YOGESH SUNDERJI KARIA, MUMBAI V. DCIT 15(2), MUMBAI

ITA 1959/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88041 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 24-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2012
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Section: 143(3); 144

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO. 1959/M/2012 ( / ASSESSMENT YEAR : 2004 - 2005 ) MR. YOGESH SUNDERJI KARIA, 14, PADIA BHUVAN, 3 RD FLOOR, 95 - 97 BHANDARI STREET, MASJID BUNDER, MUMBAI 400 003. / VS. THE DCIT - WARD 15(1), MUMBAI. ./ PAN : ANEPK 6161F ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI DHARMESH SHAH / RESPONDENT BY : SMT. S. PADMAJA - CIT, DR / DATE OF HEARING : 17.12.2014 / DATE OF PRONOUNCEMENT : 14 .01.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 22.3.2012 IS AGAINST THE ORDER OF THE CIT (A) - 26, MUMBAI DATED 10.1.2012 FOR THE AY 2004 - 2005. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN PASSING ORDER U/S 250 OF THE ACT DATED 10.1.2012 PARTLY ALLOWING THE APPEAL FILED BY THE APPELLANT. 2. THE LD CIT (A) HAS ERRED IN LAW AND IN FACT IN NOT APPRECIATING THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/ S 143(3) OF THE ACT WAS BAD IN LAW AND INVALID. 3. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NOTICES ISSUED BY THE ASSESSING OFFICER U/S 153C OF THE ACT IS BAD IN LAW AND VOID AB INITIO. 2. BRINGING OUR ATTENTION TO THE ABOVE GROUNDS, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THIS IS THE CASE WHERE THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 153C OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. FURTHER, HE BROUGHT OUR ATTENTION TO THE ASSESSMENT ORDER DATED 23.12.2010 AND STATED THAT PARA 11 OF THE ASSESSMENT ORDER SHOWS THAT THE ONLY ADDITION MADE BY THE ASSESSING OFFICER IS AN ADDITION OF RS. 18 LAKHS, WHICH WAS ALREADY ASSESSED BY THE ASSESSING OFFICE R IN HIS 2 ORDER DATED 29.12 . 2008 U/S 144 R.W.S 153C OF THE ACT CONSEQUENT TO THE EARLIER SEARCH ACTION DATED 26.6.2007. OTHERWISE, THE ASSESSING OFFICER DOES NOT HAVE ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ON PARWANI GROUP OF CASES. THUS, THE ADDITION OF RS. 18 LAKHS MADE BY THE ASSESSING OFFICER IN HIS ASSESSMENT DATED 23.12.2010 IS NOT SUPPORTED BY ANY FRESH INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION ON 26.6.2007. THIS ADDITION IS MERELY REPETITION OF THE ONE ADDED IN THE ASSESSM ENT MADE U/S 143(3) READ WITH SECTION 153C OF THE ACT. THEREFORE, THIS ADDITION IS UNSUSTAINABLE IN LAW AND FOR THIS PROPOSITION, LD COUNSEL RELIED ON DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS [ITA NO.36 OF 2009, DATED 29.10.2010] AND THE DECISION OF THE ITAT MUMBAI IN THE CASE OF GOVIND AGARWAL VS. ACIT [ITA NO.3389/M/2011, DATED 10.1.2014] AND OTHERS. 3. ON THE OTHER HAND, LD DR BROUGHT OUR ATTENTION TO PARA 1 OF THE ASSESSMENT ORDER AND MENTIONED THAT THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 153C OF THE ACT IN VIEW OF THE INCRIMINATING DOCUMENTS PERTAINING TO THE ASSESSEE SEIZED DURING THE SEARCH. HE FURTHER COULD NOT DEMONSTRATE SPECIFIC SEIZED MATERIAL AND OR ANY INCRIMINATING MATERIAL FOUND FROM THE PREMISES OF THE ASSESSEES PARWANI GROUP. 4. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF EXISTENCE OF ANY INCRIMINATING MATERIAL SPECIF IC TO THE ASSESSEE AND TO THE AY UNDER CONSIDERATION. ON THE FACT OF THE ASSESSMENT ORDER NO PARTICULAR DOCUMENT WAS REFERRED WHICH WAS RELIED UPON BY THE ASSESSING OFFICER FOR MAKING ADDITIONS. FROM PARA 11 OF THE ASSESSMENT ORDER IT IS EVIDENT THAT SOLI TARY ADDITION OF RS. 18 LAKHS MADE WAS BASED ON THE ASSESSMENT ORDER DATED 29.12.2008 ALREADY PASSED BY THE ASSESSING OFFICER U/S 144 READ WITH SECTION 153C OF THE ACT WHICH IS NOTHING TO DO WITH THE SEARCH ACTION, WHICH IS THE SUBJECT MATTER OF THE NOTICE ISSUED U/S 153C F THE ACT. ON PERUSAL OF THE SAID JUDGMENT CITED BY THE LD COUNSEL IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS (SUPRA) AS WELL AS THE DECISION OF THE ITAT MUMBAI IN THE CASE OF GOVIND AGARWAL (SUPRA), IT IS A SETTLED LAW IN ALL AND BINDING ON THE TRIBUNAL THAT THE ADDITIONS NOT MADE BASED ON INCRIMINATING MATERIAL ARE NOT SUSTAINABLE IN LAW. ACCORDINGLY, ISSUES RAISED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 3 ORDER PRONOUNC ED IN THE OPEN COURT ON 14 TH JANUARY, 2015. SD/ - SD/ - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 14 .1.2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI