Shrichand Shamdas Aswani, Pune V. Income-tax Officer, Pune

ITA 1184/PUN/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0321 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Tangible material; Documents seized
• Section: 143(3); 153C

Judgement Text

आयकर अपीऱीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JM AND SHRI DR. DIPAK P. RIPOTE, AM आयकर अपीऱ सं. / ITA No.1184/PUN/2017 ननधधारण वषा / Assessment Year : 2006-07 Shrichand Shamdas Aswani, C/o. Khandelwal Jain & Associates, Alankar Cinema Building, First Floor, Above United Bank, Pune – 411 001 PAN : AEHPA1627 G .......अपऩलधथी / Appellant बनधम / V/s. ITO, Wd 8(1), Pune ......प्रत्यथी / Respondent Assessee by : Shri Sarvesh Khandelwal Revenue by : Shri S. P. Walimbe सपनवधई की तधरऩख / Date of Hearing : 07.06.2022 घोषणध की तधरऩख / Date of Pronouncement : 06.07.2022 आदेश / ORDER PER S. S. GODARA, JM : 1. This assessee’s appeal for A.Y. 2006-07 is directed against the CIT(A)-6, Pune’s order dated 22/03/2017 passed in case No. PN/CIT(A)-V/ITO Wd.8(1)/96/2014-15 involving proceeding u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961; in short "the Act”. Heard both the parties. Case file perused. 2 ITA No.1184/PUN/2017 Shrichand Shamdas Aswani, 2. We notice at the outset that the assessee has moved a petition dated 22.11.2019 seeking to raise an additional ground that the impugned section 148/147 proceedings taken recourse to by the learned lower authorities is not sustainable in law. The Revenue has vehemently opposed the foregoing petition on the grounds of inordinate delay, estoppel as well as approbate and reprobate; as the case may be. 3. We find no merit in the Revenue’s foregoing technical objections in light of the tribunal’s decision in All Cargo Global Logistics Ltd. V/s DCIT (2012) 137 ITD 217 (Mumbai)(SB); after considering NTPC Ltd. V/s CIT 229 ITR 383 (SC) thereby holding that such an additional ground could very well be entertained in second appellate proceedings before us which goes to root of the matter; so as to determine correct tax liability of an assessee, provided all the relevant facts form part of records. There is hardly any dispute the assessee has already filed the clinching seized documents annexure R-3/ Bundle No.1 at page 17 of the paperbook. We therefore accept the assessee’s above stated petition dated 22.11.2019 raising its additional substantial ground challenging validity of section 148/147 proceedings. 4. We now advert to foregoing legal issue. There is hardly any dispute that the department had found/seized the impugned document in search action carried out in case of M/s. Nanasaheb S. Gaikwad group, indicating cash payment of Rs. 1,22,30,000/- accepted at the assessee’s behest. Suffice to say, it is the said seized documents R-3 (supra) that stands treated as the tangible material for recording reasons to belief that the assessee’s taxable income had escaped assessment. 3 ITA No.1184/PUN/2017 Shrichand Shamdas Aswani, 5. We make it clear first of all that the foregoing annexure R-3 forms part of record before us at page 17 (vernacular) and page 19 (translated version ). The Revenue could hardly dispute that the same is in the nature of cash receipt issued and signed by the assessee Shrichand Shamdas Aswani which “belongs” to him only. And it is at this stage that section 153C of the Act comes into play containing the non obstante clause “Notwithstanding anything contained in .........section 147......” having overriding effect over the general clause and therefore, we conclude that the learned lower authorities have erred in law and on facts in initiating the impugned reopening. The same stands quashed for this precise reason alone. Ordered accordingly. All other pleadings on merits are rendered academic. 6. This assessee’s appeal is allowed in above terms. Order pronounced in the Open Court on this 6 th day of July, 2022. Sd/- Sd/- SSS S (DR.DIPAK P.RIPOTE) (S.S. GODARA) लेखध सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य/JUDICIAL MEMBER पपणे / Pune; ददनधांक / Dated : 6 th July, 2022. Ashwini आदेश की प्रनतनलनप अग्रेनषत / Copy of the Order forwarded to : 1. अपऩलधथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A)-6, Pune. 4. The Pr.CIT-5, Pune. 5. नवभधगऩय प्रनतनननध, आयकर अपऩलऩय अनधकरण, “ए” बेंच, पपणे / DR, ITAT, “A” Bench, Pune. 6. गधर्ा फ़धइल / Guard File. 4 ITA No.1184/PUN/2017 Shrichand Shamdas Aswani, आदेशधनपसधर / BY ORDER, // True Copy // Senior Private Secretary आयकर अपऩलऩय अनधकरण, पपणे / ITAT, Pune. 5 ITA No.1184/PUN/2017 Shrichand Shamdas Aswani, S.No. Details Date Initials 1 Draft dictated on 07.06.2022 2 Draft placed before author 04.07.2022 3 Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order