Vikram Financial Services Ltd., Kolkata V. D.C.I.T., Central Circle-2(2), Kolkata

ITSSA 81/KOL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6199 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-12-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 11-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IMOKABA JAMIR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Unexplained cash credit; Unexplained investment; Business income; Search and seizure; Loose papers; Document seized; Opportunity of cross examination; Question of law; Accommodation entries; Block assessment; Documents seized
• Section: 143(3); 142(1); 133A; 153A; 14A; 250; 143(2); 264; 48; 73; 13; 153C; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA VIRTUAL COURT HEARING (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI S.S. GODARA, HONBLE JUDICIAL MEMBER) IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD.......................................... APPELLANT TOBACCO HOUSE 1, OLD COURT HOUSE CORNER WEST BENGAL - 700 001 [PAN : AABCV 0336 J] VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), KOLKATA............... RESPONDENT APPEARANCES BY: SHRI A.K. TIBREWAL, FCA & SHRI AMIT AGARWAL, APPEARED ON BEHALF OF THE ASSESSEE. SHRI IMOKABA JAMIR, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 10 TH , 2020 DATE OF PRONOUNCING THE ORDER : JANUARY 12 TH , 2021 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 20, (HEREINAFTER THE LD. CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 11/09/2019, FOR THE ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS A NON-BANKING FINANCIAL COMPANY UNDER THE NAME OF M/S. VIKRAM FINANCIAL SERVICES LTD. AND DERIVED INCOME FROM BUSINESS DURING THE IMPUGNED ASSESSMENT YEAR. IT FILED ITS ORIGINAL RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 27/09/2017, DECLARING TOTAL INCOME OF RS.30,44,646/-. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED AT THE RESIDENCE AND BUSINESS PREMISES OF THE ASSESSEE GROUP. ANOTHER SURVEY OPERATION U/S 133A OF THE ACT WAS CONDUCTED ON THE ISSUE OF PRE-ARRANGED BOGUS LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL LOSS ON 15/09/2015 AT THE OFFICE PREMISES OF VIKRAM GROUP. SUBSEQUENTLY, NOTICE U/S 153A OF THE ACT, WAS ISSUED ON 15/12/2014 AND SERVED UPON THE ASSESSEE ON 19/12/2014 ASKING FOR CORRECT RETURN OF ITS TOTAL INCOME IN RESPECT OF WHICH IT IS ASSESSABLE FOR THE ASSESSMENT YEAR 2012-13. IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT, THE ASSESSEE FILED ITS RETURN FOR THE ASSESSMENT YEAR 2012-13 ON 15/01/2015, DECLARING A LOSS OF TOTAL INCOME OF RS.30,44,646/-. SUBSEQUENTLY, NOTICES U/S 143(2) & 142(1) OF THE ACT, ALONG WITH THE QUESTIONNAIRE WAS ISSUED ON 09/02/2015 AND THE SAME WERE DULY SERVED UPON THE ASSESSEE. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE COMPANY AT RS.52,73,00 MAKING ADDITIONS AND DISALLOWANCES ON THE FOLLOWING ISSUES: A) DISALLOWANCE U/S 14A OF THE ACT. B) BOGUS UNSECURED LOANS. C) COMMISSION ON UN 2.1. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL WITHOUT SUCCESS. THE LD. CIT(A) GRANTED PART RELIEF. 3. FURTHER AGGRIEVED, THE ASSESSEE IS BEFORE US IN APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012 ISSUE OF NOTICE U/S 143(2) OF THE ACT, EXPIRED ON OPERATION HAS TAKEN PLACE ON 07/11/2013 I.E., AFTER THE LAST DATE FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2012 ABATED. HE FURTHER SUBMITS THAT NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH AND THAT ALL THE DISALLOWANCES/ADDITIONS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE REFERRED TO PAGE PARA 2 OF THE ORDER OF THE LD. CIT(A), WHERE THE ASSESSEE HAS RAISED THESE GROUNDS BEFORE THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS NOWHERE IN HIS ORDER FINDING THAT THE ADDITIONS IN QUESTION WERE BASED ON ANY INCRIMINATING MATERIA DURING THE COURSE OF SEARCH. HE RELIED ON THE FOLLOWING CASE SUCH ADDITIONS CANNOT BE MADE IN AN ASSESSMENT THEY ARE NOT BASED ON INCRIMINATING MATERIAL. HE RELIED ON THE FOLLOWING CA PROPOSITION THAT ADDITIONS MADE CANNOT BE SUSTAINED IN SUCH CASES PCIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) CIT VS. VEERPRABHU PCIT VS. SALASAR STOCK BROKING LTD. IN ITAT NO. 264 OF 2016, G.A. NO. 1929 OF 2016 (CALCUTTA HC) ACIT VS. MAJESTIC COMMERCIAL (P) LTD. [2020] 116 TAXMANN.COM 412 (KOL TRIB.) 4.1. ON A QUERY FROM THE BENC MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUESTION WERE MADE. NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE 2 ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE COMPANY AT RS.52,73,00 MAKING ADDITIONS AND DISALLOWANCES ON THE FOLLOWING ISSUES: - DISALLOWANCE U/S 14A OF THE ACT. BOGUS UNSECURED LOANS. COMMISSION ON UN -SECURED LOANS. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL WITHOUT SUCCESS. THE LD. FURTHER AGGRIEVED, THE ASSESSEE IS BEFORE US IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012 - 13 ORIGINALLY ON 27/09/2012 AND THE LAST DATE OF ISSUE OF NOTICE U/S 143(2) OF THE ACT, EXPIRED ON 30/09/2013. THE SEARCH AND SEIZURE OPERATION HAS TAKEN PLACE ON 07/11/2013 I.E., AFTER THE LAST DATE FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2012 ABATED. HE FURTHER SUBMITS THAT NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH AND THAT ALL THE DISALLOWANCES/ADDITIONS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE REFERRED TO PAGE PARA 2 OF THE ORDER OF THE LD. CIT(A), WHERE THE ASSESSEE HAS RAISED THESE GROUNDS BEFORE THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS NOWHERE IN HIS ORDER FINDING THAT THE ADDITIONS IN QUESTION WERE BASED ON ANY INCRIMINATING MATERIA DURING THE COURSE OF SEARCH. HE RELIED ON THE FOLLOWING CASE - LAW FOR THE PROPOSITION THAT SUCH ADDITIONS CANNOT BE MADE IN AN ASSESSMENT MADE U/S 153A/143(3) BASED ON INCRIMINATING MATERIAL. HE RELIED ON THE FOLLOWING CA PROPOSITION THAT ADDITIONS MADE , WHICH ARE NOT BASED ON ANY INCRIMINATING MATERIAL IN SUCH CASES :- PCIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) CIT VS. VEERPRABHU MARKETING LTD. [2016] 73 TAXMANN.COM 149 (CALCUTTA) PCIT VS. SALASAR STOCK BROKING LTD. IN ITAT NO. 264 OF 2016, G.A. NO. 1929 OF 2016 (CALCUTTA HC) ACIT VS. MAJESTIC COMMERCIAL (P) LTD. [2020] 116 TAXMANN.COM 412 (KOL ON A QUERY FROM THE BENC H, THE LD. D/R COULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUESTION NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE COMPANY AT RS.52,73,00 3/- INTERALIA AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL WITHOUT SUCCESS. THE LD. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED HIS RETURN OF 13 ORIGINALLY ON 27/09/2012 AND THE LAST DATE OF THE SEARCH AND SEIZURE OPERATION HAS TAKEN PLACE ON 07/11/2013 I.E., AFTER THE LAST DATE FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT AND HENCE THE ASSESSMENT FOR THE ASSESSMENT YEAR 2012 -13 HAS NOT ABATED. HE FURTHER SUBMITS THAT NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH AND THAT ALL THE DISALLOWANCES/ADDITIONS WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. HE REFERRED TO PAGE 15 PARA 2 OF THE ORDER OF THE LD. CIT(A), WHERE THE ASSESSEE HAS RAISED THESE GROUNDS BEFORE THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS NOWHERE IN HIS ORDER , GIVEN ANY FINDING THAT THE ADDITIONS IN QUESTION WERE BASED ON ANY INCRIMINATING MATERIA L FOUND LAW FOR THE PROPOSITION THAT U/S 153A/143(3) OF THE ACT, AS BASED ON INCRIMINATING MATERIAL. HE RELIED ON THE FOLLOWING CA SE-LAW FOR THE INCRIMINATING MATERIAL PCIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF MARKETING LTD. [2016] 73 TAXMANN.COM 149 (CALCUTTA) PCIT VS. SALASAR STOCK BROKING LTD. IN ITAT NO. 264 OF 2016, G.A. NO. 1929 ACIT VS. MAJESTIC COMMERCIAL (P) LTD. [2020] 116 TAXMANN.COM 412 (KOL - H, THE LD. D/R COULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, BASED ON WHICH, THE ADDITIONS IN QUESTION NEVERTHELESS HE RELIED ON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT THERE IS NO REQUIREMENT OF INCRIMINA ADDITION IN AN ASSESSMENT U/S 153A/143(3) OF THE ACT. HE RELIED ON A FINDING OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. WE WILL DEAL WI 5. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 6. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) DT. 24/02/2020 HAS HELD AS UNDER: THE QUESTION IS WHETHER THE ASSESSEE HAD UNEXPLAINED COULD BE CHARGED TO INCOME TAX IN THE PREVIOUS YEAR IN QUESTION ? WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT QUESTIONS OF FACT AND EVIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : '10. COMING T O THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE ASSESSEE. THE ALLEGED STATEMENTS THAT WERE RECORDED COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF THESE CHAIN OF COMPANIE BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE BANK ACCOUNT OF A THIRD PARTY WAS FROM THE ASSESSEE COMPANY. N OPPORTUNITY TO CROSS ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING MATERIAL. 10.2. THUS, NONE OF THESE MATER OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY INCRIMIN ATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS FOLLOWS: ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSORS ON THIS LEGAL ISSUE. I FIND F DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION MADE BY AO IN THE ASSESSMENT 3 IS NO REQUIREMENT OF INCRIMINA TING MATERIAL FOUND THE COURSE OF SEARCH FOR MAKING AN ADDITION IN AN ASSESSMENT U/S 153A/143(3) OF THE ACT. HE RELIED ON A FINDING OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. WE WILL DEAL WI TH THIS JUDGMENT LATER IN OUR ORDER. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) HAS HELD AS UNDER: - THE QUESTION IS WHETHER THE ASSESSEE HAD UNEXPLAINED CASH CREDIT IN THEIR BOOKS WHICH COULD BE CHARGED TO INCOME TAX IN THE PREVIOUS YEAR IN QUESTION ? WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT QUESTIONS OF FACT AND EVIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : O THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE ASSESSEE. THE ALLEGED STATEMENTS THAT WERE RECORDED FROM DIRECTORS OF THESE COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF THESE CHAIN OF COMPANIE S. THERE IS NO EVIDENCE THAT ANY CASH WAS DEPOSITED BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE BANK ACCOUNT OF A THIRD PARTY WAS FROM THE ASSESSEE COMPANY. N OPPORTUNITY TO CROSS - EXAMINE ANY THESE PARTIES WAS PROVIDED TO THE ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING MATERIAL. 10.2. THUS, NONE OF THESE MATER IAL GATHERED BY THE ASSESSING OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY ATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY PREDECESSORS ON THIS LEGAL ISSUE. I FIND F ROM THE ASSESSMENT ORDER THAT DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION MADE BY AO IN THE ASSESSMENT ORDER PASSED U/S 153A/143(3) ARE NOT BASED IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. TING MATERIAL FOUND THE COURSE OF SEARCH FOR MAKING AN ADDITION IN AN ASSESSMENT U/S 153A/143(3) OF THE ACT. HE RELIED ON A FINDING OF THE HONBLE KERALA HIGH COURT FOR THIS PROPOSITION AND ARGUED THAT THE ORDER OF THE LD. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES PR. CIT VS. RASHMI INFRASTRUCTURE PVT. LTD. IN ITAT 99 OF 2019, G.A. NO. 1211 OF 2019 (CALCUTTA HC) , JUDGMENT CASH CREDIT IN THEIR BOOKS WHICH WE FIND ON SCRUTINY OF PARAGRAPHS 10 AND 10.2 OF THE ORDER OF THE TRIBUNAL THAT QUESTIONS OF FACT AND EVIDENCE WERE DISCUSSED AND ADJUDICATED UPON BY IT. WE SET OUT PARAGRAPHS 10 AND 10.2 OF THE IMPUGNED ORDER OF THE TRIBUNAL IS AS FOLLOWS : O THE ALLEGED CASH TRAIL, NONE OF THE MATERIAL GATHERED BY THE ASSESSING OFFICER BY WAY OF BANK ACCOUNT COPIES OF VARIOUS COMPANIES SUPPOSED TO BE PART OF THE CHAIN OF COMPANIES WAS NOT CONFRONTED TO THE FROM DIRECTORS OF THESE COMPANIES WHICH FORMED THIS ALLEGED CHAIN WERE ALSO NOT BROUGHT ON RECORD. ONLY A GENERAL STATEMENT HAS BEEN MADE. THERE IS NO EVIDENCE WHATSOEVER THAT CASH HAS BEEN ROUTED FROM THE ASSESSEE COMPANY TO ANY OF S. THERE IS NO EVIDENCE THAT ANY CASH WAS DEPOSITED BY THE ASSESSEE COMPANY. MOREOVER, THERE IS NO MATERIAL WHATSOEVER BROUGHT ON RECORD TO DEMONSTRATE THAT THE ALLEGED CASH DEPOSIT MADE IN THE BANK ACCOUNT OF A THIRD PARTY WAS FROM THE ASSESSEE COMPANY. N O EXAMINE ANY THESE PARTIES WAS PROVIDED TO THE ASSESSEE. THE BANK STATEMENTS BASED ON WHICH THE CASH TRAIL WAS PREPARED ARE PART OF THE DISCLOSED DOCUMENTS AND CANNOT BE HELD AS INCRIMINATING IAL GATHERED BY THE ASSESSING OFFICER CAN BE CATERGOIZED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR FOUND DURING THE COURSE OF ANY OTHER OPERATION UNDER THE ACT. THUS, WE HOLD THAT THE ADDITIONS IN QUESTION ARE NOT BASED ON ANY ATING MATERIAL. THE LD. CIT(A) ON PAGE 38 OF HIS ORDER HELD AS ' I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER, DIFFERENT CASE LAWS WAS BROUGHT ON RECORD AND APPEAL ORDERS PASSED BY MY ROM THE ASSESSMENT ORDER THAT DURING THE SEARCH & SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE IT ACT , 1961, INCRIMINATING DOCUMENTS/PAPERS WERE NOT SEIZED. AT LEAST ADDITION ORDER PASSED U/S 153A/143(3) ARE NOT BASED OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEARCH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. T KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE LIGHT OF CBDT'S DECISION OF N AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR ISSUE IN THE CASE OF OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE'S APPEAL ON GRO INCLINED TO ADJUDICATE APPEAL ON GROUND NO. 2 ON MERIT.' THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS BEEN MADE. WE CANNOT REOPEN THE FACTS ANY MORE IN THIS JURISDICTION. N LAW FAR LESS ANY SUBSTANTIAL QUESTION OF LAW IS INVOLVED. 7. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF REPORTED IN [2016] 73 TAXMANN.COM 149 (CALCUTTA) 5. HE RELIED UPON THE FOLLOW THE CASE OF CIT V. IBC KNOWLEDGE PARK (P.) LTD. 'MATERIALS SUCH AS BOOKS OF ACCOUNT, DOCUMENTS OR VALUABLE ASSETS FOUND DURING A SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNICATED TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER SECTION 153C. ON RECEIPT OF T JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN INFERENCE OF AN UNDISCLOSED INCOME I SEARCH OR DURING POST - THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED INCOME IS A SINE QUA NON FOR INVOCATION OF SECTI 6. MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE BASIS OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A. THERE IS N REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. HE, HOWEVER, ADDED THAT THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE 4 OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEARCH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. T KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE LIGHT OF CBDT'S DECISION OF N OT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR ISSUE IN THE CASE OF PR CIT VS KURELE PAPER MILLS PVT. LTD : SLP (C) NO. 34554 OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD (SUPRA), ASSESSEE'S APPEAL ON GRO UND NO 1 IS ALLOWED AND AS SUCH I AM NOT INCLINED TO ADJUDICATE APPEAL ON GROUND NO. 2 ON MERIT.' THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS BEEN MADE. WE CANNOT REOPEN THE FACTS ANY MORE IN THIS JURISDICTION. N LAW FAR LESS ANY SUBSTANTIAL QUESTION OF LAW IS INVOLVED. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VEERPRABHU MARKETING LTD. REPORTED IN [2016] 73 TAXMANN.COM 149 (CALCUTTA) , HELD AS FOLLOWS:- HE RELIED UPON THE FOLLOW ING VIEWS EXPRESSED IN PARAGRAPH 50 OF THE JUDGMENT IN THE CASE OF CIT V. IBC KNOWLEDGE PARK (P.) LTD. [2016] 69 TAXMANN.COM 108 (KAR.) 'MATERIALS SUCH AS BOOKS OF ACCOUNT, DOCUMENTS OR VALUABLE ASSETS FOUND DURING A SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNICATED OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER SECTION 153C. ON RECEIPT OF T HE AFORESAID MATERIAL, THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN INFERENCE OF AN UNDISCLOSED INCOME I S DRAWN DURING THE COURSE OF ENQUIRY, DURING - SEARCH ENQUIRY, SECTION 153C WOULD HAVE NO APPLICATION. THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED INCOME IS A SINE QUA NON FOR INVOCATION OF SECTI ON 153C OF THE ACT.' MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE BASIS OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A. THERE IS N REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. HE, HOWEVER, THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. OF ANY INCRIMINATING DOCUMENTS/PAPERS SEIZED DURING THE SEARCH OPERATION. IT WOULD ALSO NOT TO BE OUT OF CONTEXT TO MENTION HERE THAT IN THIS CASE, ON THE DATE OF SEARCH, NO ASSESSMENT FOR THIS YEAR WAS PENDING. T HEREFORE, KEEPING IN VIEW THE RATIO DECIDED BY THE JURISDICTIONAL BENCH OF KOLKATA TRIBUNAL IN CASE REFERRED ABOVE AND THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD(SUPRA) IN THE OT FILING SLP IN THIS CASE IN THE SUPREME COURT AND KEEPING IN VIEW THE APEX COURT'S DECISION TO DISMISS SLP ON THE SIMILAR : SLP (C) NO. 34554 OF 2015 DT. 07.12.2015, I AM OF THIS VIEW THAT IN ORDER TO MAINTAIN JUDICIAL CONTINUITY ON THIS ISSUE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VEER PRABHU MARKETING LTD UND NO 1 IS ALLOWED AND AS SUCH I AM NOT THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY. A PLAUSIBLE ADJUDICATION ON FACTS HAS BEEN MADE. WE CANNOT REOPEN THE FACTS ANY MORE IN THIS JURISDICTION. N O QUESTIONS OF CIT VS. VEERPRABHU MARKETING LTD. ING VIEWS EXPRESSED IN PARAGRAPH 50 OF THE JUDGMENT IN [2016] 69 TAXMANN.COM 108 (KAR.) :- 'MATERIALS SUCH AS BOOKS OF ACCOUNT, DOCUMENTS OR VALUABLE ASSETS FOUND DURING A SEARCH SHOULD BELONG TO A THIRD PARTY WHICH WOULD LEAD TO AN INFERENCE OF UNDISCLOSED INCOME OF SUCH THIRD PARTY. SUCH AN INFERENCE SHOULD BE RECORDED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE SEARCHED PERSONS AND COMMUNICATED OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY ALONG WITH THE SEIZED DOCUMENTS AND OTHER INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD ISSUE NOTICE UNDER HE AFORESAID MATERIAL, THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH THIRD PARTY WOULD PROCEED AGAINST THE SAID THIRD PARTY. THUS, WHERE NO MATERIAL BELONGING TO A THIRD PARTY IS FOUND DURING A SEARCH, BUT ONLY AN S DRAWN DURING THE COURSE OF ENQUIRY, DURING SEARCH ENQUIRY, SECTION 153C WOULD HAVE NO APPLICATION. THUS, THE DETECTION OF INCRIMINATING MATERIAL LEADING TO AN INFERENCE OF UNDISCLOSED MR. NIZAMUDDIN, LEARNED ADVOCATE, APPEARING FOR THE REVENUE -APPELLANT SUBMITTED THAT IT IS TRUE THAT SECTION 153C READ WITH SECTION 153A PROCEEDS ON THE BASIS OF SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A. THERE IS N O REFERENCE TO ANY SURVEY UNDER SECTION 133A. HE, THEREFORE, DID NOT DISPUTE THE SUBMISSION MADE BY MR.JAIN THAT POWER UNDER SECTION 153C READ WITH SECTION 153A COULD ONLY HAVE BEEN EXERCISED IN THE CASE OF A SEARCH AND REQUISITION. HE, HOWEVER, THERE WAS, IN FACT, A SEARCH AS ALSO A REQUISITION. HE SUBMITTED THAT THERE HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF POWER WAS BAD. ADMITTEDLY, THERE WAS SEARCH AS ALSO REQUISITION. 7. WITH RESPECT TO THE SECOND S NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR MAY BE RELATABLE TO THE ASSESSEE. MR. INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE ASSESSEE. 8. WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE UNDER SECTION 153C READ WITH SECTION 153A. 9. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. 10. WE FIND NO INFIRMITY IN THE AFORESAI THEREFORE, DISMISSED. 8. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF TAX VS. M/S. SALASAR STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, JUDGMENT DT. 24 TH AUGUST, 2016, THE CASE OF CIT VS. VEERPRABHU MARKETING LTD. (SUPRA) REVENUE. 9. THIS BENCH OF THE TRIBUNAL IN THE CASE OF [2020] 116 TAXMANN.COM 412 (KOLKATA 12. WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE CASE OF KABUL CHAWLA (SUPRA) HAD JUDICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE CASES OF CIT V. ANIL KUMAR BHATIA 453/[2013] 352 ITR 493 (DELHI) TAXMANN.COM 227/211 TAXMAN 61 (DELHI) TAXMANN.COM 200/215 TAXMAN 298 (DELHI) DY. CIT [2014] 49 TAXM TAXMANN.COM 465/[2015] 229 TAXMAN 555 (DELHI) [2013] 36 TAXMANN.COM 523/219 TAXMAN 223 (DELHI) LTD. [2014] 49 TAXMANN.COM 172 (BOM.) CORPORATION (NHAVA SHEVA) LTD. ITR 645 (BOM.) AND TAXMANN.COM 103/137 ITD 287 (MUM.) (SB) AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL 5 HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF POWER WAS BAD. ADMITTEDLY, THERE WAS SEARCH AS ALSO REQUISITION. WITH RESPECT TO THE SECOND S UBMISSION ADVANCED BY MR. JAIN, WE CALLED UPON MR. NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR MAY BE RELATABLE TO THE ASSESSEE. MR. NIZAMU DDIN AS UNABLE TO SHOW THAT ANY SUCH INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE -REQUISITE BEFO RE POWER COULD HAVE BEEN EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. WE FIND NO INFIRMITY IN THE AFORESAI D ACT OF THE LEARNED TRIBUNAL. THE APPEAL IS, THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SALASAR STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, AUGUST, 2016, UNDER IDENTICAL CIRCUMSTANCES, FOLLOWED THE JUDGMENT IN CIT VS. VEERPRABHU MARKETING LTD. (SUPRA) AND DISMISSED THE APPEAL OF THE THIS BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. MAJESTIC COMMERCIAL (P) LTD. 116 TAXMANN.COM 412 (KOLKATA -TRIB.), HAS HELD AS FOLLOWS:- WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE (SUPRA) HAD JUDICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE CASES OF CIT V. ANIL KUMAR BHATIA [2012] 24 TAXMANN.COM 98/211 TAXMAN 453/[2013] 352 ITR 493 (DELHI) ; CIT V. CHETAN DAS LACHMAN DAS TAXMANN.COM 227/211 TAXMAN 61 (DELHI) ; MADUGULA VENU V. DIT TAXMANN.COM 200/215 TAXMAN 298 (DELHI) ; CANARA HOUSING DEVELOPMENT CO. V. [2014] 49 TAXM ANN.COM 98 (KAR.) ; FILATEX INDIA LTD. V. CIT TAXMANN.COM 465/[2015] 229 TAXMAN 555 (DELHI) ; JAI STEEL (INDIA) V. ASSTT. CIT [2013] 36 TAXMANN.COM 523/219 TAXMAN 223 (DELHI) ; CIT V. MURLI AGRO PRODUCTS [2014] 49 TAXMANN.COM 172 (BOM.) ; CIT V. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 AND ALL CARGO GLOBAL LOGISTICS LTD. V. DY. CIT TAXMANN.COM 103/137 ITD 287 (MUM.) (SB) . WE ALSO FIND THAT REVENUE'S SLP AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. HAS BEEN SURVEY IN ADDITION THERETO. THEREFORE, IT CANNOT BE SAID THAT EXERCISE OF UBMISSION ADVANCED BY MR. JAIN, WE CALLED UPON MR. NIZAMUDDIN IN VAIN TO SHOW US THE INCRIMINATING MATERIAL, IF ANY, FOUND EITHER DURING THE SEARCH OR DURING THE REQUISITION OR EVEN DURING THE SURVEY WHICH IS OR DDIN AS UNABLE TO SHOW THAT ANY SUCH INCRIMINATING MATERIAL WAS UNEARTHED AT ANY OF THE THREE STAGES PERTAINING TO THE WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT RE POWER COULD HAVE BEEN EXERCISED IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE ALREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES. D ACT OF THE LEARNED TRIBUNAL. THE APPEAL IS, PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/S. SALASAR STOCK BROKING LTD. IN G.A. NO. 1929 OF 2016, ITAT NO. 264 OF 2016, UNDER IDENTICAL CIRCUMSTANCES, FOLLOWED THE JUDGMENT IN AND DISMISSED THE APPEAL OF THE ACIT VS. MAJESTIC COMMERCIAL (P) LTD. WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADUDICATING THE APPEAL IN THE (SUPRA) HAD JUDICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE [2012] 24 TAXMANN.COM 98/211 TAXMAN ; CIT V. CHETAN DAS LACHMAN DAS [2012] 25 ; MADUGULA VENU V. DIT [2013] 29 ; CANARA HOUSING DEVELOPMENT CO. V. ; FILATEX INDIA LTD. V. CIT [2014] 49 ; JAI STEEL (INDIA) V. ASSTT. CIT V. MURLI AGRO PRODUCTS ; CIT V. CONTINENTAL WAREHOUSING [2015] 58 TAXMANN.COM 78/232 TAXMAN 270/374 ALL CARGO GLOBAL LOGISTICS LTD. V. DY. CIT [2012] 23 . WE ALSO FIND THAT REVENUE'S SLP AGAINST AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 ITR (ST.) 4 (SC). 13. WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. SALASAR STOCK BROKING LTD. [G.A. NO. 1929 OF 2016, DATED 24 AFORE SAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. 73 TAXMANN.COM 149/388 ITR 574 (CAL.) 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE REGISTERED AS ITA NO.1775/KOL/2012 AND ALLOWED A CROSS CO- 30/KOL/2013 BOTH PE TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DISCLOSE ANY INCRIMIN VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE AGGRIEVED REVENUE HAS COME UP IN APPEAL. MR. BAGARIA, LEAR NED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU MARKETING LTD.] WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED 'WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY INCRIMINATING MATERIAL IS A PRE UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE A DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRI IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, THEREFORE, DISMISSED.' 14. IN HIS WRITTEN AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS OF THE HON'BLE HIGH COURTS JUSTIFY 2011- 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH JUDGMENT RELIED UPON BY THE LD. CIT, DR IN HIS SUBMISSIONS BUT HAVING REGARD TO THE SPECIFIC FACTS INVOLVED IN THE ASSESSEE' ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS DISTINGUISHABLE. FOR THE FOLLOWING REASONS THEREFORE, WE FIND THAT THE REVENUE'S CASE IS NOT FURTHERED BY THE JUDGMENTS RELIED U (A) IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT [2014] 48 TAXMANN.COM 347/362 ITR 664 (KER.) ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SA JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE 6 WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. SALASAR STOCK BROKING LTD. [G.A. NO. 1929 OF 2016, DATED 24 -8- 2016] ENDORSED THE SAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. 73 TAXMANN.COM 149/388 ITR 574 (CAL.) AND HELD AS FOLLOWS: 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE REGISTERED AS ITA NO.1775/KOL/2012 AND ALLOWED A CROSS - OBJECTION REGISTERED AS 30/KOL/2013 BOTH PE RTAINING TO THE ASSESSMENT YEAR 2005- 06. THE LEARNED TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DISCLOSE ANY INCRIMIN ATING MATERIAL. IN TAKING THE AFORESAID VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE AGGRIEVED REVENUE HAS COME UP IN APPEAL. NED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU MARKETING LTD.] WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED 'WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE - REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED UNDER SECTION 153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE EXPENDITURE, WHICH WERE A LREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UPHELD BY THE CIT(A) BUT THE LEARNED TRI BUNAL DELETED THOSE DISALLOWANCES.' IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, IN HIS WRITTEN AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS OF THE HON'BLE HIGH COURTS JUSTIFY ING ADDITION MADE IN THE ORDER U/S 153A FOR THE AY 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH JUDGMENT RELIED UPON BY THE LD. CIT, DR IN HIS SUBMISSIONS BUT HAVING REGARD TO THE SPECIFIC FACTS INVOLVED IN THE ASSESSEE' S CASE, WE FIND THAT NONE OF THE JUDGMENTS ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS DISTINGUISHABLE. FOR THE FOLLOWING REASONS THEREFORE, WE FIND THAT THE REVENUE'S CASE IS NOT FURTHERED BY THE JUDGMENTS RELIED U PON BY THE LD. CIT, DR. IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT [2014] 48 TAXMANN.COM 347/362 ITR 664 (KER.) , THE FACTS WERE THAT THE ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SA JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. WAS DISMISSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. 2016] ENDORSED THE SAID VIEW OF HON'BLE DELHI HIGH COURT IN KABUL CHAWLA'S CASE. IT ALSO PLACED RELIANCE ON ITS OWN DECISION IN THE CASE OF CIT V. VEERPRABHU MARKETING LTD. [2016] 'SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORDER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY THE REVENUE OBJECTION REGISTERED AS 06. THE LEARNED TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF THE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH ATING MATERIAL. IN TAKING THE AFORESAID VIEW, THE LEARNED TRIBUNAL RELIED UPON A JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT[A] VS. KABUL CHAWLA IN ITA NO.707/2014 DATED 28TH AUGUST, 2014. THE NED ADVOCATE APPEARING FOR THE ASSESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2008 [CIT VS. VEERPRABHU THE KARNATAKA HIGH COURT THAT REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MADE DISALLOWANCES OF THE LREADY DISCLOSED, FOR ONE REASON OR THE OTHER. BUT SUCH DISALLOWANCES WERE NOT CONTEMPLATED BY THE PROVISIONS CONTAINED UNDER SECTION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE BUNAL DELETED THOSE DISALLOWANCES.' IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, IN HIS WRITTEN AND ORAL SUBMISSIONS, THE LD. CIT, DR RELIED ON SEVERAL JUDGMENTS ING ADDITION MADE IN THE ORDER U/S 153A FOR THE AY 12 WHICH ON THE DATE OF SEARCH DID NOT ABATE. AFTER CAREFUL PERUSAL OF EACH JUDGMENT RELIED UPON BY THE LD. CIT, DR IN HIS SUBMISSIONS BUT HAVING REGARD TO THE S CASE, WE FIND THAT NONE OF THE JUDGMENTS ADVANCE THE REVENUE'S CASE SINCE THE FACTUAL AND LEGAL MATRIX OF THE PRESENT CASE IS DISTINGUISHABLE. FOR THE FOLLOWING REASONS THEREFORE, WE FIND THAT THE REVENUE'S CASE IN THE CASE OF SUNNY JACOB JEWELLERS AND WEDDING CENTRE V. DY. CIT , THE FACTS WERE THAT THE ASSESSEE FIRM CONDUCTED BUSINESS OF MANUFACTURE AND SA LE OF GOLD JEWELLERY FROM SIX BUSINESS CONCERNS. IN THE COURSE OF SEARCH EVIDENCE WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF ESTIMATE SLIPS AND IN SUPPORT OF SUCH FACT CORROBORATIVE STATEMENTS OF CASHIER AND STAFF WAS COLLECTED BY THE THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD COLLECTED SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY INITIATED PROCEEDINGS U/S 15 THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT WAS WHETHER IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN RELATION TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE DEPARTMENT TO COLLECT INFORMATION AND EVIDENCE FOR EACH AND EVERY YEAR FOR THE SIX PREVIOUS YEARS IN ORDER TO INITIA SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF PROCEEDINGS U/S 153A FOR ALL SIX YEARS BUT REMITTED THE MATTERS BACK TO THE FILE OF THE AO FOR FRAMING FR EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE INITIATION OF PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE ADDITION IN VIEW OF THE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD BY THE AO WHICH COULD PERSUADE HIM TO UPHOLD THE AO'S ORDER. FROM THE ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT OR DER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF WHICH THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT COULD JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AN INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT WAS NOT APPLICABLE. (B) IN THE CASE OF SMT. DAYAWANTI GUPTA V. CIT 308/[2017] 245 TAXMAN 293/390 ITR 496 ( MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE STATEMENT ADMITTING CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF INCOME AND THAT SHE WAS A PROPRIETOR OF A CONCERN ONLY ON PAPER. ON THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE ASSESSEE'S SON WAS RECORDED IN WHICH HE HAD ADMITTED OF EARNING UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESS OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF 7 WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF ESTIMATE SLIPS AND IN SUPPORT OF SUCH FACT CORROBORATIVE STATEMENTS OF CASHIER AND STAFF WAS COLLECTED BY THE DEPARTMENT. MATERIAL FOUND IN THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD COLLECTED SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY INITIATED PROCEEDINGS U/S 15 3A FOR ALL SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT WAS WHETHER IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN RELATION TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE DEPARTMENT TO COLLECT INFORMATION AND EVIDENCE FOR EACH AND EVERY YEAR FOR THE SIX PREVIOUS YEARS IN ORDER TO INITIA TE PROCEEDINGS UNDER SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF PROCEEDINGS U/S 153A FOR ALL SIX YEARS BUT REMITTED THE MATTERS BACK TO THE FILE OF THE AO FOR FRAMING FR ESH ASSESSMENTS CONSIDERING THE EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE INITIATION OF PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE ADDITION IN VIEW OF THE FACT THAT NO WORTHWHILE MATERIAL OR EVIDENCE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD BY THE AO WHICH COULD PERSUADE HIM TO UPHOLD THE AO'S ORDER. FROM THE ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT DER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF WHICH THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT COULD JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AN INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT WAS NOT APPLICABLE. IN THE CASE OF SMT. DAYAWANTI GUPTA V. CIT [2016] 75 TAXMANN.COM 308/[2017] 245 TAXMAN 293/390 ITR 496 ( DELHI) MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE STATEMENT ADMITTING ADDITIONAL INCOME WAS NOT GIVEN BY HER. SHE HAD CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF INCOME AND THAT SHE WAS A PROPRIETOR OF A CONCERN ONLY ON PAPER. ON THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE ASSESSEE'S SON WAS RECORDED IN WHICH HE HAD ADMITTED OF EARNING UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESS OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. WAS FOUND THAT THE ASSESSEE WOULD MAKE ACTUAL SALES BY ISSUE OF ESTIMATE SLIPS AND IN SUPPORT OF SUCH FACT CORROBORATIVE STATEMENTS OF DEPARTMENT. MATERIAL FOUND IN THE COURSE OF SEARCH PRIMARILY CONCERNED AY 2008 -09. IT WAS FURTHER OBSERVED BY THE AO THAT COMMERCIAL TAX DEPARTMENT HAD COLLECTED SIMILAR INFORMATION FOR THE YEAR 2006 AS WELL. THE AO ACCORDINGLY 3A FOR ALL SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THE QUESTION POSED BEFORE THE HON'BLE HIGH COURT WAS WHETHER IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN RELATION TO ALL SIX ASSESSMENT YEARS, THE AO WAS JUSTIFIED IN INITIATING ASSESSMENT PROCEEDINGS U/S 153A FOR ALL THE SIX YEARS. ON THESE FACTS THE HON'BLE HIGH COURT OBSERVED THAT THERE WAS NO PROHIBITION OR EMBARGO ON THE DEPARTMENT TO COLLECT INFORMATION AND EVIDENCE FOR EACH AND EVERY TE PROCEEDINGS UNDER SECTION 153A OF THE ACT. ANSWERING THIS QUESTION IS FAVOUR OF THE REVENUE, THE HON'BLE KERALA HIGH COURT UPHELD THE INITIATION OF PROCEEDINGS U/S 153A FOR ALL SIX YEARS BUT REMITTED THE MATTERS BACK TO ESH ASSESSMENTS CONSIDERING THE EVIDENCES AND STATEMENTS GATHERED IN THE COURSE OF SEARCH. IN THE PRESENT CASE THE LD. CIT(A) HAS NOWHERE HELD THAT THE INITIATION OF PROCEEDING U/S 153A FOR THE AY 2011/12 WAS INVALID. HE DELETED THE FACT THAT NO WORTHWHILE MATERIAL OR EVIDENCE WAS FOUND AND SEIZED IN THE COURSE OF SEARCH OR WAS BROUGHT ON RECORD BY THE AO WHICH COULD PERSUADE HIM TO UPHOLD THE AO'S ORDER. FROM THE ORDER IMPUGNED IN THE APPEAL WE NOTE THAT NOWHERE IN THE ASSESSMENT DER, AO WAS ABLE TO POINT OUT THAT ANY PARTICULAR INCRIMINATING DOCUMENT OR EVIDENCE FOUND IN THE COURSE OF SEARCH ON THE BASIS OF WHICH THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT COULD JUSTIFIABLY BE MADE. WE THEREFORE FIND THAT THE ON THE FACTS AN D THE ISSUE INVOLVED IN THE PRESENT APPEAL, THE JUDGMENT OF THE HON'BLE KERALA HIGH [2016] 75 TAXMANN.COM DELHI) , THE ADDITIONS WERE MADE ON THE BASIS OF THE ADMISSION MADE BY THE ASSESSEE'S SON U/S 132(4) WITH REFERENCE TO INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. ASSESSEE'S CASE BEFORE THE HON'BLE DELHI HIGH COURT WAS THAT THE ADDITIONAL INCOME WAS NOT GIVEN BY HER. SHE HAD CATEGORICALLY MENTIONED THAT SHE DID NOT HAVE HER OWN SOURCE OF INCOME AND THAT SHE WAS A PROPRIETOR OF A CONCERN ONLY ON PAPER. ON THESE FACTS THE HON'BLE HIGH COURT HELD THAT IT WAS NOT IN DISPUTE THAT IN COURSE OF SEARCH, INCRIMINATING MATERIAL IN RELATION TO OUT OF BOOKS TURNOVER WAS FOUND AND WITH REFERENCE THERETO THE STATEMENT OF THE ASSESSEE'S SON WAS RECORDED IN WHICH HE HAD ADMITTED OF EARNING UNDISCLOSED INCOME. IN THE CIRCUMSTANCES WHEN THE ASSESS EE WAS THE OWNER OF THE PROPRIETARY CONCERN WHICH WAS CARRYING ON THE BUSINESS, THE COURT UPHELD THE REVENUE'S ACTION OF MAKING ADDITION ON ACCOUNT OF PROFITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND THAT IN THE PRESENT CASE NEITHER THE HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INCRIMINATING MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO WHICH THE ADDITION MADE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. (C) IN THE CASE OF B KISHORE KUMAR V. DY. CIT 449/[2015] 229 TAXMAN 614 COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS SWORN STATEMENT U/S 132(4) WITH REFERENCE TO LOOSE PAPERS FOUND IN THE COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS INCOME W WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE ASSESSEE HIMSELF HAD MADE A CLEAR ADMISSION WITH REFERENCE TO INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE ADDI JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT CASE NO INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE NOR ANY PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT HAS NO APPLICATION. (D) IN THE CASE OF CIT V. S. AJIT KUMAR TAXMAN 286/404 ITR 526 (SC) AGAINST THE ASSESSEE, SIMULTANEOUS SURVEY PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, THESE WHICH WERE NOT FOUND RECORDED IN THE BOOKS OF THE ASSESSEE. ON THESE FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. A THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT IS A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE IT A CONDUCTED IN THE PREMISES OF THE ASSESSEE, RELATIVES AND/OR PERSONS WHO ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN T HE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, WITH WHOM THE ASSESSEE HAD TRANSACTIONS, EVIDENCE WAS FOUND REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE SIMULTA 8 PROFITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND THAT IN THE PRESENT CASE NEITHER THE ASSESSEE NOR ANY OF ITS DIRECTORS HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INCRIMINATING MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO WHICH THE ADDITION MADE CAN BE JUSTIFIED. FOR THESE REASONS THEREFORE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. IN THE CASE OF B KISHORE KUMAR V. DY. CIT [2014] 52 TAXMANN.COM 449/[2015] 229 TAXMAN 614 , IT WAS FOUND BY THE HON'BLE MADRAS HIGH COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS SWORN STATEMENT U/S 132(4) WITH REFERENCE TO LOOSE PAPERS FOUND IN THE COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS INCOME W HICH WAS NOT INCLUDED IN HIS RETURNS AND OUTSTANDING LOANS WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE ASSESSEE HIMSELF HAD MADE A CLEAR ADMISSION WITH REFERENCE TO INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE ADDI TION WITH REFERENCE TO ASSESSEE'S OWN STATEMENT WAS HELD TO JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT CASE NO INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE NOR ANY PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT HAS NO APPLICATION. IN THE CASE OF CIT V. S. AJIT KUMAR [2018] 93 TAXMANN.COM 294/255 TAXMAN 286/404 ITR 526 (SC) , WHICH IS ALONG WITH THE SEARCH U/S 132 AGAINST THE ASSESSEE, SIMULTANEOUS SURVEY PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, THESE CONNECTED PERSONS HAD ADMITTED OF RECEIVING PAYMENTS IN CASH WHICH WERE NOT FOUND RECORDED IN THE BOOKS OF THE ASSESSEE. ON THESE FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. A THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT IS A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE IT A CT OR IN ANY PROCEEDINGS SIMULTANEOUSLY CONDUCTED IN THE PREMISES OF THE ASSESSEE, RELATIVES AND/OR PERSONS WHO ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN HE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, WITH WHOM THE ASSESSEE HAD TRANSACTIONS, EVIDENCE WAS FOUND REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE SIMULTA NEOUSLY CONDUCTED AGAINST THE SO- CALLED ENTRY OPERATOR SHRI IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. PROFITS FROM SUCH UNDISCLOSED BUSINESS TRANSACTIONS. WE HOWEVER FIND ASSESSEE NOR ANY OF ITS DIRECTORS HAVE ADMITTED OF EARNING ANY UNDISCLOSED INCOME NOR IN THE IMPUGNED ORDER THE AO HAS BROUGHT ON RECORD ANY TANGIBLE INCRIMINATING MATERIAL WHICH WAS FOUND IN THE COURSE OF SEARCH WITH REFERENCE TO CAN BE JUSTIFIED. FOR THESE REASONS THEREFORE THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IS NOT APPLICABLE. [2014] 52 TAXMANN.COM , IT WAS FOUND BY THE HON'BLE MADRAS HIGH COURT THAT IN THE COURSE OF SEARCH THE ASSESSEE HIMSELF STATED IN HIS SWORN STATEMENT U/S 132(4) WITH REFERENCE TO LOOSE PAPERS FOUND IN THE COURSE OF SEARCH FROM HIS PREMISES THAT HE HAD SEPARATE BUSINESS HICH WAS NOT INCLUDED IN HIS RETURNS AND OUTSTANDING LOANS WERE TO BE RECOVERED WITH INTEREST. THE COURT THUS FOUND THAT THE ASSESSEE HIMSELF HAD MADE A CLEAR ADMISSION WITH REFERENCE TO INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND THEREFORE THE TION WITH REFERENCE TO ASSESSEE'S OWN STATEMENT WAS HELD TO JUSTIFIABLE IN THE ASSESSMENT FRAMED U/S 153A OF THE ACT. IN THE PRESENT CASE NO INCRIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE NOR ANY PERSON BELONGING TO BANKATESH GROUP HAD ADMITTED IN HIS STATEMENT ANY UNDISCLOSED INCOME WITH REFERENCE TO ANY MATERIAL OR EVIDENCE FOUND IN THE COURSE OF SEARCH. ON THESE FACTS THEREFORE THE JUDGMENT OF [2018] 93 TAXMANN.COM 294/255 , WHICH IS ALONG WITH THE SEARCH U/S 132 AGAINST THE ASSESSEE, SIMULTANEOUS SURVEY PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE'S CONTRACTOR AND THE INTERIOR DECORATOR WHO HAD CONSTRUCTED THE ASSESSEE'S HOUSE. IN THE STATEMENTS RECORDED U/S 133A, CONNECTED PERSONS HAD ADMITTED OF RECEIVING PAYMENTS IN CASH WHICH WERE NOT FOUND RECORDED IN THE BOOKS OF THE ASSESSEE. ON THESE FACTS AND EVIDENCES THE QUESTION AROSE WHETHER ANY ADDITION WAS PERMISSIBLE WHILE FRAMING THE ASSESSEE FOR THE BLOCK PERIOD. A LTHOUGH THE HON'BLE APEX COURT UPHELD THE ADDITION MADE, IT ALSO HELD THAT, 'IT IS A CARDINAL PRINCIPLE OF LAW THAT IN ORDER TO ADD ANY INCOME IN THE BLOCK ASSESSMENT, EVIDENCE OF SUCH MUST BE FOUND IN THE COURSE OF THE SEARCH CT OR IN ANY PROCEEDINGS SIMULTANEOUSLY CONDUCTED IN THE PREMISES OF THE ASSESSEE, RELATIVES AND/OR PERSONS WHO ARE CONNECTED WITH THE ASSESSEE AND ARE HAVING TRANSACTION/DEALINGS WITH SUCH ASSESSEE.' APPLYING THIS PRINCIPLE, THE COURT HELD THAT SINCE IN HE SIMULTANEOUS PROCEEDINGS CONDUCTED AGAINST CONNECTED PARTIES, WITH WHOM THE ASSESSEE HAD TRANSACTIONS, EVIDENCE WAS FOUND REGARDING UNDECLARED PAYMENTS, THE ASSESSMENT OF UNDISCLOSED INCOME WAS JUSTIFIED. WE HOWEVER NOTE THAT NO PROCEEDINGS WERE CALLED ENTRY OPERATOR SHRI ANAND SHARMA NOR ANY DOCUMENTARY EVIDENCE SUPPORTING ASSESSEE'S TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND T THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS BEFORE THE HON'BLE APEX COURT IN THE CASE OF S. AJIT KUMAR (SUPRA) AND IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY APPLICATION. (E) AS REGARDS THE LD. CIT, DR ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA V. CIT TAXMANN.COM 172/367 ITR 517 HON'BLE HIGH COURT SIMPLY FOLLOWED THE JUD HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA). TH MATTER OF FRAMING OF ASSESSMENTS U/S 153A FOR UNABATED YEARS HAVE BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T HEL P THE CAUSE OF THE REVENUE. 15. ON THE CONTRARY WE NOTE THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL APPEARS TO BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT V. BEST INFRASTRUCTURE (INDIA) (P.) LTD. THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN FORM OF SHARE APPLICATION THE AO MADE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 2005-06 TO 2009- 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL POSITION THAT UNLESS THERE IS INC ADDITIONS ARE SOUGHT TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN VIEW OF THE AFORESAID LEGAL POSITION, THE DIRECTOR OF THE ASSESSEE HAD ADMITTED UNDISCLOSED INCOME ONLY IN RELATION TO THE YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY OF THE EARLIER SIX YEARS. IT FURTHER OBSERVED THAT NO INC FOUND FROM THE ASSESSEE'S PREMISES WHICH COULD JUSTIFY THE ADDITIONS MADE U/S 68 OF THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT NOT ONLY THE ASSESSEE HAD DENIED NOT KNOWING THE SAID PERSON BUT NEVER AFFORDED THE OPPORTUNITY OF HIS CROSS EXAMINATION TO THE ASSESSEE. IT WAS FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T C BE CONSIDERED TO BE INCRIMINATING EVIDENCE JUSTIFYING THE INFERENCE AGAINST THE ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A M UCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOUS SEARCH OR SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND 9 ANAND SHARMA NOR ANY DOCUMENTARY EVIDENCE SUPPORTING ASSESSEE'S TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND T THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS BEFORE THE HON'BLE APEX COURT IN THE CASE OF S. AJIT KUMAR (SUPRA) AND IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY APPLICATION. AS REGARDS THE LD. CIT, DR 'S RELIANCE ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA V. CIT TAXMANN.COM 172/367 ITR 517 , WE FIND THAT IN THE SAID JUDGMENT, THE HON'BLE HIGH COURT SIMPLY FOLLOWED THE JUD GMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF KABUL CHAWLA (SUPRA). TH E JUDICIAL PRINCIPLES TO BE APPLIED IN THE MATTER OF FRAMING OF ASSESSMENTS U/S 153A FOR UNABATED YEARS HAVE BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T P THE CAUSE OF THE REVENUE. ON THE CONTRARY WE NOTE THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL APPEARS TO BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT V. BEST INFRASTRUCTURE (INDIA) (P.) LTD. [2017] 84 TAXMANN.COM 287/397 ITR 82 THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN FORM OF SHARE APPLICATION MONIES, IN LIEU OF CASH. RELYING ON THE STATEMENT OF MR. T, THE AO MADE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL POSITION THAT UNLESS THERE IS INC RIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS ARE SOUGHT TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN VIEW OF THE AFORESAID LEGAL POSITION, THE HON'BLE HIGH COURT OBSERVED THAT THE DIRECTOR OF THE ASSESSEE HAD ADMITTED UNDISCLOSED INCOME ONLY IN RELATION TO THE YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY OF THE EARLIER SIX YEARS. IT FURTHER OBSERVED THAT NO INC RIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE'S PREMISES WHICH COULD JUSTIFY THE ADDITIONS MADE U/S 68 OF THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT NOT ONLY THE ASSESSEE HAD DENIED NOT KNOWING THE SAID PERSON BUT EVEN THE REVENUE NEVER AFFORDED THE OPPORTUNITY OF HIS CROSS EXAMINATION TO THE ASSESSEE. IT WAS FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T C BE CONSIDERED TO BE INCRIMINATING EVIDENCE JUSTIFYING THE INFERENCE AGAINST THE ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A UCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOUS SEARCH OR SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. ANAND SHARMA NOR ANY DOCUMENTARY EVIDENCE SUPPORTING ASSESSEE'S TRANSACTIONS WITH ANY OF THE ENTRY OPERATORS WAS FOUND FROM THE ASSESSEE'S PREMISES DURING THE COURSE OF SEARCH. WE THEREFORE FIND T HAT THE FACTS OF THE PRESENT CASE WERE MATERIALLY DIFFERENT FROM THE FACTS BEFORE THE HON'BLE APEX COURT IN THE CASE OF S. AJIT KUMAR (SUPRA) AND IN THAT VIEW OF THE MATTER THE SAID JUDGMENT DOES NOT HAVE ANY 'S RELIANCE ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA V. CIT [2014] 52 , WE FIND THAT IN THE SAID JUDGMENT, THE GMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THAT CASE WAS HOWEVER SUBSEQUENTLY DISTINGUISHED BY THE SAME COURT IN ITS LATER JUDGMENT IN THE CASE OF E JUDICIAL PRINCIPLES TO BE APPLIED IN THE MATTER OF FRAMING OF ASSESSMENTS U/S 153A FOR UNABATED YEARS HAVE BEEN ELABORATELY LAID DOWN IN THE SAID LATER JUDGMENT, WHICH WE HAVE ALREADY SET OUT EARLIER. WE THEREFORE HOLD THAT THIS DECISION ALSO DOESN'T ON THE CONTRARY WE NOTE THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL APPEARS TO BE ANSWERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT [2017] 84 TAXMANN.COM 287/397 ITR 82 . IN THIS CASE ALONG WITH ASSESSEE'S SEARCH, SIMULTANEOUS SEARCH WAS ALSO CONDUCTED UPON MR. T WHO ADMITTED TO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE IN MONIES, IN LIEU OF CASH. RELYING ON THE STATEMENT OF MR. T, THE AO MADE ADDITIONS U/S 68 IN THE ASSESSMENTS FRAMED U/S 153A FOR UNABATED AYS 10. ON APPEAL THE HON'BLE HIGH COURT REITERATED THE SETTLED LEGAL RIMINATING MATERIAL QUA EACH OF THE AYS IN WHICH ADDITIONS ARE SOUGHT TO BE MADE, PURSUANT TO SEARCH AND SEIZURE OPERATION, THE ASSUMPTION OF JURISDICTION UNDER SECTION 153A OF THE ACT WOULD BE VITIATED IN LAW. IN HON'BLE HIGH COURT OBSERVED THAT THE DIRECTOR OF THE ASSESSEE HAD ADMITTED UNDISCLOSED INCOME ONLY IN RELATION TO THE YEAR IN WHICH SEARCH WAS CONDUCTED AND NO INCOME WAS ADMITTED IN RELATION TO ANY RIMINATING MATERIAL WAS FOUND FROM THE ASSESSEE'S PREMISES WHICH COULD JUSTIFY THE ADDITIONS MADE U/S 68 OF THE ACT. AS REGARDS THE STATEMENT OF MR. T, THE HON'BLE HIGH COURT NOTED THAT THAT EVEN THE REVENUE NEVER AFFORDED THE OPPORTUNITY OF HIS CROSS EXAMINATION TO THE ASSESSEE. IT WAS FURTHER OBSERVED THAT MR. T HAD ALSO SUBSEQUENTLY RETRACTED HIS STATEMENT. FOR THE REASONS AFORESAID, THE HON'BLE HIGH COURT HELD THAT THE STATEMENT OF MR. T C OULD NOT BE CONSIDERED TO BE INCRIMINATING EVIDENCE JUSTIFYING THE INFERENCE AGAINST THE ASSESSEE IN RELATION TO UNABATED ASSESSMENT. APPLYING THE RATIO LAID DOWN IN SAID JUDGMENT TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE'S CASE IS ON A UCH BETTER FOOTING. IN THE FIRST INSTANCE WE NOTE THAT NO SIMULTANEOUS SEARCH OR SURVEY PROCEEDINGS WERE CARRIED OUT AGAINST MR. ANAND SHARMA WHEN THE SECOND SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT NOWHERE IN THE STATE MENTS OF SO PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT WE FIND THAT PRIOR TO THE COMPLETION OF ASSESSMENT U/S 153A ON 31 HIMSELF NEVER PERSONALLY EXAMINED AN OPPORTUNITY OF CROSS EXAMINATION AFFORDED TO THE ASSESSEE THOUGH THE ADDITION WAS JUSTIFIED SOLELY WITH REFERENCE TO THEIR SO THAT ALTHOUGH THE STATEMENTS OF THE SO 2014 WERE AVAILABLE WITH THE AO'S PREDECESSOR WHO COMPLETED THE ASSESSMENTS U/S 153C ON 30-03- 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH AND THE INFERENCE WAS DRAWN WITH REFERENCE TO THE SAID STATEMENT. HAVING REGARD TO THESE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE I THE PRESENT APPEAL. 16. CONSIDERING THE DECISIONS OF THE JUDICIAL AUTHORITIES ON THE SUBJECT, PARTICULARLY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL, WE HOLD ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS PERMISSIBLE IN THE ORDER U/S 153A UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 10. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HON HIGH COURT. THE JUDGMENT OF THE HONBLE HIGH COURT RELIED UPON BY THE LD. D/R IS DEALT WITH IN THE ORDER OF THIS TRIBUNAL IN THE CASE OF THE UNDISPUTED FACT IS THAT THE ADDITIONS ARE NOT BASED ON FOUND DURING SEARCH AND AS THE ASSESSMENT HAS NOT ABATED APPLYING THE PRINCIPLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT ON THIS ISSUE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE SD/- [ S. S. GODARA ] JUDICIAL MEMBER DATED : 12.01.2021 {SC SPS} 10 SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT MENTS OF SO - CALLED ENTRY OPERATORS THEY HAD ADMITTED OF PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT WE FIND THAT PRIOR TO THE COMPLETION OF ASSESSMENT U/S 153A ON 31 -12 - HIMSELF NEVER PERSONALLY EXAMINED AN Y OF THE SO- CALLED ENTRY OPERATORS NOR WAS OPPORTUNITY OF CROSS EXAMINATION AFFORDED TO THE ASSESSEE THOUGH THE ADDITION WAS JUSTIFIED SOLELY WITH REFERENCE TO THEIR SO - CALLED STATEMENTS. ON THE CONTRARY WE FIND THAT ALTHOUGH THE STATEMENTS OF THE SO -CALLE D ENTRY OPERATORS RECORDED IN 2013 AND 2014 WERE AVAILABLE WITH THE AO'S PREDECESSOR WHO COMPLETED THE ASSESSMENTS U/S 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY INCRIMINATING EVIDENCE FOUND IN THE COURSE OF SEARCH AND THE REFORE NO ADVERSE INFERENCE WAS DRAWN WITH REFERENCE TO THE SAID STATEMENT. HAVING REGARD TO THESE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE I CONSIDERING THE DECISIONS OF THE JUDICIAL AUTHORITIES ON THE SUBJECT, PARTICULARLY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL, WE HOLD THAT IN THE CASE OF UNABATED ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS PERMISSIBLE IN THE ORDER U/S 153A UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HON THE JUDGMENT OF THE HONBLE HIGH COURT RELIED UPON BY THE LD. D/R IS DEALT WITH IN THE ORDER OF THIS TRIBUNAL IN THE CASE OF MAJESTIC COMMERCIAL (P) LTD. (SUPRA). THE UNDISPUTED FACT IS THAT THE ADDITIONS ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH AND AS THE ASSESSMENT HAS NOT ABATED , WE DELETE THE ADDITIONS BY APPLYING THE PRINCIPLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT ON THIS ISSUE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 12 TH DAY OF JANUARY, 2021. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. SEARCH WAS CONDUCTED AGAINST THE ASSESSEE IN MARCH 2016. WE FURTHER FIND THAT CALLED ENTRY OPERATORS THEY HAD ADMITTED OF PROVIDING ACCOMMODATION ENTRIES TO THE ASSESSEE DURING THE RELEVANT YEAR. IN FACT - 2017, THE AO CALLED ENTRY OPERATORS NOR WAS OPPORTUNITY OF CROSS EXAMINATION AFFORDED TO THE ASSESSEE THOUGH THE ADDITION WAS CALLED STATEMENTS. ON THE CONTRARY WE FIND D ENTRY OPERATORS RECORDED IN 2013 AND 2014 WERE AVAILABLE WITH THE AO'S PREDECESSOR WHO COMPLETED THE ASSESSMENTS U/S 2015, HE DID NOT FIND THAT THE SAID STATEMENTS CONSTITUTED ANY REFORE NO ADVERSE INFERENCE WAS DRAWN WITH REFERENCE TO THE SAID STATEMENT. HAVING REGARD TO THESE FACTS, WE THEREFORE FIND THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF BEST INFRASTRUCTURE (INDIA) (P.) LTD. (SUPRA) IS MORE APPROPRIATE I N DECIDING CONSIDERING THE DECISIONS OF THE JUDICIAL AUTHORITIES ON THE SUBJECT, PARTICULARLY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SALASAR STOCK BROKING LTD. THAT IN THE CASE OF UNABATED ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS PERMISSIBLE IN THE ORDER U/S 153A UNLESS IT IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WE ARE BOUND BY THE PROPOSITIONS OF LAW LAID DOWN BY THE HON BLE JURISDICTIONAL THE JUDGMENT OF THE HONBLE HIGH COURT RELIED UPON BY THE LD. D/R IS DEALT MAJESTIC COMMERCIAL (P) LTD. (SUPRA). AS ANY INCRIMINATING MATERIAL , WE DELETE THE ADDITIONS BY APPLYING THE PRINCIPLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT ON THIS ISSUE. SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. VIKRAM FINANCIAL SERVICES LTD TOBACCO HOUSE 1, OLD COURT HOUSE CORNER WEST BENGAL - 700 001 2. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 11 FINANCIAL SERVICES LTD DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -2(2), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES IT(SS)A NO. 81/KOL/2019 ASSESSMENT YEAR: 2012-13 VIKRAM FINANCIAL SERVICES LTD. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES