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Pr. Commissioner Of Income Tax Central-2 New Delhi Vs. Meeta Gutgutia Prop. M/s Ferns N'? Petals
June, 20th 2017
$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Reserved on: 3rd May, 2017
                                                      Date of decision: 25th May, 2017

+                                           ITA 306/2017

PR. COMMISSIONER OF INCOME TAX
CENTRAL-2 NEW DELHI                      ..... Appellant
                  Through:  Mr. Ashok Manchanda, Advocate.

                                 versus

MEETA GUTGUTIA PROP. M/S FERNS ,,N PETALS.... Respondent
                 Through: Mr. Piyush Kaushik, Advocate.

                                              WITH

+                                           ITA 307/2017

PR. COMMISSIONER OF INCOME TAX
CENTRAL-2 NEW DELHI                      ..... Appellant
                  Through:  Mr. Ashok Manchanda, Advocate.

                                 versus

MEETA GUTGUTIA PROP. M/S FERNS ,,N PETALS.... Respondent
                 Through: Mr. Piyush Kaushik, Advocate.

                                               WITH

+                                           ITA 308/2017

PR. COMMISSIONER OF INCOME TAX
CENTRAL-2 NEW DELHI                      ..... Appellant
                  Through:  Mr. Ashok Manchanda, Advocate.


ITA Nos. 306, 307, 308, 309 & 310 of 2017                                Page 1 of 49
                                 versus

MEETA GUTGUTIA PROP. M/S FERNS ,,N PETALS.... Respondent
                 Through: Mr. Piyush Kaushik, Advocate.

                                               WITH

+                                           ITA 309/2017

PR. COMMISSIONER OF INCOME TAX
CENTRAL-2 NEW DELHI                      ..... Appellant
                  Through:  Mr. Ashok Manchanda, Advocate.

                                 versus

MEETA GUTGUTIA PROP. M/S FERNS ,,N PETALS.... Respondent
                 Through: Mr. Piyush Kaushik, Advocate.

                                            AND

+                                           ITA 310/2017

PR. COMMISSIONER OF INCOME TAX
CENTRAL-2 NEW DELHI                      ..... Appellant
                  Through:  Mr. Ashok Manchanda, Advocate.

                                 versus

MEETA GUTGUTIA PROP. M/S FERNS ,,N PETALS.... Respondent
                 Through: Mr. Piyush Kaushik, Advocate.


CORAM: JUSTICE S. MURALIDHAR
       JUSTICE CHANDER SHEKHAR

                                            JUDGMENT
%                                            25.05.2017


ITA Nos. 306, 307, 308, 309 & 310 of 2017                  Page 2 of 49
Dr. S. Muralidhar, J.:
1. These are five appeals by the Revenue under Section 260A of the Income
Tax Act 1961 ('Act') directed against a common order dated 13th May, 2016
passed by the Income Tax Appellate Tribunal (,,ITAT) in ITA Nos. 2409 to
2412/Del/12 and 2437/Del/12 for the Assessment Years (,,AYs) 2000 -01 to
2004-05.

2. The main contention of the Revenue in these appeals is that the decision
of the Division Bench (,,DB) of this Court in Commissioner of Income Tax
(Central-III) v. Kabul Chawla (2016) 380 ITR 573 (Del) (hereafter Kabul
Chawla) as regards the assumption of jurisdiction under Section 153A of the
Act requires reconsideration, particularly in light of a later decision of a co-
ordinate Bench of this Court in Smt. Dayawanti Gupta v. CIT (2016) 390
ITR 496 (Del) (hereafter Dayawanti Gupta). The Revenue's submission is
that the invocation of Section 153A of the Act to re-open concluded
assessments of the AYs earlier to the year of search is justified even in the
absence of incriminating material found during the search qua each such
earlier AY. For reasons to follow, the Court does not agree with the above
submissions of the Revenue.

3. Since there are typographical errors in the memoranda of appeals, and the
corresponding appeal numbers before the ITAT, the Court sets out in a
tabulated form all the appeal numbers, the AY and the corresponding ITA
Nos.:
  S. No.    ITA No. of Assessment           Corresponding ITA No. of ITAT
            Revenues      Year (AY)
            appeal     in
            this Court

ITA Nos. 306, 307, 308, 309 & 310 of 2017                               Page 3 of 49
  (i)       306/17          2004-05         2437/Del/12- In revenues appeal
                                            memo the ITA No. of ITAT order is
                                            inadvertently    mentioned       as
                                            2413/Del/12 since that was the ITA
                                            No. of the Assessees appeal before
                                            ITAT dismissed IA for non-
                                            prosecution.
  (ii)      307/17          2003-04         2412/Del/12
  (iii)     308/17          2000-01         2409/Del/12
  (iv)      309/17          2001-02         2410/Del/12
  (v)       310/17          2002-03         2411/Del/12


Background facts
4. The facts leading to the filing of the present appeals are that a search and
seizure operation under Section 132 of the Income Tax Act, 1961 (,,Act)
was conducted on 23rd December, 2005 in the premises of the Ferns N Petals
Group at Farm No. 9, Satya Farms, Sultanpur, New Delhi (where the
warrant was issued in the name of Shri Vikas Gutgutia, Smt. Meeta Gutgutia
and Shri C.K. Gutgutia, Ferns & Petals India Pvt. Ltd., M/s Ferns & Petals
and M/s FNP Marketing) and at J-238, Sainik Farms, Delhi (warrants in the
name of Shri Vikas Gutgutia, Smt. Bina Gutgutia, Smt. Meeta Gutgutia and
Sh. C.K. Gutgutia were issued), Locker No. 1125, Standard Chartered Bank,
GK-1, New Delhi (warrants were issued in the name of Shri C.K. Gutgutia,
Smt. Bina Gutgutia and Smt. Meeta Gutgutia).

5. According to the Revenue, a number of documents were seized apart from
cash, jewellery and valuables.

6. The Ferns ,,N Petals Group is stated to comprise of various companies,
partnership firms and proprietorship concerns engaged mainly in the
ITA Nos. 306, 307, 308, 309 & 310 of 2017                                 Page 4 of 49
business of flowers, decoration and events management. It is stated that the
promoters' group comprises Shri Vikas Gutgutia and his wife, Smt. Meeta
Gutgutia, who are the directors/partners/shareholders in the group
companies/concerns.

7. The Revenue claims that the documents seized pertained to the period
2002 to 2005. On the date of the search itself i.e., 23rd December, 2005, the
officials of the Income Tax Department (,,ITD) recorded the statement of
Shri Pawan Gadia S/o Shri M.S. Gadia, a resident of Vasant Kunj. Although
the statement was under Section 133A of the Act, it was recorded on oath.
Shri Gadia admitted that he was working at M/s. Satya Farms as Vice-
President since August, 2001. He stated that he was supervising the work of
the following companies/concerns:

(i) Ferns & Petal Trading Pvt. Ltd.
(ii) FNP Pvt. Ltd.
(iii) FNP Events & Wedding Pvt. Ltd
(iv) Flowered Touch India Pvt. Ltd. &
(v) FNP Petals Pvt. Ltd.

8. The Revenues case is that the Respondent/Assessee, Smt. Meeta
Gutgutia, is the proprietor of M/s. Ferns ,,N Petals which is engaged in the
sale of fresh flowers and other related products. On the basis of documents
recovered during the search and seizure operation, a notice under Section
153A was issued to the Assessee on 12th December, 2006. Thereafter, notice
dated 3rd October, 2007 along with questionnaire under Sections 143(2) and
142(1) of the Act were also issued.
ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 5 of 49
Assessment orders
9. On 28th December, 2007, separate assessment orders were passed by the
AO in respect of the AYs 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05.
The AO dealt with the issue of ,,franchisee commission. He noted that as
per the trading and profit and loss account (,,P & L Account) for the AY
2004-05, the Assessee had claimed Rs. 60,066. It was noted that as in the
preceding years, a substantial amount was claimed on account of franchisee
commission which was debited to the P&L Account i.e., the franchisee
commission paid to various parties, the Assessee was thus asked to furnish
copies of accounts of the franchisees with their complete addresses. The AO
noted that the addresses of the franchisees were not revealed and on a
perusal of the copy of the accounts of the said franchisees, there were
glaring discrepancies in the details filed.

10. In the assessment orders passed for AYs 2001-02 to 2003-04 also, there
was a similar discussion regarding the franchisee commission payments and
the AO found no justification for such payments. Consequently, the amount
of the franchisee commission claimed by the Assessee in each of the years
was added back to her income. For AY 2004-05, the AO made an addition
on account of stock in the sum of Rs. 14,49,246.

11. During the course of search, the Assessee made a disclosure of Rs.110
lakhs on account of change in the method of accounting of franchisee fees
and undisclosed franchisee fees for the Financial Year (,,FY) during which
the search was conducted. On the basis of the said statement, the AO
surmised that the number of outlets for which franchisee fee was received

ITA Nos. 306, 307, 308, 309 & 310 of 2017                     Page 6 of 49
must have more or less remained the same in all AYs from 2001-02 to 2006-
07. He estimated the undisclosed income at a certain percentage of the
amount of disclosure made by the Assessee in her statement under Section
132 (4) of the Act. At this stage, it must be noted that no statement was
made by the Assessee herself. A statement was made under Section 133A by
Shri Pawan Gadia.

12. The disclosures made of undisclosed income for various AYs were
estimated by the AO as under:
"(a) AY 2001-02 @ 50% of disclosed amount Rs.55,00,000/-

(b) AY 2002-03 @ 60% of disclosed amount Rs.66,00,000/-

(c) AY 2003-04 @ 70% of disclosed amount Rs.77,00,000/-

(d) AY 2004-05 @ 80% of disclosed amount Rs.88,00,000/-

(e) AY 2005-06 @ 90% of disclosed amount Rs.99,00,000/-

(f) AY 2006-07 @ 100% of disclosed amount Rs.1,10,00,000/-"


13. There was no addition made for AY 2006-07 although the disclosure
was made relevant to the said year.

Proceedings before the CIT (A)
14. Five separate appeals were filed by the Assessee before the CIT(A). The
CIT(A) by five different orders relatable to each of the AYs in question
partly allowed the appeals deleting most of the additions made by the AO.
While the orders of the CIT(A) for the appeals pertaining to the AYs 2000-
01 and 2001-02 were issued on 12th March 2012, the order in the appeal
ITA Nos. 306, 307, 308, 309 & 310 of 2017                     Page 7 of 49
relating to AYs 2002-03 was issued by the CIT (A) on 13th March, 2012.
Separate orders in relation to AYs 2003-04 and 2004-05 were issued by the
CIT (A) on 14th March, 2012.

15. Before the CIT(A), the Assessee produced additional evidence under
Rule 46A of the Income Tax Rules, 1962 (Rules). This included copies of
the franchisee agreements. By a letter dated 9th July, 2010, the CIT(A)
forwarded the additional evidence to the AO for his comments. The AO then
submitted a report dated 3rd March, 2011 opposing the request of the
Assessee for permission to lead additional evidence. The additional evidence
was also contested by the AO as not supporting the Assessees explanation
regarding the payment of franchisee commission. A rejoinder was filed
thereto by the Assessee.

16. It must also be noticed at this stage that on 23 rd September, 2010, during
the pendency of the proceedings before the CIT (A) when a remand report
was sought from the AO, the Assessee offered a very detailed explanation
on the following topics to the AO during the remand proceedings:

(i)     Addition of Rs. 13,79,801/- on account of franchisee commission
        (rent);
(ii)    Addition of Rs. 88 lakhs on account of undisclosed franchisee
        commission;
(iii)   Addition of Rs. 17,32,511/- on account of security deposits;
(iv)    Addition of Rs. 6,64,910/- on account of undisclosed income from
        self-controlled outlets; and
(v)     Non-submission of books of account during the assessment
ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 8 of 49
        proceedings under Section 153A /143(3).

17. In respect of last topic regarding non-submission of books of accounts,
the Assessee stated as under:
        "In this context, we would like to reiterate that the assessee has
        been maintaining regular books of accounts on TALLY
        software on Computer and have filed regular Income Tax
        returns along with Profit & Loss Account and Balance Sheet
        which were audited u/s-44AB of the Act by Chartered
        Accountant, on the basis of the said books of accounts, prior to
        the Search u/s-132(1) on the Group, for the Assessment Year
        2000-01 to 2005-06, and the same are being produced for your
        kind verification. It is informed your kind self that some of the
        computers have already been seized during search operation on
        the various premises belonging to the assessee."

18. At the request of the Assessee that the assessment records of each of the
AYs should be called for verification, the CIT(A) asked the AO to be
present on the hearing on 11th November, 2011. On that date, the AO
appeared along with the assessment records. The Assessees Authorized
Representative (,,AR) also appeared along with the originals of the
Franchisee Agreements for the FYs 2001-02 to 2005-06.

Orders of the CIT (A)
19. The CIT(A) analyzed this additional evidence thoroughly. On the issue
of the franchisee commission paid by the Assessee, it was noted that the
accounts of the Assessee had been tax audited and no adverse comments had
been made by the Tax Auditors. The AO had also not rejected the books of
accounts of the Assessee. It was accordingly held that the disallowance of
the franchise commission paid was not sustainable. Accordingly, the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 9 of 49
disallowance was deleted.

20. A separate issue concerned additions on account of ,,undisclosed
franchisee commission (fee) that had been received by the Assessee. The
observations of the AO that the books of accounts had not been produced by
the Assessee despite specific opportunities was noted by the CIT(A). The
AOs observation that the Assessee did not declare any income from the
franchisee fee for any of the subsequent years till a search was conducted
was also noted. The disclosure made on 24th March, 2006 regarding the
admission of change in the management policy and the disclosure of Rs. 110
lakhs on account of ,,unrecorded franchisee fees received during the current
year was also noticed.






21. The CIT(A) examined in detail the basis for the AOs addition of the
undisclosed franchisee fee for all the years in question (other than the AY
2000-01). The CIT(A) noted that in the proceedings before the CIT(A), the
originals of the franchise agreements were verified by the AO contrary to
what was noted by the AO that the Assessee had admitted to have 52 owned
and controlled/operating franchisee outlets, the CIT(A) noted that the AR of
the Assessee had submitted that there were only 21 franchisees in FY 2003-
04. In his order in the appeal for the AY 2004-05 in paragraph 6.2.3, the
CIT(A) noted as under:
        "6.2.3 Since the appellant had made a request to call for the
        assessment record for verification of her contentions, the AO
        was asked to be present during hearing on 11/11/2011. On that
        date the AO Shri D.S.Rathi' appeared along with the assessment
        records and the appellant's AR also appeared along with
        originals of the Franchise Agreements Financial Year wise for

ITA Nos. 306, 307, 308, 309 & 310 of 2017                      Page 10 of 49
        F.Y 2001-02 to 2005-06 in support of the appellant's claim that
        she had different number of Franchise/retail outlets in different
        years under appeal as stated by the appellant in her affidavit
        The originals were verified by the AO and copies thereof have
        been placed on record the AR submitted that there were only 21
        franchises in F Y 2003-2004 Notings have accordingly been
        made by undersigned in the order sheet which has been signed
        by Shri Rathi, the Ld. AO, Shri Rajesh Jain, the Ld. AR of the
        appellant and the undersigned."

22. The additions made by the AO were found by the CIT(A) to be based on
surmises and suspicion. A reference was made to the decision of the
Supreme Court in Dhirajlal Girdharilal v. CIT (1954) 26 ITR 736 (SC). In
each of the appeals, the CIT(A) deleted the additions.

23. It requires to be noted that on the issue of addition of undisclosed
income on account of franchisee fee, even the AO did not make any such
addition for AY 2000-01. It was the case of the Assessee that there was no
incriminating material for any of the AYs other than the year of search.
Even for that year, the material was the disclosure made by the Assessee.
The specific contention of the Assessee which was accepted by the CIT(A)
was that there was "no such disclosure was made for earlier years, nor was
there, any evidence unearthed during the search by the Department that such
franchise income was not disclosed by the appellant during these years."

24. Aggrieved by the order of the CIT(A), appeals were filed both by the
Revenue and the Assessee before the ITAT. While the Assessee filed ITA
Nos. 2409/Del/2012 to 2413/Del/2012, the Revenue filed ITA Nos.
2433/Del/2012 to 2437/Del/2012.


ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 11 of 49
Impugned order of the ITAT
25. A perusal of the common order of the ITAT shows that it first dealt with
one common ground raised by the Assessee in all its appeals which
concerned the jurisdictional issue of the validity of the invocation of Section
153A of the Act by the Revenue. It was contended that for the AYs 2000-01
to 2003-04, there was no incriminating material seized during the course of
search and, therefore, the assessment order in respect of those AYs ought to
be quashed. The ITAT, following the decisions of this Court in Kabul
Chawla (supra) and Pr. CIT v. Lata Jain [2016] 384 ITR 543 (Del),
accepted the above grounds urged by the Assessee and held that the
assumption of jurisdiction under Section 153A for the said AYs was bad in
law.

26. As regards AY 2004-05, the ITAT noted that the addition for the said
AY was based on the seized documents. Accordingly, it was held that the
assessment for the AY 2004-05 under Section 153A was valid. The ITAT
then proceeded to examine the appeal filed by the Revenue for the said AY
2004-05 i.e., ITA 2437/Del/2012 on merits. The said appeal raised five
grounds: one for each of the deletions ordered by the CIT(A) of the
additions made by the AO as under:

(i) Deletion of the addition of Rs. 13,79,801/- made by the AO on account of
expenditure not related to business (being the payment of rent);

(ii) Deletion of addition of Rs. 88 lakhs on account of undisclosed franchisee
commission;


ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 12 of 49
(iii) Allowing relief of Rs. 14,04,175/- out of total addition of Rs.17,32,511/-
on account of non-refundable security;

(iv) Deletion of addition of Rs. 6,64,910/- on account of suppression of
income from self-controlled outlets;

(v) Allowing of relief of Rs. 12,07,705/- out of total addition of Rs.
14,49,246/- made by the AO on account of suppression of closing stock.

27. Each of the five grounds was rejected by the ITAT. Consequently, ITA
No. 2437/Del/2012 filed by the Revenue for AY 2004-05 was dismissed on
merits. The corresponding appeal of the Assessee for the said AY being ITA
No. 2413/Del/2012 was dismissed for non-prosecution since none appeared
for the Assessee before the ITAT.

The present appeals
28. It must be noticed here that before this Court, there are five appeals filed
by the Revenue. ITA Nos. 308/2017, 309/2017 and 310/2017 and 307/2017
are directed against the common impugned order of the ITAT in ITA Nos.
2409/Del/2012, 2410/Del/2012, 2411/Del/2012 and 2412/Del/2012 (all of
which were the Assessees appeals before the ITAT) pertaining to AYs
2000-01, 2001-02, 2002-03 and 2003-04 respectively.

29. The 5th appeal being ITA No. 306/2017 by the Revenue is against the
same impugned common order of the ITAT in ITA No. 2413/Del/2012 (the
Assessees appeal before the ITAT) for AY 2004-05. However, this is an
obvious mistake since, as noticed hereinbefore, that appeal by the Assessee

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 13 of 49
i.e., ITA No. 2413/Del/2012 was dismissed by the ITAT for non-
prosecution. Going by the contents of the memorandum of appeal where the
Revenue has challenged only two of the deletions that were made by the
CIT(A) which were sustained by the ITAT viz., on account of undisclosed
receipts for franchisee income of Rs. 88 lakhs and Rs. 13.79 lakhs with
respect to rent payment (franchisee commission), it is plain that what the
Revenue has in fact challenged in ITA No. 306/2017 is the impugned
common order of the ITAT in relation to the Revenues own appeal being
ITA No. 2437/Del/2012 pertaining to AY 2004-05.

30. It is also significant to note that the Revenue has not challenged the
dismissal of its appeals being ITA Nos. 2433/Del/2012, 2434/Del/2012,
2435/Del/2012 and 2436/Del/2012 for AYs 2000-01, 2001-02, 2002-03 and
2003-04 concerning the deletion by the CIT(A) of the additions made by the
AO.

31. On its part, the Assessee has also not challenged the order of the ITAT to
the extent it holds that for AY 2004-05 there was incriminating material and
to the extent the ITAT rejected the Assessees appeal for that year on the
ground that invocation of Section 153A of the Act was wrong. Further, the
additions made by the CIT(A) for AY 2004-05 were sustained by the ITAT.
To that extent, the Assessee had filed an appeal in the ITAT being ITA No.
2143/Del/2012 for AY 2004-05. However, the dismissal of the said appeal
of the Assessee by the ITAT for non-prosecution by the impugned order has
not been challenged by the Assessee.

32. The net result of what is in issue in the present appeals is:
ITA Nos. 306, 307, 308, 309 & 310 of 2017                           Page 14 of 49
(i) The validity of the invocation of Section 153A of the Act by the Revenue
as regards the AYs 2000-01 up to AY 2003-04; and
(ii) The validity of the order of the ITAT to the extent it has affirmed the
orders of the CIT(A) for 2004-05 deleting only the following additions in
respect of:
        (a) Franchisee Commission of Rs. 88 lakhs made by the AO on
        estimate basis; and

        (b) Deletion of addition of Rs. 13.79 lakhs made by the AO with
        respect to rent payment.

Questions of law
33. Consequently, while admitting these appeals, the Court frames the
following questions of law:

(i) Was the Revenue justified in invoking Section 153A of the Act in
relation to AYs 2000-01 to AYs 2003-04?

(ii) With reference to AY 2004-05, was the ITAT correct in confirming the
orders of the CIT(A) to the extent it deleted the additions made by the AO to
the taxable income of the Assessee of franchisee commission in the sum of
Rs.88 lakhs and rent payment for the sum of Rs.13.79 lakhs?

Submissions of the Revenue
34. Mr. Ashok Manchanda, learned counsel appearing for the Revenue,
made the following submissions:

(a)     The quashing by the ITAT of the AOs assessment orders for the AYs

ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 15 of 49
        2000-01 to 2003-04 by placing reliance on the decision of this Court
        in Kabul Chawla (supra) on the ground that no incriminating material
        was found or seized relatable to the said AYs was legally and
        factually erroneous. Apart from the seized unaccounted cash of Rs.
        14,50,000/-, which was surrendered as part of the undisclosed income
        by the Assessee, there were "bundles of seized documents some of
        which were confronted to the Assessee's representative Shri Pawan
        Gadia" during the recording of his statement on 23rd December, 2005.
(b)     As regards the AY 2004-05, the ITAT was wrong in sustaining the
        deletion by the CIT(A) of the addition of Rs. 88 lakhs by the AO on
        account of undisclosed franchisee commission on the ground that
        evidence found during the search for a particular AY could not be
        used for other AYs of the block period. It is submitted that besides the
        statement admitting to the undisclosed income on the basis of the
        seized documents, it was plain that the modus operandi of the
        Assessee was the same in the year of search (AY 2006-07) in which
        the Assessee admitted an undisclosed income of Rs. 1.10 crores as
        well as the earlier AYs. Reliance is placed on the decision of this
        Court in Dayawanti Gupta and, in particular, to paragraphs 16 to 20
        and 23 thereof. It is pointed out that this judgment was delivered by
        the DB of this Court after duly considering the decision of this Court
        Kabul Chawla.
(c)     The statement of Shri Pawan Gadia was not retracted at any stage of
        the proceedings. It was the statement recorded during search. The
        surrendered amount of Rs.1.10 crores was not related to any particular
        AY at the time when the said statement was made. During the course
ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 16 of 49
        of     the    search,       several   other   documents   such   as    cash
        memos/invoices/bills of purchase/hand written papers & other
        documents etc. pertaining to the period from the year 2002 to 2005
        were seized. It was, therefore, not as if there was no seized material
        for AYs other than AY 2006-07. In the memorandum of appeal in
        ITA No. 306/2017, it is stated that these documents were as under:
        i.      Pages at S.No. 12 to 27 of Annexure A-1 [comprising 258
                documents] pertain to AY 2003-04.
        ii.     Similarly, Page No. 28 to 34 of Annexure A-3 [comprising 96
                pages) pertain to AY 2005-06.
        iii.    Similarly, Page No. 35 to 41 of Annexure A-4 [comprising 124
                pages) pertain to AY 2004-05.
        iii.    Similarly, Page No. 42 to 44 of Annexure A-5 [comprising 85
                pages) pertain to AY 2006-07.
(d)     Despite sufficient opportunities provided to the Assessee by the AO to
        produce the books of accounts along with bill, vouchers etc. vide
        Questionnaire dated 3rd October, 2007 and 6th December, 2007, such
        books of accounts etc. were not produced. Therefore, it was not
        possible for the AO to record specific findings for each of the seized
        documents. A good part of the information contained in the said
        documents was incriminating in nature i.e., "which does not appear to
        have been recorded or reflected in the books of account." It is stated
        that it was for this reason that the Assessee did not produce its books
        of accounts during the assessment proceeding in spite of several
        opportunities. This left the AO with no alternative but to assess and
        estimate the Assessee's income on the basis of evidence and
ITA Nos. 306, 307, 308, 309 & 310 of 2017                            Page 17 of 49
        information coming on record during the search and survey operation
        and the subsequent investigations on an ,,estimate basis. Reliance was
        placed on the decisions in CIT v. Anil Kumar Bhatia (2013) 352 ITR
        493 (Del); Filatex India Ltd. v. CIT (2015) 229 Taxman 555 (Del)
        and CIT v. Chetan Das Lachman Das [2012] 254 CTR 392 (Del). It
        is submitted that in each of the said cases, there was very little seized
        material only for one AY and yet the Court sustained additions made
        in other AYs even where there was no such incriminating evidence. It
        is pointed out that in Filatex India Ltd. v. CIT (supra), the addition
        made only on the basis of the statement of a General Manager was
        upheld by the Court even when no incriminating material was found
        during the search concerning the impugned addition. It was held that
        the additions did not have to be restricted or limited to the
        incriminating material.

(e)     In Kabul Chawla (supra), there was no incriminating material found
        or seized during the search, while, in the present case, there was
        unaccounted cash seized, a surrender statement of Rs. 1.10 crores in
        the hands of the Assessee and of Rs. 2.50 crores in the hands of the
        Group and bundles of seized documents which formed the bases for
        the additions made in the different AYs. Therefore, the facts of the
        case were very much similar to the facts of the other 4 cases and in no
        manner similar to those in Kabul Chawla (supra).

(f)     The additions made in various AYs were relatable to the evidence
        uncovered during the search or the consequent search proceedings.

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 18 of 49
        For instance, the factum of the franchisee commission came to light
        for the first time during the search proceedings. There was no
        disclosure/declaration of income on this score till the search was
        conducted. During the submissions made on 23rd September,2010, the
        Assessee acknowledged that there were 21 franchisees for AY 2004-
        05. On this basis, the CIT(A) ought to have sustained at least half of
        the amount added by the AO since there were 42 franchisee outlets for
        the AY 2004-05.

(g)     As regards quashing of assessment for the AYs 2000-01 to 2003-04,
        by the ITAT, it is submitted that the additions made on account of
        franchisee commission for each of the AY were on account of
        undisclosed receipt of franchisee commission coming to light during
        the search. The addition was based on information revealed by Shri
        Pawan Gadia in his statement dated 23rd December, 2005 recorded at
        the time of search. Even otherwise, the additions were related directly
        or indirectly to the seized material and evidence uncovered during or
        after the search.

(h)     Even otherwise, the quashing of assessments on the basis of the
        illegality attaching to the invocation of Section 153A of the Act (as a
        jurisdictional issue) was unsustainable since this ground had never
        been raised before the CIT(A). It was raised for the first time before
        the ITAT. Therefore, the AO or the CIT(A) had no occasion to deal
        with the said issue i.e., whether there was any incriminating material
        for each of the AYs in question. The ITAT failed to give an

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 19 of 49
        opportunity to the AO in that regard before admitting the additional
        ground. The ITAT, therefore, ought to have remanded the matter to
        the file of AO.

Submissions on behalf of the Assessee
35. Mr. Piyush Kaushik, learned counsel appearing for the Assessee, in
reply, has submitted as under:

(a)     The fact of the matter was that there was no incriminating material
        seized during the search and seizure operations for the AYs 2000-01
        to 2003-04. The action under Section 153A of the Act was a
        consequence of the search operations under Section 132. Section
        153A should not be read in isolation from Section 132 of the Act.
        Only a valid search and seizure satisfying all the requirements of
        Section 132(1)(a),(b) and (c) could form the foundation for the
        assumption of jurisdiction under Section 153A of the Act.
(b)     The search operation under Section 132 of the Act could be initiated
        only against a person who is considered to be in possession of
        undisclosed income or property. Section 153A was not meant to
        provide a second or a third inning to the AO so as to complete a
        normal scrutiny assessment. The existence of incriminating material
        was therefore a sine qua non for the assumption of jurisdiction under
        Section 153A. This would have to be seen on a year-to-year basis
        because under the scheme of Section 153A, every AY is to be taken
        separately.
(c)     The decision in Kabul Chawla (supra) was concurred with in the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 20 of 49
        decisions of several other High Courts including Principal
        Commissioner of Income Tax v. Saumya Construction Pvt. Ltd.
        (2016) 387 ITR 529 (Guj); Principal Commissioner of Income Tax-
        1 v. Devangi alias Rupa 2017-TIOL-319-HC-AHM-IT; CIT v. IBC
        Knowledge Park Pvt. Ltd. (2016) 385 ITR 346 (Kar); Pr. CIT-2 v.
        Salasar Stock Broking Ltd. 2016-TIOL-2099-HC-KOL-IT and CIT
        v. Gurinder Singh Bawa (2016) 386 ITR 483 (Bom). Reference was
        also made to the two decisions of this Court in Pr. CIT v Mahesh
        Kumar Gupta 2016-TIOL-2994-HC-Del and the decision dated 7th
        February, 2017 in ITA Nos. 61/2017 and 62/2017 (The Pr.
        Commissioner of Income Tax-9 v. Ram Avtar Verma) where the
        decision in Kabul Chawla (supra)was followed.
(d)     The decision in Dayawanti Gupta (supra) was distinguishable on
        facts. There, there was an admission by the Assessee that they were
        not maintaining regular books of accounts and the AO in those cases
        had specifically rejected the books of accounts. There was a
        confirmation in response to Question No. 11 in Dayawanti Gupta
        (supra) that there was no year-wise recording of transactions. In the
        present case, however, there was no such admission; the books of
        accounts were accepted by the AO. Further, in response to question
        No. 16 it was stated by the Assessee in the present case that there was
        no scope to manipulate profits. The surrender was made on the basis
        of a survey and that too to buy ,,peace of mind.
(e)     It was erroneous for the Revenue to contend that the Assessee failed
        to furnish books of accounts. Before the CIT(A), a remand report was
        sought from the AO on the additional documents submitted by the
ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 21 of 49
        Assessee. A personal hearing was also given to the AO and the
        original assessment records were verified by the CIT(A).
(f)     The statement of Mr. Pawan Gadia was only made during a survey. It
        was not a statement made during search under Section 132 (4) of the
        Act. The statement made during a survey, even if mistakenly taken on
        oath, has no probative or binding value as was explained in CIT v.
        Dhingra Metal Works (2010) 328 ITR 384 (Del) and in the case of
        CIT v. S. Khader Khan Son (2008) 300 ITR 157 (Mad); CIT v
        Sunrise Tooling System Pvt. Ltd. 2014-TIOL-134-HC-DEL-IT and
        the decision dated 2nd January, 2013 in Tax Case No. 8/1999 of the
        Jharkhand        High     Court     in   Shree Ganesh Trading    Co.       v.
        Commissioner of Income-Tax. Reference was also made to the
        instructions issued by the Central Board of Direct Taxes (,,CBDT) on
        10th March, 2003 and 18th December, 2014 emphasizing that the
        Department should "strictly avoid obtaining admission or undisclosed
        income under coercion/undue influence" during search and seizure
        operations.

36. Both counsel have filed written note of submissions to supplement their
oral submissions. On the side of the Revenue, elaborate written submissions
dated 26th April, 2017 (running into 26 pages) and 2nd May, 2017 (running
into 13 pages) have been submitted. On the side of the Assessee, written
submissions dated 26th April, 2017 (running into 11 pages) and 3 rd May,
2017 (running into 3 pages) have been submitted.




ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 22 of 49
Analysis of the material recovered during search
37. At the outset, it requires to be noticed that what was actually seized from
the various premises during the course of the search were the following:
        Items                                    Premises
                             J-238, Sainik     Farm no. 9,        Locker
                             Farms, Delhi      Satya Farm,       No. 1125,
                                               Sultan Pur,       Standard
                                               New Delhi         Chartered
                                                                Bank, GK-I,
                                                                New Delhi
    Cash Found               Rs. 2,08,900/-   Rs. 13,23,810/-       Nil
    Cash seized              Rs. 1,50,000/-   Rs. 13,00,000/-        Nil
  Jewellery found                  Nil              Nil         Rs.9,47,020/-


38. It appears that the seized cash was added to the income during the year
of search and not in relation to any of the other AYs i.e., AYs 2000-01 to
2004-05. The documents as stated by the Revenue in its Memorandum of
Appeal in ITA No. 306/2017 viz., Annexures A1, A3 to A5 stated to pertain
to AY 2003-04, 2005-06, 2004-05, and 2006-07 respectively have neither
been described as such or in any detail by the Revenue either in these
appeals. They have not been referred to or discussed in any of the orders of
the AO or the CIT(A). Although it was repeatedly urged by Mr. Manchanda
that there were "hundreds of seized documents", what is necessary to
examine is whether they were in fact ,,incriminating documents. Any and
every document cannot be and is in fact not an incriminating document. The
legal position, as will be discussed shortly, is that there can be no addition
made for a particular AY without there being an incriminating material qua
that AY which would justify such an addition. Therefore, the mere fact there
may have been documents pertaining to the above AYs does not satisfy the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 23 of 49
requirement of law that there must be incriminating material. In any event,
the aforementioned documents i.e., A1, A3, A4 and A5 pertain to only some
of the AYs with which we are concerned i.e., AYs 2003-04, and 2004-05.
The Court is unable to accept the submissions of Mr. Manchanda that there
was incriminating material other than what has been discussed in the orders
of the AO, CIT(A) and the ITAT for the AYs in question.

39. It requires to be noticed at this stage that for AY 2004-05, the ITAT has
proceeded on the basis that there was incriminating material and that finding
has become final since there is no appeal before this Court by the Assessee.
It is another matter that the ITAT rejected the plea of the Revenue that for
the said AY the CIT(A) wrongly deleted five of the additions made by the
AO for that AY on such incriminating material. Consequently, this Court
has to only examine the justification for invocation of Section 153A by the
Revenue for AYs 2000-01 to 2003-04.

Distinction between statements under Sections 132 (4) and 133 A
40. The main plank of Mr. Manchandas submission was that the disclosure
made by Mr. Pawan Gadia in his statement under Section 133A was
sufficient to be construed as incriminating material qua all the
aforementioned AYs, the assessment for which could be re-opened by
invoking Section 153A of the Act. It is significant that while in the written
submission dated 26th April, 2017, Mr. Manchanda termed the statement of
Mr. Pawan Gadia as "the statement dated 23rd December, 2005 recorded
under Section 132(4) of the Act", he was careful to describe it as such in the
subsequent written submission dated 2nd May, 2017. This was for a good

ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 24 of 49
reason. The statement was in fact not under Section 132(4) of the Act but
under Section 133A of the Act. There is a difference between a statement
made during a survey under Section 133A of the Act and that made during
the course of search under Section 132 (4) of the Act. Section 132(4) of the
Act states that the authorized officer may, during the course of search and
seizure, "examine on oath any person who is found to be in possession or
control     of    any     books      of     account,   documents,   monies,   bullion,
jewellery..."and that any statement made during such examination may be
used thereafter in evidence in any proceeding under the Act. On the other
hand, Section 133A does not talk of the recording of any statement on oath.
Under Section 133A (3) (iii), the Income Tax Authority acting under the
said provision could "record the statement of any person which may be
useful for, or relevant to, any proceeding under this Act." Therefore, there is
a considerable difference in the nature of the statement recorded under
Section 132(4) and that recorded under Section 133A(3)(iii) of the Act.

41. This distinction was noticed by this Court in CIT v. Dhingra Metal
Works (supra). The Court there referred to the decision of the Kerala High
Court in Paul Mathews & Sons v. Commissioner of Income Tax (2003)
263 ITR 101 (Ker) and of the Madras High Court in CIT v. S. Khader Khan
Son (supra) and observed that the word ,,may occurring in Section
133A(3)(iii) of the Act "clarifies beyond doubt that the material collected
and the statement recorded during the survey is not a conclusive piece of
evidence by itself." Incidentally, the decision of the Madras High Court in
CIT v. S. Khader Khan Son (supra) has been affirmed by the Supreme
Court by the dismissal on 20th September, 2012 of SLP (Civil) No.

ITA Nos. 306, 307, 308, 309 & 310 of 2017                               Page 25 of 49
13224/2008 filed by the Revenue against the said decision after granting
leave. To the same effect is the decision of this Court in CIT v. Sunrise
Tooling System Pvt. Ltd (supra) and of the Jharkhand High Court in Shree
Ganesh Trading Co. v. Commissioner of Income-Tax (supra). The
CBDTs instructions dated 10th March, 2003 and 18th December, 2014 have
also emphasized that there should be no recording of statement during
"search/seizure/other proceeding" under the Act under "undue pressure or
coercion".

42. Therefore, in the present case, it would be wrong on the part of the
Revenue to characterize the statement of Mr. Pawan Gadia as by itself an
incriminating material that could be used for making additions in all the
AYs in question apart from the year of search.

Analysis of Mr. Gadia's statement
43. The second important aspect is that there is no statement of the Assessee
herself recorded even under Section 133A of the Act. In this regard, it is
important to examine what exactly is stated by Mr. Pawan Gadia on the date
of the search and survey operations i.e., 23rd December, 2005. Mr.
Manchanda has referred to the following questions and answers:

        Q.1 What is your identity?

        Ans: I am Pawan Gadia s/o Sh.M.S. Gadia R/o ........., New
        Delhi working at Satya Farm...

        Q.2 What kind of job you look after?

        Ans: I supervise the work of the companies (1) M/s Ferns" &

ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 26 of 49
        Petal Trading Pvt. Ltd., (2) M/s. FNP Pvt. Ltd. (3) M/s FNP
        Events &. Wedding, M/s Flowered Touch India Pvt. Ltd. & (5)
        M/s FNP Petals Pvt. Ltd.
        ...
        Q4 How much salary are you drawing?

        Ans:Rs.30,000/- per month.

        ...
        Q.7 What is your financial arrangements with franchisees?

        Ans: They give one time license fee which is not refundable and
        Further as per the terms and conditions mutually agreed
        franchises commission...

        ...
        Q.19 I am showing you page 19 of Annexure A-6 which has
        details of sale costing. Can you show me sale bill to confirm
        these sales.

        Ans: The paper which you have shown is a draft model for
        costing purposes only.

        Q20 I am showing page no.13 of Annexure A-6 explain this.

        Ans: This. is the various reports for management control
        purpose showing the variations between budgeted and actual
        realization.

        Q21 I am showing page 80 of A-5, can you reconcile this figure
        with your accounts.

        Ans: I am not able to recollect any details regarding this papers
        at present

        Q.22 I am showing you page 49 to page 56 of annexure A-5, it
        contains the profit and loss A/c& balance sheet of Handicraft of
        retail division. Can you reconcile these figures with books of

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 27 of 49
        sale.

        Ans: These are the current years a/c subject to finalization and
        therefore is reconcilable.

        Q23 I am showing page 48 of annexure A-5, Please explain the
        figures contained therein.

        Ans: These are the account receivable of FNP Market which I
        am not able to reconcile at this moments.

        Q.24 What are the cash balances in books of different concern
        of whose a/cs are being maintained at this stages.

        Ans: Since the books a/cs are not completed we are unable to
        tell the exact cash balance as on date.

        Q25 In the light of the questions asked and answers given by
        you, do you want to offer any income to tax which is outside the
        books of a/c and also· keeping in mind that you do not main~
        stock register of flowers.

        Ans: To buy the peace of mind, we offer to declare an income of
        Rs.2.5 crs. in our three firms/companies which are Ferns &
        Petal India Pvt. Ltd.. Ferns· & Petal Prop. Mrs. Meeta
        Gutgutia and FNP Marketing Prop. Mr.. Vikas Gutgutia which
        also includes cash seized by you from their premises as well as
        residence of Sh. Vikas Gutgutia and Meeta Gutgutia, subject to
        the condition that no penalty and prosecution proceedings will
        be initiated under the Act.

        Q.26 Do you want to say anything else?

        Ans: No. I have given the above statement without any fear or
        under any pressure, voluntarily. I have read over the above
        statement and found it correctly recorded."

44. It was also noted by the AO ­ and this has not been disputed by the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 28 of 49
Assessee ­ that a sum of Rs. 1.10 crores was offered by the Assessee as
income in the year of search. It is clarified that it had in fact been added to
the income of the Assessee in the year of search. What is also significant is
that in the answer to Question No. 22, Mr. Pawan Gadia was clear that the
document at Annexure A-5 contained the "current years account subject to
finalization and therefore is reconcilable." Although it was repeatedly urged
by Mr. Manchanda that the documents seized and furnished by Mr. Pawan
Gadia pertained to the AYs other than the year of search, clearly, no such
question was put to Mr. Pawan Gadia. It should have been easy for the
Investigating Officer to ask Mr. Pawan Gadia of the particular AY to which
the document related to. However, that was not done. Therefore, all that we
have is the statement of Mr. Pawan Gadia which makes a disclosure about
the earlier undisclosed income and stating that the offer of such income was
being made "to buy peace of mind". Therefore, the statement recorded under
Section 133A of the Act of Mr. Gadia can hardly be said to be incriminating
material for all the AYs in question.

Other incriminating material?
45. Were there any other materials unearthed during the search that could be
said to be incriminating qua each of the AYs in question? In trying to
answer this question, there were two broad submissions made by Mr.
Manchanda ­ one was a legal submission that there was no need for the
existence of such incriminating material to justify the re-opening of the
assessment for the earlier six years prior to the year of search. For this,
reliance was placed on the decision in Dayawanti Gupta (supra). The
second was that since the Assessee never produced the books of accounts, it

ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 29 of 49
was not possible for the AO to record a specific finding regarding each of
the seized documents, "if the same were unaccounted for in the books of
accounts or otherwise incriminating." The presumption here is that the other
documents seized should be taken to be incriminating because it was only
for that reason that Mr. Pawan Gadia has felt constrained to make the
disclosure.

46. As regards the second submission, it must be pointed out that this
submission is both factually incorrect and based on surmises. During the
course of the proceedings before the CIT(A), by means of an application
under Rule 46A or the Rules, the Assessee sought to produce additional
evidence which was permitted by the CIT(A). That decision of the CIT(A)
was never challenged by the Revenue. In any event, the dismissal of its
appeal by the ITAT pertaining to the AYs 2000-01, 2001-02, 2002-03 and
2003-04 on merits was never challenged by it. What the CIT(A) did was to
seek a remand report from the AO. On 23rd September, 2010, the Assessee
wrote a letter to the AO offering a detailed explanation for each of the
additions and the other points raised by the AO. This has also been referred
to hereinbefore. That letter specifically states that the Assessee had been
maintaining regular books of accounts "on TALLY software on Computer
and have filed regular Income Tax returns along with Profit & Loss Account
and Balance Sheet which were audited u/s-44AB of the Act by Chartered
Accountant." It was added that "the same are being produced for your kind
verification". Further, the AO informed that "some of the computers have
already been seized during search operations on the various premises
belonging to the Assessee." This has to be also seen along with the order

ITA Nos. 306, 307, 308, 309 & 310 of 2017                      Page 30 of 49
passed by the CIT(A) in the appeal pertaining to the AY 2004-05 where he
specifically notes in paragraphs 6.2.3 that the AO was asked to remain
present in the hearing before the CIT(A) and that he verified the originals of
all the franchise agreements by signing the order-sheets before the CIT(A).
The fact remains that the books of accounts of the Assessee were not
rejected by the AO. Even in the audit report under Section 44AB, no defect
in the books of accounts maintained by the Assessee was pointed out. In the
circumstances, it is not possible to accept the plea of the Revenue now made
that the so-called additional incriminating material qua each of the AYs
could not be verified and, therefore, not discussed by the AO because the
Assessee did not produce its books of accounts. It appears that the Revenue
did have access to the entire books of accounts of the Assessee which were
also shown to have also been maintained in soft form on the computers of
the Assessee which were already seized by the Revenue during search
operations.

47. The offer of Rs. 1.10 crores as undisclosed franchisee fee was made only
for the year of search and not for the earlier years. In fact, there was no
material on the basis of which the franchisee income could have been added
for the earlier years. What the AO did, as was noted by the CIT(A), was to
proceed on the basis as if there should have been such undisclosed
franchisee income in the earlier AYs as well because the modus operandi of
the Assessee during those was the same. The AO also presumed that the
number of outlets remained constant in all the AYs from 2000-01 to 2006-
07. He proceeded to estimate the undisclosed income at a certain percentage
of the amount disclosed by the Assessee in the year of search. The AO

ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 31 of 49
presumed that the Assessee had 52 owned/controlled franchisee outlets
during October to December, 2007 and would have had the same numbers
during the earlier years as well. A question was posed to Mr. Gadia during
the assessment proceedings: "Please give the details with complete names
and addresses of 46 outlets, 65 strategic alliance and 156 vendor partners
outside India as mentioned in your group profile." That question was based
on the information collected from the Assessees website. On the other hand,
the Assessee filed an affidavit dated 18th March, 2010 before the CIT(A)
pointing out that there were different numbers of owned/controlled outlets
and franchisee outlets during the various AYs. From that affidavit, it would
be seen that for AY 2004-05, there were only 4 owned outlets and 21
franchisee outlets.

48. In the remand proceedings, the AO could not dispute the above
information. As already noticed, the Assessee had brought with herself all
the franchisee agreements to substantiate the above submission made in her
affidavit. It is for this reason that in para 6.3 (f) of the order passed by the
CIT(A) for AYs 2004-05, it was categorically held: "No evidence to dispute
the affirmations in the affidavit have been brought on record by the AO in
the remand proceedings." The estimated additions made by the AO from
AYs 2001-02 onwards was Rs. 55 lakhs for AY 2001-02, Rs. 66 lakhs for
AY 2002-03, Rs. 77 lakhs for AY 2003-04 and Rs. 88 lakhs for AY 2004-
05. All these additions were therefore held to be unsustainable in law as they
were based on a misconception as to the factual position with regard to the
number of outlets in existence during the relevant previous year as well as
"on the suspicion that the appellant must have earned undisclosed income

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 32 of 49
during the year under appeal". It has been categorically found by the CIT(A)
on facts that no incriminating material in relation to the AYs in question i.e.,
2001-02 to 2003-04 had been brought on record which could support such
presumption.

49. It was on this basis that the addition made by the AO on account of
franchisee commission was deleted by the CIT(A) and upheld by the ITAT,
which is in conformity with the law explained by the Supreme Court in
Dhirajlal Giridharilal v. CIT (supra) that mere suspicion would not be
tantamount to evidence. In the instant case, the additions on account of
franchisee commission by the AO was "on mere suspicion and not on any
evidence whatsoever."

50. Mr. Manchanda was at pains to construe the statement made by Mr.
Gadia as pointing to the factum of appointment of franchisees by the
Assessee, which information, according to him, was not known earlier. He
also pointed out to the practice of collecting a non-refundable license fee
and non-refundable deposits which facts were not earlier known but for the
search conducted. As rightly pointed out by Mr. Kaushik, learned counsel
for the Respondent, that nothing was brought on record by the AO to show
that there was failure on part of the Assessee to make a disclosure as regards
the franchisee income in any of the earlier years. The incriminating material
had to be in relation to any income that was not disclosed in the earlier
returns. There was no such incriminating material to show that there was a
failure by the Assessee to disclose any franchisee income for those earlier
years. The disclosure by the Assessee on account of ,,undisclosed franchisee

ITA Nos. 306, 307, 308, 309 & 310 of 2017                         Page 33 of 49
commission was relevant only for the year of search and not for the earlier
years.

51. The CIT(A) has undertaken a very exhaustive exercise in respect of each
of the AYs with respect to the number of franchisee outlets operating every
year. He called for a remand report from and provided a personal hearing to
the AO, who also verified the original assessment records and the records
brought by the Assessee. Thereafter, the CIT(A) came to the conclusion that
the number of franchisee/retail outlets as disclosed by the Assessee was
correct. This factual determination has not been shown by the Revenue to be
perverse or contrary to the records. The entire edifice of the arguments of
Mr. Manchanda that the AO was not heard and that there was a failure by
the Assessee to produce the accounts and records is wholly contrary to what
emerges from a reading of the detailed orders of the CIT(A).

52. For the aforementioned reasons, the deletion by the CIT(A) of the
additions made by the AO for the AYs 2004-05 both as regards the
franchisee fee/commission of Rs. 88 lakhs and the rent amount appears to be
based on factual findings and, therefore, does not call for any interference by
this Court.

53. At this stage, it is also to be noticed that an elaborate argument was
made by Mr. Manchanda on the aspect of the security deposits accepted by
the Assessee. These were of two kinds ­ one was of refundable security
deposits and the other for non-refundable security deposits. As far as the
refundable security deposits were concerned, the AO himself in his remand
report accepted them as having been disclosed. This has been noticed by the
ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 34 of 49
CIT(A) in para 7.2.1 of his order for AY 2004-05. As regards non-
refundable security deposit, the CIT(A) accepted the AOs findings that
treating the sum as ,,goodwill written off on deferred basis was not correct,
hence the addition of Rs. 5,09,343 was held to be justified and correct. It
was duly accounted for under ,,liabilities and transferred to income in a
phased manner. This was not done by manipulating the account books of the
Assessee as alleged by the Revenue. This would have been evident had the
return been picked up for scrutiny under Section 143(3) of the Act. This,
therefore, was not material which was subsequently unearthed during the
search which was not already available to the AO. Consequently, the
additions sought to be made by the AO on account of security deposits were
rightly deleted by the CIT(A).

54. For all of the aforementioned reasons Question (ii) framed above is
answered in the affirmative i.e., in favour of the Assessee and against the
Revenue.

Invocation of Section 153A for AYs 2000-01 to 2003-04
55. On the legal aspect of invocation of Section 153A in relation to AYs
2000-01 to 2003-04, the central plank of the Revenues submission is the
decision of this Court in Dayawanti Gupta (supra). Before beginning to
examine the said decision, it is necessary to revisit the legal landscape in
light of the elaborate arguments advanced by the Revenue.

56. Section 153A of the Act is titled "Assessment in case of search or
requisition". It is connected to Section 132 which deals with 'search and
seizure'. Both these provisions, therefore, have to be read together. Section
ITA Nos. 306, 307, 308, 309 & 310 of 2017                       Page 35 of 49
153A is indeed an extremely potent power which enables the Revenue to re-
open at least six years of assessments earlier to the year of search. It is not to
be exercised lightly. It is only if during the course of search under Section
132 incriminating material justifying the re-opening of the assessments for
six previous years is found that the invocation of Section 153A qua each of
the AYs would be justified.

57. The question whether unearthing of incriminating material relating to
any one of the AYs could justify the re-opening of the assessment for all the
earlier 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 to the evidence found.
        This, however, does not mean that the assessment under Section
ITA Nos. 306, 307, 308, 309 & 310 of 2017                           Page 36 of 49
         153A 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."

58. In Kabul Chawla (supra), the Court discussed the decision in Filatex
India Ltd. v. CIT (supra) as well as the above two decisions and observed as
under:
         "31. What distinguishes the decisions both in CIT v. Chetan
         Das Lachman Das (supra), and Filatex India Ltd. v. CIT-IV
         (supra) in their application to the present case is that in both the
         said cases there was some material unearthed during the search,
         whereas in the present case there admittedly was none.
         Secondly, it is plain from a careful reading of the said two .
         decisions that they do not hold that additions can be validly
         made to income forming the subject matter of completed
         assessments prior to the search even if no incriminating
         material whatsoever was unearthed during the search.

         32. Recently by its order dated 6th July 2015 in ITA No. 369 of
         2015 (Pr. Commissioner of Income Tax v. Kurele Paper Mills
         P. Ltd.), this Court declined to frame a question of law in a case
         where, in the absence of any incriminating material being found
         during the search under Section 132 of the Act, the Revenue
         sought to justify initiation of proceedings under Section 153A
         of the Act and make an addition under Section 68 of the Act on
         bogus share capital gain. The order of the CIT(A), affirmed by
         the ITAT, deleting the addition, was not interfered with."

59. In Kabul Chawla (supra), the Court referred to the decision of the
Rajasthan High Court in Jai Steel (India), Jodhpur v. ACIT (2013) 36
Taxman 523 (Raj). The said part of the decision in Kabul Chawla (supra) in
paras 33 and 34 reads as under:
         "33. The decision of the Rajasthan High Court in Jai Steel
         (India), Jodhpur v. ACIT (supra) involved a case where certain
         books of accounts and other documents that had not been
ITA Nos. 306, 307, 308, 309 & 310 of 2017                             Page 37 of 49
        produced in the course of original assessment were found in the
        course of search. It was held where undisclosed income or
        undisclosed property has been found as a consequence of the
        search, the same would also be taken into consideration while
        computing the total income under Section 153A of the Act. The
        Court then explained as under:

                "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", which have been
        found at more than one place in Section 153A of the Act as
        under:
               "26. The plea raised on behalf of the assessee that as the
               first proviso provides for assessment or reassessment of
               the total income in respect of each assessment year
               falling within the six assessment years, is merely reading
ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 38 of 49
                the said provision in isolation and not in the context of
                the entire section. The words 'assess' or 'reassess'-have
                been used at more than one place in the Section and a
                harmonious construction of the entire provision would
                lead to an irresistible conclusion that the word assess has
                been used in the context of an abated proceedings and
                reassess has been used for completed assessment
                proceedings, which would not abate as they are not
                pending on the date of initiation of the search or making
                of requisition and which would also necessarily support
                the interpretation that for the completed assessments, the
                same can be tinkered only based on the incriminating
                material found during the course of search or requisition
                of documents."






60. In Kabul Chawla (supra), the Court also took note of the decision of the
Bombay High Court in Commissioner of Income Tax v. Continental
Warehousing Corporation (Nhava Sheva) Ltd. [2015] 58 taxmann.com 78
(Bom) which accepted the plea that if no incriminating material was found
during the course of search in respect of an issue, then no additions in
respect of any issue can be made to the assessment under Section 153A and
153C of the Act. The legal position was thereafter summarized in Kabul
Chawla (supra) as under:
        "37. On a conspectus of Section 153A(1) of the Act, read with
        the provisos thereto, and in the light of the law explained in the
        aforementioned decisions, the legal position that emerges is as
        under:
        i. Once a search takes place under Section 132 of the Act,
        notice under Section 153 A (1) will have to be mandatorily
        issued to the person searched requiring him to file returns for
        six AYs immediately preceding the previous year relevant to
        the AY in which the search takes place.

        ii. Assessments and reassessments pending on the date of the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                           Page 39 of 49
        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 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 as pending assessments are concerned, the
        jurisdiction to make the original assessment and the assessment
        under Section 153A merges into one. Only one assessment shall
        be made separately for each AY on the basis of the findings of
        the search and any other material existing or brought on the
        record of the AO.

        vii. Completed assessments can be interfered with by the AO
        while making the assessment under Section 153 A only on the
        basis of some incriminating material unearthed during the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 40 of 49
         course of search or requisition of documents or undisclosed
         income or property discovered in the course of search which
         were not produced or not already disclosed or made known in
         the course of original assessment."

61. It appears that a number of High Courts have concurred with the
decision of this Court in Kabul Chawla (supra) beginning with the Gujarat
High Court in Principal Commissioner of Income Tax v. Saumya
Construction Pvt. Ltd. (supra). There, a search and seizure operation was
carried out on 7th October, 2009 and an assessment came to be framed under
Section 143(3) read with Section 153A(1)(b) in determining the total income
of the Assessee of Rs. 14.5 crores against declared income of Rs. 3.44
crores. The ITAT deleted the additions on the ground that it was not based
on any incriminating material found during the course of the search in
respect of AYs under consideration i.e., AY 2006-07. The Gujarat High
Court referred to the decision in Kabul Chawla (supra), of the Rajasthan
High Court in Jai Steel (India), Jodhpur v. ACIT (supra) and one earlier
decision of the Gujarat High Court itself. It explained in para 15 and 16 as
under:
         "15. On a plain reading of section 153A of the Act, it is evident
         that the trigger point for exercise of powers thereunder is a
         search under section 132 or a requisition under section 132A of
         the Act. Once a search or requisition is made, a mandate is cast
         upon the Assessing Officer to issue notice under section 153A
         of the Act to the person, requiring him to furnish the return of
         income in respect of each assessment year falling within six
         assessment years immediately preceding the assessment year
         relevant to the previous year in which such search is conducted
         or requisition is made and assess or reassess the same. Since the
         assessment under section 153A of the Act is linked with search
         and requisition under sections 132 and 132A of the Act, it is

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 41 of 49
        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
        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 the search or requisition
        stands abated and the total income of the assessee is required to
        be determined under section 153A of the Act. Similarly, sub-
        section (2) provides for revival of any assessment or
        reassessment which stood abated, if any proceeding or any
        order of assessment or reassessment made under section 153A
        of the Act is annulled in appeal or any other proceeding.

        16. Section 153A bears the heading "Assessment in case of
        search or requisition". It is "well settled as held by the Supreme
        Court in a catena of decisions that the heading or the Section
        can be regarded as a key to the interpretation of the operative
        portion of the section and if there is no ambiguity in the
        language or if it is plain and clear, then the heading used in the
        section strengthens that meaning. From the heading of section

ITA Nos. 306, 307, 308, 309 & 310 of 2017                           Page 42 of 49
        153. the intention of the Legislature is clear, viz., to provide for
        assessment in case of search and requisition. When the very
        purpose of the provision is to make assessment In case of
        search or requisition, it goes without saying that the assessment
        has to have relation to the search or requisition, in other words,
        the assessment should connected With something round during
        the search or requisition viz., incriminating material which
        reveals undisclosed income. Thus, while in view of the mandate
        of sub-section (1) of section 153A of the Act, in every case
        where there is a search or requisition, the Assessing Officer is
        obliged to issue notice to such person to furnish returns of
        income for the six years preceding the assessment year relevant
        to the previous year in which the search is conducted or
        requisition is made, any addition' or disallowance can be made
        only on the basis of material collected during the search or
        requisition, in case no incriminating material is found, as held
        by the Rajasthan High Court in the case of Jai Steel (India) v.
        Asst. CIT (supra), the earlier assessment would have to be
        reiterated, in case where pending assessments have abated, the
        Assessing Officer can pass assessment orders for each of the six
        years determining the total 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.
        xxx
        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.

ITA Nos. 306, 307, 308, 309 & 310 of 2017                            Page 43 of 49
        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, no incriminating material is found, no
        addition or disallowance can be made in relation to that
        assessment year in exercise of powers under section 153A of
        the Act and the earlier assessment shall have to be reiterated. In
        this regard, this court is in complete agreement with the view
        adopted by the Rajasthan High Court in the case of Jai Steel
        (India) v. Asst. CIT (supra). Besides, as rightly pointed out by
        the learned counsel for the respondent, the controversy involved
        in the present case stands concluded by the decision of this
        court In the case of CIT v. Jayaben Ratilal Sorathia (supra)
        wherein it has been held that while it cannot be disputed that
        considering section 153A of the Act, the Assessing Officer can
        reopen and/or assess the return with respect to six preceding
        years ; however, there must be some incriminating material
        available with the Assessing Officer with respect to the sale
        transactions in the particular assessment year."

62. Subsequently, in Principal Commissioner of Income Tax- 1 v. Devangi
alias Rupa (supra), another Bench of the Gujarat High Court reiterated the
above legal position following              its earlier decision in     Principal
Commissioner of Income Tax v. Saumya Construction P. Ltd. (supra) and
of this Court in Kabul Chawla (supra). As far as Karnataka High Court is
concerned, it has in CIT v. IBC Knowledge Park P. Ltd. (supra) followed
the decision of this Court in Kabul Chawla (supra) and held that there had to
be incriminating material qua each of the AYs in which additions were
sought to be made pursuant to search and seizure operation. The Calcutta
High Court in CIT-2 v. Salasar Stock Broking Ltd. (supra), too, followed
the decision of this Court in Kabul Chawla (supra). In CIT v. Gurinder
Singh Bawa (supra), the Bombay High Court held that:

ITA Nos. 306, 307, 308, 309 & 310 of 2017                           Page 44 of 49
        "6...once an assessment has attained finality for a particular
        year, i.e., it is not pending then the same cannot be subject to
        tax in proceedings under section 153A of the Act. This of
        course would not apply if incriminating materials are gathered
        in the course of search or during proceedings under section
        153A of the Act which are contrary to and/or not disclosed
        during the regular assessment proceedings."

63. Even this Court has in CIT v Mahesh Kumar Gupta (supra) and The Pr.
Commissioner of Income Tax-9 v. Ram Avtar Verma (supra) followed the
decision in Kabul 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.

The decision in Dayawanti Gupta
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 generally try to record the transactions

ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 45 of 49
        made in respect of purchase, manufacturing and sales in our
        regular books of accounts but it is also fact that some time due
        to some factors like inability of accountant, our busy schedule
        and some family problems, various purchases and sales of
        Supari, Gutka and other items dealt by our firms is not entered
        and shown in the regular books of accounts maintained by our
        firms."

65. Therefore, there was a clear admission by the Assessees in Dayawanti
Gupta (supra) there that they were not maintaining regular books of
accounts and the transactions were not recorded therein.

66. Further, in answer to Question No. 11, the Assessee in Dayawanti Gupta
(supra) was confronted with certain documents seized during the search. The
answer was categorical and reads thus:
        "Ans:- I hereby admit that these papers also contend details of
        various transactions include purchase/ sales/ manufacturing
        trading of Gutkha, Supari made in cash outside Books of
        accounts and these are actually unaccounted transactions made
        by our two firms namely M/s Asom Trading and M/s. Balaji
        Perfumes."

67. By contrast, there is no such statement in the present case which can be
said to constitute an admission by the Assessee of a failure to record any
transaction in the accounts of the Assessee for the AYs in question. On the
contrary, the Assessee herein stated that, he is regularly maintaining the
books of accounts. The disclosure made in the sum of Rs. 1.10 crores was
only for the year of search and not for the earlier years. As already noticed,
the books of accounts maintained by the Assessee in the present case have
been accepted by the AO. In response to question No. 16 posed to Mr.
Pawan Gadia, he stated that there was no possibility of manipulation of the

ITA Nos. 306, 307, 308, 309 & 310 of 2017                        Page 46 of 49
accounts. In Dayawanti Gupta (supra), by contrast, there was a chart
prepared confirming that there had been a year-wise non-recording of
transactions. In Dayawanti Gupta (supra), on the basis of material recovered
during search, the additions which were made for all the years whereas
additions in the present case were made by the AO only for AY 2004-05 and
not any of the other years. Even the additions made for AYs 2004-05 were
subsequently deleted by the CIT(A), which order was affirmed by the ITAT.
Even the Revenue has challenged only two of such deletions in ITA No.
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 question of law is
        answered again in favour of the revenue and against the
        assessee."

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 47 of 49
69. What weighed with the Court in the above decision was the "habitual
concealing of income and indulging in clandestine operations" and that a
person indulging in such activities "can hardly be accepted to maintain
meticulous books or records for long." These factors are absent in the
present case. There was no justification at all for the AO to proceed on
surmises and estimates without there being any incriminating material qua
the AY for which he sought to make additions of franchisee commission.

70. The above distinguishing factors in Dayawanti Gupta (supra), therefore,
do not detract from the settled legal position in Kabul Chawla (supra) which
has been followed not only by this Court in its subsequent decisions but also
by several other High Courts.

71. For all of the aforementioned reasons, the Court is of the view that the
ITAT was justified in holding that the invocation of Section 153A by the
Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as
there was no incriminating material qua each of those AYs.


Conclusion
72. To conclude:

(i) Question (i) is answered in the negative i.e., in favour of the Assessee and
against the Revenue. It is held that in the facts and circumstances, the
Revenue was not justified in invoking Section 153A of the Act against the
Assessee in relation to AYs 2000-01 to AYs 2003-04.

(ii) Question (ii) is answered in the affirmative i.e., in favour of the Assessee

ITA Nos. 306, 307, 308, 309 & 310 of 2017                          Page 48 of 49
and against the Revenue. It is held that with reference to AY 2004-05, the
ITAT was correct in confirming the orders of the CIT(A) to the extent it
deleted the additions made by the AO to the taxable income of the Assessee
of franchise commission in the sum of Rs. 88 lakhs and rent payment for the
sum of Rs. 13.79 lakhs.

73. The appeals are accordingly dismissed but in the circumstances, no
orders as to costs.



                                                    S. MURALIDHAR, J



                                               CHANDER SHEKHAR, J
MAY 25, 2017
dn/rd




ITA Nos. 306, 307, 308, 309 & 310 of 2017                     Page 49 of 49

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