Dr. Sukanata Chandra Mallick, Bhubaneswar V. ACIT, Central Circle-2, Bhubaneswar

ITSSA 88/CTK/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7974 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M KESAKAMAT
• Assessee Lawyers: D PARIDAC PARIDA ARS
• Keywords: Search and seizure; Set aside
• Section: 153A; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, A M ( ) ./ IT (SS) A NO. 86 - 91 /CTK/2018 ( / ASSESSMENT YEAR :201 0 - 201 1 TO 2015 - 2016 ) DR. SUKANTA CHANDRA MALLICK, PLOT NO. 212/10, AERODROME AREA, BHUBANESWAR - 751020 VS. ACIT, CENTRAL CIRCLE - 2, BHUBANESWAR ./ PAN N O. : A BKPM 7974 L ( / APPELLANT ) .. ( / RESPONDENT ) AND ( ) ./ IT(SS)A NO. 92 - 9 6 /CTK/2018 ( / ASSESSMENT YEAR :201 3 - 201 4 TO 201 6 - 201 7 ) DR. SAMBEET KUMAR MALLICK, PLOT NO.212/10, AERODROME AREA, BHUBANESWAR - 751020 VS. ACIT, CENTRAL CIRCLE - 2, BHUBANESWAR ./ PAN NO. : A K Q PM 0953 L ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI S.M.KESAKAMAT, CITDR /AS SESSEE BY : SHRI D.PARIDA/C.PARIDA, ARS / DATE OF HEARING : 13 /0 6 /201 9 / DATE OF PRONOUNCEMENT 08 /0 7 /201 9 / O R D E R PER BENCH : TH IS ORDER SHALL GOVERN THE DISPOSAL OF ELEVEN APPEALS FILED BY TWO DIFFERENT ASSESSEES AGAI NST THE SEPARATE ORDER S PASSED BY THE CIT(A) - 2, BHUBANESWAR, ALL DATED 23.06.2018, ARISING OUT OF THE SEPARATE ORDERS PASSED BY THE AO U/S.153A R.W.S.143(3) OF THE ACT, 1961, ALL DATED IT (SS) A NO S.86 - 96 /CTK/201 8 2 26.12.2017 , FOR THE ASSESSMENT YEARS 2010 - 2011 TO 2015 - 2016 IN THE CAS E OF ASSESSEE - DR. SUKANTA CHANDRA MALLICK AND FOR THE ASSESSMENT YEARS 2014 - 2015 TO 2016 - 2017 IN THE CASE OF DR. SAMBEET KUMAR MALLICK, RESPECTIVELY. 2. SINCE THE SOLE ISSUE INVOLVED IN ALL THESE APPEALS IS IDENTICAL, EXCEPT DIFFEREN CE IN FIGURES, THEREFO RE, WITH THE CONSENT OF BOTH THE PARTIES , ALL THE ABOVE APPEALS HAVE BEEN TAKEN FOR HEARING EN MASSE AND DISPOSED OFF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE INTO CONSIDERATION THE FACTS MENTIONED IN ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2010 - 2011 IN IT(SS)A NO. 86 /CTK/201 8 IN THE CASE OF DR. SUKANTA CHANDRA MALLICK , WHEREIN THE ASSESSEE HAS RAISED GROUNDS AS UNDER : - 1. THAT THE ORDER PASSED BY THE LEARNED CIT(A) IS ARBITRARY, EXCESSIVE, CONTRARY TO FACTS AND BAD IN L AW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT ( A ) - II, BHUBANESWAR IS ERRED IN LAW AND FACTS IN UPHOLDING THE ASSESSMENT ORDER PASSED BY THE LD. ACIT, CENTRAL CIRCLE - II, BHUBANESWAR U/S 153A IN SPITE OF THE FACTS THAT NO INCRI MINATING DOCUMENTS WHATSOEVER HAS BEEN FOUND AND SEIZED BY THE SEARCH TEAM DURING THE SEARCH U/S 132 OF THE I.T. ACT, 1961 WHICH IS SINE QUA NON FOR MAKING THE ASSESSMENT U/S 153A THUS MAKING THE ASSESSMENT ARBITRARY, EXCESSIVE, CONTRARY TO FACTS AND BAD I N LAW. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ADDITION OF RS. 3,66,311 ON ACCOUNT OF DIFFERENCE BETWEEN BANK LOAN AMOUNT AS PER THE BALANCE SHEET AND AS PER THE BANK ACCOUNT STATEMENT MADE BY THE LD. ACIT, CENTRAL CIRCLE - II, BHUBA NESWAR WITHOUT BASING ON ANY SEIZED MATERIALS IS LIABLE TO BE DELETED. 4. THAT THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND FACTS IN MAKING ADDITION OF RS. 3,66,311 ON ACCOUNT OF DIFFERENCE IN LOAN AMOUNT AS PER THE BALANCE SHEET AND IT (SS) A NO S.86 - 96 /CTK/201 8 3 AS PER THE BANK A CCOUNT STATEMENT TO WHICH THE LD. CIT[A) - II HAS WRONGLY CONFIRMED WITHOUT CONSIDERING THE FACTS/DETAILS PROVIDED DURING THE ASSESSMENT PROCEEDINGS IS LIABLE TO BE DELETED. 3. CONCISE FACTS EMANATE FROM THE ORDERS OF AUTHORITIES BELOW LEADING TO THE FILING OF THE ABOVE APPEALS BY BOTH THE ASSESSEE S , ARE THAT THE ASSESSEE S , ARE INDIVIDUAL , DERIVE INCOME FROM HOUSE PROPERTY & BUSINESS. THERE WAS A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE I. T. ACT, 1961 CONDUCTED ON DT.12.03.2016 IN THE CASE OF THE GROUP NAMED 'DR. S. C. MALLIK & GROUP' TO WHICH BOTH THE A SSESSEE S BELONG. SUBSEQUENTLY, THE CASE S OF BOTH THE ASSESSEE S W ERE SELECTED FOR SCRUTINY ASSESSMENT U/S. 153A OF THE I. T. ACT, 1961 . THEREAFTER , THE AO ISSUED NOTICE U/S.153A OF THE ACT TO BOTH THE ASSE SSEE S . FINALLY, THE AO COMPLETED ASSESSMENT U/S.153A R.W.S.143(3) OF THE ACT MAKING ADDITION OF RS.3,66,311/ - ASSESSING TOTAL INCOME OF THE ASSESSEE AT RS.8,62,031/ - FOR THE ASSESSMENT YEAR 2010 - 2011 . SIMILARLY, THE AO MADE ADDITIONS FOR THE OTHER ASSESSME NT YEARS UNDER CONSIDERATION IN THE CASES OF BOTH THE ASSESSEES AS MENTIONED IN THEIR RESPECTIVE GROUNDS OF APPEAL RAISED BEFORE THE TRIBUNAL IN FORM NO.36. 4. AGGRIEVED BY THE ASSESSMENT ORDER, BOTH THE ASSESSEE S APPROACHED THE CIT(A). HOWEVER, THE CIT(A) , IN APPEAL, UPHELD THE ADDITION MADE BY THE AO FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION IN ITS SEPARATE ORDERS. THE CIT(A) ALSO DISMISSED THE ADDITIONAL GROUND RAISED BY BOTH THE ASSESSEE S IN THEIR RESPECTIVE APPEALS WITH REGARD TO THE SUSTAINABIL ITY OF ADDITIONS MADE IN THE ASSESSMENT FRAMED U/S.153A OF THE ACT IN ABSENCE OF INCRIMINATING MATERIAL. IT (SS) A NO S.86 - 96 /CTK/201 8 4 5. NOW, BOTH THE ASSESSEE S ARE IN FURTHER APPEAL S BEFORE THE TRIBUNAL AGITATING THE ADDITIONS MADE BY THE AO AND UPHELD BY THE CIT(A) FOR THE RESPECTIV E ASSESSMENT YEARS UNDER CONSIDERATION , ARE NOT SUSTAINABLE IN ABSENCE OF INCRIMINATING MATERIALS . 6. LD. AR, BEFORE US, SUBMITTED THAT THE CIT(A) HAS ERRED IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE S THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH CONDUCTED U/S.132 OF THE ACT ON 12.03.2016 AND FURTHER THE ADDITION S MADE IN RESPECT OF ALL THE ASSESSMENT YEAR S UNDER CONSIDERATION ARE NOT SUSTAINABLE AS THEY ARE UNABATED. IT WAS ALSO THE CONTENTION OF LD. AR BEFORE US THAT BEING TH E APPELLATE AUTHORITY, THE CIT(A) IS BOUND TO FOLLOW THE LEGAL HIERARCHY OF APPLICABILITY OF DECISIONS OF HIGHER FORUMS. EVEN THE CIT(A) HAS NOT CONSIDERED THE JUDICIAL PRONOUNCEMENTS FAVOURING THE ASSESSEE S IN THE VERY SAME ISSUE, RELIED UPON BY THE ASSES SEE S , WHICH HAVE BEEN REPRODUCED BY THE CIT(A) IN PARA 6.2 AT PAGE 4 OF ITS ORDER FOR THE ASSESSMENT YEAR 2010 - 2011 . THE LD. AR STRENUOUSLY SUPPORTED HIS CASE RELYING ON PLETHORA OF JUDICIAL DECISIONS PLACED IN THE PAPER BOOK AND PRAYED FOR ALLOWING THE APPEALS OF BOTH THE ASSESSEES FOR THE ASSESSMENT YEARS UNDER CONSIDERATION . TO SUPPORT HIS CONTENTIONS, LD. AR RELIED ON THE FOLLOWING JUDICIAL DECISIONS : - I) CIT VS. KABUL CHAWLA, [2015] 61 TAXMANN.COM 412 (DELHI); AND II) CIT VS. SINHGAD TECHNICAL EDU CATION SOCIETY, [2017] 84 TAXMANN.COM 290(SC) 7. DEFENDING TO THE ARGUMENTS OF LD. AR, BEFORE US, LD. DR RELIED ON THE ORDER OF BOTH THE AUTHORITIES BELOW IN RESPECT OF CONFIRMING THE IT (SS) A NO S.86 - 96 /CTK/201 8 5 ADDITION MADE BY THE AO AND SUBMITTED THAT THERE WERE NO DETAILS FURNIS HED BY THE ASSESSEE S TO SUBSTANTIATE THEIR CLAIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE RESPECTIVE YEARS UNDER APPEAL . WITH REGARD TO DISMISSAL OF ADDITIONAL GROUND , LD.DR SUBMITTED THAT THE ORDER HAS BEEN PASSED BASED ON THE SEIZED MATERIAL. LD. DR ALSO DREW OUR ATTENTION TO THE OBSERVATIONS MADE BY THE CIT(A) AT PARA 6.3 IN THE APPELLATE ORDER FOR THE ASSESSMENT YEAR 2010 - 2011, WHEREIN THE CIT(A) HA S CONSIDERED THE JUDICIAL DECISIONS OF THE HONBLE HIGH COURT OF KERALA IN THE CASE OF E.N.GOPA KUMAR VS. CIT [2016] 75 TAXMANN.COM 215 (KERALA) AND THE DECISION OF HON BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUMAR ARORA [2014] 52 TAXMANN.COM 172 (ALLAHABAD). ACCORDINGLY, LD.DR PRAYED FOR DISMISSAL OF ALL THE APPEALS OF THE ASSESSEE. 8 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE , THE ISSUE RAISED BY BOTH THE ASSESSEES IN THEIR RESPECTIVE APPEALS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION IS WITH REGARD TO THE ASSESSMENT U/S.153A OF THE ACT IS NOT MAINTAINABLE AS NO INCRIMINATING DOCUMENTS WHATSOEVER HAS BEEN FOUND OR SEIZED BY THE SEARCH TEAM DURING THE SEARCH CONDUCTED U/S.132 OF THE ACT. WE FOUND THAT THE LD. AR VEHEMENTLY EMPHASIZE D THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH , HENCE NO ADDITION CAN BE MADE. IT WAS ALSO THE CONTENTION OF LD. AR THAT THE CIT(A) REL YING ON THE DECISIONS OF HON'BLE KERALA AND ALLAHABAD HIGH COURTS HAS DISMISSED THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IN RESPECT OF NO INCRIMINATING MATER IAL WAS FOUND IN THE COURSE OF SEARCH AND THE ASSESSMENT U/S.153A HAS TO BE IT (SS) A NO S.86 - 96 /CTK/201 8 6 COMPLETED AS PER THE ORIGINAL ASSESSMENT ORDER. DURING THE COURSE OF HEARING, LD. AR DREW OUR ATTENTION TO THE PARA 2 OF THE ASSESSMENT ORDER AND SUBMITTED THAT THE AO IN THE LAST TWO LINES HAS MENTIONED THAT CASE OF THE ASSESSEE WAS DISCUSSED DURING THE ASSESSMENT PROCEEDINGS WITH THE AR OF THE ASSESSEE WITH REFERENCE TO THE BOOKS OF ACCOUNTS SEIZED RELATING TO THE GROUP OF THE CASES AS A WHOLE. FOR THE COMPLETENESS OF OUR ORDER, W E WOULD LIKE TO REPRODUCE THE PARA 2 OF THE ASSESSMENT ORDER , WHICH READS AS UNDER : - 02. NOTICE U/S.153A WAS ISSUED ON 31.01.2017. THE A.R. OF THE ASSESSEE, MS. SWATI KEJIRWAL, FCA APPEARED AND SUBMITTED A COPY OF THE RETURN U/S.153A FILED ON 10.03.2017 SHOWING A TOTAL INCOME AT RS.2,05,420/ - . HERE TOTAL INCOME U/S.153A IS EQUAL TO THAT SHOWN IN THE RETURN U/S.139(1). ACCORDINGLY, NOTICES US/S.143(2) & U/S.142(1) ARE ISSUED AND SERVED. THE A.R., MS. SWATI KEJIRWAL, FCA APPEARED FROM TIME TO TIME AND THE C ASE IS DISCUSSED WITH HER WITH REFERENCE TO THE FACTS IN THE RETURN OF INCOME AND ALSO WITH REFERENCE TO THE BOOKS OF ACCOUNTS SEIZED RELATING TO THE GROUP OF THE CASES AS A WHOLE . 9. FURTHER, THE LD. AR DREW OUR ATTENTION TO THE PANCHANAMA FILED IN THE PAPER BOOK AT PAGES 8 TO 23 AND SUBMITTED THAT NO SUCH BOOKS OF ACCOUNTS HAS BEEN SEIZED NEITHER ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH TO ENABLE THE AO TO INVOKE THE PROVISIONS OF SECTION 153A OF THE ACT. ACCEPTING THE CONTENTION OF LD. AR, WE HAVE GONE THROUGH THE PANCHANAMA FILED BY THE ASSESSEE IN THE PAPER BOOK RUNNING FROM PAGES 8 TO 23 AND WE FOUND THAT IN THE PANCHANAMA PREPARED ON 12.03.2016 IN PARA NO.5(A)(I), IT IS MENTIONED THAT BOOKS OF ACCOUNTS AND DOCUMENTS WERE FOUN D AND SEIZED AS PER ANNEXURE A (01 SHEETS) AND IN ANNEXURE - 1 FILED AT PAGE 10 OF THE PAPER BOOK , CONTAIING LIST/INVENTORY OF A/C BOOKS ETC. FOUND/SEIZED, IT IS MENTIONED THAT BUNCH OF IT (SS) A NO S.86 - 96 /CTK/201 8 7 LOOSE SHEET FOUND/SEIZED AND MARKED AS SCMR - 01. SIMILARLY, IN THE PA NCHANAMA PREPARED ON 14.03.2016 & 17.03.2016, IN PARA (I) OF SL.NO.5(A) , WITH REGARD TO WHAT ARE FOUND AND SEIZED DURING THE COURSE OF SEARCH, THE PANCHAS HAVE PUT A CROSS MARK ON THE SAME, MEANING THEREBY THERE IS NO MENTION ABOUT THE BOOKS OF ACCOUNTS FO UND OR SEIZED DURING THE COURSE OF SEARCH . LD. DR WAS UNABLE TO ESTABLISH THAT THE LOOSE SHEETS CAN BE TREATED AS BOOKS OF ACCOUNTS, WHEREAS IN THE ASSESSMENT ORDER THE AO HAS MENTIONED THAT THE BOOKS OF ACCOUNTS HAVE BEEN SEIZED BUT IN THE COPY OF PANCHAN AMA PRODUCED BEFORE US, NO SUCH BOOKS OF ACCOUNTS HAS BEEN FOUND AND SEIZED. FURTHER , IN THE ASSESSMENT ORDER WHILE MAKING ADDITION THE AO HAS NOT REFERRED TO ANY LOOSE SHEET OR ANY SPECIFIC INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF SEARCH ENABLING HIM TO MAK E SUCH ADDITION. 10 . WE FIND THAT THE CIT(A) RELYING UPON THE DECISIONS OF THE HONBLE HIGH COURT OF KERALA IN THE CASE OF E.N.GOPAKUMAR VS. CIT [2016] 75 TAXMANN.COM 215 (KERALA) AND THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUMAR ARORA [2014] 52 TAXMANN.COM 172 (ALLAHABAD) HAS HELD THAT EVEN IF THERE IS NO INCRIMINATING MATERIAL, THE AO IS EMPOWERED TO MAKE ADDITIONS IN AN ASSESSMENT FRAMED U/S.153A OF THE ACT. W E FIND THAT NONE OF THE DECISION RELIED UPON BY EIT HER OF THE PARTIES ARE OF JURISDICTIONAL HIGH COURT. IT IS A WELL SETTLED POSITION OF LAW THAT WHEN THERE ARE CONFLICTING DECISIONS OF HIGH COURTS NONE OF WHICH IS THE JURISDICTIONAL HIGH COURT, THEN THE DECISION FAVOURING THE ASSESSEE SHOULD BE FOLLOWED. FOR THIS, WE DERIVE SUPPORT FROM THE DECISION OF HON'BLE IT (SS) A NO S.86 - 96 /CTK/201 8 8 SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD . 88 ITR 192 (SC). THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT IN AN ASSESSMENT MADE U/S.153 A OF THE ACT FOR AN ASSESSMENT YEAR FOR WHICH ASSESSMENT HAS NOT BEEN ABATED, THEN THE JURISDICTION OF THE ASSESSING OFFICER TO MAKE ADDITION IN SUCH AN ASSESSMENT, IS CONFINED TO SUCH INCRIMINAT ING SEARCH MATERIAL AND NO ADDITION DEHORS THE SEARCH MATERIAL CAN BE MADE. 11 . UNDISPUTEDLY, IN THE INSTANT CASE, THE ASSESSMENT FOR THE ASSESSMENT YEARS IN QUESTION HAVE ALREADY BEEN COMPLETED ON THE DATE OF SEARCH IN THE CASES OF BOTH THE ASSESSEES AND SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, AS IS EVIDENT FROM THE PANCHANAMA PREPARED DURING THE COURSE OF SEARCH, NO ADDITIONS CAN BE MADE TO THE INCOME ALREADY ASSESSED. TO SUPPORT OUR VIEW, WE SHALL RELY ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA, [2015] 61 TAXMANN.COM 412 (DELHI) , WHEREIN THE HONBLE HIGH COURT HAS HELD AS UNDER : - ON A CONSPECTUS OF SECTION 153A(1), READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN VARIOUS DECIS IONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH ASSESSMENT YEARS WILL HAVE TO BE COMPUTED BY THE ASSE SSING OFFICERS AS A FRESH EXERCISE. ( III ) THE ASSESSING OFFICER WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. THE IT (SS) A NO S.86 - 96 /CTK/201 8 9 ASSESSING OFFICER HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE .STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASS ESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS O F SEIZED MATERIAL.' (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABLE TO ABATED PROCEEDINGS (I.E., THOSE PENDING O N THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETE ASSESSMENT PROCEEDINGS. (VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSM ENT SHALL BE MADE SEPARATELY FOR EACH ASSESSMENT YEAR ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE ASSESSING OFFICER. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. [PARA 37] THE PRESENT APPEALS CONCERN ASSESSMENT YEARS 2002 - 03, 2005 - 06 AND 2006 - 07. ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATIN G MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. [PARA 38] THE REVENUE'S APPEALS ARE ACCORDINGLY DISMISSED. [PARA 40] 12. IN THE PRESENT CASE, WE FIND THAT THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS FOUND IN THE COURSE OF SEARCH WHICH WOULD IT (SS) A NO S.86 - 96 /CTK/201 8 10 SHOW ANY CONNECTION ON ADDITION MADE BY AO WITH THE SEIZED MATERIAL WHICH IS THE SUBJECT MATTER OF DISPUTE IN ASSESSMENT ORDER. NOTHING IS FOUND CONTRARY TO THE STATED POSITION OF THE ASSESSE E. WE ALSO FIND THAT THERE IS NO MATERIAL REFERRED TO BY THE AO TO SAY THAT ANY INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH. THEREFORE, IN THE FACTUAL BACKGROUND, WE DO NOT FIND ANY JUSTIFICATION FOR THE AO TO MAKE THE IMPUGNED ADDITIONS/DISALLO WANCE IN AN ASSESSMENT FINALIZED U/S 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL HAVING BEEN FOUND DURING THE COURSE OF SEARCH, QUA THE IMPUGNED ADDITIONS MADE IN ASSESSMENT ORDER. RESPECTFULLY, FOLLOWING THE RATIO OF DECISION OF THE HONB LE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA), WHEREIN , THE HON'BLE HIGH COURT AFTER DETAIL ANALYSIS CONCLUDED THAT, WHERE THERE IS NO INCRIMINATING MATERIAL QUA EACH OF THE ASSESSMENT YEAR ROPED IN UNDER SECTION 153A OF THE ACT , THEN, NO ADDITION CAN BE MADE WHILE FRAMING THE ASSESSMENT UNDER SECTION 153A OF THE ACT . THE AFORESAID PRINCIPLE AND RATIO ARE CLEARLY APPLICABLE ON THE FACTS OF T HE PRESENT CASE ALSO, AS ADMITTEDLY NO INCRIMINATING MATERIAL RELATING TO THESE ASSESSMENT YEARS OR AS A MATTER OF FACT FOR ANY OF THE ASSESSMENT YEARS WERE FOUND DURING THE COURSE OF SEARCH AND ACCORDINGLY, WE SET ASIDE THE ORDERS OF BOTH THE AUTHORITIES BELOW AND HELD THAT WHEN NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH THEN, NO ADDITION CAN BE MADE WHILE FRAMING THE ASSESSMENT UNDER SECTION 153A OF THE ACT. THUS, THE GROUND S RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010 - 2011 ARE ALLOWED. IT (SS) A NO S.86 - 96 /CTK/201 8 11 13. SINCE, WE HAVE HELD THAT THE ASSESSMENT FRAMED BY THE AO U/S.153A OF THE ACT IS NOT SUSTAINABLE AS THERE IS NO INCRIMINATING MATERIAL RELATING TO THE ASSESSMENT YEARS UNDER CONSIDERA TION WERE FOUND DURING THE COURSE OF SEARCH , THEREFORE, REST OF THE APPEALS I.E.IT(SS)A NO. 87 TO 91/CTK/2018 FOR THE ASSESSMENT YEARS 2011 - 2012 TO 2015 - 2016 BEING SIMILAR IN GROUNDS RAISED IN ASSESSMENT YEAR 2010 - 2011, T HE ADDITION MADE THEREIN BY THE AO AND CONFIRMED BY THE CIT(A) IS NOT SUSTAINABLE . THUS, APPEALS OF THE ASSESSEE FOR ASSESSMENT YEARS 2011 - 2012 TO 2015 - 2016 IN THE CASE OF ASSESSEE - DR. SUKANTA CHANDRA MALLICK ARE ALLOWED. 14. NOW, WE SHALL TAKE UP THE APPEALS OF THE ASSESSEE - DR. SAMBEET KUM AR MALLICK, WHEREIN THE GROUNDS RAISED BY THE ASSESSEE IN ALL ITS APPEAL FOR THE ASSESSMENT YEARS 2012 - 2013 TO 2016 - 2017 ARE IDENTICAL TO THE GROUND DECIDED BY US IN THE CASE OF ASSESSEE - DR. SUKANTA CHANDRA MALLICK IN IT(SS)A NO. 86/CTK/2018, WHEREIN WE HAV E HELD THAT THE ASSESSMENT FRAMED BY THE AO U/S.153A IS NOT SUSTAINABLE AS NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH TO LEAD THE AO TO MAKE SUCH ADDITION. SINCE, THE PRESENT APPEALS OF THE ASSESSEE B EING IDENTICAL TO THE ABOVE AP PEALS, THE REFORE, OUR OBSERVATIONS MADE IN THE ABOVE APPEALS SHALL APPLY MUTATIS MUTANDIS TO THE GROUNDS RAISED IN THESE APPEALS I.E. IT(SS)A NOS.92 TO 96/CTK/2018 FOR THE ASSESSMENT YEARS 2012 - 2013 TO 2 016 - 2017. ACCORDINGLY, ALL THE APPEALS RELATING TO AS SESSEE - DR. SABEET KUMAR MALLICK ARE ALLOWED. IT (SS) A NO S.86 - 96 /CTK/201 8 12 1 5. IN THE RESULT, ALL APPEAL S OF BOTH THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 /0 7 /201 9 . SD/ - ( C.M.GARG ) SD/ - ( L.P.SAHU ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 08 / 0 7 /201 9 . . / PKM , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . 2. / THE RESP ONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//