SUSHEN MOHAN GUPTA ,NEW DELHI vs. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 15, DELHI , DELHI

That the assessment order passed is not in accordance with the principles of natural justice in as much as, the assessment was made without providing the statements, forensic reports, copy of hard disk, material purportedly used to corroborate the entries in the excel sheet, statements recorded u/s 50 of PMLA and relied upon and cross- examination of all such person even after the repeated and specific requests of the appellant, which is fatal to the assessment made. 5.1 That the Ld. Assessing Officer as well as Ld. CIT(A) have erred in failing to appreciate the law that the statement recorded under section 50 of PMLA when the appellant is in remand has no evidentiary value and cannot be used as evidence under Income Tax proceedings. 5.2 The Ld. Assessing Officer as well as Ld. CIT(A) have failed to appreciate that confrontation given under the PMLA cannot be equated with cross-examination when the Income Tax Department is relying on the statement recorded under PMLA. He further erred by disregarding the law settled by the Highest Court of the Country, stating that cross- examination is not an absolute right.

That the Ld. Assessing Officer as well as the Ld. CIT (A) have erred in not appreciating the fact and the applicable law that the case of the appellant does not fall within the ambit of 4th proviso to section 153A of the Act and therefore, the assessment initiated and the order passed for the impugned assessment year is invalid.

That the Ld. CIT(A) has erred in sustaining the order of the Ld. Assessing Officer, which admittedly is based on the findings of the Enforcement Directorate on the so-called pen-drive, statements taken by the Enforcement Directorate under the PMLA and charge sheet filed by them without making any independent enquiries.

During the course of hearing, the assessee raised additional grounds of appeal vide letter dated 06.12.2024 as under:-

During the course of search on the assessee at Cottage No. 28, Taj Exotica Resorts & Spa, Radhanagar Beach no. 7, Havelock Island, Andaman & Nicobar Island, a 32GB pen drive was found which contained fifth supplementary charge sheet along with various annexures which also contained the five excel sheets on the basis of which the Ld. AO has made addition to the income. The Ld. AR contended that this pendrive was also available with the Income Tax Department before the search on the assessee, that this pen drive contained the same information as in the pen drive handed over by the Enforcement Directorate that the charge sheets in the pendrive were only statutory documents and not incriminating.

In the opinion of the lower authorities and the Ld. Special Counsel for the Revenue (hereinafter referred to as Ld. DR) before us, the contents noted in Paragraphs 7 to 9 above constitute incriminating materials found during the course of search on the assessee by the Income Tax Department and hence the same could be used against the assessee for making addition in respect of an unabated assessment. Accordingly, it was argued by the Ld. DR before us vehemently that the decision of the Hon‘ble Supreme Court in the case of Abhishar Buildwell Pvt Ltd reported in 454 ITR 212 (SC) is not applicable to the facts of the instant case.

The issues that arise for our adjudication qua the aspect of incriminating material found during the course of search on assessee, are as under:-

From the above observations of the Ld. AO, the Ld. AR submitted that it is amply clear that the income tax department has conceded that the pen drive on the basis of which addition was made was already available with them before the income tax search took place. The Ld. CIT(A) also stated this fact and it may be relevant to state that the Department is not in appeal against the order of the Ld. CIT(A) on this finding.

The Ld. AR stated that during the course of search on the assessee at Cottage No. 28, Taj Exotica Resorts & Spa, Radhanagar Beach No. 7, Havelock Island, Andaman & Nicobar Island, a 32GB pen drive was found which contained fifth supplementary charge sheet of ED along with various Page | 12 annexures which also contained the five excel sheets on the basis of which the Ld. AO has made addition to income. The Ld. Counsel of the assessee referred to para 1 of remand report at Page 168 of the Paper Book, rejoinder dated 07.01.2024 at Pages 62 to 99 of the Ld. CIT(A)‘s order / Pages 246 to 250 of the Paper Book, letter filed on 07.06.2024 (enclosed at pages 443-446 of the paper book and reproduced at Pages 122 to 124 of the Ld. CIT(A)‘s order) to state that the 32GB pen drive only contains supplementary charge sheets number 1, 3, 4 and 5 filed by the ED and all supporting documents and exhibits, and nothing more. The Counsel further contended that this was also stated by the Ld. AO at internal pages 19 and 21 of his remand report which are enclosed at pages 181 and 183 of the Paper Book and also by the Ld. CIT (A) at page 152 in para 8.4 of his Order.

The Ld. AR further contended that the supplementary charge sheet filed by the Enforcement Directorate was already available with the Investigation Wing of the Income-tax Department as was the pen drive handed over by the Enforcement Directorate before the conduct of search. The Ld. AR of the assessee contended that the said supplementary charge sheet was filed by the Enforcement Directorate on 22.05.2019 and the search on the assessee u/s 132(1) of the Act took place on 02.01.2020. This contention of the assessee was not controverted by the lower authorities. The Ld. AR further contended that the supplementary charge sheet did not contain any new information other than that already contained in the pen drive handed over by the ED and, therefore, cannot be said to be incriminating evidence found during the course of the income tax search. It was further stated that the supplementary charge sheet is a statutory public document and merely contains allegations by the ED. According to the Ld. AR, even the charges have not been framed till date and trial is yet to begin and hence cannot constitute incriminating material found during search. The Ld. AR referred to the order of the Ld. CIT(A) in Para 8.4 thereon, wherein he has also held that the supplementary charge sheet is only a statutory document. Accordingly, the Ld. AR submitted that the same does not constitute incriminating evidence.

As far as the statements recorded u/s 132(4) of the Act and u/s 50 of PMLA from the three persons associated with the assessee and the assessee‘s own statement is concerned, the Ld. AR stated as follows:-

Hence, according to the Ld. AR, all the above statements are bereft of any supporting evidence and in any case, do not incriminate the assessee under any stretch of imagination. Besides, none of the three persons have admitted to having incurred any expenditure outside the books of account.

The Ld. AR stated that the judgement of the Hon'ble Supreme Court in the case Abhisar (supra) is very clear and states that the material found must be incriminating i.e. should be reflective of undisclosed income or income not disclosed in the return of income by the assessee. According to the Ld. AR, the ratio decidendi of the Hon'ble Supreme Court in Abhishar Buildwell (supra) is to be followed in its letter and spirit and evidence by way of incriminating documents reflecting undisclosed income is a prime requisite for making assessment u/s 153A of the Act.

During the course of hearing and also in the written submissions dated 3.02.2025 filed by the Ld. DR, he started with a legal submission on how the judgment of the Hon'ble Supreme Court in Abhishar (supra) is to be read and took us to the texts in the cases of Commissioner of Customs v. Toyota Kirloskar, (2007) 5 SCC 371, Laxmi Devi V. State of Bihar, (2015) 10 SCC 241 & Behrens v. Bertram Mills Circus Ltd., [1957] 2 QB 1, at page 25. According to the Ld. DR, the decision by the Hon'ble Supreme Court in the case of Abhishar (supra) would not help the assessee in as much as it has been established that the pen drive belongs to him and this is an extraordinary situation where the assessee kept the pen drive outside India with Mr. Rajiv Saxena and the ED brought the pen drive through proper channels and the same constitutes evidence against the assessee. He argued that it is not relevant that the pen drive was found during the course of search by the Income-tax Department or handed over by the ED. According to the Ld. DR, the 32 GB pen drive found during the course of search on assessee in Havelock Island, contained fifth supplementary charge sheet along with various annexures which also contained the five excel sheets on the basis of which the Ld. AO has made additions to income and, therefore, the requirement of incriminating material found during the course of search has been fulfilled. The Ld. DR relied on the decision of PCIT vs. Abhishar Buildwell (supra) to state that at the stage of assuming jurisdiction, a detailed exercise is not required to be conducted, and the Ld. AO can proceed on a prima facie footing.

The Ld. DR further stated that Mr. Rajiv Saxena‘s approvership status has been continued and the Hon'ble Supreme Court has sent back this issue and directed the ED to raise this issue before the Trial Court. Hence, Mr. Rajiv Saxena cannot be said to be an unreliable witness.

The Ld. DR also relied upon the statement given by Mr. M.N. Khanna, Mr. R.P. Kashyap and Mr. Nagesh Kumar Azad to state that they were familiar with the contents of the pen drive handed over by the ED; that Mr. R.P. Kashyap confirmed that he received reimbursements as mentioned in the pen drive handed over by ED; that Mr. M.N. Khanna in his statement recorded u/s 50 of the PMLA admitted that certain transactions recorded in the said excel files may be related to building materials and some of the entries related to the renovation works at the farmhouse.

The Ld. DR contended that the statements corroborate the entries in the excel sheets in the pen drive handed over by the ED and, that it was sufficient to reach a prima facie satisfaction necessary for assuming jurisdiction u/s 153A of the Act. Hence, this constitutes incriminating material and, therefore, the assessment made u/s 153A of the Act is valid. He further contended that Mr. R.P. Kashyap‘s statement stands corroborated by the spreadsheets in the pen drive that have otherwise been fortified independent material unearthed and seized during the very same search initiated on 02.01.2020.

The Ld. DR has relied on the decision of Hon‘ble Supreme Court in the case of Dayawanti v. CIT, 2016 SCC Online Del 5772 , decision of Hon‘ble Delhi High Court in the case of Anil kumar Bhatia [2013] 352 ITR 493 (Del), PCIT v. Nau Nidh Overseas Pvt. Ltd. [2017] 394 ITR 753 (Del), CIT v. Hotel Meriya, (2011) 332 ITR 537, B. Kishore Kumar v. DCIT, Central Circle IV(1), Chennai, [2014] 52 taxmann.com 449, B. Kishore Kumar was upheld in (2015) 62 taxmann.com 215 to support that statement also constitutes as material because it is made in the course of the search .

As far as the statement u/s 132(4) of the Act by the assessee and three other persons, Mr. M.N. Khanna, Mr. R.P. Kashyap and Mr. Nagesh Kumar Azad are concerned, the Ld. CIT (Appeals) has at Para 8.4.1 at Pages 152 to 154 of his order held that the contradictory statement given by the assessee before the ED and Income-tax Department as regards the ownership and contents of the pen drive handed over by the ED, the evidence gathered from the pen drive being corroborative of the transaction and with the group concerns constitutes incriminating evidence and, therefore, the ground of the assessee is not tenable and hence liable to be dismissed. The Ld. DR relied on Para 8.4.1. of the order of Ld. CIT(A) as under:-

The issue of corroboration has been discussed by the Ld. CIT(A) at Para 11, Pages 169 to 192 of his order. The Ld. CIT(A) has stated at first Para at Page 191 of his order that even if the email, etc. and other documents relied upon to corroborate the entries in the five excel sheets are recorded in the books of account or are not incriminating, it does not make a difference and that the entries in the pen drive will be used for making the assessment. According to the Ld. CIT(A), the Ld. AO had been able to corroborate that the excel sheets in the pen drive pertain to the assessee. The relevant observations are reproduced below:-

The Ld. DR relied on the order of the Ld. AO and the Ld. CIT(A) to state that the corroboration exercise also shows that the pen drive belongs to the assessee and, therefore, the additions so made were warranted in law.

We have heard the rival submissions and perused the materials available on record containing the written submissions made by both the sides and documents placed on record. We have also perused the judgments relied upon and placed by way of Paper Books by both the Counsels. The entire issue revolves around the five excel sheets contained in the pen drive on the basis of which additions to income have been made. It is very clear from the order of the Ld. CIT(A), that the pen drive containing the five excel sheets on the basis of which addition has been made was already available with the Investigation Wing of the Income-tax Department before the conduct of the search on the assessee on 2.1.2020. This, according to the Ld. CIT(A) has been admitted both in the assessment order at page 2 and Remand Report at page 2.

With respect to the 32GB pen drive found from Havelock Island, Andaman & Nicobar Islands, the Ld. CIT(A) held that the same contained only fifth supplementary charge sheet filed by ED which runs into hundreds of pages and the supplementary charge sheet can be said to be statutory documents listing the charges against the assessee in the PMLA proceedings being carried out against the assessee. The Ld. CIT(A) has also stated that the 5 excel sheets were part of the said 5th supplementary chargesheet. It would be relevant to reproduce the findings of the Ld. CIT(A) in Para 8.4 of his order as under:-

In respect of the impugned assessment years, the law relating to search u/s 132(1) of the Act and consequential assessment u/s 153A of the Act being based on incriminating documents found is no longer res-integra in view of the decision of the Hon‘ble Supreme Court in the case of Abhishar Buildwell (supra) wherein it was inter alia held that in order to make an assessment u/s 153A of the Act in respect of unabated assessment, some incriminating evidence must be found during the course of search which is directly indicative of undisclosed income in the case of the assessee. The relevant operative portion of the said judgment of the Hon'ble Supreme Court is reproduced hereunder:-

The main contention of the assessee is that the pen drive containing five excel sheets, on the basis of which entire addition to income has been made in the case of the assessee, was not found during the course of search. It was already existing in the form of a pen drive and was in the custody of the Income-tax Department before the conduct of search. It was contended that the said pen drive was handed over by the ED who had received the same from Mr Tanmay Saxena (son of Mr Rajiv Saxena) during investigation being carried out by the ED on Mr Rajiv Saxena. Hence, if the pen drive which constitutes incriminating material according to the Income-tax Department, was already available with the Department before the conduct of the search, it cannot possibly be construed as incriminating material found during the course of income tax search. The fact, that the pen drive containing 5 excel sheets based on which additions have been made was already available with the Income-tax Department before the conduct of search, is conceded by the Ld. AO himself in the remand report dated 5.12.2023 which are enclosed at Pages 164, 179 to 180 and 196 to 197 of the Paperbook. Even the Ld. CIT(A) had given a categorical finding that the pen drive containing 5 excel sheets was already available with the Income-tax Department before the conduct of income tax search on the assessee at Para 8.4 at Page 152 of his order which is already reproduced supra. Hence it could be safely concluded that the pen drive was available with the Income-tax Department and was not found during the course of the income tax search conducted on 02.01.2020 u/s 132(1) of the Act and, therefore, would not be construed as incriminating evidence found during the course of the search as per the ratio of the judgment of the Hon'ble Supreme Court in the case of Abhisar (supra). As far as the existence of 5 excel sheets in the supplementary charge sheet found in the 32 GB pen drive at Havelock Island during the course of the search on the assessee is concerned, the Ld. CIT(Appeals) has dealt with the issue at page 152 para 8.4 of his order, reproduced above, wherein he has said that the supplementary charge sheet constitutes a statutory document. In our considered opinion, a chargesheet is only allegations leveled on a person by a regulatory authority and the same need to be tested in the trial court so as to make them evidence, much less incriminating evidence. Even this supplementary charge sheet was dated 22.5.2019 and the same was found with the assessee at the time of search conducted on 2.1.2020 at Havelock Island. Obviously the assessee had to possess a copy of chargesheet submitted in his case. What is to be seen for the purpose of income tax search assessment for a completed year is as to whether the same would be incriminating in nature. As rightly stated by the Ld. CIT(A), a charge sheet is a statutory document. Hence a statutory document which is there in public domain cannot fall under the ambit of ‗incriminating material‘ found during the course of income tax search.

In view of the above, we have no hesitation to hold that both the documents i.e. (i) pen drive received by Income Tax Department from ED and (ii) 5th supplementary chargesheet found with the assessee, were already available with the Income-tax Department and does not construe incriminating evidence found during the course of the income tax search of the assessee.

As far as the statement of Mr. M.N. Khanna, Mr. R.P. Kashyap and Mr. Nagesh Kumar Azad are concerned, statement from Mr. M.N. Khanna was taken u/s 50 of PMLA by the ED and not by the Income-tax Department. Besides, there was nothing in the said statements to incriminate the assessee in person. The statement by Mr. R.P. Kashyap also speaks of reimbursement received from the company, M/s Indian Avitronics and not the assessee and even otherwise, the reimbursement was not alleged to be outside the books of account. The statement given by Mr. Nagesh Kumar Azad is also of no help to the revenue. He was also not employed with the assessee and did not state anything on the contents of the excel sheets. Hence, these three statements do not constitute incriminating evidence and are not even backed by the documents found during the course of search.

The statement of the assessee recorded u/s 132(4) of the Act cannot be said to be incriminating as he merely denied having to do anything with the pen drive in terms of its ownership. The Hon'ble Supreme Court in the case of Abhishar Buildwell (supra) has approved the judgement in the case of Smt. Dayawanti reported in 390 ITR 496 (Delhi) and as per the contention of the Ld. DR, statement u/s 132(4) of the Act recorded during the course of search constitutes evidence found during the course of the search. In this regard, we find that in the case of Smt. Dayawanti, there were incriminating evidences found during the course of search , which when confronted to that assessee, a statement was taken and therefore the statement was treated as corroborative evidence. The relevant portion of the judgement in the case of Smt. Dayawanti (supra) is as under:-

In the case of the assessee, there was nothing found whatsoever on the basis of which statement was taken from the three persons. These were bald statements which did not throw up any allegation of undisclosed income relating to the assessee found during the course of search. Hence, the statements taken from the three persons cannot said to be incriminating in nature.

In view of the aforesaid observations, we have no hesitation to hold that there was no incriminating material found during the course of income tax search of the assessee on 2.1.2020. Since the year under consideration is an unabated /completed assessment on the date of search, no additions could be made in the absence of any incriminating material found during the course of search. Hence the ratio decidendi laid down by the Hon‘ble Supreme Court in the case of Abhishar Buildwell (supra) would squarely be applicable to the facts of the instant case. Accordingly, the additions made by the Ld. AO are hereby deleted on this legal issue.

We find that the assessee had also raised an additional ground challenging the mandatory approval being granted u/s 153D of the Act by the Learned Additional Commissioner of Income Tax (Ld. Addl. CIT in short) in a mechanical manner and without application of mind. The additional grounds raised by the assessee have already been admitted by us as they go to the root of the matter. The approval papers u/s 153D of the Act were also placed on record by the Ld. DR.

The Ld. AR then drew our attention to the approval granted by the Ld. Addl. CIT u/s 153D of the Act vide F. No. Addl. CIT/C.R.-4/2021-22/742 enclosed in Page 180 of Additional Ground Paper Book 1. He referred to the date mentioned on the approval, which states 29.09.2021 in printed form, with '30' written by hand beneath '29'. The Ld. AR submitted that the approval was actually made on 29.09.2021, and that the date 30.09.2021 was added later, either because it was signed on 30.09.2021 or to create the impression that the approval was made only on 30.09.2021. According to the Ld. AR, this means that the Ld. Addl. CIT had only one day i.e 28.09.2021, to approve the draft assessment orders submitted to her on 27.09.2021, and less than a day for the draft assessment orders submitted on 29.09.2021. The Ld. AR further argued that even the day on which these draft assessment orders were sent to the Ld. Addl. CIT by the Ld. AO could not be considered available for her review. In the case of the draft assessment orders sent on 27.09.2021, the last date of effective hearing, as per the order sheet, was 27.09.2021. For the draft assessment orders sent on 29.09.2021, the Ld. AO had issued a summon to Blue Ocean Travels Private Ltd. (BOTPL) on 29.09.2021. Therefore, the Ld. AR argued that the draft assessment orders were likely sent to the Ld. Addl. CIT either late at night or the following day, leaving her no time to even peruse the draft assessment orders, which ran into hundreds of pages, let alone the assessment folders running into thousands of pages. The Ld. AR further drew our attention to the 97 assessment orders (including seven orders before us) as is evident from the index of Additional Ground Paper Book 1, which were passed u/s 153A of the Act and approved by the same Ld. Addl. CIT on 28.09.2021, 29.09.2021, and 30.09.2021. The Ld. AR argued that it could not have been humanly possible to go through the draft assessment orders, case records, including assessment folders, seized material, and appraisal reports, etc., of 97 cases pertaining to different assessees in just two days. The Ld. AR further submitted that, apart from these orders, the Ld. Addl. CIT could have possibly approved several other orders on these dates pertaining to different searches involving different assessees.

The Ld. AR then drew our attention to two other approval letters dated 29.09.2021 and 30.09.2021 enclosed in Pages 182 to 184 of Additional Ground Paper Book 1, whereby the same Ld. Addl. CIT approved 11 orders pertaining to two different assessees in each letter. Referring to these approvals, the Ld. AR submitted that they are worded exactly the same as the approval granted in the case of the assessee, with the same clerical and language errors, which indicates that these approvals were merely Proforma approvals maintained by the Ld. Addl. CIT, with the relevant details filled in as required, without actually reviewing the draft orders and case records mentioned in the approvals. The Ld. AR also presented two additional approval letters, dated 29.03.2023 and 30.03.2023, issued by the same office of Ld. Addl. CIT, whereby she approved nine orders passed u/s 153C of the Act for two different assessees i.e. Manish Mohan Motwani and Mohan Lilaram Motwani. Referring to these approvals, the Ld. AR pointed that, even after two years, the language of the approvals remains exactly identical, despite the change in the person holding office. Hence approvals are being given on prepared letter which have not undergone any change even after two years. The Ld. AR further submitted that apart from mentioning that Ld. Addl. CIT had perused the draft assessment orders and case records before granting approval, there is nothing in the approval letter which could demonstrate that the records were actually perused by the Ld. Addl. CIT as alleged. She did not mention the case-records that she had perused. There is not even a whisper about perusing the seized material or appraisal reports by the Ld. Addl. CIT in the approval. Therefore, as per Ld. AR, there is nothing in the approval which could demonstrate that there was any application of mind by the Ld. Addl. CIT before granting approval in the case of the assessee.

The Ld. AR further submitted that a consolidated approval for all eleven years in the case of the assessee (seven of which are the subject matter of appeal before us) was granted by the Ld. Addl. CIT, whereas section 153D specifically uses the expression ―order of each assessment year.‖ He argued that granting a consolidated approval, rather than granting approval for each assessment year with cogent reasons, and reflecting application of mind to the material on record for each assessment year, is contrary to law. He cited several judgments in which the Hon‘ble High Courts, including the Hon‘ble Jurisdictional High Court, in respect of consolidated approvals for all years, wherein it was held that the approval must be granted with respect to ―each assessee‖ and ―each assessment year.‖ Reliance in this regard was placed on the following decisions:-

The Ld. AR drew our attention to Paragraph 9 of Chapter 3 of the Manual of Office Procedure, Vol. II, issued by the CBDT in February 2003 which is enclosed in Page 277 of the Additional Ground Paper Book 1. He submitted that the CBDT way back in the year 2003 had laid down the procedure for obtaining approval, which mandated that the Ld. AO submit the draft orders well in advance, preferably at least one month earlier, to provide the Ld. Addl. CIT with an adequate opportunity to examine the same judiciously before granting approval. He further submitted that it was also mandated to record in the order sheet the submission of the draft order to the Ld. Addl. CIT and its receipt. He stated that although the manual was issued by the CBDT in relation to Chapter XIV-B of the Act, it equally applies to Chapter XIV of the Act, as held by the Hon'ble Orissa High Court in Sirajuddin & Co. (supra).

Per Contra, the Ld. DR, while supporting the approval granted by the Ld. Addl. CIT u/s 153D of the Act contended that there exists a high presumption of law, which is also codified in section 114(e) of the then Indian Evidence Act, 1872 that all official acts are regularly performed and therefore, the Tribunal has to accept with the presumption that approvals are validly granted. He further stated that merely because the approvals were granted by one letter does not mean that it was not granted for each assessment year. He further contended that the draft assessment orders were sent with respective assessment folders on 27.09.2021 and even if some draft orders were shared on 29.09.2021, the Ld. Addl. CIT would have had approved them in lesser time as the authority would have already been familiar with the substance of assessment shared on 29.09.2021. According to him, the Ld. Addl. CIT had four days to consider the entire record before granting approval. He further stated that the line in approval i.e. ―…records in all above cases are returned herewith…‖ makes it clear that records had been shared with the Addl. CIT while seeking approval. He argued that the Ld. Addl. CIT had been involved in the entire search assessment proceedings, and therefore, the approving authority could grant the approval even within a short span of time after the submission of the draft assessment orders. To support this, the Ld. DR drew our attention to a letter dated 31.08.2021, written by the Ld. AO to the Ld. Addl. CIT, whereby the Ld. AO submitted specific questionnaires emanating from the appraisal report for the Ld. Addl. CIT‘s perusal enclosed at Pages 5 to 25 of the Paper Book Volume I. Referring to this letter and the questionnaires, the Ld. DR submitted that this shows the Ld. Addl. CIT‘s involvement in the assessment proceedings and her awareness of the issues at hand, and therefore, the approval was granted after due application of mind. He further submitted that the approval granted by the Ld. Addl. CIT need not be elaborate and that the approval, as given, sufficiently complies with the legal requirements.

The Ld. DR stated that the burden of establishing the non-application of mind is entirely on the assessee which has not been discharged and merely because there is similarity in language of approval, it could not be relied upon to urge non-application of mind in absence of concrete material. He further argued that in respect of approval in the cases of other assessees granted on the same day, the assessee has not placed any material to show that those assessee have raised similar objection and if the Tribunal is to decide the matter in favour of the assessee, holding that there were lack of application of mind, it would have cascading impact on others.

As far as the issue of presumption u/s 114(e) of Indian Evidence Act is concerned, the Ld. AR, vide his submissions dated 21.02.2025, relied on the judgement of the Hon'ble Supreme Court in the case of Suresh Budharmal Kalani Alias Pappu Kalani v. State of Maharashtra reported in (1998) 7 SCC 337, wherein it was held that the presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning. Referring to the letter dated 31.08.2021 of the Ld. AO relied upon by the Ld. DR, the Ld. AR argued that same does not demonstrate the application of mind by the Ld. Addl. CIT. According to the Ld. AR, the letter at most shows that some general questionnaires, as well as some specific questionnaires based on the appraisal report, had been issued by the Ld. AO, without mentioning the particular assessee in the assessee‘s group. He further submitted that the letter does not mention whether the appraisal reports had been seen by the Ld. Addl. CIT. In fact, the supplementary appraisal report had not even been perused by the Ld. AO until 31.08.2021 as per the said letter, let alone by the Ld. Addl. CIT. He argued that none of the questionnaires attached to the letter, except for one on Page No. 25 of Paper Book Volume I, pertains to the assessee, and even that questionnaire does not involve any questions relating to the addition made in the year to which the questionnaire pertains. The Ld. AR submitted that this letter is not relevant to the assessment proceedings in the case of the assessee, as it mentions questionnaires issued on 23.08.2021, when in fact, no questionnaire was issued on 23.08.2021 in the case of the assessee for any of the years. He also pointed out that the order sheets are completely silent about any correspondence between Ld. AO and Ld. Addl. CIT either during the assessment proceedings or after the submissions of draft assessment orders.

The Ld. AR further argued that the co-ordinate benches of this Tribunal did not agree with the argument of Department that since the Ld. Addl. CITs are being involved in the search assessment proceedings from the receipt of appraisal report till the end of the proceedings, they need not to go through the entire case records including seized material and appraisal report again at the time of granting approval to draft orders and can possibly grant such approval within a short span of their submission for approval. The Tribunal in these cases held that involvement of the Ld. Addl.CIT/JCIT during the search assessment proceedings does not dispense with the requirement of application of mind while granting approval to the draft assessment orders. Reliance in this regard was placed on the following decisions:- a) Daze Construction Pvt. Ltd. vs ACIT, Central Circle-13, New Delhi in to 598/Del/2023 b) M/s Ganesh Builders vs The DCIT Central Circle-1 Chandigarh in c) Shri Krishna Educational Trust vs Dy. CIT Central Circle Dehradun in ITA No.167 to 172/DDN/2019 d) M/s. Maheshwari Coal Benefication & Infrastructure Private Limited. vs Dy. Commissioner of Income Tax in to 119/Nag./2024 e) Mysore Finlease Pvt Ltd vs ACIT in ITA No. 8821/Del/2019 f) Shiv Kumar Nayyar v. ACIT in ITA No.1078/Del/2021 g) Sanjay Kumar v. DCIT in ITA No.429/Del/2024

The Ld. AR, in his submission dated 21.02.2025, further stated that if such an approval is considered as approval for ‗each assessment year,‘ it would render the requirement of passing an order for ‗each assessment year‘ with prior approval under section 153D nugatory. He further submitted that, regarding the issue of the summon to BOTPL on 29.09.2021 in the case of BOTPL and not the assessee, as contended by the Department, it is immaterial whether the summon was issued in the case of the assessee or BOTPL. The only material fact is that a summons was issued to BOTPL on 29.09.2021, which was mentioned in the orders relating to the assessee submitted for approval on that date. Therefore, this could not have been submitted before the evening or late night of 29.09.2021. In response to the Department's contention that draft orders were already submitted on 27.09.2021, and hence there is no question of issuing summon to BOTPL on 29.09.2021 in the case of the assessee, the Ld. AR submitted that the issue concerning BOTPL was not involved in the assessment orders submitted on 27.09.2021 for approval but was involved in the assessment orders submitted for approval on 29.09.2021.

We have considered the rival submissions and perused the materials available on record containing the written submissions made by both the sides and documents placed on record. We have also perused the judgments relied upon and placed by way of Paper Books by both the Counsels with regard to the approval granted by the Ld. Addl. CIT u/s 153D of the Act. The primary issue before us is whether the approval granted by the Ld. Addl. CIT was in accordance with the provisions of the Act, and whether it was done with due application of mind, considering the factual matrix of the case. Section 153D of the Act mandates that no order of assessment under section 153A shall be passed without the ‗prior approval‘ of the Ld. Addl CIT. This requirement is a mandatory requirement of the law. The meaning of the expression ―prior approval‖ used in the Act has been the subject matter of interpretation before the Hon‘ble High Courts including the Hon‘ble Supreme Court on quite a few occasions. The Hon‘ble Higher Courts have unanimously held that the approval must reflect an active and judicious review, demonstrating that the approving authority has applied its mind to the facts of the case, the applicable law, and the draft orders under review. This process ensures that there is no arbitrariness in the framing of assessments and protects both the interests of the revenue and the taxpayer from potential omissions or negligent actions by the Ld. AO. It is not merely a rubber-stamping exercise, but rather a crucial safeguard in the administrative process. The Ld. DR vehemently argued that the role of Ld. Addl CIT, Central Range is totally different from the role of a regular Addl CIT in the normal range. He argued that in a Central Range, the Ld. Addl. CIT is involved in the search assessment proceedings right from the time of receipt of appraisal report from the Investigation Wing and is involved with the Ld. AO from time to time while issuing various questionnaires to the assessee. The Ld. Addl. CIT in Central Range also examine the seized documents in detail immediately after receipt of the appraisal report and provides able assistance to the Ld. AO about the interpretation of the said seized documents while issuing questionnaires to assessee, examining the replies filed by the assessee and drawing conclusions thereon. Hence, it is very easy for the Ld. Addl. CIT to grant approval of the draft assessment order on the same day since he is involved with the assessment proceedings right from the inception. Accordingly, he argued that the objection raised by the Ld. AR has no force. Further, the Ld. DR vehemently argued that bare reading of provisions of section 153D of the Act talks only about existence of approval from the Ld. Addl. CIT. There is no mention of application of mind on the part of the Ld. Addl. CIT or the approving authority in the said section. The expression ‗application of mind‘ is only provided by the judicial decisions and not provided in the statute. Hence the Ld. DR argued that literal interpretation is to be given to the provisions of section 153D of the Act which does not provide for application of mind of the approving authority and hence any other interpretation contrary to the same would only result in re-writing the law. The Ld. DR also argued that the assessee files details at the last moment and that is why the approval is obtained from Ld. Addl CIT in the last moment. The Ld. DR also argued that the Ld. Addl. CIT does not look into the figures and even if there are mistakes in the figures, the same would not vitiate the assessment proceedings. The Ld. DR also relied on the decision of Hon‘ble Karnataka High Court in the case of Rishabchand Bhansali vs DCIT reported in 267 ITR 577 (Kar) and also on the guidelines issued by the Central Board of Direct Taxes (CBDT) dated 22.12.2006 on the subject of Search and Seizure Assessments.

At the outset, we find that the decision relied by the Ld. DR of Hon‘ble Karnataka High Court referred supra is factually distinguishable as it was dealing with the issue of whether it is mandatory on the part of the Ld. JCIT or Ld. Addl CIT to give opportunity of hearing to the assessee before granting approval of draft assessment orders under the erstwhile block assessment proceedings in terms of section 158BG of the Act . This is not the issue involved herein in the instant case. The issue here is whether the approval has been granted by the Ld. Addl CIT u/s 153D of the Act after due application of mind and not the question of granting opportunity to the assessee before granting approval. Hence the reliance placed by the revenue on the decision of Hon‘ble Karnataka High Court referred supra would not advance the case of the revenue. Further reliance was placed by the Ld. DR on the CBDT guidelines dated 22.12.2006. We have gone through the said guidelines placed on record. On perusal of the said guidelines, we find there is not even a whisper regarding the approval proceedings to be granted u/s 153D of the Act by the competent authority. It only says that Ld. JCIT/ Ld. Addl CIT is also part of the assessment proceedings right from the time of receipt of appraisal report. The said guidelines only reiterate the statutory provisions and the manner in which search assessments are to be framed by the Ld. AO in the manner known to law. It no where even whispers that approval u/s 153D of the Act could be granted by the Ld. JCIT / Ld. Addl CIT without any application of mind. In any event, in our considered opinion, the CBDT guidelines relied upon by the Ld. DR does not have any statutory force. Hence the reliance placed thereon would not advance the case of the revenue.

The Ld. Addl CIT is supposed to examine the seized documents, questionnaires raised by the Ld. AO on the assessee seeking explanation of contents in the seized documents, replies filed by the assessee in response to the questionnaires issued by the Ld. AO and the conclusions drawn by the Ld. AO vis- à-vis the said seized documents after considering the reply of the assessee. All these functions, as stated earlier, are to be performed by the Ld. Addl CIT in a judicious way after due application of mind. Even though as vehemently argued by the Ld. DR, the Ld. Addl CIT is involved with the search assessment proceedings right from the time of receipt of appraisal report from the Investigation Wing, still, the Ld. Addl CIT, while granting the approval u/s 153D of the Act has to independently apply his mind dehors the conclusions drawn either by the Investigation Wing in the appraisal report or by the Ld. AO in the draft assessment order. The copy of the appraisal report submitted by the Investigation Wing to the Ld. AO and Ld. Addl CIT are merely guidance to the Ld. AO and are purely internal correspondences on which the assessee does not have any access. Moreover, the Act mandates the Ld. AO to frame the assessment after getting prior approval from Ld. Addl CIT u/s 153D of the Act. The Ld. Addl CIT getting involved in the search assessment proceedings right from inception does not have any support from the provisions of the Act as no where the Act mandates so. The scheme of the Act mandates due application of mind by the Ld. AO to examine the seized documents independently dehors the appraisal report of the Investigation Wing and seek explanation/clarifications from the assessee on the contents of the seized documents. When the scheme of the Act provides for a leeway to both the Ld. AO as well as the Ld. Addl CIT to even ignore the conclusions drawn in the appraisal report by the Investigation Wing and take a different stand in the assessment proceedings, the fact of Ld. Addl CIT getting involved in the search assessment proceedings right from the receipt of copy of appraisal report, as argued by the Ld. DR, has no substance. In other words, irrespective of the conclusions drawn in the appraisal report by the Investigation Wing, both the Ld. AO and the Ld. Addl CIT are supposed to independently apply their mind in a judicious way before drawing any conclusions on the contents of the seized documents while framing the search assessments. As far as the argument of the Ld. DR that the details were normally filed by the assessee at the last moment is concerned, the Ld. AO has got every right to reject the said replies if not filed within the stipulated time. It is not the case of the revenue that the details were filed by the assessee in the instant case at the last moment. Even if it is so, as stated above, it is the prerogative of the Ld. AO to accept the said letter containing details or reject the same as it was not filed within the stipulated time. On the contrary, if the Ld. AO himself grants time to the assessee to furnish the details till the last moment, then no fault could be attributed to the assessee. In such circumstances, the only irresistible conclusion that could be drawn is that the Ld. AO is not serious about the statutory deadlines provided in the Act. In our considered opinion, if the arguments of the Ld. DR are to be appreciated that the Ld. Addl CIT need not apply his/her mind while granting approval of the draft assessment orders u/s 153D of the Act as it is not provided in section 153D of the Act, then it would make the entire approval proceedings contemplated u/s 153D of the Act otiose. The law provides only the Ld. AO to frame the assessment, but, certain checks and balances are provided in the Act by conferring powers on the Ld. Addl CIT to grant judicious approval u/s 153D of the Act to the draft assessment orders placed by the Ld. AO.

The Hon‘ble Supreme Court in the case of M/S Sahara India (Firm), Lucknow vs CIT reported in 2008 (4) TMI 4 - Supreme Court, in para 6 observed as under:-

It would be relevant to address the provisions of Section 14 of CMJ University Act, 2009 regarding the appointment of the Chancellor of the University and we find that the said provisions are pari material with section 153D of the Income Tax Act as under:-

It is the case of the appellants that despite repeated requests made to the Visitor of the CMJ University seeking approval for the appointment of the Chancellor, no action was forthcoming. Therefore, a letter was sent to the State on 1st April, 2010 stating that ‗if the Visitor did not provide approval by 25th April 2010, it would be deemed as approval‘. Since no response was received from the Visitor, the appellants acting in a bona fide manner assumed that such inaction/omission on part of the Visitor would tantamount to ‗deemed approval‘ for the appointment of the Chancellor. This contention, in our opinion, lacks merit, has no substance and is thus untenable on the face of the record.

It is trite that in the absence of any statutory flavour, a provision cannot be interpreted to create a legal fiction in such eventuality, and creating a fiction through judicial interpretation may amount to legislation, which is exclusively the domain of legislature. In this regard, we are benefited by the judgment of this Court in the case of Sant Lal Gupta & Ors. v. Modern Co- operative Group Housing Society Ltd. and Ors.27, wherein while interpreting Rule 36(3) of the Delhi Co-operative Societies Rules, 1973, it was held that:- 8. Rule 36(3) of the Rules, reads as under:- 36. Procedure for expulsion of members- (1)-(2) (3) When a resolution passed in accordance with sub-rule (1) or (2) is sent to the Registrar or otherwise brought to his notice, the Registrar may consider the resolution and after making such enquiry as to whether full and final opportunity has been given under sub-rule (1) or (2) give his approval and communicate the same to the society and the member concerned within a period of 6 months. The resolution shall be effective from the date of approval.

To the same effect are the decisions of the Hon‘ble Allahabad High Court in the cases of PCIT vs Sapna Gupta reported in 147 taxmann.com 288 (Allahabad), PCIT vs Subodh Agarwal reported in 149 taxmann.com 373 (Allahabad) & PCIT and Anr vs Siddartha Gupta reported in 450 ITR 534 (All), which dealt with the requirement of prior approval u/s 153D of the Act for passing order under section 153A of the Act. The relevant observations made by Hon‘ble Allahabad High Court in the case of Siddhartha Gupta (supra) are reproduced hereunder:-

The above-mentioned judicial pronouncements have settled the proposition of law that for a valid approval u/s 153D of the Act, the Ld. Addl. CIT must apply his mind to the draft assessment orders and appraise the entire record, including the seized material and appraisal reports, so as to assess the factual and legal aspects and ascertain that the entire material has been examined by the Ld. AO before preparing the draft assessment order. The approval proceedings are quasi-judicial in nature and require the Ld. Addl. CIT to apply his mind in a judicious manner. To enable the Ld. Addl. CIT to apply his mind judiciously, it is the bounden duty of the Ld. AO to place before him not only the draft assessment orders but also the entire case records, including the seized material and appraisal reports, well in advance, i.e., much before the time-barring date as prescribed in Paragraph 9 of Chapter 3 of the Manual of Office Procedure, Vol. II, issued by the CBDT in February 2003 which is enclosed in Page 277 of the Additional Ground Paper Book 1. The placing of records before the approving authority well in time has been emphasized by the Hon‘ble Orissa High Court in the case of Serajuddin &Co. (supra) against which the SLP of the Department has already been dismissed by the Hon‘ble Supreme Court reported in 163 taxmann.com 118 (SC). The relevant observations made by the Hon‘ble Orissa High Court in this regard are reproduced hereunder:-

We have carefully examined the approval granted by the Ld. Addl CIT u/s 153D of the Act in the present case. Upon reviewing the approval letter, we observe that the Ld. Addl. CIT, in granting approval to the draft assessment orders for the assessee pertaining to the 11 assessment years, i.e., AYs 2010-11 to AY 2020-21, merely states that the approval was accorded after perusing the draft assessment orders and case records, without providing any further details. There is nothing in the approval letter which could demonstrate that the Ld. Addl CIT had actually applied her mind before according approval to the draft assessment orders under section 153D. The bare minimum requirement of specifying what case records had been perused by the Ld. Addl. CIT before granting approval to the draft assessment orders was not complied with by her, let alone specifying the conclusions and reasons derived by her on the basis of such examination. There is no whisper in the approval about the seized material or the appraisal report having been perused by the Ld. Addl. CIT, despite these documents forming the basis of the search assessment proceedings. Moreover, it is also noticed that the draft assessment orders in the case of assessee for 11 years were submitted to the Ld. Addl. CIT only on 27.09.2021 & 29.09.2021 which were approved by the Ld. Addl. CIT on 30.09.2021 by a common approval. Further, it is also demonstrated by the Ld. AR by placing on record the assessment orders of 86 other cases enclosed in Pages 1 to 177 of the Additional Ground Paper Book 1 that apart from granting the approval in the case of assessee, the same Ld. Addl. CIT approved 86 other orders pertaining to different assessees in these three days. Taking all these facts together, in the light of the requirements of the statute and the decided judicial precedents relied upon hereinabove, it could be safely concluded that it would not have been possible for the Ld. Addl. CIT to apply her mind judiciously before according approval in the case of the assessee.

The paucity of time available with the Ld. Addl. CIT to apply her mind before granting approval was also the subject matter of consideration before the Hon‘ble Orissa High Court in the case of Serajuddin (supra). In this case, similar to the case of the assessee, the draft assessment orders for seven assessment years were placed for approval on 27.12.2010 and 29.12.2010, and were approved by that Ld. Addl. CIT on 30.12.2010. The Hon‘ble Court in these circumstances held that Ld. AO should have submitted the draft assessment orders ―well in time‖ and since the orders were submitted to that Ld. Addl. CIT just two days prior to the deadline, it put the approving authority under great pressure and did not allow him sufficient time to apply his mind. Further, the approval granted by that Ld. Addl. CIT / Ld JCIT for a number of draft assessment orders within a single day has also weighed with the Hon'ble High Courts in holding that there was no application of mind by the approving authority. In the cases of Shiv Kumar Nayyar (supra), Subodh Agarwal (supra), Sapna Gupta (supra), and Siddartha Gupta (supra), where the Ld. Addl. CIT/Ld. JCIT approved 43, 38, 85, and 123 draft assessment orders respectively in a single day, the Hon'ble High Courts, including the Hon‘ble Jurisdictional High Court, held such approvals to be mechanical in nature and without proper application of mind. Accordingly, the decisions of the co-ordinate benches of the Tribunal, which quashed the assessment orders passed pursuant to such approvals, were affirmed.

As noted in the instant case, the approval is completely silent on the issues involved and grants an omnibus approval without any discernible thoughtful process. This may be due to the Proforma approval used by the Ld. Addl. CIT to grant approvals, as demonstrated by the Ld. AR. We have carefully perused the approvals dated 29.09.2021 and 30.09.2021, placed before us by the Ld. AR, which were given in the cases of two other assessees from the same group by the same Addl. CIT‘s office, as well as the approvals dated 29.03.2023 and 30.03.2023, granted by the same Addl. CIT‘s office in the cases of two other assessees. We find that the language of all these approvals is identical. Therefore, we agree with the contentions of the Ld. AR that the approval granted in the case of the assessee is nothing but a Proforma approval, especially considering the fact that the language of the approval remains unchanged even after two years and despite the change in the person holding office. The omissions (in the form of unfound images in the uploaded order in ITBA portal though it was available in the manual order) and discrepancies in the order sheets of the assessment proceedings in the instant case, as pointed out by the Ld. AR, further demonstrates that assessment records were not perused by the Ld. Addl. CIT before granting approval. Similar issue has been addressed by the Hon‘ble Jurisdictional High Court in PCIT v. Anuj Bansal reported in 165 taxmann.com 2 (Delhi), wherein the Hon‘ble Court held that where an approval is granted without noticing discrepancy in assessment order or assessment record, such a mechanical approval would be invalid in the eyes of law. The relevant operative part of the said order is reproduced below:-

It is observed that the Court in the case of Sapna Gupta (supra) refused to interdict the order of the ITAT, which had held that the approval under Section 153D of the Act therein was granted without any independent application of mind. The Court took a view that the approving authority had wielded the power to accord approval mechanically, inasmuch as, it was humanly impossible for the said authority to have perused and appraised the records of 85 cases in a single day. It was explicitly held that the authority granting approval has to apply its mind for "each assessment year" for "each assessee" separately.

Notably, the order of approval dated 30.12.2020 which was produced before us by the learned counsel for the assessee clearly signifies that a single approval has been granted for AYs 2011-12 to 2017-18 in the case of the assessee. The said order also fails to make any mention of the fact that the draft assessment orders were perused at all, much less perusal of the same with an independent application of mind. Also, we cannot lose sight of the fact that in the instant case, the concerned authority has granted approval for 43 cases in a single day which is evident from the findings of the ITAT, succinctly encapsulated in the order extracted above.

Therefore, under the facts of the present case, considering the foregoing discussion and the enunciation of law settled through judicial pronouncements discussed hereinabove, we are unable to find any substantial question of law which would merit our consideration.‖ 64. The Ld. DR by presenting the letter dated 31.08.2021 written by the Ld. AO to the Ld. Addl. CIT, wherein specific questionnaires were submitted for her perusal, attempted to demonstrate that the Ld. Addl. CIT had been involved in the search assessment proceedings from the outset. Accordingly, it was argued that the approval granted by her to the draft assessment orders in the case of the assessee was made with due application of mind. However, we do not agree with the contentions of the Ld. DR, either factually or legally. We find that there is nothing in the letter that demonstrates application of mind by the Ld. Addl. CIT. Furthermore, none of the questionnaires attached to the letter pertain to the assessee, except for one, which also does not address any of the issues involved in the assessment of that year. Therefore, merely presenting a letter demonstrating correspondence between the Ld. AO and the Ld. Addl. CIT during the search assessment proceedings, without showing actual application of mind by the Ld. Addl. CIT before granting approval u/s 153D of the Act, which is a mandatory requirement under the law, does not assist the case of the revenue. Hence, when from the facts on record it clearly comes out that there was no application of mind by the Ld. Addl. CIT while granting approval in a mechanical manner u/s 153D of the Act, the benefit of presumption under section 114(e) of the Indian Evidence Act that all official acts are regularly performed is not available to the revenue in the instant case.

As far as the contention of the Ld DR, that other assessees may not have raised similar objections to such approval in their cases, and that if the issue is decided in favour of the assessee, it would have a cascading impact on their assessments, is concerned, we wish to state that the issue of approvals granted in a mechanical manner without the application of mind u/s 153D of the Act is no longer res integra. Furthermore, merely because other assessees may not have objected to the manner in which the approval was granted in their cases does not mean the same should be sustained in the case of the assessee. We also do not agree with the contention of the Ld. DR that since the judgments relied upon by the assessee were delivered in 2023 and 2024, the Tribunal should exercise caution in applying them to the approval granted in 2021. The CBDT manual, which prescribes the manner of obtaining approval in search cases, has been in existence since 2003, and it has been held to be binding upon the Department in the case of Serajuddin (supra). Moreover, the manner in which approval should be granted by the superior officer under the Act has been expounded by the Hon'ble Supreme Court and Hon‘ble High Courts for decades, with the requirements of applying one's mind and perusing relevant records before granting approval being indispensable since then. Additionally, even in the judgments relied upon by the assessee, the Hon'ble High Courts upheld the decisions of co-ordinate benches of this Tribunal, where approvals granted in 2010, 2017, 2018, and 2019, much prior to the approval granted in the case of the assessee in 2021, were held invalid. Lastly, the issue is jurisdictional in nature, and when there is a judgment of the Hon'ble Jurisdictional High Court squarely on the issue which is binding and it cannot be ignored on the ground that following it will have a cascading impact on other cases or that it did not exist when the decision was taken by the concerned officers.

In view of the aforesaid observations and respectfully following the judicial precedents relied upon hereinabove, we have no hesitation in holding that the approval u/s 153D of the Act has been granted by the Ld. Addl CIT in the instant case before us in a mechanical manner without due application of mind, thereby making the approval proceedings by a high ranking authority, an empty ritual. Such an approval has neither been mandated by the provisions of the Act nor endorsed by the decisions of the Hon'ble Orissa High Court; Hon'ble Allahabad High Court and Hon‘ble Jurisdictional High Court (Delhi High Court) referred to supra. Hence, we find lot of force in the arguments advanced by the Ld. AR in support of the additional ground raised with regard to section 153D of the Act. Hence the assessment framed for the Asst Year 2011-12 by the Ld. AO is hereby held as void abinitio and is hereby quashed.

Since the entire assessment framed in the hands of the assessee is declared illegal and bad in law for more than one reason as narrated in detail supra, the other legal grounds and grounds on merits raised by the assessee need not be gone into, as adjudication of the same would be merely academic in nature and, hence, they are left open.

In the result, the appeal of the assessee for Asst Year 2011-12 is allowed.

As stated in the earlier part of this order, the facts and legal submissions are exactly identical for the Asst Years 2012-13 to 2017-18 with those of Asst Year 2011-12. Hence the decision rendered hereinabove for Asst Year 2011-12 shall apply mutatis mutandis for Asst Years 2012-13 to 2017-18 also, except with variance in figures.

To sum up, all the appeals of the assessee are allowed.