Param Dairy Ltd., New Delhi v. ACIT, Central Circle- 14, New Delhi

ITA 3988/DEL/2019 | 2008-2009
Pronouncement Date: 19-11-2019 | Result: Allowed

Appeal Details

RSA Number 398820114 RSA 2019
Assessee PAN AACCP8066C
Bench Delhi
Appeal Number ITA 3988/DEL/2019
Duration Of Justice 6 month(s) 13 day(s)
Appellant Param Dairy Ltd., New Delhi
Respondent ACIT, Central Circle- 14, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 19-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 19-11-2019
Assessment Year 2008-2009
Appeal Filed On 06-05-2019
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI F BEN CH NEW DELHI BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE JUDICIAL M EMBER ITA NOS. 3988 TO 3994/DEL/2019 [A.YS 2009-10 TO 2014-15] PARAM DAIRY LTD VS. THE A.C.I.T 11/5B 2 ND FLOOR PARAM TOWER CENTRAL CIRCLE 14 PUSA ROAD NEW DELHI NEW DELHI PAN: AACCP 8066 C ITA NOS. 5023 TO 5027/DEL/2019 [A.YS 2008-09 TO 2012-13] THE DY.C.I.T VS. PARAM DAIRY LTD CENTRAL CIRCLE 14 11/5B 2 ND FLOOR PARAM TOWER PUSA ROAD NEW DELHI NEW DELHI PAN: AACCP 8066 C (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI SHRI AJAY VOHRA SR. ADV SHRI ROHIT JAIN ADV SHRI DEEPESH JAIN CA SHRI DIVYAM MITTAL CA DEPARTMENT BY : SHRI SULEKHA VERMA CIT- DR DATE OF HEARING : 07.11.2019 DATE OF PRONOUNCEMENT : .11.2019 2 ORDER PER N.K. BILLAIYA ACCOUNTANT MEMBER THE ABOVE CAPTIONED BUNCH OF CROSS APPEALS BY THE A SSESSEE AND REVENUE ARE PREFERRED AGAINST THE SEPARATE ORDERS O F THE COMMISSIONER OF INCOME TAX [APPEALS] - XXVI NEW DELHI PERTAININ G TO ASSESSMENT YEARS 2008-09 AND 2014-15. SINCE ALL THESE APPEALS PERTAINING TO SAME ASSESSEE WERE HEARD TOGETHER AND INVOLVE COMMON ISS UES THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A MANUFACTURER AND EXPORTER OF MILK AND MILK PRODUCTS LIKE SKIMMED MILK POWDER FULL CREAMD MILK POWDER DAIRY WHITENE R MILK FAT PANEER LIQUID MILK AND DESI GHEE. THE ASSESSEE SU PPLIES ITS PRODUCTS UNDER THE BRAND NAME OF PARAM PREMIUM. 3. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IN COME-TAX ACT 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] WAS CAR RIED OUT IN THE CASE OF PARAM AND RAMA GROUP ON 28.02.2014. PURSUANT TO THE SEARCH 3 NOTICE U/S 153A OF THE ACT WAS ISSUED AND SERVED UP ON THE ASSESSEE ASKING THE ASSESSEE TO FILE RETURN OF INCOME. 4. IN ITS REPLY THE ASSESSEE STATED THAT THE RETUR N OF INCOME ALREADY FILED BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT. 5. PURSUANT TO THE RESPONSE OF THE ASSESSEE ASSESS MENT PROCEEDINGS WERE COMMENCED. ASSESSMENT ORDER WAS FRAMED U/S 14 3(3) R.W.S 153A OF THE ACT AFTER MAKING SEVERAL ADDITIONS WHICH AR E AS UNDER: A) ADDITION ON ACCOUNT OF TREATING THE PURCHASE OF MILK IN CASH UNDER THE HEAD MILK PURCHASES TANKI; B) DISALLOWANCE MADE U/S 37 OF THE ACT TOWARDS PAYM ENT OF COMMISSION; C) DISALLOWANCE ON ACCOUNT OF ALLEGED UNEXPLAINED B ALANCES OF SUNDRY CREDITORS ALLEGING THE SAME TO BE SUPPRESSED PROFIT ELEMENT; AND D) ADDITION ON ACCOUNT OF RECHARACTERIZING AGRICULT URAL INCOME AS INCOME FROM OTHER SOURCES. 4 6. IN RESPECT OF ALL THESE ADDITIONS WHEREVER PART RELIEF IS GIVEN BY THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 7. THE REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH THE CASE RECORDS CAREFULLY PERUSED AND WITH THE ASSISTA NCE OF THE LD. COUNSEL WE HAVE CONSIDERED THE DOCUMENTARY EVIDENC ES BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN LIGHT OF RULE 1 8(6) OF ITAT RULES. 8. THE FIRST CHALLENGE RELATES TO THE VALIDITY OF T HE ASSESSMENT ORDER FRAMED U/S 143(3) R.W.S 153A OF THE ACT. 9. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE VEHE MENTLY STATED THAT THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER ARE VOID AB INITIO BAD IN LAW AND WITHOUT JURISDICTION AS THE ADDITIONS ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND AT THE TI ME OF SEARCH. STRONG RELIANCE WAS PLACED ON THE DECISION OF THE H ON'BLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA 380 ITR 573 AND O F THE HON'BLE SUPREME COURT IN THE CASE OF SINGHAD TECHNICAL EDUC ATIONAL SOCIETY 397 ITR 344. IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ORDERS AR E NOT AT ALL BASED 5 ON ANY INCRIMINATING MATERIAL/DOCUMENTS FOUND DURIN G THE COURSE OF SEARCH CONDUCTED. 10. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IT IS THE SETTLED POSITION OF LAW THAT ANY ADDITION MADE DE HORS ANY MATERIAL/DOCUMENT FOUND DURING THE COURSE OF SEARCH IS CLEARLY OUTSID E THE ACT AND THUS ILLEGAL AND BAD IN LAW. THE LD. COUNSEL FOR THE AS SESSEE FURTHER STATED THAT IT IS NOT OPEN TO THE ASSESSING OFFICER TO REC ONSIDER THE ISSUES IN PROCEEDINGS U/S 153A OF THE ACT IN AS MUCH AS SUC H PROCEEDINGS ARE UNDERTAKEN AS A CONSEQUENCE OF SEARCH U/S 132 OF TH E ACT AND HAS TO BE NECESSARILY CONFINED TO MATERIAL FOUND DURING TH E COURSE OF SEARCH IN CASES WHERE ASSESSMENT HAD ALREADY BEEN COMPLETE D PRIOR TO THE DATE OF SEARCH. 11. PER CONTRA THE LD. DR SUPPORTING THE ORDER OF THE LOWER AUTHORITIES STATED THAT IT IS INCORRECT TO SAY THA T NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. IT IS THE SAY OF THE LD. DR THAT SOFT COPIES WERE FOUND AND ON PERUSAL OF TH E SAME THE ASSESSING OFFICER UNEARTHED VARIOUS TRANSACTIONS AN D SUCH TRANSACTIONS COULD SEE THE DAY LIGHT ONLY BECAUSE OF THE SEARCH OPERATIONS. 6 THEREFORE THE ASSESSMENT ORDERS ARE VALID ASSESSME NT ORDERS AS PER THE PROVISIONS OF LAW. 12. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS. PAST HISTORY OF THE RETURNS AND ASSESSMENTS CAN BE UNDERSTOOD FROM THE FOLLOWING CHART: ITA NO. AY DATE OF FILING ITR U/S 139(1) DATE OF INTIMATION U/S 143(1) LIMITATION FOR ISSUANCE OF NOTICE U/S 143(2) DATE OF ASSESSMENT FRAMED IF ANY U/S 143(3) WHETHER 143(3) PENDING ON THE DATE OF SEARCH? 3988/DEL/2019 2008 - 09 24.09.2008 13.07.2009 30.09.2009 28.07.2010 NO 3989/DEL/2019 2009-10 29.09.2009 - 30.09.2010 31.05.2011 NO 3990/DEL/2019 2010-11 06.10.2010 24.01.2011 30.09.2011 - NO 3 991/DEL/2019 2011-12 23.09.2011 27.01.2012 30.09.2012 - NO 3992/DEL/2019 2012-13 22.09.2012 17.05.2013 30.09.2013 - NO 13. AS MENTIONED ELSEWHERE SEARCH TOOK PLACE ON 28 .02.2014 AND LAST AUTHORISATION WAS EXECUTED ON 22.04.2014. THE RETURN OF INCOME FOR A.YS 2008-09 TO 2012-13 WERE ALREADY FILED BEFO RE THE DATE OF SEARCH. ASSESSMENTS FOR A.YS 2008-09 AND 2009-10 W ERE FRAMED U/S 143(3) OF THE ACT VIDE ORDERS DATED 28.07.2010 AND 31.05.2011 RESPECTIVELY. 7 14. A PERUSAL OF THE ASSESSMENT ORDER FOR A.Y 2008- 09 REVEALS THAT THE FIRST AND MAIN ADDITION IS ON ACCOUNT OF MILK P URCHASE TANKI. THE ASSESSING OFFICER HAS EXTRACTED THE DETAILS OF PURC HASE OF MILK UNDER DIFFERENT LEDGER HEADS FROM F.YS. 2007-08 TO 2013-1 4 AT PAGE 18 OF HIS ORDER FROM WHICH IT CAN BE SEEN THAT PURCHASE OF MI LK UNDER THE HEAD MILK TANKI ARE CLEARLY MENTIONED. COPY OF THE A SSESSMENT ORDER FRAMED U/S 143(3) OF THE ACT DATED 28.07.2010 FOR A .Y 2008-09 IS PLACED AT PAGES 42 TO 43 OF THE PAPER BOOK AND AUDI TED FINANCIAL STATEMENTS ARE AT PAGES 2 TO 29 OF THE PAPER BOOK. 15. IN THE SCHEDULE THE PROFIT AND LOSS ACCOUNT UND ER THE HEAD PURCHASES A DETAILED BIFURCATION OF MILK PURCHASE S UNDER DIFFERENT HEADS HAVE BEEN MENTIONED AND MILK PURCHASE TANKI I S SPECIFICALLY FOUND IN THE DETAILS. PURCHASES HAVE BEEN SHOWN AT RS. 17 27 01 506.74. IT IS THE SAME AMOUNT WHICH HAS B EEN ADDED BY THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT ORDER U/ S 143(3) R.W.S 153A OF THE ACT. IN OUR CONSIDERED OPINION WHEN THE EN TRIES HAVE BEEN DULY MADE IN THE BOOKS OF ACCOUNT WHICH HAVE BEEN SUBJE CTED TO AUDIT AND THE AUDITED FINANCIAL STATEMENTS OF ACCOUNT WERE PA RT OF THE RETURN OF INCOME FILED MUCH BEFORE THE DATE OF SEARCH WHICH HAVE BEEN USED BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT ORDER DATED 8 28.07.2010 AS MENTIONED HEREINABOVE SUCH ADDITIONS AND SUCH ASSESSMENT ORDERS CANNOT BE ACCEPTED AS THE SAME AR E DEVOID OF ANY INCRIMINATING MATERIAL/DOCUMENTS FOUND AT THE TIME OF SEARCH. 16. NEXT ADDITION IS ON ACCOUNT OF COMMISSION PAID AT RS. 11 72 488/. AGAIN ON A PERUSAL OF THE DETAILS OF ADMINISTRATIV E EXPENSES SAME COMMISSION EXPENSE IS FOUND TO BE CHARGED IN THE PR OFIT AND LOSS ACCOUNT. ONCE AGAIN THIS ADDITION HAS NOTHING TO DO WITH ANY INCRIMINATING MATERIAL/DOCUMENT FOUND AT THE TIME O F SEARCH. 17. SIMILARLY OTHER ADDITIONS HAVE BEEN MADE ON AC COUNT OF DETAILS ALREADY FORMING PART OF AUDITED FINANCIAL STATEMENT OF ACCOUNT. 18. THE LD. DR HAS VEHEMENTLY STATED THAT SOFT COPI ES WERE SEIZED AT THE TIME OF SEARCH AND THE EXTRACTS FROM SOFT COPIE S HAVE BEEN MADE BASIS FOR FRAMING THE IMPUGNED ASSESSMENTS AND THE SAME ARE FOUND AT THE TIME OF SEARCH AND THEREFORE ARE INCRIMINATING MATERIAL. 19. A PERUSAL OF THE AUDITED REPORT IN FORM NO. 3CD WHICH IS PLACED AT PAGE 31 OF THE PAPER BOOK SHOWS THAT UNDER THE D ETAILS BOOKS OF ACCOUNT MAINTAINED IT IS MENTIONED CASH BOOK LE DGER STOCK 9 REGISTER BANK BOOK ETC. BOOKS ARE MAINTAINED O N TALLY ACCOUNTING SOFTWARE. IT SEEMS THAT THIS TALLY ACCOUNTING SOFT WARE WAS SEIZED DURING THE SEARCH AND THE SAME HAS BEEN TREATED AS INCRIMINATING MATERIAL. IN OUR CONSIDERED OPINION REGULAR BOOKS OF ACCOUNT OF THE ASSESSEE BY ANY STRETCH OF IMAGINATION CANNOT BE TREATED AS INCRIMINATING MATERIAL FORMING BASIS OF FRAMING ASS ESSMENT U/S 153A R.W.S 143(3) OF THE ACT. 20. HAVING SAID ALL THAT LET US NOW EXAMINE THE RA TIO OF THE DECISION LAID DOWN BY THE HON'BLE DELHI HIGH COURT IN THE CA SE OF KABUL CHAWLA [SUPRA] WHICH READS AS UNDER: ' 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT READ WITH THE PROVISOS THERETO AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS THE LEGA L POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MAND ATORILY 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. 