Rachna Gupta, Chandigarh V. ACIT, Chandigarh

ITA 122/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73497 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-02-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 07-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: ASHWANI KUMAR GUPTA
• Keywords: Assessment record
• Section: 153A; 246; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 116 TO 122/CHD/2013 ASSESSMENT YEARS: 1999-2000 TO 2005-06 RACHNA GUPTA VS. THE ACIT 3007, SEC- 19 D CENTRAL CIRCLE CHANDIGARH CHANDIGARH PAN NO. AFSPG0092F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. ASHWANI KUMAR GUPTA RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 26/02/2014 DATE OF PRONOUNCEMENT : 11/03/2014 ORDER PER BENCH. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST THE ORDER DATED 08/11/2012 OF CIT(APPEALS) (CENTRAL), GURGAON. 2. IN ALL THESE APPEALS COMMON GROUNDS HAVE BEEN RA ISED BY THE ASSESSEE. HOWEVER, THE GROUNDS RAISED IN ITA NO. 116/CHD/2013 ARE AS UNDER:- 1) THAT THE LD. CIT(A) ERRED IN THE LAW AND ON FACT S IN SUSTAINING THE ASSESSMENT AS PER SEARCH SCHEME U/S 153 A OF THE ACT DESPITE THE FACT THAT THERE WAS NO SEARCH IN TH E CASE OF APPELLANT. 2) THAT DESPITE DIRECTIONS BY THIS HONBLE TRIBUNAL WHILE RESTORING THE APPEALS FOR FRESH DECISION, THE LD. C IT(A) AVOIDED TO DEAL WITH THE ISSUE OF JURISDICTION OF THE AO BY VIRTUE OF SEC 127 OF THE ACT, ON THE GROUND THAT CIT(A) IS NOT EM POWERED U/S 2 246 A OF THE ACT TO ADJUDICATE ON THE MATTER AND AL SO AVOIDED TO GIVE ANY FINDINGS ON INACTION OF THE LD. AO AS PER SEC 124 OF THE ACT. 3) THAT THE LD. AO HAD SUBMITTED THE REMAND REPORT TO THE LD. CIT(A), BUT COPY THEREOF IS NOT PROVIDED TO THE ASS ESSES. 4) THAT THE LD. CIT(A) HAS PASSED COMMON ORDER IN B UNCH OF APPEALS ARISING FOR VARIOUS ASSESSMENT YEARS, THE C OPY OF ORIGINAL ORDER IS ATTACHED WITH ONE APPEAL AND WITH REST OF APPEALS ATTESTED COPIES OF ORDER IS ATTACHED. 5) THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR ADD TO THE ABOVE GROUNDS OF APPEAL, BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 6) IT IS PRAYED THAT THE ENTIRE ASSESSMENT RECORD O F THE LD. AO AND THE SEARCH RECORD OF THE CASE MAY KINDLY BE SUM MONED FOR BETTER APPRECIATION OF THE FACTS OF THE CASE. 7) THE APPELLANT SHALL SUBMIT THE PAPER BOOK DURING THE HEARING IN THE MATTER. 3. AT THE OUTSET LD. DR SUBMITTED THAT NO ADDITIONS HAVE BEEN MADE AS NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH, THEREFORE, THE APPEALS ARE OF ACADEMIC NATURE ONLY. FURTHER, SIMILAR ISSUES AROS E IN THE CASE OF MS MONICA GUPTA CHANDIGARH VS ACIT IN ITA NOS. 139 TO 144/CH D/2013 WHICH HAS BEEN ADJUDICATED BY THE TRIBUNAL IN ITA NOS. 139 TO 144/ CHD/2013 THE MATTERS RAISED NOW ARE SQUARELY COVERED BY THAT ORDER. 4. ON THE OTHER HAND, SHRI ASHWANI GUPTA WHO IS BR OTHER OF THE ASSESSEES HUSBAND WHO HAS BEEN DULY AUTHORIZED TO APPEAR BEFO RE US STATED THAT NO DOUBT ISSUES ARE IDENTICALLY THE SAME AS IN THE CASE OF M S MONICA GUPTA, HOWEVER, THERE IS ONE DIFFERENCE. IN THAT CASE NO SEARCH W ARRANT WAS ISSUED AND THEREFORE, THE PROCEEDINGS COULD NOT HAVE BEEN TAKE N. IN THE REJOINDER, THE LD. 3 DR REFERRED TO THE PAPER BOOK NO. 3/1 FILED BY THE ASSESSEE IN CASE OF SHRI AJAY GUPTA (AS APPEALS OF SHRI AJAY KUMAR GUPTA IN ITA N O.123/CHD/2013 TO 127/CHD/2013 WERE ALSO LISTED AND HEARD TODAY ALONG WITH THE APPEALS OF THE ASSESSEE). IN THE CASE OF SHRI AJAY KUMAR GUPTA AS POINTED OUT AT PAGE 79 WHICH IS COPY OF THE PANCHNAMA WHERE NAME OF SMT. RACHNA GUPTA IS CLEARLY MENTIONED. FURTHER, HE ALSO REFERRED TO PAGE 85 WH ICH IS COPY OF THE SEARCH WARRANT WHERE CLEARLY NAME OF SMT. RACHNA GUPTA IS MENTIONED. 5. GROUND NO.1. PERUSAL OF THE PAGE 85 WHICH IS CO PY OF THE WARRANT CLEARLY SHOWS THAT SEARCH WARRANT WAS ISSUED IN THE NAME OF SHRI AJAY KUMAR GUPTA AND SMT. RACHNA GARG FOR THE SEARCH OF LOCKER NO.62, S BI. INDUSTRIAL AREA, PHASE I, CHANDIGARH. A PANCHNAMA IS ALSO MADE AFTER SEARCH OF LOCKER NO. 62, COPY OF WHICH IS AVAILABLE AT PAGE 79, THEREFORE, IT IS CLE AR THAT A SEARCH WARRANT WAS ISSUED AND SEARCH WAS CONDUCTED. THE SEARCH WARRANT WAS COMBINED IN THE NAME OF SHRI AJAY KUMAR GUPTA AND SMT. RACHNA GARG. WE FURTHER FIND THAT SECTION 292 CC HAS BEEN INSERTED BY FINANCE ACT 2012 WITH R ETROSPECTIVE EFFECT FROM 1.4.1996. THE SECTION READS AS UNDER:- AUTHORISATION AND ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 292CC. (1) NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT, (I) IT SHALL NOT BE NECESSARY TO ISSUE AN AUTHORIS ATION UNDER SECTION 132 OR MAKE A REQUISITION UNDER SECTION 132A SEPARATELY IN THE NAME OF EACH PERSON; (II) WHERE AN AUTHORISATION UNDER SECTION 132 HAS BEEN ISSUED OR REQUISITION UNDER SECTION 132A HAS BEEN MADE MENTIONING THEREIN THE NAME OF MORE THAN ONE PERSON, THE MENTI ON OF SUCH NAMES OF MORE THAN ONE PERSON ON SUCH AUTHORIS ATION OR REQUISITION SHALL NOT BE DEEMED TO CONSTRUE THAT IT WAS ISSUED IN THE NAME OF AN ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS CONSISTING OF SUCH PERSONS. (2) NOTWITHSTANDING THAT AN AUTHORISATION UNDER SEC TION 132 HAS BEEN ISSUED OR REQUISITION UNDER SECTION 132A HAS BEEN MADE MENTIONING THEREIN THE NAME OF MORE THAN ONE P ERSON, THE ASSESSMENT OR REASSESSMENT SHALL BE MADE SEPARA TELY IN THE NAME OF EACH OF THE PERSONS MENTIONED IN SUCH AUTHORISATION OR REQUISITION.] 4 6. FROM THE ABOVE IT BECOMES CLEAR THAT IT IS NOT N ECESSARY TO ISSUE THE WARRANTS IN THE NAME OF EACH OF THE PERSON SEPARATE LY. THIS MEANS THAT SEARCH WARRANTS ISSUED IN THE JOINT NAMES IS ALSO VALID. THEREFORE, WE FIND NO MERIT IN THIS GROUND AND ACCORDINGLY THE SAME IS REJECTED. 7. AS FAR AS OTHER GROUNDS ARE CONCERNED AS CONCEDE D BY SHRI ASHWANI KUMAR GUPTA, THE ISSUES ARE IDENTICAL TO THE CASE O F MS MONICA GUPTA, THEREFORE, OUR ORDERS IN THE CASE OF MS. MONICA GUP TA V ACIT IN ITA NO. 139 TO 144/CHD/2013 WHEREIN THESE ISSUES HAVE BEEN ADJUDIC ATED ARE EQUALLY APPLICABLE TO THIS CASE ALSO. IN THOSE ORDERS, GROU ND NOS. 2 TO 7 WERE ADJUDICATED VIDE PARAS 9 TO 13 WHICH ARE AS UNDER:- 9. GROUND NO.2: BOTH THE PARTIES WERE HEARD IN DETAIL. AFTER CONSIDERING THE RIVAL SUBMISSIONS, W E ARE OF THE OPINION THAT THIS GROUND IS ONLY OF A ACADEMIC NATU RE BECAUSE LD. CIT(A) HAS ALREADY HELD THAT ASSESSMENT TO BE N ULL AND VOID WHICH HAS NOT BEEN AGITATED BY WAY OF APPEAL B Y THE REVENUE. THEREFORE, THIS GROUND OF APPEAL BEING OF ACADEMIC NATURE DOES NOT NEED ADJUDICATION. 10. GROUND NO.3: THE LD. SHRI ASHWANI GUPTA SUBMITTED THAT THAT COPY OF THE REMAND REPORT WAS NOT GIVEN T O THE ASSESSEE WHICH IS HER RIGHT. 11. ON THE OTHER HAND THE LD. DR SUBMITTED THAT COP Y OF THE REMAND REPORT HAS BEEN REPRODUCED BY THE LD. CI T(A) IN THE IMPUGNED ORDER ITSELF, THEREFORE, THERE WAS NO NEED TO SEPARATELY SUPPLY THE COPY. 12. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE AGR EE WITH THE CONTENTION OF THE LD. DR THAT COPY OF THE REMAN D REPORT HAS ALREADY BEEN REPRODUCED BY THE LD. CIT(A) IN T HE IMPUGNED ORDER WHICH WE HAVE EXTRACTED ABOVE. THE PURPOSE OF SUPPLYING THE COPY OF REMAND REPORT AT BEST CAN BE TO MAKE AWARE OF THE REMAND PROCEEDINGS TO ASSESSEE. ONCE T HE REPORT HAS BEEN REPRODUCED IN THE IMPUGNED ORDER, THEN ASS ESSEE GOT 5 TO KNOW THE CONTENTS OF THE REMAND REPORT WHICH IS IN ANY CASE IN HER FAVOUR. THEREFORE, IN OUR OPINION, THER E IS NO FURTHER NEED FOR SUPPLY OF THE REMAND REPORT. ACCOR DINGLY, THIS GROUND IS DISMISSED. 12. GROUND NO.4 : BOTH THE PARTIES WERE HEARD IN DETAIL. WE FIND NO SUBSTANCE IN THIS GROUND BECAUSE IT IS A COMMON PRACTICE WITH THE FIRST APPELLATE AUTHORITIES AS WE LL WITH THE TRIBUNALS AND THE HIGH COURTS TO PASS COMMON ORDER IN RELATION TO ONE ASSESSEE FOR VARIOUS ASSESSMENT YEA RS OR GROUP OF ASSESSEES, THEREFORE, THIS GROUND IS INFRU CTUOUS AND ACCORDINGLY DISMISSED. 13. GROUND NO. 5, 6 & 7: THESE GROUNDS ARE GENERAL AND ACADEMIC IN NATURE AND DO NOT NEED SEPARATE ADJUDIC ATION AND ACCORDINGLY THE SAME ARE DISMISSED. 8. WE HAVE FURTHER NOTED THAT DURING THE SEARCH NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND AND, THEREFORE, RETURN OF INCOME HA S BEEN ACCEPTED BY ASSESSING OFFICER BY MAKING BEST JUDGMENT ASSESSMEN T U/S 153A READ WITH SECTION 144. SINCE NO ADDITIONS HAVE BEEN MADE, THE REFORE, ALL THE ISSUES ARE OF ACADEMIC NATURE AND THAT IS ANOTHER REASON THAT DET AILED ADJUDICATION HAS NOT BEEN MADE BY US. 9. IN THE RESULT, ASSESSEES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/03/2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 11 TH MARCH, 2014 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR