Income Tax Appellate Tribunal – Kolkata
Dcit, Central Circle – 2(2), … vs M/S. Image Vinimay Limited , … on 15 May, 2019 आयकर अपील य अधीकरण, यायपीठ – “B” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “B” KOLKATA Before Shri S.S.Godara, Judicial Member and Dr. A.L. Saini, Accountant Member IT(SS)A No.84/Kol/2017 Assessment Year :2008-09 DCIT, Central Circle- V/s. M/s Image Vinimay Ltd. 2(2), Aayakar Bhawan, 39 Shakespeare Sarani , Poorva, 110, 6 t h Floor,Kolkakta-17 Shantipally, Kolkata-107 [P AN No. AAACI 6966 L] अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri A.K. Singh, CIT-DR यथ क ओर से/By Respondent Shri A.K. Tulsyan, FCA सन ु वाई क तार ख/Date of Hearing 16-04-2019 घोषणा क तार ख/Date of Pronouncement 15-05-2019 आदे श /O R D E R
PER S.S.Godara, Judicial Member:- This Revenue’s appeal for assessment year 2008-09 arises against the
Commissioner of Income Tax (Appeals)-20, Kolkata’s order dated 22.03.2017
passed in case No.484/CIT(A)-20/CC-2(2)/15-16, involving proceedings u/s
143(3) r.w.s 153A of the Income Tax Act, 1961; in short ‘the Act’.
Heard both the parties. Case file perused.
2. It transpires at the outset that the Revenue’s instant appeal suffers 26
days in filing. It has placed on record its condonaton petition stating reason
thereof. Learned counsel representing assessee is fair enough in not disputing
all these solemn averments. We therefore condone the impugned delay of 26
days in filing involved in the instant appeal.
3. We now advert to the Revenue’s sole substantive ground raised in the
instant appeal seeking to challenge correctness of the CIT(A)’s order
quashing the impugned assessment proceedings for want of incriminating IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 2 material found or seized during the course of search which could validly
trigger course sec. 153A in proceedings in issue. The CIT(A)’s detailed
discussion under challenge reads as follows:-
“3. I have considered the finding of the AO in the assessment order and the written submission as well as oral submission made by the AR during the appellate proceedings.
4. Appeal on grounds no 1 and 2 are against the assessment order passed u/s 153A/143(3) of the I T Act, 1961. The main contention of the assessee is that additions made in the assessment order passed it’s 153A/143(3) are not based on any incriminating documents/materials seized during search operation conducted u/s 132 of the I T Act, 1961. During the appellate proceedings the AR has filed a written submission on this issue which is as under:
1.2 This ground is against the addition of the items of regular assessment in the assessment made under sec 153A of the Act Without having any incriminating material to that effect found and seized In the course of search & seizure operation. The Ld. AO while exercising the powers conferred within him o/s 153A of the Act has failed to appreciate the legal position that the addition in the case of search assessments has to be made only on the basis of incriminating material. The Ld. AO also can not start doing a fresh assessment that had already been completed either u/s 143(3) or u/s 143(1) under the Act without having any incriminating material on record. In proceedings u/s 153A/153C to reopen the completed assessment is restricted only to the extent of incriminating documents if any only. The various High Court’s including the jurisdiction Calcutta High Court and jurisdictional ITA T have already held that issues forming part of the items of the regular assessment is beyond the scope of the search assessment u/s. 153A/153C and tile AO has no jurisdiction to make addition otherwise than on the basis of the incriminating material found in the course of search. Further in a case where nothing incriminating is found, though Sec. 153A would be triggered and assessment or re-assessment to ascertain the total income is required to be done, the same would result In any addition and the assessm9nts made earlier may have to be reiterated.
1.3.1 The AO made addition of Rs. 2,69,00,000/- u/s 68 of the Act on account of share capital.
A. The addition has been made on the basis of statement of Shri Jivendra Mishra, Shri Beni Prasad Lahoti, Sri Hari Prasad Rathi, Shri Raghwendra Kumar, Shri Jeepak Patari. Shri Mahendro Sethia, Shri Pradeep Kumar Sultania, Shri Manoj Kumar Rakheja, Shri Sunil Kumar Dokama, Shri B.D Agarwal, Shri Rakesh Kumar Jain. Shri Sushif Kumar Agarwal and Shn Amit Kumar Shyam Sukh Alleged to be entry operators record & during post search &o1quiry by the investigation wing which were retracted by them latter by an affidavit duly sworn before the Notary Public Statement of some of the above parties were recorded before the AO u/s 131 of the I. T. Act in which they denied their earlier statement and confirms affidavit of denial.
The said persons have no locus standi. They are in no way connected to the impugned transaction. They were neither subscriber to the share capital (of the companies belonging to the Group) nor Director /employee of any of the companies belonging to tile group. They were only random persons who are in no way connected to the assessee/share applicant companies. Further these are post search enquiries which have no evidentiary value in absence of any Incriminating seized material. No value can be attached to their statement as they have retracted their statement submitted before the depal1ment. Their conduct neutralizes their value as witness of the department. They are double speaking person. In course of search & IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 3 seizure operation no incriminating material or assets were found to link the share capital raised by the assessee with the statement of so-called entry operators. The assessee was not provided opportunity to Cross examine those entry operators. Therefore, statement obtained from the entry operators later on retracted by an affidavit and in some cases 131 statement recorded by AO in which they denied their earlier statement and confirm affidavit of denial have no evidentiary value, no substance and are irrelevant as held by the jurisdictional Calcutta High Court in the case of CIT Vs Eastern Commercial Enterprises.(1994) 210 ITR 103.

The Hon’ble High Court at para no-4 of the order has held as under.
“We have considered the contesting contentions of the parties. It is true that Shri Sukla has proved to be a shifty person as a witness. At the earlier stages, he claimed all his sales to be genuine but before the Assessing Officer in the case of the assessee, he disowned the sales specifically made to the assessee. This statement can at the worst show that Shri Sukla is not a trustworthy witness and little value can be attached to what he stated either in his affidavits or in his examination by the Assessing Officer. His conduct neutralises his value as a witness. A man indulging in double-speaking cannot be said by any means a truthful man at any stage and no Court can decide on which occasion he was truthful. If Shri Sukla is neutralised as a witness what remains is accounts, vouchers, challans, bank accounts, etc. But, we would observe here that which way lies tile truth in Shri Sukla’s depositions, could have been revealed only if he was subjected to a cross- examination by the assessee. As a matter of fact, the right to cross- examination a witness adverse to the assessee is an indispensable right and the opportunity of such cross-examination is one of the cornerstones of natural justice. Hero Shri Sukla is the witness of (he Department. Therefore, the department cannot cut short the process of taking oral evidence by merely having the examination-in-chief. It is the necessary requirement of the process of taking evidence that the examination-in-chief is followed by cross- examination and re-examination, if necessary.

The statements recorded during pre/ post search operation, enquiry or investigation which were retracted subsequently by an affidavit can’t be treated in any circumstances as incriminating materiel. In the course of search, no incriminating document relating to the addition made u/s 68 in respect of share capital was tonne and seized. This fact is evident from the assessment order as the Ld AO is Silent about any Incriminating documents (B) The AO also made addition on tile alleged ground that cash has been deposited in the bank account of third parties. He found cash trial in the following cases. Sl.No. Name of the investor company Amount as per Trail (Rs) 1 Arcj Fomamce & Management Consultancy 20,00,000/-
Pvt. Ltd.
2 Nilmani Barter Pvt. Ltd. 20,00,000 Total 40,00,000 During the post .search enquiry the department found cash deposited in the bank account of some. parties down the line whom the assessee does not know or res any transactions with them. The AO provided no document/bank statement etc which was the basis of drawing of such adverse inference. He has neither recorded the statement of the parties in whose bank account cash has been deposited nor the intermediary parties through whose bank account fund have alleged to be routed and ultimately reached to the assessee The Ld AO has not referred to any incriminating IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 4 material found/ seized in the course of search to establish/link that the cash deposited in the bank account of those patties are assessee’s money The appellant rely on the judgment of the Hon’ble Delhi High court in the case of PCIT Vs. Kurele Paper Mills Pvt. Ltd. (2015) 380 ITR 571(DEL) where it has beer: held that in case of search assessment, addition u/s 68 is not justified If no incriminating evidence relating to share capital found in the course of search. The department had filed special leave petition before the Honorable Apex Court against the said judgment which has been rejected by the Hon’ble Apex Court. The said decision is squarely applicable in tile case of the appellant On the similar issue we also rely on the order of the Jurisdictional ITAT, Kolkata In the case of Mridul Commodities (Pvt) Ltd vs. DCIT, CC.XXI, Kolkata( 2017) 78 Taxmann.com 337(Kolkata- Tllb) wherein it has been held as under.
“10.7 In view of the aforesaid findings and respectfully following the judicial precedents relied upon here in above, we hold that the additions towards share application monies In the sums of Rs.20,00,000/- and Rs. 72.00,000/- for the Asst Years 2008-09 and 2009-10 respectively, which were unabated/concluded assessments, 011 the date of search, deserves to be undistributed in the absence of any incriminating material found in the course of search Hence, we hold that the Ld. AO ought to have only followed the old assessed income either u/s 143(3) or 143(1) of the Act for file relevant year. Since the issues are addressed on preliminary ground of absence of incriminating materials, we refrain to give our findings on the merits of the additions made towards is/are application money. Accordingly the ground raised by the assessee are allowed. ”

1.3.2 The AO made addition of Rs.1,34,500/- holding the same to be commission paid by the assessee for raising share capital. The allegation is baseless as there is no corroborative material/evidence found in the course of search and seizure operation. The addition is based on pure guess and assumption out of regular return of income.

1.3.3 The AO made disallowance of Interest on late payment of Government Dues u/s 37 Rs. 8/-. The same is a routine & technical addition of regular nature out of regular return of income. The expanse is as per the regular books of accounts. There is no incriminating documents for such disallowance 1.3.4 The AO disallowed a sum of Rs.2,29,8501- u/s 14A read with Rule 8D in a routine manner although assessee has not made any dividend or any other exempted income. The same is a technical addition of regular nature out of regular return of income.

1.3.5 The AO Disallowance 11 sum of Rs. 4,07,192/· u/s 40(a)(ia) due to Non- Deduction/short deduction of TDS The same is a routine & technical addition of regular nature out of regular return of income. There is no incriminating documents for such disallowance. All the above additions/disallowances made in the assessment order are part and partial of the regular IT Return. The above additions have not been made on the basis of any incriminating material found in the course of search.

This fact is evident from the assessment order as the AO has not refereed any incriminating material for making the above addition/disallowances. The statements IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 5 of entry operators recorded in pre/post search cannot be held as incriminating material as they have retracted their statement later on by an affidavit.

It has been held by various Courts including the jurisdictional High Court and jurisdictional ITAT that the issue forming part of the regular assessment is beyond the scope of search assessment u/s. 153A/153C and the AO has no jurisdiction to make addition otherwise than on the basis of thee incriminating material found in the course of search.

We also rely on the following Judicial decisions.
1.4 We would like to place reliance on the recent decision of the Hon’ble High Court, Delhi in the case of PCIT Vs. Kurefe Paper Mills Pvt. Ltd. (2016) 380 ITR 571(DEL), SEARCH AND SEIZURE – ASSESSMENT IN SEARCH CASES – SHARE APPLICATION MONEY· NO INCRIMINATING EVIDENCE RELATED TO SHARE CAPITAL ISSUED FOUND DURING COURSE OF SEARCH – DELETION OF ADDITION UNDER SECTION 68- JUSTIFIED INCOME TAX ACT, 1961, SS. 68, 153A.

Held dismissing the appeal. that tile order of Commissioner (Appeals) revealed that there was a factual finding that no incriminating evidence related 10 share capital issue was found during course of search as was manifest from the order of AO. Consequently, it was held that AO was not justified in invoking section 68 for the purposes of making addition on share capital. There was nothing to show that the above factual determination was perverse.

The judgment of the Hon’ble High Court is reproduced as under:
“1. The Revenue has filed the appeal against an order dated November 14, 2014, passed by the income-Tax Appellate Tribunal (ÏTAT”) in 3761/Del/2011 pertaining to the assessment year 2002-03. The question was whether the learned Commissioner of Income -Tax (Appeals) has erred in law and on the facts in deleting the addition of Rs.89 lakhs made by the Assessing Officer under section 68 of the Income -Tax Act, 1961 (“The Act”) on bogus share capital. But the issue was whether there was any incriminating material whatsoever found during the search to justify initiation of proceedings under section 153A of the Act.
2. The court finds that the order of the Commissioner of Income-Tax (Apls) reveals that there is a factual finding that “no incriminating evidence related to share capital issued was found during the course of search as is manifest from the order of the Assessing Officer.” Consequently, it was held that the Assessing Officer was not justified in invoking section 68 of the Act for the purposes of making additions on account of share capital.
3. As far as the above facts are concerned, there is nothing shown to the court to persuade and hold that the above factual determination is perverse. Consequently, after considering all the facts and circumstances of the case, the court is of the opinion that no substantial question of law arises isn’t he impugned order of the Income-Tax Appellate Tribunal which requires examination.
4. The appeal is accordingly, dismissed.”

The department had filed special leave petition before the Hon’ble Apex Court against the above judgement of the Delhi High Court (Pr. CIT v. Kurule Paper Mills P. Ltd : SLP (c) No-34554 of 2015 [2016] 380 ITR (st) 64-Ed). The Hon’ble Apex court dismissed the special leave petition filed by the department. The relevant Para as mentioned in the ITR is reproduced as under:
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 6 ‘Their Lordships Madan B Lokur and S.A. Bode JJ dismissed the
Department’s special leave petition against the judgement dated July 06,2015 of the Delhi High Court in I.T.A. No. 369 of 2015, whereby the High Court held that no substantial question of law arose since there was a factual finding that no incriminating evidence related to share capital issued was found during the course of search and that the Assessing Officer was not justified in invoking section 68 of the Act for the purpose of making additions on account of share capital.”

The above judgment is squarely applicable in the case of the assessee since the AO made addition on account of share capital u/s 68 of the I.T. Act without any incriminating documents found in the course of search.

1.5 In this regard the Hon’ble jurisdictional Calcutta High Court has time and again reiterated its view that the additions in the case of the search assessments has to be made on the basis of incriminating material. Some of the recent decisions of the Hon’ble jurisdictional High Court are discussed hereunder for your honours ready reference:
(a) PCIT-2, Kolkata Vs. Salasar Stock Broking Limited (ITAT No. 264 of 2016) dated 24.08.2016; (Calcutta) In this case, the Hon’ble High Court observed that the Learned. IITAT, Kolkata was of the opinion that the Assessing Officer had no jurisdiction u/s. 153A of the IT Act to reopen the concluded cases when the search & seizure did not disclose any incriminating material. In taking the aforesaid view, the Learned. ITAT relied upon the judgments of Delhi High Court in the case of CIT(A) Vs. Kabul Chawla in ITA No.707/2014 dated 28.08.2014. The Court also observed that more or less an identical view has been taken by this Bench in ITA No.651/2008 in the case of CIT Vs. Veerprabhu Marketing Limited. Considering the above facts, the Hon’ble High Court did not admit the appeal filed by the Department.
(b) CIT, Kolkata-III Vs. Veerparabhau Marketing Limited [2016] 73 taxmann.com 149 (Calcutta):

In this case the Hon’ble Calcutta High Court expressed the following views:
“We are in agreement with the views of the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A.

1.6. The Hon’ble Calcutta High Court in the above cases relied on the following judgments.

(a)PCIT-2, Kolkata vs. Salasar Stock Broking Limited {ITAT No. 264 of 2016} dated 24.08.2016:
(Calcutta) In this case, the Honorable High Court observed that Ld. ITAT, Kolkata was of the opinion that the assessing officer had no jurisdiction u/s 153A of the I.T. Act to reopen the concluded cases when the search and seizure did not disclose any incriminating material. In taking the aforesaid view, the Ld. ITAT relied upon the judgments of Delhi High Court in the case of CIT (A) vs. Kabul Chawla in ITAT No.707/2014 dated 28.08.2014. The Court also observed that more or less an identical view has been taken by this Bench in ITA No. 661/2008 in the case of CITvs. Veerprabhu Marketing Limited. Considering the above facts, the Honorable High court did not admit the appeal filed by the Department.
(b) “CIT, Kolkata -III vs. Veeprabhu Marketing Limited [2016] 73 taxmann.com 149 (Calcutta)|:
In this case the honorable Calcutta High Court expressed the following views:
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 7
“We are in agreement with the views of Karnataka High Court that incriminating material is a pre- requisite before power could have been exercised under the section 153C read with section 153A. In this case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under the section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT (A) but learned Tribunal deleted those disallowances.”

16. The Hon’ble Kolkata High Court in the above case relied on the following judgments.

(a) CITVs Kabul Chawla (2016) 380 ITR 0573 (Del) Search and seizure – New scheme for assessment in search cases-Search was carried out u/s 132 on a leading real estate developer operating all over India and some of its group companies – Search was also carried out in the premises of the assessee – Pursuant to the search a notice u/s. 153A(1) was issued to assessee and thereafter he filed returns-As on the date of the search, no assessment proceedings were pending for relevant AYs and for said As, assessments was already made u/s 243(3) assessee field an application u/s. 154 seeking rectification of the assessments on the ground that the accumulated profits of the companies paying the dividend were less than the amount of loan or advance given by them to the recipient companies-AO declined to rectify the assessments- CIT also held that addition need not be restricted only to the seized material-ITAT on appeal however deleted addition on grounds that the additions made for relevant AY’s u/s 2(22)(e) were not based on any incriminating material found during search operation and same was not sustainable in law-issue was whether the additions made to the income of the assessee for the said AYs u/s2(22)€ was not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search-Held, present appeals concerned AYs, 2002-03, 2005-06 and 2006-07-On the date of the search the said assessments already stood completed-Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed-Question framed by the Court was answered in favour of the assessee and against the Revenue-Revenue’s appeal dismissed.

(b) He relied upon the following views expressed in paragraph 50 of the judgment in the case of CIT v. IBC Knowledge Par (P) Ltd (2016) 69 taxmann.com 108(Ker.):- Section 153C read with section 153A, of the Income-tax Act, 1961 – Assessment of income of any other person ((Recording of satisfaction) – Assessment years 2004-05 to 2006-07 – Whether where no material belonging to a third party was found during a search, but only an inference of undisclosed income was drawn, section 153C would have no application – Held, yes – Whether where Tribunal held that assessment under section 153C was valid despite there being no satisfaction recoded that documents found during search were incriminating in nature and prima facie represented undisclosed income, order of Tribunal was not justified – Held, yes [Paras, 49, 50, 56 & 57] 17. In this regard the Hon’ble ITAT Kolkata has time and again reiterated its view that the
additions in case of the search assessments has to be made on the basis of incriminating
material and any deviation from the same would render the assessment order invalid. Some
of the recent decision of the Hon’ble Jurisdictional Tribunal is discussed hereunder for your
honors ready reference;
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 8
(a) M/s Adhunik Gases Ltd. & Others vs. DCIT CC-XXX, IT9(SS)a No. 47/Kol/2016, IT(SS)A
No. 48/Kol/2015, IT(SS)A No.52/Kol/2015, IT(SS) No.54/Kol/2015, IT(SS)A No.55/Kol/2015,
IT(SS)A No.94-96/Kol/2015 order dated 06.01.2017 (ITAT Kolkata).
In this case it is held that no addition u/s. 68 of the I. Tax Act for the Share Capital can be
made in absence of any incriminating material. The concluding Para of the Honourable
ITAT’s order is as under:
‘9. Having heard the rival submissions perused the material available on record, we are of the view that there is merit in the submissions of the assessee as the propositions canvassed by the Ld AR for the assessee are supported by the judgements of jurisdictional ITAT and Hon’ble High Courts. Ld. AR has pointed out that no incriminating documents was found either during survey or during search procedure. The statement of Shri Naresh Kumar Chhaperia should not be relied on, because he is a double speaking person. The assessment proceedings were completed before the date of search. Besides, the time limit to issue notice u/s. 143(2) was also expired. In order to initiate assessment proceedings u/s. 153A, three should be a new or incriminating document. The assessment which is already completed u/s 143(3)/143(1) should not be reopened. Therefore, considering the scheme of section 132 and section 153A, we are of the view that there should be some new document/incriminating document to invoke the provisions of section 153A. Ld DR for the revenue had pointed out that there is a direct nexus among the companies, which has been established by the statement of Mr. Nearesh Kumar Chhapperia, which cannot be relied on, as he was a double speaking person. Therefore, considering the factual position and the judgements cited by ld. AR, we are of the view that the additions made by the AO u/s 153A and confirmed by the ld. CIT(A) needs to be deleted. Therefore, we delete the addition.’
b) Your Honor’s kind attention is invited to the decision of the jurisdictional tribunal in the case of M/s Tanuj Holdings Pvt Ltd. Vs. DCIT CC-1(2), Kolkata vide ITAT No. 360 to 363/Kol/2015 dated 20.01.2016. The relevant portion of the order is reproduced as under:
‘5.5 We also find that no incriminating materials were found during the search in the respect of the issue of deemed dividend. Hence it cannot be the subject matter of addition in 153C proceedings in respect of completed assessments.
We hold that when an addition could not be made as per law in section 153C proceedings, then the said order cannot be construed as erroneous warranting revision jurisdiction u/s. 263 of the Act..’
(c) Shri, Manish Mundhra Vs ACIT-CC-XXX in ITA-469-470/Kol/2013 Dt. 16.12.2015 (ITAT Kolkata)’ ’10. We also are of the view that in the light of the admitted fact that no incriminating material was found in the course of search of impugned addition could not have been made in the proceedings u/s 153A of the Act. The decision of the ITAT, Delhi Bench in the case of ACIT vs. M/s Delhi Hospital Supply Pvt. Ltd. (supra) followed the decision of Hon’bnle Delhi High Court in the case of Kabul Chawla (supra) supported td he plea of the assessee in this regard….”
(d) ACIT-CC-XXVII Vs. Kanchan Oil Industries Ltd. In ITA-725/Kol/2011 Dt. 09.12.2015 (ITAT Kolkata);
‘6.8 In view of the aforesaid findings and judicial precedent relied upon, we hold that the denial of deduction u/s. 80IB of the Act in the assessment s framed u/s. 153A of the Act for the Asst., Years 2003-04 and 2004-05 without any incriminating materials found during the course of search with respect to those assessment years is not warranted and held as not in accordance with law. Accordingly, the grounds raised by the revenue in this regard for the assessment year 2003-04 and 2004-05 are dismissed.
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DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 9
6.9. We hold that the same decision would be applicable for the disallowance made by the Learned AO u/s. 14A of the Act and accordingly no disallowance u/s. 14A of the Act could be made for the Asst. year 21004-05 by the Learned AO in the assessment framed u/s. 153A of the Act in the absence of any incriminating materials found during the course of search with regard to the relevant assessment year and with regard to the relevant issue. 6.10 With regard to the claim of deduction u/s. 80IB of the Act for the Asst. Years 2007-08 and 2008-09 are concerned, we find that the same is only consequential in nature and once the assessee has been granted deduction u/s. 80IB of the Act for the initial assessment year i.e. Asst. Year 2003-04, the grant of deduction under the said section in respect of the same unit is only academic and hence the assessee is entitled for deduction u/s. 80IB of the Act for the Asst. Years 2007-08 and 2008-09.
Accordingly, the ground raised by the revenue in this regard for the assessment years 2007-08 and 2008-09 are dismissed.’ 6.11 Since the decisions are rendered by us on legal grounds, we4 refrain to give our decision on the merits of the issues.”
(e) Budhiya Marketing Pvt. Ltd. &Ors. Vs., ACIT in ITA Nos. 1545-1546/Kol/2012 [reported in (2015) 44 CCH 0344] dtd. 10.07.2015 (ITAT Kolkata) ‘The issue whether the addition in an assessment framed under section 153A can be made on the basis of the incriminating material found during the course of the search where the assessment has not been abated, has not been considered or decided by this Tribunal. Therefore, this decision, in our opinion will not assist the revenue while disposing of the plea of the assessee that since no incriminating material is found during the course of the search relating to the share capital and the share premium, therefore, no addition can be made while making an assessment under section 153A of the Income Tax Act. No contrary decision was brought to our knowledge by the ld. DR. In view of the aforesaid discussion and the decision of the Hon’ble Special Bench, Bombay High Court, as well as Hon’ble Delhi High Court, we confirm the order of the CIT(Appeals) deleting the addition made in each of the assessment years as we hold that the Assessing Office was not correct in law in making the addition in the assessment made under section 153A read with section 143(3) when no incriminating material was found during the course of the search in respect of the addition made by him. We accordingly partly allowed the cross objections taken by the assessee.
(f) ACIT Vs. Shanti Kumar Surana & Ors. In IT(SS)A Nos. 12 to 20 and CO Nos. 13 to 20 (reported in 44 CCH 241) order dtd. 22.06.2015 (ITAT Kolkata) ‘In view of the facts in entirely and the legal principles enunciated by Hon’ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd., supra, of Hon’ble Allahabad High Court in the case of Shalla Agarwal, surpa and Mumbai Special Bench decision in the case of All Cargo Global Logistics, supra, we are of the view that there is no incriminating material found during the course of search in the present case for these assessment years except the statement of one Shri Sambvhu KR More, as admitted by the AO in his remand report dated 23.09.2011 and despite number of opportunities revenue could not produce any incriminating material before the search and the assessments are already completed for these assessment years originally, the assessments framed u/s. 153A of the act is in valid and hence, quashed.’
(g) Trishul Hitech Industries Ltd. Vs. DCIT-CC-XI, IT(SS)A 84-86/Kol2011 dtd. 24.09.2014 (ITAT Kolkata);
“9.5 from, the above various discussions and precedence we are of the considered view that assessment in the impugned assessment years have been completed u/s. 143(3) of the Act. Hence the assessment for the concerned assessment year does not abate. Hence dehorse any IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 10 incriminating material, AO cannot made any addition in these cases. Accordingly we hold that assessment u/s. 153C of the Act in these cases dehorse any incriminating material is not sustainable. Hence we set aside the orders of the authorities below and decide the issue in favour of assessee. Since we are quashing the appeals on jurisdiction we are not adjudicating the merits of the appeal as the same is now only of academic interest.”
(h) DCIT Vs. Merlini Project Ltd. IT(SS)A No. 138/Kol/2011 Dt. 14.11.2013 (ITAT Kolkata);
“We have heard the rival sub missions and perused the material available on record. The undisputed fact about this case is that the original assessment in this case was completed under section 143(3) in which deduction was allowed in entirety under section 80IB of the Act inter alia on the amount of interest income. It is also undisputed that no incriminating material was found during the course of search casting doubt about the allowability or otherwise of such deduction under section 80IB. This fact has been fairly admitted by ld. DR during the course of proceedings before us as well.
5. The Mumbai Bench of the Tribunal in the cases of ACIT vs. Pratibha Industries (201`3) 141 ITD 151 (Mm) has held, inter alia, that having done original assessment u/s.143(3), if no incriminating material is found during the course of search, then it is not permissible to make any addition in the assessment under section 153A pursuant to search action. The Special Bench of the Tribunal in the case of All Cargo Global Logistic Limited Vs. DCFIT (2012) 137 ITR 287 (SB) (Mum) has also held to the same extent. In view of the foregoing discussion, we are of the considered opinion that no exception can be found to the view taken by CIT (Appeals) for deciding this issue in assessee’s favour.
6. Before parting with this mate, we want to make it clear that our decision is based in the backdrop of the facts that the deduction under section 80IB could not have been tinkered with because not incriminating material was found during the course of search on this issue when original assessment granting deduction on this issue was completed under section 143(3). We have not expressed any opinion on the merits of the case about the allolwability or otherwise of deduction under section 80IB on interest income arising in the present facts and circumstances.
7. In the result, the appeal field by the Revenue stands dismissed.”

(i) LMJ International Ltd. Vs. SDCIT (2008) 119 TTJ (Kol) 214, (ITAT Kolkata);
“Where nothing incriminating is found in the course of search relating to any assessment years, the assessments for such years cannot be disturbed; items of regular assessment cannot be added back in the proceedings under s. 153C when no incriminating documents were found in respect of the disallowed amounts in the search proceedings.

1.8 when the AO completed the impugned assessment there was the reported decision of ITAT, Special Bench, Mumbai dated 06.07.2012 in All Cargo Logistics Ltd. vs. DCIT (2012) 137 ITD 287 (Mumbai) (SB). In this case the Special Bench referred to the Allahabad High Court’s Order dt. 25.11.2011 in CIT Vs. Shaila Agarwal (2012) 346 ITR 130 (All) where it was held that u/s. 1453A/153C the AO will proceed for re-assessment if as a result of search some undisclosed income is found to have escaped assessment. The other decision referred to was the decision of ITAT, Jodhpur Bench in Suncity Alloys (P) Ltd. Vs ACIT (2009) 124 TTJ 674) (Jd) [which decision of the ITAT Jodhpur Bench was affirmed later in 2013 by Rajasthan High Court in IT appeal No.54, 6 to 63, 66 & 67 of 2011) reported under the citation Jai Steel 9India) Vs ACIT (2013) 259 CTR 281 (Raj)] IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 11 1.9 In CIT V, Shaila Agarwal ((2012) 346 ITR 130 (All), the Allahabad High Court at para-16 of their order dt. 25.11.2011 observed. “if as a result of search, some undisclosed income is found to have escaped assessment, the AO may have to initiate steps for re-assessment….” (emphasis supplied). though primarily the issue before the court was the meaning and scope of “abatement” of the proceedings pending on the date the search was initiated i.e., the words used in the language of sec. 153A, in reading the court’s order one cannot miss the court’s observation that initiation of proceedings u/s.153A as conditional i.e. initiation of such proceedings can be made only where the search operation has unearthed undisclosed income.

1.10 In Jai Steel (India) vs. ACIT (2013) 259 CTR 281 (Raj), a search u/s 132(1) was conducted resulting in seizure of several incriminating documents. Notice u/s. 153A was issued. In the return field in response to the notice u/s.153A, the assessee, inter alia, claimed deduction of Sales-tax incentive – a claim that was not made in the original return filed u/s. 139(1). The contention of the assessee was that such claim can be made as the proceeding u/s.153A was overriding all proceedings earlier taken overall. The decision of the Court was against the assessee, in coming to the said conclusion the Rajasthan High Court applying the decision of Allahabad High Court in the case of Smt. Shaila Agarwala and referring to the decision of the Delhi High Court in the case of Anil Kumar Bhatia (2013) 352 ITR 493 (Delhi), dealt at length with the meaning, scope and effect of Sec. 153A. The order of the Court was summed up at page 281 of the report (CTR) as under:-
“Requirement of assessment or re-assessment u/s. 153A has to be read in the context of Sec. 132 or Sec. 132A inasmuch as in case nothing incriminating is found on account of search or requisition, the question of re- assessment of the concluded assessments does not arise. Thus, the underlying purpose of taking assessment of total income under section 153A is to assess income which was not disclosed or would not have been disclosed….xxxxxx. Thus, the argument of the assessee’s counsel that once a notice under Sec. 153A is issued the assessment for six years are at large both for the AO and the assessee has not warrant in law. In a case where nothing incriminating is found, though Sec. 153A would be triggered and assessment or re-assessment to ascertain the total income is required to be done. The same would not result in any addition and the assessments made earlier may have to be reiterated argument of the counsel (of the assesse) that the AO is free to disturb the income, expenditure or deduction de horse any incriminating material while making the assessment under sec. 153A is not borne out from the scheme of the said provisions…..xxxxxxxx. A harmonious construction of the entire provisions of sec. 153A would lead to an irresistible conclusion that the word “assess” has been used in the contest of abated proceeding and “reassess” has been used for completed assessment proceedings which do not abate as they are not pending on the date of initiation of the search or making of requisition and can be tinkered only on the basis of the incriminating material found during the course of the search or requisition of documents. Therefore, it is not open to the assessee to seek deduction o claim relief not claimed by it in the original assessment which already stands competed, in an assessment under sec. 153A made in pursuance of search or requisition.”
The contents of para 26 & 29 of the court’s order are summed up at page- 263 of the report (CTR) as follows:-

The case has to be considered at best similar to a case where in spite of a search and / or requisition, nothing incriminating is found. In such a case though Sec. 153A would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 12 same would in that case not result in any addition and the assessment passed earlier may have to be reiterated. The provisions Sec. 153A to 153C cannot be interpreted to be a further innings for the AO and / or the assessee before the provisions of Sec. 139 (return of income), 139(5) (revised return of income), 147 (income escaping assessment and 263 (revision of order) (emphasis supplied) At para 28 of the order, their lordships enlarged upon the interpretation of Sec. 153A by the Delhi High Court in the case of Anil Kumar Bhatia (supra). To quote “The said judgment (Anil Kumar Bhatia) also in no uncertain terms holds that the reassessment of the total income of the completed assessment has to be made taking note of the undisclosed income, if any, unearthed during the search and the income that escaped assessment is required to be clubbed together with the total income determined in the original assessment and assessed as the total income.”

As the Rajasthan High Court observed in their order, where the outcome of the search does not unearth any undisclosed income, the outcome of the proceedings u/s. 153A will only be a re-iteration of the income that was already assessed but re- opened by the trigger of the search u/s. 132 or requisition u/s 132A. AT Para 29 of the order, the High Court ruled: “The argument….. that the AO is also free to disturb income expenditure or deduction de hors (unconnected with) the incriminating material, while making assessment under s. 153A of the Act is also not borne out from the scheme of the said provision which…..is essentially in the context of search and/or requisition.” (meaning supplied) 1.11 Thus, the inferences that clearly emerge from a reading together of the decisions of the Tribunals and the High Court of Allahabad and High Court of Rajasthan are:
First, assessment/reassessment of income u/s 153A is strictly conditioned by thee unearthing of undisclosed income as a result of action u/s 132 and/or 132A.
Second, where action u/s.132 and/or 132A does not result in discovery of any undisclosed income, though such action will rigger reopening u/s. 153A, the proceeding u/s. 153A will result in the reiteration i.e. the repetition of the already assessed income.
Third, as was ruled at para 29 of the order in the case of Jai Steel (India) (supra), the AO in the reassessment u/s. 153A cannot disturb either the income or expenditure or deduction unless such action/s is warranted by the discovery/detection of undisclosed income of the assessee in course of the search operation u/s. 132 and/or 132A.

1.12 The Hon’ble Supreme Court in the case of Parashuram Pottery Works Co. Ltd. Vs. ITO (1977) 106 ITR 1(SC) observed as under:
“it has been said that the taxes are the price that we pay for civilization, if so, it is essential that those who are entrusted with the task of calculation and realizing that price should familiarize themselves with the relevant provisions and become well-versed with the law on the subject. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue. At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that state issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi judicial controversies as it must in other spheres of human activity.”
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1.13 The Holn’ble Supreme Court in the case of CIT vs. Sun Engineering Works (P) Ltd. (1992) 198 ITR 297 (SC) held that the scope of reassessment is only with regard to the income escaping assessment. The mattes which have attained finality in original assessment cannot be re-agitated in reassessment proceedings. The assessee as well as the AO is precluded from re-agitating the issue in reassessment proceedings which has attained finality inn original assessment proceedings. The jurisdiction of the AO is ousted and is a “funclus officio” so far as the original assessment is concerned. Therefore, re-agitating the concluded issues without any incriminating material found in the course of search relating thereto cannot be considered in proceedings u/s. 153A of the Act.

Further, the assessee for its case also relies on the decision of the Hon’ble Allahabad High Court in the case of Smt. Shaila Agarwala and on the decision of Hon’ble Rajasthan High Court in the case of Jai Steel (India).

1.14 Similar view has been taken by various other High Courts and ITAT on the same issue that no additions can be made without any incriminating seized material in case of completed assessment u/s. 143(3) or deemed assessment u/s 143(12) of the Act.

1.15 CIT v. Lancy Constructions (2016) 237 Taxman 728 (Karn.) (HC) S. 1153A: Assessment – Search – Accounts which were duly verified during regular assessment of assessee could not be re-appreciated merely because further a search was conducted in premises of assessee as same would amount to reopening of concluded assessment [S.143(10)]. Assessments had been completed under section 143(3) and under section 143(1). Thereafter, a search was conducted in the premises of the assessee. The AO made certain additions after holding that the accounts of the assessee did not tally with the corresponding accounts of the creditors and debtors. The CIT(A) allowed the assessee’s appeal, after concluding that no incriminating documents were found during the course of search, on the basis of which additions had been made by the AO. This finding was upheld by the Tribunal.
On appeal, the High Court observed that there were specific findings of fact recorded by both the CIT(A) and the Tribunal that there were no incriminating documents found during the course of search, on the basis of which the additions had been made by the AO and that the accounts were submitted by the assessee at the time of regular assessment which were duly verified and accepted by the AO in the absence of any incriminating documents having been found, if the assessment was allowed to be reopened the same would amount to the revenue getting a second opportunity to reopen a concluded assessment, which is not permissible. The High Court held that, merely because a search was conducted in the premises of the assessee would not entitle the revenue to initiate the process of reassessment for which there was a separate procedure prescribed in the statute. It was only when the conditions prescribed for reassessment were fulfilled that a concluded assessment could be reopened. The very same accounts which were submitted y the assessee on the basis of which assessment had been concluded, could not be re-appreciated by the AO merely because a search had been conducted in the premises of the assessee (AY 2005-06 to 2008-09) 1.16 In Sanjay Aggarwal vs. DCIT (2014) 40 CCH 0370 (Del T Drib), [order dt. 16.06.2014 in ITA No.3184/Del/2013] the Delhi Tribunal held that no addition can be made for any Assessment Year u/s 153A of Income Tax Act, 1961, assessment for which is not pending on date of search, unless any incriminating material is found in course of search.
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 14 1.17 In Meghman Organics Ltd. Vs DCIT (2010) 129 TTJ (Ahd) 255, Ahmadabad Bench of the Tribunal held that the AO is precluded from re-agitating the assessments which are not pending.

1.18 PCITX v. Mitsuit and Co. India P.Ltd. (2016) 384 ITR 360 (Delhi)(HC) S.153A: Assessment-Search-No incriminating material found for particular year- Assessment is not permissible.
Dismissing the appeal of revenue, the Court held that; the Tribunal was right in holding that there had to be incriminating material recovered during the search qua the assessee in each of the years for the purposes of framing an assessment under section 153A of the Act (AY 1998-99, 1999-2000) 1.19 Om Shakthyu Agencies (Madras) (P) Ltd. V. Dy. CIT (2016) 157 ITD 1062/177 TTJ 419 (Chenai) (Trib.) S. 153A: Assessment – Search- Notice – issued for the assessment year which has been completed – No incriminating material found during the course of search action – Assessment under section 153A had to be made only as per original assessment which was made under section 1543(1) or under section 143(3) [S.132, 143(1), 143(3)] Where pursuant to search proceedings, notice under section 153A was issued, since assessment in respect of some assessment years covered by said notice had already been completed and, moreover, no incriminating material was found during search, assessment for those assessment years could be made only as per original assessment under section 1143(1) or 143(3) (AY 2005-06 to 2011-12) 1.20 Jaipuria Infrastructure Developers v ACIT (Delhi)(Trib); (2016) 47 CCH, 0311 (Delhi ITAT) Addition-Addition on account of bogus expenses – Assessee filed return of income for AY 2006-07 declaring income of Rs.2,58,59,845 in response to notice u/s. 153-A in order to verify genuineness of transactions, summons were issued to aforesaid parties to produce details of transactions, value and TDS with assessee company for last six years along with their ledger account and copies of agreement-However summons issued to various persons were received back unserved-Despite directions, assessee failed to produce aforesaid parties-even notices issued u/s./s 133(6) to aforesaid parties were received back unserved with remarks “incomplete address, without house number”- During assessment proceedings, one of Directors of assessee company got recorded statement and failed to produce parties for examining to prove genuineness of transactions-Consequently, amount of Rs.2,34,54,000 was treated as bogus expenses and added to total income of assessee-CIT(A) party allowed Appeal of assessee- Held, so far as assessment for AY 2006-07 was concerned, assessment was though completed u/s. 143(1) but undisputedly no notice was issued u/s. 143(2) within period of limitation on date of search, meaning thereby no assessment was pending in this case as on date of search i.e. 27.03.2012 and question of abatement did not arise and in these circumstances-Addition could be made on basis of incriminating material unearthed during search only-Addition made in both cases u/s. 153A red with s. 143(3) was not sustainable in eyes of law, hence deleted- Assessee’s Appeal allowed. 1.21 Jadu Jewellers & Manufacturers 9(P) Ltd. v. ACIT (2016) 130 DTR 17 (Jaipur)((Trib.) S. 153A; Assessment-Search – Not issued notice with in prescribed limit-Absence of incriminating material, order was held to be bad in law.[S.143(2)].
AO having not issued notice u/s 143(2) within the prescribed time limit pursuant to the return filed by the assessee under s. 139(1), no proceeding was pending before the AO on the date of initiation of search which had abated, and the Revenue IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 15 authorities having found not incriminating document during the course of search the impugned order passed u/s/s 153A r.w.s. 143(3) is void ab initio (AY 2008-09) 1.22 To sum up, the appellant for its case relies upon the decisions of various judicial forums as listed out above in this submission in addition to the discussion made in the preceding Paragraphs to conclusively submit that the impugned order of re- assessment was null and void in law for want of inherent jurisdiction u/s. 153A. The order completely fell outside the provision of Sec. 153A. The AO’s order was in flagrant violation of the established judicial rulings, as detailed in this submission. From the discussion made hereinabove, it is established that the Hon’ble Jurisdictional High Court and Tribunal hold a consistent view that the addition in case of search assessments should be made on the basis of incriminating material it is further submitted that the assessment u/s. 153A made by the AO fell outside the jurisdiction vested in him under the said Section. When the order u/s. 153A/143(3) was passed, a number of authoritative decisions had already been reported to the effect that the assessment / reassessment u/s. 153A is strictly restricted to the undisclosed income, if any, of the assessee unearthed during the search operation; that Sec. 153A does not empower the AO to do a de novo assessment; that is, no fresh or a second time views on any receipt or expenditure can be taken u/s. 153A unless such action are warranted by the incriminating material found/seized during the search operation.
1.23 It is further submitted that the AO had done reassessment u/s. 153A as if he was exercising power u/s. 147 of the Act. This was blatantly illegal because the non-obstante clause in Sec. 153A excludes from its scope and ambit several provisions of the Act including Sec. 147.

1.24 The impugned order u/s 153A when filtered through the ratios of the judicial rulings discussed at the preceding paragraphs of this submission, collapses to the ground like a pack of nine-pins. It is settled that reopening of an assessment u/s. 153A can be automatically triggered by an action u/s. 132 or 132A but the search or requisition must bring to surface incriminating material of undisclosed income to make addition to the already assessed income. When the action u/s. 132 or 132A does not unearth incriminating material indicating a case of undisclosed income no addition can be made to the already assessed income u/s. 153A. Further, where addition of undisclosed income to the already assessed income is found not feasible on ground of evidence and / or law, the completed assessment will have to be reiterated, that is, the already assessed income will be repeated.

1.25 The AO, in the course of the reassessment proceedings, rejected the contention of the assessee that the items of regular assessment cannot be added back in the proceedings u/s.153A when no incriminating documents were found in the search proceedings. It is further submitted that there is no change in the relevant provisions of law and that no new facts or material or evidence in consequence to the search has been brought on record and so, the return already accepted by the department cannot be disturbed by the AO in the search assessment u/s. 153A. 1.26 In view of the aforesaid discussion & in the facts of the instant case and judicial pronouncements discussed hereinabove, it is, therefore, prayed that the impugned order may kindly be vacated as the addition made u/s. 153A cannot be sustained in the eyes of law in the re-assessment proceedings in the absence of any incriminating seized material document.”

5. I have considered the findings of the AO in the assessment order and the written submission as well as different case laws brought on record by the AR. The main argument of the AR is that additions made by the AO in the assessment order passed u/s 153A/143(3) are not based on any incriminating documents/papers seized during the search operation. The AR has brought on record many case laws IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 16 decided by the jurisdictional Kolkata bench of ITAT and jurisdictional Calcutta High Court on this issue. Calcutta High Court has time and again reiterated its view that the additions in case of the search assessments has to be made on the basis of incriminating material., Some of the recent decision of the Hon’ble jurisdictional High Court are discussed hereunder.

PCIT-2, Kolkata Vs. Salasar Stock Broking Limited (ITAT No. 264 of 2016) dated 24.08.2016: (Calcutta) In this case, the Honorable High Court observed that the Ld. ITAWT, Kolkata was of the opinion that the assessing officer had no jurisdiction u/s. 153A of the IT Act to reopen the concluded cases when the search & seizure did not disclose any incriminating material. In taking the aforesaid view, the Ld. ITAT relied upon the judgments of Delhi High Court in the case of CIT(A) vs. Kabaul Chawala in ITA No. 7007.2014 dated 28.08.2014. The court also observed that more or less an identical view has been taken by this Bench in ITA No.661/2008 in the case of CITA Vs. Veerpraabhu Marketing Limited. Considering the above facts, the Honorable High Court did not admit the appeal filed by the Department.

“CIT. Kolkata-III Vs. Veerprabhu Marketing Ltd.[2016] 73 taxmann.com 149 (Calcutta);
In this case the Hnorable Calcutta High Court expressed the following views: “We are in agreement with the views of the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A.
In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances.” The Hon’ble Calcutta High Court in the above cases relied on the following judgments.

CIT Vs Kabul Chawla (2016) 380 ITR 0573 (Del) Search and seizure – News scheme of assessment in search cases- Search was carried out u/s. 132 on a leading real estate developer operating all over India and some of its group companies – Search was also carried out in the premises of the assessee-Pursuant to the search a notice u/s. 153A(1) was issued to assessee and thereafter he field returns-As on the date of the search, no assessment proceedings were pending for relevant AYs and for said AYs, assessments was already made u/s.143(1), assessee filed an application u/s. 154 seeking rectification of the assessments on the ground that the accumulated profits of the companies paying the dividend were less than the amount of loan or advance given by them to the recipient companies- AO declined to rectify the assessments-CIT also held that addition need not be restricted only to the seized material-ITAT on appeal however deleted addition on grounds that the additions made for relevant AY’s u/s. 2(22(e) were not based on any incriminating material found during search operation and same was not sustainable in law- Issue was whether the additions made to the income of the assessee for the said AYs u/s. 2(22)(e) was not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search-Held, present appeals concerned AYs, 2002-003, 2005-06 and 2006-07-On the date of the search the said assessments already stood completed-Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed-quest ion framed by the Court was answered in favour of the assessee and against the Revenue-Revenue’s appeal dismissed.
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6. I further find that in this regard the Hon’ble ITAT Kolkata has time and again reiterated its view that the additions in case of the search assessments has to be made on the basis of incriminating material and any deviation from the same would render the assessment order invalid. Some of the recent decision of the Hon’ble jurisdictional Tribunal is discussed hereunder M/s Adhunik Gases Ltd & Others vs. DCIT CC-XXXX, IT(SS)A No. 47/Kol/2015, IT(SS)A No.49/Kol/2015, IT(SS)A No.50-22/Kol/2015, IT(SS)A No.54/Kol/2015, IT(SS) No.55/Kol/2015, IT(SS) No.94-96/Kol/2015 order dated 06.01.2017 ITAT Kolkata) In this case it is held that no addition u/s. 68 of the I. Tax Act for the Share capital can be made in absence of any incriminating material. The concluding para of the Hono ITAT’s order is as under.
Having heard the rival submissions, perused the material available on record, we are of the view that there is merit in the submissions of the assessee, as the propositions canvassed by the Ld. AR for the assessee are supported by the judgments of jurisdictional ITAT and Hon’ble High Courts. Ld. AR has pointed out that no incriminating documents was found either during survey or during search procedure. The statement of Shri Naresh. Kumar Chhaperia should not be relied on, because he is a double speaking person. The assessment proceedings were completed before the date of search. Besides, the time limit to issue notice u/s 143(2} was also expired. In order to initiate assessment proceedings u/s 153A, there should be a new or incriminating document. The assessment which is already completed u/« 143(3)/143(1) should not be’ reopened. Therefore, considering the scheme of section 132 and section 153AJ we are of the view that there should be some new document/incriminating document to invoke the provisions of section. 153A. Ld. DR for the revenue had pointed out that there is a direct nexus among the companies, which has been established by the statement of Mr. Naresh Kumar Chhapperia, which cannot be relied on, as· he was a double speaking person. Therefore, considering the factual position and the judgments cited by ld. AR, we are of the view that the additions made by the AO u/ s 153A and confirmed by the ld. CIT(A) needs to be deleted. Therefore, we delete the addition,”

Furthermore, the decision of the jurisdictional tribunal in the case of M/s Tanuj Holdings Pvt Ltd Vs. DCIT CC-1(2), Kolkata vide ITAT No. 360 to 363/Kol/2015 dated 20.01.2016 is important. The relevant portion of the order is reproduced as under:

We also find that no incriminating materials were found during the search in the respect of the issue of deemed dividend. Hence it cannot be the subject matter of addition in 153C proceedings in respect of completed assessments. We hold that when an addition could not be made as per law in section 153C proceedings, then the said order cannot be construed as erroneous warranting revision jurisdiction u/s 263 of the Act.”

Shri. Manish Mundhra Vs. ACIT-CC-XXX in ITA-469-470/Kol/2013 Dt. 16.12.2015 IITAT Kolkata;
We also are of the view that in the light of the admitted fact that no incriminating material was found in the course of search the impugned addition eau ld not have been made in the proceedings u/ s 153A of the Act. The decision of the ITAT, Delhi Bench in the case of ACIT vs M/ s. Delhi Hospital Supply Put. Ltd. (supra) followed the decision of Hon’ble Delhi High Court in the case of Kabul Chaiola (supra) supports the plea of the assessee in this regard ….. ”
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ACIT-CC-XXVII Vs Kanchan Oil Industries Ltd. in ITA-725/Kol/2011 Dt. 09.12.2015 [ITAT Kolkata In view of the aforesaid findings and judicial precedent relied upon, we hold that the denial of deduction u/s 80IB of the Act in the assessments framed u/s 153A of the Act for the Asst Years 2003-04 and 2004·05 without any incriminating materials found during the course of search with respect to those assessment years is not warranted and held as not in accordance with law. Accordingly, the grounds raised by the revenue in this regard for the assessment year’s 2003·04 and 2004-05 are dismissed.

We hold that the same decision would be applicable for the disallowance made by the Learned AO u/ s 14A of the Act and accordingly no disallowance u/ s 14A of the Act could be made for the Asst Year 2004-05 by the Learned AO in the assessment framed u/s 153A of the Act in the absence of any incriminating materials found during the course of search with regard to the relevant assessment year and with regard to the relevant issue.

With regard to the claim of deduction u/ s 801B of the Act [or the Asst Years 2007-08 and 2008-09 are concerned, we find that the same is only consequential in nature and once the assessee has been granted deduction u/ s 80IB the Act for the initial assessment year i.e. Asst Year 2003-04, the grant of deduction under the said section in. respect of the same unit is only academic and hence the assessee is entitled for deduction u/s 801B of the Act for the Asst Years 2007-08 and 2008-09.

Accordingly, the ground raised by the revenue in this regard for the assessment years 2007-08 and 2008-09 are dismissed.”

Since the decisions are rendered by us on legal grounds, we refrain to give our decision on the merits of the issues.”

Budhiya Marketing Pvt. Ltd. & Ors. Vs. ACIT in ITA Nos- 1545-1546/Kol./2012 [reported in 1201S] 44 CCH 03441dt. 10.07.2015 ITAT Kolkata “The issue whether the addition in an assessment framed under section 153A can be made on the basis of the incriminating material found during the course of the search where the assessment has not been abated, has not been considered or decided by this Tribunal. Therefore, this decision, in our opinion will not assist the revenue while disposing of the plea of the assessee that since no incriminating material is found during the course of the search relating to the share capital and the share premium, therefore, no addition can be made while making an assessment under section 153A of the Income Tax Act. No contrary decision was brought to our knowledge by the Id. D.R. In view of the aforesaid discussion and the decision of the Hon’ble Special Bench, Bombay High Court, as well as Hon’ble Delhi High Court, we confirm the order of the CIT(Appeals) deleting the addition made in each of the assessment years as we hold that the Assessing Officer was not correct in law in making the addition in the assessment made under section 153A read with section 143(3) when no incriminating material was found during the course of the search in respect of the addition made by him. We accordingly partly allowed the Cross Objections taken by the assessee.”

ACIT Vs. Shanti Kumar Surana & Ors. in IT(SS}A Nos. 12 to 20 and CO Nos. 13 to 20 (reported in 44 CCH 241) order dt. 2Z.06.2015 [ITAT Kolkata] “In. view of the facts in entirety and the legal principles enunciated by Hon’ble Bombay High Court in the case of Continental Warehousing Corporation IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 19 (Nhava Sheva) Ltd., supra, of Hon’ble Allahabad High Court in the case of Shaila Agarwal, supra and Mumbai Special Bench decision in the case of All Cargo Global Logistics, supra, we are of the view that there is no incriminating material found during the course of search in the present case for these assessment years, except the statement of one Shri Sambhu Kr More, as admitted by the AO in his remand report dated 23.09.2011 and despite number of opportunities revenue could not produce any incriminating material before the Bench and the assessments are already completed for these assessment years originally, the assessments framed u/ s. 153A of the Act is in valid and hence, quashed.”
Trishul Hitech Industries Ltd Vs. DCITMCC-XI. IT(SS)A84-86/Kol/2011 dt. 24.09.2014 (ITAT Kolkata);
From the above various discussions and precedence we are of the considered view that assessment in the impugned assessment years have been completed u/ s 143(3} of the Act. Hence the assessment for the concerned assessment year does not abate. Hence de horse any incriminating material, AO cannot made any addition in these cases. Accordingly we hold that assessment u/s 153C of the Act in these cases de horse any incriminating material is not sustainable. Hence we set aside the orders of the authorities below and decide the issue in favour of assessee. Since we are quashing the appeals on jurisdiction we are not adjudicating the merits of the appeal as the same is now only of academic interest. ”

DCIT Vs. Merlin Project Ltd. IT(SS)A No-138/Kol/2011 Dt. 14.11.2013 (ITAT Kolkata) “We have heard the rival submissions and perused the material available on record. The undisputed fact about this case is that the original assessment in this case was completed under section 143(3) in which deduct ion was allowed in entirety under sect ion 80IB of the Act inter alia on the amount of interest income. It is also undisputed that no incriminating material was found during the course of search casting doubt about the allowability or otherwise of such deduction under section 80. This fact has been fairly admitted by Id. D.R. during the course of proceedings before us as well.

The Mumbai Bench of the Tribunal in the case of ACIT vs. Pratibha Industries (2013) 141 ITD 151 (Mum.) has held, inter alia, that having done original assessment u/s 143(3), if no incriminating material is found during the course of search, then it is permissible to make any addition in the assessment under section 153A pursuant to search act ion. The Special Bench of the Tribunal in the case of All Cargo Global Logistics Limited vs. DCIT (2012) 137 ITD 217 (SB)(Mum.) has also held to the same extent . In view of the foregoing discussion, we are of the considered opinion that no exception can be found to the view taken by CIT(Appeals) for deciding this issue in assessee’s favour.

Before parting with this matter, we want to make it clear that our decision is based in the backdrop of the facts that the deduct ion under sect ion 80IB could not have been tinkered with because no incriminating material was found during the course of search on this issue when original assessment granting deduct ion on this issue was completed under sect ion 143(3). We have not expressed any opinion on the merits of the case about the allow ability or otherwise of deduct ion under 80IB on interest income arising in the present facts and circumstances. In the result, the appeal filed by the Revenue stands dismissed.”

LMJ International Ltd Vs. DCIT12008) 119 TTJ (Kol) 214. (ITAT Kolkata);
“Where nothing incriminating is found in the course of search relating to any assessment years, the assessments for such years cannot be disturbed;
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items of regular assessment cannot be added back in the proceedings under s. 153A/153C when no incriminating documents were found in respect of the disallowed amounts in the search proceedings.

Furthermore, The Hon’ble Supreme Court has dismissed department’s special leave petition(SLP) against the judgment dt.06-07-2015 of the Delhi High Court in ITA No.369 of 2015 where the High Court held that no substantial question of law arose since there was factual findings that no incriminating evidence relate to share capital issued was found during the course of search. The AR has filed a written submission on this issue which is as under:
“Whether section 68 could be invoked where no incriminating evidence related to share capital found. 7-12-2015 : Their Lordships MADAN B LOKUR and S A BOBDE JJ dismissed the Department’s special leave petition against the judgment dated July 6, 2015 of the Delhi High Court in ITA No.369 of 2015, whereby the High Court held that no substantial question of law arose since there was a factual finding that no incriminating evidence related to share capital issued was found during the course of search and that the Assessing Officer was not justified in invoking section 68 of the Act for the purposes of making additions on account of share capital Pr. CIT v Kurele Paper Mills P Ltd, SLP (C) No.34554 of 2015”.

7. The AR has also brought on record the case law of CIT, Kolkata-Ill vs Veerprabhu Marketing Ltd 12016] 73 taxmann 149 Kolkata In this case The Honorable Calcutta High Court expressed the following views:
“We are in agreement with the views of the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances.”

The Hon’ble Kolkta High Court in the above cases relied on the following judgments. CIT Vs. Kabul Chawla (2016) 380 ITR 0573 (Del) Search and seizure-New scheme of assessment in search case- Search was carried out u/s 132 on a leading real estate developer operating all over India and some of its group companies-Search was also carried out in the premises of the assessee- Pursuant to the search a notice u/s 15A(1) was issued to assessee and thereafter he filed returns-As on the date of the search, no assessment proceedings were pending for relevant AYs and for said AYs, assessments was already made u/s 143(1), assessee filed an application u/s 154 seeking rectification of the assessments on the ground that the accumulated profits of the companies paying the dividend were less than the amount of loan or advance given by them to the recipient companies- AO declined to rectify the assessments-CIT also held that addition need not be restricted only to the seized material-ITAT on appeal however deleted addition on grounds that the additions made for relevant AY’s u/s 2(22)(e) were not based on any incriminating material found during search operation and same was not sustainable in law- Issue was whether the additions made to the income of the assessee for the said AYs u/s 2(22)(e) was not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search-Held, present appeals concerned A IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 21 Ys, 2002-03, 2005-06 and 2006·07-On the date of the search the said assessments already stood completed-Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed- Question framed by the Court was answered in favour of the assessee and against the Revenue—-Revenue’s appeal dismissed It was also informed/brought on record that the order passed by the Hon’ble Calcutta High Court has attained finality as the CBDT in it’s letter No.ADG(L&R)-II/EZ/ Pr.CIT(C)-1/Kolkata/ 1184/20 16/729 dt.07/08-02-2017 has intimated that the proposal to file SLP in above case has not been approved by the Board”.

Apart from above mentioned case laws brought on record, the AR has also filed copies of appeal orders in different cases passed by my three esteemed predecessors on the same issue wherein they have discussed in length and arrived at conclusion that additions in search assessments uj s 153A/ 153C cannot be made except on the basis of the incriminating material found in the search. (reference
a) appeal no.442jCC-3(1)/CIT(A)-21/14-15, date of order 05-12-2014,
b) appeal no.440/CC-3(l)/CIT(A)-21/14-15, date of order 15-01-2015 c} appeal no.547/CC-3(1)/CIT(AJ-21/14-5, date of order 10-04-2015
d) appeal no.129/CC-XVII/CIT(A)-I/09-10, date of order 23-09-2010 e] appeal no.292/CC-VI/CIT(A)-C-VI/11-12, date of order 23-10-2013.

I have considered the findings of the AO in the assessment order, different case laws brought on record and appeal orders passed by my predecessors on this legal issue. I find from the assessment order that during the search and seizure operations conducted u/s 132 of the I T Act, 1961, incriminating documents/papers were not seized. At least, additions made by the AO in the assessment order passed u/s 153A/143(3) are not based on any incriminating documents/papers seized during the search operation. It would also not be out of context to mention here that in this case, on the date of search, no assessment for this year was pending. Therefore, keeping in view the ratio decided by the Jurisdictional bench of Kolkata Tribunal in cases referred above and the ratio decided by the Hon’ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (supra) in the light of CB DT’s decision of not filing SLP in this case in the Supreme Court and keeping in view the Apex Court’s decision to dismiss SLP on similar issue in the case of PrCIT vs Kurele Paper Mills Pvt Ltd SLP (C) No.34554 of 2015 dt.07-12-2015, I am of this view that in order to maintain judicial continuity on this issue and respectfully following the ratio decided by the Hori’ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (supra), assessee’s appeal on grounds no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit.”
4. Learned CIT-DR has filed before us a detailed set of written
submissions reading as under:-
• The assessee company is the one of the group companies of the Rashmi group. During the financial year 2007-08 relevant to the assessment year 2008-09, the assessee raised share capital of Rs.2, 69 ,00, 000/-(Capital of Rs.53,80,000/- and premium of Rs.2,15,20,000/-) from 14 companies by issuing 5,38,000 equity shares of Rs. 10 each on premium of Rs.40/- per share]. During the Search operation, the detailed Cash Trails were prepared [copy enclosed] it was found that the cash deposited in some Jamakharchi Companies passed through several layers of other Jamkharchi Companies and ultimately received by M/s Image Vinimay (P) Ltd.
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 22
• Notice u/s 131 issued on various dates to the directors of the: subscriber companies.
In some cases the same returned unserved with the: remarks No Such Company . • The A/R of the assessee in respect of unserved summons u/s 131 submitted before the AO that these addressees of the summons were no longer shareholders of the: Group Companies and therefore the: assessee had no control over them and he was unaware of their whereabouts.
• During the course of search & seizure operation in the case of the assessee the statements of the entry operators (Mithlesh Kumar Mishra, Gopal Maity, Murali Kumar Mishra) as well as of the dummy directors of the companies controlled by the entry operators were recorded u/s. 131 of the Income Tax Act,1961 by the DDIT (Inv.), Kolkata. All the directors categorically stated that they were basically dummy directors and the control of the companies lie with the entry operators. All of them stated under oath that they had provided accommodation entries to the assessee.

• It is also submitted that Search & Seizure and Survey operation were conducted in the cases of various entry operators such as Shri Jivendra Mishra, Shri Beni Prasad Lahoti and Shri Hari Prasad Rathi, Shri Raghwendra Kumar and Shri Amit Kumar Shyamsukha. During the said operations, statements were recorded wherein they admitted that they had provided accommodation entry in the form of Share capital and Share premium to M/s. Rashmi Cement Ltd., M/s. Rashmi Metaliks Ltd . M/s.,Orissa Metaliks Pvt. Ltd., Sursadhana Sponge and Ispat Pvt. Ltd., etc. in lieu of commission from the companies controlled by them.

• The statement of the Shri Beni Prasad Lahoti, an entry operator, was also recorded in the course of the search & seizure operation wherein he admitted to have provided accommodation entry to the following share holders of the assessee: • Achi Finance & Management Consultancy Pvt. L td • Nilimani Barter Pvt. Ltd.
• Hope well Distributer P. Ltd.
• Sugam Commodeal P.Ltd.
• Khushi Vypar P. Ltd.
• Further, Shri Beni Prasad Lahoti provided the cash traiI to the Investigation Wing and also narrated the modus operandi as to how the unaccounted money of Rashmi Group had been routed through various shell companies in guise of share capital. • Shri Jivendra Mishra, an entry operator, in his recorded statement admitted to have provided accommodation entry to the following share holders of the assessee company: • Bhavsagar Vinimay Pvt. Ltd.
• Giltedge Vincom Pvt. Ltd.
• Devraaj Mercantile Pvt. Ltd.
• Abharani Vinimay Pvt. Ltd.
• During the assessment proceedings u/s 153A, it appears that the entry operators had retracted from their statements recorded under oath during the course of search operation. Retraction from the statement under the oath opens the road for such persons to be prosecuted for giving false statement.
• It is seen from the seized documents that the erstwhile share subscribing companies had transferred the shares to M/s. Sajjan Kumar Patwari (HUF) at a relatively low price; @ Rs.10/- per share. Shri Sajjan Kumar Patwari is the key person of the Rashmi Group. It is noteworthy that the shares were subscribed by the original shareholders @ RS.50/- per shares. It is also apparent from the balance sheet of M/s. Sajjan Kumar Patwari (HUF) that it purchased 4,00,000 shares of M/s. Image Vinimay (P) Ltd. As such, the assessee group ultimately brought back its unaccounted money in its books by rotating the funds.
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• In view of the above, the AO treated the share capital as unaccounted income of the assessee company and added back the same u/s. 68 in the absence of genuineness and creditworthiness of transaction.
• Being aggrieved with the order of the AO, the assessee preferred an appeal before the CIT(A) who inter-alia his order dt.22.03.2017 in Appeal No.484/CIT(A)-20/CC-2(2)115-16 on the ground that the addition made in the order u/s. 153A/143(3) was not based on any incriminating material found/seized in the course of the search. • The department filed appeal before the Hon’ble ITAT, Kolkata against the order of the CIT(A) deleting the addition on the ground that no incriminating materials were found/ seized during the search.
• In this connection, it is submitted that certain documents were found & seized in the course of the search carried out at the various premises of the Rashmi Group and certain entry operators. They were examined and the authorities observed the therefrom that the assessee had routed Its cash in the garb of share capital. Thus, it is incorrect, misrepresentation and farfetched that the additions were not based on the incriminating materials. Further your kind attention is invited to the orders in the cases where no incriminating material is not found:

1. Gopal Lal Bhadruka v. Deputy Commissioner of Income-tax [2012] 27 taxmann.com 167 (Andhra Pradesh) Section 158BD, read with section 158BI of the Income-tax Act, 1961 – Block assessment in search cases – Undisclosed income of any other person – For purposes of section 153A/153C Assessing Officer can take into consideration material other than what was available during search operation for making an assessment of undisclosed income of assessee [In favour of revenue] The question of law agitated before the Tribunal was whether, for the purpose of computing income under section 153A/153C, the Assessing Officer was required to confine himself only to the material found during the course of search operations. The Tribunal held against the assessees.

Held that by virtue of section 158B-I the various provisions of Chapter XIV-B are made inapplicable to proceedings under section 153A/153C. The effect of this is that while the provisions of Chapter XIV-B limit the inquiry by the Assessing Officer to those materials found during the search and seizure operation, no such limitation is found insofar as section 153A/153C is concerned. Therefore, it follows that for the purposes of section 153A/153C the Assessing Officer can take into consideration material other than what was available during the search and seizure operation for making an assessment of the undisclosed income of the assessee.

2. Commissioner of Income-tax v. Chetan Das Lachman Das [2012] 25 taxmann.com 227 (Delhi) Section 153A of the Income-tax Act, 1961 – Search or seizure – Assessment in case of – Assessment years 2000-01 to 2006-07 – Whether there is no condition in section 153A that additions should strictly be made on basis of evidence found in course of search or other post-search material or information available with Assessing Officer which can be related to evidence found – Held, yes – Whether seized material can also be relied upon to drew inference that there can be similar transactions throughout period of six veers covered by section 153A- Held, yes [In favour of revenue].

It is further submitted that the Calcutta High Court in the case of M/s, Eastern Commercial Enterprise (1994) :210 ITR 103 (Cal) & M/s, Bangodayal Cotton Mills Ltd (2011) 330 ITR 104 held that the right to cross examination of a witness adverse to the assessee is an indispensable right and opportunity of such cross examination is one, of the corner stone of natural justice. As the assessee was not given opportunity of Cross- examination both the cases were remanded back to the AO to reconsider the matter afresh. Hence. on this ground, the addition can’t be deleted.
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In view of the facts narrated in the preceding paragraphs, it is submitted that the order’ of the CIT(A) is perverse, bad in law and hence legally unsustainable.”

5. It is according prayed at the Revenue’s behest that the CIT(A) has erred
in law and on facts in quashing the impugned assessment / proceedings for
want of any incriminating material found or seized during the course of search
in issue dated 18.02.2013. Learned counsel invites our attention to sec. 153C
assessment order dated 31.03.2015 in M/s Sajjan Kumar Patwari HUF’s
case not making any such addition then accepting genuineness of sums
involved. Mr. Tulsyan thereafter places on record this tribunal’s decision in
assessee’s cases itself in IT(SS)A No.63-65/2017 for AYs 2007-08 & 2009-10
to 2010-11 decided on 16.01.2019 as under:-
“3. The assessee is a company. A search and seizure operation u/s 132 of the Act, was conducted at the business and residential premises of Rashmi Group at Kolkata and other places, on 18/02/2013. Thereafter the Assessing Officer issued notices u/s 153A were served upon the assessee. In response to the notice, the assessee filed revised return for the Assessment Years declared the same loss. The Assessing Officer completed the assessment u/s 153A r.w.s. 143(3) of the Act on 31/03/2015.

4.1. Aggrieved the assessee carried the matter in appeal. The ld. First Appellate Authority granted part relief. He relied on the decisions of the Hon’ble Calcutta High Court in the case of PCIT vs. Salasar Stock Broking Limited (ITA No.264 of 2016) dt. 24.08.2016 and the judgment in the case of CIT vs. Veerprabhu Marketing Ltd. [2016] 73 taxmann.com 149 (Calcutta) and held that, incriminating material is a prerequisite for making additions in an assessment framed u/s 153A/143(3) of the Act, wherever assessments for the respective Assessment Years have not abated. He pointed out that the Hon’ble Jurisdictional High Court has concurred with the judgment of the Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla (2016) 380 ITR 0573 (Del). He further relied upon a number of decisions of the ITAT Kolkata Bench and deleted all the additions made in the assessment u/s 153A/143(3), on the ground that they were not based on any incriminating material found during the course of search and seizure proceedings and as the assessments for these Assessment Years have not abated.

5. Aggrieved the revenue is in appeal before us on the following grounds:-
“i. That the Ld.CIT(A) has erred in adjudicating the matter without making any independent enquiry to determine the existence of incriminating evidence in the seized material.
ii. That the Ld. CIT(A) has failed to appreciate that a Special Leave Petition has been admitted by the Hon’ble Supreme Court in [2017] 79 Taxman 115(SC) CIT-7 vs RRJ Securities Ltd] on the issue/judicial pronouncements which has been overlooked by the CIT(A), while adjudicating the matter.
iii. Ld. CIT(A) has also erred in making comparison with the case of Veer Prabhu Marketing as in the instant case the notice was issued u/s 153C IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 25 and not u/s 153A as done in the case of the assessee. Hence, the facts and circumstances of the instant case with the case relied upon by the Ld. CIT(Appeals) differ. The case of CIT vs. Kabul Chawla (2016) ITR 0573 (Del) which was also relied upon by the Ld CIT(A) is also different as the contended addition was u/s 2(22)(e) of the IT Act. iv. Further the Ld CIT(A) erred in overlooking the recent High Court judgement in the case of E.N. Gopakumar vs. CIT(Central) (2016) 75 Taxman.com 215(Kerala) wherein it was held that:
Section 153A read with section 2(22), of the IT Act, 1961- search and seizure- assessment in case of (condition precedent)- Assessment Years 2002-03, 2005-06 and 2006-07- whether completed assessment can be interfered with Assessing Officer while making assessment U/S 153A only on the basis of some incriminating materials unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment- Held, yes- Pursuant to search carried out in the case of assessee, a notice U/S 153A(1) was issued- in course of assessment. The Statute nowhere makes it conditional that the Department has to unearth some incriminating material to conclude some method against the assessee in events where the assessment is triggered by a notice u/s 153(1)(a) of the Act.

v. That on the fact and in the circumstances of the case, the Ld. CIT(A) had erred in allowing the assessee’s appeal by observing that additions made by the AO in the assessment order passed u/s 153A/143(3) are not based on any incriminating documents/papers seized during the search operation.”
vi. That on the fact and in the circumstances of the case, the Ld. CIT(A) had erred in not adjudicating the appeal on merit.
vii. That on the fact and in the circumstances of the case, the department craves to add more grounds or alter any ground at the time of appeal.”

6. The ld. D/R, Shri Abani Kanta Nayak, submitted that all the arguments and submissions made by him in the case of M/s. Consortium Enterprises Private Ltd vs. Deputy Commissioner of Income Tax, Central Circle-2(2), Kolkata in I.T(SS).A No.72/Kol/2017 Assessment Year: 2008-09 & I.T(SS).A No. 73/Kol/2017; Assessment Year: 2010-11; order dt. December 5th, 2018, apply to these three cases mutatis mutandis. He submitted that he has nothing further to add and requested the Bench to adopt those arguments in these cases also.

7. The ld. Counsel for the assessee, on the other hand, made similar submissions that the submissions made by him in the case of M/s. Consortium Enterprises Private Ltd vs. Deputy Commissioner of Income Tax (supra) may be adopted in these cases also as the facts and circumstances are identical.
8. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:-

9. We find that the facts and circumstances of this case as submitted by both the parties are identical to the facts and circumstances in the case of M/s.
Consortium Enterprises Private Ltd vs. Deputy Commissioner of Income Tax (supra), IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 26 wherein this bench of the Tribunal in its order dt. December 5th, 2018, held as follows:-
“8. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:-

8.1. We first consider the legal position as to whether, an addition can be made in an assessment u/s 153A r.w.s. 143(3) of the Act, which is not based on any incriminating material found during the course of search and seizure, when the assessment for the Assessment Years in question have not abated. In the case on hand, the assessee filed its original return of income on 29/09/2008 for the Assessment Year 2008-09 and on 24/09/2010 for the Assessment Year 2010-11. The time limit for issual of notice u/s 143(2) of the Act, was 30/09/2009 and 30/09/2011 respectively for Assessment Year 2008-09 & 2010-11. The search and seizure operation was conducted in this case on 18/02/2013. The statutory period for issual of notice u/s 143(2) of the Act, in the case of both the Assessment Years had expired prior to the date of search operation. Hence the assessment for the impugned Assessment Years have not abated. The Assessing Officer made the addition in question by observing as under at page 14 & 15 of the assessment order:-

I) Names of the companies appealing m statements of the entry providers given to investigation wing figure as applicants to shares in the assessee company.

II) Perusal of the operating bank a/c shows that the a/c of most of the investing companies is in the same bank as that of the assessee company.

III) There is no justification on record whatsoever as to whether the company’s credentials commanded a huge share premium, particularly when the same is being paid by strangers.

IV) Summons U/S 131 to such persons I company have not been adequately responded and the assessee has failed to produce them in response to the show- cause notice.

V) The findings that the investing companies which subscribed to the shares were borne on the file of the ROC and that the monies have come through a/c payee cheques is at best, neutral. Mere payment by cheques is not sacrosanct as would not, make a non- genuine transaction as genuine.

VI) Bonafide and genuineness of the transactions is the main issue and in this regard, the assessee company has failed miserably.

VII) Scrutiny has revealed the camouflage adopted by the assessee and exposed the true nature of the transactions.
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VIII) Onus is on the assessee to prove the identity of share applicants, their creditworthiness and genuineness of the transactions appearing in its books of sale which is not proved in this case. In fact, genuineness of the transactions has not been established in spite of repeated opportunities.

IX) There is enough material on record to doubt the veracity of the transactions.”

A perusal of the above demonstrates that the additions in question are not based on any incriminating material found during the course of search.

8.2. On the legal position, we find that the various Courts of law under similar circumstances have held as follows:-
CIT,Kolkata-III Vs. Veerprabhu Marketing Limited [2016] 73 taxmann.com 149 (Calcutta) :
In this case The Honourable Calcutta High Court expressed the following views:
“We are in agreement with the views of the Karnataka High Court that incriminating material is a pre-requisite before power could have been exercised under section 153C read with section 153A.
In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contemplated by the provisions contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances.”

PCIT-2, Kolkata Vs. Salasar Stock Broking Limited (ITAT No. 264 of 2016) dated 24.08.2016 : (Calcutta) In this case, the Honorable Jurisdictional High Court observed that the Ld. ITAT, Kolkata was of the opinion that the assessing officer had no jurisdiction u/s 153A of the I.T. Act to reopen the concluded cases when the search & seizure did not disclose any incriminating material. In taking the aforesaid view, the Ld. ITAT relied upon the judgments of Delhi High Court in the case of CIT(A) Vs. Kabul Chawla in ITA No. 707/2014 dated 28.08.2014. The Court also observed that more or less an identical view has been taken by this Bench in ITA No. 661/2008 in the case of CIT Vs. Veerprabhu Marketing Limited. Considering the above facts, the Honorable High Court did not admit the appeal filed by the Department. It held as follows:-

“Subject matter of challenge is a judgement and order dated 18th December, 2015 by which the learned Tribunal dismissed an appeal preferred by the Revenue registered as ITA No.1775/Kol/2012 and allowed a cross-objection registered as CO-30/Kol/2013 both pertaining to the assessment year 2005-06.
The learned Tribunal was of the opinion that the Assessing Officer had no jurisdiction under Section 153A of the Income Tax Act to IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 28 reopen the concluded cases when the search and seizure did not disclose any incriminating material. In taking the aforesaid view, the learned Tribunal relied upon a judgement of Delhi High Court in the case of CIT[A] vs. Kabul Chawla in ITA No.707/2014 dated 28th August, 2014. The aggrieved Revenue has come up in appeal.”

….In that view of the matter, we are unable to admit the appeal. The appeal is, therefore, dismissed.”

The ‘A’ Bench of the Delhi ITAT, recently in the case of Anurag Dalmia vs. DCIT in ITA Nos. 5395 & 5396/DEL/2017; Assessment Years: 2006-07 & 2007-08, dt. 15/02/2018, has explained the law on this issue in the following manner:- “12. We have heard the rival submissions, perused the relevant material placed on record and the finding given in the impugned order with respect to legal issue raised vide ground no.5 by the assessee that the additions made in this year are beyond the scope of assessment u/s.153A, as no incriminating material was found during the course of search for the impugned Assessment Year; and the assessment had attained finality and was not abated in terms of 2nd Proviso to Section 153A. As stated above, the original return of income was filed in July, 2006 and said return was duly accepted and processed u/s. 143(1) vide intimation dated 25.05.2007. Since no notice u/s. 143(2) was issued thereafter or any other proceedings have been commenced to disturb said return of income, accordingly, it had attained finality much prior to the date of search which was on 20.01.2012. Hence in terms of 2nd Proviso to Section 153A the assessment for the Assessment Year 2006-07 was not pending and accordingly, has to be reckoned as unabated assessment. Under the jurisdiction of Hon’ble Delhi High Court, the law is well settled that in case of unabated assessment, the additions which can be roped-in, in the assessments framed u/s.153A, would only be with regard to any incriminating material or evidence unearthed or found during the course of search. If no incriminating material has been found during the course of search, then no addition can be made in the assessment years where assessments had attained finality. The relevant observations and the ratio laid down would be discussed in the later part of this order.

15. Now coming to the ratios laid down by the Hon’ble Jurisdictional High Court, first of all, in the case of Kabul Chawala (supra), the Hon’ble Court after discussing the issue threadbare and analysing the various judgments of different High Courts laid down the following legal proposition in terms of scope of addition which can be made u/s. 153A(1) which are as under:-

“37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 29 person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place.
ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise.

iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the ‘total income’ of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs “in which both the disclosed and the undisclosed income would be brought to tax”.

iv. Although Section 153A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment “can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material.”

v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word ‘assess’ in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word ‘reassess’ to completed assessment proceedings.

vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO.
vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or 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.”

This judgment of the Hon’ble Delhi High Court has been followed in several judgments not only by the Hon’ble Delhi High Court but also by other Hon’ble High Court like, Pr. CIT vs. Somaya Construction Pvt. Ltd. 387 ITR 529 (Guj), CIT vs. IBC Knowledge Park Pvt. Ltd. 385 ITR 346 (Kar) and CIT vs.Gurinder Singh Bawa reported in 386 ITR 483. In the latest judgment the Hon’ble Delhi High Court in Pr. CIT vs. Meeta Gutgutia, their Lordships reiterated the same principle after discussing and analyzing catena of decisions including that of Anil Kumar Bhatia IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 30 (supra) and Dayawanti Gupta. The Hon’ble HighCourt observed and held as under:-

“62. Subsequently, in Principal Commissioner of Income Tax-1 v. Devangi alias Rupa {supra), another Bench of the Gujarat High Court reiterated the above legal position following its earlier decision in Principal Commissioner of Income Tax v. Saumya Construction P. Ltd. {supra) and of this Court in Kabul Chawla (supra). As far as Karnataka High Court is concerned, it has in CIT v. IBC Knowledge Park P. Ltd. {supra) followed the decision of this Court in Kabul Chawla (supra) and held that there had to be incriminating material qua each of the AYs in which additions were sought to be made pursuant to search and seizure operation. The Calcutta High Court in CIT-2 v. Salasar Stock Broking Ltd. {supra), too, followed the decision of this Court in Kabul Chawla (supra). In CIT v. Gurinder Singh Bawa {supra), the Bombay High Court held that:

“6…once an assessment has attained finality for a particular year, i.e., it is not pending then the same cannot be subject to tax in proceedings under section 153A of the Act. This of course would not apply if incriminating materials are gathered in the course of search or during proceedings under section 153A of the Act which are contrary to and/or not disclosed during the regular assessment proceedings.”

63. Even this Court has in CIT v Mahesh Kumar Gupta {supra) and The Pr. Commissioner of Income Tax-9 v. Ram Avtar Verma {supra) followed the decision in Kabul Chawla (supra). The decision of this Court in Pr. Commissioner of Income Tax v. Kurele Paper Mills P. Ltd. {supra) which was referred to in Kabul Chawla (supra) has been affirmed by the Supreme Court by the dismissal of the Revenue’s SLP on 7th December, 2015.”

18. Post the judgment of Meeta Gutgutia (supra), also the same principle have been reiterated in the case of PCIT vs. Best Infrastructure (India) Pvt. Ltd. (supra), wherein the Hon’ble High Court held that during the course of search, statement recorded u/s. 132(4) by themselves does not constitute incriminating material and assumption of jurisdiction by the Assessing Officer u/s.153A solely based on statement is unsustainable when there is no incriminating material found during the course of search. Again in the case of PCIT vs. Dharampal Premchand Ltd., in ITA No.512 to 514/206, the Hon’ble Delhi High Court held that ratio laid down in the case of Kabul Chawla, Meeta Gutgutia, still holds ground and the Revenue’s contention that the matter should be referred to a larger bench was turned down. Apart from these judgments, there are catena of other judgments of other High Courts laying down similar ratio and proposition. The main underlying principle permeating in all the judicial precedents is that, in the case of the unabated assessment which had attained finality on the date of search, which are reckoned as unabated assessments, no addition over and above the originally assessed income can be made sans any incriminating material found or unearthed during the course of search. The principle reiterated time and again is that something should be found as a result of search which is incriminating in nature so as to implicate the IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 31 assessee and acquire jurisdiction to make the addition, because for the completed assessment, or in other words, assessment which are not abated, the Assessing Officer is required to make reassessment u/s.153A which is only possible when any incriminating material has been found during the course of search.”

The Hon’ble Delhi High Court in the case of Pr. CIT vs. Kurule Paper Mills P. Ltd. [2016] 380 ITR 571 (Delhi) held as follows:-
1. The Revenue has filed the appeal against an order dated 14.11.2014 passed by the Income Tax Appellate Tribunal (ITAT) in 3761/Del/2011 pertaining to the Assessment Year 2002-03. The question was whether the learned CIT (Appeals) had erred in law and on the facts in deleting the addition of Rs. 89 lacs made by the Assessing Officer under Section 68 of the Income Tax Act, 1961 (‘ACT’) on bogus share capital. But, the issue was whether there was any incriminating material whatsoever found during the search to justify initiation of proceedings under Section 153A of the Act.

2. The Court finds that the order of the CIT(Appeals) reveals that there is a factual finding that “no incriminating evidence related to share capital issued was found during the course of search as is manifest from the order of the AO.” Consequently, it was held that the AO was not justified in invoking Section 68 of the Act for the purposes of making additions on account of share capital.

3. As far as the above facts are concerned, there is nothing shown to the court to persuade and hold that the above factual determination is perverse. Consequently, after considering all the facts and circumstances of the case, the Court is of the opinion that no substantial question of law arises in the impugned order of the ITAT which requires examination.
4. The appeal is, accordingly, dismissed.
The department had filed special leave petition before the Hon’ble Apex Court against the above judgment of the Delhi High court. (Pr CIT V KURULE PAPER MILLS P. LTD: S.L.P (C) No-34554 of 2015[ 2016] 380ITR (st) 64-Ed)..

The Hon’ble Apex court dismissed the special leave petition filed by the department.
The relevant Para as mentioned in the ITR is reproduced as under.
“Their Lordships Madan B.Lokur and S.A.Bobde JJ dismissed the Department’s special leave petition against the judgment dated July 06,2015 of the Delhi High Court in I.T.A No 369 of 2015, whereby the High Court held that no substantial question of law arose since there was a factual finding that no incriminating evidence related to share capital issued was found during the course of search and that the assessing officer was not justified in invoking section 68 of the Act for the purpose of making additions on account of share capital”

9. We apply the propositions of law laid down in the above case-law to the facts of the case on hand. We find that the addition made for these IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 32 Assessment Years is of share application money received u/s 68 of the Act and addition of commission allegedly paid on the share application money and finally a disallowance u/s 14A of the Act, are not based on any incriminating material found during the course of search. The alleged statements recorded from entry operators have been admittedly retracted by them and the Assessing Officer has not based the additions on these statements. Even otherwise, when copies of the alleged statements recorded by the revenue officials have not been given to the assessee, no addition can be made based on such evidence which is not confronted to the assessee. The contents of the statements are also not brought out in the assessment order. Only a general reference is made that there were certain statements recorded from various entry operators by the investigation wing. No addition can be made on such general observations. We also find that the assessee has not been given an opportunity to cross-examine any of these persons, based on whose statements, the ld. D/R claims that the additions have been made. The Hon’ble Supreme Court in the case of Kishinchand Chellaram vs. CIT, 125 ITR 713 (SC) had held that the opportunity of cross-examination must be provided to the assessee. The Jurisdictional High Court in the case of CIT Vs Eastern Commercial Enterprises (1994) 210 ITR 103 (Kol HC) held as follows:-
As a matter of fact, the right to cross-examination a witness adverse to the assessee is an indispensable right and the opportunity of such cross-examination is one of the cornerstones of natural justice.

9.1. The Judgment of the Hon’ble Kerala High Court in the case of E.N. Gopakumar vs. CIT (Supra) lays down a proposition, contrary to the propositions of law laid down by the Hon’ble Jurisdictional High Court in the case of CIT vs. Veerprabhu Marketing Ltd. (supra) and PCIT vs. Salasar Stock Broking Limited (supra).

9.2. Even otherwise, it is not clear as to which of these statements were recorded during the course of search operation u/s 132 of the Act or whether the statements were recorded during the course of any survey operations u/s 133A of the Act. It is well settled that a statement recorded during the course of survey operation cannot be used as evidence under the Act.
10. Coming to the alleged cash trail, none of the material gathered by the Assessing Officer by way of bank account copies of various companies supposed to be part of the chain of companies was not confronted to the assessee. The alleged statements that were recorded from directors of these companies which formed this alleged chain were also not brought on record. Only a general statement has been made. There is no evidence whatsoever that cash has been routed from the assessee company to any of these chain of companies. There is no evidence that any cash was deposited by the assessee company. Moreover, there is no material whatsoever brought on record to demonstrate that the alleged cash deposit made in the bank account of a third party was from the assessee company. No opportunity to cross-examine any these parties was provided to the assessee. The bank statements based on which the cash trail was prepared are part of the disclosed documents and cannot be held as incriminating material.

10.1. Thus, none of these material gathered by the Assessing Officer can be categorized as incriminating material found during the course of search IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 33 or found during the course of any other operation under the Act. Thus, we hold that the additions in question are not based on any incriminating material. The ld. CIT(A) on page 30 of his order held as follows:-

“I have considered the findings of the AO in the assessment order, different case laws was brought on record and appeal orders passed by my predecessors on this legal issue. I find from the assessment order that during the search & seizure operations conducted u/s 132 of the IT Act, 1961, incriminating documents/papers were not seized. At least addition made by AO in the assessment order passed u/s 153A/143(3) are not based on any incriminating documents/ papers seized during the search operation. It would also not to be out of context to mention here that in this case, on the date of search, no assessment for this year was pending. Therefore, keeping in view the ratio decided by the jurisdictional bench of Kolkata tribunal in case referred above and the ratio decided by the Hon’ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (supra) in the light of CBDT’s decision of not filing SLP in this case in the Supreme Court and keeping in view the Apex court’s decision to dismiss SLP on the similar issue in the case of Pr CIT vs Kurele Paper Mills Pvt Ltd: SLP (C) No. 34554 of 2015 dt.07.12.2015, I am of this view that in order to maintain judicial continuity on this issue and respectfully following the ratio decided by the Hon’ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd (supra), assessee’s appeal on ground no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit.”
11. We find not infirmity in this order of the ld. CIT(A) and hence uphold the same.
12. In the result both these appeals of the revenue are dismissed.”

10. Consistent with the view taken by us in above mentioned case-law referred to by the assessee, we uphold the order of the ld. CIT(A) and delete the addition in question.”
6. We have given our thoughtful consideration to rival contentions. We find
no merit in Revenue’s above extracted arguments. The clinching fact that has
gone unrebutted from the Revenue’s side is that assessee’s share capital in
issue amounting to ₹269,00,000/- already stood recorded in its balance sheet
forming part of regular books of account. The same cannot be held to be
incriminating material therefrom forming condition precedent for setting into
motion the impugned proceedings u/s. 153A of the Act as held in learned co-
IT(SS)A No.84/Kol/2017 A.Y.2008-09
DCIT, CC-2(2), Kol. Vs. M/s Image Vinimay Ltd. Page 34 ordinate bench’s detailed discussion. We therefore adopt the said detailed
reasoning mutatis mutandis to uphold the CIT(A)’s findings under challenge.
7. This Revenue’s appeal is dismissed.
Order pronounced in the open court 15/05/2019 Sd/- Sd/- (लेखा सद%य) ( या’यक सद%य)
(Dr.A.L. Saini) (S.S.Godara)
(Accountant Member) (Judicial Member)
Kolkata,
*Dkp, Sr.P.S
(दनांकः- 15/05/2019 कोलकाता ।
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-DCIT, Central Circle-2(2), Aayakar Bhawan, Poorva,110, Shantipally, Kolkakta-107
2. यथ /Respondent-M/s Image Vinimay Ltd., 39 Shakespeare Sarani 6th Fl, Kolkata-17
3. संब3ं धत आयकर आय4 ु त / Concerned CIT Kolkata
4. आयकर आय4 ु त- अपील / CIT (A) Kolkata
5. 7वभागीय ‘त’न3ध, आयकर अपील य अ3धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड< फाइल / Guard file.
By order/आदे श से, सहायक पंजीकार आयकर अपील य अ3धकरण, कोलकाता ।

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