M/s. Comfort Net Traders (I) Pvt. Ltd., New Delhi V. ACIT, New Delhi

CO 374/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2919 (ITAT-DELHI)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 21-12-2015
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH CNEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA. NO.5574/DEL/2015 ASSESSMENT YEAR: 2009-10 ACIT, CENTRAL CIRCLE-17, VS COMFORT NET TRADERS (I) P. LTD. NEW DELHI. SHOP NO.26, NATHU SINGHMARKET, MASOOD PUR, VASANT KUNJ NEW DELHI PAN AAACC3286D C.O. NO.374/DEL/2015 ITA. NO.5574/DEL/2015 ASSESSMENT YEAR: 2009-10 COMFORT NET TRADERS (I) P. LTD. VS ACIT, CIRCLE 4(1), SHOP NO.26, NATHU SINGH MARKET, NEW DELHI. MASOOD PUR, VASANT KUNJ NEW DELHI PAN AAACC3286D (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SOMI AGGARWAL, ADVOCATE DR. RAKESH GUPTA, ADVOCATE SHRI SANKALP NAIK, ADVOCATE DEPARTMENT BY: MS. SUSHMA SINGH, CIT DR DATE OF HEARING: 14/08/2019 DATE OF ORDER : 03/09/2019 2 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 24.07.2015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-27(CIT(A)), NEW DELHI IN APPEAL NO.52/13-14 FOR THE ASSTT. YEAR 2009-10, WHEREAS REVENUE PREFERRED ITA NO.5574/DEL/2015, ASSESSEE PREFERRED CROSSOBJECTION NO.374/DEL/2015. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A COMPANY IS ENGAGED IN THE TRADING OF FURNITURE, OFFICE EQUIPMENT AND VARIOUS OTHER ALLIED ITEMS AND APPLICATIONS. PURSUANT TO THE SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961 (THE ACT) AT THE BUSINESS/RESIDENTIAL PREMISES OF THE ASSESSEE ON 19.10.2010, NOTICE U/S 153A WAS ISSUED ON 19.9.2011. NOTICE U/S 143(2) WAS ISSUED ON 29.8.2012. SUBSEQUENTLY, ORDER U/S 153A READ WITH SECTION 143(3) OF THE ACT WAS PASSED ASSESSING THE INCOME OF THE ASSESSEE AT RS.1,84,25,408/- BY MAKING CERTAIN ADDITIONS. 3. ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A) AND CONTENDED THAT THE ADDITIONS AND DISALLOWANCES WERE MADE WITHOUT THERE BEING ANY MATERIAL OR EVIDENCE FOUND AS A RESULT OF SEARCH AND THE IMPUGNED ADDITIONS WERE MADE ON THE BASIS OF RETURN OF INCOME ALREADY FILED BY THE ASSESSEE COMPANY. THE ADDITIONS MADE IN A CONCLUDED ASSESSMENT WITHOUT FINDING ANY INCRIMINATING MATERIAL IN THE SEARCH ARE BAD UNDER LAW. 4. LEARNED CIT(A) TURNED DOWN THE CONTENTION OF THE ASSESSEE WHILE REFERRING TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA. HOWEVER, IN SO FAR AS THE MERITS ARE CONCERNED, LD. CIT(A) 3 GRANTED RELIEF TO THE ASSESSEE BY ORDERING THE DELETION OF THE ADDITIONS MADE ON ACCOUNT OF TOUR AND TRAVEL EXPENSES, LOW GROSS PROFIT RATIO AND UNEXPLAINED PURCHASES. 5. CHALLENGING THE DELETION OF THE ADDITIONS, REVENUE PREFERRED ITA NO.5574/DEL/2015 AND AGGRIEVED BY THE FINDING OF THE LEARNED CIT(A) THAT THE ADDITIONS MADE IN THE ASSESSMENT COMPLETED U/S 153A READ WITH SECTION 143(3) OF THE ACT WAS WITHIN THE JURISDICTION OF THE AO, THE ASSESSEE FILED CROSS OBJECTION NO.374/DEL/2015. 6. IN THIS CASE, ADMITTEDLY THE RETURN OF INCOME WAS FILED ON 19.9.2009 AND THE DUE DATE FOR ISSUANCE OF NOTICE U/S 143(2) WAS 30.9.2010. IT IS AN ADMITTED FACT THAT NO NOTICE U/S 143(2) WAS ISSUED WITHIN THIS DATE AND, THEREFORE, THE ASSESSMENT HAD BECOME CONCLUDED ONE. SEARCH WAS ON 19.10.2010 BEYOND THE DUE DATE OF ISSUANCE OF NOTICE U/S 143(2) AND, THEREFORE, VIDE THE LAW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA (2016) 380 ITR 573(DEL) VIDE PARA 37(IV), THE ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL IN THE CASE OF A CONCLUDED ASSESSMENT. INVIEW OF THIS POSITION OF SETTLED LAW, WE ARE OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF ANY SEIZED MATERIAL, IT IS NOT OPEN FOR THE AO TO ASSUME JURISDICTION TO MAKE ANY ADDITION BASING ON THE MATERIAL WHICH WAS ALREADY AVAILABLE BEFORE THE CONCLUSION OF THE ASSESSMENT. HENCE, WE FIND FORCE IN THE ARGUMENT OF THE LD. AR AND ALLOW THE CROSS OBJECTION. CONSEQUENTLY, THE ASSESSMENT IS LIABLE TO BE QUASHED AND APPEAL OF THE REVENUE IN ITA NO.5574/DEL/2015 STANDS DISMISSED. 4 7. IN THE RESULT, WHEREAS APPEAL OF THE REVENUE IS DISMISSED, THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN OPEN COURT ON THIS THE SEPTEMBER, 2019. SD/- SD/- ( PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD SEPTEMBER, 2019 VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED 20 .8.2019 DRAFT PLACED BEFORE AUTHOR 21.8.2019 APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. DATE OF UPLOADING ON THE WEBSITE