Manju Devi Agarwal, Guwahati V. Assistant Commissioner of Income Tax, Circle-4, Guwahati

ITA 156/GTY/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8663 (ITAT-GUWAHATI)
• Duration Of Justice: 6 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M HOAKIP J
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 155 - 158 / GAU / 2013 ASSESSMENT YEARS :2007-08 TO 2010-11 MANJU DEVI AGARWAL FLAT NO.502, SEWDA BHABAN, K.C. CHOUDHURY ROAD, CHATRIBARI, GUWAHATI-781008 [ PAN NO.ADLPA 5327 J ] V/S . ACIT, CIRCLE-4, AAYAKAR BHAWAN, G,.S. ROAD, CHRISTIAN BASTI, GUWAHATI- 781005 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SOMNATH GHOSH, ADVOCATE /BY RESPONDENT SHRI M. HOAKIP, JCIT-DR /DATE OF HEARING 09-07-2019 /DATE OF PRONOUNCEMENT 12-07-2019 / O R D E R PER BENCH:- THESE FOUR ASSESSEES APPEAL(S) FOR ASSESSMENT YEA R(S) 2007-08 TO 2010-11 ARISE AGAINST THE COMMISSIONER OF INCOME TA X (APPEALS)-GUWAHATIS COMMON ORDER ALL DATED 18.12.2012 PASSED IN CASE NO .S GUWA, 205, 251, 256 & 246/2011-12, INVOLVING PROCEEDINGS U/S 143(3) R.W .S. 153C OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES RAISING VARIOUS LEGAL AS WEL L AS TECHNICAL ARGUMENTS. CASE FILE(S) PERUSED. ITA NO.155-158/GAU/2013 A.YS. 07-08 T O 10-11 MANJU DEVI AGARWAL VS. ACIT, CIR-5 GUWA PAGE 2 2. WE NOTICE AT THE OUTSET THAT THE ASSESSEE IS FIR ST IDENTICAL ARGUMENT IN ALL THESE CASES THAT THE IMPUGNED PROCEEDINGS HAVE NOT BEEN VALIDLY INITIATED IN ALL OF HER CASES. SHE QUOTES 153C OF THE ACT IS THAT THE ASSESSING OFFICER OUGHT TO HAVE RECORDED A VALID SATISFACTION BEFORE SETTING INTO MOTION THE RELEVANT PROCEEDINGS. WE FIND THAT EARLIER CO-ORDIN ATE BENCH HAD DIRECTED THE DEPARTMENT TO PLACE ON RECORD THE CORRESPONDING SAT ISFACTION. MR. HAOKIP HAS TAKEN A LOT OF PAINS TO PRODUCE THE RELEVANT RECORD S BEFORE US INDICATING THE SATISFACTION RECORDED IN THE ASSESSEES CASE DATED 21.06.2011. 3. WE NOW COME TO THE BASIC RELEVANT FACTS. IT IS N OT IN DISPUTE THE DEPARTMENT HAS CARRIED OUT THE SEARCH IN QUESTION A T 19.11.2009 IN CASE OF PODDAR GROUP, SHRI ANUP PODDAR AND SHRI SUDHIR AGAR WAL (ASSESSEES HUSBAND). HER RESIDENTIAL PREMISES FORMED SUBJECT-M ATTER. THE AUTHORIZED OFFICER APPEARS TO HAVE COME ACROSS VARIOUS POSTAL PASS BOOK(S) IN THE NAMES OF EMPLOYEES OF HIS FORMER TWO ASSESSEES. IT IS THI S MATERIAL THAT HAS BEEN TAKEN TO BE BELONGING TO THE ASSESSEE FOR THE PURPOSE OF INITIATING THE IMPUGNED SATISFACTION U/S 153C OF THE ACT. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE FIRST MOOT QUESTION BEFORE US AS TO WHETHER POSTAL PASS BOOKS IN ISSUE (SUPRA) COULD BE TREATED TO BE BELONGING TO THE ASSESSEE OR NOT FOR THE PURPOSE OF RECORDING A VALID SATISFACTION U/S 153C OF THE ACT. WE MAKE IT CLEAR THAT WE ARE DEALING WITH A SATISFACTION DATED 21.06.2011 REQUI RING THE RELEVANT CATEGORY OF ASSET TO BE BELONGING TO THE TAXPAYER THAN MERELY PERTAINING OR RELATING STOOD INTRODUCED SUBSEQUENTLY VIDE THE FINANCE ACT, 2015 CONTAINING SEC. 153C(1)(B) APPLICABLE WITH EFFECT FROM 01.06.2015. WE PROCEED IN THIS FACTUAL BACKDROP TO NOTICE THAT THE SAID DOCUMENTS NOWHERE CONTAINED EVEN THE ASSESSEES NAME MUCH LESS THAN BELONGING TO HER ARE TAKEN AS TO DEMAND BELONGING TO HER. THIS QUESTION CAME UP BEFORE WHER EIN IT WAS HELD THAT THIS BELONGING HAS TO BE TREATED AS HAVING OWNERSHIP OF SIZED MA TERIAL. VARIOUS JUDICIAL PRECEDENTS CWT VS. BOSHWANATH CHATTERJEE 1 03 ITR 531, LATE ITA NO.155-158/GAU/2013 A.YS. 07-08 T O 10-11 MANJU DEVI AGARWAL VS. ACIT, CIR-5 GUWA PAGE 3 NAWAB SRI MIR OSMAN ALI KHAN (1986) 162 ITR 888, SB (HOUSE & LAND) PVT. LTD. VS. CIT (1979) 119 ITR 786, ADDL. CIT VS. SAHA Y PROPERTIES & INVESTMENT PVT. LTD. (11983) 144 ITR 357 (PAT) HOLD THAT THIS CLINCHING EXPRESSION OF BELONGS TO IMPLIES OWNERSHIP OF AN ASSESSEE WHICH IS NOWH ERE THE REVENUE BEFORE US. 5. NEXT ARGUMENT RAISED AT REVENUES BEHEST IS THAT THE ASSESSEE ADMITTED BEFORE THE DDIT(INV) THAT SHE HAD DERIVED COMMISSION INCOME EARNED AS A POSTAL AGENT. IT EMERGES FROM THE CASE RECORD(S) THAT THE CORRESPONDING COMMISSION INCOME ALREADY STOOD DISCL OSED IN THE REGULAR BOOKS OF ACCOUNTS. COUPLE WITH THIS, WE WISH TO EMP HASIZE THAT THE CBDTS DATED 10.03.2003 REITERATED ON 18.12.2014 MAKES IT CLEAR THAT SUCH AN ADMISSION IN ABSENCE OF ANY COGENT EVIDENCE DOES NO T CARRY ANY SIGNIFICANCE. IT HAS ALREADY COME ON RECORD THAT THE RELEVANT POS TAL PASS-BOOKS DID NOT BELONG TO THE ASSESSEE. WE THUS DECLINE THE REVENUE S SECOND ARGUMENTS AS WELL. 6. LASTLY COMES YET ANOTHER EQUALLY IMPORTANT ASPEC T REGARDING VALIDITY OF IMPUGNED PROCEEDINGS. THERE IS NO DISPUTE THAT THIS ASSESSEE AS WELL AS THE SEARCHED ASSESSEE HER HUSBAND (SUPRA) ARE ASSESSED BY THE SAME ASSESSING OFFICER. WE NOTICE IN THIS BACKDROP THAT THE ASSESS ING OFFICER NOWHERE RECORDED A SEPARATE SATISFACTION IN THE SAID THAT T HE SEIZED MATERIAL DID NOT BELONG TO HIM BUT TO THIS TAXPAYER FOLLOWED BY A SI MILAR CORRESPONDING SATISFACTION IN HER CASE. MR. HAOKIP AT THIS STAGE INVITES OUR ATTENTION TO THE ASSESSING OFFICERS SATISFACTION IN CASE OF ASSESSE ES HUSBAND DATED 15.12.2011. WE FIND THAT THE ASSESSING OFFICERS SA ID SATISFACTION TO THIS EFFECT MERELY HOLDS THAT THE CORRESPONDING INCREMENT DOCUM ENTS SEIZED FROM THE SEARCHED PREMISES RELATE TO THE ASSESSEE WHEREAS BANK PASS BOOKS BELONGED TO HER CLIENTS. WE CONCLUDE IN VIEW OF THE SE CLINCHING FACTS THAT THIS CRUCIAL SATISFACTION FORMING FOUNDATION OF THE REVE NUES ARGUMENT DOES NOT FULFILL THE SAID LEGAL CRITERIA. WE FURTHER QUOTE H ONBLE GUJARAT HIGH COURTS ITA NO.155-158/GAU/2013 A.YS. 07-08 T O 10-11 MANJU DEVI AGARWAL VS. ACIT, CIR-5 GUWA PAGE 4 DECISION IN CIT VS. LALIT KUMAR M PATEL (2014) 222 TAXMANN.96 (GUJ) DEALT WITH A SIMILAR SEC. 158BD SATISFACTION IS ON INSTAN CE OF THE SAME. ASSESSING OFFICER CONCLUDE THAT THE FOREGOING TWIN SATISFACTI ON PRINCIPLE QUITE WELL APPLIES FOR THE ASSESSEES CASE IF THEY ARE ASSESSED IN HIS SAME ASSESSING AUTHORITYS JURISDICTION. WE TAKE INTO ACCOUNT ALL THESE FOREGO ING LEGAL POSITION TO CONCLUDE THAT THE LEARNED LOWER AUTHORITIES HAVES ERRED IN I NITIATING SEC. 153C PROCEEDINGS IN ABSENCE OF A VALID SATISFACTION. THE SE ASSESSMENTS ARE ACCORDINGLY QUASHED. THE ASSESSEES OTHER GROUNDS O N MERITS ARE RENDERED INFRUCTUOUS. 7. THIS ASSESSEES FOUR APPEAL(S) ARE ALLOWED IN AB OVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 1 2/07/2019 SD/- SD/- ( ) (&' ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP (- 12 / 07 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-MANJU DEVI AGARWA, FLAT NO. 502, SEWDA BH ABAN, K.C.CHOUDHURY ROAD, CHATRIBARI, GUWAHATI-0781008 2. /REVENUE-ACIT, CIR-4, AAYKAR BHAWAN, G.S. ROAD, CHR ISTIAN BASTI, GUWAHATI-005 3. 3 4 9 / CONCERNED CIT GUWAHATI 4. 4- / CIT (A) GUWAHATI 5. < ''3, 3, 9 / DR, ITAT, GUWAHATI 6. B / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) 3,