Sh. Mukesh Goel, Haryana V. DCIT, New Delhi

CO 141/DEL/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 5966 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 13-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 07-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ TONDON
• Assessee Lawyers: K C JAIN
• Keywords: Opportunity of being heard; Accommodation entries; Documents seized
• Section: 143(3); 142(1); 153A; 131; 132; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NOS. 1036-1040/DEL/2010 A.YRS.. : 1999-2000 TO 2003-04 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-09, NEW DELHI ROOM NO. 357, ARA CENTRE, JHANDEWALAN, NEW DELHI VS. SH. MUKESH GOEL, S/O SH. RAJ KUMAR GOEL, H.NO. 25, GALI NO. 3, NAI BASTI, BAHADUR GARH, HARYANA (PAN/GIR NO. : AGTPG5082B) CROSS OBJECTION NOS. 139-143/DEL/2010 (IN ITA NOS. 1040, 1039, 1038, 1036, 1037/DEL/2010) AYRS. : 2003-04, 2002-03, 2001-02, 1999-2000 & 2000-01 MUKESH GOEL, H. NO. 25, GALI NO. 3, NAI BASTI, BAHADURGARH, HARYANA (PAN/GIR NO. : AGTPG5082B) VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-09, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI I.T.A. NOS. 4082/DEL/2010 A.Y.. : 2005-06 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-09, NEW DELHI ROOM NO. 357, ARA CENTRE, JHANDEWALAN, NEW DELHI VS. SH. MUKESH GOEL, S/O SH. RAJ KUMAR GOEL, H.NO. 25, GALI NO. 3, NAI BASTI, BAHADUR GARH, HARYANA (PAN/GIR NO. : AGTPG5082B) 2 CROSS OBJECTION NO. 336/DEL/2010 (IN ITA NO. 4082/DEL/2010) A.Y.. : 2005-06 MUKESH GOEL, H. NO. 25, GALI NO. 3, NAI BASTI, BAHADURGARH, HARYANA (PAN/GIR NO. : AGTPG5082B) VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-09, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI ITA NO. 5119/DEL/2010 A.Y.. : 2005-06 MUKESH KUMAR GOEL, H. NO. 25, GALI NO. 3, NAI BASTI, BAHADURGARH, HARYANA (PAN/GIR NO. : AGTPG5082B) VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-09, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. K.C. JAIN, ADV. DEPARTMENT BY : SH. RAJ TONDON, C.I.T. (D.R.) ORDER ORDER ORDER ORDER PER PER PER PER BENCH BENCH BENCH BENCH THESE APPEALS BY THE ASSESSEE AND REVENUE AND CR OSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). SI NCE THE ISSUES IN THESE APPEALS ARE CONNECTED AND THEREFORE, THE AP PEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON OR DER FOR THE SAKE OF CONVENIENCE. 3 ITA NOS. 1036 ITA NOS. 1036 ITA NOS. 1036 ITA NOS. 1036- -- -1040 1040 1040 1040 2. THE COMMON ISSUE RAISED IS THAT IN THESE APPEALS IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ANNULL ING THE ORDERS U/S 153A READ WITH SECTION 144 AS THE ASSESSING OFF ICER WAS JUSTIFIED IN CONSIDERING THAT THE ACTION U/S 132 OF THE INCOM E TAX ACT, 1961 WAS INITIATED IN THE CASE OF THE ASSESSEE, AND THEREFO RE, IN INITIATION OF THE PROCEEDINGS U/S 153A IN THE CASE OF THE ASSESSEE. 3. ACTION U/S 132 OF THE ACT WAS TAKEN ON 13.12.20 04 IN THE FOLLOWING BANK ACCOUNTS: I) ACCOUNT NO. 1867 WITH HDFC BANK, CHANDNI CHOWK, DELHI IN THE NAME OF M/S LAXMI INTERNATIONAL. II) ACCOUNT NO. 6433 WITH HDFC BANK, CHANDNI CHOWK, DELHI IN THE NAME OF RISHAB AGRO OVERSEAS. III) ACCOUNT NO. 800480 WITH TAMILNADU MERCANTILE B ANK, CHANDNI CHOWK, DELHI IN THE NAME OF CHIRAG ENTERPRI SES. IV) ACCOUNT NO. 1144 WITH IDBI BANK, CHANDNI CHOWK, DELHI IN THE NAME OF CHIRAG ENTERPRISES. IN TOTAL ` 27,96,201/.- WAS SEIZED FROM THESE FIVE A CCOUNTS. 3.1 IT HAS BEEN MENTIONED BY THE ASSESSING OFFICE R THAT SHRI MUKESH GOEL APPEARED BEFORE THE DDIT(INVESTIGATION) AFTER SEARCH AND HIS STATEMENT WAS RECORDED U/S 131 OF THE ACT. BEFORE HIM HE ADMITTED THAT THESE FIRMS ARE DUMMY CONCERNS AND CONT ROLLED BY HIM FOR THE PURPOSE OF GIVING ACCOMMODATION ENTRIES. AS MENTIONED BY ASSESSING OFFICER IN PARA 2.3 OF HIS ORDER, BASED ON THESE FINDINGS AND 4 ADMISSION OF THE ASSESSEE NOTICES U/S 153A WERE ISSU ED BY HIM ON 10.11.2006 FOR ALL THESE FIVE YEARS IN THE CASE OF APPELLANT. 3.2 RETURN OF INCOME IN RESPONSE TO THESE NOTICES W ERE NOT FILED BY THE APPELLANT. THE ASSESSING OFFICER HOWEVER, ISS UED A SHOW CAUSE NOTICE FIXING THE CASE FOR HEARING ON 7.12.2006. B UT THE APPELLANT APPEARED ON HIS OWN BEFORE ASSESSING OFFICER ON 1. 12.2006 AND HIS STATEMENT WAS RECORDED U/S 131 OF THE ACT. AS MEN TIONED BY ASSESSING OFFICER , THE APPELLANT GAVE A LIST OF DU MMY CONCERNS CONTROLLED BY HIM IN BENAMI NAMES AS UNDER:- I) M/S HARSH ENTERPRISES IN THE BENAMI NAME OF SH. N AND KISHORE II) M/S CHIRAG ENTERPRISES DO- SH. RAM GOPAL III) M/S LAXMI INTERNATIONAL - DO - SH. DEE PAK JAIN IV) M/S MOHIT INTERNATIONAL - DO - SH. SUB HASH V) M/S ROHAN ENTERPRISES -DO- VI) M/S RAJ KUMAR SHYAM SUNDER DO - SH. PRAVEE N GOEL VII) M/S RISHAB AGRO OVERSEAS -DO- VIII) M/S SAGAR OVERSEAS -DO- IX) M/S SATYAM OVERSEAS -DO- X) M/S K.D. SALES -DO- 3.3 AS REPRODUCED IN THE ASSESSMENT ORDER, THE APPE LLANT STATED THE MODUS OPERANDI OF HIS BUSINESS AS UNDER:- I IMPORTED GOODS IN THE NAME OF DUMMY CONCERNS BUT ACTUAL IMPORTERS WERE OTHER PARTIES OF THE AREA. I WILL GIVE DETAILS OF THESE IMPORTS AS WELL AS MY INCOME FROM COMMISSION OF 0 .50% PER LAKH BUT I HAD NOT RECEIVED FULL COMMISSION FROM THE PARTIES. I WILL FILE COMPLETE DETAILS. IT IS STATED THAT MR . SUBHAS PROP. 5 MOHIT INTERNATIONAL WAS MY PARTNER OF 50% IN COMMISSIO N IN ALL ABOVE DEALINGS EVIDENCE OF WHICH WILL BE FILED. 3.4 SINCE NO RETURN WAS FILED AND THERE WAS NO COMPL IANCE, CONSIDERING THE TIME BARRING NATURE OF ASSESSMENT, TH E ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT U/S 1 53A READ WITH SECTION 144 OF THE ACT AND MADE ADDITIONS ON ESTIMA TE BASIS AS UNDER:- ASSESSMENT YEAR RETURNED INCOME ADDITION ASSESSED INCOME. 1999-2000 NIL ` 4,00,000/- ` 5,00,000/-* 2000-2001 NIL ` 5,00,000/- ` 5,00,000/- 2001-2002 NIL ` 7,50,000/- ` 7,50,000/- 2002-2003 ` 78,750/- ` 10,00,000/- ` 10,78,750/- 2003-2004 ` 1,01,500/- ` 10,00,000/- ` 11,01,500/ - * I T APPEARS THAT THERE IS MISTAKE IN TAKING THIS INCOME IN THE ORDER. 4. UPON ASSESSEES APPEAL IN THIS REGARD LD. COMMISS IONER OF INCOME TAX (APPEALS) ELABORATELY CONSIDERED THE ISS UE. HE OBSERVED THAT IT IS ESTABLISHED THAT ASSESSING OFFICER IS N OT IN A POSSESSION OF ANY PANCHNAMA EXISTING IN THE NAME OF THE ASSESSEE. THE ASSESSING OFFICER ALSO FAILED TO PRODUCE THE COPY OF WARR ANT AND AUTHORIZATION, IF ANY COMMISSION IN THE NAME OF THE ASSESSEE. HE OBSERVED THAT ASSESSING OFFICER HIMSELF HAS MENTIONED THAT ASS ESSMENT ORDER THAT NOTICES U/S 153A HAD BEEN ISSUED IN THE CASE OF THE ASSESSEE FOR THESE YEARS BASED ON THE SEARCH CONDUCTED ON THE BANK ACC OUNTS, IN THE NAME OF VARIOUS PERSONS AND BASED ON THE STATEMENT OF THE ASSESSEE RECORDED U/S 131 OF THE IT ACT, BEFORE THE DDIT. AS SESSEE HAD ADMITTED THAT THESE ARE HIS DUMMY CONCERNS AND CONTRO LLED BY HIM. BUT LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT IT IS ALSO FACT THAT ASSESSING OFFICER HAS HIMSELF MENTIONED IN THE ORDER THAT 6 PROPRIETORS OF THESE CONCERNS ARE SHRI DEEPAK JAIN , SHRI PRAVEEN GOEL, SHRI RAM GOPAL AND SHRI NAND KISHORE RESPECTIVELY. CONSIDERING THE FACTS OF THE CASE LD. COMMISSIONER OF INCOME TAX (AP PEALS) OBSERVED THAT ASSESSEE MIGHT HAVE BEEN INTERESTED IN THESE B USINESS CONCERNS, BUT CERTAINLY CANNOT BE SAID THAT IT CAN BE CONCLUD ED THAT THE ASSESSEE IS PROPRIETOR OF THESE CONCERNS. THE PROPRIETORS OF THESE CONCERNS ARE DEFINITELY THE PERSONS AS MENTIONED ABOVE EVEN THOU GH THEY MAY BE DUMMY. HE, THEREFORE, HELD THAT HE DID NOT AGREE WI TH THE CONTENTION OF THE ASSESSING OFFICER THAT IT CAN BE SAID THAT THE SEARCH HAS BEEN INITIATED IN THE CASE OF THE ASSESSEE. SINCE, HE HAS ADMITTEDLY CONTROLLING THESE CONCERNS. LD. COMMISSIONER OF I NCOME TAX (APPEALS) FURTHER OBSERVED THAT HE HAS GONE THROUGH THE PANCHNAMA WHEREIN IT IS NOTICED THAT THE WARRANT OF AUTHORIZ ATION WAS EXECUTED ON THE BANK MANAGERS OF THESE BANKS WERE THE ACCOUN TS ARE EXISTING AS THE WARRANT WAS TO SEARCH THE PREMISES VIZ. RES PECTIVE BANK ACCOUNT NUMBERS. NOWHERE IN THESE PANCHNAMAS THE N AME OF THE ASSESSEE WAS MENTIONED. THEREAFTER, LD. COMMISSION ER OF INCOME TAX (APPEALS) REFERRED TO THE PROVISION OF SECTION 153A AND OBSERVED THAT FROM PERUSAL OF THE ABOVE PROVISION, IT WILL B E NOTICED THAT THE PERQUISITE FOR INITIATION OF 153A PROCEEDING IN THE CASE OF ANY PERSONS IS THE INITIATION OF SEARCH U/S 132 (AFTER 31/5/20 03) IN THE CASE OF SUCH PERSONS. JUST BECAUSE A PERSONS IS CONTROLLING SOM E BANK ACCOUNTS STANDING IN NAME OF SOME OTHER PERSONS AND THERE IS A SEARCH IN THE CASE OF SUCH BANK ACCOUNTS, IT CANNOT BE SAID THAT SEARCH HAS BEEN INITIATED IN THE CASE OF THE PERSON HAVING CONTROL OVER THE BANK ACCOUNTS. THE PERSONS SEARCHED AND PERSON IN WHOSE CASE NOTICE U/S 153A TO BE ISSUED SHOULD BE THE SAME PERSON. BASED ON THE DISCUSSION MADE HEREIN ABOVE IT IS ESTABLISHED THAT ACTION U/S 132 HAS NOT BEEN 7 INITIATED IN THE CASE OF THE ASSESSEE AND THEREFORE IT IS HELD THAT THE PROCEEDINGS U/S 153A COULD NOT HAVE BEEN VALIDLY IN ITIATED BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE. 5. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER R EFERRED TO THE TRIBUNAL DECISION IN THE CASE OF JINDAL STAINLESS L TD. V. ACIT 122 ITD 301, DELHI. FINALLY, LD. COMMISSIONER OF INCOME TAX ( APPEALS) HELD THAT IN VIEW OF THE ABOVE PROCEEDINGS U/S 153A CANN OT BE SAID INITIALLY VALID AND THEREFORE HELD AS BAD IN LAW. 6. AGAINST THIS ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 7. WE HAVE HEAR THE RIVAL CONTENTIONS AND IN LIG HT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. 7.1 LD. DEPARTMENTAL REPRESENTATIVE CLAIMED THAT IT MAY BE CORRECT THAT SECTION 153A IS NOT APPLICABLE IN THIS CASE. BUT HE CLAIMED THAT THIS CASE WOULD CERTAINLY FALL UNDER SECTION 153C. 7.2 LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT NOWHE RE THE ASSESSEE NAME IN PANCHNAMA AND HENCE, CLAIMED BY THE ASSESSEE U/S 153A UPON THE ASSESSEE IS BAD IN LAW. WE HAVE CAREFUL LY CONSIDERED THE SUBMISSIONS. WE CAN GAINFULLY REFER THE PROVISIONS OF SECTION 153A AND 153C OF THE IT ACT. 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL 8 (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO F URNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOM E IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRE SCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRES CRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. 153C. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHAL L BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A :] [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUIS ITION UNDER SECTION 132A IN THE SECOND PROVISO TO [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DO CUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON.] 9 [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN REC EIVED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER TH E DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT T O THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITIO N IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEE N ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVE D AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN M ADE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND A SSESS OR REASSESS TOTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MA NNER PROVIDED IN SECTION 153A.] 7.3 FROM THE ABOVE, IT IS ALSO EVIDENT THAT ACTION U /S 153A SHOULD BE INITIATED IN CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A. 7.4 AS REGARDS SECTION 153C, FROM THE PERUSAL OF THE ABOVE, IT IS FOUND THAT WH EN THE ASSESSING OFFICER IS SATISFIED THEN ANY MONEY, BUL LION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOK S OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BE LONG TO A 10 PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDEDOVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THA T ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERS ON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INC OME OF SUCH OTHER PERSON. 7.5 WE FIND THAT THE CONTENTIONS OF THE LD. DEPARTM ENTAL REPRESENTATIVE HAS COGENCY. HOWEVER, ALL THE MATERIA L FACTS IN THIS REGARD ARE NOT AVAILABLE ON RECORD. HENCE, B OTH THE COUNSEL FAIRLY AGREED THAT THE MATTER MAY BE RESTORED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE ISS UE AFRESH. WE FURTHER FIND THAT LD. COMMISSIONER OF INCOME TAX (APPE ALS) IN THESE YEARS HAD ANNULLED THE ASSESSMENT ON THE GROU ND OF JURISDICTION AND HAS NOT ADJUDICATED THE ISSUE ON MER ITS. HENCE, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE IN THESE APPEALS TO THE FILES OF THE ASSESSING OFFICER TO C ONSIDER THE SAME AFRESH AND DECIDE AS PER LAW. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. CROSS OBJECTIONS NOS. 139 TO 143 CROSS OBJECTIONS NOS. 139 TO 143 CROSS OBJECTIONS NOS. 139 TO 143 CROSS OBJECTIONS NOS. 139 TO 143 8. THESE CROSS OBJECTIONS ARE ONLY SUPPORTIVE OF T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). SINCE WE ARE REMITTING THE MAIN ISSUE TO THE FILE OF THE ASSESSING OFFICER, HENCE, THESE CROSS OBJECTIONS HAVE BECOME INFRUCTUOU S AND ACCORDINGLY, THEY ARE DISMISSED AS INFRUCTUOUS. 11 ITA NOS. 5119, 4082 & CROSS OBJECTION NO. 336 ITA NOS. 5119, 4082 & CROSS OBJECTION NO. 336 ITA NOS. 5119, 4082 & CROSS OBJECTION NO. 336 ITA NOS. 5119, 4082 & CROSS OBJECTION NO. 336 9. THESE ARE APPEALS OF THE REVENUE AND ASSESSEE A ND CROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER OF THE L D. COMMISSIONER OF INCOME TAX (APPEALS) DATED 28.6.2010 AND PERTAINS TO ASSESSMENT YEAR 2005-06. 10. WE SHALL FIRST TAKE THE ASSESSEES APPEAL IN I TA NO. 5119. 11. THE GROUNDS RAISED READ AS UNDER:- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HO LDING THAT THE ASSESSING OFFICER IS RIGHT IN MAKING THE ASSES SMENT EVEN THOUGH NO NOTICE U/S 143(2) WAS ISSUED AND SERVED U PON THE APPELLANT IN TIME AS THIS IS THE CASE OF REGULAR AS SESSMENT. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HO LDING THAT PROVISIONS OF SECTION 292-BB APPLIES TO THE CASE OF THE APPELLANT AND THAT IT CAN BE PRESUMED THAT NOTICE U/S 143(2) WAS SERVED IN TIME EVEN THOUGH, NO SUCH NOTICE U/S 143(2) WAS ISS UED IN TIME. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONSIDERING THE SAID PROVISIONS OF SECTION 282-BB W HICH WERE INSERTED BY THE FINANCE ACT, 2008 WHICH HAVE NO AP PLICATION FOR THE ASSESSMENT YEAR 2005-06. 12. IN THIS CASE THE ASSESSING OFFICER NOTED THAT NOTICE U/S 142(1) FOR ASSESSMENT YEAR 2005-06 WAS ISSUED ON 10.11.20 06. HOWEVER, NO RETURN OF INCOME WAS FILED. LATER ON A SHOW CAUSE NO TICE U/S 143(2)/142(1) WAS ISSUED ON 28.11.2006 FIXING THE C ASE FOR 7.12.2006. HOWEVER, ON 1.12.2006 THE ASSESSEE HIMSELF REQUESTED THAT THE CASE 12 MAY BE TAKEN UP ON THAT DAY. HE WAS ASKED TO FILE H IS RETURN OF INCOME, HIS STATEMENT WAS RECORDED ON OATH ON 1.12. 2006. HE PROMISED TO FILE HIS RETURN UPTO 7.12.2006. HOWEVER, NO RETURN OF INCOME WAS FILED. FURTHER A REPLY IN THIS REGARD WA S GIVEN. ASSESSING OFFICER OBSERVED THAT CONDUCT OF THE ASSESSEE IN N OT FILING THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DESPITE NOTICES AND HIS OWN PROMISE-FIRST IN HIS STATEMENT RECORDED ON 1.12. 2006 AND HIS REPLY DATED 6.12.2006 SHOWS THAT HE IS NOT INTERESTED IN FILING THE RETURN OF INCOME WHICH WAS HIS STATUTORY OBLIGATION. THEREFO RE, THERE IS NO ALTERNATIVE BUT TO FRAME ASSESSMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ASSESSING OFFICER CONCLUDED AS UNDE R:- SIMILARLY THERE ARE OTHER BANK ACCOUNTS IN WHICH T OTAL OF CASH DEPOSITS IS AS UNDER:- NAME OF THE CONCERNS ACCOUNT NO. TOTAL CASH DE POSIT 1. M/S HARSH ENTERPRISES 217232004033 40122000/- . 2. M/S HARSH ENTERPRISES 100150050800187 28062640 /- HENCE, TOTAL CASH DEPOSITS IN THESE BANK ACCOUNTS A RE ` 122888640/-. FOR THESE NO EXPLANATION WHATSOEVER HAS BEEN FILED. THE ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNT NOR ANY EXPLANATI ON ON THESE CASH DEPOSITS IN THE BANK ACCOUNT HAS BEEN FILED. IN THE EARLIER YEAR ADDITION ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNTS HA S BEEN MADE. KEEPING THIS IN VIEW, AN ADDITION OF ` 1,00,000/- ON ESTIMATE BASIS ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK AC COUNTS IS MADE. 13. AGAINST THIS ORDER THE ASSESSEE APPEALED BEFO RE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 14. ONE CONTENTION RAISED IN THIS REGARD WAS T HAT NO NOTICE U/S 143(2) HAS BEEN ISSUED WITHIN THE STATUTORY TIME LI MIT. IN THIS REGARD, 13 ASSESSEE SUBMITTED THAT NO NOTICE U/S 143(2) WAS I SSUED TO HIM, THOUGH HE HAS FILED RETURN OF INCOME ON 1.8.2005 WI TH THE ITO, WARD 25(2), NEW DELHI WHO HAD JURISDICTION OVER HIS CASE A T THAT TIME. NOTICE U/S 143(2), THEREFORE COULD HAVE BEEN ISSUED AND SERVED DURING THE END OF THE MONTH IN WHICH RETURN OF INCOME WAS FILED I.E. 31.8.2006. AS NOTICE U/S 143(2) WAS NOT ISSUED BY THAT TIME, THE ASSESSMENT ORDER PASSED U/S 143(3) IS VOID AND BAD IN LAW. THOUGH ASSESSEE HAS CLAIMED THAT IT HAS FILED RETURN OF INC OME, BUT THE ASSESSING OFFICER IN THE ORDER HAS MENTIONED THAT N O RETURN WAS FILED. 15. UPON THE ASSESSEES APPEAL, LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND OBTAINED THE RE MAND REPORT BY THE ASSESSING OFFICER ALSO. IN THE REMAND REPORT THE ASSESSING OFFICER HAS MENTIONED THAT NO RETURN WAS FILED IN HIS OFFICE . AT THE SAME TIME HE HAS ALSO REFERRED THE REPLY OF THE ITO, WARD25(2 ) THAT AS PER COMPUTER RETURN NOT FILED IN WARD 25(2). BUT HE HA S NOT DOUBTED THE CLAIM OF THE ASSESSEE OF HAVING FILED THE RETURN WIT H ITO WARD 25(2) WHEN THE COPY OF RETURN HAS BEEN FILED TO HIM ON TH E LAST WORKING DAY OF THE YEAR 2006 AS PER WHICH THE INCOME OF THE ASS ESSEE IS ` 2,27,380/- AND ACTUALLY THE ASSESSING OFFICER HIMS ELF ADOPTED THIS INCOME IN THE COMPUTATION OF INCOME AS A STARTING POI NT. AS THE JURISDICTION AT THE TIME WHEN RETURN WAS TO BE FILED AS PER PROVISIONS OF SECTION 139 OF THE ACT WAS WITH ITO WARD 25(2), THE REFORE, ASSESSEE HAS FILED RETURN WITH THAT ITO. IT IS UPTO THE ASSESSING OFFICER TO ENSURE THAT WHEN CASE IS CENTRALIZED OR DECENTRALIZ ED, ALL THE RETURNS ARE TRANSFERRED. NOTHING CAN BE POSSIBLY DONE BY T HE ASSESSEE IN THIS REGARD. AS REGARDS COMMUNICATION OF ITO WARD 25(2) T HAT AS PER COMPUTER RETURN NOT FILED IN WARD 25(2) IT DOES NOT NECESSARILY PROVE THAT RETURN HAS BEEN NOT FILED WITH ITO WARD 25(2). IT ONLY SAYS THAT IN 14 THE COMPUTER THIS RETURN WAS NOT FILED. THEREFORE, IT CANNOT BE ACCEPTED THAT RETURN WAS NOT FILED. I HAVE GONE THR OUGH THE COPY OF RETURN WHICH IS CLEARLY EVIDENCING THE FACT OF RETU RN HAVING FILED ON 1.8.2005 WITH ITO WARD 25(2). THUS, ASSESSING OFFIC ER SHOULD HAVE ISSUED NOTICE U/S 143(2) WITHIN STIPULATED TIME WHIC H ADMITTEDLY HAS NOT BEEN DONE. 15.1 HOWEVER, LD. COMMISSIONER OF INCOME TAX (APPEALS) PROCEEDED TO HOLD THAT THE PROVISION OF SECTION 292BB ARE CLE ARLY APPLICABLE TO THE FACTS OF THE PRESENT CASE AND, THEREFORE, EVEN THO UGH THE NOTICE U/S 143(2) HAS NOT BEEN ISSUED/SERVED IN TIME, SINCE THE ASSESSEE HAS NOT RAISED SUCH OBJECTION BEFORE COMPLETION OF SUCH ASSES SMENT AND HAS APPEARED IN THE ASSESSMENT PROCEEDING, THE ASSESSMEN T CANNOT BE HELD VOID ON THIS GROUND. 16. AGAINST THE ABOVE ORDER LD. COUNSEL OF THE AS SESSEE REITERATED THAT ASSESSEES DUE DATE OF FILING THE RETURN FOR A .Y. 2005-06 WAS 31.7.2005. THE RETURN WAS ACTUALLY FILED ON 1.8.2 005. NOTICE U/S 143(2) COULD BE ISSUED UPTO 31.8.2006. IN THIS BACK GROUND LD. COUNSEL OF THE ASSESSEE CLAIMED THAT ASSESSMENT WAS BAD IN L AW. 17. WE HAVE CAREFULLY CONSIDERED THE ISSUE. WE FIN D THAT THRE IS APPARENT ANOMALY IN THE FINDINGS OF THE ASSESSING OF FICER AND THE LD. COMMISSIONER OF INCOME TAX (APPEALS). WHILE THE ASS ESSING OFFICER HAS GIVEN A CATEGORICAL FIDING THAT NO RETURN WAS F ILED BY THE ASSESSEE. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ACCEPTE D THAT RETURN WAS DULY FILED. SECTION 292BB RELIED UPON BY THE L D. COMMISSIONER OF INCOME TAX (APPEALS) IS ALSO APPLICABLE FROM 1.4.20 08. 18. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS IN THIS REGARD. WE FIND THAT NECESSARY MATERIAL ARE NOT AVAILABLE ON RECORD. HENCE, 15 BOTH THE COUNSEL FAIRLY AGREED THAT THE ISSUE CAN B E REMITTED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAM E AFRESH. ACCORDINGLY, IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO TH E FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. 19. SINCE THE ISSUE GOES TO THE ROOT OF THE MATTER, THE OTHER ISSUES RAISED IN THESE APPEALS OF THE ASSESSEE AND THE R EVENUE AGAINST THE LD. COMMISSIONER OF INCOME TAX (APPEALS)S ORDER IN T HIS REGARD ALSO STAND REMITTED TO THE FILES OF THE ASSESSING OFFICER . 20. THE CROSS OBJECTION NO. 336 IS ONLY SUPPORTIVE OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). SINCE, W E ARE REMITTING THE ENTIRE ISSUE TO THE FILES OF THE ASSESSING OFFI CER, THE CROSS OBJECTION HAS BECOME INFRUCTUOUS AND DISMISSED AS SUCH. 21. IN THE RESULT, ALL THE APPEALS BY THE REVENUE A ND ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES AND ALL THE CROSS OBJECTIONS STAND DISMISSED BEING INFURCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 20/05/2011. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 20/05/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5.DR, I TAT TRUE COPY BY ORDER, DEPUTY REGISTRAR,ITAT, DELHI BENCHES