DCIT CEN CIR 7(3), MUMBAI V. RADHIKA CHETAN MEHRA, MUMBAI

ITA 1061/MUM/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4106 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK JHA
• Assessee Lawyers: LATA PARULEKAR
• Keywords: Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SANJAY ARORA , A M AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 1061/MUM/2016 ( / ASSESSMENT YEAR: 2009 - 10 ) DY. CIT, CC - 7(3), ROOM NO. 655, 6 TH FLOOR, AAYA KAR BHAVAN, M. K. ROAD, MUMBAI - 20 / VS. RADHIKA CHETAN MEHRA 20, MOTI MAHAL, DINSHAW WACHA ROAD,CHURCHGATE, MUMBAI - 20 ./ ./ PAN/GIR NO. AIZPM 8435 A ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ASHOK JHA / RESPONDENT BY : MS. LATA PARULEKAR / DATE OF HEARING : 21.4.2016 / DATE OF PRONOUNCEMENT : 21 .4.2016 / O R D E R PER SANJAY AR ORA, A. M.: THIS IS AN A PPEAL BY THE REVENUE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 49 , MUMBAI (CIT(A) FOR SHORT) DATED 16.12.2015 , PARTLY ALLOWING THE A SSESSEES APPEAL CONTESTING HER ASSESSMENT U/S.1 5 3 A R/W S. 143 (3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10 VIDE ORDER DATED 27.3.2014 . 2. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 2.1 WE MAY AT THE OUTSET CLARIFY THAT THE REVENUES APPEAL IS MAINTAINA BLE U/S. 268A OF THE ACT EVEN AS ITS TAX EFFECT IS ADMITTEDLY BELOW RS.10 LACS, I.E., THE EXT A NT THRESHOLD MONETARY LIMIT SPECIFIED BY THE LATEST CIRCULAR (NO. 21/2015 DATED 10.12.2015) ISSUED BY THE BOARD THERE - UNDER. THIS IS AS, AS EXPLAINED BY THE LD. A UTHORIZED REPRESENTATIVE (AR) DURING H EARING, THAT THE INSTANT APPEAL ARISES FROM THE 2 ITA NO. 1061/MUM/2016 (A.Y. 2009 - 10) DY. CIT VS. RADHIKA CHETAN MEHRA COMMON IMPUGNED ORDER BY THE FIRST APPELLATE AUTHORITY FOR A.YS. 2009 - 10 AND 2010 - 11, THE COMBINED TAX - EFFECT OF WHICH (I.E., FOR BOTH THE YEARS) IS MORE THAN THE PRESCRI BED LIMIT THAT FOR A.Y. 2010 - 11 BEING AT RS.74.39 LACS. IN SUPPORT OF ITS CLAIM THAT THE REVENUE IS ALSO IN APPEAL FOR A.Y. 2010 - 11, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) HAS PLACED ON RECORD THE COMPLETE SET OF THE APPELLATE PAPERS QUA THE REVENUES APPEAL FOR A.Y. 2010 - 11 , WHICH BEARS THE RECEIPT OF THE R EGISTRY OF THE T RIBUNAL ON 02.3.2016. THE REVENUES APPEAL IS THUS SAVED BY THE EXCEPTION LISTED AT PARA 5 OF THE BOARD S CIRCULAR AFORE - REFERRED (COPY ON RECORD). THE APPEAL WAS, ACCORDINGLY, TAKEN UP FOR HEARING AND HEARD , AND IS BEING DECIDED ON MERITS. 2 . 2 THE COMMON CONTENTION OF THE PARTIES BEFORE US WAS THAT THE APPEAL WOULD REQUIRE BEING DECIDED BY THE LD. CIT(A) AFRESH ON MERITS. THIS IS AS THE ASSESSMENT IN THE FIRST INSTANCE WAS FRAMED U/ S. 143(3) ON 22.12.2011, I.E., AFTER THE DATE OF THE SEARCH ON THE ASSESSEE (FORMING PART OF BHARTI SHIP YARD GROUP OF CASES ) BY THE INVESTIGATION WING OF THE DEPARTMENT ON 24.11.2011. THESE FACTS , STATED AT PARAS 1 AND 2 OF THE ASSESSMENT ORDER , ALSO FIND I NG MENTION IN THE IMPUGNED ORDER (REFER PGS. 3, 8 AND 15) , ARE UNDISPUTED . THE ASSESSMENT (OR REASSESSMENT), THEREFORE, BEING PENDING AS ON THE DATE OF SEARCH (OR REQUISITION), THE SAME WOULD ABATE IN VIEW OF THE SECOND PROVISO TO SECTION 153A(1). THE LD. CIT(A), THOUGH OBSERVES THE SAID DATES, AS AFORE - NOTED , YET DELETES THE ADDITION ( AGITATED VIDE HER G ROUNDS 2 AND 3 BY THE ASSESSEE BEFORE HIM ) ON THE BASIS THAT THE SAME IS NOT MAINTAINABLE IN - AS - MUCH AS NO INCRIMINATING MATERIAL WAS FOUND DURING SEARCH, I.E., ACCEPTING THE ASSESSEES LEGAL PLEA TO THAT EFFECT, FOLLOWING THE DECISION BY THE SPECIAL BENCH OF THE TRIBUNAL IN ALL CARGO GLOBAL LOGISTICS LTD . VS. D Y. CIT [ 2012 ] 137 ITD 287 (MUM) (SB), SINCE AFFIRMED BY THE HONBLE HIGH COURT (REPORTED AT CIT V S. CONTINENTAL WAREHOUSING CORPORATION [2015] 374 ITR 645 (BOM) ). THE SAID DECISIONS, AS FAIRLY CONCEDED BY THE LD. AR BEFORE US , WOULD HAVE NO APPLICATION IN - AS - MUCH AS THE PROVISO TO SECTION 153A IS CLEARLY APPLICABLE, OPERATING TO ABATE ANY ASSESSMENT P ENDING AS ON THE DATE OF SEARCH/REQUISITION. IT IS ONLY WHERE SUCH ASSESSMENT (I.E., FOR ANY YEAR FALLING WITHIN 3 ITA NO. 1061/MUM/2016 (A.Y. 2009 - 10) DY. CIT VS. RADHIKA CHETAN MEHRA THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A(1)) IS NOT PENDING AS ON THE DATE OF SEARCH, THAT THE ASSESSMENT U/S. 153A (FOR THAT YEAR) WOULD IN TERMS OF THE SAID DECISION S BE REQUIRE D TO BE CONFINED TO THE FINDINGS OF THE SEARCH OR REQUISITION. 2.3 UNDER THE CIRCUMSTANCES, IT IS ONLY CONSIDERED FIT AND PROPER THAT THE REVENUES APPEAL, RAISING THE ISSUE ON MERITS VIDE ITS SOLE GROUND , IS RESTORED BACK FOR A DECISION AFRESH ON MERITS TO THE FILE OF THE LD. CIT(A) , WHO SHALL DECIDE THE SAME PER A SPEAKING ORDER AFTER HEARING BOTH THE SIDES. WE MAKE IT CLEAR THAT WE MAY NOT BE CONSTRUE D AS HAVING MADE ANY OBSERVATION WITH REGARD T O THE MERITS OF THE CASE. WE DECIDE ACCORDINGLY. 3 . IN THE RESULT, THE R EVENUE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 21 , 201 6 SD/ - SD/ - ( PAWAN SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 2 8 . 0 4 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI