BMW Industries Limited, Kolkata V. C.I.T Central - II,Kolkata, Kolkata

ITA 1762/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83231 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 05-06-2013
• Court: TRIBUNAL
• Assessee Lawyers: D S DAMLE
• Keywords: Period of limitation
• Section: 143(3); 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HON BLE SRI MAHAVIR SINGH, JM& HON BLE SRI SHAMIM YAHYA , A M ] ITA NO.1762/KOL/2013 ASSESSMENT YEAR : 2004 - 05 ( A PPELLANT ) (RESPONDENT) BMW INDUS TRIES LIMITED - VS - C.I.T., CENTRAL - II, KOLKATA KOLKATA (PAN: AABCB 0986 G) FOR THE APPELLAN T SHRI D.S.DAMLE, FCA FOR THE RESPONDENT SRI VIJAY KUMAR, CIT DATE OF HEARING : 08 .12.2014 DATE OF PRONOUNCEMENT : 11.12.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF L D. C.I.T - CENTRAL - II , KOLKATA DT. 22.03.2013 AND PERTAIN S TO ASSESSMENT YEAR 2004 - 05. 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1)FOR THAT ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE, THE CIT ERRED IN LAW AND ON FACTS IN PASSING AN ORDER UNDER SECTION 263 FOR THE ASSESSMENT YEAR 2004 - 05 WHICH WAS BEYOND THE PERIOD OF LIMITATION ON 22.03.3013. 2) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT WAS UNJUSTIFIED IN COMPUTING THE PERIOD OF LIMITATION WITH REFERENCE TO THE ASSESSMENT ORDER PASSED U/S 153A/143(3) DATED 30.12.2010 EVEN THOUGH THE PAYMENT OF DIVIDEND DISTRIBUTION TAX WAS NOT SUBJECT MATTER OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 1 53A OF THE I.T.ACT, 1961. 3) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE PERIOD OF LIMITATION WITH REFERENCE TO THE ALLEGED ERROR WAS REQUIRED TO BE COMPUTED WITH REFERENCE TO THE ORDER U/S 143(3) PASSED ON 29 - 12 - 2006 WHICH HAD NOT ABATE D PURSUANT TO THE SEARCH AND IN THAT VIEW OF THE MATTER THE ORDER PASSED UNDER SECTION 263 DATED 22.03.2013 BE HELD TO BE PASSED BEYOND THE PERIOD OF LIMITATION. 4) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT WAS UNJUSTIFIED IN HOLD ING THE ORDER ERRONEOUS FOR THE ALLEGED SHORT PAYMENT OF DIVIDEND DISTRIBUTION TAX ON THE WRONG UNDERSTANDING OF THE LEGAL PROVISIONS OF THE COMPANIES ACT, 1956 CONCERNING DECLARATION AND PAYMENT OF DIVIDEND. 5 ) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE CIT WAS UNJUSTIFIED IN HOLDING THE ORDER ERRONEOUS FOR THE ALLEGED SHORT PAYMENT OF DIVIDEND DISTRIBUTION TAX ON THE WRONG UNDERSTANDING OF THE LEGAL PROVISIONS OF THE COMPANIES ACT, 1956 CONCERNING DECLARATION AND PAYMENT OF DIVIDEND. ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 2 6) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT FAILED TO APPRECIATE THAT UNDER THE COMPANIES ACT, 1956 THE BOARD HAS ONLY THE POWER TO RECOMMEND THE RATE OF DIVIDEND BUT THE POWER TO DECLARE DIVIDEND SOLELY VESTS IN THE SHAREHOLDERS AND WHICH CAN ONLY BE EXERCISED BY THEM AT THE ANNUAL GENERAL MEETING. 7) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT FAILED TO APPRECIATE THAT SINCE THE SHAREHOLDERS DID NOT APPROVE THE DIVIDEND RECOMMENDED BY THE BOARD OF DIRECTO RS AND THE DIVIDEND RATE APPROVED BY THE SHAREHOLDERS IN THE AGM OF THE APPELLANT HELD ON 30/12/2004 WAS ONLY 5% INSTEAD OF THE RECOMMENDED RATE OF 10% THERE WAS NO SHORTFALL IN THE PAYMENT OF DIVIDEND DISTRIBUTION TAX AND IN THAT VIEW OF THE MATTER THE OR DER OF THE AO WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 8) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT U/S 263 DATED 22.03.2013 BE SET ASIDE AND/OR CANCELLED. 9) FOR THAT THE APPELLANT CRAVE S LEAVE TO SUBMIT ADDITIONAL GROUNDS AND/OR AMEND OR ALTER THE GROUNDS ALREADY TAKEN EITHER AT THE TIME OF HEARING OF THE APPEAL OR BEFORE. 3. IN THIS CASE IN ORDER PASSED U/S 263 OF THE ACT ON 22.03.2013 BY THE LD. CIT HAS OBSERVED THAT ON EXAMINATION O F THE RECORDS, I FIND THAT ASSESSEE HAD DECLARED DIVIDEND OF RS. 1,24,00,000/ - . TAX THEREON WAS R S.15,50,000/ - . BUT, THE ASSESSEE HAD PAID TAX AND INTEREST OF RS.8,10,262/ - ON 06.05.2005 (I.E. AFTER 7 MONTHS) ON THE DISTRIBUTED DIVIDEND OF R S.62,00,000/ - . A S PER SUB SECTION (3) OF SECTION 115O TAX WAS REQUIRED TO BE PAID ON THE DECLARATION OF ANY DIVIDEND. THEREFORE, THE TAX ON DISTRIBUTED PROFIT (DECLARED) WAS REQUIRED TO BE PAID ON THE DECLARED DIVIDEND. THUS, THERE WAS SHORT PAYMENT OF DIVIDEND TAX OF RS. 7,39,738/ - [RS.15,50,000/ - - RS.8,10,262/ - ] AND INTEREST U/S 115P @ 1% ON RS.7,39,738/ - OF R S.51,781/ - AGGREGATING TO RS.9,23,699/ - . 4. CONSIDERING THE ABOVE SHOW CAUSE NOTICE WAS GIVEN TO THE ASSESSEE. AGAINST THE ABOVE SHOW CAUSE NOTICE ASSESSEE EXPLAI NED AS UNDER : - THE IMPUGNED PROCEEDING U/S 263 OF THE INCOME TAX ACT, 1961 INITIATED THAT THE ASSESSING OFFICER VIDE HIS ORDER DATED 30.12.2010 IN THE ORDER PASSED U/S 153A/143(3), IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. I N THIS CONNECTION IT IS SUBMIT TED AS UNDER : (1) THAT THE DIRECTOR HAD PROPOSED DIVIDEND OF RS.1,24,00,000/ - FOR THE ACCOUNTING YEAR 2003 - 04 RELEVANT TO ASSESSMENT YEAR 2004 - 05 @10%. (2) THE PROPOSED DIVIDEND IS DECLARED IN THE ANNUAL GENERAL MEETING OF THE SHARE HOLDER. (3) THE SHARE HOLDER HAS APPROVED DIVIDEND OF 5% AMOUNTING TO RS.62,00,000/ - IN THE ANNUAL GENERAL MEETING. (4) AS PER SUB SECTION (3) OF SECTION 115O TAX WAS REQUIRED TO BE PAID ON THE AMOUNT DECLARED, DISTRIBUTED OR PAID BY A DOMESTIC COMPANY BY WAY OF D IVIDEND. (5) ACCORDINGLY WE HAVE PAID AX ON DISTRIBUTED PROFIT OF RS.62,00,000/ - . ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 3 (6) THAT WE HAVE WRITTEN BACK OF PROPOSED DIVIDEND FOR FINANCIAL YEAR 2003 - 04 IN THE FINANCIAL YEAR 2004 - 05 AMOUNTING TO RS.62,00,000/ - AND ACCORDINGLY WE HAVE ALSO WRITTEN BACK CORP ORATE DIVIDEND TAX ON ABOVE WRITTEN BACK OF PROPOSED DIVIDEND AMOUNTING TO RS.7,75,000/ - . (7) THAT THERE IS NO SHORT PAYMENT OF DIVIDEND TAX OF RS.7,75,000/ - . AS PER LAW AND NEEDS NO REVISION IN AS MUCH AS HIS ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THE PROCEEDINGS INITIATED, THEREFORE MAY BE KINDLY DROPPED. 5. THE LD. CIT WAS NOT CONVINCED BY THE EXPLANATION SUBMITTED BY THE ASESSEE. HE DECIDED THE ISSUE AGAINST THE ASSESSEE AND CONCLUDED AS UNDER : - III.5. ACCORDING TO T HE PROVISIONS OF SECTION 115O OF THE INCOME TAX ACT 1961 AFTER DECLARATION OF DIVIDEND BY THE COMPANY, DIVIDEND TAX BECOMES PAYABLE ON THE WHOLE OF SUCH AMOUNT. WHEN SUCH TAX IS NOT PAID WITHIN TIME, INTEREST U/S 115P OF THE ACT IS ATTRACTED. I, THEREFORE, HOLD ON THE BASIS OF FACTS AVAILABLE ON RECORD THAT ONCE THE DIVIDEND IS DECLARED, THE ASSESSEE WAS LIABLE TO PAY DIVIDEND TAX ON THE WHOLE OF SUCH AMOUNT. AND AS PART OF SUCH TAX WERE NOT PAID WITHIN THE TIME ALLOWED AS PER LAW, INTEREST U/S 115P OF THE INCOME TAX ACT WAS ALSO LEVIABLE IN THE ASSESSMENT. IV. IN VIEW OF ALL THE FACTS ABOVE AND PROVISIONS OF LAW, I HOLD THAT THE ORDER DATED 30.12.2010 U/S 143(3)/153A IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, AND SET IT ASIDE ON THIS L IMITED ISSUE. I, THEREFORE, DIRECT THE A.O. TO PASS NECESSARY ORDERS IN THIS CASE AMENDING THE ASSESSMENT ORDER DATED 30.12.2010 ON THE BASIS OF THE ABOVE FINDINGS. HE SHALL ACCORD DUE OPPORTUNITY OF HEARING AND FINALIZE THE CASE AT THE EARLIEST PREFERABLY WITHIN THREE MONTHS OF THIS ORDER. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS EXERCISE OF JURISDICTION U/S 263 OF THE ACT HAS BEEN MADE FOR AN ORDER WHICH WAS PASSED U/S 153A/143(3) OF THE ACT. HE SUBMITTED THAT ORIGINAL ORDER IN THIS CASE WAS PASSED U/S 143(3) OF THE ACT ON 29,12,2006. THE MATTER IN THAT YEAR ALSO TRAVELLED TO THE TRIBUNAL AND THE TRIBUNAL HAD PASSED AN ORDE R AGAINST DEPARTMENTAL APPEAL IN THIS CASE ON 28.09.2009. SUBSEQUENTLY SEARCH WAS CONDUCTED ON 30.04.2008. PURSUANT TO THE SEARCH ORDER U/S 153A/ 143(3) OF THE ACT WAS PASSED ON 30.12.2010. THE LD. COUNSEL OF THE ASSESSEE CONTENDED THAT NO INCRIMINATING MAT ERIALS WERE FOUND DURING THE COURSE OF SEARCH. THE LD. COUNSEL PLEADED THAT WHEN NO INCRIMINATING MATERIALS WERE FOUND DURING THE SEARCH AND THERE WAS NO CASE OF ASSESSMENT FOR THAT YEAR ABATING , THE ADDITION PROPOSED BY THE LD.CIT FOR NON PAYMENT OF DIVI DEND TAX U/S 115O OF THE ACT IS NOT SUSTAINABLE. THE LD.COUNSEL FURTHER ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 4 SUBMITTED THAT SINCE THE ORIGINAL ASSESSMENT IN THIS CASE WAS PA SSED U/S 143(3) ON 29.12.2006, E XERCISE OF JURISDICTION U/S 263 OF THE ACT BY THE LD. CIT WOULD RELATE TO THAT YEAR. IN THIS VIEW OF THE MATTER HE CLAIMED THAT THE ASSUMPTION OF JURISDICTION BY THE LD. CIT IS BARRED BY LIMITATION. 6.1. AS REGARDS THE MERITS OF THE CASE THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THIS CASE PROVISION OF RS.1.24 CRORES WAS MADE IN THE A CCOUNTS FOR PROPOSED DIVIDEND OF RS.1.24 CRORES AND COMPANY HAD MADE PROVISION OF RS.15.50 LAKHS FOR DIVIDEND TAX THEREON. THE BOARD OF THE COMPANY HAS RECOMMENDED THE DIVIDEND @RE.1 . THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ANNUAL GENERAL MEETI NG IN THIS CASE WAS EXTENDED AFTER DUE APPROVAL. THE ANNUAL GENERAL MEETING WAS ACTUALLY HELD ON 30.12.2004 . IN THE AGM THE SHAREHOLDERS APPROVED DIVIDEND @.50P AMOUNTING TO RS. 62 LAKHS AND ON THIS SUM DIVIDEND TAX CAME TO RS.7.75 LAKHS. THE LD. COUNSEL SU BMITTED THAT IT WAS THIS SUM WHICH WAS PAID BY THE ASSESSEE COMPANY AS DIVIDEND TAX. THE LD.COUNSEL SUBMITTED THAT THIS WAS PERFECTLY IN ACCORDANCE WITH LAW. THE LD. COUNSEL REFERRED TO THE PROVISION OF SECTION 115O OF THE ACT. HE SUBMITTED THAT DIVIDEND T AX IS DUE ON ANY AMOUNT DECLARED, DISTRIBUTED OR PAID BY ANY COMPANY. HE SUBMITTED THAT IN THIS CASE DIVIDEN D WAS DECLARED ON 30.12.2004, W HEN THE AGM WAS HELD AND THE SHARE HOLDERS APPROVED DIVIDEND. THE LD. COUNSEL SUBMITTED THAT PROVISION OF DIVIDEND IN THE ACCOUNTS OR ANY RECOMMENDATION BY THE BOARD OF DIRECTORS FOR THE PROPOSED DIVIDEND CANNOT BE TERMED AS DECLARATION OF DIVIDEND. FOR THIS PROPOSITION THE LD.COUNSEL ALSO REFERRED TO THE PROVISION OF SECTION 217 OF THE COMPANIES ACT. ACCORDINGLY THE LD. COUNSEL SUBMITTED THAT EXERCISE OF JURISDICTION OF THE LD. CIT U/S 263 OF THE ACT IS NOT SUSTAINABLE FROM THIS POINT OF VIEW. 6.2. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE PROVIDED A SUM OF RS.15.5 LAKHS IN THESE ACCOUNTS AND BOARD OF D IRECTORS HAVE ALSO RECOMMENDED THE SAME. HENCE HE SUBMITTED THAT PROVISIONS OF SECTION 115O OF THE ACT ARE ATTRACTED AND THE ASSESSEE WAS LIABLE TO PAY DIVIDEND TAX OF RS.15.5 LAKHS. AS REGARDS THE PLEA OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FO UND DURING THE COURSE OF SEARCH THE LD. ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 5 DR SUBMITTED THAT THE SAME IS NOT RELEVANT. ACCORDINGLY HE SUBMITTED THE ORDER OF LD. CIT IS SUSTAINABLE. 6.3. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IT IS UNDISPUTED FACT OF THE CASE THAT THE DIVIDEND PROPOSED IN THE ACCOUNTS BY THE BOARD OF DIRECTORS ON 31.03.2004 WAS RS.1.24 CRORES AND THE PROVISION FOR DIVIDEND DISTRIBUTION TAX THEREON AMOUNTED TO RS.15.5 LAKHS . IN THE AGM OF THE COMPANY HELD ON 30.12.2004 THE DIVIDEND DECLARED WAS RS.62 LAKHS AND THE DIVIDEND DISTRIBUTION TAX DUE WAS RS.7.75 LAKHS. THIS WAS DULY PAID BY THE ASSESSEE COMPANY. NOW WE MAY GAINFULLY REFER TO SECTION 115O(1) AND (3) OF THE ACT : 115O (1) [NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT AND SUBJECT TO THE PROVISIONS OF THIS SECTION, IN ADDITION TO THE INCOME - TAX CHARGEABLE IN RESPECT OF THE TOTAL INCOME OF A DOMESTIC COMPANY FOR ANY ASSESSMENT YEAR, ANY AMOUNT DECLARED, DISTRIBUTED OR PAID BY SUCH COMPANY BY WAY OF DIVIDENDS (WHETHER INTERIM OR OTHERWISE) ON OR AFTER THE 1 ST DAY OF APRIL, 2003, WHETHER OUT OF CURRENT OR ACCUMULATED PROFITS SHALL BE CHARGED TO ADDITIONAL INCOME - TAX (HEREINAFTER REFERRED TO AS TAX ON DISTRIBUTED PROFITS) AT THE RATE OF FIFTEEN PER CENT] (3) THE PRINCIPAL OFFICER OF THE DOMESTIC COMPANY AND THE COMPANY SHALL BE LIABLE TO PAY THE TAX ON DISTRIBUTED PROFITS TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN FOURTEEN DAYS FROM THE DATE OF (A) DECLARATION OF ANY DIVIDEND; OR (B) DISTRIBUTION OF ANY DIVIDEND; OR (C) PAYMENT OF ANY DIVIDEND, WHICH EVER IS EARLIEST. 6.4. THE READING OF THE ABOVE SECTION AMPLY CLEAR THAT ASSESSEE COMPANY IS LIABLE TO PAY TAX ON DISTRIBUTED PROFITS WITHIN 14 DAYS FROM THE DATE OF DECLARATION OF DIVIDEND OR DISTRIBUTION OF DIVIDEND OR PAYMENT OF DIVIDEND WHICHEVER IS EARLIER. IN THE PRESENT CASE BEFORE US THE DIVIDEND WAS DECLARED IN THE ANNUAL GENERAL MEETING ON 30. 12.2004, W HEN THE AGM WAS HELD . T HE PROVISION FOR DIVIDEND MADE IN THE ACCOUNTS OR THE RECOMMENDATION OF THE BOARD OF D IRECTORS REGARDING THE PROPOSED DIVIDEND CANNOT BE CONSIDERED AS DECLARATION OF DIVIDEND. IN THIS REGARD WE MAY ALSO GAINFULLY REFER TO SECTION 205 AND 217 OF THE COMPANIES ACT, 1951. AS PER REGULATIONS 85 TABLE A OF SCHEDULE - I OF THE COMPANIES ACT, THE CO MPANY IN THE GENERAL MEETING MAY DECLARE DIVIDEND. IT IS ONLY U/S 205( 1)(A) THAT T HE POWER TO DECLARE INTERIM DIVIDEND HAS BEEN CONFERRED TO THE BOARD OF DIRECTORS. HENCE IT IS ONLY THE INTERIM ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 6 DIVIDEND THAT CAN BE DECLARED BY THE BOARD OF D IRECTORS. BUT T HE ISSUE BEFORE US D OES NOT RELATE TO INTERIM DIVIDEND BUT IT RELATES TO DECLARATION OF DIVIDEND WHICH CAN BE MADE ONLY BY THE COMPANY IN THE AGM ON THE RECOMMENDATION OF BOARD OF DIRECTORS. HENCE SINCE THE ANNUAL GENERAL MEETING TOOK PLACE ON 30.12.2004 A ND IN THE SAID AGM RS.62 LAKHS WAS DECLARED AND THE DIVIDEND DISTRIBUTION TAX THEREON CAME TO RS.7.75 LAKHS. WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE COMPANY WAS NOT LIABLE TO PAY DIVIDEND DISTRIBUTION TAX OF MORE THAN RS.7.75 LAKHS. HENCE WE HOL D THAT 263 ORDER PASSED BY THE LD. CIT IS NOT SUSTAINABLE ON MERITS. 6.5. AS REGARDS THE OTHER ISSUE PERTAINING TO JURISDICTION OF THE LD. CIT WE FIND THAT SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE HAVE ADEQUATE COGENCY. DE HORS ANY INCRIMINATING MA TERIAL WHEN THE ASSESSMENT IS NOT ABATED THE ADDITION U/S 153A IS NOT SUSTAINABLE. IT IS NOT DISPUTED BY THE REVENUE THAT NO INCRIMINATING MATERIAL WAS FOUND AT THE TIME OF SEARCH. THIS IS SUPPORTED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN T HE CASE OF AL CARGO GLOBAL LOGISTICS LIMITED VS DCIT (2012) 137 ITD 217 (SB)(MUM). 6.6. IN THIS CASE THE SPECIAL BENCH HAS HELD THAT (1) IN ASSESSMENT THAT IS ABATED AO RETAINS ORIGINAL JURISDICTION AS WELL AS THE JURISDICTION CONFERRED ON HIM BY SECTIO N 153A OF THE ACT FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY. (2) IN OTHER CASES ANY ADDITION TO THE INCOME ALREADY BEEN ASSESSED THE ASSESSMENTS U/S 153A OF THE ACT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERI AL I.E. (A) BOOKS OF ACCOUNTS AND OTHER DOCUMENTS FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND (B) UNDISCLOSED INCOME OR PROPERTY DISCLOSED IN THE COURSE OF SEARCH. ADMITTEDLY THE CASE BEFORE US IS NOT THE ONE W HERE ASSESSMENT IS ABATED. IT IS ALSO UNDISPUTED THAT NO INCRIMINATING MATERIAL WAS FOUND IN SEARCH. HENCE CLEARLY NO ASSESSMENT U/S 153A IS SUSTAINABLE. IN THIS VIEW OF THE MATTER WHEN ASSESSMENT ITSELF IS NOT SUSTAINABLE, NO EXERCISE OF JURISDICTION U/S 263 OF THE ACT ON SUCH ASSESSMENT IS SUSTAINABLE. THUS WE HOLD THAT ON MERITS AS WELL AS JURISDICTION THE ORDER OF THE LD. CIT IS NOT SUSTAINABLE. AS REGARDS THE ISSUE OF LD.CIT S ORDER BEING TIME BARRED WE FIND ITA.NO.1762/K/2013 BMW INDUSTRIES LTD. A.YR. 2004 - 05 7 THAT THE SAME IS NOW IN THE NATURE OF ACADEM IC INTEREST. HENCE WE ARE NOT ADVERTING TO THE SAME. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. O RDER PRONOUNCE D IN THE COURT ON 1 1/12/2014. SD/ - SD/ - [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 11.12.2014. R.G.(.P.S.) COPY OF THE O RDER FORWARDED TO: 1 . BMW INDUSTRIES LIMITED, 12/2, PARK MANSION, 57A, PARK STREET, KOLKATA - 700016. 2 CIT, CENTRAL - II , KOLKATA 3 . CIT(DR), KOLKATA B ENCHES, KOL KATA. TRUE COPY, BY ORDER, ASST. RE GISTRAR , ITAT, KOLKATA BENCHES