Ravindra Bhikaji Naike, Pune V. Assistant Commissioner of Income tax, Pune

ITA 1203/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9730 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH C GROVER
• Keywords: Search and seizure
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO. 1203 /PUN/20 17 / ASSESSMENT YEAR : 2011 - 12 RAVINDRA BHIKAJI NAIKE, SHIV SHANTAI, ROW HOUSE NO.1, WESTERN COURT CHSL, BEHIND INDULAL COMPLEX, NAVI PETH, PUNE - 411 030 PAN : AAIPN0842R ....... / APPELLANT / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 5, PUNE / RESPONDENT A SSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI SATISH C. GROVER / DATE OF HEARING : 06 .01.2020 / DATE OF PRONOUNCEMENT : 06 .01.2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF TH E LD. CIT(APPEALS), PUN E - 5 DATED 23.12.2016 FOR THE ASSESSMENT YEAR 2011 - 12 AS PER THE GROUNDS OF APPEAL ON RECORD. 2 ITA NO. 1203 /PUN/20 17 A.Y. 2011 - 12 2. THAT APART, THE ASSESSEE ALSO FILED ADDITIONAL GROUN DS AND BASED ON THE DECISION OF THE HON BLE SUPREME COURT OF INDIA IN THE CASE OF NTPC VS. CIT REPORTED IN 229 ITR 383 (SC) , THE LD. AR OF THE ASSESSEE SUBMITTED THAT SINCE THESE ADDITIONAL GROUNDS GOES INTO THE ROOT OF THE MATTER AND THERE FORE, THE SAME MAY B E ADMITTED IN THIS CASE. THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT IF THE ASSESSEE SUCCEEDS IN GROUND NO.1 OF THE ADDITIONAL GROUNDS IN THAT CASE , ALL OTHER GROUNDS IN THE APPEAL MEMO AND AN Y OTHERS GROUNDS IN THE ADDITIONAL GROUNDS APPEAL MEMO WILL BECOME ACADEMIC IN NATURE. THE ADDITIONAL GROUN D NO.1 READS AS UNDER: 1. THE ASSESSEE SUBMITS THAT THE LEARNED AO ERRED IN MAKING AN ADDITION OF RS .37,00,000/ - U/S.143(3) WITHOUT APPRECIATING THAT THE ADDITION WAS BEING MADE ON THE BASIS OF THE PAPER S EIZED FROM SHRI GAJENDRA PAWAR AND HENCE, IF AT ALL, ANY ADDITION WAS REQUIRED TO BE MADE, THE SAME SHOULD HAVE BEEN MADE BY INVOKING THE PROVIS IONS OF SECTION 153C. 3. THAT THE FACTS ON RECORD AS PER THE ASSESSMENT ORDER WHEREIN SEARCH AND SEIZURE ACTION U/S.132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS CONDUCTED IN THE CASE OF PINNACLE GROUP, PUNE. SHRI GAJENDRA D PAWAR PROP. M/S. PINNACLE CONSTRUCTIONS HAD CONSTRUCTED THE PROJECT PINNACLE KALPATARU CTS NO.1173, ERANDWANE, PUNE. THAT AS PER THE STATEMENT OF SHRI GAJENDRA D. PAWAR RECORDED U/S.132(4) OF THE ACT ON 11.02.2011 WHEREIN IN REPLY TO QUESTION NO. 15, SHRI GAJENDRA D PAWAR HAS ACCEPTED THAT HE HAD RECEIVED CASH OF RS.37,00,000/ - OVER AND ABOVE THE AGREEMENT VALUE OF RS.71,75,000/ - FROM SHRI RAVI NDRA B. NAIK I.E. THE ASSESSEE. 4. THE LD. AR OF THE ASSESSEE VEHEMENTLY ARGUED THAT IN THE GIVEN FACTS AND CIRCUMSTANCES, PROVISIONS OF SEC TION 153C OF THE ACT SH OULD HAVE BEEN 3 ITA NO. 1203 /PUN/20 17 A.Y. 2011 - 12 INVOKED AND NOT SECTION 143(3) OF THE ACT WHILE FRAMING THE ASSESSMENT . T HIS IS PARTICULARLY BECAUSE SEARCH ACTION WAS CONDUCTED AT THE PREMIS ES OF SHRI GAJENDRA D PAWAR AND BASED ON HIS STATEMENT THE ASSESSING OFFICER HAS MADE THE ADDITION. THE LD. AR FURTHER SUBMITTED THAT IN ITA NO.751/PUN/2016 FOR ASSESSMENT YEAR 2010 - 11, THE FACTS AND CIRCUMSTANCES WERE SUBSTANTIALLY SIMILAR AND SIMILAR GROUNDS WERE TO BE DECIDED BEFORE THE TRIBUNAL THAT WHETHER ACTION OF THE ASSESSING OFFICER IN NOT RESORTING TO SECTION 153C OF THE ACT WAS CORRECT OR NOT IN THE GIVEN FACTS A ND CIRCUMSTANCES. THAT THERE IN, THE TRIBU NAL REFERRED TO ANOTHER DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL , PUNE IN ITA NO.1971/PUN/2014 FOR THE ASSESSMENT YEAR 2006 - 07 WHEREIN THE ISSUE WAS WHERE THE BASIS OF MAKING INVESTIGATION AND ASSESSMENT T HEREAFTER IN THE HANDS OF ASSESSEE IS ON THE BASIS OF INFORMATION UNEARTHED DURING THE COURSE OF SEARCH ACTION ON THE PREMISES OF SOME OTHER PERSON OTHER THAN THE ASSESSEE , THEN WHETHER PROCEEDINGS ARE TO BE INITIATED UNDER SECTION 147/ 148 OR UNDER SECTION 153C OF THE ACT. THE TRIBUNAL IN ITA NO. 1 971/PUN/2014 (SUPRA.) AT PARA 6 OF THAT ORDER HAS DISCUSSED THE DECISION AT LENGTH WHICH IS ALSO PART OF THAT ORDER. THEREAFTER, THE TRIBUNA L HAS OBSERVED IN THE SUCCEEDING PARAGRAPHS AS FOLLOWS: 7. REVERTING TO THE FACTS OF THE PRESENT CASE, THE ASSESSMENT WAS COMPLETED U/S.143(3) R.W.S147 OF THE ACT. THEN AT PAGE 11 OF THE ASSESSMENT ORDER, SEIZED DOCUMENT IMPOUNDED DURING THE SEARCH ACTION IN THE BUSINESS PREMISES OF SHRI GAJENDRA PAWAR (BUILDER OF PINNACLE KALPATARU) REGARDING CASH PAYMENT OF RS.87,07,500/ - OVER AND ABOVE THE AGREEMENT VALUE BY THE ASSESSEE FOR THE PURCHASE OF FLAT NO. 604, 605 A ND 606. THEREFORE, SEARCH ACTION HAD TAKEN PLACE IN THE PREMISES OF SHRI GAJENDRA D PAWAR WHEREIN SO ME DOCUMENTS WERE FOUND SUGGESTING THAT SOME MONEY WAS PAID IN CASH OVER AND ABOVE AGREEMENT VALUE BY THE ASSESSEE. 8. NOW COMING TO THE SECTION 153C OF THE ACT THAT WHEN ANY DOCUMENT OR BOOKS OF ACCOUNT OR OTHER ASSETS AS REFERRED TO THEREIN IS FOUND IN THE PREMISES WHICH DOES NOT BELONG TO THE PERSON WHOSE PREMISES IS BEING SEARCHED BUT ACTUALLY BELONGS TO SO ME OTHER PERSON, IN THIS CASE, THE ASSESSEE , I N SUCH SCENARIO, S ECTION 153C ONLY SHALL APPLY. THE VERY 4 ITA NO. 1203 /PUN/20 17 A.Y. 2011 - 12 OPENING OF STATEMENT IN SECTION 153C STATES THAT NOTWITHSTANDING ANYTHING CONTAINED IN SECTIONS 139, 147, 148, 149, 151 AND 153 OF THE ACT WHICH ASCERTAINS THE OVERRIDING EFFECT OF SECTION 153C OF THE ACT VIS - - VIS OTHER PROVISIONS REFERRED THEREIN. ON EXAMINATION OF FACTS, APPLICATION OF SECTION 153C OF THE ACT IS ABSOLUTELY JUSTIFIABLE. 9. RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, PUNE IN ITA NO.1971/PUN/2014 (SUPRA.) , WE HOLD THAT THE ASSESSING OFFICER AFTER RECEIPT OF INFORMATION BELONG ING TO THE ASSES SEE SHOULD HAVE INVOKED THE PROVISIONS OF SECTION 153C OF THE ACT AND NOT THE PROVISIONS OF SECTION 147/148 OF THE ACT. CONSEQUENTLY, REASSESSMENT ORDER PASSED U/S.14 7 OF THE ACT DOES NOT STAND. THE ASSESSING OFFICER IS , THUS , DIRECTED TO CANCEL THE SAME. 5 . PER CONTRA, THE LD. DR PLACED STRONG RELIANCE ON THE ORDERS OF THE SUB - ORDINATE AUTHORITIES. 6. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE HA VE ALSO ANALYZED THE JUDICIAL PRONOUNCEMENT S PLACED ON RECORD. WE OBSERVE THAT IN THE PRESENT CASE AS WE LL AS IN THE CASE REFERRED BEFORE US BY THE LD. AR OF THE ASSESSEE I N ITA NO.751/PUN/2016, THE FACTS ARE SUBSTANTIALLY SIMILAR WHEREIN SEARCH AND SEIZURE ACTION U/S.132 OF THE ACT WAS CONDUCTED IN THE CASE OF PINNACLE GROUP, PUNE AND PROPRIETO R SHRI GAJENDRA D PAWAR HAD MADE A STATEMENT U/S.132(4) OF THE ACT ACCEPTING THAT HE HAS RECEIVED CERTAIN AMOUNT OF CASH OVER AND ABO VE AGREEMENT VALUE. T HE ONLY DIFFERENCE IS , IN THE CASE OF THE ASSESSEE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT WHEREAS, IN THE CASE REFERRED BY THE LD. AR IN ITA NO.751/PUN/2016 (SUPRA.) SECTION RESORTED TO WAS 147/148 OF THE ACT. HOWEVER, FACTS REMAINS THAT THE ENTIRE ADDITION BY THE ASSESSING OFFICER WAS MADE IN THE HANDS OF TH E ASSESSEE WHEN SEARCH WAS CONDUCTED IN THE PREMISES OF SOME OTHER PERSON AND AS PER STATEMENTS OF THAT OTHER PERSON RECORDED U/S.132(4) OF THE ACT. IN SUCH SCENARIO , THE ASSESSING OFFICER AFTER RECEIPT OF INFORMATION RELATING TO THE ASSESSE E SHOULD HAVE INVOKED PROVISION S OF SECTION 153C OF THE ACT AND NOT THE PROVISION OF SECTION 143(3) OF THE ACT. THIS VIEW HAS BEEN UNANIMOUSLY 5 ITA NO. 1203 /PUN/20 17 A.Y. 2011 - 12 TAKEN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL, PUNE IN ITA NO. 1 971/PUN/2014 (SUP RA.) AND IN ITA NO.751/PUN/2016 (SUPRA.) C ONSEQUENTLY THEREFORE, ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT DOES NOT STAND. T HE ASSESSING OFFI CER IS DIRECTED TO CANCEL THE SAME. 7. SINCE THE ASSESSEE SUCCEEDS IN GROUND NO.1 OF THE ADDITIONA L GROUNDS OF APPEAL, ALL OTHER GROUNDS FILED BEFORE US BECOME S ACADEMI C IN NATURE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED ON 06 TH DAY OF JANUARY , 20 20 . SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 06 TH JANUARY, 2020. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE - 5, PUNE. 4. THE PR. CIT, PUNE - 4, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 6 ITA NO. 1203 /PUN/20 17 A.Y. 2011 - 12 DATE 1 DRAFT DICTATED ON 0 6 .01.2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 06 . 01 .20 20 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 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