Mrs. Charanjeetkaur L. Rajpal, Pune V. Dy. CIT,Central Circle-1(1), Pune

ITA 1176/PUN/2007

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67134 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-12-2012
• Assessment Year: misc
• Appeal Filed On: 11-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMAND KUMAR C LUAVA
• Assessee Lawyers: MAHENDRA MEHTA
• Keywords: Search and seizure; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1130 / P N/ 20 07 ASSESSMENT YEAR : 1990 - 91 TO 2000 - 01 THE DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIR. - 1(1), PUNE VS. SMT. CHARANJEET KAUR RAJPAL, 83, EMPRESS VIEW SOCIETY, SOPANBAUG, PUNE (APPELLANT) (RESPONDENT) PAN NO. AEIPR0186C ITA NO. 1176 /PN/20 07 ASSESSMENT YEAR : 1989 TO 2000 MRS. CHARANJEETKAUR L. RAJPAL, 83, EM PRESS VIEW SOCIETY, SOPANBAUG, PUNE VS. THE DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIR. - 1(1), PUNE (APPELLANT) (RESPONDENT) PAN NO. AEIPR0186C A SSESSEE BY: SHRI MAHENDRA MEHTA & BHARAT SHAH R EVENUE BY: SHRI HEMAND KUMAR C. LUAVA DATE OF HEAR ING : 23 - 05 - 2013 DATE OF PRONOUNCEMENT : 26 - 07 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THESE TWO CROSS APPEALS ARE FILED BY THE ASSESSEE AS WELL AS REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - I, PUNE DATED 26 - 06 - 2007. THIS APPEAL IS ARISI NG OUT OF ASSESSMENT FRAME D U/S. 158BD OF THE INCOME - TAX ACT VIDE ASSESSMENT ORDER DATED 16 - 04 - 2004. BOTH THE PARTIES HAVE TAKEN THE MULTIPLE GROUNDS IN THIS APPEAL. THE ASSESSEE HAS RAISED A LEGAL GROUND WITH PLEA THAT AS THE ASSESSMENT IS FRAMED U/S. 1 58BD , T HE A.O. , WHO COMPLETED THE ASSESSMENT OF THE SEARCH P ROCEEDING HAS NOT RECORDED THE SPECIFIC SATISFACTION WHICH IS ONE OF THE MANDATES SEC. 158BD OF THE I.T. ACT. 2. THE FACTS REVEALED FROM THE RECORD ARE AS UNDER. THERE WAS A SEARCH AND SEIZURE U/S. 132(1) OF THE INCOME - TAX ACT, 1961 ON 14 - 03 - 2 ITA NOS. 1130 & 1176/PN/2007, SMT. CHARANJEET KAUR RAJPAL & MRS. CHARANJEETKAUR L. RAJPAL 2000 IN THE RAJPAL GROUP OF CASES. AS OBSERVED BY THE ASSESSING OFFICER DURING THE COURSE OF SEARCH ACTION CERTAIN BOOKS OF ACCOUNT AND DOCUMENTS RELATING TO THE PRESENT ASSESSEE WERE FOUND. THE ASSESSEE CARRYING ON THE TRANSPORT BUSINESS AS WELL AS COMMISSION AGENCY UNDER THE NAME AND STYLE AS M/S. AMARJEET ROADWAYS AT MUMBAI AND BELONGED TO RAJPAL GROUP OF CASES. ADMITTEDLY THE ASSESSEE WAS NOT COVERED IN THE SEARCH OPERATION BUT ON THE BASIS OF INCRIMI NATING MATERIAL FOUND DURING THE COURSE OF SEARCH , NOTICE U/S. 158BD WAS ISSUED TO THE ASSESSEE DATED 09 - 04 - 2002. THE ASSESSEE WAS REQUIRED TO FILE THE BLOCK RETURN WITHIN 16 DAYS FROM THE DATE OF RECEIPT OF NOTICE. THE ASSESSEE FILED BLOCK RETURN DECLAR ING UNDISCLOSED INCOME AT RS. NIL. THE ASSESSMENT OF THE ASSESSEE HAS BEEN COMPLETED BY THE ASSESSING OFFICER DETERMINING TOTAL UNDISCLOSED INCOME OF RS.1,14,55,321/ - FOR THE A.YS. 1993 - 94 TO 2000 - 01 WHICH ARE COVERED IN THE BLOCK PERIOD. THE ASSESSEE CA RRIED THE MATTER BEFORE THE LD. CIT( A) RAISING THE SERIOUS GRIEVANCE AGAINST THE ASSESSMENT ORDER AND THE LD. CIT(A) PARTLY ALLOWED THE ASSESSEES APPEAL IN THE SOME ASSESSMENT YEAR COMPRISES FOR THE BLOCK PERIOD AND ALSO MADE THE ENHANCEMENT OF INCOME IN THE A.YS. 1993 - 94 & 1994 - 95. 3. NOW THE ASSESSEE HAS TAKEN THE PLEA THAT THE RECORDING OF THE SATISFACTION BY THE ASSESSING OFFICER WHO HAS COMPLETED THE ASSESSMENT OF THE SEARCH ED PERSON IS ONE OF THE MANDATE OF SEC. 158BD. THE LEARNED COUNSEL ALSO RE LIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT 289 ITR 341 (SC). HE ALSO RELIED ON THE FOLLOWING PRECEDENTS IN SUPPORT OF THE GROUND TAKEN BY THE ASSESSEE (I) ACIT VS. A.R. ENTERPRISES 29 TAXMANN.COM 50 (SC), ( II) CIT VS. RADHEY SHYAM BANSAL 337 ITR 217 (DEL), (III) MANOJ AGARWAL VS. DCIT 113 ITD 377 (SB) . 4. THE BENCH HAS GIVEN DIRECTION S TO THE DEPARTMENT VIDE ORDER SHEET NOTING DATED 21 - 02 - 2013 TO PRODUCE THE ASSESSMENT RECORD ALONG WITH 3 ITA NOS. 1130 & 1176/PN/2007, SMT. CHARANJEET KAUR RAJPAL & MRS. CHARANJEETKAUR L. RAJPAL SATISFACTION NOTE TO DECIDE THE LEGAL ISSUE RAISED BY THE ASSESSEE. IT IS SEEN THAT FOR THE FIRST TIME THE ASSESSEE HAS TAKEN TH IS GROUND BEFORE THE TRIBUNAL AND ENTIRE RECORD IS ALSO NOT AVAILABLE TO DECIDE SAID GROUND . THIS ISSUE WAS NOT RAISED BEFORE THE LD. CIT(A) ALS O. THE LEGAL GROUND TAKEN BY THE ASSESSEE CHALLENGING LEGALITY AND VALIDITY OF THE ASSESSMENT ORDER GOES TO ROOTS OF THE ENTIRE CASE. WE , THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES , RESTORE THE ISSUE OF LEGALITY AND VALIDITY OF THE ASSESSMENT ORDER PASSED U/S. 158BD FOR FAILURE TO RECORD THE SATISFACTION IN VIEW OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT (SUPRA) TO LD. CIT(A) . WE MAKE IT CLEAR THAT ALL OTHER GROUND S TAKEN BY THE REVENUE AS WELL AS THE ASS ESSEE ARE KEPT OPEN. THE LD. CIT(A) IS DIRECTED TO CALL FOR THE ASSESSMENT RECORD OF THE ASSESSEE FROM THE ASSESSING OFFICER AND EXAMINE THE SAME WHETHER THE MANDATE OF SEC. 158BD HAS BEEN COMPLIED WITH BY RECORDING THE SATISFACTION AS CONTEMPLATED IN THE SAID SECTION AS HELD IN THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT (SUPRA). NEEDLESS TO SAY THE CIT(A) IS DIRECTED TO GIVE AN OPPORTUNITY BEING HEARD TO THE ASSESSEE AND DECIDE THIS IMPORTANT LEGAL ISSUE AFTER EXA MINING ASSESSMENT RECORD AND AFTER CONSIDERING RELEVANT PRECEDENT ON THIS ISSUE . IF THE CIT(A) HOLDS THAT THE MANDATE OF SEC. 158BD HAS NOT BEEN COMPLIED WITH AS DISCUSSED ABOVE THEN BOTH THE APPEALS WILL NOT SURVIVE. 5. IN THE RESULT, BOTH THE APPEAL S ARE ALLOWED FOR THE STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 26 - 07 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 26 TH JULY, 20 1 3 4 ITA NOS. 1130 & 1176/PN/2007, SMT. CHARANJEET KAUR RAJPAL & MRS. CHARANJEETKAUR L. RAJPAL COPY TO 1 DEPARTMENT 2 ASSESSEE 3 THE CIT(A) - I, PUNE 4 THE CIT - I, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE