HASMUKH DIPCHAND GARDI,MUMBAI V. ACIT, CENTRAL CIRCLE 5(2), MUMBAI

SA 110/MUM/2024

AI Insights

The case involves Hasmukh Dipchand Gardi, a non-resident, who filed stay applications for the assessment years 2013-14 to 2020-21 against the backdrop of a search and seizure operation conducted on his residence. The assessments for these years were finalized based on the findings from the operation. The total addition made was Rs. 125,02,64,123, of which Rs. 8,89,91,751 was sustained by the CIT(A). The primary legal contention raised was the failure of the assessing officer to issue a draft assessment order before the final assessment, as required under section 144C(1). The tribunal considered the procedural lapses and the substantial assets already seized in deciding to grant the stay.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 33742 (ITAT-MUMBAI)
• Duration Of Justice: 8 day(s)
• Appeal Type: Others
• Pronouncement Date: 25-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-10-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 17-10-2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUSHKARAJ BHANGEPATIL
• Assessee Lawyers: NITESH JOSHI
• Keywords: Search and seizure; Application of stay
• Section: 143(3); 153A

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “E”, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND SHRI RAJ KUMAR CHAUHAN, JUDUCIAL MEMBER SA Nos. 110 to 117/Mum/2024 (Arising out of ITA Nos. 1303/Mum/2024, 1306/Mum/2024, 1309/Mum/2024, 1308/Mum/2024, 1305/Mum/2024, 1307/Mum/2024, 1304/Mum/2024 & 1302/Mum/2024 Assessment Year: 2013-14 to 2020-21 Hasmukh Dipchand Gardi 3, Usha Kiran, M.L. Dhanukmarh Marg, Peddar Road, Mumbai-400021. PAN: AANPG 4068 K Vs. ACIT, Central Circle 5(2), Mumbai (Appellant) (Respondent) Present for: Assessee by : Shri Nitesh Joshi Revenue by : Shri Pushkaraj Bhangepatil, Sr. DR Date of Hearing : 25.10.2024 Date of Pronouncement : 25.10.2024 O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: The assessee has filed stay application for A.Y. 2013-14 to 2020-21 vide SA No. 110/M/2024 to 117/M/2024 respectively. The assessee is seeking stay of recovery of aggregate outstanding demands of Rs. 5,29,33,373/- pertaining to A.Y. 2013-14 to 2020- 21. 2. Before us, the ld. Counsel submitted that assessee is a non- resident and assessment u/s 153A for A.Y. 2013-14 to 2019-20 and assessment u/s 143(3) for A.Y. 2020-21 were finalized in the cases of the assessee on the basis of search and seizure action conducted on 22.10.2019 at the residence of the assessee. He further submitted that total addition in the case of the assessee SA Nos.110 to 117/Mum/2024 2 was made to the amount of Rs. 125,02,64,123/- and in the appeal, ld. CIT(A) has sustained the addition only to the extent of Rs. 8,89,91,751/-. He also submitted that in the case of the assessee as per section 144C(1) it is mandatory for the assessing officer to issue a draft assessment order in the first instance when proposing variation to the income of an eligible assessee i.e. prejudicial to the tax payer. However, the AO has failed to follow the mandatory procedure for first issuing a draft assessment order before making the final assessment order for the relevant assessment years. 3. The ld. Counsel also submitted that department has already seized cash and jewellery to the present value of Rs. 4.99 crores against the total demand of Rs. 5.29 crores and these assets can be applied towards settlement of outstanding demand as per provisions of section 132B of the Act. 4. The ld. DR could not dispute the aforesaid fact that against the total outstanding demand of Rs. 5.3 crores there were significant value of total assets seized to the amount of Rs. 4.99 crores and there is not delay in hearing of appeal which is attributable to the assessee in any manner. 5. Heard both the sides and perused the material on record. Upon careful consideration of the facts discussed above, it is noticed that there is no delay in hearing attributable to the assessee in any manner in this case. Further, against the total outstanding demand of Rs. 5.30 crores a total present value of cash and jewellery seized to the amount of Rs. 4.99 crores available with the department and issue of applicability of section 144C(1) in the case of the assessee as referred above in this case is SA Nos.110 to 117/Mum/2024 3 required adjudication. In view of the above facts and circumstances, we consider it appropriate to grant stay of outstanding demand for a period of 180 days from the date of this order or till the disposal of the appeal whichever is earlier. It is made clear that if the assessee seeks adjournment for any frivolous reason, these stay granted shall stand vacated automatically. 6. In the result, the stay application vide SA Nos. 110/M/2024 to 117/M/2024 are allowed subject to the aforesaid terms. Order pronounced in the open court on 25.10.2024. Sd/- Sd/- (RAJ KUMAR CHAUHAN) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 25.10.2024 Biswajit, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent: 3. The CIT, 4. The DR //True Copy// [ By Order Assistant Registrar ITAT, Mumbai Benches, Mumbai "