The Asstt. Commissioner of Income Tax, Central Circle-2(3), Ahmedabad V. The Samor Properties Pvt. Ltd., Ahmedabad

ITSSA 8/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6376 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C DANDAY
• Assessee Lawyers: S N SOPARKAR
• Keywords: Unexplained cash credit; Document seized; Question of law; Documents seized
• Section: 143(3); 142(1); 153A; 115JB; 132; 2; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.(SS)A. NO.08/AHD/2017 (ASSESSMENT YEAR : 2009-10) ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), AHMEDABAD. VS. THE M/S. SAMOR PROPERTIES PVT. LTD., 24K, RANGSAGAR FLATS, P. T. COLLEGE ROAD, PALDI, AHMEDABAD. [PAN NO. AAMMCS 5349 D] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI R.C. DANDAY, CIT-D.R. RESPONDENT BY : SHRI S. N. SOPARKAR & PARIN SHAH, A.R DATE OF HEARING 30.04.2019 DATE OF PRONOUNCEMENT 08.05.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE REVENUE IS DIRECTE D AGAINST THE ORDER DATED 31.10.2016 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-12, AHMEDABAD UNDER SECTION 143(3) R.W.S 153A(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ARISING OUT OF THE ORDER DATED 30.03.2014 PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), AHMEDABAD FOR THE ASSESSMENT YEAR 2009-10. 2. THE FACTS LEADING TO THIS CASE IS THIS THAT IN T HE CASE OF JAYESH STEEL GROUP, SEARCH OPERATION U/S 132 OF THE ACT WAS COND UCTED ON 13.10.2011. THE ASSESSEES CASE WAS ALSO COVERED IN THE SAID SEARCH ACTION. SUBSEQUENTLY, NOTICE IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 2 - U/S 153A WAS SERVED UPON THE ASSESSEE UPON WHICH RE TURN OF INCOME ON 27.12.2013 FOR A.Y. 2009-10 WAS FILED DECLARING TOT AL INCOME AT RS.28,240/- AND BOOK PROFIT UNDER SECTION 115JB OF THE ACT AT R S.28,240/-. NOTICE DATED 17.09.2013 U/S 143(2) WAS SERVED UPON THE ASSESSEE FOLLOWED BY A FURTHER NOTICE U/S 143(2) DATED 02.12 .2013 AND 142(1) ALONG WITH A QUESTIONNAIRE. THE AO DURING THE ASSESSMENT PROCE EDING OBSERVED THAT THE SHARE CAPITAL OF THE ASSESSEE HAS INCREASED BY RS.1 ,79,25,000/- (RS.20,00,000/- FOR A.Y. 2010-11). THE DETAILS/EVIDENCES WERE CALLE D UPON FROM THE APPELLANT WITH REGARD TO THE SAME AND AFTER CONSIDERING THE S AME THE LEARNED AO CONCLUDED THAT THE SHARE CAPITAL INTRODUCED BY THE ASSESSEE COMPANY IN THIS YEAR IS ITS UNEXPLAINED CASH CREDIT AND THE SAME IS ADDED U/S 68. THE AO ALSO ADDITIONALLY BROUGHT TO TAX THE COMMISSION @ 0.5% O F THE AMOUNT SO INTRODUCED, THUS RESULTING INTO TOTAL ADDITIONS AS UNDER: A.Y. TOTAL AMOUNT MADE 2009-10 RS.1,39,94,625/- 2010-11 RS.12,06,000/- THE CONTENTION OF THE APPELLANT WAS THIS THAT BOTH THE ASSESSMENTS OF 2009-10 AND 2010-11 UNDER APPEAL HAD ATTAINED FINAL ITY ON THE DATE OF SEARCH WHICH TOOK PLACE ON 13.10.2013, AND THEREFORE, DID NOT ABATE WITHIN THE MEANING OF SECOND PROVISO TO SECTION 153A, AND FURT HER THAT THE ADDITION ARE NOT BASED ON ANY INCRIMINATING DOCUMENTS FOUND OR S EIZED DURING THE COURSE OF THE SEARCH, AND THEREFORE, IN VIEW OF THIS, THE IMP UGNED ADDITIONS MADE DE HORS SEIZED DOCUMENTS ARE NOT SUSTAINABLE IN THE EYE OF LAW. THE JUDGMENT ON THIS COUNT PRONOUNCED IN THE MATTER OF KABUL CHAWLA REPO RTED IN 61 TAXMANN.COM 412 (DEL) AND SAUMYA CONSTRUCTION IN ITA NO.24/2016 PASSED BY THE JURISDICTIONAL HIGH COURT DATED 14.03.2016 WAS ALSO RELIED UPON BY THE IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 3 - APPELLANT. ULTIMATELY, THE LEARNED CIT(A) DELETED S UCH ADDITION WITH THE FOLLOWING OBSERVATION RELYING UPON THE JUDGMENT PAS SED IN THE MATTER OF SAUMYA CONSTRUCTION (SUPRA): 6.1 THE SEARCH WAS CARRIED OUT ON 13/10/2011. THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) FOR THESE TWO ASSESSMENT YEARS UNDER APPEAL, THEREFORE, HAD INDISPUTABLY EXPIRED AS PER COLUMN 4, MUCH BEFO RE THE DATE OF SEARCH. THE LD, AR IS THEREFORE RIGHT, WHICH OF COURSE HAS ALSO NOT BEEN DISPUTED BY THE AO, THAT THE ASSESSMENT FOR THE YEAR UNDER REFE RENCE HAD ATTAINED FINALITY AS ON THE DATE OF THE SEARCH AND INDEED DID NOT ABATE WITHIN THE MEANING OF SECOND PROVISO TO SECTION 153A. THE LD. AR IS ALSO RIGHT IN PUTTING RELIANCE ON KABUL CHAWLA (SUPRA) AND ON JURISDICTINAL HIGH COUR T DECISION IN SAUMYA CONSTRUCTION (SUPRA) FOR THE PROPOSITION THAT NO AD DITION UNFOUNDED ON AND DE HORS THE INCRIMINATING SEIZED DOCUMENTS COULD HA VE BEEN MADE BY THE AO WHILE REFRAINING U/S 153A/153C THOSE ASSESSMENTS WH ICH HAD REMAINED UNABATED WITHIN THE MEANING OF SECOND PROVISO TO SE CTION 153A. THE AO'S RELIANCE ON SHIVANATH RED HARNARAIN (INDIA) LTD., 1 17ITD 74 (DEL) IN HIS REPORT DATED 21/10/2016, IS, IN MY CONSIDERED OPINI ON, TOTALLY MISPLACED IN VIEW OF THE SAME REMAINING NO LONGER A GOOD LAW AS EMPHATICALLY RULED BY BOTH DELHI HC IN KABUL CHAWALA AND GUJARAT HC IN SA UMYA CONSTRUCTION (SUPRA). THE AR IS THUS RIGHT THAT THE AO ERRED IN 'INTERFERING WITH' ASSESSMENTS WHICH REMAINED UNABATED AS ON THE DATE OF SEARCH. AS SUCH, WHEN THE EXAMINATION OF SEIZED MATERIAL BY THE AO DID NO T LEAD HIM TO ANY INCRIMINATING DOCUMENT/ENTRY FOR THE YEAR UNDER REF ERENCE, HE WAS INDEED DUTY-BOUND TO 'REITERATE' THE TOTAL INCOME WHICH HA D ATTAINED FINALITY BEFORE THE DATE-OF SEARCH, AND HE INDEED EXCEEDED HIS JURI SDICTION IN FIRSTLY TAKING UP THE ROVING ENQUIRIES UNFOUNDED ON INCRIMINATING SEI ZED DOCUMENTS, AND SECONDLY, IN MAKING THE IMPUGNED ADDITIONS. THIS VI EW IN KABUL CHAWLA (SUPRA) HAS BEEN REITERATED BY AHMEDABAD BENCH OF T RIBUNAL IN SAUMY A CONSTRUCTION (SUPRA), WHICH IN TURN, AND EVENTUALLY , HAS ALSO NOW BEEN APPROVED AND REITERATED BY THE HON. GUJARAT HIGH CO URT. IN SAUMYA CONSTRUCTION, AHMEDABAD TRIBUNAL DISAPPROVED THE AO 'S ACTION OF MAKING ADDITION OF RS. 11,05,51,000/- U/S 68 AS UNEXPLAINE D INVESTMENT IN 'UNABATED' ASSESSMENT BEING REFRAINED U/S 153A ON THE GROUND T HAT THE AO'S ACTION OF MAKING ADDITION U/S 68 WAS NOT BASED ON ANY INCRIMI NATING SEIZED DOCUMENTS. TRIBUNAL, WHILE RELYING ON SANJAY AGARWAL 47 TAXMAN N.COM 210 (DEL), OBSERVED THAT THE AO WHILE REFRAMING 'UNABATED' ASS ESSMENT U/S 153A, IS NOT AUTHORIZED TO 'GET INFLUENCED' BY ITEMS OF INCOME O THER THAN THOSE BASED ON MATERIAL 'UNEARTHED DURING THE COURSE OF SEARCH'. T HIS, VIEW OF THE HON. TRIBUNAL IS FURTHER APPROVED AUTHORITATIVELY BY HON . HIGH COURT BY OBSERVING THAT IN 'UNABATED' ASSESSMENTS BEING REFRAINED U/S 153A, IN THE ABSENCE OF INCRIMINATING SEIZED MATERIAL ENABLING THE AO FOR T HE YEAR UNDER' REFERENCE IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 4 - 'TO' ENQUIRE/MAKE ADDITION, THE AO IS DUTY-BOUND ME RELY TO 'REITERATE' THE CONCLUDED ASSESSMENT WHICH HAD ATTAINED FINALITY BE FORE THE DATE OF SEARCH. I WOULD ONLY QUOTE FROM THESE DECISIONS OF HON. TRIBU NAL AND HON. HIGH COURT IN THE CASE OF SAUMYA CONSTRUCTION: SAUMYA CONSTRUCTION PVT. LTD. IT(SS)A. NO. 3/AHD/2O 14 DATED:- 21-8- 2016 '.......6. WE HAVE NOTED THAT, AS LEARNED COUNSEL FAIRLY ACCEPTS, THE GRIEVANCE OF THE ASSESSEE IS NOT AGAINST FRAMING OF THE ASSESSMENT U/S 153A BUT IS CONFINED TO MAKING OF ANY ADDITIONS OR DISAL LOWANCES OTHER THAN ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SE ARCH OPERATIONS. IN EFFECT THUS, ADDITIONS CANNOT BE MADE OTHER THAN ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH OPERATIO NS. THAT PLEA STANDS APPROVED BY A COORDINATE BENCH OF THE TRIBUNAL, IN THE CASE OF SANJAY AGGARWAL VS. DCIT [(2014) 47 TAXMANN.COM 210 (DEL)] ,BY OBSERVING AS FOLLOWS: 13. THE ABOVE EXTRACTED OBSERVATIONS OF THE HON. H IGH COURT, WHICH ARE THOUGH OBITER DICTA, MAKE THE POINT CLEAR THAT WHERE AN ASSESSMENT ORDER HAS ALREADY BEEN PASSED FOR A YEAR (S) WITHIN THE RELEVANT SIX ASSESSMENT YEARS, THEN ALSO THE AO IS DUTY BOUND TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INC OME BUT BY TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY 'UNEAR THED DURING THE SEARCH'. THE EXPRESSION 'UNEARTHED DURING THE SEARC H' IS QUITE SIGNIFICANT TO DENOTE THAT IN RESPECT OF COMPLETED OR NON-PENDING ASSESSMENTS, THE ASSESSING OFFICER IS ALBEIT DUTY B OUND TO ASSESS OR REASSESS THE TOTAL INCOME BUT THERE IS A CAP ON THE SCOPE OF ADDITIONS IN SUCH ASSESSMENT, BEING THE ITEMS OF IN COME 'UNEARTHED DURING THE SEARCH'. IN OTHER WORDS, THE DETERMINATION OF 'TOTAL INCOME; IN RESPECT OF THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS ARE ALRE ADY COMPLETED ON THE DATE OF SEARCH, SHALL NOT BE INFLUENCED BY T HE ITEMS OF INCOME OTHER THAN THOSE BASED ON THE MATERIAL UNEAR THED DURING THE COURSE OF SEARCH................. . 7. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE COORDINATE BENCH. RESPECTFU LLY FOLLOWING THE SAME, AND HAVING NOTED THAT THE ADDITIONS OF RS.11,05,51, 000/- IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH OPER ATIONS ON THE ASSESSED, WE DELETE THE SAID ADDITION.....' SAUMYA CONSTRUCTION ITA NO.24/2016 DATED 14/3/2O16 (GUJARAT HC) IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 5 - '....18. IN THIS CASE, IT IS NOT THE CASE OF THE A PPELLANT THAT ANY INCRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CONSIDERATION WAS FOUND DURING THE COURSE OF SEARCH . AT THE RELEVANT TIME WHEN THE NOTICE CAME TO BE ISSUED UNDER SECTION 153 A OF THE ACT, THE ASSESSEE FILED ITS RETURN OF INCOME. MUCH LATER, AT THE FAG END OF THE PERIOD WITHIN WHICH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE MADE, IN OTHER WORDS, WHEN THE LIMIT FOR FRAMING TH E ASSESSMENT AS PROVIDED WIDER SECTION 153 WAS ABOUT TO EXPIRE, THE NOTICE HAS BEEN ISSUED IN THE PRESENT CASE SEEKING TO MAKE THE PROP OSED ADDITION OF RS.11,05,51,000/-ON THE BASIS OF THE MATERIAL WHICH WAS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEME NT OF ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIKE THE PRESE NT ONE, WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER' AND NO ASSESSME NT OR REASSESSMENT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UND ER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION-132A, WHILE COM PUTING THE TOTAL INCOME OF THE ASSESSEE UNDER, SECTION 153A OF THE A CT, ADDITIONS OR DISALLOWANCES CAN BE MADE ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR REQUISITION. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, HOWEVER, IT IS ON THE BASIS OF SO ME MATERIAL COLLECTED BY THE ASSESSING OFFICER MUCH SUBSEQUENT TO THE SEARCH , THAT THE IMPUGNED ADDITIONS CAME TO BE MADE. 19. ON BEHALF OF THE APPELLANT, IT HAS BEEN CONTEN DED THAT IF ANY INCRIMINATING MATERIAL IS FOUND, NOTWITHSTANDING TH AT IN RELATION TO THE YEAR UNDER CONSIDERATION, NO INCRIMINATING MATERIAL IS FOUND, IT WOULD BE PERMISSIBLE TO MAKE ADDITIONS AND DISALLOWANCE IN R ESPECT OF ALL THE SIX ASSESSMENT YEARS. IN THE OPINION OF THIS COURT, THE SAID CONTENTION DOES NOT MERIT ACCEPTANCE, INASMUCH AS, THE ASSESSMENT I N RESPECT OF EACH OF THE SIX ASSESSMENT YEARS IS A SEPARATE AND DISTINCT ASSESSMENT UNDER SECTION 153AOFTHEACT, AN ASSESSMENT HAS TO BE MADE IN RELATION TO THE SEARCH OR REQUISITION, NAMELY, IN RELATION TO MATER IAL DISCLOSED DURING THE SEARCH OR REQUISITION . IF IN RELATION TO ANY ASSESSMENT YEAR, NO INCRIMINATING MATERIAL IS FOUND, NO ADDITION OR DIS ALLOWANCE CAN BE MADE IN RELATION TO THAT ASSESSMENT YEAR IN EXERCIS E OF POWERS UNDER SECTION 153A OF THE ACT AND THE EARLIER ASSESSMENT SHALL HAVE TO BE REITERATED. IN THIS REGARD, THIS COURT IS IN COMPLE TE AGREEMENT WITH THE VIEW ADOPTED BY THE RAJASTHAN HIGH COURT IN THE CAS E OF JAI STEEL (INDIA), JODHPUR V. ASSISTANT COMMISSIONER OF INCOM E TAX (SUPRA). BESIDES, AS RIGHTLY POINTED OUT BY THE LEARNED COUN SEL FOR THE RESPONDENT, THE CONTROVERSY INVOLVED IN THE PRESENT CASE STANDS CONCLUDED BY THE DECISION OF THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX-1 V. JAYABEN RATILAL SORATHIA (SUPRA) WH EREIN IT HAS BEEN HELD THAT WHILE IT CANNOT BE DISPUTED THAT CONSIDER ING SECTION 1S3A OF THE ACT, THE ASSESSING OFFICER CAN REOPEN AND/OR AS SESS THE RETURN WITH IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 6 - RESPECT TO SIX PRECEDING YEARS; HOWEVER, THERE MUST BE SOME INCRIMINATING MATERIAL AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT TO THE SALE TRANSACTIONS IN THE PARTICULAR ASSESSME NT YEAR. 20. FOR THE FOREGOING REASONS, IT IS NOT POSSIBLE TO STATE THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM ANY LEGAL INFIRMITY SO AS TO GIVE RISE TO A QUESTION OF LAW, MUCH LESS, A SUBSTANTIAL QUESTION OF LAW, WARRANTING INTERFERENCE. THE APPEAL, THEREFORE , FAILS: AND IS, ACCORDINGLY, DISMISSED. 7. IN VIEW OF THE ABOVE, ARID IN VIEW OF BY NOW SE TTLED LEGAL POSITION AS ENUNCIATED BY JURISDICTIONAL HC, THE AO, IN RE-ASSE SSMENTS OF ANY OF UNABATED AND FINALLY CONCLUDED ASSESSMENTS FRAMED U /S 153A/153C, IS NOT. AUTHORIZED TO 'INTERFERE' EXCEPT ON THE BASIS OF AND EXCEPT HAVING BEEN PROMPTED BY INCRIMINATING SEIZED DOCUMENTS RELATABL E TO THAT ASSESSMENT YEAR. IT IS CLEAR THAT THE ADDITIONS AS EXPLAINED SHARE C APITAL MADE BY THE AO ARE NOT BASED ON ANY SEIZED DOCUMENTS. AS SUCH, AS PER EVEN THE AO IN THE ASSESSMENT ORDER, THE ADDITIONS; BASED ON 'POST-SEA RCH' ENQUIRY ON AND VERIFICATION OF INFORMATION WHICH WAS ALREADY AVAIL ABLE IN THE PRE-SEARCH RETURN OF INCOME FILED BY THE APPELLANT WHICH HAD A TTAINT FINALITY AS ON THE DATE OF SEARCH. IT IS ALSO CLEAR THAT THE ASSESSMEN T UNDER REFERENCE HAD ATTAINED FINALITY AND THEREFORE REMAINED UNABATED A S ON THE DATE OF SEARCH. THESE FACTS ARE NOT DISPUTED BY THE AO IN HIS REPOR T DATED 21/10/2016. THUS AND THEREFORE, THE LD. AR IS ABSOLUTELY RIGHT IN CO NTENDING THAT THE ADDITIONS, DE HORS ANY INCRIMINATING SEIZED DOCUMENTS, MADE B Y THE LD. AO IN THESE UNABATED ASSESSMENTS REFRAMED BY HIM U/S 153A, ARE WITHOUT REQUISITE AUTHORITY IN LAW AND ARE THEREFORE NOT SUSTAINABLE IN LAW. IN VIEW OF THIS, AND RESPECTFULLY FOLLOWING THE JURISDICTIONAL HIGH COUR T MANDATE, I HAVE NO HESITATION IN DELETING THE ADDITIONS A UNDER: A.Y. ADDITIONS DELETED 2009-10 RS.1,39,94,625/- 2010-11 RS.12,06,000/- 8. THE APPELLANT WOULD GET RELIEF OF EQUIVALENT AM OUNT. LEGAL GROUND NO.(II) IS THUS ALLOWED FOR BOTH THE YEARS UNDER AP PEAL. 3. AT THE TIME OF HEARING, LEARNED SENIOR COUNSEL A PPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ISSUE HAS ALR EADY BEEN DECIDED IN THE MATTER OF ASST. COMMISSIONER OF INCOME TAX-VS-THE J AYESH STEEL PVT. LTD. IN IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 7 - FAVOUR OF THE ASSESSEE WHEREIN IT WAS DECIDED THAT SINCE THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMINATING MATERIA L FOUND DURING THE SEARCH OPERATION, AS IS THE UNDISPUTED FACTUAL POSITION IN THIS CASE, THE VERY FOUNDATION OF THE ADDITIONS CEASES TO BE SUSTAINABLE IN LAW; A COPY OF THE SAID JUDGMENT HAS ALSO BEEN SUBMITTED BEFORE US. THE LEARNED DR O N THE CONTRARY HAS NOT BEEN ABLE TO CONTROVERT THE CONTENTION MADE BY THE LEARNED SR. COUNSEL APPEARING FOR THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS MADE BY THE RESPECTIVE PARTIES, PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY CONSIDERED THE ORDER PASSED BY THE HONBLE TRIBUNAL IN THE CASE OF ACIT-VS- THE JAYESH STEEL PVT. LTD. IN IT(SS)A NO.49 & 50/AH D/2017 FOR A.Y. 2008-09 & 2010-11 IN WHICH THE SEARCH PROCEEDING WAS CONDUC TED ON 13.10.2011 AND THE ASSESSEE IS ALSO COVERED IN THE SAID SEARCH ACT ION. THE RELEVANT PORTION OF THE SAID JUDGMENT IN DECIDING THE ISSUE IS AS FOLLO WS: 7. THIS ISSUE IS NO LONGER RES INTEGRA. UPHOLDING THE STAND OF THIS TRIBUNAL THAT DURING THE POST SEARCH ASSESSMENT PRO CEEDINGS UNDER SECTION 153 A IN RESPECT OF COMPLETED ASSESSMENTS ADDITION S CANNOT BE MADE OTHER THAN ON THE BASIS OF INCRIMINATING MATERIAL FOUND D URING SEARCH OPERATIONS, HONBLE JURISDICTIONAL HIGH COURT, IN THE CASE OF P CIT VS SAUMYA CONSTRUCTIONS PVT LTD [(2016) 387 ITR 529 (GUJ)] HA S OBSERVED AS FOLLOWS: .IT IS NOT THE CASE OF THE APPELLANT THAT ANY IN CRIMINATING MATERIAL IN RESPECT OF THE ASSESSMENT YEAR UNDER CO NSIDERATION WAS FOUND DURING THE COURSE OF SEARCH. AT THE RELEVANT TIME WHEN THE NOTICE CAME TO BE ISSUED UNDER SECTION 153A OF THE ACT, TH E ASSESSEE FILED ITS RETURN OF INCOME. MUCH LATER, AT THE FAG END OF THE PERIOD WITHIN WHICH THE ORDER UNDER SECTION 153A OF THE ACT WAS TO BE M ADE, IN OTHER WORDS, WHEN THE LIMIT FOR FRAMING THE ASSESSMENT AS PROVIDED UNDER SECTION 153 WAS ABOUT TO EXPIRE, THE NOTICE HAS BEE N ISSUED IN THE PRESENT CASE SEEKING TO MAKE THE PROPOSED ADDITION OF RS.11,05,51,000/- ON THE BASIS OF THE MATERIAL WHIC H WAS NOT FOUND DURING THE COURSE OF SEARCH, BUT ON THE BASIS OF A STATEMENT OF ANOTHER PERSON. IN THE OPINION OF THIS COURT, IN A CASE LIK E THE PRESENT ONE, IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 8 - WHERE AN ASSESSMENT HAS BEEN FRAMED EARLIER AND NO ASSESSMENT OR REASSESSMENT WAS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, WHILE COMPUTING THE TOTAL INCOME OF THE ASSESSEE UNDER SE CTION 153A OF THE ACT, ADDITIONS OR DISALLOWANCES CAN BE MADE ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR R EQUISITION. 8. ONCE IT IS NO IN DISPUTE THAT THE ADDITIONS IN Q UESTIONS ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH OPER ATION, AS IS THE UNDISPUTED FACTUAL POSITION IN THIS CASE, THE VERY FOUNDATION OF THE ADDITIONS CEASES TO BE SUSTAINABLE IN LAW. THAT IS PRECISELY WHAT THE LEARNED CIT(A) HAS HELD. 9. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. RESPECTFULLY FOLLOWING THE SAID JUDGMENT WHICH DEAL T WITH THE MAIN SEARCH PROCEEDING RELATING TO ASSESSEES CASE, WE F IND NO INFIRMITY IN THE ORDER IMPUGNED PASSED BY THE FIRST APPELLATE AUTHORITY SO FAR AS TO WARRANT INTERFERENCE. THE QUESTION IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE, I.E. IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. CON SEQUENTLY, THE APPEALS FAILED AND ACCORDINGLY DISMISSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 08/05/2019 SD/- SD /- ( PRAMOD KUMAR ) ( MS. MADHU MITA ROY ) VICE PRESIDENT JUD ICIAL MEMBER AHMEDABAD; DATED 08/05/2019 PRITI YADAV, SR.PS IT(SS)A NO.08/AHD/2017 ACIT VS. THE M/S. SAMOR PROPERTIES PVT. LTD. ASST.YEAR 2009-10 - 9 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-12, AHMEDABAD. 5. , ! ', #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER , //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 01/05/2019 (DICTATION PAGES 4) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02/05/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 08/02/2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER