Deputy Commissioner of Income Tax Central Circle-2(1), Bangalore v. Shri Peter Caddy , Bangalore

ITA 1632/BANG/2018 | 2010-2011
Pronouncement Date: 03-03-2021 | Result: Allowed

Appeal Details

RSA Number 163221114 RSA 2018
Assessee PAN AEVCP8008F
Bench Bangalore
Appeal Number ITA 1632/BANG/2018
Duration Of Justice 2 year(s) 9 month(s) 15 day(s)
Appellant Deputy Commissioner of Income Tax Central Circle-2(1), Bangalore
Respondent Shri Peter Caddy , Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 03-03-2021
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 03-03-2021
Date Of Final Hearing 02-03-2021
Next Hearing Date 02-03-2021
Last Hearing Date 11-09-2018
First Hearing Date 20-03-2019
Assessment Year 2010-2011
Appeal Filed On 17-05-2018
Judgment Text
ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER ITA NOS.1630 TO 1633/BANG/2018 ASSESSMENT YEARS: 2008-09 2009-10 2010-11 & 2012-13 RESPECTIVELY DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-2(1) BENGALURU VS. SHRI PETER CADDY NO.10 HALLS ROAD PURUVA PARKWAY FLAT NO.003 RICHARDS PARK BENGALURU-560 005 PAN NO : AEVCP8008F APPELLANT RESPONDENT C.O. NOS.112 TO 115/BANG/2018 (ARISING OUT OF ITA NOS.1630 TO 1633/BANG/2018) ASSESSMENT YEARS : 2008-09 2009-10 2010-11 & 2012-13 RESPECTIVELY SHRI PETER CADDY NO.10 HALLS ROAD PURUVA PARKWAY FLAT NO.003 RICHARDS PARK BENGALURU-560 005 VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-2(1) BENGALURU APPELLANT RESPONDENT ITA NO.2389/BANG/2018 ASSESSMENT YEAR : 2012-13 SHRI PETER CADDY NO.10 HALLS ROAD PURUVA PARKWAY FLAT NO.003 RICHARDS PARK BENGALURU-560 005 VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-2(1) BENGALURU APPELLANT RESPONDENT ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 2 OF 19 REVENUE BY : MUZAFFAR HUSSAIN D.R. ASSESSEE BY : SMT. R. PRATHIBHA A.R. DATE OF HEARING : 02.03.2021 DATE OF PRONOUNCEMENT : 03.03.2021 O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER: THE FIRST FOUR APPEALS IN ITA NOS.1630 TO 1633 OF 2 018 BY REVENUE AND CO. NOS.112 TO 115 OF 2018 BY ASSESSEE ARE FOR THE ASSESSMENT YEARS 2008-09 2009-10 2010-11 & 2012-1 3 ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF CIT(A) FOR THE RESPECTIVE ASSESSMENT YEARS. ITA NO.2389 OF 2018 BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 29.6.2018 U/S OF THE INCOME TAX ACT 1961 (HEREINAFTER CALLED AS THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE ORIGINALLY CIT(A)-1 1 BENGALURU PASSED ORDER DATED 26.06.2016 IN ALL THESE ASSESSME NT YEARS DISMISSING THE APPEALS OF THE ASSESSEE AND UPHOLD T HE ORDER OF THE A.O. PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. THE ASSESSEE FILED APPEALS IN RESPECT OF ALL THESE ASSE SSMENT YEARS BEFORE THE TRIBUNAL IN ITA NOS.1576 TO 1581/BANG/2016 AND THE TRIBUNAL VIDE ORDER DATED 14.07.2017 DISMISSED THE APPEALS A FTER CONSIDERING THE ISSUES IN ALL THESE ASSESSMENT YEARS AS FOLLOWS :- 3. GROUND NOS. 1 TO 3 ARE REGARDING THE VIOLATION OF PRINCIPLE OF NATURAL JUSTICE FOR WANT OF PROPER OPPORTUNITY O F HEARING TO THE ASSESSEE. ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 3 OF 19 4. WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTATIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LEA RNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS SUBMI TTED THAT THE CIT (APPEALS) HAS NOT GRANTED PROPER OPPORTUNITY OF HEARING BEFORE PASSING THE IMPUGNED ORDER. THE LEARNED AUTH ORISED REPRESENTATIVE OF THE ASSESSEE HAS REFERRED TO THE PAGE 3 OF THE IMPUGNED ORDER OF THE CIT (APPEALS) AND SUBMITTED T HAT THE CIT (APPEALS) HAS MADE AN OBSERVATION THAT THE ASSESSEE WAS NOT SERIOUS IN PROSECUTING THE APPEAL WHEREAS THE REPRE SENTATIVE OF THE ASSESSEE APPEARED BEFORE THE CIT (APPEALS) AND MADE REPRESENTATION WITH SUBMISSIONS ON LEGAL GROUNDS AN D THERE WAS COMPLIANCE OF NOTICE IN THE APPEAL PROCEEDINGS BEFO RE THE CIT(APPEALS). 5. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO THE VARIOUS NOTICES ISSUED BY THE CIT (APPEALS) AS GIVEN IN THE TABLE AT PAGE NO.3 OF THE ORDER AND THEREAFTER THE ACIT WAS DIRECTED TO SERVE THE NOTIC E ON THE ASSESSEE. THUS THE CONDUCT OF THE ASSESSEE WAS CLEA RLY EXHIBITED FROM THE FACT THAT THE ASSESSEE REFUSED TO TAKE NOT ICE ON VARIOUS PRETEXTS. HE HAS FURTHER CONTENDED THAT THE ASSESSE E DID NOT CO- OPERATE EITHER IN THE ASSESSMENT PROCEEDINGS OR BEF ORE THE CIT (APPEALS). 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD AT THE OUTSET WE NOTE THAT THE CIT (APPEALS) HAS GIVEN THE DETAILS OF THE VARIOUS NOTI CES ON FIVE OCCASIONS ISSUED TO THE ASSESSEE WHICH WERE RECEIVE D BACK WITH THE POSTAL REMARK THAT IT WAS NOT CLAIMED OR NOT RECEIV ED BY THE ASSESSEE. FINALLY THE NOTICE OF HEARING WAS SERVED TO THE ASSESSEE THROUGH INCOME TAX INSPECTOR WHOSE REPORT WAS ALSO REPRODUCED BY THE CIT (APPEALS). ALL THESE DETAILS AND RECORDS AS WELL AS THE OBSERVATIONS OF THE CIT (APPEALS) ARE GIVEN ON PAGE NOS.3 & 4 OF THE IMPUGNED ORDER AS UNDER: ' BEFORE PROCEEDING WITH THE CASE IT IS IMPORTANT TO BRING OUT THE CONDUCT OF THE APPELLANT DURING THE COURSE OF A PPELLATE PROCEEDINGS. HE HAS REFUSED TO TAKE THE NOTICE ON V ARIOUS PRETEXTS WHICH ARE PART OF RECORD. NOTICES HAS BEEN ISSUED ON MANY OCCASIONS WHICH IS PRESENTED IN A TABULAR FORM AS BELOW. ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 4 OF 19 SL.NO. DATE OF ISSUE OF NOTICE DATE OF HEARING COMMENTS OF POSTAL AUTHORITIES REMARKS 1. 27.11.2015 3.12.2015 NO RESPONSE 2. 3.2.2016 17.2.2016 NOT CLAIMED ON 4.2.2016 & 5.2.2016 3. 10.3.2016 18.3.2016 NOT CLAIMED 11.3.2016. HENCE RETURNED ON 19.3.2016. 4. 7.4.2016 26.4.2016 NOT CLAIMED ON 12.4.2016 & 13.4.2016. HENCE RETURNED ON 20.4.2016 5. 26.4.2016 5.5.2016 REFUSED HENCE RETURNED ON 28.4.2016 THE ADDRESS OF THE APPELLANT WAS VERIFIED FROM THE RECORDS OF THE ASSESSING OFFICER AND IT WAS FOUND THAT THERE WAS N O CHANGE IN THE ADDRESS OF THE APPELLANT. A FINAL OPPORTUNITY WAS G IVEN TO THE APPELLANT BY ASKING THE ASSESSING OFFICER TO GET IT SERVED ON THE APPELLANT. A NOTICE DT.2.6.2016 WAS GIVEN TO THE AS SESSING OFFICER FIXING THE CASE FOR HEARING ON 14.06.2016. AN INSP ECTOR MR. HASEEN TAJ WENT TO THE PREMISE OF THE APPELLANT AND SERVED THE NOTICE. THE REPORT GIVEN BY MR. HASEEN TAJ ITI IS BEING REPRODUCED BELOW: INSPECTOR'S REPORT ON SERVICE OF NOTICES IN THE CAS E OF MR.PETER CADDY AS DIRECTED BY THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2(1) BENGALURU I HAVE TAKEN THE NOTICES OF HEARING ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-11 BENGALURU I N THE CASE OF MR.AMIT CADDY AND MR.PETER CADDY ON 03/06/2016. AS THE ASSESSEE WAS NOT PRESENT IN THE OFFICE AT THE TIME OF SERVING. I ENQUIRED WITH THE OFFICE RECEPTIONIST SHE SAID THAT MR AMIT CADDY HAS NOT COME TO OFFICE FROM ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 5 OF 19 PAST SIX MONTHS AS HE IS NOT KEEPING GOOD HEALTH. L ATER SHE INTRODUCED ONE MR.CHANDRU OFFICE CARETAKER (MOB:-09980506455) WHO TRIED CALLING ASSESSEE BUT COULD NOT REACH AS THE MOBILE WAS SWITCHED OFF. SUBSEQUENTLY HE CALLED UP TO THE ASSESSEE'S AUDITOR MR.ALTAF HUSSAIN (MOB:-984505400) AND LETTER AGREED TO ACCEPT THE NO TICE OF HEARING OF MR. AMIT CADDY AND MR.PETER CADDY ALSO AS THE CASE WAS HANDLED BY THE SAME AUDITOR. HENCE THE NOTICES WERE SERVED IN THE OFFICE WHEREIN MR.CHANDRU RECEIVED THE NOTICES AND GAVE THE ACKNO WLEDGEMENT. THE ORIGINAL NOTICE WITH ACKNOWLEDGMENT ON IT IS SUBMIT TED. DATED: 10/03/2016 (HASSEN TAJ) ITI THUS IT IS APPARENT THAT THE NOTICES ISSUED BY THE CIT(APPEALS) FOR THE DATES OF HEARING WERE RECEIVED UNSERVED WITH THE REASON T HAT THE ASSESSEE DID NOT CLAIM ON FOUR OCCASIONS AND IT WAS RECEIVED ON THE FIFTH OCCASION. THEREAFTER THE NOTICE WAS SERVED THROUGH THE INSPE CTOR WHOSE REPORT ALSO REVEALS THAT THE ASSESSEE WAS AVOIDING THE NOTICE A FTER FILING THE APPEALS BEFORE THE CIT(APPEALS). EVEN OTHERWISE SUBSEQUEN TLY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE CIT (APPEALS) ON 14.6.2016 AND FILED WRITTEN SUBMISSION S WHICH WERE DULY REPRODUCED BY THE CIT (APPEALS) AND AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE THE IMPUGNED ORDERS WER E PASSED. HENCE IT IS MANIFEST FROM THE RECORD THAT SUFFICIENT OPPO RTUNITIES WERE GIVEN BY THE CIT (APPEALS) TO THE ASSESSEE BUT THE CONDUCT OF THE ASSESSEE CLEARLY SHOWS THAT THE ASSESSEE WAS AVOIDI NG THE NOTICES AND WAS NOT SERIOUS IN PRESENTING ITS CASE BEFORE THE C IT (APPEALS). FINALLY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESS EE APPEARED ONLY WHEN THE NOTICE WAS SERVED THROUGH INSPECTOR. THOUGH THE ASSESSEE HAS POINTED OUT THAT A PETITION UNDER SECT ION 154 OF THE ACT HAS BEEN FILED BEFORE THE CIT (APPEALS) FOR SEEKING A FRESH OPPORTUNITY AND THE SAME IS STATED TO BE PENDING ADJUDICATION H OWEVER WE DO NOT FIND IT APPROPRIATE TO COMMENT OR EXPRESS ANY VIEW WHEN THE SAID PETITION IS STILL PENDING UNDER SECTION 154 OF THE ACT FOR ADJUDICATI ON. ACCORDINGLY WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THESE GROUNDS RAISED BY THE ASSESSEE RATHER WE CONCUR WIT H THE VIEW OF THE CIT(A) THAT THE ASSESSEES CONDUCT WAS TO AVOID THE PROCEEDINGS AND TO DELAY THE ADJUDICATION OF THE APPEALS. 7. GROUND NOS.4 TO 6 ARE REGARDING VALIDITY OF PROCEED INGS INITIATED UNDER SECTION 153A OF THE ACT. ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 6 OF 19 8. A SEARCH AND SEIZURE OPERATION UNDER SECTIO N 132 OF THE ACT WAS CONDUCTED IN CASE OF M M PRASANNA KUMAR ON 6.2. 2012. THE ASSESSEE WAS ALSO COVERED BY THE SAID SEARCH CONDUC TED UNDER SECTION 132. DURING THE COURSE OF SEARCH THE CASE O F THE ASSESSEE WAS CENTRALIZED AND SENT TO DCIT CENTRAL CIRCLE B ANGALORE VIDE ORDER OF CIT DT.17.5.2012 TO FACILITATE EFFECTIVE C O-ORDINATION IN THIS CONNECTION. ACCORDINGLY NOTICE UNDER SECTION 153A OF THE ACT DT.28.8.2012 ISSUED AND SERVED ON THE ASSESSEE BY T HE DCIT CENTRAL CIRCLE 2(1) BANGALORE CALLING FOR RETURN OF INCOME . IN RESPONSE TO THE NOTICE UNDER SECTION 153A THE ASSESSEE FILED H IS RETURN OF INCOME AND COPIES OF RETURNS OF INCOME EARLIER FILE D. THE ASSESSING OFFICER CONSEQUENTLY COMPLETED ASSESSMENT UNDER SEC TION 143(3) R.W.S 153A OF THE ACT AND MADE THE ADDITION ON ACCO UNT OF UNEXPLAINED INVESTMENT ON THE BASIS OF MOU BETWEEN MR. SHANTA KUMAR (VENDOR) AND THE ASSESSEE ALONG WITH MR. CHER IAN ABRAHAM (PURCHASER) WHICH WAS FOUND AND SEIZED DURING THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT. THE SAID MOU W AS SEIZED VIDE ANNEXURE A/PC-1/5. EXCEPT FOR THE ASSESSMENT Y EAR 2007- 08 THE ADDITIONS ARE MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED DOCUMENT FOR ALL OTHER ASSESSMENTS. THE A SSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFO RE THE CIT (APPEALS) AND RAISED THE ISSUE OF VALIDITY OF PROCE EDINGS UNDER SECTION 153A OF THE ACT. THE CIT (APPEALS) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND REJECTED THE SAID GR OUND OF VALIDITY OF PROCEEDINGS UNDER SECTION 153A OF THE A CT. 9. BEFORE US THE LEARNED AUTHORISED REPRESEN TATIVE OF THE ASSESSEE HAS SUBMITTED THAT THERE WAS NO INCRIMINATING DOCUM ENT FOUND DURING THE SEARCH UNDER SECTION 132 THEREFORE THE PROCEED INGS UNDER SECTION 153A CANNOT BE INITIATED. FURTHER THE LEARNED AUTHO RISED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE SEARCH WAS C ONDUCTED IN THE CASE OF ONE SRI M M PRASANNA KUMAR AND THERE IS NO SATIS FACTION RECORDED BY THE ASSESSING OFFICER BEFORE ISSUING THE NOTICE UNDER SECTION 153C / 153A OF THE ACT. THEREFORE SHE HAS CONTENDED THAT T HE PROCEEDINGS INITIATED UNDER SECTION 153A ARE MISCONCEIVED AS TH E ASSESSEES CASE DOES NOT FALL UNDER THE PURVIEW OF SECTION 153A OF THE ACT. SHE HAS FURTHER POINTED OUT THAT THE ASSESSING. OFFICER HAS STATED IN THE ASSESSMENT ORDER THAT SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI M M PRASANNA KUMAR AND THEREFORE IN THE ABSENCE OF SEARCH IN THE CASE OF THE ASSESSEE THE PROCEEDINGS UNDER SECTION 153A ARE NOT VALID. FURTHER THE PROCEEDINGS UNDER SECTION 153C ARE ALSO NOT VAL ID FOR WANT OF SATISFACTION RECORDED BY THE ASSESSING OFFICER HAVI NG JURISDICTION OF THE SEARCHED PERSON AND FURTHER BY THE ASSESSING OF FICER HAVING ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 7 OF 19 JURISDICTION OVER THE ASSESSEE. THE LEARNED AUTHORI SED REPRESENTATIVE OF THE ASSESSEE HAS REFERRED TO THE CBDT CIRCULAR NO.24 OF 2015 DT.31.12.2015 AND SUBMITTED THAT THE ASSESSING OFFICER CANNOT INVOKE THE PROVISIONS OF SECTION 153 C IN THE ABSENCE OF SATISFACTION AS CONTEMPLATED AND THERE IS NO MAT ERIAL BROUGHT OUT IN THE ASSESSMENT ORDER TO SHOW THAT THE PROCEEDING S ARE VALIDLY INITIATED IN ACCORDANCE WITH THE CBDT CIRCULAR DT.3 1.12.2015. IN SUPPORT OF HER CONTENTION THE LEARNED AUTHORISED R EPRESENTATIVE HAS RELIED UPON THE DECISION OF DELHI TRIBUNAL IN THE C ASE OF ACIT VS. PACL INDIA LIMITED T.30/CCH 516 (DELHI-TRIB). THE L EARNED AUTHORISED REPRESENTATIVE HAS ALSO RELIED UPON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. LANCY CONSTRUCTIONS 237 TAXMAN 728 AND SUBMITTED THAT NO ADDITION CAN B E MADE IN THE PROCEEDINGS UNDER SECTION 153A/153C WHE N THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. 10. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE ASSESSING OFF ICER HAS DULY RECORDED IN THE ASSESSMENT ORDER THAT MOU AS WELL A S OTHER INCRIMINATING DOCUMENTS WERE FOUND DURING THE SEARC H. FURTHER DURING THE ENQUIRY THE OTHER PARTNER OF THE ASSESSE E IN THE PURCHASE TRANSACTION DENIED THE SIGNATURE ON THE MOU THEREFO RE THE PAYMENT FOR PURCHASE OF THE LAND/PROPERTIES WERE MA DE BY THE ASSESSEE. HE HAS FURTHER CONTENDED THAT WHEN THE VA RIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED DURIN G THE SEARCH DISCLOSING THE INCOME IN THE HAND OF THE ASSESSEE T HEN IT WAS THE BURDEN ON THE ASSESSEE TO PROVE ON RECORD THAT THE PAYMENT FOR PURCHASE OF THE PROPERTIES UNDER THESE SEIZED DOCUM ENTS WERE NOT MADE BY THE ASSESSEE BUT BY SOMEBODY ELSE. IN THE A BSENCE OF SUCH MATERIAL RECORD OR FACT BROUGHT ON RECORD THE DOC UMENT FOUND DURING THE SEARCH REMAIN UNCONTROVERTED AND THEREFO RE THE ASSESSING OFFICER HAS ESTABLISHED THE CASE THAT UNDISCLOSED INCOME IN THE HAND OF THE ASSESSEE WAS DISCLOSED BY THE SE IZED MATERIAL FOUND DURING THE SEARCH. HE HAS RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS CHALLE NGING THE PROCEEDINGS INITIATED UNDER SECTION 153A ON TWO GRO UNDS. FIRSTLY THE SEARCH AND SEIZURE ACTION WAS NOT CONDUCTED IN THE CASE OF THE ASSESSEE AND THEREFORE IN THE ABSENCE OF SATISFACTI ON RECORDED BY THE ASSESSING OFFICER IN THE PROCEEDINGS UNDER SECTION 153A/153C ARE NOT VALID. SECONDLY THE ASSESSEE CHALLENGED THE VA LIDITY OF THE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 8 OF 19 PROCEEDINGS ON THE GROUND THAT NO INCRIMINATING MAT ERIAL BELONGING TO THE ASSESSEE WAS FOUND DURING THE SEARCH AND SEI ZURE ACTION. 12. AS REGARDS THE FIRST CONTENTION OF THE ASSESSE E THAT THE SEARCH WAS NOT CONDUCTED IN THE CASE OF THE ASSESSE E WE FIND THAT THE CIT (APPEALS) HAS VERIFIED THIS FACT FROM THE A SSESSING OFFICER AND AFTER CONSIDERING THE REPLY OF THE ASSESSING OF FICER VIDE LETTER DT.20.06.2016 FOUND THAT AS PER THE ORDER SHEET DT. 22.8.2012 A SEARCH UNDER SECTION 132 WAS INITIATED IN THE CAS E OF THE ASSESSEE AT THE PREMISES NO.859 4 TH A CROSS 11 TH MAIN KORAMANGALA BANGALORE-560 034. THE LEARNED AUTHORISED REPRESENT ATIVE OF THE ASSESSEE HAS NOT DISPUTED THIS FACT RECORDED BY THE CIT (APPEALS) THAT THE SEARCH WAS CONDUCTED AT THE PREM ISES OF THE ASSESSEE AT THE GIVEN ADDRESS. THUS IT IS CLEAR TH E SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE AS WELL AS OT HER PERSONS COVERED UNDER SEARCH. WE FURTHER NOTE THAT THE ASSE SSEE DID NOT RAISE ANY OBJECTION ON THIS POINT DURING THE ASSESSMENT P ROCEEDINGS AND IN RESPONSE TO THE NOTICE ISSUED BY THE ASSESSI NG OFFICER FILED THE RETURN OF INCOME OR COPIES OF THE RETURN OF INC OME EARLIER FILED. THUS THE ASSESSEE ALLOWED THE ASSESSING OFFICER TO COMP LETE THE ASSESSMENT UNDER SECTION 153A R.W.S. 143(3) AND THE REAFTER RAISED THIS OBJECTION BEFORE THE CIT (APPEALS). ONC E THE FACT OF THE INITIATION / CONDUCT OF SEARCH UNDER SECTION 13 2 AT THE PREMISES OF THE ASSESSEE IS NOT DISPUTED THEN WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THIS OBJECTION OF THE ASSESSE E. 13. THEREFORE ONCE SEARCH WAS CONDUCTED IN THE CAS E OF THE ASSESSEE THEN THE SECOND CONTENTION OF THE ASSESSEE HAS NO LEG TO STAND AS FOR INITIATING THE PROCEEDINGS UNDER SECTI ON 153A BECAUSE THERE IS NO REQUIREMENT OF RECORDING ANY SATISFACTI ON OR INCRIMINATING SEIZED MATERIAL. AS PER THE PROVISIONS OF SECTION 132 R.W.S. 153A ONCE A SEARCH AND SEIZURE ACTION IS CAR RIED OUT THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE A SSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WA S MADE. THEREFORE THE ASSESSING OFFICER IS EMPOWERED TO ASS ESS OR REASSESS THE TOTAL INCOME OF THESE SIX YEARS. FOR T HE YEAR THE ASSESSMENT WAS ALREADY COMPLETED ON THE DATE OF SEA RCH THE INCOME HAS TO BE REASSESSED UNDER SECTION 153A WHER EAS THE ASSESSMENT PENDING ON THE DATE OF SEARCH SHALL ABAT E AND THE ASSESSMENT UNDER SECTION 153A WILL BE CONSIDERED AS A REGULAR ASSESSMENT. HENCE FOR INITIATING THE PROCEEDINGS UN DER SECTION ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 9 OF 19 153A THE ONLY REQUIREMENT IS A SEARCH AND SEIZURE A CTION UNDER SECTION 132 OF THE ACT CONDUCTED IN THE CASE OF THE ASSESSEE. THE SEIZURE OF INCRIMINATING MATERIAL IS NOT AT ALL REL EVANT SO FAR AS THE INITIATION OF PROCEEDINGS UNDER SECTION 153A AR E CONCERNED. HOWEVER IN THE CASE OF REASSESSMENT OF THOSE ASSESS MENT WHETHER THE ASSESSMENT WAS ALREADY COMPLETED ON THE DATE OF 'SEARCH . THE ASSESSING OFFICER CANNOT REASSESS THE INCOME BY MAKING ANY ADDITION AS ASSESSED IN THE ORIGINAL ASSESSMENT WIT HOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH WHIC H UNEARTH UNDISCLOSED INCOME OF THE ASSESSEE. HENCE THE RELEV ANCE OF THE INCRIMINATING MATERIAL IS ONLY FOR REASSESSMENT FRA MED UNDER SECTION 153A IN RESPECT OF THOSE ASSESSMENT YEARS W HICH WERE ALREADY COMPLETED ON THE DATE OF SEARCH. AS FAR AS THE ASSESSMENT UNDER SECTION 153A IN RESPECT OF THE YEAR(SUPRA)) T HE ASSESSMENT GOT ABATED DUE TO THE SEARCH AND SEIZURE ACTION UND ER SECTION 132 THE PROCEEDINGS UNDER SECTION 153A WOULD BE IN THE NATURE OF REGULAR ASSESSMENT AND THEREFORE THE EXISTENCE OF I NCRIMINATING MATERIAL IS NOT AT ALL RELEVANT. 14. IN THE CASE BEFORE US THE ASSESSING OFFICER HA S CLEARLY RECORDED IN THE ASSESSMENT ORDER THAT AN MOU DT.18. 01.2008 WAS FOUND AND SEIZED WHICH REVEALS THAT THE ASSESSEE AL ONG WITH ONE MR. CHERIAN ABRAHAM PURCHASED THE PROPERTY FROM MR. SHANTA KUMAR FOR A CONSIDERATION OF RS.8 75 00 000. OUT OF WHICH A SUM OF RS.2 75 00 000 WAS PAID AT THE TIME OF MOU. THER EFORE THE ASSESSING OFFICER HAS CONSIDERED THE SAID AMOUNT OF RS.2 75 00 000 AS UNEXPLAINED INVESTMENT OF THE ASSESSEE FOR THE A SSESSMENT YEAR 2008- 09. THE ASSESSEE HAS NOT DISPUTED THE SIGNING OF THE SAID MOU AND THE PAYMENT OF RS.2.75 CRORES AT THE TIME OF MOU. HOWE VER THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE ENTIRE PAYMENT WAS MADE BY ANOTHER PARTNER SHRI CHERIAN AB RAHAM AND NOT BY HIM. THE ASSESSING OFFICER RECORDED THE STAT EMENT OF SHRI CHERIAN ABRAHAM WHO HAS EVEN REFUSED HIS SIGNATURE TO THE MOU AND THEREFORE THE CLAIM OF THE ASSESSEE THAT PAYMEN TS WERE MADE BY SHRI CHERIAN ABRAHAM WAS PATENTLY DENIED BY THE SAID PERSON. SINCE THE DOCUMENT WAS FOUND AT THE PREMISES OF THE ASSESSEE THEREFORE THE ASSESSING OFFICER CONSIDERED THE ENT IRE INVESTMENT BY THE ASSESSEE AND ACCORDINGLY MADE THE ADDITION. IN VIEW OF THE ABOVE FACT WHEN THE MOU IS NOT IN DISPUTE THEN THE CLAIM AND STAND OF THE ASSESSEE FALL FLAT THAT THERE WAS NO INCRIMINAT ING DOCUMENT FOUND OR SEIZED DURING THE SEARCH. 15. SIMILARLY IN OTHER ASSESSMENT YEARS THE ASSES SING OFFICER HAS MADE THE ADDITION ON THE BASIS OF THE SEIZED DO CUMENTS THEREFORE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 10 OF 19 WE DO NOT FIND ANY SUBSTANCE IN THE CONTENTION OF T HE ASSESSEE AGAINST THE VALIDITY OF INITIATION OF PROCEEDINGS UNDER SEC TION 153A ON THE GROUND THAT NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE ACTION. THE INITIATION OF PROCE EDINGS UNDER SECTION 153A IS MANDATORY ONCE A SEARCH AND SEIZURE ACTION IS CARRIED OUT UNDER SECTION 132 AND THEREFORE EVEN IF THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH TO I NDICATE ANY UNDISCLOSED INCOME OR INCOME ESCAPED ASSESSMENT THE ASSESSING OFFICER IS BOUND TO PROCEED UNDER SECTION 153A FOR ALL SIX YEARS. THE ONLY DIFFERENCE IS THAT THOSE ASSESSMENT YEARS WHICH ARE FALLING IN THE CATEGORY OF REASSESSMENT DUE TO THE REASON T HAT THE ASSESSMENT WAS ALREADY COMPLETED ON THE DATE OF INI TIATION OF SEARCH UNDER SECTION 132 OF THE ACT THE INCRIMINATING MATE RIAL IS REQUIRED FOR MAKING ADDITION / REASSESSMENT. THE DECISIONS R ELIED UPON BY THE ASSESSEE ARE ALL ON THE POINT THAT THE ASSESSIN G OFFICER CANNOT MAKE AN ADDITION IN THE REASSESSMENT PROCEEDINGS UN DER SECTION 153A / 153C OF THE ACT IN THE ABSENCE OF INCRIMINAT ING MATERIAL DISCLOSING THE INCOME IN THE HAND OF THE ASSESSEE. THEREFORE THOSE DECISIONS ARE NOT RELEVANT ON THE POINT OF VALIDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT. HENCE W E DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ACTION OF THE ASSESS ING OFFICER IN INITIATING THE PROCEEDINGS UNDER SECTION 153A AND C ONSEQUENTLY WE UPHOLD THE IMPUGNED ORDER OF CIT(APPEALS) QUA TH IS ISSUE. 16. GROUND NOS.7 TO 12 ARE REGARDING THE ADDITIONS/REASSESSMENTS MADE BY THE ASSESSING OFFIC ER. 17. WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTATIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CON SIDERED THE RELEVANT MATERIAL ON RECORD. THE ONLY SUBMISSION MA DE BEFORE US ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE WAS NOT GIVEN A PROPER OPPORTUNITY BY THE CIT (APPEALS) TO PRESENT THE CAS E AND MADE THE SUBMISSION ON THE MERITS OF THE ISSUE. THE CIT (APP EALS) HAS CONSIDERED ONLY THE SUBMISSIONS MADE BY THE ASSESSE E ON THE LEGAL OBJECTION. IT WAS ALSO CONTENDED THAT THE ASSESSEE SOUGHT ANOTHER OPPORTUNITY OF PRESENTING THE CASE ON MERITS WHICH WAS NOT GRANTED BY THE CIT (APPEALS). THEREFORE THE ASSESSEE FILED A PETITION UNDER SECTION 154 OF THE ACT WHICH IS PENDING ADJUDICATIO N BEFORE THE CIT (APPEALS). 18. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESE NTATIVE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEES CONDUCT WAS NON-CO-OPERATIVE DURING THE ASSESSMENT ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 11 OF 19 PROCEEDINGS AS WELL AS THE PROCEEDINGS BEFORE THE C IT(A). IT IS APPARENT FROM THE RECORD THAT DESPITE THE SUFFICIENT OPPORTU NITIES THE ASSESSEE DID NOT RESPOND TO THE NOTICES ISSUED BY THE CIT (APPEA LS). THE ASSESSING OFFICER HAS ALSO RECORDED IN THE ASSESSMENT ORDER T HAT THE ASSESSEE DID NOT FILE THE REQUISITE RECORD FOR EXAMINATION OF TH E ASSESSING OFFICER. HENCE THE ASSESSEE ITSELF WAS AVOIDING PROCEEDINGS BEFORE THE AUTHORITIES BELOW WITH THE MOTIVE TO DELAY THE PROCEEDINGS. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. WE HAVE EARLIER CONSID ERED THIS POINT WHILE DEALING WITH THE GROUND NOS.1 TO 3 AND FOUND THAT T HE CIT (APPEARS) GRANTED MORE THAN SUFFICIENT OPPORTUNITIE S TO THE ASSESSEE HOWEVER THE CONDUCT OF THE ASSESSEE IS MAN IFEST FROM THE FACT THAT ON FIVE OCCASIONS THE ASSESSEE AVOIDE D THE SERVICE OF THE NOTICES ISSUED BY THE CIT (APPEALS) BY NOT CLAI MING AS WELL AS REFUSING THE SAME. FINALLY THE NOTICE WAS EFFECTED THROUGH THE INCOME TAX INSPECTOR WHO HAS ALSO GIVEN ITS REPORT THAT THE ASSESSEE EVEN REFUSE TO GIVE THE ACKNOWLEDGEMENT OF THE SERVICE OF THE NOTICE. THEREFORE IN VIEW OF THE FA CT THAT THE ASSESSEE'S CONDUCT WAS NON-CO-OPERATIVE AND CAUSING DELAY IN THE PROCEEDINGS THE ASSESSEE HAS FAILED TO MAKE OUT THE CAUSE THAT THERE WAS A VIOLATION OF PRINCIPLE OF NATURAL JUSTI CE. APART FROM SEEKING ONE MORE OPPORTUNITY OF BEING HEARD BEFORE THE CIT(A) THE ASSESSEE HAS NOT PRODUCED BEFORE US ANY MATERIA L RECORD OR FACTS TO CONTROVERT THE FINDINGS OF THE ASSESSING O FFICER ON MERITS OF THE ADDITION EXCEPT A COPY OF MOU DT. 7.11.2011 WHICH WAS NOT EITHER CLAIMED OR FILED BEFORE THE AUTHORITIES BELO W. EVEN OTHERWISE WHEN THE ASSESSEE HAS ALREADY FILED A PET ITION UNDER SECTION 154 WHICH IS PENDING ADJUDICATION THEN IT I S UP TO THE WISDOM OF THE CIT(APPEALS) TO CONSIDER THE PLEA OF THE ASSESSEE AS MADE IN THE PETITION FILED UNDER SECTION 154. WE M AKE IT CLEAR THAT OUR OBSERVATION IN THE PRESENT ORDER SHALL HAVE NO BEARING ON THE PETITION FILED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT. 20. SO FAR AS THE ASSESSMENT YEAR 2007-08 IS CONCER NED SINCE THERE IS NO ADDITION BY THE ASSESSING OFFICER THEREFORE THERE IS NO GRIEVANCE OF THE ASSESSEE ON MERITS. 21. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE DISMISSED. 3. IN THE MEANWHILE THE PETITION FILED BY THE ASSESSEE U/S 154 OF THE ACT WERE PENDING BEFORE THE CIT(A) HE DISPOSED OF THE PETITION FILED U/S 154 OF THE ACT FOR THESE ASSESSMENT YEARS BY DELETING THE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 12 OF 19 ADDITIONS MADE BY A.O. IN ASSESSMENT YEARS 2008-09 2009-10 2010-11 & 2012-13. AGAINST THIS THE REVENUE IS IN APPEAL BEFORE US BY WAY OF FOLLOWING GROUNDS AND THERE IS ONLY CHANG E IN FIGURES IN RESPECT OF EACH ASSESSMENT YEAR: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE ORDER P ASSED BY THE CIT(A) U/S 154 OF THE IT ACT IS BEYOND JURISDICTION AS THE CIT(A) HAS RESORTED TO REVIEW OF THE EARLIER APPELLATE ORD ER IN THE GARB OF RECTIFICATION. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT (A) EXCEEDED HIS JURISDICTION BY DECIDING THE ISSUES RELATING TO ADDITIONS MADE IN ASSESSMENT ORDER DESPITE THE FACT THAT THE APPEAL F ILED BY THE ASSESSEE AGAINST THE EARLIER APPELLATE ORDER UPHOLD ING THE ADDITIONS HAD BEEN ALREADY DISMISSED BY THE ITAT VIDE ORDER D ATED 14/07/2017. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT (A) ERRED IN ADMITTING THE MISC. PETITION FILED U/S 154 BY THE A SSESSEE IGNORING THE FACT THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AS THE EARLIER CIT(A) HAD FULLY APPLIED HIS MIND AND HAD P ASSED SPEAKING ORDER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES O F THE CASE WHICH REMAINED UNCHANGED EVEN AT THE TIME OF DISPOS ING OF 154 PETITION. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT (A) ERRED IN IGNORING THE FACT THAT THE CONTENTS OF MOU WERE ALSO EXAMINED BY THE EARLIER CIT(A) IN HIS ORDER DATED 25/06/2016 AND AS SUCH THERE WAS NO MISTAKE APPARENT FROM THE RECORD AND H ENCE ORDER PASSED U/S 154 RWS 250(1) BY THE CIT(A) AMOUNTS TO RE- ADJUDICATION. 4. ASSESSEE FILED C.O. FOR THE ASSESSMENT YEARS 2008-0 9 2009- 10 2010-11 & 2012-13 SUPPORTING ORDER OF CIT(A) BY WAY OF COMMON GROUNDS AS FOLLOWS: ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 13 OF 19 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORD ER OF THE CIT(A) PASSED U/S 154 OF THE ACT IS CORRECT AND THE SAME D OES NOT REQUIRE ANY INTERFERENCE. 2. THE LD. CIT(A) HAD CONSIDERED THE PLEA MADE BY THE RESPONDENT AND ALSO SUBMISSIONS AND EVIDENCE FURNISHED APPRECIATE D THAT THE IMPUGNED ADDITIONS WERE UNCALLED FOR. THUS THE AD DITIONS WERE DELETED AS PER THE MATERIAL AVAILABLE ON THE RECORD AND NO INTERFERENCE IS CALLED FOR. 3. THE LEARNED CIT(A) HAS APPRECIATED THAT THE TRANSAC TIONS WERE GENUINE AND THE MOU FILED WAS ALSO EXAMINED AND WHI CH WERE FULLY SUPPORTED BY DOCUMENTS AND FINANCIAL TRANSACTIONS A ND ACCORDINGLY HE ACCEPTED THE EXPLANATION OFFERED BY THE RESPONDE NT AND EVIDENCE PROVIDED BY THE RESPONDENT AND DELETED THE IMPUGNED ADDITION. 4. THE LD. CIT(A) APPRECIATED THAT THE INVESTMENT WAS MADE AMOUNTING TO RS.2 75 00 000/- BY MR. CHERIYAN AND NOT BY THE RESPONDENT AFTER CONSIDERING THE ALL THE DOCUMENTARY EVIDENCES FILED BY THE RESPONDENT. 5. WITHOUT PREJUDICE THE ADDITION MADE BY THE A.O. IS UNCALLED FOR AND THE OPPORTUNITY TO CROSS-EXAMINE OF MR. CHERIAN WAS NOT GIVEN TO THE RESPONDENT. ACCORDINGLY THE CIT(A) HAS RIGHTLY DE LETED THE ADDITION. 6. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL M AY BE ALLOWED. 5. FURTHER CIT(A) IN ASSESSMENT YEAR 2012-13 SUO-MOTO RECALLED HIS EARLIER ORDER DATED 29.12.2017 BY HIS ORDER DAT ED 29.6.2018 BY OBSERVING THAT HE HAD MADE A MISTAKE IN GOING THROU GH THE BINDING ORDER OF THE TRIBUNAL DATED 14.7.2017. ACCORDINGLY HE CONFIRMED THE ADDITIONS MADE BY A.O. IN HIS ORDER FOR ASSESSMENT YEAR 2012-13 VIDE ORDER DATED 29.6.2018. AGAINST THIS ASSESSEE ONCE AGAIN FILED APPEAL BEFORE US. SINCE THIS ISSUE IN ALL THE APPE ALS ARE COMMON IN NATURE WE HEARD ALL THESE APPEALS COLLECTIVELY AND DISPOSED OF THESE APPEALS BY WAY OF THIS COMMON ORDER. ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 14 OF 19 6. THE CONTENTION OF THE LD. D.R. IS THAT ASSESSEE IN EARLIER OCCASION CAME WITH AN APPEAL BEFORE THIS TRIBUNAL. THE TRIBUNAL VIDE ORDER DATED 14.7.2017 DECIDED THE ISSUE BOTH ON LEG ALLY AND ON MERIT OF THE ADDITIONS AGAINST THE ASSESSEE. AT THAT POI NT OF TIME THE ASSESSEES PETITION FILED U/S 154 OF THE ACT WAS PE NDING BEFORE CIT(A). THE LD. CIT(A) OUGHT NOT TO HAVE ENTERTAINED SUCH A PPLICATION UNDER THE PROVISION OF SECTION 154 OF THE ACT AS THERE WA S NO ERROR IN HIS EARLIER ORDER SO AS TO RECTIFY THE SAME. ACCORDING TO THE LD D.R. THE CIT(A) ON EARLIER OCCASION RIGHTLY DEALT ALL THE IS SUES AND DECIDED THE SAME AGAINST THE ASSESSEE. NOW CONSIDERING THE SAM E ISSUE BY CIT(A) IN THE PROCEEDINGS U/S 154 OF THE ACT WHICH AMOUNT TO REVIEW OF EARLIER ORDER OF HIS OWN WHICH IS NOT PERMITTED UN DER PROVISIONS OF SECTION 154 OF THE ACT. HE SUBMITTED THAT THERE IS NO ERROR WHICH PRIMA FACIE ON THE RECORD SO AS TO RECTIFY THE SAME . 7. ON THE OTHER HAND LD. A.R. SUBMITTED THAT THERE WA S A PENDING PETITION FILED U/S 154 OF THE ACT BEFORE CI T(A) AT THE TIME OF ADJUDICATION OF THE APPEALS BY TRIBUNAL VIDE ORDER DATED 14.7.2017. THIS WAS CLEARLY BROUGHT TO THE NOTICE OF THE TRIBU NAL AT THE TIME OF HEARING OF THE APPEALS BY THE TRIBUNAL AND THE TRIB UNAL RIGHTLY OBSERVED IN ITS ORDER IN PARA 19 AT PAGE 21 AS FOLL OWS: EVEN OTHERWISE WHEN THE ASSESSEE HAS ALREADY FILED A PETITION UNDER SECTION 154 WHICH IS PENDING ADJUDICATION THEN IT I S UP TO THE WISDOM OF THE CIT(A) TO CONSIDER THE PLEA OF THE ASSESSEE AS MADE IN THE PETITION FILED UNDER SECTION 154. WE MAKE IT CLEAR THAT OUR OBSERVATION IN THE PRESENT ORDER SHALL HAVE NO BEARING ON THE PETITION FILED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT. 8. FURTHER IT WAS SUBMITTED THAT THE CIT(A) NOT COMMI TTED ANY ERROR IN ENTERTAINING THE CLAIM OF THE ASSESSEE BY WAY OF PROCEEDINGS U/S 154 OF THE ACT. SINCE EARLIER ORDER OF THE CIT (A) IS EX-PARTE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 15 OF 19 WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE AS SESSEE ACT IN ALL THESE ASSESSMENT YEARS. SHE SUPPORTED THE ORDER OF CIT(A). 9. WE HAVE HEARD THE PARTIES PERUSED THE MATERIALS A VAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN THESE ASSESSMENT YEARS THE ASSESSMENT TAKEN UP BY ASSESS ING OFFICER CONSEQUENT TO SEARCH ACTION U/S 132 OF THE ACT IN T HE CASE OF M.M. PRASANNA KUMARA AND OTHERS ON 6.2.2012. THE ASSESS EE ALSO COVERED U/S 132 R.W.S. 153A OF THE ACT. CONSEQUENT TO SEARCH ACTION A NOTICE WAS ISSUED U/S 153A OF THE ACT AND ASSESSM ENTS WERE COMPLETED U/S 143(3) R.W.S. 153A OF THE ACT WHEREI N THE A.O. MADE THE ADDITION AS FOLLOWS: SUBSTANTIVE ASSESSMENT YEAR HEAD AMOUNT (RS.) 2008 - 09 UNEXPLAINED INVESTMENT RS.2.75 CRORES 2009 - 10 UNEXPLAINED INVESTMENT RS.6.90 CRORES 2010 - 11 UNEXPLAINED INVESTMENT RS.5.59 CRORES 2012 - 13 UNEXPLAINED INVESTMENT RS.12.10 CRORES 10. THE ASSESSEE CHALLENGED THE MERIT OF THE ADDITIONS AND ALSO VALIDITY OF THE ASSESSMENT PASSED U/S 153A OF THE A CT BEFORE CIT(A). BEFORE CIT(A) THE ASSESSEE HAS NOT COOPERATED AND A S SUCH THE CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE BOTH VALIDIT Y OF THE ASSESSMENT U/S 153A OF THE ACT AS WELL AS MERIT OF THE ADDITIONS AND SUSTAINED THE ORDER OF THE A.O. ONCE AGAIN THE ASS ESSEE WENT IN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL ALSO UPHE LD THE ORDER OF THE LOWER AUTHORITIES VIDE ORDER CITED (SUPRA). IN THE FIRST ROUND AT THE TIME OF HEARING BEFORE THE TRIBUNAL THE ASSESSEE M ADE A POINT THAT THE ASSESSEES PETITION FILED U/S 154 OF THE ACT IN THESE ASSESSMENT YEARS WERE PENDING BEFORE THE CIT(A). THE TRIBUNAL OBSERVED THAT OBSERVATIONS OF THE TRIBUNAL SHALL NOT HAVE ANY BEA RING IN DECIDING THE PENDING PETITIONS FILED BY ASSESSEE U/S 154 OF THE ACT. IN THE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 16 OF 19 MEANWHILE THE CIT(A) IN ALL THESE ASSESSMENT YEARS DECIDED THE PETITION FILED U/S 154 OF THE ACT IN FAVOUR OF THE ASSESSEE DELETING ADDITION MADE TOWARDS UNEXPLAINED INVESTMENT IN ALL THE ASSESSMENT YEARS I.E. 2008-09 200910 2010-11 & 2012-13. HOW EVER THE CIT(A) ONCE AGAIN RECALLED HIS OWN ORDER FOR ASSESSMENT YE AR 2012-13 VIDE ORDER DATED 29.6.2018 STATING THAT THERE WAS INADVE RTENT ERROR IN CONSIDERING THE FINDING OF THE TRIBUNAL IN PASSING THE EARLIER ORDER DATED 29.12.2017 FOR A.Y. 2012-13. NOW THE CONTENT ION OF THE LD. D.R. IS THAT THE CIT(A) HAS NO POWER U/S 154 OF THE ACT SO AS TO RECALL THE HIS OWN ORDER FOR ALL THESE ASSESSMENT YEARS U/ S 154 OF THE ACT AND HE RELIED ON THE JUDGEMENT OF HONBLE SUPREME C OURT IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD. 228 ITR 463 AND AL SO MEPCO INDUSTRIES LTD. VS. CIT 319 ITR 409 (SC) AND IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS 82 ITR 50 (SC) AN D ALSO ORDER OF THE TRIBUNAL IN THE CASE OF CHANDIGARH BENCH IN ITA NO.877/CHD/2011 DATED 8.11.2011 IN THE CASE OF SHRI HARINDER SINGH VS. ITO. 11. AFTER GOING THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE OPINION THAT THE CIT(A) ON EARLIER OC CASION IN FIRST ROUND TAKEN INTO ALL THE RELEVANT FACTS AND CONSIDERED TH E ARGUMENT OF THE ASSESSEE AND CAME TO THE CONCLUSION THAT THERE WAS NO NECESSITY OF INTERFERENCE INTO THE ORDER OF THE A.O. IN ALL THE SE ASSESSMENT YEARS AND REJECTED THE CLAIM OF THE ASSESSEE. THIS WAS A LSO CONFIRMED BY THE TRIBUNAL IN ITS ORDER DATED 14.7.2017 IN PARA 1 9 IN PAGE 21 OBSERVING THAT ASSESSEE APART FROM SEEKING ONE MORE OPPORTUNITY OF BEING HEARD BEFORE CIT(A) IT HAS NOT PRODUCED ANY MATERIAL RECORD OR FACTS TO CONTROVERT THE FINDING OF THE A.O. ON M ERITS OF THE ADDITION EXCEPT THE COPY OF THE MOU DATED 7.11.2011 WHICH WA S NOT EITHER CLAIMED OR FILED BEFORE THE AUTHORITIES BELOW. IN SUCH CIRCUMSTANCES ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 17 OF 19 THE CIT(A) NOT JUSTIFIED IN ALLOWING THE CLAIM OF T HE ASSESSEE IN DELETING THE ADDITION MADE BY A.O. TOWARDS UNEXPLAI NED INVESTMENT IN THESE ASSESSMENT YEARS UNDER THE PROVISIONS OF S ECTION 154 OF THE ACT. IN VIEW OF THIS FINDING IT IS OBSERVED THAT THE MERIT OF THE ADDITIONS MADE BY THE A.O. WAS REJECTED BY THE TRIB UNAL BY A FINDING THAT THERE WAS NO SUFFICIENT EVIDENCE TO SUPPORT TH E CLAIM OF THE ASSESSEE. MERELY CIT(A)/TRIBUNAL NOT ALLOWED THE C LAIM OF THE ASSESSEE ON MERIT AND IN THE OPINION OF THE ASSESSE E IT WAS WRONG THAT WILL NOT ENTAIL THE ASSESSEE TO FORM A GROUND AND ADJUDICATE BEFORE THE CIT(A) BY HIMSELF OF PROCEEDINGS U/S 154 OF THE ACT. UNLESS IT CAN BE SAID THAT THERE IS A BLATANT AND APPARENT MISTAKE THAT HAS CREPT IN THE ORDER OF THE CIT(A) PURELY BASED ON M ATERIAL FACTS ON RECORD. IN THE GARB OF PROCEEDINGS U/S 154 OF THE ACT IT WAS NOT OPEN TO THE ASSESSEE TO SEEK REOPENING OF THE ORDER OF T HE CIT(A) BY RE- ARGUING WHOLE MATTER ON MERIT. UNLESS THERE IS A M ANIFEST ERROR WHICH IS OBVIOUS CLEAR AND EVIDENT THE PROVISIONS U/S 154 OF THE ACT CANNOT BE RESORTED TO. WHAT CAN BE RECTIFIED U/S 1 54 OF THE ACT IS A MISTAKE WHICH IS APPARENT AND BLATANT. THE MISTAK E HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESS ARY. WHAT IS NOT PERMITTED TO BE DONE BY THE STATUTE HAVING BEEN DEL IBERATELY OMITTED TO CONFER REVIEW JURISDICTION ON THE CIT(A) CANNOT BE INDIRECTLY ACHIEVED BY RECOURSE TO RECTIFICATION PROCEEDINGS C ONTAINS IN SECTION 154 OF THE ACT. WHEN ERROR WAS FAR FROM SELF-EVIDE NT IT CEASES TO BE APPARENT ERROR. THE SO CALLED INACCURACIES OR WRON G RECORDING OF THE FACTS AS ALLEGED WERE NOT BLATANT MISTAKES WHICH CO NSTITUTE SINA-QUA- NON FOR EXERCISE OF POWER U/S 154 OF THE ACT BY CIT (A). FURTHER IT IS SEEN THAT THE POWERS CONFERRED BY THE STATUTE U/S 1 54 OF THE ACT ON THE CIT(A) ARE VERY LIMITED AND ARE CIRCUMSCRIBED B Y THE RESTRICTIONS MENTIONED THEREIN. IN THE CASE ON HAND ON EARLIER OCCASION THE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 18 OF 19 CIT(A) HAS PASSED HIS ORDER PURELY BASED ON FACTS A ND MATERIAL PRODUCED BEFORE US WHICH ALONE FORMS BASIS FOR THE CIT(A) TO DECIDE THE ISSUE WHERE THE DECISION OF THE CIT(A) IS RIGH T OR WRONG IS A DIFFERENT ISSUE WHICH CANNOT BE ADJUDICATED BY WAY OF PROCEEDINGS U/S 154 OF THE ACT. HOWEVER THE FACTS REMAIN THAT THE CIT(A) AFTER DULY CONSIDERING ALL ASPECTS AND APPLYING HIS MIND HAS TAKEN CONCLUSIVE AND CONSCIOUS VIEW THOUGH IN THE OPINION OF THE ASSESSEE IS WRONG CANNOT BE SAID TO BE MISTAKE APPARENT FRO M RECORD SINCE THE SAID VIEW HAS BEEN ARRIVED AT AFTER DUE APPLICA TION OF MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RELEVAN T MATERIAL ON RECORD. MORE SO THE VIEW OF THE CIT(A) WAS CONFIR MED BY THE TRIBUNAL VIDE THEIR ORDER DATED 14.7.2017. 12. FURTHER IT IS WELL SETTLED THAT A MISTAKE APPARENT ON RECORD MUST BE AN OBVIOUS AND BLATANT MISTAKE AND NOT SOME THING WHICH COULD BE ARRIVED BY A LONG DRAWN PROCESS OF REASONI NG ON ACCOUNTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. IN THE PRESENT CASE THE CIT(A) HAVE CATEGORICALLY DECIDED THE ISSUE AGA INST THE ASSESSEE IN FIRST ROUND THAT ALSO CONFIRMED BY THE TRIBUNAL AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD AND APPLYING THE MIND SUCH FINDING OF THE CIT(A) CANNOT BE CHALLENGED BY WAY OF PROCEE DINGS U/S 154 OF THE ACT. ENTERTAINING THE APPLICATION FILED BY ASS ESSEE U/S 154 OF THE ACT WOULD ONLY AMOUNTING TO REVIEW OF THE EARLIER O RDER OF THE CIT(A) FOR WHICH THE CIT(A) HAS NO POWER AS DISCUSSED EARL IER. IN CASE THE ASSESSEE IS AGGRIEVED AGAINST THE DECISION OF THE C IT(A) THE REMEDY DE-FACTO DOES NOT ALLOW BY WAY OF PROCEEDINGS U/S 1 54 OF THE ACT BEFORE CIT(A) TO READDRESS THE GRIEVANCE OF THE ASS ESSEE BUT ELSEWHERE. IN VIEW OF THE ABOVE DISCUSSION WE ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE CIT(A) WHICH CAN BE LEGALLY RECTIFIED BY WAY OF PROCEEDING S U/S 154 OF THE ITA NOS.1630 TO 1633/BANG/2018 C.O. NOS.112 TO 115/BANG/2018 ITANO.2389/BANG/2018 SHRI PETER CADDY BANGALORE PAGE 19 OF 19 ACT BY THE ASSESSEE. THEREFORE WE ARE UNABLE TO A GREE WITH THE FINDING OF THE CIT(A) IN HIS PROCEEDINGS U/S 154 OF THE ACT IN ALL THE A.YS. THE GROUNDS RAISED BY REVENUE IN ITA NOS.163 0 TO 1633/BANG/2018 ARE ALLOWED. 13. IN THE RESULT ALL THE APPEALS FILED BY THE REVENUE IN ITA NOS.1630 TO 1633/BANG/2018 ARE ALLOWED. SINCE WE H AVE ALLOWED THE APPEALS OF THE REVENUE THE COS FILED B Y THE ASSESSEE IN C.O. NOS.112 TO 115/BANG/2018 ARE DISMISSED AS I NFRUCTUOUS. THE APPEAL FILED BY ASSESSEE IN ITA NO.2389/BANG/20 18 IS ALSO DISMISSED AS INFRUCTUOUS SINCE WE HAVE ALLOWED TH E APPEAL OF THE REVENUE IN SAME ASSESSMENT YEAR 2012-13 IN ITA NO.1633/BANG/2018 ON SAME ISSUE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MAR 2021 SD/- (N.V. VASUDEVAN) VICE PRESIDENT SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER BANGALORE DATED 3 RD MAR 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT BANGALORE.