A.C.I.T.CC-1(3), Kolkata V. M/s JIS Foundation, Kolkata

ITSSA 90/KOL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1030 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-07-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH AIBOR JAYAL S AUKMIE
• Assessee Lawyers: ASSESE SHRI ANIL KOCHAR
• Keywords: Unexplained investment; Value adopted by valuation officer; Capital asset; Search and seizure; Opportunity of being heard; Principle of natural justice; Retrospective amendment; Question of law; Fair market value; Valuation report; Set aside; Capital Gains
• Section: 153A; 37(1); 195; 69B; 69A; 264; 55A; 55(a); 73; 13; 153; 22; 153C; 131; 69; 56; 132

Judgement Text

1 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, VICE PRESIDENT AND SHRI A. T. VARKEY, JM] I.T(SS).A. NOS. 86 TO 92/KOL/2019 ASSESSMENT YEARS: 2008-09 TO 2014-15 ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1(3), KOLKATA. VS. M/S. JIS FOUNDATION (PAN: AAAAJ1860A) APPELLANT RESPONDENT & I.T(SS).A. NOS. 01 TO 06/KOL/2020 ASSESSMENT YEARS: 2008-09 TO 2013-14 M/S. JIS FOUNDATION VS. DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1(3), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 07.07.2021 DATE OF PRONOUNCEMENT 09.07.2021 FOR THE APPELLANT/REVENUE SHRI DINESH AIBOR JAYAL S AUKMIE, CIT, DR FOR THE RESPONDENT/ASSESE SHRI ANIL KOCHAR, FCA ORDER PER BENCH: ALL THESE CROSS APPEALS PREFERRED BY THE REVENUE A ND ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF LD. CIT(A), KOLKATA-20 DATED 30. 10.2019 FOR ASSESSMENT YEARS 2008-09 TO 2014-15 RESPECTIVELY [ BUT THE ASSESSEE HAS NOT FILED ANY APPEAL FOR AY 20 14-15 ]. BOTH THE PARTIES AGREE THAT IN ALL THE APPEALS FACTS ARE SAME EXCEPT VARIANCE IN AMOUNT OF THE ADDITIONS AND THAT THE BASIS OF THE ADDITION MADE B Y THE AO AND WHICH HAS BEEN DELETED BY THE LD. CIT(A) ARE THE SAME. SINCE THE FACTS ARE SA ME IN ALL THE APPEALS, WE ARE INCLINED TO DISPOSE OF ALL THE AFORESAID APPEALS BY THIS CONSOL IDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE FACTS RELATING TO AY 2008-09 ARE T AKEN AS LEAD CASE AND THE RESULT WILL BE FOLLOWED IN ALL THE OTHER APPEALS. 2 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 2. THE REVENUE HAS CHALLENGED THE MERITS OF THE AD DITION DELETED BY THE LD. CIT(A) IN ALL THE APPEALS [ AYS 2008-09 TO 2014-15 ] WHEREAS THE ASSESSEE HAS CHALLENGED IN ITS CROSS-APPEAL THE LEGAL ISSUE AS TO WHETHER ANY ADDI TION COULD HAVE BEEN MADE U/S. 153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WITHOUT ANY INCRIMINATING MATERIAL UNEARTHED DURING SEARCH QUA THE ASSESSEE T RUST IN THE ASSESSMENT YEARS WHICH WERE NOT PENDING BEFORE THE AO ON THE DATE OF SEARCH U/S . 132 OF THE ACT ON 13.03.2014 VIZ., (AYS 2008-09 TO 2012-13). 3. COMING TO THE REVENUE APPEAL, THE FIRST GROUND OF APPEAL OF THE REVENUE FOR AY 2008-09 READS AS UNDER: 1. WHETHER LD. CIT(A) IS JUSTIFIED IN DELETING AD DITION OF RS.5,21,77,760/-, WHEN AO HAD MADE THE ADDITION AS UNEXPLAINED INVESTMENT U/S. 69 OF THE I. T. ACT, ON BASIS OF VALUATION REPORT OF THE DISTRICT VALUATION OFFICER (DVO). 4. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE T HAT THE ASSESSEE (EDUCATIONAL TRUST) HAD FILED ORIGINAL RETURN OF INCOME FOR AY 2008-09 ON 30.09.2008 DISCLOSING TOTAL INCOME OF RS. NIL. THE AO NOTES THAT A SEARCH AND SEIZURE OPERATION U/S. 132(1) OF THE ACT WAS CONDUCTED AT THE OFFICE/RESIDENCE OF ASSESSEE TRUST ALONG WITH OTHER ASSESSEES OF JIS GROUP ON 13.03.2014 AND ON SUBSEQUENT DATES. THEREAFTER, AO NOTES THAT PURSUANT TO NOTICE ISSUED BY HIM ON 20.10.2014 U/S. 153A(1) OF THE ACT AND THE ASSESSEE TRUST FILED RETURN OF INCOME ON 19.02.2015 DISCLOSING TOTAL INCOME AT RS. NIL. THE AO ACKNOWLEDGES IN THE ASSESSMENT ORDER THAT THE LD. AR OF THE ASSESSEE HA D APPEARED BEFORE HIM AND HAD FURNISHED THE RELEVANT DOCUMENTS AND ACCOUNTS. THE REAFTER THE AO OBSERVES THAT IN THE COURSE OF POST- SEARCH OPERATION THE DDIT (INV.), K OLKATA HAD MADE A REFERENCE TO THE DVO IN RESPECT OF VALUATION OF IMMOVABLE PROPERTIES HEL D UNDER THE ASSESSEE TRUST AND IN PURSUANCE TO THAT REFERENCE, THE DVO FURNISHED VALU ATION REPORT VIDE LETTER DATED 18.12.2014 ( HEREINAFTER REFERRED TO AS THE INITIAL DVO REPORT ) AND ON PERUSAL OF THE SAME, THE AO NOTED THAT THE DVO HAD VALUED THE FOLLOWING BUILDINGS AS NARRATED AND VALUED AS BELOW: SL. NO. NAME OF THE TRUST COLLEGE UNDER TRUST WITH ADDRESS DECLARED VALUE ASSESSED VALUE 1. JIS FOUNDATION JIS COLLEGE OF ENGINEERING PHASE-III, KALYANI, NADIA 11,02,68,387/- 41,27,51,198/- 3 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 2. DO DR. SUDHIR CHANDRA SUR DEGREE ENGINEERING. COLLEGE, 540, DUM DUM ROAD, KOLKATA. 19,71,17,000/- 67,57,03,900/- 3. DO JIS SCHOOL OF POLYTECHNICS, BLOCK-A, PHASE-III, KALYANI, NADIA. 3,69,93,296/- 23,30,09,692/- TOTAL 34,43,78,683/- 132,14,64,790/- 5. THE AO NOTES THAT DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, HE SHOW CAUSED THE ASSESSEE TRUST VIDE LETTER DATED 05.01.2016 AS TO W HY THE DIFFERENCE OF VALUE AS DETERMINED BY THE DVO SHOULD NOT BE ADDED BACK TO THE TOTAL IN COME. PURSUANT TO THE SHOW CAUSE, THE AO NOTES THAT THE ASSESSEE OBJECTED TO THE METHOD O F VALUATION ADOPTED BY THE DVO VIDE LETTER DATED 13.01.2016 AND REQUESTED FOR RE-VALUAT ION OF PROPERTIES. TAKING INTO CONSIDERATION THE OBJECTION OF THE ASSESSEE, THE AO NOTES THAT HE REQUESTED THE DVO TO RECONSIDER THE VALUATION VIDE LETTER DATED 22.01.20 16 AND REMINDED HIM TO FURNISH THE REPORT AT AN EARLY DATE SINCE THE ASSESSMENT WAS GE TTING TIME BARRED. BUT ACCORDING TO AO, SINCE REPORT FROM THE DVO WAS NOT FORTHCOMING, KEEP ING IN MIND THE INTEREST OF THE REVENUE AND TAKING INTO CONSIDERATION THE YEAR-WISE DIFFERENCE IN VALUATION OF PROPERTY AS DETERMINED BY THE DVO VIDE VALUATION REPORT DATED 1 8.12.2014, ( INITIAL DVO REPORT ) ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE THE FOLLOWING AMOUNT FOR THE RESPECTIVE ASSESSMENT YEARS AS UNDER: ASST. YEAR AMOUNT 2008-09 RS. 5,21,77,760/- 2009-10 RS. 2,87,89,161/- 2010-11 RS. 2,77,39,383/- 2011-12 RS. 55,93,03,791/- 2012-13 RS. 13,32,39,202/- 2013-14 RS. 11,38,09,959/- 2014-15 RS. 6,20,26,850/- 4 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(A) WHEREIN THE ASSESSEE HAD CHALLENGED THE VALIDITY OF THE DVO REP ORT WHICH WAS THE ONLY BASIS ON WHICH THE ADDITIONS WERE MADE BY THE AO BY RAISING AN ADD ITIONAL GROUND AS UNDER FOR ALL ASSESSMENT YEARS: FOR THAT THE VALUATION OFFICER TO WHOM THE REFERE NCE WAS MADE BY THE AO FOR DETERMINATION OF COST OF CONSTRUCTION U/S. 142A OF THE ACT, HAVIN G NOT SENT A COPY OF THE REPORT OF THE ESTIMATE MADE UNDER SUB-SECTION (4) IF SUB-SECTION (5), AS T HE CASE MAY BE WITHIN A PERIOD OF SIX MONTHS AS PROVIDED U/S. 142A(6) THE REFERENCE SO MADE BECO MES INFRUCTUOUS. 7. THE AFORESAID ADDITIONAL GROUND WHICH WAS LEGAL IN NATURE WAS ADMITTED BY THE LD. CIT(A) AND AFTER HAVING CALLED UPON FROM THE AO A R EMAND REPORT ON THIS ISSUE, THE LD. CIT(A) TOOK UPON HIMSELF THE EXERCISE TO CALL FOR T HE DVO REPORT IN WHICH HE FAILED, ( I.E. DVO DID NOT FURNISH THE REPORT ) THE LD. CIT(A) HAS ALLOWED THE ADDITIONAL GROUND OF APPEAL AND HELD AS UNDER: 12. IN VIEW OF THE ABOVE DISCUSSION, I AGREE WITH THE CONTENTION OF THE ASSESSEE THAT THE DVO HAD STATUTORY DUTY TO SUBMIT A VALUATION REPORT WIT HIN SIX MONTHS FROM THE END OF THE MONTH WHEN REFERENCE WAS FIRST MADE BY THE AO AS MANDATED BY THE SECTION 142A(6) AND NON- SUBMISSION OF THE REPORT BY THE VALUATION OFFICER W ITHIN STATUTORY PERIOD MAKES EARLIER REPORT OF THE DVO NON-EST AND THEREFORE THE AO COULD NOT H AVE RELIED ON THE EARLIER REPORT (ON REFERENCE BY ADIT) TO MAKE ADDITION IN THE CASE OF THE ASSESSEE. THEREFORE, THE ADDITIONAL GROUND(S) RAISED BY THE ASSESSEE IS ALLOWED. 8. THUS, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAVING ALLOWED THIS ADDITIONAL GROUND OF APPEAL OF THE ASSESSEE HAVE HE LD THAT NON-SUBMISSION / FURNISHING OF THE REPORT BY THE VALUATION OFFICER WITHIN STATUTOR Y PERIOD ( SIX MONTHS FROM THE END OF THE MONTHS REFERENCE IS MADE BY THE AO FOR IT ) MAKES THE INITIAL REPORT OF THE DVO DATED 18.12.2014 [ CALLED FOR BY THE DDIT(INV) ] NON-EST AND, THEREFORE, THE LD. CIT(A) HELD THAT THE AO COULD NOT HAVE RELIED ON THE INITIAL DVO REP ORT [ PURSUANT TO THE REFERENCE MADE BY DDIT(INV) ] TO MAKE THE ADDITION IN THE CASE OF THE ASSESSEE . SO, ACCORDING TO LD. AR, SINCE THE BASIS FOR ADDITION WAS BASED ONLY ON THE VALUATION REPORT OF THE DVO PURSUANT TO THE REFERENCE MADE BY DDIT(INV) WHICH HAVING BEEN H ELD TO BE NON-EST BY THE LD. CIT(A), AND IN THE ASSESSMENT ORDER THE AO HAS NOT MENTIONE D ANYTHING ABOUT ANY INCRIMINATING MATERIALS UN-EARTHED DURING SEARCH, THE ADDITIONS M ADE THEREBY IN ALL THE ASSESSMENT YEARS FROM AY 2008-09 TO 2014-15 CONSEQUENTLY GOT DELETED . AND THIS ACTION OF LD. CIT(A) HAS BEEN CHALLENGED BY REVENUE IN THEIR RESPECTIVE APPE ALS WHICH WE DEAL WITH (INFRA). AS FAR 5 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 AS ASSESSEES APPEAL IS CONCERNED IT WAS BROUGHT T O OUR NOTICE THAT THE LD. CIT(A) DID NOT ALLOW ASSESSEES LEGAL ISSUE RAISED I.E. WHETHER AL L THE ASSESSMENT IN RESPECT OF ASSESSMENT YEARS I.E. AY 2008-09 TO AY 2012-13 ( OTHER THAN AY 2013-14 & 2014-15 ) BEING NOT PENDING BEFORE THE AO ON THE DATE OF SEARCH I.E. 13 .03.2014 BEING UN-ABATED ASSESSMENTS, THE AO WHILE FRAMING THE RE-ASSESSMENT U/S. 153A O F THE ACT COULD HAVE MADE ANY ADDITION WITHOUT THE AID OF ANY INCRIMINATING MATER IAL UNEARTHED DURING SEARCH QUA THE ASSESSEE QUA THE RESPECTIVE UNABATED ASSESSMENT YEA RS ?. ACCORDING TO LD. A.R, THIS QUESTION OF LAW IS NO LONGER RES-INTEGRA AND THE AO WHILE FRAMING ASSESSMENT U/S 153A OF THE ACT COULD NOT HAVE MADE ANY ADDITIONS WITHOUT T HE AID OF ANY INCRIMINATING MATERIAL UNEARTHED DURING SEARCH QUA THE ASSESSEE QUA THE RE SPECTIVE UNABATED ASSESSMENT YEARS. AND SINCE THE LD. CIT(A) HAS NOT ACCEPTED/ALLOWED T HE LEGAL ISSUE RAISED BY IT, THEREFORE, THE ASSESSEE TRUST HAS PREFERRED THESE CROSS APPEAL S CHALLENGING THIS IMPUGNED ACTION OF THE LD. CIT(A). 9. FIRST WE WILL DEAL WITH THE REVENUE APPEAL. WE H AVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CAS E. WE NOTE THAT THE LD. CIT(A) BY ALLOWING THE ADDITIONAL GROUND OF APPEAL (SUPRA) HA S HELD THAT THE INITIAL DVO REPORT [ PURSUANT TO THE REFERENCE MADE BY DDIT/ADIT(INV) ] ON THE BASIS OF WHICH THE AO HAS MADE THE IMPUGNED ADDITIONS IN ALL THE ASSESSMENT Y EARS WERE NON-EST, RESULTING IN DELETION OF ALL THE IMPUGNED ADDITIONS MADE BY THE AO, WHICH HAS BEEN CHALLENGED BY THE DEPARTMENT BY RAISING THE FOLLOWING GROUNDS OF APPE AL WHICH ARE AS FOLLOWS: 1. WHETHER LD. CIT (A) IS JUSTIFIED IN DELETING AD DITION OF RS.5,21,77,760/-, WHEN A.O. HAD MADE THE ADDITION AS UNEXPLAINED INVESTMEN T U/S 69 OF THE IT. ACT., ON BASIS OF VALUATION REPORT OF THE DISTRICT VALUATION OFFI CER(DVO)? 2. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S CONTENTION THAT BEFORE INTRODUCTION OF SECTION 132(9D) OF THE ACT., THE DD IT (INV.) HAD NO AUTHORITY TO REFER THE MATTER RELATING TO VALUATION OF IMMOVABLE PROPE RTIES, BEFORE DVO? 3. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S ADDITIONAL GROUND OF APPEAL THAT AS PER SECTION 142A(6) OF THE I.T. ACT, VALUATION REPORT IS TO BE COMPLETED WITHIN 6 MONTHS WHEN THE REFERENCE WAS NOT MADE FOR FIRST TIME, AND SAME WAS ONLY FOR RECONSIDERATION OF EARLIER REPORT OF DVO? 4. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S ADDITIONAL GROUND OF APPEAL THAT NON SUBMISSION OF REPORT WITHIN STATUTO RY PERIOD AS PER SECTION 142A(6) OF THE LT. ACT, MAKE EARLIER REPORT NON-EST.? 6 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 5. WHETHER LD.CIT(A) IS JUSTIFIED THAT IF THE DVO D OES NOT FURNISH ITS REVISED REPORT, WITHIN 6 MONTHS, THEN WHETHER AFTER RECONSIDERATION OF HIS EARLIER VALUATION REPORT ENTIRE ASSESSMENT OF A.O COULD HAVE BEEN ANNULLED. 10. IT IS NOTED THAT THE ASSESSEE IS A TRUST IMPART ING EDUCATION THROUGH VARIOUS EDUCATIONAL INSTITUTION FROM ITS OWN PREMISES SINCE PAST MANY YEARS, CONTROLLED AND MANAGED BY THE ASSESSEE TRUST. THESE EDUCATIONAL I NSTITUTIONS ARE AS UNDER: A) JIS COLLEGE OF ENGINEERING PHASE-III, KALYANI, NADI A B) DR. SUDHIR CHANDRA SUR DEGREE ENGINEERING. COLL EGE, 540, DUM DUM ROAD, KOLKATA. C) JIS SCHOOL OF POLYTECHNICS, BLOCK-A, PHASE-III, KAL YANI, NADIA. 11. THE LD. AR AT THE OUTSET SUBMITTED THAT A GROUP TRUST OF JIS WAS ALSO SIMILARLY SEARCHED ON 13.03.2014 ALONG WITH THE ASSESSEE; AND IDENTICAL ADDITIONS WERE MADE BASED ON THE INITIAL DVO REPORT IN THE CASE OF M/S. NARUL A EDUCATIONAL TRUST. THE SIMILAR/IDENTICAL ADDITIONS WHICH WERE MADE BY THE AO WERE DELETED BY THE SAME LD. CIT(A)-20 VIDE SEPARATE ORDERS DATED 15.11.2019 FOR AYS. 2008-09 TO 2013-14. AND THESE DECISIONS OF THE LD. CIT(A) IN ASSESSEES GROUP TR UST M/S. NARULA EDUCATIONAL TRUST WAS CHALLENGED BY THE BOTH THE REVENUE AND THE ASSESSEE BY RAISING IDENTICAL GROUNDS WHICH WERE NUMBERED AS IT(SS)A NOS. 42 TO 47/KOL/2020 AT 2008-09 TO 2013-14 (REVENUE APPEAL) AND ASSESSEE PREFERRED THE CROSS APPEALS I. E. IT(SS)A NOS. 07 TO 12/KOL/2020, AYS. 2008-09 TO 2013-14 WHICH WERE HEARD BY THIS TR IBUNAL A BENCH ON 19.01.2021 AND THE ORDER WAS PRONOUNCED ON 05.02.2021 WHEREIN THE TRIBUNAL HAS DISMISSED THE REVENUE APPEALS ( PARA 22 OF THAT ORDER, INFRA ) AND ALLOWED THE LEGAL ISSUE RAISED BY THE ASSESSEE( REFER PARA 28 OF THAT ORDER, INFRA ) (IN RESPECT OF ASSESSEES LEGAL CLAIM THAT WITHOU T THE AID OF ANY INCRIMINATING MATERIAL UNEARTHED DUR ING SEARCH, NO ADDITION WAS LEGALLY PERMISSIBLE IN UNABATED PROCEEDINGS I.E. FOR AYS. 2008-09 TO 2012-13. 12. IN THAT CASE I.E. NARULA EDUCATIONAL TRUST (GRO UP CASE) THE ASSESSEES LEGAL ISSUE RAISED FOR AYS 2013-14 SINCE IT DOES NOT SURVIVE BE CAUSE IT IS AN ABATED ASSESSMENT. 7 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 THEREFORE, CROSS APPEAL PREFERRED BY THE ASSESSEE FOR AY2013-14 WAS DISMISSED ON THE LEGAL ISSUE. 13. THUS IN THE NARULA EDUCATIONAL GROUP TRUST CASE , THE REVENUE APPEALS PERTAINING TO AYS 2008-09 TO 2013-14 WERE DISMISSED AND ASSESSEE S APPEAL PERTAINING TO AY 2013-14 WAS DISMISSED AND THE APPEALS PERTAINING TO THE AS SESSEE FOR AYS 2008-09 TO 2012-13 WERE ALLOWED VIDE ORDER DATED 05.02.2021. 14. THEREFORE, ACCORDING TO THE LD. AR SHRI ANIL KO CHAR, SINCE THE FACTS AND THE GROUNDS AS WELL AS LEGAL ISSUES ARE IDENTICAL WITH THAT OF THIS ASSESSEE (JIS FOUNDATION) WITH THAT OF M/S. NARULA EDUCATIONAL TRUST (GROUP TRUST) AND SINCE THERE WAS NO CHANGE IN FACTS AND LAW, THEREFORE, THE ISSUES RAISED BY THE REVENU E AND THE ISSUES RAISED BY THE ASSESSEE ARE SQUARELY COVERED BY THE TRIBUNAL ORDER IN M/S. NARU LA EDUCATIONAL TRUST (SUPRA). PER CONTRA, THE LD. CIT, DR SHRI DINESH AIBOR JAYAL SAU KMIE COULD NOT CONTROVERT THE CONTENTION OF THE LD. AR THAT THE FACTS ARE IDENTIC AL AND THE GROUNDS OF APPEAL RAISED BY THE REVENUE AS WELL AS THAT OF THE ASSESSEE ARE THE SA ME (ONLY VARIATION IN ADDITION/FIGURES) AND HE ACKNOWLEDGED THAT HE HAS GONE THROUGH THE DECISI ON OF THE TRIBUNAL DATED 05.02.2021 IN THE CASE OF THE ASSESSEES GROUP TRUST CASE OF M/S . NARULA EDUCATIONAL TRUST AND COULD NOT FIND ANY DISTINGUISHING FEATURES WITH THAT CASE WIT H THE ASSESSEES CASE IN HAND. IN SUCH A SCENARIO, WE ARE BOUND BY THE DECISION OF THIS TRIB UNAL DATED 05.02.2021 IN RESPECT OF THE ASSESSEES GROUP TRUST CASE OF M/S. NARULA EDUCATIO NAL TRUST WHEREIN THIS TRIBUNAL HAS HELD THAT THE CROSS APPEALS OF REVENUE AND ASSESSEE FOR AYS 2008-09 TO 2013-14 AS UNDER: ALL THESE CROSS APPEALS PREFERRED BY THE REVENUE AND ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF LD. CIT(A), KOLKATA-20 DATED 15.11.2019 FOR ASSE SSMENT YEARS 2008-09 TO 2013-14 RESPECTIVELY. BOTH THE PARTIES AGREE THAT IN ALL THE APPEALS FACTS ARE SAME EXCEPT VARIANCE IN AMOUNT OF THE ADDITIONS AND THAT THE BASIS OF THE ADDITION MADE BY THE AO AND WHICH HAS BEEN DELETED BY THE LD. CIT(A) ARE THE SAME. SINCE THE F ACTS ARE SAME IN ALL THE APPEALS, WE ARE INCLINED TO DISPOSE OF ALL THE AFORESAID APPEALS BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE FACTS RELATING TO AY 2008-09 ARE T AKEN AS LEAD CASE AND THE RESULT WILL BE FOLLOWED IN ALL THE OTHER APPEALS. 2. THE REVENUE HAS CHALLENGED THE MERITS OF THE AD DITION DELETED BY THE LD. CIT(A) WHEREAS THE ASSESSEE HAS CHALLENGED THE LEGAL ISSUE AS TO WHETHER ANY ADDITION CAN BE MADE U/S. 153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFER RED TO AS THE ACT) WITHOUT ANY INCRIMINATING MATERIAL UNEARTHED DURING SEARCH QUA THE ASSESSEE IN THE ASSESSMENT YEARS WHICH WERE NOT PENDING BEFORE THE AO ON THE DATE OF SEARC H U/S. 132 OF THE ACT ON 13.03.2014 VIZ., (AYS 2008-09 TO 2012-13). 8 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 3. COMING TO THE REVENUE APPEAL, THE FIRST GROUND OF APPEAL OF THE REVENUE READS AS UNDER: 1. WHETHER LD. CIT(A) IS JUSTIFIED IN DELETING ADD ITION OF RS.3,50,39,665/-, WHEN AO HAD MADE THE ADDITION AS UNEXPLAINED INVESTMENT U/S . 69 OF THE I. T. ACT, ON BASIS OF VALUATION REPORT OF THE DISTRICT VALUATION OFFICER (DVO). 4. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE T HAT THE ASSESSEE (EDUCATIONAL TRUST) HAD FILED ORIGINAL RETURN OF INCOME FOR AY 2008-09 ON 3 0.09.2008 DISCLOSING TOTAL INCOME OF RS. NIL. THE AO NOTES THAT A SEARCH AND SEIZURE OPERATI ON U/S. 132(1) OF THE ACT WAS CONDUCTED AT OFFICE/RESIDENCE OF ASSESSEE TRUST ALONG WITH OTHER ASSESSEES OF JIS GROUP ON 13.03.2014 AND ON SUBSEQUENT DATES. THEREAFTER, AO NOTES THAT PUR SUANT TO NOTICE ISSUED BY HIM ON 20.10.2014 U/S. 153A(1) OF THE ACT AND THE ASSESSEE TRUST FILE D RETURN OF INCOME ON 19.02.2015 DISCLOSING TOTAL INCOME AT RS. NIL. THE AO ACKNOWLEDGES IN TH E ASSESSMENT ORDER THAT THE LD. AR OF THE ASSESSEE HAD APPEARED BEFORE HIM AND HAD FURNISHED THE RELEVANT DOCUMENTS AND ACCOUNTS. THEREAFTER THE AO OBSERVES THAT IN THE COURSE OF PO ST- SEARCH OPERATION THE DDIT (INV.), KOLKATA HAD MADE A REFERENCE TO THE DVO IN RESPECT OF VALUA TION OF IMMOVABLE PROPERTIES HELD UNDER THE ASSESSEE TRUST AND IN PURSUANCE TO THAT REFERENCE, THE DVO FURNISHED VALUATION REPORT VIDE LETTER DATED 18.12.2014 (HEREINAFTER REFERRED TO AS THE IN ITIAL DVO REPORT) AND ON PERUSAL OF THE SAME, THE AO NOTED THAT THE DVO HAD VALUED THE FOLLOWING BUILDINGS AS NARRATED AND VALUED AS BELOW: SL. NO. NAME OF THE TRUST COLLEGE UNDER TR UST WITH ADDRESS DECLARED V ALUE ASSESSED VALUE 1. NARULA EDUCATIONAL TRUST 81, NILGUNJ ROAD, PANIHATI, KOLKATA-700 114 10,88,04,964/- 27,35,88,300/- 2. DO GURU NANAK INSTITUTE OF DENTAL SCIENCE & RESEARCH, 157/F, NILGUNJ ROAD, PANIHATI, KOLKATA - 700 114. 2,99,16,148 27,40,14,808/ - TOTAL 13,87,21,112/ - 54,76,03,108/ - 5. THE AO NOTES THAT DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, HE SHOW CAUSED THE ASSESSEE TRUST VIDE LETTER DATED 05.01.2016 AS TO W HY THE DIFFERENCE OF VALUE AS DETERMINED BY THE DVO SHOULD NOT BE ADDED BACK TO THE TOTAL INCOM E. PURSUANT TO THE SHOW CAUSE, THE AO NOTES THAT THE ASSESSEE OBJECTED TO THE METHOD OF V ALUATION ADOPTED BY THE DVO VIDE LETTER DATED 13.01.2016 AND REQUESTED FOR RE-VALUATION OF PROPER TIES. TAKING INTO CONSIDERATION THE OBJECTION OF THE ASSESSEE, THE AO NOTES THAT HE REQUESTED THE DVO TO RECONSIDER THE VALUATION VIDE LETTER DATED 22.01.2016 AND REMINDED HIM TO FURNISH THE R EPORT AT AN EARLY DATE SINCE THE ASSESSMENT WAS GETTING TIME BARRED. BUT ACCORDING TO AO, SINC E REPORT FROM THE DVO WAS NOT FORTHCOMING, KEEPING IN MIND THE INTEREST OF THE REVENUE AND TA KING INTO CONSIDERATION THE YEAR-WISE DIFFERENCE IN VALUATION OF PROPERTY AS DETERMINED BY THE DVO VIDE VALUATION REPORT DATED 18.12.2014, ADDED BACK TO THE TOTAL INCOME OF THE A SSESSEE THE FOLLOWING AMOUNT FOR THE RESPECTIVE ASSESSMENT YEARS AS UNDER: ASST. YEAR AMOUNT 2008-09 RS. 3,50,39,665/- 2009-10 RS. 14,34,16,954/- 2010-11 RS. 5,05,88,806/- 9 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 2011-12 RS. 4,13,91,409/- 2012-13 RS. 4,91,11,619/- 2013-14 RS. 8,93,33,543/- 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(A) WHEREIN THE ASSESSEE HAD CHALLENGED THE VALIDITY OF THE DVO REP ORT WHICH WAS THE ONLY BASIS ON WHICH THE ADDITIONS WERE MADE BY THE AO BY RAISING AN ADDITIO NAL GROUND AS UNDER FOR ALL ASSESSMENT YEARS: FOR THAT THE VALUATION OFFICER TO WHOM THE REFERE NCE WAS MADE BY THE AO FOR DETERMINATION OF COST OF CONSTRUCTION U/S. 142A OF THE ACT, HAVIN G NOT SENT A COPY OF THE REPORT OF THE ESTIMATE MADE UNDER SUB-SECTION (4) IF SUB-SECTION (5), AS T HE CASE MAY BE WITHIN A PERIOD OF SIX MONTHS AS PROVIDED U/S. 142A(6) THE REFERENCE SO MADE BECO MES INFRUCTUOUS. 7. THE AFORESAID ADDITIONAL GROUND WHICH WAS LEGAL IN NATURE WAS ADMITTED BY THE LD. CIT(A) AND AFTER HAVING CALLED UPON FROM THE AO A R EMAND REPORT ON THIS ISSUE, THE LD. CIT(A) TOOK UP ON HIMSELF THE EXERCISE TO CALL FOR THE DVO REPORT IN WHICH HE FAILED, (I.E. DVO DID NOT FURNISH THE REPORT) THE LD. CIT(A) HAS ALLOWED THE ADDITIONAL GROUND OF APPEAL AND HELD AS UNDER: 12. IN VIEW OF THE ABOVE DISCUSSION, I AGREE WITH THE CONTENTION OF THE ASSESSEE THAT THE DVO HAD STATUTORY DUTY TO SUBMIT A VALUATION REPORT WIT HIN SIX MONTHS FROM THE END OF THE MONTH WHEN REFERENCE WAS FIRST MADE BY THE AO AS MANDATED BY THE SECTION 142A(6) AND NON- SUBMISSION OF THE REPORT BY THE VALUATION OFFICER W ITHIN STATUTORY PERIOD MAKES EARLIER REPORT OF THE DVO NON-EST AND THEREFORE THE AO COULD NOT HAVE RELIED ON THE EARLIER REPORT (ON REFERENCE BY ADIT) TO MAKE ADDITION IN THE CASE OF THE ASSESS EE. THEREFORE, THE ADDITIONAL GROUND(S) RAISED BY THE ASSESSEE IS ALLOWED. 8. THUS, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAVING ALLOWED THIS ADDITIONAL GROUND OF APPEAL OF THE ASSESSEE HAVE HE LD THAT NON-SUBMISSION / FURNISHING OF THE REPORT BY THE VALUATION OFFICER WITHIN STATUTORY PE RIOD (SIX MONTHS FROM THE END OF THE MONTHS REFERENCE IS MADE BY THE AO FOR IT) MAKES THE INI TIAL REPORT OF THE DVO [CALLED FOR BY THE DDIT(INV)] NON-EST AND, THEREFORE, THE LD. CIT(A) H ELD THAT THE AO COULD NOT HAVE RELIED ON THE INITIAL DVO REPORT [ PURSUANT TO THE REFERENCE MADE BY DDIT(INV)] TO MAKE THE ADDITION IN THE CASE OF THE ASSESSEE. SO, ACCORDING TO LD. AR, SIN CE THE BASIS FOR ADDITION WAS BASED ONLY ON THE VALUATION REPORT OF THE DVO PURSUANT TO THE REF ERENCE MADE BY DDIT(INV) WHICH HAVING BEEN HELD TO BE NON-EST BY THE LD. CIT(A), AND IN T HE ASSESSMENT ORDER THE AO HAS NOT MENTIONED ANYTHING ABOUT ANY INCRIMINATING MATERIAL S UN-EARTHED DURING SEARCH, THE ADDITIONS MADE THEREBY IN ALL THE ASSESSMENT YEARS FROM AY 20 08-09 TO 2013-14 CONSEQUENTLY GOT DELETED. AND THIS ACTION OF LD. CIT(A) HAS BEEN CHA LLENGED BY REVENUE IN THEIR RESPECTIVE APPEALS. FURTHER IT WAS BROUGHT TO OUR NOTICE T HAT THE LD. CIT(A) DID NOT ALLOW ASSESSEES LEGAL ISSUE RAISED I.E. WHETHER ALL THE ASSESSMENT IN RESPECT OF ASSESSMENT YEARS I.E. AY 2008-09 TO AY 2012-13 ( OTHER THAN AY 2013-14) BEING NOT P ENDING BEFORE THE AO ON THE DATE OF SEARCH I.E. 13.03.2014 BEING UN-ABATED ASSESSMENTS, THE AO WHILE FRAMING THE RE-ASSESSMENT U/S. 153A OF THE ACT COULD NOT HAVE MADE ANY ADDI TION WITHOUT THE AID OF ANY INCRIMINATING MATERIAL UNEARTHED DURING SEARCH QUA THE ASSESSEE Q UA THE RESPECTIVE UNABATED ASSESSMENT YEARS. ACCORDING TO LD. A.R SINCE LD. CIT(A) HAS NOT ACCEP TED/ALLOWED THE LEGAL ISSUE RAISED BY IT, THEREFORE, THE ASSESSEE TRUST HAS PREFERRED THESE C ROSS APPEALS CHALLENGING THIS IMPUGNED ACTION OF THE LD. CIT(A). 9. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD. CIT(A) BY ALLOWING THE ADDITIONAL GROUND OF APPEAL (SUPRA) HAS HELD THAT THE INITIAL DVO REPORT [PURSUANT TO THE REFERE NCE MADE BY DDIT/ADIT(INV)] ON THE BASIS OF WHICH THE AO HAS MADE THE IMPUGNED ADDITIONS IN ALL THE ASSESSMENT YEARS WERE NON-EST, RESULTING IN DELETION OF ALL THE IMPUGNED ADDITIONS MADE BY THE AO, WHICH HAS BEEN CHALLENGED BY THE DEPARTMENT BY RAISING THE FOLLOWING GROUNDS OF APPEAL WHICH ARE AS FOLLOWS: 10 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 1. WHETHER LD. CIT (A) IS JUSTIFIED IN DELETING AD DITION OF RS.3,50,39,665/-, WHEN A.O. HAD MADE THE ADDITION AS UNEXPLAINED INVESTMENT U/S 69 OF THE IT. ACT., ON BASIS OF VALUATION REPORT OF THE DISTRICT VALUATION OFFICER(DVO)? 2. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S CONTENTION THAT BEFORE INTRODUCTION OF SECTION 132(9D) OF THE ACT., THE DDIT (INV.) HAD NO AUTHORITY TO REFER THE MATTER RELATING TO VALUATION OF IMMOVABLE PROPERTIES, BEFORE DVO? 3. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S ADDITIONAL GROUND OF APPEAL THAT AS PER SECTION 142A(6) OF THE I.T. ACT, VALUATION REPO RT IS TO BE COMPLETED WITHIN 6 MONTHS WHEN THE REFERENCE WAS NOT MADE FOR FIRST TIME, AND SAME WAS ONLY FOR RECONSIDERATION OF EARLIER REPORT OF DVO? 4. WHETHER LD. CIT (A) IS JUSTIFIED IN ACCEPTING AS SESSEE'S ADDITIONAL GROUND OF APPEAL THAT NON SUBMISSION OF REPORT WITHIN STATUTORY PERIOD AS PER SECTION 142A(6) OF THE LT. ACT, MAKE EARLIER REPORT NON-EST.? 5. WHETHER LD.CIT(A) IS JUSTIFIED THAT IF THE DVO D OES NOT FURNISH ITS REVISED REPORT, WITHIN 6 MONTHS, THEN WHETHER AFTER RECONSIDERATION OF HIS E ARLIER VALUATION REPORT ENTIRE ASSESSMENT OF A.O COULD HAVE BEEN ANNULLED. 10. IT IS NOTED THAT THE ASSESSEE IS A TRUST IMPART ING EDUCATION THROUGH VARIOUS EDUCATIONAL INSTITUTION FROM ITS OWN PREMISES SINCE PAST MANY Y EARS, CONTROLLED AND MANAGED BY THE ASSESSEE TRUST. THESE EDUCATIONAL INSTITUTIONS ARE AS UNDER : A) NARULA INSTITUTE OF TECHNOLOGY, 81, NILGUNJ ROA D, PANIHATI, KOLKATA-700 114. B) GURUNANAK INSTITUTUE OF DENTAL SCIENCE & RESEARC H 157/F, NILGUNJ ROAD, PANIHATI, KOLKATA-700 114. 11. FROM A PERUSAL OF THE PANCHANAMA DRAWN BY THE I NVESTIGATION WING AFTER SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT ON 13.03.2014, IT IS NOTED THAT IT TOOK PLACE AT THE ASSESSEES ADMINISTRATIVE OFFICE AT DWARKA BUILDING, 7, SARAT BOSE ROAD, KOLKATA-700 020 AND NOT AT THE CAMPUS PREMISES OF EDUCATIONAL INSTITUTION SITUATED AT NILGUNJ ROAD, PANIHATI, KOLKATA-700 114. THE AO OBSERVED IN THE RE-ASSESSMENT ORDER THAT DUR ING THE COURSE OF POST SEARCH OPERATION, THE DDIT (INV.), KOLKATA HAD MADE REFERENCE TO THE DIST RICT VALUATION OFFICER (DVO) IN RESPECT OF THE VALUATION OF IMMOVABLE PROPERTIES HELD BY THE A SSESSEE TRUST; AND PURSUANT TO THE SAME, DISTRICT VALUATION OFFICER (DVO) HAS FURNISHED VAL UATION REPORT VIDE LETTER DATED 18.12.2014. THE AO NOTES FROM A PERUSAL OF THE DVO REPORT THAT THERE WAS DIFFERENCE IN VALUATION OF BUILDING AS SHOWN BY THE ASSESSEE TRUST IN ITS PREM ISES. WHEN THIS REPORT (DVO) WAS CONFRONTED TO THE ASSESSEE VIDE SHOW CAUSE LETTER DATED 05.01. 2016, THE ASSESSEE OBJECTED TO THIS DVO REPORT AND CHALLENGED THE SAME ON VARIOUS GROUNDS INTER-ALIA ON THE METHOD OF VALUATION ADOPTED BY THE DVO AND REQUESTED FOR REVALUATION OF THE PROPERTIES. THEREFORE, THE AO NOTES THAT HE REQUESTED DVO TO RE-VALUE THE PROPERTIES AG AIN WHICH DID NOT YIELD ANY RESULT. IT IS NOTED THAT THE ASSESSEE HAD OBJECTED TO THE ACTION OF DDIT(INV) TO HAVE MADE REFERENCE TO THE DVO WHICH ACCORDING TO THE ASSESSEE THE SAID AUTHO RITY [DDIT(INV)] DID NOT HAD POWERS TO DO SO; AND AT THAT POINT OF TIME ONLY THE AO U/S 142A OF THE ACT COULD HAVE CALLED FOR THE SAME WHICH FACT ACCORDING TO LD. A.R IS EVIDENT SINCE TH IS POWER WAS CONFERRED ON THE DDIT (INV) BY INSERTING SUB-SECTION (9) IN SECTION 132 OF THE ACT ON 01.04.2017 AND IN THIS CASE [DVO ON REFERENCE OF DDIT(INV) DATED 11.07.2014, WHO IN TUR N SUBMITTED THE VALUATION REPORT ON 18.12.2014 MAKES IT CLEAR THAT DDIT(INV) HAD MADE REFERENCE BEFORE 01.04.2017]. WHEN THIS OBJECTION THAT IN THE YEAR 2014 (I.E. ON 11.07.201 4), THE DDIT (INV) LACKED POWERS / JURISDICTION TO CALL FOR VALUATION REPORT FROM DVO, THE AO IN HI S WISDOM REALIZING THE ERROR IN ORDER TO CORRECT IT HAD CALLED FOR THE VALUATION REPORT VIDE LETTER DATED 22.01.2016. HOWEVER THE AO ACKNOWLEDGES THAT PURSUANT TO HIS REFERENCE DATED 22.01.2016, THE DVO DID NOT FURNISH THE VALUATION REPORT TILL THE DATE ON WHICH THE RE-ASS ESSMENT ORDER U/S. 153A/143(3) OF THE ACT HAS 11 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 BEEN PASSED ON 30.03.2016. THE AO TAKING INTO CONSI DERATION THE INTEREST OF REVENUE, AND THE FACT THAT THE ASSESSMENT WAS GETTING TIME BARRED, P ASSED THE ASSESSMENT ORDER ON 30.03.2016 BY MAKING ADDITION BASED ON THE DIFFERENCE IN VALUATIO N OF PROPERTIES AS SUBMITTED BY DVO DATED 18.12.2014 (INITIAL DVO REPORT) MADE ON THE REFERE NCE BY DDIT(INV). 12. WE FIND FROM PERUSAL OF THE ASSESSMENT ORDER RE LATING TO ALL THE ASSESSMENT YEARS (AY 2008-09 AY 2013-14) THAT THE ONLY BASIS ON WHICH THE AO HAS MADE THE ADDITION WAS BASED ON THE DIFFERENCE OF THE VALUATION OF IMMOVABLE PRO PERTIES MADE BY THE ASSESSEE AND THE INITIAL DVO REPORT WHICH WAS MADE ON A REFERENCE BY THE DDI V (INV.) AND THE ADDITIONS WERE MADE AS DISCUSSED AT PAGE 3, PARA 5 (SUPRA): ASST. YEAR AMOUNT 2008-09 RS. 3,50,39,665/- 2009-10 RS. 14,34,16,954/- 2010-11 RS. 5,05,88,806/- 2011-12 RS. 4,13,91,409/- 2012-13 RS. 4,91,11,619/- 2013-14 RS. 8,93,33,543/- 13. ON APPEAL, WHEN THE ASSESSEE RAISED THIS PARTI CULAR OBJECTION BEFORE THE LD. CIT(A), THE LD. CIT(A) APPRECIATED THE ERROR COMMITTED BY T HE DDIT/ADIT (INV) AND IN ORDER TO CORRECT THE ERROR EXERCISED HIS CO-TERMINUS POWER AS THAT O F AO AND MADE REFERENCE TO THE DVO BY SENDING A LETTER DATED 29.01.2019 THROUGH THE AO TO OBTAIN THE DVO REPORT. THE LD. CIT(A) NOTED THAT PURSUANT TO HIS CONSTANT REMINDERS TO OB TAIN THE DVO REPORT, THE AO MADE SEVERAL ATTEMPTS TO REMIND THE DVO FOR SUBMISSION OF THE DV O REPORT HOWEVER NOTED THAT THEY FAILED IN THEIR ATTEMPT. [IN THIS REGARD, THE LD. CIT(A) NOT ES THAT THE AO HAD ISSUED SEVERAL REMINDERS TO THE DVO VIDE LETTER DATED 27.03.2019, 02.04.2019, 1 2.04.2019, 06.05.2019, 24.05.2019 AND 02.07.2019, DESPITE THAT DVO DID NOT RESPOND AND SU BMITTED NEITHER THE REPORT TO HIM NOR THE AO TILL THE DATE HE PASSED THE IMPUGNED ORDER DATED 15.11.2019]. THEREAFTER, THE LD. CIT(A) RECORDED HIS FINDING ON THE ADDITIONAL GROUND RAISE D BY THE ASSESSEE (SUPRA) BEFORE HIM THAT SINCE THE DVO FAILED TO SUBMIT VALUATION REPORT WIT HIN SIX MONTHS ON MAKING REFERENCE WHICH IS MANDATORY AS STIPULATED UNDER SECTION 142A OF THE A CT, WAS PLEASED TO ALLOW THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. THIS ACTION OF LD. C IT(A) HAS BEEN CHALLENGED BY THE REVENUE BEFORE US. FOR ADJUDICATING THIS ISSUE IT WOULD BE GAINFUL TO REPRODUCE THE RELEVANT PROVISION I.E. SECTION 142A OF THE ACT (SUBSTITUTED BY THE FINANCE (NO.2) ACT, 2014, W.E.F. 01.10.2014). REFERENCE TO THE DVO WHICH READS AS UNDER: ESTIMATION OF VALUE OF ASSETS BY VALUATION OFFICER 142A. (1) THE ASSESSING OFFICER MAY, FOR THE PURPOSES OF ASSESSMENT OR REASSESSMENT, MAKE A REFERENCE TO A VALUATION OFFICER TO ESTIMATE THE VALUE, INCLUDING FAIR MARKET VALUE, OF ANY ASSET, PROPERTY OR INVESTMENT AND SUBMIT A COPY OF REPORT TO HIM. (2) THE ASSESSING OFFICER MAY MAKE A REFERENCE TO T HE VALUATION OFFICER UNDER SUB-SECTION (1) WHETHER OR NOT HE IS SATISFIED ABOUT THE CORRECTNES S OR COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE. (3) THE VALUATION OFFICER, ON A REFERENCE MADE UNDE R SUB-SECTION (1), SHALL, FOR THE PURPOSE OF ESTIMATING THE VALUE OF THE ASSET, PROPERTY OR INVE STMENT, HAVE ALL THE POWERS THAT HE HAS UNDER SECTION 38A OF THE WEALTH-TAX ACT, 1957 (27 OF 1957 ). (4) THE VALUATION OFFICER SHALL, ESTIMATE THE VALUE OF THE ASSET, PROPERTY OR INVESTMENT AFTER TAKING INTO ACCOUNT SUCH EVIDENCE AS THE ASSESSEE M AY PRODUCE AND ANY OTHER EVIDENCE IN HIS POSSESSION GATHERED, AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. (5) THE VALUATION OFFICER MAY ESTIMATE THE VALUE OF THE ASSET, PROPERTY OR INVESTMENT TO THE BEST OF HIS JUDGMENT, IF THE ASSESSEE DOES NOT CO-OPERAT E OR COMPLY WITH HIS DIRECTIONS. (6) THE VALUATION OFFICER SHALL SEND A COPY OF THE REPORT OF THE ESTIMATE MADE UNDER SUB-SECTION (4) OR SUB-SECTION (5), AS THE CASE MAY BE, TO THE ASSESSING OFFICER AND THE ASSESSEE, WITHIN A 12 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN W HICH A REFERENCE IS MADE UNDER SUB-SECTION (1). (7) THE ASSESSING OFFICER MAY, ON RECEIPT OF THE RE PORT FROM THE VALUATION OFFICER, AND AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD, TAKE INTO ACCOUNT SUCH REPORT IN MAKING THE ASSESSMENT OR REASSESSMENT. EXPLANATION.IN THIS SECTION, 'VALUATION OFFICER' H AS THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). 14. IT IS NOTED THAT THE REFERENCE TO THE DVO FOR E STIMATION OF ASSETS AS GIVEN ABOVE WAS MADE IN SUBSTITUTION TO THE PRIOR SECTION 142A WHIC H WAS INSERTED BY THE FINANCE (NO. 2) ACT, 2004 WITH RETROSPECTIVE EFFECT FROM 15.11.1972 AND AMENDED BY THE FINANCE ACT 2010, W.E.F 1.7.2010 WHICH READS AS UNDER: 142A. ESTIMATE BY VALUATION OFFICER IN CERTAIN CA SES.-(I) FOR THE PURPOSES OF MAKING AN ASSESSMENT OR REASSESSMENT UNDER THIS ACT, WHERE AN ESTIMATE OF THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69 OR SECTION 69B OR THE VAL UE OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE REFERRED TO IN SECTION 69A OR SECTION 69B O R FAIR MARKET VALUE OF ANY PROPERTY REFERRED TO IN SUB-SECTION (2) OF SECTION 56 IS REQUIRED TO BE MADE, THE ASSESSING OFFICER MAY REQUIRE THE VALUATION OFFICER TO MAKE AN ESTIMATE OF SUCH VALUE AND REPORT THE SAME TO HIM. (2) THE VALUATION OFFICER TO WHOM A REFERENCE IS MA DE UNDER SUB-SECTION (1) SHALL, FOR THE PURPOSE OF DEALING WITH SUCH REFERENCE, HAVE AL L THE POWER THAT HE HAS UNDER SECTION 38A OF THE WEALTH TAX ACT, 1957 (27 OF 1957) . (3) ON RECEIPT OF THE REPORT FROM THE VALUATION OFF ICER, THE ASSESSING OFFICER MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD, TAKE INTO ACCOUNT SUCH REPORT IN MAKING SUCH ASSESSMENT OR REASSESSMENT: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30TH DAY OF SEPTEMBER, 2004, AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONCLUSIVE ON OR BEFORE THAT DATE, EXCEPT IN CASES WHERE A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTIO N 153A. EXPLANATION. - IN THIS SECTION, 'VALUATION OFFICER' HAS THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 195 7).' 15. IT IS NOTED FROM THE HISTORY OF THE ENACTMENT M ADE BY THE PARLIAMENT CONFERRING POWER TO THE AO TO REFER TO THE VALUATION OFFICER WAS MAD E FROM FINANCE ACT, 2004 BY THE INTRODUCTION OF SECTION 142A BY FINANCE ACT, 2004. BEFORE THAT, THE POWER OF THE AO TO REFER TO VALUATION OFFICER WAS CONFINED TO ASCERTAIN THE FAI R MARKET VALUE OF CAPITAL ASSET IN RESPECT OF COMPUTATION OF CAPITAL GAINS UNDER SECTION 55A OF T HE ACT [WHICH WAS INSERTED BY THE TAXATION LAWS (AMENDMENT) ACT, 1972 W.E.F. 01.01.1973]. IT IS NOTED THAT SECTION 142A WAS BROUGHT IN SPECIFICALLY TO ENABLE THE AO TO REFER VALUATION T O THE DVO OF ASSETS, PROPERTY ETC SINCE BEFORE THAT IN THE CASE OF SMT. AMIYA BALA PAUL VS. CIT 2 62 ITR 407 (SC), THE HONBLE SUPREME COURT HELD THAT AO DID NOT HAD POWER TO REFER TO DV O FOR VALUATION IN RESPECT OF ASSETS, PROPERTIES ETC OTHER THAN FOR THE SPECIFIC PURPOSE U/S 55A OF THE ACT (I.E. FOR ASCERTAINING THE FAIR MARKET VALUE OF CAPITAL ASSET FOR COMPUTATION OF CA PITAL GAIN). IN THIS CONTEXT, IT WOULD BE GAINFUL TO REFER TO THE DECISION IN SMT. AMIYA BALA PAUL VS . CIT (SUPRA) WHEREIN THE HONBLE SUPREME COURT TOOK NOTE OF THE FACTS IN THAT CASE WHICH IS RE-PRODUCED AS UNDER: 13 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 THE ASSESSEE BUILT A HOUSE IN A SUBURB OF KOLKATA BETWEEN THE YEARS 1981 TO 1983. SHE FILED A RETURN IN RESPECT OF THE ASSESSMENT YEAR 1982 1983 IN WHICH SHE DISCLOSED THAT SHE HAD INVESTED AN AMOUNT OF RS.1,75,000 IN THE CONSTRUCTION OF THE HOUSE. THE RETURN WAS ACCEPTED BY THE INCOME TAX OFFICER (NOW KNOWN AS THE ASSESSING OFFI CER). IN RESPECT OF THE SUBSEQUENT ASSESSMENT YEAR, NAMELY 1983-84, THE ASSESSEE DISCL OSED THAT SHE HAD INVESTED A FURTHER AMOUNT OF RS 1,70,000 IN THE CONSTRUCTION OF THE HOUSE. TH IS WAS NOT ACCEPTED BY THE ASSESSING OFFICER, WHO REFERRED THE QUESTION OF THE CONSTRUCTION COST OF THE HOUSE TO THE VALUATION OFFICER UNDER SECTION 55(A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE VALUATION OFFICER SUBMITTED A REPORT TO THE ASSESSI NG OFFICER. ON THE BASIS OF THE REPORT, THE ASSESSING OFFICER RE-OPENED THE ASSESSMENT IN RESPE CT OF THE ASSESSMENT YEAR 1982-83. THE INCOME TAX OFFICER THEN MADE AN ADDITION OF RS 2,79 ,000 IN RESPECT OF THE ASSESSMENT YEAR 1982 - 83 AND RS 1,77,000 IN RESPECT OF THE ASSESSM ENT YEAR 1983- 84 AS UNDISCLOSED INVESTMENT IN THE CONSTRUCTION OF THE HOUSE . THE ASSESSEE'S APPEALS FROM THE ASSESSMENT ORDERS WERE TURNED DOWN BY THE COMMISSIONER OF INCOME TAX (APPEALS) GU AHATI. THE INCOME TAX APPELLATE TRIBUNAL, HOWEVER, FOLLOWING AN EARLIER DECISION, ALLOWED TH E ASSESSEE'S APPEAL AND HELD THAT THE ASSESSING OFFICER COULD NOT HAVE REFERRED THE QUESTION OF THE COST OF CONSTRUCTION OF THE ASSESSEE'S HOUSE TO THE VALUATION OFFICER . IN THIS BACKGROUND THE FOLLOWING QUESTION WAS REFERRED TO THE HIGH COURT UNDER SECTION 256 (2) OF THE ACT. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL ERRED IN LAW BY HOLDING THAT THE ASSESSING OFFICER CANNOT REFER THE MATTER TO THE VALUATION CELL(SIC) FOR ESTIMATING THE COST OF CONSTRUCTION OF THE HOUSE PROPERTY'. THE DIVISION BENCH OF THE HIGH COURT HELD THAT ALTHOUGH THE ASSESSING OFFICER COULD NOT HAVE REFERRED THE QUESTION OF THE COST OF CONSTRUCT ION OF THE ASSESSEE'S HOUSE TO THE VALUATION OFFICER UNDER SECTION 55 A OF THE ACT , HE HAD AMPLE POWER UNDER SECTIONS 131 (1), 133 (6) AND 142 (2) OF THE ACT TO ASK FOR A VALUATI ON REPORT FROM THE VALUATION OFFICER. IT WAS HELD THAT EACH OF THESE SECTIONS WERE 'ENABLING MAC HINERY PROVISIONS WHICH INVESTED AMPLE POWERS IN THE ASSESSING AUTHORITY', AND THAT ANY WRONG MENTION OF THE PROVISION ON THE REQUISITION MEMO WOULD NOT BE MATERIAL. ACCORDINGLY THE QUESTION REFERRED WAS ANSWERED IN THE AFFIRMATIVE AND AGAINST THE ASSESSEE . IN THE APPEAL BEFORE US, IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT A REFERENCE TO A VALUATION OFFICER COULD ONLY BE MADE STRICTLY IN TE RMS OF SECTION 55 A OF THE ACT AND THAT IF THE CIRCUMSTANCES JUSTIFYING THE REFERENCE UNDER THAT S ECTION WERE NOT PREVAILING, THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION TO OTHERWISE REFER THE MATTER TO THE VALUATION OFFICER. IT WAS FURTHER POINTED OUT THAT SECTION 55 A OF THE ACT ONLY ALLOWS FOR REFERENCE TO THE VALU ATION OFFICER FOR THE PURPOSES OF COMPUTING THE MARKET VA LUE OF PROPERTY IN CONNECTION WITH THE COMPUTATION OF CAPITAL GAINS. IT WAS ALSO SUBMITTED THAT REFERENCE TO THE VALUATION OFFICER HAD BEEN SPECIFICALLY PROVIDED FOR UNDER SECTION 55A AND THAT THIS IMPLIED THAT A REFERENCE TO THE VALUATION OFFICER COULD NOT BE MADE UNDER ANY OF TH E OTHER PROVISIONS WHICH GENERALLY EMPOWERED THE ASSESSING OFFICER TO ASCERTAIN THE IN COME OF THE ASSESSEE. THE SUBMISSION OF THE APPELLANT WAS THAT IF THE POWER TO REFER THE DETERM INATION OF THE COST OF CONSTRUCTION TO THE VALUATION OFFICER WAS OTHERWISE AVAILABLE TO THE AS SESSING OFFICER UNDER THE OTHER PROVISIONS OF THE ACT, IT WAS NOT NECESSARY TO SPECIFICALLY EMPOW ER THE ASSESSING OFFICER UNDER SECTION 55A . FINALLY, IT IS SUBMITTED THAT THE VALUATION OFFICER IS APPOINTED UNDER THE WEALTH TAX ACT AND THAT HE COULD EXERCISE THE POWER ONLY IN THE MANNER PRESCRIBED BY THAT ACT OR BY ANY OTHER STATUTORY PROVISION LIKE SECTION 55 A OF THE ACT, AND THAT HE COULD NOT BE CALLED UPON TO DISCHARGE FUNCTIONS NOT STATUTORILY PRESCRIBED, IN HIS CAPACITY AS A VALUATION OFFICER. 14 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 16. AND THEREAFTER, THE HONBLE SUPREME COURT AFTER CONSIDERING THE CONTENTION OF UOI/REVENUE AT LENGTH AND AFTER REFERRING TO THE A OS POWER U/S. 131(1), 142(2), 133(6), 55A OF THE ACT ; AND PROVISIONS OF WEALTH TAX 1957 ACT, SECTION 2, CLAUSE (R), 16A, 37(1) VIS A VIS POWER OF CIVIL COURT UNDER THE CODE OF CIVIL PROCED URE, 1908, SECTION 76 TO 78 OF CODE OF CIVIL PROCEDURE HELD THAT FROM THIS IT IS CLEAR THAT WHENEVER REFERENCE TO A VALUATION OFFICER APPOINTED UNDER THE WEALTH TAX ACT IS PERMISSIBLE UNDER THE INCOME TAX ACT , IT HAS BEEN STATUTORILY SO PROVIDED. APART FROM THE AFORESAID, A VALUATION OFFICER IS AP POINTED UNDER THE WEALTH TAX ACT AND CAN DISCHARGE FUNCTIONS WITHIN THE STATUTORY LIMITS UND ER WHICH HE IS APPOINTED. IT IS NOT OPEN TO A VALUATION OFFICER TO ACT IN HIS CAPACITY AS VALUATI ON OFFICER OTHERWISE THAN IN DISCHARGE OF HIS STATUTORY FUNCTIONS. HE CANNOT BE CALLED UPON NOR WOULD HE HAVE THE JURI SDICTION TO GIVE A REPORT TO THE ASSESSING OFFICER UNDER THE INCOME TAX ACT EXCEPT WHEN A REFERENCE IS MADE UNDER AND IN TERMS OF SECTION 55 A OR TO A COMPETEN T AUTHORITY EXCEPT UNDER SECTION 269L . WE ARE THEREFORE OF THE VIEW THAT THE HIGH COURT IN CORRECTLY ANSWERED THE QUESTION REFERRED TO IT IN THE AFFIRMATIVE. THE TRIBUNAL HAD NOT ERRED IN HOLDING THAT THE ASSE SSING OFFICER CANNOT REFER THE MATTER TO THE VALUATION OF FICER FOR ESTIMATING THE COST OF CONSTRUCTION OF THE HOUSE PROPERTY. THE APPEAL IS A CCORDINGLY ALLOWED AND THE DECISION OF THE HIGH COURT SET ASIDE. THERE WILL BE NO ORDER AS TO COSTS.[EMPHASIS GIVEN BY US] 17. IN THE LIGHT OF THE DECISION OF THE THE HONBLE SUPREME COURT IN SMT. AMIYA BALA PAUL VS. CIT (SUPRA) THE PARLIAMENT GAVE POWER TO AO BY THE INTRODUCTION OF SECTION 142A BY FINANCE ACT, 2004 (SUPRA). LATER ON THE PARLIAMENT TAKING NOTE THAT THE AUTHORIZED OFFICER OF THE SEARCHED PARTY U/S. 132 DOES NOT HAVE THE POWER TO REFER FOR VALUATION TO THE VALUATION OFFICER INSERTED SUB-SECTION (9B) IN SECTION 132 OF THE ACT BY FINANCE ACT, 2017 I.E. W.E.F. 01.04.2017. SUB-SECTION (9B) OF SECTION 132 OF THE ACT READS AS UNDER: SEARCH AND SEIZURE S.132 . (9). (9A) (9B) .. (9C) (9D) THE AUTHORIZED OFFICER MAY, DURING THE COURSE OF THE SEARCH OR SEIZURE OR WITHIN A PERIOD OF SIXTY DAYS FROM THE DATE ON WHICH THE LAST OF THE A UTHORIZATIONS FOR SEARCH WAS EXECUTED, MAKE A REFERENCE TO A VALUATION OFFICER REFERRED TO IN SEC TION 142A, WHO SHALL ESTIMATE THE FAIR MARKET VALUE OF THE PROPERTY IN THE MANNER PROVIDED UNDER THAT SECTION AND SUBMIT A REPORT OF THE ESTIMATE TO THE SAID OFFICER WITHIN A PERIOD OF SIX TY DAYS FROM THE DATE OF RECEIPT OF SUCH REFERENCE. 18. THUS, FROM THE AFORESAID LEGISLATIVE HISTORY IT CAN BE NOTED THAT THE AUTHORIZED OFFICER OF THE SEARCH DDIT (INV.)/ADIT (INV.) HAS BEEN EMPO WERED TO MAKE REFERENCE TO THE VALUATION 15 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 OFFICER ONLY AFTER 01.04.2017 AND NOT BEFORE THAT D ATE. HERE IN THIS CASE, ADMITTEDLY THE SEARCH HAS TAKEN PLACE ON 13.03.2014 AND ON A PERUSAL OF T HE VALUATION REPORT DATED 18.12.2014, IT IS NOTED THAT THE REFERENCE TO THE VALUATION OFFICER W AS GIVEN BY DDIT (INV.) DATED 11.07.2014. THUS, WE FIND THAT WHEN THE REFERENCE TO THE VALUAT ION OFFICER WAS MADE BY THE DDIT (INV.)/ADIT (INV.) BOTH THE AUTHORITIES DID NOT HAD POWER/JURISDICTION TO REFER FOR VALUATION OF THE ASSETS OF THE ASSESSEE PURSUANT TO THE SEARCH A ND FOR THIS LEGAL PROPOSITION, WE RELY ON THE REASONING/RATIO OF THE DECISION OF THE HONBLE SUPR EME COURT IN SMT. AMIYA BALA PAUL (SUPRA). 19. FURTHER, IT IS NOTED THAT IN THIS CASE WHEN THE AO DURING ASSESSMENT PROCEEDINGS, CONFRONTED THE ASSESSEE WITH THE VALUATION REPORT D ATED 18.12.2014 PURSUANT TO THE REFERENCE BY THE DDIT (INV.) THE ASSESSEE OBJECTED, INTER ALIA, TO THE METHOD OF VALUATION ADOPTED BY THE DVO AND ALSO BROUGHT TO THE AOS NOTICE THE FACT TH AT DDIT (INV.) DID NOT HAD THE POWER ON 11.07.2014 TO CALL FOR THE VALUATION REPORT FROM TH E DVO. IN THE LIGHT OF THE AFORESAID OBJECTION RAISED BY THE ASSESSEE, THE AO REQUESTED THE DVO TO RECONSIDER THE VALUATION VIDE LETTER DATED 22.01.2016 WHICH WAS NEVER ANSWERED BY THE DVO, THE REFORE, THE AO COMPLETED THE ASSESSMENT BASED ON THE VALUATION REPORT SUBMITTED DATED 18.12.2014 (INITIAL REPORT) VIDE ORDER DATED 30.03.2016. FROM A PLAIN READING OF SECTION 142A OF THE ACT IT CAN BE NOTED THAT THE AO ENJOYED THE POWER TO MAKE A REFERENCE TO THE VALUAT ION OFFICER TO ESTIMATE THE VALUE INCLUDING THE FAIR MARKET VALUE OF ANY ASSET, PROPERTY OR INV ESTMENTS AND THEREAFTER THE VALUATION OFFICER SHALL ESTIMATE THE VALUE OF THE ASSETS, PROPERTY OR INVESTMENTS AFTER GIVING OPPORTUNITY TO THE ASSESSEE TO BE HEARD AND IN CASE THE ASSESSEE DOES NOT COOPERATE THEN THE DVO CAN ESTIMATE THE VALUE OF THE ASSET, PROPERTY OR INVESTMENTS ON THE BASIS OF BEST OF HIS JUDGMENT AND SUBMIT REPORT WITHIN A PERIOD OF SIX MONTHS FROM THE END O F THE MONTH IN WHICH REFERENCE IS MADE. IT SHOULD BE BORNE IN MIND THAT THE REFERENCE MADE BY THE AO U/S. 142A(1) OF THE ACT IS A STATUTORY REFERENCE AND, THEREFORE, THE REPORT SENT BY THE VALUATION OFFICER U/S. 142A(6) OF THE ACT IS ALSO A STATUTORY REPORT AND, THEREFORE, TIME LIMIT PRESCRIBED THEREIN ARE STATUTORILY LIMITED BY TIME AND THE REPORT IF NOT MADE WITHIN THE STATU TORY TIME I.E. SIX MONTHS FROM THE END OF THE MONTH FROM WHICH THE REFERENCE IS MADE WILL BE CONS IDERED AS AN ARBITRARY/WHIMSICAL EXERCISE OF POWER BY THE VALUATION OFFICER WITHOUT ANY REGAR D TO THE STATUTORY LIMITED TIME PRESCRIBED BY THE STATUTE AND IT WOULD VITIATE THE ACTION OF DVO. IN THIS CASE, WE FOUND THAT ON 13.03.2014 THE SEARCH HAPPENED AND THE REFERENCE WAS MADE BY THE D DIT (INV.) ON 11.07.2014 AND THE DVO SENT THE VALUATION REPORT ON 18.12.2014 (INITIAL DV O REPORT) WHICH WE HAVE ALREADY FOUND THAT THE DDIT/ADIT (INV.) DID NOT HAD THE POWER/JURISDIC TION TO MAKE THE REFERENCE TO THE VALUATION OFFICER. THEREFORE, THE ACTION OF LD. CIT(A) ALLOW ING THE APPEAL ON MERITS CANNOT BE SAID TO BE LEGALLY ERRONEOUS IS IN LINE WITH THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN SMT. AMIYA BALA PAUL (SUPRA), SINCE DDIT (INV) DID NOT H AD THE POWER TO REFER TO DVO VALUATION OF CONSTRUCTION OF BUILDINGS. EVEN THOUGH THE AO IN T HE ASSESSMENT ORDER STATES THAT WHEN THE ASSESSEE OBJECTED TO THE DVO REPORT DATED 18.12.201 4, HE REQUESTED THE DVO TO RE-VALUE THE PROPERTIES, WHICH ACTION OF AO CAN BE TERMED AS AN ACTION TO CORRECT THE ERROR OF DDIT (INV.) AND SO THE AO BY MAKING A REQUEST FOR RE-VALUATION ON 22.01.2016 CAN BE TERMED AS A VALID REQUISITION/REFERENCE TO THE DVO AND FOR REASONS BE ST KNOWN TO THE DVO, HE DID NOT FILE ANY REPORT. EVEN AT THE APPELLATE STAGE, THE LD. CIT(A) EXERCISING HIS CO-TERMINUS POWER AS THAT OF THE AO MADE AN ATTEMPT TO REFER THE VALUATION TO TH E VALUATION OFFICER (WHICH HE HAS DISCUSSED AT PAGE 26 OF HIS ORDER) THROUGH THE AO FROM 29.01. 2019 AND THEREAFTER, THE LD. CIT(A) HAD ISSUED SEVERAL REMINDERS TO THE DVO VIDE LETTERS DA TED 27.03.2019, 02.04.2019, 12.04.2019, 06.05.2019, 24.05.2019 AND 02.07.2019. HOWEVER, TH E AO REPORTS THAT INSPITE OF ALL THESE REMINDERS, THE DVO DID NOT BUDGE AND FILED ANY VALU ATION REPORT. IN THE AFORESAID FACTS AND CIRCUMSTANCES THE LD. CIT(A) MAKES THE FINDING THAT THE FAILURE OF THE DVO TO SUBMIT VALUATION REPORT WITHIN SIX MONTHS OF MAKING OF VALID REFEREN CE, THE DVOS INITIAL VALUATION REPORT DATED 18.12.2014 COULD NOT HAVE BEEN RELIED UPON TO MAKE ADDITIONS CANNOT BE FAULTED SINCE IT IS IN LINE WITH THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN SMT. AMIYA BALA PAUL (SUPRA). THE NON-SUBMISSION OF DVO REPORT AFTER REF ERENCE BY AO AND LD CIT(A) WITHIN THE STATUTORY PERIOD HAS NOT BEEN CHALLENGED NOR THIS FACTUAL FINDING COULD BE CONTROVERTED BY THE 16 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 REVENUE BEFORE US AND, SO IT ATTAINS FINALITY. IN THE RESULT, WE FIND THAT THERE IS NO VALID VALUATION REPORT SUBMITTED BY DVO ON REFERENCE BY A O/LD. CIT(A). 20. MOREOVER, THE LD. AR DREW OUR ATTENTION TO PAGE 20 OF LD. CIT(A)S IMPUGNED ORDER WHEREIN HE [LD CIT(A)] HAS REPRODUCED HIS OWN LETTE R DATED 29.01.2019 WHICH WAS WRITTEN TO THE AO FOR OBTAINING THE REPORT OF THE DVO ; AND TH E LD AR POINTED OUT THAT IN THIS LETTER THE LD. CIT(A) HAS CATEGORICALLY OBSERVED . THE FIRST REPORT OF DVO WAS GIVEN WITHOUT HEARING THE ASSESSEE SO, ACCORDING TO LD. AR, THE INITI AL DVO REPORT DATED 18.12.2014 SUBMITTED BY DVO PURSUANT TO DDIT (INV.) REFERENCE DATED 11. 07.2014 IS FRAGILE FOR VIOLATION OF NATURAL JUSTICE. WE FIND FORCE IN THIS SUBMISSION OF LD. A R THAT DVO BEFORE PREPARATION OF HIS VALUATION REPORT DATED 18.12.2014 SHOULD HAVE GIVEN OPPORTUNITY TO ASSESSEE AND FAILURE TO DO SO WILL VITIATE THE VALUATION REPORT DATED 18.12.2014 FOR VIOLATION OF NATURAL JUSTICE AND COULD NOT HAVE BEEN ACTED UPON BY THE AO BEING BAD IN LAW. 21. TO SUM UP THE FACTS, WE NOTE THAT THE AO HAD MA DE THE ENTIRE ADDITION IN ALL ASSESSMENT YEARS BASED ON THE INITIAL VALUATION REP ORT SUBMITTED BY THE VALUATION OFFICER PURSUANT TO THE REFERENCE MADE BY THE DDIT (INV.) D ATED 11.07.2014 WHEN HE [DDIT (INV.)] DID NOT HAD THE POWER TO MAKE THE REFERENCE TO THE DVO WHICH POWER HE ACQUIRED AS NOTED ABOVE ONLY ON 01.04.2017 BY FINANCE ACT, 2017 U/S. 132(9D ) OF THE ACT. AND IT HAS ALSO BEEN NOTED THAT NEITHER THE DVO FILED THE VALUATION REPORT PU RSUANT TO THE AOS REFERENCE DATED 22.01.2016 NOR THE DVO FILED THE VALUATION REPORT PURSUANT TO THE LD. CIT(A)S REFERENCE THROUGH THE AO BY LETTER DATED 29.01.2019. THUS, WE NOTE THAT THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THE INITIAL VALUATION REPORT DATED 18.11.2014 WHICH WAS PURSUANT TO THE DDIT(INV.)S REFERENCE WHICH HE [DDIT (INV)] HAD NO POWER TO DO CALL FOR; AND THAT DURING ASSESSMENT PROCEEDINGS WHEN THE AO SHOW CAUSED THE ASSESSEE WITH THE VALUA TION REPORT AS CONTEMPLATED IN SUB-SECTION (7) OF SECTION 142A OF THE ACT, THE ASSESSEE CONTES TED/CHALLENGED, INTER ALIA, THE METHOD OF VALUATION ADOPTED BY THE VALUATION OFFICER, WHICH P ROMPTED THE AO TO CALL FOR THE REFERENCE OF THE VALUATION OFFICER SINCE DDIT (INV.) HAD NO POWE R TO CALL FOR THE VALUATION REPORT. AND WE HAVE NOTED THEREAFTER THE DVO DID NOT SUBMIT ANY RE PORT CALLED FOR BY AO OR LD. CIT(A). 22. IN THE AFORESAID FACTS AND CIRCUMSTANCES, WE HO LD THAT THE DDIT (INV.) COULD NOT HAVE REFERRED THE QUESTION OF COST OF CONSTRUCTION/VALUA TION OF THE ASSESSEES BUILDING TO THE VALUATION OFFICER IN THE YEAR 2014 ; AND THEREAFTER, SINCE TH E DVO DID NOT PRESENT THE VALUATION REPORT AFTER AO HAS REFERRED THE VALUATION VIDE LETTER DAT ED 22.01.2016 AS WELL AS THE LD. CIT(A) WITHIN SIX MONTHS FROM THE END OF THE MONTH OF THE REFERENCE, THE LD. CIT(A) RIGHTLY HELD THAT DVO WAS BOUND BY LAW [SEC. 142A(6)] TO HAVE SUBMITT ED THE VALUATION REPORT WITHIN THE STATUTORY TIME LIMIT, WHICH VIEW WE ENDORSE. WE NO TE THAT THE ASSESSEE IS AN EDUCATIONAL INSTITUTION AND ITS ACCOUNTS ARE DULY AUDITED. WE N OTE THAT NEITHER THE SEARCH PARTY NOR THE AO COULD POINT OUT ANY MISTAKE IN THE CORRECTNESS OR C OMPLETENESS OF THE BOOKS OF ACCOUNT PRESENTED BY THE ASSESSEE BEFORE THE AUTHORITIES. WE ALSO FIND THAT THE SEARCH PARTY PURSUANT TO SEARCH U/S 132 OF THE ACT DID NOT EVEN VISITED THE EDUCATIONAL INSTITUTION WHICH FACT IS EVIDENT FROM THE PERUSAL OF PANCHNAMA WHICH SHOWS THAT THE SEARCH TEAM HAS ONLY SEARCHED THE ADMINISTRATIVE OFFICE SITUATE AT DWARIKA BUILDING , 7, SARAT BOSE ROAD, KOLKATA-700020 AND NOT AT THE CAMPUS OF EDUCATIONAL INSTITUTION SITUAT ED AT NILGUNJ ROAD, PANIHATI, KOLKATA-700 114, WHICH IS KILOMETERS AWAY FROM SEARCHED PREMISE S . SO, FROM THE PERUSAL OF PANCHNAMA AND THE ASSESSMENT ORDERS, WE FIND THAT THE REFERENCE M ADE BY DDIT (INV.) FOR VALUATION OF THE PROPERTIES ON 01.04.2014 WAS WITHOUT ANY INCRIMINAT ING MATERIALS WHICH WERE UN-EARTHED DURING SEARCH [ORAL OR DOCUMENTARY WHICH COULD HAVE SUGGES TED THAT THE ASSESSEE HAS SHOWN LESS INVESTMENT IN ITS BOOKS FOR BUILDING CONSTRUCTION] CONSEQUENTLY DDIT(INV) ERRED IN MAKING REFERENCE TO DVO AND WHEN ADMITTEDLY DDIT(INV) DID NOT ENJOY THE POWER TO DO SO. IN THE AFORESAID FACTS AND CIRCUMSTANCES THE LD. CIT(A) MA KES THE FINDING THAT THE FAILURE OF THE DVO TO SUBMIT VALUATION REPORT WITHIN SIX MONTHS OF MAK ING OF VALID REFERENCE, THE DVOS INITIAL VALUATION REPORT DATED 18.12.2014 COULD NOT HAVE BE EN RELIED UPON TO MAKE ADDITIONS CANNOT BE FAULTED IS IN LINE WITH THE RATIO OF THE DECISION O F THE HONBLE SUPREME COURT IN SMT. AMIYA 17 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 BALA PAUL (SUPRA). FURTHER AT PARA 20 (SUPRA), WE H AVE TAKEN NOTE OF THE LD CIT(A) OBSERVATION IN THE LETTER DATED 29.01.2019 WHEREIN HE HAS OBSER VED THAT DVO DID NOT GIVE OPPORTUNITY TO ASSESSEE BEFORE PREPARATION/SUBMISSION OF DVO REPOR T DATED 18.12.2014 (INITIAL DVO REPORT), SO THIS DVO REPORT IS FRAGILE FOR VIOLATION OF NATU RAL JUSTICE AND RESULTANTLY BAD IN LAW AND COULD NOT HAVE BEEN THE SOLE BASIS FOR ADDITION CONSEQUENTLY, WHEN WE KEEP ASIDE THE INITIAL VALUATION REPORT OF THE DVO DATED 18.12.2014 FOR TH E LEGAL INFIRMITIES DISCUSSED (SUPRA) AND ON THE REASONING/RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN SMT. AMIYA BALA PAUL (SUPRA), WE FIND THERE IS NO OTHER EVIDENCE TO SUPP ORT THE ADDITION, SO THE ADDITION MADE BY THE AO IN ALL THE ASSESSMENT YEARS FROM AY 2008-09 TO A Y 2013-14 HAS TO BE DELETED AND LD. CIT(A)S ACTION CANNOT BE FAULTED AND WE CONFIRM IT ON THE REASONS GIVEN SUPRA AND DISMISS ALL THE REVENUE APPEALS. 23. NOW COMING TO THE LEGAL ISSUE RAISED BY THE ASS ESSEE, WE PROCEED TO ANSWER THE QUESTION. WHETHER IN ABSENCE OF ANY INCRIMINATING M ATERIAL FOUND IN THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE TRUST (ADMINISTRATIVE OFFI CE ONLY), THE ADDITIONS MADE IN THE ASSESSMENTS OF THE ASSESSEE TRUST WHICH WERE UNABATED [SINCE AS SESSMENT OF AY 2008-09 TO AY 2012-13 WAS NON-PENDING] ON THE DATE OF SEARCH 13.03.2014, COUL D BE HELD TO BE SUSTAINABLE ON FACTS AND IN LAW? 24. WE NOTE THAT ON THE DATE OF SEARCH I.E. 13-03-2 014, ADMITTEDLY INCOME TAX ASSESSMENT FOR AY 2008-09 TO AY 2012-13 OF THE ASSESSEE TRUST WAS UNABATED SINCE ASSESSMENTS WERE NOT PENDING BEFORE THE AO ON THE DATE OF SEARCH ON 13.0 3.2014. WE NOTE THAT THE PROVISIONS OF SECTION 153A OF THE ACT, FORMS PART OF CHAPTER XIV OF THE ACT CONTAIN SPECIAL PROVISIONS FOR COMPLETING ASSESSMENTS IN CASE OF SEARCH CONDUCTED U/S 132 OF THE ACT OR REQUISITION MADE U/S 132A OF THE ACT. THESE PROVISIONS CAN BE INVOKED ON LY IN CASES WHERE THE INCOME-TAX DEPARTMENT HAS EXERCISED ITS EXTRA ORDINARY POWERS OF CONDUCTING SEARCH AND SEIZURE OPERATIONS AFTER COMPLYING WITH STRINGENT PRE-CONDITIONS PRESC RIBED IN SECTION 132 OF THE ACT. WE DO NOT DENY THE LD. CIT, DR'S CONTENTION THAT ONCE A SEARC H U/S 132 IS CONDUCTED AGAINST A PERSON, THEN IRRESPECTIVE WHETHER ANY INCRIMINATING MATERIAL IS FOUND, THE AO IS REQUIRED TO PROCEED AGAINST SUCH PERSON FOR COMPLETING THE ASSESSMENTS U/S 153A OF THE ACT FOR THE SPECIFIED SIX ASSESSMENT YEARS. TO THIS EXTENT, THERE IS NO QUARREL. HOWEVER WE FIND THAT SECTION 153A ITSELF CREATES THE FINE DISTINCTION/DIFFERENTIATION AMONGST SPECIFIED SIX ASSESSMENT YEARS DEPENDING WHETHER PRIOR TO THE DATE OF SEARCH, THE ASSESSMENT PROCEEDINGS A RE PENDING OR NOT BEFORE THE AO. WE NOTE THAT THE RELEVANT SECTION ITSELF CLARIFIES THAT WHE RE AN ASSESSMENT WAS ALREADY COMPLETED AGAINST AN ASSESSEE AND ANY APPEALS OR FURTHER PROCEEDINGS ARE PENDING, THEN SUCH APPEALS OR OTHER PROCEEDINGS DO NOT ABATE. WE SHOULD KEEP IN MIND TH AT MERELY BECAUSE AN ASSESSEE IS SUBJECTED TO SEARCH U/S 132 OF THE ACT, SUCH ACTION BY ITSELF DOES NOT GIVE CARTE BLANCHE TO THE DEPARTMENT TO SUBJECT SUCH AN ASSESSEE TO THE RIGORS OF THE AS SESSMENT AFRESH FOR ALL THE SIX YEARS. IT IS FOR THIS REASON THAT THE PARLIAMENT IN ITS WISDOM HAS C ATEGORICALLY CREATED TWO CLASSES AMONG THE SIX YEARS, (A) UN-ABATED ASSESSMENT AND (B) ABATED ASSE SSMENTS. CONSEQUENT TO A SEARCH CONDUCTED U/S 132 OF THE ACT, THE AO IS REQUIRED TO ISSUE NOT ICES U/S 153A OF THE ACT TO ASSESS THE INCOME OF THE ASSESSEE FOR SIX ASSESSMENT YEARS PRECEDING THE DATE OF SEARCH. THESE SIX ASSESSMENT YEARS COMPRISE OF ASSESSMENTS WHICH ARE NOT ABATED ( NON- PENDING ASSESSMENT BEFORE AO ON THE DATE OF SEARCH ); AND ASSESSMENTS WHICH ARE PENDING BEFO RE THE AO ON THE DATE OF SEARCH, WHICH WOULD BE TREATED AS ABATED. IN THE CASE OF ABATED A SSESSMENTS, THE AO IS FREE TO FRAME THE ASSESSMENT IN REGULAR MANNER AND DETERMINE THE CORR ECT TAXABLE INCOME FOR THE RELEVANT YEAR INTER ALIA INCLUDING THE UNDISCLOSED INCOME UN-EART HED DURING SEARCH, HAVING REGARD TO THE PROVISIONS OF THE ACT. HOWEVER, IN RELATION TO UNAB ATED ASSESSMENTS (AYS), WHICH WERE NOT PENDING ON THE DATE OF SEARCH, THERE IS A RESTRICTI ON ON THE POWERS OF THE AO. IN CASE OF UNABATED ASSESSMENTS, THE AO CAN RE-ASSESS THE INCOME ONLY T O THE EXTENT AND WITH REFERENCE TO ANY INCRIMINATING MATERIAL WHICH THE REVENUE HAS UNEART HED IN THE COURSE OF SEARCH. MERELY BECAUSE AN ASSESSEE IS SUBJECTED TO SEARCH, HE CANNOT BE PL ACED ON A DIFFERENT PEDESTAL OR PUT IN A MORE DISADVANTAGEOUS POSITION THAN AN ASSESSEE WHO IS NO T SUBJECTED TO SEARCH UNLESS IN THE COURSE OF SEARCH SOME INCRIMINATING DOCUMENTS OR EVIDENCE OR INFORMATION OR MATERIAL IS GATHERED BY THE 18 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 INVESTIGATING AUTHORITIES SO AS TO VEST THE AO WITH THE NECESSARY POWERS TO MAKE ADDITIONS TO THE TOTAL INCOME IN RELATION TO ASSESSMENTS WHICH DID N OT ABATE ON ACCOUNT OF SEARCH. CONSIDERING THESE ASPECTS THE HON'BLE DELHI HIGH COURT IN THE C ASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HELD AS UNDER:- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DE CISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQ UIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE O F THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE LD AOS AS A FRESH EXERCISE. THE LD AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE LD AO 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 AS SESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSE D INCOME WOULD BE BROUGHT TO TAX'. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MAD E ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHE R POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE LD AO WHICH CAN BE RELATED TO TH E EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DA TE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETE ASSESSMENT PROCEEDINGS. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE LD AO. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE LD AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL U NEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UND ISCLOSED 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.' 38. THE PRESENT APPEALS CONCERN AYS 2002-03, 2005-0 6 AND 2006-07, ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MAD E TO THE INCOME ALREADY ASSESSED. THE HONBLE APEX COURT IN THE CASE OF CIT V. SINHG AD TECHNICAL EDUCATION SOCIETY 397 ITR 344 IN THE CONTEXT OF SECTION 153C OF THE ACT H AS HELD AS UNDER: 19 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 18) IN THIS BEHALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS WHI CH WERE SEIZED DID NOT ESTABLISH ANY CO- RELATION, DOCUMENT-WISE, WITH THESE FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONING TO BE L OGICAL AND VALID, HAVING REGARD TO THE PROVISIONS OF SECTION 153C OF THE ACT. 25. WE FIND THAT THE HON'BLE DELHI HIGH COURT WHILE ADJUDICATING THE APPEAL IN THE CASE OF CIT VS KABUL CHAWLA (2016) 380 ITR 573 HAD TAKEN JU DICIAL NOTE OF HOST OF THE EARLIER DECISIONS IN THE CASES OF CIT VS ANIL KUMAR BHATIA REPORTED IN (2013) 352 ITR 493 (DEL) ; CIT VS CHETAN DAS LACHMAN DAS REPORTED IN (2012) 211 TA XMAN 61 (DEL HC) ; MADUGULA VENU VS DIT REPORTED IN (2013) 215 TAXMAN 298 (DEL HC) ; CA NARA HOUSING DEVELOPMENT CO. VS DCIT REPORTED IN (2014) 49 TAXMANN.COM 98 (KAR HC) ; FIL ATEX INDIA LTD VS CIT REPORTED IN (2014) 229 TAXMAN 555 (DEL HC) ; JAI STEEL (INDIA) VS ACIT REPORTED IN (2013) 219 TAXMAN 223 (DEL HC) ; CIT VS MURLI AGRO PRODUCTS LTD REPORTED IN (2 014) 49 TAXMANN.COM 172 (BOM HC) ; CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA ) LTD REPORTED IN (2015) 374 ITR 645 (BOM HC) AND ALL CARGO GLOBAL LOGISTICS LTD VS DCIT REPORTED IN (2012) 137 ITD 287 (MUM ITAT) (SB). WE ALSO FIND THAT REVENUES SLP AGAINST THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) WAS DISMI SSED BY THE HON'BLE APEX COURT WHICH IS REPORTED IN 380 ITR (ST.) 4 (SC). 26. WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HI GH COURT IN THE CASE OF PRINCIPAL CIT VS M/S SALASAR STOCK BROKING LTD IN G.A.NO. 1929 OF 20 16 ITAT NO. 264 OF 2016 DATED 24.8.2016 ENDORSED THE AFORESAID VIEW OF HON'BLE DE LHI HIGH COURT IN KABUL CHAWLA'S CASE. THE HONBLE HIGH COURT ALSO PLACED RELIANCE ON THEI R OWN DECISION IN THE CASE OF CIT VS VEERPRABHU MARKETING LTD REPORTED IN (2016) 73 TAXM ANN.COM 149 (CAL HC) AND HELD AS FOLLOWS: SUBJECT MATTER OF CHALLENGE IS A JUDGEMENT AND ORD ER DATED 18TH DECEMBER, 2015 BY WHICH THE LEARNED TRIBUNAL DISMISSED AN APPEAL PREFERRED BY T HE REVENUE REGISTERED AS ITA NO.1775/KOL/2012 AND ALLOWED A CROSS-OBJECTION REGI STERED AS CO-30/KOL/2013 BOTH PERTAINING TO THE ASSESSMENT YEAR 2005-06. THE LEARNED TRIBUNA L WAS OF THE OPINION THAT THE ASSESSING OFFICER HAD NO JURISDICTION UNDER SECTION 153A OF T HE INCOME TAX ACT TO REOPEN THE CONCLUDED CASES WHEN THE SEARCH AND SEIZURE DID NOT DISCLOSE ANY INCRIMINATING 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 28 TH AUGUST, 2014. THE AGGRIEVED REVENUE HAS COME UP IN APPEAL. MR. BAGARIA, LEARNED ADVOCATE APPEARING FOR THE ASS ESSEE, SUBMITTED THAT MORE OR LESS AN IDENTICAL VIEW WAS TAKEN BY THIS BENCH IN ITA 661/2 008 [CIT VS. VEERPRABHU MARKETING LTD.] WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED - 'WE ARE IN AGREEMENT WITH THE VIEWS EXPRESSED BY TH E KARNATAKA HIGH COURT THAT INCRIMINATING MATERIAL IS A PRE- REQUISITE BEFORE POWER COULD HAV E BEEN EXERCISED UNDER SECTION153C READ WITH SECTION 153A. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS MA DE 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 SECT ION 153C READ WITH SECTION 153A. THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE UP HELD BY THE CIT(A) BUT THE LEARNED TRIBUNAL DELETED THOSE DISALLOWANCES.' 20 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 IN THAT VIEW OF THE MATTER, WE ARE UNABLE TO ADMIT THE APPEAL. THE APPEAL IS, THEREFORE, DISMISSED. 27. CONSIDERING THE JUDICIAL PRECEDENTS (SUPRA) ON THE SUBJECT, PARTICULARLY THE DECISION OF THE HON'BLE JURISDICTIONAL CALCUTTA HIGH COURT IN T HE CASE OF PCIT VS SALASAR STOCK BROKING LTD. (SUPRA) WHICH IS BINDING UPON THIS TRIBUNAL AS WELL AS THE HONBLE APEX COURT DECISION IN CIT V. SINHGAD TECHNICAL EDUCATION SOCIETY ( SUPRA) , WE HOLD THAT IN THE CASE OF UNABATED ASSESSMENTS OF AN ASSESSEE, NO ADDITION IS PERMISSI BLE IN THE ORDER U/S 153A OF THE ACT UNLESS IT IS BASED ON ANY TANGIBLE, COGENT AND RELEVANT INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH QUA THE ASSESSEE AND QUA THE AY. 28. IN VIEW OF THE ABOVE LEGAL POSITION, LET US NOW PROCEED TO EXAMINE WHETHER THE ADDITIONS/DISALLOWANCES WHICH THE AO MADE IN THE OR DERS IMPUGNED IN THIS APPEAL [AY 2008-09 TO AY 2012-13] WAS BASED ON OR MADE WITH REFERENCE TO ANY INCRIMINATING MATERIAL/DOCUMENT FOUND IN THE COURSE OF SEARCH. WE NOTE THAT IN THE ASSESSMENT ORDERS FOR AY 2008-09 TO AY 2012-13, THE AO HAVE NOT REFERRED TO ANY MATERIAL U N-EARTHED DURING SEARCH CONDUCTED ON 13.03.2014 IN THE ORDERS IMPUGNED TO JUSTIFY THE AD DITIONS. THERE IS NO WHISPER/MENTION OF ANY MATERIAL LEAVE ALONE ANY INCRIMINATING MATERIAL SEI ZED DURING SEARCH TO JUSTIFY THE ADDITION IN THESE UN-ABATED ASSESSMENTS OTHER THAN THE IN-VALID VALUATION REPORT AS DISCUSSED SUPRA. THE VALUATION REPORT OF DVO IN THE FACTS DISCUSSED CANN OT BE HELD TO BE INCRIMINATING MATERIAL, SINCE IT IS NOT A FALL OUT OF ANY INCRIMINATING MATERIAL UN-EARTHED DURING SEARCH TO SUGGEST ANY INVESTMENT IN BUILDING WHICH IS OVER AND ABOVE THE INVESTMENT SHOWN BY THE ASSESSEE IN ITS AUDITED BOOKS. AND AS FOUND BY US, THE SEARCH PARTY PURSUANT TO SEARCH U/S 132 OF THE ACT DID NOT EVEN VISITED THE EDUCATIONAL INSTITUTION WHICH FACT IS EVIDENT FROM THE PERUSAL OF PANCHNAMA WHICH SHOWS THAT THE SEARCH TEAM HAS ONLY SEARCHED THE ADMINISTRATIVE OFFICE SITUATE AT DWARIKA BUILDING, 7, SARAT BOSE ROAD, KOLKATA-700 020 AND NOT AT THE CAMPUS OF EDUCATIONAL INSTITUTION SITUATED AT NILGUNJ ROAD, PANIHATI, KO LKATA-700 114 . SO, FROM THE PERUSAL OF PANCHNAMA AND THE ASSESSMENT ORDERS, IT CAN BE SAFE LY INFERRED THAT THE REFERENCE MADE BY DDIT (INV.) FOR VALUATION OF THE PROPERTIES ON 01.0 4.2014 WAS WITHOUT ANY INCRIMINATING MATERIALS FOUND DURING SEARCH [ORAL OR DOCUMENTARY WHICH COULD HAVE SUGGESTED THAT THE ASSESSEE HAS SHOWN LESS INVESTMENT IN ITS BOOKS FOR BUILDING CONSTRUCTION] THEREFORE, NO ADDITION WAS PERMISSIBLE IN THE ASSESSMENT ORDER U/ S 153A OF THE ACT IN THE CASE OF UN-ABATED ASSESSMENTS UNLESS IT IS BASED ON RELEVANT INCRIMIN ATING MATERIAL FOUND DURING THE COURSE OF SEARCH QUA THE ASSESSEE AND QUA THE AY. THUS THE AS SESSEE SUCCEEDS IN ITS CROSS-APPEALS ON THE LEGAL ISSUE RAISED IN RESPECT OF APPEALS PERTAINING TO AY 2008-09 TO AY 2012-13.CONSEQUENTLY APPEAL OF ASSESSEE PERTAINING TO THESE ASSESSMENT Y EARS ARE ALLOWED. 29. SIMILAR LEGAL ISSUE RAISED FOR AY 2013-14 DOES NOT SURVIVE, BECAUSE IT IS AN ABATED ASSESSMENT. SO THE CROSS-APPEAL PREFERRED BY THE AS SESSEE FOR AY 2013-14 IS DISMISSED. 30. IN THE RESULT, REVENUE APPEALS PERTAINING TO AY 2008-09 TO AY 2013-14 ARE DISMISSED. AND ASSESSES APPEAL PERTAINING FOR AY 2013-14 IS DI SMISSED AND APPEALS PERTAINING TO AY 2008-09 TO AY 2012-13 ARE ALLOWED. 15. SINCE THERE IS NO CHANGE IN FACTS AND LAW, THER EFORE, ON THE FACTS AND LAW DISCUSSED THE RATIO OF THE DECISION IN M/S NARULA EDUCATION T RUST SHOULD BE APPLIED MUTATIS MUTANDIS TO THE ASSESSEES CASE IN HAND BECAUSE IT SQUARELY COVERS THE MERITS AND LEGAL ISSUE RAISED BY BOTH THE PARTIES. AND ON THE SAME REASONING SPELLED OUT IN THE M/S NARULA EDUCATION TRUST 21 I.T(SS).A. NOS. 86 TO 92/KOL/2019 & I.T(SS).A. NOS. 01 TO 06/KOL/2020 JIS FOUNDATION, AYS. 2008-09 TO 2014-15 CASE, [REFER PARA 22 OF THE ORDER OF TRIBUNAL IN M/ S NARULA EDUCATION TRUST (SUPRA)]THE REVENUE APPEALS IN THE INSTANT CASE FOR AY 2008-09 TO 2014-15 STANDS DISMISSED; AND AS NARRATED ABOVE THE ASSESSEE SUCCEEDS IN THESE CROSS APPEALS ON THE LEGAL ISSUE RAISED IN RESPECT OF THE APPEALS PERTAINING TO AYS. 2008-09 T O 2012-13 ( UNABATED ASSESSMENTS ON THE DATE OF SEARCH I.E.13.03.2014 WHEREIN NO INCRIMINA TING MATERIALS WERE UNEARTHED DURING SEARCH ) CONSEQUENTLY THE APPEALS OF THE ASSESSEE PERTAINI NG TO THESE ASSESSMENT YEARS ARE ALLOWED ON THE RATIO AS HELD IN M/S NARULA EDUCATIO NAL TRUST ((REFER PARA 28 SUPRA). 16. SIMILARLY LEGAL ISSUE RAISED FOR AYS. 2013-14 O F THE ASSESSEE DOES NOT SURVIVE BECAUSE IT IS AN ABATED ASSESSMENT. SO, THE CROSS APPEALS PREFERRED BY THE ASSESSEE FOR AYS. 2013-14 STANDS DISMISSED. 17. IN THE RESULT, REVENUE APPEALS PERTAINING TO AY 2008-09 TO AY 2014-15 ARE DISMISSED. AND ASSESSEES APPEALS PERTAINING FOR AY S 2008-09 TO 2012-13 ARE ALLOWED AND ASSESSEES APPEAL PERTAINING TO AY 2013-14 IS DISMI SSED. ORDER IS PRONOUNCED IN THE OPEN COURT 9 TH JULY, 2021 SD/- SD/- (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 9 TH JULY, 2021 JD, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- ACIT/DCIT, CENTRAL CIRCLE-1(3), KOLKATA. 2. RESPONDENT M/S. JIS FOUNDATION, DWARKA BUILDING, 7, SARAT BOSE ROAD, KOLKATA- 700 020.. 3. THE CIT(A)- 20, KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER SENIOR PVT. SECY./DDO ITAT, KOLKATA BENCHES, KOLKATA