ATUL CHANDRA DAS. ,KOLKATA V. DCIT,C.C-1(4),KOLKATA. , KOLKATA

ITSSA 178/KOL/2023

AI Insights

The case involves appeals by Atul Chandra Das against the orders of the Commissioner of Income-tax (Appeals), Kolkata, which confirmed the additions made by the Assessing Officer for the assessment years 2011-12 to 2014-15. The appeals were initially time-barred, but the delay was condoned based on the affidavit provided by the assessee. The core issue was the legality of additions made to the assessee's income in the absence of incriminating material during a search operation conducted under section 132 of the Income Tax Act. The Tribunal referenced decisions from the Hon'ble Apex Court, particularly the cases of Jute Corporation of India Ltd. Vs CIT and National Thermal Power Co. Ltd v. CIT, which supported the assessee's position that no additions could be made without incriminating material in cases of unabated assessments.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 41074 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-11-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 29-11-2023
• Other Referred Cases: Jute Corporation of India Ltd. Vs CIT, National Thermal Power Co. Ltd v. CIT, PCIT v. Abhisar Buildwell P. Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVEEN KISHORE
• Assessee Lawyers: A. K. TIBREWAL
• Keywords: Condonation of delay; Set aside
• Section: 143(3); 132; 153A; 139

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM IT(SS)A No.175 to 178/KOL/2023 (Assessment Years: 2011-12 to 2014-15) Atul Chandra Das D-2/7, Block EB, Sector-1, Labony House Estate, Salt Lake, Kolkata-700064, West Bengal Vs. DCIT, C.C -1(4), Kolkata Aaykar Bhavan Porva, 110, Shantipally, EB Byepass, Kolkata-700107, West Bengal (Appellant) (Respondent) PAN No. AEBPD9758H Assessee by : Shri A.K. Tibrewal, AR Revenue by : Shri Praveen Kishore, CIT DR Date of hearing: 05.11.2024 Date of pronouncement : 27.11.2024 O R D E R Per Rajesh Kumar, AM: These are the appeals preferred by the assessee against the order of the Commissioner of Income-tax (Appeals), Kolkata-20, (hereinafter referred to as the “Ld. CIT(A)”]even dated 11.07.2023 for AYs2011-12 to 2014-15. 02. At the outset, registry we note that the registry has given remarks on the the appeal file that the appeals of the assessee are time barred by 81 days and applications for condonation of delay along with supporting affidavit has been placed in file. The contents of the said affidavits are similar in all the appeals, hence, we reproduce the contents of the affidavit for A.Y. 2011-12 as under: Page | 2 IT(ss)A Nos. 175to 178/Kol/2023 Atul Chandra Das; A.Ys. 2011-12 to 2014-15 “I, Atul Chandra Das, aged about 61 years, son of Lal Mohan Das, having residential address at D-2/7, Block EB, Sector-1, Labony Housing Estate, Salt Lake, Kolkata - 700 064 do hereby state as under; 1) That I am fully conversant with the facts stated below: 2) That the appeal filed by the assessee company before the Ld. Commissioner of Income Tax (Appeals) 20, Kolkata, was disposed on 11.07.2023 for the AY 2011-12 to 2017-18 vide the following reference nos. A.Y. DIN Appeal No. 2011-12 ITBA/APL/8/250/2023-24/1054284601(1) CITIA), Kolkata 20/10748/2018-19 2012-13 ITBA/APL/S/250/2023-24/1054285194(1) CIT(A), Kolkata20/10749/2018-19 2013-14 ITBA/APL/S/250/2023-24/1054285902(1) CIT(A), Kolkata- 20/10750/2018-19 2014-15 ITBA/APL/S/250/2023-24/1054282954(1) CIT(A), Kolkata- 20/10751/2018-19 2015-16 ITBA/APL/S/250/2023-24/1054286896(1) CIT(A), Kolkata- 20/10752/2018-19 2016-17 ITBA/APL/S/250/2023-24/1054286443(1) CIT(A), Kolkata- 20/10753/2018-19 2017-18 ITBA/APL/S/250/2023-24/1054683728(1) CIT(A), Kolkata- 20/10754/2018-19 The said orders were received on the ITBA Portal on 11.07.2023. 3) That the time for filing the appeal before this Tribunal was to expire on 10.09.2023. 4) That the counsel of the assessee at the relevant time did not advise the assessee the necessity for filing the appeal against the said appellate order before this Tribunal. 5) The Assessee not being convinced sought the services of another Professional /Counsel and accordingly the appeal is being filed on his advice. 6) That thus there is a delay of 79 days in filing the appeal before this Tribunal which may kindly be condoned. VERIFICATION 1, Atul Chandra Das, the appellant, do hereby verify that the contents of Para 1 to 6 are true to the best of my knowledge and belief.” Page | 3 IT(ss)A Nos. 175to 178/Kol/2023 Atul Chandra Das; A.Ys. 2011-12 to 2014-15 03. After hearing both the sides and in view of the above contents of the affidavit, we note that the assessee was prevented from sufficient cause for being able to file the appeal within the statutory time limit and, therefore, we condone the delay in filing the appeal and admit the same for adjudication. IT(SS)A No. 175/KOL/2023 04. The assessee has raised additional ground vide letter dated 12.08.2024, which is extracted below- (1) That the learned Commissioner of Income Tax (Appeals) erred in dismissing the Appeal and confirming the additions made by Ld. Assessing Officer by disturbing the income declared in the return of income originally filed u/s 139 of the Act although the assessment for the subject assessment year 2011-12 did not abate.\" (ii) That the learned Commissioner of Income Tax (Appeals) erred in dismissing the Appeal and confirming the additions made in the Assessment Order passed u/s 143(3)/153 of the Act pursuant to an illegal search conducted by the Investigation Wing u/s 132 of the Act. “” 05. After hearing the rival contentions and perusing the materials available on record. We find that the issue raised by the assessee is truly and purely a legal issue that no addition can be made in this case of unabated search assessment where there is no incriminating material seized during search operation. In our opinion and in view of the facts qua the said ground being available on record before us, no further verification of facts are required to be done from any quarter whatsoever. The appeal of the assesse are squarely covered by following the decision of Hon'ble Apex court in the case of Jute Corporation of India Ltd. Vs CIT in 187 ITR 688 and National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 (SC).The Hon’ble Apex Court Page | 4 IT(ss)A Nos. 175to 178/Kol/2023 Atul Chandra Das; A.Ys. 2011-12 to 2014-15 has decided in both the cases that the assessee can raise the additional ground at any appellate stage. Considering the facts of the case in the light of the above decisions, we are inclined to admit the additional ground for adjudication 06. The ld. AR submitted that the search in this case was conducted on the assessee on 9.12.2016. The assessment year in this regard is 2011-12. The ld. AR submitted that on the date of search the assessment has already attained finality as no proceedings were pending as on date and also the time limit for issuing notice u/s 143(2) of the Act has already elapsed. The ld. AR therefore, submitted that in view of the provisions of Section 153A of the Act, the addition in case of unabated assessment can only be made on the basis incriminating material found during the course of search and not otherwise. The ld. AR stated that since in the assessee’s no incriminating material was found during the course of search and therefore, the case of the assessee is squarely covered by the decision of Hon'ble Apex court in case of PCIT v. Abhisar Buildwell P. Ltd. (2023)454 ITR 212(SC), wherein it has been held that in respect of unabated and completed assessment on the date of search no addition can be made in absence of any incriminating material seized during the course of search. 07. The ld. DR on the other hand relied on the orders of the authorities below and submitted that some time may be allowed so that the facts could be got verified from the AO, whether there is any incriminating material in search or not as the same was not coming out from the records either from the assessment order or appellate order as there was no reference to any seized incriminating material. Accordingly, Page | 5 IT(ss)A Nos. 175to 178/Kol/2023 Atul Chandra Das; A.Ys. 2011-12 to 2014-15 the time is allowed to the ld. DR to file report form the AO within ten days. Even after the expiry the time allowed to the department no report was filed and accordingly, the appeal was disposed off on the facts available on record after taking into consideration of both the parties. 08. The undisputed facts as culling out of the records before us are that the search action u/s 132(1) of the Act was conducted on the assessee on 9.12.2016 and on the date of search, the impugned assessment year was unabated and has already attained finality. We note that there is no reference of incriminating material found during the course of search for making addition neither by the AO nor by the ld. CIT(A) and therefore, the addition made by the ld. AO in the assessment framed u/s 153A read with section 143(3) of the Act are without jurisdiction and consequently, we are not in a position to sustain the order passed by the ld. CIT (A) on this issue. The case of the assessee is squarely covered by the decision Abhisar Buildwell P. Ltd. (supra). Accordingly , we set aside the above order of ld. CIT (A) and direct the ld. AO to delete the addition. IT(SS)A Nos. 176 to 178/KOL/2023 09. In IT(SS)A Nos. 176 to 178/KOL/2023, the assessee has also raised similar additional grounds in these appeals challenging the addition made by the ld. AO for want of any incriminating material seized during the search as these are unabated assessment years.Since, we have already decided the issue in IT(SS)A No. 175/KOL/2023 for A.Y. 2011-12, wherein we have allowed the appeal of the assessee by directing to delete the addition by following the decision of Hon'ble Apex court in the case of Abhisar Buildwell P. Ltd. (supra). Page | 6 IT(ss)A Nos. 175to 178/Kol/2023 Atul Chandra Das; A.Ys. 2011-12 to 2014-15 Accordingly, our decision in that appeal would apply mutatis mutandis in these appeals as well. Consequently, the appeals of the assessee are allowed. 010. In the result, the appeals of the assessee are allowed. Order pronounced in the open court on 27.11.2024. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:27.11.2024 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "