M/s. Ganesh Grains Limited (Formerly Ganesh Wheat Products Pvt. Ltd.), Kolkata V. DCIT, Central Circle - V, Kolkata, Kolkata

ITA 176/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3071 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2012
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Assessee Lawyers: S K TULSIYAN
• Keywords: Income from undisclosed sources; Search and seizure
• Section: 143(3); 153A; 234B; 15

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE . . . . . . . . , !' /AND #! $'# , ) [BEFORE SHRI K. K. GUPTA, AM & SHRI MAHAVIR SINGH, JM] '% '% '% '% / I.T.A NO. 176/KOL/2012 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR: 200 4- 0 5 M/S. GANESH GRAINS LIMITED VS. DEPUTY COMMISSIO NER OF INCOME-TAX, (PAN:AABCG8539N) CENTRAL CIRCLE-V, KOLKATA (+, /APPELLANT ) (-.+,/ RESPONDENT ) DATE OF HEARING: 17.04.2013 DATE OF PRONOUNCEMENT: 19.04.2013 FOR THE APPELLANT: SHRI S. K. TULSIYAN, ADVO CATE FOR THE RESPONDENT: SHRI A. K. MOHAPATRA, CIT(DR) / / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), CENTRAL-1, KOLKATA IN APPEAL NO. 01/CIT(A),C-1/CC-V/10-11 DATED 14.11.2011. RE-A SSESSMENT WAS FRAMED BY DCIT, CENTRAL CIRCLE-V, KOLKATA U/S. 153A/143(3) OF THE I NCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2004-05 VIDE HIS ORDER DATED 31.12.2009. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST REASSESSMENT FRAMED U/S. 153A/143(3) OF THE ACT DATED 31.12.2009. FOR THIS, ASSESSEE HAS RAISED FOLLOWING THREE GROUNDS: 1. THE ORDERS PASSED BY THE LOWER AUTHORITIES ARE ARBITRARY, ERRONEOUS, WITHOUT PROPER REASONS, INVALID AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED A.O. ERRED IN MAKING AN ILLEGAL ASSESSMENT U/S 153A/143(3) OF THE INCOME TAX ACT, 1961, ON 31.12.2009, WITHOUT USING ANY MATERIAL FOUND OUT DURING THE SEA RCH AND THE CIT(A) ERRED IN CONFIRMING THE SAME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN MAKING A DUPLI CATE ASSESSMENT U/S 153A/143(3) OF THE INCOME TAX ACT, 1961, ON 31.12.2009 AT THE SAME FIGURE OF TOTAL INCOME OF RS.18,30,597/- AS ASSESSED IN THE ORIGINAL ASSESSME NT U/S 143(3) OF THE ACT, DT.28.12.2006, AND IN CREATING A DUPLICATE DEMAND O F THE SAME AMOUNT THEREBY, WHEN THE ORIGINAL ASSESSMENT ALREADY STOOD COMPLETED AND THE APPEAL AGAINST THE SAID ASSESSMENT WAS PENDING BEFORE THE APPELLATE AUTHORI TY. 2 ITA NO.176/K/2012 GANESH GRAINS LTD. AY : 2004-05 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT FOR THE RELEVANT ASSESSMENT YEAR 2004-05 THE ASSESSEE FILED ITS RETURN OF INCOME ORIGINALLY ON 14.11.2004 DECLARING TOTAL INCOME AT RS.5,56,010/- AND FINALLY ASSESSMENT WAS FRAMED U/S . 143(3) OF THE ACT DATED 28.12.2006 AT A TOTAL INCOME OF RS.18,30,597/-. SUBSEQUENTLY, SEAR CH WAS CONDUCTED ON THE PREMISES OF THE ASSESSEE COMPANY ON 04.10.2007 AND IN CONSEQUENCE T O THE SAME, A NOTICE U/S. 153A OF THE ACT WAS ISSUED. IN RESPONSE TO THE SAID NOTICE, ASSESS EE COMPANY FILED RETURN OF INCOME ADMITTING TOTAL INCOME, AS ORIGINALLY RETURNED, AT RS.5,56,09 0/-. THE AO COMPLETED REASSESSMENT U/S. 153A R.W.S. 143(3) OF THE ACT ON 31.12.2009 THEREBY REPEATING THE SAME FIGURES AS ASSESSED ORIGINALLY U/S. 143(3) OF THE ACT DATED 28.12.2006 AT A FIGURE OF RS.18,30,597/-. THAT MEANS THERE WAS NO FRESH ADDITION/DISALLOWANCE ON THE BAS IS OF SEARCH. AGGRIEVED AGAINST THE ASSESSMENT FRAMED U/S. 153A/143(3) OF THE ACT DATED 31.12.2009, ASSESSEE CHALLENGED THE SAME BEFORE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AS INFRUCTUOUS. AGGRIEVED NOW, ASSESSEE RAISED THE ABOVE ISSUE. 4. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE SHRI S. K. TULSIYAN ARGUED THAT THE SAME ADDITIONS, WHICH WAS ORIGINALLY MADE U/S. 143(3) OF THE ACT, CANNOT BE REPEATED WHILE FRAMING REASSESSMENT U/S. 153A OF THE ACT. NO W, THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST REPETITION OF INCOME U/S. 153A OF THE ACT, WHICH WAS ORIGINALLY ASSESSED U/S. 143(3) OF THE ACT AT RS.18,30,597/- AND THEREAFTER CALCULATED THE TAX PAYABLE AND SURCHARGE AND INTEREST ACCORDINGLY. 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE ASSESSMENT FRAMED U/S. 153A R.W.S. 143(3) OF THE ACT DATED 13.12.2009 THAT THE AO WHILE COMPUTING INCOME OF THE ASSESSEE HAS O NLY TAKEN INTO CONSIDERATION THE INCOME DETERMINED/ASSESSED U/S. 143(3) OF THE ACT DATED 28 .12.2006. THE RELEVANT PORTION OF COMPUTATION IS AS UNDER: 4. THE TOTAL INCOME OF THE ASSESSEE COMPANY IS COM PUTED AS UNDER: TOTAL INCOME AS DETERMINED U/S. 143(3) DT. 28.12.06 : RS.18, 30,597/- TAX THEREON : RS.6,40,710/- ADD: SURCHARGE @ 2.5% : RS. 16,018/- RS.6,56,728/- LESS: ADVANCE TAX : RS.1,25,000/- RS.5,31,728/- ADD: INTT. U/S. 234B : RS.1,56,106/- 234C : RS. 5,430/- 3 ITA NO.176/K/2012 GANESH GRAINS LTD. AY : 2004-05 RS.6,93,264/- LESS: PAID U/S. 140A : RS. 74,469/- RS.6,18,795/- ADD: INTT. U/S. 220(2) : RS.2,16,578/- TAX PAYABLE RS.8,35,373/- FROM THE ABOVE AND THE ASSESSMENT ORDER, IT IS NOTI CED THAT THE AO HAS NOT MADE ANY ADDITION IN PURSUANCE TO SEARCH AND SEIZURE OPERATION. EVEN CI T(A) DISMISSED THE APPEAL OF THE ASSESSEE AS INFRUCTUOUS AS NO ADDITION HAS BEEN MADE U/S. 15 3A R.W.S. 143(3) OF THE ACT. CIT(A) OBSERVED IN PARA 3 OF HIS ORDER AS UNDER: 3. I HAVE CAREFULLY CONSIDERED THE FACT OF THE CAS E. THERE IS NO MERIT IN THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT. IN THE CASE UNDER C ONSIDERATION THE A.O. HAS NOT MADE ANY ADDITION. THE INCOME ASSESSED VIDE ORDER DATED 28.12.2006 UNDER SECTION 143(3) HAS BEEN TAKEN BY THE AO AS INCOME ASSESSED UNDER S ECTION 153A/143(3) OF THE ACT. SINCE NO ADDITION HAS BEEN MADE IN THE ORDER UNDER CONSIDERATION, THERE IS NO GROUND OR REASON FOR FILING APPEAL AGAINST THE ORDER OF TH E A.O. IT IS A MISCONCEPTION THAT THE A.O. HAS CREATED A DUPLICATE DEMAND VIDE ORDER DATE D 31.12.2009 PASSED UNDER SECTION 153A/143(3) OF THE ACT. HENCE THE APPEAL FILED BY THE APPELLANT BECOME INFRUCTUOUS. IN RESULT THE APPEAL IS DISMISSED. 6. FIRST OF ALL, FROM THE ABOVE FACTS AND THE PROVI SIONS RELATING TO SEARCH ASSESSMENT I.E. SECTION 153A TO 153D OF THE ACT, THE PROCEDURE PRES CRIBED U/S. 153A OF THE ACT IS THAT THE AO SHALL CALL UPON THE ASSESSEE, WHO IS SEARCHED, TO F URNISH RETURNS OF INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED. THE ASSESSEE SHALL FURNISH THE RETUR N OF INCOME ON RECEIPT OF NOTICE AND THEREAFTER THE AO IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF DIFFERENT ASSESSMENT YEARS FALLING WITHIN SIX ASSESSMENT YEARS. BUT A Q UESTION ARISES NOW AS TO WHAT WOULD HAPPEN TO THE REGULAR ASSESSMENTS COMPLETED AND NO PROCEED INGS RELATING TO ASSESSMENT ARE PENDING ON THE DATE ON WHICH THE SEARCH WAS INITIATED. THE AN SWER IS GIVEN BY THE SECOND PROVISO TO SECTION 153A OF THE ACT, WHICH SAYS THAT IF ANY OF THOSE RETURNS IS OR ARE PENDING, THE ASSESSMENT OR REASSESSMENT RELATING TO THOSE RETURN S SHALL ABATE. BUT WHERE THE RETURN IS FILED FOR ANY OF THE ASSESSMENT YEARS FALLING WITHIN SIX ASSESSMENT YEARS AND ASSESSMENT IS COMPLETED BEFORE THE DATE OF INITIATION OF SEARCH, WHAT WILL HAPPEN TO THAT COMPLETED ASSESSMENT. ACCORDING TO US, THE AO TO FOLLOW THE PROCEDURE PRE SCRIBED U/S. 153A OF THE ACT AND IN AN ATTEMPT TO ENSURE THAT THE INCOME REFLECTED BY THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH OR UNACCOUNTED INCOME FOUND DURING THE COURSE OF SE ARCH HAS BEEN ACCOUNTED FOR BY THE SEARCHED PERSON. IN THE PRESENT CASE, IT IS CLEAR FROM THE ASSESSMENT ORDER, THAT NO UNDISCLOSED INCOME OR UNACCOUNTED INCOME WAS FOUND DURING THE C OURSE OF SEARCH FROM THE ASSESSEE AND 4 ITA NO.176/K/2012 GANESH GRAINS LTD. AY : 2004-05 AO HAS JUST REPEATED THE INCOME ALREADY ASSESSED U/ S. 143(3) OF THE ACT, EVEN THOUGH THAT ASSESSMENT FRAMED WAS NOT ABATED. IT IS CLEAR FROM THE ASSESSMENT ORDER THAT THE AO HAS TAKEN ONLY THE FIGURE ASSESSED U/S. 143(3) OF THE ACT. A SSESSING OFFICER, NO DOUBT CAN TAKE THIS FIGURE ASSESSED U/S. 143(3) OF THE ACT ORIGINALLY FOR THE PURPOSE OF COMPUTATION OF TOTAL INCOME INTO CONSIDERATION U/S. 153A OF THE ACT BUT THE SAME IS TO BE REDUCED FOR THE PURPOSE OF COMPUTATION OF TAXES, INTEREST AND PENALTY FOR THE REASON THAT THE ORIGINAL ASSESSMENT U/S. 143(3) OF THE ACT, THE ASSESSMENT ORDER IS INEXISTENCE AND THAT HAS NO T BEEN ABATED. THE DEMANDS ALREADY CREATED U/S. 143(3) OF THE ACT IS AVAILABLE ON THE RECORDS OF THE INCOME TAX DEPARTMENT AND THE SAME CANNOT BE USED FOR DOUBLE ADDITION AND THAT IS NOT THE PURPOSE OF PROVISIONS OF SECTION 153A I.E. THE PROCEDURE FOR SEARCH ASSESSMENT. IN SUCH CIRCU MSTANCES, WE DIRECT THE AO TO REDUCE THIS INCOME FROM COMPUTATION MADE U/S. 153A OF THE ACT A ND AMEND THE ASSESSMENT ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 19.04.2013 SD/- SD/- . . . . . . . . , #! #! #! #! $'# $'# $'# $'# , (K. K. GUPTA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 19TH APRIL, 2013 !12 $&34 $5! JD.(SR.P.S.) 5 ITA NO.176/K/2012 GANESH GRAINS LTD. AY : 2004-05 / 6 -$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT M/S. GANESH GRAINS LIMITED, (FORMERLY G ANESH WHEAT PRODUCTS PVT. LTD.) 174, C. R. AVENUE, KOLKAT A-700 007. 2 -.+, / RESPONDENT DCIT, C.C-V, KOLKATA. 3 . $/& ( )/ THE CIT(A), KOLKATA 4. 5. $/& / CIT KOLKATA 7!>$ -$& / DR, KOLKATA BENCHES, KOLKATA .7 -$/ TRUE COPY, /&?/ BY ORDER, # '4 /ASSTT. REGISTRAR .