Shri Muzibur Raheman Khan, Angul V. ACIT, Central Circle-1, Bhubaneswar

ITSSA 78/CTK/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9173 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 20-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K GAUTAM
• Assessee Lawyers: P K MISHRA
• Keywords: Search and seizure; Document seized; Revised return; Documents seized
• Section: 40A(3); 153A; 80IB; 201; 143(2); 139(1); 13; 153; 153C; 132; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM ( ) . / IT (SS) A NO. 78 /CTK/20 18 ( / ASSESSMENT YEAR : 20 1 1 - 201 2 ) MUZIBU R RAHEMAN KHAN, NEAR RAILWAY STATION, TALCHER, DIST - ANGUL, PIN - 759116, ODISHA VS. ACIT, CENTRAL CIRCLE - 1, BHUBANESWAR PAN NO. : A KNPK 8354 N ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI P.K.MISHRA, ADVOC ATE /REVENUE BY : SHRI M.K.GAUTAM, CIT - DR / DATE OF HEARING : 16 / 0 7 /20 20 / DATE OF PRONOUNCEMENT : 10 / 0 8 /20 20 / O R D E R PER L.P.SAHU , A M : TH E ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER OF CIT(A) - 2 , BHUBANESWAR , DATED 08.05.2018 FOR THE A.Y.201 1 - 201 2 , ON THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT, THE IMPUGNED ORDER OF ASSESSMENT SO PASSED U/S.153C OF THE I.T.ACT,1961 IS WITHOUT JURISDICTION AND WITHOUT THE AUTHORITY OF LAW AS S UCH THE SAME BEING NOT SUSTAINABLE IN THE EYE OF LAW IS LIABLE TO BE QUASHED IN THE INTEREST OF JUSTICE. 2. FOR THAT, THE LEARNED C.I.T.(A) HAS COMMITTED GROSS ERROR IN CONFIRMING THE ADDITION OF RS. 10,11,780.00 MADE BY THE LEARNED A.O., UNDER THE HEA D COMMISSION INCOME, PARTICULARLY WHEN, THE IMPUGNED ADDITION WAS MADE ON THE BASIS OF WRONG FACTS AND THERE WAS NO SUCH CLAIM MADE BY THE ASSESSEE IN THE RETURN FILED U/S.153C OF THE ACT, HENCE NOT SUSTAINABLE IN THE EYE OF LAW, AS SUCH THE IMPUGNED ADDIT ION IS LIABLE TO BE DELETED IN THE INTEREST OF JUSTICE. 3. FOR THAT, THE LEARNED C.I.T.(A) HAS COMMITTED GROSS IN CONFIRMING THE ADDITION OT THE CLAIM OF SUNDRY CREDITORS TO THE TUNE OF RS.4,00,000.00 MADE BY THE LEARNED A.O., WITHOUT CONSIDERING TH E IT (SS) A NO. 78 /CTK/2018 2 EXPLANATION OF THE ASSESSEE, PARTICULARLY WHEN, THE IMPUGNED ADDITION IS BASED ON A WRONG PRESUMPTION OF FACT, AS SUCH, BEING NOT CORRECT IN THE EYE OF IS LIABLE TO BE DELETED IN THE INTEREST OF JUSTICE. 4. FOR THAT, THE LEARNED C.I.T.(A) HAS COM MITTED GROSS ERROR OF LAW IN CONFIRMING THE ADDITION OF SUNDRY CREDITORS OF RS.4,00,000.00 BY APPLYING SECTION 41(1) OF THE ACT, PARTICULARLY WHEN, THERE IS NO SUCH LIABILITY CLAIMED BY THE ASSESSEE, AS SUCH THE IMPUGNED ADDITION BEING NOT SUSTAINABLE IN T HE EYE OF LAW, IS LIABLE TO BE DELETED IN THE INTEREST OF JUSTICE. 2. THE ASSESSEE IS AN INDIVIDUAL DEALS IN WHOLESALE TRADING OF FISH, FILED ORIGINAL RETURN OF INCOME ON 10.03.2012 SHOWING TOTAL INCOME OF RS.7,52,329/ - . A SEARCH AND SEIZURE OPERATION U/S .132 OF THE ACT, 1961 WAS CONDUCTED IN THE CASE OF TAYAB KHAN GROUP OF CASES ON 08.10.2013. DURING THE COURSE OF SEARCH OPERATION INCRIMINATING DOCUMENTS VIZ. PURCHASE DEEDS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED IN THE RESIDENCE OF HAPIZUR RAHEMA N KHAN ONE OF THE SEARCHED PERSONS OF THE GROUP. SUBSEQUENTLY, NOTICED U/S.153C OF THE ACT WAS ISSUED ON 16.03.2015 REQUIRING ASSESSEE TO FILE RETURN OF INCOME FOR THE PREVIOUS YEAR WITHIN 30 DAYS OF THE RECEIPT OF THE NOTICED, AFTER RECORDING SATISFACTION NOTE THAT THE DOCUMENT IDENTIFICATION MARKED HRKR - 3 SEIZED FROM THE RESIDENCE OF HAPIZUR RAHEMAN KHAN, ONE OF THE SEARCHED PERSONS OF THE GROUP, HAVE REVENUE IMPLICATION. ACCORDINGLY, THE AO ISSUED NOTICE U/S.142(1) OF THE ACT WITH QUESTIONNAIRE. THEREAFT ER THE ASSESSEE FILED HIS RETURN OF INCOME U/S.153C OF THE ACTON 05.02.2016 DECLARING TOTAL INCOME OF RS.7,52,329/ - . ON VERIFICATION OF RETURN OF INCOME FILED ON 10.03.2012 U/S.139 OF THE ACT, IT (SS) A NO. 78 /CTK/2018 3 THE AO FOUND THAT THE ASSESSEE HAD SHOWN RS.10,11,780/ - AS INCO ME FROM COMMISSION, TO WHICH THE ASSESSEE FAILED TO EXPLAIN THE SAME, THEREFORE, THE AO ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. FURTHER THE AO FOUND THAT THE ASSESSEE HAD SHOWN RS.11,19,621/ - AS SUNDRY CREDITORS, WHICH WAS NOT EXPLAINED BY THE ASSESSEE AS TO WHY THE DIFFERENCE OF RS.4,00,000/ - IN THE SUNDRY CREDITORS IS REDUCED. THEREFORE, THE AO ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. FURTHER, WITH REGARD TO THE PAYMENT OF EXPENDITURE OTHER THAN ACCOUNT PAYEE CHEQUE/DRAFT , THE AO FO UND THAT THE ASSESSEE HAS MADE CERTAIN EXPENDITURES (AS HAVE BEEN INCORPORATED BY THE AO IN PAGE 3 OF THE ASSESSMENT ORDER) OTHER THAN ACCOUNT PAYEE CHEQUE/DRAFT WHICH ARE RELATED TO EXPENDITURE/EXPENSES FOR PURCHASES, VIOLATING THE PROVISIONS OF SECTION 4 0A(3) OF THE ACT, THEREFORE, THE AO ADDED RS.93,40,000/ - TO THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO FRAMED THE ASSESSMENT U/S.153C/144 OF THE ACT MAKING TOTAL ADDITION ON THE DIFFERENT HEADS AS MENTIONED ABOVE OF RS.10,11,780 + RS.4,00,000+RS .93,40,000 =RS. 1,07,51,780/ - . 3. THE ASSESSEE, AGGRIEVED WITH THE ADDITIONS MADE BY THE AO, CARRIED THE MATTER BEFORE THE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND REMAND REPORT SOUGHT FROM THE AO, DELETED THE ADDITION OF RS.93,40,000/ - MADE U/S.40A(3) OF THE ACT WITH REGARD TO PAYMENT OF EXPENDITURE OTHER THAN ACCOUNT PAYEE IT (SS) A NO. 78 /CTK/2018 4 CHEQUE/DRAFT. HOWEVER, CONFIRMED THE ADDITIONS MADE ON ACCOUNT OF INCOME FROM COMMISSION AND BOGUS SUNDRY CREDITORS AND ALLOWED THE APPEAL OF THE ASSES SEE PARTLY. 4. FURTHER BEING AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 5. LD. AR BEFORE US AGITATED THE ADDITIONS CONFIRMED BY THE CIT(A) AND ALSO ARGUED ON THE LEGAL GROUNDS. LD. AR HAS ALSO FILED WRITTEN SUB MISSIONS CONTENTS OF WHICH ARE AS UNDER : - 1. THAT, THE APPELLANT HAS BEEN ENGAGED IN WHOLESALE TRADING OF FISH, HE FILED ORIGINAL RETURN OF INCOME ON 10.03.2012, DECLARING TOTAL INCOME AT RS.7,52,329.00.TIME LIMIT FOR ISSUE OF NOTICE U/S. 143(2) OF THE ACT EXPIRED ON 30.09.2012. THEREFORE, IT IS A COMPLETED / UNABATED ASSESSMENT. A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CONDUCTED IN THE CASE OF TAYAB KHAN, HAPIZUR RAHEMAN KHAN AND GROUP OF CASES ON 08.10.2013. AS PER THE OBSERVATION OF THE LEARNED A.O., DURING COURSE OF SEARCH OPERATION, INCRIMINATING DOCUMENTS I.E. PURCHASE DEEDS BELONGING TO THE APPELLANT WERE FOUND AND SEIZED IN THE RESIDENCE OF HAPIZUR RAHEMAN KHAN, ONE OF THE SEARCHED PERSON OF THE GROUP. 2. THAT, CONSEQUENT TO SEA RCH OPERATION, NOTICE U/S.153C OF THE ACT WAS ISSUED. IN RESPONSE TO SUCH NOTICE, APPELLANT FILED RETURN OF INCOME DISCLOSING TOTAL INCOME OF RS.7,52,329.00. THE TOTAL INCOME DECLARED IN THE ORIGINAL RETURN IS ONE AND SAME. THEREAFTER, THE LEARNED A.O. COM PLETED ASSESSMENT U / S .153C BY MAKING FOLLOWING ADDITIONS, SUCH AS; 1. INCOME FROM COMMISSION RS.10,11,780.00 2. BOGUS SUNDRY CREDITOR RS. 4,00,000.00 3. D ISALLOWANCE OF EXPENDITURE U/S40A(3) OF THE ACT RS.93,40,000.00 3. THAT, BEING AGGRIEVED, THE APPELLANT PREFERRED APPEAL BEFORE THE LEARNED C.I.T.(A) CHALLENGING THE LEGALITY AND VALIDITY OF 153C ASSESSMENT AND CONSEQUENTIAL ADDITIONS MADE THEREIN ON MERIT ALSO. THOUGH, THE APPELLANT VEHEMENTLY CHALLENGED THE LEGALITY, VALIDITY AND SUSTAINABILITY OF THE 153C ASSESSMENT AND ALSO ARGUED THE ISSUES INVOLVED ON MERIT BUT WHILE DISPOSING OF THE APPEAL, THE LEARNED C.I.T.(A) TREATED THE LEGAL ISSUE AS GE NERAL IN NATURE, FOR WHICH HE OBSERVED THAT, IT DOES NOT NEED SEPARATE CONSIDERATION. HOWEVER, ALLOWED THE DISALLOWANCES MADE U/S.40A(3) OF THE ACT ON THE BASIS OF IT (SS) A NO. 78 /CTK/2018 5 REMAND REPORT OF THE LEARNED A.O. AGAINST THIS RELIEF GRANTED BY THE LEARNED C.I.T(A), DEPAR TMENT PREFERRED APPEAL WHICH WAS DISMISSED BY THIS HON'BLE TRIBUNAL ON MONETARY LIMITATION. 4. THAT, SINCE THE LEARNED C.I.T(A) DID NOT QUASH THE IMPUGNED ASSESSMENT SO COMPLETED U/S.153C OF THE ACT BY THE LEARNED A.O. AND CONFIRMED OTHER ADDITIONS, TH E APPELLANT BEING SERIOUSLY AGGRIEVED AND HIGHLY PREJUDICED, PREFERRED THIS PRESENT APPEAL WHICH IS NOW FIXED FOR HEARING. THE APPELLANT CHALLENGES THE LEGALITY, VALIDITY AND SUSTAINABILITY OF THE IMPUGNED ORDER OF ASSESSMENT SO COMPLETED U/S.153C OF THE A CT AS WELL AS THE ADDITIONS SO MADE ON MERIT ALSO. ARGUMENTS ON LEGAL ISSUE . IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE IMPUGNED ORDER OF ASSESSMENT SO PASSED U/S.153C OF THE ACT IS WITHOUT JURISDICTION AND HENCE IS NOT SUSTAINABLE IN THE EYE OF LAW. 1. THAT, IT MAY BE RESPECTFULLY SUBMITTED HERE THAT, THE LEARNED C.I.T(A) HAS COMMITTED GROSS ERROR OF LAW IN NOT QUASHING THE IMPUGNED ORDER OF ASSESSMENT SO COMPLETED U/S.153C OF THE ACT, PARTICULARLY WHEN, THERE IS NO SUCH INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH JUSTIFYING ANY UNDISCLOSED INCOME. WHEN THE ALLEGED INCRIMINATING MATERIAL, DOES NOT RELATE TO THIS YEAR AND ALSO DOES NOT INDICATE ANY REVENUE IMPLICATION OR ANY UNDISCLOSED INCOME, IT CANNOT BE TREATED AS INCRIMINATING MAT ERIALS WITHIN THE MEANING OF SECTION 153C OF THE ACT TO DISTURB A COMPLETED ASSESSMENT. AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEAR IN QUESTION AND IT IS AN UNDISPUTED FACT THAT, THE DOCUMENTS WHICH WERE SEIZED DID NOT ESTABLISH ANY CO - RELATION, DOCUMENT - WISE, WITH THIS ASSESSMENT YEAR. SINCE, THIS REQUIREMENT U/S. 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A JURISDICTIONAL FACT. THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT BEING WITHOUT JURISDICTION, UNWARRANTED AND UNSUSTAINABLE IN THE EYE OF LAW NEEDS TO BE QUASHED IN THE INTEREST OF JUSTICE. 2. THAT, THE APPELLANT WANTS TO DRAW KIND ATTENTION OF THIS HON'BLE TRIBUNAL TO THE TABLE DRAW N BY THE LEARNED C.I.T(A) IN PAGE NO.3 OF HIS ORDER. IN THE SAID TABLE, THE LEARNED C.I.T(A) HAS GIVEN DETAILS OF DOCUMENTS FOUND AND SEIZED DURING COURSE OF SEARCH OF HAPIZUR RAHEMAN KHAN (SEARCHED PERSON). ON PERUSAL OF SAID TABLE, AT POINT NO.2, 3 AND 4 , THIS HON'BLE TRIBUNAL WILL FIND THAT, NO SUCH INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED EXCEPT CASH. FROM THE TABLE, IT GOES ON SAYING WITHOUT ANY IOTA OF DOUBT THAT, THERE WERE NO INCRIMINATING MATERIALS FOUND WHICH BELONG TO THE APPELLANT. THEREFOR E, THE LEARNED A.O. HAS COMMITTED GROSS ERROR OF LAW IN COMPLETING ASSESSMENT U/S.153C OF THE ACT IN ABSENCE OF ANY INCRIMINATING MATERIAL AND THE LEARNED C.I.T.(A) HAS COMMITTED GROSS ERROR OF LAW IN CONFIRMING IT, AS SUCH, IT NEEDS TO BE QUASHED IN THE I NTEREST OF JUSTICE. IT (SS) A NO. 78 /CTK/2018 6 3. THAT, THE LEARNED A.O. IN PARAGRAPH NO.2 AT PAGE - 1 OF THE ORDER OF ASSESSMENT HAS OBSERVED THAT, 'DURING COURSE OF SEARCH OPERATION, INCRIMINATING DOCUMENTS VIZ. PURCHASE DEEDS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED IN THE R ESIDENCE OF HAPIZUR RAHEMAN KHAN ONE OF THE SEARCHED PERSON OF THE GROUP'. THIS PARTICULAR OBSERVATION HAS BEEN GIVEN BY THE LEARNED A.O. FOR ALL ASSESSMENT YEARS I.E. FROM ASSESSMENT YEAR 2008 - 09 TO 2014 - 15 AND NO ADDITION HAS BEEN MADE ON THE BASIS OF AL LEGED INCRIMINATING MATERIALS FOR ANY OF THESE YEARS. (REFERENCE MAY BE DRAWN TO THE PAGE NOS. 14,20,23,26,30 AND 33 OF THE ASSESSMENT ORDERS ENCLOSED TO THIS SUBMISSION). THIS FACT GOES ON SAYING WITHOUT ANY IOTA OF DOUBT THAT, THE LEARNED A.O. IS NOT SUR E AT ALL THAT, THE PURCHASE DEEDS BELONG TO WHICH ASSESSMENT YEARS. IN FACT, THE IMPUGNED FINDINGS OF THE LEARNED A.O. ARE COMPLETELY WRONG AND ILLEGAL. THE IMPUGNED OBSERVATION WAS GIVEN BY THE LEARNED A.O. FOR THE PURPOSE OF MAKING ASSESSMENT U/S.153C OF THE ACT, PARTICULARLY WHEN, THE ALLEGED PURCHASE DEEDS RELATED TO ASSESSMENT YEAR 2005 - 06 AND 2007 - 08 WHICH WERE ALREADY DISCLOSED IN THE BALANCE SHEET OF THE RESPECTIVE ASSESSMENT YEARS AND IN SUBSEQUENT ASSESSMENT YEARS ALSO . DETAILS OF ALLEGED TWO PURC HASE DEEDS ARE GIVEN HERE UNDER FOR BETTER APPRECIATION OF FACT; 1. LAND PURCHASED FROM NOOR MOHAMMAD VIDE SALE DEED DATED 23.07.2004 (REFERENCE PAGE 67 TO 88 OF PAPER BOOK). 2. LAND PURCHASED FROM SUSIL KUMAR PANDA VIDE SALE DEED DATED 16.01.2007 (REFERENCE PAGE 89 TO 108 OF PAPER BOOK). COPY OF ASSESSMENT ORDERS FROM ASSESSMENT YEAR: 2008 - 09 TO 2014 - 15 ARE ENCLOSED HEREWITH FOR REFERENCE AND RECORD. 4. THAT, SINCE THE PURCHASE DEEDS DO NOT RELATE TO THIS ASS ESSMENT YEAR AND THERE IS NO REVENUE IMPLICATION OF ANY UNDISCLOSED INCOME AND NO ADDITION HAS BEEN MADE ON THE BASIS OF ALLEGED PURCHASE DEEDS, THE AUTHORITIES BELOW HAVE COMMITTED GROSS ERROR OF LAW IN TREATING IT AS INCRIMINATING MATERIAL AND IN COMPLET ING THE ASSESSMENT U/S.153C OF THE ACT. THE PURCHASE DEEDS ARE NOT COMING WITHIN THE AMBIT OF INCRIMINATING MATERIAL, SO AS TO ATTRACT SECTION 153C OF THE ACT. IN VIEW OF THIS, THE VALIDITY OF THE IMPUGNED ASSESSMENT ORDER SO PASSED U/S.153C OF THE ACT BY THE LEARNED A.O. AND SUBSEQUENTLY, CONFIRMED BY THE LEARNED C.I.T.(A) BEING ILLEGAL, WITHOUT THE AUTHORITY OF LAW AND NOT SUSTAINABLE IN THE EYE OF LAW IS LIABLE TO BE QUASHED IN THE INTEREST OF JUSTICE. 5. THAT, IT MAY BE RESPECTFULLY SUBMITTED HERE THAT , SINCE NO ADDITION HAS BEEN MADE ON THE BASIS OF INCRIMINATING MATERIAL AND THE DOCUMENTS SO ALLEGED TO BE INCRIMINATING IN NATURE DO NOT HAVE ANY REVENUE IMPLICATION, THE AUTHORITIES BELOW HAVE COMMITTED GROSS ERROR OF LAW IN CONFIRMING THE ASSESSMENT OR DER, PARTICULARLY WHEN, LAW IN THIS ASPECT IS WELL SETTLED BY THE HON'BLE SUPREME COURT IN THE CASE OF IT (SS) A NO. 78 /CTK/2018 7 COMMISSIONER OF INCOME TAX VERSUS - SINHAAD TECHNICAL EDUCATIONAL SOCIETY SUPRA REPORTED IN 397 ITR 344 THAT, NO ASSESSMENT U/S.153C OF THE ACT CAN BE M ADE IN ABSENCE OF ANY INCRIMINATING MATERIAL. IN VIEW OF THIS, THE IMPUGNED ASSESSMENT ORDER SO PASSED FOR THIS ASSESSMENT YEAR BEING NOT SUSTAINABLE IN THE EYE OF LAW, NEEDS TO BE QUASHED IN THE INTEREST OF JUSTICE. SUBMISSION ON MERIT : 6. THAT, EVEN TH OUGH THE LEARNED A.O. COULD NOT GET ANY REVENUE IMPLICATION FROM THE ALLEGED SEIZED DOCUMENTS AND EVEN THOUGH THE SEIZED DOCUMENTS DO NOT RELATE TO THIS ASSESSMENT YEAR, STILL THE LEARNED A.O. PROCEEDED TO COMPLETE THE ASSESSMENT U/S.153C OF THE ACT. WHILE COMPLETING THE ASSESSMENT, THE LEARNED A.O. MADE THE FOLLOWING ADDITIONS / DISALLOWANCES ; SI NO HEAD OF ADDITION AMOUNT RELIEF GRANTED BY C.I.T(A) ISSUE PENDING BEFORE THIS HON'BLE TRIBUNAL 1. COMMISSION INCOME RS.10,11,780.00 NIL RS.10,11,780.00 2. S UNDRY CREDITOR RS. 4,00,000.00 NIL RS. 4,00,000.00 3. ADDITION U/S.40A(3) RS.93,40,000.00 RS.93,40,000.00 DEPARTMENT APPEAL DISMISSED 7. THAT, THE APPELLANT GIVES HEREWITH ISSUE - WISE SUBMISSIONS FOR BETTER APPRECIATION OF FACTS; AD DITION OF COMMISSION INCOME AND SUNDRY CREDITORS ARE ILLEGAL : 7.1. THAT, IT MAY BE RESPECTFULLY SUBMITTED HERE THAT, THERE IS NEITHER ANY SUCH COMMISSION INCOME EARNED BY THE ASSESSEE WHICH HE FAILED TO DECLARE IN THE * RETURN OF INCOME AND WHICH HE FAILE D TO JUSTIFY, NOR THE LEARNED A.O. COULD GET ANY EVIDENCE OF EARNING OF ANY COMMISSION INCOME WHICH WAS NOT DISCLOSED BY THE ASSESSEE. WHAT THE LEARNED A.O. DID, IS WHILE COMPLETING THE ASSESSMENT, HE COMPARED THE RETURN FILED U/S.153C WITH THE ORIGINAL RE TURN OF INCOME FILED ON 10.03.2012 U/S.139 OF THE ACT, AND FOUND THAT, IN THE ORIGINAL RETURN U/S.139 OF THE ACT, COMMISSION INCOME OF RS.10,11,780.00 WAS THERE, WHICH WAS NOT DISCLOSED IN THE RETURN FILED U/S.153C OF THE ACT. THEREAFTER, HE REQUIRED THE A SSESSEE TO EXPLAIN THE COMMISSION INCOME AND MADE ADDITION, IGNORING THE FACT THAT, IN THE ORIGINAL RETURN, THE APPELLANT HAD WRONGLY SHOWN PART OF GROSS RECEIPTS OF RS.10,11,780.00 AS INCOME FROM COMMISSION, PARTICULARLY WHEN, THERE IS NO SUCH COMMISSION INCOME EARNED. THE SAID COMMISSION INCOME DECLARED WRONGLY WAS PART OF THE GROSS RECEIPTS DISCLOSED. IN THE ORIGINAL RETURN OF INCOME, THE APPELLANT THOUGH DECLARED THE GROSS RECEIPTS TRULY AND CORRECTLY BUT INADVERTENTLY, WHILE PREPARING THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT, THE COMMISSION INCOME OF RS. 10,11,780.00 WAS WRONGLY REFLECTED, PARTICULARLY WHEN, THERE IS NO SUCH COMMISSION INCOME. IT WAS A BONAFIED MISTAKE WHICH WAS RECTIFIED WHILE FILING THE RETURN U/S.153C OF THE ACT. IT (SS) A NO. 78 /CTK/2018 8 7.2. THAT, SIMI LARLY, THE SUNDRY CREDITORS OF RS.4,00,000.00 WAS WRONGLY * DISCLOSED IN THE ORIGINAL RETURN, WHICH WAS CORRECTED IN THE RETURN FILED U/S.153C OF THE ACT. WHILE PREPARING THE RETURN U/S.153C, WHEN THE APPELLANT CAME TO KNOW ABOUT THIS MISTAKE AND WRONG DEC LARATION OF SUNDRY CREDITORS, HE CORRECTED IT IN THE BALANCE SHEET AND FILED THE CORRECTED BALANCE SHEET ALONG WITH THE RETURN FILED U/S.153C OF THE ACT. THE LEARNED A.O. EVEN THOUGH HAS NO POWER, AUTHORITY AND JURISDICTION TO REFER TO THE ORIGINAL RETURN HOWEVER, HE EXCEEDED HIS JURISDICTION AND MADE THIS ADDITION. THE IMPUGNED ADDITIONS, THUS ARE COMPLETELY ILLEGAL, WITHOUT THE AUTHORITY OF LAW AND CONTRARY TO THE STATUTORY PROVISIONS OF LAW, HENCE BEING NOT SUSTAINABLE IN THE EYE OF LAW ARE LIABLE TO BE QUASHED/DELETED IN THE INTEREST OF JUSTICE. 7.3. THAT, ON PERUSAL OF SECTION 153C OF THE ACT, IT PROVIDES, THE PROCEDURE FOR COMPLETION OF ASSESSMENT IN RESPECT OF INCOME OF ANY OTHER PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A OF THE ACT, WH ERE A SEARCH IS INITIATED U/S.132 OF THE ACT AND BOOKS OF ACCOUNT, AND ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS SEIZED OR RE - QUESTIONED BELONGS TO SUCH OTHER PERSON. IN SUCH CASES, THE ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDANCE WITH THE PROVISION OF SECTION 153A OF THE ACT, IF THE ASSESSING OFFICER IS SATISFIED THAT, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR RE - QUEST IONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PERSON {FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR RE - QUESTIONED OR REQUISITION IS MADE AND } F OR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB - SECTION (1 ) OF SECTION 153 A OF THE ACT. SECTION 153C STARTS WITH A NON - OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE COVERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEA RCH MADE AFTER 31 ST OF MAY 2003. THE SECTIONS, SO EXCLUDED RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS, HOWEVER THE PROVISIONS THAT ARE SAVED ARE THOSE U/S.153B AND 153C, SO THAT THESE THREE SECTIONS 153A, 153B AND 153C ARE INTENDED TO BE A C OMPLETE CODE OF POST - SEARCH ASSESSMENTS. CONSIDERING THAT, THE NON - OBSTANTE CLAUSE U/S.153A EXCLUDES THE APPLICATION OF, INTER ALIA, SECTION 139, IT IS CLEAR THAT, THE RETURN FILED U/S.153A TAKES THE PLACE OF THE ORIGINAL RETURN U/S.139, FOR THE PURPOSE OF ALL OTHER PROVISIONS OF THE ACT. THEREFORE, THE POSITION THAT EMERGES FROM THE ABOVE - MENTIONED PROVISION IS THAT, ONCE THE ASSESSEE FILES A REVISED RETURN U/S.153C, FOR ALL OTHER PROVISIONS OF THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL R ETURN FILED U/S.139. IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 153C OF THE ACT, THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S.153C OF THE ACT IS TO BE CONSIDERED AS RETURNED FILED U/S.139 OF THE ACT. WHEN, THE ASSESSING OFFICER HAS ACCEPTED THE REVISED RETURN, FILED U/S.153C, NO OCCASION ARISES TO REFER TO THE PREVIOUS RETURN FILED U/S.139 OF THE ACT, FOR ALL PURPOSES INCLUDING THE PURPOSE OF LEVYING PENALTY ALSO. IN VIEW OF THE S SPECIFIC PROVISIONS OF THE ACT, THE LEARNED A.O. HAS NO IT (SS) A NO. 78 /CTK/2018 9 AUTHORITY AND JURISDICTION TO TAKE THE REFERENCE OF THE EARLIER RETURN FILED U/S.139 TO MAKE ANY ADDITION WITHOUT HAVING ANY CORROBORATIVE EVIDENCE IN HAND. THE IMPUGNED ADDITION THUS, IS WITHOUT THE AUTHORITY OF LAW, HENCE IS NOT SUSTAINABLE IN THE EYE OF LAW. 7.4 . THAT, LAW IN THIS ASPECT IS WELL SETTLED BY SERIES OF JUDGMENTS BY DIFFERENT HIGH COURTS AS WELL AS BY DIFFERENT TRIBUNALS ALL OVER THE COUNTRY THAT, RETURN FILED U/S. 153A SHOULD BE DEEMED TO BE THE RETURN FILED U/S. 139(1) OF THE ACT. IN THIS REGARD, T HE APPELLANT RELIES UPON THE RULING OF HON'BLE PUNE IT AT IN THE CASE OF SANIAV NANDLAL VVAS VS ITO. (ITAT PUNE) - IT A NO 771 TO 774/PN/201Q DATED 23.12.2011 WHICH DIRECTLY COVERS THE IMPUGNED ISSUES IN CASE OF THE APPELLANT. IN THE SAID CASE, THE HON'BLE ITAT HAS HELD THAT, RETURN U/S. 153A OF THE ACT ON THE BASIS OF WHICH ASSESSMENT WAS FRAMED HAS REPLACED ORIGINAL RETURN SUPERSEDING EARLIER RETURN AND SUPERSEDING THE ASSESSMENT BASED UPON THAT ORIGINAL RETURN. A RETURN FILED U/S. 153A TAKES THE PLACE OF THE ORIGINAL RETURN UNDER SECTION 139 OF THE AC T, FOR THE PURPOSES OF ALL OTHER PROVISIONS OF THE ACT. ONCE THE A.O. ACCEPTS THE REVISED RETURN FILED U/S. 153A, THE ORIGINAL RETURN U/S. 139 ABATES AND BECOMES NON - EST. IN THIS REGARD, THE APPELLANT FURTHER RELIES X UPON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME - TAX - 19 VS NEERAF JINDAL [2017] 393ITR 1 ( DEL HI), WHEREIN THEIR LORDSHIPS HAVE HELD THAT; THE POSITION THAT EMERGES FROM THE ABOVE - MENTIONED PROVIS ION IS THAT ONCE THE ASSESSEE FILES A REVISED RETURN U/S. 153A OF THE ACT, FOR ALL PURPOSES, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED U/S. 139 OF THE ACT. ON SIMILAR LINES, THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAHVABHA I PATEL V. ASSTT. CITI'20151 280 CTR 216. HELD THAT: 'IN VIEW OF SPECIFIC PROVISION OF SECTION 153A OF THE I.T.ACT., THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE IT. ACT IS TO BE CONSIDERED AS RETURN FILED UNDER SECTION 139 OF THE ACT, AS THE A.O. HAS MADE ASSESSMENT ON THE SAID RETURN FOR ALL PURPOSE AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENALTY U/S. 271(L)(C) OF THE I.T. ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE I NCOME RETURNED U/S. 153A OF THE ACT, IF ANY. 'THUS, IT IS CLEAR THAT, WHEN THE A.O. HAS ACCEPTED THE REVISED RETURN FILED BY THE ASSESSEE U/S.153A OF THE ACT, NO OCCASION ARISES TO REFER TO THE PREVIOUS RETURN FILED U/S. 139 OF THE ACT AS IT BECAME NON - EST AND LOST ITS EXISTENCE. FOR ALL PURPOSES, INCLUDING FOR THE PURPOSE OF LEVYING PENALTY U/S. 271(L)(C) OF THE ACT, THE RETURN THAT HAS TO BE LOOKED AT IS THE ONE FILED U/S.153A OF THE ACT.' SIMILARLY, IN THE CASE OF ACIT, CENTRAL CIRCLE - 1(3). CHENNAI VS. V.N. DEVADOSS F20131 32 TAXMANN.COM 133 FCHENNAI - TRIB.) HON'BLE ITAT CHENNAI BENCH HAS HELD THAT, THE RETURNS FILED BY THE ASSESSEE U/S. 153A OF THE ACT ARE TO BE TREATED AS RETURNS FILED U/S. 139(1) OF THE ACT DY VIRTU E OF THE LAW STATED IN SECTION 153A(L)(A) OF THE ACT. WE QUOTE FROM THE HEAD NOTES AS UNDER: - 'WHETHER A RETURN FILED IN PURSUANCE OF A NOTICE ISSUED U/S.153A IS AS GOOD AS A RETURN FILED UNDER SECTION 139 AND MORE PARTICULARLY U/S.139(1) - HELD, YES - WHETH ER DEDUCTION CLAIMED UNDER SECTION 80 - IB(10) IN A RETURN FILED UNDER SECTION 153A CAN BE DENIED ON GROUND IT (SS) A NO. 78 /CTK/2018 10 THAT, CLAIM WAS NOT MADE EARLIER IN A RETURN FILED UNDER SECTION 139(1) - HELD, NO [PARAS 26 TO 42] [IN FAVOUR OF ASSESSEE]' THE RIDER PROVIDED UNDER LAW BY SECTION 80AC DOES NOT APPLY TO THE INSTANT CASE AND THE RETURNS FILED BY THE ASSESSEE UNDER SECTION 153A HAVE BEEN CONSIDERED AS RETURNS FILED UNDER SECTION 139(1) WITHIN TIME. AS PER SECTION 80AC, NO DEDUCTION UNDER SECTION 80IB SHALL BE ALLOWED UN LESS RETURN OF INCOME IS FURNISHED BEFORE DUE DATE UNDER SECTION 139(1) OF THE ACT. ACCORDINGLY, IT WAS HELD IN THIS CASE CLEARLY THAT, RETURN U/S.153A IS AS GOOD AS A RETURN FILED UNDER SECTION 139(1) OF THE ACT. FURTHER HON'HLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS B.G SHIRKE CONSTRUCTION TECHNOLOGY PVT LTD 120171 79 TAXMANN.COM 306(BOM) HELD THAT: 'A RETURN FILED U/S. 153A IS A RETURN FURNISHED U/S. 139 OF THE ACT AND THEREFORE, PROVISIONS OF THE ACT WHICH APPLY TO RET URN FILED IN REGULAR COURSE U/S. 139(1), WOULD ALSO CONTINUE TO APPLY IN CASE OF RETURN FILED U/S. 153A.' IN VIEW OF THE ABOVE AS THE APPELLANT'S RETURN WAS FILED AND ASSESSED U/S.153A AND THIS RETURN IS TREATED AS A VALID RETURN FOR THE SAID ASSESSMENT U/ S.153A, IT IS A RETURN U/S. 139(1) FILED BY THE APPELLANT. AS SEEN FROM THE ABOVE, THE CLAIM OF THE APPELLANT IS SQUARELY COVERED BY DIRECT CASE LAWS OF HIGH COURTS AND TRIBUNAL IN HIS FAVOUR. AS SUCH, THE SAME DESERVES TO BE FOLLOWED IN APPELLANT'S FAVOUR. IN VIEW OF THE ABOVE, IT IS PRAYED THAT, SINCE THE AUTHORITIES BELOW HAS NO POWER TO REFER TO THE ORIGINAL RETURN, THE ADDITION OF COMMISSION INCOME OF RS.10,11,780.00 AND SUNDRY CREDITORS OF RS. 4,00,000.00 ON THE BASIS OF DECLARATION MADE IN THE ORIGINAL RETURN AND ORDER OF LEARNED C.I.T.(A) SUSTAINING THE SAME, BEING WITHOUT THE AUTHORITY OF LAW, DESERVES TO BE QUASHED/DELETED. 7.5. THAT, IT MAY BE RESPECTFULLY SUBMITTED HERE THAT, ISSUE IN DISPUTE IS ALSO COVERED BY THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX - VS - NEERAI JINDAL (2017) 393 ITR 1 (DELHI), WHEREIN THE HON'BLE HIGH COURT HELD THAT, ONCE THE ASSESSEE FILES A REVISED RETURN U/S.153A OF THE ACT, FOR PURPOSES OF ALL OTHER PROVISIONS OF THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED U/S. 139 OF THE ACT. THEREFORE, IT MAY BE PRAYED TO FOLLOW THE AFORESAID DECISIONS. 7.6. THAT, ON PERUSAL OF THE PROVISIONS OF SECTION 153A OF THE ACT WHICH IS REPRODUCED AS ABOV E. IT IS SEEN THAT, SECTION 153A STARTS WITH NON - OBSTANTE CLAUSE WHICH INTER ALIA OVERRIDES THE PROVISIONS OF SECTION 139 OF THE ACT. THIS SHOWS THAT, RETURN FILED U/S.153A IS A SEPARATE RETURN AND THE HON'BLE HIGH COURTOF DELHI IN THE CASE OF PRINCIPAL CO MMISSIONER OF INCOME - TAX - 19 VS. NEERAI JINDAL [ 2017 ] 393 ITR 1 (DELHI) HELD THAT, ONCE THE ASSESSEE FILES A REVISED RETURN U/S.153A, FOR THE PURPOSES OF ALL OTHER PROVISIONS OF THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED U/S. 139. THE REFERENCE TO REVISED RETURN U/S.153A IN THIS DECISION R EFERS TO RETURN U/S. 153A. WHEN THE A.O. HAS ACCEPTED THE RETURN FILED BY THE ASSESSEE U/S.153A, NO OCCASION ARISES TO REFER TO THE PREVIOUS RETURN FILED U/S.139 OF THE ACT. FOR ALL PURPO SES OF THE ACT, THE RETURN THAT HAS TO BE LOOKED AT IS THE ONE FILED U/S.153A. IN ASSESSE E 'S CASE ALSO, THE RETURN FILED U/S. 153C WAS IT (SS) A NO. 78 /CTK/2018 11 ACCEPTED AND ASSESSED BY THE LEARNED A.O. THE RATIO IN THE ABOVE DECISIONS SQUARELY SUPPORTS THE SUBMISSIONS OF THE ASSES SEE. IN VIEW OF THE ABOVE CLEAR AS WELL AS SETTLED POSITION OF LAW, BOTH ADDITIONS OF COMMISSION OF RS.10,11,780.00 AND SUNDRY CREDITOR OF RS.4,00,000.00 MADE BY THE LEARNED A.O. REFERRING TO THE ORIGINAL RETURN AND SUBSEQUENTLY CONFIRMED BY THE LEARNED C. I.T(A) BEING NOT SUSTAINABLE IN THE EYE OF LAW ARE LIABLE TO BE QUASHED/DELETED IN THE INTEREST OF JUSTICE. IN ADDITION TO THE ABOVE WRITTEN SUBMISSIONS, THE LD. AR MADE ORAL ARGUMENTS ALSO. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF AO AND CIT( A) WITH REGARD TO ADDITIONS MADE ON ACCOUNT OF INCOME FROM COMMISSION AND BOGUS SUNDRY CREDITORS. THE LD. DR FURTHER SUBMITTED THAT THE COMMISSION INCOME WAS SHOWN IN ORIGINAL FILED U/S.139(1) OF THE ACT WHICH HAS NOT BEEN DECLARED IN PURSUANT OF THE RETUR N FILED U/S.153C OF THE ACT UNDER THE HEAD UNDISCLOSED INCOME WHICH HAS BEEN DISCOVERED BY THE AO DURING THE COURSE OF ASSESSMENT AND HE HAS ALSO MANIPULATED IN THE CREDITOR SHOWN IN THE ORIGINAL RETURN BY RS.4 LAKHS. THE INCOME DECLARED IN THE ORIGINAL RE TURN CANNOT BE SHOWN LESS THAN THE INCOME DISCLOSED IN THE RETURN FILED IN PURSUANT TO THE NOTICE ISSUED U/S.153C OF THE ACT. THE INCOME DECLARED IN THE ORIGINAL RETURN CAN ONLY BE ENHANCED/REDUCED BY WAY OF REVISED RETURN , WHICH HAS NOT BEEN DONE BY THE A SSESSEE IN THE PRESENT CASE. THE CASE LAW RELIED ON BY THE LD. AR IS NOT APPLICATION IN THE PRESENT FACTS OF THE CASE. 7. WE HAVE HEARD THE ARGUMENTS ADVANCED BY BOTH THE PARTIES AT LENGTH AND PERUSED THE ENTIRE MATERIAL AVAILABLE ON RECORD ALONG WITH IT (SS) A NO. 78 /CTK/2018 12 THE ORDERS OF AUTHORITIES BELOW AND CASE LAWS RELIED DURING THE COURSE OF HEARING BEFORE US. 8. FIRST OF ALL, WE WOULD LIKE TO ADD SOME MORE FACTS EMANATING FROM THE RECORD OF THE TRIBUNAL FOR COMPLETENESS OF OUR ORDER THAT AGAINST THE ADDITION DELETED BY THE CIT(A), THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL BEARING IT(SS)A NO.76/CTK/2018 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, AGAINST WHICH THE ASSESSEE PREFERRED CROSS OBJECTION REGISTERED AS CO NO.04/CTK/2019. WHEN THE TRIBUNAL DISMISSED THE APPEA L OF REVENUE AS THE SAME IS BELOW THE MONETARY LIMIT PRESCRIBED BY THE CBDT CIRCULAR NO.17/2019, DATED 8 TH AUGUST, 2019, THE CROSS OBJECTION FILED BY THE ASSESSEE SUPPORTING THE ORDER OF CIT(A) IN DELETING THE ADDITION, WAS ALSO DISMISSED. FOR THE SAKE OF CLARITY, WE WOULD LIKE TO REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION : - FOR THAT, GROUNDS TAKEN IN APPEAL FILED BY THE DEPARTMENT ARE WITHOUT ANY BASIS AND CONTRARY TO THE FACTS ON RECORD AND BEING DEVOID OF ANY MERIT ARE LIABLE TO BE DISMISSED IN THE INTEREST OF JUSTICE. FOR THAT, THE LEARNED C.I.T.(A) HAS DELETED THE IMPUGNED ADDITION MADE BY THE LEARNED A.O. BY DISALLOWING EXPENDITURES BY APPLYING SECTION 40A(3) OF THE I.T. ACT, 1961 ON THE BASIS OF FINDINGS GIVEN BY THE A.O. ON THE REMAND REPORT. THEREFORE, THE IMPUGNED ORDER PASSED BY THE LEARNED C.I.T.(A), BEING JUSTIFIED, NEEDS TO BE CONFIRMED AND HENCE, GROUND NO. 1 TAKEN BY THE LEARNED A.O. NEEDS TO BE DISMISSED IN THE INTEREST OF JUSTICE. FOR THAT, AVERMENTS TAKEN IN GROUN D NO.2 TAKEN BY THE LEARNED A.O. IS WRONG AND CONTRARY TO THE FACTS ON RECORD. THE LEARNED C.I.T.(A) HAS DELETED ADDITION OF RS.1,20,80,000.00 ON THE BASIS OF REMAND REPORT, HENCE THE IMPUGNED GROUND BEING DEVOID OF ANY MERIT NEEDS TO BE DISMISSED IN THE I NTEREST OF JUSTICE. IT (SS) A NO. 78 /CTK/2018 13 FOR THAT, DURING REMAND PROCEEDING, THE LEARNED A.O. EXAMINED EACH OF THE FISHERMAN AND HAS GIVEN FINDINGS THAT, FISH WERE PURCHASED IN CASH FROM FISHERMAN IN HIS REMAND REPORT, FOLLOWING THE REMAND REPORT, THE LEARNED C.I.T(A) DELETED THE ADDITION. THEREFORE, THERE IS NOTHING WRONG IN THE ORDER PASSED BY THE LEARNED C.I.T(A). GROUND NO.3 TAKEN BY THE LEARNED A.O. NEEDS TO BE DISMISSED IN THE INTEREST OF JUSTICE. FOR THAT, THE RESPONDENT CRAVES LEAVE OF THIS HON'BLE TRIBUNAL TO URGE AN Y OTHER GROUNDS OF APPEAL, IF ANY, AT THE TIME OF HEARING. NOW, THE ASSESSEE IS IN APPEAL BEFORE US AGITATING THE ADDITIONS CONFIRMED BY THE CIT(A) AS WELL AS WITH THE LEGAL GROUND THAT THE ORDER PASSED BY THE AO IS WITHOUT JURISDICTION. LD. AR BEFORE US SUBMITTED THAT THE ASSESSEE HAS RAISED LEGAL GROUND BEFORE THE CIT(A) IN GROUND NO.1, HOWEVER, THE SAME HAS NOT BEEN DECIDED. ON PERUSAL OF THE APPELLATE ORDER, WE FOUND THAT IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED THAT THE ASSESSEE HAS RAISED THE L EGAL GROUND BEFORE THE CIT(A) IN GROUND NO.1 AND THE CIT(A) HAS NOT ADJUDICATED THE SAME MENTIONING THAT GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT NEED SEPARATE CONSIDERATION, THEN A QUESTION ARISES AS TO WHETHER ANY APPLICATION HAS BEEN FILED BY THE A SSESSEE BEFORE THE CIT(A) FOR ANY RECTIFICATION O F MISTAKE IN HIS ORDER . HOWEVER, THERE IS NO SUCH EXPLANATION ON THE PART OF THE ASSESSEE IN THIS REGARD BEFORE US. 9. BE THAT AS IT MAY, IF WE TAKE INTO CONSIDERATION OF THE LEGAL GROUND AS STATED BY THE L D. AR IN THE WRITTEN SUBMISSION AS WELL AS IN ORAL SUBMISSIONS , WE FOUND THAT, I N FACT, IT IS CLEAR THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 14.03.2012 DECLARING AT INCOME OF RS.7.52.329/ - AND THE SAME INCOME WAS ALSO IT (SS) A NO. 78 /CTK/2018 14 DECLARED IN PURSUANT TO RETURN FILED U/S.153C OF THE ACT ON 05.02.2016. IN THE RETURN U/S.153 C OF THE ACT, CERTAIN CHA NGES HAVE BEEN MADE VIZ. COMMISSION INCOME NOT SHOWN, DIFFERENCE IN CREDITORS, FIGURES. WE OBSERVED FROM THE ORIGINAL RETURN FILED B Y THE ASSESSEE IN ITR - IV DATED 10.03.2012 DECLARING INCOME OF RS.7,52,329/ - AFTER DEDUCTION CLAIMED UNDER CHAPTER - VIA, THE FIRST PAGE OF THE ITR FILED BY THE ASSESSEE. IN THE INFORMATION COLUMN THE ASSESSEE HAS SUBMITTED THAT HE IS LIABLE FOR AUDIT U/S.44A B OF THE INCOME TAX ACT. UNDER THE INFORMATION REGARDING AUDIT U/S.44AB OF THE ACT IN WHICH HE HAS MENTIONED THE DATE OF AUDIT REPORT AS 10.09.2011. IN THE VERIFICATION PART OF THE RETURN THE DATE MENTIONED IS 08.03.2012 AND THE ACKNOWLEDGEMENT HAS BEEN GE NERATED ON 10.03.2012. IF THE ASSESSEE HAS GOT AUDITED U/S.44AB OF THE INCOME TAX ACT AND HAS OBTAINED AUDIT REPORT FROM A ACCOUNTANT AS DEFINED IN THE INCOME TAX ACT, THE FIGURES SHOWN IN THE FINANCIAL STATEMENTS ARE PUT IN THE APPROPRIATE COLUMNS AND THE FIGURES SHOWN IN THE INCOME TAX RETURN SHOULD BE TALLIED WITH THE FINANCIAL STATEMENTS. 10. FURTHER, WE OBSERVED FROM THE RETURN FILED ON 05.02.2016 IN PURSUANCE OF NOTICE ISSUED U/S.153C OF THE ACT , IN THE INFORMATION COLUMN AT THE VERY FIRST PAGE OF THE INCOME TAX RETURN FORM REGARDING AUDIT U/S.44AB OF THE ACT ARE SIMILAR TO THE ORIGINAL RETURN FILED U/S.139(1) OF THE ACT. THE FIGURES SHOWN IN THE INCOME TAX RETURN ARE IN AGREEMENT WITH THE AUDIT REPORTS PRODUCED BEFORE US WHICH IS PLACED IN IT (SS) A NO. 78 /CTK/2018 15 THE PAPER B OOK AT PAGE NOS.32 TO 39. BUT THE COMMISSION INCOME HAS NOT BEEN SHOWN AND THE CREDITORS FIGURES ARE DIFFERENT. IT IS BEYOND THE SCOPE OF OUR UNDERSTANDING THAT AS TO WHY FIGURES ARE DIFFERENT IN BOTH THE RETURNS SUBMITTED BY THE ASSESSEE WITH THE INCOME T AX DEPARTMENT, WHEREAS THE AUDITOR AND THE DATE OF AUDIT REPORT IS ALSO SAME IN THE BOTH THE RETURNS. 11. THE SEARCH HAS BEEN CON DUCTED ON 08.10.2013 AND A DOCUMENT FOUND NAMED AS HRKR - 3, WHICH HAS ALSO BEEN PRODUCED BY THE LD. AR IN HIS PAPER BOOK AT PAG E NO . 66 TO 110 (HRKR - 3) WHICH WAS DISCLOSED IN HIS FINANCIAL STATEMENTS . WE NOTICE THAT THE SCRUTINY NOTICED CAN BE ISSUED FOR THE ASSESSMENT YEAR 2012 - 2013 UPTO 30.09.2013 MUCH PRIOR TO DATE OF SEARCH . FROM THE RECORDS/SUBMISSIONS OF BOTH THE SIDES, IT IS CLEAR THAT ON THE DATE OF SEARCH, T HERE WERE NO ANY ASSESSMENT PENDING BEFORE THE AO ON THE DATE OF SEARCH. IN VIEW OF THIS IT CAN BE KEPT AS UNDER THE UNABATED ASSESSMENT YEAR. IN FACT, IT IS ALSO CLEAR AS PER PLAIN READING OF THE SECTION S 153C/153A OF T HE ACT THAT THE AO CAN ISSUE NOTICE FOR THE SIX ASSESSMENT YEARS PRIOR TO THE DATE OF SEARCH. LD. AR RELYING ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA [2016] 380 ITR 573 (DELHI) , SUBMITTED THAT AS THERE IS NO INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS, THE ASSESSMENT ORDER PASSED BY THE AO IS NOT SUSTAINABLE. FOR THE SAKE OF CLARITY WE WOULD LIKE TO REPRODUCE THE SUMMARY OF THE IT (SS) A NO. 78 /CTK/2018 16 LEGAL POSITION DRAWN BY THE HONBLE DELHI HIGH COURT AT PARA 37 , WHICH READ AS UNDER: - 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER : (I) ONCE A SEARCH TAKES PLACE U NDER 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 R ELATABLE 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 UN DER 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 PR ODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. IT (SS) A NO. 78 /CTK/2018 17 12. LD. AR INVITING OUR ATTENTION TO SUB - PARA (VII) OF PARA 37 OF THE SAID DECISION OF THE HONBLE HIGH COURT, SUBMITTED THAT IN THE CASE OF THE ASSESSEE THERE IS NO INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THEREFORE, AS PER THE DECISION OF THE HONBLE HIGH COURT IN THE ABOVE CASE, THE INTERFERENCE BY THE AO U/S.153A OF THE ACT WITH THE ASSESSMENT ALREADY COMPLETED U/S.143(3) OF THE ACT IS UNJUSTIFIABLE. HO WEVER, ON CAREFUL PERUSAL OF THE PARA 36(VII) OF THE ABOVE OBSERVATIONS OF THE HONBLE HIGH COURT, WE FOUND THAT THE HONBLE HIGH COURT IN THE ABOVE PARA HAS OBSERVED THAT 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. 13. IN OUR OPINION, THE CASE OF THE ASSESSEE CLEARLY FALLS WITHIN THE AMBIT OF THE OBSERVATIONS OF THE HONBLE HIGH COURT IN PARA 37(VII) OF THE ABOVE DECISIONS TOWARDS UNDISCLOSED INCOME . WE, THEREFORE, REJECT THE CONTENTION OF THE ASSESSEE THAT THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH BY WHICH THE AO CANNOT INTERFERE WITH THE ASSESSMENT COMPLETED ORIGINALLY WHILE MAKING THE ASSESSMENT U/S.153 C OF THE ACT. IT (SS) A NO. 78 /CTK/2018 18 14. APART FROM TH E ABOVE, IT IS ALSO A FACT THAT THE LD. AR OF THE ASSESSEE, IN ONE HAND, SUPPORTED THE ORDER OF THE CIT(A) IN CASE OF RELIEF GIVEN BY THE CIT(A) AGAINST THE ADDITION MADE U/S.40A(3) OF THE INCOME TAX ACT, WHICH HAS BEEN MADE BY THE AO IN HIS ORDER WITHOUT REFERRING TO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION. ON THE OTHER HAND, THE ASSESSEE HAS CONTESTED BY WAY OF LEGAL GROUND AS WELL AS ON MERITS THAT THE AO HAS MADE ADDITION ON THE BASIS OF MISMATCHING IN THE FIGU RES SHOWN IN THE ORIGINAL RETURN FILED U/S.139(1) OF THE ACT AND RETURN FILED U/S.153C OF THE INCOME TAX ACT. IN OUR OPINION, THE ABOVE DISCREPANCIES FALL WITHIN THE AMBIT OF UNDISCLOSED INCOME NOTICED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.153COF THE INCOME TAX ACT, 1961. THE DUAL POLICY TAKEN BY THE ASSESSEE CANNOT BE ACCEPTED. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE CASE LAW RELIED ON BY THE LD. AR OF THE ASSESSEE IS NOT APPLICABLE IN THE PRESENT CASE. IN VIEW OF THE A BOVE THE LEGAL GROUND RAISED BY THE ASSESSEE IS HEREBY REJECTED. 15. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT EXPLAIN THE DIFFERENCES NOTICED BY THE AO IN BOTH THE RETURNS. THE ASSESSEE HAD OPPORTUNITY IN THE APPELLATE PROCEEDIN GS, HOWEVER, HE COULD NOT AVAIL THE SAME AND FAILED TO EXPLAIN BEFORE THE CIT(A). FOR THE IT (SS) A NO. 78 /CTK/2018 19 SAKE OF READY REFERENCE, THE OBSERVATIONS MADE BY THE CIT(A) IN THIS REGARD READ AS UNDER : - 5. GROUND NO. 6 AND 8: - 5.1 IN THESE GROUNDS, THE APPELLANT HAS CONTESTED THE ADDITION MADE BY THE ASSESSING OFFICER OF RS 10,11,780/ - . ACCORDING TO THE ASSESSING OFFICER, THE APPELLANT HAS DISCLOSED INCOME FROM COMMISSION OF RS 10,11,780/ - IN THE RETURN FILED U/S. 139 OF I.T ACT, 1961, HOWEVER, THIS INCOME HAS NOT BEE N DECLARED IN THE RETURN FILED U/S. 153C OF I.T ACT, 1961. THE ASSESSING OFFICER HAS OBSERVED THAT THE APPELLANT HAS NOT GIVEN ANY REASON AS TO WHY THIS INCOME HAS NOT BEEN DECLARED IN RETURN FILED U/S. 153C OF I.T ACT, 1961. 5.2 DURING THE COURSE OF AP PEAL PROCEEDINGS, THE APPELLANT HAS STATED THAT COMMISSION INCOME WAS WRONGLY OFFERED FOR TAX, EVEN THOUGH, IT WAS NOT EARNED BY THE APPELLANT AND THEREFORE, THE MISTAKE WAS RECTIFIED WHILE FILING RETURN OF INCOME U/S. 153C OF I.T ACT, 1961. 5.3 I HAVE C AREFULLY EXAMINED THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE , APPELLANT. I FIND THAT THE APPELLANT HAS NOT GIVEN ANY EXPLANATION REGARDING THE NATURE OF MISTAKE. NO DOCUMENT SUCH AS BOOKS OF ACCOUNT OR BANK STATEMENT OR CASH FLOW - STATEMENT HAS BEEN F ILED BY THE APPELLANT. FURTHER, THE PROCEEDINGS U/S. 153C OF LT ACT, 1961, CANNOT BE USED BY THE APPELLANT TO REDUCE HIS INCOME. IF THE APPELLANT WANTS TO REDUCE HIS INCOME, HE HAS TO FILE REVISED RETURN OF INCOME. THIS HAS NOT BEEN DONE BY THE APPELLANT. CONSIDERING TH ESE ASPECTS, THE ADDITION OF RS. 10,11,780/ - IS CONFIRMED. THE GROUNDS OF APPEAL ARE DISMISSED. 6. GROUND NO. 7: - 6.1 IN THIS GROUND, THE APPELLANT H AS CONTESTED THE ADDITION OF RS 4,00,000/ - ON ACCOUNT OF BOGUS SUNDRY CREDITORS. THE APPELLANT HAS STATED THAT HE HAS REDUCED HIS SUNDIY CREDITORS BY RS 4,00,000/ - AND AMOUNT IS ADDED IN CAPITAL. DURING THE COURSE OF APPEAL PROCEEDINGS, THE APPELLANT HAS STATED THAT HE - HAS SUO - MOTO REDUCED HIS SUNDRY CREDITORS BY RS. 4,00,000/ - AND THEREFOR E, THE ASSESSING OFFICER SHOULD NOT HAVE MADE THIS ADDITION. 6.2 I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE A PPELLANT. SUNDRY CREDITORS ARISE WHEN THE EXPENSES ARE BOOKED BUT PAYMENT IS NOT MADE. THE APPELLANT'S ACTION CLEARLY SUGGESTS THAT HE HAD BOOKED EXPENDITURE IN THE PAST WHICH LED TO THE LIABILITY. IN THE IMPUGNED ASSESSMENT YEAR THE APPELLANT HAS WRITTEN OFF THIS LIABILITY. THE PROVISIONS OF SECTION 41(1) OF IT ACT, 1961 ARE ATTRACTED AS LIABILITY HAS CEASED TO E XIST. CONSIDERING THESE ASPECTS, THE ADDITION OF RS 4,00,000/ - IS CONFIRMED. THE GROUND OF APPEAL IS DISMISSED. IT (SS) A NO. 78 /CTK/2018 20 AS PER OUR CONSIDERED OPINION, THE CIT(A) HAS PASSED A GOOD AND REASONED ORDER IN RESPECT OF TWO ADDITIONS MADE BY THE AO REGARDING COMMISSION INCOME OF RS.10,11,780/ - AND DIFFERENCE IN THE SUNDRY CREDITORS OF RS.4,00,000/ - , WHICH DO NOT REQUIRE ANY FURTHER INTERFERENCE BY US. ACCORDINGLY, WE DISMISS THE GROUNDS RAISED BY THE ASSESSEE ON MERITS. CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS DISMIS SED. 16 . IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 / 0 8 / 20 20 . S D/ - ( C.M.GARG ) S D/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 10 / 0 8 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 1. / THE APPELLANT - MUZIBUR RAHEMAN KHAN, NEAR RAILWAY STATION, TALCHER, DIST - ANGUL, PIN - 759116, ODISHA 2. / THE RESPONDENT - ACIT, CENTRAL CIRCLE - 1, BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//