SHRI RASHMIKANT VALJI BHALODIA,RAJKOT-GUJARAT V. THE ASSTT. COMMR. OF INCOME TAX, CEN. CIR.-1, RAJKOT-GUJARAT

CO 3/RJT/2021

AI Insights

This case involves a series of appeals and cross objections related to the income tax assessments of Rajnikant Mohanlal Bhalodia and Rashmikant V. Bhalodia for the assessment years 2006-07 and 2007-08. The primary issue revolved around the validity of the assessments made under section 153A of the Income Tax Act, following a search operation. The Revenue challenged the CIT(A)'s decision to delete the protective additions made in the hands of the assessees, arguing that the additions were justified based on incriminating material found during the search. However, the Tribunal found that the assessments were not completed within the statutory time limits and that the additions were not supported by any incriminating material specifically related to the assessees.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 40067 (ITAT-RAJKOT)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-01-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Other Referred Cases: Kabul Chawla vs. CIT, Vinod Solanki vs. Union of India, Kailashben Manharlal Choksi vs. CIT, Nirma Textile Mills (P) Ltd. vs. ACIT, DCIT vs. Ratan Corporation, Jyotich and Bhaichand Saraf & Sons (P) Ltd. vs. DCIT, Swarna Singh vs. State of Punjab, National Agricultural Cooperative Marketing Federation of India Ltd. vs. Union of India, Murray & Company vs. Ashok Kumar Nevatia, MC Mehta vs. Union of India, UP Residents Employees Cooperative House Buildings Society vs. Noida, Anilkumar Gopikishan Agrawal vs. Assistant Commissioner of Income Tax, Bhushan Lal Sawhney vs. DCIT, Central Circle-3(3), Kolkata
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY PUNGLIA
• Assessee Lawyers: S.N. SOPARKAR; .
• Keywords: Set aside; Opportunity of being heard; Additional evidence; Retrospective amendment; Reassessment proceedings; Question of law; Corroborative evidences; Unexplained investment; Income from undisclosed sources; Document seized; Peak credit; Onus to prove; Period of limitation; Retraction; Principle of natural justice; Search and seizure; Advance ruling; Loose papers; Competent authority; Validity of assessment; Double taxation relief
• Section: 148; 143(3); 142(1); 143(2); 201; 143(1); 64; 48; 153; 132; 153A; 43; 22; 69; 90; 13; 92CA; 139; 153C; 63; 142(2A); 191; 72; 20

Judgement Text

" Page | 1 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकरअपीलसं./ITA No.30& 31/RJT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2006-07& 2007-08) (Physical Hearing) Assistant Commissioner of Income Tax, Central Circle-1 Rajkot Vs . Shri Rajnikant Mohanlal Bhalodia 8th Floor, Sita Apartment, Nr. Pradyuman Police Station, Sadar Station Sadar Bazar, Rajkot-360001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABNPB9252D (Revenue) (Respondent) & CO No.5 & 6/RJT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2006-07& 2007-08) (Physical Hearing) Shri Rajnikant Mohanlal Bhalodia 8th Floor, Sita Apartment, Nr. Pradyuman Police Station, Sadar Station Sadar Bazar, Rajkot-360001 Vs. Assistant Commissioner of Income Tax, Central Circle-1 Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABNPB9252D (Assessee) (Respondent) आयकरअपीलसं./ITA No.32 & 33/RJT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2006-07 & 2007-08) (Physical Hearing) Assistant Commissioner of Income Tax, Central Circle-1 Rajkot Vs. Shri Rashmikant V. Bhalodia, 7th Floor, Sita Apartment, Nr. Pradyuman Police Station Sadar Bazar Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABNPB9253C (Revenue) (Respondent) Page | 2 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia & CO No.3&4/RJT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2006-07 & 2007-08) (Physical Hearing) Shri Rashmikant V. Bhalodia, 7th Floor, Sita Apartment, Nr. Pradyuman Police Station ,Sadar Bazar Rajkot Vs. Assistant Commissioner of Income Tax, Central Circle-1 Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABNPB9253C (Assessee) (Respondent) Assessee by : Shri S.N. Soparkar, Sr. Adv.-AR Respondent by : Shri Sanjay Punglia, CIT-DR Date of Hearing : 14/11/2024 Date of Pronouncement : 09/01/2025 आदेश / O R D E R PER, BENCH, This is bunch of eight appeals, consisting four appeals filed by the Revenue and four Cross Objections filed by two different assessees, all are directed, against the separate orders passed by the Commissioner of Income Tax (Appeals), which is turn arise out of separate assessment orders, passed by the Assessing Officer u/s 153A r.w.s. 143(3) of the Income Tax Act 1961(hereinafter referred to as the “Act”). 2.Since the issue involved in these four appeals of Revenue and four cross objections of different two assessees, are similar and identical, therefore, we have clubbed these Revenue`s appeals and Assessee`s cross objections, and heard together and a consolidated order is being passed for the sake of convenience and brevity. The facts, as well as grounds of appeal, narrated in revenue’s appeal in ITANo.30/RJT/2021, for assessment year 2006-07 in the case of Rajnikant Mohanlal Bhalodia, Page | 3 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia have been taken into consideration for deciding these Revenue’s appeals. The facts, as well as grounds of appeal, narrated in Assessee`s Cross Objection No.05/Rjt/2021, for assessment year 2006-07, in the case of Rajnikant Mohanlal Bhalodia, have been taken into consideration for deciding these Cross Objections. 3.Grounds of appeal raised by the Revenue in lead case in ITANo.30/RJT/2021, are as follows: “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that any addition during the assessment u/s 153A has to be confined to the incriminating material found during the course of search u/s 132(1) of the Act, even though, there is no such stipulation in sec. 153A of the Act. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating that sec. 153A requires a notice to be issued requiring the assessee to furnish his return of income in respect of each assessment year falling within six assessment years and to assess or re-assess the total income of those six assessment years, and that the scheme of assessment or re-assessment of the total income of a person searched will be brought to naught if no addition is allowed to be made for those six assessment years in the absence of any seized incriminating material. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating that while computation of undisclosed income of the block period u/s 158BB was to be made on the basis of evidence found as a result of search or requisition of books of accounts, there is no such stipulation in sec. 153A and sec. 153B specifically states that the provisions of Chapter-XIV-B, under which sec. 158BB falls, would not be applied where a search was initiated u/s 132 after 31/5/2003. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating that assessment in relation to certain issues not related to the search and seizure may arise in any of the said six assessment years after the search u/s 132 is conducted in the case of the assessee, and that if the interpretation of the Id. CIT(A) were to hold it will not be possible to assess such income in the 153A proceedings, while no other parallel proceedings to assess such other income can be initiated, leading to no possibility of assessing such other income, which could not have been the intention of the legislature. Further, the AO is duty bound to assess correct income of assessee as held in various judgments. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.26,33,23,482/- made on account of the Page | 4 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia deposit/investment in HSBC Geneva Bank Account held by the assessee& his cousin brothers jointly. 6. On the facts and in the circumstances of the case and in law the impugned order passed by the Ld. CIT(A) is contrary to law in as much as the addition made on account of undisclosed foreign bank account has been made on the basis of incriminating documents duly confronted to the assessee during the course of search. 7. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has not following the proposition of law laid down in the Finance Act, 2012. 8. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 9. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent.” 4.Grounds raised by the assessee, in Cross Objection No.05/Rjt/2021, for assessment year 2006-07, in the case of Rajnikant Mohanlal Bhalodia, are as follows: 1) The grounds of appeal mentioned hereunder are without prejudice to one another. 2) The Ld. Commissioner of Income Tax (A)-11, Ahmedabad [hereinafter referred to as the “CIT(A)”] erred on facts as also in law in not deciding the ground of appeal related to initiation of the proceedings and validity of notice issued u/s 153A of the Income-tax, 1961 [hereinafter referred as to the “Act”]. The notice issued u/s. 153A of the Act is bed in law and without jurisdiction and therefore the same may kindly be quashed. 3) The Ld. CIT(A) erred on facts as also in law in not deciding on merit, the ground of appeal related to addition made of Rs. 26,33,23,482/- on protective basis on account of peak balance of impugned foreign bank account. The action of Ld. CIT(A) in not deciding ground of appeal on merit is unjustified. The addition made is kindly be directed to deleted on merit. 4) The Ld. CIT(A) erred on facts as also in law in not deciding on merit, the ground of appeal related to disallowance of interest expense of Rs. 25,000/- u/s. 144A of the Act. The Action of Ld. CIT(A) in not deciding grounds of appeal on merit is unjustified. The disallowance made is kindly be directed to deleted on merits. 5) Your honour’s appellant craves leave to add, amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal. Page | 5 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 5.The relevant material facts, as culled out from the material on record, are as follows. A search action u/s132 of the Act was carried out at the premises of the assessee on 08.09.2011. Consequent to search u/s132 of the Income Tax Act, the proceedings u/s 153A of the Act, were initiated by issuing notice dated 12.06.2012, which was duly served upon the assessee. The assessee was required to file return of income within 30 days of the receipt of the notice. In response to notice, the return of income showing total income of Rs.15,75,410/- was filed by the assessee on 18.10.2013. A notice u/s 143(2) of the Act, was issued on 12.11.2013 which was served upon the assessee. Further detailed questionnaire was issued on 07.06.2013, alongwith a notice u/s. 142(1) of the Act. In response to the notices hearing, the authorized representative attended to the assessment proceedings, from time to time and filed details called for and written submissions, were also filed before the assessing officer. 6.In the case of the assessee, consequent to search u/s 132 of the Act, on 08.09.2011, notices u/s 153A of the Act were issued for AYs 2006-07 to 2011-12, on 12.06.2012. The search relevant assessment year of 2012-13 was also taken up for scrutiny. The time limit to complete the assessments for the aforesaid assessment years as per the provisions of section 153B(1) expires on 31.3.2014. However, in the case of the assessee, a reference to the competent authority was made by the Commissioner of Income tax (Central- II) Ahmedabad vide letter dated 01.01.2013, with a request to get the details of foreign bank accounts held by the assessee, with HSBC Geneva. The CIT Central-II Ahmedabad has forwarded a copy of letter bearing No 504/0300/2012-FTD-1 dated 21.02.2013, received from the Under Secretary (FT&TR-III)(2). As per para 2 of the said letter, a reference for administrative assistance has been made to the competent Page | 6 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia authority under the provisions of 'Exchange of information' article to Indo-Switzerland Double Taxation Avoidance Agreement (DTAA). Since a reference was made to the competent authority and the information was not received till 31.3.2014, the limitation date to pass the assessment orders for the AYs 2006-07 to 2012-13, gets extended as per explanation (viii) to section 153B of the Act. By mistake, assessing officer wrote Explanation (viii), it should be Explanation(ix). Explanation (ix) to section 153B reads as under:- Explanation - In computing the period of limitation for the purposes of this section “(ix) the period commencing from the date on which a reference or first of the references for exchange of information is made by an authority competent under an agreement referred to in section 90 or section 90A and ending with the date on which the information requested is last received by the Commissioner or a period of one year, whichever is less, shall be excluded. Since a reference was made to the competent authority and information is yet to be received therefore, one year from the end of 31.3.2014 shall be the date of limitation viz., 31.3.2015. 7. As per assessing officer, there was receipt of specific information that the assessee was holding and maintaining foreign bank account with identification details as BUP SIFIC_PER_ID 5090154184, PER ID 77878 and PER NO 154184. The client profile was created on 31.01.2000. The information also revealed names of following two persons; viz., Rajeshkumar Govindlal Patel and Shri Rashmikant Bhalodia. The information contained the following salient features. The name of the profit Rashmikant V Bhalodia/Rajnikant Page | 7 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia customer Bhalodia/Rajeshkumar G Patel Use costomer code 5095020378/5090154184/5090181764 List of IBAN IBAN: CH22 0868 9050 9110 0491 1/CH44 0868 9050 9110 0490 3/CH68 0868 9050 9124 8333 3 Heritage constant in December 2005(in $) 56,43,796 Heritage constant in December 2006(in $) 68,55,750 Heritage Max constant over the period 2006(in $) 69,33,663 Creation date 31.01.2000 Postal Address of the individual 71, Ami Appartment, oppGirnar Cinema Rajkot, India (Legal Address) 8.During the course of statement recorded u/s 132(4), Shri Rajesh Patel, main person of the group had admitted additional unaccounted income of Rs. 39.60 crores on ad-hoc basis in respect of entire group on account of unrecorded transactions, investments and errors and omissions in accounts noticed and / or may be noticed and which may be received from any agenсу or medium. During the course of assessment proceedings, statement of the assessee was recorded, wherein he admitted that, whatever Shri Rajesh Govindlal Patel had deposed, is also binding upon him as well. 9. However, in the returns of income filed u/s 153A, it was noticed by the assessing officer that the assessee had not honored this admission and the income did not relate to any Investments / interest in/from foreign bank accounts. Various correspondences in this regard were made with the assessee. In reply to all the communications, the assessee had only one thing to state, viz, he was not aware of having any foreign bank account. In the meantime, the Investigation Wing had submitted 'consent waiver form' to the assessee and requested him to sign the same, as this would facilitate the department to gather the information. However, the assessee Page | 8 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia denied signing of the same. On being asked as to why he was not signing the 'consent waiver form', it was submitted that, the Investigation Wing was categorically requested to provide the relevant data / information duly authenticated under the seal and signature of authorized person of such bank and / or institution. It was also submitted that in the absence of any such details, it will not be possible to sign any paper / proforma, particularly when it is not in his knowledge and belief. The assessee further submitted that; he shall sign the proforma subject to qualifications as to the fact that they had no knowledge about any such account / investment. 10. Therefore, with a view to ascertain and reaffirm the facts, the assessee was summoned by the assessing officer and assessee`s statement was recorded on oath on 25.11.2013. In the said statement, the assessee was specifically asked to furnish details about foreign bank accounts. In reply to question No.10, the assessee, deposed that, as far as I remember and to the best of my knowledge and belief, I do not have such foreign bank accounts. (verbatim) 11. The assessing officer asked next question, which was more direct, viz., whether assessee has opened any bank account with HSBC Geneva, either directly or through any of agents or relatives? In reply to this question, the assessee denied having opened any such bank account. Again, in the next question assessee was informed that the Department is in possession of information that the assessee, along with his brothers, have foreign bank accounts, and what he wants to say on this aspect. In reply to this question, he again denied having any foreign bank accounts. Page | 9 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 12. The assessee was then asked that, if assessee was not having any details of foreign bank accounts, then what prompted Shri Rajesh Patel to make a disclosure of Rs. 39.60 crores in his statement recorded on 15.9.2011, u/s 132(4) of the Act. In reply, assessee stated as under: Ans:- Detailed reply shall be given by Rajesh Patel, in this connection. However, I may state that the disclosure made by Rajesh Patel was on ad- hoc- basis and to cover up any discrepancies / errors / omissions etc, that may be found and to buy mental peace and avoid litigations. 13. From the above facts, the assessing officer noticed that it is clear that, the assessee was aware of the existence of a foreign bank account belonging to him as well as foreign bank accounts belonging to other members of the group and the admission of Rs 39.60 crores includes investments in foreign bank accounts, though however, in the statements dated 22.11.2013, assessee denied to have any knowledge of foreign bank accounts. Therefore, it is clear that, the assessee had withheld disclosure of foreign bank account and assessee had retracted the disclosure of Rs. 39.60 Crore. Therefore, the assessee was asked to show cause as to why the disclosure of Rs 37.55 (Rs. 39.60 crores admitted during search minus the disclosure made by the members of the group including the assessee) should not be treated as the unaccounted income of the assessee (inclusive of funds deposited / lying in foreign bank account. 14. Thus, during the assessment proceedings, the assessing officer issued show -cause notice to explain the transactions in the HSBC Bank account. In response to the show -cause notice of the assessing officer, the assessee submitted the reply before the assessing officer, which is reproduced below: Page | 10 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia “In connection with the above referred Show cause served upon me and requiring me to show cause as to why the disallowance/disclosure proposed therein should not be added to my total income, I without prejudice to my letter dated 01.12.2014 challenging the validity of assessments as the same are time barred, beg to submit as under: 1. As regards the show cause as to why the alleged investments in the so-called undisclosed foreign bank accounts worked out at Rs. 30,70,13,736/- should not be assessed to tax as my income for the Assessment Years 2006-07 and 2007-08, it is regretfully submitted that though we have been repeatedly requesting you to avail the authenticated and certified data as to so-called account/investments, nothing has been availed till this date and we have been deprived from our fundamental right to have relevant information which is totally unlawful. In the absence of any such details as to investment and without there being any authenticated data availed by the department, proposed addition on account of alleged undisclosed income/investment at Rs. 30,70,13,736/- is strongly objected. 2. Without prejudice to the above, it is also requested that the details as to the origin as also the source from where the data referred to in your above referred Show Cause notice has been gathered by you may kindly be supplied and also allow us an opportunity of cross examining the person/source availing such data be given at the earliest so as to enable us to proceed further in the matter. 3. Without prejudice to the above, it is to submit that during the course of search and seizure operation carried out w/s. 132(1) of the Income Tax Act, 1961 (hereinafter referred as the \"Act\"), not a single incriminating paper or document was found so as to suggest and form a belief that any account/investment abroad, on the basis of which undisclosed income may be worked out. It is also fact on record that during the course of search and thereafter in various correspondences our reply was the same i.e. we do not have any information as to alleged bank account/investment abroad and the investigation wing of the department as also you honour were repeatedly requested to provide such authenticated and certified data from so called banks so as to enable us proceed further in the matter. However, it is regretful to submit that no single evidence as requested is availed so far and therefore, in the absence of data as requested, the addition if any made will result into unlawful and illegitimate action on the part of the department and is strongly objected 4. With reference to para No.3 of the Show Cause notice we state that no foreign bank account has ever been operated by us. Therefore, your suggestion that we are \"aware\" of such operation is incorrect. Further we deny that investment is made by any of us. 5. With reference to para No. 4 of the Show Cause notice, we submit that all throughout we have been requesting you to supply to us the source of information stated to have been gathered by you. The same has not been given to us. In view of this we deny that any bank account was maintained for the benefit of any of us. 6 Please note that though your letter refers to some document annexed to your letter as Annexure 'B' the same has not been supplied to us. If reference is to two Page | 11 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia pages of your letter \"in the Chart\", we submit that none of the alleged transactions referred to therein has been carried out by any of us. In fact, we are not even aware of the transactions and deny any connection with us. In fact, there are inconsistencies in the so called, code numbers also. Your suggestion that we are aware of these bank accounts is incorrect. We are not even sure about the genuineness of the documents stated to have been received by you because, as we gather from the information available in public domain, the said data is allegedly stolen data and even the bank has not accepted the correctness thereof. Under the circumstances any calculations based on information, of which source and authenticity is doubtful is meaningless. If you are able to provide authenticated data we would examine the full facts and give our submissions accordingly. 7 The details referred to in the above referred Show Cause notice is not supported by any documentary evidence nor is certified by competent authority therefore the same cannot be used as evidence. Presumption may also be raised that the data on which department is relying might have been manipulated, re-created, or corrupted with ease. Thus, unless data certified by the competent authority is availed, no addition on the basis of such vague data can be made and your, proposal to make addition of Rs. 30,70,13,736/-is strongly objected. 8. Without prejudice to the above, it is to submit that disclosure of income of Rs. 39.60 Crores made by Shri Rajeshkumar G. Patel vide letter dated 12.09.2011 filed before the Additional Director of Income Tax, Investigation, Rajkot and also in his statement recorded w/s. 132(4) of the Act dated 15.09.2011 was only on ad- hoc basis without there being any specific item of income/investment and without making bifurcation of person-wise/year-wise undisclosed income just to cover up any transactions, investment, out goings, errors, omissions, discrepancies that may be found in any manner based on any statements, entries, notes scribbling, noting etc. in the books of account, other documents, loose papers, transactions etc. However, on proper analysis of relevant records nothing more than Rs. 2.05 crore was required to be offered in the returns of income of respective assessee’s files. Clarification in this respect was given in the statement of Shri Rajeshkumar G. Patel recorded on oath by your honour on 22.11.2013. Further in order to make our bona-fide clear, Shri Rajeshbhai G. Patel has sworn the facts in an affidavit dated 21.03.2014 so that the factual aspects of the situation and under what circumstances, the disclosure of income was obtained during the search are clearly explained. (Copy of affidavit is attached herewith) 9. Without prejudice to the above, it is also submitted that in computing the total disclosure of income before the department, telescoping of the various additions/disallowances made in the assessment orders of the group persons /concerns is required to be taken in to consideration. 10. During the course of post-search proceedings and before filing returns of income u/s 153A of the Act, I had repeatedly requested you to provide me with the data/details obtained by the department from any authenticated sources in respect of alleged bank accounts/investment abroad so as to enable me to analyses the same and work out unaccounted income, if any. However, no such data/details from any authenticated sources have been provided till the date. Therefore, in the absence of relevant information, returns of income u/s. 153A of the Act were filed Page | 12 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia by reserving the right to amend/revise the said returns, if any such information/data would be provided by the department in the future. In the notes annexed to and forming part of returns of income filed u/s. 153A of the Act, I had submitted as under: \"...in the absence of any details as to undisclosed income, the assessee is filing the returns of income showing therein nil undisclosed income. However, if during the course of assessment proceedings or appellate / revision proceedings if addition is made to the returned income, either on the basis of any information or otherwise then to the extent of disclosure made by Shri Rajeshkumar Govindlal Patel, the additions be telescoped and no penal action shall be initiated on the same.\" 11. It needs to be considered from the above that out of total disclosure of income at Rs. 39.60 Crore, undisclosed income to the extent of Rs. 2.05 crores was offered to tax and since there was no remaining income, nor has the department pointed out any error, omission or discrepancy which remains untaxed. Therefore, no addition could be made only on the basis of statement without there being corresponding material suggesting such income. Reliance is placed on following decisions: Hon'ble Supreme Court of India in the case of Vinod Solanki vs. Union of India 2008 (16) SCC-0537-SC. Hon'ble High Court of Gujarat in the case of Kailashben Manharlal Choksi vs. CIT (2010) 328 ITR 411 (Guj.). Hon'ble High Court of Gujarat in the case of Nirma Textile Mills (P) Ltd. ACIT 284 ITR 325 (Guj). Hon'ble High Court of Gujarat in the case of DCIT vs. Ratan Corporation 197 ITR 536 (Guj). Hon'ble ITAT, Pune Bench 'A' in the case of Jyotich and Bhaichand Saraf & Sons (P) Ltd. vs. DCIT (2013) 154 TTJ 226 (Pune). Reliance is also placed on the CBDT Circular No. 286 dated 10.03.2003 mandating assessing officers to rely upon the evidences / materials gathered during the course of search/survey while framing the assessment orders. 12. We have made the above submission and hope that the same satisfies your requirements. However, if you are not satisfied, kindly grant us an opportunity of being heard before taking any adverse decision. Needless to submit that as submitted from time to time earlier, we are also in the process of gathering relevant data though we are not beneficiaries of said transactions nor the said transactions are our income at all” Page | 13 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 15. However, the assessing officer rejected the contention of the assessee and observed that first of all, affidavit filed by the Rajesh Patel, which is binding upon the assessee, has been retracted after 29th months, by the Rajesh Patel, which cannot be accepted. The assessing officer observed that search assessments, being for the period assessment year (A.Y.) 2006-07, the maximum amount invested for the period was found to be in the February 2006, which is US $ 59,56,197.30. The exchange rate, as on March 2006, was Rs. 44.21 for a US dollar. Therefore, the investment in INR works out to Rs. 26,33,23,482/-, which is treated as unexplained investment of the assessee, and added to his total income. It is also noted here that, the bank account details and the funds lying therein, are in respect of three persons, viz., the assessee and his two cousin brothers. The assessees have not come forward to clarify their individual respective holdings, in spite of repeated opportunities. Therefore, there is no option but to make this addition in all the three hands. Therefore, the addition is made on substantive basis in the hands of Shri Rajesh G Patel. As this addition is made on substantive basis in the hands of Shri Rajesh G Patel, this addition is made on protective basis in the hands of the assessee to the tune of Rs. 26,33,23,482/-. 16.Aggrieved by the order of the assessing officer, the assessee, carried the matter in appeal before the Ld. CIT(A), who has deleted the protective addition made in the hands of the assessee. The ld. CIT(A) deleted the protective addition made in the hands of the assessee on account of three reasons, Viz: (1) The assessment order was not passed, by the assessing officer, within the time limit prescribed under section 153B of the Act. The statutory time limit to pass the assessment order was up to 31.03.2014, however, the assessing officer has framed assessment order on 17.02.2015, which was much later to the statutory time limit prescribed Page | 14 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia u/s 153B of the Act. Therefore, the Ld. CIT(A) has quashed the assessment order itself, and (2) There was no incrementing material in the hands of the assessing officer, to make the protective addition and (3) Since the substantive addition was made in the hands of Shri Rajesh Govindlal Patel by the assessing officer, therefore protective addition needs to be deleted in the hands of the assessee. 17. Aggrieved by the order of Ld. CIT(A), the revenue is in appeal before us and assessee has also filed cross objections before us. 18. Learned DR for the revenue, argued before as that now the Department has received authentic and correct information from the HSBC Bank, and such correct information may be considered by this Tribunal. The Department now filed the authenticated documents in the paper book, which may be considered by the Tribunal for deciding the issue under consideration. 19.The Ld. DR for the revenue, further argued that no doubt, the assessing officer, has rightly framed assessment order based on the incriminating material, in the hands of Rajesh G. Patel, on substantive basis, u/s 153A r.w.s 143(3) of the Act. However, in the hands of these two assessee’s protective additions were made by the assessing officer, to protect the interest of the revenue. Shri Rajesh G. Patel has mentioned in his statement and declared amount for taxation and this is supported by the statement of Shri Rajesh Patel, as well as bank statement of HSBC Bank Geneva. However, Shri Rajesh G. Patel, later on, retracted from his statement, which is not acceptable. Page | 15 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 20. The Ld. DR also submitted that Shri Rajesh G. Patel has retracted his statement after 29 months therefore, such retraction should not be valid, as it is after thought. While retracting statement, the assessee should submit the documents that on what basis he is retracting statement, which is absent therefore, retraction of the statement by the Shri Rajesh G. Patel is not valid, therefore, addition made by the assessing officer should be upheld. 21. On the other hand, Shri S.N. Soparkar-Sr. Adv; Ld. Counsel for the assessee argued that substantive addition was deleted by the jurisdictional, ITAT, Rajkot in the case of Shri Rajesh Govindlal Patel, vide order dated 12th April 2023 in ITANo.25 & 26/Rjt/2021 and CO Nos. 1 & 2/RJT/2021. The ld. Counsel stated that while deleting the addition, the ld. CIT(A) held that the assessment order was framed beyond the time limit prescribed under section 153B of the Act, therefore, the ld CIT(A) quashed the assessment order itself. The ld. CIT(A) also held on merit that there was no incriminating material in the case of the assessee, hence, in case of unabated assessment, the addition cannot be made without incrementing material. Therefore, ld. Counsel contended that assessee`s case under consideration, relates to protective addition only and since the substantive addition has already been sustained in the hands of Shri Rajesh G. Patel, therefore, protective addition should be deleted. 22. The Ld. Counsel, took us through paper book page No. 59 and gone through the statement of Shri Rajesh G. Patel, and stated that Rajesh G. Patel, has never admitted that the bank account belongs to him. That is, the assessee has not admitted in his statement about bank account. The assessee has simply stated in the statement that he would declare the amount for taxation to buy the mental peace, therefore, there is no specific Page | 16 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia mentioned in the statement of Shri Rajesh G. Patel that he had admitted that the unaccounted money was deposited in the bank account. Besides, the ld. CIT(A) as well as, Tribunal have held in the case of Shri Rajesh G. Patel that no addition should be made in the hands of the assessee, without incriminating material, therefore, retraction of statement by Rajesh G Patel, after 29 months, does not have any relevance in the assessee`s case under consideration, especially, when the additions were deleted by ld. CIT(A) as well as, Tribunal, by holding that there were no incriminating material, hence addition should not be made. Besides, it was not retraction of statement, by Shri Rajesh G. Patel, rather it was clarification of the documents and evidences already on record. Since the substantive addition as deleted by the Tribunal, in the case of Shri Rajesh Govindlal Patel, vide order dated 12th April 2023 (supra),therefore, there is no question to make the protective addition in the hands of the other party, that is, also without any incriminating material. 23. The Ld. Counsel also submitted that in case of a search case, and when the search case is related to unabated assessment, then settled position of law is that without incrementing material, the addition should not be made. The evidence, which the department is submitting before the Tribunal now did not find during the course of search. In case of search case, which is unbated assessment, the Income of the assessee should be computed based on the material found during the search. What the department, is now submitting before the Bench, the document which was not found during the search; therefore, it should not be admitted. These additional evidences, do not play any role, especially when the ld CIT(A) and the Tribunal has quashed the assessment order itself, being time barred. The assessee`s case is a search case, therefore, assessee`s income should be computed, based on the documents found during search. Over Page | 17 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia and above, the Ld. Counsel also submitted that there is no guaranty that these additional documents submitted by the Department are correct documents. Since the substantive additions have been already deleted in the hands of Rajesh G. Patel therefore, there is question to admit additional evidences in the hands of those parties in whose hands the protective additions were made only by assessing officer. Besides, these additional evidences, are not submitted by the Department as per Rule 29 of the Income Tax Rules, since the Department has not raised any ground to file these additional evidences. Therefore, learned Counsel contended that these additional evidences, should not be admitted in the hands of the assessee under consideration, in whose hands only protective addition was made. 24. In rejoinder, the Ld. CIT-DR for the Revenue, submitted that Rule 29 of the Tribunal Rules, do not come into play where the documents were to be submitted by the Department, before the Tribunal, first time, and in fact these documents were there on the record, and only thing was that these documents which were already on record were not authenticated documents, and now the Department got authenticated documents, therefore, these documents should be considered by the Tribunal. 25. In rejoinder, the Ld. Counsel for the assessee, Shri S.N. Soparkar, stated that substantive addition has already been admitted in the hands of person, Shri Rajesh G. Patel, there is no question to admit these evidences, in the hands of other person (assessee under consideration) in whose hands only protective addition was made. 26.We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents Page | 18 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. First, we shall adjudicate the issue raised by the ld. DR for the Revenue, pertaining to additional evidences. For the sake of clarity and also being pertinent, we reproduce below, Rule 29 of the Appellate Tribunal, Rules, 1963: “Production of additional evidence before the Tribunal. 29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.” From the above Rule, 29, pertaining to production of additional evidences before the Tribunal, it is vivid that the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal. However, for any other substantial cause, to pass orders, the Tribunal may allow, such evidence to be adduced. Therefore, it is discretionary, on the part of the Tribunal, to admit the additional evidences. However, such discretion, should be exercised in a judicial manner. 27. First of all, we find that the Department did not make any prayer, addressing, to the Income Tax Appellate Tribunal, to admit the additional evidences. The Ld. DR for the Revenue, submitted the following covering letter before the Tribunal, which is reproduced below, to admit the additional evidences. We find that such letter is pertaining to internal communication between the officers of the Income Tax Department. In Page | 19 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia such document, nowhere, it is mentioned that these are additional evidences to be submitted before the Tribunal. At least, a formal prayer from the department, is needed to admit any document or evidence for adjudication. Before us, the ld DR for the Revenue, filed a letter showing the internal communication between the officers of the Income Tax Department, such letter cannot be considered, prayer for admission of additional evidences, before the Tribunal. Top of the above, there is other covering letter, addressing to the Members of the Income Tax Appellate Tribunal, dated 14th May, 2024, wherein only Annexure- A and Annexure-B is mentioned, and there is no prayer from the department to admit any additional evidences. In the subject matter of this letter, only the word, “submission”, is written. Therefore, we did not find any prayer from the Department to admit additional evidences. A letter showing internal communication between the officers of the Income Tax Department, is reproduced below: Page | 20 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Page | 21 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Therefore, the above letter, which is, an internal communication between the officers of the Income Tax Department, cannot be considered, a prayer, to admit the additional evidences. The Law is well settled that when the statute requires to do certain thing, in certain way, the thing Page | 22 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. Thus, without ‘prayer’ by the Department, to admit additional evidences, such additional evidences, cannot be entertained (which is merely an internal communication between the officers of the Income Tax Department), hence, arguments advanced by Ld. DR for the Revenue is hereby rejected. 28. However, we have gone through the documents attached with the above letter of internal communication between the officers of the Income Tax Department, and noted that these are the same documents, which were available before the assessing officer, during the assessment proceedings, therefore, second inning should not be given to the assessing officer to re-look the same documents and evidences which were before him during the assessment proceedings. Moreover, on these documents and evidences, there is no certification stating that these are the true copy of the original documents. These documents and evidences are not attested, stating that these are the true copy of the original documents. Therefore, if any particular document, say, Xerox copy, if it is not attested or certified to be a true copy, it should not be admitted as evidence in the eye of law. 29. In the letter showing internal communication between the officers of the Income Tax Department, dated 19.04.2023, which is reproduced above, where in, this subject matter is written as follows: “Sub: Request to verify and communicate, if the enclosed document was received through official channel – in the matter of Shri Rajesh Kumar G. Patel, ITA No.25/RJT/2021-A.Y. 2006-07” Page | 23 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia We are adjudicating Revenue`s appeals in ITA Nos. 30,31,32 and 33/RJT/2021 and Assessee`s Cross Objections Nos. 3,4,5 and 6/RJT/2021. However, the above additional evidences, were filed by the Department, in respect of Shri Rajesh G. Patel in ITA No.25/RJT/2021, for assessment year 2006–07. Therefore, the above additional evidences, if any, do not pertain to these two assessees under consideration, Viz: Rajnikant M. Bhalodia and Rashmikant V. Bhalodia. Hence, these additional evidences, cannot be considered in the hands of these two assessees at any rate. 30. We note that when a search is related to unabated assessment, then settled position of law is that without incrementing material, the addition should not be made. The evidence, which the department is submitting before the Tribunal, now did not find during the course of search. In case of search, which is unbated assessment, the Income of the assessee should be computed based on the material found during the search, and not based on the additional evidences, which were not found by the search party during the search proceedings. If the department is submitting additional evidences in respect of unabated assessment of search, then, the assessee has also right to file additional evidences in respect of unabated assessment, wherein income is computed based on the material found during the search, and if it is allowed, to both the parties to submit their additional evidences, which were not found during the search proceedings, then it will become a never ending process and no finality can be achieved. This is not the intention of the legislature. 31. Besides, these additional evidences, do not play any role, especially when the ld CIT(A) and the Tribunal has quashed the assessment order Page | 24 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia itself, being time barred. The assessee`s case is a search case, therefore, assessee`s income should be computed, based on the documents found during search. 32. We also find that these additional evidences, are merely a dump documents, as they are not attested or certified to be a true copy, by the proper authority, hence cannot be considered for adjudication. Besides, these are the same documents, which were there before the assessing officer, during the original assessment proceedings, therefore, these documents cannot be restored back to the file of the assessing officer to re-examine the same documents, which he had already been examined by the assessing officer in the original assessment proceedings. Besides, these documents submitted before the Bench pertain to ITA No. 25/Rjt/2024 in case of Rajesh G. Patel. Moreover, there is no prayer by the Department to admit these evidences, in the hands of these assessees. Apart from this, the assessment order itself was quashed, being time barred, hence, there is no logic to admit these documents as additional evidences, even in the case of Shri Rajesh G. Patel. Besides, in case of search, the computation of income is done, based on the documents found during the search and not based on new additional evidences. Therefore, based on the above reasons, the request of the Ld DR to admit the additional evidences is hereby rejected command. 33. On merit of the case, we note that Ld. CIT(A) has quashed the assessment order itself, (being time barred) by observing as follows: “I have perused the assessment order, considered the written submissions filed, arguments of the AR and decisions/judgments of various courts. It is seen from the assessment order that the appellant has in his statement recorded during the assessment proceedings categorically admitted that whatever Shri Rajesh Govindlal Patel had deposed is also binding upon him, as well. Therefore, based upon the statement of the appellant, the AO made addition on substantive basis in the hands of Shri Rajesh Govindlal Patel and protective addition in the case of the appellant. Page | 25 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia It is worth to mention that the appeal for A.Y.2006-07 & 2007-08 have been decided in the case of Shri Rajesh Govindlal Patel (group person) in appeal No. CIT(A)-11/C.C.-1/11051 & 11052/2015-16 dated 28.10.2020. Being the identical issue involved in both cases, finding given in case of Shri Rajesh G. Patel is equally applicable to the facts of the appellant's case. For the sake of brevity finding given in case of Shri Rajesh Govindlal Patel is reproduced as under: \"6.4 This ground of appeal raised against the finalization of assessment proceedings after the expiry of the time limit prescribed u/s.153B(1)(viii) of the I.T. Act, 1961. It has been noticed that a reference to the competent authority was made by CIT (Central)- II, Ahmedabad vide letter dated 01.01.2013 for seeking information under exchange of information article in the DTAA with Swiss Federation. Subsequently, the FT & TR Division of CBDT vide letter dated 21.02.2013 informed that a formal request has been placed with the Swiss Authorities for furnishing of required details. As per the said letter a reference for administrative exchange has been made to the competent authority under the provisions of Exchange of Information Article-2 India Switzerland Double Taxation Avoidance Agreement. However, since the information was not received till 31.03.2014 and is yet to be received, therefore, limitation date for passing assessment order gets extended as per explanation (viii) to section 153B. As per AO the time limit for completion of assessment gets extended as per provisions of explanation (viii) to Section 153B of the IT Act for a further period of one year. As per AO, by virtue of referred extension the time barring date was extended to 31.03.2015. As per AO the relevant assessment order passed on 17.02.2015 was well within the limit envisaged as per the provisions of IT Act but the appellant objected the same. The appellant submitted that as per the prevalent provisions of law u/s.153B(1)(viii) the time limit for completion of assessment to be excluded was from date of reference and upto the date of receipt of the information or six months whichever is less. Appellant further submitted that the amendment in the provisions was made effective from 01.07.2012 and according to the amended provisions the time limit for completion of assessment was extended by excluding the period upto the date of receipt of such information or one year whichever is less. So, appellant has submitted that the amended provisions which were effective from 01.07.2012 were not applicable on the facts of the case as search action in its case was taken place on 08.09.2011 and even notice for filing of return of income u/s.153A was issued on 12.06.2012. In other words, the amended provisions were applicable to such cases where search action has been initiated on or after 01.07.2012 which is not the case of the assessee. Thus according to the appellant the extended time limit for completion of assessment was 31.03.2014 while the assessment has been completed on 17.02.2015. Thus, as per appellant the assessment completed was time barred. I have considered the submissions filed by the assessee as also the arguments of the AR in respect of time limit to pass such order contained in section 153B of the Act. The assessee relies on the fact that the information in possession of the department is not certified or authenticated and the source thereof is also not disclosed to the assessee. It is further claimed that the fate of queries raised before competent authority is also not known. The assessee further presumes that response to queries raised by FT&TR may have been denied as reported in some press reports. Under the circumstances, such reference without any authentic information or evidence does not allow the AO to extend the time limit to frame the assessment u/s 153A as per Explanation (viii) to section 153A of the Act. 6.5 Section 153B prescribes the time limit for assessment in search cases and Explanation thereto specifies the exclusion periods in this time limit. The time limit to pass assessment order in a search case is two years from the end of financial year in which the last of the authorizations for search u/s 132 was executed. Accordingly, the regular time limit in this case was 31.03.2014. Page | 26 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 6.6 Ongoing through the facts, submissions and the relevant provisions of law in respect of issue of time limit for completion of the assessment two important questions emerge, which are noted as under: 1. In view of the provisions of section 153B Explanation (viii), the exclusion of the time for completion of assessment has to be worked out. Whether this period of exclusion available would be of six months or one year at that time as per the prevalent provisions of the law. 2. The exclusion period of six months or one year would be started/counted from the date of reference for exchange of information i.e. from 21.02.2013 or would be counted from the limitation date for completing the assessment i.e. from 31.03.2014. 6.7 For analyzing and finding the answers of the above questions, briefly the facts are noted here under: Appellant had filed return U/s 139 for AY 2006-07 on 31.07.2006. Thereafter the intimation U/s 143(1) of the IT Act 1961 dated 05.12.2016 was issued to the appellant. A search was conducted at the residence and business premises of the appellant on 08.09.2011 and the last authorization was executed on 15.09.2011. Accordingly, the relevant period of the previous year was from 1st April 2011 to 31st March 2012. Thereafter, appellant had filed return of income under section 153 A on 18.10.2013.Accordingly, the time limit for completion of the assessment provided under section 153 B is Two Years from the end of the financial year in which last authorization is executed. In this case the Financial Year ended on 31st March 2012 and accordingly the period of two years ends on 31st March 2014 for completion of assessment. 6.8 Now it is found on the facts of case that the law applicable in the appellant's case would be the provisions of Section 153A r.w.s. 153B as amended by Finance Act 2011 as the subsequent amendment in the said section was made applicable only w.e.f. 01.07.2012. For ready reference the said section is as under; LAW APPLICABLE (Section 153A r.w.s. 153B (as amended by Finance Act 2011)) The provisions regarding the time-limit for completion of assessment under section 153A as per the provisions of Income Tax Act 1961 are reproduced here under: 153B. (1) Notwithstanding anything contained in section 153, the Assessing Officer shall make an order of assessment or reassessment,- (a ) in respect of each assessment year falling within six assessment years referred to in clause (b) of sub-section (1) of section 153A, within a period of two years from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed; (b ) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A, within a period of two years from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed: Provided that in case of other person referred to in section 153C, the period of limitation for making the assessment or reassessment shall be the period as referred to in clause (a) or clause (b) of this sub-section or one year from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other person, whichever is later: Provided further that in the case where the last of the authorizations for search under section 132 or for requisition under section 132A was executed during the financial year commencing on the 1st day of April, 2004 or any subsequent financial year, (i) the provisions of clause (a) or clause (b) of this sub-section shall have effect as if for the words \"two years\" the words \"twenty-one months\" had been substituted; (ii) the period of limitation for making the assessment or reassessment in case of other person referred to in Page | 27 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia section 153C, shall be the period of twenty-one months from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed or nine months from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other person, whichever is later: Provided also that in case where the last of the authorizations for search under section 132 or for requisition under section 132A was executed during the financial year commencing on the 1st day of April, 2005 or any subsequent financial year and during the course of the proceedings for the assessment or reassessment of total income, a reference under sub- section (1) of section 92CA— (i) was made before the 1st day of June, 2007 but an order under sub- section (3) of section 92CA has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the provisions of clause (a) or clause (b) of this sub-section shall, notwithstanding anything contained in clause (i) of the second proviso, have effect as if for the words \"two years\", the words \"thirty-three months\" had been substituted: Provided also that in case where the last of the authorizations for search under section 132 or for requisition under section 132A was executed during the financial year commencing on the 1st day of April, 2005 or any subsequent financial year and during the course of the proceedings for the assessment or reassessment of total income in case of other person referred to in section 153C, a reference under subsection (1) of section 92CA (i) was made before the 1st day of June, 2007 but an order under sub-section (3) of section 92CA has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the period of limitation for making the assessment or e assessment in case of such other person shall, notwithstanding anything contained in clause (ii) of the second proviso, be the period of thirty-three months from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A was executed or twenty-one months from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under section 153C to the Assessing Officer having jurisdiction over such other person, whichever is later. Explanation.—In computing the period of limitation for the purposes of this section,— (i) the period during which the assessment proceeding is stayed by an order or injunction of any court; or (ii) the period commencing from the day on which the Assessing Officer directs the assessee to get his accounts audited under sub-section (2A) of section 142 and ending on the day on which the assessee is required to furnish a report of such audit under that sub- section; or (iii) the time taken in reopening the whole or any part of the proceeding or in giving an opportunity to the assessee of being re-heard under the proviso to section 129; or (iv) in a case where an application made before the Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the commissioner under sub- section (2) of that section; or (V) the period commencing from the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of section 245Q and ending with the date on which the order rejecting the application is received by the Commissioner under sub-section (3) of section 245R; or (vi) the period commencing from the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of section 245Q and ending with the Page | 28 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia date on which the advance ruling pronounced by it is received by the Commissioner under sub-section (7) of section 245R; or (vii) the period commencing from the date of annulment of a proceeding or order of assessment or reassessment referred to in sub-section (2) of section 153A till the date of the receipt of the order setting aside the order of such annulment, by the Commissioner; or (viii) the period commencing from the date on which a reference for exchange of information is made by an authority competent under an agreement referred to in section 90 or section 90A and ending with the date on which the information so requested is received by the Commissioner or a period of six months, whichever is less, shall be excluded : Provided that where immediately after the exclusion of the aforesaid period, the period of limitation referred to in clause (a) or clause (b) of this sub-section available to the Assessing Officer for making an order of assessment or reassessment, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly. (2) The authorization referred to in clause (a) and clause (b) of sub-section (1) shall be deemed to have been executed,— (a ) in the case of search, on the conclusion of search as recorded in the last Panchnama drawn in relation to any person in whose case the warrant of authorization has been issued; (b) in the case of requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the Authorized Officer. Clause (viii) of the explanation (above) was amended vide finance act 2012 as under: In clause (viii) for the words \"six months\" the words \"one year\" shall be substituted with effect from the 1st Day of July 2012. 6.9Amendment Made by Finance Bill 2012 - Moreover Memorandum explaining the changes in the Income Tax Act 1961 vide Finance Bill 2012 wherein at Clauses 63, 65 the changes relevant to extension of time limit for completion of assessment where information is sought under DTAA is explained as under: \"The time limit for completion of an assessment provided in the section 153 and 153B of the Income-tax Act. These provisions were amended vide Finance Act, 2011 to exclude the time taken in obtaining information (from foreign tax authorities) from the time prescribed for completion of assessment or reassessment in the case of an assesses. This time period to be excluded would start from the date on which the process of getting information is initiated by making a reference by the competent authority in India to the foreign tax authorities and end with the date on which information is received by the Commissioner. Currently, this period of exclusion is limited to six months. Foreign inquiries generally by nature take longer time for obtaining information. It is, therefore, proposed that this time limit of six months be extended to one year. These amendments will take effect from the 1st day of July, 2012. Clauses 63, 65\" 6.10 The Hon'ble Supreme Court in the case of Commissioner of Income tax Vs Vatika Township P Ltd (2014) 367 ITR 466 had held that, for the proposition that of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have retrospective operation. The idea behind rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. 6.11 From the above it may be mentioned that, when the legislature thought it fit to make amendment in section 153B of the Act relating to time limit of assessment under section Page | 29 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 153A of the Act, retrospective, from a particular date, it provided that such retrospectivity would relate to cases where the search is initiated or books of accounts, documents or other assets are requisitioned from such date, Thus, even the legislature has considered the initiation of search or making of requisition as the trigger point for applying the provisions of section 153B of the Act to assessment under section 153A of the Act. Thus, when the amended provisions of section 153B of the Act have been brought into force with effect from 01.07.2012, it has to be construed that such amended provisions would apply to a search initiated under section 132 or in relation to books of account, other documents or any assets requisitioned under section 132A of the Act, after 30.06.2012. Therefore, in relation to searches carried out till 30.6.2012, it was not permissible for the AO to assume jurisdiction under section 153B of the Act, as amended with effect from 01.07.2012. 6.12 The Hon'ble Supreme Court in the case of National Agricultural Cooperative Marketing Federation of India Ltd. and another Vs. Union of India and Others 260 ITR 548 has categorically held that what was impermissible in law because of bar of limitation would not become permissible on account of amendment, unless the amendment expressly extend the period of limitation. 6.13 Thus it is to be noted that period of \"One Year\" as amended by finance act 2012 is applicable from 1st day of July 2012, it applies to all those search cases where the search has commenced after the 1st day of July 2012 as per the ratio laid down by Hon'ble Gujarat High court in the case of Anilkumar Gopikishan Agrawal VS Assistant Commissioner of Income Tax 418 ITR 25 (Gujarat) 106 taxmann.com 137. As mentioned above search in the case of appellant had commenced on 8thSeptember 2011 and the date of conclusion is 15.09.2011 which is much prior to the effective date of the amendment i.e. 01.07.2012. .therefore, the earlier provision of amendment to section by Finance Act will would be applicable. In the case of Anilkumar Gopikishan Agrawal VS Assistant Commissioner of Income Tax 418 ITR 25 (Gujarat) 106 taxmann.com 137 Gujarat High Court has laid down the ratio that \"the statutory provisions as existing on the date of the search would be applicable\" 6. 14 Further it has been noticed that the same ratio has been laid down by Hon. ITAT Ahmedabad in the Case of Shri Devendra Rasiklal Shah in ITA No 2027/Ahd/2015 where by the ratio laid by Mumbai High Court in the case of CIT V/s Bhaja Print(2014) 265CTR Mumbai 124 has been followed whereby it has been held that \"This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 201 2. The Parliament has not given retrospective effect to the amendment applies. From the above, it is noticed that the time limit for completion of assessment under section 153A is prescribed under section 153B. Accordingly the normal time limit provided for completion of assessment in appellant's case is a period of Two Years from the end of the financial year in which the last authorization was executed and accordingly the relevant financial year would end on 31st March 2012 and the period of limitation for completion of assessment would end on 31st March 2014. 6.15 As per the information available during the appeal Proceedings, a reference to competent authority was made for exchange of information on 02.01.2013 as confirmed by FT & TR division vide their letter to Pr. CIT (Central). Accordingly, as per Explanation (viii) to the Section 153B the limitation for completion of the assessment shall be deemed to be excluded for a period of Six Months i.e. Period commencing from the date on which a reference for exchange of information is made ending with the date on which the information so requested is received by the Commissioner or a period of six months, whichever is less, shall be excluded. Since no information in this case has been received by the Pr. CIT, the upper limit of six months exclusion would be available to the AO for completion of assessment. 6.16 The above situation is once again reiterated as under: - Financial Year: 2005-06 - Assessment Year: 2006-07 - Return of income under section 153 A: 18.10.2013 Page | 30 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia - Date of Reference to Competent Authority:21.02.2013 - Period of extension from the date of reference (Six Months) to end on 20.08.2013 - Due Date of completion of assessment: 31 March 2014. - Time available after the date of extension from 21.08.2013 to 31.03.2014 = 212 days In such a case the assessment order was to be passed by 31 March 2014 as the period available after the period of extension from the date of reference to competent authority is 212 days in view of proviso to Explanation of Section of 153 B of IT Act. However, in the instant case the assessment was completed on 17th February, 2015 which was beyond the statuary time limit as-noted above. 6.17 Further Provided in Section 153B that where immediately after the exclusion of the aforesaid period, the period of limitation referred to in clause (a) or clause (b) of this sub- section available to the Assessing Officer for making an order of assessment or reassessment, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly. Now in the case six months period to be excluded begins on 21.02.2013 and ends on 20.08.2013.This period falls well before the period of limitation which ends on 31.03.2014. Therefore, the Period of Limitation would be 31.03.2014. The last date for completion of the assessment as per the provisions of section 153B was 31.03.2014. The period of six months for which the extension would have been available to the AO expired before this date and therefore there is no question of automatic extension of time. In view of the above, the assessment completed by the AO on 17th February -2015 was way beyond due date i.e. 31.03.2014 for completion of assessment proceedings for AY 2007-08. 6.18 WITHOUT PREJUDICE TO THE ABOVE even assuming without granting that the period to be excluded while calculating the period of limitation available to the AO is a period of One Year (Not as per the amendment made by Finance ACT 2011 but held by AO), the following picture emerges: - Financial Year: 2006-07 - Assessment Year: 2007-08 - Return of income under section 153 A: 27.07.2012 - Date of Reference to Competent Authority: 21.02.2013 - Period of extension from the date of reference (One Year) to end on 20.02.2014 - Normal Due Date of completion of assessment:31 March 2014 - Time available after the date of extension from 21.02.2014 to 31.03.2014= 38 days In such a case the assessment order would have been to be passed by 22nd April, 2014 as the period available after the period of extension from the date of reference to competent authority was less than 60 days and hence in view of proviso to Explanation 153 B of IT Act the AO would have the 60 days time to complete the assessment which expired on 22.04.2014. In this case also the assessment completed on 15.02.2015 is far later than the limitation date of 22.04.2014. 6.19 To summarize the issue, it is noticed that as per Explanation (viii) to section 153B, the period to be excluded begins from the date of reference made, till the date of Six Months (or one year as per AO) or the receipt of the information whichever is earlier. Since, in the instant case on reference no information has been received from foreign authorities even till date, therefore the maximum available time would be six months (or one year as per AO). Accordingly if the above period of reference is excluded, then the following picture emerges: 1. If period of six months is considered then the period to be excluded would be from 21.02.2013 and till 20.08.2013. Thus, period of 212 days were available (from 21.08.2013 to 31.03.2014). As per the proviso to the explanation (viii) to section 153 B which states that if the period available to the AO is less than 60 days for the purpose of limitation then the period available would get extended to 60 days or deemed to be extended accordingly. Page | 31 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Thus no benefit of 60 days period as per the said proviso would be available to the AO for completion of the assessment as it was already having 212 days left with him for completion of assessment till 31.03.2014. OR 2. If period of One Year is considered then the period to be excluded would be from 21.02.2013 till 20.02.2014. Thus period of 38 days were available (from 21.02.2014 to 31.03.2014). As per the proviso to the explanation (viii) which states that if the period available to the AO is less than 60 days for the purpose of limitation then the period available would get extended to 60 day. or deemed to be extended accordingly. In this case, the time available with the AO was 38 days and hence taking the benefit of 60 days period as per the said proviso further time of 22 days would be available to the AO for completion of the assessment and the date of limitation would be 22.04.2014. In the first situation, the limitation expired on 31st March 2014. Accordingly, the benefit of the said proviso was not available to the assessing officer and the assessment order passed after the statutory time line i.e. 31.03.2014 is barred by limitation and thus making assessment void ab-initio. In second situation as per the proviso to explanation of Section 153B(1) the limitation expires on 21.04.2014. Even in this situation also assessment completed on 17.02.2015 is much beyond the aforesaid date. 6.20 Now with regard to question no. 2, whether the exclusion time of six months (or one year as per AO) for completion of the assessment would start from the date of reference for exchange of information i.e. 21.02.2013 or from time barring date of assessment i.e. 31.03.2014. It may be pointed out that the interpretation of the AO regarding the extension of the period beyond the date of limitation i.e. 31st March 2014 by adding a period of one-more year and extending the limitation up to 31st March 2015 is not in line with the harmonious interpretation of the provisions of section 153B. If the same is considered, then it would lead to the Proviso appended to the Explanation of Section 153 B redundant and infructuous as under no circumstances the period of sixty days mentioned in the said proviso would become applicable due to availability of extended period of one year from the normal time barring date as per Section 153 B(a) or (b) of IT Act. Similarly, if the exclusion period of six months is counted from the date of limitation of assessment i.e. 31.03.2014 then also the limitation expires on 30.09.2014 while the assessment in the case has been completed on 17.02.2015 which is much beyond the limitation date hence, assessment became barred by limitation. Moreover, the proviso to explanation of Section 153 B for availability of 60 more days' time for completing the assessment would become infructuous and redundant as under no circumstances the period of sixty days mentioned in the said proviso would become applicable due to availability of extended period of six months from the normal time barring date as per Section 153 B(a) or (b) of IT Act. Thus, the working / counting of the limitation date for exclusion period (six months or one year) in view of Explanation (viii) of Section 153 B from the time barring date i.e. 31.03.2014 is not in consonance with the provisions of law as in that case the proviso to Explanation would become redundant / non workable and thus the same would not be in accordance with the provisions of law as intended by the legislature. The relevancy/applicability of the said proviso to explanation has been emphasized by the Hon'ble Delhi High Court in the case of CIT Vs. U Like Promoters Pvt Ltd. in ITA No.1528/2010, 1529/2010, 1530/2010 and 1532/2010 dated 24.01.2005. For ready reference the observations of the Hon'ble Court are reproduced as under: “16. It is not possible to agree with the contention of the contention of the respondent assessee. The following dates, which have been stated above, may again be noted:- (i) Date of limitation for completing assessment under section 153A in normal course was 31st March, 2006. Page | 32 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia (ii) On 22nd March, 2006 an order under section 142 (2A) was passed. (iii) On 31st March, 2006, the assessment proceedings were stayed by an interim order in W.P. (C)No. 4954/2006. (iv) On 18th December, 2006, the stay order was vacated with liberty to the Revenue to issue a fresh notice and after considering the reply, pass an order under Section 142(2A). (v) On 19th January, 2007, an order under Section 142(2A) was passed (the special audit was to be completed within 105 days, i.e., by 4th May, 2007). (vi) On 29th June, 2007, the assessment order was passed. 17. From the aforesaid dates, it is clear that as per the proviso to Explanation to Section 153B, the assessment order could have been passed on or before 3rd July, 2007, i.e., period of 60 days after the special audit report was to be submitted to the Assessing Officer. 18. The proviso quoted above has an object and purpose. It stipulates that the Assessing Officer should have a minimum period of 60 days to complete the assessment, in case after exclusion of period under the Explanation, the period for completing the assessment is less than 60 days. Every time this situation occurs, the proviso comes into play and has to be applied. The proviso can come into operation on one, two or more occasions in the same assessment/reassessment proceedings. In the present case, the respondent assesses had filed a writ petition. Because of the stay order passed, the period during which the stay order was in operation in the High Court has to be excluded. Thereafter, the Assessing Officer passed an order under Section 142(2 A) of the Act and the period for conducting special audit has to be excluded. The proviso to Explanation stipulates that the Assessing Officer can pass the assessment order within 60 days, if after excluding the time mentioned in the Explanation, the time for completing the assessment is less than 60 days. In terms of the said proviso, the Assessing Officer had the extended period to complete the assessment proceedings. The Assessing Officer had to complete the assessment within 60 days from the date on which the special audit report was to be submitted to him.\" In view of the above discussion, there had been the breach of the period of limitation while passing the assessment order as the assessment has not been completed within the statutory time limit i.e. upto 31.03.2014 but completed on 17.02.2015 which was much later to the statutory time limits u/s.153 of IT Act. Thus, the assessment is quashed. In view of the above Ground of Appeal raised by the appellant is Allowed.\" 34.In view of the above facts, the ld CIT(A) held that there had been the breach of period of limitation while passing the assessment order as the assessment has not been completed within the specific time limit i.e. upto 31.03.14 but completed on 17.02.2015, which was much later to the statutory time limits of u/s.153 of I.T. Act. Thus, the assessment order was quashed by CIT(A). 35.During the appellate proceedings, the assessee has raised an additional ground of appeal before the Ld. CIT(A), stating that the protective addition of Rs. 26,33,23,482/-, was made in the return of income of the Page | 33 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia assessee, despite the fact that the original assessment made, was not pending, at that time of search. Secondly no addition of Rs. 26,33,23,482/- could have been made, in absence of any incrimination material found in the course of search. Such additional grounds of the assessee were admitted by the Ld. CIT(A), vide page no. 19 of the order of the Ld. CIT(A). After admitting the additional ground of assessee, the Ld. CIT(A) called a remand report from the Assessing Officer. In response, the Assessing Officer submitted his remand report before the Ld. CIT(A), vide remand report dated 10/09/2020, which is reproduced by the Ld. CIT(A), in para-No. 5.4 and page No. 19 to 20 of the appellate order. The copy of the remand report of the Assessing Officer was provided to the assessee by the Ld. CIT(A), vide letter of CIT(A) dated 16/09/2020 calling for the comments of the assessee. In response, the assessee submitted rejoinder before the Ld. CIT(A), which is reproduced by the Ld. CIT(A), in his order, vide para 5.5 and page No. 21 to page No. 31 of the Appellate order. The Ld. CIT(A) also noted, vide para No.5.6 of the order of ld CIT(A), that while filing returns of income, in response to notice under section 153A of the Act, for assessment years 2006-07 and 2011-12, the assessee has made a note stating that, since no specific incriminating material or document was found, therefore, the complete assessment could not be distributed. The Ld. CIT(A), after the taking into account, the assessee`s submission, on additional ground, and taking into account remand report of the assessing officer and rejoinder of the assessee, had adjudicated the issued as under. “From the above it is apparent that the appellant has raised the issue of absence of incriminating documents found during the course of search and Page | 34 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia contended that the already completed assessment could not be disturbed as per the judicial pronouncements. However, in the assessment completed the AO has not made any observations on the aforesaid note annexed with the return of income filed, neither he has rebutted the above contention of the appellant in the assessment order. Thus it is a fact that there was no incriminating documents/material found during the course of search. Thus this fact was already on record of AO besides written submissions filed in the assessment proceedings. Hence it was well deserved to admit the additional ground of appeal on the above issue as taken by the appellant in the present appellate proceedings. 5.7 Having considered the additional grounds of appeal filed, remand report of the AO and rejoinder filed by the appellant the issue involved has been carefully gone through and it is noticed that the additional ground of appeal is technical in nature and has synergies with the facts of the case and other grounds of appeal noticed that the additional grounds of appeal is legal in nature and goes into roots of the matter and all the facts are already on record. Moreover, the AO remand report dated 10.09. 2020 has not objected for admission of additional ground of appeal obviously due to merits in admission of the said additional ground of appeal on the facts of the case Therefore following the principle of natural justice the same as admitted considering various judicial pronouncements noted hereunder. (i) Himachal Gramin Bank Vs. DCIT [2008] 305 ITR 163 (HP High Court) (ii) CIT Vs. Smt. Madhu Patni [2009] 18 DTR 110 (Kerala High Court) (iii) CIT Vs. Vadilal Industries Ltd. (2008) 217 CTR 318 (Gujarat HC) (iv) ITO Vs. XS Cad India Pvt. Ltd. [2015] 61 Taxmann.com 82 (v) National Thermal Power Corporation 229 ITR 383 (Supreme Court) (vi) CIT Vs. B. Hill & Co. (P) Ltd. (1983) 142 ITR 185(Allahabad H.C) Having admitted the additional ground of appeal raised by the appellant in the present appellate proceedings, the same is decided as unsder: 5.8. The brief facts and background of the case as seen from the assessment order are that search took place at the residential & business premises of the assessee and his brother Shri Rajesh G Patel on 08.09.2011. Prohibitory order was placed at the cupboard of the son of Shri Rajesh Patel as on the date of search. Subsequently, prohibitory order placed was revoked on 15.09.2011 when Shri Rajesh Patel was first confronted with Code Profile Client No 5095020378 of HSBC along with other pages while recording statement u/s 132(4) of the Act. As per question No 485 of that statement, ADIT asked Shri Rajesh Patel to explain content of those pages. In reply Shri Rajesh Patel submitted that he is not in a position to recall anything about impugned transactions. However, keeping in mind the unrecorded transactions or investments of family members, groups or business concerns, companies etc. found if any, then to cover up the same, voluntary disclosure of Rs.39.60 crores on ad-hoc Page | 35 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia basis on behalf of family members, group concerns was made. Thereafter, the AO also referred to Shri Rajesh Patel's various statements recorded in post search investigation and during assessment proceedings wherein Shri Rajesh Patel repeatedly denied having done any such transactions. He simultaneously requested the ADIT / AO to provide the authentic data in respect of alleged unrecorded transactions. The assessee also denied signing the consent waiver form and requested to provide the authentic data from genuine sources Shri Rajesh Patel then, filed affidavit dated 21. 03. 2014 before the AO retracting the ad hoc disclosure of income which was made at the time of revocation of PO, stating that after verification of all the relevant data found from him and entire group, nothing more than Rs. 2 05 crores were required to be offered to tax. 5.9. The AO relying upon the information in his possession and the statement recorded u/s 132(4) of IT Act. where Shri Rajesh Patel voluntarily disclosed ad hoc income finally concluded that the assessee (brother of Shri Rajesh Patel) is having bank account with HSBC Geneva and had not disclosed the same to the Income tax Department. Therefore, she has worked out peak balance of USD from that account and after converting the same with exchange rate of INR made addition of Rs 26,33,23,482/- in the hands of assessee on protective basis in the year under consideration and Rs 4,32,13,779/- in AY 2007-08, since the names of all the three brothers stated to have been appearing in the impugned bank statement. 5.10 Further, the AR in the appellate proceedings, submitted copies of following judicial pronouncements and contended that similar legal issue as raised by the assessee has been favorably dealt with in detail by the hon'ble ITATS, gist of which is reproduced as under: “(1) Hon ble ITAT, Delhi Bench \"D\" Delhi in the case of Krishna Kumar Modi vs. ACIT in ITA Nos. 2892 to 2694/Dol/2017 wherein it has been held that 5.7 On thorough and serious consideration, we find substantial merit in the aforesaid contention of the Ld. Sr. Counsel that if at all the amount on the basis of the papers relied upon could only be taxed in year of search, when the said papers were, for the first time, confronted to the assessee. This is for the reason that the paper nowhere shows any amount being deposited in any of the assessment years beginning with assessment year 2006-07. Therefore, neither in assessment year 2006-07 nor in assessment year 2007-08, the two years in which additions have been made by the assessing officer, the assessee could be regarded as having made any investment and therefore, the provisions of section 69 of the IT Act cannot, in ow view, be applied in those assessment years. Further, the documents relied upon actually refer to creation of account in earlier assessment year, much prior to assessment year 2006-07. 5.8. Furthermore, assessments for assessment years 2006-07 and 2007-08 were undisputedly made under section 153A of the Act in respect of non- abated assessments in respect of non- abated assessments, the law laid down in CIT v. Singhad Technical Education Society 397 ITR 344 (SC) 395 ITR 526 (Del) CIT vs Kabul Chawla 234 Taxman 300 (Del) and other decisions of the jurisdictional High Court is that the addition should be made on the basis of any incriminating document Page | 36 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia found during the course of search. In MeetGutguita (supra), the High Court further held that statement recorded cannot be regarded as incriminating material found during search and cannot independently be the basis for making any addition, in the present case, there is no dispute that the papers relied upon by the assessing officer were not found during the course of search the residential premises of the assessee and therefore, strictly speaking, the said papers cannot be the basis for making any addition in assessment year 2006-07 and 2007-08. In fact, in identical circumstances, coordinate benches of the Tribunal in the case of Anurag Dalmia v. DCIT ITA 5395 of 2017, Bishwanath Grodia v. DCIT: 76 taxamnn.com 81 (Kol. Trib.) and Yamini Agarwal v. DCIT: 83 taxmann.com 81 (Kol. Trib.), relied upon by the assessee, deleted similar addition made in assessment completed section 153A r.w.s. 143(3) of the Act. Hot ble ITAT \"A Bench Mumbai in the case of DCIT vs Arunkumar Mehta ITA No. 2477/Mum/2018 Decision: 36. Therefore, the ld. CIT(A), after considering the findings of the assessment order, written submissions filed by assessee, the remand report, and rejoinder of the appellant on remand report and after considering the judgments of various courts, observed that the appellant in his statement recorded during the assessment, categorically admitted that whatever Shri Rajesh Govindlal Patel had deposed is also binding upon him, as well. Therefore, based upon the statement of the appellant, the AO made addition on substantive basis in the hands of Shri Rajesh Govindial Patel and protective addition in the case of these two assessee’s viz: Shri Rajnikant and Shri Rashmikant. The ld CIT(A) noticed that since the appeal for A. Y. 2006-07 & 2007-08 have been decided in the case of Shri Rajesh Govindlal Patel (group person) in appeal No CIT(A)-11/C C-1/11051 & 11052/2015-16, dated 28.10.2020 and being the identical issue involved in both cases, finding given in case of Shri Rajesh G Patel is equally applicable to the facts of the appellant's cases ( Shri Rajnikant and Shri Rashmikant) . The finding given in case of Shri Rajesh Govindlal Patel was reproduced by ld CIT(A), in his order, vide page No.34 to 76 of the appellate order, for the sake of brevity we do not reproduce, these findings in this order. In view Page | 37 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia of these facts, the ld. CIT (A) held that addition should not be made in the hands of other two assessees, (Shri Rajnikant and Shri Rashmikant), as there was no incriminating material and, in whose hands, only protective addition were made. Hence, ld CIT(A) deleted the addition in the hands of Shri Rajnikant and Shri Rashmikant. 37. The Ld. CIT(A) also held that since the substantive addition was made in the hands of Shri Rajesh G. Patel, which was deleted by ld CIT(A), hence, protective additions should not be made in the hands of the two assessees, viz: Shri Rajnikant and Shri Rashmikant. 38. We note that in the case of Shri Rajesh Govindlal Patel, vide Tribunal order dated 12th April 2023, in ITA Nos.25 and 26 and CO. No.1 and 2, the Tribunal has deleted the substantive addition by taking into account findings of Ld. CIT(A), and observing as follows: 6.1. We have carefully considered the submissions of the rival parties and granted time to the Ld DR to submit his written arguments within 15 days of the conclusion of the hearings of the appeals. Since the question of getting the details of foreign bank account from CBDT/Investigation Wing after a period of 10 years is not justifiable. Further the Administrative Commissioner namely PCIT, Central has filed the present appeals for the Revenue, it is the very same office who had sought for information from the Under Secretary [FT& TR- III][2] and no information received before completion of assessment by the assessing officer. It is further stated in the Written/Reply Arguments that the assessee gathered information after inspecting the departmental records that the Ld CIT[A], Ahmedabad before finalizing the appellate orders, had once again called for a report from the AO, as to whether any information was received from the CBDT [FT&TR], post assessment order. Since the reply of the AO was not in affirmative, the Ld CIT[A] proceeded to finalize the appeals. Therefore the Ld CIT DR's request is reject and however directed to submit his Written Arguments within 15 days of completion of the hearings. 6.2. Thus the Ld CIT DR submitted his Notes on Arguments by email on 14-02-2023 the same is reproduced as follows: \"Note on arguments by CIT DR in the case of Shri Rajeshkumar G. Patel, ITA Number 25/RJT/2021- AY 2006-07; ITA Number 25/RJT/2021 Brief facts of the case: Page | 38 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 1. Information was available with the Income tax department about foreign bank account held by Shri Rajeshkumar G. Patel in HSBC, Geneva when an action of Search and Seizure u/s 132 of the IT Act was conducted in the premises of the assessee on 08.09.2011. 2. During the course of S&S proceedings, information available with the department (Page 18,19 of assessment order for AY 2006-07) including other documents were confronted to the assessee and he was required under oath u/s 132(4) of the IT Act, to give statement. 3. In the course of statement, when confronted with the documents detailing Bank account in HSBC wherein details of Rajeshkumar G Patel, address, etc. were mentioned, the assessee while stating that he was not able to recall the specifics, also made a voluntary disclosure of an amount of Rs. 39.60 Crores and informed that he has informed accordingly by a letter to the Addl. Director (Investigation). Thereafter, in the subsequent question he was informed about the value of holding in bank account whereupon Shri Patel stated that his disclosure covers the amount of investment in foreign bank account. 4. Thereafter, after 29 months of such admission, Shri Rajeshkumar G Patel filed a statement of retraction of his disclosure to Department. The amount was also not shown in his return of income filed in response to Sec. 153A notice. 5. Ld. AO in her assessment order has corroborated the 'admission' of Shri Rajeshkumar G Patel with independent corroborative evidences. The assessment order also discusses the reasons advanced by the assessee regarding his retraction. It mentions that the assessee has been demanding certified copies of documents from authorities/banks from the department. 6. During the course of assessment, after retraction, the assessee was required to provide a 'consent waiver', as per procedure, to enable the department to proceed ahead with independent enquires. It mentions that the assessee has refused to provide even the consent waiver. 7. Thereafter, on the strength of the findings in the Search, especially the 'admission' by the assessee when confronted with the details of Bank-deposit in HSBC, Geneva and other corroborating and circumstances indicating that the amount 'held' by assessee has not been disclosed in the Return of Income for AY 2006-07 and AY 2007- 08, added the amount of deposits (converted into Indian rupees), the ld. AO added the undisclosed amount to taxable income of the assessee, in respective years. 8. Ld. CIT (A) deleted the addition on technical/legal grounds without going into the merits of the case, quashing the assessment order for breach of time limits, and also, holding that no incriminating documents were found/seized during the course of Search and seizure action. 9. The Department is in appeal before Hon'ble ITAT on multiple grounds of appeal. Hearing on 02.02.2023: Page | 39 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 10. The CIT-DR invited the attention of Hon. ITAT on the applicability of the provisions of Evidence Act on the 'admission' by the assessee, in response to the specific querry confronting documents pertaining to the investment in the Foreign HSBC-Geneva bank accounts held by the assessee. a. Applicability of provisions of evidence Act proceedings under the I.T.Act: In the case of Chuharmal vs. CIT (1988) 70 CTR(SC) 88/172 ITR 250(SC), hon'ble Apex court has held that \"salutory principle of common law embedded in section 110 of the Evidence Act could be applied to the taxation provisions.\" Following is an extract from the order of :- \"para.2...................there the contention was raised that the provisions in sec.110 of the Evidence Act where a person was found in possession of anything, the onus of proving that he was not the owner was on the person who affirmed that he was not the owner, was incorrect and inapplicable to taxation proceedings. This contention was rejected. The High Court of Bombay held that what was meant by saying that the Evidence Act did not apply to the proceedings under the Act was that the rigour of the rules of evidence contained in the Evidence Act was not applicable but that did not mean that when the taxing authorities were desirous of invoking the principles of the Act in proceedings before them, they were prevented from doing so. Secondly, all that s. 110 of the Evidence Act does is that it embodies a salutary principle of common law jurisprudence which could be attracted to a set of circumstances that satisfy its conditions. 3. We are of the opinion that this is a correct approach...........\" b. Importance of \"Admission\" in Evidence Act- The admission by the assessee made further enquiries to estop. Also, the assessment order has discussed corroborative evidences and circumstances linked with the admission of the assessee. Section 17:-Admission defined: 'An admission is a statement, oral or documentary or contained in electronic form which suggests any inference as to any fact, any issue or relevant fact, and which is made by any of the person, and not the circumstances herein after mentioned. One such persons mentioned in Section 18(1) is \" by party interested in subject matter\"-which is defined as- Persons who have any property or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested. Sec.31 admission not conclusive prove but may estop:- Admissions are not conclusively proof of the matter admitted but they may operate as a stoppage under the provisions hereinafter contained. 11. Thereafter kind attention of Hon'ble ITAT was brought towards the fact that despite being on 'oath', the assessee has given affidavit wherein he has retracted his disclosure. (the affidavit is not on record and is Hon. ITAT may require the assessee to provide a copy of Affidavit filed before AO). Thereafter arguments were made on \"perjury\" and that perjury, even by filing an affidavit has been held as contempt of court in various decision of Hon'ble Supreme Court: Page | 40 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia a. Perjury: The simple definition of 'perjury' is giving/ furnishing/ submitting intentionally false evidence by the person when he is bound by law to state the truth or give/submit/furnish true evidence in the Court of Law. In addition to the offense of perjury, when if false evidence or oral testimony is submitted in the Court proceedings under oath, the contempt of Court is also committed. The definition of 'Criminal contempt of Contempt' within the meaning of section 2 of the Contempt of the Court Act 1971, includes \"the doing of any act which interferes with obstructs or tends to obstruct the administration of justice in any manner\". Making of false statement of oath may interfere with the admission of justice and may thus amount to contempt of Court. The offence of perjury, done by stating false testimony or furnishing false evidence by a person or oath, can be done by stating wrong or incorrect or suppressed information in the affidavit submitted in the Court proceedings. The main ingredient of the offence is 'intentional or voluntary' act of falsely testifying, submitting or furnishing fake evidence or suppressing information in the Court proceedings. In the case of Re-Suo-motto proceedings (2001) AIR 2001 SC 2204, 2001 CriLJ 2611, 2001 (4) SCALE 199, (2001) 5 SCC 289, 2001 3 SCR 750, the Apex Court has made following observations on perjury: 1. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts.if the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations. 2. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy. 3. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. Hon. Karnataka High Court, in a writ petition, WRIT PETITION NO.19448 OF 2015 (GM-FC), in the matter of Dr.Pravin R and Dr.Arpitha, has held that consideration of complaints regarding perjury should not be deferred or delayed by the Courts. In this case proceedings, the respondent wife had submitted an affidavit which was found to be false on fact. In this case the High Court of Karnataka remanded the matter back to Lower Court for initiating perjury proceedings. Hon. Court has held as follows: Page | 41 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia The tone for this judgment may be set by what Shakespeare said in Richard III about perjury; the relevant stanza runs as under: \"My conscience hath a thousand several tongues, And every tongue brings in a several tale, and ever tale condemns me for a villain. Perjury, Perjury in the highest degree; Murther, in the direst degree; All several sins, all used in each degree. throng to the bar, crying all \"Guilty, guilty!.\" The following anguish expressed by the Hon'ble Supreme Court in Swarna Singh vs. State of Punjab (2000) 5 SCC 668 about rampant perjury in courts merit a mention: \"Perjury has also become a way of life in the Law Courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him...\" \"....act of perjury is treated as a heinous offence in all civilized societies; consideration of complaints with regard to the same cannot be deferred or delayed; otherwise there is all possibility of the fountain of justice being polluted.\" IN the case of Sejalben Tejasbhai Chovatia vs. State of Gujarat (Special Criminal Application) (Quashing) 7666 of 2016 the Hon'ble High court has Gujarat has ruled similarly. b. Perjury is also a criminal contempt of Court (i) In the case of Murray & Company Vs Ashok Kumar Nevatia, (2000) SCC 367, AIR 2000 SC 833, the Hon'ble Supreme Court has held that a false statement deliberately made in an affidavit before the Court amounted to contempt of Court. (ii) Hon'ble Supreme Court has held in the matter of MC Mehta Vs Union of India (2003) 5 SCC 376, AIR 2003 SC 3469, that filing a false statement or false affidavit is contempt of Court. (iii) Similarly, in the case of UP Residents Employees Cooperative House Buildings Society Vs Noida (2004) 9 SCC 670/AIR 2003 SC 2723 it was held that filing of false affidavit amounts to contempt of Court. c. In the case of Perumal Vs Janki on 20 January, 2014 by Hon'ble Supreme Court of India in criminal appeal number 169 of 2014, following has been observed: 16. The offence under section 193[1] IPC is an act of giving false evidence or fabricating false evidence in a judicial proceeding. The act of giving false evidence is defined under section 191 IPC as follows: \"191. Giving false evidence.-- Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise. Page | 42 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.\" It can be seen from the definition that to constitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does not believe to be true. Further, it requires that such a statement is made by a person (1) who is legally bound by an oath; (2) by an express provision of law to state the truth; or (3) being bound by law to make a declaration upon any subject. \"........there is no rule of law that common sense should be put in cold storage' 12. It was argued as to how the case in hand is different from case like Saumya Construction (Gujarat HC); Kabul Chawla (Delhi HC) by pointing out that that the assessment order has a direct connection with the findings of Search and seizure action. The view taken by ld. CIT (A) is a very narrow view, wherein he has harped on the requirement of document found or seized during the Search and Seizure proceedings. However, the intent of judicial interpretation has been to see a perceptible link between the Search and Seizure proceedings and the additions in assessment order. In this case the link is established by the 'admission' in the statement, the confrontation of the information available with the department to the assessee leading to voluntary disclosure by the assessee of Rs. 39.60 Crores. It was further argued that the disclosure is not 1 Crores or 100 Crores, or even a round figure. A disclosure like 39.60 is a well thought of figure. The disclosure vide letter to Additional Director; and in response to the confrontation of an information about the foreign bank deposit of the assessee, is a material fact and is directly borne out of 'search and seizure proceedings', unlike the cited cases by ld. AR and the cases relied upon by Ld. CIT (A) while deciding the legal-issue. It is requested that further time may be given for arguments. 13. Due to paucity of time, rebuttal arguments have not been completely made. Ld. AR has pointed out several cases, repeatedly stating that the facts of its case are similar to the cited case. However, time is required to rebut the case laws relied upon by the Ld. AR. This was requested to Hon. Tribunal during the course of hearing also. 14. Further, during the hearing a case decided by Hon. ITAT Mumbai was mentioned by Honourable Member wherein there has been a ruling on refusal by the assessee to sign consent-waiver. This case was momentarily displayed on screen in between the arguments. Revenue has had no occasion to study and advance arguments based on this case. 15. Kind attention of Hon. ITAT is invited to the ratio of decision by Hon. Delhi High Court in the case of Jansampark Advertising (56 taxmann.com 286) wherein the following has been held: \"Assessment proceedings under the Income Tax Act are not a game of hide and seek. The inquiry in the wake of a notice under Section 148 is not an empty formality. It must be effective and with a sense of purpose. There is an elaborate procedure set out which Page | 43 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia requires scrupulous adherence and followed up on. In the hierarchy of the authorities, the AO is placed at the bottom rung. The two layers of appeals, before the matter engages the appellate jurisdiction of this court, are authorities vested with the jurisdiction, power and obligation to reach appropriate findings on facts. Noticeably, it is only the appeal to the High Court, under Section 260-A, which is restricted to consideration of \"substantial question of law\", if any arising. As would be seen from the discussion that follows, the obligation to make proper inquiry and reach finding on facts does not end with the AO. This obligation moves upwards to CIT (Appeals), and also ITAT, should it come to their notice that there has been default in such respect on the part of the AO. In such event, it is they who are duty bound to either themselves properly inquire or cause such inquiry to be completed.\" 16. The assessee has not refuted that the investment in Bank account belongs to him. Only the authenticity of the document is being doubted. I have requested for a time of 30 days for me to collect details from investigation wing and CBDT. Hon'ble ITAT has been pleased to provide only 15 days. It is humbly submitted that this is a case filed in the year 2021 and there appears no basis to hurry up the proceedings in department's appeal and brush aside the request by the CIT DR that time is needed to collect information and also to rebut the arguments by the Ld. AR. In the meantime, I have discussed these matters with officers in CBDT and have reliably learnt that the information regarding holding of investment by the assessee in the foreign banks (which were found to be not disclosed) were received through Government channels. Thus there remains no doubt on the authenticity of the documents based on which Search and Seizure actions were carried out and the assessee was confronted. I am trying to obtain a confirmation in this regard from CBDT/Investigation Wing. Since the matter is quite old, I humbly request you to provide a time of atleast 60 days, and also consider extension if circumstances so require and permit revenue to submit the factual details of chain of custody of information regarding foreign investment holding of the assessee. It is also requested to not to treat this case as 'heard' and provide sufficient time to the department to rebut the arguments and case laws submitted by ld. AR. It is further requested to make this submission a part of adjudication order.\" 6.3. The Ld AR submitted his Reply/Rejoinder Arguments on 01- 03-2023 and the same is reproduced as follows: \"Para wise comments on the reply submitted by the ld. CIT(DR) dated 14.2.2023 1. Kind reference is invited to submission dated 14.2.2023, forwarded by the Ld. CIT(DR). Para wise comments on the averments raised by the Ld. DR is rebutted as under. 2. The points raised in the covering letter dated 14.2.2023 are also forming part of the notes appended thereto and hence, no separate discussion about the averments made in the covering letter is being made. However, it is prayed that, the plea of the Ld. CIT(DR) seeking further time / adjournment of 60 days Page | 44 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia on the pretext that he needs to obtain information from the FT&TR (CBDT) Delhi is unsavoury because, such an exercise has already been carried out by the Pr. CIT (Central) Ahmedabad on 1.1.2013. This was confirmed by the Pr CIT(Cent) Ahmedabad, who had forwarded letter No 504/0300/2012- FTD- 1 dated 21.2.2013 received from the Under Secretary (FT&TR- III)(2) CBDT. (Kind reference invited to para 4 of the assessment order). As a matter of fact, Your Honours are humbly appraised that, it is for this reason only the assessment proceedings were extended. 3. It is further submitted that, as a matter of caution, the ld. CIT(A) Ahmedabad, before finalizing the appellate order, had once again called for a report from the AO, as to whether any information was received from the CBDT (FT&TR), post assessment order. Since the reply of the AO was not in affirmative, the ld. CIT(A) proceeded to finalize the appeal. The Respondent gathered this information from the departmental records for which inspection was sought. 4. Now that when the Ld. CIT(DR) chose to revisit this statutory exercise once again, the Respondent feels that this is nothing but dragging the matter to endless litigation, which is against the spirit of the decision of the Hon. Supreme Court in the case of Sun Engineering Works. Hence kind objection is raised to the adjournment sought of 60 days, just for the sake of revisiting the old exercise, and hence, may kindly be detested. 5. The Respondent is also of a strong belief that, it is beyond the jurisdiction of the Ld. CIT(DR) to revisit the work done by a senior officer of the same rank. 6. In light of the above, the Respondent proceeds to furnish para wise comments on the report / finding of the Ld. CIT(DR), as under. Para 1 (under the heading Brief facts of the case) 1. As per this para, the ld. CIT(DR) has held that, information was available with the income tax department about foreign bank account held by Shri Rajeshkumar G Patel in HSBC Geneva when an action of search and seizure u/s. 132 of the I T Act was conducted in the premises of the assessee on 8.9.2011. Reply 1.1 No comments. However, the Respondent desires the Hon. Members to take note of the fact that, only information was available with the department and not any evidence, much less incriminating evidence. Para 2 (under the heading Brief facts of the case) Reply 2. No comments. Para 3 (under the heading Brief facts of the case) As per this para, the ld. CIT(DR) has held that, in the statement recorded u/s. 132(4), when the Respondent was asked about the foreign bank account, the Respondent stated that he is unable to recall the specifics and he also made a voluntary disclosure of an amount of Rs 39.60 crores. Thereafter he was asked about the value of holding in bank account, whereupon the Respondent stated that his disclosure covers the amount of investment in foreign bank account. Reply 3.1 The above finding of the Ld. CIT(DR) is taken out of context. Here the most sacrosanct version is the assessment order. Kind attention is drawn to Page | 45 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia para 6 to 6.2 of the assessment order, which is an event that occurred right in front of the assessing officer. The AO, during the course of assessment proceedings had summoned the Respondent and recorded his statement. The relevant paras of the assessment order is reproduced hereunder. the above excerpts of the assessment order, it is clear that, the disclosure is totally unrelated to the alleged foreign bank account. Albeit, the purported disclosure was towards any errors and ommissions found from the Respondent, his family members and group concerns. Thus, the finding of the ld. CIT(DR) is taken out of context. 3.2 The Respondent further submits that, the AO, in the assessment order had also reproduced the statement of the Respondent recorded u/s. 132(4) by the Investigation Wing. While making this addition under compulsion, the AO had grossly played with the language used by the Respondent in his statement recorded u/s. 132(4). This is grossly unjust because, an income tax assessment order relies heavily on evidence (which is devoid here) and not on the construction of sentence in the statement recorded u/s. 132(4). The jugglery of language manipulated in the assessment order, is as under. 3.3 From the above it can be seen that, the finding recorded by the AO supra that \"what prompted him (Respondent)\", is nothing but a surmise. Nowhere in the assessment order, the AO has cited a single evidence in support of the finding that the Respondent had any foreign bank account. Para 4 (under the heading Brief facts of the case) As per this para, the ld. CIT(DR) has submitted that, after 29 months of such admission, Shri Rajesh Patel filed a statement of retraction of his disclosure to department. Reply 4.1 Unfortunately, here the Ld. CIT(DR) is totally silent about the numerous correspondences made by the Respondent to the Department, though however, he accedes in para 5 that, the Respondent had vehemently pleaded the department to furnish copies of the corroborative materials, so as to enable him to proceed in the matter. No such materials were given to the Respondent. This is the reason why it took so long to file retraction affidavit. Interestingly, in para 5 of the letter of the ld. CIT(DR) affirms this fact. Further, Hon'ble Members may please appreciate that, this is not a retraction but rather a clarification. 5. As per this para, the ld. CIT(DR) has submitted that, the ld. AO in her assessment order has corroborated the 'admission' of Shri Rajeshkumar G Patel with independent corroborative evidences. Reply 5.1 This finding is grossly untrue. Nowhere in the assessment order the AO has corroborated the admission of the Respondent with independent corroborative evidences. This is because, no such corroborative evidences (about foreign bank account) was found during search. Rather, it never existed. If there is a single corroborative evidence in this regard, then the ld. CIT(DR) ought to have unfolded this fact by referring to specific instance (from the assessment order). Thus, this is just a passing remark without substance. 6. As per this para, the ld. CIT(DR) has held that, the Respondent refused to provide the consent waiver form. Page | 46 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Reply 6.1 In this connection the Respondent humbly submits that, the Investigation wing was carrying unauthenticated information about some foreign bank accounts, retrieved from some media reports. All throughout the proceedings, the Respondent sought authentic information/ data / documents from the Department. The very fact that the information available with the department was not authentic, is the reason why search took place, as they wanted to confirm this unauthentic information with some corroborating material (to be hopefully found from the possession of the Respondent). The only requirement / plea of the Respondent was that, he may be given copy of any document to prove the allegation. This amply proves that the 'satisfaction note' of the Investigation Wing was also on a wrong footing as they came only for roving inquiry. 7. No comments. 8. As per this para, the ld. CIT(DR) has submitted that, the CIT(A) deleted the addition on technical and legal founds without going into the merits of the case. Reply 8.1 This is taken contextually. The order of the ld. CIT(A) covers the entire facets of the case. He also called for remand report from the AO. The allegation that the ld. CIT(A) did not go into the merits of the case, is perplexing because, in the absence of any material, there is no merits in the case. 9. No comments 10. Under this para, the ld. DR has relied upon the Evidence Act. Reply 10.1 The Respondent prays that, before citing the definition of evidence as per the Indian Evidence Act, it is prayed that the definition of 'evidence' should be read together with the definition of 'proved' and the merged result of these two definitions are to be considered for ascertaining a fact to be evident to the case. According to Section 3 of the Evidence Act 1872, evidence means and includes:  All such statements which the court allows or needs to be presented before it by the witnesses in connection to matters of fact under inquiry. These statements are termed as oral evidence.  All such documents including any electronics record, presented before the court for inspection. These documents are termed as documentary evidence. 10.2 Documentary evidence is the evidence that mentions any issue described or expressed upon any material by way of letters, figures or marks or by more than one of the ways which can be used for recording the issue. Primary documentary evidence includes the evidence that shows the original documents as mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence is the evidence that includes copies of documents that can be presented in the court under certain circumstances or as mentioned in Section 63 and Section 65 of the Indian Evidence Act. Direct Evidence is acknowledged as the most important evidence required for deciding the matter in issue. Direct evidence directly proves a fact or disapproves of the fact by its Page | 47 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia virtue. In the case of direct evidence, a particular fact is accepted directly without giving any reason to relate to the fact. One does not even need to point out the illustration provided as the evidence given by the witness in the court of law is the direct evidence which is sufficient enough to prove the matter as against the testimony to a fact proposing guilt. Here in the case of the Respondent, there is no direct evidence (as otherwise, the AO would have made it a part of the assessment order). In order to establish admission of evidence, the following facts should be consistent with the theory.  The circumstances from which the inference for the theory was drawn, should be fully established.  The circumstances should be of a decisive nature.  The circumstances should serve to mean and prove only the theory proposed to be proved and should not entertain any other theory. 10.3. None of the above pre-requisites are fulfilled here. Hence, a mere unauthenticated document, can never constitute evidence. 11. Under this para, the ld. DR has relied upon the definition of the word perjury. Reply 11.1 The Respondent prays that, perjury is only applicable where there are false statements/ evidences. The Hon Members are humbly appraised that, the Department has also initiated prosecution proceedings. The only charge made in the prosecution filed by the department is failure to file return of income in time. Had there been alleged perjury, then obviously this too would have been the charge raised by the Department. This amply proves that, there is no perjury, as alleged. 12. Under this para, the ld. DR has alleged that the ld. CIT(A) has taken a narrow view wherein he has harped on the requirement of document found or seized during search and seizure proceedings. Reply 12.1 This allegation is grossly unacceptable because, the ld. CIT(A) has relied upon various judicial pronouncements passed by Hon. Judges of various High Courts. Not a single judgement has been passed by him. The ld. CIT(A) is duty bound to adhere to the decisions / precedents laid down by various Courts, especially the Hon. Gujarat High Court. The Respondent relies upon the following judgements in this regard. G.M Mittal Stainless Steel (P), CIT vs. - (2003) 179 CTR 553 = 263 ITR 255 = 130 Taxman 67 (Guj.) Binding nature - Jurisdictional High Court decision - Is binding on the Revenue authorities within the State. Revenue authorities within the State cannot refuse to follow the jurisdictional High Court's decision on the ground that the decision of some other High Court was pending disposal before the Supreme Court. Air Conditioning Specialists Pvt. Ltd. vs. Union of India & Ors. (1996)221 ITR 739 (Guj.) The Commissioner of Income Tax is a \"Tribunal\" subject to the supervisory jurisdiction of the High Court under Article 227 of the Constitution. Hence, he is bound to obey the law declared by the High Court. It is not open to the Commissioner of Income Tax to ignore the decision of the Page | 48 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia jurisdictional High Court or refuse to follow it on the ground that the verdict had not been accepted by the Department and that the matter was carried further and was pending before the Supreme Court. When a point is concluded by a decision of the Court, all subordinate courts and inferior Tribunals within the territory of the State and subject to the supervisory jurisdiction of the High Court are bound by it and must scrupulously follow the said decision in letter and spirit. In CIT vs. G. Dalabhai& Co - 226 ITR 922, the Hon'ble Gujarat High Court has remarked - \"Before parting with the case, we notice with anguish the language used by the Income Tax Officer in his assessment order saying that \"with due respect to the decision of the Gujarat High Court, I do not follow the same'. The Income Tax Officer in not following the decision of the Gujarat High Court within whose supervisory territory he was functioning, is far from satisfactory, that is the least we can say. The minimum decorum of the system of hierarchy that Tribunals in the administration of justice and their judicial subordination to the High Court of the territory in which they function requires that they restrain in the use of proper expression while following or not following the decision of the High Court. Bishnu Ram Borah and Another vs. Parag Saikia& Ors. AIR 1984 SC The board of Revenue any other subordinate tribunal is subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Article 142 of the Constitution, so should be the judgments and orders of the High Court by all inferior courts and Tribunals subject to their supervisory jurisdiction within the State under Arts. 226 and 227 of the Constitution. The Board of Revenue cannot refuse to carry out the directions of the High Court. (1961) 1 SCR 474, Foll. (Para 12) Jain Exports vs. UOI (1988) 3 SCC 579 lays down the principle that in a tier system, decision of higher authorities are binding on lower authorities and quasi- judicial Tribunals are also bound by this discipline. It has been observed by the Supreme Court in the case of Union of India vs. Kamalakshi Finance Corporation Ltd. AIR 1992 SC 711 that judicial discipline requires that decision of higher authority should to be followed in the case of quasi-judicial authority and, therefore, a lower officer is bound to follow the decision of the higher authority e.g. Assessing Officer is bound to follow the decision of the Tribunal particularly so in the case of the same assessee. This principle requires that decisions of higher authorities such as Tribunal should be followed by lower officers, viz., CIT(A) and Assessing Officer. Even decision of the Tribunal, not a jurisdictional Tribunal, is required to be followed by the lower authority. Sometimes, an argument is made and also put on record that the Department has not accepted the decision of the Tribunal and Appeal has been preferred to the High Court. However, courts have repeatedly held that phraseology of not accepting the decision is obnoxious and unparliamentary in respect of the order of the higher authority. Unless, in Appeal the order of the higher authority is stayed, it Page | 49 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia operates as a valid binding decision to the lower authority not only in the case of the same assessee but also in other cases where the same law point is involved. If the Statute is an All India Statute, decisions of benches of the Tribunal at various places are considered as binding on the law point decided on the principle of judicial discipline. The following are the observations of the Supreme Court from the decision in S l Rooplal& Another vs. L. G. of New Delhi (2000) SCC 644. (1) \"At the outset, we must express our serious dissatisfaction in regard to the manner in which a co-ordinate Bench of the Tribunal has overruled in effect, an earlier judgment of the same Tribunal. This is opposed to all principles of judicial discipline..... Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know for consistency in interpretation of law alone can lead to public confidence in our judicial system. (2) The decision of the special (large) Bench of the Tribunal must be held to be a binding precedent for division benches otherwise the very purpose of constituting them will get frustrated. This of course is subject to the exception that if there is a High Court decision on the same issue and not noticed by the Special Bench, then the High Court decision will receive preference as was done in ChandulalVenichand's case 38 ITD 138. 12.2 Hence, it would be unfair to hold that the ld. CIT(A) took a very narrow view, whereas the fact is that, the ld. CIT(A) only took a consistent stand as was taken by various High Courts. 13. Under this para, the ld. DR has sought time for rebutting case laws. This being the discretion of the Hon. Members, no opinion is formed. 14. Under this para, the ld. DR has sought time for rebutting case laws. This being the discretion of the Hon. Members, no opinion is formed. 15. Under this para, the ld. DR has submitted that the matter of assessment does not conclude with the AO, but it extends to the CIT(A) and ITAT. This being the discretion of the Hon. Members, no opinion is formed. 16. Under this paragraph, the ld. DR contends that he has clarified the matter with CBDT and gathered information that the information regarding holding of investment by the assessee in foreign bank were received through government channels. If that be the case, then why has the Board delayed the matter and why was no information shared so far. This being only hearsay, no credence may be attributed. Against, as discussed in the first part of this note, it is prayed that, the above pretext are only meant to drag litigation. It is thus prayed that, adjournment of 60 days is too much to collect authentic data from CBDT. Conclusion 17. In light of the above it is prayed that, the matter may be proceeded on the information available on record and kind justice may be given to the Respondent.\" Page | 50 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 7. We have carefully considered the notes of arguments filed by the Ld CIT DR and the reply arguments filed by the Ld AR. Before going into the same we find from the Grounds of Appeal filed by the Revenue namely Grounds 1 to 4 are inter connected namely \"Whether any incriminating material should be found and seized during the course of search for making assessment under section 153A of the Act\". Ground nos 5 and 6, are relating to deletion of addition made on account of deposit/investments in HSBC Geneva bank account. Ground no 7 is the Ld CIT[A] has not following the proposition of law laid down in the Finance act, 2012. Ground nos. 8 and 9 is to set aside the order of Ld CIT[A] and restore the order of the assessing officer. 7.1. We notice that there is no specific Grounds of Appeal raised by the Revenue on the findings of the Ld.CIT[A] that the assessment orders are barred by limitation and therefore the entire assessment itself is quashed. In our considered view, this is the primary LEGAL Ground which ought to have been challenged by the Revenue in the present appeals, however no such specific ground is raised and further Ld CIT DR has not addressed this issue in his 'Notes on Arguments'. Thus we presume that the Revenue is not challenging the findings of Ld CIT[A] quashing the assessment orders as time-barred. However Ground no.7 \" the Ld CIT[A] has not following the proposition of law laid down in the Finance Act, 2012.\" Though this ground is not specific about the assessment order is barred by limitation, but considering that the Ld CIT[A] has not following the proposition of law laid down in Finance Act, 2012\", which means about the amendment made in Clause [viii] of the Explanation to section 158B[1] of the Finance Act 2012, thereby extending the period of limitations from \"six months\" to \"12 months\" with effect from 1st day of July 2012. 7.2. For better understanding the Memorandum explaining the changes in the Income Tax Act vide Finance Bill 2012, wherein clauses 63, 65 the changes relevant to extension of time limit for completion of assessment, where information is sought under DTAA is explained as follows: \"... The time limit for completion of an assessment provided in section 153 and 153B of the Income Tax Act. These provisions were amended vide Finance Act 2011 to exclude the time taken in obtaining for information [from foreign tax authorities] from the time prescribed for completion of assessment or reassessment in the case of an assessee. This time period to be excluded would start from the date on which the process of getting information is initiated by making an reference by the Competent Authority in India to the foreign tax authorities and end with the date on which information is received by the Commissioner. Currently, this period of exclusion is limited to 6 months. Foreign inquiries generally by nature take longer time for obtaining information. It is, therefore, proposed that this time limit of six months be extended to one year. These amendments will take effect from 1 July 2012.\" 7.3. As it can be seen from paragraph 4 of the assessment order, the Competent Authority namely Under Secretary [FT&TR-III][2] vide its letter dated 21-02-2013 sought for information under the provisions of 'Exchange of information' article to Indo-Switzerland, DTAA. Since the reference been made after 1st July 2012, the amended extension period of 12 months will be Page | 51 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia applicable in the present case. It is further clear from the Memorandum explaining the changes in the Income Tax Act vide Finance Bill 2012 that the time period to be excluded would start from the date on which the process of getting information is initiated by making an reference by the Competent Authority in India to the foreign tax authorities and end with the date on which information is received by the Commissioner. In the present case since the reference was made on 21-02-2013 by the Competent Authority, the extended 12 months period expires on 20- 02-2014. But the normal time barring period for completion of assessment order is on 31-03-2014. Thus there is 38 days time available from 21-02-2013 to 31-03- 2014. 7.4. As per the proviso to Explanation [viii] to section 153B[1], which states that if the period available to the AO is less than 60 days for the purpose of limitation, then the period available would get extended to 60 days or deemed to be extended accordingly. Since the regular time limit of 38 days available with the AO, as per the above proviso, 60 days namely further time of 22 days, that is upto 22-04- 2014 is available to the AO for completion of the assessment order. However the Ld Assessing Officer completed the assessment order on 17-02-2015 which is clearly barred by limitation. Both the AO and Ld CIT DR could not able to justify that the assessment order passed is well within the period of limitation. Whereas the Ld CIT[A] in his Appellate order at paragraph 6.19 has elaborately dealt this issue and held that the assessment order is barred by limitation, since the same is passed after 22-04-2014. Therefore we have no hesitation in holding that the assessment orders passed by the Ld Assessing Officer on 17-02-2015 are clearly barred by limitation and the assessment orders are non existing in the eye of law. Thus the Ground no.7 raised by the Revenue is devoid of merits and the entire Revenue appeals fails and deserve to be dismissed. 8. Though the entire assessment is quashed on the ground of time barred, however we are required to adjudicate the other grounds raised by the Revenue. As stated earlier, Grounds nos. 1 to 4 are inter connected namely \"Whether any incriminating material should be seized during the course of search for making assessment under section 153A of the Act\". We notice that these common Grounds are raised by the Revenue in every search cases in a routine and mechanical manner. 8.1. It is seen from the Panchnama recorded during the course of search on 09-09-2011, lose paper file containing 99 pages were being found and seized by the Investigation team [which is placed in pages 56 to 58 of the paper book]. The above seized materials are car insurance, quotation for car, I.T.A Nos. 25 & 25./Rjt/2021 and C.O. Nos. 1 & 2/Rjt/2021 A.Ys. 2006-07 & 07-08 Page No 52 ACIT vs. Shri Rajeshkumat G. Patel Form No.7, 12 & 8A of Agricultural land at Limbdi [only land inquiry but no transaction took place], list of name and address of relatives and friends, legal notice from Swastik Oil Mill, copies of ledger account, correspondence letter with Ishwar Jagani [regarding Gujarat Cine Enterprise], dates of arrival and departure as per passport of Jay Bhalodia [son of the assessee], rough working of routine car expenses, Networth certificate & acknowledgement of Return of Income of Jay Page | 52 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Bhalodia [for Visa purpose], rough details of rent for premises Nirali, draft of flat agreement [belongs to Pushpa Ben] and passport copies of the assessee and his wife. The above seized materials of 99 pages were been clarified by the assessee with each seized material by way of a table [which is placed in pages 59 to 61 of the paper book]. These sized materials are NOT the basis of making addition by the assessing officer in the assessment order. But additions were made based on what was NOT found and seized from the premises of the assessee during the course of search, namely three pages entries of HSBC Bank. 8.2. As it can be seen from para 6.2 of the Assessment order, a THREE pages photocopy document of HSBC, Geneva bank account with code profile client 5095020378 was confronted to the assessee and statement u/s. 132[4] was recorded admitting Rs.39.6 crores as investment in Foreign Bank accounts by the assessee on behalf of the entire group. This is NOT A DOCUMENT SEIZED during the continuation of the Search on 15-09-2011 at the premises of the assessee, but brought by the Investigation Team as 'an information' by the ADIT and confronted to the assessee. 8.3. We find that the document relied upon by the AO is not an evidence much less admissible evidence in view of the fact that data shown IS NOT IN ORIGINAL BUT PHOTO COPIES, which were not authenticated. It neither have any signature of the Banking Authority nor it has the Bank Logo/emblem in it. [for ready reference the same is enclosed as Annexure 1 of this order, this document is also not eligible being a Photo copy]. Further mere appearance of some personal details of the assessee on the three pages photostat copy does not validate the information as true and correct. Since personal details are easily available from known sources and therefore such details do not validate the case of the AO in any manner. Further more if the \"information\" in the possession of the Revenue been authentic and concrete, then what is the necessity to collect the same again from the Competent Authority namely FT&TR Division. Even after ten years after such reference the Competent Authority could not produce the same to the Department. Thus the burden of proof for proving the connection of the alleged foreign bank account was upon the Revenue and not on the assessee. Therefore, what the AO attempted to draw an inference that the assessee owns and maintains foreign bank account, based on some unverified sheet of paper which is indicative of a bank statement, it is upon the AO to prove the truthfulness of the same. But till the stage of second appellate proceedings Ibefore this Tribunal, being the highest facts findings authority, the Revenue failed to prove the same with necessary materials and proper evidences. Therefore the Ground Nos. 1 to 4 raised by the Revenue are devoid of merits and the same is liable to be dismissed. 9.1.Regarding Ground Nos.5 & 6, it is appropriate to consider the written submissions of both the parties on evidentiary value of the documents and the same is reproduced again as follows: \" 10.Under this para, the ld. DR has relied upon the Evidence Act. Reply 10.1. The Respondent prays that, before citing the definition of evidence as per the Indian Evidence Act, it is prayed that the definition of 'evidence' should be read together with the definition of 'proved' and the merged result of Page | 53 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia these two definitions are to be considered for ascertaining a fact to be evident to the case. According to Section 3 of the Evidence Act 1872, evidence means and includes:  All such statements which the court allows or needs to be presented before it by the witnesses in connection to matters of fact under inquiry. These statements are termed as oral evidence.  All such documents including any electronics record, presented before the court for inspection. These documents are termed as documentary evidence. 10.2. Documentary evidence is the evidence that mentions any issue described or expressed upon any material by way of letters, figures or marks or by more than one of the ways which can be used for recording the issue. Primary documentary evidence includes the evidence that shows the original documents as mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence is the evidence that includes copies of documents that can be presented in the court under certain circumstances or as mentioned in Section 63 and Section 65 of the Indian Evidence Act. Direct Evidence is acknowledged as the most important evidence required for deciding the matter in issue. Direct evidence directly proves a fact or disapproves of the fact by its virtue. In the case of direct evidence, a particular fact is accepted directly without giving any reason to relate to the fact. One does not even need to point out the illustration provided as the evidence given by the witness in the court of law is the direct evidence which is sufficient enough to prove the matter as against the testimony to a fact proposing guilt. Here in the case of the Respondent, there is no direct evidence (as otherwise, the AO would have made it a part of the assessment order). In order to establish admission of evidence, the following facts should be consistent with the theory.  The circumstances from which the inference for the theory was drawn, should be fully established.  The circumstances should be of a decisive nature.  The circumstances should serve to mean and prove only the theory proposed to be proved and should not entertain any other theory. 10.3.None of the above pre-requisites are fulfilled here. Hence, a mere unauthenticated document, can never constitute evidence. 11. Under this para, the ld. DR has relied upon the definition of the word perjury. Reply 11.1 The Respondent prays that, perjury is only applicable where there are false statements/ evidences. The Hon Members are humbly appraised that, the Department has also initiated prosecution proceedings. The only charge made in the prosecution filed by the department is failure to file return of income in time. Had there been alleged perjury, then obviously this too would have been the charge raised by the Department. This amply proves that, there is no perjury, as alleged 9.2. Further the it is Nowhere in the assessment order the AO has corroborated the admission of the assessee with independent corroborative evidences. This is because, no such corroborative evidences (about foreign Page | 54 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia bank account) was found during search. If there is a single corroborative evidence in this regard, then the ld. CIT(DR) ought to have unfolded this fact by referring to specific instance (from the assessmdent order). Thus, this is just a passing remark without substance. Further the very fact that the information available with the department was not authentic, is the reason why seach took place, as the Revenue wanted to confirm this unauthentic information with some corroborating material (to be hopefully found from the possession of the assessee). The only requirement/plea of the assessee was that, he may be given copy of any document to prove the allegation, which was NOT PROVIDED since it is non-existing document. This amply proves that the 'satisfaction note' of the Investigation Wing was also on a wrong footing as they came only for roving inquiry. 9.3. In this connection, Jurisdictional High Court of Gujarat in the case of KailashbenManharlal Chokshi Vs. CIT reported in [2008] 174 taxmann.com 466 (Guj.) held that merely on the basis of admission of the assessee could not have been subjected to such additions unless and until, some corroborative evidence is found in support of such addition. When the statement recorded at such odd hours cannot be considered to be a voluntary statement, when the same is retracted by the assessee. Therefore the addition made is liable to be deleted. Operative portion of the above judgement reads as follows: \"...26. In view of what has been stated hereinabove we are of the view that this explanation seems to be more convincing, has not been considered by the authorities below and additions were made and/or confirmed merely on the basis of statement recorded under section 132(4) of the Act. Despite the fact that the said statement was later on retracted no evidence has been led by the Revenue authority. We are, therefore, of the view that merely on the basis of admission the assessee could not have been subjected to such additions unless and until, some corroborative evidence is found in support of such admission. We are also of the view that from the statement recorded at such odd hours cannot be considered to be a voluntary statement, if it is subsequently retracted and necessary evidence is led contrary to such admission. Hence there is no reason not to disbelieve the retraction made by the Assessing Officer and explanation duly supported by the evidence. We are, therefore, of the view that the Tribunal was not justified in making addition of Rs. 6 lakhs on the basis of statement recorded by the Assessing Officer under section 132(4) of the Act. The Tribunal has committed an error in ignoring the retraction made by the assessee. 27. In the above view of the matter, addition of Rs. 1 lakh made on account of unaccounted cash is confirmed and the addition of Rs. 6 lakhs is hereby deleted.\" 9.4. Thus, we are of the considered opinion that the alleged unauthenticated and uncorroborated sheets of papers should not be considered as evidence, whether primary or secondary and therefore addition made by the Ld AO on such document is liable to be deleted. Therefore the Ground Nos. 5 to 6 raised by the Revenue namely deletion of addition made on account of deposit/ investments in HSBC Geneva bank account are devoid of merits and the same is liable to be dismissed. Page | 55 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 10. It is appropriate to consider the Co-ordinate Bench of Delhi Tribunal in the case of Bhushan Lal Sawhney Vs. DCIT, Central Circle-7, New Delhi reported in [2021] 127 taxmann.com 642 wherein it was considered the temporal scope of Article 26 of the Amended Double Taxation Avoidance Agreement between India and Switzerland, thereby, such information could be provided from 1-4-2011. As per Notification dated 27-12-2011 between India and Switzerland Confederation for avoidance of double taxation, which clearly show that these are applicable after assessment years under appeals and as per information provided vide letter Dated 26-6-2015 no such information could be provided prior to 1-4-2011. Therefore, Swiss Authorities have not provided any information to Revenue Authorities in India about assessee's bank account with HSBC, Geneva, Switzerland for assessment years under appeals i.e., A.Ys. 2006-2007 to 2011-2012. Thus, there is no incriminating material available on record to make any addition in any assessment years. It may also be noted here that assessee since the very beginning denied to have maintained any such bank accounts with HSBC, Geneva, Switzerland. There is no material available on record that the assessee made deposits in HSBC Bank A/c in A.Y. 2006- 2007 or thereafter earned any interest in remaining assessment years under appeals. Operative portion of the decision reads as follows: \"... 6. Learned Counsel for the Assessee submitted that it is an undisputed fact that search was conducted on 28-7-2011 on the assessee. Learned Counsel for the Assessee referred to paper book filed by the Ld. D.R. containing letter Dated 22-8-2019 of ACIT, Central Circle-7 [ A.O.] to the CIT-DR in which it was categorically stated that last panchanama was drawn on 26-9- 2011. He has, therefore, submitted that in F.Y. 2011-2012 search is executed and last panchanama drawn. Learned Counsel for the Assessee, therefore, submitted that impugned assessment orders passed on 2-3-2015 are barred by limitation because of search took place on 28-7-2011 as mentioned in the assessment orders and thus the limitation to pass assessment orders expire on 31-3- 2014 as per Section 153B(1)(a) of the I.T. Act, 1961. But, the impugned orders have been passed on 2-3-2015. The Ld. CIT(A) did not appreciate the above issue. He has submitted that reason of passing the assessment orders Dated 2-3-2015 advanced by the Ld. CIT-DR was that since a reference under section 90 of the I.T. Act, 1961 was made to Swiss Authority and no information was received till the time of passing of the assessment orders, hence, the time limit was extended by one year under Explanation-IX of Section 153B of the I.T. Act, 1961. He has submitted that the Ld. CIT-DR has furnished a letter Dated 26-6- 2015 together with information asked for in relation to the assessee received from Swiss Authority. It may be seen that as per A.O's admitted case, reference was made under section 90 of the I.T. Act, 1961 under the provisions of \"Exchange of Information\", Article of Indo Switzerland Double Taxation Avoidance Agreement [DTAA] and such information was required for the period from 1-4-1995 to 31-3-2012 seeking information under the provisions of \"Exchange of Information\" Article 26 of Indo-Switzerland Double Taxation Avoidance Agreement [DTAA]. He has submitted that the above stated such reference made under section 90 is bad in Law and Revenue could not have made any such reference for seeking information for the period prior to 1-4- 2011 and hence such illegal reference could not have been made in Law, could Page | 56 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia not have lead to extension of time limit for passing the assessment orders. Thus, the time limit in passing the impugned assessment orders in the case of the assessee expired on 31-3- 2014 itself. He has further submitted that in fact the Revenue I.T.A Nos. 25 & 25./Rjt/2021 and C.O. Nos. 1 & 2/Rjt/2021 A.Ys. 2006-07 & 07-08 Page No 60 ACIT vs. Shri Rajeshkumat G. Patel could not have made reference for the period prior to 1-4-2011 which is evident from the following:- 6.1.1 Administrative assistance by Swiss Competent Authority in their letter dated 26th June, 2015 addressed to Government of India, MOF, FT & TR and filed by Ld. CIT(DR) on 11-1-2021 through email reads as under: \"In accordance with Article 26 DTA CH-IN, administrative assistance for questions concerning the application of domestic law can only be provided for information starting from the financial years 2011/2012 as the prior years are not covered by temporal scope of Article 26 of the amended Double Tax Agreement between India &Swtizerland. Therefore we can only provide you with information from 1 April 2011 (see decision A-4232/2013 of 12 December 2013 of the Swiss Federal Administrative Court)\". 6.1.1.2 The Learned Counsel for the Assessee submitted that the Agreement between The Republic of India and The Swiss Confederation for avoidance of double taxation with respect to taxes on income as modified by Notification No. S.O.2903(E) Dated 27-12-2011. Copy of Notification No. S.O.2903(E) Dated 27-12-2011 together with amended protocol filed to show it apply to later period. Therefore, reliance is placed on the following judicial decisions which hold that if the Reference based upon which the limitation is sought to be extended is held bad, limitation so extended would also be bad in law. ... ... .... 8. We have considered the rival submissions and perused the material on record. It is not in dispute that search was conducted in the case of assessee on 28-7-2011. Both the parties have placed on record copies of the panchanama drawn in the case of assessee at the time of search and thereafter, but, the same did not disclose if any, incriminating material much less than the material was found during the course of search to connect the assessee with maintenance of any bank account with HSBC, Geneva, Switzerland. The Ld. D.R. also placed on record letter of the A.O. Dated 22-8-2019 in which it is clearly mentioned by the A.O. that last panchanama was drawn on Dated 26-9- 2011. Learned Counsel for the Assessee also placed on record letter Dated 26- 6-2015 issued by Swiss Competent Authority addressed to the Government of India in which it is specifically mentioned that information as required could be provided from F.Y. 2011-2012 as the prior years are not covered by temporal scope of Article 26 of the Amended Double Taxation Avoidance Agreement between India and Switzerland. Therefore, such information could be provided from 1-4-2011. Learned Counsel for the Assessee also placed on record Notification Dated 27-12- 2011 between India and Switzerland Confederation for avoidance of double taxation. These would clearly show that these are applicable after assessment years under appeals and as per information provided vide letter Dated 26-6-2015 no such information could Page | 57 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia be provided prior to 1-4-2011. Therefore, Swiss Authorities have not provided any information to Revenue Authorities in India about assessee's bank account with HSBC, Geneva, Switzerland for assessment years under appeals i.e., A.Ys. 2006-2007 to 2011-2012. Thus, there is no incriminating material available on record to make any addition in any assessment years. It may also be noted here that assessee since the very beginning denied to have maintained any such bank accounts with HSBC, Geneva, Switzerland. There is no material available on record that assessee made deposits in HSBC Bank A/c in A.Y. 2006-2007 or thereafter earned any interest in remaining assessment years under appeals. 8.1 Considering the totality of the facts and circumstances of the case above, it is also clear that during the course of search no incriminating material was found against the assessee for maintaining any such bank accounts with HSBC, Geneva, Switzerland. Whatever information was supplied by the Swiss Authorities subsequently to the Revenue Authorities in India, no such information was provided for the period prior to 1-4-2011. Therefore, it is clear that no information have been provided by the Swiss Authorities that assessee maintained any bank account with HSBC, Geneva, Switzerland in assessment years under appeals i.e., 2006-2007 to 2011-2012. Therefore, it is clear that no incriminating material was found against the assessee so as to make any addition against the assessee. The Hon'ble Delhi High Court in the case of, Kabul Chawla (supra) held as under: \"vii. Completed assessments can be interfered with by the A.O. while making the assessment under section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment\" 8.2 The Hon'ble Delhi High Court in its recent decision in the case Meeta Gutgutia (supra) in paras 69 to 72 has held as under : \"69. What weighed with the Court in the above decision was the \"habitual concealing of income and indulging in clandestine operations\" and that a person indulging in such activities \"can hardly be accepted to maintain meticulous books or records for long.\" These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission. 70. The above distinguishing factors in Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. Conclusion Page | 58 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 72. To conclude: (i) Question (i) is answered in the negative i.e., in favour of the Assessee and against the Revenue. It is held that in the facts and circumstances, the Revenue was not justified in invoking Section 153A of the Act against the Assessee in relation to AYs 2000-01 to AYs 2003-04.\" 8.1. The above Judgment is confirmed by the Hon'ble Supreme Court by dismissing the SLP of the Department. Therefore, on this reason alone no addition could be made of any unexplained bank deposits or interest earned thereon in any of the assessment years. In view of the above, we set aside the Orders of the authorities below and delete the entire additions. In view of the above, there is no need to decide the remaining grounds of appeals which are left with academic discussion only. Accordingly, all the appeals of the Assessee are allowed. 8.2. In the result, all the appeals of the Assessee are allowed.\" 11. Further the Co-ordinate Bench of the Delhi Tribunal in the case of ANURAG DALMIA vs. DCIT reported in [2018] 52 CCH 0106 [ITAT Del] has considered similar HSBC Bank foreign account and deleted the additions made by the AO as follows: \"... 13. Now keeping in view the binding judicial precedents of the Jurisdictional High Court, we shall proceed to examine the facts as are available on record. The Income Tax Department through its FT & TR Division of CBDT had received information pertaining to foreign bank accounts either held by certain Indians or were beneficiaries in these bank accounts under the exchange of information between India and France. The French Authorities on 28.06.2011 gave information in USB that certain persons in India held bank accounts in HSBC Pvt. Bank (SUISSE), Switzerland. In the said information, the name of the assessee had also figured and 11 pages document pertaining to the assessee was also received. The contents of the documents have been reproduced in the assessment order. These documents revealed that in the bank accounts of certain entities, the assessee was either beneficial owner in the account or had been shown as the person having right of inspection or as account holder. The name of the entities which held the bank accounts have already been discussed above. The total sums standing in the bank accounts for the relevant financial year, aggregated to Rs.27.92 crore in terms of INR. The details of amount appearing in the account of various entities have already been incorporated above. After receiving the said information, the Investigation Wing of the department carried out search and seizure action in the case of the assessee and group cases on 20.01.2012, to find out the assessee's link with these bank accounts and to get some corroborative material or documents. During the course of search and seizure action, as culled out from the impugned orders as well as the material placed on record, it is an admitted fact that no documents or any incriminating material whatsoever was found or seized during the course of search and seizure action so as to remotely suggest that either the assessee was having any bank account in Switzerland with HSBC or assessee was any way linked to these bank accounts. In the statement recorded u/s. 132(4) the assessee had categorically denied having such bank accounts or having any link with the bank accounts of such entities. No material or evidence was found Page | 59 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia to rebut the denial statement of the assessee. Apart from that, even during the course of the assessment proceedings when statement was recorded by the AO, assessee continued to deny such kind of transaction and even at the stage of the assessment proceedings the Assessing Officer did not confront with any material which can be said to have been recovered from the possession of the assessee in the course of search with regard to the deposits or any kind of link in the foreign bank accounts. The ld. CIT (A) in the impugned order also (which has been incorporated above) has not held that any document or evidence qua any link with the foreign bank accounts has found during the course of search, albeit he has given a finding that to the effect that it was on the basis of the information received which was precursor to carry out search and seizure action at the premises of the assessee and such an information/material even though not found in the course of search can be utilized for the purpose of assessment. For which reference was to made judgment of Hon'ble Supreme Court in the case of Pooranmal vs. DIT, (1974) 93 ITR 505 (SC). In the said judgment, Hon'ble Supreme Court held that if any evidence or material which has been found during the course of search can still be used/utilized, even if search has been held to be invalid. Nowhere has it been laid down by the Hon'ble Supreme Court that any material or information gathered prior to the search has to be reckoned or is deemed to be found during the course of search. It was never a case of the department either before us or before the first appellate stage that in the post search anything has been found, except that the information which though was incriminating against the assessee was already in the possession of the department. Ld. CIT (A) though has tried to rope in the element of incriminating material/evidence found during the course of search by holding that statement u/s. 132(4) it constitutes incriminating material within the meaning and scope of Section 153A. However, such an observation and the finding is de hors the fact as admittedly in the statement recorded on oath u/s 132(4) at the time of search, assessee has categorically denied having such transaction or any kind of link with the foreign bank accounts. Thus, the observation of the ld. CIT (A) to this extent is erroneous on facts and hence cannot be upheld. In the letter filed by the ld. CIT-DR written by the Assessing Officer before us, it is clearly established that the information was received by the French Authority on 28.06.2011 and based on this information the investigation wing had carried out search in the case of the assessee. This fact itself is a testament that the material information which has been referred to in the assessment order was prior to the date of search and not found in the course of search or even in the post search events. 14. The information which has been received from the foreign authorities wherein the name of the assessee is appearing at the outset appears to be incriminating which warrants not only inquiry but also can lead to prima facie belief that assessee may be somehow link to these bank accounts. However whatever may be the incriminating information which can implicate assessee but the said information has been received as a result of search carried out on 20.01.2012. Once any document which though is in the nature of incriminating material but if it has not been found in the course of search, then in view of the principle laid down by the Hon'ble Jurisdictional High Court in several cases, such an addition cannot be roped in the assessment u/s.153A especially in the Page | 60 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia assessments which are not abated. If the Revenue had any incriminating material antecedent to the search, that is, it was found during the course of search or as a result of search, then in that case Revenue had various other courses of action left under the provisions of Income Tax Act, but certainly not I within the ambit and scope of Section 153A read with 2nd proviso thereto.\" 12. Another Co-ordinate Bench of Kolkata Tribunal in the case of Bishwanath Garodia Vs. DCIT, Central Circle-3(3), Kolkata reported in [2016] 76 taxmann.com 81 has considered similar HSBC Bank foreign account and deleted the additions made by the AO as no seized materials was found during the search operation. Operative portion of the decision reads as follows: \"....8. We have considered the rival submissions and also perused the relevant material available on record. It is observed that the returns of income originally filed by the assessee for both the years under consideration were duly processed by the Assessing Officer under section 143(1) well before the date of search conducted on 28.07.2011. The said search was conducted in the case of the assessee on the basis of information received by the Assessing Officer from CBDT relating to the undisclosed account maintained by the assessese with HSBC Bank, Geneva, Switzerland. During the course of search, no incriminating material, however, was found relating to the transactions reflected in the said Bank account of the assessee with HSBC Bank or any income relating thereto and this position was categorically admitted by the Assessing Officer during the course of appellate proceedings before the ld. CIT (Appeals) as is evident from the relevant order-sheet entry dated 21.12.2015 recorded by the ld. CIT (Appeals) (copy at page no. 22 of the paper book). The question that arises now is whether in the absence of such incriminating material, any addition to the total income of the assessee can be made on account of the transactions reflected in the Bank account of the assessee with HSBC Bank or any income relating thereto in assessments completed under section 153A of the Act for both the years under consideration. 9. As per the provisions contained in Section 153A, if the search or requisition is initiated after 31.03.2003, the Assessing Officer is under an obligation to initiate proceedings under section 153A for six years immediately preceding the year of search. The Assessing Officer is then required to assess 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 the search, the same would abate, i.e. pending proceeding qua the said assessment year would not proceed thereafter and the assessment has to be made under section 153A(1)(b) of the Act read with the 1st Proviso thereunder. As regards the other years for which assessments have already been completed and the assessment orders determining the assessee's total income are subsisting at the time when the search or requisition is made, the scope of assessment under section 153A is limited to reassess the income of the assessee on the basis of incriminating material found during the course of search. 13. At the time of hearing before us, the ld. 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 Page | 61 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia consideration could be said to have been completed. He has also contended that the conclusion of such alone is sufficient to give jurisdiction to the Assessing Officer 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 High 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 whether the Assessing Officer was empowered to reopen the proceedings and reassess the total income taking note of the undisclosed income, if any, unearthed during 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 section 143(3) of the Act and such order was already in existence having been passed prior 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 Hon'ble Delhi High Court that there was no distinction made by Their Lordships in the assessments completed under 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 consideration of Mumbai Bench of this Tribunal in the case of Pratibha Industries Ltd. (supra) and after referring to the discussion made by the Hon'ble Delhi High Court in this context in the case of Anil Kumar Bhatia (supra), the Tribunal held that the only logical conclusion which could be traced out by harmonizing the legislative intendment and the judicial decision was that where 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 to have escaped assessment on the basis of incriminating material found during the course of search. To arrive at this conclusion, reliance was placed by the Tribunal on the decision of Special Bench, Mumbai in the case of All Cargo Global Logistics Ltd. (supra), wherein it was held that even though all the six years shall 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 proceedings that are pending. But in a case or in a circumstances where the proceedings have reached finality, assessment under section 143(3) read with section 153(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. 14. Keeping in view the discussion made above, we hold 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, Geneva, Switzerland and income relating thereto for both the years under consideration 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 material found during the course of search to support and substantiate the said addition. The said additions made for both the years under consideration are, therefore, deleted allowing the relevant grounds of the assessee's appeals. 15. Thus the Ground Nos.8 & 9 raised by the Revenue are general in nature and does not require separate adjudication. In the result the appeal filed by the Page | 62 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia Revenue is devoid of merits and liable to be dismissed and we confirm the order of Ld CIT[A] who held that the assessment order is barred by limitation. 16. C.O.No.1/RJT/2021 filed by the assessee and Grounds of Appeal raised therein are that the CIT[A] failed to decide the initiation of proceedings u/s.153A and failed to decide the additions made by the AO on merits of the case. We do not find merits in the grounds raised by the assessee, since the Ld CIT[A] who quashed the assessment order itself as time barred which is confirmed by us, therefore there is no separate adjudication is required on the merits of the case on the additions/disallowance made by the AO, since the assessment orders itself is invalid in law. Therefore the Cross Objection filed by the assessee becomes infructuous and the same is dismissed. 17. The facts in ITA No.26/RJT/2021 relating to the asst. year 2007-08 and the addition/disallowance is also identical except change in figures, therefore respectfully following the ratio of the decision in ITA No.25/RJT/2021 rendered herein above will be squarely applicable to the present asst. year 2007-08 also. Thus the Revenue appeal is devoid of merits and liable to be dismissed. Similarly the Cross Objection No.2/RJT/2021 filed by the assessee becomes infructuous and dismissed. 39. From the above findings of the Tribunal, it is abundantly clear that when the substantive addition in the hands of Rajesh G. Patel, has been deleted by the Tribunal, then protective addition should also be deleted in the hands of these two assessees. 40. The Protective additions are made when there is uncertainty about who is liable to pay tax on a particular income. It is done to safeguard the revenue while the substantive assessment is under dispute. If the substantive addition is deleted, it implies that the income does not belong to the taxpayer under substantive assessment. Double taxation of the same income is not permissible. Therefore, if the income is not taxable in the hands of the person subjected to substantive assessment, it cannot be taxed under protective assessment either. Thus, we are of the view that if a substantive addition made by the Assessing Officer (AO) is deleted by the Income Tax Appellate Tribunal (ITAT), then the protective addition linked to the same transaction or issue should also be deleted. Page | 63 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia This is because the purpose of protective assessment is to ensure that the income is taxed, but only as a precautionary measure, while the primary (substantive) liability is being established, therefore, once the substantive addition is deleted, protective addition must also be deleted as there is no basis for taxing the income under protective assessment. Thus, we find that when substantive addition has been deleted by the Tribunal, then protective addition does not have any leg to stand. Considering these facts and circumstances, we find that there is no infirmity in the order passed by the ld. CIT (A). On a careful reading of the order of Ld. CIT(A), and the findings thereon, as we have noted above, we, do not find any valid reason to interfere with the decision and findings of the Ld. CIT(A). Hence, we sustain the order of the Ld. CIT(A) and reject the various grounds raised by the Revenue. 41. In the result, the revenue’s appeal in ITANo.30/RJT/2021, for assessment year 2006-07, in the case of ( Rajnikant Mohanlal Bhalodia), is dismissed. 42.We have adjudicated the issue by taking the lead case in ITANo.30/RJT/2021, for assessment year 2006-07, since the grounds of appeal of the revenue in assessment year 2007–08 are also similar and identical, therefore, Revenue`s appeal in ITA No.31/RJT/2021, is also dismissed. In the case of Revenue`s appeals in ITA No. 32 and 33/RJT/2021 ( pertaining to Shri Rashmikant V. Bhalodia), the facts and grounds of appeal of the revenue are similar and identical, therefore, our observations made in ITA No. 30/RJT/2021, for assessment year 2006-07, Page | 64 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia shall apply mutatis mutandis to the aforesaid other appeals of Revenue, namely, ITA No.31/RJT/2021, and ITA No. 32 and 33/RJT/2021.For the parity of reasons, we dismiss the abovementioned appeals of the Revenue in terms of directions noted in ITA No. ITANo.30/RJT/2021, for assessment year 2006-07. 43. Now, coming to grounds raised by the assessee, in Cross Objection No.05/Rjt/2021, for assessment year 2006-07, in the case of Rajnikant Mohanlal Bhalodia, and other cross objections, Viz: 3, 4, and 6/RJT/2021. The ld. Counsel for the assessee, argued before the Bench that all cross objections are supportive to the order of the ld CIT(A). Since we have upheld the order passed by the ld. CIT(A), therefore, the adjudication of these cross objections become academic and infructuous, hence we dismiss the same. 44.We also make it clear that assessee has raised other some small grounds, in these cross objections, say, in CO No.05/Rjt/21, for assessment year 2006–07, the assessee raised ground that ld .CIT(A) not decided the ground on merit, pertaining to disallowance of interest expenses of Rs.25,000/- under section 14 A of the Act, since these small grounds were not argued, therefore we do not adjudicate them, and dismiss them as not argued/ not pressed. Therefore, we dismiss all the cross objections filed by the assessee. Page | 65 ITA No.30-33/RJT/2021& CO No.3,4, 5 & 6- RJT 2021Rajnikant Mohanlal Bhalodia&RashmikantValji Bhalodia 45. In the result, all the cross objections filed by the assessees are dismissed. 46. In the combined result, appeals filed by the Revenue, in ITA Nos.30 to 33/RJT/2021, are dismissed and All the cross objections filed by the assessees are also dismissed. Order is pronounced in the open court on 09/01/2025 Sd/- Sd/- (DINESH MOHAN SINHA) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot Ǒदनांक/ Date: 09/01/2025 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot "