" \nIN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “B”, MUMBAI \n \nBEFORE HON’BLE JUSTICE (RETD.) C.V. BHADANG, PRESIDENT \n AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER \n \nITA No. 6493/Mum/2024 (A.Y. 2012-13) \nITA No. 6494/Mum/2024 (A.Y. 2013-14) \nITA No. 6495/Mum/2024 (A.Y. 2014-15) \nITA No. 6496/Mum/2024 (A.Y. 2015-16) \nITA No. 6497/Mum/2024 (A.Y. 2016-17) \nITA No. 6498/Mum/2024 (A.Y. 2017-18) \nITA No. 6499/Mum/2024 (A.Y. 2018-19) \n \nShri Bipin Dahyalal Savla \n \n17, Tambe Building, 36-A, Dr. \nAmbedkar \nRoad, \nMatunga, \nMumbai-400019, Maharashtra. \n \nPAN: AAGPS 4679 H \nVs. \n \nDCIT, Central Circle-\n4(1), Mumbai \n (Appellant) (Respondent) \n \n \nPresent for: \nAssessee by \n: Shri Rakesh Joshi. \nRevenue by \n \n: Shri Byomakesh Pradipta Kumar Panda, CIR/DR \n \n \n \n & Ms. Monika H. Pande, Sr. DR \n \nDate of Hearing \n: 21.02.2025 \nDate of Pronouncement \n: 21.03.2025 \n \nO R D E R \n \nPER AMARJIT SINGH, ACCOUNTANT MEMBER: \n \n \nAll these seven appeals filed by the assessee for the A.Y. \n2012-13 to 2018-19 are directed against the common order of First \nAppellate Authority passed u/s 250 of the I.T. Act on 18.10.2024. \nSince common issue on identical facts are involved in all these \nappeal filed by the assessee, therefore, for the sake of convenience, \nthese appeals are adjudicated by this common order by taking the \nITA 6493/M/2024 for A.Y. 2012-13 as lead case and its finding \nwill be applied to the other appeals wherever these are applicable. \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n2 \n2. \nThe assessee has raised the following grounds of appeal: \n“1. On the facts and circumstances of the case as well as in law, the \nLearned CIT(A) has erred in confirming the action of the Learned \nAssessing Officer in passing the Assessment Order u/s.143(3) r.w.s \n153A of the Income Tax Act, 1961, which is bad in law and null and void \nas the same is passed in violation of the provisions of the Income Tax Act, \n1961. \n2. That order passed by Ld. AO dated 29/12/2019 and further order \npassed by Ld. CIT (A) dated 18/10/2014 are bad in law in as much as \nwhile passing the impugned orders material/statement found/taken \nfrom/during search at Sunshine Group are applied against the assessee \nu/s 153A whereas admittedly from assessee's own search u/s 132 no \ndocument much less any incriminating document was found where law \ndoes not allow use of such document/statement etc. not found from \nassessee's search u/s 153A, thereby vitiating the entire exercise being \nagainst the mandate of law. \n3. On the facts and circumstances of the case as well as in law, the \nLearned CIT(A) has erred in confirming the action of the Learned \nAssessing Officer in making an addition in the Assessment Order passed \nu/s. 143(3) r.w.s 153A of the Income Tax Act, 1961, without any \nincriminating documents were found during the course of search. \n4. That order passed by Ld. AO dated 29/12/2019 and further order \npassed by Ld. CIT(A) dated 18/10/2024 are bad in law in as much as \nreliance on statement of Nilesh Bharani & his staff 4 members is \nabsolutely bad as there is no independent/valid rational connect in form \nof any tangible material found from stated search on Sunshine Group in \nabsence of which we pray for deletion of additions made. \n5. On the facts and circumstances of the case as well as in law, the \nLearned CIT(A) has erred in confirming the action of the Learned \nAssessing officer in making an addition of Rs.1,03,00,000/-u/s.69 of the \nIncome Tax Act, 1961 by treating the alleged cash loan given to Shri \nNilesh Bharani as Undisclosed investment, without considering the facts \nand circumstances of the case. \n6. On the facts and circumstances of the case as well as in law, the \nLearned CIT(A) as well as the Learned Assessing officer has erred in not \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n3 \nappreciating the fact that no addition can be made on the basis of the \nretracted statement. \n7. On the facts and circumstances of the case as well as in law, the ld. \nCIT(A) has erred in confirming the action of the Learned Assessing Officer \nin making an addition of Rs. 9,67,617/- as alleged interest income \nearned on cash loan given to Shri Nilesh Bharani without considering the \nfacts and circumstances of the case. \n8. The appellant craves leave to add, amend, alter or delete the said \nground of appeal.” \n3. \nFact in brief is that return of income declaring total income of \nRs. 4,89,530/- was filed on 30.07.2012. The assessment u/s \n143(3) of the Act was completed on 29.01.2015 assessing the total \nincome at Rs. 5,11,870/-. Subsequently a search/survey action \nu/s 132/133A was carried out on 07.10.2017 in the cases of \nSunshine Group. The search action unearthed evidences about the \ninvolvement of this Group in providing accommodation entries in \nthe form of unsecured loans, bogus purchases and bogus long \nterm capital gain etc. During the said search action at the \npremises of M/s. Evergreen Enterprises it was found that Mr. \nNilesh Bharani was involved in undisclosed activity of money \nlending in unaccounted cash from the said premises. On the basis \nof cash loan ledger found and seized at the premises of Evergreen \nEnterprises and statement recorded u/s 132(4) of the Act it was \nfound that assessee Shri Bipin D Savla had lent cash loans to \nNilesh Bharani. Thereafter, a notice u/s 153A of the Act has been \nissued on 03.12.2018 to the assessee after another search action \ncarried on 18.12.2017 in the case of Shri Bipin D. Savla. In \nresponse to the notice, the assessee filed return of income on \n05.01.2019 declaring total income at Rs. 5,11,870/-. \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n4 \n4. \nDuring the course of assessment proceedings u/s 143(3) \nr.w.s. 153A of the Act, the assessing officer stated that from the \nsearch action carried out u/s 132 of the Act in the case of Mr. \nNilesh Bharani and M/s. Evergreen Enterprises at Sharda Sadan, \nDadar (East), Mumbai on 06.10.2017, incriminating evidences \nrelating to undisclosed money lending activity carried out by Mr. \nNilesh Shamji Bharani were found and seized. The AO further \nstated that the ledger of the lender seized contained the \ninformation relating to code of the lender, name of the lender, cash \namount lent by the lender and interest calculation etc. The AO has \nalso mentioned the statement of various employees who were \nworking and assisting Shri Nilesh Bharani in the business of \nunaccounted borrowing and lending activity. The assessing officer \nhas also reproduced the content of the statement made by Shri \nNilesh Bharani u/s 132(4) of the Act in the assessment order and \nstatement of other employee i.e. Mr. Ashwin Amrit Lal Rathod, \nMrs. Vibha Sachin Rawate, Shri Shankar G Jadhav Ramani and \nShri Nilesh Ramesh Chandra Shah. In the statement, they have \nexplained maintenance of books of account containing lenders \ndetails and interest calculation and code of the lender, name and \naddress of the borrower etc. On the basis of incriminating \nevidences in the form of lenders ledger seized from the premises of \nShri Nilesh Bharani the assessing officer has determined the total \ncash loan of Rs. 13,59,00,000/- provided by the assessee Shri \nBipin D Savla to Shri Nilesh Bharni. During the course of search \naction at the premises of the assessee on 18.12.2017 the assessee \nhad admitted of providing cash loans through Mr. Nilesh Bharani. \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n5 \nHowever, vide affidavit dated 09.01.2018 the assessee categorically \ndenied of having given any cash loan or through Shri Nilesh \nBharani. The assessee further submitted that he had not given any \ncash loans therefore question for providing year-wise details of \ncash loans and explaining the source of the same did not arise. \n5. \nIn response to the show cause notice making the aforesaid \nproposed addition assessee also stated that the records and \nproceedings of the search action was taken place at the premises \nof Shri Nilesh Bharani for which he was neither a witness nor fully \naware of the proceedings taken place there. The assessee further \nstated that he had not given any cash loan to Mr. Nilesh Bharani \nor M/s. Evergreen Enterprises. The assessee also submitted that \nno incriminating material or evidences were found to show / prove \nthat he had advanced cash loan to Mr. Nilesh Bharani during \nsearch action at his premises. However, the assessing officer has \nnot agreed with the submission of the assessee and referred the \nstatement of Mr. Nilesh Bharani and employees of Evergreen \nEnterprises wherein they have admitted the modus operandi of \ncash loan lending and borrowing. The AO has also not accepted \nthe assessee’s retraction of the statement and stated that assessee \nfailed to prove that he had made original statement under \nmistaken belief of fact or law. Therefore, the assessing officer has \ntreated the cash loan amounting to Rs. 13,59,00,000/- given to \nShri Nilesh Bharani for A.Y. 2012-13 to A.Y. 2018-19 as \nunexplained cash loan given outside the books of account and \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n6 \nadded to the total income of the assessee u/s 69 of the Act as \nunder: \nAssessment \nYear \nOpening \nBalance \nCash loan \ngiven during \nthe year \nCash loan \nreceived back \nduring the year \nBalance outstanding \ncash loan \n \nAmt in 000 \nAmt in 000 \nAmt in 000 \nAmt in 000 \n2012-13 \n0 \n10300 \n \n10300 \n2013-14 \n10300 \n38200 \n \n48500 \n2014-15 \n48500 \n18400 \n \n66900 \n2015-16 \n66900 \n10700 \n \n77600 \n2016-17 \n77600 \n \n \n77600 \n2017-18 \n77600 \n58300* \n \n135900 \n2018-19 \n135900 \n \n \n135900 \nTotal \n \n135900 \n0 \n \n \n6. \nThe \nAO \nhas \nalso \ndetermined \nthe \ninterest \namount \nearned/receivable on cash loan lent by the assessee amounting to \nRs. 6,97,32,530/- for A.Y. 2012-13 to 2018-19 as under: \nAssessment \nYear \nInterest of \ncurrent year \nloans \nInterest of \nearlier year \nloans \nTotal interest for \nthe year \n \nAmt in 000 \nAmt in 000 \nAmt in 000 \n \nA \nB \nC \n2012-13 \n9,67,617 \n0 \n9,67,617 \n2013-14 \n29,80,083 \n14,28,975 \n44,09,058 \n2014-15 \n18,89,900 \n61,77,017 \n80,66,917 \n2015-16 \n8,23,183 \n88,74,975 \n96,98,158 \n2016-17 \n \n1,05,63,100 \n1,05,63,100 \n2017-18 \n63,89,680 \n1,05,63,100 \n1,69,52,780 \n2018-19 \n \n1,90,74,900 \n1,90,74,900 \nTotal \n1,30,50,463 \n5,66,82,067 \n6,97,32,530 \n \n7. \nThe assessee filed appeal before the ld. CIT(A). The ld. CIT(A) \nhas dismissed the appeal of the assessee reiterating the fact \ndiscussed by the assessing officer. \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n7 \n8. \nDuring the course of appellate proceedings before us, the ld. \nCounsel has discussed the validity of assessment order passed by \nthe assessing officer u/s 143(3) r.w.s. 153A of the Act as referred \nin ground no. 1 to 4 of the appeal filed by the assessee. The ld. \nCounsel submitted that admission made by the assessee in the \nstatement recorded u/s 132(4) of the Act was retracted vide \naffidavit dated 09.01.2018. He also submitted that Shri Nilesh \nBharani had also retracted the statement and during the course of \ncross examination he categorically denied of receiving any such \nloan. The ld. Counsel vehemently contended that there was no \nincriminating documents found during the course of search action \ncarried out in the case of the assessee hence no addition can be \nmade in the assessment order passed u/s 153A of the Act in the \ncase of the assessee. He also pointed out that no proceedings has \nbeen initiated u/s 153C of the Act since the alleged documents \nwas found and seized from the separate search action carried out \nat the premises of the third party, M/s. Evergreen Enterprises. The \nld. Counsel has also referred the decision of Jurisdictional Bombay \nHigh Court in the case of Sejal Jewellary & Ans. Vs Union of India \nand Ors. Writ Petition No. 3057 of 2019. The ld. Counsel has also \nreferred the various judicial pronouncements as filed in the paper \nbook. \n9. \nOn the other hand, ld. DR submitted that admission has \nbeen made by the assessee on the basis of seized material which \nhas been confronted to the assessee in the course of search. The \nld. DR also submitted that retraction made by the assessee has \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n8 \nnot been supported with evidences and the retraction made was an \nafterthought. The ld. DR has also referred the case law of B. \nKishore Kumar vs DCIT, Central Circle-IV(1), Chennai (2014) 52 \ntaxmann.com 449 and in the case of Bannalal Jat Constructions \n(P) Ltd. vs ACIT (2019) 106 taxmann.com 128 and the case of \nPCIT, New Delhi vs Avinash Kumar Setia (2017) 81 taxmann.com \n476, the High Court of Delhi. \n10. Heard both the sides and perused the material on record in \nrespect of the ground no. 1 to 4 on the validity of the assessment \nproceedings made u/s 143(3) r.w.s. 153A of the Act. It is \nundisputed fact that incriminating material in the form of ledger of \nlenders account was found and seized from the search action \ncarried out in the case of Sunshine Group. The seized cash loan \nlenders ledger showed that assessee, Shri Bipin D. Savla had lent \nmoney to the amount of Rs. 13,59,00,000/- to Shri Nilesh Bharani \nwho was operating from the premises of Evergreen Enterprises. \nDuring the course of search action in the case of M/s. Evergreen \nEnterprises on 07.10.2017 Shri Nilesh Bharani has admitted that \nhe was involved in the business of unaccounted borrowing and \nlending. He has also used the employee’s of firm M/s. Evergreen \nEnterprises for the purpose of carrying out the money lending \nactivity. Subsequently on 18.12.2017 search action was also \ncarried out in the case of the assessee wherein in his statement \nwas recorded u/s 132(4) of the Act and assessee had accepted of \nlending loan amount to Shri Nilesh Bharani. Subsequently, Shri \nNilesh Bharani has retracted his statement, thereafter the \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n9 \nassessee has also retracted his statement of providing any loan \namount to the said party. During the course of appellate \nproceedings before us the ld. Counsel has contended that no \nincrimination evidences relating to the undisclosed money to Shri \nNilesh Bharani was found and seized from the search action \ncarried out in the case of the assessee. The ld. Counsel submitted \nthat since the incriminating document was found from the \npremises of the third party on the different search action which \nwas carried out on 07.10.2017 at the premises of M/s. Evergreen \nEnterprises, therefore, the proceedings in the case of the assessee \nshould have been initiated u/s 153C of the Act not u/s 153A of \nthe Act. We find that nowhere the assessing officer has discussed \nany seized document found at the premises of the assessee. The \nassessment u/s 153A of the Act was made on the basis of \nincriminating document found and seized on 07.10.2017 from the \nsearch action carried out in the case of the Sunshine Group. Even \nthe notice u/s 142(1) issued to the assessee has referred the \nmaterial found and seized from the premises of M/s. Evergreen \nEnterprises from the search action taken place on 07.10.2017. The \nAO should have initiated the proceedings in the case of the \nassessee u/s 153C of the Act not u/s 153A of the Act since in the \ncase of the assessee no incriminating material was found and \nseized during the course of search action carried out in the case of \nthe assessee and merely the statement recorded u/s 132(4) of the \nAct does not constitute incriminating material. The judicial \npronouncements referred by the ld. DR are distinguishable from \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n10 \nthe facts and issue raised in the case of the assessee about the \napplicability of provision of section 153C of the Act. \n11. We have also perused the decision of Hon’ble Delhi High \nCourt in the case of PCIT vs Anand Kumar Jain 432 ITR 384 \n(Delhi) wherein held that if no incriminating material is found \nduring search in the case of assessee then no addition could be \nmade on the basis of search action conducted in the case of third \nparty and under such circumstances, it is mandatory to make \nassessment u/s 153C of the Act. We have also perused the various \njudicial pronouncements in the case of PCIT(Central) & Ors. Vs \nAnand Kumar Jain (HUF) & Ors., Rajeshkumar Rameshchandra \nShah vs DCIT, Mayur Kanjibhai Shah vs ITO, Parag Motilal Savla \nvs ITO, DCIT CC vs Vipul Dilipbhai Shah, Nilesh Shamji Bharani \nvs DCIT and PCIT vs Abhisar Buildwell (P) Ltd. as referred in the \npaper book filed by the ld. Counsel. The ITAT Mumbai in the case \nof DCIT vs Bharat Girdharlal Rughani vide ITA No. 1511/M/2023 \ndated 31.10.2023 on the similar issue of seized material \nfound/seized from search action carried out in the case of Nilesh \nBharani held that addition made u/s 153A of the Act was \nunsustainable since incriminating material was found and seized \nfrom the search action of the third party and not from the \npremises of the assessee in that case. The relevant extract of the \ndecision of the ITAT is reproduced as under: \n“12. First of all we have noticed that there is no incriminating material in \norder to fasten the liability of the assessee. The AO has proceeded \nagainst the assessee under section 153A of the Act. When there is no \nincriminating material then how the assessee can be proceeded against \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n11 \nunder section 153A of the Act. For argument sake even if it is assumed \nthat there is incriminating material against the assessee then \nassessment ought to be framed under section 153C of the Act. \nFurthermore, it is admitted fact on record that the evidence relied upon \nthe by the AO in this case was collected in case of search of a third party. \n13. No doubt subsequent search was conducted at the premises of the \nassessee on 18.12.2017 but no material was found or seized. Para 5.14 \nof the assessment order apparently proves that the alleged incriminating \nmaterials viz. promissory note etc. brought on record as Annexure A-16 \nand A-17 was seized in case of search on a third party and not the \nassessee and in these circumstances assessment proceedings were \nrequired to be initiated under section 153C and not 153A as has been \ndone in this case. \n13. Furthermore, when we examine para 5.18 of the assessment order \nthe AO has discussed the documentary evidence seized and statement \nobtained during search at the premises of one Mr. Nilesh Bharani on \n06.10.2017 wherein one document showing Bharani was coded as \nR/08/B, which is assessee. Mr. Nilesh Bharani has stated that “the list \nof lenders consisting the details of code, name, \noutstanding amount, contact person and contact number, address which \nbelongs to the assessee” and is extracted as under: \n \n14. Aforesaid extract is prepared during the statement of Mr. Nilesh \nBharani on the basis of coded Number R/08/B. We fail to crack the code \nR/08/B even with the assistance of the Ld. D.R. if it refers to the \nassessee. \n15. Copy of ledger extracted in para 5.18 of the assessment order also \ndoes not bear any name. Moreover, these documents were seized from \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n12 \nthe premises of one Mr. Nilesh Bharani. For argument sake even if it \nbelongs to the assessee then assessment under section 153C was \nrequired to be initiated. \n16. So we are of the considered view that when the assessment in this \ncase has been framed on the basis of search conducted at the premises \nof assessee himself wherein no incriminating material was found/seized \nrather the entire evidence discussed in this case was seized in the case \nof search on the third party and in these circumstances assessment was \nrequired to be framed under section 143C and not under section 153A of \nthe Act and as such not sustainable in the eyes of law. \n17. Moreover, the entire assessment order has been framed by the AO on \nthe basis of one excel sheet found in possession of Mr. Dipak Padia and \nhis statement who has referred to the transaction as discussed by the \nLd. CIT(A) by thrashing the facts which further support the case of the \nassessee that these transactions referred to by the assessee belong to \nMr. Nilesh Bharani and not the assessee. Moreover, Mr. Dipak Padia \nwhose statement has been referred in para 5.19 of the assessment order \nhas named one Mr. Rashmin Rughani and has not named assessee as \nhis boss. Moreover, liability of addition cannot be fasten on the basis of \nstatement only without any corroborative evidence. \n18. Furthermore, when the AO has provided an opportunity of cross \nexamination of one Mr. Nilesh Bharani to the assessee it has proved on \nrecord in the cross examination that the transactions between them (Mr. \nNilesh Bharani and the assessee) were through banking channel and \nTDS and brokerage were deducted as is evident from question No.6 of the \nstatement of Mr. Nilesh Bharani recorded by the AO. Moreover, during the \nrecording of statement and cross examination of Mr. Nilesh Bharani \nparties have confirmed that they had transactions with banking channel \nonly. \n19. In view of what has been discussed above there is no incriminating \nevidence against the assessee from the material seized from the premises \nof Mr. Nilesh Bharani and in these circumstances the Ld. CIT(A) has \nvalidly and legally deleted the addition made by the AO under section 69 \n& 56 of the Act. So the appeals filed by the Revenue for A.Y. 2012-13 to \n2017-18 are dismissed. \n20. So far as addition made by the AO in A.Y. 2018-19 is concerned, \nfacts and evidence relied upon by the AO are same but in A.Y. 2018-19 \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n13 \nthe AO has made the addition on account of interest earned/received by \nthe assessee to the tune of Rs.22,57,83,125/- from A.Y. 2012-13 to A.Y. \n2018-19 on the undisclosed investment in loans amounting to \nRs.50,25,00,000/- which is consequential, because when the addition \nmade by the AO under section 69 of the Act for A.Y. 2012-13 to A.Y. \n2017-18 is not sustainable the consequential addition on account of \ninterest in A.Y. 2018-19 is also not sustainable, hence rightly deleted by \nthe Ld. CIT(A). So appeal filed by the Revenue for A.Y. 2018-19 is also not \nsustainable, hence ordered to be dismissed. 21. In view of what has been \ndiscussed above, appeals filed by the Revenue for A.Y. 2012-13 to A.Y. \n2018-19 are hereby dismissed. 22. Since the assessee has filed the cross \nobjections just to support the findings returned by the Ld. CIT(A) cross \nobjections filed by the assessee for A.Y. 2013-14, 2014-15, 2015-16 & \n2016-17 are also dismissed. \n12. As per section 153C of the Act, notwithstanding anything \ncontained in section 139, 147, 148, 149, 151 and 153 where the \nassessing officer is satisfied that any money bullion, jewellery \nbullions, article or things seized or requisitioned belongs to or the \nbooks of accounts or documents seized or pertains or pertain or \nany other information contained therein relates to a person other \nthan the person referred to in section 153A (searched person) then \nthe assessing officer of the searched person handover the books of \naccounts, documents or valuable articles or things or documents \nor the assets to the officer having jurisdiction over such other \nperson and issue notice and assess or reassess the income as per \nsection 153C of the Act. As provided in section 153C once the \nconditions are satisfied for invoking the jurisdiction u/s 153C then \nthe assessment must be made u/s 153C only. However, in the \ncase of the assessee the AO has not applied his mind to initiate \nproceedings u/s 153C of the Act as the seized material was found \nand seized from the premises of the third party as discussed. It is \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n14 \nsettled law that the recording of satisfaction by the assessing \nofficer of the searched person is sine qua non to initiate \nproceedings u/s 153C of the Act even in case where the assessing \nofficer of the searched person and the other person is the same. \nThe CBDT vide Circular No. 7/2003 dated 05.09.2003 had also \nexplained the procedure for making assessment u/s 153A and \n153C of the Act. It is also clear from the provision of section 153C \nand section 153A of the Act that these are the separate \nindependent provisions because of non-obstante clause begins \nwith the said sections. In the case of the assessee, the AO \nincorrectly without application of mind has not issued notice u/s \n153C of the Act and instead of complying with the provisions of \nsection 153C of the Act, proceeded with assessment u/s 153A of \nthe Act. The AO has initiated assessment u/s 153A of the Act \nmerely on the basis of statement recorded u/s 132(4) at the \npremises of the assessee in a separate search action where no \nincriminating material was found and the incriminating material \nwas found and seized from different search action carried on the \nthird parties under the different warrant of authorization to search \nthat premises. Under the circumstances, the assessing officer has \nto adhere to the provisions of section 153C while relying upon \nmaterial seized during search in the case of third parties, \ntherefore, the assessing officer was not justified to make addition \nin the absence of any incriminating material found during the \ncourse of search action at the premises of the assessee. \nConsidering section 153C start with a non-obstante clause which \nprovide that in case of a conflict between the provisions of section \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n15 \n153C and other section the special provision of section 153C will \nprevail over the other provisions. The Hon’ble Supreme Court in \nthe case of PCIT vs Abhisar Buildwell (P) Ltd. (2023) 149 \ntaxmann.com held that under the provisions of section 153A the \nAO was not justified to make addition in the absence of any \nincriminating material found and seized. Considering the fact \nfindings and circumstances as discussed (supra) the action of the \nassessing officer to make addition u/s 153A of the Act on the basis \nof material found and seized from the search action conducted on \nthe parties other than the assessee in a different search action was \nnot justified. Since in the case of the assessee, it is evident that \ndocuments on the basis of which addition was made u/s 153A \nassessment was actually found and seized from the different \nsearch action carried out on 07.10.2017 at the premises of \nEvergreen Enterprises not from the premises of the assessee, \ntherefore, the assessment on the basis of those documents should \nhave been carried out u/s 153C of the Act and not u/s 153A of the \nAct. It is clearly evident that assessing officer has not applied his \nmind upon the material found and seized and no assessment \nproceedings has been initiated u/s 153C of the Act. Therefore, \nafter following the judicial pronouncements as referred above, we \nfind merit in the ground of appeal of the assessee that addition \nmade u/s 153A of the Act is legally not valid accordingly, the \nground no. 1 to 4 of the appeal of the assessee are allowed. \n13. Since we have quashed the assessment proceedings made \nu/s 153A of the Act, therefore, other grounds raised by the \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n16 \nassessee on merits become academic not appropriate to discuss. In \nthe result, the appeal of the assessee is allowed. \nITA No. 6494/M/2024 (A.Y. 2013-14) \n14. Since the similar issue on identical fact, we have allowed the \nlegal ground of appeal of the assessee that assessment made u/s \n153A on the basis of incriminating document found and seized \nfrom the search action carried out at the premises of third party \nwas not valid, therefore, applying the finding of ITA No. \n6493/M/2024 mutatis mutandis the ground no. 1 to 4 of the \nappeal of the assessee are allowed. The other ground of appeal of \nthe assessee 5 to 7 become infructuous and left open as discussed. \nITA No. 6495/M/2024 (A.Y. 2014-15) \n15. Since the similar issue on identical fact, we have allowed the \nlegal ground of appeal of the assessee that assessment made u/s \n153A on the basis of incriminating document found and seized \nfrom the search action carried out at the premises of third party \nwas not valid, therefore, applying the finding of ITA No. \n6493/M/2024 mutatis mutandis the ground no. 1 to 4 of the \nappeal of the assessee are allowed. The other ground of appeal of \nthe assessee 5 to 7 become infructuous and left open as discussed. \nITA No. 6496/M/2024 (A.Y. 2015-16) \n16. Since the similar issue on identical fact, we have allowed the \nlegal ground of appeal of the assessee that assessment made u/s \n153A on the basis of incriminating document found and seized \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n17 \nfrom the search action carried out at the premises of third party \nwas not valid, therefore, applying the finding of ITA No. \n6493/M/2024 mutatis mutandis the ground no. 1 to 4 of the \nappeal of the assessee are allowed. The other ground of appeal of \nthe assessee 5 to 7 become infructuous and left open as discussed. \nITA No. 6497/M/2024 (A.Y. 2016-17) \n17. Since the similar issue on identical fact, we have allowed the \nlegal ground of appeal of the assessee that assessment made u/s \n153A on the basis of incriminating document found and seized \nfrom the search action carried out at the premises of third party \nwas not valid, therefore, applying the finding of ITA No. \n6493/M/2024 mutatis mutandis the ground no. 1 to 4 of the \nappeal of the assessee are allowed. The other ground of appeal of \nthe assessee 5 to 7 become infructuous and left open as discussed. \nITA No. 6498/M/2024 (A.Y. 2017-18) \n18. Since the similar issue on identical fact, we have allowed the \nlegal ground of appeal of the assessee that assessment made u/s \n153A on the basis of incriminating document found and seized \nfrom the search action carried out at the premises of third party \nwas not valid, therefore, applying the finding of ITA No. \n6493/M/2024 mutatis mutandis the ground no. 1 to 4 of the \nappeal of the assessee are allowed. The other ground of appeal of \nthe assessee 5 to 7 become infructuous and left open as discussed. \nITA No. 6499/M/2024 (A.Y. 2018-19) \n\n \nITA Nos. 6493 to 6499/Mum/2024 \nBipin Dahyalal Savla \n \n18 \n19. The assessing officer has made assessment u/s 143(3) of the \nAct and computed the interest amount of Rs. 1,90,74,900/- \npertaining to the loan amount of Rs. 13,59,00,000/- advanced by \nthe assessee for the various assessment year as discussed above in \nthis order. Since we have quashed the assessment proceedings \ncarried out u/s 153A of the Act in the case of the assessee \ntherefore, the impugned addition on the basis of impugned loan \namount is not valid. Therefore, this appeal of the assessee is also \nallowed. \n20. In the result, all the appeals of the assessee are allowed. \nOrder pronounced in the open court on 21.03.2025. \n \n \n Sd/- Sd/- \nJUSTICE (RETD.) C.V. BHADANG AMARJIT SINGH \n PRESIDENT ACCOUNTANT MEMBER \n \n \nMumbai, Dated: 21.03.2025 \nBiswajit, Sr. P.S. \n \nCopy to: \n \n1. The Appellant \n2. The Respondent \n3. The CIT, \n4. The DR \n \n \n \n \n//True Copy// \n \n \n[ \n \n \n \n \n \n \n \n \n \n \n By Order \n \n \n Assistant Registrar \n ITAT, Mumbai Benches, Mumbai \n \n"