DLF UNIVERSAL LTD., Gurgaon v. DCIT, CIRCLE- 1(1), GURGAON

CO 12/DEL/2018 | 2009-2010
Pronouncement Date: 26-03-2021 | Result: Dismissed

Appeal Details

RSA Number 1220123 RSA 2018
Assessee PAN AAACJ1655P
Bench Delhi
Appeal Number CO 12/DEL/2018
Duration Of Justice 3 year(s) 2 month(s) 15 day(s)
Appellant DLF UNIVERSAL LTD., Gurgaon
Respondent DCIT, CIRCLE- 1(1), GURGAON
Appeal Type Cross Objection
Pronouncement Date 26-03-2021
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 26-03-2021
Assessment Year 2009-2010
Appeal Filed On 11-01-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI O.P. KANT ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.5963/DEL./2017 ASSESSMENT YEAR: 2009-10 DCIT CIRCLE-1(1) GURGAON VS. M/S. DLF UNIVERSAL LTD. 9 TH FLOOR DLF CENTRE SANSAD MARG NEW DELHI PAN :AAACJ1655P (APPELLANT) (RESPONDENT) AND C.O. NO. 12/DEL./2018 [ARISING OUT OF ITA NO.5963/DEL./2017] ASSESSMENT YEAR: 2009-10 DLF UNIVERSAL LTD. 3 RD FLOOR SHOPPING MALL ARJUN MARG PHASE-1 GURGAON VS. DCIT CIRCLE-1(1) GURGAON PAN :AAACJ1655P (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT AM: THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST ORDER DATED 30/07/201 7 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-1 GURGAON [IN DEPARTMENT BY MS. NIDHI SRIVASTAVA CIT(DR) ASSESSEE BY SH. SATYAJEET GOEL CA DATE OF HEARING 17.03.2021 DATE OF PRONOUNCEMENT 26.03.2021 2 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2009-10 . THE RESPECTIVE GROUNDS RAISED BY THE REVENUE AND ASSESS EE ARE REPRODUCED AS UNDER: (I) GROUNDS OF APPEAL OF THE REVENUE: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN OB SERVING THAT THE PROCEEDINGS U/S 153A OF THE ACT ARE NOT INITIATED W HERE NO INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION IN VIEW OF DECISION OF HONBLE DE LHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2015) 380 ITR 573 (DEL.). 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF RS.3 84 01 375/- MADE BY THE AO ON ACCO UNT OF DISALLOWANCE UNDER SECTION 14A. 3. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD DELETE OR AMEND GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HE ARING OF APPEAL. (II) GROUNDS OF CROSS OBJECTION OF THE ASSESSEE: 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT (A) HAS GROSSLY ERRED BY NOT ADJUDICATING ON TH E GROUND RAISED BY THE RESPONDENT CHALLENGING THE INITIATION OF PRO CEEDINGS U/S 153 A WHEN NO SEARCH HAS BEEN CONDUCTED ON THE RESP ONDENT AS A) THE RESPONDENT WAS MERELY JOINT OWNER OF THE SEA RCHED LOCKERS NAMELY 733 AND 852 OF CORPORATION BANK AND WAS NOT INTIMATED ABOUT SEARCH EVEN NO COPY OF PANCHNAMA WAS SERVED ON COMPLETION OF THE SEARCH B) NO INQUIRY OF ANY NATURE DURING THE PERIOD FROM 30.01.2013(DATE OF SEARCH) TO 10.03.2015(SERVICE OF NOTICE U/S 153A) HAS BEEN CARRIED OUT EITHER BY THE INVESTIGA TING DIVISION OR BY THE ASSESSING OFFICER TILL THE INITIATION OF PR OCEEDINGS U/S 153 A OF THE ACT. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN NOT ADJUDICATING ON THE GROUND RAISED BY THE RESPONDENT CHALLENGING THE VALIDITY OF THE A SSESSMENT ORDER PASSED U/S 153A/143(3) 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE VALIDITY OF ASSES SMENT ORDER DATED 30.03.2015 U/S 153A/143(3) PASSED OF THE ASSE SSING OFFICER WHICH IS VOID-AB-INITIO. 4. THAT THE RESPONDENT CRAVES LEAVE TO ADD ALTER AMEND SUBSTITUTE AND FORGO ANY OR ALL THE GROUNDS OF APPEAL BEFORE O R AT THE TIME OF HEARING. 3 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE INCOME-TAX ACT 196 1 (IN SHORT THE ACT) WAS CARRIED OUT IN RESPECT OF LOCKER NO. 852 MAINTAINED WITH CORPORATION BANK GURGAON (HARYANA) WHICH WAS HELD BY M/S ORIS INFRASTRUCTURE PRIVATE LIMITED AND M/S DLF RETAIL DEVELOPERS LTD. JOINTLY. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS REPORTED THAT THE WARRANT FOR SEARCH OF S AID LOCKER WAS CONDUCTED ON 30/01/2013. 2.1 M/S DLF RETAIL DEVELOPERS LTD. LATER ON MERGED WIT H THE ASSESSEE I.E. M/S DLF UNIVERSAL LTD. AND THEREFO RE THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 153A OF THE ACT ASKING THE ASSESSEE TO FILE RETURN OF INCOME UNDER 153A PROCEEDINGS. IN RESPONSE THE ASSESSEE SUBMITTED TH AT THE RETURN FILED ORIGINALLY WHICH WAS FURTHER REVISED ON 31/0 3/2010 DECLARING TOTAL INCOME OF 182 30 17 936/- MIGHT BE TREATED AS RETURN IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT. 2.2 ACCORDING TO THE ASSESSING OFFICER IN THIS CASE P ROCEEDING UNDER SECTION 147 OF THE ACT WERE INITIATED BY WAY OF ISSUE NOTICE UNDER SECTION 148 OF THE ACT WHICH WERE PENDING O N THE DATE OF ISSUE OF NOTICE U/S 153A OF THE ACT AND SAME GOT A BETTED DUE TO COMMENCING OF PROCEEDING UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER THEREAFTER COMPUTED 153A PROCEED INGS ON 30.03.2015 AND MADE DISALLOWANCE OF RS. 3 84 01 375 /- UNDER SECTION 14A OF THE ACT. BEFORE THE LD. CIT(A) THE ASSESSEE CHALLENGED VALIDITY OF MAKING ADDITION FOR DISALLOW ANCE UNDER SECTION 14A OF THE ACT AS WELL AS CHALLENGED THE AD DITION ON MERIT. ACCORDING TO THE LD. CIT(A) FACTS OF THE CASE ARE COVERED BY THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF KABUL 4 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 CHAWLA 380 ITR 573. THE LD. CIT(A) HELD THAT AS ON THE DATE OF THE SEARCH I.E. 30/01/2013 NO ASSESSMENT/REASSES SMENT PROCEEDINGS WERE PENDING IN THE RELEVANT ASSESSMENT YEAR AND THE PROCEEDING UNDER SECTION 147 WHICH HAVE BEEN CL AIMED TO BE PENDING BY THE ASSESSING OFFICER WERE ACTUALLY INI TIATED ON 23/10/2013 I.E. BEYOND THE DATE OF THE SEARCH. THE LD. CIT(A) HAS ALSO OBSERVED THAT THERE IS NO REFERENCE OF ANY INC RIMINATING MATERIAL AS FAR AS ADDITION UNDER SECTION 14A OF TH E ACT IS CONCERNED. ACCORDINGLY THE LEARNED CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED THE REVENUE IS BEFORE THE TRIBUNAL BY WAY OF THIS APPEAL AND THE ASSESSEE HAS ALSO RAISED ITS CROSS OBJECTIONS. 3. BEFORE US THE PARTIES APPEARED THROUGH VIDEO CONFE RENCING FACILITY AND FILED DOCUMENTS ELECTRONICALLY. 4. THE LEARNED DR RELIED ON THE ORDER OF THE ASSESSIN G OFFICER. SHE REFERRED TO THE REMAND REPORT AS REPRODUCED IN PARA 3.7 OF LD. CIT(A) WHERE THE ASSESSING OFFICER HAS MENTION ED THE DATE OF THE SEARCH AS 23/01/2016. SHE SUBMITTED THAT IN CAS E SEARCH IS CONDUCTED ON 23.01.2016 THE REASSESSMENT PROCEEDIN GS INITIATED ON 14/11/2013 ARE VALIDLY PENDING AS ON DATE OF SEA RCH AND THEREFORE RATIO IN THE CASE OF KABUL CHAWALA (SUPRA) WOULD NOT BE APPLICABLE OVER THE FACTS OF THE INSTANT CASE. 5. ON THE OTHER HAND LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT SEARCH ON THE LOCKER WAS CONDUCTED O N 30/01/2013 AS MENTIONED IN THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. HE ALSO SUPPORTED THE DATE OF CO NDUCT OF THE SEARCH BY WAY OF PANCHNAMA OF SEARCH PROCEEDINGS IN CASE OF LOCKER. THE ASSESSEE SUBMITTED THAT THE RATIO IN TH E CASE OF KABUL 5 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 CHAWALA (SUPRA) HAS BEEN VALIDLY APPLIED BY THE LEARNED CI T(A). HE FURTHER SUBMITTED THAT IN THE ASSESSMENT YEAR 20 08-09 ALSO THE TRIBUNAL HAS DELETED THE ADDITION MADE UNDER SE CTION 153A PROCEEDINGS WITHOUT ANY INCRIMINATING MATERIAL FOU ND FROM THE PREMISES OF THE ASSESSEE APPLYING THE RATIO IN THE CASE OF KABUL CHAWLA (SUPRA). 6. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON TH E ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD. IN THE CASE THE LD. CIT(A) HAS DELETED THE ADDITION APPLYI NG THE RATIO IN THE CASE OF KABUL CHAWAL (SUPRA) THAT NO ADDITION COULD BE MADE UNDER 153A PROCEEDINGS UNDER ABSENCE OF ANY INCRIMI NATING MATERIAL IN CASE OF COMPLETED ASSESSMENTS. THUS F OR INVOKING THE RATIO OF KABUL CHAWLA (SUPRA) THE TWO CONDITIONS ARE REQUIRED TO BE SATISFIED. FIRSTLY NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF THE SEARCH. SECONDLY NO ASSESSMENT/REASSESSMENT PROCEEDINGS WERE PENDING IN THE RELEVANT ASSESSMENT YEAR AS ON THE DATE OF THE SEAR CH. 6.1 AS FAR AS FIRST CONDITION IS CONCERNED IN THE INS TANT CASE ADDITION UNDER SECTION 14A OF THE ACT HAS BEEN MADE AND EVIDENTLY THERE IS NO REFERENCE OF ANY INCRIMINATIN G MATERIAL IN THE ASSESSMENT ORDER WITH REGARD TO THE ADDITION UNDER SECTION 14A OF THE ACT. THUS THERE IS NO DISPUTE THAT THERE WA S NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF T HE SEARCH RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION . 6.2 REGARDING THE SECOND CONDITION ACCORDING TO THE A SSESSING OFFICER NOTICE UNDER SECTION 148 OF THE ACT FOR COM MENCING REASSESSMENT PROCEEDING WAS ISSUED ON 23/10/2013 AN D NOTICE UNDER SECTION 153A WAS ISSUED ON 10/03/2015 AND THE REFORE 6 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 ASSESSMENT WAS PENDING IN INSTANT ASSESSMENT YEAR. HOWEVER THE LD. CIT(A) HELD THAT NO PROCEEDINGS WERE PENDIN G AS ON THE DATE OF THE SEARCH AND THEREFORE NOTICE UNDER SEC TION 148 ISSUED AFTER THE DATE OF THE SEARCH WAS AVOID AB INITIO. T HE FINDING OF THE LEARNED CIT(A) IS REPRODUCED AS UNDER: 3. ON THE DATE OF SEARCH NO PROCEEDINGS WERE PENDI NG U/S 148 AND ISSUE OF NOTICE U/S 148 AFTER THE DATE OF SEARCH WA S AB-INITIO VOID. FROM THE FACTS DISCUSSED ABOVE IT IS EVIDENT THAT THE SEARCH PERTAINING TO WHICH THE ASSESSMENT U/S 153A HAS BEE N INITIATED IN THIS CASE WAS CONDUCTED ON 30/01/2013. THE APPELLAN T HAS CONTENDED THAT ON THIS DATE NO PROCEEDINGS U/S 143( 2) OR 148 WERE PENDING AND IN THESE CIRCUMSTANCES THE NOTICE U/S 148 ISSUED ON 23/10/2013 IS ABINITIO AVOID. TO EXAMINE THE APPELL ANTS CONTENTION IT MAY BE RELEVANT TO REFER TO THE SECO ND PROVISO TO SECTION 153 A WHICH READS AS UNDER:- PROVIDED FURTHER THAT ASSESSMENT OR RE-ASSESSMENT IF ANY RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AYS REFERRED TO IN THIS SUBSECTION PENDING ON THE D ATE OF INITIATION OF SEARCH U/S 132 OR MAKING OF REQUISITI ON U/S 132A AS THE CASE MAY BE SHALL ABATE. B. THE PLAIN READING OF THE AFORESAID PROVISO SHOWS THAT FOR ANY PROCEEDINGS I OF ASSESSMENT OR RE-ASSESSMENT TO ABA TE AS THE CONSEQUENCE OF SEARCH U/S 132 THE SAME SHOULD BE P ENDING ON THE DATE OF INITIATION OF SEARCH. IN THE APPELLANTS CA SE IT IS UNDISPUTED FACT ON RECORD THAT NO PROCEEDINGS WERE PENDING U/S 143(2) OR U/S 148 ON THE DATE OF SEARCH I.E. 30/01/2013. THEREFOR E THERE IS NO QUESTION OF ANY RE-ASSESSMENT PROCEEDINGS U/S 148 H AVING BEEN ABATED ON THE DATE OF SEARCH. FURTHER ONCE A CASE HAS BEEN SUBJECTED TO SEARCH U/S 132 THE ASSESSMENT OR RE-A SSESSMENT OF THE INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLI NG WITHIN SIX ASSESSMENT YEARS PRIOR TO THE DATE OF SEARCH HAS TO BE MADE BY THE AO U/S 153A. IN THESE CIRCUMSTANCES THE ISSUE OF N OTICE U/S 148 BY THE AO AFTER DATE OF SEARCH IS VOID-AB-INITIO. B. KEEPING IN VIEW THE AFORESAID FACTUAL AND LEGAL POSITION THE PROCEEDINGS U/S 148 IN THIS CASE ARE HELD TO BE BAD IN LAW. 6.3 IN VIEW OF FINDING THE LD. CIT(A) HELD THAT NO AD DITION UNDER SECTION 14A COULD BE MADE UNDER SECTION 153A PROCEE DINGS OBSERVING AS UNDER: II THE VALIDITY OF ADDITION U/S 14A VIDE ORDER U/S 153A/143(3) A. IN THIS REGARD THE APPELLANT HAS CONTENDED THAT AS THE PROCEEDINGS U/S 148 WERE BAD IN LAW NO ASSESSMENT OR RE- 7 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 ASSESSMENT PROCEEDINGS WERE PENDING WHEN THE NOTICE U/S 153A WAS ISSUED AND IN THESE CIRCUMSTANCES ANY ADDITION MAY BE MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH. SIMILAR ISSUE WAS DECIDED BY ME I N THE APPELLANTS OWN CASE FOR AY 2008-09 IN APPEAL NO. 140/15-16. IN THIS CASE VIDE ORDER DATED 23/06/2017 I HELD AS UNDER:- 3.7 IT IS SEEN FROM THE FACTS RECORDED IN THE ASSES SMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT AND THE AOS R EPORT DATED 16/01/2017 THAT NO DOCUMENT PERTAINING TO THE APPELLANT WAS FOUND FROM ANY OF THE TWO LOCKERS IN RESPECT OF WHICH WARRANT OF AUTHORIZATION BEARING THE APPELLAN TS NAME WAS ISSUED. THE ONLY DOCUMENTS FOUND PERTAINING TO THE APPELLANT WERE SEIZED FROM THE OFFICE OF M/S ORRIS INFRASTRUCTURE PVT. LTD. WHICH DOES NOT BELONG TO T HE APPELLANT. EVEN IN THESE DOCUMENTS THERE WAS NOTHING PERTAININ G TO THE ISSUE OF ANY EXEMPT INCOME BEING EARNED BY THE APPE LLANT ON THE BASIS OF WHICH THE DISALLOWANCE U/S 14A COULD B E MADE. IN THESE CIRCUMSTANCES THE DISALLOWANCE MADE BY TH E AO U/S 14A READ WITH RULE 8D IS LEGALLY NOT SUSTAINABLE. T HE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE DEL HI HIGH COURT IN THE CASE OF CIT V/S KABUL CHAWLA (2015) 38 0 ITR 573 AND PR. CIT V/S KURELE PAPER MILLS LTD 380 ITR 571. IT MAY BE RELEVANT TO NOTE HERE THAT THE SLP FILED BY THE DEPARTMENT AGAINST THIS ORDER IN THE CASE OF KURELE PAPER MILLS HAS BEEN DISMISSED BY THE HONBLE SUPREME COU RT VIDE ORDER DATED 07/12/2015 (2016) 380 ITR (ST) 64 - ED. 3.8 KEEPING IN VIEW THE AFORESAID FACTUAL AND LEGAL POSITION THE DISALLOWANCE MADE BY THE AO IS DELETED. THIS GR OUND OF APPEAL IS ALLOWED. B. THE FACTS FOR THE CURRENT YEAR I.E. AY 2009-10 A RE THE SAME AS THE PROCEEDINGS U/S 153A RELATE TO THE SAME SEARCH. KEE PING IN VIEW THE FACTUAL AND LEGAL POSITION DISCUSSED ABOVE THE ADDITION MADE BY THE AO IS DELETED 6.4 WE HAVE PERUSED THE PANCHNAMA OF SEARCH OPERATION IN THE CASE OF THE LOCKER IN THE JOINT NAME OF THE ENTITY MERGED WITH THE ASSESSEE AND IT IS EVIDENT FROM SAID PANCHANAMA THA T THE SEARCH WAS CONDUCTED ON 30/01/2013. SINCE THE NOTICE UNDER SECTION 148 WAS ISSUED ON 23/10/2013 WHICH IS AFTER THE DA TE OF THE SEARCH IT IS EVIDENT THAT AS ON THE DATE OF THE SE ARCH NO ASSESSMENT/ REASSESSMENT PROCEEDINGS WERE PENDING I N THE INSTANT ASSESSMENT YEAR. THE LEARNED ASSESSING OFFI CER HAS 8 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 WRONGLY CONSIDERED THE PENDENCY OF THE ASSESSMENT P ROCEEDING ON THE DATE OF THE ISSUE OF THE NOTICE UNDER SECTIO N 153A OF THE ACT. 6.5 THE TRIBUNAL IN THE CASE OF THE ASSESSEE IN ASSESS MENT YEAR 2008-09 IN ITA NO.5558/DEL/2017 HAS DELETED THE IDE NTICAL DISALLOWANCE UNDER SECTION 14A OF THE ACT OBSERVIN G AS UNDER: 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF SUBMISSIONS MADE ON EITHER SIDE. THE ASSESSMENT ORDER DOES NOT SHOW ANY MATERIAL SEIZED IN THE SEARCH AND SEIZURE PROCEEDIN GS TO FORM A BASIS FOR ADDITION U/S. 14A READ WITH RULE 8D OF TH E RULES. IT IS NOT IN DISPUTE THAT AS ON THE DATE OF ASSUMPTION OF JUR ISDICTION BY THE ASSESSING OFFICER U/S. 153A THE ASSESSMENT FOR THE ASSESSMENT YEAR 2008-09 WAS A CONCLUDED ONE AND THEREFORE IT DOES NOT GET ABATED. IT IS SETTLED PRINCIPLE OF LAW THAT IN TERM S OF DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KA BUL CHAWLA (SUPRA) CHINTELS INDIA LTD VS. DCIT 397 ITR 416 ( DEL) PCIT VS. BEST INFRASTRUCTURE (INDIA) LTD. 397 ITR 82 (DEL) PCIT VS. MEETA GUTGUTIA 395 ITR 526 (DEL) LD. PCIT VS. MS LATA J AIN 384 ITR 543 (DEL) THE ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE AND THE TOTAL INCOME FOR SUC H ASSESSMENT YEARS WILL HAVE TO BE COMPUTED BY THE AS SESSING OFFICERS AS A FRESH EXERCISE; AND THAT ALTHOUGH SEC TION 153A OF THE ACT DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR O THER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND IT DOES NOT MEAN THAT THE AS SESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE U NDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. IN TH E ABSENCE OF ANY MATERIAL TO THE CONTRARY IT IS NOT POSSIBLE FOR US TO FIND FAULT WITH THE FINDINGS OF THE LD. CIT(A) WHILE FOLLOWING THE DECI SION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KABUL CHAW LA (SUPRA) TO REACH A CONCLUSION THAT THE ADDITION MADE U/S. 14A READ WITH RULE 8D CANNOT BE SUSTAINED IN THE ABSENCE OF ANY INCRIM INATING MATERIAL UN-EARTHED DURING THE SEARCH PROCEEDINGS. WE ACCOR DINGLY FIND THE GROUNDS OF APPEAL AS DEVOID OF MERITS AND THE SAME ARE LIABLE TO BE DISMISSED AND ARE ACCORDINGLY DISMISSED. IN THE RES ULT THE APPEAL OF THE REVENUE IS DISMISSED AND CONSEQUENTLY THE C ROSS OBJECTIONS FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. THE CROS S OBJECTIONS OF THE ASSESSEE ARE THEREFORE ALSO DISMISSED AS INFR UCTUOUS. 6.6 IN VIEW OF OUR DISCUSSION ABOVE IN ABSENCE OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF T HE SEARCH AND 9 ITA NO.5963/DEL./2017 & C.O. NO.12/DEL./2018 NO ASSESSMENT/REASSESSMENT PROCEEDINGS PENDING AS O N THE DATE OF THE SEARCH THE RATIO IN THE CASE OF DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWAL (SUPRA) IS SQUARELY APPLICABLE ON THE FACTS OF THE CASE AND ACCORDINGLY NO ADDITION COULD HAVE BEEN MADE IN THE INSTANT ASSESSMENT YEAR . THE ADDITION MADE BY THE ASSESSING OFFICER HAS RIGHTLY BEEN DELETED BY THE LEARNED CIT(A) AND WE UPHOLD THE SAME. 6.7 THE GROUNDS OF APPEAL OF THE REVENUE ARE ACCORDING LY DISMISSED. 7. SINCE THE ADDITIONS IN DISPUTE HAVE ALREADY BEEN D ELETED THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE RENDERED INFRUCTUOUS AND ACCORDINGLY WE DISMISS THE SAME. 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH 2021 SD/- SD/- (SUCHITRA KAMBLE) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26 TH MARCH 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI