SHRI PRAVINBHAI RAVJIBHAI DESAI,,NADIAD vs. THE INCOME TAX OFFICER, WARD-5,, NADIAD

आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-

These two sets of six appeals are filed by filed by assessee against the order of ld. CIT(A). Out of these six appeal, three appeals ITA Nos. 2860 to 2862/Ahd/2016 are pertained to penalty levied u/s. 271(1)(c) of the act on the quantum addition made in the assessment years 2004-05, 2005-06 & 2007-08 of different assessment orders made u/s. 153A r.w.s. 143(3) of the act. The first three appeals IT(SS)A Nos. 115 to 117/Ahd/2014 are against the two orders of ld. CIT(A) for sustaining the addition made by the assessing officer u/s. 153A r.w.s. 143(3) vide order dated 11th December, 2013 in respect of assessment years 2004-05 and 2005-06 passed by CIT(A) order dated 10th December, 2013 and for assessment year 2007-08 passed by CIT-4, Ahmedabad. The first set of appeals vide IT(SS)A No. 115 to 117/Ahd/2014 against the decision of ld. CIT(A) in sustaining addition made u/s. 153 r.w.s. 143(3) are related to more or less oncommon issue, therefore, for the sake of convenience, we proceed to adjudicate all these appeals by this common order.

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“1.1 The order passed u/s.250 on 11-12-2013 for A.Y.2004-05 by CIT(A)-IV, Ahmedabad upholding the addition of Rs.15.50 and Rs.48,499 is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned additions. 2.1 The Ld. CIT(A) has grievously erred in law and on facts in confirming the addition of Rs. 15,50,000 as compensation received from M/s Darshan Associates towards surrender of tenancy rights. 2.2 That in the facts and circumstances of the case as well as in law, the Ld. CIT(A) ought not to have upheld the addition of Rs. 15,50,000 as compensation received from M/s Darshan Associates towards surrender of tenancy rights . 2.3 without prejudice to the above and in alternative, both the lower authorities have erred in determining the compensation for surrender of tenancy rights in the hands of the appellant. 3.1 The Ld. CIT(A) has grievously erred in law and on facts in making the addition of Rs. 73,800 as unaccounted investment. 2.2 That in the facts and circumstances of the case as well as in law, the Ld. CIT(A) ought not to have enhanced the income by making the addition of Rs. 73,800 as unaccounted investment. It is, therefore, prayed that the additions upheld and enhanced by the CIT(A) may kindly be deleted.” ITA No. 115/Ahd/2014 (The additional Grounds of appeal) “4.1 The notice issued on 29-8-2008 u/s. 153A of the Act on the basis of seized material being a personal laptop of Shri Rameshbhai B. Shah found from the searched premises of said Shri R.B. Shah is without jurisdiction and void ab initio so that the same deserves to be quashed. 4.2 The Ld. CIT(A) has failed to. appreciate that when no incriminating material was found and seized during the course of search at the premises of the appellant and notice u/s 153A dt 29-8- 2008 was issued on the basis of seized material being a personal laptop of Shri Rameshbhai B. Shah found from his searched premises, the entire proceedings initiated u/s 153A were illegal, unlawful and bad in law. 3. Without prejudice to the other grounds and in the alternative, both the lower authorities have failed to appreciate that the alleged compensation of RS. 15,50,000/- for surrender of tenancy rights was chargeable in the year of transfer within the meaning of Section 2(47) of the Act i.e. A.Y. 2005-06.”

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running of hotel Blue room. During the course of search in his statement Shri Rameshbhai B. Shah has admitted that he has given total amount of Rs. 59,79,400/- to the assessee for surrender of tenancy rights. The assessee and his associate in the name of firm M/s. R.B. Patel and company was in occupation of the premises of Ghantakarn” complex and they were in dispute with Shri Rameshbhai B. Shah regarding compensation to be paid for surrendering of tenancy rights. Subsequently, the settlement was made between two and Shri Rameshbhai V. Shah has stated that he has paid total compensation of Rs. 59,79,400/- to the assessee out of which Rs. 34 lacs were given in cash and two flats in “Jalsagar E Block” worth Rs. 23 lacs were also given to the assessee. It is also stated that out of this total amount Rs. 15,50,000/- were pertaining to assessment year 2004-05 and Rs. 44,27,400/- were pertaining to assessment year 2005-06. On this account Shri Rameshbhai B. Shah has surrendered Rs. 60 lacs and disclosed the same in his return of income. Consequently, survey action related to the search action of Shri Rameshbhai B. Shah was also carried at Hotel Shivahray. The chronology of events, the assessing officer has mentioned in para 6.8 of the assessment order. The same is reproduced as under:- “6.8 Chronicles of the events: From the gamut of events narrated in foregoing paragraphs from the date of search to the date of last compliance on 27.09.2010, the following facts are gathered: The assessee and his associates had occupied the premises of Ghantakarna Complex under the name & style of M/s R. B. Patel & co. The said entity hiad dispute with Shri. Rameshbhai B Shah for claim of compensation. There was a long standing dispute between the tenants & landlords. The original tenants were Gordhanbhai Patel, Nagjibhal Patel, & Bulakhidas Patel since 1944-45. The original partnership firm namely R.B.Patel Bros & Co was run by them. Many deliberations / negotiations and Coxirt proceedings had taken place in hetween. Many hands had been changedL in the so-called firm. The one, Shri Balvant Varia was also a key person. He and others entered into an understanding (so-called deed) on 16.06.1^84 and joined as partners. Based on the copy of some judgment dated 30.04.2001 of 2nd Extra-Asstt Judge-Kheda, Nadiad, it transpired that Shri Pravinbhxai Raojibhai Desai, the assessee under review and his two brothers, Shri Bhupendrahliai Raojibhai Desai and Shri Shaileshbhai

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Raojibhai Desai were added to the entity viz M/s R. B. Patel Bros and Co of Nadiad. Still the issue remained unanswered as to how the assessee was 15% share holder in the so- called firm. From the copy of judgment, it has been enlightened that Shri. Balvant Varia tried to withdraw the civil suit by filing purshih but could not succeed. Subsequently, Bhupendra Varia died. In his statement dated 29.04.2008, Shri. Rameshbhai B Shah had stated that earlier, up to the year 2002, settlement of three tenants was made by paying Rs. 79,00,000 by cheques and cash. The assessee and his two brothers, Shri Bhupendrabhai Raojibhai Desai and Shri Shaileshbliai Raojibhai Desai were residual parties of pending appeal. The 2nd Court restored injunction on impugned property. > As per statement of Shri. Rameshbhai B Shah, the assessee was paid compensation against out of Court settlement at Rs. 59, 67,400 including 2 flats worth Rs. 23, 00,000. > The receipts seized during the coxirse of search action may be few, however, it is a specimen proof that the assessee had received cash against the cheques of Rs. 34,00,000. > The assessee admitted about the receipt of two flats but had stated that the flats were worth Rs. 13, 00,000. In fact, the market value per flat was more Rs. 11,50,000 as there were sale instances to this effect of E block Jalsagar, as has been seen in the laptop data seized from the premises of Shri Ramenshbhai Babubhai Shah. At least, it becomes evident that the assessee had received two flats actually worth Rs. 23,00,000/-, free of cost. In the course of the search proceedings, the assessee had stated that the difference of Rs. 7, 33,000/- (Rs. 13, 00,000 less Rs. 5,67,000 paid by his sons) may be treated as his gain for vacating tenancy rights or his remuneration. Thus, the assessee admitted to have enjoyed the benefit of Settlement out of Court, but has only denied the quantum thereof. From the copy of ledger account "2 Darshan 1-4-2003 (New)" "Pravinbhai Blue room 60.27", it is seen that the assessee received the compensation of Rs. 15,50,000/- in Financial year 2003-04 and Rs. 44,27400/- in the Financial year 2004-05. In the entries pertaining to F.Y. 2004-05, there is entry of Rs. 27,400/- for expenses incurred on documentation charges. Shri Rameshbhai B Shah incurred these charges on stamp papers etc on behalf of the assessee. The stamp papers were worth Rs. 20,400/- (Rs. 10,200 for each document). Stamp Papers are purchased by the purchaser in common parlance. The assessee, Shri Pravin R Desai, had purchased stamp papers in other transaction of the purchase of property of Rs. 21,22,000.00 from Bhikhubhai S Patel & others in the year 2006. In the present situation, i.e. in the transaction of two flats, the perusal of stamp paper shows that the assessee did not purchase them. Neither Sachin P Desai nor Saxidip P Desai in whose name the flats were registered on the direction of the assessee, their father, had purchased the Stamp Papers. These expenses were also not found debited in the books of Hotel Blue-Room a partnership firm of the assessee and his two sons, though they have claimed th.at purchase consideration of these flats were paid by this concern. The reason is that, the stamp papers were purchased by Vivek builders, one of the concerns of Shri. Rameshbhai B Shah. This evidence also makes it clear ttmat each and every money and money's worth to the extent of Rs. 23, 00, 000, for these two flats were met by Shri. Rameshbhai B Shah. > Thus, the account of the assessee maintained in the lap-top of Shri Rameshbhai B Shah justifies that the transactions so booked in the laptop were not something of the kind of child's play. This fact also throws light upon the fact that the assessee had received the flats without consideration, which has been registered in the names of his two sons, on his direction. Moreover, Shri Rameshbhai B Shah had given treatment of giving two flats of Rs. 23,00,000 as payment in cash and by crediting 'Jalasagar E' block a/c. Hence the amounts of Rs. 15, 50,000/- pertaining to F. Y. 2003-04 and Rs. 44,27,400 pertaining to F. Y. 2004-05, appearing in the data of laptop as discussed earlier, which includes consideration of these two flats has to be treated as income from other sources not disclosed by the assessee. From the Civil Suits so filed, it becomes palpably evident that the assessee and his two brothers were the remaining appellant parties who strongly desired compensation from

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Shri. Ramesh B Shah out of the Court. The act of the assessee of bringing injunction on the property suggests that he wanted compensation from Shri R. B. Shah. > The clarifications submitted by the assessee are suffering from mutual contradictions. On one hand he stated in his reply that he approached the Court for the possession of tenancy rights. On the other hand, lie has stated that he did not get possession as he lost in the lower Court. However, perusal of judgment dated 30.04.2001 of 2nd Extra-Asstt Judge-Kheda, Nadiad, reveals that in none of the case, the assessee agitated for possession of land but he agitated for bringing injunction on the impugned land which had been purchased by Shri Rameshbhai B Shah in 1996. > The assessee was provided with the copies of relevant portion of statement of Shri. R B Shah, copy of account of the assessee and cash a/c maintained by Shri R. B. Shah in the laptop, as desired by him. The assessee did not explicitly state as to when he wanted to cross examine Shri. Rameshbhai B Shah. The assessee only stated that he would think whether to cross examine only after going through the documents received from the department. > The assessee has not been able to prove that the signatures on the acknowledgment receipts of him and his son were forged signatures. Hence, on few supporting evidences and overall surrounding facts, as discussed earlier in the order, it is clear that the assessee had received amount worth Rs. 34,00,000 in cash. > The assessee was asked to give the details of source of cash credits reflected by him, by his two sons and credits in the bank account of Smt. Nitaben P Desai, the wife of the assessee. The ass'essee did not give any explanation of deposits in the bank of his wife except a chart in narrative form that too in a cryptic way. Many columns were kept blank. More specifically, the columns of the entries of cash deposits were kept blank. In respect of cash credits in his own case and two sons, the assessee offered explanation that there were cash earnings inform of some cash received from some transaction and therefore on suo-moto basis was shown as income from other sources in the return filed u/s 139(1) of the Act on voluntary basis. The very act of the assessee suggests about the pre- ponderence of probabilities. By giving such sparse, sporadic and circumlocuted reply, the assessee shunned from I giving the origin of and source of cash credits. The surrounding!/ circumstance also throws light on the fact that the assessee had received money from Shri R. B. Shah as confirmed and admitted by Sim R. B. Shah, for out of court settlement.” It was stated that Shri Pravin Desai and others had been running a partnership firm namely M/s. R.B. Patel and Brothers in the premises of Indumati Family Trust where the Ghantigran complex was created. It was stated by the assessee that the said firm was not registered and his share in the unregistered firm was 15% which was tenant of Indumati family Trust. During the course of post search inquiry, statement of Shri Pravin Desai was recorded as reproduced at page no. 10 and 11 of the assessment year and the assessee was confronted with document seized from Hotel Shivashray. These relevant statements are reproduced as under:-

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Q-6 You are having two flats in Jalsagar Apartment, when were they bought? Source of income as well as investment be given, also inform when flats were sold? A. In this context I have deposed in the course of search in Q,7of my statement dated 03-CK3-2008 that in Jalsagar Apartment I got two flats for relinquishment of tenancy right. The documents for which have been executed in the name of my two sons’ Shri Sachinbhai and Sandipbhai on 03.03.2005 at the consideration of Rs.133500/- each (Rs.1,21,000/- plums registration fee for stamp duty). The total cost of two flats Rs. 2, 67,000/- are accounted in the books of Hotel Blue Room. Afterwards, on OS-03-2006 Rs. 3,00,000/~ were paid to Padmalaya Construction vide cheque. This is also accounted in the books of hotel Blue Room. From the above flats, flat of Sundeep P Desai was sold on 09-06-2006 for consideration of Rs.7,50,000/-. I will submit copy of sale deed afterwards. Another flat of Sachin P Desai was sold on 14-09-2007 for the consideration of Rs.7,00,000/- of which I will submit the copy of sale deed afterwards. The profit on account of sale of these flats is accounted in the books oaf Blue Room. Q-ll Please state whether you have received any money from the people those who constructed Ghantakarn Complex for vacating the land? Ans. Before Ghantakarn Complex was built, a firm namely M/s R. B. Patel & Bros was functional on the said land. The said land was belonging to some Indumatiben Family Trust and that firm (M/s R. B. Patel & Bros) was paying rent for land at Rs.250/- per month to the Trust. One of the partners of M/s R.B. Pate/ & Brother was retired and I was kept with the share @ 15% partnership for which no partnership deed was registered as other partners' signature were not there. On account of sale transaction of the trust, we have not received cash amount. But, for the consideration, we have received two flats in Jalsagar Apartment for which we have paid Rs.5,67,000/-. That apart, owners of Ghantakarn Complex including Rameshbhai Shah and others have promised to give a shop in the Ghantakarn Complex, which has not been allotted till date.

5.7.1 Another statement of Shri Pravinbhai Desai was recorded on O7-005-2008. [As the statement was recorded in Gujarati language, the free translation reads as under.] Q-2 Q-2 Darshan Associates is the firm of Ramesh Babubhai Shah which has built Ghantakarn Complex. According to your earlier statement dated 16-04-2008, you had surrendered tenancy right on the said land. Did you receive any amount or any remuneration from Ramesh Babubhai Shah or any of his firm for vacating tenancy rights? Please give the details- Ans: As deposed in my earlier statement recorded on 16-04-2008, I have to submit that against surrendering of rights I had received two flats in consideration. The cost of flat would be 12 to 13 lacs approximately. However, I paid Rs. 5, 67,000/~. The difference of Rs. 7,33,000/~-between Rs.13,00,000 and 5,67,000 may be my gain for vacating tenancy rights or may be remuneration. Other than this, I have not been paid any cash. Q-3 You are hereby asked to recollect whether you had received any cash? Please state. Ans. I recollect that no cash was received by me.

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Q-4 Now I am showing you page Nos. 92 to 102 of Annexure LF-3 impounded from Hote I Shivashray. Page Nos. 92 to 95 are the receipts on which there is mention of cash paid to Pravin Raojibhai Desai, the details of which are as under: Date Amount 1 15-4-2004 1,00,000 The particulars on this receipt are that, in lieu of Oil Mill Rs. 1,00,000 has been given. Balance 4 lacs paid in cash and take back the cheque of Rs. 5 lacs. 2 19-4-2004 1,00,000 3 01-5-2004 2,00,000 4 08-5-2004 1,00,000 Q4 Page 96 to 102 are blank cheques, the details of which are narrated on page no. 92. In this context what do you want to say?(on next page) Ans. I have not taken any money. Signatures appearing on page No 92 & 93 are not mine. To vacate tenancy right, I received only 2 flats in Jalsagar Building and have explained that earlier.

Q.5 In the course of recording of statement of Shri Ramesh B Shah, file /Vo 5 in the name '2Darshan 1.04.2003(New)' was found on the lap-top in which your ledger account maintained as "Pravinbhai (Blue Room) 60.27"enlighted that during the Financial year 2003-04 Rs. 15,50,000/~ and during the Financial year 2004-05, Rs. 44,27400/- were paid to you-What have to explain about this? Ans This account is false. I have not been given any cash. I do not wish to depose other than this.

In his statement, the assessee has stated that he has not received any cash amount from the people who has constructed Ghantakarn” complex for vacating the land. However, he has admitted that he has received two flats in Jalsagar apartment for which he has paid Rs. 5,67,000/-. The assessing officer was of the view that the account of the assessee found in the laptop of Shri R.V. Shah was true and correct reflecting the real transaction. The assessing officer has observed from the aforesaid account that Shri R.V. Shah has paid Rs. 15,50,000/- to the assessee in F.Y. 2003-04 and Rs. 44,

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27,400/- in F.Y. 2004-05. Therefore, after considering the events stated in the above cited chronology of events, the assessing officer has made addition of Rs. 15,50,000/- as undisclosed income of the assessee for assessment year 2004-05.

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made in the case of the assessee was without jurisdiction and the same required to be quashed. The ld. counsel has further contended that main addition for Rs. 15.5 lacs was made on the basis of statement of Shri R.V. Shah and documents found and maintained in the laptop seized from the residence from Shri R.V. Shah on 3rd April, 2008 and documents found from the survey at the hotel Shivashray. Ultimately, the aforesaid additions have been made on the basis of material found from the third party. Therefore, the proceedings initiated u/s. 153A of the act by the assessing officer was bad in law, invalid and without jurisdiction. The ld. counsel has further submitted that the scope of proceedings u/s. 153A is limited to (i) the incriminating material found (ii) such material should have been found during the course of search of the concerned assessee and the scope of power of assessing officer to initiate proceedings u/s. 153A does not extend to the incriminating material found (i) during the course of survey u/s. 133A and (ii) during the course of search other than concerned person. It is contended that in case of first contingency the normal assessment u/s. 143(3)/147/144 to be made whereas in the second contingency the assessment u/s. 153C would be made. The ld. counsel has also placed reliance on the decision of Jurisdictional High Court in the case of Pr. CIT vs. Saumya Construction Pvt. Ltd. (2017) 81 taxman.com 292 (Guj) dated 14th March, 2016. The ld. counsel has also placed reliance on the decision of CIT vs. Kabul Charwala 380 ITR 183 (Del). On the other hand, ld. departmental representative has referred the judicial pronouncement in the case of CIT vs. S. Ajit Kr. (2018) 93 taxman.com 294 (SC) order dated 2nd May, 2018. The ld. departmental representative has also placed reliance on the decision of Hon’ble Supreme Court in the case of Commissioner of Customs (Import) Vs. Dalip Kumar

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and Company & others Civil Appeal No. 3327 of 2007 dated 30th July, 2018. The ld. departmental representative contended that in this case the Hon’ble Supreme court has mainly held as under:- “52. To sum up, we answer the reference holding as under- (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands over-ruled.”

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Bench). The Co-ordinate Bench vide Cortex Engineering Pvt. Ltd. vs. CIT supra has considered the judicial findings of the Hon’ble High Court of Gujarat in the case of Pr. CIT Vs. Saumya Construction and in the case of CIT Vs. Kabul Chawla of the Hon’ble High Court of Delhi. The relevant part of the decision of the Co-ordinate Bench is reproduced as under:- “With the assistance of ld. representatives, we have gone through the material carefully and judgment of Hon'ble jurisdictional High Court relied upon by the Id.counsel for the assessee. The Id.CIT(A) while deleting the additions also relied upon the judgment of Hon'ble jurisdictional High court in the case of Pr.CIT Vs. Saumya Construction (supra) and held that additions can be made under section 153A only in those cases where during the course of search incriminating documents or books of accounts have been found and seized and additions have to be based on such evidences and documents. He found that AO has not made any reference to any documents found during the course search, and therefore, additions held to be unsustainable. We find that issue of validity of addition made in an assessment framed under section 143(3) r.w.s. 153A along with decision of High Courts was considered by the ITAT in the case of Creelotex Engineering P. Ltd. Vs. CIT (supra). The relevant observations of the Tribunal are worth to note, which reads as under: "6. The question before us is, whether any incriminating material was found showing that the assessee has wrongly claimed exemption under section 10(38) of the Act during the course of search. The AO has not made reference to any documents or information which came to his possession during the course of search. This is the assessment year 2008-09. According to the AO, original return was filed under section 139 at NIL amount. Notice under section 143(2) appears to have not been issued upon the assessee on the original return. In this background, let us first take up proposition laid down by Hon'ble Courts on scope of section 153A of the Income Tax Act, 1961. The Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra) have examined scope of section 153A. After a detailed analysis Hon'ble Court has summarized legal proposition emerging out for application of section 153A. Such proposition reads 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(l) will have to be mandatorily issued to the 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".

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iv. Although Section 153 A 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 a/ready disclosed or made known in the course of original assessment." 7. It is also pertinent to note that in the case of CIT Vs. Kabul Chaw/a (supra) Hon'ble Court has observed that return for Asstt.Years 2002-03, 2005-06 and 2006-07 were accepted under section 143(1) of the Act. Thus, Hon'ble Court has considered this acceptance of return as an assessment made under section 143(1). In concluding paragraph, the Hon'ble Court has held that on the date of search, assessments for A.Ys. 2002-03, 2005-06 and 2006-07 already stood completed and no incriminating material was unearthed during the search, therefore, no addition should have been made to the income of the assessee. 8. It is pertinent to take note the finding recorded by the Hon'ble jurisdictional High Court in the case of Saumaya Construction Ltd. (supra) in para 18 and 19 of the judgments. It reads as under: "18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued^ under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, when the limit for framing the assessment as provided under section 153 was about to expire, the notice has been issued in the present case seeking to make the proposed addition of Rs.11,05,51,000/-on the basis of the material which was not found during the course of search, but on the basis of a statement of another person. In the opinion of this court, in a case like the present one, where an assessment has been framed earlier and no assessment or reassessment was pending on the date of initiation of search under section 132 or making of requisition under section 132A, while computing the total income of the assessee under section 153A of the Act, additions or disallowances can be made only on the basis of the incriminating material found during the search or requisition. In the present case, it is an admitted position that no incriminating material was found during the course of search, however, it is on the basis of

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some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of all the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as, the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, an assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is In complete agreement with the view adopted by the Rajasthan High Court in the case ofJai Steel (India), Jodhpur (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year.” 9. As observed earlier, a perusal of the assessment order would indicate that the Id.AO has not made reference to any seized material found during the course of search while considering this issue. Therefore, disallowance under section 10(38) of the Act is beyond the scope of section 153A and not sustainable. We allow this ground and delete impugned disallowance.” Considering the above facts and judicial findings of the High Courts and ITAT Ahmedabad Benches as cited above, we observed that assessing officer has initiated the assessment proceedings u/s. 153A of the act in the case of the assessee without demonstrating any incriminating documents unearthed during the course of search from the premises of the assessee. It is very clear from the fact of the case as cited above in this order that assessing officer has initiated proceedings u/s. 153A of the act on the basis of incriminating document found and seized from the premises of third party Shri R. V. Shah. In the light the above facts, we consider that assessment proceedings initiated u/s. 153A of the act was invalid and without jurisdiction, therefore, we quash the assessment made by the assessing

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officer u/s. 153A. Since we quash the assessment proceedings, therefore, it is not required to adjudicate the grounds of appeal on merit.

Assessment year 2007-08 8. The assessing officer has completed assessment u/s. 153A r.w.s. 143(3) of the act since the search action at the residence of the assessee was taken place on 3rd April, 2008. During the course of assessment proceedings while verifying the statement of bank of account maintained with the bank

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of Baroda, entries of different deposits were found on different dates from 4th April, 2006 to 2nd Jan, 2007 as mentioned at page no. 3 of assessment order amounting of Rs. 7,92,829/-. In spite of giving opportunities, the assessee could not substantiate the source of these cash credit, therefore, the same was added to the total income of the assessee as undisclosed income.

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Assessment year 2007-08 13. In respect of assessment year 2007-08, the assessing officer has levied penalty of Rs. 80,990/-

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assessee has failed to disclose the interest income arising in the account at Rs. 627/- and from Kisan Vikas Patra at Rs. 16,150/- along with the interest earned on RD account at Rs. 84,300/-. After considering the above facts, we consider that it is clearly established that assessee has furnished inaccurate particulars of income, therefore, we do not find any infirmity in the decision of ld. CIT(A) in sustaining the penalty of Rs. 80,690/-. Accordingly, the appeal of the assessee is dismissed on this ground.

Sd/- Sd/- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 26/03/2019 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद