Case Law Details
A.P. Refinery Pvt. Ltd Vs DCIT (ITAT Chandigarh)
No Addition could be made under section 153A of Income Tax Act, 1961 in absence of incriminating material found during course of search under section 132
Conclusion: Addition under Section 153A could not be made in the absence of incriminating material found during the course of a search conducted under Section 132. In case no incriminating material was unearthed during the search, AO could not reassess taking into consideration the other material in respect of completed assessments/unabated assessments.
Held: Assessee-company was engaged in the business of manufacturing and trading edible oils. After completing the scrutiny assessment, AO passed an assessment order under Section 143(3) after effecting a disallowance of Rs. 3,00,000/- out of expenses debited to the Profit and Loss Account. When a search and seizure operation was conducted in Group Companies, including the registered office of assessee, a notice under Section 153A was issued to assessee. In response to such notice, a return of income was filed under Section 153A showing income at Rs. 15,82,649/-. Thereafter, an order was passed under Section 153A read with Section 143(3) of the Income-Tax Act. Aggrieved by the order, the assessee filed an appeal before the CIT(A), who confirmed the order. Thus, assessee filed a second appeal before the Tribunal. It was held that in case of completed assessment and not abated due to initiation of search u/s 132 or making of requisition u/s 132A, AO had to reassess the total income of the assessee and the assessment already completed could be tinkered with or distrusted where some incriminating material was found and seized during the course of search or requisition as case may be indicating undisclosed income of the assessee. Therefore, AO would assume the jurisdiction to reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the return. In case no incriminating material was unearthed during the search, the AO could not reassess taking into consideration the other material in respect of completed assessments/unabated assessments. There was no linkage or nexus which had been stated or established by the AO with any such hard disk seized during the course of search as far as the determination of unaccounted sales of Rs 2,77,18,768/- and profit thereon determined at Rs 23,72,728/- which had been brought to tax. Therefore, the addition of Rs 23,72,728/- made by the AO during the reassessment proceedings completed u/s 153A was undisputedly not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act but based on other material/documentation available with the AO and being a case of completed/unabated assessment, in absence of any incriminating material found during the course of search, the addition so made could not be sustained following the dicta laid down in “Abhisar Buildwell P. Ltd.”
FULL TEXT OF THE ORDER OF ITAT CHANDIGARH
This is an appeal filed by the Assessee against the order of the Ld. CIT(A)-5, Ludhiana dt. 20/05/2022 pertaining to Assessment Year 2011-12.
2. In the present appeal, the assessee has raised the following grounds of appeal:
“1. That the Learned CIT(A) was not justified to uphold the action of the Learned Assessing Office in initiating proceedings u/s 153A in the absence of any incriminating material found during the course of search.
2. That order passed u/s 250(6) of the Income Tax Act, 1961 by the Learned Commissioner of Income Tax (Appeals)-5, Ludhiana is against law and facts on the file in as much as he was not justified to arbitrarily uphold an addition of Rs. 23,72,728/- representing G.P. rate @ 8.56% on alleged unaccounted sales of Rs. 2,77,18,768/- allegedly made by the appellant company as worked out on the basis of certain documents supplied by one Sh. Raj Kumar, brother of Late Sh. Ashwani Kumar an ex-employee of the appellant company.
3. That the Learned CIT(A) gravely erred in upholding the impugned addition of Rs. 23,72,728/- despite the fact that no incriminating document was found during the course of search at the appellant’s” premises on 31.08.2016.
4. That the Learned CIT(A) gravely erred in upholding an addition of Rs. 23,72,728/-on account of estimated profit on alleged unaccounted sales despite the fact that in spite of specific request, the appellant was never afforded an opportunity to cross examine Sh. Raj Kumar, brother of Late Sh. Ashwani Kumar.
3. During the course of hearing, the Ld. AR submitted that the assessee, a Private Limited Company, is engaged in the business of manufacturing and trading of edible oils. For the previous Year relevant to Assessment Year 2011-12, the year under consideration, the assessee filed its return of income on 22.09.2011 declaring an income at Rs. 12,82,649/-. The case of the assessee was taken up for scrutiny, and, the same was assessed under Section 143(3) of the Income-Tax Act, 1961 vide order dated 11.03.2014 at Rs. 15,82,649/-, after effecting a disallowance of Rs. 3,00,000/- out of Expenses debited to Profit and Loss Account.
4. It was submitted that a Search and Seizure operation was conducted on 31.08.2016 in Group Companies including the registered office of the assessee at Jagraon, District Ludhiana. Notice under Section 153A of the Income-Tax Act, 1961 was issued to the assessee. In response to such notice, a return of income was filed on 30.04.2018 under Section 153A of the Income-Tax Act, 1961 showing income at Rs. 15,82,649/-. An order was passed on 31.12.2018 under Section 153A read with Section 143(3) of the Income-Tax Act, 1961 assessing income at Rs. 42,97,777/-, after effecting additions of Gross Profit of Rs. 23,72,728/- and Rs. 3,42,400/- calculated @ 8.56% of alleged unaccounted sales of Rs. 2,77,17,768/- and Rs. 40,00,000/- respectively.
5. It was submitted that during the course of proceedings, a TEP had been received from Sh. Raj Kumar of Dhuri through DGIT(Inv.), Chandigarh and it was alleged that Late Sh. Ashwani Kumar, brother of Sh. Raj Kumar and former employee of M/s A.P. Refinery (P.) Ltd. used to visit the fields with trucks carrying RB Oils for collecting payments from Debtors which also included certain cash receipts thereof against sales made to different parties. Moreover, from the perusal of an assessment order dated 31.12.2018 for the relevant assessment year under consideration, there is no mention of any incriminating material found during the course of search which should form the basis of an addition under Section 153A of the Income-Tax Act, 1961. Accordingly, a mere information from the Office of the Deputy Director of Income-Tax (Investigation), Chandigarh could not be construed/termed as an incriminating material found during the course of a Search. When no incriminating material is found during the course of Search, no addition could be made under Section 153A read with Section 143(3) of the Income-Tax Act, 1961.
6. Reference was drawn to judicial pronouncements by various relevant Courts wherein, it has been held that additions made by the Ld. Assessing Officer in the absence of incriminating material are not sustainable, and, needs to be deleted, hereunder:
i. The Hon’ble High Court of Delhi in the case of Commissioner of Income-Tax, Central-Ill Vs. Kabul Chawla reported at [2016] 380 ITR 573 (Delhi) has laid down that:
“Completed assessments can be interfered with by Assessing Officer while making assessment under section 153 A only on basis of some incriminating material unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment.”
ii. The Hon’ble High Court of Delhi in the case of Principal Commissioner of Income-Tax-9 Vs. Ram Avatar Verma reported at [2017] 395 ITR 252 (Delhi) has held that:
“No addition can be made while making assessment under section 153 A in absence of any incriminating material unearthed during course of search or requisition of documents.”
iii. The Hon’ble High Court of Bombay in the case of Commissioner of Income-Tax-20 Vs. Deepak Kumar Agarwal reported at [2017] 86 com 3(Bombay) has Laid down that:
“Assessment U/s 153A of the Income-Tax Act, 1961 can be made only on basis of incriminating material found in search U/s 132 of the Income-Tax Act, 1961 and only income related to incriminating documents found during search can be considered in assessment.”
iv. The Hon’ble high Court of Gujarat in the case of Principal Commissioner of Income-Tax-4 Vs. Saumya Construction (P.) Ltd. reported at [2016] 387 ITR 529 (Gujarat) has upheld that:
“Under section 153 A, an assessment has to be made in relation to search or requisition, namely, in relation to material disclosed during search or requisition; if no incriminating material is found during search, no addition can be made on basis of material collected after search.”
v. The Hon’ble High Court of Bombay in the case of Commissioner of Income-Tax, Central-II, Mumbai Vs. Gurinder Singh Bawa reported at [2016] 386 ITR 483 (Bombay) has Laid down that:
“Proceedings under section 153 A were without jurisdiction where no assessments were pending at that time and no incriminating evidence was found during search.”
vi. The Hon’ble Income-Tax Appellate Tribunal Division Bench, Chandigarh in the case of M/s Mala Builders Pvt. Ltd. Vs. ACIT-CC-II. Chandigarh bearing ITA Nos. 433 to 437/Chandi/2014 had held that:
“In view of findings that no addition can be made in assessment orders u/s 153A, in the absence of incriminating material found in search, Departmental appeals would stand dismissed.”
7. It was submitted that from the above judicial precedents, it is clear that where no incriminating material/evidence is uncovered in the course of search conducted U/s 132 of the Income-Tax Act. 1961, no addition could be made U/s 153A of the Income-Tax Act, 1961. It was further submitted that the matter is now covered by the recent decision of Hon’ble Supreme Court in case of Pr. CIT Vs Abhisar Buildwell P.Ltd. (2023) SCC Online SC 481. Thus, on this ground alone, the appeal of the assessee deserves to succeed.
8. Per contra, the Ld. DR is heard who has submitted that once a search under section 132 is conducted, the proceedings under section 153A gets automatically attracted. In view of the same, the initiation of proceedings and issue of notice under section 153A by the AO has been found sustainable as per law by the Ld. CIT(A). Further reliance was placed on the order of the AO wherein he has mentioned that during the course of proceedings, a TEP was received from Sh. Raj Kumar of Dhuri through DGIT (Inv.), Chandigarh that his brother Sh. Ashwani Kumar was working as a supervisor with the assessee company and used to collect payments for sales which were mostly in cash and rarely through bank/cheques and there is a page where transactions of Rs.56,34,904/- was noted in detail with the names of the parties and other particulars and scanned copy of the document is reproduced by the AO in the assessment order along with a staff TA & DA bill slip. The AO further mentioned that Sh. Ashwani Kumar who was an employee of M/s. A P Refinery Pvt. Ltd. maintained a diary where complete details of such sales have been noted with the particulars of the parties with their stations, weight of oil sold, rate per quintal, total amount, aggregate thereof, collections and balance amounts on particular dates and this diary had been found from the belongings of Sh. Ashwani Kumar after his death. The AO mentioned that Sh. Ashwani Kumar had put down his signature with date as 20.09.2010 mentioning the name of Kapil Garg which indicates that cash amount of Rs. 56,34,904/- had been given to Sh. Kapil Garg who used to manage the unaccounted activities of the assessee company as all these notings were on letter head of the company M/s A P Refinery Pvt. Ltd. The AO also mentioned that there is another page number 6 of the diary where transactions of Rs. 1,03,46,600/- have been mentioned with complete details and have been made through one Arora Broker of Pathankot where the transactions begin with amount of Rs. 5,34,681/- representing sales of 129.15Qtl of RB Oil @ 4140 per Qtl. totaling to Rs. 5,34,681/- and further amounts have been added back as per scanned copy reproduced in the assessment order. The AO mentioned that it was further observed that the assessee used to issue a bill for certain amount but actually not handed over to the party and the bill was brought back to the company and in lieu of this bill, the company issued a new bill for lesser amount. The AO has given the details for one such bill in the assessment order which shows that the company not only used to execute the transactions outside the books of account but also altered the figures of sales and ultimately lowers the sales. The AO has recorded the statement of Sh. Raj Kumar and reproduced the relevant part in the assessment order. The AO mentioned that the contents of the relevant diary have been duly confronted to the AR vide show cause issued on 07.12.2018 which is reproduced in the assessment order. In the show-cause, the detailed working of amount of Rs. 56,34,704/-, was reproduced along with the figures of TA & DA bills totaling Rs. 4180/- and the details of bill no. 400 having vehicle number, date and quantity was also mentioned in which the original amount at Rs. 4,20,313/- has been changed to Rs. 2,14,625/-. The working of Rs. 4,94,472/- along with the amount received on 12.04.2010 and on 15.04.2010 at Rs. 2,16,450/- and Rs. 1,83,550/-respectively leaving a balance of Rs. 94,472/- was also mentioned. The details of transactions of Rs. 9,80,976/- at page no. 6 along with the amount executed through Sh. Arora Broker of Pathankot amounting to Rs. 1,03,46,600/-was mentioned. The details of transactions with M/s. Keshav Traders, Amritsar of Rs. 1,11,53,176/- and the details as per page no. 8, relating to various parties namely Amritsar Oil Traders, Vaneet Enterprises, Jandiala and Shree Durga Ji Enterprises on 26.02.2010, 27.02.2010 and on 28.02.2010 were also mentioned. Similarly, the details of other parties like Bansal Trading Co., Batala were also confronted The reply filed by the assessee in response to the show cause is also reproduced in the assessment order in which the assessee stated that these papers are not from the original source but from a third person i.e. Sh. Raj Kumar who worked at Ricela Health Foods/ AP Organics which are the main competitors of the assessee company and Sh. Ashwani Kumar died long back probably in the year 2012 and neither Mr. Ashwani Kumar nor Raj Kumar confronted the assessee with the loose sheets till date. The reply of the assessee was considered but not found acceptable and the AO has mentioned that the assessee has tried to side step the issue instead of furnishing the explanations or reconciling the accounts. As per the AO, the assessee has not commented as to whether it was dealings with the parties mentioned in the diary in the preceding or subsequent year and the assessee has not even tried to explain the two bills issued with the same bill numbers but with different amounts and whether these were reflected in its books of account or not. The AO mentioned that the totals have been struck at every page in respect of amounts received and balance thereafter and duly supported by TA/DA bills submitted by Mr. Ashwani Kumar with his signatures and dates. As per the AO, there has been mention of the truck numbers, Doc loaded/unloaded, quantities thereof, rates of labour etc which as per AO is further evidence lead to authenticate the version that the company certainly indulged in unaccounted transactions during the year under consideration. The AO mentioned that the complainant has given the copies of duplicate bills issued by the company reflecting lower sales/ suppression of sales which further proves the manner of executing unaccounted transactions by the company by reflecting lower sales as well as suppression of sales and no rebutting material has been brought on record by the assessee and assessee had not negated any of the ledger accounts confronted during the course of assessment proceedings. Thus , as per the AO, an amount of Rs. 2,77,18,768/- represents the unaccounted sales not recorded in the books of account and therefore, gross average profit @8.56% i.e. 23,72,728/- was added to the taxable income of the assessee. The ld DR has accordingly relied on the order of the lower authorities.
9. We have heard the rival contentions and purused the material available on record. The Hon’ble Supreme Court in the case of Pr. CIT Vs Abhisar Buildwell P. Ltd. judgement dated 24.04.2023, passed in Civil Appeal No. 6580 of 2021 and other connected appeals have held that prior to insertion of Section 153A in the statute, the relevant provision for block assessment was under Section 158BA of the Act, 1961; that the erstwhile scheme of block assessment under Section 158BA envisaged assessment of ‘undisclosed income’ for two reasons, firstly that there were two parallel assessments envisaged under the erstwhile regime, i.e., (i) block assessment under section 158BA to assess the ‘undisclosed income’ and (ii) regular assessment in accordance with the provisions of the Act to make assessment qua income other than undisclosed income; that secondly, the ‘undisclosed income’ was chargeable to tax at a special rate of 60% under section 113, whereas income other than ‘undisclosed income’ was required to be assessed under the regular assessment procedure and was taxable at the normal rate; that therefore, Section 153A came to be inserted and brought on the Statute; that under the Section 153A regime, the intention of the legislation was to do away with the scheme of two parallel assessments and tax the ‘undisclosed’ income too at the normal rate of tax, as against at any special rate; that thus, after introduction of Section 153A and in case of search, there shall be block assessment for six years; that search assessments/block assessments under Section 153A are triggered by conducting of a valid search under Section 132 of the Act, 1961; that the very purpose of search, which is a prerequisite/trigger for invoking the provisions of sections 153A/153C is detection of undisclosed income by undertaking extraordinary power of search and seizure, i.e., the income which cannot be detected in the ordinary course of regular assessment; that thus, the foundation for making search assessments under Sections 153A/153C can be said to be the existence of incriminating material showing undisclosed income detected as a result of search; that on a plain reading of Section 153A of the Act, 1961, it is evident that once search or requisition is made, a mandate is cast upon the AO 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; that as per the provisions of Section 153A, in case of a search under Section 132 or requisition under Section 132A, the AO gets the jurisdiction to assess or reassess the ‘total income’ in respect of each assessment year falling within six assessment years; that however, it is required to be noted that as per the second proviso to Section 153A, the assessment or re-assessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate; that as per sub-section (2) of Section 153A, if any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub- section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner; that therefore, the intention of the legislation seems to be that in case of search only the pending assessment/reassessment proceedings shall abate and the AO would assume the jurisdiction to assess or reassess the ‘total income’ for the entire six years period/block assessment period; that the intention does not seem to be to re-open the completed/unabated assessments, unless any incriminating material is found with respect to concerned assessment year falling within last six years preceding the search; that therefore, on a true interpretation of Section 153A of the Act, 1961, if in case of a search under Section 132 or a requisition under Section 132A, any incriminating material is found, even in case of unabated/completed assessment, the AO would have the jurisdiction to assess or reassess the ‘total income’ taking into consideration the incriminating material collected during the search and other material which would include income declared in the returns, if any, furnished by the assessee as well as the undisclosed income, however, in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act, subject to fulfilment of the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy; that therefore, even in case of block assessment under section 153A and in case of unabated/completed assessment and in case no incriminating material is found during the search, the power of the Revenue to have the reassessment under sections 147/148 of the Act has to be saved, otherwise the Revenue would be left without remedy; that if the submission on behalf of the Revenue, that in case of search even where no incriminating material is found during the course of search, even in case of unabated/completed assessment, the AO can assess or reassess the income/total income taking into consideration the other material, is accepted, in that case, there will be two assessment orders, which shall not be permissible under the law; that the assessment under Section 153A of the Act is linked with the search and requisition under Sections 132 and 132A of the Act; that the object of Section 153A is to bring under tax the undisclosed income which is found during the course of search or pursuant to search or requisition; that therefore, only in a case where the undisclosed income is found on the basis of incriminating material, the AO would assume the jurisdiction to assess or reassess the total income for the entire six years’ block assessment period even in case of completed/unabated assessment; that as per the second proviso to Section 153A, only pending assessment/reassessment shall stand abated and the AO would assume the jurisdiction with respect to such abated assessment; that it does not provide that all completed/unabated assessments shall abate; that if the submission on behalf of the Revenue is accepted, in that case, the second proviso to Section 153A and sub- section (2) of Section 153A would be redundant and/or it would amount to re-writing the said provisions, which is not permissible under the law.
10. While holding as above, their Lordships observed that they were in complete agreement with the view taken by the Hon’ble Delhi High Court in the case of “Commissioner of Income Tax, Central-III Vs Kabul Chawla” (2015) 61 com 412 (Del), dated 28.08.2015 and that in the case of “Pr. Commissioner of Income Tax-4 Vs Saumya Construction” (2016) 387 ITR 529 (Guj) and the decisions of the other High Courts taking the view that no addition can be made in respect of completed assessments in absence of any incriminating material.
11. As such, their Lordships concluded:
i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section 153A;
ii) all pending assessments/reassessments shall stand abated;
iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and
iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfillment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved.
12. It was in view of the conclusion so arrived at, that the appeals and Review Petition filed by the Department were dismissed by the Hon’ble Supreme Court in “Abhisar Buildwell P. Ltd.”.
13. In the instant case, we find that it is a case of completed/unabated assessment which stood completed vide order passed u/s 143(3) dated 11.03.2014 well before the date of search which was conducted on 31.08.2016. As per section 153A of the Act, once a search and seizure action is carried out, the AO has to assess or reassess the total income of the assessee in respect of 6 years immediately preceding the assessment year relevant to the previous year in which a search is conducted or requisition is made. In case the assessment is pending on the date of search the same shall be abated as per proviso to section 153A(1) of the Act and the AO is free to assess the income of the assessee as regular assessment. However, in case of completed assessment and not abated due to initiation of search u/s 132 or making of requisition u/s 132A the AO has to reassess the total income of the assessee and the assessment already completed can be tinkered with or distrusted where some incriminating material is found and seized during the course of search or requisition as case may be indicating undisclosed income of the assessee. Therefore, the AO would assume the jurisdiction to reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the return. In case no incriminating material is unearthed during the search, the AO cannot reassess taking into consideration the other material in respect of completed assessments/unabated assessments.
14. We find that the AO in para 4 of the assessment order has stated that during the course of proceeding, a tax evasion petition has been received from Shri Raj Kumar of Dhuri through DGIT (Investigation) where he talks about his brother Shri Ashwani Kumar who used to work for the assessee company and who has since expired on 10.01.2016 and who used to maintain a diary where certain details were maintained and the said diary was found from the belongings of Shri Ashwani kumar. Basis the notings in the diary and Shri Raj Kumar’s statement as per the order sheet entry dated 10.12.2018 recorded during the course of reassessment proceedings where he has stood by his allegations made in TEP regarding unaccounted sales and proceeds received in cash, a show-cause has been issued by the AO on 7.12.2018 and after taking into consideration the submissions of the assessee but not finding the same acceptable, the AO has determined unaccounted sales of Rs 2,77,18,768/- and profit thereon has been determined at Rs 23,72,728/- which has been brought to tax. The ld CIT(A) has also stated that the source of the document has been clearly mentioned by the AO that these were received in form of TEP through DGIT (Inv) and statement of Shri Raj Kumar was also recorded in respect of these documents to substantiate that document contain unaccounted sales and that all the proceeds has been received in cash and the same has not been disputed by the Revenue. We therefore find that it is a case where the whole basis of addition made by the AO is on receipt of TEP through DGIT (Investigation) and notings in the diary found from the belongings of Shri Ashwani kumar who has since expired and statement of Shri Raj Kumar recorded during the course of reassessment proceedings u/s 153A of the Act and the same is availability of certain other material/documentation with the AO during the course of reassessment proceedings and not material/documentation that too, incriminating found during the course of search in case of assessee.
15. As far as any incriminating material found during the course of search, we find that the AO in para 3 of the assessment order talks about hard drives seized during the course of search and detailed questionnaire dated 17.09.2018 and submissions filed by the assessee which have been stated by the AO as examined and placed on record and in respect of which no addition has been made by the AO. Further, there is no linkage or nexus which has been stated or established by the AO with any such hard disk seized during the course of search as far as the determination of unaccounted sales of Rs 2,77,18,768/- and profit thereon determined at Rs 23,72,728/- which has been brought to tax
16. In view of the above, we find that the addition of Rs 23,72,728/- made by the AO during the reassessment proceedings completed u/s 153A is undisputedly not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act but based on other material/documentation available with the AO and being a case of completed/unabated assessment, in absence of any incriminating material found during the course of search, the addition so made cannot be sustained following the dicta laid down by the Hon’ble Supreme Court in “Abhisar Buildwell P. Ltd.” In the result, the addition of Rs 23,72,728/- is directed to be deleted.
17. In the result, the appeal of the assessee is allowed.
Order pronounced in the open Court on 17/10/2023
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