Smt Yamini Agarwal, Kolkata V. DCIT, CC-3(3), KOLKATA, Kolkata

ITSSA 97/KOL/2015

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3285 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 13-07-2015
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: SAJJAN KUMAR TULSIYAN
• Keywords: Search and seizure; Block assessment; Onus to prove; Documents seized
• Section: 143(3); 153A; 131; 148; 263; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & DR.ARJUN LAL SAINI, AM] I.T.(SS)A NOS.97 & 98 /KOL/2015 ASSESSMENT YEARS : 2006- 07 & 2007-08 SMT. YAMINI AGARWAL -VS.- D.C.I.T., CENTR AL CIRCLE-3(3) KOLKATA KOLKATA [PAN : AFRPA 7898 E] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SAJJAN KUMAR TULSIYAN, ADVOCATE FOR THE RESPONDENT : SHRI NIRAJ KUMAR, CIT(DR ) DATE OF HEARING : 10.04.2017. DATE OF PRONOUNCEMENT : 19.04.2017. ORDER PER N.V.VASUDEVAN, JM THESE ARE APPEALS BY THE ASSESSEE AGAINST TWO ORDER S BOTH DATED 12.05.2015 OF C.I.T.(A)-21, KOLKATA RELATING TO A.Y.2006-07 & 200 7-08. 2. FIRST WE SHALL TAKE UP FOR CONSIDERATION THE PRE LIMINARY ISSUE RAISED BY THE ASSESSEE WITH REGARD TO THE JURISDICTION OF THE AO TO MAKE T HE IMPUGNED ADDITION IN ASSESSMENT COMPLETED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (ACT), IN THE LIGHT OF THE ADMITTED FACT THAT NO INCRIMINATING DOCUMENTS WHATS OEVER WAS FOUND/SEIZED DURING THE SEARCH OPERATION U/S 132 OF THE ACT. 3. THE GRIEVANCE OF THE ASSESSEE IN THIS REGARD AR E PROJECTED IN GROUND NO.1 RAISED BY THE ASSESSEE IN BOTH THE APPEALS. THE GROUNDS RAISE D IN THIS REGARD ARE IDENTICAL. FOR THE SAKE OF CONVENIENCE GROUND NO1 IN IT(SS)A.NO.97/KOL /2015 FOR A.Y.2006-07 IS GIVEN BELOW :- 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOL DING THE ASSESSMENT U/S 153A/143(3) OF THE ACT IN SPITE OF THE FACT THAT NO INCRIMINATING DOCUMENTS 2 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 2 WHATSOEVER WAS FOUND/SEIZED DURING SEARCH OPERATION U/S 132 OF THE ACT PERTAINING TO THE ASSESSMENT YEAR UNDER APPEAL? 4. THE FACTS AND CIRCUMSTANCES UNDER WHICH THE AFORESAID GROUNDS OF APPEAL HAS TO BE ADJUDICATED ARE AS FOLLOWS :- THE ASSESSEE IS AN INDIVIDUAL. THE ORDER OF ASSESSMENT IS SILENT WITH REGARD TO THE ASSESSEES SOURCE OF INCOME AND HER PARTICULARS OF PAST ASSESSMENTS. FOR A.Y.2006-07 THE ASSESSEE FILED HER RETURN OF INCOME U/S 139 OF THE ACT ON 12.12.2006 DECLARING TOTAL INCOME OF RS.1,18,266/-. THE ORDER OF ASSESSMENT IS SILENT ON WHETHER ANY PROCESSING OF THE RETURN WAS DONE IN TERMS OF SECTION 143(1) OF T HE ACT. ADMITTEDLY NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED FOR MAKING THE ASSESSM ENT U/S 143(3) OF THE ACT WITHIN THE PERIOD LAID DOWN IN THE PROVISO TO SECTION 143 (2) OF THE ACT NAMELY 30.09.2007. AS FAR AS A.Y.2007-08 IS CONCERNED THE ASSESSEE FILED HER RETURN OF INCOME ON 27.02.2008 DECLARING TOTAL INCOME OF RS.1,27,820/- U/S 139 OF THE ACT. THE ORDER OF ASSESSMENT IS SILENT ON WHETHER ANY PROCESSING OF THE RETURN WAS DONE IN TERMS OF SECTION 143(1) OF THE ACT. ADMITTEDLY NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED FOR MAKING THE ASSESSMENT U/S 143(3) OF THE ACT WITHIN THE PERIOD LAID DOWN IN THE PROVISO TO SECTION 143 (2) OF THE ACT NAMELY 30.09.2008. 5. THERE WAS A SEARCH AND SEIZURE OPERATION CARRIE D OUT U/S 132 OF THE ACT AT THE RESIDENTIAL PREMISES AND BANK LOCKER OF THE ASSESSE E ON 28.07.2011 AND ON 23.09.2011. IT IS NOT DISPUTED BY THE PARTIES BEFORE US THAT IN THE COURSE OF SUCH SEARCH NO INCRIMINATING OR UNDISCLOSED DOCUMENTS/MATERIALS WH ATSOEVER WERE UNEARTHED. 6. DURING THE COURSE OF THE ASSESSMENT PROCEEDI NGS THE ASSESSEE WAS ASKED VIDE QUESTIONNAIRE TO FURNISH THE DETAILS OF A BANK ACCO UNT VIDE CODE PROFILE CLIENT NO. 5091438123 WITH HSBC, GENEVA, SWITZERLAND AND DEPOS IT OF AN AMOUNT OF $2,77,688/- THEREIN. ACCORDING TO THE AO THE SAID BANK ACCOUNT AND THE DEPOSIT THEREIN WERE IN THE 3 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 3 NAME OF AND BY THE ASSESSEE. THE ASSESSEE DENIED T HAT SHE HAD ANY SUCH BANK ACCOUNT AND ALSO DENIED HAVING DEPOSIT ANY AMOUNT THEREIN. THE ASSESSEE REQUESTED THE AO TO PROVIDE HER WITH A COPY OF THE RECORDS BASED ON WHI CH THE AO CLAIMED THAT THE SAID BANK ACCOUNT AND DEPOSIT THEREIN BELONGED TO AND WA S MADE BY THE ASSESSEE. THE AO ISSUED SUMMON U/S 131 OF THE ACT TO THE ASSESSEE. THE ASSESSEE WAS EXAMINED BY THE AO. THE AO ALSO PROVIDED TO THE ASSESSEE COPIES OF THE DOCUMENTS OF THE ALLEGED BANK ACCOUNT WHICH ACCORDING TO THE ASSESSEE CONSISTED O F TWO SHEETS OF NON CERTIFIED/UNATTESTED PAPER. ACCORDING TO THE ASSE SSEE THOUGH THE COVERING LETTER ENCLOSING THE BANK STATEMENT WAS SIGNED BY THE AO, THE TWO SHEETS OF ENCLOSURES BEING THE DETAIL OF THE ALLEGED BANK ACCOUNT WAS NEITHER SIGNED NOR CERTIFIED BY THE INCOME TAX DEPARTMENT OR THE AO. THE ASSESSEE INSISTED FOR AUTHENTICATION OF THE DOCUMENTS FOR HER TO PROCEED WITH THE MATTER. FURTHER THE ASS ESSEE ALSO INFORMED THE AO THAT SINCE THE CONTENTS OF THE DOCUMENTS WERE IN A FOREIGN LAN GUAGE NOT KNOWN TO THE ASSESSEE OR HER FAMILY MEMBERS OR IMMEDIATE RELATIVES, A TRANSL ATED COPY OF THE SAME IN HINDI OR ENGLISH BE PROVIDED TO HER. ACCORDING TO THE ASSES SEE, SHE THOUGHT IT FIT NOT TO GET THE DOCUMENT TRANSLATED BY AN OUTSIDE SINCE THE LETTER COVERING THE ENCLOSURES WAS MARKED AS 'CONFIDENTIAL'. THE ASSESSEE DENIED HAVING OPE NED THE ALLEGED BANK ACCOUNT ON 24TH MAY, 2005 AS INFORMED BY THE AO AND ALSO CALLED UPO N THE AO TO DISCLOSE THE SOURCE OF HIS ACQUIRING THE DOCUMENTS. 7. THE AO HOWEVER WAS OF THE VIEW THAT A SUM OF RS . 1,22,48,403/- (EQUIVALENT TO $2,71,764 @ RS.45.07 PER USD IN DECEMBER 2005) RELA TING TO F.Y. 2005-06 CORRESPONDING TO THE A.Y. 2006-07 AND TWO OTHER SUM S OF RS.1,36,34,587/- (EQUIVALENT TO $2,93,659 @ RS.46.43 PER USD IN MAY 2006) & RS.L ,24,20,580/- (EQUIVALENT TO $2,80,818 @ RS.44.23 PER USD IN DECEMBER 2006) TOTA LING TO RS.2,60,55,167/- RELATING TO F.Y. 2006-07 CORRESPONDING TO A.Y. 2007-08 SHOUL D BE TREATED AS UNDISCLOSED INCOME DEPOSITED INTO THE ALLEGED UNDISCLOSED BANK ACCOUNT. THE ASSESSEE WAS OF THE VIEW THAT SINCE HER REQUESTED FOR AUTHENTICATED AND TRANSLATED DOCUMENT AND SOURCE OF 4 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 4 THE DOCUMENT WAS NOT DISCLOSED, THE PROPOSAL OF THE AO TO MAKE THE ADDITION OF INCOME AS STATED ABOVE, WAS NOT LEGAL. 8. THE AO HOWEVER PASSED THE ASSESSMENT ORDER IN H ER CASE FOR THE AY. 2006-07 AND 2007-08 U/S 153A/143(3) OF THE ACT, MAKING AN ADDIT ION OF RS.1,22,48,403/- AND RS.2,60,55,167/- RESPECTIVELY TO THE APPELLANT'S RE TURNED INCOME BEING THE ALLEGED BALANCE FOR F.Y. 2005-06 AND F.Y.2006-07 RELEVANT TO AY 2006-07 & 2007-08 IN THE BANK ACCOUNT WITH HSBC, GENEVA, SWITZERLAND. 9. AGGRIEVED BY THE AFORESAID ACTION OF THE AO, TH E ASSESSEE FILED AN APPEAL. THE CIT(A) WHILE ACKNOWLEDGING THE FACT THAT INFORMATIO N REGARDING THE ALLEGED BANK STATEMENT WAS RECEIVED BY THE AO POST SEARCH FROM T HE GOVERNMENT OF INDIA AND NOT FROM THE ASSESSEE'S PREMISE OR POSSESSION, NEVERTHE LESS UPHELD AO'S ORDER BY CONCLUDING THAT THE ASSESSEE'S NAME AND ADDRESS APP EARED IN THE ALLEGED BANK ACCOUNT DETAILS AND THAT THE ONUS TO PROVE THAT THE CONTENT S OF THE SAID ALLEGED INFORMATION/BANK ACCOUNT DETAILS WERE WRONG, RESTED ENTIRELY ON THE ASSESSEE ON ACCOUNT OF HER NAME AND ADDRESS REFLECTING IN THE SAID DETAILS. 10. AGGRIEVED BY THE ORDERS OF THE CIT(A), THE ASS ESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. WE HAVE HEARD THE SUBM ISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND THE LEARNED DR ON THE PRELIMINARY ISSUE OF JURISDICTION RAISED BY THE ASSESSEE IN GR.NO.1 SET OUT IN THE EARLIER PART OF THIS ORDER. 11. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT T HAT WITH REFERENCE TO THE RETURN OF INCOME FILED BY THE ASSESSEE FOR A.Y.2006-07 AND 20 07-08 U/S 139 OF THE ACT ON 12.12.2006 AND 27.02.2008 RESPECTIVELY THE AO DID N OT ISSUE ANY NOTICE U/S 143(2) OF THE ACT WITHIN THE TIME REQUIRED UNDER THE PROVISO U/S 143(2) OF THE ACT NAMELY 30.09.2007 FOR AY.2006-07 AND 30.09.2008 FOR A.Y.20 07-08. IT WAS THE SUBMISSION 5 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 5 THAT ON THE EXPIRY OF THE AFORESAID PERIOD FOR ISSU E OF NOTICE U/S 143(2) OF THE ACT, THE ASSESSMENT FOR A.Y.2006-07 AND 2007-08 ARE DEEMED T O HAVE BEEN CONCLUDED. IT WAS FURTHER BROUGHT TO OUR NOTICE THAT THE SEARCH WAS C ONDUCTED IN THE CASE OF THE ASSESSEE ON 28.07.2011 AND 23.09.2011 AND IN THE COURSE OF S UCH SEARCH NO INCRIMINATING DOCUMENTS WHATSOEVER WAS FOUND WITH REGARD TO HSBC ACCOUNT IN SWITZERLAND. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE SCOPE OF THE ASSESSMENT PROCEEDINGS U/S 153A OF THE ACT IN RESPECT OF AN AS SESSMENT WHICH HAS ALREADY BEEN COMPLETED IS RESTRICTED ONLY TO MAKING AN ASSESSMEN T OF INCOME WHICH ARE BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. IN OTHER WORDS, IT WAS SUBMITTED THAT THE AO HAS NO JURISDICTION TO MAKE A N ASSESSMENT OF INCOME WHICH IS NOT BASED ON MATERIAL FOUND IN THE COURSE OF SEARCH, WH ERE ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR HAS ALREADY BEEN CONCLUDED PRIOR TO THE DATE OF SEARCH AND THEREFORE SUCH ASSESSMENTS DOES NOT ABATE UNDER THE PROVISO T O SECTION 153A (1) OF THE ACT. IN THIS REGARD OUR ATTENTION WAS DRAWN BY THE LD. COUN SEL FOR THE ASSESSEE TO A VERY RECENT DECISION OF THE ITAT KOLKATA BENCH IN THE CASE OF S HRI BISHWANATH GARODIA VS DCIT IN ITA NOS. 853 TO 856/KOL/2016 ORDER DATED 21.09.2016 . THE RELEVANT OBSERVATIONS IN THIS REGARD ARE AS FOLLOWS :- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT T HE RETURNS OF INCOME ORIGINALLY FILED BY THE ASSESSEE FOR BOTH THE YEARS UNDER CONS IDERATION WERE DULY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) WELL BEF ORE THE DATE OF SEARCH CONDUCTED ON 28.07.2011. THE SAID SEARCH WAS CONDUC TED IN THE CASE OF THE ASSESSEE ON THE BASIS OF INFORMATION RECEIVED BY TH E ASSESSING OFFICER FROM CBDT RELATING TO THE UNDISCLOSED ACCOUNT MAINTAINED BY T HE ASSESSEE WITH HSBC BANK, GENEVA, SWITZERLAND. DURING THE COURSE OF SEARCH, N O INCRIMINATING MATERIAL, HOWEVER, WAS FOUND RELATING TO THE TRANSACTIONS REF LECTED IN THE SAID BANK ACCOUNT OF THE ASSESSEE WITH HSBC BANK OR ANY INCOME RELATI NG THERETO AND THIS POSITION WAS CATEGORICALLY ADMITTED BY THE ASSESSING OFFICER DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE ID. CIT(APPEALS) AS IS EVIDE NT FROM THE RELEVANT ORDER-SHEET ENTRY DATED 21.12.2015 RECORDED BY THE ID. CIT(APPE ALS) (COPY AT PAGE NO. 22 OF THE PAPER BOOK). THE QUESTION THAT ARISES NOW IS WH ETHER IN THE ABSENCE OF SUCH INCRIMINATING MATERIAL, ANY ADDITION TO THE TOTAL I NCOME OF THE ASSESSEE CAN BE MADE ON ACCOUNT OF THE TRANSACTIONS REFLECTED IN TH E BANK ACCOUNT OF THE ASSESSEE 6 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 6 WITH HSBC BANK OR ANY INCOME RELATING THERETO IN AS SESSMENTS COMPLETED UNDER SECTION 153A OF THE ACT FOR BOTH THE YEARS UNDER CO NSIDERATION. 9. AS PER THE PROVISIONS CONTAINED IN SECTION 153A, IF THE SEARCH OR REQUISITION IS INITIATED AFTER 31.03.2003, THE ASSESSING OFFICER I S UNDER AN OBLIGATION TO INITIATE PROCEEDINGS UNDER SECTION 153A FOR SIX YEARS IMMEDI ATELY PRECEDING THE YEAR OF SEARCH. THE ASSESSING OFFICER IS THEN REQUIRED TO A SSESS OR REASSESS THE TOTAL INCOME OF THE SAID SIX YEARS AND IF ANY ASSESSMENT OR REASSESSMENT OUT OF THE SAID SIX YEARS IS PENDING ON THE DATE OF INITIATION OF T HE SEARCH, THE SAME WOULD ABATE, I.E. PENDING PROCEEDING QUA THE SAID ASSESSMENT YEA R WOULD NOT PROCEED THEREAFTER AND THE ASSESSMENT HAS TO BE MADE UNDER SECTION 153 A(1)(B) OF THE ACT READ WITH THE 1ST PROVISO THEREUNDER. AS REGARDS THE OTHER YE ARS FOR WHICH ASSESSMENTS HAVE ALREADY BEEN COMPLETED AND THE ASSESSMENT ORDERS DE TERMINING THE ASSESSEE'S TOTAL INCOME ARE SUBSISTING AT THE TIME WHEN THE SEARCH O R REQUISITION IS MADE, THE SCOPE OF ASSESSMENT UNDER SECTION 153A IS LIMITED TO REAS SESS THE INCOME OF THE ASSESSEE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURIN G THE COURSE OF SEARCH. 10. AT THE TIME OF HEARING BEFORE US, THE ID. D.R. HAS CONTENDED THAT THE PROCESSING OF RETURNS OF INCOME FILED BY THE ASSESSEE AS MADE BY THE ASSESSING OFFICER UNDER SECTION 143(1) COULD NOT BE REGARDED AS ASSESSMENT AND IT IS, THEREFORE, NOT A CASE WHERE THE ASSESSMENTS FOR BOTH THE YEARS UNDER CONS IDERATION COULD BE SAID TO HAVE BEEN COMPLETED. HE HAS ALSO CONTENDED THAT THE CONC LUSION OF SUCH ALONE IS SUFFICIENT TO GIVE JURISDICTION TO THE ASSESSING OF FICER TO PROCEED AGAINST THE ASSESSEE UNDER SECTION 153A OF THE ACT. IN SUPPORT OF THIS CONTENTION, HE HAS RELIED ON THE UNREPORTED DECISION OF THE HON'BLE DELHI HIG H COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA). IN THE SAID CASE, A QUESTION WAS POSED BY THE HON'BLE DELHI HIGH COURT IN PARAGRAPH NO. 12 OF ITS ORDER AS TO W HETHER THE ASSESSING OFFICER WAS EMPOWERED TO REOPEN THE PROCEEDINGS AND REASSES S THE TOTAL INCOME TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED D URING THE SEARCH WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS EITHER UNDER SECTION 143(1) OR SEC TION 143(3) OF THE ACT AND SUCH ORDER WAS ALREADY IN EXISTENCE HAVING BEEN PASSED P RIOR TO THE INITIATION OF SEARCH/ REQUISITION. ALTHOUGH THIS QUESTION WAS NOT FINALLY ANSWERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA) , IT IS QUITE CLEAR FROM THE SAID QUESTION RAISED BY THE HONBLE DELHI HIGH COURT THAT THERE WAS NO DISTINCTION MADE BY THEIR LORDSHIPS IN THE ASSESSMENTS COMPLETED UND ER SECTION 143(1) AND SECTION 143(3) FOR DETERMINING THE SCOPE OF THE PROCEEDINGS UNDER SECTION 153A. HOWEVER, THE SAID QUESTION AROSE SPECIFICALLY FOR THE CONSID ERATION OF MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT -VS.- PRATIBHA INDUSTR IES REPORTED IN 141 ITD 151 AND AFTER REFERRING TO THE DISCUSSION MADE BY THE HONBL E DELHI HIGH COURT IN THIS CONTEXT IN THE CASE OF ANIL KUMAR BHATIA (SUPRA), T HE TRIBUNAL HELD THAT THE ONLY LOGICAL CONCLUSION WHICH COULD BE TRACED OUT BY HAR MONIZING THE LEGISLATIVE 7 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 7 INTENDMENT AND THE JUDICIAL DECISION WAS THAT WHER E THE ASSESSMENTS HAD ALREADY BECOME FINAL PRIOR TO THE DATE OF SEARCH, THE TOTAL INCOME HAS TO BE DETERMINED UNDER SECTION 153A BY CLUBBING TOGETHER THE INCOME ALREADY DETERMINED IN THE ORIGINAL ASSESSMENTS AND THE INCOME THAT IS FOUND T O HAVE ESCAPED ASSESSMENT ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH. TO ARRIVE AT THIS CONCLUSION, RELIANCE WAS PLACED BY THE TRIBUNA L ON THE DECISION OF SPECIAL BENCH, MUMBAI IN THE CASE OF ALL CARGO GLOBAL LOGIS TIC LIMITED (SUPRA), WHEREIN IT WAS HELD THAT EVEN THOUGH ALL THE SIX YEARS SHAL L BECOME SUBJECT MATTER OF ASSESSMENT UNDER SECTION 153A AS A RESULT OF SEARCH , THE ASSESSING OFFICER SHALL GET THE FREE HAND THROUGH ABATEMENT ONLY ON THE PROCEED INGS THAT ARE PENDING. BUT IN A CASE OR IN A CIRCUMSTANCES WHERE THE PROCEEDINGS HA VE REACHED FINALITY, ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 1 53(3) HAS TO BE MADE AS WAS ORIGINALLY MADE AND IN A CASE CERTAIN INCRIMINATING DOCUMENTS WERE FOUND INDICATING UNDISCLOSED INCOME, THEN ADDITION SHALL ONLY BE RESTRICTED TO THOSE DOCUMENTS/INCRIMINATING MATERIAL. 11. KEEPING IN VIEW THE DISCUSSION MADE ABOVE, WE H OLD THAT THE ADDITIONS AS FINALLY MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF TRANSACTIONS REFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE WITH HSBC, GENE VA, SWITZERLAND AND INCOME RELATING THERETO FOR BOTH THE YEARS UNDER CONSIDERA TION ARE BEYOND THE SCOPE OF SECTION 153A AS THE ASSESSMENTS FOR THE SAID YEARS HAD BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATER IAL FOUND DURING THE COURSE OF SEARCH TO' SUPPORT AND SUBSTANTIATE THE SAID ADDITI ON. THE SAID ADDITIONS MADE FOR BOTH THE YEARS UNDER CONSIDERATION ARE, THEREFORE, DELETED ALLOWING THE RELEVANT GROUNDS OF THE ASSESSEE'S APPEALS. 12. IT WAS POINTED OUT THAT IN THE AFORESAID DECIS ION WHICH ARE IDENTICAL TO THE FACTS OF THE ASSESSEES CASE THIS TRIBUNAL TOOK THE VIEW THA T THE ADDITIONS MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF TRANSACTIONS R EFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE WITH HSBC, GENEVA, SWITZERLAND FOR BOTH TH E ASSESSMENT YEARS WERE BEYOND THE SCOPE OF SECTION 153A OF THE ACT, AS THE ASSESS MENTS FOR THE SAID YEAR HAD BECOME FINAL PRIOR TO THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH TO SUPPORT THE SAID ADDITION. OUR ATTENTION WAS ALSO DRAWN TO SEVERAL OTHER DECISIONS RENDERED IN THE CONTEXT OF JURISDICTION U/S 153A OF THE ACT, TO WHICH WE WILL MAKE A REFERENCE LATER. 8 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 8 13. THE LEARNED DR HAS HOWEVER ARGUED WHERE AN ORIG INAL ASSESSMENT HAS NOT BEEN FINALIZED UNDER SECTION 143(3) OF THE ACT, THERE IS NO QUESTION OF ABATEMENT AND THAT IN THE PRESENT CASE ORIGINAL ASSESSMENT HAS BEEN MADE UNDER SECTION 143(1) OF THE ACT. AS PER THE LD. DEPARTMENTAL REPRESENTATIVE THE PROVISI ONS OF SECTION 153A EMPOWER THE ASSESSING OFFICER TO ASSESS OR REASSESS THE TOTAL I NCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH A SEARCH WAS CONDUCTED AND, THEREFORE, UNDER THESE CI RCUMSTANCES THE ASSESSING OFFICER WAS DUTY BOUND TO ASSESS OR REASSESS TOTAL INCOME OF SUCH ASSESSMENT YEARS, AND, THEREFORE, THE IMPUGNED ADDITIONS WERE JUSTIFIABLY MADE IN THE ASSESSMENT MADE UNDER SECTION 143(3) R.W.S. 153A(1) OF THE ACT. 14. THE LEARNED COUNSEL FOR THE ASSESSEE ON THIS A SPECT SUBMITTED THAT THE SECOND PROVISO TO SEC 153A(1) OF THE ACT CONTEMPLATES THAT IF ANY OF THE SIX ASSESSMENTS ARE PENDING ON THE DATE OF INITIATION OF THE SEARCH AND REQUISITION, THE SAME SHALL ABATE. HOWEVER, THERE IS NO PROVISION THAT EVEN THE COMPLE TED ASSESSMENT OF THE AFORESAID SIX YEARS SHALL ABATE. THEREFORE A DISTINCTION HAS BEEN MADE BETWEEN A PENDING ASSESSMENT AND A COMPLETED ASSESSMENT. THUS IT WAS SUBMITTED T HAT A COMPLETED ASSESSMENT BECOMES FINAL UNLESS SOME INCRIMINATING MATERIAL IS FOUND IN THE COURSE OF SEARCH. IT WAS ARGUED THAT SECTION 153A OF THE ACT DOES NOT AU THORIZE THE MAKING OF A DE NOVO ASSESSMENT. AN ASSESSMENT U/S 153A OF THE ACT IS NO T MEANT TO UNSETTLE THE INCOME SHOWN IN THE REGULAR RETURN IN RESPECT OF WHICH THE ASSESSMENT IS COMPLETE. SECTION 153A OF THE ACT DOES NOT LEAD TO A WHOLE EXERCISE O F ASSESSMENT TO BE MADE AFRESH IN RESPECT OF COMPLETED ASSESSMENTS. THEREFORE VIDE AS SESSMENT U/S 153A OF THE ACT, NO NEW DISALLOWANCE CAN BE MADE BY THE A.O. WHERE ADMI TTEDLY THE REGULAR ASSESSMENTS ARE SHOWN AS COMPLETED ASSESSMENTS ON THE DATE OF I NITIATION OF ACTION U/S 132. FURTHER AND VERY IMPORTANTLY, IN RELATION TO THE YEARS WHOS E ASSESSMENT IS COMPLETED, IT HAS BEEN LAID DOWN IN SEVERAL JUDICIAL PRONOUNCEMENTS THAT I N SUCH SITUATION OF COMPLETED ASSESSMENTS, ASSESSMENT U/S 153A OF THE ACT HOWEVER SHALL BE TO THE EXTENT OF INCOME 9 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 9 ESCAPING ASSESSMENT WHICH COMES TO THE KNOWLEDGE OF THE AO DURING THE COURSE OF SEARCH WITH REFERENCE TO THE VALUABLE ARTICLES OR T HINGS FOUND OR DOCUMENTS SEIZED DURING THE SEARCH WHICH ARE NOT DISCLOSED IN THE OR IGINAL ASSESSMENT. THE POWER GIVEN BY THE 1ST PROVISO TO 'ASSESS' INCOME FOR SIX ASSES SMENT YEARS HAS TO BE CONFINED TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND CANN OT INCLUDE ITEMS WHICH ARE DISCLOSED IN THE ORIGINAL ASSESSMENT PROCEEDINGS. W HEN NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELATING TO ANY ASSESSMENT YEARS, THE ASSESSMENTS FOR SUCH YEARS CANNOT BE DISTURBED. ITEMS OF REGULAR ASSESSMENT CA NNOT BE ADDED BACK IN THE PROCEEDINGS U/S 153A OF THE ACT WHEN NO INCRIMINATI NG DOCUMENTS WERE FOUND IN RESPECT OF THE DISALLOWED AMOUNTS IN THE SEARCH PRO CEEDINGS. A SEARCH ASSESSMENT UNDER SECTION 153A OF THE ACT SHOULD BE EVIDENCE BASED. AN ASSESSMENT U/S 153A OF THE ACT IS NOT MEANT TO UNSETTLE THE INCOME SHOWN IN THE RE GULAR RETURN IN THE ABSENCE OF EVIDENCE FOUND AS A RESULT OF SEARCH. IT IS NOT MEA NT TO MAKE A ROVING AND FISHING ENQUIRY. SECTION 153A OF THE ACT IS A SEPARATE AND SPECIAL PROVISION THAT HAS BEEN SPECIALLY ENACTED TO UNDERTAKE SEARCH RELATED ASSES SMENTS. A SEARCH U/S 132 OF THE ACT IS AUTHORIZED TO UNEARTH UNDISCLOSED ASSETS OR TRANSAC TIONS RESULTING IN INCOME WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT OF A PERSON. T HEREFORE, A SEARCH PUTS IN MOTION THE PROCESS OF ASSESSMENT OF THE UNDISCLOSED INCOME OF A TAX PAYER WHICH IS NOT DISCLOSED TO THE DEPARTMENT. THUS SECTION 153A OF THE ACT IS LIM ITED TO THE ASSESSMENTS OF INCOME WHICH ARE DISCOVERY OF SEARCH. 15. IN SUPPORT OF HIS CONTENTION AS ABOVE, THE LEA RNED COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 573 (DEL) AND THE HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION 374 ITR 645 (BO M) AND THE SPECIAL BENCH OF ITAT IN THE CASE OF ALLCARGO GLOBAL LOGISTICS 137 I TD 287 (SB)(MUM). 16. THE LEARNED DR SUBMITTED THAT THE HONBLE DELH I HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA [2013] 352 ITR 493 (DELHI) AFTER EXAMINING THE SCHEME OF 10 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 10 SEC.153A OF THE ACT HAS HELD THAT UNDER THE PROVISI ONS OF SECTION 153A OF THE ACT, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT Y EARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE SEARCH OR REQUISITION WAS MADE. HE IS ALSO EMPOWERED TO ASSESS OR REASSESS TH E 'TOTAL INCOME' OF THE AFORESAID YEARS. UNDER SECTION 153A, HOWEVER, THE ASSESSING O FFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX AS SESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONL Y 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. ACCORDING TO HIM T HEREFORE IN ASSESSMENT COMPLETED U/S.153A OF THE ACT, THE AO CAN BRING TO TAX INCOME WHICH ESCAPES ASSESSMENT WHICH NEED NOT BE RESTRICTED TO EVIDENCE FOUND AS A RESUL T OF SEARCH. HE ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT (2014) 114 DTR 162 ( KARN) WHEREIN THE HONBLE KARNATAKA HIGH COURT HELD THAT EVEN IF AN ASSESSMEN T ORDER IS PASSED UNDER SECTION 143(1) OR 143(3) OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NO TE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. AFTER SUCH REOPENING O F THE ASSESSMENT, THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTA L INCOME OF THE AFORESAID YEARS. HE DREW OUR ATTENTION TO THE FOLLOWING OBSERVATIONS OF THE HONBLE KARNATAKA HIGH COURT: ..THE CONDITION PRECEDENT FOR APPLICATION OF SECT ION 153A IS THERE SHOULD BE A SEARCH UNDER SECTION 132. INITIATION OF PROCEEDINGS UNDER SECTION 153A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTHED DURING SUCH SEARCH. THE PROVISO TO THE AFORESAID SECTION MAKES IT CLEAR THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESS MENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. IF ANY ASSESSMENT PROCEEDINGS ARE PENDING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THE A FORESAID SUB-SECTION ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132, THE SAID PROCEEDING SHALL ABATE. IF SUCH PROCEEDINGS ARE ALREADY CONCLUDED BY THE ASSES SING OFFICER BY INITIATION OF PROCEEDINGS UNDER SECTION 153A, THE LEGAL EFFECT IS THE ASSESSMENT GETS REOPENED. THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR 11 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 11 ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BE EN GIVEN THE POWER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE SIX ASSESSMEN T YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THE ASSESSING OFFICER IS EMPOWER ED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING N OTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. HE HAS BEEN EN TRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHO SE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETT ERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INC OME WOULD BE BROUGHT TO TAX. WHEN ONCE THE PROCEEDINGS ARE INITIATED UNDER SECTI ON 153A OF THE ACT, THE LEGAL EFFECT IS EVEN IN CASE WHERE THE ASSESSMENT O RDER IS PASSED IT STANDS REOPENED. IN THE EYE OF LAW THERE IS NO ORDER OF AS SESSMENT. RE-OPENED MEANS TO DEAL WITH OR BEGIN WITH AGAIN. IT MEANS TH E ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS. ONCE THE ASSESSMENT IS REOPENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RETURN, ANY UNDISCLOSED IN COME FOUND DURING SEARCH OR AND ALSO ANY OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNEARTHENED DURING THE SEARCH, IN ORDE R TO FIND OUT WHAT IS THE TOTAL INCOME OF EACH YEAR AND THEN PASS THE ASSES SMENT ORDER . (EMPHASIS SUPPLIED) 17. THEREFORE ACCORDING TO THE LEARNED DR THE AO I N AN ASSESSMENT U/S.153A OF THE ACT CAN BRING TO TAX ANY INCOME AND THERE ARE NO FETTER S ON HIS POWERS VIS--VIS A COMPLETED UNABATED ASSESSMENT U/S.143(3) OF THE ACT, THAT DET ERMINATION OF TOTAL INCOME HAS TO BE BASED ONLY ON MATERIAL FOUND IN THE COURSE OF SEARC H. 18. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. THE PROVISIONS OF SECTION 153A OF THE ACT WERE INTRODUC ED BY THE FINANCE ACT, 2003 WITH EFFECT FROM 1-6-2003. SEC.153A OF THE ACT LAYS DOWN THAT IN RESPECT OF SEARCHES CARRIED OUT UNDER SECTION 132 OF THE ACT OR REQUISITION OF BOOKS AND OTHER DOCUMENTS MADE UNDER SECTION 132A OF THE ACT AFTER 31-5-2003, THE ASSESSING OFFICER SHALL ISSUE A NOTICE CALLING UPON ASSESSEE TO FURNISH RETURN OF I NCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING ASSESSMENT YEAR RELEVAN T TO THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE. THE ASS ESSING OFFICER IS EMPOWERED TO RE- 12 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 12 ASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSME NT YEAR FALLING WITH SUCH SIX ASSESSMENT YEARS.SEC.153A OF THE ACT READS THUS: 153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION . (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 39, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN T HE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF IN COME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SU CH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS SUB-SECTION PENDING ON THE DATE OF INITIATI ON OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. (2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASS ESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APP EAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINE D IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATIN G TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SE CTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER : 13 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 13 PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFE CT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE. EXPLANATION : FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT,- (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SEC TION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPE CT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. 19. IT CAN BE SEEN FROM THE SECOND PROVISO TO SEC. 153A(1) OF THE ACT THAT ANY ASSESSMENT PROCEEDINGS FOR ANY OF THE SIX ASSESSMEN T YEARS SET OUT IN SEC.153A (1) OF THE ACT, WHICH IS PENDING AS ON THE DATE OF INITIAT ION OF SEARCH U/S.132 OF THE ACT, THEN SUCH ASSESSMENT PROCEEDINGS WOULD ABATE AND THE AO WILL MAKE ONE ASSESSMENT AFTER CONSIDERING THE ORIGINAL RETURN OF INCOME AS WELL A S MATERIALS FOUND IN THE COURSE OF SEARCH. THE ASSESSMENT PROCEEDINGS WHICH HAVE BEEN COMPLETED AS ON THE DATE OF SEARCH U/S.132 OF THE ACT WILL HOWEVER CONTINUE TO REMAIN VALID. THUS THE FORMER PROCEEDINGS ARE REFERRED TO AS ABATED ASSESSMENT P ROCEEDINGS AND THE LATTER PROCEEDINGS ARE REFERRED TO AS UNABATED ASSESSMENT PROCEEDINGS. 20. THE SPECIAL BENCH ITAT MUMBAI, IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 287 (MUMBAI)(SB) HAD TO DEAL WITH THE SCOPE OF PROCEEDINGS U/S.153A OF THE ACT. THE FOLLOWING QUESTION WAS DET ERMINED BY THE SPECIAL BENCH:- 1. WHETHER, ON THE FACTS AND IN LAW, THE SCOPE OF ASSESSMENT U/S 153A ENCOMPASSES ADDITIONS, NOT BASED ON ANY INCRIMINATI NG MATERIAL FOUND, DURING THE COURSE OF SEARCH'? THE SPECIAL BENCH HELD AS FOLLOWS: 53. THE QUESTION NOW IS - WHAT IS THE SCOPE OF ASS ESSMENT OR REASSESSMENT OF TOTAL INCOME U/S 153A(1)(B) AND THE FIRST PROVIS O? WE ARE OF THE VIEW THAT FOR ANSWERING THIS QUESTION, GUIDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1). IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE 14 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 14 ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF O RIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO ACCOUNT WHILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL INCOME UNDER THE AFORESAID PR OVISION. SIMILAR POSITION WILL OBTAIN IN A CASE WHERE UNDISCLOSED INCOME OR U NDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF SEARCH. IN OTHER WOR DS, HARMONIOUS INTERPRETATION WILL PRODUCE THE FOLLOWING RESULTS : - A) IN SO FAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE ORIGINAL ASSESSMENT AND ASSESSMENT U/S 153A ME RGE INTO ONE AND ONLY ONE ASSESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MA DE SEPARATELY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER M ATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO, (B) IN RESPECT OF NON-ABATED ASSESSMENTS, THE ASSE SSMENT WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS NO T PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF S EARCH, AND UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVERED IN THE CO URSE OF SEARCH 21. IT IS THUS CLEAR FROM THE AFORESAID RULING OF THE SPECIAL BENCH THAT WHERE ASSESSMENTS HAVE ALREADY BEEN COMPLETED U/S.143(3) OF THE ACT BEFORE INITIATION OF SEARCH U/S.132 OF THE ACT, THOSE ASSESSMENTS WILL A TTAIN FINALITY. THE EXCEPTION WOULD BE THAT IF BOOKS OF ACCOUNTS OR OTHER DOCUMENTS WER E NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF SEAR CH OR WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY IS DISCOVERED IN THE COURSE OF SEARCH, THEN THE UNABATED ASSESSMENT WILL NOT ATTAIN FINALITY TO THE EXTENT OF MATERIAL FOUND IN THE COURSE OF SEARCH WHICH WILL HAVE A BEARING ON THE CONCLUSIONS ARRIVED AT IN THE UNABATED ASSESSMENT. 22. THE HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. KABUL CHAWLA (SUPRA) HAS EXPLAINED THE SCOPE OF UNABATED AND ABATED ASSESSME NT PROCEEDINGS AND HAS DRAWN THE FOLLOWING CONCLUSIONS: 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 T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: 15 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 15 I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDI NG THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPU TED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAK ES PLACE. THE 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 YEAR S. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUG HT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITI ONS 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 AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATE RIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONL Y ON THE BASIS OF SEIZED MATERIAL.' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PR OCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMP LETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, T HE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EA CH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITIO N OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEAR CH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURS E OF ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005- 06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STO OD COMPLETED. SINCE NO 16 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 16 INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED . 23. IT IS NOT IN DISPUTE BEFORE US THAT WITH RESPE CT TO THE ADDITIONS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.153A OF THE AC T, THERE WAS NO INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH AND THAT THE A O WHILE CONCLUDING THE ASSESSMENT U/S.153A OF THE ACT DEALT WITH THE HSBC BANK ACCOUN T AT GENEVA, SWITZERLAND ON RECEIPT OF SPECIFIC INFORMATION FROM SOURCES, WHICH ARE NOT DISCLOSED BUT ADMITTEDLY NOT FOUND OR DISCOVERED AS A RESULT OF SEARCH CONDUCTED U/S.132 OF THE ACT ON THE ASSESSEE. IT IS ALSO NOT DISPUTED THAT FOR A.Y.2006-07 THE AS SESSEE FILED HER RETURN OF INCOME U/S 139 OF THE ACT ON 12.12.2006 DECLARING TOTAL INCOME OF RS.1,18,266/-. NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED FOR MAKING THE ASSESSM ENT U/S 143(3) OF THE ACT WITHIN THE PERIOD LAID DOWN IN THE PROVISO TO SECTION 143 (2) OF THE ACT NAMELY 30.09.2007. AS FAR AS A.Y.2007-08 IS CONCERNED THE ASSESSEE FILED HER RETURN OF INCOME ON 27.02.2008 DECLARING TOTAL INCOME OF RS.1,27,820/- U/S 139 OF THE ACT. ADMITTEDLY NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED FOR MAKING THE ASSESSM ENT U/S 143(3) OF THE ACT WITHIN THE PERIOD LAID DOWN IN THE PROVISO TO SECTION 143 (2) OF THE ACT NAMELY 30.09.2008. THEREFORE, ASSESSMENT PROCEEDINGS STOOD COMPLETED A ND THAT IN ANY CASE ON THE DATE OF SEARCH I.E. ON 28.07.2011 AND 23.09.2011, THE ASSES SMENT FOR THE IMPUGNED ASSESSMENT YEARS 2006-07 & 2007-08 WERE NOT PENDING. THEREFORE THE ACCEPTANCE OF THE RETURN OF INCOME AMOUNTS TO AN ASSESSMENT AND SUCH ASSESSMENT DID NOT ABATE IN TERMS OF THE SECOND PROVISO TO SECTION 153A(1) OF THE ACT. IT I S THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE IMPUGNED ADDITIONS MADE BY TH E ASSESSING OFFICER COULD NOT HAVE BEEN MADE IN THE IMPUGNED ASSESSMENT PROCEEDINGS AS THEY ARE NOT BASED ON ANY MATERIAL SEIZED OR FOUND DURING THE COURSE OF SEARC H AT THE BUSINESS PREMISES OF THE ASSESSEE. 24. WE ARE OF THE VIEW THAT THE PROPOSITION CANVAS SED BY THE LEARNED COUNSEL FOR THE ASSESSEE FINDS SUPPORT FROM THE VARIOUS DECISIONS C ITED BY HIM. THE PROPOSITION 17 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 17 CANVASSED BY THE LEARNED DR IS SUPPORTED BY THE DEC ISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING (SUPRA) IN WHICH THE RULING OF THE SPECIAL BENCH IN THE CASE OF ALCARGO LOGISTICS (SUPRA) HAS NOT BEEN ACCEPTED. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTA L WAREHOUSING CORPORATION ITA NO.523/2013 JUDGMENT DATED 21.4.2015 AFTER REFERRIN G TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA ( SUPRA) AND OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING (SUPRA) HAS TAKEN THE VIEW THAT THE DECISION RENDERED BY THE SPECIAL BENCH IS TO BE FOL LOWED. IN THE SUBSEQUENT DECISION RENDERED BY THE HONBLE DELHI HIGH COURT IN THE CAS E OF KABUL CHAWLA (SUPRA), THE VIEW EXPRESSED BY THE SPECIAL BENCH OF ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS (SUPRA) HAS BEEN ACCEPTED. THERE IS NO DECISION OF THE HONBLE CALCUTTA HIGH COURT, WHICH IS THE JURISDICTIONAL HIGH COURT ON THE ISSUE . WE ARE OF THE VIEW THAT THE VIEW EXPRESSED BY THE HONBLE BOMBAY HIGH COURT AND THE HONBLE DELHI HIGH COURT HAS TO BE FOLLOWED BEING VIEWS IN FAVOUR OF THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 25. WE THEREFORE HOLD THAT THE SCOPE OF THE PROCEE DINGS U/S.153A IN RESPECT OF ASSESSMENT YEAR FOR WHICH ASSESSMENT HAVE ALREADY B EEN CONCLUDED AND WHICH DO NOT ABATE U/S.153A OF THE ACT, THAT THE ASSESSMENT WILL HAVE TO BE CONFINED TO ONLY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH. THE NEXT ASPECT TO BE CONSIDERED IS AS TO WHEN RETURNS OF INCOME FILED U/S.139 OF THE A CT ARE SHOWN TO HAVE BEEN ACCEPTED WITHOUT AN INTIMATION U/S.143(1) OF THE ACT OR WITH OUT ANY NOTICE ISSUED U/S.143(2) OF THE ACT WITHIN THE TIME LIMIT CONTEMPLATED BY THE P ROVISO THERETO, CAN BE SAID TO BE ASSESSMENT PROCEEDINGS CONCLUDED THAT HAVE NOT ABAT ED U/S.153A OF THE ACT. SECTION 153A OF THE ACT, USES THE EXPRESSING PENDING ASSES SMENT OR REASSESSMENT'. WHEN A RETURN IS FILED AND WHEN NEITHER AN ACKNOWLEDGEMENT OR INTIMATION U/S.143(1)OF THE ACT IS ISSUED NOR A NOTICE U/S.143(2) OF THE ACT IS ISS UED WITHIN THE TIME LIMIT LAID DOWN IN THE PROVISO TO SECC.143(2) OF THE ACT, THE PROCEED INGS INITIATED BY FILING THE RETURN ARE CLOSED. IN THE PRESENT CASE, THE PERIOD FOR ISSUI NG THE NOTICE U/S 143(2) ELAPSED. 18 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 18 THEREFORE THE PROCESS HAS ATTAINED THE FINALITY WHI CH CAN ONLY BE ASSAILED U/S 148 OR 263 OF THE ACT. IT CAN THUS BE CONCLUDED THAT MAKING OF AN ADDITION IN AN ASSESSMENT UNDER SECTION 153A OF THE ACT, WITHOUT THE BACKING OF INC RIMINATING MATERIAL, IS UNSUSTAINABLE EVEN IN A CASE WHERE THE ORIGINAL ASSESSMENT ON THE DATE OF SEARCH STOOD COMPLETED BY ABSENCE OF ISSUE OF INTIMATION UNDER SECTION 143(1) OF THE ACT OR BY NOT ISSUING NOTICE U/S.143(2) OF THE ACT WITHIN THE TIME LIMIT LAID DO WN IN THE PROVISO TO SEC.143(2) OF THE ACT, RESULTS IN AN ASSESSMENT PROCEEDINGS AND WHERE SUCH ASSESSMENT PROCEEDINGS ARE COMPLETED PRIOR TO THE DATE OF SEARCH THEN THEY DO NOT ABATE IN TERMS OF THE SECOND PROVISO TO SECTION 153A(1) OF THE ACT. THE DECISION OF THE ITAT KOLKATA BENCH RENDERED IN THE CASE OF SHRI BISHWANATH GARODIA (SU PRA) ON IDENTICAL FACTS OF THE CASE AS THAT OF THE ASSESSEE IN THE PRESENT CASE, CLEARLY S UPPORTS OUR CONCLUSIONS AS ABOVE. 26. IN THE LIGHT OF THE DISCUSSION ABOVE, OUR CONC LUSION IS THAT IN THE PRESENT CASE, THE ISSUE DEALT WITH BY THE AO IN THE ASSESSMENT ORDER U/S.153A OF THE ACT, COULD NOT AND OUGHT NOT TO HAVE BEEN EXAMINED BY THE AO IN THE AS SESSMENT PROCEEDINGS U/S.153A OF THE ACT AS THE SAID ISSUE STOOD CONCLUDED WITH THE ASSESSEES RETURN OF INCOME BEING ACCEPTED PRIOR TO THE DATE OF SEARCH AND NO NOTICE HAVING BEEN ISSUED U/S.143(2) OF THE ACT WITHIN THE TIME LIMIT LAID DOWN IN THAT SECTION . SUCH ASSESSMENT DID NOT ABATE ON THE DATE OF SEARCH WHICH TOOK PLACE ON 28.3.2008. IN RE SPECT OF ASSESSMENTS COMPLETED PRIOR TO THE DATE OF SEARCH THAT HAVE NOT ABATED, THE SCO PE OF PROCEEDINGS U/S.153A OF THE ACT HAS TO BE CONFINED ONLY TO MATERIAL FOUND IN THE CO URSE OF SEARCH. SINCE NO MATERIAL WHATSOEVER WAS FOUND IN THE COURSE OF SEARCH, THE ADDITIONS MADE BY THE AO IN THE ORDER OF ASSESSMENT FOR BOTH THE ASSESSMENT YEARS C OULD NOT HAVE BEEN SUBJECT MATTER OF PROCEEDINGS U/.S.153A OF THE ACT. CONSEQUENTLY, TH E SAID VARIOUS ADDITIONS MADE IN THE ORDERS OF ASSESSMENT OUGHT NOT TO HAVE OR COULD NOT BE MADE BY THE AO. GR.NO.1 RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE ACCO RDINGLY ALLOWED. 27. IN VIEW OF THE ABOVE CONCLUSIONS, THE OTHER GR OUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS, DO NOT REQUIRE ANY CONSIDERATIO N. 19 IT(SS)A.NOS.97&98/KOL/2015 SMT. YAMINI AGARWAL A.YR.2006-07 & 2007-08 19 28. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 19.04.2017. SD/- SD/- [DR.ARJUN LAL SAINI] [ N.V.VASUDEVA N ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19.04.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. SMT. YAMINI AGARWAL, 609, O , NEW ALIPORE, KOL KATA-700053. 2. D.C.I.T., CENTRAL CIRCLE-3(3), KOLKATA. 3. CIT(A)-21, KOLKATA 4. C.I.T.-2, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES