DCIT, CENTRAL CIRCLE-2, SURAT, SURAT vs. DHANPRIYA PRINTS PVT. LTD.,, SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND DR. A. L. SAINI, HON'BLE ACCOUNTNAT MEMBER (Physical Court Hearing) Sl. ITA No. Asst. Name of Assessee Name of Respondent No. Year 1. 52/SRT/2022 2015-16 The DCIT, Central Circle-2, M/s. Dhanpriya Prints Pvt. Ltd., Surat. Plot No.13, Block No.320-21, Vill. Vankane, B/h. Garden Vareli Mill, Tal. Palsana, Surat-394237. PAN: AABCD9653L 2. 171/SRT/2021 2008-09 Betex India Ltd., The DCIT, Central Circle-2, 436, GIDC, Pandesara, Surat. Surat-394221. PAN: AABCB2413L 3. 174/SRT/2021 2008-09 The DCIT, Central Cricle-2, Betex India Ltd., Surat. 436, GIDC, Pandesara, Surat-394221. PAN: AABCB2413L

Sl. IT(SS)A No. Asst. Name of Assessee Name of Respondent No. Year 4. 69/SRT/2021 2009-10 Betex India Ltd., The DCIT, Central Circle-2, 436, GIDC, Pandesara, Surat. Surat-394221. PAN: AABCB2413L 5. 70/SRT/2021 2010-11 Betex India Ltd., The DCIT, Central Circle-2, 436, GIDC, Pandesara, Surat. Surat-394221. PAN: AABCB2413L 6. 75/SRT/2021 2009-10 The DCIT, Central Cricle-2, Betex India Ltd., Surat 436, GIDC, Pandesara, Surat-394221. PAN: AABCB2413L 7. 76/SRT/2021 2010-11 The DCIT, Central Cricle-2, Betex India Ltd., Surat 436, GIDC, Pandesara, Surat-394221. PAN: AABCB2413L

Date of Hearing: 14/12/2022 Date of Pronouncement: 23/12/2022 Assessee by: Shri Rasesh Shah, CA Shri Ashok B. Koli, CIT(DR) with Shri Vinod Kumar, Respondent by: Sr. DR

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. आदेश / O R D E R PER DR. A. L. SAINI, AM: This is the bunch of seven appeals, out of which three appeals are filed by the assessee and four appeals filed by the Revenue, pertaining to Assessment Years (AYs) 2008-09, 2009-10, 2010-11 and 2015-16, are directed against the separate orders passed by the ld. CIT(A), which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s. 147/153A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. “Concise and summarised grounds of appeal: 1. Common ground No.1: In these grounds, assessing officer made addition by estimating the profit at the rate of 20% on alleged unaccounted job receipts. On appeal, ld CIT(A) restricted addition at the rate of 5% on alleged unaccounted job receipts. The assessee is in appeal before us stating that 5% addition restricted by the ld CIT(A) should be deleted, whereas Revenue is in appeal before us stating that addition made by the assessing officer at the rate of 20% on alleged unaccounted job receipts should be upheld. The appeal-wise grounds raised by the assessee and revenue are as follows: (i). IT(SS)A No. 69/SRT/2021 (assessee’s appeal) for A.Y. 2009-10: Ground No.1: The Ld. CIT(A) erred in partly confirming the action of Assessing Officer by sustaining the addition of Rs.42,03,547/- out of total addition of Rs.1,68,14,187/- by estimation of profit at the rate of 5% of alleged unaccounted job receipts. (ii). In IT(SS)A No.75/SRT/2021 (Revenue’s appeal) for assessment year 2009-10: Ground Nos. 1 to 3: The Ld. CIT(A) has erred in restricting the addition of Rs.1,68,14,187/- made by the Assessing Officer, by estimating the profit at the rate of 20% on alleged unaccounted job receipts of Rs.8,40,70,795/- to Rs.42,03,547/- by holding that it is reasonable to consider at the rate of 5% as net profit on the alleged unaccounted job receipts. (iii). IT(SS)A No.70/SRT/2021- Assessee Appeal- for AY.2010-11: Ground No.1: The ld. CIT(A) erred in partly confirming the action of Assessing Officer by sustaining the addition of Rs.39,21,015/- out of total addition of Rs.1,57,64,796/- by estimation of profit at the rate of 5% of alleged unaccounted job receipts. (iv). IT(SS)A No.76/SRT/2021-Revenue Appeal- for AY.2010-11: Ground Nos. 2, 3 and 4: The ld. CIT(A) has erred in restricting the addition of Rs.1,57,64,796/- at the rate of 20% on alleged unaccounted job receipts of Rs.7,84,20,306/- to Rs.39,21,015/- (5% of Rs.7,88,23,982/-) by holding that it is reasonable. (v). In ITA No. 52/SRT/2022-Revenue Appeal- for AY.2015-16: Ground Nos. 1 to 3: The Ld. CIT(A) has erred in restricting the addition of Rs.5,83,000/- made by the Assessing Officer by estimating the profit @ 20% on alleged unaccounted job receipts of Rs.29,15,120/- to Rs.1,45,751/- by holding that it is reasonable to consider 5% as net profit on the net unaccounted job receipts as income for the year under consideration. 2. Common Ground No.2: In these common grounds, the Revenue has raised the issue that Ld. CIT(A) has erred in entertaining the rectification application under section 154 of the Act filed by the assessee and allowing the claim of the assessee. Appeal-wise grounds raised by the Revenue are as follows:

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. (i) In IT(SS)A No.75/SRT/2021 (Revenue’s appeal) for assessment year 2009-10: Ground Nos.4 and 5: The Ld. CIT(A) has erred in entertaining the rectification application under section 154 of the Act filed by the assessee and allowing the claim of set off of the income of Rs.17,00,000/- claimed to have shown in the return of income filed in response to notice under section 153A of the Act, without considering the fact that such claim was not made by the assessee either before the Assessing Officer or during the course of original appellate proceedings before him, by way of raising any ground of appeal or otherwise and that the Assessing Officer had made addition over and above such income. (ii).IT(SS)A No.76/SRT/2021-Revenue Appeal- for AY.2010-11: Ground Nos. 5 & 6: The Ld. CIT(A) erred in entertaining the rectification application under section 154 of the Act filed by assessee and allowing the claim of set -off of the income of Rs.16,00,000/-. 3. In ITA No. 171/SRT/2021 for AY.2008-09 (assessee’s appeal): Ground No.1: On the facts and circumstances of the case, as well as law on the subject, the Ld. CIT(A) has erred in confirming the action of Assessing Officer in reopening assessment under section 147 by issuing notice under section 148 of the Income Tax Act, 1961. 4. In ITA No.174/SRT/2021 for AY.2008-09 (Revenue’s appeal): Ground No.1: On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.2,20,00,000/- made on account of unexplained cash credit under section 68 of the Act. 5.In IT(SS)A No.75/SRT/2021 (Revenue’s appeal) for assessment year 2009-10: Ground No.6 and 7: The ld. CIT(A) erred in deleting the protective addition of Rs.5,75,09,920/- made by the Assessing Officer on account of unexplained cash credit under section 68 of the Act in a summary manner by observing that the Assessing Officer has made substantive addition in AY.2010-11 and the issue has been dealt in while deciding the appeal for the said year, wherein the CIT(A), has deleted such addition made on substantive basis on technical ground. 6. IT(SS)A No.76/SRT/2021-Revenue Appeal- for AY.2010-11: Ground No. 1: The ld. CIT(A) has erred in allowing to net off the discount amount of Rs.4,03,676/- from total unaccounted job work receipts worked out at Rs.7,88,23,982/- by the Assessing Officer, especially when there was no such claim made either during the assessment proceedings or by way of raising any grounds of appeal during the course of appellate proceedings. 7. IT(SS)A No.76/SRT/2021-Revenue Appeal- for AY.2010-11: Ground No.7 to Ground No.11: The Ld. CIT(A) erred in deleting the addition of Rs.7,95,09,920/- made by the Assessing Officer on account of unexplained credit under section 68 of the Act.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 8. In ITA No. 52/SRT/2022-Revenue Appeal- for AY.2015-16: Ground Nos. 4 to 6: The Ld. CIT(A) has erred in deleting the addition of Rs.2,00,00,000/- made by the Assessing Officer on account of unexplained cash credit under section 68 of the Act.” 5. Now, we shall take, one by one, these concise and summarize grounds of appeals.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. Ground Nos. 1 to 3: The Ld. CIT(A) has erred in restricting the addition of Rs.5,83,000/- made by the Assessing Officer by estimating the profit @ 20% on alleged unaccounted job receipts of Rs.29,15,120/- to Rs.1,45,751/- by holding that it is reasonable to consider 5% as net profit on the net unaccounted job receipts as income for the year under consideration.” 7. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Learned DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, and stated that addition should be sustained at the rate of 20% of unaccounted receipts. Whereas, ld Counsel defended the order passed by the ld CIT(A). We note that the above concise and summarize ground no.1 is covered by the judgment of Co-ordinate Bench, in assessee’s own case in the case of ITA Nos.71/SRT/2021 to 74/SRT/2021 and IT(SS)A Nos. 77/SRT/2021 to 80/SRT/2021 for AYs. 2011-12 to 2014-15, wherein the Co-ordinate Bench held as follows: “11. We have heard the submissions of both the parties on merit. The ld. CIT- DR for the Revenue submits that during the course of search action conducted on 19.02.2015 in the group cases of Sumeet Industries Ltd. of Surat and huge incriminating evidence related to unaccounted job work receipt were found during said search action and statement of Dinesh Agarwal, accountant and Shri Rajkumar Somani, Director of Sumeet Industries Ltd. were recorded on oath under section 132. In the statement, the director of assessee admitted un- accounted job receipts, which were outside books of account and Department has proved with credible evidence that assessee has maintained two sets of books of account of job work and accounted job work separately. The assessee explained about the data of Puirchi.exe software by giving of colour of internal processing were to give mislead in fact to cover their act of evasion of tax by leading unaccounted job work. During the course of search action, it was clearly established that the assessee has created out unaccounted job work outside assessees book. From the data retrieved from the computer that assessee received job work receipt of Rs.15.04 crores, was found, which were not accounted in the books of assessee for the year under consideration. The Assessing Officer after considering the entire material, past history of gross profit of assessee-company and its all group cases has reasonably estimated gross profit of 20% on rational and judicial manner in a detailed discussion. The Ld. CIT(A) restricted such addition to the extent of 5% in his order dated 26.07.2021. However, Ld. CIT(A) rectified his order by filing application of assessee and granted set off of credit of Rs.31 lakhs and thereby reduced substantial addition to the extent of Rs.15,04,36,907/-. The Ld. CIT-DR for the revenue prayed to reverse the order of Ld. CIT(A) dated 26.07.2021 as well as rectification order dated. 5.08.2021.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 12. On the other hand, Ld. AR for the assessee submits that Assessing Officer made addition @ 20% of alleged supressed job work receipt on comparison of books of account as well as data retrieved from Purchi.exe software of assessees computers. The Assessing Officer failed to appreciate the real nature of assessees business. The Assessing Officer further failed to appreciate the re-processing work undertaken by assessee. The assessee explained that data extracted from Purchi.exe software was not real and entire stock tallied with the books of account and there was no unaccounted stock or work-in-progress found during the course of search action. The Ld. AR for the assessee submits that entire addition was liable to be deleted. 13. In alternative submission, Ld. AR for the assessee submits that average net profit in previous and subsequent year, the assessee was only 1.82% and the addition, if any, has to be restricted only to such gross profit and not the substantial part of alleged transaction. 14. In second alternative submission, the Ld. AR for the assessee submits that in assessees group cases in Sitaram Prints Private Limited, which was also covered in the same search action, the Assessing Officer on a similar transaction made addition @ 20% of alleged unaccounted job work receipt, however, on appeal before Ld. CIT(A) the similar addition was restricted to 5%. And on further appeal before Tribunal in IT(SS)A No(s). 67-68/SRT/2021 and ITA No.157/SRT/2021 in the case of Sitaram Prints Private Limited Vs. DCIT, dated 17.08.2022, the action of CIT(A) in those appeals was upheld. So the issue raised in all the appeals / cross appeals are covered. 15. In rejoinder Ld. CIT-DR for the Revenue submits that order of Tribunal in the case of Sitaram Prints Private Limited (supra) is not helpful in the present set of appeals filed by assessee. As in those cases, the Revenue has not filed appeal before Tribunal due to low tax effect. And the order of Ld. CIT(A) was upheld for the reasons that Hon'ble Tribunal has no power to enhance such addition. However, in case of present assessee, the revenue has filed its appeal for seeking to restore the additions made by the assessing officer. 16. We have considered the rival submission of both the parties and have gone through the order of lower authorities carefully. We have also deliberated on various case law relied by lower authorities. We have also considered the entire material filed before us. We find that in the search action was carried out in the group cases of Sumeet Industries Limited Surat on 19.02.2015 being a part of same group, the assessee was also covered. We find that on similar set of fact, and on similar evidence, the Assessing Officer made addition in case of Sitaram Prints Private Limited (supra) in assessees group case, covered in same search action, on similar unaccounted job work the assessing officer made addition @ 20% on similar unaccounted job work receipt. On appeal before Ld. CIT(A), who restricted the addition to the extent of 5% of similar unaccounted job work receipt. The combination of this bench in the case of Sitaram Prints Private Limited (supra) has passed the following order: “9. We have considered the rival submissions of both the parties and have gone through the orders of the authorities below carefully. We have also deliberated on various case laws referred and relied by the ld. CIT(A) in

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. his order. We find that the Assessing Officer made addition of 20% on unaccounted job work charges by taking a view that the assessee has not shown actual job work done for the parties. If there was no processing work were carried out for these parties, how such work is reflected in the data recovered from computer back up as reprocessing work. The Assessing Officer was also of the view that on comparison of the parties which are common in the books and data recovered from the computer back up, the job work done is very higher than job work reflected in the books of account. Such summary was prepared in the assessment order. The assessee claimed that reprocessing is internal process of organization and data maintained in Purchi.exe software is only for organization the how can reprocessing work be done after the one month of dispatch of finished goods. Such action shows that the claim of reprocessing is not genuine. On the basis of such discrepancies, the Assessing Officer was of the view that there are two different set of data related to job works maintained in the computer and data maintained in Purchi.exe software is not accounted in the books of account. The Assessing officer disallowed 20% of receipt of unaccounted job work by treating as 20% profit of such unaccounted job work. 10. As noted above, before the ld. CIT(A), the assessee has filed detailed written submission. The ld. CIT(A) after considering the submission of assessee noted that it is clear that the data found stored in file of Purchi.exe software does not match with the regular books of account, thus the Assessing officer has proved beyond doubt with detailed discussion in the assessment order that the data recorded in this file remains unaccounted. The documentary evidences in the form of invoices and job bills found, there were several differences between these documents, which the Assessing Officer has narrated in detail in the assessment order. The entries have been made from about 50 parties by the DDIT (Inv.) to verify the contention of assessee about reprocessing work from whom enquiries were made, but no one had stated that they have given any reprocessing work to the assessee. All these details were analysed by the Assessing Officer and proved beyond doubt that the assessee was indulged in activities of doing job work which remained unaccounted. Thus, the contention that no unaccounted job work was done by assessee was not accepted and the corresponding submission of assessee was rejected. 11. We find that the ld. CIT(A) on the alternative contention of addition for considering gross profit of assessee for last preceding years as well as electricity consumption and other expenditure was of the view that the Assessing Officer was not correct in making addition by taking gross profit and these direct expenditure. The contention of assessee was that only profit element should be taxed and not the addition @ 20% of job works of the whole receipt. The assessee claimed that 20% is too high and is not real. The assessee submitted gross profit and net profit for six assessment years which was at 1.82% and the contention of assessee that it should not be more than average net profit of 1.82%. The ld. CIT(A) after considering the submission of assessee and by following the decision

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. of Hon’ble Jurisdictional High Court in the case of CIT Vs President Industries and CIT Vs Samir Synthetics Mill (supra) and after compiling the turnover, net profit and gross profit ratio from A.Y. 2010-11 to 2015- 16 held that the average net profit in all the years is 1.82%. The ld.CIT(A), accordingly restricted the addition of suppressed job work to the extent of 5% to the total turnover of Rs. 2.589 crores. 12. We independently examined the contention of both the parties and find that the Assessing Officer has given very detailed reasoning while making addition of 20% of unaccounted job charges. We further find that the ld. CIT(A) restricted the addition to the extent of 5% to the extent that only profit element embedded in such unaccounted receipt. It is settled law under the income tax proceeding that only income component is to be taxed and not the substantial part of the transaction. Considering the fact that the ld CIT(A) has already granted substantial relief to the assessee and directed to tax only to the extent of 5% of Rs.2.589 Crore. In our view the ld CIT(A) has already granted substantial relief to the assessee, which we affirm. Hence, we do not find any merit in further reducing the addition which has already been reduced substantially by the ld. CIT(A). Therefore, we do not find any justifiable reason to given further relief to the assessee. 13. In the result, this appeal of is dismissed.” 17. In the present set of appeals, Ld. CIT-DR for the Revenue specifically argued that in case of Sitaram Prints Private Limited (supra) there was no cross- appeal filed by Revenue for the want of tax effect, therefore the Tribunal was unable to enhance the ratio of disallowance restricted by Ld. CIT(A). We find that the Ld. CIT(A) while restricting the addition to the extent of 5% of alleged unaccounted job work receipt followed by the decision of Hon'ble jurisdictional High Court in the case of President Industries (supra), wherein it was held that “on the issue of suppression of said consideration only the addition to the extent of profit element may be made”. We are also of the view that wherein there is no fool proof of evidence of unaccounted sales or independent material to substantiate such allegation, only profit element to avoid the possibility of revenue leakage is sufficient to meet the ends of justice and not the substantial part of the disputed transaction. Therefore, we are not inclined to enhance the disallowance of alleged unaccounted job work receipt by assessee. Hence, ground No.1 to 4 raised by Revenue are dismissed. 18. Considering the fact that we have upheld the action of ld CIT(A) hence, sole ground of appeal raised by assessee in its appeal is also dismissed. In the result, assessees appeal is dismissed.”

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. therefore appeal filed by the assessee as well as appeal filed by the Revenue, both are dismissed. 9. In the result, appeal filed by the assessee in ITA No.69/SRT/2021 and IT(SS)A No.70/SRT/2021, are dismissed. The Revenue’s appeal in IT(SS)A No. 75/SRT/2021, IT(SS)A No.76/SRT/2021 and ITA No.52/SRT/2022 are also dismissed. 10. The common ground no.2, raised by the Revenue, is reproduced below for ready reference and adjudication. “2. Common Ground No.2: In these common grounds, the Revenue has raised the issue that Ld. CIT(A) has erred in entertaining the rectification application under section 154 of the Act filed by the assessee and allowing the claim of the assessee. Appeal-wise grounds raised by the Revenue are as follows: (i) In IT(SS)A No.75/SRT/2021 (Revenue’s appeal) for assessment year 2009-10: Ground Nos.4 and 5: The Ld. CIT(A) has erred in entertaining the rectification application under section 154 of the Act filed by the assessee and allowing the claim of set off of the income of Rs.17,00,000/- claimed to have shown in the return of income filed in response to notice under section 153A of the Act, without considering the fact that such claim was not made by the assessee either before the Assessing Officer or during the course of original appellate proceedings before him, by way of raising any ground of appeal or otherwise and that the Assessing Officer had made addition over and above such income. (ii).IT(SS)A No.76/SRT/2021-Revenue Appeal- for AY.2010-11: Ground Nos. 5 & 6: The Ld. CIT(A) erred in entertaining the rectification application under section 154 of the Act filed by assessee and allowing the claim of set -off of the income of Rs.16,00,000/-.” 11. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Learned DR for the Revenue has submitted that there is no mistake apparent from record therefore Ld. CIT(A) erred in entertaining the rectification application under section 154 of the Act. Whereas, ld Counsel defended the order passed by the ld CIT(A). We note that common ground no.2, raised by Revenue is squarely covered by the judgment of the Co-ordinate Bench in ITA Nos.71/SRT/2021 to 74/SRT/2021 and IT(SS)A

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. Nos. 77/SRT/2021 to 80/SRT/2021 for AYs. 2011-12 to 2014-15, wherein the Co- ordinate Bench held as follows: 21. We have considered the rival submission of both the parties and have gone through the order of ld CIT(A) carefully. We find that there is no dispute that assessee while filing return of income under section 139(1) on 27.09.2011 declared income of Rs.1.76 crores. However, in response to notice under section 153A the assessee offered / declared income at Rs.2.07 crores. Thus, the assessee offered additional income of Rs. 31 lacks and case of assessee is that there was voluntary disclosure of undisclosed business income and was eligible for telescoping of such income. We find that only issue in the assessment order was with regard to unaccounted job work receipt. The addition was made on account of estimated profit of unaccounted job work receipt. Initially, Assessing Officer made addition @ 20% of such impugned unaccounted job charges. On appeal, which was restricted @ 5% of the total disputed unaccounted job work receipt by Ld. CIT(A). We find that Ld. CIT(A) on filing application under section 154 of the Act by assessee on account of additional business income, granted credit of such additional income. The ld CIT(A) thus, granted set of income, which was voluntarily offered by the assessee in response to notice under section 153A, to which the assessee is legally eligible. Thus, we do find any reasons for interference in the order passed by Ld. CIT(A). Hence, ground No.5 & 6 of Revenue’s appeal is dismissed. 22. In the Revenue’s appeal is dismissed. 12. Since, the issue is squarely covered against the Revenue by the judgment of the Co-ordinate Bench in assessee’s own case (supra) and there is no change in facts and law. The ld. CIT(A) allowed the rectification application of assessee on factual issues, which were to be corrected by him. In these appeals of the revenue, similar factual apparent mistake are involved. Hence, ld. CIT(A) has rectified mistake apparent from record. Therefore respectfully following the binding precedent of the Co-ordinate Bench (supra), we dismiss the common ground no.2 raised by Revenue. 13. In the result, ground nos. 4 & 5 in IT(SS)A No.75/SRT/2021 and Ground No.5 & 6 in IT(SS)A No. 76/SRT/2021, are dismissed.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. reopening assessment under section 147 by issuing notice under section 148 of the Income Tax Act, 1961.” 15. Brief facts qua the issue are that assessee -company filed its return of income declaring total income of Rs.Nil on 30.09.2008. The assessment under section 143(3) was finalized on 30.06.2010 determining total income at Rs.Nil. The assessee company is engaged in the business of dyeing and printing of synthetic cloth on job work basis. The assessee`s case was reopened and notice under section 148 of the Act was issued on 31.03.2015 and served upon the assessee on 31.03.2015. The assessee- company filed return of income, in response to notice under section 148 on 16.07.2015. Subsequently, notice under section 143(2) of the Act dated 25.02.2016 was also issued and served upon the assessee. A questionnaire under section 142(1) of the IT Act, 1961 dated 25.02.2016 was issued to the assessee to furnish details in respect of share application money of Rs.2,20,00,000/- received in AY.2008-09. The assessee company was requested to furnish the details before assessing officer. On verification of submission dated 17.03.2016 and 21.03.2016 furnished by the assessee, it was noticed by AO that M/s Rangila Suppliers Pvt. Ltd., a Kolkata based Company has deposited share application money amounting to Rs.2,20,00,000/- in the accounts of M/s Betex India Ltd, the assessee. Relevant part of bank statement of M/s Rangila Suppliers Pvt. Ltd. is as follows:

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 18. On verification of return of income of M/s Rangilia Suppliers Pvt. Ltd., it was noticed by AO that the company has shown gross total income of Rs.412/- only. On physical verification, M/s Rangila Suppliers Pvt. Ltd. was found not operating from its registered office at 515, G T Road, 3rd Floor, Near Sandhya Bazar, Howrah-711101. Further, as evident from the bank statement of M/s Rangila Suppliers Pvt. Ltd., the company has received funds from M/s Ramdhani Agencies, M/s Muskaan Vyapar Pvt. Ltd., etc. and the same is transferred to M/s Betex India Ltd on either the same day or the next day. On physical verification, these concerns were found not operating from the registered addresses. To corroborate the fact that these Kolkata based companies from whom M/s Rangila Suppliers Pvt. Ltd., has received funds are not doing any real business, scanned statement of Shri Beni Prasad Lahoti, an entry provider is relevant, wherein he has confirmed that M/s Ramdhani Agencies, M/s. Banphool Sale Pvt. Ltd., M/s. Muskaan Vyapar Pvt. Ltd. are fully managed and operated by him. The assessing officer noted that assessee has failed to prove the identity, creditworthiness and genuineness of the transactions, therefore, the total amount of Rs.2,20,00,000/- received in the guise of share application money during AY.2008-09 from M/s. Rangila Suppliers Pvt. Ltd., was treated as unexplained cash credit under section 68 of the Act, 1961 and added the total income of the assessee.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

6.1 The assessee stated that the facts mentioned in the reasons recorded by the Assessing Officer are factually incorrect as it is not mandatory as per the Companies Act that interest has to be paid on fund received. It is also factually incorrect that the assessee's company having more than 50% share of Rangila Fabrics (P) Ltd. Moreover, the Assessing Officer did not mention anything in the reasons recorded that there is failure on the part of assessee to disclose fully & true facts before the Assessing Officer. With these contentions, the assessee stated that the proceedings initiated in the case of the assessee by issuing notice u/s. 148 of the Act is void ab initio, hence may be quashed. The assessee cited several case laws in support of the contentions made above. 6.2 The facts of the case have been considered carefully. As stated in the reason recorded by the Assessing Officer that search has been taken place at the premises of the assessee on 19.02.2015 and during the search, incriminating documents were seized from the factory premises of the assessee. Therefore, while recording reasons the Assessing Officer has information which was not available with him while passing the orders previously. This is fresh information available

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. with the Assessing Officer. It is not mandatory that the Assessing Officer must draw final conclusion in the reason recorded itself that this is the income of assessee. There is difference between initiating proceedings by issuing notice u/s. 148 of the Act and concluding the assessment proceedings u/s.147 of the Act after conducting necessary enquiries and giving opportunity of being heard to the assessee. Therefore, the proceedings initiated by the Assessing Officer are as per the provisions of the Act and hence, this ground of appeal is dismissed.” 20. Aggrieved by the order of ld. CIT(A), the assessee is in appeal before us.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. (b) The reopening is beyond four years and according to the assessee the basic condition for reopening is not fulfilled as according to it full and the disclosure of the relevant facts was made to the department. 24. We note that information was not available at the time of passing the original assessment order, the assessing officer received fresh information that income to the extent of Rs.2.20 crores have escaped assessment. From the reasons recorded, as reproduced above; the following facts and sequence of events are observed: (a) Credible information was received by the AO from the Investigation Wing, Surat, regarding search and seizure action carried out in the case of the assessee. (b) The AO has noted that the search has revealed that the assessee - company has received share application money of Rs. 2.20 crores from Rangila Suppliers Pvt. Limited, a loss making company with no fixed assets. (c) This information was not available at the time of passing the original assessment order, hence, entire share capital were bogus. (d) The assessing officer had verified the information with the record available in his office and duly recorded the reasons to believe. 25. Having gone through the entire gamut of facts and circumstances, we are of considered opinion that not only there existed new information with the AO from the credible sources, but also that he has applied his mind and recorded the reasons. The Hon'ble Supreme Court in the case of Phul Chand Bajrang Lal and another vs. ITO 203 ITR 456, was considering the question of reassessment beyond the period of four years in the case of an assessee firm; and had held that in case of acquiring fresh information specific in nature and reliable, relating to the concluded assessment, which went to falsify the statement made by the assessee at the time of original assessment and, therefore, he would be permitted under the law to draw fresh inference from such facts and material. The Court also went to an extent of saying that there are two distinct and different situations where the

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. transaction itself, on the basis of subsequent information is found to be bogus transaction and in such event, mere disclosure of the transaction cannot be said to be true and full disclosure and the Income-tax Officer would have jurisdiction to reopen the concluded assessment. It would be apt to quote some observations of the Apex Court in the case of Phul Chand Bajrang Lal (supra), which read as under: "...one has to look to the purpose and intent of the provisions. One of the purposes of Section 147 appears to be to ensure that a party cannot get away by willfully making a false or untrue statement at the time of original assessment and when that falsity comes to notice to turn around and say 'you accepted my lie, now your hands are tied and you can do nothing'. It would, be travesty of justice to allow the assessee that latitude." 26. The Hon'ble Gujarat High Court in the case of Dishman Pharmaceuticals and Chemicals Ltd. vs. DCIT (OSD), Ahmedabad (2012) 346 ITR 228 (Guj) has summed up the requirements of the law, in such circumstances and has held that: “There is no set format in which such reasons must be recorded. It is not the language but the contents of such recorded reasons which assumes importance. In other words, a mere statement that the Assessing Officer had reason to believe that certain income has escaped assessment and such escapement of income was on account of non-filing of the return by the assessee or failure on his part to disclose fully and truly all material facts necessary for assessment would not be conclusive. Nor, absence of any such statement would be fatal if on the basis of reasons recorded, it can be culled out that there were sufficient grounds for the Assessing Officer to hold such beliefs." 27. A three Judges bench of Hon'ble Gujarat High Court in the case of A.L.A. Firm v. CIT, 189 (1991) ITR 285, after an elaborate discussion of the subject opined that the jurisdiction of the Income Tax Officer to reassess income arises if he has in consequence of specific and relevant information comning into his possession subsequent to the previous concluded assessment, reason to believe, that income chargeable to tax and had escaped assessment. It was held that even if the information be such that it could have been obtained by the I.T.O. during the previous assessment proceedings by conducting an investigation or an enquiry but was not in fact so obtained, it would not affect the jurisdiction of the Income Tax Officer to initiate reassessment proceedings, if the twin conditions prescribed

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. under Section 147 of the Act are satisfied. Therefore, considering these facts and circumstances we dismiss the appeal of the assessee.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. further stated that the Assessing Officer has himself proved in the assessment order by producing bank statement of the investor company that the investor company received funds on transfer or by clearing from other entities and there is no deposit of cash in the investor's bank account. The Ld Counsel also stated that M/s. Rangila Fabrics Pvt. Ltd. company is found active on MCA site as on 31st March, 2020. The investor company has changed its address from Kolkata to Surat and it is a sister concern of the assessee company. Therefore, there is no benefit to take accommodation entry from own sister concern. The ld Counsel also stated that Assessing Officer's finding that it is jamakharchi company is factually incorrect as investor company is having turnover Rs.1,52,04,468/- in assessment year 2016-17. The assessee further stated that a search action u/s 132 of the Act was conducted at its premises and no evidence was found in any form related to receipts of accommodation entries from M/s Rangila Fabrics Pvt. Ltd. The assessee also stated that the Rangila Fabrics Pvt. Ltd. is still shareholders of 12200 as on 31.03.2020 which proves that share allotted to M/s. Rangila Fabrics Pvt. Ltd. has not been acquired by the other companies or directors or relatives at lower, value. The assessee further argued that in the statement of Shri Beni Prasad Lahoti, he did not mention the name of M/s. Rangila Suppliers Pvt. Ltd. and therefore the statement of Shri Beni Prasad Lahoti has no relevance in the case of the assessee. The assessee stated that the transaction is through regular banking channel and it has submitted all the necessary documents to discharge its onus. The ld Counsel also relied on the judgment of Hon`ble jurisdictional High Court of Gujarat in the case of Ranchhod Jivabhai Nakhava, 21 taxmann.com 159 and stated that ld CIT(A) has rightly deleted the addition therefore order passed by ld CIT(A) may be upheld.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. be sustained. The order of the Ld. CIT(A) is not based on logical conclusion therefore his order should not be confirmed. The Ld. DR argued that mere documentary evidences were not sufficient to discharge the genuineness of the transactions and that the personal appearance of Directors of share applicants was indeed a pre-requisite to ascertain whether the three ingredients prescribed in Section 68 stood satisfied. The Ld. DR thereafter took us through the relevant documents furnished by the assessee company in their Paper book. With regard to the identity of the share subscribers, Ld DR submitted that all the share applicants were paper companies therefore, addition made by assessing officer should be sustained.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. going through the facts of the assessee`s case noted that Assessing Officer made additions of Rs.2,20,00,000/- as received by the assessee from M/s Rangila Suppliers Pvt., Ltd. (Rangila Fabrics Pvt. Ltd.) stating that the investor company has received amount by clearing or transfer immediately before issuing cheque to the assessee. However, this fact itself proves that there was no cash deposited in the bank account of the investor company and source of source is proved by the Assessing Officer himself. During the course of assessment proceedings, the assessee has filed PAN and copy of ITR of the investor company/ copy of confirmation from the investor company and bank statement of the investor company which clearly prove that the assessee has discharged its onus of identity of the creditor, creditworthiness of the creditor and genuineness of the transactions. The genuineness of the transactions further proved by the fact that share issued in F.Y.2009-10 are still owned by M/s Rangila Fabrics Pvt. Ltd. in March, 2020. The identity is further proved by the fact that M/s Rangila Fabrics Pvt. Ltd is found active compliant as on 31s March, 2020 on the MCA site. It is also a fact that the assessee company was searched u/s 132A of the Act and on that basis only the assessee`s case was re-opened. However, during the course of search, no evidences was found anywhere which remotely suggest that the assessee has paid amount in cash to anyone to get cheque of Rs.2,20 Crore from M/s. Rarigila Fabrics Pvt. Ltd. It is also a fact that Shri Beni Prasad Lahoti whose statement has been reproduced in the assessment order by the Assessing Officer did not name M/s Rangila Fabrics Pvt. Ltd. in his statement. Keeping in view these facts, it is established beyond doubt that the assessee has discharged its onus of proving identity of investor, creditworthiness of investor and genuineness of the transactions. The ld CIT(A) also relied on the judgments of jurisdictional High Court of Gujarat in the case of CIT vs. Ranchhod Jivabhai Nakhava [2012] 21 taxmann.com 1591 and DCIT Vs Rohini Builders. The ld CIT(A) also relied on the case of Lovely Exports (P) Ltd. [216 CTR 195]. 34. We have heard both the parties and perused the material available on record, we note that according to section 68 of the Income Tax Act, where any

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not satisfactory in the opinion of the assessing officer, the sum so credited may be charged to income tax as the income of the assessee of that assessment year. The assessing officer may consider such sum as cash credit due to lack of sufficient explanation. It is well known that provisions of section 68 have been introduced into the taxing enactments step by step in order to plug loopholes. Even long prior to the introduction of section 68 of the Act, in the statute book, courts had held that where any amounts were found credited in the books of the assessee in the previous year and the assessee offered no explanation about the nature and source thereof or the explanation offered was, in the opinion of the assessing officer, is not satisfactory, the sums so credited could be charged to income-tax as income of the assessee of the relevant assessment year. We note that with effect from assessment year 2013-14, section 68 of the Income Tax Act has been amended to provide that if a closely held company fails to explain the source of share capital, share premium or share application money received by it to the satisfaction of the assessing officer, the same shall be deemed to be the income of the company under section 68 of the Act. We note that the amended provisions of section 68, is not applicable to the assessee company under consideration, as the assessee`s, assessment year is 2008-09. The Hon`ble Bombay High Court, in the case of Gagandeep Infrastructure 80 Taxmann.Com 272 (Bom.), held that amendment to section 68 is prospective and applicable only from assessment year 2013-14. 35. It is noted that the all the above requisitioned documents were furnished before the AO which substantiated the transaction between the assessee company and the share applicants. It is therefore not a case where the documents sought from the applicants to examine the transaction were not available before the AO. As regards the issue of non-appearance of the share applicants, we note that in such a case the Hon'ble Apex Court in the case of Orissa Corpn. (P) Ltd. (supra) 159 ITR 78 and the Hon'ble Gujarat High Court, in the case of Dy. CIT v. Rohini

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. Builders [2002] 256 ITR 360 / [2003] 127 Taxman 523, has held that onus of the assessee (in whose books of account credit appears) stands fully discharged if the identity of the creditor is established and actual receipt of money from such creditor is proved. In case, the Assessing Officer is dissatisfied about the source of cash deposited in the bank accounts of the creditors, the proper course would be to assess such credit in the hands of the creditor (after making due enquiries from such creditor). In arriving at this conclusion, the Hon'ble Court has further stressed the presence of word "may" in section 68. Relevant observations at pages 369 and 370 of this report are reproduced hereunder:- "Merely because summons issued to some of the creditors could not be served or they failed to attend before the Assessing Officer, cannot be a ground to treat the loans taken by the assessee from those creditors as non- genuine in view of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw and adverse inference against the assessee. in the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by' treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69.” 36. In the case of CIT Vs Jalan Hard Coke Ltd (95 taxmann.com 330), the Hon’ble Rajasthan High Court noted that the assessee had furnished the details of the share applicants but expressed its inability to produce the share applicants before the AO for examination. The Hon’ble High Court held that mere non-appearance of share applicants could not be reason enough to assess the share application monies received by way of unexplained cash credit. The SLP filed by the Revenue against this judgment has been dismissed by the Hon’ble Supreme Court. The relevant extracts of the judgment are as follows:

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. “6.2 Taking into consideration the aforesaid decision we are of the considered opinion that company cannot be assessed for the income tax to find out the person who has applied as shareholder. The view of taken by the Tribunal is just and proper, therefore, the issue is answered in favour of the assessee and against the department.” 37. Further, in the case of CIT v. Orchid Industries (P.) Ltd. [2017] 88 taxmann.com 502 / 397 ITR 136, the Hon’ble Bombay High Court on the issue of non-appearance of share applicants had held as under: "[5] The Assessing Officer added Rs.95 lakhs as income under Section 68 of the Income Tax Act only on the ground that the parties to whom the share certificates were issued and who had paid the share money had not appeared before the Assessing Officer and the summons could not be served on the addresses given as they were not traced and in respect of some of the parties who had appeared, it was observed that just before issuance of cheques, the amount was deposited in their account. [6] The Tribunal has considered that the Assessee has produced on record the documents to establish the genuineness of the party such as PAN of all the creditors along with the confirmation, their bank statements showing payment of share application money. It was also observed by the Tribunal that the Assessee has also produced the entire record regarding issuance of shares i.e. allotment of shares to these parties, their share application forms, allotment letters and share certificates, so also the books of account. The balance sheet and profit and loss account of these persons discloses that these persons had sufficient funds in their accounts for investing in the shares of the Assessee. In view of these voluminous documentary evidence, only because those persons had not appeared before the Assessing Officer would not negate the case of the Assessee. The judgment in case of Gagandeep Infrastructure (P.) Ltd. (supra) would be applicable in the facts and circumstances of the present case" 38. To conclude, section 68 of the Act provides that if any sum found credited in the year in respect of which the assessee fails to explain the nature and source shall be assessed as its undisclosed income. In the facts of the present case, both the nature and source of the share application received was fully explained by the assessee. The assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the share applicants. The PAN details, bank account statements, audited financial statements and Income Tax acknowledgments were placed on AO's record. Without doing so, the addition made by the AO is based on conjectures and surmises cannot be justified. In the

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. facts and circumstances of the case as discussed above, no addition was warranted under Section 68 of the Act. Therefore, we confirm the findings of ld CIT(A) and dismiss the appeal of the Revenue.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. on substantive basis, when the assessee has allotted non-convertible preference shares to Survika Vinimay Pvt. Ltd. Whereas the amount was first credited in the books of account of the assessee in F.Y.2008-09, therefore to protect the interest of revenue addition of Rs.5,75,09,920/- under section 68 of the I.T Act was made in AY.2009-10 on protective basis. 42. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has partly allowed the appeal of the assessee, observing as follows: “8. Next ground of appeal is against the additions of Rs.5,75,09,920/- made by the Assessing Officer on Protective basis considering share application money and premium received by the assessee from M/s Survika Vinimay Pvt Ltd as non- genuine. The Assessing Officer made substantive additions in the hands of the assessee in AY.2010-11. As this issued has been considered while deciding the appeals of the assessee for 2010-11 vide order dated 26.07.2021. The protective additions made by the Assessing Officer in this year are deleted. This ground of appeal is allowed.” 43. Aggrieved by the order of ld. CIT(A), the Revenue is in appeal before the us.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. Ground No. 1: The ld. CIT(A) has erred in allowing to net off the discount amount of Rs.4,03,676/- from total unaccounted job work receipts worked out at Rs.7,88,23,982/- by the Assessing Officer, especially when there was no such claim made either during the assessment proceedings or by way of raising any grounds of appeal during the course of appellate proceedings.” 47. We have heard both the parties. We note that ld CIT(A), vide his order dated 26.07.2021, vide para No.7.8 and page No. 29 of his order, has corrected only typographical error in respect of discount of Rs.4,03,676/-. Thus, ld CIT(A) has taken correct job receipts to the tune of Rs.7,84,20,306/- (Rs.7,88,23,982 – Rs.4,03,676). Hence, there is no error committed by ld CIT(A) in correcting typographical error, therefore we dismiss the ground No.1 of Revenue`s appeal in ITA No.76/SRT/ 2021.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. assessment order that during the course of search, evidences in the form of soft data (Pen drives) and in the form of paper documents were found, which clearly prove that the assessee and its other associate concerns are engaged in the activities of generating black money by receipts of unaccounted job work charges. The prepared table on page no.32 of the assessment order related to unaccounted job work receipts of all group concerns. The ld CIT(A) noted that the Assessing Officer has made separate additions by such receipts of unaccounted job work charges by taking 20% of the total receipts. The Assessing Officer further stated that income generated through such unaccounted job work receipts was brought back in to regular books of accounts by the assessee and its other group concerns by allotting share with high premium to Kolkata based companies and thereafter either these companies were bought by the assessee or its group concerns or shares of such companies were purchased by the assessee or its associates or directors of group companies at very low price. In this way, the assessee and other group concerns brought back their unaccounted job work receipts income into regular books of account without payment of tax. The Assessing Officer further stated that all these investor companies are Kolkata based companies and had no prior relationship either business or otherwise, suddenly invest in the assessee group companies at an exorbitantly high premium. No scientific basis or valuation to justify the seized investment. There is no negotiation or communication between the assessee group recipients companies and investor companies. None of the investor company has its own funds to invest and investment was made from the amount credited in to their bank accounts on same day or next day. The Assessing Officer issued show cause notice to the assessee and assessee replied the same along with documentary evidences to prove the genuineness of these transactions. But the Assessing Officer did not find the submissions of the assessee satisfactory therefore made the additions considering that assessee failed to discharge onus of proving identity of investors, creditworthiness of investors and genuineness of the transactions. Hence, AO made the addition of Rs.7,95,09,920/-.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 52. On appeal, ld CIT(A), after considering the submission of assessee deleted the addition. Before, ld CIT(A), the assessee contended that it has been subjected to search u/s 132 of the Act on 19.02.2015 and thus, assessment has been made by the Assessing Officer u/s 153A of the Act. The assessee contended that the assessee has filed its return of income for the year under consideration on 05.10.2010 u/s 139 of the Act and on the date of search i.e. 19.02.2015, no assessment proceedings were pending which got abated. Moreover, during the course of search at the premise of the assessee or any other group concern or directors, no evidence was found in the form of document or in the form of any oral statement recorded during the course of search or during post search enquiries which has been made basis for the additions. The assessee thus, stated that the addition made by the material found during the course of search, thus, it is clearly covered by the various binding judgements of Hon'ble jurisdictional High Court of Gujarat, and several other Hon'ble High Court. With these binding judgments of higher judicial authorities, the assessee stated that additions made by the Assessing Officer are not legally sustainable/hence deserves to be deleted. The ld CIT(A) noted that assessee filed its return of income on 05.10.2010 u/s 139 of the Act. On the date of search i.e. 19.02.2015, no proceedings was pending which got abated and time limit for issue of notice u/s 143(2) also got expired. In the assessment order, there is no mention of any document in the form of soft data, paper or in the form of statement of anyone, which was found or receded during the course of search upon the assessee and which has been made basis to these additions. The ld CIT(A) observed that these additions made by Assessing Officer are not on the basis of any incriminating evidence found during the course of search/thus, the assessee case is clearly found covered by the following binding judgments of the Higher Judicial Authorities vide which it has been categorically held that additions in the assessment order made u/s 153A of the Act cannot be made, if no incriminating material was found during the course of search, which substantiate the additions. The case laws relied upon were as under: (i) Saumya Construction Pvt. Ltd Vs. PCIT (387 ITR 529 (Guj. HC))

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. (ii) CIT Vs. Kabul Chawla (2015) 93 CCH 0210 (Delhi HC) (iii) CIT Vs. Continental Warehousing Corporation Ltd [58 taxmann.com 78] [Bombay HC] (iv) CIT Vs Lancy Constructions [383ITR168] (Karnataka HC) (v) Desai Construction Vs. ACIT (In IT(SS)A. 12 & 13/Ahd/2012 by Hon'ble ITAT, Ahmedabad (vi) DCIT Vs. Creative Trendz Pvt. Ltd. (In ITA No. 272-273/Ahd/2016) by Hon'ble ITAT, Ahmedabad, Surat Bench. 53. Thus, we note that issue under consideration is squarely covered by the judgment of jurisdictional High Court of Gujarat in the case of Saumya Construction Pvt. Ltd Vs. PCIT (387 ITR 529 (Guj. HC). The findings of the Hon`ble Court is given below: “17. Prior to introduction of Sections 153A to 153C, Chapter XIVB of the Act took care of the assessments to be made in cases of search and seizure, which were called 'block assessment', whereby, a single assessment was required to be in respect of a period of block of ten years prior to the assessment year, in which, the search was made. After the introduction of Sections 153A to 153C, a single block assessment concept has been given a go bye and now the AO has been given the power to assess or reassess the 'total income' of the six years in question in separate assessment orders. 18. To consider the rival submissions made at the Bar in the context of the present case and the substantial question of law framed, the scope of 'assessment and reassessment of total income' under Section 153A(1)(b) and the first and second proviso have to be considered. Further, for answering the above issues, guidance will have to be sought from Section 132(1) of the Act, as Section 153A of the Act cannot be read in isolation, inasmuch as, the same is triggered only on account of any search/requisition under Sections 132 or 132A of the Act. If any books of accounts or other documents relevant to the assessment had not been produced in the course of original assessment and, found in the course of search, such books of accounts or other documents have to be taken into consideration while assessing or reassessing the total income under the provisions of Section 153A of the Act. Even in a case where undisclosed income or undisclosed property has been found as a consequence of the search, the same would also be taken into consideration. The requirement of assessment or reassessment under the said section has to be read in the context of Sections 132 or 132A of the Act, inasmuch as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of the concluded assessments does not arise, which would require more reiteration and it is only in the context of the abated assessment under second proviso which is required to be assessed.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 19. The underline purpose of making assessment of total income under Section 153A of the Act is, therefore, to assess income which was not disclosed or would not have been disclosed. The purpose of second proviso is also very clear, inasmuch as, once a assessment or reassessment is 'pending' on the date of initiation of search or requisition and in terms of Section 153A a return is filed and the AO is required to assess the same, there cannot be two assessment orders determining the total income of the assessee for the said assessment year and, therefore, the proviso provides for abatement of such pending assessment and reassessment proceedings and it is only the assessment made under Section 153A of the Act would be the assessment for the said year. 20. The necessary corollary of the above second proviso is that the assessment or reassessment proceedings, which have already been 'completed' and assessment orders have been passed determining the assessee's total income and, such orders are subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In such cases, where the assessments already stands completed, the AO can reopen the assessments or reassessments already made without following the provisions of Sections 147, 148 and 151 of the Act and determine the total income of the assessee. 21. The argument raised by the counsel for the appellant to the effect that once a notice under Section 153A of the Act is issued, the assessments for six years are at large both for the AO and assessee has no warrant in law. 22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. Though such a claim by the assessee for the first time under Section 153A of the Act is not completed, the case in hand, has to be considered at best similar to a case where in spite of a search and/or requisition, nothing incriminating is found. In such a case though Section 153A of the Act would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the same would in that case not result in any addition and the assessments passed earlier may have to be reiterated." 8. In Kabul Chawla, the Delhi High Court after considering its earlier decisions in the case of Anil Kumar Bhatia (supra), CIT v. Chetan Das Cachman Das

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. [2012] 211 Taxman 61/25 taxmann.com 227, Filatex India Ltd. (supra) decision of the Karnataka High Court in the case of Canara Housing Development Company (supra) as well as the other decisions, held thus: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 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 already disclosed or made known in the course of

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

original assessment."

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

(ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 10. Since the assessment under section 153A is required to be made after a search under section 132 or requisition under section 132A, it may be germane to refer to the provisions of sections 132 and 132A of the Act. Section 132 of the Act provides for search and seizure, and to the extent the same is relevant for the present purpose, reads thus: "132. Search and seizure. - (1) Where the Director General or Director or the Chief Commissioner or Commissioner or any such Deputy Director or Deputy Commissioner as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub- section (1) of section 37 of the Indian Income- tax Act, 1922 (11 of 1922) or under subsection (1) of section 131 of this Act, or a notice under sub- section (4) of section 22 of the Indian Income- tax Act, 1922 (11 of 1922), or under sub- section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income- tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be disclosed for the purposes of the Indian Income- tax Act, 1922 (11 of 1922) or this Act (hereinafter in this section referred to as the undisclosed income or property), then,- (A) the Director General or Director] or the Chief Commissioner or Commissioner, as the case may be, may authorise any Deputy Director, Deputy Commissioner, Assistant Director, Assistant Commissioner or Income- tax Officer, or (B) such Deputy Director or Deputy Commissioner, as the case may be, may authorise any Assistant Director, Assistant Commissioner or Income-tax Officer, the officer so authorised in all cases being hereinafter referred to as the authorised officer to- (i) enter and search any building, place, vessel, vehicle or aircraft] where he has reason to suspect that such books of account, other documents, money,

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

bullion, jewellery or other valuable article or thing are kept; (ii) break open the look of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iia) search any person who has got out of, or is about to get into, or is in the building, place, vessel, vehicle or aircraft, if the authorized officer has reason to suspect that a such person has secreted about his person any such books of account, other documents, money bullion, jewellery or other valuable article or thing; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search; (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing: Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the are of jurisdiction of any Chief Commissioner or Commissioner], but such Chief Commissioner or Commissioner] has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c), then notwithstanding anything contained in section 120], it shall be competent for him to exercise the powers under this sub- section in all cases where he has reason to believe that any delay in getting the authorisation for the Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interest of the revenue:] Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control on the owner or the person who is in immediate possession or control thereof that he shall not remove part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii)" 11. Section 132A of the Act provides for "Power to requisition books of account, etc." and to the extent the same is relevant for the present purpose, reads thus: "132A. Powers to requisition books of account, etc. (1) Where the Director General or Director or the Chief Commissioner or Commissioner, in consequence of information in his possession, has reason to believe that -

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd.

(a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922, or under sub-section (1) of sec. 131 of this Act, or a notice under subjection (4) of section 22 of the Indian Income- tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents, as required by such summons or notice and the said books of account or other documents have been taken into custody by any officer or authority under any other law for the time being in force, or (b) any books of account or other documents will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act and any person to whom a summons or notice as aforesaid has been or might be issued will not or would not produce or cause to be produced, such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or (c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income-tax Act, 1922, or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the Director General or Director or the Chief Commissioner or Commissioner may authorise any Deputy Director, Deputy Commissioner, Assistant Director [Assistant Commissioner or Income-tax Officer] (hereafter in this section and in sub-section (2) of section 278D referred to as the requisitioning officer) to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer." 12. Section 132 of the Act makes provision for search and seizure. The powers of search and seizure can be exercised thereunder provided the requirements of sub- section (1) thereof are satisfied. For exercise of powers thereunder, the Commissioner would have to record satisfaction that despite issuance of notice under section 142(1) of the Act, the assessee has omitted or failed to produce or cause to produce books of account or other documents; or if such notice is issued, the assessee would fail to produce the books of account or other documents; or the assessee possesses money, bullion, jewellery, or other valuable article or thing which represents income which is not wholly or partly income or property, which has not been or would not be disclosed by the assessee. Thus, it appears that the objective of a search under section 132 of the Act is to secure evidence which is not likely to be made available by issue of summons or by visiting, in ordinary course, the premises concerned. The authorities under the Act have powers to summon persons and documents and have to resort to search and

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. seizure when there is evidence of undisputed documents or assets which have not been and would not have been disclosed in the ordinary course. 13. Similarly, under section 132A of the Act, the authorizing authority would acquire the jurisdiction to authorize an officer to requisition books of account or other documents or assets which have been taken into custody by an officer or authority under any law and thereafter to proceed to deal with the assets provided in the manner provided under sections 132 and 132B only where the authorizing authority has in consequence of any information in his possession reason to believe that such assets represent wholly or partly income or property which has not been or would not have been disclosed for the purposes of the Act by any person from whose possession or control such assets had been taken into custody by the officer or authority from whom these were requisitioned. 14. Essentially, therefore, both the provisions contemplate search and requisition where the assessee is not likely to disclose his income. It appears that the object of both the provisions is to unearth the income which the assessee has not or is not likely to disclose. 15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is linked with search and requisition under sections 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assessee the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub-section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub- section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the legislature is clear viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determining the total income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 17. In the facts of the present case, a search came to be conducted on 07.10.2009 and the notice was issued to the assessee under section 153A of the Act for assessment year 2006-07 on 04.08.2010. In response to the notice, the assessee filed return of income on 18.11.2010. In terms of section 153B, the assessment was required to be completed within a period of two years from the end of the financial year in which the search came to be carried out, namely, on or before 31st March, 2012. Here, insofar as the impugned addition is concerned, the notice in respect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of statements recorded on oath of Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 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 some material collected by the Assessing Officer much subsequent to the search, that the impugned additions came to be made. 19. 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 of Jai 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. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismiss”

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 54. Therefore, we note that ld CIT(A) deleted the addition by following binding judgment of Jurisdictional High Court of Gujarat in the case of Saumya Construction Pvt. Ltd (supra), hence we do not find any infirmity in the order of ld CIT(A). Therefore, we dismiss ground Nos.7 to 11 raised by the Revenue in ITA No.76/SRT/2021. 55. In the result, Ground Nos.7 to 11 raised by the Revenue in ITA No.76/SRT/2021, are dismissed.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 58. On appeal, ld CIT(A) deleted the addition. The ld Counsel submits that during the course of assessment proceedings, the assessee has filed name, address & PAN of investor company, copy of share application forms, copy of share certificates, Bank statements of Assessee company and investor companies, confirmation from investor companies and acknowledgment of returns of income of investor companies. Thus, the assessee has submitted that it has discharged its onus as required in the section 68 of the Act and identity of the creditor, genuineness of the transactions and creditworthiness of the creditors has been proved beyond doubt. The assessee further contended that the assessee is a public limited company and amended provisions of section 68, which require source of source is to be proved is not applicable in the case of assessee. The assessee also stated that M/s. Dhanvridhi Financial Consultants Pvt. Ltd and M/s. inherent Computers Pvt. Ltd, both the companies are found active even on MCA site as on 31st March, 2020. The investor companies are sister concerns of the assessee company. Therefore, there is no benefit to take accommodation entry from its own sister concerns. The assessee also stated that Assessing Officer's finding that it is Jamakharch Company is factually incorrect as Investor Company is having turnover of Rs.81.28 Lacs in A.Y.2015-16 in M/s Dhanvridhi Financial Consultants Pvt. Ltd and Rs.1.99 Crore in the case of Inherent Computers Pvt. Ltd. The assessee further stated that a search action u/s 132 of the Act was conducted at Betex India Limited, an associate concern of the assessee and no evidence was found in any form related to receipts of accommodation entries from M/s. Dhanvridhi Financial Consultants Pvt. Ltd and M/s inherent Computers Pvt. Ltd. The assessee further argued that in the statement of Shri Beni Prasad Lahoti, he did not mention the name of M/s Dhanvridhi Financial Consultants Pvt. Ltd and M/s Inherent Computers Pvt. Ltd and therefore the statement of Shri Beni Prasad Lahoti has no relevance in the case of the assessee. The assessee stated that the transaction is through regular banking channel and it has submitted all the necessary documents to discharge its onus.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. 59. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 60. We have heard both the parties. We note that Assessee had furnished following documents with respect to both the investor/lender entities: (i) Copy of confirmation of Accounts by lender/investor (ii) Copy of PAN Card of each of the lender/investor (iii) Copy of Bank Statement of lender/investor (iv) Copy of 1TR Acknowledgement of each of lender/investor (v) Copy of ITR Acknowledgement of each of lender/investor Upon perusal of documents pertaining to M/s Dhanvridhi Financial Consultants Pvt. Ltd, the ld CIT(A) observed that this entity is assessed to income-tax vide PAN AADCD0718Q and has filed return of income for the year under consideration after paying taxes of Rs.5,94,338/-, it has duly confirmed the transactions carried out with the assessee. The perusal of its bank statement would show that all the funds have been transferred to the assessee through banking channels and there was no immediate cash deposit before transfer of funds to the assessee. The financial of this entity have duly been audited as per the Companies Act. The transactions carried out with the assessee have duly been reflected in its financial statements. This entity has Reserves a Surplus of Rs, 1973.36 Lacs, which have been used to make further investments. Similar are the documents in the case of M/s Inherent Computers Pvt. Ltd. This entity has also filed confirmation of account and it holds valid PAN No.AADCR636GG which is evident from its return of income. The transactions carried out with the assesses are through banking channels and there is no immediate cash deposit before transfer of funds to the assessee. Its financial statements have duly been audited and this entity has Reserves & Surplus of more than Rs.1487.05 Lacs. 61. The ld CIT(A) has gone through the above facts and observed that primary onus of establishing the identity of the investor entities, proving their respective creditworthiness and to establish the genuineness of the transactions have duly

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. been discharged by the Assessee. The Assessee was not required to prove the source of source for this year. Therefore, the onus was on AO to rebut these evidences by bringing on record cogent material to dislodge Assessee's evidences. Once the initial onus, was discharged by the Assessee, it was incumbent upon the AO to carry out further investigation to support the allegation that the credits were unexplained. It is trite law that no additions could be based merely on doubts, conjectures or surmises. Therefore, the additions, as made by AO, are not sustainable in the eyes of law. The ld CIT(A) noted that genuineness of the transactions further proved by the fact that all the payments have been made through proper banking channels which is reflecting in the bank statement. The Identity is further proved by the fact that M/s Dhanvridhi Financial Consultants Pvt. Ltd and M/s Inherent Computers Pvt. Ltd are found active compliant as on 31st March, 2020 on the MCA site and thus are not Shell companies as held by the AO. It is pertinent to mention that one time registration of the companies may be fictitious but continuously uploading of annual reports on MCA site, timely information of resolutions regarding any decisions to ROC, timely intimation regarding change in company administrations, completely maintaining minutes of each and every meeting to ROC will not be generally found in fishy and paper companies. Further, M/s Dhanvridhi Financial Consultants Pvt. Ltd. for AY.2016- 17 has been assessed by ITO, Ward 9(1), Kolkata on 16.12.2018 and M/s Inherent Computers Pvt. Ltd has been assessed by ITO 11(2), Kolkata for AY.2016-17 on 10.12.2018 which itself proved the identity of the investor company. The assessment order copies of both the companies were filed before ld CIT(A) vide on page no. 177 to 182 & 183 to 184 of Paper book. It is also a fact that a search action u/s 132 of the Act was conducted at Betex India Limited, an associate concern of the assessee and during the course of search, no evidences was found anywhere which remotely suggest that the assessee has paid amount in cash to anyone to get cheque of Rs.2.00 crore from M/s Dhanvridhi Financial consultants Pvt. Ltd. and M/s Inherent Computers Pvt. Ltd. It is also a fact that Shri Beni Prasad Lahoti whose statement has been reproduced in the assessment order by the

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. Assessing Officer did not name M/s Dhanvridhi Financial Consultants Pvt. Ltd. and M/s Inherent Computers Pvt. Ltd in his statement. Therefore, ld CIT(A) noted that it is established beyond doubt that assessee has discharged its onus of providing identity of investor, creditworthiness of investor and genuineness of the transactions.

ITA Nos.52/SRT/2022 & 171, 174/SRT/2021/IT(SS)A 69, 70, 75 & 76/SRT/2021 Betex India Ltd. & Dhanpriya Prints Pvt. Ltd. or documents is to be taken, then either the documents which has been relied on by the authority or the persons on whose statements authority is relying must provide him the relied documents or the cross examinations of the persons on whose statements authority is relying before making any addition.” 63. Therefore, we note that ld CIT(A) relied on the binding judgments referred to above, and deleted the additions amounting to Rs.2,00,00,000/-. We do not find any infirmity in the findings of ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.

Registry is directed to place one copy of this order in all appeals folder / case file(s).

Order is pronounced in the open court on 23/12/2022 by placing the result on the Notice Board.

Sd/- Sd/- (PAWAN SINGH) (Dr. A. L. SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat / �दनांक/ Date: 23/12/2022 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat