Mridul Commodities Pvt. Ltd., Kolkata v. DCIT, CC-XXI, Kolkata, Kolkata

ITSSA 14/KOL/2015 | 2008-2009
Pronouncement Date: 07-10-2016

Appeal Details

RSA Number 1423516 RSA 2015
Assessee PAN AABCM9549C
Bench Kolkata
Appeal Number ITSSA 14/KOL/2015
Duration Of Justice 1 year(s) 8 month(s) 22 day(s)
Appellant Mridul Commodities Pvt. Ltd., Kolkata
Respondent DCIT, CC-XXI, Kolkata, Kolkata
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 07-10-2016
Assessment Year 2008-2009
Appeal Filed On 16-01-2015
Judgment Text
1 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH AM & SHRI S.S. VISWANE THRA RAVI JM] I.T(SS).A NOS. 14 & 15/KOL/2015 ASSESSMENT YEARS: 2008-09 & 2009-10 MRIDUL COMMODITIES PVT. LTD. VS. DEPUTY COMM ISSIONER OF INCOME-TAX (PAN: AABCM9549C) CENTRAL CIRCLE-XXI KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 03.10.2016 DATE OF PRONOUNCEMENT: 07.10.2016 FOR THE ASSESSEE: SHRI MANISH TIWARI FCA FOR THE REVENUE: SHRI G. MALLIKARJUNA CIT DR ORDER PER SHRI M. BALAGANESH AM: BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A)-21 KOLKATA VIDE APPEAL NOS. 119 & 118/CC-4(4)/CIT(A)-2 1/14-15 BOTH DATED 25.11.2014. ASSESSMENTS WAS FRAMED BY DCIT CC-XXI KOLKATA U/S . 153A/143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FO R AYS 2008-09 AND 2009-10 VIDE HIS SEPARATE ORDERS DATED 31.03.2014. SINCE GROUNDS AR E COMMON AND FACTS ARE IDENTICAL WE DISPOSE OF BOTH THE APPEALS BY THIS CONSOLIDATED OR DER. 2. THE ONLY COMMON ISSUE TO BE DECIDED IN THESE AP PEALS IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE ADDITION MADE IN THE SUM S OF RS. 20 00 000/- AND RS. 72 00 000/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT IN THE SEARCH ASSESSMENTS FRAMED U/S 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIA L FOUND DURING THE COURSE OF SEARCH TO THAT EFFECT. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED U/S 132 OF THE ACT ON 22.9.2011 IN THE RESIDENTIAL AND OFFICE PREMISES OF THE RAHEE GROUP. THE GROUP IS PRIMARILY ENGAGED IN THE BUSINESS OF R AILWAY INFRASTRUCTURE RAILWAY TRACK PRODUCT MANUFACTURER (TRACK INSTALLATION AND BRIDGE ) . THE FLAGSHIP COMPANY OF THE GROUP IS RAHEE INDSUTRIES LTD NOW RENAMED AS RAHEE INFRATECH LTD. CONSEQUENT TO THE SEARCH NOTICE 2 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 U/S 153A OF THE ACT WAS ISSUED ON 24.12.2012 FOR AS ST YEARS 2006-07 TO 2011-12 AND NOTICE U/S 142(1) OF THE ACT FOR ASST YEAR 2012-13. IN RE SPONSE THERETO THE ASSESSEE FILED ITS RETURNS ON 9.5.2013 DISCLOSING TOTAL LOSS OF RS. 23 830/- FOR THE ASST YEAR 2008-09 AND TOTAL INCOME OF RS. 10 94 660/- FOR THE ASST YEAR 2009-10 . THE LD AO OBSERVED IN HIS ORDER THAT THE GROUP PRIMAFACIE WAS FOUND TO BE GENERATING U NACCOUNTED INCOME BY SUPPRESSING ITS INCOME BY CLAIMING INFLATED EXPENSES IN ITS FLAGSHI P CONCERN RAHEE INDUSTRIES LTD. IN THE A.Y. 2010-11 RAHEE INDUSTRIES LTD. HAD DEBITED A BO GUS SUB-CONTRACT EXPENSE TO M/S. SAFECO PROJECTS PVT. LTD. M/S. SAFECO PROJECTS PVT. LTD. IS BEING MANAGED BY ONE ADITYA CHIRIMERR WHO IS A WELL KNOWN ENTRY OPERATOR. THER E WAS ONE CASE OF M/S AMR CONSTRUCTION LTD. WHERE SEARCH WAS CONDUCTED BY THE HYDERABAD INVESTIGATION UNIT DURING WHICH SAFECO PROJECT LTD. HAD ACCEPTED THAT THEY HA D NOT CARRIED ANY ACTUAL SUB-CONTRACT WORK FOR M/S. AMR CONSTRUCTION AND HAD ONLY PROVIDE D BOGUS ENTRIES. IN THE F. Y. 2010- 11 TOO M/S. RAHEE INDUSTRIES LTD. HAD DEBITED CERT AIN EXPENSES BY WAY OF COMMISSION PAYMENTS TO M/S. HOOGHLY ALLOY & STEEL CO. PVT. LTD . HOWEVER HOOGHLY ALLOYS IS ACTUALLY ENGAGED IN THE BUSINESS OF MANUFACTURING O F SPONGE IRON AND IT IS LIKELY THAT THEY HAD NOT PROVIDED ANY TECHNICAL SERVICE TO RAHEE IND USTRIES LTD. THE GROUP WAS FURTHER ALLEGED TO HAVE BEEN ROUTING THEIR UNACCOUNTED INCO ME BACK INTO THE BUSINESS IN THE FORM OF SHARE CAPITAL AND SHARE PREMIUM IN ITS BOOKS OF ACC OUNTS. THE LD AO OBSERVED THAT IN RESPECT OF SHARE APPLICATION MONEY RECEIVED IN THE SUMS OF RS. 20 00 000/- FROM SHAMBAV DISTRIBUTORS PVT LTD THE ASSESSEE COULD NOT PROVE THE IDENTITY OF THE SUBSCRIBERS AND GENUINENESS OF TRANSACTIONS AND ACCORDINGLY PROCEED ED TO ADD THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT FOR THE ASST YEAR 2008-09. SIMILARLY IN RESPECT OF SHARE APPLICATION MONIES RECEIVED FROM M/S DIGAMVARI AGENCY PVT LTD ( RS. 20 00 000/-) ; M/S WIG WAM FINANCE & INVESTMENTS PVT LTD (RS. 25 00 000/-) ; M /S SHAMBAV DISTRIBUTORS PVT LTD (RS. 27 00 000/-) TOTALING TO RS. 72 00 000/- HE BROUGH T THE SAME TO TAX AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT FOR THE ASST YEAR 2009-10 FOR THE SAME REASONS. 4. BEFORE THE LD CITA THE ASSESSEE OBJECTED TO T HE MAKING OF ADDITIONS U/S 68 OF THE ACT IN THE ASSESSMENTS FRAMED U/S 153A OF THE ACT I N AS MUCH AS THERE WAS ABSOLUTELY NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH WHICH WOULD ENABLE THE LD AO TO DRAW AN ADVERSE INFERENCE WITH REGARD TO THE VERACI TY OF THE SHARE APPLICATION MONIES 3 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 RECEIVED BY THE ASSESSEE IN ASST YEARS 2008-09 AND 2009-10 FROM VARIOUS PARTIES AS LISTED ABOVE. THE ASSESSEE PLEADED THAT THE ASST YEARS 2 008-09 WAS ORIGINALLY COMPLETED U/S 143(3) OF THE ACT AND HENCE ON THE DATE OF SEARCH IT WAS A CONCLUDED PROCEEDING. IT WAS PLEADED THAT WITHOUT HAVING ANY INCRIMINATING MATER IAL FOUND IN THE COURSE OF SEARCH RELATABLE TO ASST YEAR 2008-09 THE INCOME DETERMIN ED THEREON U/S 143(3) OF THE ACT CANNOT BE DISTURBED IN SECTION 153A ASSESSMENT. SIMILARL Y FOR ASST YEAR 2009-10 IT WAS PLEADED THAT THE ASSESSMENT WAS ORIGINALLY FRAMED U/S 143(1 ) OF THE ACT AND THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT HAD EXPIRE D AND ACCORDINGLY IT COULD REASONABLY BE CONCLUDED THAT THE SAID ASSESSMENT PROCEEDING ALSO HAD GOT CONCLUDED ON THE DATE OF SEARCH I.E ON 22.9.2011. IT WAS PLEADED THAT WITHOUT HAVI NG ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH RELATABLE TO ASST YEAR 2009-10 TH E INCOME DETERMINED THEREON U/S 143(1) OF THE ACT CANNOT BE DISTURBED IN SECTION 153A ASSE SSMENT. THE LD CITA DISMISSED THE PLEA OF THE ASSESSEE WITH REGARD TO THE ABSENCE OF INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH BY OBSERVING AS UNDER :- I AM NOT INCLINED TO AGREE WITH THE SUBMISSION OF T HE APPELLANT COMPANY BECAUSE IT MIGHT BE POSSIBLE THAT NO DIRECT EVIDENCE IN THIS R EGARD WAS FOUND IN THE COURSE OF SEARCH BUT THE FACT REMAINS THAT EVIDENCES WERE FOU ND THAT THE GROUP WAS INDULGED IN GENERATING THE UNACCOUNTED INCOME AND WAS ALSO INDU LGED IN TAKING AND GIVING ACCOMMODATION ENTRIES. THUS AT LEAST THERE WERE INDIRECT EVIDENCES WHICH WERE GATHERED IN THE COURSE OF SEARCH. 5. THE ASSESSEE SUBMITTED THAT THE LD AO VIDE HIS LETTER DATED 19.9.2013 ASKED THE ASSESSEE THE FOLLOWING DETAILS :- PLEASE GIVE FULL DETAILS OF SHAREHOLDERS FUND INCL UDING THOSE OF ANY INCREASE YEAR WISE FROM A.Y. 2006-07 TO 2012-13. IN RESPONSE TO THIS THE ASSESSEE DREW THE ATTENTIO N OF THE LD CITA TO THE COMPLIANCE LETTER DATED 5.3.2014. IT WAS STATED THAT THE OMISSION TO SUPPLY THE SO-CALLED ADDRESS AND PAN DETAILS WERE NOT POINTED OUT TO THE ASSESSEE BY THE LD AO DURING THE COURSE OF NEXT HEARING ON 10.3.2014. THE ASSESSEE SUBMITTED THE INCOME TA X RETURN ACKNOWLEDGEMENTS OF M/S SHAMBAV DISTRIBUTORS PVT LTD M.S DIGAMVARI AGENCY PVT LTD AND M/S WIG WAM FINANCE & INVESTMENT PVT LTD ALONG WITH THEIR STATEMENT OF ACCOUNTS TO ESTABLISH THE IDENTITY AND GENUINENESS OF SHAREHOLDERS. THE LD CITA OBSERVED THAT THE ASSESSEE SUBMITTED ONLY THE 4 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 BALANCE SHEET AND PROFIT AND LOSS ACCOUNT OF THE S HARE SUBSCRIBERS BUT DID NOT FILE THE COPIES OF THE BANK STATEMENTS OF EITHER OF THE SUBSCRIBERS OR ITS OWN BANK STATEMENTS. IT WAS SUBMITTED BEFORE THE LD CITA THAT SINCE THE MATTER IS VERY OLD THE COPIES OF BANK STATEMENTS OF THE SHARE SUBSCRIBERS COULD NOT BE PRODUCED. 6. THE LD AO IN HIS REMAND REPORT IN PROCEEDINGS N O. DCIT /CC-XXI/KOL/2014- 15/454 DATED 16.7.2014 STATED THE FOLLOWING :- TECHNICAL IRREGULARITY THE ASSESSEE CONTENDED THAT THE ADDITION U/S 68 ON ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY SUFFERS FROM LEGAL & TECHNICAL IR REGULARITY AS ORIGINAL ASSESSMENT FOR THE SAID ASSESSMENT YEAR HAS BEEN COMPLETED BE FORE SEARCH WAS CONDUCTED WHERE NO ADDITION ON THE SAME GROUND WAS MADE. SINCE ADD ITION TO THE INCOME THAT HAS ALREADY BEEN MADE IN COURSE OF ASSESSMENT U/S 153A CAN BE MADE ON THE BASIS OF INCRIMINATING MATERIALS WHICH IN THE CONTEXT OF REL EVANT PROVISIONS MEANS I) BOOKS OF ACCOUNT OTHER DOCUMENTS FOUND IN COURSE OF SEAR CH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND II) UNDISCLOSED INCOME O R PROPERTY DISCOVERED IN THE COURSE OF SEARCH. AGAINST THE ABOVE CONTENTION OF THE ASSESSEE IN CAS E OF TECHNICAL IRREGULARITIES IT IS BEING SUBMITTED THAT ASSESSMENT U/S 153A MEANS REAS SESSMENT AS PER PROVISION OF SEC. 153A WHICH IS BEING REPRODUCED AS UNDER : ------------- THEREFORE IN CASE OF REASSESSMENT REVISIT OF THE S AME ISSUES CAN BE MADE EVEN IF NO INCRIMINATING MATERIALS ARE FOUND ON THAT ISSUE. MOREOVER IN THE APPRAISAL REPORT IT WAS POINTED OUT THAT THE GROUP IS GENERATING UNACCOUNTED INCOME BY WAY OF BOGUS EXPENSES AND TH E SAID MONEY HAS BEEN INTRODUCED AS A SHARE CAPITAL IN THE GROUP COMPANIE S. HENCE THE AO MAY EXAMINE ALL SHARE CAPITAL WHICH WAS INTRODUCED IN THE GROUP COMPANIES DURING THE LAST YEARS. ON MERITS AGAINST THE ABOVE CONTENTION OF THE ASSESSEE AS REG ARD MERIT IT IS BEING SUBMITTED THAT IN THE NOTICE U/S 142(1) DETAILS OF SHARE APPL ICANT WERE CALLED FOR VIDE Q.NO. 15 16 AND 30 WHICH ARE BEING REPRODUCED AS UNDER:- -------------- THEREFORE THE ALLEGATION THAT THE CONCLUSION WAS DR AWN BEHIND THE BACK OF THE ASSESSEE IS NOT CORRECT BECAUSE IN THE INITIAL NOTI CE AS REPRODUCED ABOVE THE DETAILS OF SHARE APPLICANT WERE CALLED FOR WHICH WAS COMPLI ED TO AFTER EXHAUSTING SOME OPPORTUNITIES IN THE FIRST INSTANCE AND IN THE SECO ND HAVING REPEATEDLY APPEARED IT 5 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 WAS THE ONUS OF THE ASSESSEE TO COME WITH FULL DETA ILS OF THE SHARE APPLICANT. THE SAME WAS NOT DISCHARGED. IN VARIOUS CASES FOR PROVING THE GENUINENESS OF ANY TRANSACTION IT HAS BEEN HELD THAT THE ONUS IS ON THE ASSESSEE TO PROVE THE FOLLOWING: A) GENUINENESS OF THE IDENTITY OF THE SUBSCRIBERS II) CREDITWORTHINESS OF THE SUBSCRIBERS III) GENUINENESS OF TRANSACTIONS 7. THE LD CITA CONSIDERED THE REMAND REPORT OF TH E LD AO AND EXAMINED THE BALANCE SHEET AND THE SUMMARY OF HIS OBSERVATIONS ARE TABUL ATED HEREINBELOW:- AS ON 31.3.2009 SHAMBAV DIST DIGAMVARI WIG WAM SHARE CAPITAL 52 95 000 20 46 000 1 62 66 500 SHARE PREMIUM 4 67 55 000 4 67 04 000 8 31 0 1 500 SALE OF SHARES 16 00 000 INTEREST INCOME 95 278 8 37 818 MISCELLANEOUS INCOME 6 940 RETURNED INCOME 5 690 1 530 25 480 THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM WAS INVE STED IN THE EQUITY SHARES OF OTHER PRIVATE LIMITED COMPANIES INCLUDING THE ASSESSEE COMPANY. HE CONCLUDED THAT THE SUBSCRIBING COMPANIES ARE MERE PAPER COMPANIES AND BASED ON THE SE OBSERVATIONS HE DISMISSED THE CLAIM OF THE ASSESSEE. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS :- 1. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) IS WRONG AND UNJUSTIFIED IN UPHOLDING THE ADDITION OF RS. 20 00 000/- U/S 68 OF INCOME TAX ACT 1961 WITHOUT PROPER APPRECIATION OF THE RATIO OF JUDGEME NT OF ITAT SPECIAL BENCH MUMBAI IN ALL CARGO GLOBAL LOGISTICS LTD. - VS - DCIT (ITA NO. 50 18 TO 5022 & 5059/M/2010) AND MISREADING THE FACTS OF THE PRESENT CASE. (B) THAT WITHOUT PREJUDICE TO GROUND NO.1(A) AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ACTION OF LD. CIT(A) TO CONFIRM ADDITION U/S.68 OF INCOME TAX ACT 1961 TOWARDS SHARE CAPITAL IS ERRONEOUS ARBITRARY AND BAD IN LA W. (C) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE LD. CIT(A) IS WRONG AND UNJUSTIFIED IN CONFIRMING ADDITION U/S. 68 OF INCOME TAX ACT 1 961 TOWARDS SHARE CAPITAL FUND BY RELYING ON VARIOUS JUDICIAL DECISIONS WHICH ARE DISTINGUISH ABLE ON FACTS. (D) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE ACTION OF LD. CIT(A) TO CONFIRM THE ADDITION U/S 68 OF INCOME TAX ACT 1961 TOWARDS SHARE CAPITAL FUND IS CONTRARY TO THE RATIO OF DECISION OF SUPREME COURT IN CIT - VS - LO VELY EXPORTS (P) LTD. 216 CTR 195. 6 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 SIMILAR GROUNDS ARE RAISED FOR ASST YEAR 2009-10 AN D THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. 8. THE LD AR REITERATED THE SUBMISSIONS MADE BEFOR E THE LD CITA WITH REGARD TO FRAMING OF ADDITIONS IN SECTION 153A ASSESSMENTS WI THOUT ANY INCRIMINATING MATERIAL FOUND THEREON. RELIANCE WAS PLACED ON THE FOLLOWING DECI SIONS IN SUPPORT OF HIS CONTENTIONS:- 1. CIT VS VEERPRABHU MARKETING LTD REPORTED IN (201 6) 73 TAXMANN.COM 149 (CAL HC) 2. DECISION OF THIS TRIBUNAL IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/KOL/2011 DATED 9.12.2015 3. CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 5 73 ( DELHI HC) 4. CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAV A SHEVA) LTD AND ALL CARGO GLOBAL LOGISTICS LTD REPORTED IN (2015) 374 ITR 645 ( BOM) HE ARGUED THAT THE LD AO HAD CATEGORICALLY ADMITTED IN HIS REMAND ORDER THAT THERE WERE NO INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH FOR MAKING SHARE CAPITAL ADDITION. 8.1. WITH REGARD TO MERITS OF THE ADDITION HE ARG UED THAT THE ENTIRE DETAILS OF SHARE SUBSCRIBERS WERE DULY EXAMINED BY THE LD CITA AND R EFLECTED IN HIS ORDER. THE LD CITA ERRONEOUSLY CAME TO THE CONCLUSION THAT THE SAID EN TITIES ARE MERE PAPER COMPANIES BASED ON THE LOWER INCOME DECLARED BY THEM IN THE PROFIT AND LOSS ACCOUNT. BUT WHAT IS RELEVANT TO BE SEEN FOR THE PURPOSE OF EXPLAINING THE SOURCE FOR M AKING THE INVESTMENTS IN ASSESSEE COMPANY IS ONLY THE AVAILABILITY OF CASH FLOW WITH THE SAID COMPANIES WHICH HAD ADMITTEDLY BEEN THEIR OWN FUNDS IN THE FORM OF SHARE CAPITAL A ND SHARE PREMIUM. THIS FACT HAD NOT BEEN DISPUTED BY THE LD CITA IN HIS ORDER. HE ARGUED TH AT THE ENTIRE ADDITION HAS BEEN MADE ONLY BECAUSE IN THE APPRAISAL REPORT THE INVESTIGATION WING HAD MADE SOME WILD ALLEGATIONS ABOUT THE ASSESSEE GROUP ABOUT THE GENERATION OF UN ACCOUNTED INCOME. HENCE IT COULD BE SAFELY CONCLUDED THAT THE LD AO HAD MADE THE ADDITI ONS ONLY TO SATISFY WHAT HAS BEEN STATED IN THE APPRAISAL REPORT WITHOUT HAVING ANY INDEPEND ENT APPLICATION OF MIND ON HIS PART AND WITHOUT BRINGING ANY MATERIALS ON RECORD IN SUPPORT OF THE ADDITION AND BRING EVIDENCES IN SUPPORT OF THE WILD ALLEGATIONS MADE IN THE APPRAIS AL REPORT. HE ARGUED THAT EVEN ON MERITS 7 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 THE ASSESSEE HAD PROVED THE NECESSARY INGREDIENTS O F SECTION 68 OF THE ACT AND HENCE THE ADDITION DESERVES TO BE DELETED. 9. IN RESPONSE TO THIS THE LD DR ARGUED THAT THE EXPRESSION INCRIMINATING MATERIAL IS NOT FOUND IN THE PROVISIONS OF THE ACT AND IT IS ON LY THE HONBLE COURTS WHICH HAD IMPORTED THOSE WORDS WHILE RENDERING THE DECISIONS. HE STATE D THAT THE HONBLE COURTS ARE DIVIDED ON THIS ISSUE AND PLACED RELIANCE ON THE DECISION OF T HE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT CO VS DCIT REPOR TED IN (2014) 49 TAXMANN.COM 98 (KAR HC) WHEREIN IT WAS HELD THAT SEARCH ASSESSMENTS COULD BE FRAMED EVEN WITHOUT THE EXISTENCE OF INCRIMINATING MATERIALS FOUND IN THE C OURSE OF SEARCH. WITH REGARD TO ASSESSMENT FOR THE ASST YEAR 2009-10 FRAMED U/S 143 (1) OF THE ACT HE ARGUED THAT NO ASSESSMENT COULD BE TREATED TO HAVE BEEN FRAMED BY THE LD AO U/S 143(1) OF THE ACT. HE ARGUED THAT THE BASIC FOUNDATION FOR CONDUCTING THE SEARCH IS GOVERNED BY THE PROVISIONS OF SECTION 132 OF THE ACT WHICH HAS TO BE READ HARMONI OUSLY WITH SECTION 153A OF THE ACT. THERE ARE THREE CONDITIONS BASED ON WHICH A SEARCH ACTION COULD BE INITIATED U/S 132 OF THE ACT ON AN ASSESSEE. THEY ARE :- SECTION 132(1) - IF THE CONCERNED AUTHORITY HAS IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION HAS REASON TO BELIEVE THAT - (A) WHERE A PERSON FAILS TO PRODUCE THE BOOKS OF ACCOUN TS AND OTHER DOCUMENTS IN RESPONSE TO NOTICE U/S 142(1) OR SUMMONS ISSUED U/S 131(1) OF THE ACT ; OR (B) WHERE A PERSON FAILS TO COMPLY WITH THE REQUIREMENT S OF SUMMONS ISSUED U/S 131(1) OF THE ACT ; OR (C) WHERE A PERSON IS IN POSSESSION OF ANY MONEY BULLI ON JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND SUCH ASSETS REPRESENTS EITHER WHOLLY OR PARTLY INCOME OR PROPERTY WHICH HAS NOT BEEN OR WOULD NOT BE DISCLOSED FOR THE PURPOSES OF THE ACT (HEREINAFTER REFERRED TO AS THE UNDISCLOSED INCOME OR PROPERTY) ; THEN THE OFFICER SO AUTHORIZED COULD CONDUCT A SE ARCH AND PROCEED AS PER THE REQUIREMENTS LAID DOWN IN THE SAID SECTION. HE ARGUED THAT THE AFORESAID THREE PRIMARY CONDITIONS FOR 8 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 INVOKING SEARCH PROCEEDINGS CANNOT BE GIVEN A GO BY WHILE FRAMING SECTION 153A ASSESSMENTS AND THE INSTANT CASE FALLS UNDER SECTIO N 132(1)(C ) OF THE ACT. THE PROVISIONS OF SECTION 153A OF THE ACT USE THE E XPRESSION ASSESS OR REASSESS TOTAL INCOME AND HENCE THE SEARCH ASSESSMENT COULD BE FR AMED U/S 153A OF THE ACT IRRESPECTIVE OF ANY INCRIMINATING MATERIALS. IN SUPPORT OF HIS PROPOSITION THAT SECTION 143(1) IS NOT AN ASSESSMENT HE PLACED RELIANCE ON THE FOLLOWING DEC ISIONS :- TATA METALIKS LTD VS CIT IN ITA NO. 301 OF 2005 DAT ED 22.9.2014 (CAL HC) DCIT VS ZUARI ESTATE DEVELOPMENT & INVESTMENT CO. L TD IN CIVIL APPEAL NO. 6758 OF 2004 DATED 17.4.2015 (SC) WITH REGARD TO THE ADDITION MADE ON MERITS HE HEAV ILY RELIED ON THE ORDER OF THE LD CITA. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE T HROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN T HE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS A S ON THE DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASST YEAR 2008- 09 WAS ORIGINALLY COMPLETED U/S 143(3) OF THE ACT AND HENCE IT FALLS UNDER CONCLUDED PROCE EDING AS ON THE DATE OF SEARCH. THE ASSESSMENT FOR THE ASST YEAR 2009-10 WAS COMPLETED U/S 143(1) OF THE ACT. ONCE THE RETURN IS PROCESSED U/S 143(1) OF THE ACT AND NO NO TICE U/S 143(2) OF THE ACT HAS BEEN ISSUED THEN IT BECOMES A COMPLETED / CONCLUDED PROCEEDING. THEREAFTER IF A SEARCH HAPPENS THEN THAT ASST YEAR WHERE 143(1) WAS MADE WOULD FALL U NDER THE AMBIT OF CONCLUDED ASSESSMENT AS ADMITTEDLY NO PROCEEDING WAS PENDING ON THE DATE OF SEARCH TO GET ABATED. HENCE THE LEGISLATURE DOES NOT DIFFERENTIATE WHETHER THE ASSE SSMENTS ORIGINALLY WERE FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. HENCE UNLESS THERE IS ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABLE TO THOSE CONCLUDED Y EARS THE STATUTE DOES NOT CONFER ANY POWER ON THE LD AO TO DISTURB THE FINDINGS GIVEN TH EREON AND INCOME DETERMINED THEREON AS FINALITY HAD ALREADY BEEN REACHED THEREON AND THOSE PROCEEDINGS WERE NOT PENDING ON 9 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 THE DATE OF SEARCH TO GET THEMSELVES ABATED. THE P ROVISIONS OF SECTION 153A OF THE ACT ARE REPRODUCED HEREUNDER FOR THE SAKE OF CONVENIENCE :- [ ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 77 153A. 78 [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECTION 153 IN THE CASE OF A PERSON 79 WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY 2003 THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE THE RETURN OF INCOME IN RE SPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE ( B) IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL SO FAR AS MAY BE APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISH ED UNDER SECTION 139 ; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASS ESSMENT YEARS: 10.1. WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF D CIT VS AGGARWAL ENTERTAINMENT (P) LTD REPORTED IN (2016) 72 TAXMANN .COM 340 (DEL TRIB) DATED 29.6.2016 HAD ADDRESSED THIS ASPECT. THE RELEVANT HEAD NOTES IS REPRODUCED BELOW:- SECTION 153A READ WITH SECTION 143 OF THE INCOM E-TAX ACT 1961-SEARCH AND SEIZURE ASSESSMENT IN CASE OF (IN CASE OF SECTION 143(1) AS SESSMENT)-ASSESSMENT YEAR 2004-05- WHETHER ASSESSMENT IN RESPECT OF WHICH RETURN HAS B EEN PROCESSED UNDER SECTION 143(1) CANNOT BE REGARDED AS PENDING FOR PURPOSE OF SECTIO N 153A AS ASSESSING OFFICER IS NOT REQUIRED TO DO ANYTHING FURTHER ABOUT SUCH A RETURN AND THUS SAID ASSESSMENT CANNOT BE REOPENED IN EXERCISE OF POWER OF SECTION 153A-HELD YES (PARAS 10 AND 12) (IN FAVOUR OF ASSESSEE). 10.2 WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/KOL/2011 DATED 9.12.2 015 REPORTED IN 2016-TIOL-167-ITAT- KOL HAD EXPLAINED THE AFORESAID PROVISIONS AS BELOW:- 6.4. IN OUR OPINION THE SCHEME OF ASSESSMENT PRO CEEDINGS SHOULD BE UNDERSTOOD IN THE FOLLOWING MANNER PURSUANT TO THE SEARCH CONDUCTED U /S 132 OF THE ACT :- A) NOTICE U/S 153A OF THE ACT WOULD BE ISSUED ON THE P ERSON ON WHOM THE WARRANT OF AUTHORIZATION U/S 132 OF THE ACT WAS ISSUED FOR THE SIX ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH AND ASSESSMENTS THEREON WOULD BE COMPLETED U /S 153A OF THE ACT FOR THOSE SIX ASSESSMENT YEARS. B) IN RESPECT OF THE YEAR OF SEARCH NOTICE U/S 143(2) OF THE ACT WOULD BE ISSUED AND ASSESSMENT THEREON WOULD BE COMPLETED U/S 143(3) OF THE ACT. 10 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 C) IN RESPECT OF CONCLUDED ASSESSMENTS PRIOR TO THE YE AR OF SEARCH NO ADDITION COULD BE MADE IN THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCRIMINATI NG MATERIAL IS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE RELEVANT ASSESSMENT YEAR . D) PURSUANT TO THE SEARCH U/S 132 OF THE ACT THE PEND ING PROCEEDINGS WOULD GET ABATED. IN RESPECT OF ABATED ASSESSMENTS THE TOTAL INCOME NE EDS TO BE DETERMINED AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A AND OTHER PROVI SIONS OF THE ACT. 6.4.1. THE CONCLUDED ASSESSMENTS FOR THE PURPOSE O F SECTION 153A OF THE ACT SHALL BE - (I) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY COMPLETED U/S 143(1) AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT HAS EXPIRE D OR; (II ) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREAD Y COMPLETED U/S 143(3) OF THE ACT ; UNLESS THEY ARE REOPENED U/S 147 OF THE ACT FOR SOM E OTHER PURPOSE IN BOTH THE SCENARIOS STATED ABOVE. 6.4.2. THE SCHEME OF ASSESSMENT PROCEEDINGS CONTEMP LATED U/S 153A OF THE ACT ARE TOTALLY DIFFERENT AND DISTINCT FROM THE PROCEEDINGS CONTEMP LATED U/S 147 OF THE ACT AND THESE PROCEDURES OF ASSESSMENT OPERATE IN DIFFERENT FIELD S AND HAVE DIFFERENT PURPOSES TO BE FULFILLED ALTOGETHER. 6.4.3. THE EXPRESSION ASSESS OR REASSESS STATED I N SECTION 153A(1)(B) HAS TO BE UNDERSTOOD AS BELOW:- ASSESS MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF ABATED ASSESSMENT YEARS IRRESPECTIVE OF THE FACT WHETHER THERE ARE ANY INCRIMINATING MATERI ALS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO RELEVANT ASSESSMENT YEARS ; REASSESS MEANS ASSESSMENTS TO BE FRAMED IN RESPEC T OF CONCLUDED ASSESSMENT YEARS WHERE INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH IN RESPECT OF THE RELEVANT ASSESSMENT YEAR. 10.2. WE ALSO FIND THAT RECENTLY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABU L CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HELD 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 DE CISIONS THE LEGAL POSITION THAT EMERGES IS AS UNDER: I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQ UIRING 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 O F 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 RE SPECT 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 S EPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESS MENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED IN COME 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 OTHE R POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE E VIDENCE FOUND IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. 11 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' V) IN ABSENCE OF ANY INCRIMINATING MATERIAL THE COMPL ETED 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 DA TE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO O NE. 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 INCRIMINATI NG MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED I NCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DI SCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 38. THE PRESENT APPEALS CONCERN AYS 2002-03 2005-0 6 AND 2006-07 ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH NO ADDITIONS COULD HAVE BEEN MADE TO TH E INCOME ALREADY ASSESSED. 10.3. WE FIND THAT THE DECISION RELIED UPON BY THE LD DR IN THE CASE OF CIT VS ANIL KUMAR BHATIA REPORTED IN (2013) 352 ITR 493 (DEL) DOES NOT IN ANY MANNER ADVANCE THE CASE OF THE REVENUE AS ADMITTEDLY THE HONBLE DELHI HIGH COURT IN PARA 24 OF ITS ORDER HAD HELD AS UNDER:- 24. WE ARE NOT CONCERNED WITH A CASE WHERE NO INCR IMINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDER SECTION 132 OF TH E ACT. WE THEREFORE EXPRESS NO OPINION AS TO WHETHER SECTION 153A CAN BE INVOKED E VEN IN SUCH A SITUATION. THAT QUESTION IS THEREFORE LEFT OPEN. 10.4. WE FIND THAT THE DECISION OF HONBLE DELHI HI GH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HAD DUL Y CONSIDERED THE DECISIONS OF CIT VS ANIL KUMAR BHATIA REPORTED IN (2013) 352 ITR 493 (D EL) ; CIT VS CHETAN DAS LACHMAN DAS REPORTED IN (2012) 211 TAXMAN 61 (DEL HC) ; MA DUGULA VENU VS DIT REPORTED IN (2013) 215 TAXMAN 298 (DEL HC) ; CANARA HOUSING DE VELOPMENT CO. VS DCIT REPORTED IN (2014) 49 TAXMANN.COM 98 (KAR HC) ; FILATEX INDIA LTD VS CIT REPORTED IN (2014) 229 TAXMAN 555 (DEL HC) ; JAI STEEL (INDIA) VS ACIT REP ORTED IN (2013) 219 TAXMAN 223 (DEL HC) ; CIT VS MURLI AGRO PRODUCTS LTD REPORTED IN (2 014) 49 TAXMANN.COM 172 (BOM HC) ; CIT VS CONTINENTAL WAREHOUSING CORPORATION (NHAVA S HEVA) LTD REPORTED IN (2015) 374 ITR 645 (BOM HC) AND ALL CARGO GLOBAL LOGISTICS LTD VS DCIT REPORTED IN (2012) 137 ITD 287 (MUM ITAT) (SB). HENCE IT COULD BE SAFEL Y CONCLUDED THAT THE DECISION OF HONBLE DELHI HC IN THE CASE OF KABUL CHAWLA SUPRA IS THE LATEST ONE ON THE IMPUGNED ISSUE 12 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 WHICH HAD CONSIDERED THE DECISIONS THAT WERE QUOTED BY THE LD DR AND DISTINGUISHED THE SAME. 10.5. WE FIND THAT THE LD AO HAD ALSO CLEARLY ADMIT TED IN HIS REMAND REPORT THAT THERE WAS NO INCRIMINATING MATERIALS FOUND IN THE COURSE OF S EARCH WITH REGARD TO THE CONCLUDED ASSESSMENT YEARS FOR MAKING SHARE CAPITAL ADDITION AS COULD BE SEEN ABOVE. FOR THE SAKE OF CONVENIENCE THE RELEVANT PORTION OF THE REMAND REP ORT IS REITERATED HEREINBELOW:- THEREFORE IN CASE OF REASSESSMENT REVISIT OF THE S AME ISSUES CAN BE MADE EVEN IF NO INCRIMINATING MATERIALS ARE FOUND ON THAT ISSUE. 10.6. WE FIND THAT THE PROVISIONS OF SECTION 132 OF THE ACT RELIED UPON BY THE LD DR WOULD BE RELEVANT ONLY FOR THE PURPOSE OF CONDUCTING THE SEARCH ACTION AND INITIATING PROCEEDINGS U/S 153A OF THE ACT. ONCE THE PROCEEDINGS U/S 153A OF THE ACT ARE INITIATED WHICH ARE SPECIAL PROCEEDINGS THE LEGISLATURE IN ITS WISDOM BIFURCATES DIFFERENTIAL TREATMENTS FOR ABATED ASSESSMENTS AND UNABATED ASSESSMENTS. AT TH E COST OF REPETITION WE STATE THAT IN RESPECT OF ABATED ASSESSMENTS (I.E PENDING PROCEEDI NGS ON THE DATE OF SEARCH) FRESH ASSESSMENTS ARE TO BE FRAMED BY THE LD AO U/S 153A OF THE ACT WHICH WOULD HAVE A BEARING ON THE DETERMINATION OF TOTAL INCOME BY CONSIDERING ALL THE ASPECTS WHEREIN THE EXISTENCE OF INCRIMINATING MATERIALS DOES NOT HAVE ANY RELEVANCE . HOWEVER IN RESPECT OF UNABATED ASSESSMENTS THE LEGISLATURE HAD CONFERRED POWERS O N THE LD AO TO JUST FOLLOW THE ASSESSMENTS ALREADY CONCLUDED UNLESS THERE IS AN IN CRIMINATING MATERIAL FOUND IN THE SEARCH TO DISTURB THE SAID CONCLUDED ASSESSMENT. IN OUR CONSIDERED OPINION THIS WOULD BE THE CORRECT UNDERSTANDING OF THE PROVISIONS OF SECTION 153A OF THE ACT AS OTHERWISE THE NECESSITY OF BIFURCATION OF ABATED AND UNABATED ASS ESSMENTS IN SECTION 153A OF THE ACT WOULD BECOME REDUNDANT AND WOULD LOSE ITS RELEVANCE . HENCE THE ARGUMENTS ADVANCED BY THE LD DR IN THIS REGARD DESERVES TO BE DISMISSED. 10.7. IN VIEW OF THE AFORESAID FINDINGS AND RESPECT FULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE WE HOLD THAT THE ADDITIONS TOWARDS SHARE APPLICATION MONIES IN THE SUMS OF RS. 20 00 000/- AND RS. 72 00 000/- FOR THE ASST YEARS 2008-09 AND 2009-10 RESPECTIVELY WHICH WERE UNABATED / CONCLUDED ASSE SSMENTS ON THE DATE OF SEARCH DESERVES TO BE UNDISTURBED IN THE ABSENCE OF ANY INCRIMINATI NG MATERIAL FOUND IN THE COURSE OF SEARCH. 13 IT(SS)A NOS. 14 & 15/KOL/2015 MRIDUL COMMODITIES PVT. LTD. AYS 2008-09 & 2009-10 HENCE WE HOLD THAT THE LD AO OUGHT TO HAVE ONLY FOL LOWED THE OLD ASSESSED INCOME EITHER U/S 143(3) OR 143(1) OF THE ACT FOR THE RELEVANT YE ARS. SINCE THE ISSUES ARE ADDRESSED ON PRELIMINARY GROUND OF ABSENCE OF INCRIMINATING MATE RIALS WE REFRAIN TO GIVE OUR FINDINGS ON THE MERITS OF THE ADDITIONS MADE TOWARDS SHARE APPL ICATION MONEY. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT BOTH THE APPEALS OF THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.10.2016 SD/- SD/- (S.S. VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 7TH OCTOBER 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT MRIDUL COMMODITIES PVT. LTD. 4 HO-CHI -MINH SARANI FLAT-1C KOLKATA-700 071. 2 RESPONDENT DCIT CENTRAL CIRCLE-XXI KOLKATA. 3 . THE CIT(A) KOLKATA 4. 5. CIT KOLKATA DR KOLKATA BENCHES KOLKATA / TRUE COPY BY ORDER ASSTT. REGISTRAR .