Mr. Purushottam Das Mimani, Kolkata V. DCIT, Central Circle - V, Kolkata, Kolkata

ITSSA 60/KOL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0447 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 13-04-2011
• Court: TRIBUNAL
• Department Lawyers: DR SWETABH SUMAN
• Assessee Lawyers: S K TULSIYAN
• Keywords: Unexplained investment; Gift; Revision of order; Search and seizure; Question of law; Deemed dividend; Revised return; Reassessment proceedings
• Section: 143(3); 153A; 139(5); 27; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER IT(SS)A NOS.60 TO 62/KOL/2011 ASSESSMENT YEARS: 2006-07 TO 2008-09 MR. PURUSHOTTAM DAS MIMANI, FLAT NO.11, 4 TH FLOOR, 32, ROWLAND ROW, KOLKATA-700 020 [PAN: AFAPM3140A] / V/S . DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-V KOLKATA /APPELLANT .. /RESPONDENT IT(SS)A NOS.73 TO 76/KOL/2011 ASSESSMENT YEARS: 2002-03 TO 2005-06 DCIT, CENTRAL CIRCLE-V, KOLKATA / V/S . MR. PURUSHOTTAM DAS MIMANI /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI S.K.TULSIYAN, ADVOCATE /BY REVENUE DR. SWETABH SUMAN, CIT-DR /DATE OF HEARING 27-08-2014 ! /DATE OF PRONOUNCEMENT 17-10-2014 ' ' ' ' /O R D E R PER BENCH:- ALL THESE THREE APPEALS BY ASSESSEE ARE ARISING OU T OF SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, KO LKATA IN APPEALS NOS.364,363 & 362/CIT(A),C-I/CC-V/09-10 BY DIFFERENT DATES I.E. 0 7-01-2011, 10.01.2011 AND 07-01- 2011 RESPECTIVELY. ALL THESE FOUR APPEALS BY REVENU E ARE ARISING OUT OF SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I , KOLKATA IN APPEALS NOS.368 & IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 2 367/CIT(A),C-I/CC-V/09-10 BOTH DATED 05-01-2011 RES PECTIVELY AND APPEAL NOS. 366 & 365/CIT(A),C-I/CC-V/09-10 BOTH DATED 06-01-2011 R ESPECTIVELY. ASSESSMENTS WERE FRAMED BY DCIT, CC-V, KOLKATA U/S. 143(3)/153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ERS DATES 31-12-2009 RESPECTIVELY. FIRST WE TAKE UP ASSESSEES APPEALS IN IT(SS)A NOS. 60-62/KOL/2011. 2. THE FIRST COMMON ISSUE IN IT(SS)A NOS. 60 & 61/K OL/2011 OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF DEEMED DIVIDEND. FOR THE SAKE OF CONVEN IENCE, WE REPRODUCE FOLLOWING GROUND NOS. 2 AND 3 OF IT(SS)A NO. 60/KOL/2011:- 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF AN AMOUNT OF RS.5,00,833 /- ON ACCOUNT OF ALLEGED LOAN TAKEN FROM M/S. MIMA FLOUR MILLS (P) LTD., AS DEEM ED DIVIDEND U/S. 2(22)(E) OF THE INCOME TAX ACT, 1961. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CITA) ERRED IN CONFIRMING THE ADDITION OF AN AMOUNT OF RS.16,79,938/- ON ACCO UNT OF ALLEGED LOAN TAKEN FROM M/S. GANESH WHEAT PRODUCTS LTD., AS DEEMED DIVIDEN D U/S. 2(22)(E) OF THE INCOME- TAX ACT, 1961. 3. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS MADE ADDITION OF ADVANCES TAKEN FROM MIMA FLOUR MIL LS PVT. LTD. AT RS.5,00,833/- AND FROM GANESH WHEAT PRODUCTS PVT. LTD. AT RS.16,79,93 8/-. SIMILARLY, IN AY 2007-08 ASSESSEE RECEIVED LOAN OF RS.19,26,577/- FROM GANES H WHEAT PRODUCTS PVT. LTD. AND RS. 792/- FROM MIMA FLOUR MILLS PVT. LTD. THE AO M ADE ADDITION OF DEEMED DIVIDEND BY INVOKING THE PROVISIONS OF SECTION 2(22)(E) OF T HE ACT FOR THESE TWO AYS 2006-07 AND 2007-08. FOR THIS, HE OBSERVED THAT THERE WAS ACCUMULATED PROFITS FOR A SUM OF RS.7,07,047/- AND RS.33,86,069/- FOR GANESH WHEAT P RODUCTS LTD. AND MIMA FLOUR MILLS PVT. LTD. RESPECTIVELY FOR AY 2006-07. SIMIL ARLY, ACCUMULATED PROFITS FOR AY 2007-08 WAS AT RS.55,71,708/- OF GANESH WHEAT PRODU CTS PVT. LTD. AND RS.17,74,666/- OF MIMA FLOUR MILLS PVT. LTD. THE AO REASONED THAT THE ASSESSEE BEING HOLDER OF MORE THAN 10% OF VOTING POWER IN THE SAID COMPANY, THE LOAN RECEIVED FROM THE SAID COMPANY COMES WITHIN THE PURVIEW OF SECTION 2(22)(E ) OF THE ACT AND HE TREATED THE ADVANCES AS DEEMED DIVIDEND AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 3 AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO CONFIRMED THE ACTION OF AO EXACTLY ON SAME REASONING. AGGRIEVED, NOW ASSES SEE IS IN APPEAL BEFORE TRIBUNAL. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE GONE THROUGH THE FACTS OF THE CAS E AND FOUND FROM THE PERUSAL OF LEDGER ACCOUNT OF ASSESSEE IN THE BOOKS OF ACCOUNT OF GANESH WHEAT PRODUCTS (P) LTD., THE LENDER COMPANY, IT IS SEEN THAT AS ON THE FIRST DAY OF THE RELEVANT ACCOUNTING YEAR 2005- 06 (A.Y. 2006-07) OPENING BALANCE IS AT RS.28 ,07,584/-. THEREAFTER, ON SEVERAL DATES DURING THE ENTIRE FINANCIAL YEAR THERE WERE S EVERAL TRANSACTIONS THROUGH CHEQUES AND SOME IN CASH BY EITHER PARTIES, I.E. THE ASSESS EE AND THE LOAN GIVING COMPANY, RESULTING IN SHIFTING BALANCES. ON MANY OCCASIONS T HE BALANCE WAS IN FAVOUR OF THE ASSESSEE AND ON SOME OTHER OCCASIONS THE BALANCE WA S IN FAVOUR OF GANESH WHEAT PRODUCTS (P) LTD. THE LEDGER OF THE ASSESSEE FURTHE R REVEALS THAT NO PAYMENT BY LOAN CREDITOR IS FOLLOWED BY A REPAYMENT BY THE LOAN DEB TOR AND, IN FACT, THE PAYMENTS BY THE ASSESSEE AND GANESH WHEAT PRODUCTS (P) LTD. ARE INDEPENDENT OF ONE ANOTHER. NO INTEREST WAS CHARGED BY EITHER SIDE FOR ADVANCING M ONEY ON MUTUALITY INASMUCH AS THE LOAN ACCOUNT WAS A CURRENT ACCOUNT IN NATURE. IT IS THUS EVIDENT THAT THERE WERE RECIPROCAL DEMANDS BETWEEN THE PARTIES AND THUS MUT UAL IN CHARACTERISTIC. AT THE CLOSE OF ACCOUNTING YEAR AS ON 31-03-2006, DEBIT BALANCE STOOD AT A SUM OF RS.18,87,522/- WHICH WAS DULY REFLECTED IN THE BALANCE SHEET UNDER THE HEAD LOANS & ADVANCES. SIMILARLY, IN RESPECT OF MIMA FLOUR MILLS OPENING B ALANCE WAS NIL AND THERE WERE SEVERAL SHIFTING OF BALANCE AND THE RESULTANT DEBIT BALANCE WAS RS.5,00,833/-. FOR A.Y. 2007-08, IN RESPECT OF MIMA FLOUR MILLS, OPENING BA LANCE WAS RS.5,00,833/- AND AFTER SHIFTING BALANCE, THE DEBIT BALANCE CAME TO NIL. IN RESPECT OF GANESH WHEAT PRODUCTS, OPENING BALANCE WAS RS.18,87,522/- AND AFTER SHIFTI NG BALANCE THE CREDIT BALANCE CAME TO RS.9 LAKHS. ON PERUSAL OF THE LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S. MIMA FLOUR MILLS (P) LTD. IT IS SEEN THAT ON SEVERA L DATES THERE WERE SHIFTING BALANCES. ON MANY OCCASIONS THE BALANCE WAS IN FAVOUR OF THE ASSESSEE AND ON SOME OTHER OCCASIONS THE BALANCE WAS IN FAVOUR OF GANESH WHEAT PRODUCTS (P) LTD. IT IS THUS EVIDENT THAT THERE WERE RECIPROCAL DEMANDS BETWEEN THE PARTIES AND THUS MUTUAL IN CHARACTERISTIC. THE ACCOUNT SO MAINTAINED IN RESPEC T OF SUCH MUTUAL TRANSFER OF AMOUNT IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 4 BY WAY OF GIVING AND TAKING FINANCIAL ASSISTANCE IS , THEREFORE, A CURRENT ACCOUNT AND THIS CURRENT ACCOUNT IS DIFFERENT FROM A LOAN ACCOU NT FOR THE SOLE REASON THAT FEATURE OF MUTUALITY IS NOT PRESENT IN A LOAN TRANSACTION. 5. HERE IN THE PRESENT CASE, FROM THE FACTS NARRATE D ABOVE, IT IS CLEAR THAT BOTH THE PARTIES ARE BENEFICIARY OF THE TRANSACTION BEING CU RRENT ACCOUNT OF THE ABOVE TRANSACTIONS I.E. SHIFTING BALANCES. THIS ISSUE HA S BEEN ANSWERED BY HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA V. CIT 338 ITR 538 (CAL) WHEREIN HONBLE HIGH COURT HELD AS UNDER: THE PHRASE BY WAY OF ADVANCE OR LOAN APPEARING I N SUB-CLAUSE (E) OF SECTION 2(22) OF THE INCOME-TAX ACT, 1961, MUST BE CONSTRUED TO MEAN THOSE ADVANCES OR LOANS WHICH A SHAREHOLDER ENJOYS SIMPLY ON ACCOUNT OF BEING A PERSON WHO IS THE BENEFICIAL OWNER OF SHARES (NOT B EING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A RI GHT TO PARTICIPATE N PROFITS) HOLDING NOT LESS THAN TEN PER CENT. OF THE VOTING P OWER; BUT IF SUCH LOAN OR ADVANCE IS GIVEN TO SUCH SHAREHOLDER AS A CONSEQUEN CE OF ANY FURTHER CONSDERATION WHICH IS BENEFICIAL TO THE COMPANY RE CEIVED FROM SUCH A SHARE- HOLDER, IN SUCH CASE, SUCH ADVANCE OR LOAN CANNOT B E SAID TO BE DEEMED DIVIDEND WITHN THE MEANING OF THE ACT. THUS, GRATU ITOUS LOAN OR ADVANCE GIVEN BY A COMPANY TO THOSE CLASSES OF SHAREHOLDERS WOULD COME WITHIN THE PURVIEW OF SECTION 2(22) BUT NOT CASES WHERE THE LOAN OR AD VANCE IS GIVEN IN RETURN TO AN ADVANTAGE CONFERRED UPON THE COMPANY BY SUCH SHAREH OLDER. FROM THE ABOVE FACTS AND LEGAL PROPOSITION DECIDED BY HONBLE JURISDICTIONAL HIGH COURT, IT IS CLEAR THAT SECTION 2(22)(E) OF THE ACT WAS INSERTED TO BRING WITHIN THE PURVIEW OF TAXATION THOSE AMOUNTS WHICH ARE ACTUALL Y A DISTRIBUTION OF PROFITS BUT ARE DISBURSED AS A LOAN SO THAT TAX THEREON CAN BE AVOI DED. IT IS PERTINENT TO NOTE HERE THAT WHEN DIVIDENDS ARE DECLARED BY A COMPANY, IT IS SOL ELY THE SHAREHOLDERS WHO BENEFIT FROM THE TRANSACTION. NO BENEFITS ACCRUE TO THE COM PANY BY WAY OF DIVIDEND DISTRIBUTION. THUS, SECTION 2(22)(E) OF THE ACT COV ERS ONLY SUCH SITUATIONS, WHERE THE SHAREHOLDER ALONE BENEFITS FROM THE LOAN TRANSACTIO N, BECAUSE IF THE COMPANY ALSO BENEFITS FROM THE SAID TRANSACTION, IT WILL TAKE TH E CHARACTER OF A COMMERCIAL TRANSACTION AND HENCE WILL NOT QUALIFY TO BE DIVIDEND. IN THE C ASE OF THE ASSESSEE, BY GIVING AND TAKING FINANCIAL ASSISTANCE FROM EACH OTHER, BOTH T HE ASSESSEE AND THE COMPANY WERE BENEFITED AND SUCH TRANSACTIONS BETWEEN THEM WERE N OTHING BUT COMMERCIAL IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 5 TRANSACTIONS AND DIVIDEND ATTRIBUTABLE TO THE SHARE HOLDER IS NOTHING TO DO WITH SUCH BUSINESS TRANSACTION. FROM THE ABOVE DISCUSSIONS IT CAN BE SAID THAT SEC. 2(22)(E) OF THE ACT COVERS ONLY THOSE TRANSACTIONS WHICH BENEFIT TH E SHAREHOLDER ALONE AND RESULTS IN NO BENEFIT TO THE COMPANY. ON THE OTHER HAND, IF TH E TRANSACTION IS MUTUAL BY WHICH BOTH SIDES ARE BENEFITED, IT IS UNDOUBTEDLY OUTSIDE THE PURVIEW OF PROVISIONS OF SEC. 2(22)(E) OF THE ACT. FROM THE ABOVE, IT IS CLEAR T HAT THE LOAN ACCOUNT DIFFERS FROM CURRENT ACCOUNT AND THE PROVISIONS OF SECTION 2(22) (E) OF THE ACT, BEING A DEEMING SECTION, CANNOT BE APPLIED TO CURRENT ACCOUNT. IN SUCH CIRCUMSTANCES, WE DELETE THE ADDITION AND THIS COMMON ISSUE OF ASSESSEES APPEAL S IS ALLOWED. 6. THE NEXT COMMON ISSUE IN THESE THREE APPEALS OF ASSESSEE IS AS REGARDS TO THE ORDER OF CIT(A) IN CONFIRMING THE DISALLOWANCE OF I NTEREST PAYMENT MADE BY ASSESSEE ON THE GROUND OF UTILIZATION OF BORROWED FUND BY GI VING INTEREST FREE ADVANCES TO THE RELATIVES OF THE ASSESSEE AND OTHER GROUP COMPANIES . FOR THIS ASSESSEE HAS RAISED IDENTICALLY WORDED GROUNDS, EXCEPT VARIANCE IN AMOU NT, AND FOR THE SAKE OF CONVENIENCE, WE REPRODUCE GROUND NO. 4 OF AY 2006-0 7 AS UNDER: 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE INTEREST PAYMENT MADE BY THE APPELLANT TO THE EXTENT OF RS.,20,000/- ON THE GROUND OF ALLEGED UTILIZATION OF THE BORROWED FUND BY GIVING INTEREST FREE ADVANCES TO THE RELATI VES OF THE APPELLANT AND ALSO TO THE OTHER CONCERNS OF THE GROUP. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO HAS SIMPLY DISALLOWE D THE INTEREST BY OBSERVING THAT, THE ASSESSEE DEDUCTED RS.1,34,988/- ON ACCOUNT OF P AYMENT OF INTEREST AGAINST INTEREST FROM OTHER SOURCES CONSISTING OF ROYALTY AND INTERE ST OF RS.1182/- FROM BANK. RECORD FURTHER SHOWS THAT BORROWED FUND WAS NOT UTILIZED F OR EARNING THE INCOME REFERRED ABOVE. THE BORROWED FUND ON WHICH INTEREST OF RS.1 ,34,988/- WAS PAID, WAS USED MAINLY FOR GIVING INTEREST FREE ADVANCE TO THE RELA TIVES OF THE ASSESSEE AND TO THE CONCERNS OF THE GROUP. HENCE, THE BORROWED FUND CA NNOT BE SAID TO HAVE BEEN USED FOR PURPOSE OF EARNING INCOME. HENCE, INTEREST PAID ON BORROWED FUND WHICH WAS NOT USED FOR EARNING INCOME IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE AO HAS NO WHERE DISCUSSED HOW MUCH IS THE BORRO WED FUNDS UTILISED BY THE IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 6 ASSESSEE DESPITE THE FACT THAT THE COMPLETE DETAILS WERE FILED BEFORE HIM BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE C IT(A) WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISSED THE APPEAL BY STATING THAT THE AO HAS DISCUSSED THE REASONS FOR DISALLOWANCE IN PARA 6, WHICH IS QU OTED ABOVE. WE ARE OF THE VIEW THAT FOR MAKING DISALLOWANCE THE AO SHOULD HAVE FOUND OU T THE NEXUS, FIRST OF ALL, AND IT IS ALSO A FACT THAT THE ASSESSEE IS HAVING SUBSTANTIAL CAPITAL IN THE FORM OF SHARES AND OTHER RESERVES AND SURPLUSES TO MEET OUT THESE LOANS. ONC E THIS IS THE POSITION, THE INTEREST ON BORROWED FUNDS CANNOT BE DISALLOWED. HENCE, THIS C OMMON ISSUE IN ALL THESE APPEALS OF ASSESSEE IS ALLOWED. 8. THE NEXT ISSUE IN IT(SS)A NO. 62/K/2011 OF ASSES SEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE ON ACCOUNT OF U NEXPLAINED INVESTMENT IN JEWELLERY. FOR THIS ASSESSEE HAS RAISED FOLLOWING GROUND NO. 3: 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE AMOUNT OF RS.3,95,859/- AS ALLEGED UNEXPLAINED INVESTMENT IN JEWELLERY SIMPLY ON THE GROUND OF LACK OF SO-CALLED PROPER RECONCILIATION. 9. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF SEARCH ON THE RESIDENCE OF ASSESSEE ON 04.10.2007 JEWELLERY CONSISTS OF 39 ITE MS VALUING RS.24,51,316/- WAS FOUND OUT OF WHICH JEWELLERY VALUING RS.17,26,660/- WAS SEIZED. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE JEWELLERY FOUND. THE ASSES SEE EXPLAINED AND FILED RECONCILIATION STATEMENT STATING THAT THE ITEM AT S L. NO. 1 TO 11 AMOUNTING TO RS.5,22,400/- BELONGS TO SMT. SUSHILA DEVI AND FILE D EVIDENCES QUA THAT. THE ASSESSEE ALSO CLAIMED THAT JEWELLERY TO THE EXTENT OF RS.6,4 0,328/- BELONGS TO PANNA DEVI MIMANI, ITEMS AT SL. NO. 12 TO 14. THESE DETAILS A RE DESCRIBED IN THE ASSESSMENT ORDER BUT THE AO HAS NOT BELIEVED THE EXPLANATION OF THE ASSESSEE AND MADE ADDITION BUT CIT(A) DELETED THE ADDITION AFTER CONSIDERING THE E XPLANATION OF THE ASSESSEE. THE CIT(A) ONLY SUSTAINED THE ADDITION MADE BY AO OF JE WELLERY VALUING AT RS. 3,95,859/- AS GIVEN IN PARA 7.1 OF THE ASSESSMENT ORDER, ITEM AT SL. NO. 1 TO 4. ACCORDING TO AO, THE ASSESSEE FAILED TO RECONCILE THESE ITEMS. THE CIT(A) ALSO OBSERVED FOR CONFIRMING THE ADDITION THAT, HOWEVER THE ASSESSEE FAILED TO PROVE THE SOURCE OF ACQUISITION OF THE BALANCE JEWELLERY OF RS.3,95,895/-. HENCE OUT OF T OTAL ADDITION OF RS.10,36,187/- ON IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 7 ACCOUNT OF UNDISCLOSED INVESTMENT IN JEWELLERY, ADD ITION OF RS.6,40,328/- IS DELETED AND BALANCE ADDITION OF RS.3,95,895/- IS CONFIRMED. WE FIND FROM THE RECORDS THAT THE ASSESSEE HAS FILED EVIDENCES OF REMODELING OF JEWELLERY THAT THESE JEWELLERY TO THE EXTENT OF RS.3,95,895/- WAS MADE OUT OF OLD JEWELLE RY, WHICH WAS ACQUIRED PRIOR TO THE DATE OF SEARCH. IN SUCH CIRCUMSTANCES, WE DELETE T HE ADDITION AND ALLOW THIS GROUND OF APPEAL OF ASSESSEE. 10. THE NEXT COMMON ISSUE IN IT(SS)A NOS. 73 TO 76/ KOL/2011 BY REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION M ADE BY ASSESSING OFFICER ON ACCOUNT OF DEEMED DIVIDEND. FOR THIS, REVENUE HAS RAISED SIMILAR GROUNDS IN ALL THE FOUR APPEALS, EXCEPT VARIANCE IN AMOUNT. FOR THE S AKE OF CONVENIENCE, WE REPRODUCE GROUND NO. 2 IN IT(SS)A 73/KOL/2011, WHICH READS AS UNDER:- 2) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE ADDITION OF DEEMED DIVIDEND OF RS.6,51,273/- RELYING ON THE CAS E LAW OF M/S. LMJ INTERNATIONAL 119 TTJ(KOL) 214. 11. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARC H AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASS ESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF INCO ME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF DEEMED DIVIDEND OF RS. 6,51,273/- FOR AY 2002-03, RS. 1686/- FOR AY 2003-04, RS. 5,66,430 AND RS. 25,400/ - FOR AY 2004-05 AND RS. 7,42,556 AND RS. 36,415/- FOR AY 2005-06. THE CONTE NTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE ORIGINAL AS SESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE OF THE R EVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHIC H SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) CONFIRMED THE ADDI TION BY HOLDING THAT THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO EXPLAIN WHY THE LOAN AMOUNT IN QUESTION SHOULD NOT BE TREATED AS DEEMED DIVIDEND AS PER PRO VISION OF SECTION 2(22)(E) OF THE ACT. HOWEVER, NO EXPLANATION TO THE SHOW CAUSE WAS OFFERED. HENCE, CONSIDERING THE FACT OF THE CASE AND THE PROVISION OF THE ACT THE A DDITIONS WERE CONFIRMED. THE CIT(A) IN PARA-3.1 OF HIS ORDER IN AY 2002-03 HAS OBSERVED AS UNDER:- IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 8 3.1. IN THE ASSESSEES CASE, AS ON THE DATE OF SEARCH, ASSESSMENT FOR THE YEAR UNDER CONSIDERATON HAD ALREADY BEEN COMPLETED. AT THE TIME OF ORIGINAL ASSESSMENT, THE INCOME DECLARED HAD BEEN ACCEPTED BY THE AO. IN COURSE OF THE SEARCH ACTION IN THE GROUP CASE, NOTHING INCRIMINAT ING IN RESPECT OF SUCH ADDITION /DISALLOWANCE WERE FOUND. SINCE THE ABOVE CLAIMS HA D BEEN ACCEPTED IN COURSE OF NORMAL ASSESSMENTS, AND SINCE THERE S NO CHANGE N THE FACTS ARID CIRCUMSTANCES COMPARED TO THE PAST, THE AO WAS NOT JUSTFIED IN REVIEWING THE COMPLETED ASSESSMENT OF THE SAID YEAR MERELY BECAUS E A SEARCH ACTION HAS BEEN CARRIED OUT IN THE PREMISES OF THE COMPANY. S. 153A DOES NOT AUTHORIZE THE MAKING OF A DE NOVO ASSESSMENT . WHLE UNDER THE FIRST PROVISO, THE AO IS EMPOWERED TO FRAME ASSESSMENT FOR SIX YEARS, UNDER THE 2ND PROVI SO, ONLY THE ASSESSMENTS WHICH ARE PENDNG ON THE DATE OF INITIA TION OF SEARCH ABATE. THE EFFECT S THAT COMPLETED ASSESSMENTS DO NOT ABATE. SINCE THE DISALLOWANCE ON ACCOUNT OF DEMAT CHARGES AND ADDITON ON ACCOUNT OF DEEMED DIVIDEND DOESNT EMANATE FROM INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH, HENCE THE SAME CANNOT BE THE SUBJECT MATTER OF CONSIDERATION UNDER THE PROCEEDING UNDER SECTION 153A. . HENCE I MUST FOLLOW THE DECISION OF LMJ INTERNATIONA1 VS DCIT (2008) 119 TTJ (KOL) 214 TO MAINTAIN THE JUDICIAL DISCIPLINE WHERE IT HAS BEEN HELD THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH PROC EEDING RELATING TO ANY ASSESSMENT YEARS, THE COMPLETED ASSESSMENT FOR SUCH YEARS CANNOT BE DISTURBED. ACCORDINGLY, THE DISALLOWANCE OF RS.45,635/- ON ACC OUNT OF DEMAT CHARGES AND ADDITION OF RS.6,51,273/- ON ACCOUNT OF DEEMED DIVI DEND IS DELETED. ACCORDINGLY, THE GROUND NO. 2 TO 4 TAKEN BY THE APP ELLANT IS ALLOWED. WE FIND THAT THIS ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST REVENUE BY THE DECISION OF HONBLE RAJASTHAN HIGH C OURT IN THE CASE OF JAI STEEL (INDIA) VS. ACIT REPORTED IN (2013) 88 DTR (RAJ) 1, WHEREIN IT IS HELD AS UNDER:- THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISION S OF SECTIONS 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (IN COME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) OF THE ACT. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS T HE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN R ESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS ME RELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE S ECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOU LD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETE D ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON TH E DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALS O NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 9 THE ALLAHABAD HIGH COURT IN COMMISSIONER OF INCOME- TAX (CENTRAL, KANPUR V. SMT. SHAILA AGARWAL (SUPRA) HAS HELD AS UNDER:- 19. THE SECOND PROVISO TO SECTION 153A OF THE ACT, REFERS TO ABATEMENT OF THE PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS. THE WORD 'PENDING' DOES NOT OPERATE ANY SUCH INTERPRETATION, THAT WHEREVER THE APPEAL AGAINST SUCH ASSESSMENT OR REASSESSMENT IS PENDING, THE SAME ALO NGWITH ASSESSMENT OR REASSESSMENT PROCEEDINGS IS LIABLE TO BE ABATED. TH E PRINCIPLES OF INTERPRETATION OF TAXING STATUTES DO NOT PERMIT THE COURT TO INTER PRET THE SECOND PROVISO TO SECTION 153A IN A MANNER THAT WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE COMPLETE, AND THE MATTER IS PENDING IN APPEAL IN THE TRIBUNAL, THE ENTIRE PROCEEDINGS WILL ABATE. 20. THERE IS ANOTHER ASPECT TO THE MATTER, NAMELY T HAT THE ABATEMENT OF ANY PROCEEDINGS HAS SERIOUS CAUSES AND EFFECT IN AS MUC H AS THE ABATEMENT OF THE PROCEEDINGS, TAKES AWAY ALL THE CONSEQUENCES THAT A RISE THEREAFTER. IN THE PRESENT CASE AFTER DEDUCTING BOGUS GIFTS IN THE REGULAR ASS ESSMENT PROCEEDINGS, THE PROCEEDINGS FOR PENALTY WERE DRAWN UNDER SECTION 27 1 (1)(C) OF THE ACT. THE MATERIAL FOUND IN THE SEARCH MAY BE A GROUND FOR NO TICE AND ASSESSMENT UNDER SECTION 153A OF THE ACT BUT THAT WOULD NOT EFFACE O R TERMINATE ALL THE CONSEQUENCE, WHICH HAS ARISEN OUT OF THE REGULAR AS SESSMENT OR REASSESSMENT RESULTING INTO THE DEMAND OR PROCEEDINGS OF PENALTY . (EMPHASIS SUPPLIED) THE SAID JUDGMENT WHICH ESSENTIALLY DEALS WITH SECO ND PROVISO TO SECTION 153A OF THE ACT ALSO SUPPORTS THE CONCLUSION, WHICH WE HAVE REACHED HEREINBEFORE. IT HAS BEEN OBSERVED BY THE HON'BLE SUPREME COURT IN K.P. VARGHESE V. INCOME TAX OFFICER : (1981) 131 ITR 597 THAT IT IS WELL R ECOGNIZED RULE OF CONSTRUCTION THAT A STATUTORY PROVISION MUST BE SO CONSTRUED, IF POSSIBLE THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED. THE ARGUMENT OF THE COUNSEL FOR THE APPELLANT IF TA KEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OU T OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A), ITAT AND THE HIGH C OURT, ON A NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE AO WOULD HAVE PO WER TO UNDO WHAT HAS BEEN CONCLUDED UPTO THE HIGH COURT. ANY INTERPRETATION W HICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED AS HEL D BY THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE (SUPRA). CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR TH E ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE A ASSESSMENT UNDER SECTION 153A OF THE ACT IN PURSUANCE OF SEARCH OR REQUISITI ON IS REQUIRED TO BE MADE. IN VIEW OF THE ABOVE DISCUSSION, THE ANSWER TO THE SUBSTANTIAL QUESTION OF LAW (IV) ABOVE IS IN THE POSITIVE AND AGAINST THE APPELLANT ASSESSEE, THE OTHER THREE QUESTIONS CONSEQUENTLY DO NOT ARISE, AND, AS SUCH, THE APPEAL FAILS AND IS, THEREFORE, DISMISSED. NO COSTS. IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 10 REGISTRY IS DIRECTED TO PLACE A COPY OF THIS JUDGME NT ON RECORD IN EACH CONNECTED FILE. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MATERI ALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE THE A O HAS MADE ADDITION OF DEEMED DIVIDEND. THE ISSUE IS SQUARELY COVERED IN FAVOUR O F ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDI A) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A). THIS ISSUE OF REVENUES APPEALS IS DISMISSED. 12. THE NEXT ISSUE IN IT(SS)A NO.73/K/2011 OF REVEN UE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION ON ACCOUNT OF DISALLOW ANCE OF DEMAT CHARGES. FOR THIS REVENUE HAS RAISED FOLLOWING GROUND NO.4: 4. THAT THE LD. CIT(A) IS ERRED IN DELETING THE AD DITION ON ACCOUNT OF DISALLOWANCE OF DEMAT CHARGES OF RS.45,365/- RELYIN G ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214 AS THE ADDITION WAS NOT MADE BY DIGGING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 13. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF I NCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED EXPENSES. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE OR IGINAL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE O F THE REVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHIC H SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) DELETED THE ADDITI ON BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEEDINGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEAL BEFORE TRIBUNAL ON THE ABOVE ISSUE. IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 11 14. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MA TERIALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE TH E AO HAS MADE ADDITIONS OF THE ABOVE EXPENSES. THE ISSUE IS SQUARELY COVERED IN FA VOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STE EL (INDIA) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 15. THE NEXT ISSUE IN IT(SS)A NO.75 & 76/K/2011 OF REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION ON ACCOUNT OF DISAL LOWANCE OF INTEREST. FOR THE SAKE OF CONVENIENCE, WE REPRODUCE GROUND NO. 3 OF IT(SS)A N O. 75/K/2011, WHICH READS AS UNDER: 3. THAT THE LD. CIT(A) IS ERRED IN DELETING THE AD DITION ON ACCOUNT OF DISALLOWANCE OF INTEREST OF RS.6,561/- RELYING ON T HE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214 AS THE ADDITION WAS NOT MADE BY DIGGING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 16. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF I NCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED EXPENSES. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE OR IGINAL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE O F THE REVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHIC H SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) DELETED THE ADDITI ON BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEEDINGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEAL BEFORE TRIBUNAL ON THE ABOVE ISSUE. IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 12 17. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MA TERIALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE TH E AO HAS MADE ADDITIONS OF THE ABOVE EXPENSES. THE ISSUE IS SQUARELY COVERED IN FA VOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STE EL (INDIA) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS ISSUE OF REVENUES APPEALS IS DISMISSED. 18. THE NEXT ISSUE IN IT(SS)A NO. 76/K/2011 OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION UNDER THE HEAD CAPITAL GAIN. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO. 4: 4. THAT THE LD. CIT(A), CENTRAL-1, KOLKATA IS ERRE D IN DELETING THE ADDITION OF CAPITAL GAIN OF RS.2,50,000/- RELYING ON THE CASE L AW OF M/S. LMJ INTERNATIONAL 119 TTJ(KOL) 214 AS THE ADDITION WAS NOT MADE BY DI GGING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 19. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF I NCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED EXPENSES. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE OR IGINAL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE O F THE REVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHIC H SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) DELETED THE ADDITI ON BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEEDINGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEAL BEFORE TRIBUNAL ON THE ABOVE ISSUE. 20. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MA TERIALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE TH E AO HAS MADE ADDITIONS OF THE IT(SS)A NO.60-62 & 73-76/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06MR. PURUSHOTTAM DAS MIMANI. V. DCIT, CC-V, KOL PAGE 13 ABOVE EXPENSES. THE ISSUE IS SQUARELY COVERED IN FA VOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STE EL (INDIA) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS ISSUE OF REVENUES APPEALS IS DISMISSED. 21. IN THE RESULT, ALL APPEALS OF ASSESSEE ARE ALLO WED AND THAT OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 17/10/2014 SD/- SD/- (SHAMIM YAHYA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, *DKP #$% - 17/10/2014 ' ' ' ' ''( ''( ''( ''( )( )( )( )( / COPY OF ORDER FORWARDED TO:- 1. / ASSESSEE MR. PURUSHOTTAM DAS MIMANI, FLAT NO. 11, 4 TH FLOOR, 32, ROWLAND ROW, KOLKATA-20. 2. / REVENUE DCIT, C.C.V, KOLKATA 3. $$'* + / CONCERNED CIT 4. + - / CIT (A) 5. (,- '''* , '*! / DR, ITAT, KOLKATA 6. -./ 01 / GUARD FILE. B Y ORDER/ ' , 2/4 $ '*!,