THE A SSESSEE IN RESPECT OF THE UNDISCLOSED INCOME IF ANY. IF THERE IS NO EVIDENCE FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION THEN NO FORCIBLE ADDITION OR DISALLOWANCE CAN BE MADE IN RESPECT OF ANY DEDUC TION OR CLAIM OF THE ASSESSEE WHICH OTHERWISE MADE IN REGULAR RETURN IN RESPECT OF WHICH NO ASSESSMENT PROCEEDINGS PENDING.' IN VIEW OF THE ABOVE, IT IS SATED THAT THE ASSESSME NT MADE BY THE ID. ASSESSING OFFICER U/S 153A IS BAD IN LAW AND DESERVES TO BE Q UASHED. 5.2. HOWEVER, THE LD.CIT(A) REJECTED THE CONTENTION S OF THE ASSESSEE IN PARA-2.1 OF HIS ORDER BY OBSERVING AS UNDER:- 2.1 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT OR DER AND SUBMISSION FILED BY THE APPELLANT. THE APPELLANT HA S MAINLY ARGUED THAT WHEN NO INCRIMINATING MATERIAL HAVE BEEN FOUND DURI NG THE COURSE OF SEARCH, PROCEEDING. U/S.153A CANNOT BE INITIATED. I HAVE CONSIDERED PROVISIONS OF THE SECTION 153A OF THE/ACT AND WHEN SEARCH IS CONDUCTED AFTER 31 ST MAY, 2003, DETECTION OF UNDISCLOSED INCOME IS NOT NECESSARY FOR TAKING ACTION UNDER SECTION 153A OF THE ACT. IT IS EXPLICITLY STATED IN SECTION 153A THAT ALL THE PROCEDURES LAID DOWN UNDE R SECTION 142, 143 AND OTHER RELATED APPLICABLE PROVISIONS WOULD APPLY ; HENCE, ADDITION CAN BE MADE EVEN IF IT IS NOT RELATED TO MATERIAL F OUND DURING THE COURSE OF SEARCH. FURTHER, ON THIS VERY ISSUE, HON'BLE I.T .A.T.AHMEDABAD BENCH CONSIDERING MAJORITY DECISIONS ON THIS ISSUE WHICH HAVE BEEN RELIED UPON BY THE APPELLANT IN CASE OF RAJESH HIRA LAL THAKKAR VS. DCIT (ITA NO.3218, 3219, 3220, 3221, 3222/AHD/2007) VIDE ORDER DATED30 TH NOVEMBER, 2010 AFTER CONSIDERING THE DECISION OF S HAYMLATA KSUSHIK V/S ACIT 114 ITD 305 HAS HELD AS UNDER: 'HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GON E THROUGH THE ORDERS OF AUTHORITIES BELOW. FOR ASSUMPTION OF JURISDICTION IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 9 - U/S. 153AOF THE L.T. ACT ONLY REQUIREMENT IS THAT P ERSON CONCERNED SHOULD BE SEARCHED. THE REQUIREMENT OF DE TECTION OF UNDISCLOSED INCOME ON THE BASIS OF SEIZED MATERIAL IS NOT MANDATORY WHEREAS THESE MAY BE MANDATORY FOR ASSUMP TION OF JURISDICTION U/S. 153C OF THE IT. ACT, 1961. ADMITT EDLY, IN THE CASE BEFORE US ASSESSEE SHRI RAKESH H. THAKKAR WAS SEARCHED U/S. 132 ON 9-2-2006. WE THEREFORE, FOUND CONSIDERA BLE FORCE IN THE SUBMISSIONS MADE BY THE ID. D.R. THAT ONCE THE SEARCH IS CONDUCTED, THE ASSESSING OFFICER HAS NO OPTION BUT TO MAKE ASSESSMENT OR RE-ASSESSMENT FOR EACH OF THE SIX ASS ESSMENT YEARS UNDER THE NEW PROCEDURE AS PROVIDED U/S.153A OF THE IT. A CT. IN CASE, FOR SOME OF THE ASSESSMENT YEARS, ASSESSMENT HAS AL READY BEEN COMPLETED IN THAT EVENT THE ASSESSING OFFICER SHALL ALSO MAKE FRESH ASSESSMENT UNDER SECTION 153A OF THE ACT. EVE N THE NEW PROCEDURE WOULD NOT AFFECT THE PENDING APPEAL AGAIN ST THE ORIGINAL ASSESSMENT. THE ITAT, 'C' BENCH, DELHI IN THE CASE OF MS. SHYAM LATA KAUSHIK -VS.- ACT, CENTRAL CIRCLE, F ARIDABAD REPORTED IN [2008] 114 ITD 305(DELHI) HELD AS UNDER :- THE CONTENTIONS OF THE ASSESSEE COULD NOT BE ACCEP TED. THERE IS NO REQUIREMENT FOR AN ASSESSMENT MADE UNDER SECTION 153A BEING BASED ON ANY MATERIAL SEIZED IN THE COURSE OF SEARCH. FURTHER, UNDER THE SECOND PROVISO TO SECTION 153A, PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS IN RELATION TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN SECTION 153A(B) SHALL ABATE. THUS TH E ASSESSING OFFICER GETS JURISDICTION FOR SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A(B) FOR MAKING AN ASSESSMENT OR REASSES SMENT. IT WAS NOT THE COMPLAINT OF THE ASSESSEE THAT ANY INCO ME, WHICH WAS ALREADY SUBJECTED TO ASSESSMENT UNDER SECTION 1 43(3) OR UNDER SECTION 148 COMPLETED PRIOR TO THE SEARCH IN RESPECT OF SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A(B) AND IN THE SECOND PROVISO TO SECTION 153A HAD ALSO BEEN INCLUD ED IN THE ASSESSMENT FRAMED UNDER SECTION 153A. IN SUCH CIRCU MSTANCES, THE PLEA OF THE ASSESSEE COULD NOT BE ACCEPTED'. IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 10 - 8.1. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE NAMELY, SHRI RAKESH HIRALAL THAKKAR WAS SEARCHED U/S. 132 ON 9-2 -2006. ASSESSING OFFICER FRAMED THE ASSESSMENT U/S.153A FO R SIX ASSESSMENT YEARS I.E. FROM A.Y. 1999-2000 TO 2005-0 6. THE ASSESSEE IS NOT QUESTIONING THE ASSUMPTION OF JURIS DICTION U/S. 153A OF IT. ACT FOR THE ASSESSMENT YEAR 2004-05 AND 2005 -06. IN THIS CASE, A PANCHNAMA-HAS BEEN PREPARED, THEREF ORE, IN OUR OPINION IRRESPECTIVE OF THE FACT WHETHER VALUABLE A RTICLE, ETC., OR DOCUMENTS SEIZED CONTAINING AN UNDISCLOSED INCOME O R NOT IS IMMATERIAL. IN SUCH A SITUATION IT IS MANDATORY FOR THE A.O. TO ISSUE NOTICE U/S. 153A (A) FOR FILING THE RETURNS OF INCO ME AND FRAME THE ASSESSMENTS IN TERMS OF SECTION 153A. THE DECISION OF ITAT C- BENCH DELHI IN THE CASE OF MS. SHYAMLATA KAUSHIK (S UPRA) IS SQUARELY APPLICABLE TO FACTS OF ASSESSEE'S CASE. WE , THEREFORE, DECLINE TO INTERFERE. CONSEQUENTLY GROUND NO.1 TO 4 FOR THE ASSESSMENT YEARS 1999-2000 TO 2003-04 AND GROUND NO .9 FOR THE ASSESSMENT YEAR 2002-03 OF ASSESSEE'S CROSS OBJECTI ON ARE REJECTED.' RESPECTFULLY FOLLOWING THE AFORESAID DECISION, RELA TED GROUNDS OF APPEAL ARE DISMISSED. 5.3. THE HONBLE ITAT MUMBAI BENCH (SPECIAL BENCH) IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD.(SUPRA), AFTER EXAMI NING THE ENTIRE LAW, HELD AS UNDER:- 58. THUS, QUESTION NO.1 BEFORE US IS ANSWERED AS UNDER: (A) IN ASSESSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON H IM U/S.153A IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 11 - FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY; (B) IN OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S.153A WILL BE MADE ON T HE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE CONTEXT OF REL EVANT PROVISIONS MEANS (I) BOOKS OF ACCOUNT, OTHER DOCU MENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN T HE COURSE OF ORIGINAL ASSESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 5.4. IN THE PRESENT CASE, THE ASSESSMENT PERTAINING TO ASSESSMENT YEARS 2003-04 TO 2007-08 HAD NOT BEEN ABATED. THIS FACT IS NOT DISPUTED BY THE REVENUE. THEREFORE, IN THESE YEARS, THE ASS ESSMENT OUGHT TO HAVE BEEN MADE ON THE BASIS OF INCRIMINATING MATERIAL AS PER THE DECISION OF THE HONBLE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DY.CIT, CENTRAL CIRCLE-44(SUPRA). THE REVENUE HAS NOT POINTED OUT WHAT WAS THE INCRIMINATING MATERIAL AVAILABLE ON T HE BASIS OF WHICH THE IMPUGNED ASSESSMENT ORDERS HAD BEEN FRAMED. IN THE ABSENCE OF SUCH MATERIAL, WE CANNOT SUSTAIN THE IMPUGNED ASSESSMENT IN VIEW OF THE BINDING PRECEDENT AS RELIED UPON BY THE ASSESSEE. THEREFORE, WE HEREBY QUASH THE ASSESSMENT ORDERS PERTAINING TO AYS 2003- 04 TO 2007-08 AS CHALLENGED BEFORE US IN THIS BUNCH OF APPEALS. THU S, GROUND NO.1 OF ASSESSEES APPEAL(S) IS ALLOWED. IT(SS)A NOS.578 TO 582 /AHD/2011 SHRI DAHYABHAI PRAHLADBHAI PATEL VS. ACIT ASST.YEARS 2003-04 TO 2007-08 RESPECTIVELY - 12 - 5.5. THE OTHER GROUNDS ARE BEING NOT ADJUDICATED AS THE ASSESSMENT IS QUASHED ON THE ISSUE OF LEGALITY. 6. IN THE COMBINED RESULT, ALL THE FIVE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 27 TH DAY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 08 /2015 ,$..! , '.!../ T.C. NAIR, SR. PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ./.01 2 / CONCERNED CIT 4. 2 ( ) / THE CIT(A)-I, AHMEDABAD 5. 3'4 !01 , $ 01 ' , / / DR, ITAT, AHMEDABAD 6. 467 8# / GUARD FILE. / BY ORDER, 3 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 19.8.15 (DICTATION-PAD 9+ P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..129.8.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.27.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER