YOGESH S. KARIA, PUNE V. DCIT 15(1), MUMBAI

ITA 2148/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1779 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 06-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K KRISHNA MURTY
• Keywords: Search and seizure
• Section: 143(3); 153A; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.5630/M/2012 ASSESSMENT YEAR: 2006-07 JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE -15(10), ROOM NO.104, MATRU MANDIR, 1 ST FLOOR, TARDEO RD., MUMBAI - 400007 VS. SHRI YOGESH S. KARIA, 14, PADIA BHUVAN, 3 RD FLOOR, 95-97 BHANDARI STREET, MASJID BANDAR, MUMBAI - 400003 PAN: ANEPK6161F (APPELLANT) (RESP ONDENT) ITA NO.2148 /M/2014 ASSESSMENT YEAR: 2006-07 SHRI YOGESH S. KARIA, 14, PADIA BHUVAN, 3 RD FLOOR, 95-97 BHANDARI STREET, MASJID BANDAR, MUMBAI - 400003 PAN: ANEPK6161F VS. DCIT 15(1), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI DHARMESH SHAH, A.R. REVENUE BY : SHRI K. KRISHNA MURTY, D.R. DATE OF HEARING : 06.10.2015 DATE OF PRONOUNCEMENT : 31.12.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED ARE TWO APPEALS ONE BY THE ASS ESSEE AND THE OTHER BY THE REVENUE. THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER DATED 11.06.2012 OF THE COMMISSIONER OF INCOME TAX (APPEA LS) [HEREINAFTER REFERRED TO AS THE CIT(A)] IN RELATION TO THE ORIGINAL ASSES SMENT ORDER DATED 29.12.2008 WHEREAS THE REVENUE HAS PREFERRED THE PRESENT APPEA L AGAINST THE ORDER OF THE ITA NO.5630/M/2012 & 2148/M/14 SHRI YOGESH S. KARIA 2 LD. CIT(A) DATED 11.06.2012 IN RELATION TO THE ASSE SSMENT ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT DA TED 23.12.2010. 2. THE TECHNICAL POINT INVOLVED IN BOTH THE ABOVE T ITLED APPEALS IS THAT PRIOR TO THE PASSING OF THE ORIGINAL ASSESSMENT ORDER UND ER SECTION 144A READ WITH SECTION 143(3) OF THE ACT ON 29.12.08, A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED ON 26.06.07 IN THE CASE OF PARWANI GROUP OF CASES (PARWANI GROUP COMPANIES). THE ASSE SSEE BEING CONNECTED PERSON WITH THE PARWANI GROUP, THE PROVISIONS OF SE CTION 153C OF THE ACT WERE INVOKED IN THE CASE OF THE ASSESSEE AND A NOTICE UN DER SECTION 153C OF THE ACT DATED 19.03.10 WAS ISSUED AND SERVED UPON THE ASSES SEE ACCORDINGLY. IN THE ORIGINAL ASSESSMENT COMPLETED UNDER SECTION 144A RE AD WITH SECTION 143(3) OF THE ACT VIDE ORDER DATED 29.12.08, CERTAIN ADDITION S WERE MADE IN THE CASE OF THE ASSESSEE. IDENTICAL ADDITIONS WERE MADE BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) IN THE SUBSEQUE NT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT. 3. THE LD. CIT(A), VIDE HIS ORDER DATED 11.06.12 IN RELATION TO THE ORIGINAL ASSESSMENT PROCEEDINGS, HAS UPHELD THOSE ADDITIONS WHEREAS IN APPEAL IN RELATION TO ASSESSMENT PROCEEDINGS CONDUCTED UNDER SECTION 153C OF THE ACT, HE RECORDED THAT SINCE THE IDENTICAL ADDITIONS HAVE BEEN CONFIRMED IN THE ORIGINAL ASSESSMENT ORDER, HENCE THE SAME ADDITIONS WERE NOT WARRANTED IN SUBSEQUENT ASSESSMENT MADE UNDER SECTION 153C OF TH E ACT. 4. THE LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATT ENTION TO THE PROVISIONS OF SECTION 153A READ WITH SECTION 153C OF THE ACT W HEREIN AS PER THE 2 ND PROVISO TO SUB SECTION (1) OF SECTION 153A, IT HAS BEEN PROVIDED THAT IN CASE OF SEARCH ACTION UNDER SECTION 132A THE ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THE SAID SUB SECTION PENDING O N THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION U NDER SECTION 132A AS THE ITA NO.5630/M/2012 & 2148/M/14 SHRI YOGESH S. KARIA 3 CASE MAY BE SHALL ABATE. HOWEVER, IN CASE OF OTHER PERSON, WHEREIN THE PROCEEDINGS UNDER SECTION 153C OF THE ACT HAVE BEEN INITIATED IT HAS BEEN PROVIDED THAT THE REFERENCE TO THE DATE OF INITIATI ON OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A AS REFERRED TO IN THE 2 ND PROVISO TO SUB SECTION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUM ENTS SEIZED OR REQUISITIONED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSO N. THE LD. A.R. OF THE ASSESSEE HAS, THUS, CONTENDED THAT THE SEIZED MATER IAL/DOCUMENTS HAD ALREADY BEEN RECEIVED BY THE AO PRIOR TO THE FINALIZATION O F THE ORIGINAL ASSESSMENT PROCEEDINGS AND THUS, THE ORIGINAL ASSESSMENT PROCE EDINGS SHOULD BE DEEMED TO BE TREATED AS ABATED WHEREAS THE AO HAS COMPLETED T HE ORIGINAL ASSESSMENT PROCEEDINGS ON 29.12.08. HE HAS FURTHER CONTENDED THAT THE VALID ASSESSMENT PROCEEDINGS WOULD HAVE BEEN UNDER SECTION 153C OF T HE ACT WHEREAS THE LD. CIT(A) HAS UPHELD THE ORIGINAL ASSESSMENT PROCEEDIN GS, HOWEVER, HE HAS NOT CONFIRMED ANY ADDITIONS IN RELATION TO ASSESSMENT M ADE UNDER SECTION 153C OF THE ACT OBSERVING THAT SINCE THE IDENTICAL ADDITION S HAVE BEEN MADE IN THE ORIGINAL ASSESSMENT, NO FURTHER ADDITIONS WERE WARR ANTED. THE LD. A.R. OF THE ASSESSEE, THUS, HAS SUBMITTED THAT SINCE THE FIRST ASSESSMENT ORDER IS VOID AS THE SAME STOOD ABATED AND NO ADDITIONS HAVE BEEN MADE I N THE SUBSEQUENT ASSESSMENT ORDER UNDER SECTION 153C OF THE ACT, HEN CE NO ADDITION WAS WARRANTED IN THE CASE OF THE ASSESSEE. THE REVENUE, HOWEVER, HAS AGITATED THE ACTION OF T HE LD. CIT(A) HOLDING THAT THE ADDITION UNDER SECTION 153C OF THE ACT WAS NOT WARRANTED ON THE GROUND THAT THE SAME WAS ALREADY MADE IN THE OR IGINAL ASSESSMENT ORDER. 5. CONSIDERING THE ABOVE CONTENTIONS AND AFTER GOIN G THROUGH THE RECORD, WE FIND THAT THE ISSUE IS REQUIRED TO BE LOOKED INT O BY THE LD. CIT(A) AFTER VERIFYING THE NECESSARY RECORDS. IT IS MADE CLEAR THAT IF IT IS FOUND THAT THE SEIZED MATERIAL WAS RECEIVED BY THE AO BEFORE THE C ONCLUSION OF THE ORIGINAL ASSESSMENT PROCEEDINGS, THEN THE ORIGINAL ASSESSMEN T PROCEEDINGS SHOULD ABATE ITA NO.5630/M/2012 & 2148/M/14 SHRI YOGESH S. KARIA 4 AND THE VALIDITY OF THE ADDITIONS, IF ANY, WILL HAV E TO BE DECIDED IN THE SUBSEQUENT ASSESSMENT PROCEEDINGS UNDER SECTION 153 C OF THE ACT. HOWEVER, IN THE CASE THE ORIGINAL ASSESSMENT PROCEEDINGS WER E COMPLETED BEFORE RECEIPT OF SEIZED MATERIAL BY THE AO OF THE ASSESSEE, THEN IN THAT CASE IDENTICAL ADDITIONS, IF ANY, CAN BE REPEATED FOR THE SAKE OF CLARIFY AND FOR COMPLYING THE STATUTORY REQUIREMENT OF PASSING A FRESH ORDER UNDE R SECTION 153C OF THE ACT, BUT THERE WILL NOT BE DOUBLE TAXATION ON ACCOUNT OF THE SAME ADDITIONS. HOWEVER, FRESH ADDITIONS, IF ANY, COULD BE MADE ONL Y ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTI ON OTHERWISE THE AO WILL BE BOUND TO PASS FORMAL ORDER REPEATING THE SAME ADDIT IONS AND IN THAT EVENT THE ORIGINAL ASSESSMENT ORDER WILL STAND AS SUCH AND TH E LD. CIT(A) WILL DECIDE THE APPEAL OF THE ASSESSEE IN THAT EVENT AFRESH. IF IN THE OPINION OF THE LD. CIT(A), THE ORIGINAL ASSESSMENT PROCEEDINGS ARE TO BE TREAT ED AS ABATED, THEN HE WILL REMAND THE MATTER TO THE AO TO PASS A FRESH ASSESSM ENT ORDER UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT. WITH THE ABOVE OBSERVATION, BOTH THE APPEALS ARE RESTORED TO THE FILE OF THE LD. CIT (A) FOR ADJUDICATION AFRESH. 6. IN THE RESULT, BOTH THE APPEALS ARE TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2015. SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 31.12.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ ITA NO.5630/M/2012 & 2148/M/14 SHRI YOGESH S. KARIA 5 BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.