10 II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH A YS 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 A Y 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 ORD ERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WIL L 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 ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FO UND IN THE COURSE OF THE SEARCH OR OTHER POST-SEARCH MATE RIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELA TED TO THE EVIDENCE FOUND IT DOES NOT MEAN THAT THE ASSES SMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT H AS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' 11 V. IN ABSENCE OF ANY INCRIMINATING MATERIAL THE CO MPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSM ENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN S ECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOS E PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED T HE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND TH E 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 M ATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH B Y THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTH ED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUM ENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCL OSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' 12 21. CLAUSE VII) IS MOST RELEVANT FOR THE QUARREL UN DER CONSIDERATION. AS MENTIONED ELSEWHERE ASSESSMENT FOR ASSESSMENT Y EARS 2008-09 AND 2009-10 WERE COMPLETED U/S 143(3) OF THE ACT VIDE O RDER DATED 28.07.010 AND 31.05.2011 RESPECTIVELY AND AUDITED B OOKS OF ACCOUNT WERE THOROUGHLY EXAMINED AND DETAILS OF PURCHASES O F MILK TANKI MUST HAVE BEEN SCRUTINIZED AS THE SAME IS PART OF THE AU DITED FINANCIAL STATEMENT OF ACCOUNT AS MENTIONED ELSEWHERE. THER EFORE IN THE LIGHT OF THE RATIO LAID DOWN BY THE HON'BLE DELHI HIGH CO URT [SUPRA] COMPLETED ASSESSMENTS CAN BE INTERFERED ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH. 22. IN SO FAR AS THE ASSESSMENT YEARS 2010-11 TO 20 12-13 ARE CONCERNED WHERE NO ASSESSMENT WAS FRAMED U/S 143(3 ) OF THE ACT IT CAN BE SAFELY CONCLUDED THAT THE PERIOD OF LIMITATI ON FOR ISSUING NOTICE U/S 143(2) OF THE ACT EXPIRED MUCH BEFORE THE DATE OF SEARCH. 23. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CHI NTELS INDIA LIMITED 397 ITR 416 HAS HELD THAT ONCE AN ASSESSEE DOES NOT RECEIVE A NOTICE U/S 143(2) OF THE ACT WITHIN THE STIPULATED PERIOD SUCH AN ASSESSEE CAN TAKE IT THAT THE RETURN FILED BY HIM HAS BECOME FINAL AND NO 13 SCRUTINY PROCEEDINGS ARE TO BE STATED IN RESPECT OF THAT RETURN. THIS IS ALSO ABUNDANTLY CLEAR FROM THE CIRCULAR NO. 549 DAT ED 31.10.1989. 24. THE HON'BLE HIGH COURT WAS SEIZED WITH THE FOLL OWING SUBSTANTIAL QUESTION OF LAW: 'DID THE INCOME TAX APPELLATE TRIBUNAL (ITAT) FALL INTO ERROR IN HOLDING THAT THE ASSESSMENTS FOR ASSESSMENT YEAR 20 08-09 WERE PENDING ON THE DATE OF THE SEARCH I.E. 25.03.2010 IN THE CIRCUMSTANCES OF THE CASE?' 25. THE RELEVANT FINDINGS OF THE HON'BLE HIGH COURT READ AS UNDER: 19. THE ABOVE SUBMISSIONS HAVE BEEN CONSIDERED. AS FAR AS AY 2008- 09 IS CONCERNED THE FACT THAT THERE WAS NO N OTICE SENT TO THE ASSESSEE UNDER SECTION 143(3) OF THE ACT BEFORE THE DEADLINE I.E. 30 TH SEPTEMBER 2009 IS NOT IN DI SPUTE. THE CBDT CIRCULAR NO. 549 DATED 31ST OCTOBER 1989 DEAL S WITH SUCH A SITUATION. PARA 5.13 THEREOF READS AS UNDER: '5.13 A PROVISO TO SUB-SECTION (2) PROVIDES THAT A NOTICE UNDER THE SUB-SECTION CAN BE SERVED ON THE ASSESSEE ONLY DURING THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED OR WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE RETUR N IS FURNISHED WHICHEVER IS LATER. THIS MEANS THAT THE DEPARTMENT 14 MUST SERVE THE SAID NOTICE ON THE ASSESSEE WITHIN T HIS PERIOD IF A CASE IS PICKED UP FOR SCRUTINY. IT FOLLOWS THAT I F AN ASSESSEE AFTER FURNISHING THE RETURN OF INCOME DOES NOT RECE IVE A NOTICE UNDER SECTION 143(2) FROM THE DEPARTMENT WITHIN THE AFORESAID PERIOD HE CAN TAKE IT THAT THE RETURN FILED BY HIM HAS BECOME FINAL AND NO SCRUTINY PROCEEDINGS ARE TO BE STARTED IN RESPECT OF THAT RETURN.' 20. IN VIPAN KHANNA V. COMMISSIONER OF INCOME TAX (SUPRA) THE PUNJAB AND HARYANA HIGH COURT REFERRED TO THE SAME CIRCULAR AND OBSERVED THAT IN CASE WHERE THE AO CHOSE TO VER IFY THE RETURN AND FRAME AN ASSESSMENT HE HAS TO ISSUE A NO TICE UNDER SECTION 143(2) OF THE ACT REQUIRING THE ASSESSEE TO PRODUCE HIS BOOKS OF ACCOUNTS AND OTHER MATERIAL IN SUPPORT OF HIS RETURN. THE HIGH COURT PROCEEDED TO OBSERVE: '....THEREAFTER HE CAN MAKE AN ASSESSMENT UNDER SUB -SECTION (3) OF SECTION 143 OF THE ACT. ANOTHER IMPORTANT CHANGE INCORPORATED IN SUB-SECTION (2) OF SECTION 143 OF T HE ACT IS THAT THE NOTICE UNDER THIS SUB-SECTION CANNOT BE SERVED ON AN ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. THEREFORE IN A CASE WHERE A RETURN IS FILED AND IS PROCESSED UNDER SECT ION 143(1)(A) OF THE ACT AND NO NOTICE UNDER SUB-SECTION (2) OF S ECTION 143 OF THE ACT THEREAFTER IS SERVED ON THE ASSESSEE WITHIN THE STIPULATED PERIOD OF 12 MONTHS THE ASSESSMENT PROC EEDINGS UNDER SECTION 143 COME TO AN END AND THE MATTER BEC OMES FINAL. 15 THUS ALTHOUGH TECHNICALLY NO ASSESSMENT IS FRAMED IN SUCH A CASE YET THE PROCEEDINGS FOR ASSESSMENT STAND TERM INATED.' 21. IN THE PRESENT CASE THE FACTS SPEAK FOR THEMSE LVES. THE ASSESSEE FILED ITS RETURN ON 21ST OCTOBER 2008. TH E RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 27TH MARCH 2010. IT HAS HELD BY THIS COURT IN INDU LATA RANGWALA V. DEPUTY COMMISSIONER OF INCOME TAX (SUPRA) THAT THE MERE PROCESSING OF A RETURN UNDER SECTION 143(1) OF THE ACT AND THE SENDING OF AN INTIMATION TO THE ASSESSEE WILL NOT MAKE IT AN ' ASSESSMENT'. AT THE SAME TIME THE CONSEQUENCES OF THE DEPARTMEN T NOT ISSUING A NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME STIPULATED AS FAR AS THE FILING OF THE RETURN IN NO RMAL COURSE IS CONCERNED WAS NOT EXAMINED EITHER IN COMMISSIONER