Smt. Ashadevi Mittal, Rajasthan V. DCIT, Central Circle-2, Vadodara

ITSSA 79/AHD/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9741 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Double taxation relief
• Section: 143(3); 142(1); 153A; 132

Judgement Text

, CH CHCH CH IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD L LL LK KK KOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK ] YS[KK ] YS[KK ] YS[KK LNL; ,O LNL; ,O LNL; ,O LNL; ,O EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D ;D;D ;D LNL; LNL; LNL; LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER INCOME TAX (SS) APPEAL NOS. 79 TO 84/AHD/2018 ( / ASSESSMENT YEARS : 2008-09 TO 2013-14) SMT ASHADEVI MITTAL, (PROP. MITTAL CHEMICALS), 126, SHAKTINAGAR, DASSEHRA SCHEME, DADABARI, KOTA (RAJASTHAN) 324 009. / VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, BARODA. ./ ./ PAN/GIR NO. : ACEPM 9244 Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ANIL KSHATRIYA, A.R. / RESPONDENT BY : SHRI SUBHAS BAINS, CIT-D.R. / DATE OF HEARING 05/12/2018 !'# / DATE OF PRONOUNCEMENT 12/12/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THESE ARE SIX APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-13, AHMEDABAD, DATED 19-01-2018 FOR THE ASSESSMENT YEA RS (AYS) 2008- 09, 2009-10, 2010-11, 2011-12, 2012-13 & 2013-14. 4 - 2 - 2. IN ITA NO.79/AHD/2018 FOR A.Y. 2008-09 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY, ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVI DENCE OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE AS SESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDICTION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT IN THE CASE OF THE APPELLANT AND AS SUCH THE ILLEGAL NOTICE ISSUED U/S . 153A AND THE CONSEQUENT ORDER PASSED ARE LIABLE TO BE QUASHED/AN NULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 1 7,48,083/- ON ACCOUNT OF DIVIDEND INCOME FROM SRILANKAN COMPANY, WHEN THE SAME IS WHOLLY UNWARRANTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COMPAN Y WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELLANT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 4 - 3 - 3. IN ITA NO.80/AHD/2018 FOR A.Y. 2009-10 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY, ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVI DENCE OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE AS SESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDICTION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT IN THE CASE OF THE APPELLANT AND AS SUCH THE ILLEGAL NOTICE ISSUED U/S .. 153A AND THE CONSEQUENT ORDER PASSED ARE LIABLE TO BE QUASHED/AN NULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 2 ,61,00,000/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN SHARES, WHEN T HE SAME IS WHOLLY UNWARRANTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING THE CO NTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 4 4,68,971/- ON ACCOUNT OF DIVIDEND INCOME FROM SRILANKAN COM PANY, WHEN THE SAME IS WHOLLY UNWARRANTED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJEC TING THE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COM PANY WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELL ANT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING THE C ONTENTION OF THE 4 - 4 - APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 4. IN ITA NO.81/AHD/2018 FOR A.Y. 2010-11 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY, ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVI DENCE OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE AS SESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDICTION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT IN THE CASE OF THE APPELLANT AND AS SUCH THE ILLEGAL NOTICE ISSUED U/S .. 153A AND THE CONSEQUENT ORDER PASSED ARE LIABLE TO BE QUASHED/AN NULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 2 5,28,463/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN SHARES, WHEN T HE SAME IS WHOLLY UNWARRANTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COMPANY WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELLANT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND 4 - 5 - UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 5. IN ITA NO.82/AHD/2018 FOR A.Y. 2011-12 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY, ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVI DENCE OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE AS SESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDICTION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT IN THE CASE OF THE APPELLANT AND AS SUCH THE ILLEGAL NOTICE ISSUED U/S . 153A AND THE CONSEQUENT ORDER PASSED ARE LIABLE TO BE QUASHED/AN NULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 1 8,28,711/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN SHARES, WHEN T HE SAME IS WHOLLY UNWARRANTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COMPANY WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELLANT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND 4 - 6 - UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 6. IN ITA NO.83/AHD/2018 FOR A.Y. 2012-13 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY, ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVI DENCE OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE AS SESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDICTION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT IN THE CASE OF THE APPELLANT AND AS SUCH THE ILLEGAL NOTICE ISSUED U/S .. 153A AND THE CONSEQUENT ORDER PASSED ARE LIABLE TO BE QUASHED/AN NULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 4 4,68,971/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN SHARES, WHEN T HE SAME IS WHOLLY UNWARRANTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COMPANY WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELLANT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND 4 - 7 - UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 7. ASSESSEE VIDES APPLICATION/LETTER DATED 01/12/20 18 AMENDED THE GROUND NO. 3 IN ITA NO.83/AHD/2018 FOR A.Y. 2012-13 WHICH IS REPRODUCED AS UNDER: 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW, THE ''LD.CIT(A) HAS GROSSLY ERRED IN NOT DELET ING THE IMPUGNED ADDITION OF RS.43,12,165/- SO MADE BY THE A.O ON AC COUNT OF DIVIDEND INCOME FROM SRILANKAN COMPANY, WHEN THE SAME IS WHO LLY UNWARRANTED. 8. IN ITA NO.84/AHD/2018 FOR A.Y. 2013-14 THE GROUNDS OF APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE ASSESSMENT ORDER PASSED BY THE A.O. IS ARBI TRARY ILLEGAL AND BAD IN LAW IN AS MUCH AS THAT IN ABSENCE OF ANY EVIDENC E OR INCRIMINATING MATERIAL FOUND AND SEIZED, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION HAVING BEARING UPON THE EXISTENCE OF ANY UNDISCLOSE D INCOME IN THE HANDS OF THE APPELLANT, THERE WAS NO VALID JURISDIC TION FOR LEGALLY INITIATING PROCEEDINGS U/S. 153A OF THE ACT, IN THE CASE OF THE APPELLANT AND AS SUCH THE NOTICE ISSUED U/S. 153A AND THE INV ALID ORDER PASSED ARE LIABLE TO BE QUASHED/ANNULLED OR CANCELLED. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH THAT FIRSTLY A NOTICE U/S. 153A WAS ISSUED ON 21/10/2013, SECONDLY A NOTICE U/S. 143(2) WAS ISSUED ON 16/12/2013 REFERRING TO ROI FI LED ON 09/12/2013, THIRDLY A NOTICE U/S. 143(2) WAS ISSUED ON 08/09/20 14 REFERRING TO ROI FILED ON 29/09/2013, FOURTHLY IN SUPERSESSION OF TH E EARLIER NOTICE A NOTICE U/S. 143(2) WAS ISSUED ON 11/09/2014 REFERRI NG TO ROI FILED ON 09/12/2013 & THE ASSESSMENT ORDER WAS FRAMED ON 23/ 12/2016 U/S. 153A R.W.S 143(3) OF THE ACT, RENDERING THE IMPUGNE D ORDER BARRED BY LIMITATION U/S. 153(1) IN REGARD TO VALID ROI FILED U/S. 139(1) OF THE ACT ON 29/09/2013. 4 - 8 - 3. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IM PUGNED ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IS LIABLE TO BE QUASHED HAVING BEEN PASSED IN VIOLATION OF SET PROCEDURE IN LAW IN ASMUCH AS THAT NO REGULAR ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS PENDING WITHIN THE MEANING OF 2 ND PROVISO TO SECTION 153A (1) OF THE ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND SUSTAINING IMPUGNED ADDITION OF RS. 1 7,48,083/- ON ACCOUNT OF DIVIDEND INCOME FROM SRILANKAN COMPANY, WHEN THE SAME IS WHOLLY UNWARRANTED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CONCESSIONAL RATE OF TAX U/S. 115BBD OF THE ACT ON THE DIVIDEND RECEIVED FROM SRILANKAN COMPANY WHEN THE SAME IS LEGALLY AVAILABLE IN THE CASE OF THE APPELLANT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING T HE CONTENTION OF THE APPELLANT AND NOT ALLOWING CREDIT OF TAX PAID IN SR ILANKA ON DIVIDEND UNDER FOREIGN TAX CREDIT SYSTEM OF DTAA, WHEN SHE O UGHT TO HAVE ALLOWED SUCH RELIEF. 9. ASSESSEE VIDES APPLICATION/LETTER DATED 01/12/20 18 AMENDED THE GROUND NO. 2 IN ITA NO.84/AHD/2018 FOR A.Y. 2013-14 WHICH IS REPRODUCED AS UNDER: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE IMPUGNED ASSESSMENT ORDER DATED 23.12.2016 PASSED U/S.153A R.W.S. 143(3) OF THE ACT IS FRAMED BEYOND THE TIME LIMIT FOR COMPLETION OF ASSESSMENT U/S.153A, AS PRESCRIBED IN CLAUSE (A) OF SUB-SEC. (1) OF SECTION 153B OF THE ACT, WHICH IN THE INSTANT CASE WAS 31.03.2016. 10. THE PRELIMINARY ISSUE TO BE DECIDED IN ALL THES E APPEALS IS AS TO WHETHER IN RESPECT OF UNABATED ASSESSMENTS (NO PEND ING PROCEEDINGS) AS 4 - 9 - ON THE DATE OF SEARCH, THE LD. AO COULD FRAME THE S EARCH ASSESSMENT U/S 153A OF THE ACT BY MAKING CERTAIN ADDITIONS WITHOUT ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. 11. THE BRIEF FACTS APPEARING, IN THIS CASE, ARE TH AT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED U/S 132 OF THE ACT IN THE RUBAMIN GROUP OF CASES ON 26.04.2013 WHICH ALSO INCLUDES TH E PREMISES OF ASSESSEE. AS A RESULT OF THE SEARCH THE SIX ASSESSM ENT YEARS OF THE ASSESSEE WERE RE-OPENED. 11.1 THE DETAILS OF NOTICES ISSUED BY THE REVENUE A ND RETURNS FILED BY THE ASSESSEE ARE AS UNDER: ASSESSMENT YEAR DATE OF ORIGINAL RETURN OF FILING LAST DATE TO ISSUE NOTICE U/S 143(2) DATE OF ISSUANCE OF NOTICE U/S 153A(A) DATE OF RETURN FILING IN RESPONSE TO NOTICE U/S 153A(A) 2008-09 29/09/2008 30/09/2009 21/10/2013 09/12/2013 2009-10 24/09/2009 30/09/2010 21/10/2013 09/12/2013 2010-11 25/09/2010 30/09/2011 21/10/2013 09/12/2013 2011-12 28/09/2011 30/09/2012 21/10/2013 09/12/2013 2012-13 15/09/2012 30/09/2013 21/10/2013 09/12/2013 2013-14 29/09/2013 30/09/2014 21/10/2013 09/12/2013 11.2 IT IS EVIDENT FROM THE ABOVE TABLE THAT ON THE DATE OF SEARCH, I.E., 26/04/2013, FIRST FOUR ASSESSMENT YEARS, I.E., 2008 -09 TO 2011-12 BECAME UNABATED. HOWEVER, THE TIME LIMIT FOR THE ISSUANCE OF NOTICE UNDER SECTION 143(2) IN RESPECT TO THE ASSESSMENT YEAR 20 12-13, & 2013-14 WAS NOT EXPIRED AT THE TIME OF THE SEARCH. THEREFORE, T HEY GOT ABATED. 4 - 10 - 12. THE LD. AR HAS CHALLENGED THE ASSESSMENT PROCEE DINGS FRAMED UNDER SECTION 153A OF THE ACT IN THE GROUND NO. 1 & 2 FOR ALL THE ASSESSMENT YEAR. THE LEARNED AR OBJECTED THE ADDITI ONS MADE BY THE AO IN ALL THE ASSESSMENT YEARS, I.E., 2008-09 TO 2013- 14 WHICH REPRESENTS THE ITEMS OF THE REGULAR ASSESSMENTS. 12.1 AS PER THE AR, THERE WAS NO INCRIMINATING MATE RIAL FOUND DURING A SEARCH IN RESPECT OF ALL THE ASSESSMENT YEARS AS DI SCUSSED ABOVE. THEREFORE NO ADDITION CAN BE MADE IN THE PRESENT CA SE. HENCE ALL THE ASSESSMENTS FRAMED U/S 153A/143(3) BY THE AO IS NOT VALID IN VIEW OF THE NON-AVAILABILITY OF THE INCRIMINATING MATERIALS . 13. THE ASSESSMENTS WERE FRAMED U/S 153A/143(3) OF THE ACT AFTER MAKING THE FOLLOWING ADDITIONS/DISALLOWANCES AS DET AILED UNDER : SI. NO. ASSESSMENT YEAR AMOUNT (RS.) REMARKS 1 2008-09 RS.17,48,083/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA 2 2009-10 RS.44,68,971/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA RS. 2,61,00,000/- ON ACCOUNT OF INVESTMENT IN SHARE S 3 2010-11 RS. 43,12,185/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA 4 2011-12 RS.18,28,711/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA 5 2012-13 RS.44,68,971/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA 6 2013-14 RS.17,48,083/- -ON ACCOUNT OF DIVIDEND INCOME FROM A COMPANY BASED IN SRI LANKA 13.1 THE LD. AR FURTHER ARGUED IN RESPECT OF ALL TH E SIX ASSESSMENT YEARS IN WHICH SEARCH TOOK PLACE, BEING UNABATED/ ABATED ASSESSMENTS, THE LD. 4 - 11 - AO HAS MADE DISALLOWANCE/ ADDITION, FOR WHICH ABSOL UTELY NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF THE SEARCH. HENCE HE PRAYED FOR DELETION OF DISALLOWANCE MADE B Y THE AO. 14 IN THIS REGARD, HE PLACED HIS RELIANCE ON THE DE CISIONS OF GUJARAT HIGH COURT IN THE CASE OF SUNRISE FINLEASE PVT. LTD . IN TAX APPEAL NO 936/937 OF 2017. 15. THE LD. DR, ON THE OTHER HAND, ARGUED VEHEMENTL Y ON THE VALIDITY OF THE ASSESSMENT COMPLETED U/S 153A/143(3) OF THE ACT PLACING RELIANCE ON THE ORDERS OF THE SUBORDINATE AUTHORITIES. 15.1 THE LD. DR IN RELATION TO THE AY 2009-10 ALSO REQUESTED THAT THE MATTER FOR THE VALUATION OF SHARES CAN BE SET ASIDE TO AO FOR FRESH VERIFICATION. 16. WE HAVE PERUSED THE CASE RECORD, ANALYZED THE F ACTS AND CIRCUMSTANCES OF THE CASE AND HEARD THE RIVAL CONTE NTIONS. WE FIND THAT THE LEGAL ISSUE QUESTIONING THE VALIDITY OF THE SEC TION 153A ASSESSMENT AND ADDITIONS MADE THEREON, IN RESPECT OF ALL THE A SSESSMENT YEARS IN THE ABSENCE OF INCRIMINATING MATERIALS WAS RAISED FOR T HE FIRST TIME BEFORE THIS TRIBUNAL. 16.1 WE FIND THAT THE LEGAL GROUNDS RAISED BY THE A SSESSEE GO INTO THE VERY CRUX OF THE MATTER AND DOES NOT INVOLVE ANY FR ESH INVESTIGATION OF FACTS. HENCE WE DEEM IT FIT AND PROPER TO ADMIT THE SAME EVEN THOUGH THE 4 - 12 - LOWER AUTHORITIES HAVE NOT APPRECIATED IN TOTALITY. RELIANCE IN THIS REGARD IS PLACED IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (SC). 16.2 WE FIND THAT IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE, WHETHER ASSESSMENT COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF AN Y INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. TH E SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASSESSME NT YEAR FROM 2008-09 TO 2011-12 FALLS UNDER THE AMBIT OF UNABATED ASSESS MENT AS ON THE DATE OF SEARCH. THERE IS NO DIFFERENTIATION AS FOUND IN THE INTENT OF THE LEGISLATURE TO DIFFERENTIATE WHETHER THE ASSESSMENTS WERE ORIGI NALLY FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. THEREFORE, IF A NY INCRIMINATING MATERIAL IS NOT FOUND DURING THE COURSE OF SEARCH R ELATED TO THOSE CONCLUDED YEARS, THE ACT DOES NOT CONFER ANY POWER ON THE LD. AO TO DISTURB THE FINDING GIVEN THEREON AND INCOME DETERM INED THEREON AS FINALITY HAS ALREADY BEEN REACHED AND NO PROCEEDING S WERE PENDING ON THE DATE OF SEARCH. 17. WE FIND THAT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT CENTRAL-III VS. KABUL CHAWLA REPORTED IN 380 ITR 573 (DEL) HAS DULY CONSIDERED VARIOUS DECISIONS AND HELD AS U NDER : 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, REA D WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLA INED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT E MERGES IS AS UNDER: 4 - 13 - 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 PERSO N SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN W HICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F 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 RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOT AL 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 D ISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BR OUGHT 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 O F THE SEARCH, OR OTHER POST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A O WHICH CAN BE RELATED TO THE EVID ENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATE RIAL.' V. IN ABSENCE OF ANY INC RIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REAS SESSMENT CAN BE MADE . THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE T O 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 J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UND ER 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 A O. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASI S OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR P ROPERTY 4 - 14 - DISC OVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODU CED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF OR IGINAL ASSESSMENT. 18. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL GU JARAT HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SAUMY A CONSTRUCTION PVT. LTD. REPORTED IN 387 ITR 529 HAS DECIDED THE ISSUE IN FAVOR OF THE ASSESSEE BY OBSERVING AS UNDER: 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS WELL SETTLED AS HELD BY THE SUP REME COURT IN A CATENA OF DECISIONS THAT THE HEADING OF THE SECTION CAN BE REGARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECTION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLEAR, THEN THE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEADING OF SECTION 153, THE INTENTION OF THE LEGISLATURE IS CL EAR VIZ., TO PROVIDE FOR ASSESSMENT IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF THE PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEAR CH OR REQUISITION, IT GOES WITHOUT SAYING THAT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR REQUISITION. IN OTHER WORDS, THE ASSESSME NT SHOULD BE CONNECTED WITH SOMETHING FOUND DURING THE SEARCH OR REQUISITION, VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED IN COME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION (1) OF SECTIO N 153A OF THE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISITION, THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNIS H RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVAN T TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITIO N IS MADE, ANY ADDITION OR DISALLOWANCE CAN BE MADE ONLY ON THE BA SIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISITION. IN CASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH CO URT IN THE CASE OF JAI STEEL (INDIA) (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. IN CASE WHERE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFICER CAN PASS ASSESSMENT ORDERS FOR EA CH OF THE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED B Y THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT U NDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOP E AND AMBIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESS ING OFFICER COULD 4 - 15 - HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. 19. IN RESPECT OF ABATED ASSESSMENTS, FRESH ASSESSM ENTS ARE TO BE FRAMED BY THE AO U/S 153A OF THE ACT WHICH WOULD HA VE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME BY CONSIDERIN G ALL THE ASPECTS, WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DO NOT HAVE ANY RELEVANCE. HOWEVER, IN RESPECT OF UNABATED ASSESSME NTS, THE LEGISLATURE HAS CONFERRED POWERS ON THE LD. AO TO FOLLOW THE AS SESSMENTS ALREADY CONCLUDED UNLESS INCRIMINATING MATERIALS ARE FOUND IN THE COURSE OF THE SEARCH. 19.1 THAT FOR THE REASONS STATED ABOVE AND ON THE BASIS OF VARIOUS JUDICIAL PRONOUNCEMENTS, WE HOLD THAT THE DISALLOWA NCES MADE FOR THE ASSESSMENT YEARS I.E. 2008-09, 2009-10, 2010-11 & 2 011-12, WHICH WERE UNABATED/CONCLUDED ASSESSMENTS AS ON DATE OF S EARCH CANNOT BE MADE IN THE SEARCH ASSESSMENTS IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH AND ACCORDIN GLY ALL THOSE ADDITIONS ARE DIRECTED TO BE DELETED. SINCE THE LEGAL ISSUES ARE ADDRESSED, WE REFRAIN FROM GIVING OUR FINDINGS ON THE MERITS OF DISALLOWA NCES UNDER THE PROVISIONS OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEARS I.E. 2008-09, 2009-10, 2010-11 & 2 011-12, ARE ALLOWED. 4 - 16 - 20. COMING TO THE ITA NO. 83/AHD/2018 21. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT HE HAD BEEN INSTRUCTED NOT TO PRESS GROUND NO. 1 AND 2 . THEREFORE WE DISMISS THE SAME AS NOT PRESSED. THE GROUND NO. 3 R AISED IN THE ORIGINAL GROUNDS OF APPEAL HAS BEEN SUBSTITUTED AS DISCUSSED ABOVE WHICH BEARS THE RESEMBLANCE WITH THE ORIGINAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE. AS SUCH WE FIND THAT THE ISSUE RAISED IN THE AMENDED GROUND OF APPEAL IS ARISING FROM THE ORDER OF AUTHORITIES BEL OW AND THERE IS NO NEED TO MAKE ANY REFERENCE TO ANY ADDITIONAL DOCUMENTS. THE LEARNER DR ALSO DID NOT RAISE ANY OBJECTION ON THE AMENDED GROUND F ILED BY THE ASSESSEE. HENCE WE ADMIT THE SAME AND PROCEED TO ADJUDICATE T HE ISSUE. 22. THE ISSUE RAISED BY THE ASSESSEE IN HER AMENDED GROUND NO. 3 IS THAT THE LEARNED CIT-A ERRED IN CONFIRMING THE ORDE R OF THE AO ON ACCOUNT THE OF DIVIDEND INCOME. 22.1 THE LD. AR BEFORE US CONTENDED THAT THERE WAS NO DIVIDEND INCOME RECEIVED DURING THE ASSESSMENT YEAR 2012-13. THEREF ORE, THERE IS NO QUESTION FOR MAKING THE ADDITION OF THE SAME IN THE YEAR UNDER CONSIDERATION. 23. ON PERUSAL OF THE ORDER OF LD. CIT(A), WE FIND THAT THIS ISSUE WAS ALSO RAISED BEFORE FIRST APPELLATE AUTHORITY WHO PR OVIDED DIRECTION TO THE AO TO VERIFY WHETHER THERE IS ANY DIVIDEND INCOME R ECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. 4 - 17 - 23.1 THUS, BEFORE ADVERTING THE ISSUE WHETHER THE D IVIDEND INCOME IS TAXABLE IN THE YEAR UNDER CONSIDERATION, WE FIND PE RTINENT TO NOTE THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT T HERE WAS NO DIVIDEND INCOME EARNED BY THE ASSESSEE IN THE YEAR UNDER CON SIDERATION. IF IT IS SO, THEN THE QUESTION OF MAKING THE ADDITION OF THE DIV IDEND INCOME TO THE TOTAL INCOME OF THE ASSESSEE DOES NOT ARISE. ACCORD INGLY, WE ARE OF THE VIEW THAT THE ENTIRE EXERCISE TO ADJUDICATE THE ISS UE WHETHER DIVIDEND INCOME IS TAXABLE OR NOT WILL BE FUTILE IN THE EVEN T OF NO DIVIDEND INCOME RECEIVED BY THE ASSESSEE IN THE YEAR UNDER CONSIDER ATION. 23.2 WE ALSO NOTE THAT THE ITAT HAS ALSO DIRECTED T HE LD. DR VIDE ORDER SHEET DATED 5-9-2018 TO FIND OUT WHETHER THE ASSESS EE RECEIVED DIVIDEND INCOME DURING THE YEAR. BUT THE LD. DR FAILED TO BR ING ANYTHING ON RECORD ON THIS ASPECT TILL THE DATE OF HEARING. THEREFORE WE PROCEED TO ADJUDICATE THE SAME ON THE BASIS OF AVAILABLE RECORDS. 23.3 IN THIS REGARD, WE NOTE THAT M/S NAVAM LANKA LIMITED FOR THE YEAR ENDING 31 ST MARCH 2012, HAS DECLARED THE DIVIDEND ON 27/09/201 2, I.E. IN NEXT FINANCIAL YEAR (2012-13) AS EVIDENT FR OM THE WARRANT PLACED ON PAGE 78 OF THE PAPER BOOK. THE RELEVANT EXTRACT READS AS UNDER: 4 - 18 - NAVAM LANKA LIMITED PLOT 27 VV MEPZ. MIRIGAMA EXPORT PROCESSING ZONE. M IRIGAMA, GAMPAHA MRS. ASHA MITAL, 126, SHAKTI NAGAR- -9,RAJASTHAN, LOCAL : PLOT NO. 27 A ' MEPZ, MIRIGAMA PROCESS EXPORT PROCESSING ZONE MIRIGAMA DATE 27/09/2012 WARRANT NO. 25I12TS002773 SHARES 78.403 DEAR SIR/MADAM, FINAL-DIVIDEND OF RS.55 PER SHARE FOR THE YEAR ENDE D 31 ST (MARCH 2012 WE HAVE PLEASURE IN FORWARDING A WARRANT FOR THE AB OVE DIVIDEND ISSUE ON THE ORDINARY SHARES HELD BY YOU AS SHOWN BELOW. PLEASE ENSURE THAT YOU RETAIN THIS NOTICE CAREFULLY FOR YOUR INCOME TAX PURPOSES AS DUPLICATES CANNOT BE ISSUED. ENDORSEMENT OF THE WARRANT WILL BE SUFFICIENT RECEI PT. WE HEREBY CERTIFY THAT DIVIDEND TAX SHOWN .IN CAGE 2 (B) HAS BEEN PAID TO THE COMMISSIONER GENERAL OF INLAND REVENUE. NOTE: NET DIVIDEND IS THE EQUIVALENT OF (A)- (B) NAVAM LANKA LIMITED .. SECRETARIES ESJAY CORPORATE SERVICES (PRIVATE) LIMITED (A) GROSS DIVIDEND (B) DIVIDEND TAX (RS) (C) NET DIVIDEND EXEMPT NIL NIL NIL 1 TAXABLE 4,312,165,00 431.217.00 3.880.949,00 2 TOTAL 4,312.165.00 431.217,00 3.880.949,00 3 4 - 19 - 23.4 SIMILARLY, WE ALSO FIND THAT THE SAID DIVIDEND WAS RECEIVED IN THE FY 2012-13 IN THE BANK ON 16-10-2012 AS EVIDENT FRO M THE BANK STATEMENT PLACED ON PAGE 63 OF THE PAPER BOOK. 23.5 FROM THE ABOVE, IT IS CLEAR THAT THE DIVIDEND INCOME WAS NOT RECEIVED BY THE ASSESSEE IN THE YEAR ENDING 31-3-20 12 AND ACCORDINGLY THE SAME WAS NOT LIABLE TO BE TAXED IN THE YEAR UND ER CONSIDERATION, I.E. AY 2012-13. 23.6 BESIDES THE ABOVE, WE ALSO NOTE THAT THE ASSES SEE HAS DECLARED THE DIVIDEND INCOME PERTAINING TO THE ASSESSMENT YEAR 2 012-13 IN THE ASSESSMENT YEAR 2013-14 AMOUNTING TO 15,29,220.00 WHICH WAS DULY ACCEPTED BY THE REVENUE. 23.7 WE ALSO NOTE THAT AO HAS ENQUIRED THE CREDIT E NTRIES IN THE BANK BY ISSUING A COMMON NOTICE U/S 142(1) WHEREIN HE ASKED ASSESSEE TO FURNISH THE DETAILS OF ENTRIES OF DIVIDEND REFLECTING FOR E ACH YEAR. THE RELEVANT NOTICE U/S 142(1) IS PLACED ON PAGES 38 TO 42 OF TH E PAPER BOOK. 23.8 FURTHER, IN REPLY OF THE SAME NOTICE ASSESSEE SUBMITTED DETAILS OF EACH YEAR DIVIDEND RECEIVED. HOWEVER, EVEN IN REPLY ASSESSEE DID NOT SUBMIT DETAIL OF ANY DIVIDEND FOR THE YEAR ENDING 3 1 ST MARCH 2012. THE RELEVANT REPLY OF THE ASSESSEE FOR THE AFORESAID NO TICE IS PLACED ON PAGES 43 TO 49 OF PAPER BOOK. ONCE ASSESSEE CONTENDED THA T SHE HAS NOT 4 - 20 - RECEIVED ANY DIVIDEND FOR THE YEAR AND SUBMITTED AL L THE RELEVANT DETAILS THE ONUS WAS ON AO TO ESTABLISH THAT ASSESSEE HAD R ECEIVED DIVIDEND INCOME. 23.9 THE CONTROVERSY ALSO ARISES REGARDING THE AMOU NT DETERMINED BY THE AO FOR THE DIVIDEND INCOME IN THE YEAR UNDER CO NSIDERATION. IN THIS REGARD WE FIND THAT THE AO HAS TAKEN THE AMOUNT OF DIVIDEND I.E. 43,12,165 FOR THE YEAR ENDING 31-3-2012 AS RECORDED IN THE DIVIDEND WARRANT DATED 27-9-2012 WHICH WAS MENTIONED IN SRI- LANKAN CURRENCY. THUS THE AO HAS ALSO ERRED IN TREATING THE AMOUNT R ECORDED IN SRI-LANKAN CURRENCY IN DIVIDEND WARRANT AS DIVIDEND INCOME OF THE ASSESSEE. THE COPY OF THE DIVIDEND WARRANT HAS ALREADY BEEN REPRO DUCED ABOVE. 24. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT A DDITION MADE ON ACCOUNT OF DIVIDEND INCOME FOR THE YEAR UNDER CONSI DERATION IS ON WITHOUT ANY BASIS AND DOCUMENTARY EVIDENCE. 24.1 ONCE WE HAVE HELD THAT THE ASSESSEE HAS NOT RE CEIVED ANY DIVIDEND INCOME IN THE YEAR UNDER CONSIDERATION, THE OTHER G ROUNDS OF APPEAL RAISED BY THE ASSESSEE BECOME ACADEMIC AND DO NOT R EQUIRE ANY SEPARATE ADJUDICATION. ACCORDINGLY, WE DIRECT THE AO TO DELE TE THE ADDITION. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 25. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. 4 - 21 - 26. NOW COMING TO THE ITA NO. 84/AHD/2018 FOR THE A SSESSMENT YEAR 2013-14. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAD BEEN INSTRUCTED NOT TO PRESS GROUND NO. 1 AND 3. TH EREFORE WE DISMISS THE SAME AS NOT PRESSED. THE GROUND NO. 2 RAISED IN THE ORIGINAL GROUNDS OF APPEAL HAS BEEN SUBSTITUTED AS DISCUSSED ABOVE WHIC H BEARS THE RESEMBLANCE WITH THE ORIGINAL GROUNDS OF APPEAL RAI SED BY THE ASSESSEE. AS SUCH WE FIND THAT THE ISSUE RAISED IN THE AMENDE D GROUND OF APPEAL IS ARISING FROM THE ORDER OF AUTHORITIES BELOW AND THE RE IS NO NEED TO MAKE ANY REFERENCE TO ANY ADDITIONAL DOCUMENTS. THE LEAR NER DR ALSO DID NOT RAISE ANY OBJECTION ON THE AMENDED GROUND FILED BY THE ASSESSEE. HENCE WE ADMIT THE SAME AND PROCEED TO ADJUDICATE THE ISS UE. 26.1 DURING THE TIME OF HEARING THE BENCH NOTICED T HAT THE AO PASSED THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2013-1 4 ON 23 RD DECEMBER 2016 UNDER SECTION 153A R.W.S. 143(3) OF THE ACT. 26.2 THE TIME LIMIT FOR COMPLETING THE ASSESSMENT U NDER SECTION 153A IS GIVEN UNDER SECTION 153B OF THE ACT. THE RELEVAN T EXTRACT OF SECTION 153B READS AS UNDER: TIME-LIMIT FOR COMPLETION OF ASSESSMENT UNDER SECT ION 153A . 153B. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 53 , THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT, (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WIT HIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B) OF 53 [SUB-SECTION (1) OF] SECTION 153A , 4 - 22 - WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SEC TION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED; (B) IN RESPECT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A , WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATI ONS FOR SEARCH UNDERSECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED : 26.3 NOW AS PER THE ABOVE PROVISION IT IS CLEAR THA T THE MAXIMUM TIME LIMIT AS PER SECTION 153B TO COMPLETE THE ASSESSMEN T FOR THE ASSESSMENT YEAR 2013-14 WAS 31/03/2016. 26.4 HOWEVER, IT IS EVIDENT FROM THE ASSESSMENT ORD ER THAT LD.AO HAS PASSED THE ORDER ON 23/12/2016 WHICH IS BEYOND THE DUE DATE. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE LD. DR, HOWEVER, HE ALSO COULD NOT BRING ANYTHING RECORD TO JUSTIFY THE DELA Y IN PASSING THE ASSESSMENT ORDER AS PER THE TIME LIMIT GIVEN UNDER THE STATUTE. 26.5 THEREFORE AS PER THE ABOVE, AS THE AO COULD NO T PASS THE ASSESSMENT ORDER UNDER THE GIVEN TIME LIMIT, THE OR DER PASSED BY THE AO IS INVALID AND BAD IN THE EYES OF THE LAW. ACCORDIN GLY, WE ALLOW THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON LEGAL G ROUND AND REFRAIN OURSELVES TO ADJUDICATE THE ISSUE RAISED ON OTHER G ROUND AND ON THE MERIT. 4 - 23 - 27. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 12/12/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; YKS[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; (MADHUMITA ROY) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 12/12/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-13, AHMEDABAD. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 30/10/2018 1. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 12/12/2018 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER