TaxTMI 
TaxTMI 
2022 (5) TMI 1297
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....d Assessing Officer (hereinafter called "the AO") u/s 153A read with Section 144 of the 1961 Act for ay:2011-12. The assessee has filed Cross Objection(C.O.) bearing number 22/Alld/2017 arising out of ITA No. 103/Alld/2017 for ay: 2011-12. This appeal and the C.O. were heard by Division Bench through video conferencing mode through Virtual Court. 2. The Revenue has raised following grounds of appeal in memo of appeal filed with the tribunal: "1. In view of the facts and circumstances of the case, Ld. CIT(A) has erred in deleting the addition of Rs. 2,50,00,000/- made on account of unexplained ... without appreciating the facts that assessee failed to produce any satisfactory evidence to prove the genuineness during the course of assessment proceedings. 2. In view of the facts and circumstances of the case, Ld. CIT(A) has erred in applying the judgment of Hon'ble Delhi High Court in the case of CIT(Central) Vs. Kabul Chawla reported in 380 ITR 573(Del.) in this case , ignoring the order of jurisdictional High Court in the case of CIT Vs. Raj Kumar Arora (2014) 52 taxmann.com 172(Alld) wherein it was held that AO has power to reassess returns of assessee not only....
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.... is the unsecured loan which the assessee has not shown as loan nor filed evidence of identity , genuineness and creditworthiness of the person. The AO asked the assessee to furnish the evidence of identity, genuineness and creditworthiness of the Shri Ajeya Singh to prove the genuineness of transaction. The AO observed that the assessee has failed to adduce any corroborative evidence in support . The AO observed that the assessee has shown the amount as sundry creditors in the name of Shri Ajeya Singh of Rs.2.50 crore and the assessee has not explained the genuineness of transaction and failed to furnish identity and creditworthiness of Shri Ajeya Singh. The AO observed that the assessee has failed to satisfactory explain the transaction of Rs. 2.50 crore. Thus, the AO held that the amount shown as sundry creditor of Rs. 2.50 crore be treated as unexplained and the AO added the same to be the income of the assessee under the provisions of Section 68 of the 1961 Act, vide assessment order dated 29.03.2016 passed by AO u/s 153A r.w.s. 144 of the 1961 Act. 4. Aggrieved by the assessment order dated 29.03.2016 passed by AO u/s 153A r.w.s. 144 of the 1961 Act, the assessee filed fir....
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....e of incrimination material found during the course of search operations. The assessee relied upon following judicial decisions: 1. Hon'ble Allahabad High Court decision in the case of Commissioner of Income Tax(Central) , Kanpur v. Smt. Shaila Agarwal , reported in (2012)346 ITR 130(Alld. HC) ( (2011) 16 Taxmann.com 232(Alld. HC)) 2. Hon'ble ITAT , Special Bench decision in the case of All Cargo Global Logistics Limited & Ors. v. DCIT , Mumbai , reported in (2012)147 TTJ 513(Mum. SB) 3. Hon'ble Delhi High Court decision in the case of CIT v. Kabul Chawla (2016) 380 ITR 573(Del. HC) On merits of the issue, the assessee submitted before ld. CIT(A) that said Shri Ajay Singh(trade creditor) deposited the amount of Rs. 2,50,00,000/- with the assessee company for purchase of land and not for the purposes of interest. The assessee submitted before ld. CIT(A) that the deposit was made by Shri Ajeya Singh through banking channel , copy of bank statement was enclosed along with confirmation letter of said Shri Ajeya Singh. It was submitted that confirmation letter issued by Sh. Ajeya Singh bears his PAN No. ALUPS0807N. It was submitted that Shri Ajeya Singh bel....
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....Sindhi , Dinesh Kumar Pahuja, Directors and Proprietors of the group on 05-12-2013 and for the impugned ay: 2011-12 no assessment proceedings were pending before the AO on the date of search. Thus, no assessment got abated on the date of search for the year under consideration. The ld. CIT(A) held that keeping in view above factual facts, the AO could have made addition in this year on the basis of incriminating documents relatable to year under consideration found during the course of search. The ld. CIT(A) observed that the assessee filed return of income u/s 139(1) of the 1961 Act , on 30.09.2011, declaring income of Rs. 4,17,790/- along with audit report and the return of income was processed u/s 143(1) of the 1961 Act. The ld. CIT(A) observed that the assessee filed return of income in compliance to notice issued by AO u/s 153A of the 1961 Act on 15.02.2016 declaring income of Rs. 4,17,790/- , as was originally declared in return of income filed u/s 139(1) of the 1961 Act . Thus, the ld. CIT(A) observed that in the instant case, the proceedings had not abated. The ld. CIT(A) referred to decision of Hon'ble Allahabad High Court in the case of Smt. Shaila Agarwal(supra) and deci....
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..../- made by the AO u/s 68 of the 1961 Act, vide appellate order dated 22.02.2017 passed by ld. CIT(A). 5. Now , it was the turn of the Revenue to be aggrieved by appellate order dated 22.02.2017 passed by ld. CIT(A) , who has filed this appeal with tribunal. The assessee has filed C.O. which is mainly in support of the appellate order dated 22.02.2017 passed by ld. CIT(A). We have heard both the rival parties through Video Conferencing mode through Virtual Court. The ld. CIT-DR opened arguments before the Division Bench. The ld. CIT-DR submitted before the Bench that the AO made additions to the income of the assessee to the tune of Rs. 2,50,00,000/- by invoking provisions of Section 68 of the 1961 Act. The ld. CIT(A) deleted the addition on the ground that no incriminating material was found during the course of search and seizure operations conducted by Revenue u/s 132(1) of the 1961 Act, on 05.12.2013. It was submitted that ld. CIT(A) relied upon the decision of Hon'ble Delhi High Court in the case of Kabul Chawla(supra) and deleted the additions. It was submitted by ld. CIT-DR that it is claimed by assessee that it received the aforesaid amount of Rs. 2,50,00,000/- against sa....
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....isions of Section 144 read with Section 153A of the 1961 Act. It was submitted by ld. CIT-DR before the Bench that there is no requirements of issuing notice u/s 143(2) of the 1961 Act ,while framing assessment u/s 153A of the 1961 Act. The ld. CIT-DR relied upon the decision of Hon'ble Madras High Court in the case of B. Kubendran v. DCIT, Chennai, reported in (2021) 126 taxmann.com 107(Mad. HC) to contend that Hon'ble Madras High Court distinguished the decision of Hon'ble Supreme Court in the case of ACIT v. Hotel Blue Moon (2010) 188 Taxman 113/321 ITR 362(SC) and held that no notice u/s 143(2) is required while framing assessment u/s 153A of the 1961 Act. Our attention was drawn by ld. CIT-DR to page 27/paper book filed by assessee to contend that the disclosure made by assessee in its audited financial statement for fy : 2010-11 is under sub-head 'Other' under the head 'Sundry Creditors' amounting to Rs. 2,50,00,000/- under the Schedule:E-Current Liabilities and Provisions, and even the name of the creditor was not disclosed in the financial statements. Thus, it was submitted that it cannot be said that true , proper and complete disclosure was made by the assessee. The ld. C....
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....nced the order. Our attention was drawn to 'Schedule:E of Current Liabilities and Provisions' forming part of audited accounts for fy: 2010-11, placed at page 27/paper book. Our attention was also drawn to page 39/paper book , wherein confirmation letter dated 19.02.2016 issued by Ajeya Singh is placed. Our attention was also drawn to page 40 of paper book , wherein statement of account of Shri Ajeya Singh in the books of the assessee for the period 01.04.2011 to 31.03.2014 is placed. Our attention was also drawn to page 42-43/paper book , wherein bank statement of the assessee for 19.10.2013 to 26.03.2014 are placed, to evidence that the repayment of Rs. 2,50,00,000/- was made by the assessee. Our attention was also drawn to page 44-45/paper book, wherein affidavit of Shri Hemant Kumar Sindhi is placed. It was submitted by ld. Counsel for the assessee before the Bench that there is no evidence brought on record by the AO that cash was deposited by Shri Ajeya Singh before issuing cheque of Rs. 2,50,00,000/- in favour of the assessee. It was submitted that Shri Ajeya Singh belongs to respectable family and is son of Former Prime Minister of India , Shri V.P.Singh. It was submitted t....
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....filed its return of income originally u/s. 139(1) of the 1961 Act, on 30.09.2011 declaring income of Rs. 4,17,790/-. The assessee has claimed that it filed its audited financial statements for fy:2010-11 and audit report , along with the return of income originally filed on 30.09.2011 under the provisions of Section 139(1). The said return of income was stated to have been processed by Revenue under the provisions of Section 143(1) of the 1961 Act. On 05th December 2013, there was search and seizure operations conducted by Revenue under the provisions of Section 132(1) of the 1961 Act , against Mr. Hemant Kumar Sindhi , Shri Dinesh Kumar Pahuja , residential and office premises of Directors, Partners , Proprietor and other entities in the group. The assessee was admittedly searched on 05th December 2013 as part of the searches conducted on Shri Hemant Kumar Sindhi and Shri Dinesh Kumar Pahuja group. Shri Hemant Kumar Sindhi was Director of the assessee company, effective from 06th May , 2011. Thus in nuts-shell , so far as search conducted by Revenue u/s 132(1) against the assessee on 05th December 2013 is concerned, no dispute is raised before us , the effective dispute raised is ....
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....ng issued under the provisions of Section 143(2) of the 1961 Act 3. Whether addition of Rs. 2,50,00,000/- as made by AO which stood deleted by ld. CIT(A), on account of credit of Rs. 2,50,00,000/- being received by assessee from Shri Ajeya Singh through banking channel be sustained? The First issue relates to framing of an assessment based on material which was available at the time of original assessment, while no fresh incriminating material was found relatable to that assessment year in searches conducted by Revenue u/s 132(1) of the 1961 Act. We are presently concerned with ay: 2011-12. The searches were conducted by Revenue u/s 132(1) of the 1961 Act, on 05th December 2013. The claim is made by assessee that no incriminating material was found during the course of search and seizure operations, and the addition of Rs. 2,50,00,000/- was made by the AO to the income of the assessee based on the material available at the time of processing of return of income u/s 143(1) of the 1961 Act, albeit no assessment was framed by Revenue u/s 143(3) of the 1961 Act. It is claimed that return of income was originally filed u/s 139(1) of the 1961 Act by assessee for impugned ay: 2011-12 ,....
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....ny incriminating material being found during search operations relatable to that assessment year, no additions can be made in assessment u/s 153A in the case of assessments which have not been abated. The Revenue on the other hand has relied upon the Hon'ble Jurisdictional High Court decision in the case of Shri Raj Kumar Arora(supra) and in the case of Kesarvani Zarda Bhandar, Sahson(supra), wherein Hon'ble Jurisdictional High Court has taken a view that purpose and purport of framing assessment u/s 153A is to assess or reassess the total income including undisclosed income, and even in the cases where assessment or reassessment proceedings are already completed and assessment orders were passed , which were subsisting when search operations took place, the AO would be competent to reopen the assessment proceedings already made and determine the total income of the tax-payer including undisclosed income, notwithstanding that the assessee has filed the return of income before the date of search which stood processed u/s 143(1)(a) of the 1961 Act. The judgments of Hon'ble Jurisdictional High Court in the case of Shri Raj Kumar Arora(supra) and M/s Kesarvani Zarda Bhandar(supra) are ....
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....Foods Private Limited (2020) 117 taxmann.com 118(SC) b) PCIT v. Devi Dass Garg (2020) 114 taxmann.com552(SC) c) CIT-II v. Continental Warehousing Corporation (Nhava Sheva) Limited (2015) 64 taxmann.com 34(SC) It also observed that Hon'ble Supreme Court vide orders dated 02nd July, 2018 dismissed the SLP filed by Revenue in PCIT v. Meeta Gutgutia ((2018) 96 taxmann.com 468(SC), against the judgment of Hon'ble Delhi High Court in PCIT v. Meeta Gutgutia(2017) 82 taxmann.com 287(Delhi) wherein Hon'ble Delhi High Court held that no additions can be framed u/s 153A for a particular assessment year without there being an incriminating material qua that assessment year which would justify such an addition. However , it is well settled that if SLP is dismissed in limine by Hon'ble Supreme Court , neither it will lead to merger of judgment of Hon'ble High Court with the dismissal of SLP in limine by Hon'ble Supreme Court as doctrine of merger shall not be applicable in such situation , and such dismissal will also not lead to a declaration of law by Hon'ble Supreme Court as envisaged in Article 141 of the Constitution of India. Reference is drawn to decision of Hon'ble S....
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....d 03.11.2015 for compliance on 17th November , 2015. The assessee did not comply with the said notice , dated 03.11.2015 . Thereafter, the AO issued several notices u/s 142(1) , dated 17.11.2015, 30.11.2015, 15.12.2015, 23.12.2015 , 04.01.2016 , 01.02.2016. Thus, admittedly notices u/s 153A as well Section 142(1) was issued by Revenue. The assessee did not file return of income within stipulated time as provided in the notice issued u/s 153A of the 1961 Act. This issue should not detain us for long . The Hon'ble Madras High Court in recent decision in B.Kubendran v. DCIT reported in (2021) 126 taxmann.com 107(Mad. HC), has recently after detailed discussion considering the distinction between provisions of Section 158BC and 153A decided this issue in favour of Revenue , by holding that in framing assessment u/s 153A , due regard must be given to principles of natural justice, which requirement shall stand satisfied either by issuance of notice u/s 143(2) or questionnaire u/s 142(1) was issued by the AO. The Hon'ble Madras High Court distinguished the decision of Hon'ble Supreme Court in the case of Hotel Blue Moon(supra) , which held that notice u/s 143(2) is mandatorily require....
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....rs. The relevant bank statements are filed by assessee in paper book filed with tribunal. It is pertinent to mention that search and seizure operations against the assessee was conducted by Revenue u/s 132(1), on 05th December 2013. Thus, prior to search and seizure operations, the amount was not refunded but was refunded by assessee post search operations, after a gap of more than three years. The assessee has filed confirmatory letter dated 19.02.2016 issued by Shri Ajeya Singh (PAN ALUPS0807N),in which Shri Ajeya Singh confirmed that he advanced Rs. 2,50,00,000/- vide cheque number 000124 drawn on Kotak Mahindra Bank Limited to assessee as advance against land Bungalow No. 21 , Colvin Road, Dr. Ram Manohar Lohia Marg ,Allahabad built over Part of Nazul Plot No. 21/1, Clive Road, Village Chikatpur Nasibpur Bakhtiyara , Allahabad , on 05th July 2010( the amount stood credited in assessee's bank account on 06th July , 2010)(page 39/paper book). The assessee has also filed copy of account of Shri Ajeya Singh in its books of accounts from 01.04.2011 to 31.03.2014(page 40/pb). It is also claimed that Shri Ajeya Singh belongs to highly respectable family being son of Former Prime Minis....
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....of the assessee for any previous year by cumulatively satisfying the AO about the identity and creditworthiness of the creditor and about the genuineness of the transaction, the amount found credited in the books of the assessee shall be treated to be the income of the assessee as unexplained income under legal fiction created by Section 68 of the Act. Section 68 of the Act creates a legal fiction which does not require that the Revenue has to show the sources of the income before bringing the amount to tax since the amount is found to be credited in the books of the assessee in case the assessee has not offered explanation to the satisfaction of the AO. Thus, Section 68 of the Act cast obligation on the assessee where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source of credit thereof or the explanation offered by the assessee is found not satisfactory in the opinion of the AO, the sum so credited may be treated as income and charged to income-tax as income of the assessee of that previous year. The burden/onus is cast on the assessee and the assessee is required to explain to ....
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....on can be considered as insignificant. In our considered view keeping in view the entire factual matrix as is emerging from records, the onus / burden which lay on the assessee is not satisfied . The assessee filed affidavit before ld. CIT(A) of the Director of the assessee , but the ld. CIT(A) did not forwarded the same to AO for remand report/comments. There is breach of Rule 46A of the 1962 Rules. The Hon'ble Supreme Court dealt with this issue in A. Govindarajulu Mudaliar v. CIT [1958] 34 ITR 807, as under: "Now the contention of the appellant is that assuming that he had failed to establish the case put forward "by him, it does not follow as a matter of law that the amounts in question were income received or accrued during the previous year, that it was the duty of the Department to adduce evidence to show from what source the income was derived and why it should be treated as concealed income. In the absence of such evidence, it is argued, the finding is erroneous. We are unable to agree. Whether a receipt is to be treated as income or not, must depend very largely on the facts and circumstances of each case. In the present case the receipts are shown in the acc....
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.... I have gone through the order of my learned Brother Accountant Member and given my deep thought to the reasoning, view and finding of the learned brother however, I could not able to agree and concur with the reasoning, view and finding of learned AM on both the issues raised in the appeal filed by the Revenue and the Cross Objections filed by the assessee. 2. One of the issue is regarding validity of reassessment order passed by the Assessing Officer under section 153A read with section 144 of the Income Tax Act for want of notice issued under section 143(2) of the Income Tax Act. Section 153(A) contemplates that in case of search under section 132 or requisition under section 132A of the Act initiated after 31st May, 2003, the Assessing Officer shall issue notice to searched person requiring him to furnish the return of income in respect of each of six assessment years falling immediately preceding assessment year relevant to the previous year in which such search is conducted or requisition is made. For ready reference under section 153A(1) is quoted as under:- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151....
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....o or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years: (b) The income referred to in clause 9a0 or part thereof has escaped assessment for such year or years; and (c) The search under section 32 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017. Explanation 1.- For the purposes of sub-section, the expression "relevant assessment year" shall mean an assessment year preceding the assessment year relevant to the previous year in which search is conducted or requisition is made which falls beyond six assessment year but not later than ten assessment years from the end of the assessment year rel3evant to the previous year in which search is conducted or requisition is made. Explanation 2.- For the purposes of the fourth provisio, "asset" shall include immovable property being land or building or both, shares and securities, loans and advances, deposits in bank account.' (2) If any proceeding initiated or any order of assessment or reassessment made under subsection (1) has been annulled in appeal or any other lega....
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....r clause 9d) of section 148A, requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, 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 furnished under section 139: Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant specified authority to issue such notice. Explanation 1.- for the purpose of this section and section 148A, the information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment means.- (i) Any information flagged in the case of the assessee for the relevant assessment year in accordance with the risk management strategy formula....
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....ause (a) to section 153A(1) and section 148(1) of the Income Tax Act. Therefore, under both these provisions the return of income is treated as if it is required to be furnished under section 139 of the Income Tax Act. Even otherwise, the proceedings initiated under section 148 as well as under section 153A are for assessment or reassessment of the income of the assessee though the basis of assessment or re-assessment are quite different. The proceedings under section 147/148 are initiated subject to the satisfaction of the conditions prescribed under section 147 of the Act and hence the requirement to form a belief based on some tangible material that income assessable to tax as escaped assessment is a pre-condition whereas the proceedings under section 153A are consequential to the search under section 132 or requisition under section 132A of the Act. The Assessing Officer has the discretion under section 147/148 to initiate as well as to drop the proceedings if he is satisfied after conducting an enquiry or with the reply of the assessee that no income has escaped assessment but the proceedings under section 153A are mandatory in nature and the Assessing Officer is required to a....
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....date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that the Section 158 BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the assessing officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section even speaks of sub- sections which are to be followed by the assessing officer. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the assessing officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section 158 BC(a), the assessing officer must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act. Where the legis....
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....at the expression `so far as may be apply' indicates that it is not expected to follow the provisions of Section 142, subsections 2 and 3 of Section 143 strictly for the purpose of Block assessments. We do not agree with the submissions of the learned counsel for the revenue, since we do not see any reason to restrict the scope and meaning of the expression `so far as may be apply'. In our view, where the assessing officer in repudiation of the return filed under Section 158 BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143. 17) Section 158 BH provides for application of the other provisions of the Act. It reads: "Save as otherwise provided in this Chapter, all the other provisions of this Act shall apply to assessment made under this Chapter." This is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for proceedings for block assessment. The provisions which are specifically included are those which are available in Chapter XIV-B of the Act, which includes Section 142 and sub-sections (2) and (3) of Section 143. 18) O....
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....es for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued." 34. The only benefit that Section 292BB obtains to the assessing officer is that after the issuance of such notice the assessee appears and participates in the proceedings, then he shall not he heard, subject to the proviso to the said section, that he had not been properly served with notice. We have no hesitation in holding that the Assessing Officer can claim and avail the benefit under Section 292BB and the assessee will be burdened by the rigour of estoppel contained therein only after a notice under Section 143(2) had been validly issued. When it is virtually admitted that no such notice had been issued, the Assessing Officer loses even the authority to enter into the jurisdiction under Section 143 and the participation or otherwise of the assessee would be of no avail. It....
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.... it is submitted by the learned counsel that the words "so far as may be" does not give any discretion to the assessing officer to dispense with the requirement of such a notice under Section 143(2), when he proceeds to make an enquiry within the scope and ambit of Section 143(2). It is further contended that after a notice under Section 158 BC is issued, the assessee is required to file a return within a stipulated period. Once the return is filed, it is open to the assessing officer to accept the same or to require further investigation. If he accepts the return of undisclosed income as it is, then, there would be no necessity of issuing any notice under Section 143(2) of the Act. However, if the assessing officer is not satisfied with the return so filed, 8 then he is required to issue further notice under Section 143(2) before an assessment order is passed under Chapter XIV-B of the Act. 7. The only question that arises for our consideration in this batch of appeals is, whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a pre-requisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961? ....
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....ection 142, sub-sections (2) and (3) of section 143 and section 144 shall apply accordingly." 12. Chapter XIV-B provides for an assessment of the undisclosed income unearthed as a result of search without affecting the regular assessment made or to be made. Search is the sine qua non for the Block assessment. The special provisions are devised to operate in the distinct field of undisclosed income and are clearly in addition to the regular assessments covering the previous years falling in the block period. The special procedure of Chapter XIV-B is intended to provide a mode of assessment of undisclosed income, which has been detected as a result of search. It is not intended to be substitute for regular assessment. Its scope and ambit is limited in that sense to materials unearthed during search. It is in addition to the regular assessment already done or to be done. The assessment for the block period can only be done on the basis of evidence found as a result of search or requisition of books of accounts or documents and such other materials or information as are available with the assessing officer. Therefore, the income assessable in Block assessment under Chapter XIV....
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....(b) of Section 158 BC by referring to Section 143(2) and (3) would appear to imply that the provisions of Section 143(1) are excluded. But Section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under Section 143(2). However, if an assessment is to be completed under Section 143(3) read with Section 158-BC, notice under Section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that the Section 158 BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the assessing officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section even speaks of subsections which are to be ....
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....notice the observations made by this Court in the case of Maganlal Vs. Jaiswal Industries, Neemach and Ors., [(1989) 4 SCC 344], wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression `as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied." 8. A consistent view has been taken by the Hon'ble High Court of Kerela as well as Hon'ble Calcutta High Court that the issuance of notice under section 143(2) of the Act is mandatory if the Assessing Officer seeks not to accept any part of the return as furnished by the assessee or make an assessment order contrary thereto and even in course of reassessment the notice under section 143(2) cannot be dispensed with. The proceedings under section 153A read with section 143/144 of the Act are in the nature of reassessment in the case in hand and therefore, a valid notice under section 143(2) is a mandatory requirement before passing the assessment order. The non iss....
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....ent of issuing the notice under section 143(2) cannot be satisfied by issuing notice under section 142(1). Sub section (2) of section 153A also contemplate the situations where the proceedings or any order of assessment or reassessment under section 153A(1) is annulled in appeal or other legal proceedings then the assessment or reassessment which got abated by virtue of such search shall stand revived. Thus it is clear that the possibility of assessment or re-assessment under section 153(A) being declared invalid and consequently quashed is not ruled out by the Legislature which means non satisfaction of the mandatory conditions for framing the assessment or reassessment under section 153A would result annulment of such order passed by the Assessing Officer. Accordingly, in view of the above discussion, the order passed by the Assessing Officer under section 153A read with section 144 of the Act is invalid and liable to be quashed. 10. The another issue involved in the appeal of the Revenue and the cross objection of the assessee is regarding the addition made by the Assessing Officer of Rs. 2.5 Crores under section 68 of the Income Tax Act on account of sundry creditors shown b....
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....to the search does not mean that the Assessing Officer shall always make an addition to the total income declared by the assessee. The Hon'ble Rajasthan High Court in case of Jai Steel India vs. ACIT 219 taxman 223 has considered this issue in para 22 to 30 reads as under:- "22. In the firm opinion of this Court from a plain reading of the provision alongwith the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. Though such a claim by the assessee for the first time under Section 153A of the Act is not completed, the case in hand, has to be considered at best similar to a case....
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....he non obstante clause with which sub section (1) of Section 153A opens. The time-limit within which the notice under Section 148 can be issued, as provided in Section 149 has also been made inapplicable by the non obstante clause. Section 151 which requires sanction to be obtained by the Assessing Officer by issue of notice to reopen the assessment under Section 148 has also been excluded in a case covered by Section 153A. The time-limit prescribed for completion of an assessment or reassessment by Section 153 has also been done away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. 21. Now there can be cases where at the time when the search is initiated or requisition is made, the assessment or reassessment proceedings relating to any assessment year falling within the period of the six assessment years mentioned above, may be pending. In such a case, the second proviso to sub section (1) of Section 153A says that s....
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....ome that escaped assessment are clubbed together and assessed as the total income. In such a case, to reiterate, there is no question of any abatement of the earlier proceedings for the simple reason that no proceedings for assessment or reassessment were pending since they had already culminated in assessment or reassessment orders when the search was initiated or the requisition was made." (emphasis supplied) 24. The said judgment also in no uncertain terms holds that the reassessment of the total income of the completed assessments have to be made taking note of the undisclosed income, if any, unearthed during the search and the income that escaped assessments are required to be clubbed together with the total income determined in the original assessment and assessed as the total income. The observations made in the judgment contrasting the provisions of determination of undisclosed income under Chapter XIVB with determination of total income under Sections 153A to 153C of the Act have to be read in the context of second proviso only, which deals with the pending assessment/reassessment proceedings. The further observations made in the context of de novo assessment proceeding....
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....econd Proviso to Section 153A in a manner that where the assessment or reassessment proceedings are complete, and the matter is pending in appeal in the Tribunal, the entire proceedings will abate. 20. There is another aspect to the matter, namely that the abatement of any proceedings has serious causes and effect in as much as the abatement of the proceedings, takes away all the consequences that arise thereafter. In the present case after deducting bogus gifts in the regular assessment proceedings, the proceedings for penalty were drawn under Section 271 (1)(c) of the Act. The material found in the search may be a ground for notice and assessment under Section 153A of the Act but that would not efface or terminate all the consequence, which has arisen out of the regular assessment or reassessment resulting into the demand or proceedings of penalty." (emphasis supplied). The said judgment which essentially deals with second proviso to Section 153A of the Act also supports the conclusion, which we have reached hereinbefore. 28. It has been observed by the Hon'ble Supreme Court in K.P. Varghese v. Income Tax Officer : (1981) 131 ITR 597 that "it is wel....
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....the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously ....
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....t proceedings. Therefore, when the assessments were not pending on the date of search, the same can be interfered with by the Assessing Officer while making the assessment under section 153A only on the basis of some incriminating material found during the course of search or requisition disclosing undisclosed income or discovery of property which were not produced or disclosed by the assessee in the original assessment. The Hon'ble Delhi High Court reiterates its view in the case of Pr. CIT vs. Kurli Paper Mills 380 ITR 571 in para 1 to 3 which reads as under:- "1. The Revenue has filed the appeal against an order dated November, 14, 2014 passed by the Income Tax Appellate Tribunal ("the I.T.A.T.") in 3761/Del/2011 pertaining to the assessment year 2002-03. The question was whether learned Commissioner of Income Tax (Appeals) had erred in law and on the facts in deleting the addition of Rs. 89 Lakhs made by the Assessing Officer under section 68 of the Income Tax Act, 1961 ("the Act") on bogus share capital. But the issue was whether there was any incriminating material whatsoever found during the search to justify the initiation of proceedings under section 153A. ....
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....rlier AYs was considered both in CIT v. Anil Kumar Bhatia (supra) and CIT v. Chetan Das Lachman Das (supra). Incidentally, both these decisions were discussed threadbare in the decision of this Court in Kabul Chawla (supra). As far as CIT v. Anil Kumar Bhatia (supra) was concerned, the Court in paragraph 24 of that decision noted that "we are not concerned with a case where no incriminating material was found during the search conducted under Section 132 of the Act. We therefore express no opinion as to whether Section 153A can be invoked even under such situation". That question was, therefore, left open. As far as CIT v Chetan Das Lachman Das (supra) is concerned, in para 11 of the decision it was observed: "11. Section 153A (1) (b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or Information available with the Assessing Officer which can be related ....
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.... "22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material; and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made." 34. The argument of the Revenue that the AO was free to disturb income de hors the incriminating material while making assessment under Section 153A of the Act was specifically rejected by the Court on the ground that it was "not borne out from the scheme of the said provision" which was in the context of search and/or requisition. The Court also explained the purport of the words "assess" and "reassess",....
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.... which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar....
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....ions 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub- section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any ....
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....tal income of the assessee which would include income declared in the returns, if any, furnished by the assessee as well as undisclosed income, if any, unearthed during the search or requisition. In case where a pending reassessment under section 147 of the Act has abated, needless to state that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of an the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as. the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year....
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....l Chawla (supra). The decision of this Court in Pr. Commissioner of Income Tax v. Kurele Paper Mills P. Ltd. (supra) which was referred to in Kabul Chawla (supra) has been affirmed by the Supreme Court by the dismissal of the Revenue's SLP on 7th December, 2015. 64. That brings us to the decision in Dayawanti Gupta (supra). As rightly pointed out by Mr. Kaushik, learned counsel appearing for the Respondent, that there are several distinguishing features in that case which makes its ratio inapplicable to the facts of the present case. In the first place, the Assessees there were engaged in the business of Pan Masala and Gutkha etc. The answers given to questions posed to the Assessee in the course of search and survey proceedings in that case bring out the points of distinction. In the first place, it was stated that the statement recorded was under Section 132(4) and not under Section 133A. It was a statement by the Assessee himself. In response to question no. 7 whether all the purchases made by the family firms, were entered in the regular books of account, the answer was: "We and our family firms namely M/s Assam Supari Traders and M/s Balaji Perfumes gener....
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....306/2017. 68. In para 23 of the decision in Dayawanti Gupta (supra), it was observed as under: "23. This court is of opinion that the ITAT's findings do not reveal any fundamental error, calling for correction. The inferences drawn in respect of undeclared income were premised on the materials found as well as the statements recorded by the assessees. These additions therefore were not baseless. Given that the assessing authorities in such cases have to draw inferences, because of the nature of the materials - since they could be scanty (as one habitually concealing income or indulging in clandestine operations can hardly be expected to maintain meticulous books or records for long and in all probability be anxious to do away with such evidence at the shortest possibility) the element of guess work is to have some reasonable nexus with the statements recorded and documents seized. In tills case, the differences of opinion between the CIT (A) on the one hand and the AO and ITAT on the other cannot be the sole basis for disagreeing with what is essentially a factual surmise that is logical and plausible. These findings do not call for interference. The second qu....
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....essment proceedings already made and determining the total income of the assessee. The Assessing Officer while exercising the power under section 153A would make assessment and compute the total income of the assessee including undisclosed income notwithstanding the assessee has filed return of income before the date of search which stood processed under section 143(1)(a) of the Act. Therefore, the Hon'ble High Court has held that the Assessing Officer has power to re-assess return of income of the assessee not only for undisclosed income which was found during the search operation but also with regard to the material that was available at the time of original assessment. That finding of the Hon'ble High Court is in the context of assessing the total income of the assessee which includes undisclosed income and disclosed income both. Therefore, the income which can be assessed during the proceedings under section 153A of the Act must be undisclosed unearthed during the course of search and seizure action, the disclosed income as declared in the return of income as well as the income which has escaped assessment and came to light during the course of search and seizure action....
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....t by : Shri Ramendra Kumar Vishwakarma CIT-DR ORDER A reference u/s 255(4) of the Income Tax Act, 1961 (hereinafter also called as 'the Act') has been made by the Hon'ble President, ITAT for my opinion as Third Member in the captioned appeals for the Assessment Year 2011-12. 2. The ld. AM, who first wrote his opinion, proposed the following questions as reflecting the points of difference requiring consideration by the Third Member: 1. Whether in the facts and circumstances of the case, notice u/s 143(2) is mandatory while framing assessment u/s 153A of the Income-tax Act, 1961, or otherwise whether on the facts of the instant case issuance of either of the Notice u/s. 143(2) or 142(1) of the 1961 Act will lead to substantial compliance before framing assessment u/s 153A of the 1961 Act, moreso keeping in view the ratio of decisions of Hon'ble High Court of Madras in the case of B. Kubendran v. DCIT reported in (2021) 126 taxmann.com 107 (Mad. HC), Hon'ble High Court of Delhi decision in the case of Ashok Chaddha v. ITO (2012) 20 taxmann.com 387 (Del. HC), Hon'ble High Court of Punjab and Haryana in the case of Tarsem Singla v. DCIT (2017) 81 taxmann.com 347....
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.... in the assessment relating to any assessment year falling within the period of six assessment years as prescribed u/s 153A of the Act which is not pending on the date of initiation of the search? c. Whether on the facts and in law, the ld. CIT(A) was justified in deleting the addition rather than restoring the matter to the Assessing Officer for a fresh decision? 5. The matter was adjourned for 07.04.2022 and it was advised that either party may propose modifications or alterations in the above questions. On the scheduled date, both the sides were consensus ad idem that the above questions reflected the controversy reflecting the difference between the Hon'ble Members who initially heard the appeal. As such, I am proceeding to dispose off the above three questions in seriatim. 6.1. Succinctly, the factual matrix of the case is that the assessee is engaged in the business of real estate. A search and seizure action was taken up against the assessee on 5.12.2013. A notice dated 05.09.2014 was issued by the Assessing Officer (AO) u/s 153A of the Act requiring the assessee to furnish its return of income. The assessee filed return for the year under consideration on ....
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....he position can be compared with a regular assessment u/s 143(3) etc., which takes place in both the circumstances of the assessee having furnished or not furnished its return of income. If a return is already filed, the assessment can be espoused straight away and completed. On the other hand, if no return has been filed, then firstly, a return has to be called for by issuing notice u/s 142(2)(i). It is only when the return is either suo motu filed or in response to notice u/s 142(1)(i) that the case becomes ripe for undergoing assessment. Thereafter, a notice u/s 143(2) is required to be issued if the AO `considers it necessary or expedient to ensure that the assessee has not understated the income' in the return. The point to be noted is that making assessment of all the returns filed is not necessary. It is only in some of the returns where the AO considers it necessary or expedient to ensure that the assessee has not understated the income, that he takes up the assessment after first, acquiring jurisdiction by issuing notice u/s 143(2). It, therefore, follows that whereas the filing of return by the assessees having income chargeable to tax etc. is essential, but making the as....
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.... omission on the part of AO to issue such notice would render the order void. However, it is apt to note that the provision under consideration of the Hon'ble Apex Court was section 158BC. Clause (b) of section 158BC expressly provides that "the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply". It is ostensible from the language of section 158BC(b) that section 143(2) has expressly been made applicable to block assessment u/s 158BC. However, no parallel reference to section 143(2) has been made in section 153A. A contention similar to the one raised before the Tribunal was also made before the Hon'ble Delhi High Court in Ashok Chaddha vs. ITO (2011) 337 ITR 399 (Del). Repelling such a contention, the Hon'ble Delhi High Court has categorically laid down that the issuance of notice u/s 143(2) is not a requirement for completing the assessment u/s 153A. While holding so, the Hon'ble Delhi High Court also considered the judgment of Hon'ble Supreme Court in the case of H....
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....e course of search, can be made in the assessment relating to any assessment year falling within the period of six assessment years as prescribed u/s 153A of the Act which is not pending on the date of initiation of the search. 7.2. Tersely stated, the return for the assessment year 2011-12 was originally filed by the assessee on 30.09.2011. Though no scrutiny assessment was made u/s 143(3), but the return was processed u/s 143(1) and the time for issuing notice u/s 143(2) expired on 30.09.2012. As against that, the search and seizure action was taken up on 05.12.2013 i.e. after the lapse of period for issuing notice u/s 143(2). No incriminating material connected with the addition of Rs.2.50 crore was found during the course of search. The assessee contended before the ld. CIT(A) that the AO was debarred from making the addition in such circumstances. The ld. CIT(A) accepted the assessee's contention. When the matter travelled to the Tribunal, the ld. AM relied on certain decisions of the Hon'ble jurisdictional High Court to jettison the assessee's contention urging to limit the scope of assessment proceedings u/s 153A only to the incriminating material found during the cour....
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....ctional High Court in CIT & Ors. vs. Kesarwani Zarda Bhandar Sahson & Ors. (2016) 97 CCH 0377 (All HC). The Hon'ble Kerala High Court in E.N. Gopakumar vs. CIT (2016) 390 ITR 131 (Ker) was confronted with the similar issue in which the assessee relied on the judgments favouring it including Kabul Chawla (supra) and Continental Warehousing Corporation (supra). The Hon'ble High Court preferred to go with the view against the assessee. 7.5. Ongoing through the above position, it is lucid that there are two schools of thought on this issue. Por una parte, the view of the Hon'ble jurisdictional High Court and some other Hon'ble High Courts in favaour of the Revenue is that the scope of the unabated (already completed) assessments u/s 153A of the Act is not confined only to the incriminating material found during the course of search but also to the already declared particulars; por otra parte some other High Courts including the Hon'ble Delhi High Court have canvassed a view in favour of the assessee by holding that the completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed durin....
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.... be followed for two reasons viz., first, the ratio of the decision is not applicable to the facts of the case and second, the Hon'ble Supreme Court has overruled it by upholding the contrary view of the Hon'ble Delhi High Court in the case of Meeta Gutgutia (supra). 7.9. The first raison d'etre was elaborated by stating that the proposition laid down in Rajesh Kumar Arora (supra) is that the AO has power to reassess the return of income of assessee not only for the undisclosed income which was found during the course of search but also the income with regard to the material that was already available on record. Relying on the judgment of Hon'ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. (2011) 331 ITR 236 (Bom), the ld. AR contended that the existence of some undisclosed income emanating from the incriminating material is a pre-requisite for assessing further income w.r.t. the material already available on record. If no addition on account of any undisclosed income is made, the AO would be debarred from making any addition on the basis of material already on record. It was submitted that since the assessee had already declared the creditor of Rs.2.50 cro....
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....nsaction and the assessee failed to prove the genuineness of this gift. That was the only reason with the AO to make the addition while completing assessment u/s 153A. The assessee contended before the higher authorities that the transaction of gift was duly recorded. The Tribunal deleted the addition on the ground that the subject matter of the addition was a gift received by the assessee and no incriminating material in relation to such gift was found during the course of search. The Revenue raised the following substantial questions of law as arising from the Tribunal order: "1. Whether ITAT has erred in law in dismissing the appeal of the department and holding that no addition can be made for gift in assessment completed under section 153A unless some incriminating material was found during the course of search, thus ignoring the provisions of law as contained in section 153A which required the Assessing Officer to assess or reassess the total income as defined in section 2(45) of the Income Tax Act, 1961. 2. Whether the order of the ITAT is perverse in as much as it has ignored the provisions of law as contained in proviso (b) of sub-sec.(1) of section 153A ....
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....ld. AR on this score as sans merit. 7.13. The second contention put forth by the ld. AR was that the decision of the Hon'ble jurisdictional High Court on the point stands overruled by the judgment of Hon'ble Supreme Court in Pr.CIT vs. Meeta Gutgutia (2018) 257 Taxman 441 (SC). I find it relevant to mention that the Hon'ble Delhi High Court in Meeta Gutgutia (supra) followed the view taken in Kabul Chawla (supra). The Revenue preferred Special Leave Petition before the Hon'ble Supreme Court, which came to be dismissed. 7.14. Article 136 of the Constitution of India with the marginal note "Special leave to appeal by the Hon'ble Supreme Court" provides that: `(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.' This Article deals with the discretion of the Hon'ble Supreme Court in granting special leave to appeal from any judgment. Once a SLP is filed, the Hon'ble Supreme Court may either grant the special leave to appeal or dismiss it. In case, ....
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....Larger Bench of the Hon'ble Supreme Court in Khoday Distilleries Ltd. and Ors. Vs. Sri Mahadeshwara SSK Ltd. (Civil Appeal No.2432/2019 arising out of SLP No.490/2012) has reiterated similar view vide its judgment dated 01.03.2019. On an overview of the legal position emanating from the above judgments, it becomes sparklingly clear that the dismissal of a SLP with remarks, such as, "Special Leave Petition is dismissed on merits" or "Dismissed on merits" does neither amount of any declaration of law by the Hon'ble Supreme Court magnetizing Article 141 of the Constitution nor lead to the merger of the judgment impugned in the special leave petition. 7.15. I advert to the decision in Meeta Gutgutia (supra), which is the trump card of the ld. AR for bolstering the proposition that the view of the Hon'ble jurisdictional High Court in Rajesh Kumar Arora (supra) has been overruled by the Hon'ble Summit Court. The same has been reported as Pr.CIT vs. Meeta Gutgutia (2018) 257 Taxman 441 (SC) with its full text reading as under: "1. Delay condoned. 2. We do not find any merit in this petition. The special leave petition is, accordingly, dismissed. 3. Pe....
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....y of hearing to the assessee. The ld. JM countenanced the deletion of the addition on the two legal issues discussed above, viz., the failure of the AO to issue notice u/s 143(2) before making assessment u/s 153A and the addition being not based on any incriminating material. Neither did he go into the merits of the addition, nor record his disagreement with the ld. AM on the issue of restoration of the matter to the AO. In the absence of any difference of opinion between the ld. Members on this issue, a fortiori, is that the view taken by the ld. AM restoring the matter to the AO for fresh decision will prevail as the same has not been dissented with by the ld. JM. I answer this question in negative by holding that the ld. CIT(A) was not justified in deleting the addition. Rather he should have restored the matter to the file of AO. 9. The Registry of the Tribunal is directed to list this matter before the Division Bench for passing an order in accordance with the majority view. PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: Since there was a difference of opinion between the ld. Members constituting the Division Bench of Income Tax Appellate Tribunal, Allahabad Bench, Allahab....