OF INCOME TAX V. KABUL CHAWLA (SUPRA) OR INDU LATA RANGWALA V. DEPUTY COMMISSIONER OF INCOME TAX (SUPRA). AS NOTICE BY THE PUNJAB & HARYANA HIGH COURT IN VIPAN KHANNA V. COMMISSIONER OF INCOME TAX (SUPRA) THE CBDT CIRCULAR MAKES IT ABUNDANTLY CLE AR THAT ONCE AN ASSESSEE DOES NOT RECEIVE A NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE PERIOD STIPULATED THEN SUCH AN ASSESSEE 'CAN TAKE IT THAT THE RETURN FILED BY HIM HAS BECOME FINAL AND NO SCRUTINY PROCEEDINGS ARE TO BE STARTED IN RESPECT OF THAT RETURN.' 22. THE INEVITABLE CONCLUSION THEREFORE IN THE PR ESENT CASE IS THAT THE ITAT WAS IN ERROR IN HOLDING THAT THE ASSE SSMENT FOR AY 2008-09 SHOULD BE TREATED AS 'PENDING' WHEREAS I N TERMS OF 16 THE ABOVE CBDT CIRCULAR IT SHOULD BE TREATED AS FIN AL IN RESPECT OF WHICH NO SCRUTINY ARE TO BE STARTED. 23. CONSEQUENTLY AS FAR AS ITA NO. 581/2016 IS CONC ERNED THE QUESTION FRAMED BY THIS COURT ON 27TH JANUARY 2017 IS ANSWERED IN THE AFFIRMATIVE I.E. IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE IMPUGNED ORDER OF THE ITAT TO THE EXTENT IT NEGATIVES THE PLEA OF THE ASSESSEE IS HER EBY SET ASIDE AND THE APPEAL IS ALLOWED. 26. THE AFOREMENTIONED DECISIONS OF THE HON'BLE HIG H COURT OF DELHI ONE IN THE CASE OF KABUL CHAWLA [SUPRA] AND ANOTHER IN THE CASE OF CHINTELS INDIA LTD [SUPRA] CLEARLY SETTLE DOWN THE QUARREL IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. RESPECTFULLY FOLLOWING THE SAME WE ARE OF THE CONSIDERED OPINION THAT THE ASS ESSMENT ORDERS FRAMED U/S 143(3) R.W.S 153A OF THE ACT ARE BAD IN LAW AND DESERVE TO BE QUASHED. 27. SINCE WE HAVE QUASHED THE ASSESSMENT ORDERS WE DO NOT FIND IT NECESSARY TO DWELL INTO THE MERITS OF THE CASE AND OTHER ISSUES RAISED. 28. IN ITA NO. 3991/DEL/2019 FOR ASSESSMENT YEAR 2011 ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 6 66 91 6/ THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED SALARY EX PENDITURE. 29. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PER USAL OF PAGE 50 OF ANNEXURE A- 7 SEIZED FROM THE PARTY AT TOWER NEW DELHI THE ASSESSING OFFICER FOUND THAT THER DIFFERENCE IN THE DOCUMENT FOUND WHICH IS EXHIBITED AT PAGE 25 OF THE ASSESSMENT WHICH IS AS UNDER: 17 IN ITA NO. 3991/DEL/2019 FOR ASSESSMENT YEAR 2011 ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 6 66 91 6/ - MADE U/S 69C OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED SALARY EX PENDITURE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PER USAL OF PAGE 7 SEIZED FROM THE PARTY AT CORPORATE OFFICE THE ASSESSING OFFICER FOUND THAT THER E WAS DIFFERENCE IN THE DOCUMENT FOUND WHICH IS EXHIBITED AT PAGE 25 OF THE ASSESSMENT WHICH IS AS UNDER: IN ITA NO. 3991/DEL/2019 FOR ASSESSMENT YEAR 2011 -12 THE MADE U/S 69C OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED SALARY EX PENDITURE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PER USAL OF PAGE OFFICE PARAM WAS A SALARY DIFFERENCE IN THE DOCUMENT FOUND WHICH IS EXHIBITED AT PAGE 25 OF THE 18 30. THE ASSESSING OFFICER WAS OF THE OPINION THAT T HE DETAILS MENTIONED IN THE PAGE DO NOT MATCH WITH THE BOOKS O F ACCOUNT. THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME. ON RECEIVI NG NO PLAUSIBLE REPLY THE ASSESSING OFFICER MADE ADDITION OF RS. 6 66 916/- AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. 31. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 32. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY STATED THAT ON PERUSAL OF THE IMPUGNED SEIZED DOCUMENT IT WOULD CLEARLY SHOW THAT IT IS A DUMB DOCUMENT AND FROM WHICH NO L OGICAL INFERENCE CAN BE DRAWN. FURTHER THE LD. COUNSEL FOR THE ASS ESSEE STATED THAT FOR MAKING ADDITION U/S 69C OF THE ACT BEFORE MAKING A N ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE THE ASSESSING O FFICER HAS TO BRING ON RECORD MATERIAL TO SHOW THAT ON EVIDENCE FOUND A S A RESULT OF SEARCH THERE IS AN UNDISCLOSED EXPENDITURE REPRESE NTED BY DEBITS APPEARING IN THE BOOKS OF ACCOUNT. IT IS THE SAY O F THE LD. COUNSEL FOR THE ASSESSEE THAT FROM THE DOCUMENT IT IS NOT POSS IBLE TO KNOW THE AUTHOR OF THE SAME. 19 33. THE LD. DR ON THE OTHER HAND CHALLENGED THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE BY STATING THAT U/S 29 2C OF THE ACT THE ONUS IS UPON THE ASSESSEE AS THE SAID PROVISION CLE ARLY RAISES A PRESUMPTION AS TO THE ASSETS BOOKS OF ACCOUNT ETC FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON BELONG TO THE S AID PERSON. 34. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE R IVAL CONTENTIONS AND HAVE CAREFULLY PERUSED THE IMPUGNED DOCUMENT VI S A VIS THE ASSESSMENT ORDER. IN OUR CONSIDERED OPINION WHAT IS POSTULATED IN SECTION 69C OF THE ACT IS THAT FIRST OF ALL THE AS SESSEE MUST HAVE INCURRED THAT EXPENDITURE AND THEREAFTER IF THE EX PLANATION OFFERED BY THE ASSESSEE ABOUT THE SOURCE OF SUCH EXPENDITURE I S NOT FOUND SATISFACTORY BY THE ASSESSING OFFICER THE AMOUNT M AY BE ADDED TO HIS INCOME. WE FIND THAT NO INDEPENDENT MATERIAL OR EV IDENCE HAD BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO ESTAB LISH THAT THE NOTINGS/JOTTINGS RECORDED ON THE LOOSE SHEET OF PAP ER REPRESENTED UNACCOUNTED TRANSACTION. 35. IT IS TRUE THAT THE INITIAL ONUS IS UPON THE AS SESSEE AS THE SAID DOCUMENT WAS FOUND FROM HIS POSSESSION BUT AT THE S AME TIME SOME LOGICAL INFERENCE HAS TO BE DRAWN FROM THE SEIZED D OCUMENT WHICH IN THE PRESENT CASE WE ARE UNABLE TO DRAW. IN OUR HUM BLE VIEW THE SAID 20 DOCUMENT CAN ONLY BE CONSIDERED AS A DUMB DOCUMENT AS THE SAID DOCUMENT DOES NOT CONTAIN FULL DETAILS ABOUT THE DA TES OF PAYMENTS AND THE RECIPIENT OF THE PAYMENTS NOR THERE IS MENT ION OF ANY NAME OF THE EMPLOYEE. FOR WANT OF DETAILS THE IMPUGNED DO CUMENT CAN ONLY BE CONSIDERED AS A DUMB DOCUMENT. 36. CONSIDERING THE NATURE OF DOCUMENT AND JOTTING/ NOTINGS MADE THEREON WE ARE OF THE VIEW THAT NO ADDITION CAN BE MADE ON THE BASIS OF SUCH DUMB DOCUMENT AND ADDITION IS ACCORDINGLY DIRECTED TO BE DELETED. 37. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE IN ITA NOS. 3988 TO 3994/DEL/2019 ARE ALLOWED AND THOSE OF THE REVENUE IN ITA NOS. 50 23 TO 5027/DEL/2019 STAND DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19.11. 2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 TH NOVEMBER 2019 VL/ 21 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER