Bijay Shankar Gupta - HUF, SRIBIJAYNAGAR V. ACIT, SRIGANGANAGAR

CO 3/JODH/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7482 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 01-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N R MERTIA
• Keywords: Block assessment
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER IT(SS)A NO.11/JODH/2010 BLOCK ASSESSMENT YEAR: 1992-93 TO 2001-02 UPTO 10.05.2001 (01.04.1991 TO 10.05.2001) ASST. COMMISSIONER OF INCOME TAX, VS. SHRI BIJAY SH ANKAR GUPTA-HUF, CIRCLE, SRIGANGANAGAR C/O. M/S. GOKUL CHAND KESR I CHAND, SRI BIJAYANAGAR. (PAN: AABHV 3167 J). C.O. NO.03/JODH/2011 (IN IT(SS)A NO.11/JODH/2010) BLOCK ASSESSMENT YEAR: 1992-93 TO 2001-02 UPTO 10.05.2001 (01.04.1991 TO 10.05.2001) SHRI BIJAY SHANKAR GUPTA-HUF, VS. ASST. COMMISSIONE R OF INCOME TAX, C/O. M/S. GOKUL CHAND KESRI CHAND, CIRCLE, SRIGANG ANAGAR SRI BIJAYANAGAR. (PAN: AABHV 3167 J). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI SUNIL MATHUR, C.I.T. - D.R. ASSESSEE BY : SHRI N.R. MERTIA, A.R. DATE OF HEARING : 09.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 11.07.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 2 APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE AS SESSEE HAVE BEEN FILED AGAINST THE ORDER DATED 30.08.2010 PASSED BY THE LD . CIT(A), BIKANER FOR THE BLOCK ASSESSMENT YEAR 1992-93 TO 2001-02 UPTO 10.05.2001 (01.04.1991 TO 10.05.2001). 2. THE ONLY GROUND RAISED IN APPEAL BY THE REVENUE READ AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN :- I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E LD. CIT(A) HAS ERRED IN HOLDING THAT NOTICE U/S 143(2) NOT HAV ING BEEN ISSUED AND SERVED WITHIN THE PRESCRIBED TIME LIMIT, THE ASSESS MENT FRAMED U/S 158BD CANNOT BE SUSTAINED. RESULTING, ADDITION OF RS.39,08,180/- ON ACCOUNT OF UNDISCLOSED INCOME FROM THE BLOCK PERIOD 01.04.1991 TO 10.05.2001 STANDS DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN PURSUANC E OF DIRECTION OF THE I.T.A.T, JODHPUR BENCH IN IT(SS)A NOS.26 & 27/JU/2005 VIDE O RDER DATED 22.09.2008 WHEREIN THE MATER WAS SENT BACK TO THE FILE OF CIT( A). THE CIT(A) DECIDED THE LEGAL ISSUE RAISED BEFORE THE I.T.A.T. AS ADDITIONA L GROUND IN RESPECT OF JURISDICTION ACQUIRED BY THE ASSESSING OFFICER (A.O.) UNDER SECT ION 158BD OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) ACT. THE ASSESSE E CHALLENGED THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD OF THE ACT ON THE G ROUND THAT THE A.O. HAD NOT RECORDED SATISFACTION ABOUT THE EXISTENCE OF UNDISC LOSED INCOME BEFORE PROCEEDING UNDER SECTION 158BD OF THE ACT. IN ADDITION TO THA T, WITHOUT PREJUDICE TO THE ABOVE ARGUMENT, THE ASSESSEE HAS ALSO ARGUED THAT THE NOT ICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BEYOND THE PERIOD MENTIONED IN PROVI SO TO SECTION 143(2) OF THE IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 3 ACT. THE CIT(A) DECIDED THE FIRST CONTENTION AGAIN ST THE ASSESSEE AS UNDER :- (PAGE NOS.5 & 6 OF CIT(A) I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SU BMISSIONS MADE. IN ORDER TO VERIFY THE CONTENTIONS MADE BY T HE A/R FOR THE APPELLANT, THE CASE RECORD OF THE APPELLANT WERE CA LLED FOR AND EXAMINED. ON EXAMINATION OF THE SAME IT IS SEEN TH AT THE DCIT, CENTRAL CIRCLE-30, CENTRAL RNGE-5, MUMBAI VIDE HIS LETTER DATED 28.04.2003 INTIMATED THAT CERTAIN NOTING APPEARING IN THE SEIZED MATERIAL OF SHRI ASHOK JAIN PERTAINED TO SHRI VIJAY SHANKAR GUPTA (HUF) AND THAT HE WAS SATISFIED BOUT THE INITIATION OF PROCEEDINGS U/S 158BD IN THE CASE OF SHRI VIJAY SHANKAR GUPTA (HUF) . RELEVANT EXTRACTS OF THE SEIZED MATERIAL WERE ENCLOSED WITH THE SAID LETTER. ON THE BASIS OF SUCH INTIMATION THE ACIT, SRIGANGANAGA R RECORDED HIS SATISFACTION ON 20.06.2003. THEREAFTER, ON THE SAM E DATE NOTICE U/S 158BD WAS ISSUED TO THE APPELLANT. THUS, FROM THE PERUSAL OF THE RECORDS IT IS SEEN THAT PROPER SATISFACTION WAS REC ORDED BY THE AO OF THE APPELLANT BEFORE INITIATING THE PROCEEDINGS U/S 158BD. THE SUBMISSIONS OF THE A/R THAT PROPER SATISFACTION WAS NOT RECORDED BEFORE INITIATING PROCEEDINGS U/S 158BD, IS FOUND T O BE FACTUALLY INCORRECT IN AS MUCH AS THERE IS PROPER RECORDING O F SATISFACTION BEFORE COMMENCING THE PROCEEDINGS U/S 158BD. THE S UBMISSIONS MADE BY THE A/R THUS HAVE TO BE REJECTED. THE PROP ER SATISFACTION HAVING BEEN RECORDED, CASE LAWS RELIED UPON BY THE A/R DO NOT ADVANCE THE CASE OF THE APPELLANT. THIS ARGUMENT, THEREFORE, FAILS. 4. IN RESPECT OF SECOND ARGUMENT, THE CIT(A) PERUSE D THE RECORDS AND THE FINDING THAT THE RETURN WAS FILED ON 28.07.2003 AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS TO ISSUE BY 30.07.2003. THE CIT(A) ON PERUSAL OF ORDER SHEET DID NOT FIND THAT NOTICE UNDER SECTION 143(2) OF THE ACT WA S ISSUED ON 26.08.2004. IN RESPECT OF CLARIFICATION OF NOTICES, THE CIT(A) ASK ED THE A.O. TO VERIFY THE DATES OF ISSUANCE OF NOTICES. THE A.O. VIDE LETTER DATED 22 .07.2010 SUBMITTED THE RELEVANT IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 4 DATES WHICH HAS BEEN REPRODUCED BY THE CIT(A) IN HI S ORDER AS UNDER :- (PAGE NO.6 CIT(A)) S.NO. DATE NOTICE U/S 143(2)/142(1) REMARKS 1. 20.06.2006 158BD NOTICE SERVED BY REGD. AD. AD AVAILABLE ON RECORD. 2. 28.07.2003 - RETURN FILED IN RESPONSE TO T HE ABOVE NOTICE 3. 26.08.2004 143(2) SERVICE NOT AVAILABLE ON RECOR D 4. 13.12.2004 142(1) SERVED BY REGD. AD. ACKNOWLEDGEMENT AVAILABLE ON RECORD 5. 10.03.2005 142(1) SERVED BY REGD. AD. ACKNOWLEDGEMENT NOT AVAILABLE ON RECORD. 6. 16.06.2005 143(2) & 142(1) SERVED BY REGD. AD. ACKNOWLEDGEMENT NOT AVAILABLE ON RECORDD. 7. 22.06.2005 143(2) & 142(1) SERVED UPON THE ASSES SEE BY THE NOTICE SERVER OF THIS OFFICE. 5. ON EXAMINATION OF RECORDS AND AFTER PROVIDING OP PORTUNITY OF HEARING THE CIT(A) FOUND THAT NOTICE UNDER SECTION 143(2) OF TH E ACT WAS NOT ISSUED TO THE ASSESSEE. THE CIT(A) FOLLOWED THE JUDGMENT OF APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON, 35 DTR 1 (SC) AND HELD THAT TH E SAID JUDGEMENT OF THE APEX COURT IS APPLICABLE TO THE ASSESSEES CASE. THE OM ISSION ON THE PART OF THE A.O. TO ISSUE NOTICE UNDER SECTION 143(2) WITHIN THE TIME P RESCRIBED CANNOT BE SAID TO BE A PROCEDURE IRREGULARITY WHICH CAN BE CURABLE. THE C IT(A) HELD THAT NOTICE UNDER SECTION 143(2) HAVE NOT BEEN ISSUED AND SERVED WITH IN THE PRESCRIBED TIME LIMIT. IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 5 THEREFORE, THE ASSESSMENT MADE UNDER SECTION 158BD CANNOT BE SUSTAINED. IN RESPECT OF MERIT OF THE CASE, THE CIT(A) FOLLOWED H IS PREDECESSORS EARLIER ORDER AND DID NOT FIND REASON TO DISTURB THE FINDING ALRE ADY GIVEN BY HIS PREDECESSOR. 6. THE REVENUE IS IN APPEAL RAISING GROUND IN QUASH ING THE ASSESSMENT ORDER PASSED BY THE A.O. UNDER SECTION 158BD OF THE ACT A ND THE ASSESSEE IS IN CROSS OBJECTION RAISING THE GROUND THAT THE CIT(A) DID NO T GIVE INDEPENDENT FINDING ON MERIT OF THE CASE. 7. GROUND NOS. 1 TO 3 OF THE CROSS OBJECTION ARE IN SUPPORT OF THE ORDER OF THE CIT(A). GROUND NO.4 IS IN RESPECT OF NON-DECIDING THE ISSUE ON MERIT BY THE CIT(A) AS STATED ABOVE. 8. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. WE NOTICE THAT PER RECORD, THERE IS NO PROOF OF SER VICE AVAILABLE ON RECORD IN SUPPORT OF THE FACT THAT NOTICE UNDER SECTION 143(2 ) OF THE ACT WAS ISSUED ON 26.08.2004. ALTHOUGH THE CIT(A) RECORDED THE FACT THAT THE CONTENTION OF THE ASSESSEE THAT THIS NOTICE WAS ISSUED ON 28.04.2005, THE CIT(A) PROVIDED OPPORTUNITY OF HEARING TO THE A.O. THE A.O. FURNIS HED THE DETAILS OF ISSUANCE OF NOTICES WHICH IS REPRODUCED AS ABOVE FROM THE ORDER OF THE CIT(A) AT PAGE NO.6. THE CIT(A) FOUND THAT EVEN BEFORE HIM THE REVENUE H AS FAILED TO FURNISH THE DETAILS IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 6 THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BY THE A.O. THUS, THE ADMITTED FACTS IN THIS CASE WAS THAT NOTICE UNDER S ECTION 143(2) OF THE ACT WAS NOT ISSUED. THEREFORE, WE FIND THAT THE ISSUE IS SQUAR ELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGEMENT OF THE APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (SUPRA). THE CIT(A) HAS ALSO FOLLOWED THE SAM E JUDGEMENT. IN THE LIGHT OF THE ABOVE FACTS, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE CIT(A). WE, THEREFORE, CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. 9. AS REGARDS THE GROUND OF ASSESSEES CROSS OBJECT ION REGARDING MERIT OF THE CASE, WE FIND THAT THE CIT(A) HAS DECIDED THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE AND WE ALSO CONFIRMED THE ORDER OF THE CIT(A) ON TH IS ISSUE. IN THE LIGHT OF THE FACTS, WE DO NOT FEEL IT NECESSARY TO GO INTO THE M ERIT OF THE CASE AND HENCE DO NOT EXPRESS ANY OPINION ON MERIT OF THE CASE AS THE LEG AL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE CONFIRMING THE ORDER OF THE CIT(A). HOWEVER, THE ASSESSEE IS AGGRIEVED IN THE CROSS OBJECTION REGARDING THE D IRECTION ISSUED BY THE CIT(A) AS PER THE DECISION OF HIS PREDECESSOR CIT(A) VIDE ORD ER DATED 30.09.2005. SINCE THE ORDER DATED 30.09.2005 WAS SET ASIDE BY THE TRIBUNA L TO THE FILE OF THE CIT(A) AND 158BD PROCEEDINGS HAVE BEEN QUASHED, THE CIT(A) SHO ULD NOT HAVE REFERRED TO THE ORDER OF CIT(A) DATED 30.09.2005 ON MERITS IN THE IMPUGNED ORDER BECAUSE THE ADDITIONS WOULD STAND DELETED ON QUASHING THE BLOCK ASSESSMENT PROCEEDINGS. IN THE RESULT, CROSS OBJECTION OF THE ASSESSEE TO THAT EXTENT IS ALLOWED. IT(SS)A NO.11/JODH/2010 & C.O. NO.03/JODH/2011 . 7 10. OTHER GROUNDS ARE IN SUPPORT OF THE ORDER OF CI T(A). AS A RESULT, C.O. OF THE ASSESSEE IS PARTLY ALLOWED. 11. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED AND CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLAT E TRIBUNAL, JODHPUR TRUE COPY