UMESH KUMAR BHAWANANI, BILASPUR(CG) V. DCIT, CIRCLE-2(1), BILASPUR(CG)

ITA 16/BIL/2011

• Counselvise Citation: 1624714 RSA 2011
• Duration Of Justice: 42 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Assessment Year: misc
• Appeal Filed On: 01-01-1970
• Court: TRIBUNAL
• Department Lawyers: DARSHAN SINGH
• Assessee Lawyers: G M GUPTA
• Keywords: Gift
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BILASPUR BE NCH BILASPUR BEFORE SHRI SHAILENDRA KUMAR YADAV (J.M) & SHRI R.K.PANDA(A.M) ITA NO. 13/BLPR/2011 TO ITA NO.18/BLPR/2011 (ASSESSMENT YEAR 2001-02 & 2003-4 TO 2007-08) UMESH KUMAR BHAWANANI, BLOCK A-SHREE RAM TOWER, VYAPAR VIHAR, BILASPUR (CG) PAN: AEXPB 4413K (APPELLANT) VS. DY. COMMISSIONER OF INCOME TAX, CIR.2(1), MAHIMA COMPLEX, VYAPAR VIHAR, BILASPUR (CG) (RESPONDENT) APPELLANT BY : SHRI G.M. GUPTA RESPONDENT BY : SHRI DARSHAN SINGH DATE OF HEARING : 07/02 /2012 DATE OF PRONOUNCEMENT : 10/0 2/2012 ORDER PER SHAILENDRA KUAMAR YADAV, J.M, ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE SINGLE ORDER OF CIT(A), BILASPUR (CG) DATED 22/10/2010 FO R THE ASSESSMENT YEARS 2001-02 AND 2003-04 TO 2007-08. THE ISSUES RAISED BY THE ASSESSEE IN THESE APPEALS ARE IDENTIC AL, THEREFORE, THEY ARE DISPOSED OFF BY THIS COMMON ORDER. IN ALL THE SE APPEALS ASSESSE HAS RAISED THE PRELIMINARY ISSUE REGARDING INVOKING OF PROVISIONS OF SECTION 153C OF THE INCOME TAX ACT, 1 961. ITA NO. 13 TO 18/BLPR/2011 UMESH KUMAR BHAWANANI 2 2. THE MAIN CONTENTION OF THE ASSESSEE WAS THAT THE ADDITIONS IN QUESTIONS ARE NOT HAVING NEXUS WITH THE SEARCH M ATERIAL. SO THE ESTIMATED ADDITIONS MADE BY INVOKING THE PROVISIONS OF SECTION 153C ARE NOT JUSTIFIED. IN THIS REGARD LD. A.R SUB MITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF ITAT, BILASPUR IN THE CASE OF ANUPAM KEDIA VS. CIT (2012) 19 TTJ 54 (TRIB)(BILASPUR), WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 3. WE HAVE HEARD BOTH THE PARTIES ON THE PRELIMIN ARY ISSUE AND PERUSED THE ORDERS OF THE REVENUE SAID PARA 4. 1 IN PARTICULAR WHICH IS REPRODUCED AS UNDER: I HAVE GONE THROUGH THE ORDER OF THE AO AND SUBMISSIONS OF THE APPELLANT. THE AO HAS OBSERVED THAT THE INSTANT ASSESSEE IS SON OF SHRI PRAKASH KEDIA A ND ACTION U/S. 132 WAS TAKEN ION THE CASE OF HIS FATHE R AND CERTAIN PAPERS PERTAINING TO THE APPELLANT WERE FO UND FROM HIM. THEREFORE, ACTION U/S. 153C HAS BEEN TAK EN IN THE CASE OF THE APPELLANT. UNDISPUTEDLY, THE APPEL LANTS FATHER MIGHT HAVE RECEIVED COPIES OF ALL THE SEIZED MATERIAL IN HIS CASE AND THE APPELLANT COULD HAVE VERY WELL ASCERTAINED THE PAPERS RELATING TO HIM. THE APPELLANT HAS NOT DEMONSTRATED ANYTHING IN THIS REG ARD. THE PROVISIONS OF SECTION 153C ARE NOT AT PAR WITH ERSTWHILE PROVISIONS OF SECTION 158BD. MERE SATISF ACTION THAT SOME MATERIAL RELATES TO THE PERSON OTHER THAN THE PERSON, IN WHOSE CASE ACTION U/S.132 WAS TAKEN, IS SUFFICIENT TO INITIATE PROCEEDINGS. THE REQUIREMEN T OF SATISFACTION REGARDING UNDISCLOSED INCOME AND ITS SUBSEQUENT ASSESSMENT WITH REFERENCE ONLY TO THAT ITA NO. 13 TO 18/BLPR/2011 UMESH KUMAR BHAWANANI 3 MATERIAL IS NO MORE REQUIRED. THEREFORE, PRIMA F ACIE THERE WAS SUFFICIENT REASON FOR TAKING ACTION U/S. 153A R/W 153C. UNDER THESE CIRCUMSTANCES, THE APPELLANT S CONTENTION IS NOT ACCEPTABLE AND THIS GROUND OF APP EAL IS DISMISSED. 4. DURING THE PROCEEDINGS BEFORE US IN RESPONSE TO THE BENCH QUERIES ABOUT THE EXISTENCE OF ANY DOCUMENTS WHERE INCRIMINATING OR OTHERWISE, THE LD. D.R MENTIONED T HAT HE WOULD MERELY RELY ON THE PARA-I OF THE AO. THUS, W E PERUSED ABOVE PARA 4.1 WHICH REVEALS THAT THERE IS NO SPECI FIC DOCUMENTS RELIED UPON BY THE REVENUE FOR MAKING THE LOAN ADDITION RELATING TO GIFT AND IT IS IN ADDITION UN- RELATED TO THE SEARCH MATTERS WHICH COULD HAVE BEEN DONE IN NORMAL COURSE AS WELL. DURING THE PROCEEDINGS, THE LD. COUNSEL F ILED A DECISION OF THE PUNE BENCH IN THE CASE OF SINHGAD T ECHNICAL EDUCATION SOCIETY VS. ASSTT. CIT (2011) 57 DTR 241 (PUNE) (TRIB) IN WHICH ONE OF THE UNDERSIGNED ARE THE PART Y. FOR THE PROPOSITION THAT WHERE NO ASSESSMENT YEAR SPECIFIC INCRIMINATING MATERIAL OR DOCUMENT IS FOUN D, ASSESSMENTS OF SUCH ASSESSMENT YEARS CANNOT BE DISTURBED BY INVOKING THE PROVISIONS OF SEC. 153C, IN THE ABSENCE OF ANY REFERENCE TO ANY ASSESSMENT YEAR SPE CIFIC INCRIMINATING INFORMATION OR DOCUMENT RELATABLE TO THE ASSESSEE FOR THE ASSESSMENT YEARS IN QUESTION IN TH E REASONS RECORDED BY THE AO, IMPUGNED ASSESSMENT UND ER SECTION 153C IS BAD IN LAW 5. CONSIDERING THE ABOVE FACTS AS WELL AS THE LEGAL PROPOSITIONS IN FORCE, WE ARE OF THE OPINION THAT THE ASSESSING OFFICER INVALIDLY ASSUMED JURISDICTION IN ISSUING THE NOTIC E U/S. 153C OF THE ACT. IN THE ABSENCE OF THE FAILURE OF THE REVENUE TO FILE THE SEIZED OR INCRIMINATING PAPERS SPECIFIC TO THE ASSESSMENT YEAR UNDER CONSIDERATION AND BELONGING TO THE ASSES SEE, IN OUR OPINION, THIS IS A CASE WHERE THERE ARE NO SEIZED PAPERS BELONGING TO THE ASSESSEE, WHICH ARE INCRIMINATING IN NATURE AND WHICH ARE SPECIFIC TO THE ASSESSMENT YEAR UNDER CONSIDERATION, ARE NOT IN EXISTENCE. IN SUCH CIRCU MSTANCES, ITA NO. 13 TO 18/BLPR/2011 UMESH KUMAR BHAWANANI 4 THE ASSESSING OFFICER SHALL NOT ASSUME JURISDICTION U/S. 153C OF THE ACT. ACCORDINGLY, THE LEGAL GROUND RAISED B Y THE ASSESSEE IS ALLOWED. CONSEQUENTLY OTHER GROUNDS RE LATING MERITS OF ADDITION ON THEIR ADJUDICATION REMAINS TO BE AN ACADEMIC EXERCISE. THEREFORE, RESTS OF THE GROUNDS ARE DISMISSED AS ON ACADEMIC EXERCISE. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE. THE RE IS NOTHING ON RECORD THAT ADDITIONS ARE HAVING GENESIS IN SE ARCH MATERIAL FOUND DURING THE COURSE OF SEARCH. THE FACTS BEING SIMILAR FOLLOWING THE SAME REASONING WE SET ASIDE THE ORDER OF CIT(A ) BY HOLDING THAT AO WAS NOT JUSTIFIED IN INVOKING PROVISIONS OF SECT ION 153C OF THE ACT BECAUSE THE ADDITION WAS NOT MADE ON THE BASIS OF SEARCH MATERIAL FOUND DURING THE COURSE OF SEARCH. ACCORD INGLY THE ORDERS OF CIT(A) ARE SET ASIDE. 3. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 0 TH DAY OF FEB. 2012. SD/- SD/- (R.K.PANDA) (SHAI LENDRA KUMAR YADAV)) ACCOUNTANT MEMBER JUDICIA L MEMBER BILASPUR, DATED. 10 TH FEB. 2012 ITA NO. 13 TO 18/BLPR/2011 UMESH KUMAR BHAWANANI 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4.THE CIT(A)- CONCERNED 5. THE D.R BI LASPUR BENCH. (TRUE COPY) BY ORDER SR. PRIVATE SECRETARY, ITAT, BILASPUR BENC H BILASPUR VM. ITA NO. 13 TO 18/BLPR/2011 UMESH KUMAR BHAWANANI 6 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 7/2/2012 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 8/2/2012 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER