Shri Mukesh Goel, Haryana V. ACIT, New Delhi

CO 444/DEL/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9390 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 06-02-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 06-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GUNJAN PARSHAD
• Assessee Lawyers: B L SAINI
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 153A; 147; 131; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .5122/DEL/2012 5122/DEL/2012 5122/DEL/2012 5122/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2004 2004 2004 2004- -- -05 0505 05 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -09, 09, 09, 09, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI MUKESH GOEL, SHRI MUKESH GOEL, SHRI MUKESH GOEL, SHRI MUKESH GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, HARYANA. HARYANA. HARYANA. HARYANA. PAN : AGTPG5082B. PAN : AGTPG5082B. PAN : AGTPG5082B. PAN : AGTPG5082B. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.444/DEL/2012 CROSS OBJECTION NO.444/DEL/2012 CROSS OBJECTION NO.444/DEL/2012 CROSS OBJECTION NO.444/DEL/2012 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2004 2004 2004 2004- -- -05 0505 05 SHRI SHRI SHRI SHRI MUKESH GOEL, MUKESH GOEL, MUKESH GOEL, MUKESH GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, NAI BASTI, BAHADURGARH, HARYANA. HARYANA. HARYANA. HARYANA. PAN : AGTPG5082B. PAN : AGTPG5082B. PAN : AGTPG5082B. PAN : AGTPG5082B. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -09, 09, 09, 09, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI GUNJAN PARSHAD, CIT-DR. ASSESSEE BY : SHRI B.L. SAINI, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THE APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF LEARNED CIT(A)-XXXII, DELHI DATED 26 TH JULY, 2012 FOR THE AY 2004-05. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER:- 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS ON THE CASE IN HOLDING THA T THE ITA-5122/D/2012 & C.O.444//D/2012 2 PROCEEDINGS U/S 153A CANNOT BE SAID AS VALIDLY INITIATE D AND THEREFORE HELD AS BAD IN LAW. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN IGNORING THE FACT THAT THE ASSESSEE HIMSELF ADMITTED BEFORE THE DDIT (INVESTIGATION) AND THE ASSESSING OFFICER IN HIS STATEMENT RECORDED U/S 131 OF THE INCOME TAX ACT, 1961 THAT VA RIOUS CONCERNS SEARCHED U/S 132 OF THE ACT WERE DUMMY CONCERNS CONTROLLED BY HIM IN BENAMI NAMES FOR THE PURPOSE OF GIVING ACCOMMODATION ENTRIES AND ACCORDING LY INCOME OF THESE CONCERNS WAS ASSESSABLE IN THE ASSESSEES HAND. 3. (A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING TH E COURSE OF THE HEARING OF THE APPEAL. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 153A FOR THE YEAR UNDER CO NSIDERATION I.E. AY 2004-05. BEFORE THE LEARNED CIT(A), IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT SINCE NO SEARCH HAD TAKEN PLACE AT T HE ASSESSEES PREMISES, THE INITIATION OF PROCEEDINGS UNDER SECTION 153A IN THE CASE OF THE ASSESSEE IS NOT VALID. IN VIEW OF THE ABOVE CLA IM OF THE ASSESSEE, THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER. THE ASSESSING OFFICER, VIDE LETTER DATED 29. 5.2012, INTIMATED THAT NO WARRANT UNDER SECTION 132 HAS BEEN DRAWN IN THE NAME OF SHRI MUKESH GOEL, 2334/9, MAIN TOTA RAM BAZAR, TRI NAGAR, DELHI 110036. THUS, IT WAS ADMITTED BY THE REVENUE BEFORE THE CIT(A ) THAT NO SEARCH WARRANT WAS ISSUED IN THE NAME OF THE ASSESSEE. IN VIEW O F THE ABOVE, IT WAS HELD BY THE CIT(A) THAT PROCEEDINGS UNDER SECT ION 153A CANNOT BE SAID TO BE VALIDLY INITIATED AND, THEREFORE, HE H ELD THE PROCEEDINGS INITIATED UNDER SECTION 153A TO BE BAD IN LAW. HOW EVER, HE ALSO MADE THE FOLLOWING OBSERVATION:- ITA-5122/D/2012 & C.O.444//D/2012 3 2.13 THE APPEAL IS DECIDED ACCORDINGLY AND THE ORDER PASSED BY A.O. U/S 153A READ WITH SECTION 144 IS ANNULLED. THE A.O. HOWEVER IS DIRECTED TO EXAMINE T HE FACTS AND MAY TAKE RECOURSE TO THE PROVISIONS OF SECTION 153C OR SECTION 147 OF THE ACT, IF THE FACTS OF THE CASE SO DEMAND. 4. THE REVENUE, AGGRIEVED WITH THE ORDER OF CIT(A), IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING BEFORE US, IT WAS POINTED O UT BY THE LEARNED COUNSEL THAT IDENTICAL MATTER CAME UP BEFORE THE ITAT FOR AY 1999-2000 TO 2003-04 VIDE ITA NO.1036 TO 1040/DEL/2 010 & OTHERS. THAT THE ITAT, VIDE ORDER DATED 20 TH MAY, 2011, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE FOLLOWING D IRECTION:- 7.5 WE FIND THAT THE CONTENTIONS OF THE LD. DEPARTM ENTAL REPRESENTATIVE HAS COGENCY. HOWEVER, ALL THE MATERI AL FACTS IN THIS REGARD ARE NOT AVAILABLE ON RECORD. H ENCE, BOTH THE COUNSEL FAIRLY AGREED THAT THE MATTER MAY B E RESTORED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDE R THE ISSUE AFRESH. WE FURTHER FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THESE YEARS HAD ANNULLED THE ASSESSMENT ON THE GROUND OF JURISDICTION AND HAS NOT ADJUDICATED THE ISSUE ON MERITS. HENCE, IN THE INTER EST OF JUSTICE, WE REMIT THE ISSUE IN THESE APPEALS TO THE FILE S OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH AND DECIDE AS PER LAW. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 6. THAT AFTER THE SET ASIDE, THE ASSESSING OFFICER IN TH E ORDER PASSED UNDER SECTION 254/143(3)/153A DATED 31 ST DECEMBER, 2012 DROPPED THE PROCEEDINGS INITIATED UNDER SECTION 153A. THUS, WHEN THE DEPARTMENT ITSELF HAS ACCEPTED BEFORE THE CIT(A) AS WE LL AS BY THE ASSESSING OFFICER HIMSELF IN THE EARLIER YEARS THAT NO SEA RCH WARRANT ITA-5122/D/2012 & C.O.444//D/2012 4 HAS BEEN DRAWN IN THE NAME OF THE ASSESSEE, THE PROCEED INGS UNDER SECTION 153A WERE RIGHTLY HELD TO BE INVALID BY THE LEARNED CIT(A). 7. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE ASSESSING OFFICER. 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IT IS A SET TLED LAW THAT PROCEEDINGS UNDER SECTION 153A CAN BE INITIATED IN T HE CASE OF THE ASSESSEE IN WHOSE CASE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS OR REQUI SITION UNDER SECTION 132A AFTER 31 ST DAY OF MAY, 2003. NOW, IN THIS CASE, THE ASSESSING OFFICER, IN THE REMAND REPORT BEFORE THE CIT( A), HAS ADMITTED THAT NO SEARCH WARRANT HAS BEEN DRAWN IN THE NAME OF THE ASSESSEE. AFTER THE SET ASIDE OF THE EARLIER YEARS MATTER, THE ASSESSING OFFICER AGAIN CALLED FOR THE REPORT FROM THE INVESTIGATION W ING AND AT PAGE 3 OF THE ASSESSMENT ORDER FOR AY 1999-2000 HAS RECORDED THE F OLLOWING FINDING:- AFTER DISCUSSION WITH THE A.R. OF THE ASSESSEE AND CATEGORICAL ADMISSION BY THE ADDL. DIT(INV) UNIT-1, N EW DELHI THAT NO SUCH WARRANT HAS BEEN DRAWN IN THE N AME OF SH. MUKESH GOEL 2334/9, MAIN TOTA RAM BAZAR, TRI NAG AR, DELHI-110036 THE PROCEEDING INITIATED U/S 153A OF T HE INCOME-TAX ACT, 1961 ARE HEREBY DROPPED. 9. THUS, THE INVESTIGATION WING OF THE INCOME-TAX DEP ARTMENT HAS ALSO INFORMED THE ASSESSING OFFICER THAT NO SEARCH WARRAN T WAS DRAWN IN THE NAME OF THE SHRI MUKESH GOEL I.E., THE ASSESSEE. LEARNED CIT(A), WHILE HOLDING THAT PROCEEDINGS INITIATED UND ER SECTION 153A ARE INVALID, HAS ALSO DIRECTED THE ASSESSING OFFICER TO EXAMI NE THE FACTS OF THE CASE AND TAKE RECOURSE TO THE PROVISIONS OF SECTION 153C OR SECTION ITA-5122/D/2012 & C.O.444//D/2012 5 147 OF THE ACT IF THE FACTS OF THE CASE SO DEMAND. IN VIEW OF THE TOTALITY OF ABOVE FACTS AND THE LEGAL POSITION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). THE SAME IS SUST AINED AND THE REVENUES APPEAL IS DISMISSED. 10. THE CROSS-OBJECTION OF THE ASSESSEE IS ONLY IN SUPPOR T OF THE ORDER OF LEARNED CIT(A). AS WE HAVE ALREADY UPHELD THE ORDER OF LEARNED CIT(A), THE CROSS-OBJECTION OF THE ASSESSEE HAS BE COME INFRUCTUOUS AND IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS-OBJECTION OF THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2014. SD/- SD/- ( (( (RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 14.02.2014 VK. COPY FORWARDED TO: - 1. ASSESSEE : SHRI MUKESH GOEL, SHRI MUKESH GOEL, SHRI MUKESH GOEL, SHRI MUKESH GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, S/O SHRI RAJ KUMAR GOEL, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, HOUSE NO.25, GALI NO.3, NAI BASTI, BAHADURGARH, HARYANA. NAI BASTI, BAHADURGARH, HARYANA. NAI BASTI, BAHADURGARH, HARYANA. NAI BASTI, BAHADURGARH, HARYANA. 2. REVENUE : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -09, JHANDEWALAN, NEW DELHI. 09, JHANDEWALAN, NEW DELHI. 09, JHANDEWALAN, NEW DELHI. 09, JHANDEWALAN, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR