TaxTMI 
TaxTMI 
2024 (1) TMI 1422
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....issues are involved, all these cases are being disposed off by this consolidated order. 3. With the consent of both the parties, the case of the assessee, Shri Ashish Jain in ITA No. 352/Chd/2023 pertaining to A.Y. 2012-13 was taken as a lead case wherein the assessee has taken the various grounds of appeal: "1. That the Ld. CIT(A) has erred in confirming the order of Assessing Officer in making the addition of Rs. 87,04,733/- on account of long term capital gain on sale of shares, which was claimed to be exempt u/s 10(38), amounting to Rs. 87,04,733/- 2. That the Ld.CIT(A) has failed to appreciate that during the course of search of the assessee, no incriminating evidence in respect of dealing on such shares have been found and the recent judgment of Hon'ble Apex Court in the case of 'PCIT-III Vs. Abhisar Buildwell Pvt. Ltd.' in Civil Appeal No. 6580/2022 delivered on 24.04.2023 have not been considered properly by the Ld. CIT(A) and, as such, since no incriminating evidence was found during the course of search of the assessee and hence the addition of Rs. 87,04,733/-was not called for. 3. That the Ld. CIT(A) has confirmed the order of As....
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....gain on merits have been deleted. 9. That the confirmation of addition on the basis of human probability/surrounding circumstances was uncalled for and against the documentary evidences furnished by the assessee and, as such, the very basis of making the addition is uncalled for. 10. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off." 4. Briefly the facts of the case are that the assessee filed his original return of income declaring total income of Rs. 6,77,053/- on 29/09/2012 and in the return of income so filed, the assessee has claimed exemption towards Long Term Capital Gain (LTCG) under section 10(38) amounting to Rs. 87,04,733/-. The return of income was thereafter processed under section 143(1) and thereafter, no notice under section 143(2) was issued within the statutory time period. 4.1 Subsequently, search and seizure operation under section 132(1) were carried out at the residential and business premises of M/s Jain Amar Clothing Pvt. Ltd. Group of cases on 26/02/2016 and the assessee premises were also searched on the said date. Thereafter, the case of the assessee was centra....
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....referred to the statement of Shri Suresh Khemka, the broker through which the share of M/s Maple Goods (P) Ltd. were purchased by the assessee which was recorded on oath on 13/03/2015 by Investigation wing, Kolkata wherein he has admitted that he has issued kachha panna (purchase contract notes) of M/s Maple Goods (P) Ltd. and the name of the assessee found mentioned in the list of the client to whom said contract notes have been issued. 4.6 The AO thereafter referred to the financial data of M/s Maple Goods (P) Ltd. and stated that the credentials of M/s Mapple Goods Pvt. Ltd. were not satisfactory as it has no fixed assets, no turnover, no profitability and accordingly, a show cause was issued to the assessee stating that from the aforesaid discussion, it is clear that M/s Mapple Goods Pvt. Ltd. and M/s Access Global Ltd. are penny stocks and identity and credentials of both are suspicious in nature and why the LTCG claimed of Rs. 87,04,733/- should not be treated as bogus and added under Section 68 of the Act. 4.7 In response to show cause notice, the assessee submitted as under: * That he has purchased 1700 equity shares of M/s Maple Goods (P) Ltd. in F.Y. 2010-1....
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....erusal of the contents mentioned at page No. 1 to 182 of Annexure - A seized from Locker No. 194, HDFC Bank shows that the character of certificate is itself incriminating as it has been issued by unauthorized brokers indulging into illegal trading. The AO accordingly held that the LTCG income of Rs. 87,04,733/- disclosed in the return of income by Shri Ashish Jain in reality represented introduction of assessee's unaccounted money, that the assessee's alleged transaction of purchase and sale of shares were not real, that the assessee has only attempted to present as fact that the amount received from the stock broker represented sale proceeds of shares, however, in reality, there was no genuine or bonafide purchase and sale of shares and the assessee's claim of LTCG with respect of trading of shares in M/s Maple Goods (P) Ltd. and M/s Access Global Ltd. amounting to Rs. 87,04,733/- was treated as bogus and added to the total income of the assessee treating the same as unexplained cash credit under Section 68 of the Act. 5. Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A). 5.1 During the course of appellate proceedings, it was submitted that th....
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....of any incriminating material found during the course of search. 5.6 It was further submitted that the completed assessment can be interfered with by the AO while making the assessment under section 153A only on the basis of some incriminating material unearthed during the course of search which is clearly absent in the present case. Regarding finding of the AO that the character of certificate as found in the locker is itself incriminating material as it has been issued by the unauthorized broker indulging into an illegal trading, it was submitted that it is only an allegation and that the AO has not brought any material on record to prove this contention. 5.7 It was further submitted that the AO has not uttered a single word that all the relevant documents from page No. 1 to 34 and page 180 to 182 of Annexure A represent the transactions which were duly recorded in the records / books of the assessee. All these transactions are routed through banking channels. All these transactions are reflected in the computation chart and the return of income which has been duly filed in accordance with law. It was submitted that the said broker was an authorized broker of Calcutta Stock....
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....t the AO has made the additions for the sake of additions which are not permitted in the eyes of law. Even the correct facts of the case have not been given in the assessment order; rather distorting facts have been mentioned in the assessment order. The arguments given to the AO during the proceedings have also not been considered. The AO has also tried to distort the facts by making allegations, which are simply allegations and no documentary evidences have been placed on records. 5.10 It was further submitted that the following facts are to be considered while calculating the long term capital gains: a) The shares of Maple Goods Private Limited Company were purchased in the assessment year 2011-12 through banking channels and the same has not been doubted by the AO. This clearly shows that the purchase of shares is genuine. b) There was complete amalgamation of the Maple Goods Pvt. Ltd. made through Calcutta High Court and the AO has not uttered a single word on this issue. c) The shares of Access Global Limited were allotted to the assessee as per the Calcutta High Court orders. The shares were received by the assessee in Demat Account. This fact h....
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....(38) of the Income Tax Act, 1961. It was accordingly requested to accept the contention of the assessee and delete the addition made under the wrong notion of Law. 6. The submissions so filed by the assessee alongwith the documents placed on record, were thereafter sent by the ld CIT(A) to the AO for seeking his comments. 6.1 Regarding the assessee's contention that in absence of any incriminating material, the assessment completed under section 153A r.w.s 143(3) was illegal, the AO in his remand report submitted that the same cannot be accepted and pointed out that at pages No. 01 to 34 and 180 to 182 of Annexure-A seized from locker No. 194, HDFC Bank, Ludhiana, contains details of share for which bogus LTCG has been claimed by the assessee and which were confronted to the assessee in detailed show cause dt. 14/09/2017. It was stated by the AO that the above documents reflect that the assessee was in possession of the shares which has later on been utilized for bogus LTCG claim on sale of share under section 10(38) of the Act. It was stated that the share of M/s Maple Goods (P) Ltd. were purchased through broker Shri S.K. Khemka is clear from the seized record. It was state....
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....chase and sale price have already been mentioned therein and the assessment was duly framed under section 143(1) of the Act and thus it was a case of an unabated assessment. 7.1 It was submitted that the said disclosed income / documents cannot be treated as incriminating material. It was further submitted that there is no evidence or document which was found or noticed to suggest any receipt outside the books of accounts and the said capital gain has been duly reflected in the computation of income and the purchase of the shares were made through banking transactions as per copy of the HDFC Bank duly submitted and placed on record. It was further submitted that even the copy of account duly confirmed from the books of Shri S.K. Khemka was furnished to the AO for the A.Y. 2011-12 where the said payment of cheque for the purchase of shares have duly been recorded. It was accordingly submitted that the assumption that there is an incriminating material deducted as a result of search on the applicant is entirely misconceived, misplaced and wholly untenable. 7.2 It was submitted that the assessment for A.Y 2011-12 stood completed wherein no adverse inference has been drawn in thi....
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....FC Bank on the basis of which bogus LTCG have been claimed by the assessee. It was held by the Ld. CIT(A) that the said documents are incriminating in nature as they have a direct bearing on the estimation of correct income of the assessee. 8.2 It was further stated by the Ld. CIT(A) that statement of the broker, Shri Suresh Kumar Khemka was recorded on oath on 13/03/2015 by Investigation Wing, Kolkata in which the said broker admitted providing bogus LTCG entries to the assessee. The said statement was corroborated by the evidence in nature of shares seized during the course of search. Thereafter the Ld. CIT(A) referred to an article published in Taxman and stated that the documents seized from the assessee i.e, share certificates and contract bills have been used to understate the income and were only a device based on misrepresented facts, hence they fall in the definition of incriminating material. Thereafter referring to the decision of Hon'ble Supreme Court in the case of PCIT Vs. Abhisar Buildwell Pvt. Ltd. in Civil Appeal No. 6580 of 2021 dt. 24/04/2023, it was stated by the Ld. CIT(A) that in case any incriminating material is found during the course of search, the AO c....
