T. Saritha, Hyd, Hyderabad V. DCIT, Central Circle-3, Hyd, Hyderabad

ITA 1094/HYD/2015

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2166 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 13-05-2021
• Assessment Year: 2006-2007
• Appeal Filed On: 21-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARAYANA MURTHY NAIK
• Assessee Lawyers: S RAMA RAO
• Section: 153A; 73; 153C; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. AY. APPELLANT RESPONDENT 1093/HYD/15 2006-07 T.NANDA KISHORE, HYDERABAD [PAN: AJLPT1429N] DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, HYDERABAD 1094/HYD/15 THUNUGUNTLA SARITA, HYDERABAD [PAN: AJPPT9347M] FOR A SSESSEE : SHRI S.RAMA RAO, A R FOR REVENUE : SHRI N A RAYAN A MURTHY NAIK , D R DATE OF HEARING : 1 3 - 0 5 - 20 2 1 DATE OF PRONOUNCEMENT : 29 - 0 6 - 2021 O R D E R PER S.S.GODARA, J.M. : THESE TWO ASSESSEES APPEALS FOR AY.2006-07 ARISES AGAINST THE CIT(A)-12, HYDERABADS ORDER(S) DATED 31- 03-2015 PASSED IN APPEAL NOS.0275 & 0096/CIT(A)-12/HYD/2014 -15 INVOLVING PROCEEDINGS U/S.143(3) R.W.S.153C OF THE I NCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THESE ASSESSEES INSTANT APPEALS SUFFER FROM 73 DAYS DELAY STATED TO BE ATTRIBUTAB LE TO THE REASON(S) BEYOND THEIR CONTROL AS PER CONDONATION PETITION(S)/AFFIDAVIT(S). NO REBUTTAL HAS COME FROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THER EFORE. ITA NOS. 1093 & 1094/HYD/2015 :- 2 -: 3. WE COME TO FORMER ASSESSEES APPEAL ITA NO.1093/HYD/2015 SEEKING TO REVERSE BOTH THE LOWER AUTHORITIES ACTION INITIATING SECTION 153C PROCEEDING S FOLLOWED BY UN-EXPLAINED INVESTMENT ADDITION OF RS.16 LAKHS MA DE IN THE COURSE OF ASSESSMENT DT.22-03-2013 AS UPHELD IN THE CIT(A)S ORDER. THIS ASSESSEE HAS ALSO FILED PETITIO N SEEKING TO RAISE AN ADDITIONAL GROUND THAT THE ASSESSING OFFICER H AD NOT RECORDED REASONS BEFORE ISSUING SECTION 153C NOTICE. THE REVENUE STRONGLY OBJECTED TO THE ABOVE STATED PETITION AT THIS BELATED STAGE ON THE GROUND THAT THE SAME TENDS TO GIVE ALTOGETHER A NEW TEXTURE TO THE ALREADY RAISED ISSUES. IT FAILS TO DISPUTE THAT THE ASSESSEE HAS CHALLENGED VALIDITY OF TH E IMPUGNED ASSESSMENT(S) PROCEEDINGS BEFORE THE CIT(A) AS WELL IN HIS GROUND NO.1 IN THE TRIBUNAL. THIS ADDITIONAL GR OUND IS THEREFORE FOUND ONLY AS A SUPPLEMENTARY ONE TO THAT ALRE ADY PLEADED IN HIS FORM-36 FILED EARLIER. HON'BLE APEX COURTS LANDMARK DECISION IN NATIONAL THERMAL POWER CO. LTD. , VS., CIT [229 ITR 383] (SC); AS CONSIDERED IN TRIBUNALS SPECIAL BENCHS DECISION ALL CARGO GLOBAL LOGISTICS LTD., VS . DCIT (2012) [137 ITD 217](SB) (MUMBAI), HOLDS THAT - WE CAN VERY WELL ENTERTAIN SUCH A NEW GROUND GOING TO ROOT OF T HE MATTER SO AS TO DETERMINE CORRECT TAX LIABILITY OF A TAXPAYER PROVIDED ALL RELEVANT FACTS ARE ALREADY ON RECORD . WE ADOPT THE VERY REASONING AND ADMIT THE ASSESSEES FOREGOING ADDITIONA L GROUND. 4. WE NOW COME TO THE FOREGOING LEGAL ISSUE OF VALIDI TY OF SECTION 153C PROCEEDINGS. IT IS NOT IN DISPUTE FROM A PERUSAL OF THE PAPER BOOK DT.04-05-2016 THAT THE ASSESSING OFFI CER HAD FIRST OF ALL ISSUED HIS NOTICE DT.13-01-2012 U/S.1 53A OF THE ITA NOS. 1093 & 1094/HYD/2015 :- 3 -: ACT (PG.7). IT IS FURTHER AN ADMITTED FACT THAT THE DEPARTM ENT HAD ALSO CONDUCTED THE SEARCH IN ASSESSEES CASE AS W ELL. AND ALSO THAT ASSESSING OFFICER HAD ISSUED SECTION 153C N OTICE ON 13-01-2012 ONLY. MEANING THEREBY THAT THE CRUCIAL DATE HEREIN I.E., 13-01-2012 WITNESSED THE ASSESSING OFFICERS TW IN FOLDED ACTION INITIATING BOTH THE 153A AS WELL AS 153C PROCEED INGS CULMINATING IN THE IMPUGNED ASSESSMENT U/S.153C OF TH E ACT. WE HOLD IN THIS CLINCHING FACTUAL BACKDROP THAT THE IMPU GNED ASSESSMENT SUFFERS FROM A PATENT LEGAL DEFECT AT THE THRES HOLD ITSELF SINCE THE ASSESSING OFFICER OUGHT TO HAVE INITI ATED THE SAME U/S.153A IN CASE OF THE SEARCHED ASSESSEE THAN A THIRD PARTY. WE THUS ADOPT STRICTER CONSTRUCTION GOING BY HON' BLE APEX COURTS FULL BENCH DECISION COMMISSIONER OF CUS TOMS VS. DILIP KUMAR (2018) 9 SCC 1 (SC) AND QUASH THE IMPUG NED ASSESSMENT ITSELF AS INVALID. ALL OTHER PLEADINGS ON MERITS ARE RENDERED INFRUCTUOUS. THIS FORMER ASSESSEES APPEAL ITA NO.1093/HYD/2015 SUCCEEDS IN FOREGOING TERMS. 5. NEXT COMES LATTER ASSESSEE SMT.T.SARITAS APPEAL ITA NO.1094/HYD/2015. SUFFICE TO SAY, SHE HAS ALSO FILED HER PETITION SEEKING ADMISSION OF ADDITIONAL GROUND CHALL ENGING VALIDITY OF SECTION 153C NOTICE. WE REJECT REVENUES TECHNICAL ARGUMENTS GOING BY OUR PRECEDING REASONING IN FORMER ASSESSEES APPEAL. 6. WE STAY BACK ON THE SAME QUESTION AND COME TO PG.9 OF THE ASSESSEES PAPER BOOK DT.04-05-2016 CONTAINING THE ASSESSING OFFICERS SECTION 153C NOTICE DT.14-02-2012 AS FOLLOWS: ITA NOS. 1093 & 1094/HYD/2015 :- 4 -: PAN NO. DATE:-14/01/2012. TO SMT. THUNUGUNTLA SARITHA, W/O NANDA KISHORE, D.NO:13-4-18, 3RD LINE, CUNTURIVARITHORA, GUNTUR. ASST.YEAR: 2006-07 SIR, WHEREAS A SEARCH WAS INITIATED UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 / OR BOOKS OF ACCOUNTS, OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A ON 16/ 09/2010 IN YOUR CASE. AND IN PURSUANCE OF THE PROVISIONS OF SECTION 153A( B) OF THE INCOME TAX ACT, 1961 IT IS REQUIRED TO ASSESS OR RE ASSESS YOUR TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDIN G THE ASSESSMENT-YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SUCH SEARCH IS CONDUCTED. YOU ARE HEREBY REQUIRED TO FURNISH, WITHIN 30 DAYS OF RECEIPT OF THIS NOTICE, THE RETURN OF INCOME IN RESPECT OF ASS ESSMENT YEAR 2006- 07 FALLING WITHIN SIX ASSESSMENT YEARS IN THE PRESC RIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH . SUCH OTHER PARTICULARS AS MAY APPLY ACCORDINGLY AS IF SUCH RET URN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 OF THE I NCOME TAX ACT, 1961. 7. LEARNED CIT-DR FAILS TO DISPUTE THAT THE ASSESSING OFFICER HEREIN HAS NOWHERE MADE IT CLEAR AS TO WHETHER THE ALLEGED INCRIMINATING MATERIAL FOUND/SEIZED DURING THE COURSE OF SEARCH BELONGED TO THE ASSESSEE OR NOT? WE THUS CON TINUE TO ADOPT STRICTER INTERPRETATION (SUPRA) AND HOLD THAT THE IMPUGNED SECTION 153C REASONING FAILED TO RECORD THE DUE SATISFACTION AS PRESCRIBED IN THE ACT BEFORE PROCEEDIN G AGAINST THE ASSESSEE. THE IMPUGNED ASSESSMENT STAND QUASHED THEREFORE. ALL OTHER PLEADINGS ON MERITS ARE RENDERED ITA NOS. 1093 & 1094/HYD/2015 :- 5 -: INFRUCTUOUS. THIS LATTER ASSESSEES APPEAL ITA NO.1094/HYD/2015 IS ALSO ACCEPTED IN FOREGOING TERMS. 8. TO SUM-UP, THESE TWO ASSESSEES APPEALS ARE ALLOW ED. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIV E CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER HYDERABAD, DATED: 29-06-2021 TNMM ITA NOS. 1093 & 1094/HYD/2015 :- 6 -: COPY TO : 1.T.NANDA KISHORE, C/O. SRI S.RAMA RAO, ADVOCATE, F LAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 2.THUNUGUNTLA SARITA, C/O. SRI S.RAMA RAO, ADVOCATE , FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 3.DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -3, HYDERABAD. 4.CIT(APPEALS)-12, HYDERABAD. 5.PR.CIT(CENTRAL)-HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.