ACIT CENTRAL CIRCLE 2 (2), CHENNAI V. M/S RPD EARTH MOVERS P LTD, CHENNAI

ITA 1606/CHNY/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9731 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A; 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1606/CHNY/2018 ( )( / ASSESSMENT YEAR :2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S RPD EARTH MOVERS PVT. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AADCR 6604 B (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NO.1607/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S ANU PLOT & HOUSING P. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AAGCA 9006 R (+,/ APPELLANT) (-.+,/ RESPONDENT) 2 I.T.A. NOS.1606 TO 1612/CHNY/18 ./ ITA NO.1608/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S VYSA PLOT & HOUSING P. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AACCV 6776 H (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NO.1609/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S ACHARYA HOMES AND ESTATES PVT. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AAHCA 8990 M (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NO.1610/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S SANGUPATHI PROPERTIES PVT. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AALCS 4094 A (+,/ APPELLANT) (-.+,/ RESPONDENT) 3 I.T.A. NOS.1606 TO 1612/CHNY/18 ./ ITA NO.1611/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S SSD HOMES AND ESTATES DEVELOPERS PVT. LTD., NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AALCS 1774 R (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NO.1612/CHNY/2018 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), CHENNAI - 600 034. V. M/S GANAM HOMES AND ESTATES PVT. LTD. NO.1379, GOLDEN VILLA, 1 ST BLOCK, 6 TH STREET, 18 TH MAIN ROAD, VALLALARKUDIYERUPPU, ANNA NAGAR WEST, CHENNAI - 600 040. PAN : AADCG 5334 P (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SMT. RUBY GEORGE, CIT -.+, / 0 / RESPONDENTS BY : SHRI K.M. MOHANDASS, CA 1 / 2% / DATE OF HEARING : 01.11.2018 3') / 2% / DATE OF PRONOUNCEMENT : 03.12.2018 4 I.T.A. NOS.1606 TO 1612/CHNY/18 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : ALL THE APPEALS OF THE REVENUE IN RESPECT OF INDE PENDENT ASSESSEES ARE DIRECTED AGAINST THE RESPECTIVE ORDER S OF THE COMMISSIONER OF INCOME TAX (APPEALS) -18, CHENNAI, DATED 23.02.2018 PERTAINING TO ASSESSMENT YEAR 2011-12. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THESE APPEALS , WE HEARD THESE APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESENT ATIVE, SUBMITTED THAT THERE WAS A SEARCH IN THE PREMISES O F THE ASSESSEES ON 03.09.2013. ACCORDING TO THE LD. D.R., IT WAS F OUND DURING THE COURSE OF SEARCH OPERATION THAT THE ASSESSEES HAVE RECEIVED ADVANCES IN CASH DURING THE FINANCIAL YEAR 2010-11 RELEVANT TO ASSESSMENT YEAR 2011-12. SINCE NO EXPLANATION WAS OFFERED BY THE ASSESSEES, ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER TREATED THE ADVANCES AS INCOME OF THE ASSESSEE DURING THE Y EAR UNDER CONSIDERATION. SINCE THE ASSESSEES COULD NOT PRODU CE ANY SUBSTANTIAL EVIDENCE, THE ASSESSING OFFICER ASSESSE D THE ADVANCES AS INCOME OF THE ASSESSEE. HOWEVER, ON APPEAL BY T HE ASSESSEES, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) DELETED THE ADDITION ON 5 I.T.A. NOS.1606 TO 1612/CHNY/18 THE GROUND THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATION. IN FACT, ACCORDING TO THE LD. D.R., INCRIMINATING MATERIAL IN THE FORM OF AUDITED TALLY STATEMENT WAS FOUND, THEREFORE, THE CIT(APPEALS) IS NOT CORRECT I N SAYING THAT NO INCRIMINATING MATERIAL WAS FOUND. HENCE, ACCORDING TO THE LD. D.R.,THE DECISION OF SPECIAL BENCH OF THIS TRIBUNAL IN ALL CARGO GLOBAL LOGISTICS LTD. V. DCIT (2012) 137 ITD 287 AN D THE JUDGMENT OF KARNATAKA HIGH COURT IN PRINCIPAL CIT V. SMT. LA KSHMI SINGH (2017) 78 TAXMANN.COM 207 MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. 3. ON THE CONTRARY, SHRI K.M. MOHANDASS, THE LD. REPRESENTATIVE FOR THE ASSESSEES, SUBMITTED THAT FO R THE ASSESSMENT YEAR 2011-12, THE ASSESSEE IN I.T.A. NO.1606/CHNY/2 018 FILED ITS RETURN OF INCOME ON 31.03.2012, THE ASSESSEES IN I. T.A. NO.1607, 1608, 1609, 1610 AND 1612/CHNY/2018 FILED THEIR RET URN OF INCOME ON 30.09.2011 AND THE ASSESSEE IN I.T.A. NO.1611/CH NY/2018 FILED THE RETURN OF INCOME ON 31.03.2012. IN ALL CASES, ACCORDING TO THE LD. REPRESENTATIVE, THE SEARCH TOOK PLACE ON 03.09. 2013. THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) OF TH E ACT WAS 31.03.2012. ADMITTEDLY, THE SEARCH TOOK PLACE ON 0 3.09.2013. 6 I.T.A. NOS.1606 TO 1612/CHNY/18 THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSMENT PROCEEDING INITIATED AFTER FILING THE RETURN OF INC OME ON REGULAR COURSE BEFORE THE DATE OF SEARCH, CULMINATED BY OPE RATION OF LAW ON 31.03.2012. HENCE, ON THE DATE OF SEARCH, I.E. ON 03.09.2013, NO ASSESSMENT PROCEEDING WAS PENDING BEFORE THE ASSESS ING OFFICER. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THE PENDING ASSESSMENT PROCEEDING OR THE ASSESSMENT PROCEEDING WHICH WAS CULMINATED OR TERMINATED BY OPERATION OF LAW CANNOT BE REOPENED BY THE ASSESSING OFFICER. ACCORDING TO THE LD. REPRES ENTATIVE, THE ASSESSING OFFICER IS EXPECTED TO COMPLETE THE ASSES SMENT ONLY ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SE ARCH OPERATION. IN THIS CASE, THE ASSESSING OFFICER CLAIMS THAT ON THE BASIS OF AUDITED TALLY STATEMENT, HE CAME TO KNOW THAT THE A SSESSEES RECEIVED ADVANCES. ACCORDING TO THE LD. REPRESENTA TIVE, THE VERY SAME TALLY ACCOUNTED STATEMENTS WERE FILED BEFORE T HE ASSESSING OFFICER IN THE RETURN OF INCOME. REFERRING TO THE ORDER OF THE CIT(APPEALS), MORE PARTICULARLY PARA 10.5, THE LD. REPRESENTATIVE SUBMITTED THAT THE VERY SAME AUDITED STATEMENTS WER E AVAILABLE BEFORE THE ASSESSING OFFICER ALONG WITH THE RETURN OF INCOME FILED ORIGINALLY. THE RETURNS IN RESPECT OF ALL THE ASSE SSEES WERE PROCESSED UNDER SECTION 143(1) OF THE ACT. THEREFO RE, ACCORDING TO 7 I.T.A. NOS.1606 TO 1612/CHNY/18 THE LD. REPRESENTATIVE, WHAT WAS CLAIMED TO BE FOUN D DURING THE COURSE OF SEARCH OPERATION IS NOT A NEW MATERIAL BU T IT WAS ALREADY AVAILABLE BEFORE THE ASSESSING OFFICER. HENCE, THA T CANNOT BE CONSTRUED TO BE A SEIZED MATERIAL FOR THE PURPOSE O F MAKING EITHER ASSESSMENT OR REASSESSMENT. IN THE ABSENCE OF ANY NEW MATERIAL, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSING OFFICER CANNOT REOPEN THE ASSESSMENT WHICH WAS ALREADY CONCLUDED, THEREFORE, THE CIT(APPEALS) HAS RIGHTLY FOUND THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THERE CANNOT BE ANY ASSESSM ENT UNDER SECTION 153A / 153C OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT ALL THE ASSESSEES HAVE FLED THE RETURN OF INCOME IN THE REGULAR COURSE BEFORE THE DATE OF SEARCH WHICH TOOK PLACE ON 03.09.2013. THE TIME LIMIT FOR ISSUING NOTICE, ON THE BASIS OF THE RETURN OF INCOME FILED BEFORE THE SEARCH, EXPIRED W ELL BEFORE THE DATE OF SEARCH. THE ASSESSING OFFICER ALSO PROCESS ED THE RETURN UNDER SECTION 143(1) OF THE ACT AND ISSUED INTIMATI ON BEFORE THE DATE OF SEARCH. THEREFORE, ADMITTEDLY, NO ASSESSME NT PROCEEDING WAS PENDING ON THE DATE OF SEARCH ON 03.09.2013. I N OTHER WORDS, 8 I.T.A. NOS.1606 TO 1612/CHNY/18 THE ASSESSMENT PROCEEDING ON THE BASIS OF RETURN AL READY FILED TERMINATED / CULMINATED BY OPERATION OF LAW. THERE FORE, NO ASSESSMENT PROCEEDING WAS PENDING ON THE DATE OF SE ARCH, HENCE, THE CONCLUDED ASSESSMENT OR THE ASSESSMENT WHICH WA S TERMINATED BY OPERATION OF LAW CANNOT BE REOPENED BY THE ASSES SING OFFICER. 5. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 153A AND 153C OF THE ACT. WHEN THE ASSESSMENT WAS CONCLUDED EITHER BY ORDER UNDER SECTION 143(3) OF THE ACT OR OTHERWISE BY OPERATION OF LAW CANNOT BE REOPENED. THE REASSESSM ENT OR THE ASSESSMENT HAS TO BE MADE UNDER SECTION 153A / 153C OF THE ACT ONLY ON THE BASIS OF THE INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH OPERATION. IN THIS CASE, THE REVE NUE CLAIMS THAT AUDITED STATEMENT IN THE FORM OF TALLY ACCOUNTS WAS SAID TO BE FOUND DURING THE COURSE OF SEARCH OPERATION. IT IS NOT I N DISPUTE THAT THE VERY SAME DOCUMENT WAS ALREADY AVAILABLE BEFORE THE ASSESSING OFFICER ALONG WITH THE RETURN OF INCOME. THEREFORE , AT ANY STRETCH OF IMAGINATION, IT CANNOT BE SAID THAT THE AUDITED STA TEMENT IN THE FORM OF TALLY ACCOUNTS IS AN INCRIMINATING MATERIAL FOUN D DURING SEARCH AS CLAIMED BY THE REVENUE. IN THE ABSENCE OF ANY INCR IMINATING MATERIAL, THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THERE CANNOT 9 I.T.A. NOS.1606 TO 1612/CHNY/18 BE ANY ASSESSMENT UNDER SECTION 153A / 153C OF THE ACT AS FOUND BY THE CIT(APPEALS). THIS VIEW OF OURS IS FORTIFIE D BY THE JUDGMENT OF APEX COURT IN PRINCIPAL CIT V. MEETA GUTGUTIA (2 016) 385 ITR 624. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REAS ON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY TH E SAME IS CONFIRMED. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 3 RD DECEMBER, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESA N) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 3 RD DECEMBER, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-18, CHENNAI 4. PRINCIPAL CIT, CENTRAL-2, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.