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....re certificates and contract notes on account of purchase of shares of M/s Maple Goods (P) Ltd. which was found from the locker of Shri Sunil Kumar Jain, father of the assessee is in the nature of incriminating material. It was submitted that firstly, the said share certificates and contract notes were not found from the possession of the assessee. Secondly, the share certificates and the contract notes relating to purchase of shares cannot be anyway an incriminating material. Rather the said documents support the case of the assessee that the purchase of shares is genuine and is backed by proper documents. Further regarding the various statements of Shri S.K. Khemka and Shri Sunil Kumar Kayan, and other persons referred to by AO as well as by the Ld. CIT(A), it was submitted that the said statements have nothing to do with the search proceedings of the assessee as these were recorded during their respective investigation proceedings way back in the year 2015 and the statements were any way recorded at the back of the assessee and no opportunity to cross examine was ever given to the assessee. 10.4 It was further submitted that the statement recorded during the course of search ....
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....le Supreme Court. Further, our particular reference was drawn to decisions in case of Pr. CIT Vs. Shardaben Arvindbhai Patel [2023] 152 Taxmann.com 535 (Guj HC) and Pr. CIT Vs. Ms. Kavita Agarwal [2022] 143 Taxmann.com 404 (Del HC) wherein the said principle has been followed by the Hon'ble Gujarat and Delhi High Court in context of long term capital gains on sale of shares. 11. In his submissions, the ld CIT/DR submitted that it is a clear case where incriminating material has been found during the course of search in terms of share certificates and the contract notes. It was submitted that both the AO as well as the Ld. CIT(A) have recorded a categorical finding that the incriminating material has been found and seized during the course of search. In this regard our reference was drawn to the show cause issued by the AO wherein he has specifically referred to pages No. 1 to 34 and 180 to 182 of Annexure-A sized from Locker No. 194, HDFC Bank, Ludhiana. It was submitted that the contents of the documents so found and seized from the Locker clearly shows that the assessee has purchased the shares of M/s Maple Goods (P) Ltd. through the broker Shri S.K. Khemka. It was further sub....
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....ly sustained by the ld CIT(A) and the same should be confirmed. 12. We have heard the rival contentions and perused the material available on the record. In case of Pr. CIT Vs. Abhisar Buildwell (P) Ltd. (supra), the question for consideration before the Hon'ble Supreme Court was whether in respect of completed / unabated assessment, any addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A or not. The relevant discussions and the legal preposition so laid down by the Hon'ble Supreme Court are contained in para 5 to 14 of its judgment which read as under: "5. We have heard learned counsel for the respective parties at length. The question which is posed for consideration in the present set of appeals is, as to whether in respect of completed assessments/unabated assessments, whether the jurisdiction of AO to make assessment is confined to incriminating material found during the course of search under section 132 or requisition under section 132A or not, i.e., whether any addition can be made by the AO in absence of any incriminating material found during the ....
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..... 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 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., thos....
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....ome 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 assessment year which had abated under the second proviso would stand revived. The proviso thereto says, that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the, six assessment years prior to th....
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....te 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." 8. For the reasons stated hereinbelow, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra), taking the view that no addition can be made in respect of completed assessment in absence of any incriminating material. 9. While considering the issue involved, one has to consider the object and purpose of insertion of Section 153A in the Act, 1961 and when there shall be a block assessment under section 153A of the Act, 1961. 9.1 That prior to insertion of Section 153A in the statute, the relevant provision for block assessment was under section 158BA of the Act, 1961. The erstwhile scheme of block assessment under section 158BA envisaged assessment of 'undisclosed income' for two reasons, firstly that there were two parallel assessments envisaged under the erstwhile regime, i.e., (i) block assessment under section 158BA to assess the 'undi....
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....o such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect 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 furnished under section 139; b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132-A, as the case may be, shall abate. (2) If any pr....
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....rs period/block assessment period. The intention does not seem to be to reopen the completed/unabated assessments, unless any incriminating material is found with respect to concerned assessment year falling within last six years preceding the search. Therefore, on true interpretation of Section 153A of the Act, 1961, in case of a search under section 132 or requisition under section 132A and during the search any incriminating material is found, even in case of unabated/completed assessment, the AO would have the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material collected during the search and other material which would include income declared in the returns, if any, furnished by the assessee as well as the undisclosed income. However, in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act, subject to fulfillment of the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy. Therefore, even in c....
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....mes the jurisdiction for block assessment under section 153A; (ii)all pending assessments/reassessments shall stand abated; (iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and (iv)in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and ....
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....eld by the Bombay High Court that no addition can be made in respect of the assessment that has become final in the absence of incriminating material found during the course of search. The Bombay High Court referred to its earlier decision in case of CIT Vs. Murli Agro Products Ltd. (ITA No. 36 of 2009 dated 29/10/2010) and expressed its agreement with the earlier decision holding that the crucial words "search" and "requisition" appear in substantive provisions of section 153A and that would through light on the applicability of the provisions which is being enacted to a search or requisition and that its construction has to be read and understood accordingly. The Hon'ble Bombay High Court further affirmed the decision of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. Vs. DCIT [2012] 18 ITR (Trib) 106 (Mumbai) wherein it was held that the "incriminating material" in the context of the relevant provision means books of account, other documents found in the course of search but not produced in the course of original proceedings and secondly, the undisclosed income or property discovered in the course of search. 15. We deem it appropriate to reproduce the fin....
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....t proviso to this section. The second proviso states that the assessment or reassessment pending on the date of initiation of the search or requisition shall abate. We find that there is no divergence of views in so far as the provision contained in section 153A till the 1st proviso. The divergence starts from the second proviso which states that pending assessment or reassessment on the date of initiation of search shall abate. This means that an assessment or reassessment pending on the date of initiation of search shall cease to exist and no further action shall be taken thereon. The assessment shall now be made u/s 153A. The case of Ld. Counsel for the assessee is that necessary corollary to this provision is that completed assessment shall not abate. These assessments become final except in so far and to the extent as undisclosed income is found in the course of search. On the other hand, it has been argued by the Ld. Standing Counsel that abatement of pending assessment is only for the purpose of avoiding two assessments for the same year, one being regular assessment and the other being assessment u/s 153A. In other words these two assessments coalesce into one assessment. T....
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....e search and which came to an end due to initiation of the search. 50. The provision contained in section 132 (1) empowers the officer to issue a warrant of search of the premises of a person where any one or more of conditions mentioned therein is or are satisfied, i.e. - (a) summons or notice has been issued to produce books of account or other documents but such books of account or documents have not been produced, (b) summons or notice has been or might be issued, he will not produce the books of account or other documents mentioned therein, or (c) he is in possession of any money or bullion etc. which represents wholly or partly the income or property which has not been and which would not be disclosed for the purpose of assessment, called as undisclosed income or property. We find that the provision in section 132 (1) does not use the word "incriminating document". Clauses (a) and (b) of section 132(1) employ the words "books of account or other documents". For harmonious interpretation of this provision with provision contained in section 153A, all the three conditions on satisfaction of which a warrant of search can be issued will have to be taken into account. ....
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....t and found in the course of search in our humble opinion such books of account or other documents have to be taken into account while making assessment or reassessment of total income under the aforesaid provision. Similar position will obtain in a case where undisclosed income or undisclosed property has been found as a consequence of search. In other words, harmonious interpretation will produce the following results:- (a) In so far as pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s 153A merge into one and only one assessment for each assessment year shall be made separately on the basis of the findings of the search and any other material existing or brought on the record of the AO, (b) in respect of non-abated assessments, the assessment will be made on the basis of books of account or other documents not produced in the course of original assessment but found in the course of search, and undisclosed income or undisclosed property discovered in the course of search. 54. It may be mentioned here that Ld. Counsel for All Cargo Global Logistics Ltd. was questioned about the scope of pending assessments ....
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.... the Act in the case of Hubtown Limited is incriminating or otherwise has to be tested based only on the satisfaction note recorded by the Assessing Officer/s. The contents of the said satisfaction note are the only item/material to be looked at in this regard and respondent cannot seek to augment, supplement or add to materials recorded to support the claim that incriminating material has been found. Further respondent cannot refer to any other documents or material to establish such a claim. We find support in (i) Ananta Landmark Pvt. Ltd. (Supra) and (ii) Jainam Investments (Supra), where the Courts have held that the question of the Assessing Officer's jurisdiction to undertake proceedings has to be tested/examined only on the basis of reasons recorded at the time of issuing a notice under Section 148 of the Act seeking to reopen an assessment. These reasons cannot be improved upon and/or supplemented much less substituted by affidavit and/or oral submission; (e) In the instant case, the satisfaction note dated 13th July 2021 (common for all Assessment Years) insofar it relates to Assessment Year 2017-2018 only records that: (i) an account of petitioner in the....
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....n etc. which represents wholly or partly the income or property which has not been disclosed for the purpose of assessment and discovered in the course of search. It can thus be stated that in case of unabated assessment, the reassessment can be made on the basis of the satisfaction note pursuant to which the search has been initiated and books of account or other documents not produced in the course of original assessment but found in the course of search which indicate undisclosed income or undisclosed property, and secondly, the reassessment can be made on the basis of the undisclosed income or undisclosed property which is physically found and discovered in the course of search. 18. Applying the aforesaid legal proposition in the instant case, we find that it is a case of completed/unabated assessment wherein the original return of income filed on 29/09/2012 stood processed under section 143(1) and accepted in absence of any notice under section 143(2) and statutory period of issuance of such notice stood expired well before the date of search which was conducted on 26/02/2016. 19. As per section 153A of the Act, once a search and seizure action is carried out, the AO has....
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....espect of which the assessee doesn't have any access or possession thereof, it can be safely concluded that no documents or material has been found during the course of search either from the premises or the possession of the assessee and what to talk about any incriminating nature of such material found and seized. What has been found and seized is from the possession of third persons, who no doubt are part of the assessee's family and covered as part of the same search proceedings, but the same cannot be held as found during the course of search in case of the assessee. 21. Where the documents have been found from the locker of third persons during the course of search but belongs to the assessee, the satisfaction note of the Assessing officer of the third persons so searched assumes significance as the same alone will indicate the incriminating nature of such material so found belonging to the assessee during the course of search as held by the Bombay High Court in case of Ashok Commercial (supra) wherein it was held that the contents of the said satisfaction note are the only statement/material to be looked at and the Revenue cannot seek to augment, supplement or add to the ....
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....ing within last six years preceding the search. 24. Further, it is noted that during the financial year 2010-11 relevant to assessment year 2011-12, the assessee had purchased the shares wherein the payment had been made through normal banking channel and the transaction is duly reflected and disclosed in the bank statement of the assessee. The proceedings for Assessment Year 2011-12 were also reopened u/s 153A pursuant to search action and the reassessment proceedings have been completed u/s 153A r/w 143(3) vide order dated 29/12/2017 where the AO has not recorded any adverse findings regarding the aforesaid purchase of shares of M/s Maple Goods (P) Ltd even though the documents found and seized from the locker were in the knowledge of the Assessing officer and a specific show-cause notice dated 14/09/2017 regarding bogus LTCG has been issued by the AO and considering the submissions of the assessee, the transaction of purchase of the shares of M/s Maple Good (P) Ltd through the broker Shri S.K Khemka has been duly accepted by the AO. Therefore, where for assessment year 2011-12, the documents so found and seized from the locker have not been found as incriminating in nature by....
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....icates and contract notes are incriminating in nature are not borne out of record and infact, the said documents corroborate and confirm the disclosed transaction of purchase of shares of Maple Good (P) Ltd by the assessee. Further, the fact that these documents have a direct bearing on the estimation of correct income of the assessee doesn't make them incriminating in nature as so held by the ld CIT(A). 26. Now, coming to statement of Shri S.K Khemka from whom assessee had purchased shares of Maple Good (P) Ltd, admittedly, the said statement was recorded on 13/03/2015 by the Investigation Wing, Calcutta in context of some other proceedings well before the date of search in case of the assessee which happened on 26/02/2016. As per the AO, the statement of Shri S.K Khemka is highly relevant to assessee's case as the assessee has purchased shares through the said broker. There is a difference between relevancy of material and incriminating nature of material found during the course of search. The material which could be relevant doesn't necessarily be held as incriminating in nature. In case of unabated assessment, what is required to be seen is whether there is any incriminating....
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....nt authority was seized of the aforesaid statement of Shri S. K Khemka at the time of recording of the satisfaction whereby the authorization has been issued and the search warrant was issued whereby the search has been initiated in case of the assessee. Therefore, the statement of Shri S.K Khemka is availability of other material/documentation which has come in the knowledge and possession of the AO for the first time during the course of reassessment proceedings and therefore can't be referred to and relied upon by the AO to augment, supplement and add to the material found during the course of search in terms of the share certificates and contract notes and in terming the same as incriminating material found during the course of search in case of the assessee. The contents advanced by the ld CIT/DR therefore cannot be accepted. 29. In view of the aforesaid discussion and in the entirety of facts and circumstances of the case and respectfully following the dicta laid down by the Hon'ble Supreme Court, Hon'ble Delhi and Bombay High Court as well as Special Bench of the Tribunal, we are of the considered view that the addition of Rs 87,04,733/- made by the AO during the reassess....