THE ACIT, CENTRAL-2, Indore V. M/s. AMBIKA REFINERY, Indore

ITSSA 67/IND/2016

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5407 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Capital asset; Depreciation; Search and seizure; Loose papers; Retrospective amendment; Question of law; Reasonable cause; Validity of assessment; Accommodation entries; Block assessment; Documents seized; Set aside
• Section: 68; 132; 143(3); 142(1); 153A; 205; 195; 208; 264; 192; 139(1); 158BC; 153; 158BD; 119; 22; 153C

Judgement Text

Ambika/Keshav Refinery (SS)65/Ind/2016 and others 1 आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI RAJPAL YADAV, HON'BLE VICE- PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING IT(SS)A Nos.65 to 67/Ind/2016) Assessment Years 2007-08 to 2009-10 ACIT, Central-II, Indore : Appellant V/s M/s. Ambika Refinery, Mandsaur PAN – AACFA 6315 L : Respondent C.O. Nos.20 to 22/Ind/2017 Arising out of IT(SS)A Nos.65 to 67/Ind/2016) Assessment Years 2007-08 to 2009-10 M/s. Ambika Refinery, Mandsaur PAN – AACFA 6315 L : Appellant V/s ACIT, Central-II, Indore : Respondent Ambika/Keshav Refinery (SS)65/Ind/2016 and others 2 IT(SS)A Nos.62 & 63/Ind/2016 Assessment Years 2009-10 & 2010-11 ACIT, Central-II, Indore : Appellant V/s M/s. Keshav Industries P. Ltd., Mandsaur PAN – AADCK 5715 G : Respondent Revenue by Shri P.K. Mitra, CIT-DR Assessees by S/Shri S.N. Agrawal & Pankaj Mogra, CAs Date of Hearing 09.11.2021 Date of Pronouncement 05.01.2022 O R D E R PER MANISH BORAD, A.M M/s. Ambika Refinery - IT(SS)A Nos.65 to 67/Ind/2016) & CO Nos.20 to 22/Ind/2017 Assessment Years 2007-08 to 2009-10 The above captioned appeals at the instance of Revenue and the Cross Objections as filed by the assessee are directed against the respective orders of Ld. Commissioner of Income Tax(Appeals)-III, (in short ‘CIT(A)’), Indore dated 10.02.2016. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 3 Grounds of appeal in IT(SS) 65/Ind /2016 A.Y. 2007-08– Departmental appeal (1) “On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs. 8,14,00,000/- on account of unexplained cash credit u/s 68 of the Income Tax Act as the cash deposited in the bank accounts of M/s DungarmalKhanchand and M/s Rishabh International remains unexplained which was brought into light by the AO during assessment proceedings.” Grounds of appeal in IT(SS) 66/Ind/2016 A.Y. 2008-09– Departmental appeal (1) “On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs. 3,36,79,695/- on account of unexplained cash credit u/s 68 of the Income Tax Act as the cash deposited in the bank accounts of M/s Dungarmal Khanchand and M/s Rishabh International remains unexplained which was brought into light by the AO during assessment proceedings.” Grounds of appeal in IT(SS) 67/Ind/2016 A.Y. 2009-10– Departmental appeal Ambika/Keshav Refinery (SS)65/Ind/2016 and others 4 (1) “On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs. 8,67,76,000/- on account of unexplained cash credit u/s 68 of the Income Tax Act as the cash deposited in the bank accounts of M/s DungarmalKhanchand and M/s Rishabh International remains unexplained which was brought into light by the AO during assessment proceedings.” Grounds of Appeal in CO 20/Ind/2017 – Assessee’s Cross Objection “1. That on the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the assessment order passed u/s 153A /143(3) of the act even when no incriminating documents were found and seized from the premises of the assessee during the course of search.” Grounds of Appeal in CO 21/Ind/2017 – Assessee’s Cross Objection “1. That on the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the assessment order passed u/s 153A /143(3) of the act even when no incriminating documents were Ambika/Keshav Refinery (SS)65/Ind/2016 and others 5 found and seized from the premises of the assessee during the course of search.” Grounds of Appeal in CO 22/Ind/2017 – Assessee’s Cross Objection “1. That on the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the assessment order passed u/s 153A /143(3) of the act even when no incriminating documents were found and seized from the premises of the assessee during the course of search.” 2. Facts, in brief, are that the assessee is a partnership firm which was formed in the A.Y. 1990-91. Search and Seizure operations u/s. 132 of the Act were initiated in the Ambika Group by the DDIT(Inv.), Indore on 19.01.2012. Subsequently, notices u/s. 153A of the Act were issued to the assessee and in response, the assessee furnished returns for the respective assessment years. Thereafter, for all three assessment years the case of the assessee was selected for scrutiny and notices u/s. 143(2) and 142(1) of the Act were served upon the assessee. Various details were called for by the Assessing Officer which were replied by the assessee. During the course of search at the Residential Premises of Shri Kailash Chandra Garg (Brother of Ambika/Keshav Refinery (SS)65/Ind/2016 and others 6 one of Partner of the Assessee), Cheque Books of M/s Dungarmal Khanchand and M/s Rishabh International were found and seized. On the basis of said cheque books, the Investigation Wing made various post search enquiries and summons were also issued to the said parties. However, no one appeared before them and therefore, the DDIT made certain observations. During the course of assessment proceedings, the Assessing Officer asked about the details of cash deposited in the Bank Account of M/s Dungarmal Khanchand and M/s Rishabh International. The assessee explained that transactions of sale in respect of both these parties and also to the other parties were recorded in the books of account of the assessee and the cheques as received from both these parties were also accounted for in the regular books of account of the assessee and the presumption of the Assessing Officer that entire cash as deposited in the bank account of both these parties belonging to the assessee has no base and merely on presumption the same was added to the income of the assessee. However, the A.O. on the basis of the observation of DDIT reached to a conclusion that entire transactions made by the assessee with the said concerns in the State Bank Of Indore , PY Road Branch is its unaccounted Ambika/Keshav Refinery (SS)65/Ind/2016 and others 7 money in the form of bogus sale u/s 68 of the I.T. Act. Finally, the Assessing Officer framed the assessments for Assessment Years 2007-08, 2008-09 and 2009-10 making the following additions: S.No A.Y Amount deposited in the bank account of M/sDungarmal Khanchand Amount deposited in the bank account of M/s Rishabh International Total Addition made [ Rs] 01 2007-08 3,75,20,000 4,38,80,000 8,14,00,000 02 2008-09 2,90,62,995 46,16,700 3,36,79,695 03 2009-10 69,24,6000 1,75,30,000 8,67,76,000 13,58,28,995 6,60,26,700 20,18,55,695 3. Being aggrieved, the assessee filed appeals for all three assessment years before the Ld. CIT(A). As regards the additions on account of unexplained cash credit u/s 68 the Ld. CIT(A) deleted the additions but dismissed the legal ground taken by the assessee in respect of additions made in search proceedings even when no incriminating documents were found from its premises. 4. Being aggrieved, the Revenue is in appeals as well as the assessee is in cross objections before this Tribunal for all the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 8 three assessment years. As the issues raised in the appeals filed by the Revenue and cross objections as filed by the assessee are common, they were heard together and are being disposed off by this common order for sake of convenience and brevity. 5. Brief facts are that during the course of search proceedings blank cheque books were found and seized from the residence of Shri Kailash Garg. During the course of Assessment proceedings when the Ld. Assessing Officer doubted the sales made to these parties, the assessee submitted various details before the Ld. A.O. to justify the sales made by it to these parties. It filed C-Forms received from these parties to justify the interstate sale. It also filed copies of invoices along with transporter bills, weighment slips and C-Forms for all the three years. The assessee also submitted copies of Sales Tax Assessment orders passed for the F.Y. 2006-07, 2007-08 and 2008-09 claiming that the same confirm the sales made to M/s Dungarmal Khanchand and M/s Rishabh International. The Ld. CIT(A) considered the various documents as submitted by the assessee and deleted the additions made by the Ld. A.O observing as under:- Ambika/Keshav Refinery (SS)65/Ind/2016 and others 9 “4.2.1. During the Assessment Proceedings when the Assessing Officer informed about the non-service of notice to these parties , the appellant submitted copies of the C-forms received from these parties against sales made to them. C – Form is certificate issued by the Sales Tax Department to the Purchaser as proof that interstate sales have taken place. The C-form submitted by the appellant contains the details of the invoice no., date and amount of sales made to M/s DungarmalKhanchand and M/s Rishabh International. The Appellant had also submitted copy of Sales tax Assessment Order passed for F.Y. 2006-07 2007-08 and 2008-09 which has mention of the sales made to M/s DungarmalKhanchand and M/s Rishabh International. These documents submitted by the appellant sufficiently discharged the onus cast on the appellant to substantiate the sales made to M/s DungarmalKhanchand and M/s Rishabh International. 4.2.2 The Assessing Officer chose to ignore these documents and empjasized that not a single invoice raised by the appellant in the name of these parties were found during the course of search. During the course of appeal proceedings the copy of VAT invoices and transport bills have been furnished. The same were available in the office premises of the appellant but were not seized by the Department. However, during the course of search, the account maintained by the appellant the Tally Software was seized and sales made to M/s DungarmalKhanchand and M/s Rishabh International were duly recorded in the said account maintained in Tally Software was furnished in the Appeal Proceedings. It was Test checked and seen that the sales made to M/s DungarmalKhanchand and M/s Rishabh International are reflected in the Sales Register. 4.2.3 The Assessing Officer derived inference from the fact that the appellant could not file any confirmation from M/s DungarmalKhanchand and M/s Rishabh International and furnish copy of their ledger accounts. In the appeal proceedings the appellant has filed affidavits of M/s DungarmalKhanchand and M/s Rishabh International as submitted before the Sales Tax Authorities confirming the sales made to them. These documents were available with Assessing Officer in the details filed by the appellant vide letter dt.25.02.2014 during the assessment proceedings. As the appellant was not doing any business with these parties since 2009 it was not in a position to produce these parties before the Assessing Officer. 4.2.4 Regarding the signed cheques of M/s DungarmalKhanchand and M/s Rishabh International Found and seized during the course of search the appellant has submitted that it is normal course of business practice to keep signed blank cheques of the customers for ease of business and as security . During the course of search procedings various other cheques were found and seized as per LPS-7 belonging to other customers of the appellant. During the appeal proceedings the appellant has furnished copies of these cheques. The Assessing Officer has not taken any cognizance of the other cheques found and seized at the time of search. Regarding the introduction for Ambika/Keshav Refinery (SS)65/Ind/2016 and others 10 the Bank Accounts of both these firms by Smt. Rama Garg, the Appellant has submitted that as these parties were Delhi based, to facilitate the business of an associate, the bank introduction was done by Smt. Rama Garg. No Adverse inference cane be drawn from this in the absence of any other corroborating evidence. 4.2.5] The Assessing Officer had obtained the Bank Account statements of M/s DungarmalKhanchand and M/s Rishabh International. In the F.Y. 2007-08 Rs. 29062995/- has been deposited in the account of M/s DungarmalKhanchand and Rs. 4616700/- in the bank account of M/s Rishabh International. The Assessing Officer asked the appellant to explain these cash deposits in the accounts of M/s Dungarmalkhanchand and M/s Rishabh International. The Assessing Officer has wrongly cast the onus on the appellant to explain these cash deposits. If any explaination was required, it was to be obtained from M/s DungarmalKhanchand and M/s Rishabh International. Mr. Laxmandas (Prop of Rishabh International) is assessed to income Tax a fact which can be verified from the Income Tax Website. 4.2.6 The Appellant has duly recorded the sales made to M/s DungarmalKhanchand and M/s Rishabh International in its books of Accounts and the same has not been questioned or doubted bythe Assessing Officer. The Assessing Officer has also not doubted the purchases as shown by the appellant in the books of accounts. It is pertinent to note that the stock available at the time of search was verified with the books of accounts and no discrepancy was found in the stock. 4.2.7 In view of the facts and circumstances of the case, the Assessing Officer has erred in adding Rs. 33679695/- in the A.Y. 2008-09 to the Total income of the appellant u/s 68 of the Act on account of cash deposits in the bank accounts of M/s DungarmalKhandchand and M/s Rishabh International during the F.Y. 2007-08. Therefore the Addition of Rs. 33679695/- is deleted. Ground No. 5 is allowed.” 6. Ld. CIT-DR vehemently argued supporting the order of the Assessing Officer and submitted that the Assessing Officer was justified in making additions as the assessee brought its undisclosed income in its regular books through the said two parties. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 11 7. On the other hand, the Ld. Counsel for the assessee relied upon the order of the ld. CIT(A) in respect of deletion of additions made on account of cash deposits and also filed the written submission which reads as under: 1.2.1] That in this ground, the department has challenged the addition made by the Ld. A.O. in respect of Cash deposited in the Bank Account of M/s DungarmalKhanchand and M/s Rishabh International to whom material was sold by the assessee as Assessee’s Income u/s 68 of the Income Tax Act. Year wise details of the same is as under:- S.No A.Y Amount deposited in the bank account of M/s Dungarmal Khanchand Amount Deposited in the bank account of M/sRishabh International Total Addition made [ Rs] 01 2007-08 37520000 43880000 81400000 02 2008-09 29062995 4616700 33679695 03 2009-10 69246000 17530000 86776000 135828995 66026700 201855695 1.2.2] Detail of sale made by the assessee to the above parties in the previous year’s relevant to the Asst Years 2007-08, 2008-09 and 2009-10 is as under:- S.No Asst Year M/s Dungarmal Khanchand [Rs] M/sRishabh International Total [ Rs] 1 2007-08 NIL 10,24,58,407 10,24,58,407 2 2008-09 5,16,81,362 NIL 5,16,81,362 3 2009-10 8,48,28,231 8,53,43,560 17,01,71,791 13,65,09,593 18,78,01,967 32,43,11,560 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 12 1.2.3] The assessing officer on inner Page Nos 4 to 6 of the assessment order, prepared a cash flow chart wherein the amount of cash as deposited by these parties in their bank account and cheques were issued in favour of the assessee was mentioned. Summary of the cash as deposited in their bank account prior to issuance of the cheques in favour of the assessee is as under:- S.No Asst Year M/s Dungarmal Khanchand [Rs] M/sRishabh International Total [ Rs] 1 2007-08 8,50,000 31,30,000 39,80,000 2 2008-09 NIL NIL NIL 3 2009-10 16055000 71,00,000 2,31,55,000 16905000 1,02,30,000 2,71,35,000 1.2.4] That the assessing officer himself in the assessment order, observed that cheques of Rs 1,02,30,000/- only was issued by M/s Rishabh International in favour of the assessee after depositing the cash in its bank account. Similarly, cheques of Rs 1,67,20,000/- only was issued in favour of the assessee against the cash of Rs 1,69,05,000/- as deposited by M/s DungarmalKhanchand. Hence, the assessing officer has grossly erred in adding the entire amount of cash as deposited to the tune of Rs 20,18,55,695 in the bank account of both these parties to the income of the assessee even when cheques of Rs 2,69,50,000/- [ Rs 1,02,30,000/- + Rs 1,67,20,000/- ] only were issued in favour of the assessee. 2.1] That in case of Interstate sale, the assessee had sold goods against the C form, otherwise normal taxes has to be paid under the Sales Tax/ Vat Tax Act. Hence, sometime goods were purchased by these parties in their own name and sometime in the name of other parties having C forms. The assessee is also not concerned with the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 13 amount received by it, whether the said cheques belonging to particular party or by other party on his behalf. 2.2] The goods as sold by the assessee was credited in its Profit & Loss account under the head of sales and accordingly offered the said amount for tax. The consideration as realized by the assessee was also paid immediately to the supplier from whom material was purchased by the assessee. 2.3] The assessing officer on inner Page Nos. 4 to 6 of the assessment order, prepared a cash flow chart wherein the amount of cash as deposited by these parties in their bank account and cheques were issued in favour of the assessee was mentioned. Summary of the cash as deposited in their bank account and cheques as issued in favour of the assessee is as under:- S.No Asst Year M/s Dungarmal Khanchand [Rs] M/sRishabh International Total [ Rs] 1 2007-08 8,50,000 31,30,000 39,80,000 2 2008-09 NIL NIL NIL 3 2009-10 1,60,55,000 71,00,000 2,31,55,000 1,69,05,000 1,02,30,000 2,71,35,000 2.4] That the assessing officer himself in the assessment order in Para 10.3 and 10.4 on inner Page Nos 4 to 6 of the assessment order, observed that cheques of Rs 1,02,30,000/- only was issued by M/s Rishabh International in favour of the assessee after depositing the cash in its bank account. Similarly cheques of Rs 1,67,20,000/- only was issued in favour of the assessee against the cash of Rs 1,69,05,000/- as deposited by M/s DungarmalKhanchand. Hence, the assessing officer has grossly erred in adding the entire amount of cash as deposited to the tune of Rs 20,18,55,695 in the bank account of both these parties even when cheques of Rs 2,69,50,000/- [ Rs Ambika/Keshav Refinery (SS)65/Ind/2016 and others 14 1,02,30,000/- + Rs 1,67,20,000/- ] only was issued in favour of the assessee. 2.5.1] That during the course of Search Operation on 19.01.2012 at the residential premises of ShriKailash Chandra Garg (Brother of one of the Partner of the assessee Firm) at 87, Samrat Ashok Nagar ,MandsaurCheque books of M/s DungarmalKhanchand and M/s Rishabh International were found and seized . That on the basis of said cheque books the Investigation Wing has made various post search enquiries and summons were also issued to the said parties however, no one has appeared and therefore the DDIT has made certain observation on the basis of which the A.O. has reached to the conclusion that entire transactions made by the assessee with the said concerns in the State Bank Of Indore , PY Road Branch is unaccounted money of the assessee which it has introduced in the form of bogus sale u/s 68 of the Income Tax Act. The Ld. A.O. has therefore added the same to the total income of the assessee. 2.5.2] It has duly been explained that transaction of sale of material to both these parties and also to the other parties have properly been recorded in the books of account of the assessee, the cheques as received from both these parties have also been properly accounted for in the regular books of account of the assessee. The presumption of the assessing officer that entire cash as deposited in the bank account of both these parties belonging to the assessee has no base and merely on presumption the same was added to the income of the assessee which in no case permissible under the search assessment proceeding and more so when cheques of Rs 2,69,50,000/- [ Rs 1,02,30,000/- + Rs 1,67,20,000/- ] only was issued in favour of the assessee. 2.6.1] The assessee in the block period had sold Soya refined oil to both these parties and in turn had realized the amount. The assessee was not concerned with the cash, if any, deposited by them in their Ambika/Keshav Refinery (SS)65/Ind/2016 and others 15 bank accounts. The amount as realized by the assessee was utilized towards the purchase of solvent oil. 2.6.2] That from the nature of addition as made it is very clear that that entire amount of sale proceed as realized from both these parties duly accounted for in the regular books of account of the assessee and profit earned on the same has duly been offered by it as its income in the Audited Profit & Loss account and Balance sheet and shown in the regular return of total income as filed. The assessing officer has not found anything new due to the search action but the addition was made merely for the reason that certain Blank Cheques books was found from the premises of ShriKailash Chand Garg. 2.6.3] It was explained to the Ld. A.O. that case of assessee was also scrutinized and assessment order u/s 143(3) of the Income Tax Act were also passed for the Asst Years 2008-09 and 2009-10 wherein the Entire amount of sales made by the assessee was accepted as genuine. However while passing the assessment order based on the return filed in response to notice issued u/s 153A of the Income Tax Act the view as taken earlier by the Department has been changed and the addition was made to the income of the assessee. The Ld. assessing officer for sake of making the addition had made addition even when no incriminating document was found from the premises of assessee. 2.6.4] The entire facts are discussed by the Ld. A.O. in the Assessment order in para 10 to 10.13 and the detailed reason assigned by him for making addition has been given in para 10.9 of the Assessment Order. 2.7.1] The assessee firm is engaged in the purchase of soya Solvent oil and after refining the same is sold to its different customers. Year- wise breakup of soya refined oil and other by-products as sold by the assessee is as under:- Ambika/Keshav Refinery (SS)65/Ind/2016 and others 16 S.No Financial Year Asst Year Amount [ Rs ] 1 2006-07 2007-08 686314798 2 2007-08 2008-09 411145229 3 2008-09 2009-10 611311440 2.7.2] Copy of audited balance sheet and Profit & Loss account along With Tax Audit Report for the Financial years 2006-07 to 2008-09 are enclosed for your honour’s kind reference on page nos. 1 to 82 of the paper book. 2.7.3] The assessee has also filed Copy of sales tax assessment ordesr as passed in its case for the Asst Years 2007-08 to 2009-10 before the Ld. A.O. wherein the sales as shown by the assessee to these parties was duly accepted by the sales tax department. Copies of the same are also enclosed for your honour’s kind reference on page nos. 547 to 566 of the paperbook. 2.7.4] The assessee has also received Form C from these parties to whom goods were sold by it. That both these parties are of Delhi though they are also maintaining the Bank account at Indore. Since, sales to these parties are inter- state sales hence, the assessee had sold goods to these parties against issuance of Form No C which was also received by the assessee and submitted in the sales tax department at the time of its assessment. Copy of sample C-forms as received from both these parties against the supply of material to these parties are enclosed for your honour kind reference on page nos. 97 to 208 of the paperbook. 2.7.5] That TIN No of both these parties is as under:- S.No Name of the Party TIN No 1 M/s DungarmalKhanchand 07770282561 2 M/s Rishabh International 07220282330 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 17 2.7.6] That in view of the above facts, it is clear that entire amount as received from both these parties were credited on account of sales made by the assessee and duly shown in its profit & Loss account as income in form of sales hence there is no justification for doubting the genuineness of the amount as realized by the assessee. 2.8.1] That assessee firm is engaged in the Manufacturing of Soya Refine oil. That flow chart of its business activities is as under:- Soya Solvent Crude Oil Refine the crude oil in its plant Soya Refined Oil By- Product 2.8.2] The parties as referred by the Ld. A.O. in the Assessment order and the amount deposited by them in the bank in respect of which has been added by the A.O. were regular customer of the assessee at that time. The assessee was regular selling goods either to these parties or through these parties. 2.8.3] That as reflected above in flow chart the assessee had purchased Soya Solvent Crude oil and after refining and processing, sold the same to its customers which also includes the parties as Added by the A.O. in the Assessment order . The amount as realized by the assessee was also utilized towards purchase of Crude oil. 2.8.4] That from the Audited final account, your Hon’our will find that entire amount as realized on sale of goods is utilized towards purchase of material, no capital investment was made by the assessee. That it was submitted before the A.O. that when the purchases of the assessee was not in doubt in that case there was no reason for doubting the sale of the assessee. 2.8.9] The assessee has also received Form No C against supply of material. Since, both these parties belonging to Delhi. Hence, Form No C was issued from the sales tax department of Delhi. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 18 2.8.10] The sales as shown by the assessee in all these years were duly accepted by the sales tax department. Credit of Form No C as received from these two parties were also allowed by the sales tax department. 2.8.11] Moreover Shri Laxmandas Proprietor of M/s Rishabh International is assessed to Income Tax also. Copy of his PAN card and registration certificate as issued by the sales tax department is filed before your honour as to justify its identity. 2.8.12] That when sales as shown by the assessee was duly accepted by the sales tax department in that case there was no reason for disbelieving the sales as shown by the assessee in its books of account under Income Tax proceeding. 2.9] That when the assessee itself has shown the sales in its books of account, in that case there was no reason for even adding net profit on the said amount of sales to the income of the assessee. That even if the sales of the assessee was not found recorded in the books of account , in that case also only the net profit can be added to the income of the assessee. For this preposition we rely on the following direct decisions:- S.No Name of the Decision Citation 1 BalchandAjit Kumar 263 ITR 610[MP] 2 Bimal Kumar Singhania 100 TTJ 790 [ Cal] 3 Som Distilleries Limited 003 ITJ 401 [ Indore ] 4 CIT vs President Industries 258 ITR 654 [ Gujrat ] 2.10] That in the present case, the entire amount of sale proceeds as realized from both these parties has been duly accounted for in the regular books of account of the assessee and profit earned on the same has duly been offered by it as its income. Thus, the Ld. A.O. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 19 was totally wrong in making addition of the entire amount of cash as deposited by these parties in their bank account and issuing cheque to the assessee firm against sales made to them as its income. 2.11.1] That from the figure of Balance Sheet of the assessee firm for the year ended on 31.03.2007, 31.03.2008 and 31.03.2009, you will find that there was no major investment in the capital assets of the assessee company. Brief summary of the balance sheet of the assessee is as under:- S.No Particulars 31.03.2007 31.03.2008 31.03.2009 1 LIABILITIES 1.1 Capital & Reserve 32495572 33175824 35103326 1.2 Loans & Borrowings 6246474 5108993 10960626 1.3 Sundry Creditors 15292235 29796433 38527513 54034281 68081250 84591465 2 ASSETS 31.03.2007 31.03.2008 31.03.2009 2.1 Fixed Assets 30176812 31812982 34084012 2.2 Stock in Trade 970769 5553211 4265715 2.3 Sundry Debtors 4997491 2197623 1473558 2.4 Sundry Deposit & Advances 14078536 28202777 41084764 2.5 Cash & Bank Balance 3810673 314657 3683416 54034281 68081250 84591465 2.12] That in view of the above, there was no major change in the figure of fixed assets of this year as compared to that of last two years. Hence, there was no reason for taking any adverse view against the assessee. 2.13] Copy of income tax assessment order as passed in the case of the above assessee for the Asst Years 2008-09 and 2009-10 are Ambika/Keshav Refinery (SS)65/Ind/2016 and others 20 enclosed on page Nos 83 to 95 of the paper book filed before your honours. 2.14] That further a sales tax search was also conducted in the case of assessee and after the search, block assessment order was passed wherein the sales as declared by the assessee was accepted as genuine. 2.15] The amount as received from the above two parties already offered for tax by way of its sales in the P&L Account since, the assessee has already included the amount as received from these two parties as its income in form of sales thus in that case there was no reason for the A.O. to again add the said amount as its income. It is therefore again submitted that the addition so made by the A.O. is wrong and uncalled for. 2.16] It is submitted that the assessee is not concerned with the source of amount as received from its customers. That sometimes material were also sold in cash from the factory itself. The cash as received on account of material sold in cash or goods sold to these parties, nature are more or less same. The amount as realized were adjusted against material sold and the amount as realized from them duly credited in our books of account. 2.17] That both the above mentioned parties which were added by the A.O. were also involved in the trading of soya refined oil and source of cash as deposited in their bank account may be from cash sales but the assessee in no way concern with the cash as deposited in the bank account of these parties but one thing is very clear that whatever amount as received from both these parties has been duly adjusted by the assessee against the sales. 2.18] That in view of the above, it is submitted that there was no justification for making addition in respect of sales made by the assessee to these two parties even when the amount of sales as received duly credited in the Profit & Loss account of the firm. Thus, the addition as made to the total income of the assessee is wrong and Ambika/Keshav Refinery (SS)65/Ind/2016 and others 21 uncalled for . The Ld. CIT(A) has rightly deleted the said addition as made by the A.O. Your Honours are very kindly requested to accept the same.” 8. We have heard the rival contentions of both the parties and gone through the material available on record. During the course of search, Cheque Books of M/s Dungarmal Khanchand and M/s Rishabh International were found and seized and on the basis of said cheque books, the Investigation Wing made various post search enquiries and summons were also issued to the said parties. However, no one appeared before them and therefore, the DDIT made certain observations. During the course of assessment proceedings, the Assessing Officer asked about the details of cash deposited in the Bank Account of M/s Dungarmal Khanchand and M/s Rishabh International. We find that various details were called for by the Assessing Officer which were replied by the assessee. The assessee explained that transactions of sale in respect of both these parties and also to the other parties were recorded in the books of account of the assessee and the cheques as received from both these parties were also accounted for in the regular books of account of the assessee and the presumption of the Assessing Officer that entire cash as deposited in the bank account of both these Ambika/Keshav Refinery (SS)65/Ind/2016 and others 22 parties belonging to the assessee has no base and merely on presumption the same was added to the income of the assessee. However, we find that the A.O. on the basis of the observation of DDIT noted that entire transactions made by the assessee with the said concerns in the State Bank Of Indore , PY Road Branch is its unaccounted money in the form of bogus sale u/s 68 of the I.T. Act and as such, the Assessing Officer framed the assessments for Assessment Years 2007-08, 2008-09 and 2009- 10 making the additions of Rs.8,14,00,000/-, Rs.3,36,79,695/- and Rs.8,67,76,000/-, respectively, totaling to Rs.20,18,55,695/-. Before us, the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not justify the additions made by the Assessing Officer by bringing any contrary material on record. We have carefully perused the various documents filed by the assessee which were available before the Ld. A.O. as well as CIT(A). On perusal of the same, we find that the assessee has duly filed various documents to justify its contentions. We find that the Assessing Officer, except relying upon the DDIT, did not bring any single corroborative material or evidence on record to establish that the amount received from M/s DungarmalKhanchand and M/s Rishabh International are Ambika/Keshav Refinery (SS)65/Ind/2016 and others 23 undisclosed income of the assessee which it introduced in the form of bogus sales u/s 68 of the Act. We find that the Ld. CIT(A) during the appellate proceedings examined all the observations given by the A.O. in the assessment order and the reply to the said issue given by the assessee which are summarised as under:- 01]. Observation of AO Para 10.9: The notices were issued to both the firms i.e. M/s DungarmalKhanchand and M/s Rishabh International to examine the existence of the said purchasers but the same has returned back unserved. Further, no effort was made by the assessee either to provide the new addresses or to produce these parties for necessary verification, therefore, their identity has not been established. The assessee has not filed any confirmation from these parties nor filed the copy of the ledger accounts. Thus has the assessee failed to prove all the three conditions provided in Section 68, i.e. identity, creditworthiness and genuineness of the transaction.” Reply of Assessee : The contention of the Ld AO is not correct. On being informed by the A O about non- service of notice to these parties, the appellant vide letter dated 08.01.2014 & 25/2/2014 submitted copies of C Forms received from these parties in against sales made to them.C-Form is a certificate issued by the Sales tax department to the purchaser as proof that inter-state sales took place. The seller is required to obtain this Form - C from the purchaser and shows it to the sales tax dept. to get lower tax rates. In case if the purchaser does not release the Form – C the seller has to pay the Tax at the time of sales tax assessments. The C Form can be issued only by a registered dealer to another registered dealer. Thus, the authenticity of the parties is clearly proved from such C- Forms issued by a third Govt. Agency i.e. Sales Tax dept. These forms issued by sales tax department to the purchaser who in turn provide the same to the seller. These form contains details of supplier alongwith invoice details i.e. no. date and detail of material supplied. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 24 In addition to this the appellant also supplied copy of assessment order passed in his case alongwith copies of affidavit of these parties as submitted before the sales tax authorities. These documents were available before A O on page 2153 - 2172 of the letter dated 25-2-2014, copy of which is available on page 1-15. Thus, when the assessee had submitted the sales tax orders, details of invoices of sales made and copy of C-forms, the onus has been discharged by the assessee. Copies of these documents also submitted before Your Honour alongwith our first submission. Further regarding production of these parties before the LdA O, we submit that the assessee is not dealing with the parties since 2009 hence it was not in touch with these parties. However during assessment assessee has also written a letter to these parties to present before A O in connection with the business transaction carried out with them, copies of which is on page 16-17. It is beyond the capacity of the assessee to compel a third party to appear before the assessing authority. Since the assessee has discharged its onus by providing these clinching evidences, hence the allegation of the LdA O is not warranted. 02]. Observation of AOPara 10.9.ii & iii The bank accounts of both the firms were introduced by Smt. Rama Garg who is mother of ShriPawanGarg (Partner of assessee firm) and sister-in-law (Bhabhi) of ShriVinodGarg and Shri Suresh Garg (both are the partners of the firm). Therefore, the relationship of the assessee from these firms is not just normal business connection. further allegation of the A O that during assessment proceedings also, the assessee could neither explain as to why the accounts of the firms was introduced by Smt. Rama Garg, merely an allegation neither any such query raised by the A O nor assessee explained on his own considering the normal feature of day to day business. Reply of Assessee As explained, the assessee was having regular business transaction in these years with these two parties and since the customer was Delhi based, hence to facilitate a business associate, assessee has introduced it to the bank for the limited purpose of opening bank account, which is nothing but a common human nature and part of day to day life hence no adverse inference can be drawn from the same. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 25 03]. Observation of A.O. Para 10.9.iv:- A O again repeated issued discussed in para 10.9.i-iii and added that Blank signed cheque books of these two concerns were found at the residence of ShriKailashGargSamrat Ashok Nagar Indore. LdA O further stated that huge cash deposited in bank account of these bank accounts. Reply of Assessee : in rebottle to non service of notice and introduction in bank, we have already submitted in reply to above. Further regarding availability of signed cheques we submit that this is an ordinary business practice of the assessee wherein he keeps various signed blank cheques of it’s customers for ease of business and as security and there is nothing illegal or unusual about it. Even during the course of search proceedings, various other cheques were found and seized of other parties as per LPS-7, copies of these documents are enclosed on page 18-37. The A O has not taken any cognizance of other cheques found at the time of search, hence the practice of choose and pick should not be accepted. Further regarding cash deposits in the bank account of the customers of the assessee, the LdA O has wrongly casted the onus on the assessee. It is not a case of loan transaction wherein the onus on the assessee to prove source of source is higher. It is a normal sales transaction wherein the assesssee has duly recorded sales in its books of accounts and the payment has been received against the same. If any explanation is required that can be taken from those customers, who are also income Tax Assessee. We have verified from the Income Tax website in case of Mr LaxmanDass(Prop. of Rishabh International) and it was noted that he is regularly filing his return of income, evidence of the same is enclosed herewith on page 38-40 . The assessee has limited resources to check these details but AO has vast resources and can use the same to un-earthen the where abouts of these parties. 04]. Observation of A.O. Para 10.9.v:- The assessee has claimed that both the above referred parties are its customers, which is not correct. Not a single sales invoices raised by the assessee in the name of these parties was found during the course of search. There was not a single delivery challan issued which can substantiate that assessee ever supplied/ sold any goods to these parties. The assessee has not produced a single document/ evidence to substantiate that these parties were its customers. The assessee has Ambika/Keshav Refinery (SS)65/Ind/2016 and others 26 given vague and evasive reply that it is regularly selling goods to these parties or through these parties. The assessee has not substantiated and not filed any details either of the sales made to these parties or of the sales made through these parties. No such document was found during the entire search proceedings which could also prove this contention of the assessee. Reply of Assessee: An extensive search took place on the business premises of the assessee. The search team has verified entire records and documents available at the place of search. However they have seized only incriminating documents at that point of time. Since sales to these parties were duly recorded in the books of accounts hence the same was not seized by them. Further assessment of these years were completed U/s 143(3) of the Act and all the preliminary details were submitted during assessment which includes details of sales & purchase expenses etc. Further during the course of search account maintained by the assessee in tally software were also seized, evidence of which is on page 41-42. Sales to these parties were duly recorded in the said books as maintained in the tally software alongwith invoice number and qty. etc. Copies of sales register as maintained in Tally software is enclosed herewith on page 63-148. Therefore the allegation of the A O that no sales effected to these parties is contrary in without verification of the seized data and only on the basis of whims and surmises. 05]. Observation of A.O. Para 10.9.vi:- Even during the assessment proceedings the assessee was neither able to produce these parties nor submitted any confirmation from them in this regard. Reply of Assessee: As submitted in reply to 10.9.i, the assessee had issued letters to these parties on their last known addresses asking them to confirm the sales made to them. However, these parties chose to not reply to the letters issued by the assessee. The AO ignored that the assessee has no power under any act to compel these party to appear before any authority. Further for confirmation of transaction appellant has submitted Form C for each and every sales made to these two parties. Copy of reply filed before A O is enclosed on page 1-15. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 27 06]. Observation of A.O. Para 10.9.vii:- The assessee has then filed year wise quantity details of raw material purchased and finished goods for 31.03.2007, 31.03.2008 and 31.03.2009. Surprisingly the assessee has not stated that in what context it has filed such details and what does it want to convey by filing these details. Anyway, the fact remains that again the assessee has not corroborated the quantitative details as filed, with any other record and evidence. No stock records were found during the search proceedings, which fact was categorically communicated to the assessee and still the assessee ha not cared to produce such a record. Reply of Assessee These details were filed before the AO so as to prove the correlation between purchases, sales, opening and closing stock as stated in the letter dated 25/2/2014, copy of which filed on page 1-15. Sales to these parties were part of sales made out of the purchases made by assessee.It is a well decided judicial principal that when the assessee’s purchases are not doubted, it is absurd to hold that merely the sales are bogus. The AO has not doubted the authenticity of any of the purchases made by the assessee and it was for this reason, that the quantity details were filed before the AO. 07]. Observation of A.O. Para 10.9.viii:- The assessee could not furnish the details of the transporters who might have transported the goods. On this basis, it is established and held that the transactions claimed are not genuine.” Reply of Assessee All the invoices issued to these parties, contained details of transport etc. Further in reply to your query regarding production of documents in substantiation of sales to these parties, we have submitted entire bills/ delivery challanalong with transport receipt of sales affected to these parties. All these details were duly available in the accounts which were seized during the course of search. 08]. Observation of A.O. Para 10.9.ix: The submission made vide point no 5 of the assesse’s reply that the amount received from these two parties already offered to taxation by way of sales in the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 28 profit and loss account and therefore there was no reason for again proposing the same to be added to its income, has no legs to stand as there is not even an iota of any evidence to suggest that the assessee has offered these receipts as its income through sales. The assessee has only made this statement in its submission and not filed a single document to substantiate the same. It is reiterated that no document was found during the search which shows that the amounts received from these parties have been offered as income by the assessee. Reply of Assessee: As mention above, entire books of accounts maintained in computer system was seized during the course of search. Further all the preliminary details were submitted during assessment which includes details of sales & purchase expenses etc. The allegation of the A O that no sales effected to these parties is contrary to his statement that the sales made by the assessee could not be verified. Further the income offered by the assessee in ROI is part of income element of sales credited to P & L Account. Thus the contention of the AO that there is no single iota of evidence to prove that these sales have been offered to tax is flawed since there is no scope for the assessee to meddle with the sales details when the same are fully supported by Vat invoices, Order of the Sales Tax Department, Delivery Challans, etc. Thus this contention of the AO just serves to prove that the AO has no backing to prove his claim but still wants to make the addition based on surmises. 08]. Observation of A.O. Para 10.9.x: A O stated that only yearly qty. details were submitted by assessee and no partywiseqty details of sales were submitted. The assessee miserably failed to prove sales made to these parties. Reply of Assessee: The appellant submitted as detailed reply to the show cause notice vide letter dated 25/2/2014 wherein each and every aspect of the sales has been discussed and documentary evidences were filed, copy of which available on page 1-15. When the assessee is providing qty. details of sales and purchase, he has pointed out that there is no relevance of submitting qty details. The qty. detail submitted by the assessee is nothing but extract from the books which was seized at the time of search. The A O has not discussed about these documents submitted before him in the assessment order. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 29 It is worthwhile to note that during the course of search entire stock available with the assessee was verified with the books of account which are part of seized documents. The stock was matching with its record. So if the contention of the A O accepted that no sales made to these parties, then how can stock found, match with stock as per books which is after reducing sales to these parties. Documents showing verification of stock at the time of search is enclosed on page.43-62. Therefore his allegation is without any basis and needs to be rejected. 09]. Observation of A.O. Para 10.9.xi: The submissions made in reply point no 7 and 8 are also confusing, misleading and contradictory. On one hand the assessee has claimed that it is not concerned with the source of amount as received from its customers in the other hand it has stated that both these parties are also involved in the trading of soya refined oil and source of cash as deposited in their bank account may be from cash sales. The assessee has also assumed the facts. Reply of Assessee : At the outset, we would again like to reiterate the submission of Issue 4. However, when the AO is repeatedly asking the assessee questions about the source of money in some other persons’ hands, it is natural that the assessee has stated these facts based on the prevailing practice of the industry in the area. 9. On consideration of above facts, records and submission filed by the assessee, we find that it is an undisputed fact that the Assessee made Sales to M/s DungarmalKhanchand and M/s Rishabh International. The goods as sold by the assessee were credited in its Profit & Loss account under the head of sales and accordingly offered net profit on the said amount for tax. The consideration as realized by the assessee was also paid Ambika/Keshav Refinery (SS)65/Ind/2016 and others 30 immediately to the supplier from whom raw material namely, solvent oil was purchased. We find that the assessee had submitted copies of the C-forms received from these parties against sales made to them. C – Form is issued by the Sales Tax Department to the Purchaser to make interstate purchase at subsidized rates. The C-form received by the assessee contains the details of the invoice no., date and amount of sales made to M/s DungarmalKhanchand and M/s Rishabha International. The assessee had also submitted copy of Sales tax Assessment Order passed for F.Y. 2006-07 2007-08 and 2008-09 which mentioned the sales made to M/s DungarmalKhanchand and M/s Rishabh International. However, the Assessing Officer did not appreciate these documents and emphasized that not a single invoice raised by the assessee in the name of these parties were found during the course of search. During the course of appeal proceedings before CIT(A), the copy of VAT invoices and transport bills have also been furnished and the assessee claimed that the same were available in the office premises of the assessee but were not seized by the Department. However, during the course of search, the account maintained by the assessee, the Tally Software was seized and sales made to M/s Ambika/Keshav Refinery (SS)65/Ind/2016 and others 31 DungarmalKhanchand and M/s Rishabh International were duly recorded in the said account maintained in Tally Software which was also furnished in the Appellate Proceedings. The Ld. CIT(A) test-checked the same and found that the sales made to M/s DungarmalKhanchand and M/s Rishabh International are duly reflected in the Sales Register. Moreso, the assessee had also filed affidavits of M/s DungarmalKhanchand and M/s Rishabh International as submitted before the Sales Tax Authorities confirming the sales made to them. The Ld. CIT(A) has duly observed that these documents were available with Assessing Officer in the details filed by the assessee vide letter dt.25.02.2014 during the assessment proceedings. As regards the observation of Ld. A.O. that the signed cheques of M/s Dungarmal Khanchand and M/s Rishabh International were found and seized during the course of search, the assessee submitted that it is normal course of business practice to keep signed blank cheques of the customers for ease of business and as security. During the course of search proceedings various other cheques were found and seized as per LPS-7 belonging to other customers of the assessee. During the appellate proceedings, the assessee had also furnished copies of these Ambika/Keshav Refinery (SS)65/Ind/2016 and others 32 cheques. However, the Assessing Officer did not take any cognizance of the other cheques found and seized at the time of search. As regards the observation of A.O. that the Bank Accounts of both these firms were introduced by Smt. Rama Garg, the Assessee submitted that as these parties were Delhi based, to facilitate the business of an associate, the bank- introduction was done by Smt. Rama Garg, therefore, no adverse inference can be drawn from this in the absence of any other corroborating evidence. We also find that the Assessing Officer had obtained the Bank Account statements of M/s Dungarmal Khanchand and M/s Rishabh International. In the F.Y. 2007-08 Rs. 29062995/- has been deposited in the account of M/s DungarmalKhanchand and Rs. 4616700/- in the bank account of M/s Rishabh International. The Assessing Officer asked the assessee to explain these cash deposits in the accounts of M/s Dungarmalkhanchand and M/s Rishabh International. In our considered opinion, the Assessing Officer has wrongly cast the onus on the assessee to explain these cash deposits and If any explanation was required, it was to be obtained from M/s Dungarmal Khanchand and M/s Rishabh International. Further, Mr. Laxmandas (Prop of Rishabh International) is also assessed Ambika/Keshav Refinery (SS)65/Ind/2016 and others 33 to income tax as is evident from the perusal of the Income Tax Website. Our view is supported by the ratio laid down in the following judicial pronouncements: Mumbai Bench of ITAT in the case of ITO vs. Surana Traders 93 TTJ 875 has held that :- "Merely because for he reasons that the purchase parties were not traceable, the assessee could not be penalized. In the sale documents the assessee has made available all necessary details i.e. the total weight sold as well as the rate per kilogram. Undisputedly, the assessee has maintained completed books of accounts along with day to day and kilogram to kilogram stock register and also submitted stock tally sheet along with the audited accounts ..........The assessee cannot be put to prove a negative. It was for the department to substantiate and prove the allegation being leveled by it. This, however, has not been done. Even in the remand report, the AO has stated that the sales were duly verified and found to be genuine. Since the purchases has been held to be genuine, ,the corresponding sales cannot, by any stretch of imagination be termed as hawala transactions. " Delhi Bench of ITAT in the case of ITO vs. Super Chemicals Distributors (2005) 1 SOT 102 (Del.) has held that:- "It was incumbent upon the assessing officer to found out actual location and present were about of the firm "A" and to verify the fact, and that simply because inspector was unable to locate firm 'A' ,the A. O. could not jump to conclusion that this was a bogus creditors and treat the same as cash credits u/s. 68 of the Act. " Indore Bench of ITAT in the case of ACIT vsDewas Soya Limited [ Appeal No ITA No 336/ Ind/ 2012 dt 31.10.2012 ] Ambika/Keshav Refinery (SS)65/Ind/2016 and others 34 for the Asst Year 2008-09 has also deleted similar additions. extract of the same is reproduced hereunder: “Uncontroverted the assessee was maintaining sale/stock register on day to day basis containing details of whole year which were placed before the learned CIT(A). It has been specifically observed by the learned first appellate authority that the assessee was maintaining complete quantitative records relating to purchase, production and sale which were properly accounted for. So far as cancellation of TIN by the Commercial Tax Authority is concerned, it was neither informed by the authorities to the assessee nor by the purchaser himself, therefore, at the later stage, the assessee cannot be punished for the deeds of somebody. Likewise, C-forms were issued and given to the assessee. The sale of such magnitude is normally possible through brokers and even otherwise so far as doing the business is concerned, it is up to the assessee. It is pertinent to mention here that evidence is furnished during first appellate stage by the assessee was forwarded to the Assessing Officer along with the written submissions and the copies of the comments of the Assessing Officer were given to the assessee, therefore, it cannot be said that the Assessing Officer was not provided any opportunity. Only after calling remand report the CIT(A) has decided the issue on merits. Under these circumstances there is no merit in the ground taken by Revenue with regard to violation of Rule 46A. If the purchasing dealers did not account for the transaction in their books, the assessee cannot be penalised. The learned CIT(A) has already dealt with the issue by following various pronouncements which are available at page 10 of the impugned order which has been reproduced above. The Hon'ble Apex Court in the case of LaxmichandBaijnath v. CIT; 35 ITR 416 held that amount credited in business books can normally be presumed as business receipts. The Hon'ble Patna High Court in Bahri Brothers (154 ITR 244) held that identity of creditors is not relevant for cheque transactions. In such a situation, if part payment through cheque/RTGS from the same party is accepted, how the cash sale which has been duly recorded can be doubted unless and until contrary material is Ambika/Keshav Refinery (SS)65/Ind/2016 and others 35 brought on record. So far as the meaning of expression "books" with respect to section 68 is concerned, the Hon'ble Punjab & Haryana High Court in the case of Smt. Shantadevi; 171 ITR 532 held that such books denotes books of assessee himself and not of other assessee, therefore, the assessee is responsible for his books only and not of the books of other parties. Detailed findings recorded by CIT(A) is as per material on record, therefore, do not warrant any interference. In this view of the matter, we find no infirmity in the order of the learned CIT(A) and accordingly affirm the same. In the result, the appeal of the Revenue stands dismissed.” Special Bench of I.T.A.T, Delhi Bench ‘A’ in the case of ManojAggarwal vs. DCIT & Others specifically in the case of Tejinder Singh (HUF) reported in (2009) 310 ITR (AT) 99 (Delhi)(SB) has held as under: “164. In his statement recorded by the AO during the course of assessment proceedings, the manner in which the jewellery was sold to M/s Bishan Chand Mukesh Kumar was explained by the assessee and the reason for making the sale of jewellery to a Delhi-based concern i.e. M/s Bishan Chand Mukesh Kumar was also explained by the assessee. Despite these depositions made by the assessee and the relevant documentary evidence produced by him in support of his claim of having sold the jewellery to M/s Bishan Chand Mukesh Kumar, the Assessing Officer treated the said sale as bogus mainly because M/s Bishan Chand Mukesh Kumar did not respond to the letters/summons issued by him and the Inspector deputed to visit the said concern could not trace it at the address given. As mentioned by the AO in the assessment order, no further enquiry, however, could be conducted by him in spite of the confirmation received from the said concern as the assessment was getting barred by limitation which he finally completed vide an order dated 27.3.2001. Taking note of this vital aspect of the matter and keeping in view the submissions made on behalf of the assessee before him, the learned CIT(A) sought a remand report from the AO. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 36 While seeking the said report, he directed the AO to make all the necessary enquiries in the matter and also to confront the assessee with all the material collected by him. Accordingly, enquiries were made by the AO with the Assessing Officer of M/s Bishan Chand Mukesh Kumar i.e. Deputy CIT, Central Circle-3, New Delhi who informed in his report that in pursuance of a search operation conducted, infer alia, in the case of ShriBishan Chand Aggarwal, partner of M/s Bishan Chand Mukesh Kumar, the case of M/s Bishan Chand Mukesh Kumar has been recommended for initiating proceedings Under Section 158BD. He also informed in his report that in-depth and detailed investigation was required to be done in order to verify the genuineness of purchase and sale of jewellery claimed to have been made by the said concern which might take some time. He, however, informed that the block assessment proceedings in the case of M/s BEMCO Jewellers Pvt. Ltd. wherein ShriBishan Chand Aggarwal was a director have already been completed in August, 2002 and the transactions of the said concern of purchase and sale of jewellery have been held to be bogus in the said assessment. These contents of the report sent by DCIT, Central Circle 3, New Delhi alongwith the report of the Inspector who was deputed to visit the shop of M/s Bishan Chand Mukesh Kumar incorporated by the AO in his remand report and a comment was given on the basis thereof that the transactions of M/s Bishan Chand Mukesh Kumar were also apparently bogus. Relying mainly on the said remand report submitted by the AO, the claim of the assessee of having sold the jewellery to M/s Bishan Chand Mukesh Kumar was held to be bogus by the learned CIT(A), 165. All these facts narrated above clearly show that the matter regarding genuineness of transactions of purchase and sale of jewellery by M/s Bishan Chand Mukesh Kumar was still under investigation/examination by the department and the same had not reached finality till the impugned order in the case of Tejinder Singh, HUF, i.e. assessee in the present case came to be passed by the learned CIT(A). Keeping in view the relevancy of the outcome in the case of M/s Bishan Chand Mukesh Kumar wherein the genuineness of the transaction relating to Ambika/Keshav Refinery (SS)65/Ind/2016 and others 37 purchase of jewellery claimed to be sold by the assessee was also under in-depth and detailed investigation at the relevant time and the finalization of the same subsequently with the Assessing Officer as well as learned CIT(A) taking a view against the assessee by holding the relevant transactions as bogus, Shri S.D. Kapila, Special Counsel for the Revenue, has filed the assessment order passed in the case of M/s Bishan Chand Mukesh Kumar as well as some other relevant documents such as copy of bank statement of M/s Bishan Chand Mukesh Kumar and statements of Sudhir Kumar and Sushil Kumar, mediators allegedly involved in arranging accommodation entries as additional evidence before the Tribunal which has been admitted. Thereafter, he also made a request on behalf of the Revenue for clubbing the appeals filed in the case of M/s Bishan Chand Mukesh Kumar and ShriManojAggarwal/Bemco with the appeal of the assessee for the consideration of this Special Bench which has been acceded to keeping in view that an in-depth and detailed investigation has been done in the said cases to ascertain the genuineness of the transactions of purchase and sale of jewellery and the final outcome of the said cases will be relevant to decide the issue involved in the appeal of the assessee. 166. After hearing the arguments of the learned representatives of all the sides in these cases, we felt that it would be appropriate to consider and decide the appeals filed in the case of M/s Bishan Chand Mukesh Kumar and ShriManojAggarwalBemcoJewellers first as the issue relating to genuineness of the transactions of purchase and sale of jewellery in the said cases have been investigated in detail and the decision thereon will have a direct bearing on the ultimate fate of the case of the assessee i.e. Tejinder Singh, HUF. Accordingly, the appeals filed in the case of M/s Bishan Chand Mukesh Kumar have already been disposed of by us in the foregoing portion of this order wherein the assessment made Under Section 158BC read with Section 158BD has been held to be bad in law on the grounds and for the reasons set out therein. Consequently, the said assessment made in the case of M/s Bishan Chand Mukesh Kumar has been quashed by us holding the same to be invalid and keeping in view this decision on the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 38 preliminary legal issues, we have refrained ourselves from considering and deciding the other issues involved in the said case on merits including the issue relating to genuineness of the transactions of purchase and sale of jewellery. Assuming the possibility of such an eventuality and keeping in view that the material collected during the course of assessment proceedings in the case of M/s Bishan Chand Mukesh Kumar, which has already been filed and admitted as additional evidence in the case of Tejinder Singh, HUF, can still be utilized, Shri S.D. Kapila has urged that the case of ShriTejinder Singh should be restored to the file of the Assessing Officer to consider and decide the same afresh in the light of the said additional evidence. He has submitted that this will also facilitate in giving an opportunity to the assessee to cross-examine the deponents whose statements have been sought to be relied upon by the department and also to rely upon the letters/affidavits of the said deponents which have been filed by him and admitted by the Tribunal as additional evidence. He has contended that this will enable the Assessing Officer to reach a proper conclusion after taking into consideration this entire evidence which has been gathered after the completion of assessment in the case of Tejinder Singh, HUF and which is relevant to decide the issues involved in the said case. Although this plea of Shri S.D. Kapila sounds to be logical and legally tenable, we find it difficult to accept the same in view of our decision rendered in the cases of ShriManojAggarwal and Bemco in the foregoing portion of this order. It is no doubt true that the jewellery by Tejinder Singh, HUF was sold to M/s Bishan Chand Mukesh Kumar and the issue about the genuineness of the transactions of purchase and sale of jewellery by M/s Bishan Chand Mukesh Kumar including the purchase of jewellery from the assessee has not been considered and decided by us on merits. However, a similar issue involved in the case of Bemco/ManojAggarwal has been considered and decided by us on merits. In the said cases, the facts involved were almost similar to the facts involved in the case of M/s Bishan Chand Mukesh Kumar inasmuch as the transactions relating to purchase and sale of jewellery were held to be bogus by the department alleging that such transactions were entered into in order to Ambika/Keshav Refinery (SS)65/Ind/2016 and others 39 give accommodation entries on commission basis. This allegation was based on the similar type and nature of evidence collected by the department and the modus operandi allegedly followed by Bemco/ManojAggarwal was the same as alleged to be followed by M/s Bishan Chand Mukesh Kumar while giving accommodation entries the form of bogus sales entries of jewellery. The case sought to be made out by the department about the alleged bogus purchase and sale of jewellery transactions on the basis of similar nature of evidence has been examined by us in detail and on such examination, we have held that the evidence collected by the revenue authorities was not sufficient to establish their stand that the jewellery transactions carried on by BemcoJewellers Pvt. Ltd. were only paper transactions or bogus and the same were put through by accommodation entries in order to earn commission income therefrom. We have found it difficult to reject the assessee's plea about the genuineness of the jewellery transactions as opposed to the normal course of human conduct even applying the principles laid down by the Hon'ble Supreme Court in the cases of Durga Prasad More (supra) and SumatiDayal (supra). We have also found that the circumstances surrounding the case were not strong enough to hold the claim of the assessee about genuineness of the jewellery transactions as totally unbelievable or outrageous. We have also found that no evidence of any consequence was unearthed during the course of search to directly show that the jewellery business was bogus and that it was only accommodation entry business. On the other hand, the evidence brought on record by the assessee especially the evidence in the form of sales tax assessment order wherein the transactions of purchase and sale of jewellery were accepted by the Sales- tax authorities was found to be reliable by us to support the case of the assessee that the relevant transactions of purchase and sale of jewellery were genuine.As the issue- involved in the case of Bemco/ManojAggarwal as well as all the material facts relevant thereto including the evidence brought on record are similar to the case of M/s Bishan Chand Mukesh Kumar, we are of the view that the decision rendered in the case of Bemco/Manoj Kumar on the said issue is applicable even in the case of M/s Bishan Chand Ambika/Keshav Refinery (SS)65/Ind/2016 and others 40 Mukesh Kumar with equal force and this being so, no meaningful purpose will be saved by sending the matter back to the AO for reconsideration and re-decision merely because the issue has not been decided on merits in the case of M/s Bishan Chand Mukesh Kumar. In our opinion, this exercise would prove to be merely academic and it would result only in multiplicity of litigation. In that view of the matter and keeping in view the reasons given above, we do not find any justifiable reason to send this matter to the Assessing Officer for reconsideration as sought by ShriKapila and following our conclusion drawn in the case of Bemco/ManojAggarwal, we hold that the transaction relating to sale of jewellery in the case of the present assessee i.e. Tejinder Singh, HUF is genuine. Accordingly, we delete the addition made by the Assessing Officer and confirmed by the CIT (Appeals) under Section 68 and allow this appeal of the assessee.” 10. On consideration of above in the light of the judicial pronouncements (supra), we find that the assessee had duly recorded the sales made to M/s Dungarmal Khanchand and M/s Rishabh International in its books of accounts and the same was not been questioned or doubted by the Assessing Officer and payments against these sales have been received through banking channel and duly supported by relevant documents. We also find that the Ld. Assessing Officer did not doubt the purchases as shown by the assessee in the books of accounts as in search proceedings, stock available at the time of search was verified by the Department with the books of accounts and at that time, no discrepancy was found in the stock. Most Ambika/Keshav Refinery (SS)65/Ind/2016 and others 41 importantly, the alleged cash was not deposited in assessee’s bank account but was deposited in the bank accounts of other assessees namely, M/s Dungarmal Khanchand and M/s Rishabh International which are duly assessed to tax. Therefore, we do not find any merit in the contention of the ld. CIT-DR that the assessee has brought its undisclosed income in its regular books of account through the said two parties. In view of these facts and circumstances of the case, we are of the view that the Assessing Officer was not justified in making additions to the total incomes of the assessee u/s 68 of the Act on account of cash deposits in the bank accounts of M/s Dungarmal Khandchand and M/s Rishabh International during the years under consideration. Thus, we find that the Assessing Officer made the additions on guess-work and surmises which do not have any basis, that too, without bringing any cogent and corroborative material or contrary evidence on record. Therefore, we do not find any reason to interfere with the findings of the Ld. CIT (A) and we hold that the Ld. CIT(A) rightly deleted the additions made by the A.O. Accordingly, the action of the Ld. CIT (A) in deleting the additions is confirmed. Thus, the appeals of Ambika/Keshav Refinery (SS)65/Ind/2016 and others 42 the Revenue for the Assessment Years 2007-08, 2008-09 and 2009-10 are dismissed. 11. So far as the Cross Objections filed by the assessee for the Assessment years 2007-08 , 2008-09 and 2009-10 are concerned, we find that the assessee filed these Cross objections on 07.06.2017 and there was a delay of 7 months in filing the same. The assessee filed application for Condonation of delay stating that the assessee was under genuine impression that since the ld. CIT(A) decided the appeals in favour of the assessee on merits, hence, no appeals were required to be filed on legal issue. However, on receipt of notice for fixation, it informed its Income Tax Counsel, who guided them to file cross-objections. The assessee filed the affidavit in support of the claim. On the other hand, ld. CIT-DR submitted that the delay should not be condoned. Having gone through the rival submissions and the contents of the affidavit, we find that there is reasonable cause for delay and since these cross objections are legal in nature, we admit these cross-objections for hearing. 12. In theses Cross Objections, the assessee contended that when nothing incriminating was found during the course of Ambika/Keshav Refinery (SS)65/Ind/2016 and others 43 search from the premises of the assessee then no addition can be made in the order passed u/s 153A r.w.s.143(3) of the Act. The assessee has raised the following legal ground for all the three years under consideration: - “. That on the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the assessment order passed u/s 153A /143(3) of the act even when no incriminating documents were found and seized from the premises of the assessee during the course of search.” 13. Facts, in brief, are that a search operation under section 132 of the Act was conducted at business of Ambika Group on 19.01.2012 and notice u/s 153A was issued in the case of assessee on 19.12.2012 and the Assessments u/s 153A r.w.s. 143(3) of the Act were framed on 07.03.2014. At the time of search, warrant was issued in the name of different family members of the assessee and on its business firm, the same is summarized as under:- S.No Name of the Persons Addresses 1 M/s Amika Refinery [ the assessee ] 82-A, Industrial Area, Mandsour 2 ShriVinod Kumar Garg [ he is also representing as a partner in the firm] 25, KeshavSadan, Shuivji Baser Nagar, Mandsour Ambika/Keshav Refinery (SS)65/Ind/2016 and others 44 3 ShriNavneetGarg 25, KeshavSadan, Shuivji Baser Nagar, Mandsour 4 ShriArunGarg 25, KeshavSadan, Shuivji Baser Nagar, Mandsour 5 Shri Ajay Garg 25, KeshavSadan, Shuivji Baser Nagar, Mandsour 6 M/s Keshav Industries P Limited 104, Bansiwalal Tower, AgrasenChouharaha, Indore It was submitted by the assessee that all the above premises belongs to Shri Vinod Garg and his other family members. Shri Kailash Chand Garg, brother of Shri Vinod Garg, resided separately is doing his independent business in the group name of M/s Ambika Solvex Limited and the business of Shri Vinod Garg is known in the name of M/s Ambika Refinery. However, the Assessing Officer while passing the present order u/s 153A of the Income Tax Act, has changed the view taken in the regular assessment and added an amount of Rs 20,18,55,695/- in the three different assessment years i.e. from 2007-08 to 2009-10. Ld. CIT(A) confirmed the action of the Assessing Officer on this legal issue. 14. Before us, the learned counsel for the assessee submitted that since nothing incriminating was found and seized during the course of search from the premises of the assessee, there Ambika/Keshav Refinery (SS)65/Ind/2016 and others 45 was no justification on the part of the Assessing officer to make additions in respect of items which were properly shown by the assessee in its Regular books of Accounts and duly incorporated in the Balance sheet. As on the date of search, the assessee had filed return of total income till the Asst Year 2011-12 and time for issuance of the notice u/s 143[2] of the Income Tax Act had also been expired till Asst Year 2010-11. Thus, learned Counsel for the assessee submitted that for the Asst Year 2008-09 and 2009-10, scrutiny assessment order was also passed u/s 143[3] of the Act wherein the entire amount of sales as made by the assessee was duly accepted as genuine. Copies of assessment order as passed in both the years were also filed which are placed on records The Ld. Counsel submitted that assessment years till A.Y. 2009-10 were non-abate assessment years and therefore, no addition was called for to the total income of the assessee in these years in absence of any incriminating documents found and seized during the course of search. The facts to this effect are summarised as under: A.Y. Date of filing of Return u/s 139(1) Time for issuance of the Date of search Date of issue of notice U/s 153A Original order passed Abate/ Non- abate Ambika/Keshav Refinery (SS)65/Ind/2016 and others 46 notice U/s 143[2] 2007-08 31/10/2007 30-09-2008 19-01-2012 19-12-12 143[1] Non-abate 2008-09 30/09/2008 30-09-2009 19-01-2012 19-12-12 143[3] Non-abate 2009-10 13/09/2009 30-03-2010 19-01-2012 19-12-12 143[3] Non-abate Therefore, the Ld. Counsel for the assessee vehemently argued that seized documents referred to by the Ld. Assessing Officer being cheque books of parties to whom goods have been sold by the assessee does not tantamount to incriminating documents as the Ld. A.O. made additions in respect of items which was properly shown by the assessee as Sales in its Regular books of Accounts and had been duly incorporated in the Audited Accounts. Thus no addition can be made to the total income of the assessee in absence of incriminating documents. The Ld. Counsel for the assessee also relied upon the following written submission: “ The assessing officer has added an amount of Rs 20,18,55,695/- to the income of the assessee in respect of cash deposited in the bank account of M/s Dungarmal Khanchand and in the bank account of M/s Rishabh International by holding that the said amount of cash was given by the assessee. Summary of the amount as added to the income of the assessee is as under:- S. No Asst Year M/s Dungarmal Khanchand M/s.Rishabh International Total [ Rs] Ambika/Keshav Refinery (SS)65/Ind/2016 and others 47 [Rs] 1 2007-08 3,75,20,000 4,38,80,000 8,14,00,000 2 2008-09 2,90,62,995 46,16,700 3,36,79,695 3 2009-10 6,92,46,000 1,75,30,000 8,67,76,000 13,58,28,995 6,60,26,700 20,18,55,695 1.6.2] Detail of sale made by the assessee to the above parties in the previous year’s relevant to the Asst Years 2007-08, 2008-09 and 2009-10 is as under:- S.No Asst Year M/s Dungarmal Khanchand [Rs] M/s.Rishabh International Total [ Rs] 1 2007-08 NIL 10,24,58,407 10,24,58,407 2 2008-09 5,16,81,362 NIL 5,16,81,362 3 2009-10 8,48,28,231 8,53,43,560 17,01,71,791 13,65,09,593 18,78,01,967 32,43,11,560 1.6.3] The assessing officer on inner Page Nos 4 to 6 of the assessment order, prepared a cash flow chart wherein the amount of cash as deposited by these parties in their bank account and cheques were issued in favour of the assessee was mentioned. Summary of the cash as deposited in their bank account prior to issuance of the cheques in favour of the assessee is as under:- S.No Asst Year M/s Dungarmal Khanchand [Rs] M/sRishabh International Total [ Rs] 1 2007-08 8,50,000 31,30,000 39,80,000 2 2008-09 NIL NIL NIL 3 2009-10 1,60,55,000 71,00,000 2,31,55,000 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 48 1,69,05,000 1,02,30,000 2,71,35,000 1.6.4] That the assessing officer himself in the assessment order, observed that cheques of Rs 1,02,30,000/- only was issued by M/s Rishabh International in favour of the assessee after depositing the cash in its bank account. Similarly, cheques of Rs 1,67,20,000/- only was issued in favour of the assessee against the cash of Rs 1,69,05,000/- as deposited by M/s Dungarmal Khanchand. Hence, the assessing officer was grossly erred in adding the entire amount of cash as deposited to the tune of Rs 20,18,55,695 in the bank account of both these parties to the income of the assessee even when cheques of Rs 2,69,50,000/- [ Rs 1,02,30,000/- + Rs 1,67,20,000/- ] only was issued in favour of the assessee. 1.7.1] The assessing officer added entire amount of cash as deposited in the bank account of these parties for the reason that certain Blank Cheque books were found from the premises of Shri Kailash Chand Garg, the father of the one of the partner of assessee firm. 1.7.2] That both the customers were actually belonged to Delhi, they have purchased material from the assessee and sold the same in cash or through cheque. That probably for business convenience they left cheque book with Shri Kailash Garg and not with the assessee firm. That mere cheque book as found in possession of ShriKailash Chand Garg does not proved that sales as shown by the assessee was not genuine. 1.7.3] That it is worth noting the assessee firm also engaged in sale of Soya Oil in cash from its factory premises and the said cash sales was not disputed by the Income Tax department. 1.7.4] The amount as received by the assessee firm from both these parties on account of sales made to them by the assessee firm and the said amount of sales were duly incorporated in the regular books of account of the assessee. Hence, there was no justification for further adding the same to the total income of the assessee more so when cash sales as shown by the assessee firm was duly accepted by the income tax department. 1.7.5] It was explained to the Ld. A.O. that case of the assessee firm was also scrutinized and assessment order was passed u/s 143(3) of the Income Tax in the Asst Years 2008-09 and 2009-10 wherein the entire amount of sales as made by the assessee was duly accepted as genuine. However while passing the assessment order based on the return filed in response to notice issued u/s 153A of the Income Tax Act, the view as taken earlier by the Department has been changed and the addition was made to the Total income of the assessee. The Ld. assessing officer for sake of making the addition had made addition even when no incriminating document was found from the premises of assessee. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 49 1.7.6] That since nothing incriminating was found and seized during the course of search, in that case there was no justification on the part of the Assessing officer to make addition in respect of items which was properly shown by the assessee in its Regular books of Accounts and duly incorporated in the Balance sheet. 1.7.7] That provisions of section 153A are special and independent code. That while issuing notice U/s 153A of the Income Tax Act, it is expected from the assessing officer that addition be made only on the basis of some documents found in possession of the assessee which indicate that particular transaction of the assessee was not genuine but the assessing officer was not justified in making additions on the basis of presumptions in respect of transactions properly recorded in the regular books of account of the assessee prior to the execution of the search. 1.8.1] That Hon’ble Delhi High Court in the case of Kabul Chawla [ Appeal No ITA 707/ 2014 dt 28-08-2015 ] after considering the all available decisions on this issue has held that [ refer paras 37 to 39 of the order]:- “ Summary of the legal position 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: I] Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. II] Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. III] The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs “in which both the disclosed and the undisclosed income would be brought to tax”. IV] Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment “can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material.” Ambika/Keshav Refinery (SS)65/Ind/2016 and others 50 V] In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. VI] Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. VII] Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 38] The present appeals concern AYs, 2002-03, 2005-06 and 2006- 07.On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. 39] The question framed by the Court is answered in favour of the Assessee and against the Revenue.” [ Emphasis Supplied ] 1.8.2] That Hon’ble Delhi High Court in its recent judgement in the case of Pr. CIT V/s Orchid Infrastructure Developers Pvt. Ltd. [ Appeal No ITA 161/2017 dt 28.03.2017] after considering the decision of Kabul Chawla on this issue has dismissed the appeal as filed by the Department by observing as under ( Para 2) :- “2. In ITA No.175/2017, the Court had observed as follows:- “The brief facts are that the assessee was subjected to search proceedings on 26.02.2009 and received a notice under Section 153A, to which it replied. For the concerned AY 2007-08, the AO added back `3,42,79,320/- on account of valuation of closing stock. The AO observed that the valuation was of the aggregate, without excluding the area that fell to the share of the collaborator. The CIT(A) endorsed the opinion of the AO and rejected the assessee’s appeal. The ITAT noticed the facts and ruling of this Court in CIT v. Kabul Chawla 380 ITR 573 and thereafter found as follows: Ambika/Keshav Refinery (SS)65/Ind/2016 and others 51 7. In this case, return of income for the year under consideration was filed on 06.11.2007 has attained finality on passing the assessment order u/s 143(3) on 30.12.2008. As it is observed from the records placed before us that there has been no reference to any incriminating document in respect of the addition made by the Assessing Officer. The Assessing Officer has completed the assessment and made addition without there being any seized material/documents. 8. The Ld. DR could not controvert the submissions made by the Ld. AR that there was no incriminating material that was found or seized during the search and seizure proceedings. Hence, the additions made in the assessment order by the Assessing officer in admittedly not based on any material found or seized during the course of search. 9. We are, therefore, of the opinion that the case of the assessee is squarely covered by the decision of CIT v. Kabul Chawla (supra). For the reasons set out above, we uphold the legal issue raised by the assessee in the cross objection and hold the impugned assessment as null and void.” In light of the findings of the ITAT which are consistent with the ratio in Kabul Chawla (supra), no question of law arises. The appeal is accordingly dismissed.” 3. For the above reasons, no question of law arises. The appeal is dismissed.” 1.8.4] That Hon’ble Indore Bench of ITAT in the case of M/s Anant Steels P Limited [ IT [SS]A Nos 31, 28, 29& 30/ Ind/2010 dt 18-11- 2015 as passed for the Asst Years 2001-02 to 2004-05] has held [ refer para 16 & 17 of the order of the bench] :- “ 16. We have heard rival contentions of both the parties. We have decided the issue that in absence of any incriminating material or documents seized during the course of search, the Assessing Officer cannot pass order u/s 153A r.w.s. sec. 143(3) of the I.T. Act in the case of Kalani Bros. in IT(SS)A No.71/Ind/2014 and others. The relevant portion of the order is reproduced hereunder: “8. In respect of 153A bad in law on the ground that original assessment proceedings u/s 143(3) was completed on 29.12.2006 (hereinafter referred as “original assessment order for ease of reference), the AO treated the said lease transaction as sale transaction and taxed the total security deposit receivable as sale consideration of sale of land. The addition made in the search assessment order pertained to the issue already dealt in the original assessment order i.e. lease transaction categorized as sale transaction. The fact that the aforesaid issue bears no relation to the any of the material / documents / records found and seized during the search action on 16.04.2009. Ld. CIT (A) has relied upon the Circular No. 7 of 2003 which clarifies the position of the pending appeals as on the date of the search. The relevant portion is produced herewith – Ambika/Keshav Refinery (SS)65/Ind/2016 and others 52 "The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate. It is clarified that the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate..........." Accordingly, as far as completed assessments are concerned, they do not abate. The AO cannot proceed to make the same addition in the block assessment without any incriminating material found in the course of search. The said view prevents the AO to undo what has already been completed and has become final in the original assessment proceedings. 9. We have heard both the sides. We have also gone through the case laws relied upon by both the sides. We have also considered various relevant facts of the case. It is a settled legal position that once a search and seizure action has taken place u/s 132 of the Act or a requisition has been made u/s 132A, the provisions of section 153A trigged and Assessing Officer is bound to issue notice u/s 153A of the Act. Once notices are issued u/s 153A of the Act then assessee is legally obliged to file return of income for six years. The assessment and reassessment for six years shall be finalised by the Assessing Officer. It is also held by various Courts that once notice u/s 153A of the Act issued, then assessment for six years shall be at large both for Assessing Officer and assessee have no warrant of law. It has been also held that in the assessment years where assessments have been abated in terms of second proviso to section 153A then Assessing Officer acts under original jurisdiction and one assessment is made for total income including the addition made on the basis of seized material. But where there is no abatement of assessments and assessments were completed on the date of search then addition can be made only on the basis of incriminating documents or undisclosed assets, etc. In these cases there was no incriminating document found and seized. No assessment proceedings were abated in these assessees. Thus assessments for these assessment years were completed on the date of search. The assessments were completed u/s 143(3) of the Act read with section 153A/153C of the Act after the search. There was no abatement of any proceedings in these cases for these assessment years in terms of second proviso to section 153A of the Act. There is no seized material belonging to the assessee which was found and seized in relation to additions made. In a recent decision, Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has held that completed assessments can be interfered with by the Assessing Officer while making assessment u/s 153A of the Act, only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search Ambika/Keshav Refinery (SS)65/Ind/2016 and others 53 which was not produced or not already disclosed or made known in the course of original assessment. In all these cases no assessments were pending on the date of search for these assessment years. No assessments were abated in terms of second proviso to section 153A of the Act. Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has considered various High Court decisions relied upon by the learned DR. The Hon'ble Delhi High Court has considered the cases of CanaraHousing Development Co. vs. DCIT; Madugula vs. DCIT; CIT vs. ChetandasLaxmandas and CIT vs. Anil Kumar Bhatia (supra). The only decision of the Hon'ble Allahabad High Court in the case of CIT vs. Raj Kumar Arora; 367 ITR 517 relied on by the learned DR was not considered by Hon'ble Delhi High Court while deciding the issue in the case of Kabul Chawla. The Hon'ble Allahabad High Court has reversed the order of the Tribunal and remanded the issue to the Tribunal to consider the appeal of the department on merits. It is a settled legal position that when two views are possible on a particular issue then the view favourable to the assessee should be followed as held by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products; 88 ITR 192. Respectfully following the decision of the Hon'ble Apex Court, we dismiss the ground of appeals of the Revenue. Departmental appeals are disposed accordingly.” 17. We, respectfully following the same, we allow the appeals on the ground of sec. 153A of the I.T. Act wherein we have already held that in absence of any incriminating documents found and seized during the course of search, the Assessing Officer is not justified in making the addition in non-abated assessment order while passing the order u/s 153A r.w.s. 143(3) of the Act. ” 15. Per contra, Ld. CIT-DR vehemently argued supporting the findings of both the lower authorities. 16. We have heard rival contentions and perused the records placed before us and carefully gone through the submissions made by both the sides. We find that the assessee has challenged the finding of Ld. CIT(A) upholding the validity of assessment even when no incriminating documents related to Ambika/Keshav Refinery (SS)65/Ind/2016 and others 54 the assessee were found and seized from the possession of the person in whose case search was executed and more so when no addition was made in respect of the said incriminating documents referred to by the Ld. Assessing Officer. We have also gone through the loose papers seized during the course of search being cheque books which have been placed on Page No. 424- 469 of the paper book. We are of the view that these papers being cheque books issued by the bank were not incriminating in nature. Further, it is uncontroverted finding of fact that the Ld. Assessing Officer has made additions in respect of cash deposited by these parties in their bank accounts and amount transferred by them to the assessee. However, in light of the facts re-iterated above and after going through the findings of the decision of Hon’ble Delhi High Court in case of CIT v. Kabul Chawla, (2016) 2 ITJ Online 869 (Delhi) : (2016) 380 ITR 573 : (2015) 281 CTR 45 : (2015) 234 Taxman 300 and also decision of Pr. CIT v. MeetaGutgutia, (2020) 8 ITJ Online 273 (Delhi) : (2017) 395 ITR 526, we are of the considered view that proceedings initiated u/s 153A of the Act for the A.Y. 2007-08 to 2009-10 being non-abated and completed assessments deserve to be quashed since no incriminating material was found during Ambika/Keshav Refinery (SS)65/Ind/2016 and others 55 the course of search thereby warranting initiation of proceedings u/s 153A of the Act for these years. We, therefore, set aside the findings of Ld. CIT(A) on this ground and hold that proceedings initiated in the case of the assessee for A.Y. 2007-08 ,2008-09 and 2009-10 are without jurisdiction and consequently, assessments framed for these years are quashed and set aside. Accordingly, the only ground raised in all three Cross objections filed by the assessee is allowed. M/s. Keshav Industries - IT(SS)A Nos.62 & 63/Ind/2016 Assessment Years 2009-10 & 2010-11 17. The above captioned appeals at the instance of Revenue are directed against the respective orders of Ld. Commissioner of Income Tax(Appeals)-III, (in short ‘CIT(A)’), Indore dated 10.02.2016. Grounds of appeal in IT(SS) 62/Ind/2016 A.Y. 2009-10– Departmental appeal “ 01. On the facts and in the circumstances of the case the Ld. CIT(Appeals) erred in deleting the addition made by the Ld. A.O. on account of Unexplained Cash Credit of Rs. 2,20,00,000/- without appreciating the facts and evidences brought into light by the A.O. during the Assessment Proceedings 02. On the facts and in the circumstances of the case the Ld. CIT(Appeals) has erred in stating that the proceedings u/s 153A is invalid as no incriminating documents were found during the search.” Grounds of appeal in IT(SS) 63/Ind/2016 A.Y. 2010-11– Departmental appeal Ambika/Keshav Refinery (SS)65/Ind/2016 and others 56 “ 01. On the facts and in the circumstances of the case the Ld. CIT(Appeals) erred in deleting the addition made by the Ld. A.O. on account of Unexplained Cash Credit of Rs. 2,34,00,000/- without appreciating the facts and evidences brought into light by the A.O. during the Assessment Proceedings 02. On the facts and in the circumstances of the case the Ld. CIT(Appeals) has erred in stating that the proceedings u/s 153A is invalid as no incriminating documents were found during the search.” 03. On the facts and in the circumstances of the case the Ld. CIT(Appeals) has erred in stating that the appellant is eligible for carry forward of unabsorbed depreciation after the computation of income for A.Y. 2009-10 then the benefit of the same should be allowed in this year.” 18. Facts, in brief, are that the assessee is a Private Limited company engaged in the business of Manufacturing and Refining of Edible Oil, Soya Lecithin, Briquettes and is also engaged in the trading activities of some of the commodities. Search and Seizure operations u/s. 132 of the Act were initiated in the Ambika Group by the DDIT(Inv.) on 19.01.2012. Subsequently, notices u/s. 153A of the Act were issued to the assessee on 19.12.2012 and in response, the assessee furnished returns for the respective assessment years. Thereafter, for all these assessment years the case of the assessee was selected for scrutiny and necessary notices u/s. 143(2) and 142(1) of the Act served upon the assessee. During the course of assessment proceedings, the Ld. A.O. has observed that that the assessee company has received share Ambika/Keshav Refinery (SS)65/Ind/2016 and others 57 application money from various companies in these assessment years. Most of these are Kolkata and Mumbai based investor companies. Various details were called for by the Assessing Officer in respect of said Investor Companies. The assessee filed the papers related to the Share application money and share capital received by the Investors, however the assessee failed to find any favour from the Ld. Assessing Officer and the ld. A.O. on the basis of the observation mentioned in the Assessment Order reached to a conclusion that entire amount received by the assessee towards Share Application money/ Share capital is an arranged affair and the assessee had routed its unaccounted money in the guise of Share Application Money. The A.O., therefore, treated the said amount of Share Capital/Share Application money received by the assessee as Unexplained Cash Credit u/s 68 of the Income Tax Act. Finally, the Assessing Officer framed the assessments for Assessment Years 2009-10 and 2010-11 u/s. 153Ar.w. Section 143(3) of the Act by passing a common Order dated 10.03.2014 after making the following additions: S. No. Assessment Year Addition in respect of Share Capital [InRs ] Ambika/Keshav Refinery (SS)65/Ind/2016 and others 58 01. 2009-10 2,20,00,000 02. 2010-11 2,34,00,000 19. Being aggrieved, the assessee filed appeals for both the said assessment years before the Ld. CIT(A). After considering the facts of the case and the Submissions made by the assessee the Ld. CIT(A) deleted the above mentioned addition as made by the Ld. Assessing Officer on account of unexplained cash credit u/s 68. Further, ld. CIT(A) also took into consideration the legal ground taken by the assessee in respect of additions made in 153A proceedings even when no incriminating documents were found from its premises and also allowed relief to the assessee on this legal issue also. 20. Being aggrieved, the Revenue is in appeal before this Tribunal for both the assessment years. As the issues raised in the appeals filed by the revenue are common, they were heard together and are being disposed off by this common order for sake of convenience and brevity. 21. At first, we are dealing with the Ground No.2 raised in the departmental appeals for the A.Y. 2009-10 and 2010-11 being legal in nature and which was allowed by the Ld. CIT(A) Ambika/Keshav Refinery (SS)65/Ind/2016 and others 59 in favour of the assessee. Facts, relating to the issue, are that as on the date of search, the assessee company had already filed its return of total income for the A.Y. 2009-10 and 2010- 11 and time limit for issuance of the statutory notice u/s 143[2] of the Income Tax Act stood expired till Asst Year 2010- 11. Summary of Income Tax return as originally filed by the assessee is as under:- S.No Asst Year Date of filing of the original return Time for issuance of the notice u/s 143[2] Date of search Date of issuance of notice u/s 153A 1 2009-10 09-12-2009 30-09-2010 19-01-2012 19-12-2012 2 2010-11 13-10-2010 30-09-2011 19-01-2012 19-12-2012 22. The Ld. CIT(A) has discussed this legal issue in detail on pages 8 to 12 for the A.Y. 2009-10 and 2010-11 in paras 5 to 5.4. Ld. CIT(A) accepted the arguments that in case of search assessments, additions can be made only on the basis of incriminating documents found during the course of Search. Since in the case of the assessee company, no such incriminating documents were found from its premises during the course of search, the additions as made by the Ld. A.O. to the total income of the assessee are not justified. The relevant part of the order of the ld. CIT(A) is as under:- Ambika/Keshav Refinery (SS)65/Ind/2016 and others 60 “5. Ground Nos. 1, 2 & 3 These grounds of appeal are regarding the validity of proceedings u/s 153A of the IT Act. The submissions filed by the appellant are reproduced here under for the sake of clarity: The Ld. AO has erred in ignoring the fact that this was not an abated assessment and hence the additions permissible would be only the ones emanating from the search action. In this case, a notice was issued to the assessee u/s 153A, however no incriminating material was found during the search with regards to the additions made by the AO_ It is a well decided judicial principal that the reassessments made by under section 153A, without any incriminating material being found during the search action are not in accordance with law and consequential result is that the return/ original assessments which have acquired finality are to be reiterated. The Hon'ble Bombay HC has held the same in the case of Allcargo Global Logistics Ltd. In this case, the Hon'ble Bombay HC had stated as follows: In the above case the Bombay HC stated that, '31. We, therefore, hold that the Special Bench's understanding of the legal provision is not perverse nor does it suffer from any error of law apparent on the face of the record. The Special Bench in that regard held as under: "48. The provision under section 153A is applicable where a search or requisition is initiated after 31.5.2003. In such a case the AO is obliged to issue notice u/s 153A in respect of 6 preceding years, preceding the year in which search etc. has been initiated. Thereafter he has to assess or reassess the total income of these six years. It is obligatory on the part of the AO to assess or reassess total income of the six years as provided in section 153A(1)(b) and reiterated in the 1st proviso to this section. The second proviso states that the assessment or reassessment pending on the date of initiation of the search or requisition shall abate. We find that there is no divergence of views in so far as the provision contained in section 153A till the 1st proviso. The divergence starts from the second proviso which states that pending assessment orreassessment on the date of initiation of search shall abate. This means that an assessment or reassessment pending on the date of initiation of search shall cease to exist and no further action shall be taken thereon. The assessment shall now be made u/s 153A. The case of14. Counsel for the assessee is that necessary corollary to this provision is that completed assessment shall not abate. These assessments become final except in so far and to the extent as undisclosed income is found in the course of search. On the other hand, it has been argued by the Ld. Standing Counsel that abatement of pending assessment is only for the purpose of avoiding two assessments for the same year, one being regular assessment and the other being assessment u/s 153A. In other words these two assessments coalesce into one assessment. The second proviso does not contain any word or words to the effect that no reassessment shall be made in respect of a completed assessment. The language is clear in this behalf and therefore literal interpretation should be followed. Such interpretation does not produce manifestly absurd or unjust results as section 153A(i)(b) and the first proviso clearly provide for assessment or reassessment of all six years. It may cause hardship to some assesses where one or more of such assessments has or have been completed before the date of initiation of search. This zs hardly of any Ambika/Keshav Refinery (SS)65/Ind/2016 and others 61 relevance in view of clear and unambiguous words used by the legislature. This interpretation does not cause any absurd etc. results. There is no casus omissus and supplying any would be against the legislative intent and against the very rule in this behalf that it should be supplied for the purpose of achieving legislative intent. The submissions of the Ld. Counsels are manifold, the foremost being that the provision u/s 153A should be read in conjunction with the provision contained in section 132(1), the reason being that the latter deals with search and seizure and the former deals with assessment in case of search etc, thus, the two are inextricably linked with each other cument". Clauses (a) and (b) of section 132(1) employ the words "books of account or other documents". For harmonious interpretation of this provision with provision contained in section 153A, all the three conditions on satisfaction of which a warrant of search can be issued will have to be taken into account. 51. Having held so, an assessment or reassessment u/s 153A arises only when a search has been initiated and conducted. Therefore, such an assessment has a vital link with the initiation and conduct of the search. We have mentioned that a search can be authorised on satisfaction of one of the three conditions enumerated earlier. Therefore, while interpreting the provision contained in section 153A, all these conditions will have to be taken into account. With this, we proceed to literally interpret to provision in 153A as it exists and read it alongside the provision contained in section 132(1). 52. The provision comes into operation if a search or requisition is initiated after 31.5.2003. On satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income of six years immediately preceding the year of search. The word used is "shall" and, thus, there is no option but to issue such a notice. Thereafter he has to assess or reassess total income of these six years. In this respect also, the word used is "shall" and, therefore, the AO has no option but to assess or reassess the total income of these six years. The pending proceedings shall abate. This means that out of six years, if any assessment or reassessment is pending on the date of initiation of the search, it shall abate. In other words pending proceedings will not be proceeded with thereafter. The assessment has now to be made u/s 153A (1)(b) and the first proviso. It also means that only one assessment will be made under the aforesaid provisions as the two proceedings i.e. assessment or reassessment proceedings and proceedings under this provision merge into one. If assessment made under sub-section (1) is annulled in appeal or other legal proceedings, then. the abated assessment or reassessment shall revive. This means that the assessment or reassessment, which had abated, shall be made, for which extension of time has been provided under section 153(3) 53. The question now is - what is the scope of assessment or reassessment of total income u/s 153A (1) (b) and the first proviso We are of the view that for answering this question, guidance will have to be sought from section 132 (1). If any books of account or other documents relevant to the assessment had not been produced in the course of original assessment and found in the course of search in our humble opinion such books of account or other documents have to be taken into account while making assessment or reassessment of total income under the aforesaid provision. Similar position will obtain in a case where undisclosed income or undisclosed property has been Ambika/Keshav Refinery (SS)65/Ind/2016 and others 62 found as a consequence of search. In other words, harmonious interpretation will produce the following results :- a) In so far as pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s 153A merge into one and only one assessment for each assessment year shall be made separately on the basis of the findings of the search and any other material existing or brought on the record of the AO, (b) in respect of non-abated assessments, the assessment will be made on the basis of books of account or other documents not produced in the course of original assessment but found in the course of search, and undisclosed income or undisclosed property discovered in the course of search. 54. It may be mentioned here that Ld. Counsel for All Cargo Global Logistics Ltd. was questioned about the scope of pending assessments as it was his contention that all six assessments are to be made, if necessary, on the basis of undisclosed income discovered in the course of search. He was specifically questioned about the jurisdiction of the AO to make original assessment along with assessment u/s 153A, merging into one. However he took an evasive view submitting that this question need not be decided in his case although the question of jurisdiction u/s 153A was vehemently pressed on account of which ground No.1 in the appeal for assessment year 2004-05 was admitted as additional ground. He also wanted the additional ground to be retained in case of any future contingency." For this purpose, we would also like to place reliance on the following other judgments: ■ ACIT Vs. M/ s Pratibha Industries Ltd. (17'A No. 2197 to 2199 f Mum / 2008, 2200 to 2201 Mum / 2008, rrA No. 2202 Mum 2008 and COs thereon order dated 19.12.2012). • C17' Vs. Priyanka Ship Breaking Co. Ltd. (2012126 Taxmartn.com 321 (Del.) ■ Gurinder Singh Bawa Vs. DCIT (2012) 28 Taxmann.com 328 (Mum) • LMJ International Ltd. Vs. DCIT (2008) 22 SOT 351 (Kol) • Suncity Alloys (P) Ltd. Vs. ACTT [2009] 124 TTJ 674(JD): ■ S.K. Jain Vs. ACTT Bhopal in 1T(SS).A.Nos 210 to 216 / Ind 2007 ■ CIT Vs. Anil Kumar Bhatia (2012) 24 Taxmann.com 98 (Del.) • CIT Vs. Lachman Das Bhatia (2012) 26 Taxmann.com 167 (Del.) ■ ACIT v. Asha Kataria (IT.A. Nos. 3105, 3106 & 3107/ Del/ 2011A.Yrs. : 2002-03 2003-04 &.; 2006-07 dt. 20-052073) • Kusum Gupta v. DCIT (1TA Nos. 4873/ De12009, (2005-06) 2510(A.Y. 2003-04), 3312 (A. Y. 2004-05) 28331 Del/ 2011 (A.Y. 2006-07) order dt. 28-03-2013) ■ DC1T Vs. Royal Marwar Tobacco Product (P.) Ltd [2009] 29 SOT 53 (AFID.)(UR0). Ambika/Keshav Refinery (SS)65/Ind/2016 and others 63 5.1 I have gone through the appellant's contentions. The Hon'ble ITAT, Indore Bench, Indore in IT(SS)A Nos. 71/Ind/2014 in the case of M/s Kalani Bros. has held as under:- In respect of 153A bad in law on the ground that original assessment proceedings u/s 143(3) was completed on 29.12.2006 (hereinafter referred as "original assessment order for ease of reference), the AO treated the said lease transaction as sale transaction and taxed the total security deposit receivable as sale consideration of sale of land. The addition made in the search assessment order pertained to the issue already dealt in the original assessment order i.e, lease transaction categorized as sale transaction. The fact that the aforesaid issue bears no relation to any of the material / documents records found and seized during the search action on 16.04.2009. Ld. CIT(A) has relied upon the Circular No. 7 of 2003 which clarifies the position of the pending appeals as on the date of the search The relevant portion is produced herewith – "The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A, as the case may be, shall abate, It is clarified that the appeal, revision or rectification proceedings pending on the date of initiation of search under section 132 or requisition shall not abate" Accordingly, as far as completed assessments are concerned, they do not abate. The AO cannot proceed to make the same addition in the block assessment without any incriminating material found in the course of search, The said view prevents the AO to undo what has already been completed and has become final in the original assessment proceedings. 9. We have heard both the sides. We have also gone through the case laws relied upon byboth the sides. We have also considered various relevant facts of the case. It is a settled legal position that once a search and seizure action has taken place u/s 132 of the Act or a requisition has been made u/s 132A, the provisions of section 153A trigged and Assessing Officer is bound to issue notice u/s 153A of the Act. Once notices are issued u/s 153A of the Act then assessee is legally obliged to file return of income for six years. The assessment and reassessment for six years shall be finalised by the Assessing Officer. It is also held by various Courts that once notice u/s Ambika/Keshav Refinery (SS)65/Ind/2016 and others 64 153A of the Act iss-ued, then assessment for six years shall be at large both for Assessing Officer and assessee have no warrant of law. It has been also held that in the assessment years where assessments have been abated in terms of second proviso to section 153A then Assessing Officer acts under original jurisdiction and one assessment is made for total income including the addition made on the basis of seized material. But where there is no abatement of assessments and assessments were completed on the date of search then addition can be made only on the basis of incriminating documents or undisclosed assets, etc. In these cases there was no incriminating document found and seized. No assessment proceedings were abated in these assessees. Thus assessments for these assessment years were completed an the date of search. The assessments were completed u/s 143(3) of the Act read with section 153A/ 153C of the Act after the search_ There was no abatement of any proceedings in these cases for these assessment years in terms of second proviso to section 153A of the Act. There is no seized material belonging to the assessee which was found and seized in relation to additions made. In a recent decision, Hon ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has held that completed assessments can be interfered with by the Assessing Officer while making assessment u/s 153A of the Act, only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which was not produced or not already disclosed or made known in the course of original assessment. In all these cases no assessments were pending on the date of search for these assessment years. No assessments were abated in terms of second proviso to section 153A of the Act. Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) has considered various High Court decisions relied upon by the learned DR. The Hon'ble Delhi High Court has considered the cases of Canara Housing Development Co. vs. DCIT; Madugula vs. DCIT; CIT us. Chetandas Laxmandas and CIT vs. Anil Kumar Bhatia (supra). The only decision of the Horible Allahabad High Court in the case of CIT vs. Raj Kumar Arora; 367 ITR 51 7 relied on by the learned DR was not considered by Hon'ble Delhi High Court while deciding the issue in the case of Kabul Chawla. The Hon'bie Allahabad High Court has reversed the order of the Tribunal and remanded the issue to the Tribunal to consider the appeal of the department on merits. It is a settled legal position that when two views are possible on a particular issue then the view favourable to the assessee should be followed as held by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products; 88 ITR 192. Respectfully following the decision of the Honble Ambika/Keshav Refinery (SS)65/Ind/2016 and others 65 Apex Court, we dismiss the ground of appeals of the Revenue. Departmental appeals are disposed accordingly." 5.2 The decision in the case of Kalani Bros. has again been followed by the Honble ITAT Indore Bench, Indore in the case of M/s Anant Steel Pvt. Ltd., Indore in IT(SS)A No 31,28,29 & 30/Ind/2010 vide order dated18.11.2015. 5.3 The Hon'ble ITAT Indore Bench, Indore while arriving at the above decision has discussed all the recent decisions on the issue of validity of sec. 153A in the absence of any incriminating documents found and seized during the course of search and held that it is a settled legal position that when two views are possible on a particular issue then the view favourable to the assessee should be followed as held by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products, 88 ITR 192. 5.4 In view of the fact that no incriminating document was found during the search and following the decisions of the Jurisdictional ITAT cited above, I allow the appeal on the ground of validity of proceedings u/s 153A of the IT Act. Ground Nos. 1, 2 and 3 are therefore allowed.” 23. Before us, learned Counsel for the assessee submitted that time for issuance of the notice U/s 143[2] expired for the Asst. year 2009-10 and 2010-11 and therefore both the assessment year are to be treated as concluded/non-abated assessment year and thus no addition could be made to the total income of the assessee in absence of any incriminating documents. Ld. Counsel for the assessee submitted that it is ample clear from the Assessment order that nothing incriminating was found from the premises of the assessee during the course of search but the Ld. Assessing officer only on the basis of information as provided Ambika/Keshav Refinery (SS)65/Ind/2016 and others 66 by the assessee during the course of assessment proceeding has passed the assessment orders. Thus, learned Counsel for the assessee submitted that since nothing incriminating was found and seized during the course of search, there was no justification on the part of the assessing officer to make additions in respect of items which were properly shown by the assessee in its Regular books of Accounts and duly incorporated in the Balance sheet. Ld. Counsel for the assessee also relied upon the following written submission: “01] Ground No. 2 of Departmental Appeal for A.Y. 2009-10 and 2010-11 1.1] That for all the three years under appeal the department has agitated following Ground which reads as under:- “On the Facts and circumstances of the case the Ld. CIT (A) has erred in stating that the proceedings u/s 153A is invalid as no incriminating documents were found during search.” 1.2] That as submitted above, search U/s 132 of the Income Tax Act was executed at Ambika Group on 19.01.2012.That in response to notices as issued U/s 153A of the Income Tax Act , return of income were filed by the assessee company. 1.3.1] That during the course of search, nothing was found incriminating in nature from any of the above premises of the assessee as mentioned in Para A.3 of this Synopsis. 1.3.2] That as on the date of search, the Assessee company had filed return of total income till the Asst Year 2011-12 and time for issuance of the notice u/s 143[2] of the Income Tax Act has also been expired till Asst Year 2010-11. That Income tax return till Asst Year 2011-12 has already been filed by the company prior to the date of search. 1.3.3] Summary of Income Tax return as originally filed by the assessee is as under:- S. Asst Year Date of filing of Time for issuance of Date of search Date issuance Ambika/Keshav Refinery (SS)65/Ind/2016 and others 67 No the original return the notice u/s 143[2] of notice u/s 13A 1 2009-10 09-12-2009 30-09-2010 19-01-2012 19-12-2012 2 2010-11 13-10-2010 30-09-2011 19-01-2012 19-12-2012 3 2011-12 16-10-2011 30-09-2012 19-01-2012 19-12-2012 1.3.4.1] That from the above table it is clear that time for issuance of the notice U/s 143[2] was expired for the Asst year 2009-10 and 2010-11 and therefore both the assessment year are to be treated as concluded Assessment year or non- abated assessment year. 1.3.4.2] That even for the Asst Year 2011-12, no notice was issued either U/s 143[2] of the Act or U/s 153A of the Act till 30-09-2012 and therefore the said assessment year is also converted into non- abated assessment. 1.3.4.3] That as per second proviso to section 153A of the Income Tax Act read as under:- “Provided further that assessment or re-assessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year or years referred to in this sub-section pending on the date of initiation of the search under section 132 of making of requisition under section 132A as the case may be, shall abate.” 1.3.4.4] The language of provision of sub- section [2] of section 153A of the Income Tax Act read as under:- “ (2) If any proceeding initiated or any order of assessment or reassessment made under sub- section [1] has been annulled in appeal or any other legal proceeding, then , notwithstanding anything contained in sub- section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub- section (1) , shall stand revived with effect from the date of receipt of the order of such annulment by the Principal Commissioner of Commissioner: 1.3.4.5] That on collective reading of second proviso to section 153A of the Income Tax Act with sub- section [2] of section 153A of the Income Tax Act it is clear that the said assessment proceeding will fall under the pending assessment case which is pending as on the date of search where notice U/s 143[2] of the Act was issued or notice U/s 153A of the Act was issued prior to the last date on which notice U/s 143[2] can be issued. That in the present case notice U/s 143[2] for the A.Y. 2011-12 can be issued till 30.09.2012 but in this case neither notice U/s 143[2] of the Act was issued nor notice U/s 153A of the Income Tax Act was issued and therefore in case when the search was annulled, the said assessment year cannot be revived and the assessing officer was not empowered to pass an order in the Asst Year 2011-12. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 68 1.3.4.6] That in view of the above facts of the case, it is clear that the assessment year 2011-12 was also non- abated assessment and the assessing officer was not justified in adding the amount of share capital in absence of any incriminating documents. 1.3.4.7] That Hon’ble Mumbai Bench of ITAT in the case of ACIT v/s Pratibha Industries Limited as reported in 141 ITD 0151 has also expressed similar view. 1.3.5] That it is settled position of law that in case of non- abated Assessment year, Addition to the Total Income of an Assesse can be made only on the basis of incriminating documents found and seized during the course of search. Since, in the case of assesse company nothing incriminating was found and seized during the course of search hence, no addition on account of share application money/ share capital can be made to the its income. The said issue stand now settled. 1.4.1] The assessing officer in Para 12 on inner Page No 4 of the Assessment order has categorically stated that:- “12. Share Application Money: During the course of assessment proceedings, it is found that the assessee company has received share application money from various companies in various assessment years. Most of these are Kolkata and Mumbai based investor companies. Details of the share application money received by the assessee company are as under:- ........................ ” 1.4.2] That from the above para it is clear that nothing incriminating was found from the premises of the assesse during the course of search but the Ld. Assessing officer only on the basis of information as provided by the assessee during the course of assessment proceeding has passed the assessment order. 1.4.3] That since nothing incriminating was found and seized during the course of search, in that case there was no justification on the part of the Assessing officer to make addition in respect of items which was properly shown by the assessee in its Regular books of Accounts and duly incorporated in the Balance sheet. 1.5] That provisions of section 153A are special and independent code. That while issuing notice U/s 153A of the Income Tax Act, it is expected from the assessing officer that addition be made only on the basis of some documents found in possession of the assessee which indicate that particular transaction of the assessee was not genuine but the assessing officer was not justified in making additions on the basis of presumptions in respect of transactions properly recorded in the regular books of account of the assessee prior to the execution of the search. 1.6.1] That Hon’ble Delhi High Court in the case of Kabul Chawla [ Appeal No ITA 707/ 2014 dt 28-08-2015 ] after considering the all available decisions on this issue has held that [ refer paras 37 to 39 of the order]:- Ambika/Keshav Refinery (SS)65/Ind/2016 and others 69 “ Summary of the legal position 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: I] Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. II] Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. III] The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs “in which both the disclosed and the undisclosed income would be brought to tax”. IV] Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment “can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material.” V] In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. VI] Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. VII] Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 38] The present appeals concern AYs, 2002-03, 2005-06 and 2006- 07.On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 70 search, no additions could have been made to the income already assessed. 39] The question framed by the Court is answered in favour of the Assessee and against the Revenue.” [ Emphasis Supplied ] 1.6.2] That Hon’ble Delhi High Court in its recent judgement in the case of Pr. CIT V/s Orchid Infrastructure Developers Pvt. Ltd. [ Appeal No ITA 161/2017 dt 28.03.2017] after considering the decision of Kabul Chawla on this issue has dismissed the appeal as filed by the Department by observing as under ( Para 2) :- “2. In ITA No.175/2017, the Court had observed as follows:- “The brief facts are that the assessee was subjected to search proceedings on 26.02.2009 and received a notice under Section 153A, to which it replied. For the concerned AY 2007-08, the AO added back `3,42,79,320/- on account of valuation of closing stock. The AO observed that the valuation was of the aggregate, without excluding the area that fell to the share of the collaborator. The CIT(A) endorsed the opinion of the AO and rejected the assessee’s appeal. The ITAT noticed the facts and ruling of this Court in CIT v. Kabul Chawla 380 ITR 573 and thereafter found as follows: 7. In this case, return of income for the year under consideration was filed on 06.11.2007 has attained finality on passing the assessment order u/s 143(3) on 30.12.2008. As it is observed from the records placed before us that there has been no reference to any incriminating document in respect of the addition made by the Assessing Officer. The Assessing Officer has completed the assessment and made addition without there being any seized material/documents. 8. The Ld. DR could not controvert the submissions made by the Ld. AR that there was no incriminating material that was found or seized during the search and seizure proceedings. Hence, the additions made in the assessment order by the Assessing officer in admittedly not based on any material found or seized during the course of search. 9. We are, therefore, of the opinion that the case of the assessee is squarely covered by the decision of CIT v. Kabul Chawla (supra). For the reasons set out above, we uphold the legal issue raised by the assessee in the cross objection and hold the impugned assessment as null and void.” In light of the findings of the ITAT which are consistent with the ratio in Kabul Chawla (supra), no question of law arises. The appeal is accordingly dismissed.” 3. For the above reasons, no question of law arises. The appeal is dismissed.” Ambika/Keshav Refinery (SS)65/Ind/2016 and others 71 24. Per contra Ld. DR vehemently argued supporting the findings of both the lower authorities. 25. We have heard rival contentions and perused the records placed before us and carefully gone through the submissions made by both the sides. We find that the Revenue has challenged the findings of Ld. CIT(A) quashing the validity of assessments as no incriminating documents related to the assessee were found and seized from the possession of the person in whose case search was executed and more so when no addition was made in respect of the said incriminating documents referred to by the Ld. Assessing Officer. We find that the Ld. assessing officer in Para 12 on inner Page No 4 of the Assessment order has categorically stated that:- “ 12. Share Application Money: During the course of assessment proceedings, it is found that the assessee company has received share application money from various companies in various assessment years. Most of these are Kolkata and Mumbai based investor companies. Details of the share application money received by the assessee company are as under:- ........................ ” 26. From the above, it is clear that nothing incriminating was found from the premises of the assessee during the course of search but the Ld. Assessing officer only on the basis of Ambika/Keshav Refinery (SS)65/Ind/2016 and others 72 information as provided by the assessee during the course of assessment proceeding has passed the assessment order, therefore, since nothing incriminating was found and seized during the course of search, there was no justification on the part of the assessing officer to make addition in respect of items which were properly shown by the assessee in its Regular books of Accounts and duly incorporated in the Balance sheet. In light of the facts re-iterated above and after going through the findings of the decision of Hon’ble Delhi High Court in case of CIT v. Kabul Chawla, (2016) 2 ITJ Online 869 (Delhi) : (2016) 380 ITR 573 : (2015) 281 CTR 45 : (2015) 234 Taxman 300 and also decision of Pr. CIT v. Meeta Gutgutia, (2020) 8 ITJ Online 273 (Delhi) : (2017) 395 ITR 526, as well as the decision of Jurisdictional ITAT Indore Bench in the case of Kalani Industries IT (SS)A Nos. 71/Ind/2014 (supra) and in the case of M/s Anant Steel Pvt. Ltd. Indore in IT (SS)A No. 31,28,29, & 30/Ind/2010 vide order dt. 18.11.2015, we are of the considered view that since no incriminating material was found during the course of search thereby warranting initiation of proceedings u/s 153A of the Act for these years, the proceedings as initiated u/s 153A of the Act by the Ld. A.O. for the A.Y. 2009-10 and 2010-11 being Ambika/Keshav Refinery (SS)65/Ind/2016 and others 73 non-abated and completed assessments deserve to be quashed. Therefore, we confirm the order of the ld. CIT(A) on this issue. Accordingly, ground no.2 raised in both the departmental appeals are dismissed. 27. Now, as regards ground no.1 raised in both the departmental appeals, the same pertains to the merits of the case being deletion of additions u/s 68 as made by the Assessing Officer to the total income of the assessee company in respect of Share Capital / Share Application money received. Brief facts as culled out from the records are that the assessee has received amounts of Rs. Rs.2,20,00,000/- and Rs. 2,34,00,000/- as Share Application Money / Share Capital during the Assessment year 2009-10 and Assessment Year 2010-11, respectively. During the course of assessment proceedings Ld. A.O. observed that that the assessee company has received share application money from various companies and these are Kolkata and Mumbai based investor companies. The Ld. A.O. also observed the following points with respect to the Share Applicant Companies. i) The entire investment by these companies has been made in unquoted and private companies Ambika/Keshav Refinery (SS)65/Ind/2016 and others 74 ii) Line of business has been stated in most of the companies as trading in shares but net income is shown either nil or very low, which clearly suggests that these companies are accommodation entry providers only. iii) The common feature which emerges from the perusal of balance sheets and profit and loss accounts of all these companies is that these companies has entire investments in unquoted shares from which no income is being earned. iv) The turnovers of these companies are not commensurate with the net worth of the company. Further, there is either loss or negligible profit. v) It is also notable here that the reserves & surpluses are more than 15-18 times of share capital, which in turn suggests that these companies have raised the share capital on substantial premium from dummy share holders/ accommodation entries. Their share premium is also not justified considering the fact that all these companies have no profitability. Therefore, it can be inferred that these companies are only paper companies. Accordingly the Assessing Officer asked the assessee to furnish the relevant information. In response, the assessee filed the papers related to the Share application money and share capital received by the Investors. However, the assessee did not find any favour from assessee and ultimately the Assessing Officer made the additions of Rs. 2,20,00,000/- and Rs.2,34,00,000/- for the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 75 Assessment years 2009-10 and 2010-11, respectively, u/s 68 of the Act to the Total income of the assessee. 28. Being Aggrieved, the assessee challenged the action of Assessing officer before the Ld. CIT(A). The Ld. CIT(A) going through the facts, submissions and judicial pronouncements deleted the additions thereof. The relevant discussion made by the Ld. CIT(A) in A.Y. 2009-10 is reproduced hereunder:- “3. This Ground of Appeal is regarding the addition of Rs. 2,20,00,000/- to the Total income in respect of the Share Application Money received by the Appellant. During the year under consideration the appellant has received share application money of Rs. 2,20,00,000/-, the details of which are as under:- S. No. Name of Applicant Address of theApplicant PAN Amount received during the year 1 KOEL VYAPAAR PRIVATE LIMITED 71 Canning Street Kolkata AADCK0172F 2000000 2 KINESCOPE (INDIA) PRIVATE LIMITED Andir Road Near Sangeeta theatre Mumbai AABCK0527E 5500000 3 GARRISON PHARMA (INDIA) LIMITED Near M.J.Market Kalbadevi Road Mumbai AAACG0568N 1500000 4 SEPIA VENTURE PRIVATE LIMITED 105 Sagar Shopping Centre JP Road Andheri West Mumbai AALCS3667F 2000000 5 NAMRATA CAPITAL PRIVATE LIMITED A-40 Kamdhenu Complex Opp. Sahj Anand College Nr .Panjra Poll Ambawadi Ahmedabad AACCN1868N 1000000 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 76 6 G P ORGANISERS PRIVATE LIMITED Vasy Niwas B/H B.N.Chamber Alkapuri Club road Vadodara AACCG4520C 1000000 7 CHANDRAMUKHI VANIJYA PRIVATE LIMITED 2/E Confield Road Ground Floor Kolkatta AADCCOHCF 1000000 8 ARON COMMODITIES PRIVATE LIMITED L1 Mistry Industrial Complex Mide Cross Road Andheri East Mumbai AAHCA5900B 2500000 9 JEEVIKA MERCANTILE PRIVATE LIMITED L1 Mistry Industrial Complex Mide Cross Road Andheri East Mumbai AACCJ1546P 2500000 10 AAFREEN MULTI TRADE PRIVATE LIMITED L1 Mistry Industrial Complex Mide Cross Road Andheri East Mumbai AAHCA6402C 2000000 11 ADRIKA COMMODITIES PRIVATE LIMITED L1 Mistry Industrial Complex Mide Cross Road Andheri East Mumbai AAHCA6401B 1000000 22000000 3.1 The Submissions filed by the Appellant are reproduced hereunder for the sake of clarity “ During the course of the assessment proceedings, the AO had asked the assessee to establish the identity and creditworthiness of the share applicants and the genuineness of the transactions. In response to this, the assessee vide its letter dated 25.02.2014 filed the complete details of all the share applicants such as Copy of Share Application Forms, Copy of Bank Statement of the Assessee company reflecting the above share application money received by it, Copy of PAN Card, MOA/AOA of the said companies, Copy of Income Tax Returns, Copy of Audited Balance Sheet of the said companies etc. A copy of the submission dated 25.02.2014 has been attached herewith for your reference. Thus, the assessee clearly discharged the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 77 primary onus of proving the identity, creditworthiness and genuineness of these parties. However, the Ld. AO, vide his order dated 10/03/2014, erroneously ignored this and held that the assessee had failed to prove the identity and creditworthiness of the creditors and genuineness of the transaction. Extracts of the abovementioned have been reproduced herein below:- “12.3... The assessee has not been able to explain as to why companies based in Ahmedabad, Kolkata and Mumbai will invest in shares of a Pvt Ltd company whose principal place of business is Mandsaur. 12.4 The assessee has also not explained how these companies contacted the assessee company. 12.5 On perusal of details filed by the assessee in respect of these companies also reveals that the said companies are only paper companies. On verification of records, following points were observed with respect to share applicant companies: i) The entire investment by these companies has been made in unquoted and private companies ii) Line of business has been stated in most of the companies as trading in shares but net income is shown either nil or very low, which clearly suggests that these companies are accommodation entry providers only. iii) The common feature which emerges from the perusal of balance sheets and profit and loss accounts of all these companies is that these companies has entire investments in unquoted shares from which no income is being earned. iv) The turnovers of these companies are not commensurate with the net worth of the company. Further, there is either loss or negligible profit. v) It is also notable here that the reserves & surpluses are more than 15-18 times of share capital, which in turn suggests that these companies have raised the share capital on substantial premium from dummy share holders/ accommodation entries. Their share premium is also not justified considering the fact that all these companies have no profitability. Therefore, it can be inferred that these companies are only paper companies. 12.6 Section 68 clearly provides that if the assessee is not able to give satisfactory explanation as to the “nature and source” of a sum found credited in his books, the sum may be treated as the “undisclosed income” of the assessee. In the case under consideration, the assessee has failed to provide satisfactory explanation as to the “nature and source” of a sum found credited in his books. Merely, based on arranged affairs and supporting documents, the identity cannot be said to be established. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 78 12.7 The assessee has not been able to justify the intention of making investment by these companies in the assessee company. There is nothing on record to suggest how these parties were contacted by the assessee company, who are the directors of these companies, how they are known to the assessee company. The assessee company was not a dividend paying company and hence no common men of prudence will invest in such a company. In fact the assessee company itself has shown meager incomes in these years. Therefore, it is nothing but an arranged affair and the assessee has routed its unaccounted money in the guise of share application money.” In view of the above, the AO held that the assessee has failed to prove the identity and creditworthiness of the creditors and the genuineness of the transactions in respect of the amounts credited in the books of the assessee. At the outset, we would like to state that the AO erred in ignoring various decisions on this issue including the landmark judgement of the Hon’ble SC in the case of Lovely Exports. It is relevant to mention here that the assessee had submitted various rulings in it’s favour during the course of the assessment proceedings, vide it’s letter dated 25.02.2014. However, the AO has conveniently ignored all of them in his order without giving any basis whatsoever. The AO has also not been able to cite any rulings on the basis of which he held that the assessee had failed to discharge his onus. The AO has thus, erred grossly in law as well as in facts in ignoring the various judicial precedents and has caused extreme hardship to the assessee in the process. Besides the above, it is important to mention that the Finance Act, 2012 added a proviso to section 68 which provided that the onus of proof on the closely held company receiving the share application money/share capital/share premium/any such amount to prove that such money is invested in the company belongs to the person who has given the money to the company. Otherwise, the money so received shall be taxable in the hands of the company as unexplained cash credit u/s 68. The above addition to Section 68 was made vide Finance Act, 2012 whereas the assessee’s case relates to the A.Y. 2009-10 and thus the above addition is not applicable to the assesse company. The above amendment was inserted because of the very reason that the provisions existing prior to the amendment did not put the onus on the closely held company to prove the source of money in the hands of it’s shareholders. Thus, the AO erred in ignoring the fact that the company was not required to prove the source of income in the hands of it’s shareholders. With regards to the same, we would like to place reliance on the decision of the Hon’ble Supreme Court of India in the case of Lovely Exports (P) Ltd., in which the Hon’ble SC had held that: Ambika/Keshav Refinery (SS)65/Ind/2016 and others 79 “If the share application money is received by the assesse-company from alleged bogus shareholders, whose names are given to the assessing officer, then the department is free to proceed to reopen their individual assessments in accordance with law but this amount of share money cannot be regarded as undisclosed income under section 68 of the assesse company.” The Hon’ble Supreme Court thus held that there is no onus on the company to prove the source of money in the hands of shareholder or the persons making payment of share application money. If company identifies the persons from whom money has been received, then section 68 cannot be involved in the hands of the company. Thus the AO erred in ignoring the Order of the Hon’ble SC while making the addition u/s 68 in this case. In addition to the above, the assessee would also like to place reliance on the following other decisions of various High Courts which have followed the same ruling: • COMMISSIONER OF INCOME TAX vs. CREATIVE WORLD TELEFILMS LTD (2011) 333 ITR 100 (Bom): In this case, the Hon’ble Bombay High Court held that when the assessee had given the details of name and address of the shareholder, their PAN/GIR number and had also given the cheque number, name of the bank and the AO did nothing except issuing summons which were ultimately returned back with an endorsement "not traceable", Tribunal was justified in deleting the addition of cash credit in respect of share application money. • COMMISSIONER OF INCOME TAX vs. JAY DEE SECURITIES AND FINANCE LTD.(2013) 350 ITR 220 (All): In this case, the Hon’ble Allahabad High Court held that the Tribunal recorded findings that the assessee had produced the return of income filed by the relevant shareholders who had paid share application money. The assessee had also produced the confirmation of shareholders indicating the details of addresses, PAN and particulars of cheques through which the amount was paid towards the share application money. The Tribunal thereafter relied upon the judgment of the Supreme Court in CIT vs. Lovely Exports (P) Ltd wherein it was held that if the assessee produces the names, addresses, PAN details of the shareholders then the onus on the assessee to prove the source of share application money stands discharged. If the Assessing Authority was not satisfied with the creditworthiness of the shareholders, it was open to the Assessing Authority to verify the same in the hands of the shareholders concerned. In view of the decision of the Supreme Court, we dismiss the appeals with observations that the department is free to proceed to reopen their individual assessments of the shareholders whose names and details were given to the AO. CIT vs. Lovely Exports (P) Ltd 216 CTR 195. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 80 • COMMISSIONER OF INCOME TAX vs. SIRI RAM SYAL HYDRO POWER (P) LTD.(2011) 196 TAXMAN 441 (Del): In this case, the Hon’ble Delhi Court held that in view of the decision of the Supreme Court in the case of CIT vs. Lovely Exports (P) Ltd. (2008) 216 CTR (SC) 195, and the approach of the CIT(A) and the Tribunal being in consonance with the said decision, the share application money received from the director of the respondent company for which confirmation and PAN were furnished, could not be regarded as the undisclosed income under s. 68. • COMMISSIONER OF INCOME TAX & ANR. vs. ARUNANANDA TEXTILES (P) LTD.(2011) 333 ITR 116 (Kar): In this case, the Hon’ble Karnataka Court held thatwhere assessee was able to identify the shareholders by the persons who deposited the amount as shareholders, addition of the amount of such share application money cannot be made in the hands of the company treating the amount as undisclosed income; it is not for the assessee- company to establish but it is for the Department to enquire with the investors about the capacity to invest the amount in the shares. • COMMISSIONER OF INCOME TAX vs. ELECTRO POLYCHEM LTD.(2008) 217 CTR (Mad) 371: (2007) 294 ITR 661 : (2008) 9 DTR 61: In this case, the Hon’ble Madras Court held that Even if it be assumed that the subscribers to the increased share capital were not genuine, under no circumstances the amount of share capital could be regarded as undisclosed income of the company. The Jurisdictional Indore Tribunal has also recently followed the SC ruling of Lovely Exports in the following decisions: • M/s. Swift Intermedia Convergence Ltd & Others v/s DCIT- 3(1), Indore ITA No. 566, 564 and 543 of 2013, ITAT Indore “On consideration of above and respectfully following the decision of the jurisdictional High Court in the case of CIT vs. STL Extrusion, 53 DTR 97 and decision of jurisdictional High Court in the case of CIT vs. Peoples General Hospital (Appeal No.27/2008) (supra) and the decision of Hon'ble Supreme Court in the case of Lovely Export (supra), 11 TTJ 357, dismiss the departmental appeal on the issue of share application money. Ld. CIT(A) is justified in holding the share application money of Rs.4.79 crores as explained u/s 68 of the I.T. Act.” • M/s Anant Steel &Shivangi Rolling (SS) 133, 134, 146 & 147 of 2013, ITAT Indore Ambika/Keshav Refinery (SS)65/Ind/2016 and others 81 “10. On consideration of above and respectfully following the decision of the jurisdictional High Court in the case of CIT vs. STL Extrusion, 53 DTR 97 and jurisdictional High Court in the case of CIT vs. Peoples General Hospital (Appeal No.27/2008) (supra) and the decision of Hon'ble Supreme Court in the case of Lovely Export (supra), 11 TTJ 357 and other decisions as reproduced above, we are of the view that ld. CIT(A) is justified in deleting the addition of Rs. 3,15,00,000/- and ld. CIT(A) is not justified in confirming the addition of Rs.1,75,00,000/-, therefore, we delete the same. Accordingly, ground taken by Department is dismissed whereas ground taken by the assessee is allowed.” The AO has held that the share application money received by the assessee was not genuine by stating that those companies were paper companies. Without prejudice to the basic fact that this contention of the AO is incorrect, even if these companies are actual paper companies and the source of money cannot be explained by them, then addition u/s 68 can be made in the hands of these companies and not in the hands of the assessee. The same is a well settled legal principle now in view of the various decisions mentioned above. Apart from the above, the AO has only cited extremely vague reasons such as the assessee did not explain why would a company based in Mumbai or Kolkata invest in the assessee and how these companies contacted the assessee. While stating so, the AO has erroneously ignored the submission of the assessee vide it’s letter dated 25.02.2014 in which he had stated that the directors of these companies were friends/ relatives. Besides, such questions are highly subjective and no addition can be made on this basis. The AO has thus erred in law as well as in facts in making an ad-hoc addition merely on the basis of surmises and conjectures and the same deserves to be deleted. 3.2 The Assessing Officer has observed the following observation with related to the Share Applicant Companies i) The entire investment by these companies has been made in unquoted and private companies ii) Line of business has been stated in most of the companies as trading in shares but net income is shown either nil or very low, which clearly suggests that these companies are accommodation entry providers only. iii) The common feature which emerges from the perusal of balance sheets and profit and loss accounts of all these companies is that these companies has entire investments in unquoted shares from which no income is being earned. iv) The turnovers of these companies are not commensurate with the net worth of the company. Further, there is either loss or negligible profit. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 82 v) It is also notable here that the reserves & surpluses are more than 15-18 times of share capital, which in turn suggests that these companies have raised the share capital on substantial premium from dummy share holders/ accommodation entries. Their share premium is also not justified considering the fact that all these companies have no profitability. Therefore, it can be inferred that these companies are only paper companies. 3.2.1 The Assessing Officer had held that the assessee has not been able to justify the intention of making investment by these companies in the assessee company. There is nothing on record to suggest how these parties were contacted by the assessee company, who are the Directors of these companies and how they are known to the assessee company. The assessee company was not a dividend paying company and hence no common man of prudence will invest in such a company. The assessee company had itself shown meager income in these years. Therefore, it is nothing but an arranged affair and the assessee has routed its unaccounted money in the guise of share application money. 4. I have gone through the assessment order and the appellant's contentions. During the course of the assessment proceedings, the AO had asked the appellant to establish the identity and creditworthiness of the share applicants and the genuineness of the transactions. In response, the complete details of all the share applicants such as copy of Share Application Forms, copy of Bank Statement of the appellant company reflecting the above share application money received by it, copy of PAN Card of the share holder companies, MOA/AOA of the said companies, copy of Income Tax Returns, copy of Audited Balance Sheet of the said companies etc. were filed. 4.1 The Assessing Officer in this case has doubted the reason of investment of the share applicants in the appellant company without making any effort to bring any evidence on record that the share application money represented the appellant's own money from undisclosed sources. No attempt was made by the Assessing Officer to summon the Directors of the share applicant companies. The addresses were available in the details submitted by the appellant during the course of assessment proceedings and if the Assessing Officer had any doubt over the genuineness of the transaction he could have summoned the Directors of the share applicant companies. No such attempt was however made by the Assessing Officer. The Assessing Officer has drawn adverse inference from the perusal of the Balance Sheet and Profit & Loss account of these Ambika/Keshav Refinery (SS)65/Ind/2016 and others 83 companies without bringing any corroborative evidence to support his view. 4.2 The Hon'ble Apex Court in the case of CIT vs. Lovely Exports (P) Ltd., (2008) 216 CTR 195 (SC) held that once the identity of the share applicant is established, no addition under section 68 can be made in the hands of the recipient company. The ruling of the Hon'ble Apex Court has been followed by various High Courts as under: i) CIT vs. Peoples General Hospital Ltd. (2013) 356 ITR 65 (MP) ii) CIT vs. Gangeshwari Metal Pvt. Ltd.(2013)30 Taxmann.com 328 (Del) iii) C1T vs. Samir Bio-Tech (P) Ltd. (2010) 325 ITR 294 (Del) iv) CIT vs. K.C. Fibres Ltd. (2010) 187 Taxman 53 (Del) v) Bhav Shakti Steel Mines (P) Ltd. vs. CIT (2010) 320 ITR 619 (Del) vi) CIT vs. Gangour Investment Ltd. (2011) 335 ITR 359 (Del) vii) CIT vs. Shri Ram Syal Hydro Power (P) Ltd. (2011) 196 Taxman 441 (Del) viii) C1T vs. GP International Ltd. (2010) 325 ITR 25 (P&H) ix) CIT vs. Arunananda Textiles (P) Ltd. (2011) 333 ITR 116 (Karl x) CIT vs. Ask Brothers Ltd. (2011) 333 ITR 111 (Ker) xi) ACIT vs. Venkateshwar Ispat (P) Ltd. (2009) 319 ITR 393 (Chhat) xii) Hindustan Inks & Resins Ltd. vs. DCIT (2011) 60 DTR 18 (Guj) xiii) CIT vs. Jay Dee Securities and Finance Ltd. (2013) 350 ITR 220 (All) xiv) CIT vs. Misra Preservers (P) Ltd. (2013) 350 ITR 222 (All) 4.3 The identities of the share holders is not in doubt. The share _ application money having been paid by account payee cheques, the AO creditworthiness has also been established. The complete details of the shareholders with regard to their Income Tax returns and audited accounts available. In the circumstances, adverse inference against the appellant cannot be drawn only because the appellant was not able to justify the intention of making investment by the share holder companies in the appellant's company. In view of the factual matrix of the case and the existing legal position, once the identity of the share holders is proved, no addition u/s 68 is warranted. The addition of Rs. 2,20,00,000/- made to the total income of the appellant in respect of the share application money received by the appellant is deleted. Ground No. 4 is allowed.” Ambika/Keshav Refinery (SS)65/Ind/2016 and others 84 29. Likewise, the Ld. CIT(A) dealt the issue related to share capital received by the assessee para 4 to 4.3 on pages 7 and 8 of the impugned order passed for the A.Y. 2010-11 and deleted the additions made by the Ld. u/s 68 of the act of Rs. 2,34,00,000/- by observing as under:- “4. I have gone through the assessment order and the appellant's contentions. During the course of the assessment proceedings, the AO had asked the appellant to establish the identity and creditworthiness of the share applicants and the genuineness of the transactions. In response, the complete details of all the share applicants such as copy of Share Application Forms, copy of Bank Statement of the appellant company reflecting the above share application money received by it, copy of PAN Card of the share holder companies, MOA/AOA of the said companies, copy of Income Tax Returns, copy of Audited Balance Sheet of the said companies etc. were filed. 4.1 The Assessing Officer in this case has doubted the reason of investment of the share applicants in the appellant company without making any effort to bring any evidence on record that the share application money represented the appellant's own money from undisclosed sources. No attempt was made by the Assessing Officer to summon the Directors of the share applicant companies. The addresses were available in the details submitted by the appellant during the course of assessment proceedings and if the Assessing Officer had any doubt over the genuineness of the transaction he could have summoned the Directors of the share applicant companies. No such attempt was however made by the Assessing Officer. The Assessing Officer has drawn adverse inference from the perusal of the Balance Sheet and Profit & Loss account of these companies without bringing any corroborative evidence to support his view. 4.2 The Hon'ble Apex Court in the case of CIT vs. Lovely Exports (P) Ltd., (2008) 216 CTR 195 (SC) held that once the identity of the share applicant is established, no addition under section 68 can be made in the hands of the Ambika/Keshav Refinery (SS)65/Ind/2016 and others 85 recipient company. The ruling of the Hon'ble Apex Court has been followed by various High Courts as under: i) CIT vs. Peoples General Hospital Ltd. (2013) 356 ITR 65 (MP) ii) CIT vs. Gangeshwari Metal Pvt. Ltd.(2013)30 Taxmann.com 328 (Del) iii) C1T vs. Samir Bio-Tech (P) Ltd. (2010) 325 ITR 294 (Del) iv) CIT vs. K.C. Fibres Ltd. (2010)187 Taxman 53 (Del) v) Bhav Shakti Steel Mines (P) Ltd. vs. CIT (2010) 320 ITR 619 (Del) vi) CIT vs. Gangour Investment Ltd. (2011) 335 ITR 359 (Del) vii) CIT vs. Shri Ram Syal Hydro Power (P) Ltd. (2011)196 Taxman 441 (Del) viii) C1T vs. GP International Ltd. (2010) 325 ITR 25 (P&H) ix) CIT vs. Arunananda Textiles (P) Ltd. (2011) 333 ITR 116 (Karl x) CIT vs. Ask Brothers Ltd. (2011) 333 ITR 111 (Ker) xi) ACIT vs. Venkateshwar Ispat (P) Ltd. (2009) 319 ITR 393 (Chhat) xii) Hindustan Inks & Resins Ltd. vs. DCIT (2011) 60 DTR 18 (Guj) xiii) CIT vs. Jay Dee Securities and Finance Ltd. (2013) 350 ITR 220 (All) xiv) CIT vs. Misra Preservers (P) Ltd. (2013) 350 ITR 222 (All) 4.3 The identities of the share holders is not in doubt. The share _ application money having been paid by account payee cheques, the AO creditworthiness has also been established. The complete details of the shareholders with regard to their Income Tax returns and audited accounts available. In the circumstances, adverse inference against the appellant cannot be drawn only because the appellant was not able to justify the intention of making investment by the share holder companies in the appellant's company. In view of the factual matrix of the case and the existing legal position, once the identity of the share holders is proved, no addition u/s 68 is warranted. The addition of Rs. 2,34,00,000/- made to the total income of the appellant in respect of the share application money received by the appellant is deleted. Ground No. 4 is allowed. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 86 30. Being aggrived, the Revenue is in appeal before this tribunal. Ld. Departmental Representative vehemently argued supporting the order of the Assessing Officer. 31. Per Contra, Ld. Counsel for the Assessee heavily relied on the finding of Ld. CIT(A). Reference was also made to the paper book and written submissions/judicial pronouncements contending that Ld. CIT(A) having appreciated the facts and material on record in the light of the relevant judicial pronouncements rightly deleted the addition. Ld. Counsel of the Assessee relied upon the following judicial Pronouncement. S. No. Name of Decision Citation 01. CIT Vs. Oasis Hospitalities (P) Ltd. 333 ITR 119 (Del) 02. CIT vs Nova Promoters &Finlease (P) Ltd 342 ITR 169 03. Lovely Exports P Limited 216 CTR 195 (SC) 04. STL Extrusion (P) Limited ITAT Indore Bench ITA no.(SS) 259,260/Ind/2008 Dt. 10.05.10 Confirmed by MP High Court reported in 53 DTR 97(2011) 05. Kamdhenu Steel & Alloys Ltd &Ors 206 Taxmann 254 (Del) Ambika/Keshav Refinery (SS)65/Ind/2016 and others 87 Hon’ble SC vide order dt. 17.09.12 has dismissed SLP filed by Revenue 06. Gangeshwari Metal P. Ltd. Appeal No ITA No 597/2012 (Del) 07. People General Hospital Limited Appeal No ITA No 89/ 2011 (MP High Court) 32. We have heard rival contentions and perused the records placed before us and carefully gone through the decisions referred by the Ld. CIT(A) in the impugned order. We find that the assessee company had filed ample documentary evidences so as to justify the identity and creditworthiness of the Share Applicants and genuineness of the transactions as entered into by them. A list of Documents which were filed by the assessee company before the Assessing Officer in respect of these Share Applicants is reproduced hereunder for ready reference- S .No. Company wise Details of Papers filed by the Assesse company during the Course of Assessment Proceedings to justify the Genuineness of Share Application/ Share Capital Received by it Page Nos. of Compilation 01 Koel Vyapar. Pvt. Ltd A Copies of Share Application Forms 135 -136 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 137 C Copy of PAN Card Details along with A.O. details 138 D Memorandum/Articles of Association of said company 139 -153 E Incorporation Certificate of said company 154 F Affidavit of Director 155 G Copy of Income Tax Return filed by it for the A.Y. 2008-09 156 H Copy of Audited Balance Sheet for the year ending 31.03.2009 157-162 I Copy of Audited Balance Sheet for the year ending 31.03.2013 163-175 02 Kinescope (India) Pvt. Ltd Ambika/Keshav Refinery (SS)65/Ind/2016 and others 88 A Copies of Share Application Forms 176-180 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 181 C Copy of Confirmation Letter 182 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 183-184 E Copy of PAN Card Details along with A.O. details 185 F Memorandum/Articles of Association of said company 186-235 G Incorporation Certificate of said company 236 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 237 I Copy of Audited Balance Sheet for the year ending 31.03.2009 238-249 J Copy of Audited Balance Sheet for the year ending 31.03.2013 250-261 03 Garrison Pharma (India) Ltd A Copies of Share Application Forms 262 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 263 C Copy of Confirmation Letter 264 D Copy of Bank Statement of said company reflecting the above Share application money given to the assessee company 265 E Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 266-267 F Copy of PAN Card Details along with A.O. details 268 G Memorandum/Articles of Association of said company 269-313 H Incorporation Certificate of said company 314-315 I Copy of Income Tax Return filed by it for the A.Y. 2008-09 316 J Copy of Audited Balance Sheet for the year ending 31.03.2009 317-338 04 Sepia Venture Pvt. Ltd A Copies of Share Application Forms 339 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 340 C Copy of Confirmation Letter 341 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 342-343 E Copy of PAN Card Details along with A.O. details 344 F Memorandum/Articles of Association of said company 345-351 G Incorporation Certificate of said company 352 H Copy of Income Tax Return filed by it for the A.Y. 08-09 353 J Copy of Audited Balance Sheet for the year ending 31.03.2009 354-365 H Copy of Audited Balance Sheet for the year ending 31.03.2013 366-381 05 Namrata Capital Pvt. Ltd A Copies of Share Application Forms 382 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 383 C Copy of Confirmation Letter 384 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 385-386 E Copy of PAN Card Details along with A.O. details 387 F Memorandum/Articles of Association of said company 388-402 G Incorporation Certificate of said company 403 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 404 J Copy of Audited Balance Sheet for the year ending 31.03.2009 405-428 I Copy of Audited Balance Sheet for the year ending 31.03.2013 429-449 06 GP Organisers Pvt. Ltd A Copies of Share Application Forms 450 B Copy of Minutes of Board Authorizing the Company’s Directors to 451 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 89 Subscribe to the Shares of the Company C Copy of Confirmation Letter 452 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 453-454 E Copy of PAN Card Details along with A.O. details 455 F Memorandum/Articles of Association of said company 456-470 G Incorporation Certificate of said company 471 H Copy of Income Tax Return filed by it for the A.Y. 08-09 472-473 J Copy of Audited Balance Sheet for the year ending 31.03.2013 474-495 07 ChandramukhiVanijyaPvt. Ltd A Copies of Share Application Forms 496 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 497 C Copy of Confirmation Letter 498 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 499-500 E Copy of PAN Card Details along with A.O. details 501 F Memorandum/Articles of Association of said company 502-511 G Incorporation Certificate of said company 512 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 513 J Copy of Audited Balance Sheet for the year ending 31.03.2008 514-521 I Copy of Audited Balance Sheet for the year ending 31.03.2012 522-534 08 Aron Commodities Pvt. Ltd A Copies of Share Application Forms 535-537 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 538 C Copy of Confirmation Letter 539 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 540-541 E Copy of PAN Card Details along with A.O. details 542 F Memorandum/Articles of Association of said company 543-554 G Incorporation Certificate of said company 555 H Copy of Audited Balance Sheet for the year ending 31.03.2008 556-560 I Copy of Audited Balance Sheet for the year ending 31.03.2012 561-563 J Copy of Audited Balance Sheet for the year ending 31.03.2013 564-570 09 Jeevika Mercantile Pvt. Ltd A Copies of Share Application Forms 571-572 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 573 C Copy of Confirmation Letter 574 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 575-576 F Copy of PAN Card Details along with A.O. details 577 G Memorandum/Articles of Association of said company 578-601 H Incorporation Certificate of said company 602 I Copy of Audited Balance Sheet for the year ending 31.03.2009 603-606 J Copy of Audited Balance Sheet for the year ending 31.03.2013 607-613 10 AafreenMultitradePvt. Ltd A Copies of Share Application Forms 614 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 615 C Copy of Confirmation Letter 616 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 617-618 E Copy of PAN Card Details along with A.O. details 619 F Memorandum/Articles of Association of said company 620-632 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 90 G Incorporation Certificate of said company 633 H Copy of Audited Balance Sheet for the year ending 31.03.2010 634 -637 I Copy of Audited Balance Sheet for the year ending 31.03.2012 638-640 11. Adrika Commodities Pvt. Ltd A Copies of Share Application Forms 641 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 642 C Copy of Confirmation Letter 643 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 644 E Copy of PAN Card Details along with A.O. details 645 F Memorandum/Articles of Association of said company 646-658 G Incorporation Certificate of said company 659 12. Gracious Distributors Pvt. Ltd A Copies of Share Application Forms 660-663 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 664 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 665-666 D Copy of PAN Card Details along with A.O. details 667 E Memorandum/Articles of Association of said company 668-679 F Incorporation Certificate of said company 680 G Copy of Affidavit of Director 681 H Copy of Income Tax Return filed by it for the A.Y. 08-09 682 I Copy of Audited Balance Sheet for the year ending 31.03.2009 683-689 J Copy of Audited Balance Sheet for the year ending 31.03.2013 690-702 13. Muskan Dealers Pvt. Ltd A Copies of Share Application Forms 703-704 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 705 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 706 D Copy of PAN Card Details along with A.O. details 707 E Memorandum/Articles of Association of said company 708-719 F Incorporation Certificate of said company 731 G Copy of Income Tax Return filed by it for the A.Y. 2008-09 733 H Copy of Audited Balance Sheet for the year ending 31.03.2010 720-730 I Copy of Affidavit of Director 732 J Copy of Audited Balance Sheet for the year ending 31.03.2012 734-746 14. Sumeru Vincom Pvt. Ltd A Copies of Share Application Forms 747-748 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 749 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 750 D Copy of PAN Card Details along with A.O. details 751 E Memorandum/Articles of Association of said company 752-758 F Incorporation Certificate of said company 759 G Copy of Affidavit of Director 760 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 91 H Copy of Audited Balance Sheet for the year ending 31.03.2009 761-766 I Copy of Audited Balance Sheet for the year ending 31.03.2012 767-777 15. Epoch Commercial Pvt. Ltd A Copies of Share Application Forms 778-781 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 782 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 783-784 D Copy of PAN Card Details along with A.O. details 785 E Memorandum/Articles of Association of said company 786-797 F Incorporation Certificate of said company 798 G Copy of Affidavit of Director 799 H Copy of Audited Balance Sheet for the year ending 31.03.2010 800-809 I Copy of Audited Balance Sheet for the year ending 31.03.2013 810-818 16. Durga Nirman Pvt. Ltd. A Copies of Share Application Forms 819-820 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 821 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 822 D Copy of PAN Card Details along with A.O. details 823 E Memorandum/Articles of Association of said company 824-831 F Incorporation Certificate of said company 832 G Copy of Affidavit of Director 833 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 834 I Copy of Audited Balance Sheet for the year ending 31.03.2010 835-844 J Copy of Audited Balance Sheet for the year ending 31.03.2011 845-854 17. Outlook Tracom Pvt. Ltd A Copies of Share Application Forms 855-856 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 857 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 858 D Copy of PAN Card Details along with A.O. details 859 E Memorandum/Articles of Association of said company 860-867 F Incorporation Certificate of said company 868 G Copy of Affidavit of Director 869 H Copy of Income Tax Return filed by it for the A.Y. 08-09 870 I Copy of Audited Balance Sheet for the year ending 31.03.2010 871-880 J Copy of Audited Balance Sheet for the year ending 31.03.2011 881-893 18. Vikash Vinimay Pvt. Ltd A Copies of Share Application Forms 894-895 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 896 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 897 D Copy of PAN Card Details along with A.O. details 898 E Memorandum/Articles of Association of said company 899-910 F Incorporation Certificate of said company 911 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 92 G Copy of Affidavit of Director 912 H Copy of Income Tax Return filed by it for the A.Y. 08-09 913 I Copy of Audited Balance Sheet for the year ending 31.03.2010 914-924 J Copy of Audited Balance Sheet for the year ending 31.03.2013 925-935 19. Mataji Promotors Pvt. Ltd A Copies of Share Application Forms 936-937 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 938 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 939 D Copy of PAN Card Details along with A.O. details 940 E Memorandum/Articles of Association of said company 941-948 F Incorporation Certificate of said company 949 G Copy of Affidavit of Director 950 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 951 I Copy of Audited Balance Sheet for the year ending 31.03.2010 952-961 J Copy of Audited Balance Sheet for the year ending 31.03.2011 962-967 20. Vikash Tradecom Pvt. Ltd A Copies of Share Application Forms 968-969 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 970 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 971 D Copy of PAN Card Details along with A.O. details 972 E Memorandum/Articles of Association of said company 973-984 F Incorporation Certificate of said company 985 G Copy of Affidavit of Director 986 H Copy of Income Tax Return filed by it for the A.Y. 2008-09 987 I Copy of Audited Balance Sheet for the year ending 31.03.2010 988-1011 21. Canoe Commercial Pvt. Ltd A Copies of Share Application Forms 1012-1013 B Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 1014 C Copy of PAN Card Details along with A.O. details 1015 D Memorandum/Articles of Association of said company 1016-1027 E Incorporation Certificate of said company 1028 F Copy of Affidavit of Director 1029 G Copy of Audited Balance Sheet for the year ending 31.03.2010 1030-1038 I Copy of Audited Balance Sheet for the year ending 31.03.2013 1039-1057 22. Mainak Vincom Pvt. Ltd A Copies of Share Application Forms 1058-1059 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 1060 C Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 1061 D Copy of PAN Card Details along with A.O. details 1062 E Memorandum/Articles of Association of said company 1063-1070 F Incorporation Certificate of said company 1071 G Copy of Affidavit of Director 1072 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 93 H Copy of Audited Balance Sheet for the year ending 31.03.2010 1073-1082 I Copy of Audited Balance Sheet for the year ending 31.03.2012 1083-1095 23, Jolly Multitrade Pvt. Ltd A Copies of Share Application Forms 1096 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 1097 C Copy of Confirmation Letter 1098 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 1099 E Copy of PAN Card Details along with A.O. details 1100 F Memorandum/Articles of Association of said company 1101-1107 G Incorporation Certificate of said company 1108 H Copy of Income Tax Return filed by it for the A.Y. 08-09 1109 I Copy of Audited Balance Sheet for the year ending 31.03.2009 1110-1121 J Copy of Audited Balance Sheet for the year ending 31.03.2012 1122-1136 24. Yahvi Infrastructure Pvt. Ltd A Copies of Share Application Forms 1137 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 1138 C Copy of Confirmation Letter 1139 D Copy of Bank statement of said company reflecting the above Share Application money given to the assessee company 1140 E Copy of Bank statement of Assessee company reflecting the above Share Application money received by it 1141 F Copy of PAN Card Details along with A.O. details 1142 G Memorandum/Articles of Association of said company 1143-1161 H Incorporation Certificate of said company 1162 I Copy of Audited Balance Sheet for the year ending 31.03.2010 1163-1167 J Copy of Audited Balance Sheet for the year ending 31.03.2013 1168-1174 25. Vibhuti Multitrade Pvt. Ltd A Copies of Share Application Forms 1175 B Copy of Minutes of Board Authorizing the Company’s Directors to Subscribe to the Shares of the Company 1176 C Copy of Confirmation Letter 1177 D Copy of Bank statement of Assessee company reflecting the above Share Application money received by it along with ledger 1178 E Memorandum/Articles of Association of said company 1179-1185 F Incorporation Certificate of said company 1186 G Copy of Income Tax Return filed by it for the A.Y. 08-09 1187 H Copy of Audited Balance Sheet for the year ending 31.03.2011 1188-1194 I Copy of Audited Balance Sheet for the year ending 31.03.2012 1195-1198 J Copy of Audited Balance Sheet for the year ending 31.03.2013 1199-1212 Ambika/Keshav Refinery (SS)65/Ind/2016 and others 94 33. We have gone through the assessment order and the documents placed on records. The provision of Section 68 of the Income Tax Act, 1961 which was in force in these two assessment years is reproduced hereunder for ready reference :– “Cash credits. 68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to Income Tax as the income of the assessee of that previous year:” 34. The relevant extract of the proviso to Section 68 of the Income Tax Act, 1961 which was inserted by the Finance Act, 2012 w.e.f. 01.04.2013 reads as under :– “Provided that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless – (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory:” Ambika/Keshav Refinery (SS)65/Ind/2016 and others 95 35. From the above, we find that an assessee was only required to establish the identity, genuineness and creditworthiness of share applicants prior to the Assessment Year 2013-14. It was only after the insertion of proviso to Section 68 of the Act w.e.f. Assessment Year 2013-14 that the assessee was required to furnish an explanation regarding nature and source of source of sum invested by the share applicant. Hon’ble Bombay High Court in its landmark judgment in the case of CIT- 1 v. Gagandeep Infrastructure (P.) Ltd. as reported in(2018) 6 ITJ Online 671 (Bombay) : (2017) 394 ITR 680 has categorically held that proviso to Section 68 introduced by Finance Act 2012 with effect from 01.04.2013, would not have retrospective effect. We find that the Hon’ble Supreme Court of India in the case of CIT v. Lovely Exports (P.) Ltd. as reported in (2016) 2 ITJ Online 492 (SC) : (2008) 11 ITJ 357 : (2012) 6 STD 677 : (2008) 216 CTR 195 : (2008) 6 DTR 308 had categorically held as under :– “2. Can the amount of share money be regarded as undisclosed income under Section 68 of I.T. Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment.” Ambika/Keshav Refinery (SS)65/Ind/2016 and others 96 36. The Hon’ble Madhya Pradesh High Court in the case of CIT, Bhopal v. Peoples General Hospital Ltd. as reported in (2016) 2 ITJ Online 77 (MP) : (2007) 7 ITJ 310 : (2000) 245 ITR 160 : (2000) 161 CTR 444 : (2001) 116 Taxman 572 has categorically held that :– “16. The aforesaid judgment has been followed by all the Courts and the judgments relied on by the appellants relates to the period prior to the judgment in Lovely Exports (P.) Ltd.'s case (supra). As the Apex Court has specifically held that if the identity of the person providing share application money is established then the burden was not on the assessee to prove the creditworthiness of the said person. However, the department can proceed against the said Company in accordance with law. The position of the present case is identical. It is not the case of any of the parties that M/s Alliance Industries Limited, Sharjah is a bogus company or a non-existent company and the amount which was subscribed by the said Company by way of share subscription was in fact the money of the respondent assessee. In the present case, the assessee had established the identity of investor who had provided the share subscription and it was established that the transaction was genuine though as per contention of the respondent the creditworthiness of the creditor was also established. In the present case, in the light of the judgment of Lovely Exports (P.) Ltd.'s, (supra) we have to see only in respect of the establishment of the identity of the investor. The Delhi High Court also in Divine Leasing & Finance Ltd.'s case (supra), considering the similar question held that the assessee Company having received subscriptions to the public/rights issue through banking channels and furnished complete details of the shareholders, no addition could be made under Section 68 in the absence of any positive material or evidence to indicate that the shareholders were benamidars Ambika/Keshav Refinery (SS)65/Ind/2016 and others 97 or fictitious persons or that any part of the share capital represented company's own income from undisclosed sources. The similar view has been taken by the other High Courts. 17. As the Apex Court has considered the law in Lovely Exports (P.) Ltd.'s case (supra) and in view of law laid down by the Apex Court, we find that the substantial questions framed in these appeals do not arise for our consideration. Accordingly, all these appeals are dismissed with no order as to costs.” 37. The Hon’ble Bombay High Court in the case of Pr. CIT-1 v. Ami Industries (India)(P.) Ltd. as reported in (2020) 8 ITJ Online 279 (Bombay) : (2020) 116 taxmann.com 34 vide order dated 29.01.2020 has categorically distinguished the decision of the Hon’ble Supreme Court of India in the case of NRA Iron & Steel (P.) Ltd. and has held that :– “21. From the above, it is seen that identity of the creditors were not in doubt. Assessee had furnished PAN, copies of the income tax returns of the creditors as well as copy of bank accounts of the three creditors in which the share application money was deposited in order to prove genuineness of the transactions. In so far credit worthiness of the creditors were concerned, Tribunal recorded that bank accounts of the creditors showed that the creditors had funds to make payments for share application money and in this regard, resolutions were also passed by the Board of Directors of the three creditors. Though, assessee was not required to prove source of the source, nonetheless, Tribunal took the view that Assessing Officer had made inquiries through the investigation wing of the department at Kolkata and collected all the materials which proved source of the source. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 98 22. In NRA Iron & Steel (P.) Ltd., (supra), the Assessing Officer had made independent and detailed inquiry including survey of the investor companies. The field report revealed that the shareholders were either non-existent or lacked credit-worthiness. It is in these circumstances, Supreme Court held that the onus to establish identity of the investor companies was not discharged by the assessee. The aforesaid decision is, therefore, clearly distinguishable on facts of the present case. 23. Therefore, on a thorough consideration of the matter, we are of the view that the first appellate authority had returned a clear finding of fact that assessee had discharged its onus of proving identity of the creditors, genuineness of the transactions and credit-worthiness of the creditors which finding of fact stood affirmed by the Tribunal. There is, thus, concurrent findings of fact by the two lower appellate authorities. Appellant has not been able to show any perversity in the aforesaid findings of fact by the authorities below. 24. Under these circumstances, we find no error or infirmity in the view taken by the Tribunal. No. question of law, much less any substantial question of law, arises from the order of the Tribunal. Consequently, the appeal is dismissed. However, there shall be no order as to cost.” 38. The ITAT Indore bench in the case of STL Extrusion (P) Limited vide order dated 10.05.2010 being ITA no.(SS) 259,260/Ind/2008 after considering the judgement of Hon’ble MP High Court in the case of RathiFinlease Ltd. reported in 215 CTR 429 (MP) held as under:- Page 7 “ In the present appeal, since the assessee has discharged its onus by proving the identity of subscribers and even otherwise had any suspicion still remained in his mind, nothing prevented him to initiate action as per the provisions of the Act.The existence of subscriber to share Ambika/Keshav Refinery (SS)65/Ind/2016 and others 99 application is not in doubt as the assessee duly furnished their names, age, address, date of filing the application, number of shares for which respective applications were made, amount given and the source of income of the applicant. In view of these facts, we are of the considered opinion that there is no justification for making the impugned addition because once the existence of the investor/share subscribers is proved, onus shifts on the revenue to establish that either the share applicants are bogus or the impugned money belongs to the assessee company itself. Once the confirmation letters are filed, no addition can be made on account of share application in the hands of the company. Our view finds support from the decision in ShricBarkha Synthetics Ltd. v/s ACIT 155 Taxman 289 (Raj). The cases like CIT V/s GP International Ltd.229 CTR (P&H) 86, CIT V Steller Investment Limited 192 ITR 287 and Sophia Finance Limited 205 ITR 98 (del) supports the case of the assessee. The above order of ITAT Indore bench has also been confirmed by the Hon’ble M.P. High Court in the case of CIT V/s STL Extrusion (P) Ltd reported in 53 DTR 97(2011) after referring its earlier order in the case of CIT V/s Rathi Finlease Ltd. reported in 215 CTR 429 wherein Hon’ble Jurisdictional high court also relied on the decision of the Hon’ble Apex Court in the case of Lovely Exports P Limited. 39. Hon’ble Jurisdictional High Court in the case of People General Hospital Limited [ Appeal No ITA No 89/ 2011 ] has held Ambika/Keshav Refinery (SS)65/Ind/2016 and others 100 that the assessee company need to prove identity of the share holders only , para 16 of the said decision is produced as under:- 16. The aforesaid judgment has been followed by all the Courts and the judgments relied on by the appellants relates to the period prior to the judgment in Lovely Exports. As the Apex Court has specifically held that if the identity of the person providing share application money is established then the burden was not on the assessee to prove the creditworthiness of the said person. However, the department can proceed against the said Company in accordance with law. The position of the present case is identical. It is not the case of any of the parties that M/s Alliance Industries Limited, Sharjah is a bogus company or a non-existent company and the amount which was subscribed by the said Company by way of share subscription was in fact the money of the respondent assessee. In the present case, the assessee had established the identity of investor who had provided the share subscription and it was established that the transaction was genuine though as per contention of the respondent the creditworthiness of the creditor was also established. In the present case, in the light of the judgment of Lovely Exports (P) Ltd., we have to see only in respect of the establishment of the identity of the investor. The Delhi High Court also in Divine Leasing & Finance Ltd. (supra), considering the similar question held that the assessee Company having received subscriptions to the public/rights issue through banking channels and furnished complete details of the shareholders, no addition could be made under section 68 in the absence of any positive material or evidence to indicate that the shareholders were benamidars or fictitious persons or that any part of the share capital represented company's own income from undisclosed sources. The similar view has been taken by the other High Courts. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 101 40. Hon’ble Jurisdictional High Court in its latest decision in the case of Pr. CIT v/s M/s Mahakaushal Sugar and Power Industries Ltd. has held as under:- 16. The aforesaid judgment has been followed by all the Courts and the judgments relied on by the appellants relates to the period prior to the judgment in Lovely Exports. As the Apex Court has specifically held that if the identity of the person providing share application money is established then the burden was not on the assessee to prove the creditworthiness of the said person. However, the department can proceed against the said Company in accordance with law. The position of the present case is identical. It is not the case of any of the parties that M/s Alliance Industries Limited, Sharjah is a bogus company or a non-existent company and the amount which was subscribed by the said Company by way of share subscription was in fact the money of the respondent assessee. In the present case, the assessee had established the identity of investor who had provided the share subscription and it was established that the transaction was genuine though as per contention of the respondent the creditworthiness of the creditor was also established. In the present case, in the light of the judgment of Lovely Exports (P) Ltd., we have to see only in respect of the establishment of the identity of the investor. The Delhi High Court also in Divine Leasing & Finance Ltd. (supra), considering the similar question held that the assessee Company having received subscriptions to the public/rights issue through banking channels and furnished complete details of the shareholders, no addition could be made under section 68 in the absence of any positive material or evidence to indicate that the shareholders were benamidars or fictitious persons or that any part of the share capital represented company's own income from undisclosed sources. The similar view has been taken by the other High Courts. 41. Further, the ratio laid down in the following decisions also supports our view:– Ambika/Keshav Refinery (SS)65/Ind/2016 and others 102 CIT Vs. Oasis Hospitalities (P) Ltd.reported in 333 ITR 119 (2011) CIT vs NOVA PROMOTERS & FINLEASE (P) LTD reported in 342 ITR 169 CIT vs Kamdhenu Steel & Alloys Ltd &Ors reported in 248 CTR 33/ 206 Taxman 254/ 68 DTR 38 ( Delhi ) 42. In view of the above discussion and ratio laid down in the aforesaid judicial pronouncement, it is apparent that the assessee company in the facts of the present case duly established the identity and creditworthiness of the share applicants and genuineness of the transactions as entered into with them. The Assessing Officer failed to appreciate the findings laid down in the judicial precedents (supra) and the fact that the assessee company established the identity of the share applicants and genuineness of the transactions entered into with them beyond any doubt. The assessee company cannot be put in a disadvantageous position merely because the share applicants could not be produced. If the Assessing Officer had any doubt regarding the source of investment made by them these share applicants, the Assessing Officer was free to proceed against Ambika/Keshav Refinery (SS)65/Ind/2016 and others 103 these share applicants but by no stretch of imagination can the share application money received from these applicants, be taxed as income of the assessee company unless the Assessing Officer establishes the fact that such money has been emanated from the coffers of the respondent assessee company. There was a clear lack of inquiry on the part of the Assessing Officer as the assessee had furnished all the material which we have already referred to above. In such situation, no addition can be made under section 68 of the Act. Accordingly, we do not find any infirmity in the orders of the ld. CIT(A) on this issue. Consequently, ground no.1 raised in both the departmetnal appeals is dimissed. 43. So far as the ground No. 3 of the appeal filed by the Revenue related to the Assessment Year 2010-11 in respect of eligiblity of the assessee for carry forward of unabsorbed depreciation A.Y. 2009-10 then the benefit for the same should be allowed in this year is concerned, we find that the Ld. CIT(A) in para 6 on page 12 of the impugned order for the A.Y. 2010-11 has dealt with the said issue and has held as under:- “ This Ground is regarding the disallowance of the claim of brought forward depreciation and business loss of Rs. Ambika/Keshav Refinery (SS)65/Ind/2016 and others 104 13,51,543/-. This ground is consequential in nature. If the Appellant eligible for carry forward of Unabsorbed Depreciation after the computation of income for A.Y. 2009- 10 , then the benefit for the same should be allowed in this year. For statistical purposes this ground of appeal is allowed.” 44. Learned Counsel for the assessee relied upon the order of the ld. CIT(A) whereas the ld. CIT-DR defended the order of the Assessing Officer. 45. We have considered the rival submissions of both the parties and gone through the material available on the file. We are of the view that the said ground raised by the Revenue is consequential in nature and therefore, the Ld. CIT(A) has correctly dealt with the same by holding that if the assessee is eligible for carry forward of unabsorbed depreciation after the computation of income for A.Y. 2009-10, then the benefit for the same should be allowed in this year. Thus, we do not find any reason to interfere with the findings of the ld. CIT(A) on this issue. Therefore, this ground of appeal is also dismissed. 46. In the result, in case of Ambika Refinery, the departmental appeals bearing IT(SS)A Nos.65 to 67/Ind/2016 are dismissed and assessee’s Cross-objections bearing C.O. Nos.20 to 22/Ind/2017 are allowed whereas in case of Keshav Industries, Ambika/Keshav Refinery (SS)65/Ind/2016 and others 105 the departmental appeals bearing IT(SS)A Nos.62 & 63/Ind/2016 are dismissed Order was pronounced as per Rule 34 of I.T.A.T., Rules 1963 on 05.01.2022. Sd/- (RAJPAL YADAV) Sd/- (MANISH BORAD) VICE-PRESIDENT ACCOUNTANT MEMBER Indore; दनांक Dated : 05/01/2022 !vyas! Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order Assistant Registrar, Indore