DCIT- CC 6 (4), MUMBAI V. SHRI SAMEER GEHLAUT, MUMBAI

ITA 1431/MUM/2022

AI Insights

The case involves an appeal by the Deputy Commissioner of Income Tax against the order of the Ld.CIT(A)-54, Mumbai, which had deleted the additions made by the Assessing Officer (AO) under sections 143(3) and 153A of the Income Tax Act, 1961. The additions were related to the disallowance of a deduction under section 54 amounting to Rs. 14,32,11,726. The primary legal contention was whether the assessment for AY 2013-14, which was not pending before the AO at the time of the search on 13th July 2016, could be altered without incriminating material, citing the second proviso to section 153A. The Tribunal noted that similar issues had been addressed in the case of the assessee's wife, leading to a dismissal of the Revenue's appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125748 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 15-11-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 26-05-2022
• Other Referred Cases: Continental Warehousing Corporation (Nhava Sheva) Limited vs. Deputy Commissioner of Income Tax, CIT vs Singhad Technical Education society
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 54; 143(3); 153A; 64; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM AND SHRI GAGAN GOYAL, AM आयकरअपीलसं/ I.T.A. No.1431/Mum/2022 (निर्धारणवर्ा / Assessment Year: 2013-14) Deputy Commissioner of Income Tax, Central Circle 6(4) Room No. 1925, 19 th Floor, Air India Building, Nariman Point, Mumbai-400021 बिधम/ Vs. Shri Sameer Gehlaut 17 th floor, Tower 1, Indiabulls Finance Centre, Senepati Bapat Marg, Elphinstone Road, Mumbai-400013 स्थधयीलेखधसं./जीआइआरसं./PAN/GIR No. : AFMPG9469E (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाईकीतारीख / Date of Hearing: 16/11/2022 घोषणाकीतारीख /Date of Pronouncement: 13/01/2023 आदेश / O R D E R PER ABY T. VARKEY, JM: This appeal preferred by the Revenue against order of the Ld.CIT(A)-54, Mumbai dated 21-10-2021 for A.Y. 2013-14. 2. The grounds of appeal raised by the Revenue are as under:- 1. “Whether, on the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in holding that the additions/disallowances made in the assessment order is not sustainable as they are without reference to any incriminating material found during the search, without appreciating that the department has filed an SLP against the decision of the Hon’ble High Court of Bombay in the case of Continental Warehousing Corporation (Nhava Sheva) Limited reported in 374 ITR 654 (Bom), which has been admitted and directed to be listed by the Hon’ble Supreme Court of India, vide order dated 12.10.2015 reported in (2015) 64 taxmann.com 34 (SC)?’ Assessee by: Shri K.Gopal Revenue by: Smt Riddhi Mishra (CIT DR) ITA NO. 1431/MUM/2022 AY 2013-14 Shri Sameer Gehlaut 2 2. “Whether, on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the long term capital gain of Rs. 14,32,11,726/- without appreciating the fact that the assessee’s claim of deduction u/s 54 of the income tax Act 1961, is not tenable as per the facts stated in the assessment order.” 3. At the outset, the Ld.AR brought to our notice that the issue raised by Revenue before us is no longer res-integra. According to the Ld.AR, this Tribunal has already decided the case of the assessee’s wife Smt. Divya Sameer Gehlaut for the same AY 2013-14. According to the Ld.AR, the aforesaid grounds of appeal raised by the Revenue is also the similar/identical. And for buttressing this contention, he drew our attention to the this Tribunals order in the case of the assessee’s wife dated 31.10.2022 in ITA No. 1428/Mum/2022 (AY 2013-14) wherein this Tribunal has reproduced the grounds of appeal raised by the assessee which we find it to be identical to that of the assessee’s wife. Since, the grounds of appeal and facts are the similar according to the Ld.AR, impugned order of the Ld.CIT(A) need to be confirmed and Revenue appeal dismissed. This assertion of Ld AR could not be contradicted by Ld DR appearing for Revenue. Therefore, after going through the records, we find that the issue are identical in the case assesse’s wife (supra) and there is no change in facts or law except there is difference in figures of the long term capital gain. Since, there is any change any facts or law we are bound follow the decision of the co-ordinate bench in the case of assessee’s wife. 4. Brief facts is that the assessee has filed original return of income on 31.07.2013 declaring total income of Rs. 13,18,49,140/- the same was revised on the 30.03.2015 declaring total income at Rs. 13,18,49,140/-. Later the case of assessee was selected for complete scrutiny and thereafter the AO was pleased to ITA NO. 1431/MUM/2022 AY 2013-14 Shri Sameer Gehlaut 3 accept the return income of the assessee by framing the assessment order u/s 143(3) of the Act on 21.03.2016. Thereafter search action was carried out the case of M/s. India Bulls Group on 13 th July, 2016 and consequently notice u/s 153C dated 30.10.2017 was issued to the assessee; and in response the assessee, reiterated his return of income which was filed earlier on 08.01.2018 declaring total income at Rs. 13,18,49,140/-. Later on the AO has passed the order u/s 153A/143(3) of the Act making addition by disallowing the deduction u/s 54 of the Act amounting to Rs.14,32,11,726/-.The main grievance of the assessee before the Ld.CIT(A) was that since the assessment for AY 2013-14 has been framed after scrutiny u/s 143(3) of the Act on 21.03.2016, and the search has been carried out in the case of M/s. India Bulls Group on 13 th July, 2016, the assessment pertaining to AY 2013-14 of assessee was not pending before the AO on 13 th July 2016 and therefore as per the second proviso to section 153A of the Act, the assessment for AY 2013-14 was not pending before AO and therefore it is a non-abated assessment. Therefore, according to the assessee, no addition/disallowance could have been made by the AO without the aid of incriminating materials found during search and cited the decision of the Hon’ble Bombay High Court in the case of M/s. Continental Warehouse Corporation Ltd reported in 374 ITR 64 (Mumbai) as well as the Hon’ble Supreme Court decision in the case of CIT vs Singhad Technical education society (Civil appeal no. 11080 of 2017). The Ld.CIT(A) after hearing the assessee and taking note of the facts of the case of assessee held that relevant assessment year being is AY 2013-14 was not pending before AO on the date of search and so, was a non-abated assessment year; therefore, the contention of the assessee that AO could not have made any addition without aid of incriminating materials was upheld and deleted the addition made by AO. We find that the Ld.CIT(A) has rightly decided the legal issue raised by the assessee ITA NO. 1431/MUM/2022 AY 2013-14 Shri Sameer Gehlaut 4 because we find that the assessment of the assessee for AY 2013-14 was not pending before the AO on the date of search. Therefore, as per the second proviso to section 153A of the Act, it is non-abated assessment. Therefore as per the Hon’ble Supreme Court decision in the case of CIT vs Singhad Technical Education society (supra) the Ld.CIT(A) rightly held that the AO could not have made any addition without aid of incriminating materials found during search qua assessee qua AY 2013-14. We further note that AO has not stated anything about any incriminating material found during search qua assessee qua AY 2013-14 while disallowing the claim of the assessee u/s153C of the Act.Therefore we uphold the impugned action of the Ld.CIT(A). We also take note that this Tribunal in the case of assessee’s wife (supra) has upheld the similar action of the Ld.CIT(A) in similar facts and circumstance the case as noted supra (Smt. Divya Sameer Gehluat).Therefore we do not find any mistake in the order of the Ld.CIT(A) and therefore we dismiss the appeal of the Revenue. 5. In the result, appeal of the Revenue is stands dismissed. Order pronounced in the open court on this 13/01/2023. Sd/- Sd/- (GAGAN GOYAL) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुंबई Mumbai; दिनांकDated : 13/01/2023. Shubham Lohar, ITA NO. 1431/MUM/2022 AY 2013-14 Shri Sameer Gehlaut 5 आदेशकीप्रनिनलनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलार्थी/ The Appellant 2. प्रत्यर्थी/ The Respondent. 3. आयकरआयुक्त(अपील) / The CIT(A)- 4. आयकरआयुक्त/ CIT 5. दवभागीयप्रदतदनदि, आयकरअपीलीयअदिकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपतप्रदत //True Copy// उि/सहधयकिंजीकधर /(Dy./Asstt.Registrar) आयकरअिीलीयअनर्करण, मुंबई / ITAT, Mumbai