M/s. Indus Holidays & Tours India Pvt. Ltd., Bhopal V. THE DCIT (CENTRAL)-2, Bhopal

ITSSA 79/IND/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0290 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 10-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: GIRISH AGRAWAL
• Keywords: Rejection of books of accounts; Unexplained investment; Business income; Loose papers; Document seized; Peak credit; Difference of opinion; Tax effect; Documents seized; Set aside
• Section: 143(3); 153A; 234B; 143(1); 68; 145; 56; 132; 139

Judgement Text

INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA(SS) NO.79 TO 84/IND/2017 & ITA NO.269/IND/2017 ASSESSMENT YEARS 2007-08 TO 2013-14 ITA(SS) NO.134 & 135/IND/2017 & ITA NO.313/IND/201 7 ASSESSMENT YEARS 2011-12 TO 2013-14 M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD, IBD CENTRE POINT, B-BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL VS. DCIT (CENTRAL) - II, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO.A AACI8323B ACIT, C ENTRAL - II, BHOPAL VS. M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD, IBD CENTRE POINT, B- BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO. AAACI8323B INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 2 ITA(SS) NO.85 TO 89/IND/2017 & ITA NO.270/IND/2017 ASSESSMENT YEARS 2007-08 TO 2010-11, 2011-12 & 2013 -14 ITA(SS) NO.121 TO 123/IND/2017 ASSESSMENT YEARS 2007-08, 2009-10, 2010-11 ITA(SS) NO.120/IND/2017 ASSESSMENT YEARS 2010-11 SMT. NEETA BHADAURIA , IBD CENTRE POINT, B-BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL VS. DCIT ( CENTRAL ) - II , BHOPAL (APPELLANT) (RESPONDENT ) PAN NO. AGRPB8464E SMT. SUNITA NIGAM, IBD CENTRE POINT, B-BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL VS. DCIT (CENTRAL) - II, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO.ABKPM1173F M/S. PURPLE VACATIONS PVT. LTD, IBD CENTRE POINT, B-BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL VS. DCIT (CENTRAL) - II, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO.AAFCP2518Q INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 3 ITA(SS) NO.90 TO 95/IND/2017 & ITA NO.271/IND/2017 ASSESSMENT YEARS 2007-08 TO 2013-14 REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI GIRISH AGRAWAL AND MS. NISHA LAHOTI, ADVOCATES DATE OF HEARING 17 .0 1 .2019 DATE OF PRONOUNCEMENT 28 .0 3 .2019 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED BUNCH OF APPEALS FILED AT THE I NSTANCES OF THE ASSESSEES PERTAINING TO ASSESSMENT YEAR 2007-08 TO 2013-14 AND REVENUES APPEAL PERTAINING TO ASSESSMENT YEARS 201 1-12 TO 2013- 14 IN THE CASE OF INDUS HOLIDAY & TOURS INDIA PVT. LTD ARE DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TA X (APPEALS)-3 (IN SHORT LD.CIT(A)], BHOPAL DETAILED AS UNDER; SHRI AJAY BHADAURIA, IBD CENTRE POINT, B-BLOCK. 1 ST FLOOR, NEAR MAHINDRA PETROL PUMP, BAWADIA KALA, BHOPAL VS. DCIT (CENTRAL) - II, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO.A EXPB7025F INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 4 NAME OF ASSESSEE A SSESSM ENT YEAR DATE OF CIT ORDER DATE OF A.O ORDER ORDER PASSED U/S M/S INDUS HOLIDAYS & TOURS INDIA PVT. LTD 2007 - 08 TO 2013-14 14.02.2017 23.03.2015 153A R.W.S. 143(3) SMT. NEETA BHADAURIA 2007 - 08 TO 2013-14 15.02.2017 16.03.2015 - DO - SMT. SUNITA NIGAM 2007 - 08, 2009-10, 2010-11 21.03.2017 31.12. 2014 - DO - M/S PURPLE VACATIONS PVT. LTD 2010 - 11 06.03.2017 28.01.2015 - DO - SHRI AJAY BHADAURIA 2007 - 08 TO 2013-14 15.12.2017 24.03.2015 - DO - 2. AS THE ISSUES RAISED IN THESE APPEALS ARE COMMON, THEREFORE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 3. FIRST WILL TAKE UP THE LEAD CASE I.E. M/S. INDUS H OLIDAYS & TOURS INDIA PVT. LTD IN WHICH ASSESSEE HAS FILED AP PEAL FOR ASSESSMENT YEARS 2007-08 TO 2013-14 AND THE REVENUE HAS FILED CROSS APPEAL FOR 2011-12 TO 2012-13. 4. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORD S ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN TH E BUSINESS OF INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 5 TOURIST AGENT AND CONTRACTORS TO FACILITATE TRAVELL ING BY AIR, ROAD AND SEA. SINCE, THE VARIOUS CONCERNS AND INDIVIDUALS A RE INTER CONNECTED AND HAVE BUSINESS ASSOCIATIONS, THEY HAVE BEEN PUT TOGETHER UNDER ONE COMMON NAME INDUS GROUP. RETUR N OF INCOME FOR RESPECTIVE ASSESSMENT YEARS WERE FILED. SEARC H U/S 132 OF THE ACT WERE CARRIED OUT ON 30.11.2012 AT VARIOUS PREMI SES OF THE GROUP. NOTICES U/S 153A WAS ISSUED TO THE ASSESSEE S TO FILE RETURN OF INCOME FOR THE ABOVE ASSESSMENT YEARS AND THE SA ME WERE FILED U/S 139 OF THE ACT. THEREAFTER, A CONSOLIDATED ASSE SSMENT FOR ASSESSMENT YEAR 2007-08 TO 2013-14 WERE PASSED U/S 153A/143(3) OF THE ACT DATED 23.03.2015, MAKING SUBSTANTIAL ADD ITIONS AGAINST WHICH ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) W HO PARTLY CONFIRMED THE ADDITION. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A) BOTH THE ASSE SSEE AND REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL. SOME AP PEALS OF THE REVENUE WERE DISMISSED FOR LOW TAX EFFECT AND THE A SSESSEE IS IN APPEAL FOR ASSESSMENT YEAR 2007-08 TO 2013-14 AND T HE REVENUES APPEALS FOR ADJUDICATION BEFORE US ARE FOR ASSESSME NT YEAR 2011-12 TO 2013-14. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 6 6. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; I. M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD ITA(SS) NO.79 TO 84/IND/2017 ASSESSMENT YEAR 2007-08 TO 2013-14 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF BUSINESS RECEIPTS OF RS.137815 AND, T HEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, T HE ASSESSMENT IS BAD IN LAW HENCE BE QUASHED AND THE ADDITION OF RS. 2756 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UNJUSTIFIED AND, THEREFOR E, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UN LAWFUL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT T HE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE KINDLY ACCEPTED AND THE ADDITION OF RS.2756 AS SUST AINED BY CIT(A) BE KINDLY DELETED. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 7 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.137 815 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITIO N OF RS.2756AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2008-09 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF BUSINESS RECEIPTS OF RS.142324 AND, T HEREFORE, IS ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, T HE ASSESSMENT IS BAD IN LAW HENCE BE QUASHED AND THE ADDITION OF RS. 2846 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UNJUSTIFIED AND, THEREFOR E, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UN LAWFUL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT T HE PROVISIONS OF INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 8 SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE KINDLY ACCEPTED AND THE ADDITION OF RS.2846 AS SUST AINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.142 324 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITIO N OF RS.2846 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2009-10 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN THE ORDER A RE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U /S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSESSMENT WERE PENDI NG ON THE DATE OF INITIATION OF SEARCH AND ALSO IN THE SEARCH, NO INC RIMINATING MATERIAL WAS FOUND SUGGESTING THE SUPPRESSED INCOME IN THE NATUR E OF BUSINESS RECEIPTS OF RS.4916388 AND, THEREFORE, IS ABSENCE OF SUCH IN CRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD I N LAW HENCE BE QUASHED AND THE ADDITION OF RS.98327 AS SUSTAINED B Y CIT(A) IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 9 CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UNLAWF UL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT THE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE K INDLY ACCEPTED AND THE ADDITION OF RS.98327 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.491 6388 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITION OF RS .98327 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF BUSINESS RECEIPTS OF RS.5146768 AND, THEREFORE, IS ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVI DENCE, THE ASSESSMENT IS BAD IN LAW HENCE BE QUASHED AND THE A DDITION OF INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 10 RS.102935 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UN JUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UN LAWFUL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT T HE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE KINDLY ACCEPTED AND THE ADDITION OF RS.102935 AS SU STAINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.514 6768 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITIO N OF RS.102935 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2011-12 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 11 INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF BUSINESS RECEIPTS OF RS.8211907 AND, THEREFORE, IS ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVI DENCE, THE ASSESSMENT IS BAD IN LAW HENCE BE QUASHED AND THE A DDITION OF RS.164238 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UN JUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UN LAWFUL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT T HE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE KINDLY ACCEPTED AND THE ADDITION OF RS.164238 AS SU STAINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.821 1907 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITIO N OF RS.164238 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2012-13 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN THE ORDER A RE INCORRECT AND UNLAWFUL. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 12 2.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U /S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSESSMENT WERE PENDI NG ON THE DATE OF INITIATION OF SEARCH AND ALSO IN THE SEARCH, NO INC RIMINATING MATERIAL WAS FOUND SUGGESTING THE SUPPRESSED INCOME IN THE NATUR E OF BUSINESS RECEIPTS OF RS.7361630 AND, THEREFORE, IS ABSENCE OF SUCH IN CRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD I N LAW HENCE BE QUASHED AND THE ADDITION OF RS.147232 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UNLAWF UL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT THE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE K INDLY ACCEPTED AND THE ADDITION OF RS.147232 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.736 1630 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITION OF RS .147232 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2013-14 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 13 RECORDED IN MAKING VARIOUS ADDITIONS IN THE ORDER A RE INCORRECT AND UNLAWFUL. 2.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U /S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSESSMENT WERE PENDI NG ON THE DATE OF INITIATION OF SEARCH AND ALSO IN THE SEARCH, NO INC RIMINATING MATERIAL WAS FOUND SUGGESTING THE SUPPRESSED INCOME IN THE NATUR E OF BUSINESS RECEIPTS OF RS.7605474 AND, THEREFORE, IS ABSENCE OF SUCH IN CRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD I N LAW HENCE BE QUASHED AND THE ADDITION OF RS.152109 AS SUSTAINED BY CIT(A) IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES WITH REGA RD THE COMPLETENESS AND CORRECTNESS OF THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS ARE WHOLLY WRONG, UNLAWF UL AND INJUDICIOUS, HENCE BE QUASHED AND IT BE HELD THAT THE PROVISIONS OF SECTION 145 ARE NOT APPLICABLE. THE INCOME AS SHOWN IN THE ACCOUNT BE K INDLY ACCEPTED AND THE ADDITION OF RS.152019 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES THAT THER E IS SUPPRESSION OF RECEIPTS (TURNOVER) IN THE RELEVANT YEAR WAS RS.760 5474 ARE NEITHER LAWFUL NOR JUSTIFIED HENCE BE QUASHED. THE ADDITION OF RS .152109 AS SUSTAINED BY CIT(A) BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED 7. REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 14 II. ITA(SS) NO.134 & 135/IND/2017 & ITA NO.313/IND/201 7 ASSESSMENT YEAR 2011-12 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION MADE BY THE A.O OF RS.80,4 7,669/- ON ACCOUNT OF SUPPRESSION OF RECEIPTS WITHOUT APPRECIATING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O DURING ASSESSMENT PRO CEEDINGS. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT( APPEALS) ERRED IN ESTIMATING NET PROFIT @2% ON SUPPRESSED RECEIPTS IN ABSENCE OF ANY EVIDENCE OF EXPENDITURE AGAINST THE SUPPRESSED RECE IPTS. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINALLY HEARD FOR DISPOSAL. ASSESSMENT YEAR 2012-13 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF RS.72, 14,398/- ON ACCOUNT OF SUPPRESSION OF RECEIPTS WITHOUT APPRECIATING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O DURING ASSESSMENT PRO CEEDINGS. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT( APPEALS) ERRED IN ESTIMATING NET PROFIT @2% ON SUPPRESSED RECEIPTS IN ABSENCE OF ANY EVIDENCE OF EXPENDITURE AGAINST THE SUPPRESSED RECE IPTS. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINALLY HEARD FOR DISPOSAL. ASSESSMENT YEAR 2013-14 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF RS.74, 53,365/- ON ACCOUNT OF SUPPRESSION OF RECEIPTS WITHOUT APPRECIA TING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O DURING ASSE SSMENT PROCEEDINGS. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 15 2. ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT( APPEALS) ERRED IN ESTIMATING NET PROFIT @2% ON SUPPRESSED RECEIPTS IN ABSENCE OF ANY EVIDENCE OF EXPENDITURE AGAINST THE SUPPRESSED RECE IPTS. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND O R ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINA LLY HEARD FOR DISPOSAL. 8. FROM PERUSAL OF THE GROUNDS RAISED BY BOTH THE PAR TIES, WE OBSERVE THAT THE ASSESSEE HAS RAISED TWO COMMON ISS UES FIRSTLY CHALLENGING THE ADDITION FOR ASSESSMENT YEAR 2007-0 8 TO 2011-12 TAKING A PLEA THAT NO INCRIMINATING MATERIAL WAS FO UND DURING THE COURSE OF SEARCH AND THE ADDITIONS FOR ASSESSMENT Y EAR 2007-08 TO 2011-12 NEEDS TO BE DELETED AS THESE ASSESSMENT YEA RS COMES UNDER THE CATEGORY OF COMPLETED ASSESSMENTS AND SEC ONDLY CHALLENGING THE ADDITION OF NET PROFIT OF SUPPRESSE D RECEIPTS SUSTAINED BY THE LD. CIT(A) PLEADING THAT THE ESTIM ATION OF SUPPRESSED RECEIPTS IS NOT CORRECT AS IT IS NOT BAS ED ON ANY INCRIMINATING MATERIAL. 9. AS REGARDS THE REVENUES APPEALS THE ONLY ISSUE IS AGAINST THE FINDING OF LD. CIT(A) DELETING THE PART OF THE ADDI TION MADE BY LD. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 16 A.O FOR SUPPRESSED RECEIPTS AND SUSTAINING IT ONLY TO THE EXTENT OF NET PROFIT @2% OF SUPPRESSED RECEIPTS. 10. WE WILL FIRST TAKE UP ASSESSEES FIRST COMMON ISSU E THAT WHETHER THE ADDITIONS MADE IN THE CASE OF BLOCK ASS ESSMENTS PURSUANT TO SEARCH, FOR THE NON ABATED ASSESSMENT Y EARS COMPLETED CAN BE MADE WITHOUT ANY BASIS OF ANY INCRIMINATING MATERIAL. LD. COUNSEL FOR THE ASSESSEE PLACING RELIANCE ON THE JU DGMENT OF HON'BLE HIGH COURT OF DELHI IN THE CASE OF CIT V/S KABUL CHAWLA 281 CTR 85 (DELHI) SUBMITTED THAT THE SEIZED DOCUME NTS REFERRED TO BY THE LD. A.O COMES UNDER THE CATEGORY OF DUMB DOC UMENT AS NO DETAILS AS TO THE NATURE OF TRANSACTIONS AND THE PU RPOSES FOR THE AMOUNTS WERE MENTIONED AND THEREFORE HAS NO EVIDENT IAL VALUE FOR THE PURPOSE OF RESORTING TO REJECTING THE BOOKS OF ACCOUNTS. HE ALSO SUBMITTED THAT THE ASSESSMENT U/S 153A OF THE ACT C ANNOT BE MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL FOR THE YEAR WHICH HAD ATTAINED FINALITY I.E. COMPLETED ASSESSME NT YEARS AND ADDITION CAN BE MADE ONLY ON THE BASIS OF SEIZED IN CRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. RELIAN CE ALSO PLACED ON THE FOLLOWING DECISION; INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 17 A. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - KAMAL KISHORE KOTWANIIT(SS)A NO. 186 TO 190/IND/2016 DATE D 04.07.2018 B. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - KAMTA PRASAD DWIVEDI - IT(SS)A NO. 182 TO 185/IND/2016 DA TED 19.09.2018 C. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - ANANT STEEL PRIVATE LIMITED 28 ITJ 47 D. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - KALAN I BROTHERS (INDORE) PRIVATE LIMITED (2016) 27 ITJ 286 E. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - MUKES H SANGLA (HUF) (2016) 27 ITJ 172 G. HON'BLE JURISDICTIONAL BENCH OF INDORE ITAT - CHANDERBHAN LALCHANDANI IT(SS)A NO. 121/IND/2015 TO 126/IND/2015 H. HON'BLE HIGH COURT OF BOMBAY - CONTINENTAL WAREHOUS ING CORPORATL (NHAVASHEVA) LIMITED - 374 ITR 645 DATED 21.04.2015[CLPB 18-31] SLP DISMISSED I. HON'BLE DELHI HIGH COURT - KABUL CHAWLA[2015] 61 TAXMANN.COM 412 DATED 28.08.2015[CLPB 32-38] J. HON'BLE DELHI BENCH OF ITAT - SANJAY AGGRAWAL 169 T TJ 282/291 DATED 16.06.2014 K. HON'BLE KOLKATA BENCH OF ITAT - BUDHIYA MARKETING P VT LTD 173 TTJ 649 CAL DATED 10.07.2015 L. HON'BLE HIGH COURT OF BOMBAY - CONTINENTAL WAREHOUS ING INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 18 CORPORATION (NHAVASHEVA) LIMITED - 374 ITR 645 DATE D 21.04.2015[CLPB 18-31] SLP DISMISSED M. HON'BLE DELHI BENCH OF ITAT - SANJAY AGGRAWAL 169 T TJ 282/291 DATED 16.06.2014 N. HON'BLE KOLKATA BENCH OF ITAT - BUDHIYA MARKETING P VT LTD 173 TTJ 649 CAL DATED 10.07.2015 11. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF BOTH THE LOWER AUTHORITIES AND CONTENDED THAT THE ADDITIONS MADE WERE ON THE BASIS OF SEIZED MATERIAL WHICH WERE FOUND DURING THE COURSE OF SEAR CH. 12. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ISSUE WHICH NEEDS OUR ADJUDIC ATION IS WHETHER THE ADDITIONS MADE BY LD. A.O FOR ASSESSMEN T YEAR 2007- 08 TO 2011-12 WERE BASED ON ANY INCRIMINATING MATER IAL OR NOT. IF THIS QUESTION IS ANSWERED IN POSITIVE THEN THE LEGA L GROUNDS RAISED BY THE ASSESSEE WILL NOT STAND FOR. 13. FROM PERUSAL OF THE RECORDS WE OBSERVED THAT DURIN G THE COURSE OF SEARCH CONDUCTED ON 30.11.12 VARIOUS DOCU MENTS, LOOSE PAPERS AND BOOKS OF ACCOUNTS WERE SEIZED AND IMPOUN DED. REFERENCE TO SOME LOOSE PAPERS AT PAGE 5 TO 7 OF LP S-3 I.E. SEIZED RECORDS HAS BEEN MADE BY LD. A.O IN HIS ASSESSMENT ORDER. IN INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 19 THESE SHEET OF PAPERS WHICH ARE ALREADY SCANNED IN THE ASSESSMENT ORDER VARIOUS DETAILS ABOUT GROSS PROFIT, EXPENSES, COMPANY CONTRIBUTION, OUTSTANDING, CLUSTER OF FIGURES, DETA ILS OF AMOUNTS WITH DATES WERE FOUND. LD. A.O CALLED FOR THE NECE SSARY REPLY FROM THE ASSESSEE, WHICH CONFINED TO THE SUBMISSION THAT ALL THESE DOCUMENTS ARE PREPARED BY THE EMPLOYEE AND ARE MERE ROUGH JOTTINGS AND THEREFORE THESE SEIZED LOOSE PAPERS AR E NOTHING BUT DUMB DOCUMENT. WHEREAS LD. A.O TAKING THE BASIS OF THESE LOOSE SEIZED MATERIALS CAME TO THE CONCLUSION THAT THE AS SESSEE HAS BEEN UNABLE TO PROVIDE ANY PROPER EXPLANATION TO VARIOUS TRANSACTIONS MENTIONED IN THE SEIZED RECORDS. THESE DOCUMENTS W ERE RELATED TO THE ASSESSEE AS WERE FOUND DURING THE COURSE OF SEA RCH. TAKING THE BASIS OF THESE SEIZED RECORDS LD. A.O TREATED THEM AS INCRIMINATING MATERIAL AND WENT AHEAD TO MAKE ADDITIONS FOR SUPPR ESSED RECEIPTS @10% OF THE GROSS RECEIPTS DISCLOSED BY THE ASSESSE E IN THE REGULAR BOOKS OF ACCOUNTS. 14. IN THESE GIVEN CIRCUMSTANCES IT CANNOT BE SAID THA T THE ADDITION FOR SUPPRESSED RECEIPTS MADE BY LD. A.O AR E NOT BASED ON ANY INCRIMINATING MATERIAL. THOUGH THE ASSESSEE IS CHALLENGING IT TO INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 20 BE A DUMB DOCUMENT BUT THE ADDITION MADE BY THE LD. A.O HAVE A DIRECT NEXUS WITH THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. VARIOUS JUDGMENTS REFERRED AND R ELIED BY THE LD. COUNSEL FOR THE ASSESSEE CAN APPLY ONLY IN THOSE CA SES WHERE THE ADDITIONS FOR COMPLETED ASSESSMENTS POST SEARCH ARE MADE WITHOUT ANY BASIS OF INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH. 15. HOWEVER IN THE CASE OF ASSESSEE THE FACTS ARE DIFF ERENT BECAUSE THE ADDITIONS FOR ASSESSMENT YEAR 2007-08 TO 2011- 12 HAVE BEEN MADE BY LD. A.O ON THE BASIS OF INCRIMINATING MATER IAL FOUND DURING THE COURSE OF SEARCH AND SUCH INCRIMINATING MATERIAL HAS NO SPECIFIC MENTION OF THE ASSESSMENT YEAR FOR WHICH T HEY RELATES EXCEPT FOR FEW ENTRIES, THEREFORE THE LD. A.O WAS W ITHIN HIS POWERS TO MAKE THE ADDITIONS FOR THE BLOCK OF ASSESSMENTS FOR ASSESSMENT YEARS 2007-08 TO 2013-14 TAKING THE BASIS OF INCRIM INATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THEREF ORE THIS COMMON GROUND NO.2 RAISED BY THE ASSESSEE FOR ASSESSMENT Y EAR 2007-08 TO 2011-12 NEEDS TO BE DISMISSED. WE ACCORDINGLY O RDER SO. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 21 16. NOW WE TAKE UP NEXT COMMON ISSUE WHEREIN THE ASSES SEE IS CHALLENGING THE ADDITION ON THE SUPPRESSED RECEIPTS WHEREAS THE REVENUE IS CHALLENGING THE DELETION OF PART OF THE ADDITION BY LD. CIT(A) FOR THE SUPPRESSED RECEIPTS. 17. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E SEIZED DOCUMENTS REFERRED TO BY THE LD. A.O ARE DUMB DOCUM ENTS. NO DISCREPANCY HAS BEEN NOTED IN THE BOOKS OF ACCOUNTS AND THEREFORE REJECTION OF BOOKS OF ACCOUNTS WAS NOT VALID AND TH EREFORE LD. A.O ERRED IN ESTIMATING THE SUPPRESSED RECEIPTS. IN SU PPORT OF HIS CONTENTION THAT THERE SHOULD BE A STRONG AND SUFFIC IENT REASON TO INDICATE THAT THE BOOKS OF ACCOUNTS ARE NOT CORRECT . RELIANCE IS PLACED BY THE ASSESSEE ON THE FOLLOWING DECISIONS; A . HON'BLE JURISDICTIONAL HIGH COURT OF MADHYA PR ADESH - RAJ 24 DTR 191 DATED 02.01.2008[CLPB 01] B. HON'BLE APEX COURT - WOODWARD GOVERNORS INDIA PR IVATE LIMITED - 312 ITR 254 DATED 08.04.2009[CLPB 02-09] C. HON'BLE APEX COURT - DHAKESWARI COTTON MILLS LI MITED - 26 ITR 775 DATED 29.10.1954 [CLPB 10-13] D. HON'BLE HIGH COURT OF CALCUTTA - DABROS INDUSTRI AL INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 22 COMPANY PRIVATE LIMITED 108 ITR 424 DATED 18.07.197 5 [CLPB 14-15] E. HON'BLE HIGH COURT OF KERALA - ST. TERESA'S OIL MILLS DATED 76 ITR 365 DATED 06.11.1969 [CLPB 16-17] F. HON'BLE HIGH COURT OF CHHATTISGARH - ROOPCHAND T HARANI - [2012] 20 TAXMANN.COM 204 DATED 01.11.2011 [CLPB 77] G. HON'BLE JABALPUR BENCH OF ITAT - PARASIA ENGINEE RING PRIVATE LIMITED - [2017] 30 ITJ 462 DATED 21.06.201 7 [CLPB 78-79] H. HON'BLE JABALPUR BENCH OF ITAT - ASHOK KUMAR JAI N - [2012] 19 ITJ 233 DATED 03.02.2012 [CLPB 80-83] 18. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTED THE ORDER OF LD. A.O. 19. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. 20. SOME LOOSE PAPERS AND DOCUMENTS WERE SEIZED DURING THE COURSE OF SEARCH U/S 132 OF THE ACT ON 30.11.12 CON DUCTED ON THE ASSESSEES PREMISES. LD. A.O REFERRED TO PAGE 5 T O 7 OF LPS-3 WHICH CONTAINED VARIOUS TRANSACTIONS WITH DATES AND WITHO UT DATES. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 23 ASSESSEE WAS UNABLE TO SATISFY THE LOWER AUTHORITIE S THAT THESE SEIZED DOCUMENTS REFERRED TO BY THE LD. A.O IS A DU MB DOCUMENT. LD. A.O MADE THE ADDITION FOR SUPPRESSION OF RECEIP TS @10% FOR ALL THE ASSESSMENT YEARS CALCULATED AS FOLLOWS; A.Y. GROSS RECEIPTS SUPPRESSION OF RECEIPTS @10% 2007 - 08 13,78,147.82/ - 1,37,815/ - 2008 - 09 14,23,243.92/ - 1,42,324.3/ - 2009 - 10 4,91,63,878/ - 49,16,388/ - 2010 - 11 5,14,67,677.21/ - 51,46,768/ - 2011 - 12 8,21,19,067.15/ - 82,11,907/ - 2012 - 13 7,36,16,303 73,61,630/ - 2013 - 14 1,60,54,743/ - 76,05,474/ - TOTAL 3,35,22,579.3/ - 21. WHEN THE MATTER CAME UP BEFORE LD. CIT(A), HE APPL IED THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS BALCHAND AJIT KUMAR REPORTED IN 263 ITR 610 (M.P) W HEREIN IT WAS HELD THAT TOTAL SALE CANNOT BE REGARDED AS A PROFIT OF THE ASSESSEE. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 24 THE NET PROFIT RATE HAS TO BE ADOPTED. FOLLOWING A BOVE JUDGMENT, LD. CIT(A) AFTER OBSERVING THE NET PROFIT RATES DIS CLOSED BY THE ASSESSEE IN THE REGULAR BOOKS OF ACCOUNTS APPLIED T HE NET PROFIT RATE @2% TREATING IT TO BE AS REASONABLE AND COMPUTED TH E ADDITION ON ACCOUNT OF SUPPRESSED RECEIPTS OBSERVING AS FOLLOWS ; PARA 4. 1 DURING THE COURSE OF APPELLATE PROCEEDING S THE DETAILS OF NET PROFIT AS SHOWN BY THE APPELLANT ASSESSEE IN PAST 7 PRECEDING YEARS WAS FILED WHICH IS IN BETWEEN 0.59 2.05%. A.Y GROSS RECEIPTS AS PER P&L A/C NET PROFIT SHOWN BY ASSESSEE IN P&L A/C % OF PROFIT AS PER ASSESSEE 2007 - 08 1378148 26129 1.90 2008 - 09 1423244 29246 2.05 2009 - 10 49163878 289851 0.59 2010 - 11 54167677 304582 0.59 2011 - 12 82119067 501995 0.61 2012 - 13 73616303 522572 0.71 2013 - 14 76054743 900645 1.18 INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 25 THE NET PROFIT OF 2% SHOULD BE REASONABLE KEEPING I N VIEW THE NET PROFIT DECLARED BY THE APPELLANT ASSESSEE IN TH E PAST YEARS. IN VIEW OF THE ABOVE, THE ADDITION ON ACCOUNT OF SUPPR ESSED RECEIPTS IS WORKED AS UNDER APPLYING A NET PROFIT RATE OF 2% ON THE ENHANCED TURNOVER ON ACCOUNT OF SUPPRESSED RECEIPTS. ASSESSMENT YEAR ADDITION BY A.O. FOR TURNOVER NET PROFIT @2% OF ENHANCED TURNOVER 2007 - 08 RS.1,37,815/ - RS.2,756/ - 2008 - 09 RS.1,42,324/ - RS.2,846/ - 2009 - 10 RS.49,16,388/ - RS.98,327/ - 2010 - 11 RS.51,46,388/ - RS.1,02,935/ - 2011 - 12 RS.82,11,907/ - RS.1,64,238/ - 2012 - 13 RS.73,61,630/ - RS.1,47,232/ - 2013 - 14 RS.76,05,474/ - RS.1,52,109/ - 22. WE FURTHER OBSERVE THAT INCRIMINATING MATERIAL FO UND DURING THE COURSE OF SEARCH CONTAINS CERTAIN TRANSACTIONS RELATING TO ASSESSESSEES BUSINESS. IN OUR VIEW THEY CANNOT BE CATEGORIZED AS DUMB DOCUMENT. THESE ALLEGED SEIZED MATERIAL REFER RED TO BY THE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 26 LD. A.O CONTAINS CERTAIN BUSINESS TRANSACTION NOT E XPLAINED SATISFACTORILY BY THE ASSESSEE BEFORE THE LOWER AUT HORITIES AND ALSO BEFORE US WHICH JUSTIFY THE ACTION OF THE LD. A.O O F REJECTING THE BOOKS OF ACCOUNTS AND ESTIMATING THE SUPPRESSED REC EIPTS. THOUGH LD. A.O MADE THE ADDITION FOR SUPPRESSED RECEIPTS W HICH IN OUR VIEW WAS NOT JUSTIFIED AND LD. CIT(A) WAS FAIR ENOU GH TO APPLY 2% OF NET PROFIT RATE ON THE ALLEGED SUPPRESSED RECEIPTS BY TAKING BASIS OF NET PROFIT RATE DISCLOSED BY THE ASSESSEE FOR VARIO US ASSESSMENT YEARS WHICH RANGES FROM 0.59% TO 2.05%. IN OUR CON SIDERED VIEW NO INTERFERENCE IS CALLED FOR IN THE FINDINGS OF LD . CIT(A) SUSTAINING THE ADDITION TO THE EXTENT OF 2% OF THE ENHANCED TU RNOVER. WE CONFIRM THE SAME AND DISMISS THE COMMON GROUND NO. 3, 4 AND 5 RAISED BY THE ASSESSEE FOR ASSESSMENT YEARS 2013-14 AND ALSO DISMISS ALL THE GROUNDS RAISED BY THE REVENUE FOR 2 011-12 TO 2013- 14. 23. COMMON GROUND NO.1 RAISED BY THE ASSESSEE IS GENER AL IN NATURE WHICH NEEDS NO ADJUDICATION. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 27 24. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 TO 2013-14 AND THAT OF THE REVENUE FOR ASSESSMENT YEAR 2011-12 TO 2013-14 STANDS DISMISSED. 25. NOW WE TAKE UP THE APPEALS BY THE ASSESSEE IN THE CASE OF SMT. NEETA BHADURIA FOR ASSESSMENT YEAR 2007-08 TO 2013-14 WHEREIN FOLLOWING GROUNDS OF APPEALS HAVE BEEN RAIS ED; III. SMT. NEETA BHADAURIA ITA(SS) NO.85 TO 89/IND/2017 & ITA NO.270/IND/2017 ASSESSMENT YEAR 2007-08 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN BANK OF RS.32000 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVI DENCE, THE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 28 ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.32000 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE ASSESSEE OF RS.32000 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSI TS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND TH E ADDITION SUSTAINED AT RS.32000 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GIVIN G THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS.32000 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2008-09 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 29 IN THE NATURE OF CASH DEPOSIT IN THE BANK OF RS.179 00 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.17900 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE ASSESSEE OF RS.17900 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSI TS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTI FIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUAS HED AND THE ADDITION SUSTAINED AT RS.17900 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, W ITHOUT GIVING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT A T ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS .17900 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U/S INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 30 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK OF RS.200 0 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.2000 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE ASSESSEE OF RS.2000 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSIT S REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND TH E ADDITION SUSTAINED AT RS.2000 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, W ITHOUT GIVING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT A T ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS .2000 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 31 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK OF RS.300 0 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.3000 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE ASSESSEE OF RS.32000 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSI TS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTI FIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUAS HED AND THE ADDITION SUSTAINED AT RS.3000 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GI VING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS.3000 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2012-13 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 32 UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED AUTHORITIES, THAT THE CASH DEPOSIT OF THE A SSESSEE OF RS.952712 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOS ITS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY JUSTI FIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUAS HED AND THE ADDITION SUSTAINED AT RS.9253712 BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, NO JUSTIFICATION IN TREATING THE ENTIRE CASH DEPOSI TS IN THE BANK AS UNEXPLAINED DEPOSITS, WITHOUT GIVING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT ANY EVENT ONLY THE PEAK AMOUN T MAY BE ADDED AND THE ADDITION OF RS.952712 BE KINDLY DELET ED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED: ASSESSMENT YEAR 2013-14 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FINDINGS OF THE LEARNED AUTHORITIES, THAT THE CASH DEPOSIT OF THE A SSESSEE OF RS.3130750 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPO SITS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY JUSTIFIED, OPPOSED TO FACTS AND INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 33 UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND TH E ADDITION SUSTAINED AT RS.3130750 BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, NO JUSTIFICATION IN TREATING THE ENTIRE CASH DEPOSITS IN THE BANK AS UNEXPLAINED DEPOSITS, WITHOUT GIVING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT ANY EVENT ONLY THE PEAK AMOUN T MAY BE ADDED AND THE ADDITION OF RS.3130750 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED 26. FROM PERUSAL OF ABOVE GROUNDS WE OBSERVE THAT FOLL OWING TWO COMMON ISSUES HAVE BEEN RAISED BY THE ASSESSEE; (I) IN ABSENCE OF ANY INCRIMINATION MATERIAL NO ADD ITION WAS CALLED FOR IN THE ASSESSMENTS COMPLETED U/S 153A R. W.S. 143(3) OF THE ACT FOR THE COMPLETED ASSESSMENTS BEF ORE THE DATE OF SEARCH. (II) CHALLENGING THE ADDITION U/S 68 OF THE ACT FOR UNEXPLAINED CASH DEPOSITED IN BANK ACCOUNT. 27. APROPOS FIRST COMMON ISSUE LD. COUNSEL FOR THE ASS ESSEE REFERRED AND RELIED UPON THE SAME SET OF JUDGMENTS AS WERE RELIED IN THE CASE OF M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD IS REFERRED IN PARA 10 ABOVE. IT WAS ARGUED THAT INCOME TAX RETUR NS FOR ASSESSMENT YEAR 2007-08 TO 2010-11 WERE REGULARLY F ILED U/S INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 34 139(1) OF THE ACT AND THE TIME LIMIT FOR ISSUANCE O F NOTICE U/S 143(2) OF THE ACT STOOD EXPIRED ON 30.09.2010 FOR THE RETU RN FILED FOR ASSESSMENT YEAR 2010-11. SEARCH TOOK PLACE ON 30.1 1.2012. ADDITIONS MADE FOR UNEXPLAINED CASH DEPOSIT ARE NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL. 28. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTED THE ORDER OF LOWER AUTHORITIES . 29. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. 30. THE COMMON ISSUE RAISED BY THE ASSESSEE I.E SMT. N EETA BHADURIA IS THAT NO ADDITIONS WITHOUT ANY BASIS OF ANY INCRIMINATING MATERIAL SHOULD STAND FOR AS THE ASSE SSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2010-11 AND PRIOR Y EARS WERE NOT PENDING AS ON THE DATE OF SEARCH AND THE SAME WILL BE DEEMED TO HAVE BEEN COMPLETED. 31. WE OBSERVE THAT THE SEARCH UNDER THE GROUP CASE TO OK PLACE ON 30.11.2012. ASSESSEE HAS FILED REGULAR RETURN OF I NCOME FOR ASSESSMENT YEARS 2007-08 TO 2010-11 ON 31.7.2007, 3 1.07.2008, 30.07.2009 AND 31.07.2010 RESPECTIVELY. THE TIME L IMIT FOR INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 35 ISSUANCE OF NOTICE U/S 143(2) OF THE ACT STANDS EXP IRED AFTER 30.9.2010. THE CASE OF THE ASSESSEE IS THAT THE LA ST DATE FOR SELECTING THE CASE FOR SCRUTINY FOR ASSESSMENT YEAR 2010-11 WAS 30.9.2010. ALL THE RETURNS ARE FILED ON EARLIER DA TES AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT FOR ASSESSMENT YEAR 2007-08 TO 2010-11 HAS EXPIRED. THUS ALL THE ASSESS MENTS FOR ASSESSMENT YEAR 2007-08 TO 2010-11 ARE CONCLUDED AN D NON ABATED ASSESSMENTS. NOW THE ISSUE IS WHETHER FOR S UCH CONCLUDED AND NON ABATED ASSESSMENTS FOR ASSESSMENT YEAR 2007 -08 TO 2010- 11 WHETHER THE LD. A.O CAN MAKE ANY ADDITION WITHOU T HAVING ITS NEXUS TO THE SEIZED INCRIMINATING MATERIAL. WE FIN D THAT THE ASSESSEE RELIED AND PLACED VARIOUS DECISIONS. RECE NTLY ON 28.2.2019, I.T.A.T. INDORE BENCH IN THE CASE OF OMP RAKASH GUPTA V/S ACIT 277 TO 281/IND/2018 AND OTHERS ORDER DATED 28.2.2019 IN WHICH UNDERSIGNED WAS A CO-AUTHOR, ADJUDICATED S IMILAR ISSUE AND A DETAILED DISCUSSION WAS MADE ABOUT VARIOUS JU DGMENTS IN FAVOUR OF THE ASSESSEE/REVENUE AND THE TRIBUNAL DEC IDED IN FAVOUR OF THE ASSESSEE OBSERVING AS FOLLOWS; 11. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED T HE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 36 ASSESSEE IS AN INDIVIDUAL FILED RETURNS OF INCOME F OR ALL THE ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2008-09 TO 2012-13 AND ASSESSMENTS ARE COMPLETED U/S 143(1) OF THE ACT. SUBSEQUENTLY, A SE ARCH ACTION WAS CONDUCTED U/S 132 OF THE ACT IN THE BUSINESS GROUP OF THE ASSESSEE AND A.O. HAS ASKED THE ASSESSEE TO FILE RETURNS OF INCO ME FOR ALL THE ASSESSMENT YEARS BY ISSUE OF NOTICE U/S 153A OF THE ACT ON 12.9.2014. IN RESPONSE TO THAT, ASSESSEE HAS FILED RETURNS OF INC OME FOR A.YRS. 2008-09 TO 2013-14 ON 7.11.2014. THE CASE OF THE ASSESSEE I S THAT THE RETURN FOR A.Y. 2012-13 WAS FILED ON 7.11.2012. AS PER SECTION 143(2) OF THE ACT, THE LAST DATE ON WHICH NOTICE FOR ASSESSMENT WOULD HAVE BEEN ISSUED WAS 30.9.2013. ALL THE OTHER RETURNS ARE FILED ON EARLI EST DATE AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT IN ALL TH OSE CASES HAS EXPIRED. THE SEARCH WAS INITIATED IN THE BUSINESS PREMISES OF TH E ASSESSEE ON 29.1.2014 AND THEREFORE THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT IS LAPSED. ALL THE ASSESSMENT YEARS FROM 2008-0 9 TO 2012-13 ARE CONCLUDED AND NON ABATED ASSESSMENTS. THE A.O. CANN OT REOPEN THE ASSESSMENTS U/S 153A OF THE ACT. IN SO FAR AS THE A BOVE SUBMISSION IS CONCERNED FROM THE ASSESSMENT ORDER AND EVEN FROM T HE LD. CIT(A)S ORDER, THERE IS NOTHING ON THE RECORD WHICH SAYS THAT THE ADDITIONS MADE BY THE A.O. ARE BASED ON ANY INCRIMINATING MATERIAL. EVEN WHEN THE SAME WAS POINTED OUT TO LD. D.R., SHE IS NOT ABLE TO ESTABLI SH THE FACT THAT ADDITIONS ARE BASED ON ANY INCRIMINATING MATERIAL, THEREFORE WE FIND THAT THE ADDITIONS MADE BY THE A.O. FOR ALL THE YEARS ARE NO T BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IT IS ONLY BASED ON SUBSEQUENT SE ARCH BY ISSUE OF NOTICE U/S 153A OF THE ACT CALLING FOR THE VARIOUS DOCUMEN TS FROM THE ASSESSEE ADDITIONS ARE MADE. IN SO FAR AS THE ARGUMENTS OF T HE LD. COUNSEL FOR THE ASSESSEE IN RESPECT OF CONCLUDED ASSESSMENTS CANNOT BE REOPENED, WE FIND THAT IN ALL THE ASSESSMENT YEARS FROM 2008-09 TO 2012-13, THERE IS NO SCOPE FOR THE A.O TO ISSUE A NOTICE U/S 143(2) OF T HE ACT FOR THE REASON THAT THE TIME LIMIT IS ALREADY OVER BEFORE THE DATE OF S EARCH ITSELF I.E. ON 29.1.2014. THEREFORE, IN OUR OPINION, ALL THE ASSES SMENT YEARS FROM 2008- 09 TO 2012-13 ARE CONCLUDED ASSESSMENTS AND NON ABA TED ASSESSMENTS AND ANY ADDITION HAS TO BE MADE IN RESPECT OF THOSE ASSESSMENT YEARS, THERE MUST BE AN INCRIMINATING MATERIAL. IN THE PRE SENT CASE, THERE IS NO INCRIMINATING MATERIAL AND THEREFORE, THE ADDITIONS MADE BY THE A.O. CANNOT SURVIVE. 12. THIS VERY ISSUE HAS BEEN CONSIDERED BY THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSIN G CORPORATION (2015) 120 DTR (BOM) 89 AND HAS OBSERVED THAT U/S 153A OF THE ACT WHICH ENABLES CARRYING OUT A SEARCH OR EXERCISE OF A POWE R OF REQUISITION, ASSESSMENT IN FURTHERANCE THEREOF IS CONTEMPLATED. THERE IS A MANDATORY ISSUE OF NOTICE U/S 153(1A) OF THE ACT AND ASSESS A ND REASSESS THE TOTAL INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 37 INCOME OF 6 ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THAT THE CRUCIAL WORD SEARCH AND REQUISITION APPEAR FOR THE SUBSTANTIVE PROVISION ON THE PROVISOS. THAT WOULD THROW THE LIGHT ON THE ISSUE OF APPLICABILITY OF THE PROVISION. TRUE I T IS THAT THE ASSESSMENT, WHICH HAS TO BE MADE IN PURSUANCE OF THE NOTICE IS IN RELATION TO THE 6 YEARS. AN ORDER WILL HAVE TO BE MADE IN THAT RECORD WHILE MAKING THE ORDER, THE INCOME OR THE RETURN OF INCOME FILED FOR ALL THOSE ASSESSMENT YEARS IS TO BE TAKEN INTO ACCOUNT. A REFERENCE WILL HAVE TO BE MADE TO THE INCOME DISCLOSED THEREIN. HOWEVER, THE SCOPE OF ENQ UIRY THERE OF NOT CONFINED ESSENTIALLY REVOLVES AROUND THE SEARCH OR THE REQUISITION U/S 132A OF THE ACT AS THE CASE MAY BE. THE PROVISO DEA LS WITH THE CASES WHERE THE ASSESSMENT OR REASSESSMENT, IF ANY RELATI NG TO ASSESSMENT YEARS FALLING WITHIN THE PERIOD OF 6 ASSESSMENT YEA RS REFER TO IN SUB SECTION 1 OF SECTION 153A OF THE ACT WERE PENDING. IF THEY WERE PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 OF THE ACT OR MAKING REQUISITION U/S 132A OF THE ACT AS THE CASE MAY BE, THEY ABATE. IT IS ONLY BINDING PRECEDENCE THAT WOULD ABATE AND NOT WHERE THERE ARE ORDERS MADE ON ASSESSMENT OR REASSESSMENT AND WHICH ARE IN FORCE O N THE DATE OF INITIATION OF THE SEARCH OR MAKING THE REQUISITION. 13. IN THE CASE OF COMMISSIONER OF INCOME TAX (CENT RAL)-3 KABUL CHAWLA (2015) 61 TAXMAN.COM 412 (DEL.), THE HONBLE DELHI HIGH COURT HAS CONSIDERED THE SCOPE OF SECTION 132 OF THE ACT AND 153A(1) OBSERVED AS UNDER: 14. FROM THE ABOVE DECISION, IT IS VERY CLEAR THAT IN RESPECT OF CONCLUDED ASSESSMENTS ADDITIONS CANNOT BE MADE WITHOUT INCRIM INATING MATERIAL. 15. THE HONBLE DELHI HIGH COURT IN THE CASE OF PCI T VS. MEETA GUTGUTIA 395 ITR 296 (DELHI) HAS HELD THAT IT WAS ONLY IF DU RING THE COURSE OF THE SEARCH U/S 132 OF THE ACT INCRIMINATING MATERIAL JU STIFYING THE REOPENING OF THE ASSESSMENT YEARS FOR 6 PREVIOUS YEARS WAS FOUND THAT INVOCATION OF SECTION 153A OF THE ACT QUA EACH OF THE ASSESSMENT YEAR WOULD JUSTIFY. 16. IN THE CASE OF PRINCIPAL CIT VS. SOUMYA CONSTRU CTIONS 387 I TR 529 (GUJ.) THE HONBLE GUJARAT HIGH COURT HAS OBSER VED THAT THE ADDITION WAS BASED ON STATEMENT OF THE THIRD PERSON AND NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH, THEREFORE THE ADDITION DELETED BY THE TRIBUNAL WAS UPHELD. 17. IN THE CASE OF PCIT VS. LATA JAIN 384 ITR 543 ( DEL) (SUPRA), THE HONBLE DELHI HIGH COURT HAS HELD THAT THE TRIBUNAL WAS RIG HT IN HOLDING THAT THERE HAD TO BE INCRIMINATING MATERIAL RECOVERED DURING T HE COURSE OF SEARCH QUA INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 38 THE ASSESSEE IN EACH YEAR FOR THE PURPOSE OF FRAMIN G AN ASSESSMENT U/S 153A OF THE ACT. 18. FROM THE ABOVE ALL THE DECISIONS, IT IS VERY CL EAR THAT THE A.O. TO MAKE AN ADDITION U/S 153A OF THE ACT AND THERE MUST BE I NCRIMINATING MATERIAL AVAILABLE TO THE A.O. DURING THE COURSE OF THE SEAR CH. UNLESS THERE IS AN INCRIMINATING MATERIAL, THE CONCLUDED/NON ABATED AS SESSMENTS CANNOT BE DISTURBED AGAIN U/S 153A OF THE ACT. 19. IN SO FAR AS KERALA HIGH COURT DECISION IN THE CASE OF E.N. GOPAKUMAR (SUPRA) THE HONBLE KERALA HIGH COURT HAS HELD THAT EVEN WITHOUT THERE BEING ANY INCRIMINATING MATERIAL, THE A.O. IS EMPOW ERED TO MAKE AN ADDITION U/S 153A OF THE ACT. THE SAME VIEW HAS BEE N EXPRESSED BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY (SUPRA). 20. IN THE ABOVE CIRCUMSTANCES, WHETHER THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PROD UCTS (SUPRA) HAS TO BE APPLIED OR NOT. THE LD. D.R. HAS SUBMITTED THAT THE DECISION HELD IN CIT VS. VEGETABLE PRODUCTS (SUPRA) CANNOT BE APPLIED IN EAC H AND EVERY CASE IN THE LIGHT OF THE DECISION OF CCV DILIP KUMAR (SUPRA). I N THE PRESENT CASE, THE ASSESSEE HAS FILED ALL THE RETURNS BEFORE CONDUCTIN G THE SEARCH AND THE TIME LIMIT TO ISSUE NOTICE U/S 143(2) OF THE ACT AL READY LAPSED AND A SEARCH IS CONDUCTED AND NO INCRIMINATING MATERIAL IS FOUND . THE A.O. CALLED FOR BOOKS OF ACCOUNTS AND OTHER RELEVANT DOCUMENTS AND ASSESSMENT IS COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT. 21. THERE ARE MANY DECISIONS IN FAVOUR OF THE ASSES SEE, WHICH SAYS THAT ONCE ASSESSMENTS ARE CONCLUDED WITHOUT INCRIMINATI NG MATERIAL, ADDITIONS CANNOT BE MADE BY REOPENING U/S 153A OF THE ACT. TH ERE ARE TWO DECISIONS, ONE IS OF HON'BLE KERALA HIGH COURT IN T HE CASE OF E.N. GOPAKUMAR (SUPRA) AND THE SECOND ONE IS OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COM PANY VS. DCIT CENTRAL CIRCLE-1,BANGALORE (SUPRA) IN FAVOUR OF THE REVENUE IN WHICH IT WAS HELD THAT NO INCRIMINATING MATERIAL IS NECESSARY TO REOPEN THE ASSESSMENTS AND TO MAKE AN ADDITION. IN THE PRESENT CASE, DECIS IONS OF HONBLE DELHI, GUJARAT AND BOMBAY HIGH COURTS ARE IN FAVOUR OF THE ASSESSEE. THE DECISIONS OF HON'BLE KERALA HIGH COURT AND KARNATAK A HIGH COURT ARE AGAINST THE ASSESSEE. WE FIND THAT AFTER EXAMINING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE JUDGEMENT OF THE HON 'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS (SUPRA) HAS TO BE FO LLOWED. THE HON'BLE SUPREME COURT IN THE ABOVE CASE HAS HELD THAT IF T WO REASONABLE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 39 CONSTRUCTIONS OF A TAXING PROVISIONS ARE POSSIBLE, THEN THAT CONSTRUCTION, WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. 22. IN THE INTEREST OF JUSTICE, THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS (SUPRA) HAS TO BE FO LLOWED. THEREFORE, WE RESPECTIVELY FOLLOWING THE DECISION OF HON'BLE DELH I HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA), HON'BLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SUPRA) AND ALS O HONBLE GUJARAT HIGH COURT IN THE CASE OF PCIT VS. MEETA GUTGUTIA ( SUPRA), WE HOLD THAT NO ADDITION CAN BE MADE IN RESPECT OF CONCLUDED ASSESS MENTS U/S 153A OF THE ACT UNLESS THERE IS ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WE WOULD LIKE TO MAKE IT CLEAR THAT WHER E THE ASSESSMENT IS COMPLETED U/S 143(1) OR 143(3) OF THE ACT UNLESS A. O. HAS A TIME TO ISSUE NOTICE U/S 143(2) OF THE ACT, A.O.CANNOT MAKE AN AD DITION U/S 153A OF THE ACT, UNLESS THERE IS AN INCRIMINATING MATERIAL FOUN D DURING THE COURSE OF THE SEARCH. 23. THE COORDINATE BENCH OF THE TRIBUNAL IN THE CAS E OF SAINATH COLONISERS VS. ACIT (CENTRAL)-II BHOPAL IN IT(SS)A NOS.289 TO 291/IND/2017 DATED 28.2.2019 HAS CONSIDERED THE SIMILAR ISSUE AND HAS HELD THAT IF THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT EXPIRES, NO ADDITION CAN BE MADE U/S 153A OF THE ACT. FOR THE SAKE OF CONVENIENCE RE LEVANT PORTION OF THE ORDER IS EXTRACTED HEREUNDER: 8. WE OBSERVE THAT THE ASSESSEE HAS FILED REGULAR RETURN OF INCOME U/S 139 OF THE ACT FOR ASSESSMENT YEAR 2008-09 TO 2 010-11ON 30.9.08, 31.3.2010 AND 12.10.2010 AFTER CLAIMING DE DUCTION U/S 80IB(10) AT RS.8,92,452/-, RS.2,66,948/- AND RS.2,4 4,417/- RESPECTIVELY. THE TIME LIMIT FOR ISSUANCE OF NOTICE S U/S 143(2) OF THE ACT STOOD EXPIRED IN RELATION TO THE ASSESSMENT YEA R 2008-09 TO 2010-11 MUCH BEFORE THE DATE OF CONDUCTING THE SEAR CH I.E.29.1.2014 AND THEREFORE THESE THREE ASSESSMENT YEARS FALLS UNDER THE CATEGORY OF UNABATED/NON ABATED ASSESSMEN TS. NOW IN THE GIVEN FACTS LD. COUNSEL FOR THE ASSESSEE HAS RE LIED FEW JUDGMENTS AND LD. DEPARTMENTAL REPRESENTATIVE HAS R ELIED TO FEW JUDGMENTS IN ITS FAVOUR. HOWEVER, THE HON'BLE APEX COURT IN THE CASE OF CIT V/S VEGETABLE PRODUCTS LTD 88 ITR 192 HAS H ELD THAT IF TWO REASONABLE CONSTRUCTION OF A TAXING PROVISIONS ARE POSSIBLE, THEN THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADO PTED. IN THE LIGHT OF ABOVE JUDGMENT OF HON'BLE APEX COURT WE HA VE GONE THROUGH THE JUDGMENTS REFERRED AND RELIED BY BOTH THE PARTI ES AND ARE INCLINED TO FOLLOW THE VIEW TAKEN BY HON'BLE COURTS ON THE ISSUE IN QUESTION BEFORE US FAVOURING THE ASSESSEE. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 40 9. THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF PCIT VS. DESAI CONSTRUCTION (SUPRA) CONFIRMED THE VIEW TAKEN BY TH E TRIBUNAL UPHOLDING THE CONTENTION OF THE ASSESSEE THAT AS NO INCRIMINA TING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD HAVE ENABLE D THE ASSESSING OFFICER TO RE-EXAMINE ITS CLAIM FOR DEDUCTION U/S 8 0IB WHICH WAS PART OF THE ASSESSMENT PRIOR TO THE SEARCH AND SUCH ASSESSM ENT UNABATED. SIMILARLY HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION AND ALL CARGO GLOBAL LOGIST ICS LTD (SUPRA) CONFIRMED THE VIEW TAKEN BY THE SPECIAL BENCH OF I. T.A.T. MUMBAI BENCH DECIDED IN FAVOUR OF ASSESSEE DISMISSING THE REVENU ES APPEAL HOLDING THAT THERE WAS NOINCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THE TRIBUNAL WAS RIGHT IN HOLDING THE POWER CONFERRED U /S 153A BEING NOT EXPECTED TO BE EXERCISED ROUTINELY, SHOULD BE EXERC ISED IF THE SEARCH REVEALED ANY INCRIMINATING MATERIAL. IF THAT WAS NO T FOUND THEN IN RELATION TO THE SECOND PHASE OF THREE YEARS, THERE WAS NO WA RRANT FOR MAKING AN ORDER WITHIN THE MEANING OF THIS PROVISION. 10. SIMILAR VIEW WAS ALSO TAKEN BY THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA (2015) 61 TAXMANN 412. 11. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENTS REFERRED AND R ELIED BY THE LD. COUNSEL FOR THE ASSESSEE ARE OF THE CONSIDERED VIEW THAT NO ADDITION/DISALLOWANCE WAS CALLED FOR ASSESSMENT YEAR 2008-09 TO 2010-11 A S NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AT T HE PREMISES OF THE ASSESSEE AS THE TIME LIMIT OF ISSUANCE OF NOTICE U/ S 143(2) OF THE ACT STOOD EXPIRED MUCH BEFORE THE DATE OF CONDUCTING SEARCH U /S 132 OF THE ACT. ACCORDINGLY ALL THE THREE APPEALS OF THE ASSESSEE A RE ALLOWED. 24. IN SO FAR AS THE ARGUMENTS OF THE LD. D.R. IN R ESPECT OF FOLLOWING THE RATIO OF THE HON'BLE SUPREME COURT IN THE CASE OF V EGETABLE PRODUCTS (SUPRA), THE LD. D.R. BY RELYING ON THE DECISION IN THE CASE OF CCV DILIP KUMAR (SUPRA) HAS SUBMITTED THAT THE RATIO LAID DOW N IN THE CASE OF VEGETABLE PRODUCTS (SUPRA) CANNOT BE APPLIED. WE FI ND THAT IN THE CASE OF CCV DILIP KUMAR (SUPRA) HAS CONSIDERED THE EXEMPTIO N PROVISIONS AND HELD THAT EXEMPTION PROVISIONS HAS TO BE CONSIDERED STRICTLY AND IN A CASE OF AMBIGUITY VIEW WHICH FAVOURS THE REVENUE MUST BE ADOPTED. THEREFORE, THE ABOVE DECISION RELIED BY THE LD. D.R. HAS NO AP PLICATION TO THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF VE GETABLE PRODUCTS (SUPRA). THEREFORE, ARGUMENT OF THE LD. D.R. IS REJ ECTED. 25. IN VIEW OF THE ABOVE, THE ORDER PASSED BY LD. C IT(A) IS REVERSED AND THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 41 26. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E IN ITA NOS.277 TO 281/IND/2017 ARE ALLOWED. 32. FROM PERUSAL OF THE ABOVE DECISION OF THE TRIBUNAL WHICH HAS CONSIDERED VARIOUS JUDGMENTS OF HONBLE HIGH COURTS AS DISCUSSED ABOVE, CAME TO A CONCLUSION THAT WHILE MAKING THE A SSESSMENT U/S 153A R.W.S 143(3) OF THE ACT SUBSEQUENT TO SEARCH P ROCEEDINGS U/S 132 OF THE ACT, ADDITIONS FOR CONCLUDED/NON ABATED ASSESSMENTS CANNOT BE MADE UNLESS THERE IS ANY INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH. APPLYING THE SAME RAT IO IN THE IDENTICAL FACTS BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT FOR ASSESSMENT YEAR 2007-08 TO 2010-11 THE LD. A.O HAS NO TIME TO ISSUE NOTICES U/S 143(2) OF THE ACT WHILE THE REGUL AR RETURN OF INCOME WAS FILED AND IN THE ASSESSMENT PROCEEDINGS U/S 153A R.W.S. 143(3) OF THE ACT THE ADDITIONS FOR UNEXPLAI NED CASH DEPOSIT HAVE NO NEXUS WITH ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. RATHER DURING THE COURSE OF ASSES SMENT PROCEEDINGS CARRIED OUT BY THE LD. A.O U/S 153 R.W. S. 143(3) OF THE ACT WHILE GOING THROUGH THE INFORMATION CALLED DURI NG THE COURSE OF PROCEEDINGS ABOUT THE BANK ACCOUNTS THIS ISSUE CAME IN LIGHT. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 42 REVENUE HAS NOT CONTROVERTED THE FACT THAT THE ADDI TIONS FOR UNEXPLAINED CASH DEPOSIT MADE FOR ASSESSMENT YEAR 2 007-08 TO 2010-11 IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THEREFORE WE ARE INCLINED TO FOLLOW THE JUDICIAL PRONOUNCEMENTS REFERRED ABOVE AND ALLOW THE ASSESSE ES GROUND NO.2 FOR ASSESSMENT YEAR 2007-08 TO 2010-11 AND DIR ECT THE LD. A.O TO DELETE THE ADDITION FOR RS.32,000/-, RS.17,9 00/-, RS.2,000/- AND RS.3,000/- FOR ASSESSMENT YEAR 2007-08 TO 2010- 11 RESPECTIVELY. IN THE RESULT THE APPEALS OF THE ASS ESSEE FOR ASSESSMENT YEAR 2007-08 TO 2010-11 ARE ALLOWED. 33. APROPOS THE SECOND COMMON ISSUE FOR ASSESSMENT YEA R 2012- 13 AND 2013-14 WHEREIN THE ASSESSEE IS CHALLENGING THE FINDINGS OF LD. CIT(A) CONFIRMING THE ADDITION OF RS.9,52,712/- AND RS.31,30,750/- FOR UNEXPLAINED CASH DEPOSITED IN BA NK ACCOUNT U/S 68 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE BASIC REQUIREMENT FOR MAKING THE PROVISIONS OF SECT ION 68 OF THE ACT IS MAINTENANCE OF BOOKS OF ACCOUNT. BANK STATEMENT/ PASS BOOK IS NOT AN ACCOUNT MAINTAINED BY THE ASSESSEE. RELIANC E WAS PLACED ON FOLLOWING JUDGMENTS IN SUPPORT OF THE CONTENTION THAT IF NO BOOKS INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 43 OF ACCOUNTS ARE MAINTAINED THEN NO ADDITION UNDER T HE PROVISION OF SECTION 68 OF THE ACT ARE CALLED FOR; A. MANSI MAHENDRA PITKAR (2016) 73 TAXMANN.COM 68 (MUMBAI) ORDER DATED 12.08.2016 B. BHAICHAND N GANDHI (1982) 141 ITR 67 (BOM) C. RAJSHIBHAI MERAMANBHAI ODERDRA ITA NO.1019 TO 1023/RJT/2010- HONBLE RAJKOT BENCH OF ITAT ORDER DATED 14.12.2012. D. MADHU RAITANI (2011) 45 SOT 231 HONBLE GAUHAT I BENCH OF ITAT - 07.10.2010. E. TEJ BOREWELLS (2007) 291 ITR 232 HONBLE MADRA S HIGH COURT DATED 02.04.2007 FOLLOWED THE DECISION OF HON BLE APEX COURT IN THE CASE OF ANANTHRAM VEERASINGHAIAH & CO (1980) 123 ITR 457 DATED 15.04.1981. 34. WITHOUT PREJUDICE TO THE ABOVE SUBMISSION CHALLENG ING THE APPLICABILITY OF PROVISIONS OF SECTION 68 OF THE AC T, LD. COUNSEL FOR THE ASSESSEE MADE AN ALTERNATE SUBMISSION REFERRING TO THE CASH FLOW STATEMENT PLACED IN THE PAPER BOOK CONTENDING THAT LD. A.O HAS NOT COMPUTED THE AMOUNT OF CASH DEPOSITED AND W ITHDRAWN INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 44 FROM BANK FOR THE YEAR UNDER CONSIDERATION. LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THERE ARE CERTAIN INCORRECT OBSERVATIONS BY THE LD. A.O FOR ASSESSMENT YEAR 2012-13 FOR WHICH A S PER ASSESSEE CASH WITHDRAWN IS CLAIMED AT RS.11,64,000/- BUT LD. A.O HAS CONSIDERED IT AT RS.6,84,000/-. SIMILARLY FOR ASSE SSMENT YEAR 2013-14 ASSESSEE CLAIMED TO HAVE DEPOSITED CASH OF RS.29,85,750/- AND LD. A.O HAS ADOPTED A FIGURE OF RS.31,30,750/- SIMILARLY FOR CASH WITHDRAWAL FOR ASSESSMENT YEAR 2 013-14 ASSESSEE HAS CLAIMED TO HAVE WITHDRAWN RS. 7,85,000 /- AND LD. A.O HAS ADOPTED RS.5,50,000/-. HE ALSO CONTENDED T HAT THE AMOUNT WITHDRAWN IS AVAILABLE FOR ROTATION AND THE ASSESSEE IS ALSO EARNING INCOME FROM BUSINESS OF CIVIL CONSTRUCTION WHICH IS ALSO DEPOSITED IN BANK ACCOUNT AND IS AVAILABLE FOR WITH DRAWAL. 35. ONE MORE ALTERNATE SUBMISSION WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE PEAK CREDIT THEOR Y MAY PLEASE BE APPLIED CONSIDERING THAT NO CASH BALANCE WAS AVAILA BLE WITH THE ASSESSEE AS ON 1.4.2006, AND IN CASE THE PEAK CREDI T THEORY IS APPLIED ADDITION IF ANY IS TO BE MADE FOR THE YEARS UNDER APPEAL AS SUMMARIZED BELOW; INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 45 A.Y PEAK CREDIT BALANCE INCREMENTAL BALANCE IF ANY, TO BE ADDED 2007 - 08 34,500 34,500 2008 - 09 59,100 26,600 2009 - 10 - - 2010 - 11 1,44,579 85,479 2011 - 12 1,37,940 - 2012 - 13 1,44,180 - 2013 - 14 1,01,366 - 36. RELIANCE WAS ALSO PLACED ON FOLLOWING JUDGMENTS; A. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRAD ESH IN THE CASE OF DHARAMDAS AGRAWAL (1983) 144 ITR 143 DATE D 30.08.1982. B. HONBLE RAJASTHAN HIGH COURT IN THE CASE OF SIND H MEDICAL STORES 117 DTR 497 DATED 12.11.2014. C. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PR ADESH IN THE CASE OF AGRAWAL WAREHOUSING & LEASING LTD (2002 ) 124 TAXMAN 440 INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 46 D. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRAD ESH IN THE CASE OF GOVINDRAM SAKSERIA CHARITY TRUST (1987) 168 TAXMAN 384 ORDER PRONOUNCED ON 05.02.1987. 37. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE DETAILED FINDING OF FACT BY LD. CIT(A). 38. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORD PLACED BEFORE US AND CAREFULLY GONE THROUGH THE JUD GMENTS REFERRED AND RELIED BY BOTH THE PARTIES. 39. THE COMMON ISSUE OF ADDITION FOR UNEXPLAINED CASH DEPOSIT AT RS.9,52,752/- AND RS.31,30,750/- HAS BEEN TAKEN UP BY THE ASSESSEE CHALLENGING THE ORDER OF LD. CIT(A). 40. LD. A.O DURING THE COURSE OF ASSESSMENT PROCEEDING S ASKED THE ASSESSEE TO FILE THE COPIES OF BANK STATEMENT. ON PERUSAL OF THE SAME IT WAS OBSERVED THAT CASH HAS BEEN DEPOSITED O N VARIOUS DATES. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURC E OF THE CASH. VARIOUS SUBMISSIONS WERE FILED BEFORE THE LOWER AUT HORITIES ABOUT THE CASH WITHDRAWN AND DEPOSITED IN BANK ACCOUNTS, INTER BANK WITHDRAWAL AND CASH DEPOSITED, AMOUNT OF INCOME REC EIVED AS TOUR & GUIDE TRAVEL, AMOUNT RECEIVED FROM HUSBAND WHICH IS DULY INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 47 RECONCILED WITH THE CASH FLOW STATEMENT FILED BY TH E HUSBAND SHRI AJAY SINGH BHADURIA. IN THE GIVEN SET OF FACTS AND IN THE LIGHT OF JUDGMENT RELIED AND REFERRED BY LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT IN SUCH CASES WHERE THERE IS A DIFFERENCE OF OPINION ABOUT THE SOURCE OF CASH DEPO SITED AND WITHDRAWN, BETTER OPTION IS TO APPLY THE PEAK CREDI T THEORY BY WAY OF WHICH THE PEAK CREDIT BALANCE IS TAKEN AS AN UNE XPLAINED CASH AMOUNT WHICH NEEDS TO BE ADDED TO THE INCOME OF THE ASSESSEE. VARIOUS ROUNDS OF SUBMISSION/DOCUMENTS HAVE TAKEN PLACE BEFORE THE LOWER AUTHORITIES. CASH FLOW STATEMENTS HAVE B EEN FILED. FOLLOWING WORKING OF PEAK CREDIT IS PLACED BY THE A SSESSEE WHICH HAVE BEEN GONE THROUGH BY US; A.Y PEAK CREDIT BALANCE BALANCE IF ANY, TO BE ADDED 2007 - 08 34,500 34,500 2008 - 09 59,100 26,600 2009 - 10 - - 2010 - 11 1,44,579 85,479 2011 - 12 1,37,940 - 2012 - 13 1,44,180 - 2013 - 14 1,01,366 - INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 48 41. IN SIMILAR SET OF FACTS IN THE CASE OF DHARAMDAS A GRAWAL (1983) 144 ITR 143 DATED 30.08.1982 HON'BLE JURISDICTION AL HIGH COURT FOLLOWING THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF ANANTHRAM VEERSINGHAIAH & CO. (1980) 123 ITR 457 DA TED 15.4.1981 HELD THAT PEAK CREDIT THEORY SHOULD BE AP PLIED. 42. NOW THE ABOVE WORKING OF PEAK CREDIT TO ASSESSMENT YEAR 2011-12 THE INCREMENTAL PEAK CASH AMOUNT IS RS.1,44 ,579/- (34,500 + 24,600+85,479). FROM ASSESSMENT YEAR 201 1-12 ONWARDS THERE IS NO INCREMENTAL PEAK CREDIT BALANCE BECAUSE OF THE TELESCOPING OF PEAK CASH IN THE PRECEDING YEARS IN THE CASH BALANCE FOR ASSESSMENT YEAR 2012-13 AND 2013-14. 43. WE THEREFORE ARE OF THE CONSIDERED VIEW THAT IF AN ADDITION FOR PEAK CASH CREDIT OF RS.1,44,579/- IS SUSTAINED FOR 2012-13 IT WILL TAKE CARE OF THE PEAK CASH CREDIT WITH THE ASSESSEE AND THUS NO ADDITION OF RS.9,52,752/- AND RS. 31,30,750/- IS CA LLED FOR. WE ACCORDINGLY ORDER SO AND SUSTAIN THE ADDITION FOR R S.1,44,579/- FOR UNEXPLAINED CASH FOR ASSESSMENT YEAR 2012-13 AND DE LETE THE ADDITION FOR RS.31,30,750/- FOR ASSESSMENT YEAR 201 3-14. IN THE RESULT GROUND NO.3 FOR ASSESSEES APPEAL FOR ASSESS MENT YEAR 2012- INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 49 13 IS PARTLY ALLOWED AND THAT FOR ASSESSMENT YEAR 2 013-14 IS ALLOWED. 44. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE NAMELY S MT. SUNITA NIGAM FOR ASSESSMENT YEAR 2007-08, 2009-10 AND ASSE SSMENT YEAR 2010-11 RAISING FOLLOWING GROUNDS; IV. SMT. SUNITA NIGAM ITA(SS) NO.121 & 122/IND/2017 ASSESSMENT YEAR 2007-08 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THAT IN THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN W AS STOOD COMPLETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSE SSMENT/RE- ASSESSMENT WERE PENDING ON THE DATE OF INITIATION O F SEARCH AND ALSO IN THE SEARCH, NO INCRIMINATING MATERIAL WAS F OUND SUGGESTING THE SUPPRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK AND THE HOUSEHOLD EXPENSES AND, THEREFORE, IN ABSENCE O F SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSES SMENT IS BAD IN LAW AND HENCE BE CANCELLED AND THE ADDITIONS MADE/S USTAINED AT RS.60000 & RS.26000 BY LEARNED LOWER AUTHORITIES AR E UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED/ON R ECORD, THE LEARNED LOWER AUTHORITIES ARE NOT JUSTIFIED IN THEI R FINDINGS THAT ON THE OPENING DAY OF THE PREVIOUS YEAR I.E. ON 01.04. 2006, THE ASSESSEE DID NOT HAVE ANY CASH-IN-HAND AND THAT SHE WAS A INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 50 PAUPER. THE ASSESSEE SUBMITS THAT HER EXPLANATION THAT SHE HAD ESTIMATED CASH OF RS.200000 ON THE OPENING DAY OF P REVIOUS YEAR I.E. 1.4.2006 BE KINDLY ACCEPTED AND IT BE HELD THA T ADDITIONS MADE/SUSTAINED OF RS.60000 FOR THE UNEXPLAINED CASH DEPOSITS IN BANK AND RS.26000 FOR THE UNEXPLAINED HOUSEHOLD EXP ENSES ARE NEITHER JUSTIFIED NOR LAWFUL, HENCE THE SAID ADDITI ONS BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THAT IN THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN W AS STOOD COMPLETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSE SSMENT/RE- ASSESSMENT WERE PENDING ON THE DATE OF INITIATION O F SEARCH AND ALSO IN THE SEARCH, NO INCRIMINATING MATERIAL WAS F OUND SUGGESTING THE SUPPRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK AND THE HOUSEHOLD EXPENSES AND, THEREFORE, IN ABSENCE O F SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSES SMENT IS BAD IN LAW AND HENCE BE CANCELLED AND THE ADDITIONS MADE/S USTAINED AT RS.40000 & RS.20000 BY LEARNED LOWER AUTHORITIES AR E UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED/ON R ECORD, THE LEARNED LOWER AUTHORITIES ARE NOT JUSTIFIED IN THEI R FINDINGS THAT ON THE OPENING DAY OF THE PREVIOUS YEAR I.E. ON 01.04. 2006, THE ASSESSEE DID NOT HAVE ANY CASH-IN-HAND AND THAT SHE WAS A PAUPER. THE ASSESSEE SUBMITS THAT HER EXPLANATION THAT SHE HAD ESTIMATED CASH OF RS.200000 ON THE OPENING DAY OF P REVIOUS YEAR INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 51 I.E. 1.4.2006 BE KINDLY ACCEPTED AND IT BE HELD THA T ADDITIONS MADE/SUSTAINED OF RS.40000 FOR THE UNEXPLAINED CASH DEPOSITS IN BANK AND RS.20000 FOR THE UNEXPLAINED HOUSEHOLD EXP ENSES ARE NEITHER JUSTIFIED NOR LAWFUL, HENCE THE SAID ADDITI ONS BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THAT IN THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN W AS STOOD COMPLETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSE SSMENT/RE- ASSESSMENT WERE PENDING ON THE DATE OF INITIATION O F SEARCH AND ALSO IN THE SEARCH, NO INCRIMINATING MATERIAL WAS F OUND SUGGESTING THE SUPPRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK AND THE HOUSEHOLD EXPENSES AND, THEREFORE, IN ABSENCE O F SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSES SMENT IS BAD IN LAW AND HENCE BE CANCELLED AND THE ADDITIONS MADE/S USTAINED AT RS.60000 & RS.26000 BY LEARNED LOWER AUTHORITIES AR E UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED/ON R ECORD, THE LEARNED LOWER AUTHORITIES ARE NOT JUSTIFIED IN THEI R FINDINGS THAT ON THE OPENING DAY OF THE PREVIOUS YEAR I.E. ON 01.04. 2006, THE ASSESSEE DID NOT HAVE ANY CASH-IN-HAND AND THAT SHE WAS A PAUPER. THE ASSESSEE SUBMITS THAT HER EXPLANATION THAT SHE HAD ESTIMATED CASH OF RS.200000 ON THE OPENING DAY OF P REVIOUS YEAR I.E. 1.4.2006 BE KINDLY ACCEPTED AND IT BE HELD THA T ADDITIONS MADE/SUSTAINED OF RS.60000 FOR THE UNEXPLAINED CASH DEPOSITS IN INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 52 BANK AND RS.26000 FOR THE UNEXPLAINED HOUSEHOLD EXP ENSES ARE NEITHER JUSTIFIED NOR LAWFUL, HENCE THE SAID ADDITI ONS BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED 45. WE WILL FIRST TAKE UP THE COMMON ISSUE FOR THE THR EE YEARS RAISING GROUND NO.1 THAT NO ADDITION WAS CALLED FOR IN ABSENCE OF ANY INCRIMINATING MATERIAL FOR THE COMPLETED ASSESS MENTS AS ON THE DATE OF SEARCH. WE HAVE DEALT WITH THIS ISSUE IN T HE CASE OF SMT. NEETA BHADURIA IN THE PRECEDING PARAS. BOTH THE P ARTIES HAVE AGREED TO THE FACT THAT THE ISSUE REMAINS THE SAME. WE THEREFORE RELYING ON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF OMPRAKASH GUPTA ITA NOS 277 TO 281/IND/2017 ORDER D ATED 28.2.2019 (SUPRA) HELD IN FAVOUR OF ASSESSEE AFTER CONSIDERING THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF KABUL CHAWLA (2015) 61 TAXMANNN 412 AND ANOTHER JUDGMENT OF BOMBAY HIGH COURT IN THE CASE CIT V/S CONTINENTAL WAREHOUSING CORPORATIO N (2015) 120 DTR (BOM) 89, OBSERVE THAT IN THE CASE OF SMT. SUN ITA NIGAM REGULAR RETURN OF INCOME FOR ASSESSMENT YEAR 2007-0 8, 2009-10 AND 2010-11 WERE FILED ON 27.7.2007, 28.7.2009 AND 30.7.2010 INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 53 RESPECTIVELY. TIME LIMIT FOR ISSUANCE OF NOTICE U/ S 143(2) OF THE ACT STOOD EXPIRED BEFORE THE DATE OF SEARCH AND THEREFO RE THE INTIMATION U/S 143(1)(A) OF THE ACT TAKEN THE SHAPE OF ASSESSM ENT ORDER AND SUCH ASSESSMENT YEAR SHALL BE DEEMED TO BE COMPLET ED, CONCLUDED AND NON ABATED ASSESSMENTS AND SUBSEQUENT TO SEARCH LD. A.O WHILE FRAMING THE ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT ADDITION FOR SUCH ASSESSMENT YEARS 2007-08, 2009-10 AND 2010-11 CAN BE MADE ONLY IF ANY INCRIMINATING MATERIAL IS F OUND DURING THE COURSE OF SEARCH. HOWEVER IN THE CASE OF SMT. SUNI TA NIGAM NO SUCH INCRIMINATING MATERIAL WAS FOUND. ADDITION WA S MADE ONLY ON THE BASIS OF BANK STATEMENT CALLED DURING THE COURS E OF ASSESSMENT PROCEEDINGS AND THEREFORE IN OUR CONSIDERED VIEW LD . A.OS ACTION FOR MAKING THE ADDITION FOR ASSESSMENT YEAR 2007-08 , 2009-10 AND 2010-11 FOR THREE ASSESSMENT YEARS WAS NOT JUSTIFIE D AND DESERVES TO BE DELETED. WE ACCORDINGLY ORDER SO AND ALLOW T HE COMMON ISSUE RAISED BY THE ASSESSEE. 46. GROUND NO.2 RAISED ON THE MERITS OF THE CASE NEEDS NO ADJUDICATION AS IT BECOMES INFRUCTUOUS AS WE HAVE A LREADY DELETED ALL THE ADDITION FOR ASSESSMENT YEAR 2007-08, 2009- 10 AND 2010- INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 54 11 BY ALLOWING COMMON GROUND NO.1 ABOVE. IN THE RE SULT ALL THE THREE APPEALS OF THE ASSESSEE NAMELY SMT. SUNITA NI GAM FOR ASSESSMENT YEARS 2007-08, 2009-10 AND 2010-11 ARE A LLOWED. 47. NOW WE TAKE UP THE APPEAL IN THE CASE OF M/S. PURP LE VACATIONS PVT. LTD FOR ASSESSMENT YEAR 2010-11 RAIS ING FOLLOWING GROUNDS OF APPEAL; V. PURPLE VACATIONS PVT. LTD ITA(SS) NO.120/IND/2017 ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALL Y IRREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE IMPUGNED ASSESSMENT YEAR WAS NON ABATED ASSESSMENT YEAR AND NO INCRIMINATING MATERIAL WAS FOUND IN THE SEARCH, AS IS EVIDENT FROM THE ASSESSMENT ORDER ITSELF, THEREFORE, IN ABSENCE OF THE INCRIMINATING MATERIALS, THE ADDITION MADE AT RS.21 0430 FOR THE UNEXPLAINED INVESTMENT IN THE ASSESSMENT MADE U/S 1 53A R.W.S. 143(3) IS BAD IN LAW AND WITHOUT JURISDICTION, HENC E THE SAID ADDITION BE KINDLY DELETED AND THE ASSESSMENT BE QU ASHED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE ADDITION OF RS.210430 FOR THE ALLEGED UNEXPLAIN ED INVESTMENT IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 55 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOL LY UNLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CANCELLED 48. IN THIS CASE ALSO THROUGH FIRST GROUND ASSESSEE HA S CHALLENGED THE ADDITION AND SUBMITTED THAT THEY WERE NOT BASED ON ANY INCRIMINATING MATERIAL AND WE HAVE GONE THROUGH THE CASE AND CONSIDERING THE FACTS OBSERVE THAT THE ASSESSEE IS PART OF THE GROUP CASE WHEREIN SEARCH WAS CONDUCTED ON 30.11.2012. N O INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE S PREMISES DURING THE COURSE OF SEARCH. HOWEVER DURING THE CO URSE OF ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT CERTAI N DETAILS WERE CALLED FOR ABOUT THE PURCHASE OF LAND MADE BY THE A SSESSEE DURING ASSESSMENT YEAR 2010-11 AND ADDITION OF RS.2,10,430 /- WAS MADE THE DIFFERENCE BETWEEN THE MARKET VALUE AND THE AMO UNT CLAIMED BY THE ASSESSEE FOR PURCHASE OF LAND. THE IMPUGNED AD DITION OF RS.2,10,430/- IS NOT BASED ON ANY INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH. WE THEREFORE APPLYING THE SAME RATIO OF DECISION AS ADOPTED BY US IN THE CASE OF SMT. NE ETA BHADAURIA (ITA (SS) NO.85 TO 89/IND/2017 & ITA NO.270/IND/201 7) OBSERVE THAT RETURN FOR 2010-11 WAS FILED BY THE ASSESSEE O N 6.10.2010. NO INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 56 NOTICE U/S 143(2) OF THE ACT WAS ISSUED UP TO 30.9. 2011. THERE WERE NO PENDING ASSESSMENTS AS ON DATE OF SEARCH AN D ASSESSMENT YEAR 2010-11 COMES UNDER THE CATEGORY OF COMPLETED AND NON ABATED ASSESSMENTS. WE THEREFORE APPLYING THE SAME CONSISTENT APPROACH ARE OF THE VIEW THAT BOTH THE LOWER AUTHOR ITIES ERRED IN MAKING THE ADDITION OF RS.2,10,430/- IN THE HANDS O F THE ASSESSEE. WE DELETE THE SAME BY ALLOWING THE FIRST GROUND OF APPEAL RAISED BY THE ASSESSEE. GROUND NO. 2 & 3 RELATES TO MERITS O F THE CASE BECOMES INFRUCTUOUS AS WE HAVE ALREADY DELETED THE ADDITION. GROUND NO.4 IS GENERAL IN NATURE WHICH NEEDS NO ADJ UDICATION. IN THE RESULT APPEALS OF THE ASSESSEE FOR ASSESSMENT Y EAR 2010-11 IS ALLOWED. 49. NOW WE TAKE UP APPEALS RELATED TO SHRI AJAY SINGH BHADURIA FOR ASSESSMENT YEAR 2008-09 TO 2013-14 RAISING FOLL OWING GROUNDS OF APPEAL; VI. SHRI AJAY BHADAURIA ITA(SS) NO.90 TO 95/IND/2017 & ITA NO.271/IND/201 7 ASSESSMENT YEAR 2007-08 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 57 UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN BANK OF RS.231241 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVI DENCE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.231241 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE A SSESSEE OF RS.231241 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRE SENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AND UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND TH E ADDITION SUSTAINED AT RS.231241 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GI VING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS.231241 B E KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 58 ASSESSMENT YEAR 2008-09 1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMP LETED U/S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSE SSMENT WERE PENDING ON THE DATE OF INITIATION OF SEARCH AND ALS O IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUP PRESSED INCOME IN THE NATURE OF CASH DEPOSIT IN THE BANK OF RS.755500 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVI DENCE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION MADE AT R S.755500 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE A SSESSEE OF RS.755500 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRE SENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS.755500 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING TH E ENTIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GI VING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS.755500 B E KINDLY DELETED. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 59 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U /S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSESSMENT WERE PE NDING ON THE DATE OF INITIATION OF SEARCH AND ALSO IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUPPRESSED INCOME IN THE N ATURE OF CASH DEPOSIT IN THE BANK OF RS.608150 AND, THEREFORE, IN ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSES SMENT IS BAD IN LAW AND THE ADDITION MADE AT RS.2000 IS UNLAWFUL AND UN JUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE A SSESSEE OF RS. 608150 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRES ENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 608150 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING THE EN TIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GIVING TH E BENEFIT OF PEAK INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 60 CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS. 608150 BE KIN DLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LAW THAT THE IMPUGNED ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED IN DUE COURSE BEFORE SEARCH AND SUCH RETURN WAS STOOD COMPLETED U /S 143(1)(A) AND NO PROCEEDINGS FOR ASSESSMENT/RE-ASSESSMENT WERE PE NDING ON THE DATE OF INITIATION OF SEARCH AND ALSO IN THE SEARCH, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE SUPPRESSED INCOME IN THE N ATURE OF CASH DEPOSIT IN THE BANK OF RS.1331500 AND, THEREFORE, I N ABSENCE OF SUCH INCRIMINATING MATERIAL/CONCRETE EVIDENCE, THE ASSES SMENT IS BAD IN LAW AND THE ADDITION MADE AT RS.1331500 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE A SSESSEE OF RS. 1331500 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRE SENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 1331500 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING THE EN TIRE CASH DEPOSITS IN THE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 61 BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GIVING TH E BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS.1331500 BE KIND LY DELETED. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2011-12 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN THE ORDER A RE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED AUTHORITIES, THAT THE CASH DEPOSIT OF THE ASSESSEE OF RS.373160 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY JUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 373160 BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED LOWER AUTHORITIES, THAT THE CASH DEPOSITS OF THE A SSESSEE OF RS. 373160 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRE SENTING UNDISCLOSED INCOME, ARE WHOLLY UNJUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 373160 BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING THE EN TIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GIVING TH E BENEFIT OF PEAK INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 62 CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS. 373160 BE KIND LY DELETED. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2012-13 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED AUTHORITIES, THAT THE CASH DEPOSIT OF THE ASSESSEE OF RS.285410 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY JUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 285410 BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AT ANY EVENT, THERE IS NO JUSTIFICATION IN TREATING THE EN TIRE CASH DEPOSITS IN THE BANK AS THE UNEXPLAINED DEPOSITS, WITHOUT GIVING TH E BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT AT ANY EVENT ONLY THE PEAK AMOUNT MAY BE ADDED AND THE ADDITION OF RS. 285410. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED ASSESSMENT YEAR 2013-14 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE DECISION IS CONTRARY TO LAW, WITHOUT JURISDICTION, MATERIALLY I RREGULAR AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS AND THAT A LL THE ADVERSE INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 63 FINDINGS RECORDED IN MAKING VARIOUS ADDITIONS IN TH E ORDER ARE INCORRECT AND UNLAWFUL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, AND HAVING REGARD TO THE EXPLANATION FURNISHED, THE FIN DINGS OF THE LEARNED AUTHORITIES, THAT THE CASH DEPOSIT OF THE ASSESSEE OF RS.111000 IN HIS BANK ACCOUNT ARE UNEXPLAINED DEPOSITS REPRESENTING UNDISCLOSED INCOME, ARE WHOLLY JUSTIFIED, OPPOSED TO FACTS AN D UNLAWFUL AND, THEREFORE, THE SAME BE QUASHED AND THE ADDITION SUS TAINED AT RS. 111000 BE KINDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, NO JUSTIFICATION IN TREATING THE ENTIRE CASH DEPOSITS IN THE BANK AS UNEXPLAINED DEPOSITS, WITHOUT GIVING THE BENEFIT OF PEAK CREDIT. THE ASSESSEE SUBMITS THAT ANY EVENT ONLY THE PEAK AMOUN T MAY BE ADDED AND THE ADDITION OF RS. 111000 BE KINDLY DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED LOWER AUTHORITIES HAD DRAWN WRONG AND UNLAW FUL INFERENCES ON THE NOTINGS AND JOTTINGS IN THE SEIZED PAPER REFERR ED TO IN THE ORDER (PAGE 54 LPS-2). THE ASSESSEES CONTENTION IS THAT HE IS NOT THE OWNER OF THE PAPER AND HE IS ALSO NOT THE AUTHOR OF THE PAPER & THE NOTINGS AND JOTTINGS DO NOT CONVEY IN ANY MANNER HIS UNDISCLOSE D INCOME. HENCE THE ADDITION MADE AT RS.733000 IS UNLAWFUL &INJUDIC IOUS, HENCE THE SAME BE KINDLY DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234A, 234B & 234C ARE WHOLLY U NLAWFUL AND CONTRARY TO THE PROVISIONS OF THE ACT, HENCE BE CAN CELLED 50. WE WILL FIRST TAKE UP THE APPEAL FOR ASSESSMENT YE AR 2007-08 TO ASSESSMENT YEAR 2011-12. IN THESE YEARS ALSO TWO COMMON INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 64 ISSUES HAVE BEEN RAISED. IN GROUND NO.1 & 2, CHALLE NGING THE ADDITION FOR ASSESSMENT YEAR 2007-08 TO 2011-12 TAK ING A PLEA THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COUR SE OF SEARCH AND THE ADDITIONS FOR ASSESSMENT YEAR 2007-08 TO 20 11-12 CANNOT STAND FOR AS THESE ASSESSMENT YEARS COMES UNDER THE CATEGORY OF COMPLETED AND NON ABATED ASSESSMENTS AND SECONDLY C HALLENGING VARIOUS ADDITION REFERRED IN GROUND NO.3 & 4 RELAT ES TO ADDITION FOR UNEXPLAINED CASH DEPOSIT AND UN ACCOUNTED RECEIPTS WITH AN ALTERNATE PLEA FOR APPLYING THE PEAK CREDIT THEORY. 51. APROPOS THE FIRST COMMON ISSUE AS TO WHETHER THE A DDITION CAN BE MADE IN ABSENCE OF ANY INCRIMINATING MATERIAL FO R THE COMPLETED/NON ABATED ASSESSMENTS, WE FIND THAT THE SAME SET OF FACTS WERE THERE BEFORE US IN THE CASE OF SMT. NEE TA BHADURIA (ITA (SS) NO.85 TO 89/IND/2017 & ITA NO.270/IND/2017) WH EREIN WE HAVE REFERRED AND RELIED ON THE TRIBUNAL DECISION I N THE CASE OMPRAKASH GUPTA V/S ACIT 277 TO 281/IND/2018 IN WHI CH JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF KABUL CHAWLA (2015) 61 TAXMANN 412 WAS FOLLOWED TO ALLOW THE ASSESSEES APPEAL. IN THE LIGHT OF ABOVE DECISIONS AND OUR DISCUSSIONS IN THE PRECEDING INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 65 PARAS WE HAVE EXAMINED THE FACTS OF SHRI AJAY SINGH BHADURIA AND FIND THAT EXCEPT FOR 2010-11 FOR THE REMAINING FOUR ASSESSMENT YEARS I.E. 2007-08, 2008-09, 2009-10 & 2011-12 THE ALLEGED ADDITIONS ARE ONLY FOR THE UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNTS REGULARLY DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME. NO INCRIMINATING MATERIAL IS THERE. REGULAR RETURN S OF INCOME FOR ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 & 2011-1 2 WERE FILED ON/BEFORE THE DUE DATES U/S 139(1) OF THE ACT AS ME NTIONED IN THE ASSESSMENT ORDER. THERE IS NO EVIDENCE ON RECORD T O SHOW THAT NOTICE U/S 143(2) OF THE ACT WERE ISSUED FOR THESE FOUR ASSESSMENT YEARS NOR ANY ASSESSMENT PROCEEDINGS WAS PENDING ON THE DATE OF SEARCH. THEREFORE APPLYING THE SAME CONSISTENT APP ROACH WE ARE OF THE CONSIDERED OPINION THAT NO ADDITION WAS CALLED FOR DURING ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 & 2011- 12 BECAUSE THE ALLEGED ADDITION WAS NOT BASED ON ANY SEIZED IN CRIMINATING MATERIAL. THEREFORE, THE ADDITION OF RS.2,31,241/- , RS.7,55,500/-, RS.6,08,150/- AND RS.3,73,160/- FOR ASSESSMENT YEAR S 2007-08, 2008-09, 2009-10 & 2011-12 RESPECTIVELY DESERVES TO BE DELETED. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 66 52. AS REGARDS ASSESSMENT YEAR 2010-11 IS CONCERNED TH ERE WERE TWO ADDITIONS NAMELY RS.13,31,500/- FOR UNEXPLAINED CASH DEPOSIT AND ADDITION OF RS.9,27,500/- FOR UNACCOUNTED RECEI PTS. AS FAR AS THE ADDITION FOR UN EXPLAINED CASH DEPOSIT OF RS.1 3,31,500/- IS CONCERNED THIS ADDITION IS NOT BASED ON ANY INCRIMI NATING MATERIAL AND AS THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 14 3(2) OF THE ACT FOR ASSESSMENT YEAR 2010-11 STOOD EXPIRED AND ASSESSMEN T PROCEEDINGS FOR ASSESSMENT YEAR 2010-11 WAS NOT PEN DING AS ON THE DATE OF SEARCH 30.11.2012, THUS ASSESSMENT FOR ASSESSMENT YEAR 2010-11 STOOD COMPLETED AND THEREFORE IN VIEW OF OUR ABOVE DECISION FOR ASSESSMENT YEAR 2007-08, 2008-09, 2009 -10 & 2011- 12, THE ADDITION OF RS.13,31,500/- ALSO DESERVES TO BE DELETED AS IT IS NOT BASED ON ANY INCRIMINATING MATERIAL. 53. HOWEVER WITH REGARD TO THE ADDITION FOR UNACCOUNTE D RECEIPT OF RS.9,27,500/- IS CONCERNED, AFTER GOING THROUGH THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AS WELL AS PERUSA L OF RECORD WE FIND THAT PAGE NOS 43 TO 45 OF LPS-3 WAS SEIZED DUR ING THE COURSE OF SEARCH ON 30.11.12 AND ON ONE OF THE PAGE OF THE SE IZED PAPERS VARIOUS AMOUNTS WERE MENTIONED AGAINST THE DATE AND MONTH BUT INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 67 NO YEAR MENTIONED AND IN ANOTHER PAGE THOUGH THE DA TE HAS BEEN MENTIONED THERE ARE VARIOUS AMOUNTS REFLECTED. ASS ESSEE WAS ASKED TO EXPLAIN ALL THESE SEIZED DOCUMENTS WHICH W AS FOUND AT THE PREMISES OF THE ASSESSEE. ASSESSEE COULD NOT EXPLA IN THE SAME AND CLAIMED THE ALLEGED SEIZED PAPERS AS DUMB DOCUMENT WHICH CONTAINS SOME ROUGH JOTTINGS. LD. A.O CAME TO A CO NCLUSION THAT THE SEIZED LOOSE PAPERS SHOWS THE CASH RECEIPTS OF RS.9,25,500/- DURING FINANCIAL YEAR 2009-10. LD. CIT(A) ALSO CON FIRMED THE ADDITION ACCEPTING THE OBSERVATION MADE BY THE LD. A.O. BEFORE US ALSO THE SAME ARGUMENTS HAVE BEEN MADE BY THE ASSES SEE THAT SEIZED DOCUMENT ARE DUMB DOCUMENT. HOWEVER FROM PE RUSAL OF THE SEIZED SHEETS I.E. LPS 43 TO 45 IN OUR VIEW THESE P AGES DO NOT COME UNDER THE CATEGORY OF DUMB DOCUMENT. VARIOUS FINAN CIAL TRANSACTIONS HAVE BEEN WRITTEN WHICH HAS THE MENTIO N OF DATES AT SOME PAGES & MENTION OF SHRI AJAY BHADURIA. IT IS QUITE POSSIBLE THAT SOME EMPLOYEE OF THE ASSESSEE OR THE GROUP COM PANY HAS WRITTEN THESE FIGURES BUT THESE DOCUMENTS WERE FOUN D AT THE ASSESSEES PREMISES AND HAS THE REFERENCE OF ASSESS EE BUT HE FAILED TO EXPLAIN THE TRANSACTIONS IN THESE SEIZED DOCUMEN TS EVEN WHEN INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 68 THE BURDEN LIES HEAVILY ON THE SHOULDERS OF THE ASS ESSEE, WHICH IN THE INSTANT CASE SEEMS NOT TO HAVE BEEN PROPERLY FU LFILLED. AS THE REPLY/SUBMISSION MADE BY THE ASSESSEE/LD. COUNSEL F OR THE ASSESSEE IN OUR VIEW ARE UNSATISFACTORY AND VAGUE, WE FIND NO REASON TO MAKE ANY INTERFERENCE IN THE FINDINGS OF LD. CIT(A) CONFIRMING THE ADDITION FOR UNACCOUNTED CASH RECEIP T OF RS.9,25,500/-. GROUND NO. 5 & 6 OF THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 IS DISMISSED. 54. NOW WE HAVE TO DEAL WITH THE APPEALS BY THE ASSESS E SHRI AJAY BHADURIA FOR ASSESSMENT YEAR 2012-13 & 2013-14. IN THESE TWO APPEALS FIRST COMMON ISSUE RELATES TO UNEXPLAINED C ASH DEPOSIT IN BANK AT RS.2,85,410/- AND RS.1,11,000/- RESPECTIVEL Y. SIMILAR ISSUE CAME UP BEFORE US IN THE CASE OF ASSESSEES W IFE NAMELY SMT. NEETA BHADURIA WHEREIN IN THE SIMILAR GIVEN FACTS A ND CIRCUMSTANCES WE HAVE DECIDED TO APPLY PEAK CREDIT THEORY FOLLOWING THE JUDGMENT OF HONBLE JURISDICTION HIGH COURT OF MADHYA PRADESH IN THE CASE OF DHARAMDAS AGRAWAL (1983) 144 ITR 143 (MP). CASH FLOW STATEMENTS HAVE BEEN FILED BEFORE THE LOWER AU THORITIES AND BEFORE US GIVING DETAILS OF AMOUNT RECEIVED FROM VA RIOUS SOURCES INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 69 AND THE CASH AMOUNT APPLIED. ON THE BASIS OF THESE CASH FLOW STATEMENTS WORKING OF FOLLOWING PEAK CREDIT HAVE BE EN FILED BY THE ASSESSEE. A.Y PEAK CREDIT BALA NCE INCREMENTAL BALANCE 2007 - 08 317018 317018 2008 - 09 356301 39283 2009 - 10 399484 43183 2010 - 11 36 5 562 0 2011 - 12 390526 0 2012 - 13 288503 0 2013 - 14 360103 0 55. IN PREPARING PEAK CASH CREDIT THEORY ASSESSEE HAS TAKEN OPENING CASH BALANCE OF RS.4,00,000/- ON 1.4.2006 FOR WHICH NO EXPLANATION OR DOCUMENTARY EVIDENCES HAVE BEEN FILE D BEFORE THE LOWER AUTHORITY. HOWEVER LOOKING TO THE FACT THAT THE ASSESSEE IS REGULARLY FILING ITS INCOME TAX RETURNS IN THE PAST AND FOR ASSESSMENT YEAR 2007-08 ALSO INCOME OF RS.6,01,077/ - HAS BEEN DISCLOSED. THEREFORE LOOKING TO THE AGE OF THE ASSE SSEE AND A FAIR POSSIBILITY OF ACCUMULATING CASH FOR LAST SO MANY Y EARS THE CLAIM OF OPENING CASH BALANCE OF RS. 4,00,000/- IS ALLOWED. THE INCREMENTAL CASH BALANCE IS TOTALING TO RS.3,99,184/- (3,17,018 /- + 39,283 + 43,183/-) AS DULY ACCEPTED BY THE ASSESEE. AS AGAIN ST THIS INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 70 INCREMENTAL CASH BALANCE OF RS. 3,99,184/- THE ADDI TION CHALLENGED BEFORE US IS OF RS.3,96,410/- . IT IS WELL ESTABLI SHED RULE THAT THE ADDITION TO BE CONFIRMED CANNOT EXCEED THE ADDITION CHALLENGED BEFORE THE TRIBUNAL. ACCUMULATED INCREMENTAL PEAK CASH CREDIT AS ACCEPTED BY THE ASSESSEE IS RS.3,99,184/- WHEREAS T HE ADDITION CHALLENGED BEFORE US IS RS.3,96,410/-. WE ARE THUS INCLINED TO HOLD THAT OUT OF THE INCREMENTAL PEAK CASH CREDIT ACCEPT ED BY THE ASSESSEE WE CONFIRM THE ADDITION FOR UNEXPLAINED CA SH FOR ASSESSMENT YEAR 2012-13 AT RS.2,85,410/- AND RS.1,1 1,000/- FOR ASSESSMENT YEAR 2013-14 AND ACCORDINGLY DISMISS THI S COMMON GROUND OF ASSESSEE SHRI AJAY SINGH BHADURIA FOR ASS ESSMENT YEAR 2012-13 AND 2013-14. 56. NOW WE ARE LEFT WITH GROUND NO.4 FOR ASSESSMENT YE AR 2013- 14 THROUGH WHICH ASSESSEE HAS CHALLENGED THE FINDIN G OF LD. CIT(A) CONFIRMING THE ADDITION OF UNACCOUNTED INVESTMENT/E XPENDITURE OF RS.7,33,000/- MADE ON THE BASIS OF SEIZED PAPER BEA RING PAGE NO.54 OF LPS-2. 57. LD. COUNSEL FOR THE ASSESSEE REITERATING THE SAME SUBMISSION AS MADE BEFORE THE LOWER AUTHORITIES SUBMITTED THAT THE ASSESSEE IS INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 71 NOT THE OWNER OF THE PAPER AND NOR THE AUTHOR OF TH E PAPER. DETAILS MENTIONED ON THE LOOSE SHEET ARE ROUGH NOTINGS AND JOTTINGS AND DO NOT CONVEY IN ANY MANNER ABOUT THE ASSESSEES UNDIS CLOSED INCOME. THIS PIECE OF PAPER IS ALSO NOT SIGNED. 58. PER CONTRA DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUED AND SUPPORTED THE ORDERS OF LOWER AUTHORITIES AND A LSO REFERRED TO THE AGRA PROJECT OF IBD GROUP WHICH IS RELATED TO THE ASSESSEE AND ALSO BROUGHT TO OUR NOTICE THAT IN THE SEIZED PAPER PAGE NO.54 OF LPS-2 BELOW THE WORD AGRA, VARIOUS AMOUNTS HAVE BEE N MENTIONED ALONG WITH THE DATES WHICH CONNOTES THAT THIS SEIZE D PAPER HAVE A DIRECT CONNECTION WITH THE ASSESSEE VIS--VIS AGRA PROJECT. 59. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ASSESSEE IS CHALLENGING THE A DDITION OF UN ACCOUNTED INVESTMENT/EXPENDITURE OF RS.7,33,000/-. THIS ADDITION WAS MADE BY THE LD. A.O ON THE BASIS OF SEIZED PAPE R PAGE-54 OF LPS-2 SEIZED DURING THE COURSE OF SEARCH CONDUCTED ON 30.11.2012 AT IBD GROUP. ASSESSEE IS ONE OF THE DIRECTOR OF I BD GROUP OF COMPANY. LD. COUNSEL FOR THE ASSESSEE REITERATED T HE SAME SUBMISSION BEFORE THE LOWER AUTHORITIES AND BEFORE US THAT THIS INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 72 SHEET OF PAPER MERELY CONTAINS THE ROUGH CALCULATIO NS AND ESTIMATES AND ROUGH JOTTINGS AND HAS GOT NO CONNECT ION WITH THE ASSESSEE AND THEREFORE THIS DOCUMENT IS TO BE TREAT ED AS DUMB DOCUMENT. 60. IN THE REPLY FILED BY THE ASSESSEE ON 22.1.2015 BE FORE THE LD. A.O IT WAS ACCEPTED BY THE ASSESSEE THAT HE IS ENAG ED INTO THE BUSINESS OF REAL ESTATE, PURCHASE AND SALE OF LAND AND BUILDING AND TOUR AND TRAVELS. DURING THE COURSE OF BUSINESS NU MBER OF MEETINGS, DISCUSSIONS, CALCULATIONS, BARGAINING ETC HAVE TO BE MADE. IT IS ALSO NOT DISPUTED BY THE ASSESSEE THAT THE ASSESSEE IS ONE OF THE DIRECTOR IN IBD GROUP COMPANY WHICH RUNS VARIOUS REAL ESTATE PROJECTS AND A PROJECT IN AGRA IS BEING UNDE RTAKEN BY IBD GROUP. AS THE DOCUMENTS WERE FOUND AT THE RESIDENC E OF THE ASSESSEE PRIMARILY THE ONUS IS ON THE ASSESSEE TO E XPLAIN THE DOCUMENT. IN THE SEIZED PAPER AGAINST THE DATES AM OUNTS HAVE BEEN MENTIONED AND ON THE TOP AGRA WORD IS MENTIONE D, AGAINST ONE OF THE FIGURES IBD WORD IS MENTIONED AND TOTAL OF VARIOUS FIGURES IS COMING TO RS.7,33,000/- WHICH HAS BEEN M ARKED AT THE END BY THE PHRASE TO AGRA IN OUR RECORD. INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 73 61. IN OUR CONSIDERED VIEW AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, ASSESSEE CANNOT GO AWAY WITHOUT EXPLAINING THE CONTENTS OF SUCH SEIZED MATERIAL WHI CH HAS SOME BEARING/CONNECTION WITH THE BUSINESS PROJECTS RUN B Y THE GROUP CONCERN. LD. A.O HAS ALSO NOT MADE PROPER ENQUIRY ABOUT IBD PROJECT OF AGRA SO AS TO CORRELATE THE SEIZED MATER IAL SHOWING THE ENTRY OF RS.7,33,000/- WITH THE DETAILS IF ANY OF I BD GROUP. IN OUR VIEW THIS ISSUE OF ADDITION OF RS.7,33,000/- NEEDS TO BE SET ASIDE TO THE FILE OF LD. A.O FOR AFRESH ADJUDICATION SO AS T O DECIDE ACCORDINGLY AS PER THE PROVISIONS OF LAW AFTER CALLING NECESSAR Y INFORMATION FROM THE ASSESSEE ABOUT THE AGRA PROJECT AND IBD GROUP A ND ANY OTHER DETAILS AS NECESSARY TO EXAMINE THE FACTS AFTER PRO VIDING REASONABLE OPPORTUNITY TO THE ASSESSEE TO FILE ITS SUBMISSION IN THIS REGARD. IN THE RESULT GROUND NO.4 OF THE ASSESSEE I.E. SHRI AJ AY SINGH BHADURIA FOR ASSESSMENT YEAR 2013-14 IS ALLOWED FOR STATISTICAL PURPOSES. 62. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR ASSES SMENT YEAR 2013-14 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 63. IN THE RESULT THE APPEALS OF DIFFERENT ASSESSEES ARE DISPOSED INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 74 OFF AS UNDER; S.NO. NAME OF APPELLANT APPEAL NO ASSESSMENT YEAR RESULT 1 M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD (ASSESSEES APPEAL) ITA (SS) NO.79 TO 84/IND/2017 & ITA NO.269/IND/2017 2007 - 08 TO 2013-14 DISMISSED 2 M/S. INDUS HOLIDAYS & TOURS INDIA PVT. LTD (REVENUES APPEAL) ITA (SS) NO.134 & 135/IND/2017 & ITA NO.313/ IND/ 2017 2011 - 12 TO 2013-14 DISMISSED 3 SMT. NEETA BHADAURIA ITA (SS) NO.85 TO 88/IND/2017 ITA(SS) NO.89/IND/2017 ITA NO.270/IND/2017 2007 - 08 TO 2010-11 2012-13 2013-14 ALLOWED PARTLY ALLOWED ALLOWED 4 SMT. SUNITA NIGAM ITA (SS) NO. 121 & 122/IND/2017 2007 - 08 , 2009-10 & 2011-12 ALLOWED 5 M/S. PURPLE VACATIONS PVT. LTD ITA (SS) NO. 120 / IND/2017 2010 - 11 ALLOWED 6 SHRI AJAY SINGH BHADAURIA ITA (SS) NO. 90 , 92, 94 & 95/IND/2017 ITA(SS)NO.93/IND/ 2007 - 08, 2008-09, 2009-10 & 2011-12 2010-11 ALLOWED PARTLY INDUS HOLIDAYS & TOURS INDIA PVT. LTD & OTHERS IT(SS)NO.79 TO 95, 120 TO 122, 134&135, 167 TO 170/ IND/2017 & ITA NO.269 TO 271 & 313, 427/IND/2017 75 2017 ITA(SS)NO.95/IND/ 2017 ITA NO.271/IND/ 2017 2012-13 2013-14 ALLOWED DISMISSED PARTLY ALLOWED FOR STATISTICAL PURPOSES THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.03.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 28 MARCH, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE